Elder Ikechl Kwu Amadi Obuzor JP. & Anor V. Hon. Wilson Asinobiake & Ors (2008)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the ruling of the National Assembly/Governorship Election Tribunal sitting in Port Harcourt, Rivers State (hereafter referred to as the lower Tribunal) delivered on 11th September, 2007 dismissing the appellants petition on grounds of incompetence and lack of jurisdiction.

The 1st appellant herein was a Senatorial candidate on the platform of the 2nd appellant, Democratic Peoples Party (DPP) at the Senatorial bye-elections, which took place on 28th April, 2007 in respect of the Rivers West Senatorial District of Rivers State. The 1st respondent also participated in the election on the platform of the Peoples Democratic Party (PDP) and was eventually returned by the 2nd respondent, the Independent National Electoral Commission (INEC) as the winner. The appellants were dissatisfied with the conduct of the election and the return of the 1st respondent. In a petition filed on 30/5/07 the 1st and 2nd appellants herein, filed a petition before the lower Tribunal seeking the following reliefs:

1. “A declaration that by the design of the 2nd, 3rd and 4th respondents, the 1st petitioner’s supporters and electorates were prevented from casting their votes for the 1st petitioner in the April -28th, 2007 bi-election (sic) as 1st petitioner’s party name, logo and inscription were not provided on the ballot papers and that no elections were conducted in several wards in the District.
2. A declaration that the purported declaration of 1st respondent by the 2nd, 3rd and 4th respondents as the duly elected SENATOR for the Rivers West Senatorial District is null and void.
3. A declaration that the 1st petitioner having scored the highest number of legitimate and lawful votes cast at the Senatorial election in Rivers West Senatorial District held on April 28, 2007 be declared the winner and returned as such.
4. A perpetual injunction restraining the 1st respondent from parading himself as the duly elected SENATOR from the Rivers West Senatorial District in the April 28, 2007 election.”

The 1st respondent and the 2nd – 4th respondents respectively were duly served with the petition. In reaction thereto both sets of respondents filed motions on notice raising preliminary objections to the petition and seeking the dismissal and/or striking out thereof on grounds of incompetence and lack of jurisdiction. The motions were accompanied by written addresses in support thereof. The petitioners filed counter affidavits to the respective motions and also filed written addresses in support thereof. Both applications raised essentially the same issues. The lower Tribunal therefore consolidated them and heard them together. After a careful consideration of the submissions of all the parties, the lower Tribunal, in a considered ruling at page 262 of the record held as follows:

“In light of the foregoing therefore with heavy emphasis and reliance on issue 3 to which we have emphatically stated we hold that the failure by the petitioner to comply substantially or fully with paragraph 4(1) (c) is a fundamental infraction of the Electoral Act which has rendered the petition incompetent and has robbed the tribunal of jurisdiction.

Accordingly, the applications of the respondents/applicants succeed and the petition is dismissed.”

Dissatisfied with this ruling the appellants filed a notice of appeal dated 26/9/07 containing five grounds of appeal.

The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this Court. In the appellant’s brief dated and filed on 26/10/07 the following three issues were formulated for the determination of this appeal:

1. Whether paragraph 4(1) (c) of the 1st Schedule of the Electoral Act 2006 laid down a procedure for stating scores and for which the Tribunals are bound to follow?
2. What is the meaning and purpose of the phrase “state the scores of candidates”?
3. Whether the Tribunal was right in dismissing the Petitioner’s petition for being incompetent?

In the 1st respondent’s reply brief dated 4/12/07 but deemed fifed on 22/1/08, a single issue was distilled from the grounds of appeal thus:

“Whether the National Assembly Election Petition Tribunal was right when it held that the appellant did not plead the scores of the candidates that contested the election.”

The 2nd – 4th respondents filed a preliminary objection to the hearing of the appeal. It is dated 6/11/07. In their brief of argument dated and filed the same day they argued the preliminary objection and alternatively raised a single issue for determination thus:

“Whether the lower Court was right when it held that the Appellants failed to plead in their petition, the scores of the candidates in the election in question?”

