PRINCE JOE DINMA AMADI & ANOR v. CHIEF MIKE IHEANETU & ORS
(2010)LCN/4161(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of December, 2010
CA/OW/EPT/98/09
RATIO
PER INCURIAM: WHAT CONSTITUTES A JUDGMENT GIVEN PER INCURIAM
The Supreme Court in ELEBANJO V. DAWODU (supra) stated what constitutes per incuriam at page 667 thus: “As a general rule, the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the Court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found to be demonstrably wrong.” PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 46 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT AS IT RELATES TO WHETHER THE POWER TO CONSOLIDATE SEVERAL ELECTION PETITIONS IN RESPECT OF ANY PARTICULAR SEAT AND HEAR THEM AS ONE PETITION IS GRANTED TO THE TRIBUNAL AND NOT THE CANDIDATES AND POLITICAL PARTIES
Order 12 Rule 1(1) of the Federal High court (Civil Procedure) Rules 2000 can only apply to the proceedings in a petition if there is no express provision in the Electoral Act, 2006. It is glaring that the Electoral Act, 2006 clearly provided for a situation as in this case in paragraph 46 of the First Schedule to the Act which provides as follows: “Where two or more petitions are presented in relation to the same election or return, all the petitions shall be consolidated, considered and be dealt with as one petition unless the Tribunal or Court shall otherwise direct in order to do Justice or an objection in line against one or more of the petitions has been upheld by the Tribunal or Court.” The above cited provision makes it mandatory for every person who is challenging the outcome of an election to present his election petition either alone or on the platform of the Party he contested the election. Where there are several election petitions in respect of any particular seat, the Tribunal shall consolidate them and hear them as one petition. The power to consolidate is granted to the Tribunal and not the candidates and political parties. What the Appellants as petitioners did in this case was to act extra-Judicially and consolidate the respective petitions which they could have apply for consolidation. That was a clear violation of the express provisions of the Electoral Act, 2006. Where a statute has made a mandatory provision for the procedure to be followed in doing an act that procedure must be followed. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPHS 2(3) AND 3(1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2006 AS IT RELATES TO THE NUMBER OF PERSONS THAT CAN PRESENT A JOINT ELECTION PETITION AND WHETHER THE PETITIONERS CAN BE MORE THAN THREE
With regard to paragraphs 2(3) and 3(1) of the Rules of Procedure for Election Petitions contained in the First Schedule to the Electoral Act, 2006. It is also very clear under the Electoral Act, 2006, the two persons who can present a joint election petition are a candidate and his political party in case of Legislative Houses Election. Similarly, a Governorship candidate and his running mate, or a Presidential candidate and his running mate. Each of the Presidential and Governorship candidates can also present a joint election petition under the Electoral Act, 2006. The situation where three persons can join to present a joint election petition can arise where – a) A Presidential candidate, his running mate and political party join to present a petition or b) A Governorship candidate, his running mate and his political party join to present a petition. Such situation does not arise in legislative houses election in this case where the candidates do not have running mates. Under the Electoral Act, 2006, there is no provision for more than three persons joining to present a joint election petition. It is beyond per adventure that paragraph 2(3) of the First Schedule to the Electoral Act, 2006 which provides for two or three persons is very explicit. There is no provision for “four or more persons” to present a joint petition, the express mention of one thing is the exclusion of others. Further a Community reading of the provisions of paragraphs 2(3) and 3(1) of the First Schedule to the Electoral Act, 2006 will disclose that while more than one person can present one election petition in respect of the same return, the petitioners cannot be more than three. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 144(1) OF THE ELECTORAL ACT, 2006 AS IT RELATES TO THE NUMBER OF THE PERSONS THAT CAN PRESENT ELECTION PETITION
Now the position of the law as to who can present a petition under- Section 144(1) of the Electoral Act, 2006 is stated eloquently in the decision of this court in GOLI v. BELIEF (supra) 585 at 604 – 605 per Galadima JCA (as he then was) as follows:- “This section to my mind creates two distinct rights that are mutually exclusive. A candidate on its own can present and file an election petition. Similarly, a Political Party, which sponsored a candidate at an election can also present a petition. The import of this provision is that the section under reference by its clear and unambiguous wordings never contemplated a joint petition by two separate and distinct persons in respect of an election in a constituency in so far as the separate persons and parties contested the election separately and filed separate Forms with Independent National Electoral Commission (INEC). A person who is aggrieved with the result of an election must seek remedy under the platform on which he contested the election without attempting to illegally form an association of candidates or parties that were defeated. Any attempt to interpret section 144(1) of the Electoral Act, 2006 to admit of Joint Petition by Parties and candidates will lead to an absurd or ridiculous situation where as many as 30 or more political parties that participated or contested the Presidential election will file one single petition with all their candidates. This cannot be the contemplation of the Legislature when the law was being made. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. PRINCE JOE DINMA AMADI
2. ACTION CONGRESS Appellant(s)
AND
1. CHIEF MIKE IHEANETU
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE PRESIDENT ELECTORAL COMMISSION, IMO STATE
5. THE ELECTORAL OFFICER, ABOH MBAISE (MRS. JULIET NKENDIRIM)
6. BEST NJOKU
7. ALL NIGERIA PEOPLES PARTY
8. TONY MGBEAHURIKE
9. ALL PROGRESSIVE GRAND ALLIANCE
10. MACDONALD AMADI
11. LABOUR PARTY Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling delivered on 22nd day of July 2009, by the Governorship and Legislative Houses Election petition Tribunal, by which ruling, the Honourable Tribunal dismissed the petition filed before it by the Petitioners.
