From the CourtPilot Law

LANDMARK JUDGEMENT

IZE-IYAMU v. ADP & ORS (2021)LCN/15130(CA)

In The Court Of Appeal (BENIN JUDICIAL DIVISION)

On Wednesday, May 26, 2021

CA/B/EPT/GOV/01B/2021

Before Our Lordships:

Mojeed Adekunle Owoade – Justice of the Court of Appeal

Ita George Mbaba  – Justice of the Court of Appeal

Uchechukwu Onyemenam – Justice of the Court of Appeal

Amina Audi Wambai  – Justice of the Court of Appeal

Abubakar Sadiq Umar  – Justice of the Court of Appeal

Between

ANDREW OSAGIE IZE-IYAMU  – Appelant(s)

And

  1. ACTION DEMOCRATIC PARTY 2. IBOI LUCKY EMMANUEL 3. INDEPENDENT NATIONAL

ELECTORAL COMMISSION (INEC) 4. PEOPLES’ DEMOCRATIC PARTY (PDP) 5. GODWIN N. OBASEKI

  1. ALL PROGRESSIVE CONGRESS (APC) – Respondent(s)

Appearances:

  1. Osarenkhoe, Esq. For Appellant(s)

Ikhide Ehighelua, Esq. – for 1st and 2nd Respondent.

Asiwaju Adegboyega Awomolo, SAN – for 3rd Respondent.

Adetunji Oyeyipo, SAN. with him, Rotimi Ogunneso, SAN – for 4th Respondent.

Ken E. Mozia, SAN, leading O. O. Jolaawo, SAN, Robert Emukpemo, SAN. – for 5th Respondent

  1. L Usoh, Esq. – for 6th Respondent. For Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):

On the 19th September, 2020, the Independent National Electoral Commission (INEC), the 3rd Respondent, conducted election into the office of the Governor of Edo State. Several contestants among whom were the Appellant, the 2nd and 5th Respondents. The Appellant was the candidate of the 6th Respondent. The 2nd Respondent contested the election on the platform of the 1st Respondent and the 5th Respondent on the platform of the 4th Respondent. In the result that was declared by the 3rd Respondent, the 5th Respondent of the 4th Respondent (PDP) was declared the winner and the duly elected Governor of Edo State having scored a total of 307,955 votes. The Appellant who was the candidate of the 6th Respondent, All Progressive Congress came second having scored 223,619 votes. The 2nd Respondent, the flag bearer of the 1st Respondent at the election who polled a votes of 2,374 came 3rd.

In addition to the Notice of Preliminary Objection filed on behalf of the 5th Respondent on 11/5/2021 challenging the competence of the appeal, the learned senior counsel Ken E. Mozia, SAN, leading O. O. JoIaawo, SAN, and other counsel who settled the 5th Respondent’s brief of argument filed on the same 11/5/2021 adopted the issues formulated by the Appellant’s learned senior counsel in the event that their preliminary objection argued in the brief of argument fails.

The 1st, 2nd, 4th and 6th Respondents did not file any brief of argument.

Meanwhile, the Appellant filed a Motion on Notice on the 14/5/2021 for leave to appeal as an interested party; leave to use the Records of Appeal Volumes 1, 2, 3, 4 and 5 and the Supplementary Record of Appeal compiled and transmitted by the secretary of the Tribunal in Appeal No. CA/B/EPT/GOV/01A/2C21 and CA/B/EPT/GOV/01B/2021 and a deeming order.

On 17/5/2021, the 5th Respondent filed a counter-affidavit in opposition to the motion.

At the hearing of the appeal on 19th May, 2021, the Appellant’s said motion and the 5th Respondent’s preliminary objection were taken. All parties adopted their processes and their addresses. Rulings in both were reserved. The said rulings will now be delivered before the judgment in the substantive suit; in this order, namely; (i) ruling on the Appellant’s motion and then (ii) ruling on the Preliminary Objection.

In the instant case, judgment in the Election Petition leading to this appeal was delivered on the 29th March, 2021. By a simple computation of time, the Appellant/Applicant had up to the 18th April, 2021 to file his Notice and Grounds of Appeal. A person seeking to appeal as an interested party must first seek leave of Court to become a party to the case, then file his notice of appeal within the prescribed time and if the time has elapsed before the application is made as in the case at hand, then to ask for enlargement of time to seek leave. Thus, for the Appellant/Applicant to be able to appeal the decision as an interested party, he requires not only the leave of Court but also an extension of time within which to appeal the stipulated time to appeal having elapsed. He requires the tripartite prayers often referred to as the trinity prayers since the statutory time to appeal has expired. The application must contain the following prayers:

(a) “An Order extending the time within which the applicant/a party interested can apply for leave to appeal against the judgment of the lower Court.

(b) An Order granting leave to the applicant/party interested to appeal against the judgment as a person having an interest in the matter.

