Adegbenga Sefiu Kaka V. Otunba Gbenga Daniel & Ors (2009)

LawGlobal-Hub Lead Judgment Report

VICTOR A. O. OMAGE OFR, J.C.A

This is an appeal against the one page petition of the appellant against the decision of the Ogun State Governorship and Legislative Houses Election Tribunal which sat in Abeokuta Ogun State Coram Justice H. M. Tsammani and four others. The Tribunal delivered its judgment on 20th July, 2007. In the petition the petitioner seeks thus:- “That the election may be determined that the said Otunba Gbenga Daniel was not duly elected and returned and that his election was void and the said Adegbenga Sefiu Kaka was elected and ought to have been returned as the case may be.”

The grounds stated in the petition on which the petitioner seeks the return of himself as the Governor and the claim to voidability of the return as Governor of Ogun State of Governor Gbenga Daniel is founded as follows: – (1) That the election held on 14th April, 2007, in which he Gbenga Daniel, and Ibikunle Amosu Dipo Dina were candidates were marked with intimidation of voters, stuffing of ballot boxes, diversion of election materials and out right fraud in Shagamu Local Government, Ogun Water Side Local Government, Ijebu Ode Local Government. (2) That the 1st respondent was not duly elected by majority of lawful votes cast at the election genuine voters were harassed, intimidated and violently “cashed” away (sic) chased away to give room for thumb printing and ballot papers.

The petition was filed on 14th day of May, 2007. The Petitioner listed documents to be relied upon at the trial of the matter which list is undated. He also subscribed to an unsigned in some cases undated statements on oath as shown in the record of two witnesses. None of the statement alleged to be on oath was subscribed according to the Oaths Act.

Before the filing of the petition the appellant had filed two motions on the same prayer, one motion was made exparte the other on notice. Both motions pray “for an order to inspect all the electoral documents that were used and unused for the election”

The Petitioner/appellant wrote that the motions were not heard because the Tribunal office had not been instituted at the time he filed the motions on 14th May, 2007. On 15th June, 2007 the 1st Respondent delivered his reply to the petition to the petitioner. In the said reply the 1st Respondent had written and submitted that he would at the hearing of the petition submit that the petition as currently constituted is devoid of necessary particulars/information on facts to support allegation of intimidation of voters, stuffing of ballot boxes, diversion of election materials, fraud, thumb printing of ballot box papers alleged in the petition.

Secondly, the 1st respondent said he would submit that the petition as composed fails to declare any reasonably cause of action against the 1st respondent worthy of truth.

(3) That the petitioner does not rest his petition of any cognizable right of action, and would ask that the petition be struck out. After delivering its reply to the petition, the 2nd – 23rd filed also a preliminary objection, to the petition.

On 12th July, 2007 the respondents filed a notice of preliminary objection to the petition, and it states (1) that the election petition is defective and incompetent and that the Tribunal lacks competency and jurisdiction to hear it and ought to strike it out with substantial costs.

The other grounds objected to the petition are in substance the same as described above in the reply of the 1st Respondent to the petition.

Upon receipt of these, the Petitioner filed an application seeking to amend his petition. The Court below after listening to the submissions of all counsel decide it is appropriate and seemly to hear the prayer first which could cure the petition than to hear first the preliminary objection which seeks to dispose of the petition. The Tribunal heard the application of the petition to amend the petition and came to the conclusion on the 20th July, 2007, that it could allow amendment of the petition only on clerical error, but would not allow amendments which add to the petition, to the disadvantage of the Respondents particularly when there is in existence notice of preliminary objection to the petition. The Tribunal allowed in part, the prayer of the petitioner to amend his petition. The 1st respondent proceeded thereafter to raise the content of its preliminary objection, and so did counsel to the 2nd – 23rd respondents. Being dissatisfied with the ruling, the petitioner/applicants appealed against the ruling of the Tribunal in what the petitioner called interlocutory appeal. It is here desirable to state in some details the ruling of the Tribunal. It reads:-

“We have carefully considered the application of the Petitioner and the amendments sought herein, the amendment objected to are contained in paragraphs (i) (iii) and (iv) and are more graphically set out in the proposed amended petition attached to the application, we have also perused the content of the petition filed on 14th May, 2007. It is patently clear that the amendment sought in prayer (i) (ii) of the application is as contained in paragraph 2 (a) and (b) (i) – (xi) of the proposed amended petition annexed to the motion; upon a soberly consideration; we are of the view that the amendment sought if allowed will amount to a substantial addition to the statement of facts relied upon to support the ground to sustain the prayer against the petition. Similarly, the amendment sought in paragraph (iv) which seeks to add paragraph 3 of the proposed amended petition speaks for itself. It seeks to introduce totally new facts not contained in the original petition. We have also noted that although asked sic for his petition has scrumptiously” inserted or intended new facts, which are nowhere contained in the original petition. These amendments sought clearly in our view are not by the provision of paragraph 14(2) (a)(i)(iii) of the 1st Schedule to the Electoral Act, 2006 allowed.”

The second reason for the decision of the Lower Court’s refusal to allow petitioner the amendment sought for is that an election can only avail the petition if he applies to amend before and not after his objection has been raised as to the competence of the petition. In the instant case the Respondent had filed separately preliminary objection challenging the competence of this petition on the same issue the petitioner now seeks to amend or cure. The preliminary objection dated 11th June, 2007 and July 11th 2007 respectively are clearly earlier than the application seeking to amend which is dated 16th July, 2007. It is obvious therefore that the petitioner’s application to amend filed after the competence of the petition has been challenged is over reaching. Accordingly we hold that their (sic) application to amend cannot also be granted on this ground”.