The appellants filed a reply brief dated and filed on 28/1/08 to the 1st respondent’s brief and filed a separate reply brief dated and filed on 13/11/02 to the 2nd – 4th respondents’ brief. At the hearing of this appeal on 13/2/08, N. Joshua, Esq. adopted the appellants’ brief of argument and the respective reply briefs and urged us to allow the appeal. Mr. V.M. Uchendu adopted the 1st respondent’s brief and urged us to dismiss the appeal. K. Wodu, Esq. adopted the 2nd – 4th respondents’ brief and drew our attention to the arguments in respect of the preliminary objection contained at pages 2 & 3 thereof. He adopted the said arguments and the arguments on the merit of the appeal and urged us to dismiss the appeal.

As the 2nd – 4th respondents have raised a preliminary objection to the hearing of the appeal it is prudent to consider it first as it challenges the jurisdiction of this court to hear the appeal. The grounds for the objection as stated on the face of the notice of preliminary objection dated 6/11/07 are as follows:

1. The decision of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal (the lower Court) appealed against by the Appellant is not a decision as to whether or not any person was elected as a member of the National Assembly or of a House of Assembly of a State.
2. The decision of the said Tribunal was accordingly not a determination of the merit of the Petition.
3. By virtue of the provisions of Section 246 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999, this Honourable Court only has jurisdiction to entertain an appeal from the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether any person has been vainly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.
4. In view of the foregoing this Honourable Court does not have the jurisdiction to entertain this appeal.
5. This appeal is therefore competent.

Arguing the preliminary action, learned counsel referred to Section 246 (1)(b) of the 1999 Constitution and submitted that the appellants do not have a right of appeal against the decision of the lower Tribunal have the circumstances of this case.

He-submitted that any decision, which is not on the merits of the petition, such as the striking out or dismissal of a petition for lack of locus standi or jurisdiction, cannot be the basis of an appeal by an aggrieved person. He relied on the case of: Okon Vs Bob (2004) 1 NWLR (854) 378 at 395. He urged us to strike out the appeal.

In reply to the preliminary objection, learned counsel for the appellants argued that the decision appealed against is a final decision, as it finally determines the rights of the parties, and is therefore a final decision within the contemplation of Section 246 (1)of the 1999 Constitution. He submitted that learned counsel’s reliance on the case of Okon Vs Bob (supra) failed to take into account the “nature of the order test” and the recent decision of the Supreme Court in: Awuse Vs Odili (2004) FWLR (193) 350 at 351 H-A to E: also found in (2004) 18 NWLR (851) 116. He also referred to the case of: Mohammed Vs Olawunmi (1990) 2 NWLR (133) 458 at 464 ratios 3 & 4.

He submitted that assuming without conceding that the decision appealed against is an interlocutory decision, the Supreme Court in Awuse Vs Odili (supra) and Buhari Vs Obasanjo (2003) FWLR (186) 709, held that “decision” as contemplated by Section 246 (1) of the Constitution includes interlocutory decisions.

Learned counsel referred to the case of Kalu Vs Uzor (2006) 8 NWLR (981) 66 at 98-99 A-H and A-E where he contended that this Court refused to follow the decision in Orubo Vs N.E.C. (1988) 5 NWLR (94), which relied on the case of Okon Vs Bob (supra). He submitted that in election matters there is no distinction between final and interlocutory decisions. He relied on: Bounwe Vs R.E.G. Delta State (2006) 1 NWLR (961) 286 at 312 G-D and Awuse Vs Odili (supra). He distinguished Okon Vs Bob (supra) from the present case on the ground that in Okon Vs Bob (supra) the dispute was an intra party matter. He urged us to hold that the appellants have a right of appeal against the decision of the lower Tribunal and to dismiss the preliminary objection.

An appropriate starting point for the consideration of this issue is Section 246 (1)(b (i) of the 1999 Constitution, which provides:

246. (1) “An appeal to the Court of Appeal shall lie as of right from –

(a) ……………

(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative House Election Tribunals on any question as to whether –

(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.”

