Joseph Olujimi Kolawole Agbaje V. Babatunde Raji Fashola (San) & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A.
The appellant, as a petitioner, filed a petition at the Governorship and Legislative Houses Election Tribunal of Lagos State challenging the election or declaration and return of the 1st respondent by the 2nd, 3rd and 4th respondents as the winner of the election and as the elected Governor of Lagos State in the nationwide general election held on 14th day of April, 2007. The appellant was nominated as the governorship candidate under the platform of Democratic People Alliance (DPA) while the 1st respondent ran under the platform of Action Congress (AC) in the said election. There were also about 20 other candidates for the same office who were sponsored or nominated by various other political parties and who contested in the election. Upon the declaration of the 1st respondent as the winner of the election, the appellant as one of the candidates who lost, was aggrieved by the result and he filed his petition complaining that the said election held in Lagos State on 14/4/07 was invalid by reason of non-compliance with the provision of the Electoral Act, 2006, the Constitution of the Federal Republic of Nigeria and the Common Law on election. The main grounds of his complaint in the petition was that after he had submitted 4 (four) copies of his photographs to be embossed in the ballot paper as prescribed by the 4th respondent, they were not so embossed by the said 4th respondent. Rather, the 4th respondent printed only the photographs of the 1st respondent and other candidates on the said ballot papers, and thereby discriminated against the appellant who was then denied a fair level playing ground and the opportunity afforded to the 1st respondent and other candidates whose photographs were printed on the ballot papers at or during the election. The appellant also complained against the inflation or deflation of votes or figures by the 4th respondent rendering the said election as badly conducted or not in accordance with the dictates of the law or principles of the Electoral Act (supra). Consequently, the appellant urged the tribunal to declare the Governorship Election of 14/4/07 held in Lagos State as invalid and void, to set aside or nullify it and order a new Governorship election to be conducted in the State in accordance with the law and principle of the Electoral Act, 2006.
On the above petition and grounds, the parties filed their respective replies and process. The 1st respondent filed his separate reply while the 2nd – 4th respondents filed their joint reply. A pre-hearing proceeding was conducted in accordance with the practice direction of the tribunal. The appellant gave evidence for himself and tendered several documentary exhibits. The 1st respondent and the 2nd – 4th respondents on the other hand, did not call any witness but relied on the evidence of the appellant. At the conclusion of hearing, the tribunal directed the parties to file their written addresses, which they duly filed. In its considered judgment delivered on 24/7/07, the tribunal found that the non-inclusion of the appellant’s photograph on the ballot papers even if establish is a mere noncompliance with the directive of the 4th respondent and was not enough to void an election or has not affected the result of the said election which was otherwise conducted in substantial compliance with the provisions of the Electoral Act, 2006. Consequently, the tribunal dismissed the appellant’s petition.
Being aggrieved by the decision of the tribunal, the appellant is now appealing against it in this court as the final appellate court on gubernatorial and Legislative Houses Elections. Nineteen (19) ground of appeal were filed by the said appellant whose learned counsel (in his brief) sought for leave to withdraw grounds 1, 2, 7, 9 and 17 leaving only six (6) grounds as remaining or surviving for the hearing of the appeal (see page 6 paragraph 3 of the brief). In line with the Rules of this court, the parties have respectively filed their briefs of arguments. The appellant’s amended brief of arguments is dated and filed on 8/10/07 but deemed duly filed and served on 17/10/07. On his own part, the 1st respondent also filed an amended brief dated 8/1/07 and file (out of time) on 21/11/07. It was however, deemed properly filed in this court on 8/1/08 before the appeal was heard. The 2nd- 4th respondents’ brief is the only brief in the appeal, which did not suffer the fate of an amendment. It is dated and filed on 15/11/07 but also deemed on 8/1/08. Although the 1st respondent had filed a notice of preliminary objected dated and filed on 10/9/07 in which the competence of grounds 1 and 2 of the appeal and the issues formulated therefrom is attacked, the learned senior counsel for the said 1st respondent Chief Olanipekun, SAN, did not say anything about the preliminary objection during the hearing of the appeal. Thus as the learned counsel did not formally seek the leave of this court to move the objection before the appeal was heard, he has or is deemed to have thereby abandoned his notice of preliminary objection – See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Oforkire v. Maduike (2003) 16 WRN 1; (2003) 5 NWLR (Pt. 812) 166. It may be observed in passing that the reason for the abandonment is probably because the attack in the objection is directed against the competence of grounds 1 and 2 (dealing with the interlocutory appeal) which as I stated above, are among the grounds abandoned by the appellant. In the amended appellant’s brief of arguments, the following 6 (six) issues for determination are formulated:-
“(1) Whether the petitioner/appellant proved that he submitted his passport photographs for embossment on the ballot for the Governorship Election in Lagos State – Grounds 8, 10 and 19.
(2) After the 4th respondent had exercised the power vested in it under section 45 of the Electoral Act by prescribing that the passport photograph of the candidates for the Governorship Election in Lagos State be embossed on the ballot whether it was mandatory on the 4th respondent to emboss the passport photographs of the petitioner on the ballot.”
Subsidiary Issue:
(a) Whether non-compliance with the format prescribed under section 45 with regard to the embossment of the photographs of the appellant could be a ground for petition.
This issue and its subsidiary arise from grounds 3, 4, 5, 6 and 11.
(3) Whether the inclusion of the party symbol of the appellant only on the ballot amounted to a substantial compliance with the provision of section 45 of the Electoral Act – Ground 12.
(4) Whether the onus was on the appellant to prove that the non-compliance affected the result of the Election Grounds 14, 15, and 18.
(5) Whether the petitioner/appellant discharged the onus of proof of falsification of result to show that the election was badly conducted and not in compliance with the Electoral Act – Grounds 16 and 19.
