ALHAJI ATIKU ABUBAKAR, GCON & ORS. V. ALHAJI UMARU MUSA YAR’ADUA & ORS.
In The Supreme Court of Nigeria
On Friday, the 12th day of December, 2008
SC.72/2008
RATIO
ELECTORAL LAW: DIFFERENCE BETWEEN AN ELECTION PETITION AND COMMON LAW CIVIL ACTION
An election petition is sui generis. That is to say it is in a class by itself. Surely, this is no longer a moot point. It is different from a common law civil action. This must be borne in mind throughout these proceedings. The applicable law under consideration is the provision or section 145(1) of the Electoral Act, 2006 which I have read earlier on in this judgment but for ease of reference I hereby read it again: 145-(1) An election may be questioned on any of the following grounds, (a) that a person whose election is questioned was at the time of election, not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; (c) that the respondent was not duly elected by majority of lawful votes cast at the election: or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.” PER KATSINA-ALU J.S.C
WORD AND PHRASES: THE DEFINITION AND USE OF THE WORD “OR”
It will be seen clearly, that grounds (a), (b) and (c) above are separated from ground (d) by the word “or”, the word “or” is defined in Black’s Law Dictionary, Sixth Edition in the following terms:
“A disjunctive participle used to express an alternative or to give a choice of one among two or more things.” In the case of Aruba v. Aiyeleru (1993) 3 NWLR (Pt.208) 126 at 141-142 this court in construing the word “or” thus: “……..The power given to the court under the rule is to either strike out or amend, the word “or” having a disjunctive connotation, It does not give the court the power to strike out and amend…………..” Also in the case of Abia State University v. Anyaibe (996) 3 NWLR (Pt. 439) 646 at 661 the Court of Appeal per Katsina-Alu, J.C.A (as he then was) held: “….It is to be noted that twelve months period is separated from the next period following by the word “or”. This word always bears the disjunctive meaning in an enactment, that is to say it separates the provision preceding it from the provision coming after it. Its role is to show that the provisions in which it is appearing are distinct and separate one from the other. In Black’s Law Dictionary Sixth Edition the word “or” is defined inter alia: A disjunctive participle used to express an alternative or to give a choice of one among two or more things.” Without doubt the word “or” in section 145(1) of the Electoral Act has compartmentalized the grounds in (a), (b) and (e) together and ground (d) on its own. There is good reason for this. A careful reading of section 145(1) would reveal that a petition under subsection (1)(a)(b) & (c) docs presuppose that the petitioner did in fact participate in the election as a contestant. Whereas a petition under subsection (1)(d) does presuppose that the petitioner was excluded from participating in the election as a contestant. PER KATSINA-ALU J.S.C
JUSTICES
IDRIS LEGBO KUTIGI Justice of The Supreme Court of Nigeria
ALOYSIUS IYORGYER KATSINA-ALU Justice of The Supreme Court of Nigeria
GEORGE ADESOLA OGUNTADE Justice of The Supreme Court of Nigeria
MARIAM ALOMA MUKHTAR Justice of The Supreme Court of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
Between
- ALHAJI ATIKU ABUBAKAR, GCON
2. SENATOR BEN OBI
3. ACTION CONGRESS (AC) Appellant(s)
AND
- ALHAJI UMARU MUSA YAR’ADUA
2. DR. GOODLUCK JONATHAN
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. PROFESSOR MAURICE MADUAKOLAM IWU (CHAIRMAN INEC)
6. CHIEF ELECTORAL COMMISSIONER & 808 OTHERS Respondent(s)
KATSINA-ALU J.S.C (Delivering the Leading Judgment): Following the 21st April, 2007 presidential election which returned the 1st Respondent as the elected President of the Federal Republic of Nigeria, the Appellant filed their petition challenging the said election on the 21st May, 2007 vide a 51 paragraph petition asking the Court of Appeal to invalidate the said election the Court of Appeal on 26th February, 2008 dismissed the petition. This appeal is against that dismissal.
The presidential election was held on the 21st day of April, 2007 to fill the offices of the President and Vice-President of the Federal Republic of Nigeria. The election, which was held nation-wide by the 4th respondent, was contested by candidates from 25 political parties. The 1st and 2nd appellants contested as candidates of the Action Congress (AC). The 1st and 2nd respondents contested the election as candidates of the 3rd Respondent – Peoples Democratic Party (PDP). The Chief Returning Officer of the 4th Respondent returned the 1st and 2nd respondents as duly elected President and Vice-President respectively of the Federal Republic of Nigeria. As I have already indicated, the appellants filed a petition at the Court of Appeal on the 21st day of May, 2007 challenging the return. The petition was dismissed.
In their joint brief of argument, the appellants raised ten (10) issues for determination in this appeal. They read thus:
1. WHETHER, AFTER ITS RULING ON 20TH SEPTEMBER, 2007, THE LOWER COURT, IN ITS JUDGEMENT DELIVERED ON 26TH FEBRUARY, 2008, WAS NOT IN ERROR TO HAVE RE-OPENED CONSIDERATION OF THE ISSUE THAT THE PETITION IN ITS ENTIRETY WAS INCOMPETENT AND THAT 5TH RESPONDENT WAS WRONGLY JOINED IN THE PETITION.(GROUNDS 2, 3 AND 4).
2. WHETHER THE LOWER COURT IS RIGHT IN HOLDING, FIRSTLY, THAT THE 1ST PETITIONER WAS NOT UNLAWFULLY EXCLUDED FROM THE ELECTION AND, SECONDLY, THAT, HAVING PLEADED UNLAWFUL EXCLUSION, HE CANNOT QUESTION THE ELECTION ON ANY OTHER GROUND.(GROUNDS 5, 7, 8, 9, 10, 14 & 15)
3. WHETHER THE JUDGMENT ON APPEAL TO THIS COURT IS NOT VITIATED BY THE COURT’S USE OF SECTION 146 OF THE ELECTORAL ACT, 2006 TO SHIELD FROM INVALIDITY, VAROUS INFRACTIONS OF THE ACT, INCLUDING CASES OF NON-COMPLIANCE AMOUNTING TO CORRUPT PRACTICE, NON-COMPIIANCE WITH THE PROVISIONS RELATING TO BALLOT PAPERS AND TO THE VOTERS REGISTER.(GROUNDS 11, 18, 20, 21, 34, AND 36.)
4. WHETHER THE DECISION OF THE COURT OF APPEAL STRIKING OUT THE NAME OF THE 5TH RESPONDENT ON THE GROUND THAT HE IS NOT A JURISTIC PERSONALITY IS CORRECT HAVING REGARD TO THE PLEADINGS, EVIDENCE AND ENTIRE CIRCUMSTANCES OF THE PETITION.(GROUND 6)
5. WHETHER THE COURT OF APPEAL RIGHTLY DEEMED THE 1ST RESPONDENT AS HAVING BEEN DULY ELECTED PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA BY MAJORITY OF VALID LAWFUL VOTERS OF 24, 638, 063 IN THE FACE OF THE THREE CONFLICTING “FINAL” RESULTS OF THE ELECTION WHICH THE 4TH AND 6TH RESPONDENTS WERE UNABLE TO EXPLAIN OR RECONCILE BY THEIR PLEADINGS OR BY EVIDENCE AT THE TRIAL.(GROUNDS: 1, 23, 24, 25 AND 38)
6. WHETHER THE ALLEGATIONS OF APPARENT SIMILAR HANDWRITING ON DOCUMENTS TENDERED BY CONSENT CAN ONLY BE ESTABLISHED BY CALLING EXPERT HANDWRITING ANALYST, WHEN RESPONDENTS OFFERED NO EXPLANATION BEYOND BARE DENIAL THROUGH UNNAMED, UN-SWORN WITNESSES, WHO WERE NOT THE AUTHORS OF THE SAID DOCUMENTS. (GROUND 19)
7. WHETHER THE DECISION OF THE COURT OF APPEAL TO THE EFFECT THAT THE PETITIONERS DID NOT SPECIFICALLY IDENTIFY ANY POLICE OFFICER OR SOLDIER WHO PARTICIPATED IN THE CONDUCT OF THE ELECTION WAS CORRECT HAVING REGARD TO THE ADMISSIONS ON RECORD, PLEADINGS AND EVIDENCE. (GROUND 22).
8. WHETHER OR NOT THE FAILURE OF THE COURT OF APPEAL TO CONSIDER THE VALIDITY AND ADMISSIBILITY OF ALL THE WITNESS STATEMENTS OF THE 1ST & 2ND RESPONDENTS AND SOME OF THOSE OF THE 4TH – 808TH RESPONDENTS OCCASSIONED A MISCARRIAGE OF JUSTICE.
(GROUND 31).
9. WHETHER OR NOT THE TOTAL FAILURE OF THE COURT OF APPEAL TO EVALUATE AND PRONOUNCE UPON THE EVIDENCE ELICITED FROM THE 5TH RESPONDENT BY WAY OF ANSWERS TO THE ADMINISTERED INTERROGATORIES OCCASIONED A MISCARRIAGE OF JUSTICE.(GROUND 27, 28, 29, 30, 32).
10. WHETHER THIS IS NOT A PROPER CASE FOR THE SUPREME COURT TO INVOKE SECTION 22 OF THE SUPREME COURT ACT TO INVALIDATE THE ELECTIONS IN VIEW OF:
i) FAILURE OF THE COURT OF APPEAL TO EVALUATE EVIDENCE ON VITAL ISSUES RELATING TO DELIVERY AND SUPPL Y OF BALLOT PAPERS
ii) DISREGARDING PETIONERS SUBMISSIONS ON THOUSANDS OF EXHIBITS THAT SUPPORTED PETIONERS’ AS HIGHLIGHTED IN SCHEDULES 1-25 INCORPORATED INTO THEIR FINAL ADDRESSES;
iii) FAILURE OF THE COURT OF APPEAL TO PROPERLY EVALUATE AND PRONOUNCE ON EVIDENCE LED BY THE PETITIONERS IN THEIR WITNESSES PREJUDICIAL CONCLUSIONS NOT BORNE BY THE RECORDS,
iv) ALLOWING EXTRANEOUS POLITICAL CONSIDERATIONS TO AFFECT THEIR JUDGMENT TO THE PREJUDICE OF THE PETITIONERS. (GROUNDS 17, J8, 26, 33, 37 & 39).
v) DISALLOWING THE PETITIONERS’ INDEPENDENT WITNESSES ON SUBP0ENA FROM TESTIFYING ON GROUND THAT THEIR DEPOSITIONS WERE NOT FRONT-LOADED AT THE TIME OF RULING OF THE PETITION.(GROUND 1, 2 AND 4 OF INTERLOCUTORY APPEAL).
The 1st and 2nd Respondents also identified ten (10) issues for determination. These are as follow:
1. UPON A DISPASSIONATE INTERPRETATION OF SECTION 145(1)(d) OF THE ELECTORAL ACT, 2006, WHETHER THE APPELLANTS WHO COMPLAINED OF TOTAL EXCLUSJON FROM PARTICIATION IN THE ELECTION COULD STILL RIGHTLY CHALLENGE THE OUTCOME OF THE ELECTION UNDER ANY OF THE GROUNDS STATED IN SECTION 145(1)(a)(b) AND (e) OF THE SAME ELECTORAL ACT – (GROUNDS 5,7, 8, 9 AND 10).
ii. CONSIDERING THE FACT THAT THE OBJECTION RAISED TO THE COMPETENCE, OF THE APPEAL WAS/IS JURJSDJCTIONAL, COUPLED WITH THE FACT THAT THE LOWER COURT DID NOT DISPOSE OF THE MERITS OF THE SAID OBJECTION IN ITS RULING OF 20TH SEPTEMBER 2007, WHETHER IT CAN RIGHTLY BE SAID THAT THE SAID OBJECTION HAS BEEN CAUGHT BY ISSUE ESTOPPED TO EXCLUDE THE VALID PRONOUNCEMENT MADE ON IT BY THE LOWER COURT IN ITS FINAL JUDGMENT – (GROUNDS 2, 3, 4 AND 6).
iii. HAVING REGARD TO THE STATE OF THE PLEADINGS READ TOGETHER WITH THE MANDATORY PROVISIONS OF PARAGRAPH 4(1)(C) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2006 IN CONJUNCTION WITH SECTION 141 OF THE SAME ELECTORAL ACT, WHETHER THE LOWER COURT WAS NOT PERFECTLY RIGHT TO HAVE ADOPTED THE SCORES PLEADED FOR BOTH 1ST APPELLANT AND THE 1ST RESPONDENT IN THE PETITION AND AS ADMITTED IN THE RESPONDENTS’ REPLY -( GROUND 1).
iv. BEARING IN MIND THE STATE OF THE VARIOUS CRIMINAL ALLEGATIONS., CONTAINED IN THE PETITION VIS-A-VIS., SECTIONS 135,136,137 AND 138 OF THE EVIDENCE ACT AND DECIDED AND BINDING AUTHORITIES OF THIS COURT ON ELECTORAL MATTERS, COUPLED WITH THE TERSE EVIDENCE PLACED BEFORE THE COURT BY THE PETITIONERS/APPELLANTS, WHETHER THE APPELLANTS EVER DISCHARGED THE ONUS OR BURDEN OF PROOF PLACED ON THEM TO WARRANT THE GRANT OF THEIR PETITION/RELIEFS –
(GROUNDS 11, 22, 23, 24 AND 39).
v. JUXTAPOSING THE MYRIADS AND AVALANCHE OF CRIMINAL OR QUASI-CRIMINAL ALLEGATIONS OF NON-COMPLIANCE WITH, THE PROVISIONS OF THE ELECTORAL ACT, 2006, WITH THE LACK OF EVIDENCE TO ESTABLISH THE SAID ALLEGATION, WHETHER THE LOWER COURT WAS NOT PERFECTLY RIGHT BY HOLDING THAT THE SAID ALLEGATIONS WERE UNPROVEN AND/OR THAT IF THEY WERE PER-PHERRALLY PROVED, SAME WAS NOT SUFFICIENT TO HAVE AFFECTED THE OUTCOME OF THE ELECTION – GROUNDS 12, 13,.14,15,16,20,21, 34,36 AND 38.
vi. DO SCHEDULES 1-25 PROCURED BY APPELLANTS’ COUNSEL AND ATTACHED APPELLANTS’ WRITTEN ADDRESS HAVE ANY PROBATIVE VALUE TO WARRANT ANY COURT USING THEIVITO NULLIFY THE 1ST RESPONDENT’S ELECTION( GROUNDS 17, 18 AND 33).
vii. CONSIDERING THE PLEADINGS OF PARTIES, THE DEARTH OF EVIDENCE ON SEEMINGLY SIMILAR WRJTINGS/S1GNATURES AND THE WRITTEN, ADDRESSES OF THEIR RESPECTIVE COUNSEL WHEREIN NO INVITATJON WAS MADE TO THE LOWER COURT TO COMPARE OR CONTRAST PERCEIVED SIMILAR WRITINGS/SIGNATURES, WHETHER THE LOWER COURT WAS UNDER ANY DUTY OR OBLIGATION TO START COMPARING SUCH PERCEIVED SIMILAR WRITINGS/SIGNATURES – (GROUND 19).
viii. WAS THE LOWER COURT NOT RIGHT BY AFFIRMING THE RETURN OF THE RESPONDENTS AS MADE BY THE CHIEF ELECTORAL COMMISSIONER FOR THE PRESIDENTIAL ELECTION AFTER PAINSTAKINGLY CONSIDERING THE EVIDENCE BEFORE IT – (GROUNDS 25 AND 26).
ix. CONSIDERING THE ANSWERS ELICITED BY WAY OF DEPOSITIONS THROUGH AFFIDAVITS FROM THE INTERROGATORIES, COUPLED WITH THE FACT THAT UNDER AND BY VIRTUE OF ORDER 33 RULE 8(1) AND (2) OF THE FEDERAL HIGH COURT CIVIL PROCEDURE RULES, APPELLANTS DID NOT COMPLAIN THAT THE ANSWERS ELICITED BY THEM WERE INSUFFICIENT TO WARRANT AN ORDER FOR FURTHER ANSWERS, WHETHER THERE WAS ANY NEED FOR THE CONSIDERATION OF THE SAID ANSWERS AND/OR WHETHER THE ANSWERS HAVE ANY PROBATIVE VALUE TO THE APPELLANTS – GROUNDS 27, 28,29,30 AND 32.
x. UPON A HOLISTIC CONSTRUCTION OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007 (PRACTICE DIRECTIONS) WHETHER RESPONDENTS’ WITNESS STATEMENTS WHICH APPELLANTS COPIOUSLY MADE USE OF AT THE LOWER COURT AND IN THEIR BRIEF BEFORE THIS COURT WERE/ARE NOT PROPERLY PLACED BEFORE THE LOWER COURT – (GROUNDS 30 AND 31).
The 3rd respondent and the 4th – 808th respondents also raised similar issues for determination.
I think the starting point is the appellants’ issue No.2, the 1st and 2nd Respondents’ Issue No.1. Both issues question whether a petitioner who complained of exclusion from participating in the election can question the outcome of the election under any of the grounds stated in section 145(1)(a)(b) and (e) of the Electoral Act.
The grounds on which this petition is based are:
“(a) The 1st Petitioner was validly nominated by the 3rd petitioner but was unlawfully excluded from the election.
(b) The election was invalid by reason of corrupt practices;
(c) the election was invalid for reason of non compliance with the provisions of the Electoral Act, 2006 as amended; and
(d) the 1st Respondent was not duly elected by the majority of lawful votes cast at the
April 21, 2007 Presidential Election.”
The petitioners in the petition prayed for eight reliefs which read as follows:
“1. It may be determined that the presidential Election of 21st April, 2007 is invalid for unlawful exclusion of the 1st and 2nd petitioners who were validly nominated by the 3rd petitioner as its candidate at the Presidential election, and the said election be nullified.
ALTERNATIVELY THAT:
2. It may be determined that Alhaji Umaru Musa Yar’dua who was returned by the 4th – 6th respondents as the President elect based on the Presidential Election held on 21st April, 2007 was not duly elected (or returned) and his election be nullified.
3. It may be determined that the said Presidential Election held on 21st April 2007 is invalid for non-compliance with the provisions of electoral Act, 2006, which non-compliance had substantially affected the result of the election, and that the election be nullified.
4. It may be determined that the said election be invalidated or annulled by reason of widespread
corrupt practices, and that the election be nullified.
5. It may be determined that a fresh ejection be conducted into the office of the President of the
Federal Republic of Niger in, in accordance with section 147 of the Electoral Act, 2006 at which the 1st and 2nd Petitioners shall be accorded full and unimpeded right to contest as validly nominated candidates.
