Onoja Sa’id Emeje V. Ihiabe Abdul Positive & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
OYEBISI F. OMOLEYE, J.C.A.
This is an appeal against the ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Lokoja delivered on 19/7/07.
The brief facts of this case are that the Appellant a candidate of PDP and the 1st Respondent a candidate of the ANPP both contested for the House of Representative seat for Dekina/Bassa Federal Constituency of Kogi State at the 21/4/2007 general elections. The 1st Respondent was declared as the winner of the said election by the 2nd to 4th Respondents.
By a petition dated and filed on 22/5/2007, the Appellant sought to challenge the election. In the petition, the Appellant prayed the lower Tribunal to nullify the election on the ground that the election was invalid having been allegedly riduled by corrupt practices and consequently I the 1st Respondent was not elected by majority of lawful votes cast at the election. ,
In response to the Appellant’s petition, the 1st Respondent filed a Conditional Memorandum of Appearance and his reply to the petition on 18/6/2007. The 1st Respondent also Filed a Notice of Preliminary Objection challenging the competence of the petition on the grounds that:
(i) The Appellant’s petition was statute barred having been filed outside the statutory period of thirty (30) days.
(ii) The Appellant failed to include the scores of the candidates who participated in the election.
(iii) The Appellant failed to include his address for service.
After hearing counsel for both parties, the lower Tribunal upheld the preliminary objection and accordingly dismissed the Appellant’s petition.
Dissatisfied with the ruling of the lower Tribunal on the preliminary objection, the Appellant filed this Appeal vide the Notice of Appeal dated 9/8/07. The Notice of Appeal containing four (4) Grounds of Appeal is at pages 338 to 340 of the record. The four grounds of appeal with their particulars are verbatim as follows:
“GROUND 1.
The Tribunal erred in law when it ruled that the Petitioner’s action was statute barred when it is evident that the tribunal registry only opened on the 23rd of April 2007.
PARTICULARS OR ERROR.
(a) The tribunal’s registry having formally opened and commenced operations on the 23rd of April 2007, the Appellant’s petition could not be said to be statute barred, a (sic) he could not have been expected to file his petition before the 23rd of April 2007.
GROUND 2.
The Honourable Tribunal misdirected itself in law when it resolved the conflicting affidavit of Ahmed Ibrahim without calling oral evidence.
PARTICULARS OF ERROR.
(a) No oral evidence was called to resolve the evident conflict in the two affidavits alleged to have been deposed to by Ahmed Ibrahim.
GROUND 3.
The Tribunal erred in law when it ruled that the non-indication of the scores of the candidates was fatal to the appellant’s case, when there is evidence showing that application was made to – the Independent Electoral Commission(INEC) for same.
PARTICULARS OF ERROR.
(a) The Electoral Act, in the circumstances of this case, empowers the tribunal to call for such further particulars that may be necessary in arriving at the justice of the case and this it failed to do.
GROUND 4.
The Tribunal erred in law when it proceeded to hear the Respondent’s application without pre-hearing conference.
PARTICULARS OR ERROR.
(a) Contrary to the clear provisions of the relevant regimes (sic) the tribunal failed to hold a pre hearing conference before the application forming the basis of its ruling called in question.”
In line with the Practice Direction No.2, 2007 made pursuant to the relevant rules of this Court, parties filed and exchanged their briefs of argument.
At the hearing of this Appeal on 22/1/08, the learned counsel for the Appellant, Mr. Chris Ewere Onwugbonu adopted and relied on the Appellant’s brief of argument filed on 27/8/07. In it, the Appellant’s counsel identified three (3) issues for the determination of this Appeal.
These are:
“(1) Whether the petitioner’s action was in the circumstances of this case statute barred?
(2) Whether the circumstances of this case did not warrant the calling of oral evidence in resolving the conflicting evidence of Ahmed Ibrahim?
(3) Whether the non inclusion of the scores of the candidates was fatal to the petitioner’s action?”
He prayed this Court to allow this Appeal, set aside the ruling of the lower Tribunal and order that the petition of the Appellant be heard on the merit by the lower Tribunal.
