Yusuf Ahmed Badau & Anor V. Independent National Electoral Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting in Kano in petition number EPT/KNS/HR/30 2007 wherein the Tribunal struck out the petition of the Appellants in limine on 3rd September, 2007. The 1st Appellant was a candidate of the All Nigeria Peoples Party in the election held on the 21st April, 2007 for the House of Representatives seat for the Shanono/Bagwai Federal Constituency of Kano State. The 3rd Respondent was a candidate of the People Democratic Party in the said election. The 1st and 2nd Respondents conducted the elections at the end of which the 3rd Respondent was declared winner. Not being satisfied with the return of the 3rd Respondent, the Appellants filed a Petition before the lower Tribunal. But before the Petition could be heard, the 1st and 2nd Respondents on 1st August, 2007, filed an application praying the lower Tribunal to strike out the Petition in its entirety on the ground that “the failure to state in the petition the official scores by which the 3rd Respondent was returned by the 1st Respondent renders the petition incompetent” (See pages 182 – 190 of the Record of Appeal).
Both parties filed written addresses in support and against the application respectively. In a reserved ruling, the Tribunal ruled as follows:-
“In view of the foregoing, we find the preliminary objection meritorious and we uphold it. Consequently, we strike out the petition for non – compliance, with paragraph 4 (i) (c) of the 1st schedule to the Electoral Act, 2006 by failure to state the official scores of the candidates who contested the election in issue.”
Being dissatisfied with the stance of the lower Tribunal which struck out their Petition, the Appellants have appealed to this Court. The Notice of Appeal is dated 15th September, 2007 and filed same date. It contains five grounds of appeal out of which the Appellants have distilled three issues for determination.
These are:-
“(1) Whether as a condition for the competence of the Petition, the provisions of paragraph 4 (i) (c) of the First Schedule to the Electoral Act, 2006 impose a legal obligation to state in the Petition the official scores by which a candidate is declared the winner of the Election challenged? (Ground I”)
(2) Having regard to the legal ground (and the facts) upon which the petitioners anchored their challenge to the return of the 3rd Respondent, was the Tribunal right in holding that the person returned as winner of the election, as well as the scores of the candidates who contested there at were not stated in the petition? (Ground 2).
(3) In deciding the interlocutory Application leading to its Ruling, was it lawful for the Tribunal to suo motu raise and make findings relating to the averments of the parties in support or in opposition to the matters alleged in the substantive petition? (Grounds 3, 4, 5).”
The 1st and 2nd Respondents were represented by one counsel who formulated two issues for the determination of this appeal as follows:-
“(1) Whether the lower Tribunal was right in holding that the official scores by which the 3rd Respondent was returned by the 1st Respondent as the winner of the election was not stated in the petition despite the scores pleaded by the petitioners in the petition.
(2) Whether the lower Tribunal in its Ruling on the application of the 1st and 2nd Respondents suo motu raised issues relating to the averments of the parties in support or in apposition to the matters alleged in the substantive petition and made findings in that regard (Grounds 3and 5)”
The learned counsel for the 3rd Respondent submitted three issues to be resolved in this appeal. The issues are:-
(1) Whether or not the lower National Assembly Election Tribunal was right to have struck out the Appellants petition having regard to the failure to comply with the provisions of paragraph 4 (1) (c) of the first schedule to the Election Act 20067 (Ground I)
(2) Whether or not having regard to the state of pleadings and the appellants claim, the Tribunal was right to have held that the Appellants have to state the scores by which the 3rd Respondent was returned as winner of the election held on 21st day of April, 2007. (Ground 2)
(3) In considering the circumstance of this appeal, was there any issue suo motu raised by the lower Tribunal to deny the Appellants a fair hearing?
(Grounds 3, 4 and 5)
It is of note that both the 1st and 2nd Respondents on one hand and the 3rd Respondent on the other have each given notice of preliminary objection. I intend to dispose of the two preliminary objections before deciding the main issues in the appeal. I start with the preliminary objection of the 1st and 2nd Respondents. The Notice of preliminary objection of the 1st and 2nd Respondents is dated 22nd October 2007 and filed same date. It has three grounds of objection which I hereby reproduce for ease of reference as follows:-
(1) That ground one of the Notice of Appeal from which issue one was formulated is a new issue which was not considered or determined by the lower Tribunal and the leave of this court was not sought or obtained.