6. It may be determined that the 5th, 7th – 42nd Respondents as officials of the 4th Respondent, who directly and negligently misconducted the April 21, 2007 Presidential Election in contravention of the provision of the Electoral. Act, 2006 be recommended for criminal prosecution by the Attorney-General pursuant to section 157 of the Electoral Act, 2006.
7. It may be recommended that the 5th, 7th – 42nd Respondents who supervised and/or misconducted the April 21, 2007 Presidential Election be prohibited from participating in the conduct of the fresh election which may be ordered in consequence of this Petition.
8. And for such order or further orders as the Honourable Court may deem fit to make in the circumstance.”
The first issue the court below took up was whether or not the petition was incompetent for the reason that the ground of unlawful exclusion was raised along with other grounds. The law under consideration is the provision of section 145(1) of the Electoral Act, 2006 which provides as follows:-
“145-(1) An election may be questioned on any of the following grounds,
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
It was the contention of the 1st and 2nd Respondents that the ground under section 145(1)(d) of the Electoral Act relating to the exclusion of a candidate from contesting the election and the three earlier grounds provided under the same section 145(1)(a),(b) and (c) relating to disqualification or a candidate who was returned, corrupt practices and non-compliance with the provision of the Act and failure of the respondents to secure majority of the lawful votes cast at the said election are mutually exclusive. They cannot be lumped together as was done in the instant case. It was further said that a candidate who is complaining of exclusion at an election does not have the locus standi to challenge the result of the election based on other alternative grounds. It was submitted for the 1st and 2nd Respondents that the wordings of the section are very clear, simple and unambiguous and should therefore be given their ordinary literal meaning.
Learned counsel for the petitioners/appellants disagreed. He submitted that a petitioner is not precluded from relying on alternative grounds under section 145 of the Electoral Act, 2006.
In its judgment the Court of Appeal struck out the alternative grounds. That court held that:
“We find that having relied on the ground of valid nomination and unlawful exclusion, the Petitioners are ordinarily, precluded from relying on any other ground under section 145(1) of the Electoral Act, 2006 and the alternative grounds ought to be struck out, after all, it has been variously held that where a statute provides a particular mode of performing a duly regulated by statute, that method, and no other, must have to be adopted. Refer to Nuhu-Sani Ibrahim v. I.N.E.C & Ors. (1999) 8 NWLR (Pt. 614)334 at 352;Muhammadu Buhari v. Alhaji Mohammed Dikko Yusuf (2003) 4 NWLR (Pt. 841) 446 at 498-499.”
The court below then proceeded to examine the issue of exclusion – whether petitioners were excluded from participating in the presidential election of 21st April, 2007 or not.
After exhaustive consideration of the submissions and arguments all behalf of the parties, the court below found as follows:
“The petitioners, from their own showing in their pleadings, evidence of their salient witnesses as
depicted earlier on in this judgment, as well as their conduct after the judgment of the Supreme Court on 16th April, 2007, cannot be heard to say that they have been excluded from the presidential election, They were not excluded, they were included and actively participated in the election. This issue is accordingly resolved against the petitioners and in favour of the Respondents,”
An election petition is sui generis. That is to say it is in a class by itself. Surely, this is no longer a moot point. It is different from a common law civil action. This must be borne in mind throughout these proceedings.
The applicable law under consideration is the provision or section 145(1) of the Electoral Act, 2006 which I have read earlier on in this judgment but for ease of reference I hereby read it again:
145-(1) An election may be questioned on any of the following grounds,
(a) that a person whose election is questioned was at the time of election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election: or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
It will be seen clearly, that grounds (a), (b) and (c) above are separated from ground (d) by the word “or”, the word “or” is defined in Black’s Law Dictionary, Sixth Edition in the following terms:
“A disjunctive participle used to express an alternative or to give a choice of one among two or more things.”
In the case of Aruba v. Aiyeleru (1993) 3 NWLR (Pt.208) 126 at 141-142 this court in construing the word “or” thus:
“……..The power given to the court under the rule is to either strike out or amend, the word “or” having a disjunctive connotation, It does not give the court the power to strike out and amend…………..”
Also in the case of Abia State University v. Anyaibe (996) 3 NWLR (Pt. 439) 646 at 661 the Court of Appeal per Katsina-Alu, J.C.A (as he then was) held:
“….It is to be noted that twelve months period is separated from the next period following by the word “or”. This word always bears the disjunctive meaning in an enactment, that is to say it separates the provision preceding it from the provision coming after it. Its role is to show that the provisions in which it is appearing are distinct and separate one from the other. In Black’s Law Dictionary Sixth Edition the word “or” is defined inter alia: A disjunctive participle used to express an alternative or to give a choice of one among two or more things.”
Without doubt the word “or” in section 145(1) of the Electoral Act has compartmentalized the grounds in (a), (b) and (e) together and ground (d) on its own. There is good reason for this. A careful reading of section 145(1) would reveal that a petition under subsection (1)(a)(b) & (c) docs presuppose that the petitioner did in fact participate in the election as a contestant. Whereas a petition under subsection (1)(d) does presuppose that the petitioner was excluded from participating in the election as a contestant. I should imagine that a petitioner who did not contest the election would not be heard to complain that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act or that the respondent was not duly elected by majority of lawful voles cast at the election. See also the case of A.N.P.P v. Haruna (2003) 14 NWLR (Pt. 841) 546 at 570. I think it is plain that the ground provided under section 145(1)(d) of the Electoral Act relating to exclusion of a candidate from contesting the election and the three other grounds provided under the same section 145(1)(a), (b) and (e) relating to disqualification, of a candidate who was returned, corrupt practices and non-compliance with the provisions of the Act and failure to secure majority of lawful votes cast at the election are mutually exclusive. Therefore a candidate who did not contest an election cannot legally and logically complain that the election was marred by rigging, corrupt practices, non-compliance with the provisions of the Electoral Act.
The effect in law of a petitioner claiming exclusion under section 145(1)(d) of the Act, is that be has shut himself out from presenting his petition under any of the grounds stipulated in section 145(1)(a), (b) and (c), as none of the grounds can still avail him. This is so because the effect of the exclusion ground, if successful, would render the election void and a fresh election would be ordered pursuant to section 147(1) of the Electoral Act, 2006. Clearly, it will be seen that the ground of unlawful exclusion cannot stand with any other ground as presented in the instant petition. This would be tantamount to approbating and reprobating which the law frowns at.
The petition as it stands is akin to a plaintiff who sues for trespass to a particular piece of land and recovery of possession of the same parcel of land. Both claims are contradictory. See Aromire v. Awoyemi (1972) ANLR 105 at 106, Ibeziako v. Nwagbogu (1972) ANLR 693, Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt. 825) 363). In my judgment, the court below rightly struck out the alternative grounds brought under section 145(1) (a), (b) and (c).
I move now to consider the question whether or not the appellants were excluded from contesting the election. As I have earlier shown in this judgment, the petitioners based this ground on paragraph 15(a) of their petition, which reads thus:
“15(a) The 1st petitioner was validly nominated by the 3rd petitioner but was unlawfully excluded from the election;”
The facts of unlawful exclusion were provided in paragraph 16 of the petition. I think it is pertinent to set out this paragraph. Paragraph 16 states as follows:
“16. FACTS OF UNLAWFUL EXCLUSION
(a) The 1st Petitioner was duly nominated by the 3rd Petitioner as its candidate for the 21st April, 2007 Presidential Election;
(b) Upon the nomination of the 1st Petitioner, the nomination form was duly completed and submitted to the 4th Respondent;
(c) After submission, the 4th Respondent on 28th Day or December, 2006 invited all the candidates including the 1st Petitioner to its screening and verification exercise;
(d) Subsequent to the screening and verification exercise, the 4th Respondent published a statement of the full list of the names of candidates standing nominated pursuant to the Electoral Act;
(e) In the statement of the full names of candidates standing nominated published by the 4th Respondent, the name of the 1st Petitioner was unlawfully excluded.
(f) In addition to sub paragraphs (a) – (e) above, the 4th and 5th Respondents, of different public fora and after nomination had closed, repeatedly declared and stated that the 1st Petitioner was disqualified from contesting the April 21, 2007 Presidential Election and implacably maintained this position until the day of the election.
(g) The Petitioners will contend further that the 4th and 5th Respondents were biased and deliberately failed to give the Petitioners equal opportunity as was given to other candidates to participate in the April 21, 2007 Presidential Election.
(h) The Petitioners will contend that the action or the 4th and 5th Respondents as enumerated in paragraphs (a) – (1) above, was deliberate and effectively excluded the 1st and 2nd Petitioners from engaging in a meaningful and effective contest as a candidate at the election for which he had been validly nominated by the 3rd Petitioner.
PARTICULARS OF UNLAWFUL EXCLUSION
i. The 3rd Respondent by a letter dated 18th January, 2007 actually instigated the events that led to the unlawful exclusion of the 1st Petitioner.
ii. Upon becoming aware of the letter by the 3rd Respondent during the screening, the 1st Petitioner, in his capacity as a nominated candidate, replied, through his Counsel, to the 4th Respondent, informing the 4th Respondent that the allegations made by the 3rd Respondent were unfounded.
iii. The 4th Respondent at no time thereafter reverted to the Petitioners about their response.
iv. On the 7th day of March, 2007, the Federal High Court in Suit No.: FHC/ABJ/CS/03/2007 between Action Congress v. I.N.E.C & Anor. Judgment was delivered by Kuewumi J. in which it was adjudged, amongst others, that the 4th Respondent lacked power to disqualify a candidate of an election and that such power lies with the Court of Law.
The said Judgment shall he relied upon.
v. Thereafter, in defiance of the said Judgment the, 4th Respondent proceeded to publish its official list of candidates excluding the name of the 1st Petitioner. In addition, the said list was posted on INEC website.
vi. A letter was written by the 3rd Petitioner to the 4th and 5th Respondents on the 9th day of February 2007 complaining about the unlawful exclusion of its candidate.
vii. The 4th Respondent replied the Petitioner’s letter on 17th February, 2007 declining to revisit the unlawful exclusion.
viii. Following the insistence of 4th Respondent on the Federal High Court, Abuja in Suit No: FHC/ABJ/CS/152/2007 (Alhaji Atiku Abubakar & Anor vs. I.N.E.C & Anor.) before Tijani Abubakar J., Judgment was delivered on the 3rd day of April, 2007 whereupon it was declared as follows:
“(1) That an order is made directing the Defendants not to exclude the 1st Plaintiff from contesting the election to the office of the President of the Federal Republic of Nigeria.
(2) That if excluded it is hereby ordered that Defendants include the Name of the 1st Plaintiff as the Presidential Flag bearer of the 2nd Plaintiff.
(3) That the Defendants are hereby restrained from excluding the name of the 1st Plaintiff as the Presidential candidate of the 2nd Plaintiff except upon pronouncement by a court of Law.”
The judgment which is still subsisting shall be relied upon at the trial.
ix. Your Petitioners shall lead evidence that in defiance of the Order/Judgment of the Court, the 4th and 5th Respondent persisted in their decision to unlawfully exclude the Petitioners, and Slated that it would only obey Orders made by the Supreme Court.
x. Your Petitioners shall lead evidence that apart from the final list of presidential candidates published by the, 4th Respondent on 15th March, 2007, no further amended, supplementary or modified list of Presidential candidates was published by the 4th Respondent in which the name of the Petitioners were included.
xi. Notwithstanding the fact that the 1st Petitioner was unlawfully excluded the 4th Respondent proceeded to allocate 2, 637, 848 votes to the 1st Petitioner as a candidate in the election.
xii. By reason of the unlawful exclusion, it became practically impossible for the 1st Petitioner to present himself effectively as a candidate at the election and for his supporters to canvass for votes on his behalf.
xiii. The 1st Petitioner was, prior to the election, a two-term Vice President, who had won two (2) previous Presidential Elections, on a joint ticket with the incumbent President, General Olusegun Obasanjo.
xiv. Upon joining the 3rd Petitioner, the 1st Petitioner pulled a substantial followership which stood him in good stead to have won the election but for the 4th Respondent’s acts of unlawful exclusion.
xv. In the course of seeking reversal of his unlawful exclusion, a Judgment of the Supreme Court was delivered on Monday, 16th April, 2007 where it was adjudged that the 4th Respondent had no power to disqualify a candidate in an election without a lawful Court Order.
xvi. Notwithstanding the judgment of the Federal High Court of 3rd April, 2007 and the Judgment of the Supreme Court of 16th April, 2007, the 4th Respondent still refused to restore and/or publish the name of the 1st Petitioner on the list of candidates standing nominated as at Tuesday, 17th April, 2007.
xvii. On Tuesday 17th April, 2007, the 809th Respondent in contravention of the Electoral Act, 2006, and the Constitution of the Federal Republic of Nigeria, 1999 issued an Order prohibiting campaign and public meetings until after the date of the Presidential Election, which Order vas brazenly enforced by the law enforcement agencies.
xviii. By the prohibition order issued by the 809th Respondent, the Petitioners were effectively deprived of the opportunity to undertake their electioneering campaign up to the 20th of April, 2007, when by law campaigns were to cease.
xix. That the party symbol of the 3rd Petitioner as approved by the 4th Respondent was not reflected on the ballot paper used for the April 21, 2007 Presidential Election the object and effect of which was to conclude the Petitioners from a meaningful and effective participation in the election .
At the trial, your Petitioners shall rely on Newspaper publications, video recordings, mobile phone visual recordings, photographs, correspondences, and other forms of communications and other relevant documents exchanged between the parties.”
It must be pointed out that some court judgments were tendered by the petitioners/appellants in an attempt to establish this ground and respectively, there are Exhibits EPT/03/P/4, EPT/03/P/6, that is:
“(i) Certified true copy of judgment and enrolled Order in Suit No. FHC/ABJ/CS/152/2007
(ii) Certified copy of judgment and enrolled order in Suit No. FHC/ABJ/CS/152/2007
(iii) Certified true copy of the judgment of the Supreme Court delivered on Monday 16th April 2007 on the lack of powers of INEC to disqualify candidates.
These judgments, it will be seen clearly, were delivered before the election which took place on 21st April, 2007.. Exhibit EPT/03/P/6 clearly states that the 1st Petitioner/Appellant was not a disqualified candidate. It was a judgment or this court delivered on 16th April, 2007 paving way for the Appellants to participate in the election.
Now, notwithstanding the facts of unlawful exclusion set out in paragraph 16 of the petition, the petitioners in paragraphs 18 and 20 of their petition pleaded facts showing that they participated in the election. The said paragraphs read as follows:
OYO STATE
18(a)(xxii) Voters were intimidated by security officials particularly in Ogbomosho Local Government Area; also, agents of the 3rd petitioner were driven away from the filing units by security agent.
RIVERS STATE
18(a)(XXIV) …………Agents of 3rd petitioner were prevented from observing the conduct of the elections.
ZAMFARA STATE
18(a)(XXIV) As a result majority of eligible Party Agents, particularly those of the 3rd petitioner were deprived the opportunity to observe the conduct of the election
20. Before and during the election, the 5th Respondent exhibited Jets of gross bias with impunity against the person and candidature of the 1st Petitioner …”
It is pertinent at this point to read material parts of the evidence of some of the witnesses called by the petitioners which shows that the petitioners participated in the election:
Alhaji Otamar Shittien
“I am the legal Adviser to Atiku Campaign Office, the campaign outfit of the 1st and 2nd Petitioners … I voted in the Presidential and National Assembly election of 21st April, 2007, The name of my polling station is Kalium Central School in Kalium Ward in Shendam Local Government Area of Plateau State. When I was given the Presidential Ballot Paper, I observed that the symbol reflected thereon is not the symbol as approved by INEC. It does not have two out of the three colours that are associated with the symbol i.e. Green and Black. Many of the voters did not recognize the symbol of Action Congress in the few places where election took place in Plateau State.”
Chief Tony Ikimi:
“I know the 1st Petitioner, Alhaji Atiku Abubakar. He is the leader of our Party and its flag bearer in the just concluded Presidential Election held all the 21st of April, 2007. I know the 2nd Petitioner, Senator Ben Obi. He was the running mate of the 1st Petitioner…I remember the 21st day of April, 2007. On that day was the Presidential and National Assembly Election in Nigeria…. I was appointed collation Agent of the Action Congress to represent the Party at the Final collation of results of the Presidential Elections of April 21, 2007 and to be assisted by Dr. Okwesilieze Nwodo. This was in response to all invitation by INEC to all Political Parties who fielded Presidential candidates in the Elections to send such representatives for the collation of results on Saturday 21 April evening ….. At around 11 a.m. on Sunday April 22, Senator Ben Obi, Vice Presidential candidate of the Action Congress telephoned me conveying to me information he had just received, that collation of results was about to commence at INEC Headquarters but that our Party Agents were not there. I immediately rushed to the venue. Nothing had yet started.”
Senator Ben Obi:
“I am a Senator of the Federal Republic of Nigeria, Representing Anambra Central Senatorial District. I am the 2nd Petitioner in these proceedings and the Vice Presidential Candidate of Action Congress. The first Petitioner was the validly nominated candidate of the Action Congress, the Political Party that nominated us for the Presidential Election held on the 21st of April, 2007. The Party is the 2nd Respondent in these proceedings. The 4th Respondent excluded us in the said election… I remember vividly the events that took place on the day of the election in Anambra State. On the said day, I was ill my hometown, Awka, the Capital of Anambra State to cast my vote. .It was there that I registered as a voter…On April 21, 2007, when the Presidential and the National Assembly Election held, I was in Awka to cast my vote. I made several visits to the polling station where I was supposed to vote but did not see any electoral official or voting materials… It is noteworthy that when AD replaced its deceased Presidential candidate, Chief Adefarati with Chief Pere Ajuwa on or about the 5th of April 2007, the latter’s name was promptly reflected on the INEC list of Presidential candidates and posted in the website. It is therefore not in doubt that we were unlawfully excluded in the questioned election.”
Alhaji Lai Mohammed:
“………… They are the duly nominated candidates of the 3rd petitioner who were unlawfully excluded by the 4th respondent (INEC) from contesting the Presidential Election of 21st April, 2007…… That I followed the materials to my Polling Unit (Bolki Unit 1) in Bolki Ward so as to east my vote:”
Pithon P. Digoli:
“Was the Chairman of the 3rd Petitioner in Numan Local Government and was charged with the responsibility for monitoring the Presidential Election in the Local Government.”
Alhaji Hayahi Magdari
“That I am the LGA collation Agent of the Action Congress representing the Petitioner in this Petition… That I was the one charged with the responsibility of overseeing the distribution of election materials meant for the Presidential Election in Fufure LGA…”
Alhaji Jauro Audu:
“That I am the Party Chairman of the Action Congress in Maiha Local Government representing the 1st Petitioner, in this Petition. ………. That I was the one charged with the responsibility of monitoring the conduct of Presidential Election in the Local Government. I moved around the whole Ward in the Local government Area.”
