Olarenwaju Adeyemi Tejuosho V. Independent National Electoral Commission (INEC) & Ors (2008)
LawGlobal-Hub Lead Judgment Report
M. D. MUHAMMAD, J.C.A.
This is an appeal against the ruling of the National Assembly Election Petitions Tribunal sitting at Abeokuta, Ogun State dated 20th September 2007 in petition No. EPT/OG/NASEN/53/2007. The brief facts of the case which gave birth to the appeal, are briefly recounted immediately.
The Appellant, the 3rd Respondent and others were candidates at the National Assembly election for Ogun Central Senatorial Seat conducted by the 1st, 2nd, 4th – 83rd Respondents on 28th April 2007. Aggrieved by the declaration and return of the 3rd Respondent, the Appellant filed a petition on 25-5-07 at the lower tribunal inter alia challenging same.
By their application dated and filed 7th August 2007, the 1st, 2nd, 4th – 83rd Respondents challenged the competence of the petition and by extension the jurisdiction of the tribunal. Before the application, 1st, 2nd, 4th – 83rd Respondents had filed and served their reply to the petition on 3-07-07. 1st, 2nd, 4th – 83rd Respondents objection was argued on the 12th September 2007 and in the tribunal’s considered ruling dated 20th September 2007 the petition was dismissed on the grounds that the Petitioner had failed to specify his right to present the petition as required by paragraph 4(1)(b) of the first schedule to the Electoral Act 2006. Being dissatisfied with the tribunal’s ruling, the Petitioner has appealed to this court on a Notice containing two grounds of Appeal.
In compliance with the rules of court, parties have filed and exchanged their briefs of argument. The briefs were adopted and relied upon by Counsel at the hearing of the Appeal.
At the hearing of the Appeal, Mr. Clarke Learned Senior Counsel for the Appellant abandoned Appellant’s second issue for determination. The effect of this is that no issue has been distilled from the 2nd ground in the Appellant’s Notice of Appeal. A ground of appeal from which no issue for determination has been distilled is deemed abandoned. We accordingly struck out not only the abandoned issue which Counsel asked us to but the ground, of appeal from which the abandoned issue was distilled as well. Following this development, the two sets of Respondents abandoned their second issues as distilled in their respective briefs. These issues were also struck out. The Appeal was, in the result, argued on a lone issue in the Appellant’s brief which reads:-
“(i) Whether the Tribunal was right in law in holding that the Appellant did not specify his right to bring the petition in accordance with the provisions of paragraph 4(1)(b) of the First Schedule to the Electoral Act, 2006 thereby having no focus standi without properly construing the entirely of the petition. (Ground of Appeal No.1)”.
The surviving issues in the briefs of the two set of Respondents are similar to the foregoing.
Appellant’s main grouse in the appeal is as to the tribunal’s failure to give effect to the plain words of Section 144(1) and paragraph 4(1) (b) to the first schedule of the Electoral Act 2006 in its determination of Appellant’s locus standi to institute his petition. Senior Appellant Counsel submitted that the rule of interpretation applicable in the matter as enunciated inter alia in INAKOJU Vs. ADELEKE (2007) 4 NWLR (Pt.1025) 427, ARAKA Vs. ECBUE (ZOOS)17 NWLR (Pt. 848) 6, AG ONOO STATE Vs. AG EKITI STATE (2001) 50 WRN 11 and ORJI Vs. FRN (2002) 12 NWLR (Pt.1050) 55 At 69, required giving the ordinary words of the statute their literal effect. He contended that when similar task confronted this court in NNAMANI Vs. NNAJI (1999) 7 NWLR (Pt. ) 313 At 329 and 330 and in the unreported Appeal No,CA/I/EPT/10/2007 delivered on 13th March 2008: SENATOR IBIKUNLE AMUSU Vs. INEC & 259 ORS, the court in determining the locus standi of the Petitioner gave effect to the plain words of the relevant statutes. The two decisions which are on similar facts and legislations bind the tribunal rather than the decision in EGOLUM Vs. OBASANJO (2007) 3 EPR 601 the tribunal applied.
