Hon. Abdullahi K. Kamba & Anor V. Alh. Ibrahim Bawa & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
OLUDADE OLADAPO OBADINA, J.C.A.
This is an appeal against the decision of the National Assembly, Governorship and Legislative Houses Election Tribunal, sitting at Birnin Kebbi, Kebbi State, contained in its ruling, delivered on the 9th day of June, 2003, in petition No. NAS/KPT/KBS/06/03, striking out the petition. The appellants were the petitioners at the tribunal, while the respondents were the respondents.
The facts leading to this appeal are briefly as follows:-
On the 12th of April, 2003, the 5th respondent conducted election, into, amongst others, the House of Representatives for Arewa and Dandi Federal Constituency of Kebbi State. The 1st appellant contested the election under the platform of the 2nd appellant; while the 1st respondent also contested the election under the platform of the 2nd respondent. The 3rd and 4th respondents were officers and agents of the 5th respondent empowered by law to conduct the elections.
At the conclusion of the election, the 1st respondent won the election and was declared and returned as winner by the 3rd – 5th respondents. The petitioners were unhappy with the result and the return of the 1st respondent as the winner. The petitioners therefore filed a petition against the respondents in respect of the election.
The 1st and 2nd respondents filed a reply to the petition and gave a notice of preliminary objection to the petition. The 3rd – 5th respondents also filed a reply to the petition. They filed an application challenging the competence of the petition.
Before the same tribunal, the learned Counsel for the petitioners also had other petitions, namely – petitions Nos:
NAS/EPT/KBS/06/03; NAS/EPT/KBS/08/03;
NAS/EPT/KBS/09/03; NAS/EPT/KBS/10/03;
NAS/EPT/KBS/11/03.
The counsel Trial, the petitions were the same and similar preliminary objection on the same grounds were filed by counsel for the respondents in all the petitions.
On the 5/6/2003:, the preliminary objections filed in petition 13 No. NAS/EPT/KBS/06/03 were argued by counsel for the parties. Ruling was fixed for 9th of June, 2003. At the conclusion of arguments by learned Counsel for the parties, all the counsel agreed that the ruling in petition No. NAS/EPT/KBS/06/03 being reserved should be binding on all the other petitions Nos. NAS/EPT/KBS/07/03; NAS/EPT/KBS/08/03; NAS/EPT/KBT/09/03; NAS/EPT/KBS/10/03 and NAS/EPT/KBS/11/03.
On the 9th of June, 2003, the learned trial Tribunal delivered its ruling upholding the objection and struck out the petitions. It is against the said ruling that the appellants appealed to this court.
The appeals predicated on (4) four grounds of appeal. From the four (4) grounds of appeal, the appellants formulated three (3) issues for determination. The issues read as follows:-
“(1) Whether or not, from the facts and circumstances of the petition, it is legally proper for the trial tribunal to conclude that the decision in this petition No. NAS/EPT/KBS/06/03 should be binding on the five (5) other petition, this petition No. NAS/EPT/KBS/-7/03 inclusive.
(2) Whether or not, having regard to the circumstances of this case, the petition was filed Within the mandatory period of thirty days as required by section 32; (sic) of the Electoral Act, 2002.
(3) Whether or not, on proper construction of paragraph 3 of the First Schedule to the Electoral Act, 2002, it is legally correct to conclude as did the trial tribunal that the only recognizable way of determining when an election petition is presented is the date when Form TF 002 issued by the secretary of the tribunal is dated.”
Ground (1) one of the grounds of appeal was later withdrawn by the appellants and struck out by the court. The appeal was therefore based on grounds 2, 3 and 4 of the ‘grounds’ of appeal.
The 1st and 2nd respondents filed a notice of preliminary objection dated 1st day of December, 2003, against grounds 2, 3 and 4 of the grounds or appeal; on the grounds that the particulars of the grounds of appeal are argumentative, vague and narrative, contrary to the provisions of Order 3 rule 2(3) of the Court of Appeal Rules, and accordingly incompetent.
Without prejudice to the preliminary objection, should the preliminary objection fail, the 1st and 2nd respondents distilled three (3) issues from the three (3) grounds of appeal. The issues run as follows:-
“(i) Whether the petition having been presented on 15th May, 2003, was not caught by the limitation for the time of filing the petition under the Electoral Act, 2002.
(ii) Whether the parties having agreed to a procedure for the hearing of the petition can turn around to deny same after the ruling.
(iii) Whether the issuance of Form TF 002 by the secretary is not the only means of the determination of the presentation of the petition.”
The appellants filed appellants’ reply brief to the objection raised by the respondents, to the effect that there was no consent judgment in this case.
The primary objective of a preliminary objection is to terminate the proceedings at the stage the objection is raised – Okoi & Oths. v. Ibiang & Oth. (2002) 10 NWLR (Pt.776) 455 at 468. The court has a duty to decide on the objection before proceeding to consider the substantive issue. See Ahaneku & Ors. v. Ekeruo & Oths. (2002) 1 NWLR (Pt.748) 301 at 308. In the circumstance, I have to consider the preliminary objection first.