(2) That some of the arguments in the appellants brief as detailed out in the 1st and 2nd Respondents brief of argument are not predicated on any issue properly arising from a ground of appeal.
(3) That ground four of the grounds of appeal is not covered by issue three or any other issue formulated by the appellants.
The argument in support of the preliminary objection is contained on pages 4 – 7 of the 1st and 2nd Respondents brief. The Learned Counsel for the 1st and 2nd Respondents submitted that ground one from which issue No. 1 is formulated does not flow from the judgment of the Court below and urged this Court to discountenance same. He cited and relied on several cases among which are Dabo vs. Abdullahi (2005) 2 S.C. (Pt.1) page 75, Eze Vs. Attorney General Rivers State (2001) 12 S.C. (Pt. 2) page 21 and Ezukwu Vs. Ukachukwu (2004) 7 S.C. 96.
In reply the learned counsel for the appellant in a reply brief dated and filed on 9th November, 2007 but deemed filed on 4th December, 2007, submitted that there is a robust and unassailable nexus between the pronouncement of the Tribunal in the Ruling now on appeal, ground one in the Notice of Appeal and issue No. 1 posted in the Appellants’ brief of argument. He urged the Court to dismiss the Preliminary Objection.
For ease of reference I hereby reproduce both the ground of appeal complained of and the issue flowing therefrom.
Ground one (without the particulars) reads:-
“The Honourable Tribunal erred in law when it held that under paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006, stating the official score by which INEC returned the 3rd Respondent as the winner of the election is mandatory for the competence of the Petition, by reason whereof it struck out Petition No.EPT/KNS/HR/30/2007 as incompetent for non- Compliance there with.”
The 1st issue as formulated from the above ground of appeal states:-
“Whether as a condition for the competence of the petition, the provisions of paragraph 4 (1) (c) of the First Schedule to the Electoral Act, 2006 impose a legal obligation to state in the petition the official scores by which a candidate is declared the winner of the election challenged? -(Ground 1)”.
It is trite that a ground of appeal must flow from the judgment of a court and any such ground which has no bearing with the decision of the court is liable to be struck out. See Federal College of Education, Oyo Vs. Chief Akin Akinyemi (2008) 7 W.R.N. 107, Saraki & Ors Vs. Kotoye (2001) 48 W.R.N. 1, Enigbokan Vs. American International Insurance Company Limited (1994) 6. N.W.L.R. (Pt.348) 1.
Consequently, issues for determination must be formulated from the grounds of appeal, whether the issues arise from the appellants brief or the Respondents brief.
Any issue which does not flow from the grounds of appeal is incompetent and should be discountenanced and struck out. See: Mobil Producing Nigeria: unlimited Vs. Asuah (2002) F.W.L.R. (Pt. 107) Page 1196, Idika Vs. Erisi & Ors (1988) 2 N.W.L.R. (Pt. 78) 563.
In the instant case, the pronouncement of the court below giving rise to this appeal can be seen on page 258 of the Record of Appeal. It reads in part :
“In view of the foregoing we find the preliminary objection meritorious and we uphold it. Consequently, we strike out the petition for non-compliance with paragraph 4 (1) (c) of the 1st schedule to the Electoral Act, 2006 by failure to state the official scores of the candidates who contested the election in issue”
From the above decision of the lower court reproduced, I agree with the learned counsel for the appellant that there is a robust and unassailable nexus between the decision of the lower Tribunal now on appeal, Ground one in the Notice of Appeal and issue No 1 in the Appellants’ brief of argument. There is no argument to cover grounds 2 and 3 of the Notice of preliminary objection and there is nothing therefore to be considered by this court. The only logical conclusion is that the two grounds have been abandoned. I hold that the preliminary objection by the 1st and 2nd Respondents lacks merit and is accordingly overruled.
The 3rd Respondent also raised a preliminary objection of which notice is dated and filed on 22nd October, 2007. The objection was initially anchored on three grounds but at the hearing, the 2nd ground was withdrawn leaving two grounds as follows:-
(1) “The ground two (2) of the appeal raised issue as to misdirection on facts while also raising in the same ground an error of law thereby making that ground incompetent.