Learned Senior Counsel submitted that the Appellant, who had averred being a candidate in the election he was disputing in the petition is presumed in law to have complied with the requirement of Section 65 of the 1999 Constitution. It was argued that the tribunal had erred when it ruled the petition incompetent for its failure to disclose the political party that sponsored the Appellant. Senior Counsel further relied on OBASANJO Vs. YUSUF (2004) 9 NWLR (Pt. 877) 144, GOODHEAD Vs. AMACHREE (2004) 1 NWLR (Pt.854) 352 at 361 and ADEBUSUYI Vs. ODUYOYE & ORS (2004) I NWLR (Pt. 854) 406 at 428, and urged us to allow the appeal and remit the petition to a differently constituted tribunal for trial on the merits.
In arguing the sole issue in the Appeal, Mr Taiwo, Learned Counsel for the 1st, 2nd, 4th – 83rd Respondents submitted that Appellant’s Petition is an election matter, a very special proceeding, whereat strict compliance with the requirement of the law and rules of procedure are enforced for obvious reasons. The tribunal had a duty under Section 147(3) to enforce the mandatory provisions of Section 144(1) and paragraph 4(1)(b) in the first schedule of the Electoral Act side by side with Section 65 of the 1999 Constitution. Learned Counsel contended that the Supreme Courts decision in EGOLUM Vs. OBASANJO (supra) which informed the tribunal’s decision still remains binding as same had been further applied ‘by the apex court in BUHARI Vs. YUSUF (2003) 14 NWLR (Pt.841) 447. Learned Counsel relied further on KALU Vs. UZOR (2004) 12 NWLR (Pt. 886) 1 At 35 and 36 and INAKOJU Vs, ADELEKE (2007) 4 NWLR (Pt. 1025) 423 SC in urging us to uphold the tribunal’s decision and dismiss the Appeal.
Arguments contained in the 3rd Respondent’s brief are a virtual replica of those contained in the 1st, 2nd, 4th – 83rd Respondents’ brief. It is unnecessary to reproduce them again.
A great deal must and has been conceded by Counsel to both sets of Respondents to Learned Senior Counsel for the Appellant because he is on a very firm terrain. The tribunal could not hold differently. They all agreed with Senior Counsel that whenever a Plaintiff’s locus standi becomes an issue, the issue is determined by reference to the Plaintiff’s claim alone. In the instant case, the question whether or not the Appellant has the right to claim the reliefs he seeks in his petition is determinable from the averments in the petition. I also concur. The authorities are legion but see: ALHAJI IDRIS WAZIRI Vs. ALHAJI SALE USMAN DANBOYI (1999) 4 NWLR (Pt. 598) 239 At 246, EZEOBI Vs. NZEOKA (1989) (Pt.98) 478 at 487 and THOMAS vs. OLUFOSOYE (1986) 1 NWLR (Pt.18) 669 At 686 and 690-62.
Again, it is common between the parties and the tribunal also rightly settled on the fact that the right to institute a petition against the return of a successful person in an election is statutorily given. Section 144(1) of the Electoral Act 2006 earlier reproduced in this judgment provides for the right to sue. Counsel also contended that for the Petitioner to enjoy his right of action as donated by Section 144(1) of the Electoral Act he must meet all the conditions stipulated under paragraph 4(1) of the first schedule to the Electoral Act. The tribunal wisely found this much as well. I also concur.
Thirdly, Counsel were at one that in ascertaining the legislators intention behind the provision under Section 144(1) and paragraph 4(1) of the first schedule to the Electoral Act, the plain words of the provisions must be given their ordinary literal meaning. The tribunal correctly endorsed Counsel’s position. I am obliged to do the same. The underlying principle has always been that the meaning of any legislation is necessarily collected from the plain and unambiguous expressions used therein. Thus, where the words in a statute are clear and unambiguous their natural or grammatical meaning must be assigned to them. Courts only deviate from the natural or grammatical meaning of the ordinary words if giving effect to their clear and plain meaning will lead to ambiguity or absurdity. See AHMED Vs. KASSIM (2003) 1 W.L.R.N.C 89 At 91, ORCI Vs. FRN (2002) 13 NWLR (Pt. 1050) 55 At 69 and ARAKA Vs EGBUE (2005) 17 NWLR (Pt. 848) 1 at 6-7.
