Dim Chukwuemeka Odumegwu Ojukwu V. Alhaji Umaru Musa Yar’adua (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C

This is an appeal against the decision of the Court of Appeal dated 3rd September 2007 wherein the petition was struck out. The petition itself was dated and presented on the 22nd May 2007. The grounds of the petition without their particulars are:

GROUND 1

The election in which the 1st and 2nd Respondents were declared winners was not conducted in compliance with the 1999 Constitution and the Electoral Act 2006.

GROUND 2

The election did not meet the minimal requirement of Electoral democracy and the law and the Electoral Act 2006.

GROUND 3

Rudimentary requirements of fairness and equal treatment provided by the Constitution and the Electoral Act were not extended to the Petitioner and to potential voters in Anambra, Imo, Abia, Enngu and Ebonyi States.

GROUND 4

The 1st and 2nd Respondents are not qualified to contest for election to the office of President and Vice President respectively because having been employed by the people of Katsina and Bayelsa States as their Chief Public Servants or Chief Executives they did not contrary to Section 137(g) of the 1999 Constitution resign or withdraw from their offices as executive governors at all prior to the said Presidential Election.

In paragraph 10 of the petition, the Petitioner further averred that the 3rd, 4th and 5th Respondents jointly and wrongfully cleared the 1st and 2nd Respondents for the said election to the offices of President, Vice President in Nigeria.

And in paragraph 11 of the Petition, the petitioner seeks the following reliefs:

1. A DECLARATION that by reason of the arbitrary failure of the 3rd Respondent to display copies of Voters List, publish Supplementary Voters’ Register and in the manner and form commanded by the Electoral Act 2006 the said Presidential Election is null and void for non-compliance with the minimal requirements of due process sine qua non and condition precedent for the conduct of democratic election prescribed by law.
2. A DECLARATION that failure to conduct the said election at all in any place (no matter how remote or few the number of voters) is inimical to the concept and basis of equality under the law and violates the rights of the affected voters (guaranteed by the Constitution) that they be not discriminated against.
3. A DECLARATION that by the arbitrary manner the said election was conducted without regard to due process of the law in all or any part of the country, or at all, amounts to nullifying the franchise and sovereignty of the people of Nigeria as a whole.
4. A DECLARATION that the manner and form of the conduct of the said election was a usurpation of the franchise and sovereignty of the people.
5. A DECLARATION that the 1st and 2nd Respondents were not qualified for election to the office of President and Vice President respectively or at all.
6. AN ORDER nullifying and invalidating the return of Musa Yar’Adua and Goodluck Jonathan, the 1st and 2nd Respondents herein as President and Vice President elect respectively.
7. AN ORDER nullifying the said election and commanding the 3rd Defendant to conduct another election for the office of President of Nigeria in the manner and form prescribed by law but without the 4th Respondent as its Chairman.
8. AN ORDER of injunction commanding the 4th Respondent to cease and desist from running the affairs of the 3rd Respondent.
9. A DECLARATION that the declaration of the 1st and 2nd Respondents as winners of the said election is invalid, unconstitutional null and void.

In keeping with the requirements of the Practice Directions the petition was accompanied by a written Statement on Oath of one Dr. Paul Dike.

By a motion dated 1st August 2007 and filed on the 3rd of August 2007, the 1st and 2nd Respondents also prayed the Court below for an order dismissing and/or striking out the petition on the grounds inter alia:

(i) . That the petition is defective and in clear breach of the express provisions of the Electoral Act 2006.

(ii) That some of the petitioner’s prayers do not flow from the petition.

(iii) That the petition is not properly constituted as persons or institutions who are proper necessary or desirable parties and whose presence are required for a just determination of the petition have not been made parties.

Also by a Notice of Preliminary Objection dated and filed on the 3rd August 2007 the 3rd and 4th Respondents prayed the Court of an order dismissing the petition. The grounds for the objection are stated to be that:

(1) The Petitioner has not disclosed any reasonable cause of action against the Respondents, the petition having failed woefully to disclose any constitutional disqualification against the 1st and 2nd Respondents who have not been shown to be disqualified to contest election into the office of President and Vice President respectively.

(2) The petition has not disclosed any reasonable cause of action against the Respondents as the grounds 1, 2 and 3 of the petition and the particulars there under as constituted have not shown that the election was not conducted substantially in accordance with the principles of this Act or that the noncompliance affected substantially the result of the election as envisaged under the provisions of Section 145(1) of the Electoral Act 2006.

