Nwabugwu Nwaogu V. Independent National Electoral Commission & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The Appellant who was the petitioner at the lower Tribunal brought this appeal against the ruling of the Governorship/Legislative Houses Election Tribunal holden at Port Harcourt, River State on 18/10/2007 in petition No.EPT/SA/28/2007

The petition against the Respondents sought for the following reliefs:

“1. A Declaration by the design of the 1st and 2nd Respondents the Petitioner and his agents were prevented from participating in the recording of results of lawful votes cast at the various units and wards into the original result sheets in the April 14, 2007 House of Assembly Elections.

2. A Declaration that the purported declaration of the 3rd Respondent by the 1st and 2nd Respondents as duly elected as the House of assembly candidate in April 14, 2007 is null and void and of no effect.
3. An Order directing the 1st and 2nd Respondents to the (sic) declare Petitioner as duly elected he having scored the highest number of valid and/or lawful votes cast as representing Omuma Constituency in the Rivers State House of Assembly at the April 14, 2007, Election.
4. A perpetual injunction restraining the 3rd Respondent (Emmanuel Okatta) from parading himself as House of Assembly member duly elected in the April 14, 2007, House of Assembly Election for Omuma Constituency.

IN THE ALTERNATIVE

A declaration that there was no valid and/or proper House of Assembly Election conducted in Omuma Constituency and therefore fresh election be conducted for the House of Assembly Candidates in the Omuma Constituency. (See pages 5-6 of the Record of Appeal).”

Facts garnered from the Records of appeal show that the 1st and 2nd Respondents on 27/6/2007 entered a conditional appearance and on 9/7/2007 filed a motion of Notice for an order extending within which the 1st and 2nd Respondents may file and serve their Memorandum of Conditional Appearance. On the 10/7/2007 1st and 2nd Respondents filed a Counter Affidavit to the Appellant/s Motion on Notice filed on 5/7/2001. The 1st and 2nd Respondents also on 11/7/2007 filed their Respondents’ Response to the petition as well as the Deposition of 1st and 2nd Respondents’ witness (RW1) and the list of witnesses.

On 13/7/2007 the 1st and 2nd Respondents filed their pre-hearing Notice. However the 3rd Respondent on 6/8/2007 filed a Notice of preliminary objection challenging the jurisdiction of the Tribunal to hear the petition on the basis of non-compliance with paragraphs 4(1)(c) of the 1st Schedule to the Electoral Act 2006 and 1(1)(c) of the Election Tribunal and Court Practice Direction 2007. The Tribunal dismissed the petition on the grounds that firstly, stating the holding of the election and the winner of the election and then attaching the form EC8E(1) is not a compliance with paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006; secondly, that the petitioner did not comply with the provision 1(1)(c) of the Election Tribunal and Court Practice Direction, 2007, because he did not accompany the petition with all the documents he pleaded; and thirdly, that the 3rd Respondent was not personally served with the petition and therefore the petition was incompetent.

Dissatisfied with the Ruling, the Appellant has filed a Notice of Appeal in this Court on six grounds. In compliance with the Rules of this Court the Appellant filed his brief of argument from which the following 5 issues for determination were presented:

“1. Whether a party must plead document, which is an evidence, specifically to be able to rely on it particularly when it is accompanying the petition as a document to be relied on, and does the accompanying of Form EC8E(1) with the petition and given by a petitioner to the Respondents not sufficiently satisfy the compliance with the provision of paragraph 4(1) c of the First Schedule to the Electoral Act, 2006 (Ground 1)

2. Whether compliance with the provisions of Paragraph 4(1)c of the First Schedule to the Electoral Act, 2006 is so mandatory that the Tribunal is left with no discretion to exercise where there is credible reason for non-compliance strictly with the provision (Ground 2).
3. Whether nullification of the election result is not the main claim of the Petitioner and what is the effect of claim for the nullification of election result on a defective compliance with Paragraph 4(1)c of the First Schedule to the Electoral Act, 2006 (Ground 3).
4. Whether the provision of paragraph 1(1)c of the Election Tribunal and Court Practice Direction, 2007 requires that the petition should be investigated to determine whether all the documents pleaded were accompanying the petition, all the documents listed to be used or attached to the petition were all pleaded (Ground 4).
5. Whether the failure to serve one of the Respondents to a petition with the petition personally makes the petition incompetent (Ground 5).”

On the other hand the 1st and 2nd Respondents submitted 3 issues for determination in their brief as follows:

“3.1 Whether the petitioner/Appellant in filing his petition complied with provisions of paragraph 1(1)(c) of the Election Tribunal and Court Practice Direction, 2007?

3.2. Whether the petitioner/Appellant in filing his petition complied with provisions of paragraph 4(1)(c) of the Schedule to the Electoral Act, 2006?

