Banjo Omotola Peter V. Independent National Electoral Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
M. DATTIJO. MUHAMMAD, J. C. A.
The 14th April 2007 Election into the Ogun State House of Assembly was conducted by the 1st, 2nd, 4th – 15th Respondents in this appeal. The 3rd Respondent, Alausa Olawale Hassan sponsored by the 16th Respondent, the P.D.P., contested the Ijebu Ode Constituency seat in the election and was
returned duly elected at the end of the polls. Aggrieved, the appellant herein, as the petitioner at the tribunal below, filed a petition dated 11th May, 2007 challenging the return of the 3rd Respondent. The two sets of Respondents to the petition, the 1st 2nd, 4th -15th Respondents and the 3rd and 16th Respondents filed their replies dated 12th and 11th June, 2007 respectively on 13th June. 2007.
The 3rd and 16th Respondents by an earlier application dated and filed on 10th July, 2007 at the pre-hearing stage of the petition, challenged the competence of appellant’s petition. The petition was said to have breached paragraphs 8(1) and 4(1) c, d and (3) of the 1st schedule to the electoral Act 2006. In the tribunal’s ruling dated 8th August, 2007 on the application, though the petition survived, its paragraph 25 (a) and (b) was ordered struck out.
Subsequently, the two sets of Respondents filed two separate but similar applications challenging the jurisdiction of the tribunal to hear appellant’s petition that had not disclosed the petitioner’s locus standi. The sole issue for the tribunal’s determination on the basis of the consolidated applications reads:
“Whether the petition is competent not having complied with the mandatory provisions of paragraph 4(1) (b) of the first schedule of the Electoral Act 2006 and S.106 (1) of the 1999 Constitution”.
In the tribunal’s ruling delivered on 24th October, 2007, sec pages 238 -254 of Volume 2 of the record of appeal, the objections of the two sets of Respondents were upheld and the petition accordingly struck out. Being dissatisfied with this ruling of the tribunal, the Petitioner has appealed to this court on a notice dated 13th but filed on 14th November, 2007 containing three grounds.
Parties have filed and exchanged briefs of arguments including appellant’s reply brief. These briefs have been adopted and relied upon by the parties at the hearing of the appeal.
In the appellant’s brief, the two issues formulated for the determination of the appeal read:
“(1) whether the respective applications of the 2 sets of respondents, upon which the lower tribunal’s ruling was based are competent (distilled from Ground 2)
(2) Whether m the circumstance of the appellant’s petition, the lower tribunal was right to have held the petition is incompetent on the ground of lack of locus standi on the part of the Petitioner (distilled from grounds 1 and 3)”
The 1st, 2nd, 4th – 15th Respondents have also distilled two issues in their brief of argument thus:-
“(1) whether the respective applications of the two sets of Respondents upon which the tribunal based its ruling arc competent.
(2)whether considering the facts pleaded in the petition, the Petitioner had disclosed his locus standi to present the petition before the lower tribunal.”
The 3rd and 16th Respondents have also raised two issues in their brief urging that the appeal be determined On them thus:-
“(1) whether the application of the 3rd and 16th Respondents which was one on his basis for the ruling of the tribunal was competent before the tribunal.
(2)whether considering the facts pleaded on the petition, the Petitioner had disclosed his locus standi to present the petition before the lower tribunal”
Arguments in respect of appellant’s first issue were presented under four sub-issues. Firstly, it is contented that the tribunal’s finding that the two applications were governed by the provisions of the electoral Act, 2006 to the exclusion of the provision of order 25 of the Federal High Court (Civil Procedure)Rules 2000 is wrong. Learned Appellant Counsel submitted that by virtue of paragraph 50 of the first schedule to the Electoral Act, 2006 which made the Federal High Court (Civil Procedure) rules 2000 applicable to Election Petitions, non-compliance with Order 25 Rule 2 of the latter rules by the Respondents was fatal. Applicants ought to have raised the objections in their respective replies as required by the rules.
