Chief Ambrose Owuru V. Independent National Electoral Commission of Nigeria & Ors (1999)
LawGlobal-Hub Lead Judgment Report
MICHAEL EYARUOMA AKPIROROH, J.C.A
This is an appeal from the Ruling of the National Assembly Election-Tribunal sitting at Port Harcourt.
The petitioner filed this petition at the National Assembly Election Tribunal on 18th March, 1999 and the 1st and 2nd Respondents were served with the petition on 30th March, 1999 while the 3rd Respondent was served on 29th March, 1999.
Upon the service of the petition on the 3rd Respondent he filed a memorandum of conditional appearance and indicated therein that he would raise preliminary objection against the hearing of the petition on grounds of law. On 7/4/99 he filed a motion to strike out the petition on the following grounds:-
“1. An ORDER striking out this purposed election petition.
- AND for such further or other orders as this Honourable Tribunal may deem fit to make in the circumstances.
- AND FURTHER TAKE NOTICE that the grounds on which this application is made are as follows:-
- The purported petition is not an election petition within the purview of section 75 of the National Assembly (Basic Constitutional and Transitional Provisions) Decree 1999 in that it does not complain of an undue election or undue return of any candidate in respect of a specific senatorial district in Rivers State in the last senatorial election held on 20/2/99.
- The purported petition failed to state the particular senatorial district in Rivers State the petition to the holding of election in respect of the senatorial district, the names of the candidates at the election, the scores of the candidates and the person returned as the winner of the election and therefore violated the mandatory provisions in paragraph 5(1)(c) of schedule 5 to the National Assembly (Basic Constitutional and Transitional Provisions) Decree, 1999 and is therefore defective and liable to be struck out by virtue of the provisions of paragraph 5(6) of Schedule 5 to the said Decree.
- The purported petition did not state the person elected or returned as elected which person must be joined as a party in the election petition as mandatorily required by the provisions of section 75 of the said Decree.
- The purported petition was not brought on any of the four grounds on which an election may be questioned as specified in section 75(1) of the said Decree.
- No name of the occupier of the petitioner’s address for service was stated at the foot of the election as mandatorily required by the provisions of paragraphs 5(4) of Schedule 5 to the said Decree with the result that the petition shall be deemed not to have been filed unless the Election Tribunal otherwise orders. See paragraph 5(5) of schedule 5 to the said Decree.
- At the time of presenting the purported election petition, the petitioner failed to give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent and therefore contravened the provisions of paragraph 3(1) of schedule 5 to the said Decree with the result that there shall be no further proceedings on the election petition. See paragraph 3(4) of schedule 5 to the said Decree.
Dated at Port Harcourt on Wednesday, April 7, 1999.”
After hearing submissions from counsel, the Tribunal struck out the petition in its ruling delivered on 21/4/99.
Dissatisfied with the ruling of the Tribunal, the appellant filed eight grounds of appeal against the said ruling (See pages 48- 50) of the records. The appellant and the 3rd Respondent filed their brief of argument in this court, but no brief was filed on behalf of the 2nd and 3rd respondent.
From the grounds of appeal filed, the appellant formulated four issues for determination in the appeal. They are:-
“1. Whether the Tribunal’s interpretation of S.75 and 79 of Decree No. 5 was right and or justified based on which the petition was struck out for non-compliance with the said provisions of the Decree.
- Whether the contents of the petition as relevant to the petitioner’s case did not comply with the paragraph 5 to the Decree or whether compliance with all the paragraphs 4 of schedule 5 to the Decree is in mandatory forms terms.
- Whether the petitioner having been screened and cleared to contest could be substituted with the 3rd Respondent at the Election.. Whether the petitioner was not entitled to judgment based on his unchallenged position for non-filing of reply-defence by the respondents.
The 3rd Respondent on the other hand disagreed with the issue formulated by the appellant and identified only one issue for determination in the appeal. It reads:-
“1. Whether the Election Tribunal was right in striking out the appellant’s petition.”
I would like to adopt the issue formulated by the 3rd respondent in this brief of argument in resolving the issues raised in the appeal. Put in another way, was the Tribunal right in striking out the petition without hearing it on merits in the face of paragraphs 4, 5, 6 and 7 of it?
