Chief Emmanuel Osita Okereke V. Alhaji Umaru Musa Yar’adua & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
ABBA AJI, J.C.A.
The petitioner/applicant was a candidate sponsored by the African Liberation Party (A.L.P.) a registered political party at the election into the office of President of Federal Republic of Nigeria held on the 21st April, 2007, wherein the 1st and 2nd respondents were returned elected as the President and Vice President of the Federal Republic of Nigeria respectively.
Dissatisfied with the conduct of the election and the return of the 1st and 2nd respondents as the President and Vice President respectively, the petitioner/applicant petitioned this court vide a petition dated and filed on the 21st day of May, 2007, challenging the conduct of the election and the return of the 1st and 2nd respondents upon the following three (3) grounds as contained in paragraph 4 of the petition. The grounds as stated are:
(i) That the 1st and 2nd respondents were at the time of the said election not qualified to contest the election into the offices of the President and Vice President of Federal Republic of Nigeria respectively in that both of them were indicted for offences/breaches of law by Administrative Panel of Inquiry set up by Abia State Government on the activities of some persons and serving/past government functionaries between 1999-2007 dated 21/2/07, and which indictment was accepted by the Government of Abia State in its white paper, the petitioner shall at the trial found upon the copy of the said white paper.
(ii) The petitioner shall also at the trial lead evidence and contend that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.
(iii) The petitioner further avers that at the trial he shall lead evidence and contend that he was validly nominated for the election but was unlawfully excluded at the said poll.”
By a motion on notice dated and filed on the 8th August, 2007, brought pursuant to paragraphs 5 and 14(1) of the Rules of Court Practice for Election Petition; Order 26 rules 6, 7(1); Order 27 rule 1; Order 41 rule 3; Federal High Court (Civil Procedure) Rules, 2000, the petitioner/applicant prayed for the following orders:
(a) AN ORDER for petitioner/applicant to furnish better and further particulars in his petition in terms of the accompanying schedule hereto attached and marked as exhibit ‘A’.
(b) LEAVE of this tribunal to allow the petitioner/applicant to adduce and rely on the following attached proposed documents, to wit.
(i) list of documents relied upon marked exhibit “C”,
(ii) written deposition of petitioner marked exhibit “D”,
(c) AND for such further orders as the tribunal may deem fit to make in the circumstances.
The motion is supported by a 9 paragraph affidavit deposed to by the petitioner/applicant, Chief Emmanuel Okereke himself. Annexed to the supporting affidavit are three (3) exhibits, i.e. ‘A’, ‘C’ and ‘D’. Exhibit ‘A’ is the schedule of better and further particulars; exhibit ‘C’ is the list/copies of documents to be relied on by the petitioner/applicant, while exhibit ‘D’ is the written deposition of the petitioner. The application is also supported by a written address. Learned counsel formulated this issue for determination, viz:
Whether the petitioner/applicant is entitled to the amendment sought as prayed.
At the hearing of the application, learned counsel for the petitioner/applicant, Chief Tagbo Ike Esq. adopted and relied on his submission and urged us to grant the prayer sought. It is his view that the petitioner/applicant is entitled to the amendment sought as prayed as the failure to include the particulars and the written deposition of witness is only a breach of the rules of practice and does not render the petition a nullity. It is also his view that the defects are curable under paragraphs 5 and 14(1) of the 1st Schedule to the Electoral Act, 2006 and Order 26 rules 6, 7(1), Order 27 rule [2008] 6 NWLR Okereke v. Yar’adua (AbbaAji, J.C.A.) 55 A 1, Order 41 rule 3 of the Federal High Court (Civil Procedure) Rules 2000. Tagbo Ike Esq., further submitted that the petitioner/applicant had deposed in paragraphs 2 and 3 of his petition as to his contention that the 1st and 2nd respondents were not qualified at the time of the election to contest a Presidential election and the fact that he omitted to state the factual basis upon which he holds that contention and those in support of all the reliefs sought, which he now seeks to regularize to sustain all the grounds and reliefs of petition. It is also submitted that the provision of Order 27 rule 1 of the Federal High Court (Civil Procedure) Rules, 2000 gives the court unfettered powers to amend a petition so long as the aim is to determine the real questions in controversy or issue raised in the proceedings, placing reliance on the famous dictum of Bowen, L.J. in Cropper v. Smith (1884) 26 Ch.D: 700 at pages 710-711. Learned counsel also placed reliance on paragraphs 5 and 14(1) of the 1st Schedule to the Electoral Act and also paragraph 49(1) and (4) of the said 1st Schedule to the Electoral Act. We were urged to grant the prayers as contained in the motion paper.