(ii) That the Appellants / Respondents did not obtain leave of the Tribunal before the Notice of Appeal is (sic) filed thereby making the entire appeal incompetent.”
The contention of the learned counsel for the 3rd Respondent on the first ground of objection is that misdirection on facts and misdirection in law are exclusive of each other. That one can only allege a misdirection on facts on one ground and an error of law on another ground. That in the instant case, since both have been couched in the same ground, such ground is incompetent and should be struck out. He cited and relied on the following cases:- University of Ilorin Vs. Oyelana (2001) F.W.L.R. (Pt 83) 2193, Tumo Vs. Marana (2001) F.W.L.R. (Pt. 33) 369, Davidson Construction Ltd. Vs. Bees Electrical Ltd. (2001)F.W.L.R. (Pt.63) 154 Ajayi Vs. Igbinoghene (2001) F.W.L.R. (Pt. 77) 946.
The learned counsel for the 3rd Respondent however agrees that there is an exception to the general rule as epitomized in the case of Hambe Vs. Hueze (2001) F.M.W.L. (Pt.42) 1. He urged this Court to strike out ground two in the notice of appeal for being incompetent.
On the second ground he contended that the striking out of the petition of the Appellants by the lower Tribunal although a final judgment, does not give a right of appeal to the appellant under Section 246 (b) (i) (ii) (iii) of the 1999 Constitution of the Federal Republic of Nigeria. That the Appellants ought to have sought for and obtained the leave of Court to appeal. That having not obtained leave, the notice of appeal filed in this case should be declared incompetent. He relied on the case of Okon Vs. Bob (2004) 1 N.W.L.R. (Pt. 854) 374.
From the Appellants’ reply to 3rd Respondent’s brief of argument, the Learned Counsel for the appellant has replied to the preliminary objection of the 3rd Respondent on pages two to eight. On the first ground of objection; learned counsel referred to the case of Aderounmu Vs. Olowu (2004) 4 N.W.L.R. (Pt. 652) 253 and submitted that it is not the contention of the 3rd Respondent that the said Ground 2 does not satisfy the requirement of preciseness or specificity set out in Order 6 Rule 2 of the Court of Appeal Rules 2007. Also that the 3rd Respondent has not demonstrated that he is in doubt and without adequate information as to what the complaint in Ground 2 of the appellants Notice of Appeal actually is. He urged this Court to overrule the Preliminary Objection on this ground and cited further the case of Okotie – Eboh Vs. Manager (2004) 11 – 12 S. C. 174.
As regards the other ground of objection, learned counsel opined that the decision in Okon Vs. Bob (Supra) runs against the provision of Section 246 (b) of the Constitution of the Federal Republic of Nigeria 1999 and the earlier decisions of this Court in which the said section had been interpreted before the decision in Okon vs. Bob. He referred to an earlier unreported case of Alhaji Abubakar H. Hashidu & Ors Vs. Alhaji Mohammed T. Goje & Ors – Appeal No. CA/J/113M/2003 delivered on 23rd day of May, 2003. It was the contention of learned counsel and he urged this Court to so hold that the decision in Okon Vs. Bob was reached per incuriam. He then urged further that the preliminary objection be overruled on this ground also.
I agree that a ground of appeal which alleges a misdirection on facts and error in law has certainly combined two issues which ought to have been made separately. Before now such a ground of appeal was rendered incompetent and liable to be struck out. See University of Ilorin Vs. Oyelana (supra), Tumo vs. Marana (supra) and others set out above. But as rightly pointed out by the Learned Counsel for the 3rd Respondent, it seems the Courts are gradually moving away from this stance where the said ground is clear, unambigous and explicit. In Hambe Vs. Hueze (2001) F.W.L.R. (PT.42) 1 at 16 paragraph C – E, G – H, the Supreme Court said concerning such ground of appeal thus:-“A ground of appeal alleging error in law and misdirection on facts is not thereby incompetent if it otherwise complies with the rules of Court requiring that a ground of appeal be not vague or general in terms (save what is known generally as the omnibus ground) and disclosed a reasonable ground of appeal such that the Respondent is given sufficient notice of the precise nature of the Appellant’s complaint.”.
