Ebi Matthew Sunny Goli & Ors V. Hon. Nelson Belief & Ors (2008)
LawGlobal-Hub Lead Judgment Report
TIJANI ABDULLAHI, J.C.A.
This is an appeal from the ruling of the National Assembly/Governorship Legislative Houses Election Tribunal hereinafter referred as the lower Tribunal sitting at Yenagoa delivered on the 23rd of July 2007 wherein the petition of the Appellant was dismissed for non-compliance with the provisions of Section 144 (1) of the Electoral Act, 2006.
It is pertinent to state from the onset that after the declaration of the results of the election in which the 1st Respondent was returned as the winner of the election with 187, 760,06 as against the Respondents who scored 6,593, 435, 657 and 634 votes respectively, the Appellants who were the Petitioners jointly filed a single petition together with their political parties challenging the return of the Appellant.
On the 12th of July, 2007, 2nd to the 5th Respondents filed a Notice of Preliminary Objection as follows:
“TAKE NOTICE THAT at the hearing of this petition.
The 2nd to 5th Respondents/Applicants shall move this Honourable Tribunal by way of Preliminary Objection for:
AN ORDER striking out the petition as same is incompetent and not properly before this Honourable Tribunal;
AND FOR such further or other orders as this Honourable Tribunal shall deem fit to make in the circumstance.
AND TAKE NOTICE THAT the grounds for the preliminary objection are as follows:
- That the 1st, 2nd and 3rd Petitioners/Respondents, being candidates sponsored by the 4th, 5th and 6th Petitioners/Respondents respectively in the 21st April, 2007 National Assembly Elections for the Brass/Nembe Federal Constituency of Bayelsa State, are persons and parties with divergent interests in the said election and cannot therefore be joined as co-petitioners in one petition.
- That the joinder of 1st to 6th Petitioners in one petition is bad for misjoinder as the requisite common interest which should ground a joinder of Petitioners is absent in this petition.
- That each of the political parties in this petition having sponsored each of 1st to 3rd petitioners/Respondents, have separate and distinct causes of action accruing to each of them by virtue of Section 144 (1) of the Electoral Act, 2006 as amended and cannot therefore jointly present and maintain an election Petition.
- That this petition fails the acid test of jurisdiction because a Court or Tribunal is vested with jurisdiction when, inter alia, the action is initiated by due process of law.”
The lower tribunal after hearing arguments from counsel on Preliminary Objection supra held thus:
“In the end we find the Preliminary Objection has merit. Consequently we hold that the petition lacks competence and hereby strike it out.”
Dissatisfied with the ruling of the lower Tribunal, the petitioners hereafter referred as the Appellants filed a Notice of Appeal consisting of two grounds. The grounds with their particulars read thus:
- GROUNDS OF APPEAL
- ERROR IN LAW
The tribunal erred in law when it held that we are of the view that from the facts in the petition the three different candidates is a clear violation of Section 144 of the Electoral Act.
PARTICULARS OF ERROR
- section 144 of the Electoral Act deals solely with persons who are entitled to present election petition that is locus standi.
- The persons who are entitled to present petition are a candidate in an election and a political party who participated in the election.
- It does not even remotely deal with conditions or the lack of it for joinder of Petitions.
- ERROR IN LAW
The Tribunal erred in law when it held that a simple reading of the provisions (that is Section 144 of the (Electoral Act) will show that the only joint petition recognised is that of a candidate and his political party.
PARTICULARS OF ERROR
- The interpretation ascribed to Section 144 of the Electoral Act is unduly restrictive and ignores the operative words ‘one or more’ therein.
- The word ‘more’ mens beyond one which is Inclusive of six’
- Nothing in the provision prohibits the joinder of more than two Petitioners in whom any right to relief (in respect of or arising out of the same transaction) is alleged to exist whether jointly or
severally or alternatively’ where if such Petitioners brought separate actions any common question of law or fact would arise and judgment may be given for such one or more of the Petitioners as may be found to be entitled to relief for such reliefs as any or all of the Petitioners may be entitled to without amendment.
