Mr. Attie Samuel Wamini-emi V . Mr. Delight Igali & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
Before the Governorship and Legislative Houses Election Tribunal sitting at Yenagoa (to be henceforth; lower Tribunal). The Appellant and the 1st Respondent were candidates at the election into the Bayelsa State House of Assembly for the Constituency 3 in Southern Ijaw Local Government Area on 14th April, 2007. The Appellant was sponsored by the Action Congress party (AC) while the Peoples Democratic Party (PDP) sponsored the 1st Respondent for the election. The 6th Respondent statutorily charged with the conduct of the election returned the 1st Respondent through its officers as the winner of the election. Being dissatisfied and aggrieved by the return’ the Appellant on the 10th of May 2007 presented an election petition questioning and challenging it. The petition, which is in 22 paragraphs and runs from pages 4 – 10 of the printed record of appeal, did not specifically as is the usual practice, set out distinctly, the grounds upon which it was founded.
After service of the petition on the Respondents’ the 1st Respondent on the 1st of June 2007, filed a notice of preliminary objection and prayed for the following orders: –
(a) “AN order to strike out this petition as same is incompetent not being in compliance with the provisions of the constitution and the Electoral Act.
(b) An order striking out paragraphs 15, 16, 17 and 18 of the petition and reliefs 21 (iii) as same are incompetent and not cognizable by the Hon. Tribunal.”
The grounds of the objection were set out in the application thus:
(1) “That contrary to the express provisions of paragraph 4(1)(c) of the First schedule to the Electoral Act, 2006 as amended, the Petitioner’s petition does not contain the holding of the election and the scores of the candidates which it seeks to nullify by the petition before the Honourable Tribunal. This omission is fundamental and incurable.
(2) That the petition is fundamentally defective and not cognisable by this Honourable Tribunal not having been founded on any ground(s) for election petitions as provided by section 145(1) of the Electoral Act and contrary to the mandatory requirement of paragraph 4 (1) (d) of the First schedule to the Electoral Act,2006.
(3) That the petition having been brought on the ground that no elections were held in Southern Ijaw State Constituency three (3) on the 14th day of April, 2007 contrary to the prior announcements of the Respondent, the Petitioner’s remedy lies in an application for an order of mandamus in the Federal High Court to compel the 6th Respondent to conduct the election into the Southern Ijaw Federal Constituency three (3). An election petition relates only to an election already conducted.
(4) That paragraphs 15, 16, 17 and 18 together with relief 21 (iii) arising therefrom are pre-election matters not cognisable by this Honourable Tribunal and ought to be accordingly struck out.”
Written addresses by the parties in respect of the objection were filed and later adopted at the hearing. The lower Tribunal in a ruling delivered on the 19th of July, 2007 concluded thus: –
“In the final analysis we hold that the relief’s sought by the petitioner in paragraph 21 of the petition clearly require that the scores of candidate be stated, but have not contrary to paragraph 4 (1 (c) of the 1st Schedule and making the petition incompetent. In the end we uphold the entire preliminary objection dated 30/05/07 and overruler (sic) the objection to it. Consequetly we hold the petition to be incompetent and is hereby struck out.”
As a matter of course, the Appellant was not satisfied and felt aggrieved that his petition was struck out by the lower Tribunal and so to this court he came by way of an appeal against that order. The Notice of Appeal filed on the 7th of August, 2007 contained a single ground of appeal, which is a mere quotation of extracts from the ruling of the lower Tribunal. For full appreciation expedient to set it out as it is. The terms of the grounds are: –
“The Tribunal erred in law when it held that ‘we are of the view that having regard to this fundamental lapse or defect in the whole petition, but especially paragraph 13 of the petition which states the declaration of the 1st Respondent but failed to state the scores, as well as paragraph 3(1) (ii) wherein the petitioner stated his candidature and that of the 1st Respondent and others unnamed and unidentified without stating the score. In the final analysis we hold that the reliefs sought by the petition in paragraph 21 of the petition clearly require that scores of the candidate be stated, but have not contrary to paragraph 4(1) (c) of the 1st Schedule and making the petition incompetent.”