Also in Alhaji Abdulrahman Akanbi vs. Mallam Wasiu Salawu & Ors (2003) 6 S.C.N.J. 246 at 254, the apex Court per Uwaifo, JSC re echoed this seemingly shift:-
“I need not go into further discussion on the consequences of framing a ground of appeal as a misdirection in law or an error in law and on the facts other them to say that such framing does not ipso facto make the ground of appeal incompetent. That would normally raise a ground of mixed law and facts, which is not unusual in many appeals. But it ought to be carefully examined, as any other ground of appeal, along with its particulars. So long as it is not capable of misleading the other party, and the Court is satisfied that its meaning can be reasonably elicited, cannot be considered objectionable…The Court below was right in holding that Grounds 4 and 6 of the grounds of appeal filed before it were competent even though they complained of a misdirection in law and on the facts.”
My understanding of the apex Court’s decision in the two cases referred above is that if such a ground of appeal is clear, unambigous, not misleading and its meaning can be reasonably elicited, it ought not to be declared incompetent. Throughout the argument of the 3rd Respondent, he did not complain that he did not understand the purport of the 2nd Ground of appeal or that it is vague or that it is misleading. In fact the Supreme Court has recently by held in M.D.P.D.T. Vs. Okonkwo (2006) 7 N.W.L.R. (Pt. 711) 206 that the important consideration in the determination of the nature of a ground of appeal is not the form of the ground but the question it raises. Such question must of necessity be clear, cogent and capable of reasonable meaning to be elicited from it. The said Ground 2 of the grounds of appeal is rendered thus:-
“GROUND TWO
The Honourable Tribunal misdirected itself on the facts and in law when it held that the Petition did not state the score of the candidates, and/or the score by which the 1st Respondent ostensibly declared the 3rd Respondent as the winner of the election.
PARTICULARS OF MISDIRECTION
(i) Section 145 of the Electoral Act 2006 Provides that an Election may be Questioned on the ground that the Person returned (in this case, the 3rd Respondent) was not duly elected by majority of lawful votes cast at the Election.
(ii) Ex – Facie, the Petition (to which the Official Result sheet is annexed), States clearly the score of the candidates, and that the 3rd Respondent was ostensibly declared winner with 28, 679 votes, as against the 2nd Petitioners majority or lawful votes totaling 30, 741.”
I have carefully examined the above ground of appeal together with its particulars and I have not seen any vagueness or ambiguity in it. The complaint in the said ground is crystal clear and leaves nobody in doubt what it complains about. Whenever an objection is raised against a ground of appeal, it is for the Court before which the question is raised to decide whether the ground satisfies the requirement of preciseness and clarity. See Aderounmu Vs. Olowu (2004) 4 N.W.L.R. (Pt.652) 253 at 265 – 266 paragraph H -E.
In the circumstance, I feel safe to hold that Ground 2 of the grounds of appeal in the instant case, having not offended order 6, Rule 2 (2) & (3) and Rule 3 of the Court of Appeal Rules 2007 is proper though it alleges misdirection in fact and error in law since as I have seen, it is, clear, cogent and does not mislead any of the parties. The preliminary objection cannot in the circumstance succeed on this ground.
On the next ground of preliminary objection, let me reproduce Section 246 (1) (b) (i) (ii) (iii) of the 1999 Constitution of the Federal Republic of Nigeria for ease of reference. It states:-
(a) “246 (i) An appeal to the Court of Appeal shall be as of right from –
(b) Decision of the National Assembly Election Tribunals and Governorship and Legislative House Election Tribunals on any question as to whether –
(i) Any person has been validly Elected as a member of the National Assembly or of a House of Assembly of a state under this constitution, (ii) any person has been validly elected to the office of Governor or deputy Governor, or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
It was the contention of the learned counsel for the 3rd Respondent that the decision of the lower Tribunal in the instant case does not touch any of the instances under S. 246 (1) (b) of the 1999 Constitution quoted above’ and as such, the Appellant has no right of appeal envisaged under that section. He had relied heavily on the case of Okon v. Bob (supra). Now the decision in Okon v. Bob (supra) is to the effect that by the provision of s. 246 (1) (b) of the constitution, 1999, an appeal lies as of right only if a petition is determined on the merit after a full trial, and that an order striking out such a petition would not qualify as a decision against which an aggrieved party can appeal as of right.