The first objection is against ground 2 of the appeal. Ground 2 of the appeal against which objection is being raised with the particulars read as follows:-
“The learned members of the trial tribunal erred in law, when they in their ruling dated 9th June, 2003, held as follows:-
‘This ruling is by the consent of Mr. Rickey Tarfa, SAN the 1st respondent’s counsel; Mr. Aminu, the petitioners’ counsel; and R. A. Sadik, counsel to 2nd – 14th respondents shall be binding on the parties in the underlisted petitions:-
(1) NAS/EPT/KBS/07/03; Ron. Abdullahi K. Kamba & PDP v. Alh. Ibrahim Bawa & ANPP.
(2) NAS/EPT/KBS/08/03; Ron. Zailani Mohammed & PDP v. Alh. Usman Sani, ANPP, INEC and 30 others.
(3) …
(4) …
(5) …
which all have the same preliminary objections based on all the grounds in the election petition No. NAS/EPT/KBS/06/ 03, whose ruling has just been delivered. The tribunal accordingly struck out these petitions.”
The learned Counsel to the 1st and 2nd respondents Mr. Rickey Tarfa (SAN) in his brief on the preliminary objection referred to section 241(c) of the Constitution of the Federal Republic of Nigeria, 1999 and submitted that the tribunal was of a co-ordinate jurisdiction with both the Federal High Court and the State High Court, since the rules of the Federal High Court were applicable in some of its procedures and appeals lie to the Court of Appeal. He referred to paragraph 50 of the 1st Schedule to the Electoral Act, 2002. He submitted that no leave of the tribunal and/or the Court of Appeal has been sought and obtained before the appellants filed this appeal. He submitted that the ground i.e. ground 2 of the appeal is incompetent as no leave of the tribunal or Court of Appeal was sought and obtained before the appeal was filed. He urged the court to strike out ground 2 of the appeal and issue No.1 formulated therefrom.
As could be gathered from page 45 of the record of appeal in this appeal, the issue of whether the proceeding and/or ruling in the petition No. NAS/EPT/KBS/06/03 should be binding in the other five (5) petitions listed thereunder, was clearly by consent of the parties. The learned trial Tribunal after hearing argument from learned Counsel for the parties on the 5/6/2003 recorded at page 45 of the record of appeal as follows:-
“This proceeding by consent of Mr. Rickey Tarfa (SAN) the 1st respondent’s counsel, Mr. M. S. Aminu- the petitioners’ counsel, and R. A Sadik, counsel to the 2nd – 14th respondents shall be binding on the parties in the underlisted petitions:-
(1) NAS/EPT/KBS/07/03
Hon. Abdullahi K. Kamba
Alh. Ibrahim Bawa & ANPP
(2) NAS/EPT/KBS/08/03
Hon. Zailani Mohammed & PDP v. Alh. Usman Sani & ANPP & Oths.
(3) NAS/EPT/KBS/09/03
Alh. Isa Galaudu & PDP v. Alh. Sani A. Kamba & Oths.
(4) NAS/EPT/KBS/10/03
Alh. Nasiru Isa Abubakar & Oths. v. Hon. Sani Bawa Argungu & Oths.
(5) NAS/EPT/KBS/11/03
Nathaniel Zome (Sarkin Yakin Zuru) & PDP v. Barrister Bala Na’ Allah & ANPP, INEC & 7 Oths.”
As indicated earlier, that record clearly shows that the parties agreed that the ruling in petition No. NAS/EPT/KBS/06 /03 should be binding on the parties in the other five (5) petitions. Consequently, the ruling/or judgment was by consent of parties as regards its bindingness on the parties to all the petitions. It should be noted that at the hearing of this appeal on the 14/1/2004, the learned Counsel to the appellants, Mr. M. S. Aminu admitted that it was true that he as counsel to the petitioners and Mr. Rickey Tarfa (SAN) for the 1st and 2nd respondents, as well as Mr. R. A. Sadik agreed that the ruling on the objection in the petition No. NAS/EPT/KBS/06/03 argued before the tribunal be binding in on the parties in the other five (5) petitions herein before mentioned.
The question arises as to whether the learned Counsel for the appellant can now appeal against the bindingness of the said ruling on the parties in the other five (5) petitions. Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999, provides the answer. It says:-
“241(2) – Nothing in this section shall confer any right of appeal:-
(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
The above provisions of the Constitution is very clear and unambiguous. For a litigant to appeal against a decision of the High Court, be it Federal or State made with the consent of the parties, leave of that court or that of the Court of Appeal is a mandatory condition precedent. I think, the same principle applies to a decision of election tribunal. The appellant must seek and obtain the leave of the tribunal or the Court of Appeal for an appeal against a decision of the tribunal made with the consent of the parties to be competent. In the instant case, there is no evidence that such leave has been sought and obtained by the appellants.
In Abel Woluchem v. Dr. Charles Wokoma (1974) 3 S.C. 153, the Supreme Court, per Ibekwe, J.S.C. had the following to say on consent judgment.
He said:-
“The rule is that actions may be settled by consent during trial, usually, such settlement is a compromise, and, in order to have binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment. In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary. When the court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the court.”
