Nze Jeremiah Osigwelem V. Independent National Electoral Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
TIJANI ABDULLAHI, J.C.A.
This is an appeal from the Ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting at Owerri, Imo State delivered on the 20th day of August, 2007 wherein the lower Tribunal held that the Appellant’s petition was incompetent and dismissed same on that ground. The Lower Tribunal in the said Ruling held thus:
“In view of the foregoing, the objection of the Respondents is sustained and the petition being incompetent is hereby dismissed.”
Dissatisfied with the decision stated (supra), the Appellant filed this appeal consisting of four grounds. The grounds shorn of their particulars are as follows:-
GROUND ONE
The Election Tribunal erred in law in striking out the petition.
GROUND TWO
The Election Tribunal erred in law when it held:
‘We pleaded facts spelt out above entirely deal with pre-election issue. In PDP v. HARUNA (supra) at p. 612 para E – F it was held that ‘Nomination is a primary issue which the Petitioner now Appellant should have challenged at an earlier stage and not after he had allowed the election to go on unchallenged and lost.”
GROUND THREE
The Tribunal erred in law in holding that:
‘The Petitioner therefore brings to the fore the issue of scores and votes. It is therefore upon him to plead the scores of all the candidates who contested the election as declared by INEC. Failure of the Petitioner to comply with the mandatory provision of paragraph 4(1)(c) of the Electoral Act 2006 renders the petition incompetent.’
GROUND FOUR
The Election Tribunal erred in law in conducting all its proceedings in Chambers instead of in open Court.”
The case of the Appellant as can be gleaned from the proceedings of the lower Tribunal is that the Appellant contested the April 21st 2007 election for the position of member of the Federal House of Representatives, representing Nkwerre/Isu/Njaba/Nwangele Federal Constituency of Imo State, He challenged the 3rd Respondent who was said to have been substituted and who was also held to have won the election.
The Appellant took out the petition alleging that 3rd Respondent was not a Candidate as she did not infact substitute anybody. The Petitioner before taking out the petition wrote several letters to INEC to supply him with the result of the election but INEC did not respond. As time was running out, he filed an election petition without stating the scores of the candidates on the ground that the 3rd Respondent who was declared the winner of the Election was not validly nominated to contest the election within the time stipulated in the Electoral Act, 2006.
The Respondents filed a Notice of Preliminary Objection as per page 91 of the compiled records contesting that the Appellant did not supply the scores of the parties in his petition. It is to be noted that INEC which did not supply the result also took an objection as can be seen on page 95 of the records. As per the two affidavits filed by the learned senior Counsel for the Petitioner, the Tribunal allegedly took arguments from Counsel in chamber and not in open Court and dismissed the petition.
In compliance with Practice Direction No. 2 of 2007, the parties duly filed and exchanged their respective briefs of arguments. The Appellant’s brief dated 27th day of September was filed the 2nd day of October, 2007. The first Respondent’s brief dated 29th day of November 2007 was deemed filed on the 4th day of December 2007. The joint amended brief of the 2nd and 3rd Respondents dated 3rd day of December was deemed filed on the 4th day of December 2007.
From the four grounds of appeal, learned Counsel for the Appellant, identified two issues for the determination of this appeal as follows:
“1. Whether the Election Tribunal was right in striking out the petition without hearing it on its merits.
- Whether the Election Tribunal was right in hearing the case and giving its decision in Chambers contrary to the express provision of the Rules and the Constitution of the Federal Republic of Nigeria.”
The 1st Respondent also formulated two issues which are not dissimilar with the ones identified by the Appellant. They are thus reproduced hereunder.
“1. Whether the tribunal was right in holding that the petition was incompetent?
- Whether the proceedings of the Tribunal was contrary to the provisions of the Rule and the 1999 Constitution’”
For their part, the 2nd and 3rd Respondents formulated two issues for determination which issue No. 1 is identical with issue No.1 formulated by the 1st Respondent. While the 2nd issue is almost identical with issue No. 2 as formulated by both the Appellant and the 1st Respondent. For ease of reference, they are produced hereunder as follows:
“1. Whether the tribunal was right in holding that the petition was incompetent?
- Whether the Tribunal denied the Appellant fair hearing?
On the 4th December, 2007 when the appeal came before us for hearing learned Senior Counsel for the Appellant, Chief A.O. Mogboh, SAN adopted his brief of argument and in amplification of the said brief submitted that the question to be resolved at the end of the day is whether the substitution was made seven days before the election. He further submitted that they held a pre-trial conference and everything was heard in the chambers not in public. He then urged us to allow the appeal.
Learned Counsel for the 1st Respondent, C.U. Nweke also adopted his brief with all the authorities contained therein and urged us to dismiss the appeal for lacking in merit. Similarly, learned Senior Counsel for the 2nd and 3rd Respondents, Livy Uzoukwu, SAN adopted his brief and urged us to dismiss the appeal for being unmeritorious.
It is instructive to state at this juncture that I have awhile ago stated that the issues formulated by learned counsel are not dissimilar to one another. I, however prefer the formulation by the learned counsel for the 2nd and 3rd Respondents because it is succinct, concise and apt for the purposes of this appeal. The said Respondents’ issues would determine the real and crucial complaint of the Appellant in this appeal. I would however wish to state for avoidance of any doubt that I will consider all the submissions of Counsel on the identified issues enumerated above as contained in their respective briefs herein.
