Mr. Johnny Lar Salbie & Anor V. Independent National Electoral Commission & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

Before the Governorship and Legislative Houses Election Tribunal sitting at Port Harcourt (hereinafter called “the trial Tribunal” the Appellants were the petitioners. The Respondents herein were the Respondents in the said petition. The 1st petitioner/Appellant contested on the platform of the 2nd Petitioner /Appellant with the 4th Respondent for a seat in the Rivers State House of Assembly representing Gokana Local Government Area of Rivers State, as a constituency. The election held on 14th April, 2007 was conducted by the 1st-3rd Respondents. The 4th Respondent, after the said election, was returned as the winner of the election. Dissatisfied the Petitioners/Appellants filed their petition challenging the return of the 4th Respondent by the 1st – 3rd Respondents. The petition was subsequently served on all the Respondents.

The 4th Respondent, after service of the processes on him entered conditional appearance through his Counsel, J. T. Kpakol, Esq., on 27th June, 2007. The said Counsel on the same 27th June, 2007 filed “Notice of Preliminary Objection”. The 4th Respondent has not filed his reply till date.

The preliminary objection filed on 27th June, 2007 was heard on 3rd August, 2007. The ruling in the objection was reserved to 15th August, 2007. The 1st-3rd Respondents did not file any Notice of preliminary objection. As at 15th August, 2007 the motion of the 1st – 3rd Respondents dated 13th August, 2007 but filed on 14th August, 2007 had not yet been heard by the Tribunal. That motion inter alia, prays for an order extending time within which 1st – 3rd Respondents may file and serve both the memorandum of appearance and the reply of the 3rd Respondents. As at the time the reserved ruling on the preliminary objection was delivered on 15th August, 2007 none of the Respondents in the Petition had filed any reply to the Petition. That is by the way.

The preliminary objection was predicated on the following grounds:-

1. The Petitioners did not sign the Petition.
2. The Petitioners did not comply with section 4(3) (b) of the 1st Schedule to the Electoral Act, 2006 by signing the Petition.
3. Section 4(3)(b) of the 1st Schedule of the Electoral Act, 2006 which required “sic” petitioner(s) to sign the Petition is mandatory.
4. The Petitioners did not comply with section 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006 in that the scores of each candidate who participated in the election was tot stated.
5. Section 4(1) (c) of the 1st Schedule to the Electoral Act, 2006 which require (sic) the scores of the candidates to be stated is mandatory.
6. This Tribunal lacks jurisdiction to entertain this Petition in view of the non-compliance with section 4 (3) (b) of the Electoral Act, 2006 (sic).

At the hearing of the preliminary objection J. T. Kpakol, Esq, of Counsel to 4th Respondent formulated two issues to be determined by the Tribunal. That is:-

1. The effect of the petition not signing the election petition.
2. The: effect of the petitioner not stating the names of all the candidates who participated and their scores in the election.

On the first issue formulated by the 4th Respondent, who has purportedly cross Appealed, the Tribunal found at pp. 164-165 of the record of appeal that:-

The petitioners did not sign the petition; it was their Solicitor that signed.

And that unfortunately, he signed not as their Solicitor but as the petition, because he has written his names JOSEPH ELLEH (PETITIONER) and wrote in barrack (sic) to show that he is the Petitioner or one of the Petitioners.

If he had written that he is the Petitioner’s Counsel and wrote (sic) for example JOSEPH ELLEH PP. JOSEPH ELLEH & CO. Counsel to the Petitioners his signature could suffice to stand as he signed as the Solicitor of the Petitioners.

Having seen the signature of Mr. JOHNNY LAR SALBIE as contained in his written statement on Oath where he signed as the deponent (sic). And where he signed the petition letter he sent to the INEC protesting the malpractice in the election we have seen that he signed those documents but he was not the one who signed the petition, so Joseph Elleh can not be Johnny Lar Salbie is distinct and different person from Joseph Elleh.

