Hope Democratic Party Petitioner V. Independent National Electoral Commission (INEC) & Ors (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This Ruling is in respect of the motions brought by the 1st and 3rd Respondents respectively, and the objections filed by the Petitioner in relation to the said motions.

It is on record that counsel for the Petitioner, Chief A. A. Owuru walked out on this Honourable Court in the middle of proceedings on 19/10/2009. This was after the Court indicated that it would hear together, the motions of the 1st and 3rd Respondents and objections of the Petitioner in respect of the said motions.

I cannot but say that this act, in itself, is reprehensible and an aberration in this most noble and indeed, conservative profession and a clear negation of professional ethics as codified. It shows an absence of honour, integrity and all other requisite virtues that keep a legal practitioner honourable and within the bounds of the ethics of the profession.

I make bold to say that law practice is a preserve of individuals with both an innate and acquired culture of gentility and respect. It is not for the rude, brash, uncouth individual with gangster or tout-like tendencies. Upon call to bar, a lawyer who intends to stay on in the profession, more so those who desire to practice and appear in court ought to have shed any remaining vestige of these negative characteristics.

Any lawyer worth his certificate of call knows that virtually every process in the administration of justice has its own procedure. Both the Bench and the Bar are bound by known procedures and sanctions. Therefore any grievance whatsoever on either side can only be dealt with, in line with those defined channels and procedure. A grievance by a member of the Bar cannot and should not be expressed by walking out on the Court or Tribunal. Counsel’s duty to the client must never outweigh the duty to the Court. Indeed, should one outweigh the other, it must be the duty owed to the Court.

I refer to Rules 30, 31(1) and (2), 35 and 36 (b) and (e) of the Rules of Professional Conduct for Legal Practitioners, 2007 where all these are clearly spelt out.

“30. A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.

31. (1) A lawyer shall always treat the Court with respect, dignity and honour,

(2) Where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities,

35. A lawyer appearing before a judicial tribunal shall accord due respect to it and shall treat the tribunal with courtesy and dignity.

Rule 36 covers “Courtroom Decorum” in the following words: –

“36. When in the court room, a lawyer shall:

(b) conduct himself with decency and decorum, observe the customs, conduct and code of behaviour of the Court and custom of practice at the bar with respect to appearance, dress, manners and courtesy,

(e) not engage in undignified manner or discourteous conduct which is degrading to a Court or Tribunal.”

The act of walking out on a Court in the middle of proceedings in a matter in which the counsel is appearing is a discourteous conduct, which is certainly calculated to bring the Court into disrepute and deter the administration of justice.

This was a clear case of contempt in the face of the court (in facie curiae), I am mindful of the fact that the Honourable Justices of the Court of Appeal who sat on that day, were magnanimous enough not to proceed against counsel in this vein by asking him to show cause why he should not be committed for contempt. I agree that the power to commit is not retained for the personal aggrandisement of a judge or whoever mans the Court. The powers are created, maintained and retained for the purpose of preserving the honour and dignity of the Court. By tradition of the office, judges do eschew any type of temperamental outburst.

This leniency may be as a result of the Court’s understanding of their wide powers and the need to wield the powers with caution, See the decision in DIBIA v. IGWE (1998) 9 NWLR (Pt 564) 78 at 85 paras B – C.

Counsel’s conduct of walking out in the course of proceedings in which he is appearing, in this instance is an irresponsible act on the part of a supposed minister in the temple of justice. Without fear of repetition, I say that it is an act of interference with the due administration of justice both in this case and more generally as a continuous process.

This scurrilous act of scandalizing the Court must be prevented in future, not for the purpose of protecting either the Court as a whole or the individual judges of the Court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the Court, from the mischief they will incur if the authority of the Court or Tribunal is undermined or impaired.

I say no more on the matter.

The Order which the 1st Respondent seeks in the motion dated 4/5/2009 and filed on the same day is one dismissing the petition as abandoned and for want of jurisdiction.

The sole ground of objection as set out in the motion reads: –

“The Petitioner failed or neglected to apply for issuance of pre-hearing notice within seven days of the service upon him of the reply of the respondents and thus failed to comply with the mandatory provisions of Paragraph 3(1) of the Election and Court Practice Directions 2007.”

Chief Agabi, SAN, senior counsel for the 1st Respondent in moving the motion relied on the supporting and further affidavits filed in relation thereto. He also relied on and adopted the written address attached to the said motion as well as the Reply on point of law to Petitioner’s Written Address dated 12/5/2009 and filed on the same day.

In the introductory part of the written address of the 1st Respondent, it is disclosed that the 1st and 2nd Respondents filed a Joint Respondents’ Reply to the instant petition and that the process was served on the Petitioner on 7/8/2007. It is further disclosed that the instant petition by which the election and return of the 4th (now 3rd) Respondent as President and Commander-in-Chief of the Federal Republic of Nigeria is being challenged was served on 1st and 2nd Respondents on 21/5/2007. That the 1st and 2nd Respondents; filed a Notice of Preliminary Objection challenging the competence of the Petition. The said objection was upheld by this Court and the petition struck out. The Petitioner appealed to the Supreme Court and the Supreme Court set aside the order of this Court striking out the petition and ordered a retrial. It was said that the Petitioner did not apply to this Court for the issuance of a pre-hearing notice as required by the Practice Directions before the petition was struck out. That the 1st Respondent is by this motion challenging the jurisdiction of this Court to hear and determine the petition on the ground that the Petitioner having failed to apply to this Court for issuance of a pre-hearing notice is deemed to have abandoned the same. This is by virtue of Paragraph 3(1) and (4) of the Election Tribunal and Court Practice Directions, 2007 and in the light of the decision of the Supreme Court in Okereke V. Yar’Adua (2008) 12 NWLR (Pt. 1100) 95.

The Issue for the determination of the motion of the 1st Respondent as formulated in its written address reads: –

“Whether this Honourable Court is competent to entertain the petition, the Petitioner having failed to apply at the appropriate time or at all for the issuance of pre-hearing notice as required under Paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007.”

