Hon. Ebiakpo Ezebri V. Hon. (Engr.) Frank Enekorogha & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, OFR, J.C.A
This is an appeal against the ruling of the Governorship/Legislative Houses Election Tribunal sitting in Asaba delivered on the 12th day of September, 2007 by a panel of five Hon. Judges presided over by A.O. Lokulo-sodipe, J.
The ruling was as a result of the consideration given to a number of motions and preliminary objection filed by the parties in the course of hearing a petition filed by the petitioner who is now the appellant.
It is apt at this stage to briefly delve into the petition which instanced the applications of the parties and the subsequent ruling which is the subject of the instant appeal.
Paragraphs 2, 3, 4, 5, 6 and 24 of the twenty four paragraph depositions made by Hon. Ebiakpo Ezebri, as the petitioner, are of moment and I reproduce them as follows:
“2. I am a businessman/politician and was one of the four (4) candidate who contested the election for the office of member of the Burutu North Constituency I into the Delta State House of Assembly that was purportedly held on 14th day of April, 2007.
- I contested the purported election on the platform of ALL NIGERIAN PEOPLES PARTY (ANPP) while the 1st respondent contested the election on the platform of Peoples Democratic Party (PDP).
- The 2nd – 11th respondents are agents of the 4th respondent which is the body charged with the conduct of elections in Nigeria into the Legislative House of Assembly that took place on the 14th day of April, 2007.
- At all times material to the election, I am qualified to contest the election and did not and has not suffered any disability to contest this election as well as present this petition. The petitioner has every right to present this petition.
- The purported election was held on 14th day of April, 2007 as stated above and the following results declared by the 4th respondent (INEC) for the parties are as stated in the result sheet, the result are (sic):-
AC – 38
AP – 20
ANPP – 940
PDP – 18,303
The said result as stated in FORM EC8E(1) shall be relied upon in the hearing of this petition (sic).
(1) The petitioner states that pursuant to the aforementioned results, the 1st respondent was returned as the elected member for Burutu North Constituency 1. into the Delta State House of Assembly (sic)
- Petitioner states that on the instruction of 1st Respondent and his sponsor, 2nd – 11th respondents, (sic) made up the election result to legalize the false and illegal declaration of the 1st respondent as duly elected member purporting to represent Burutu North Constituency 1.
Accordingly the petitioner will contend that the 1st – 11th respondents perpetrated electoral malpractices and the purported election is void by corrupt practices, irregularities and offences against the Electoral Act 2006 and 2007.” (sic).
“WHEREFORE YOUR PETITIONERS PRAYS (SIC) THAT IT BE DETERMINED
(i) That the 1st respondents were not duly elected as members representing Burutu North Constituency I in the Delta State House of Assembly (sic).
(ii) That the purported election of 1st Respondent purportedly held on 14/04/07 or any other date be declared void.
(iii) That a fresh and/or a bye-election into the Delta State House of Assembly Burutu North Constituency 1 be ordered ….. ”
The 1st respondent having entered a conditional appearance filed his reply on the 30th day of May 2007 while the 2nd – 11th respondents filed their joint reply on 31st May, 2007. See pages 32 to 33 and 262 to 267 of the record of appeal respectively. The petitioner, on his part, filed a reply to the 1st respondent’s reply on the 9th of June, 2007. See pages 268 to 270 of the record of appeal.
Trial of the substantive petition commenced on 2nd July, 2007 and continued until 9th August, 2007 when cross examination of the 1st respondent was concluded. Further defence in the petition was adjourned to 16th August, 2007. In the interim, the 1st respondent filed a motion on notice on 10th August, 2007 praying, inter alia, for an order of the Tribunal striking out the petition on the grounds of incompetence and lack of jurisdiction.
The 2nd to the 11th respondents also field a similar motion on notice on 10th August, 2007.
The petitioner reacted to these two motions on notice by filing a notice of preliminary objection and counter affidavit. These two processes were filed on the 15th August, 2007.
The parties thereafter filed the appropriate written addresses for the consideration of the trial Tribunal.
At the hearing of the said motions and preliminary objection on the 6th day of September, 2007, the learned counsel to the parties adopted their respective written addresses and the trial Tribunal reserved its ruling to 12th September, 2007. On the appointed day, the trial Tribunal dismissed the petitioner’s notice of preliminary objection and struck out the instant petition No. EPT/DT/HA/06/2007 on the grounds that the said petition is incompetent and that the Tribunal lacked jurisdiction to entertain same since the petitioner tailed to plead the names of the candidates who contested the said election.