Mr. Wilson Japhet Fofana:
That I am the LGA collation Agent of Action Congress representing the 1st Petitioner in this Petition. That I was the one charged with the responsibility of overseeing the distribution of electoral materials fixed for the Presidential Election in Numan LGA.”
Alhaji Audu Suleiman:
“That I am the Local Government Collation Agent of the Action Congress representing the Petitioner in this petition that I was the one charged with the responsibility of monitoring and collation of Presidential Election in Shelleng Local Government.”
Dr. Chiebonam Orji:
“That I remember the 21st day of April, 2007. On that day, there was a Presidential and National Assembly elections in Nigeria. I was the Action Congress Party Agent of Enugu North Local Government”
Mr. Emeka Udeh:
“That I remember the 21st day of April, 2007. On that day there was a Presidential and National Assembly Elections in Nigeria. I was the Action Congress Party Agent of Ezeagu Local Government.”
Mr. Hakeem Okedara:
“My names are Mr. Hakeem Okedara. I live at No. 45 Olowu Road, Owu, Abeokuta; I am a Contractor by profession. I am also a Politician. I am a registered member of Action Congress (AC), the 3rd Petitioner in these proceedings. I had from Abeokuta North Local Government of Ogun Stale. I know the 1st Petitioner, Alhaji Atiku Abubakar. He is the leader of our Party and its flag bearer in the just concluded Presidential election held on the 21st of April, 2007. I know the 2nd Petitioner, Senator Ben Obi. He was the running male of the 1st Petitioner. He is also a serving Senator of the Federal Republic of Nigeria. I remember the 21st day of April, 2007. On that day, there was a Presidential and National Assembly elections in Nigeria. I was the AC co-ordinator for Abeokuta North Local Government Area of Ogun State. In my capacity as a co-ordinator, I moved freely around all the polling booths in Abeokuta North on the 21st day of April, 2007 during the Presidentia1/National Assembly Elections.”
In addition, Exhibit EP3/28, a letter by the 3rd Petitioner to the Chairman of INEC, the 4th Respondent dated 19/4/07 reads thus:
19th April 2007
The Chairman
Independent National E1ectoral Commission (INEC)
INEC Headquarters
Plot 436, Zambezi Crescenet
Maitama, Abuja.
INTRODUCING FIVE MAN DELEGATION TO THE NATIONAL ELECTION RESULT COLLATION CENTRE
This is to introduce to you five man delegation that will represent our Party Action Congress (AC) at the National Election Result Collation Center (INEC). They are:
1. Chief Tom Ikimi – Leader of the Delegation
2. Bashsir Dalhatu
3. Chief Yomi Edu
4. Dr. Okwesilieze Nwodo
5. Alh. Lai Mohammed
“Please accept the assurances of our highest esteem.
Alhaji Abubakar Sulaiman
National Admin, Secretary
For: National Secretary.”
It was contended for the 1st Petitioner that the acts of the INEC and its Chairman in initially disqualifying him from contesting the election and placing several hurdles on his path amounted to his exclusion from the Presidential election. The point was stretched further that the petitioner was constructively excluded from contesting the election in breach of section 143(1)(d) of the Act.
I am not impressed with this argument. There is nothing ill section 145(1)(d) that talks of constructive or qualified exclusion. The section provides as follows:
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election”
It is trite law that the court has a duly to interpret a statute or provision thereof by giving them their plain, ordinary and literal meaning except where such all interpretation will lead to manifest absurdity. See National Assembly v. President, Federal Republic of Nigeria (2003) 9 NWLR (Pt. 824) 104; Ray v. Maduabu (2006) All FWLR (Pt. 310) 1637. The provision in section 145(1)(d) of the Electoral Act is clear and unambiguous and does not admit of any meaning resembling constructive or qualified exclusion. The word “exclusion” stands on its own and has been defined to mean “keeping out, barring, prohibited, eliminated, ruled out” – Buhari v. I.N.E.C (2008) 4 NELR (Pt. 1078) 546 at 646. The only plain, ordinary and literal meaning that the said section can be given must be that a petitioner who was validly nominated by his party was excluded from participating in the said election as a candidate of his party. A petitioner can only plead facts to prove that he was excluded after due nomination and did not in fact take part in the election. The law is settled that in order to prove unlawful exclusion after valid nomination by his party, a petitioner must show the following:
(i) that he was validly nominated by his political party.
(ii) that an election was conducted
(iii) that a winner was declared and
(iv) that his name was not included in the list of the contestants.
See Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 206 cited with approval in the case of Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1.
I shall now apply the above principles, to the petitioners’ case:-
(i) VALID NOMINATION BY ACTION CONGRESS: This issue is not in dispute. The 1st Petitioner was validly nominated by Action Congress as its presidential flag bearer sometime in December, 2006 and he campaigned in that capacity until his initial disqualification by INEC and eventual clearance to contest by the Judgment of this court on the 16th April, 2007.
(ii) THAT AN ELECTION WAS CONDUCTED: All the parties agreed that an election into the office of President look place on the 21st April, 2007.
(iii) THAT A WINNER WAS DECLARED: In the petition challenging the 1st Respondent’s return as winner the 1st Petitioner admitted that 1st Respondent was declared winner with 24, 678,063 votes as against 2,637,848 votes scored by him.
(iv) THAT PETITIONER’S NAME WAS NOT INCLUDED IN THE LIST OF CONTESTANTS. This issue is the most important fact to be established by a petitioner alleging valid nomination but unlawful exclusion.
The 1st Petitioner however failed to establish same because:
(a) In paragraphs 16,18(a)(xxii), 18(a)(xxiii) 18(a)(xxiv) and (20) of the petition facts clearly showing acts of participation in the election were clearly pleaded.
(b) facts in these paragraphs clearly showed that Alhaji Atiku Abubakar was a candidate in the said election held on 21st April, 2007. See paragraph 8 of the petition where this fact was admitted.
(c) his nomination was processed as a candidate of tile Action Congress by INEC and he went ahead to participate in the said election.
(c) despite alleged hurdles placed on his path prior to the election, the 1st Petitioner took part in the election and came a distant 3rd with 2,637,648 votes.
Further to the above and more fatal to the petition was the fact that no attempt was made to plead facts to show that the 1st Petitioner’s name was not included in the list of candidates and logically too, none of the petitioner’s name witnesses led evidence to prove this vital ingredient at the hearing. The onus of proof of valid nomination and unlawful exclusion from an election is squarely on the petitioner: Sec Effiong v. lkpeme (supra).
I think the position would have been different if the petitioners had pulled out of the contest in protest against the hurdles placed on their path. They did not do so and the evidence placed before the Court of Appeal showed that the candidate and his party took part in the election as contestants for the office of the President. The 1st petitioner approbated and reprobated by his decision to also challenge the election on the mutually exclusive grounds under section 145(1)(a)(b) & (c) of the Act thereby impliedly acknowledging his participation ,in the election where he came a distant 3rd with 2,637,848 votes.
In my judgment, therefore, the appellants were not excluded in participating in the Election held on 21st April, 2007. This issue disposes of the appeal. That being so, I do not deem it necessary to consider the other issues raised in the appeal. In the result, the appeal fails and I dismiss it. I affirm the judgment of the Court of Appeal delivered on the 26th day of Fcbruary, 2008. I make no order as to costs.
KUTIGI, CJN: The Independent National Electoral Commission (4th Respondent) organized and conducted an election into the office of the President of the Federal Republic of Nigeria on 21st April, 2007. At the end of the election, the 1st Respondent was declared winner. The 1st Respondent cored 24, 638,063 votes while the 1st Petitioner scored only 2,637,848 votes.
The Petitioners were dissatisfied with the result of the election and challenged it by filing their Petition on the following grounds as contained in paragraph 15 of the said Petition –
“15. The grounds on which the Petition is based are-
(a) The 1st Petitioner was validly nominated by the 3rd Petitioner but was un lawfully excluded from the election:
ALTERNATIVELY THAT:
(b) The election was invalid by reason of corrupt practices;
(c) The election was invalid for reasons of non-compliance with the provisions of the Electoral Act, 2006 as amended; and
(d) The 1st Respondent was not duly elected by majority of lawfully Votes cast at the April 21, 2007 Presidential election”.
At the trial both sides, Petitioners and Respondents, relied on sworn testimonies of their witnesses and several documents tendered by consent from the Bar. They also submitted and relied on their written addresses in compliance with the order of court.
The Petitioners in their written address submitted the following five issues for determination, namely-
“1. Whether or not a case of unlawful exclusion from the participating in the Presidential Election of 21st April, 2007 has been made out by the Petitioners.
2. If the answer to the above is in the affirmative, whether or not the election should not be set aside having regards to the provisions of section 147(1) of the Electoral Act, 2006.
3. If the answer to issue 1 is resolved against the petitioners and the Court finds that the petitioners were not unlawfully excluded at the said election, whether or not the election should be set aside for non-compliance with the provisions of the Electoral Act 2006 and also for corrupt practices as set out in paragraphs 17 and 18 of the Petition.
4. Whether or not section 146(1) of the Electoral Act 2006 can be applied to validate the said election in spite of the various acts of non-compliances and corrupt practices discussed in issue No.3 above.
5. Whether or not a case has been made out by the petitioners for the prosecution of the 5th Respondent, and other erring officials of the 4th Respondent and the prohibition of the 5th Respondent from participating in the conduct of future elections in the country. ”
The trial Court of Appeal considered all the issues and came to the conclusion that the issues had not been established. It accordingly dismissed the Petition.
The Petitioners, aggrieved by the decision of the trial court have now appealed to this Court. In their brief of argument, they have submitted nine issues for resolution. I do not need to set them out here. It is sufficient to observe that it is very clear to me that after the Court of out the ALTERNATIVE grounds (b) (c) and (d) of the Petition above, the only and single issue left for that Court to resolve is the surviving substantive ground (3) which is “whether the Petitioner was validly nominated by the 3rd Petitioner but was unlawfully excluded from the election.” Embedded in the issue is the question of whether or not the Court of Appeal was right to have struck out ALTERNATIVE grounds in the Petition as having offended section 145(1) of the Electoral Act, 2006.
The first pertinent issue for the Court of Appeal to resolve was whether or not the Petition itself was incompetent for the reason that the ground of unlawful exclusion was raised along with other grounds as alternatives contrary to the provisions of section 145(1) of the Electoral Act, 2006. This incidentally has also become a very important issue before this Court now. The trial court after thoroughly analyzing submissions of counsel concluded thus-
“Learned Senior Counsel for the Petitioners confused reliefs sought in an election Petition and grounds therein, which in our humble view are distinct while reliefs or prayers can be made in the alternative, in an election petition, a ground of exclusion cannot be made in the alternative with other grounds. A ground of exclusion in an election petition stands clearly on its own. It is mutually exclusive of other grounds. It is crystal clear that from the foregoing that the Petitioners are approbating and reprobating at the same time. This should not be allowed since it is frowned at by the law.
Accordingly this issue is resolved in favour of the Respondents against the Petitioners. We find that having relied on the ground of valid nomination and lawful exclusion, the Petitioners are, ordinarily, precluded from relying on any other ground under section 145(1) of the Electoral Act, 2006 and the alternative grounds ought to be struck out”.
I agree. The Court of Appeal rightly in my view struck out the alternative grounds in the Petition.
The Court thereafter proceeded to consider the next salient issue before it having struck out ALTERNATIVE, grounds. The issue was whether the Petitioners were excluded from participating in the Presidential election. This is the only ground left for challenging the Presidential election as I have shown above. Again after going through the submissions of Counsel, the Court of Appeal in its judgment said as follows –
“Exclusion means keeping out, barring prohibited, eliminated, ruled out. The Petitioners, from their own showing in their pleadings, evidence of their salient witnesses as depict earlier on in this judgment, as well as their conduct after the judgment of the Supreme Court on 16th April, 2007, cannot be beard to say that they have been excluded from the Presidential Election. They were not excluded; they were included and actively participated in the election. This issue is accordingly resolved against the Petitioners and in favour of the Respondents.”
Once more, I agree with the decision of the Court of Appeal. The Court is right. The Petitioners were never excluded from participating in the election. They actively took part.
Having resolved the above two issues against the appellants, there is clearly no more live issue to be considered in the appeal. It is for the above reasons and those ably stated in the lead judgment of my learned brother Katsina-Alu, J.S.C. that I agree to dismiss the appeal. The appeal is unmeritorious. It woefully failed. It is accordingly dismissed with no order as to costs. The judgment of the Court of Appeal is affirmed.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C: This is an appeal against the judgment of the Court of Appeal, Abuja Division, (sitting as the Presidential Election Tribunal) in petition NO.EP.3/2/07 delivered on the 26th day of February, 2008 in which the court dismissed the petition of the petitioners/appellants resulting in the instant appeal.
The 1st and 2nd appellants were the duly nominated and sponsored candidates of the 3rd appellant for the Presidential election into the office of the President and Vice President of the Federal Republic of Nigeria held on the 21st day of April, 2007 at the end of which the 1st and 2nd respondents, the candidates nominated, and sponsored by the 3rd respondent, the Peoples Democratic Party (PDP) were, on the 23rd day of April, 2007 declared elected by the 4th , 6th respondents as the President and Vice President of the Federal Republic of Nigeria. The appellants were aggrieved with the return of the said 1st and 2nd respondents and consequently petitioned the Presidential Election Tribunal/Court calling for the nullification of the said election on the following grounds:-
“(a) The 1st petitioner was validly nominated by the 3rd petitioner but was unlawfully excluded from the election.
ALTERNATIVELY THAT:
(b) The election was invalid by reason of corrupt practices;
(c) The election was invalid for reason of non-compliance with the provisions of the Electoral Act, 2006 as amended.
(d) The 1st respondent was not duly elected by the majority of lawful, votes cast at the April, 21, 2007 Presidential Election.”
And claimed the following reliefs:-
“1. It may be determined that the Presidential Election of 21st April, 2007 be voided for unlawful exclusion of the 1st and 2nd petitioners who were duly nominated by the 3rd petitioner as its candidate at the Presidential election.
ALTERNATIVELY THAT:
2. It may be determined that Alhaji Umaru Musa Yar’adua who was returned by the 4th – 6th respondents as the President elect based on the Presidential Election held an 21st April, 2007 was not duly elected (or returned) and his election is therefore void.
3. It may be determined that the said Presidential election held an 21st April, 2007 be annulled for non-compliance with the provisions of Electoral Act, 2006, which non-compliance had substantially affected the result of the election.
4. It may be determined that the said Election be invalidated or annulled by reason of corrupt practices.
5. It may be determined that a fresh election be conducted into the office of the President of the Federal Republic of Nigeria, in accordance with section 147 of the Electoral Act, 2006 at which the 1st and 2nd petitioners shall be made contestants.
6. It may be determined that the 5th, 7th – 42nd respondents as officials of the 4th respondent, who directly and negligently misconducted the April 21, 2007 Presidential Election in contravention of the provisions of the Electoral Act, 2006 be recommended for criminal prosecution by the Attorney-General pursuant to section 157 of the Electoral Act, 2006.
7. It may be recommended that the 5th, 7th – 42nd respondents who supervised and/or misconducted the April 21, 2007 Presidential Election be prohibited from participating in the conduct of the fresh election which may be ordered in consequence of this petition.
As stated earlier in this judgment the petition was dismissed in a judgment delivered on the 26th day of February, 2008 resulting in the instant appeal, the issues for the determination of which have been stated by the Learned Senior Counsel for the appellants Prof. Ben Nwabueze, SAN in the appellants’ brief of argument filed on the 19th day of May, 2008 as follows:-
“1. Whether after its ruling on 20th September, 2007, the lower court, in its judgment delivered on 20th February, 2008, was not in error to have re-opened consideration of the issue that the petition in its entirely was incompetent and that 5th respondent was wrongly joined in the petition (Grounds 2, 3, and 4).
2. Whether the lower court is right in holding, firstly, that the 1st petitioner was not unlawfully excluded from the election and, secondly, that, having pleaded unlawful exclusion, he cannot question the election on any other ground (Grounds 5,7,9,10,14 and 15).
3, Whether the judgment on appeal to this court is not vitiated by the lower court’s use of section 146 of the Electoral Act, 2006 to shield from invalidity, various in fractions of the Act, including cases of non-compliance amounting to corrupt practice, non-compliance with the provisions relating to ballot papers and to the voters’ register. (Grounds 11, 18, 20, 21, 34, 35 and 36).
4. Whether the decision of the Court of Appeal striking out the name of the 5th respondent on the ground that he is not a juristic personality is correct having regard to, the pleadings, evidence and entire circumstances of the petition (Ground 6).
5. Whether the Court of Appeal rightly deemed. The 1st respondent as having been duly elected President of the Federal Republic of Nigeria by majority of valid lawful votes of 24,638,063 in the face of the three conflicting “final” results of the election which the 4th and 6th respondents were unable to explain or reconcile by their pleadings or by evidence at the trial (Grounds 1, 23, 24, 25 and 38).
6. Whether the allegations of apparent similar handwriting on documents tendered by consent can only be established by calling expert handwriting analyst, when respondents offered no explanation beyond bare denial through unnamed, un-sworn witnessed, who were not the authors of the said documents (Ground 19).
7. Whether the decision of the Court of Appeal to the effect that the petitioners did not specifically identify any police officer or soldier who participated in the conduct of the election was correct having regard to the admission on record, pleadings and evidence (Ground 22).
8. Whether or not the failure of the Court of Appeal to consider the validity and admissibility of all the witness statements of the 1st and 2nd respondents and some of those of the 4th – 808th respondents occasioned a miscarriage of justice (Ground 31).
9. Whether or not the total failure of the Court of Appeal to evaluated and pronounce upon the evidence elicited from the 5th respondent by way of answers to the administered interrogatories occasioned a miscarriage of justice (Grounds 27, 28, 29, 30 and 32).
10. Whether this is not a proper case for the Supreme Court to invoke section 22 of the Supreme Court Act to invalidate the elections in of view of:
(i) failure of the Court of Appeal to evaluate evidence on vital issues rating to delivery and supply of ballot papers;
(ii) disregarding petitioners submissions on thousands of exhibits that supported petitioners as highlighted in schedules 1 – 25 incorporated into their final addresses;
(iii) failure of the Court of Appeal to properly evaluate and pronounce on evidence led by the petitioners in their witness statements and ascribing;
(iv) allowing extraneous political considerations to affect their judgment to the prejudice of the petitioners. (Grounds 17,18,26,33,37 and 39);
(v) disallowing the petitioners’ independent witness on subpoena from testifying on ground that their depositions were not front-loaded at the time of filing of the petition. (Grounds 1, 2 and 4 of interlocutory appeal).”
