Ahmed Saka V. Mr. Pelumi Adeboiye & Anor (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Ogun State, sitting at Abeokuta, in Petition No. EPT/OG/HA/36/2007, against the Ruling of the Tribunal Coram: Honourable Justices H. M. Tsammani, B. H. Ismail, C. U. Ukpe, U. M. Sodiq and C. O. Onyeabo, delivered on the 3rd day of November, 2007 on a preliminary objection brought by the 1st Respondent. The facts leading up this Appeal are briefly set out as follows:-
“Elections were held throughout the Federal Republic of Nigeria on the 14th April, 2007 into the state Legislative Houses of Assembly. The Petitioner/appellant contested the election on the platform of Action Congress (AC) into the Ogun State House of assembly for Remo North Constituency and at the end of the election, the 1st Respondent was declared winner of the election by the 2nd Respondent, the Independent National Electoral commission (INEC)”
Aggrieved by the return of the 1st Respondent at the said election, the Appellant filed a Petition No. EPT/OG/HA/36/07 on the 14th of May, 2007 against the Respondents on the following grounds (in summary):-
(a) The 1st Respondent was not duly elected by a majority of lawful votes cast at the election as voting was frustrated.
(b) That the return of the 1st Respondent at the election (for Ogun State House of Assembly Remo North) was invalid by reasons of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.
The Appellant then prayed the Tribunal that it be determined as follows:-
(a) That the purported return of the 1st Respondent for Remo North Constituency of Ogun State Legislative House by the 2nd – 4th Respondents on the 14th April, 2007 election be declared invalid, null and void and of no effect whatsoever, because of corrupt practices and non-compliance with the provisions of the Electoral Act, or the Appellant be declared winner.
(b) An Order of the Tribunal that the 2nd – 4th Respondents should conduct fresh and new election in the said constituency following the due process of the law.
The 1st Respondent filed an application by way of preliminary objection dated the 27th September, 2007 and filed on the 28th September, 2007. The application is predicated on the following grounds:
(i) The Petitioner did not specify his right to present this Election Petition and therefore failed to establish his locus standi.
(ii) The Petitioner failed to comply with Section 144 (2) of the Electoral Act, 2006 by failing to properly join the individual presiding officers and other INEC Officers (who are necessary parties to the Petition; who took part in the conduct of the election in question against whom he made allegations of malpractice).
(iii) Paragraphs 10, 11, 12, 13, 14, 16, 17, 18, 19, 23, 25, 26, 27, 28, 29, 30 and 31 of the Petition are inconsistent, vague, bogus without sufficient and material particulars to sustain the allegations made therein and therefore discloses no reasonable cause of action as well as constitute an abuse of Court process.
(iv) The Petition is consequently incompetent and the Honourable Tribunal therefore lacks jurisdiction to entertain same.
The Tribunal entered a considered Ruling on this application on the 3rd of November, 2007 and struck out the entire Petition. Dissatisfied with the decision of the Tribunal, the Appellant filed his Notice of Appeal dated and filed the 16th November, 2007.
In accordance with the Rules of this Court, the Appellant filed his Brief of Argument dated the 31st of March, 2008, but filed on the 8th of April, 2008. Having regard to the grounds of Appeal filed, the Appellant contend that the following are Issues arising for determination in this appeal.
(1) Whether in the circumstances of the history of the proceedings before the Tribunal, the Tribunal was right when it entertained the 1st Respondent’s motion on notice dated 28/9/2007 filed after the Applicant had taken several further steps (including an earlier similar application already heard by the Tribunal) in the Petition and much after commencement of pre-hearing session and extension of time to conclude same. (Grounds 1, 2 and 3).
(2) Whether in the light of the provisions of Section 144 (2) of the Electoral Act, 2006 and the provision thereto (and the facts contained in the Petition) the learned Tribunal was right when it held that non-joinder of certain Electoral Officers as parties to the Petition despite the joinder of INEC as parties, must result to the striking out of all the paragraphs complaining of the conducts of such officers not joined as parties. (Grounds 4, 5 and 6).
(3) Whether the learned Tribunal was right to have entertained the application of the 1sl Respondent dated 28/9/2007 on its merit in the light of the Court of Appeal Ruling in the unreported case in Suit No. CA/A/EPT/3/07 between: Alhaji Atiku Abubakar &. Others V. Alhaji Umaru Yar’Adua & Others (unreported) delivered on 20th September, 2007. (Grounds 1, 2, 6 and 7).
