CONGRESS FOR PROGRESSIVE CHANGE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 42 ORS
(2011)LCN/4725(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of July, 2011
CA/A/EPT/PRES/1/2011 (R)
RATIO
JURISDICTION: IMPORTANCE OF THE ISSUE OF JURISDICTION IN ADJUDICATORY PROCESS
Our approach is predicated on the time honoured legal principle that the issue of jurisdiction as raised by the learned Senior Counsel for the respective Respondents is the font et origo, the life blood and threshold of our adjudicatory system. As was ably held per Fabiyi, J.S.C., in the recent case of Shelim & Anor. v. Gobang (2009) All FWLR (Pt.1866) at 1877 paras. A-G:- “It is no longer a moot point that the question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire of any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity.” Mustapha v. Governor of Lagos State (1937) 2 NWLR (Pt. 53) 539; Utih v. Onoyivwe (1991) I NWLR (Pt. 166) 166. Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of proceedings and even on appeal before this Court. State v. Onagoruwa (1992) 2 NWLR (PL 221) 33 at 54; National Bank v. Shoyoye (1997) 5 S.C. 181. PER ISA AYO SALAMI, P.C.A, OFR
JURISDICTION: CIRCUMSTANCE IN WHICH THE COURT WILL BE REGARDED AS COMPETENT
…the court pronounced with force in Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt 4) 557 that is court is only competent when:- (a) it is properly constituted with respect to the number and qualification of its members; (b) the subject matter of the action is within its jurisdiction; (c) the action is initiated by due process of law; and (d) any condition precedent to the exercise of a jurisdiction has been fulfilled.” The above criteria for determining competence of a court have been restated by this Court several times; Skenconsult (Nig.) Ltd. & Anof v. Godwin Ukey (1951) LS.C. 6; Leedo Presidential Motel v. BON Ltd. (1995) 10 NWLR (Pt 570) 353 and also Timitimi v. Amabebe (1953) 14 WACA 374.” PER ISA AYO SALAMI, P.C.A, OFR
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF ORDER 46 RULE 4 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2009 AS IT REGARDS DAYS WITHIN WHICH SITTINGS OF THE COURT FOR THE DISPATCH OF CIVIL MATTERS WILL NOT BE HELD
Beginning with Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 which is the fulcrum of the Respondents’ case, it provides thus:- “Subject to the directions of the Chief Judge, sittings of the court for the dispatch of civil matters will be held on every week days except: (a) on a public holiday; (b) during the week beginning with Easter Monday; (c) during the period beginning on 23rd December and ending on the 5th January next following; (d) during the long vacation, i.e. the period beginning in any day in August and ending on a date not less than six weeks later ending on a Friday as the Chief Judge may by notification in the Gazette appoint” PER ISA AYO SALAMI, P.C.A, OFR
INTERPRETATION OF STATUTE: PROVISION OF THE ELECTORAL ACT 2010 (AS AMENDED) ON THE PERSONS ENTITLED TO PRESENT ELECTION PETITIONS
Section 137(1) of the Electoral Act 2010 (As Amended) which by its marginal note deals with “Persons Entitled to Present Election Petitions”, provides thus:- “737.-(1) 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.” PER ISA AYO SALAMI, P.C.A, OFR
JUSTICES:
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria
M.A. OWOADE Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
OBENDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
CONGRESS FOR PROGRESSIVE CHANGE – Appellant(s)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 42 ORS – Respondent(s)
ISA AYO SALAMI, P.C.A, OFR (Delivering the Lead Ruling): Following the conduct of the Election into the office of the President of the Federal Republic of Nigeria by the 1st and 2nd Respondents on the 16th day of April, 2011, and the subsequent return and declaration of the 3rd and 4th Respondents (candidates of the 5th Respondent), as winners of that Election on the 18th April, 2011, the Petitioner (one of the political parties that participated in the election and sponsored candidates at that election); was aggrieved by the outcome of the exercise, and accordingly filed a petition in this Honourable court on the 8th day of May, 2011.
Sequel to the service of copies of the Petition on the Respondents, the 3rd and 4th and 5th sets of Respondents in their respective Replies gave Notices of Preliminary Objections to the Petition on Grounds of incompetence which Notices and Grounds of Objections are as contained in pages 2 – 3 of the 3rd and 4th Respondents’ and pages 3 – 5 of the 5th Respondent’s Replies, respectively.
Pursuant to Section 136 (1) of the Electoral Act, 2010 (As Amended), Paragraphs 4(3) (B) and 47 of the 1st Schedule to the Electoral Act, 2010 (As Amended), and the inherent jurisdiction of this Honourable Court; the 3rd and 4th Respondents through their team of lawyers led by Chief Wole Olanipekun, SAN, by a Motion on Notice, dated and filed on the 23rd day of June, 2011, sought for the following Orders:-
“1. An Order striking out dismissing this Petition for being incompetent, incurably defective and vesting no jurisdiction on the Honourable Court to adjudicate on it.
2. And for such further or other orders as the court may deem fit to make in the circumstances.”
The Grounds upon which the application is predicated are hereunder reproduced thus:-
“A (i). The Petition is founded on a nullity having been filed on Sunday the 8th day of May, 2011.
(ii). Sunday is a non-working day, otherwise described dies non juridicus and also a public holiday.
(iii). The Registry of the court, under the applicable Rules, does not open on a Sunday for the transaction of any business.
B (i). The petition is not properly constituted.
(ii). General Muhammadu Buhari and Pastor Tunde Bakare for whose benefit the Petition has been presented are not made parties to the petition.
(iii). The prayers and/or reliefs of the Petitioner cannot be countenanced and/or granted in the absence of the said General Muhammadu Buhari and Pastor Tunde Bakare.
(iv). The court cannot make any order against the Respondents who were the Presidential and vice Presidential candidates of the 5th Respondent (PDP) in favour of the Petitioner in the absence of the Petitioner’s own Presidential and Vice Presidential candidates as parties to the Petition.
C. The Petition constitutes a gross abuse of the processes of this Honourable Court.
D. The Petition deals with hypothetical, academic, and moot issues.
E. The Court is without the vires to adjudicate on and grant the reliefs/prayers sought for in the petition.
F. The entire paragraph 14 of the Petition is incompetent and/or argumentative, particularly paragraph 14(a), (c), (d),(d)(i), (d)(ii), (d)(iv), (d)(vi), (d)(ix), (d)(xii), (h), (i), (j), (k),(m), (n), (o), and (p). Respondents will urge the court to strike same out; a fortiori, to strike out the entire petition, particularly Ground 1, thereof.