The petitioner now appellant was dissatisfied with the ruling of the trial Tribunal and appealed to this Court on six grounds of appeal.
From the six grounds of appeal, the appellant raised the following issues for the determination of the appeal:
“ISSUE 1.
Whether the issue raised by the 1st respondent in his motion for striking out the petition is jurisdictional in nature so as to divest the Honourable Tribunal of jurisdiction to entertain the petition. (Grounds 1, 2 and 3).
ISSUE 2.
Whether the Tribunal was right in overruling the petitioner’s preliminary objection to the respondents’ motions in view of the stage reached in the proceedings in the petition which was already at defence stage. In other words, whether the mere fact of alleged failure to set out in the petition names of all contestants at the election affects the jurisdiction of the Tribunal so as to render inoperative provisions of paragraphs 4(6) and 49(1), (2) and (4). (Ground 2)
ISSUE 3.
Whether the non pleading of names of candidates rendered the petition incompetent in the instant case where every other relevant matter was pleaded including filing and tendering in evidence of FORM EC8E(1) before the Honourable Tribunal (Grounds 4 and 5).
ISSUE 4
Whether the Tribunal was right in failing to consider that there was substantial compliance with the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006. (Grounds 1, 2 and 3).
ISSUE 5
Whether by virtue of paragraph 4(1)(c) of 1st Schedule to the Electoral Act 2006 failure to state names of the candidates in the petition will render the petition incompetent even in a case where the petitioner’s complaint is not against the vote cast at the election but that there was no election in Burutu North Constituency 1 on 14th April, 2007. (Ground 6).”
The 1st respondent, in his brief of argument, apparently adopted the five issues formulated by the appellant.
The 2nd to the 11th respondents raised a preliminary objection to the five issues raised by the appellant and adopted by the 1st respondent. He elaborated at his page 3 of the brief of argument thus:
“That issues one, two, three and four derived from grounds one, two and three are incompetent and same be struck out.
GROUND(1) proliferation of issues more than the grounds of appeal.”
It is instructive to note that the preliminary objection raised in this appeal relates to the propriety of issues adumbrated from the six grounds of appeal for the determination of the instant appeal by the appellant. It is unlike the common place preliminary objection which is to contend that the appeal is incompetent and fundamentally defective which if it succeeds would put an end to the appeal. See NEPA V. ANGO (2001) 15 NWLR (PT. 737) 627 at 645; SAVANNAB BANK (NIG) PLC V. PRIME MANAGEMENT SYSTEMS LTD. (1999) 10 NWLR (PT. 621) 160 at 164.
The type of preliminary objection raised by the 2nd to the 11th respondents does not put an end to the appeal unless all the issues raised by the appellant are defective, in which case the appeal will be put to an end. If, however, only some of the issues raised from the grounds of appeal are defective, the surviving grounds and the issues raised therefrom shall form the bases for the determination of the appeal.
In the instant case the learned counsel for the 2nd to 11th respondents submitted in respect of proliferation of issues that it is trite that a ground of appeal cannot cover more than one issue and he relied on the case of SANTANA MEDICAL SERVICES LTD. V. NPA (1999) 12 NWLR (PT. 630) 189. He further submitted that where an issue can be covered by more than one ground of appeal, two or more issues cannot be formulated from one ground of appeal. The learned counsel for the 2nd to 11th respondents argued that the appellant formulated Issues one, two and four from combined grounds one, two and three of the notice and grounds of appeal and urged the Court to strike out Issues one, two, three and four with all the arguments canvassed thereunder for being incompetent.
I observed from the record of proceedings that the learned counsel for the appellant did not react to the preliminary objection raised on behalf of the 2nd to the 11th respondents. That lapse on the part of the appellant, notwithstanding, I shall base my opinion on the merit of the case.
Thus, I agree with the submissions of the learned counsel for the 2nd to the 11th respondents that the appellant was prolix in the formulation of Issues one, two, and four from the combined grounds one, two and three of the notice of appeal. What then is the effect of such proliferation or multiplicity? The answer is, generally, a practice of framing more than one issues from a single ground of appeal is not encouraged. It is now trite that both in the Supreme Court and in this Court that the practice of such proliferation as in this appeal is being frowned at. See CHEVRON (NIG) LTD V. ONWUABELU (1996) 3 NWLR (PT. 437) 404 at 414; ANIEKWE V. OKEREKE (1996) 6 NWLR (PT. 452) 60; ALBA.JI SULE AGBETOBA & ORS. V. THE LAGOS STATE EXECUTIVE COUNCIL & ORS. (1991) 4 NWLR (PT. 188) 664; (1991) 6 SCNJ 1 at 12; YAKAJE V. HAIRE (Supra) at page 281; ARAKA V. EJEUGWU (supra) at page 118.
