Akinola Kamil V. I.N.E.C. & Ors (2009)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The appeal is against the ruling of the Election Petition Tribunal sitting in Abeokuta which was delivered on 1/11/2007 wherein the Tribunal upheld the preliminary objections of the 3rd and 21st respondents and that of the 1st, 2nd, 4th – 20th respondents.
As a result of the ruling on the two sets of respondents’ preliminary objection, the Tribunal struck out the appellant’s petition on the ground of incompetence/that appellant had no locus standi.
Being dissatisfied with the Ruling, the appellant filed an appeal on 7/11/2007 containing eight (8) Grounds of Appeal.
It is apt to state briefly the facts of the matter leading to this appeal. The appellant as the petitioner at the lower Tribunal, filed on 11/05/2007, his petition against the duly elected member representing Abeokuta North Constituency at Ogun State House of Assembly, pursuant to the nationwide election held on 14/04/2007. The preliminary objections of the two sets of respondents which were sustained and dismissed the petition were on the grounds that:-
“1. The petitioner did not specify his right (Locus Standi) to present the petition.
- The petitioner failed to comply with the provisions of Section 144(2) of the Electoral Act, 2006, by failing to properly join the individual presiding officers, returning officers and or all other persons who took part in the conduct of the said election and who allegedly participated in the several electoral malpractices in the various polling units or wards in Abeokuta North Constituency of Ogun State as pleaded in the petition.
- The afore-mentioned persons are necessary parties for the determination of the petition.
- The presiding officers petitioned as parties to the petition are merged or amalgamated together and not specified or non-pointed to particular polling unit(s).
- That the provision of section 144(2) of the Electoral Act, 2006, does not envisage joinder of persons whose titles are generated in scope, purport and intendment or whose titles are nebulous and at large.
- That the non joinder of the said presiding officers/persons strips this honourable Tribunal of its requisite jurisdiction to entertain the petition.
- That the petition is incompetent and the Tribunal lacks jurisdiction,”
When the preliminary objections were moved, the petitioner/appellant opposed the motion by filing a written submission in which he referred to his paragraphs 1 and 2 of his petition that read as follows:-
“1. Your Petitioner, Akintola Kamil, is a person who voted, had the right to vote, was a candidate, and had the right to be returned or elected at the above election.
- Your petitioner herein state that the election was held on 14th April, 2007 when he Akintola Kamil and Lukuman Adiro together with others were candidates at the said election. Lukuman Adiro was credited with 34,085 number of votes as against Akintola Kamil 9,699…”
Having stated the brief facts of the parties’ issues and grounds for the preliminary objections of the two sets of respondents and the petitioner’s objections at the lower Tribunal that finally nailed and dismissed the petition, the appellant filed his Brief on 19/02/2008, but deemly filed on 11/11/2008. In the same manner, the 3rd and 21st respondents’ Brief of Argument was filed on 29/02/2008, but deemly filed on 11/11/2008. It is noted that the 1st, 2nd, 4th – 20th respondents failed to file their Briefs. The appeal is therefore between the appellant and the 3rd and 21st respondents, though 1st, 2nd, 4th – 20th respondents being parties as 2nd sets of respondents, will be bound by the outcome of the appeal.
On 21/01/2009, parties adopted and relied on their respective briefs of argument. Learned counsel for the appellant raised seven (7) issues for determination and they read as follows:-
(1) Whether in the light of the Supreme Court Judgment in OKAFOR V. OKEKE (2007) FWLR (Pt. 368) 1016 at 1020; the Tribunal was right in refusing to entertain the motion by petitioner/appellant for striking out the joint reply on the records for the 3rd and 21st respondents dated 13th June, 2007, settled and signed by WALE ABEEB AJAYI & CO., a non-legal entity who is not on the roll as a Legal Practitioner in Nigeria. (Ground 1).
