Olakunle Oluomo V. Independent National Electoral Commission & Ors. (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/17/2007against the Ruling of the Tribunal Coram: Honourable Justices H.M. Tsammani, B.H. Ismail, C.U. Ukpe, U.M. Sadiq and C. O. Onyeabo, delivered on the 20th of October, 2007 Preliminary Objection brought by the 3rd and 10th Respondents. 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 was a candidate into the Ogun State House of Assembly for Ifo I Constituency of Ogun State, and at the end of the election, the 3rd Respondent was declared winner of the election by the 1st and 2nd Respondents”.
Aggrieved by the return of the 3rd Respondent at the said election, the Appellant filed a Petition No. EPT/OG/HA/17/2007 on the 11th of May, 2007, against the Respondents on the following grounds (in summary):
(a) That the 3rd 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 3rd Respondent at the election (for Ogun State House of Assembly Ifo I Constituency Seat), was invalid by reason 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 3rd Respondent for Ifo I Constituency of Ogun State Legislative House by the 1st and 2nd 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.
(b) An Order of the Tribunal that the 1st and 2ndRespondents should conduct fresh and new election in the said Constituency following the due process of the law.
The 3rd and 10th Respondents filed an application by way of Preliminary Objection dated and filed 24th September, 2007. The application is predicated on the following grounds:-
(1) The Petitioner did not specify his right to present the Petition.
(2) 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 IFO I State Constituency. (3) The Petition is incompetent and the Tribunal lacks jurisdiction.
(4) The Presiding Officers sued as parties to this Petition are merged or amalgamated together and not specified or pin-pointed to particular Polling Units.
(5) The petition is incompetent.
The Tribunal entered a considered Ruling on the application on the 20th of October, 2007 and struck out the entire petition. Dissatisfied with the decision of the Tribunal, the Appellant filed his Notice of appeal dated the 7th of November, 2007, but filed on the 8th of November, 2007.
When the appeal came up for hearing on the 5th of October, 2009, learned Counsel to the Appellant, A.A. Yesufa, adopted and relied on the Appellant’s Brief of Argument dated the 18th of February, 2008, but filed on the 19th of February, 2008. He also adopted and relied on the Appellant’s Reply Brief, filed on the 19th of September, 2008, but deemed filed on the 13th October, 2008. The 3rd and 10th Respondents’ Counsel also adopted and relied on their Brief of Argument, filed on the 13th of November, 2008, but deemed filed on the 22nd of April, 2009. He drew the attention of this Court to the Notice of Preliminary Objection filed on behalf of the 3rd and 10th Respondents, filed on the 14th of November, 2008.
I shall proceed to deal with the Notice of Preliminary Objection before delving into the merits of the appeal. Apart from filing a separate Notice of Preliminary Objection in compliance with the Court of Appeal Rules, the 3rd and 10th Respondents have incorporated arguments in respect thereof at Page 2 of their Brief of Argument, and have contended as follows:-
NOTICE OF PRELIMINARY OBJECTION:
The Notice of Preliminary Objection of the 3rd and 10th Respondents was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007. The Notice of preliminary Objection filed on the 14th November, 2008 is predicated on the following Grounds:-
“(1) That Grounds 1 and 2 purports to challenge a decision on priority of application which does not arise for the Ruling of the Tribunal given on the 20th of October, 2007.
(2) That Issue 2 in the Appellant’s Brief of Argument is based on the said Ground 1 which is incompetent”.
In arguing the said Grounds of the Objection as contained in the Brief of Argument of the 3rd and 10th Respondents, contained at Page2 thereto, the learned Counsel submitted that, the decision of the Tribunal which was given on the 20th of October, 2007, did not in’ any way, relate to the question of priority of application and neither did the Tribunal make a decision on the subject matter of the Appellant’s application challenging the validity of the 3rd and 10th Respondents’ Reply. In this circumstance, we submit that, the Ground 1 contained in the Appellant’s Notice of Appeal, is incompetent and that, Ground 2 of the said Notice of Appeal, is also incompetent to the extent that, the Appellant makes complaints against the validity of the 3ed and 10th Respondents’ Reply and the reliance thereon by the Tribunal.