In determining whether or not the Appellant had disclosed his locus standi to present his petition, the tribunal in particular examined the averments in the petition vis-a-vis Section 144(1) and paragraph 4(l)(b) of the first schedule to the Electoral Act 2006. These are hereunder reproduced for ease of reference.
Paragraphs 1 and 2 of the petition read:-
“1. Your Petitioner Olanrewaju Adeyemi Tejuoso is a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the above election.
- Your Petitioner herein state that the election was held on 28th April, 2007 when he, Dr. Olanrewaju Adeyemi Tejuoso and Iyabo Obasanjo-Bello together with others were candidates at the said election. Iyabo Obasanjo-Bello was credited with 201,889 number of votes as against Olanrewaju Adeyemi Tejuoso 12,002, “Yusuff Adisa Ogunjobi 128 AA, Remilekun Rasak Bakare 21, 517 AC, Alhaji Tayo Sowumni 159 APGA, Awesu Abdurashecd Abolade 257 CPP, Buhari Olufemi Olatunji 203 relief sought by the DPP, Kolawole Olusina Shobukanla 214 FRESH, Raufu Adebesin 104 UNPP” with Iyabo Obasanjo-Bello being returned as having been duly elected as Senator Ogun Central Senatorial District Ogun State of Nigeria”. (underlining supplied for emphasis)
Section 144(1) of the Electoral Act provides:
“S.144(1) An Election may be presented by one ore more of the following persons:-
(a) a candidate in an election
(2) a Political Party which participated in the Election:
(underlining supplied for emphasis)
Paragraph 4(1) of the first schedule to the Electoral Act provides:-
“4(1) An Election Petition under this Act shall:-
(a) specify the parties in the election petition.
(b) specify the right of the petitioner to present the election petition
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election and the ground or grounds on which the petition is based and the relief sought by the Petitoner”. (underlining supplied for emphasis)
Now, in determining 1st, 2nd, 4th – 83rd Respondents objection, the tribunal held inter alia as follows:-
“…we have been able to carefully scrutinize the whole paragraphs of this petition. The Petitioner only pleaded that he was a candidate and that he had the right to be returned or elected at the election. Nowhere in the whole paragraphs of the petition was it pleaded that he is a member of any political party or that he was a candidate sponsored by any political party
.. The Petitioner has therefore failed to specify his right as required by paragraph 4(1)(b) of the first schedule to the Electoral Act. ….. This conclusion had been preceded by the following finding among other:-” while we humbly take the wise Counsel of His Lordship Belgore JSC (as he then was) in the case of EGOLUM Vs. OBASANJO (supra) At P.648 Paragraphs G-H, and hold that we are entitled to presume that the Petitioner who pleaded that he was a candidate had the qualification set out in Section 65 of the 1999 Constitution and that he was cleared to contest, we are however that(sic) …….. the Petitioner was a candidate sponsored by a political party, we cannot however make the surviving issues in the briefs of the two set of Respondents are similar to the foregoing presumption when the issue is to which political party sponsored him. In other words a party must be a candidate sponsored by a political party before he can contest and win an election see AMAECHI Vs. INEC (2007) 9 NWLR (Pt.1040) 504 At 536….”
I am in complete agreement with Senior Counsel for the Appellant when he forcefully submitted that the tribunal’s foregoing decision is wrong. The law entitles “a candidate at an election” to sue and claim reliefs in respect of results in the particular election. Appellant herein had not only pleaded the fact of his being “a candidate” in the election to which his petition relates but proceeded to state who the other candidates are, the scores of these candidates, the holding of the election and the further fact that the 1st, 2nd, 4th – 83rd Respondents were the body corporate and
officers that conducted the election and in the end returned the 3rd Respondent as the successful candidate. By averring the fact of his candidature in the 1st paragraph of the petition, his right to vote, to be voted for and returned or elected, the Appellant was saying that he had all that are required under the law to be such a candidate. The objectors even admitted all these facts when in paragraphs 1, 2 and 3 of their reply to the petition they averred as follows:-
“1. The Respondents admit paragraph 1 of the petition only to the extent that the Petitioner was a candidate in the election but deny all other averment contained therein and further put the Petitioner to the strictest proof thereof.