Pursuant-to the Practice Directions No. 2 of 2007′ briefs of argument were filed by the Appellant on the 11th of May, 2007 and 1st Respondent’s brief filed on 15th October, 2007. The 2nd – 6th Respondents’ brief filed on 7th December, 2007 was deemed properly filed on 10th of December, 2007. The 1st Respondent had also issued a Respondent’s notice on the 28th of August, 2007 indicating the intention to contend at the appeal that the decision of the lower Tribunal should be affirmed on grounds other than those relied on by that Tribunal. Arguments in respect of the Respondents’ notice were contained in the 1st Respondent’s brief mentioned above. The Appellant had filed a brief of argument on the 1st Respondent’s notice on the 5th of November, 2007 to which the 1st Respondent filed a reply on the 12th of November, 2007.
All the briefs of argument aforementioned were adopted by learned counsel at the hearing of the appeal on 11th February 2008.
As is to be expected, alone issue was distilled from the single ground of appeal by the learned Appellant’s counsel in the Appellant’s brief. The issue was adopted by the learned counsel for the Respondents in their respective briefs of argument.
The issue as framed by counsel was: –
“Whether having regard to the appellant does not claim to have had a right to be return (sic) in the disputed election, his failure to state the scores of the 1st Respondent who was returned by the 6th Respondent, constituted -a -fundamental breech of paragraph 4 (1) @ of the 1st Schedule to the Electoral Act, rendering the petition incompetent”.
In arguing the issue, learned counsel for Appellant started by saying that no dispute exist on the facts that 1st Respondent was returned as the winner of the election and that the scores of the 1st Respondent and all other candidates were not stated in the petition. It was contended by him that though paragraph 4 (1) (c) of the 1st schedule to the Electoral Act provides that an election petition shall state the scores of the candidates, the requirement would not apply where the scores of the candidates are ultimately no relevant to the determination of the live issues in the petition. According to learned counsel, every legislation is informed by policy and reason, the latter, said to be the soul of the law. He said the Electoral Act does not insist that non-compliance with paragraph a (1) (c) shall entitle the lower Tribunal to strike out a petition because paragraph 4 (6) gives a discretion and not a direction in case of non-compliance with the paragraph. Relying on the case of OJONG v. DUKE (2004) ALL FWLR (226) 336 @ 375, it was submitted by him that paragraph 4(1) (c) requires a petitioner who claims victory at an election to state the scores of the candidates to provide a yardstick or data with which to measure his claim to victory. That where an election is being questioned on grounds which do not put votes cast in issue failure to state the votes scored by the candidates will not render the petition incompetent. The case of OGBEIDE v. OSULA (2004) ALL FWLR (191) 1622 @ 1623-4 was cited on the submission. It was argued that a look at the Appellant’s petition would reveal that there are specifically two grounds upon which the petition was founded.
Learned counsel listed the grounds as follows: –
“1. The return of the 1st respondent as the winner of an election when allegedly materials were not distributed nor election officials on ground to conduct election; and
2. The 1st respondent was not qualified to contest the April 14th, 2007 election on grounds of non membership of a political party and for being underage.”
It was further submitted that in neither the body of the petition nor the reliefs sought did the Appellant make any claim to victory over the 1st Respondent or the other candidates. That the issues in the petition can squarely be determined without the scores of the candidates. In addition’ that the primary target of an election petition is the person returned as elected and so Section 14 4(1) of the Electoral Act places no obligation on an aggrieved person to make a candidate who lost an election a party. It follows therefore that the scores of other candidates who contented but lost the election cannot affect the competence of an election. Lastly, learned counsel said election petitions being rare species of civil proceedings that come once in four (4) years and so unnecessary technicalities should not be clung to and petitioners denied the opportunity of ventilating their grievances. He cited the case of OGBEIDE v. OSULA (supra) at page 1624 and urged us to allow the appeal.