The facts leading to this appeal are stated thus:-
The Appellants were the 3rd and the 4th Petitioners in an election petition filed on the 10th day of May, 2007, before the Governorship and legislative Houses Election Petition Tribunal, Imo State, in respect of the general election held on the 14th day of April, 2007. Their were eight petitioners in an comprising four Candidates and their four respective political parties. The petition challenged the return of the 1st respondent as the member representing Aboh Mbaise State Constituency, in Imo State House of Assembly.
After the exchange of pleadings, the 1st Respondent, by a motion filed on the 6th day of June, 2007, raised a preliminary objection. challenging the competence of the petition on grounds, inter alia, that the petitioners cannot present a joint petition, having regard to the provisions of Section 144(1) of the Electoral Act, 2006. By a ruling delivered on the 11th day of August, 2007, the Honourable Tribunal, then headed by Hon. Justice Ibrahim B. Majriga, dismissed the preliminary. The appeal filed by the 1st Respondent against the said ruling in Appeal No. CA/PH/EPT/487/2007 was struck out for being incompetent by court of Appeal. Port Harcourt Division in ruling delivered on the 14th day of July, 2008.
Upon the ruling of the Court of Appeal in Appeal No. CA/PH/EPT/187/2007, striking out the 1st Respondent’s appeal for being incompetent, hearing of the petition resumed before the Tribunal now composed of different members headed by Hon. Justice G.M. Nabaruma.
At the resumed hearing, the 1st Respondent once again filed another motion on the 20th of April, 2009, in which he raised exactly the Preliminary Objection which was considered and dismissed by the Hon. Tribunal on the 11th day of August, 2007. By a ruling delivered on 22nd July 2009 the Tribunal dismissed the grounds of objection but upheld the ground that the Petitioners cannot present a joint petition. The Tribunal dismissed the petition on the ground that it violated the provisions of Section 144(1) of the Electoral Act.
Being aggrieved by the said decision, the 3rd and 4th petitioners appealed against the same vide a Notice of Appeal containing on ground of appeal.
This appeal was heard on the 19th October 2010, learned Counsel to the Appellant Mr. N. Epelle, informed the court that the appellants’ brief of argument is dated 9/9/09 and filed on 11/0/09. Counsel adopted the brief of argument and urged the Court to allow the appeal Mr. E. Nwagwu states that the 1st Respondent’s brief of argument is dated and filed on 29/1/10. Learned counsel adopted the brief of argument and urged the Court to dismiss the appeal. Mrs. B. I. Amadi. Counsel to the 3rd – 5th Respondents informed the court that the 3rd to 5th Respondents’ brief argument is dated and filed the 12/10/09 and urged the Court to dismiss appeal.
By an order of this Court this appeal is being heard without the brief of the 6th, 7th, 8th, 9th, 10th and 11th Respondents.
From the sole ground of appeal filed by the Appellants, the Appellants formulated one Issue for determination which read thus:-
Whether the Honourable Chairman and members of the Governorship and Legislative Houses Election Tribunal. Imo State were right in law, in dismissing the Appellants’ petition and holding that the Appellants and their Co-Petitioners cannot present a joint petition having regard to the provisions of the Electoral Act. 2006.
Both the 1st Respondent and the 3rd to 5th Respondents adopts the sole Issue formulated by the Appellants.
In arguing the sole Issue for determination, learned Counsel for the Appellants submits that the basis upon which the lower Trial Tribunal dismissed the petition of the Petitioners is summed up in the ruling as follows:-
“Consequently, we hold that this petition is incompetent, having been jointly presented is different candidates and political parties that lost the election conducted by the 3rd Respondent (INEC) on the 14th day of April, 2007, for the Aboh Mbaise Constituency of Imo State in breach of the provisions of Section 144(1) of the 2008 Electoral Act.”
Counsel for the Appellants contends that the question therefore is, is there any provision in the Electoral Act 2006, or in any other law, rule(s) and regulation(s) governing election petitions that prohibits the presentation of a joint petition by several candidates and political parties. Counsel answered that there is no such prohibition under the law.
Counsel referred to section 144(1) of the Electoral Act, 2006 which provides as persons:-
144(1) An election petition may be presented by one or more of the following persons:
(a) a candidate in the election.
(b) a political party which participated in the election.
Counsel for the Appellants submits that Section 144(1) of the Electoral Act, 2006 as produced clearly prescribed the person who have the capacity and competence under the law, to present an election petition under the Act. That the section does not make any provision regarding joinder of parties in an election petition. Further that the section deals with the substantive issue of locus standi and not the procedural issue of joinder of parties, reference made to BUHARI V. YUSUF (2003) 14 NWLR (pt.841) 486 AT 499; BUHARI v. OBASANJO (2003) 113 LRCN 2472 AT 2513.
