Haruna a. Haruna V. Mallam Umaru Magaji & Anor (1999)
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MUNTAKA-COOMASSIE, J.C.A.
The appellant herein. Haruna A. Haruna, was the petitioner at the Governorship and Legislation Houses Election Tribunal holden at Birnin Kebbi.
The appellant was sponsored by the Peoples Democratic Party (PDP) to contest for election as member representing Jega Constituency in the Kebbi State House of Assembly at the election held nationwide on 9th January. 1999. The opponent or the appellant. Mallam Umaru Magaji, for the same elective position was sponsored by the All Peoples Party (APP).
After the collation and counting at the close of the election, the Independent National Electoral commission (INEC) through the returning officer 2nd respondent returned the 1st respondent herein as duly elected member of the Kebbi State House of Assembly by a majority of 11.7.15 votes. The appellant was credited with the next highest votes of 7,497.
The appellant herein promptly filed an election petition challenging the return of the 1st respondent. The pleadings or the petitioner in that tribunal were not only lengthy but also verbose. There is no need for me to reproduce same here.
However, I consider it pertinent to reproduce hereunder the reliefs sought by the petitioner thus:-
i. A declaration that the 1st respondent is/was disqualified from being elected as member of Kebbi State House of Assembly by reason of having knowingly presented forged documents to the 2nd respondent, to wit: Jega Community Bank (Nig.) Ltd. letter of 23rd August, 1996. and the income tax clearance certificate No. ITCC 000667 dated 16th day of November, 1998 in contravention of section 19 of Decree No.3 of 1999;
ii. a declaration that the 1st respondent was not qualified to contest and be elected member of the Kebbi State House of Assembly by reason or non-payment of tax at all for the three years preceding the year of election;
iii. a declaration that by reason of the lack of qualification or disqualification above all votes cast in favour of the 1st respondent at the election of 9th January, 1999 are unlawful, null, void and of no effect;
iv. a declaration that the petitioner was the only candidate at the said election and by virtue of the 7,497 votes cast in his favour at the election is the person duly elected and ought to be returned as member representing Jega Constituency in the Kebbi State House of Assembly;
v. an order nullifying the election of the 1st respondent and a declaration that the petitioner is the person duly elected at the said election;
vi. and such further orders as this honourable tribunal may deem fit to make in the circumstances.
The respondents then July filed the memorandum appearance and filed their replies. Hearing then commenced in earnest on 3rd March, 1999. Two witnesses testified and some exhibits were tendered and admitted as A-A13.
On the 8th March, 1999 the 1st respondent through his counsel raised an objection to the effect that the petitioner did not comply with the provision or the Decree in stating the address and the name of the occupier. Failure to do so, according to the 1st respondent’s counsel, is fatal. He submitted that the petition is therefore in competent. Consequently, the tribunal has no jurisdiction to hear the petition. He relied on the following authorities, namely:-
- Kalu v. State (1998) 11-12 SCNJ 1; (1998) 13 NWLR (Pt.583)531
- Abdulkadir v. Musa (1999) 1 NWLR (Pt.587) page 348 at 356-357; and
- general Electric Co. v. Akande (1999) 1 NWLR (Pt.588) page 532,
He then urged the tribunal to strike out the said petition.
The appellant’s counsel urged the tribunal to overrule the objection as it was too late in the day for the respondent to raise an objection for service. They should be taken as waiving their right to object to an irregularity. He further contended that the appellant has participated in the hearing and that paragraph 50(2) of the Schedule 6 to the Decree applies to defeat this objection.
The tribunal in a considered ruling on 10th March, 1999 ruled that it has no jurisdiction to hear the petition which is non-existent and struck same out.
Aggrieved by the decision of the tribunal, the appellant appealed to this court and filed notice of appeal containing two grounds of appeal shown of their particulars, the grounds read:-
- “The Governorship and Legislative Election Petition Tribunal of Kebbi State erred in law when it sustained the belated objection of the 1st respondent and struck out the applicant’s petition before it on the grounds that an address for service and name of its occupier was not stated at the foot of the petition. (Particulars supplied)
- The tribunal below misdirected itself when it held that the petition is to be regarded as not having been filed at all unless the tribunal otherwise orders.’ In other words until the tribunal otherwise orders the petition is to be regarded as non-existent. The petition is only to be regarded as existing: if the tribunal so orders, but the tribunal has not so ordered because the petitioner has not requested it by way of a motion giving acceptable and cogent reasons why he failed to comply with the requirement of paragraph 5(4) …”
In compliance with the Practice Direction and the rules of this court briefs of argument were filed and exchanged. The appellant’s brief dated 20th March, 1999 was filed on the same date. In it one issue was formulated thus:
Whether the lower tribunal was right in striking out the petition having regard to the provisions of paragraph 50(2) or Schedule 6 to Decree No. 3 of 1999.”
