Akunne C. Ozobia V. Chuks Anah & Ors (1999)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
The petitioner in this case was a Chairmanship candidate at the 5th December, 1998, Local Government Elections held for Onitsha North Local Government Council. He filed a petition before the Anambra State Election Tribunal holden at Awka challenging the return of the 1st respondent as the Chairman elect and prayed the tribunal also for his return instead of the 1st respondent.
The facts of the case upon which this appeal is based are as follows:- In the course of the Election Petitions Tribunal proceedings, appellant, realising that the fees payable by him had been wrongly assessed and as such not fully paid, filed a motion on notice pursuant to paragraphs 18, 37, 44 and 50 of Schedule 5 of Decree No.5 of 1998. He prayed the tribunal for the following orders:-
(i) Extending the time within which to pay the balance of the filing and hearing fees of this petition.
(ii) Directing the Secretary of the tribunal to accept the said fees from the petitioner, and
(iii) For such order or further orders as the tribunal may deem fit to make in the circumstances.
When the motion was sought to be moved, respondent raised a preliminary objection orally as to the competence of the petition itself. The objection was premised on the ground that necessary fees had not been paid by the petitioner at the time the petition was “presented” to the tribunal. It was contended that this failure had rendered the petition incompetent, depriving the tribunal of its jurisdiction.
Counsel to the petitioner on the other hand contended that the petition was competent and the tribunal had power to hear it. Counsel conceded though that the petition was defective but the defect was a procedural one which the tribunal could cure having re-course to paragraphs 4(4) (1) (2) & (3) and paragraph 50(1) of the 5th schedule to the Decree.
In a considered ruling, the tribunal held that even though the petitioner had complied with the provision of section 82 of the Decree by presenting his petition within the stipulated time, failure to pay the necessary fees was a breach of the mandatory provisions of 37(1) which breach rendered the petition incompetent. The tribunal sustained the respondents’ objection and struck out the petition.
The petitioner being dissatisfied with the tribunal’s ruling brought this appeal. The appeal is predicated on three grounds which are:
Ground of appeal 1
Error of law: The learned trial Election Tribunal erred in law striking out the petition as being incompetent.
Particulars of error
(1) The sale reason for striking out the said petition was the petitioners non payment of the full prescribed filing fees at the time the petition was presented, even though the petitioner paid all the fees as was assessed by the tribunal.
(2) The petitioner’s failure to pay the full fees was not of his own making but was occasioned by the wrong assessment of fees made by the tribunal itself.
(3) Before and at the time the preliminary objection to the competence of the petition was raised, there was pending before the tribunal a motion on notice filed by the petitioner for extension of time within which to pay all outstanding fees.
(4) Payment of fees is a procedural step under Schedule 5 of Decree 36 of 1988, the non-compliance with which ought to have been regularised by the tribunal at the instance of the Petitioner.
Ground two
Error in law: The learned trial Election Tribunal erred in law in entertaining the preliminary objection raised by the respondents in the circumstances of the case.
Particulars
(1) The respondents had taken steps in the proceedings by filing their replies before the objection was raised.
(2) The petitioner had filed a motion to regularise the petition before the said objection was raised.
(3) The petitioner said motion ought to have been heard first before the said objection.
Ground 3
Error in law: The learned trial Election Tribunal erred in law in holding that the non-payment of the full fees simultaneously with the presentation of the petition was fatal to the petition.
Particulars
(1) Paragraph 4(4) of Schedule 5 of Decree No. 36 of 1998 gave the Election Tribunal a discretion in the matter.
(2) Paragraphs 44(1) & (2) of the said Schedule also empowers the Election Tribunal to enlarge the time within which to do any act even after the expiration of the prescribed time.
(3) The petition was duly presented within 14 days period allowed by Schedule 82 of Decree No. 36 of 1998 and the Secretary to the tribunal issued a receipt in form TF 001.
(4) Non payment of the full fees is a procedural irregularity which could be rectified pursuant to paragraph 50(1) of the said schedule 5 of Decree 36 of 1998 and the objection to which could be raised by the respondents at the earliest opportunity before taking further steps in the proceedings.
(5) The petitioner’s motion for extension of time if heard could have regularised the proceedings.
Briefs were filed and exchanged. Learned counsel for the appellant, Mr. Chime, formulated an only issue for determination. This is:-
“Whether in the special circumstances of this case the non-payment of the full filing fees by the petitioner on the presentation of his petition was fatal to the petition; and if not, whether it was a procedural irregularity that could be and ought to have been rectified.”
Learned 1st respondent’s counsel, Senator Anah, SAN adopted the issue formulated by appellant’s counsel and added a second as being issues for determination. The second issue stated for determination by the learned counsel is:-
“When is an election petition “presented?” Is it when the petitioner takes his petition to the Registrar or when he has paid filing fees and other fees stipulated by Decree 36 1998″.
On his part, Mr. Ikediugwu, learned counsel for the 2nd and 3rd respondent presented the issue for determination in the following terms:-
“Whether the election petition tribunal was right in holding that the non-payment of the fulfilling fees by the petitioner on presentation of his petition was fatal to the petition”.
It seems to me that the various issues as formulated by all the counsel in this appeal present two questions for the purposes of this appeal. They all seem to ask:
(1) When is a petition by virtue of the relevant provisions of Decree No. 36 of 1998, presented?