For the 1st Respondent after setting out the provisions of paragraph 4 (1) (c), learned counsel submitted that each of the requirements of the paragraph is mandatory and a petition, which does not contain any of them is incompetent. He relied on the cases of IBRAHIM v. INEC (1999) 8 NWLR (614) 334, ABIMBOLA V. ADEROJU (1999) 5 NWLR (601) 100 @ 103, EZEOBI V. NZEKA (1989) 1 NWLR (98) 478, ERIOBUNAH V. OBIORAH (1999) 1 NWLR 616 said to be on the application of paragraph 4 (1) (c). Similarly the statement of MUHAMMAD, JCA (now JSC) at page 390 of OJONG V. DUKE (supra) was also cited in support of the submission and it was further argued that the scores of the candidates a re relevant and ought to have been placed before the lower Tribunal since the petition sought to the up turn of the election. It was contention of learned counsel that the return of the 1st Respondent was based on the scores at the election without which there could be no return. He said the scores are in issue as to the fact that there was no election as pleaded by the Appellant and such issue cannot be divorced from its legal consequence. On the authority of the statement by Uwais, JSC in BUHARI v. YUSUF (2003) ALL FWLR (174) 329 and the case of JEMIDE v. HARRIMAN (2004) ALL FWLR (233) it was submitted that election petition being sui genesis, the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition.-That the provisions of paragraph 4 (1) (i) have neither been relaxed nor waived by the statute and so the lower Tribunal was entitled to act as it did under Section 147 (3) of the Electoral Act.
We were urged by the learned counsel to dismiss the appeal and affirm the decision of the lower Tribunal.
Learned counsel for the 2nd – 6th Respondent opened his submissions on the issue with statement that the Appellant had only appealed against one of the grounds of objection dealt with by the lower Tribunal. In particular’ page 282 of the record of appeal was referred to by him’ Unlike his learned friend for the 1st Respondent’ the learned counsel fully set out paragraph 4 (1) but emphasized subparagraph (c) and he contended that the provisions were considered -in the cases of JEMISE v. HARRIMA, OJONG v. DUKE (Both supra), BASHIR V. SAME (1992) 4 NWLR (236) 491, OFFOMA V. AJEAGBO (2000) 1 NWLR (641) 498, EFFIONG V. IKPEME (1999) 6 NWLR (606) 260. According to him in all these cases, the compliance with the paragraph was herd to be mandatory and that a petition which does not conform with sub paragraph 1 is defective and deprives the lower Tribunal of jurisdiction since a condition precedent has not been fulfilled. OZOBCA V. ANAH (1999) 5 NWLR (601) 1 and MADUKOLO V. NKEMDILIM (1952) ALL NLR (II) 581 were cited. It was argued that the paragraph does not require a petitioner to claim victory before the scores of the candidates were to be set out since by law it is a cardinal requirement of a petition. In the absence of the scores’ counsel said the lower Tribunal had nothing to decide the return of the 1st Respondent with and that the Appellant was only to succeed on the strength of the case stated in the pleadings. He insisted that statutory requirements as to the contents of election petitions are treated as mandatory such that non compliance with any of them renders a petition void. It was the further submission of counsel that the failure by the appellant to state the scores of the candidates renders the petition void and liable to be struck out and we were urged to discountenance the submissions of Appellant on what relief was claimed since the filing of the petition was regulated. The cases of MINISTER OF WORKS & HOUSING V. SHITTU (2007) 16 NWLR (1060) 351, KHALIL V. YAR ADUA (2003) 16 NWLR (847) 446, BUHARI V. YUSUF (supra) were cited. We were urged finally to dismiss the appeal.
The learned counsel for the 1st Respondent submissions on the Respondent’s notice were to the effect that the omission or failure to state the holding of the election as required under paragraph 4 (1) (c) makes the Appellant’s petition incompetent. He relied on the cases of MUDIAGA-ERHUEH V. INEC (1999)12 NWLR (630) 288 & ERIOBUNAH V. OBIORAH (1999) 1 NWLR (616) and contended that the pleading that the election did not hold has not met the requirement. According to him, since the Appellant’s complaint is that the 6th Respondent did not conduct the election in question, the Lower Tribunal has no jurisdiction to deal with it since under section 285 of the 1999 Constitution it could only determined election petitions as to whether any person has been validly elected as’ a member of any legislative house. That section 285 presupposes that the petitions would arise from a conducted election and so where election was not conducted, the remedy lies with the regular courts and not election tribunals. Furthermore, that Section 145 (1) of the Electoral Act which sets out the grounds upon which an election may be questioned does not provide for non-conduct of an election.
