Democratic Peoples Party (DPP) & Anor V. Independent National Electoral Commission & Ors (2) (2008)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A
This is an appeal against the ruling of the Governorship and Legislative Houses. Election Tribunal established for Zamfara State in Election petition No. EPT/ZMS/GS/GOV/03/07. The ruling was delivered on 2nd July, 2007. On the 14th April, 2007 elections were held into the office of State Governors throughout Nigeria. In Zamfara State the 1st Petitioner/Appellant was sponsored by the 2nd Petitioner/Appellant, while the 3rd Respondent/Respondent sponsored the 4th Respondent/Respondent. The election was conducted by the 1st and 2nd Respondents/Respondents. At the end of the election, the 1st and 2nd Respondents declared the 4th Respondent as the winner with 415,454 votes against 73,652 votes scored by the 2nd Appellant. The 3rd Respondent was struck out in the course of the proceedings before the lower Tribunal.
The Appellants were dissatisfied with the result of the said election. In an election Petition dated 11th May, 2007 and filed on 14th May, 2007, the Appellants, as Petitioners, sought to challenge the result of the election. It is Election Petition No. EPT/ZMS/GS/GOV/03/07. The main ground for this petition is that the election was invalid by reason of corrupt practices, and/or non-compliance with the provisions of the Electoral Act, 2006. Upon this main ground the Petitioners/Appellants sought for these 2 key reliefs. They are:-
(1) That the election be declared invalid as a result of corrupt practices and other irregularities; and
(2) An order directing that a fresh election is conducted.
This petition also incorporated what appears to me to be another ground which was presented as a relief. It was set out as follows:- viz;
“That the election was a nullity, same having been conducted without a verified and authenticated Voters’ Register.”
Upon being served with the Petition, the 1st and 2nd Respondents entered a conditional appearance on 21st May, 2007, while the 4th and 5th Respondents entered their own conditional appearance in a memorandum dated 22nd May, 2007. After the conditional appearance, the 4th and 5th Respondents filed 2 separate notices of preliminary objection challenging the competence of the petition and the jurisdiction of the Tribunal to entertain same.
While these notices of objection and other motions were still pending and waiting to be determined, the 4th and 5th Respondents filed another 2 separate motions in substantially the same terms and seeking the same reliefs. The 2 motions were later consolidated and argued after the earlier motions of the 4th and 5th Respondents were withdrawn and struck out. The ruling in this appeal was delivered in respect of these 2 consolidated motions. The motions were brought pursuant to Section 147(3) of the Electoral Act, 2006, Paragraph 49(2) and (5) of the First Schedule to the Electoral Act 2006, and paragraph 6 of the Election Tribunals and Court Practice Direction of 2007. They are for the following reliefs; i.e.
(1) An order setting down the preliminary points of law raised in paragraphs 1(a) to (g) of the 4th respondent’s reply in this petition for hearing;
(2) An order striking out the 1st Petitioner and 3rd Respondent on record in this petition;
(3) An order striking out paragraph 4 to 10 and 13 to 15 of the petition; and
(4) An order striking out the petition in its entirety for being fatally and incurably defective, incompetent, null and void; as well as for such further or other reliefs as the Tribunal may deem fit to make in all the circumstances of the case.”
Like I observed earlier on, the motion filed on behalf of the 5th Respondent was on similar terms. The grounds for these applications are also the same and were made out from the respective replies of the 4th and 5th Respondents to the petition. They were set out as follows:-
(a) That this petition is frivolous, vague and discloses no reasonable cause of action against the 4th respondent in that: (i) it has failed to show how, if in any way, the alleged irregularities even in the unlikely event of being established, have affected the result of the election and (ii) does not show on the face of the petition that the alleged acts of corrupt practices and/or non-compliance were done either with the knowledge and consent of the 5th respondent, by himself personally or through his authorized agents.
(b) That the petition is fatally and incurably defective, incompetent, invalid, null and void by reason of the failure of the Petitioners to comply with the mandatory provisos of paragraph 2 of the First Schedule to the Electoral Act requiring the provision by the petitioners of security for costs as ordered by the Tribunal.
(c) The petition is fatally and incurably defective, incompetent, invalid, null and void by reason of the failure of the Petitioners to comply with the mandatory provisions of paragraph 4(1), (c) of the First Schedule to the Electoral Act requiring the petitioners to “state the holding of the election, the score of their candidates and the person returned as the winner of the election …” the hand-written reference to an invalid “Exhibit A” which was obviously attached after the petition was filed notwithstanding.
(d) The petition is fatally and incurably defective, incompetent, invalid, and null and void by reason of the failure of the petitioners to comply with the provisions of paragraph 4(4) of the First Schedule to the Electoral Act, 2006 which requires that the petitioners state at the foot of their petition an address for service and…”…its occupier.”
(e) That the 1st petitioner (Democratic Peoples Party (DPP) Zamfara State and the 3rd respondent (Returning Officers (Zamfara State Governorship election) on record are not juristic persons cognizable by law.
(f) That paragraphs 4 – 10 and 13 – 15 of the petition are allegations of misconduct against persons who are not joined by the petitioners as respondents and not alleged to be agents of the 5th respondents and therefore liable to be struck out.
(g) That, the tribunal lacks jurisdiction to entertain and/or determine the said petition for the above reasons and it should be struck out.”
