Chief Sergeant Chidi Awuse V. Dr. Peter Odili & Ors (2003)
LawGlobal-Hub Lead Judgment Report
D. MUHAMMAD, J.C.A.
On the 19th day of April, 2003, the Independent National Electoral Commission (hereinafter referred to as “INEC”) conducted elections throughout the country, for the election into the offices of the President of the Federal Republic of Nigeria and the Governors of the thirty six States. In Rivers State of Nigeria, there were several candidates, who contested for the office of the Governor, among whom were chief sergeant Chidi Awuse, the appellant herein, who was sponsored by the All Nigeria Peoples Party and Dr. Peter Odili, the first respondent herein, who contested on the platform of Peoples Democratic Party. At the conclusion of the election, Dr. Peter Odili was on the 20th day of April, 2003, returned as the winner.
The appellant was not satisfied with the result and as such, he filed an election petition No. NAGLHEP/RV/1/2003 in the National Assembly/Governorship and Legislative Houses Petition Tribunal, Rivers State, challenging the result of the election. In the petition, Dr. Peter Odili was made the first respondent. INEC was the 2nd respondent. The Rivers State Resident Electoral Commissioner was the 3rd respondent, while the returning officer, Rivers State was the 4th respondent. Various electoral officials that took part in the conduct of the election were joined as 5th to 327th respondents.
Part of the petition reads:
“1. The petition of Chief Sergeant Chidi Awuse of No. 3D Wouodi Close, Off Olu-Obasanjo Road, G.R.A., Phase 3, Port Harcourt and of Emohua Local Government Area of Rivers State.
2. Your petitioner, Chief Sergeant Chidi Awuse, was a candidate, under the platform of the All Nigeria Peoples Party (ANPP) for the governorship election of Rivers State.
3. Your petitioner, states that the election was held on April 19th, 2003, when the petitioner and Dr. Peter Odili, the 1st respondent, were candidates; and on April 20th, 2003, the 4th respondent declared that the 1st respondent received 2,098,692 votes and the 1st respondent was declared to be duly elected.
4. Your petitioner states that the 1st respondent was not duly elected by a majority of lawful and/or valid votes cast at the election.
5. Your petitioner avers that the votes cast at the said election were not correctly added up or counted at the ward, Local Government & State collation centres in that the figures added up at the collation centres, were either not those actually recorded at the polling stations (where no elections took place) or they were not based upon correct figures of actual votes at the polling stations (where elections took place)”.
The petition in paragraph 112 concluded with the following prayer:
“WHEREOF your petitioner prays that it may be determined that the said Dr. Peter Odili, the 1st respondent was not duly elected or returned and that his election was void or that the election is void on the grounds that it was not conducted substantially in accordance with the provisions of Part 11 of the Electoral Act, 2002, or as the case may be.”
The 1st respondent then filed a notice of intention to rely upon a preliminary objection as follows:
“TAKE NOTICE that the 1st respondent herein named intends at the hearing of the petition to rely upon the following preliminary objection, notice whereof is hereby given to you, viz
The petition herein, is fundamentally defective for failing to comply with Electoral Act, 2002 and should therefore be struck out.
And take notice that the grounds of the said objection are as follows:
1. The said petition is not in accordance with the provisions of Part VII of the Electoral Act, 2002, and the provisions of the 1st Schedule of the Act.
2. The petition does not state the names of all the candidates at the election and the votes of each candidate and the person returned as the winner of the election as required by paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002.
3. The candidates at the said election were more than the candidates mentioned in paragraph 3 of the said petition.”
In support of the preliminary objection, the 1st respondent filed an affidavit of 8 paragraphs. The appellant filed a 14 paragraphs counter-affidavit. After hearing the submissions of all the counsel in the matter, the tribunal in a reserved ruling, struck out the petition.
In its ruling, after quoting the provisions of paragraph 4 of the 1st Schedule to the Electoral Act, 2002, the tribunal stated:
“The attitude of the courts to this provision of the Electoral Act is that it is mandatory, substantial and never procedural. In fact, due compliance with it is a condition precedent and sine qua non to the filing of a competent and valid election petition. Failure to comply with it is not a mere irregularity rather it is fatal as such that it cannot be said that there is a valid election petition before the tribunal.”