G. Ebun O, Sofunde, SAN, Awa Kalu, SAN, James Ocholi, SAN, Abubakar Malami, Sladipo Olapeseyi, SAN, Ahmed B. Mahmud, Esq., Ismaila Alasa, Esq., Aliyu Musa, Esq., Ugbede Idachabo Esq., Chief Okoi Ofem Obono-Obla Esq., Mary Ekpere, Esq., and Daisy Anagende who presented the Petition are not within those specifically mentioned as entitled to present on Election Petition under the provisions of the Electoral Act, 2010 (As Amended), and the court cannot take cognizance of and/or adjudicate on the said Election petition so presented by them”
H. When considered together with the facts supporting it, the 1st Ground under which the petition is based is a pre-election matter over which this Honourable Court does not have jurisdiction”.
In support of the Application, the Applicant/objector through Gbenga Adeyemi, Esq., a Legal practitioner of No. 94, Norman Williams Steet, South West Ikoyi, Lagos, deposed to an eleven paragraph affidavit to which is annexed a Written Address.
By a Notice of Preliminary objection brought pursuant to paragraphs 4(D) and 47(1) of the 1st Schedule to the Electoral Act, 2010 (As Amended), Order 3 Rule 9 of the court of Appeal Rules, 2011, section 137 (3) of the Electoral Act , 2010 (As Amended) order 46 Rule 4 of the Federal High court (civil procedure) Rules, 2009 and under the inherent powers of this Honourable court dated and filed on the 15th day of June,2011, the 5th Respondent through chief J.K Gadzama, SAN, and his team of learned senior Advocates and other counsel notified the Petitioner that the 5th Respondent shall before or during the trial of this Petition raise and rely on the Preliminary Objection and urge this Honourable Court to:
“1. Dismiss and/or strike out the entire petition in limine.”
GROUNDS OF OBJECTION
a. The petition was filed on Sunday, May 08, 2011 which is a public holiday and therefore a dies non juridicus.
b. The Registry of the Tribunal ought not to have accepted the Petition (originating Process) for filing on a Sunday.
OR IN THE ALTERNATIVE:
c. Strike out paragraphs 14(d) (iv) and 38 of the Petition which contain complaints against the Nigerian police Force, Civil Security, and the Nigerian Army who are not parties to the Petition.”
GROUND OF OBJECTION
The 2nd, 6th – 42nd Respondents are not necessary parties to the Petition in view of Section 137 (3) of the Electoral Act, 2010 (As Amended), which provides as follows-
“(3) If the Petitioner complains of the conduct of an Electoral officer, a Presiding officer, or Returning officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the commission shall, in this instance be:
a. made a Respondent; and
b. deemed to be defending the petition for itself and on behalf of its officers or such other persons.
2. such Further order(s) as this Honourable court may deem fit to make in the circumstance”.
The 5th respondent has also filed a Written Address in support of the Notice of Preliminary Objection.
In reaction to the Notices and Written Addresses of the 3rd and 4th and 5th Respondents and upon being served with same by the respective Respondents/Objectors, the Petitioner filed her Response to the 5th Respondent on the 21st day of June, 2011 while that to the 3rd and 4th Respondents was filed on the 29th day of June, 2011 respectively.
Upon receipt of the Responses by the 3rd and 4th and 5th Respondents, their respective learned senior counsel further filed Replies on points on law of the 2nd and 6th days of July, 2011 respectively. In respect of the Written Address of the 3rd and 4th Respondents/Objectors, the six issues distilled for determination are as reproduced hereunder as follows:-
“i. Whether or not the Petition is not founded on & nullity.
ii. Is the petition not improperly constituted?
iii. Whether or not the petition is not abusive of Court process and/or moot issue?
iv. Does the Court possess the necessary vires or jurisdiction to grant the reliefs sought?
v. whether or not Ground 1 of the Petition is not founded on pre-election matters, over which the Honourable Court cannot adjudicate?
vi. Whether the averments in paragraph 14(a) are not liable to be struck out in limine?,,
The Petitioner on the other hand it would appear has adopted the six issues formulated by the 3rd and 4th Respondents except that they are slightly differently worded.
As for 5th Respondent, the three issues formulated are couched in the following terms:-
“1. Can a petition be filed on a Sunday being a public Holiday/dies non juridicus?
2. Is the non- joinder of the police, the Army and the civil security proper in law, given the spurious allegations leveled against them?
3. Is the joinder of the 2nd, 6th -42nd Respondents proper and sustainable in law, having regard to the provisions of Section 137 (3) of the Electoral Act 2010 (As Amended)?”
The Petitioner on its part formulated the following issues in respect of the 5th Respondent’s Objection:-
“7. Whether the circumstances of the filing of the Petition on a Sunday render it liable to the struck out for being a nullity?
2. Whether the Petitioner was obliged to have joined the Nigeria Police Force, Civil Security and the Nigerian Army as parties and its failure to do so renders paragraphs of the petition where allegations were made against them liable to be struck out? And
3. Whether the 2nd and 6th to 42nd Respondents were wrongly joined as parties as a result of which they ought to be struck out?”
In the resolution of the issues formulated by the learned Senior Advocates on behalf of the parties, we have taken the considered view that it would serve the interest of justice and considerable convenience if Issues (1) of the 3rd and 4th and 5th Respondents and that of the Petitioner are considered together because of their similarities and the threshold question of jurisdiction they have thrown up.
ISSUE NUMBER 1
In both the Written Address and oral submissions proffered in adumbration thereof, Chief Olanipekun, SAN, for the 3rd and 4th Respondents/Objectors noted that the Petition on the face of it was filed on Sunday the 8th day of May, 2011 and that by paragraph 54 of the First Schedule to the Electoral Act, 2010 (As Amended) this Honourable Court is enjoined to apply the Federal High Court (Civil Procedure) Rules with such modifications as may be necessary to render them applicable having regard to the provisions of the Act.
References were therefore made to Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009, Order 56 Rule 7 thereof, Section 15 (4) and (5) of the Interpretation Act and Section 4 of the Public Holidays Act which provisions totally exempt Sunday from all days that official transactions, particularly in this case the filing of a petition, could take place or be done. According to the learned Senior Advocate, the Rules say that the Registry shall not open while the Statutes command that no transaction shall take place on those days.
For this submission he cited the case of Anie v. Uzorka (1993) 3 NWLR (pt. 309) S.C. where the Supreme Court drew a distinction between a Public Holiday and work free day when the issue of whether a Judge could without the leave of the Chief Judge, sit on Saturday, cropped up for determination. Kaguwa v. INEC (1993) 3 NWLR (pt. 284) 681 C.A per Achike, J.C.A (as he then was), Ikpala Estate Hotels Ltd. v. NEPA (2004) 11 NWLR (pt. 554) 249 at 262 per Rowland, J.C.A; Military Administrator, Delta State v. Olu of Warri (1997) 7 NWLR (pt. 513) 430 at 449 per Akintan, J.C.A (as he then was) and Ikhariahle v. Okoh (2009) 12 NWLR (pt. 1154) 1 at 45 per Ogunwumiju, J.C.A; were all cited to draw our attention to the fact that the results of the election was declared on 18th day of April, 2011 and Sunday 8th day of May, 2011 was not the last day opened to the Petitioner to file her petition in which case the filing of the petition on Sunday was not out of compelling exigency but was merely done with impunity to test the waters or legal consequence.