Counsel for the Appellants submits that to interpret section 144(1) of the Electoral Act, 2006 as prohibiting persons with locus standi from joining together in a petition clearly amounts to reading into that section, provisions that are absent therein – reference made to OKUMAGBA v. EGBE (1965) ANLR 64; SALAMI V. L.E.D.B. (1989) 12 SC 177 AT 197.
Counsel for the Appellants argues that the procedural law dealing with issues of parties in election petitions is the Federal High court (Civil Procedure) Rules, 2000 which is applicable in election petitions by virtue of Paragraph 50 of the Rules of procedures for election petitions contained in the First Schedule of the Electoral Act, 2006.
Counsel therefore submits that based on this applicable procedural rule, person who have locus standi to present an election petition may join in one action as petitioners, if the circumstances or the case meet requirements of Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000. That a consideration of the provisions of Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules, 2000 shows that joinder of plaintiff is permissible if the following circumstances exist:
a. the right to relief should be in respect of or arise out of the same transaction or series of transactions whether jointly or severally or in the alternative; and
b. The case should be such that, if the several person brought separate actions, any common question of law or fact would arise, and
c. The case should be such that Judgment may be given for one, of more of such Plaintiffs as may be found to be entitled to relief, without any amendment reference made to CROSS RIVER STATE NEWPAPERS CORPORATION V. ONI (1995) 26 LRCN 51; AYANKOYA V. OLUICOYA (1996) 35 LRCN 280.
It is submitted for the Appellants that the instant petition filed by the Appellants, and their co-petitioners, clearly met the requirement of Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules, 2000. That a perusal of the petition as contained at pages 1 -10 of the records of appeal, shows that the petitioner were the candidates and political Parties who contested the April 14, 2007 general elections with the 1st & 2nd Respondents, in respect of Aboh Mbaise State Constituency of Imo State. The 3rd Respondent was the body that conducted the said election while the 4th and 5th Respondents were the officials of the electoral body, declared the election in some wards inconclusive and issued directives fixing a date for the conclusion of the election. It is further the case of the petitioners, that the electoral body suddenly cancelled the earlier scheduled repeat election and later announced the 1st Respondent as the winner of the election. That the petitioners therefore filed a joint petition in which they prayed the Tribunal to annul the return of the 1st Respondent and to order the electoral body to re-conduct the election. That it is worthy to note that none of the petitioners prayed to be declared the winner of the election. It is contended for the Appellants that their claim as contained in their petition is covered by the conditions for joinder of Plaintiffs under Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000 were amply satisfied by the petitioners and the Honourable Trial Tribunal was therefore wrong to have dismissed the Petition for mis-joinder of parties.
Further, the Appellants’ Counsel argues that even if the Respondents felt that the joinder of petitioners may embarrass any of parties, or delay the trial of the petition, the remedy open to them is not to have the petition dismissed on that ground, but to apply to the Trial Tribunal as enjoined by Order 12 Rule 1(2) of the said Federal High Court (Civil Procedure) Rules, 2000, for separate trial of the action, or such others Orders as the Trial Tribunal may deemed expedient.
It also submitted for the Appellants that even the provisions of the Electoral Act, 2006, and the Rules of Procedure for Election Petition, as contained in the first Schedule to the Electoral Act, 2006, both recognize that a petition can be presented by numerous persons having locus standi to so, reference made to Section 144(1) of the Electoral Act. 2006. Paragraph 2(3) of the Rules of Procedure for Election petition contained in the first schedule of the Act and also paragraph 3(1) of the said Rules of Procedure for Election Petitions. Also referred to is paragraph 45 of the Rules of Procedure for Election Petitions as contained in the First Schedule to the Electoral Act, 2006.
Counsel to Appellants submits that the Trial Tribunal had rested its Judgment on the decision of the Court of Appeal in GOLI v. BELIEF (2009) 4 NWLR (PT.1132) 585. which the Trial Tribunal stated rightly that it is binding on it under the doctrine of stare decisis, that this Court is also expected by the same doctrine of stare decisis to follow the decision in the said case of GOLI v. BELIEF (supra) which is a decision of this Court. However, this Court by the contention of the Appellants’ Counsel is enjoined to depart from the said decision in GOLI v. BELIEF (supra) that a leading of the decision shows that the court of Appeal in arriving at its decision in that case did not consider the following relevant statutory provisions which it is argued for the Appellants would have affected the decision of the Court if the attention of the Court had been drawn to the provisions which provisions include:
a) Order 12 of the Federal High Court (Civil Procedure) Rules 2000, applicable to election petitions by virtue of paragraph 50 of the Rules of procedure for election petitions contained in the First Schedule to the Electoral Act, 2006.
b) Paragraph 2(3) of the Rules of procedure for Election Petitions contained in the First Schedule for the Electoral Act. 2006.
c) paragraph 3(1) of the Rules of Procedure for Election Petitions contained in the First Schedule to the Electoral Act, 1006.
d) Paragraph 4-5 of the Rules of Procedure for Election Petitions, contained in the First Schedule to the Electoral Act, 2006.