(6) Whether on the complaint before the tribunal, the comparison of the votes cast for the 1st respondent vis-a-vis the vote of all the other candidates was an issue in an allegation of non-compliance with the provisions of section 45 of the Electoral Act – Ground 15.”
In the 1st respondent’s amended brief even though only 3 issues are formulated, the said issues are substantially similar to and have adequately covered those of the appellant and it can be safely said that the two briefs are in agreement as to the issues arising for the determination of the appeal. The 1st respondents 3 (three) issues (in capital form) are as follows:
“(i) Whether the tribunal was right in holding that the non-inclusion of the petitioner’s photograph on the ballot papers used in the conduct of the election was a mere non-compliance with the directive of the 4th respondent (INEC).
(ii) Whether the tribunal was not perfectly right when it held in the line of section 146(1) of the Electoral Act, that the election of the 1st respondent was conducted substantially in accordance with the principles of the act and that if there was any non-compliance at all, it did not affect substantially the result of the election.
(iii) Considering the state of pleadings and evidence led in support of the petition, whether a case of alteration or falsification of result was made out by the appellant to warrant nullification of the election.”
In the 2nd – 4th respondents’ brief, the following 3 (three) issues which are substantially similar to the above issues of the 1st respondent are formulated:-
“(1) Whether from the surrounding circumstances, the appellant proved that there was substantial non-compliance with the provisions of section 45 of the Electoral Act, 2006 in the conduct of the 14th April, 2007 Governorship Election which substantially affected the return made as to render the said election invalid.
(2) Whether or not the reliefs claimed by the appellant can be granted where the appellant established only one condition to wit that there was substantial non-compliance with the provisions of section 45, Election Act, 2006.
(3) Whether the appellant proved before the tribunal that the election results declared by the 2nd respondent in the Governorship election in Lagos State were inflated/deflated or grossly falsified.”
From the above reproduction of all the issues in the three briefs under consideration, it can be seen and said that the parties are ad idem as to the issues arising for determination in the appeal. Since, it is only in the appellant’s brief that the issues are married or related to the grounds of appeal, I will adopt the six (6) issues formulated therein in this judgment and for the determination of the appeal with due consideration of the relevant submission in the other two briefs. It is however to be pointed out that in his submission under his 6 issue the appellant argues issues 1, 2 and 5 separately and treats or deals with issues 3, 4 and 6 together. In my own style, I will deal with issues 1 – 4 and 6, which are on the same topic (i.e. failure to emboss or print his photographs on the ballot paper) together. When the issues are so merged and conveniently condensed, they will correspond with the three (3) issues respectively formulated in the other two briefs. I will proceed in my consideration of the submission under the said issues of the appellant as narrowed down.
Under the issues, the appellant refers to the finding of the tribunal based on the Supreme Court authority of Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383 at 394 that he did not prove that he submitted his passport photographs to the 4th respondent for the purpose of their embossment on the ballot paper as directed by the said 4th respondent by means of the three (3) methods of proof of sending or submission of documents prescribed by the apex Court in its above cited decision – viz:
(a) by a dispatch book indicating the receipt; or
(b) by evidence of dispatch by registered post; and
(c) by evidence of witnesses, credible enough that the person was served with the document – See pages 185 186 of the record.
The appellant however, refers to his witness statement on oath to the effect that he submitted his photographs to the 4th respondent, which was not challenged by any of the respondents who did not give evidence. He asserts that the tribunal overlooked this aspect and only selected the portion of the evidence that was favorable to the respondents by its holding that his evidence merely shows that he submitted the photographs to his political party rather than the 4th respondents contrary to the directive and that he did not call any witness from his party to prove the receipt from him and the transmission of the photographs to the said 4th respondent. Reference is also made to page 114 of the record, which shows the evidence given by the appellant under cross-examination. Thus an attempt is made to distinguish the fact in Nlewedim’s case from the present case where no denial is made by the respondent and this court is urged to rely on the best evidence rule as adumbrated by the Supreme Court and this Court in the cases of M.S.C Ezemba v. S.O. Ibeneme & Anor. (2004) 14 NWLR (Pt. 894) 617 at 660; and Alhaji Mohammed Dikko Yusuf v. Chief Olusegun Obasanjo (2005) 18 NWLR (Pt. 956) 96 at 176-177 and to hold that the appellant has proved the submission of his photograph to the 4th respondent.
