Justice Party & Anor V. Independent National Electoral Commission (Inec) & Ors (2003)
LawGlobal-Hub Lead Judgment Report
D. MUHAMMAD, J.C.A.
In 1999, this country once again embarked on yet another effort to return to democracy. By May of that year, the effort had materialised. With the conduct of successful elections, the executive and legislative arms of government at both state and national levels were put in place. Persons elected into these offices were to serve for four years. They would seek re-election at the end of their tenure if they must continue in office.
The governorship elections of 19th April, 2003 was part of the country’s further effort to sustain the nascent democratic experiment began in 1999. Contestants into these offices across the country did so on the platform of registered political parties. The Justice Party was one of such registered political parties. Mr. James David Ebri was the person nominated by the party to contest the governorship election in Cross River State.
Both Mr. Ebri and the Justice Party that sponsored him for the governorship election insisted that the former was a candidate at the election. It is still their case that they had contested the election. Eight other candidates sponsored by different political parties also contested the elections conducted by the Independent National Electoral Commission. Mr. Donald Etim Duke was one of the other candidates. Mr. Duke was returned as the duly elected candidate by INEC at the end of polls. The votes scored by the successful candidate were also declared by INEC.
The votes scored by the eight contestants excluding Mr. Ebri were also provided by INEC.
Mr. Ebri and the Justice Party, his sponsor, were aggrieved by the non-disclosure of the votes the former scored at the election.
And also the return of Mr. Duke as the winner. They filed a petition on 29/5/2002 at the appropriate tribunal. Thereat, they challenged the failure of INEC to disclose the votes scored by Mr. Ebri and the return of the successful candidate at the end of the election. The Independent National Electoral Commission, its Cross River State Resident Electoral Commissioner, and State Chief Returning Officer as well as Mr. Duke who contested on the platform of the Peoples Democratic Party were respondents to the petition. The petition was on the ground that though Mr. Ebri was validly nominated as his sponsor’s candidate, he was unlawfully excluded from the election by the respondents. The tribunal was prayed that Mr. Duke’s return and election being unduly made and void should be so declared.
Mr. Duke’s counsel filed two applications at the tribunal on 20th June, 2003. The two were withdrawn and accordingly struck out. On 25th June, 2003 two similar applications to those that had been withdrawn and struck out on 23rd June, 2003 by the tribunal, were again filed on behalf of Mr. Duke. In one of the motions, an order for enlargement of time to enable Mr. Duke file his reply to the petition was sought.
The 2nd motion was for an order dismissing the petition filed by Mr. Ebri and his sponsor on the following grounds:
“(1) The petitioners lack the locus standi to bring this petition to wit:
(a) The 1st petitioner unlawfully nominated two persons for election into the office of governor
of Cross River State.
(b) The 1st petitioner did not sponsor the 2nd petitioner for, and the 2nd petitioner was not a candidate at the elections, petitioners having withdrawn therefrom.
(c) This petition is incompetent and disclose no cause of action”
The first motion for enlargement of time was taken and being not opposed was granted by the tribunal. Arguments in respect of the second motion were heard also on 2nd July, 2003.
The tribunal overruled the first arm of the objection raised against the petition. However, in sustaining the second arm of the very objection, the petition was struck out on the basis that the petitioners lacked the locus standi to present the petition. 2nd petitioner was not a candidate at the election as required by S.133 of the Electoral Act, 2002. The said 2nd petitioner had withdrawn from participating in the elections two days to the election. The petitioners are dissatisfied with the decision of the tribunal.
They have appealed against the decision by their notice dated and filed on 14th July, 2003. The notice has seven grounds.
The petitioners at the election petition tribunal are thus the appellants before us. The Independent National Electoral Commission and its two officials are the 1st, 2nd, 3rd respondents while Mr. Donald Etim Duke the successful candidate at the election whose return by INEC was being challenged is the 4th respondent in the appeal.
Parties in the appeal have filed and exchanged briefs of argument. The appellant on being served with the briefs of the respondents also filed a reply brief. The briefs have been adopted and relied upon by the parties at the hearing of the appeal.
It is important to note that appellants had in their brief elected to abandon ground six of their notice of appeal. Same is accordingly struck out.
A notice of preliminary objection pursuant to Order 3 rule 15 of the Court of Appeal Rules, 2002 had been filed by 1st – 3rd respondents’ counsel. By the said objection, Chief H. O. Ogbodo of counsel has asked us to strike out the six remaining grounds of appeal and by extension the appeal itself.
Arguments for and against the preliminary objection have been incorporated in the respective briefs of parties. Since the objection touches on the jurisdiction of this court to entertain the appeal the objection shall out rightly be considered. The fate of the objection would determine the fate of the appeal as well.