(2) Whether the learned Justices of the Tribunal were right when they permitted the 3rd and 21st respondents to move the Court to strike out the petition after taking several further steps in the proceedings, and when the objection was based on an alleged lack of pleading of a material fact already admitted by 3rd and 10th respondents in paragraph 2 of their joint reply to the petition – to wit – the petitioner’s pleading in paragraphs 1 and 2 of the petition that he was a candidate at the election. (Grounds 2 & 3).
(3) Whether in the light of the provisions of Sections 144(1) (a) of the Electoral Act, 2006 and the facts contained in the petition, admitted in the replies of respondents, and petitioner’s front-loaded written statement of witnesses, the learned Justices of the Tribunal were correct when they held that the 1st petitioner had not disclosed his locus standi to present the petition. (Ground 7).
(4) Whether the Tribunal had not denied the appellant the right to fair hearing by striking out the petition on technical grounds, without allowing the appellant to prove his case on the merit as enjoined by binding appellate judicial decisions that as far as possible, the election petitions must be determined on the merit except in case of fundamentally incurable defects of incompetence. (Ground 8).
(5) Whether it is a requirement of paragraph 4(1) (a) and (b) of the First Schedule to the Electoral Act, 2006, that a petitioner must plead his age, nationality, membership and sponsorship of a political party in order to make his petition as a candidate in an election competent, notwithstanding that no request for such further particulars was sought by respondents to the petition. (Ground 4).
(6) Whether in the light of the provisions of Section 144(2) of the Electoral Act, 2006, the Justices of the Tribunal were not wrong to have struck out paragraphs 14, 15 and 25 of the petition and subsequently striking out the names of the 5th – 14tn respondents on the ground of mis-joinder, notwithstanding that the Independent National Electoral Commission is made a party. (Ground 7).
(7) Whether the learned Justices of the Tribunal had jurisdiction to entertain the issue of the qualification of the petitioner to contest in the election under Section 106 of the Constitution of Nigeria, 1999, when petitioner was not the winner of the election sought to be questioned in the petition. (Ground 5).
Learned Counsel for the 3rd and 21st respondents duly raised preliminary objection to the appellant’s ground 1 of the Notice of Appeal and Issue 1 in the petitioner’s Brief of Argument. The preliminary objection has been argued and is contained in respondents’ Brief of Argument on pages 2 and 3 thereof which I will latter determine. The respondents have raised three (3) issues for determination and they read as follows:-
“(i) Whether (pursuant to paragraph 49(2) of the First Schedule of Electoral Act, 2006) the respondents’ objection was taken within a reasonable time.
(ii) Whether the petitioner pleaded material facts in his petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same?
(iii) Whether the Tribunal properly struck out paragraphs 14, 15 and 25 of the petition and the names of the 5th – 14th respondents.”
Argument of the 3rd and 21st respondents in respect of their preliminary objection in this appeal is that, the appellant’s appeal in this matter is against the ruling of the Tribunal on 3rd and 21st respondents’ preliminary objection which was properly argued and a ruling was given in their favour which was delivered on 1st November, 2007 and that therefore, the only appeal filed in this matter is the one dated 7/11/2007 and filed on 13/11/2007. The respondents are of the opinion that the decision of the lower Tribunal delivered on the afore-stated 13/11/2007, was specifically on their preliminary objection only, and that therefore, the appellant has no right to file his ground 1 in the Notice of Appeal, because, the lower Court did not make any decision in respect of the petitioner/appellant’s application challenging the validity of the respondents’ reply. The respondents have submitted that the ground 1 contained in the appellant’s Notice of Appeal is incompetent because, it purports to challenge a decision on priority of applications which was never moved, nor heard let alone being ruled by the lower Tribunal. The respondents have finally argued and submitted in their preliminary objection that since the issue of priority was not appealed, issue 1 in appellant’s brief is incompetent and have urged that issue 1 be struck out.
