DIM CHUKWUEMEKA ODUMEGWU-OJUKWU v. UMARU MUSA YAR’ADUA & ORS.
(2007)LCN/2455(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of September, 2007
CA/A/EP/8/07
RATIO
DEFINITION OF WORDS – “ELECTED”: MEANING OF THE WORD “ELECTED”
“Blacks Law Dictionary 5th Ed. Defines ‘elected’ at page 464. It says “The word ‘elected’ in ordinary signification, carries with it the idea of a vote, generally popular, sometimes more restricted, and cannot be held to be the synonym of any other mode of filling a position.” PER AGBO, J.C.A.
LATIN MAXIM – “EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS”: MEANING OF THE RULE “EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS”
“‘expressio unius est exclusio alterius’ rule which means that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. See PDP v. 1NEC (1999) 11 NWLR (Pt. 626) 200; Buhari v. Dikko Yusuf (2003) 14 NWLR (Pt.841) 446; Ogbunyiya v. Okudo (1979) 6-9 S.C. 32. See also Halsbury’s Law of England, 4th Edition paragraph 876.” PER JOHN AFOLABI FABIYI J.C.A
ELECTION PETITIONS – CONTENT OF AN ELECTION PETITION: WHETHER AN ELECTION PETITION WHICH DOES NOT CONFORM WITH PARAGRAPH 4(1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT,2006 AS TO DEGREE OF PRECISION AND BREVITY IS DEFECTIVE AND CAN BE STRUCK OUT
“In Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303 this court held thus: “By virtue of paragraph 4(1)(d)&(6) of The First Schedule to the Electoral Act 2002, an election petition under the Act shall state clearly. The facts of the election petition and the ground or grounds on which the petition is based and the relief sought. An election petition which does not conform with paragraph 4(1) is defective and may be struck out by the Court or Tribunal. Thus averments in an election petition must meet the degree of precision and brevity as is consistent with a clear statement otherwise the averment will be struck out of being vague. In the instant case, some paragraphs of the appellant’s petition did not meet the degree of clarity required by paragraph 4(1)(d) of the First Schedule to the Electoral Act. In the circumstances, the Tribunal was right when it struck out the paragraphs of the petition. “See also W.A.P.C. v. Adeyeri (2003) 12 NWLR (Pt. 835) 517.”PER ABUBAKAR ABDULKADIR JEGA J.C.A.
ELECTION PETITIONS – NON-COMPLIANCE WITH THE PROVISIONS OF THE ACT: WHETHER NON-COMPLIANCE WITHOUT MORE IS SUFFICIENT TO INVALIDATE AN ELECTION
“Non-compliance with the provisions of the Act without more is not sufficient to invalidate an election. See Buhari v. Obasanjo (2005) 2 NWLR (pt. 910) 241; Yusuf v. Obasanjo (2005) 18 NWLR (PL956) 96. It follows that where insufficient facts or none at all are pleaded to establish substantial effect of the non-compliance on the result of the election, no reasonable cause of action has been made out.” PER AGBO, J.C.A.
ELECTION PETITIONS – SUBSTANTIAL NON-COMPLIANCE WITH SECTION 146 OF THE ELECTORAL ACT, 2006: WHAT A PARTY WHO FOUNDS HIS PETITION ON THE GROUND OF SUBSTANTIAL NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT MUST PLEAD AND PROVE
“A party who founds his petition on the ground of substantial non-compliance with the provisions of the Electoral Act must not only plead and prove substantial non-compliance but must also pursuant to the provision of s. 146 of the Electoral Act plead and prove that the non-compliance substantially affected the result of the election.” PER AGBO, J.C.A.