Chief Wole Olanipekun, SAN, learned senior counsel for the 1st and 2nd respondents opposed the application. He submitted that they have filed a notice of preliminary objection to the petition dated and filed on 23/7/2007. Responding to the application, he submitted that the application is misplaced in the sense that by virtue of paragraph 17(1) of the 1st Schedule to the Electoral Act, 2006 it is the respondent to a petition that can ask for further particulars from, petitioner and not a petitioner asking for further particulars for himself. He submitted that, to that extent the court cannot grant prayer
(a) on the motion paper. It is also submitted that if the petitioner is indirectly asking for an amendment to the petition, that this court has no jurisdiction to grant an amendment as proposed in exhibit ‘A’ schedule to the amendment i.e. better and further particulars in view of paragraph 14(2) (a) (ii) and (iii) of the 1st Schedule to the Electoral Act, 2006. It is also further submitted that paragraph 1 of the better and further particulars refers to a new ground and paragraph 2 is inserting a new petition. It is his view that the amendment contains three (3) pages while the petition has four (4) pages which he submitted is a substitution of the original petition which is statute barred. Learned senior counsel also referred to paragraph 17(3) of the 1st Schedule to the Electoral Act, 2006 and submitted that even if the petitioner is asking for better, and further particulars, he cannot go beyond the ambit of his original petition. It is further submitted that prayer (b) on the motion paper is statute barred in view of paragraph 1(1)(a), (b) and (c) and (2) of the Court Practice Directions, 2007. He referred to the case of Jang v. Dariye (2003) 15 NWLR (pt.843) 436 at 460 and urged the court to refuse the amendment sought.
Learned senior counsel for the 3rd – 35th respondents Agabi, SAN associated himself with the submission of learned counsel for the 1st and 2nd respondents. It is his view that the only application that the court can grant after the time for bringing the petition has expired are the formal ones. It is also his view that the present application is one touching on jurisdiction of the court and that the application itself is an admission that the petition is incompetent. We were urged to dismiss the petition.
In his response, Chief Ike Esq. submitted that the reference to paragraph 17(1) of the First Schedule to the Electoral Act, 2006 that only a respondent can request for further particulars is misleading and thus the submission falls to the ground. With regard to the time limit for amendment under paragraph 14 of the Electoral Act, learned counsel submitted that none of the amendment sought is for prayer or ground but that what they requested is for factual details to go into the petition.
In considering this application, I will adopt the sole issue formulated for determination by the learned counsel for the petitioner/applicant Chief Tagbo Ike Esq. The issue is whether the petitioner/applicant is entitled to the amendment sought.
It is clear from the issue formulated for determination that what the petitioner/applicant is asking for is an amendment to the petition which he guised as an application to furnish better and further particulars in his petition. In fact, the petitioner/applicant has conceded to this fact that what he is asking the court is for amendment to his petition. Of course a petitioner in an election petition does not furnish himself with better and further particulars in his petition. See paragraph 17(1) and (3) of the Electoral Act, 2006. In fact paragraph 17(3) provides that supply of further particulars under this paragraph shall not entitle the party to go beyond the ambit of supplying such further particulars as have been demanded by the other party and embark on an undue amendment of or additions to his petition or reply, contrary to paragraph 14 of this schedule.
The underlying is for emphasis to show that there ought to be a demand from either the respondent to the petitioner in respect of reply to the petition. It is therefore beyond peradventure for a petitioner to apply to supply further particulars to his petition.
The question now is, is the petitioner entitled to the amendment sought as prayed?
Paragraph 14(1) of the 1st Schedule to the Electoral Act, 2006 provides as follows:
“14(1) Subject to subparagraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted for the words “the election petition or reply.”
Thus, by the provisions of this paragraph, an election tribunal or court is enjoined to use the Civil Procedure Rules of the Federal High Court relating to amendment of pleadings. The said rules will apply in relation to the election petition or a reply to the petition by a community reading of the paragraph with paragraph 50 of the Act.
