Being the text of the judgment delivered by Justice Ejembi Eko, JCA, on July 1, 2013 at the Court of Appeal, Akure, in the governorship litigation between the Action Congress of Nigeria (ACN) candidate, Mr. Rotimi Akeredolu (SAN), and Governor Segun Mimiko.
ON being text of the judg-ment delivered by Justice Ejembi Eko, JCA, on July 1, 2013 at the Court of Appeal, Akure, in the governorship litigation between the Action Congress of Nigeria (ACN) candidate, Mr. Rotimi Akeredolu (SAN) and Governor Segun Mimiko.
October 20, 2012 The Independent National Electoral Commission (INEC), the 3rd Respondent in this appeal conducted Governorship Election in Ondo State. The 1st Appellant, a candidate sponsored by the 2nd Appellant, Action Congress of Nigeria (ACN), contested the election with other candidates, including the 1st Respondent, Dr. Rahman O. Mimiko, who was sponsored by the 2nd Respondent, the Labour Party (LP). On October 21, 2012 INEC declared and returned the 1st Respondent as the winner of the election.
Dissatisfied with the declaration and/or return of the 1st Respondent by the INEC the Appellants filed their petition challenging the return of the 1st Respondent on 9th November, 2012 at the Governorship Election Tribunal sitting at Akure, Ondo State (hereinafter called “The Tribunal”). The petition is at pages 1- 150 of the Record.
The Respondents filed their respective replies to the petition. The Reply of the 3rd Respondent, at pages 276 – 342 of the Record, was filed on 30th November, 2012. The 2nd Respondent filed its Reply on 3rd December, 2012. It is found at pages 343 – 387 of the Record. The reply of the 1st Respondent is at pages 389 – 589 of the Record. It was filed on 10th December, 2012.
At the close of the pleadings the petition went into trial before the Tribunal. The Appellants called a total of 41 witnesses, including two expert witnesses. The 1st Respondent called 14 witnesses. The 2nd and 3rd Respondents called no witnesses. The counsel for the respective parties, at the close of the evidence, filed and exchanged their respective written Addresses, which they later adopted as their argument in the petition. In its considered judgment, delivered on 3rd May, 2013, the Tribunal dismissed the petition in its entirety; hence this appeal. The Appellants filed a total of 38 Grounds of Appeal in the Notice of Appeal copied at pages 1775 – 1796 of Vol. 3 of the Records.
Briefs were filed and exchanged by the parties through their counsel. The Appellants’ main brief was filed on 4th June, 2013. In addition the Appellants filed Reply Briefs in response to the briefs filed, each, by the 1st, 2nd and 3rd Respondents. The three Reply Briefs were filed on 12th June, 2013. These briefs and the main Appellants Brief were all adopted as the arguments/submissions of the Appellants in the appeal on 25th June, 2013 at the hearing of the appeal.
The 1st Respondent’s Brief, filed on 7th June, 2013, was adopted as the argument of the 1st Respondent in the appeal. Before then, the 1st Respondent had, on 7th June, 2013, filed Notice of Preliminary Objection wherein a number of the Appellants’ grounds of appeal were attacked. The Preliminary Objection was argued in the 1st Respondent’s Brief. Chief Wole Olanipekun, SAN moving the Preliminary Objection had urged us to strike out the defence grounds of appeal, the particulars in some of the grounds of appeal and the issue formulated for determination of the appeal wherein the defective grounds were included. Chief Akin Olujinmi, SAN of Counsel to the Appellants, relying on the S.P.D.C V. AMADI (2011) 6 SCM 183 at page 196, in response, submitted that preliminary objections are filed against the hearing of the appeal, with the view and aim of terminating same; and that there are other grounds which can sustain the appeal the proper procedure is to come by way of motion on notice praying for an order striking out the defective grounds of appeal. Notwithstanding the vehement opposition of Chief Olanipekun, SAN, on the ground that Order 10 Rule 1 of the Court of Appeal Rules, 2011 does only provide for the respondent to file preliminary objection, and not the other way round, I am in complete agreement with Chief Olujinmi, SAN on this. If the Notice of Preliminary Objection is a process in the appeal and it is for any reason, on points of law, not one that can be countenanced; then it could be objected to. I need not belabor the issue. The Supreme Court in S.P.D.C. V. AMADI (Supra) at page 196 has settled the issue when per Rhodes-Vivour, it states the law thus:
Preliminary objections are against the hearing of an appeal, and so, once it succeeds, the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of appeal should be filed.
This statement of law, in view of Section 287 (1) of the 1999 Constitution, as amended, binds this Court and the parties. The matter therefore, rests there. The Notice of Preliminary Objection filed by the 1st Respondent on 7th June, 2013 and argued in the 1st Respondent’s Brief of Argument filed also on 7th June, 2013 will not be countenanced since it purports not to terminate the entire appeal, but only some grounds of appeal in the Notice of Appeal.
The 2nd Respondent’s Brief, filed on 7th June, 2013 was adopted at the hearing of this appeal on 25th June, 2013 by Yusuf O. Ali, SAN as the argument of the 2nd Respondent. Dr. Onyechi Ikpeazu, SAN of Counsel to 3rd Respondent formally adopted the Brief of the 3rd Respondent, filed on June 7, 2013 and prayed, like the counsel respectively for the 1st and 2nd Respondents, that the appeal be dismissed.
The Appellants’ Brief, filed on 4th June, 2013 containing arguments on which Chief Olujinmi, SAN urged us to allow the appeal, has a total of 13 issues for determination as follows:-
Whether the Tribunal was right in rejecting the expert evidence of PWs 34 and 35 and failing to rely on the Exhibits tendered by them and admitted in evidence. (Grounds 21, 22, 23, 25, 35, 36).
