Independent National Electoral Commission & Ors. V. James Iniama & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
OWOADE, J.C.A.
This is an appeal against the ruling of the Election Petition Tribunal, Akwa Ibom State, sitting at Uyo, presided over by Hon. Justice Nasir Ajanah, delivered on 16th July 2007.
By a motion on notice dated 25th June, 2007 and filed on 27th June, 2007. Learned counsel to the 2nd – 34th respondents (now appellants) sought sundry reliefs from the lower Tribunal including:
“(a) ………………
(b) ……………….
(c) An order striking out the petition in its entirety for being irregular and incompetent.”
The ground upon which the appellants rely for striking out the petition for in competency was that the petitioners failed to comply with the mandatory provisions of paragraphs 1(1)(c) and 2 of the Practice Directions 2007 as amended.
In pursuing his line of objection before the lower court, the Learned counsel to the respondent (now appellants) referred to paragraph 7 (xviii) of the petition where the petitioners pleaded unstamped voters card and register of voters for all the Local Government and said the documents were not listed in the list of exhibits (documents). Learned counsel for the appellants argued before the lower court, that the non-listing of documents pleaded in paragraph 7(xviii) of the petition has robbed the tribunal of jurisdiction to hear the petition as a condition precedent had not been fulfilled.
The lower tribunal dismissed this ground of objection by the appellants’ counsel and held starting from page 211 of the record that:
“Learned counsel had also in the alternative submitted that even if we accept that the said exhibit are lists of documents required to accompany the petition, that the petitioners have failed to list all the documents they are relying on as referred to in their petition. We are again unable to agree with the counsel on this issue. The practice direction particularly paragraph 1(1) (c) thereof has not only enjoined that a petition be accompanied with copies or list of documents that he intends to rely on at the hearing, paragraph 1(1)(b) has also enjoined that a petition shall be accompanied by written statements on oath of the witnesses and paragraph 4(1) and (3) has precluded a witness during his evidence-in-chief from being examined orally except, he is led to adopt his written deposition. In other words, the evidence to be proffered in court is as contained in the deposition. Therefore, we are of the opinion that it is from these depositions that counsel can point out to any document referred to therein, which is not displayed on the list as containing the provisions of the practice direction.”
The lower Tribunal continued:
“A party is not bound to lead evidence on every aspect of his petition and where there is any averment in the petition that is not referred to in the evidence or deposition that averment is deemed abandoned”.
And concluded:
“It is therefore, our opinion that the only way, in the circumstances of this case, that the court can draw an inference on what documents are to be relied on by the petitioner is from the deposition accompanying the petition as that is the evidence that they are allowed to proffer before the Tribunal. The reference to document pleaded in paragraph 7 (xviii) of the petition and not listed in the list accompanying the petition is therefore not fatal to the petition. We are also inclined to agree with the counsel to the petitioners that election petition must be handled with some measure of elasticity ”
It is against this ruling, that the appellants filed their notice and grounds of appeal on 24/7/2007 to wit:
“The learned Judges of the tribunal erred in law when unanimously held that the failure of the petitioners to list or attach copies of every document to be relied on at the hearing is not fatal to the petition but “that at best they may not be allowed to rely on them at the hearing”.
Before this court, the appellants’ brief of argument dated 24/9/2007 was filed on 27/9/2007. The joint brief of the 1st and 2nd respondents dated 2/10/2007 was filed on 3/10/2007. The brief of argument of the 3rd respondent dated 2/10/2007 was filed on 3/10/2007 while that of the 4th respondent also dated 2/10/2007 was filed on 3/10/2007.
It must be observed early that the reality of the contest in this appeal is between the appellants and the 3rd and 4th respondents on one hand and the 1st and 2nd respondents on the other hand. Indeed, the 3rd and 4th respondents in their respective briefs adopted the sole issue and the argument of the appellants and joined the appellants to urge this court to allow the appeal.