The learned senior Counsel pointed to the provisions of paragraphs 25 (1) and 26 (1) and (2) of the First Schedule to the Electoral Act, 2010, which specifically exclude Sunday from the days a petition can be heard, arguing that those provisions of the Schedule are general provisions of the Rules of Court which cannot overrule the specific provisions of the Interpretation Act and the Public Holidays Act.
He drew our attention to the maxim “generelia specialibus non derogant” and the cases of Kraus Thompson Org. v. N.I.P.S.S. (2004) 17 NWLR (pt. 901) 44 at 64 and 65, Inakoju v. Adeleke (2004) 4 NWLR (pt.1025) 123 at 629 and Schroader & Co. v. Major & Co. Ltd. (1939) 2 NWLR (pt. 101) 1 at 6.
Premised on the foregoing submissions, he contended that the Petition was not initiated according to law and accordingly this Honourable Court on the authority of Madukolu v. Nkemdilim (1962) 2 SCNJ 341; is incompetent to countenance it. Stretching the submission further, the learned Senior Advocate took umbrage in the case of Skenconsult (Nig.) Ltd. v. Ukey (1931) 1 S.C. to contend that the petition was/is founded on a nullity and nothing credible and accordingly this Honourable Court has no discretion on it and should resolve the issue in favour of the 3rd and 4th Respondents/Objectors and strike out the petition.
It would be recalled that in his oral submission in court on the 6th day of July, 2011, the learned Senior Counsel insisted that the only defence open to the Petitioner in so filing the petition on a Sunday is Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules, which empowers the court to direct the Registry to open on Sunday but that there is no affidavit from the Petitioner that the President of this Honourable Court so directed.
Arguing ISSUE NUMBER 1 (ONE) of the 5th Respondent, Chief J.K. Gadzama SAN, noted that it is not in dispute that the Petitioners filed their petition on May 8, 2011 a Sunday and that the position of the law on public holidays cannot be overemphasized. He, like the learned senior counsel for the 3rd and 4th Respondents relied on Section 15 (5) of the Interpretation Act, CAP. L23, LFN on the definition of Public Holiday; Section 4 of the Public Holidays Act; CAP. P40 LFN, 2A04; Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009; Patrick Ikhariahle v. Okoh (2003) 2 LRECN 47 at 55 – 56 Rationes 9 & 10; and Order 3 Rule 9 of the Court of Appeal Rules, 2011; to contend that Saturdays and Sundays and Public Holidays are not within the contemplation of the provisions of the Rules as the days the Court of Appeal shall be open to the public.
As an alternative submission and without conceding that a directive could be given, enabling the Registries to open on a prohibited date, namely Sunday, May 08, 2011, there is no evidence of such and the Respondent takes it that the directive was not sought and obtained by the Registry before the said Petition was filed on Sunday, since according to learned Counsel to the Respondent, the approval was not in writing.
Turning to the holding of this Court in Olaiya Kupolati & Anor. v. Olusola Oke & Ors Appeal No. CA/IL/EP/HA/12/2008 a decision of the Ilorin Division delivered on the 8th day of April, 2009 now reported in (2009) ALL FWLR (pt. 436) 1858 at pages 1916 paras. E -H and 1917 paras. A-F; per Agube J.C.A, whom he quoted in extenso, it was submitted that although that decision held that proceedings could still take place on public holidays on exceptional circumstances, the decision never pointedly held that an originating process could be filed on a Public Holiday.
On the admonition by the decision on Counsel to file Election Petitions timeously, he asserted that learned Counsel to the Petitioner would have been diligent enough to have filed the case latest Friday the 6th of May, 2011 as equity aids the vigilant and not the indolent since delay defeats equity. He then urged us to strike out the entire Petition as same was filed on a Public Holiday contrary to the Statutes and Rules of Court earlier cited and on a plethora of decided cases.
The learned SAN it would be recalled, at the hearing of the Preliminary Objection in Court on the 6th of July, 2011, by his oral submissions supported the views expressed by Chief Olanipekun, SAN, that there was no compelling exigency to warrant the filing of the petition on a Sunday and that there was no affidavit in support of the directive given to the petitioner to permit the filing of the petition on Sunday. He went a step further while relying on English cases like Baker v. Hambleton DC (2011) WL 2582620 at page 6; Mucceli v. Government of Albania (2009) I WLR 276; St. Helens Metropolitan Borough Council v. Barnes (20060 CIV 1372 and Van Aken v. Camden London (2003) 1 WLR p. 684; to contend that the law does not permit the President to allow the Petitioner to file a petition on Sunday and that they have been able to dichotomize sitting and filing.
The learned Senior Counsel further argued that notwithstanding the provision of Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules, 2009, there is no where within Nigeria or outside where processes have been filed on Sunday and this Court being a Court of law and procedure, the issue of substantial justice does not apply to Statutory non-compliance. Accordingly, he maintained that the Petition is void and a nullity for non-compliance with the provisions of the law and same ought to be dismissed in limine.
DR. Onyechi Ikpeazu, SAN, the learned Counsel for the 1st, 2nd and 6th-42nd Respondents in his brief contribution intimated the Court that they did not file any process in respect of the Preliminary Objections. He however sought leave to comment on the provisions of Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules and supported the views expressed by the learned Chief J.K. Gadzama, SAN, when he argued that a contrary interpretation of the position taken by the learned Chief would create a most awkward situation whereby a declaration of Holiday by the President of the Federal Republic of Nigeria, shall be countered by an Order of a Chief Judge or the President of the Court of Appeal.
In both the Written Address and oral submissions of Mr. Ebun Sofunde, SAN and his team of learned Counsel for the Petitioner, in respect of Issue Number 1 (One), the learned Senior Counsel disagreed with the contention of the Respondents that the filing of the petition on a Sunday robs the petition of validity on the grounds that:-
1. Order 46 rules 4 which the Respondents relied on to contend that the Registry cannot open on Sunday, is subject to the Electoral Act, 2010 (As Amended).
2. Paragraph 54 of the 1st Schedule to the Electoral Act by which the Rules of the Federal High Court derive their applicability opens with the expression “subject to the express provisions of this Act. …”
3. Paragraph 26(2) of the 1st Schedule to the Electoral Act which provision was reproduced envisages the opening of the Registry to do business on Saturdays and Public Holidays if circumstances dictate as the Tribunal is not expected to sit on Saturday or Public Holiday if the Registry is not open.
Placing reliance on Section 10(2) of the Interpretation Act, Cap. 123 Laws of the Federation of Nigeria, 2004, it was submitted that the opening of the Registry is incidental to the Court sitting and therefore even the Electoral Act permits the opening of the Registry on Saturday or Public Holiday and as such Order 46 Rule 4 of the Federal High Court Rules, does not apply. The foregoing apart, the learned Senior Advocate alluded to Order 56 Rule 7 of the High Court (Civil Procedure) Rules, which by the phrase “subject to the directives of the Chief Judge” in this case the President of the Court of Appeal, the provision in the Rule is subject to the directives of the President and so far as the Registry opened on a Sunday it must be presumed under Section 150 of the Evidence Act, that the President directed or gave the necessary directives.
