Hamisu Salisu Kore & Anor V. Independent National Electoral Commission & Ors (2008)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an appeal against the ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting in Kano in petition No. EPT/KNS/HR/31/2007 wherein the Tribunal struck out the petition of the appellant in limine on the 4th day of September, 2007 (see pages 416 – 435) of the record. The 1st appellant/petitioner was the candidate of the 2nd appellant/petitioner, All Nigeria Peoples’ Party (ANPP) in the election into Doguwa/Tudun Wada Federal Constituency of Kano State into the House of Representatives while the 3rd respondent was the candidate for the Peoples Democratic Party (PDP) in the said election conducted by the 1st respondent, INEC.
At the end of the election, the 3rd respondent was declared the winner of the election. Unhappy with the declaration and return of the 3rd respondent as the winner of the election, the appellants filed a petition dated and filed on 21/5/2007 containing fourteen paragraphs at pages 2a – 5 of the record. The ground of the petition is as follows:-
“The 3rd Respondent was not duly elected by a majority of lawful votes cast at the election.”
“WHEREOF Your Petitioners pray that it be determined:
i. That the Petitioner is the candidate duly elected into the House of Representatives for the Doguwa/Tudun Wada Federal Constituency of Kano State at the National Assembly Election which took place on Saturday the 21st day of April, 2007.
ii. That the 3rd Respondent was not elected by the majority of the lawful votes cast at the said election as declared by the 1st and 2nd Respondents.
iii. That the purported declaration by the 1st and 2nd Respondents of the 3rd Respondent as the elected candidate into the House of Representatives for the Doguwa/Tudun Wada Federal Constituency of Kano State is ultra vires the Electoral Law, and is in the premise null and void and of no legal effect.
iv. That the purported declaration by the 1st and 2nd Respondents of the 3rd Respondent as the elected candidate into the House of Representatives for the Doguwa/Tudun Wada Federal Constituency of Kano State be, and is set aside.”
But before the hearing of the petition, the 3rd respondent/ applicant filed a motion on notice dated and filed on 27/6/2007, praying for:-
“(1) An order striking out the Petition filed herein by the Petitioners/ Respondents, Petition No. EPT/KN/HR/31/007, for being fundamentally defective, invalid and incompetent.
(2) And such further or other Orders as this Honourable Tribunal may deem fit to make in the circumstance of this case.”
The motion was supported by a six paragraph affidavit deposed to by one Miss Clementina Adeola Fakoya of No.88, Tafawa Balewa Road, Kano, a legal Practitioner in the chambers of O.E.B. Offiong & Co, the Legal firm representing the 3rd respondent/applicant. The paragraphs are as follows:
“1. That I am a Legal Practitioner in the Firm of O.E.B. OFFIONG & CO., whose O.E.B. OFFIONG ESQ is the Principal Counsel handling the defence of the 3rd Respondent/ Applicant in this Petition in conjunction with the other legal Practitioners in the firm including my humble self.
- That I have seen a certified true copy of the Petition filed on 21/5/2007 which was served on the 3rd Respondent/ Applicant herein. A photocopy of the said Petition (without the exhibits) is attached herewith and marked as Exhibit C.A.F. 1.
- That I have examined the Petition and no where does it state clearly, positively and distinctly the votes scored by the candidates in a paragraph which confines itself to that issue.
- That the Petition does not also state clearly, positively and distinctly the person returned as the winner of the election in any paragraph that confines itself to that assertion.
- That the Petition in this case has failed to state a fundamental requirement and is invalid.
- That I make this affidavit in good faith believing same to be true and correct to the best of my information, knowledge and belief and in accordance with the Oaths Act.”
A written amended submission dated 6/8/07 in opposition to the 3rd respondent’s/ applicant’s motion on notice dated 27/6/07 (See pages 301 – 308) of the record was filed and the 3rd respondent’s counsel with the leave filed an amended reply to the written address filed by petitioners/appellants dated 9/8/07 at pages 324 – 327 of the record. The motion was eventually heard and the ruling of Tribunal delivered on 4/9/2007.