Counsel for Appellants submits that the decision in GOLI V. BELIEF (supra) was given per incuriam and urged this Court to depart from the same reference made to ROSSEK v. A.C.B. (1993) 8 NWLR (PT.312) 382; ADISA V. OYINWOLA (2000) 78 LRCN 2180.
To this effect Counsel for the Appellants contends that no jurisprudential basis or consideration has been shown making it imperative to prohibit joinder of petitions in an election petition. That the rule permitting joinder of parties is designed to achieve convenience of trial and avoid unnecessary multiplicity of Suits. It is true that election petitions may have been recognize as being sui generis, but this fact does not make election petitions any less civil proceedings or any less amenable to rules of Court designed to achieve Justice with convenience and less encumbrance without cumbersomeness.
Finally, learned Counsel for the Appellants urged the Court to answer the sole issue for determination in the negative and to hold that the Trial Tribunal was wrong in dismissing the Petitioners’ petition. Also urged the Court to hold that there is nothing under the Electoral Act, 2006 and other relevant Legislations prohibiting different Candidates and political parties from presenting a joint petition under tire Electoral Act, 2006. Counsel urge the Court to uphold and allow the sole ground of appeal in this appeal as being meritorious.
The 1st Respondent and 3rd to 5th Respondents’ briefs of argument are very similar in nature in their response to the 1st and 2nd Appellants submissions as such the briefs will be treated as one in this judgment.
In their reply to the submissions of Appellants the 1st and 3rd to 5th Respondents submits that the petitioners cannot jointly present the election petition under the law, that the action of various political parties in sponsoring different candidates were based on the provisions of section 31(1) of the Electoral Act 2006 which enjoined every political party to submit to the Independent National Electoral Commission the list of the candidates the part intended to sponsor at the general election not later than 120 days before the date appointed therefore. That there was no provision for more than one political party to jointly sponsor the candidates of the respective Political Parties.
As a result each of the various Political Parties sponsored the respective candidates of their political parties. That each political party and its candidate as petitioners stood for the election to be successful. Each of them therefore had a distinct cause of action to challenge the outcome of the election. Alternatively, each political party could in conjunction with the candidate file a separate petition against the outcome of the election.
Counsel to the Respondents contends that election petitions are “sui generic” and as such are considered to be distinct and completely divorced from civil proceedings. That because of its peculiar nature, guidance in the adjudication of election petition is to be drawn only from the relevant statute from which the Court derives its Jurisdiction. General principles of law applicable in civil matters are not primarily applicable per se to election petitions. The term “cause of action” in civil cases cannot be equated to “cause of action” in election petitions reference made to EZEOBI V. EZEAKA (1989) 1 NWLR (PT.98) 478.
Counsel to the Respondents referred to paragraph 50 of First Schedule to the Electoral Act, 2006 and submits that when applying the ordinary rules of procedure of the Federal High Court in civil matters to election matters governed by legislation, the express provisions of the relevant legislation must be held “inviolate” reference made to ABDULLAHI V. ELAYO (1993) 1 NWLR (PT.268) 171 AT 197. Counsel to the Respondents submits that Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules, 2000 does not apply in this case, also not applicable in the case is the case of CROSS RIVER STATE NEWSPAPERS CORPORATION V. ONI (1995) 1 NWLR (Pt. 371) 70 as the case was an ordinary Civil Proceeding.
Counsel to the Respondents argues that the law is that participation in an election either as a voter or candidate is an individual personal right and can only be enforced, exercised or protected by that individual and by no other person – reference made to ATT-GEN, ANAMBRA STATE V. ATT-GEN, FEDERATION (2007) ALL FWLR (PT.379) 1218 at 1271. Counsel therefore submits that it was a misjoinder of causes of action for all the 1st to 8th Respondents to unite their distinct causes of action to bring a joint petition.
Reference made to CIVIL PROCEEDINGS BY A. OBI-OKOYE Vol. 1 PAGE 116 PARA. 21. That each of the candidate petitioners and/or his political party could have maintained a separate petition and the Tribunal could invoke its powers under paragraph 46 of the First Schedule to the Electoral Act, 2006 to consolidate the petitions, reference made to GOLI V. BELIEF (2009) 4 NWLR (PT.1132) 585 at 602.
Counsel to the Respondents referred to section 144(1) of the Electoral Act, 2006 the cases of BUHARI V. YUSUF (2003) 14 NWLR (PT.841) 446 AT 499; OBASANJO V. BUHARI (2003) 17 NWLR (PT.850)520 at 560; GOLI v. BELIEF (2009) 4 NWLR (PT.1132) 585 at 604 and prayed the Court to hold that the joint election petition presented in his case is incompetent having regard to the provisions of the Electoral Act, 2006 and to resolve the Issue for determination in the affirmative.