On the first issue for determination as formulated by the learned Senior Counsel which is to effect that whether Election Tribunal was right in striking out the petition without hearing it on its merits, learned Senior Counsel began his submission by alluding to the fact that the cases of ERIOBUNA v OBIORAH (1999) 8 NWLR (Pt. 616) 622 and EZEOBI v NZEKA (1989) 1 NWLR (Pt.98) 478 are decisions of the Court of Appeal which had maintained strict interpretation and compliance with paragraphs of earlier Decrees which have similar provisions like paragraph 4(1)(c). Learned Senior Counsel submitted that all the cases relied upon by the Tribunal were cases on which the votes cast were definitely in issue. In the instant case, learned Counsel further submitted’ the votes cast are not in issue and at no stage in the proceedings would the Petitioner or the Respondents require the scores at the hearing.
Learned Senior Counsel urge us whilst construing the provisions of paragraph 4(1)(c) to take into consideration the provisions of the entire statutes particularly Sections 140(1) and 144 of the Electoral Act, 2006 as well as paragraphs 4(6) and 49(1) of the First Schedule of the Act.
On whether all scores of candidates at the election was necessary in an action like the one on hand, learned Counsel referred us to the cases of BUHARI v YUSUF & ANOR (2003) 14 NWLR (Pt. 841) 446 at 506 and AJUDUA v NWOGU No. 1 (2004) 10 NWLR (Pt. 898) 56 at 60 and submitted that at this preliminary stage, no evidence of any vote of other parties not stated has been shown to be in issue in the petition under consideration. Leaned Senior Counsel submitted that in the instant petition, neither the votes of the Appellant nor the persons returned i.e. 3rd respondent is in issue. He opined that since the scores were not pleaded there would be no evidence about them.
Learned Senior Counsel referred to the affidavit of Chikezie Uba as per pages 43 – 44 of the record of appeal who works in the office of Counsel for the 2nd to 3rd Respondents where in an action for an extension of time to file their reply averred inter-alia thus:
“3. That I know as a fact;
(a) …..
(b) That the 2nd arid 3rd Respondents, made several efforts at the 1st Respondent’s Headquarters in Abuja to obtain the said documents but the officials of the 1st Respondent kept assuring her to exercise patience as it was saddled with several other requests by other people asking for electoral documents. They further stated that the request are processed in the order they were made.
(c) That this was the predicament the 2nd – 3rd Respondents found themselves until the time for filing of their reply expired.
(d) That it was only on the 28th June, 2006 (i.e. 2007) that the 1st Respondent certified and made available the said documents to the 2nd – 3rd Respondents and which date is evidence on the face of the document.”
Learned counsel contended that though INEC knew or ought to have known that by the Electoral Law, 2006 an election petition must be filed within 30 days of the date the result was declared, yet results and other documents were released to the 2nd and 3rd Respondents only on 28th June, 2007 not 2006 as stated in the affidavit; they knew the time to file this petition would have lapsed. The Appellant, learned counsel further contended still filed his petition in time and has not raised any issue on the results.
Learned Senior Counsel submitted that there are now conflicting decisions of the Court of Appeal on the various interpretations given to provisions similar to paragraph 4(1)(c) of the First Schedule. Learned Senior Counsel further submitted that where there are conflicting decisions of one Court and the Court of Appeal in this instance’ the latter decision is preferred and we were urged to follow and feel bound by the later decisions. Some of these later decisions are AJUDUA v NWOGU No. 1 (2004) 10 NWLR (Pt.898) 56 at 60, PDP v TAIWO (2004) 8 NWLR (Pt.876) P.656 and OWURU v. INEC (1999) 10 NWLR (Pt.622) page 210 at 213.
Learned Senior Counsel drew our attention to the fact that the Appellant had in the Federal High Court instituted a civil suit against the 1st, 2nd and 3rd Respondents in suit No. FHC/ABJ /CS/26/2007 complaining of the alleged manipulation of INEC and the PDP as a political parry long before the election. Learned Senior counsel contended that the case is still pending and INEC and the Respondents were served the processes before the election. With such a civil suit served on them’ INEC still went ahead and conducted the elected for that constituency. Learned Senior counsel opined that INIC should have waited the outcome of the case. He relied on the case of PETER OBI v. INEC & 6 ORS unreported suit SC.123.2007.
On substitution of a candidate learned Senior Counsel conceded the point that a political party has the right to change its candidate before an election. A Court of law normally has no jurisdiction to adjudicate on intra-party contest or nomination of candidate’ He relied on the cases of ONUOHA v OKAFOR (1983) 2 SCNR 244; CHUKWU v ICHEONWU (1999) 4 NWLR (Pt. 606) at 587; OWURU v INEC (1999) 10 NWLR (Pt. 622) P. 21; JANG v INEC (2004) 12 NWLR (Pt.886) 46; TOSHA v YAHAYA (1999) 4 NWLR (Pt.600) 657 and RIMI v INEC (2005) 6 NWLR (Pt.920) P’ 56.
Learned Senior Counsel however forcefully submitted that the above position has since changed with the introduction of Section 34(1) and 34 (2) of the Electoral Act, 2006. These Sections had created and placed an extra duty on INEC in its supervisory role over the affairs of political parties’ cogent and verifiable reasons must be provided by a political party before substitution is allowed’ He relied on the cases of ARARUME v INEC & 2 ORS. Appeal No. CA/A.49 (unreported) and CHIBUIKE ROTIMI AMAECHI v INEC & Ors (unreported) suit No. SC/74/2007. Learned Senior Counsel further submitted that the Courts and Tribunal now have jurisdiction to interpret Section 34(1) and (2) of the Electoral Act, 2006 and has the requisite jurisdiction to do so in this case. We were urged to resolve this issue in favour of the Appellant and against the Respondents.