In Vulcan Gases Ltd. v. Gesellschaft Fur Industries A. G. (2001) 9 NWLR (Pt. 719) 610 at 646. The Supreme Court has the following to say:-
“The general principle of the law is that at the trial of an action the authority of counsel extends, when it is not expressly limited, to the whole of the court action and all matters incidental to it and to the conduct of the trial see Sourendra Nath Mitra v. Srimati Tarubala Dasi (1930) 46 TLR 191 PC …. It cannot be disputed that where counsel by the authority of his client and with full knowledge of the facts consents to an order, there being no mistake or surprise in the case, the client cannot arbitrarily withdraw such consent, and the court may proceed to perfect the order but without prejudice to any application which the other side might make to the court to be relieved from his consent on the ground of fraud, mistake, misrepresentation or surprise or for other cogent and sufficient reason.”
In the instant case, the learned Counsel for the petitioners/appellants admitted that he as counsel for the petitioners at the trial tribunal agreed with Mr. Rickey Tarfa (SAN) for the 1st and 2nd respondents and Mr. R. A. Sadik; counsel for the 3rd – 5th respondents that the decision in the ruling on the objection in petition No. NAS/EPT/KBS/06/03 be binding on the parties in respect of the objections in the other five petitions in which the three counsel were counsel. The tribunal then made an order that the decision in the ruling be binding on the parties in the other five petitions. There is no evidence of mistake or misrepresentation or surprise.
A consent judgment had therefore, emerged and the parties could appeal only by leave of the court; in this case, either with the leave of the trial tribunal or by leave of the Court of Appeal. No evidence before this court that the appellants had sought for and obtained the leave of the court before this appeal was filed. In the circumstances I think there is merit in the objection to ground two (2) of the appeal. The objection against ground two (2) of the grounds of appeal is sustained and the said ground two (2) of the grounds of appeal is accordingly struck out. Issue No. 1 formulated from the said ground two (2) and the arguments thereunder are hereby struck out for being incompetent.
The learned Counsel to the 1st and 2nd respondents also raised an objection to ground three (3) of the grounds of appeal. He argued that the incompetence of ground three (3) of the grounds of appeal emanated from the 2nd particulars of error of the said ground of appeal, in that the 2nd particular of error was argumentative and therefore offended Order 3 rule 2(3) of the Court of Appeal Rules, 2002. He referred to the case of Kachia v. Yazid (2001) 17 NWLR (Pt.742) 431.
For better appreciation of the said ground three of the grounds of appeal, the particulars of error and how the alleged offending particular affects the competence of the grounds, the said ground and the particulars are hereby set as follows:-
“The learned trial Tribunal members erred in law, when they held that this appeal is statute barred in that same was filed outside the mandatory statutory period of thirty (30) days from the date the result of the election was declared.
Particulars of error
(i) From the contents of the counter-affidavit evidence before the trial tribunal, it is clear that the petition herein was filled (sic) on the 14th day of May, 2003, which was the last day within the 30 days statutory period provided by section 132 of the Electoral Act, 2003.
(ii) The decision in Iloka v. Utomi (1999) 2 NWLR (Pt. 592) page 583, relied upon by the trial tribunal is inapplicable in the present petition in that Utomi’s case was decided under the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, section 86(2) thereof, which law is no longer applicable as same has now been replaced by the provision of the current Electoral Act, 2002.”
Order 3 rule 2(3) of the Court of Appeal Rules, 2002, in prescribing what notice and grounds of appeal shall contain provides as follows:-
“(3) The notice of appeal shall set forth concisely and under distinct heads the grounds, upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
Order 3 rule 2 (4) of the rules goes on to say –
“No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”
It is the law that a ground of appeal that is vague or argumentative or containing prolix narrative particulars is contrary to Order 3 rule 2(2) and (3) of the Court of Appeal Rules and therefore incompetent – See Alhaji Ado v. Amiru Yazid (2001) 17 NWLR (Pt.742) 431. See also Adah v. Adah (2001) 5 NWLR (Pt. 705) 1.
In the instant case, ground three (3) of the grounds of appeal which is being challenged has two (2) particulars of error. The respondents are attacking the second particulars to the effect that it is argumentative and therefore offends the provisions of Order 3 rule 2(3) of the Court of Appeal Rules, 2002. A careful perusal of the said ground three (3) of the appeal shows that the ground without the particulars is concise and very clear showing without any ambiguity the allegation of the appellants against the judgment. The first particulars of error is also very clear. It is not argumentative or narrative. When the ground is read along with the first particulars of error, what the appellants are complaining about is very clear and no one is thereby misled as to the complaint of the appellants. It seems to me that the said ground three (3) of the appeal without the second particulars of error thereunder still constitutes a valid ground of appeal and thereby satisfies the provisions of Order 3 rule 2(3) of the Court of Appeal Rules, 2002. In that regard, objection against ground three (3) of the appeal fails and it is hereby overruled.
The learned Counsel to the respondents also raised objection to ground four (4) of the notice of appeal. The learned Counsel to the 1st and 2nd respondents referred to the 1st particular of error and submitted that the 1st particular was clearly argumentative and it offended the provision of Order 3 rule 2(3) of the Court of Appeal Rules, 2002. He referred to the case of Kachia v. Yazid (supra) and submitted that where the particulars in support of a ground of appeal are not related thereto, the ground of appeal is in breach of Order 3 rule 2(2), (3) and 4 of the Court of Appeal Rules and incompetent. He also argued that the fourth particular to ground four (4) of the notice of appeal as set out was not complementary to the said ground. He submitted that the incompetent particulars affected the ground of appeal and the ground became incompetent.