The Tribunal held at page 434 of the record as follows:-
“On issue II, which is the consequences of failure to comply with the provision of the said paragraph 4(1)(c) (supra) with respect to stating the scores of the candidates at the election and the person returned as the winner of the election. Much as sub-paragraph (6) of paragraph 4 (supra) gives an Election Tribunal the discretion either to strike out a petition or allow a petition that is in breach of the said paragraph 4(1) (c) (supra), we are of the view that the failure or non compliance here is of such a nature that goes to the root of the election petition.
A petition that fails to state the scores of the candidates at the election and the person returned as the winner of the election in our view has lost all the essential ingredients of an election petition and therefore the Tribunal is left with no other option than to strike it out. To do otherwise will be a total disregard to the Electoral Act and decided authorities of our Appellate Courts.
In conclusion, the application of the 3rd Respondent/ Applicant praying the Tribunal to strike out the petition filed by the Petitioners/Respondents is meritorious. It is upheld and accordingly the petition is hereby struck out.”
Aggrieved and dissatisfied with the ruling of the Tribunal, the applicant filed a notice of appeal dated and filed on 20/9/2007 containing five grounds of appeal at pages 436 – 439 of the record.
Briefs of argument were subsequently filed and exchanged between the parties. The appellants’ brief is dated and filed on 26/10/2007, the 1st and 2nd respondents brief is dated and filed on 7/11/2007 while the 3rd respondent’s brief is dated 16/11/07 was deemed properly filed and served by order of this Court made on 3/12/07. The appellants’ reply brief is dated and filed on 17/12/07.
Learned counsel for the appellants in the appellants’ brief formulated three issues for determination in this appeal but withdrew issue”No.2 which was struck out along with the submission on the said issue. The two remaining issues are as follows:-
“1. Having regard to the legal ground (and the facts) upon which the Appellants’ anchored their challenge to the return of the 3rd Respondent, was the Tribunal right in holding that the scores of the candidates who contested the election, as well as the person returned as winner of the said election, were not stated in the petition? (Ground 2 & 3)
- Whether the decision of the Honourable Tribunal in regard reflects a dispassionate consideration of the issues properly raised and canvassed by the parties in respect of the application leading to the Ruling?” (Grounds 4 & 5).
In the 1st and 2nd respondents’ brief, three issues were distilled for determination in this appeal. The issues are as follows:-
“1. Having regard to the legal ground (and the facts) upon which the Appellants’ anchored their challenge to the return of the 3rd Respondent, was the Tribunal right in holding that the scores of the candidates who contested the election, as well as the person returned as winner of the said election, were not stated in the petition?
- In any event, whether as a condition for its competence, the provisions of paragraph 4(1)(c) of the first schedule to the Electoral Act 2006 impose a legal obligation to state in the petition the official scores by which a candidate is declared the winner of the Election challenged?
- Whether the decision of Honourable Tribunal in regard reflects a dispassionate consideration of the issues properly raised and canvassed by the parties in respect of the application leading to the Ruling?”
The 3rd respondent at page 6 of the 3rd respondent’s brief formulated the following issues:-
“1. Whether or not the Lower Court was right in striking out the Appellants’ petition for non-compliance with the Provisions of Paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006 for failure of the Appellants to state the scores of the candidates that contested the election and the person returned as the winner of the said election? This covers Grounds 1, 2 and 3 of the Grounds of Appeal.
- Whether or not the Lower Court deviated from the issues raised and argued by the Parties before it in coming to its decision on the 3rd Respondent’s application before it to strike out the Petition? This covers Grounds 4 and 5 of the Grounds of Appeal.”
