Action Congress (AC) & Anor V. Kenan Y. Kaigama & Ors (2007)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA, J.C.A.
The first appellant is a registered political party which sponsored the 2nd appellant in the 14th April, 2007 general election to the Taraba State House of Assembly for Bali 1 Constituency. The 2nd appellant contested the election with amongst others the 1st respondent, at the end of which the 3rd respondent who conducted the election declared the 1st respondent as the winner and returned him as the duly elected member representing Bali 1 Constituency in the Taraba State House of Assembly.
The appellant being dissatisfied with the outcome of the election filed a petition before the Governorship/Legislative Houses Election Petition Tribunal, Jalingo, Taraba State on the following grounds:
“(1) Your petitioner states that the 1st respondent is not qualified to contest the election of 14th April, 2007 on grounds of educational qualification and age.
(2) Your petitioner states also and in addition to or in alternative to the above that the election of 14/4/2007 in the area set out in this petition was characterized by irregularities and electoral malpractice and the return of 1st respondent is undue (sic).”
On being served with the petition the 2 sets of respondents filed motions challenging the competence of the petition and the jurisdiction of the lower tribunal to entertain same, on the grounds that;
(1) The petition dated 14th May, 2007 was neither signed by Caleb K. Atiman, Esq (the solicitor named at the foot of the petition) nor by any of the petitioners;
(2) The petition dated 14th May, 2007 has no occupier in the address for service on the petitioners;
(3) The tribunal has no jurisdiction to hear and determine the allegation raised in paragraphs 16, 17, 18, 19 and 23(a) and (c) of the petition as they relate to information contained in the 3rd respondent’s Form CF 001;
(4) The tribunal cannot entertain evidence in respect of the allegation raised in paragraphs 8, 9, 10, 11, 12, 13, 14, 15 and 21 of the petition as they raised allegation against presiding officers that have not been joined in the petition.”
After listening and considering the arguments of counsel on the above application, the lower tribunal in a considered ruling delivered on the 13/7/07, struck out the petition on the ground that the petition was not properly initiated before it having not been signed by the solicitor whose name appeared at the foot of the petition.
The petitioner, now appellant being dissatisfied with the said ruling has appealed to this court on 3 grounds of appeal. Parties filed and exchanged their briefs of argument and at the hearing of this appeal they adopted same.
In his brief, the appellant raised the following issues for the determination of this appeal:
- Whether the tribunal below was right to have declined jurisdiction to adjudicate on the appellants’ petition No.EPT/TR/SHA/06/2007 dated and filed on the 14th May, 2007 by striking out same on the ground that the said petition was not signed by the solicitor whose name appeared at the foot of the petition.
- Whether it was proper for the tribunal below to have struck out the 10th respondent’s name from the petition on the ground that he is a non-juristic person and thus not properly before the tribunal.
The two sets of respondents i.e. 1st respondent and 2nd – 10th respondents adopted the issues formulated by the appellant and based their arguments on them.
The 1st respondent has however, filed a notice of preliminary objection to the appeal and the arguments on the preliminary objection are contained in this brief of argument. The appellant has however, not filed any reply to the preliminary objection. I will in the circumstances first consider the preliminary objection on its merit.
The 1st respondent submits these 2 issues for the determination of the preliminary objection.
- Whether the 7th and the 10th respondents in this appeal were parties in the petition before the lower tribunal; and
- Whether the grounds of appeal contained in the notice of appeal filed by the appellants before this Honourable Court are competent.
On the 1st issue above, the 1st respondent questions the propriety of the 7th and 10th respondents as parties in this appeal. He points out that at page one of the record of proceedings of the lower tribunal, the 7th respondent was “the collation officer, Takala Fuja Ward” and the 10th respondent was the ‘Presiding Officer Unit 001 in Maihula Ward (for himself and on behalf of himself and all other Presiding Officers in Maihula Ward).’ That in the notice of appeal before this court the 7th and 10th respondents are presented respectively as ‘the Collation Officer, Takalafiya Ward’ and the Presiding Officer for Unit 001 in Maihula Ward. He pose the question whether the two sets of parties can be said to be the same and answered in the negative. He maintained that there is nowhere in the proceedings where an application was made to effect any change of the names of the parties before this court. Relying on and citing the case of Omokhodion v. F.R.N. (No.2) (2005) 10 NWLR (Pt. 934) 581 at 594, learned counsel for the 1st respondent submits that the 7th and 10th respondents were not parties before the lower tribunal they can therefore not become parties before this court. That the appellant is not at liberty to substitute names at will, and this court should not allow him to do so, he urged us to in the circumstances to strike out the names of the 7th and 10th respondents as they cannot be said to be parties in this appeal.
