Hon. Engr. Bako Sarai & Anor V. Inusa Haruna & Ors (2008)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting in Kano in petition No EPT/KNS/HR/27/07 wherein the Tribunal, on 17th September 2007, struck out the petition filed by the Petitioners/Appellants dated 21st May, 2007.
The 1st Appellant, and 1st Respondent were candidates at the National Assembly i.e. House of Representatives Election which took place on the 21st April, 2007. Whereas the 1st Appellant contested on the platform of the Peoples Democratic Party, the 1st Respondent was the candidate of All Nigeria Peoples Party for the DAWAKIN KUDU/WARAWA Federal constituency in Kano State. At the end of the election, the 1st Appellant was said to have polled 22,298 votes cast while the 1st Respondent was said to have polled 46,600 votes whereupon the 3rd Respondent declared the 1st Respondent as duly elected by the people of that constituency having polled majority of lawful votes cast.
Against this declaration, the Appellants as Petitioners filed a petition before the Election Petition Tribunal sitting in Kano on the 21st day of May, 2007, alleging among other things, undue return of the 1st Respondent as the winner of the said election and urging the Election Tribunal to void the return of the 1st Respondent.
In the course of proceedings, the 1st, 2nd, 68th – 78th Respondents filed a Notice of preliminary objection to the competence of the petition as well as the jurisdiction of the Election Tribunal to entertain same. Written addresses were filed by parties who also adopted same leading to the ruling delivered by the Tribunal on 17th September 2007 whereupon the Tribunal upheld the objection and struck out the petition. Being dissatisfied with the said ruling of the Election Tribunal, the Appellants have appealed to this court.
Notice of appeal in this case is dated 25th Sept. 2007 and filed on 26th Sept. 2007. It contains two grounds of appeal from which the Appellants have decoded two issues for determination. The issues are as follows:-
“1. Whether the provisions of the schedule to the Electoral Act 2006, that is, paragraph 4 sub- rule (3b) supports the decision in the Supreme Court case of Immanuel Okafor V. Augustine Nweke (2007) ALL FWLR (pt. 368) 1016 at 1025-1027.
- Whether the Election Petition Tribunal can give two different decisions based on the same facts before it”
On receipt of the Appellants’ brief of argument, the learned counsel for the 1st, 2nd, 68th – 75th Respondents also distilled two issues for consideration of this appeal as follows:-
“1. Whether the Election Petition Tribunal sitting in Kano was wrong in holding that the Election petition No EPT/KNS/HR/27/07 was not properly signed in accordance with the provisions of paragraphs 4 (3) (b) of the first schedule to the Electoral Act, 2006, relying on the Supreme Court decision in Okafor V. Nweke ALL FWLR (pt. 368) p. 1016 at pp 1025 -1027 paragraphs G-B (distilled from Ground 1 of the Grounds of Appeal).
- Whether the Election Petition Tribunal sitting in Kano was wrong in not following its earlier decision in Election Petition No. EPT/KNS/HR/17/07 between BAGWAI & ANOR V. GODA & 27 ORS. (Unreported) delivered on the 7th day of September, 2007 especially when there was a distinguishing feature between BAGWAI & ANOR V. GODA & 78 ORS and the instant case (culled from Ground 2 of the Grounds of Appeal)
The learned counsel for the 3rd to 67th Respondents also couched two issues which are in all four with that submitted by the 1st set of Respondents which I have already reproduced above. I have no intention of recasting the 3rd to 67th Respondents’ issues here as it will amount to an unnecessary repetition, From the issues formulated by the parties in this appeal, it seems to me that the issues as couched by the two set of respondents are more lucid and will certainly assist this court in arriving at a decision. That is not to say that the Respondents’ issues are different from that of the Appellants. They convey the same meaning but that of the Respondents are more elegantly drafted and I am inclined to determining this appeal based on the issues as formulated by the Respondents, after all, as has been stated before now, a good issue edifies a brief and is a source of pleasure and inspiration to the owner of the brief. See Tobi: The Brief System in Nigerian Courts 1999 p. 29. Counsels are therefore advised to make their issues simple, concise and clear enough to enable the adverse party and the court to know the trend of the argument in the brief. Having said that, I now proceed to consider the argument of counsel in this appeal.
