Chief Chris Nwaukoni V. Joan Onyemachi Bielonwu & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the decision of the Governorship and Legislative Houses Election Tribunal of Delta State, sitting at Asaba (hereinafter simply referred as the lower Tribunal) in petition No. CA/B/EPT/HA/01/2007 in a ruling delivered on 11th December, 2007 wherein the Amended Petition of the Petitioner/Appellant was struck out for being incompetent. The Petitioner/Appellant was dissatisfied with the ruling of the lower Tribunal of 11/12/07 and appealed to this Court in a notice of appeal dated 27th December, 2007.
The facts leading to this appeal were that the Appellant and the 1st Respondent being members of the same political party – PDP, indicated interest in being sponsored to contest the election for the Aniocha South Constituency of the Delta State House of Assembly. In pursuit of this interest, the PDP organized a primary election in which the Appellant and 1st Respondent were candidates along with other interest members of the party. The Petitioner/Appellant claimed to have won the primary election.
According to the Appellant, the Executive members of the PDP of the PDP in Delta State as well as some Govern-Officials did not want him to be the candidate of the PDP for the said Aniocha South State Constituency; rather these officials appeared to have preferred the 1st Respondent. In view of their preference for the 1st Respondent, they went ahead to allow her to parade herself as the candidate of the PDP for the election into Aniocha South State Constituency. She (1st Respondent) printed posters and was presented to the electorate as the flag bearer of the PDP. Efforts were made to substitute the name of the Appellant with that of the 1st Respondent as the rightful candidate of the PDP. The National Executive Committee, however, continued to maintain the Appellant as the candidate of the PDP. His name was submitted to the 2nd Respondent who screened and cleared him to contest the election as the candidate of the PDP. The candidates of other political parties such as AC, DPP, CP, and MDP were also cleared. One Victor Okuokei was said to have been presented to the 2nd Respondent as the candidate of Accord Party for election into Aniocha South Constituency. For reasons which do not appear quite obvious from the record he was not cleared to contest the election. Therefore, the official ballot paper for the election was alleged not have any name or symbol of the Accord Party.
The election was held on 14th April, 2007. At a point after the election the 1st Respondent was returned by the 2nd Respondent as the duly elected candidate for the Aniocha South State Constituency. The 1st Respondent was said to have won the election as the candidate of Accord Party. The Appellant was aggrieved by the return of the 1st Respondent as the winner of the election. Against the return of the 1st Respondent by the 2nd Respondent as the winner of the election, the Appellant filed a petition dated 24th April, 2007 on 30th April, 2007. Upon being served with the Petition, the 1st Respondent entered conditional appearance on 8th May, 2007 and later filed a 61 paragraph reply on 21st May, 2007. The 2nd – 12th Respondents also entered conditional appearance on 8/5/07 and filed a preliminary objection to the competence of the petition and the jurisdiction of the Tribunal to entertain it as well as a reply to the petition itself. This preliminary objection and reply were dated 21/5/07. In paragraph 61 of her reply the 1st Respondent urged the Tribunal to dismiss the Petition for being unmeritorious and vexatious. By paragraph 43 of their reply the 2nd-12th Respondents also urged the Tribunal to dismiss the Petition for being frivolous and speculative. Just before these prayers, the respective Respondents had denied all the key and material averments in the petition. Also, both the petition and the respective replies had attached very copious documents in support of the averments therein.
The Petitioner/Appellant filed replies to the respective replies of the Respondents. The replies were filed on 30/5/2007. On the 8/6/2007 the Petitioner/Appellant filed a motion on notice pursuant to paragraph 14 of the 1st schedule to the Electoral Act 2006 and the inherent jurisdiction of the Tribunal for an order for leave to amend the petition and a deeming order that the petition was properly filed and served. The 1st Respondent filed a counter affidavit to oppose this motion. The 2nd – 12th Respondents did not file a Counter-affidavit. The motion was argued on 28/6/07. The Respondents vigorously opposed this motion. All the grounds of the objections of the Respondents to this motion were considered by the Tribunal and systematically dismantled. In a ruling dated and delivered on 11/7/07, the Petitioner/Appellant was granted leave to amend the petition and further the petition was deemed as properly filed and served. Lest I forget, the amendment sought to be introduced to the petition was simply to insert the address of the Petitioner.
