AIYEDOGBON SAMUEL DURO V. INDEPENDENCE NATIONAL ELECTORAL COMMISSION & 20 ORS. (2010)

AIYEDOGBON SAMUEL DURO V. INDEPENDENCE NATIONAL ELECTORAL COMMISSION & 20 ORS.

(2010)LCN/4045(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of November, 2010

CA/I/EPT/NAHR/60/08

RATIO

LOCUS STANDI: MEANING OF THE WORD “LOCUS STANDI”

In the case of Inakoiu v. Adeleke (2007) 4 NWLR (1025) 423 @ 601 – 602 G-B & 685 C-D, relied upon by learned counsel for the appellant, the supreme court retreated the meaning of locus standi thus: “Locus standi or standing is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A

LOCUS STANDI: WHAT A PARTY MUST SHOW IN ORDER TO HAVE LOCUS STANDI

It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit. One criterion of sufficient interest is whether the party could have been joined as a party to the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship from the litigation.” (Emphasis supplied) See also: Thomas v. Olufosoye (1986) 1 NWLR (18) 659 @ 685; Fawehinmi v. Akilu (No. 1) (1987) 4 NWLR (67) 797; Bolaji v. Bamgbose (1986) 4 NWLR (37) 632. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A

INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 4 (1) (B) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2006 AS IT RELATES TO THE DUTY OF AN ELECTION PETITIONER TO SHOW THAT HE HAS SUFFICIENT INTEREST IN THE ELECTION UPON WHICH HIS PETITION IS BASED

Paragraph 4 (1) (b) of the First Schedule to the Electoral Act is clear and unambiguous. It provides: 4 (1)”‘An election petition under this Act shall (b) specify the right of the petitioner to present the petition.” There is no requirement in that provision for a petitioner to state in his pleadings that he has satisfied the provisions of Section 65 or 106 of the Constitution. This would amount to reading into the legislation provisions that are extraneous to it. See: Adewunmi V. A.G. Ekiti State & Ors. (2002) 1 SCNJ 27 @ 50. The case of Senator Ibikunle Amosun Vs INEC & Ors (supra) referred to, by learned counsel for the appellant is very instructive on the issue of the competence of an election petition vis a vis paragraph 4 (1) (b) of the First Schedule. This court held in that case that there is a distinction between the statutory provisions relating to qualification to contest an election and qualification to present an election petition. What the First Schedule requires is merely for the petitioner to show that he has sufficient interest in the election upon which his petition is based. The appellant in this case has fulfilled that requirement by not only pleading that he was a candidate in the election but also that votes were credited to him. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A

INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 4 (1) (C) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2006 AS IT RELATES TO THE CONTENT OF AN ELECTION PETITION THAT MUST BE SHOWN FOR IT TO BE COMPETENT

…the provisions of paragraph 4 (1) (c) of the First Schedule to the Electoral Act 2006 which Provides: 4. (1) “An election petition under this Act shall (c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; ” It is evident from the clear and unambiguous words used in paragraph 4 (1) (c) above, that for a petition to be competent one of the statutory requirements is that the scores of the candidates must be stated. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A

JUSTICES

KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

AIYEDOGBON SAMUEL DURO Appellant(s)

AND

INDEPENDENCE NATIONAL ELECTORAL COMMISSION & 20 ORS. Respondent(s)