The 1st respondent in turn, their brief on 22nd March, 1999. Two issues were formulated therein as follows:-
- “Whether or not the petition of the appellant which did not comply with the provision of paragraph 5(4) of Schedule 6 to Decree 3 of 1999 is competent.”
ii. Whether or not a respondent who has entered an unconditional appearance and has taken steps into the: proceedings of an election petition is precluded, by virtue of paragraph 50(2) and (4) of Schedule 6 to Decree 3 of 1999, from challenging the competence of the petition subsequently,”
The learned counsel for the 2nd and 3rd respondents in turn adopted the single issue formulated by the appellant.
At the hearing of the appeal before us on 23rd March, 1999 all the three learned counsel relied and adopted their respective briefs.
Counsel to the 1st respondent after adoption of their brief added that failure of the appellant to leave his names and address and the name of the occupier is fatal. He relied on an unreported decision of this court just delivered, namely: CA/K/EPGT/2/99 between Col. Muhammadu Bello Kaliel (rtd) and others v. Alhaji Mohammed Adamu, Ahem and II others [now reported in (1999) 4 NWLR (Pt.597) 139] delivered on 23rd March, 1999.
Learned counsel for the appellant in a brief reply contended that in the above case cited, an objection was raised in limine i.e. before the trial. While it is not the case in the appeal at hand. He submitted that where the objection is not raised in limine as is the case in this appeal, then the provisions of paragraph 50(2) of Schedule 6 supra comes to play.
The whole appeal in my view revolves around the important requirements of the relevant Decree No.3 of 1999, namely, that each and every petitioner must leave at the foot of the election petition:-
“(a) all address of the petitioner for service: and
(b) the name of its occupiers’a6”
These two requirements must be read together and disjunctively too. The relevant provisions of paragraph 5(4) of Schedule 6 of Decree No.3 of 1999 read thus:-
“At the fool of the election petition there shall also be stated an address of the petitioner for service within live kilometers of a post office in the Judicial Division, and the name of its occupiers, at which address documents intended for the petitioner may be left.”
It is clear that the petitioner at page 9 of the attempted to comply with the above requirement of the Decree by providing his address for service within the judicial division as follows:-
“c/o Amana Law Chamber
No……….
Murtala Mohammed Way/Road,
Birnin Kebbi.”
As can be glaringly seen that only the address of the petitioner was provided.
Even that no number of that address was supplied. It is clear also that the name of the occupier thereat has not been stated. Looking at the record of proceedings and the submissions of all the counsel it is manifest, and agreed that the name of the occupier is missing.
The logical question to pause and answer is this. What is the effect of failure to comply with this seemingly peculiar requirement of the Decree 3 of 1999. Put differently is the requirements substantive or procedural. Are the requirements mandatory or they just concern the form of the petition?
Learned counsel for the appellant submitted at page 3 of their brief, that “this sub-paragraph goes to the form of the petition which is procedural. It is not a substantive section of the Decree itself.”
Learned counsel further submitted that non-compliance with the provisions of paragraph 5(4) of Schedule 6 to Decree No.3 of 1999 is a mere irregularity which can be waived. He relied on the case of Ariori and others v. Elemo and other (1983) 1 SC 13; (1983) 1 SCNLR 1.
Learned counsel for the 1st respondent argued that the address given above is expected to be that or the petitioner which did not comply with paragraph 5(4) or Schedule 6 of Decree 3 of 1999. He further submitted that “failure to comply with the said provisions is not mere irregularity”. It is fatal and affects the competence of the petition and therefore the competence of the tribunal to hear it on the merits. He finally submits that the petition went to the tribunal without due process of the law. That condition precedent to the exercise of jurisdiction has not been fulfilled. He relied on section 130 of Decree No.3 of 1999 and the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 2 NSCC 374 at 379-380. He urged this court to h old that the tribunal had no jurisdiction to hear and determine the petition.
Learned counsel for the 2nd and 3rd respondents on this issue argued that there is no doubt that the appellant as a petitioner did not comply with the provisions of paragraph 5(4) of Schedule 6 to the Decree No, 3 of 1999. Therefore since no request has been made by the petitioner for the tribunal to order otherwise the Petition shall be deemed not to have been filed. The learned counsel finally submitted that the requirement relates to the competency of the petition. It is a fundamental issue the has is to which the petition stands and once the Petition is deemed not filed all that is placed on it will collapse. He then filed the cases of Ngelizuna v. Hinsi & Anor. (1965) NNLR 12 and Iyedufe v. Olokotun and another (1965) NNLR 26.
My Lords, this appeal raises a very important landmark in the annals of judicial history in this country. Whether in an attempt to do substantial justice to a given case, and in a running away from technicalities, the Court of Appeal can take a decision which will seemingly appear to be shutting out the door of justice against a party who failed to comply with certain provisions or the law. This is exactly what appears to be the case in this appeal. This court is required, as it were, to choose between being bound by the clear provisions of a statute and quest to do substantial justice. I say this, my Lords, because paragraph 5(4) of Schedule 6 to the Decree No. 3 of 1999 hereinafter referred to as “Schedule 6” is clear that two things and or requirements must exist before a petition takes off; namely
i. the petitioner must state at the foot or the election petition his address for service, and
ii. the name or the occupier must also be stated.
