Mrs. Florence Ikeh V. Donatus Njoke & Ors (1999)
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FABIYI, J.C.A:
This is an appeal against the ruling handed out on 1/2/99 by the Election Petition Tribunal of Ebonyi State. In the local government election which was held nation-wide on 5/12/98, the appellant desired to be Chairman of the Onicha Local Government Council. She contested as the candidate for the All People’s Party (APP). The 1st respondent was the candidate for the People’s Democratic Party (PDP). The 3rd candidate was one Mr. Christopher Ikele who vied under the banner of the Movement for Democracy and Justice (MDJ). At the end of the election, the 1st respondent was returned as the chairman elect.
The petitioner/appellant was not satisfied with the return of the 1st respondent. She decided to challenge same. In paragraph 2 of her petition, the scores of the candidates were stated a s follows:-
“(a) Mrs. Florence Ikeh (APP) – 18,936 votes
(b) Mr. Donatus Njoku (PDP) – 23,631 votes
(c) Mr. Christopher Ikele (MDJ)- votes”
The petitioner, in her paragraph 3(ii) of the petition, contended “that the 1st respondent was not duly elected by a majority of valid votes cast at the election”. The 1st respondent filed two memoranda of appearance as well as his reply. For failing to state the score of the 3rd candidate, a preliminary objection was taken to challenge the competence of the petition. The preliminary objection was sustained by the trial tribunal which struck out the petition on 1/2/99. The stance taken by the tribunal has led to this appeal.
The notice of appeal dated 8/2/99 was filed on the same date. The notice was accompanied by seven grounds of appeal. On 25/2/99, the appellant was granted leave to file her brief of argument dated 19/2/99 out of time. Three issues were formulated for determination. They read as follows:-
“01 Whether the provision of paragraph 5(1) of schedule 5 to Decree No. 36 of 1998 is mandatory and incapable of being waived.
02 Does the non disclosure of the scores of a candidate in an election in contravention to paragraph 5(1) of schedule 5 to the Decree divest the Election Tribunal of jurisdiction to hear and determine election petition on its merits?
03 In the alternative, whether, having regard to the form of the petition and the argument of the petitioner’s counsel before the Election Tribunal, the tribunal was correct in its finding that the votes scored by the 3rd candidate was not disclosed.”
The 1st respondent’s brief, dated 1/3/99, was filed on the same date. Three issues which are fairly similar in content were formulated for determination by the 1st respondent. They read as follows:-
“01. Whether an election petition which fails to disclose the scores of the candidates at an election, and which said petition at the material time is incapable of amendment is competent and proper before the Election Tribunal.
- Whether the petitioner as shown on page 1 of the records discharged or stated the scores obtained by the 3rd candidate at the above election.
- Whether the 1st respondent could waive, or could be deemed to have waived the issue of non-compliance of the petition with the provision of paragraph 5(1) of schedule 5 of Decree No 36 of 1998 on account of his filing a memorandum of appearance as well as a reply to the petition”.
K.B. Okpaleke Esq., learned counsel for the appellant, made alluring submissions in an alternative fashion. He submitted that the provision of paragraph 5(1) of Schedule 5 to Decree No 36 of 1998 is not mandatory but merely directive.
Non-disclosure of the votes scored by one candidate is at worst, a curable irregularity. Vide paragraph 15(2) of the schedule, an amendment. If made within time can be used to cure any defect relating to paragraph 5(1). He relied on the case of Ezeobi v. Nzeko (1989) 1 NWLR (part 98) 478 at page 510.
Learned counsel contended that the provision of paragraph 5(1) could be waived and that preliminary objection was not taken timeously since the 1st respondent filed two memoranda of appearance as well as reply. He referred to Odu’a Investment Company Ltd v. Talabi (1997) 10 NWLR (Pt.523) 1. He urged that issue 1 be resolved in favour of the appellant.