In view of the settled principle enunciated in the foregoing authorities, among others, I shall refrain from striking out Issues one, two, three and four and the attendant arguments but instead frown at the practice of formulating issues for the determination of the instant appeal recoursed to by the .appellant. The preliminary objection is accordingly not sustained. At the hearing of the appeal, the respective learned counsel for the appellant and the two sets of respondents adopted and relied on their various briefs of argument and urged the Court to either allow or dismiss the appeal without any amplification.
The learned counsel for the appellant, R.A. Ekpe Esq., sought and got leave of the Court to argue Issues 1, 2, 3 and 4 together as they are interrelated. He reproduced the following finding in the ruling of the Tribunal:’
“However, the issue raised by the 1st respondent in his application is jurisdictional in nature and going by line of judicial authorities, the issue of jurisdiction cannot be curtailed by the provisions of paragraph 49(2).”
and submitted that this finding is tantamount to a misdirection. He conceded that any trial conducted in the absence of jurisdiction amounts to a nullity.
He referred to the case of MADUKOLU V. NKEMDILIM (1962) ALL NLR (I’T. 2) 581 at 589 where the Supreme Court made the following observations that a Court is competent when:
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
Learned counsel argued that any other defect that cannot be subsumed under any of the aforementioned elements in the definition of jurisdiction can only be termed a mere irregularity which does not go to the rest of the suit or petition. He specifically referred to an election petition and submitted that the provisions of paragraphs 4(b), 49(2) and 49(4) of the 1st Schedule to the Election Act 2006 give the Tribunal the discretion to serve an election petition from any objection as to form. He argued that any defect to the suit or petition not covered by the definition of jurisdiction as enunciated in the MADUKOLU’S case (supra) will be classified as a mere irregularity or omission as to form which is curable by an amendment and/or the discretion of the Court or Tribunal as the case may be and relied on the case of OLAOSUN V. OGUNSEMI (2004) ALL F.W.L.R. (PT. 214) 68 and NIGERIA BOTTLING CO. LTD. V. OSOFISAN (2002) ALL F.W.L.R. (PT. 7) 118.
The learned counsel for the appellant submitted that the issue raised by the 1st respondent in his motion is not jurisdictional in nature as to divest the trial Tribunal from exercising its jurisdiction to entertain the petition and that the instant case cannot by any stretch of imagination be classified as a case of non-compliance with the mandatory provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006. He went on to refer to paragraphs 1 to 5 of the appellant’s petition at page 2 of the record of appeal and argued that a community reading of the averments therein together with paragraphs 14 and 24 under FACTS OF THE ELECTION AND GROUNDS UPON WHICH THIS PETITION IS BASED will reveal the holding of the election in Burutu North Constituency I on 14th April, 2007, the scores obtained by each participant/contestant and the person returned as winner of the said election is in compliance with paragraph 4(1)(a), (b),(c) and (d) of the 1st Schedule to the Electoral Act 2006. He, however, accepted that the names of the human candidates/persons who represented the political parties that participated in the election are absent. He contended at the Tribunal and still contends in this Court that the non-pleading of names of human candidates who contested the election in point is at worst a mere omission as to form which does not affect the competence of the petition as to divest the Tribunal of jurisdiction. He cited in support of his contention the cases of OLAOSUN V. OGUNSEMI (supra); SHITTA-BEY V. ATTORNEY GENERAL OF FEDERATION (1998) 7 SCNJ 264 and MADUKOLU V. NKEMDILIM (supra).
The learned counsel for the appellant strenuously argued the relevance of Form EC8E(1), that is to say the result sheet containing the names of the candidates, political parties and scores which the appellant flied along with the petition and upon which he averred that he would rely at the trial. He argued that the said form EC8E(1) which is in evidence as exhibit 7 ought to have been enough to supply the names of human candidates in compliance with paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006.
In view of the foregoing submissions, the learned counsel for the appellant urged the Court to resolve Issues 1 to 4 in favour of the appellant.