KUDIRAT M. O. KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun state (hereinafter referred to as the lower Tribunal) delivered on 3/11/07 wherein the appellant’s petition was struck out for non-compliance with the provisions of paragraph 4 (r) (b), (c) and (d) of the First Schedule to the Electoral Act.
The appellant herein contested the election heard on 21/4/07 into the Federal House of Representatives in Ado Odo/Ota Federal Constituency of Ogun State on the platform of All Nigeria Peoples Party (ANPP) while the 3rd respondent contested the election on the platform of the peoples Democratic Party (PDP). At the conclusion of the election the 3rd respondent was returned as the winner having scored 78, 707 votes as against 6, 150 votes scored by the appellant. Being dissatisfied with the result, the appellant filed a petition before the lower Tribunal seeking the following relief:
(a) It be determined that the 3rd respondent did not win the April 21st, 2007 Federal House of Representatives Election in Ado Odo/Ota Federal constituency of Ogun state in that the 3rd respondent did not receive the highest number of lawful votes in at least two thirds of the Wards in Ado Odo/Ota Local Government of Ogun State.
(b) It be determined that the petitioner won the majority of lawful votes cast in all the 16 wards in Ado Odo/Ota Local Government Area of Ogun state in the April 21st 2007 Federal House of Representative Election.
ALTERNATIVELY
(c) It be determined that the Federal House of Representatives Election of April 21st, 2007 held in Ado Odo/Ota Federal Constituency of Ogun State is null and void, same having been bedeviled by violence, electoral malpractices, ballot stuffing, over voting, ballot box snatching and general noncompliance.
(d) An order nullifying the Federal House of Representatives Election held in Ado Odo/Ota Federal Constituency of Ogun State on April 21st 2007 including the return made thereto and other (sic) fresh election.
(e) An order that the Petitioner may ask for such further order(s) as the Tribunal may deem fit to make in the circumstances.
The parties duly filed and exchanged pleadings. By a motion on notice dated 9/10/07 and filed on 10/10/07 (pages 147 – 151 of the record), the 3rd respondent challenged the competence of the petition and sought the following reliefs:
1. An order striking out the entire petition for non compliance with the mandatory provisions of the Electoral Act 2006 and for being incompetent, a nullity and thereby robbing the Tribunal of jurisdiction to entertain same.
2. An order striking out paragraphs 2, 8, 9, 12, 13, 14, 15, 16 and 20 of the petition for being inconsistent and ambiguous.
3. And for such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances.
The grounds for the application were:
1. The petitioner did not state the grounds upon which the petition was brought contrary to the express provisions of S. 145 of the Electoral Act 2006 and paragraph 4 (1) (d) of the 1st Schedule made thereto.
2. The Petition did not disclose the holding of the election and the scores of the candidates that took part in the election as provided for under paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act 2006.
3. The Petitioner lacks the locus standi to present this petition as he did not clearly specify his right and capacity to present the petition as provided for under paragraph 4 (1) (b) of the 1st Schedule to the Electoral Act 2006.
4. The petition and all the averments contained therein is vague, speculative, inconsistent and fishy as opposed to the clear provisions of paragraph 4 (2) of the First Schedule to the Electoral Act 2000.
5. This Honourable Court lacks the jurisdiction to entertain this petition by reason of the incompetence of the petition a (sic) non compliance with the mandatory provisions of the Electoral Act 2006 and the 1st Schedule made thereto.
The parties filed and exchanged written addresses. In a considered ruling delivered on 3/11/07 the lower Tribunal struck out the petition for non-compliance with the mandatory provisions of paragraph 4 (1) (b), (c) and (d) of the First Schedule to the Electoral Act 2006.
Being dissatisfied with the ruling the appellant filed a notice of appeal dated 23/11/07 containing six grounds of appeal. In compliance with the Rules of this court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief, settled by A. A. Yesufa Esq. is dated 25/11/08 and filed on 6/2/09. The 1st, 2nd, 4th – 20th Respondents, brief, settled by Deji Balogun Esq. is dated 15/2/10 and filed the same day. It was deemed filed on 19/5/10. The 3rd respondent’s brief, settled by O.O. Ojutalayo Esq. is dated and filed on 16/2/10. It was deemed filed on 19/5/10. The 3rd respondent also filed a notice of preliminary objection dated and filed on 16/2/10. At the hearing of the appeal on 6/10/10 the Appellant and 1st, 2nd, 4th – 20th and 21st respondents, although duly served with hearing notices against that date were absent and unrepresented by counsel. Having filed their respective briefs of argument, the appellant and the 1st, 2nd, 4th – 20th respondents were deemed to have argued the appeal pursuant to Order 17 Rule 9 (4) of the court of Appeal Rules 2007. The 21st respondent did not file any brief.
As the 3rd respondent has filed a preliminary objection, it is necessary to consider it first before delving into the merits of the appeal. The 3rd respondent has argued the preliminary objection at pages 5 and 6 of his brief. The appellant did not file a reply thereto. The preliminary objection challenges the competence of the appeal on the ground that the record of appeal and appellant’s brief of argument were filed outside the period prescribed by the practice Direction No. 2 of 2007 and the Rules of this court. That the record of appeal was transmitted to this court seven months after the ruling complained of while the appellant’s brief was filed almost seven months after being served with the record of appeal without an application for extension of time within which to file it.
With due respect to learned counsel for the 3rd respondent, it is evident that the preliminary objection seeks the disposal of this appeal in limine on technical grounds. Parties have duly filed and exchanged their briefs of argument. There is no doubt that rules of court are prima facie meant to be obeyed. However where rules of court are used to enthrone technical as opposed to substantial justice, the court would rather ensure that substantial justice is done. In the affidavit annexed to the preliminary objection there is no exhibit showing the dates on which the record was transmitted to this court and when it was served on the appellant. Election matters are very sensitive, as they affect not only the candidates in an election but the entire electorate whose mandate they seek. For this reason courts have been admonished to ensure that as far as possible, election matters are heard on their merit. The parties in this appeal having duly filed and exchanged their respective briefs of argument based on the record of appeal transmitted to this court, I am of the view that it would be treading the path of substantial justice to consider the appeal on its merits. The preliminary objection is accordingly struck out.
From the six grounds of appeal, the appellant formulated the following four issues for determination:
(i) Whether, in the circumstances of the Petition, where on the pleadings, all the parties agreed that the petitioner was a candidate at the election, the Lower Tribunal was right to have held as it did that the Appellant (petitioner) lacked the “locus standi” to institute the petition.
(ii) Whether the Lower Tribunal was right to have struck out the Appellant’s petition or any part thereof on the basis of noncompliance with the provisions of Paragraph 4 (1) (c) of the First Schedule to the Electoral Act 2006. (Ground 3)
(iii) Whether the Lower Tribunal was right to have struck out the Appellant’s petition on the basis of non-compliance with the provisions of paragraph 4 (1) (d) of the First Schedule to the Electoral Act 2006. (Ground 4)
(iv) Whether the Lower Tribunal was right to have struck out paragraphs 8, 9, 12, 13, 14, 15, 16, 16 (c), 1b (d), 1b (e), 1b (f), 1b (g), 19 and 20 of the Appellant’s petition on the basis that they are “defective” for being vague, speculative and fishy. (Ground 5).
Grounds 2 and 6 of the notice of appeal are deemed abandoned as no issues were distilled therefrom. See: Odutola V. Kayode (1994) 2 NWLR (324) 1 @ 20.
The 1st, 2nd, 4th – 20th respondents formulated two issues for determination thus:
1. Whether the Election Tribunal was right in all circumstances of the case to strike out the petitioner’s petition for non-compliance with the mandatory provisions of paragraph 4 (1) (b), (c) and (d) of the First Schedule to the Electoral Act 2006 and Section 145 (1) of the Electoral Act 2006 for the reason that the Applicant/Petitioner had no locus standi to institute the petition.
2. Whether the Election Tribunal was right to have entertained the motion on notice filed by the 3rd and 21st respondents to strike out paragraphs 8, 9, 12, 13, 14, 15, 16, 16 (c), 1b (d), 1b (e), 1b (f), 1b (g), 19 and 20 of the Appellant’s petition as being defective, and in so doing upheld that the averments contained in the petition are vague, speculative and fishy.
The 3rd respondent distilled three issues for determination from the grounds of appeal as follows:
1.Whether the petitioner had sufficiently disclosed his locus standi to maintain and sustain his petition and thus fulfilled the mandatory requirement of the Electoral Act. (Ground 1)
2. Whether the Honourable Tribunal was not correct when it struck out the petition for being incompetent, a nullity and for noncompliance with the mandatory provisions of the Electoral Act 2006. (Grounds 3 & 4)
3. Whether some paragraphs of the petition are not defective for being vague, nebulous, speculative, fishy and incompetent thereby deserving of being struck out by the Tribunal.

