Ajao Ajadi Adams V. Babatunde Umar & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

On the 14th April, 2007, elections were held into the offices of the Executive Governors of the 36 States in the country as well as into the Houses of Assembly of the various States. The Appellant was the candidate of the Democratic Peoples Party (DPP) for the lIorin East Constituency, while the 1st Respondent was the candidate of the Peoples Democratic Party PDP), the 2nd Respondent to this Appeal. The election was organised, supervised and conducted by the 3rd to 5th Respondents, Independent National Electoral Commission ((NEC) and its officials. At the close of election, the 3rd to 5th Respondents credited the 1st Respondent with 74, 905 votes and declared him winner and duly elected on the 15th April, 2007. Dissatisfied with the process by which the 1st Respondent emerged victorious, the Appellant, as Petitioner, filed a Petition at the Governorship and Legislative Houses Election Tribunal Ilorin, challenging and seeking a nullification of the result declared by INEC. Upon being served with the Petition, the 1st and 2nd Respondents entered conditional appearances and went further to raise a preliminary objection to the hearing of the Petition in paragraph 1 of their Reply to the Petition. In furtherance to this, the 2nd Respondent, Peoples Democratic Party, filed a motion on notice supported by an affidavit wherein she further articulated her objection. She contested the competence of the Petition on the ground that it was in contravention of Paragraph 4(1)(c) of the Practice Directions 2007, (as amended), in that it failed to disclose the names and votes scored by the candidates at the election, except those of the 1st Respondent. In response, the Petitioner filed a counter affidavit and annexed therewith documents marked Exhibits A and A1 containing the result of the election and votes scored and declared for Ilorin South Constituency. In a considered Ruling, the Tribunal upheld the objection and struck out the Petition on the ground canvassed by the 2nd Respondent. It is now the Applicant’s position before this Court that he inadvertently did not raise and canvass the issues of the unconstitutionality and invalidity of the Election Tribunal and Court Practice Directions, 2007 as well as the effect of Paragraph 49(2) of the First Schedule to the Electoral Act, 2006 on the conduct of the Respondents, vis-a-vis the 2nd Respondent’s motion of 11/06/07. Thus, he has filed a motion before this Court seeking to raise the said issues for the first time in this Court.

The Applicant/Appellant in the application thus seeks the following reliefs:

1. Leave of the Court allowing the Applicant to raise and argue issues of law not raised and canvassed before the lower Tribunal.
2. An Order of Court deeming Grounds 1and 5 of the Grounds of Appeal which raise fresh issues not raised and canvassed before the lower Tribunal as duly filed and served, the prescribed fees having been paid.
3. An Order of Court deeming the Applicant/Appellant’s Brief as duly filed and served, the prescribed fees having been paid.

On the 23rd January, 2008, when this application came up for hearing, the court ordered that same should be incorporated into the main Appeal to be heard simultaneously. Learned Counsel therefore argued the application as well as the Appeal concurrently.

Mr. Jawondo, learned Counsel for the Applicant/Appellant, moved his motion and adopted the Applicant’s written address in this regard. He submitted that, at this stage, the court is not concerned with the reason(s) why the new issue was not raised at the lower court, but with the substantiality of the issues raised. He therefore urged the Court to grant the application. With respect to the main Appeal, Mr. Jawondo adopted the Appellant’s brief dated and filed on the 17th December, 2007. In further substantiation of the Brief, he made the following oral arguments: Learned Counsel submitted that one of the main grounds of the Appellant’s complaint in the Petition is that he was not credited with any result at all. The result released was as if the election was an uncontested election and only the 1st Respondent, of all the candidates that contested the election, had a result. Surprisingly, it is also for the same reason that the election was struck out, i.e. for failure to plead the scores of the Appellant and the scores of the other candidates which were not released by INEC. This is despite the fact that paragraphs 9 and 10 of the Petition, which pleaded these facts, had not been denied by the Respondents. In the circumstances, he prayed the Court to allow the Appeal and make the necessary orders to ensure that the Petition is heard on its merit.

Mr. Egbewole, learned Counsel for the 1st Respondent, in opposing the application, filed a Counter Affidavit dated and filed on the 18th January, 2008. He adopted his written address, (annexed to the Counter Affidavit as the 15t Respondent’s arguments in opposition to the application), and urged the Court to refuse the application. In respect of the main Appeal, learned Counsel adopted the 1st Respondent’s Brief dated 31st December, 2007 and deemed filed 23rd, January, 2008. In addition to his written arguments, learned Counsel submitted that issues were joined on paragraphs 9-10 of the Petition. He contended that the failure of the Appellant to disclose the results of the election even when he had access to them was found by the Tribunal to be in contravention of the provisions of the Electoral Act. He therefore urged the Court to dismiss the appeal with substantial costs.

Finally, Mr. Oniyede, learned Counsel for the 2nd Respondent, submitted that even though the 2nd respondent had not filed any Counter Affidavit or written address in response to the application before the Court, he had raised a preliminary objection to the hearing of the Appeal in the 2nd Respondent’s Brief of argument. The preliminary objection addresses the same issue raised in the application. He therefore urged the Court to refuse the application seeking to raise new issues before this Court. In respect of the main Appeal, learned Counsel adopted the 2nd Respondent’s Brief of Argument filed on 24th December, 2007 and urged the Court to dismiss the Appeal.

The 3rd, 4th and 5th Respondents to this Appeal, though duly served with all the processes of Court in this Appeal, including a hearing notice for the date of hearing, neither filed any process nor appeared in Court by themselves or through counsel on their behalf.

The Applicant in his Written Address in support of the application formulated one sole issue for the determination of the Court as follows:

Having regard to the new issues or fresh issues being sought to be raised in this Appeal, whether the Appellant/Applicant is entitled to the discretion of the Court to raise and argue the new or fresh issues.

Learned Counsel for the Applicant contends in essence that the Applicant has met the two conditions for the grant of this relief, i.e. that the question involves a substantial point of law and that no further evidence will need to be adduced in deciding the new issue.

On his own part, the 1st Respondent’s Counsel also formulated one sole issue for the determination of the Court thus:

Whether the Appellant/Applicant has satisfied the requirement of the law to entitle him to the discretion of the Court to allow him to raise/argue fresh issues that were not canvassed before the trial Tribunal.

While conceding that this Court has the unfettered discretion to grant leave to an applicant to raise and argue issues not raised, canvassed or agitated before a lower Court, he submitted that such jurisdiction must be exercised judicially and judiciously based on materials presented to the Court. It is his contention that no such materials have been placed before this Court by the Applicant. He went further to submit that the Applicant’s failure to raise the issues before the Tribunal was deliberate and in furtherance of the exercise of the professional judgment of learned Counsel for the Applicant. He contended that for a new issue to be raised for the first time on appeal, the Applicant is required to show special circumstances why such new issues should be allowed to be raised. In the absence of such, the application must fail. He relied on Pilede v. Shonekan (1995) 1 NWLR (Pt. 374) 668 at 685. It is the contention of learned Counsel that the new issue sought to be raised must not only be a substantial one of law but must in addition satisfy the twin requirements of:

(1) a point of which argument in favour of more than one interpretation might reasonably be adduced;

(2) a point which must necessarily be decided in the case or matter and not which may be necessary to decide.

He submitted that the Appeal herein could be decided without the necessity of considering or deciding the fresh issues sought to be raised by the Applicant. He cited Mohammed Petroleum Ltd v Afribank Nig Plc 6 (2007) ALL FWLR (Pt. 344) 81 @ 99-100. It is further Counsel’s submission that the fresh issue sought to be raised which borders on the constitutionality of the Practice Directions is beyond the scope of the Tribunal. Consequently, this Court cannot exercise its Section 16 of the Court of Appeal Act powers to entertain the question, since by the same token the lower Tribunal could not have entertained same. He cited State v Onagoruwa (1992) 2 NWLR (Pt. 221) 33 @ 55; Sarowiwa v. FG (1995) 1 NWLR (Pt. 374) 7759 @ 767. He urged the Court to dismiss the application.

The 2nd Respondent, on his part, addressed this issue under the Preliminary objection he raised in the body of his Brief of Argument in respect of the main Appeal. He straightaway launched an offensive against Grounds 1 and 5 of the Grounds of Appeal which he termed as incompetent on the grounds that the issue of the unconstitutionality of the Practice Directions, 2007 was not raised before the Tribunal neither was it a matter arising from the Ruling of the Tribunal delivered on the 13th August, 2007. In addition, Counsel contended that, leave of this Court, having not been sought and obtained before incorporating the said grounds into the Appeal, this Court should discountenance Grounds 1 and 5 of the Grounds of Appeal as the motion on notice filed to regularise this is an afterthought or ‘medicine after death’.

The issues formulated by the Applicant and the 1st Respondent say essentially the same thing in different ways. Since I agree with both of them on the issue that calls for our determination in this application, I will address it the way it has been framed by the Applicant. There can be no doubt that an appellate court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon by the Court below. In the same vein, an Appellant will not generally be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court. However, where the question concerns substantial point(s) of law, substantive or procedural, and it is plain that no further evidence need be adduced which would affect the decision on them, the Court will allow the question to be raised and the points taken in order to prevent an obvious miscarriage of justice. See Oshatoba V Olujitan (2000) 2 SCNJ 159; Koya v UBA (1997) 1 SCNJ 1 @ 11-12; Skenconsult V Ukey (1981) 1 SC 6; AG Oyo State V Fairlakes Hotels Ltd (1988) 5 NWLR (Pt. 92) 1 @ 29; Akpene V Barclays Bank (1977) 1 SC 47.

However, beyond that, the Court is obliged to consider also the necessity or compulsion of addressing such a fresh point of law at this stage of the proceedings. Where the Appeal can properly be decided without the necessity of including the said point of law, then the application to raise same would be refused. In the instant case, the question to be asked and answered is whether it can be strictly said that the issue of non-compliance with Paragraph 4(1) (c) of the Electoral Act cannot be determined without a consideration of the constitutionality of the Practice Directions, 2007. Clearly, from the Ruling of the Tribunal as contained in the transcribed record, the Practice Directions did not in any way play pivotal role in the Tribunal’s decision to strike out the Petition. If anything, it was addressed as an ancillary or secondary issue by the Tribunal in arriving at a decision whether or not to countenance the counter affidavit of the Appellant/Respondent. (See page 15 line 20 of the record). It is my firm view therefore, that an appeal against that decision can be adequately and fully dealt with, without the necessity of delving into such an extraneous matter, as is sought to be introduced by the Appellant.

Secondly, the issue now sought to be raised by this application is one which touches on the constitutionality or otherwise of the Election Tribunal Practice Directions, 2007 (as amended). Learned Counsel for the Applicant has clearly contended in his proposed Ground 1 of the Grounds of Appeal that:

“1. The learned trial judges of the Tribunal erred in law in placing reliance on an unconstitutional and illegal instrument to wit, Election Tribunal and Court Practice Directions 2007, to hold that the Petitioner/respondent’s Counter Affidavit and Written Address filed were filed out of time and therefore incompetent. ”

Learned Counsel for the Appellant/Applicant has argued that the Practice Directions is ultra vires the powers of the President of the Court of Appeal as conferred upon him by the 1999 Constitution and the Electoral Act, 2007. But the issue here is: whether the issue of the constitutionality or otherwise of the Practice Directions is a proper subject to be raised in this Court sitting as an Election Petition Appeals Tribunal. The Applicant has canvassed the affirmative answer to this question. However, I firmly believe he is wrong. The law and the authorities on the subject are very clear that an Election Tribunal is not the venue to raise and canvass matters which touch on the interpretation of the Constitution. Such should go to the High Court or the Federal High Court, as the case may be.

