REV. BUNMI OLUSONA V. MR. AKEEM AYEDUN & ANOR. (2011)

Background

Rev. Bunmi Olusona contested the 26 April 2011 election for the Ekiti/Irepodun/Isin/Oke-Ero Federal Constituency of Kwara State, conducted by the Independent National Electoral Commission. Mr. Akeem Ayedun was declared and returned as the winner. Dissatisfied with that result, Olusona filed a petition before the National Assembly Election Tribunal sitting in Ilorin. He sought declarations that Ayedun had not been validly elected, that the election was affected by substantial electoral malpractice—including alleged thumb-printing, manipulation of results and thuggery—and that, after the subtraction of unlawful votes, he should be declared the winner.

The respondents raised objections to the competence of the petition and to several procedural steps taken by the petitioner. After trial and preliminary proceedings, the tribunal dismissed the petition, holding both that the preliminary objection succeeded and that the petition also failed on its merits. The tribunal found that the election had been conducted in substantial compliance with the Electoral Act and that the petitioner had not produced credible and compelling evidence sufficient to displace the presumption of regularity attaching to the election.

Olusona appealed to the Court of Appeal. His grounds complained principally about the rejection of documents tendered from the Bar, the treatment of certified public documents, the standard of proof for allegations of electoral offences, the competence of a petition signed in the name of a law firm, and the rejection of evidence attached to an affidavit. The respondents filed preliminary objections challenging the notices and grounds of appeal.

Issues

1. Whether the appellant’s notices of appeal against interlocutory rulings of the election tribunal were competent without leave.
2. Whether the first respondent’s preliminary objection, raised only in the respondent’s brief and without a separate notice, could be entertained.
3. Whether the grounds of appeal were validly founded on the actual findings and ratio decidendi of the tribunal.
4. Whether a petition signed in the name of “Iyiola Oyedepo and Associates” complied with paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010 and sections 2 and 24 of the Legal Practitioners Act.
5. Whether the tribunal’s treatment of the documentary and affidavit evidence disclosed an appealable error.

Ratio Decidendi

The Court of Appeal held that a respondent intending to rely on a preliminary objection must comply strictly with Order 10 rules 1–3 of the Court of Appeal Rules. The respondent must give the appellant three clear days’ notice, set out the grounds of objection, file a separate notice at the registry, and provide the required copies. A preliminary objection merely incorporated into a brief, without proof of the required filing, is incompetent. Filing fees are what give a court process procedural validity, except where the law waives those fees. Accordingly, the first respondent’s objection was discountenanced.

The court further held that section 246(1)(b)(i) of the 1999 Constitution confers an appeal as of right only in relation to final decisions of National Assembly, Governorship and Legislative Election Tribunals concerning whether a person was validly elected. An appeal against an interlocutory ruling requires leave. Since the appellant filed notices against interlocutory rulings without first obtaining leave, the relevant notices and grounds were incompetent and were struck out.

A valid ground of appeal must arise from the ratio decidendi or an actual pronouncement of the lower court or tribunal. It cannot be based on an argument, inference or obiter dictum that the tribunal did not make. Grounds alleging that the tribunal had made sweeping findings about pleaded documents, proof beyond reasonable doubt, or exhibits attached to affidavits were struck out because the record did not support those complaints.

Finally, the court affirmed that a law firm, as a name or association, cannot sign a court process as the solicitor of a party where the applicable law requires signature by a legally qualified practitioner. The petition, signed in the name of “Iyiola Oyedepo and Associates,” did not satisfy paragraph 4(3)(b) of the First Schedule to the Electoral Act when read with sections 2 and 24 of the Legal Practitioners Act.

Court Findings

The preliminary objection of the first respondent was dismissed for non-compliance with the procedural requirements governing objections. The second respondent’s objection, however, was properly filed and served and was upheld. The three grounds arising from the interlocutory decisions were struck out because no leave had been obtained. The court also found that grounds 1, 3 and 6 of the later notice of appeal were not anchored on the tribunal’s actual findings and therefore could not sustain appellate review.

After the incompetent grounds were removed, only the complaint concerning the signature of the petition remained. On that issue, the Court of Appeal agreed with the tribunal that the petition was not properly signed by the petitioner or by an identifiable legal practitioner acting as solicitor. The court therefore found no basis for disturbing the tribunal’s dismissal of the petition.

Conclusion

The appeal was dismissed. The preliminary objection of the first respondent was dismissed as procedurally incompetent, while the preliminary objections of INEC were upheld. Costs of N30,000 were awarded in favour of the first respondent, and the second respondent was ordered to bear its own costs.

Significance

The decision underscores the strict procedural character of Nigerian election appeals. It confirms that parties must comply precisely with rules governing preliminary objections, notices of appeal, filing periods and leave. It also reinforces the principle that appellate grounds must attack the actual reasoning of the lower tribunal rather than statements that were never made. In addition, the case illustrates the importance of proper legal representation and authentication of election petitions: a process signed merely in the name of a law firm may be incompetent where the statute requires the signature of the petitioner or a qualified legal practitioner. The ruling therefore serves as a significant authority on appellate jurisdiction, election-petition procedure, competent grounds of appeal and the procedural consequences of defective filing.