This provision has been subjected to judicial interpretation in a number of decisions both of this Court and the Supreme Court. It is the contention of the 2nd – 4th respondents that as the decision appealed against was not a determination of the petition on its merits as to whether or not the 1st respondent was validly elected, Section 246 (1)(b) of the Constitution does not confer a right of appeal on the appellants. The appellants on the other hand argue that being a final decision they have a right of appeal against it.

I have considered the case of Okon Vs Bob (supra) relied upon by learned counsel for the 2nd – 4tn respondents. In that case the Court, employing the literal rule of interpretation, held that any decision other than a determination of the petition on the merits does not fall within the ambit of Section 246 (1) (b) (i) of the Constitution. However in the more recent case of Awuse v. Odili (2003) 18 NWLR (851) 116 at 154 H-A; 164 C-H and 169 -170 E – B, the Supreme Court construed the provisions of section 246 (1)(b) (a) in conjunction with section 318 (1) of the Constitution and concluded that an appeal to the Court of Appeal is not limited to hearing appeals only as to whether any person has been validly elected into the office of Governor (which was the relevant consideration in that case). In that case a preliminary objection was raised before the Governorship Election Tribunal challenging the competence of the petition. The objection was upheld and the petition was struck out. An appeal to the Court of Appeal against that decision was allowed and the petition remitted to the Tribunal for hearing on the merit. On appeal to the Supreme Court, one of the issues raised was that there was no right of appeal to the Court of Appeal from that decision because it did not fall within the provisions of Section 246 (1) of the Constitution. The Court held that by virtue of Section 246 (1) an appeal would lie as of right to the Court of Appeal on “any question” as to whether any person has been validly elected to the office of Governor. The court held that the use of the word “any” qualifying the word “question” was deliberately used by the lawmakers to indicate that an appeal to the Court of Appeal is not limited only to hearing appeals as to whether any person has been validly elected to the office of Governor. Furthermore, having regard to the definition of “decision” in Section 318 (1) of the Constitution, His Lordship Niki Tobi, JSC stated thus:

“The provision of Section 318 (1) of the 1999 Constitution leaves no one in doubt as the meaning of decision. It reads:

“decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence.” And upon that premise an appeal surely lies to the Court of Appeal in respect of the interlocutory decision of the Governor’s Election Tribunal sitting in Port Harcourt….There is no question that an appeal in respect of decisions by a Governorship Election Tribunal lies to the Court of Appeal, and by virtue of the clear provisions of Section 246 (3) the decision of that Court is final.”

In light of the above decision, which is binding on this Court, I hold that the appellants have a right of appeal against the decision of the lower Tribunal, being a final decision, and that the appeal is therefore competent. The preliminary objection is therefore overruled.

I shall now consider the merits of the appeal. Having carefully examined the issues formulated by the parties, I am of the view that the third issue formulated by the appellant is all encompassing and would adequately resolve the issues in contention in this appeal. The appellants did not formulate any issue on ground 5 of the notice of appeal. The said ground is therefore deemed abandoned and accordingly struck out. See: Hajaig & Anor v. Hajaig & Ors. (2004) ALL FWLR (207) 697 at 709 H-A: Adigun v. Ayinde (1993) 8 NWLR (313) 516. I shall therefore determine the appeal on the appellant’s issue no. 3:

“Whether the Tribunal was right in dismissing the petitioners’ petition for being incompetent.”