On Issue 2
Having not appealed on the issue of priority, we submit that, Issue Two (2) in the Appellant’s Brief is incompetent and should be stuck out. In arguing the said issue 2, the Appellant proceeds to make submissions as to the validity, or otherwise of the 3rd and 10th Respondents’ Reply. We submit that, the Tribunal did not make any decision on the issue as to the competence, or otherwise of the Respondents Reply and that, the argument of Issue 2 in the Petitioner’s Brief at Paragraphs 4.17-4.26 therefore, is incompetent and should be struck out. The Appellant on his own part, did file a Reply to this Notice of Preliminary Objection.
Where there is conflict of motions as the case in this appeal, it is with the discretionary powers of the Tribunal or Court as the case may be, to decide which of the two conflicting motions to take first. It is the practice of Courts to take first, the one that may save the case, or the appeal, before considering the one that may terminate it.
However, the proper role of a Court of Appeal, where there is proper exercise of discretion is not to interfere with the discretion. To do so merely on the ground that the appellate Court would have exercised the discretion differently, is an assault on justice and not within the statutory powers of the Appeal Court. See:- Hadmor Productions Ltd. Vs. Hamilton (1983) A.C. 191 At 220, Dr. Sola Saraki Vs. N.A.8. Kotove (1990) 6 SCNJ 31 At 51, where it was held:-
“It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because, it would have exercised the discretion differently”. See also Solanke Vs. Ajibola (1968) 1 All N.L.R. 46 At 51.
I have seen Grounds 1 and 2 of the Appellant’s Notice of Appeal. It is directly challenging the exercise of the discretion by the Tribunal to hear and determine the Preliminary Objection of the 3rd and 10th Respondents and determine same, by deferring to hear the Appellant’s motion aimed at striking out the 3rd and 10th Respondents’ Reply to the Petition for incurable incompetence. Ground 2 of the Notice of Appeal also challenges the exercise discretion of the Tribunal allowing the 3rd and 10th Respondents to argue their Preliminary Objection to the Petition filed on 24th September, 2007, after been served with the Petition on the 13th June, 2007; and after having earlier raised objection to the Petition on a different ground successfully.
Issue No.2 in the Appellant’s Brief of Argument is to the effect that:-
“Whether in the light of the Supreme Court Judgment in Okafor Vs. 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 3rd and 10th 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”.
It is very clear that, Grounds 1 and 2 of the Appellant’s Notice of Appeal and Issue No. 2 of his Brief of Argument, directly challenges the exercise of discretion by the Tribunal. It is already settled by the Supreme Court in the authorities cited earlier that, it is not the duty of the Court of Appeal to interfere with the exercise of discretion of High Court or Tribunal as in this case and this Court abide by those decisions. The exercise of the discretion by the Tribunal therefore remains. The Notice of Preliminary Objection of the 3rd and 10th Respondents brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, filed on the 14th of November, 2008, is hereby granted. This Court makes an Order striking out Grounds 1 and 2 of the Appellant’s Notice of Appeal and Issue No.2 of the Appellant’s Brief of Argument, including all arguments proffered in support of the said Issue No.2.
Having struck out Grounds 1 and 2 of the Appellant’s Notice of Appeal, and Issue No. 2 of his Brief of Argument, I shall now go on to consider the merit of this appeal. The Learned Counsel to the Appellant filed on his behalf, Appellant’s Brief of Argument on the 19th of February, 2008, proposed for the determination of the appeal are as follows:-
(1) Issue One – whether the Learned Justices of the Tribunal were right when they permitted the 3rd and 10th 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 1, 3 and 4).
(2) On Issue Three – whether in the light of the provisions of Section 144(1)(a) of the Electoral Act, 2006 and the facts contained in the Petition, admitted in the Reply of the Respondents and Petitioner’s frontloaded 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 5).
(3) 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 cases of fundamentally incurable defects or incompetence (Ground 6).
(4) Whether the Learned Justices of the Tribunal had jurisdiction to entertain the issue of the qualification of the 1st Petitioner to contest in the election under Section 106 of the Constitution of the Federal Republic of Nigeria, 1999, when the Petitioner was not the winner of the election sought to be questioned in the Petition (Ground 7).
Learned Counsel to the 3rd and 10th Respondents formulated Two (2) Issues from the Grounds of Appeal as follows:-
(1) Whether pursuant to Paragraph49 (2) of the First Schedule to the Electoral Act, 2006, the Respondents’ Objection was taken within reasonable time.
(2) Whether the Petitioner pleaded material facts in his Petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same?