In a motion dated 2/07/07, the 1st Respondent applied to the Tribunal for an order for the petition to be dismissed for being irregular and incompetent or in the alternative for certain paragraphs of it to be struck out. The paragraphs were many and striking them out would have had the effect of knocking off the bottom of the petition. This motion was duly argued. Five issues were considered for determination in the application. All the five issues were resolved in favour of the Petitioner/Appellant. At page 801 of the record, the lower Tribunal held as follows: –
“In the final analysis it is the considered view of the Tribunal that the 1st Respondent’s motion on notice is without any ment and is accordingly refused. The Tribunal will proceed to full hearing of this petition.”
This ruling was delivered on 8/10/07. Before the Petition could proceed to hearing, the motion of the 2nd to 12th Respondents dated 21/8/07 was at this late hour fixed for hearing on 24/10/07. However, before that date the 1st Respondent filed another motion on 22/10/07 inter alia seeking for the following 2 reliefs:
a) An order granting leave to the 1st Respondent/Applicant to filed and argue motion on notice to strike out the amended petition for being incompetent; and
b) An order striking out this amended Petition dated 8/6/07 for being in competent.
This application was predicated on 9 very copious grounds, a schedule and a 16 paragraph affidavit in support.
While the application of the 2nd – 12th Respondent was due for hearing on 24/10/07, they also filed another motion on 23/10/07 seeking for the following 2 reliefs: –
VIZ: –
a) An order striking out paragraph C 32(a) – (f) of the amended petition for being incompetent and lack of jurisdiction; and
b) An order striking out this a mended petition dated 8/6/07 for being incompetent and lack of jurisdiction.
This application was made on 8 very copious grounds, also with a schedule and a 15 paragraph affidavit in support. It is remarkable that these 2 applications of the Respondents are not at all dissimilar in form, con and effect. The earlier motion of the 2nd – 12th Respondents of 21/8/07 was withdrawn and struck out while both the motion of the 1st Respondent of 22/10/07 and that of the 2nd – 12th Respondent of 23/10/07 were fixed for hearing on 14/11/07.
The Petitioner/Appellant filed a notice of preliminary objection to each of the motion of the 2 sets of Respondents. Though not very clear from the records of proceedings of the Tribunal on 19th November, 2007, the 2 very similar motions of the Respondents appeared to have been consolidated along with the respective notices of preliminary objection and heard on that date. After this hearing, ruling was reserved for 13/12/07. Also, for reason(s) which do not appear on the record ruling was delivered on 11/12/07 and not 13/12/07. In this ruling the Tribunal concluded as follows: –
“The overall effect of the application of the 1st and 2nd – 12th Respondents is that the amended Petition of the Petitioner is rendered incompetent and is hereby struck out.”
See page 1042 of record of appeal.
Being dissatisfied with the whole of this ruling the Petitioner/Appellant filed a notice of appeal dated 27/12/07, incorporating 10 grounds of appeal. The 1st Respondent was also dissatisfied with part of the ruling and filed a notice of cross appeal incorporating 2 grounds.
Upon these appeals, respective parties filed their respective briefs of argument. The brief of the Petitioner/Appellant is dated 28/01/08 and was filed on 30/01/08. The 1st Respondent, with leave of this Court filed an amended brief dated 30/01/08 but deemed properly filed and served on 5/5/08. The brief of the 2nd to 12th Respondents is dated 03/03/08 and filed on 6/3/08 but was however, deemed as properly filed and served on 16/04/08.
The petitioner/Appellant filed separate but identical replies to the briefs of the Respondents. Both were dated and filed on 18/04/08.