Ground four (4) of the notice and ground of appeal reads as follows:-
“(4) The learned members of the trial tribunal erred in law, when they in their ruling dated 9th June, 2003, held as follows:-
‘On the issue of whether or not, the petition was filed within time or out of time, we have gone through all the relevant documents and the tribunal agreed with the submission of the applicant’s counsel that the only recognizable way of determining when an election petition is presented is the date when Form TF 002 is dated as provided in paragraph 3(1) of the 1st Schedule to the Act.
Particulars of error
(i) The giving of receipt by the secretary of the tribunal as evidence of presentation of the petition, must not always be in Form TF. 002 but may be in that form.
(ii) Another way of confirmation of evidence of presentation of a petition in a tribunal is the production of official receipt showing that the fees for service and publication of the petition, and for certifying the copies of same as mandatory (sic) by paragraphs 3(4) and 7(1) of the required First Schedule to the Act. The tribunal had stated in its ruling that having gone through the records it discovered that the filing fees, the security for costs, certification and publication were all paid and were reflected in the petition.
(iii) The petitioners/respondents had exhibited in their counter-affidavit evidence of such payments in exhibit SA1A and SA1B all dated 14th May, 2003.
(iv) There is conflict as to the date the petition was presented/filed at the Tribunal Registry as depicted in exhibits SA1A SA1B in the petitioners/respondents’ counter-affidavit dated 5th ,June, 2003 and exhibits HZM1 and HZM4 of the 1st and 2nd respondents/applicants further affidavit dated 5th June, 2003. This conflict ought to have been resolved by oral evidence which the tribunal failed to do, resulting in miscarriage of justice.”
A critical examination of this ground of appeal vis-a-vis the particulars of error thereunder seems to show, in the first particular, that Form TF 002 may not necessarily be the only evidence of receipt issued by the secretary to the tribunal as evidence of presentation of an election petition. The first particular of error is therefore related to the issue as to when the petition was presented, that is, in controversy in the ground of appeal. I think the first particular is in order. Similarly, the second particular of error, though, not elegantly framed, also related to the issue in controversy; that is, evidence of presentation of the petition.
In the same vein, the third particular of error is also in relation with the date of filing or presentation of the petition, which is the issue in controversy. I agree with the learned Counsel to the 1st and 2nd respondents that the fourth particular of error is not complementary to the ground in question. It complains of conflict in the affidavit evidence which is unrelated to the issue in controversy. With the first, second and third particulars of error, ground four (4) of the appeal seems to me to be competent.
In that regard, objection to ground four (4) of the appeal is also overruled. In the final analysis, I am of the view and I so hold that only grounds three (3) and four (4) of the grounds of the appeal are competent, ground two (2) having been struck out earlier along with the arguments proffered thereon.
I will now consider the issues formulated from grounds three (3) and four (4) of the grounds of appeal. Issue No.2 formulated by the appellants related to ground three (3) of the grounds of appeal.
Issue No.2 reads as follows:-
“(2) Whether or not, having regard to the circumstances of this case, the petition was filed within the mandatory period of thirty (30) days as required by S. 132 of the Electoral Act, 2002.”
The 1st and 2nd respondents also identified three (3) issues for determination, issue No.1 formulated by the 1st and 2nd respondents is similar and the same in substance as issue No.2 in the appellant’s brief.
The issue reads as follows:-
“(1) Whether the petition having been presented on 15th May, 2003, was not caught by the limitation for the time of filing the petition under the Electoral Act, 2002.” The 3rd – 5th respondents also formulated two (2) issues for determination of the court. Issue No.1 formulated by the 3rd – 5th respondents related to ground two (2) of the grounds of appeal which has been struck out for being incompetent.
Issue No.2 formulated by the 3rd – 5th respondents is also the same in substance as issue No.3 identified by the appellants and issue No.3 raised by the 1st and 2nd respondents.
The issue reads:-
“(2) Whether the trial tribunal was not right in holding that Form TF002 is the only recognizable way of determining when an election petition is presented.”
The issue will be treated together with issue No.3 in the appellants’ brief and issue No.3 identified by the 1st and 2nd respondents. For now, issue No.2 in the appellants brief and No.1 formulated by the 1st and 2nd respondents will be treated together.
The issues read:-
“(2) Whether or not, having regard to the circumstances of this case, the petition was filed within the mandatory period of thirty (30) days as required by S. 132 of the Electoral Act, 2002 – (Ground 3)”
Issue No.1 in the 1st and 2nd respondents’ brief, reads:-
“(1) Whether the petition having been presented on 15th May, 2003, was not caught by the limitation for the time of filing the petition under the Electoral Act, 2003.”
In arguing the issue under consideration, the learned Counsel to the appellant Mr. M. S. Aminu, referred to section 132 of the Electoral Act, 2002 and in particular, the word “presented”. He asked a question, namely –
“what does the word, presented as used in the Act means?” or when can it be said that an election petition has been presented in the Registry of an election tribunal or a court of law? He referred to First Schedule to the Electoral Act, 2002, paragraphs 2(1), 3(1) and 7(2) where the words presenting, and presentation respectively are used. He also referred to ‘words and phrases legally defined’ 2nd Ed., Vol. 4, O-R series, pages 171 – 172, and submitted that “presentation” of a petition meant “filing” of a petition.