(4) Whether the learned Tribunal was right in the circumstances of the Petition to have struck out most of the paragraphs of the Petition on the ground that the paragraphs of the Petition are inconsistent, vague, bogus without sufficient and material particulars to sustain the allegation made therein when evidence has not been led by the parties. (Grounds 7, 8, 9, 10, 11 and 12).
The 1st Respondent filed his Brief of argument dated 14th April, 2008, but filed on the 18th April, 2008. In the said Brief of argument, he formulated two Issues for determination in this appeal from the grounds of appeal, and they are:-
(i) Whether or not the 1st Respondent’s motion dated 27/9/07 (at pages 85-95 of the Record) was competent and rightly entertained by the lower Court having regard to the time it was brought and the fact that an earlier motion on jurisdiction had been taken and determined by the same Court?
(ii) Whether or not the Petition was competent before the Tribunal having regard to the issues of the state of the petition, in Petitioner’s locus standi and compliance or non-compliance with Section 144 of the Electoral Act, 2006 (the Act) by the Petitioner.
By a Motion on Notice brought under Order 7 Rule 10 of Court of Appeal Rules, 2007, dated 17th of March, 2009 and filed on the 19th of March, 2009, George Oyeniyi Esquire, Learned Counsel to Appellant, moved this Court and sought for an order to set down and hear this appeal on the Appellant’s and 1st Respondent’s Briefs of argument alone in default of the 2nd – 5th Respondents filing their Briefs. The said application was granted by this Court on the 23rd March, 2009. This Court shall therefore proceed to consider only the Appellant and 1st Respondent’s Briefs of argument alone. The Appellant argues the Issues seriatim. Issue One and Issue Three are taken together.
ISSUES 1 AND 3:
The Appellant submits that while it is true that preliminary objection is a jurisdictional issue and can be raised at any time, there is no corollary that a Court or indeed Election Tribunal must determine same in limine and shut out the litigant from being heard on the merit of his case. The approach of the Court’s these days is to pack such objection till the end of trial where a case is one deserving speedy hearing, especially where the subject matter is likely to lapse, as needs must be the case in election petition concerned with a fixed tenure of office. See:- Dapialong V. Dariye (2007) 8 WRN (pt. 1036) SC 332 at 406; Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Senate President V. Nzeribe (2004) 9 NWLR (Pt.878) 251.
The Appellant further submits that in the foregoing con, the procedure open to the Tribunal to follow is explicitly stated in paragraph 49 (2) to (5) of the 1st Schedule to the Electoral Act, 2006. Appellant further submits that election petition is sui generis. It is regulated by its own special procedure and except in case of lacunae, ordinary principles that regulate civil procedure are inapplicable, irregularity or nullity of a petition if not objected before fresh steps is taken by the party complaining cannot be entertained as a preliminary issue before trial. See:- Orubu V. NEC (1988) 5 NWLR (Pt. 94) 323; Ogu V. Ekweremadu (2006) 1 NWLR (Pt. 961) 225 at 277.
The Appellant submits further that the objections were wrongly projected as jurisdictional. What indeed the 1st Respondent was complaining about in his motion was that, the Petition was devoid of sufficient Particulars and non-joinder of certain electoral officers. It is submitted that what the Respondents were entitled to ask for further and better particulars, is found in Paragraph 17 (1) and (2) of the First Schedule to the Electoral Act, 2006. See:- Okoro V. Egbuoh (2006) 15 NWLR (pt. 1001) 1. Appellant submits further that, having regard to the issues already joined with the Petitioner, the Respondents in their replies, including the admission therein whatever was left of the issue regarding the competence of the petition and non-joinder of parties could only be properly resolved at trial not as preliminary objection. See: Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 at 419; Suhari V. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 505 Paragraph “F”.