I have carefully perused the appellant’s reply brief which was filed on 16/09/2008, and to my surprise, there is no rebuttal to the preliminary objection raised by the 3rd and 21st respondents’ brief which is contained in their paragraphs 2 to paragraphs 2.2.It is settled law that, once a preliminary objection duly filed and served by the other party is not opposed, it amounts to admission of the contents and facts in the preliminary objection. In the instant appeal, it is true that the appellant’s Notice of Appeal filed on 13/11/2007 is specifically on the ruling in respect of the 3rd and 21st respondents’ preliminary objection which was filed on 24/09/2007 as contained on pages 187 to 188 of the record of appeal; and the ruling appealed against was delivered by the Tribunal on 1/11/2007.
Based on the above findings, the 3rd and 21st respondents’ objection on appellant’s ground 1 from which issue 1 is raised, is hereby sustained, appellant’s issue 1, from which he distilled ground 1, is struck out.
A critical analysis of the appellant’s remaining six (6) issues for determination vis a vis the respondents’ three (3) issues, I am of the considered views that it is not the numerical numbers of issues raised by a party that will convince the Court, but rather, it is only the appropriate and relevant issues that are distilled from proper grounds of appeal. The appellant’s issues 2, 3, 5 and 7 reproduced above are all inter-connected with the vexed issue of locus standi which is specifically the issue raised by the respondents in their issue number (ii) reproduced above. Appellant’s issue number 6 is identical with the respondents’ issue number (iii). Appellant’s issue number 4 is similar to the respondents’ issue number 1, and therefore, it is more appropriate to determine the respondents’ three (3) issues as same have encapsulated all appellant’s 6 issues.
Respondents’ Issue (i):
The appellant’s argument is that by virtue of paragraph 49(2) of the First Schedule of Electoral Act, 2006, the respondents’ objection was not taken within reasonable time as required, and that, the objection was not jurisdictional as reasoned by the lower Tribunal. Learned counsel further submitted that the respondents’ preliminary objection was merely on basis of insufficiency of particulars of the petitioner’s pleadings, which was unnecessary because the appellant had clearly pleaded that he was a candidate and contested the election which was also admitted by the respondents as per their reply pleadings. Counsel is of the contention that the lower Tribunal could not realize the distinction between insufficiency of pleading and lack of jurisdiction of the Court to entertain a petition, and that this occasioned a miscarriage of justice on the appellant. Counsel referred to the case of A. G. Leventis (Nig.) Plc. V. Akpu (2007) 17 NWLR (pt. 1063) 416, 435 where OBUAGU, JSC, stated that:-
“where there is failure to furnish further and better particulars, no evidence will be led on the facts of which particulars is required”, and that, in the instant appeal, the respondents never asked for particulars, so that failure to supply same, did not arise in their preliminary objection. The appellant has conceded that jurisdictional issue can be raised at any time, but that in an election petition, there is no corollary that a Tribunal can determine an issue of jurisdiction in limine and shut out the petitioner from being heard on the merit of his petition, and that it is now settled in numerous Court decisions to roll over such objections till the end of trial, where a case is one deserving speedy hearing. Counsel referred to and relied on Dapialong V. Dariye (2007) 8 NWLR (pt. 1036) 332, 406 and Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423. Learned appellant’s counsel then submitted that the effect of paragraphs 49(2) and (5) of the First Schedule of the Electoral Act, 2006, has merely codified the rule of prudence long commended in the cases of Dapialong (Supra) and Senate President V. Nzeribe (2004) 9 N.W.L.R. (Pt. 878) 251 which show that, even where preliminary objection goes to competence or nullity of the petition, it does not automatically entitle the objector to have it first determined before the merit of the petition as done at the lower Tribunal. That, what an objector is entitled to, under paragraphs 49(2) and (5) of the Act, is to raise it before taking fresh steps in the proceedings and immediately the defect on the face of the Petition is noticed. But that, the objector can automatically loose his right to raise the objection the moment he has failed to bring same before taking fresh steps in the hearing and immediately the defect on the face of the petition was noticed. The appellant has contended that the 3rd and 21st respondents in this appeal, had lost their right to raise the objection, because, they had filed a reply to the petition and pleaded at their paragraphs 1(b) – (d) that they would raise the issue of competence and then filed on 29/06/2007, an application challenging the jurisdiction of the lower Tribunal, but that the same respondents voluntarily withdrew their application which was struck out.