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria
Between
DIM CHUKWUEMEKA ODUMEGWU-OJUKWU Appellant(s)
AND
1. UMARU MUSA YAR’ADUA
2. GOODLUCK JONATHAN
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE CHAIRMAN, INDEPENDENT NATIONAL ELECTORAL COMMISSION
5. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
AGBO, J.C.A. (Delivering the Lead Ruling): The petitioner and the 1st respondent were candidates in the presidential election which was held on 21st April, 2007. The 2nd respondent was the running mate of the 1st respondent. The 3rd respondent was the body statutorily vested with the power and authority to conduct presidential election in Nigeria while the 4th respondent was the returning officer who declared the result of the election. The 5th respondent was the political party that sponsored the 1st and 2nd respondents for the election. After the declaration of the result of the election by the 4th respondent who declared the 1st respondent as having won the election, the petitioner, being dissatisfied with the result, filed this petition.
Upon service on the respondents of the petition, the 1st and 2nd respondents on 3rd August, 2007 filed a motion praying this court as follows:
1. An Order of this Honourable Court dismissing and/or striking out this petition.
AND FOR SUCH FURTHER OR OTHER ORDER as this Honourable Court may deem fit to make in the circumstances of this case.
AND FURTHER TAKE NOTICE that the GROUNDS upon which this is sought are as follows:
(i) That the petition is defective and in clear breach of the express provisions of the Electoral Act,
2006.
(ii) That some of the petitioner’s prayers do not flow from the petition.
(iii) That the petition is not properly constituted as persons or institutions who are proper, necessary or desirable parties and whose presence are required for a just determination of the petition have not been made parties.
The parties exchanged written addresses.
Also on the same 3rd August, 2007, the 3rd and 4th respondents filed a notice of preliminary objection seeking an order dismissing the petition on the grounds stated hereunder.
“(i) The petitioner has not disclosed any reasonable cause of action against the respondent, the petition having failed woefully to disclose any constitutional disqualification against the 1st and 2nd respondents who have not been shown to be disqualified to contest election into any office in Nigeria, particularly election into the office of President and Vice President respectively.
(ii) The petition has not disclosed any reasonable cause of action against the respondents as the grounds 1, 2 and 3 of the petition and the particulars thereunder as constituted have not shown that the election was not conducted substantially in accordance with principles of this Act or that non-compliance affected substantially the result of the election as envisaged under the provisions of section 145(1) of the Electoral Act, 2006.
(iii) The petition is a gross abuse of the process of the court
(iv) The Honourable Court lacks the jurisdiction and/or vires to entertain the petition as constituted.”
Both parties also exchanged written addresses.
With the consent of the parties, the two applications were consolidated and heard together. The 1stt and 2nd respondents in arguing their application raised two issues for determination to wit: (i) Whether the petition as presented before this Honourable Court is competent having not been brought in accordance with the provision of the Electoral Act, 2006.
(ii) Whether this Honourable Court has jurisdiction to entertain the petition.
The petitioner on the other hand distilled only one issue for determination to wit:
“Whether this Petition complies with the provisions of the constitution and the Electoral Act of 2006 as to confer jurisdiction on this Honourable Court to hear and determine same.” The 3rd and 4th respondents raised these four issues for determination in their argument viz:
(i) Whether the petitioner has disclosed any reasonable cause of action against the respondent, the petition having failed woefully to disclose any constitutional disqualification against the 1st and 2nd respondent who have not been shown to be disqualified to contest election into any office in Nigeria, particularly election into the office of President and Vice President respectively.
(iii) Whether the petition has disclosed any reasonable cause of action against the respondent, when the grounds 1, 2 and 3 of the petition and the particulars there-under as constituted have not shown that the election was not conducted substantially in accordance with principles of this Act or that non-compliance affected substantially the result of the election as envisaged under the provisions of section 145(1) of the Electoral Act, 2006.
(iii) Whether the petition is not a gross abuse of the process of the court.
(iv) whether the Honourable Court lacks the jurisdiction and or vires to entertain the petition as constituted.”
The petitioner on the other hand distilled a sole issue in determination to wit:
“Whether the court has jurisdiction to entertain this petition as properly constituted AND whether same discloses a reasonable cause of action.”