3.3 Whether the petitioner/Appellant served on the 3rd Respondent originating processes in the petition personally in compliance with the Rules on Service of Court process?”

On his part, the 3rd Respondent in his brief of argument dated 10/1/2008 and deemed validly filed on 29/1/2008 by this Court, also formulated 3 issues similar to the 1st and 2nd Respondents’ as follows:

“1.1. Whether the Petitioner/Appellant’s failure to substantially comply with the mandatory provisions of paragraph Electoral Act 2006 robbed the tribunal and the requisite jurisdiction to hear and determine the petition.

1.2. Whether the Petitioner/Appellant’s failure to substantially comply with the mandatory provisions of paragraph 1(1)(c) of the Election Tribunal and Court Practice Directions robbed the tribunal the requite jurisdiction to hear and determine the petition.

1.3 What is the effect of failure to serve originating process personally on a named Defendant?”

On 11/3/2008 this appeal was heard. Learned counsel for the Appellant, BENJAMIN OBIORA Esq. adopted the appellant’s brief of argument dated and filed on 1/2/2007 and the Reply brief filed on 1/2/2008. He did not expatiate further on the issues canvassed in the said brief’s, but urged us to allow the appeal. On his part TAMLINO GEORGE Esq learned counsel for the 1st and 2nd Respondents adopted their brief and urged us to dismiss the appeal. G. I. GODFREY Esq., having adopted the brief of argument of the 3rd Respondent also urged us to dismiss the appeal.

Considering this appeal, I am of the view that the 3 issues formulated by the 1st, 2nd and 3rd Respondents are apt and would adequately resolve the contention of the parties in this appeal.

The first issue is whether the Appellant’s failure to substantially comply with the mandatory provisions of paragraph 4(1)(c) of the Electoral Act 2006 robbed the tribunal the requisite jurisdiction to hear and determine the petition.

In the judgment of the lower Tribunal the basis for the objection of the 3rd Respondent to the petition was that the Appellant failed to state the scores of the candidates in accordance with the mandatory provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006. In his brief of argument the Appellant submitted that in his paragraph 9 of the petition and the various Radio announcements in the State, he contended that the fact that no scores were recorded in his favour except as shown in Form EC8E(1) attached and served along with the petition. He conceded that the Tribunal properly cited the provision of the law that deals with the effect of non-compliance with the provision of paragraph 4(1)(c) of the First Schedule to the Act, but failed to give a proper interpretation and application. That the power given to the Tribunal is reflected by the operative word “may” used to describe what the Tribunal would do where there is defect in the compliance with said para. 4(1)(c). He relied on the Black’s Law Dictionary meaning of the word “may” and submitted that when used in a statute generally it imports a discretion, but in some cases it is construed as imperative; but conceded that where it appears in a statute, the con in which the word appears must be looked into as this is the controlling factor. He relied on the cases of AROWOLO v. AKAPO (2Q04) ALL FWLR (PT.208) page 807 @ 863E; ENAKHIMION v. EDO TRANSPORT SERVICES (2006) ALL FWLR (PT. 334) page 1882 @ 1990 and OSHINOWO v. OSHINOWO (2005) ALL FWLR (PT.281) page 1698 @ 1720D. It is submitted that within the con of paragraph 4(6) of the 1st Schedule to the Electoral Act 2006, the operative word “may” imports clearly an exercise of discretion by the Tribunal or Court in determining whether the non-compliance with paragraph 4(1)(c) would activate the petition or not Reproducing in extensor paragraphs 6-18 of the Appellant’s counter-affidavit to the preliminary objection (from pages 162 – 164 of the Records of Appeal). Learned counsel submitted that it was the peculiar facts of the situation that brought about non-compliance with the provision of paragraph (1)(c) of the First Schedule to the Electoral Act 2006. He further submitted that the facts stated in the counter-affidavit were not challenged or contradicted and these were available to enable the Tribunal see reason why the Appellant could not strictly comply with the provision of the said paragraph 4(1)(c) and thereby unduly fettered its discretion. Reliance was placed on the case of AWUSE v. ODILI (2005) 16 NWLR (PT.952) 482. It is urged on us to hold that giving the circumstances disclosed in the Appellant’s counter-affidavit aforesaid to the motion for the preliminary objection on why he was unable to strictly comply with the provisions of paragraph 4(1)(c) the lower Tribunal ought to have exercised its discretion to preserve the petition for a trial on the merit.