The motions are each supported by an affidavit of 5 paragraphs deposed to by one Aminu Junaid, a legal practitioner in the legal team retained to conduct the defence of the 4th and 5th Respondents. Neither the Petitioners/Appellants not the 1st and 2nd Respondents/Respondents filed any counter-affidavits to the motions. There were also attached to the motions the written arguments of respective learned counsel, Mr. Robert Clarke SAN for the 4th Respondent and Mr. R.A. Oluyede for the 5th Respondent. The Petitioners/Respondents/Appellants filed a written reply dated 12th June, 2007, while both Mr. Clarke SAN and Oluyede filed respective replies on points of law each dated 15th June, 2007.
At the hearing of the consolidated applications on 21st June, 2007 respective learned counsel adopted and relied on their respective written addresses and thereafter made brief remarks and a few submissions in respect of same. In its ruling of 2nd July, 2007 and after reviewing the various submissions of respective learned counsel, the lower Tribunal discountenanced and held against some of the grounds of objection as set out in paragraphs (a) to (g) above. However, with respect to the most crucial objection it decided and held as follows at page 242 of the record thus:-
“From the foregoing, we see overwhelming merit in the motions ably moved before us and we allow them accordingly. We agree that the petition deserves to be struck out in limine and we so order.”
It is against this finding and order of the Tribunal that the Petitioners/Appellants filed this appeal vide a notice of appeal filed on 16th July, 2007 and containing 7 grounds of appeal. By an application dated and filed on 3rd December, 2007, the appellants were granted 7 days extension of time to file their appellants’ brief of argument. The appellants’ motion of 3/12107 was heard on 16/01/08. The appellants’ brief of argument was however filed on 21/01/08 while the 1st and 2nd Respondents and 3rd and 4th Respondents filed their respective Respondents’ briefs on 28/01/08.
The appellants’ brief formulated one issue for determination in this appeal from the 7 grounds of appeal. For reasons which may appear obvious later in this judgment, I intend to set out the briefs of the appellants and the 1st and 2nd Respondents in full. The full of the Appellants’ brief is as follows:-
1.0. INTRODUCTION
1.1. The 2nd Appellant was sponsored by the 1st Appellant to contest election to the Governorship of Zamfara State in the April 14, 2007 Elections.
1.2. The 1st Respondent who is responsible for conducting the elections returned the 5th Respondent as the winner of the election.
1.3. The 1st and 2nd Appellants being dissatisfied with the outcome of the election filed a petition challenging the legality of the Governorship election on the grounds that the election was invalid by reason of corrupt practices and/or non compliance with the provisions of the Electoral Act 2006.
1.4. The 4th and 5th Respondents filed a preliminary objection to the petition.
2.0. DECISION OF THE TRIBUNAL
2.1. The Tribunal heard the objections and proceeded to rule striking out the petition on the grounds that the pleadings of the petitioners disclose no cause of action to warrant evidence to be called and that there are no pleadings to sustain allegations of non compliance with the Electoral Act.
2.2. Not satisfied with the decision of the Tribunal, the Appellants appealed to this Court on 6 grounds.
3.0. ISSUES FOR DETERMINATION
3.1. We respectfully formulate one issue for determination as follows:
a) Whether indeed the Appellants petition disclose no cause of action to warrant it to be struck out.
4.0. LEGAL ARGUMENT
4.1. Election petitions are a special civil procedure for seeking redress in electoral matters.
Rule 4(1) of the Rules of procedure for election petitions in the 1st Schedule to the Electoral Act 2006 provides for the content of an election petition.
The contents relevant to this appeal are paragraph (1) (d) thereof which says an election petition shall:
(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.
4.2 One of the grounds for which an election could be challenged as provided under Section 145 (1) (b) of the Electoral Act 2006 is,
(b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act.
4.3 The pleadings of an election petition are therefore the grounds and particulars of the petition. That is where the cause of action could be discerned.
Thus, when an election petition is shown to be commenced under a ground recognized by the Electoral Act 2006 and the particulars disclose a prima facie case of breach of the law which warrants calling on the petitioner to adduce evidence in proof then the petition, we submit, must be heard on its merits.
It is at the conclusion of evidence that the Tribunal could reach a verdict and not even before the alleged evidence has been heard.
4.4 The question now is whether the petition filed by the Appellants at the lower court discloses a reasonable cause of action recognized by the Electoral Act 2006.
4.4.1 Pages 3 – 5 of the record of proceedings show the grounds of the Appellants’ petition as:
“That the election was invalid by reasons of corrupt practices and/or non compliance with the provisions of the Electoral Act, 2006”.
This ground is in line with Section 145(1) (b) of the Electoral Act 2006.
4.4.2 One of the particulars supplied is in paragraph 4 of the petition as follows:
“Lack of verified and authentic, voters register for Zamfara State as a whole as none was displayed in public for verification before the conduct of the elections. Where there was any at all, it lacked authenticity and credibility”.
4.4.3 The compilation of a verified and authentic voters register is a legal requirement of the Electoral Act 2006 for the conduct of elections. Conducting elections without a verified and authenticated voters register is not only a corrupt practice it is a violation or non compliance with the Electoral Act 2006.
Sections 10(5), 11(4), 20(1), 21 and 31(1) of the Electoral Act, 2006 makes the verification and authentication of voters register mandatory for the conduct of elections.