In arguing Issue One (1) on taking several further steps by the Respondents, the Learned Counsel to the Appellant submitted that, the competence of an Election Petition on ground of irregularity can always be challenged by a Respondent, provided the Respondent acts timeously upon becoming aware of the defect, and before taking any further steps in the proceedings. See:- Paragraph 49(1) and (2) of the First Schedule to the Electoral Act, 2006. Learned Counsel to the Appellant further submitted that, the Tribunal had equated alleged failure to supply in the pleading some particulars of fact relied upon as amounting to ouster of jurisdiction of the Tribunal. See:- Paragraph 17(1) and (2) of the First Schedule to the Electoral Act, 2006. Also, see:- the effect of failure to request for further particulars under Analogus Civil Procedure Rules. See:- A.G. Leventis (Nig.) Plc. Vs. Akpu (2007) 17 NWLR (pt. 1063) 416 At 435 Paragraphs D-E.
Learned Counsel to the Appellant further submitted 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 now settled approach of the Courts these days, is to roll over such objection till the end of trial where a case is one deserving of 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 Vs. Darive (2007) 8 NWLR (pt. 1036) 332. At 406; Also Inakoju Vs. Adeleke (2007) 4 NWLR (Pt. 1025J 423.
Learned Counsel to the Appellant further submitted that the injunction that a Court should determine an objection to jurisdiction first, does not mean that, trial on the merit must first be put in abeyance. All that is intended is that, whenever the Court comes to a final decision, it must first resolve the issue of jurisdiction and then proceed to determine the merit of the case as well, especially a trial Court which must express its full opinion on matters agitated before it, so as to give the appellate Court the benefit of its opinion in rehearing the matter in the event of an appeal. See:- Senate President Vs.Nzeribe (2004) 9 NWLR(pt. 878) 251; also Paragraph 49(2)(5) of the First Schedule to the Electoral Act, 2006.
Learned Counsel to the Appellant further submitted 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 are taken by the party complaining, cannot be entertained as a preliminary issue before trial. They are usually governed by their own special rules, as against the normal rules of Court. See:- Orubu Vs. NEC (1988) 5 NWLR (Pt. 94) 323; Ogu Vs. Ekweremadu ({2006) 1 NWLR (Pt. 961) 225 At 277. Learned Counsel to the Appellant further submitted that, the Respondents did not ask for leave to bring the application and did not show any extreme circumstances why the application should be heard. In this case, what the Tribunal did, was to simply ignore the provision of the Practice Directions. This the Tribunal did, despite the fact that it was bound to follow same. The Tribunal was bound to guide itself by the provisions of Paragraph 3(7)(a) and (b) of the Election Tribunal and Court Practice Directions No. 1 of 2007 in deciding the issues raised by the Respondents, by looking at the entire pleadings to determine if the issue was fit for determination without trial. The raising of the 1st Respondent’s Preliminary Objection in their Reply, was in compliance with Paragraph 49(2) of the First Schedule to the Electoral Act, 2006.
Learned Counsel to the Appellant further submitted that the admission by the Respondents that Petitioner was a candidate at the election totally forecloses them from complaining about failure to state these particulars in the Petition. What they were entitled to ask for, was Further and Better Particulars of the facts by which Petitioner was (admittedly) a candidate at the election. See:- Paragraph 17 (1) (2) of the First Schedule to the Electoral Act, 2006. Also, Paragraph 12(1) of the First Schedule to the Act.
On Issues Three (3) and Four (4) which they are jointly argued together, the Learned Counsel to the Appellant submitted that, the Tribunal approached the issue of a Petitioner’s locus standi from a most restrictive perspective. Under the 2006 Electoral Act, the categories of persons who may present an Election Petition, are clearly set out in Section 144(1) of the Electoral Act, 2006. See:- Okonkwo Vs. Ngige (2006) 8 NWLR (pt. 981) 119 At 136. Learned Counsel to the Appellant further submitted that, the Tribunal was bound to follow any decision of this Court interpreting the equivalent of Section 144(1) of the Electoral Act, 2006 under the doctrine of stare decisis, where words or expressions have been legally or judicially defined their ordinary meaning will give way to their legally defined meaning. See:- ACME Builders Ltd. Vs. Kaduna State Water Board & Another (1999) 2 NWLR (pt. 590) 288 At 313 Paragraphs D-E, Also, Wilson Vs. Attorney General (Bendel State). & Others (1985) 1 NWLR (pt. 4) 572 at 605.