Learned counsel for the 1st and 2nd Respondents in their brief of argument has contended that the Appellant filed his petition without stating in any of the 12 paragraphs the fact of holding the election, the scores obtained by all the candidates and the person returned as the winner of the Election. That the Appellant admitted in paragraph 2 lines 1-4 on page 7 paragraphs 5 and 8 of his brief of argument that he did not comply strictly with paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006. It is therefore submitted that the effect or the failure of the Appellant to comply with the mandatory provision of paragraph 4(1)(c) deprived the Tribunal jurisdiction to hear the petition. He relied on the cases of JEMIDE v. HARRIMAN (2004) ALL FWLR (PT.233) 1703 @ 1703 @ 1778D. He submitted that the cases of HON. OKOTO FOSTER BRUCE v. EBIKEM FRANK & ORS. (2004) ALL FWLR (PT.209) page 987 and EMEMUO v. DURU (2004) 9 NWLR (PT.877) 987 cited, by the Appellant only support the Respondents submission that the Appellant must comply with the requirements of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006 because the Electoral Act operates a front loading system which, was not in operation in the authorities cited; and secondly, because the pleadings in the petition were not made in compliance with the rules of pleading which requires that the documents to be relied upon must be specifically pleaded. We are urged to answer this issue in the negative.

Learned counsel for the 3rd Respondent on his part canvassing his argument on this issue submitted that the provision of paragraph (1)(c) of the first Schedule to the Electoral Act 2006 has been considered and given judicial interpretation in a long line of cases under the Electoral Act of 2002, which is in pari materia with paragraph a(1)(c) of the First Schedule to the Electoral Act 2006. That the position of the law is that a petition which fails to state all the scores of all the candidates at the election is defective for non-compliance with paragraph 4(1)(c) of the Act. He relied on DICKSON AND AIYOR v. BALAT & ANOR (2004) 1 EPR 243 @ 276; KHALIL v. YAR’ADUA (2004) 1 EPR 746 @ 780; MADIAGA-ERHUEN v. INEC (1999) 12 NWLR (PT. 630) 288 @ 298-299; JEMIDE v. HARIMAN (2004) ALL FWLR (PT.233) page 1765 @ 1779-1780 and ERIOBUNA v. OBIORA (1999) 8 NWLR (PT.616) page 622.

On the issue of whether a party must plead document which is an evidence specifically to be able to rely on it, particularly when it is accompanying the petition, learned counsel submitted that Form EC8E(1) is such a document which must be specifically pleaded if the petitioner ever intended to rely on it. He relied on OGU v. EKWEREMADU (2006) 1 NWLR (PT.961) page 279-E. Paragraph 9 of the petition of the Appellant was referred to by the counsel who submitted that there is nothing in the petition to link it with Form EC8E(1). That there is no presumption in law that any pronouncement made by INEC in the Radio, TV or Newspaper must be in Form EC8E(1), this is moreso when the petitioner is claiming that the announcement he heard on the air was not the correct result. That there is no figure contained in the Appellant’s pleading to tie it with Form EC8E(1), attached to the petition. Learned counsel submitted that when the pleadings in paragraph 9 of the Appellant is compared and contrasted with that in ENEMUO v. DURU (supra) there would be a world of difference. He submitted while the petitioner in ENEMUO’S case, copiously and specifically pleaded Form EC8E(1), the press release containing the announcements, the names and scores of the candidates, none of these material facts was pleaded in the present case. Again he distinguished the case of BRUCE v. ERE (2004) ALL FWLR (Pt. 2009) relied upon by the Appellant and submitted that the petitioner in that case clearly- and specifically pleaded Form EC8E and averred in paragraph 11 of the petition that he will rely on the scores which are contained in Form EC80(1) (sic) and EC8E(1) at the trial.

Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006 provides as follows:

“4(1): An Election petition under this Act 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.”

This provision has been considered and given judicial Interpretation in a long line of cases considered under Electoral Act 2002, which its paragraph 4(1)(c) is in pari materia with that of the Electoral Act 2006. See KHALIL v. YAR’ADUA (2004) ALL FWLR (PT.225) 111; MAGAJI v. BALAT (2004) 8 NWLR (PT. 876) 44g @ a72; ERIOBUNA v. OBIORA (1999) I NWLR (PT.616) page 622; JEMIDE v. HARIMAN (2004) ALL FWLR (PT.233) page 1765 @ 1779 and CHIEF NWAFOR UJAM v. CHIEF NNAMANI & ORS (2006) 2 EPR 155 QD l7l-172. Appellant’s complaint is that the 3rd Respondent who was declared the winner in the election was not duly elected by a majority of lawful votes cast at the election under the Electoral Act 2006. But he failed to plead the scores of the candidates at the election. The petition is therefore fundamentally defective and therefore not competent to proceed to hearing. This is because without pleading the scores of the candidates at the election the very foundation upon which the ground of the petition is predicated namely that the 3rd Respondent was not elected by majority of lawful votes cast at the election would have been completely absent. In this situation the determination of the petition in the absence of scores of the candidates becomes a futile exercise because of the absence of vital pleaded facts upon which evidence would be led to support the relief being sought. See CHIEF NWAFOR UJAM v. CHIEF NNAMANI & ORS (supra).