Where none of the requirements is forth coming or where one is available but the other requirement is missing, the petition shall be considered as non-existent.
Therefore, neither the Election Tribunal nor this court would have jurisdiction to entertain such a petition.
Paragraph 5(5) of Schedule 6 supra makes such petition incompetent and liable to be struck out. Paragraph 5(5) says:-
“If the address for service and its occupier are not stated as specified in sub-paragraph (4) of this paragraph, the petition shall be deemed not to hare been filed, unless the Election Tribunal otherwise orders. “
It is my view that the provision of Schedule 6 is quite dear that failure to state the occupier at the root of the petition is fatal to the petition. It will deny the tribunal competence and jurisdiction to hear the petition. In a situation where hearing commenced the tribunal must decline jurisdiction and strike out such petition. It is now a matter of jurisdiction. The statute stated that the tribunal can not assume jurisdiction whether justifiably or not. The question of trying or attempting to do substantial justice in such a situation does not arise. The provision in my view is mandatory, it goes to the roots or the issue.
The intention of the lawmakers vis-a-vis paragraph 5(5) of Schedule 6 to Decree No. 3 of 1999 is not difficult to discover. All courts, including this honourable court, must be bound by it. Similar issue arose in Supreme Court as to the issue of jurisdiction or the court and trying to do substantial justice in the case.
The Supreme Court in solving the problem took a stand thus:-
“Lord Atkin had this to say … It is quite true that their Lordships, as every other court, attempts to do substantial justice and to avoid technicalities, but their Lordships, like any other court, are abound by the statute law, and that event has occurred, then it is impossible for their Lordships or for any other court to have jurisdiction …’ It therefore also goes without saying that if a court lacks jurisdiction, the question of being substantial does not come into the show some defect of jurisdiction relates to embarking on the case and not in miscarriage in the course of it, or to the correction of decision,” See the Supreme Court case of Abdullahi v. Gaya & ors. (1992) 2 LRECN page 144 at 159
So it is clear to me that the provisions of paragraph 5(4) of Schedule 6 of the Decree No. 3 of 1999 stated above is mandatory and substantial and never procedural. Failure to comply with same is not to be regarded as a simple irregularity which can be waived by the conduct of the respondent or by the grace of the tribunal.
My Lords, it is manifest that the appellant as the petitioner in the tribunal railed to comply fully with the two requirements of the Law, such failure stripped of the tribunal jurisdiction to hear the petition. There is no way jurisdiction can be conferred on the tribunal which ab initio lacked one. It is fast becoming trite that jurisdiction cannot be conferred on a court or tribunal by counsel or by acquiescence.
This court cannot derogate and degenerate itself by converting itself to the court of trial despite the existence of section 16 of the Court of Appeal Act. It is a fact that we are not court of first instance or court of trial. We are by statute, an appellate court – Araka v. Ejeugwu. (1999) 2 NWLR (Pt.589) 107 at 118.
Having therefore considered the record of proceedings, decision of the election Tribunal, grounds of appeal, issues formulated by all the counsel in this appeal and the submissions thereof I hold that the tribunal below was right in declining jurisdiction when it discovered that the petitioner/appellant did not fully comply with paragraph 5(4) of Schedule 6 to the Decree No.3 of 1999. The tribunal was also right in striking out the petition in view of the provisions of section 137(3) of Decree No.3 of 1999. The issue of raising the objection in limine or not does not arise. The defect does not relate to form it is a fundamental one. It was incurably defective. It is only the discretion of the tribunal that could revive such petition.
I have scanned through the record of proceedings filed before us but could not lay my hands on place where the tribunal decided to exercise its discretion in favour of the petitioner. That being the case, whether or not the 1st respondent filed a conditional memorandum of appearance the fact remained that the appellant violently contravened an important mandatory provisions of Decree No.3 of 1999. That made the petition incompetent and the tribunal below was right to have struck out the petition. To do otherwise would make any subsequent actions of the tribunal null and void. That being the case. failure by the appellant to slate the name of the occupier at the foot of his petition makes the petition incompetent. -Iyedufe v. Olokotun (1965) NNLR 26 and Ngelizana v. Hindi supra and Enebi v. Yachim (1965) NNLR page 26. See also the unreported decision of this court delivered on 23/3/99 in suit No. CA/K/EPGT/2/99 per R. D. Muhammad. JCA. [now reported in (1999) 4 NWLR (Pt. 597) 139]
In the circumstances the appeal fails as was devoid of any merit. It is hereby dismissed. The decision of the Election Tribunal is hereby affirmed. The respondents are entitled to costs.
Three thousand naira (N3,000.00)costs is awarded to all the respondents.
Appeal dismissed.
Other Citations: (1999)LCN/0488(CA)