In another arm of his submission under issues 1 – 4 and 6, the appellant criticizes the reliance placed by the tribunal on the evidence elicited from his cross examination by the respondent to disprove his claim of submission of his photographs to the 4th respondent. Surprisingly however, the authorities relied upon by the appellant on this submission all show that evidence can be obtained or elicited both in chief and on cross examination and will be accorded the same value or weight by the court. The authorities wrongly cited and relied upon by the appellant on his weak submission include: Bamgboye & Ors. v. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 at 155; and Alhaji Mohammed Daggash v. Hajia Fati I. Bulama & Ors. (2004) 14 NWLR (Pt. 892) 144 at 241; section 188 (2) of the Evidence Act; and Sarkar on Evidence 14th Edition, Vol. 2 at page 1991. Even the last authority cited by the appellant does not in anyway support or lend any weight to his submission on the point he is trying to canvass that evidence obtained or elicited in cross examination should be treated or regarded as weaker or having less weight than that obtained in the examination in chief. Rather the learned author (supra) stated the correct position as quoted by the appellant at page 10 of the brief that:-
“Its object is either to obtain from the witness admissions favourable to his adversary or to discredit him. Cross-examination is the most effective of all means for extracting the truth and exposing falsehood …”
The appellant’s brief also refers to the INEC Forms CF001, CF004 and EC4B CVV which were produced by the 4th respondent and admitted as exhibits ‘B’ ‘C’ and ‘D’ by the tribunal which though did not contain his photographs but are said to be supportive to his evidence under cross-examination that he had submitted his photographs (exhibit A) to the said 4th respondent who failed to emboss them on the ballot papers. Still under the 4 issues, the appellant (in his amended brief) refers to section 45(1) of the Electoral Act and criticizes vehemently the interpretation ascribed to that provision by the tribunal in its judgment (at pages 183 – 184 of the record) where it held that the provision is only mandatory in relation to the party symbol or logo but merely directory as regards the other information as it may require which includes the photograph of a candidate. It is submitted by the appellant that the tribunal was wrong in giving such a confusing and contradictory interpretation to the provision in question. It is asserted that once the 4th respondent (INEC) prescribed the use or embossment of candidates photograph, which is submitted by the said candidate, it then becomes mandatory for it to emboss it on the ballot paper. It was therefore unfair and discriminatory for the said 4th respondent to emboss the photograph of the 1st respondent and fail or refuse to do the same with that of the appellant. Such exclusion is said to be a non-compliance with the provision of section 42(1) of the Constitution of the Federal Republic of Nigeria, 1999 as well as against the rules of natural justice – See Bennion on Statutory Interpretation page 757 cited on the submission. A meticulous attempt is also made in the brief on the canon or principle of statutory interpretation and their correct application to similar provision as laid down by the Supreme Court in Najiu Rabiu v. The State (1980) NSCC 291 at 306 and 318; (1981) 2 NCLR 293; and Watson Dilworth v. Commissioner of Stamps (1899) AC 99 at 105 and 106 cited in support. It is argued that the tribunal should have adopted the same approach by giving a wider interpretation to the words in section 45(1) of the Electoral Act (supra). Reference is also made in the brief to section 10(1) of the Interpretation Act, which provides that where an enactment confers a power or imposes a duty such power or duty shall be performed from time to time and as occasion requires. In applying the provision to the present case, the appellant submits that the tribunal should have applied it in its construction or interpretation of section 45(1) of the Electoral Act (supra) – See Batlersea Borough Council v. County of London Electric Supply Co. Ltd. (1913) 2 Ch. 248; and Re Wilson (1885) AC 750; and Cullimore v. Lyme Regis Corporation (1962) 1 QBD 718 cited in support of the preposition. This Court is therefore urged by the appellant to hold that the dismissal of the appellant’s case under section 145(2) of the Electoral Act cannot be supported. The appellant’s argument on issues 3 – 4 and 6 are mere repetition of the above submissions.
The above submissions of the appellant’s brief on issues 1 – 4 and 6 are replied to under issue 1 and 2 of the 1st respondents brief. The 1st respondent at the onset reminds us of the appellant’s withdrawal or abandonment of grounds 1, 2, 7, 9 and 13 and urges us to discountenance any arguments or submission in the appellant’s brief touching or based on these abandoned grounds. It is also pointed out that the surviving issues of the present appeal as narrowed down by the appellant himself are bordered or predicted on the interpretation of section 45(1) of the Electoral Act, 2006. The brief points out that the foundation of the appellant’s case at the tribunal namely the non-embossment of his photograph on the ballot paper for the election as a sole ground to declare the election invalid is strange and unprecedented and first of its kind in the history of Nigerian jurisprudence. It is submitted that in the determination of the appellant’s complaint which is said to amount to non-compliance with the provision of the Electoral Act, the court or tribunal must consider the effect of such non-compliance to the overall outcome of the election – See Swem v. Dzungwe (1996) 1 SCNLR 111; and Woodward v. Sarsons 10 LRC p. 733; and Sorunke v. Odebunmi (1960) SCNLR 414 at 417 – 418 cited in support of the submission. It is stated that in the present case, the tribunal was right in it’s finding that the appellant was unable to show that the non-inclusion of his passport photograph on the ballot paper affected his fortunes at the election. It is also the contention of the 1st respondent that the complaint of the appellant does not constitute a ground for the challenge of an election under our present or current Electoral Law – under section 145(1) of the Electoral Act, 2006 – See Rimi v. INEC (2005) 6 NWLR (Pt.920) 56 at 82-83; Nwabochi v. Gift (1998) 12 NWLR (Pt. 579) 522; Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144; and ANPP v. The Returning Officer, Abia South Senatorial District (2005) 6 NWLR (Pt. 920) 140 cited in support of the contention. It is submitted that in the instant case the appellant’s complaint, no matter how grave it may be, based on a ground outside those in section 145(1) cannot lead the tribunal or this Court to upturn the 1st respondent’s election.
On the interpretation of section 45(1) of the Electoral Act, the 1st respondent described the appellant’s contention that the use of the word “may” in the provision should be widened or construed to be mandatory or obligatory as unfounded in law, misconceived, and untenable. The case of Rimi v. INEC (supra) is cited in the brief where this court held that whether the use of the word “may” in a statute is to be construed as mandatory discretionary or merely directory depends on the context in which the word is used. The criteria to be used or employed by the court in the interpretation of the word in its mandatory of discretionary sense is said to be whether or not a sanction is provided in the statute to compel the observance of the provision in question or to punish the breach of a duty to act under it – See Ijebu-Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136; Ifezue v. Mbadugba (1984) 1 SCNLR 427; and Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481 cited in support of the above preposition. The finding of the Tribunal at page 184 of the record and its interpretation of section 45(1), which tallies with the above authorities, is said to be right and unassailable.