The Appellant further submitted that if the lower Tribunal had taken time to properly considered, the ratio of the Court of Appeal Ruling in Atiku V. Yar’Adua’s Case (supra) particularly as regards the competence of any belatedly application brought by parties to an election petition after several steps had been taken in the course of the pre-hearing session, the Tribunal would not have fallen into the error of entertaining such an application on its merit. Appellant submits further that two authorities vizly:- the Cases of Hon. Baba Bichi V. Haladu (2004) IEPR 587 and Buhari V. Obasanjo (2003) 12 NWLR (Pt. 850) 423 at 473 Paragraphs G-H cited by the 1st Respondent and relied upon by the lower Tribunal as basis for entertaining the preliminary objection of the 1st Respondent are quite distinguishable from the present case. Appellant further submits that under the doctrine of stare decisis, the lower Tribunal is bound to follow and apply the decision of higher Courts which per force similar and relevant to the resolution of the issues so as to meet the substantial justice of the case rather than hiding under technicality. This Court is urged to resolve both Issues 1 and 3 in favour of the Appellant.
Issues 2 and 4:
The Appellant submits that the lower Tribunal misconstrued the provision of Section 144 (2) of the First Schedule to the Electoral Act, 2006, thereby leading to the striking out of the relevant paragraphs of the Petition in isolation without adverting their minds to the proviso of the said Section 144 (2) of the same provisions which has therefore occasioned miscarriage of justice and denial of fair hearing to the Petitioner. The Appellant further submits that the joinder of parties is not a jurisdictional issue and should be left for trial state. See:- Atiku V. Yar’Adua (supra). Appellant further submits that non-joinder of INEC Officers as operate to render the Petition incompetent since the Returning Officers are presumed in law and in fact to have been joined as Respondents, the INEC has been made a party. See:- Ugwu V. Ararume (unreported decision of the Supreme Court in SC/63/07, delivered on 8/6/07). Court is urged to resolve Issue in favour of the Appellant.
On Issue 4, the Appellant submits that the alleged vagueness and or insufficient pleadings issue was not jurisdictional in nature by virtue of Section 17 of the First Schedule to the Electoral Act, 2006. The 1st Respondent/Applicant is entitled to ask for further particulars, and their failure to exercise this right should not have entitled same to benefit from their error. By striking out the Petition without trial, the Tribunal effectively shut the Petitioner out from proving his case on the merit thereby occasioned grave miscarriage of justice. Appellant further submits that judicial decisions enjoins that, as far as possible, election petitions must be determined on the merit, except in cases of fundamentally incurable defects or incompetence. This Court is urged to resolve Issue 4 in favour of the Appellant. Appellant also submits finally that this Court should allow the appeal, set aside the Ruling of the lower Tribunal and direct that the Petition be heard on the merit.
In reply, the 1st Respondent submitted on his Issue No. 1 that, it is a settled elementary principle of law that the issue of jurisdiction can be raised at any time within the pendency of the proceedings, particularly when the issue touches on the locus standi of the Petitioner to bring the Petition which is a substantive jurisdictional matter. The 1st Respondent further submits that the issue of “Fresh Steps” is immaterial, where the issue of locus standi has been raised and that the issue of locus standi is so fundamental that when it is in issue and not decided, the proceedings in the suit, no matter how well conducted, would amount to a nullity if the Petitioner lacks the requisite locus, or, if the matter is otherwise incompetent. See:- Attorney-General Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Ukwu V. Burge (1997) 8 NWLR (Pt. 578) 527 and Messrs N. V. Scheep V. The M. V. “S. Araz” (2000) 12 SC (pt. 11) 133.
The 1st Respondent submits further that taking of “Fresh Steps” must be defined in the con of Paragraph 49 (2) of the First Schedule to the Electoral Act, 2006. See:- Hon. Baba Bichi & Another V. Ahmed Haladu & Others (2003) Volume 1 EPR 587 at 604-605. The 1st Respondent further submits that the Appellant’s contention that his second motion was an abuse of the Court process after he had filed the first motion, is misconceived, because, the grounds of the two motions are totally different; the issues raised therein are different and Court should resolve this Issue in favour of the 1st Respondent.
On Issue (ii), the 1st Respondent submits that the Petitioner failed to comply with the mandatory provisions of the Electoral Act, 2006 and the provision of the 1999 Constitution, because, the Petition (at Pages 1-14 of the Record), evidently lacks the essential ingredients of a valid election petition as envisaged by Paragraph 4 (1) (6) of the Rules, Paragraph 4 (6) and also Paragraph14 (2) a (i) of the Rules. See:- Kotoye V. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419. The 1st Respondent submits that the defects on the Petitioner’s petition are apparent on the face thereof and therefore not in compliance with Paragraph 4 (1) (b) of the Rules and Section 106 of the 1999 Constitution. See:- Nwonye V. Anyichie (2005) 21 NSCQR 358 at 385; Effiong V. Ikpeme (1999) NWLR (Pt. 606) 271. The 1st Respondent further submits on effect of the Petition that is void the question was adequately answered by Lord Denning in Mcroy V. UAC (1.962) AC, 52. He said: “if an act is void, then, it is in law a nullity. It is not only bad, but incurably bad. Every proceeding which is founded upon it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse.”