After studying the issues formulated by the parties in this appeal, I am of the view that issue No.1 formulated by the 3rd respondent is more apt and sufficient for the determination of this appeal. I therefore adopt the said issue for the determination of this appeal.
Learned counsel for the appellants, C. Ogbekene, Esq, commenced his submission by referring to Sections 221 of the 1999 Constitution, Sections 32(1), 39, 40, 41, 47, 63(1) and 64(1) of the Electoral Act, 2006 and submitted that when the sections are read and related to each other, it is apparent that the procedure for the election and return of a candidate under the 2006 Electoral Act is schematic and graduated and that a named political contestant an election through its duly nominated candidate. That it follows as a matter of logical conclusion and common sense reasoning that any vote ascribed to the sponsoring political party cannot, but be for the sponsored candidate.
He stated that in relation to the available fact of this case, it is submitted that the Tribunal was patently in error, and stretched a simple matter too for when it held that the scores ascribed to the political parties do not qualify as the scores of the candidates under paragraph 4(1) (c) of the 1st Schedule to the Electoral Act, 2006. He referred to the case of RT. HON. CHIBUIKE ROTIMI AMECHI V. INEC & 2 ORS. (unreported).
In conclusion learned counsel for the appellants urged the court to allow the appeal.
Learned counsel for the 1st and 2nd respondents, Peter O. Odia, Esq. first referred to the petition of the Petitioners/Appellants at pages 2A- 32 of the record of proceedings which he said does not show the scores of the candidates at the election. Reference was also made to pages 431 – 432 of the ruling.
It is argued by the learned counsel for the 1st and 2nd respondents that taking into consideration the contents of page 16 of the record, where the issues were stated and the ruling referred the 1st and 2nd respondents are in full agreement with the ruling of the Tribunal. Pointing out that the failure to state the scores is not a mere irregularity as it goes to the root of the petition and is incurable. Furthermore, it is submitted that the appellants’ argument in their brief that the Tribunal ought to have held that the scores ascribed to the political parties, qualify as the scores of the candidates, is misconceived. He stated that paragraph 4(1)(c) of the 1st Schedule to the electoral Act, 2006, is clear when it states, inter alia that an election petition under this Act should state the holding of the election, the scores of the candidate and the person returned as the winner of the election. He emphasised that to construe the said paragraph that the stating of the scores of the political parties in the election is the same as stating the scores of the candidates would amount to importing a technical form of construction. Reference was made to FAWEHINMI V. I.G.P. (2002) 7 NWLR (PT.767) 606 at 678 on the proper approach to the interpretation of clear words of a statute is to read them in their simple grammatical and ordinary meaning rather than to look further because it is what prima facie gives them their most reliable meaning.
Learned Counsel for the 1st and 2nd respondents stated that the case of AMECHI V. INEC referred by the learned counsel for the appellant is inapplicable to the appeal under consideration as the facts are not the same. Reference was made to the ruling of the Tribunal at page 433 by the learned counsel for the 1st and 2nd respondents who stated that the Tribunal was right in striking out the petition for being incompetent and urged the court to dismiss the appeal.
In response to the submission of the learned counsel for the appellants, it is submitted by K.B. Olawoyin, Esq. for the 3rd respondent that the findings of the lower court that the appellants did not state the scores of the candidates and the person returned as the winner is right and should be upheld by this Hon. Court. He further submitted that the decision of the lower court regarding the consequence of the appellants’ failure to state the scores of the candidates that contested the election and the person returned as the winner of the election renders the petition incompetent and should be struck out.