On the first issue, the learned counsel for the Appellants, referring to paragraph 4 Rule 3 (b) of the first schedule to the Electoral Act 2006, submitted that it is only the signature of the Petitioner or Petitioners or their Solicitor that is required to authenticate the petition filed. That where the name or names of the Petitioner(s) or their Solicitor are written at the foot of the Petition it is only then that it is required that each person should sign against his name. Furthermore, that the above provision requires that the petition be “signed only” wherein he referred to the case of Ibrahim & Ors. V. Sheriff & Ors (2004) I EPR, 215 at 220.
It was a further contention of learned Appellants’ counsel that the absence of the name or names of the Petitioner or Petitioners or Solicitor at the foot of the petition would not vitiate the petition provided there is “any signature” at the end thereof. More so, that it amounts to technicality the opinion of the court below that the signature on the petition does not show whether it is for the 1st Petitioner or for the 2nd Petitioner. He urged this court not to cave in to technicality, relying on the case of Dikko Yusuf & Anor V. Obasanjo & Ors. (2004) 1 EPR 467 at 478.
Furthermore, on the issue, learned counsel opined though erroneously, that by Paragraph 4 Rule 6 of the 1st schedule to the Electoral Act 2006, the petition should not have been dismissed but ought to have been struck out. The record shows that the Petition was struck out and not dismissed, it should be noted.
Finally, it was submitted that since the issue of signature was not raised in the response to the petition and that the Respondents having taken steps in the proceedings, cannot be allowed to benefit from any irregularity if at all there is one in accordance with paragraph 4 Rule 3 (b) of the 1st schedule to the Electoral Act, 2006. He urged the court to allow this appeal on this issue.
On the second issue learned counsel for the appellants submitted that the Tribunal cannot deliver two different judgments on the same facts as it did in petition No. EPT/KNS/HA/17/007 Abdulrazaq Ismail Bagwai & Anor. V. Sa’adu Yusuf Goda & 27 Ors, and the instant case. He cited the case of Nnonye V. Anyichie (2005) 2 NWLR (pt. 910) 623. That for the Tribunal to have relied on an affidavit as a distinguishing” factor between the former petition and the instant one was clearly outside the contemplation of paragraph 4 Rule 3 (b) of the 1st schedule to the Electoral Act, 2006, moreso, as there was no application to amend the said petition before the lower court. He urged the court to compel the Tribunal to follow the same principle it espoused to save petition No. EPT/KNS/HA/17/07 in the instant petition. He then urged the court to allow the appeal and remit the petition back for trial on the merit by another Election petition Tribunal.
In his reply, the learned counsel for the 1st, 2nd, 68th – 78th Respondents submitted on the first issue that the purport of paragraph 4 (3) (b) of the 1st schedule to the Electoral Act 2006 is to prevent the presentation of petitions by anonymous and unauthorized persons and that it is to ensure that those who sign petitions are identifiable and known natural persons who can be named and not artificial or fictitious. He contended that none of the two signatures on the petition satisfied the requirements of paragraph 4 (3) (b) of the 1st schedule to the Electoral Act 2006 for the purpose of making the petition to be competent before the Tribunal.
He submitted further that the lower court was right in rejecting the signature signed atop the firm of “DIKKO & MAHMOUD” relying on the Supreme Court case pf Okafor V. Nweke (2007) 1 NWLR (pt. 1043) 521 at 530 paragraphs F – H, 531 paragraphs C – E, 533 paragraphs A-C. He submitted further that the Appellants counsel failed to profer argument in support of the issue but veered into an idle interpretation of paragraph 4 (3) (b) of the 1st schedule to the Electoral Act 2006.