Learned appellants’ counsel have postulated in their reply brief that the preliminary objection as argued in the Ist-3rd respondents’ brief is incompetent same being a procedure unknown to Order 3 rule 15 of the Court of Appeal Rules. All the same the learned counsel had proceeded to oppose the objection in his arguments reflected in the reply brief.
Let me at this point reproduce the rule allegedly breached by Chief Ogbodu.
Order 3 rule 15(1) states:
“15(1) A respondent intending to reply upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the ground of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
In my respectful and considered view, the foregoing rule only seeks to ensure that a respondent who opposes the hearing of an appeal does not spring a surprise at the appellant. That is why such an objection must provide to the appellant ample time to prepare and meet the objection that would be posed. Three days have been considered adequate by the rule for the appellant who having been supplied the basis for the objection had had the time and the information he required to respond. The rule said and required no more.
In the instant case the objector filed his notice of preliminary objection on 3rd September, 2003. The appeal that had initially been slated against 20th October, 2003 was eventually heard on 22nd October, 2003. The appellant had been obliged more than the mandatory three days the rule of court stipulated should be required to facilitate a response to a respondent’s objection as to the competence of the appeal. The appellants’ grouse pertaining the 1st – 3rd respondents’ preliminary objection is certainly misconceived.
There is the further complaint by the appellants that the notice of preliminary objection had gone beyond what the rules of court provided: It contained the intended arguments of the objector and even judicial authorities relied upon. Again, appellants also incorporated their detailed arguments in their briefs.
What better facility by way of a notice can there be to the one contrived by the 1st – 3rd respondents’ counsel? I shudder to imagine that appellants’ counsel complaint was about being fully informed as to the ground of the preliminary objection and the argument to be canvassed!
Learned counsel is certainly wrong to suggest that the preliminary objection should be discountenanced because arguments thereto had been incorporated in the objector’s brief. Firstly, we sanctioned that arguments be so incorporated. Secondly, it is an adjectival procedure that evolved with time long practice. See Balewa v. Muazu (1999) 5 NWLR (Pt.604) 638 and Savannah Bank (Nig.) Plc. Ltd. (1999).
Now to the 1st – 3rd respondents’ preliminary objection as to the competence of this appeal.
Learned counsel to the 1st-3rd respondents asked us to strike out the instant appeal because the appeal is found on entirely incompetent grounds of appeal. It is contended that grounds 1,7,6, 3 and 4 are incompetent because the grounds do not relate to the decision being appealed against. On the other hand grounds 2, 5, and 7 as well are incompetent because of appellants’ failure to quote the passage in the court’s ruling where either the error or misdirection being complained against in the grounds occurred. The nature of the errors or misdirection were also not specified in the grounds. Learned counsel cited and relied on Egbe v. Alhaji (1990) 1NWLR (Pt.128) 546 at 590; FMBN v. NDIC (1999) 2 NWLR (Pt.591) 333 at 359.
On Mr. Ukweni’s part, it was submitted that the objector’s contention cannot be correct. Learned appellant’s counsel referred to pages 115-117 of the record where the lower tribunal construed the provision of S.25 of the Electoral Act which construction is being directly challenged in ground one in the notice of appeal. Ground 7 is questioning the decision of the tribunal reflected at page 114 lines 1-4 as to whether or not certain documents are public documents.
Mr. Ukweni further submitted that grounds 2 and 5 cannot be discountenanced simply because the passages in the lower tribunals had not been quoted to reflect the errors or misdirection alleged to have occurred. Counsel contended that Babba v. Tafashiya supra is inapplicable to the instant case. Rather, it is the clear provision of Order 3 rule 2(1)-(4) as construed in Paico (Press & Books) Ltd. v. C.B.N. (2001) 3 NWLR (Pt.700) 347 that should govern the situation.
I have considered Order 3 rule 2( 1)-(4) of the rules of this court vis-a-vis the grounds of appeal. I am unable to agree with the contention of 1st-3rd respondents. I have related each of the subsisting grounds of appeal to the record of proceedings and I am satisfied that the complaints the grounds contain were regarding matters that had occurred in the proceedings which gave rise to this appeal. I am equally satisfied that the respondents have been sufficiently informed of the case the appellants intend to make at the hearing of the appeal. There has been substantial compliance with the relevant rule of court. The grounds as filed by the appellants are competent Paico (Press & Books) Ltd. v. C.B.N. (2001) 3 NWLR (Pt.700) 347 has been found apposite. Accordingly, the preliminary objection of 1st-3rd respondents is hereby overruled.