(3) The petition is a gross abuse of the process of the Court.

(4) The Honourable Court lacks the jurisdiction and or vires to entertain the petition as constituted.

Written addresses were submitted for and against the two applications. And with the consent of the parties both applications were consolidated and heard together.

By its ruling on the 3rd September 2007 both applications were sustained and the petition struck out. As I said earlier, this appeal is against that ruling. The parties have through their counsel filed and exchanged their briefs of argument. The Appellant’s Brief of Argument was prepared by James C. Ezike and same was filed on the 5/11/07. He also prepared the Appellant’s Reply Brief to the 3rd and 4th Respondents’ Brief of Argument and it was dated and filed on the 18/12/07. Mr. James Ezike filed yet another Appellant’s Reply Brief to the 1st and 2nd Respondents’ Brief of Argument and it was filed on the 17/1/08. The 1st and 2nd Respondents’ Brief of Argument was settled by Chief Wole Olanipekun, SAN and same was filed on the 17/12/07. The joint brief of the 3rd and 4th Respondent was settled by Kanu G. Agabi, SAN and it was filed on the 28/11/07. J.K. Gadzama, SAN prepared the 5th Respondent’s Brief of Argument. This was filed on the 13/5/08.

In the Appellant’s Brief of Argument Mr. Ejike submitted four issues for determination. Chief Wole Olanipekun, SAN submitted three issues for determination in the 1st and 2nd Respondents Brief of Argument. On behalf of the 3rd and 4th Respondents Kanu G. Agabi, SAN proposed five issues for determination. While Chief Gadzama, SAN submitted only a single issue for determination in the 5th Respondent’s Brief.

After a careful examination of the issues for determination formulated by the parties, I am of the view that the four issues identified by the Appellant will very well and effectually determine the appeal. The Issues are:

1. Whether the Court of Appeal was right to hold that grounds 2 and 3 of the petition do not conform with or relate any of the 4 grounds set out in Section 145(1) of the Electoral Act 2006 2. Whether the Court of Appeal was right to rely on Section 146 of the Electoral Act 2006 to strike out ground 1 of the petition after it had earlier held the said ground to be competent And
2. Whether having held that ground 4 of the petition was competent, the Court of Appeal was right to consider its merit and struck it out
3. Whether the approach adopted by the Court of Appeal in reaching its decision to strike out the petition has occasioned a miscarriage of justice

On the 2nd of February 2009 when this appeal was heard learned counsel for the parties in addition to adopting the arguments in their briefs also made some oral submissions. The substance of the arguments for the parties is as follows.

On the 1st issue for determination Mr. Ezike referred to the averments in grounds 2 and 3 of the petition and their particulars, and the provisions of Section 145(1) of the Electoral Act 2006 and submitted that the two grounds embody sufficient averments complaining about the violation of provisions of the Constitution and Sections 47 and 48 of the Electoral Act 2006. It was his submission that a ground of a petition which alleges that there was a return of a candidate when there was no election in some regions or places is a ground within the meaning of Section 145(1) of the Electoral Act. Learned counsel further submitted that in view of the matters averred in the two grounds, they conform with Section 145(1)(b) of the Electoral Act.

With respect to the 2nd issue for determination, learned counsel referred to the finding by the lower Court at page 249 of the record to the effect that grounds 1 and 4 of the petition conform with Section 145(1)(b) and 145(1)(a) of the Electoral Act respectively it was wrong for it to strike out the petition at that stage for the Petitioner’s failure to plead and prove that the non-compliance affected the result of the election, pursuant to the provisions of Section 146 of the Act. Counsel argued that it was not yet ripe for the Appellant to prove or establish under Section 146 of the Electoral Act that the alleged non-compliance substantially affected the result, contending that it is at the trial of the petition brought pursuant to Section 145(1)(b) for non-compliance with the provisions of the Act, that the Court or Tribunal may under Section 146 decide not to invalidate the election if it finds that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not substantially affect the result of the election. On this issue the submission is that the Court of Appeal was clearly wrong to rely on Section 146 of the Act to strike out the petition. For the 3rd issue learned counsel for the Appellant submitted that the Court of Appeal having found that ground 4 of the petition was in conformity with Section 145(1)(a) of the Electoral Act coupled with the fact that none of the Respondents raised the issue of the distinction between public officers and elected officers, it was wrong for the Court to suo motu raise and determine the issue at that stage of the proceedings. Having raised the issue suo motu the Court had a duty to invite the views of the parties, especially the Appellant before its decision on it, counsel argued. He relied on NWOKORO v. ONUMA (1990) 3 NWLR (Part 136) 22 at 33; ADEGOKE v ADIBI (1992) 5 NWLR (Part 242) 410; JOWHOMU v EDOK-ETER MANDILAS LTD (1986) 5 NWLR (Part 39) 1; ALAO v ASHIRU (1973) 11 SC 23; KUTI v BALOGUN (1978) 1 SC 53 at 60.