Further the Respondents through their Counsel submits that the Electoral Act clearly provided that the situation in this case in paragraph 46 of the First Schedule to the Act, that the provision makes it mandatory for every person who is challenging the outcome of an election to present his election petition either alone or under the platform he contested the election where there are several election petitions in respect of any particular seat the Tribunal shall consolidate them and hear them as one petition. The power to consolidate was granted to the Tribunal and not to candidates and political parties who lost in an election. That what the Appellants did as petitioners was to act extra-Judicially and consolidate the respective petitions which they could have filed separately and thereafter applied for consolidation. That, that was clear violation of the express provisions of the Electoral Act, 2006. That where a statute has made a mandatory provision for the procedure to be followed in doing an act that procedure must be followed and not waived – reference made to MENAKAYA v. MENAKAYA (2001) FWLR (PT.76)742 AT 790 – 791.
Counsel to the Respondents argued that the invocation of the provisions of the Federal High Court (Civil Procedure) Rules, 2000 in the circumstances of this case does not arise because the Electoral Act made adequate provisions for the presentation of separate election petitions by different candidates and different political parties in respect of the same seat.
In response to the argument in Appellants in paragraph 3: 12 – 3.15 of the Appellants’ Brief, the Respondents’ Counsel submits that under paragraphs 2(3) and 3(1) of the First Schedule to the Electoral Act, 2006 two persons or three persons only can present a joint election petition in respect of the same return provided they participated in the election on the same platform. That this however does not apply to Legislative Houses Election as in this case. That the persons who can present a joint election petition are a candidate and his political party in the case of Legislative Houses Election. Similarly, a Governorship Candidate and his running mate or a Presidential Candidate and his running mate or a Candidate for the position of Chairman and his running mate in the Area Councils can present a joint election petition.
That paragraph 2(3) of the First Schedule to the Electoral Act, 2006 which provides for “two or three persons” is very explicit, there is no provisions for “four or more persons” to present a joint petition’ The Express mention of one thing is the exclusion of others not mentioned, reference made to A.G. ONDO STATE V. A.G. EKITI STATE (2001) FWLR (PT.79) 1431.
Further, counsel to the Respondent contends that the cases of OKUMAGBA V. EGBE (1965) ALL NLR 64 and SALAMI V. CHAIRMAN, LEDB & 3 ORS (1989) AWLR 773; cited by the Appellants are completely out of con and does not help their case in any manner. That the joint election petition brought by eight petitioners as in this case on appeal is clearly a violation of the express provisions of the Electoral Act and incompetent.
With regard to the Appellants’ submissions on paragraph 45 of the First Schedule to the Electoral Act, 2006, counsel to the Respondents contends that the said paragraph is inapplicable to this case, paragraph 45 aforesaid deals with an election petition under the Act where two or more candidates are made Respondents and not where they are made petitioners. That the Respondent was the only candidate who was made the Respondent to the petition. Furthermore, paragraph 45 aforesaid does not make provision for who can present an election petition.
Counsel to the Respondents argued that a Judicial decision is taken to have been given per incuriam where it was wrongly decided, usually because the Judge or Judges were ill-informed about the applicable law. As a general rule the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong, reference to ELEBANJO V. DAWODU (2006) ALL FWLR (PT.328) 604 AT 666. It is therefore submitted for the Respondents that the decision of this Court in GOLI V. BELIEF (2009) 4 NWLR (PT. 1132) was not given per incuriam as argued by the Appellants, the Court is therefore urged not to depart from it but to apply it in this appeal.
Finally this Court is urged to dismiss the appeal because the Electoral Act does not make any provision for the presentation of a joint election petition by eight Petitioners who lost election in one particular seat.
In resolving the sole Issue formulated for determination, it is most convenient to start with the determination of whether the decision of this court in GOLI v. BELIEF (2009) 4 NWLR (PT.1132) which is on all fours with the present appeal and by the doctrine of stare decisis is binding on this Court was given per incuriam.
Learned Counsel for the Appellants have contended that a reading of the decision in GOLI V. BELIEF (supra) shows that the Honourable Court of Appeal in arriving at its decision in that case did not consider the following relevant statutory provisions which would have affected the decision of the Court if its attention had been drawn to the provisions, the provisions are:-
a) Order 12 of the Federal High Court (Civil Procedure) Rules, 2000, applicable to election petitions by virtue of paragraph 50 of the Rules of procedure for election petitions, contained in the First Schedule to the Electoral Act, 2006.
b) Paragraph 2(3) of the Rules of procedure for Election petitions, contained in the First Schedule
to the Electoral Act, 2006.
c) Paragraph 3(1) of the Rules of Procedure for Election Petitions, contained in the First Schedule
to the Electoral Act, 2006.
d) Paragraph 45 of the Rules of procedure for Election Petitions, contained in the First Schedule to the Electoral Act, 2006.
The Supreme Court in ELEBANJO V. DAWODU (supra) stated what constitutes per incuriam at page 667 thus:
“As a general rule, the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the Court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found to be demonstrably wrong.”
In the case of GOLI V. BELIEF (supra) what was decided was whether parties and candidates can present a joint petition under the Electoral Act, 2006 and the Court of Appeal held that by virtue of Section 144(1) of the Electoral Act, 2006, an election petition may be presented by one or more of the following persons:
(a) a Candidate in an election;
(b) a Political Party which participated in the election.