With respect to the Cross appeal, the 1st Respondent/Cross-Appellant filed a brief of argument on 30/01/08. The Appellant/Cross-Respondent replied with a brief dated 04/02/08 but filed on 14/02/08. The 2nd – 12th Respondents did not file a reply to the Cross appeal. At the hearing of the appeals before us on 21st May, 2008, respective learned Counsel adopted and relied on their respective briefs of argument. In the course of adopting his brief, learned Counsel to the appellant, Chief Akpomudje SAN made a very short address in which he drew our attention to some decided cases.
The foregoing is the setting upon which this appeal must be decided. To one who is not familiar with the facts and circumstances leading to this appeal, the summary of the facts hereinabove may appear extensive.
However, the extensive narration had become very compelling both because of the intriguing facts and also with a view to be very focused on the issues in the appeal.
From the 10 grounds of appeal and their very copious particulars, the Petitioner/Appellant formulated 5 issues for determination in this appeal. They are as follows: –
1) Having regard to the provisions of paragraph 49 of the first schedule of the Electoral Act 2006 and the steps taken by the Respondents after being served with the originating processes in the petition did they not waive their rights to question the incompetence of the petition based on any alleged irregularities under paragraph 4(i) (c) of the Electorate Act as well as practice direction made pursuant to it. Ground one Ground of Appeal.
2) Is there any provision of the law which requires a Petitioner to accompany an Amended Petition with the documents stated in the practice direction and can the non compliance if at all ender the petition to be incompetent having regard to the peculiar facts of the case when objection was raised to the grant to the amended petition. (Ground 2 & 3 of the Appeal)
3) Did the Petitioner from a total reading his pleading comply with the provision of paragraph 4 (i) (c) of the first schedule of the Electoral Act 2006 with respect to pleading the names of the candidates. The person declared as winner and the scores of the candidates and what will be the effect of such non compliance with the entire petition having regard to the admonition against technicality and the provisions of paragraph 45 & 49 of 1st schedule of the Electoral Act. (Grounds 4, 5, 6, 8 & 9 of Appeal)
4) Are the grounds “A” and “B” for bringing the petition outside those enacted in the Electoral Act or can it be said that they relate to pre election issues which the Tribunal had by a previous ruling based on a similar application by 1st Respondent held not to be pre election matter. (Ground 7 of the Appeal)
5) Did the Tribunal consider at all or adequately the evidence of petitioner placed before it and all legal submissions in support of petitioner’s argument before arriving at the decision which considered the issues from Respondent’s side only.
The briefs of the Respondents followed similar patterns. Both briefs raised substantially the same preliminary objections challenging the competence of the grounds of appeal and also the competence and jurisdiction of this Court to entertain the instant appeal. After arguing the notices of objection very exhaustively, they went further ex abundante cautela to adopt and argue the 5 issues formulated by the Appellant for the determination of this appeal.
Because the notices of preliminary objection seek to challenge the competence of this appeal and the jurisdiction and competence of this Court to entertain same I wish to first and foremost consider and determine this jurisdiction issue one way or another before going further to consider and determine the issues for determination in this appeal, if circumstances permit.
In arguing the preliminary objection, learned Counsel to the 1st Respondent pointed out that: –
1) The notice of appeal dated and filed on 27/12/07 is incompetent and this Court has no jurisdiction to entertain it.
Alternatively, learned Counsel pointed that: –
a) Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the notice of appeal are incompetent.
The grounds of the objection to the jurisdiction of this Court to entertain this appeal, according to learned Counsel are: –
GROUNDS OF OBJECTION
a) Ground One (1), Two (2), Five (5), Six (6), and Eight (8) are incompetent for being in conflict with Order 6, Rule 2 (2) and (3) of the Court of Appeal.
b) Grounds one and two as captioned by the Appellant are of mixed and fact which require leave of Court, while the particulars stated thereunder are argumentative, unnecessarily lengthy and contained detailed reasons and also the particulars have no nexus to the ground.
c) Grounds three and four are vague, argumentative and incomprehensible, while the particulars stated thereunder have no nexus to the ground and are also argumentative in nature.
d) Ground five as captioned by the Appellant are of mixed law and fact which require leave of Court, while the particulars stated thereunder are argumentative, unnecessarily lengthy and contained detailed reasons and also the particulars have no nexus to the ground.
e) Ground six is a challenge against the exercise of discretion by the Tribunal without leave of Court thereby incompetent. While its particulars are argumentative in nature.
f) Grounds seven, eight and nine are incompetent while their particulars are narratives and argumentative in nature
g) Ground five by its particulars is a ground challenging the exercise of discretion by the lower Tribunal without the Appellants obtaining leave.
h) Ground ten (10) which alleges that the ruling is against the weight of evidence is incompetent as the preliminary objection was considered on the basis of only the averments in the petition.
