The Allied Peoples’ Movement (APM) has asked the Supreme Court to dismiss President Bola Ahmed Tinubu and Vice President Kashim Shettima preliminary objection to its appeal for being incompetent, frivolous, vexatious, baseless and lacking in merit.
APM is challenging the decision of Presidential Election Petitions Court (PEPC) that peremptorily rejected it’s petition on September 6, 2023 based on motion filed by Tinubu whose election victory was the object of its petition.
It had filed an appeal at the apex court seeking to set aside the misconceived decision of the lower court and is being confronted with similar preliminary objections by the respondents counsel.
The party said in its response to Tinubu and Shettima’s Notice of preliminary objections that seek to dismiss it’s appeal, that the Notice of preliminary objections was incompetent and liable to be dismissed.
Appellant lead counsel, Chukwuma-Machukwu Ume (SAN) argued that “the law is trite that where a Respondent to an appeal intend to challenge the competence of certain grounds of appeal as contained in the Notice of Appeal, he shall file a Motion on Notice and not a Notice of Preliminary Objection as the 3rd and 4th Respondents have erroneously done herein,”
Besides, Ume said Tinubu and Shettima have accepted that AMP grounds 4, 8,9 and 10 of Appeal are competent and valid grounds of Appeal but are against Grounds 1,2,3,5,6, and 7 of the Appellant’s Notice of Appeal.
He said that another virus that made 3rd and Respondents’ Notice of Preliminary ‘Objection incompetent is that all the legal submissions made in support of the Notice of Preliminary Objection were exclusively in a “Written Address” attached to the Notice and not a word, phrase or sentence was made in the Brief of Argument in support of the Notice.
The above submissions notwithstanding, the appellant specifically responded to the grounds of the 3rd and 4th Respondents’ Notice of the Preliminary Objection thus:
“The 3rd and 4th Respondents’ contention in grounds (i) and (ii), (Issue
l) of their objection to the effect that Appellant abandoned Grounds l, 2 and 3 of its Notice of Appeal is utterly misconceived, false and without substance as Appellant’s Grounds l, 2 and 3 are copiously argued under Issue I of the Appellant’s Brief of Argument filed on 02/10/23.
“The Grounds l, 2 and 3 of the Appellant’s Notice of Appeal attacked the wrongful dismissal of the Appellant’s Petition by the lower court based on the Motions filed by the Respondents contending that the lower court lacked the jurisdiction to entertain it, same being purportedly a pre-election matter for which Appellant lacked the locus standi to institute.
“Appellant’s arguments canvassed in support of its Issue 1 in the Appellant’s Brief of Argument before the Hon. Court sufficiently covers grounds 1, 2 and 3 of the Notice of Appeal in that same are challenging the perverse findings/ holding of the lower court to the effect that it lacked the jurisdiction to entertain Appellant’s Petition on the alleged ground that Appellant lacked the locus standi to ventilate its complaint before it (having with respect, wrongly) found that same is a pre-election complaint
While Grounds I and 2 of the Notice of Appeal attacks the findings of the lower court that it lacks jurisdiction for Appellant’s Petition being allegedly a pre-election, Grounds 3 of same Notice of Appeal probes the holding that that Appellant lacked the locus standi to question the nomination/sponsorship of 4th Respondent. These are issues which can be conveniently argued under one Issue as the Appellant rightly did under its Issue I .
“Thus, the striking out of Respondent’s name from the Petition on grounds of lack of jurisdiction of the lower court is inextricably tied to the issues of jurisdiction raised in grounds I and 2 of the Notice of Appeal which is equally argued under Issue I in the Appellant Brief of Argument.
“Therefore, contrary to the contention of 3rd and 4th Respondents under issue 1, paragraphs 4.1 -4.7 of their “Written Address” in support of preliminary objection, we submit that Appellant’s Grounds l, 2 and 3 of the Notice of Appeal are not only competent, they have been copiously and sufficiently argued under Issue I of the Appellant’s Brief of Argument.
“In any event, we submit that the heavy weather made by the 3rd and 4th Respondents about alleged defects in the issues formulated by the Appellant for determination is with respect misplaced and same is an attempt to robe the Appellant’s Appeal in needless technicality.