He also referred to the case of Eminue v. Nkereuwen & Oths. (1966) 1 ANLR 63, (1966) NSCC Vol. 4 page 51 at 54. He submitted that an election petition is presented when the necessary fees are paid and the receipt for such payment are issue to the litigants and not when the secretary to the tribunal issued a certificate of receipt in Form TF002 in respect of the petition. He submitted that the date the petition in this case was presented in the secretary of the tribunal and filed in the tribunal Registry was and still remains 14/05/03 being the date shown on exhibits SA1A and SA1B, i.e. the receipts showing payments of all fees, filing fee inclusive.
He referred to pages 34 – 35 of the record of appeal, i.e. the receipt of petition issued by the secretary to the tribunal dated 15/5/2003 and signed by the secretary and submitted that the tribunal was wrong to hold that the petition was presented on the 15th May, 2003, when the secretary to the tribunal signed Form TF002.
He referred to the case of Ilukwe v. Anah (1999) 5 NWLR (Pt.603) 476 and submitted that payment of filing fees and other costs were pre-conditions which must be fulfilled before an election petition could be said to have been presented in the election tribunal. He urged the court to follow Ilukwe’s case (supra), and allow the appeal. He submitted that any default, delay or dereliction of duty on the part of the secretary to the tribunal could not be visited on the litigants as to nullify court process filed by the litigant. He referred to many cases including Eminue v. Nkereuwen (supra).
The learned Counsel for the appellants further argued that the decision of the trial tribunal promoted technicality rather than substantial justice. He submitted that the attitude of the courts in recent time was more tilted towards determining a case on its merit, rather than clinging to mere procedural technicalities. He relied on Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569 at 582; City Eng. (Nig.) Ltd. v. N. A. A. (1999) 11 NWLR (Pt. 625) 76 at 89. He submitted that to rely on Form TF002 and conclude that the election petition was presented on the 15th May, 2003, was to rely on technicality; and not substantial justice. He submitted that the case of Iloka v. Utomi (1999) 2 NWLR (Pt. 592) 583, heavily relied upon by the trial tribunal was inapplicable to this case. He urged the court to allow the appeal.
On the issue under consideration, the learned Counsel to the appellants in arguing the appeal also referred to section 132 of the Electoral Act, 2002. He referred to page 6 of the record of appeal with respect to the endorsement of the presentation of the petition on the 15th of May, 2003. He also referred to paragraph 3(b) of the 1st and 2nd respondents’ affidavit in support of preliminary objection at pages 15 -18 of the record of appeal and submitted that the petition having been presented on the 15th of May, 2003, was presented outside the mandatory thirty (30) days and thereby became incompetent, and should be struck out.
He referred to the argument of the learned Counsel to the appellants to the effect that there was a receipt of payment of filing fees obtained from the Registry of the tribunal. He submitted that the requirement of the law was in the presentation ofthe petition, and not upon the issuance of the treasury receipt on which the appellants sought to rely. He said the Electoral Act, 2002, did not provide for a treasury receipt as evidence of presentation of an election petition. He submitted that the cases of Alston v. Alston (1946) p. 203, Eminue v. Ukereuwen (1966) 1 SCNLR 149, Ilukwe v. Anah (1999) 5 NWLR (Pt. 603) 476 and Olaniyonu v. Professor Eme Awa (1989) 5 NWLR (Pt. 122) 49. Cited by the learned Counsel for the appellants were irrelevant to this case. He urged the court to dismiss the appeal.
The learned Counsel to the 3rd – 5th respondents Mr. Suleiman Abdulkadir, on his issue No.2 which covers ground three (3) of the grounds of appeal, referred to the revenue collector’s receipt issued in the name of M. K. Jubril & Co., attached to the counter-affidavit filed by the appellants, showing that the petition was filed on the 14th of May, 2003. He also referred to the 1st and 2nd respondents’ further and better affidavit showing the receipt of petition and notice of presentation of the petition signed by the secretary to the election tribunal dated 15th of May, 2003. He referred to paragraph 3 of the First Schedule to the Electoral Act, 2002 and submitted that the only recognizable evidence of presentation of petition is Form TF002.
He submitted that since the notice of presentation of the petition signed by the secretary to the tribunal showed that the petition was presented on the 15th of May, 2003, the petition was presented outside the thirty (30) days period prescribed by section 132 of the Electoral Act, 2002. He urged the court to dismiss the appeal.
The issue for determination is whether the petition in this case was presented within the thirty (30) days period prescribed by section 132 of the Electoral Act, 2002. Section 132 of the Electoral Act, 2002, provides as follows:-
“132. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
From the above provisions of the Electoral Act, 2002, the wordings of section 132 are simple, very clear and straight-forward. It is saying that an election petition must be presented within thirty (30) days from the date the result of that election is declared. The question arises; what does the word “presented” as used in the Act mean? When can it be said that an election petition has been presented; in other words, what is the meaning of the magic words “shall be presented” within the context of the Electoral Act, 2002? Although, the Electoral Act, 2002, does not specifically define the word “present”, used in section 132 of the Act, there is no need for definition of the word as it is very clear.
However, paragraphs 2 and 3 of the First Schedule to the Electoral Act, 2002, seem to have thrown some light as to what section 132 of the Act means by the word “presented” within thirty (30) days from the date the result of the election is declared. Paragraph 3 of the First Schedule to the Electoral Act, 2002, provides as follows:-
“3.(1) The presentation of an election petition under this Act shall be made by the petitioner (or petitioners if more than one) in person, or by his solicitor, if any, named at the foot of the election petition to the secretary, and the secretary shall give a receipt which may be in Form TF.002 set out in the Second Schedule to this Act.”