Now to the merits and demerits of the appeal. Four issues have been formulated by the appellants as having arisen for the determination of the appeal. These are:
“1. Whether the Election Petition Tribunal was in the circumstances of the case and on the totality of the evidence before it, right in its interpretation and application of section 25 of the Electoral Act, 2002 to the facts of the petition, and in holding that the appellants withdrew from contesting the gubernatorial election of 2003 in Cross River State?
2. Whether it was proper for the Election Petition Tribunal to have discredited, disbelieved and disregarded exhibit JP-3 and other relevant and unchallenged averments in the appellants’ counter affidavit but giving full effect to exhibits 4 and 5 which were rescinded by exh. JP-3?
3. Was the Election Petition Tribunal right in holding that the 4th respondent has not taken steps in the proceedings disentitling him from raising a preliminary objection on the competency of the petition and whether it is correct for the tribunal to hold that it was proper to raise the preliminary point on evidence and documents other than the petitioners’ pleading?
4. Whether the Election Petition Tribunal was right in coming to the conclusion that exhs. 1, 3, 4, and
5 annexed to the 4th respondent’s affidavit in support of his motion to dismiss the petition are not public documents within section 109 of the Evidence Act, 1990.”
The 1st-3rd respondents have formulated one issue for the determination of the appeal. The issue reads:
“Whether the tribunal was right in law in striking out the petition of the appellants for lack of locus standi on their part to present the same?
At pages 4-5 of the 4th respondent’s brief, the following four issues considered to be germane for the determination of the appeal have been formulated:
“Issue 1
Whether the Election Petition Tribunal was in the circumstances of the case and on the totality of the evidence before it right in its interpretation and application of section 25 of the Electoral Act, 2002. To the facts of the petition, and in holding that the appellants withdrew from contesting the gubernatorial election of 2003 in Cross River State?
Issue 2
Whether it was proper for the Election Petition Tribunal to have discredited, disbelieved and disregarded exh. JP-3 and other relevant and unchallenged averment in the appellant’s counter-affidavit but owing full effect to exhibits 4 and 5, which were rescinded by exh.JP-3?
Issue 3
Was the Election Petition Tribunal right in holding that the 4th respondent has not taken steps in the proceedings thus disentitling him from raising a preliminary objection on the competency of the petition and whether it is correct for tribunal to hold that it was proper to raise the preliminary point on evidence and documents other than the petitioners’ pleadings?
Issue 4
Whether the Election Petition Tribunal was right in coming to the conclusion that exh. 1,3,4, and 5 annexed to the 4th respondent’s affidavit in support of his motion to dismiss the petition are not public documents within section 109 of the Evidence Act, 1990?
From the issues formulated by the parties, it is clear that the fundamental question which must be addressed in this appeal is the question of locus standi: had the appellants the necessary standing by virtue of section 133 of the Electoral Act to commence their petition?
The 3rd issue formulated by the appellants comes in handy in more than one respect. They made the point that 4th respondent had not acted timeously and was accordingly wrongly allowed to move his motion challenging the competence of their petition in the first place. The 4th respondent had filed a motion seeking the tribunal’s order to be allowed to enter appearance out of time before challenging the competence of the petition. They must be deemed to have taken fresh steps after discovering the defect before acting. They rely on paragraph 49(5) of First Schedule of the Electoral Act and the decisions of this court in Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622.
Both counsel for the two sets of respondents have held a contrary view. They supported the decision of the tribunal on this matter as reflected at pages 111- 112 of the record of appeal and I quote:
“The tribunal has always maintained that paragraph 9 must be read with paragraphs 10, 14,49 and 50 of the said 1st Schedule. We also hold the view that it is necessary to move away from simple technicalities in deciding cases.
The emphasis should be on doing substantial justice rather than deciding cases on technicalities. Having considered the provisions of the 1st Schedule to the Electoral Act, 2002 we hold the view that the competence of the motion is not affected by either the failure to file conditional appearance or the participation of the applicant in the proceedings (sic) of 23rd of June, 2003 and 2nd of July, 2003.”
The above position of the tribunal is unassailable. It reflects the position this court has taken in a seemingly endless chain of judicial decisions one of the most recent being Bichi v. Haladu (2003) NWLR (Pt.841) 624. The cases of Eriobuna v. Obiorah and Ezeke v. Dede supra, and Effiong v. Ikpeme (1999) 6 NWLR (Pt.606) 260 are apposite and clearly support the stance of the tribunal. The 4th respondent cannot be barred from challenging the competence of the petition simply because he had asked to be allowed to enter appearance and filed a reply. Enquiry into the petition had not commenced and it would be wrong to hold that 4th respondent had taken steps after the discovery of the defect on the basis of which his motion for the dismissal of the petition was filed.