Dwelling on the Issue, it is submitted to the effect that pursuant to paragraph 3(1) of the Election Tribunal and Court Practice Directions (hereinafter simply called “Practice Directions”), the Petitioner is required to apply for the issuance of a Pre-Hearing Notice as in Form TF 007 accompanied by Pre-Hearing Information Sheet within seven days of the service on it of the Respondents’ Replies, It is submitted that the Petitioner failed to comply with the mandatory provision of paragraph 3(1) of the Practice Directions against the backdrop of the following: (i) that the instant petition was filed on 18/5/2007 and served on the 1st and 2nd Respondents on 21/5/2007; and (ii) that the said 1st and 2nd Respondents filed their Joint Reply to the petition on 3/8/2007 and served the same on the Petitioner on 7/8/2007- The 1st Respondent also said that as neither the Petitioner nor the Respondents in the petition applied for the issuance of a Pre-Hearing Notice, the Petitioner cannot be allowed to benefit from his default. The case of Okereke v. Yar’adua (supra) was cited to show the stance of the Supreme Court on the issue of Pre-Hearing Notice. The 1st Respondent not only submitted that the Petitioner is foreclosed from seeking for extension of time within which to apply for the issuance of pre-hearing notice but also stressed that there is no power in the Court to extend the time for taking the step. That the Practice Directions is very clear on the consequence of failure to apply for the issuance of pre-hearing notice by either the Petitioner or the Respondents and it is that the Court shall dismiss the petition as having been abandoned. The provision of paragraph 3(5) of the Practice Directions was also cited as showing the fundamentality of the provision relating to pre-hearing notice as the Court is rendered functus officio upon the dismissal of the petition for failure to comply with the provisions of the Practice Directions stipulating the time frame within to apply for the said notice, Citing the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 on when it can be said that a court has jurisdiction over a matter, the 1st Respondent said to the effect that the Petitioner has not complied with the condition precedent for the exercise by this Court of its jurisdiction over the instant petition. Concluding, the 1st Respondent urged the Court to dismiss the instant petition on the grounds (a) that the Petitioner is deemed to have abandoned the petition following his failure to comply with the provision of paragraph 3 of the Practice Directions relating to Pre-Hearing Notice; and (b) that the Court lacks the jurisdiction to hear the petition based on the fact that the Petitioner has not fulfilled a condition precedent to the assumption of jurisdiction.

The Petitioner on 5/5/2009 filed a process titled “Petitioner’s Written Reply to 1st Respondent/Applicant’s Motion on Notice dated 04/05/2009”. The process which is equally dated 5/5/2009 will hereinafter be simply referred to as “Petitioner’s Address dated 5/5/2009”. Paragraph 1 of the address is devoted to “Observation and Facts”. Therein, the Petitioner said that the motion of the 1st Respondent is diversionary and a complete abuse of court process as it is intended to pull the wool over the eyes of the court to prevent it from hearing the petition on the merit following the earlier unsuccessful attempt to prevent this. According to the Petitioner, the record of proceedings exhibited by the 1st Respondent to its application at page 182 shows that it (i.e. Petitioner) initiated a pre-hearing conference consequent to its earlier application on 6/6/07 to the secretary of the tribunal. That “form 007” (Hearing notice for pre-hearing session) dated 19/7/2007 was issued to the Petitioner to attend a pre-hearing session on the said 19/7/2007. That it was at this session Dr. Izinyon, SAN undertook to accept service on behalf of the 4th Respondent. The Petitioner also said that it was at the pre-hearing session of 19/7/2009 which it initiated that; Kanu Agabi, SAN for the then 1st and 2nd Respondents sought for 14 days extension of time to file their Joint Reply dated 3/8/2007 after the Petitioner had brought a motion for judgment. That when the petition next came up on 9/8/2007 (i.e. 2 days after the service of the Reply dated 3/8/2007 on the Petitioner), the same counsel sought for leave to move a motion to strike out the petition and which petition was eventually struck out in the Ruling delivered by the Court on 20/8/2007. The Petitioner further said that it duly filed “form IT 008” as a follow up to “form TF 007” on 17/7/2007. And that this was done, prior to the pre-hearing session shown to have been held at pages 48 – 49 of the Record of Appeal. The Petitioner said that if any part of the record and correspondences were not fully disclosed in the record of appeal, the error was that of the officer who compiled the records and not that of the Petitioner.

Paragraph 2 of the Petitioner’s Address dated 5/5/2009, is headed –

“Grounds for Objection and Issues Raised”.

The Petitioner submitted that the 1st Respondent’s objection is ill-conceived, misconceived and should be discountenanced as it only seeks to confuse and foist on the tribunal its resolve to frustrate a quick and expeditious hearing of the petition on the merit. It is the further submission of the Petitioner that the 1st Respondent cannot be heard to take advantage of its own default and tardiness in filing its Reply three months into the election petition proceeding and when it also did not allow the Petitioner the stipulated 7 days before moving the motion which resulted in the striking out of the petition on 20/8/2007. That assuming the rule in paragraph 3(1) of the Practice Directions was solely dependent on the 1st Respondent’s belated Reply and quick application to strike out the petition, then it was the said 1st Respondent that frustrated the petitioner’s due compliance with the said rule. The Petitioner said that paragraph 3 (1) of the Practice Directions however placed emphasis on “petitioner’s reply” and that the Petitioner being concerned about the expeditious hearing of the petition and in anticipation of a measure of delay and frustration from the Respondents took advantage of the provision of paragraph 3(1) in question by applying for the issuance of pre-hearing notice primarily to kick start the hearing process and get further directions from the tribunal following the attitude and delay on the part of the Respondents. That it is if the Petitioner had not initiated and applied under paragraph 3(1) as it did, that it would have been caught by the provision of paragraph 3(4). The Petitioner submitted that having satisfied all relevant conditions, it is entitled to proceed to hearing of the petition on the merit and conclude the necessary aspect of the pre-trial conference to fulfill all the purposes as set out in paragraph 3(2)(a-d) of the Practice Directions for a quick trial. It was submitted that the case of Okereke V. Yar’adua (supra) was not applicable given the Petitioner’s case and facts.

In the Reply on points of law to the Petitioner’s Written Reply dated 12/5/2009, it was submitted that the Petitioner was caught by his own haste, assuming (though not conceding that it filed an application for issuance of pre-hearing notice). In this regard the point was made that the Petitioners clearly showed in its written address that whatever application it made for the issuance of pre-hearing notice was made before the time allowed by law, in order to prod the Respondents. It was submitted that when the law directs that action be taken before a certain time, within a certain time, or after a certain time, then those who are required to take the action must comply with the provision of the law relating to time. The 1st Respondents said that in the instant case, the Practice Directions requires the Petitioner to apply for issuance of pre-hearing notice within seven days of the service upon him of the Respondents’ replies to the petition and that this he never did. It was submitted that an action taken before the time stipulated by law is as null and void as one taken after the time stipulated by law.