A year before the decision in Okon v. Bob was made, this Court had in Alhaji H Hashidu & ors Vs Alhaji Mohammed T. Goje & Ors in appeal No CA/J/113M/2003 (unreported) delivered on 23/5/03 held otherwise. In interpreting section 246 (1) (b) of the constitution, the word “decision” is in the front burner. Section 318 (1) of the 1999 constitution defines decision as follows:-
“decision” means, in relating to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
Since an “Order” made by a Court is also regarded as a “decision” of the Court, it seems to me that an order striking out the petition of the appellant which order lays to rest the proceedings threat is a decision contemplated under S. 246 (1) (b) of the Constitution 1999 which gives the appellant a right of appeal. In Hashidu Vs. Goje (supra), this Court held inter – alia on the issue (is follows:-
“The salient word in (b) above is “Decision” which according to S. 318 (1) of the Constitution (supra) is defined as:-
” ……….In relation to Court, any determination of that Court includes judgment, decree, order, conviction, sentence or recommendation.”
We believe that the ruling sought to be appealed against falls within the meaning of the word decision above. In construing the right of the applicant/appellant to appeal, the two above constitutional provisions must be read together, and after doing so, we are satisfied that the applicant/appellant is properly before this Court, and we have the jurisdiction to entertain the application.”
I seem to agree with this earlier interpretation of that section by this Court as it preserves the right of appeal conferred on the appellant by the Constitution. To hold otherwise will not only deny the appellant his right to ventilate is grievance before a Higher Court but will appear absurd. My worry however is that the Court while deciding in Okon Vs. Bob (supra) did not take into cognizance its earlier decision on the matter in Hashidu Vs Goje. It seems to me that what happened in this case is what Olagunju J.C.A. alluded to in Ndili vs. Akinsumade (2000) F.W.L.R. (Pt.5) 750 at 786 paragraph F when he observed:-
“Whenever a relevant prior decision is not cited before the Court, or mentioned in the judgment of the Court, it must be assumed that the Court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per incuriam and is not binding on a later Court.”
It is not in doubt that the Constitution under S. 246 (1) (b) gives right of appeal on decisions of the Court on the matters listed therein, and decision has been defined by the same Constitution to include an “order” made by the Court. Therefore, the order which struck out the petition of the appellant falls within this decision and the appellant has a right of appeal in the circumstance. I am unable to follow the decision in Okon Vs. Bob because, apart from the fact that it did not take into consideration the earlier decision in Hashidu Vs Goje it is inconsistent with the clear provision of S. 246 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999. It is only fair and reasonable for an appellate Court to depart from its earlier decision if the earlier decision was given per incuriam, or it is clearly erroneous in law or is inconsistent with the provision of the Constitution. See Adisa Vs. Oyinwola (2000) 10 N.W.L.R. (Pt.674) 116; Williams Vs. Daily Times Nigeria Ltd (1990) 1 N.W.L.R (pt.124) 1; Egbe v. Yusuf (1992) 6 NWLR (pt 245) 1; Rossek v. ACB Ltd (1993) 8 NWLR (pt 312) 382. On the whole, I hold the view that the two grounds upon which the preliminary objection of the 3rd Respondent is anchored are incompetent and cannot sustain the preliminary objection. In the circumstance the preliminary objection is hereby overruled.
Having overruled the two preliminary objections in this appeal, it is clear that both the grounds of appeal contained in the Notice of Appeal and the issues formulated from them are proper before this court and I shall proceed to consider them. From the issues formulated by the Appellants and the two set of Respondents, it appears to me that only two issues are before the court as issue No 2 of both the appellants and the 3rd Respondent are mere repetition of their 1st issue respectively. I think the two issues as couched by the 1st and 2nd Respondents are more lucid and I intend to determine this appeal based on the two issues which are issues 1 and 3 in the Appellants’ brief of argument. What this means is that issues one and two of the Appellants brief shall be taken together.