In arguing Issue 1, the Learned Senior Counsel for the appellants, Prof. Ben Nwabuseze, SAN in the appellant brief of argument filed on 19/5/08 and adopted in argument of the appeal on the 23rd day of October, 200S referred to the ruling of the lower court delivered on the 20th day of September, 2007 allegedly overruling the preliminary objections of the 1st and 2nd respondents and that of 4th – 808th respondents as to the competence of the petition and the pending appeal by the respondents in respect of that ruling and the re-opening of the issues so ruled upon by the court at the final address stage of the proceedings before the lower court as well as the stand taken by that court on the said issues earlier ruled upon and submitted that the lower court usurped the exclusive appellate jurisdiction conferred on the Supreme Court by section 233(1) of the 1999 Constitution to hear appeals from the decisions of the Court of Appeal and that the lower court, in addition to the above violation, violated the provision of Order 8 Rule 11 of the Supreme Court Rules, 1985 as amended prohibiting the lower court from entertaining any matter that has been properly and duly entered before this court; that by dismissing the objections that court became incompetent to re-open consideration of the issues in the final judgment as the court had become functus officio, relying on Ukong v. Udobong (2007) 2 NWLR (Pt. 1077) 184; Anyaegbunam v. A-G, Anambra State (2001) 6 NWLR (Pt. 710), 532; Onyemobi v. President, O.C,C (1995) 3 NWLR (Pt. 381) 50; Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1; Mohammed v. Husseine (1998) 14 NWLR(Pt. 584) 108; Lawal v. Dawodu (1972) 1 ALL NLR 707 etc; that once an issue has been raised and distinctly decided between the parties, neither party can be allowed to fight the issue again, whether in the same or subsequent proceeding relying on Cardozo v. Daniel (1986) 2 NWLR (Pt. 20) 1; Ebba v. Ogodo (2000) 10 NWLR(Pt. 675) 387 at 406; Yusuf vs. Obasanjo (2005) 18 NWLR (Pt. 956) 96 at 187 and urged the court to resolve the issue in favour of the appellants.
On his part, Learned Senior Counsel for the 1st and 2nd respondents; Chief Wale Olanipekun, SAN in the 1st and 2nd respondents brief of argument filed on 14/7/08 submitted that the issues raised in the preliminary objection were not considered by the lower court on the ground that same were better resolved during the hearing of the substantive matter- Learned Senior Counsel referred the court to the ruling of the lower court at pages 4749-4750 of the record; that the principles of issue estoppel relied upon by the appellants do not apply to the facts of this case and that the case of Cadoso v. Daniel supra is irrelevant for the determination of this appeal and urged the court to resolve the issue against the appellants.
On behalf of the 3rd respondent, it was submitted by the Learned Senior Counsel for the 3rd respondent Chief Joe-Kyari Gadzama. SAN in the brief of argument filed on 5/8/08 that the principles of issue estoppel do not apply to this case as the lower court did not decide the merit of the objections raised against the petition reserving same to the final determination of the petition, and urged the court to resolve the issue against the appellants.
The Learned Senior Counsel for the 4th – 808th respondents Kanu Agabi, SAN in the brief of argument deemed filed on 25/9/08 referred to ruling of the lower court and stated that:
(i) The lower court took the view that the application was not made within reasonable time, and, (ii) That at that interlocutory stage, the court was not going to delve into matters which called for determination in the main case; that there was no decision on the issues raised by the respondents in the objections; that the lower court was therefore not functus officio when it finally determined the issues as raised by the parties in the final addresses in the petition; that the principles of issue estoppel do not equally apply to the facts of this case and like his learned friends for the other respondents, urged the court to resolve the issue against the appellants. The facts relevant to this Issue under consideration are as follows:
On the 3rd of September, 2007 the Learned Senior Counsel for the 4th – 808th respondents filed an application by way of preliminary objection in the lower court praying that the petition be stuck out or in the alternative:
“(i) An order striking out the 2nd petitioner, Senator Ben Obi and pursuant thereto, an order striking out all paragraphs of the petition including the grounds and prayers relating to him, touching or concerning him and in particular paragraphs 1,2,3, prayers 1 and 5 and 2nd petitioners’ name, signature and address at the foot of the petition.
(ii) An order striking out the 5th respondent Professor Maurice Maduokalam Iwu, and, pursuant thereto, an order striking out all paragraphs of the petition including the grounds and the prayers containing allegations against the 5th respondent, touching or concerning him or seeking reliefs against him and in particular paragraphs 5,6,8,13,1 (f)(g)(b), 16(1X); 17(XXV), 17(XXVI), 18, 19, 20 (a)(b)(c) and 28 and prayers 6 and 7 of the petition.
(iii) An order striking out the grounds in support of the petition because they are inconsistent with the pleadings of the petitioners and are speculative and fishy.
(iv) An order striking out the prayers of the petitioners because they are unsupported by the grounds of the petition, are speculative, contradictory, inconsistent and fishy.”
The grounds on which the application/objection was based are stated as follows:
“(a) The 2nd petitioner Senator Ben Obi, is not a necessary party and the court has no jurisdiction to grant him any reliefs.
(b) The 5th respondents Professor Maurice Moduakolam Iwu, is not a juristic person within the contemplation of the constitution of the Federal Republic of Nigeria, 1999 or the Electoral Act, 2006 and cannot be sued in his personal name nor has the court any jurisdiction to grant the reliefs sought agonist him.
(c) The petitioners have no locus standi to present this petition having said that they were excluded from the election.
(d) The grounds submitted in support of the petition are speculative, inconsistent and fishy and cannot be sustained.
(e) The prayers of the petitioners are speculative, inconsistent, and fishy and are not sustained by the grounds submitted in support of the petition.
(f) The court has no jurisdiction to entertain the petition once shorn of all contradictions, inconsistencies and irrelevancies.”
On the other hand, the Learned Senior Counsel for the 1st and 2nd respondents, Chief Wole Olanipekun; SAN filed his objection on the 13th day of September 2007 praying the court for the following reliefs:
“1. An ORDER striking out the entire petition for being incompetent and a nullity.
OR IN THE ALTERNATIVE
2. AN ORDER striking out the 5th respondent, Professor Maurice Moduokolom Iwu from this petition.
3. Pursuant to prayer supra AN ORDER striking out all paragraphs of the petition where allegations have been mode concerning the said 5th respondent and/or all paragraphs of the petition relating to or concerning him including paragraphs 5,6,8,13,16(f)(g)(b)(ix); 17(xxv)(xxvi); 9, 20 and 23, AND prayers 2, 6, & 7.
4. AN ORDER striking out paragraphs 15(0) of the petition dealing with unlawful exclusion of the 1st petitioner from the election, as well as the entire paragraph 16 dealing with facts of unlawful exclusion in the said petition, as well as prayer 1 thereof.
5. In the alternative to 3 supra, AN ORDER striking out paragraph 15(b),(c) and (d) of the said petition, as well as prayers 2,3,4,5, 6,1, and 7.”
The grounds of the objection were stated thus:-
“(i) The petition was endorsed on the ground of unlawful exclusion for the presidential election of 21/4/07 pari passu, with other grounds under section 145(1) of the Electoral . Act, 2006.
(ii) The petitioners’ petition consisting of the ground of valid nomination but unlawful exclusion alongside other grounds is speculative, contradictory, incurable to which this honouroble tribunal lacks the jurisdiction to entertain.
(iii) The 5th respondent, Professor Maurice Moduakalam Iwu is not a juristic person within the conducts and contemplation of the Electoral Act, 2006.
(iv) The 5th respondent, Professar Maurice Maduakalam Iwu cannot be sued in his personal name as a respondent in an Election Petition.
(v) petitioner who in paragraph 3 of the petition claimed to have been sponsored by the 3rd petitioner to contest the election cannot ground his election petition, on exclusion from can testing the election having pleaded as, scoring 2,637,848 votes at the election.
(vi) This honourable court has no jurisdiction to entertain the grounds and facts relating to the 1st petitioner’s exclusion as pleaded in paragraphs 15(a) and 16 of the petition.
(vii) 1st and 2nd petitioners who claimed to have been excluded from the election cannot challenge the result of the election on any other ground, particularly on the ground listed in paragraph 15(b)(c)(d), except on the sale ground of exclusion.
(viii) By virtue of paragraph 15(a) of the petition, paragraph 15(b)(c) and (d) and prayers 2,3,4,5,6,1, and 8 become academic and abusive of the process of court.
(ix) This honaurable court lacks the jurisdiction to entertain paragraphs 15(a) and 16 and/or at the same time entertaining paragraph 15(a), (c) and (d).”
I have had to go into these details so as to enable us put the issues in proper perspective as the ruling of the lower court on the objections, which were consolidated by that court, is said to have rendered that court functus officio and that the principles of issue estoppel apply to the facts of this case thereby robbing that court the jurisdiction to reconsider the issues again in its judgment following the final addresses of counsel. The prayers on the motion papers, the grounds on which they were based and the decision of the court thereon will surely and easily determine the issue as to whether the lower court, after taking the decision it did in its ruling of 20/9/07 became functus officio and that the resolution of the issues involved in the objections estopped the lower court from reconsidering the issues in its final judgment after they had been reargued by counsel in their final addresses.
The ruling of the lower court, which gave rise to the issue under consideration, is very short and can be seen at pages 4529 – 4530 of the record. It is as follows:
“I have listened to the arguments of counsel on all sides in these two applications to strike out the petition far incompetence and lack of jurisdiction or in the alternative to strike out some paragraphs and reliefs in the petition.
Both applications must be refused for the following two reasons.
(i) Paragraph 49(2) of the 1st schedule to the Electoral Act, 2006 provides that on application of this nature shall not be allowed unless made within a reasonable and when a party making it has not taken any fresh step in the proceedings.
In this case the applicant’s have join issues with the petitioners/respondents on all complaints made in the petition. They are therefore caught by this provision.
(2) It is trite law that in interlocutory stage issues that call for determination in the main case should be avoided. The issues of joinder and inconsistent claims are not jurisdictional matters but mere irregularities, which can be sorted at the hearing of the petition. I see no proper challenge of jurisdiction in the two applications. This court has full jurisdiction to entertain the petition to enable all parties to ventilate their cases on merit.”
The question is whether from the ruling reproduced above in extenso, it can be properly said that the lower court decided the issues calling for determination in the two motions earlier reproduced in this judgment thereby rendering that court incompetent to re-open the matter in its judgment.
It is very clear from the above ruling that the lower court took the considered view that:
(a) the applications were not made within a reasonable time, and.,
(b) that it is settled law that at the interlocutory stage “the court is not to delve into matters which call for determination in the substantive case as issues had been duly joined on the issues in-controversy between the parties in their pleadings.
I am of the considered view that the ruling of the lower court supra did not go into the merits of the issues raised in the applications but merely deferred the decision thereon to the final determination of the issues as joined in the pleadings in the judgment of the court on the merits of the petition to come at the conclusion of hearing/trial. That being the case I do not agree with the submission of the Learned Senior Counsel for the appellants that having taken the decision the court did in the aforesaid ruling, the court became functus officio in respect of the issues not decided by that court in the ruling in issue. It is my view that the lower court can only became functus officio in relation to its decision as to the timorousness of the presentation of the applications and the issue as to whether a court can pronounce on the merits of a case at the interlocutory stage of the proceedings. The two issues not being the issues re-opened before the lower court in the final addresses of the parties, they become very irrelevant and cannot constitute issue estoppel as known to law.
I therefore agree with the lower court that:
“It should be reiterated that the issues of exclusion of the petitioners and the juristic personality of the 5th respondent were never determined in the ruling handed out on 20th September,2007. It is extant in the stated ruling that substantive issues were ordered to be taken on merit at the hearing of this petition. In effect, estoppel does not avail the petitioners. The objection is hereby overruled. And we hereby proceed to determine all deserving issues contained in the petition.”
I therefore resolve Issue 1 against the appellants.
On Issue 2, which is whether the lower court is right in holding, firstly, that the 1st petitioner was not unlawfully excluded from the election and, secondly, that, having pleading unlawful exclusion, he cannot question the election on any other ground, the Learned Senior Counsel for the appellants submitted that fairness in an election requires that participation in the election is on the basis of equality of treatment by the authorities with none being subject to unfair restrictions or have “hurdles” put on his way etc; that, where any of the elements of fairness are lacking, an election conducted in such circumstance is invalid-particularly where “hurdles” are put on the way of a candidate by the authorities; that the dictionary meaning of the word “exclusion” should not be considered in this case, the issue being whether by the hurdles which the lower court admitted were placed on the way of the 1st petitioner, the 4th respondent (INEC) accorded the 1st petitioner equality of treatment with the 1st respondent and other candidates; that if the 4th respondent did not maintain a level playing field for all the candidates, as found by the lower court, the election is thereby invalidated “irrespective of whether or not the 1st petitioner was technically “excluded” according to the lower court’s definition of the word “exclusion”; that an election is not a day affair but a process spanning a period of time and comprising a series of actions; that despite having attended the 4th respondents verification/screening exercise as the candidate of the 3rd petitioner the 1st petitioner’s name was unlawfully excluded in the list of candidates for the election published by the 4th , respondent as evidenced in exhibits EPT/03/16 and 18; that despite Federal High Court judgments in favour of the 1st petitioner, the 4th respondent continued to excluded the name of the 1st petitioner from the list of candidates for the election; that even the decision of this court on 16th April, 2007 did not mitigate the situations as the 4th respondent continued to exclude the 1st petitioner from a meaningful and effective participation by continuing to omit this name from the list of candidates; that the serious nature of the hurdles placed on the way of the 1st petitioner by the authorities for several months during the process of the election until the day of polling in which the 1st petitioner was allowed to participate as a nominal candidate distinguishes exclusion in this case from exclusion in other cases such as Effiong v. INEC (2004) ALL FWLR (Pt. 210) 1312; and PPA v. Saraki (2007) 17 NWLR (Pt. 1064) 453 and urged the court to give effect to the principle of fairness, epitomized by the equality of treatment of candidates, as the principle governing the validity of election to an elective public office and to hold that the hurdles placed on the way of the 1st petitioner by the authorities deprived the 21st April, 2007 presidential election of its fundamental and essential element of fairness and therefore rendered same null and void; and, urged the court to nullify the said election and set aside the decision of the lower court.
On the sub-issue as to whether, having pleaded unlawful exclusion, the 1st petitioners cannot question the election on any other ground, the Learned Senior Counsel submitted that the issue can be determined by a close examination of and interpretation of the words used in section 145(1) of the Electoral Act, 2006 and by reference to judicial decisions.
Referring to the case of Metal Construction (WA) Ltd v. Aboderin (1998) 8 NWLR (Pt. 563) 538; Newbreed Organisation Ltd v. Erhomo Sele (2006) 5 NWLR (Pt. 974) 499 at 544; Help (Nig) Ltd v. Silver Anchor (Nig) Ltd. (2006) 5 NWLR (Pt. 972) 196 at 222; v. (Nig) Ltd v. Taisli WA ltd (2006) 15 NWLR (Pt. 1003) 533 at 555; Order 26 Rules 12(1) & (3) of the Federal High Court (Civil Procedure) Rules 2000 etc; the Learned Senior Counsel for the appellants submitted that it is settled law that either party to an action may, in a proper case, include in his pleadings, alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly; Learned Senior Counsel admitted that the above cases do not constitute authority for the interpretation of section 145 (1) of the Electoral Act, 2006 as they are not election matters; that even the election cases such as Ngwu v. Niba (1999) 3 NWLR (Pt. 595) 400; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1; A.N.P.P v. Haruna (2003) 14 NWLR (Pt. 841) 546; Falae v. Obasanjo (1999) 6 NWLR (Pt. 605-608) 283 are not binding as precedent since they are not based on the issue under consideration – whether unlawful exclusion can be claimed together with or in alternative to other grounds; that in view of the above, the issue has to be determined on the basis of the interpretation of the words used in section 145 (1) of the Electoral Act, 2006.
The Learned Senior Counsel submitted that the word “or” though appearing at the end of paragraph (c) of section 145(1), it governs all the paragraphs of the sub-section, and that its interposition between paragraphs (c) and (d) is to avoid undue repetition; that the above being the case, the word “or” is conjunctive, not disjunctive; that the phrase” any of the following grounds” appearing in the first line of section 145(1) is significant and determinative as regards the question whether a petitioner is limited to just one, but not more than one, of the four grounds specified in section 145(1); that the words control the meaning of the word “or”; that the word “any” does not mean only one or a number of things but “every or all”; that ” any of the following grounds” in section 145(1) means that an election may be questioned on one or more or all of the grounds specified in the sub-section either together or in the alternative; and urged the court to resolve the issue in favour of the appellants.
On his part, the Learned Senior Counsel for the 1st and 2nd respondents referred to the facts pleaded in paragraph 15(a) of the petition and the judgment of this court delivered on 16/4/07 – exhibit EPT/03/P/6 which clearly stated that the 1st appellant was not a disqualified candidate and submitted that the way was thereby paved for 1st appellant’s participation at the said election of 21/4/07 and that the facts pleaded in paragraph 15(a) of the petition became irrelevant in challenging the result of the election on the ground of unlawful exclusion because, according to Learned Senior Counsel, the words of section 145(1) are very clear, simple and free from ambiguity and should be given their ordinary meaning, relying on Awolowo v. Shagari (1979) 6-9 SC; that a candidate who contested an election, as the 1st appellant in this case cannot ground his petition under section 145(1) (d) of the Electoral Act, 2006; that grounds for challenging an election must fall within the grounds stated in section 145(1).
The Learned Senior Counsel submitted that the ground provided under section 145(1) (d) and the other grounds under section 145(1) (a), (b) and (c) are mutually exclusive; that the use of the word “any” in section 145(1) is to give the petitioner only an opportunity to pick from one of the grounds listed in section 145(1)(a)(b) and (c) and that the word “or” also used therein demarcates the list in the said section 145(1)(a)(b) and (c) from section 145(1)(d) as the word “or” is disjunctive relying on Arubo vs. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 141-142; Abia State University v. Anyaibe (1996) 3 NWLR (Pt. 439). 646 at 661; that there is nothing like constructive exclusion or technical exclusion under section 145 (1) (d) of the Electoral Act, 2006 and urged the court to resolve the issue against the appellants and dismiss the appeal.