On the 4th issue, counsel argued that it cannot be addressed at the preliminary stage. Learned counsel referred to the case of COOKEY v FOMBO (2005) 15 NWLR (Part 947) 182 which the 3rd and 4th Respondents cited at the Court below and submitted that the mere fact that the case is weak was no ground for striking it out. Learned counsel noted that the Court below merely adopted the two biased issues formulated by the 3rd and 4th Respondents without considering the petitioner’s submission and argued that the prejudice in the decision was a fiat accompli – thus terminating the petition without hearing the petitioner and in clear breach of the rules of natural justice. In support of his argument counsel cited BARCLAYS BANK v CENTRAL BANK OF NIGERIA (1976) 1 ALL NLR 409; NATIONAL BANK v SHOYOYE (1977) 5 SC 181 at 194; N.D.I.C. v C.B.N. (2002) NWLR (Part 766) 272 at 296; L.P.D.C. v CHIEF GANI FAWEHINMI (1985) 7 SC (Part 1) 178 at 262-263 and KOTOYE v C.B.N. (1989) 1 NWLR (Part 98) 419 at 448.

The substance of the address of Senior Counsel for the 1st and 2nd Respondents is as follows. With respect to the Appellants 4th issue, learned Senior Counsel argued that by virtue of the provisions of Sections 145(1) 9(a)-(d), 147(3) paragraphs 9(5) and 49 of the 1st Schedule to the Electoral Act, 2006 the 1st – 4th Respondents were at liberty to raise the preliminary objections as to the competence of the petition and the Court below was right to strike out or dismiss the petition in limine. Reliance was placed on FELIX NWABOCHA v WOKOCHA GIFT & ANOR (1998) 12 NWLR (Part 579) 522. It was submitted that when a statute prescribes a particular mode of bringing a process, that method and no other must be adopted, and the petition having been filed in complete disregard of the provisions of the Electoral Act, 2006 is fundamentally and incurably defective and therefore that the Lower Court was right in the manner it proceeded to determine it in limine. Counsel relied, for these submissions, on MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341; MUDIAGA ERHUEH v. INEC (1999) 12 NWLR (Part 630) 288; RIMI v INEC (2002) 6 NWLR (Part 920) 59; NUHU SANI IBRAHIM v INEC & ORS (1999) 8 NWLR (Part 614) 352; MUHAMMADU BUHARI v ALHAJI MOHAMMED DIKKO YUSUF (2003) 4 NWLR (Part 842) 446.

On the 2nd issue formulated by the Appellant, learned Senior Counsel referred to grounds 2 and 3 of the petition and submitted that the said grounds do not conform or relate to any of the grounds set out in Section 145(1)(a)-(d) of the Electoral Act and are therefore incompetent and were liable to be struck out. Reliance was placed on A.N.P.P. v INEC (2004) 7 N.W.L.R. (Part 871) 31. It was argued that both grounds 2 and 3 without their particulars are alien and totally strange to the 4 grounds in Section 145(1) (a)-(d) of the Electoral Act 2006. It was contended that the two grounds were therefore incompetent and rightly struck out. Breach of Constitution, the law or unstated part of the Electoral Act 2006 per se is not a competent ground for an election petition, learned Senior Counsel submitted. In support of this submission OBASANJO v YUSUF (2004) 9 N.W.L.R. (part 877) 144 and BUHARI v OBASANJO (supra) were cited.

With respect to the issue of whether the Court of Appeal was right to rely on Section 146(1) of the Electoral Act 2006, to strike out the petition learned Senior Counsel submitted that by virtue of the provisions of Section 146(1) of the Electoral Act and Section 137(g) of the Constitution the court below was right to strike out grounds 1 and 4 of the Petition. It was submitted that even if grounds 1 and 4 fall within the grounds under section 145(1) of the Electoral Act, they do not disclose any reasonable cause of action and were therefore liable to be struck out and were rightly struck out. By virtue of the provisions of Sections 145(1) and 146(1) and paragraph 4(1)(d) of the First Schedule to the Act, the petitioner had a duty to plead facts that the alleged corrupt practices and non-compliances, if proved, substantially affected the result of the election, learned senior counsel argued. It was argued that the petition was bereft of facts which the petitioner was enjoined by paragraph 4(1)( d) of the 1st was made out therein.