(c) An Order extending the time within which to appeal against the said judgment of the Court.”

See CHUKWU & ANOR v I.N.E.C. (2014) LPELR-25015 (SC) Owena Bank (Nig.) Plc vs. NSE. Ltd, NAF vs. Shekete (2002) 12 SC (Pt. II) 52, 65.

Though the Appellant filed a notice of Appeal on the 18th April, 2021, that notice of appeal was filed before leave was sought and the notice is not in respect of a “party interested”. Having been filed before the leave was sought obtained, it cannot therefore be deemed as a proper notice of appeal. See SADAM & COMPANY LTD V NDIC (2018) LPELR-46569 at pages 20-23 of the report (CA), to appeal as an interested party.

Still on the propriety of relying on the said records in volumes 1, 2, 3, 4 and 5 as well as the supplementary record, learned counsel emphasized that all parties in this appeal were the petitioners and the Respondents in Petition No. EPT/ED/GOV/01/2020 and all the appeals and Cross-Appeal arose from the same judgment of the Tribunal; all relevant processes in petition including the pleadings, evidence, proceedings and judgment appealed against by the Appellant are all contained in the same Records of Appeal; the supplementary record is only a continuation of the records of appeal in volumes 1, 2, 3, 4 and 5, thus, the Appellant met all the conditions of appeal imposed by the Secretary of the Tribunal.

On grounds 2, 3 and 4 of the Preliminary Objection which complain of non-compilation and transmission of record by the Appellant and challenges the Appellant’s reliance on the Record of Appeal in appeals No. CA/B/EPT/01/2021 and CA/B/EPT/01A/2021, the Law is that the duty of compilation, transmission and service of record of proceedings in an election petition is that of the Secretary, the Tribunal who shall do so within 10 days of the receipt of the Notice Appeal. See Paragraph 9 of the Election Tribunal and Court Practice Directions, 2011. Once the Appellant has fulfilled his part of the obligation by paying the necessary prescribed fees, he cannot be held responsible for any omission in the Record or the manner of compilation of the record. See BUHARI V. YABO (2005) 29 WRN 75 @ 83. The Appellant deposed and submitted that the conditions of the Appeal were met. The Secretary’s statement was also exhibited. By the combined effect of Paragraphs 7, 8 and 9 of the Practice Directions 2011, the compilation and service of the records of appeal in Cross-Appeal CIA volumes 1-5 and more importantly the supplementary record containing the Secretary’s statement and the Appellant’s Notice of Appeal on all parties is an indication that the Appellant complied with the requirement in paragraph 7 as regards the payment of the prescribed fees.

The Appellant having prayed the trial Tribunal to disqualify the 5th Respondent who won the election and was the candidate duly returned by the 3rd Respondent and who further prayed that he be declared the duly elected candidate at the election, it was very much the business, and I must add, the duty of the 5th Respondent to apply that the Appellant’s name and his reply to the Petition be struck out. It was also the business of the 4th Respondent, the political party of the 5th respondent, to apply that the Appellant be struck out of the Petition. Unquestionably, the decision in BUHARI V. YUSUF (Supra) wherein the Supreme Court was quoted to have held that it is not the business of a Co-Respondent to apply that the name of another Respondent be struck out does not apply to the peculiar facts and circumstances of this case.

The only option for the Appellant to pursue his reliefs was to file his own election petition. That is the only medium and the vehicle through which a party aggrieved with the conduct of an election or the return of a candidate at an election can challenge same and seek redress from the Election Tribunal or Court. He cannot through another person’s petition seek to be declared the winner of the election. The other option for the Appellant wrongly as a respondent if he was not interested in challenging the election or the return of the 5th Respondent was to apply to be disjoined from the Petition or in the least remain aloof as an unnecessary and undesirable Respondent to the Petition.

The position of the Appellant can be likened to that of a snake that never digs a hole but assumes the right of ownership and occupation of a one dug by others. The Appellant cannot do that. He cannot come through the back door to get what he would not get from the proper door. Again, let me for the umpteenth time make it clear that for the Appellant to seek the reliefs he prayed for at paragraph 26 of his reply, he has to file an Election Petition in compliance with CFRN, Electoral Act and in accordance with the procedure set out in the 1st Schedule to the Electoral Act. Any other method or procedure other than this is unknown to and unacceptable by Law.

In summation, the Lower Court was right in striking out the names of the Appellant and his party, the 6th Respondent, from the Election Petition No. EPT/ED/GOV./01/200 filed by the 1st and 2nd Respondents for being unnecessary Respondents wrongly joined in the Petition which the Tribunal could have done even suo motu.

The issue is resolved against the Appellant. Having so resolved this issue against the Appellant, the consideration of the 2nd issue does not arise. The effect is that there is no merit in this appeal. It is accordingly dismissed. The judgment of the lower Court delivered on 29th March, 2021 is hereby affirmed. Parties shall bear their cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

 

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