Appellant’s counsel is of the view that by the respondents’ withdrawal, they had no right to raise same again except at the proper trial and that therefore, the lower Tribunal was wrong to entertain in limine. That election petition is sui generis and is regulated by its own special procedure to the extent that for an irregularity or nullity of a petition, if not objected to, before fresh steps are taken by the party complaining, cannot be entertained as a preliminary issue before trial, and Counsel referred to the cases of Orubu V. NEC (1988) 5 N.W.L.R. (pt. 94) 323; Ogu V. Ekweremada (2006) 1 NWLR (Pt. 961) 225. The Appellant has further submitted that the lower Tribunal failed to comply with the governing rules procedure stated in paragraphs 49(2) and (5) of the Electoral Act and the Practice Directions Nos. 1 and 2 of 2007 which were bound to be obeyed by the Tribunal and all Courts. It is further contended by the appellant in his paragraph 4.21 of the brief that the respondents’ reply in which the objection was first raised, was incompetent and void because the reply was not filed by a Legal Practitioner, as same was settled and signed off by one “WALE HABEEB AJAYI & CO,” a non legal entity who is not on the roll as a Legal Practitioner and therefore lacked the statutory right to file any process in the Tribunal as they did; and relied on the case of Okafor V. Okeke (2007) FWLR (Pt.368) 1016 at 1020.
In concluding his argument on this issue of compliance with paragraph 49 of the Electoral Act, appellant’s Counsel has referred to the cases of Okoro V. Egbuoh (2006) 15 NWLR (Pt. 1001) 1; Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398; where the Supreme Court has condemned in strong terms, the bad tactics, used by litigants who adopt all kinds contrivance to invent jurisdictional objections as a delay tactics to delay or deny the hearing of the merit of the matters before the Court. Counsel has urged that this issue be resolved in favour of the appellant.
The respondents have argued this issue 1 by stating that the appellant’s rule of prudence has no judicial authority to support, and that the totality of what the appellant has argued is that, he is seeking or raising a fresh issue for which he did not apply for leave and that this Court should discountenance appellant’s argument. The respondent is of the view that the lower Tribunal was not given the opportunity to exercise any discretion on whether or not to take the objection along with the hearing of the substantive petition along with the preliminary objection.
On the need to give time to hear issue of jurisdiction, respondents’ Counsel has argued that there is a general principle of law that Courts and Tribunals when faced with application challenging the competence or jurisdiction before the Court or Tribunal, then, they should have a duty to hear the objection first before taking further steps in the proceedings. To support their contention, respondents have relied on the Court’s decisions in Waziri V. Danboyi (1999) 4 NWLR (pt. 598) 239 at 246; Tambco Leather Works V. Abbey (1998) 12 NWLR (Pt. 579) 548, 550 and ANPP V. R.O.A.S.S.D. (2005) 6 NWLR 149, 170 and urged that in the instant appeal, the Tribunal was right to take their preliminary objection first which challenged the petitioner’s Locus standi and thus the Tribunal’s jurisdiction.
The respondents further contend that their objection was taken timeously as required by paragraph 49(2) of the Electoral Act and that, there are numerous cases to show that a Party will not be prevented from challenging the jurisdiction unless hearing of the petition has commenced and referred to Bichi V. Haladu (2003) 14 NWLR (pt. 841) 624; Buhari V. Obasanjo (1903) 17 NWLR (Pt. 850) 485. Respondents have referred and relied on Section 147(3) of the Electoral Act, 2006 and submitted that paragraph 49(2) of First Schedule should give way to the Act itself, because, First Schedule is a subsidiary legislation. The respondents finally submitted in respect of their preliminary objection that it was to challenge the Locus standi of the appellant to institute the petition as the lower Tribunal had no jurisdiction to entertain the matter. Respondents have urged that their issue (1) be resolved in their favour.
