Kingsley Nonye Philips V. Independent National Electoral Comm. (INEC) (2009)
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CHIOMA EGONDU NWOSU-IHEME (Ph.D) J.C.A.
The Appellant in this appeal, commenced proceedings in the lower tribunal by way of an election petition against the Respondent in which he claimed the following reliefs:
(a) A declaration that the petitioner being the validly nominated Candidate of the Peoples Democratic Party be issued with a Certificate of Return for the Ika South Constituency House of Assembly, having scored the highest number of votes cast at the elections.
(b) An order that the petitioner be declared validly elected and returned his political party having polled the highest number of lawful votes cast at the election.
(c) An order that INEC issues the petitioner a Certificate of Return, the petitioner having been duly sponsored by a political party (PDP), having contested and won the elections for Ika South Constituency of the House of Assembly general Elections.
Before then, the Appellant had filed a suit at the Federal High Court claiming that having been validly nominated by his party the PDP and, presented to the Respondent in this appeal, the substitution was wrong and that he remained his party’s candidate for the election into the Ika South Constituency of the House of Assembly.
While the, suit, at the Federal, High Court was pending, elections were held for the constituency aforesaid. In the mean time, the, Federal, High C0urt gave Judgment to the Appellant granting declarations in terms of the reliefs sought in reliefs (1), (2) & (3). (See pages 36 and 43 of the record of appeal, and refusing reliefs 4, 5, and 6 (See pages 37 and 43 of the record of appeal). In effect the Federal, High Court declared that there was no cogent and verifiable reason for the substitution, of the appellant as the candidate of his party, and could not do so time for so doing having expired.
The Appellant relied on this Judgment in bringing the petition subject of this appeal. The grounds stated by the appellant for bringing the petition was pleaded in paragraph 12 of the petition as follows:
“(12) and your petitioner states that the, ground on which the petitioner relies is that he was validly nominated, validly contested and won the election.”
The Respondent filed a preliminary objection challenging the competence of the election on the ground 3, inter alia, that the ground relied upon by the petitioner was not recognizable under the Electoral Act, or the 1999 Constitution, and that a necessary party was not joined. On his part the Appellant filed a motion seeking to join one Martin Okonta.
The lower tribunal took arguments on the preliminary objection, and without considering ‘the application for joinder’ struck out the petition. Hence this appeal.
Counsel on both sides filed briefs of argument in which four issues were formulated and agreed upon by them as follows:
- Whether the Ruling of the tribunal, which is the subject matter of this appeal was not delivered in breach of the provisions of the constitution and where same is so delivered, whether the Ruling is not null and void.
- Whether the tribunal was right in holding that the petition of the Appellant was incompetent for non-joinder of the person returned when there was pending before the tribunal an application to join the person returned which application was brought to the knowledge or notice of the tribunal and the tribunal, went ahead to strike out the petition without determining the said motion one way or the other.
- Whether the tribunal was right in holding that the grounds of the Appellants petition were unknown to law especially in view of the provision of the constitution of the Federal Republic of Nigeria 1999.
- Whether the tribunal was right in holding that the Appellant as petitioner did not have the locus standi to present the petition.
In the brief of argument of the appellant, no reference was made of ground one of the grounds of appeal. The resultant effect is that that ground is abandoned.
On issue No. 1, the arguments of learned counsel for the appellant hinged on the failure of each of the five Judges that sat on the petition at the trial tribunal to write a separate and distinct opinion on the decision now on appeal. Reliance was placed heavily on the provisions of section 294(3) of the 1999 constitution which required each judge of a court of more than one judge to give a separate and distinct opinion in cases decided by them. Referring to the provisions of paragraphs 26(1) & (2) of schedule 1 to the Electoral Act 2006, learned counsel argued that those provisions were inconsistent with sections 294(3) of the constitution, and therefore void because, according to him, the Election Tribunal is one of the courts established by the constitution from sections 230-285 which created election tribunals.