In arguing the Issue, the Learned Senior Counsel for the 3rd respondent CHIEF JOE-KYARI GADZAMA, SAN referred to section 145(1) of the Electoral Act, 2006 and submitted, just like Learned Senior Counsel for the 1st and 2nd respondents did, that under subsection 145(1) (a) – (c) a petitioner may plead any or all of the grounds of the subsection but cannot plead those grounds in addition to ground (d) of the subsection; that the word “or” used in subsection (1) of section 145 is disjunctive in the con in which is used; that whereas grounds (a) (b) and (c) of subsection 145(1) of the Electoral Act, 2006 can be pleaded collectively in the alternative, ground (d) on the other hand is separate and on its own; that the authorities cited and relied upon by the Learned Senior Counsel for the appellants do not support their case as the interpretation of the word “any” in those cases support the case of the respondents and urged the court to affirm the decision of the lower court on the issue.
On his part, the Learned Senior Counsel for the 4th – 808th respondents Kanu Agabi, SAN submitted in line with his learned friends for the 1st and 2nd and 3rd respondents; that the word “or” as used in section 145(1) is not conjunctive but disjunctive. However, the Learned Senior Counsel for the 4th – 808th respondents submitted in addition that section 145(1) of the Electoral Act, 2006 does not admit of partial participation in a presidential election; that either a petitioner was a candidate or not; that facts disclosed in evidence show clearly that the 1st appellant was not excluded from the election, in question but actively participated therein and urged the court to resolve the issue against the appellants.
Section 145 of the Electoral Act, 2006 provides as follows:
“145(1) An election may be questioned an any of the fallowing grounds,
(a) that a person whose election, is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not elected by majority of lawful votes cast at the election, or;
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
The question is, what does the provision of section 145(1) mean To answer the question, it is necessary to take a closer look at the Interpretation Act particularly section 18 (3) thereof where it is enacted as follows:
“The word “or” and the word “other” shall, in any enactment be construed disjunctively and not as implying similarity.”
It is the case of the appellants’ that the word “or” in the con of section 145(1) of the Electoral Act, 2006 connotes conjunctive act or is conjunctive, not disjunctive. The question is which of the versions one should follow I hold the considered view that we “must follow the law as laid down by the legislature in section 18(3) of the Interpretation Act supra. By applying the said provision, section 18(3) of the Interpretation Act to section 145(1) of the Electoral Act, 2006, it is very clear that the word “or” appearing after paragraph (c) thereof is disjunctive, dividing grounds (a), (b) and (c) on the one hand from ground (d) thereby showing clearly that grounds (a) (b) and (c) of section 145(1) of the Electoral Act, 2006 can be plead collectively or in the alternative while ground (d) stands on its own and cannot be pleaded either together with (a)(b) and (c) or as an alternative to (a) (b) and (c). In the case of Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 141 – 142 this court construed the word “or” as follows:
“……the power given to the court under the rule is to either strike out or amend, the word “or” having a disjunctive connotation. It does not give the court power to strike out and amend…”
I agree with the submissions of Learned Senior Counsel for the respondents that the word “or” used in section 145(1) of the Electoral Act, 2006 introduced an alternative ground to grounds (a) (b) and (c) and that a petitioner who grounds his petition on (d) cannot plead grounds (a) (b) and (c) either in addition or as an alternative to ground. (d) It stands to reason that a ground of valid nomination but unlawful exclusion cannot stand side by side with any other ground mentioned in section 145(1). Where the ground of valid nomination but unlawful exclusion is pleaded together with the other grounds or in the alternative thereto the petition becomes speculative as a petitioner cannot be heard to complain of what transpired at an election when he was not a participant therein – such a petition is clearly speculative as it approbates and reprobates at the same time and ought not to be encouraged. How can a candidate who never participated in an election be heard to complain that the election, which he did not participate in, was marred by non-compliance with the provisions of the Electoral Act, 2006 and electoral malpractices as it is only a candidate at an election that has the locus standi to challenge the result of the election by an election petition. The words used, in section 145(1) of the Electoral Act, 2006 are very clear and very unambiguous and therefore need no interpretation by the court.
The sub-issue to the above is whether the 1st appellant was excluded from the election of 21st April, 2006. The appellants pleaded that the 1st appellant was excluded from the election though validly nominated as candidate for same by the 3rd appellant – see paragraphs 7, 15(a)(b), and (e); 16(h)(i), 16(b)(v); 16(h)(vi), 16(h)(vii), 16(h)(x), 16(h)(xi), 16(h)(xvi)
However in paragraphs 18(a)(xxii), 18(a)(xxiii), 18(a)(xxiv)9, 20 etc, the appellants pleaded facts of their participation in the election. When one looks closely at the pleadings and evidence of the appellants and the submission of the Learned Senior Advocate for the appellants, it is clear that what the appellants are complaining about is really the absence of a level playing field for the candidates at the election in issue particularly as it relates to the appellants – that there was no equality of treatment of the candidates by the authority that be thereby making the participation of the 1st appellant of no meaningful impact. It should be noted that the lower court did find as a fact that obstacles were deliberately put on the way of the 1st appellant to the election in issue. I hold the view that the lower court was right in that finding as the same is supported by the evidence.
However, the issue is whether the placement of these obstacles, objectionable as they are, amounts to non-participation or exclusion of the 1st appellant from participation at the election. It should be noted that the judgment of this court came less than one week to the election. Can all these amount to exclusion as provided for under the Electoral Act, 2006
The word “exclusion” is not defined in the Electoral Act, 2006. However, Websters’ New Twentieth Century Dictionary, Unabridged Second Edition, 1975 at page 638 defines the word “excluded” inter alia, as follows:
“To refuse to admit, consider, include etc; shut out; keep from entering, happening, or being; reject; bar …”
From the above definition, it is clear that there is no halfway house in the matter; one is either included or excluded. You cannot therefore be partially excluded or included. The law does not make partial exclusion or inclusion a ground for challenging an election, but exclusion after a candidate had been lawfully nominated by his political party. I once again say that what happened to the 1st appellant is unfortunate and regrettable but under the law, he was not excluded from the election of 21st April, 2007. He participated therein, and even scored some votes. What if he had won the election Would he still complain of exclusion from the election
Under the circumstance in which 1st appellant found himself, it cannot be said that all is well with our electoral system. It is however clear that whatever is wrong with the system had nothing to do with the law or legal provisions but the human beings operating the system. I need not say more.
In conclusion, I hold that the appellants having grounded their petition on the ground of unlawful exclusion and participation in the election of 21st April, 2007 could not, under the Electoral Act, 2006 particularly section 145(1) thereof, on the same facts question the election on any other grounds available to a participant in the election and that having regard to the facts of this case as found by the lower court and which have not been demonstrated to be perverse, the appellants, particularly the 1st appellant, were/was not excluded from the said election but participated therein.
I therefore find no merit in the appeal, which is hereby dismissed, with no order as to costs.
Appeal dismissed.
D. MUSDAPHER, J.S.C: I have read before now the judgment or my Lord Aloysius Iyorgyer Katsina-Alu, J.S.C just delivered with which I entirely agree. In the aforesaid judgment, his Lordship has meticulously and comprehensively dealt with the relevant and crucial issues arising for the determination of the appeal. I only want to briefly comment merely for the sake of emphasis.
Can a petition under the provisions of section 145 (1) or the Electoral Act be based on (1) unlawful exclusion of a validly nominated candidate in the election and (2) at the same time questioning the conduct of the election
Section 145 (1) provides as follows:-
“145 (1) an election may be questioned on any of the following grounds,
(a) That the person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(f,,) That the respondent was not duly elected by majority or lawful votes cast at the election; OR
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from (he. election.”
Now, the appellant’s petition was based upon the following grounds of petition:-
The first petitioner was validly nominated by the 3rd petitioner but was unlawfully excluded from the election;
(b) The election was invalid by reason of corrupt practices.
(c) The ejection was invalid for reasons or non-compliance with the provisions of the Electoral
Act 2006;
(d) The first respondent was not duly elected by the majority of lawful votes cast at April, 21st 2007 Presidential Elections.”
In my view, the ground or petition provided under Section 145 1(d) relating to the exclusion of a candidate from contesting the election and the three earlier grounds under Section 145 (1) (a), (b), and (c) relating respectively to disqualification, corrupt practices and non-compliance and the failure to secure majority of lawful votes are mutually exclusive. A candidate who did not contest the election or who was unlawfully excluded from contesting the election cannot logically, reasonably and legally complain that the election of which he was excluded was marred by rigging corrupt practices and non-compliance with the provisions of the Act. He was not allowed to participate in the election; he could not therefore be in a position to know or to be affected by any irregularities in the conduct of the election. He would have no locus standi to question the conduct of the election except of course that he was unlawfully excluded. Because no matter how well and fair the election was conducted, it would amount to naught, if a candidate was truly unlawfully excluded; the court will be bound to declare the election void. To combine the provisions or Section 145 (1) (a), (b), (c) and (d) in a pleading as the petitioner has done is inconsistent, contradictory and divergent It is approbating and reprobating at the same time. Where a petitioner relies on a ground of unlawful exclusion to contest the elections he is statutorily estopped from raising or relying on any other grounds in section 145 1 (a), (b) or (c).
At Election petition is statutory and is unlike any other civil claim where there is so much latitude. Thus pleading in the alternative is an expedient which like most expedients, can be carried too far. An example where it was carried too far existed in the history or legal literature, it concerned an action brought against a neighbour for damaging a borrowed cart, the solicitor advised the defendant to plead “That, he had never borrowed the cart and that the cart was damaged and useless when he borrowed it; and that he used the cart with care and returned it undamaged, and that he had borrowed the cart from some person other than the plaintiff, and that the cart was owned by the defendant himself, and that the plaintiff never owned any cart.” “This clearly was obviously framed to take the benefit of anything that may turn up, without any clear idea or the case which the plaintiff is alleging. In the instant case, the court was right in my view when it held: at page 4754 of the printed record.
“It is crystal clear from the foregoing that the petitioners are approbating and reprobating at the same time. This should not be allowed since it is frowned by the law. Accordingly, this issue is resolved in favour of the respondents against the petitioners. We find that having relied on the ground of valid nomination and unlawful exclusion, the petitioners are, ordinarily, precluded from relying on other ground under section 145 (1) of the Electoral Act, 2006 and the alternative grounds ought to he struck out. After all it has been variously held that where a statute provides a particular mode of performing a duty regulated by the statute, that method and no other, must have to be adopted. Sec Nuhu Sani Ibrahim v. I.N.E.C, & Others (1999) 8 NWCR (Pt. 6I4) 334 at 352, Muhammadu Buhari v. Alhaji Mohammed Dikko Yusuf (2003) 4 NWCR (Pt 841) 446 at 498 – 499.”
It has to be stressed that election petition is not the same, as any civil claim where in a pleading a party can include alternative and inconsistent allegations from material facts as shown above see also Metal Constrction (W.A.) Ltd v. Aboderin. (1998) 8 NWLR (Pt. 5(3) 538
In any event the word “OR” as used in section 145 (1) of the Electoral Act, 2006, has been interpreted judicially sec Arubo v. Aiyeleru (1993) 3 NWCR (Pt.208) 126, Abia State Universityv. Anyebe (1996) 3 NWCR (Pt. 439) 646. The word “Or” is a disjunctive particle used to express an alternative or to give a choice among one or more things. I do not buy the argument of counsel for the appellant’s that the word’ “Or” used in section 145 (1) has the same meaning, with “and” used in the same section. See the opinion, JESSEL M.R. in the case of Morgan v. Thomas (1882) 9 4 BD 643 at 645. It is my judgment that the court acted correctly in striking out the alternative grounds of the petition.
Now, the question that falls for consideration is whether the first appellant was unlawfully excluded from contesting the presidential elections. In his pleadings and the evidence the first appellant clearly stated that he had taken part in the elections. Sec paragraphs 16, 18(a) (xxii), 18(a) (xxiii), 18 (a) (xxiv) and 20 where the appellants clearly pleaded participation in the election see also the evidence of the witnesses called by the appellants, Alhaji Omar Shittien, Chief Tom Ikimi, Senator Ben Obi, the 2nd appellant herein, Alhaji Lai Mohammed etc. in my view, the first appellant cannot be heard to say he was unlawfully excluded from participating in the presidential election.
It is for the above and for the fuller reasons contained in the judgment of my Lord Aloysius Iyorgyer Katsina-Alu aforesaid, that I too find the appeal unmeritorious and I accordingly dismiss it, I make no order as to costs.
G. A OGUNTADE, J.S.C.: The 1st and 2nd appellants herein were the Presidential and Vice-Presidential candidates of the 3rd appellant at the April 21st, 2007 Presidential election in Nigeria. The 1st and 2nd respondents were the Presidential and Vice-Presidential candidates of the 3rd respondent at the said election. The election was conducted by the 4th respondent (hereinafter referred to as INEC) under the chairmanship of the 5th respondent. At the conclusion of the election, the 4th respondent declared that the 1st respondent, the candidate of the 3rd respondent was the winner with 24,678,227 votes. The 1st appellant came 3rd with 2,637,848 votes.
The appellants were dissatisfied with the declaration made by INEC that the 1st and 2nd respondents had won the election. They brought before the Court of Appeal (hereinafter referred to as the court below) sitting as an Election Tribunal, a petition challenging the said declaration. The court below on 26-02-08 in its judgment dismissed the petition. The appellants were dissatisfied with the judgment of the court below. They have brought this final appeal against it on several grounds of appeal. Ten issues for determination were formulated out of the grounds of appeal. The ten issues read:
“1. Whether, after its Ruling on 20th September, 2007, the lower court, in its judgment delivered on 26th February, 2008, was not in error to have re-opened consideration of the issue that the petition in its entirely was incompetent and that 5th Respondent was wrongly joined in the petition. (Grounds 2, 3 and 4)
2. Whether the lower court is right in holding, firstly, that the 1st petitioner was not unlawfully excluded from the election and, secondly, that, having pleaded unlawful exclusion, he cannot question, the election on any other ground. (Grounds 5, 7, 8, 9,10,14 & 15).
3. Whether the judgment on appeal to this court is not vitiated by the court’s use of Section 146 of the Electoral Act 2006 to shield from invalidity, various interactions of the Act, including cases of non-compliance amounting to corrupt practice, non-compliance with the provisions relating to ballot papers and to the Voters’ Register. (Grounds 11, 18,20,21,34 & 36).
4. Whether the decision of the Court of Appeal striking out the name of the 5th Respondent on the ground that he is not a juristic personality is correct having regard to the pleadings, evidence and entire circumstances of the petition. (Ground 6).
5. Whether the Court of Appeal rightly deemed the 1st Respondent as having been duly elected President of the Federal Republic of Nigeria by majority of valid lawful votes of 24,638,063 in the face of the three conflicting ‘Final’ results of the election which the 4th and 6th Respondents were unable to explain or reconcile by their pleadings or by evidence at the trial. (Grounds 1,23,24,25 and 38).
6. Whether the allegations of apparent similar handwriting on documents tendered by consent can only be established by calling expert handwriting analyst, when Respondents offered no explanation beyond bare denial through unnamed, un-sworn witnesses, who were not the authors of the said documents. (Ground 19).
7. Whether the decision of the Court of Appeal to the effect that the petitioners did not specifically identify any police officer or soldier who participated in the conduct of the election was correct having regard to the admissions on record, pleadings and evidence. (Ground 22).
8. Whether or not the failure of the Court of Appeal to consider the validity and admissibility of all the witnesses statements of the 1st & 2nd Respondents and some of those of the 4th – 808th Respondents occasioned a miscarriage of Justice.(Ground 31).
9. Whether or not the total failure of the Court of Appeal to evaluate and pronounce upon the evidence elicited from the 5th Respondent by way of answers to the administered interrogatories occasioned a miscarriage of justice. (Ground 27, 28, 29, 30, 32).
10. Whether this is not a proper case for the Supreme Court to invoke Section 22 of the Supreme Court Act to invalidate the elections in view of:
(i) failure of the Court of Appeal to evaluate evidence on vital issues relating to delivery and supply bf ballot papers;
(ii) disregarding petitioners’ submissions on thousands of exhibits that supported petitioners as highlighted in Schedules 1-25 incorporated into their final addresses;
(iii) failure of the Court of Appeal to properly evaluate and pronounce on evidence led by the petitioners in their witnesses prejudicial conclusions not borne by the records;
(iv) allowing extraneous political considerations to affect their judgment to the prejudice of the petitioners. (Grounds 17, 18,26,33,37 & 39).
(v) disallowing the petitioners’ independent witnesses on subpoena from testifying on ground that their depositions were not front loaded at the time of filing of the petition. (Ground 1,2 & 4 of interlocutory appeal).”
The issues formulated by the 1st and 2nd respondents are these:
“i. Upon a dispassionate interpretation of Section 145(1)(d) of the Electoral Act, 2006, whether the Appellants who complained of total exclusion from participation in the election could still rightly challenge the outcome of the election under any of the grounds stated in Section 145(1)(a)(b) and (c) of the same electoral Act – (Grounds 5, 7, 8,9 and 10).
ii. Considering the fact that the objection raised to the competence of the appeal was/is jurisdictional, coupled with the fact that the lower court did not dispose of the merits of the said objection in its Ruling of 20th September 2007, whether it can rightly be said that the said objection has been caught by issue estoppel to exclude the valid pronouncement made on it by the lower court in its final judgment -Grounds 2, 3, 4 and 6.
iii. Having regard to the state of the pleadings read together with the mandatory provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006 in conjunction with Section 141 of the same Electoral Act, whether the lower court was not perfectly right to have adopted the scores pleaded for both 1st Appellant and the 1st Respondent in the petition and as admitted in the Respondents’ reply – (Ground 1).
iv. Bearing in mind the state of the various criminal allegations contained in the petition Sections 135, 136, 137 and 138 of the Evidence Act and decided and binding authorities of this court on electoral matters, coupled with the terse evidence placed before the court by the Petitioners/Appellants, whether the Appellants ever discharged the onus or burden of proof placed on them to warrant the grant of their petition/reliefs. (Grounds 11,22,23,24 and 39).
v. Juxtaposing the myriads and avalanche of criminal or quasi-criminal allegations of non-compliance with the provisions of the Electoral Act, 2006, with the lack of evidence to establish the said allegation, whether the lower court was not perfectly right by holding that the said allegations were unproven and/or that if they were per-pherally proved, same was not sufficient, to have affected the outcome of the election – (Grounds 12, 13, 14, 15, 16, 20,21,34,36 and 38).
vi. Do Schedules 1-25 procured by Appellants’ counsel and attached Appellants’ written address have any probative value to warrant any court using them to nullify the 1st Respondent’s election Grounds 17, 18 and 33.
vii. Considering the pleadings of parties, the dearth of evidence on seemingly similar writings/signatures and the written addresses of their respective counsel wherein no invitation was made to the lower court to compare or contrast perceived similar writings/signatures, whether the lower court was under any duty or obligation to start comparing such perceived similar writings/signatures- (Ground 19).
viii. Was the lower court not right by affirming the return of the Respondents as made by the Chief Electoral Commissioner for the Presidential Election after painstakingly considering the evidence before it Grounds 25 & 26.
ix. Considering the answers elicited by way of depositions through affidavits from the interrogatories, coupled with the fact that under any by virtue of Order 33 Rule 8(1) and (2) of the Federal High Court Civil Procedure Rules, Appellants did not complain that the answers elicited by them were insufficient to warrant an order for further answers, whether there was any need for the consideration of the said answers and/or whether the answers have any probative value to the Appellants- Grounds 27, 28, 29, 30 & 32.
x. Upon a holistic construction of the Election tribunal and Court Practice Directions 2007 (Practice Directions) whether Respondents’ witness statements which Appellants copiously made use of at the lower court and in their brief before this court were/are not properly placed before the lower court- Grounds 30 & 31.”