For his part, learned counsel for the 1st Respondent started his submission by saying that, one of the grounds relied upon by the 1st Respondent in raising its preliminary objection is that the petition Falls outside the scope of Section 145(1) of the Electoral Act, 2006, which according to the learned Counsel clearly states the grounds upon which au election may be challenged before an election tribunal. Learned Counsel further submitted that the grounds forming the basis of an election petition must be one of those recognised under the Electoral Act or the Constitution and must be related to or must have arisen out of acts or omissions that were contemporaneous with the conduct of the election. Learned Counsel argued that the petition in contention was fatally flawed and incompetent and thus striped the tribunal of jurisdiction to hear it’ He relied on the cases of NATIONAL ELECTORAL COMMISSION V NATIONAL REPUBLICAN CONVENTION (1993) 1 NWLR (Pt 267); ADEBIYI V BABALOLA (1993) 1 NWLR (Pt. 267) and IBRAHIM v INEC (1999) I NWLR (Pt. 611) 334. Learned Counsel further submitted that nomination is a preliminary issue which ought to have been challenged at an earlier stage and not after an election has been allowed to go unchallenged and the petitioner has lost. Relying on the case of PDP v HARUNA (2004) 16 NWLR (Pt.900) 597, learned Counsel submitted that the question of nomination would only arise with respect to the interpretation of Section 134(1)(d) of the Electoral Act 2002 (which is in pari material with Section 145(1)(d) of Electoral Act, 2006 where the petitioner was validly nominated but unlawfully excluded from the elections.
It is the submission of the learned Counsel that the case of ARARUME v. INEC supra does not apply to the appeal under consideration. He argued that an Election Tribunal has no jurisdiction once the issue before it is on nomination. He relied on the cases of MADUKOLU & ORS. V. NKEMDILIM (1962) NSCC, 374 at 379 – 380 and DOUKPOLAGNA v. GEORGE (1992) NWLR (Pt. 236) 444 at 458.
Learned Counsel submitted that the issue of who should be a candidate of a given political party at any election is clearly a political one to be determined by the rule and Constitution of the said party and not one justiciable before a tribunal. He cited and relied on the case of OGUNBIYI v. OGUNDIPE (1994) 9 NWLR (Pt. 263) 24 at 39.
The second ground of the 1st Respondent’s Preliminary Objection contended the learned Counsel was the non-compliance of the Appellant with the mandatory provisions of paragraph 4(1) a – d of the First Schedule to the Electoral Act’ 2006. That omission by the Appellant’ learned Counsel further contended rendered his petition incompetent and striped the tribunal of its jurisdiction especially in light of relief 2 of the petition which urged lire tribunal to declare the candidate with the next highest number of votes as the winner. He relied on the cases of KHALIL v YAR’ADUA (2003) 16 NWLR (Pt. 847) 446 at 487 and ABIMBOLA v. ADEROJU (1999) 5 NWLR (Pt. 601) 100.
On the submission by the Appellant that the 1st Respondent refused to make the election results available’ learned Counsel submitted that the said submission has no legal or evidential value in that such a claim was neither referred in the petition or the affidavit in support but is merely an after thought. The Electoral Act’ 2006 made adequate provisions for a Petitioner to obtain an election results none of which the Petitioner availed himself of learned Counsel further submitted.
Leaned Senior Counsel for the 2nd and 3rd Respondents on the other hand submitted that the Appellant by his pleading put the scores declared by INEC in issue. He referred us to relief 2 of the petition (page 3 of the Record) and further submitted that the Appellant failed to comply with the mandatory provisions of paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2006 by not stating the scores of each candidate as enjoined by the said paragraph. He relied on the cases of ABIMBOLA v ADEROJU (1999) 5 NWLR (Pt. 601) P. 100 at 110 paragraph A; IBRAHIM v INEC (1999) 8 NWLR (Pt. 614) 334 at 351 Paras. E – F: MUDIAGA-ERHUEH v INEC (1999) 12 NWLR (Pt. 630) 288 at 299 Para E and 300 paras D – E; OFFOMAH v AJEGBO (2000) 1 NWLR (Pt. 641) 498 and IKEH v N.IOKU (1999) 4 NWLR (Pt. 598) 263. It is the submission of the learned Senior Counsel that the Appellant was under a legal obligation to state the official scores as declared by INEC. He placed reliance on the cases of ERIBONNA v OBIORAH (1999) 8 NWLR (Pt. 616) 622 at 638 paras F – G; BUHARI v YUSUF (supra) and KHALIL v YAR’ADUA (supra).
It is the submission of the learned senior counsel that having failed to state at all the scores of the candidates who contested the election, the petition is clearly in breach of the paragraph aforesaid and is therefore, incompetent. Learned counsel further submitted that when a statute lays certain procedure that ought to be followed, compliance with the said procedure is mandatory. He relied on the case of NNP v. TIJJANI (2006) 7 NWLR Pt. 1007) 26 at 45 Paras C – A.
Learned Senior Counsel submitted that the submission of Appellant that votes were not in issue is grossly misconceived. The Appellant, learned Counsel went on sought the following relief to wit
“That the candidate who has the majority of lawful votes be declared the winner.”
