Boniface Isichei V. Independent National Electoral Commission (INEC) (2009)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI, J.C.A.

This is an appeal arising out of an Election Petition filed on 15th day of May 2007 before the Governorship and Legislative House Election Petition Tribunal holden at Asaba, wherein the Appellant sought for the following reliefs against the Respondent:-

1). A declaration that the Petitioner being the validly nominated candidate of the Peoples Democratic Party (PDP) be issued with a Certificate of Return for the Aniocha North Constituency House of Assembly having scored the highest number of votes cast at the elections.

2). An Order that the Petitioner be declared validly elected and returned, his political party having polled the highest number of lawful votes cast at the election.

3). An Order that INEC issues the Petitioner a Certificate of Return, the Petitioner having been duly sponsored by a political party (PDP), having contested and won the elections for Aniocha North Constituency House of Assembly general elections.

Before the filing of the Petition, the petitioner had gone to the Federal High Court, Abuja on a pre-election case in Suit No. FHC/ABJ/CS/221/2007. BONIFACE ISICHEI V. PDP & INEC wherein the Petitioner challenged the purported substitution of his name by PDP and INEC and was granted the following reliefs:

1. A Declaration that there are no cogent and verifiable reasons for the Defendants to change, substitute, or entertain the change of the name of the Plaintiff as the candidate of the Peoples democratic party (PDP) for Aniocha North Constituency House of Assembly Elections due in April, 2007.
2. A Declaration that the Defendants cannot change or substitute the name of the Plaintiff as the 1st Defendant’s candidate for the Aniocha North Constituency of the House of Assembly the time for so doing having expired.
3. A Declaration that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the Aniocha North Constituency of the delta state house of Assembly candidate after the plaintiff had been duly nominated by the 1st defendant as its candidate and after the 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in section 32(3) of the Electoral Act until the High Court or any Court of competent jurisdiction disqualifies the Plaintiff and or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.

The Respondents filed a motion on notice on the 4th of July, 2007 for an order striking out/dismissing the petition for not joining the said Hon. Victor Ochei as a statutory Respondent to the petition. This was regardless of the fact that the respondent issued the certificate of return to Hon. Victor Ochei, after the petition had been filed and in disobedience of the Federal High Court’s judgment. The Petitioner/Appellant filed a counter affidavit on the 19th day of July, 2007, wherein he annexed a copy of the Federal High Court’s judgment, of the press conference by the delta State Resident Electoral Commissioner in Asaba declaring the results of the Elections on party bases, and a letter from Accord Party substituting one Daniel Madubuike with the said Hon. Victor Ochei, as exhibits.

The Election Petition Tribunal struck out the Petition on the ground inter-alia that the non-joinder of the said Hon. Victor Ochei contravened section 140 and 144 (2) of the Electoral Act 2006 as well as paragraphs 4 (1) (a) and (c) of the First Schedule to the said Act and therefore incompetent..

The Appellant has now filed an Appeal before this Honourable court to determine amongst other issues raised, the issue of non joinder and the propriety of striking out the entire petition and also for the court to invoke its powers under section 16 of the Court of Appeal Act and determine the petition.

The Ruling of the lower tribunal is as contained on page 96-112 of the Record. In conclusion the tribunal held as follows and I quote –

“From all that has been said it is no doubt clear that all the grounds of the instant application brought by the respondent in the instant petition succeed. This being the case the respondent has therefore successfully impugned or challenged the competence of the instant petition and consequently the jurisdiction of the tribunal to entertain the same. This is because no court or tribunal has the jurisdiction to entertain a matter that is shown to be incompetent.

The petitioner in his address has argued that the instant application should be dismissed so that the instant petition can be heard on the merit. Suffice it to say that the law is most settled that when a court has no jurisdiction to entertain a matter, anything that it does in relation thereto will be an exercise in futility. See ATTORNEY-GENERAL OF KANO STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) ALL FWLR (Pt 364) 238 AND MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 342. The tribunal therefore has no choice in the matter but to put an end to the instant petition having found before now to the effect that the respondent has successfully impugned or challenged the competence of the said petition and consequently its jurisdiction to entertain the same.

In conclusion the tribunal hereby strikes out the instant petition on the ground that it lacks jurisdiction to entertain the same having before now found all the grounds of the instant application brought by the respondent in the instant petition (and which have successfully impugned or challenged the competence of the instant petition) to succeed.

It is against this conclusion that the Appellant filed grounds of appeal set out herein without the particulars.

