Olusola A. Oke V.independent National Electoral Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
This appeal is against the Ruling of the Election Petition Tribunal (per Hon. Justice C. O. Onyeabo (member), (hereafter referred to as the Tribunal), sitting in Abeokuta, Ogun State, delivered on the 30th day of October, 2007.
In the House of Assembly election, conducted by 1st, 2nd, 4th – 14th Respondents on the 14th April, 2007, held in Imeko – Afon Local Government Area of Ogun State, the 3rd Respondent was declared as having won in the said election and returned. The Appellant who was one of the candidates in the said election aggrieved by the declaration and return of the 3rd Respondent filed his petition before the Tribunal, dated 11/5/07 on the same day challenging the declaration and return of the 3rd Respondent.
The 1st, 2nd, 4th – 14th Respondents filed their joint Respondents’ Reply dated 13/8/07, on 15/8/07. The 3rd and 15th Respondents’ Reply dated 25/7/07 was filed on 25/7/07.
On 24th September, 2007 the 3rd and 15th Respondents filed a preliminary objection to challenge the validity of the petitioner’s petition, an order was sought striking out/dismissing the petition for want of jurisdiction. The preliminary objection was argued on the 5th of October, 2007, the Ruling of the Tribunal was delivered on the 30th day of October, 2007.
The 1st, 2nd, 4th – 14th Respondents in a motion on Notice dated 28/9/07 filed on the same day, also challenged the validity of the petition. The Appellant as petitioner was dissatisfied with the Ruling of 30th day of October, 2007 and filed this appeal against the Ruling, by the Notice of Appeal dated 9/11/07 filed on 20/11/07, at pages 243 – 249 of the record of appeal.
Three (3) issues were formulated by the appellant for the determination of this appeal, namely:-
“(i) Whether the 1st, 2nd, 4th – 14th Respondents’ objection dated 28/9/07, and the 3rd Respondent’s Motion on Notice dated 24/9/07, are competent and ought to have been heard and determined by the Lower Tribunal the way it did. (distilled from grounds 2 and 3).
(ii) Whether, in the circumstances of the Appellant’s petition, the Lower Tribunal was right to have held that the petition is incompetent on the ground of lack of ‘locus Standi’ on the part of the petitioner (distilled from grounds 1 and 5).
(iii) Whether the Lower Tribunal, in the circumstances of the petition, was right to have struck out the petition on the ground of “bad joinder” (distilled from Ground 4).
The 1st, 2nd, 4th – 14th Respondents did not file anything in response. The 3rd and 15th Respondents formulated three (3) issues for determination.
“(i) Whether (pursuant to paragraph 49(2) of the first schedule of the Electoral Act 2006) the Respondents objection was taken within reasonable time.
(ii) Whether the petitioner pleaded material facts in his petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same.
(iii) Whether the Tribunal properly struck out paragraphs 6, 13, 17, 20, 22 and 23 of the petition and the names of the 5th – 14th respondents.”
Incorporated into the 3rd and 15th Respondents amended brief of argument filed on 21/10/08, pursuant to the order of court dated 15th October, 2008, is the argument in support of the objection in the Motion on Notice dated 14/10/08 challenging the competence of the Appellant’s brief of argument and the record of proceedings before this court.
At this stage, it is not only necessary but important to dispose of the objection to the appeal first as raised by the 3rd and 15th Respondents before going into the Appeal proper if need be. This is so because it is the law that where there is an objection raised challenging the competence of the appeal, it must be determined first by the court before going into the merits of the appeal or otherwise. If the objection succeeds, it would put an end to the appeal. It is therefore tidier to dispense first with the objection. This would inform the court whether it can proceed with the main appeal or not. See Onyekwuluje v. Animashaun &. Anor (1996) 3 NWLR (Pt.439) page 637; (1996) 2 S.C.N.J. 24, Ikyernum v. Iorkumbor (2002) 11 NWLR(Pt. 777) 52, Nigerian Navy v. Garrick (2006) 4 NWLR(Pt.969) Page 69, and N.N.B.C. Plc v. Imonikhe (2002) 5 NWLR (Pt.760) Page 294.
In the 3rd and 15th Respondents’ amended brief of argument, it was submitted that on the 15th day of October, 2008, the 3rd and 15th Respondents filed a Motion on Notice dated 14/10/08 pursuant to paragraph 5 of the Court of Appeal Practice Directions No.2, 2007 also challenging the competence of the Appellant’s brief of argument and the record of proceedings before this court.