I have looked closely at the names of the 7th and 10th respondents both at the lower tribunal and before this court. The difference in the names of the 7th respondent in the lower tribunal and in this court is the spelling of ‘Takalafuja’ and ‘Takalafiya’ respectively; to my mind these are everyday errors and spelling mistakes made inadvertently by typist. They are errors which can be voided and are curable. Similarly, failure to put “for himself and on behalf of all other presiding officers in Maihula Ward” may be an inadvertent omission.
These omission and typographical errors are curable and they don’t go to the root and substance of this appeal. On this ground, I consider the objection petty and hereby overrule it.
The other grounds of objection attacks the grounds of appeal, in that grounds 1 and 2 are not directed at the ratio decidendi that they are rather attacking the obiter dictum of the lower tribunal. And that ground 3 was not in compliance with the provisions of Order 6 rule 2(2) of the Court of Appeal Rules, as the ground is complaining of error of law and fact at the same time.
Grounds of appeal are generally complaints by a party against the decision of a lower court to an appellate court and its purpose is to give notice to the other party of what he is to meet at the appellate court. Once that intention is conveyed then the purpose is achieved.
In its quest for justice, the appellate court should not be over burdened by technicalities, its aim should be the attainment of the ends of justice. See BP (West Africa) Ltd. v. Allen (1962) 2 SCNLR 388; Bakare v. State (1968) 1All NLR 364; Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27.
In the instant appeal, the respondents were not misled by the alleged incompetent grounds and the issue distilled from them. They knew what the appellants’ complaints before this court were and they responded to them appropriately.
I also find no substance on these grounds of objection and accordingly overrule and strike them out.
In the appeal, the appellant submits on issue one that the lower tribunal was wrong to have relied on the case of Nwancho v. Elem (2004) All FWLR (Pt. 225) 93 to strike out the appellants’ petition before it for any reason, let alone for the reason that it has not been signed by the petitioner whose name appeared at the foot of the petition. That the tribunal below ought to have distinguished the issues of fact between the case of Elem (supra) and the appellants’ petition by holding that the former case is inapplicable to this case.
That in the case at hand, the petition was signed by a named and identified solicitor who did so for and on behalf of another named and identified solicitor both of whom are in the same law firm. That, that was in complete compliance to the provision of paragraph 4(3)(b) of the First Schedule to the Electoral Act, 2006. The appellant further submits that the lower tribunal before arriving at its decision ought to have considered the affidavit evidence before it that the counsel who signed the petition for the named counsel in the petition is also a counsel in chambers of the appellants’ solicitors, pointing out that there is nothing for a solicitor in a law firm to sign for and on behalf of another named solicitor particularly if the named solicitor was not available to sign the petition. He maintains that to hold otherwise will amount to sanctioning of balkanising a firm of solicitors into solicitors that are separate and independent of one another in the discharge of the firm’s duties to its clients. That was not the intention of the provisions of paragraph 4(3)(b) of the First Schedule to the Electoral Act, 2006. He urged us to allow the appeal on this issue.
The 1st respondent in his brief of argument submits relying on Ilobi v. Uzoegwu (2004) 19 WRN 93; and Orizu v. Uzoegwu (1999) 6 NWLR (Pt. 605) 32 that the presentation of an election petition is governed by the provision of the Electoral Act, 2006 and to claim a relief within the provisions of the Act, a petitioner must strictly comply with its provision. That in the instant petition, the said petition was signed by another person for and on behalf of the named solicitor. That this was not in compliance with the provisions of the Electoral Act, 2006 which requires that a petition must be signed either by the petitioner or a named solicitor and that failure by either the petitioner or his counsel to sign invalidates the petition and renders it incompetent and affects the jurisdiction of the lower tribunal to entertain the petition.
The 1st respondent maintains that Elem’s case (supra) is on all fours with the present case and urged us to discountenance the arguments of appellant in trying to distinguish the two cases and urged us to dismiss the appeal as lacking in merit and affirm the decision of the lower tribunal.
The 2nd to the 10th respondents in their joint brief of argument argued on the same lines as the 1st respondent and further submits that the provisions of paragraph 4(3)(b) of the First Schedule to the Electoral Act, 2006 are mandatory and the lower tribunal cannot be faulted for striking out the petition for being incompetent.
Counsel further submits that an election petition when filed must speak for itself and no extraneous document which is not part of it should be imported into it. That the affidavit evidence heavily relied upon by the appellant is not part of the petition and cannot be used to cure any defect in the petition nor can it be used as a supplementary document.