Given the above submissions, the learned Senior Counsel for the Petitioner therefore submitted that the submissions of the learned Senior Counsel on behalf of the Respondents and the authorities cited by them are inapplicable as to whether the Registry of the Court may open on Sundays which is a Public Holiday.
Concluding his response on this arm of the Objections of the Respondents, the learned SAN referred us to the provisions of Section 6(1) of the Public Holidays Act, Cap 40, Laws of the Federation of Nigeria 2004, Section 6(3) thereof and the case of Anie v. Uzarka & Ors. (1993) 8 NWLR (Pt. 309) 1, per Onu, JSC at pages 19 to 20, in submitting that given the decision in the above case, it was permissible for the Registry to open and receive the processes on Sunday and it must be presumed that the Honourable, the President of the Court of Appeal had given the directive under Section 6(1) of the Public Holiday Act.
Replying on points of Law, Chief Olanipekun, SAN on the reaction of the learned Senior Counsel for the Petitioner to 3rd and 4th Respondents’ reliance on Order 46 Rule 4 of the Federal High Court Rules, 2009, noted that paragraph 26(2) of the 1st Schedule to the Electoral Act, 2010 (As Amended) envisages ‘hearing’ which is a function of the Court and therefore relates to sitting rather than filing of process which is expressly excluded by the maxim “expression unius est exclusio alterius ” and according to him, the only enactment that deals with the business of the Registry is the Federal High Court (Civil Procedure) Rules, 2009.
On the interpretation given by Mr. Sofunde, SAN, to Order 56 Rule 7 of the Rules it was submitted that Section 150 of the Evidence Act does not apply as such directive, according to learned Senior Counsel for the 3rd and 4th Respondents, must be published in the Registry for litigants or Counsel to see and as such it cannot be presumed as in this case where none has been produced by the Petitioners and Petitioners did not file a Counter-affidavit to the effect that the President gave them permission to file on Sunday. To that extent, he reiterated, Section 6(1) of the Public Holidays Act and Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules, 2009; paragraphs 26(2) of the 1st Schedule to the Electoral Act, 2010 and Section 10(2) of the Interpretation Act are not apt. The presumption, he further maintained is based on the assumption of Counsel in his address and not on fact or evidential substratum and is therefore rebuttable since opinion of Counsel cannot replace the cold facts. NIDB v. Fembo (1997) 2 NWLR (Pt. 489) 543 and Nkeiruka v. Joseph (2008) 3 LRECN 317 at 334 paras. A-D; and the definition of the word ‘directive’ by the New International Webster’s Comprehensive Dictionary of English Language (2010 Edition) at page 362, were all cited to insist that the President of the Court of Appeal did not give any order or instruction for the petition to be filed on Sunday.
On the Petitioner’s further reliance on Section 6(1) and (3) of the Public Holidays Act, and the case of Anie & Ors. v. Uzorka & Ors (1993) 8 NWLR (Pt. 309) 1; it was contended and reiterated by the learned SAN, that they are inapplicable and further that it is unlawful for the President to give such directive which cannot even if given, be presumed but must be requested, approved and communicated to members of the public. From the foregoing, the learned Senior Counsel for the 3rd and 4th Respondents concluded that the filing of the Petition on Sunday was a classical nullity as the directive has not been produced and none exists.
The learned Chief Gadzama, SAN, as had been noted earlier was in full support of the position taken by Chief Olanipekun on the Response by the Petitioner and we had also reflected on the English cases he cited to buttress his position in the course of oral adumbration. Suffice it to say that what is left to be added was the view that paragraphs 26(2) and 54 of the 1st Schedule to the Electoral Act, 2010 (As Amended) do not apply but that a careful perusal of the provisions of the Schedule and Order 46 Rule 4 of the Federal High Court Rules, 2009, show that they have no negative effect on the objection as they relate to ‘hearing’ or ‘sitting’ as no provision anywhere in our laws allows the filing of processes on Sundays or a Public Holiday.
According to him, the filing of the Petition on a Sunday robs the Court of jurisdiction. For this submission, he cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341-355 at 34; per Bairamian, F.J. to contend once more that the Petition falls short of the 3rd requirement which is fundamental of the cumulative criteria for the vesting of jurisdiction. On the dichotomy between sitting as well as hearing which are what the provisions of paragraphs 26(2) and 54 of the 1st Schedule talk about as against ‘Filing’ he referred us to Black’s Law Dictionary (6th Edition) at pages 628,721 and 1387; to submit that the concept of filing is not the same as sitting and/or hearing.
On the reliance placed by the Petitioner on the case of Anie & Ors. v. Uzorka & Ors (1993) I NWLR (Pt. 309) 1; to support the filing of the Petition on Sunday, it was the contention of the learned Senior Counsel to the 5th Respondent that the Petitioner only cited the portion of the judgment that tended to favour him. He proceeded to quote the relevant portions of the judgment and submitted that the case relates to the Court’s power to sit or conduct hearing even on a Public Holiday if, circumstances demand but has nothing to do with filing of petition. According to him, it is only after the initiating Processes have been filed that the issue of “Special circumstances” permitting the Court to sit on Public Holiday may arise. He finally submitted that the Petitioner’s Response in this context is grossly misplaced in law and urged us to resolve the issue in favour of the Respondent.
ISSUE NO.2 OF THE 3RD & 4TH RESPONDENTS
On this is issue which is whether the Petition is well constituted, Chief Olanipekun SAN referred us to paragraphs 1 and 2 of the Petition where the Petitioner claims to have sponsored General Mohammadu Buhari and Pastor Tunde Bakare as Presidential and Vice Presidential candidates at the Presidential Election. Paragraphs 8, 10, prayers 1, 3, 4 which show that the Petitioner appreciates the relevance and importance of contesting as candidates, more so when the Petitioner is praying under relief 6, for fresh election between her and the 3rd Respondent were also highlighted.
Relying on Edokpolor & Co. Ltd. v. Sem Edo Wires Industries Ltd. (201) FWLR (Pt. 74) 399 at 424 paragraph A, (S.C.); Registered Trustees of M.W.H.U.N. v. Registered Trustees of Community Health Practitioners of Nigeria & Ors. (2008) All FWLR (Pt. 412) 1013 at 1074 paragraphs. A-B and Green v. Green (1987) 2 N.S.C.C. 1115 at 1125; he submitted that a court cannot make an order in vain and the necessary parties to a proceeding are the ones to be affected one way or the other by the order or decision of the court.
