Dim Chukwuemeka Odumegwu-ojukwu V. Umaru Musa Yar’adua & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
AGBO, J.C.A.
The petitioner and the 1st respondent were candidates in the presidential election which was held on 21st April, 2007. The 2nd respondent was the running mate of the 1st respondent. The 3rd respondent was the body statutorily vested with the power and authority to conduct presidential election in Nigeria while the 4th respondent was the returning officer who declared the result of the election. The 5th respondent was the political party that sponsored the 1st and 2nd respondents for the election. After the declaration of the result of the election by the 4th respondent who declared the 1st respondent as having won the election, the petitioner, being dissatisfied with the result, filed this petition.
Upon service on the respondents of the petition, the 1st and 2nd respondents on 3rd August, 2007 filed a motion praying this court as follows:
- An Order of this Honourable Court dismissing and/or striking out this petition.
AND FOR SUCH FURTHER OR OTHER ORDER as this Honourable Court may deem fit to make in the circumstances of this case.
AND FURTHER TAKE NOTICE that the GROUNDS upon which this is sought are as follows:
(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.
The parties exchanged written addresses.
Also on the same 3rd August, 2007, the 3rd and 4th respondents filed a notice of preliminary objection seeking an order dismissing the petition on the grounds stated hereunder.
“(i) The petitioner has not disclosed any reasonable cause of action against the respondent, 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 any office in Nigeria, particularly election into the office of President and Vice President respectively.
(ii) 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 thereunder as constituted have not shown that the election was not conducted substantially in accordance with principles of this Act or that non-compliance affected substantially the result of the election as envisaged under the provisions of section 145(1) of the Electoral Act, 2006.
(iii) The petition is a gross abuse of the process of the court
(iv) The Honourable Court lacks the jurisdiction and/or vires to entertain the petition as constituted.”
Both parties also exchanged written addresses.
With the consent of the parties, the two applications were consolidated and heard together. The 1stt and 2nd respondents in arguing their application raised two issues for determination to wit: (i) Whether the petition as presented before this Honourable Court is competent having not been brought in accordance with the provision of the Electoral Act, 2006.
(ii) Whether this Honourable Court has jurisdiction to entertain the petition.
The petitioner on the other hand distilled only one issue for determination to wit:
“Whether this Petition complies with the provisions of the constitution and the Electoral Act of 2006 as to confer jurisdiction on this Honourable Court to hear and determine same.” The 3rd and 4th respondents raised these four issues for determination in their argument viz:
(i) Whether the petitioner has disclosed any reasonable cause of action against the respondent, the petition having failed woefully to disclose any constitutional disqualification against the 1st and 2nd respondent who have not been shown to be disqualified to contest election into any office in Nigeria, particularly election into the office of President and Vice President respectively.
(iii) Whether the petition has disclosed any reasonable cause of action against the respondent, when 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 principles of this Act or that non-compliance affected substantially the result of the election as envisaged under the provisions of section 145(1) of the Electoral Act, 2006.
(iii) Whether the petition is not a gross abuse of the process of the court.
(iv) whether the Honourable Court lacks the jurisdiction and or vires to entertain the petition as constituted.”
The petitioner on the other hand distilled a sole issue in determination to wit:
“Whether the court has jurisdiction to entertain this petition as properly constituted AND whether same discloses a reasonable cause of action.”
Both of these applications are in effect seeking the same prayers. They want this court to determine this petition at this stage without the necessity of their joining issues with the petitioner on the facts. I have carefully looked at the issues as adumbrated by all the parties and I believe that the 3rd and 4th respondents issues 1 and 2 completely takes care of all the issues articulated and argued by the parties in the two applications. This application shall therefore be determined in line with those issues as articulated.
Before going into the main issues, I find it necessary to briefly deal with the preliminary issues raised by the petitioner in his answer to the application by the 1st and 2nd respondents. The 1st and 2nd respondents predicated their prayer on three grounds. The third ground was “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. In their written argument, no reference whatsoever was made to this ground and no argument was proferred in that regard. The petitioner bas argued that the respondent having not placed any argument before the court in relation to that ground has abandoned it. The petitioner is right. Any ground on which no argument is proferred is deemed abandoned. That ground is therefore of no moment in this application. The petitioner has also complained about the affidavit in support of the application of the 1st and 2nd respondent claiming they breach the provisions of the Evidence Act. The argument is of no moment. This is because evidence is totally irrelevant in preliminary objections whether oral affidavit or documentary. Preliminary objections are rather determined on the face of the processes filed and no more. A preliminary objection is an objection against the irregularity of a court process which if it succeeds terminates the proceedings at that stage. All that is necessary is that the objector puts the other party on notice of his objection and the ground for the objection. Evidence at this point is completely irrelevant. In fact the basic gain accruing from a successful preliminary objection is the obviation of the necessity to lead evidence in a trial. Once an action can be decided on a preliminary objection or pleadings, it will be absurd to subject the court to the futility of taking evidence, See Adigun v. Ayinde (1993) 8 NWLR (Pt.313) 516, Mills v. Renner (1940) 6 WACA 144.