The applicants relied on all the paragraphs of the affidavit in support of the application. In paragraph 3 of the affidavit it was deposed that the records of appeal was served on the 3rd and 15th Respondents on the 5th day of March, 2008, and that the Appellant did not file his brief of argument to the appeal until 18th day of March, 2008, allegedly 3 days outside the days prescribed for filing appellant’s brief which rendered the brief of argument incompetent and liable to be struck out. Reliance was placed on the case of Auto Export v. Adebayo (2 002) 18 NWLR pt.799, S.C.S54 to the effect that failure to obtain leave for extension of time to appeal within the specified time or period is a substantial irregularity which was argued, is beyond a mere technicality. Also relied upon was the case of Akpabuyo L.G. v. Duke (2001) 7 NWLR, Pt.713, CA.557, which stressed on the fatality of non-compliance with rules of court. Learned counsel to 3rd and 15th Respondents urged this court to strike out the Appellant’s brief and dismiss the petition.
Secondly, in paragraph 9 of the supporting affidavit it was deposed to the effect that the record of proceedings sought to be relied on by the Appellant was not certified by the Tribunal Registrar and by the provisions of Order 8 Rule 9 of the Court of Appeal Rules 2007. It was argued that the record of appeal sought to be relied upon by the appellant was not duly certified by the Registrar, therefore that any purported supplementary record not having been certified has no probative value, is inadmissible and cannot be relied upon. It was submitted that the records of appeal served an 2nd and 3rd respondents and that transmitted to this court were not certified by the Registrar of the Tribunal. Reference was made to S.111 of the Evidence Act as to what a certificate written at the foot of a public document should contain, that is, date, name of officer, the officer’s official title, and sealed where such officer is authorized to use a seal. The requirement for certification was enumerated as laid dawn in Ndayako v. Mohammed (2007) 32 WRN, Page 176 at 181 ratio 2 and 3 and in line with S.111 of the Evidence Act. Also cited and relied upon is the case of Oba Aruna Okiki II & 7 ors v. Jagun & 4 ors (2000) 5 NWLR, Pt.655 Page 19.
It was argued that the record of Appeal is a public document and for it to be authentic or relied on by a court of competent jurisdiction it must be certified and that where the record of Appeal is not certified, the presumption of regularity will not be ascribed to it. It was further submitted that the registrar’s signature at the front lower page of the record of proceedings without his seal and inscription does not amount to certification and it does not amount to compliance with order 8 rule 9 of the Court of Appeal Rules with reference to Sections 111(1), 109 (a) (ii) and 113 (1) of the Evidence Act. It was argued that failure to comply with the above provisions of the Evidence Act, rendered the document sought to be relied on inadmissible and that this court cannot decide the appeal without a record of proceedings, that it would rob the court of the jurisdiction to entertain the appeal.
Learned counsel for the 3rd and 15th Respondents urged us to strike out this appeal.
The objection raised by the 3rd and 15th Respondents in their joint amended brief of argument was responded to in the amended appellant’s reply brief dated 30/10/08 filed on the same day. It was submitted on behalf of the appellant in respect of the first ground of the objection that nowhere in the body of the motion or in any part of the eleven (11) paragraph supporting affidavit was any specific date given as to the date of service of record of proceedings on the Appellant that by so doing the 3rd and 15th Respondents are by their objection inviting this court to speculate as to whether the Appellant’s brief was filed out of time and relied on the case of Iwuoha vs. NIPOST(2003) 4 S.C. (pt.2)37. We were urged to dismiss this ground of objection.
In respect of the second ground of the objection, it was submitted that although Order 8, Rule 9 of the 2007 Rules of this court requires that record or additional record of appeal be certified, such requirement is limited to compilation done by a party to an appeal pursuant to the provisions of Order 8, Rule 4. The learned counsel for the Appellant argued that the provisions of Order 8, Rule 9 is not applicable in the present case where the compilation was done by the Registrar of the Lower Tribunal and the records transmitted directly to the Registry of this court by the Registrar of the Tribunal, as shown by the records. The learned counsel urged us to dismiss the second ground of objection as it lacks merit.
In his alternative argument, in which the case of Ndayako v. Mohammed (2006) (Supra) was relied upon, learned counsel for the appellant submitted that since some of the records were certified, which shows substantial compliance with the requirement of certification, omissions by the Lower Tribunal Registry to certify some of the documents should not be visited on the parties to the election petition.