Learned Counsel to the Appellant submitted further that, once a Petitioner has pleaded that he was a candidate at an election, he has disclosed sufficient locus standi to present an Election Petition. See:- UBA Vs. Ukachukwu (2004) 10 NWLR (pt. 881) 224 At 2SS; Waziri Vs. Dambovi (1999) NWLR (pt. S98) 239 at 246-247; . Rimi Vs. INEC (2004) All FWLR (pt. 210) 1312; P.P.A. Vs. Saraki (2007) 17 NWLR (pt. 1064) 4S3 At 499. Learned Counsel to the Appellant submitted further that, a contestant who participated in an election scored votes and admitted by Respondents in their Reply as being a candidate at the said election cannot be rightly held not to be “a competent party before the Tribunal”. It is therefore a misconception to impose on the Petitioner the duty of pleading the name of the party who sponsored him. See:- Attorney General (Abia State) Vs. Attorney General of Federation (2002) 6 NWLR (pt. 763) 264. Learned Counsel to the Appellant further submitted on the effect of Section 106 of the Constitution of the Federal Republic of Nigeria, relied upon by the Respondents, the Supreme Court has held that unless the Electoral Act specifically requires it. It is not proper to plead issues bothering on the constitution in Election Petition. See:- Obasanjo Vs. Yusuf (2004) 9 NWLR (pt. 877) 144 at 222.
On Issue Five (5), Learned Counsel to the Appellant submitted that the question whether a candidate at an election not being the one returned as winner is qualified to contest, is outside the jurisdiction of an Election Tribunal. See:- Section 32(4) of the Electoral Act, 2006. Learned Counsel to the Appellant further submitted that Section 32(4) of the Electoral Act, 2006, confers locus standi to challenge qualification of a candidate to contest an election within very narrow limited confines. It entitles any person who has reasonable ground to believe that, any information given by a candidate in the affidavit is false to file a suit at the High Court. Any other ground of disqualification outside a false affidavit must be ventilated by a person with a locus standi to challenge the election, and at the Election Tribunal. See:- Section 144 of the Electoral Act, 2006. Learned Counsel to the Appellant further submitted that, an intervening disqualifying event after nomination, cannot therefore be made subject of pre-election litigation by just any person. It must be taken up as a ground of Petition under Section 145. Hence, Section 145(1) (a) provides for a candidate not being qualified at the time of election and not at the time of nomination.
Learned Counsel to the Appellant further submitted that, these matters of nomination were wrongly held by the Tribunal as constituting the mandatory facts which a Petitioner must disclose in his Petition under Paragraph 4(1) of the First Schedule to the Electoral Act, 2006. Paragraph 4 does not require statement of particulars; it requires specification of facts in support of the Petition. Learned Counsel to the Appellant furthered his submission that in the first place, the Respondents did not apply for particulars, instead, the Respondents admitted that Petitioner was a candidate at the election. The Petitioner pleaded the result of the election and gave notice that, he shall be bound on the result declared by INEC pursuant to the election. Learned Counsel to the Appellant finally submitted and urge this Court to hold that, a family reading of the two legged submissions developed under this Issue the Tribunal acted without jurisdiction in pronouncing on the qualification or non-qualification of the 1st Petitioner to contest the election. The issue before the Tribunal was defined by the Petition and not the Respondents’ Reply thereto. Resorting to Section 106 of the Constitution of the Federal Republic of Nigeria, 1999 by the tribunal was unnecessary.
The Learned Counsel to the 3rd and 10th Respondents in reply, submitted that the general principle is that, a Court or Tribunal faced with an application, challenging the competence or jurisdiction or proceedings before it, has a duty to hear the objection FIRST before taking further steps in the proceedings. However, in appropriate circumstances, the Court may on application of a party, exercise its discretion to take the objection at the trial of the suit. See:- Waziri Vs. Danbovi (1999) 4 NWLR (pt. 598) 239 At 246; Also, A.N.P.P. Vs. R.O.A.S.S.D. (2005) 6 NWLR Page 149 At 170-171. Learned Counsel to the 3rd and 10th Respondents further submitted that, Paragraph 49(5) of the First Schedule to the Electoral Act, 2006, puts the duty of the Tribunal in these circumstances beyond doubt. It imposes on the Tribunal a duty to hear and determine the objection before any further steps in the proceedings.