In his reaction to the 1st Respondent’s notice, the learned counsel for the Appellant in his brief referred to earlier had submitted that since the 1st Respondent was returned as elected even though no e lection was conducted by the 6th Respondent’ the only way to challenge such are turn was by an election petition before the lower tribunal complaining about undue return or election. Election 140 (1) of the Electoral Act was cited and it was further argued that it is enough to allege that the person returned does not deserve to be so returned for a number of reasons. The case of EZEOBI V. NZEKA (supra) at page 496 was relied on by learned counsel who also contended that where a competent party demonstrate facts which shows undue return of another, the election tribunal will be vested with the jurisdiction to hear and determine same. It was his submission that whether there was election to justify the disputed return is a question on the fact to be determined during trial. We were urged to hold that the Electoral Act does not require stating the holding of an election where no election was conducted and to dismiss the 1st Respondent’s notice.
The 1st Respondent’s reply to the Appellant’s brief on the 1st Respondent notice did not react to the only germane issue, which was reviewed above. Rather it answered issues which did not properly arise in the Respondent’s notice which are not relevant for the determination of the only issue raised in the notice of noncompliance with paragraph (1) (c).
I now deal with the issue in the appeal as set out earlier. It may be recalled that the decision of the lower Tribunal was that the relief in paragraph 21 of the petition requires that the scores of the candidates be stated and that absence of the scores contravened paragraph a (1)(c)and makes the petition incompetent. I would look at both paragraph 21 of the Appellant’s petition as well as the provisions of paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006 closely. Paragraph 21 of the Appellant’s petition’ which is at pages 9-10 of the record of appeal runs thus:-
“21. WHEREFORE’ your petitioner prays that it be determined as follows:
i. That the declaration of the 1st respondent as the winner of the 14/04/07 House of Assembly election in constituency III in Southern Ijaw Local Government Area of Bayelsa State is null void and of no effect howsoever.
ii. That the 1st respondent was not dully elected at the House of Assembly constituency III election in Southern Ijaw Local Government Area of Bayelsa State on the 14/04/07.
iii. That the 1st respondent is not an eligible candidate for the 14/04/07 House of Assembly election in constituency III as he was not a registered member of a political party and also falsified his age to enable him contest the said election.
iv. That there was no House of Assembly election in constituency III in Southern Ijaw Local Government Area of Bayelsa State on the 14/04/07.
v. That the 2nd – 6th respondents declaration that the 1st respondent was the winner of the House of Assembly election in constituency III in Southern Ijaw Local Government Area of Bayelsa State is null and void and of no effect.
vi. That the 6th respondent should conduct a free and fair by-election in constituency III in Southern Ijaw Local Government Area of Bayelsa State as there was no election on the 14/04/07 in Southern Ijaw Local Government Area of Bayelsa State”
The brief provisions of paragraph 4 (1) (c) are as follows: –
“4. (1) An election petition under this Act “shall”
(c) state the holding of the election the scores of the candidates and the person returned as the winner of the election.”
Now ordinarily, every good citizen owes a binding duty to obey and ensure obedience and compliance with every and all laws properly enacted by our legislatives to govern every aspect of our personal and national lives. That duty is both moral and social as well as legal on all citizens and other people who live in our country. Consequently without any supervision, request, demand or coercion, we are all supposed and expected to comply and ensure compliance with the provisions of the laws specifically made for anything we intend or want to do. The duty and expectation are heavier on beneficiaries of any rights conferred by such laws in the exercise of such rights or claims in the rights’ .For instance, in claiming any right conferred by the Electoral Act, 2006, the person’s claiming entitlement to such rights are as a matter of course, supposed to or expected to fully comply with every provision of the Act or Rules made pursuant thereto in the exercise of the rights. This is because the rights are special and specific rules made to be followed in the claim for them by the beneficiaries.