Both of these applications are in effect seeking the same prayers. They want this court to determine this petition at this stage without the necessity of their joining issues with the petitioner on the facts. I have carefully looked at the issues as adumbrated by all the parties and I believe that the 3rd and 4th respondents issues 1 and 2 completely takes care of all the issues articulated and argued by the parties in the two applications. This application shall therefore be determined in line with those issues as articulated.
Before going into the main issues, I find it necessary to briefly deal with the preliminary issues raised by the petitioner in his answer to the application by the 1st and 2nd respondents. The 1st and 2nd respondents predicated their prayer on three grounds. The third ground was “That the petition is not properly constituted as persons or institutions who are proper, necessary or desirable parties and whose presence are required for a just determination of the petition have not been made parties. In their written argument, no reference whatsoever was made to this ground and no argument was proferred in that regard. The petitioner bas argued that the respondent having not placed any argument before the court in relation to that ground has abandoned it. The petitioner is right. Any ground on which no argument is proferred is deemed abandoned. That ground is therefore of no moment in this application. The petitioner has also complained about the affidavit in support of the application of the 1st and 2nd respondent claiming they breach the provisions of the Evidence Act. The argument is of no moment. This is because evidence is totally irrelevant in preliminary objections whether oral affidavit or documentary. Preliminary objections are rather determined on the face of the processes filed and no more. A preliminary objection is an objection against the irregularity of a court process which if it succeeds terminates the proceedings at that stage. All that is necessary is that the objector puts the other party on notice of his objection and the ground for the objection. Evidence at this point is completely irrelevant. In fact the basic gain accruing from a successful preliminary objection is the obviation of the necessity to lead evidence in a trial. Once an action can be decided on a preliminary objection or pleadings, it will be absurd to subject the court to the futility of taking evidence, See Adigun v. Ayinde (1993) 8 NWLR (Pt.313) 516, Mills v. Renner (1940) 6 WACA 144.
These applications have challenged the competence of the petition. For the purpose of these applications, I consider relevant, the provisions of Ss 140(1), 145(1), 146 of the Electoral Act, 2006 and paragraph 4 (1, 2, 3 and 6) of the first scheduled to the Electoral Act, 2006.
S. 140(1) No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or under return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the constitution or of this Act, and in which the person elected or returned is joined as a party.
S.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.
S.146. An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.
Para. 4(1) An election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the rights of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) state clearly the facts of the election petition and the ground or grounds On which the petition is based and the relief sought by the petitioner.
(2) The election petition shall be divided into paragraphs each of which shall be confined to a distinct issue or major facts of the election petition, and every paragraph shall be numbered consecutively.
(3) The election petition shall further:
(a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned, having polled the highest number of lawful votes cast at the election or that the election may be declared nullified, as the case may be, and
(b) be signed by petitioner or all petitioners or by the solicitor, if any, named at the foot of the election petition.
(6) An election petition, which does not conform with, subparagraph (1) of this paragraph or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.”
I shall further set out in extenso the petitioner’s grounds and facts which are being attacked in this application. They read:
9. Your petitioner’s grounds for bringing this petition are as follows:
Ground 1
The election in which the 1st and 2nd respondents were declared winner was not conducted in compliance with the 1999 Constitution and the Electoral Acts, 2006.
Particulars
(a) Copies of voters list was never displayed.
(b) Supplementary voters list register was never published
(c) The ballot papers for the said-election were not numbered serially as commanded by law.
(d) Alternatively, if any voters register was never published within the stipulated time, but in any event, it was never displayed or published in South East Zone of the county at all. Your petitioner will rely on the unanswered advertorial complaint of OHANEZE in the Vanguard Newspapers of April 12, 2007.
Ground 2
The said election did not meet the minimal requirement of electoral democracy and the law and the Electoral Act, 2006
Particulars
(a) Voting was not done in secret. For the first time in the history of election in Nigeria, no polling booths were provided by the 3rd respondent and the voters voted in public and also cast their votes in public.