2) Issues 1, 2, 3, 4 and 5 formulated by the appellant in his brief of argument are not based on any valid ground of appeal and are incompetent and should be struck out and arguments based on the same should be discountenanced.
Upon these grounds, learned Counsel argued and submitted that the notice of appeal herein was filed without the leave of the lower Tribunal or this Court. He added that this being so renders the notice incompetent because the ruling of the lower Tribunal of 11/12/07 was not a decision as envisaged or contemplated by S.246 of the 1999 Constitution. According to learned Counsel, the Appellant filed the notice of appeal without leave of either the lower Tribunal or this Court apparently under the impression that since the ruling of the Tribunal finally disposes off the rights of the Appellant; he could appeal against the said ruling as of right. Learned Counsel went further to set out the provisions of S.246 (1) (b) (i) of the 1999 Constitution and submitted that for there to be an appeal as of right the election Petition must have been determined on the merits. He added that where a decision is made in the course of the proceedings such decision is one made in an election petition and is not covered by the provisions of S.246 (1) (b) (i) (supra). He also submitted that striking out of the petition of the appellant is a decision in the petition because it was made in the course of the proceedings but not a determination on the merits. It is also the opinion of learned Counsel that the lower Tribunal did not determine whether the 1st Respondent was validly elected as a member of the State House of Assembly therefore its decision does not fall within the contemplation of S.246. He argued further that while the decision is a final decision it was one made in the course of an election petition proceedings and the Constitution does not confer any right of appeal on the Appellant.
Learned Counsel referred to a number of pre and post 1999 decisions of the Courts on this issue and submitted that this appeal is incompetent and urged this Court to so hold and strike it out.
In arguing the alternative leg of the objection, learned Counsel took a swipe at all the grounds of appeal and in a one fall swoop submitted that they are incompetent for being in conflict with 0.6 r. 2 (2) and (3) of the Court of Appeal Rules 2007. According to learned Counsel some of the grounds of appeal are either of mixed law and fact, argumentative, unnecessarily lengthy or bear no nexus to the decision of the lower Tribunal. It is also the opinion of learned Counsel that some of the copious particulars do not directly flow from the grounds thereby making them incomprehensible etc. Learned Counsel also attacked all the 5 issues formulated from the grounds of appeal and characterized them as invalid and incompetent for not having been distilled from competent grounds of appeal. To support his arguments and submissions on this alternative ground of objection, learned Counsel relied on a plethora of decided cases such as TEMI HARRIMAN V. DR. ALEX IDEH & ORS (2007) 3 EPR 377 AT 388, GOV. OF EKITI STATE V. OSAYOMI (2005) 1 FWLR (PT.250) 75 AT 85 G-H e.t.c.
Based on these and other numerous decisions he cited learned Counsel urged us to strike out the entire grounds in the notice of appeal for being incompetent.
In his reply to the preliminary objection that the Appellant has no automatic right of appeal as of right against the decision of the lower Tribunal striking out his petition, learned Counsel to the appellant started with an explanation and submission that the interpretation placed on the provisions of S.246 (1) of the Constitution by learned Counsel to the Respondents was not only novel but mischievous and fundamentally out of con and out of place with current decisions of the Courts. He therefore urged us to discountenance all the submissions and arguments made by Counsel to the 1st Respondent based on his warped and mischievous interpretation of S.246 (1). In addition to this learned Counsel remarked that the ruling of the lower Tribunal striking out the petition of the appellant amounts to a decision within the meaning of S.318 of the 1999 Constitution. He then submitted that it is the trite that a decision which touches on the jurisdiction of a Court or Tribunal and which concluded the interest of parties at a trial Court is a final decision and not an interlocutory one.