The 1st Respondent further submits that the word “shall”, used in Paragraph 4 of the Rules, in its ordinary meaning, is a word of command and one which has always or which must be given a compulsory meaning as denoting obligation. Thus, if a statute provides that a thing shall be done, the natural and proper meaning is that, a pre-emptory mandate is enjoined. See:- Achineku V. Isagba (1988) 4 NWLR (Pt. 89) 411 at 420 Paragraphs A-C. The 1st Respondent further submits that under Section 144 (2) of the Electoral Act and Paragraph47 (1) of the Rules, if the Petitioner/Appellant complains of the conduct of an Electoral Officer and other Officers of INEC who took part in the election, he must join them as Respondents individually, failing which the petition is bad and incompetent and the Tribunal lacks jurisdiction in respect thereof. See:- Chief Hope Uzodinma V. Chief Achike Udenwa & Others (2004) 1 NWLR (Pt. 854) 303 at 329-331; Nnachi V. Ikem & Others (2004) 1 NWLR (Pt. 900) 614 at 632-633; Abubakar & Others V. INEC & Others (2004) 1 NWLR (Pt. 854) 207 at 232-233.
The 1st Respondent submits further that failure to comply with Section 144 (2) of the Electoral Act, is not a mere irregularity, but a fundamental defect. See:- Dr. Authur A. Nwankwo & Others V. Alhaji Umaru Yar’Adua & Others (unreported suit No. CA/A/EP/6/07) delivered on 3/9/2007. The 1st Respondent submits further on the issue of vagueness and non-disclosure of reasonable cause of action that Paragraphs 10, 11, 12, 13, 14, 16, 17, 18, 19, 23, 24, 25, 26, 27, 28, 29, 30 and 31 of the Petition are inconsistent, vague, bogus and without sufficient and material particulars to sustain the allegation therein and therefore liable to be struck out. Order 26 Rules 4 (1), 5 and 6 (1) of the Federal High Court Rules on how facts in a pleading must be pleaded.
The 1st Respondent further submits that election petition is in a class of its own. It is neither a civil nor a criminal proceeding. It is a unique procedure which requires full compliance with the mandatory provisions of the Electoral Act. It is also a technical proceeding. The indulgences which litigants enjoy in civil proceedings are hardly available in election petition proceedings. See:- Ogu V. Ekweremedu (2006) 1 NWLR (Pt. 961) 255 at 277 Paragraphs F-H; Buhari V. Dikko Yusuf (2003) 14 NWLR (Pt. 841) 446 at 498-499 Paragraphs G-B. The 1st Respondent finally submits that this Court should hold that the Petitioner/Appellant’s Petition was rightly held by the lower Court to be incurably bad and defective, because, it failed to comply with the mandatory requirements of Paragraph 4 (1) (b) of First Schedule to the Electoral Act, 2006 and Section 106 of the 1999 Constitution when he failed to state his citizenship, age and educational qualification. Also, Section 144 (2) of the Electoral Act, 2006 by not joining all necessary parties to the Petition. Also for being vague and lacking insufficient material to sustain petition, he neither amend nor give evidence in respect of the fundamental facts.
I have carefully considered the arguments proffered by all the parties in this appeal.
It is settled law that, the Appellate Court is not bound or under a duty to take all issues formulated by a party or parties for the determination of an appeal, in order to give decision. See:- Okoro V. The State (1988) 12 SC 191; Lenole V. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria; Ugbobia & 3 Others (2003) 3 SCN 39; (2003) 1 SCNJ 463; Latunde & Another V. Bella Lafufin (1989) S SC, S9; (1989) 2 SCNJ 59.