Section 285(1) and (2) of the 1999 Constitution sets out the scope of the jurisdiction of Election Tribunals to be as follows:

(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly election Tribunals which shall, to the exclusion of any court or tribunal, have jurisdiction to hear and determine petitions as to whether-

a) any person has been validly elected as a member of the National Assembly;

b) the term of office of any person under this Constitution has ceased;

c) the seat of a member of the Senate or a member of the House of Representatives has become vacant; and

d) a question or petition brought before the election tribunal has been properly or improperly brought.

(2) there shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.

From this it is obvious that matters that border on constitutional questions are not within the scope of an Election Tribunal’s jurisdiction as delineated therein. Further to this, Section 145 of the Electoral Act sets out the grounds upon which an election can be questioned before an Election Tribunal. It provides:

“145. (1) 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 non-compliance with the provisions of this Act;

c) that the respondent was not duly elected by majority of the lawful votes cast at the election; or

d) (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. ” From all the above, issues bordering on constitutional matters are undoubtedly not included in the areas to be entertained by an Election Tribunal. The jurisdiction of this Court in respect of Appeals from such Election Tribunals is set out in Section 246 of the 1999 Constitution. It provides:

246. – (1) An Appeal to the Court of Appeal shall lie as of right from –

a) ……

b) Decisions of the National assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –

(i) any person has been validly elected as member of the National Assembly or of a House of Assembly of a state under this Constitution,

(ii)any person has been validly elected to the office of governor or Deputy Governor, or

(iii) the term of office of any person has ceased or the seat of any such person has become vacant.

It is plain that the Court of Appeal has been empowered to hear appeals from Election Tribunals on very specific matters relating to the validity of the elections of the said persons into the stated offices. The jurisdiction which the Court can exercise has been specifically listed in that section of the Constitution. Therefore, any jurisdiction which is outside sub-paragraphs (i) (ii) or (iii) is not recognised by the Constitution.

Jurisdiction is the authority which a Court has to decide matters which are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are limited by the Constitution or by the statute under which the court is constituted and may be extended or restricted by similar means. Where the language of the Constitution is clear and unambiguous, the court must give its plain, simple, natural and obvious meaning. See Attorney-General Bendel State V Attorney-General Federation (1981) 1 ALL NLR 1. Hear Niki Tobi JSC on this vexed issue of jurisdiction in Yusuf v. Obasanjo (2004) 5 SCNJ 1 at page 44 of the report:

‘Jurisdiction is a very hard matter of law which is donated by the Constitution and the enabling statute. It is also a very sensitive matter in the judicial process. Considering its very hard and sensitive nature, courts of law must always bow or kowtow to the provisions of the constitution and the enabling statute. On no account should we remove from a court which has jurisdiction to hear a matter to another court which has no jurisdiction to hear. That is not right and we should not do it. ”

The jurisdiction of this Court under Section 246 in relation to appeals from Election Tribunals is very clear. All other grievances outside that provision can only be justiciable in other courts recognised for such jurisdiction in the Constitution. See Yusuf v. Obasanjo (Supra) and Buhari v Yusuf (2003) 6 SCNJ 344.

It is therefore my firm view that this Court does not possess jurisdiction to adjudicate on the issue which seeks to declare as unconstitutional the Practice Directions, 2007. Such an issue has no place before an Election Tribunal or an Election Petition Appeals Tribunal. Where, however, a party conceives that there has been an infringement of any law, such as the Constitution, it could decide, if so motivated and aggrieved, to commence an action before the Federal High Court. This Court is not the right court for such a matter. Section 251(1)(q) and (r) of the 1999 Constitution accommodates this sort of situation and puts it beyond question that it is the Federal High Court, to the exclusion of any other Court, that is vested with jurisdiction to entertain questions on the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies. It states: 251. -(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –

(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

It goes without saying that INEC, against whom the Applicant now complains, did not release the results/scores of the election and yet returned the 1st Respondent as the duly elected candidate, is an agency of the Federal Government. INEC is the 3rd Respondent in this Appeal, while its officers are the 4th and 5th Respondents. I am therefore of the considered view that if the Applicant seriously intends to canvass the issue of the constitutionality or otherwise of the Practice Directions, then he has come to the wrong forum to launch his offensive. In order to be heard, he must re-direct his energies to the Federal High Court which is properly vested with jurisdiction to hear and determine such an issue as a Court of first instance. I am fortified in my view by the very recent decision of the Supreme Court in the case of Peter Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565. In that case, a constitutional question was raised before the Federal High Court relating to the interpretation of Section 180(2)(a) of the 1999 Constitution in respect of the tenure of the Governor of a State. The Federal High Court declined jurisdiction and the Court of Appeal affirmed its decision on the point. On further appeal to the Supreme Court, the learned Jurists set aside the decision of the two Courts on that point.Hear Aderemi, JSC delivering the lead Judgment at page 636 of the report:

“It is clear that by Section 251(1) (q) supra, the interpretation of the provisions of the 1999 constitution is vested in the Federal High Court in so far as it affects the Federal Government or any of its agencies. To be specific, Section 251(1)(q) and (r) puts it beyond any doubt that the Federal High Court has the power to enter into adjudication on any action or proceeding seeking declaratory and injunctive reliefs. Indeed this section defines the jurisdiction of the Federal High Court. ”

The Apex court has spoken. No more needs be said.

Another perspective to this issue is whether, given the nature of the fresh issue sought to be raised, it is an issue which can properly be raised in these proceedings before this Court. To start with, this certainly was not an issue before the lower Tribunal and that is why the Applicant is before this Court seeking leave to raise it as a fresh issue. It is also apparent that this Court is being invited to do that which was not done but which could have been done by the lower Tribunal by the invocation of its powers under Section 15 of the Court of Appeal Act, 2004. The Section provides thus:

15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant an injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.

This provision vests in the Court of Appeal a general power to “make any order necessary for determining the real question in controversy in the Appeal”. By virtue of this provision, this Court has power to make any order to ensure the determination on the merits of the real question in controversy between the parties. It undoubtedly gives the Court full jurisdiction over the whole proceedings of the lower Court as if the proceedings had been instituted in this Court as a court of first instance, and so, this Court may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing. These general powers vested in the Court of Appeal were designed to enable the Court clear whatever technical mistakes or obstacles which may be in the way of a fair determination of the Appeal on its merit or of determining the real question in controversy in the Appeal.

However, one incontestable limiting factor to the power of this Court to assume full jurisdiction over the whole proceedings is that such first instance jurisdiction exercised by the Court of Appeal pursuant to Section 15 of the Act does not include what the trial Court could not have done. See Comptoir Ltd V Ogun State Water Corporation (2002) 3 SCNJ 342; AG Anambra State V Okeke (2002) 5 SCNJ 318 @ 333-335. Aderemi, JSC in the case of Peter Obi V INEC (Supra) at page 639 of the report, explicitly expatiated the powers of this Court imbued on it by Section 15 of the Court of Appeal Act as follows:

“Broadly speaking, the provisions of section 16(SIC) of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court below it could have made in the interest of justice. This presupposes that the court below the Court of Appeal must have got jurisdiction to entertain the suit and the court below it also had jurisdiction in the matter but failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial court could not have made in resolving the dispute between the parties in the suit before it. The purpose of section 16 aforesaid is, in my view, to obviate delayed justice. ”

In applying this principle of law to the instant application, given that the lower Tribunal could not have entertained these issues now sought to be raised in the Appeal, being matters bordering on the constitutionality or otherwise of the Practice Directions, 2007, this Court is likewise restricted, hamstrung and without jurisdiction to give the Applicant/Appellant a hearing on the said issues. I do so find.

In the result, for all the reasons stated, I find the application to raise the fresh issue as in Ground One completely bereft of any merit. It ought to be, and is accordingly refused. In respect of Ground Five however, it is my candid opinion that, being a substantial point of law in respect of which no further evidence will be adduced, it ought to be granted. Therefore, leave is hereby granted the Applicant herein to raise and argue same in this Appeal.

In respect of the substantive Appeal, the Appellant has formulated five issues for the determination of the Appeal from the 12 Grounds of Appeal filed. Issue number one relates to Ground 1 of the Grounds of Appeal. Having refused the Appellant leave to raise and argue same, issue one has become redundant. It is accordingly discountenanced. There are therefore now only four outstanding issues. The 1st and 2nd Respondents in their respective Briefs of Argument similarly formulated issues for the determination of the Court in the same vein as the Appellant. Upon a close examination of the issues distilled from the Grounds of Appeal, I believe a combination of the said issues formulated by the parties will better bring into focus the real issues arising from this Appeal. I therefore formulate the issues to be determined thus:

1. Whether the Tribunal was right to discountenance the Appellant’s Counter affidavit, Exhibits. A and A1 and the Written Address filed on 25th June, 2007 outside the time permitted by the Practice Direction, having regard to Paragraph 43 of the First Schedule to the Electoral Act and Orders 9 and 10 of the Federal High Court (Civil Procedure) Rules, 2000. Grounds 2, 3 and “.
2. Whether, in view of Paragraph 49(2) of the First Schedule to the Electoral Act, the Tribunal was right in entertaining the 2nd Respondent’s motion filed on 11th June, 2007, the 2nd Respondent having taken steps in the proceedings by filing her Reply to the Petition. Ground 5.
3. Whether the Tribunal was right to discountenance the Petitioner’s oral application for extension of time to file his Counter affidavit and Address. Ground 4.
4. Whether, in determining the 2nd Respondent’s motion filed on the 11th June, 2007, the Tribunal ought to have taken into consideration the Counter affidavit, exhibits and the Address attached thereto and filed by the Petitioner. Grounds 5 and 6.
5. Whether the Tribunal was right in striking out the Petition having regard to all the circumstances of the case. Grounds 8, 9, 10 and 12.

Issue One.

Whether the Tribunal was right to discountenance the Appellant’s Counter affidavit, Exhibits A and A1 and the Written Address filed on 25th June, 2007 outside the time permitted by the Practice Directions, having regard to Paragraph 43 of the First Schedule and Order 9 and 10 of the Federal High Court (Civil Procedure) Rules, 2000.

Under this issue the learned Counsel for the Appellant has submitted that Paragraph 43 of the First Schedule to the Electoral Act, 2006 is not applicable and so was wrongly invoked by the lower Tribunal. He anchored this submission on the following three points:

a) Paragraph 43(1) (2) (3) (4) (6) and (7) of the First Schedule to the Electoral Act, 2006 relate only to the taking of steps under the Electoral Act and/or the Federal High Court Rules and does not relate to the Practice Directions, 2007 which was not in existence at the time the Electoral Act was passed.

b) The failure of the Petitioner to file his Counter Affidavit and Written address within time is not an infraction against the Electoral Act or the Federal High Court Rules as neither of them prescribes a penalty for failure to comply therewith.

c) Paragraph 43 does not regulate the procedure for filing and hearing of motions in an Election Petition. It only makes provision for the filing of motions in respect of withdrawal of Petitions.