Learned Counsel then posed the following question thus:
“How else can the Tribunal determine ‘who has the majority of the lawful votes’ if no votes or scores were ever pleaded.”
On pre-election issues, learned Senior counsel submitted that the circumstances under which nomination could offer a ground for the challenge of an election is pursuant to Section 145(1)(d) of the Electoral Act, 2006. That is to say where the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election. Learned counsel opined that this is not the case of the Appellant. He relied on the cases of PDP v HARUNA supra; TSOHO v YAHAYA (1999) 4 NWLR (Pt.600) 657 at 671 paras C-E, JANG v DARIYE (2003) 15 NWLR (Pt.843) 436 at 460 paras E-F; AYOGU v. NNAMANI (2006) 8 NWLR (Pt.981) 160 at 183 paras. C – D and IBRAHIM v INEC (supra).
Learned Senior counsel submitted that it was preposterous for the Appellant to introduce the provision of Section 34(1) and 32(2) of the Electoral Act, 2006. The two Sections, learned Counsel went on had nothing to do with qualification of candidates contesting the National Assembly Election. Having conceded that the issue of nomination and substitution of a candidate are pre-election issues, the Appellant’ according to the learned Senior Counsel has equally conceded that a tribunal has no jurisdiction to entertain them. Learned counsel submitted that the cases of ARARUME v INEC & ORS and AMAECHI v INEC & ORS supra are not opposite to the facts of the case on hand. None of the two cases was commenced at the Election Tribunal. Learned Counsel contented that rather than help the Appellant, the two cases confirmed the position of the respondents thereof.
On the action at the Federal High Court, Abuja, learned Senior Counsel argued that the process was not part of the proceedings in the Tribunal or part of the record, and therefore reference to it by the Appellant’s Counsel is of no legal consequence as far as the appeal on hand is concerned. On the submission of the Appellant’s Counsel that the lower Tribunal had discretionary power if consideration is given to the provisions of paragraphs 49(1) and 4(6) of the First Schedule, learned Senior Counsel argued that the Tribunal has no discretion where it finds a petition to be incompetent. The Appellant’s case was not just a case of not strictly complying with paragraph of the 1st Schedule but it was a case of total noncompliance.
On the none release of the results of the election, learned Counsel contended that the Electoral Act made adequate provisions for any petitioner that requires electoral materials to enable him to file or maintain his petition if out of ignorance the Appellant failed to take advantage of that provision, he can only blame himself and not the Tribunal. Learned Counsel urged us to resolve issue No’ 1 in favour of the Respondents and against the Appellant.
Now, from the onset let me say that the crucial question that must be asked and answered is, did the Petitioner make the issue of scores of the candidates an issue in the petition under consideration? On what ground or grounds the petitioner questioned the candidature of the 3rd Respondent? To answer the questions posed, recourse had to be made to the petition of the Appellant declared incompetent by the lower Tribunal.
The Petitioner in the petition under consideration claimed as follows:
“(1) Your petitioner prays that it may be determined that the ‘ said Chief (Mrs) Juliet Akano, 3rd Respondent who was declared winner was void not being duly nominated to contest the election as she was not nominated by her party, the 2nd Respondent within the time stipulated in the Electoral Act’ 2006.
(2) That the candidate who has the majority of lawful votes should be declared the winner’”
Learned Senior Counsel for the Appellant submitted that all the cases relied by the lower Tribunal are cases which maintained strict interpretation and compliance with paragraphs of earlier Decrees which have similar provisions like paragraph 4(1)(c). A careful and critical examination of the cases relied on by the lower Tribunal will reveal the fact that in all those cases, the scores of the parties were made an issue for example in the case of ABIMBOLA v ADEROJU (1999) 5 NWLR (Pt. 601) 100, this court per Adekeye, JCA at page 111 of the report noted that:
“Paragraph 5(1)(c) is meant to plead that there was election and the outcome of the election in Ifelodun Local Government Council of Osun State on the 5th of December, 1998 Operative word shall used in paragraph 5 is meant to be obligatory or mandatory and should be so interpreted. The petitioner is bound to reveal and plead the scores of the three candidates who contested the election under schedule 5, paragraph 5(1)(c) of Decree No. 36 of 1998……”
It is instructive to state that whether the petition under consideration is competent or otherwise would depend on whether the Petitioner had made the scores of the candidate an issue in the petition. Under Section 143(1) of the Electoral Act, 2006 an election may be questioned on any of the following grounds:
“(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election.
(b) …..
(c) …..
(d) …..
I am of the view that going by the reliefs of the Petitioner, the petition is essentially based on the qualification or otherwise of the 3rd Respondent who was declared the winner of the election. Without mincing words, the 3rd Respondent was not in the first instance qualified to contest the election because she was not validly nominated by her party, the 2nd respondent. This being the case, I have no hesitation in agreeing with the learned Senior Counsel for the Petitioner that they did not make the scores of the candidates as an issue in the petition under consideration. I equally hold the view that the cases relied upon by the lower Tribunal are not an all fours with the facts of the petition in contention for in all those cases the scores of the candidates were made issues unlike in the case we have on hand.
Learned Senior Counsel for the 2nd and 3rd Respondents submitted that the circumstances under which nomination could offer a ground for the challenge of an election is pursuant to Section 145(1)(d) of the Electoral Act. That is to say where the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election. With due respect to the learned Senior Counsel this submission is most incorrect in view of the clear provision or Section 145(1)(a) of the said Electoral Act above stated and I so hold.