A party who intends to rely on a document to prove his case must specifically plead it. Pleading must not be vague if it is to qualify as a pleading.

In the instant case, there is nowhere the Appellant in his petition pleaded Form EC8E(1) in the whole petition, not even in paragraph 9 set out hereunder:

“9. That in spite of the oral and written protest made by the petitioner 1st and 2nd Respondents on Radio Rivers FM Stereo 99.1 FM and Radio Nigeria Treasure FM as well as RSTV and NTA, all in PortHarcourt on the 14/4/07 purportedly announced a result returning 3rd Respondent (Emmanuel Okatta PDP) duly elected and as representing Omuma Constituency in Rivers State House of Assembly for the election held on 14/4/07.”

There is nothing in the above pleading to link it with Form EC8E(1). There is no presumption in law that any pronouncement made by INEC in the Radio, TV or Newspaper must be contained in Form EC8E(1). Moreso that the Appellant is claiming that the announcement he heard on the air was not the correct result. Here there is not figure contained in the above pleading to tie it with Form EC8E(1) attached to the petition. In ENEMUO v. DURU (supra) a similar issue was considered. The state of the pleadings therein was considered and it was held that paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2002 was sufficiently complied with, even though in that case paragraph 4(1)(c) was not in issue. A comparison of paragraphs 2, 3, 6(g) and (h) of the petition in that case (which were reproduced by the 3rd Respondent in his brief) with paragraph 9 of the Appellant herein, reproduced above provide very clear difference. While the petitioner in ENEMUO’S case copiously and specifically pleaded Form EC8E(1), the press release containing the announcements, the names and scores of the candidates none of these material facts was pleaded in the instant case. The attachment of INEC receipt and Form EC8E(1) which are not pleaded and cannot be linked to any paragraph of the petition of the Appellant herein, does not satisfy the requirement of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act of 2006. Also in the case of BRUCE v. EKE & ORS (supra) cited by the Appellant in his brief of argument, the petitioner in that case clearly and specifically pleaded Form EC8E(1) and averred paragraph 11 thereof that he will rely on the scores which are contained in Form EC8E(i). It is for this reason that this court held that there was substantial compliance with paragraph 4(1)(c) of the 1st Schedule. Sub-paragraph (6) of paragraph 4 of the 1st Schedule states:

“4.-(6) An election petition which does not conform with sub-paragraph (1) of the paragraph or any provision of that sub-paragraph is defective and may be struck out by the Tribunal or Court.”

The use of the word “may” herein gives the-tribunal discretion whether or not to strike out such defective petition. But the discretion of the court is to be exercise not only judicially but judiciously as well. It is trite law that a party who seeks the discretion of the court in his favour must present sufficient material of fact upon which the court can exercise such discretion.

I am of the humble opinion that the Appellant has not given cogent and compelling facts in his counter-affidavit in the record upon which the tribunal would have exercised its discretion in his favour. See OLUMEGBON v. KAREEM (2002) LRCN page 1157. A careful perusal of these paragraphs of the counter-affidavit will show that the facts therein contained no reason way paragraph 4(1)(c) of the 1st Schedule was not complied with. The Appellant is saying that because he did not obtain Form EC8E) from INEC in time that was the reason why it was not pleaded. The Appellant does not need to see Form EC8E(1) before he can properly plead same in his petition. Appellant did not see or have about 11 other documents which he pleaded in his petition and never attached any of them. The practice is that the Appellant is required to plead Form EC8E(1) and list same as document to be relied upon at the trial and give INEC notice to produce same: See ENEMUO v. DURU (supra) und BRUCE v. ERE (supra).

In his brief the Appellant cited ancl relied on the case of OWURU v. INEC & ORS. (1999) 10 NWLR (Pt.622) page 210; OGBEIDE v. OSULA (2003) 15 NWLR (Pt.843) page 266; OGBEBOR v. DANJUMA (2003) 15 NWLR (Pt.843) page 403 and ENEMUO v. DURU (supra) to the effect that where a petitioner is asking for nullification of election result without claiming the seat of the Respondent, the strict adherence to the provisions of paragraph (1)(c) of the 1st Schedule to the Electoral Act 2006 should be dispersed with. Whilst I do not agree entirely with the Appellant on the principle of law he cited’ however a careful perusal of the reliefs sought by the petitioner in his petition will show remarkable contradiction. In his petition, prayed for 4 main reliefs and one alternative relief. The 3rd relief prays thus:

“An order directing the 1st and 2nd Respondent (sic) to the declare the Petitioner as duly elected he having scored the highest number of valid/or lawful votes cast as representing Omuma Constituency in the Rivers State House of Assembly at the April 14 2007 Election.”