The sole issue formulated by the appellants is whether the failure of the petitioners’ petition to comply with the mandatory provision of paragraph 1(1)(c) of the Practice Direction 2007 and Order 6 Rule 8 of the Federal High Court Rules, 2000 did not rob the trial tribunal of jurisdiction by virtue of paragraph 1 sub-paragraph 2 of the Practice Direction 2007.
The learned counsel for the appellant submitted on the sole issue that by not including documents pleaded in paragraph 7 (xviii) to wit: register of voters for all the Local Government Area in Akwa Ibom State; the ballot papers cast at the polling units, form EC8A, EC8B, EC8C, EC8D and EC8E ….. ” in the list of document and not providing copies of the same, the petitioners that is the 1st and 2nd respondents in this appeal were in breach of the mandatory provisions of order 6 Rule 8 of the Federal High Court Rules, 2000 and paragraph I(l)(c) of the Practice Direction 2007.
Appellants counsel furthered that the lower tribunal was therefore in error when it held that “the reference to document pleaded in paragraph 7 (xviii) of the petition and not listed in the list accompanying the petition is not fatal to the petition” learned counsel for the appellant referred to the provisions of paragraph 50 of the first schedule to the Electoral Act, 2006, order 6 Rule 8 of the Federal High Court Rules, 2000, paragraph 1(1) (c) and 2 of the Election Tribunal and Court Practice Directions, 2007 and paragraph 49(1) of the first schedule to the Electoral Act, 2006.
The learned SAN for the appellant furthered by relying on the unreported decision of this court (per Omage JCA) in Imoke v. Odu (CA/C/112/2007 delivered on the 18th July, 2007) when Omage JCA stated at page 6 thus “In the Practice Direction referred to earlier in this judgment, the operative word is shall, which is a mandatory direction to the tribunal …..”
In the same vein, said appellants’ counsel, the word’ SHALL used in the accompaniment or listing of every document before the issue of the petition or acceptance of same is mandatory. A violation of same is fatal to the petitioner. The combined effect of the Federal High Court Rules and Practice Direction said counsel, is that the accompaniment or listing of documents to a petition is a condition precedent to a valid presentation of same and the consequences of violation of these mandatory provision is that the secretary shall not accept the petition for filing.
Learned counsel for the appellants referred us to a number of cases including Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207; NAA v. Okora (1995) 6 NWLR (Pt. 403) 510; Afribank (Nig.) Plc v. Akwara (2006) 5 NWLR (Pt. 974) 619, Ojugbele v. Lamidi (1999) 10 NWLR (Pt. 621) 167; Nonye v. Anyiche (2000) 1 NWLR (Pt. 639) 66; Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) 494; Udene v. Ugwu (1997) 3 NWLR (Pt. 491) 57 and lnakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 to demonstrate first that the Practice Direction has the force of law and second that when an action which required the fulfillment of a condition precedent or a pre-condition to the commencement of the action, that condition, must be fulfilled before the action can be validly commenced. Appellants’ counsel added that in relation to this appeal, what their Lordships of the lower tribunal did was to ignore the consequences provided in sub-paragraph (2) of paragraph I of the Practice Directions, 2007 as if it did not matter. The acceptance of the petition by the secretary, said counsel cannot by any stretch of imagination be deemed to have waived the statutory provision and relying on Ariori v. Elemo (1983) All NLR 1, (1983) 1 SCNLR 1 submitted that the Secretary’s act of accepting the petition was void ab initio.
Learned counsel for the appellant relying on the case of NDIC v. O’Silvawax Int’l Ltd. (2006) 7 NWLR (Pt. 980) 588 asked rhetorically
“Assuming but not conceding that the Petitioners’ not having complied with the law and so not bound to adduce evidence on documents not listed, what will be the fate of the petition that is largely complaining of over voting, non-stamping of their supporters voters cards since he will not tender any voter’s register?”