The other respondents raised issues for determination in the appeal, which are similar to those set out above.
The important issue I like to consider first in this judgment is whether or not the appellants had not complied with Section 145(1) of the Act, 2006 in the manner they framed the grounds upon which they asked that the election of 21st April, 2008 be set aside.
The Petitioners/Appellants in framing-their grounds stated in paragraph 15 of the petition thus:
“15. The grounds on which the petition is based are-
(a) The 1st Petitioner was validly nominated by the 3rd Petitioner but was unlawfully excluded from the election.
ALTERNATIVELY THAT:
(b) The election was invalid by reason of corrupt practices.
(c) The election was invalid for reasons of non- compliance with the provisions of the Electoral
Act, 2006 as amended, and
(d) The 1st Respondent was not duly elected by majority of lawful votes cast at the April 21, 2007 Presidential election.”
Parties’ counsel by their final addresses before the court below were locked in a serious argument as to whether or not the 1st Petitioner who had raised the ground of unlawful exclusion from the April 21, 2007 Presidential Election could still validly raise the other grounds in respect of, acts said to have arisen during the course of the election. It was argued by the respondents that the ground of unlawful exclusion could not be raised in the petition in addition to those of corrupt practices, non-compliance and that the 1st respondent was not elected by a majority of lawful votes. The appellant’ counsel on the other hand argued that the claims were brought in the alternative and that it was permissible in law to do so.
The court below in its judgment upheld the contention of the respondents by concluding thus:
“Learned Senior counsel for the Petitioners confused reliefs sought in an election Petition and grounds therein, which in our humble view are distinct while reliefs or prayers can be made in the alternative in an election petition, a ground of exclusion cannot be made in the alternative with other grounds. A ground of exclusion in an election petition stands clearly on its own. It is mutually excusive of other grounds. It is crystal clear that from the foregoing that the Petitioners are approbating and reprobating, at the same time. This should not be allowed since it is frowned at by the law.
Accordingly, this issue is resolved in favour of the Respondents against the Petitioners. We find that having relied on the ground of valid nomination and (un)lawful exclusion, the Petitioners are ordinarily precluded from relying on any other ground under Section 145(1) of the Electoral Act, 2006 and the alternative grounds ought to be struck out.”
Was the court below right in its decision to strike out the grounds raised by the petitioners/appellants other than that of unlawful exclusion I think not. I shall now show why the court below was in error to do so.
Section 145(1) of the Electoral Act, 2006 which is applicable to this case provides:
“145(1) An election may be questioned on any of the following grounds:
(a) that a person whose election was at the time of the election not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
Section 145(1) above is easy to understand and I do not think that its application should have been made a ground for any contentious argument. When a counsel argues that a petitioner who places reliance on Section 145(l)(d) above could not at the same time make a feasible claim based on the grounds in (a), (b), (c) the counsel is saying the obvious. A court could not give judgment which at the same time concludes that a petitioner was excluded from the election and on any of the grounds stated above in (a),(b), (c) which deal with acts occurring in the course of the election. Given that position, it is difficult to understand why such a simple matter was allowed to blossom into a big issue.
The well-established principle of procedure is that a plaintiff or petitioner may in his pleadings raise inconsistent claims. But the court will not give such plaintiff or petitioner a judgment upholding such inconsistent claims. The necessity to bring in the same suit claims, which are inconsistent, is based on common sense, expediency and the necessity to save lime. It is settled law that a plaintiff is not allowed to nibble at his claims or reliefs by bringing in successive suits the claims, which could be considered in one and the same suit. This approach prevents the resort to a multiplicity of suits on a dispute where all the issues in the dispute could be resolved in one suit.
The petitioners/appellants in this case had approached the court below praying for some reliefs. They were not to be the judges. They could not determine in advance, which of the reliefs they claimed would be granted. That was a matter to be decided by the court. They needed however to present all their claims to the court in one petition in order to obviate the need to bring another petition on grounds (a), (b), (c) of Section 145(1) should the court dismiss the claim under ground (d). It was incumbent on the court below to consider in succession each of the claims made by the petitioners/appellants. That the principal claim rails is all the more a reason to consider the alternative claims. There is no justification for a court to refuse to consider the claims in a suit on the ground that the claims were brought in the alternative. To do so would lead to a multiplicity of suits arising from the same transaction.
It was argued that an election petition is sui generis and that it is not permissible for that reason to bring alternative claims, which are inconsistent. My reaction to such argument is that Section 145(1) of the Electoral Act provides the grounds to be relied upon in an election petition. It does not set out the procedure for bringing the grounds. Paragraph 50 of the first Schedule to the Electoral Act, 2006 makes the Federal High Court (Civil Procedure) Rules applicable to the proceedings before Election Tribunals. Order 26 rules (12)(1) and (3) of the said Federal High Court Roles specifically permit the bringing of inconsistent claims. The said order 26 rules 12(1) and (3) provides:
“12.(1) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.
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(3) Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief and the same rule shall apply to any counter-claim made or relief claimed by the defendant in his defence.”
In Metal Construction (W.A) Ltd. v. Aboderin (1998) 8 NWLR (Pt.563) 538 at 547 this Court per Iguh J.S.C. observed.
“It cannot be disputed that either party to a suit may in a proper case include in his pleadings alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He may also rely on several different rights alternatively although they may be inconstant.”
See also Help (Nig) Ltd. v. Silver Anchor (Nig) Ltd (2006) 5 NWLR (Pt.972) 196 at 222.
The learned author of PRACTICE & PROCEDURE OF THE SUPREME COURT, COURT OF APPEAL and HIGH COURTS OF NIGERIA, Aguda, at page 323 para. 26.121 discussing the issue writes:
“A plaintiff may make his claim in the alternative. He may even set up two or more inconsistent sets of facts and make claims in the alternative, but care must be taken to plead facts separately and distinctly in respect of which the alternative reliefs are being asked. See Bagot v. Easton (1877) 7 Ch.D 1; Re Margan, Owen v. Morgan [1904J 35 Ch. D. 492; and Dovy v. Garret [1877) 7 Ch D 473,489”.
As will shortly be made manifest in this judgment, the facts relied upon by the Petitioners/appellants straddle between exclusion and non-exclusion such that it was necessary for them out of elementary prudence to claim in the alternative. Not being diviners, they could not have known at the commencement of their petition which facts would be accepted by the court and which would not. In any case, Section 145(1) does not create the procedure by which to make a claim in a petition. It merely creates causes of action. Guidance as to procedure is to be found in the rules of Court.
In the petition before the court below, it was pleaded thus in paragraph B:
“The Grounds on which the petition is based are-
(a) The 1st Petitioner was validly nominated by the 3rd Petitioner but was unlawfully excluded from the election.
ALTERNATIVELY THAT
(b) The election was invalid by reason of corrupt practices.
(c) The election was invalid for reasons-of noncompliance with the provisions of the Electoral Act, 2006 as amended; and
(d) The 1st Respondent was not duly elected by majority of lawful voters cast at the April 21, 2007 Presidential Election.”
It is seen above that claims (b), (c) and (d) were made as an alternative to claim (a). In other words, the petitioners/Appellants were saying to the court below. ‘If you find that we were not unlawfully excluded, please consider our claim on these other grounds. They then proceeded to set out the material facts upon which they relied in support of the unlawful exclusion pleaded and the three alternative grounds. The duty falling upon the court below, as a court of first instance was to consider the evidence on the different grounds pleaded and return its verdict thereupon. The court below ought not to have heeded the entreaties of the respondents’ counsel to shoot-down a legitimate procedure. The ploy of the respondents was to prevent a consideration of the alternative claims. As it turned out, the court below did consider the alternative claims, albeit ex abundate candela but it is my firm position that even if the principal claim and the alternative claims made thereto might fail, a court of trial as a matter of constitutional duly must consider both. A plaintiff is entitled to a full hearing of his case before the court and the court has no business electing which of two inconsistent claims it will hear or not hear. Indeed, such an exercise was never necessary in the hearing before the court below.
I shall now consider the important question as to whether or not the court below was correct in its judgment that the 1st petitioner/appellant was not excluded from the elections. In paragraph 16 of the petition, the petitioners/appellants pleaded their case on unlawful exclusion thus:
“16. FACTS OF UNLAWFUL EXCLUSION
, (a) The 1st Petitioner was duly nominated by the 3rd Petitioner as its candidate for the 21st April,
2007 Presidential Election;
(b) Upon the nomination of the 1st Petitioner, the nomination form was duly completed and submitted to the 4th Respondent.
(c) After submission, the 4th Respondent on 28th Day of December, 2006 invited all the candidates including the 1st Petitioner to its screening and verification exercise; Subsequent to the screening and verification, exercise, the 4th Respondent published a statement of the full list of the names of candidates standing nominated pursuant to the Electoral Act;
(e) In the statement of the full names of candidates standing nominated published by the 4th Respondent, the name of the 1st Petitioner was unlawfully excluded;
(f) In addition to sub paragraphs (a) – (e) above, the 4th and 5th Respondents, at different public for and after nomination had closed, repeatedly declared and stated that the 1st Petitioner was disqualified from contesting the April 21, 2007 Presidential Election and implacably maintained this position until the day of the election.
(g) The Petitioners will contend further that the 4th and 5th Respondents were biased and deliberately failed to give the Petitioners equal opportunity as was given to other candidates to participate in the April, 21, 2007 Presidential Election.
(h) The Petitioners will contend that the action of tile 4th and 5th Respondents as enumerated in paragraphs (a) – (I) above, was deliberate and effectively excluded the 1st and 2nd Petitioners from engaging in a meaningful and effective contest as a candidate at the election for which he had been validly nominated by the 3rd Petitioner.
PARTICULARS OF UNLAWFUL EXCLUSION
i. The 3rd Respondent by a letter dated 18th January, 2007 actually instigated the events that led to the unlawful exclusion of the 1st Petitioner.
ii. Upon becoming aware of the letter by the 3rd Respondent during the screening, the 1st Petitioner, in his capacity as a nominated candidate, replied, through his Counsel, to the 4th Respondent, informing the 4th Respondent that the allegations made by the 3rd Respondent were unfounded.
iii. The 4th Respondent at no time thereafter reverted to the Petitioners about their response.
iv. On the 7th day of March, 2007, the Federal High Court in Suit No.: FHC/ABJ/CS/03/2007 between Action Congress v. INEC & Anor Judgment was delivered by Kuewumi J. in which it was adjudged, amongst others, that the 4th Respondent lacked power to disqualify a candidate at an election and that such power lies with the Court of Law.
The said Judgment shall be relied upon.
v. Thereafter, in defiance of the said Judgment, the 4th Respondent proceeded to publish its official list of candidates excluding the name of the 1st Petitioner. In addition, the said list was posted on INEC website.
vi. A letter was written by the 3rd Petitioner to the 4th and 5th Respondents on the 9th day of February, 2007 complaining about the unlawful exclusion of its candidate.
vii. The 4th Respondent replied the Petitioner’s letter on 17th February, 2007 declining to revisit the unlawful exclusion.
viii. Following the insistence of 4th Respondent on the 1st Petitioner’s unlawful exclusion, an action was instituted at the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/152/2007 (Alhaji Atiku Abubakar & Anor. v. I.N.E.C & Anor before Tijani Abubakar J., Judgment was delivered on the 3rd day of April, 2007 whereupon it was declared as follows:
‘(1) That an order is made directing the Defendants not to exclude the 1st Plaintiff from contesting the election to the office of the President of the Federal Republic of Nigeria.
(2) That if excluded it is hereby ordered that Defendants include the Name of the 1st Plaintiff as the Presidential Flag bearer of the 2nd Plaintiff.
(3) That the Defendants are hereby restrained from excluding the name of the 1st Plaintiff as the Presidential candidate of the 2nd Plaintiff except upon pronouncement by a Court of Law.’
The judgment which is still subsisting shall be relied upon at the trial.
ix Your Petitioners shall lead evidence that in defiance of the Order/Judgment of the Court, the 4th and 5th Respondents persisted in their decision to unlawfully exclude the Petitioner, and stated that it would only obey Orders made by the Supreme Court.
x. Your Petitioners shall lead evidence that apart from the final list of presidential candidates published by the 4th Respondent on 15th March. 2007, no further amended, supplementary or modified list of Presidential candidates was published by the 4th Respondent in which the name of the Petitioners were included.
xi. Notwithstanding the fact that the 1st Petitioner was unlawfully excluded the 4th Respondent proceeded to allocate 2,637,848 votes to the 1st Petitioner as a candidate in the election.
xi. By reason of the unlawful exclusion, it became practically impossible for the 1st Petitioner to present himself effectively as a candidate at the election and for his supporters to canvass for votes on his behalf.
xiii. The 1st Petitioner was, prior to the election, a two-term Vice-President, who had won two (2) previous Presidential Election, on a joint ticket with the incumbent President, General Olusegun Obasanjo.
xiv. Upon joining the 3rd petitioner, the 1st Petitioner pulled a substantial followership which stood him in good stead to have won the election but for the 4th Respondent’s acts of unlawful exclusion.
xv. In the course of seeking reversal of his unlawful exclusion, a Judgment of the Supreme Count was delivered on Monday, 16th April, 2007 where it was adjudged that the 4th Respondent had no power lo disqualify a candidate in an election without a lawful Court Order.
xvi. Notwithstanding the judgment of the Federal High Court of 3rd April, 2007 and the Judgment of the Supreme Court of 16th April, 2007, the 4th Respondent still refused to restore and/or publish the name of the 1st Petitioner on the list of candidates standing nominated as at Tuesday, 17th April, 2007.
xvii. On Tuesday 17th April, 2007, the 8091h Respondent in contravention of the Electoral Act, 2006, and the Constitution of the Federal Republic of Nigeria, 1999 issued an Order prohibiting campaign and public meetings until after the date of the Presidential election, which order was brazenly enforced by the law enforcement agencies.
xviii. By the prohibition order issued by the 809th Respondent, the Petitioners were effectively deprived of the opportunity to undertake their electioneering campaign up to the 20th of April, 2007, when by law campaigns were to cease.
xix. That the party symbol of the 3rd Petitioner as approved by the 4th Respondent was not reflected on the ballot paper used for the April 21, 2007 Presidential Election the object and effect of which was to exclude the Petitioners from a meaningful and effective participation in the election.
At the trial, your Petitioners shall rely on Newspaper publications, video recordings, mobile phone visual recordings, photographs, correspondences, and other forms of communications and other relevant documents exchanged between the parties.”
The court below, after giving consideration to the evidence calico in support of tile ground of unlawful exclusion came to a conclusion in these words at page 4763 – 4764:
“In our considered opinion, the above scenario points to the inescapable fact that the 1st Petitioner’s name was published by INEC after the judgment of the Supreme Court of April 16, 2007 to contest the Presidential election of 21st April, 2007.
At this point, we appreciate the submissions of the leaned Senior Counsel to the petitioners in respect of his stance over acts, which he contended as amounting to acts that constitute exclusion. It appears that from the date of nomination until 16th of April, 2007, the 4th Respondent attempted to exclude the 1st Petitioner from participating in the election. Certainly, some hurdles were placed on his way, which ordinarily should not be so. But by the judgment of the Supreme Court of 16th April, 2007, the coast was cleared for him to contest the election. It needs no further gainsaying the fact that he participated in the election.
Exclusion means ‘keeping out, barring, prohibited, eliminated, ruled out.’ The petitioners, from their own showing in their pleadings, evidence of their salient witnesses as depicted earlier on in this judgment, as well as their conduct after the judgment of tile Supreme Court on 16th April, 2007, cannot be heard to say that they have been excluded from the Presidential Election. They were not excluded; they were included and actively participated in the election. This issue is accordingly resolved against the petitioners and in favour of the Respondents.”
From the passage reproduced above, it is apparent that the court below accepted that the 1st Petitioner/ Appellant was at least excluded from the election until 16th April 2007 when the Supreme Court gave its judgment which restrained INEC from preventing the 1st Petitioner/Appellant from contesting the election. In coming to the conclusion that the 1st Petitioner/Appellant was not excluded, the court below relied on the meaning of exclusion by stating that “exclusion means keeping out, barring, prohibited (sic), eliminated (sic), ruled out”.
I am, to say the least disappointed that exclusion from an election did not receive a more incisive and illuminating consideration from their Lordships of the court below. An election in democratic system is not a football game or a theatre show where one pays to watch a game or performance and from which exclusion amounts to little or nothing. Participating as a candidate in an election means more than that. The jurisprudence of the interpretation of election related laws imposes on a court an understanding of the attributes of democracy and its principles.
In an election under a democratic system, all the political parties recognized under the law and their candidates must be treated equally and fairly. The public body organizing the election must ensure that all the political parties and their candidates are afforded equal opportunity to approach the electors with their party programmes. The public body must not show special favour or disfavour to any of the candidates. An election is like a bazaar where political candidates advertise their party programmes to electors and that is as it should be in a democracy. In the interpretation of a provision in the Electoral Act, 2006, a court must be conscious of its duty to jealously guard the underlying principles of democratic governance as enshrined ill our Constitution.
Sections 14(1), 17(1) and (2)(a) and 42(1) of the 1999 Constitution of Nigeria provide:
“14.-(1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.”
“17.-(1) The State social order is founded on ideals of Freedom, Equality and Justice
(2) In furtherance of the social order-
(a) every citizen shall have equality of rights, obligations and opportunities before the law;”
“42.-(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.”
Similarly, Article 3 of the African Charter on Human and Peoples Rights which is now part of the Law of Nigeria following the ratification of the Charter on 17/3/83 provides:
“1, Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the Law.”
In the interpretation of the words “that the petitioners or its candidate was validly nominated but was unlawfully excluded from the election”, a court must bear in mind that the ‘exclusion’ postulated under section 145(1)(d) is the refusal to accord to a candidate the equality of treatment as would enable him contest against the other candidates on level terms, You cannot prevent a political candidate from advertising his programmes to the electors and turn round to say he was not excluded. A candidate enters into an election contest in order to engage in a competition of ideas. If the ideas of a candidate are not allowed to float equally with those of the others before the electors, then the candidate has been excluded from the election.