In continuation of argument, learned counsel submitted that 3rd and 16th Respondents’ application was bedeviled by a second defect. Their reply having not been signed by a legal practitioner was incompetent and incapable of containing the objection. The non-inclusion of the objections of the Respondents in their replies amounted to a demurrer that should have been struck out in limine. Learned Appellant counsel relied on ADESANYA VS. OLAYEMI (1999) 2 NWLR (pt. 592) 558 at 566, WATANMA (Singapore)VS. LIZ OLOFIN & CO. (1998) 1 NWLR (pt.533) 311 at 319, DISU VS. AJILOWURA (2006) 14 NWLR (pt. 1000) 783 at 802. OKAFOR VS. NWEKE (2007) 5 SCN 180 and J. P. VS. INEC (2004) 12 NWLR (pt. 886) 140 and urged us to resolve the sub-issue in appellant’s favour.
Under the 2nd sub-issue, learned appellant’s counsel contended that both applications had contravened the provisions of paragraph 49 (2) and 5 of the 1st Schedule to the electoral and should not have been entertained.
The objections were filed long after service of the petition on the Respondents and the filing of their respective replies to the petition.
Respondents had also taken so many steps after the two events that by the time they filed their objections they were deemed to have waived their right to raise the objections. Counsel anchors his submission on NGIGE VS. OBI (2006) 14 NWLR (pt. 999) 1 at 44, EZEKE VS. DEDE (1999) 5 NWLR (pt. 601) 80 at 92 and YUSUF VS. OBASANJO (2003) 15 NWLR (pt.843) 213, 308 and urged that the words of paragraph 49 (5) of the 1st Schedule to the Electoral Act, 2006 be given their literal meaning.
Alternatively, the tribunal should have deferred decision on Respondents objections till the end of trial. Decisions such as BICHI VS. HALADU (2004) 1 EPR 587 given before the introduction of pre-hearing proceedings, counsel argued, should not have informed the tribunal’s decision. Since parties have joined issues, other issues on the Petitioner’s candidature which formed the basis of Respondent’s objections could have been better resolved after evidence had been taken and at the end of the trial rather than at the interlocutory stage. This, Learned counsel contended, is what the Supreme Court’s decision in BUHARI v. OBASANJO (2003) 14 NWLR (841)446 at 505 is all about.
Concluding argument regarding the appellant’s 1st issue for determination, learned counsel submitted that before the two applications that gave birth to the instant appeal, the 3rd and 16th Respondents had in an earlier application dated 10th July, 2007 challenged the jurisdiction of the lower tribunal inter alia on the ground that Appellant’s petition was incompetent for non-compliance with paragraph 4(1) of the first schedule to the Electoral Act, 2006. The earlier application was refused. The decision that brought about the instant appeal was also on objections about the petition being incompetent for non-compliance with the same paragraph 4(1) of the Electoral Act’s first schedule. Learned Counsel for the appellant contended that it was wrong for the tribunal to take the subsequent applications as same had constituted an abuse of its processes. Litigants, it was argued, are not allowed to the luxury of piecemeal objections to jurisdiction divided into instalmental arguments. Counsel relied on SARAK1 v. KOTOYE (1992) 9 NWLR (pt. 264) 156 at 170. AFRICAN RE-CORP v. JDP CONST LTD. (2003) 13 NWLR (pt. 835) and CBN “S. AHMED (2001) 11 NWLR (724) 369 at 408 and urged us to hold that the objections are incompetent. He also asked that Appellant’s first issue be resolved against the Respondents.
Responding to the arguments advanced under appellant’s first issue, learned counsel to the 1st, 2nd, 4th – 15th Respondents in paragraph 4.3.2 of their brief adopted the arguments contained in paragraph 4.3.1 to 4.3.18 at pages 2-5 and paragraph 4.5 to 4.5.12 at pages 7 -10 of the 3rd and 16th respondents brief of argument in contending that their application was neither caught by the rule against demurrer nor guilty of delay. Learned counsel further argued that their reply to appellant’s petition by paragraph 12(3) of the 1st schedule to the Electoral Act needed not necessarily be signed either by the respondents or their solicitor. The requirement for signature under paragraph 12(3) of the 1st schedule differs from the one in respect of petitions under paragraph 4(3) b, which make such signature a mandatory requirement. Learned counsel urged us to read the signature requirement in respect of replies as a permissive one. He relied on ENAKHIMION v. EDO TRANSPORT SERVICE (2006) ALL FWLR (pt. 334) 1882 at 1900; GALAUDU VS. KAMRA (2005) ALL FWLR (pt.288) 1119 at 1137 and COLE VS. MATINS (1968) NSCC 170 and prayed us to resolve the 1st issue against the appellant.