Learned Counsel for the Respondents have made heavy weather of the fact that by the Petitioner’s relief No. 2, he has made the scores of the parties an issue in the petition and was under legal obligation to state the results of the election or else how can a candidate with the majority of lawful votes, who the Petitioner prayed to be declared the winner of the election be determined. With due respect to the learned Counsel’ the main relief of the Petitioner is to declare the election void because the 3rd Respondent was not validly nominated to contest the election. The 2nd relief of declaring the candidate with the majority of votes as the winner of the election is just a consequential relief dependent on nullifying the election on grounds of disqualification.
That aside, the Petitioner/Appellant had in the Federal High Court instituted a civil suit against the respondents in suit No. FHC/ABJ/CS/261/2007 complaining about the nomination of the 3rd Respondent long before the election and all the Respondents were served with the processes. It is note worthy to observe that the Respondents did not deny the existence of the suit which is still pending. With such a civil suit served on them, INEC still went ahead and conducted the election for that constituency. I am of the strong view that INEC should have waited the outcome of the case’ In the case of PETER OBI v INEC & ORS supra, the apex Court per Aderemi, JSC held thus:
“I only need to add that as at 14th April, 2007 when the 1st Respondent (INEC) was conducting gubernatorial election in Anambra State, the seat of the Governor of that State was not vacant. The election was a wasteful and unnecessary exercise. The 1st Respondent was aware that at … … time the Appellant was in Court pursuing his legal rights. A body that has respect for rule of law, which INEC ought to be, would have waited for the outcome of the Court proceedings; particularly when it was aware of it.” (Underlining supplied for emphasis).
In his own contribution and on the same point Justice Chukwuma-Eneh, JSC stated as follows:
“The Appellant is in the Court to assert his right to exhaust his term of office as Governor of Anambra State having taken his oath of allegiance and oath of office on 17-03-2006. I must say that the Court does not allow litigant parties pending litigation to foist on the ‘Court a fiat accompli and thus render the decision of the Court utterly nugatory. In this regard the 1st and 5th Respondents should in the overall interest of the rule of law have averted the untoward consequences of having proceeded Anambra State and the subsequent swearing-in of the 5th Respondent as the Governor of Anambra State. The electoral this matter and save everybody, if I may put it so, the unnecessary embarrassment, The 1st Respondent (INEC) should have known better with a team of lawyers assisting it”‘ (Underlining supplied for emphasis).
Again, in a mole recent case, concerning scores at an election this Court insisted on need of Court to eschew technicalities and substantial justice to the parties before it. This Court pet Ikongbeh, JCA blessed memory held thus:
“I must repeat what I said in my contribution in WILLIAMS v TINUBU & ORS (unreported No. EPT/CA/L/03/03 decided on 18-07-03 regarding the increasing incidence of over-dependence on technicality in election petitions:-
Indubitably an election petition is a matter sui generis and need to be disposed of as expeditiously as possible. That, with all due respect, is not an invitation to adopt the most cavalier method of dealing with it. The need for speedy disposal of the petition must be weighed against the wider need not only to do justice but also to be seen to be doing it, taking into consideration the nature of an election petition and what the entire process entails for the body polity. In this regard I would like to recall the words of wisdom and caution issued by Holden, J., DOGARAI v GWARZO & ORS (1985) NNLR 9 at 10 on this point.’
‘If this were an ordinary civil action I would have no hesitation in refusing the application. In a civil action, if the parties or their Counsel cannot take the trouble to get their application right, the Court shows them no mercy, but in an election petition we are not concerned with the interest and claims of private individuals. It has been alleged that the election in this constituency was not properly conducted. That is a matter in which the interest of the community is seriously concerned, and in which public interest completely over-shadows the interests of the individuals involved. It is necessary that the allegations of impropriety in the conduct of the election be enquired into and pronounced upon judicially, and no technicalities can be allowed to stand in the way of that injury. Accordingly, I will over look the fact that this application is in the wrong form and without notice and without any supporting affidavits or reasons of any sort’ and I will do-what I think best for the purpose of bringing this petition on for hearing, in spite of the mistakes of Counsel for the Petitioner.’
That decision was given under a different electoral law, but the same principle that was embodied in it has run through all electoral laws that we have had since, including the present one. Unhappily one cannot pretend to be unaware of the growing tendency in recent time among judges who are called upon to hear and determine election matters to shy away from this sacred duty of hiding behind technicalities. The Nigerian society is a very delicate one. There is nobody can honestly dispute this, widespread discontent. In my view, the best panacea for creating a peaceful and conducive atmosphere is to keep all avenues of ventilating grievances as wide open as possible. While we must work according to and within the provisions of the law and the rules we must do all we can to avoid enthroning technicality above everything else, even, ray, especially in election petition matters.” (Underlining supplied for emphasis.)
Not done yet, the erudite Jurist went on to hold that in the case of AJUDUA V. NWOGU No. 1 (2004) 16 NWLR (Pt.898) as follows:-
“If what one reads in the press today is anything to go by, then we in the judiciary need urgently to look inward with a view to reversing the uncomplimentary views the people hold of us. One can hardly quarrel with Harry Nwana who warned that
‘Where a people are willfully injured by men in power, and they have no recourse to turn to for redress, it aggravates the injury. Such people can behave irrationally and may take it out on neither have not there person. See Vanguard of Wednesday, 23-07-03 p.13.”