In response, Mr. Osmond Onoja, learned counsel for the 1st Respondent adopted and relied on the 1st Respondent’s brief of argument filed on 3/9/07. Therein, learned counsel for the 1st Respondent formulated a sole issue for the determination of this Appeal. This is:
“Whether the Lower Tribunal was right in holding that the appellant’s petition was fundamentally defective on two grounds.”
He laid emphasis on the trite law that a petition challenging an election must be filed within thirty (30) days of the declaration of results in respect thereto and not when the registry of the Tribunal opens for business. In the instant case, the results of the election under consideration were declared on 21/5/07. By the provisions of Section 141 of the Electoral Act, 2006, the Appellant’s petition should have been filed within thirty (30) days from that date. This being a condition precedent, it must be mandatorily complied with to vest jurisdiction on the lower Tribunal. He submitted that the Appellant did not fulfil the condition. He urged this Court to uphold the ruling, wherein the lower Tribunal rightly declined jurisdiction by dismissing the Appellant’s petition. He also consequently urged this Court to dismiss this appeal as lacking in merit.
The learned counsel for the 2nd – 4th Respondents, Mr. O. O. Uzzi also adopted and relied on the 2nd – 4th Respondents’ brief of argument filed on 4/9/07. In it, two (2) issues were identified for the resolution of this Appeal. They read thus:
“(1) Whether the petition was filed out of time and therefore statute barred
(2) Whether failure of the Appellant to State the scores of the candidates in the petition was fatal.”
Learned counsel emphasized that the Appellant’s petition was filed at the lower Tribunal out of time and consequently statute barred. Also, the Appellant’s failure to state the scores of candidates was fatal to his petition. Accordingly, the lower Tribunal correctly and unassailably dismissed the Appellant’s petition. He urged this Court to uphold the ruling of the lower Tribunal and dismiss this Appeal as lacking in merit.
I find it convenient to and will adopt the three issues formulated by the Appellant’s learned counsel in his brief of argument. I will however take issues one and’ two together because they are contiguous.
ISSUES ONE AND TWO
“Whether the petitioner’s action was in the circumstances of this case statute barred”
“Whether the circumstances of this case did not warrant the calling of oral evidence in resolving the conflicting evidence of Ahmed Ibrahim?”
Learned counsel for the Appellant conceded that by the provisions of Section 141 of the Electoral Act, 2006, an election petition in pursuance of the Act must be filed within thirty days from the date the results of the election were declared. It was his contention however that, in the present case, the results under consideration were declared on 22/4/07. In support of the contention of the learned counsel for the Appellant, is the alleged affidavit of the returning officer for Dekina/Bassa Federal Constituency, Mr. Ibrahim Ahmed that the said results were declared on 22/4/07. This is contained in pages 294 to 295 of the record. Also, there was the news bulleting of Kogi State radio station of 23/4/07 to the effect that the results of election were declared on 22/4/07. Furthermore, the Registry of the Election Petition Tribunal opened to the public on 22/5/07. Hence, time of filing processes began running from that day; and it was impossible for the Appellant to file his petition earlier than that time.
According to the learned counsel, the affidavit of Ibrahim Ahmed was retracted. The retraction is contained in pages 309 to 310. He referred to the retraction as a material contradiction which the lower Tribunal ought to have resolved by ordering for oral evidence.
Replying, the learned counsel for the 1st Respondent canvassed that in determining the date an election result is declared, the most important document to rely on is form EC8 E11. In the instant case, the said form EC8 E11 was attached to the petition of the Appellant as Exhibit “A”. The date clearly reflected on Exhibit “A” is 21/4/07 as the date the election results in question were declared. By the provisions of Section 141 of the Electoral Act, 2006, an election petition shall be presented within thirty (30) days from the date the results of the election are declared. On the issue of when time begins to run for the filing of an election petition, it is trite that it is a day after the declaration of results by the returning officer; that is, in this petition, from the 22/4/07. By the operation of Section 141 of the Act, the Appellant ought to have filed his petition thirty days from 22/4/07. The argument for the Appellant concerning the date the Registry of the lower Tribunal opened for business was not in issue before the lower Tribunal. The Appellant merely averred in his affidavit that in the Chief Judge’s radio announcement, it was mentioned that the Registry of the Tribunal would be opened to the public on that date.