It is therefore his contention that the only procedure for the filing of documents and the hearing of motions before an Election Tribunal, (other than motions for the withdrawal of Petitions) are as set out under Orders 9 and 10 of the Federal High Court (Civil Procedure) Rules, 2000 applicable by virtue of Paragraph 50 of the First Schedule to the Electoral Act, 2006. He relied on Yusuf V Obasanjo & Ors (2003) 9-10 SC 69 @ 70; 74-75. Under these provisions, he argues that no time limit is prescribed for the filing of a Counter affidavit so long as same is filed before the hearing of the motion. He contends that the Appellant herein filed his Counter affidavit on the 26th June, 2007 and the motion was heard on the 9th August, 2007. It is therefore his contention that the Appellant filed both the Counter Affidavit and the Written Address before the hearing of the motion. Furthermore, learned Counsel argued that since the Practice Directions does not provide a penalty for non-compliance with Paragraph 6 (4) thereof, the rule is merely directory, and an infraction of same would amount to a mere irregularity. For this submission, he relied on the cases of Katto V CBN (1991) 12 SCNJ 1 @ 17 and Duke V Akpabuyo LG (2005) 12 SC (Pt. 1) 1 @ 3; Davies V Mendes & Ors (2007) ALL FWLR (Pt. 348) 883 @ 905. He urged the Court to allow the Appeal on this issue.

Learned Counsel for the 1st Respondent, in addressing this issue, argued that Paragraph 43 of the First Schedule to the Electoral Act, 2006 provided the Appellant a window of opportunity, being out of time, which he failed to avail himself of. He contended that the argument that Paragraph 43 does not provide a sanction for failure to comply with same is hollow because it is a natural consequence of non compliance with Rules of Court that the step taken in contravention of a Rule of Court goes to naught. He further submitted that the natural consequence of noncompliance with Paragraph 6(4) of the Practice Directions is for the Court not to act on the processes filed in default of compliance. He relied on Anie v. Uzocka (1993) 9 SCNJ (Pt. 11) 223 @ 239 and Ugwu V Ararume (2007) 12 NWLR (Pt. 1048) 367 @ 475.

On his own part, learned Counsel for the 2nd Respondent tried to demolish the Appellant’s arguments on this issue by contending that the lower Tribunal, having proceeded to consider the Exhibits A and A1 attached to the Appellant’s Counter affidavit, ex abundanti cautela, the argument that the Tribunal was wrong to have discountenanced same has become both hypothetical and academic. On the authority of Akinyanju V Unilorin (2005) 7 NWLR (Pt. 923) 87 @ 115 as well as Akinfolarin V Akinnola (1994) 3 NWLR (Pt. 335) 659 @ 690, he asked the Court not to indulge in such issues.

Secondly, he submitted that on matters of jurisdiction, the Court will only look at the claim of the Petitioner. A Counter affidavit is extraneous to such a consideration. Therefore, anything contained in a Counter affidavit was outside the documents for consideration by the Tribunal. He urged the Court to hold that the Tribunal did not err in discountenancing the Counter affidavit in coming to its decision on the point of law raised.

In respect of the argument of the Appellant that the First Schedule to the Electoral Act does not regulate the procedure for the filing of motions in Election Petitions, learned Counsel referred in particular to Paragraph 50 thereof which makes the Federal High Court (Civil Procedure) Rules subject to the express provisions of the Act. He also relied on Yusuf V Obasanjo (Supra) 53 @ 70. He therefore submitted that the since the Electoral Act is similar in all respects to the Electoral Act of 2002, Paragraph 43 to the First Schedule applies to all motions and applications before the Election Tribunal. Learned Counsel submitted that the Appellant failed to comply with the express provision of Paragraph 43(6) which provides that an application for extension of time be made by motion on notice to the other party. He argued that the Appellant did not file any motion for an enlargement of time as specifically provided. The oral application was consequently improper and so incompetent. He therefore urged the Court to answer this issue in the affirmative and so dismiss Grounds 2, 3 and 11 of the Notice of Appeal.

The Appellant, under this issue, questions the deployment of Paragraph 43 of the First Schedule to the Electoral Act, 2006 in conjunction with Paragraph 6 (4) of the Practice Directions to discountenance his Counter affidavit and Written Address before the lower Tribunal. I intend to start from the fallacy inherent in this issue, and that is, whether indeed the said documents were out rightly discountenanced by the lower Tribunal without more. It is apparent from pages 153-159 of the transcribed record of the lower Tribunal that, much as it held, after proper consideration, that the said documents were not properly before the Tribunal, it went ahead, ex abundanti cautela, in the alternative, to hear the application, giving proper consideration to both documents. Having gone to such lengths to serve the ends of justice, it is surprising that the Appellant herein has again raised this issue before this Court. The issue is now indeed both hypothetical and academic, and has entered into a realm where this Court usually does not allow itself the luxury to venture into. See Akinyanju V Unilorin (2005) 7 NWLR (Pt. 923) 87 @ 115; Akinfolarin V Akinnola (1994) 3 NWLR (Pt. 335) 659 @ 690. Be that as it may, the nature of Election Petitions being sui generis and the general public having such an emotional, even fixated interest in the outcome thereof, this Court will embark on an expedition into this academic field having regard to the sensitive nature of election petitions.

In order to consider the three-pronged attack to the applicability of Paragraph 43 of the First Schedule to the Electoral Act to the Petition of the Appellant before the lower Tribunal, I will, for ease of reference, set out the provision hereunder:

Section “43

(1) The Tribunal or Court shall have power, subject to the provision of Section 141 of this Act and paragraph 14 of this Schedule, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.

(2) An enlargement of time may be ordered although the application for enlargement is not made until after the expiration of the time appointed or allowed.

(3) When the time for delivering a pleading or document or filing any affidavit, answer or document, or doing anything or act is or has been fixed or limited by any of these sections, paragraphs or rules under or in pursuance of this Act or by a direction or an order of the Tribunal or Court, the costs of an application to extend the time, where allowed or of an order made thereon shall be borne by the party making the application unless the Tribunal or Court orders otherwise.

(4) Every application for enlargement or abridgement of time shall be supported by an affidavit.

(5) An application for abridgement of time may be ex parte, but the Tribunal or court may require notice of the application to be given to the other parties to the election petition.

(6) An application for enlargement of time shall be made by motion after notice to the other party to the election petition but the Tribunal or the Court may, for good cause shown, by affidavit or otherwise, dispense with the notice.

(7) A copy of an order made for enlargement or abridgement of time shall be filed or delivered together with any document filed or delivered by virtue of the order.”

The Appellant has hinged the first thrust of his argument on the fact that the Practice Directions, 2007, which was acted upon by the lower Tribunal, was not in existence at the time the Electoral Act, 2006 came into force. Therefore, the lower Tribunal erred in applying the Practice Directions, which fixes a time limit with respect to the taking of steps or filing of documents, to discountenance his Counter affidavit and Written Address. In order to come to grips with this issue, I believe it is crucial to define what a ‘Practice Direction’ is and what it portends or signifies. Practice Directions have been the subject of judicial pronouncements over the years and yet it still evokes strong views in legal circles. ‘Practice’ is defined in Black’s Law Dictionary as “The procedural methods and rules used in a court of law”. While ‘Direction’ is defined in the Oxford English Dictionary 6th Edition to mean “Order or instruction what to do”. Judicially, ‘direction’ has been defined as “an order to be carried out”, while ‘order’, so far as the Supreme Court is concerned, is said to be “a direction other than final judgment”. Thus, when juxtaposed, a Practice Direction may be said to be concerned with the rules indicating the manner in which applications in interlocutory proceedings in court shall be dealt with or regulated, and the provision of guidelines as to what should be done. In other words, it regulates the manner in which a particular rule of court should be complied with. More to the point, a Practice Direction is defined as a direction by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed and obeyed. It needs to be said that as useful as they are, Practice Directions do not have the force of law and cannot fetter a rule of court. In other words, where there is a conflict between a rule of court and a practice direction, the rule of court must prevail. In the case of University of Lagos and Anor. V Aigoro (1984) 11 SC 152 @ 191, the Supreme Court stated thus:

“Practice Directions do not have the authority of rules of court although they are instructions in aid of the practice in court. They cannot by themselves overrule court decisions. ”

Nevertheless, the Practice Directions, as a rule of Court, must be complied with and should not be circumvented, and so no favour should be shown for not obeying same. See Ladipo V Oduyoye (2004) 1 EPR 705 and Ojugbele V Lamidi (10 NWLR (Pt. 621) 167 @ 177.

Since this is the purport of a Practice Direction, then no difficulty should arise from the fact that it was made after the Electoral Act or even the Rules of court. Its purpose, at any given point in time, is to make the rules of court more efficacious by regulating the manner of compliance by the operators of the rules. It goes without saying that the First Schedule to the Electoral Act sets out rules of procedure regulating the practice and procedure in Election Tribunals. What the Practice Direction does therefore is to guide and regulate compliance with, and the observance of, the said rules governing the practice and procedure in Election Tribunals by expressly setting out the ‘how’ and the ‘when’ things are to be done. This helps to avoid absurdity in the application of the rules and keeps the wheels of justice well greased to roll along smoothly. For instance, in the case in point, it has been strenuously argued by learned Counsel for the Appellant that whereas Orders 9 and 10 of the Federal High Court Rules and the First Schedule to the Electoral Act, 2006 do not set a time limit for the filing of a counter affidavit, the Practice Directions, 2007 has limited the time to 7 days. This is in fact the crux of his disagreement with the decision of the lower Tribunal. Since this issue shall be addressed anon, no more shall be said here save to say that the making of the Practice Directions after the coming into effect of the Electoral Act in no way detracts from the applicability of the said Directions to the First Schedule of the Act, given the entire purport of Practice Directions. Instead, the Practice Directions exists to facilitate adherence to the rules of court. Much as it is subservient to the rules, it must be obeyed and not circumvented. See Ojugbele V Lamidi (supra). It is only where there arises a conflict between a rule of court and a practice direction that the rule of court will then prevail. See University of Lagos & Anor. V Aigoro (Supra) @ 171. Where there is no such conflict, they work as tag-team partners to serve the ends of justice. Consequently, I find the submissions of learned Counsel for the Appellant in this regard totally misconceived.

The second thrust of his argument under this issue is that the failure of the Appellant to file his counter affidavit within time is not an infraction against the Electoral Act or the Federal High Court Rules as neither of them provide a penalty for such non-compliance. Indeed, a perfunctory look at the First Schedule to the Electoral Act and the Practice Directions will reveal that, inasmuch as they have made provision for the procedure to be followed in interlocutory applications, they do not contain sanctions for any non-compliance. However, in order to decipher whether the rules in respect of seeking an extension of time are required to be in a written form and on notice within a specific time period or not, it is necessary to filter out the intention of the makers of the rules. It is a well known and cardinal rule of the interpretation of statutes that the provisions of a statute should be read as a whole in order to gather the true intentions of the lawmaker. In other words, a construction which would leave without effect any part of the language of a statute will more often than not be rejected. See AG Federation V ANPP & Ors (2004) 1 EPR 312. The contents of Para 43 (4) and (6) have already been set out earlier. While Para 6 (4) of the Practice Directions provides as follows:

6-(1) No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.

(2) Where by these Directions any application is authorized to be made to Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.

(3) Every such application shall be accompanied by a written address in support of the reliefs sought.

(4) Where the respondent to the motion intends to oppose the application, he shall within 7 days of the service on him of such application, file his written address and may accompany it with a counter-affidavit.