Learned Counsel to the 3rd and 10th Respondents further submitted on what amounts to taking steps, the law is now settled that, a Respondent will not be prevented from challenging a Petition pursuant to Paragraph 49(2) unless hearing of the Petition has commenced. See:- Richi Vs. Haladu (2003) 14 NWLR (pt. 841) At 624; Buhari Vs. Obasanjo (2003) 17 NWLR (pt. 850) At 485. Learned Counsel to the 3rd and 10th Respondents further submitted that, the Respondents in this case, filed their objection within reasonable time since the application was filed at the pre-trial stage, before hearing commenced. Learned Counsel to the 3rd and 10th Respondents further submitted that, Section 147(3) of the Electoral Act supersedes Paragraph 49(2) of the First Schedule to the Act, because, the rules of procedure for Election Petition are subsidiary legislation made pursuant to the Electoral Act. 2006. See:- Nwanezie Vs. Idris (1993) 3 NWLR 1 At 16; Also, Buhari Vs. Obasanjo (Supra).
Learned Counsel to the 3rd and 10th Respondents further submitted that the paragraph of the Petition (even if admitted) incurably fails to comply with the mandatory provisions of Section 106 of the Constitution and Section 144 of the Electoral Act; and also Paragraph 4(1), (b) of the First Schedule. This objection challenges the locus standi of the Petitioner to institute the Petition and as such that, the Tribunal had no jurisdiction to entertain the Petition. Also, Paragraph 49(2) of the First Schedule to the Act is inapplicable to prevent a Respondent from raising an objection to jurisdiction at any stage of the proceedings.
Learned Counsel to the 3rd and 10th Respondents further submitted that, the requirement of locus standi is mandatory, because, the judicial powers of the Court are constitutionally limited to matters in which parties have it. In determining the issue of locus standi, the Court must therefore constantly bear in mind that its judicial powers are being invoked and matters in which such powers can be extended are, as provided by Section 6(b) of the Constitution. Therefore, where a Plaintiff has no locus standi, the Court has no jurisdiction to entertain his action. See:- Olor/ode Vs. Oyebi (1984) 5 SC 1. Also, RTEAN Vs, NURTW (192) 2 NWLR (pt. 381) at 391. Learned Counsel to the 3rd and 10th Respondents on Issue Two (2), submitted that, the Petitioner’s right to present a Petition, is not a common law right, but is a right created by statute. This right is established by compliance with the provision of Section 106 of the Constitution and Section 144 of the Electoral Act and Paragraph 4(1), (b) of the First Schedule.
Learned Counsel to the 3rd and 10th Respondents further submitted that, to demonstrate his locus standi as determined by the combined reading of Paragraph 4(1) and Section 106 of the Constitution, the facts set out in the Section must be clearly pleaded, failing which the Petition is incompetent. Clearly, if the Petitioner fails to plead this qualification, he has failed to specify his right to present the Petition. The Tribunal was therefore correct in its judgment when it held that, the Appellant failed to specify his right to present the Petition on the account of his failure to plead his political party in compliance with the Schedule to the Act, which requires him to specify his right to present Petition. In other words, he must amplify on the capacity which he relies on to bring the Petition. He cannot barely repeat Section 144(1), (a) of the Electoral Act, 2006 and no more. See:- Egolum Vs. Obasanjo (1999) 7 NWLR 355. Learned Counsel to the 3rd and 10th Respondents finally submitted that, reading the provisions above, it becomes clear that, for a Petitioner to have the right to present a Petition, he must qualify to be his party’s candidate for the election and then the candidate that contested the election on the party’s platform. This is particularly when the provisions of Section 221 of the Constitution, which states that, only a political party can canvass for votes which are taken into consideration. In the light of the foregoing, this Court is urged to resolve this Issue against the Appellant.