- RELIEFS SOUGHT FROM THE COURT OF APPEAL;
(a) AN ORDER setting aside the decision of National Assembly/Governorship and Legislative House Election Tribunal dated the 23rd July, 2007 and directing the trial of EBI MATTHEW SUNNY GOLI & 5 ORS v. HON. NELSON BELIEF & 4 ORS, Petition No.HR/EP/BYS/26/2007 on the merit.
The case of the Appellants is that in the election to the National Assembly which was slated to hold on the 21st day of April, 2007, the agents of the 2nd Respondent were not present at any or all of the polling units and other operational centres, while agents of the Appellants waited all through election hours and beyond for the arrival of 2nd Respondent’s agents to conduct election. The result was that in Brass/Nembe Federal Constituency:
“i. Ballot papers, unit result-form register of voters, ballot boxes, collation of results forms and other election material whether sensitive or non-sensitive were not distributed, indeed no polling units were established for the purposes of the election;
ii. There was no accreditation of registered voters;
iii. There was no voting; neither the 2nd Petitioner nor the 1st Respondent hid opportunity to vote’
iv. There was no counting of ballots, collation and announcement of result at the polling units and other places and stages of a valid electoral process before party agents and security personnel; results were neither signed before party agents, nor same given to the agents of your petitioner, and
v. Not even a single Policeman, nor member of the Nigerian Civil Defence Corp was deployed to the various points where election was to be conducted.
vi. Despite the deliberate and total non-compliance with the clear provisions of the Electoral Act and constitution and the resultant disenfranchisement of the registered voters in the constituency, the 1st respondent was curiously not only returned, but with such number of votes in excess of registered, but with such number of votes in excess of registered voters and persons purportedly accredited to vote.
The foregoing allegations were roundly denied by the all the Respondents.”
In compliance with the Practice Direction, No. 2 of 2007, the parties filed written briefs for and against the application and as earlier stated in this judgment, the lower Tribunal upheld the preliminary objection of the Respondents and struck out the petition.
From the two grounds of appeal filed by the Appellants, they identified one issue for determination to wit:
“Whether in the circumstances of the petition, the joinder of the 1st – 3rd Appellants with there (sic) respective political parties against the return of the 1st respondent is in breach of Section 144 (1) of the Electoral Act, thus rendering the petition incompetent and liable to be struck out.”
The 1st Respondent, for his part also formulated a lone issue for determination which reads thus:
“Having regard to the clear provisions of Section 144 (1) of the Electoral Act, 2006 stipulating persons entitled to present an election and the Petitioners/Appellants divergent and conflicting interest in the election, whether the 1st, 2nd and 3rd Petitioner/Appellants who were candidates sponsored by the 4th, 5th and 6th Petitioners/Appellants’ their different but respective political parties, and the said political parties can together present and maintain a single/joint petition as they did in this case.”
Counsel for the 2nd to 5th Respondents equally formulated a single issue for determination to wit:
“Whether three candidates and three political parties can in a single petition challenge the return of a candidate at an election having regards to Section 144 (1) of the Electoral Act, 2006.”
It is instructive to state at this juncture that all the issues formulated by the parties are similar to one another but the one formulated by Counsel to 2nd to 5th Respondents is more succinct and directly addresses the complaint of the Appellants and I adopt it as the issue calling for determination in this appeal.
On the 3rd day of December, 2007 when the appeal came before us for hearing, learned Counsel for the parties adopted their briefs. They did not proffer any oral argument in an amplification of the said briefs. Learned Counsel for the Appellants urged us to allow the appeal whilst Counsel for the respondents urged us to dismiss same as lacking in merit.
It is the contention of the learned Counsel for the Appellants that the sole reason proffered by the lower Tribunal in striking the petition is that the only joint petition contemplated by Section 144 of the Electoral Act, 2006 is one by a candidate and his political party. Learned Counsel submitted that contrary to the view held by the lower Tribunal, Section 144 deals solely with the persons ‘who by law can present election petition. In interpreting a statute. learned Counsel further submitted that where words in a statute are clear and unambiguous literal interpretation is the advised canon of interpretation especially where it will not lead to absurdities. He relied on the case of ISIAKU v. ADAMU (1999) 1 NEPLR 87 at pp. 97.