In the present appeal, the provisions of paragraph 4 to the 1st Schedule to the Electoral Act makes provisions generally for the contents of an election petition. Then specifically in subparagraph (1) (c) sets out what “shall” be stated inter alia’ in the petition’ Prima facie therefore, a petitioner was by the law to set out every item listed in the provisions’ The reason for such detailed requirements is that the court and all the parties concerned and/or affected by the petition should have all relevant information and adequate notice of what the complaint is in the petition’ Provisions in pari materia with those in paragraph 4 (1) (c) were in the above premise considered by the courts before the 2006 Electoral Act came into being. In particular, the provision of paragraph 4 (1) (c) to the 1st Schedule to the now repealed Electoral Act 2002, which in fact was lifted wholesale and made part of the 1st Schedule to the 2006 Act’ was considered in many cases including ENEMUO V. DURU (2004) 1 NWLR (877) 75, AWUSE V. ODILI (2004) 8 NWLR (876) 481, MAGAJI V. BALAY (2004) 8 NWLR (876) 449, PDP V. TAIWO (2004) NWLR (876) 656.
In all these cases, the underling position is that the provisions are to be complied with, but compliance need not in all cases be absolute or strict but rather need to be substantial.
Put another way it is not every non-compliance with the provisions of the subparagraph that will affect the competence of an election petition regard being had to the provisions of paragraph 4 (6).
Where for instance a petitioner did not make the scores of the candidates the fulcrum of his petition and therefore no issue was made of them, failure to set out such scores would not render the petition incompetent on ground of non-compliance See also OWURU v. INEC(1999) 10 NWLR (622) 201, OGBEIDE v. SULA (supra) OJONG V. DUKE (supra). The position is a liberal departure from an earlier one taken that any non-compliance or failure to set out all the items required in paragraph 4 (1)(c) automatically renders a petition incompetent or even void.
One justification for the later position is that election petitions being special matters in nature should not be defeated by a mere omission which will not cause any or occasion prejudice to any of the parties and with which the genuine complaint in the petition could still be fully, properly and effectively determined. It cannot seriously be disputed that where the only ground upon which an election was questioned was that the person returned as elected was at the time of the election, not qualified to contest such election’ setting the scores of the candidates at the said election in the petition would be of any sincere material relevance in the determination of the petition. In such petition, scores of candidates would be of no moment in the determination of the qualification or otherwise of the person returned as elected.
In line with the above Position I would not consider the grounds upon which the Appellant had questioned the return of the 1st Respondent by the 6th Respondent as the winner of the disputed election.
I had at the beginning of the judgment noted that the Appellant did not specifically set out the grounds upon which this petition was founded. However, reading the entire paragraphs together, the petition is premised on the following grounds:-
(I) That there was no election or that election was not conducted on the 14th of April, 2007 into the constituency in question; and
(II) That the 1st Respondent was at the time of the said election not qualified to contest it because he was not a registered member of Peoples Democratic Party (PDP) and did not attain the age of 30 years required for eligibility for the election.
These are the grounds’ which the learned counsel for the Appellants had mentioned at paragraph 2.01 page 3 of the Appellant’s brief of argument in respect of the 1st Respondent’s notice filed on 5th November, 2007. The same grounds were also stated in the statement of facts in paragraph 2 at page 3 of the 1st Respondent’s brief of argument filed on the 15th October, 2007. The grounds of the petition therefore appear not in dispute between the Appellant and the 1st Respondent. Even learned counsel to the 2nd – 6th Respondents did not dispute them in his brief of argument. As a result the petition was founded on these two grounds.
Now, section 145 (1) of the Electoral Act 2006 provide the grounds upon which an election petition may properly and competently be questioned. The grounds are thus: –
“145. (1) An election may be 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.
(b) 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; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
The established and accepted interpretation of the provisions is that any ground not stated therein would not be a legally competent ground upon which an election can or may be questioned. In other words, an election may not and cannot be questioned on any other ground outside the ones set out in the provisions. See RIMI V. INEC (2005) 6 NWLR (920) 56, HARUNA V. MODTBBO (2004) 16 NWLR (900) 457, OBASANJO V. YUSUF (2004) 1 NWLR (877) 144, A.N.P.P. V. RETURNING OFFICER, ABIA SOUTH SEN. DISTRICT (2005) 6 NWLR (920) 140, NWABUCHT V. GIFT (1998) 12 NWLR (579) 522 in which provisions in pari materia with Section 145(1) were interpreted.
For that reason, even a passing glance at the two grounds upon which the Appellant sought to question the disputed election would readily show that ground (1); non conduct of an election is not one of the grounds set out in Section 1 45 (1). The said g round is therefore not a valid ground upon which an election may and can competently be questioned under the Electoral Act, 2006. The ground is accordingly an incompetent ground upon which the return of the 1st Respondent as the winner of the disputed election, may be questioned.