As stated earlier in this judgment the basis for the objection of the 2nd – 4tn respondents to the petition before the lower Tribunal was that the appellants failed to state the scores of the candidates in accordance with the mandatory provisions of paragraph 4(1) (c) of the 1st Schedule to the Electoral Act. In their brief of argument the appellants submitted that by paragraphs 7, 23 and 29 of their petition and a newspaper publication attached thereto, they sought to contest the fact that no scores were awarded to the candidates except as shown in Forms EC8A attached and served along with the petition and that having attached the uncontested results the issue ought not to have been raised by way of preliminary objection. Learned counsel for the appellants submitted that paragraph 4 (1) (c) of the 1st schedule to the Electoral Act does not state the procedure for stating the scores of candidates who took part in an election. He referred to Form TF001 and contended that it does not contain any directive, specific or implied, that the scores of all the candidates should be stated on the pages of the petition. He submitted that paragraph 4 (1) (c) is therefore open and permits the petitioner to adopt any acceptable method or rules of pleading. He relied on the case of Magaji vs Balat & Ors. (2004) 8 NWLR (876) 449 at 476 D-G. He submitted that the power of the lower Tribunal to dismiss a petition that is not in conformity with paragraph 4 (1) (c) of the 1st schedule of the Electoral Act is discretionary. He referred to the case of: PDP Vs Taiwo (2004) 8 NWLR (876) 656 at 670 G-H. He maintained that the appellants having pleaded and attached the 2nd respondent’s result sheets, Forms EC8A and EC8 All, which were not contested, it was a wrong exercise of the lower Tribunal’s discretion to have dismissed the petition in limine.

Learned counsel for the appellants conceded that the scores of the candidates were not typed on the pages of the petition. He however contended that paragraph 4 (1) (c) of the 1st Schedule requires a petitioner to plead the scores of the candidates in line with the rules and principles governing pleadings. He further submitted that the essence of pleadings is primarily to settle the issues to be tried and where a document is pleaded, it may only be used for the purpose for which it is pleaded. He cited the cases of: Agbodike Vs Onyekaba (2001) All FWLR (330) 1041 at 1057 ratio 16. He submitted that a document attached to pleadings forms part of the pleadings and that a Tribunal is entitled to read the terms of the documents into the pleadings even though not reproduced verbatim in the pleadings. He cited the following cases in support of this submission: Nigerbrass Shipping Line Ltd. & Anor Vs Aluminium Extrusion Industries Ltd. (1994) 4 NWLR (341) 733 at 737 ratio 7: Boothia Maritime Inc. & Ors. Vs Fareast Mercantile Go. Ltd. (2001) 6 NWCQR 99 at 102 ratios 3 & 4: A.A. Salaudeen Vs M.T. Mamman (2000) 14 NWLR (686) 63 at 68 ratio 15: and Day William Hill (Park Lane) Ltd. (1949) 1 ALL ER 219

Learned counsel submitted that the appellants pleaded before the lower Tribunal that the 2nd respondent did not announce the valid result or any result of the Rivers West Senatorial Elections at all levels and that the 1st respondent was therefore unduly returned as the winner of the election. He submitted further that from the 2nd respondent’s result sheets, which were not in dispute, the appellant was the winner of the election and ought to have been returned by the 2nd respondent. He submitted that the best way to ascertain the scores of all the candidates who contested an election is by reference to the 2nd respondent’s unit result sheets, Form EC8A or summary of results sheet, Form ECBE. He referred to the case of Dalhatu Vs Dikko (2005) All FWLR (242) 483 at 499 C-G.

He submitted that the cases of Magaji Vs Balat (supra) and Jemide Vs Harriman (2004) All FWLR (233) 1765 relied upon by the lower Tribunal were misapplied because in Magaji’s case, the scores of the candidates were not pleaded, while in Jemide’s case (supra) the pleaded scores were heavily contested. He submitted that the lower Tribunal ought to have accepted the scores as reflected in Forms EC8A and EC8All as if they had been reproduced verbatim and that the failure to do so has resulted in a miscarriage of justice.

Learned counsel for the appellants submitted that the relevant consideration of the court is the appellant’s claim and that in the instant case the relevant paragraphs of the petition are paragraphs 25, 26,29 and 33 thereof and Forms EC8A and EC8II attached thereto. He submitted that the appellants had pleaded the 2no respondent’s result sheets, which have been held to be the best evidence of scores at an election. He relied on: Yusuf Vs Obasanjo (2004) All FWLR (213) 1884 at 1904 – 1905 ratio 22. He contended that the petition ought to have been heard on its merits rather than being dismissed on the basis of technicalities. He relied on the case of: Waku Vs Adagba (2006) All FWLR (309) 1518 at 1522 ratio 9.