In respect of the first ground of objection dated 14/10/08 raised by the 3rd and 15th Respondents as rightly argued by the learned counsel, for the Appellant, there is a duty on the respondents raising the objection to clearly state the date of service on the Appellant of the record of proceeding, then this court would then be in a position to determine whether or not the Appellant’s brief was filed out of time. It was not shown in the supporting affidavit to the motion when the appellant was served with the record of proceedings, neither was there anything to show when the 3rd and 15th respondents were served with the records. This court cannot speculate as to whether or not the Appellant’s brief was filed out of time. We cannot peruse the entire records to confirm such objection or statement. The first ground of objection being speculative fails and is hereby dismissed.
In respect of the second ground of objection, Order 8 Rule 9 of the 2007 Rules of this court requires records or additional record of appeal (whatever the case may be) to be certified. Such requirement is limited to a compilation done by a party to an appeal pursuant to the provisions of Order 8, Rule 4. It does not apply where the record is from the Registry.
Order 8 of the Court of Appeal Rules, 2007 provides for the compilation and transmission of Records of Appeal to this Court.
“Order 8 –
- The Registrar of the court below shall within sixty days after the filing of a notice of appeal compile and transmit the record of appeal to the court.
- Where at the expiration of 60 days after the filing of the Notice of Appeal the registrar has failed and or neglected to compile and transmit the records of appeal in accordance with the provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect.
- Every record or additional record of appeal compiled by a party to an appeal must be certified by the Registrar of the lower court. Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the court below shall certify as correct each copy of the record transmitted in accordance with these Rules. (underlining for emphasis)
In agreeing with the submissions of the learned appellant’s counsel, from the provisions of Order 8 Rule 9 of the Rules of this court the requirement of certification need only be strictly complied with where the record or additional record of appeal is compiled by a party to an appeal. See the recent decision of this court in Yunus Akintunde & 14 ors vs. I.N.E.C. & ors. CA/I/51/08 {unreported}. The above rule is not applicable in the present case where the compilation was done by the Lower Tribunal Registrar, even though the learned counsel for the 3rd and 15th Respondents argued strongly to the contrary.
The learned counsel for the 3rd and 15th Respondents in their amended brief of argument rightly stated what a certified true copy of a public document should contain and placed reliance on S.111 of the Evidence Act, and as enumerated in the case of Ndayako v. Mohammed (2007) 32 WRN Page 176, that is;
(a) The legal fees must be paid where payable;
(b) There must be a certificate at the foot of such a document that it is a certified copy of the original or part thereof;
(c) It must be dated;
(d) It must be subscribed by the officers issuing the document with the name and title of office;
(e) It must be sealed.
See also the case of Oba Aruna Okiki II and 7 ors v. Jagun & 4 ors (2000) 5 NWLR, Pt.6SS Page 19. I agree with the learned respondents’ counsel that in line with the provisions of S.109 (a) (ii) and S.113 (1) of the Evidence Act, the record of Appeal being a public document must be certified for such record to be considered authentic or relied upon by a court of competent jurisdiction. It is also true that the registrar’s signature at the foot of the records without his seal and inscription does not amount to certification and does not therefore comply with Order 8 Rule 9 of our Rules of court, 2007. It was argued by the learned respondents’ counsel that such non compliance rendered the records sought to be relied upon inadmissible and without the record of proceedings this court has no jurisdiction to entertain the appeal, as a result we were urged to strike out the appeal.
By the provisions of Order 8 Rule 9 it is the duty of the lower court’s Registrar to compile and transmit records of appeal to this court but, where he fails to do so within the stipulated period, Rule 4 of Order 8 comes to play where the Appellant is then required to compile and transmit the records. By virtue of Order 8 Rule 9 any additional records of appeal compiled by the Appellant or Respondent must be certified as being correct by the Registrar of the lower court. Although under the 2007 Rules of this court, certification by the Lower Court’s Registrar of records he(sic) compiled is no longer a requirement as in the 2002 Rules of this court, in agreement with the learned counsel for the 3rd and 15th Respondents and the cited authorities relied on, the provisions of S.111 of the Evidence Act, SS.109 (a) (ii) and 113 referred to make certification mandatory being public documents. Can the failure of the Registrar to certify all the record of Appeal be visited on the Appellants? It was agreed by both parties that some of the records were certified while some were not. The omission by the Registrar of the Lower Tribunal to certify all the records cannot be visited on the appellant, if it is done, the appellant who is aggrieved by the decision of the lower Tribunal and who has a constitutional right to challenge same cannot do so, he would be prematurely and unjustly shut out by the mistake or inadvertence of the Tribunal Registrar, which boils down to denial of the same justice he is seeking by this appeal. The non certification was a wrong or omission committed by the Tribunal Registrar, the appellant had no hand in it. See Engineering Enterprise of Major Contractor of Nigeria vs. Attorney General of Kaduna State (1987) 2 NWLR (Pt.57) 381 and F.B.N. vs. May Medical Clinics & D.C. Ltd (2006) 4 NWLR (pt.971) 442.