The 2nd leg of appellants’ 3rd issue for the determination of this appeal related to the procedure adopted by the tribunal in deciding the issue of appellants’ locus to file and prosecute the petition they filed. The main grouse of the appellants here was that it was wrong for the tribunal to have gone outside the appellants’ petition in order to resolve the issue being a preliminary one. If the issue could not be resolved within the purview of the petition, it ceased to be a preliminary issue and became a defence that could only be resolved by taking evidence.
Learned counsel for the appellants, Mr. Ukweni cited and relied on Dagazau v. Borkir Int. Ltd. (1999) 7 NWLR (Pt.610) 293 at 303; Waziri v. Danboyi (1999) 4 NWLR (Pt.598) 239 and Nnamani v. Nnaji (1999) 7 NWLR (Pt.610) 313 at 330. Both learned counsel for the two sets of respondents, Chief Ogbodo and Chief Onyia submitted that the issue of locus standi being one on the jurisdiction of the tribunal could be raised anyhow and anytime. In particular, Mr. Onyia also submitted further that Order 25 rules 1 and 2 of the Federal High Court Rules which governed the tribunal’s procedure justified the procedure adopted by the tribunal. Mr. Onyia also had recourse to the decisions in Dada v. Ogunsanya (1992) 3 NWLR (Pt.232) 754; Fadare & Ors. v. A.- G., Oyo State (1982) NSCC 52 at 53; (1982) 4 SC 1 and Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 at 385.
I agree with Mr. Onyia’s submission that we should uphold the position we articulated in Ojong v. Duke (2003) 14NWLR (Pt.841) 581 that our past decisions in matters wherein similar facts and laws to the ones we confront subsequently should inform our eventual decision.
However learned counsel should have proceeded to submit further that where the facts and/or the laws that had been applied in a previous case had differed from either the facts and/or the laws under consideration in the subsequent case the enquiring court will not be bound to apply the principles enunciated in the earlier case.
Truly, that is what the rule of stare decisis is also about. See Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116 SC; and Emesim v. Nwachukwu (1999) 6 NWLR (Pt. 605) 154 CA.
Authorities cited by both sides to this appeal fall into two categories.
On the one hand are the decisions in Dagazau v. Borkir Int. Ltd.; Waziri v. Damboyi and Nnamani v. Nnaji supra which held that in determining whether or not a claimant had the locus standi to initiate his action, the court must limit its consideration to the plaintiff’s claim alone. In the case at hand that would be the appellants’ petition without more.
On the other hand are decisions in Enecheta v. Ogueri; Okoi v. Ibiand and Akinbi v. The Military Governor of Ondo State supra.
These were decisions of this court as well. They held that where the issue of locus standi cannot be resolved within the purview of the appellants’ petition, the issue becomes a defence resolvable after evidence had been heard.
The two categories are diametrically opposed and mutually exclusive. Not surprisingly, neither side to this appeal had asked us to be bound by both.
The first set of authorities appears to have evolved out of proceedings where the demurrer procedure had featured. In such procedure, respondents would be seen to be admitting every allegation of facts averred to in the appellants’ petition and that in spite of those facts no cause of action had been disclosed. The procedure does not allow for the taking and/or assessment of evidence oral or documentary. It is a procedure which limits decision making within the purview of the claim, the petition in the case at hand. See IAL361 INC. v. Mobil Oil (Nig.) Plc. (1995) 5 NWLR (Pt.601) 9 CA and Brawal Shipping (Nig.) Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt.678) 387; (2000) 6 SC (Pt.11) 133.
In the second set of authorities, decisions therein were arrived at through a procedure that allowed the taking and assessment of evidence.
Which of the two sets of judicial authorities bound the petition tribunal depended upon what the applicable adjectival thereat provided.
Paragraph 50 of the First Schedule to the 2002 Electoral Act made the Federal High Court (Civil Procedure) Rules, 2000 applicable to proceedings at the tribunal.Order 25, rules 1,2 and 3 of the said rules of court provide:
“Order 25
1 .No demurrer shall be allowed.
2.(1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties or by order of the court or a Judge in chambers on the application of either party, be set down for hearing and disposed of any time before the trial.
(3) If, in the opinion of the court or a Judge in chambers the decision of the point of law substantially disposes off the whole action or any distinct cause of action, ground of defence, set-off counter-claim, or reply therein, the court or Judge in chambers may thereupon dismiss the action or make such other order therein as may be just.
(4) Not applicable.