By paragraph 14(2) of the First Schedule to the Electoral Act, 2006, after the expiration of the time limited by:
“(a) Section 141 of this Act for presenting election petition, no amendment shall be made –
(i) introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original election petition filed; or
(ii) affecting a substantial alteration of the ground for, or the prayer in, the election petition; or (iii) except anything which may be done under the provisions of sub-paragraph (3) of this paragraph, effecting a substantial alteration of or addition to the statement of facts relied on to support the ground for, or sustain the prayer in the election petition, and
(b) Paragraph 12 of the Schedule for filing the reply, no amendment shall be made –
(i) alleging that the claim of this seat or office by the petitioner is incorrect or false; or
(ii) except anything which may be done under the provisions of sub-paragraph (3) of this paragraph, effecting any substantial alteration in or addition to the admissions or the denials contained in the original reply filed, or to the facts set out in the reply.”
Section 141 of the Electoral Act, 2006 provides:-
“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
The expression “subject to” used in paragraph 14(1) (supra) introduces a condition, a proviso, a restriction, and a limitation. The expression subordinates the provisions of the subject to the section referred to which is intended not to be affected by the provisions of the latter. Thus, by the joint interpretation of the said paragraph, and section 141 of the Act, restrictions are placed on the part of the petitioner in the amendment of his petitions. The essence of it all is that substantial amendments will not be allowed after the expiration of the period of thirty (30) days following the presentation of the petition. Therefore, the proper construction of paragraph 14(1) of the First Schedule to the Electoral Act, 2006 is that, the petitioner who intends to amend his petition must make the necessary application therefore within the period of 30 days permitted for presenting a petition under section 141 of the Act. See Yusufu v. Obasanjo (2003) 16 NWLR (Pt. 847) 554; fang v. Dariye (2003) 15 NWLR (Pt. 843) 436; Obi-Odu v. Duke (No.2) (2005) 10 NWLR (pt. 932) 105 and Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303.
In the instant case, the petition was filed on the 21st May, 2007 and the application for amendment was filed on the 8th August, 2007, a period of more than two months after the petition was filed. To grant the proposed amendment which seeks to add three (3) pages to the original 4 page petition will radically change the complexion of the petition after the time limited by section 141 of the Act has elapsed. The application is clearly statute barred.
Although a petitioner would appear to be at liberty to amend his petition at any stage of the proceedings in an election petition, given the import of Order 27 rule 1 of the Federal High Court (Civil Procedure) Rules, which are applicable in election proceedings, the application of the particular rule is by virtue of paragraph 50 of the First Schedule to the Electoral Act, 2006, subject to the express provision of the Act. Consequently, Order 27 rule 1 of the Federal High Court (Civil Procedure) Rules, 2002, cannot prevail over the clear provisions of the Electoral Act which disallows the amendment of an election petition at the time and in the form the petitioner wanted to effect. See Government of Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592. Consequently, the amendment sought by the petitioner is made in breach of the statutory requirement relating to amendments and should not therefore be allowed. The application is statute barred and same is hereby dismissed.
In as much as it is conceded by the learned counsel for the petitioner/applicant that the refusal by the court of his application means the collapse of the petition, I will nonetheless proceed to consider the merit of the notice of preliminary objection to the petition by the learned counsel for the 1st and 2nd respondents, Chief Wole Olanipekun, SAN dated and filed on the 23rd July, 2007. The notice is challenging the competence of the petition as follows:
(i) The petition as presently constituted is devoid of any cause of action frivolous, vexations and an abuse of process of the court.
(ii) The petitioner did not comply with the mandatory provision of the Election Tribunal and Court Practice Directions, 2007.
(iii) The petitioner lacks the locus standi to present this petition.
In his written submission, the learned senior counsel submitted on the 1st ground of objection while referring to the three grounds of the petition as shown in the petition, that there is no pleading of any facts in the petition to show that the petitioner being aware of the alleged indictment by the Abia State Government of the 1st and 2nd respondents took the steps provided under section 32(1) of the Electoral Act, 2006. It is his submission that an indictment which boarders on qualification cannot now be raised before this court citing in support the decision of this court in fang v. Dariye (2003) 15 NWLR (Pt. 843) 436 at 460, and Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 at 596.
