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| Court of Appeal Jos Division venue of the Appeal Tribunal |
By Joseph A. Adudu
November 22, 2019
The Appeal
Tribunal sitting in Jos, the Plateau state capital has reserved date for
judgment in the governorship Appeal filed by Gen. Jeremiah TimbutU seni of the
Peoples Democratic Party ( PDP) against Rt. Hon. Simon BakoLalong of the All
Progress Congress ( APC). Useni challenged at the lower tribunal, the
Independent National Electoral Commission (INEC)'s declaration of Lalong as the
winner of the February 24 and March 9 governorship election in the state. The
lower tribunal in its judgment on 2 October, 2019, dismissed the petition. Disatisfied
with the judgment, Useni filed an Appeal which was heard on Friday.
When the case
file was called, counsel for the Appellant, Mike Ozhekome (SAN) told the court
that the Appeal was against the judgment of the lower tribunal. " My
Lords, this is an Appeal against the judgment of the lower tribunal delivered
on 2nd October, 2019 contained at pages 2689 - 2875 of the Court records",
said Ozhekome. He said the notice of Appeal dated 17 October, 2019 but filed 18
October, 2019 was contained at pages 2876 - 2900 vol. 3 of the records.
"The Appellant brief of argument is dated 28 October, 2019 but filed 1
November, 2019. We must respectfully adopt our argument for its true
import and purpose as it is to the Appellant". He said. The Appellant
further filed replies to 1st, 2nd and 3rd respondents brief on 13, 11 and
13 November, 2019. Ozhekome said “we must respectfully adopt these processes as
the case of the Appellant also ".
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| Gen T Useni, Appellant |
By way of
adumbration, counsel said that one point that was of significance was the
evidence of PW 12 called AAQ who was allowed by the lower tribunal to adopt his
evidence after dismissing an application by the respondents to stop the witness
from testifying. Counsel said that the respondents filed an Appeal which
upturned the decision of the lower tribunal. However, the Supreme Court
according to counsel, unanimously set aside the decision of the Appeal on 26
September, 2019 in case number SC/10/85/219.
Counsel said that
instead of the lower tribunal to rely on the decision of Supreme Court in
delivering its judgment on 2 October, relied on the decision of the Appeal and
expunged the evidences of PW 12 and of 19 others. " Our position is
that by the provision of section 122 of the Evidence Act, the Appeal Court
ought to have been guided by the decision of the Supreme Court", said
counsel. On the Supreme Court decision on AbubakarAtiku& other against INEC
& others, in case number SC/1211/2019 delivered on 15 November, 2019,
counsel said that the fact of that case was not in sync with the instant case
as the 2nd respondent ( Lalong) did not testify or called any witness to proved
that all the different names are tied to him. Consequently, he urged the
court to allow the Appeal and set aside the judgment of the lower tribunal.
In his
submission, Ibrahim K Bawa ( SAN) counsel to 1st respondent ( INEC), said
the 1st respondent brief of argument was filed on 7 November, 2019 and adopted
same. Counsel said by way of adumbration that the Appellant made allegations in
about 860 Polling Units. “Our position is that the Supreme Court has set the
pace in its decision and going by it, the Appellant ought to have called at
least a witness from each of the Polling Units. So, the Appellant has not
discharged the burden of prove place on it by the law", said counsel. He
further cited the case of OnimisiItopa & other vs Bello Joseph Asuku, Court
of Appeal unreported decision in case number CA/A/EPT/799/2019 delivered on 18
October, 2019. “I refer my Lords to particularly pages 47-50 of the unreported
decision and urge my Lords to dismiss the Appeal and affirmed the decision of
the lower tribunal", he said.
Lateef Fagbemi (
SAN ), counsel for 2nd respondent ( Lalong ) also adopted the 2nd
respondent brief dated and filed 7 November, 2019 and relied on the process.
Counsel added that as far as the issue of qualification was concerned, the
Appellant had no business coming to Appeal tribunal because according to
counsel it was a pre-election matter which ought to have been brought 14 days
after the cause of action. He cited the case of Akinlade Abdulkarim & other
vs INEC & 2 others in Appeal number CA: in/EPT/OG/GOV/2019, delivered on 19
November, 2019, in which the Appeal held that section 138 ( e ) of the
Electoral Act that deals with supply of false information was unconstitutional
and urged the court to dismiss the Appeal.
GarbaPwul ( SAN
)on behalf of the 3rd respondent ( APC ), filed 3 processes as follows;
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| Useni and Lalong during one of the session at the lower tribunal |
Motion on notice
filed 8 November, 2019, challenging certain grounds of the Appeal and issues
formulated accompanied by a Written Address.
A reply on point
of law in respect to the motion when the 3rd respondent was issued with
response of the Appellant on 16 November, 2019. Counsel adopted and relied on
the processes and urged the court to grant the prayers stated on the motion.
The third process
was brief of argument of the 3rd respondent which counsel said was filed out of
abundant caution on 8 November, 2019. He adopted and relied on the process.
Counsel by way of
adumbration associated with the submissions by counsels for 1st and 2nd
respondents adding that on the issue of qualification, that has already be
overtaken by events adding that besides, it was a pre- election matter. On the
complaint of Appellant regarding the expunged of evidences of 20 witnesses by
lower tribunal in its judgment, 3rd respondent counsel submitted that the lower
tribunal cannot be blamed as counsels for the Appellant failed to furnished it with
the decision Supreme Court. “In any case, even if the votes of the disputed
areas are taken away, it would not change the situation. There is no merit
whatsoever in this Appeal and the Appeal should be dismissed", counsel
said.
Ozhekome in his
response to the motion of the 3rd respondent said the Appellant filed counter
Affidavit and a written Address dated 11 November, 2019 but filed 13 November,
2019 and said, “Our submission is that grounds 1-14 which they are objecting to
are cognizable and valid by rule 404 of the court rule. This is not pre-
election matter challenging qualification but post-election matter. The
contributory judgment of justice Ejembe Ekpo is in a form dissenting judgment
and not concurrent with the main judgment of Justice Tanko Mohammed", said
counsel. Appellant counsel further cited the following authorities; Umana vs
Attach, reported in 2016 LPLER 3356 SC, Nwana vs FCDA & others
reported in 2004 LPLER SC, OlatunbaOju, 2019, LPLER, 2059 and urged the court
to dismiss the Preliminary Objection of the 3rd respondent.
There were two
Cross-Appeals by Simon Bako Lalong and the All Progressive Congress
respectively. Justice J O Bada reserved date for judgment.
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