4.4.4 The petitioner attached statements of witnesses on oath who were ready to testify to the fact that there was no compliance with the requirement of Law for an authenticated and verified voters register in the 14/4/07 general elections in Zamfara State. These statements are those of Dr. Kabiru S. Chafe, Senator Lawal Shuaibu, Hassan A. Bungudu etc.
4.4.5 On the whole, the petition disclosed a ground of Law, provided the particulars and the evidence by which it would be proved. The Court did not allow this to be tested at a trial it proceeded to terminate the trial by striking out the petition for allegedly not disclosing a cause of Action at pre-hearing stage.
4.5 The petition also in paragraph 3 alleged corrupt practices by the Respondents in the conduct of the 14/4/07 elections in Zamfara State in line with Section 145(b) of the Electoral Act 2006.
The particulars of the corrupt practices were given in paragraphs 5 – 14 of the petition. Statements of witnesses on oath were attached to the petition as required by the practice direction.
4.6 The petitioners disclosed what they believe to be the impact of the non compliance with the Electoral Act 2006 in paragraph 15 of the Petition.
It was therefore strange for the lower court to hold that the petition disclosed no cause of action at all.
4.7 The petitioner now Appellant has shown in his particulars and statement of his witnesses on oath that there were corrupt practices in the April 14 2007 Governorship elections and that it was conducted without a verified and authentic voters register. These are acts of illegality that will vitiate the election if proved.
Once an act is illegal, there is no need to prove the impact of the alleged illegality before it could be set aside as ruled by the lower court.
4.8 It is not enough to just rule that paragraphs 4, 5, 8, 9 and 11 of the petitioners’ pleadings did nit disclose a cause of action.
The court must analyse each such paragraph and make a specific finding thereon before proceeding to strike it out. Without so doing, we submit there is no legal basis for striking out the said paragraphs.
5.1 CONCLUSION
The Appellant’s petition was well founded on a legal ground under the Electoral Act Section 1.45 (1)(b) the particulars thereto also disclosed facts of corrupt practices and conduct of Governorship election without a verified and authenticated voters register.
The statements on oath by the petitioner, now Appellants’ witnesses attached to the petition disclose assertive evidence of corrupt practices and conduct of lection without a verified and authenticated voter’s register, contrary to the Electoral Act 2006.
6.0 PRAYER
We respectfully urge the Court of Appeal to:
a) Set aside the ruling of the court below dated 2 July 2007 striking out the Appellants petition.
b) Remit the petition back for trial on the merits, before another tribunal.
Dated this 18th day of January, 2007
(SGD)
Dr. A.A. Akume Esq
PP: H.L. Ali & Co.,
C/o Messrs T.O. Enejo & Co.,
Theresa Bowyer Road,
G.R.A., Zaria.”
The full of the 1st and 2nd Respondents’ brief of argument is as follows:-
INTRODUCTION
1.01 On the 14th of April, 2007 elections were held into the Office of State Governors throughout Nigeria, and in Zamfara State,
(a) the 1st Appellant sponsored the 2nd Appellant.
(b) the 3rd Respondent sponsored the 4th Respondent for the said election.
1.02 The 1st and 2nd Respondents conducted the said election as stipulated and required by both the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act,
1.03 At the end of the election, the 1st and 2nd Respondent declared the 4th Respondent as the winner of the said election with 415,454 votes as against the 2nd Appellants 73,652 votes.
1.04 Dissatisfied with the declaration, the 1st and 2nd Appellants, as Petitioners filed a Petition on the 14th of May, 2007 at the Lower Tribunal on only one Ground:
“That the election was invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act, 2006.”
1.05 They made the following the Respondents to the Petition.
1st – Independent National Electoral Commission
2nd – Resident Electoral Commissioner, Zamfara State
3rd – Returning Officers, Zamfara State Governorship Election
4th – All Nigeria Peoples Party
5th – Alhaji Mamuda Aliyu Shinkafi
1.06 The 3 prayers of the Petitioners/Appellants are:
(a) That the election was a nullity, same having been conducted without verified and authenticated Voters Register.
(b) That the election be declared invalid as a result of corrupt practices and other irregularities.
(c) An order directing that fresh election is conducted.
1.07 The 1st and 2nd Respondents entered a Conditional Memorandum of Appearance on the 21st of May, 2007.
1.08 The 4th Respondent entered a Conditional Memorandum of Appearance on the 22nd of May, 2007.
1.09 The 5th Respondent entered a Conditional Memorandum of Appearance on the 22nd of May, 2007.
1.10 Notices of Preliminary Objections were filed in the following Grounds:
(a) Non-compliance with paragraph 2 of the 1st Schedule to Electoral Act 2006.
(b) Non-compliance with paragraph 4 of the 1st Schedule to Electoral Act, 2006.
(c) Lack of jurisdiction.
1.11 Motion on Notice was also filed applying for:
(a) Striking out the name of the 3rd Respondent “Returning Officers”
(b) Striking out paragraphs 4, 6, 7, 9, 10, 11, 12, 13, 14, 15 and 16 of the Petition.
1.12 Written Address was filed in support and opposing of the Motion and Notice to strike out the Petition and Preliminary objection.
1.13 The applications were heard on the 21st of June, 2007.
DECISION OF THE LOWER TRIBUNAL AND APPELLANTS APPEAL
2.01 On the 2nd of July, 2007 in a considered Ruling the Lower Tribunal held:
(a) that the Petition is fatally and incurably defective.
(b) and struck out.