(5) The applicant may on being served with the written address of the respondent file and serve an address in reply on point of law within 3days of being served. Where a counter affidavit is served on the applicant he may serve further affidavit with his reply.

It is worthy of note that in both the rules and the Practice Directions, the word ‘shall’ is deliberately employed. ‘Shall’ has been interpreted as having various meanings. Hear Niki Tobi, JSC in the recent case of Ugwu V Ararume (2007) 12 NWLR (Pt. 1048) 367 @ 441 – 442:

“‘Shall’ “.. may be used as implying futurity or implying a mandate … or direction or giving permission. The word ‘shall’ when used in a statutory provision imports that a thing must be done and when the negative phrase ‘shall not’ is used, it implies that something must not be done. It is a form of Command or a mandate. See Nigeria LNG Ltd v. African Development Insurance Co. Ltd (1995) 8 NWLR (Pt. 416) 677. Generally when the word “shall” is used in a statute, it is not permissive. It is mandatory. See Col. Kaliel (Rtd.) V Alhaji Aliero (1994) 4 NWLR (Pt. 597) 139. The word “shall” in its ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation … It is sometimes intended to be directory only and in that case it is equivalent to “may” and will be construed as being merely permissive. See Amokeodo V Inspector-General of Police (1999) 6 NWLR (Pt. 607) 467. ”

In its ordinary meaning, “shall” is a word of command which must be given an obligatory meaning as denoting compulsion. It has the invaluable consequence of excluding the thought of discretion to impose a duty which may be enforced. Therefore, if a statute provides that a thing “shall” be done, the expected and proper meaning is that a peremptory and absolute mandate is enjoined.

With the greatest respect to Counsel, from a complete and cumulative reading, I am of the firm view that the word “shall” in both the Rules contained in the First Schedule to the Electoral Act and the Practice Directions is both mandatory and peremptory, and not merely directory or permissive. Therefore, the purport of both is that, before an applicant will be allowed to use a counter affidavit filed outside the 7 days limit set by the Practice Directions, he must come by way of a motion for enlargement of time on notice to the other parties. This notice can only be dispensed with by the Tribunal for good cause shown by way of affidavit or otherwise. Evidently, from the record of the lower Tribunal, there was no attempt by the Appellant to comply with these rules of court. Instead, the Appellant has submitted that since no sanction for non-compliance is provided, it was wrong for the Tribunal to have discountenanced his counter affidavit. This however is not the position of the law. The absence of a specific sanction in respect of a mandatory rule of court notwithstanding is not a basis for saying that it should not be enforced. If the rule of court contains the word “shall” used in its mandatory sense and it is so construed by the court, then the consequence of not complying with the rule follows logically and automatically. It certainly will not avail the Appellant to argue the converse as the intendment of the makers of the rules must be decoded in order to give full effect to same. This will also serve to avoid the mischief which the rules set out to cure. Moreover, Order 10 Rule 4 of the Federal High Court Rules has specifically provided that:

‘Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court or judge in chambers”.

In the instant case, the Appellant, by his own admission, was admittedly out of time and yet he failed to come either by way of a motion on notice or even orally to seek an enlargement of the time provided for filing. While the current trend is in favour of hearing Election Petitions on their merit, the fact remains that they are distinct from ordinary civil proceedings. Consequently, in certain situations, the slightest default in complying with a procedural step, which could either be waived or cured in ordinary civil proceedings, could result in fatal consequences in an Election Petition. See Ojong V Duke (2003) 14 NWLR (Pt. 841) 581 and Buhari V Yusuf (2003) 14 NWLR (Pt. 841) 446. Be that as it may, it is evident from 29 the face of the record, that the Tribunal went to great lengths to see how it could accommodate the Counter affidavit and Written Address in the face of such flagrant disobedience of the Rules of Court and Practice Directions. In the end, out of an abundance of caution, it still decided to consider the counter affidavit on its merit in the event that its first decision that same was incompetent is overturned. I commend the Tribunal’s effort in this regard. On the whole, it is my considered view that the first decision of the Tribunal to discountenance both the Counter affidavit and the Written Address filed out of time cannot be faulted. I find that this aspect of the complaint is also misconceived.

The third thrust of issue one is even more disheartening. Learned Counsel submits that since the Electoral Act, 2006 does not make specific mention of motions, except for motions for withdrawal of petitions, then the lower Tribunal was without power to entertain any motions at all brought before it except that which was specified. This is a preposterous and bizarre submission that should not, of course, be taken seriously. Indeed, the absence of rules regulating other issues, such as the issue of a motion for extension of time, is the very basis and underscores the need for Paragraph 50 of the First Schedule which allows the Federal High Court Rules to be used and the need for Practice Directions to regulate the application of the Rules. It is inconceivable that the Rules will provide for a party to seek an enlargement of time and yet, for argument to be advanced that such an application cannot be brought under the Act because the Rules do not make specific mention of motions for extension/enlargement of time, as was specifically done for the withdrawal of petitions. No more needs be said about this. Suffice is to say that by a combination reading of Paragraph 6(4) of the Election Tribunal and Court Practice Directions, 2007, Order 10 Rule 4 of the Federal High Court Rules, 2000 and Paragraph 43 of the First Schedule to the Electoral Act, 2006, the Tribunal acted rightly when it discountenanced the Appellant’s Counter Affidavit, Exhibits A and A1 and the Written Address filed out of time. The jurisdiction of an Election Tribunal to deal with Election Petitions is of a very special nature different from that in civil cases. It is plain that the proceedings are special for which special provisions have been made. In consequence of all the above, issue one is resolved in favour of the Respondents. Grounds 2 and 3 fail.

Issue Two.

Whether the Tribunal was right in entertaining the 2nd Respondent’s motion filed on 11th June, 2007 having taken steps in the proceedings by filing her Reply to the Petition.

It is submitted by the Appellant that the lower Tribunal was wrong to have entertained the 2nd Respondent’s application challenging the Petition on the ground that it is void for non-compliance with Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006, having regard to the time the application was filed and argued, as well as the provisions of Paragraph 49(2) of the same Schedule. The records show that the Petition was filed on 15 May, 2007. Upon being served, the Respondents allegedly filed their respective Replies without protest. The application challenging the competence of the Petition was subsequently filed on 11 June, 2007. Another Motion was filed on the 16th July, 2007 and argued by the 2nd Respondent on the 17th July, 2007, which motion failed. Learned Counsel for the Appellant contends that the defect complained of appears on the face of the Petition. Yet, the 2nd Respondent and all the Respondents took fresh steps in the proceedings after becoming aware of this defect. That being the case, they are taken to have waived their rights to complain. It is his position that the fact of non-compliance with the Rules bordering on the competence of the Petition before the Tribunal is of no moment having regard to Paragraph 49(2) of the First Schedule to the Electoral Act. In addition, learned Counsel submits that, despite the use of the word “shall” in Paragraph 4(1) of the First Schedule to the Act, any non-compliance should not lead to an automatic termination of the Petition, as is discernible from Paragraph 49(1) of the Act. He contends that the Respondents have therefore lost the right to complain and asks the Court to allow the Appeal on this issue.

Learned Counsel for the 1st Respondent submits that the 1st and 2nd Respondents, having filed conditional appearances in protest to the competence of the Petition, had in addition filed a Preliminary Objection as well as the application now in question within a reasonable time. He contends that the filing of a Respondent’s Reply is not a fresh step that can amount to a waiver, as a party cannot by his action or inaction waive any statutory provision. He submits that Paragraph 4(1)(c) is a condition precedent to the competence of the Petition and the failure of the Appellant to comply with same is fundamental. He further argues that Paragraph 49(1) cannot save the Petition in the light of Paragraph 4(6) of the First Schedule, which provides that a Petition in contravention of Paragraph 4(1) is liable to be struck out.

On his own part, learned Counsel for the 2nd Respondent submits that the law is now trite that an objection concerning jurisdiction can be raised at any time, even for the first time, on appeal. The reason being that parties cannot, even by mutual consent, confer jurisdiction on a court once it is clear that it has none. He contends that the issue raised in the motion relates to the competence of the Petition and the jurisdiction of the Tribunal. In addition, he referred to the conditional appearance entered by the 2nd Respondent which is consistent with the conduct of a party who intends to contest the competence of the Petition. Learned Counsel equally referred to Paragraphs 3(1) & (7)(d) of the Practice Directions which provides that points of law can only be heard and determined during the pre-hearing session after the filing of the Respondents’ Replies. He therefore submits that the filing of the 2nd Respondent’s Reply on 11th June, 2007 and the arguing of another motion on the 17th June, 2007 do not amount to a waiver, especially as the latter motion was similarly aimed at prompting the termination of the Petition, which aim is in consonance with the object of the motion of 11th June, 2007. Learned Counsel therefore urged the Court to hold that the 2nd Respondent did not waive her right to raise the objection, and to answer issue 2 in the affirmative, dismissing Ground 5 of the Notice of Appeal.

From the transcribed record of proceedings of the lower Tribunal, the Petition of the Appellant challenging the return of the 1st Respondent as the duly elected candidate in the election of 14th April, 2007 was filed on the 15th May, 2007. Thereafter, the Respondents both entered “Conditional Appearances” on the 21st May, 2007. This is clearly evident at pages 26 – 27 of the transcribed record. The purport of the entry of a conditional appearance is that the party raising same intends to contest the competence of the suit and/or the jurisdiction of the court to entertain the matter before it. In the instant case therefore, the entry of conditional appearances by the 1st and 2nd Respondents was consistent with the conduct of parties who intended to contest the competence of the Petition before the Tribunal. This had to have served notice on both the Tribunal and the Appellant, as well as the other Respondents, as to the direction the 2nd Respondent was going. The question implicit in this issue is whether the 2nd Respondent, at this stage of the proceedings and without filing her Reply to the Petition, could have raised and argued the issue of law challenging the competence of the Petition. This can very simply be answered by an examination of the Election Tribunal and Court Practice Directions which regulate the proceedings before the Tribunal. Paragraphs 1 and 2 of the Practice Directions provide for the filing of the Petition and the Reply or Replies. Paragraph 3 provides for the Petitioner to apply for a pre-hearing notice within a specified period of time, failing which the Respondent should apply. It is only after these processes are before the Tribunal that any issue of law that may have been raised by the parties, can be entertained at the pre-hearing session. Paragraph 3(7)(d) of the Practice Directions sets out specifically the stage at which any objections on point of law may be heard. For clarity of argument, it states:

“3(7) At the pre-hearing session, the Tribunal or Court shall consider and take appropriate action in respect of the following as may be necessary or desirable:

(d) hearing and determination of objections on point of law;”

Therefore, since Election Petitions are sui generis and are guided by a special procedure, in this case the Electoral Act, 2006 and the Practice Directions, 2007, the filing of a Reply to the Petition cannot in any way be considered ‘taking further steps in the proceedings’ which could amount to a waiver of the 2nd Respondent’s right to raise the objection. It was, simply put, the next logical and procedural step which the 2nd Respondent was obliged to take towards receiving a hearing on his objection on point of law. Evidently, without the filing of a Reply, the next stage of the pre-hearing conference would have been totally unwarranted, as the 2nd Respondent would be taken to have conceded to the Petition. In the same vein, the application filed on 16th and heard on 17th July, 2007 was in tandem with the application filed on the 11th June, 2007. It also sought to terminate the Petition on another ground. At the stage when the objection was taken, although pleadings had been concluded, evidence had not been taken. It cannot therefore be said that the 2nd Respondent had taken fresh steps in the Petition that could have foreclosed him from raising the objection. See Baba Bichi V Ahmed Haladu (2004) 1 EPR 587. I therefore completely agree with learned Counsel for the 2nd Respondent that the filing of both the Reply to the Petition and the Motion on Notice of 16th July, 2007, cannot, by the peculiar nature of Election Petitions, be taken as taking further steps in the proceedings which could be construed as a waiver, taking into consideration Paragraph 3(1) and (7) (d) of the Practice Directions. I do so hold.