Issue 1
The appeal shall be determined on the issues formulated by the appellant.
Whether, in the circumstances of the petition, where on the pleadings, all the parties agreed that the petitioner was a candidate at the election, the Lower Tribunal was right to have held as it did that the Appellant (petitioner) lacked the ‘locus standi’ to institute the petition.
In support of this issue, learned counsel for the appellant submitted that notwithstanding the averments in paragraphs 1 and 2 of the petition wherein the appellant pleaded that he was a candidate in the election which took place on 21/4/07, which were admitted by the 1st, 2nd, 4th – 20th and 3rd respondents in their respective /replies, the lower Tribunal in its ruling of 3/11/07 upheld the 3rd respondent’s contention that the appellant lacked the locus standi to have presented the petition. He noted that the Tribunal construed the provisions of Section 144 (1) of the Electoral Act 2006 in conjunction with paragraph 4 (1) (b) of the First schedule thereto and section 65 of the 1999 Constitution. He submitted that whereas Section 65 of the constitution deals with qualification for election, paragraph 4 (1) (b) of the First Schedule deals with the petitioner’s right to present the petition. Relying on the authority of Egolum v. Obasanjo (1999) 7 NWLR (611) 355 @ 385 B-D & 396 – 397 G – A, he submitted that there is a distinction between a petition presented by a person who contested an election and one filed by a petitioner who was wrongfully excluded from contesting the election. He submitted that it is in the latter circumstance that the petitioner would need to satisfy the provisions of section 65 of the constitution’ He submitted that the supreme court in Egolum’s case (supra) held that there is a presumption in favour of a person who actually contested an election that he was duly qualified to contest the said election.
He referred to the case of Inakoju V Adeleke (2007) All FWLR (353) 3 @ 99 – 97 where the supreme court held that locus standi simply means “interest in a suit” and submitted that insofar as the appellant had pleaded that he was a candidate in the election and that votes were recorded in his favour, he had shown that he had the locus standi to present the petition. He relied on the decisions of this court in: P.P.A. v. Saraki (2007) 17 NWLR (1064)453 @ 514 E-F & 517 – 518 H – A; Ibikunle Amosun V. I.N.E.C. & Ors. CA/I/EPT/GOV/10/2007 (unreported) delivered on 13/3/08.
In reaction to this issue, learned counsel for the 1st, 2nd, 4th – 20th respondents submitted that the petitioner was in breach of paragraph 4 (1) of the First schedule to the Electoral Act for failing to state his right to present the petition, that he was a candidate of a political party, the holding of the election, the scores of all the candidates and the person returned as the winner of the election. He submitted that election petitions being sui generis, any slight defect in complying with mandatory provisions of the electoral law and the constitution, which might have been cured or waived in ordinary civil proceedings, is fatal to the petition. He relied on: Buhari v. Yusuf (2003) 14 NWLR (841) 466; Egolum V Obasanjo (19991 5 SC (Pt.1) 2. He referred to Section 106 of the constitution, which provides for the qualification of a member of a House of Assembly. He submitted that by virtue of paragraph 4 (1) (b) of the First schedule to the Electoral Act, the appellant was bound to specify that he had a right to contest the election and that he was a member of a political party on the mandatory nature of the word “shall” in section 106 of the constitution and paragraph 4 (1) (b) of the First Schedule he referred to: Olowokere V. African Newspapers of Nig. Ltd. & Ors. (1993) 5 NWLR (295) 583 @ 600 and Chukwu V. Ezulike (1986) 5 NWLR (45) 892. He argued that locus standi is a threshold issue and since the appellant failed to show his locus standi, the lower Tribunal had no jurisdiction to hear the matter. He referred to: Dada v. Ogunsanya (1992) 2 NWLR (232) 754; Madukolu v. Nkemdilim (1962) 1 A.N.L.R. 589; Busari v. Oseni (1992) 4 NWLR (237) 557 @ 585.
The 3rd respondent conceded this issue.
In the case of Inakoiu v. Adeleke (2007) 4 NWLR (1025) 423 @ 601 – 602 G-B & 685 C-D, relied upon by learned counsel for the appellant, the supreme court retreated the meaning of locus standi thus:
“Locus standi or standing is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.

It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit. One criterion of sufficient interest is whether the party could have been joined as a party to the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury
or hardship from the litigation.” (Emphasis supplied)
See also: Thomas v. Olufosoye (1986) 1 NWLR (18) 659 @ 685; Fawehinmi v. Akilu (No. 1) (1987) 4 NWLR (67) 797; Bolaji v. Bamgbose (1986) 4 NWLR (37) 632.