The Tribunal found further at page 167 of the record of appeal that:-

It was the counsel or solicitor of the petitioners that signed though not as the counsel to the petitioners but as the petitioner himself, which throughout this case he is not and he can not be.

Be that as it may, we hold that there was no substantial conformity with paragraph 4 (3) (b) and that renders the petition that can not be amended, void.

On the issue of the petitioners allegedly not stating the candidates who participated in the election and their scores names of all the candidates who participated in the election and their scores the trial Tribunal reproduced a portion of the petition found at paragraph 2 of page 1 of the record of appeal, and held that:-

“Consequent upon the above we are of the view that the petitioner has stated the names of the petitioners and the 4th Respondent that was returned as the winner and has also stated the scores of the Petitioner and the 4th Respondent as 1149 and 83,650 respectively, we hold that there was compliance of the provision of paragraph 4 (1) (c) notwithstanding that the names of all other candidates and their scores were not listed, we therefore resolve the issue of noncompliance with paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006, in favour of the petitioner. See AWUSE v. ODILI (supra).”

The Petitioners/Appellants have only one ground of appeal. That is that:-

“The learned trial Judges of the Governorship Legislative Houses Election Tribunal sitting in Port Harcourt, Rivers State erred in law when they held: “In the case at hand none of the petitioners. Johnny Lar Salbie or the Democratic Peoples Parfy or its representative signed to the petition. It was the Counsel or Solicitor of the Petitioner that signed – be that as it may, we hold that there was no conformity with paragraph 4 (3) and that renders the petition that can not be amended, void, we therefore hold that, that robs this Tribunal the jurisdiction to entertain the petition due to its defect, we therefore strike it out.”

PARTICULARS OF ERROR

(a) A petition is under paragraph 4 (3) (b) of the 1st Schedule to the Electoral Act, 2006 required to be signed by the Petitioner or Petitioners or by the Solicitor, if any, named at the foot of the election petition.

(b) By section 74 (1)(j) of the evidence Act, a court including a tribunal as in the instant case is obliged to take judicial notice of the names of all Legal Practitioners authorised by law to appear or to act before it.

(c) Mr. Joseph Elleh, who signed the Petitioners’ Petition, is counsel or solicitor to the Petitioners and a Legal Practitioner and the Tribunal so found as a fact in the light of the processes and the proceedings before it in the said petition.

(d) Having so found, the Tribunal ought not to have struck out the petition on the ground that it was not signed by the Petitioner as required by paragraph 4 (3) (b) of the 1st Schedule to the Electoral Act, 2006.

On the other hand, the cross-appeal of the 4th Respondent dated and filed on 18th September, 2007, 34 days after the decision complained about, has two grounds of appeal. Complaining that:-

1. The learned Justices of the Election Petition Tribunal erred in law when they held that –

“Consequent upon the above we are of the view that the Petitioner has stated the names of the Petitioners and the 4th Respondent that was returned as the winner and has also stated the scores of the Petitioner and the 4th Respondent as 1149 and 83,850 respectively, we hold that there was compliance of the provision of paragraph 4 (1) (c) notwithstanding that the names of all other candidates and their scores are not listed.”

PARTICULARS OF ERROR

1. Every election petition must in compliance with Paragraph 4(1) (c) of the 1st Schedule of Electoral Act, 2006 state interalia, the scores of the candidates and the names of all the candidates trial participated in the election.
2. The Petitioner did not comply with the provisions of paragraph (1) (c) of the Electoral Act, 2006 as it failed to name all the candidates that participated in the election and the scores ofeach candidate.
3. None compliance with paragraph 4 (i)(c) of the 1st Schedule of the Electoral Act, 2006 robbed the Tribunal of its jurisdiction.

(2) The Justices of the Tribunal erred in law when they relied on the case of AWUSE vs. ODILI (2004) 8 NWLR (Pt. 876) 481-and came to a conclusion that the Petitioners complied with paragraph a (1) (c) of the 1st Schedule to the Electoral Act, 2006.