On the question of whether the Court of Appeal was right to strike out ground 4 of the Petition by placing reliance on Section 137(g) of the Constitution, it was the submission of the 1st and 2nd Respondents that the petition disclosed no reasonable cause of action against them, contending that the word “Election” is not synonymous with “Appointment” and/or “Employment”. It was further submitted that by the provisions of Sections 137(g) and 318 of the Constitution the 1st and 2nd Respondents were not persons in the public service of a State. Learned counsel referred to the definition of “employees in the public service of a State and the category of persons falling within the definition and submitted that by operation of the latin maxim “expression unius est exclusion alterius” the exclusion of elected officers like governors of a state show that they are not “employees in the public service of a State within the provision to make them liable to be disqualified under Section 137(g) of the Constitution. For this submission reliance was placed on P.D.P. v INEC (1999) 11 N.W.L.R. (Part 626) 200; BUHARI v DIKKO YUSUF (2003) 14 NWLR (Part 841) 446; OBUNYIYA v OKUDU (1979) 6-9 SC. 32; HALIBURY’S LAWS OF ENGLAND 4TH EDITION paragraph 876. In conclusion it was argued that the Court of Appeal rightly struck out ground 4 for disclosing no reasonable cause of action.

The submission of Kanu G. Agabi, (CON) SAN in the 3rd and 4th Respondents’ Brief is substantially to the same effect as the submissions for the 1st and 2nd Respondent. It was his contention that the petition did not disclose a reasonable cause of action and was therefore incompetent and which issue of incompetence was rightly and timeously raised by the Respondents and determined by the Court of Appeal. He relied on YUSUF v AKINDIPE (2000) 8 N.W.L.R. (Part 669) 376 at 387. With respect to the latin maxim ‘expression unius est exclusion alterius” counsel cited ELUWA v O.S.IE.C. (2006) 18 N.W.L.R. (Part 1012) 544 at 568 – 569. For the meaning of a reasonable cause of action counsel relied on LASISI FADARE & ORS v ATTORNEY-GENERAL OF OYO STATE (1982) 4 SC 1 at 7; ADIMORA v AJUFO (1988) 3 N.W.L.R. (Part 80) 1 at 17; OSHOBOJA v AMUDA (1992) 6 N.W.L.R. (Part 250) 690 at 702; DANTATA v MOHAMMED (2000) 5 SC 1 at 16- 17. He urged in conclusion that the appeal be dismissed.

The address of Chief Gadzama, S.A.N. is substantially to the same affect as those of the 1st – 4th Respondents. In addition he referred to provisions of the Election Tribunal and Court Practice Directions 2007, and paragraphs of the accompanying written statement on oath of the only witness and submitted that there cannot be a convincing evidence to sustain the petition. It was his further submission that the evidence was essentially hearsay and thus inadmissible evidence. He too urged that the appeal be dismissed.

In the Appellant’s Reply Brief to the Brief of the 1st and 2nd Respondents, the Appellant maintained that the petition contained the requisite allegations of fact which constituted the Respondents’ breaches of the Constitution and the Electoral Act 2006 and that same was therefore competent. It was wrong, he argued, for the Court of Appeal to invoked Section 146(1) of the Act to terminate the petition at the preliminary stage. It was his submission that Section l46(1) of the Act deals with weight of evidence and could only have been invoked after evidence at the trial. In support of this submission, the Appellant cited BUHARI v OBASANJO (2005) 13 N.W.L.R. (Part 941) 1 at 182 and AJUMALE v YADUAT (No.2) (1991) 5 SCNJ 178 at 187. It was his further submission that it is only after evidence has been taken that the Court can consider the applicability of Section 146 of the Electoral Act. Secondly, he submitted, the alleged insufficiency of facts is not a ground for striking out a petition. With respect to the 4th issue the Appellant reiterated his earlier argument that Governors and Deputy Governors though elected are persons employed in the “public service” of their states within the meaning of the 1999 Constitution.