In reaction to the submissions of learned counsel for the appellants, learned counsel for the 1st respondent submitted that it is not in dispute that the scores of the candidates were not pleaded anywhere in the petition. He referred to the petition and the counter affidavit of one Uwana Jackson deposed to on 26/7/07 to the effect that despite representations made to the 2nd respondent demanding the results of the election, none were provided. He submitted that the lower Tribunal was therefore correct when it held that the appellants failed to comply with Section 4 (1) (c) of the 1st Schedule to the Electoral Act. He referred to: Ojong Vs Duke (2003) 14 NWLR (841) 581 at 611-612 ratios 2 & 3. He submitted that what must be pleaded are the official scores of the candidates as announced by the Electoral body and that any unofficial scores are unacceptable. For this submission he relied on the book, Election Laws and Practice by Afe Babalola; also the cases Learned counsel submitted that the documents attached to the pleadings do not constitute pleadings and that there is no nexus between the pleadings and the annexed documents. He submitted that it is trite that evidence not supported by pleadings goes to no issue. He relied on: Buhari Vs Obasanjo (1999) 5 NWLR (603) 364. He urged us to treat the documents annexed to the pleadings as strangers thereto. He submitted that the authorities cited by learned counsel for the appellants to the effect that documents attached to pleadings form part of the pleadings are inapplicable to the present case because there is no nexus between the documents and the pleadings. He submitted, without conceding, that even if the documents could be said to form part of the pleadings, they do not constitute the scores of the candidates but are the unit results of the political parties, which is contrary to the intendment of the Electoral Act. Learned counsel also distinguished the case of PDP Vs Taiwo (supra) relied on by learned counsel for the appellants regarding whether compliance with paragraph 4 (1) (c) is mandatory on the ground that in that case there was substantial compliance with the provisions of the Electoral Act whereas in the instant case there was no compliance at all.

Learned counsel submitted that election petition proceedings are unique and for which special provisions have been made. He submitted that this Court and the Supreme Court have held that the slightest default in complying with relevant procedural steps, which could otherwise be cured or waived in ordinary proceedings, could result in fatal consequences to the petition. He cited the cases of: Ogu Vs Ekweremadu & Ors. (2006) 1 NWLR (961) 255 ratio 1: Buhari Vs Yusuf (2003) 14 NWLR (841) 446: Abubakar Vs INEC (2004) 1 NWLR (854) 207: and Samano Vs Anka (2000) 1 NWLR (640) 283. He urged us to resolve the only issue against the appellants.

Learned counsel for the 2nd – 4tn respondents, in his brief of argument submitted that the decision of the lower Tribunal dismissing the petition for non compliance with paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act was correct and supported by the following authorities: Ojong Vs Duke (supra) and Magaji Vs Balat (supra).

On the appellants’ contention that documents attached to pleadings are part of the pleadings and the authorities cited in support thereof, learned counsel submitted that the contention is misconceived and the authorities not apposite to the present case. He submitted that the authorities are to the effect that documents pleaded or referred to in the pleadings are part of the pleadings. He maintained that in the instant case the appellants did not specifically plead or refer to the documents filed along with the petition as containing the scores of candidates in the election. He submitted, without conceding, that even if the documents could be construed as part of the pleading, the documents, which are Unit Result Sheets, do not contain the scores of the candidates who contested the election but the alleged scores of the parties.

On the contention that the provisions of paragraph 4 (1) (c) are not mandatory and reliance on the case of PDP Vs Taiwo (supra), learned counsel submitted that Taiwo’s case is distinguishable from the present case because in that case the court found that there was substantial compliance with the provisions of paragraph 4 (1) (c) because some of the scores of the candidates were stated and also that the scores of the candidates were not in issue in that case. He noted that in the instant case no scores were pleaded and therefore there was complete non compliance with the provisions.

On the need to comply strictly with the laid down procedures for election petition matters he cited the case of Buhari Vs Yusuf (2003) 14 NWLR (841) 446 at 536 ratio 1.

He submitted that the issue of whether or not the provisions of paragraph 4(1)(C) are mandatory is a new issue being raised for the first time on appeal without leave. He urged us to discountenance it and to strike out issue no. 1 wherein competent and incompetent issues were argued together.