In their own response to the arguments advanced by the appellant under the first issue for the determination of the appeal, learned counsel to the 3rd and 16th Respondents contended that by virtue of S. 147(3) of the Electoral Act 2006 where the objection being taken against a petition is for non-compliance with part IX of the Act on any part of the 1st schedule, the rule against demurrer will not govern such objections. He argued that objections taken under paragraph 49(5) of the first schedule are also excluded from the rule against demurrer being objections “on the face of the petition”.
Learned Counsel though conceding that the provisions of the Federal High Court rules apply by virtue of paragraph 50 of the Electoral Act, rightly insisted that the rules apply subject to the provisions of the electoral Act where the electoral Act has made comprehensive provisions for the taking of objections it would be wrong to read into the Electoral Act what it does not contain. The Federal High Court rules cannot provide for non-existing lacuna in the Electoral Act. Learned Counsel relied on BUHARI V. YUSUF (2004) 6 PRI at 54, NWUCHA VS. EBEKU (2004) ALL FWLR (pt. 215) 328 at 340, OKONKWO v. INEC (2004)11 NWLR (pt.854) 242 and YUSUF v. OBASANJO (2003) 1 FWLR (pt. 185) 507 at 533 to criticize the appellant’s reliance on the decision in JP v. INEC (2004) 12 NWLR (pt.886) 140 a case totally based on different facts from those in the instant case. The objections raised by the Respondents is a jurisdictional one, which could be raised at any stage, as was held in N.D.I.C. v. C.B.N. (2002) FWLR (pt. 99) 1021 at 1036.
It was forcefully argued as well that the appellant’s reliance on the Supreme Court’s recent decision in OKAFOR v. NWEKE (2007) ALL FWLR (pt. 368) 1016 in the face of an earlier subsisting decision of the same court in COLE v. MATINS (1968) NSCC 120 at 123 is a breach of the rule of stare decisis. Learned Counsel urged us to be bound by the more appropriate decision in COLE v. MATINS (supra) rather than the OKAFOR v. NWEKE (supra) which does not overrule the former even by necessary implication. Learned Counsel referred to paragraph 15 of the 3rd and 16th Respondents’ reply to appellant’s petition and insisted that it contains the objections to the competence of Appellant’s petition. Their objection, it was further contended, being a jurisdictional one could not be defeated by the delay envisaged under paragraph 49(2) and (5). Learned Counsel relied inter alia on BUHARI v. OBASANJO (2003) 17 NWLR (pt 850) 423, DAGGACH v. BULAMA (2004) 12 NWLR (pt. 892) 144 at 253, SENATE PRESIDENT v. NZERIBE (2004) ALL FWLR (pt.215) 362 and JANG v. INEC (2004) 12 NWLR (pt. 886).
Finally under the issue, learned counsel for the 3rd and 16th Respondents urged us to appreciate the essence of the introduction of the Court Practice Directions to Election Proceedings and to conclude that it has a purpose to serve. One of the purpose is to limit objections on the points of law to pre-hearing stage when the two Respondents raised their objections.
Such a move that had complied with the Practice Direction cannot be said to be in breach of paragraph 49(2) and (5) of the Electoral Act’s first schedule and therefore wrong. Learned Counsel referred to the decision of this court in BICHI v. HALADU (2004) EPR 587 at 599 where objections are held to be belated only if taken after the commencement of hearing. Objections taken at the pre-hearing stage are never so affected.
On the whole Learned Counsel to the 3rd and 16th Respondents urged us to resolve the issue against the appellant.