In furtherance of the contention for the 1st Respondent, Exhibit “G” relied upon by the Appellant was debunked and declared a forgery by the returning officer, Mr. Ibrahim Ahmed. This is contained in pages 309 to 310 of the record. In the said retraction, the returning officer deposed to the facts that he was not the maker of Exhibit “G”. The signature on it is not his. He acknowledged issuing Exhibit “A” and that the date on Exhibit “A”, that is, 21/4/07 was the date the election results under consideration were declared. Learned counsel for the 1st Respondent submitted that Exhibit “A” is conclusive proof of the time the election result was declared. There was no need for the lower Tribunal to order for oral evidence. In this regard, he referred to the provisions of Section 132(1) of the Evidence Act which state that when any official proceedings have been reduced to the form of a document or series of documents, no evidence may be given of such proceedings except the document itself. He also relied on the case of:
J. O. Fashogbon Vs. A. A. Layade (2003) WLRN p.1 at p.12 paras. C – D; that oral evidence can not be adduced to contradict documentary evidence.
The learned counsel for the 1st Respondent equally submitted that it is trite that a court or tribunal is competent when:
(a) It is properly constituted with respect to the number and qualifications of its members.
(b) The subject-matter of the action is within its jurisdiction.
(c) The action is initiated by due process of law.
(d) Any condition precedent to the exercise of jurisdiction has been fulfilled.
On this legal principle, he referred to the cases of:
(1) Madukolu vs. Nkemdilim (1962) 1 All NLR p. 584 and
(2) Umar Vs.Onikata (1999) 3 NWLR (Pt. 596)p. 558.
In the instant case, according to learned counsel, the Appellant filed his petition thirty-one (31) days from 21/4/07 when the results of the election were declared. A condition precedent to the exercise of the lower Tribunal’s jurisdiction over the election petition is that it must be filed within thirty (30) days from the date the results of the elections were declared. The Appellant did not comply with the condition precedent. This affected the competence of the petition and consequently the jurisdiction of the lower Tribunal.
The learned counsel for the 2nd – 4th Respondents submitted that the election, subject-matter of dispute was held on 21st April, 2007 and the results declared the same date. However, the petition was flied on 22nd May, 2007 which was thirty-one (31) days after the declaration of the results.
Both parties are ”ad idem” that the Appellant had only thirty (30) days to file his petition after the declaration of the results in consonance with Section 141 of the Electoral Act 2006 and failure in that regard rendered the petition statute barred.
The contention of the Appellant that the Registry of the Tribunal was opened only on 22nd May, 2007 and reliance on a broadcast by a Radio Station cannot hold water because they cannot be used to prove the time that the Registry of the Tribunal commenced work.
The Electoral Act 2006 does not provide that time will begin to run against a petitioner from the opening of the Tribunal Registry but FROM THE DATE OF DECLARATION OF RESULT. The Exhibit relied upon by the Appellant particularly from pages 258 to 271 of the record, cannot be the evidence that the Registry of the lower Tribunal started operating on 22nd May, 2007, At page 258 of the record is the Radio announcement that the inauguration of the Tribunal had been done by the Kogi State Chief Judge. Whereas the Tribunal was duly constituted by the President Court of Appeal. At page 271, it is not stated that the Tribunal Registry will be opened as from 22nd May, 2007 but that the Registry was already opened.
Learned counsel further submitted that the document from Kogi State Radio is not from the Tribunal and not binding on the Tribunal to establish the date of the opening of the Registry. It is trite that he who alleges must prove. The allegation of the Appellant that the Registry of the Tribunal only opened on 22nd May, 2007 has not been proved in this case. There is no evidence from the Appellant that he went to the Registry of the Tribunal before 22nd May, 2007 and it was not opened.
The said document from the Radio Station is glaringly not admissible on the ground that it was not properly certified. The name and status of the officer that certified the documents were not stated therein. There was no evidence of payment as required by the provisions of the Evidence Act. The contention of the Appellant that the lower Tribunal ought to have ordered for oral evidence because of conflicting affidavit evidence cannot also hold water. There are three affidavits claimed to have been sworn to by Ahmed Ibrahim (4th Respondent) in this case. They are:
(a) An affidavit as a statement of a witness dated 3rd July, 2007 at pages 150 to 1st of the record.
(b) An affidavit dated 7th July, 2007 at pages 294 to 295 of the record.
