Comrade Adams Aliyu Oshiomole V. Charles Ehigie Airhiavbere Maj, Gen (Rtd) & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C

On the 14th day of July 2012 gubernatorial elections were held in Edo State, The appellant was the candidate for the Action Congress of Nigeria, while the 1st respondent was the candidate for the Peoples Democratic Party, Five other Political Parties and their candidates participated of the elections, but they are of no relevance to the issues in this appeal. At the conclusion of the elections the 3rd respondent, the regulatory body charged with the conduct of elections in Nigeria declared the appellant the winner after he was adjudged to have scored 477,478 votes as against the 1st respondent who scored 144,235 votes. The 1st respondent was not satisfied with the declaration, and so he filed a petition challenging the election and return of the appellant as the Governor of Edo State of Nigeria.

The appellant (1st respondent of the trial tribunal) and the 3rd to 5th respondents raised preliminary objections to the hearing of the petition. The thrust of the objections were that;

(a) the tribunal lacks jurisdiction to hear the petition and grant the reliefs claimed;

(b) the petition disclosed no reasonable cause of action,

(c) the petition is academic, vague and hypothetical.

After hearing counsel, the tribunal delivered a considered Ruling on the 27th day of September 2012. The concluding paragraph of the Ruling reads:

“The two applications by the 1st and 3rd-5th respondents succeeds in part. Paragraphs 12 (iv), 13 (i) and (ii), 23, 24, 25 and 30 (i) and (2) are struck out from the petition. The petition is allowed to proceed to hearing on the merit with the remaining surviving paragraphs and the 4th and 5th respondents as parties to the petition.

Dissatisfied with the striking out of several paragraphs of his petition the petitioner/1st respondent lodged on appeal in the Benin Division of the Court of Appeal. That court in its judgment delivered on the 15th day of November, 2012 upset the judgment of the tribunal in these words:

“… it is hereby ordered that paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(i) and 30(2) of the petition be and are hereby restored… “I hereby order that the petition be remitted back to the lower tribunal to be heard by another panel to be constituted by the Acting President of this court, Appeal allowed in part. No order as to costs.”

This appeal is against that judgment. Briefs of argument were duly filed and exchanged by counsel.

In the appellants brief filed on the 23rd of November 2012 three issues were formulated for determination of this appeal. They are;

1. Considering the pleadings of the 1st respondent (as Petitioner) particularly the sole ground of the petition, the vague facts pleaded thereon and the reliefs thereunder whether the lower court was not in grave error in upturning the judgment/ruling of the trial election tribunal by restoring the paragraphs of the petition struck out by the said tribunal, including the reliefs.
2. Whether the lower court was not altogether wrong in its making use of paragraph 9 of the 1st respondents reply to the appellants reply (to the 1st respondent’s petition) in restoring the struck out paragraphs of the petition by the trial tribunal.
3. Considering the clear provisions of section 31 (4) (5) and (6) of the Electoral Act 2010 (as amended), read together with the pleadings of the petitioner, whether the lower court did not fall into a serious error in holding that the trial election petition tribunal has jurisdiction to adjudicate on the purported issue of disqualification of the appellant.

Learned counsel for the 1st respondent also formulated three issues for consideration. They are:

1. Whether the lower court was right when it held that the Governorship Election Tribunal has jurisdiction to hear and determine the issue of qualification or non-qualification of the appellant to contest the Governorship Election held in Edo State on 14th July, 2012 as formulated in 1st Respondent’s petition.
2. Whether or not the lower court was right in restoring the paragraphs of the petition struck out by the trial tribunal.
3. Whether the lower court reference to paragraph 9 of the 1st respondents reply to the appellants reply to the petition occasioned perversion of justice.

Learned counsel for the 2nd respondent did not file a Brief.

Learned counsel for the 3rd to 5th respondents adopted the three issues formulated by learned counsel for the appellant.

At the hearing of the appeal on the 7th day of January, 2013 learned counsel for the appellant, Chief W. Olanipekun, SAN adopted the appellants brief filed on the 23rd of November, 2012 and the reply brief filed on the 6th of December 2012 and in amplification of his briefs, he observed that the trial tribunal was right to strike out some of paragraphs of the petition since the sole ground did not rhyme with the reliefs, further observing that the qualification of the appellant cannot be an issue since it was not made a ground. He urged this court to allow the appeal and restore the judgment of the trial tribunal.