Under appellant’s 2nd issue learned appellant counsel contended that appellant had averred in paragraphs 1 and 2 of his petition that he was a candidate at the election at the end of which 3rd Respondent was returned as the successful candidate. Appellant had also averred to the number of votes he scored in the very election. Indeed, Learned Appellant’s Counsel argued, these facts had been admitted by the two sets of Respondents in their respective Replies. Inspite of the admission, the tribunal had wrongly held that appellant in the light of S. 109 of the 1999 Constitution read along with S.144(1) of the Electoral Act and paragraph 4(1) of the first schedule to the Act, lacked the locus standi to present his petition. It was submitted that the appellant need not plead beyond the fact that he was a candidate at the election to be entitled to sue by virtue of S. 144(1) (a). Learned Counsel relied on the following decisions: UBA v. UKACHUKWU (2004) 10 NWLR (pt. 881) 244 at 255, WAZIRI v. DAMROYI (1999) 4 NWLR (pt. 598)239, RIMI v. INEC (2004) ALL FWLR (pt. 210) 1312 at 1321 – 1322, ASINYA v. INEC (20905) 16 NWLR (pt.956) 175(sic) and PPA VS. SARAKI in Appeal No. CA/IL/EPT/GOV/2/2007 delivered on 2nd November, 2007 by the Ilorin Division of this court.
Appellant’s Learned Counsel further submitted that the Supreme Court’s decision in EGOLUM v. OBASANJO (1999) 5 SC I applied by the tribunal was unhelpful since the Appellant herein, unlike the appellant in the EGOLUM’S case, was a candidate at the Election in respect of which result the instant petition is all about. Since appellant had averred the fact of being a candidate at the Election, he needed not plead that he was qualified to contest the election. Learned Counsel submitted that locus standi as defined in INAKOJU v. ADELEKE (2007) ALL FWLR (pt.353)3 at 96- 97 simply means interest in the action which appellant had demonstrated in his petition. It was wrong of the tribunal to refuse applying the correct principles and arriving at the right decisions. He urged us to resolve the issue in appellant’s favour and allow the appeal as well.
In reply to the foregoing argument, Learned Counsel to the 1st, 2nd, 4th – 15th Respondents again associated himself with the arguments proffered in paragraph 4.7 to 4.7.30 at pages 10-14 of the 3rd and 16 Respondents brief or argument and urge us to resolve the issue in their favour.
In their response to argument under appellants 2nd issue, it is argued in the 3rd and 16th Respondents brief that S. 144(1) (a) and (b) and s. 145(1) (d) read along with paragraph 4(1)(b) of the first schedule to the electoral Act provide for the platform to sue. Appellant who had not pleaded the political party that sponsored him in the election did not fully disclose his right to present the petition and the tribunal was right to have followed the Supreme Court’s decision in EGOLUM v. OBASANJO to arrive at the conclusion it did.
The question to answer under appellant’s 1st issue is whether the objections taken by the two sets of Respondents, decision on which is the subject matter of the instant appeal, were competent in the first place to have conferred the tribunal the necessary jurisdiction to determine them.
In MADUKOLU & ORS, VS. NKEMDILIM (1962) Vol.2 2 NSCC 374 at 379, the Supreme Court vividly held that a Court has jurisdiction and is competent to consider a cause, action or matter when:-
(1) It is properly constituted and regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another,
(2) The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process by law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Again, Learned Appellant Counsel is on a firm terrain in his submission that a law court would be right to decline jurisdiction in the face of any abuse to its processes. See SARAKI v. KOTOYE (1992) 9 NWLR (pt. 269) 156 at 170 and AFRICAN RE-CORP VS. JDP CONST. LTD. (2003) 13 NWLR (pt. 835) The correct principle is that parties are required by a court of competent jurisdiction to present the whole of their case for adjudication and except in very special circumstances would not permit the same parties to subscquently contest an issue which might have in an earlier contest, been brought forward for determination but was omitted because of negligence, inadvertence or even accident. Court not only decline jurisdiction in respect of points it was required by parties to and had actually pronounced judgment upon but to every point which formed part of the subject matter of litigation and would have been diligently brought forward earlier for determination. Thus, it is an abuse of the process of a court to require the court in a fresh proceeding to decide an issue which were so clearly part of the subject matter of litigation and could have, for that reason, been raised and determined in an earlier proceeding. See HEKDERSON VS. HENDERSON (1843) 3 HARE 100 at 114, GREENHALGH VS. MALLORD (1947) 2 ALL ER 255 at 257, VAT TUNG INVESTMENT CO. LTD VS. DAO DENG BANK LTD. (1975) AC 581 at 589 -590, and CBN VS. AHMED (2001) 11 NWLR (pt.724) 369 at 408. In ISHMAEL AMAEFULE & ANOR VS. THE STATE (1988) 2 NWLR (pt.75) 156 at 177, the Supreme Court per Nnamani of blessed memory inter alia held as follows:-
“It is an abuse of the process of the court, for a party to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata; for a party to raise in subsequent proceedings a matter which could and should have been litigated in earlier proceedings.”