On issue 2, learned counsel submitted that failure of a petitioner to disclose the scores of one of the candidates at an election is a curable irregularity that cannot render a petition void. Compliance can be achieved if it can be done within time. He opined that the defect in the petition was cured by the 1st respondent who in paragraph 3 of the reply stated the 3rd candidate’s score as 806.
On the 3rd issue formulated by the appellant, learned counsel argued in the alternative that the petition complied fully with the provision of paragraph 5(1) of Schedule 5. He pointedly maintained that (-) against the name of the 3rd candidate showed that he scored no votes and that the tribunal was wrong when it held that the vote of the 3rd candidate was not disclosed. He finally urged that the appeal be allowed.
M. Erhenede Esq, learned counsel for the 1st respondent, made very forceful arguments in reply to all the points of law raised by the appellant. On issue 1, he submitted that failure to disclose the scores of the candidates at an election makes the petition defective unless it could be amended in line with the provision of paragraph 5(1) of schedule 5. Once a defective petition cannot be amended, it has to be struck out. He referred to Ezeobi’s case at page 487. Learned counsel submitted that the provision of paragraph 5(1) is in mandatory term once defect pinpointed cannot be amended. As at the time objection was raised on 22/1/99, petition filed on 18/12/98 could no longer be amended within time. He referred to Opia v. Ibru (1992) 3 NWLR (part 231) page 658. Learned counsel observed that one of the grounds of the petition was that the 1st respondent did not score requisite votes cast at the election. As such, the petitioner had additional burden to disclose scores of all candidates at the election. He cited in aid of this submission the case of Kawuri v. Dalori (1998) 7 NWLR (part 556) 149 at page 151.
On issue No.2, learned counsel contended that the petitioner did not state the scores of the 3rd candidate and such is manifest on page 1 of the records of appeal. He maintained that the hyphen (-) put in front of the name of the 3rd candidate viz: Mr. Christopher Ikele (MDJ) – cannot be said to mean zero or naught. He referred to page 701 of the Chambers English Dictionary, 7th Edition. He submitted that the finding of the tribunal that the score of the 3rd candidate was not stated is not perverse. It should not be interfered with vide Magaji v. Samalia (1998) 7 NWLR (Pt.557) 300, Ige v. Akinvemi (1998) 7 NWLR (Pt. 557) 281 at page 283.
On issue No.3, learned counsel submitted that the provisions of paragraph 5(1) of Schedule 5 to Decree No. 36 of 1998 cannot be waived by the parties to an election petition. The trial tribunal could have raised the defect suo motu. Parties cannot, by failure to object, extend or abridge the provision of relevant enactment. He relied on Ibru’s case at page 658: 667; Alashe v. Olori-Ilu (1964) 1 All N.L.R. 390 at page 397.
Learned counsel submitted further that failure to state scores of candidates goes to competence of the petition. He referred to the decision in Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Learned counsel finally observed that respondent’s reply should not be taken into consideration in determining competence of the petition leading to assumption of jurisdiction. He referred to Multi-Purpose Ventures Ltd v. A.-G. Rivers State (1997) 9 NWLR (Pt. 522) 642 at 647, A.-G. Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645. The learned opined that the 1st respondent did not and could not have waived even if he so wished or desired, the issue of non-compliance with the provision of paragraph 5(1) of Schedule 5 to Decree No 36 of 1998. He urged that the appeal be dismissed.
In considering this appeal, I shall make do with the issues formulated by the 1st respondent.
In giving issue No 1 a careful consideration, it is instructive to quote paragraph 5(1)(c) of Schedule 5 to Decree No 36 of 1998. It reads as follows:-
“5(1) An election petition under this Decree shall –
(a) …..
(b) …..
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and ….'(Italics mine).
Paragraph 5(6) of Schedule 5 goes further to state that an election petition which does not conform with sub-paragraph (1) is defective and may be struck out by the Election Tribunal. Paragraph 15(2) forbids amendment of petition after expiry of the time limited by section 82 of the Decree No 36 of 1998. The relevant section of the Decree provides as follows:.
“82 An election petition under this Decree shall be presented within 14 days from the date on which the result of the election is declared.””