Paragraph 3(2) of the First Schedule, goes on to say:-
“the petitioner shall, at the time of presenting the election petition, deliver to the secretary a copy of the election petition for each respondent and ten other copies to be preserved by the secretary.”
Paragraph 2(1) of the said Schedule to the Electoral Act, also provides:”
2(1) At the time of presenting an election petition, the petitioner shall give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent”
Paragraph 7(1) of the Schedule goes further to say:-
“7 (1) On the presentation of an election petition and payment of the requisite fees, the secretary shall forthwith:-
(a) Cause notice, in Form TF.003 set out in the Second Schedule of this Act, of the presentation of the election petition, to be served on each of the respondents.
(b) Post on the tribunal notice board a certified copy of the election petition; and
(c) Set aside a certified copy for onward transmission to the person or persons required by law to adjudicate and determine the election petition.”
The learned Author of Oxford Advanced Learner’s Dictionary of Current English by A. S. Homby, 5th Edition at page 912 defines, the word “present” used as a verb as meaning, inter alia, “to give to”. A reading together of section 132 of the Electoral Act, 2002 and paragraphs 2(1), 3(1), 3(2) and 7(1) of the First Schedule to the Act, seems to show that the presentation of an election petition under the Act, must be by the petitioner(s) or his solicitor, to the secretary to the tribunal and the secretary on receipt of the petition shall give a receipt in Form TF.002 set out in the Second Schedule to the Act. From the provisions of paragraph 3(1) of the First Schedule to the Act, the law clearly prescribes the person to whom the petition must be presented or given, to constitute a proper filing of the petition, i.e. the secretary; the law also prescribes what shall be the evidence of proper presentation or filing of the petition which the secretary will issue to the petitioner i.e. a receipt in Form TF.002. That the petition be presented to the secretary is mandatory and that the secretary must give a receipt in Form TF.002 is equally mandatory.
The learned Counsel for the appellants conceded that it is mandatory for the secretary of the tribunal to give receipt under the provision of paragraph 3(1) of the First Schedule to the Act. His main contention is that the secretary has a discretion as to whether to give the receipt in Form TF.002 set out in the Second Schedule to the Act or to give the receipt in any other form, be it a revenue collector’s receipt, in so far as the word used in paragraph 3(1) of the First Schedule to the Act to describe the form of the receipt is “may”.
I do not agree with the contention of the learned Counsel. Whether the word “may” used in a legislation should be construed as being mandatory or discretionary depends on the context in which the word is used. Similarly, the word “shall” may not be construed as being mandatory, but as being directory. It all depends on the context in which it is used.
In Ifezue v. Mbadugha & Oth. (1984) 1 SCNLR 427, (1984) 5 SC 79 at 135, the Supreme Court, per Eso, JSC, had the following to say:-
“It is now trite that the word “shall” does not always mean “must” – a matter of compulsion. It could be interpreted, where the context so admits as “may”; whereas “may” is also not always “may”. It may sometimes be equivalent to “shall”.”
The law is that where a statute imposes a duty on a public officer to be carried out in a particular form for the benefit of a private citizen, the word “may” used in the section must be construed as mandatory and/or meaning “shall” or must.
In Ogualaji v. A.-G., Rivers State (1997) 6 NWLR (Pt. 508) 209 at 233, the Supreme Court, per Iguh, JSC, reiterated the law as follows:-
“It therefore seems to me settled that although section 28(1) of the State Lands Law of Eastern Nigeria, applicable in Rivers State provides that the lessor “may” enter a suit for recovery of possession on expiration of the lessee’s lease, the word “may” in that section must be construed as mandatory and/or as meaning “shall” or “must” since it imposes a duty upon a public functionary for the benefit of a private citizen.”
In R v. Bishop of Oxford (1879) 4 Q.B.D. 245, Lord Cairns was of the opinion that:-
“Where power is deposited with a public officer for the purpose of being used for the benefit of who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the court will require it to be exercised.”
In the same case, Lord Cockburn made a pertinent point. He said:-
“The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.”
In the instant case, paragraph 3(1) of the First Schedule to the Electoral Act, 2002, makes it mandatory for a petitioner to present his petition to the secretary of the tribunal. It goes further to impose on the secretary of the tribunal a duty to issue a receipt to the petitioner in Form TF.002 as follows:-
“and the secretary shall give a receipt which “may” be in Form TF.002 set out in Second Schedule to this Act.”
I think in view of the context in which the word “may” is used in paragraph 3(1) of the First Schedule to the Act, the word “may” in that paragraph must be construed as mandatory and/or as meaning “shall” or “must’, since it imposes a duty on secretary to the tribunal, a public officer, for the benefit of the litigants. In the circumstances, I am of the view that the receipt which the secretary of the tribunal must issue to the petitioner as evidence of receipt of an election petition must be in Form TF002 set out in Second Schedule to the Act.