Learned Counsel submitted that there is nothing in the said Section which suggests that candidates from different wards who successfully contested the election against Respondents from different wards cannot present a joint petition’ provided their respective facts be ascertained.
Learned Counsel contended that the Electoral Act makes room for preservation of Petitions in the face of non-compliance.
Indeed, it is as if to say, ‘to demand every petition to satisfy the innumerable requirement of Electoral Act may be an order too tall to attain.’ Section 147 (3) of the Electoral Act, 2006 as amended’ provides that, the Tribunal may strike out an election petition on the ground that it is not in accordance with part of the Act or the 1st Schedule thereto. He relied on the case of ANOZIE v OBICHERE (2004) ALL NWLR (Part 208) p.873 PP 894 – 895 paras H – A.
Learned Counsel submitted that by striking out the petition of the Appellants, it had driven a willing litigant away from the judgment seat, an act frowned upon by the Court. One would therefore see that from all fronts, the Tribunal was hasty in striking out the petition. He further submitted that so many revelations that could have surfaced at the full trial were summarily driven underground, a situation which usually leads to dissatisfaction. He referred us to the case of ANOZIE v OBICHERE (supra) p.894 paras F-G.
It is the submission of the learned counsel that the petition is explicit and unambiguous as to the facts and grounds. The same goes for the reliefs claimed. Little wonder, learned Counsel went on, the Respondents had no difficulties in filing their replies. None was confused and none asked for better particulars. Interestingly none contended that the petition could not be conveniently tried as presently constituted. Learned Counsel then posed this question thus:
“Could it therefore have been within the contemplation of makers of the Electoral yet to prohibit the filing of the instant petition in view of Section 144 (1) of Electoral Act, 2006 as amended?” He answered the question not in the affirmative and further submitted that the foregoing provision merely deals with the right of person to sue and not joinder of parties or causes or action.
On order 12 Rule 1 of the Federal High Court Civil Procedure Rules, which the Tribunal is enjoined to apply by virtue of paragraph 50 of the 1st Schedule to the Electoral Act, learned Counsel argued that the rules allow joinder of several Petitioners in whom right to relief (in respect of or arising out of some, transaction) is alleged to exist whether jointly or severally or alternatively, where if such Petitioners brought separate actions any common question of law or more of the Petitioners as may be found to be entitled to relief for such reliefs as any or all of the petitioners may be entitled to file a single petition. He relied on the case of CBN v ADEDEJI (2005) ALL FWLR (Pt.244) p.912 pp.928 paras B – C, Ratio 4. Learned Counsel urged us to allow the appeal for the reason canvassed herein and direct that the petition be heard on the merit.
In a brief settled by Counsel to the 1st Respondent, F. D. Lott, learned Counsel contended that in the appeal on hand, it is the purport of Section 144 (1) )f the Electoral Act, 2006 that calls for consideration. The sub-section provides that an election petition may be presented by one or more of the following persons:
“(a) A candidate in an election.
(b) A political party which participated in the election.
Learned Counsel submitted that the sub section provides for not only those who can Present an election but also Persons who can jointly present same. A careful perusal of the sub-section shows that an election petition can be presented or filed by the aggrieved candidate who lost the election or by any political party which participated in the election or the two of them jointly, learned Counsel further submitted.
Learned Counsel argued that it must be borne in mind that election is a proceeding sui generis, same being of its own kind and possessing an individualistic character, unique or like only to itself. He submitted that the maker of law, inserted this Section [(144) (1)] to specify those who can present an election petition individually or jointly no more no less. A resort to Order 12 Rule 1 (1) of the Federal High Court Rules is not proper as the substantive law has provided clearly for that situation’ He relied on the case of BUHARI v YUSUF (2003) 14 NWLR (Pt.84) 466.
It is the contention of the learned Counsel that the view of the learned Judges of the Election Tribunal that if various candidates and their political parties were contemplated in presenting a joint petition, Section 144 (1) would have provided for “candidates” as opposed to “a candidate” and “political party” as opposed to “a political party” is quite correct Learned Counsel urged us to dismiss the appeal as lacking in merit.