2.02 The Appellants filed a Notice of Appeal containing (6) 7 Grounds.
ISSUE FOR, DETERMINATION
3.01 The Appellants identified only one issue for determination, to wit:
Whether indeed the Appellants disclose no cause of action to warrant it to be struck out.
3.02 Considering the Motions filed, the judgment and Notice of Appeal, we consider the following issue were relevant:
‘Whether the Petition discloses any cause of action and sufficiently pleaded facts in support of the allegations therein’.
LEGAL ARGUMENT
4.01 The summary of the Appellants legal argument contained in paragraphs 4.1-4.8, pages 2-5 of their. Brief of Argument are that:
(a) the Petition disclosed a ground of law, provided particulars and evidence by which it would be proved.
(b) the Lower Tribunal did not make specific findings on each paragraph before striking it out.
4.02 The Lower Tribunal relied on the decision of KHALIL V. YAR’ADUA (2004) FWLR (PT 225) 111 among other authorities to strike out the 3rd Respondents” Returning Officers”. (See p.233 of the Records).
4.03 The Lower Tribunal struck out paragraphs 4, 5, 7, 8, 9, 10, 13 and 15 on the grounds that the persons whose actions are directly questioned by those paragraphs were not joined in the Petition, relying on BUHARI V. OBASANJO (2005) All FWLR 273. (See P.235 of the Records).
4.04 Finally, the lower Tribunal held that for an action to disclose reasonable cause, it must show and/or consist of facts inter alia:
(a) Giving rise to sue
(b) the wrongful act
(c) Consequent damage, involving a plea on S.146 (1) of the Electoral Act. (See pages 236-239 of the Records).
4.05 The Lower Tribunal was right in holding that the Petition not only failed to disclose sufficient facts but also show that hearing it was not worthwhile considering that the pleadings could not sustain any allegations of non-compliance.
CONCLUSION
5.01 Considering the petition as filed, the objections raised the judgment and reasons given, the appeal has no merit and it ought to be dismissed.
Dated 28th day of January, 2008
(SGD)
(YAHAYA MAHMOOD ESQ)
PP YAHAYA MAHMOOD & CO.
AREWA CHAMBERS
UBA BUILDING
SOLICITORS TO THE 1ST & 2ND RESPONDENTS
A1 AHMADU BELLO WAY
KADUNA.”
The brief of the 3rd and 4th Respondents was settled by learned counsel Mr. Emukpoeruo. After the introduction and statements on the facts leading this appeal, learned counsel Mr. Emukpoeruo went on to tackle the issues for determination in this appeal. In what I consider an attempt to put matters straight and in a proper perspective, learned counsel made some observations and remarks about the lone issue formulated by learned counsel to the appellants in the appellants’ brief of argument vis-a-vis the 7 grounds of appeal. Further to the observations and remarks, learned counsel also sought for an order for some of the grounds of appeal to be struck out.
According to Mr. Emukpoeruo, of counsel, the appellants formulated a single issue for determination which did not cover all the grounds of appeal. He added that the sole issue did not cover ground 1 and there being no issue covering ground 1, it is deemed to have been abandoned. With respect to grounds 2 and 4, learned counsel pointed out that ground 2 calls into question, the interpretation given to Section 146(1) of the Electoral Act 2006 at the pre-trial stage of the proceedings before evidence was called, while ground 4 questions the finding of the Tribunal that paragraph 15 of the petition was a mere opinion which was evidence that ought not to be contained in a pleading. Learned counsel submitted that each of grounds 1, 21 and 4 cannot by any stretch of imagination be covered by the sole issue formulated by the appellants for the determination of this appeal. Upon this submission, Mr. Emukpoeruo prayed that ground’s 1, 2 and 4 in the notice of appeal herein be struck out for having been abandoned. He relied on the case of IBRAHIM V. MOHAMMED (2003) 2 SC 127 where Kalgo, JSC held at P.140 that:
“… any ground of appeal on which no issue was raised in a party’s brief and is not related to any issue is deemed to be abandoned by the party concerned … I therefore find that the Court of Appeal was right in striking out the ground of appeal No.4 before it.”
After this prayer learned counsel Mr. Emukpoeruo suggested that from the remaining grounds 3, 5 and 6 the issue for the determination of this appeal should be:-
“Whether a reasonable cause of action founded on the ground of non-compliance with the provisions of the Electoral Act 2006 was disclosed in the petition.”
Learned counsel, upon his suggestion and formulation of this issue, went on to seemingly adopt it as his formulation of the issue for determination in this appeal.
During the hearing of this appeal on 21st February, 2008, learned counsel to the 3rd and 4th Respondents referred to his notice of preliminary objection dated and filed on 28th January, 2008, before he adopted his brief of argument. He drew the attention of the court to the arguments on the preliminary objection which he, for purposes of convenience and in line with current practice, incorporated in his brief of argument.
The notice of objection sought to challenge the competence of grounds 1 and 7 in the notice of appeal.
According to learned counsel the so-called ground 7 is plainly not a ground of appeal at all. It is merely the expression of the appellants desire to file further grounds of appeal upon the receipt of the records of appeal, while ground 1 is a ground complaining that the Tribunal ignored submissions of the appellant’s counsel. He added that the particulars which were supposed to explain this ground were new and unrelated grounds of complaint thereby making the particulars to bear no nexus with the ground. He relied and quoted very extensively from the cases of GLOBE FISHING IND. LTD and ORS. V. COKER (1990) 7 NWLR (Pt.162) 265 as per Akpata JSC at p.300 and ENGINEER NURA KHALIL V. ALHAJI UMARU MUSA YAR’ADUA (2003) 16 NWLR (Pt.847) 446 as per Mohammed JCA at pp. 477 – 479 and urged this Court to uphold the preliminary objection and strike out grounds 1 and 7.