A critical analysis of the combined provisions of section 132 of the Electoral Act, 2002, paragraphs 2 and 3(1) of the First Schedule to the Act shows that presentation of an election petition under section 132 of the Act, is a process. An election petition under the Act is said to be presented when the petitioner or his solicitor pays all the necessary fees and costs payable under paragraphs 2(1) and 3(4) of the First Schedule to the Act and gives the petition to the secretary to the tribunal and the secretary to the tribunal issues receipt of petition in Form TF002 set out in the Second Schedule to the Electoral Act, 2002, to the litigant or petitioner. Payment of the fees and costs payable under paragraph 2 of the First Schedule to the Act, and no more, does not constitute presentation of an election petition under section 132 of the Electoral Act, 2002.
Paragraph 5 of the counter-affidavit filed by the appellants against the notice of preliminary objection filed by the 1st and 2nd respondents shows that the petition was presented to a registry official and that the said official gave revenue collector’s receipts, marked as exhibits SA1 and SA2. Paragraph 5 of the said counter-affidavit of the appellants also, shows that the petition was not presented to the secretary to the tribunal and that the receipt evidencing the presentation was not in Form TF002.
As indicated above, that the petition be presented to the secretary to the tribunal, who shall issue a receipt of petition in Form TF002 is mandatory. It is a mandatory provision of the Electoral Act, 2002. The law is well settled that where a statute provides for a particular method of performing a duty imposed by statute, that method and that method alone must be complied with. The Supreme Court, Per Nnaemeka-Agu, JSC, in Co-operative and Commerce Bank (Nig.) Ltd. v. Attorney-General of Anambra State & Oth. (1992) 8 NWLR (Pt. 261) 528 at 556 stated the law as follows:-
“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other, must have to be adopted.”
In Nuhu Sani Ibrahim v. Independent National Electoral Commission & Oths. (1999) 8 NWLR (Pt. 614) 334 at 352, this court, per Salami, JCA, reiterated the law as follows:-
“It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it.”
The learned Counsel to the appellants referred to many cases among which was the Supreme Court case of Eminue v. Nkereuwen & Oths. (1966) 1 All NLR 63, (1966) NSCC 51, where the Supreme Court was called upon to answer the following questions, namely:-
(1) Whether the election petition was filed within time.
(2) Whether non-payment of fees invalidate a petition.
(3) Whether there was a petition according to law. The learned Counsel argued that the case of Eminue clearly establishes that a petition is filed when the necessary fees are paid and the receipt for such payments are issued to the litigants and not when the secretary issues a certificate in respect of a petition.
I do not agree with the learned Counsel that what Eminue’s case established is that a petition is filed when necessary fees are paid and the receipt for payments is issued to the litigants. In that case, Ademola, C.J.N., stated inter-alia, as follows:-
“The Registrar, it is true issued a receipt in Form 9 in Part II of the First Schedule to the Act. It is, however, agreed that the receipt should only issue when section 99 of the Act has been complied with, namely, when a petition had been presented and filed. It is clear the Registrar was in error in issuing the certificate of receipt of the petition in Form 9. It was contended that the issue of this certificate was enough to satisfy the requirements of section 99 of the Act, and we reject the submission that this certificate was enough to satisfy the requirements of section 99 of the Act. Sub-section (4) expressly provides that “no petition shall be received without payment of fees and the deposit unless the court otherwise orders”, but the court did not otherwise order, and the Registrar could not receive the petition without payment of the fees and deposit. His act therefore in issuing the certificate of receipt of the petition was an act done ultra vires and therefore a nullity.”
I think all the Supreme Court was saying is that the provisions of the statute must be complied with. In that case, i.e. Eminue’s case, section 99 of the statute said that the Registrar shall issue certificate of receipt after all the necessary fees and deposits had been paid. The Registrar issued the certificate of receipt of petition in Form 9 in error. The court was urged to accept that the issue of the certificate was enough to satisfy the requirements of section 99 of the Act, namely, that the petition has been presented and filed. The Supreme Court refused to accept the submission, saying the provision of sub-section (4) of section 99 must be complied with; that is, all the necessary fees and deposit must be paid. To my mind, all the Supreme Court is saying in Eminue ‘s case is that the statutory provisions must be complied with, not that once all necessary payments and deposit are paid, the petition is properly filed.
However, the facts in Eminue’s case are distinguishable from the facts of this case. In the instant case, it is a case of not presenting the petition in accordance with paragraph 3(1) of the First Schedule to the Act.
In that regard, going by paragraphs 2, 3, 4 and 5 of the counter-affidavit filed by the appellants against the notice of preliminary objection filed by the 1st and 2nd respondents, the petition was not presented to the secretary to the tribunal as prescribed by paragraph 3(1) of the First Schedule to the Electoral Act having been presented to an unknown official of the registry and no receipt of the presentation of the petition recognized by the Act was issued.
Be that as it may, the 1st and 2nd respondents filed a further affidavit in support of the notice of preliminary objection. Paragraphs 4 and 5 of the further affidavit show that the appellants in truth and in fact presented the petition to the secretary to the tribunal on the 15th of May, 2003 and not on the 14th of May, 2003 as alleged by the appellants. Paragraphs 4 and 5 of the further affidavit read as follows:-
“(4) That the said Benjamin B. Orpin had deposed that the instant petition was filed on 15th May, 2003.
(5) That pursuant to the above, attached herewith, are copies and marked exhibits HZM1 and HZM2 respectively, of the receipt of petition dated 15th May, 2003.”