(5) Not applicable.”
(Italicizing supplied)
The foregoing rules are clear and unambiguous.
By rule 1 of Order 25 it was not open to the tribunal to adopt the demurrer procedure in determining the objection raised by the 4th respondent regarding the appellants’ locus standi to institute their petition.
This makes the first set of authorities inapplicable to the facts of the instant case.
The procedure open to the 4th respondent in questioning the appellants’ locus standi to institute the petition is as provided for by the combined operation of rules 2 and 3 of Order 25. 4th respondent was to raise the point in his pleadings and by application on notice same matter was to be set down for hearing before trial. The court by virtue of these rules had the discretion to dispose a point so raised at or after trial.
The question to answer is was the court in a position to take the decision it did regarding the objection raised by the 4th respondent?
I think not.
It is instructive to note that the 1st to 3rd respondents who had the powers of conducting the election which results appellants sought by their petition to dispute and who were in the exclusive position of disclosing whether or not 2nd appellant had on the basis of exh. 5 withdrawn from contesting the election, provided no evidence to that effect. Theirs it was to depose to facts substantiating that the threat contained in exh. 4 had in fact materialized by virtue of the issuance of exh.5. There were no depositions from them also acknowledging the receipt of both exh.4 and exh.5. The tribunal should be informed by words, beyond documents which only spoke the written words ascribed on them, why 2nd appellant alone and none other who had equally signed exh.5 had no scores in the very election all were alleged to have withdrawn from contesting by reasons of the same exh.4 and exh.5. 1st-3rd respondents remained mute.
It does not appear safe and just that such averments that had come from an opponent should be so relied upon. A conflict between the averments of the appellants and 4th respondent had persisted and evidence beyond what was already in place had to be adduced to enable the tribunal justly decide either way.
It is beyond dispute that the powers conferred on the tribunal by Order 25 rules 2 and 3 are discretionary. They can only be meaningfully utilized if exercised judicially and judiciously. An exercise of such powers proceeded upon incorrect principles, wrong or unsubstantiated facts being perverse would be subject to review on appeal. See ACME Builders Ltd. v. KSWB (1999) 2NWLR (pt.590) 288 SC and Ngwu v. Onuigbo (1999) 13 NWLR (Pt.636) 512 SC. In the instant case the decision to strike out the appellants’ petition was premature and perverse because the necessary facts to justify such a conclusion had not been made fully bare to the tribunal.
But for the fact that its consideration of the 4th respondent’s objection had been aborted, the tribunal had by virtue of Order 25 rules 2 and 3 adopted a procedure akin to the one resort to which had given birth to the second set of judicial authorities referred to supra. The petition clearly contained the averments that the 1st appellant was a registered political party and that 2nd appellant had satisfied all conditions to and had sought to contest the elections of 19/4/03 on the platform of 2nd appellant but was excluded by the 1st-3rd respondents.
On the face of these simple facts the stand for the 1st appellant to institute the action had fully been founded. This has been provided for by section 133 and section 134(1) (d). The intent of the sections would be facilitated by so holding. In a situation such as the one in the instant case, where a candidate that had been nominated but appeared excluded from the election by the body conducting same it is only the platform on which the candidate sought to contest the election that would be vested with the locus standi to litigate the candidate’s cause.
The trend these days is to allow the petition to go to full trial.
Order 25 of the Federal High Court Rules allow for the trend. That is the manner in which justice would be manifestly seen to be done.
In the instant case where the 1st-3rd respondents deliberately declined from providing the necessary facts to enable the resolution of the issue in dispute regard being had to the rule in Falobi v. Falobi (1976) 9-10 SC 1, the issue whether or not appellants had abandoned their right to contest would only be manifestly resolved outside the averments for or against the 4th respondents’ motion.
It is equally very important to accept that the issue before us is not simply about correct construction of section 25 of the Electoral Act by the tribunal but more about the application of such a provision on incomplete facts. In the latter instance there is a fundamental error. It is not a mere irregularity.
From the foregoing, appellants’ 3rd issue is hereby resolved in part against the respondents. But the part resolved in appellants’ favour is most crucial in this appeal. The part provides the basis of
allowing the appeal and setting aside the ruling of the lower court.
In order not to pre-empt the outcome of the fresh trial into appellants’ suit that would eventually be ordered, it is circumspect that I decline delving into the other issues formulated by parties in this appeal.
Accordingly, this case is remitted for same to be heard on the merits by a tribunal differently constituted from the one which decision is hereby set aside. Appellants are entitled to costs put at N2, 500.00 award against each set of respondents.
Other Citations: (2003)LCN/1487(CA)