In his Reply Brief to the brief of the 3rd and 4th Respondents the Appellant referred to the 2nd and 3rd grounds of the petition and argued that the said grounds read together with their particulars adequately complain about non-compliance with the provisions of the Electoral Act. It was his contention that reading the said two grounds without their particulars was mischievous and diversionary. With respect to the 4th Issue the Appellant referred to NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 4 SCNJ 97 at 119 and NWAOGUGU v THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS. All F.W.L.R. 115 at 116 to contend that the 1st and 2nd Respondents were “Public Servants” within the meaning of the Constitution.

Let me now deliberate on the various issues raised in this appeal starting with the Appellant’s 4th issue. The issue is whether the 1st – 4th Respondents were right to challenge the competence of the petition by way of the Preliminary objections before actual trial of the petition took place Afore tiori whether the Court below had the jurisdiction to entertain the applications at the stage it did to terminate the petition I am inclined to answer the above questions in the affirmative. First of all Section 147(3) of the Electoral Act 2006 provides:

Subject to the provision of subsection (2) of Section 149 of this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Part of this Act or the provisions of the first Schedule of this Act. ”

If a respondent in an election petition feels strongly that, on the face of it, the petition is patently unsustainable in the sense that it does not meet the requirements of the Electoral Act or the First Schedule to the Act or that it is lacking in materials to sustain it and therefore incompetent, he is at liberty to raise it and timeously too. And because it is an issue of jurisdiction which determination can be decisive of the whole litigation, the Election Tribunal or Court has the jurisdiction to entertain it. In this case the issue was raised by reference only to the petition and the documents filed along with it and without any reference to evidence. All the arguments were premised on the contents of the petition and the accompanying witness statement on oath.

I am further more persuaded by the contention of the 1st and 2nd Respondents that paragraph 49 of the First Schedule to the Electoral Act 2006 is another authority for the preliminary objections raised and determined at the Lower Court. Section 49 provides:

49(1) Non-compliance with any of the provisions of this Schedule or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such a manner and on such terms as the Tribunal or Court may deem fit and just.

(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect.

(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.

(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.

(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defeat on the face of the election petition is noticed.

It is clear from the above that the enabling authority for the two consolidated applications is the combined provisions of Section 147(3) of the Electoral Act and paragraph 49 of the first Schedule to the Electoral Act. The two applications were filed timeously, they having been filed on the 3rd of August 2007 before the Respondents/Applicants took the further steps of filing their Replies to the Petition on the same day. And each application or preliminary objection clearly stated the legal grounds on which it was based. And in keeping with the settled principle of law and the specific provisions of paragraph 49(5) of the First Schedule the Electoral Act the lower court had a duty to hear and determine the two applications before any further steps in the proceedings. For the various principles on preliminary objections and the court’s jurisdiction to entertain same. See JANG v INEC (2004) 12 N.W.L.R. (Part 886) 46 at 83; AKINBIU v MILITARY GOVERNOR, ONDO STATE (1990) 3 N.W.L.R. (Part 140) 525 at 531. In SHELL-BP PETROLEUM DEVELOPMENT CO. OF NIGERIA LTD & ORS v M.S. ONA SANYA (1976) 6SC 57 at 60 the Supreme Court stated:

“It is not disputed that this action is founded on contract. The Plaintiff must therefore give sufficient particulars in his pleading to enable the contract to be identified. This he has failed to do. On a proper construction of Order 32 Rule 19, in considering whether to strike out a pleading, the court must restrict itself to the facts in the particular pleading without having recourse to the facts in the opponent’s pleading. In our view, there can be no question that as the statement of claim in this case now stands, its discloses no cause of action and ought to have been struck out under Order 32 Rule 19 by the learned trial judge. ”

In this case the preliminary objections and their determination at the court below were restricted to the petition and the documents filed along with it. I hold in conclusion of this issue that the preliminary objections were properly raised and determined at the Court below.

This issue is therefore resolved against the Appellant.

The next issue is whether the Court of Appeal was right to hold that grounds 2 and 3 of the petition do not conform with or relate to any of the four grounds of the petition For a proper appreciation of the issue raised here, it is necessary to reproduce the said two grounds with their particulars.

GROUND 2

The said election did not meet the minimal requirement of Electoral democracy and the law and the Electoral Act. 2006.

PARTICULARS

(a) Voting was not done in secret. For the first time in the history of elections in Nigeria no pooling booths were provided by the 3rd Respondent and the voters voted in public and also cast their votes in public.