Learned counsel to the appellants did not file any reply brief to answer this preliminary objection as well as the challenge to the competence of grounds 2 and 4. It was for convenience that I chose to reproduce the full of the brief of argument of the appellant’s hereinabove. I think it is now ripe for me to refer to it for whatever it is worth. In the absence of any response to the issues raised in the preliminary objection, the appellants do not appear to have any answer to the prayer for grounds 1, 2, 4 and 7 of their grounds of appeal to be struck out. Despite this clear shortcoming on the part of the learned counsel to the appellants, I took pains to look at these grounds 1, 2, 4 and 7 very closely. After this close look I tried to relate the grounds with the ruling of the lower Tribunal of 2nd July, 2007 as well as the lone issue for determination formulated by the appellants.
In my considered view it does not take too long to see that the issue formulated by the appellants certainly could not have evolved out grounds 1, 2 or 4. Clearly the lone issue formulated by counsel on behalf of the appellants for the determination of this appeal did not flow from grounds 1, 2, 4 and 7. According to the Supreme Court in OSINUPEBI V. SAIBU (1982) 7 SC 114 at P.110 issues for determination not based on the grounds of appeal filed must be deemed as abandoned and the court must discountenance and strike out all such abandoned grounds of appeal. See also GLOBE FISHING (supra) and YAR’ADUA (supra). I therefore hereby strike out grounds 1, 2 and 4 of the grounds of appeal herein. Ground 7 says thus:-
“Further additional grounds of appeal shall be filed upon receipt of record of proceedings from the Tribunal if necessary.”
This ground without any doubt is bereft of any substance. For any ground of appeal to be competent it must be capable of giving rise, either by itself alone or along with other ground or grounds of appeal, to an issue or issues for determination in an appeal. No 1 issue is capable of being distilled from this ground 7. I therefore agree with learned counsel Mr. Emukpoeruo, that ground 7 is incompetent and ought to be struck out. I hereby also strike out ground 7.
Now turning to the Appellants’ brief of argument. I wish to repeat my self here. It is for maximum effect that I reproduce the full of that brief herein. It is provided in Order 1.7 rule 1 of the Court of Appeal Rules 2007 that the filing of briefs applies to all appeals coming to this Court from any court or tribunal. Order 1.7 r.2 goes further to define or describe a brief as a succinct statement of a party’s argument in an appeal before this Court, while Order 1.7 r.3(2) goes further to provide for some of the key features and contents of a brief of argument. To me these provisions merely appear to set or lay down a minimum standard. An appeal can only be prosecuted through a brief of argument to the near total exclusion of oral advocacy. It must therefore be emphasized that it is not just any legal essay that qualifies as a brief of argument. No. A brief must have some basic attributes and characteristics. There are a number of decisions of this Court and the Supreme Court that have explained both the attributes of a good brief and its place in the administration of justice before our appellate courts.
In ADEHI V. ATEGA and ORS (1995) 5 NWLR (Pt.398) 656 per Uwais, JSC (as he then was) at 665, the Supreme Court remarked that the sole purpose of a brief is to present a party’s case on appeal in a summary form but with accuracy and lucidity as not only to give the court in advance a deep insight into the party’s case but also to convince it on the justice of his case. Further to this, the Supreme Court went on to define a brief, as a condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the appeal, together with reasons and authorities which can sustain them. In UMEANIA V. EMODI (1996) 2 NWLR (Pt.430) 348, per Tobi, JCA (as he then was) at P.360 parag B, this Court referred to a brief as a well articulated, precise, succinct and adequate statement of either the appellants’ or respondents’ case by way of argument. The Court added further that a brief must also be a co-ordinated argument with all lucidity and clarity of purpose, reflecting the case of its owner. The arguments in it must tell a flowing story of the case of the party.
I have done all it takes to see if I can accommodate the briefs of the appellants and the 1st and 2nd Respondents. The more I tried to do that the more inadequacies I discover in the said briefs. The appellants’ brief did not raise or advance any serious argument of law or fact pertaining to or connected with the sole issue for determination in this appeal. For example at paragraph 4.3 learned counsels wrote as follows:-
4.3 “The pleadings of an election petition is therefore the grounds and particulars of the petition. That is where the cause of action I could, be discerned.
Thus, when an election petition is shown to be commenced under a ground recognized by the Electoral Act 2006 and the particulars disclose a prima facie case of breach of the law which warrants calling on the petitioner to adduce evidence in proof then the petition, we submit, must be heard on its merits.
It is at the conclusion of evidence that the Tribunal could reach a verdict and not even before the alleged evidence has been heard.”
To me, this statement in paragraph 4.3 appears to be the fulcrum and backbone of the complaint of the appellants against the ruling of the lower Tribunal. This situation, on appeal can be compared to the written response of the petitioners/Appellants to the written arguments of the 4th and 5th Respondents/Respondents before the lower Tribunal. For example, at P.186 of the record of appeal, the appellants, as respondents, argued thus:-
“There is no mandatory requirement to attach documents by virtue of the Practice Direction (sic) all the Practice Direction requires is a list of documents OR copies of the said documents. The use of the word OR in Section 1(1) (c) is clearly intended to operate disjunctively and in the alternative. This gives the petitioner a choice between providing a list of every document OR the copies of the documents. We refer to ONAKOYAV. F.R.N. (2002) 9 NWLR (Pt.779) 595 at 647 parags F – G.”