It is argued that relief 3 herein is not the main relief of the Appellant because reliefs 1, 2, and 4 are all geared towards achieving relief 3. Secondly, that if relief 3 is granted, the alternative relief becomes redundant. I agree with the learned counsel for the 3rd Respondent that this is an idle argument. I do not see the need for the alternative relief. It is superfluous and unnecessary. At best it can only qualify as a consequential relief. This is because if the petition succeeds and relief 3 is refused, the consequential order to be made is a fresh election to be conducted, which is similar to the Appellant’s alternative relief. An alternative relief cannot succeed unless the main relief fails. The position of the law has been explained in MICHAEL v. YOUSUO (2004) ALL FWLR (PT.209) page 10378 as thus:

“Where an alternative claim is made in addition to main claim, it is only where the main claim has not been granted that the constitution and the granting of the alternative claim can arise. Both the main claim and the alternative claim cannot at the same time be granted.”

See similar statement of the law by the Supreme Court in AGIDIGBI v. AGIDIGBI (1996) (PT. 454) page 300 @ 313 per Kutigi, JSC (as he then was).

What was in contention in BUHARI v. YUSUF (supra) cited by the Appellant, at the apex Court was whether a candidate who contested and lost an election can be joined as a party in an election petition even when he is not willing to contest the outcome of the election. I do not think either that the ratio decidendi of the case was that paragraph 4(1)(c) of the 1st Schedule should not be complied with. However, the opinion expressed in that case by UWAIFO, JSC at page 508 is that:

“In respect of paragraph 4(1)(c) it is enough to supply the particulars in the body of the petition without joining the said candidates as parties to the petition.”

We have said it again and again that election petition proceedings is largely governed by a law made specially to regulate such proceedings. The jurisdiction of the tribunal or court to deal with election petitions is a very special nature different from that in an ordinary civil case See ONITIRI v. BENSON (1960) SCNLR 314 @ 317. It is plain that the proceedings are special for which special provisions are made under, the constitution. See OYEKAN v. AKINJIDE (1965) NMLR 381 @ 383. The petition proceedings are distinct from ordinary civil proceedings. See OBIH v. MBAKWE (1954) 1 SCNTR 192 @ 211 per Bello CJN (of Blessed memory) and Eso and Aniagolu, JJSC. Therefore, in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary proceedings could result in fatal consequences to the petition. So an election petition is neither seen as a civil proceeding in the ordinary sense nor of course a criminal proceedings. It is regarded as sui generis. See BUHARI v. YUSUF (supra); SIDI-ALI v. PDP (2004) ALL FWLR (Pt.189) and AYUA v. ADASU (1992) 3 NWLR (PT.231) 598.

Agreed that the courts are no longer swayed by mere technicality but striving to always do substantial justice, however-, it is not every fundamental breach of the Electoral Act that is to be regarded as a matter of mere technicality that the court must indulge the petitioner.

The rules of court are to be obeyed and no court of law can abandon or waive it. The need for the court to comply with the procedure laid down by the law and constitution is quite instructively captured by the dicta of ANIAGOLU, JSC in A. T. BAKARE v P. S. APENA (1986) 6 SC @ 460 @ pages 467-468 when he said:

“A judge will not adopt a method of adjudication alien to procedural rules of justice, upon a plea that he is actuated by the noblest and an impassionate zeal for justice, which propels him into bizarre methods of arriving at the justice, holding as it were, as a justifying Machiavellian principle, that the end justifies the means. The court as the last resort will indeed do justice by procedure laid down by the law and the Constitution. The moment a court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular court to become a Kangaroo court.”

As I have therefore observed above the argument of the Appellant in his brief that the alternative relief was his main claim in the petition cannot hold. The alternative claim only comes for consideration if the main prayer fails. I hold that the Appellant’s main claim as contained in prayer 3 of the relief requires strict compliance with paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006. Also my calm study of the cases of EGOLUM v. OBASANJO (1999)7 NWLR (PT.611) and BUHARI v. YUSUF (supra) relied upon by the Appellant are not the authorities on the interpretation of paragraph 4(1)(c) of the said schedule, as such was not in contention in those cases. After the two cases, there have been a number of decisions of the apex court and this court as exemplified in the above cases upholding the position of the law that full compliance with paragraph 4(1)(c) of the Electoral Act is mandatory.