In reply to the submissions of learned counsel for the 1st respondent, learned counsel for the appellants contended that the appellants in their counter affidavit did not concede that they did not plead the scores of the candidates. He argued that having regard to the contention of the appellants that upon the valid results before the 2nd respondent, as opposed to the announced results, the appellants scored the highest votes, the lower Tribunal ought to have heard the petition on its merits. He maintained that the scores of the candidates were pleaded in paragraphs 29, 31, 32 and 33 of their petition.

In reply to the submissions of learned counsel for the 2nd – 4th respondents, learned counsel for the appellants maintained that the unit results and summary of results were pleaded in paragraphs 21, 25 and 33 of the petition and that the documents therefore form part of the pleading and are relevant to the appellants’ case. He submitted that the submission of learned counsel to the effect that the documents annexed to the pleadings do not contain the scores of the candidates who contested the election was not raised at the lower Tribunal as the 2nd – 4th respondents did not file a reply to the petition or depose to any facts in this regard. He submitted that this further demonstrates why the petition ought to have been heard on its merits.

On the issue of whether the provisions of paragraph 4 (1) (c) are mandatory or not, he submitted that it is not a new issue as it was raised suo motu by the lower Tribunal. He urged us to discountenance the objection on the ground that it is incompetent.

The principles governing the interpretation of statutes are well settled. Where the words of the statute are precise and unambiguous they must be given their natural and ordinary meaning. The words of the statute best declare the intention of the lawmaker. See: Ibrahim Vs Barde (1996) 9 NWLR (474) Vs Udom (1990) A.N.L.R. 191. However it is also trite that in order to meaningfully construe the provisions of a section in a statute it should not be considered in isolation. In certain circumstances it is necessary to consider other related or relevant provisions of the statute to determine the intention of the legislature.

In considering the sole issue for determination in this appeal it is necessary to examine the provisions of paragraph 4 (1) (c) of the 1st schedule to the Electoral Act 2006 which provides:

4. (1) “An election petition under this Act shall (c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election.”

It is evident that from the clear and unambiguous words used in paragraph 4(1) (c) above, for a petition to be competent one of the statutory requirements is that the scores of the candidates must be stated. Learned counsel for the appellants has argued that the section does not lay down a procedure for stating the scores and therefore a petitioner has a discretion to adopt any acceptable method or rules of pleading.

The verb “to state” is defined in Chambers 21st Century Dictionary (Revised Edition) as “to express clearly either in written or spoken form”. In the present con it means that the scores of the candidates must be clearly discernible from the body of the petition. In other words the scores of the candidates must be pleaded. Pleadings constitute the facts upon which a party relies in support of the claim that he asserts. They are usually expressed as statements of fact in numbered paragraphs. In my humble view the legal requirement is clear and the normal rules of pleadings should apply. There is no need for a procedure to be spelt out in the schedule as to how the scores of candidates should be stated. A careful examination of the petition would determine whether or not the scores were pleaded as required by paragraph 4(1) (c).

In this regard, learned counsel for the appellants referred us to paragraphs 7, 23, 25, 26, 29 and 33 of the petition. I am of the view that paragraphs 6 and 22 are also relevant. The paragraphs read as follows:

6. “1st petitioner is stating that he ought to have been returned as elected in the April 28, 2007 polls or the Senatorial bi-election in Rivers West District but for the manipulations of the 2nd respondent.
7. That on April 28 2007, result sheets were never delivered with other materials and that no election results were entered into any sheets at the polling centres nor were any results sheets signed by various party agents of PDP or various parties where there was no semblance of election.
8. Petitioner states further that despite above the 1st respondent was allegedly declared winner by polling a majority of lawful votes cast at the election.
9. That in fact, days before the declaration of result by 2nd respondent after the bi-election on April 29, 2007 the Vanguard newspaper had caused to be published on the front page of Tuesday April 24, 2007 that PDP won all the three (3) Senatorial elections in Rivers State.

The said Vanguard publication is hereby pleaded and same shall be founded upon in evidence.