In an election, the exclusion of a candidate may take several forms. It may be that his name was not placed on the ballot paper or that his name was on the ballot but the public body organizing the election makes a statement or does an act, which depresses the chance of success of the candidate. In the instant case the substance of the complaint of the 1st petitioner/appellant was that INEC placed obstacles in his way in that the electors in Nigeria were made to believe that he would not be permitted to contest the election. This position remained so until 4 days to the election when the Supreme Court in its judgment ordered INEC to place 1st petitioner’s/appellant’s case on the ballot. INEC’s chairman in his answers on oath to the interrogatories delivered on him stated:
“That in answer to the above question I say that:
The initial ballot papers printed to be used for the Presidential election of 21st April, 2007 were serially numbered, with counterfoils and in booklets. However, following the Supreme Court judgment of April 16th the Commission produced a second batch of ballot papers which were not serially numbered because of the extremely limited lime for their printing but were packed in bundles of equal quantity so that the quantity delivered could be easily ascertained.”
The above deposition on oath of INEC’s chairman reveals the resolve of INEC to keep the 1st petitioner/appellant out of the election even to the point of not including his name on the ballot papers until four days to the election. The question is – Did the appellant/petitioner receive equality of treatment with the other candidates in the election as guaranteed to him under the Constitution of Nigeria and the Africa” Charter of Human and People Rights
Section 101 of the Electoral Act 2006 provides:
“101 -{1) For the purpose of this Act, the period of campaigning in public by every political party shall commence 90 days before polling day and end 24 hours prior to that day.
(2) A registered political party which through any person acting on its behalf during the 24 hours before polling day:
(a) advertises on the facilities of any broadcasting undertaking; or
(b) procures for publication or acquiesces in the publication of an advertisement in a Newspaper, for the purpose of promoting or opposing a particular candidate, commits an offence under this act and is liable on conviction to a maximum fine of N500,000”
lf the other candidates in the election had 90 days for their campaign and the 1st petitioner/appellant had a mere 4 days, did he receive equality of treatment
The Electoral Act of 2006 is so concerned with equality of treatment that it criminalizes the failure to give such equality by providing in Sections 102 and 103 thus:
“102. – (1) A government owned print or electronic medium shall give equal access on daily basis to all registered political parties or candidates of such political par1ies.
(2) A denial of such access and equal time constitute an offence punishable in the first instance with a maximum fine of N500,000 and the withdrawal of the licence of the offending electronic media house by the National Broadcasting Commission for a period of 12 months on any subsequent violation.
(3) A person other than a political party or a candidate who procures any material for publication for the purposes of promoting or opposing a particular political party or the election of a particular candidate over the radio, television, newspaper, magazine, handbills or any print or electronic medium whatsoever called during 24 hours immediately preceding or on polling day commits an offence and is liable on conviction to a maximum fine of N500,00 or imprisonment for six (6) months or to both.
103.-(1) A candidate and his party shall campaign for the elections in accordance with such rules and regulations as may be determined by the Commission.
(2) Sate apparatus including the media shall not be employed to the advantage or disadvantage orally political party or candidate at any election.
(3) Media time shall be allocated equally among the political parties at similar hours of the day.
(4) At any public electronic media, equal airtime shall be allotted to all political parties during prime times at similar hours each day, subject to the payment of appropriate fees.
(5) At any public print media, equal coverage and conspicuity shall be allotted to all political parties.
(6) Any public media that contravenes subsections (3) and (4) of this Section commits an offence and is liable on conviction to a maximum one of N500,000 in the first instance and to a maximum fine of N1,000,000 for subsequent conviction.” (underlining mine)
Let me also emphasize that a court has the duty when interpreting a statutory provision to ascertain the purpose of the provision or the mischief, which the lawmaker seeks to prevent. The learned author of Maxwell on The Interpretation of Statutes 12th Edition at page 137 writes-on the subject thus:
“… there is no doubt that ‘the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief.’ To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined: quando aliquid prohibetur, prohibetur et omne quod devenitur ad illud.
This manner of construction has two aspects. One is that the courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances, which parties may have devised in the hope of thereby falling outside the Act. When the courts find an attempt at concealment, they will, in the words of Wilmot C.J., brush away the cobweb varnish, and shew the transactions in their true light.”
I have no doubt in my mind that INEC willfully and recklessly excluded the 1st petitioner/appellant from the 21st April, 2007 ejections. It persisted in the design to exclude the 1st petitioner/appellant even if it meant frittering away a lot of tax payers’ money. Even if at some stage, INEC had reason to want to exclude the 1st petitioner/appellant, it seems to me that commonsense should have guided INEC to include the 1st petitioner/appellant’s name on the ballot and to announce to the electors that the 1st petitioner/appellant was not running in the event the judgment of the Supreme Court went against him.
I hold that the Petitioners/Appellants by a preponderance of evidence established that the 1st petitioner/appellant, a candidate validly nominated was unlawfully excluded from the election.
I therefore order that the Presidential Elections held in Nigeria all 21st April, 2007 be annulled and a new election conducted within 90 days from today.
Let me also observe that if I had to decide this case on the ground of non-compliance with Section 45(2) of the Electoral Act, 2006, I would make the same order as I have made in Appeal No. SC.51/2008 that the election be annulled. I would do so because there is abundant evidence including the sworn deposition filed by the Chairman of INEC in answer to the interrogatories served on him that the ballot papers used for the April 21st 2007 Presidential Elections were not serialized and bound in booklets as required under Section 45(2) of the Electoral Act, 2007.
In conclusion, I feel compelled to say that the courts in Nigeria have a duty to ensure that the march towards a true enthronement of democracy is not stalled. If elections are to be held in Nigeria, which are credible, and rancour free, the starting point is the enforcement of the provisions of our Electoral Act. We cannot be witnessing violence resulting in the loss of many lives at each election. An interpretation of the Electoral Act in a manner, which undermines rather than promotes the advent of democracy is bound to create avoidable problems for the country.
I make no order as to costs.
A.M. MUKHTAR, JSC: At the last Presidential Election held on 21st April, the 1st and 2nd Respondents in this appeal, Alhaji Umaru Musa Yar’Adua, and Dr Goodluck Jonathan were elected and declared the President and Vice President of Nigeria respectively, on the ticket of the Peoples Democratic Party. The Petitioners who contested the election on the ticket of the Action Congress, being dissatisfied with the conduct and result of the election filed a Petition at the Court of Appeal; being the court constitutionally empowered to hear the Petition in its appellate jurisdiction. In compliance with the Practice Direction of the court, the Appellants frontloaded their evidence, supporting documents and called witnesses. The Respondents also did the same. All these together with the addresses of Learned Senior Counsel for the parties were adopted and the learned court evaluated and considered the documents respectively, in its judgment, after which it dismissed the Petition. The Petitioners were not happy with the decision, and so appealed to this court on several grounds of appeal. Briefs of argument were exchanged by all the parties to the appeal, and appellant reply brief were also filed by the Appellants. All the briefs of argument were adopted at the hearing of the appeal and oral arguments were proffered by all the Learned Senior Advocates of Nigeria who appeared for the parties. Issues were formulated in the briefs of argument. Ten issues for determination are contained in the Appellants’ brief of argument as follows:-
“1. Whether, after its ruling on 20th September, 2007, the lower court in its judgment delivered on 26th February, 2008 was not in error to have re-opened consideration of the issue that the petition in its entirety was incompetent and that 5th respondent was wrongly joined in the Petition.
2. Whether the lower court is right in holding, firstly that the 1st petitioner was not unlawfully excluded from the election and, secondly, that having pleaded unlawful exclusion, he cannot question the election on any other ground.
3. Whether the judgment on appeal to this court is not vitiated by the lower court’s use of section 146 of the Electoral Act 2006 to shield from invalidity various infractions of the act, including cases of non-compliance amounting to corrupt practice, non-compliance with the provisions relating to ballot papers and not to the voters register.
4. Whether the decision of the Court of Appeal striking out the name of the 5th respondent or the ground that he is not a juristic personality is correct having regard to the pleadings, evidence and entire circumstances of the petition.
5. Whether the Court of Appeal rightly deemed the 1st respondent as having been duly elected President of the Federal Republic of Nigeria by majority of lawful votes of 24,638,063 in the face of the three conflicting ‘Final’ results of the election which the 4th and 6th respondents were unable to explain or reconcile by their pleadings or by evidence at the trial.
6. Whether the allegations of apparent similar handwriting on documents tendered by consent can only be established by calling expert handwriting analyst, when respondents offered no explanation beyond bare denial through unnamed, unsworn witnesses, who were not the authors of the said documents.
7. Whether or not the decision of the Court of Appeal to the effect that the petitioners did not specifically identify any police officer or soldier who participated in the conduct of the election was correct having regard to the admissions on record .
8. Whether or not the failure of the Court of Appeal to consider the validity and admissibility of all the witness statements of the 1st and 2nd respondents and some of those of the 4th – 808th respondents occasioned a miscarriage of justice.
9. Whether or not the total failure of the Court of Appeal to overturn and pronounce upon the evidence elicited from the 5th respondent by way of answers to administer interrogatories occasioned a miscarriage of justice.
10. Whether this is not a proper case for the Supreme Court to invoke section 22 of the Supreme Court Act to invalidate the election in view of.
(i) Failure of the Court of Appeal to evaluate evidence on vital issues relating to delivery and. supply of ballot papers.
(ii) Disregarding petitioners’ submissions on thousands of exhibits that supported petitioners’ as highlighted in schedules 1 – 25 incorporated unto their final addresses;
(iii) Failure of the Court of Appeal to properly evaluate and pronounce on evidence led by the petitioners in their witness statements and ascribing to such witness statements prejudicial conclusions not borne by the records;
(iv) Allowing extraneous political considerations to affect their judgment to the prejudice of the Petitioners.
(v) Disal1owing the petitioners’ independent witnesses on subpoena from testifying on ground that their depositions were not frontloaded at the time of filing of the petition.”
The 1st and 2nd Respondents in their own brief of argument formulated issues for determination of the appeal.
iii Having regard to the state of the pleading read together with the mandatory provisions of paragraph 4(1) (c) of the first schedule to the Electoral Act, 2006 in conjunction with Section 141 of the same Electoral Act, whether the lower court was not perfectly right to have adopted the scores pleaded for .both 1st appellant and the 1st respondents’ reply.
iv. Bearing in mind the state of the various criminal allegations contained in the petition vis-‘E0-vis Sections 135, 136, 137 and 138 of the Evidence Act and decided and binding authorities of this court on electoral matters, coupled with the terse evidence placed before the court by the petitioners/appellants, whether the appellants ever discharged the onus or burden of proof placed on them to warrant the grant of their petition/reliefs.
v. Juxtaposing the myriads and avalanche of criminal or quasi-criminal allegations of non-compliance with the provisions of the Electoral Act, 2006, with the lack of evidence to establish the said allegation, whether the lower court was not perfectly right by holding that the said allegations were unproven and/or that if they were peripherally proved, same was not sufficient to have affected the outcome of the election.
vi. Do schedules 1 – 25 procured by appellants counsel and attached to appellants’ witness address have any probative value to warrant any court using them to nullity the 1st respondent’s election
The 3rd Respondent’s Learned Senior Counsel formulated 11 issues that are virtually in pari materia with the issues reproduced supra in the Appellants’ brief of argument. Likewise the 4th – 808th Respondents’ issues.
The 810th Respondent formulated a single issue in its brief of argument, and the issue reads:-
“Whether the ‘soldiers’ who were alleged to have committed electoral malpractice could be said to have participated in the conduct of the election, especially when the said ‘soldiers’ were not identified”
A notice of preliminary objection was filed by the Learned Senior Advocate for the 1st and 2nd Respondent and it was argued in their brief of argument.
In the lower Court the, Respondents filed separate applications seeking to terminate the Petition on the alleged incompetence of the petition as a result of alleged misjoinder of the ground of unlawful exclusion with other grounds. The applications were dismissed.
The grounds upon which the Appellants predicated their case are as follows:-
“(a) The 1st petitioner was validly nominated by the 3rd Petitioner but was unlawfully excluded from the election;
ALTERNATIVELY THAT:
(b) the election was invalid by reason of corrupt practices.
(c) the election was invalid for reason of non-compliance with the provisions of the Electoral Act, 2006 as amended;
(d) the 1″ Respondent was not duly elected by the majority of lawful votes cast at the April, 21, 2007 Presidential Election.”
It is the argument of the Learned Senior Advocate for the Appellants that the question raised is whether, under Section 145(1) of the Electoral Act 2006, a Petitioner who pleads unlawful exclusion, cannot question the election on any other ground as a claim in the alternative. The question is not whether the grounds in Section 145(1)(a) (b) and (c) can be pleaded together with, or in the alternative to, the grounds in Section 145(d). The argument is that unlawful exclusion, by its very nature, precludes its being combined with other grounds, whether together or in the alternative. The Learned Senior Counsel stated the general principle of pleadings in ordinary, non-election civil proceedings is clear enough, and is stated by the Supreme Court in Metal Construction (W.A.) Ltd v. Aboderin 1998 8 NWLR part 563, which was re-affirmed by the same court in the cases of Newbreed Organization Ltd v. Erhomo 2006 5 NWLR part 974 page 499, Help (Nig) Ltd v. Silver Anchor (Nig) Ltd 2006 5 NWLR part 972, and XS (Nig) Ltd. v. Taisei W.A. Ltd. 2006 15 NWLR part 1003 page 533. He also referred to Order 26 Rules 12 (`) and (3) of the Federal High Court Civil Procedure Rules 2000 made applicable in Election Petition proceedings by paragraph 50, of the 1st Schedule to the Electoral Act supra, Bulen and Leake and Jacob’s Precedents of pleadings, 12th Edition at page 41, and Nwadialo’s, Civil Procedure in Nigeria, 2nd Edition at page 381. The Learned Senior Counsel after citing the above authorities however agreed that the decisions were only persuasive authorities, not binding. The Learned Senior Counsel continued that without a binding precedent, the issue has to be decided largely on the basis of the interpretation of the words used in Section 145(1) of the Electoral Act supra. Now, he is talking I would say. According to him the word ‘or’ as interpreted by the Court below was out of con, and also the lower court did not take into account the meaning of the word ‘any’ of the following grounds, which appear in the first line of Section 145(1) of the Electoral Act. He referred to the cases of Texaco Panama Inc. v. Shell P.D.C.N. Ltd. 2002 5 NWLR part 759 page 209, Awuse v. Odili 2003 19 part 869, and the Federal Steam Navigation Company Ltd. v. Department of Trade and Industry 1974 2 All ER 97.
In their own brief of argument, the learned Senior Advocate for the 1st and 2nd Respondents submitted that a Petitioner cannot combine the ground of exclusion envisaged and anticipated or even provided for under Section 145(1) (d) with the other grounds provided under Section 145(1) (a) (b) and (c) of the Electoral Act, as doing so will make his Petition speculative, self contradictory, inconsistent and devoid of any cause of action. He relied on the cases of Lakede v. Otubu 2001 7 NWLR part 712 page 256, and NB v. Ezeifo 2001 12 NWLR part 726 page 11. The Learned Senior Counsel further argued that the use of ‘any’ in Section 145(1) of the Electoral Act is instructive, and that the use of the word ‘any’ in Section 145(1) of the Electoral Act supra, is to give the Petitioner only an opportunity to pick from one or the grounds listed in Section 145(1) (a) (b) and (c) of the Electoral Act. The use of the word ‘or’, according to him demarcates the list in Section 145(1) (a), (b) and (e) from Section 145(1) (d), The word ‘or’ makes it disjunctive. Reliance was placed on the cases of Arubo v. Aiyeleru 1993 3 NWLR part 280 page 126 and Abia State University v. Anyaibe 1996 3 NWLR part 439 page 646. It was further submitted that the use of the word ‘alternative’ cannot be allowed in respect of grounds for a Petition; it can only be claimed or made in the alternative in respect of the reliefs. See ANPP v. Haruna 2003 14 NWLR part 841 page 546. The Learned Counsel likened the claim of the Appellants/petitioners to claim of trespass and possession, which cannot he says cannot hold, relying on the cases of Ibeziako v. Nwagbogu & Anor 1972 ANLR 693, and Aromire and ors v. Awoyemi 1972 ANLR 105.
The 3rd Respondent’s Senior Counsel in reply contended that under Section 143(1) (a).- (c) a Petitioner may plead any or all of the grounds on the subsections but cannot plead those grounds in addition to ground (d) of the subsection. He referred to Section 18 (3) of the Interpretation Act.
The Learned Senior Advocate submitted that the lawmakers were very decisive, exact and clear in their use of words and punctuations in the said Section 145 of the Act. That the word ‘or’ after (c) is disjunctive, dividing grounds (a), (b) and (c) on one hand, which can be pleaded collectively or alternatively from ground (d) which on the other hand is separate on its own.
In their own Respondents’ brief of argument the Learned Senior Advocate for the 4th – 808th Respondents submitted that a Petitioner who relies on the ground of valid nomination but unlawful exclusion cannot rely on the ground of irregularities of corrupt practice in the conduct of the election, as the grounds of a petition cannot be pleaded in the alternative, only reliefs may be so presented. See ANPP v. Haruna supra. His argument as to the meaning of the word ‘or’ and ‘any’ in Section 145 are virtually the same with that of the 3rd Respondent. He went further to urge the Court to dismiss the Petition as it failed to meet the requirements of the law. He placed reliance on the cases of Adesanya v. President of the Federal Republic of Nigeria 1981 2 NCLR 358, Thomas v. Olufusoye 1985 1 NWLR part 18 page 669, Attorney General of Adamawa v. Attorney General of the Federation 2005 18 NWLR part 958 page 581, and Olagunju v. Yahaya 1998 3 NWLR part 542 page 501, saying this court has no jurisdiction to entertain the Petition.
Basically, the argument under this Issue should revolve around the interpretation of Section 145 of the Electoral Act supra only, and not other extraneous, or unrelated matters that have no bearing on the complaint in the corresponding ground of appeal that is tied to this issue. The Independent Electoral Commission is a creation of the constitution vide Section 153 of the Constitution of the Federal Republic of Nigeria 1999, and so the Electoral Act from which it was made is the applicable law. That being the position, the provisions of the Act are binding, and in as far as proceedings in election matters are concerned, the said provisions govern them, irrespective of other constitutional provisions. An Electoral Tribunal is bound by them and must apply them accordingly. That is in fact why I think the gravemen of this issue rests on the interpretation of this pertinent provision. For the purpose of clarity I. will reproduce the said provision hereunder. It reads:-
“145(1) An election may be questioned on any of the following grounds;
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election, or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
(2) An act or omission which may be contrary to an instruction or directive of the commission or an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”
My immediate observation of the provisions is that (a), (b) and (c) are lumped together, in the sense that they are punctuated by semi colons. What does that mean To be able to answer this question I will look, at the definition of semi – colon as is in Shorter Oxford English Dictionary. It states:-
“In its present use it is the chief stop intermediate in value between the comma and the full stop.”