- The Respondents admit paragraph 2 of the petition only to the extent that the election was held on the 28th April, 2007 and that the 3rd Respondent was returned as Senator elect, Ogun Central Senatorial Constituency.
- The Respondents admits paragraphs 5, 6, 10 and 11”. (underlining Supplied for emphasis)
Given the foregoing admissions of the objectors in addition to the provisions of Section 153 of the 1999 Constitution and Section 35 of the Electoral Act, the tribunal should have invoked Section 151 of the Evidence Act to conclude that it was no longer open to the objectors to question not only the candidature of the Appellant but his being qualified to contest the election as well. See OPIGO Vs. OLUKWE (1997) 6 NWLR (Pt. 509) 428 and SOWEMIMO Vs. AWOBAJO (2003) 1 W.L.R.N.C. (Pt. 1) 93 at 108.
Beyond these admissions, the 1st, 2nd, 4th – 83rd Respondents neither joined issue as to the political party that sponsored the Petitioner nor averred in their reply that by virtue of the Petitioner’s failure to state the political party that sponsored him they will contend before trial that the petition was incompetent yet a valid objection on a point of law in respect of election petitions can only be raised as provided under Order 25 Rules 1, 2 and 3 of the Federal High Court rules which pursuant to Section 1 of the Electoral Act and paragraph 50 of the Act’s first schedule also regulate the tribunal’s procedure. Order 25 of the Federal High Court (Civil Procedure) Rules provides-
“25
Rule 1: No demurrer shall be allowed
2 (1) A party shall be entitled to raise by his pleading any point of law and any point so raised shall be disposed of by the judge who tries the cause at or after trial.
(2) A point of law so raised may by consent of the parties, or by order of the court or a judge in chambers, on the application of either party be set down for hearing and disposed of at anytime before the trial.
(3) If in the opinion of the court or a judge in chambers the decision of the point of law substantially disposes of the whole action, ground of defence, set-off, counter claim, or reply therein, the court or judge in chambers may there upon dismiss the action or make such other order therein as may be just”.
In considering the impact of Order 23 of the Lagos State High Court (Civil Procedure) Rules on a defendant’s right to raise an objection on the Plaintiffs locus standi which rules are similar to the rules applicable to the tribunal, in the instant case the Supreme Court in AJILOWURA Vs. DISU & ORS (2006) Vol. 10 MJSC 70 inspite of the Apex court’s conclusion that the Plainliff had made out his locus to sue in his claim held because of the intervention of Order 23 Rules 1,2 and 3 of the trial court’s adjectival rules, as follows:-
“Now, at that stage, the only way the Defendants/Appellants could challenge the capacity or locus of the Plaintiff to sue them would have been to file a statement of defence which will meet the averment in the statement of claim headlong and disclose her incompetence to file the suit. Although in determining the locus standi of a party, a careful perusal of the statement of claim will suffice, in a case where the opponent is challenging the capacity of a party to sue, i.e. the locus, as in this case, a statement of defence is necessary. I think even if it is not so provided in the rules of the High Court, common sense dictates that a statement of defence should be filed in order to assist the court in deciding the competence of the case before it for the consequence of striking out a suit may be have on a Plaintiff. See IMADE Vs. MILITARY ADMINISTRATOR OF EDO STATE (2001) 6 NWLR (Pt.709) 478. The objection raised is that of law, being one of jurisdiction. By virtue or Rule 1 of order 23 of the Lagos State High Court Civil Procedure Rules supra, demurrer has been abolished, and so the course open to the defendant would have been to file a statement of defence raising the objection as I have indicated above”. (underlining supplied for emphasis)
If follows from the foregoing that in the instant case the 1st, 2nd, 4th – 83rd Respondents’ objection on the Appellant’s locus standi to sue which was in breach of Order 25 that equally abolished demurrer in Rule 1 and entitled a defendant to raise his point of law in his pleading under Rule 2, was incapable of being considered by the tribunal. The objection not being initiated by due process has robbed the tribunal of its jurisdiction to consider and determine same. See SAUDI Vs. ABDULLAHI (1989) 4 NWLR (Pt.116) 387 and MADUKOLU Vs. NKEDILIM (1962) 2 SCNL 341.