In his brief, learned Counsel for the 2nd to 5th Respondents contended that the success or other of this appeal is dependent on the interpretation of Section (144) (1) of the Electoral Act, 2006 which the Tribunal most painstakingly did. Learned Counsel further contended that the Tribunal was right when it held that the Section under reference – by its wordings never contemplated a joint petition by two separate and distinct persons in respect of an election in a constituency, in so far as separate persons and parties contested the election separately and filed separate forms with INEC. He went on to contend that a person aggrieved with result of an election must seek remedy under the canopy and for the platform on which he or she contested the election without attempting to illegally form an association of failed candidates/Parties.
It is the contention of the learned Counsel that any attempt to interpret Section 144 (1) of the Electoral Act, 2006 to admit of joint petition by parties and candidates will lead to an incongruous situation where 25 political parties that contested the Presidential Election will file one single petition with their candidates. Learned Counsel opined that this certainly cannot be the contemplation of the legislature when the law was being drafted.
Learned Counsel argued that there is no denying the fact that the Tribunal is established to look into grievances arising from election petition as contained in Section 245 (2) of the 1999 Constitution. Those grievances, learned Counsel further argued.
which are in form of election petition must however comply with the provision of the law, in this case Section 144 (l) of the Electoral Act, 2006, in terms of those filing the petition. Once the filing of the petition is defective in any form, the tribunal is not bound to go into evidence as to know what rights the Appellants have or to embark on a voyage of discovering the so-called “grave allegations of foisting on the people of Nembe/Brass Federal Constituency a representative who did not emerge from the will of the people.”
It is the submission of the learned Counsel that it is trite that once the issue of jurisdiction is raised in any proceedings, the Court or in this case, the tribunal is bound to rule on that before taking any further step in proceedings. Once the Tribunal is of the view that the petition is incompetent having regards to the mode of filing same that is the end of the petition. It will amount to a nullity and time wasting exercise for the Tribunal to embark on looking at the merit or otherwise of the petition. He relied on the case of A. G. OF THE FEDERATION & 2 ORS v C. O. SODE & 2 ORS (1990) 1 NWLR (Pt. 125) p. 500 at p. 542 paras E – G.
Learned Counsel urged us to dismiss the appeal and affirm the decision of the lower Tribunal.
Now, it is all agreed that what calls for determination in this appeal is whether three candidates and three political parties can in a single election petition challenge the return of a candidate at an election having regards to Section 144 (1) of the Electoral Act, 2006. This being the case I am of the view that whether or not the appeal on hand succeeds or fails depends on the interpretation given to Section 144 (1) of the Electoral Act’ 2006′ The Section for ease of reference is hereunder reproduced for critical analysis and examination. It Provides thus:
“An election petition may be presented by one or more of the following Persons:
(a)a candidate in an election;
(b)a political party which participated in the election.
The law is trite and has been settled in a plothera of decided cases that the golden rule of interpretation is that where the words of a statute are clear, plain and unambiguous, the Courts must adopt the literal and plain ordinary meaning. Where the provisions of a statute are clear, plain and unambiguous, the Courts are precluded from resorting to any aid or any other cannon of interpretation.
See OBI v INEC (2007) 11 NWLR (Pt.1046) 565, UWAIFO v. A.G. BENDEL STATE (1953) 4 NCLR 1, SPDC v ISAIAH (1997) 6 NWLR (Pt. 505) and ELEBANJO v DAWODU (2006) 15 NWLR (Pt. 1001) 76.
It is appropriate at this juncture to examine the provisions of Section 144 (1) of the Electoral Act with a view to determining whether or not two or more candidates and their political parties can present a single petition as was done in the case on hand. The Section, at the risk of repeating myself provides thus:
“144 (1 ) “An election petition may be presented by one or more of the following persons:
(a) a candidate in an election;
(b) a political party which participated in the election.”