For the above reasons I must hold that failure of the Appellant to comply with the mandatory provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006 has robbed the lower Tribunal the requisite jurisdiction to hear and determine the petition and thus was properly dismissed.

The first issue raised by the 1st and 2nd Respondents is identical or similar to the 2nd issue of the 3rd Respondent and the 4th issue as formulated by the Appellant. It is all about the vexed issue as to whether the Appellant’s failure to substantially comply with the mandatory provisions of paragraphs 1(1)(c) of the Election Tribunal and Court Practice Direction 2007 robbed the tribunal the requisite jurisdiction to hear and determine the petition.

Learned counsel for the 1st and 2nd Respondents and indeed the 3rd Respondent have submitted that the wordings of paragraph 1(1)(c) of the said Practice Direction is simple, plain, and ordinary and unambiguous and it should be given its natural and ordinary meaning. It is accordingly submitted that by the rules of pleadings, a document is not qualified to be relied upon or admitted in evidence unless it is sufficiently pleaded. That it follows that whether the documents are to be attached or listed they must first of all be pleaded in the petition, otherwise, it will remain useless piece of paper. Reliance was placed on the case of OGU v. EKWEUEMADU (2006) 2 NWLR (PT.961) 279. The learned counsel for the 3rd Respondent has submitted that the use of the word “shall” in paragraphs 1(1)(c) and (2) of the Practice Direction 2007 should be construed to command a compulsion and not subject to any discretion. He relied on the cases of BAMAIYI v. A-G FEDERATION (2001) 12 NWLR (PT.727) page 468 @ 480 and O.A.U. ILE-IFE v. R. A. OLAYIDE & SONS LTD (2001) 7 NWLR (PT.712) Page 465 @ 473.

The contention of the learned counsel for the Appellant is that the paragraph only requires that the copies of the documents or the list of the documents be attached to the petition at the time of filing it. He strongly submitted that he did not only submit the copies but also attached the list of the documents. That there is no where in the Practice Direction where it is provided that the petition must be accompanied by all the documents pleaded in the petition. It is finally submitted that the Tribunal was in error when it went into investigation of the petition to discover which documents were pleaded but not listed or accompanying the petition. That it is the discretion of the Appellant to determine which document he hear pleaded and he would chose to rely on at the trial.

Paragraph 1(1)(c) of the Electoral Tribunal and Court Practice Direction 2007 provides thus:

“All petition to be presented before the Tribunal or court shall be accompanied by:

(a) ……………………………………………………………….

(b) ……………………………………………………………….

(c) copies or list of every document to be relied on at the hearing of the petition.

Paragraph I (2) provides:

“A petition which fails to comply with sub-paragraph (1) of paragraph shall not be accepted for filing by the Secretary.”

The wording of paragraph (1)(1)(c) of the practice Direction 2007 is clear, plain, simple, ordinary and not ambiguous. What is the main object of statutory interpretation, if I may ask. To my mind is to discover the intention of the law maker; and this is deducible from the language used. Once the language used (as in the instant case) is clear and unambiguous, the court must give an ordinary or literal interpretation to it. The judge cannot ascribe meaning to a statute to what he thinks is just and expedient. The literal construction must be strictly followed unless that would lead to absurdity and inconsistency with the provisions of the statute as a whole.

I would therefore look at this sub-paragraphs in two limbs. The first limb is that for a petition to be qualified to be accepted at the registry of the lower tribunal, it must be accompanied by all (and not some) or every document to be relied upon at the hearing of the petition. The second limb, is that the petition must be accompanied by the list of all (not some) or every document to be relied upon at the hearing of the petition.

Generally, when the word “shall” is used in a statute, particularly in election matters, it connotes mandatory and not permissive direction. It is mandatory and the tribunal has no option but to demand compliance. See BAMAYI v. A-G. FEDERATION (supra); O.A.A. ILE-IFE v. R.A. OLIYIDE & SONS LTD (supra); HARUNA ABUBAKAR v. INEC (2004) 1 NWLR (PT.854) 1 @ 240; MOHAMMED YUSUF v. OBASANJO (2005) 18 NWLR (PT.954) 96 @ 220; CHIEF MOMODU v. A.G. MOMOH (1991) 1 NWLR (PT.169) 608 @ 618; TITILAYO AMOBI v. JIMOH SHOTIMEHIN (1993) 3 NWLR (Pt.282) 461@ 473.

Therefore paragraph, 1(2) of the Practice Direction 2007, makes the compliance with paragraph 1(1)(c) a condition precedent to filing a competent election petition. By the rules of pleadings, a document is not qualified to be relied upon or admitted in evidence unless it is sufficiently pleaded. I am of the view, therefore that whether the documents are to be attached or listed, they must first of all be pleaded in the petition, otherwise it will remain a useless piece of paper. See OGA v. EKWEREMADU (supra).