With respect to payment for security for costs as an issue before the lower Tribunal, the appellants argued written address before the lower Tribunal that:-
“We submit that the argument of Respondents that petitioners must apply for the security for cost before filing his (sic) petition or after is spurious and not by any stretch of the intendment of the Act. The use of the word may must be construed as only directory and not mandatory. We refer to OGUNYOMBO V. OKOYA (2002) 16NWLR (Pt.793) 224 at 250 – 251.” See page 187 of record of appeal.
Though not quite elegant, these would qualify as submissions or arguments which a court must review and evaluate and also decide to uphold or reject. It is this type of approach to advocacy that is contemplated by appellate courts as the essential features or attributes of a good brief of argument. According to the Supreme Court in ATEGA (supra) if a brief fails to communicate or contain these essentials or ends up a mere bundle of petti fogging or confusing trash, the hallowed purpose of brief writing would not have been achieved. No decided cases of either this Court or the Supreme Court were cited in support of whatever arguments, if there were any at all, I do not think or believe that there were any serious arguments or submissions at all, in the entire brief of the appellants. I find this to be totally strange and out of place. If decided cases could be cited in the lower Tribunal, I see no reason why the same approach should not be extended to this Court. It is the requirements of the rules of this Court that briefs of arguments should contain expositions of facts and the law and such expositions must be supported by decided cases or statutory provisions. The brief of the 1st and 2nd Respondents did fare any better than that of the appellants. The two are merely 2 sides of the same coin. Apart from lack of legal depth there is not much to commend in the seriousness in the 2 briefs. In the instant case both the briefs of the appellants and that of the 1st and 2nd Respondents have not satisfied these essentials. To say it without mincing words; they are bad briefs, to the extent that they have failed to satisfy the minimum requirements both under the rules of this Court and judicial decisions. They have failed to achieve the objective for which briefs were introduced into our appellate adjudicatory process.
In EMODI (supra) Ubaezonu, JCA had this to say about a brief and attitude of counsel thereto at page 368 parags F – H.
The learned Justice said:-
“Brief writing in this Court and in the Supreme Court has been in vogue for quite sometime now. One would have thought that by now the art and methodology of writing brief should be as clear as crystal in counsels minded. But many years after brief writing has been in existence, what do we still have from some counsel? A brief which is hardly a brief: a brief in name only: a brief which gives no comfort to the appellate Justices … a bad brief is irksome to the judge while a good brief is pleasant to him and makes his work easy …”
See also GAAMSTAC ENG. LTD. V. F.C.D.A. (1988) 4 NWLR (Pt.88) 296 as per Achike JCA (as he then was) at P.305, where this court went to the extreme and held that where a brief has been filed without compliance with the Rules of the Court the effect is that no brief has been filed on behalf of the appellant as such neither the appellant nor his counsel can be heard in oral argument. This decision is devastating in its effect. It is equally incapacitating. I take solace in the fact that it is not strictly fully applicable to the circumstances of the instant appeal. In GAAMSTAC (supra), learned counsel to the Plaintiff/Respondent, at the hearing of the appeal raised and argued a preliminary objection to the competence of the appeal for failure of the brief to comply with the requirements of a proper brief. However, in the instant appeal none of the Respondents argued against the competence of the appeal itself. Rather, it was the competence of some of the grounds of appeal that I was challenged by learned counsel to the 4th and 5th Respondents.
Granted that the sole issue for determination of this appeal as formulated by learned counsel to the appellants is well founded from some of the grounds of appeal and also in exercise of my discretion, I would proceed to consider the brief of the appellants for what it is worth along side the very lucid and cogent arguments and submissions of learned counsel to the 4th and 5th Respondents. I consider this approach to be desirable and preferable because none of the Respondents alluded to the great and obvious shortcomings of the appellants and 1st and 2nd Respondents’ brief. This approach was approved and adopted by the Supreme Court in the case of OBIORA V. OSELE (1989) 1 NWLR (Pt.97) 279 where it was held, as per Oputa, JSC at P.300 thus:-
“A bad, faulty and/or inelegant Brief will surely attract some adverse comments from the courts but it will be stretching the matter too far to regard such defective brief as no Brief. A faulty Brief is a Brief which is faulty. One cannot close one’s eyes to the fact of its existence.”
Based on this decision all the reaction that a bad brief should generate and attract is mere adverse comment from the court, but the court should make the best that it can out of it. See GBAFE V. GBAFE & ORS. (1996) 6 NWLR (Pt.455) 417 where the supreme Court referred to its earlier decision in OBIORA and held that a bad brief need not in all cases be struck out.
I do not intend to do any further characterization or systematic review of whatever was written in the appellants’ brief and/or that of the 1st and 2nd Respondents because I have earlier on in this judgment reproduced the full of the briefs. They should, in this judgment, be read word for word and allowed to speak for themselves.