I am of the opinion therefore that striking out the appeal for non compliance with the provisions of Order 8 Rule 9 and S.112 of the Evidence Act would be unjust to the Appellant. The second ground also fails. The application has no merit and same is hereby dismissed. It is hereby ordered that the Registrar of the Tribunal is to certify the records of appeal within one month from today, if need be. The preliminary objection having been disposed of, we will now consider the issues raised for determination in this appeal.
The appellant’s three (3) issues were earlier reproduced in this judgment. The learned counsel for the Appellant A. A. Yesufa Esq. in his brief of argument in respect of his first issue submitted that the objections of the Respondents were improper and incompetent, as they amount to demurrer proceedings, and that the Tribunal ought to have struck out same ‘in limine’ and cited the cases of Adesanya v. Olayemi (1999) 2 NWLR (pt.592) 558, 566 (A-B).. Watanmal (Singapore) vs. Lizolofin & Co. (1998) 1 NWLR CPt.533) 311. 319 (G-H) and the case of Disu vs. Ajilowura (2006) 14 NWLR (pt.1000) 783, 802 (A-F) and 804 (E).
It was further submitted that by virtue of S. 49 (2) of the first schedule to the Electoral Act, 2006, the objections of the Respondents to the hearing of the petition ought to have been filed within a reasonable time after the petition was served on them and before taking any further steps in the proceedings after such service. Reference was made to paragraphs 1.3 to 1.8 of the appellant’s brief of argument where various steps taken by the Respondents were reviewed. After the Petition was served on all the Respondents, they all filed their respective Replies before taking the various steps and subsequently filed their objections on 24/9/07 and 28/9/07 respectively.
It was argued that although the Respondents filed the objections to be taken at pre-hearing stage, the Tribunal ought to have waited until after the hearing, as directed in the decision of this court in Appeal NO.CA/A/EPT/03/07: Alhaji Atiku Abubakar &. 2 ors VS. Alhaji Umar Musa Yar’Adua, delivered on 22/9/07. It was submitted that the Respondents made their objection seem jurisdictional to delay the hearing of the substantive suit. The case of Okoro v. Egbuoh (2006) 5 NWLR (Pt.1001) 1. 23 G-H was cited and relied upon. Also the case of Buhari v. Yusuf (2003) 14 NWLR (841) 446, 505 (E). We were urged to hold that the Tribunal was wrong to have entertained the objection at the interlocutory stage.
The 1st, 2nd, 4th – 14th Respondents did not file anything in response as earlier said in this judgment. The 3m and 15th Respondents in response to the appellant’s first issue formulated their issue similar to that of the respondents but differently couched, which was earlier reproduced. The learned counsel for the 3rd and 15th respondents in their brief of argument, argued that the Tribunal was right to have taken first the objection challenging the petitioner’s locus standi and thus its jurisdiction, learned counsel cited and relied on the following cases: Waziri v. Danboyi (1999) 4 NWLR Pt.598 Page 239 at 246, Tambco Leather Works v. Abbey (1998) 12 NWLR P.548 at 550, Onyekwuluje v. Animasaun (1996) 3 NWLR (Pt.439) 673 at 644. ANPP v. R.O.A.S.S.D.(2005) 6 NWLRP.149 at 170-171 LT and Ogoja LGA v. Offoboche(1996J 7 NWLRP.458. It was argued that paragraph 49 (5) of the first schedule to the Electoral Act, 2006 imposed on the Tribunal a duty to “hear and determine (the objection) before any further steps in the proceedings”. The Appellant had argued that pursuant to paragraph 49 (2) of the first schedule to the Electoral Act, 2006, that the preliminary objection ought not to be allowed because it was not taken within reasonable time and that the Respondent stook further steps in the petition after becoming aware of the irregularity.