GROUND 1

The learned tribunal judges erred in law when they held that:-

” …. It would therefore appear that both the respondent and Petitioner are labouring under serious misconception of law if they expect the tribunal to come to a decision an any of the said Grounds based on any deposition of facts in the affidavit in support and counter affidavit respectively and/or Exhibits attached to the said processes

GROUND 2

The learned tribunal Judges erred in law in holding that:

“It is clear from the averments in the instant petition that the Respondent has not been sued as the person returned or elected at the election the subject of the instant petition. Likewise it is glaring from the averments in the instant petition that the petitioner does not pretend to be complaining of the conduct of the respondent and or its agent(s) at the election of 14/04/07 for Aniocha North (or should it be South) Constituency House of Assembly. From all that has been said and on the petitioner’s showing in the instant petition, the tribunal therefore finds the said petition not to disclose on its face or in its body “the person elected or returned as the winner of the election of 14/04/07 into the Aniocha North (or should it be South as the Petitioner appears confused in that regard)

Constituency House of Assembly and who is an indispensable or compulsory statutory respondent in an election petition. In other words there is actually no election petition known to the law before the tribunal”.

GROUND 3

The learned trial Judges erred in law when they held that the non-joinder of the party sought to be joined at the time of filing the petition is fatal to the petition.

GROUND 4

The tribunal erred in not recognizing that the judgment of the Federal High Court, Abuja in Suit No FHC/ABJ/CS/221/2007:

BONIFACE ISICHEI V PEOPLES DEMOCRATIC PARTY & INDEPENDENT ELECTORAL COMMISSION (INEC) per ABIMBOLA OSARUGUE OGIE J. unquestionably settled the issue,

that the validly nominated candidate of the People Democratic Party (PDP) for the Aniocha North House of Assembly Constituency is the Petitioner.

Parties in line with Rules of this court exchanged brief of argument including a Reply brief filed by the Appellant. When the case came up for hearing in this court Dr. Azinge leading other counsel adopted her Appellant’s amended brief of argument dated 15/4/08 and deemed filed on 1/7/08 she also adopted and relied on her Reply brief dated and filed on 15/1/09 and she urged this court to allow the appeal.

Mr. Aleghe SAN also adopted his Amended brief of argument deemed filed

on 12/1/09 vide Application dated and filed on 17/11/08.

In her Brief of argument on behalf of the Appellant the Appellant distilled the following issues for determination.

1). Whether the tribunal was wrong in the non-use of the affidavit of both the Respondent/Applicant and the Petitioner/respondent in reaching its decision.

(AMENDED GROUND 1).

2). Whether the petition was rendered incompetent because of the non-joinder of the person unlawfully issued with the Certificate of Return, after the filing of the petition. (AMENDED GROUND 2 AND GROUND 3)

3). Whether the tribunal erred in not recognizing that the judgment of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/221/2007: BONIFACE ISICHEI V. PDP & INEC unquestionably settled the issue that the validly nominated candidate for the Aniocha North Constituency for the State House of Assembly is the Appellant.

(Amended Ground 4).

4). Whether the tribunal erred in holding that the petitioner had no locus standi to present the petition and that the petition does not contain valid grounds. (Additional Grounds 5 And 6)

5). Whether the Appellant is entitled to the reliefs claimed in paragraph 4 of the Notice of Appeal.

The Respondent at page 6 of his brief distilled only One issue for determination saying the solitary issue discernable from the Amended Grounds of Appeal is as follows:

“Whether the Appellant’s petition was competent”.

The contest at the lower tribunal was whether the petition was competent or not. I agree with the Respondent that the only issue discernable from the grounds is whether the Petition was competent before the lower tribunal. Where in an appeal an action has been found to be incompetent all issues raised which are premised on the incompetent action are no longer of any material value and effect in the outcome of the appeal and so of no moment. See WAZIRI V. ALI (2009) 4 NWLR Pt 1130,178. If therefore this court found that the petition is incompetent then consideration of other issues will be a waste of time and energy.

Let me refer to the petition as filed I quote in extenso –

THE ELECTION TO THE HOUSE OF ASSEMBLY FOR ANIOCHA NORTH CONSTITUENCY HELD ON THE 14TH DAY OF APRIL, 2007.

BETWEEN:

BONIFACE ISICHEI PETITIONER

AND

INDEPENDENT NATIONAL

ELECTORAL COMMISSION (INEC) RESPONDENT

PETITION

1. The Petition of Boniface Isichei of Aniocha North Constituency of No.1, Alanza Uche Ugboma Avenue, Off Okpanam Road, Asaba whose name is subscribed herein.