The Appellant’s Counsel filed a Reply Brief which was deemed filed on the 13th of October, 2008. He submitted that, this Court has now put it beyond any doubt that, the provisions of Section 144(1) must be read in conjunction with the provisions of Section 145(1), (d) of the Electoral Act, 2006, to discover that, a person who was validly nominated by a political party to contest in an election, but was unlawfully excluded, is a candidate under Section 144(1), (a); and has the locus standi to present an Election Petition. See:- P.P.A. Vs. Saraki (2007) 17 NWLR (Pt. 1064) 453. Learned Counsel to the Appellant further submitted that, the lower Tribunal purportedly based its decision on the Supreme Court’s Judgment in Egolum Vs. Obasanjo (1999) 7 NWLR (pt. 611) At 3SS, but the Supreme Court in that case said, its decision in that appeal, was based on the fact that the Appellant in that appeal, was not a candidate who contested the election. Learned Counsel to the Appellant further submitted that, the Appellant whose Petition shows that, he not only was a candidate, but he actually contested in the election; and votes were recorded in his favour, cannot rightly be said not to have an interest in the Petition. Wherein he had made copious averments to the effect that the declaration of the 3rd Respondent as a duly elected Member of the House of Assembly for Ifo I Constituency of Ogun State, was contrary to the provisions of the Electoral Act, 2006. See:- Senator Ibikunle Amosun Vs. INEC & 259 Others (Unreported) in Appeal No. CA/I/EPT/GOV/10/2007
Learned Counsel to the Appellant submitted further that, the resolution of this appeal is left to only One Issue, whether or not the Appellant who contested the election, has no locus standi to present the Petition before the lower Tribunal. See:- Seven-Up Bottling Company Ltd. Vs. Abisola Company Ltd. (2001) 13 NWLR (pt. 730) Page 469 At 493-494, 514 And 516.; Anvaduba Vs. N.R.T.C. Ltd. (1992) 5 NWLR (pt. 243) Page 535 At 564; Ishava Bamaivi Vs. State ¢ (2001) 8 NWLR (Pt. 715) Page 270 At 285, 286, 294-295. Learned Counsel to the Appellant finally submitted that, even, if the Issues 1 and 3 as formulated in the Respondents’ Brief are resolved in favour of the Respondents, the resolution of their Issue 2 and Appellant’s Issues 3, 4
and 5 raised in the appeal, should still succeed.
I have carefully considered the arguments proffered by all parties in this appeal. I tend to be guided by the Issues as formulated by the Appellant in his Brief of Argument.
On Issue One (1) of the Appellant’s Brief of Argument, whether the Learned Justices were right when they permitted the 3rd and 10th Respondents to move Court to take their second motion after taking several further steps in the proceeding. It is quite instructive to note that, the Appellant in his Reply Brief to the 3rd and 10th Respondents’ brief, deemed filed on the 13/10/2008, did state thus:-
“so that even if the issue objections 1 and 3 as formulated in the Respondents’ Brief are resolved in favour of the Respondents, the resolution of their Issue 2 and Applicant’s Issues 3, 4 and 5, the appeal should succeed”.
The above statement cannot be taken as directly conceding the Issues to the Respondents by the Appellant. No doubt however, the statement has whittled down the opposing earlier raised by the Appellant that the Tribunal was wrong to have entertained the second motion of the 3rd and 10th Respondents after the latter had taken several fresh steps in the proceeding.
As to what amount to taking fresh steps, now, it is settled law that, a Respondent will not be prevented from challenging a Petition pursuant to Paragraph 49(2), unless hearing of the Petition has commenced. This Issue has since been settled in several decided authorities in A.N.P.P. Vs. R.O.A.S.S.D. (2005) 6 NWLR Page 149 at 170-171. I. T. Muhammad, JCA, as he then was, now JSC, decided that, hearing was the cut off stage under Paragraph 49(2) for taking application challenging the Petition. At Page 488 of the Report, he said:-
“As the Respondent’s Notices of Preliminary Objection were filed and served before the Petition proceeded to hearing, they were indeed filed within reasonable time as required by Paragraph 49(2) of the First Schedule to the Electoral Act”.
Again, this Court in Hon. Saba Sichi & Another Vs. Ahmed Haladu & Others (2003) Volume 1 E.P.R. 587 At 601-605stated:- “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 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 hearing has commenced or is about to commence.”
At Page 599 of the same Report, it was stated 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”.
I have no quarrel with the decision of the Tribunal in their Ruling as contained at Page 249 of the Records that:- “In the instant case, the Petitioners submitted that Applicants have taken steps, those steps enumerated to our minds, are not supportable of waiver, they are for inspection and use of forensic analysis only at the instance of the Petitioner to enable him prepare for the pre-hearing conferencing only. We have not even reached the stage of issuance of report to know the case for the parties…………. ”
The long and short determinant in this Issue is that, at the time the Tribunal took the second motion for Preliminary objection raised by the 3rd and 10th Respondents, it was brought within a reasonable time in accordance with the provision of Paragraph 49 (2) of the First Schedule to the Electoral Act, 2006; and the Tribunal acted rightly by entertaining the Objection at the time it did. Issue NO.1 is resolved in favour of the 3rd and 10th Respondents.