(b) Military men were used by the Commander-in-Chief who like the 1st respondent, belongs to the 4 respondent and who was the Campaigner-in-Chief of the 1st respondent, to intimidate the electorate throughout Nigeria.
(c) The agents of the petitioner and other agents of other opposing Presidential candidates were not allowed to witness the collection or counting of votes or the compilation of result.
(d) Yours petitioner was not allowed by the 3rd respondent into the offices of the 3rd respondent in Anambra state to observed the compilation of results.
Grounds 3
Rudimentary requirements of fairness and equal treatment provided by the Constitution and the Electoral Act were not extended to the petitioner and to potential voters in Anambra, Imo, Abia, Enugu and Ebonyi State
Particulars
(a) Voting did not take place in more than 98% of the polling stations in the said states at all and the right to vote, the initial allocation of the franchise to the potential voters in those states was lost as a result of arbitrary and discriminatory conduct of the 3rd respondent.
(b) presidential Election has Nationwide Constituency and failure to give any voters their right of franchise nullifies the entire election because there is no divided sovereignty for the election of a Presidential or at all
(c) The 4th respondent announced on air that elections for the office of President would in compliance with section 47 and48 of the Act take place between 10am and 3pm throughout Nigeria, but no voting took place in the said zone on the said date and zone except at night in less than 2% of the polling stations in the zone where the 5th respondent’s governorship candidates “voted” at night in their homes.
Ground 4
The 1st and 2nd respondents are not qualified to contest for an election to the office of President and Vice President, respectively, because having been employed by people of Katsina and Bayelsa State as their Chief Public Servant or Chief Executives they did not, contrary to section 137(1)(g) of the 1999 Constitution, resign or withdraw from their offices as executive governors at all prior to the said Presidential Election.
Paragraph 4(1)(d) of the first schedule to the Electoral Act, 2006 commands that an election petition shall state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner, while paragraph 4(2) demands that the petition be divided into paragraphs each of which is CONFINED to a distinct issue or major facts of the election petition. The petition in the instant case has set out grounds of the petition and has in each ground tied and particularized facts underpinning or founding the said grounds. S. 145(1) of the Electoral Act, 2006 sets out and delimits the grounds upon which an election may be questioned. There are four grounds set out in the said section. Ground 1 of the petition clearly conforms with s. 145(1)(b) of the Electoral Act while ground 4 conforms with s.145(1)(a) of the Electoral Act. Ground 2 and 3 do not conform or relate to any of the four grounds setout in S. 145(1) of the Electoral Act and are hereby struck out.
But that is not the end of the matter. A party who founds his petition on the ground of substantial non-compliance with the provisions of the Electoral Act must not only plead and prove substantial non-compliance but must also pursuant to the provision of s. 146 of the Electoral Act plead and prove that the non-compliance substantially affected the result of the election.
Non-compliance with the provisions of the Act without more is not sufficient to invalidate an election. See Buhari v. Obasanjo (2005) 2 NWLR (pt. 910) 241; Yusuf v. Obasanjo (2005) 18 NWLR (PL956) 96. It follows that where insufficient facts or none at all are pleaded to establish substantial effect of the non-compliance on the result of the election, no reasonable cause of action has been made out. I have carefully perused the petition and no where have I seen pleaded facts establishing the substantiality of the effect of the alleged non-compliance with the provisions of the Electoral Act on the result of the election. Ground 1 therefore cannot be sustained and it is hereby struck out. Ground 4 of the petition challenges the qualification of the 1st and 2nd respondents to contest the April 21st 2007 Presidential election on the basis that being employees in the public services of the Katsina and Bayelsa State Governments, both candidates ought to have resigned their appointments at least 30 days before the date of the election pursuant to the provision of s.137(1)(g) of the 1999 Constitution. These respondents did not according to the petitioner resign from their jobs as executive Governors of the named States. State governors are, by the provision of Ss. 176 to 180 of the Constitution of the Federal Republic of Nigeria 1999 elected by the peoples of their respective States. They are not employed by the people of their States. Blacks Law Dictionary 5th Ed. Defines ‘elected’ at page 464. It says “The word ‘elected’ in ordinary signification, carries with it the idea of a vote, generally popular, sometimes more restricted, and cannot be held to be the synonym of any other mode of filling a position”. The word ’employment’ is not a synonym for the word ‘elected’. There is no iota of law supporting that ground. It is premised on frivolity and discloses no reasonable cause of action and it is hereby struck out.