In response, the learned senior counsel. Chief E.L. Akpofure adopted the five issues identified by the appellant for the determination of this appeal. He also argued the first four Issues together. The learned senior counsel for the 1st respondent submitted that jurisdiction which is predicated on a challenge on the competence of the petition can even be raised in the Supreme Court for the first time and he relied on the Supreme Court case of DR. AUGUSTINE MOZIE & ORS. V. MBAMALU & ORS. (2006) 7 SC (PT. 11) 54 where it was held that competence of a person to file an action relates to jurisdiction and that it can be raised in the Supreme Court for the first time. He further submitted that the issue of jurisdiction is a threshold issue and a lifeline for continuing any proceedings. Jurisdiction is a fundamental matter and once it is apparent to any litigant that the Court may not have any jurisdiction, it can be raised even viva voce. He emphasized that raising issue of jurisdiction can be done at any stage of the proceedings and it can never be contended that it is too early or too late to raise it and he relied on the case of GALADIM A V. TAMBAI (2000) 11 NWLR (PT. 677) 1 at 18.
The learned senior counsel referred to the case of MADUKOLU & ORS. V. NKEMDILIM & ORS. (supra) heavily relied upon by the appellant’s learned counsel with particular reference to one of the determinant factors set out therein “that the action is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction” and submitted that the failure of the appellant to comply with paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006 is a failure of the action not having been initiated by due process of law and fulfillment of any condition precedent to the exercise of jurisdiction. The learned senior counsel contended that that defect in the appellant’s petition cannot by any stretch of imagination be described as mere irregularity which does not go to the root of the petition as being contended by the appellant. He went on to submit that the defect in point is subsumed by one of the determinants enunciated in the MADUKOLU V. NKEDILIM case (supra) which the appellant breached.
As regards the provisions of paragraphs 4(6), 49(2) and 49(4) of the 1st Schedule to the Electoral Act, 2006, the learned senior counsel submitted that the contention of the appellant at page 7 of his brief of argument that those paragraphs give the Tribunal a discretion to save an election from any objection is misconceived and erroneous. Furthermore, he contended that the appellant’s description of the noticeable defect in the petition is a defect in form is misplaced and a wrong interpretation of the law. He referred to the cases of MADUKOLU V. NKEMDILIM (supra), OLAOSUN V, OGUNSEMI (supra) and NIGERIA BOTTLING CO, LTD. V. OSOFISAN relied upon by the appellant in order to save the petition and argued that they are inapplicable for that purpose, He instead relied on the case of BUHARI V, OBASANJO (2003) 17 NWLR (PT. 850) 423 at 474/475, Based on this authority, the learned senior counsel submitted that the trial Tribunal was right when it held at page 364 of the record as follows:-
“However, the issue raised by the 1st respondent in his application is jurisdiction in nature and going by a line of judicial authorities, the issue of jurisdiction cannot be curtailed by the provisions of paragraph 49(2).”
As regards the interpretation of the word “MAY” used in a statute, the learned senior counsel submitted that the con in which the word is used must be looked into before it can be said to be mandatory or directory, He cited in aid the cases of OJONG V, DUKE (2003) 14 NWLR (PT. 841) 586 and DANLAMI V. DAMBO (2005) 1 FWLR (PT. 250) 1 at 14 where the expression “MAY” in paragraph 4(6) of the First Schedule to the Electoral Act 2002 was construed as mandatory or “SHALL”.
The learned senior counsel for the 1st respondent referred to paragraph 2 at page 11 of the appellant’s brief of argument where it was argued that evidence had been taken by the Tribunal in the course of dealing with the petition and that Form EC8(1) was admitted and marked exhibit 7 and that it was late for the respondents to raise objection on lack of jurisdiction of the Tribunal. He cited in aid of that submission the cases of KINGIBE V. MAINA (2004) (PT. 191) 1555 at 1589 and TERAB V. LAWAN (/992) 3 NWLR (PT. 231) 569. He however submitted that those two cases are inapplicable to the circumstances of the instant case because they were based on evidence led therein whereas in the instant case where the issue bothers on challenge to the jurisdiction of the Tribunal, the law is trite that only the petition and nothing can be looked into and considered to arrived at the merit of the applications to decline jurisdiction. He was of the view that the Tribunal’s recourse was right.