The appellant in paragraphs 1 and 2 of his petition at page 3 of the record Pleaded thus:
1. Your Petitioner, Aiyedogbon Samuel Duro is a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the above election.
2. Your petitioner herein state (sic) that the election was held on 21st April 2007 when he, Aiyedogbon Samuel Duro and Kazeem Olakunle Salako together with others was credited with 28, 107 number of votes as against Aiyedogbon 6, 150 with Kazeem Olakunle Salako being returned as having been duly elected as Member, Ogun State Federal House of Representatives representing Ado Odo/Ota Federal Constituency of Ogun State of Nigeria.” (Emphasis supplied)
The 1st, 2nd, 4th – 20th respondents averred in paragraph 1 of their reply as follows:
1. The Respondents admit paragraph 1 of the petition only to the extent that the petitioner was a candidate in the election but deny all other averment (sic) contained therein and further put the petitioner to the strictest proof thereof. (Emphasis supplied)
The 3rd respondent admitted paragraph 1 of the petition in paragraph 1 of his reply without any qualification.
It was therefore clear from the pleadings that all the parties conceded the fact that the appellant was a candidate at the election. At page 236 of the record the lower Tribunal held thus:
“It is therefore in fulfilling the mandatory provisions of paragraph 4 (1) (b) of the First Schedule to the Act pursuant to Section 144(1) of the Electoral Act 2006 and S. 65 of the 1999 Constitution that would ensure compliance with the condition precedent to the presentation of a Petition. A Petitioner who was a candidate in an election must specify his right to present an election petition by pleading, among other qualifications, his membership of a political party and that he was sponsored by the political party in the election in question, This is so because the right to contest an election and the right to present an election petition are created by statute.”
Paragraph 4 (1) (b) of the First Schedule to the Electoral Act is clear and unambiguous. It provides:
4 (1)”‘An election petition under this Act shall
(b) specify the right of the petitioner to present the petition.”
There is no requirement in that provision for a petitioner to state in his pleadings that he has satisfied the provisions of Section 65 or 106 of the Constitution. This would amount to reading into the legislation provisions that are extraneous to it. See: Adewunmi V. A.G. Ekiti State & Ors. (2002) 1 SCNJ 27 @ 50. The case of Senator Ibikunle Amosun Vs INEC & Ors (supra) referred to, by learned counsel for the appellant is very instructive on the issue of the competence of an election petition vis a vis paragraph 4 (1) (b) of the First Schedule. This court held in that case that there is a distinction between the statutory provisions relating to qualification to contest an election and qualification to present an election petition. What the First Schedule requires is merely for the petitioner to show that he has sufficient interest in the election upon which his petition is based. The appellant in this case has fulfilled that requirement by not only pleading that he was a candidate in the election but also that votes were credited to him. It is a different situation from what occurred in Egolum’s case (supra) where the appellant was not a candidate at the election. In his petition he failed to state the basis upon which he claimed to have a right to present the petition. The Supreme Court held that he failed to establish his locus to present the petition. The respondents in the instant case admitted that the appellant was a candidate in the election. The appellant by his pleading showed sufficient interest in the petition to entitle him to be heard. This issue is accordingly resolved in favour of the appellant.

Issue 2
Whether the Lower Tribunal was right to have struck out the Appellant’s petition or any part thereof on the basis of non-compliance with the provisions of Paragraph 4 (1) (c) of the First Schedule to the Electoral Act 2006.
In respect of this issue, Learned counsel for the appellant submitted that the decision of the lower Tribunal is contradictory for on the one hand striking out only paragraphs 2 and 24 (a) and (b) of the petition for non-compliance with paragraph 4 (1) (c) of the First Schedule and on the other hand striking out the entire petition for being incompetent. He contended that the striking out of only paragraphs 2 and 24 (a) and (b) of the petition and the observation of the court that where there were other grounds upon which the petition could proceed the petition could subsist on those grounds, should be accepted as the Tribunal’s conclusion on the issue of noncompliance with paragraph 4 (1) (c) of the First Schedule to the Electoral Act. Relying on the case of Ujam V. Nnamani (2005) All FWLR (252) 1580, learned counsel submitted that where a petition includes alternative reliefs such that even if the issue of the winner of the ‘majority of lawful votes is excluded, the petitioner would still be able to prove his petition, the petition would be competent based on the alternative reliefs. Relying on Awuse V. Odili (2004) 8 NWLR (876) 481 @ 512 – 513 G – H; 514 – 515 A – B, E – F; 543 C – D, he submitted that where a petitioner states the holding of an election as well as the scores of the winner and of the petitioner he would have complied with the provisions of paragraph 4 (1) (c) and the petition would be competent.
He distinguished the cases of Abimbola V. Aderoju (1999) 5 NWLR (601) 100 @ 111; Ojong Vs Duke (2003) 14 NWLR (841) 581 and Khalil V. Yar’Adua (2003) 16 NWLR (847) 446 wherein it was held that compliance with the provision is mandatory from the circumstances of the instant case on the ground that the provisions of paragraph 49 (1) and (4) of the First Schedule to the Act were not considered. He was of the view that had the apex court averted its mind to those provisions it would have held that even if non-compliance were established, it was a defect that could be cured by paragraph 49 (1) and (4). He submitted further that the candidates whose scores were not stated are not parties to the petition and are not relevant to any of the issues for determination. He argued that since there are alternative reliefs this court should follow the decision in Awuse V. Odili (supra) so that substantial justice may be done and the petition heard on its merits. He submitted that the use of the word “may” in paragraph 4 (6) of the First Schedule to the Electoral Act gives the Tribunal the discretion as to whether or not to strike out a petition that does not comply with paragraph a (1) (c). He urged the court to hold that the lower Tribunal was wrong to have held the appellant’s petition to be incompetent or to strike it or any part thereof out.
Learned counsel for the 1st, 2nd, 4th – 20th respondents did not specifically address the issue of non-compliance with paragraph 4 (1) (c) of the First Schedule to the Act.
Learned counsel for the 3rd respondent submitted, relying on: Abimbola V Aderoju (1999) 5 NWLR (601) 100; Ojong Vs Duke (supra); Khalil Vs YarAdua (supra) @ 446, that by paragraph 4 (1) (c) of the First Schedule the law imposes a duty on the petitioner to disclose the scores of all the other candidates of other political parties who took part in the election. He noted that the appellant merely stated his own scores and the scores of the 3rd respondent. He submitted that failure to plead all the scores of all the candidates is not only fatal to the petition 6ut renders it defective, incompetent and liable to be struck out.
In considering this issue it is necessary to examine the provisions of paragraph 4 (1) (c) of the First Schedule to the Electoral Act 2006 which Provides:
4. (1) “An election petition under this Act shall
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; ”
It is evident from the clear and unambiguous words used in paragraph 4 (1) (c) above, that for a petition to be competent one of the statutory requirements is that the scores of the candidates must be stated.