The 1st Respondent further argued that the action taken by the Petitioner was not even the action contemplated by law. In this regard was said that what the Petitioner applied for was the supply to him of “Pre-Hearing Form Sheets” which by any stretch of imagination cannot be construed as an application for the issuance of pre-hearing notice. Reference was made to the letter dated 6th June, 2007 addressed to the Secretary, Presidential Election Tribunal, Abuja and exhibited to the Petitioner’ Address dated 5/5/2009. It was stressed that the letter which was written by a lawyer and a very senior one at that, and in a proceeding which had to do with Presidential election before the Court of Appeal is to be construed strictly. The point was made that pre-hearing form sheets as applied for, would have to be delivered to the applicant but that pre-hearing notice would have to be issued to all the parties – Petitioner and Respondents respectively. It was also submitted that the application made to the secretary to the Tribunal, failed to meet the requirement of the law in that the mode of making the application to the court is specified in paragraph 6 of the Practice Directions to be by motion supported with affidavit in support. In the premises it was said that the application for pre-hearing form sheets was not an application anticipated by the law. Again it was submitted (though not conceding that the application was for issuance of pre-hearing notice) that the Petitioner’s application was still incompetent because at the stage it was purported to have been made, the petition was still to be served on the 4th Respondent and that the Respondents were yet to file their replies; and as the Petitioner’s motion for substituted service had not been moved or granted. The question was posed as to how it can be said that a pre-hearing conference was scheduled for 19/7/2007 when as at the said date the petition was yet to be served on the 4th Respondent and it was on the very 19/7/2007 that Dr. Izinyon SAN on the admission of the Petitioner himself undertook to accept service on behalf of the 4th Respondent. Stating that the Petitioner admitted the service on him of the 1st and 2nd Respondents Reply on 7/8/2007, it was submitted that time for the application for the issuance of a pre-hearing notice for a pre-hearing conference under the Practice Directions began to run from that date and would have expired on 14/8/2007. That time did not cease to run for the Petitioner to apply for the issuance of pre-hearing notice simply because application was made to have the petition struck out as incompetent. Referring to the insistence of the petitioner that pre-hearing conference was held on 19/7/2007 though he admitted that the 4th Respondent was served with the petition on the same day, the 1st Respondent asked how this could be reconciled with the position taken by the Petitioner that it could not apply for issuance of pre-hearing notice because an application to have the petition struck out was made before this could be done. The case of Ngige v. Obi (2006) 14 NWLR (999) 1 at 197 was cited to show that the court cannot have the Petitioner approbate and reprobate at the same time. Lastly, the 1st Respondent submitted to the effect that the application for issuance of pre-hearing form sheets having been signed by the law firm of A.A. Owuru & Co. should be discountenanced and that the Court should hold that there is no application whatsoever for the issuance of pre-hearing notice before it. The case of Okafor v. Nweke (2007) 3 SC Pt. II (page not supplied) in which it was held that a process signed by a law firm is null and void was cited in aid.

Apart from the Petitioner’s Address dated 5/5/2009, the Petitioner on 21/5/2009 also filed another process in relation to the respective motions of the 1st and 3rd Respondents. The process is titled “NOTICE OF OBJECTION PURSUANT TO S. 140(2) AND PARAGRAPHS 1 & 18 OF THE FIRST SCHEDULE OF THE ELECTORAL ACT 2006 ON COURT’S JURISDICTION TO HEAR RESPONDENT’S APPLICATIONS ON TECHNICALITIES TO STRIKE OUT THE ELECTION PETITION WITHOUT HEARING IT ON ITS MERIT AS ORDERED BY THE SUPREME COURT”. This process will hereinafter be simply referred to as “Petitioner’s Notice of Objection filed on 21/5/2009”.

The Notice reads: –

“Take Notice that before the hearing of the Respondents (sic) Motions on Notice the petitioner shall raise objections on the Court’s Jurisdiction to hear and entertain Respondent’s (sic) repetitive Applications on technicalities before this Court”.

The grounds on which the application is based as set out in the Notice are that in the circumstances of this case: –

“A. 1. This Honourable Court as presently constituted lacks the jurisdiction and competence to hear and determine the 1st & 3rd Respondents’ Motions on Notice or to Grant any of the reliefs sought therein.

2. The said Respondents repetitive Motions on Notice dated 4/03/2009, 8/05/2009 & 14/05/2009 are a gross abuse of this Honourable Court.
3. This Honourable Court presently is not well constituted as a Presidential Election Petition Tribunal to hear and determine the Petitioner’s Presidential Election Petition before it as stipulated by paragraphs 1 & 18 of the First Schedule and Section 140(2) to (sic) the Electoral Act 2006.

B. GROUNDS ON WHICH THE OBJECTIONS ARE BASED

1. The Respondents Motions on Notice and reliefs sought herein amounts to an Appeal to this Honourable Court over the Supreme Court’s decision that the Election (sic) be heard on its merits devoid of any legal technicalities.
2. The Respondents said Motions on Notice seek to Misinterpret (sic) the decision of the Supreme Court with the aim of stalling the hearing of the petition on its merit and striking same out on legal technicalities and on misinterpretation which they variously stated as follows: –

(a) That the petitioner did not include in its petition its candidate at the Election. When from the relief on the election Petition such is not necessary, (see S. 144 of the Electoral Act 2006).

(b) That the petitioner did not state the number of votes scored at the Election. When such is not necessary even though so stated in paragraph 13 of the Petition. The petitioners (sic) case remains that no votes can be ascribed to any candidate when the ballot paper where (sic) not serialized and bounded in booklet as required by law.

(c) That the Supreme Court’s order striking out the NAME OF 2nd Respondent, amounted to striking out of all the paragraphs and consequently the Election Petition. The Supreme Court (sic) order is clear NAME not PARAGRAPH, besides the 1st Respondent was always used interchangeably with the 2nd Respondent. The 1st Respondent is still a party to the Petition. The law does not allow a Respondent to apply to amend the Petitioner’s petition.

(d) That the Forms TF 007 and 008 for pre-conferences/session issued by the Secretary of the Presidential Election Petition Tribunal on 4th of July, 2007 attended by all parties was not properly initiated by the Petitioner. When that is not the case and self evident.”

3. It is trite law that an order/judgment of a court once made stays until set aside or varied. The Supreme Court order clearly states “It is further ordered that the petition be and is hereby remitted to the lower court to be heard on its merit before another panel to be constituted by the president of the Court of Appeal”.
4. The proceeding, the election tribunal practice direction 2007 and the enabling Electoral laws are unique and fall under a special jurisdiction of a Court/Tribunal specially constituted for the purpose of hearing an Election Petition.
5. Paragraph 6 of the Election Tribunal and Court practice Direction 2007 stipulates that all applications at Election Petition shall only be entertained at the pre-trial conferences/sessions. The last pre-trial session was last held on the 19/07/2007 in this Petition.
6. Where as in the instant case, there is no iota of law supporting a court process or where it is premised on frivolity or recklessness, an abuse of court process is established. See the Supreme Court decision in: –

MRS. SARAKI & ANOR VS. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 189, PARA E.

7. It is well established that where the jurisdiction of the court to entertain a case has been challenged, as in the instant case, the only jurisdiction available to it is jurisdiction to decide whether or not it has jurisdiction to deal with the case. See: –

(i) BARCLAYS BANK OF NIGERIA LIMITED V. CBN (1976) VOL. 2 FNR. PG 135.

8. It is trite law that issue of jurisdiction is very radical fundamental and crucial issue and once rose, it much (sic) be determined first before any further proceedings or exercise of judicial power in a case. See:-

(i) Matari V. Dangaladima & Anor (1993) NWLR Pt. 281 266 of 275

(ii) Shell Pet Dev. Co. Ltd V. Tilbo (1996) NWLR Pt. 445 657

TAKE FURTHER NOTICE that at the hearing of this objection the petitioner shall rely on the judgment and order of the Supreme Court dated 27th March, 2009 on record to seek for the Expeditious hearing of this petition on merit before a Presidential Election Petition Tribunal properly constituted.”

The Petitioner canvassed no separate arguments in respect of the objections set out in the Notice. It would therefore appear that all Petitioner’s counsel is saying is that whatever arguments/submissions he has in respect of the preliminary objections, he raised in relation to the motions of the 1st and 3rd Respondents respectively, are subsumed or embedded in the grounds of objections as reproduced above.