In other words, an Appellate Court can prefer an issue or issues formulated by any of the parties and can itself or on its own formulate issues which it considers to be germane to and pertinent in the judicious determination of the matter in controversy. See:- Anor V. Dr. Anthony Mimra & Others (2008) 2 SCN 55 at 71.
To my mind, the issues for determination in this appeal are:-
(1) Whether the raising of the 1st preliminary objection by the 1st Respondent/Applicant on the competence of the petition which was determined by the Tribunal in a considered Ruling had stopped him from bringing another application challenging the competence of the same petition the second time.
(2) Whether the second preliminary application brought by the 1st Respondent which formed the basis on which the petition was struck out constitutes an abuse of Court process.
(3) Whether the 1st Respondent’s 2nd preliminary application was belatedly brought after the parties had taken fresh steps in the course of the pre-hearing session in this petition, and the effect of Section 144 (2) of the Electoral Act, 2006 and the insufficient material particulars.
The first issue to consider is the application of estoppel. What are the ingredients of estoppel this Court has considered in the case of Tiamiyu V. Olaogun (2009) 9 WRN (Pt. 216) 68 at 77 Ratio 10.
“On Issue of Estoppel – For issue estoppel to apply, the following ingredients must be presented:
(1) The parties must be the same in the previous and present actions,
(2) the same question that was decided in the previous action must arise in the present action in respect of the same subject matter, and
(3) that question must be a final decision of a competent Court. The issue must have been resolved in the previous suits. See:- Ebba & Ors. V. Ogodo & Ors. (2003) WRN 70; (2000) FWLR (Pt. 27) 2094; (2000) 10 NWLR (pt. 675) 387; (1984) 1 SCNLR 372” per UWA, JCA (Pages 101-102) Lines 30-5.
From the Record of the Appeal before the Court, the motion on notice which resulted in the Tribunal’s Ruling of the 21st of September, 2007, was brought by the Applicant, the 1st Respondent, pursuant to Section 147 (3) of the Electoral Act, 2006 and Paragraphs 4 (6) of the First Schedule to the Electoral Act, 2006 and Inherent Jurisdiction of the Tribunal. From the records at Page 85, the 2nd motion which gave rise to the Tribunal’s Ruling of the 3rd day of November, 2007, was filed on the 28th of September, 2007 and brought pursuant to Section 106 of the 1999 Constitution, Sections 144 (2) and 147 (3) of the Electoral Act, 2006, Paragraphs 4(1) (b), 4 (6) and 47 (1) of the First Schedule to the Electoral Act, 2006, Order 26 Rule 20 of the Federal High Court Rules and the Inherent Jurisdiction of the Tribunal.
Going by the ingredients of Issue estoppel stated earlier in Tiamiyu V. Olaogun (supra), the parties in the two motions are the same, but the question that arose in the first motion is not of the same subject matter with the second motion, having being brought under different laws as stated above, i.e., the Constitution of the Federal Republic of Nigeria, the two motions were brought under different Sections of the Electoral Act as stated above, and different Paragraphs of the First Schedule to the Electoral Act, 2006. Also, although the decisions of the Tribunal in the two Rulings were both final decisions, the issues were resolved differently. The contention of the Appellant/Respondent that the Tribunal was estopped from hearing and determining the second motion cannot hold, as issue estoppels cannot apply in the present appeal. Issue 1 resolved in favour of the Respondent/Applicant.
On Issue NO.2 which deals with the abuse of Court process.
On the meaning and connotation of abuse of Court process, this Court in the case of Pam V. A.N.P.P. (2008) 4 NWLR (pt. 1077) 219 at 231 Ratio 16 provides thus:-
“Abuse of Court process consist of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting actions between the same parties simultaneously in different Courts even though on different grounds. An abuse of Court process may lie in both a proper or improper use of judicial process in litigation. The employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice, this will arise in instituting a multiplicity of actions on the same matter between the same parties even where there exists a right to institute the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right parse.
See:- Shell Trustees (Nig.) Ltd. V. Imani & Sons Ltd. V. (2000) 6 NWLR (Pt. 662) 139 at 660; Okorodudu V. Okorodudu (1977) 3SC 21; Oyegbola V. Esso West Africa Inc. (1966) 2 SCNLR 35; Saraki V. Kotoye (1992 9 NWLR (pt. 264) 156.”
