The Court of Appeal sitting in Akure, the Ondo State capital, has set aside the ruling of National and State Houses of Tribunal dismissing the two petitions of All Progressives Congress (APC) candidates for Akure South Constituency I, Festus Aregbesola and Ilaje Constituency II, Gbenga Edema.
In a unanimous lead judgments read by the presiding judge, Justice Mojeed Owoade, Justice Danjuma and Justice Abiriyi, the court found merit in the two appeals filed by counsel to the APC, Charles Titiloye.
It, therefore, set aside the order of the tribunal dismissing the two petitions.
The Appeal Court mandated the constitution of a new panel of judges of the election tribunal to retry the election petitions on its merit.
It held that the application made for pre-hearing session by Titiloye was properly made within the contemplation of paragraph 18(1) of the First Schedule to the Electoral Act.
The court contended that the tribunal erred in law to have dismissed the petitions as abandoned.
It reasoned that the tribunal was in the third day of pre-hearing session and hence the petition cannot be said to be an abandoned petition.
The court further held that even if the application for pre-hearing session was made pre-maturely, all the respondents were deemed to have waived such non-compliance under paragraph 53(2) by participating in the pre-hearing session, filing applications and arguing same without objecting to the pre-hearing session for three days.
It noted that paragraph 18(1) of the First Schedule to the Electoral Act did not use the word close of pleadings as the basis for application for pre-hearing.
The court said it was wrong, therefore, for the tribunal to have imported the provision from the Federal High Court Rules on close of pleadings, which was not expressly contained in the Electoral Act to dismiss the petition.
It agreed that the tribunal lacked jurisdiction to have raised an objection to the petition and dismiss the petition based on the said objection when the tribunal had earlier ruled that all objections would be heard along with the substantive petition.
The judges held that the tribunal was functus officio after making the said ruling and cannot thereafter raise the objection suo motu and rule on it without hearing the petition on its merit based on its earlier ruling.
The court held that the view of the trial court in its ruling that application for pre-hearing ought to be made for each and every respondent is an obiter dictum, which is not the reason of the judgment of the said tribunal.
It noted that tribunal now administers substantial justice in election petition cases and all provisions of the Electoral Act must be read together to do substantial justice.
The judges awarded N100,000 each against the first and second respondents in the appeal of Aregbesola and Edema.
Titiloye hailed the court for standing for justice and fairness in its “judgments in the appeals, which have opened up the electoral legal jurisprudence in Nigeria”.
Also, the Appeal Court restored three other petitions for APC in Idanre, Ilaje Constituency I and Akoko North East earlier struck out by Justice Anthony Ogar-led Election Tribunal and directed the tribunal to hear the petitions on their merit.
The Acting Chairman, Independent National Electoral Commission (INEC, Mrs. Amina Zakari, had earlier faulted the conduct of Ilaje 1 and 11 State Assembly election because of alleged irregularities.