Learned counsel for the appellant submitted in his brief of argument that the Tribunal was wrong in ruling that the right to petition is now restricted by section 70 of Decree No. 5 of 1990 for a candidate who loses at an election by virtue of section 78(1)(b) of Decree No. 5 of 1999. He then referred to Section 78(1)(b) of the same Decree and submitted that the appellant’s petition falls within it.
He cited the case of Jim Nwobodo vs. Onoh (1984) 1 S.C. 1 at 195 on the nature of election petition and submitted it is the duty of the court to hear them on merit without allowing technicalities to unduly fetter their jurisdiction.
Reliance was also placed on Section 76(1) of the said Decree. It was further contended that the facts of the case of Ezeobi vs. Nzeka (1989) 1 NWLR (Part 98) at 487 relied on heavily by the lower Tribunal are inapplicable to the facts of this case because the issues raised and considered in the case are different from the instant case because the petitioner filed his petition before the results of the election were announced unlike this case where results were announced before he filed his petition.
It was also further submitted that the petition is competent because the appellant was unlawfully excluded from the election and substituted with the 3rd respondent after he ahs been screened and cleared to contest the election and relied on the unreported case of this court in suit no: CA/PH/EP/65/99 on Ezenwo Wike vs. Samuel Ichenwo delivered on 17/3/99 and paragraph 7(2) of Schedule 4 of Decree No. 5 of 1999.
It was further contended that this petition has nothing to do with the validity or otherwise of the votes polled at the election and that for the purposes of presentation of a petition, it satisfied the provisions of paragraph 5(1)(a)(b)(c)(d) of Schedule 5 Decree No. 5 of 1999.
It was finally submitted that the appellant is entitled to judgment from his unchallenged petition by the 3rd respondent.
Arguing the only issue formulated by learned counsel on behalf of the 3rd respondent, Mr. Nwafor submitted that grounds 1, 2, 3, 4, 6 and 8 of the grounds of appeal are incompetent and should be struck out on grounds 5 and 7. He submitted that as no issues were formulated as arising from them for determination, they are deemed to have been abandoned and at such they should be struck out as being incompetent as well. On ground one, it was argued that the particulars furnished in support of it are not related to it while grounds two dos not arise from the judgment appealed against because the tribunal did not hold in its ruling that for section 75 of Decree No.5 of 1999 to be invoked, the petitioner must be a winner at the election.
On ground 3, it was argued that it is totally unrelated to the ruling of the Tribunal because it did not attack it.
On ground 4, it was argued that it is incompetent because it only complained of a question asked by the tribunal which is not a decision for which an appeal can lie. On ground 5, it was submitted that it does not arise from the ruling of the court, but also raised a fresh issue snot covered by the decision of the Tribunal. On ground 8, it was submitted that it contained only narrative and arguments which ought have been reserved for argument on the appeal and as such it is not a valid ground of appeal.
Arguing grounds 1, 2 and 3 of the objection, it was submitted that the election petition filed by the appellant is not an election petition within section 75 of Decree No. 5 of 1999 because it does not complain of an undue election or undue return of any candidate at the election and that fro there to be a compliance with section 75, such election petition must not only acknowledge that an election has been held, but must go to show the person elected or returned. Reliance was also placed on the contents of an election petition as set out in paragraph 5 of Schedule 5 Decree No. 5 of 1999 which are mandatory. He submitted that they must be fully complied with for there to be a valid election petition. The case of Chief Christopher Ezeobi vs. Lawrence Nzeka & 4 Ors. (1989) 1 NWLR (Part 98) 478 at 487 was cited in support. It was further argued that the petitioner/appellant failed to comply with the provisions of Sections 75, 78 and paragraph 5 of Schedule 5 to Decree No. 5 of 1999 in filing the petition.
It was further argued that a petitioner in an election petition can only present 78(1)(b) certainly not under section 78(1)(a) or Section 78(1)(b) certainly not under both and cited in support the cases of Barrac Lough vs. Brown (1897) A.C. 615 at 619 and Onuoha vs. Okafor & 2 Ors. (1983) 2 SCNLR 244 at 262.