PARTICULARS OF ERROR

1. The Petitioners stated only their scores and that of the 4th Respondent.
2. The names and scores of other candidates who participated in the election were not stated.
3. The learned Justices of the Tribunal ought not to have relied on the case of AWUSE v. ODILI, when their (sic) was a later decision of MAGAJI v. BALAT (2004) 8 NWLR (Pt.876) 449
4. The Court of Appeal in the case of FBN LADGROUP LTD (2004) 14 NWLR (Pt. 873) has stated the position the lower Court should take where there are conflicting decisions of a higher Court on an issue.

Mr. Kpakol for the 4th Respondent/Cross Appellant had raised, in the brief of argument on behalf of the 4th Respondent/Cross Appellant, an issue by way of preliminary objection to the Petitioners/Appellants’ appeal on whether an appeal from the decision of the election Tribunal, as in the instant case, striking out the petition would lie as of right within the provisions of section 246(1) of the 1999 Constitution, since the decision is not one on the merits. In other words, since the decision striking out the petition was not a final, but interlocutory, decision whether appeal lies there from to the Court of Appeal as of right? Counsel to 1st – 3rd Respondents also adopts this issue, on whether the appeal of the Petitioners/Respondents is competent in view of section 246 (1) (b) of the 1999 Constitution since the petition was merely struck out in its entirety and not decided on the merits. Mr. Kpakol for the 4th Respondent/Cross appellant conceded that the decision of the Tribunal striking out the petition on the preliminary objection was a final decision. He added, however, that it was not a decision made in the course of an election petition proceeding and that the Constitution does not confer any right of appeal on the Petitioners/Appellants.

Both counsel for the Respondents placed heavy reliance on OKON v. BOB (2004) 1 NWLR (Pt.854) 378 at 395, OPENE JCA., and AMGBARE v. SYLVA (2007) 18 NWLR (Pt.1065) 1 at paragraph 19 B – G 22 – 23 paragraph H – B.

Mr. Kpakol for the 46 Respondent/Cross Appellant was no doubt influenced, in the formulation of this issue in the preliminary objection by the forthright opinion of Opene, JCA in OKON v. BOB. (supra) at p.395, to wit –

“An appeal will only lie from the election Tribunal to the Court of Appeal if there is any decision by the Election Tribunal whether any person has been validly elected as a member of the National Assembly or the State House of Assembly — as the case may be. Such an appeal will only come within the provisions of section 246 (1) (b) of the 1999 Constitution if there is a determination of the petition on the merits and that any decision in course of the proceedings is not covered by Section 246 (1) (b) of the Constitution. That includes the decision striking out the petition in its entirely and interlocutory decisions.”

“In the Petitioners/Appellants’ reply brief Joseph Elleh, Esq. of Counsel submitted that the decisions of the court of Appeal relied on by the Respondents to the effect that section 246 (1) (b) of 1999 constitution does not confer on an aggrieved party the right to appeal are of right to this court from the decision of the election Tribunal striking out a petition were decisions reached per incuram as the Supreme Court in AWUSE v. ODILI (2003) NWLR (pt.841) (sic): (2003) 18 NWLR (pt.851) 116 had given interpretation as the score of appeals from decisions of election tribunals to this court. I guess counsel is referring to the decision of the Supreme Court in AWUSE v. ODILI (2003) 18 NWLR (pt.851) 116.

I think it is necessary at this juncture to reproduce sections 246 (1) (b) (i) of the Constitution that decision. That is: –

246 (1) An appeal to the Court of shall lie as of right from –

(b) decisions of the Traditional Assembly Election Tribunals and Governorship and Legislative House Election Tribunals on any question as to whether

(i) any person been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.

318.(1) In this constitution, unless it is otherwise express or the con otherwise requires:-

“decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.