Appellants’ counsel continued with an answer and said that the failure of the petitioners to list every document as required by law is clearly fatal to their case. The law maker did not make a mistake when the word EVERY meaning “each one of all, the separate individual who constitute the whole, regarded one by one” is used and that omission to accompany or list even one document falls short of the requirement of the law.
Referring to the lower Tribunal’s approval of the dictum of Pats Acholonu JSC in the case of Obasanjo v. Yusuf (2004) 1 EPR 467, (2004) 9 NWLR (pt.877) 144 to the effect that “election” petitions must be handled with some measure of elasticity, appellants counsel submitted that the elasticity of the handling of election matters must be within the ambit of the law otherwise “sentiments which command no place in judicial deliberations will carry the day”.
Learned counsel for the appellants further supported his argument by reference to the Federal High Court Rules, 2000, which he said makes accompaniment of document to a process to be mandatory and that, that is the reason that any issuance of a writ not accompanied by documents pleaded, is in contravention of the rules and will be void.
In his oral presentation at the hearing of this appeal, learned counsel for the appellant further referred us to two additional authorities, the first is the decision of the Supreme Court in the case of City Engineering (Nig) Ltd. v. Nigerian Airports Authority (1999) 11 NWLR (Pt. 625) 76 at 89 where Iguh JSC made a distinction between a mere or unsubstantial technicality in proceeding that are competent and within the jurisdiction of a trial court and a substantial technicality which amounts to a condition precedent of the commencement of an action and which renders a proceeding manifestly incompetent thereby affecting the jurisdiction of the court and renders the same incurably defective.
The second case is that of Chief Emmanuel Osita Okereke v. Alhaji Umaru Musa Yar’Adua & 2 Ors a ruling of the Court of Appeal (Abuja Division) in unreported petition No CA/A/EP/4/2007 of 20th August, 2007, now reported in (2008) 6 NWLR (Pt.1082) 37 which the learned counsel for the appellant cited as authority for the proposition that failure to comply with the provisions of paragraphs 1(1) (c) and (2) of the Election Tribunal and Court Practice Directions, 2007 is fatal to the petitioners/respondents’ petition as it renders it incompetent.
The 3rd respondent in support of the appellants’ case merely adopted the arguments in the appellants’ brief while the 4th respondent also in support of the appellants’ case adopted the appellants’ brief and added that though in apparent contravention of paragraph 1(2) of the Practice Direction, the petition was accepted for filing by the tribunal secretary, this cannot cure the defect inherent in the petition. He also urged us to strike out the petition of the 1st and 2nd respondents for incompetence and non-compliance with the law.
In response to all of the above, the learned counsel for the 1st and 2nd respondents formulated the following issue for determination:
“Whether the five learned Judges of the tribunal were legally right when they resolved to hear the Election Petition No. EPT/AKS/2007 on its “merit” without allowing technicalities to fetter their jurisdiction.”
Learned counsel for the 1st and 2nd respondents submitted that paragraph 7(xviii) of the petition pleaded the following documents
(a) Unstamped voters card
(b) Register of Voters for all the Local Government Area in Akwa lbom State
(c) Ballot papers cast at the polling Units Forms EC8A, EC8B, EC8C, EC8D and EC8E and
(d) Summary of collation or election results for the
(e) Governorship Election in Akwa Ibom State of 14th April, 2007.
And that besides being specifically pleaded, the 1st and 2nd respondents gave notice to the appellants to produce. The said pleadings and the notice to the 4th respondent (agent of INEC) to produce said counsel, must be understood to mean:
(a) That the 1st and 2nd respondents wish to tender the documents they pleaded as evidence before the tribunal in support of their petition.
(b) That the appellants are legally and physically in custody of the documents.
Based on the above, 1st and 2nd respondents’ counsel submitted further that paragraph 7(xviii) would in law suffice as the “list of documents to be relied on at the hearing of the petition, that no particular or specific way, or manner or form of listing the documents is specified in either paragraph 1(1) (c) of the practice direction 2007 and that paragraph 7(xviii) does not disallow the inclusion of listed documents desired in the hearing of the petition from bowel of a pleading.