A written address in support of the 1st Respondent’s motion dated 4/5/2009 was filed on behalf of the 4th Respondent as shown in the petition – Alhaji Umaru Yar’adua. The said written address was filed on 7/5/2009. Therein learned lead senior counsel for the 4th Respondent (now 3rd Respondent) adopted in its entirety the submissions in the written address of the 1st Respondent in urging the Court to grant the said Respondent’s motion. Though additional submissions were made in the written address in question, they are in the same tenor with the submissions made in the 1st Respondent’s written address and in my humble view require no separate review. In the same vein, both Ozioko, learned lead counsel for the 2nd Respondent (i.e. PDP) and Erhabor of counsel for the 4th Respondent (i.e. Nigeria Police Force) did not oppose the motion of the 1st Respondent at its hearing.

In the 3rd Respondent’s Reply/Reaction to the Petitioner’s Notice of Objection filed on 21/5/2009, it was submitted amongst others that this Court in entertaining the motions before it will not be misinterpreting the judgment of the Supreme Court which directed the petition to be heard on the merit. That all the cases cited by the Petitioner are against the position it has taken, as all that the 3rd Respondent is saying by his motion, is that this Court does not have jurisdiction to countenance or adjudicate on the petition.

In the Petitioner’s Notice of Objection filed on 21/5/2009, it has been argued amongst others to the effect that this Court has no jurisdiction to entertain the respective motions of the 1st and 3rd Respondents as they amount to an appeal to this Court over the Supreme Court’s decision that the instant petition be heard on the merit and devoid of any technicalities; the said motions constitute an abuse of the process of court; and that the motions of the aforementioned Respondents seek to misinterpret the decision of the Supreme Court.

It is incontrovertible from the record of proceedings exhibited to the supporting affidavit of the 1st Respondent that the 1st and 2nd as well as the 4th Respondents in the petition as instituted, brought preliminary objections in respect of the petition, The three grounds of objection of the 1st Respondent read: –

“I. the Honourable Court lacks the jurisdiction and or vires to entertain the petition as constituted.

II. The petition has not disclosed any cause of action against the respondents as there are no grounds in the petition and the (sic) no particulars thereunder as constituted to show that the election was not conducted substantially in accordance with the principles of this Act or that non-compliance affected substantially the result of the election as envisaged under the provisions of Section 145(1) of the Electoral Act, 2006

III. The petition is a gross abuse of the process of the court.”

The grounds of objection of the 4th Respondent in the petition – Alhaji Umaru Yar’adua read: –

“1. The 1st, 3rd and 5th Respondents are not juristic persons or persons known to law.

2. It does not comply with Section 145(1), paragraph 4(1) of the 1st schedule to the Electoral Act, 2006.
3. The petition is not properly constituted as persons or institutions who are proper, necessary or desirable parties and whose presence are required for a just determination of the petition have not been made parties.
4. The petition is hypothetical, moot or academic,
5. The reliefs being claimed by the petitioner are at large and same vest no right or benefit in the petitioner,”

This Court upheld the preliminary objections of the 1st and 2nd Respondents as well as 4th Respondent and accordingly struck out the petition for being incompetent. (See pages 191 – 204 particularly pages 192 – 193; and 202 of Exhibit “INEC 1” attached to the supporting affidavit of the 1st Respondent for the above).

The Petitioner exhibited the Enrolment of the Judgment of the Supreme Court in respect of the appeal it lodged against the Ruling of this Court striking out its petition, Therein the Supreme Court ordered as follows: –

“1. that the appeal being meritorious is allowed;

2. that the Ruling of the lower court delivered on the 20th day of August, 2007 is hereby set aside, expect for the order striking out the name of the 2nd Respondent from the petition which is hereby affirmed.
3. that the petition be and is hereby remitted to the lower court to be heard on merit before another panel to be constituted by the president of the Court of Appeal; and
4. that there is no order as to costs.”

The order made by the Supreme Court for the hearing of the petition on the merits no doubt flows from the fact that the said petition was initially struck out without its being heard on the merit (i.e. without taking and evaluating of evidence adduced by parties in respect of their respective cases). In my considered view, the order cannot be equated with one of re-trial or for trial to start de-novo in which event hearing would simply commence anew upon the processes that the case was initially tried and without a re-visit to their competence. Indeed the Petitioner would appear to concede that this Court cannot just proceed to the hearing of its petition straightaway upon the processes before it without completing some pre-hearing formalities given the submission in paragraph 2.8 of the Petitioner’s Address dated 5/5/2009. Therein it is stated thus: –

“We respectfully submit that the petitioner having satisfied all relevant conditions is entitled to proceed to hearing on the merit of the substantive petition and conclude the necessary aspect of the pre-trial conference to fulfill all the purposes as set out in paragraph 3(2)(a-d) of the Election tribunal and the practice direction (sic) 2007 for a quick trial.”

A hearing on the merit naturally leads to a judgment on the merits. A decision is one on merit when it is rendered on the basis of evidence and facts introduced, it is a decision made after hearing arguments and investigation and where it is determined which party is right, as distinguished from a judgment rendered upon some preliminary or formal technical or procedural point, or default and without trial. See AKUNEZIRI V. OKENWA (2000) 12 SCNJ at 242.

It is glaring that the motions of the 1st and 3rd Respondents respectively, challenge the jurisdiction of this Court to entertain the instant petition on the merit.

In the case of EBHODAGHE V. OKOYE (2005) All FWLR (Pt. 241) 200 at page 224 the Supreme Court dwelling on “jurisdiction” stated thus: –

“There is no doubt that the question of jurisdiction is the cornerstone of all litigations. Various expressions have been used to describe it like fundamental, important, threshold, radical, crucial, etc. What all these expressions boil down to is that a court without jurisdiction to hear a case cannot make valid orders on matters arising in the this suit. In simple language, jurisdiction is the power or authority, which a court possesses to adjudicate over a particular matter or dispute. It is now axiomatic to say that orders made by a court in a matter in which it has no jurisdiction are nullities”.

See also the cases of COTECNA INTERNATIONAL LIMITED V. IVORY MERCHANT BANK LIMITED & ORS [2006] All FWLR (PART 315) 26 at 43; MADUKOLU V. NKEMDILIUM (1962) 2 NSCC 374 at 379-380; and IBEANU V. OGBEIDE (1994) 7 NWLR (PI. 359) 697 at 709.

Given the fundamental nature of jurisdiction/competence of the court on its adjudicatory powers, the appellate courts have consistently declared that not only can the issue of jurisdiction be raised at any stage of the proceedings and in any manner (i.e. informally) but also that the said issue can be raised for the first time on appeal. See ZENITH PLASTICS INDUSTRY LTD V. SAMOTECH LTD. [2008] All FWLR (Pt. 427) 176 at 193; and CHIEF EMMANUEL NWUDE V. CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION [2005] All FWLR (Pt. 276) 740 at 756. The appellate courts have also made various pronouncements concerning what is expected of a court once there is a challenge to its jurisdiction/competence in relation to any case, cause or matter before it. The decisions of the appellate courts in this regard, in the main, is that once an objection is raised on the lack of jurisdiction of the trial court, the said objection is the first matter to be heard before proceeding further in the case or embarking on the hearing of the case. In this regard see the cases of MKPEN TIZA V. BEGHA [2005] All FWLR (Pt. 272) 200 at 214-215 (SC) THE CHIEF JUDGE OF ABIA STATE, HON. JUSTICE K.O. AMAH V. NWANKWO ESQ. (2008) All FWLR (Pt. 411) 879 at 903 (CA); and URAM V. UDEKWE (2008) All FWLR (Pt. 421) 984 at 990-991.