The above finding leaves us with the Appellant’s ground 2, that is, that on disqualification of the 1st Respondent to contest the election. Well, without much ado, this is the ground contained in Section 145 (1) (a) and so it is a valid and competent ground upon which, the disputed election may be questioned under the Electoral Act.
In fact, it is now the sole and only ground upon which the said election is being questioned by the appellant.
I have demonstrated before now that the current position on the law is that in the determination of whether a person returned as elected in an election was’ at the time of the election, not qualified to contest the election, scores of candidates at the election are of no moment because the issue could effectively be determined without them. That stores of candidates become an issue and so relevant only where a petitioner claims victory and prayed to be returned as elected. I have already set out the reliefs claimed by the Appellant earlier in this judgment’ which I have calmly read over and over again. I was unable to find even a semblance of a claim for victory by the appellant in any or all of them. Rather the pith of all the reliefs sought is that the 6th Respondent should conduct election in the constituency since non was conducted on the 14th April, 2007 or that the 1st Respondent was not qualified to have contested that election. There is nowhere in all the reliefs that the Appellant prayed the lower Tribunal to return him as elected in place of the 1st Respondent. I therefore do not see any practical need for the scores of any some or all the candidates at the said election to be stated in the petition of the Appellant. To insist, as the lower Tribunal did, that such scores must be stated even though the petition could properly and effectively be determined without them’ is to be aridly technical and to disregard the special nature of erection matters. Simply because the provisions of paragraph 4 (1) (c) mentions the scores of the candidates as one of the items to be contained in an election petition does not mean that in all and every circumstances, all the items listed in the subparagraph had to be sheepishly insisted on in the petition; lock stock and barrel. Once a petition has substantially complied with the requirements of the subparagraph and could be fully determined without any prejudice occasioned to the parties the fairness and justice of the matter would require that the parties be allowed to fully ventilate their complaints or grievances on their merit. To do otherwise in such a situation, would be to unjustifiably drive away petitioners from and shut the doors of the statutorily established venues at which they could legally have their grievances looked into and appropriate remedies provided. Let it be remembered that election matters/petitions transcend the parties therein and affect all electorates in the constituencies whose votes were cast at the election.
These petitions are seasonal and only come once in four (4) years at which the people get another opportunity to cast votes and for parties to approach the Tribunals for redress of complaints arising from the election. Tribunals should therefore be slow in using the slightest innocuous mistakes by way of commission or omission on the part of the parties that come before them for the redress to deny them the rare opportunity to complain in respect of such elections. They need to be liberal in their attitude towards the interpretation and application of the Electoral laws, which in the first place provided the right to the petitioners to seek redress before them. To adopt and insist on interpretation of the laws which is arcane and rancid would be to disregard their tenor, frustrate their intention and eventually defeat their purport or objects. The attitude of the superior courts particularly, in election matters has been to do substantial justice to the parties without undue regard to technicalities in their interpretation and application of the electoral laws. See OBI’ODU V. DUKE (2006) ALL FWLR (337) 537, ADSA v. ISHIE (2005) 6 SC (II) 42, WAKU v. ADGBA (2006) ALL FWLR (309) 1518, IBRAHIM V. SHERIFF (2004) 14 NWLR (892) 43 @ 72-9, NGIGE V. OBI (2006) 14 NWLR- (999) 1 @ 182-3, AJUDUA V. NWOGU (NO.1) (2004) 16 NWLR (818) 56, CHIA V. UMA (1998) 7 NWLR (556) 95, NWOBODO V. ONOH (1984) 1 SCNLR 1.
As far back as 1987, twenty-one years ago, the tone for substantial justice was echoed by NNAMANI JSC in the case of ERISI V. IDIKA (1987) 1 ALL NLR 382 @ 389 when he said:
“it remains for me to say with all respects, that substantial and well reasoned as this objection has been, it is nevertheless a further journey into the arena of technicalities. This court has resolutely set its face against them, preferring in decisions of which NOFIU SURAKATU V. NIGERIA HOUSING SOCIETY LTD & ANOR (1981) 4 SC 26 may be one of those marking the beginning of that stances to do substantial justice between the parties. The courts are courts of law but may the day never come when they cease to be courts of justice.