Learned counsel for the 1st respondent, Mr. E.I, Akpofure SAN argued that the court should read the petition as a whole, and it would be clear that a ground on non-qualification can be discerned from the petition, Reliance was placed on Hope Democratic Party v. INEC 2009 8 NWLR pt. 1143 p.297.

He urged on this court to dismiss the appeal and affirm the judgment of the Court of Appeal.

Learned counsel for the 3rd to 5th respondents, Mr. T.O. Busari adopted the 3rd to 5th respondents brief filed on the 30th of November, 2012 and conceded the Appeal.

I have examined the three issues formulated by the appellant, which were adopted by the 3rd to 5th respondents and the three issues formulated by the 1st respondent. The appellants issue (1) and the 1st respondent’s issue (2) ask the same question. The appellant’s issue 2 and the 1st respondent’s issue 3 are similar, while the appellant’s issue 3 and the 1st respondent’s issue 1, ask the same question. I am of the view that the real grievance in this appeal is whether the Court of Appeal was right to restore paragraphs of the petition that were struck out by the Trial Tribunal and whether the alleged non-qualification of the appellant can be considered in the light of no ground on that issue.

Accordingly the appellant’s issues 1 and 3 and the 1st respondent’s issues 1 and 2 are issues that would easily resolve this appeal. The appellant’s issues 2 and the 1st respondent issue 3 are peripheral and so would not be considered. Two issues shall thus be considered.

ISSUES 1 & 2

Learned counsel for the appellant Chief W. Olanipekun, SAN observed that the reliefs claimed have no nexus with both the only ground of the Petition and the facts in support contending that Trial Tribunal was right to strike out paragraphs 12 (iv), 13(1), 13(II), 29, 24, 25, 30(1), 30(2) from the petition for being vague and incomprehensible, Reliance was placed on CPC v. INEC 2011 18 NWLR pt.1279 p.493 Concluding he observed that the decision of the Court of Appeal is perverse. He urged this court to allow the appeal, set aside the decision of the Court of Appeal and restore the decision of the trial Election Tribunal.

Learned counsel for the 1st respondent observed that the 1st respondent challenged the return of the appellant on two main grounds namely:

1. Non-qualification of the appellant to Contest the election.
2. Corrupt practices and non-compliance with provisions of the Electoral Act 2010 as amended.

He argued that on a global reading of 1st respondent’s petition in line with the decision of this Honourable Court in Hope Democratic Party the ground on non-qualification of the appellant to contest the election is disclosed.

He submitted that the trial tribunal was wrong to strike out paragraphs from the petition. He urged this court to dismiss the appeal.

Learned counsel for the 3rd to 5th respondent’s Mr. T. Busari conceded the appeal.

The issues for consideration are:

1. Whether or not the lower court was right in restoring the paragraphs of the petition struck out by the trial tribunal.
2. Whether the trial Election Petition Tribunal has jurisdiction to adjudicate on purported issue of disqualification or non-qualification of the appellant.

Both issues shall be taken together.

The sole ground of the petition reads:

“The Petitioners say that the grounds of this Petition are that the purported election for the office of the Governor of Edo State which took place on the 14th day of July, 2012 was invalid by reason of corrupt practices and non- compliance with the provisions of the Electoral Act 2010 ( as Amended). And the two reliefs read:

1. That it be determined that the 1st petitioner is entitled to be returned by the 3rd and 5th respondents as having been duly elected as the Governor of Edo State by reason of having scored the highest number of lawful votes cast at the Governorship Election held on the 14th day of July, 2012.
2. In the alternative that it be determined that the election of the 1st respondent was invalid by reason that he was not qualified to run for the office of Governor of Edo State having not met the mandatory statutory requisite qualifications to contest in the Election and other non-compliance with the provisions of the Electoral Act 2010 (as Amended).

The trial tribunal struck out paragraph 12 (iv) 13 (i) and (ii), 23, 24, 25, 30 (i) and 30 (2).

In support of the sole ground, there is a thirty paragraph pleading which includes two reliefs.