Page 34 of the record of appeal is the receipt of petition dated 15th day of May, 2003 and stamped and signed by the secretary to the tribunal i.e. Exhibit HZM1. Also, at page 35 of the record of appeal, there is a notice of presentation of petition dated the 15th day of May, 2003, stamped and signed by the secretary to the tribunal. Exhibit HZM2. It is worthy of note that exhibit HZM1 is in Form TF002, while exhibit HZM2 is in TF003 prescribed for that purpose by paragraphs 3(1) and 7(1)(a) of the First Schedule to the Electoral Act, 2002.
A careful reading together of section 132 of the Electoral Act, and paragraphs 3(1), 3(2) and 7(1)(a) of the First Schedule to Electoral Act, 2002, and exhibits SAI and SA2 attached to the counter-affidavit of the appellant as well as exhibits HZM1 and HZM2 attached to the further affidavit of the 1st and 2nd respondents clearly shows to me that the only legally recognized evidence of presentation of an election petition under the Electoral Act, 2002, is Form TF002 set out in the Second Schedule to the said Act. It further shows clearly and undoubtedly that the appellants presented the petition in this case to the secretary of the tribunal on the 15th day of May, 2003.
On the issue of whether or not the petition was filed within the mandatory period of thirty (30) days from the date the result of the election was declared as required by section 132 of the Electoral Act, 2002, the 1st and 2nd respondents filed an affidavit in support of the notice of preliminary objection against the petition. See pages 11 – 14 of the record of appeal.
In paragraphs 2, 3, 4 and 5 of the affidavit in support of the objection, the deponent stated as follows:-
“(2) That I have the consent and authority of the 1st and 2nd respondents, Messrs Rickey Tarfa & Co. and Messrs Abubakar Abudullahi & Co. to depose to this affidavit in support.
(3) That I have been informed by Alhaji Ibrahim Bawa (the 1st respondent) and I verily believe him as follows:-
(a) the election in respect of which this petition was filed was conducted on the 12th of April, 2003;
(b) On the 13th of April, 2003, the said 1st respondent was declared the winner and presented with a certificate of declaration of result by the 3rd respondent herein.
(c) The results of the election was also transmitted over the mass media on 13th April, 2003, wherein the 1st respondent was declared the winner having polled the majority of votes.
(4) That the instant petition was filed on the 15th of May, 2003.
(5) That I have been informed by Rickey Tarfa (SAN), leading counsel for the 1st and 2nd respondents and I verily believe him as follows:-
(a) the period between the declaration of the result of the elections and the filing of the instant petition is more than thirty (30) days.
(b this tribunal has no jurisdiction to adjudicate on the said petition, same being incompetent having been filed contrary to the mandatory provisions of sections 132 and 139 of the Electoral Act, 2002.”
The appellants filed a counter-affidavit against the objection. See pages 38 – 38B of the record of appeal.
In the counter-affidavit, the appellants did not deny that the result of the elections was declared on the 13th of April, 2003. In paragraphs 4 and 5 of the counter-affidavit, the deponent deposed that the petition was presented on the 14th day of May, 2003 as opposed to 15th day of May, 2003, stated by the 1st and 2nd respondents. The appellants showed as evidence of presentation of the petition two (2) revenue collector’s receipt marked exhibits SA1 and SA2. As indicated earlier in this judgment, revenue collector’s receipts are clearly not recognized evidence of receipt of petition and notice of presentation of petition prescribed by the Electoral Act, 2002. To that extent, I am of the view that there is no evidence before the trial tribunal that the petition was filed on the 14th day of May, 2003.
The only evidence of receipt of petition and presentation of petition are exhibits HZM1 and HZM2 respectively clearly showing that the petition was presented to the secretary to the tribunal and same was received by him on the 15th day of May, 2003. There being no dispute by the parties that the result of the election was declared on the 13th day of April, 2003, the thirty (30) days prescribed by section 132 of the Electoral Act, within which the petition must be presented started to run from 14th day of April, 2003 to 13th day of May, 2003. See section 15(2)(a) of the Interpretation Act.
In paragraph 3 of the counter-affidavit, the appellants alleged that the 13th day of May, 2003, was a public holiday, having been declared a public holiday by the Federal Government for celebration of the birthday of Prophet Muhammad, (Id-EI-Maulud). That averment was not controverted by the 1st and 2nd respondents in their further affidavit in support of the objection. In that regard the thirty (30) days provided under section 132 of the Electoral Act, 2002, within which to present election petition started to run from 14th day of April, 2003 to 14th day of May, 2003. See section 15(2)(b) of the Interpretation Act. In the instant case, the only evidence of the presentation of the petition in accordance with the provisions of the Electoral Act, 2002 are exhibits HZM1 and HZM2, which show clearly that the petition was presented to the secretary to the tribunal who received, stamped and signed same on the 15th day of May, 2003, a day after the expiration of the period prescribed by the Act.
In the circumstances, I am convinced that the petition was not presented within the mandatory period of thirty (30) days as required by section 132 of the Electoral Act, 2002. In that regard, issues Nos. 2 and 3 are both resolved against the appellants.
In the final analysis, there is no merit in the appeal and should be dismissed. The appeal is hereby dismissed. (N5,000) five thousand naira costs to each set of the respondents.
Other Citations: (2004)LCN/1550(CA)