It was submitted by the 3rd and 15th Respondents’ counsel that the respondents will not be prevented from challenging the petition pursuant to paragraph 49 (2) unless hearing of the petition has commenced, learned counsel referred to the case of Bichi v. Haladu (2003) 14 NWLR (pt.841). P.624 where the two crucial issues arising from the provisions were considered.
(i) What is a reasonable time for bringing or raising the objection;
(ii) What amounts to taking of fresh steps in the proceedings.
On reliance on the case of Buhari v. Obasanjo (2003) 17 NWLR (pt.850) page.845, the learned counsel submitted that the respondents are at liberty to take an application challenging the competence of a petition at any time before hearing of the petition or trial commences. It was further argued that paragraph 49 (2) does not apply to the issue of jurisdiction, and that the preliminary objection was validly heard and determined by the Tribunal.
By virtue of the provisions of paragraph 50 of the first schedule to the Electoral Act, 2006, which provides that the practice and procedure of the Tribunal or 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.
Paragraph 50 reads:
“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 25, Rule 1, 2 and 3 of the Federal High Court (civil procedure Rules 2000 provides:
“Order 25 –
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 the 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 any time before the time.
By the above provisions of the Electoral Act the respondents ought to have complied with the provisions of Order 25, Rule 2 of the Federal High Court (civil procedure) Rules, 2000. This is applicable in election petitions where the Respondents intend to file applications raising points of law to challenge the competence of the petition. In J. P. VS. I.N.E.C. (2004) 12 NWLR (pt.886) 140, it was reiterated that Order 25 Rule 2 of the Federal High Court Rules, made it possible for a party to raise by his pleading any point of law, and any point so raised to be disposed of by the judge or Tribunal who tries the cause at or after the trial. Such point was not raised in the 3rd and 15th Respondents’ Replies to the Petition, which should have included the grounds upon which the objections were based.
I am in agreement with the learned counsel to the appellant that the objection of the Respondents was improper and incompetent and should have been struck out by the Tribunal, having been raised in a form contrary to Order 25 of the Federal High Court Rules. See an earlier decision of this court in Olarenwaju Tejuosho VS. I.N.E.C. &. ors, CA/I/EPT/NASEN/5/2008 delivered on 27/10/08, unreported, similar to this appeal, Ajilowura v. Disu &. ors (20GG) Vol.10 MJSC 70; 14 NWLR (pt. 1000) 783. 802 A-F and 804 E also cited by the learned appellant’s counsel, Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 and Madukolu VS. Nkemdilim (1962) 2 SCNL 341. In Disu’s case it was decided that an objection outside the applicant’s statement of defence is incompetent as in the present case, by virtue of Order 25.
The respondents not having raised their objection in their reply/pleading under Rule 2, same should not have been considered by the tribunal. The objection not having been properly initiated robbed the tribunal of the power to entertain and determine same and I so hold. The appellant also raised objection to the hearing of the Respondents objection in that it contravened the provisions of Paragraph 49 (2) and (5) of the first schedule to the Electoral Act, 2006 and ought not to have been taken at that stage. The Tribunal overruled the appellant’s objection and held that since the application was filed before the trial of the petition they had the backing of the provisions of paragraph 6 (1) of the first schedule to the Electoral Act, 2006.
Paragraph 49 (2) and (5) provide:
“49 –
(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.
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed”,
The next question is: Was the objection of the Respondents to the hearing of the Appellant’s Petition filed within a reasonable time after the Petition was served on them and before taking further steps after the service of the petition on them?
From the printed records it is clear that when the Petition was served on the respondents, they filed their respective replies, all the steps itemized in paragraphs 1.3 to 1.8 were taken upon receipt of the petition, the 3rd and 15th Respondents became aware of the alleged defects in the petition. The 3rd and 15th Respondents’ Reply dated 25/7/07 was filed on 25/7/07, they filed FORM TF 008, participated in the pre-hearing proceedings ordered by the lower tribunal, participated fully in the proceedings leading up to the tribunal’s order for the inspection of electoral documents in the 1st Respondent’s custody; they participated in the conduct of the inspection, the respondents participated in the pre-hearing proceedings in compliance with S.4 of the pre-hearing scheduling Order of the Lower Tribunal and formulated issues for determination at the hearing of the petition and, filed and argued a Motion on Notice dated 1/8/07, brought pursuant to the provisions of paragraph 4 (1) and 4 (6) of the first schedule to the Electoral Act, 2006, in which the Tribunal in its ruling delivered on 14/8/07 refused the prayer to strike out the petition on 14/8/07.