Recently, the proficient PATS-ACHOLONU, JSC (now late) in the case of ASSOCTAIED DISCOIJNT V. AMALGAMATED TRUSIEES (2006) 5 SC (PT.1) 32 @ 37-8 reiterated the need for courts to do justice rather than stick to technicalities in interpretation of the laws. This is what the learned jurist said:
‘There comes a time in the difficult but challenging art of science of adjudication and administration of justice when a court is faced with consideration of pure justice, and of course abstract law that seeks to shroud itself in concepts, dreariness and the theory of law. It is then that a court should dig deep into its reservoir of knowledge of its forensic arsenal borne out of experience and mete out justice that can easily be understood and appreciated by the common man in the street and the litigants. The courts are the products of the society. They are established to solve and give remedies to people who complain of having been shortchanged or wronged somehow. Therefore it should not allow undue technicalities likely to wreak havoc in the other party’s case to be introduced in an otherwise situations that do not admit of cloudiness or wooliness.”
There could hardly be a better way of driving the point home.
For the above reasons, I am of the view and find that the lower Tribunal erred in law and was wrong to have struck out the Appellant’s petition on the ground that the scores of the candidates at the election were not stated therein. The omission or failure to state the scores of the candidates at the election did not affect the competence of the Appellants petition. Even with the omission, the petition was competent having substantially complied with provisions of paragraph a (1) (c). In the result I find merit in the Appellant’s appeal and resolve the lone issue therein in his favour.
As was shown earlier on, the 1st Respondent had filed a Respondent’s notice urging the court to affirm the decision of the Tribunal on grounds other than that relied on by the lower Tribunal. The other ground submitted by the 1st Respondent’s learned counsel is that the petition did not state the holding of the election.
In this regard it may be recalled that the Appellants position has consistently been that the 6th Respondent did not conduct the election on the 14th April, 2007, as it was under a duty to have done statutorily, but all the same returned the 1st Respondent as winner. The requirement to state the holding of the election in paragraph 4 (1) (c) did not envisage that the Body charged with the statutory responsibility to conduct the election would fail, neglect or even refuse to do so at the appointed dates and places. As a result, where the unexpected happened, as pleaded by the Appellant in his petition, and election was not conducted, the requirement of the paragraph would be fully satisfied by a statement of the fact that no election was conducted. This is because it cannot be the intention of the legislative to deny the appellant the right conferred on him as a candidate in the election by Section 144 (1) (a) of the Electoral Act, because of the failure, neglect or refusal of the 6th Respondent to discharge the statutory duty and responsibility imposed on it by the same Electoral Act. It would be undoubtedly absurd and clearly unfair to penalise the Appellant for the commission and/or omission of the 6th Respondent in the non-conduct of election. Whether or not the 6th Respondent conducted the election was an issue of fact to be determined and settled at the trial of the petition which like I have shown earlier was grounded on the disqualification or non qualification of the 1st Respondent to contest the election.
In all the cases cited and relied on by the learned counsel for the 1st Respondent on the Respondent’s notice, elections were conducted and there was no pleading in any of them that election did not hold. The case of the Appellant is different and so the cases are not relevant authorities that apply to the Appellant’s petition.
Where election was conducted, a petition is required to state the holding of that election under the paragraph a (1) (c). But where as in the Appellant’s petition it was stated and pleaded that election was not conducted in the petition, that in my view is sufficient compliance with the provisions of the paragraph because the petitioner would not be required or even expected to state the holding of an election that did not hold. Pleadings are by law required to be statements of facts and not falsehood. For this reason, I find no merit in the 1st Respondent’s notice.
In the final result, I find merit in the appeal by the Appellant and allow same. The 1st Respondent notice is bereft of such merit and so it is dismissed. Consequently the decision of the lower Tribunal delivered on the 19th July 2007 in which it struck out the Appellant’s petition is hereby set aside.
The Appellant’s petition is hereby ordered to be heard on the merit by the lower Tribunal. Costs of N30,000.00 are assessed in favour of the Appellant against the 1st Respondent.
Other Citations: (2008)LCN/2719(CA)