Now the Appellants are contending that if the attention of the Court of Appeal has been drawn to the provisions of the earlier mentioned statutory provisions it would have affected the decision of the court. The first provision mentioned by the Appellants is Order 12 of the Federal High Court (Civil Procedure) Rules, 2000 applicable to election petitions by virtue of paragraph 50 of the Rules of procedure for election petitions contained in the First Schedule to the Electoral Act, 2006. Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000 states:-
“All persons may be joined in one action as Plaintiffs in whom any right to relief in respect of or arising out of the same transaction or in a series of transaction is alleged to exist whether, jointly or severally, or the alternative, where if such persons brought separate actions, any common question of law or fact would arise and Judgment may be given for such one or more of the Plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to without any amendment.”
The applicability of the provisions of the Federal High Court Civil Procedure Rules is subject the express provision of the Electoral act, 2006.
Section 50 of the First Schedule to the Electoral Act, 2006 states thus:-
“50 – Subject to the express provisions this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil Jurisdiction, and the civil procedure Rules shall apply with such modifications as may be necessary to render them applicable, having regard to the provisions of this Act, as the petitioner and respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
Order 12 Rule 1(1) of the Federal High court (Civil Procedure) Rules 2000 can only apply to the proceedings in a petition if there is no express provision in the Electoral Act, 2006. It is glaring that the Electoral Act, 2006 clearly provided for a situation as in this case in paragraph 46 of the First Schedule to the Act which provides as follows:
“Where two or more petitions are presented in relation to the same election or return, all the petitions shall be consolidated, considered and be dealt with as one petition unless the Tribunal or Court shall otherwise direct in order to do Justice or an objection in line against one or more of the petitions has been upheld by the Tribunal or Court.”
The above cited provision makes it mandatory for every person who is challenging the outcome of an election to present his election petition either alone or on the platform of the Party he contested the election. Where there are several election petitions in respect of any particular seat, the Tribunal shall consolidate them and hear them as one petition. The power to consolidate is granted to the Tribunal and not the candidates and political parties. What the Appellants as petitioners did in this case was to act extra-Judicially and consolidate the respective petitions which they could have apply for consolidation. That was a clear violation of the express provisions of the Electoral Act, 2006. Where a statute has made a mandatory provision for the procedure to be followed in doing an act that procedure must be followed.
It is clear that the invocation of the provisions of order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules, 2000 in the circumstances of this case does not arise because the Electoral Act, 2006 made adequate provision for the presentation of separate election petitions by different candidates and different political parties in respect of the same seat, therefore even if the provisions of order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules have been drawn to the Court of Appeal in GOLI V. BELIEF, it would be inapplicable in the case.
With regard to paragraphs 2(3) and 3(1) of the Rules of Procedure for Election Petitions contained in the First Schedule to the Electoral Act, 2006. It is also very clear under the Electoral Act, 2006, the two persons who can present a joint election petition are a candidate and his political party in case of Legislative Houses Election. Similarly, a Governorship candidate and his running mate, or a Presidential candidate and his running mate. Each of the Presidential and Governorship candidates can also present a joint election petition under the Electoral Act, 2006.
The situation where three persons can join to present a joint election petition can arise where –
a) A Presidential candidate, his running mate and political party join to present a petition or
b) A Governorship candidate, his running mate and his political party join to present a petition.
Such situation does not arise in legislative houses election in this case where the candidates do not have running mates. Under the Electoral Act, 2006, there is no provision for more than three persons joining to present a joint election petition. It is beyond per adventure that paragraph 2(3) of the First Schedule to the Electoral Act, 2006 which provides for two or three persons is very explicit. There is no provision for “four or more persons” to present a joint petition, the express mention of one thing is the exclusion of others.
Further a Community reading of the provisions of paragraphs 2(3) and 3(1) of the First Schedule to the Electoral Act, 2006 will disclose that while more than one person can present one election petition in respect of the same return, the petitioners cannot be more than three. In this case on appeal the Petitioners are eight which is more than the number provided by the Act. The maximum number of persons that can present a joint legislative House election petition as in this case is two, that is a candidate and his political party that sponsored him, therefore even if the statutory provisions of paragraphs 2(3) and 3(1) of the First Schedule to the Electoral Act are drawn to the attention of the Court of Appeal in the case of GOLI V. BELIEF (supra) the said provisions would be inapplicable and would have not impacted on the said decision in anyway.
With regard to paragraph 45 of the First Schedule to the Electoral Act, 2006 the paragraph deals with an election petition under the act where two or more candidates are made Respondents and not where they are made petitioners, furthermore, paragraph 45 aforesaid does not make provision for who can present an election petition, consequently, even if the attention if the said paragraph 45 was drawn to the attention of the Court of Appeal in GOLI V. BELIEF (supra) it would be inapplicable to the case before it and would have made no difference to the said decision.
Consequently, in view of the foregoing, it is my firm view that the decision of the Court of Appeal in GOLI v. BELIEF (supra) was not given per incuriam as all statutory provisions cited by the Appellants are inapplicable to the case.