He also argued that in election petitions/matters necessary parties have to be joined and parties have been defined in Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at pages 313-314 and Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 423 and Section 137(1)(a)-(b) -(2) and non-joinder of petitioner’s candidate Major General Muhammadu Buhari is fatal to its entire case. Tafida v. Bafarawa (1993) 3 NWLR (pt. 596) 70 at 83 paragraphs. E-H and C-E; Ubom v. Araka (1999) 6 NWLR (pt. 605) 99 at 112 paragraphs G-H were all cited to submit that the petition is incompetent as it is not properly constituted for non-joinder of the Presidential candidates. Accordingly, on the authorities of Bambe v. Adetunji (1997) 1 S.C. 1 at 8; Otawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) 746 at 785; it was submitted that the court is divested of the jurisdiction to look into the petition. He urged us to resolve the issue in favour of the 3rd and 4th Respondents.
ISSUE NUMBER 3 OF THE 3RD AND 4TH RESPONDENTS: questions whether the petition is not abusive of court process and/or raised hypothetical, academic and moot issue, and in this respect, the learned Senior Counsel referred us to Section 137(1) which gives more prominence to the candidate in an election for the presentation of a petition rather than a political party as in this case to single handedly and solely file a petition and ask for a major relief in the nature of a re-run between it and the candidate of another political party.
Accordingly, it was asserted that from the foregoing, the petition is not brought bonafides and on the authorities of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188; Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142 and Owonikoko v. Arowosaye (1997) 10 NWLR (Pt. 523) 6l at 76, the petition raised hypothetical, academic and moot question.
On what constitutes an academic issue he referred us to the cases of Plateau State v. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346 at 419 and also Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) at 180 paragraphs A-B.
It was submitted finally on this issue placing reliance on Adewumi & Anor. v. Attorney General Ekiti State (2002) 2 NWLR (Pt. 751) 454 at 525; Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) at 344; Kosile v. Folarin (1989) 3 NWLR (Pat. 107) 8; that in a plethora of cases it has been variously held that courts do not deal with hypothetical, academic and moot issues and that because the petition is bereft of live issues and all principles of election petition, it ought to be dismissed. We were again urged to dismiss the petition and resolve the issue in favour of the 3rd and 4th Respondents.
ISSUE NO.4 OF THE 3RD & 4TH RESPONDENTS; questions whether the Honourable Court possesses the necessary vires or jurisdiction to grant the reliefs sought? Here the learned Senior Counsel referred to the reliefs sought (particularly reliefs 1, 2, 4, 5, and 6), submitting that the petitioner is not claiming that he ought to have been declared winner but is contending that the election did not produce a winner in which case he admits that he was a failure and therefore lacked the locus standi to contest the results.
In particular he highlighted relief number 6 wherein the Petitioner claims that the 1st and 2nd Respondents should arrange for another election between the Petitioner and 3rd Respondent in conformity with Section 132 of the Electoral Act or other relevant provisions of the Constitution.
Reflecting on the sui generis nature of election petitions and the fact that paragraph 4(1),(3)(a) specifies the reliefs which a petitioner can seek, it was submitted that Section 133(1) of the Electoral Act, only vests a petitioner with a right to challenge an election or return since the jurisdiction of an Election Court is special. Orubu v. INEC (1988) 5 NWLR (Pt. 94) 323 at 347 and Kalmu v. Gumi (2003) 16 NWLR (Pt. 847) 493 at 519; Ajadi y. Ajibota (supra) at 174; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 498-499 on the consequences of defect in complying with procedural step in an election were all referred to.
It was argued further that since the validation of the results of the units mentioned under prayer 5 is the basis of prayers 4, 5 and 6, the said prayers are without proper foundation and cannot be countenanced.
As regards relief 6, our attention was drawn to Section 221 of the 1999 Constitution and Amaechi v. INEC (2003) 1 SC (Pt. 1) 36 at 110, to contend that paragraphs 4 and 5 of petition admit that the 3rd Respondent contested election under the PDP (the 5th Respondent) but that the Petitioner in prayer 6 prays for a relief which is unconstitutional to make. Adeogun v. Fashogbon (2005) 17 NWLR (pt.1115) 149 at 193; P.R.P. v. INEC (2004) 9 NWLR (pt. 977) 24 and Paragraph 4(3)(a) of the First Schedule on the nature of reliefs to be claimed in an election petition which are suis generis and should be within the Constitution or Act and a host of other cases on jurisdiction were relied upon to contend that the Court lacks jurisdiction to entertain the reliefs. The issue he further urged should be resolved in favour of the Respondents.
ISSUES NUMBERS 5 AND 6 OF THE 3RD & 4TH RESPONDENTS which were argued together question whether Ground 1 of the Petition is not founded on pre-election matters, over which this court has no jurisdiction and whether the averments in paragraph 14(a) are not liable to be struck out in limine?
The learned Senior Counsel on these issues argued and answered the question posed in the affirmative that paragraphs 14A,B,C,D etc. of the petition all deal with pre-election matters which this Court has no jurisdiction to hear because they complain of wrongful and unlawful postponement of an election. He referred to Section 138(1)(a)-(d) of the Electoral Act which encapsulates the grounds upon which an election can be challenged submitting that it would be overstretching the frontiers of subsection (b) of Section 138 if unlawful postponement of election is subsumed within that subsection.
Furthermore the learned Senior Counsel alluded to Section 26(5) of the Electoral Act as to which Court is vested with the jurisdiction to hear matters pertaining to postponement of election or where the 1st and 2nd Respondent have acted within their powers in Section 28(4) of the Electoral Act to make a return in spite of the non-commencement of voting on the substituted postponed dates in the polling units. In his view the power to challenge a postponement of election in some polling units is limited to Sections 26(3) and 26(4) of the Electoral Act.
To illustrate the submission above he relied on Odedo v. INEC (2003) 17 NWLR (Pt. 117) 199; Zaranda v. Tilde (2003) 10 NWLR (Pt. 1094) 184 at 212.
For other issues constituting pre-election matters, the learned Senior Counsel referred to the issue of double registration and the affirmation or swearing to an oath by the electoral officers under Section 28 of the Electoral Act, as pleaded in the petition (paragraph 14(a) thereof) in support of the submission that the paragraph contains pre-election matters which the court does not have the jurisdiction to entertain. He placed reliance on Odedo v. INEC & 2 Ors. (supra) at 59-60 lines 35-10; Orji v. Ugochukwu (2009) 12 KLR (Pt. 273) 2493 at 2559; Ojo v. INEC (2003) 13 NWLR (pt.1105) CA 577 at 628; Amaechi v. INEC (2008) 1, MJSC 1 at 63;Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436 at 460 and Doukpolagha v. George (1992) 4 NWLR (Pt. zs6) 444 at 456.