My Lords, the decision of the Supreme Court in AWUSE v. ODILI (2003) 18 NWLR (pt.851) 116 interpreting sections 246 (1) (b) (i) and 318 (1) of the 1999 constitution on whether an aggrieved petitioner can appeal as of right to this court from the decision of an election Tribunal striking out his petition in its entirely for incompetence has removed any iota of doubt on the matter. The facts of AWUSE v. ODILI (supra) are not dissimilar. Like in this case, the Governorship Election Tribunal in AWUSE v. ODILI (supra) struck out the Petition on grounds of incompetence. The Supreme court in that case held that the use of the phrase “any question” in Section 246 (1) (b) of the 1999 constitution is deliberate and that an appeal to the court of Appeal is not limited to only appeals or elected to the office of the Governor? For this appeal I hereby add that upon the combined reading of sections 246 (1) (b) (i) and 318 of the 1999 constitution in light of the Supreme Court decision in AWUSE vs. ODILI (supra), these Petitioners/Appellants have the right to appeal to this court, as of right, from the decision of the trial Tribunal striking out their petition for alleged incompetence. This right enures to the petitioners/Appellants to appeal to this court from the decision of the trial Tribunal, irrespective of whether the appeal is final or interlocutory, by virtue of Section 246 (1) (b) of the Constitution. To further demonstrate this I refer to p. 151 E – F of AWUSE vs. ODILI, (supra) where Kutigi, J.S.C. (as he then was) stated:-

Under Section 246 (1) (b) (ii) of the Constitution above are appeal would ordinarily lie to the Court of Appeal in respect of an appeal arising from that decision striking out the applicants petition.

Justice Uwaifo at p.164 of the report adds that:-

The definition of decision in Section 318 of the 1999 Constitution gives a wide implication to any “determination” by the Court. This obviously includes any interlocutory decision. It follows that the Court of Appeal has jurisdiction to entertain, decision of the Election Tribunals set up under Section 246 of the 1999 Constitution.

See also Niki Tobi, JSC at pp. 176-178 of the same report.

This court very recently, in ELDER IKECHUKWU AMADI OBUZOR, JP & ANOR vs. HON. WILSON ASINOBI WILSON ASTNOBI AKE & ORS. (APPEAL NO CA/PH/EPT/431/2007 of 10th April, 2008 -per KEKERE-EKUN, JCA) took the same stance.

This appeal against the decision of the trial Tribunal striking out the petition of the Petitioners/Appellants on 15th August, 2007 is, in my opinion competent and I so hold. The said decision is an appellable decision by virtue of sections 246 (1) (b) and 318 of the 1999 constitution. Moreover, it was a final order/decision which the aggrieved petitioner does not need leave to appeal. See NWEKE v. EBEOGU (1999) 6 NWLR (pt.606) 247 at p.252.

The right of appeal vested in the aggrieved parry by Section 246 (1) of the constitution is a constitutional right. The supreme court so held in ALHAJI ATIKU ABUBAKAR & ORS v. ALHAJI UMARU MUSA YAR’ADUA & ORS (APPEAL No. SC.228/2007 of 25th January, 2008). In exercise of that right the Petitioners could appeal as of right against the decision of an election Tribunal, even in respect of an interlocutory decision denying the petitioners right to serve interrogatories. All the grounds of appeal in the instant appeal, like those in ATIKU ABUBAKAR v. YAR’ADUA (supra), are grounds of law.

Sections 233(2) (e) and 246 (1) (b) of the 1999 Constitution are very much identical. The ATIKU ABUBAKAR v. YAR’ADUA case (supra) was under Section 233 (2) (e) of the Constitution. In that case NIKI TOBI, JSC said:-

Appeal is a constitutional right which can not be taken away from or denied an appellant. No Court of law has the jurisdiction to take away from or deny an appellant his constitutional right.

The right of appeal that inures to the Petitioners/Appellants by dint of Sections 246 (1) (b) and 318 of the constitution can not be denied. Accordingly, I hereby resolve this aspect of the preliminary objection to this appeal of the Petitioners/Appellants against the Respondents, particularly by the 4th Respondent.