From the meaning and connotation of abuse of Court process stated above, the heartbeat is the multiplicity of actions in different Courts on the same subject matter. This is not the case in the instant appeal. The action is one action, and within the same action, two different applications were brought at different times with different subject matters. The Appellant had argued in his Brief of argument that the Tribunal while overruling his submission on the proprietary of the competence, the 1st Respondent’s second preliminary objection dated 28th September, 2007 to the effect that the application was brought which touches on the jurisdiction of the Court is different from the application of 10th August, 2007 brought by the same 1st Respondent. The Appellant argues that this amounts to litigation by piecemeal, installment objections and divided arguments. All of these have been held amounts to abuse of Court process. See:- Central Bank of Nigeria V. Ahmed (2001) 11 NWLR (pt. 724) 369 at 408 Paragraphs A-B. Whatever argument that is proffered by the Appellant in respect of what is perceived as abuse of process of Court, the two applications as determined by this Court in the case of estoppel, were brought on different subject matters under different laws. This is not an abuse of Court process, but the exercise of one’s right to prosecute his case within the confines of the law. Issue Two also resolved in favour of the Respondent.
On Issue Three, the taking of fresh step, effect of Section 144 (2) of the Electoral Act, 2006, and the insufficiency of material particulars. The Appellant had argued on taking fresh steps, that under and by virtue of the provisions of Paragraph 49 (2) of the First Schedule to the Electoral Act, 2006, the objections of the Respondent to the hearing of the petition ought to have been filed within a reasonable time after the petition was served on them, and before taken any further steps in the proceedings.
And this the 1st Respondent exercised in his application dated 10th August, 2007 which was earlier argued and determined by the Tribunal. The Appellant argues further that Paragraph 49 (2) and (5) of the First Scheduleto the Electoral Act, 2006, merely codify the Rule of prudence. The fact that an objection goes to competence or argues nullity of a petition does not automatically entitle the objector to have it determined first before the merit of the case is presented. It entitled the objector to raise it first, but having been so raised, the right to that priority of hearing of objection is however lost where (as in this case), the objector respondents in the trial Tribunal patently failed to:-
(1) bring the objection before taken fresh steps in the proceedings; and
(2) immediately the defect on the face of the petition is noticed.
The Respondent reacted to the Appellant’s submissions that taking of fresh step, the Appellant must define what amounts to “Reasonable time or taking fresh steps”. In the petition before the lower Court, we were still at the pre-trial stage. The trial of the substantive petition had not commended as evidenced by the Records. In fact, the Petitioner/Appellant had not reported the conclusion of the ordered inspection of INEC materials making it impossible to have a hearing date in view. We had no idea yet when trial would commence. In fact, by the order of the lower Court (the Tribunal) at Page 124A of the Records, pretrial session was extended to accommodate further inspection of INEC materials by the Appellant. The 1st Respondent’s motion in question was brought timeously and that the Applicant had not taken fresh steps that should have foreclosed him from raising the issues that he has raised therein. What amount to taking “fresh steps? This Court held in Hon. Baba Bichi & another V. Ahmed Haldu & Others (2003) Volume 1 Election Petition Reports (E.P.R.) 587 at 601-605:
“What is a reasonable time for bringing the objection in a question of fact and depends on the actual time or stage in the proceedings when the objection is raised. Similarly, what amounts to taking fresh steps in the proceedings depends on the process so far filed … and whether the stage is merely preparatory to the trial (i.e., pre-trial) or whether the actual trial or hearing has commenced or is about to commence.”
It was also held in the same Baba Bichi’s Case (supra) at Page 599 as follows:-
“In the instant appeal at the stage when the objection was taken though pleading had been concluded, evidence had not been taken. It cannot therefore be said that Respondents or the 1st and 2nd Respondents had taken fresh steps in the petition that foreclosed them from raising the objection.”
In the instant appeal … the stage of the trial was clearly stated. The Appellant in his own submissions, did not dispute the stage. Although, parties had exchanged pleadings, the actual hearing of the petition had not commenced hence the Appellant had not reported the conclusion of the ordered inspection of INEC materials, for a hearing date of the petition to be appointed by the Tribunal. The Appellant’s grouse was the time the Tribunal heard this motion. Even though filed which may not constitute taking of fresh steps, but that, the Tribunal ought to have deferred decision on the 2nd application until the time when hearing is concluded and the final decision is to be taken. He argued further that while it is true that jurisdictional issue can be raised at any time, there is no corollary that a Court or indeed an Election Tribunal must determine same in limine and shut out the litigant from being heard on the merit of his case. The approach of the Court’s these days, is to pack such objection till the end of trial where a case is one deserving speedy hearing, especially where the subject matter is likely to lapse, as needs must be the case in election petition concerned with a fixed tenure of office. See:- Dapialong V. Dariye (2007) 8 WRN (Pt. 1036) 332 at 406; Inakoju V. Adeleke (1007) 4 NWLR (pt. 1025) 423.