In point of fact, the very act of having entered a conditional appearance from the onset of the proceedings, which was closely followed up by the filing of the motion on notice in question seeking to dismiss the Petition for non-compliance with the stated provisions of the Electoral Act negate the concept of waiver. Waiver has been defined as the intentional and voluntary surrender or relinquishment of a known privilege or right. It implies a dispensation or abandonment by a party waiving of a right or a privilege which, at his option, he could have insisted upon. See Odua Investment Co. V Talabi (1997) 10 NWLR (Pt. 523) 1 @ 51.

This cannot, by any stretch of the imagination, be ascribed to describe the actions taken by the 2nd Respondent in her efforts at being heard on the objection. She acted promptly and timeously within the provisions of the Rules of Court and the Practice Directions.

In addition to the above, the issue raised in the motion on notice of the 2nd Respondent was a matter which touched on the competence of the Petition before the Tribunal and therefore the jurisdiction of the lower Tribunal to entertain same. It is an elementary but cardinal principle of the exercise of jurisdiction that where the court lacks jurisdiction, the parties cannot confer and vest same on it. It follows from this principle that jurisdiction cannot be acquired by consent of the parties. This principle is fortified by the well settled and basic principle of law that the issue of jurisdiction which determines the competence to exercise jurisdiction by a court or tribunal can be raised at any stage of the trial, even for the first time on appeal. If a court has no jurisdiction to hear and determine a matter before it, any step taken in relation to the matter is a nullity and void. See Adesola V Abidoye (1999) 12 SCNJ 61; Madukolu V Nkemdilim (1962) 1 ALL NLR 587; Shitta-Bey V. A-C of the Federation (1998) 7 SCNJ 264. In the case of Utih & Ors V Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166, this is how Bello, CJN,(of blessed memory), eloquently put it:

“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.

The absence of jurisdiction accentuates the want of legal capacity and competence in the court to hear and determine the subject matter before it. It must be borne in mind that it does not, at this stage of the proceedings, decide any issue as to the rights of the parties in the subject matter of the action. In the absence of jurisdiction, there is no competence to exercise the judicial powers vested in the courts by section 6(6)(b) of the Constitution. Any such exercise of jurisdiction, which is an obvious futility, is a nullity and proceedings and judgment relating thereto are null and void. As aforesaid, jurisdiction cannot be acquired or conferred on the court by the consent of the parties, or because the court was oblivious or mistaken as to the defect in its jurisdiction. See Dongtoe V Civil Service Commission Plateau State (2001) 4 SCNJ 131.

It should however be pointed out that there is a difference between jurisdiction over subject matter and procedural jurisdiction. Procedural jurisdiction could be waived or acquiesced in by the affected party. In the case where the wrong procedure was adopted in commencing a suit and no objection to the procedure was timeously raised by the opposing party, the proceeding based on such wrong procedure is valid. Non-compliance with the rules of court, as against a statutory provision, may not necessarily result in the judgment given in the case being set aside. Ordinarily, once a step is taken in the proceedings by a party complaining about the breach of the rules of court, he is said to have waived the breach. See Kossen (Nig) Ltd V Savannah Bank of Nig. Ltd (1995) 12 SCNJ 29. In the instant case, the issue raised in the 2nd Respondent’s application touched on procedural jurisdiction, i.e. the failure of the Appellant to comply with Paragraph 4(1)(c) of the First Schedule to the Electoral Act which requires him to state the scores of all the contestants in the election. Nonetheless, the 2nd Respondent cannot be said to have waived her right to complain as she quite timeously, in line with the procedure set out in the Practice Directions, raised the objection at the appropriate time. I do so find.

Therefore, in consequence of all the above, I answer this issue also in the affirmative in favour of the Respondents. Ground 5 fails.

Issue three.

Whether the Tribunal was right to discountenance the Appellant’s oral application for extension of time to file his Counter affidavit and Written Address.

It is submitted by the learned Counsel for the Appellant that the Appellant, at the hearing of the 2nd Respondent’s motion on notice, took steps to regularize the irregularity by making an oral application for extension of time within which to file the Petitioner/Respondent’s Counter Affidavit and Written Address out of time. He referred to lines 28 – 32 of page 143 of the Record of proceedings of the lower Tribunal. He therefore complains that the Tribunal was in serious error to have failed to consider and grant the oral application for extension of time in line with the decision of this Court in Nigerian Seed Cotton Co, Ltd V Commerce & Industry Ltd (2002) 1 WRN 67 @ 78. Learned Counsel submits that, even without an oral application, the Tribunal acted wrongly in failing to consider the said documents as, by so doing, it was hanging technicality at the expense of substantial justice. He cited a number of judicial authorities to buttress the submission that the doing of substantial justice ought to be preferred to undue technicalities. He finally submitted that the errors of the Tribunal in not considering the application of the Appellant to regularize the filing of the Counter Affidavit and the Written Address and in adhering to undue technicality at the expense of substantial justice to shut out these documents occasioned a miscarriage of justice to the Appellant.

It is the view of learned Counsel for the 1st Respondent that the submissions of the Appellant’s Counsel here are misplaced and misdirected. He contends that there is nothing in the record of the lower Tribunal to show that the Appellant, at any time, applied for an extension of time by any mode, oral or written. Pages 143 lines 28-32 do not disclose any such application made by the Appellant. Learned Counsel contends that the argument is an importation of a new thing into the record. He therefore asked the Court not to act on same. He argues that since the Appellant has failed to take steps to challenge the record of the Tribunal and in the absence of anything on record regarding any application for extension of time, the case of Nigerian Cotton Seed Co. Ltd V Celtic Commerce & Industry Ltd (Supra) cited is inapplicable.

On his own part, learned Counsel for the 2nd Respondent takes the view that the oral application made by the Appellant is forbidden by Paragraphs 6(1) and (2) of the Practice Directions, 2007 and contravenes Paragraphs 43(4) and (6) of the First Schedule to the Electoral Act, 2006. In addition, no leave of Court was sought and obtained. He therefore submits that it was incompetent ab initio and the Tribunal was right to have discountenanced same. He relied on Magaji V Salat (2004) 8 NWLR (Pt. 876) 449 @ 479. He argues that granting such an application at the stage it was made would have breached the 2nd Respondent’s right to fair hearing as it would have overreached the Respondents. In addition, it is his submission that an application for an extension of time is not granted gratuitously or as a matter of course. The applicant is required to adduce cogent and convincing reasons why the exercise of the Court’s discretion should be in his favour. In the instant scenario, no reason whatsoever is adduced except for what the Applicant referred to as ‘interest of justice”. He argues that the interest of justice is satisfied once justice is administered according to law. He relied on the case of Magaji V Salat (Supra) 449 @ 478 – 479 to submit that Election Petitions are sui generis. Finally, learned Counsel urged the Court to hold that all the cases cited by the Appellant on the issue of technicality do not apply to this Appeal, and therefore that the lower Tribunal was right to have ignored the Appellant’s oral application for extension of time to file his Counter Affidavit and Written Address. He thus prayed the Court to answer this issue in the affirmative.

Without much ado, it bears pointing out from the onset that the Appellant herein is in grave error to canvass under this issue that the lower Tribunal refused its oral application to regularise his processes before the Court when no such application was ever made. The law is trite that we are bound by the record of the Court. Where however, in the very unlikely and seldom event, a party disputes the veracity and/or accuracy of a record, he is required to contest the said record via a laid down procedure. Since the Appellant herein has made no pretext at expressly contesting the record, (and this, of course, cannot be done by implication), we shall here be bound by the transcribed record of the lower Tribunal as to what transpired before it in this regard. It is true that learned Counsel for the Appellant, in responding to the 2nd Respondent’s motion to dismiss the Petition, admitted upfront that the Counter Affidavit was filed out of time. See page 143 lines 27-28. Thereafter, learned Counsel made no further mention of the status of the Counter Affidavit, which admittedly was filed out of time. I have very carefully scrutinised the said record, especially lines 28-32 of page 143 referred to by learned Counsel for the Appellant and have found nothing whatsoever to bear out his assertion that Counsel orally applied to the lower Tribunal to extend the time to file the Appellant/Respondent’s Counter affidavit and Written Address. Since that is so, he cannot be heard to complain, as he has sought to do, that the lower “Tribunal was in serious error to have failed to consider and grant the Appellant extension of time on an oral application …” This state of affairs is not only misleading, it is unethical. Learned Counsel, as a Minister in the Temple of justice, exists, among other noble reasons, to assist the Court in a just and fair determination of the matters before it. As a Solicitor and Advocate of the Supreme Court of Nigeria, he is first and foremost an officer of the Court, and this responsibility must never be taken lightly. I agree completely with learned Counsel for the 1st Respondent that the arguments of learned Counsel pertaining to this issue is an attempt to import new facts into the record of the lower Tribunal. This will not be allowed. However, my astonishment further lies in the fact that learned Counsel for the 2nd Respondent, in his Brief of Argument, addressed the purported but non-existent oral application for extension of time. He is obviously mistaken and has been misled. In the light of the fact that there was indeed no such application, oral or written, before the Tribunal, no further energy will be dissipated on this arm of the issue, save to completely agree with the well articulated findings of the Tribunal at pages 151-153 of the record which state inter alia thus:

We also observe that the Respondent in this application did not also (sic) apply for leave of the Tribunal for an extension of time to comply with the above stated provision of the Practice direction before filing same out of time… The Petitioner/Respondent did not deem it fit to apply for extension of time to file the counter affidavit or the address until the motion was moved, nor did he through his counsel apply for such extension of time even after it became very apparent in the course of hearing this motion… We are however of the considered view that a liberal interpretation of the provisions of paragraph 6(4) of the Practice direction will only be considered where there is an application before the Tribunal for an extension of time to file the processes envisaged by paragraph 6(4) of the Practice Direction as at the time of considering the application to strike-out the Petition… However, in the present case, there is no such application made by the Respondents, who are admittedly, out of time, to file their Affidavit and or written address. To this end, the Affidavit/Written Address filed by the Petitioner/Respondent in opposition to the 2nd Respondent’s application is incompetent. ”

Needless to say, the Tribunal is not a benevolent ‘Father Christmas’. It cannot grant what has not been asked of it. Such would amount to nothing but a descent into the arena to get bloodied by the steel armoured gladiators. It is very heartening that the Tribunal did not succumb to the temptation to so do.

Learned Counsel for the Appellant has also hinged this issue on the need to do substantial justice at all times between parties. While totally endorsing the concept of doing substantial justice as opposed to technical justice, it is my view that the Appellant is totally out of line when he asserted in his Brief that:

“…the errors of the Tribunal in not considering the application of the appellant to regularize the filing of the Counter-Affidavit and Written Address and in adhering to undue technicality at the expense of substantial justice to shut out the Counter Affidavit and written Address occasioned a miscarriage of justice on the appellant as the Tribunal by its errors denied itself the opportunity to consider the merit of the appellant’s case thereby denying the appellant fair hearing.”