On the other hand, the interpretation sought to be made by the appellant in his brief is said to be based on his own convenience and selfish interest which is abhorred by the judicial decision over the years- See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116; and Awolowo v. Shagari (1979) 6 – 9 SC 51 cited in support. It is further contended by the 1st respondent that there is nowhere throughout the Electoral Act (supra) where the requirement of a passport photograph in the ballot paper is prescribed. Rather what is expressly prescribed and recognized in section 45(1) is the symbol of a political party on the ballot paper. Consequently, the tribunal is said to be right in applying the provision of section 145(2) of the Electoral Act (supra) to hold that while the requirement of a party symbol is mandatory under section 45(1) that of a passport photograph is merely directory. The attempt by the appellant’s counsel to import a mandatory meaning to the word “may” in his brief and based on wrong analysis is said by the 1st respondent to be an attempt to mislead the court. It is submitted that the attempt will not avail the appellant’s case as he has failed to show to this Court the consequences of a breach of the duty imposed under section 45(1) of the Electoral Act (supra).
In another limb of the 1st respondent’s submission, reference is made to paragraph 5 of the petition which contains the appellant’s sole allegation or the relief he sought at the tribunal namely to declare the election held on 14/4/07 as invalid by reason of non-compliance with the provision of section 45 of the Electoral Act (supra). It is argued that this allegation casts the burden of proof on the appellant under section 137 of the Evidence Act to establish not only the facts of the non-compliance with the Act but also to prove or show that the alleged non-compliance substantially affected the eventual or overall result of the election this is said to be in line with the provision of section 146 of the Act (supra) and supported by a number of judicial authorities or decisions including Ogbu v. Nnaji (1999) 4 NWLR (Pt. 597) 87 at 94; and Swem v. Dzungwe (1966) 1 SCNLR 111 at 119. It is submitted that under the above authorities it is only when the petitioner has discharged his twin burden of proving the non-compliance and its effect on the overall result of the election that the evidential burden will shift on the respondent to prove or show that the non-compliance did not substantially affect the result of the election. It is pointed out that in the present case the appellant failed woefully to discharge either of the two burdens or preconditions, which must co-exist before the burden will shift to the respondent.
It is pointed out in the brief that the appellant as the only witness in his petition did not testify on how the non-inclusion of his passport photographs which he claims to be a non-compliance with the Electoral Act negatively or adversely affected his fortunes at the election of 14/4/07 – see page 114 of the record referred to in the brief.
In the final lap of his submission, the 1st respondent refers to paragraph 6.03 of the appellant’s brief where his main complaint in the present appeal is stated as being essentially a question of Law based on the interpretation of section 45(1) of the Electoral Act (supra).
This is said to be aimed at merely seeking for an advisory opinion from this court. It is submitted that the courts abhor or condemn the employment of judicial proceedings aimed at merely seeking for advisory opinion – see A.-G., Anambra v. A.G., Federation (2005) 9 NWLR (Pt.931) 572; cited in support of the point. Moreover, by the appellant’s submission in paragraph 6.10 of his brief it said to be clear that he is not challenging the return of the 1st respondent as the Governor of Lagos State but only seeking for the opinion of this court on the interpretation of section 45(1) of the Electoral Act (supra). It is argued that for a non-compliance to warrant the voiding of an election as sought by the appellant in his present petition it must be proved to the satisfaction of the tribunal that majority of the voters voted for the petitioner but he was not declared the winner or that the petitioner failed to secure majority of votes due to the non-compliance – see Angbazo v. Ebye (1993) 1 NWLR (Pt. 268) 133. It is pointed out that in the present case as conceded by the appellant (as the only witness) it was not shown or proved that any voter was misled by the absence of his photograph on the ballot paper. Nor was it also shown that those who would have voted for the said appellant could not vote because they did not see his picture on the ballot paper. The 1st respondent on this note finally urges this court to resolve his issues 1 – 2 against the appellant.
In the 2nd – 4th respondents’ brief of arguments, the relevant issue corresponding the above discussed issue(s) of the appellant and 1st respondent is issues 1 and 2. Under the said issues, the 2nd – 4th respondents state contrary to the appellant’s submission that the provision section 45(1) of the Electoral Act, 2006 is mandatory, that a careful reading of the provisions shows that the only feature, which must be included in the ballot paper, is the symbol adopted by the political party of a candidate. Thus the inclusion of a passport photograph of candidates on the ballot papers is apparently not a mandatory requirement under the provision of the section. Similar provisions of the Electoral Act making a party symbol as the means of identifying political parties and their candidates are highlighted in the brief which include section 57(1); 82(1) and (2) and 83 of the Electoral Act (supra). Consequently, the brief contends, that it is the symbol of a political party rather than the facial or pictorial appearance of their candidates that is the distinguishing or identifying factor on the ballot papers of the election. It is submitted that the appellants name and the symbol of his political party which, are conceded by the said appellant (on cross examination) to be on the ballot paper (exhibit E) amount to a substantial compliance with section 45(1) of the Electoral Act (supra). The tribunal is said to be right in it’s finding (as page 184 of the record) to that effect. It is also argued that the interpretation given by the Tribunal to the phrase “and such other information as it may require” appearing in section 45(1) as merely directory rather than obligatory or mandatory is also proper. The phrase is said to be incapable of any other interpretation. Since the requirement of photographs to be embossed on the ballot papers was a directive of the 4th respondent, its failure to carry out such directive either by itself or any of its staff cannot be a valid ground for questioning the election – see section 145(1) of the Act and the Supreme Court decision of Buhari v. Obasanjo (2005) 8 MISC 1 at 215; (2005) 13 NWLR (Pt. 941) 1 cited in support of the above submission.