He no doubt echoed the view of a great majority of Nigerians when he lamented and advised that-
“If a revolution should occur in Nigeria it may not be because injustice was done, but because no civilized legal redress is available to the injured. If and when that happens our judiciary and the politician who impede justice must hold themselves accountable. The politicians may do as they like, and their parties may abuse the system as they think fit but let it be known that when the judiciary is suffocated and the poor and lowly cannot look up to it for basis justice, the last hope of the common man would have been extinguished….”
Election grouses should not be resolved on the same principle as those that govern civil complaints…. Facts should take precedence over legal jargon… The danger in, as it were, gagging those who feel aggrieved by throwing them out of the Tribunal or court on techical grounds is that the grievance, real or imagined, is bottled up. When the bottle burst the whole messy trouble will come spewing on us all, especially the poor. It is better to let all who feel aggrieved have their say on the substance of their complaint. If there is no substance in it then let them be so told after they have been heard unless, of course the non-compliance is so glaring as testify the premature termination of the hearing. The avoidable tension will then have been diffused.”
I am of the firm view that though the Petitioner had not made the scores of the parties an issue in his petition even if he had done so, the law has gone beyond the times of strict interpretation of the provisions of paragraph 4(1)(c). This is the attitude modern Courts now adopt to election petitions. Hear the parties who have come to the Tribunal with a grievance. I am of the further view that if the Election Tribunal had read these warnings from this Court as spelt out in the cases supra; they would in reluctant to strike out the petition.
In the light of all that have been said this issue must and it is hereby resolved in favour of the Appellant and against the Respondents. The Tribunal for avoidance of any doubt was wrong in holding that the petition was incompetent.
Issue No. 2 is whether the tribunal had denied the Appellant fair hearing. Learned Senior Counsel began his submissions on this issue by examining the provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria wherein the Election Tribunal and the Court are enjoined to conduct hearing of cases that come before them in public. The learned Senior Counsel started with the provision of paragraph 5 to the First Schedule to the Electoral Act 2006 which provides:
“(50) Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the Petitioner and the Respondent were respectively the Plaintiff and the Defendant in an ordinary civil action.”
Order 51 Rule 2(1) of the Federal High Court Rules, paragraph 11 provides thus:
“The sitting of the Court for the determination and hearing of the rights and obligations of the parties shall be public’”
In the Electoral Act 2006 it is provided in paragraph 18 of the First Schedule that:
“18. Every election petition shall be in open Tribunal or Court.”
The 1999 Constitution in its Section 36 (3) provides:
“The proceedings of a Court or the proceedings of any Tribunal relating to the matters mentioned in subsection (including the announcement of the decision of the Court or Tribunal) shall be held in public.”
Learned Senior Counsel submitted that because of the above legal provisions, the National Election Tribunal holden at Owerri must conduct their business in public, Learned counsel contended that in the instant case the pre-conference trial, the argument of the preliminary objection and the Ruling were conducted in the Chambers of the Judges with the crowd and supporters of the parties being denied the opportunity of knowing what was happening. Learned Senior Counsel went on to contend that he personally took the pre-conference and the argument in Chambers and his junior stated that the Ruling was in Chambers too. It is the submission of the learned Counsel that the hearing of the case in Chambers touches on the legality of the whole proceedings including the Ruling or decisions given thereafter. He relied on the cases of N.A.B LTD v BARRI ENG. (NIG) LTD (1995) 1 NWLR (Pt. 413) p. 257 and MENAKAYA v MENAKAYA (2001) 16 NWLR (Pt.738) p. 203. We were urged to resolve this issue in favour of the Appellant.
For his party, learned counsel for the 1st Respondent submitted that the Tribunal complied with the provisions of Section 36(3) of the 1999 Constitution during the pre-hearing sessions as members of the public including journalists were present in fact some of the proceedings were allegedly reported by the media.
Learned Counsel further submitted that the pre-hearing as the name suggests is preliminary to the hearing of the substantive action and also that the venue used was large enough to accommodate the parties’ supporters and the press and so complied with the provisions of the Electoral Act.
On the other hand, Senior Counsel for the 2nd and 3rd respondents submitted that the alleged denial of fair hearing was not anchored on any fact contained in the Record. Learned Counsel referred to the affidavits deposed to by the Appellant’s Counsel and further submitted that contrary to the claims of the Deponents, the Tribunal at all times material to its pre-hearing sessions, never placed any restriction on parties, their supporters, lawyers, pressmen and members of the public accessing the Chambers.
Learned Counsel contended that it is unfair to the Tribunal to allege that only parties and Counsel are invited to the tribunal’s chambers for the pre-hearing sessions. Learned Counsel further contended in so far as the Tribunal did not exclude members of the public from its pre-hearing sessions as enjoined by paragraph 3(7)(d) of the Practice Direction’ it is wrong to allege that the right to fair hearing of the Appellant was breached. Learned Senior Counsel submitted that it is not unconstitutional to sit in Chambers. He relied on the case of OYEYIPO v OYINLOYE (1987) 2 SC.148 at 162. He urged us to resolve this issue in favour of the Respondents.
Now, from the avalanche of statutory provisions stated a while ago, the sittings of the Election Petitions Tribunal and indeed all the Courts in the country must be held in public. The question to be asked at this stage is, did the Election Petitions Tribunal, Owerri sit in public in the case under consideration? To answer this question, recourse had to be made to the processes filed in the appeal under consideration.