As I have pointed out earlier, no such application was made before the Tribunal to afford it the opportunity of doing substantial justice and therefore extending time to bring in the Counter Affidavit by the invocation and application of Paragraph 43 of the First Schedule to the Electoral Act. The reference to the said “application” to regularise is nothing but a phantom application in the face of its conspicuous absence in the record of the Tribunal. Much as I totally support the call on Tribunals not to rely heavily on technicalities to the detriment of serious issues needing scrutiny and determination, each case must be considered in its context, on its own merit and in relation to how the matter could be resolved without doing violence to the law cum rules of court, and, more importantly, without overreaching the other parties before the Tribunal. In other words, an equitable balance must be struck. The cases of Anochie V Obichere (2004) 1 EPR 406 and Nwole V Iwuagwu (2004) 1 EPR 682 are distinguished from the instant case in that those Petitions dealt with the issue of joinder of parties which this Court found were not necessary parties in the determination of the Petitions. In the circumstances of this case, I find no reason to disturb the finding of the Tribunal in this regard. This issue is therefore also answered in the affirmative. Ground 4 fails.

Issue Four.

Whether in determining the 2nd Respondent’s motion filed on 11th June, 2007, the Tribunal ought to have taken into consideration the Counter Affidavit, Exhibits and Written Address attached thereto filed by the Petitioner.

It is submitted by learned Counsel for the Appellant that the Tribunal erred in discountenancing the facts deposed to in the Appellant’s Counter affidavit and the Exhibit A attached thereto on the grounds that: (1) they are extraneous, (2) the attached documents were not made available at the time of filing the Petition, (3) the Exhibit ‘A’ violated Sections 109-112 of the Evidence Act and (4) same is not signed by an official of the 3rd Respondent. While conceding that the Court can consider the Petition and the Replies thereto, (which constitute pleadings), in the determination of the motion, learned Counsel contended that the Court cannot shut out the Counter Affidavit filed as an extraneous matter. He argued that the focus of the Tribunal was the non-compliance with Paragraph 4(1) (c) of the First Schedule to the Electoral Act and not the Petitioner’s locus standi or cause of action. He argued that the nature of the objection raised by the 2nd Respondent can be fought on affidavit evidence. It is further learned Counsel’s submission that neither the Electoral Act, 2006 nor the Practice Directions, 2007 make it mandatory for the Petitioner to file documents, such as Exhibit ‘A’, along with the Petition. All the Practice Directions require by Paragraph 1(1) (c) is for the copies or a list of documents. While conceding that Exhibit A and A1 are Public documents issued by the 3rd Respondent pursuant to Section 72 of the Electoral Act, learned Counsel submits that the documents attached to an affidavit cannot be objected to until the hearing of the Petition and not at the stage of hearing the interlocutory application. In the same vein, he submits that, since the document was issued by the 3rd Respondent pursuant to Section 72 of the Act, the absence of the signature of an official of the 3rd Respondent will not affect its use at this stage. He relied on a plethora of authorities, chief amongst which were Davies V Mendes (2007) ALL FWLR (Pt. 348) 883 @ 901; Saraki V Kotoye (1990) 6 SCNJ 31 @ 65 and Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 @ 735. Learned Counsel therefore contends that the errors of the Tribunal in this regard have occasioned a miscarriage of justice. He argues that if the Tribunal had considered the said exhibits, it would have discovered that it was impossible for the Appellant to have complied with Paragraph 4(1)(c) of the Electoral Act which requires him to state the names and scores of all the candidates at the elections. It would therefore have had to refuse the 2nd Respondent’s application to strike out the application for non-compliance with Paragraph 4(1)(c) thereof, as the law does not expect a party to do the impossible. Finally on this, learned Counsel complains that the lower Tribunal failed to consider all the arguments and authorities cited by the Appellant’s Counsel. He cited a multitude of authorities in this regard. If it had done so, the Tribunal would have realised the practical implications of allowing the Respondents to take advantage or benefit of the unlawful and illegal conduct of the 3rd – 5th Respondents in not declaring/announcing the names and scores of the candidates at the election and in not giving copies of the results to the candidates or their agents. He relied on Sanni Ibrahim V INEC (2005) 3 EPR 50. Learned Counsel therefore urged the Court to hold that the error of the Tribunal in striking out the Petition without giving consideration to the Counter Affidavit and the exhibits A and A1, as well as the oral and Written addresses of the Appellant and pronouncing on the arguments proffered and the authorities cited by Counsel, occasioned a miscarriage of justice and so, renders the trial a nullity. Under this issue, learned Counsel for the 1st Respondent submits that the lower Tribunal indeed considered and gave reasons why Exhibits A and A1 were inapplicable and this is borne out by lines 6-21 at page 150 of the Record. He gave instances where the Court very specifically considered the arguments of the Appellant in his Written Address and either agreed or disagreed with them. Even if the converse were the case, learned Counsel submits that this has not occasioned a miscarriage of justice in view of the finding of the Tribunal that it is the Petition that is paramount in the determination of the 2nd Respondent’s application and not the counter affidavit which is in the form of evidence. He urged the Court to resolve this issue in favour of the Respondents.

Learned Counsel for the 2nd Respondent, (the initiator of the motion in contention), submits that the objection raised in the Motion on Notice of the 11th June, 2007 was an objection on point of law which challenged the competence of the Petition and thus the jurisdiction of the Tribunal to adjudicate upon same. He submits that the law is trite that the court would have recourse only to the Petition itself to determine whether or not the Petition is competent before it. He relied on a plethora of authorities to buttress this submission, chief amongst which are: Adesokan V Adegorolu (1991) 3 NWLR (Pt.179) 293 @ 305 – 306; Owodunni V Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 @ 354-355; Nkuma V Odili (2006) 6 NWLR (Pt. 977) 587 @ 608. Learned Counsel therefore urged the Court to hold that the Counter Affidavit of the Appellant, together with the documents attached thereto, is extraneous to the objection and was rightly excluded by the Tribunal. He however pointed out that the Tribunal, ex abundanti cautela, (at pages 149 – 150 of the record), proceeded to consider the said documents and found them inadmissible. This therefore takes the steam out of the argument. Learned Counsel urged the Court to hold that, even if the Tribunal did not consider the Counter Affidavit of the Appellant and the attached exhibits, no miscarriage of justice would have been occasioned because these processes could not have added to the content of the Petition. Besides this, the processes were not filed within time, as has been conceded by the Appellant’s Counsel, and the latter chose not to proceed under Paragraph 43 of the First Schedule to the Electoral Act to regularize his processes. Learned Counsel contends that such a person cannot now complain of lack of fair hearing. Hence, he urged the Court to answer this issue in the negative and to dismiss Grounds 6 and 7 of the Grounds of Appeal.

The 2nd Respondent’s motion on notice before the lower Tribunal dated 11th June, 2007 sought for an order:

(a) striking out the petition for want of jurisdiction,

(b)And for such other order or further orders which the Tribunal may deem fit to make.

GROUNDS OF THE APPLICATION.

1. The petition does not disclose the scores of the candidates at the election.
2. Strict compliance with the provisions of paragraph 4(1) of the first Schedule is a condition precedent to (sic) competence of the petition.
3. The petition is incurably defective and the Tribunal lacks jurisdiction to adjudicate on it.

Cutting out all other diversionary issues, the crux of this issue is whether, in determining the objection which contested the competence of the Petition before the Tribunal and therefore the jurisdiction of the Tribunal to entertain same, the Tribunal ought to have given consideration to facts stated in the Appellant’s Counter Affidavit in conjunction with the averments in the Petition. In other words, whether the Counter Affidavit and exhibits annexed thereto are intrinsic, (as opposed to being extraneous), to the determination of the competence of the Petition before the Tribunal. It is a basic principle of law that the jurisdiction of a court is very fundamental to the adjudication of the matter before it. It is so radical that it forms the foundation of adjudication. If a court lacks jurisdiction, it lacks the necessary competence to entertain the claim before it. That is why the issue of jurisdiction, where raised, whether by the parties or by the court itself, suo motu, must be determined in limine. Where an objection is raised to the jurisdiction of the trial court to try an action, the court, at that stage, has to enquire into whether in fact it possesses the requisite jurisdiction to so proceed. See Oloba V Akereja (1988) 3 NWLR (84) 508; Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 715. It is settled law that it is only the plaintiff’s claim that determines the question of the court’s jurisdiction. Therefore, in considering whether the court has jurisdiction to entertain an action, it is the plaintiff’s claim as endorsed on the Writ of Summons, and the Statement of claim, (where filed), that the court has to consider and not the defence. The judicial authorities are legion in this regard. See Aremo V Adekanye (1994) 7 SCNJ 218; Aladegbemi V Fasanmade (1988) 3 NWLR 129; Adeyemi V Opeyori (1976) 9-10 SC 31; Ege Shipping & Tradition Ind. V Tigris International Corp. (1999) 14 NWLR 70 @ 89; Warri Refining & Petrochemical Co. Ltd V Onwu (1999) 2 NWLR 312 @ 326. Where pleadings have been filed, the issue of the court’s jurisdiction is best determined from the averments in the plaintiff’s Statement of Claim. Where this is not the case, the court has to look only at the claim as endorsed in the Writ of Summons. This is a fundamental principle of law that brooks no argument. See Edjerome V Ikine (2001) 12 SCNJ 184 and Akinfolarin V Akinnola (1994) 4 SCNJ 30;

It is my humble opinion that, in the instant case, considering the peculiar nature of Election Petitions, it is the Petition of the Appellant, which states the claim of the Petitioner and therefore serves as the Writ of Summons cum Statement of claim, that must be examined via a magnifying glass, and no other document, in order to determine the jurisdiction of the Tribunal to adjudicate over same. The over-celebrated ‘Counter affidavit’ merely seeks to introduce facts which have no place in or bearing on the determination of the objection on point of law. It is quite apparent from the point of law raised in the motion on notice that the substance of the objection to the hearing of the Petition was rooted in the Appellant’s Petition itself. As such, neither the affidavit in support of the motion nor the counter affidavit opposing same played any vital role in the determination of the application as clearly shown in the Ruling of the Tribunal being appealed against. Therefore, the failure of the Tribunal to acknowledge the Appellant’s counter Affidavit and rely on same did not occasion any miscarriage of justice, because the substance of the grounds in support of the motion were derived from the body of the Appellant’s Petition itself. See ANPP V INEC (2004) 1 EPR 710. Thus, I totally endorse the finding of the lower Tribunal that the said Counter Affidavit is completely extraneous to the determination of the objection. In the same vein, the Written Address of Counsel to the Petitioner attached to the Counter affidavit could not have been anymore useful as it is similarly not a vital document to be considered in the determination of jurisdiction. In the light of all the authorities on the subject, the finding of the lower Tribunal cannot be faulted. In view of this, the issues of the non-certification and non-signing of the Exhibits A and A1 attached to the Counter affidavit have become academic. This Court, not being an academic institution, I decline to go into them. Consequently, I answer this issue in the negative. Grounds 6 and 7 therefore fail.

Issue Five.

Whether the Tribunal was right in striking out the Petition having regard to all the circumstances of the case.