In another arm of the 2nd – 4th respondents’ submission, it is pointed out that the appellant in his petition claimed that 4 copies of his passport photographs were submitted to his party to be forwarded to the 4th respondent but in his witness statement on oath, he testified that he was the one who submitted the passport photograph to the 4th respondent. It is submitted that the appellants above testimony was contrary, to the averment in his pleadings. This is said to be contrary to the rule that evidence, which is at variance with pleadings, is inadmissible and is without probative value – See Yusuf v. Obasanjo (2005) 18 NWLR (Pt. 956) 96; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; and Buhari v. Obasanjo (supra) cited in support of the above principle. It is further pointed out that under cross examination, the appellant created another controversy on the issue as to who submitted his photographs (exhibit A) to the 4th respondent by his party and that there is no evidence to acknowledge the receipt of the photographs. Under the Law of evidence it is the direct evidence of the person who did or effected the submission of the photographs that is required – see section 77 of the Evidence Act; Buhari v. Obasanjo (supra). The appellant’s failure to adduce such direct evidence or call the person who effected the submission of his photographs to the 4th respondent is said to justify the Tribunal application of the principle enunciated by the Supreme Court in Nlewedim v. Uduma (supra) on how to prove submission or delivery of documents.
On the appellant’s discharge of the burden of prove of his allegation at the tribunal, the 2nd – 4th respondents’ point out that even though they did not call any witness or adduce any evidence, it was still the appellants burden to prove what he asserted by showing positively that he submitted 4 copies of his passport photographs to the 4th respondent and by proving the delivery to and acknowledgment of receipt by, the 4th respondent of the said photographs. On his failure to discharge that burden, the 2nd – 4th respondents submit that the tribunal was right in it’s finding (at p. 186 of the record) to that effect and in dismissing his petition.
I have given due consideration to the above submissions from the 3 briefs on the appellant’s issues 1- 4 and 6. Before I delve in to consideration of the merits or otherwise of the submission under the issues it is necessary at this onset to acknowledge the receipt from the appellants counsel of the following documents forwarded to the court in their letter of 16/1/08:-
(a) a copy of INEC notice on verification of personal particulars of candidates;
(b) a copy of INEC Guidelines and Regulation for the Conduct of Federal, State and Area Council Election 2007; and
(c) a copy of INEC manual for election officials 2007.
Copies of the above documents were forwarded to each of the 5 Justices who heard the present appeal on 8/1/08 in fulfillments of counsel undertaking. They are said to be relevant to show that the 4th respondent was responsible for making the prescription for the embossment of passport photograph on the ballot papers of Governorship candidates “in Lagos State” at the 14/4/07 election. The documents were sent by the learned counsel Mr. Ajayi, SAN in fulfillment of his undertaking and are hereby appreciated, as they will be duly considered in this judgment at the appropriate stage.
The next preliminary point to mention is the concession of all the learned counsel in the present appeal on the narrowing down of the only live and practical issues in the appeal to be resolved by this court in the determination of the appeal. These life and practical issues have been set out in the 1st respondents brief of arguments (at paragraphs 4.3 and 4.4, pages 8 and 9 thereof). The appellant who did not file a reply brief to controvert them is deemed to have accepted them. Moreover at hearing of the appeal, all the learned counsel agreed to further narrow down the issues in the appeal into the following:
- Whether the 4th respondent prescribed the embossment of passport photographs of the candidates for the governorship election in Lagos State, which took place on 14/4/07.
- Whether the appellant established before the tribunal that he submitted his passport photographs to the 4th respondent (by himself or through his party) for such an embossment on the ballot paper which was not so embossed and the non-embossment affected his fortune at the election.
- Whether the non-inclusion or non-embossment of the appellant’s photographs on the ballot paper amounted to a substantial noncompliance with section 45(1) of the Electoral Act, 2006, which will lead to the nullification of the Governorship election, held on 14/4/07 in Lagos State.
I also agree with the mutual concession of the learned counsel that the resolution of the above issues or question will effectively deal with or dispose the lengthy submission in all the briefs filed in the present appeal.
On the 1st of the above question, the documents submitted subsequently to this court by the appellants learned senior counsel (referred to above) are relevant. Although they appear to be in the form of additional evidence (or fresh evidence) on appeal as they were not tendered at the tribunal the appellants counsel urged this court not to regard them as such but to treat them with the status of a legislation or subsidiary legislation by INEC (4th respondent) made or issued pursuant to the Electoral Act, 2006. As such they do not need to be pleaded and can be referred to at any stage of the proceedings. Be that as it may. The important point to consider about them whatever their status is that the learned counsel was permitted by this court to forward them and he did so in fulfillment of his undertaking and in compliance with this courts directive. The only observation on the documents submitted is that the appellant sought for the court’s permission to forward one document namely the guidelines for April 2007 election issued by the 4th respondent (INEC) but ended up sending 3 (three) documents. The other two documents surely require the sanction of the court in order to be considered along with the guidelines. In any case, I still read them and found that they are not relevant to the point canvassed by the appellant namely to establish that the 4th respondent prescribed the embossment of passport photographs of gubernatorial candidates in Lagos State on the ballot paper. The first of the 3 (three) documents from its name, which is for verification of personal particulars of candidates, relates to the items required to be submitted by the political parties in their nomination or substitution of candidates to stand at the election. The shaded words (at page 3 of the document) which state that “this is for use on the ballot paper” does not impose any duty but is a mere exhortation as to the earnest intention of the 4th respondent on the use to put the said passport photographs if submitted. Similarly, the said document titled “Guidelines and Regulation for the Federal, State and Area Council Elections, 2007” merely states the condition to be satisfied and document to be submitted to the 4th respondent by the political parties in their nomination of the candidates they sponsor for the election. The shaded words at page 4 of the document starts with the words “the completed nomination form shall contain …” There is nothing to suggest that the photograph to be fixed on the nomination form is to be used or embossed on the ballot paper during the election.