The second leg of the preliminary objection of the 4th Respondent is that by virtue of Order 6, Rule 4 of the Court of Appeal Rules, 2007 the Petitioners/Appellants can not be heard on any ground outside the original ground of appeal without leave of this court, and that arguments outside the original ground of appeal are incompetent. Counsel to the petitioners/Appellants conceded that they have only one ground of appeal from which seven (7) issues were formulated. The Petitioners/Appellants’ motion dated and filed on 27th September, 2007 seeking leave to file additional grounds that was struck out on 22nd January, 2008. Ordinarily, by order 6, Rule 4 of the Court of Appeal Rules, 2007 the Appellant shall not, without leave of the Court, urge or be heard on any ground of appeal not mentioned in the notice of appeal. Counsel to the 4th Respondent took objection to issues 3, 4, 5, 6 and 7 formulated by the Petitioners/Appellants and submitted that they do not arise from the only one ground of appeal. It is therefore now necessary to reproduce the seven (7) issues formulated by the Petitions/Appellants in paragraphs 3.1 -3.7 of their brief of argument. They are:-

3.1 Whether the purpose for which paragraph 4 (3) (b) requires an election petition to be signed by either the Petitioner(s) or their Solicitor is not satisfied, where the signature and name of the Solicitor to the Petitioners is clearly endorsed at the foot of the petition as in the present case.

3.2 Whether a petition found by the Tribunal to have been signed by the Counsel/Solicitor for the petitioners, is not in substantial compliance with the provisions of paragraph 4(3) (b) of the 1st Schedule to the Election Act, 2006.

3.3 Whether the objection raised by the 4th, Respondents Counsel regarding the appellation on the Petitioners Counsel’s name is not an objection as to form cured by the provisions of paragraph 49(1) & (4) of the 1st Schedule to the Electoral Act, 2006.

3.4 Whether an objection as to form can defeat the justice of a case where no miscarriage of justice has been occasioned.

3.5. Whether clerical mistake or wrong appellation to a Counsel’s name undemeath the Counsel’s signature denies, robs or deprives the Counsel of the exercise of his right to sign a petition as provided for by paragraph a(3)(b) of the 1st Schedule to the Electoral Act, 2006.

3.6. Whether in law a Counsel authorized by a petitioner(s) and who appears for such petitioner(s) all through the proceedings is not a representative or agent of such petitioner(s) for the purpose of signing the petition.

3.7 Whether the Election Tribunal rightly struck out the petition as being incompetent on the ground that the petition was not signed by the petitioners or its representative, having found as a fact that the Election Petition was signed by the Counsel/Solicitor to the petitioners.

The issues formulated may appear rather in concise and profuse. However, it is not correct as contended by the counsel to Respondent that only issues 3.1 and 3.2 formulated by the petitioners/Appellants’ counsel emanate from the only one ground of appeal. Issue 3.6 does not arise from the one ground of appeal filed by the petitioners/Appellants. The substance of the Ruling of the trial Tribunal and the complaint of the petitioners/Appellants is not on whether the counsel who signed the petition is not an agent or representative of the named Petitioners. It is right, in my opinion, to disregard and discountenance issue No. 3.6 in the briefs of argument of the Petitioners/Appellants, Accordingly, I shall disregard and discountenance only that issue.

I will now proceed to the merits of the appeal. As against the six (6) subsisting issues formulated by the petitioners/Appellants. The 1st – 3rd Respondents formulated one issue. That is: –

“Whether the Tribunal was right in striking out the Appellants’ petition upon finding that the petition was not signed within the meaning of paragraph 4 (3) (b) of the 1st Schedule to the Electoral Act, 2006.

On his part J. T. Kpakol of Counsel to the 4th Respondent also formulated one issue, if really it is an issue. That is:-

“The effect on an election petition where a petitioner does not sign.”

Let me revisit the facts giving rise to the decision appealed, albeit briefly. At the foot of the petition at page 4 of the record of appeal is the signature over the words:-

Joseph Elleh (Petitioner)

Below those words there are words at the left to wit:-

ADDRESS FOR SERVICE:

The petitioners

c/o Their Solicitors

Barrister Joseph Elleh

Weber & Cicero

Suit 107, 1st floor

Delta Hotel Building

169 Aba Road,

Port Harcourt.