A cursory look at the provision of the Section stated above, will reveal the fact that same is clear, plain and unambiguous, this being the case the provision will be given ordinary’ literal and natural meaning to the words. In the light of the foregoing we hold the view that the lower Tribunal was right when it held thus:
“We are of the view that from the facts in the petition the 3 different political parties presenting a joint petition with 3 different candidates is a clear violation of Section 144 (1) of the Act.”
We are also in total agreement with the lower Tribunal when it further held as follows:
“A simple reading of the provisions (sic) of that will clearly show joint petition recognised is that of a candidate and his political party. If various candidates and their political parties were contemplated in presenting a joint petition, the Section would have provided for ‘candidates’ (as opposed to ‘a candidate’) and ‘political parties’ as opposed to a political party’ ……”
I am of the considered view that the only permissible situation where election petition by two distinct and different candidates and political parties are maintainable is through the process of consolidation and this may arise where two or more unsuccessful candidates in an election either separately on their own or in conjunction with their respective political parties present election petition against the return of the winner of the election.
In the case of OBIEKWE v OBI (2005)10 NWLR (Pt.932) p. 60 this Court per Galadima, JCA dismissed an appeal on the grounds inter-alia that the Petitioner who sued two candidates from the same political party but paid as if he filed a single petition. His Lordship held that the payment as if he filed a single petition has rendered his petition incompetent on account of inadequate payment of filing fees; as is manifested on the face of the petition.
Hear him:
“The effect of non-payment of fees in election proceedings is grave. The penalty is that the election petition will be deemed not to have be been received and will be struck out for being incurably defective, unless the Tribunal otherwise orders’ The payment of requisite fees by the Petitioner or his Solicitor and the giving of receipt by the Secretary of the Tribunal are conditions precedent to the validity of an election petition. This implies that non-compliance is not a mere irregularity, which can be cured. (EMESIN v NWACHUKWU (1999) 3 NWLR (Pt. 596) 590; OKPOIDO v UDOIKONG (1999) 5 NWLR (Pt.604) 595 referred to) (P. 76, paras A – B);”
Learned Counsel for the Appellants submitted that the Election Tribunal was wrong to strike out the petition without bothering to consider the substance of the petition and whether it is triable in its form. With due respect to the learned Counsel it is now settled beyond per adventure that once the issue of jurisdiction is raised, the only jurisdiction possessed by the Court or Tribunal at that stage is to consider whether it has jurisdiction and once it establishes that it has no jurisdiction, the consequential order the Tribunal will make is an order striking out the matter. Any other thing done apart from an order striking out the petition is a nullity.
Learned Counsel referred us to the case of ANOZIE v OBIEKWE (supra) and submitted that the Tribunal was duty bound to save the petition. Again, with due respect to the learned Counsel, the facts of that case are not apposite to the facts of the case on hand. At any rate, the Tribunal can only save a petition when it is possible under the law. The only limitation to the ‘tribunal in the exercise of her discretion is to exercise same judicially and judiciously. This, I am of the considered view is what the Tribunal has done in striking out the instant petition which failed to comply with the law. Again, learned Counsel for the Appellant contended that many revelations that could have surfaced at the full trial were summarily driven underground. With respect to the learned Counsel, this contention looses sight of the fact that the import and purport of a preliminary objection is to determine the matter in limine without going into the merit. See the case of J.P. v INEC (2004) 12 NWLR (Pt. 886) 140 and P.R.P. v INEC (2004) 9 NWLR (Pt. 877) 24.
Learned Counsel for the Appellants made heavy weather of the fact that the lower Tribunal should have availed herself with provisions of the Federal High court (civil Procedure) Rules, 2000, specifically Order 12. Rule I which said rules allows the joinder of several suits as enjoyed by paragraph 50 of the First Schedule to the Electoral, Act. Again with due respect to the learned counsel, resort to the Federal High court (civil Procedure) Rules is not applicable in the case on hand, as it only applies where there is a lacuna in the Electoral Act. The question of who present an election petition is very expressive on the face of the Electoral Act. There is no need therefore to embark on a voyage of discovery.
On the whole, in the light of all that have been said, I do not find merit in this appeal. I therefore dismiss it with N30,000.00 costs in favour of the Respondents.
Other Citations: (2008)LCN/2656(CA)