Having stated the principle of the law regarding and the consequences of non-compliance with paragraph 1(1)(c) I shall now briefly consider the content of the petition of the Appellant he filed on 14/5/2007 found on pages 1-33 of the Record. The objection of the Respondents can be observed from the content of the said petition, vide the paragraphs of the petition vis-a-vis the document the appellant either pleaded but not attached or attached but not pleaded or listed but not pleaded. In paragraph 4.2-10 of the 3rd Respondent’s brief of argument, they have tabulated a total of 11 documents pleaded and their paragraphs (from paragraphs 3-12(r,) of the petition found on pages 1-4 of the Record). The lower Tribunal on page 216 of the Record alluded to these documents and examined them as documents pleaded and listed them as copies attached and those that were neither listed nor attached as follows:

“1. The list of officers polling clerks presiding officers and supervisors was pleaded in paragraph 4.

2. A protest letter complaining of the situation to the Resident Electoral Commissioner in the state dated 14/4/2007 was pleaded in paragraph 8.
3. Letter of dismissal of the 3rd respondent from the services of the Rivers State Post Primary Schools Board was pleaded in paragraph 11(a).
4. The result declared and represented by agents and poll clerks of Democratic Peoples Party was pleaded and to be relied upon at trial in paragraph 12(4).
5. Letter of the Democratic Peoples Party Chairman at the Local Government. Mr. Eze Nwogu, to the Resident Electoral Commissioner on 14/4/07 was pleaded and to be relied upon at the trial.”

What is deducible from the tabulation made in their brief and from the finding of the tribunal is that out of 11 documents pleaded, not even one attached to the petition and that out of the 11 documents pleaded only three were listed leaving a total of eight documents pleaded but neither attached nor listed. Two documents attached to the petition were not pleaded. This obvious flaw led to the finding of the lower Tribunal on page 218 of the Record thus:

“We hold further that the papers filed on 16th May, 2007 are of no relevance since they did not accompany the petition on 14/05/2007 when same was filed and there was no application made to the tribunal to file same out of time. It is however to be recalled that learned counsel for the petitioner/respondent admitted in his submission that the papers do not mean anything to them, hence they did not bring the relevant allegation to formalize (sic) them. The tribunal therefore refuses to take cognizance of the papers.” I cannot agree more. There has never been substantial.

Compliance with paragraph 1(1)(c) of the Practice Direction 2007. The phrase used in the provision is “every document to be relied on” and not some of the documents to be relied on. The petitioner is expected to attach each and every document pleaded in the petition or at least, list them out. There is no half-way-house compliance. I am inclined to agree with the learned counsel for the 3rd Respondent that the Appellant realized or discovered the fundamental flaw and the consequences of his infraction when he hurriedly packaged some of the documents with a letter to the Tribunal Secretary on 16/5/2007 (on page 21 of the record) instead of filing a motion to regularize his position. I have said before that full compliance with the said paragraph 1(1)(c) is a precondition to filing a competent election petition. Consequently failure to comply with the provision would rob the tribunal the jurisdiction to adjudicate over the matter, and if it does this will vitiate the entire proceedings. See MADUKOLU v. NKEMDILIM (1962) ALL NLR 589 @ 589; EBITEH v. OBIKI (1992) 1 NWLR (PT.243) page 599 @ 602.

I wish to reiterate even for the sake of emphasis that the election petition proceedings is sui generis. It is imperative that the procedure laid down in the Electoral Act and in the manual for election must be strictly complied with. See BUHARI v. YUSUF (supra). This is so because an election petition is neither seen as a civil proceeding in the ordinary sense nor a criminal proceeding.

That is why it is clear from most of the provisions dealing with the procedural rules provide for speedy disposition of the petition and therefore all the documents needed to achieve this objective must be pleaded and attached and/or listed. In dealing with this point in his issue No. 4 the Appellant’s counsel argued strenuously that the lower tribunal embarked on a voyage of discovery to fish out documents pleaded but not attached and those not pleaded but attached and documents listed but not pleaded. He cited in support the case of AWUSE v. ODILI (2005) 16 NWLR (PT. 952) 582. I have read it. The authority was quoted out of con. Rather at page 509 para. B-C the opinion of the court was that the court has the duty to evaluate every documentary evidence tendered before it. This exercise will involve the court critically reviewing as well as estimating the evidence placed before it. There was nothing wrong in the lower tribunal examining the processes before it to confirm whether or not the objection of the 3rd Respondent on the Appellant’s non compliance with paragraph 1(1)(c) of the practice Direction 2007 is justified. The tribunal can rightly do this under section 74(1)(m) of the Evidence Act 1990. See the Supreme Court authorities of EJUETAMI v. OLAIYA (2002) FWLR (PT.88) 955 @ 981 DG and SODIMU v. N.P.A. (1975) ANLR 151 @ 156.