The trial Tribunal found that the signature at p.4 of the record of appeal at the foot of the petition was the signature of Barrister Joseph Elleh, the Petitioners, solicitor. Specifically, Tribunal found that:-

“The petitioners did not sign the petition; it was their counsel that signed. He signed not as their Solicitor but as the petitioner because he has written his names JOSEPH ELLEH (PETITIONER) and wrote in barrack (sic-brackets) to show that he is the petitioner or one of the petitioners.

The trial Tribunal knew who signed the petition at the foot. It was Barrister Joseph Elleh. That fact is not disputed or contested by the Respondents. The trial tribunal also found and held that Barrister Joseph Elleh was the petitioners solicitor. The fact is also not disputed. The Tribunal further found that “unfortunately” Barrister Joseph Elleh did not sign as petitioners’ solicitor. The Tribunal seems here to acknowledge, implicitly, that Barrister Joseph Elleh has committed blunders or mistake for not adding in brackets “Petitioners’ Solicitor/Counsel” against his name under his signature. This blunder, the Tribunal further held makes the petition fundamentally or incurably defective as it cannot be amended.

I think the only issue for determination in his appeal is whether the blunder committed by Barrister Joseph Elleh is not only incurably defective; it has misled the Respondents, in preparing their defense adequately to the petition.

At pp. 27 and 28 of the Appellants’ Brief, Counsel to the Petitioners/Appellants posed two questions that go to the kernel of the matter. That is –

iii. If the only anomaly was that the description of the Solicitor to the Petitioners besides his name was not correct, can this be sufficient ground to warrant the Court to strike out the petition, when clearly the address at the foot of the petition shows that the Solicitor’s name is Joseph Elleh and none of the parties to the proceeding, including the Court was deceived as to the correct and true status of Joseph Elleh

iv. Can the discretionary power of the Court which has (sacrificed) substantial justice on the altar of arid technicality be said to be just having regard to the facts of this case and the circumstances.

It is necessary, now to reproduce the provisions of paragraph a (3) (b) of the First Schedule to the Electoral Act, 2006. They are:-

4.(3) The election petition shall further:

(b) be signed by the petitioner or all Petitioners or by the Solicitor, if any named at the election petition.

For the Petitioners/Appellants it was submitted that it suffices if there was substantial compliance with the provisions. Counsel cited AWUSE vs. ODILI (2004) 8 NWLR (pt.576) 481 and submitted that “substantial compliance” means “considerable compliance”

Paragraph 4 of the 1st Schedule to the paragraph (6) thereof sanction provision. There is also Paragraph 49 (1) of the 1st Schedule that gives the Tribunal discretion to treat certain non-compliance as mere blunders. There is also paragraph 14 (1) and (2) (a) of the 1st Schedule to the Electoral Act, 2006 that permits amendment of the petition in certain situations. These provisions are herein below reproduced.

14. (1) Subject to sub paragraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted for the word “the election petition or reply.”

(2) After the time limited by

(1) Section 141 of this Act for presenting election petition no amendment shall be made:

(i) introducing any of the requirements of sub paragraph (1) of paragraph 4 of this Schedule and not contained in the original election petition filed, or

(ii) affecting a substantial alteration of the ground, or the prayer in, the election petition, or

(iii) except anything which may be done under the provisions of sub paragraph (3) of this paragraph, affecting a substantial alteration of or addition, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition.

4 (1) An election petition under this Act shall:-

(a) specify the parties interested in the election petition;

(b) Specify the right of the Petitioner to present the election petition;

(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election;

(d) An election petition, which does not conform with sub paragraph (1) of this paragraph or any provision of that paragraph is defective and may be struck out by the Tribunal or Court

49. (1) Non-compliance with any of 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 proceedings may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit and just.[Emphasis Supplied].