Your petitioner Boniface Isichei is a person registered to vote, who voted and was a candidate at the above election and claims to have a right to be returned at the above election and your petitioner states that the election was held on the 14th day of April, 2007 when Cyprian M. Ashibuogwu (AC), Peter Azuka Monye (DPA) Okwechime I.Festus (DPP) and Boniface Isichei (PDP) were candidates.

2. The Respondent is a Corporate Body established by the Constitution of the Federal Republic of Nigeria 1999, vested with the powers to conduct elections into the House of Assembly, Delta State.
3. Your Petition states that he was the validly nominated candidate of PDP and relies on the Federal High Court, Abuja judgment of Hon. Justice Abimbola Ogie in the case of Boniface Isichei v. PDP & INEC (unreported) in suit No. FHC/ABJ/CS/221.2007 which judgment is yet to be obtained from court despite the fact that applications have been made for same as can be seem from the petitioner’s Counsel letter dated 11th of May, 2007 which is hereby pleaded and will be relied on in the trial of this petition.
4. Your petitioner state that he was sponsored by the People Democratic Party (PDP) and relies on the witness statement of the Delta State Party Secretary of the Peoples Democratic Party herein annexed as witness statement and the judgment of the Federal High Court Abuja above mentioned.
5. That he campaigned vigorous for the State Assembly Elections and the National Chairman of PDP presented him as the PDP flay bearer for Aniocha North Constituency on the 1st of March, 2007 at Oshimili Arcade, Asaba. A copy of the video coverage of the said event shall be relied upon.
6. That in Delta State and Aniocha North Constituency in particular where the petitioner comes fro the respondent provided only the political party logo’s and no more on the ballot papers for election.
7. That registered voters identified their candidates through their political party logos as there were no published photographs of candidates. The respondent is hereby given notice to produce a sample of the ballot paper used for the election.
8. That the petitioner scored 23,715 votes which is the highest number of votes cast at the elections. INEC is hereby given notice to produce the result of the elections for Aniocha North Constituency for the House of Assembly elections.
9. That the petitioner’s agents were beaten up and result sheets snatched from them, hence the petitioner’s inability to produce copies of same.
10. That the result of the said elections were given adequate publicity in the print and electronic media all announcing the political party that won the election rather than the individuals.
11. That according to Delta Broadcasting Service (DBS) the following political parties scored the number of votes against their respective names for the House of Assembly general elections in Aniocha North Constituency of Delta State.

AC 865

DPA 818

PPA 669

PDP 23,715

12 AND your Petitioner states that the ground on which the Petitioner relies is that he was validly nominated, validly contested and won the election.

13. WHEREOF your petitioner prays for the following reliefs:-

a.) A declaration that the petitioner being the validly nominated candidate of the People Democratic Party be issued with a Certificate of Return for the Aniocha South Constituency House of Assembly having scored the highest number of votes cast at the elections.

b.) An order that the petitioner be declared validly elected and returned his political party having polled the highest number of lawful votes cast at the election.

c.) An Order that INEC issues the petitioner a Certificate of Return, the petitioner having been duly sponsored by a political party (PDP), having contested and won the elections for Aniocha South Constituency House of Assembly General Elections.

Signed by me BONIFACE ISICHEI, the Petitioner whose address of service is No.1 Alanza Uche Ogbonma Avenue, Off Okpanam Road, Asaba, Delta State.

The Appellant under Issue 2 as to whether the petition was rendered incompetent because of the non joinder of the person unlawfully issued with the Certificate of Return, in his argument said that the trial Judge erred in law when they held that non joinder of Hon. Victor Ochei is fatal to the petition.

The Appellant said its was impracticable as at the time of filing the petition because a case was pending in the High Court Abuja and that it was not easy to collect the Certified true copy of the judgment. The learned counsel cited OBASANJO V. BUHARI (2003) 1 FWLR Pt 189 Page 588 at 610 and S. 65(2) of the Constitution of Nigeria 1999 which provides that A person shall be qualified for election under subsection (1) of the section if he is a member of a political party and is sponsored by that party.

She relied heavily on BUHARI V. YUSUF 2003 14 NWLR (Pt 841) 446, 202.