Now the position of the law as to who can present a petition under-
Section 144(1) of the Electoral Act, 2006 is stated eloquently in the decision of this court in GOLI v. BELIEF (supra) 585 at 604 – 605 per Galadima JCA (as he then was) as follows:-
“This section to my mind creates two distinct rights that are mutually exclusive. A candidate on its own can present and file an election petition.
Similarly, a Political Party, which sponsored a candidate at an election can also present a petition.
The import of this provision is that the section under reference by its clear and unambiguous wordings never contemplated a joint petition by two separate and distinct persons in respect of an election in a constituency in so far as the separate persons and parties contested the election separately and filed separate Forms with Independent National Electoral Commission (INEC). A person who is aggrieved with the result of an election must seek remedy under the platform on which he contested the election without attempting to illegally form an association of candidates or parties that were defeated. Any attempt to interpret section 144(1) of the Electoral Act, 2006 to admit of Joint Petition by Parties and candidates will lead to an absurd or ridiculous situation where as many as 30 or more political parties that participated or contested the Presidential election will file one single petition with all their candidates. This cannot be the contemplation of the Legislature when the law was being made.”
In the instant appeal there were eight petitioners that presented a joint petition before the Trial Tribunal. The petition challenged the return of the 1st Respondent as the member representing Aboh Mbaise State Constituency in the Imo State House of Assembly. The Joint petition by the eight petitioners is certainly not within the contemplation of the provisions of section 144(1) of the Electoral Act, 2006 and accordingly the sole issue formulated for determination is resolved against the Appellants in favour of the Respondents.
In view of all I have said in this Judgment, this appeal is totally lacking in merit and ought to be dismissed and I accordingly dismiss it. A cost of N30,000.00 is awarded to the 1st Respondent and 3rd to 5th Respondents each.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother, ABUBAKAR JEGA ABDUL-KADIR, JCA. I am incomplete agreement with his reasoning and conclusion that this appeal should be dismissed as wholly unmeritorious. I will add a few words.
At the conclusion of the election into the House of Assembly for the Aboh Mbaise State Constituency, and the declaration of results, the Appellants herein together with the 6th – 11th Respondents being dissatisfied with the election jointly brought this petition before the Election Petition Tribunal.
The Tribunal in its ruling dated 22/7/09 dismissed the petition on the ground that it was jointly presented by all the candidates and their political parties who lost the election of April 14, 2007 into the Aboh Mbaise State Constituency being in breach of S.144 (1) of the 2006 Electoral Act. The sole issue between the parties is whether the Tribunal was right in holding that the petitioners cannot present a joint petition under the Electoral Act, 2006.
In accordance with S.32(1) of the 2006 Electoral Act, various political parties sponsored candidates for the election but the 1st Respondent and his party the 2nd Respondent won the election. The crux of the argument of the learned counsel for the Appellant is that S.144 of the Electoral Act deals with the question of who may present a petition and does not deal with the procedural issue of joinder of parties to a petition. Counsel argued that S.144 only deals with who has the locus standi to present a petition. He cited BUHARI v. YUSUF (2003) 14 NWLR Pt. 841 Pg. 486 at 499; BUHARI v. OBASANJO (2003) 113 LRCN 2472 at 2513. He argued that we cannot read into S.144 of the Electoral Act who it does not contain.
Counsel argued that we are bound by paragraph 50 of the 1st Schedule to the Electoral Act to resort to Order 12 r 1 (1) of the Federal High Court Civil Procedure Rules 2002 which provides as follows:
“All persons may be joined in one action as Plaintiffs in whom any right to relief in respect of or arising out of the same transaction or in a series of transact is alleged to exist whether, jointly or severally, or the alternative, where, if such persons brought separate actions, any common question of law or fact would arise and judgment may be given for such one or more of the Plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.”
He argued that the petitioners are the lower court clearly met the requirements of Order 12 r 1 (1) and each having the locus to present a petition may jointly present same since their cause of action arose out of the same transaction, the question of who won the election is the common and sole issue in controversy and judgment may be given to at least one party.
Learned Appellant’s counsel argued that the combined effects of Paragraphs 2 (3), 3 (1) and 45 of the Rules of Procedure for Election Petition as contained in the 1st Schedule of the Electoral Act is to the effect that a simple petition can be brought by several candidates who participated in the election. Also particularly paragraph 45 shows that two or more candidates can be Respondent to the same petition. He urged the court to declare GOLI v. BELIEF (2007) 4 NWLR Pt.1132 Pg. 585, decided by this court as being decided per incuriam.
I agree with the learned Respondent’s counsel that each of the appellants has a distinct and separate cause of action. In my view, even the provisions for filing any petition clearly makes it mandatory that the petitioner must state the scores of the candidates returned and his own scores at the election.
Section 114 (1) of the Electoral Act provides that a petition can only be presented by one or both of the following:
(a) A candidate at the disputed election and/or
(b)A political party that participated at the election.
I fall back on the Supreme Court interpretation of similar provision in BUHARI v. YUSUF (2003) 14 NWLR Pt.841 Pg.446 at 499, where the court emphasized that only a single candidate and/or his political party can file a single petition.