The tribunal then goes on to say:
“The petitioner/respondent contended that he had stated names of candidates and the votes scored in the election petition. However, considering the affidavit evidence before the tribunal the names of the candidates and the votes scored by them as indicated in the election petition have not satisfied the provisions of paragraph 4(1)( c) of the First Schedule to the Electoral Act, 2002.
Consequently, the provisions of paragraph 4(6) thereof will have to be called in aid, since it makes any petition that does not comply with the said paragraph 4(1)(c) or any provision of the sub-paragraph defective.
Consequently, the only option open to the tribunal in the circumstance is to strike out the petition as it has no jurisdiction to entertain it…
It is for this reason that this tribunal finds that the present election petition is defective and must be struck out and it is hereby accordingly struck out. There shall be no order as to costs.”
Aggrieved with this decision the petitioner (hereinafter called the “appellant”) appealed to this court.
The grounds of appeal shorn off their particulars read:
(i) ERROR IN LAW
The election tribunal erred in law, when it struck out the appellant’s petition on the grounds of non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002.
(ii) ERROR IN LAW
The election tribunal erred in law, when it held that more than two candidates contested the election and their scores were not included in the petition.
(iii) ERROR IN LAW
The election tribunal erred in law, when it failed to make a finding on section 149(d) of the Evidence Act as to the presumption of non-production of the Independent National Electoral Commission declaration of result of election for Governorship Form EC8E(1) by the 1st respondent/applicant and 2nd – 327th respondents.
(iv) ERROR IN LAW
The election tribunal erred in law and misconstrued the clear provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, when it held that scores allotted to the political parties is the same as scores of candidates in the election.
(v) ERROR IN LAW
The election tribunal erred in law when it struck out the petition relying on a self-contradictory affidavit of the 1st respondent/applicant.
(vi) ERROR IN LAW
The election tribunal erred in law, when it held that the non-specification of the candidates other than that of the petitioner and the 1st respondent vitiates the election petition.
(vii) ERROR IN LAW
The election tribunal erred in law, when it held that paragraph 4(6) of the First Schedule to the Electoral Act, 2002, was obligatory and mandatory and therefore, the election tribunal lacked jurisdiction to entertain the petition.
(viii) ERROR IN LAW
The election tribunal erred in law, in not considering whether there were sufficient materials placed before it by the appellant, upon which they would have exercised their discretion in his favour.
(ix) ERROR IN LAW
The election tribunal erred in law, in striking out the petition on the ground that it has no jurisdiction to entertain it.”
In compliance with the practice direction No.2 of 2003 briefs of argument were filed and exchanged. The appellant in his brief of argument formulated three issues for the determination of the appeal.
The 1st respondent adopted the issues as formulated by the appellant.
The 2nd – 327th respondents in their joint brief formulated two issues for the determination of the appeal.
Before stating the issues formulated by the parties, I must first resolve the objection raised in regards to the validity of the 1st respondent’s brief of argument.
On the 5th of July, 2003, a brief was filed which was headed 1st respondent’s brief of argument. It was signed by the B. M. Wifa, SAN on behalf of Chief Kehinde Sofola, SAN. However, on the 7th July, 2003, another 1st respondent’s brief of argument was filed. This time, the brief was signed by Kehinde Sofola, SAN himself. At the hearing of the appeal, learned Senior Counsel for the 1st respondent Sofola, SAN applied to withdraw the brief filed on 5th July, 2003, because he did not know anything about it. In his own words:
“I disclaim the brief. I know nothing about the brief. It was filed without my knowledge. I hereby withdraw it.”
Chief Ahamba learned Senior Counsel for the appellant, had no objection to the 1st brief being withdrawn, he however objected to the adoption of the second brief because it was filed out of time and the 1st respondent did not ask for extension of time to file the said brief. In support of his objection he referred to Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 at 300. Kehinde Sofola on the other hand, referred to Order 1 rule 7 of the Court of Appeal Rules, 2002 and submitted that the brief was filed within time.