An affidavit of fact dated 12th July, 2007 at pages 309 to 310 of the record.
In two of the affidavits the deponent stated clearly that the results of the election were declared on 21st April, 2007 and in the third affidavit he denied being the deponent to the second affidavit. The affidavit evidence in this case vis-a-vis FORM EC8 E11 containing the declared results is co-terminous with oral evidence. The tenor of the Rules of the Tribunal is to avoid time wastage. Therefore the main document to use in determining the date of declaration is FORM EC8 E11 and it is only when that document is ambiguous that recourse could be had to any other evidence particularly oral evidence. In the instant case form EC8 E11 is very clear and requires no external aid to interpret it. It is now settled law that oral evidence cannot be given to contradict the terms of a document. He referred to section 132 (1) of the Evidence Act
The 2nd – 4th Respondents’ learned counsel further emphasized that the case of the Appellant is that the result of the election was not declared on 21st April 2007 while the 1st Respondent’s case is that the result of the election was declared on 21st April 2007. The lower Tribunal was bound to resolve these issues one way or the other on the preponderance of evidence. In counsel’s opinion, the Appellant could be described as a party speaking from both sides of the mouth because he maintained three inconsistent positions. In his petition at page 7 of the record, he stated that the results were announced on 25th April 2007. In his counter affidavit in opposition to the preliminary objection, he stated that the results were declared on 2200 April, 2007. In another breath he relied on a Radio Broadcast that the results were declared on 23rd April, 2007.
On the other hand, throughout the proceedings the Respondents maintained that the result was declared on 21st April 2007 in line with FORM EC8E11. It is settled law that where there is conflict in evidence of a party on one side, the evidence should totally be rejected. The Court cannot choose one and disbelieve the other, instead all will be disbelieved. The evidence of the Appellant on the date of declaration of results was disbelieved. The only uncontradictory evidence left was that of the 1st Respondent and the lower Tribunal was left with no alternative than to believe that version and rely on it.
I have thoroughly considered the submissions of counsel for all the parties to this appeal. The fulcrum of the contention of the Appellant in this Appeal at this juncture which calls for resolution is the day the results of the election in contest were actually declared. The procedure for the declaration or announcement of election results is as clearly provided for under Section 28 of the Electoral Act, 2006, Section 28 provides thus:
“28.-(1) The Electoral Officer shall act as Returning Officer for election to the office of Chairman of Area Council.
(2) Results of all the elections shall be announced by:
(a) The Presiding Officer at the Ward Collation Centre,
(b) The Ward Returning Officer at the Ward Collation Centre;
(c) The Returning Officer, at the Local Government or Area Council,’
(d) The Returning Officer at the State Constituency Collation Centre:
(e) The Returning Officer at the Federal Constituency Collation Centre;
(f) The Returning Officer at the Senatorial District Collation Centre;
(g) The Resident Electoral Commissioner who shall be the Returning Officer at the Governorship election. and ,
(h) The Chief Electoral Commissioner who shall be the Returning Officer at the Presidential election.”
(Underlined is mine for emphasis)
Therefore for the purposes of the election to the House of Representatives for Dekina/Bassa Federal Constituency of Kogi State, it was the duty of the Returning Officer at the said constituency collation centre to declare election results- see Section 28 (2) (e) reproduced above. It is evident from the printed record of the proceedings of the lower Tribunal that Mr. Ibrahim Ahmed the 4th Respondent was the returning officer for Bassa/Dekina Federal Constituency- see pages 309 to 310 of the record. Mr. Ibrahim denied making Exhibit “G” credited to him by the Appellant. It is pertinent to state that the matter of the date of election results’ declaration was contested on affidavit evidence of parties in the lower Tribunal. The lower Tribunal whose duty it was to resolve the matter properly considered same and came to the following conclusion in lines 25 to 31 at page 334 and lines 1 to 2 at page 335 of the record:
“We have examined the affidavits and documents of both parties, it is our finding that while the 1st Respondent consistently maintained his assertion that the result was declared on 21st April, 2007, the Petitioner presented a very inconsistent case. In paragraph 24 of his petition he pleaded that the result was announced on 25th April the same Petitioner is now saying the result was declared on 22nd and 23rd April 2007 See paragraphs 20 to 22 of the Counter affidavit. The Petitioner is also relying on the day the result was announced on the radio. It is settled law that announcement of election results on a radio or television station is not a recognized mode of declaring an election result, see Altaha Vs. Asin (supra). ”
What is more, the Appellant did not urge upon the lower Tribunal to make any order to have what he perceived as conflicting facts to be resolved by oral evidence of the deponents of such facts.
