Mr. Charles Ikechukwu Nwadiani V. Ms Doris Amina Olayemi Uboh & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Appellant, a member of the Action Congress [AC], was one of the candidates at the election into the House of Representatives for the Ika Federal Constituency of Delta State. Dissatisfied with the scores declared by INEC, which put him in the fourth place, he filed a Petition at the Delta State National Assembly, Governorship and Legislative Houses Election Petition Tribunal, wherein he contended inter alia that he was the only one qualified to contest the election because the 1st Respondent was charged before a United States District Court with offences involving dishonesty and fraud; the 2nd Respondent did not resign, withdraw or retire from his employment 30 days before the date of the election; and the 3rd Respondent is a member of the Reformed Ogboni Society. The 1st Respondent, the candidate for Peoples Democratic Party [PDP], who was declared duly elected by INEC, entered a “Conditional Appearance” and later filed a Reply to the Petition.

The 2nd Respondent also entered a Conditional Appearance, and filed a Reply and a Notice of Preliminary Objection to the Petition. The 3rd Respondent did not enter any appearance or participate in the proceedings at the Tribunal. The 4th and 5th Respondents filed an application for extension of time to enter appearance and file their joint Reply to the Petition, which had not been moved before the 1st Respondent filed a Motion on Notice praying for –

“An order striking out the Petition as being incompetent on grounds that the Petitioner failed to pay adequate statutory fees at the filing of the Petition”.

The Motion was supported by a 6-paragraph Affidavit, wherein the deponent averred as follows in paragraphs 3 thereof –

3. I am informed by M.I. Mozia (Mrs.) of counsel and I verily believe that:

(a) A Petitioner while filing his Petition ought to pay full deposit for cost and filing fees on each Respondent who took part in the Election in his Petition;

(b) That the 2nd and 3rd Respondents were also candidates in the same election.

(c) Allegations were made against the 2nd and 3rd Respondents in the Petition. Orders were also sought to be made against them in the Petition.

(d) That the Petitioner paid the deposit for cost and filing fees on only the 1st Respondent.

The Appellant himself deposed to a 5-paragraph Counter-Affidavit wherein he averred as follows in his own paragraph –

3. That I know as a fact that I paid the filing fees as assessed by the Registry of this Tribunal for the Petition.

In its Ruling delivered on 29th November 2007, the Tribunal struck out the Petition on the ground that the non-payment of filing fees for three separate Petitions was a “substantial irregularity that affects the foundation of the Petitioner’s Petition”. Aggrieved by the decision, the Appellant appealed to this Court with a Notice of Appeal containing eight Grounds of Appeal, and eight Issues for determination were distilled there-from in the Appellant’s brief of argument prepared by Ikhide Ehighelua, Esq. The Issues are –

1. Whether the Ruling of 29/11/07 by which the Tribunal struck out the Petition of the Appellant was not delivered in breach of the provisions of the extant Constitution of the Federal Republic of Nigeria and if so delivered whether same is not void. (Ground 1)
2. Whether in view of the numerous steps already taken by the 1st Respondent in the proceedings the Tribunal was right in holding that the default complained of was a substantial irregularity, which affected the foundation of the Petition. (Ground 2)
3. Whether the Tribunal was right in failing to abide by the doctrine of stare decisis in respect of decisions of superior Courts cited before it. (Ground 3)
4. Whether the Tribunal was right in holding that a Petitioner filing a Petition has responsibility in assessing filing fees. (Ground 4)
5. Whether the Tribunal was right in attributing the default in this case (which default is not conceded) to the Appellant. (Ground 5)
6. Whether the Tribunal was right in the circumstances of this case to hold that adequate and appropriate filing fees were not paid.(Ground 6)
7. Whether the Tribunal was right in refusing the application of the Appellant to direct the Registry to do a proper assessment when –

(a) It was obvious that the Petitioner paid exactly what the Registry assessed him to pay.

(b) The defect was curable.