(b) Military men were used by the Commander-in-Chief who like the 1st Respondent, belong to the 4th and who was the campaigner-in-Chief of the 1st Respondent to intimidate the electorate throughout Nigeria.

(c) The agents of the petitioner and other agents of other opposing Presidential Candidates were not allowed to witness the collation or counting of votes or the compilation of results.

GROUND 3

Rudimentary requirements of fairness and equal treatment provided by the Constitution and the Electoral Act were not extended to the Petitioner and to potential voters in Anambra, Imo, Abia, Enugu and Ebonyi States.

PARTICULARS

(a) Voting did not take place in more than 98% of the polling stations in the said States at all and the right to vote, the initial allocation of franchise to the potential voters in those states was lost as a result of the arbitrary and discriminatory conduct of the 3rd Respondent.

(b) Presidential Election has nationwide constituency and failure to give voters their right of franchise nullifies the entire election because there is no divided sovereignty for the election of a President or at all.

(c) The 4th Respondent announced on air that elections for the office of President would in compliance with Sections 47 and 48 of the Act take place between 10 a.m. and 3 p.m. throughout Nigeria, but no voting took place in the said zone on the said date and zone except at night in less than 2% of the polling stations in the zone where the 5th Respondent’s governorship candidates voted at the night in their homes.

The Court below held that grounds 2 and 3 do not conform with or relate to any of the four grounds set out in Section 145(1) of the Electoral Act and were struck out. No reasons were given for this conclusion. The Appellant proffered sustained arguments to fault the finding of the court below. There is force in the arguments of Mr. Ezike of counsel for the Appellant particularly having regard to the particulars of the said grounds 2 and 3. Looking at the two grounds in the abstract and without reference to their particulars one is tempted to conclude that they do not convey any complaint which falls within the grounds in Section 145(a)-(b) of the Electoral Act. They are vague. But a careful reading of the two grounds together with their particulars clearly shows that the Petitioner alleges a number of non-compliances and/or corrupt practices. No doubt the two grounds contain some assertions of non-compliances.

That however is not the end of the matter. The crucial question is whether the alleged non-compliances are of such a degree capable of sustaining the petition particularly in view of the -written statement on oath of the sole witness in support of the petition. This question should, of necessity, be considered under the next issue of whether the Court of Appeal was right to rely on Section 146(1) of the Electoral Act 2006 to strike out ground 1 of the petition. And corollarily, whether the Court of Appeal could very well have struck out grounds 2 and 3 of the petition by recourse to Section 146(1) of the Electoral Act 2006

For a comprehensible discourse of this issue it is pertinent to set out some relevant provisions of the Electoral Act, the First Schedule to the Act and the Election Tribunal and Court Practice Directions 2007. These are Sections 145(1) and 146(1) of the Electoral Act 2006. Paragraph 4(1)(a)-(d) of the First Schedule to the Electoral act and paragraph 4(1) (2) and (3) of the Election Tribunal and Court Practice Directions 2007 which are set out hereunder as follows:-

Section 145(1) of the Electoral Act says:

“An election may be questioned on any of the following grounds:

(a) that the person whose election in 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 provision of this Act.

(c) that the Respondent was not duly elected by majority of lawful votes cast at the election; or

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

Section 146(d) of the Act provides:

“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

Paragraph 4(1) of the First Schedule to the Electoral Act 2006 comes within the Rules and Procedure for Election Petitions.

The said Paragraph 4 states:

“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. ”

And paragraph 4 of the Election Tribunal and Court Practice Directions 2007 pertains to evidence at the hearing of a petition.

Paragraph 4 says:

“4.(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court.

(2) Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where is he not represented by a legal practitioner.

There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the depositions.

It is clear from the above that the present petition questions the election of the 1st and 2nd Respondents on the grounds stipulated in Section 145(1)(a) and (b) of the Electoral Act 2006 that is,

(a) that the 1st and 2nd Respondents whose election is being questioned were at the time of the election on the 21/4/07 not qualified to contest the election; and/or

(b) that their election was invalid by reason of corrupt practices or non-compliances with the provisions of the Electoral Act 2006.

The present issue pertains to the second ground of non-compliance with the provisions of the Electoral Act. I wish to reiterate that the pertinent question is whether on the face of it, the petition contains such degree of non-compliances capable of sustaining the petition, particularly having regard to the written statement on oath of the sole witness in support of the petition.