Reference was made to the provisions of paragraph 4(1)( c), 4(2) and 4(6) of the 1st Schedule to the Electoral Act, 2006, by the learned counsel for the 3rd respondent who submitted that going by the provisions of paragraph 4(1)(c) there are three distinct and major requirements that a petitioner in this case the appellants must state in the petition, they are (i) That the election was held; (ii) the scores of the candidates that contested the election and (iii) the person returned as the winner of the election. See DR. NNAMDI ERIOBUNA & ORS. v. IKECHUKWU OBIORA (1999) 8 NWLR (Pt.616) 622 at 638 paras F – H; CHRISTOPHER EZEOBI v. LAWRENCE N. EZEKA (1989) 1 NWLR (PT.98) 478 at 489 and ABIMBOLA V. ADEROJU (1999) 5 NWLR (PT.601) 100 at 108 – 109 and several other cases cited in the 3rd respondent’s brief.
In conclusion, learned counsel for the 3rd respondent urged us to answer the issue in favour of the 3rd respondent against the appellants and dismiss the appeal.
As can be seen from the submission of the counsel to the parties in this appeal, the only issue in contention between the parties in this appeal is centered on the interpretation of the provisions of paragraph 4(1) (c) of the 1st Schedule to the Electoral Act, 2006.
According to the learned counsel for the appellants it should be taken that any votes ascribed to the sponsoring political party cannot be but for the sponsored candidate and that the Tribunal was potently in error, and stretched a simple matter of scores too far in holding that there was non compliance with the provisions of the Electoral Act, 2006. On the other hand, counsel to the two sets of respondents hold a contrary view. They both contended that the provision of paragraph 4(1)(c) of the Electoral Act, 2006, is mandatory and that failure to comply with the said provision renders a petition incompetent.
Paragraph 4(1) (c) of the 1st Schedule to the Electoral Act, 2006, 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.”
From the provisions of paragraph 4(1)(c) reproduced above, there are three distinct and major requirements that a petitioner in this case the appellants must state in a petition viz (i) That the election was held, (ii) the scores of the candidates that contested the election and (iii) the person returned as the winner of the election.
It appears from the provision of paragraph 4(1) (c) of the 1st Schedule to the Electoral Act, 2006, that even where a petitioner has scores different from the ones officially declared by the Electoral body which led to the declaration of the winner, the petitioner is bound to state the official scores and thereafter state the scores which he believes are correct. This has always been the interpretation given to paragraph 4(1) (c) of the 1st Schedule to the Electoral Act, 2006.
In ERIOBUNA V. OBIDRAH (1999) 8 NWLR (PT.616) 622 at 638, Tobi, JCA (as he then was) stated as follows:-
“As it is, the sub-paragraph provides three requirements: (a) that the election was held in this respect, the petitioner is expected to depose to the fact that the election was held and the date on which it was held. (b) The scores of the candidates who contested the election. Here, the petitioner is under a legal duty to indicate the official scores of INEC and not what he thinks or thought to be the scores. He can reserve what he thinks or thought should be the scores to any subsequent paragraph or paragraphs in the petition. All that paragraph 5(1) (c) requires is the raw official scores of INEC.”
Paragraph 5(1) (c) of Decree 5 of 1999 is in pari materia with paragraph 4(1) (c) of the 1st Schedule to the Electoral Act, 2006.
The person returned as the winner of the election. Again all that the petitioner is expected to state is the person effectively declared by INEC as the winner of the election.
I have examined the petitioners’ pleading several times and I was unable to find where the scores of the candidates and the person returned as the winner of the election was stated in accordance with the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006. The provisions of paragraph 4(1) (c) is mandatory and non compliance with the said provisions is fatal to the petition as the defect is incurable and has rendered the petition incompetent. See ENGINEER BONIFACE OBIBI NWOKO OFFOMAH V. CHIEF MIKE AJAEGBO (2000) 1 NWLR (Pt. 641) 498; at 504.
In the result, I hold that there is no merit whatsoever in this appeal which is hereby dismissed. The ruling delivered on 4th day of September, 2007 by the National Assembly Election Petition Tribunal, Kano State in petition No. EPT/KNS/HR/31/2007 is hereby affirmed by me.
I award costs assessed at N30, 000.00 to the 3rd Respondent.
Other Citations: (2008)LCN/2888(CA)
