Jerry Okolo V. Aniweta Victor Anyakwo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
The appellant was a candidate at the councilor election held on 5th December, 1998 in the Inland Ward V, otherwise known as Ward 12 for Onitsha North Local Government, under the platform of People’s Democratic Party, PDP. The 1st respondent contested the same election under the platform of Alliance for Democracy, AD, while the 2nd respondent stood the election under the platform of All People’s Party, APP.
The 1st respondent was declared duly elected whereupon, the appellant filed this appeal challenging the declaration of the 1st respondent and now sought to be duly elected at the Local Government Election Tribunal sitting at Akwa, in Anambra State. When the appeal was adjourned for mention on 20/1/99, learned counsel for the petitioner who is now the appellant, applied without supporting affidavit: that the matter be not terminated under paragraphs 44(5) and 16, of the 5th Schedule to 1998 Decree No. 36. He then applied for enlargement of time and urged the court to use its discretion under sub-paragraphs (4) – (6) of paragraph 44 of the Decree was not complied with and the tribunal disallowed the application and further ruled that the tribunal cannot extend the period for payment of filing fee of N600 payable on present action of petition as stipulated in paragraphs 3 and 37 of Schedule 5 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, hereinafter referred to in this judgment simply as the Decree. Accordingly held that the petition is incompetent and struck it out.
The petitioner was dissatisfied and so appealed to this court. His complaint is predicated on two grounds which read as follows:-
Ground one
“The tribunal erred in law by holding that failure by the petitioner to pay in full the fees prescribed by paragraphs 3 and 37 of Schedule 5 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 was fatal to the petition.
Particulars
(a) When the petitioner filed the petition the tribunal had not been constituted and no secretary of the tribunal posted to assess the fees payable on the presentation of the petition.
(b) Petitioners were directed to file their petition in the High Court to hold forth for the Election Tribunal.
(c) The Registrar of the Onitsha High Court where the petitioner filed assessed filing fees and security fees and the petitioner fully paid.
(d) When the tribunal was constituted at Awka the secretary of the tribunal re-assessed the fees and the petitioner also paid.
(e) The tribunal on the hearing date suo motu raised the issue that the petitioner had not paid in full both the filing fee and the deposit for security for costs and struck out the petition for non-compliance with paragraphs 3 and 37 of Schedule 5 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.
(f) The decision of the honourable tribunal is contrary to the decision of the Supreme Court in Nwobodo v. Onoh (1984) 1 SCNLR 1 and paragraph 50 (1) of the 5th schedule to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. See the exercise leaf attached.”
Ground two
The honourable tribunal erred in law by failing to recognise or take judicial notice of the fact that the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 1998 was made and circulated to the public after the elections for which the Decree was made and the consequences that followed from it.”
Particulars
(a) The Decree was signed into law by the Head of State purportedly on the 1st December 1998 and back-dated to 11/8/98.
(b) The election held on 5th December, 1998 was done without an enabling Decree circulated to the public.
(c) The consequences that followed from this anomaly were manifold:-
(i) The secretary of the tribunal to receive the petition and assess the requisite fees was not available and the High Court Registrar who had not seen the Decree stood in for him, received the petition and assessed the fees which the petitioner paid.
(ii) The tribunal secretary arrived the state capital on 20/12/98.
(iii) The tribunal member except the chairman were sworn in on 16/12/98.
(iv) The chairman came after this date and was sworn in.
(v) The time for the presentation of the petition expired on 18/12/98.
(vi) The tribunal failed to recognise these anomalies and take them into serious consideration before striking out the petition and the anomalies were not the fault of the petitioner and cannot be visited on him.
The relief sought by the appellant is for this court to set aside the ruling and send the petition back to hearing by the tribunal or in the alternative to determine the petition.
When the appeal came up for hearing on 25/1/99 both learned counsel for the 1st respondent Mr. A. Abuah and the learned Deputy Director of Civil Litigation in Anambra Stare Ministry of Justice, Mrs. M.C. Emengo complained that they were not served with complete courts processes. In view of this and due to the time constraint the appeal was adjourned to today for hearing. The appellant having already filed his brief of argument, the respondents’ counsel were ordered that they could try and file their respondents’ brief failing which the Court of Appeal could be entertained and heard today. The respondents having not filed such briefs this appeal is being heard without the respondents’ briefs.
Learned counsel for the petitioner/appellant, Mr. C.O. Anah, identified two main issues for determination. They read as follows:-
‘”1. Whether the failure by the petitioner/appellant to pay the full deposit for costs and the filing fees made the presentation of the petition incompetent and liable to be struck out.
- Whether the tribunal was not entitled to consider the fulfilment of the condition for the payment of the filing and hearing fees in the light of the peculiar prevailing circumstances at the time of the presentation of the petition.”
The learned counsel for the appellant, adopted his brief of argument and what he considered as peculiar prevailing circumstances were those situations and factors highlighted in his brief and as in the particulars of the two grounds of appeal.
These are clearly stated, I need not go back to them except if it will be necessary to do so by way of emphasis.