Issue NO.2 in the Appellant’s Brief of Argument had earlier on been struck out by this Court at the very early stage when the Notice of Preliminary Objection of the 3rd and 10th Respondents was heard and determined by this Court.
Issue NO.3 in the Appellant’s Brief of Argument is to effect of Section 144(1)(a) of the Electoral Act, 2006, whether it was correct as held by the Tribunal, that the 1st Petitioner/Appellant had not disclosed his locus standi to present the Petition. Also, Issue NO.4 whether the Tribunal had not denied the Appellant the right to fair hearing by striking out the Petition. The Two (2) Issues were jointly argued in the Appellant’s Brief of Argument. The central issue that resulted into the Tribunal’s action, when moved by the Respondents to strike out the Appellant’s Petition was Paragraph 1 of the Petition wherein the Appellant states at Page 11 of the Records as follows:-
“Your Petitioner, Olakunle Oluomo, is a person who voted, had right to vote, was a candidate, had the right to be returned or elected at the above election”.
The argument put up by the 3rd and 10th Respondents before the Tribunal, which prompted the Tribunal to strike out the entire Petition, was again reproduced at Page 13 of the 3rd and 10th Respondents’ Brief of Argument, it says:-
“To demonstrate his locus standi as determined by a combined reading of Paragraph 4 (1) of the First Schedule to Electoral Act and Section 106 of the Constitution of the Federal Republic of Nigeria, 1999, the facts set out in the Section must be clearly pleaded failing which the Petition is incompetent. Clearly, If he fails to plead this qualification, he has failed to specify his right to present the Petition”.
The Tribunal at Page 250 of the Records in its Ruling held:-
“Appellant failed to specify his right to present the Petition on the account of his failure to plead his political party in compliance with the Schedule to the Act which requires him to “specify” his right to present the Election Petition. In other words, he must amplify on the capacity which he relies on to bring the Petition. He cannot barely repeat. Section 144(1)(a) of the Electoral Act, 2006 and no more. See:- Egolum Vs. Obasanjo (1999) 7 NWLR (pt. 611) At 355″.
The pertinent point to determine is, who is qualified to present an Election Petition under the Electoral Act, 2006. Section 144 (1) of the Electoral Act, 2006 provides:-
“An election may be presented by one or more of the following persons:-
(a) a candidate in an election;
(b) a political party which participated in the said election”.
The said provision above, had been given a judicial interpretation by this Court. In Okwonkwo Vs. Ngige (2006) a NWLR (Pt. gal) 119 At 136, Adekeye, JCA, as she then was now (JSC) held:-
“Section 113(1) of the (Electoral Act, 2002) which equivalent to Section 144(1) of the (Electoral Act, 2006) provides for persons who may present a Petition. It is either one or both of:-
(a) A candidate at an election,
(b) A political party which participated at the election”.
I cannot see the amplification the lower Tribunal is looking for from the Appellant, after stating he was a candidate at the election. As regards the requirement of Section 106 (d) of the Constitution of the Federal Republic of Nigeria, 1999, for a person to be qualified for an election as a Member of House of Assembly, Section 106 (d) provides:-
“He is a member of a political party and is sponsored by that party”.
Although, neither the Appellant nor the Respondents pleaded Form EC8E which is the result sheet of the election from INEC, probably because being a “Candidate” at the election, was never challenged by the Respondents. Form EC8E, the result sheet from INEC, is a public record. By Section 73 of the Evidence Act, “Fact judicially noticeable need not be proved. No fact which the Court must take judicial notice need be proved”.
No doubt, both the Appellant and the 3rd Respondents can only satisfy the requirement of Section 144 (1), (a) of the Electoral Act, 2006; only by the content of Form EC8E which is the result sheet from INEC. Therein in Form EC8E, is the name of each candidate, his political party and his scores at the election. No proof is therefore needed at this stage of the election and the subsequent petition as to the sponsorship of their political parties. Both the Court and Tribunal must take judicial notice of Form EC8E. Therefore, the Appellant, who deposed to in his Petition as a candidate, is not in any breach of Section 106 (d) of the Constitution. This dangerous position which the Tribunal took, is in defiance with the Supreme Court decision in Obasanjo Vs. Yusuf (2004) 9 NWLR (pt. 877) 144 At 222, wherein it is stated:-
“Unless the Electoral Act specifically requires it, it is not proper to plead issues bothering on the Constitution in an Election Petition”.