The allegation against the lower tribunal is uncalled for and baseless, when considered against the background of the fact that the 3rd Respondent was challenging the jurisdiction of the tribunal to hear and determine the petition. Jurisdiction, as a threshold issue is so fundamental that it can be raised even by the court suo moto at any time, even at the apex court for the first time.

Therefore, it was the duty of the lower Tribunal to carefully scrutinize the Appellant’s petition to confirm his compliance with the provision of paragraph 1(1)(c) of the Practice Direction 2001 since by paragraph 1(2) of the same there is of duty on the Tribunal Secretary not to accept any defective petition for filing. Where the Tribunal Secretary has accepted such defective petition (as in the instant case) the tribunal has a duty to suo motu and/or upon application by any of the parties affected, to strike out the petition, just as it did upon the 3rd Respondent’s application.

It is for the foregoing reasons I shall resolve the issue in favour of the 3rd respondents.

Appellant’s issue No. 5 is replicated as issue No. 3 by both 1st to 2nd Respondents and 3rd Respondent in their respective briefs of argument. It is whether the failure to serve the 3rd Respondent with the Appellant’s petition personally makes the petition incompetent.

The complaint of the 3rd Respondent on the issue of service of the petition as borne out in the preliminary objection (see pages 133 – 134 of the Records) is that he was not served personally with the petition but that he was served through the Clerk of the Rivers State House of Assembly. What he is saying is that he was served with the Appellant’s petition but it was not served in the manner prescribed by the law. Learned counsel for the Appellant has conceded that paragraph B of the First Schedule to the Electoral Act 2007 provides for personal service of the petition on the Respondents. He however submitted that while it is desirable that this rule of court should be obeyed, but where there is a failure to comply strictly with the “provision of this rule the proceedings under the election petition shall not be vitiated by virtue of paragraph 8(3) of the First Schedule to the Electoral Act. It is further submitted that there was evidence that the 3rd Respondent did not miss out in all the proceedings in the matter and that the objection to personal service was brought more than two months after participating in the proceedings and taking some fresh steps.

Paragraph 8(1) of the Schedule to the Electoral Act 2006 provides for personal service of the petition and any originating processes on the Respondent. The schedule reads thus:

“subject to sub-paragraphs (2) and (3) of this paragraph, service on the Respondents:

(a) of the documents mentioned in sub-paragraph (1)(c) of paragraph 7 of this Schedule; and

(b) of any other documents required to be served on them before entering appearance shall be personal.

Sub-paragraph 8(2) of the Schedule provides for a substituted service where a personal service cannot be effected.

No doubt paragraph 8(l) above provides for personal service of the petition to the Respondent. However, where there is a failure to comply with the provision of this rule paragraph 8(3) of the First Schedule provides that answer. It provides thus:

“The proceedings under the election petition shall not be vitiated notwithstanding the fact that:

(a) The Respondent or any of them may not have been served personally.”

From the aforementioned provision it is clear that failure to effect personal service on the respondent cannot vitiate proceedings. It is understandable why the requirement of personal service has been whittled down. Without such provision a successful candidate who had been served but waived such service and participated in the proceedings and taken some fresh steps can still argue that there was no personal service of the petition on him just to abort hearing of the petition. It is advisable that each case must be considered on its own merit and circumstances. A petitioner cannot eat his cake and yet have it back.

There was evidence that the 3rd Respondent did not miss out in all the proceedings in the matter. He filed objection to being served personally more than two months after fully participating in the proceedings and taking some fresh steps from which he benefited. Where personal service is required and this is not done this only makes the service irregular and liable to be set aside; it does not affect the competency of the petition itself. It does not also affect any proceedings taken with the participation of the party complaining.

Furthermore it was only the 3rd Respondent that complained of non-personal service on him, the other Respondents did not. They were properly served; but the lower Tribunal dismissed the petition against the parties who had no complaint on the mode of service of the petition. In granting the preliminary objection, the lower Tribunal had used technicality which the courts loath to apply, particularly in the circumstances of this case. However, the resolution of this issue in favour of the Appellant does not, in any way affect the merit of this appeal, having held above that the lower tribunal was right in dismissing the appellant’s petition for non-compliance with paragraph 4(1)(c) and the First Schedule to the Election Act 2006 and paragraph 1(1)(c) of the Federation Tribunal and Court Practice Direction of 2007.

Consequently, I hold that this appeal is lacking in merit. I dismiss it with costs of N30,000.00 in favour of the 3rd Respondent.

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Other Citations: (2008)LCN/2746(CA)