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Fresh election is in order where no clear winner emerged (2)

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COURT-LOGOcourt of appeal
in the owerri judicial division
holden at owerri
on thursday the 31st day of december 2015
before their lordships:
hon. justice oyebisi folayemi omoleye presiding justice court of appeal
hon. justice chinwe eugenia iyizoba justice, court of appeal
hon. justice samuel chukwudumebi oseji justice, court of appeal
hon. justice tijsni abubakar justice, court of appeal
hon. justice jamilu yammama tukur justice, court of appeal
ca/ow/ept/gov./6/2015
between
1.alex otti
2.all progressive grand alliance (apga) ………………………..…………
appellants and
1. okezie ikpeazu
2. peoples democratic party (pdp)
3. independent national
electoral commision (inec)……………. respondents

IN line with the rules governing the adjudication of this court upon election appeals, the learned senior counsel for the respective parties settled, filed and exchanged briefs of argument in support of the varied stances in the appeal.
upon service of the appellants’ brief of argument on the parties, the 1st respondent raised a notice of preliminary objection to the competence of grounds 2,5, particulars (a), (b), (c) and (d) of 15, particulars (a) and (b) of 19, 23 and 28 of the grounds of appeal. the objection was predicted upon the following five grounds to wit:

(i) ground two of the ground of appeal does not arise from the reliefs claimed in the petition; a fortiori, it doesn’t arise from the judgment. the petition itself prayed the tribunal to nullify the election of 11th april 2015, whereas the return of the 1st respondent was based on the election of 11th and 25th april, 2015.

(ii) strike out particulars (a), (b), (c) and (d) of the ground fifteen (15) as the said particulars are substantially argumentative, prolix, verbose, while in some parts consists of submissions and conclusions. in effect, to strike out the entire ground fifteen (15).

(iii) strike out particulars (a) and (b) of ground nineteen (19), as the said particulars are also argumentative, raising conclusions, and making submissions.

(iv) strike out either or both of ground 5 and 23, as both grounds are repetitive of the other.

(v) strike out either or both of grounds 2 and 28, as both grounds are also repetitive of the other.
it is apposite to state at this juncture that, in the appellants’ brief of argument dated/filed on 4th december 2015; seventeen issues were donated for the determination of the appeal.

that 2nd respondent filed a motion dated/filed on 11th december 2015 which prayed this court for an order striking out ground 27 of the grounds of appeal as well as issue 16 contained in the appellants’ brief of argument.

the 3rd respondent equally raised a notice of preliminary objection to the competence of the appeal.
the notice of preliminary objection and the submission to buttress same are contained in paragraph 3.0 at page 3 through to paragraph 4.4 at page 5 of the 1st respondent’s brief of argument dated/filed on 11th december 2015. the learned senior counsel adopted the said submissions in urging upon this court to uphold the preliminary objection and strike out the entire appeal for being incompetent.

in opposing the preliminary objection of the 1st respondent, the learned senior counsel for the appellants, chief akin olujinmi, san, referred to the submissions in paragraphs 2 at page 2 to paragraph 4 at page 5 of the appellants’ reply to the 1st respondent’s brief of argument dated/filed on 16th december, 2015, in urging this court to dismiss the preliminary objection of the 1st respondent.

similarly, the learned senior counsel for the 2ne respondent, dr. onyechi ikpeazu, san, referred to the application of the 2nd respondent’s replicated in the preliminary objection of the 2nd respondent and the submissions in respect thereof embedded in paragraph 4.00 at page 2 to paragraph 4.04 at page 3 of the 2nd respondent’s brief of argument dated/filed on 11th december 2015. the learned senior counsel adopted the said submissions and urged upon this court to uphold the objection and strike out both the ground 27 of the grounds of appeal and the issue 16 distilled therefrom for their incompetence.

chief akin olujinmi, san, opposed the 2nd respondent’s preliminary objection. his submissions in support of the opposition are embedded in paragraph 2.00 at page 1 to paragraph 2.30 at page 3 of the appellant’s reply brief to the 2nd respondent’s brief of argument dated/filed on 16th december 2015. he adopted the said submissions in urging upon this court to dismiss the objection for being ineffectual.

the learned senior counsel for the 3rd respondent, asiwaju adegboyega awomolo, san, equally referred to the notice of the 3rd respondent’s preliminary objection raised to the competence of the appeal. the submissions in respect thereof are contained in paragraph 3.0 at page 2 through to paragraph 3.24 at page 9 of the 3rd respondent’s notice of preliminary objection and brief of argument dated/filed on 11th december 2015.

the law is well established that whenever a preliminary objection is raised to an appeal, an appellate court has the bounden of legal duty to resolve it first, before determining the appeal on its merits. see for this legal position the cases of: begbe vs. tiza (2000) 4 nwlr (pt. 652) p.193.