The law is not only settled but also makes it mandatory that a court must consider and make a decision and pronouncement on all applications/motions pending before it. Failure to do this, it has consistently been held, amounts to a breach of fair hearing. See in this regard the cases of DR. JONATHAN COOKEY V. MRS. EVANGELINE FOMBO & ANOR (2005) 22 NSCQR 411 at 428; AFRO-CONTINENTAL (NIG) LTD & ANOR V. CO-OPERATIVE ASSOCIATION OF PROFESSIONALS INC. (2003) 13 NSCQR 186 at 196; and NEWSWATCH COMMUNICATIONS LTD V. ALHAJI ALIYU IBRAHIM ATTA (2006) 26 NSCQR 438 at 458-459 .

The settled position of the law as it relates to jurisdiction as stated above has not changed. And I do not understand the order of the Supreme Court, that trial of the instant petition on merit should be undertaken before another panel constituted by the President of the Court of Appeal, as meaning that this Court should not entertain the 1st and 3rd Respondents’ motions which challenge the jurisdiction of this Court to entertain the said petition on the merit even if on technicalities as the preliminary objections raised in the Petitioner’s Notice of Objection filed on 21/5/2009 portend. To this extent, I find the preliminary objection of the Petitioner on the grounds hereinbefore stated, to be an attempt to compromise the settled position of the law in relation to the issue of jurisdiction and when it can be raised in judicial proceedings.

From all that has been said in relation to the Petitioner’s Notice of Objection filed on 21/5/2009, I therefore find the objection to the hearing/determination of the motions of the 1st and 3rd Respondents respectively, to be lacking in merit and an attempt to circumvent the aforementioned position of the law in instances where jurisdiction is challenged. The Petitioner’s objections to the hearing of the said Respondents’ motions are accordingly overruled and dismissed. I will therefore proceed to consider the motions in question on their merits.

1ST RESPONDENT’S MOTION

The submissions of the parties in relation to whether or not an application for the issuance of pre-hearing notice was made by the Petitioner; and the effect of failure to so apply have been extensively reviewed before now.

It is no doubt very correct as stated in the 1st Respondent’s Reply on points of law to the Petitioner’s written address that the Petitioner has not maintained a consistent position on the issue as to whether or not it applied for the issuance of pre-hearing notice. This is because in one breath, the Petitioner said to the effect that it applied for the issuance of pre-hearing notice vide the letter dated 6/6/2007 addressed to the secretary to the Tribunal and which led to the pre-hearing conference held on 19/7/2007; in another breath the Petitioner said to the effect that it did not apply for the issuance of pre-hearing notice due to the late filing of the Joint Reply of the 1st and 2nd Respondents and also because the said Respondents made an application for the striking out of the petition before the expiration of the time within which it (i.e. Petitioner) could have applied for the issuance of the said notice; and yet in another breath the Petitioner said that it applied for the issuance of pre-hearing notice as at the time it did (i.e. 6/6/2007) being concerned about the expeditious hearing of the petition and in anticipation of some delay and frustration from the Respondents. That by so doing he took advantage of the provision of paragraph 3(1) of the Practice Directions primarily to kick start the hearing process of the petition.

The provision of Paragraph 3(1) of the Practice Directions reads:-

“Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after the filing and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.”

The letter addressed to the Secretary of the Tribunal and by which the Petitioner claimed to have applied for issuance of pre-hearing notice is dated 6/6/2007. In the Petitioner’s Address dated 5/5/2009 the Petitioner clearly concedes to the depositions in the affidavits in support of the instant application that the 1st and 2nd Respondents who filed a Joint Reply to the petition did so on 3/8/2007 sequel to extension of time by fourteen days within which to do this granted by the Court and that the said Reply was served on it (i.e. Petitioner) on 7/8/2007. In the further affidavit filed in support of the instant motion, it is deposed to the effect that each of the 3rd and 5th Respondents on 19/7/2007 was equally granted extension of time of fourteen and seven days respectively within which to file their Replies; while the 4th Respondent was served with the petition on the same day. It is to be noted that depositions to the above stated effect, were never controverted by the Petitioner. Indeed the said depositions find credence in the record of proceedings exhibited to the supporting affidavit of the 1st Respondent’s motion.

The question to then ask in the light of the provision of paragraph 3(1) of the Practice Directions, is whether the letter dated 6/6/2007 by which the Petitioner claimed to have applied for the issuance of pre-hearing notice is indeed an application for the issuance of pre-hearing notice in the circumstances of the instant petition?

I am of the considered view that the situation which the Practice Directions contemplates before application is made for the issuance of pre-hearing notice given the provision of paragraph 3(1) (supra) is one in which the pleadings in relation to a petition have been completed; or deemed to have been completed; due to the expiration of the time provided for the filing of Reply, and extension of time for that purpose having not been granted. It is indisputable from the facts hereinbefore stated that as at 6/6/2007 when the Petitioner applied for the issuance of pre-hearing notice as claimed by learned lead counsel – Chief Owuru, the petition was not only yet to be served on all the Respondents therein talk less of pleadings in the petition having been completed. In the same vein it is my considered view that it cannot be argued that pleading in the petition could be deemed to have been completed as at 6/6/2007 when the Petitioner purportedly applied for the issuance of pre-hearing notice given the uncontroverted fact that the 4th Respondent in the petition – Alhaji Umaru Yar’adua was not served with the petition until 19/7/2007.

Indeed I am of the considered view that before the Court can sensibly determine whether or not pleadings in the instant petition could be deemed completed/closed as at 6/6/2007 when the Petitioner purportedly applied for the issuance of pre-hearing notice to the Secretary to the Tribunal, the date of service of each of the Respondents with the petition must be made available/disclosed. The seven days within which the Petitioner is to apply for the issuance of pre-hearing notice would then be calculated from the date the Respondent lasted served with the petition should have filed his Reply. The burden of showing this, naturally, is on the Petitioner who claims to have applied for the issuance of pre-hearing notice in compliance with the provision of the Practice Directions relating to the same. Suffice it to say that the Petitioner never provided any evidence in this regard. I am aware that in the address in support of its motion, the 1st Respondent disclosed the date the petition was served on the 1st and 2nd Respondents to be 21st May, 2007. Even if this date is taken to be when pleadings in the petition closed as between the said 1st and 2nd Respondents and the Petitioner, and this is not conceded, it is still glaring that the application the Petitioner claimed to have made can still not be said to have been made in compliance with the provision of paragraph 3(1) (supra). This is against the backdrop that the application made by the letter dated 6/6/2007 was glaringly not made within seven days of 21/5/2007.