Resultantly, Appellant’s locus standi to institute his petition still subsists, Again it must be stressed that the combined effect of Section 144(1) and paragraph 4(1)(b) is that once a Petitioner has averred the fact of his candidature in the very election he seeks to challenge by his petition, the law in its plain and unambiguous language says that he is entitled to present his petition. Having specified the right donated by Section 144(1) of the Electoral Act as required under paragraph 4(1)(b) of the first schedule to the Act, the Petitioner activates the tribunal’s jurisdiction to enquire into the merit or otherwise of his petition. The law does not ask for more than that.
This explains the rational behind Learned Senior counsel’s specific invitation that, in the determination of the sale issue in this appeal, we apply two previous decisions of this court in respect of similar facts and legislations which decisions the tribunal wrongly refused to exploit. Learned Senior Counsel had submitted that the tribunal was wrong when it departed from these binding decisions and instead applied the decision in EGOLUM Vs. OBASANJO which is on totally dissimilar facts and legislation. The two decisions Senior Counsel commended to us are NNAMANI Vs. NNAJI (1999) 7 NWLR (Pt.610) 313 At 329-330 and the recent and unreported decision of this division of the court delivered on 13-3-08 in Appeal No.CA/I/EP/GOV/10/2007, SENATOR IBIKUNLE AMUSU Vs. INEC 259 ORS. I cannot agree more with Learned Senior Counsel to the Appellant on this score.
It must always be appreciated that cases are authorities for what they decided. Earlier decisions only bind subsequent ones if they were in respect of the same or similar facts and legislation as those the courts are subsequently asked to adjudicate upon. Most certainly, EGOLUM Vs. OBASANJO (supra) is not a binding authority for the resolution of the controversy the lower tribunal contended with in the instant case. This court in both NNAMANI Vs. NNAJI (supra) and SENATOR IBIKUNLE AMUSU Vs. INEC & 259 ORS supra, had distinguished the EGOLUM’S case from the facts in the instant matter. The Petitioner in the EGOLUM’S case was never a candidate at the election in respect of which he presented his petition. The Appellant herein as demonstrated was “a candidate” in the election and had so pleaded in his petition. EGOLUM’S case cannot be the basis of the determination of the objection raised by the 1st, 2nd, 4th – 83rd Respondents against the Appellant. I so hold.
It is perhaps very significant to reproduce the provision of paragraph 49(1) and 2 to the first schedule to the Electoral Act at this stage of this judgment-
“49 (1) Noncompliance with any of the provisions of this schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deems fit and just.
(2)An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect”.
By the above, any valid application to set aside an election petition for being an irregularity or a nullity is allowed only when the application had been made timeously and the applicant had not taken any fresh step in the proceedings after his discovery of the defect.
In the instant case, even if the petition had been adjudged irregular and/or void, and it has not, by the combined effect of sub paragraphs (1) and (2) of paragraphs 49 of the first schedule to the Electoral Act the tribunal should have saved the petition. 1st, 2nd, 4th – 83rd Respondents in the instant case did not only enter unconditional appearance and file their reply to the supposedly defective petition, they also admitted the crucial paragraphs in the petition. They cannot be said to have acted timeously to justify the indulgence granted them by the tribunal. See ABUBAKAR Vs. INEC (2004) 11 NWLR (Pt. 854) 207 At 217, NGIGE Vs. OBI (2006) 14 NWLR (Pt. 999) 1 At 44 and YUSUF Vs. OBASAN.IO (2003) 15 NWLR (Pt. 843) 293 At 308.
It is for the foregoing that I resolve the lone issue in the appeal in favour of the Appellant and in the result find merit in the Appeal. The order made by the tribunal on 20th September 2007 striking out Appellant’s petition is hereby set aside, the petition is remitted back to the Ogun State Governorship and Legislative Houses Election Petition Tribunal for expeditious hearing and determination on the merit.
Appellant is entitled to a cumulative cost of the Appeal put at N40,000 naira, N25,000 against the 1st, 2nd, 4th – 83rd Respondents and N15,000 against the 3rd Respondent.
Other Citations: (2008)LCN/2937(CA)