Learned counsel for the 1st respondent A. Abuah Esq. having adopted the appellant’s issues for determination submitted on the 1st issue that non-payment fully of the mandatory prescribed filing fees as provided by paragraphs 3 and 37 of the Decree has rendered the petition of the appellant incompetent. That since the fee of N600 payable at the presentation of petition was shortly N100,00 it cannot be said that the appellant has duly presented his petition as required by section 82 of the Decree. He held similar view in respect of security for costs of N1,000 instead of N3,000 as provided in paragraph 3(2) of schedule 5 to the Decree. He referred to the case of Israel Olu Olaniyonu v. Professor Awa & 2ors. (1989) 5 NWLR (Pt. 122) P.493 at pp. 501 and 504 per Akanbi J.C.A. Submitting further learned counsel for the 1st respondent said that the petition of the appellant was not presented within the time stipulated in paragraph 82 of the Decree, since the necessary fees were only paid after the filing of the petition. And that while paragraph 44(1) of the 5th Schedule to the Decree allows for enlargement and abridgement of time but this is subject to the S. 82 of the Decree. And that the expression “except otherwise provided” in sub-paragraph 1 of paragraph 44 of the 5th Schedule to the Decree has rendered it difficult for the court to use its discretion under that section. And therefore the Tribunal was correct to have refused the oral application made before it. He referred to the case of Attorney-General Anambra State v. Attorney-General of the Federation (1993) 6 NWLR (Pt.302) p.692 at p.708 ratio 19. That the expression, “subject to” implies that section 44 is subordinate to the strict and mandatory provision of paragraphs 3 and 37 of the 5th Schedule and s. 82. He urged this court not to consider the peculiar prevailing circumstances at the presentation of the petition as the clear and unambiguous provisions of the Decree cannot be challenged or altered under all circumstances.
Learned Deputy Director of Civil Litigation, Mrs. M. C. Emengo for the 2nd-8th respondents completely associated herself with the submissions of the learned counsel for the 1st respondent. She however cited the case of Chief Jim Nwobodo v. Chief C.O. Onoh (1984) 1 SCNLR 1; (1984) 1 SC p. 23 at p. 35. That if section, 127 (1) of the Electoral Act, 1982 if compared with paragraph 37 of Schedule 5 to the Decree No.36 of 1998, they are not in pari-materia. When two statutes are similar and identical the interpretation placed on one can be a precedent to the interpretation of the other. She says that paragraphs 3 and 37 of Decree No. 36 of 1998 having clearly fixed the prescribed fees to be paid, the court has not been left with any discretion rather than to subject, the appellant abide by it. She urged the court to dismiss the appeal.
Learned counsel for the appellant C.O. Anah Esq. allowed to reply, conceded that although there is no similarity in the provision of 1982 Electoral Act but, however, that Jim Nwobodo’s case makes a good comparison with Agomo v. Iroakazi (1998) 10 NWLR (Pt. 568) at p.176 and urged us to hold that this noncompliance which resulted in striking out of the petition due to non payment of adequate fees are irregularities which are minor attributable to the petitioner neither were they linked with him. Reference was also made to Ede v. The State (1988) 4 NWLR (Pt. 91) p. 722 at p. 724 ratio 8″, where it was held that when irregularities occur in the conduct of a case it will only vitiate the proceedings, if such irregularities occasions miscarriage of justice. He urged that the appeal should be allowed and set aside the tribunal decision.
As it has been observed the respondents who did not file any brief adopted petitioner’s brief and the two issues formulated for determination. I am of the opinion that issues No. 2 of the appellant’s brief viewed against the light of the peculiar prevailing circumstances at the time of the presentation of the petition may appear helpless and pathetic situation. In Olaniyonu v. Professor Anor & 20 ors (supra), the petitioner did not pay security for costs at the time his petition was presented; nor did he pay the required fees for service, publication and certificate of the petition at the time of presentation of the petition in accordance with sections 3(1)(2) (3) (4) to Schedule 3 of Election Decree No. 37 of 1987. Payments were only made some 15 days outside the one month allowed for presentation of the petition. It was held that the petition was not duly presented as required by law.
I have carefully considered the submissions of learned counsel, I have also read through the authorities cited and the relevant sections, paragraphs particularly paragraphs 3, 37, 44 and to the 5th Schedule to the Decree which have not been compiled with.
Plethora of cases where non-compliance having to do with non-payment of filing fees, security for costs, and other fees in accordance with the law, have rendered the petition not properly presented to make it be heard on its merit. I have earlier considered Olaniyonu’s case v. Professor Awa (supra) above. It was M.M.A. Akanbi J.C.A. (as he then was) who had this to say at p. 501.
“The issue of payment of fees or security for costs fundamental to the hearing of the petition. They are not mere matters of form. Without such payments, the petition has no legs to stand on, and it must necessarily collapse:’
At P. 504 he said further:
“… that even where the petition is filed without payment of necessary fees and the making of the deposit such petition cannot be deemed to have been presented. The fees must be paid before the petition is received and wrongful receipt of the petition by the registrar will not validate it.”
The appellant must have found himself in this helpless situation. The law may be rather too strict, but the provisions of paragraphs 3 and 37 of Schedule 5 to the Decree No. 36 of 1998 are clear and unambiguous and they ought to he strictly complied with.
While I do not find the facts of some of these cases cited, notably Nwobodo v. Onoh (supra); Agomo v. Attorney-General; Anambra State v. Attorney-General of the Federation (supra) and the various statutes considered on all fours and pari materia the strict requirements of compliance with the sections that deal with filing fees, security for costs and deposits, have been held to be quite fundamental to the presentation of petition.
I adopt and apply the observation and interpretation of those law and interpretation and hold that non-compliance with those provisions relevant to the instant appeal are fundamental to the hearing of the petition. In the circumstances, this appeal has failed and it is accordingly dismissed. The 1st respondent is entitled to costs which I assess at N2,000.00 while the 2nd-8th respondents are equally entitled to N2,000.00.
Other Citations: (1999)LCN/0586(CA)