The 3rd document is titled “Manual For Election Officials, 2007” Its main purpose is expressed in the introductory passage of page (iv) paragraph 3 thereof as:-
“This manual has therefore been designed to assist polling Station official and other Election Officials in understanding the election processes and procedures… ”
As its object is clearly expressed to be for guidance, it is not intended to have the force of Law. Moreover there is no sanction prescribed upon the breach of any of its provisions. The shaded words at page 21 of the documents are inserted as a NOTE on steps 3 and 4 on that page. By the provision of our interpretation Act, notes footnotes and side notes do not form part of the legislation – See section 3(2) of the said interpretation Act.
From my above analysis of the document posted by the appellants learned counsel, there is nothing to show that the 4th respondent who issued them intended them to be binding or to have legal effect in the sense that their breach should attract sanction. Rather they were mere directive or directory aimed at giving guidance to its officials and other stakeholders at the election which it hoped to be hitch-free and fair. The documents therefore in my humble view do not assist the appellant on his submission that they were issued with the aim or object of giving a legal or binding force. If they were otherwise or of the status asserted by the appellant then many candidates who did not forward their photographs to INEC for embossment on the ballot paper or whose political parties did not forward the same to INEC would have been disqualified or barred from the election. This result will defeat the purpose and spirit of the Electoral Act. This is also the reason why despite the non submission of the appellants photographs to the 4th respondent it still allowed or permitted him to participate in the election since the other requirements which are expressly mentioned in section 45(1) have been satisfied i.e. the candidate’s name and the logo of his political party. We are then left without a solution from the documents submitted by the appellant and have to revert to the bottom line and the gravamen of the appellant’s complaint against the finding of the tribunal based on its interpretation of section 45(1) and 145(2) the Electoral Act, 2006. Because of its significance to the present case, the provision of section 45(1) has been reproduced in all the briefs under consideration. I will also do the same as hereunder:-
“45(1) the commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the political party of the candidate and such other information as it may require.”
In his brief, the learned senior counsel for the appellant was vehement and meticulous in his lengthy submission on the proper interpretation the Tribunal should have given to the word “shall” as appears or used in the provision of section 45(1) of the Electoral Act (supra).
The main object of the exercise is to show that the two words “shall and may” should be interpreted as imposing a mandatory duty on the 4th respondent not only to prescribe the format of the ballot paper (as it did) but also to ensure compliance with its prescription on the item to be contained in the said ballot paper, In their reply, the respondents who support the tribunal’s interpretation based on the word “may” in the provision as making the requirement of any other item(s) apart from those expressly mentioned in the provision as either optional or merely directory on the 4th respondent maintain that a non-compliance in relation to such other items (as the passport photograph in the present case) would not amount to substantial non-compliance as to warrant the voiding or nullification of the election by the tribunal. In other words or conversely, the 4th respondent’s compliance with the express requirements and its non compliance with the other requirements which are not expressly mentioned in the provision but are left at its discretion or directive is or amounts to a substantial compliance with the provisions and the spirit of the Electoral Act in accordance with section 145(2) of the Electoral Act, 2006 (supra), The later provision provides as follows:-
“145(2) An act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”
After giving due consideration and weighing the submission on the point, I am inclined to accept and agree with the respondents stand on the proper interpretation given to the provision by the tribunal. It is rightly pointed out by the 1st respondent’s learned counsel that the present case presents a novel occasion for its being the first case in which all attempt is made to nullify an election which was duly conducted and hitch-free simply because the passport photograph of one of the candidates is omitted in the ballot paper, I also agree with the submission of the respondent, which were not controverted by the appellant who did not file a reply brief. These include the non-relevance of the cases cited by the appellant on the point most of which are forcing and merely persuasive and only become relevant when there are no relevant precedents of our Nigerian Courts.
I also accept the submission which has not been disputed by the appellant that the questions presented by his petition is merely to seek the opinion of this court on the interpretation of section 45(1) of the Electoral Act, 2006 (supra) rather than the actual challenge against the return of the 1st respondent as the Governor of Lagos State (see paragraph 5:20 of the 1st respondent’s brief). On this point the law is settled that it is not the function or duty of the court to embark on giving advisory opinions to litigants or counsel in the case before it – see Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652; and A.G., Anambra State v. A.-G., Federation & Ors. (2005) 5 SCNJ 38 at 56; and Wapanda v. Wapanda (2008) 1 NWLR (Pt.1068) 364 at 391
In any case, since the tribunal in the present case has provided the interpretation of the provision in its judgment which is the subject-matter of the appeal before us, its our duty as an appellate court to consider and decide whether the interpretation of the provision made or given by the tribunal is proper or wrong. It is only when we find an error in the decision of the tribunal which has substantially affected its decision that we will interfere and allow the appeal otherwise we should affirm it – see Cookey v. Fombo v. (2005) 5 SCNJ 213 at 226; (2005) 15 NWLR (Pt. 947) 182; and Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282. I now proceed to consider the interpretation given to section 45(2) by the tribunal.
Both the tribunal and this court faced with a novel situation as presented by the present case have to find a solution to it one way or the other even though there are no direct authorities or precedents on the question. This is as directed by the Supreme Court in A.-G., Federation v.Abubakar (2007) 10 NWLR (Pt. 1041) 1 at 171-172. I will therefore begin my exercise with the consideration of the principles or rules on interpretation of statutory provision.
It is trite that in its duty on the interpretation of the constitutional or statutory provision as presented in the present case, the court should have regard to the following principles:-
(a) a liberal approach to the interpretation of the constitution or the statute should be adopted;
(b) the court must employ care and take the circumstances of the people into consideration;
(c) the historical facts, which are necessary for comprehension of the subject-matter may be called in aid; and
(d) the mischief, which the legislation was made to deter, is arrested. – See Rabiu v. Kano State (1980) 8-11 SC 130; Uwaifo v. A.-G., Bendel State (1982) 4 NCLR 1; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; and A.-G., Federation v. Abubakar (supra) at p.80- 81 of the report).