It was after all the various steps had been taken that the 3rd and 15th Respondents filed their objection on 24/9/07, which led to the decision now on appeal.
Having failed to react to the alleged defects in their joint reply to the petition, and having taken the various steps enumerated above after becoming aware of the purported defects, the Respondents are deemed to have waived their rights to raise the objection at the stage they did. See Abubakar vs. I.N.E.C. (2004) 11 NWLR (pt.854) P.207, Ngige vs. Obi (2006) 14 NWLR (pt.9991 1. 44, Ezeke v. Dede (1999) 5 NWLR (pt,601) 80 & 92 A – D and Yusuf vs. Obasanjo (2003) 15, NWLR (pt.843) Page 293, also cited by appellant’s counsel. I am of the view that the objection ought not to have been taken at an interlocutory stage but at the substantive trial. Also see Alhaji Atiku Abubakar & 2 ors v, Alhaji Umar Musa Yar’Adua, delivered on 22/9/2007.
The learned Tribunal reasoned that the objection touched on the jurisdictional powers of the Tribunal to hear the petition, therefore that it had to be determined first before going into the substantive matter if need be, But, the position of the law is that the courts are enjoined to first resolve the issue of jurisdiction in its judgment first, after the hearing of the substantive matter. See Onyekwuluje vs. Animasaun & Anor (supra) and Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251.
I am of the considered view that in line with the provisions of paragraph 49 (5) of the first schedule to the -Electoral Act, 2006, the Respondents’ objection would have been timeously raised and heard by the Tribunal had it been brought immediately the defect was noticed on the face of the petition once the petition was served on the Respondents.
On the other hand the case of Bichi vs. Haladu {supra} relied upon by the learned counsel to the 3rd and 15th Respondents and the Tribunal is not applicable in the present case, the above case could be distinguished in which it was held that filing of pleadings alone and entry of unconditional appearance did not amount to taking fresh steps in the proceedings.
The objection of the 3rd and 15th Respondents at that interlocutory stage was improper and incompetent and should have been struck out by the Tribunal and I so hold.
Appellant’s counsel submitted that there was no dispute that, by paragraphs 1 and 2 (page 13 of the records) of the petition dated 11/5/07, the petitioner pleaded he was a candidate at the 14/4/07 elections for the Imeko-Afon constituency of Ogun State, into the Ogun State House of Assembly and that he scored 7,335 votes. The 3rd and 15th Respondents admitted the averments in paragraphs 1 and 2 of the petition, in their joint reply, in paragraph 2 (page 35 of the records).
It was submitted that the Tribunal was wrong to have held in its ruling of 30/10/07 that Paragraph 4 (1) of the 1st schedule to the Electoral Act, 2006 must be read with the provisions of S.144 (1) of the Electoral Act, to decide the jurisdictional issue of ‘locus standi’. Also that S.106 of the 1999 constitution ought not to have been considered since the Electoral Act did not specifically require it, and that a constitutional provision ought not to be imported into an election petition, and relied on the case of Obasanjo v. Yusuf (2004) 9 NWLR (Pt.877) 144, 222, and Adebusuyi vs. Oduyoye (2004) 1 NWLR (pt.854) 406 at 428, to the effect that a person who has been nominated by a political party to contest an election but was disallowed to contest, has the right to present an election petition pursuant to the provisions of S.145 (1) (d) of the Electoral Act, 2006.
It was submitted that the Appellant whose Petition shows that he not only was a candidate, but actually contested in the election and votes were recorded in his favour cannot rightly be said not to have an interest in the Petition when, he is challenging the return of the 3rd Respondent as the duly elected member of the House of Assembly for the Imeko-Afon Constituency. Further that the Tribunal was wrong to have expressly stated in its Ruling that it would not presume the requirement in S.106 (d). It was submitted that the Tribunal acted contrary to the decision in P.P.A. vs Saraki (2007) 17 NWLR (Pt.1064) 453. we were urged to hold that the appellant not only had the necessary ‘locus standi’ to commence the petition, that the petition is competent and urged us to resolve the appellant’s second issue in his favour.