In determining the parties’ First Issue, which is whether the respondents’ objection was taken within reasonable time, I am of the considered view that the provisions of paragraphs 49(2) and (5) must be looked at critically as decided by the Appellate Courts. The provision of paragraphs 49 (2) and (5) are reproduced as follows:-
“49 (2) An application to set aside an election petition or a Proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”
(underlined is for emphasis).
To understand the import of paragraphs 49 (2) and (5) quoted above, it is imperative to relate same to the provisions of Section 147 (3) of the Electoral Act, 2006, which has stated thus:-
“147 (3) Subject to the Provisions of sub-section (2) of Section 149 of this Act, on the motion of a respondent in an election petition, the Election Tribunal or Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of First Schedule of this Act.” (underlined is for emphasis).
In the first place, it is very important to always look at a Statutory Act and its respective Schedules conjunctively to understand the minds or intentions of the lawmakers or the legislatures. The Electoral Act, 2006 and First Schedule to the Act as well, were passed by both Houses of the National Assembly and signed on 2nd June, 2006 while the President of Nigeria assented same on 6th June, 2006. The lawmakers have expressly stated in Section 147 (3) of the Act that, the First Schedule should be complied with as it is stated that “on the motion of a respondent in an election petition, the Tribunal or Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of the part of the Act, or the provisions of First Schedule of the Act.” From the above stated directives of the lawmakers, the provisions of paragraph 49 (2) of the First Schedule should not be treated with laxity as if it is an infurio subsidiary legislation as the respondents have wrongly argued. The power given to the respondent in section 147 to bring a motion by objection, is not an unimpeded right, because the application must be brought in accordance with paragraphs 49 (2) and (5) of First Schedule deliberately created by the National Assembly. The control of the impeded power is that, there is a clear and unambiguous condition precedent in paragraphs 49 (2) and (5), namely that there are two crucial facts to be established, namely:-
(a) reasonable time for bringing or raising the objection,
(b) what amounts of taking fresh steps in the proceedings.
As stated by the Court in the case of Bichi V. Haladu (supra), the two questions are related in each other in that, what is a reasonable time for bringing the objection is a question of fact and depends on the actual time or stage in the proceedings. When the objection was raised, and similarly taking fresh steps, is a matter of fact. In the instant appeal, is it correct to say that the respondents’ objection had established the two facts required in paragraphs 49 (2) and (5)? In my considered examination of the affidavits in support of their application and their argument in their Brief, it has not been established. Infact, the main grounds of the objectors are that, it was merely a jurisdictional matter and also locus standi which could be raised at any stage of the proceedings or even at appeal stage. I am convinced that, that ground is baseless, because, in the first place, the respondents had earlier moved on 29/06/2007, a similar application which was then the appropriate reasonable time when the defect was noticed, but the same respondents voluntarily withdrew the application and therefore, they were foreclosed from bringing again another preliminary objection on the flimsy basis of jurisdiction. The respondents could have waited and bring their objection during proper trial of the petition as they had indicated in their reply at paragraphs 1 and 2 that they shall raise objection at, or before the trial. They had expired the time before trial when they withdrew their motion. Moreover, I have observed and found that the respondents second objection filed in September, 2007, is based on locus standi (thus, (3) three months after they withdrew similar application) on their complaint that the petitioner did not specify his (a) age, (b) Nigerian Citizenship and (c) fact of sponsorship by his political party.
Now, it is no more in-dispute that there are numerous decided authorities of superior Courts that once a petitioner has expressly stated that he was a candidate in the election, that is enough that he had established his right to present the election, OR, he had established his locus standi in the petition. See: Okonkwo V. Ngige (2006) 8 NWLR (pt. 981) 119; Waziri V. Danboyi (supra); Rimi V. INEC (supra); CA/I/EPT/GOV/10/2007 (Amosun V. INEC) delivered on 13/03/2008. Moreover, the respondents had conceded in their reply that the appellant was a candidate in the election. Respondents’ admission was therefore unnecessary in filing their application on the false ground that appellant had not established his locus standi.