Learned Counsel for the Appellant concedes upfront that, by virtue of Paragraph 4(1)(c) of the First Schedule to the Electoral Act, the Petitioner has the duty to state the names and scores of all candidates at the election. He adds however that it is the non-compliance with same without any reason that renders the Petition incompetent and liable to be struck out. He drew a contrast between the cases of Dickson V Salat (2004) ALL FWLR (Pt. 215) 256 and Ibrahim V INEC (2007) 4 EPR 50 @ 73. He argues that Paragraphs 9 and 10 of the Petition explains the reason for the Appellant’s inability to fully comply with Paragraph 4(1)(c) of the First Schedule. These Paragraphs show that the omission on the part of the Appellant arose from an impossibility foisted on the Petitioner by the 3rd – 5th Respondents’ deliberate infractions of the provisions of Sections 75, 130(1) and 138(a) of the Electoral Act. He submits that the Tribunal recognised the fact that paragraphs 9 and 10 of the Petition successfully explained the reasons for the Appellant’s non-compliance with a part of Paragraph 4(1)(c) of the First Schedule to the Act, however it found a supposed contradiction between paragraphs 9 and 10 of the Petition on the one hand and paragraph 12(12) thereof. Taking the definition of contradiction given in judicial authorities, learned Counsel submits that “a piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated”, not when there is just a minor discrepancy between them; that two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor difference in details.” He relied on Agbo V the State (2006) ALL FWLR (Pt. 309) 1380; Gabriel V State (1989) 5 NWLR (Pt. 122) 457. He argues therefore that paragraph 12(12) of the Petition did not contradict paragraphs 9 and 10 thereof since it does not aver that the 3rd – 5th Respondents released or announced the names and scores of candidates at the election. He drew a distinction between recording of votes, (either lawful or unlawful votes), and announcing of results containing the votes so recorded and giving copies to the candidates at the election or their agents. He argues that a combined reading of Sections 16, 70, 74 and 75 of the Electoral Act, 2006 and the Guidelines issued by the 3rd Respondent for the conduct of the elections reveals that ‘recording’ of votes is not the same as declaring and announcing the Result (votes recorded) and giving copies of the result so declared to the candidates or their agents. Since the practice of the interpretation of statutes has been held to be the same as that of the interpretation of documents, he submits that a court is not to engage in strained interpretation of the words used. He relied on Ogbonna V AG Imo State (1992) 2 SCNJ 26 @ 58. Learned Counsel contends that the interpretation the Tribunal placed on paragraph 12(12) of the Petition amounts to a strained interpretation. He submits that the finding of the Tribunal on this is therefore perverse and it occasioned a miscarriage of justice.

Learned Counsel further contends that, by striking out the Petition in the face of Paragraphs 9 and 10 thereof, the Tribunal has condoned the infractions of Sections 75, 130(1) and 138(a) of the Electoral Act by the 3rd – 5th Respondents. In addition, it has allowed the Respondents to take advantage or benefit from their own unlawful and illegal act or conduct. This, he submits is not allowed under the law. Learned Counsel further submits that by paragraphs 9 and 10 of the Petition, the Appellant not only disclosed extenuating circumstances which made it impossible for him to state the names and the scores of the candidates at the election, but also disclosed the conduct of the 3rd – 5th Respondents, which he contends is in complete disregard of the Electoral Act, 2006, including the requirement of the Petitioner’s entitlement to copies of the result declared. He argues that the errors of the Tribunal in this regard have occasioned a miscarriage of justice. He distinguished the case of Khalil V Yar Adua (2004) 1 EPR 747, and others of the same nature relied upon by the Tribunal in its decision, from the facts of this case. Learned Counsel argues that the conduct of the 3rd – 5th Respondents in not declaring/announcing the names and scores of candidates at the election and in not giving copies of the Result to the candidates or their agents throws up a new challenge to the Electoral system, and this Court as well as the Tribunal, as courts of justice, have the duty to do justice at all costs. He relied on Okike V L.P.D.C (2005) 3 – 4 SC 49 @ 81 – 83; AGF V Atiku Abubakar (2007) ALL FWLR (Pt. 375) 405 @ 546. Finally, learned Counsel submits that in the circumstances of this case, the Tribunal ought to have invoked the provisions of Paragraph 49(1) of the First Schedule to the Electoral Act, to make the necessary order that will ensure justice is done at all costs, instead of allowing the Respondents to take advantage of their unlawful conduct. He urged the Court to allow the Appeal on this issue.

Under this issue, learned Counsel for the 1st Respondent contends that a community reading of paragraphs 9, 10 and 12 of the Petition as well as the entire Petition reveals that the Appellant was aware that other candidates contested the election and that, as is alleged by him, arbitrary votes were awarded to the candidates. He therefore deliberately refused and/or neglected to reflect these arbitrary votes. He argues that the only inference that can be drawn is that the requirements of Paragraph 4(1)(c) were available and known to the Appellant before the filing of the Petition and he chose not to use it. It is his contention that the Tribunal was right when it relied on the cases of Khalil v. Yar Adua (Supra) and others on the subject as the facts are on all fours with the Petition before it. He urged the Court to resolve all the issues against the Appellant and to dismiss the Appeal with substantial costs.

On his own part, learned Counsel for the 2nd Respondent argues that the Appellant did not state the names of the other parties who contested the election and he failed to specify the votes scored or recorded for them, except that of the 151 Respondent. By the authority of Khalil V Yar Adua (2003) 16 NWLR (Pt. 847) 446 @ 486 – 488 and Ojong V Duke (2003) 14 NWLR (Pt. 841) 581 @ 618, he submits that the provision of Paragraph 4(1) of the First Schedule is mandatory and strict compliance is required of the Appellant. Counsel urged the Court to hold that, notwithstanding the averments in paragraphs 9, 10. 12(11) and 12 (12) of the Petition, the Petition is liable to be struck out for failing to comply with Paragraph 4(1)(c) of the First Schedule. He contends that the submission of the Appellant at page 27 of his Brief of Argument borders on the introduction of sentiments into the issue. Since the Petition was filed 30 days after the election, the Petitioner had ample time to get all his facts if he wanted to. He contends that no creation of a legal impossibility exists in the situation painted by the said paragraphs of the Petition. Nowhere in the Petition has the Petitioner alleged that he applied to INEC for a copy of the form for declaration of result after the election and his application was denied. On the invocation of the legal maxim that a person cannot benefit from his own wrong, Counsel submits that the allegations in the said paragraphs 9, 10, 12(11) and 12(12) of the Petition are not made against the 2nd Respondent who filed the application that led to the striking out of the Petition. He therefore urged the Court to answer issue 6 in the affirmative and to dismiss the Appeal on Grounds 8, 9, 10 and 12.

In considering the merit of the application filed by the 2nd Respondent, the Tribunal, quite rightly in my view, centred on the Petition itself to determine the level of compliance with the requirements in Paragraph 4(1) (c) of the First Schedule to the Electoral Act. Its focus of attention in particular was paragraphs 9, 10 and 12 (12) of the Petition. For case of reference, the said paragraphs are set out hereunder:

9. “Your Petitioner avers that at the end of the election and in the latter part of the 15th April, 2007, the 4th and 5th Respondents announced the results of the election and wrongfully and unlawfully returned the 1st Respondent as the elected member of Kwara State House of Assembly having purportedly scored him 74,905 votes as against the petitioner and other co-contestants who have no result at all.
10. Your petitioner states that neither the names nor the votes scored by the other candidates of parties other than the PDP was announced or released by the 5th, 4th and 3rd respondents.

12(12). Your Petitioner avers that the vote recorded for the candidates in the election do not represent the lawful votes cast at the said election as votes were most often arbitrarily awarded to actualized the phantom victory intended or designed for the 1st respondent prior to the conduct of the election. ”

The lower Tribunal cannot be faulted in its stark statement of the law in this regard at page 156 of the record as follows:

‘We are of the view that by virtue of the provision of paragraph 4(1)(c) of the 1st Schedule, which require (sic) the Petitioner to state the scores of the candidates, it becomes incumbent on the Petitioner to categorically state the number of candidates at the election and their scores… We hasten here to state that while there is no obligation on the Petitioner to join other candidates who were losers at the election in an election petition, he is however bound to state names or Political Parties of the said candidates who participated in the elections in his Petition and their scores. ”

It is indeed unreservedly mandatory for a Petitioner to state in his Petition the holding of the election, the scores of the candidates, including those of the candidates who lost the election and the person returned as the winner of the election. While there is no obligation on the Petitioner to join any candidate who lost an election as a party, the petitioner has a duty to comply with the provisions of Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006, by stating among other particulars, the names and scores of all the candidates that participated in the election. See Engineer Khalil V Alhajj YarAdua (supra). Even the Appellant has acknowledged this much in his submissions. The raison d’etre for this is that, where in an Election Petition a Petitioner fails to plead the scores of all the candidates at the election, it will be impossible to grant any prayer that the Petitioner was the duly elected candidate or that the 1st Respondent was not the duly elected candidate. See Magaji V Salat (2004) 8 NWLR 449. For the avoidance of doubt, the provision of Paragraph 4(1)(c) of the First Schedule is indubitably a condition precedent to the filing of an Election Petition. Any Petition which fails to comply with same is incompetent and is liable to be struck out pursuant to Paragraph 4(6) of the same Schedule

Having said that, the bone of contention here however is, whether extenuating factors exists why the Appellant could not comply with the requirement of the law and whether same can avail him. It must be borne in mind that there can be no wholesale application of the decided authorities on this point, such as the cases of Khalil V Yar’Adua (supra), Ojong V Duke (supra), Sanni V INEC (supra), etc, unless they are found to be on all fours with the facts stated herein. It is the contention of the Appellant’s Counsel that paragraphs 9 and 10 of the Petition adequately explains the reason why he was unable to comply with the mandatory requirement of setting out the names of and votes scored by the other contestants, including those scored by him. The lower Tribunal however, on a closer examination of the Petition, latched onto paragraph 12(12), in addition to paragraphs 9 and 10 thereof. In a considered decision thereon, the learned Judges took the view that, in spite of paragraphs 9 and 10, which they agree expressly state that no results/votes scored were announced and/or released for the other co-contestants, except that of the 1st Respondent, going by paragraph 12(12) of the Petition, the Appellant had admitted that votes were recorded for the other contestants. Therefore, they found that by virtue of Paragraph 4(1)(c) of the First Schedule, the Appellant was bound to state the said “votes recorded” even if they did not represent the lawful votes cast at the said election as alleged in the said sub-paragraph of the Petition. With the greatest respect to the learned Judges on the Tribunal, I am of the view that having highlighted what they found as a contradiction in terms between paragraphs 9 and 10 on the one hand and paragraph 12(12) on the other, they should have allowed evidence to be led thereon before taking such a final decision on it. The issues raised in those paragraphs touched on the substantive Petition. Therefore, the pre-trial stage was an inopportune and inappropriate juncture to look into it.