‘To further puncture the argument of Appellants counsel that “any signature” at the foot of the petition would suffice, the learned counsel for the 1st, 2nd, 68th – 78th Respondents submitted, cited and relied on the case of Nwancho V. Elem (2004) ALL FWLR (pt. 225) 93 that only persons named in paragraph 4 (3) (b) of the 1st schedule to the Electoral Act 2006 can sign a petition.
As regards the second signature on the petition, learned counsel submitted that a signature by an unknown person is no signature wherein he cited and relied on the case of Orizu V. Uzoegwu (1999) 6 NWLR (pt. 605) p. 32 at 42 paragraphs C – D.
On failure to raise the issue of irregular signing of the petition in the Respondents’ brief, counsel submitted that the issue of the competence of an action which affects the jurisdiction of the court can be raised at any time or at any stage of the proceedings and a party can hardly argue that it was too late in the day to raise such an issue, He cited the case of Buhari V. Obasanjo (2003) 17 NWLR (pt. 850) 423.
He urged the court to hold that the Tribunals’ conclusion that the two signatures are unidentifiable and not traceable to any particular individual in impeachable.
On the second issue, it was contended on behalf of the 1st, 2nd, 68th – 78th Respondents by way of a reply that it is not competent for the Appellants to begin to impugn the decision of the Election Tribunal in petition no. EPT/KNS/HA/17/07 as there is no appeal against that decision. Secondly that the Tribunal found a very vital feature with which it could distinguish the two petitions and has so distinguished.
As to whether the Tribunal can give two different decisions based on the same facts before it, he submitted that no two cases are exactly the same and that a court of law is allowed to distinguish where necessary. Where a tribunal’s attention is drawn to the decision of a higher court, that tribunal is bound to follow same, he opined. On the whole, he urged this court to dismiss this appeal.
The learned counsel for the 3rd – 6th Respondents also filed a brief in response to the Appellants argument. In view of the fact that the arguments of the 3rd -6th Respondents are substantially the same as that of the 1st, 2nd, 68th – 78th Respondents, I do not intend to make an elaborate reproduction of same here except to touch briefly on the key points in the argument.
On the 1st issue, it was contended for the 3rd – 67th Respondents that “any signature” by an unidentified person on a document amounts to no signature at all. The case of Nwancho V. Elem (supra) was cited in support. He urged this court to hold that the election Tribunal’s conclusion that the signature appearing at the foot of the petition is not traceable to any particular person(s) is correct and on the signature atop the name “DIKKO & MAHMOUD”, he urged the court, relying on the case of Okafor V. Nweke (supra) to hold that “DIKKO & MAHMOUD” is not a legal Practitioner and cannot possibly sign a petition on behalf of the Petitioner.
On the second issue it was submitted that it is not right to castigate the decision of the Election Tribunal without filing an appeal against same and that the Tribunal was right when it found a distinguishing factor between the two petitions and based its decision accordingly.
Finally, that the case of Ibrahim & Ors. V. Sheriff & Ors. (2004) 14 NWLR (pt.892) p. 43 cited by the appellants is not on all fours with this present case. He urged the court to dismiss this appeal.
Paragraph 4 (3) (b) of the first schedule to the Electoral Act 2006 provides as follows:-
“3. The election petition shall further:
(b) Be signed by the petitioner or all petitioners or by the Solicitor, if any named at the foot of the election petition.”
Let me say here that the above provision is intended to authenticate a petition that is filed. It is to ascertain the genuiness of the petition. It is mandatory and not discretionary. Thus an election petition which is either not signed at all or is improperly signed, to say the least, is invalid and should be struck out. Any document, election petition inclusive, which ought to be signed and is not signed, renders its authorship and authenticity doubtful. See Aiki V. Idowu (2006) ALL FWLR (pt. 293) p. 361, Nwancho V. Elem (2004) ALL FWLR (pt. 225) 107.