The respondents’ additional grounds that the appellant did not establish his age and nationality are inapplicable, because, these appellate courts have maintained that the issue of qualification is to be used as a weapon of offence and not as a shield of defence. It is not in dispute that once the Independent National Electoral Commission has cleared a candidate in the election, the Tribunal or the Court, as the case may be, can lawfully presume that the candidate had lawfully passed the test of qualification to contest. In the instant appeal, the appellant and infact, all the respondents had agreed that the appellant was a candidate in the election. The respondents’ objection based on qualification was therefore otiose. Finally, the respondents’ objection based on mere jurisdictional issue is inacceptable because, this is one of the wrong ways in which counsel are roping it in to obtain victory. In the Supreme Court’s decision of Okoro V. Egbuoh (2006) 15 NWLR (Pt. 1001) 1, his Lordship, TOBI, JSC, at Page 23 has stated thus:-
“Because of the important position jurisdiction occupies in the judicial process; counsel have a way of roping it in to obtain victory. There are times counsel tantalise it to test the strength of their client’s case before the Court.
Although jurisdiction is a word of large purport and signification in the judicial process, it is not a subject of speculation or gossip by counsel as it is a matter of strict and hard law donated by constitution and statutes … counsel cannot be heard to take a gamble on it whenever they know or feel that the case of their client is bad. That is an employment which jurisdiction rejects.”
The erudite principle, elucidated by our Supreme Court jurist, is applicable to this appeal matter. When his Lordship referred to jurisdictional issue as a matter of strict and hard law donated by the Constitution and statutes, the Electoral Act, 2006 in Section 147 (3), has stated in paragraphs 49 (2) and (5) of the First Schedule that, for one to use the word jurisdiction in his application, the two precedent conditions namely reasonable time and taking of fresh proceedings must co-exist first before the jurisdictional power can be considered. From the above findings and conclusions, I am of the view that it was wrong for the lower Tribunal to hear the application of the 3rd and 21st respondents’ preliminary objection who willingly had withdrawn their application at the appropriate notice to file the application; and moreover, the respondents had clearly admitted in their reply pleadings that, the appellant was a candidate that contested the election held on 14/04/2007. It was therefore wrong of shutting out the appellant’s petition in limine. I resolve issue 1 in favour of the appellant.
Respondents’ Issue (ii):
Whether the petitioner had pleaded material facts in his petition to establish his locus standi and thereby vested the Tribunal with jurisdiction to entertain same.
This issue is identical with the appellant’s issue number 3. In my considered view, the issue as to whether the appellant had pleaded his locus standi; same had been argued by both parties in issue (i) which was duly considered and determined. The two issues are related because, the respondents’ objection was on the basis that the appellant did not plead the locus standi by failing to state his age, citizenship and sponsorship of his political party. Even on the basis of repetition, the appellant had pleaded in paragraphs 1 and 2 of his petition that, he was a candidate at the election, had right to vote and be voted and had the right to be returned as the winner. Not only that, he clearly pleaded the votes score by the 3rd respondent and himself. In addition to these, the respondents had also clearly admitted the fact that the appellant was a candidate in the election held on 14/04/2007 as contained in their paragraphs 1 and 2 of their reply. In the case of Uba V. Ukachukwu (2004) 10 NWLR (pt. 881), this Court held as follows at Page 255:-
“…Whenever a petitioner in a petition shows that he was a candidate in the election that alone grants him the locus standi to file the petition. I am of the view that the petitioner has the locus standi to file the petition and that, the Tribunal has the jurisdiction to entertain it.”