(c) The Tribunal was punishing a litigant for an error committed by its Registry. (Ground 7)

8. Whether the Tribunal was right in holding that it cannot forgive the Appellant. (Ground 8)

At the hearing of the appeal, Mr. I. Ehighelua applied to withdraw Issue 1 distilled from Ground one of the Appellant’s Grounds of Appeal, and the said Ground of Appeal and Issue are struck out.

The 1st Respondent filed a Notice of Preliminary Objection in her own brief of argument prepared by Harold Erhabor, Esq., wherein she contended that Ground three of the Appellant’s Grounds of Appeal and Issue 3 distilled there-from are incompetent and should also be struck out. The said Ground complains that –

“The Tribunal erred in law when it held:-

“This Tribunal wishes to observe at this juncture finds it intriguing that Mr. Ikhide Ehighelua of learned counsel for the Petitioner being well aware that Ruling in this Application was slated for 29/11/07, sent in a list of Additional Authorities dated as late as 25/11/07which got to the Tribunal late in the evening of the same date”.

The 1st Respondent’s contention is that this Ground should be struck out because it is not directed at the decision of the Tribunal.

It was further submitted that the Tribunal’s observation was a mere passing remark, which is not appealable, and that Issue 3 distilled from it is incompetent and ought to be discountenanced, citing Nwankwo v. E.D.C.S.U.A (2007) 5 NWLR (Pt 1027) 377; Nfor V. Ashaka Cement Co. Ltd. (1994) 1 NWLR (Pt. 319) 222; and Akpan V. The State (1994) 9 NWLR (Pt 368) 347.

The 3rd Respondent filed a similar Notice of Preliminary Objection and proffered the same arguments supported by the same authorities in his Brief of Argument prepared by A. Ojo, Esq.

The Appellant, however, submitted in his Reply Brief that the said Ground three complains of the attitude of the Tribunal to a decision of a superior Court, which by the doctrine of stare decisis is binding on it; and in failing to abide by that doctrine, it committed a legal error against which an appeal can lie, citing Emsilv Nig. Ltd. v. Emunemu (2007) ALL FWLR (PT. 374) 354, Odinigi V. Oyeleke (2001) 2 S.C. 194, Adeleke Vs. Asani (2002) 8 NWLR (Pt 768) 26.

I agree with the 1st and 3rd Respondents; it is not every comment or words that come out of the mouth of the Judge that should be the target of an Appellant’s grievance in an appeal, which is against a ratio decidendi [the reason for deciding] anyway, and not against an obiter dictum, which is Latin for “something said in passing”, and is a remark made or an opinion expressed by a Judge, in his decision upon a cause, “by the way” – that is, incidentally or collaterally, and not directly upon the question before the Court – see Black’s Law Dictionary: 7th Ed. In this case, after making the comment complained against in relation to the additional authority in question, the Tribunal went on to say-

“This notwithstanding, the Tribunal has perused it. It is the Court of Appeal Ruling in Unreported Suit No. CA/A/EP/3/07 Alhaji Atiku Abubakar & 2 Ors. V. Alhaji Umar Musa Yar-Adua & 809 Ors ….”

The Tribunal went on to consider the merit or otherwise of the additional authority submitted by the Appellant, and even quoted an observation made therein by Ogebe, JCA (as he then was). Thus, there is no basis for the Appellant’s Ground three; the 1st and 3rd Respondent’s separate objections thereto are upheld and the said Ground and Issue 3 distilled there-from are hereby struck out.

The 1st Respondent formulated three Issues for Determination in her brief and with Grounds 1 and 3 of the Grounds of Appeal out of the way, the other two Issues are-

1. Whether paragraphs 3(4), 36(1) and 45 of the first schedule to the Electoral Act, 2006 apply to the Petition of the Appellant as to warrant the payment of not less than the sum of N1,000.00 in respect of each of the 1st, 2nd and 3rd Respondents’ as three separate petitions, the non-payment of which justified the Tribunal striking out the Petition.
2. What amounts to taking a fresh step in an election petition proceeding as contemplated by paragraph 49(2) of the said 1st schedule to the Act.