It was the contention of the learned counsel for the appellants that paragraph 4 (1) (c) of the first schedule to the Electoral Act, 2006 does not impose a legal obligation to state in the petition the official scores by which a candidate is declared the winner of the Election challenged as a condition for the competence of the petition. That it is the lower Tribunal that imported the condition into the explicit words in paragraph 4 (1) (c) of the 1st schedule to the Act. Relying on the cases of Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (pt 82) 280 and A-G. Bendel State v. Aideyan (1989) 4 NWLR (pt 118) 646 he opined that since the paragraph did not include the words “scores by which a candidate is returned winner”, it is not mandatory to state same in a petition to make it competent.
He further contended that having admitted the authenticity of the scores reflected in Form EC8D(ii) No 0000434, the Respondents however alleged in their respective Reply that the scores said to have been recorded at Kadumu ward ought to have been included in and / or added to those shown on Form EC 8 D (ii) No.0000434 for it to represent the complete result of the Election conducted into the house of Representatives for Bagwai / Shanono Federal Constituency of Kano State. It is clear that the conflicting claims of the parties as to what is the “complete result” remain mere allegations of the parties on both sides of the divide. This is so since the appellant had pleaded the scores of all the candidates in the petition as in Form EC 8 D (ii) No.0000434. He submitted that the facts of this case are in all fours with the case of Enemuo v. Duru (2004) 9 NWLR (pt 877) 75 and urged this court to apply same in the circumstance.
He finally urged this court to hold that having regard to the legal ground and the facts upon which the petitioners anchored their challenge to the return of the 3rd Respondent, the Tribunal was wrong in holding that the person returned as winner of the election, as well as the scores of the candidates who contested thereat were not stated in the petition and on that score, erroneously struck out the petition for being in non – compliance with paragraph 4 (1) (c) of the 1st schedule to the Electoral Act, 2006.
In the 1st and 2nd Respondents brief of argument, the learned counsel appearing for them submitted that the requirement to state the scores of the candidates is to be taken together with the requirement to state the person returned as the winner of the election. That the scores required to be pleaded are those by which the person returned by the electoral body won the election. He cited the cases of Eriobuna v. Obiorah (1999) 8 NWLR (pt 616) 622, Enenuo v. Duru (supra).
Furthermore, that what the appellant have done under this issue is to misconstrue or dimly construe the reasoning and decision of the lower Tribunal and proceed on the basis of that misconstruction to attack the decision. That the lower Tribunal held that the scores (and not the score) as released by INEC which returned the 3rd Respondent as the winner of the election was not stated.
Finally, Learned Counsel submitted that from the decision of the lower Tribunal, it is clear that the allegation of the Appellants that the official score of a candidate was read into the requirement of paragraph 4 (1) (c) of the 1st schedule to the Electoral Act 2006 is without foundation. He urged this court to resolve this issue against the Appellants.
The submission of the learned counsel for the 3rd Respondent is on all fours with that of the 1st and 2nd Respondents. I do not intend in the circumstance to summarise it here. The determination of this issue calls for a clear interpretation of paragraph 4 (1) (c) of 1st schedule to the Electoral Act, 2006. The paragraph states:-
“4(1) An election petition shall –
(a) –
(b) –
(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election.”
In the light of the above provision, for an election petition to be competent, the following are mandatory requirements which must be stated in the petition among others:-
- The holding of the election
- The scores of the candidates and
- The person returned as the winner, of the election.
Needless to say that any petition which fails to state the above essentials is incompetent and the Court will have no option than to strike it out. But what interpretation should be placed on paragraph 4 (1) (c) of the 1st schedule to the Electoral Act? It is a cardinal principle of interpretation that where the language and wordings of a statue is clear and unambiguous, the Courts should give the words their ordinary, natural and grammatical construction. The only situation where constructive interpretation of such clear words can be made is where such would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation. See Uwazurike & Ors Vs. Attorney General Federation (2007) 2 S.C. 169; Attorney General Anambra State Vs. Attorney General Federation (2007) 5 – 6 S.C. 192.