Learned counsel for the 1st and 2nd respondents submitted that there is an overwhelming display of listed documents that accompanied the petition and that in the absence of any particular or special manner of listing, the fact that each of the desired documents is contained or listed in paragraph 7(xviii) of the petition shows that the lower tribunal was right when it held that it was not “fatal to the petition.”
Learned counsel for the 1st and 2nd respondents furthered that interpreting paragraph 1(1)(c) in the manner suggested by the appellants will lead to absurdity because not only were the original documents in the lawful custody of the appellants, they were not in the custody of the 1st and 2nd respondents at the time of filing the petition. And added that sub-paragraph 2 of the Practice Direction envisage an administrative action within the discretion and province of the secretary to the tribunal, thus the acceptance or otherwise cannot affect the fate of a petition. A petition therefore, subsides or survives based on the structure content and overall compliance with the relevant applicable rules and the Practice Direction.
In the alternative, learned counsel for the 1st and 2nd respondents submitted should this court hold that the inclusion of specified documents in paragraph 7(xviii) does not amount to “listing as envisaged by paragraph 1(1) (c) of the Practice Direction, the consequence of disobedience is that documents not so listed cannot be “relied on at the hearing of the petition”. And such, counsel submitted cannot rob the tribunal of jurisdiction as several other documents (besides those enumerated in paragraph 7 (xviii) have been shown to be listed on pages 153 – 154 of the record. Furthermore, said counsel, the petition also contained “statements indicating the number of witnesses the petitioner intends to call in proof of the petition and written statements on oath of the witnesses in accordance with paragraphs 1 (1) (a) and (b) of the Practice Direction.
Learned counsel for the 1st and 2nd respondents said it is preposterous to contend that a possible failure to list a document as stated in paragraph 1(1) (c) of the Practice Direction should deny the tribunal its adjudicatory jurisdiction and that paragraph 1(1) (c) of the Practice Direction is not a cast iron provision as paragraph 4(8) provides a window that enables a defaulter to produce his hitherto avoided evidence.
After relying on a dictum of Pats-Acholonu JSC in Obasanjo v. Yusuf (2004) 1 EPR 467 at 536, (2004) 9 NWLR (Pt.877) 144, that some degree of elasticity should be accorded to Election Petitions, learned counsel for the 1st and 2nd respondents said that the Election Tribunal and Court Practice Direction, 2007 merely states the way and manner a particular rule of court shall be complied with, observed and obeyed. They do not have the authority of rules of court even though they are aid of the practice of court; Practice Direction, concluded counsel, is less efficacious than rules of court.
During the oral presentation of their briefs, counsel for the 1st and 2nd respondents also referred us to three (3) additional authorities in further support of his arguments. They are the cases of Saleh v. Monguno (2006) All FWLR (Pt. 322) 1411, (2006) 15 NWLR (Pt.1001) 26; Neji v. Chukwu (1988) 3 NWLR (Pt. 81) 184 at 209 and H.U.T. v. lfeanyichukwu Ventures (2005) All FWLR (Pt. 257) 1573 at 1582.
Before going into the main issue in this case, it is pertinent to comment on the submission of the learned SAN for the 1st and 2nd respondents that the listing of the documents in paragraph 7 (xviii) suffices for the purposes of “copies or lists of every documents to be relied on at the hearing of the petition” in paragraph 1(1) (c) of the Practice Direction 2007. This view cannot be right because the draftsman of paragraph 1 (1) (c) of the Practice Direction was aware of the requirement of pleadings before asking as in paragraph 1(1) (c) that “All petitions …. shall be accompanied …. by copies or lists of every document to be relied on at the hearing of the petition”. The listing of such documents in the petitioner’s pleadings clearly would not satisfy the requirement of listing in paragraph 1(1)(c).
In other words, the requirement of listing in paragraph 1(1)(c) is extraneous to the petitioner’s pleadings and cannot therefore be fulfilled or be construed as equivalent to the petitioner’s pleadings.