Practice Direction No.2 of 2003 provides:
“For the purpose of appeals coming to the Court of Appeal under S. 137 of the Electoral Act, 2002, No.4, this Practice Direction shall be strictly observed by all parties:
5. Within a period of 5 days after the service of the record of proceedings, the appellant shall file in the court and serve all the respondents a written brief being a succinct statement of his arguments in the appeal.
6. ………………….
7. Respondents shall file in the court and served on the appellant his own brief within 3 days after service in accordance with paragraph 5 above.”
It could be seen that the respondent has only three days within which to serve the respondent’s brief from the date he was served with the appellant’s brief. The appellant’s brief was served on the 1st respondent on 2nd July, 2003. The 1st respondent’s brief in question was filed on 7th July, 2003. Ostensibly, it appears that the said brief was filed out of time. However, that is where Order 1 rule 7 of the Court of Appeal Rules comes into play. It provides:
“The Registries of the court shall, subject to the directions of the President, be opened to the public everyday in the year, from eight to one o’clock in the afternoon clock in the afternoon, except on Saturdays and Sundays or on any day declared a public holiday, under any written law.” (Italics mine).
2nd July, 2003, was a Wednesday, three days from that day fell on a Saturday, a day which the registries of the court are closed. On Sunday, the registries are also closed. By virtue of the Interpretation Act, a period reckoned by days for the doing of any act shall be deemed to be exclusive of the day in which the act is done and if the last day of the period is a Saturday or Sunday, or a public holiday, the period shall include the next following day. The available day for the filing of the brief is therefore Monday 7th July, 2003. I therefore, hold that the brief was filed within time. The objection is therefore overruled.
I now return to the issues formulated by the parties. As I have earlier stated, the appellant formulated three issues for determination, which were adopted by the 1st respondent. The issues are:
“1. In the determination of the issue whether the petition has complied with the requirements of the Electoral Act, 2002, can the tribunal look at any process other than the petition?
2. Whether the petition as constituted was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002.
3. Whether the electoral tribunal has any discretion under paragraph 4(6) of the First Schedule to the Electoral Act, 2002, in considering the application of paragraph 4(1)(c) of the said Schedule.”
In their brief, the 2nd – 327th respondents identified two issues for determination:
“1. Whether proceedings in election tribunal are synonymous with civil proceedings.
2. Whether the tribunal was right in striking out the petition for non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002.”
Taking into consideration the grounds of appeal, I am of the opinion that the issues formulated by the appellant are more apt to the determination of the appeal. At the hearing of the appeal, counsel to the parties adopted their respective briefs of argument and also proffered oral submissions to amplify the various points raised in the brief issue No.1 is that in the determination of the issue whether the petition has complied with the requirements of the Electoral Act, 2002, can the tribunal look at any process other than the petition? It was submitted on behalf of the appellant that in considering, whether a petition was fundamentally defective for failing to comply with the relevant law, it is the petition only that has to be examined vis-a-vis the applicable law. It was also submitted that the court could only look at the statement of claim to determine the challenge and no affidavit evidence or the defence has any relevance.
In support of this submission the following cases were referred to: Adeyemi v. Opeyori (1976) 9-10 SC 31; (1976) NSCC (Vol. 10) 455; Ajaka Izenkwe v. Onyemuche Nnadozie (1952) 14 WACA 361 and Wenlock v. Moloney & Ors. (1965) 2 All ER 871. It was then submitted that the approach of the tribunal was against the principles ventilated in the cases cited above. It was further submitted that the tribunal was in error because it took into consideration irrelevant facts in determining the matter and that the tribunal solely relied on the affidavit evidence in coming to its conclusion.
It was also submitted that the tribunal was wrong in driving away the appellant without trial and that the case was decided on affidavit evidence without discovery, oral evidence or cross examination and that the approach of the tribunal in striking out the petition based on preliminary objection was condemned by the House of Lords in the case of Tilling & Anor. v. Whiteman (1979) 1 All ER 737.