This court has had two approaches to the issue of compliance with the provisions of paragraph 4 (1) (c) of the Electoral Act. See: Dickson Vs Balat (2004) ALL FWLR (215) 270 at 290 – 291 B-C. One approach is to construe the provisions as being mandatory and requiring strict compliance. See: Ojong v. Duke (2003) 14 NWLR (841) 581; Khalil v. Yar’Asua (2003) 16 NWLR (847) 446. It is however the law as stated earlier that in construing the provisions of a statute, the sections should not be read in isolation but in conjunction with other provisions to arrive at a proper understanding of the intention of the lawmakers. See: PDP v. Taiwo (2004) 8 NWLR (876) 656 at 676 D-F.
Paragraph 4 (6) of the First Schedule provides as follows:
“An election petition which does not conform to subparagraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the Tribunal or Court.
Thus, a combined reading of paragraph 4 (1) (c) with paragraph 4 (6) reveals that while a petitioner is expected to comply with the provisions of paragraph 4 (1) it is not in every instance of non compliance that the petition would be struck out for being defective. This is in keeping with the attitude of the Court to do substantial rather than technical justice, particularly in electoral matters, which are sui generis and periodical in nature. In certain cases the Court has held the petition to be competent where there is substantial compliance with the provisions. For instance, this Court has held in another line of authorities that failure to state the scores of candidates in an election would not be fatal to the petition where the scores are not relevant to the issues for determination. An example would be where the ground of the petition is that the person returned as elected was not qualified to contest the election. See: Oworu V. INEC (1999) 10 NWLR (622) 201; Ogbeide V. Osula (2004) ALL FWLR (191) 1622; (2004) 12 NWLR (886) 86 Osigwelem V. INEC & Ors, (unreported) CA/PH/EPT/369/2007 delivered on 31/1/08. Another example would be where the petitioner contends that the election was a nullity for electoral malpractices and non-compliance with the provisions of the Electoral Act. See also: Obuzor V Ake (2009) 2 NWLR (1125) 388 @ 416 G-H.
It is not in dispute that in the instant case, the petitioner only pleaded his own scores and the scores of the 3rd respondent. However as submitted by learned counsel for the appellant and as reproduced earlier in this judgment, apart from seeking a determination that he won the majority of lawful votes cast in the election, the appellant had an alternative claim for the nullification of the election on grounds of electoral malpractices and non-compliance with the provisions of the Electoral Act. In its ruling, the Tribunal at pages 230 (last paragraph) to page 231 (first paragraph) held as follows:
“Having failed to comply with this provision of paragraph 4 (1) (c) of the First Schedule, the petition is rendered defective and the paragraphs wherein any averments were made in relation to the issue of votes scored, are liable to be struck out. Where however there are other grounds upon which the petition can proceed to trial, the petition shall subsist on those grounds. Accordingly the said paragraphs 2, 24 (a) and (b) are hereby struck out as no evidence can be led thereon.”
(Emphasis supplied)
Surprisingly, at the conclusion of the ruling at page 240 of the record the Tribunal struck out the entire petition for noncompliance with the mandatory provisions of paragraph 4 (1) (b), (c) and (d) of the First Schedule to the Electoral Act 2006. This position is inconsistent with the earlier view expressed regarding the saving of the petition by the alternative reliefs sought. The purpose of pleading the scores of all the candidates who contested an election where the petitioner is seeking to be declared the winner is to provide the necessary materials upon which the Tribunal could base a decision in his favour. In view of the appellant’s alternative prayer, which could be proved without necessarily stating the scores of the candidates, the petition ought not to have been struck out for non-compliance with paragraph 4 (1) (c) of the First Schedule. This issue is accordingly resolved in favour of the appellant.
Issue 3
Whether the Lower Tribunal was right to have struck out the Appellant’s petition on the basis of non-compliance with the provisions of paragraph 4 (1) (d) of the First Schedule to the Electoral Act 2006.
Learned counsel for the appellant submitted that the intention of the legislature with regard to paragraph 4 (1) (d) of the First Schedule is to ensure that the averments in the petition show the grounds upon which the petition is brought so that the respondents are not misled as to the case they are to meet at the trial. He submitted that the aim is to afford the adverse party an opportunity to prepare his evidence and arguments upon the issues raised in the petition and to avoid taking the adverse party by surprise. He argued that there was nothing before the lower Tribunal to suggest that the respondents were misled by the appellant’s failure to separately itemise the grounds upon which the petition was based, particularly as they had filed replies thereto. He also contended that paragraph 4 (1) (d) does not make it mandatory that the grounds should be stated separately from the facts relied upon in the petitition.
He submitted that even if the lower Tribunal found that there had been non-compliance with paragraph 4 (1) (d), the petition could have been saved by the provisions of paragraph 49 (1) and (a). He also referred to paragraph 4 (6) of the First Schedule (erroneously referred to in his brief as paragraph 4 (d) on the discretion of the Tribunal to strike out the petition in the event of non-compliance with the provisions of paragraph 4 (1). He submitted that the objection was as to form and not substance. On the need for courts to eschew technicalities and do substantial justice in election petitions he referred to: Chia V. Uma (1998) 7 NWLR (516) 95; Egolum Vs Obasanjo (supra).
Learned counsel for the 3rd respondent referred to Section 145 (1) of the Electoral Act, which provides for the grounds upon which an election may be questioned. He submitted that paragraph 4 (1) (d) of the First Schedule to the Act provides that an election petition shall state clearly the facts of the election petition and the ground or grounds upon which the petition is based and the relief sought by the petitioner. He submitted that the failure of the appellant to comply with this provision renders the petition defective and liable to be struck out. He relied on the case of Hope Democratic Party V. INEC & Ors. CA/A/EP/5/2007 delivered on 20/8/07. He argued that the grounds of the petition are not clearly stated anywhere in the petition. He contended that the petition is fatally flawed and cannot be amended. On the consequences of failing to comply with conditions precedent to the filing of a petition he referred to: Effiong Vs Ikpene (1999) 6 NWLR (606) 260; Abimbola V Aderoju (supra) and Offomah V. Ajegbo (2001) 1 NWLR (641) 498. He submitted that a fundamental defect such as failure to state the grounds for the petition cannot be saved by paragraph 49 (1) of the First schedule. He submitted that the defect goes to the root of the entire petition. He relied on: Buhari V. Obasanjo (2003) 17 NWLR (850) 423; Ngwu V. Mba (1999) 3 NWLR (595) 500. He urged the court to resolve this issue in favour of the 3rd respondent.