Similar positions were taken by this Court in Waziri V. Danboyi (supra); Rimi Vs. INEC (supra); P.P.A. V. Saraki (2007) 17 NWLR (pt, 1064) 453. A plethora of decided authorities have been following the principle that once a petitioner has pleaded that he was a candidate in the election, that is sufficient proof of his right or locus standi to present the petitioner, and the Tribunal has the jurisdictional power to hear and determine the petition. Based on the above, it is resolved that the appellant had pleaded material facts in his petition to establish his locus standi. It was wrong for the Tribunal who, in its ruling, had accepted that the duo of respondents had admitted in their reply pleadings that petitioner was a candidate in the election. It was wrong for the same Tribunal to summersault and declare that the petitioner did not disclose his locus standi this issue is resolved against the respondents and in favour of the appellant.
Respondents’ Third Issue:
Whether the Tribunal properly struck out paragraphs 14, 15 and 25 of the petition and the names of the 5th and 14th respondents.
The appellant’s issue number six (6) is similar to the respondents’ issue number 3. The argument of the appellant is that, the provision to section 144(2) of the Electoral Act, 2006, is to limit or exclude the operation of the rule that allegations against the conduct of an electoral official who is not joined as respondent is incompetent, where the Independent National Electoral Commission (INEC) is made a respondent. In other words, the appellant is of the contention that failure to join an electoral official in a petition, will not ipso facto, disentitle the petitioner to prove the allegations, and referred to and relied on the cases of Niger V. NEL Corporation (1989) 3 NWLR (Pt. 107) 68 at 84; Obasanjo V. Yusuf (supra); FMBN V. NDIC (1992) 2 NWLR (pt. 591) 333; Afribank Nig. Plc. V. K.C.G. (Nig) Ltd. (2001) 8 NWLR (Pt. 114) 87 at 92 and then submitted that the court of law or Tribunal that struck out this petition without hearing, ought to be a court or Tribunal of substantial justice and not slavish to technicalities that leads to injustice. Counsel asked this court to resolve the Issue in his favour.
The respondents have opposed the appellant’s argument and contend that the functions of presiding officers and other electoral officers are creations of statute and that they swore to the oath of allegiance to the Federal Republic of Nigeria and not to INEC that under the Electoral Act, 2006, the presiding or returning electoral officers are responsible for their actions, and that is why they are made statutory respondents in Section 144(2) of the Electoral Act. In other word, the respondents have contended that the electoral officers complained about, must be stated in petitioner’s pleading that they acted as agents of the INEC, failing which the electoral presiding or returning officers whose names are impugned without being referred to as agents of their principal INEC, their names will be struck out as done by the lower Tribunal in the instant appeal. Respondents have urged that this Court should affirm the decision of the Tribunal who struck out petitioner’s paragraphs 14, 15 and 25 as well as the names of the 5th – 14th respondents.
It is trite law now that in an election petition, where the Independent National Electoral Commission is made a party, the non-joinder of a returning officer, an electoral officer or presiding officer at a polling station to the election petition, will not have any adverse effect on the petition. The petition subsists notwithstanding the non-joinder of the electoral officers whose conducts are complained of or impugned. Based on the above position of law, appellant’s issue number 6 which is similar with the respondents’ issue number 3 are resolved in favour of the appellant. It was pertinently wrong for the lower Tribunal who struck out the petitioner’s paragraphs 14, 15 and 25 of the petition and the names of the 5th – 14th respondents. In the instant appeal, petitioner’s paragraphs 14, 15 and 25 of the petition are complaining against the presiding/returning electoral officers during the election held on 14/04/2007 into the States House of Assembly. Those paragraphs and names of respondents are valid and since the name of INEC is mentioned as the 1st respondent, the petition subsists and cannot have any advert effect whatsoever.
In the final analysis, having resolved all relevant issues in favour of the appellant, I am fully satisfied that the appeal is meritorious and I hereby allow the appeal and order that the appellant’s petition should, and is hereby sent back to the Tribunal as the Honourable President of the Court of Appeal may, by the powers imposed on him by Section 285 (4) of the Constitution of Nigeria, 1999, make appropriate Panel to hear and determine the petition on its merit.
Costs of N30, 000.00 in favour of the petitioner and against the two (2) sets of Respondents.
Other Citations: (2009)LCN/3144(CA)