Whether the Tribunal having held that there were injections into the 2012 Register of Voters used for the conduct of the October 20, 2012 Governorship Election was right in declining jurisdiction to consider the allegation on the use of the invalid Voters Register to conduct the 2012 Election on the pretext that they were pre-election matters. (Grounds 8, 9, 11, 18 and 19).
Whether the evidence of improper accreditation and non-accreditation of voters during the Election placed before the Tribunal vide EXHIBITS P52A & P52B and testimony of PWs 34, 40, 41 were not cogent enough to justify the nullification of the election conducted on 20th October, 2012. (Grounds 2, 12 and 17).
Whether the Tribunal properly evaluated the evidence before it and came to the right conclusion particularly when no rebuttal evidence was given and several facts were corroborated by documentary and oral evidence of the 1st Respondent witnesses. (Grounds 4, 5,6 and 38).
Whether failure of the Tribunal to properly review the evidence and evaluate it before making its findings has not engendered serious miscarriage of justice. (Grounds 20, 28 and 29).
Whether the evidence on record did not sufficiently establish allegations of irregularities and various acts of non- compliance with the Electoral Act and regulations made pursuant thereto to justify nullifying the election in dispute. (Grounds 3).
Whether the Tribunal was not wrong when it failed to hold that the petitioners through the evidence led have met the standard of proof required to establish the allegations contained in the petition. (Grounds 31 and 32).
Whether having regard to pleadings, the evidence and the law, the petitioners have not discharged the burden of proof placed on them. (Grounds 10 and 14).
Whether the Tribunal was right in its application of the decision of the Court of Appeal to discountenance and expunge evidence already properly admitted by it. (Grounds 7 and 16).
Whether the Tribunal was right to have
discounte-nanced evidence relating to
the paragraphs of the petition struck out having previously held that the petition would be heard on its merit and in any case having regard to the paragraphs of the respondents’ replies which accommodated the evidence. (Grounds 1 and 30).
Whether the Tribunal was right in dismissing the petition when the copious evidence led by the petitioners’ witnesses was neither rebutted nor challenged. (Grounds 13, 24, 26 and 33).
Whether in the light of its earlier holding that the petitioners did not dump documents on the tribunal, the materials on record and the law, the tribunal was right when it later held that some documents were dumped on the tribunal and that the petitioners did not demonstrate the electronic copies of 2011 and 2012 voters registers. (Grounds 15, 27 and 34).
Whether the in the light of the pleadings of the parties, the evidence led by the Petitioners and the failure of the 3rd Respondent to give any evidence, the Tribunal was not wrong in the way it considered the issue relating to the injected voters. (Ground 37).
On the other hand, the 1st Respondent at pages 6 & 7, particularly paragraph 3.1 of his brief formulated two issues for determination. They are:
“Whether the lower tribunal was not right when it relied on its own earlier decision of 4th February, 2013, which has been affirmed by the Court of Appeal in appeal number: CA/AK/EPT/GOV/04/13, in discountenancing paragraphs 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 45, 46, 48,49, 51, 55, 71, 80, 81, 85, 86, 87, 88, 91, 146, 149 and 181 of the Appellants’ petition, as well as the evidence led in support thereof (Grounds 1, 7, 16 and 30).
Considering the grounds of the Appellants’ petition, the extant state of the pleadings and the evidence in support thereof vis-à-vis the state of the law on the burden and standard of proof as well as the relief sought in the Appellants’ petition, whether the trial tribunal was not right in dismissing the Appellants’ petition and affirming the election and return of the 1st Respondent (Grounds 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 27, 29, 31, 32, 33, 34, 35, 36, 37 and 38).”
The 2nd Respondent has distilled three issues for determination. They are as follows in paragraph 3.00 at page 3 of the said brief:
Whether the trial Tribunal was not right in its conclusion that the Appellants did not proof improper or non-accreditation, improper voting, non-compliance with the provisions of the Electoral Act, and sundry other allegations made by them, and that the election was held in substantial compliance with the provisions of the Electoral Act, 2010 (as amended).
Whether the trial Tribunal was not right in its view that the testimonies of PWs 34 and 35, apart from being incredible or unbelievable, will not qualify as expert testimonies, having regard to the facts and circumstances of the case, moreover, when the testimonies did not prove the allegation of injection of fresh or illegal names into the voters’ registers, on which the Tribunal had no jurisdiction.
Whether the trial Tribunal was not right that the Appellants failed to prove the various allegations of electoral malpractices in the conduct of the Ondo State Governorship elections of 20th October, 2012.”
For the 3rd Respondent the three issues formulated for determination of the appeal are at page 7 thereof as follows: “Whether the Learned Tribunal rightly rejected the testimony of PW34 and PW35 and their respective reports in Exhibits P55….
Whether the learned judges of the Tribunal were right to have held that issues bothering on the state of the voters register of 2011 as compared to that of 2012 are pre-election matter covered by Section 31(5) of the Electoral Act 2010 and totally outside the jurisdiction of the Honourable Tribunal.
Whether in the light of the pleadings of the parties and the evidence on record, the learned Tribunal was not right to have dismissed the Appellants’ petition.
I have read all the briefs of argument and the proceedings of the Tribunal, including the pleadings and the judgment. In my humble view the issues for determination in this appeal are:-
Whether the Tribunal was right to have held that issues bordering on the contents of the Voters Register are pre-election issues and therefore not within its jurisdiction?
Whether the Tribunal was right to have held that the Appellants did not prove that the Ondo State Governorship Election of October 20, 2012 was not conducted in substantial compliance with the letters and spirit of the Electoral Act, 2010, as amended?
Whether on the pleadings and evidence of all the parties the Tribunal was right to have dismissed the petition?
• To be continued