In his reply on this issue, learned counsel for the 1st Respondent argued that the provisions of section 294(2) specifically limited separate opinion in judgments to the Court of Appeal and Supreme Court. Therefore, he submitted, the judgment on appeal in this matter is not void as the trial tribunal was not covered by the aforesaid provision of section 294(2) of the 1999 Constitution. Counsel further argued that the provisions of paragraph 26 of schedule 1 to the Electoral Act and the ruling of the trial tribunal did not contravene the provisions of the constitution. He distinguished the case of UKACHUKWU V. UBA 2006 All Fed. WLR pt. 300 1736 cited by the appellant’s counsel from the circumstances of this case, and concluded that each
member bf the trial tribunal did not need to write a separate opinion.
The arguments of learned counsel to the Appellant though superficially elegant and attractive, is patently misconceived because, although section 285 of the 1999 Constitution creates election tribunals, they are: special tribunals created for a special purpose to handle only election matters. They are not regular courts therefore they fizzle out with the end of the each election and the petitions arising therefrom only to be reconstituted during another election. In my humble but firm view, they are not courts created under section 6 of the 1999 constitution to which, in terms of numbers, the provision of sections 294(3) apply.
Besides, the judgment of the tribunal on appeal before us was signed by each of the five Judges that sat on the petition at first instance (see pages 130 – 131 of the record of appeal). Their individual signatures on the judgment is a clear indication that each adopted the opinion expressed therein as his own opinion.
There is, therefore, nothing in the judgment on appeal before us which has contravened the provisions of section 294(3) of the constitution even if that section were to apply to trial tribunals (which is not the case). The case of UKACHUKWU V. UBA supra relied upon by learned counsel for the appellant on this issue does not appear to me to fall into the present situation, as appears on the judgment in that report, each of the three Justices in that case delivered a separate judgment with out reference to any of the judgment delivered by the other justices so as to indicate whether each agreed with the others or any of them. Therefore each of the judgments standing separately and alone was a distinct judgment which could not be tied to any of the other judgments so as to show unanimity and concurrence or disagreement or dissension for purposes of determining the judgment of the court which sat as a panel.
Again, I do not see any thing in the provisions of paragraph 26 of schedule 1 to the Electoral Act that offends the constitution.
For emphasis, that paragraph is herein reproduced. It reads:
“26(1) All Interlocutory questions and matters may be heard and disposed of by the Chairman of the Tribunal or the presiding justice of the court who shall have control over the proceedings as a judge in the Federal High Court.
(2) After the hearing of the election petition is concluded, if the tribunal or court before, which it was I heard has prepared, its judgment but the Chairman or the presiding justice is unable to deliver it due to illness or any other cause, the judgment may be delivered by one of the members, and the judgment as delivered shall be the judgment of the tribunal or court and the member shall certify the decision of the tribunal or court to the Resident Electoral Commissioner, or to the commission.”
The foregoing provision, of paragraph 26(2) does not, by any stretch of or manner of interpretation make the writing of a separate judgment by a trial tribunal a desideratum.
In BALONWU V. IKEAZU 2005 NWLR pt. 942 page 479 at 530 where a similar issue was raised relating to a judgment of a trial tribunal my learned brother GALADIMA JCA, easily rejected that argument holding that the constitution does not require the writing of separate judgments by each member of an election tribunal. I agree with that view.
For the foregoing reasons, I will and hereby resolve the first issue in this appeal in the negative. Ground 5 to which it relates therefore fails.
In arguing issue NO.3, learned counsel for the appellant relying on the case of OBASANJO V. YUSUF 2004 9 NWLR pt.877 page 144 contended that the lower tribunal erred when it held that the grounds upon which the petition was founded were unknown to the Electoral Act in that the grounds set out in sections 145(1) (a) – (d) were not exhaustive since section 285(2) of the 1999 constitution of the Federal Republic of Nigeria gave the Tribunal power to determine whether any person had been validly elected into the offices enumerated in that section. On, issue NO.4, learned counsel also argued that the lower tribunal was erroneous when it held that the appellant did not have the necessary locus standi to present the petition. He further argued that where the question of locus standi is raised, it must be determined from the statement of claim or petition alone, and not from any other source, and contended that the averment in the petition clothed the petitioner with the necessary locus. More so, on the basis of the averment that the petitioner was declared the candidate of his party by the Federal High Court.