In his arguments on the sole issue formulated by the appellants, learned counsel to the 4th and 5th Respondents, Mr. Emukpoeruo, explained that grounds 3, 5 and 6 are confined to the decision of the lower Tribunal that in the absence of pleaded facts to show how any alleged non-compliance with the provisions of the Electoral Act 2006 affected the outcome of the election that ground would not have disclosed a reasonable cause of action since evidence cannot be received or admitted on unpleaded facts. While referring to pages 240 – 241 of the record of appeal, learned counsel pointed out that with respect to paragraphs 6, 7, 10, 13, 14 and 15 of the petition, the lower court held that in the absence of pleadings connecting the 14th Respondent to the alleged acts of corrupt practices and improprieties, the allegations are unsustainable against him. Upon this, learned counsel argued that there is no extent ground of appeal challenging the aforesaid decision of the lower Tribunal and for the purposes of this appeal that decision is deemed as correct and should not be disturbed. He added further that there is no ground of appeal whatsoever challenging the decision of the lower Tribunal striking out the ground of the petition which alleged corrupt practices at the election. Learned counsel went on to refer to and quote very extensively from the decisions in OSHODI V. EYIFUNMI (2000) 7 SC (Pt.11) 115 at 166 and C.C. & IND. S.P.R. LTD V. OGUN STATE WATER CORP. (2002) 4 SC 86 at 98 as well as DABO V. ABDULLAHI (2005) 2 SC (Pt.1) 75 at 91 which cases support the position that when an issue is not placed before an appellate court, it has no business whatsoever to deal with it.
In an attempt to bring the extant grounds of appeal into a clearer focus, learned counsel suggested that the proper issue for determination in this appeal is;
“Whether the mere allegation in the petition that the election was conducted without verified or authenticated voters register without more was enough to invalidate an election under S.146 (1) of the Electoral Act 2006?
Because so much of what learned counsel argued and made submissions on from pages 11 to 18 of the brief pertained to the role and position of pleadings in civil litigation. Added to this, learned counsel Mr. Emukpoeruo had earlier on raised an issue out of grounds 3, 5 and 6 of the grounds of appeal as the extant and relevant grounds of appeal. He conceded to this issue thus:-
“Whether a reasonable cause of action founded on the ground of non-compliance with the provisions of the Electoral Act 2001 was disclosed in the petition.”
I would prefer to stick to the issue for determination formulated on behalf of the appellants. I therefore do not consider the issues formulated by Mr. Emukpoeruo as appropriate in the circumstance.
A very cardinal point in the ruling of the lower Tribunal that gave rise to this appeal is the emphasis that each party in a matter must plead all material facts on which he meant to rely at the trial; otherwise he is not entitled to give any evidence of them at the trial. A further emphasis was made on the principle that no averment must be omitted which is essential to success. Those facts must be alleged which must, not may, amount to a cause of action. The reason why the lower Tribunal made the above emphasis and decided as it did was because the appellants totally failed to plead or assert in the petition any fact from which the Tribunal could determine whether the alleged non-compliance substantially affected the outcome of the election.
In defence of this crucial finding of the lower Tribunal, learned Counsel Mr. Emukpoeruo relied on a number of judicial decisions and characteristically quoted extensively from especially the case of JAMES BAWA MAGAJI V. ISIAH BALAT and ORS. (2094) 8 NWLR (Pt.876) 449 as per Salami, JCA at 470-473. Other cases referred to by learned counsel include BRUCE V. ODHAMS PRESS LTD. (1936) 3 ALL E.R. 287 at 294, PHILLIPS V. PHILIPPS (1878) 4 QBD 127 at 133 and TATE IND. PLC. V. DEVCOM MERCHANT BANK LTD. (2004) 17 NWLR (Pt.901) 182 as well as ALHAJI YUSUF V. CHIEF OBASANJO & ORS. 18 NSQR 477 at 527. In further support of the decision of the lower Tribunal learned counsel also explained that the applicable law in this case is Section 146(1) of the Electoral Act 2006 which requires not just an assertion and proof of non-compliance with the Electoral Act but also further requires an assertion and proof of the facts that show how the alleged non-compliance affected the outcome of the election.
In an attempt to capture the full essence of 5.146(1) of the Electoral Act 2006, learned counsel referred to the case of KINGIBE V. ISA MAINA & ORS. (2004) FWLR (Pt.191 1555 at 1588 where it was held that:-
“…whether the complaint is on irregularities, unlawful votes or non-compliance; it must be tied to the effect of such irregularity or non-compliance on the result of the election. The law is that once the Petitioner is unable to tie the irregularities, malpractices or unlawful votes to its effect on the result of the election, the petition is bound to fail.”
Though the decision in KINGIBE (supra) may not be directly applicable to the facts and circumstances of this case, because there was no full trial in the instant case, the principle of law that Pleading must be relevant and must also involve all material facts remain sacrosanct.
Also, in the opinion of learned counsel Mr. Emukpoeruo, paragraph 15 of the petition which the appellants sought to rely on as the assertion of how the non-compliance affected the outcome of the election was nothing more than the mere expression of a vague opinion. According to learned counsel, it still remained bereft of facts as to the figures or the votes attracted or omitted by the alleged non-compliance as such the pleading was no more than a speculation without any substance. In answer to paragraph 4.4.2 to 4.4.4 of the appellants’ brief, learned counsel to the 4th and 5th Respondents, posed 3 questions thus:-
(a) What were the votes affected by the alleged lack of verified and authentic voters register;
(b) Was any voter disenfranchised as a result of non-verification or non-authentication if the register of voters? And
(c) If so, how many voters?