the 1st respondent’s preliminary objection
the 1st respondent by way of preliminary objection urged this court to strike out the following grounds of appeal as well as the issues raised therefrom, that is:

i. ground two (2) of the ground of appeal does not arise from the reliefs claimed in the petition: a fortiori, it does not arise from the judgment. the petition itself prayed the tribunal to nullify the election of 11th april 2015 whereas the return of the respondent was based on the election of 11th and 25th april, 2015.

ii. strike out particulars (a), (b), (c) & (d) of the ground fifteen (15) as the said particulars are substantially argumentative, prolix, verbose, while in some parts consists of submissions and conclusions. in effect, to strike out the entire ground fifteen (15).

iii. strike out particulars (a) and (b) of ground nineteen (19), as the said particulars are also argumentative, raising conclusions, and making submissions.

iv. strike out either or both of ground 5 and 23, as both grounds are repetitive of the other.

v. strike out either or both of grounds 2 and 28, as both grounds are also repetitive of the other.
in his submissions in respect of the preliminary objection, learned senior counsel for the 1st respondent, chief wole olanipekun san contended that the ground two (2) does not arise from the reliefs contained in the petition and consequently not linked or connected to the judgment of the tribunal.

in response to the 1st respondent’s preliminary objection, learned senior counsel for the appellants, chief akin olujinmi san, argued with regard to the complaint about ground two that, a ground of appeal does not need to arise from the reliefs claimed in a petition but from the judgment of the tribunal. with regard to the objection to the particulars of grounds 15 and 19, learned silk for the appellants submitted that an objective reading of the particulars of both grounds will show that they are not argumentative, prolix, verbose or raise conclusions. it was further submitted by the learned senior counsel for the appellants that once the complaint in the ground is clear, the merits of a ground of appeal should be considered. see dakolo vs. dakolo (2011) 16 nwlr (pt. 1272) 22 at 58, para. g; and (2) military administrator, benue state vs. ulegede (2001) 17 nwlr (pt. 741) 194 at 213.

with respect to the complaints on ground 5 and 23 and grounds 2 and 28 being repetitive it was argued by the learned silk for the appellants that the objection has no support from the rules of court.

we have examined the said grounds and we agree with the learned senior counsel for the 1st respondent that they are indeed repetitive of the other. ground 28 can be conveniently accommodated under ground 2 which we are of the view is competent. therefore, ground 28 and issue 14 derived from same are struck out.

with regard to grounds 5 and 23 the objection is also premised on the pedestal that they are repetitive of the other and that both or one be struck out. the objection to the grounds 15 and 19 is that, particulars (a), (b), (c) and (d) of the ground 15 and particulars (a) and (b) of ground 19 are argumentative, prolix, verbose and conclusions. we examined the affected particulars 15 and 19 and we agree with the learned senior counsel for the appellants that the particulars therein are not in the mode ascribed to them by the 1st respondent. grounds 5 and 23 are also not repetitive of the other as they attack different holdings of the tribunal. in any event the law is settled, on a long line of authorities, that the fact that the particulars in the grounds of appeal are argumentative should not by itself deny an appellant his inalienable right of appeal, where issues arise on the face of the grounds for the court’s consideration.

we are satisfied upon perusal of the grounds of appeal that they indeed represent the aggregate of the complaint of the appellants against the decision of the tribunal. the alleged defects in the particulars do not and should not be a bar to the appellants in exercising their constitutional right against the judgment of the tribunal. in any event, the 1st respondent has not placed before this court any material to show in what way the particulars of the grounds of appeal have misled him. abba aji, jca, in the case of uwazuruike vs. nwachukwu & ors. (2012) lpelr (ca/ow/164/2011) elucidated on the point thus:

a ground of appeal which particulars of error are argumentative or conclusions is not ipso facto incompetent so long as it is not capable of misleading the other party and the court is satisfied that its meaning can be reasonably elicited. it cannot be considered objectionable. the 1st respondent has not stated or shown in what way were the particulars of the grounds capable of misleading or has (sic) misled him.

the authorities were therefore clear that, it is not every infraction that will lead to the striking out of a ground of appeal. once the grounds of the appeal disclose the complaints of the appellant against the decision of the tribunal/court and the respondent is not shown to have been misled, then the appellant’s right of appeal should be upheld. in the circumstances of the case, the preliminary objection of that 1st respondent succeeds in part.

the 2nd respondent’s preliminary objection

the preliminary objection raised by the 2nd respondent on ground 27 of the appellants’ notice of appeal and issue 16 distilled from the same is predicated on the ground that both do not arise from the decision of the tribunal appealed against.


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