The 3rd Respondent’s only other Issue for Determination is-

“Whether paragraphs 3(4), 36(1) and 45 of the first schedule to the Electoral Act, 2006 apply to the petition of the Appellant as to warrant the payment of not less than the sum of N1,000.00 in respect of each of the 1st, 2nd and 3rd Respondents as three separate petitions, the nonpayment which justified the Tribunal striking out the petition”.

The 4th and 5th Respondents formulated three Issues in their brief prepared by O.A. Adeyemi, Esq., and the remaining two are-

1. Whether in view of the numerous steps taken by the 1st Respondent in the proceedings the Tribunal was right to hold that it was a substantial irregularity which affected the foundation of the petition.
2. Whether the Tribunal was right in the circumstances of this case to hold that adequate and appropriate filing fees were not paid.

At this stage, I must say that because the Appellant filed eight Grounds of Appeal does not mean that he must distill a matching set of eight Issues for Determination to go with the eight Grounds. What is more, Issue 7 was further split into (a), (b) and (c), which is totally unacceptable. The splitting of Issues, which can be subsumed into 1 or 2 core issues, serves no justifiable purpose; rather they only succeed in obscuring and trivializing vital issues.

The ideal is to formulate an issue as encompassing more than one ground of appeal- see Agbetoba V. Lagos State Executive Council (1991) 4 NWLR (Pt 188) 664 where Karibi-Whyte, JSC observed-

“….The practice of splitting grounds of appeal is likely to confuse consideration of principal issues which are essential before the determination of the case, the subsidiary issues are formulated towards the elucidation of the principal. They cannot justifiably be regarded as issues for determination….”

In my view, the two core Issues that will suffice in this appeal are whether the 1st Respondent waived her right to complain, and whether the Appellant had a responsibility in assessing filing fees.

On the issue of whether the 1st Respondent waived her right, the Appellant argued that by virtue of Paragraph 49 of the same 1st Schedule to the Electoral Act 2006, non-compliance with any of its provisions is an irregularity; that the 1st Respondent had taken numerous steps in the proceedings before filing the Application; and that by taking the steps she took in the proceedings and allowing two months to elapse before bringing the Application, she had waived her right to complain of any non-compliance, citing Odu’a Investment Co. Ltd v. Talabi (1997) 7 SCNJ 600 AT 654; Ariori V. Elemo (1983) 1 SC 13; Akpokiniovo V. Agas (2004) All FWLR (Pt. 227) 427; Maduabu V. Ray (2006) All FWLR (Pt 300) 1671; Biyu V. Ibrahim (2004) All FWLR (Pt. 220) 1323; Tafida V. Bafarawa (1999) 4 NWLR (Pt 597) 70; Mobil Prod. Ultd. V. LASEPA (2003) FWLR (PT. 137) 1029;Eze V. Okechukwu (2003) FWLR (Pt. 140) 1710; Bank of Ireland V. Union Bank (1998) 61 LRCN 4307, Harkness V. Bells’s Asbestos Eng. Ltd. (1967) 2 QB 729 at 735 -736, and Buhari V. Yusuf (2003) FWLR (PT. 174) 329

at 386, on the submission that “the Tribunal cannot amend the law by creating what it described as “substantial irregularity”.

The 1st Respondent, however, countered that even though she had filed a Reply to the Petition when the objection was taken, other Respondents had not filed their respective Replies and evidence had not been led, thus, she was not foreclosed from raising the objection, citing Nwoke v. Ebeogu (1999) 6 NWLR (Pt 606) 247, Bichi v. Haladu (2003) 14 NWLR (Pt 841) 624, Tafida v. Bafarawa (1999) 4 NWLR (Pt 597) 70, that the decision in Odua Investment Co. Ltd. V. Talabi (supra) is not applicable as jurisdiction is in issue, citing Bichi v. Haladu (supra); that the Tribunal rightly regarded the non-payment of appropriate fees as one that touches on jurisdiction, citing Obiekwe v. Obi (2005) 10 NWLR (Pt 932) 40;and that jurisdiction can be raised at any time, citing Amos & Ors. V. Alabi & Ors (2003) 12 NWLR (Pt. 835) 537.