On ground 2 of objection, Olanipekun, SAN submitted that the petition as presently constituted is in breach of the mandatory provisions of paragraph 4(1)(d) of the 1st Schedule of the Electoral Act, 2C06. It is submitted that under paragraph 4 of the petition, the petitioner itemized the grounds of his petition without pleading any fact relied upon on those grounds. The following cases were relied upon, Galauda v. Kamba (2004) 15 NWLR (Pt. 895) 31; (2005) All FWLR (Pt. 288) 1119; Nuhu Sani Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334 at 352, and General Muhammadu Buzari & Ors. v. Alh. Mohammed Dikko Yusuf (2003) FWLR (Pt. 174) 329; (2003) 4 NWLR (Pt. 841) 446 at 498-499.
It is also submitted that ground 2 of the petition contains no facts to support the ground that the Election was invalid by reason of corrupt practices and non compliance with the provision of Electoral Act 2006. The following cases were cited. Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 682-3; H.S. Eng. Co. Ltd v. S.A. Yakubu (Nig.) Ltd. (2003) 10 NWLR (Pt. 829) 505 at 523; and Ogbimi v. Ololo (1993) 7 NWLR (Pt. 304) 128 at 135.
On the 3rd relief, it is submitted that there is no pleading of any fact to give any cause of action to the petitioner for the alleged unlawful exclusion. It is the view of the learned counsel that it is not enough to state the ground in an election petition but facts giving rise to that ground must be stated to constitute a cause of action thereto. It is also submitted that removal of party logo is not a ground recognized under section 145 of the Electoral Act, 2006 for bringing an election petition. We were urged to follow the decision of this court in petition No. CA/A/EP/1/2007, between Dr. Olapade Agora v. Alhaji Musa Yar’dua & Ors. delivered on the 20/7/2007. It is further submitted that the failure to support the three grounds with facts which are sine qua non to their validity under paragraph 4(1)(a) and (d) of the 1st Schedule to the Electoral Act, 2006 makes the entire petition incompetent.
It is further submitted that witness statement on oath was not attached to the petition and that by paragraph 1 of the Election Tribunal and Court Practice Directions 2007, it is mandatory for the petitioner to attach written statement of witnesses to the petition. It is submitted that failure to comply with this rule makes the petition incompetent and we were urged to strike it out.
On ground 3 of objection it is submitted that, it is not enough for petitioner to simply state that he was a candidate at the election where he was unlawfully excluded without complying with section 131(c) of the 1999 Constitution of the Federal Republic of Nigeria which stipulates the sponsorship of a candidate by a political party in an election. It is submitted that there is nowhere in the pleading or the witness statement on oath that he was dully nominated. It is the view of learned senior counsel that the relief filed in the petition borders on failure to display the party logo and not the exclusion of the candidate, the proper party to bring the petition is the political party by virtue of section 131(c) of the Constitution and section 80 of the Electoral Act, 2006. This court is therefore urged to strike out the petition on this ground. The following cases were cited to buttress the submission, Thomas v. Olufosoye (supra); Adesanya v. The President Federal Republic of Nigeria & Anor. (1981) 2 NCLR 358; and Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242 at 287.
Learned senior counsel for the 3rd-35th respondents, Kanu Agabi SAN associated himself with the submissions of learned counsel for the 1st and 2nd respondents, Olanipekun, SAN on the preliminary objection.
It is submitted that the petition is purely academic. That a petition which takes the ground without stating the facts for these grounds is academic and if the petitioner states the facts without the grounds is also academic and that is the state of the present petition. We were urged to strike it out.
In his response to the application, learned counsel for the petitioner/respondent, Chief Tagbo Ike Esq. is of the view that the success of his application for amendment will be his reply to the preliminary objection, however, on the issue of locus standi, learned counsel referred to paragraphs 1 and 2 of his petition and urged the court to discountenance same and overrule the preliminary objection.
In my view, the issue that calls for determination in this application is whether the petition as presently constituted is competent.
The petition filed by the petitioner/applicant challenging the election and return of the 1st and 2nd respondents contains four (4) paragraphs and it is hereby reproduced.
“1. Your petitioner, Chief Emmanuel Osita Okereke was a candidate sponsored by a registered political party. African Liberation Party (A.L.P) at the election into the office of President of Federal Republic of Nigeria purportedly held on 21st April, 2007 wherein the 1st & 2nd respondent were returned elected as the President and Vice-President of Federal Republic of Nigeria respectively.