From all that has been said above, I therefore do not find the Petitioner to have made any application for the issuance of pre-hearing notice as dictated or contemplated by paragraph 3(1) of the Practice Directions. The letter dated 6/6/2007 addressed to the Secretary to the Tribunal on behalf of the Petitioner is not an application for the issuance of pre-hearing notice in the circumstances of the instant petition. The Petitioner having not made any application for the issuance of pre-hearing notice within seven days of the close of pleadings in the petition, therefore has nothing before this Court upon which a pre-hearing conference was at any time predicated in the petition or can now be predicated. The fact that an application for the striking out of the petition was entertained before the expiration of the seven days within which the Petitioner could have applied for the issuance of pre-hearing notice is of no moment as (i) time did not cease to run in the petition despite the entertainment of the motion; and (ii) the life of the petition was not terminated before the expiration of the said seven days.

The constitutionality of the Practice Directions has been laid to rest by the Supreme Court in the case of BUHARI V. INEC [2009] All FWLR (Pt. 459) 419. Likewise the Supreme Court in the case of OKEREKE V. YAR’ADUA (supra) and which case is also reported in (2008) All FWLR (Pt. 430) 626 held, inter alia, to the effect (i) that the Practice Directions applies to Presidential, Governorship, National Assembly and States Assembly Election petitions; (ii) that it is mandatory that where neither the petitioner nor the respondent files an application for a pre-hearing session the tribunal or court is under a duty to dismiss the petition as abandoned and that no extension of time to take that step shall be filed or entertained; (iii) that steps in relation to pre-hearing notice are conditions precedent to the hearing of any matter in relation to a petition and non-compliance with the steps will strip the court of the jurisdiction to entertain the petition; and (iv) that when a preliminary objection is upheld, the life of the suit in which it is taken is terminated and should be struck out.

Having come to the conclusion that the Petitioner did not apply for the issuance of pre-hearing notice as strictly stipulated by paragraph 3(1) of the Practice Directions in the instant petition, I not only resolve the Issue for the determination of the instant motion as formulated in the 1st Respondent’s written address in the said Respondent’s favour, but also find the objection of the said 1st Respondent to succeed. On the authority of OKEREKE V. YAR’ADUA (supra) this petition therefore cannot proceed to hearing on the merit and must be terminated at this stage.

3RD RESPONDENT’S MOTION

The 3rd Respondent/Applicant in the motion dated 5/5/2009 and filed on 8/5/2009 is – Alhaji Umaru Musa Yar’adua. He is shown as the 4th Respondent in the petition as remitted to this Court for hearing on the merit.

The Orders which the 3rd Respondent seeks in the instant motion are: –

1. Pursuant to the decision of the Supreme Court in appeal No: SC/251/07 on 23/3/09, AN ORDER striking out the name of the 2nd respondent, PROF. MAURICE IWU (CHAIRMAN INEC) from these proceedings.
2. Pursuant to (1) supra, AN ORDER striking out all paragraphs of this petition dealing with or touching or which allegations have been made against the said 2nd Respondent, particularly, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 16, 17, 21, 22 and 23.
3. Pursuant to (2) supra, AN ORDER dismissing and/or striking out this petition.
4. In addition and/or alternative to (1), (2) and (3) supra, AN ORDER dismissing and/or striking out this petition as:

i. Petitioner has not stated and/or pleaded the mandatory scores of the candidates pursuant to paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006.

ii. Petitioner has no locus standi to present this petition, having not stated the name of its candidate at the election.

The grounds of the application are: –

i. Petitioner filed this petition against five (5) Respondents.

ii. Respondents took objection to the joining of PROF. MAURICE IWU (CHAIRMAN INEC) as the 2nd Respondent on the ground that he is not a proper and or juristic person to be sued as a Respondent under the Electoral Act, 2006.

iii. The Court of Appeal agreed with the Respondents and the Supreme Court in its judgment dated 23/3/09, unanimously held that the 2nd Respondent as sued is not a juristic person.

iv. Several paragraphs of the petition are wholly or substantially devoted to the 2nd Respondent as a person and or as sued.

v. The scores of the candidates who participated in the election are not pleaded.

vi. The petitioner filed this petition as a political party, without pleading the candidate sponsored by it.

Learned senior counsel for the 3rd Respondent, Chief Wole Olanipekun, SAN, in moving the motion relied on the supporting affidavit. He also adopted the written address dated 5/5/2009 but filed on 8/5/2009 and 3rd Respondent’s Reply/Reaction to the Petitioner’s Preliminary Objection dated 22/5/2009 and filed on 25/5/2009 as his argument in respect of the motion. The Court was urged to strike out the petition.

The Issue for determination of the motion as formulated in the written address of the 3rd Respondent is “that having regard to the striking out of the name of the 2nd Respondent, whether it is not axiomatic or consequential that all the paragraphs of the petition relating to or concerning him should be struck out and, thereafter, the petition itself be struck out”.

Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 16, 17, 21, 22 and 23 of the petition were referred to as raising several serious allegations ranging from dereliction of duty to commission of crimes of fraud and forgery, dishonesty etc against the 2nd Respondent. Specifically it was said that paragraph 8 relates to fraud and forgery centred on the 2nd Respondent; while paragraph 13 tersely pleads the scores of the parties. The averment in the said paragraph is said to be specifically hinged on the 2nd Respondent. Relying on the provision of Section 141 of the Electoral Act, 2006 (which stipulates the period within which a petition must be presented from the date of declaration of the election result) it was submitted that it is incumbent on a petitioner to state in the petition, the holding of the election, scores of the candidates and the person returned. The case of Jemide v. Harriman & Ors (2004) All FWLR (Pt. 233) 1765 was cited to show that failure of a petitioner to plead the mandatory statutory requirements is fatal to the petition. The Respondent stressed the point being made to be that if all the paragraphs dealing with the 2nd Respondent are struck out as urged, then paragraph 13 which is one of them has to be struck out. That once paragraph 13 is struck out, it goes without saying that the petition is incompetent.

Dwelling specifically on all the paragraphs of the petition dealing with the 2nd Respondent, the settled position of the law was stated to be that once the name of a party is struck out from an action by an order of court, then the petitioner or plaintiff ceases to be dominus litis against the party so struck out. The cases of Young Shall Grow Motors Ltd v. Okonkwo (2002) 16 NWLR (791) 536; Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144 at 225 – 226; Amsa v. Cross Line Ltd. (2005) 14 NWLR (Pt. (46) 645 at 699; NMA v. Brawal Shipping Nig. Ltd. (1999) 8 NWLR (Pt. 695) 477 at 483 – 484; Haruna v. Madibbo (2004) 16 NWLR (Pt. 900) 487 at 579 – 580; and Kadzi Int’l Ltd v. Kano Tannery Co. Ltd (2004) 4 NWLR (Pt. 864) 545 at 524 (sic) – 575 were cited in aid of the submissions. The point was made that because the 2nd Respondent is the centre of gravity of the petition, the striking out or deletion of all the averment made against him, reduced the petition to a shell. It was stated that upon a holistic view of the petition, it was apparent that it will be an exercise in futility to continue with the hearing of the same, in the absence of the 2nd Respondent and or after the deletion of the paragraphs dealing with him, either alone or in conjunction with the other Respondents.