On the submission that the entire paragraph 14 of the Petition particularly 14(a),(c),(d), (d)(i), (d)(ii), (d)(iv), (d)(ix), (d)(xii), (h), (i), (i), (k), (l), (m), (n), (o) and (p) are all argumentative and incompetent he urged us to strike same off or in the alternative strike out the entire petition on the authorities of Okudo v. Inspector General of Police (1968) 1 NWLR (Pt. 533) 3550 and Andomy v. Ayi (2004) All FWLR (Pt. 227) 464 at 471-472 per Thomas J.C.A. and finally Ojukwu v. Yar’Adua (2008) 4 NWLR (Pt. 1078) 435 at 462 which ratio was quoted in extenso as well as Uzodinma v. udenwa (2004) 1 NWLR (Pt. 854) at 303 and W.A.P.C. v. Adeyemi (2003) 12 NWLR (Pt. 835) 517.
It was contended that paragraph 14(b) is equally vague in that it is not supported by material facts in the petition, the petitioner having failed to specify the particular States in the South-South or South-East where the failure to collate and paste results of the collation centres were replete and that the depositions of the witnesses are mere hearsay more so, where the polling Agents who testified on pages 159-183 of the petition are limited to only Imo State and some units in Anambra State.
Accordingly and relying on the cases of INEC v. Anthony (2011) 7 NWLR (Pt. 1245) 1 and Buhari v. INEC (2008) 4 NWLR (Pt. 1078) 547 at 629; Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334 at 351 and ANPP v. Usman (2008) 12 NWLR (Pt. 1100) 1 at 55, learned Senior Counsel reiterated that there are no material facts to support the allegation in the paragraphs and subparagraphs enumerated above apart from the allegations being vague, pre-election related and accordingly this Honourable Court has no business countenancing them. We were then urged to resolve the issue in favour of the Respondents/Objectors and strike out the petition for lacking in merit.
PETITIONER’S RESPONSE
In Response to the 2nd issue which complains of non-joinder of General Muhammadu Buhari and Pastor Tunde Bakare, thus rendering the petition incompetent, the learned Senior Counsel for the Petitioner argued that of all the cases cited by the 3rd and 4th Respondents, only Green v. Green (1987) 3 NWLR (Pt. 61) 480 is relevant to the determination of the issue. In this wise, he then referred us to Section 137(1) of the Electoral Act which specifically creates Statutory Petitioners to the extent that any one, not necessarily everyone of that class may sue. Egolum v. Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 397 which though dealt with who were proper Respondents, as stipulated in Section 50(2) of Decree No. 6 of 1999 on who were statutory defendants; Buhari & Anor v. Yusuf & Anor (2003) 14 NWLR (Pt. 841) 446 at 493 as to who were necessary parties in election petition, per Uwaifo, J.S.C. at 497 to 498 and 536; on the interpretation of Section 133(2) of the Electoral Act, 2002; and finally Balonwu & Ors. v. Ikpeilzu (2005) 13 NWLR (Pt.942) 479 at 516 to 517; were all cited to submit that from the theme running through all the cases, it has been laid down that in the determination of election petitions, the court bases same on statutory provisions and not common law provisions as to who necessary parties are.
On the cases of Buhari & Anor. v. Obasanjo & Ors. (supra) and Egolum v. Obasanjo (supra) cited in paragraph 5.3 of page 21 of, the 3rd and 4th Respondents Address, Mr. Sofunde SAN, pointed out that they rather support the case of the petitioners.
Turning to the principle enunciated in Green v. Green (supra) which was decided on common law principles at page 499 of the Report, the learned Senior Counsel submitted that it is almost on all fours with the petition herein as both General Muhammadu Buhari and Pastor Bakare can be equated with Solomon Green who had interest in Jeky House Chieftaincy but was not joined and in spite of the non-joinder the action was not defeated, the court having pronounced that he was a desirable party.
He concluded therefore, that based on the provision of Section 137(1) of the Electoral Act as well as the cases relied upon, the petition cannot be defeated for non-joinder of General Muhammadu Buhari and Pastor Tunde Bakare.
On ISSUE NUMBER 3, whether the Petition constitutes abuse of court process by raising hypothetical, academic or moot questions, the learned Senior Counsel to the petitioner drew our attention to a passage in Saraki & Anor v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 189 paragraphs B-F; and the recent case of Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (Pt. 724) 369 SC, and relying on the pronouncements in the above cases he asserted that once it is shown that the petitioner was exercising her legitimate right to petition, the question of the petition being an abuse of process, academic, hypothetical or moot questions should not arise from the issues raised.
ON ISSUE NUMBER 4, which is whether the Court possesses the necessary vires or jurisdiction to grant the reliefs sought, Mr. Sofunde, SAN, contended per contra that throughout the arguments of the learned Senior Counsel for the 3rd and 4th Respondents/Objectors, nothing was said about the incompetence of relief Number 1 (One) of the petition which relief is in terms of Section 140(1) of the Electoral Act.
Given this position, he maintained, it cannot be correct, even if other Reliefs are incompetent, for the Court to be divested of jurisdiction.
As regards relief Number 4, which was criticized, it was conceded that it does not come within the ambit of the Electoral Act, same being superfluous. On the contention by the Respondents that the Petitioner is without locus standi to seek for Relief Number 5, the learned Senior Advocate dismissed same as without foundation. With regard to relief 6, it was posited that it is in conformity with Section 140(2) of the Electoral Act which provides for the ordering of fresh election by the Court or Tribunal where the election was marred by substantial irregularities or non-compliance which is exactly the ground contemplated by relief 1. He maintained that relief 6 ought not to be sought if relief 1 is granted as the Court is mandated under Section 140(2) of the Electoral Act to order fresh Election.
On the submission by the 3rd and 4th Respondents/Objectors that paragraph 4(1)(3)(a) of the 1st Schedule to the Electoral Act specifies the reliefs to be sought for by the Petitioner, it was argued that the examples of reliefs as stated are not exhaustive and that it is a canon of interpretation of Statute that the Statute must be read as a whole and in the case of paragraph 4(1)(3)(a); it must be read together with Section 140 of the Electoral Act in order to know the extent and the context to which the words “as for instance” can be restricted.
Paragraph 4(1)(3)(a) of the 1st Schedule he concluded on this arm of his response, is not intended to reduce to silence the relief of conducting fresh election as permitted by Section 140(2) of the Electoral Act.
Finally, in respect of relief 5 which necessitated the argument of the objectors that Section 221 of the 1999 Constitution forbids any association other than a political party from canvassing for votes, it was submitted that such submission is totally irrelevant to the question as to whether relief 6 is to be granted. Also, it was contended that the question of unenforceability of an act is only relevant where it is not granted by Statute but where it has been provided by Statute it is not open to the court to consider its unenforceability or otherwise before granting same.
Section 140(2) of the Electoral Act he insisted, mandates the court to grant relief 6 irrespective of its enforceability. In respect of relief 2, the learned Senior Counsel for the Petitioner reiterated that even if the Respondents are right, their contention earlier is that one relief is enough to sustain the petition.
ISSUE NUMBER 5, whether Ground 1 (ONE) of the Petition is not founded on pre-election matters, over which this Honourable Court has no jurisdiction? In response to the arguments of the 3rd and 4th Respondents/Objectors on this issue, the Petitioner referred us to page 9 of the petition, paragraph 13(a) thereof, the averment therein which comes within Section 138(b) of the Electoral Act; and the whole of paragraph 14(a) pages 9- 18 setting out the facts upon which the petition is predicated.