Paragraph 4 (1) (d) of the First Schedule to the Electoral Act provides as follows:
4. (1) An election petition under this Act shall
(d) state clearly the facts of the petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.
Section 145 of the Electoral Act provides for the grounds upon which an election may be questioned thus:
145. (1) An election may be questioned on any of the following grounds, that is to say:
(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.
For an election petition to be competent therefore it must be predicated on one or more of the grounds stated in Section 145 (1) of the Electoral Act. The issue that arises in this regard is whether a petitioner is bound to state the grounds of the petition in separate numbered paragraphs or whether the grounds of the petition could be ascertained from the pleadings. It is correct as submitted by learned counsel for the 3rd respondent that due to the special nature of election petitions, failure to comply with conditions precedent to the presentation of a petition may result in fatal consequences for the petitioner where similar non-compliance with the rules in ordinary civil cases would not attract the ultimate penalty. Conversely, due to the peculiar nature of election petitions every effort must be made by the court to hear a petition on its merit and ensure that technicalities do not unduly fetter its discretion. See Oworu V. INEC (supra) at 212 0 213 H – A; Nwobodo V. Onoh (1984) 1 SCNLR 1; (198a) 1 SC 1 @ 195.
It is not in dispute that there is no separate paragraph in the petition, setting out separately the grounds for the petition.
A careful perusal of the various averments in the petition however reveal that the appellant’s complaints relate to electoral malpractices and non-compliance with the provisions of the Electoral Act such as failure to display the voter’s register and location of polling stations/units 14 days before the election (paragraph 13), electoral violence and acts of intimidation (paragraph 16) and ballot box snatching and stuffing (paragraph 1B). The appellant sought a determination that the 3rd respondent did not win the election by majority of lawful votes cast and that he be declared the winner or alternatively that the entire election be nullified for “being devilled by violence, electoral malpractices, ballot stuffing, over voting, ballot box snatching and general non-compliance.”
There is no doubt that the petition was brought pursuant to Section 145 (b) and (c) of the Electoral Act. The grounds of the petition although not separately pleaded are quite discernible from the body of the petition and the reliefs sought therein. Neither the parties nor the lower Tribunal could have been misled as to the grounds upon which the petition was filed. What is essential is that the parties know the case they are to meet at the hearing of the petition. I am of the respectful view that the lower Tribunal allowed undue reliance on technicalities to deny the appellant a hearing. I accordingly resolve this issue in favour of the appellant.
Issue 4
Whether the Lower Tribunal was right to have struck out paragraphs 8, 9, 12, 13, 14, 15, 16, 16 (c), (d), (e), (f), (g), 19 and 20 of the Appellant’s petition on the basis that they are “defective” for being vague, speculative and fishy.
In respect of this issue, learned counsel for the appellant submitted that by virtue of paragraph 50 of the First Schedule to the Electoral Act 2006 the practice and procedure in the Federal High Court including the Federal High Court (Civil Procedure) Rules 2000 are applicable. He submitted that by Order 26 Rule 4 (1) of the Civil Procedure Rules, pleadings are to contain a summary of the facts relied upon by a party but must exclude evidence by which those facts are to be proved. He argued that the appellant duly complied with the provisions. He submitted that evidence to establish the facts pleaded is contained in the written statements on oath of 8 witnesses attached to the petition as required by the Practice Directions. He contended that whether or not the pleadings were vague, speculative or fishy is an issue that ought not to have been resolved at the pre-hearing stage, as it relates to the ability of the petitioner to prove his petition at the trial stage. He noted further that notwithstanding the contention that the pleadings are vague, the two sets of respondents filed replies thereto and attached the written statements on oath of their proposed witnesses.
He argued further that even if the pleadings were considered vague, the respondents should have availed themselves of the provisions of paragraph 17 (1) of the Practice Directions to request for further and better particulars. He submitted that the Tribunal in this instance also ought to have leaned in favour of doing substantial justice.
Learned counsel for the 1st, 2nd, 4th – 20th respondents submitted that pleadings must be clear and unambiguous and must contain material facts being relied upon. He submitted further that a party must plead with clarity and precision the issues or question in dispute between the parties. He relied on: Nwankwo V. Nwankwo (1992) 4 NWLR (238) 693; Kawori V. Datori (1998) NWLR (556) 149; Uzodinma V. Udenna (2004) 1 NWLR (854) 318. He argued that the appellant failed to disclose material particulars of the electoral malpractices alleged in his pleading and the lower Tribunal rightly struck out the offending paragraphs of the petition.
The function of pleadings has been enunciated in many decisions of our superior courts of record. In the case of Morohunfola V. Kwara State College of Technology (1990) 7 SC (Part 1) 40, the Supreme Court held:
“It has often been stated and well settled that the main function of pleadings is to ascertain with as much certainty as possible the various matters actually in dispute between the parties and to isolate those in which there is agreement – See Oduka & Ors. v. Kasumu & Anor. (1968) N.M.L.R. 28 at 31. Hence a pleading is expected, to be sufficient, comprehensive and accurate as to the cause of action”
See also: Buhari Vs INEC (2008) 4 NWLR (1078) 546 @ 622 H; Sosanya v. Onadeko (2000) 11 NWLR (677) 34 @ 55 – 56.