In response to the appellant’s second issue the 3rd and 15th Respondents formulated their second issue more or less the same as that of the appellant’s earlier reproduced in this judgment that is, the appellant’s ‘locus standi’ to institute the petition by his pleadings. The learned counsel for the 3rd and 15th -Respondents submitted that the appellant’s right to present a petition is established by compliance with the provisions of S.106 of the constitution and S.144 of the Electoral Act, 2006. It was argued that the appellant’s pleading did not disclose any enforceable right in an election petition. Further that to determine the appellant’s locus that paragraph 4 (1) of the 1st schedule to the Electoral Act, 2006 must be read with 5.106 of the constitution; otherwise the petition would be incompetent. It was submitted that were as in this case the appellant fails to specify his right to present the petition by failing to state his political party he has no locus to present a competent petition, the case of Egolum v. Obasanjo (1999) 7 NWLR P.355. was relied upon. He submitted that the Appellant’s qualification should have been his starting point before his right to present a petition could be established, and must be his party’s candidate for the election and must have contested the election on the party’s platform.
Learned counsel urged us to hold that the Appellant’s petition was rightly dismissed. He argued that it is not enough for the petitioner to merely plead that “he was a candidate at the election”, and that the cases relied upon by the appellant are inapplicable authorities, these are: UBA v. Ukachukwu (2004) 10 NWLR (pt.881) P.224, Waziri v. Danboyi (1999) 4 NWLR Page 239, and P.P.A. v. Saraki (2007) 17 NWLR (Pt.1064) P.453.
On the Issue of locus standi, to present an election petition S.144(1) of the Electoral Act, 2006 is clear and unambiguous on this, it provides:
“144 (1)-
(1) An election petition may be presented by one or more of the following persons:
(a) A candidate in an election;
(b) A political party which participated in the election”.
From the above provision and a legion of decided authorities it is clear that either a candidate at an election or a political party which participated in an election or both may present an election petition. See Uba vs. Ukachukwu (2004) 10 NWLR (Pt.8811 224, Waziri v. Danboyi (1999) 4 NWLR (pt.598) 239, Rimi v. INEC (2004) All FWLR (Pt.210) 1312, Asinya VS. INEC (2005) 16 NWLR (pt.950) 157. Okonkwov. Ngige (2006) 8 NWLR(pt.981) P.119, Buhari v. INEC and 5 ors in CA[EPTI2/07 and Ibikunle Amosu v. INEC &. 259 ors (unreported) in CA/I/EPT/Gov./10/2007 delivered on 13/3/08.
S.144 (1) must not be read in isolation, but with the provisions of S.145 (1) (d) of the Electoral Act, to the effect that even a validly nominated candidate by a political party to contest in an election but, unlawfully excluded, is a “candidate” under S.144 (1) (a) and has the ‘locus standi’ to present an election petition, talk less the appellant who by his pleadings, in paragraphs1 and 2 of his petition, admitted by the Respondents in paragraph 2 of their joint reply that he participated in the election. See P.P.A. v. Saraki (Supra):
“145 (1) – An election may be questioned on any of the following grounds,
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
I am in agreement with the submission of the learned appellant’s counsel that the appellant having participated in the election is presumed to have satisfied and met the qualification as required by provisions of S.106 of the 1999 constitution. A person who actually participated in the election is presumed to have qualified to contest, and therefore wrong for the Tribunal to have held that the Appellant was bound to have stated the qualifications to contest as stated in S.106 of the constitution.
S.106 deals squarely with the qualification of a person to contest an election not the qualification to present a petition. In Amosun’s case (Supra) at Page 21 (lines 9 – 11) J. I. Okaro, JCA held,
“There should be no confusion between the statutory provisions relating to the presentation of a petition and the qualification of a person to contest.”
It is the law that once a “candidate”, or a petitioner shows he was a candidate, this alone grants him the locus standi to challenge the election, and the Tribunal has the jurisdiction to hear same. In P.P.A. v. Saraki (Supra) an excluded candidate was held to have the ‘locus standi’ to challenge the election, in the present case the petitioner not only participated in the election, he had scores accredited to him, and stated so in his petition. The case of Egolum v. Obasanjo (Supra} relied upon by the 13th and 15th Respondents’ counsel does not apply in that in the above case, the petitioner was not a candidate in the election and did not state the basis on which he claimed the right to present a petition.