The 3rd Respondent did not address this issue in his brief. The 4th and 5th Respondents, however, argued in theirs that the Application is premised on jurisdiction, so the defect cannot be a mere irregularity which does not go to the root of the Petition, citing Madukolum V. Nkemdilim (1962) All NLR (PT. 581) 589, that jurisdiction is a threshold issue and a life line for continuing any proceeding, which can be raised at any time, citing Galadima V. Tambai (2000) 11 NWLR (PT. 677) 1; that the question of whether or not a Respondent has taken fresh steps cannot prevent him from raising the question of jurisdiction; , citing Buhari V. Obasanjo (2003) 17 NWLR (PT. 850) 423, and that the Tribunal rightly held that the issue of jurisdiction cannot be curtailed by paragraph 49, citing Buhari V. Obasanjo (supra), Elabonjo V. Dawodu (2006) 6 SCNJ 204, Petro Jessica Enterprises Ltd. Leventis Technical Co. Ltd. (1992) 5 NWLR (PT. 244) 675, and Akpaji V. Udemba (2003) 6 NWLR (PT. 815) 169 decided by the Court of Appeal.

The Appellant, however, referred us to the decision of the Supreme Court in the same case of Akpaji V. Udemba (2009) All FWLR (PT. 471) 8011, which has obviously laid this matter to rest. In that case, the Supreme Court held that failure to pay the correct filing fees does not raise the issue of Jurisdiction, rather that it is a mere irregularity, which when taken timeously or when acquiesced in, becomes incapable of affecting the proceedings of the Court. Paragraph 49 of the First Schedule to the Electoral Act, provides –

1. Non-compliance with the provisions of this schedule, or with a rule of practice for the time being operative except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with on such terms as the Tribunal or court may deem fit and just.
2. An application to set aside an election Petition or a proceeding resulting there-from for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh steps in the proceeding after knowledge of the defect’. (Highlight mine).

The Appellant’s position is that the 1st Respondent had taken steps in the proceedings, which thereby precluded her from complaining. The 1st Respondent conceded that she had filed her Reply to the Petition but argued that pleadings had not been concluded as other Respondents had not filed their respective Replies and evidence had not been led, so she could not be said to have taken steps.

I cannot buy into that line of argument; it clearly lacks merit. The 1st Respondent has nothing to do with the other Respondents, and cannot pass the buck that actually stops at her table to them. She was the one who filed the Application praying the Tribunal to strike out the Petition, and what paragraph 49(2) of the First Schedule to Act says is that an application to set aside an election Petition shall not be allowed unless made within a reasonable time and when the party making it had not taken any fresh steps in the proceedings after knowledge of the defect complained of.

The Petition is dated 25th May 2007; her Memorandum of Appearance, wherein she entered a conditional appearance is dated 12th June 2007; she filed her Reply to the Petition on the 25th of June 2007, wherein she denied all the allegations therein and made no mention of any objection; she filed an Answer to the Pre-Hearing Information Sheet TF008, which is dated 20th August 2007; and filed the Application to strike out the Petition as being incompetent on that 20th August 2007, more than two months after she entered a conditional appearance as the 1st Respondent.

I will not be wrong if I say the 1st Respondent has no case. The Application was not taken timeously, and she cannot be heard to say that since the other Respondents had not perfected their part in the proceedings, she should come in under their umbrella.

It goes without saying that this Issue cannot be resolved in her favour but in favour of the Appellant, and it is so resolved. The other issue relates to the Application brought pursuant to Paragraph 36(1) and 45 of the First Schedule, which provides- “36(1) – The fee payable on the presentation of an election petition shall not be less than N1,000.00”

“45 – Two or more candidates may be made Respondents to the same Petition and as the case may be, for the sake of convenience be heard at the same time but for all purposes (including the taking of security) the Petition shall be deemed to be a separate Petition against each of the Respondents”.