In the instant appeal, the petition which gave birth to this appeal is found on pp. 1-9 of the record of appeal. On page 7 there are two signatures. One is signed atop “DIKKO & MAHMOUD” while the second one is signed atop “PETITIONER”. It was the decision of the court below, following the apex courts decision in Okafor V. Nweke (supra) that “DIKKO & MAHMOUD”, not being a legal practitioner, cannot sign the petition. I need to emphasis here that an election petition can only be signed by the following persons, i.e.
- The Petitioner or
- The Petitioners or
- The legal Practitioner representing the petitioner or petitioners named at the foot of the petition (emphasis mine)
I think the issue as to whether DIKKO & MAHMOUD is a juristic person or legal practitioner has been laid to rest as even the Petitioners admitted on page 317 of the record of appeal that “it is common knowledge and we all know that DIKKO & MAHMOUD is not a juristic person”. This admission clearly knocks off the signature atop DIKKO & MAHMOUD. Moreso, the decision of the Supreme Court in Okafor V. Nweke also laid this matter to rest. In that case the Supreme Court held that:
“There is no doubt whatsoever that the motion paper giving rise to the objection as well as the proposed notice of Cross-Appeal and appellants brief in support of the said motion were all signed: J.H.C. Okolo SAN & Co. Learned senior Counsel for the appellants does not dispute this but stated that since there is a signature on top of IRC Okolo SAN & Co, it is necessary to call evidence to establish the identify of the person who signed the document …
The question that follows is whether J.H.C Okolo SAN & Co., is a legal Practitioner recognised by the Law? From the submission of both counsels it is very clear that the answer to that question is negative. In other words both senior counsels agree that J.H.C. Okolo SAN & Co is not a legal Practitioner and therefore cannot practice as such by say, filing processes in the courts of this country.
In conclusion, I agree with the submission of learned Senior Advocate of Nigeria for the Respondents that the processes filed in this application particularly the motion on notice filed on 19/12/05, the proposed notice of cross appeal and applicants’ brief of argument in support of the said motion on notice are incompetent in that they were not issued by a legal practitioner known to law and are consequently struck out”
I have quoted the apex court in extensor in Okafor V. Nweke (supra) just to show that the matter has been settled. I need to add that the purport of paragraph 4 (3) (b) of the 1st schedule to the Electoral Act 2006 is to prevent the presentation of petitions by anonymous and unauthorized persons. It is to ensure that those who sign petitions are identifiable and must be named at the foot of the petition. I think paragraph 4 (3) (b) of the 1st schedule to the Act by my own understanding and interpretation requires that the petition be signed by only persons specified therein and is mandatory. There is no room or option that it could be signed by any other person.
The signature signed on top of “DIKKO & MAHMOUD” falls short of the requirement of paragraph 4 (3) (b) of the 1st schedule to the Electoral Act because the signature is not that of any of the petitioners or that of their counsel. “DIKKO & MAHMOUD” by any stretch of the imagination cannot be a legal practitioner as it has neither been called to the bar nor enrolled in the Supreme Court of Nigeria to practice as such. So, I hold that the petition was not signed accordingly. The decision of the lower Tribunal in the matter is hereby affirmed.
I am now left with the other signature signed on top of the word “PETITIONER”. There are two Appellants in this appeal who were petitioners in the lower Tribunal: Hon Engr. Bako Sarai and the Peoples Democratic Party (PDP), a body corporate which can only act through its designated officials. The second signature is by an unknown person as same does not disclose the person who signed it.
There is no indication on the face of the petition or by any other revelation that it was signed by any of the petitioners. Let me emphasis that a signature by an unknown person on behalf of another is an incompetent signature. See Orizu V. Uzoegwu (1999) 6 NWLR (pt. 605)32.