The long and short of all the arguments proffered by either side in the instant appeal is that, the stage at which the 2nd application was filed by the 1st Respondent in the trial, no fresh steps had been taken in the matter to foreclose his right of doing so. What remains is whether it was proper on the part of the Tribunal to have struck out the entire petition at that stage in view of the effect of Section 144 (2) of the Electoral Act, 2006, and the insufficiency of material particulars provided by the Appellant. Section 144 (2) of the Electoral Act, 2006 provides:-
“The person whose election is complained of is, in this Act, referred to as the Respondent, but, if the Petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”
The Tribunal in its Ruling of the 3rd day of November, 2007, contained at page 135 of the Records, but more particularly Pages 141 last paragraph to 142 on the effect of Section 144 (2) of the Electoral Act, 2006 stated thus:-
“Mr. Jibodu Esquire, Counsel to the 1st Respondent/Applicant, submitted that the Petitioner had made an allegation at Paragraphs 23, 25, 26, 28 and 29 of the Petition.”
In the above quoted paragraphs of the petition, the Petitioner made allegation which goes to the polling unit which allegations are made against the conduct of the Polling Clerk, Presiding Officers and of course, the Returning Officers; but in his petition, he failed to join them as party in the petition. It is further submitted by Counsel that in order to accord these unnamed officials with fair hearing, they must be in a position to respond to various allegation, most of which are criminal offences. These officers must be joined in their official status or shown to have acted by pleading same in the petition that they are agents of Commission where the Commission is made a respondent. In this case, the Petitioner failed to indicate sufficient materials to identify them with any polling unit. So that identity is not known and it goes without saying therefore that the fact of their acting as agents of INEC cannot properly be ascertained.
At Page 142 of the Records, the Tribunal in its Ruling on this submission made by the 1st Respondent/Applicant, 4th Paragraph stated:-
“It is clear from the heading of Section 144 (2) of the Electoral Act, 2006, that the proviso to the Section can only be invoked and come into play if it is expressly pleaded in the petition that all the officials like Electoral Officers, Returning Officers, Presiding Officers, Poll clerks and other Officers that took part in the conduct of the election are agents of the Independent National Electoral Commission in the conduct of the election.
It therefore follows that where there is no express pleading in the petition alleging that Electoral Officers are agents of the Independent National Electoral Commission, then the proviso to Section 144 (2) cannot come into play. And ipso facts such officials must be joined by their official name in the petition.
Accordingly, failure to either expressly pleaded in the Petition that all the officials like Electoral officers, Returning Officers, Presiding Officers, Polling Clerks and other Officers that took part in the conduct of the election are agents of INEC or join them by their official names in the petition is fatal to the petition, the Tribunal will have no option but to strike out all paragraphs in the petition that made allegations of the officers that are not so joined.”
The Tribunal from the Records struck out those Paragraphs.
The Appellant in his Brief of argument responded to the position taken by the Tribunal and stated:-
“The lower Tribunal misconstrued the provision of Section 144 (2) of the First Schedule to the Electoral Act, 2006, thereby leading to the striking out of the relevant paragraphs of the petition in isolation without adverting their minds to the proviso of the said Section 144 (2) of the same provisions which has therefore occasioned miscarriage of justice and denial of fair hearing to the Petitioner.”
I have carefully examined the provision of Section 144 (2) of the Electoral Act, 2006 and the proviso thereto. I cannot find as claimed by the lower Tribunal that the proviso to the Section can only be invoked and come into play if it is expressly pleaded in the petition. The provision is very clear, it says:-
…provided that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”
It is very clear therefore if the Commission is joined or made a party, the issue of agency becomes evidence. It is only by evidence that agency relationship can be ascertained.