24. Petitioner wonders how an election yet to be conducted on April 28 2007 is announced four days (April 24th, 2007) before the same election was conducted.
25. Petitioner also states that the election was conducted with the outmost (sic) recklessness yet from the few results sheets sent to the petitioner after letters had been written to the 2nd respondent to produce same, the petitioner made outstanding performances in ward six see Senatorial unit result sheets from Ahoada East which is hereby pleaded namely …[32 polling units listed].

From the above result sheets, it can be seen that the 1st respondent (sic) made a landslide victory in the above units where credible elections were held and therefore the 1st respondent was not and could not have been duly elected and returned.

26. That the votes credited to the 1st respondent is (sic) not derived from the votes cast by the electorate as apart from Ahoada East where elections was (sic) held in the Rivers West and going by the result sheet, the 1st petitioner is the winner of that election and ought to have been returned.
27. That no results were announced at the polling units ward collation centres, 1st petitioner requires strict prove (sic) if 2nd respondent has anything to the contrary.
28. That the petitioner will at the trial rely on all documents pleaded as well as other documents and guidelines by INEC.” (Emphasis supplied)

From the paragraphs reproduced above, and indeed a perusal of the entire pleadings, there is no doubt that no scores of any candidates, including the 1st petitioner were pleaded. The reason for this is stated in paragraph 7 above. That no results sheets were delivered and no election results were entered at any of the polling centres. However it is averred in paragraph 22 that the 1st respondent was declared the winner by polling a majority of the votes cast. In paragraph 25 it is averred that some result sheets were made available, while in paragraph 26 reference is made to “votes credited to the 1st respondent.”

These votes are not pleaded. What the appellants rely on as containing the scores of the candidates are the Forms EC8A and EC8A II (unit result sheets) in respect of Ahoada East Local Government filed along with the petition and wherein the 1st appellant contends that he secured a landslide victory.

This court has had two approaches to the issue of compliance with the provisions of paragraph 4(1) (c) of the Electoral Act. See: Dickson Vs Balat (2004) ALL FWLR (215) 270 at 290 – 291 B-C, One approach is to construe the provisions as being mandatory and requiring strict compliance.

See: Ojong Vs Duke (2003) 14 NWLR (841) 581. It is however the law as stated earlier that in construing the provisions of a statute, the sections should not be read in isolation but in conjunction with other provisions to arrive at a proper understanding of the intention of the law makers. See: PDP Vs Taiwo (2004) 8 NWLR (876) 656 at 676 D-F. Paragraph 4 (6) provides as follows:

“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.”

Thus, a combined reading of paragraph 4(1) (c) with paragraph 4 (6) reveals that while a petitioner is expected to comply with the provisions of paragraph 4 (1) it is not in every instance of non compliance that the petition would be struck out for being defective. This is in keeping with the attitude of the Court to do substantial rather than technical justice, particularly in electoral matters, which are sui generis and periodical in nature. In certain cases the Court has held the petition to be competent where there is substantial compliance with the provisions. For instance, this Court has held in a number of decisions that failure to state the scores of candidates in an election would not be fatal to the petition where the scores are not relevant to the issues for determination. An example would be where the ground of the petition is that the person returned as elected was not qualified to contest the election. See: Oworu Vs INEC (1999) 10 NWLR (622) 201: Ogbeide Vs Osula (2004) ALL FWLR (191) 1622: Osigwelem Vs INEC & Ors. (unreported) CA/PH/EPT/369/2007 delivered on 31/1/08.

The appellants failed to state the grounds upon which the petition was brought in the body of the petition. In order to determine whether the scores of the candidates are relevant to the issues for determination in the petition it is therefore necessary to consider the reliefs sought. These can be found at pages 7 – 8 of the record. They have been set out earlier in this judgment. However for ease of reference they are repeated hereunder:

1. “A declaration that by the design of the 2nd, 3rd and 4th respondent (sic), the 1st petitioner’s supporters and electorates were prevented from casting their votes for the 1st petitioner in the April 28, 2007 bi-election as 1st petitioner’s party name logo and inscription were not provided on the ballot papers and that no elections were conducted in several wards in the District.
2. A declaration that the purported declaration of 1st respondent by the 2nd, 3rd and 4th respondent (sic) as the duly elected SENATOR for the Rivers West Senatorial District is null and void.
3. A declaration that the 1st petitioner having scored the highest number of legitimate and lawful votes cast at the Senatorial election in Rivers West Senatorial District held on April 28, 2007 be declared the winner and returned as such.
4. A perpetual injunction restraining 1st respondent from parading himself as the duly elected SENATOR from the Rivers West Senatorial District in the April 28, 2007 election.” (Emphasis supplied).