He also maintains that Elem’s case is applicable to the present case and urged us to dismiss the appeal.
For ease of reference, I am reproducing hereunder part of the ruling of the trial tribunal which gave rise to this appeal.
“Against the background of the authorities extensively quoted above, the petitioner’s petition, having not been signed by the solicitor whose name appeared at the foot of the petition, is not properly initiated before this tribunal. We hereby decline jurisdiction to adjudicate same. Consequently, the petitioners’ petition No. EPT/TR/SHA/06/2007 dated and filed on 14/5/07 is struck out.”
The reason for striking out the appeal, as can be seen from the above finding, is that the petition was not properly initiated before the tribunal as it was signed by the petitioner whose name appeared at the foot of the petition.
Now, what does the Electoral Act, 2006 say as to signing of an election petition. The answer is to be found at paragraph 4(3)(b) of the First Schedule to the Electoral Act, 2006 which provides: “(3) The election petition shall further- (a)…
(b) be signed by the petitioner or all the petitioners or by the solicitor, if any named at the foot of the election petition.”
In the interpretation of an enactment the court have always been enjoined to adopt the literal mode of construction particularly where the words of a statute are clear and unambiguous, they should be construed as they are, giving their ordinary plain meaning. – See I.B.W.A Ltd. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633 at 665-666; Emesim v. Nwachukwu (1999) 6 NWLR (Pt. 605) 154.
In interpreting the above provision, the word ‘shall’ has been used by the framers of that law, the presumption is that the provision must be complied with mandatorily and it gives no room for any other meaning or interpretation.
This court has had occasion to interpret the word ‘shall’ see Keke v. Kalba (2004) All FWLR (Pt.221) 1447 at 1502 per Nzeako, JCA.:
“The employment of the word “shall” by the law makers in such contexts as in the First Schedule to the Electoral Act, 2002, connote that the fulfillment of the requirements set out thereunder is mandatory and imperative.
It is a word of command leaving no room for the exercise of discretion.”
The provisions of paragraph 4(3)(b) of the First Schedule of the Electoral Act, 2006 is as to form in which an election petition can be initiated. Where it is not so complied with then the whole petition is rendered invalid and the tribunal will lack the competence or the jurisdiction to act on it. In the instant case, the petition contains the name of Caleb K. Atiman, Esq at its foot who was the named solicitor from the firm of Tayo Jegede & Co. However, the signature was not that of Caleb K. Atiman, as it was another signature that signed for the named solicitor. (see page 7 of the records). It is a mandatory provision and its requirements must be complied with to make the petition competent.
Jurisdiction of a court to determine a matter has been defined as to when;
(1) the court is properly constituted as regards number and qualification of the members of the bench, that is no member is disqualified for one reason or another;
(2) the subject matter is within the courts jurisdiction;
(3) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of the court’s jurisdiction.
Any defect in competence vitiates the proceeding and makes it a complete nullity no matter how well the case is conducted. See Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341; Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1NWLR (Pt. 167) 270; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402) 402.
In the case at hand, before a party can initiate an election petition the law requires that such petition be signed either by the petitioner or a named solicitor. This is a mandatory provision and noncompliance will render the petition incompetent i.e. the petition is not initiated by due process of law and upon the fulfillment of a condition precedent. It is only when it is duly signed by the people named that the petition becomes competent and vests the tribunal with the jurisdiction to determine it. Caleb K. Atiman was the named solicitor at the foot of the petition and as envisaged by the provisions of the Electoral Act. He did not sign it and that renders the petition incompetent there is no other way about it. That it was signed by another solicitor in the same chambers is of no moment as it would not cure the initial defect. The petition was invalid, incurable and incompetent. The lower tribunal was right to have relied on Elem’s case (supra) which is on all fours with the present case to say that the petition was incompetent and to rightly strike it out. I so find.
Having made the above finding, it would be an exercise in futility to go into the 2nd issue as the petition remains incompetent from which ever angle you look at it. It is not curable.
I must here comment on the way and manner this matter is handled by appellants’ counsel. Having observed that the petition was defective and incompetent what was honourable in the circumstances was to have withdrawn same and file a fresh one not to waste the tribunal’s time in trying to explain that the petition was not defective. Similarly, the counsel should have gracefully accepted the court’s ruling and stopped there, and not come to this court with unacceptable submissions. I will say no more, a word is enough for the wise they say.”
For all I had been saying, I find no merit in this appeal. I accordingly dismiss it. I affirm the decision of the lower tribunal of 23/7/2007 striking out the petition before it for being incompetent.
I award costs of N50,000.00 to the 1st respondent against the appellant.
Other Citations: (2007)LCN/2546(CA)