It was further submitted that the petitioner failed to comply with paragraph 5(1)(c) of Schedule 5 to the said Decree which enjoins the petition to state the holding of an election, the scores of the candidates and the person returned as the winner of the election and also relied on Ezeobi v. Nzeka supra.
On ground four of the grounds of objection, it was argued that the petition was not brought on any of the four gorunds on which an election 79(1) of the said Decree and cited in support the unreported case of Felix Nwabochi vs. Wokocha Gift and Anor. Suit No. CA/PH/EP/121/98 delivered on 25/4/98 (per Nsofor J.C.A.).
It was finally contended that the petition could also be struck out under grounds 5 and 6 of the grounds of objection and relied on the case of Israel Olaniyonu vs. Awa & 2 Ors. (1989) 5 NWLR (Pt.122) 493 at 500 – 510.
As I said earlier, the main question that calls for determination in this appeal is whether or not the Tribunal was right in striking out the petition on the application of the 3rd Respondent without hearing it on its merit in the face of paragraphs 4 – 8 of the petition.
I consider it pertinent to reproduce paragraphs 4 – 8 of the petition at this stage:-
“(4) Your petitioner states that he was the original candidate of the party who was in accordance with the Electoral guidelines nominated and presented to the 1st and 2nd respondents and further to which he was duly screened and cleared by the 1st and 2nd Respondents for the Election.
The petitioner’s party nomination vide PDP letter dated 29th January, 1999 and the INEC, (sic) Nominations forms dated 30th January, 1999 and the clearance and hereby pleaded. The 2nd Respondent is hereby notified to produce the petitioner’s aforementioned nomination letters and the nomination forms etc.
(5) The Petitioner states that at all material times to the Election, the 3rd Respondent was not nominated by the PDP as its senatorial candidate.
(a) The 3rd respondent was not sponsored by the party for the Election or by any party registered in Nigeria, for the Election or at all.
(b) The 3rd respondent was therefore not duly nominated or screened and cleared by the 1st respondent for the election.
(6) The Petitioner avers that the 3rd Respondent Committed fraud on the 1st Responders and smuggled, foisted and presented himself with the connivance of the same unknown officials of the 1st Respondents to stand for him the Nation-Wide Election. The 1st respondent claiming to have received a new list from the some (sic) purported party officials after receiving the nomination of the petitioner.
(a) The petitioner will at the trial contend that having been screened and cleared the 2nd respondent had no powers or lawful authority to present another candidate and or present the petitioner from contesting the Election.
(7) Your petitioner avers that under the electoral guidelines the 3rd Respondent was not qualified to contest the said nation-wide National Assembly Elections on grounds into (sic) alia.
(a) committed fraud, and forgeries against the 1st Respondent and violated its rules, to contest the said election.
(8) Your petitioner states that the contested and won the aforementioned election on the platform of the PDP.
The polls results, as declared by the 1st, 2nd respondents and by which the PDP won the aforesaid election in the Rivers State East Senatorial, and copy whereof the 2nd Respondents is hereby notified to produce at the trial.
WHEREOF your petitioner prays that it be determined that the 3rd respondent. MR. JOHN MBATA.
(i) was at the time of the Election not qualified or disqualified from being elected to the office of the Senate and accordingly his elections and purported nomination was void on the following grounds
(a) He was a member of the secret society as herein before pleaded.”
Having reproduced paragraphs 4 – 8 of the petition, I would also like to reproduce sections 75, 78(1)(a)(b), 79(1)(d) and Schedule 5(1)(a)(b)(c)(d) of Decree No. 5 of 1999 which I consider relevant to the determination of this appeal:-
“75. No election and no return at an election under this Decree shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Decree referred to as an “election petition”) presented to the National Assembly Election Tribunal in accordance with the provisions of this Decree, and in which the person elected or returned is joined as a party.”
(i) An election petition may be presented by one or more of the following persons-
(a) a person claiming to have had a right to contest or be returned at an election; or
(b) a candidate at the election.
79(i) An election may be question on the following grounds:-
(d) that the petitioner was validly nominated but was unlawfully excluded from the election.