In response to the multiple issue 1, 2, 3 and 4, O.A. Adeyemi Esq., the learned counsel for the 20dtop the 11th respondents submitted, inter alia, that the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006 are mandatory and that failure to comply with them is not a mere irregularity but a defect that renders the petition incompetent and that any proceedings based on it is null and void. He further submitted by way of emphasis that non compliance with those statutory requirements which renders a petition defective are not mere irregularities as submitted by the appellant as any proceedings founded on such invalid petition is incurably defective and cited in support the case of EZEOBI V. NZEKA (1989) 1 NWLR (PT. 98) 47. All the subsequent submissions in behalf of the 2nd to the 11th respondents are not dissimilar from those made in behalf of the 1st respondent. He too urged the Court to resolve the four issues against the appellant.
I have carefully considered the state of the record as well as the submissions of the learned counsel in this appeal and I am of opinion that the main issue of moment relates to the purport of paragraphs 4(1)(c); 4(b), 49(1), 49(2) and 49(4) of the First Schedule to the Electoral Act 2006.
It is pertinent to reproduce the provisions of the above mentioned paragraphs for ease of reference~ Thus:
“4(1) An election petition under this Act shall:………………….
(a) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(b) 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.” (Underlining for emphasis)
“49(1) Non compliance with any of the provisions of this Schedule or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit and just.
(2) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.
(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by Tribunal or Court.” (underlining mine for emphasis)
The main grouse in this appeal is that particularly paragraph 5 of the appellant’s petition did not comply with paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006. The said paragraph already reproduced (supra) sets out the determinant factors for a valid petition which confers jurisdiction on a Tribunal or Court. The ease of MADUKOLU V. NKEMDILIM (supra) has set out the determinants for making a Court competent. This aspect has been dealt with in the submissions of the learned counsel for the appellant and the two sets of respondents in which they consensually agreed that the factor that is relevant to the instant ease is that the ease comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. The appellant, however, different from the respondent when he held the view that that condition precedent has been whittled down by paragraphs 4(6) and 49(1),(2) and (4) of the 1st Schedule to the Electoral Act 2006. He argued that the defect occasioned by paragraph 5 of the petition is merely as to form or mere irregularity. I entirely agree with the submissions of the learned counsel for the two sets of respondents that failure to comply with paragraph 4(1)(c) (supra) is a failure of the action not having been initiated by due process of law and fulfillment of any condition precedent to the exercise of jurisdiction. The defect which is borne out in paragraph 5 of the petition where the petitioner/appellant apparently failed to plead the names of the “human candidates” who scored the votes set out thereat cannot by any stretch of imagination be termed a mere irregularity which does not go to the root of the petition as contended by the appellant at page 7 of his brief of argument. The defect in point robbed the trial Tribunal the requisite jurisdiction to deal with the petition of the petitioner’s petition.
A perusal of the principle enunciated in the MADUKOLU V. NKEMDILIM CASE (supra) where three factors have to be satisfied by a litigant before jurisdiction is conferred on a Court to make it competent. These three factors or determinants are conjunctive in their operation. It is trite that any defect in competence is fatal for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication.
I observed that the learned counsel for the appellant made concerted efforts or strenuously argued on the purports of paragraphs 4(6), 49(2) and 49(4) of the Electoral Act 2006 that the Tribunal could use its discretion to save the instant petition from the objections raised by the respondents. He particularly urged the Tribunal to tag the obvious defect as a defect in form. I agree with the submissions of the learned counsel for the respondents that reliance placed on the cases of OLAOSUN V. OGUNSEMI (supra), NIGERIA BOTTLING CO. LTD. V. OSOFISAN (supra) is nor applicable because the defects therein did not touch on jurisdiction but on procedure or fom1 wherefor such defects could be classified as mere irregularities or omissions as to form which are curable by amendments or invocation of the discretion of the Court or Tribunal. The Instant case instead bothered on challenge to the jurisdiction of the Tribunal. Jurisdiction is the very basis on which any Tribunal or Court tries a case. It is the lifeline of all trials.
A trial without jurisdiction is a nullity. The importance or fundamental nature of the issue of jurisdiction in Court proceedings is the reason why it can be raised at any stage of a case be it at the trial, on appeal to the Court of Appeal or even in the Supreme Court. It can never be contended that it’ is too early or too late to raise it. It can even be raised viva voce or even suo motu by the Court provided the other party is given the opportunity to respond. See PETROJESSICA ENTERPRISES LTD. & ANOR. V. LEVENTIS TECHNICAL CO. LTD. (1992) 5 NWLR (I’T. 244) 675 at 696; (1992) 6 SCNJ 154 at 166/1267; STATE V. ONAGORUWA (1992) 2 NWLR (PT. 221) 33 at 48; GALADIMA V. TAMBAI (2000) 11 NWLR (PT. 677) I at 18.