The first issue to consider is whether the averments complained of are indeed vague, speculative and fishy and secondly whether the lower Tribunal ought to have struck out those paragraphs of the petition at the stage it did. I have carefully examined paragraphs 8, 9, 12, 13, 14, 15, 16, 16 (c), (d), (e), (f), (g), 19 and 20 of the petition. I shall consider a few of them.
In paragraph 8 of the petition it is averred that only a quarter of ballot papers issued to the 1st and 2nd respondents for the conduct of the election were distributed to the 16 wards in the Local Government. In paragraph 13 it is averred that the 1st and 2nd respondents failed to display the voters’ register, the names of persons entitled to vote and the location of polling units 14 days to the election. In paragraph 16 details are given of the various acts of electoral malpractice and non-compliance with the provisions of the Electoral Act complained of. In paragraph 16 (d) specific mentions was made of Igbesa Ward where it was alleged that all the 12 ballot boxes in the 12 polling units were snatched. In paragraph 16 (e) it is averred that in the polling units were the ballot boxes were snatched no result sheets were issued to polling agents. This is the nature of the pleading throughout the petition. While the drafting of the pleading may be considered inelegant in certain respects, the averments constitute a sufficient summary of the facts upon which the petition is based to meet the requirement of Order 26 Rule 4 of the Federal High Court (Civil Procedure) Rules.
As rightly observed by learned counsel for the appellant, notwithstanding the alleged vagueness of the pleading, both sets of respondents filed replies thereto supported by written statements on oath/ of potential witnesses. Whether the appellant would be able to prove the averments in the pleading at the trial is a different consideration altogether. This court in the case of Ogbeide Vs Osula (2004) 12 NWLR (886) 86 @ 118 B-C held thus:
“The flexibility with which an election proceeding can be handled is not the same as obtained in orthodox civil matters. This has to be so because of the sensitive nature of election petitions whereby strict rules of legal procedure are relaxed to ensure that the wish of the electorate is not sacrificed on the altar of procedural technicalities and legal finesse. Most of the decisions on election matters as of today are therefore based on substantial compliance. I therefore agree with the Tribunal that the yardstick for determining a purely civil suit is different from that employed in matters touching on election petitions.”
I am inclined to agree with learned counsel for the appellant that in the circumstances of this case, it was open to the 3rd respondent to request for further particulars under paragraph 17 (1) of the First Schedule to the Electoral Act if indeed he was unclear as to the facts being relied upon. In my humble view the pleadings were in substantial conformity with the requirement of pleadings as provided for by Order 26 Rule 4 of the Federal High court (civil Procedure) Rules. The alleged offending paragraphs ought not to have been struck out at the pre-hearing stage thereby completely shutting out the appellant. The law is settled that any evidence led on facts not pleaded goes to no issue. The lower Tribunal would have been in a better position to strike out or discountenance pleadings in respect of which no evidence was led at the trial or to disallow evidence in respect of facts not pleaded. The appellant would have had his day in court. I am of the view and I do hold that the pleading of the appellant was not vague, speculative and fishy and ought not to have been struck out by the lower Tribunal at the pre-hearing stage. I therefore resolve this issue in favour of the appellant.
In conclusion the appeal succeeds and is hereby allowed.
The ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun state in Petition No. EPT/OG/NAHR/40/07 delivered on 3/11/07 is hereby set aside. The petition shall be heard de novo by a differently constituted panel to be set up by the President of the Court of Appeal.
Costs of N30, 000.00 are awarded in favour of the appellant against the two sets of respondents.