It was submitted that paragraph 4(1)(c) of the First Schedule to the Electoral Act has to be read within the con of the whole paragraph 4, because paragraph 4(1)(c) did not state that what has to be pleaded was the scores of all the candidates and that paragraph 4 simply restated the rules of pleading i.e. parties are bound by their pleadings and failure to plead material facts is fatal to the case. It was finally submitted that the petition before the tribunal was adequate in terms of pleading material facts for the purpose of sustaining the complaint of the appellant and ought not to have been struck out. We were then urged to set aside the decision of the tribunal.
It was submitted in the 1st respondent’s brief that the issues in the preliminary objection went to the root of the case. It was based on the failure of the petitioner to comply with the statutory provisions in the Electoral Act, 2002. It was then submitted that compliance with statutory provisions in election petition cases is a fundamental pre-condition a breach of which is incurable and failure to comply with the provisions of the Act is fatal. It was further submitted that it was settled law that election cases were special in nature and character. They are “sui generis”.
In support of this submission, the following cases were referred to: Professor Ayua v. Rev. Father Moses Adasu & Ors. (1984) 1 SCNLR 192, (1992) 3 NWLR (Pt.231) 598; Chief Collins Obih v. Chief Samuel Mbakwe & Ors. (1984) 1 SC 325; Abah v. Robert (1999) 4 NWLR (Pt.597) 126 and Samamo v. Anka (2000) NWLR (Pt. 640) 283. It was stated that references were made to the above cases to show that election cases are neither civil nor criminal cases. The case of Nwoke v. Ebeogu (1999) 6 NWLR (Pt. 606) 247, was held that a preliminary objection could successfully be taken as long as evidence has not been taken in election petition cases. The case of Mudiaga-Erhueh v. INEC (1999) 12 NWLR (Pt. 630) 288 and Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334 were also referred to. It was then submitted that the cases relied on by the appellant were most inappropriate and did not apply either because they relate to civil cases and do not apply to election petition cases, which are in law sui generis or they are against the appellant.
On behalf of 2nd – 327th respondents, it was submitted that a petition forms the main complaint before a tribunal, but in considering whether such a petition is fundamentally defective for failing to comply with the Electoral Act, the tribunal cannot shut its eyes to other pieces of evidence which will assist the tribunal in the just determination of the application before it. It was then submitted that election petitions are “sui generis” and as such they are considered to be distinct from civil proceedings.
To support this submission the following cases are referred to: Chief Collins Obih v. Mbakwe (1984) 1SCNLR 192, (1984) NSCC (Vol. 15) 127; Chief Nelson Gbe v. Esewe (1988) 4 NWLR (Pt. 89) 435; Ezeobi v. Nzeka (1989) 1 NWLR (Pt. 98) 478 and Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323. It was then submitted that the argument that the tribunal could only examine the petition in considering whether a petition like a pleading is fundamentally defective was erroneous. Moreso, when the petitioner filed a counter-affidavit and copiously relied on the averments contained therein in his argument. It was contended that the appellant cannot at this stage raise the issue of relying on affidavit evidence because the issue was never raised at the tribunal, we were urged to discountenance all the arguments on the issue. It was then subrrtitted that the tribunal was entitled to look at its records in arriving at as just decision as was held in Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630 and Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170. It was finally submitted that the tribunal was entitled to evaluate the affidavit evidence before the tribunal.
An election petition is heard by an appropriate election tribunal established by the Constitution. In respect of governorship election, see S. 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 which provides:
“There shall be established in each State of the Federation one or more election tribunals to be known as Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
The composition of the tribunal is as set out in the Sixth Schedule to the 1999 Constitution. The law and procedure governing the tribunals is the Electoral Act, 2002. The jurisdiction of an election tribunal to deal with election petitions is of a special nature.
The proceedings in election petitions are regarded as sui generis. Election petition is not a civil proceedings. See Oyekan v. Akinjide (1965) NMLR 381, where the Supreme Court held that the proceedings on an election petition are special proceedings for which special provisions were made in the Constitution. Election petitions are also distinct from the ordinary civil proceedings: See Collins Obih v. Mbakwe, (supra) where Bello, JSC (as he then was) stated at page 330:
“From the provisions of the Constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings within the con of section 267 of the Constitution.”