With particular reference to the facts of this case, learned Counsel to the appellant opined that the decision of the lower Tribunal finally determined the interest of the parties when it struck out the petition as there was nothing more that could be done further without an appeal. He added that there would therefore be no need for any leave to appeal against that type of decision. He then referred to the case of OMATSOLA V. OMOVIE (2005) ALL FWLR (PT.263) 653 and pointed out that the notice of objection filed by INEC & ORS in that case was on all fours with the one filed by the Respondents in this appeal. He also added that the case of ORUBU V. INEC which was heavily relied on by the Respondents herein as the foundation of their objection was considered in OMATSOLA V. OMOVIE (supra) in which this type of objection was held to be without any basis or merit. He then went ahead to quote very extensively from the judgment in OMATSOLA (supra) at page 13 to 16 of his reply brief. Upon this, he submitted that the views expressed by the Respondents cannot be correct in the circumstances of this appeal.
Learned Counsel took on the position argued by the 2nd – 12th Respondents with respect to the recent decision in AMGBARE V. SYLVA & ORS (2007) 18 NWLR (PT.1065) and distinguished it from the facts and circumstances of the instant appeal. He pointed out that SYLVA relates to interlocutory appeal which touched on the issue of leave granted to the 2nd – 7th Respondents to file their reply to an election petition. Upon this distinction, learned Counsel remarked that this Court found that the appeal was indeed an interlocutory appeal which he pointed out was quite different from the present appeal that had to do with the striking out of an election petition. Furthermore learned Counsel drew the attention of the Court to other decisions such as UBA V. ENEMUO (2006) ALL FWLR (PT.311) 1951 and AWUSE V. ODILI (2003) 18 NWLR (PT.851) 116 and the very recent decision of the Supreme Court in ABUBAKAR V. Y AR ADUA (2008) ALL FWLR (PT.404) 1409 and urged this Court to follow this decision to dismiss this leg of the preliminary objection.
On the 2nd leg of the objection, learned Counsel referred to the case of APC LTD. V. NDIC NIG UNIVERSITY BANK LTD (2006) ALL FWLR (PT.335) 1 AT 24-25 GA where it was held that the essence of a ground of appeal is to apprise the opposite party of the nature of the complaint being raised therein. The Court held further that the overriding consideration is whether the ground being attacked was clearly stated or vague. Learned Counsel pointed out that even-though the grounds of appeal in APC (supra) were found to contain lengthy quotations from the judgment of the Court below with very lengthy particulars, the grounds were found not to be vague because they conveyed to the Respondent, the nature of the complaint of the appellant and to that extent were held to be competent. Based on this decision learned Counsel urged us to hold that the 2nd legs of the objections of the Respondents were baseless and intended to waste the precious time of this Court and further prayed that they be struck out for lacking in merit.
I have carefully examined the foregoing arguments of respective learned Counsel. I wish to point out straight away that the current state of the law does not support the position of respective learned Counsel to the Respondents herein that in the circumstance of the instant appeal, the appellant needs the leave of either the lower Tribunal or this Court to bring this appeal.In my humble view, the position of learned Counsel to the appellant is well supported by the decision of this Court in OMATSOLA V. OMOVIE (supra) and the recent decision of the Supreme Court in ABUBAKAR V. ‘YAR ADUA (supra) I also agree with learned Counsel to the appellant that on the authorities cited, including our unreported decision in MRS. MARIAN ALI & ANOR V. SENATOR OSAKWE & ORS in Appeal No. CA/B/EPT/261/2007, that the test to determine whether a decision is interlocutory or final is whether or not it determines the right of the parties. It is the nature of the order made and its effect rather than the nature of the proceedings from which it emanated.