An application of the foregoing principle to the facts of the instant case bears out learned appellant’s counsel. The 3rd and 16th Respondents had in an earlier proceeding challenged the competence of appellant’s petition for non-compliance with paragraph 4(1) c and (3) of the 1st schedule to the Electoral Act. The objection though partly successful, the competence of the petition was sustained in the tribunal’s ruling of 8th august, 2007. The 3rd and 16th Respondents would have, with due diligence, raised the further issue of Appellant’s locus standi to sue as required under paragraph 4(1) (b) of the 1st schedule in the earlier proceedings as well. Time is of the very essence in election proceedings and the piece-meal challenge of the 3rd and 16th Respondents to the competence of the appellant’s petition was an abuse of judicial process the tribunal should have forestalled. See CBN VS. AHMED (2001) 11 NWLR (pt. 724) 369 at 408.
Now, how does the decision in MADUKOLU v. NKEMDILIM (supra) impact on the instant appeal? The Respondents have argued that the errors alluded to by the appellant in the tribunal’s consideration of their objections were procedural. A defect in procedure, both Respondents’ counsel argued, are not always fatal. On appellant’s part, the argument is that the objections touched on the tribunal’s competence since they were not initiated by due process of law.
Hereunder supplied for ease of reference are S.147(3) of the Electoral Act, paragraph 49 (2) and (5), paragraph 50 of the 1st schedule to the Electoral Act, and Order 25 rules 1, 2 and 3 of the Federal High Court (Civil Procedure) Rules and paragraph 6 of the Election Petition and Court Practice Directions 2007 which provided for the objections raised by both sets of Respondents.
“S.147(3) Subject tot the provision of subsection (2) of section 149 of this Act, on the motion of a respondent in an election petition, the election Tribunal or the court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of first Schedule of this Act.”
Page 49 of the 1st Schedule of this Act.”
“49(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or foe being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
(5) An objection challenging the regularity or competent of an election petition shall be hear and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.
Paragraph 50 of the 1st Schedule
“50. Subject to the express provision of this Act, the practice and procedure of the tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the federal High Court in the exercise of its civil jurisdiction, and the Civil procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as it the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
“Order 25 of the federal High Court (civil Procedure) rules.
“25(1) No demurrer shall be allowed
- …..
(1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial.
(2) A point of law so raised my, by consent of the parties, or by order of the court or a Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
- If, in the opinion of the Court or a Judge in Chambers the decision of the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off, counter-claim, or reply therein, the court or Judge in Chambers may thereupon dismiss the action or make such order other therein as may be just.”
Paragraph 6 of the Election Petition and Court Practice directions 2007.
“6. (1) No motion shall be moved. All motions shall came 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 3 days of being served. Where a counter affidavit is served on the applicant, he may file further affidavit with his reply.
How we go about reading the foregoing statutes has been stated at page 28 of the 12th Edition of the book “Maxwell on interpretation of statutes” thus:-
“The first and most elementary rule of construction is that it is to be that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to rules of Grammar. . .if there is noting to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the word and sentences. The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, references to cases.,(underlining supplied for emphasis)
Courts in this country have imbibed the rule of interpretation as stated above in a seemingly endless number of decisions. See OBI v. INEC (2007) 11 NWLR (1046) 565, IBORI v. OGBORU (2005) 6 NWLR (pt.970) 102 and ATTORNEY GENERAL OF ONDO STATE VS. ATTORNEY GENERAL OF EKITI STATE (2001) 17 NWLR (pt.743) 706. In the instant case where the words are clear and unambiguous we must interprete the words used by the lawmakers by giving effect to their literal meanings without recourse to any aid outside the legislations.