On Paragraph 4(1), (b) of the First Schedule to Electoral Act, 2006 which requires the Appellant (as Petitioner) to specify his right to present the Petition, Paragraph 1 of the Appellant’s Petition is all encompassing. It states again:-
“Your Petitioner, Olakunle Oluomo, is a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the above election”.
I cannot see what right is needed to be specified as required by Paragraph 4(1), (b) of the First Schedule to the Electoral Act to present his Petition that the Appellant has not specified.
From the above therefore, the lower Tribunal refused to hear the Petition of the Applicant on no account provided for by our laws; and this occasioned great hardships to the Appellant. This Court in view of all that stated above, has resolved both Issues 3 and 4 of the Appellant’s Brief of Argument in favour of the Appellant against the 3rd and 10th Respondents. On the 5th Issue, whether the Tribunal had jurisdiction to entertain the issue of qualification of the 1st Petitioner to contest the election under Section 106 of the Constitution of the Federal Republic of Nigeria, 1999, when the Petitioner was not the winner of the election sought to be questioned in the Petition. Essentially, the issue of qualification to contest an election, is challenged under Section 32(4) of the Electoral Act, 2006 which provides:-
“Any person who has reasonable grounds to believe that any information given by a Candidate in the Affidavit is false may file a Suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the Affidavit is false”.
In construction of statute or instrument, the law is that, every word or clause in an enactment, must be read and construed together not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute. See:- Oyeyemi Vs. Commissioner for Local Govt. (Kwara State) (1992) 2 SCNJ 266 At 280; Astra Industry Nigeria Limited Vs. NBCI (1998) 3 SCNJ 97 at 115.
To my mind, the issue of qualification or not to contest any election, all vital information in respect thereof, must be contained in the Affidavit submitted by the candidate for screening of his eligibility. Such information, if challenged by the provisions of Section 32(4) of the Electoral Act, can only be filed at the State High Court or Federal High Court. That is clearly outside the jurisdiction of the Election Tribunal.
The provision of Section 145(1), (a) of the Electoral Act, 2006, which provides an election may be questioned on any of the following grounds:-
(a) ” that a person whose election is questioned was, at the time of the election not qualified to contest the election.
(b) that the election was invalid by reason of corrupt practices or nor compliance with the provision of this Act.
(c) that the Respondent was not duly elected by majority of lawful votes cast at the election, or (d) that the Petitioner or its candidate was validly nominated, but was unlawfully excluded from the election.”
This is clear, not at the time of nomination, sponsorship by a political party no doubt is a nomination issue, which is pre-election and outside the jurisdiction of the Tribunal. Such other Issues as age, citizen of Nigeria, are all pre-election issues. The bane of contention in respect of this Issue is the sponsorship of the Appellant by his political party which is an issue for nomination clearly outside the jurisdiction of the Tribunal. The opinion of this Court is that, the Appellant, having been allowed to have contested the election in the first place, has satisfied the requirements of Section 32(1), (2) of the Electoral Act, 2006. On the whole therefore, the lower Tribunal had no jurisdiction to entertain the issue of qualification of the Petitioner to contest the said election. Again, Issue Five (5) is resolved in favour of the Appellant against the 3rd and 10th Respondents.
On the whole, this Court will say that, the lower Tribunal ought to have paid attention to substantial justice than mere form, because, justice can only be done if the substance of the matter is examined. Reliance on technicalities, leads to injustice. Adhering strictly to technicalities, is tantamount to sacrificing justice on the altar of technicalities.
In the final analysis, this appeal is allowed. The Ruing of the National Assembly Governorship and Legislative Houses Election Petition Tribunal, Ogun State, in Suit No. EPT/OG/HA/7/2007,delivered on the 20th day of October, 2007 by Coram Justices H. M. Tsammani, B. H. Ismail, C. U. Ikpe, U. M. Sadiq and C.O. Onyeabo, particularly delivered by B.H. Ismail, is hereby set aside in its entirety.
It is further ordered that, the Tribunal should resume the hearing of this Petition on its merit.
There shall be cost of N30,000.00 in favour of the Appellant against the 3rd and 10th Respondents.
Other Citations: (2009)LCN/3450(CA)