The main issue in this case seems to have been widened by the learned SAN for the appellants by construing same to be the meaning of “SHALL” in a statute, when in fact the crux of this appeal is the meaning of the word “SHALL” in the con of paragraph 1(1) (c) of the Practice Direction 2007.
There is no doubt that both in law and in the English language, the expression “shall” connote a command, a directory. For example, the Compact Edition of the Oxford English Dictionary Vol. II (OUP) (1988) pp. 2764-2766 devoted 29 paragraphs to the different usages of the word “SHALL” paragraph I and II which are of greater relevance for our purpose defines “shall” as
i. “An utterance of the word “shall” a command, promise or determination.
ii. In clauses expressing the purported result of some action or the object of a desire, intention, command or request.
It would be seen from the above that the learned SAN for the appellants was not wrong to have said that the word “shall” is almost always construed as mandatory. But then, the true meaning of the word “shall” in statutory construction can only be found in the con of the particular statute. This is because, the meaning of the word “shall” in a statute would depend on the consequences of disobedience to the command as provided by the statute itself.
Paragraphs 1 of the Practice Direction 2007 reads:
“Mode of filing a petition:
1(1) All petitions to be presented before tribunal or courts shall be accompanied by:
(a) statement indicating the number of witnesses the petitioner intends to call in proof of the petition:
(b) written statements on oath of the witnesses whose identity may be represented by an alphabet or a combination thereof; and
(c) copies or lists of every document to be relied on at the hearing of the petition
- A petition which fails to comply with sub-paragraph (1) of this petition paragraph shall not be accepted for filing by the Secretary.”
It seems to me that the general intention of the draftsman in paragraph 1 of the Practice Direction 2007 is to encourage and enforce “front-loading” as a principle of our modern civil procedure system so that a (defendant) would have full knowledge and adequate notice of the case of the (plaintiff) so as to avoid delay in trials and fulfill the objective of speedy administration of justice.
However, the consequences of the word “shall” both in paragraphs 1(1)(a) and 1(1)(c) of the Practice Direction are to be found in the paragraphs themselves. Thus, the word “shall” in paragraphs 1(1)(a) for example was deliberately watered down by the subjective requirement of “the number of witness … the petitioner intends to call in proof of the petition” and in paragraph 1(1)(c) also by the subjective expression “lists or every document to be relied on at the hearing of the petition.
The meaning of the word “shall” in paragraph 1(1)(c) of the Practice Direction is clearly provided for in the expression “to be relied on at the hearing of the petition”. The negative consequence of the disobedience of the petitioner to the expression of command “shall” in paragraph 1(1)(c) is that he would not be able to rely on any such documents not so listed at the hearing. Sub-paragraph 2 of paragraph 1 of the Practice Direction gave the Secretary to the tribunal, a statutory and ministerial duty not to accept a petition which fails to comply with sub-paragraph (1) of paragraph 1 of the Practice Direction. Where as in the instant case, the Secretary accepted a ‘defective petition” that is one which did not list every document to be relied on at the hearing, the consequence is still as contemplated by the wordings of paragraph 1(1)(c) itself, that is, that the petitioner would be taken not to have intended to rely on such a document not so listed.
As against the argument put forward by the learned SAN for the appellants, the incompetence or otherwise of a petition by virtue of the “accompaniment rule” in sub-paragraph 1 of the Practice Direction starts and ends on the table of the Secretary to the tribunal in sub-paragraph 2 of the paragraph. The courts are of course at liberty to determine the competence of a petition otherwise than for non-compliance with the provision of sub-paragraph 1 of paragraph 1 of the Practice Direction. But for the sheer fulfillment of the provision of sub-paragraph 1, or what I now refer to as the “accompaniment rule” in sub-paragraph 1, the determination of the competence or incompetence of the petition stops at the table of the Secretary to the tribunal. The only “punishment” for disobedience being the inability of the petitioner to rely on document not attached or listed as required by the provision.