It was the contention of learned counsel for the appellants that “any signature” at the foot of the petition will suffice. I however think differently. It does not accord with human reasoning and common sense that the legislature intended that the provision of paragraph 4 (3) (b) of the 1st Schedule to the Electoral Act can be carried out or performed by “any person” whatsoever. If that was the intension, why then did the Legislature mention the categories of people who can sign an election petition? I think it was to identify the person who signs a petition that the paragraph states that the person who signs the petition should be “named” at the foot of the petition. This instant petition unfortunately falls short of this requirement. See Nwancho V. Elem (supra). I need to add that an election petition which is neither signed by the Petitioner himself nor by his counsel is fundamentally defective. It is not a matter in the realm of technicality because a petition which is not signed cannot activate or invoke the jurisdiction of the court. It is on this note that I resolve this issue against the appellants and hold that the petition was properly struck out by the lower Tribunal for even if it was not struck out, the defect could not be remedied as the period for amending it under the Electoral Act 2006 had since expired.
Now, on the second issue, the counsel for the Appellants had argued that the Tribunal should not have used an affidavit as a distinguishing factor between its earlier decisions in Bagwai & Anor V. Goda & 27 Ors, in petition No. EPT/KNS/SHA/17/07 (unreported) delivered on 7/9/07 and the instant petition. The reason given is that paragraph 4(3(b) of the 1st schedule to the Electoral Act 2006 does not encourage a situation where an external document could be used to correct what is on the petition. The Respondents had argued that it is not competent for the Appellants herein to begin to impugn the decision of the Election Tribunal in petition no. EPT/KNS/SHA/17/07 when there is no appeal against the decision. Well I think the Respondents are right here. The issue as to whether the affidavit in that case was property relied upon by the lower Tribunal or not is not before us as there is no appeal against that decision and the court of appeal should not speculate on a matter not before it. If and when the matter is formally presented, we shall react appropriately. But for now, the issue remains speculative. But as to whether the Tribunal was right in using the affidavit as a distinguishing factor between Bagwai’s case and the instant one, my view is that courts of law are allowed to distinguish where there is need to do so. A court is not a robot that cannot think for itself. It is not a rubber stamp. A court, I would say is an institution for legal activism and as such, a court has the right and capacity to know whether a previous decision is on all fours with the one at hand or not. There is nothing wrong about this. The argument by the Appellants’ counsel that “courts are bound to follow their decision” is not sacrosanct else the court would have been turned into a static institution.
The appellants had called in aid the case of Ibrahim V. Sheriff & Ors (2004) 14 NWLR (pt. 892) p. 43. In that case, there were three petitioners. The 1st Petitioner signed the petition thus:
“Signed: Alhaji Kashim Ibrahim – Imam”
(see page 49 of the record).
It was held that since one of the parties had complied with the requirement relating to signing the petition, it would be inequitable and injustice to strike out the petition. Thus, though the other Petitioners did not sign the petition, this court saved the petition nevertheless. That was so because the signature was clear, legible and referred to an identifiable individual who was one of the Petitioners. This is not the case in the instant petition. So even as between Ibrahim’s case (supra) and the instant appeal, there is a distinguishing factor which is accordingly distinguished. The lower Tribunal, in my opinion properly and rightly distinguished the two cases in focus to arrive at another conclusion in the instant petition. I have no reason to disturb their Lordship’s findings and conclusion. In the final analysis, let me say that the Electoral Act 2006 does not intend a wide and an open- ended interpretation to paragraph 4 (3) (b) of the Act. Else, it will open a flood gate for people who did not participate in an election to sign election petitions, after all only their signatures can be seen (as in this case) while their identities remain in the realm of conjecture. This is a court of law and of facts, definitely not that of conjecture. As I said earlier, the decision of the lower Tribunal on this issue is impeachable and I so hold.
Form the foregoing analysis, I hold that this appeal lacks merit and ought to be dismissed. I accordingly dismiss this appeal and affirm the decision of the lower Tribunal.
I award costs of N20, 000.00 in favour of the Respondents except INEC.
Other Citations: (2008)LCN/2704(CA)