In his reply on the issues, learned counsel, for the Respondent argued in relation to issue NO.3 that the ground upon which an Election Petition is predicated must be those mentioned in section 144( 1) of the Electoral Act 2006 or those mentioned in section 285(2) of the 1999 Constitution. The contended, must be specifically pleaded as required by section 145(1) (a)-(d) of the 2006 Electoral Act or 285(2) of the 1999 Constitution;
On issue NO.4, learned counsel argued that it is only a candidate who lost in an election and or a political party who participated in an election that can present an election petition under the Electoral Act on the authority of BUHARI V. OBASANJO. In effect the Respondent’s counsel is arguing that having claimed to have won an election the appellant cannot question the same election he claimed to have won, and therefore had no locus.
Sections 145(1) provides the grounds upon which an election may be questioned. For ease of reference that section is reproduced hereunder.
“145(1) An election maybe questioned on any of the following grounds:
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election.
that the election was invalid by reason of corrupt practices or non -compliance with the provisions of this Act;
(c) that the Respondent was not duly elected By majority of lawful votes cast at the election”.
Also section 144( 1) & (2) provides for persons that may present Election Petitions and those against whom they may be presented.
Thus:
“144 (1) An election petition may be presented by one or more of the following persons:
(a) a candidate in an election;
(b) a political party which participated in the election.
(2) The person whose election is complained of is in this Act referred to as the Respondent but if the petitioner complains of the conduct of an Electoral Officer a Presiding Officer a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to void the petition if the commission is made a party”.
In addition to these grounds section 285(2) of the 1999 Constitution gives power to a Tribunal to determine petitions as to whether a person had been elected to certain offices. To be competent therefore, a petition before a trial Election Tribunal must be anchored either on the ground set out in section 145 (a) (d), of the Electoral Act 2006, or section 285 (2) of the 1999 Constitution and by persons and against persons mentioned in section 144(1) & (2).
On the foregoing score, let me now look at the grounds set out in the appellant’s petition before the lower Tribunal. The ground relied on by the appellant is clearly set out in paragraph 12 of his petition at the lower tribunal. That paragraph reads:
“(12) and your petitioner states that the ground on which the petitioner relies is that he was validly nominated, validly contested and won the election”.
All other averments in other paragraphs of the petition are facts Founding or supporting the ground. They are not the grounds themselves. By paragraph 12 of the petition aforesaid, the appellant pleaded not only that he contested the election in question, but also won same. Election petitions are not presented by those who won an election, but by losers aggrieved by the conduct of an election against winners. In other words, there must be a loser ,as petitioner and a winner as Respondent. That is the essence of the combined effect of provisions of sections 144(1) & (2), 145(1) (a) – (d) of the Electoral Act 2006, and 285(2) of the 1999 Constitution.
Therefore, the foregoing sections of the law in relation to election petitions envisage the presentation of an election petition by a person challenging the election or return of another declared as the winner of an election in which that winner is a Respondent and not the petitioner. This view was aptly captured in the opinion expressed by KALGO JSC in BUHARI V. OBASANJO supra wherein the learned justice of the Supreme Court in interpreting the said section 144 (2) observed inter alia as follows:
“Under the subsection an election petition can be filed by the candidate (who lost the election)or any political party who participated at the election or the two of them jointly …”
This point was well appreciated in the judgment of the lower tribunal when, it observed in its judgment at pages 120, 127-128 as follows:
“section 140(1) of the Electoral Act 2006 (herein after simply referred to as the extant Electoral Act), provides to the effect that an election or’ return under it can only be questioned by an election petition complaining of an undue election or undue return in which the person elected or returned is joined as a party. The extant electoral act in section 144(1) provides for those who can present an election petition. The extant Electoral Act in section 144(2) again provides that the person whose election is complained of is referred to as the respondent….