On the submission by the Objectors that Section 26(5) of the Electoral Act vests the jurisdiction to challenge the postponement and rescheduling of election on the Federal High Court, the petitioner argued that this does not rob the Court of the jurisdiction to enquire under Section 138(b) whether the act amounted to non-compliance or corrupt practices, irregularities, and so on; as there are no restrictions as to what constitute non-compliance. Quoting from the decision of Ubaezonu, J.C.A. in Peters v. David & ors. (1995) 5 NWLR (pt. 603) 486; which was commended to us, the learned Senior Counsel, submitted on the authority of Ojo v. INEC & Anor. (2008) 13 NWLR (Pt. 1105) 577 at 628 paragraphs B-F; that if the issue had been determined by a High Court, it would ground estoppel per rem judicata but that the decision does not mean that a petitioner cannot prove pre-election matter if it would substantiate a ground under Section 138(b).
On the reliance placed by the Objectors on Odedo v. INEC (supra), it was submitted that the decision of the Court was predicated on the reliefs sought which were all pre-election matters (pages 602 paragraphs B-C and G thereof refer) and should not apply to the petition at hand because there is no ground or relief in the nature of pre-election matters, herein. He further picked on the cases of Zaranda v. Tilde & Ors. (supra); Amaechi v. INEC (supra); Jang & Ors. v. Dariye & ors (supra); Duokpolagha v. George & Ors; all which he submitted either the claims or reliefs sought in them were pre-election matters and are inapplicable to this petition.
As regards the case of Ibrahim v. INEC & Ors. (supra), he contended that, that case was decided with regard to the particular provisions of paragraphs 6(3) and 7(2) of Schedule 4 of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 5 of 1999, which paragraphs were set ont at page 18 of the petitioner’s Address.
On the reliance placed on the case of ANPP & Anor v. Usman (supra) in the articulation of the Objectors point still on the pre-election nature of Ground 1 of the petition, the learned Senior Counsel urged us to adopt Peters v. David & Ors. (supra), if there is any conflict between the decisions of the two cases so far as it preserves the jurisdiction of the court to look into the question of noncompliance by way of corrupt practices even when committed before the election in so far as they may have affected the outcome of the election. Learned Senior Counsel then went into reproducing the provisions of Section 21 of the Electoral Act No. 4, 2002, submitting that in spite of the fact that subsections 4, 5, 8, and 9 set out by the learned Counsel for the 3rd and 4ft Respondents pertain to pre-election matters, this court still entertained the case of Ojukwu v. Obasanjo & Ors.; wherein the only ground for challenging the election was that the 1st Respondent was not qualified to contest the election. The case, he maintained, went to the Supreme Court in (2004) 12 NWLR (Pt. 886) and at pages 198 paragraphs C-E; 202 paragraphs G-H, 221 paragraphs B-C and 225 paragraphs H to 226 paragraphs C, contain some passages which show that the complaint of the petitioner was heard on the merits, ditto INEC & Ors. v. Anthony & Anor. (2011) 7 NWLR (Pt. 1245) 1 of which they decided, looked at the issue of the competence of the 1st Respondent therein to contest the election having regard to the ground of non-qualification raised (pages 609 to 615 referred).
In conclusion, it was submitted from the foregoing that this Honourable Court has the jurisdiction to entertain the ground complaining of corrupt practices, non-compliance and irregularities.
ISSUE NUMBER 6: Whether the averments in Paragraph 14(a) of the Petitioner’s Petition are not liable to be struck out in limine? In response to the arguments of the 3rd and 4th Respondents/ Objectors on this issue, the learned Senior Counsel to the Petitioner as a prelude, observed that although the Respondents set out the various subparagraphs of paragraph 14 from (a) to (p) that ought to be struck out, the learned Senior Counsel for the Respondents limited their issue for determination Number 6 at page 13, to paragraph 4(a). It was therefore submitted that having limited themselves in issue 6 to paragraph 14(a) alone, the Respondents cannot argue beyond paragraph 14(a) for it has been held in Dilibe & Ors. v. Nwakozor (1986) 5 NWLR (Pt. 41) 315 at 333 paragraphs B-C; Nimateks Associates Ltd. & Anor” V. Marco Construction Co. Ltd. &Ors, (1991) 2 NWLR (Pt. L74) 411 at 431 paragraph D and Ogundiyan v. The State (1991) 3 NWLR (Pt. 18t) 519 at 533 paragraph B; that parties are bound by issues raised in their briefs of argument and they cannot go outside them.
In the alternative the Petitioner refuted the contention of the Respondents at pages 32 to 33 of their Address, that paragraphs 14(a) to (p) are incompetent for being argumentative. On the cases of Okudo v. Inspector-General of Police (1999) 8 NWLR (Pt. 533) at 335; and Andomy v. Ayi (2004) All FWLR (Pt. 227) at 464; Odumegwu Ojukrvu v. Yar’Adua (supra); Uzodinma v. Udenwa & Ors. (supra) and West African Portland Cement v. Adeyori (2003) 12 NWLR (Pt. 835) 517; all cited by the learned Senior Counsel for the Respondents/Objectors to buttress their contention on the argumentative nature of the paragraphs in question, the learned Senior Counsel for the Petitioner argued on the contrary that those cases were all irrelevant to the issue at stake as they either dealt with insufficiency of pleadings, but not on the inelegance of pleadings as to whether the paragraph is argumentative.
On the arguments of the Respondents at pages 34 to 35 of their Address on the vagueness, non-supportability of material facts and specification of the States in South-South and South-East of the country where there were failures to collate and paste results etc., etc., the learned Senior counsel repeated his submission on the limitation of the Respondents to paragraph 14(a) of the petition and submitted further by reproducing Ground F of the preliminary objection that none of the arguments in the Respondents’ Address comes within the ambit of that ground of their objection or any other ground which omission is fatal to the Respondents’ case. Okoya & Ors. v. Santili & ors (1990) 2 NWLR (Pt. 131) 172 at 205 paragraphs F-G per Agbaje, and Karibi-whyte J.J.S.S.; and Ibrahim v. INEC & ors. (supra) at 348 paragraphs B-G which ratio was quoted in extenso, were cited to buttress the above submission.
Without prejudice to the above submission, the learned Senior Counsel for the Petitioner canvassed the point that the issue of quality of evidence adduced by the witnesses as contended in the Respondents’ Address on this arm of their submission is not a matter for preliminary objection but for trial. He added that if INEC & Ors. v. Anthony & Anor. (supra) and Buhari v. INEC & ors. (2008) 4 NWLR (Pt. 1075) 547 cited at page 34 of the Respondents’ Address were in support of their contention of the poor quality of evidence adduced, then they are not appropriate at this stage. Moreover, he maintained it was not suggested in those cases that the petitions should be terminated in limine.