The Learned Counsel for the appellants had argued that the lower Tribunal imported the need to state the official scores which returned a candidate as the winner in the election. I think this argument is not only erroneous but misleading. Let it be stated once again that even where a petitioner has scores different from the one officially declared by the electoral body which led to the declaration of a winner, the petitioner is bound to state the official scores and thereafter state the scores which he believes are correct. This has always been the interpretation given to paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006. Thus in Eeriobuna Vs. Obiorah (1999) 8 N.W.L.R. (Pt. 616) 622 at 638 paragraph E – H Tobi J.C.A. (as he then was) held as follows:-
“As it is, the sub – paragraph provides three requirements: (a) that the election was held. In this respect, the petitioner is expected to depose to the fact that the election was held and the date on which it was held. (b) The scores of the candidates who contested the election. Here, the petitioner is under a legal duty to indicate the official scores of INEC and not what he thinks or thought should be the scores. He can reserve what he thinks or thought should be the scores to any subsequent paragraph or paragraph in the petition. All that paragraph 5 (1) (c) requires is the raw official scores of INEC. ” (underlining mine)
Here his Lordship was considering paragraph 5 (1) (c) of Decree 5 of 1999 which is in pari materia with paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006. I think the lower Tribunal was just stating the position of the law. Their Lordships did not import anything into the sub – paragraph. This is so because the requirement to state the scores of the candidates is to be taken together with the requirement to state the person returned as the winner of the election. The Appellant who was the petitioner has not pleaded ignorance of the raw official scores as released by INEC which declared the 3rd Respondent as the winner.
I am even surprised that the Appellant failed to plead the official scores of the candidates in his petition. I still wonder how he intended to challenge or question that result which returned the 3rd Respondent as the winner seeing that the return was based on the unpleaded result? What an herculean task to challenge before the Tribunal a result that is not placed before it? I think it was only fair and just for the lower Tribunal to terminate the petition at that stage as the virus which attacked the petition could not be cured at that stage. See Wudil J. P. Vs. Aliyu (2004) 14 W.R.N. 127.
I have read the case of Enemuo Vs. Duru (supra) which was relied upon by the Learned Counsel for the appellants and also by the Respondents. On the issue at hand, the authority avails the Respondents and not the Appellants. For example, the scores pleaded in Enemuo Vs. Duru were contained in Form E.C. 8 whereas in the instant case, it was stated in E.C. 8 D. Again, the winner of the Election in Duru’s, case was issued with form E.C. 8 E the form for declaration and return of a candidate at the election whereas the appellants name in that case was not on it. Moreso, this was an intra party matter as both Enemuo and Dr Duru were members of the Peoples Democratic Party.
On the whole, it is my well considered view and I so hold that the lower Tribunal was right in holding that the petition was incompetent and consequently struck out for non compliance with paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006 by failure to state the official scores of the candidates who contested the election. I resolve this issue against the appellants.
The last issue is whether in deciding the interlocutory Application leading to its ruling, the Tribunal was right to suo motu raise and make findings relating to the averments of the parties in support or in opposition to the matters alleged in the substantive petition. It was submitted by the Learned Counsel for the appellants that although S. 74 of the Evidence Act empowers the Tribunal to take judicial notice of the content and import of the provisions of the Electoral Act, 2006, and although S.77 of the Electoral Act empowers the Electoral Commission to determine the Forms to be used in the election, in the absence of any evidence before the Tribunal of what Forms the Commission had so determined, it was not available to the Tribunal to invoke S. 74 of the Evidence Act to take judicial notice of the fact that the election to the House of Representatives declaration of result is on Form E.C. 8 E (ii) as opposed to the use of Form E.C. 8 D (ii) which purports to carry the result the petitioners seek to rely upon.
Learned Counsel further contended that the matter of not stating the scores of candidates who contested the election was suo motu raised and decided by the Tribunal without affording the parties an opportunity to make any input regarding same. That it is not the business of the Court to raise issues sno motu for the purpose of making up cases for the parties. He cited these cases: Boyol Vs. Ahemba (1999) 10 N.WL.R. (Pt. 623) 381, Kraus Thompson Organisation Ltd. Vs. Unical (2004) 9 N.W.L.R. (Pt. 879) 631.
There are other argument under this issue but I think they are completely outside the ambit of the issue. Counsel urged the Court to resolve this issue for the appellants.