It is clear that the 1st, 2nd and 4th of the above principle apply to the instant case making the provision of section 45(1) to be interpreted liberally and under the prevailing circumstances of the Governorship election held on 14/4/07. Moreover, there is a need to avoid the possible mischief of nullifying an otherwise validly conducted election with the peoples’ mandate simply on the sole basis of the absence of a candidates photograph on the ballot paper. It is pertinent to observe at this stage that despite the appellants complain of non-embossment of his photograph on the ballot paper he and his supporters still took part in the voting exercise in which other candidate whose photographs either appeared or are missing in the ballot paper also participated without any complain. It is trite that a party who participated in an election is estopped from approbating and reprobating against it – see Opigo v. Yukwe (1997) 6 NWLR (Pt.509) 428;Iga v. Amakiri (1976) 11 SC 1; and Sowemimo v. Awobajo (2003) WLRNC (Pt.1) 3 at 108; (1999) 7 NWLR (Pt. 610) 335; See also S. 151 of Evidence Act.
It is a basic and cardinal principle and rule of statutory interpretation, which is aimed at ascertaining the true intention of the legislature, that where the words used in an enactment are clear and unambiguous they should be accorded their ordinary and grammatical meanings without any colouration. This is called the golden rule of interpretation. A statute or an enactment is an expression of the will of the legislature and the court’s function in its interpretation is merely to declare such legislative intention from the actual words used in the statutory provision. It is also sometimes called the literal construction or meaning of the statutory provision involved – see Ugwu v. Ararume (2007) 31 WRN 1 at 60-61; (2007) 12 NWLR (Pt. 1048) 365; Adejumo v. Governor of Lagos State (1970) 1 All NLR 183; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; and Obi v. INEC (2007) 45 WRN 1 at p. 81; (2007) 11 NWLR (Pt. 1046) 436.
It is only when the literal or golden rule of interpretation leads to an ambiguity or mischief that makes the intention of the legislature uncertain that the court would look at other provision of the statute with preference to the view aimed at avoiding a public mischief. This is called the mischief rule of interpretation – See Ifezue v. Mbadugha (1984) NSCL 14; (1984) 5 SC 79; (1984) 1 SCNLR 427; Hydons case, 3 Co. Rep. 7 at 76; Wilson v. An. Gen of Bendel State (1985) 1 NWLR (Pt. 4) 572; Savannah Bank of Nigeria Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305; (2001) FWLR (Pt. 25) 513. Under the mischief rule, the court in arriving at a reasonable construction of a statutory provision, is entitled to consider other provision of the statute, the history of how the law stood, when it was passed, the mischief for which the old law did not provide and the remedy provided by the new law in order to cure the mischief – See Ugwu v. Ararume (supra) at p. 63; Uwaifo v. Attorney-General, Bendel State & Ors. (1982) NSCC (Vol. 13) 221; (1982) 4 NCLR 1; and Obi v. INEC (supra) at p. 137.
In applying the above principles of interpretation to section 45(1), it is easy to see the clear intention of the draftsmen, which is that the 4th respondent is conferred with the responsibility of prescribing the format of a ballot paper. In discharging the responsibility the 4th respondent is mandatorily enjoined by the use of the word “shall” to include the symbol or logo of the political party of the candidate as well as the name of the candidate who is mentioned in the provision. Thus it is required under the provision that the ballot paper must contain –
(a) the name of the political party;
(b) its symbol or logo, and
(c) the name of the candidate.
In addition to the 3 basic items, which are mandatorily required to be in the ballot paper, the commission is also given the option or discretion to include other data or information in the ballot paper. This is permitted in the last part of the provision by the phrase “and such other information as it may require.” It is my humble view that this interpretation which is exactly the same as the one given by the tribunal is the correct interpretation based on the express, clear and unambiguous wordings of the section under review and also acceptable to common sense. It will also not lead to any absurdity or mischief.
It is trite that the words “shall or may” when used in a statutory provision are capable of bearing many or different meanings depending on the intention of the legislators and the context in which they are used or employed in the particular provision. Thus, even though “shall” is used, it may be interpreted as either in a mandatory sense or a merely directory in a permissive sense. Where it is used in a directory sense, the action(s) to be taken is or are expected to be carried out substantially. Once the action(s) prescribed is or are substantially carried out as in the present case, the mandate has been complied with or achieved – See Ifezue v. Mbadugba (supra); Amokeodo v. I.G.P. (1999) 6 NWLR (Pt. 607) 467; Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76; Oju L.G. v. INEC (2007) 14 NWLR (Pt. 1054) 242 at 270 -271; and Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56 at 80-81 and Ugwu v. Ararume (supra). In view of my above consideration, the 1st question posed above should be answered appropriately so that even though the 4th respondent had prescribed the embossment of passport photograph on the ballot papers in addition to 3 other requirements, the absence of the said passport photograph in the ballot paper will not be fatal to the election once it is shown or accepted that the other 3 (three) requirements of the provision of section 45(1) have been fulfilled by the said 4th respondent. Thus, it tallies with the common sense that the fulfillment of three out of the 4 requirements and a fortiori the non-fulfillment of only one out of the 4 requirements amounts to a substantial compliance with the provision of the section or that the non-compliance was not substantial enough to warrant the voiding of the election. It is trite that the non-observance or non-compliance with the electoral rules in order to render the election invalid or contrary to the principle of the Electoral Act must be so great and substantial and must satisfy the court or tribunal that it affected or might have affected the majority of the voters or the result of the election – See Sorunke v. Odebunmi (1960) SCNLR 414; Uwawah v. Ekwejunor-Etchie FSC/263/1961 reported in (2003) 1 WLRNC (Pt.1) page 28 at p. 32-33; (1962) 1 SCNLR 157; Dada v. Dosunmu (2006) All FWLR (Pt.343) 1605; (2006) 18 NWLR (Pt.1010) 134; and Amosun v. INEC (2007) All FWLR (Pt.391) 1712 at 1765-1766.
