Jos poll: Why Appeal Court overuled tribunal

For failing to take into cognisance the suigeneris nature of election petitions, which require strict compliance with the timings contained in the laws guiding election petition proceedings, the Court of Appeal sitting in Jos, Plateau State has set aside a ruling of the Plateau State Governorship Election Petition Tribunal.

The appellate court granted an interlocutory application by the All Progressives Congress (APC) governorship candidate in the April 11 election, Simon Lalong.

Governor Lalong and his Deputy Prof Sonni Gwanle Tyoden defeated Gyang Nyam Shom Pwajok (GNS) and his running mate, Yilji Gomwalk, who contested on the platform of the Peoples Democratic Party (PDP).

Aggrieved by the declaration, Pwajok, Gomwalk and the PDP filed a petition before the Governorship Election Petition Tribunal of Plateau vide PETITION NO. EPT/PL/GOV/2/2015 on May 2. Governor Lalong, the APC and INEC are first, second and third respondents.

The respondents filed their respective replies to the petition, each raising a preliminary objection on the grounds that the petitioners’ pleadings challenging, inter alia, the “generic, vague, nebulous and general” paragraphs of the Petition in breach of paragraph 4(1)(d) of the First Schedule to the Electoral Act 2010 (as amended) and Order 13 Rules 4(1), 5 and 6(1) of the Federal High Court (Civil Procedure) Rules 2009 .

The provisions require parties to furnish sufficient particulars in their pleadings to avoid taking the other party by surprise.

The appellant also filed a substantive application on June 12, praying the tribunal to strike out the petition and/or the offending paragraphs.

However, at the pre-hearing session, by agreement of parties and in the light of the provisions of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) and the implication of the provision of Section 285(6) of the Constitution (as amended), the ribunal in its pre-hearing session report directed that all preliminary objections be argued and/or adopted with the final written addresses of parties in the petition and one composite judgment delivered by the tribunal.

After the close of pre-hearing session, the petitioners on July 23 sought the tribunal’s leave to call an additional witness and to file the witness’ statement on oath. Among their prayers was an order granting leave for the hearing of the application outside the pre-hearing session.

The pre-hearing session ended on June 29, while the application was filed on July 23.

Earlier in the course of proceedings, and while seeking for more time to obtain documents from the INEC at the lower tribunal, the petitioners, through their lead counsel, Robert Clarke (SAN), told the tribunal that the documents earlier given to them were fake.

After being granted leave to obtain fresh documents from INEC, the petitioners alleged that INEC refused to give them the documents they needed.

The first and second respondents opposed the motion and filed counter-affidavits. They contended that no authentic report or document could emanate from the fake documents used by the petitioners.

On August 1, the tribunal heard the application and delivered its ruling on August 5. Dissatisfied, the first respondent filed a Notice of Appeal on August 22.

In the interlocutory appeal, Pwajok, Yilji Gomwalk, PDP, APC and INEC became the first, second, third, fourth and fifth respondents. Governor Lalong filed his brief of argument. The fourth and fifth respondents did not file any respondent’s brief at the Court of Appeal. However, the first to third respondents filed their brief of argument. They also filed a preliminary objection contending that the appellant cannot appeal against an interlocutory ruling or decision delivered or made by the trial tribunal.

The appellant, through his lead counsel, Prince Lateef Fagbemi (SAN), formulated these issues: “Whether the lower tribunal was not in error when it failed to appreciate the essence of the provision of paragraph 47(1) of the First Schedule to Electoral Act, 2010 (as amended) by holding that the first to third petitioners /respondents did not need to seek and obtain the tribunal’s leave to get their July 23 application heard and determined outside pre-trial session; whether having regard to the sui generis nature of election petition, the provisions of section 285(5) of the 1999 Constitution (as amended) and paragraphs 4(1 )(d); 4(5)(a), (b) and (c); 4(6) and 14(2) of the First Schedule to the Electoral Act, 2010 (as amended), the tribunal was not wrong to have granted the first to third petitioners/respondents’ application filed on July 23, which thereby occasioned a miscarriage of justice to the appellants”.

In its judgment delivered on September 22, the Court of Appeal Jos dismissed the objection of the first to third respondents. It allowed the appellant’s appeal and dismissed the application filed by the first to third respondents/petitioners.

The Appellate Court further held that the tribunal was wrong when it failed to take into cognizance the sui generis (specially classified time bound proceedings) nature of election petitions which require strict compliance with the time-lines, which it held, must be adhered to.

Counsel for Lalong, Mr. Jonathan Mawiyau, said: “I feel fulfilled because justice has been done according to law. We had vehemently opposed the application because we believed that the grant of the prayers will automatically alter the content, structure and spirit of the petitioners’ complaints against the result and declaration of INEC respecting the April 11 2015 Governorship Election in Plateau State. It would certainly give a weak petition undeserved strength. We also believed that granting the prayers in the July 23 application will significantly amend the petition itself, albeit, outside the time-frame allowed by law for any amendments to be made.

“There was ‘ingenuity’ in the tribunal’s decision that even before the application was filed, it had already, by virtue of its pre-hearing session report, granted leave to the petitioners to bring an application, making the application itself superfluous. That was a trap, which we had to escape, and to escape we had to appeal. Now that the Court of Appeal has fully agreed with our position and reasoning, we feel fulfilled.”

On the effect of the judgment on the substantive matter before the Tribunal, Mawiyau said: “My take is that we are now better positioned in our defence of the petition. Firstly, we have a Preliminary Objection before the lower Tribunal. Its ruling had in effect determined it even before it was argued. That was in spite of the fact that the same tribunal had, during the pre-hearing session, ruled that it would write a composite judgment touching the objection and the main petition. Now, there is an opportunity for the objection to be considered in the light of the judgment of the Court of Appeal.

“Secondly, the tribunal can only refer to the so called expert’s evidence or the ‘forensic report’ and all those fake documents in the light of the judgment of the Court of Appeal, and strictly thereto.

“If it is to be looked into at all, I am of the view that only the Supreme Court can do that since not even the Court of Appeal can look into it again, particularly having regard to the sui generis nature of election petitions, which makes it most unlikely to have the time to refer the matter to any of the lower Courts.

“I am more comfortable with that position since there, at the Supreme Court, the issues will be dealt with dispassionately.”