Since the decision of the lower Tribunal in its ruling of 11/12/07, striking out the petition is in the nature of a final order, there is no need for the appellant to seek the leave of the lower Tribunal or this Court to bring this appeal. The 1st leg of the objections of the respective Respondents is hereby dismissed for lacking in merit.
With respect to the 2nd legs of the objections, I have closely and carefully looked at the grounds of appeal and their respective particulars. In my view, though the particulars to the grounds are lengthy and prolix, having regards to the decision of the lower Tribunal they cannot by any stretch of imagination be characterized as vague or meaningless. I am fully and absolutely satisfied that each of the 10 grounds of appeal conveys a specific complaint against the ruling of 11/12/07. I have no doubt at all that the Respondents are absolutely abreast of all the issues that arose from the grounds of appeal. There is an effective communication of the complaint of the appellant on the ruling of the lower Tribunal. I therefore hold without much ado that all the grounds of appeal herein are competent. In the circumstances, the two legs of objections raised and argued by the Respondents in a substantially identical fashion are hereby dismissed for being unmeritorious and frivolous as well as a time wasting strategy to delay the speedy determination of this appeal.
Having dismissed the respective objections of the Respondent, I now turn my attention to the issues in this appeal. Out of the 5 issues formulated by the appellant from the 10 grounds of appeal and which were adopted and argued by the Respondents in their respective briefs, I wish to start with issue No.5 due to what I consider to be its profound and cornerstone effect in this appeal. The 5th issue was formulated thus: –
“Did the Tribunal consider at all or adequately the evidence the petitioner placed before it and all legal submissions in support of Petitioner’s argument before arriving at the decision which considered the issues from Respondents’ sides only.”
The reason for adopting this issue 5 as the main and most relevant issue to consider at this stage, having regards to all the features of this appeal will become very apparent in due course.
In arguing this issue, learned Counsel to the Appellant opened by pointing out that he would rely on some of the earlier submissions already made in respect of issues 2, 3 and 4. Also, closely connected with this, learned Counsel pointed out that the motions of the Respondents before the lower Tribunal were argued based on the supporting affidavits to the motions and the notice of objection of the Petitioner/Appellant. According to learned Counsel, the most remarkable feature of the case of the Petitioner/Appellant was the authenticated and official ballot paper used for the conduct of the 14th April, 2007 election into Aniocha South State Constituency. This ballot paper was exhibited thereby being evidence before the Court. Learned Counsel argued that none of the Respondents denied this ballot paper. Learned Counsel added further that because the Respondents were, according to him, fully aware of the fraud perpetrated at the election by mere looking at that ballot paper did not counter the fact of its existence or that it was indeed the ballot paper used for the election in question. In addition to this, learned Counsel maintained very forcefully that the lower Tribunal did not make any mention of this ballot paper throughout its ruling of 11/12/07. For example, learned Counsel submitted that a review of the evidence on that ballot paper would have correctly answered many of the questions which the Tribunal answered in manifest error. He then pointed out such questions which arose out of the issue of the impossibility of knowing all the names of the candidates so as to plead them. So also, it could have shown that during the conduct of the election the electorate voted for parties rather than candidates. It was also the view of learned Counsel that in consequence of votes being cast for parties rather than candidates it would be a legal impossibility to state scores of candidates when the electorate in the first place never voted for candidates and neither did the 2nd Respondent announced scores of candidates but those of political parties. According to learned Counsel these facts were all deposed to in the Counter affidavit that was not considered or evaluated by the lower Tribunal.
While referring to the now very famous case of AMAECHI V. OMEIHA, learned Counsel argued that because votes were cast and declared for political parties only a proper evaluation of the Counter affidavit and the ballot paper would have whittled down the undue regard the lower Tribunal gave to the issue of stating scores of political parties against the names candidates and thereby making a distinction from the legal authorities relied on and which reliance led to the striking out of the petition.
There are a number of other arguments around this ballot paper evidence and also the Counter affidavit. We have seen the ballot paper. We do not think it is proper in the circumstance to embark on a further examination and/or consideration of these issues and the arguments on them. Our reason for adopting this minimum posture would become very obvious in due course.