She argued further that at the time of filing this petition election had not been concluded and Certificate of Return had not been issued to any person results having been announced on party lines. She argued that the non joinder of a party in this case Hon. Victor at the time of filing the Petition is not fatal to the petition citing MADUABU V. RAY 2006 All FWLR Pt 300 1671. She said the defect is curable in the manner prescribed by the rule.

The tribunal therefore erred without having regards to its amendability relying on TAIWO V. ABDUL (2006) 2 FWLR Pt. 309 pages 2117-2119; CHIEF UMO EBONGO & ANOR V. CHIEF VINCENT UWEMEDIMO (1995) 8 NWLR Pt 411 Page 22.

The Appellant therefore urge it on the court to hold that the party unlawfully returned was at the time of filing the petition not a necessary party.

The Respondent argued that the entire objection in the lower tribunal is based on point of law taken on the face of the document challenging the competence of the petition. On the judgment of the Federal High Court Abuja in Suit No. FHC/ABJ/CS/221/2007, the Appellant failed to exhibit the process relating to the pending appeal against the said judgment in his counter affidavit. The tribunal limited itself to the petition only. He urged that the essence of the Appellant’s complaint relate to the alleged substitution of his name after the primary of PDP. The Appellant complaint is therefore a pre-election matter. He cited the case of ADEOGUN V. FASHOGBON CA/B/81/M/07 where this court held that the Federal High Court was the proper court with jurisdiction to determine pre-election matters.

He argued that election matter are a special specie of cases and are in a class of its own. The jurisdiction is specially designed to deal with post election matters and non compliance is usually fatal to the petition. He dwelt on S. 144 of the Electoral Act 2006 and also Paragraph 4(1)(b) and stressed that paragraph 4(1)( c) specifically provide that the name of the person returned as winner must be stated. The Appellant’s petition fails to state the name of the person declared and returned. He argued that the argument of the Appellant is flawed giving regard to all the circumstance on the case.

The Respondent also exposed some facts that are hidden from the court in that he failed to disclose to this court that there are pending appeals against the much publicized judgment of Ogie in Suit No. FHC/ABJ/CS/221/07 PDP and the respondent against the said judgment and there is also a motion filed by the Respondent seeking to restrain the Appellant.

That the Appellant also failed to disclose the fact that he filed a mandamus application in Abuja in Suit No. FHC/ABJ/574/07 and a cross appeal in the much publicized Ogie’s judgment. The respondent urged this court to dismiss the appeal as lacking in merit.

Let me refer to the case of CA/B/EPT/26/08 ALUGBE-OBIA V. OKONTA & 3 ORS where Ibiyeye JCA OFR delivering the judgment of this court has this to say-

“I observed that the appellant relied heavily on the decision in the case of the Federal High Court sitting in Abuja in suit no. FHC/ABJ/CS/220/2007 delivered on the 10th May, 2007.

It is pertinent to note that the judgment in point was delivered on the 10th day of May, 2007 and the election which was meant to affect was conducted and the results declared on the same date, that is to say 14th April 2007. In a democratic regime that at present permeates the length and breadth of Nigeria, no judgment is validly endowed with any retrospective effect. Judgments instead take effect invariably from the day they are delivered bearing in mind that person including juristic persons who are parties to them as in a judgment which are in personam. I further observed from a thorough examination of the said judgment that three declaratory reliefs therein were sought and granted by the trial court. The three injunctive reliefs thereat were refused as reflected on page 24 of the record of proceedings. The law is now very well settled that a declaratory order or judgment merely declares the rights of the parties and it is dormant beyond that pronouncement.

It has no force of execution against the defendant and as such cannot be stayed or suspended … In the instant case, the three declaratory reliefs relied upon by the appellant as having binding effect on the Tribunal to the effect that the 1st Respondent had been disqualified from participating in the election which was conducted on 14/4/07 did not carry such incisive power at all as they are merely declaratory.

The situation could have been different if the three injunctive reliefs sought by the plaintiff in that case had been granted. In effect, that declaratory judgment is bare and ineffectual as it does not inure any enforceable legal right to the appellant. See OBI V. INEC (Supra) at page 633. Since that judgment is bereft of any force to achieve the desire of the appellant as it was delivered long after the election for which it was meant to affect had taken place, I dare say, with due regard, that the learned counsel for the appellant only laboured in vain as regards his copious submissions on it”. (underlining supplied)

That case is on all fours with this case as regards the much publicized Ogie’s judgment. There was no injunction against the Respondent not to conduct any election in the constituency affected by this appeal. With that the judgment can not deter the lower tribunal from taking any action deemed necessary in Election matters.