There is complete want of reasonable cause of action in this petition. Each application succeeds. This petition is hereby struck out. There shall be no order as to costs.
OGEBE, J.C.A.: I had a preview of the lead ruling of my learned brother Agbo, J.C.A. and I agree with his reasoning and conclusion.
The four grounds challenging the presidential election contained in the petition are alien to section 145 of the Electoral Act, 2006. The petitioner confined himself almost entirely to complaints regarding the election in Anambra, Imo, Abia, Enugu and Ebonyi States. This has narrowed the petition to a small segment of the country which cannot possibly affect the result of the election in the remaining 31 States of the Federation of Nigeria and the Federal Capital. In other words, even if the petitioners’ complaints are genuine, they cannot possibly lead to the nullification of the entire presidential election in the whole country. In my opinion this petition is only of nuisance value, and it will be a colossal waste of judicial time and energy to hear it on the merit. It is completely incompetent.
Accordingly, I hereby strike it out with costs as assessed in the leading ruling.
FABIYI, J.C.A.: I have had the advantage of reading before now the ruling just delivered by my learned brother Agbo, J.C.A. I agree with the reasons therein advanced to arrive at the conclusion that the petition should be struck out for being incompetent.
I wish to chip in a few words of my own in support. From the tune of the petition, it is clear that the petitioner has grouse with the conduct of the election in the five states that make up the South East Zone of Nigeria. He did not raise any finger of complaint for the remaining 31 States and FCT Abuja. Even then, the petition is bereft of facts to buttress the general allegations made therein. To say the least, the petition failed to comply with the mandatory provision of paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2006.
Grounds 2 and 3 of the grounds for the petition which allege that the election did not meet the minimal requirement of electoral democracy and the law and rudimentary requirements of fairness and equal treatment not extended to petitioner and potential voters in the South East are alien to the mandatory provisions of section 145(1) of the Electoral Act, 2006. The petition appears incompetent and calls to question the jurisdiction of the court. See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 442.
It is clear that the petitioner raked up ground 4 to make up number. The ground alleged that the 1st and 2nd respondents as Governors of Katsina and Bayelsa States respectively, were not qualified to contest the election since they did not resign or withdraw from their offices as Executive Governors prior to the election.
Before couching ground 4, petitioner’s counsel should have read s. 137(1)(g) of the 1999 Constitution along with s. 318 of same. Related sections of the Constitution ought to have been read and interpreted together by him. Provisions of a statute should be read together to produce a harmonious result. See Akaighe v. Idama (1964) 1 All NLR 322, Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & anor (1981) 5 SC 112 at 134.
A Governor of a state is not included in the list of employees in the ‘public service of a State’ I should therefore remind the petitioner of the ‘expressio unius est exclusio alterius’ rule which means that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. See PDP v. 1NEC (1999) 11 NWLR (Pt. 626) 200; Buhari v. Dikko Yusuf (2003) 14 NWLR (Pt.841) 446; Ogbunyiya v. Okudo (1979) 6-9 S.C. 32. See also Halsbury’s Law of England, 4th Edition paragraph 876.