On the 22nd day of October, 2007, an affidavit deposed to by Ifeoma C. Uzoefuna, a junior Counsel in the Chambers of the Senior Counsel was filed. The pertinent paragraphs for the purposes of this appeal read thus:
“(3) That on the 8th of August, 2007, I accompanied my principal in Chambers Chief A.O. Mogboh, SAN to the Election Petition Tribunal holden at Owerri.
(4) That when our matter came up, we were invited by the Registrar of the Court to the Judges’ Chambers where they were sitting. Those in attendance were my Principal Chief A.O. M-ogboh, SAN and my myself for the Petitioner, C.U. Nweke for the for the 1st Respondent and Livy Uzoukwu, SAN with C.K. Uba for the 2nd and 3rd Respondents as well as the Petitioner himself. Counsel adopted their written addresses’ and the matter was adjourned to 20th August, 2007 for ruling. (5) That on the 20th August, 2007, I went alone for the matter which was scheduled for ruling and when our case was called up, we i.e. myself for the Petitioner, C.U. Nweke for the 1st Respondent, Livy Uzoukwu, SAN, with C.K. Uba for the 2nd – 3rd Respondents as well as pardes (though only the Petitioner was present) were again invited to the Judges’ Chambers for the proceedings of the day to the judges’ chambers for the proceedings of the day. It was in Chambers that the ruling was given.
Similarly on the 3rd October, 2007, the learned Senior Counsel deposed to an affidavit consisting of 8 paragraphs.
The pertinent paragraphs for the purpose of this appeal are paragraphs 4, 5, 6 and 7 and they are produced hereunder as follows:
“(4) That on the 23rd of July, 2007, when the matter came up we were invited by the registrar of the tribunal to the Judges’ Chambers ostensibly upon the instructions of the Chairman of the Tribunal where proceedings for that day was held with me appearing with A.O. Mogboh, Jnr., for the petitioner, C.U. Nweke holding brief of Prof. C.U. Iloegbunam for the 1st Respondent and Livy Uzoukwu, SAN with the C.K. Uba for the 2nd – 3rd Respondents. The petition was adjourned to 8th of August 2007 for pre-trial conference.
(5) That on the 8th of August, 2007 which was scheduled for Motion for Preliminary Objection, proceedings were again held in Chambers with me appearing with I.C. Uzoefuna (Miss) for the Petitioner, C. U; Nweke for the 1st Respondent and Livy Uzoukwu, SAN with C. K. Uba for the 2nd – 3rd Respondents. Written addresses in respect of the Preliminary Objections filed by the Respondents were adopted and the matter adjourned to 20th August, 2007 for Ruling,
(6) That my junior in Chambers J.C. Uzoefuna (Miss) informed me and I verily believe her that on the 20th day of August, 2007 which was scheduled for ruling, the Tribunal again sat in Chambers and delivered the ruling.
(7) That ever since proceedings in this petition commenced’ all were held in Chambers’”
Reacting to the affidavits stated supra, it is instructive to note that the counsel to the 1st Respondent did not file a counter affidavit to contervert the contents of the two affidavits. As for the 2nd and 3rd Respondents, a counter-affidavit of six paragraphs deposed by C. Nweke, a legal practitioner in the Chambers of the Senior Counsel was filed on the 2nd day of December, 2007. The relevant paragraphs are as follows:
“(3) That on the 23rd day of July, 2007 when the matter came up, the litigants, their counsels and members of the press and the number of supporters that could be accommodated were present at the Proceedings.
(4) That on the 8th of August, 2007, on the date the motion for preliminary objection was taken, the litigants, their counsels, supporters and members of the press were also present.
(5) That on the 20th of August when the Tribunal’s ruling was given the litigants, their Counsels, supporters and members of the press were also present.
It is now settled beyond peradventure that a party who intends to dispute facts or averments deposed to or contained in an affidavit has the legal duty to swear to a counter-affidavit to challenge and controvert such facts. If the party fails to do so, then the averments of facts made in an affidavit are taken to be correct and true and deemed to have been admitted by that party. See LIJADU v. LIJADU (1991) 1 NWLR (169) 627, GLOBE FISHING v. COKER (1990) 11 SCNJ 56 and AJEWOLE v ADEFIMO (1996) 2 NWLR (431) 391.
The Courts have a duty and it has been held that they are bound to accept and act on such unchallenged and uncontroverted averments without hesitation. See OLORI MOTORS v UBN (1995) 6 NWLR (554) 493 at 506-7, OSUNDU v AKHIGBE (1999) 1 NVLR (625) 1 at 1, NAB v ABDULLAHI (2000) 6 NWLR (262) 549 at 556′
It is instructive to observe that from the contents of the counter-affidavit, it cannot be said that the Respondents (2nd & 3rd) have controverted the averments of the two affidavits filed by the Appellant. In the said two affidavits, the Counsel averred that pre-hearing conference, hearing and the Ruling of the lower Tribunal were all conducted in the Chambers of the Tribunal’s Chairman. The contents of the counter-affidavit are evasive and cannot be said to have controverted the averments contained in the affidavits of the Appellant. Far from it. And as for the 1st Respondent, no counter-affidavit was filed. That being the case, the 1st Respondent is deemed to have accepted the averments contained in the two affidavits filed on behalf of the Appellant.