In arguing this issue learned Counsel to the 1st Respondent at page 65 of his amended brief tried to adopt the posture of the proverbial ostrich that buried its head in the sand. Learned Counsel sought to wish this issue away. While arguing it, he submitted that it is incompetent and ought to be discountenanced for not being distilled from any of the grounds of appeal. He relied on the cases of ACB PLC V. EMEDO (2003) 10 NWLR (PT.828) 244 and IKE V. ENANG (1999) 6 NWLR (PT.602) 261 and submitted that an issue that has no ground of appeal covering it is a non-issue and ought to be struck out. He accordingly urged us to strike out issue NO.5.
It is manifestly clear that the arguments of the 2nd – 12th Respondents on this issue No. 5 is a full reproduction word for word of the submissions of learned Counsel to the 1st Respondent. This also is true of many of the key submissions on most of the crucial issues in this appeal. This is an unholy alliance. It is a romance that ought not to be. It smacks of “something more than meets the eye” situation. Or is it, the more you look the less you see situation.
The submissions of respective learned Counsel for the Respondents that issue No. 5 did not arise from the grounds of appeal is very misleading and highly mischievous. We say so because we are abreast of all the 10 grounds of appeal. I have carefully considered grounds 6 and 8 of the grounds of appeal along with their particulars. I hereby set them out in full as follows:-
GROUND SIX
The learned Tribunal erred in law and on the facts when they struck out the Petition on the ground that it was incompetent and defective when it had discretion to exercise which discretion, ought to have been exercised to hear the petition on the merits instead of having it struck out.
PARTICULAR OF ERROR
i. Paragraph 4(6) of the 1st Schedule of the Electoral Act, 2006 used the word “May” to direct what the Tribunal has power to do for non-compliance with paragraph 4(1)(c) and by the use of the word “May” the Honourable Tribunal has a discretion to exercise but failed to do so.
ii. The Tribunal ought to have exercises its discretion in Petitioner’s favour since doing otherwise will extinguish the Petitioners right to have his Petition heard on the merits particularly in view of paragraph 5 and 49(i) of the 1st Schedule to the electoral Act, 2006.
iii. The Tribunal ought to have refused striking out the Petition and should have exercises its discretion to allow a supply of further particulars of the documents pleaded.
GROUND EIGHT
The learned Tribunal erred in law and on the facts in holding that the scores stated were not the scores of candidates but that of political parties and thereby came to a wrong decision.
PARTICULARS OF ERROR
i. Having clearly stated in paragraph 1 of the Amended petition that normal persons contested the election under various political parties, it is therefore impossible to hold that the scores stated were scores of political parties and not the candidates.
ii. A combine reading of paragraph 1 and 25 of the Amended Petition has more than enough material facts on which to come to the conclusion that scores stated were for the candidates of the political parties that participated in the election.
iii. The true facts before the Tribunal were that from the ballot paper Independent National Electoral Commission (INEC) conducted the election for the political parties as they did not state the names of the candidates for the election in the ballot papers for the election.
iv. Arising from particulars 3 above it follows that the electorate actually thumb printed for the political parties of their choice and INEC in declaring the result followed the pattern in the ballot papers by putting the result against the political parties.
v. INEC in paragraph 3 of its Reply to Amended Petition and indeed 1st Respondent also in her Reply to Amended Petition and the Dispositions in support of the respective Replies to petition unequivocally admitted that the result declared were as pleaded by the Petitioner except for the scores of four candidates.
vi. Petitioner was not expected to do the impossible caused by the blunder of by INEC having conducted and announced results for political parties even though common sense dictates that the result were for the candidates of the political parties that participated in the election.
It is quite discernible and obvious that ground 8 effectively covers issue NO.5. With respect to ground 6, it is a complaint against improper use of discretion by the lower Tribunal. An improper exercise of discretion was one that was not done judicially and judiciously or characterized by arbitrariness. This is trite under our law having been decided by a plethora of authorities.