The question of locus standi of the Petitioner is premised on the fact that all the Petitioner had done, is to state that it is a political party that participated in the election without pleading the name of the candidate the Petitioner sponsored at the election. While stating that the Petitioner casually mentioned the name of one Ambrose Owuru as the Hope Democratic Party’s candidate, the 3rd Respondent reiterated the submission that the first and latter part of the said paragraph 13 made no pretence that it was basing the steps taken therein on the actions of the 2nd Respondent. It was submitted that if paragraph 13 was struck out, it follows that the locus standi of the Petitioner has not crystallized in the sense that it has no candidate at the said election. Citing Section 144(1) of the Electoral Act, 2006, it was further contended that a political party cannot participate in an election without sponsoring a candidate and or that it is only when a political party established that it sponsored a candidate at an election that it has locus standi to present an election petition. The Court was urged to strike out the petition given the lack of locus standi of the Petitioner to present the same and as the locus standi of the Petitioner is not only a fundamental jurisdictional matter, but also goes to the root of its competence to approach the court. The cases of A.G Adamawa v. A.G Federation (2005) 18 NWLR (Pt. 958) 581; and Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 69 were cited in aid. Furthermore, urging the Court to apply the decision of the Supreme Court in Buhari v. INEC (supra), the 3rd Respondent said that the cause of action against the 2nd Respondent not only vanished upon the striking out of his name as a party together with the averments relating to him but by extension, the entire cause of action in the petition disappeared upon doing this.

In the 3rd Respondent’s Reply/Reaction to Petitioner’s Notice of Objection filed on 21/5/2009, it was submitted that the action of the Petitioner in filing a motion in objection to a motion and/or an objection to an objection is unprecedented. Stating that none of the depositions in the supporting affidavit of the 3rd Respondent’s motion have been rebutted or denied, it was submitted that same are therefore taken as admitted. The case of Adefarasin v. Dayekh (2007) All FWLR (Pt. 348) 911 was cited in aid. Also the case of Manson v. Halliburton Energy Services Ltd. (2007) 2 NWLR (Pt. 1018) 211 at 227 – 228 was cited in aid of the submission that there cannot be an objection to an objection.

Reacting to the objection on the merit, it was submitted that this Court in entertaining the motion before it will not be misinterpreting the judgment of the Supreme Court which directed the petition to be heard on the merit. All the cases cited by the Petitioner it was submitted are against the position it has taken as all the 3rd Respondent is saying by his motion is that this Court does not have jurisdiction to countenance or adjudicate on the petition.

Section 287(1) of the 1999 Constitution was referred to as enjoining all authorities and courts subordinate to the Supreme Court to carry out the orders of the Supreme Court. It was submitted that as the Supreme Court has struck out the name of Prof. Maurice Iwu, this Court was duty bound to determine and pronounce on the effect of the striking out order. It was said that the Petitioner was under the erroneous interpretation of the order of the Supreme Court directing this Court to hear the petition on its merits as if the order enjoins the Court to conduct this case illegally and/or “unprocedurally” and/or without listening to the 3rd Respondent’s submissions, arguments and objections. It was further said that the Supreme Court fortunately never made such an order and in law cannot make it.

It was submitted that the Petitioner has no answer to the 3rd Respondent’s motion and the submissions in respect of the said motion deemed conceded given the election of the Petitioner in filing a notice of preliminary objection instead of a written address in compliance with the order made by the Court on 4/5/2009 that parties should file and exchange written addresses. The case of Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414 at 456 was cited in aid. The Court was urged to dismiss the preliminary objection and grant the 3rd Respondent’s application as the said preliminary objection is the petitioner’s response to the same.

It is indeed true that the Petitioner filed no response (i.e. written address) to the 3rd Respondent’s motion. This however does not ipso facto imply that the objections raised in the 3rd Respondent’s motion must be sustained without more. It is still for the Court to consider the merit and demerit of the objections for the purpose of sustaining or overruling them. See ODUNZE V. NWOSU [2007] All FWLR (Pt. 379) 1295 at 1314 (SC). This is more so as I had earlier said in this Ruling while dwelling on the Petitioner’s Notice of Objection filed on 21/5/2009 thus: –

“The Petitioner canvassed no separate arguments in respect of the objections set out in the Notice. It would therefore appear that all Petitioner’s counsel is saying is that whatever arguments/submissions he has in respect of the preliminary objections, he raised in relation to the motions of the 1st and 3rd Respondents respectively, are subsumed or embedded in grounds of objections as re-produced above” and thereafter considered the merit of the 1st Respondent’s motion on the basis of the content of the said Notice.

The position of the law as to the consequence of the striking out of the name of the 2nd Respondent from the petition is definitely as submitted by Chief Olanipekun SAN in the written address in respect of the motion. In the case of YUSUF V. OBASANJO [2004] All FWLR (Pt. 213) 1884 the Supreme Court dwelling on the consequence of striking out the name of a party from a petition per Kutigi, JSC (as he then was) at page 1920 said thus:

“Also on paragraph 17 of the petition, Mahmud Mohammed, JCA, again said in the lead ruling:

“Paragraph 17 of the petition on the other hand contains complaints against persons who are no longer parties to the petition. The preliminary objection on the competence of the paragraph is therefore hereby sustained and paragraph 17 of the petition is hereby struck out.”

Again I have closely read through paragraph 17 of the petition. It pleaded the non-qualification of the 3rd respondent, (Muhammadu Buhari) by reason of his membership of the Council of States and attending meetings up to and beyond 8th April, 2003. There is no doubt that 3rd & 4th respondents (Muhammadu Buhari and A.N.P.P.) had earlier been struck out for mis-joinder by the decision of this court in Buhari & Anor. v. Yusuf & Anor. (supra). I believe with the striking out of the 3rd respondent, paragraph 17 of the petition ceased to be material to the determination of the petition. The tribunal was therefore, right to have, struck-out paragraph 17 herein…

When a party is not properly joined in a suit and is struck out, any allegations made against him become irrelevant and incompetent.”

See also the case of MODIBO V. HARUNA (2004) All FWLR (Pt.238) 740 at 754.

I must however say that I do not understand the above mentioned cases as deciding that it is every paragraph of the petition in which the party struck out is mentioned that has to be struck out. It is my considered view that where an allegation is made in the instant petition against the 1st and 2nd Respondents jointly, all that has to be ensured at trial is that no evidence is led in relation to the 2nd Respondent. This is particularly against the backdrop that the 1st Respondent is constitutionally charged with the duty of organizing, undertaking and supervising Presidential Election amongst others under Part 1, Third Schedule of the 1999 Constitution.

The paragraphs of the petition which the 3rd Respondent wants struck out consequent to the striking out of the name of the 2nd Respondent as a party will now be considered bearing in mind the view that I expressed above.

They are paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 16, 17, 21, 22 and 23 of the petition.