(2) What is the effect of a petitioner’s failure to pay either in part or in full filing fees and other fees stipulated by law.
It will be correct to say that the three learned counsel in this appeal seem to agree on what constitute a duly “presented” election petition as envisaged by the provisions of Decree No. 36 of 1998, both in their brief of arguments and submissions before this court. They agree that:-
(a) An election petition under the Decree must be presented within fourteen days from the date on which the result of the election was declared. Section 82 of the Decree refers.
(b) That at the time of presenting the petition, the petitioner deposits not less than N3,000.00 with the Election Tribunal as security for costs. Paragraph 3(1) (2) Schedule 5 refers.
(c) That the petitioner or his solicitor at the time of presenting the petition pay the fees for service and the publication of the election petition and for certification of the copies. Paragraph 4(4) of Schedule 5 refers; paragraph 37(1) puts the fee payable pursuant to paragraph 4(4) at N600.00.
(d) That a hearing fee of not less than N200.00 is deposited with the tribunal at the time of presenting the petition. Paragraph 37 (2) & (3).
(e) That presentation of the petition is completed when on fulfilling a – d above the petitioner or his solicitor leaves the petition with the secretary and obtains a receipt to that effect. Petitioner also leaves a copy each for the respondents with seven extra copies with the secretary, paragraph 4(2) & (3) of Schedule 5 refers.
The only point of controversy between learned counsel for the appellant on the one hand and counsel for the respondents is as to the effect or non payment of all the fees as indicated in c and d supra at the time of “presentation” of petition.
It is the contention of Mr. Chime that the petitioner had on 18/12/98, well within the time allowed by section 82 of the Decree 36, 1998 presented his petition to the tribunal; that the petitioner had paid on such presentation a total sum of N286.00 being filing fees as assessed by the tribunal; that petitioner had paid security cost of N3,000.00 for which payments petitioner was issued with official receipts. It is further contended that petitioner had left with the secretary to the tribunal requisite number of copies of the petition and obtained Form TF 001.
Having done all these, Mr. Chime submitted the petitioner eventually realised that he was wrongly assessed as to the fees payable. The petitioner set out to pay up the balance between the N286.00 he paid initially and the fees stipulated by law.
The trial tribunal denied the petitioner the opportunity to do same when it sustained respondents’ objection and struck out the petition.
Mr. Chime argued that the ruling of the trial court regarding the objection raised by the respondents was wrong in law for the following reasons:-
(a) That non-payment of the full fees by the petitioner was caused by the wrong assessment made by the tribunal itself.
(b) That the respondents were aware of petitioner’s non payment of the full fees but proceeded to file their respective replies to the petition.
(c) That the petitioner’s non payment of the full fees was an irregularity which the tribunal had powers by virtue of paragraphs 4(4), 44(1) and para. 50(1) of Schedule 5 to rectify.
Mr. Chime in canvassing support for his submissions cited the case of Nwobodo v. Onoh (1984) 1 SCNLR 1 at 92 and Alh. D. Saude v. Alh. H. Abdullahi (1989) 3 NSCC (Vol. 20) (pt.3) 177 at 202 (1989) 4 NWLR (Pt. 116) 387 to show that the breach of rule of practice does not render proceedings a nullity, Counsel then urged us to set aside the decision of the trial tribunal and allow the appeal.
Respondents’ counsel saw differently. It is the submission of Senator Anah, SAN, and Ikediugwu who associated himself with the former, that non compliance particularly of paragraph 37 or Schedule 5 attracts no lesser a penalty than the striking out of the petition, While it would seem that non compliance with paragraphs 3 & 4 of the Schedule would allow calling in aid paragraph 50(1) to regularise the defect so occasioned, paragraph 37 does not. Its provision is strict and mandatory, non compliance with which occasion a fatal defect not curable by the use of paragraph 50(1), Counsel for these reasons asked this court to dismiss the appeal. Among authorities referred to by counsel are: Olaniyonu v. Prof. Awah & 2 ors. (1989) 5 NWLR (Pt.122) 493 NEPLR 108 at 114, Eminue v. Nkereuwen (1966) 1 ALL NLR 63, Enugbe v. Chuks Anah CA/E/21/99-1-3-99 & Ignatus Okafor v. Ngene & 4 Ors. CA/E/16/99 25-2-99.
In the instant case, it is not in dispute that the petitioner did not pay all the fees he was required by law to pay on the presentation of his petition, It is my view that where a law places certain conditions precedent to the performance of a given act, such an act cannot be said to have been duly performed without the fulfillment of the stated conditions. I find the decision in: (1) Olaniyonu v. Prof. Awah (2) Enugbe v. Chuks Anah supra apposite. The interpretation given in these cases to the provisions which required the payment of fees at the time of filing petitions apply equally to the facts and the laws of the instant case. As in those cases, this lapse too is fatal and incurable.
I will not consider learned appellant’s counsel submissions regarding the tribunal’s refusal to allow petitioner move a motion to regularise the petition, Senator Anah’s submissions in this regard are unassailable. The points raised by the appellant’s counsel were never made issues for determination for the purpose of this appeal. I limit myself to only those issues which by rules of practice are worthy or this court’s consideration.
In the result. I hold that the appeal has failed. The trial tribunal’s order striking out the petition is hereby affirmed. Costs to which respondents are entitled is put at N3,000.00
Other Citations: (1999)LCN/0481(CA)