I agree with the argument of the learned Respondents’ counsel that Appellant reliance on the Federal High Court Civil Procedure Rules in this case is misconceived. This is moreso because the Electoral Act is a special legislation on the procedure to be adopted at election whereas the Federal High Court Rules is a general fall back provision. The Law is clear and the precedents are settled that specific provisions override general provisions.
The specific provision made is paragraph 46 of the 1st Schedule to the Electoral Act, 2006. This provides for the consolidation of actions. Thus, the Act envisaged a situation where more than a candidate or more than one political party would challenge a return. These cases may be consolidated either during trial or on appeal to ensure speedy trial.
I have read the well thought out and undisputed statement of the law enunciated by Galadima JCA. concurring with the lead judgment in GOLI v. BELIEF (2009) 4 NWLR Pt.1132 Pg. 585 at Pg. 604-605. It is set out below:
“This section, to my mind creates two distinct rights that are mutually exclusive. A candidate on its own can present and file an election petition. Similarly, a political party, which sponsored a candidate at an election, can also present a petition. The import of this provision is that the section under reference by, its clear and unambiguous wordings never contemplated a joint petition by two separate and distinct persons in respect of an election in a constituency in so far as the separate persons and parties contested the election separately and filed forms with INEC. A person who is aggrieved with the result of an election must seek remedy under the platform on which he contested the election without attempting to illegally form an association of candidates or parties that were defeated. Any attempts to interpret S.141(1) of the Electoral Act to admit of joint petition by parties and candidates will lead to an absurd or ridiculous situation where as many as 30 or more political parties that participated or contested the presidential election will file one single petition with all their candidates.
This cannot be the contemplation of the legislature when the law was being made. See ALLIANCE FOR DEMOCRACY (AD) V. PETER FAYOSE & ORS. (2001) 8 NWLR Pt. 876 Pg. 639; See EGOLUM V. OBASANJO (1999) 7 NWLR Pt. 611 Pg. 355 at 416 and OJUKWU v. KAINE (1997) 9 NWLR Pt.522 Pg. 613 at 628.
The Appellants’ counsel in my view did not advance legal cogent reasons to convince us to declare that the judgment as having being made per incuriam. Indeed, it is a splendid exposition of the law and the clear intendment of the legislature. Paragraph 2 (3)of the 1st Schedule relied on by the Appellant provides as follows:
“Where 2 or 3 persons join in an election petition, a deposit as may be ordered under sub-paragraph (2) of this paragraph of this schedule shall be sufficient.”
It is clear that the joinder envisaged in the above paragraph for litigants to share costs can only be in respect of persons with the same right of action and common interest i.e. a candidate and his party. Also, where there are more than one person on a ticket as in Gubernatorial or Presidential Elections.
For the above and fuller reasons ably set out in the lead judgment. I dismiss this appeal and abide by the consequential orders.
MOJEED A. OWOADE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, JEGA ABDUL-KADIR, JCA. I agree with the reasoning and conclusion. I also abide by the consequential orders.
The central question in this appeal is whether a joint petition presented by eight petitioners challenging the return of the 1st respondent can be held to be within the contemplation of the provisions of Section 144 (1) of the Electoral Act, 2006.
The simply answer to this question is in the negative. Section 144 (1) of the Electoral Act 2006, provides for locus standi in election petition when it says that an election petition may be presented by one or more of the following persons:
(a) a candidate in an election.
(b) a political party which participated in the election
It is either or both of these candidates, that can validly present an election petition under the Electoral Act 2006. This position, seems radically different from the provisions of Section 33 of decree No. 37 of 1987, which made provision for the presentation of a joint petition.
The argument of the learned counsel for the appellant that the provision of Order 12 of the Federal High Court (Civil Procedure) Rules 2000 applicable to election petitions by virtue of paragraph 50 of the Rules of procedure for election petitions contained in the First Schedule to the Electoral Act 2006 is applicable and enures in favour of the appellant in the instant case is non sequitor or better still hits the law on its head.
As rightly pointed out in the lead judgment, the provision of Order 12 Rule 1 (1) of the Federal High Court (Civil Procedure) Rules 2000 can only apply to a Election Petition in the absence of express provision in the Election Act.
In any event, no recourse can in the circumstances of the case be had to the provision of the Federal High Court Civil Procedure Rules in the light of express provision in Section 144 of the Electoral Act itself governing the presentation of election petitions.
Furthermore, where two or more petitions are properly presented in the con of Section 144 of the Electoral Act, paragraph 46 of the First Schedule to the Act makes provision for consolidation of the petitions in the interest of justice.
However, an election petition must first, properly be filed in accordance with the provision of Section 144 to secure its competence before any application and/or consideration of consolidation of petitions under paragraph 46 of the First Schedule to the Electoral Act 2006. For these and the detailed reasons given in the lead judgment of my learned brother JEGA, JCA. I also dismiss the appeal.
Appearances
MR. N. EPELLE with Mr. E.O. OnyeamaFor Appellant
AND
Mr. E. Nwagwu with Mr. A. I. Nwachukwu for the 1st Respondent
Mrs. B. I. Amadi with Mrs. O. C. Nwugo for the 3rd to 5th RespondentsFor Respondent
