Shuaib Afolabi Salisu V. Jelili Kayode Amusan & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

The interlocutory and the substantive appeals in the matter were filed separately and the briefs were filed separately as well. Both appeals were given the same number as CA/I/NAHR/50A&8/2008. In the circumstance, I shall deal with the interlocutory appeal first before going into the substantive appeal.

This is an appeal against the ruling of the Ogun State Governorship/Legislative Houses Election Petition Tribunal, Abeokuta delivered on the 22nd of November, 2007 in which the Tribunal struck out 18 out of 30 paragraphs of the Petitioner’s petition on the ground that they were vague nebulous, ambiguous and without clarity of facts. Being dissatisfied with the ruling, Appellant appealed to this court vide a notice of appeal dated 28th November, 2007. The said notice of appeal was later amended pursuant to the order of this Court on the 5th of February, 2009.

The amended notice of appeal dated 12th of February, 2009 increased the grounds of appeal from the initial three to four pursuant to the order of this Court.

The Appellant herein contested the election held on 22nd of November, 2007 into the Federal House of Representatives in Abeokuta North/Obafemi, Owode/Odeda Federal Constituency on the platform of the Action Congress while the 1st Respondent contested the election on the platform of the Peoples Democratic Party. At the conclusion of the election, the 1st Respondent was declared winner and returned as the elected member of the Abeokuta North/Obafemi Owode/Odeda Federal Constituency of the House of Representative. Being dissatisfied with the result of the election which returned the 1st Respondent, Appellant filed a petition dated 21st of May, 2007 challenging the result of the said election before the lower Tribunal seeking a relief that:

It be determined that the National Assembly elections for Abeokuta North/Obafemi Owode/Odeda Federal Constituency in the House of Representatives held on 21st April, 2007 is invalid by reason of non compliance with the provisions of the Electoral Act 2006 and that the said election was vitiated by substantial non compliance with the mandatory statutory requirements which substantially affected the validity of the said election that none of the candidates in the said election can be validly returned as having validly won the said election.

The parties duly filed and exchanged pleadings. By a motion on notice dated 21st November, 2007, 1st Respondent challenged the competence of the petition and sought the following reliefs.

(1) An order striking out the entire petition on the following grounds:

(i) The facts of the petition and the ground(s) sought to be relied upon by the petitioner and on which the petition is based are nebulous, ambiguous, vague and unclear.

(iii) The Petitioner failed to comply with the mandatory requirement of the law by filing an Election Petition as prescribed by paragraph 4(1)(d) of the First Schedule to the Electoral Act 2006 by not stating clearly the facts of the Election Petition and the Ground(s) upon which the petition is based.

IN THE ALTERNATIVE

Striking out all the paragraphs of the averments which are vague, imprecise and unclear in the petition.

The parties filed and exchanged written addresses on the preliminary objection. In a considered ruling delivered on the 22nd of November, 2007, the lower Tribunal struck out paragraphs 15.1-15.8, 16, 17, 22, 24, 25, 26 and 29 (a)-(e) and (g)-(i) of the petition for lack of clarity. Appellant dissatisfied with the ruling appealed to this Court vide a notice of appeal dated 28th of November, 2007.

Appellant filed his 2nd amended brief of argument settled by Osasu Isibor Esq., in respect of the interlocutory appeal on the 18th of May, 2009 while the 1st Respondent’s brief of argument on the interlocutory appeal incorporating a preliminary objection settled by O. O. Ojutalayo Esq., was filed on 18/1/10 but deemed properly filed on 5/10/2010. The 2nd-529th Respondents did not file any brief. At the hearing of the appeal, Appellant and the 2nd – 529th Respondents although duly served with hearing notices against the hearing date were absent and unrepresented by Counsel. Since Appellant has filed his brief of argument, he was deemed to have argued the appeal pursuant to Order 17 rule (9) (4) of the Court of Appeal Rules 2007.