The question is has the lower tribunal jurisdiction to entertain the petition as presented? Or Is the petition competent? Before an answer is given. Let us examine the provision of the law and decided case.

Section 144(1) & (2) of the Electoral Act 2006 provides thus-

144(1) An election petition may be presented by one or more of the following person

(a) A candidate at the Election

(b) A political party which participated in the Election

(2) The person whose election is complained of is in this Act referred to as the Respondent etc.

Paragraph 4 of the First Schedule to the Electoral Act

provides thus:-

“Contents of Election Petition

4(1) An election petition under this Act shall;

(a) specify the parties interested in the election petition

(b) …………………………………………………………

(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election.

(d) ………………………………………………………

A tribunal means an Election tribunal established under Electoral Act.

In the case of EJOGU V. IROMA (2000) 4 NWLR Pt 1132 475 at 513 at 558 this court observed that Election petition being a special and different character should not be tied to every apron spring of the rules of procedure for the usual and ordinary civil matter. Further more S.151 of the Electoral Act provides that the rules and procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in First Schedule to the Act. This provision clearly brings in Paragraph 4 of the First Schedule for the guidance of the tribunal. Therefore non-compliance will strip the tribunal of jurisdiction. In OKEREKE V. YAR’ ADUA (2008) 12 NWLR Pt 1100 95 at 127 the Supreme Court laid it down that where legislation lays down a procedure for doing a thing there should be no other way of doing it.

In the same case the Supreme Court said by paragraph 4 of the 1st Schedule to the Electoral Act 2006 an Election Petition shall-

(a) Specify the parties interested in the election petition

(b) ………………………………………………………

(c) State the holding of the election, scores of the parties and the person returned as the winner of the election and

(d) …………………………………………………………

An election petition which does not conform with the above paragraph is defective and may be struck out by the tribunal.

In PETER OBI V. INEC 3 LC 317 SC it is also observed that an Election petition tribunal is not an all purposes court that can entertain all sorts of claims or reliefs. It is created for election purposes alone. It is also an authority that a declaratory order or judgment merely declares a right or an entitlement or the position of the law. Therefore a plaintiff who intends to have an enforcemeable legal right from a declaratory judgment or order that inures in his favour must also seek injunctive orders and damages Per Aderemi JSC at Page 359. In NNAMANI V. NNAJI (1999) 7 NWLR Pt 610 313. The Appellant failed because he failed to join a mandatory Respondent.

The judgment being paraded by the Appellant is declaratory.

Election were held before judgment and furthermore there were no injunction order restraining the Respondent from holding an election nor was there any to restrain the Respondent from issuing a Certificate of Return to an Elected Candidate.

In ACTION CONGRESS V. JANG (2009) 4 NWLR Pt 1132, 475 at 511, F-G. In the Jos Division of this court of four Justices held as follows: The word ‘shall’ in the provision of paragraph 4(1) of the 1st Schedule to the Electoral Act 2006 make it mandatory and compliance with the provisions is mandatory and the failure of one of the four conditions stated renders an election petition incompetent. The four conditions (a)-(d) are not alternative but must be satisfied at one and the same time for an election petition to be valid. In the instant case the failure of the Appellants to state the person returned as the winner of the election in their petition makes the petition incompetent for non compliance with paragraph (4) (1) (c) to the first Schedule to the Electoral Act 2006. It is a requirement for the validity of the petition and it was immaterial that the scores of the candidates were stated. See also WAIDI V. ALIYU (2004) All FWLR Pt 236 267; EBONGO & ANOR V. VICENT UWEMEDIMO & ANOR (1995) 8 NWLR PT 411 at 22 the court is of the opinion that proper parties are joined in a suit-

(a) to put an end to litigation and avoid multiplicity of proceedings on the same issue which can lead to different and inconsistent results; and

(b) to make the person joined to be bound by the result of the litigation.

In the case of PHILLIPS V. INEC, (unreported, CA/B/EPT/264/07 delivered on 25/2/09 in this court Nwosu-Iheme JCA in that case held that the tribunal was well within the law to have struck out a case for non compliance and held further that a distinction must be drawn between a mere irregularity that can be cured such as failure to comply with a rule of procedure or an order of court which can be corrected and an incurable and fatally defective process.

Having considered the law and case law I hold that the tribunal was right in striking out the petition for lack of jurisdiction.

The appeal lacks merit and it is dismissed.

---

Other Citations: (2009)LCN/3391(CA)