The trial Tribunal in striking out the petition held that the failure of the Counsel or Solicitor to indicate specifically that he was signing the petition as Petitioners’ solicitor was substantially not in “conformity with paragraph 4 (3) (b) and that renders the petition, that can not be amended, void” In view paragraph 14 (2) and 49 (1) of the 1st Schedule to the Act the petition could, without harm or prejudice to the Respondents, be amended by inserting “Petitioners’ Solicitor/Counsel” in the brackets against the name Barrister Joseph Elleh. This error of Counsel, if amended, does not, or will not, affect or occasion substantial alteration of, or addition to the statement of facts in support of the grounds of’ or prayers in the election petition. It will also not deceive the Respondents or occasion any substantial miscarriage of justice to the Respondents. The Respondents knew that the Petitioners’ Counsel was Barrister Joseph Elleh. Page 27, whereat 4th Respondent provided the address for service of his preliminary objection on the Petitioners, shows –

ADDRESS FOR SERVICE

The Petitioners

c/o Barrister Joseph Elleh.

IBRAHIM vs. SHERIFF (2004) 14 NWLR (PT.892) 43 cited by the Petitioners/Appellants’ Counsel is a decision of this Court. At p.67 of the report Akintan JCA (as he then was) stated that –

paragraph @) is specific in restricting the sanction prescribed therein to sub-paragraph 4 (1). — Even in the instances listed in sub paragraph 4(1) of the said Schedule, it is not mandatory that a breach must result in an order striking out the petition.

I agree entirely. Justice Akintan was interpreting paragraph 4 (1), (3) and (b) of the 1st Schedule to Electoral Act, 2002 which are in pari materia in with paragraph 4 (1), (3) and (b) of 1st Schedule to the Electoral Act, 2006.

The trial Tribunal had applied literal or strict construction of paragraph 4 (3)(b) of the 1st schedule to the Electoral Act, 2006 in striking out the petition. I will still call in aid the kind words of Justice Akintan in favour of liberal interpretation at pp.65-66 of IBRAHIM vs. SHERIFF (supra) –

One of the well established principles of interpretation of statues is that there is a presumption against unreasonable and inconvenient result, or presumption against intending what is inconvenient and unreasonable. Another principle is that construction most agreeable must be adopted.With the finding of fact by the trial Tribunal at pp. 164-167 that Barrister Joseph Elleh signed the petition and that he was petitioners’ solicitor or counsel NWANCHO vs. ELEM & ORS (2004) All FWLR 93 at 109, cited by the 4th Respondent’s counsel to the effect that a petition signed by any person outside the persons authorized by the Electoral Act, 2006, had become irrelevant in this appeal.

Counsel to 4th Respondent also relied on AQUSIOSO v. ONYEKWELU (2003) 14 NWLR (pt. 839) 34 to demonstrate that the word “shall”, used in paragraph 4 (3) (b) of 1st Schedule to the Electoral Act, 2006 makes it mandatory, and not discretionary, for the signing of the petition at the foot by either the parties or their Solicitor. The petition was signed. The issue now is who signed it? The Tribunal resolved it. It found that Barrister Joseph Elleh, Petitioners counsel, signed it; but not, mistakenly, as petitioners, counsel because in the post-fix in brackets he did not properly identify himself as Petitioners’ Counsel. Even in AQUSIOSO v. ONYEKWELU (Supra) at pp. 52-53 Ogunbiyi, JCA reiterated the warning of the Supreme court against courts sacrificing Justice on account of mere technicality. The courts are to depict substance and justice on the merit and be wary of sacrificing justice on account of crass technicality.

Relying on ORISU v. UZOEGBU (1999) 6 NWLR (pt. 605) 32 Counsel for the 1st – 3rd Respondents submitted that the discretion of the learned tribunal under paragraph 49 (1) of the 1st Schedule as to what course of action to take in a situation where the is non-compliance with the provisions of the 1st schedule to the Electoral Act, 2006 is enormous and can not be questioned unless it can be shown that such discretion is exercised arbitrarily. It seems to me that Ubaezonu JCA, at p. 43 C-D of the report is saying that an amendment to the form of the petition which does not entail rewriting the petition outside the time prescribed for filing petition is permissible. The petition in that case was struck out because the petition did not contain two, out of three, mandatory signatures and attestation required by paragraph 5(f) of Schedule 6 to Decree No. 3 of 1999.