In the opinion of learned counsel, in answer to the above questions, these are material facts on which the petition was completely silent. He also added that these are the facts from which the Tribunal could determine whether the alleged noncompliance affected the election in a substantial way. Still questioning the quality of the pleadings in the petition of the appellants, learned counsel Mr. Emukpoeruo, while referring to paragraph 4.5 if the appellants’ brief, argued that there was no ground of appeal covering the argument dealing with the issue of corrupt practices. He was quick to explain and argue further that there was no averment which linked the 4th Respondent directly with any of the alleged corrupt practices.
In conclusion, learned counsel Mr. Emukpoeruo, very strongly maintained that the petition of the appellants failed to disclose a reasonable cause of action because it omitted to plead essential facts and as such the petition remains unsustainable. Upon all these, he urged this Court to dismiss the appeal.
I have carefully read the record of appeal and the respective briefs of the parties as well as some of the decided cases referred to in the briefs. Before I go any further I wish to observe that the complaint of the appellants herein is against the ruling of the lower court striking out their petition No. EPT/ZMS/GS/GOV/3/07. The fact that led to the petition being struck out was because of apparent inadequacy of pleadings and also because of the relationship of pleadings and evidence to be led at the trial of an action.
While referring to the case of OJO V. ESOHE (1999) 5 NWLR (Pt.603) 444, this court in the case of AWUSE V. ODILI (2005) 16 NWLR (Pt.952) 416 at 504F held that pleadings serve as the life-wire of a claim but without proof it serves no effectual purpose. The court added further that the primary function of pleadings is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases as well as being the foundation upon which the court will be called to adjudicate between them.
Also in ODILI (supra) this Court observed that the two most significant aspects of a claim are pleadings and the evidence in proof thereof. It then held that where evidence is not aligned with pleadings, it would serve no useful purpose to the claimant and the ultimate resultant effect would give rise to the Pleading being abandoned on the one hand while also expunging the unsupported evidence on the other hand which cannot stand without a foundational base. It is trite that in the absence of any evidence given in respect of an averment in a pleading, such averment will be deemed abandoned.
For the purpose of determining the validity or otherwise of elections under the Electoral Act 2006, the Practice Direction requires petitions to be filed along with the written statements of the witnesses on oath (depositions). The whole trial is mainly predicated on the evidence in the depositions and such documentary evidence as may be relevant and admissible in the circumstance of the case. See Practice Direction for Election Petitions 2007 paragraphs 4(1), 4(2) and 4(3). There is therefore a direct relationship between the pleadings and the witnesses’ statements. In determining the reasonableness of the cause of action in the appellants’ petition before it, the lower Tribunal, made an attempt in its ruling to consider the pleadings in juxtaposition to the various depositions accompanying and attached to the petition. This exercise can be seen in the ruling at pages 239, and 240, and 241 of the record of appeal. After this exercise of the assessment and evaluation of prospective, but mandatory, evidence to be permitted only at the trial, the lower Tribunal came to the conclusion at page 242 of the record of appeal that the extant paragraphs of the petition merely made wild allegations of acts of impropriety with only paragraph 15 making a lame attempt at pleading the outcome of the election. It then noted that this paragraph 15 had earlier on been struck out.
A cursory look at the extant grounds of appeal shows that, though there are complaints of errors in law, no particulars have been given of those errors or mis-directions on the evaluation of the extant witnesses’ statements. It is now trite that when a ground of appeal alleges error in law or misdirection on the part of the trial court, particulars of such errors must be given. However, even where the particulars of error in law or fact are properly set out, that will not ipso facto undermine the soundness of the judgment unless those particulars are convincingly established and further shown that the misdirection either has in fact prejudicially affected the appellant’s case or potentially has the effect on his case i.e. the misdirection must have occasioned a miscarriage of justice See ADENIJI V. DISU (1958) 3 FSC 104 and ANADI V. OKOLI (1977) 7 SC 57 at 63 both followed and applied on GAAMSTAC ENG. LTD (supra).
It is settled law that a judgment of a court of law is presumed to be valid until it is proved by the appellant to be wrong. For an appellant to prove that the judgment appealed against is wrong he must mount a vigourous and sustained attack on the quality of the decision or the various procedures employed leading to the judgment. This, the appellant, can only do by a proper use of relevant legal authorities which would profoundly convince the appellate court to set aside that judgment.
Learned counsel to the 4th and 5th Respondents has put in place a very vigourous and robust defence of the judgment of the lower Tribunal. An appeal to this Court is by way of a re-hearing pursuant to Order 6 r. 2(1) of the Court of Appeal Rules 2007. The re-hearing contemplated under this rule does not entail retrying the action and taking fresh evidence. It only amounts to a re-hearing on the record and the duty of the appellate court at this stage is limited to evaluation of the evidence and drawing inferences from primary facts. The Court of Appeal like any other appellate court will not interfere with or disturb the findings of a trial court except in situations when same is perverse. I have considered the ruling of the lower Tribunal and I am fully satisfied that the uncoordinated and feeble attack on it by the appellants has not elicited enough grounds upon which I would want to interfere with it.
In view of all the foregoing, I am fully satisfied that this appeal lacks merit. Being devoid of any merit it is hereby dismissed. I order for N40, 000.00 costs against the Appellants in favour of the 4th and 5th Respondent.
Other Citations: (2008)LCN/3041(CA)