The law is already settled on the interpretation of a statute where the words used are clear and unambiguous; it must be given its ordinary meaning. See:- Gani Fawehinmi V. Nigeria Bar Association (2002) 50 WRN 27; (1989) 2 NWLR (Pt. 105) 558; U.T.C. Nigeria Ltd. V. Chief J. P. Pamotu & Others (2001) 43 WRN 63; (1989) 3 SC 79; Attorney-General of the Federation V. All Nigeria People’s Party (ANPP) (2003) 2 WRN 62; (2003) 15 NWLR (Pt. 844) 400; People’s Democratic Party (PDP) V. Independent National Electoral Commission (INEC) (1999) 11 NWLR (Pt.262) 200; P. N. Uddoh Trading Company Ltd. V. Sunday Abere (2001) 1 WRN 1; (2001) 11 NWLR (Pt. 723) 14.
It is trite law that evidence is not pleaded but facts. It is unfortunate that the lower Tribunal found itself in grave error when it insisted that the Appellant who was the Petitioner before it must plead agency relationship between the officers of the Commission, when he had made the Commission a party to his petition by the proviso to Section 144 (2) of the Electoral Act, 2006.
This Court has pronounced on the issue of joinder of parties in the unreported case of Alhaji Atiku Abubakar & 20 Others V. Alhaji Yar’Adua (supra) in CA/A/EPT/03/2007 wherein it stated that:-
“The issue of joinder of parties is not a jurisdictional issue and that such issue should be left for trial stage.”
This principle was stated in the Ruling dated 22nd September, 2007 in the Suit CA/A/EPT/03/2007. On this leg of the effect of Section 144 (2) of the Electoral Act, 2006, the issue is resolved in favour of the Appellant. The lower Tribunal ought to have allowed hearing since the Commission was made a party, the issue of proof therefore lies with the Appellant as Petitioner before it.
On the issue of vagueness and non-disclosure of reasonable cause of action in Paragraphs 10, 11, 12, 13, 14, 16, 17, 18, 19, 23, 24, 25, 26, 27, 28, 29, 30 and 31, the Tribunal in its Ruling at Page 144 of the Records 1st Paragraph stated:-
“The statements in the above paragraph are statement of facts and are neither vague, nor bogus, but contained sufficient material particulars to sustain the petition. It is also worthy of note that 1st Respondent had already filed his reply to the petition on all the averments contained therein the paragraph and asking the Tribunal to hold that the petition lacks sufficient materials particulars to sustain the allegation therein; when evidence has not been laid will tantamount to asking the Petitioner to plead evidence which is contrary to Order 26, Federal High Court (Civil Procedure) Rules, 2000.”
The Tribunal on this leg at Page 147 of the records said:-
“We therefore hold that the Petitioner satisfied the requirements of Paragraph 4 (1) (b) of the 1st Schedule to the Electoral Act, 2006. The application has failed on this issue.”
Even though the issue of Paragraph 4 (1) (b) of the 1st Schedule to the Electoral Act, 2006, was resolved by the lower Tribunal in favour of the Appellant, yet the Appellant made it an issue again in this appeal. It would have been unnecessary to do so; it is a mere surplus-age on the part of the Appellant. Issue on Paragraph 4 (1) (b) resolved in favour of the Appellant.
What is left to be said is that, the lower Tribunal had enough material before it, to have allowed the hearing in this petition to proceed, and have it determined on the merit. It failed to do so and thus denied the Appellant the right to ventilate his grievances.
In the final analysis, this appeal succeeds in part. The Ruling of the National Assembly Governorship and Legislative Houses Election Petition Tribunal, Ogun State in Suit No. EPT/OG/HA/36/2007, delivered on 3rd day of November, 2007, Coram Sadiq J., is hereby set aside only in relation to Issue No. 3 on effect of Section 144 (2) of the Election Act, 2006, on non-joinder of Electoral Officers complained about in the petition. It is ordered that, all the Paragraphs of the petition in relation to Section 144 (2) of the Electoral Act, 2006, hitherto struck out in the said Ruling, are hereby restored back to the petition.
Also, All the Paragraphs and arguments in relation to Paragraph 4 (1) (b) of the First Schedule to the Electoral Act, 2006, are also restored back to the petition.
It is further ordered that the Tribunal should resume the hearing of the petition on its merit. And no order is made as to Costs.
Other Citations: (2009)LCN/3283(CA)