The Learned Counsel for the 1st and 2nd Respondents submitted that the Tribunal properly took judicial notice of the fact that the declaration of result and return of a candidate as winner at an election is done on Form E.C. 8 E (ii) on the ground that the forms of INEC were made pursuant to the express authorization of the Electoral Act, 2006 and are thus subsidiary legislation made by the Commission as is contained in their Manual of Election for Electoral Officers and that the fact that result and return of a winner is contained in Form E.C. 8 E (ii) is a notorious fact which the Court may and is entitled to take judicial notice of. Apart from urging the Court to resolve this issue against the appellants, he also urged the Court to discountence the many arguments made on this issue by the appellants which are not relevant to the issue.
It was the turn of the Learned Counsel for the 3rd Respondent who submitted that by virtue of the provision in S. 64 (1) of the Electoral Act and S. 74 of the Evidence Act, the lower Tribunal was in order when it took judicial notice of the fact that election results are made in Form E.C.8E(ii). He also urged this Court to resolve the matter against the Appellants.
On page 256 of the Record of Appeal the Tribunal in its Ruling said among others:
“We have taken judicial notice of the fact that the election to the House of Representative declaration of result is on Form E.C. 8 E (ii) as opposed to the use of Form E.C. 8 D (ii) which purports to carry the result the petitioners seek to rely upon as a statement of the official results of the election in question.”
The simple question to be answered here is whether the Forms stated above are such that the Court can take judicial notice of. It is under Section 74 of the Evidence Act that Courts including Tribunals are empowered to take judicial notice of certain facts.
That Section provides:-
“74. The Court shall take Judicial notice of the following facts –
(a) All laws or enactments and subsidiary Legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria.
(b) All public Act passed or hereafter to be passed by the National Assembly and all subsidiary legislation made thereunder, and all local and personal Acts by the National Assembly to be judicially noticed.”
The above provision is clear on what the Court can take judicial notice of. It includes all laws or enactments and subsidiary legislation that is made there under having the force of law now or hereafter among others. The Learned Counsel for the appellant has admitted that the Court can take judicial notice of the content and import of the provisions of the Electoral Act, 2006 inclusive of all Forms appendixed thereto and forming an integral part thereof. He is right here. But what surprises me is counsel’s inability to appreciate the fact that the Tribunal can take judicial notice of any subsidiary legislation made pursuant to the Electoral Act, 2006.
Section 77 of the Electoral Act, 2006, provides as follows:-
“The Forms to be used for the conduct of election to the offices mentioned in Section 41 of this Act and election arising there from shall be determined by the commission.”
Section 64 (1) of the Act also provides:-
“The Presiding Officer shall, after counting the votes at the polling station or unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case be.
A communal reading of these sections is that the forms to be used for specific purposes at the Election are to be determined by INEC. And pursuant to this power, INEC made what is called “Manual of Election for Electoral Officers” and in it is contained the Forms to guide Electoral Offices including Form E.C. 8 E (ii) for the return of the winner of the election. I think, this document is clearly among matters which the Court can take judicial notice of. All Forms used in the election which are produced by INEC pursuant to Section 77 of the Electoral Act, 2006, to my mind are within the ambit of matters which the Court can take judicial notice of. Thus where a party submits to the Court a Form purporting to be a declaration of Result form which is found to be false, the Court can suo motu say that it is not correct. It is just like citing a wrong section of the law to support an argument. The Court has the right to observe that it is not in order. So, I do not see anything wrong for the Tribunal to observe that the Form attached purported to be a declaration of Result Form was not the case. This issue, in my opinion does not avail the appellants in the circumstance.
In sum, it is my well considered opinion that the three issues formulated for determination in this appeal lack merit and the appeal itself fails. The appeal is accordingly dismissed. I affirm the decision of the Governorship and, Legislative Houses Election Petition Tribunal, Kano in petition No. EPT/KNS/HR/30/07 which struck out the petition of the Appellant for failure to comply with paragraph 4 (1) (c) of the First Schedule to the Electoral Act, 2006.
The Appellant shall pay N20,000.00 costs to the 3rd Respondent only.
Other Citations: (2008)LCN/2811(CA)