If all the relevant evidence before a Court was not taken into account in arriving at a decision, that decision is most likely to be devoid of good quality. The evidence put forward by the Petitioner/Appellant in our humble view was not fully taken into account and properly evaluated. I therefore agree with and accept the submissions of learned Counsel to the appellant on issue No.5. Inc on sequence of this, I also discountenance the submissions of Counsel to the Respondents for being a total misconception.
An appeal is essentially a re-hearing based on the record of the lower Tribunal transmitted to this Court. From the records on the instant appeal, the lower Tribunal deemed the Petitioner/Appellant’s Petition as having been properly filed and served. This order was made on 11th July, 2007. After the Petition has escaped the onslaught of the Respondents vide another attack on it by way of a motion of the 1st Respondent dated 2/7/07, the lower Tribunal resolved all the 5 issues it considered in that application in favour of the Petition. Upon the resolution of these issues in favour of the Petitioner/Appellant, the lower Tribunal went on to hold and order at page 801 of the record that: –
“In the final analysis it is the considered view of the Tribunal that the 1st Respondent’s motion on notice is without any merit and is accordingly refused. The tribunal will proceed to full hearing of this Petition.” (Underlining mine for emphasis).
It was this same petition that was deemed properly filed and served and later given a clean bill of health and given the green light to proceed to hearing that failed to meet the target and only to fall on the way side as a casualty. Prior to the leave granted to the Petitioner/Appellant to amend his petition on 11/7/07, the only thing lacking in it was the petitioner’s address for service. Though, an address for service is required in a petition pursuant to paragraph 4 (4) of the 1st Schedule to the electoral Act 2006, the lower Tribunal did well in allowing the infinitesimal amendment.
In granting leave to the 1st Respondent to bring the motion of 22/10/07, the lower Tribunal used its discretion under paragraph 6 (1) of Practice Directions 2007. Under this paragraph leave to file and argue motions after the closing of pleadings could be granted in extreme circumstances
What is the extreme circumstance that warranted the granting of leave to challenge a petition that had already been deemed as properly filed and served and also having been later found to be satisfactory enough to merit a full blown trial? In my humble view, I do not see any extreme circumstance. There surely could not be any. What were lacking and that led to the whimsical and capricious belated striking out of the petition were failure to give the scores of candidates and non-attachment of supporting particulars to the amended petition etc.
According to paragraph 5 of the 1st Schedule to the Electoral Act, 2006, evidence need not to be stated in the election petition. There is reserved for the lower Tribunal under this paragraph discretion to order the petitioner to file further particulars where the circumstances make it necessary.
How did the lower Tribunal fail to exercise this discretion in favour of the petition but leaned on the side of the parties seeking to sentence the petition to a pre-mature is unimaginable. I do not see any basis for the lower Tribunal to have failed to exercise its discretion in favour of the hearing of a petition it had already passed as proper, having substantially complied with the law.
In view of the foregoing analysis, I am of the humble but firm view that issue No.5, having been properly formulated, must be resolved in favour of the appellant. It is hereby accordingly so resolved in favour of the Appellant. Having resolved this issue as such, the order striking out the petition was without any foundation or justification. It did not proceed from a judicious exercise of discretion. It therefore cannot stand and it is hereby set aside.
The consequence of setting aside the order striking out the petition is to order for a new trial. Some of the submissions and arguments of respective learned Counsel in issues 1, 2, 3 and 4 herein will, without any doubt, profoundly impact on the new trial. It would therefore be prejudicial to the parties if I begin to look into them or to even make any finding on them. Therefore, since issue No. 5 has sufficiently disposed off this appeal, I see no apparent good reason to consider the argument of respective learned Counsel on issues 1, 2, 3 and 4.
This appeal succeeds and it is hereby allowed. The order of the Lower Tribunal striking out petition is set aside. Petition shall be heard de-novo by another Tribunal established or to be established for Delta State.
The Cross-appeal of the 1st Respondent remains overtaken by events. I do not see any merits in it. It has become academic and it is accordingly dismissed. There is no order for costs both in respect of the appeal and the cross – appeal.
Other Citations: (2008)LCN/2908(CA)