An election petition is neither a civil proceeding nor a criminal proceeding. It is such that in certain circumstances any slight default in complying with the rules, which could be cured or waived in normal civil proceedings, could be fatal to the petition. Since an election petition is neither a civil proceeding nor a criminal proceeding, an election tribunal is strictly governed and is bound to adhere to the procedure laid down in the Act.
The ordinary civil procedure rules do not apply to the tribunals. In the circumstance, my answer to the first issue is that the tribunal was right when it relied on the affidavit evidence to determine the preliminary objection.
I now come to the second issue i.e. whether the petition as constituted was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. It was submitted in the appellant’s brief that the tribunal was in serious error when it proceeded to adopt its findings, deductions and conclusion to hold that the appellant’s petition did not satisfy the provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act. It was submitted that the consideration of the tribunal that votes scored by unnamed candidates of political parties should be pleaded and failure to plead the names of political parties with their scores contravened paragraph 4(1)(c) was wrong.
It was further submitted that the tribunal was in error to hold that “political parties” are synonymous to “candidates” and that the tribunal made wrong assumptions, which led to the unwarranted and wrong conclusion that the petition did not include the scores of the candidates in the petition. It was contended that the duty of the court is to interpret laws as they are and not as they ought to be: Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR (Pt. 781) 227. It was argued that the tribunal ought not to have gone outside the petition in order to determine whether the petition was in compliance with paragraph 4(1)(c). This court was then invited, by virtue of section 16 of the Court of Appeal Act, to examine whether the failure of the tribunal to make a finding on the applicability of S. 149(1) of the Evidence Act has occasioned a miscarriage of justice. We were urged to set aside the decision of the election tribunal on the grounds that the petition is in conformity with the provision of paragraph 4(1)(c).
The 1st respondent on the other hand, submitted that the general rule is that an appellate court will not allow a party to raise an issue not considered in the trial court. It was stated that the stands taken by the petitioner at the trial and in this appeal are contradictory and inconsistent. The case of Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 was referred to where the Supreme Court held that a party should be consistent in proving it. It was further submitted that since the issue of the failure of the petitioner to comply with statutory provisions in the Electoral Act, 2002, has been established and admitted by the petitioner in his counter-affidavit and his counsel’s submission before the tribunal, the question or reference to section 149(d) of the Evidence Act does not appear to serve any useful purpose and that the Electoral Act does not empower the tribunal to act as suggested by the petitioner’s counsel.
It was also submitted on behalf of the 1st respondent that the courts have to ascertain the meaning of a statute before they can apply it, and that the courts are guided by certain principles known as rules of interpretation or construction. They assume, as matter of common sense, that the legislative (a) uses the right words to express its intention; (b) is reasonable and consistent; and (c) legislates with a practicable object in view. It was also submitted that the first aim is to arrive at an interpretation which the words of the statute could fairly bear and which yields a practicable result with due regard to the object of the statute; and the ultimate aim is to arrive at an interpretation which achieves harmony among the provisions of the statute as a whole, and which also produces consistency with relevant provisions, if any, in other statutes.
The learned Senior Counsel then dealt extensively with the canons of interpretation of statutes, supporting his submissions with the following authorities: Okumagba v. Egbe (1965) 1 All NLR 62; Nasr v. Buhari (1969) 1 All NLR 35 and Mabinuori v. Ogunloye (1970) 1 All NLR 17.
It was submitted that when the preliminary objection was filed and served together with the affidavit in support, the petitioner filed a counter-affidavit to it in which he did not deny paragraph 7 of the affidavit in support which stated that apart from the petitioner and the 1st respondent there were other candidates who took part in the election. The petitioner is therefore, deemed to have admitted paragraph 7 of the affidavit in support. The learned Senior Counsel concluded by submitting that the rules governing election petitions are contained in the Electoral Act, 2002, and the tribunals are governed by them and that there is a lot of difference from joinders of necessary parties and pleading facts to satisfy particular requirement under the Electoral Act. He submitted that the tribunal was right in striking out the petition and urged us to dismiss the appeal.