It is trite that a party must be consistent in stating his case and consistent in proving it. He will not be permitted to take one stance during Trial and turn around from that stance on Appeal. For this will be tantamount to a volteface in the claims of parties. See the cases of:
(1) Bunge Vs. Gov. of Rivers State (2006) 12 NWLR (pt. 995) p.573;
(2) Ngige Vs.Obi (2006) 14 NWLR (Pt. 999) p.1;
(3) Chief Sergeant C Awuse Vs. Dr. Peter Odili & 3 ors. (2003) 18 NWLR (Pt. 851) p.116 and (4) Eronini Vs. Ihenko (1989) 2 NWLR (Pt. 101) p. 46. ‘
It is also trite that when a document is duly pleaded, tendered and admitted in evidence, that document becomes the best evidence of its contents and therefore speaks for itself. It is the contents of the whole document that are in evidence. That being the case the court can not disregard the document. See the case of: Atanda Vs. Ifelagba (2003)17 NWLR (Pt. 849)p. 274.
The duty of appraising evidence given at a trial is pre-eminently that of the Trial Court. It is the right of that court to ascribe value to evidence. If there was proper evaluation of the evidence by the trial court in the sense that every material finding was supported by the totality of evidence on record, the appellate Court has no business to embark on a journey of re-appraisal of the evidence in order to arrive at a different conclusion. See the cases of:
(1) Ajiboye Vs. Ishola (2006) 13 NWLR (Pt.998) p.628;
(2) Onisaodu Vs. Elewuju (2006) 13 NWLR (pt.998) p.517 and
(3) Ogundulu Vs. Philips (1973) 2 SC p.71
In the instant case, I find no valid legal basis to fault or interfere with the conclusion of the lower Tribunal in this regard.
From my above deductions, it is quite clear that Exhibit A, Form EC8E 11 shows that the election results in question were declared on 21/4/07. That being the case, the next pertinent point for consideration is whether the Appellant filed his petition within the statutory period as required under the Electoral Act, 2006.
The time for presenting an election petition is thirty (30) days from the date the results of the election were declared. This is the express provision of Section 141 of the Act. All the parties to this Appeal are ”ad idem” on this and that indeed time begins to run the day after the declaration of the election results. The Appellant filed his petition on 22/5/07- see the endorsement to this effect at the bottom left hand side of page 7 of the record. This was thirty – one (31) days after the declaration of the election results on 21/4/07. The Appellant was out of time in filing his petition, albeit by one (1) day. The Appellant had understandably tried to view this as a slight error on his part which could be wished away with a wave of the back hand.
My reaction to this attitude on the part of the Appellant is as reflected in the trite law and practice in election matters. These are quite established, not novel at all and there are plethora of legal authorities in the regard that an election petition has a peculiar trait or character which is held to be ”sui generic”. There is no doubt about this any longer. See the case of Abubakar Vs. INEC (2004) NWLR (Pt.854) p.207.
One major factor or feature which marks out election matters is that time is seriously of essence in the filing, trial and Appeals of election petitions. This conclusion can be drawn from the combined effect of the provisions of Sections 141 and 148 of the Electoral Act, 2006 and Paragraphs 7(2), 12(1), 16(1) and 51 of the First Schedule to the Act and the provisions of the Practice Direction No.2, 2007.
By the provisions of the 1999 Constitution, election petitions are special matters which are completely distinct, divorced and separate from civil or even criminal matters. They are ”sui generis’: In this case of Orubu Vs. INEC (1998) 5 NWLR (Pt. 94) p. 323 at p. 347 the Supreme Court had this to say:
“An election petition is not the same as ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which by reasons of their importance to the well being of a democratic society, are regarded with an aura that place them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.