It is part of the exercise to stress that the applicability of the Federal High court rules subject to the express provisions of the Electoral Act, given paragraph 50 of the Electoral Act’s first schedule is no longer in doubt. That is the point the Supreme Court dwelt upon in YUSUF v. OBASANJO (supra) when interpreting similar provisions in the Electoral Act 2002 thus:
” ….. The Rules shall be applied with such modifications as may be necessary to render them applicable in the light of the provision of the Act.”
The reliance placed by the learned counsel to the 3rd and 16th Respondents on the dictum of my learned brother Olagunju (of blessed memory) in OKONKWO VS. INEC 1 NWLR (pt.854) 247 at 273 that the applicability of the Federal High court rules by virtue of paragraph 50 of the 1st schedule of the 2002 Electoral Act and inspite of the provision of paragraph 49(5) of the same schedule is well informed resolve. The two paragraphs in the 2002 Electoral Acts first schedule are similar to those in the 2006 electoral Act’s first schedule under consideration.
Learned Counsel to the 3rd and 16th Respondents must be reminded an aspect of Olagunju JCA’s decision that he chose to deliberately either ignore or suppress. His lordship had forcefully opined further in relation to paragraph 49(5) of the 2002 Electoral Act thus:-
“Obviously, the above provision is silent on the procedure about how the preliminary objection may be raised, a point for which no provision is contained in the Act or procedure for Election Petitions in the first schedule to the Act. The lacuna justifies recourse to the Federal High Court Civil Rules, as sanctioned by paragraph 50 of the procedure for Election Petition, thereby allowing the application of Rule 2 of Order 9 of the rules of the Federal High court that enables application to the Court or Judge in Chambers to be made by motion.” (underlining supplied for emphasis)
The foregoing remains authoritative since the provisions regarding the issue persist under paragraphs 49(5) and 50 of the first schedule to the 2006 Electoral and Order 25 of the federal High Court Rules 2002. It would have been otherwise had the Electoral Act 2006 indeed made adjectival provisions that comprehensively cover the procedural requirements of the tribunal.
We did construe the procedural provisions governing the objections of the two sets of Respondents in an earlier and yet to be decision of ours delivered on 27th October 2008 in Appeal No. CA/I/EPT/NASEN/5/2008, OLARENWAJU ADEYEMI TEJUOSHO v. INEC & ORS. The facts in the earlier case are the same as those in the instant appeal. In the earlier case, we drew from the decision of the Supreme Court in AJILOWURA v. DISU & ORS. (2006) Vo1.10 MJSC 70 adjudging an objection taken outside the applicant’s statement of defence as Incompetent by virtue of rule 1 of Order 23 of the Lagos State High court Civil Procedure Rules that had, like Order 25 Rule 1 of the Federal High Court Civil Procedure Rules, abolished demurrer. In the earlier case I held as follows:-
“It follows from the 1st, 2nd, 4th – 23rd Respondents objection on the appellant’s locus standi to sue which was in breach of order 25 that equally abolished demurrer in rule 1 and entitled a defendant to raise his point of law in his pleading under rule 2, was incapable of being considered by the tribunal. The objection not being initiated by due process has robbed the tribunal of its jurisdiction to consider and determine same. See SAUDE VS. ABDULLAHI (1989) 4 NWLR (pt.116) 387 and MADUKOLU VS. NKEMDILIM (1962) 2 SC NLR 341. Resultantly Appellant’s locus standi to institute his petition still subsists.”
I further considered the import of paragraph 49 of the 2006 Electoral Act’s first schedule in the TEJUOSHO’S case thus:-
“By the above, any valid application to set aside an election petition for being an irregularity or a nullity is allowed only when the application had been made timeously and the applicant had not taken any fresh step in the proceedings after his discovery of the defect. In the instant case, even if the petition had been adjudged irregular and/or void, and it has not, by the combined effect of sub paragraphs (1) and (2) of paragraphs 49 of the first schedule to the Electoral Act the tribunal should have save d the petition. 1st, 2nd, 4th – 83rd Respondents in the instant ease did not only enter unconditional appearance and file their reply to the supposedly defective petition, they also admitted the crucial paragraphs in the petition. They cannot be said to have acted timeously to justify the indulgence granted them by the tribunal. See ABUBAKAR VS. INEC (2004) 11 NWLR (pt.854) 207 at 217, NGIGE VS. OBI (2006) 14 NWLR (pt. 999) 1 at 44 and YUSUF VS. OBASANJO (2003) 15 NWLR (pt. 843) 293 at 308.”