The Appellant as Petitioner filed what the Tribunal referred to as a “Triple-Deck Petition” – one Petition against three Respondents; but he paid filing fees for only one Petition, and the Tribunal held –

“- – The Petitioner’s counsel has unwavering duty to properly guide the Tribunal’s Registry as to the status of the Petition otherwise the Petitioner should take blame for any consequences of default in payment of filing fees- -. It will obviously be absurd to assign to the Registry the responsibility of determining the status of a Petition before assessment of fees. Even if there is such expectation, it could only be a loose one and so in the end, the Petitioner’s counsel has greater and indeed firm responsibility in that respect (Highlight mine).

At the end of the day, it found that Appellant “did not pay the appropriate fees”, and on the prayer that the Petition be sent back to the Registry for a proper assessment, it further held as follows-

“- -To grant the prayer of the Petitioner’s counsel will lead to absurdity. For instance, there will be uncertainty as to when the Petition was filed. That prayer is surely irreconcilable with Section 141 of the Electoral Act 2006, which provides that an election petition under the Act shall be presented within 30 days from the date the result of the election is declared. There is no provision for later assessment or reassessment and payment of filing fees. The prayer cannot therefore be conveniently granted and is refused. – – On the whole, this Tribunal holds that the non-compliance complained of in this Application is of substantial irregularity that affects the foundation of the Petitioner’s Petition, and which the Tribunal cannot forgive.

The Appellant’s contention on this issue is that it is the duty of the Registry to assess filing fees, citing ACB Ltd. V. Henshaw (1990) 1 NWLR (PT. 129) 646, Okolo V. Union Bank (1998) 2 NWLR (PT. 539) 618 at 639, that the Tribunal’s conclusion is highly speculative, citing Edosa V. Zaccala (2006) All FWLR (PT. 306) 881, Ivienagbor V. Bazuaye (1999) 70 LRCN 2256, Ibrahim V. Aliyu (2000) FWLR (PT. 7) 1081; and that where a litigant pays what has been assessed by the Registry, he cannot be held liable for any default attributable to the Registry, citing Saude V. Abdullahi (1989) 4 NWLR (Pt. 166) 387, Oshinowo V. Oshinowo (2005) ALL FWLR (Pt. 281) 1698, Nwani V. Bakari (2005) ALL FWLR (PT. 281) 1803, Akpaji V. Udemba (2003) 6 NWLR (PT. 815) 169 CA, and Akpaji V. Udemba SC (supra). Furthermore, that there is a whole world of difference between non-payment of filing fees and non-payment of adequate or sufficient filing fees, and the non-payment of adequate filing fees cannot be visited with striking out an entire process; and that the Tribunal should have allowed the Petition to proceed against the one paid for, citing Nwobodo V. Onoh (1984) 1 SC 1, Aondokaa & Ors. V. Gyegweh & Ors (1989) 1 NERLR 39, Anowey V. Ihekere & Ors. (1991) NRLR 56.

On the question of whether the Tribunal was right in refusing the Application to direct the Registry to do proper assessment, the Appellant submitted that if at all there was improper assessment (which was not conceded), the mistake being from the Registry, the Tribunal should have sent the Petition back it, citing Eke V. Eluwa (2000) 14 NWLR (PT. 688) 560, Nwani V. Bakari (supra), ACB Ltd. V. Henshaw (supra), Oshinowo V. Oshinowo (supra). The 1st Respondent, however, argued that the duty is on the Appellant to pay the requisite filing fees and not the Registry; and that if the Tribunal had acceded to his request to send the Petition back for proper assessment, it would been tantamount to extension of time for him to file his Petition, which the Tribunal had no jurisdiction to grant, citing Eminue v. Nkereuwen & Ors (1966) 4 NSCC 51, Co-operative and Commerce Bank (Nig.) PLC v. Att.-Gen. Anambra State & Ors (1992) 8 NWLR (Pt. 261) 528, Nuhu Sani Ibrahim v. INEC & Ors (1999) NWLR (Pt. 614) 334, General Muhammadu Buhari & Ors. V. Alhaji Mohammed Dikko Yusuf (2003) 14 NWLR Pt 841) 446, Rimi v. INEC (2004) 15 NWLR (Pt. 895) 121, and Galaudu v. Kamba (2004) 15 NWLR (Pt. 895) 31.