The peculiar nature of election petitions has been affirmed in several judicial decisions. See the cases of:
(1) Obi vs. Mbakwe (1984) NSCC Vol.15 p. 127-
(2) Onitiri Vs. Benson (1960) 5 FSC p. 150;
(3) Nwobodo Vs Onoh (1984) 1 SC p.1;
(4) Abdulahi Vs. Elayo (1993) 1NWLR (pt. 268) p. 171;
(5) Ajibola v. Ajadi (2004) 16 NWLR (pt. 898) p. 91 and
(6) Kalu Vs. Uzor (2004)12 NWLR (pt.886) p.1
From the foregoing, I hold that failure of the Appellant to file his petition within the time allowed under the Act, made the petition incompetent. As of necessity, issues one and two suffer the fate of failure. They are hereby resolved in favour of the Respondents.
Generally, the effect of an incompetent petition is that it automatically divests the Tribunal of jurisdiction and brings the matter to an end. It is not a mere procedural irregularity or defect. It is a matter of jurisdiction. Ordinarily, having found that the petition purportedly filed by the Appellant in the instant case was incompetent, that should be the end of this Appeal. However, courts are enjoined to consider and pronounce on every issue put forth by a party before it for resolution or determination.
It is in the fulfillment of all righteousness in this matter that I will now proceed to consider issue three.
ISSUE THREE
“Whether the non inclusion of the scores of the candidates was fatal to the petitioner’s action?”
It was submitted for the Appellant that, by the provisions of paragraph 4(1) of the First Schedule to the Electoral Act 2007, every election petition shall indicate the scores of the respective candidates. However, the failure of the Appellant to include same was borne out of his inability to obtain the figures from the 2nd – 3rd Respondents despite his formal application for same as evidenced at page 256 of the record of proceedings. Clearly, under circumstances such as this, the Tribunal could have exercised its power by calling for further and better particulars as provided under the Practice Direction. Even if the tribunal lacked the power to call for further and better particulars, the exclusion or omission of the respective scores of the candidates did not make the petition defective. This position of the law is supported by a plethora of this court’s decisions including but not limited to Oddiri Vs. Oyefia (2006) Vol 3 WRN.R 39, ratio 10. In the case, the court held that the failure to state the scores of the candidates in the petition was not enough to render the petition incompetent, the reason being that the court would not allow undue recourse to technicalities in fostering injustice to a petitioner who should not be precluded from ventilating his grievance. He also referred to the case of Ogbeide Vs. Osula (2003) 15 NWLR (Pt. 843) R. 266 at p. 288 paras. A-B.
The effect of the non-inclusion of the candidates’ scores is hinged on the grounds upon which the petition was brought as well as the reliefs sought by the Appellant. In essence, the Tribunal was called upon to consider whether the scores of the candidates was an issue in the petition brought before it.
The Appellant’s learned counsel contended that the scores of the candidates was not an issue. At no time did the Appellant make the scores an issue as he pointedly contended that the election was marred by non-compliance with the provisions of the Electoral Act, corrupt practices and the corollary of these is that the 1st Respondent was not elected by the majority of the votes cast. The Appellant rather I than pray that he be declared as the winner of the election in if question, he had prayed that a fresh election be conducted. As such) the exclusion of the scores of candidates from the petition did not make the petition defective. He relied on the case of Owuru Vs. INEC (1999) 10 NWLR (Pt.622) p.212
The 1st Respondent’s learned counsel submitted that by paragraph 4(1) (c) of the First Schedule to the Electoral Act, 2006, an election petition shall state the holding of the election, the scores of the candidates, etc. The Appellant’s petition did not contain the scores of the candidates at the election he was challenging. One of the grounds upon which the return of the 1st Respondent was being challenged is that:
“The 1st respondent was not duly elected by majority of lawful votes cast at the election”
In the case of: Enemuo Vs. Duru (2006) All FWLR (pt. 304) p. 508 at p. 549 which was decided under paragraph 4(1) (c) of the First Schedule to the Electoral Act, 2002, which is “in pari materia” with paragraph (4) (1) (c) of the First Schedule to the Electoral Act, 2006; the court held that it was mandatory and without negotiation or compromise that for a person to have been returned as the winner of an election, the scores must be known and stated. There must be hard , and tangible evidence of such facts and not a mere speculation or imagination.