Indeed, to have argued as the learned SAN for the appellants did, that failure to list every document renders the petition incompetent and deprives the tribunal of jurisdiction is going outside the specific penalty clause inferable from the use of the word “shall” in paragraph 1 of the Practice Direction 2007. It would be recalled that we have been admonished by Lord Campbell L.C. in Liverpool Borough Bank v. Turner (1861) 30 LJ. Ch. 379 at p. 380 that as “No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try and get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.”
Taking the whole of the scheme of the Practice Direction into consideration following the above quoted admonishment, it would indeed be seen that the provision of paragraph 4(8) of the same Practice Direction empowers the Tribunal to still grant leave in exceptional circumstances to receive in evidence documents which were not filed along with the petition in accordance with the Practice Directions.
Paragraph 4(8) reads:
“Save with leave of tribunal or court after an application has shown exceptional circumstances, no document, plan, photograph or model shall be received in evidence at the hearing of a petition unless it has been filed along with the petition or reply in accordance with those Directions.” There are at least two lessons from the provision of paragraph 4(8) of the Practice Direction in relation to this appeal. The first is that it confirms that the only consequence of disobedience of the word “shall” in paragraph 1 of the Practice Direction is that the petitioner would not be able to rely at the hearing on documents not so listed in compliance with the directive. The second is that it puts to lie the idea that the expression “shall” in paragraph 1 is “mandatory” rather than “directory”.
It must be stated, that it is the consequence of disobedience to the expression “shall” in particular statutes that led the courts into a necessary distinction between the use of the word “shall” as a mandatory or obligatory requirement and its use as a directory. Thus in the case of Ugwu v. rarume (2007) 12 NWLR (Pt. 1048) 367 at 448 Niki Tobi JSC said inter alia:
“It is clear from the above that whether it is mandatory or directory, the person must comply with the requirement, and sanctions for disobedience will follow. The only difference is that in the case of a directory requirement, failure to comply does not invalidate what follows, as opposed to mandatory requirement where failure to comply invalidates everything that follow. I have held in the light of the word “lower” in section 34(2) of the Act, the sub-section is mandatory.”
The use of “must” and “shall” in all enactments is prima facie, imperative and admits of no discretion. However, more than a century ago, Colerige C.J. laid down the principle that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. – see, Woodward v. Sarsons (1875) L.R. 10 C.P. 733 at p. 746; Alhaji Titilayo Anibi v. Jimoh Shotimehin (1993) 3 NWLR (Pt. 282) 461 at P. 472.
My Lords, in all the circumstance of this appeal, I have no hesitation in my mind to declare that the word “shall” in paragraph 1 of the Practice Direction 2007 is directory and not mandatory and having substantially complied with the said provision, there can be no suggestion that the petition of the 1st and 2nd respondents was incompetent.
At the hearing of this appeal, the learned SAN for the appellants flaunted before us with conviction, the unreported decision of the Court of Appeal (Abuja Division) in the case of Chief Emmanuel Osita Okereke v. Alhaji Umaru Musa Yar’Adua & 2 Ors (supra). With respect to the learned SAN for the appellants, the case can be distinguished from the present case and also the Okereke v. Yar ‘Adua’s case never decided that a breach of the provision of paragraph 1(1)(c) of the Practice Direction 2007 renders a petition incompetent as the learned SAN for the appellants suggested.
In Okereke v. Yar ‘Adua (supra), the petitioner/respondent was the candidate sponsored by the African Liberation Party (ALP) a registered political party at the 2007 Election into the office of President of the Federal Republic of Nigeria. The petitioner, first as applicant brought a motion on notice to amend his four paragraph petition which was not accompanied by any of the statements or documents specified in paragraph 1 of the Practice Direction. The petitioner’s motion was however met with a notice of preliminary objection by the 1st and 2nd respondents which challenged the competence of the petition on the ground that the petition breached the mandatory provisions of paragraph 4(1)(d) of the 1st schedule to the Electoral Act 2006 in that the petitioner did not plead any fact to support the grounds relied on in the petition and that consequently the petition disclosed no cause of action. It was also submitted that witness statement on oath was not attached to the petition and that paragraph 1 of the Election Tribunal and Court Practice Directions 2007 was not complied with. And that failure to comply with the provision of paragraph 1 of the Practice Direction renders the petition incompetent.