MODUPE FASANMI, J.C.A: I have had the privilege of reading before now the lead judgment delivered by my learned brother K.M.O. Kekere-Ekun, J.C.A.
The issues raised have been exhaustively dealt with. I agree with the reasonings and conclusions reached therein. I adopt same as mine. The appeal is meritorious and it is also allowed by me. I also abide by the consequential orders made.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the rare privilege of reading in advance the exhaustive and closely reasoned judgment just pronounced by my learned brother, Kekere-Ekun, J.C.A. I fully subscribe to it. Being the apex court in respect of this category of litigation, I am inclined to put in some words, for emphasis.
Paragraphs 1 and 2 of the petition pleaded the candidature of the appellant in the election where he was credited with 6,150 votes. The respondents admitted them in their respective replies to the petition. It is settled that what is admitted needs no further proof – see Lewis and Peat (N.R.I.) Ltd. V. Akhimien (1976) 1 ALL N.L.R. (Pt.1) 460.
Section 144 (1) (a) of the Electoral Act, 2006, stipulates that:
“An election petition may be presented by one or more of the following persons… a candidate in an election.”
paragraphs 1 and 2 of the petition, accordingly, complied with the requirement for presentation of a petition by the appellant. The lower Tribunal was, with difference, wrong to hold that the appellant did not disclose his right to present the petition. See Inakoju V. Adeleke (2007) ALL FWLR (Pt.353) page 3 at 96 – 97.
Section 65 (1) (b) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, (the 1999 Constitution) deals with the qualification of a candidate to contest an election into the House of Representatives. It stipulates thus:
“(1) Subject to the provisions of section 66 of the Constitution, a person shall be qualified for election as a member of:-
(b) The House of Representatives, if he is a citizen of Nigeria and has attained the age of thirty Years.
(2) A person shall be qualified for election under subsection (1) of this section if:-
(a) he has been educated up to at least School Certificate level or its equivalent; and
(b) he is a member of a political party and is sponsored by that party.
Section 65(1)(b) and (2) of the 1999 Constitution (supra) constitutes one of the grounds for challenging the winner of an election under section 145 (1) (a) of the Electoral Act (supra) to wit:
“An election may be questioned on any of the following grounds, that a person whose election is questioned was, at the time of the election, not qualified to contest the election.”
The person whose election is questioned in an election petition is called the respondent by section 144 (2) of the Electoral Act. Sections 144 (2) and 145 (1) (a) of the Electoral Act read together with section 65 (1) (b) and (2) of the 1999 Constitution convey the inescapable conclusion that qualification to contest an election is one of the grounds for questioning the erection of a successful candidate in a petition. It is a weapon for the petitioner to use, in appropriate cases, against the winner of the election (respondent), not the converse – see the elaborate judgment of this court on the issue in Idris V. ANPP (2008) 8 NWLR (Pt.1088) 1 at 97-98.
The lower tribunal was, again, with respects, wrong to terminate the petition under section 65 of the 1999 Constitution.
Votes polled by the candidates were directly on the line in the reliefs sought by the petitioner in paragraph 24 (a) and (b) of the petition. There he challenged the majority of lawful votes credited to the 3rd respondent by the 1st, 2nd, and 4th respondents. Having put the scores of the candidates in issue, the appellant was obliged by paragraph 4 (1) (c) of the First schedule to the Electoral Act to plead the scores of all the candidates that participated in the election. He pleaded his score and that of the 3rd respondent only. The lower Tribunal was, therefore, right to strike out the complaint relating to majority of lawful votes in the petition – see Ujam v. Nnamani (2006) 2 EPR 155 at 172.
The petition had alternative reliefs for nullification of the election in paragraph 24 (c) (d) (sic) (d) thereof:
“ALTERNATIVELY
(c) It be determined that the Federal House of Representative Election of April 21st, 2007 held in Ado Odo/Ota Federal constituency of Ogun State is null and void, same having bring bedeviled by violence, electoral malpractices, ballot stuffing, over voting, ballot box snatching and general noncompliance.
(d) An order nullifying the Federal House of Representative Election held in Ado Odo/Ota Constituency of Ogun State on April 21st, 2007 including the return made thereto and (sic) other fresh election.”
The alternative reliefs (supra) had nothing to do with the return of the 3rd respondent or the appellant on the majority of lawful votes cast in the election. The petitioner was not, in the circumstances, required to plead the scores of all the candidates under paragraph 4 (1) (c) of the First Schedule (supra). The lower Tribunal should have saved the petition under the alternative reilefs in paragraph 24 (c) to (d) of the petition (supra). It erred in not doing so. The survived alternative reliefs together with the subsisting paragraphs 1, 2, 3, 4, 5, 6, 7, 10, 11, 17, 18, 21, 22, and 23 of the petition still sustained the petition. It should have proceeded to trial on the said reliefs – see Ukaegbu v. Uzor (2004) FWLR (pt.205) 336; and Wamini – Emi v. Igali (2008) 1 NWLR (Pt. 1097) 123.
Election petition is a sensitive matter. The stakes are high. Expectations are great. So are emotions. It affects a cross-section of the electorate represented by the disputants: call it a group action or representative litigation. Utmost care should therefore be taken to ensure it is heard on the merits. By doing so, truth would be revealed from the dispute. Democracy would feel fulfilled. The vote would count and be judicially vindicated.
The survived portion of the petition alleged inter-alia electoral banditry. A serious criminal allegation of such dimension deserved chance to be heard on the merits by the Tribunal. It should have used discretion under paragraph 4 (6) of the First schedule (supra) to save petition, which was not sick beyond cure. Regrettably, the Tribunal was hard on the petitioner by throwing out his petition in limine. I say no more.
The appeal is allowed for the above stated reasons and for the fuller reasons rendered in the judgment by my learned brother, Kekere-Ekun, J.C.A. I abide by the consequential orders contained in the said judgment.