“The law is settled in a plethora of authorities of this Hon. Court that a Respondent in an appeal who has neither filed a cross-appeal nor respondent’s Notice has three options upon being served with the
Appellant’s Brief to wit:
Adopt and rely on the issues formulated by the Appellant,
Formulate his own issues different from those of the Appellant but must arise from the grounds of Appeal, and
Finally, a Respondent may adopt the Issues formulated by the Appellant but give a slant in favour of his own side of the case, see the cases of JOHN v. STATE (2016) LPELR-40103(SC), OKE v. MAJA (2013) LPELR-19908 (SC).
In response to grounds (iii) and (iv) of the Notice of Preliminary which are also argued under Issue ii in support thereof, Appellant state that 3rd and 4th Respondents’ seems to have confused the distinction and clarity between grounds of appeal and Issues raised for determination.
He submitted that while grounds of appeal filed accentuate the defects in the judgment sought to be set aside, the issues for determination accentuate the crux of the reasons encompassing one or more grounds of appeal for the determination of the appeal. see IKEMSON & ORS v. State (1989) LPELR-1473(SC) per Adophus Godwin Karibi-Whyte JSC.
He said contrary to the contention of the 3rd and 4th Respondent’s Counsel in their “Written Address” in support of Notice of Preliminary Objection, that Appellant’s Issue 2 as argued in its Appellant’s Brief of Argument seeks to accentuate the defects in the lower court’s judgment (as highlighted in grounds 5, 6 and 7 of the Notice of Appeal) leading to its abdication of duty to determine the real complaint of the Appellant’s Petition.
“There is no justification in law to strike out Appellant’s grounds 1, 2, 3, 5, 6 and 7 of the Notice of Appeal as same are competent and the Issues I and 2 of the Appellant’s Brief of Argument, properly formulated thus, the objection of the 3rd and 4th Respondents is shrouded in mere technicality which this Hon. Court has frowned at seriously,” he stated.
“We respectfully urge the Hon. Court to in addition to the 3rd and 4th Respondents’ Notice being incompetent, dismiss 3rd and 4th Respondents’ Notice of Preliminary Objection on the Appellant’s submissions made in 2.4(i) to (xi) above, he prayed the apex court.
In reply on point of law,Chief Wole Olanipekun (SAN) counsel to Tinubu and Shettima said the Notice of preliminary objections was filed in accordance with court rules.
“At this juncture, we draw Your Lordships’ attention to the Respondents’ application of 7th October, 2023 titled “NOTICE OF PRELIMINARY OBJECTION”. Your Lordships will observe that apart from being titled as such, the application is nothing like a preliminary objection in the strict legal sense of it, neither in form nor in substance.
” It contains an affidavit in support of the application as well as a written address canvassing arguments in support of the grant of the application, as mandatorily required for a motion on notice by the rules of this Honourable Court, which said affidavit and written address is uncharacteristic of a Notice of Preliminary Objection by the contemplation of the rules.
“The mere and singular fact that the said application was titled a “NOTICE OF PRELIMINARY OBJECTION” upon which the Appellant’s objection is based is non sequitur, as the process before the court, is clearly an application to the court in the mode and manner prescribed by the rules of court.
“The courts of law, including this Honourable Court, have long ago shifted from the era of holding on to form and technicality rather than substance. It is trite that the court will not sacrifice justice at the altar of technicality.
We refer Your Lordships to the decision of this Honourable Court in Psychiatric Hospitals Management Board v. Edosa (2001) 5 NWLR (Pt. 707) 612 at 623, where it was held thus:
“The courts are now more concerned with doing substantial justice than clinging to procedural technicalities and therefore concern themselves with the substance and not the form.”
“With due respect to the Appellant, arguing, as they have done in this case, that the mere titling of a court process “NOTICE OF PRELIMINARY OBJECTION” when the fundamental features of the process viewed from the prism of applicable laws point to a different direction is technicality taken too far.
” It is at best a misnomer which has no effect on the competence of the process especially in the circumstance where no substantial injustice will be done to the Appellant and the Appellant is not misled as to the nature and character of the process filed, he added.