In its ruling at page 249 of the record of Court of Appeal per Raphael Chikwe Agbo, (JCA) said: .

“A party who founds his petition on the grounds of substantial non-compliance with the provisions of the Electoral Act must not only plead and prove substantial non-compliance but must also pursuant to the provisions of Section 146 of the Electoral Act plead and prove that the non-compliance substantially affected the result of the election. Non-compliance with the provisions of the Act without more is not sufficient to invalidate an election. See BUHARI v OBASANJO (2005) 2 NWLR (Part 910) 241, YUSUF v OBASANJO (2005) 18 N.W.L.R. (Part 956). It follows that where insufficient facts or none at all are pleaded to establish substantial effect of the noncompliance on the result of the election, no reasonable cause of action has been made out. I have carefully perused the petition and no where have I seen pleaded facts establishing the substantiality of the effect of the alleged non-compliance with the provisions of the Electoral Act on the result of the election. Ground I therefore cannot be sustained and it is hereby struck out.”

The Appellant was at great pains to assert that the Court of Appeal erred when it struck out the petition at that preliminary stage and without taking evidence to determine it on the merit.

In the first place it is conceded that the Court of Appeal slightly over-stepped its bounds when it spoke of the Petitioner’s duty to plead and prove substantial non-compliance. The question of proof of substantial non-compliance that affected the result of the election did not arise for determination in the preliminary objections; that question being one that can only arise after evidence at the trial. For the purpose of the two preliminary objections, the materials for consideration are only those contained in the petition and the accompanying written statement on oath. Barring the above remarks, I am inclined to agree with the Court below about the duty of the Petitioner/Appellant to plead not only noncompliance but also that the non-compliance substantially affected the result of the election. That, in my view, is the logical construction of Section 145(1)(b) and Section 146(1) of the Electoral Act. Section 145(1)(b) speaks simply of non-compliance without any qualification. But Section 146(1) of the Act provides specifically for the degree of noncompliance by reason of which an election can be invalidated. The provision is an amplification of the otherwise unspecified noncompliance in Section 145(1)(b) of the Act. It follows that the relevant portion of Section 146(1) must, of necessity, be read in conjunction with

Section 145(1)(b) of the Act. For the purpose of meeting the requirements of the combined provisions of Sections 145(1)(b) and 146(1) of the Electoral Act therefore, a petitioner who challenges the election of a respondent on the ground of non-compliance with the provisions of the Electoral Act must plead not just the fact of the alleged non-compliance, but must go a step further to plead that the noncompliance substantially affected the result of the election.

This is my view accords with common sense. It is inconceivable to suggest that the bare assertion of non-compliance in an election petition without more is sufficient pleading to sustain the petition. If that were so then practically every election petition would succeed, in that, there is, in practical terms, no election without one form of non-compliance or the other. That obviously cannot be the purpose of the provisions of Section 145(1)(b) and 146(1) of the Electoral Act. I am firmly of the view that for the purpose of sustaining a petition on the allegation of non-compliance with the provisions of the Electoral Act there must be the assertion in the petition that the non-compliance substantially affected the result. This was the view of the Court of Appeal in BUHARI v OBASANJO (2005) 2 N.W.L.R. (Part 910) 241 at 453 where the court per Mohammed J.C.A., as he then was, said:

“In the determination of the complaints of the petitions in their petition of general non-compliance with the provisions of the Electoral Act 2002 in the conduct of the election by the 3rd respondent, it is necessary to determine if the noncompliance was substantial and also whether the noncompliance had also substantially affected the result of the election……”

In YUSUF v OBASANJO (2005) 18 N.W.L.R. (Part 756) the Court of Appeal per Salami JC.A, at page 181 restated the principle when he declared:

“Further on this ground of the petition, an election shall not be invalidated merely for the reason that it was not conducted substantially in accordance with the provisions of the Electoral Act. It must be shown that the non-compliance had affected the result of the election. The petitioner must not only show non-compliance but must also demonstrate that the votes attracted or scored through the non-compliance affected the result of the election…. ”

Furthermore there is the innovation brought in by the Election Tribunal and Court Practice Directions 2007. Paragraphs 1(a)(b) and (c) thereof provides that an election petition shall be accompanied by (i) a list of witnesses intended to be called in proof of the petition (ii) written statements on oath of the witnesses and (iii) copies or list of every document to be relied on at the hearing. The manifest intention of the totality of the provisions of Section 145(1)( d) and 146(1) of the Electoral Act and Paragraph l(a)(b) and (e) of the Election Tribunal and Court Practice Directions is to ensure that only a petition which on its face and in the face of the accompanying written statement on oath discloses a reasonable cause of action that can go for trial. A petition which on the face of it is defective or which in the face of the written statements on oath discloses no reasonable cause of action should be struck out on the application of the Respondent.