I would add that it is a very short pause between two clauses. So in essence, these paragraphs (a), (b) and (c) are like continuation of one to the other, but with pauses. In other words, they belong to the same class. After stating ground (c), together with the semi colon, the draftsman, then went on to add the word ‘or’, a word which I think distinguished the grounds in (a) (b) and (c) from the provision in paragraph (d) that immediately comes thereafter. My answer to the question I earlier asked is that paragraphs (a) (b) and (c) belong to the same family and category. If all the paragraphs (a) (b) (c) and (d) were meant to fall within the same category, then the word ‘or’ wouldn’t have been used. Now, what does the word ‘or’ stand for
According to Section 18(3) of the Interpretation Act:-
“The word ‘or’ and the word ‘other’ shall in any enactment be construed disjunctively and not as implying similarity.”
In the same Oxford Dictionary, the word disjunctive is defined as:-
“Having the property of disjoining; characterized by separation involving a choice between two or more things or statements; alternative,”
The above definitions definitely shed some light on the fact that paragraph (d) is not an extension of the earlier paragraphs, but is separate, and an alternative. If the legislature had wanted paragraph (d) to be a continuation of the three preceding paragraphs, there wouldn’t have been any need to use the word ‘or’.
It is a cardinal principle of law that a Statute must be given its correct and true interpretation and not an interpretation that does not represent the intent and purpose of the legislation, and what the legislature had in mind when it was enacted. The duty of the court is to construe each and every word the way it should be construed, and not to go outside it to give a different connotation from what was envisaged by the legislature.
In the instant case the provision of Section 145 of the Electoral Act is as clear and crystal, as it is straight forward and written in plain language, as not to mislead any court in its interpretation. It is trite that words in an act should be given their ordinary and literal meaning, most especially where the words used are clear and unambiguous, as in the instant case. See N.B.N. Ltd v. Opeola 1994 1 NWLR part 319 page 126, Akinfosile v. Ijose 1960 SCNLR 447, and Macaulay v. R.Z.B. Austria 2003 18 NWLR part 852 page 286.
In this wise, I subscribe to the interpretation given by the Lower Court when it held thus:-
“We find that having relied on the ground of valid nomination and unlawful exclusion, the petitioners are, ordinarily, precluded from relying on any other ground under Section 145(1) of the Electoral Act, 2006 and the alternative grounds ought to be struck out. After all it has been variously held that where a statute provides a particular mode of performing a duty regulated by statute, the method, and no other, must have been adopted.”
I couldn’t agree more. It is instructive to note that the Appellants having presented a case that they have been unlawfully excluded from the election, they cannot again in the same breath allege malpractices in an exercise that they have alleged they were not a part of. By so doing, they are approbating and reprobating, a situation, which the law frowns on.
Perhaps, I should re-emphasize here, that the Appellants should have kept to the provision of Section 145 of the Electoral Act supra and predicate their Petition on any or all of the grounds stated in paragraphs (a) – (c), or paragraph (d) only of the said provision. Joining all together in one Petition was certainly against the tenet of the provision. Indeed, I would have also struck out the Petition for being incompetent, but because of the nature of the appeal, and its importance.
Since the position of the law as expounded above is that a Petitioner cannot base his petition on all the grounds stipulated in Section 145 supra. I will treat this appeal on ground (a) supra in the Petition, being the first ground in the Petition. Consequently, I will deal only with issue (2) supra in the Appellants’ brief of argument, as it is the only issue relevant to the argument on ground (9). The issue is in par materia with issues i and v in the 3rd Respondent’s brief of argument, issues (2) (3) in the 4th-808th Respondents’ brief of argument, and issue.(1) in the 1st and 2nd Respondents’ brief of argument.
In arguing issue (2) the Learned Senior Advocate for the Appellants invoked the provision of Section 42 of the Constitution of the Federal Republic of Nigeria supra. This provision states the following:-
“42(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such person –
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinion are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions.
The Learned Senior Counsel has urged the court to read the above provision together with the provision of Section 17(1) and (2) of the same Constitution, which revolves on freedom, equality and justice. According to the Learned Senior Counsel fairness in an election requires that:-
(i) There is equality between the voters, none being allowed to cast more than one vote or to have greater weight attached to his vote;
(ii) Participation by the candidates is on the basis of equality of treatment by the authorities, none being subjected to unfair restrictions or have ‘hurdles’ put in his way or be accorded in fair advantage or be otherwise unfairly favoured in relation to others, in language currently in common use, the authorities must maintain a level playing field for all the candidates;
(iii) Political parties are free to sponsor candidates and canvass for votes in a truly competitive sense and on the basis of equal treatment with other political parties;
(iv) The territorial units of representation are demarcated as to be equal in population as possible and so as not to favour some people against others (Sections 72 and 113 of the Constitution);
(v) Those entrusted with the conduct of an election are not agents of, or are not subject to direction by, any of the contestants or the political parties sponsoring them (Sections 153 – 158 of the Constitution; Sections 29 and 30 of the Electoral Act 2006)
(vi) The contest is in fact conducted impartially and fairly according to laid down rules binding on all, giving no unfair advantages to one candidate and his political party while imposing unfair restrictions on another.
(vii) The result are based on, and truly reflect, the votes lawfully cast at the election by the voters and are free of falsification, inflation or other fraudulent manipulation of figures;
(viii) The winner is determined by a majority or the highest number of such lawful votes,
It is the contention of the Learned Senior Counsel that an election is invalidated by the lack of or absence of any of the above elements of fairness. He placed reliance on the United States of America cases of Baker v. Carr 369 U.S. 186, and Wesberry v. Sanders 376 U.S. 1. According to the Learned Senior Counsel if as the Lower Court observed “hurdles” were placed on the 1st Petitioner by the authorities, the 1st Petitioner cannot be said, reasonably and fairly, to have participated in the process of the election in the sense required by the principle of free, fair and credible election. Reliance was placed on the case of Nwole v. Iwuagwie 2004 15 NWLR part 895 page 61. The Learned Senior Advocate further argued that the lower court was in error when it focused solely on the 1st Petitioner’s participation on the polling day, ignoring the fact that an election is conceived by the Electoral Act 2006, not as a one day affair, but as a process spanning a period of time. He placed reliance on the cases of PPA v. Saraki 2007 17 NWLR part 1064 page 453, and Ojukwu v. Obasanjo 2004 12 NWLR part 866 page 169. It was further argued that it was an error for the lower court to construe as participation by the 1st Petitioner, participation by the 3rd Petitioner, who was not a candidate, and could not, as a political party, have been a candidate having regard to Sections 37, 40, 41, 42, 72,140(1), 144(2) and 145(1)(a) of the Electoral Act, and Section 177 of the Constitution supra; which expressly and specifically require a candidate to be a person.
In reply, the Learned Senior Advocate for the 1st and 2nd Respondents has argued that the Appellants were not arguing the issue within the provisions of the Electoral Act, but appealing to sentiment by referring to the provisions of the Constitution supra. He argued that there is nothing like constructive or technical exclusion within the meaning of Section 145 (1)(d) of the electoral Act. He referred to the statements of the Appellants’ witnesses, which were direct evidence from the Appellants themselves to debunk their claim of unlawful or technical or constructive exclusion from the election. Exhibit EP3/28 was also referred to, and according to the Learned Senior Counsel the cumulative effect of all this is that they constitute an admission against interest and such admission is the best form of evidence which an adversary will use against the opposing party and which the court is also enjoined to believe. See Onyege v. Ebere 2004 12 NWLR part 889 page 20.
The Learned Senior Counsel for the 3rd Respondent in their brief of argument contended that the names of the 1st and 2nd Appellants were included in the list of Presidential candidates at the election, but they pleaded facts which showed that they participated in the election in paragraphs 18 and 20 of their Petition, and he also referred to the evidence of Chief Tom Ikimi, and Exhibit EP3/281.
The Learned Senior Advocate for the 4th – 8th Respondents in response to the Appellants’ submission referred the court to the Appellants pleading participation in the election. He contended that the Appellants’ agents who were certified by the 3rd Respondent were at the election. Learned Senior Counsel also referred to the evidence of the Appellants’ witnesses. According to Learned Senior Counsel the Petition was manifestly, inconsistent, in the case it had sought to ‘put forward. He further submitted that there can be no partial exclusion or partial participation in an election. It is either the Petitioners were candidates or they were not, and for this submission he referred to section 139 of the constitution supra and Section 144(1) of the Electoral Act supra.
The Learned Senior Advocate for the Appellants in the Appellants’ reply brief replied that it is not inconsistent with claim of exclusion for excluded candidate to have agents at an election; nay at the collation centre. It is on record that the Court below made the following finding:-
“It appears that from the date of nomination until 16th of April, 2007, the 4th Respondent attempted to exclude the 1st petitioner from participating in the election. Certainly, some hurdles were placed on his way, which ordinarily should not be so. But by the judgment of the Supreme Court of 16th April, 2007, the coast was cleared for him to contest the election. It needs no further gain saying the fact that he participated in the election.”
What were these hurdles
In their Petition the Petitioners inter alia averred thus:-
“3. Your Petitioner is a registered Political Party in Nigeria. The 3rd Petitioner sponsored the 1st and 2nd Petitioners as candidates in the aforementioned Election.
14. Your Petitioners state that the Presidential Election held on 21st of April, 2007 was vitiated by acts of unlawful exclusion, widespread corrupt practices, bias and partiality; your petitioners also state that the result of the Election was substantially affected by non-compliance with the provisions of the Electoral Act 2006.
16. FACTS OF UNLAWFUL EXCLUSION
The facts on which the ground of unlawful exclusion is based are:-
(a) The 1st Petitioner was duly nominated by the 3rd Petitioner as its candidate for the 21st April, 2007 Presidential Election;
(b) Upon the nomination of the 1st Petitioner, the nomination form was duly completed and submitted to the 4th Respondent;
(f) In addition to sub paragraphs (a) – (e) above, the 4th and 5th Respondents, at different public for a and after nomination had closed, repeatedly declared and stated that the 1st Petitioner was disqualified from contesting the April 21, 2007 Presidential Election and implacably maintained this position until the day of the election.
(h) The Petitioners will contend that the action of the 4th and 5th Respondents as enumerated in paragraphs (a) – (b) above, deliberated and effectively excluded the 1st and 2nd Petitioners from engaging in a meaningful and effective contest as a candidate at the election for which he had been validly nominated by the 3rd Petitioner.
Particulars of unlawful Exclusion
(i) The 3rd Respondent by a letter dated 18th January, 2007 actually instigated the events that led to the unlawful exclusion of the 1st Petitioner.
(ii) Upon becoming aware of the letter by the 3rd Respondent during the screening, the 1st Petitioner, in his capacity as the nominated candidate, replied through his counsel, to the 4th Respondent, informing the 4th Respondent…
(iii) The 4th Respondent at no time thereafter reverted to the Petitioners about their response.
(iv) On the 7th day of March, 2007, the Federal High Court in suit No. FHC/ABJ/CS/03/2007 between Action Congress v. INEC & Anor; Judgment was delivered by Kuewumi J. in which it
was adjudged, amongst others, that the 4th Respondent lacked power to disqualify a candidate at an election and that such power lies with the court of law.
(v) Thereafter, in defiance of the said judgment, the 4th Respondent proceeded to publish its official list of candidates excluding the name of the 1st Petitioner. In addition, the said list was posted on INEC website.
(viii) Following the insistence of 4th Respondent on the 1st Petitioner’s unlawful exclusion, an action was instituted at the Federal High Court, Abuja………….
(ix) Your Petitioners shall lead evidence that in defiance of the Order/Judgment of the court, the 4th and 5th Respondents persisted in their decision to unlawfully exclude the Petitioners, and stated that it would only obey Orders made by the Supreme Court,
(xii) By reason of the unlawful exclusion, it became practically impossible for the 1st Petitioner to present himself effectively as a candidate at the election and for his supporters to canvass for votes on his behalf.
(xv) In the course of seeking reversal of his unlawful exclusion, a judgment of the Supreme Court was delivered on Monday, 16th April, 2007 where it was adjudged that the 4th Respondent had no power to disqualify a candidate in an election without a lawful court order,
(xvii) On Tuesday 17th April, 2007 the 809th Respondent in contravention of the Electoral Act, 2006, and the Constitution of the Federal Republic of Nigeria, 1999 issued an order prohibiting campaign and public meetings until after the date of the Presidential Election, which order was brazenly enforced by the law enforcement agencies.
(xviii) By the prohibition order issued by the 809th Respondent; the Petitioners were effectively deprived of the opportunity to under take their electioneering campaign up to the 20th April, 2007, when by law campaigns were to cease,”
It is manifestly clear from paragraph 3a supra that the Appellants participated fully in the presidential election of 21st April 2007, There was ample evidence to support the fact that the Appellants were not only candidates who participated in the said election, they took steps to comply with certain requirements expected of, them. The evidence of the 3rd Appellant’s Chieftain, like Chief Tom Ikimi, Alhaji Lai Mohammed, Alhaji Jauro Audu etc, and members of the said Action Congress who performed various functions during the election and at the various election venues are some pointers. To illustrate this, I will reproduce an excerpt of the evidence of Alhaji Jauro Audu which reads thus:-
‘That I am the party chairman of the Action Congress in Maiha Local Government representing the 1st Petitioner in this petition…that I was the one charged with the responsibility of monitoring the conduct of Presidential Election in the Local Government.”
If the names of the Petitioners were amongst the names of the Presidential candidates that participated, in the said election; and the list of the score of votes, how can they then say they were excluded.
I am not unaware that the election itself is not the only process questioned, the processes that led to the election itself also must also be considered. But the reality on the ground is that the Petitioners inspite of their averments supra, and the evidence of the 2nd Petitioner that:
(“The first Petitioner was the validly nominated candidate of the) (Action Congress; the political party that nominated us for the) (Presidential Election held on the 21st of April, 2007… The 4th (Respondent excluded us in the said election……………………………………………………………..)
(3. Atiku Abubakar………..AC 2,637,848”, they stood for the) election.
That they participated in the election is not in doubt whatsoever, and the fact that there was no level playing grounds as submitted by Professor Kasunmu SAN in his oral address in court, does not deviate from the fact that Petitioners were candidates in the election and actively participated in the process of that day. In this wise, I refuse to agree that the Petitioners were unlawfully excluded from the exercise. It is either they were excluded altogether, or not excluded. There is no two ways about it. I find the findings of the Lower Court on this unlawful exclusion ground satisfactory and correct, and I endorse it.
For the foregoing reasoning I resolve the issue in favour of the Respondents, and dismiss the grounds of appeal they are related to, because they fail. I have had the opportunity of reading the judgment just delivered by my learned brother Katsina-Alu J.S.C. and I agree that the appeal lacks merit and deserves to dismissed.
Appearances
Professor Ben Nwabueze, SAN, Professor A.B. Kasunmu, SAN Alhaji Abdullahi Ibrahim SAN, Rickey Tarfa, SAN, Chief Adeniyi Akintola, SAN, Chief Emeke Ngige, SAN, Adetunji Oyeyipo, SAN, Chief Titus Ashaolu, SAN, Omai Shitten, Esq., Dr. M. Ladan, Esq., H.A. Nganjiwa, Esql., Wole Iyanu, Esq., A.I. Owonikoko, Esq., J.O. Odubela, Esq., J.O. Babayemi (Mrs.), Gabriel Tsenyen, Esq., Rotimi Oguneso, Esq., Bamidele Aturu, Esq., Festus Keyamo, Esq., Sulaiman Usman, Esq., Abiodun Dada, Esq., R. Okotie-Eboh (Miss), Gbolahan Gbadamosi, Esq., D. Bassi (Mrs.) J.O. Ampitan (Mrs.) T. Osadare, Esq., O.A. Itedjere Esq., Y. Pitan, Esq., E. Okodaso (Miss) I. Zuofa (Miss), T.J. Aondo, Esq., W. Afiah, Esq., C. Nwiyi (Miss)For Appellant
AND
Chief Wole Olanipekun, SAN, with him Yusuf ali, SAN, Dr. Alex A. Izinyon, SAN, D.D. Dodo SAN, K.T. Turaki, SAN, Prof. Fidelis Oditah, SAN, Mohammed Adoke, SAN, Maureen Onyuike (Miss), K.K. Eleja, S.A. Oke, Ales Akoja, S.A. Babakebe, Precilla O. Odita, Kabir Akingbolu, Waheed Gbadamosi, Eubetta Amedu, Abimbola Kayode, Abdulaziz Ibrahim, Adamu Abbas, E.O. Izinyon, E. Ogbojiafor, Oluwasiji Alabi (Miss) Kauna Penziu, Kalat Bagaiya, Aikhimegbe Malik, Olugbenga Adeyemi for 1st and 2nd Respondent.
Chief Joe-Kyari Gadzamu, SAN, Chief Bolaji Ayorinde SAN, Chief Duro Adegoke, SAN, Paul Brokoro, SAN, Prof. Bolaji Olasonayi, Chief Olusola Oke, R.A. Lawal-Rabunu, Alhaji R.O. Yusuf, A.C. Ozioku, Esq., Chief Obi Nbakwe, Z.E. Abdullahi, Esq., Akiyibo Owukori Esq., C.P. Ali, Esq., S.I. Bamgbose (Mrs.) C.O. Egbuso (Miss), D.H. Bwala Esq., Y.A. Yamta, Esq., Maryam Kyari (Miss), A.U. Kingim, Esq., Dayo Babalola, Esq for the 3rd Respondents.
N.O. Agabi (CON), SAN, A.B. Mahmoud, SAN, Amaechi Nwaiwu, SAN, O.O. Uzzi Esq., Wole Adebayo, Esq., O.S. Obande, Esq., Musa Elayo, Esq., C.U. Ekomaru, Esq., Okon Efui, Esq., O.O. Obonno-Obla, Esq., Irene Ideya, (Mrs.) P.O. Ofikwu, Esq., R.A, Umiom, Esq., Ayo Akam Esq., Chuka Ugwu, Esq., Patience Osagiede, (Miss), Rita N. Ogar, (Mrs.), Darracott Osawe, Esq., Adam Abdullahi, Esq., Egang Agabi, Esq., Ifunanya O. Obumselu (Mrs.) John Ochogwu, Esq., O.M. Enebeli, (Mrs.) A. Ugar, (Miss), A. Sadawa Esq., for the 4th – 808th Respondents.For Respondent