The Appellant’s grouse in the instant case is that the 1st Respondent was not duly elected by majority of lawful votes, the scores therefore became vital and it was his duty to furnish them by virtue of paragraph 4(1) (c) of the First Schedule to the Act. Reliance on this stance was placed on the case of: Ujam Vs. Nnamani (2005) All FWLR (Pt, 252) p. 580 at p. 597 paras. F – H. The appellant, having failed to comply with the mandatory provisions of the Electoral Act, filed an incompetent petition and the Tribunal was right in dismissing the petition on the ground of incompetence.
The 2nd- 4th Respondents’ learned counsel submitted that by the clear provisions of paragraph 4 (1) (c) of the Electoral Act, 2006, a petitioner must state the holding, scores of the candidate and the person returned as the winner. In the instant case the Appellant did not state the scores of the candidates despite his complaint that the 1st Respondent did not score the majority of lawful votes. The Appellant having failed to comply with one of the mandatory contents of an election petition which is the statement of the scores of the candidates that contested in the election as declared by the Returning Officer rendered the petition incompetent. Reliance was placed on the case of Dickson & Anor. Vs. Balat & Anor. IEPR p. 243 at p. 272 p, A-D.
The Appellant’s purported letter to INEC and the filing of notice to produce “per se” could not empower the Tribunal to order for further particulars. The Appellant cannot hide under this cloak, rather the ought to have applied appropriately pursuant to Paragraph 17(3) of the First Schedule to the Electoral Act 2006. The Tribunal had no duty to do a structural amendment of the incurable petition of the Appellant.
The learned counsel for the 2nd – 4th Respondents argued that the Appellant ought to have taken advantage of the provisions of Section 159 of the Electoral Act 2006 to approach a Court or Tribunal for an order for inspection of documents for the purpose of instituting or maintaining an election petition. The Appellant’s mere letter to INEC without evidence of further steps taken to get the said documents and the filing of notice to produce the documents can not exonerate him, from blame for falling to state the scores of the candidates in the petition,
I have very carefully considered the submissions of all counsel in support of their respective stances under this issue. One of the major traits or characters which marks out election matters is that there must be strict compliance with all the laws and rules of practice and procedure relating thereto. These are principally the Electoral Act, 2006 and the Practice Direction No.2, 2007. The latter derived from Section 285 of the 1999 Constitution, Section 8(2) of the Court of Appeal Act and Section 149 of the Electoral Act.
The right of a person to contest an election is a creation of the 1999 Constitution and other statutes, any person who seeks a relief under such laws must therefore submit himself strictly to the provisions of those laws. The process leading to and the proceedings in election matters are such that the slightest default in certain circumstances in complying with a procedural step which otherwise could either be cured or waived in ordinary civil matters could result in fatal consequences in an election petition.
Paragraph 4 of the First Schedule to the Act provides for the details or ‘contents of an election petition. One of such details is contained in paragraph 4(1) (c),for ease of reference, I hereunder reproduce the said provisions thus:
“4- (1) An election petition under this Act shall:
(a) specify the parties interested 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
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.”
(Underlined is mine for emphasis)
The operative word in Paragraph4 (1) above reiterated is “shall”. It is trite that where the word “shall” is used in a statute, the intention of the legislature is that it is capable of bearing many meanings. It may imply futurity or a mandate or direction or giving permission. In the Black’s Law Dictionary, Eighth Edition at page 1407 under the definition of the word “shall’; it is stated that when a negative word such as “not” or “no” precedes ”shall’; the word ”shall” often means ”may’: That is, what is being negated is permission, not a requirement. However, when the word “shall” is used in the mandatory sense like it is in the instant case, the legislature typically intends and the courts typically uphold. The standard required is strict. The action to be taken must obey or fulfill the mandate exactly. See the cases of:
(1) Ifezie Vs.Mbadugha(1984) 1 SCNLP. 427;
(2) Amadi Vs. NNPC (2000)10 NWLR (Pt.764) p.76 and
(3) Oju L. G. Vs. INEC (2007) 14 NWL.R (pt.1054) p.242
It was indeed held in the cases of: (1) Abubakar Vs. INEC supra and (2) Buhari Vs. Yusuf (2003) 14 NWLR (Pt. 841) p. 446; that in election matters, the word ”shall” connotes mandatory direction which has to be complied with exactly.