These applications have challenged the competence of the petition. For the purpose of these applications, I consider relevant, the provisions of Ss 140(1), 145(1), 146 of the Electoral Act, 2006 and paragraph 4 (1, 2, 3 and 6) of the first scheduled to the Electoral Act, 2006.
S. 140(1) No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or under return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the constitution or of this Act, and in which the person elected or returned is joined as a party.
S.145(1)An election may be questioned on any of the following grounds.
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
S.146. 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.
Para. 4(1) An election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the rights 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.
(2) The election petition shall be divided into paragraphs each of which shall be confined to a distinct issue or major facts of the election petition, and every paragraph shall be numbered consecutively.
(3) The election petition shall further:
(a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned, having polled the highest number of lawful votes cast at the election or that the election may be declared nullified, as the case may be, and
(b) be signed by petitioner or all petitioners or by the solicitor, if any, named at the foot of the election petition.
(6) An election petition, which does not conform with, subparagraph (1) of this paragraph or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.”
I shall further set out in extenso the petitioner’s grounds and facts which are being attacked in this application. They read:
- Your petitioner’s grounds for bringing this petition are as follows:
Ground 1
The election in which the 1st and 2nd respondents were declared winner was not conducted in compliance with the 1999 Constitution and the Electoral Acts, 2006.
Particulars
(a) Copies of voters list was never displayed.
(b) Supplementary voters list register was never published
(c) The ballot papers for the said-election were not numbered serially as commanded by law.
(d) Alternatively, if any voters register was never published within the stipulated time, but in any event, it was never displayed or published in South East Zone of the county at all. Your petitioner will rely on the unanswered advertorial complaint of OHANEZE in the Vanguard Newspapers of April 12, 2007.
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 election in Nigeria, no polling 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, belongs to the 4 respondent 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 collection or counting of votes or the compilation of result.
(d) Yours petitioner was not allowed by the 3rd respondent into the offices of the 3rd respondent in Anambra state to observed the compilation of results.
Grounds 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 State
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 the franchise to the potential voters in those states was lost as a result of arbitrary and discriminatory conduct of the 3rd respondent.
(b) presidential Election has Nationwide Constituency and failure to give any voters their right of franchise nullifies the entire election because there is no divided sovereignty for the election of a Presidential or at all
(c) The 4th respondent announced on air that elections for the office of President would in compliance with section 47 and48 of the Act take place between 10am and 3pm 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 night in their homes.
Ground 4
The 1st and 2nd respondents are not qualified to contest for an election to the office of President and Vice President, respectively, because having been employed by people of Katsina and Bayelsa State as their Chief Public Servant or Chief Executives they did not, contrary to section 137(1)(g) of the 1999 Constitution, resign or withdraw from their offices as executive governors at all prior to the said Presidential Election.
Paragraph 4(1)(d) of the first schedule to the Electoral Act, 2006 commands that an election petition shall 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, while paragraph 4(2) demands that the petition be divided into paragraphs each of which is CONFINED to a distinct issue or major facts of the election petition. The petition in the instant case has set out grounds of the petition and has in each ground tied and particularized facts underpinning or founding the said grounds. S. 145(1) of the Electoral Act, 2006 sets out and delimits the grounds upon which an election may be questioned. There are four grounds set out in the said section. Ground 1 of the petition clearly conforms with s. 145(1)(b) of the Electoral Act while ground 4 conforms with s.145(1)(a) of the Electoral Act. Ground 2 and 3 do not conform or relate to any of the four grounds setout in S. 145(1) of the Electoral Act and are hereby struck out.
But that is not the end of the matter. A party who founds his petition on the ground 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 provision of s. 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 (pt. 910) 241; Yusuf v. Obasanjo (2005) 18 NWLR (PL956) 96. It follows that where insufficient facts or none at all are pleaded to establish substantial effect of the non-compliance 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 1 therefore cannot be sustained and it is hereby struck out. Ground 4 of the petition challenges the qualification of the 1st and 2nd respondents to contest the April 21st 2007 Presidential election on the basis that being employees in the public services of the Katsina and Bayelsa State Governments, both candidates ought to have resigned their appointments at least 30 days before the date of the election pursuant to the provision of s.137(1)(g) of the 1999 Constitution. These respondents did not according to the petitioner resign from their jobs as executive Governors of the named States. State governors are, by the provision of Ss. 176 to 180 of the Constitution of the Federal Republic of Nigeria 1999 elected by the peoples of their respective States. They are not employed by the people of their States. Blacks Law Dictionary 5th Ed. Defines ‘elected’ at page 464. It says “The word ‘elected’ in ordinary signification, carries with it the idea of a vote, generally popular, sometimes more restricted, and cannot be held to be 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.
There is complete want of reasonable cause of action in this petition. Each application succeeds. This petition is hereby struck out. There shall be no order as to costs.
Other Citations: (2007)LCN/2455(CA)