The 2nd question posed above will attract a simple answer.
The heavy whether made by the appellant in which he seeks to capitalize on the failure of the respondent to counter or controvert his evidence by not calling any witness in support of their reply to his petition is clearly misconceived as his petition is an action seeking for declaratory reliefs. As a petition that seeks for the nullification of an election and other declaratory reliefs, he should succeed on the strength of his own case and not on the weakness of the respondent’s case. It is trite that in cases where declaratory reliefs are claimed as in the present case, and notwithstanding the fact that the defendant/or respondent did not call evidence to challenge the appellants evidence that failure of the respondent would not relieve the said appellant from satisfying the tribunal by cogent and reliable proof or evidence in support of his claim or petition. In the present case, where the appellant’s evidence was only his own testimony as the only witness and based on his ipsit dixit, which was also contrary to what he pleaded, the tribunal was perfectly right in rejecting his claim that he either personally submitted to the 4th respondent (or through his political party) his passport photographs for embossment on the ballot paper. Consequently, the tribunal was right in applying the principle in the case of Nlewedim v. Uduma (supra) and in its holding that the appellant failed to establish that he forwarded his photographs to the 4th respondent by means of any of the methods of proof of service of documents as enumerated by the apex court its decision in the above cited case. This view is unassailable and cannot be faulted.
It is settled that in an election petition, a petitioner who alleges non-compliance with the electoral rules or act and avers that such non-compliance was substantial, has the two fold burden on him to prove and satisfy the court not only that the alleged non-compliance actually occurred or took place but also that it affected or might have affected the result of the election – See Akinfosile v. Ijose (1960) SCNLR 447; Bassey v. Young FSC. 362/1962 dated 22/1/63 reported in (2003) 1 WLRNC (Pt. 1) at p. 71; (1963) 1 SCNLR 61. Consequently, the tribunal was right in holding that the appellant failed to establish or prove his allegation that he submitted (either by himself or through his political party) his passport photographs to the 4th respondent for embossment on the ballot paper. It is pertinent to observe that the 4th respondent denied the receipt of the passport photographs either from the appellant or his political party. Since the appellant did not scale through the first hurdle in establishing or discharging his burden of proof, it is not necessary to go into the 2nd onus of proof, which requires him to show that the non-embossment or alleged non-compliance by the 4th respondent affected his fortune at the election. The 2nd question should therefore be answered in the negative.
The 3rd and last question framed above takes us to the consideration of the propriety of the application by the tribunal of the provision of section 145(2) of the Electoral Act, 2006 (supra). Which provides as follows:-
“145(2) An act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election but which is not contrary to the provision of this Act shall not of itself be a ground for questioning the election.”
From its express and simple wordings, the above provision in my humble view relates to and was resorted to by the tribunal in its consideration of the 1st respondent’s preliminary objection on the competence of the appellant’s petition with a view to terminating it in limine. However, since the petition was not so terminated but it scaled through the preliminary objection and was eventually heard by the Tribunal, which gave its final judgment, which is the subject of the present appeal, the provision is no longer relevant for consideration in this judgment as it is a non-sequitor despite the aptly repeated reference to it in the briefs. The only relevant provision to cite in relation to the alleged non-compliance with the provision of (section 45(1) of the Electoral Act is as provided for in section 146(1) of the said Act (supra) which is as follows:-
“An election shall not be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or the court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the election.”
The above provisions was rightly cited and relied upon by the tribunal in its refusal to grant the appellants relief and in the dismissal or his petition – See Na-bature v. Mahuta (1992) 9 NWLR (Pt. 263) 85; and Basheer v. Same (1992) 4 NWLR (Pt. 236) 491 where a similar provision under the 2002 Electoral Act was applied. My humble view is that since the appellant in the instant case has not substantiated the allegation of non-compliance with the Electoral Act, 2006; the provision quoted above does not come into play. In other words the provision in section 146(1) pre-supposes that there is an established or proved act or omission amounting to a noncompliance with the provision of the Act which does not substantially affect the result of the election before it comes into play. In the present case, in which the alleged non-compliance was not proved or established by the appellant, the said appellant has not discharged his first burden or onus of proof and the tribunal rightly dismissed his case under the ordinary rule or principle of law that where the plaintiff fails to call or adduce evidence to establish his claim or case, the trial court or tribunal should dismiss the said case.
The 5th issue of the appellant’s brief no longer needs any consideration in this judgment because of the concession and the mutual agreement reached by all the learned counsel on the live and narrow issues calling for determination in the present appeal, which I have already considered above under issues 1 – 4 and 6. It is pertinent to point out also that issue 6 of the said appellant’s brief has been merged and argued together by the said appellant along with issues 3 and 4 which have already been considered in my above discuss on issues 1 – 4 and 6.
On my final consideration of all the three questions arising from the present appeal (as conceded by the learned counsel) and as presented in the brief and in view of my resolution of all the questions against the appellant and in favour of the respondent, the resultant verdict should be that the appellant’s appeal has failed and ought to be dismissed. It is accordingly hereby so dismissed. The respondents are entitled to costs, which I assessed at N30,000.00 to the 1st respondent and N20,000.00 to the 2nd – 4th respondents.
Altogether, I award the total costs of N50,000.00 against the appellant and in favour of the two sets of respondents.
Other Citations: (2008)LCN/2663(CA)