The 3rd Respondent canvassed the same arguments word for word and relied on the same authorities as the 1st Respondent. The 4th and 5th Respondents maintained the same position that the Tribunal was right to hold as it did. It was submitted that the Appellant’s attempt to shift the blame onto the Registry cannot avail him, citing Isreal Olu Olaniyonu V. Professor Awa & 20 ors (1989) 5 NWLR (Pt 122) 493; and that the effect of not paying the N3,000.00 is that the Petition is incompetent and the Tribunal will have no jurisdiction to entertain same, citing Emeka A. Onuorah V. Dr. C. C. Okeke & ors [2005} 10 NWLR [PART 932} 40 at 55/58.

At this juncture, it must be made clear that the issue in this appeal is not that filing fees were not paid, after all the Tribunal found as a fact that the Appellant paid filing fees for one Petition; the bone of contention is that adequate filing fees were not paid. Again, the decision of the Supreme Court favours the Appellant. Ogbuagu, JSC had this to say in Akpaji V. Udemba SC (supra) –

“…..The error or inadvertence of the Registrar cannot be said to be that of the Respondent. The Registrar saw and assessed the Statement of Defence. If he must read the entirety of the Statement before assessing it – – and he failed to correctly or properly to do so, his error or omission, cannot be ascribed to be that of the Respondent and/or his learned counsel. — I, therefore, hold that that the non-payment in full of the appropriate fees was a mere irregularity and did not vitiate the proceedings and it has nothing to do with the jurisdiction of the trial Court At worst, it is voidable and not void As can even be seen, it is not the failure to pay an assessed filing fees, but non-payment of the appropriate or requisite fees – (i.e. inadequate fees). If the Registrar/Registry under-assessed – i.e. not assessed correctly, can it be said by any stretch of imagination that the fault to assess adequately is that of a litigant or a lawyer or the Respondent? I think not”

More importantly, the Supreme Court set the record straight by also holding that the usual remedy for any shortfall in filing fees, is an order by the Court that the appropriate fees should be paid, and that it certainly has nothing to do with the jurisdiction of the Court.

What can I say or add to that? The Supreme Court has sealed the case in favour of the Appellant beyond any arguments, and I can only say that the Tribunal seriously erred when it held –

“- – Just as the Plaintiff in normal civil proceedings serves as pointer for the service of originating process on the Defendants, the Petitioner’s counsel has unwavering duty to properly guide the Tribunal’s Registry as to the status of the Petition otherwise the Petitioner should take blame for any consequences of default in payment of filing fees. It will obviously be absurd to assign to the Registry the responsibility of determining the status of a Petition before assessment of fees”

Apparently, it is the other way round and the Tribunal put the shoe on the wrong foot; that last sentence should read – “It will obviously be absurd to assign to the Appellant the responsibility of determining the status of a Petition before assessment of fees”.

In the circumstances, the Tribunal should have acceded to the Appellant’s prayer and sent the Petition back to the Registry for proper assessment and payment of the shortfall in the filing fees. Before I round up and make the appropriate orders, I must comment on the Appellant’s complaint that the word “forgive” used by the Tribunal is out of place in a Judgment. The Tribunal said –

“….This Tribunal holds that the non-compliance complained of in this Application is of substantial irregularity that affects the foundation of the Petitioner’s Petition, and which the Tribunal cannot forgive”.

No doubt, the Tribunal probably meant to use the word “condone” instead of “forgive”, however, we are bound by the Record and the bottom line is that it is the word “forgive” that the Tribunal used. This may seem inconsequential but a Judgment is a serious matter and there are words like “forgive” that are incompatible with it. Words can make or break and be subject to negative connotations, which may prove harmful to the unintended, and they must therefore be carefully chosen particularly when writing Judgments.

Be that as it may, this appeal must be and is hereby allowed. The Ruling of the Tribunal delivered on the 9th of November 2007, is therefore set aside. The Petition is sent back to another Tribunal for trial on the merit.

There will be no order as to costs.

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Other Citations: (2009)LCN/3466(CA)