From the reliefs set out above it is quite clear that the main ground of the petition is that the 1st respondent was not duly elected by a majority of the lawful votes cast at the election and that the 1st appellant should be declared the winner. The scores of the candidates are certainly relevant to the issue for determination in the petition. It is therefore incumbent on him to plead the scores of the candidates who contested the election.

The rationale for this was stated in the case of: Dickson Vs Balat (supra) at 301 F-G per Salami, JCA with reference to the requirement in paragraph 4(1) (c) of the Electoral Act 2002, which is in pari materia with Section (1) (c) of the Electoral Act 2006 thus:

“The purpose of this requirement, to my mind, respectfully is not academic. It may not be unconnected with the provisions of sub paragraph 3 of the same paragraph, which permits the tribunal to return another candidate in event of a successful election petition. The tribunal or court would be armstrung (sic) where, as in the circumstances of this petition, necessary or adequate data are not supplied or placed before the tribunal or court.”

In the instant case, as observed earlier, the main relief sought by the appellants before the lower tribunal was a declaration that the 1st appellant, having scored a majority of the lawful votes cast at the election, be returned as the winner.

In the absence of the pleading of any scores whatsoever, the appellants have urged us to deem as part of the pleadings the exhibits attached to the petition. The scores that a petitioner is required to plead in compliance with paragraph 4 (1) (c) in respect of the votes cast at an election are the scores of the candidates and not the scores of their political parties. See: Awuse Vs Odili (2004) 8 NWLR (876) 481 at 542 C. There is nowhere in the documents attached to the petition that the scores of the candidates are stated. Not only are Forms EC8A and ECSA II which were filed along with the petition and referred to in paragraph 25 thereof the unit result sheets in respect of political parties, they are in respect of one ward alone (ward six in Ahoada East Local Government) where the 1st appellant claimed to have secured a landslide victory.

Learned counsel for the appellants contended that the issue as to whether or not the annexed documents contain the scores of the candidates is a new issue being raised for the first time before this court by learned counsel for the 2nd-4th respondents without prior leave being obtained. This contention is misconstrued as in their written reply in opposition to the 1st respondent’s preliminary objection at page 184 of the record, it was argued on their behalf that the scores as stated in forms EC8A and EC8A II attached to the petition constitute substantial compliance with paragraph 4 (1) (c ). It will be recalled that the preliminary objections of the 1st and 2nd – 4th respondents were consolidated.

Having referred to the declaration of the 1st respondent as the winner of the election in paragraph 22 of the petition and votes credited to him in paragraph 26, the votes by which he was declared winner or the votes credited to him ought to have been pleaded as well as the votes declared in respect of the 1st appellant himself. I agree with learned counsel for the respective respondents that the exhibits filed along with the petition have no nexus with the scores of the candidates at the election and therefore cannot be deemed to be part of the petition for the purpose of pleading the scores of the candidates at the election in compliance with paragraph 4 (1) (c).

The result of all that I have said is that the appellants having failed to comply with paragraph 4(1) (c) of the 1st Schedule to the Electoral Act 2006 and having regard to the fact that they are seeking an order that the 1st appellant be declared the winner of the majority of lawful votes cast at the election, the non compliance was fatal to the petition. I am therefore of the view that the order of the lower Tribunal dismissing the petition for being incompetent was in order.

I therefore resolve the sole issue for determination in this appeal against the appellants. The appeal is accordingly dismissed. The ruling of the lower Tribunal delivered on 11th September, 2007 is affirmed. Costs of N30, 000.00 are awarded in favour of the 1st respondent.

---

Other Citations: (2008)LCN/2723(CA)