What is the effect of paragraph 49 and its ramifications of the 1st Schedule to the Electoral Act 2006 which the learned counsel to the appellant saw as a panacea to the defect to jurisdiction occasioned by paragraph 5 of the appellant’s petition? A similar situation arose in the case of BUHARI V. OBASANJO (2003) 17 NWLR (PT. 850) 423 at 474-475 where the appellant contended that the petition ought to have been saved by the provisions of paragraph 49(1) to (5) of the 1st Schedule to the Electoral Act 2006 which in pari materia to provisions of paragraph 49(1) to (5) of the Electoral Act 2002 which was extant law at the time the said case was instituted. The learned President of the Court of Appeal at pages 474 and 475 said:
“In the present case therefore, notwithstanding the provisions of paragraph 49(2), (3) and (5) of the 1st Schedule to the Electoral Act, heavily relied upon by the learned senior counsel to the petitioners, the jurisdiction of this Court to determine whether or not it has jurisdiction to hear and determine the petitioners’ petition in the form it is being questioned by the respondents as to its competence” cannot be curtailed on the grounds being relied upon by the petitioners in the application or preliminary objection. With the position of the law on the issue of jurisdiction, the need to decide now whether or not the respondents had taken fresh steps in the proceedings after becoming aware of the defects in the petition is not necessary as the respondents’ right to raise the issue of jurisdiction as contained in their preliminary objections now being objected to cannot be defeated by those provisions of paragraph 49(2), (3) and 5) of the 1st Schedule to the Electoral Act 2002.”
The decision appears to have laid to rest the issue that defect vis-a -vis jurisdiction cannot be curtailed. The view of the trial Tribunal expressed at page 364 of the record of appeal is in my opinion impeccable. The view reads:
“However, the issue raised by the 1st respondent in his application is jurisdiction in nature and going by the line of judicial authorities, the issue of jurisdiction cannot be curtailed by the paragraph 49(2).”
The appellant cannot avail himself of paragraph 4(6) of the 1st Schedule of the Electoral Act 2006. The contents of the said paragraph has already been reproduced. Thus, the paragraph in point clearly states that 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.
It is trite to say that where the word “may” is used in a statute the con in which the word appears must be looked into before it can be said to be mandatory or directory. See ATAYE FARMS LTD. V. NIGERIA AGRICULTURAL BANK LTD. (2003) FWLR (Pt.172) 1864.
Subparagraph 6 of paragraph 4 (supra) clearly states that if an election petition fails to conform with subparagraph (1) of paragraph 4, such a petition is defective. Subparagraph (1) referred to relates to the mandatory contents of a petition. It is utterly irregular in the prevailing circumstances where the election petition is defective to make the attendant consequence of such defect discretionary which the word “may” connotes. I shall not differ from the decisions of Superior Courts of record which construed the expression “may” in paragraph 4(b) of the Electoral Act 2002 as mandatory. See the cases of OJONG V. DUKE (supra) and DANLAMI V. DAMBO (supra) at page 14.
In retrospect, i hold that there is no merit in Issues 1, 2, 3 and 4 and they are resolved against the appellant.
On Issue 5, the learned counsel for the appellant submitted that the Tribunal in its ruling delivered on 12th September, 2007 failed to resolve it as to whether the none pleading of names of candidates was fatal even where the basis of the petitioner’s complaint is on the fact that there was no election in Burutu North Constituency I into the Delta State House of Assembly and the issue of votes casting could not arise.
In the instant case, the learned counsel for the appellant argued that the petitioner copiously pleaded that there was no election in Burutu North Constituency I into Delta State House of Assembly on 14th April, 2007 because the 4th respondent failed to provide the electoral materials needed for the conduct of the election and referred to paragraphs 2, 3, 4, 8(a), 9, 14, 15, 17, 18, 19, 20, 21 and 22 under FACTS ON THE ELECTION AND GROUNDS UPON WHICH THE PETITION IS BASED in the petitioner’s petition at pages 2 to 4 of the record of appeal. He further submitted that non-resolution of this salient issue by the Tribunal occasioned a miscarriage of justice against the appellant. He argued that if the Tribunal had properly resolved Issue 5 in view of the authority of OGBEJDE V. OSULA (2004) FWLR (PT. 191) 1609, it would have arrived at a different conclusion and urged the Court to resolve the said issue in favour of the appellant.