That is not the case in this appeal.

themEquity follows the law. That is why where strict adherence to rules would inflict outright injustice equity favours the court doing substantial justice. See OLOBA v. AKEREJA (1999) 2 NSCC 120 at p. 136. The court of Justice ensures that substantial Justice, as against technical Justice, is done to the parties. See OGBORU v. IBORI (2006) 17 NWLR (pt.1002) 542 at pp.574, 585-6. The hey days of technicality are now over because the weight of judicial authorities has today shifted from reliance on technicalities to doing substantial justice even handedly to the parties in the case. See EGOLUM v. OBASANJO (1999) 7 NWLR (pt.61 1) 355 at p.413. The error complained of, which the trial Tribunal acceded to and struck out the petition, was a human error or blunder of the petitioners’ counsel. It has not prejudiced the Respondents nor with it occasion any substantial miscarriage of Justice to them. In ATIKU v. YAR’ADUA (supra) Niki Tobi, JSC said-

The basic principle of law is that it is the object of the Court to decide the right of the parties and not to punish them for mistakes they make in the litigation process, particularly when mistakes are really mistakes. It is a known fact that blunders must take place in the litigation process and because blunders are inevitable, it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of law at the expense of hearing the merits of the case. Rules of Court, —, are not intended to be ridiculously applied to a slavish point, particularly if such an application will do injustice in the case.

In EBOH v AKPOTU (1968) 1 All NLR 220, Coker, JSC said:-

It is not every irregularity that can nullify entire proceedings and it may be open to a party claiming by virtue of an irregularity to contend that such irregularity materially affect the merits of the case or engenders a miscarriage of Justice.

Rules of Court are meant to be obeyed. Of course, that is why they are made. They should be no argument about that. But there is an important qualification or caveat and it is that their obedience can not and should not be slavish to the point that, justice in the case is destroyed or thrown over board. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties.

It is not correct, in my view, that the error or mistake of the petitioners’ counsel in not properly identifying himself under his signature can not be amended, as held by the trial tribunal. It can be amended under paragraph 49 (1) of the 1st Schedule without any prejudice or miscarriage of justice to the Respondents. It is a harmless mistake.

This petition, in my view, has substantially complied with paragraph 4(3) (b) of the 1st Schedule to the Electoral Act, 2006. The order striking it out is out of tone with the findings of the trial Tribunal. As M. L. Garba, JCA said in ATTIE SAMUEL WAMINI -EMI vs. DELIGHT IGALI & ORS (unreported No. CA/PH/EPT/343/2007 of 9th April, 2008) –

Once a petition has substantially complied with the requirements of the sub paragraph 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 the merits. To do otherwise in such a situation, would be to unjustly drive away Petitioners from and shut the doors of the statutorily established venues at which they could legally have 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 redress to deny them the rare opportunity to complain in such elections.

They need be liberal in their attitude towards interpretation and if the Electoral Laws, which in the first place provided 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.

There is merit in the appeal of the 1st and 2nd Petitioners/Appellants. I allow the appeal. The 4th Respondent filed no briefs of argument in respect of his purported cross-appeal dated and filed on 18th September, 2007, 34 days after the ruling of trial Tribunal dated 15th August, 2007, instead of 21 days. The cross-appeal has been abandoned. I have no hesitation striking it out. And it is hereby struck out. The decision of the trial Tribunal delivered on 15th August, 2007 wherein the petition of the Petitioner/Appellants was struck out is hereby set aside. The petition of the 1st and 2nd Petitioners/Appellants is hereby ordered to be heard on the merit by the trial Tribunal.

Costs of N30,000.00 are hereby awarded in favour of the Petitioners/Appellants against the 4th Respondent.

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Other Citations: (2008)LCN/2744(CA)