For the 2nd to 327th respondents, it was submitted paragraph 4(1)(c) of the First Schedule to the Electoral Act is mandatory and the provisions are clear and unambiguous and as such, this Court should give them their natural meaning. To buttress this submission, the following authorities were referred to: Doma v. Adamu (1999) 4 NWLR (Pt. 598) 311 and The Daily Times v. Amaizu (1999) 12 NWLR (Pt. 631) 439. It was also submitted that since the 2nd 327th respondents were not the applicants, it was not their duty to produce FORM E.C.8(E)(1) and the presumption under S. 149(d) of the Evidence Act on failure to produce evidence could not be raised against them. It was also stated that S. 149(d) could only become applicable where the party actually relied on the document and failed to produce the document.
The case of Bamgbose v. Jiaza (1991) 3 NWLR (Pt. 177) 64 was relied upon. It was also submitted that merely not producing evidence would not necessarily amount to withholding such. evidence as to raise the presumption under S. 149(d) of the Evidence Act. The court must be satisfied that the evidence has been withheld. The case of Awosile v. Sotunbo (1986) 3 NWLR (Pt. 29) 471, was cited in support of the submission.
It was then submitted that paragraph 4(1)(c) being mandatory, non-compliance with it does not leave the tribunal with any discretion: Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260 and Ezeobi v. Nzeka (1989) 1 NWLR (Pt. 98) 478 and that S. 136(3) of the Electoral Act, 2002 and paragraph 4(6) of the First Schedule to the Electoral Act did not create any discretion for non-compliance with paragraph 4(1)(c) and that no miscarriage of justice has occurred for this Court to apply its general powers under S. 16 of the Court of Appeal Act. We were urged to dismiss the appeal.
Taking into consideration the ruling of the tribunal and the submissions of all the counsel, the resolution of this appeal primarily revolves on the interpretation of section 133 of the Electoral Act and paragraph 4(1)(c) of the First Schedule to the Electoral Act.
Section 133 provides:
“133(1) An election petition may be presented by one or more of the following persons –
(a) a candidate at an election;
(b) a Political Party which participated at the election.
(2) The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person, who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
It is a cardinal rule of interpretation that where the words of a statute are clear and unambiguous those words shall be construed as to give effect to their natural or literal meaning. Also where a statute mentions specific things, those things not mentioned are not intended to be included. See: Okumagba v. Egbe (1965) 1 NMLR 62; Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 and Ogbuanyinya v. Okuda (1976) 6-9 SC 32.
The provisions of S. 133 are clear and unambiguous. Sub-section 1 of S. 133 prescribes who may present a petition. It is a candidate at the election or a political party, which participated at the election or both of them that, can present an election petition and no more. Sub-section 2 stipulates who could be made a respondent in an election petition. Those who could be joined, as respondents are the person whose election is complained of; an Electoral Officer; a Presiding Officer a Returning Officer or any other person who took part in the conduct of the election. By the clear provisions of sub-section 2 these are the only persons that can be made respondents in an election. To add any other person apart from the ones specified in the sub-section would tantamount to reading into the statute what is not there.
Paragraph 4 of the First Schedule to the Electoral Act prescribes what an election petition should contain. It provides:
“4(1) An election petition under this Act 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 petition is based and the relief sought by the petitioner.”
It is a well settled principle of construction of statutory provisions that a statute must be read and interpreted as a whole in order to get the correct meaning of any particular expression. When interpreting a particular section of a statute, the section should not be read in isolation, the whole statute should be considered because the section is part of the whole. See: Chime v. Ude (1996) 3 NWLR (Pt. 461) 379. Schedules, tables and forms are also useful in the interpretation of provisions in the body of a statute especially where there is ambiguity. However, they cannot override the plain words of the statute, because if there is any contradiction between schedules, tables and forms and the enacting clause, the enacting clause will prevail. See: F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652.
The main issue for the determination of the preliminary objection at the tribunal has been correctly identified by the tribunal. See page 268 of the record of proceedings where the tribunal stated:
“The main issue in contention in the preliminary objection raised by the 1st respondent/applicant is in respect of the non-compliance with the provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. That the petitioner’s petition did not contain the votes of each candidate and the person returned as the winner.”