This is an election petition, which is sui generis. The petitioner who is trying to play a fast one should be made to realize the futility of his action at the earliest opportunity. There is no big deal in ground 4. It is clear that a Governor of a State is not an employee in the public service of the State. He was elected by the people of the state into a four year term of office; all things being equal, as the Chief Executive Officer who will deal with State affairs with all honesty of purpose. Ground 4, no doubt, is baseless. It was raked up for mischief, it seems.
It is for my above observations and the reasons well adumbrated in the ruling of my learned brother that I find that the petition is incompetent and should be struck out. I order accordingly. I endorse the order relating to costs in the lead ruling.
JEGA, J.C.A.: I read before now the ruling just delivered by my learned brother Agbo, J.C.A. I am entirely in agreement with the reasoning and conclusion arrived thereat.
The petitioner’s petition consists of four grounds which read as follows:
“1. The election in which the 1st and 2nd respondents were declared winners was not conducted in compliance with the 1999 Constitution.
2. The said election did not meet the minimal requirement of Electoral democracy and the law and Electoral Act, 2006.
3. Rudimentary requirement of fairness and equal treatment by the Constitution and Electoral Act were not extended to the petitioner and to potential voters in Anambra, Imo, Abia, Enugu and Ebonyi States.
4. The 1st and 2nd respondents are not qualified to contest for election to the office of President and Vice President, respectively, because having been employed by the people of Katsina and Bayelsa States as Their chief public servant or Chief Executives They did not contrary to section 137(1)(g) ofthe1999 Constitution resign or withdraw from Their offices as executive governors at all prior to the said presidential election. ”
It is very clear from the petition as constituted that it challenges the conduct of the election primarily in five out of the thirty six States and the Federal Capital Territory F.C.T. of the Federal Republic of Nigeria that is less than one seventh of all the States or a majority of the total votes cast. The States challenged even if conceded would not affect the majority of votes scored by the 1st respondent to reduce the constitutional spread of one quarter of all the votes cast in two thirds of the States of the Federation.
Besides, from the totality of petition as presented, there is complete absence of facts that would be led in evidence at the trial to support the petition. No facts were pleaded in the petition as required mandatorily by the provisions of paragraph 4(1)(d) of the First Schedule to the Electoral Act and Order 26 Rules 4(1)&(4) and 5 of the Federal High Court (Civil Procedure) Rules, 2000. The law is that any election petition under the Act shall clearly state the facts of the election petition and the ground or grounds on which the petition is based and the relief sought. An election petition which did not comply with paragraph 4(1)(d) of the First Schedule to the Electoral Act is defective and may be struck out by the Court or Tribunal.
In the instant petition, there is no iota of doubt that the petition as constituted is challenging the presidential election in only five States out of thirty six States and the Federal Capital Territory of the Federation of Nigeria did not meet the degree of clarity and precision to sustain an election petition.
In Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303 this court held thus:
“By virtue of paragraph 4(1)(d)&(6) of The First Schedule to the Electoral Act 2002, an election petition under the Act shall state clearly. The facts of the election petition and the ground or grounds on which the petition is based and the relief sought. An election petition which does not conform with paragraph 4(1) is defective and may be struck out by the Court or Tribunal. Thus averments in an election petition must meet the degree of precision and brevity as is consistent with a clear statement otherwise the averment will be struck out of being vague. In the instant case, some paragraphs of the appellant’s petition did not meet the degree of clarity required by paragraph 4(1)(d) of the First Schedule to the Electoral Act. In the circumstances, the Tribunal was right when it struck out the paragraphs of the petition.
“See also W.A.P.C. v. Adeyeri (2003) 12 NWLR (Pt. 835) 517.
The preliminary objection as to the competence of the petition is well taken and I have no hesitation in sustaining it. Accordingly, the petition is incompetent and it is hereby struck out.
I endorse the view expressed on costs in the lead ruling.
ABBA -AJI, J .C.A.: I have had a preview of the ruling just delivered by my learned brother Agbo, JCA. I agree with the reasoning and conclusions contained in the said ruling, that the petition is incompetent and same be struck out.