The 1st respondent, the 2nd-23rd respondents in turn moved their notice of preliminary objection to the petition following the ruling of the Court on the partial order for amendment of the petition. The petitioner filed his amended notice of appeal and the amended petition. The Tribunal ruled on the preliminary objection and on the amended in his petition. In conclusion on both processes the Tribunal ruled thus: –

“Now we had found in favour of the 1st of Respondent/Applicant in respect of this motion challenging the competence of this petition on the same grounds as we have now found for 2nd – 23rd Respondents. We have found that requirements of paragraph 4(1 (a) – (a) of the Electoral Act as to the contents of an election petition are condition precedent to the competence of the validity of the petition and consequently the vires of jurisdiction of the Tribunal to hear and obtain same. We have round that this petition violated provisions of paragraphs 4(1) (c) and (d) of the 1st Schedule to the Electoral Act 2008. In that respect the only remedy is to decline jurisdiction to hear and determine his petition. Consequently, the petition is hereby struck out.”

It is against the judgment above which upon the preliminary objection raised the Tribunal struck out the amended petition of the petitioner. The petitioner has now appealed to this Court on grounds in which he formulated two issues for determination of the appeal. The issues are: –

(1) Whether the Election Tribunal was right to have refused the amendment proposed by the appellant to his petition dated 14th May, 2007. This is founded on grounds 1 and 2 of the petition. In my view what would have amounted to ground, or issue 2, after the dismissal of the petition in this appeal is the failure of the petition to comply with the requirement for filing a competent and valid petition. This is in the preliminary objection which the Tribunal effectively ruled upon, but which should have caused a summary dismissal of the petition. The appellant omitted it as an issue for determination of the appeal yet made submission on his yet unnamed issue which caused serious and valid objection of the 1st Respondent and 2nd – 23rd Respondents this omission is in the failure of the amended petition to slate the names and scores of all the candidates who contested the governorship election.

(b) The failure of the petition to state his fact in support of the petitions

(c) The failure of the petition to confine and itemise the paragraph distinct issue of major facts of the petition.

(d) The failure of the petition to state and show that the petitioner is the next highest scoring candidate after the 1st Respondent who was declared the winner.

(e) The petitioner fails to state the name of the occupancy of the address for service of process within the jurisdiction of the petition.”

Also the statement of witnesses is not on valid oaths.

In the course of the consideration of the grounds of appeal the issue will be discussed. The Respondent and the 2nd – 23rd respondents filed their briefs to the arguments submitted by the appellant. In his submission the Petitioner/Applicant submits that the election was invalid by reason of corrupt practices upon the act and (2) the 1st respondent was not duly elected by majority of lawful votes cast at the election.”

In the petition, no foundation of evidence for the averment was laid. However, on the 1st issue, the appellant deposed that the particulars relied upon by him were intimidation of voters, stuffing of ballot boxes, diversion of election materials, fraud, harassment, intimidation of voters and violence. These are all criminal imputations but no scintilla of foundation was laid beside the averment in the petition, not even a promise to prove them.

The situation in this appeal which the appellant calls an interlocutory appeal whereas it is the final determination of the appeal because on the determination of the amended petition, there is nothing new to determine since that is all his appeal is about and on the preliminary objection and by the 1st respondent and 2nd to 23rd Respondents. The law is provided in paragraph 14(2) (a) in the 1st Schedule to the Electoral Act, 2006 paragraph 12. Thus no amendment shall be made or allowed if it seeks to introduce any of the statutory requirement as to the contents of a petition to make a substantial alteration to the Acts relied upon on the prayer contained in the petition. Therefore failure of the petitioner to comply with the prescribed rules for content of the petition as contained in Section 147(3), and 4(1) of the Electoral Act. This renders the petition defective and denies jurisdiction to the Tribunal to preside over the petition.

See Emeka v Emordi 2004 14 NWLR (Part 90) at 433,

Abimbola v. Aderoju (1999) 5 NWLR (Part 601).

The above ground alone robs the Tribunal of jurisdiction to preside on the defective petition.

It is only for the sake of records that I consider the second part of the issue to be determined when the appellant wrote in issue to be determined thus: – “The 1st respondent was not duly elected by a majority of lawful votes.” The fact remains that in the petition, the appellant failed to state and record his own votes, let alone the votes of those who contested with him, yet he averred that “the 1st respondent was not duly elected.” In Emozie v. Obekere (2006) 8 NWLR (Part 981); and I am in total agreement with the view that the complaint that a candidate did not score the majority of lawful votes in an election is an invitation to compare and contrast the figure scored in the election. There is no alternative to saying a calculation of the registered voters, the total number of votes cast and the votes recorded by each candidate is a prerequisite to establishing the petition/applicant’s complaint, but the appellant has supplied NONE. The complaint of the Petitioner is worthless and unworthy of consideration. The appeal lacks merit.

The appeal is dismissed. There will be costs to the 1st Respondent of N10, 000.00 and N5,000.00 to the other respondents.

Other Citations: (2009)LCN/3106(CA)