It would appear very clear from the provisions, of sections 140 & 144(2) referred to above that the situation in which a person who won an election (as the petitioner in the instant petition claims) and is the very person that presents an election petition against the election which he claims to have won is not one in which the Electoral Act has conferred a right to present a petition on the winner of the said election. The winner of an election in the premises, shown, by the petitioner to be his situation in the instant petition must necessarily be a respondent in an election petition presented by a loser in the election …”
The state of the law as propounded by the lower tribunal as quoted above, in the circumstance of this case, in my view is impeccable and unfaultable. I therefore agree with the submissions of the learned counsel for the Respondent that the ground stated by the petitioner for, presenting this petition is not one encompassed under the Electoral Act. This renders the petition incompetent. I therefore resolve issues Nos. 3 & 4 in the affirmative. Grounds 7 and 8 fail.
On issue No. 2 which relate to grounds 2, 3 and 6 learned counsel for the Appellant had argued that the tribunal was wrong in striking out the petition without first determining the motion for joinder dated 13/7/07 which was before it at the time it stroke out the petition.
In his reply, counsel for the Respondent contended that the lower tribunal was right in striking out the petition for incompetence which affected its jurisdiction over the petition which point it raised by an application dated 4th July, 2007.
From the records of appeal in this matter, it is clear that there were two motions filed by the parties at the lower tribunal, the one dated 4/7/07 by the Respondent seeking to strike out the petition for incompetence (see pages 64-74 of the record of appeal) and the other dated 12/7/07 by the Appellant seeking to join one Martin Okonta in the petition (see pages 77-92 of the record of appeal). One of the grounds relied on by the Respondent in seeking to strike out the petition, as shown in its motion paper at page 64 of the records reads:
“(4) The petition does not contain any valid ground and or facts relating to grounds known to Electoral Act 2006”.
The rule as to the priority of hearing multiple applications pending before a court where one of the applications seeks to strike out or dismiss a case on ground of irregularity in procedure and the other seeks to regularize the irregularity is that where the complaint is a failure to take a step as provided by the rules or in accordance with an order of court made under the rules, there is already in existence a valid proceeding before the court. In such a case, if there are two motions, one seeking to regularize a point of non compliance with a rule or an order of court and the other seeking to strike Out or dismiss the proceedings on the ground of non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed before considering the application to strike out or dismiss. See NALSA V. NNPC (1991) 8 NWLR pt. 212 652 at 657.. But where there are before the court an incompetent suit or process, a notice of preliminary objection to strike it out, an application purporting to correct, the error but which is incapable of validating the incompetent process because it is itself exfacia defective, it does not matter which is taken first, for either way the process will be struck out: See NALSA V. NNPC supra at page 659.
In the instant case, the application to strike out the petition on ground of incompetence raised a formidable point of lack of proper ground for the presentation of a petition as envisaged under the Electoral Act and, the constitution. I have already discussed that point under issue Nos. 3 & 4 and reached a conclusion that the ground under which the petitioner brought his petition is not cognizable either under the Electoral Act or the constitution and therefore not only incompetent, but also exfacia incurably defective. The application for joinder had no capacity to validate the incompetent process, namely the petition. Therefore on the authority of NALSA V. NNPC supra the tribunal was well within the law to have taken the application to strike out first since it is a point that touched on jurisdiction. Here a distinction must be drawn between a mere irregularity that can be cured such as failure to comply with a rule of procedure or an order of court which can be corrected and an incurably and fatally defective process. The case in hand falls within the later.
The foregoing apart, the decision of the supreme court in OKEREKE v. YAR’ADUA 2008 12 NWLR Pt. 1100 page 95 at 118 has emphasized the fatal consequences of failure to comply with a statutory requirement in election matters which by that decision results in the dismissal of the process that has not complied with the law.
I am not unaware of the decision of this court in appeal No. CA/B/EPT/177/2007 CHARLES UDOGWU ONYEKWE V. INEC delivered on the 10th of June 2008, but I wish to emphasize that the facts and circumstances of that case are distinguishable from those of the present one. Besides by the time the judgment in that case was given, the case of OKEREKE V. YAR’ADUA had not been published, and so this court was not aware of that decision.
In the light of the foregoing, I resolve the second issue in the affirmative. Accordingly grounds 2, 3 and 6 of the grounds of appeal fail.
In the final result, all the grounds of appeal haven failed, this appeal fails, and it is hereby dismissed.
I make no order as to costs.
Other Citations: (2009)LCN/3130(CA)