The well laid down position of the law is that parties are bound by their pleadings. That is to say if pleadings are to be of any use parties must be held bound by them. See

Adekoya & 6 Ors. V. Adesina & 4 Ors 2010 12 SC (Pt.11) p.1

Ojiogu v. Ojiogu & Anor 2010 3-5 SC (Pt.11) p.1

Akpan v. Bob & 4 Ors 2010 4-7 SC (pt.11) p.57

Baliol Nig Ltd v. Navcon Nig. Ltd. 2010 5-7 SC (pt.11) p.1

Paragraph 12 (iv) reads:

“The 1st respondent who purportedly returned as the winner of the said election was not qualified to contest for the said election for the office of the Governor of Edo State.

Paragraph 13(i)

“Further to paragraph 12, your petitioners State that when the 3rd respondent wanted to revise and update the various Voter Registers used in the 2011 General Elections for Presidential, National Assembly and State House of Assembly Elections in 2011 in Edo State in order to register those who subsequently attained the voting age of 18 years and above and for other valid statutory reasons, the 1st and 2nd respondents and their supporters vehemently and violently protested and the 3rd and 4th respondents were consequently constrained to postpone and suspend the said revision process until after the said Election of the 14th day of July, 2012 in Edo State.

Paragraph 13 (ii)

Your Petitioners aver that the chairman of the 3rd respondent Prof. Attahiru M. Jega, OFR in an address he delivered at the Stake-Holders Meeting on Edo CVR and Governorship Elections Conference Room, Abuja on May 18th 2012 formally announced the postponement of the said review of the said voters register exercise. The Petitioners shall find and rely on the said address at the trial of this petition.

Paragraph 23

Your petitioners aver that any Voter Register that was used for the July 14th 2012 Governorship Election in Edo State that does not tally with the Voters Registers used for the 2011 General Election is null and void and all votes cast with the said void Register are liable to be voided.

Paragraph 24

Your Petitioner aver that the 1st respondent is not qualified to contest the said Governorship Election in Edo State having not met the minimum qualification to contest for the said office of Governor of Edo State as provided for in the 2010 Electoral Act (as Amended)

Paragraph 25

Your petitioners further aver that there is no nexus between the 1st respondent and the academic qualifications he presented as his qualifications. The petitioners shall find and rely on Certified True Copies of these qualification of the trial of this petition especially as depicted in Form CF.001 submitted to the 3rd respondent in 2007 and 2012 by the 1st respondent,

Paragraph 30 (1) and 30 (2) are the reliefs they read:

30. WHEREFORE Your Petitioner pray as follows:
31. That it be determined that the 1st Petitioner is entitled to be returned by the 3rd and 5th respondents as having been duly elected as the Governor of Edo State by reason of having scored the highest number of lawful votes cast at the Governorship Election held on the 14th day of July, 2012.
32. IN THE ALTERNATIVE, THAT IT BE DETERMINED

that the Election of the 1st respondent was invalid by reason that he was not qualified to run for the office of Governor of Edo State having not met the mandatory statutory requisite qualifications to contest in the Election and other non-compliance with the provisions of the Electoral Act 2010 (as Amended).

Now, a careful reading of these paragraphs of the petition respondent above reveals that paragraph 12 (iv), 24 and 25 relate to the qualification or non qualification of the appellant. These are facts of variance with the sole ground.

It should be clear after examining paragraphs 12 (iv), 24 and 25 that there is no nexus whatsoever with the sole ground. The Court of Appeal was wrong to restore the said paragraphs in the absence of a ground to support or sustain them. The trial tribunal was right to strike them out.

Section 138 (1) of the Electoral Act States that:

“An election may be questioned on any of the following grounds: that is to say –

(a) that a person whose election is questioned was at the time of the election, not qualified to contest the election,

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) that the respondent was not duly elected by majority of lawful votes cast of the election,

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

A petitioner who relies on the non-qualification of his opponent to nullify the election must make the issue of non-qualification a ground and support the ground by specific pleadings and particulars. See judgment of this court in PDP v. Saror & Ors SC.381/2011 and Suswan v. Ors SC.381/2011 and SC383/2011 where the qualification of Suswan was made a ground. In the absence of a ground on non-qualification the court would have no jurisdiction to consider any averment that has to do with the non-qualification of the appellant.