In the light of all that adumbrated above, I hold without any hesitation that the pre-hearing conference, hearing and the Ruling of the Tribunal were all done in Chambers, in the case of NAB LTD v BARRI ENG. (NIG) LTD supra, the Apex Court per Ogundare JSC of blessed memory held thus:
“Coming back to the case on hand, it is my respectful view that sitting in Chambers to deliver judgment is not, on the facts before us, sitting in public or in open Court. A Judge’s Chambers is not one of the regular courtrooms nor is it a place to which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge. There is no evidence that such on invitation was issued to the public in this case nor is there evidence that any member of the public attended. The facts before us show that Counsel for the parties were already seated in the regular courtroom waiting for the Judge to sit to deliver judgment when they were called into Chambers and the judgment was delivered by the learned trial Judge. There is in this case a clear breach of the mandatory provisions of Section 33(3) and (13) of the 1979 Constitution and Order 36 Rule 1 of the High Court Rules of Lagos State. When the learned trial Judge resorted to this unusual procedure one would, perhaps, never know. It is however, not of the making of any of the parties or their Counsel. Whatever the learned Judge’s reason(s) the defect here is fundamental and goes to the root of the entire proceedings. To suggest that because the hearing was in open court, the delivery of judgment in Chambers is a technicality as no miscarriage of justice was occasioned thereby, is to beg the issue. The delivery of judgment is, in my respectful view, part of hearing of a cause or matter. A breach of mandatory constitutional provision is more than a mere technicality; it is fundamental. And it is no argument that there has been no miscarriage of justice. This is borne out by the decisions of this Court on Section 258(1) – see IFEZUE v. MBADUGHA (1984) 1 SCNLR 427; (1984) ALL NLR 256.
It is submitted on behalf of the plaintiff that defence counsel having attended the sitting in Chambers without protest, the defendant must be taken to have waived his right to have judgment delivered in public or in open court. I regret I cannot accept this submission. The right provided under Section 33(3) and (13) and Order 36 Rule 1 is public right for ‘every Court of justice is open to every subject of the King’ per Lord Halsbury in SCOTT v. SCOTT (supra). ‘The Court must be open to any who may present themselves for admissions.’ Per Lord Blanesburgh in MCPHERSON v MCPHERSON (supra). Secret trials, whether civil or criminal, are not normal norms of – a democratic society. True, there are strictly defined exceptions in the proviso to sub-section (13) of Section 33 of the Constitution to the right of the public to free access to Court proceedings. The case on had does not come within these exception. Being a public right, therefore, the Defendant nor any party to a suit cannot waive the right – see ARIORI v. ELEMO (1983) 1 All NLR 1; (1983) 1 SCNLR 1.
The conclusion I reach is that by the delivery of the judgment in this case the learned trial Judge has committed a fundamental breach of the provisions of Section 33(3) and (13) of the 1979 Constitution and of Order 36 Rule 1 of the High Court Rules of Lagos State. The breach vitiates the entire proceedings before him. There must be no room at any stage of the hearing of a cause for cloistered justice.”
Again, in the case of MENAKAYA v MENAKAYA (supra) the Apex Court held thus:
“Section 33(3) of the Constitution of the Federal Republic of Nigeria, 1972 (in force at the time of the proceedings before the trial Court in this case, now Section 36(3) of the 1999 Constitution) enjoined proceedings of a Court of Tribunal for the determination of civil rights and obligations to be in open Court. In the instant case, as the trial Court set in Chambers in conducting the proceedings other than as authorized by the Constitution, the said proceedings other than as authorized by the Constitution, the said proceedings suffered a fundamental vice that vitiated the entire proceedings and rendered the judgment delivered null and void. (NIGERIA ARAB BANK LTD. v. BARRI ENGINEERING NIG. LTD. (1995) 8 NWLR (Pt.413) 257 referred to.) (p.249, paras. A – C)”.
Learned Senior Counsel for the 2nd and 3rd Respondents submitted that it is not unconstitutional to sit in Chambers and cited the case of OYEYIPO & ANOR v OYINLOYE supra to buttress his submission. With due respect to the learned Senior Counsel, the case of Oyeyipo cannot be called in aid of this submission. The facts and the circumstances of that case are not on all fours with the one on hand. In that case, one of the issues for consideration was whether an Appellant who had failed to comply with the rules of Court as to filing of brief of argument can, complain of violation of the rule of fair hearing if his appeal is dismissed for want of prosecution at the instance of the Respondent pursuant to the rules in that behalf’ by the Court in Chambers. The apex Court held thus:
“That the rules of natural justice are applicable to hearings of the Court whether sitting in Chambers or in open Court. Where the rules of natural justice are properly applicable, a violation of the rules will result in the nullification of the proceedings. However, the rules are applicable to a party whose case is properly before the Court and not where a party has not satisfied the conditions of being heard. Where as in this case, the party has not satisfied the conditions required for hearing his case, the Court will not be competent to hear him. The right to be heard having not been earned, cannot be exercised. There is therefore, no question of the breach of a non-existent right. For a party who has failed or neglected to submit his case for consideration cannot complain of a denial of hearing. The failure or neglect per se tantamounts to abandonment to an abandonment of the appeal.”
In the light of all that I said on the issue, same is resolved in favour of the Appellant and against the Respondents. I hold with ease that the lower Tribunal denied the Appellant fair hearing in the circumstances of this appeal under consideration. In sum, in the light of all that have been said, I hold the view that this Appeal is pregnant with a lot of merit and is hereby allowed. I make the following orders.
- The Ruling of the lower Tribunal is hereby set aside. The petition 1st hereby sent back to a differently constituted Tribunal firm trial on the merit.
- The Respondents shall pay to the Appellant costs of N30,000.00.
Other Citations: (2008)LCN/2648(CA)