In response, the learned senior advocate for the 1st respondent submitted that paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006 places a legal duty on the appellant to plead the scores (the number of votes cast at the election) of the candidates that participated in the election and not the political parties that did so.
The learned senior counsel went on to reproduce the Webster Dictionary definition of a “candidate” that is to say-
“a person who offers himself or is nominated for some post or office (especially in an election). ”
As regards the definition of a “political party” he referred to Section 229 of the 1999 Constitution where it states
“Political party includes any association whose activities include canvassing for voters in support of a candidate for election to the office of President, Vice President, Governor, Deputy Governor or membership of a Legislative House or of a Local Government Council.” (Underlining for emphasis).
He submitted that from the foregoing analysis of paragraph 4(1)(c) (supra) that what is contemplated therein is that what is required to be pleaded are the scores of the candidates that participated in an election and the person returned as the winner of the election. He pointed out that the provisions of paragraph 4(1)(c) (supra) as couched are to be conjunctively and not to be disjunctively read. He referred to page 368 of the record of proceedings which contain paragraphs 2, 14 and 24 of the petition and submitted that the purports of these paragraphs arc grounds questioning the election thus-
“(a) That the votes credited to the 1st respondent were not his lawful cast.
(b) That the reason for saying so is that there was no election.”
Learned senior counsel argued that in these premise the petition is directly challenging the lawful votes said to have been credited to the 1st respondent. In other words the ground on which the election of the 1st respondent is been questioned is that the 1st respondent was not duly elected by majority of lawful votes cast at the election. He therefore submitted that it is not correct as contended by the learned counsel for the appellant in his brief of argument under Issue 5 that the election is not being questioned on grounds which put the votes case in issue and that reliance placed on the case of OGBEIDE V. OSULA (supra) is therefore misplaced. He distinguished that case from the instant case. In the former case the ground for challenge was on disqualification whereas in the latter and instant case the grounds are questioning the return of the 1st respondent thereby putting the votes cast in issue.
It is pertinent for a candid consideration of issue 5 (supra) to reproduce paragraphs 2, 14 and 24 of the Petition. They read: “2. The 1st respondent was not duly elected by majority of lawful votes cast at the purported elected in that there was no election.
- Subsequently the 2nd to 11th respondents declared the 1st respondent duly elected as member of Delta State home (sic) of Assembly of Burutu North Constituency 1 wherein there was no voting in any wards of the said Local Government.
- Petitioner states that on the instruction of 1st respondent and his sponsor, 2nd – 11th respondents (sic) made up the election result to legalize the false and illegal declaration of 1st respondent as duly elected member purporting to represent Burutu North Constituency 1.” (Underlining mine for emphasis)
The submissions of the learned counsel for the 2nd to the 11th respondents arc in no way materially at variance from those of the learned senior counsel for the 1st respondent. Any review of them will, in my view, amount to expending useful time.
I find substantial merit in the submissions of the learned counsel for the two sets of respondents as they are impeceable. Thus, the averments reproduced above pointedly referred to votes cast which the appellant regarded as unlawful. The petitioner particularly referred to unlawful votes which the 2nd to the 11th respondents accredited to the 1st respondent thereby facilitating his return as the duly elected member of the Delta State House of Assembly of Eurutu North Constituency 1.
I also find no reason to disagree with the well considered view of the trial Tribunal at page 371 which reads:
“This Tribunal is of the candid view that it can do no more at this juncture than to uphold the submissions of the learned senior counsel on this point. Indeed the 1st respondent’s application which the 2nd – 11th respondents adopted or chose to abide by succeeds in its entirety.
The petition herein having been rendered incompetent for the reasons aforestated, divests this Tribunal of jurisdiction to entertain same. Consequently, the said Petition No, EPT/DT/HA/06/07 filed by the petitioner on the 10th day of May, 2007 is hereby struck out”
In the final analysis, all the five issues adumbrated by the appellant are seriatim devoid of merit as I resolve each of them against him (the appellant) I strike out the petition for want of jurisdiction and dismiss the appeal.
No order as to costs is made.
Other Citations: (2008)LCN/3018(CA)