Schedule 5(1) An election petition under this Decree shall-
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) state clearly the facts of the election petition and the ground or grounds on which the election petition is based and the relief sought by the petitioner.”
With regards to the submission of learned counsel for the 3rd respondent that all the grounds of appeal are incompetent with due respect, I have examined all the grounds of appeal and I am of the firm view that they are competent grounds or appeal from which issues 1 – 4 are distilled from.
It was the contention of learned counsel for the 3rd respondent that the election petition filed by the appellant is not an election petition under section 78 of Decree No. 5 of 1999 in that it does not complain of an undue election or undue return in respect of the said election. It is my view that the petition is in line with the petitioner’s case because his complaint in his petition is that he was duly screened and cleared to contest the election by the 1st Respondent but was unlawfully excluded at the election in which the 3rd respondent was unduly returned. In effect, the appellant is questioning the undue return of the 3rd respondent by the 1st respondent. I am therefore of the firm and clear view that the appellant falls within a class of petitioners who has a right to present an election petition under section 78(1)(a)(b) based on one or more of the grounds on which an election petition can be questioned by virtue of section 79(a)(b)(c) supra reproduced above.
The procedure in my view by which the jurisdiction of an election Tribunal can be invoked is by means of an election petition complaining of an undue election or undue return, presented to the Tribunal and the petition must be based on one or more of the grounds spelt out clearly in Section 79 of Decree No. 5 of 1999 on which an election may be questioned. I think this is exactly what the appellant had done in his petition. See Adebiyi vs. Babalola (1993) 1 NWLR (Part 267) 1 at 10.
With due respect to counsel, the facts of the case of Ezeobi vs. Nzeka supra relied on heavily are not applicable to the fats of this case because in that case, the petitioner filed his petition at the High Court before the results of the electing were announced hence the court declined jurisdiction.
In the instant case, the results of the election were announced before the appellant filed his petition. In this case, the appellant was duly screened and cleared to contest the election but was unlawfully excluded. In the petition competent and within the jurisdiction of the lower Tribunal? I think the answer must be in the affirmative. See also the unreported case of No. CA/PH/EP/65/99 Ezenwo Wike vs. Samuel Ichenwo delivered on 17/3/99.
It was strenuously contended by learned counsel for the 3rd respondent that the petition failed to comply with paragraph 5 of the Schedule 5(1)(c) of Decree No. 5 of 1999 by failing to state the number of votes of the candidates and the person returned as the winner of the election.
While I agree with the submission of learned counsel that the number of votes of the candidates are not stated in the petition as required by paragraph 5(1)(c) of Schedule 5 of the said Decree, it is my view that since the number of votes scored by the parties at the election are not in issue in this case, failure to state them is not sufficient to render the petition incompetent. As I said above, the complaint of the appellant is that he was duly screened and cleared to contest the election but was unlawfully excluded by the 1st Respondent. How, can he state the number of votes scored by each of the candidates when he was unlawfully excluded from contesting the election by the 1st Respondent?
Besides, paragraph 8 of the petitioner reproduced above shown clearly that the appellant is questioned the return of the 3rd respondent on various grounds which falls within Section 79 of the said Decree.
From what I have said, I hold the view that the petitions is competent and the lower tribunal was wrong in striking it out prematurely without allowing the appellant to prove the grounds relied on in his petition. He is entitled to be heard. In Jim Nwobodo vs. Onoh (1984) 1 S.C. Uwais J.S.C. (as he then was) said at page 195:-
“Election petitions are by their nature peculiar from other proceedings and are very important from the point of view of public policy. It is the duty of Courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction.”
Before concluding this judgment I would like to refer to the wise observation of Lord Fletcher Moulton C.J. in Dyson vs. Attorney-Genral (1911) 11 K.B. 410 at 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 excepting in cases where the cause of action, was obvious and almost incontestably bad.”
In conclusion this appeal succeeds and it is accordingly allowed. The petition is remitted to the lower tribunal for trial on its merit. The appellant is entitled to costs assessed at N3,000.00 to be paid by the 3rd Respondent.
Other Citations: (1999)LCN/0484(CA)