Further to this, it has long been established, and courts have always observed the practice that the principles of interpretation of statutes are the same as that in the interpretation of documents. See Ogbonna v. A.G Imo State (1992) 2 SCNJ 26. In the interpretation of statutes, where clear and unambiguous words are used, the courts apply the golden rule of interpretation which requires such simple words to be given their natural, simple and literal meaning. See Unguwar Garji v. Unguwar Garji (2007) ALL FWLR (Pt. 346) 494 @ 495. In construing a document, the ordinary rules of construction counsel and dictate the reading of the related paragraphs of the document together, as well as reading the document as a whole. It is wrong to simply take one paragraph in isolation. See Matari V Dangaladima (1993) 2 SCNJ 122. To do so would amount to reading a document out of context and therefore the possibility of arriving at a connotation not intended by the maker of the document is heightened. On a surface or cursory look at that sub-paragraph, one may indeed be tempted to give the interpretation ascribed to it by the Tribunal when read in isolation. However, a proper examination would reveal that the slant taken on the meaning of the sub-paragraph may not be entirely correct. At best, the sub-paragraph is subject to an ambivalent interpretation. The “vote recorded”, having not been qualified or specified, could as well refer to votes recorded at the various individual polling stations. In relation to paragraphs 9 and 10, paragraph 12(12) could also be taken to mean that, as stated in those paragraphs, the 151 Respondent was scored 74, 905 votes while the other co-contestants had no results (scores) at all announced/recorded/released for them. The fact that the sub-paragraph states “vote recorded” does not by itself be equated to mean that final figures or scores were ascribed to the co-contestants apart from the 1st Respondent. Yet again, the said “vote recorded” on a literal and plain interpretation and in the context of paragraphs 9 and 10, could refer to the votes of the 1st Respondent recorded. Indeed, in the face of the express averments in paragraphs 9 and 10 that no results for the other co-contestants were announced and released by the 4th and 5th respondents except that of the 151 Respondent, it is surprising that the Tribunal preferred to incline to a constricted interpretation that would tend to shut out the Appellant from being heard on the merit of his Petition. The very fact that the said paragraph 12(12) is ambiguously phrased and may be subject to different interpretations, should have alerted the Tribunal to have given it a community reading with paragraphs 9 and 10 in arriving at its decision. The controversy raised by these paragraphs is a matter that can be well addressed at the hearing of the Petition on its merit and not at the interlocutory stage of proceedings. It cannot be over-emphasized that Courts must always strive for the ideal of doing substantial justice rather than technical justice. The Petitioner has expressly stated in his Petition that the 4th and 5th Respondents failed to ascribe votes scored to the other contestants except for the 1st Respondent. In addition, he alleges that the final result was neither announced by the said Respondents, (whose statutory duty it is to do so), nor was he given a copy of the result so declared as the Electoral Act has provided. These infractions of the Act have been criminalised by Section 130(1) thereof as they carry a penalty of a fine and/or a term of imprisonment for the offending official. All these are matters that are worth examining to see if justice was served in the conduct of the election. Instead, the Tribunal took the inopportune option of striking out the Petition in limine, thus driving these serious and scandalous allegations underground. It cannot be over-stated that Tribunals need not rely heavily on technicalities to the detriment of the serious issues needing scrutiny and determination. In a situation where very grave allegations are made by the other party, to shut him up does much harm to the cause of justice. See Oworu V INEC (1999) 10 NWLR (Pt. 622) 201 @ 212-213; Anozie V Obichere (supra). The trend these days is to, as much as possible hear Election Petitions on their merit, where such Petitions can be saved. This has been the consistent position of courts of justice and equity over the years as is attested to by Uwais, CJN, (as he then was), in the case of Jim Nwobodo V Onoh (1984) 15 CNLR 1 @ 95 thus:

“Election Petitions are by their very nature peculiar from other proceedings and are very important from point of view of public policy. It is the duty of courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction. In the instant case, the appellant’s petition was competent, the Tribunal was wrong to have struck it out prematurely without allowing it to prove the grounds relied upon.”

It is apposite to also refer to the astute observation of Lord Fletcher Moulton C.J. in the English case of Dyson V Attorney-General (1911) 11 KB 410 @ 419.

‘To my mind, it is evident that our judicial system would not permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to be heard except in cases where the cause of action was obvious and almost incontestably bad. ”

Finally, Pats-Acholonu, JSC (of blessed memory), in his most inimitable way, put the matter to rest in the case of Buhari V Obasanjo (2004) 1 EPR 160 @ 214:

“The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality or out-moded or in-comprehensible procedures and immerses itself in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.”

As much as possible, but even more so, in Election Petitions which involve a quest for adjudication as to the competence of the Election, it must be stressed that every minute matter should be given due consideration so that, in a desire to handle the matter expeditiously, there may not be a tendency to be over-technical in our approach. A wide berth should be given to parties and, as much as possible, it should be encouraged that Election matters be canvassed on their merits, except for where there are obvious and manifest irregularities or glaring incompetence. In the instant case, where the Petition is competent but for paragraph 12(12) thereof which, if anything at all, is either an obscure point or at best ambiguous and subject to more than one interpretation, the Tribunal would have done well to have allowed the Petition to go on to trial on its merit. As long as there are other areas worth looking into, it behoves a Tribunal to choose the option of saving the Petition, and if the Petition has to fail after due trial and the application of the stipulated tests, then it is welcome to such an eventual end. However, as much as possible, where an enactment or a document is subject to more than one interpretation, courts are advised to adopt a liberal interpretation, in other words an interpretation which as, much as possible, saves the proceedings before it. Also, where the words of an enactment, and in this case, of the averments in paragraphs 9 and 10, are clear, courts are enjoined to give them their literal and grammatical meaning.

Upon a close examination of paragraphs 9 and 10 of the Petition, I agree with learned Counsel for the Appellant that the non-compliance with paragraph 4(1)(c) of the First Schedule by the Appellant is explained. It is alleged to be a matter beyond his control. By Section 72 of the Electoral Act, 2006, the Commission shall cause to be posted on its notice board and website, a notice showing both the candidates at the election and their scores, as well as the person declared as elected or returned at the election. Section 75 goes further to make it mandatory that a copy of the results completed at the State level be given to the polling agents of the candidates/parties. Sanction for non-compliance with these provisions is set out in Section 130(1) of the same Act which penalises and criminalizes same. The contravention of these provisions of the substantive law seems to be the crux of the Appellant’s complaint in paragraphs 9 and 10 of the Petition. To now say that because the very result which he has expressly stated, (rightly or wrongly), was not released or announced by the officials of INEC, has not been stated in his Petition and therefore he cannot be given a hearing, smacks of a scenario where, in our local vernacular is translated to mean “to beat a child and to deny him the right to cry”. In other words, it smacks of injustice and even oppression. Where no results, except that of the 1st Respondent, were released, it is surely unreasonable and perverse to demand same from a party who is yelling at the top of his lungs, protesting this same denial and violation of his rights. In the circumstance, it is only just and fair that the Appellant be given a hearing. Without intending to pre-judge the outcome of the Petition, the principle of law is that no one can take advantage of his own wrong. In other words, a party, (in this case, the 3rd-5th Respondents), should not be allowed to benefit from their own wrong, if proved. The Latin maxim being Nullus commodum capare potest de injuria sua propria. See Civil Design Construction Nig. Ltd vs SCOA Nig. Ltd (2007) ALL FWLR (Pt. 363) 1 @ 64; Adimorah V Ajufor (1988) 6 SCNJ 18; Ajibade V. Pedro (1992) 5 NWLR (Pt. 241) 257; (1992) 6 SCNJ 44. Therefore, having regard to paragraphs 9 and 10 of the Petition, it is clear, at least to me, that the Petitioner did not only disclose extenuating circumstances which made it nigh impossible for him to state the names and scores of the candidates at the election, but also that the conduct of the 3rd – 5th Respondents, if proved, would be in complete disregard of the provisions of the Electoral Act which expressly require that the Petitioner be given copies of the Result declared. I strongly disagree with learned Counsel for the 2nd Respondent who wonders whether the Appellant applied for and was denied a copy of the result by INEC. The question is, by the applicable law, is it the duty of the party to demand for the results or is it incumbent on INEC to first carry out its duty of delivering the results in detail to all the agents of the parties and announcing same? This is the core of the Appellant’s complaint in his Petition, of which, I am firmly of the belief he should be given a hearing. A situation where a body, which is supposed to be an impartial umpire, is accused of selectively bestowing favour on one party against another must be very strongly deprecated. However, this is a matter for another day. One earnestly hopes that this is not what transpired in the instant case. INEC, and all its officials acting on its behalf, must take extra and special care to scrupulously adhere to all the provisions of the law that pertain to elections. Transparency must be the watchword to provide a level playing field for all comers. Ours is a bourgeoning democracy and nothing untoward should be done to destabilise this upward and aggressive progression of the nation to join the comity of nations in the so-called first world. All must stand up to be counted in this phenomenal and formidable but very worthy effort.

I entirely agree with the Appellant that a new dimension has been introduced into the polity which throws up a challenge to the Electoral system, as well as to the Tribunals and Courts which have an obligation to do justice at all costs. This new element seems to be the question of what happens where situations are manipulated which make it impossible for parties to comply with Paragraph 4 of the First Schedule to the Electoral Act, as is alleged to have happened in the instant case? The challenge of meeting the unique challenges that present in the practical application of the Rules and the Electoral Act is one that must not be shirked by our courts. The Nigerian Judiciary must rise to such challenges like a Phoenix and attend to them with all vigour, dynamism and courage. This was the admonishment of the Apex Court in the very celebrated case of A.G.F. & Ors V. Alh. Atiku Abubakar (2007) ALL FWLR (Pt. 375) 405 per Aderemi JSC at page 546:

‘The crucial task here is to interpret the relevant provisions of the Constitution that have been referred to by the parties. It has been said in one of the briefs before us that the case at hand is, by every standard, a novel one. I entirely agree, given the facts of this case and the little research I have carried out I have not come across any judicial decision relating to the peculiar facts of this case. But no legal problem or issue must defy legal solution. Were this not to be so, the society, as usual, will continue to move ahead, law, God forbid, will then remain stagnant and consequently become useless to mankind. With this unfortunate consequence at the back of his mind, a judge, whenever faced with a new situation, which has not been considered before, by his ingenuity regulated by law, must say what law is on that new situation after all, law has a very wide tentacle and must find solution to all man-made problems. In so doing, let no man regard himself as making law or even changing law. He (the judex) only declares it (the law) – he considers the new situation, on principle and then pronounces upon it. To me that is the practical form of the saying that the law lies in the breast of the Judge. ”

This is a very profound and deeply reflective statement from the highest court in the land. Judges can do no less but rise to the fresh and new challenges of today. They must do their utmost and courageously dig deep into the abundance of their experience in adjudication to do justice where, on the face of it, there appears no way out. It is a clarion call which all self-respecting Judges must heed. All hands must be on deck to assist our bourgeoning democracy as it gallantly continues in its efforts at sustaining and building on the democratic pillars already erected in past exercises. A situation where parties perceive the bestowing of preferential treatment of one party against the other must be denounced and reversed. In the conduct of elections, perception is everything, Transparency and a strict application of the laws, rules and guidelines governing elections will go a long way into instilling confidence in the system and ensuring a level playing field for all comers. For all the reasons stated above, this issue must necessarily be answered in the affirmative in favour of the Appellant. The learned Judges of the lower Tribunal were in error to have struck out the Petition having regard to the facts and circumstances of this case as disclosed in the Petition. Grounds 8, 9, 10 and 12 succeed.

In the result, the Appeal succeeds. The Ruling of the lower Tribunal striking out the Petition is set aside. The Petition is hereby sent back to the Tribunal for hearing on its merit. The Appellant is entitled to the costs of this Appeal in the sum of N40,000.00.

Appeal allowed.

---

Other Citations: (2008)LCN/2684(CA)