Since the tribunal based its decision upon non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, it is imperative to determine the scope and effect of the said paragraph. The Supreme Court in the recent case of General Muhammadu Buhari and Anor. v. Alhaji Mohammed Dikko Yusuf and Anor. (2003) 14 NWLR (Pt. 841) 446, has considered the scope and effect of S. 133 Electoral Act, 2002 and paragraph 4(1)(c) and came to the following conclusion:
“It is manifest that section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under subsection (2) as identified in this judgment. As a matter of strict adherence parties can neither be respondents nor are they necessary parties. Paragraph 4(1)(a) and (c) and para. 45 of the First Schedule to the Act do not warrant any other interpretation being given to section 133(2). In respect of para. 4(1)(c), it is enough to supply the particulars in the body of the petition without joining the said candidates as parties to the petition. Such particulars shall be in respect of candidates, who were validly nominated and who upon that basis contested the election, not any other candidates upon whom votes were wasted. It is from such proper candidates’ particulars that an order under section 136(2) may be made based on the valid votes cast at the election.
However, if there is any doubt or controversy as to whether all the candidates necessary to be pleaded, this is better resolved upon admissible evidence at the trial of the petition at which stage the tribunal would decide the competency of the petition if that still remained an issue. This has nothing to do with joinder of parties.”
(Italics are mine)
Per Uwaifo, JSC at pages 23-24 of the leading judgment.
From the above decision, it could be seen that a petitioner is not obliged to make any candidate who lost an election a respondent other than the statutory respondents envisaged under subsection (2) and these are the person whose election is complained of, an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election. I will now look at the petition to determine whether or not it complied with paragraph 4(1)(c). The parties to the petition are Chief Sergeant Chidi Awuse who is the petitioner and Dr. Peter Odili the 1st respondent, the Independent National Electoral Commission the 2nd respondent, the Resident Electoral Commissioner, Rivers State, the 3rd respondent, the Returning Officer, Rivers State as the 4th respondent and the 5th – 327th respondents are returning officers in all the Local Government Area throughout the State. In paragraph 3 of the said petition it was stated:
“Your petitioner, states that the election was held on April 19, 2003, when the petitioner and Dr. Peter Odili, the 1st respondent were candidates; and on April 20th, 2003, the 4th respondent declared that the 1st respondent received 2,098,692 votes and the 1st respondent was declared to be duly elected.”
A critical look at the petition will reveal that the petitioner has stated the holding of the election, he stated that the election was held on 19th April, 2003. He has stated what he scored and what the 1st respondent scored.
He had also stated that the 1st respondent was returned as the winner of the election. It is therefore, my considered opinion that the petitioner has complied with S. 133(1) and (2) of the Electoral Act, 2002 and paragraph 4(1)(c) of the First Schedule to the Electoral Act. The petitioner is not obliged by virtue of S.133 of the Act to make any candidate who lost an election a party to the petition. The decision of the tribunal that the petition was incompetent because it failed to state the names and scores of the candidates, who contested but lost the election is wrong.
The petition has substantially complied with paragraph 4(1)(c), it is enough to supply the particulars in the body of the petition without joining the candidates who lost the election as parties to the petition.
Moreover, where there is any doubt or controversy as to whether all the candidates necessary to be pleaded under paragraph 4(1)(c) were pleaded, the Supreme Court held that:
” … this is better resolved upon admissible evidence at the trial of the petition at which stage the tribunal would decide the competency of the petition if that still remained an issue. This has nothing to do with joinder of parties.” See pages 23-24 of the leading judgment in Buhari v. Yusuf (supra).”
My answer to the second issue is therefore in the affirmative. The petition was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. This effectively disposes of the appeal. There is no need to consider the third issue. To do so will amount to an academic exercise.
In the circumstance, the appeal succeeds and is allowed by me. The ruling of the tribunal delivered on 11th June, 2003 is set aside. The petition is remitted back to the tribunal to be heard on merit. I make no order as to costs.
Other Citations: (2003)LCN/1463(CA)