The foregoing conclusions apply with as much force to the facts of the instant appeal. Respondents herein are presumed to have become aware of the defects they based their objections upon on their being served with Appellant’s petition. The earliest time they could raise their objection on becoming aware of the defects was in their respective replies. Their objections apart from being outside their replies were raised after Respondents had taken all the steps catalogued at page 3 of the Appellant’s brief. These include the inspection of Electoral documents in 1st Respondent’s custody and raising and arguing the 1st objection to appellant’s petition filed by the 1st, 2nd, 4th -15th Respondents. The Respondents had taken so many steps in the proceedings after becoming aware of the defects on which their objections were raised. The law does not allow them to raise the objection at that stage. It is for these reasons that appellant’s first issue is resolved against the Respondents.
The 2nd issue in the appeal attacks the decision of the tribunal on the merits of the objection. In the TEJUOSHO’S case when confronted with the similar controversy pertaining a petitioner’s right to sue as rages in the instant appeal, I reasoned at pages 13-14 of my judgment as follows:-
“Again it must be stressed that the combined effect of Section 144(1) and paragraph 4(1)(b) is that once a Petitioner had averred the fact of his candidature in the very election he seeks to challenge by his petition, the law in its plain and unambiguous language says that he is entitled to present his petition. Having specified the right donated by Section 144(1) of the Electoral Act as required under paragraph 4(1) (b) of the first schedule to the Act, the Petitioner activates the tribunal’s jurisdiction to enquire into the merit or otherwise of his petition. The law does not ask for more than that. This explains the rational behind Learned Senior Counsel’s specific invitation that, in the determination of the sole issue in this appeal, we apply two previous decisions of this court in respect of similar facts and legislations which decisions the tribunal wrongly refused to exploit.
Learned Senior Counsel had submitted that the tribunal was wrong when it departed from these binding decisions and instead applied the decision in EGOLUM VS. OBASANJO which is on totally dissimilar facts and legislation. The two decisions Senior Counsel commended to us are NNAMANI v. NNAJI (1999) 7 NWLR (pt.610) 313 at 329-330 and the decent and unreported decision of this division of the court delivered on 13-3-08 in appeal No. CA/I/EPT/GOV/10/2007,
SENATOR IRIKUNLE AMUSU v. INEC & 259 ORS. I cannot agree more with Learned Senior Counsel to the appellant on this score.
It must always be appreciated that cases are authorities for what they decided. Earlier decisions only bind subsequent ones if they were in respect of the same or similar facts and legislation as those the courts are subsequently asked to adjudicate upon. Most certainly, EGOLUM VS. OBASANJO (supra) is not a binding authority for the resolution of the controversy the lower tribunal contended with in the instance case. This court in both NNAMANI v. NNAJI (supra) and SENATOR IBIKUNLE AMUSU VS. INEC & 259 ORS (supra), had distinguished the EGOLUMS’s case from the facts in the instant matter. The Petitioner in the EGOLUMS’s case was never a candidate at the election in respect of which he presented his petition. The appellant herein as demonstrated was “a candidate” in the election and had so pleaded in his petition. EGOLUMS’s case cannot be the basis of the determination of the objection raised by the 1st, 2nd, 4th – 15th Respondents against the appellant. I so hold.”
The foregoing remains the law in the instant appeal ruled by the same facts. I have not been given any reason why it has to be otherwise.
Appellant’s 2nd issue for determination is also resolved against the Respondents. The appeal succeeds. The petition is remitted to the Ogun State Governorship and Legislative House Election Petition Tribunal for same to be expeditiously heard and determined. Appellant is entitled to costs of the appeal put at N20,000,00 against each set of Respondents.
Other Citations: (2008)LCN/2974(CA)