Now on the contents of the petition, I have carefully examined the grounds of the petition and the 28 paragraph written statement on oath of the sole witness, Dr. Paul Dike. The statement is, as it were, and by the provisions of paragraph 4(1) (2) and (3) of the Election Tribunal and Court Practice Directions 2007, the front loaded evidence-in-chief by which the petition is to be proved. In paragraphs 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the said statement a number of allegations of non-compliance are made. These include non publication and display of voters register in Anambra, Abia, Ebonyi, Enugu and Imo States, non voting in the same states in the South East Zone of the country, non provision of polling booths, the petitioners inability to see the Resident Electoral Commissioner and the intimidating presence of soldiers in the streets. In paragraph 10 thereof the witness stated that he personally monitored the election by four named Local Government Areas of Anambra State and observed that no voting took place in any of them. This cannot be proof that there was no election in over 700 Local Governments of the country. There was no assertion in the said paragraphs that the alleged non-compliances substantially affected the result of the election. On the face of it, the petition is completely lacking

in materials by which its ground of non-compliance with the provisions of Section 145(1)(b) of the Electoral Act can be proved. In so far as the allegation of non-compliances is concerned the petition is patently devoid of any substance and thus discloses no reasonable cause of action.

In the face of this manifest lack of substance with respect to the allegations of non-compliances, could the Court of Appeal have gone on to trial of that issue I shall answer this question in the negative. The court below was perfectly in order to strike out ground 1 of the petition for non disclosure of any reasonable cause of action. And by extension the court below could, very well, have struck out grounds 2 and 3 of the provisions of the Act.

With respect to ground 4 of the petition the Court of Appeal reasoned and concluded as follows:

“State Governors are by the provision of Section 176 to 180 of the Constitution of the Federal Republic of Nigeria 1999 elected by the people of their states. Blacks Law Dictionary 5th Edition defines “elected” in ordinary signification carries with it the idea of a vote, generally popular, sometimes more restricted and cannot be held the synonym of any other mode of filling a position.” The word “employment” is not a synonym for the word “elected”. There is no iota of law supporting that ground. It is premised on frivolity and discloses no reasonable cause of action and it is hereby struck out”

I agree with the above reasoning and conclusion. The resolution of this issue can be found in the provisions of Section 137(1)(g) itself and the interpretation Section 318 of the Constitution. Section 137(1)(g) of the Constitution provides:

“A person shall not be qualified for election to the office of President if being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.”

In Section 318 of the Constitution “civil service of the Federation is defined to mean service of the Federation in a civil capacity as staff of the office of the President, the Vice President, a ministry or department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation. And the civil service of the State is defined to mean service of the Governor of a State on a civil capacity as staff of the Office of the Governor, Deputy Governor or a ministry or department of Government of the State assigned with the responsibility for any business of the Government of the State. There are similar definitions of public service of a State.

In all these definitions while persons employed in the civil or public service of the Federation or of a State include staff of the President, Vice President, Governors an Deputy Governors, they do not however include the President, Vice President, Governors and Deputy Governors. Learned counsel for the 1st – 4th Respondents referred to these definitions in Section 318 of the Constitution and submitted that by excluding elected officers, like Governors and Deputy Governors from the list of persons “employed” in the civil or public service of a State, Governors and Deputy Governors are not civil or public servants within the provision of Section 137(1)(g) of the Constitution. I agree entirely with this submission, and to which the Appellant has no answer. I agree that the latin maxim “expressio unius est exclusion alterius applies to exclude Governors and Deputy Governors. In like manner while persons employed in the civil or public service of the Federation and of a state includes Clerk or other staff of the National Assembly, and State Assemblies, they do not include elected members of the National and State Assemblies.

In view of the foregoing considerations it is my view that ground 4 of the petition disclosed no reasonable cause of action and same was rightly struck out for incompetence.

In conclusion, I hold that the petition as was constituted was incompetent and was rightly struck out in the wake of the two preliminary objections. This appeal therefore fails and same is accordingly dismissed.

I make no orders as to costs.

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SC.270/2007