Learned counsel for the 1st respondent placed reliance on HDP v. INEC 2009 8 NWLR pt.1143 p.297 in support of his argument that the court should examine the pleading in detail and see if the issue of non-qualification is pleaded. He contended that if it is pleaded, the court can make it a ground and proceed to rule on it.

In HDP v. INEC supra the appellant was one of the duly registered political parties that participated in the April, 2007 Presidential Elections. The appellant was not satisfied with the outcome of the election and so it filed an election petition. It alleged that there was non-compliance with the Electoral Act and that the election was marred by corrupt practices. It then made appropriate prayers. There was NO GROUND in this petition. This court had this to say:

“… the 23 paragraph petition contains numerous grounds for questioning the election. Although there is no identifiable paragraph of the petition with the grounds specifically set out therein, a global reading of the petition shows clearly that there are grounds for questioning the election…”

What the above is saying is that if there is no GROUND in a petition the court should examine the petition/pleadings to see if there are grounds for questioning the election. The long laid down position of the law is that a Party should be consistent in stating his case and consistent in proving it. See Ajide v. Kelani 1985 3 NWLR pt. 12 p.251. That is the importance of pleading. A Party must confine himself to his pleadings. Pleaded facts must have nexus with the Ground/s. There is no nexus with the sole Ground and the averments on non-qualification of the appellant. The petition is thus irredeemably defective and cannot be considered on the issue of non-qualification.

Where there are no grounds in a petition as was the case in HDP v. INEC (supra) I can understand a judge undertaking a global reading of the petition to find a ground or grounds that question the election, but I cannot understand a judge adopting the same procedure in a case, such as this where the petitioner expressly States the ground on which he is questioning the election it would amount to making a case for the petitioner to go on a voyage in search of grounds to question the petition when the petitioner has stated the ground he relies on.

The attitude of the Court of Appeal restoring the paragraphs struck out by the trial tribunal amounts to a clear case of the Court of Appeal making a case for petitioner.

The trial tribunal was right to strike out paragraphs 12 (iv), 24, 25, they being clearly at variance with the sole ground. Furthermore paragraphs 13 (1), 13(II) and 23 are vague and were also quite rightly struck out by the trial tribunal. The surviving paragraphs of the petition, now extant can support the main ground of the petition together with paragraph 30 (1) which I hereby order to be restored.

In one breath, learned counsel for the 1st respondent said in his brief that the 1st respondent challenged the return of the appellant on two main grounds namely:

1. Non qualification of the appellant, and
2. Corrupt practices.

And yet in the next breath he asks this court to follow the reasoning in HDP v. INEC (Supra). The reasoning in HDP v. INEC (supra) can only be followed where there are no grounds in the petition, but where the ground the petitioner relies on is clearly Stated, HDP v. INEC (supra) would not be followed.

It is clear to my mind that the issue of non-qualification of the appellant is not properly before the court, and this is due to the blunder of counsel who prepared the petition. The standards expected are for counsel in such a situation to advise his client accordingly and not waste judicial time by coming all the way to this court to see if he has a chance. It must be elementary that where a petitioner relies on a ground to question the petition, it would amount to substantial injustice to the adverse party for the court to go looking for other grounds to question the petition. At all times the court is to ensure that parties are on a level playing field.

On the State of the petition, the Petitioner’s case is that the election was invalid by reason of corrupt practices and not that the 1st respondent/appellant was not qualified to contest the election. The petitioner is bound by his case as pleaded.

Consequently the tribunal has no jurisdiction to hear and determine the qualification or non-qualification of the appellant since there is no ground from which such an issue can be formulated. A consideration of the non- qualification of the appellant would amount to going outside the pleadings and that would be wrong,

This appeal is allowed in part. The judgment of the Court of Appeal is hereby set aside. The Ruling and the orders of the tribunal are restored except for paragraph 30 (1) of the petition which shall remain part of the petition.

No order on costs.

APPEAL NO: SC.475/2012

Appeal No.SC.475/2012 is an offshoot of Appeal No. SC.473/2012. The parties in both appeals are the same and it arose from the same petition. That is to say the same facts as in SC.473/12.

It is my view that since the hearing of the petition is still to be concluded on the basis of the subsisting paragraphs in the petition there would be no need to comment on SC.475/2012.

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SC.473/2012