- Your petitioner avers that election he was qualified to contest the election and has no disability whatsoever to stand at the said election. And further state that he was duly nominated by the said political party and which said nomination was accepted and screened by the 35th respondent after its verification exercise.
- Your petitioner avers that he contested the said election with the 1st respondent and other twenty-two candidates and the result of the election as posted by the 35th respondent on its web-site is as follows: (Details provided in the petition) Grounds and facts relied by petitioner
- Your humble petitioner shall at the trial rely and contend on three grounds as basis to invalidate or void/nullify the election or return of the 1st and 2nd respondents as President and Vice-President of Federal Republic of Nigeria respectively, to wit:-
(i) That the 1st and 2nd respondents were at the time of the said election not qualified to contest the election into the offices of the President and Vice-President of Federal Republic of Nigeria respectively in that both of them were indicted for offences/breaches of law by Administrative Panel of Inquiry set up by Abia State Government on the activities of some persons and serving/past government functionaries between 1999 – 2007 dated 21/7/07,and which indictment was accepted by the Governor of Abia State in its white paper, the petitioner shall at the trial found upon the copy of the said white paper.
(ii) The petitioner shall also at the trial lead evidence and contend that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.
(iii) The petitioner further avers that at the trial he shall lead evidence and contend that he was validly nominated for the election but was unlawfully excluded at the said poll”
Whereof your petitioners pray that it may be determined as follows:-
(i) A declaration that the 1st and 2nd respondents were not qualified to contest the offices of President and Vice-President of Federal Republic of Nigeria in that both were at the time of the election disqualified by their respective indictments by Administrative Panel of Inquiry set up by Abia State Government in the wise of section 137(1)(d)(i) Constitution of the Federal Republic of Nigeria, 1999.
(2) A declaration that the omission of the 35th respondent in removing the petitioner’s party logo/symbol in most of the States of the Federation and Federal Capital Territory amounts to unlawful exclusion at the presidential election held on April, 2007.
(3) An order canceling/nullifying the return of the 1st and 2nd respondents as President and Vice-President of Federal Republic of Nigeria respectively at the Presidential election held on 21st April, 2007.
(4) An order canceling/nullifying the presidential election held on 21st April, 2007 and directing the 35th respondent to conduct fresh/and/or bye-election into the offices of President and Vice-President of Nigeria.
It is clear from the contents of the petition as reproduced above, that it is devoid of any cause of action. The petition failed to comply with the mandatory provisions of paragraph 4(1)(d) of the 1st
Schedule to the Electoral Act, 2006. By virtue of paragraph 4(1)(d) of the 1st Schedule to the Electoral Act, 2006, an election petition under the Act shall clearly state the facts of the election petition and the ground or grounds on which the petition is based and the relief sought. In the instant petition, there were no facts pleaded by the petitioner to support the three grounds of the petition challenging the election and return of the 1st and 2nd respondents. It is trite that an election petition which does not conform to paragraph 4(1)(d) is defective and may be struck out by the court. In fact a petition containing only three paragraphs is to say the least short of facts and details sufficient enough to challenge Presidential election covering 36 States of the Federation and the Federal Capital Territory of geographical entity called Nigeria. Such a petition cannot be allowed to stand. It is certainly incompetent. The petition also fails to comply with the provisions of paragraph 1(1)(a), (c) and (2) of the Election Tribunal and Court Practice Directions 2007, which provides as follows:-
- All petitions to be presented before the tribunal court shall be accompanied by
(a) list of all the witnesses that the petitioner intends to call in proof of the petition;
(b) written statement on oath of the witnesses; and
(c) copies or list of every document to be relied on at the hearing of the petition.
- A petition which fails to comply with sub-paragraph (1) of this paragraph shall not be accepted for filing by the Secretary.
In the instant petition there was no list of witnesses that the petitioner intends to call in proof of his petition and written statement of witnesses on oath and copies or list of documents to be relied on for the hearing of the petition were also not attached to the petition as required by the Court Practice Directions, 2007. Though it is my candid view that the petitioner has the locus standi to present the petition by virtue of section 144(1)(a) of the Electoral Act, 2006, nonetheless, the petition as presently constituted is not only defective but incurable defective and ought it is hereby allowed. The petition dated and filed on the 21st May, 2007 is hereby struck out for being incompetent.
I make no order as to costs.
Other Citations: (2007)LCN/2504(CA)