The Petitioners’ petition as constituted complained of the conduct of the election held on the 21st April, 2007 in the South East Zone of the country comprising of Anambra, Imo, Abia, Enugu and Ebonyi States out of the 36 States of the Federation and the Federal Capital Territory, Abuja. There was no complaint against the remaining 31 States and the F.C.T., Abuja. In a presidential election that has the federation as its constituency, the results of votes cast in the five States complained about will not in my view substantially affect the results of the entire election. I am fortified in my view the provision of section 134(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999. The section provides as follows:
“134(2)A candidate for an election to the office of President shall be deemed to have been duly elected. where, there being more only two candidates for the Election:-
(b) he has not less than one quarter of the votes cast at the election in each of at least two thirds of all the states in the Federation and the Federal Capital Territory, Abuja.”
With respect to the five States referred to in the petition, Anambra, Imo, Abia, Enugu and Ebonyi, there were no facts pleaded in the petition that will crystallize into evidence. The complaint therein was that there were no elections in nearly 98% of the States comprising the said five States and if there was any election at all, it was in respect of only the less than 2% that comprised the South East Zone as mentioned above. The said 98% where election did not hold was not stated and the 2% where election was alleged to have been conducted was also not stated in the petition. The facts are at large and are therefore vague.
The submission of the learned counsel for the Petitioner P. E. Nnaji Esq. that any election which does not cover the five States complained about should be declared a nullity for contravening the 1999 Constitution and the Electoral Act, 2006, can only be sustained where facts are clearly pleaded suggesting or showing such acts of contravention in the polling units and wards covering the said five States of the Federation. The Five States cannot be referred to as a single ward. It is the law that any election petition under the Act shall clearly state the facts of the election petition and the ground or grounds on which the petition is based and the relief sought. An election petition which did not comply with paragraph 4(1) of the first schedule to the Electoral Act is defective and may be struck out by the Court or Tribunal. In the instant petition, the averments contained in the petition challenging the election in these states did not meet the degree of clarity and precision to sustain an election petition. See Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303. In WAPC v. Adeyemi (2003) 12 NWLR (Pt. 835) 517. This court has defined material facts as follows:
“A material fact is one which is essential to a case and without which a case cannot be supported. It is that which tends to establish any of the issues raised. In the instant case, the material facts are the surrounding facts, circumstances or account of the accident as are necessary to be given in evidence by the respondent to successfully prove or establish her cause of action or claim.”
It is for this reason and the more detailed reasons in the lead ruling of my learned brother Agbo, JCA that I also strike out the petition for being incompetent. I abide by any consequential order made including any order as to costs.
Petition struck out.
Appearances
U. P. E. Nnaji (with him, Uzo Onwukwe;
A. Adeogun)For Appellant
AND
Dr. A. A. Izinyon, SAN (with him, D. D. Dodo, SAN; K. T. Turki, SAN; Prof. Fidelis Oditah, SAN; Mallam Mohammed Adoke, SAN; Maureen Onyiuke; A. M. Kayode, Esq.; Paulyn Abhulimen, Esq.;
S. O. Oke, Esq.; Chinedu Umeh, Esq.;
Festus Jumbo, Esq.; Martin Opara, Esq.;
Ronke Ifayefunmi [Miss]; Ken Omoruan, Esq.; H. Abduulratman [Mrs.]; Uche Awa [Miss]; Onyinye Unogu [Miss]; M. I. Hanafi; O. Adeyemi; Y. Davda; Alex Akoja; G. W. Nanbon) for the 1st and 2nd Respondents
Peter Ofekwu (with him, Mabel Ikechukwu and John Ochegwu) – for the 3rd and 4th Respondents
R. O. Yusuf (with him, G. U. Nwaneri, C. P. Oli, S. Bamgbose [Mrs.] and C. A. Arinze) – for the 5th RespondentFor Respondent