It is imperative that in an election petition, the procedure laid down in the Electoral Act and the Practice Direction must be strictly complied with.
It is trite that rules of Court are meant to be obeyed. These include the Rules of Procedure for Election Petitions, that is, the First Schedule to the Electoral Act, 2006. No favour should be shown for not obeying them. They must be complied with and can not be circumvented. See the cases of:
(1) Ojugbele Vs. Lamidi (1999) 10 NWLR (Pt. 621) p. 167 at p. 172:
(2) Adebusuyi Vs. Oduyoye 2004 1 NWLR (Pt. 854) p. 406;
(3) Williams Vs. Hope Rising Funds Society (1982) 2SC p. 145;
(4) Ikem Vs. Efamo (1997) 4 NWLR (Pt.499) p.318 and
(5) Tejuosho Vs. Omojowoqbe (1998) 7 NWLR (Pt. 559) p. 628
I am in agreement with the learned counsel for the Respondents that failure of the Appellant to state the scores of the candidates at the election was fatal to his case. It amounted to non-compliance with the mandatory provisions of the Electoral Act, 2006. The petition purportedly filed by the Appellant was therefore rendered incompetent. In essence, issue three is also resolved in favour of the Respondents.
On the whole, I have found that the petition filed by the Appellant at the lower Tribunal was incompetent. I am therefore in agreement with the submissions of learned counsel for the Respondents and indeed the decision of the lower Tribunal that the incompetency of the petition prevented the lower Tribunal from adjudicating upon the election petition of the Appellant. It is indeed trite law that the jurisdiction of courts is radical and crucial. Where a court lacks jurisdiction over a matter, it lacks the “vires” to entertain and deliberate on it. A defect in competence is therefore fatal in that it renders an entire proceedings, trial and findings invalid, null and void “ab initio” however brilliantly they must have been conducted and concluded. See the cases of:
(1) Oke Vs. Oke (2006)17 NWLR (pt.1008) p.224 and
(2) Ezenwosu Vs. Ngonadi (1988) 3 NWLR (pt.81) p.168.
The Courts or Tribunals are creatures of statute. Their jurisdiction is defined and limited by the Constitution, the ground norm and the statutes which created them. The Constitution is the substantive law which makes provisions for the procedural laws or other statutes applicable in the various courts and tribunals established by it. Courts can not in essence expand their jurisdictional horizon by misappropriating or misconstruing statutes. Parties can not individually or by agreement confer jurisdiction on a court where a court has none. See the cases of:
(1) Madukolu Vs. Nkemdilim supra,
(2) Offia Vs. Ejem (2006) 11NWLR (pt. 992) p.652;
(3) African Newspapers of Nigeria Vs. F.R.N (1985) 2 NWLR (pt.6) p.137 and
(4) Rosseck Vs. ACB (1993) 8 NWLR (pt. 312)p. 382 at p. 439.
A court must of necessity be vested with jurisdiction before it can embark on the journey of adjudication.
It is an age-long settled principle of law that a court is said to be competent or possess jurisdiction to entertain and determine a matter placed before it if:
(a) it is properly constituted as regards the qualifications of members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction;
(c) and the case comes before the court initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of jurisdiction.
From the circumstances of the instant case, it is quite evident that the subject-matter of the case. The Appellant’s petition, had a feature of incompetence which prevented the trial Tribunal from exercising its jurisdiction to adjudicate thereupon. To put it in another way, the conditions precedent to the proper filing of the petition of the Appellant were not fulfilled. The petition was not duly initiated in accordance with the provisions of the Electoral Act, 2006. The lower Tribunal was therefore prevented from exercising jurisdiction to adjudicate upon the case.
In concluding this judgment, both learned counsel for the 1st and 2nd – 4th Respondents rightly observed that the Appellant neither formulated nor argued any issue out of ground four (4) of the Gounds of Apeal. I agree that the said ground four (4) is deemed abandoned in the circumstances of this Apeal. It is hereby accordingly struck out.
On the whole, this Apeal is not meritorious. It fails and is accordingly dismissed. The ruling of the lower Tribunal delivered on 19/7/07 dismissing for incompetence the petition filed before it by the Appellant is hereby upheld.
I make no order as to costs.
Other Citations: (2008)LCN/3040(CA)