The apex court has interpreted “locus standi” to simply mean “interest in a suit”, the question in the present case is: Does the Appellant have interest in the petition filed challenging the election complained about? I would answer in the affirmative and hold that it was wrong for the Tribunal to have held that the petitioner had no locus standi to have filed the petition. See Inakoju v. Adeleke (2007) All FWLR pt.353, 3, 96-97. The Appellant as petitioner clearly challenged the return of the 3rd Respondent as having been duly elected in the election of 14/4/07.
I resolve the appellant’s issue two in favour of the appellant.
In the appellant’s third issue, it was submitted that the issue of joinder of parties is not a jurisdictional issue and that such issue should be left till trial. The case of Alhaji Atiku Abubakar & 2 ors vs. Alhaji Musa Yar’Adua in CA/A/EPT/03/07 delivered on 22/8/07 was relied upon.
It was argued that the provisions of S.144 (2) of the Electoral Act, 2006 requires the joinder of a Returning officer “if the Petitioner complains of the conduct” of such a Returning officer and that there is no duty on the Petitioner to have joined the 5th to the 14th Respondents. That the Respondents did not show that the Petition contained allegations against the Returning officer, to warrant their joinder as Respondents, to the Petition. See Nwankwo & ors vs. Yar’Adua, CA/A/EPT/6/07 of 7/9/2007.
It was submitted that the 2nd and 4th Respondents were sued in their official names, and there was no duty on the Petitioner to state in the petition that the 2nd and 4th Respondents are agents of the 1st Respondent. It was argued further that the Tribunal having earlier struck out the 5th to the 14th Respondents, there was no longer the need to apply S.144 (2) of the Electoral Act, 2006 or the proviso thereto, when the Tribunal had directed the striking out of paragraphs 6, 13, 17, 20, 22 and 23 (Pages 233, lines 19 – 22 of the records).
In response to the appellant’s third issue which was similar to the third issue of the 3rd and 15th Respondents’ it was submitted that it would not be sufficient to simply sue INEC as a party to an election petition. It was argued that presiding officers and electoral officers are creations of statute, who are under the Electoral Act responsible for their actions, that it is for this reason that they are statutory respondents pursuant to S.144 (2) of the Electoral Act. On reliance on the case of Nwankwo v. Yar’Adua, CA/A/EPT/6/07 of 3/9/07 (Supra), also relied on by the learned appellant’s counsel. It was submitted that the Tribunal acted properly in striking out the paragraphs that the respondents complained of.
S.144 (2) of the Electoral Act provides-
“144-
(2) The person whose election is complained of, is in this Act, referred to as the Respondent, but if the petitioner complains of the conduct of an Electoral Officer, a presiding officer, a Returning officer or any other person who took part in the conduct of an election. Such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to void the petition if the commission is made a party.”
With the above provision I am in agreement with the argument of the learned appellant’s counsel that the issue of joinder of parties is not a jurisdictional issue, such issue should have been left for the trial stage for the Tribunal to be able to determine through, evidence alongside the pleadings to determine the role played by the Returning officers and if there are complaints against such Returning officers, this would determine whether for instance the 5th to the 14th Respondents should have been joined or not.
The Respondents would have to show that the Petitioner had allegations against the Returning officers which would necessitate their joinder as Respondents to the petition.
On the other hand, since the 1st Respondent (INEC) is a party there was no need to have joined the 5th – 14th Respondents, as their non-joinder would not render the petition incompetent, doing so would only be superfluous, since the Returning officers are presumed in law to have been joined as Respondents, since 1st Respondent has been made a party. See Ugwu v. Ararume SC/63/07 delivered on 8/6/07.
The Tribunal having earlier struck out the 5th – 14th Respondents, should not have gone ahead to apply 5.144 (2) or the proviso, when the Tribunal had also earlier struck out paragraphs 6, 13, 17, 20, 22 and 23 (Page 233 lines 19 – 22 of the records).
I am of the opinion that it was improper for the Tribunal to have struck out some of the paragraphs of the petition as well as the names of 5th – 14th Respondents at that stage for “bad joinder” and the holding that the petition is incompetent. The third issue is resolved in favour of the Appellant.
In the final analysis, I hold that this appeal has merit and succeeds. The Ruling of the Tribunal of 30/10/07 striking out the petition is hereby set aside. Instead, the Petition is remitted back to the Ogun State Governorship and Legislative Houses Election Petition Tribunal for speedy determination on its merits, bearing in mind that the election being challenged took place more than a year ago.
I award costs of N20,000.00 against each set of Respondents.
Other Citations: (2008)LCN/3010(CA)