It must be noted here also that paragraph 50(4) of Schedule 5 which is relevant provides as follows:-
’50(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Election Tribunal”. (italicis by me).
By the combined effect of paragraphs 5(1), (6) 15(2) of Schedule 5 to the Decree, failure to state the scores of a candidate in an election petition is a material defect. Such can only be cured if it is possible at the time the objection is raised to remedy the defect by way of amendment.
The time to amend a petition materially is within 14 days from the date of declaration of result. The agreed date when such could have been done is 18/12/98. So, when objection was raised on the defect pin-pointed by the 1st respondent on 22/1/99, the defect could not be cured any longer by way of an amendment. The defect remained intact and glued to the petition. The mandatory requirement of stating the scores of the candidates to the election remained unsatisfied. The petition remained incurably defective. The proper attendant consequence was to strike it out as the trial tribunal rightly did. Issue No. 1 is resolved against the appellant.
The 2nd issue relates to whether the petitioner stated the scores obtained by the 3rd candidate at the seated election. K.B. Okpaleke Esq, learned counsel for the appellant made a fantastic observation that the score of the 3rd candidate was shown in the petition. It is instructive to re-state the scores of the three candidates as manifest on page I of the record. It is said therein that scores purported to have been won by the candidates were as follows:-
“(a) Mrs. Florence Ikeh (APP)- 18,936 votes
(b) Mr. Donatus Njoku (PDP)- 23,631 votes
(c) Mr. Christopher Ikele (MDJ)-”
How the hyphen (-) after (MDJ) above can be taken to mean no vote is beyond my imagination. The same hyphen (-) appears after (APP) and followed by appellant’s score of 18,936 votes. Also, there is hyphen (-) after (PDP) followed by 1st respondent’s score of 23,631 votes. It is only the appellant’s counsel who can explain out his bare-faced assertion. He must realise the grammatical meaning and function of a hyphen as contained on page 701 of the Chambers English Dictionary 7th Edition. By the definition contained therein, a hyphen means a short stroke (-), and it is used in joining two syllables or words. It cannot be held or said to mean zero or naught as represented by the figure (0). I should state it clearly and quickly too that (-) should have no place in stating election results.
In short, the finding by the trial tribunal that no score was stated for the 3rd contestant is very pragmatic. It is not perverse. I shall not tamper with same in line with the dictates in the decisions in Mogaji v. Samaila (1998) 7 NWLR (Pt. 557) at page 300; Ige v. Akinyemi (1998) 7 NWLR (Pt. 557) 281 at page 283.
The appellant, by this issue, merely tried to cling to a straw but to no avail. I resolve issue No.2 against the appellant.
There is the issue of waiver canvassed on behalf of the appellant. The provisions of an enactment to do or not to do an act cannot be waived by a party to an election petition. This is more so when the tribunal could raise such a defect on its own motion. The complaint that objection was not taken timeously will not avail the appellant. The competence of the petition was on the balance. In a similar vein, filing of unconditional memoranda of appearance by the 1st respondent cannot bar him from taking objection to an incurably defective petition. It must be stated that the 1st respondent’s reply cannot come into play when considering the defect in the petition. The petition must first of all be properly before the tribunal. It must be competently before the tribunal before it can be seised of it. Refer to Madukolu v. Nkemdilim (1962) All N.L.R. 587: (1962) 2 SCNLR 341. It is only thereafter that the reply can be considered. A paragraph in the reply cannot perfect an incurably defective petition. The last issue is also resolved against the appellant.
I need to point out at this tail end that the appellant cuts the picture of a lone sailor in a leaking life boat on the ocean of fantasy looking for straws to cling upon all over the place. It’s not surprising that she got enmeshed.
I come to the unalloyed conclusion that the appeal lacks merit. It is accordingly hereby dismissed by me as I affirm the ruling of the trial tribunal of 1/2/99. The appellant shall pay N3,000 as costs to the 1st respondent.
Other Citations: (1999)LCN/0498(CA)