Abba-Aji, J.C.A. who read the ruling of the Court of Appeal based the incompetence of the petition solely on the ground that the petition failed to comply with the mandatory provisions of paragraph 4(1)(d) of the 1st schedule to the Electoral Act 2006, and held that the petition was devoid of any cause of action.
The learned Justice of the Court of Appeal wisely avoided any pronouncement on the import of the absolute non-compliance with the provision of paragraph 1 of the Practice Directions 2007 to the fate of the petition before the court. His Lordship’s reasoning could be captured in full at pages 12 – 13 of the unreported judgment (now reported at pages 63-64) thus:
“It is clear from the contents of the petition as reproduced above, that it is devoid of any cause of action. The petition failed to comply with the mandatory provisions of paragraph 4(1)(d) of the 1st schedule to the Electoral Act, 2006. By virtue of paragraph 4(1)(d) of the 1st schedule to the Electoral Act, 2006, an election petition under the Act, shall clearly state the facts of the election petition and the ground or grounds on which the petition is based and the relief sought. In the instant petition, there were no facts pleaded by the petitioner to support the three grounds of the petitions challenging the election and return of the 1st and 2nd respondents. It is trite that an election petition which does not conform to paragraph 4(1)( d) is defective and may be struck out by the court. In fact, a petition containing of only three paragraphs is to say the least short of facts and details sufficient enough to challenge Presidential election covering 36 States of the Federation and the Federal Capital Territory of geographical entity called Nigeria. Such a petition cannot be allowed to stand. It is certainly incompetent. The petition also fails to comply with the provisions of paragraph 1(1)(a),(c) and (2) of the Election Tribunal & Court Practice Directions, 2007, which provides as follows:-
- All petitions to be presented before the tribunal or court shall be accompanied by:
(a) list of all the witnesses that the petitioner intends to call in proof of the petition,
(b) written statement on oath of the witnesses; and
(c) copies or list of every document to be relied on at the hearing of the petition.
- A petition which fails to comply with sub-paragraph (1) of this paragraph shall not be accepted for filing by the Secretary.
In the instant petition, there was no list of witnesses that the petitioner intends to call in proof of his petition and written statement of witnesses on oath and copies or list of documents to be relied on for the hearing of the petition were also not attached to the petition as required by the Court Practice Directions, 2007. Though it is my candid view that the petitioner has the locus standi to present the petition by virtue of section 144(1)(a) of the Electoral Act, 2006, nonetheless, the petition as presently constituted is not only defective but incurably defective and ought to be struck out. The preliminary objection therefore succeeds and it is hereby allowed. The petition dated and filed on the 21st May, 2007 is hereby struck out for being incompetent.”
Clearly, the case of Okereke v. Yar’Adua (supra) is distinguishable from the instant case both in law and on facts. In law, because the finding of incompetence of the petition was based on the breach of paragraph 4(1)(d) of the 1st schedule to the Electoral Act 2006 and not on paragraph 1(1)(c) of the Practice Directions and on facts because the petitioner in the Okereke v. Yar’ Adua’s case failed completely to fulfill any of the provisions of paragraph 1(1)(a),(c) and (2) of the Practice Directions, 2007.
In my considered opinion, the Judges of the lower tribunal were not wrong in the instant case to have held that “the reference to document pleaded in paragraph 7 (xviii) of the petition and not listed in the list accompanying the petition is therefore not fatal to the petition.”
This appeal is devoid of merit and it is accordingly dismissed. There shall be costs of N10,000.00 in favour of the 1st and 2nd respondents only.
Other Citations: (2007)LCN/2530(CA)