The averment in paragraph 1 is to the effect that the Petitioner, a political party participated in and sponsored a candidate for the proposed Presidential election, That the election did not hold or was not conducted at all by the 1st and 2nd Respondents in accordance with the 1999 Constitution, electoral laws, rules and guide line of the proposed election.

The averment in paragraph 2 is to the effect that the Presidential election was purportedly held throughout the Federation on 21/4/2007. That the said election and all matters pertaining thereto were organized, conducted and supervised by the 1st Respondent, a body established by law and which the 2nd Respondent is the chairman.

In paragraph 3 it is alleged that the 1st and 2nd Respondents have a duty and obligation to conduct a free and fair election that will meet both local and international standards of credible election.

In paragraph 4 the allegation is that the 1st and 2nd Respondents did not conduct a free and fair election as the purported exercise was held “amidst violence, logistic problems and berserk allocation of votes by the 2nd Respondent despite the fact that no election was properly held and no votes cast as required by law”.

In paragraph 5 the allegation is that the 2nd Respondent on 23/4/2007 hurriedly announced a purported result of the election. Other acts of commission by the 2nd Respondent were detailed in (I – V) of the said paragraph.

In paragraph 6 the 2nd Respondent is alleged to have allocated votes to the 4th Respondent without recourse to the actual state of non- election etc, and that he announced the same. The figures awarded by the 2nd Respondent were alleged not to be the honest product of the election.

The averment in paragraph 7 is to the effect that evidence will be led to show that there was no normal voting at the election of 21/4/2007. That there was also no normal recording of votes as results forms were not cited at all by the Petitioner and other parties as well as their agents. That forms were only found with agents of 1st, 2nd and 3rd Respondents.

In paragraph 8 it is alleged that the result of the election as declared by the 2nd Respondent is a fraud and forgery. In the particulars of fraud and forgery supplied in the paragraph only the 2nd Respondent was mentioned.

In paragraph 9 the 1st and 2nd Respondents are alleged to have encouraged the corrupt practices that characterized the election and which led to its being aborted. This they are further alleged to have done, by their “shoddy arrangements” designed to achieve a predetermined result in favour of the 4th Respondent. The facts of the “shoddy arrangement” were catalogued.

In paragraph 13 the 2nd Respondent and chief electoral officer is alleged to have on 23/4/2007 declared candidates and their respective scores as arbitrarily allocated to them by him and these were pleaded. The names of candidates and their respective scores as declared by the 2nd Respondent were tabulated thereunder.

In paragraph 16 it is alleged that the 1st and 2nd Respondents are legally bound to be independent and neutral at all times in the performance of their statutory functions including the conduct of the presidential election. The Petitioner pleaded its reliance on the neutrality forms sworn to by the Respondents and gave them notice to produce the same at the hearing of the petition.

In paragraph 17 the Petitioner contends that the 1st and 2nd Respondents are constitutionally bound by guidelines and regulation issued by them to conduct the election in accordance with the power conferred on them by the constitution.

In paragraph 21 it is alleged to the effect that the ballot papers used for the election were not bound in booklet and numbered serially as mandatorily required by law. That this gave room for undue manipulation and perpetration of fraud on the Election Day. The 1st and 2nd were in the paragraph given notice to produce copies of ballot papers for the election.

In paragraph 22 it is contended that the 1st and 2nd Respondents did not conduct the proposed election or did not conduct the election in accordance with the constitution and other relevant laws/rules regulating the conduct of the same.

The contention pleaded in paragraph 23 is to the effect that the noncompliance with constitutional and statutory laws regulating the election was due to the mechanism for fraud implanted therein by the 1st and 2nd Respondents. That for this reason no candidate ought to have been returned.

The result of the exercise is that I am of the considered view that only the averments in paragraphs 4, 5, 6, 8 and 13 sufficiently relate to the 2nd Respondent to warrant their been struck out and the said paragraphs are accordingly struck out.

The questions which now flow from the striking out of the above stated paragraphs of the petition, having regard to the grounds of objection of the 3rd Respondent and submissions of Chief Olanipekun, SAN, hereinbefore reviewed are whether (i) the striking out of paragraph 13 has made the locus standi of the Petitioner not to crystallize in that it cannot now be said that the Petitioner sponsored a candidate for the election; and (ii) that the election petition is incompetent for not stating the holding of the election, scores of the candidates and the person returned as the winner of the election.

It is trite law that it is the case presented by a party in his pleading that discloses whether or not the party has locus standi. The claim of the Petitioner in the instant petition is not for the nullification of the return of the 3rd Respondent and declaration of its candidate in the election as the person who was properly returned. The claims are for “(i) an order of the tribunal that the election is invalid for reason of non-compliance with substantial sections of the electoral act (sic) 2006; and (ii) an order of the tribunal that the election is invalid for reasons of corrupt practices”. The Petitioner is a political party and in paragraph 1 of the petition it clearly stated that it participated in the election which produced the 3rd Respondent as the winner. I find the averment in paragraph 1 to sufficiently disclose the locus standi of the Petitioner particularly given the nature of his claims.

As for the Petitioner not stating the holding of the election, scores of candidates and the person returned as winner, I am of the opinion that the remaining paragraphs of the petition sufficiently disclose the fact that the election which the Petitioner is complaining about, is, the election alleged not to have been at all held and/or having not been held in accordance with the Constitution and electoral laws and regulation and this was the Presidential election of 21/4/2007 at which the 3rd Respondent emerged winner.

As for the Petitioner not stating the scores of candidates and that of the person returned, I cannot but again say that this cannot be fatal to the instant petition given the case of the Petitioner particularly its claims or reliefs. See OGBEIDE V. OSULA [2004] All FWLR (Pt. 191) 1609.

I am aware that the 3rd Respondent has argued to the effect that the instant petition will be lacking in a cause of action if the paragraphs he invited the Court to strike out were so struck out. The decision of the Supreme Court in the appeal the Petitioner lodged against the Ruling of this Court striking out the instant petition and remitting it for hearing on the merit before another panel of this Court is reported in (2009) 8 NWLR (Pt. 1143)-297 The Supreme Court at pages 331 – 333 held to the effect that the averments in paragraphs 21 and 23 of the petition raised a triable issue against the backdrop of section 45(2) of the Electoral Act 2006. I have not thought it fit that paragraphs 21 and 23 of the petition should be struck out given the striking out of the name of the 2nd Respondent as a party. Given this position, I do not see how I can properly find the petition not to disclose a cause of action.

From all that has been said, all the orders (main and alternatives) sought in the 3rd Respondent’s motion fail except the order for the striking out of paragraphs of the petition to the extent that paragraphs 4, 5, 6, 8 and 13 have been struck out.

However given the success of the motion of the 1st Respondent, the instant petition has to and is hereby struck out as the Court is stripped of the jurisdiction to entertain the same on the merit, given the failure of the Petitioner to have applied for the issuance of pre-hearing notice as strictly stipulated by paragraph 3(1) of the Practice Directions.

Petition is hereby struck out. I make no order as to costs.

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Other Citations: (2009)LCN/3455(CA)