Finally, the learned Senior Counsel for the Petitioner anchored his response with a quotation from the decision in Obasanya v. Onolaja & Ors. (2001) 2 NWLR (Pt. 697) 266 at 276 paragraphs B-F on the nature of preliminary objection which should be whether the processes are regular and not about sufficiency of evidence which is more or less like a demurrer as facts to be determined at the trial should not be determined at the interlocutory stage. Accordingly, it was submitted that the 3rd and 4th Respondents’ preliminary objection lacks merit and should be dismissed with substantial costs. It is worthy to note that the 3rd and 4th Respondents through their team of learned Counsel led by Chief Olanipekun, SAN, filed a Reply on points of Law on the 2nd of July , 2011 and in the course of the resolution of the issues we shall attempt to reflect on some of the salient issues raised therein, if necessary.
RESOLUTION OF ISSUES :
ISSUE NUMBER 1 OF ALL THE PARTIES.
We have gone the whole hog to reproduce almost verbatim the copious submissions of learned Senior Counsel on this vexed issue of filing the Petitioner’s Petition on a Sunday, the 8th of May, 2011. Our approach is predicated on the time honoured legal principle that the issue of jurisdiction as raised by the learned Senior Counsel for the respective Respondents is the font et origo, the life blood and threshold of our adjudicatory system. As was ably held per Fabiyi, J.S.C., in the recent case of Shelim & Anor. v. Gobang (2009) All FWLR (Pt.1866) at 1877 paras. A-G:- “It is no longer a moot point that the question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire of any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity.” Mustapha v. Governor of Lagos State (1937) 2 NWLR (Pt. 53) 539; Utih v. Onoyivwe (1991) I NWLR (Pt. 166) 166. Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of proceedings and even on appeal before this Court. State v. Onagoruwa (1992) 2 NWLR (PL 221) 33 at 54; National Bank v. Shoyoye (1997) 5 S.C. 181.
After all, the court pronounced with force in Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt 4) 557 that is court is only competent when:-
(a) it is properly constituted with respect to the number and qualification of its members;
(b) the subject matter of the action is within its jurisdiction;
(c) the action is initiated by due process of law; and
(d) any condition precedent to the exercise of a jurisdiction has been fulfilled.”
The above criteria for determining competence of a court have been restated by this Court several times; Skenconsult (Nig.) Ltd. & Anof v. Godwin Ukey (1951) LS.C. 6; Leedo Presidential Motel v. BON Ltd. (1995) 10 NWLR (Pt 570) 353 and also Timitimi v. Amabebe (1953) 14 WACA 374.” Incidentally the locus classicus of Madukolu v. Nkemdilim (supra) and Skenconsult v. Ukey (supra) have been cited by each of the learned Senior Counsel for the Respondents (Objectors) in their respective call on this Court to strike out the Petitioner’s Petition for non-compliance with the Rules, Statutes and criteria for the vesting of this Court with the jurisdiction to entertain this Petition. The dictum of Fabiyi, J.S.C. above reproduced and indeed the cases cited in support of the position he had taken shall set the tone for our resolution of this first issue.
Now, the learned Chiefs Olanipekun, SAN and Gadzama, SAN have argued that there is no dispute that prima facie, by the endorsement on the first page of the Petitioner’s Petition, it was filed on the 8th day of May 2011 which was a Sunday. Chief Olanipekun, SAN has also rightly submitted that Paragraph 54 of the 1st Schedule to the Electoral Act, 2010 (As Amended) enjoins us to apply the Federal High Court (Civil Procedure) Rules with such modifications as may be necessary to render them applicable having regard to the provisions of the Act, in Election matters.
The learned Mr. Ebun Sofunde (SAN) has also rightly argued that the Federal High Court (Civil Procedure) Rules are only applicable “subject to the express provisions of this Act” (i.e. the Electoral Act, 2010 (As Amended)” In other words, the Rules are subordinated to the Electoral Act, 2010 (As Amended) and the Rules made there under which are provided for under the 1st Schedule thereto. See Din v. Attorney-General of the Federation (1988) 4 NWLR 147; Kaycee (Nig.) ltd. v. Prompt Shipping Corp. & Anor. (1986) 1 NWLR 180; and Chief Denis C. Osadebay v. The Attorney-General of Bendel State (1991) 1 SCNJ 162 at 211 and 213; Per Nnaemeka-Agu, J.S.C. who held that “For it is the law that where a legislation derives its force of authority from & paramount enactment, the subordinate legislation, in appropriate metaphor, draws its life-blood from the paramount enactment and cannot have a wider binding force than the latter.”
Against this background we shall now consider the various Acts and Rules relied upon to buttress each other’s disparate positions on this issue. Beginning with Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 which is the fulcrum of the Respondents’ case, it provides thus:-
“Subject to the directions of the Chief Judge, sittings of the court for the dispatch of civil matters will be held on every week days except:
(a) on a public holiday;
(b) during the week beginning with Easter Monday;
(c) during the period beginning on 23rd December and ending on the 5th January next following;
(d) during the long vacation, i.e. the period beginning in any day in August and ending on a date not less than six weeks later ending on a Friday as the Chief Judge may by notification in the Gazette appoint”
The learned Senior Counsel for the Respondents and Petitioner have respectively anchored their submissions on Paragraphs 25(1) & (2) and 26(1) & (2) of the 1st Schedule to the Electoral Act, 2010, which provide that hearing of election petitions shall be from day to day until conclusion unless the Tribunal or Court so directs that there should be formal adjournment for that purpose and where the Tribunal Chairman or the Presiding Justice of the Court is disabled by illness or otherwise, the hearing may be recommended (sic) and concluded by another Chairman or Presiding Justice to be appointed by the appropriate authority. (Paragraph 25(1) and (2)).
Again, after the hearing of an election has begun, if the continuation of hearing cannot take place because the ensuing date is a Sunday or Public Holiday, the hearing shall not be adjourned sine die but to a definite day to be announced before the rising of the tribunal or the court and notice of the day to which the hearing is adjourned shall be posted by the Secretary on the Notice Board.
The hearing may be continued on a Saturday or on a Public Holiday. (See paragraph 26(1) & (2)).
Although by the legal maxims “expressio unius est exclusion alterius, “Generalia specialibus non derogant” and the cases of Kraus Thompson Org. v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44 at 64 and 65; Inakoju v. Adeleke (2007) 4 FWLR (Pt. 1025) 123 at 629; Schroder & Co. v. Major & Co. Ltd. (1989) 2 NWLR (Pt. 101) 1 at 6; are on the point in that Rule 4 of Order 46 and paragraphs 25 (1) &, (2) of the 1st Schedule to the Electoral Act, 2010 (As Amended) are not related to filing and opening of the Registry, and by virtue of Section 15(4) & (5) of the Interpretation Act and Section 4 of the Public Holidays Act, Sundays and Public Holidays are discounted in the computation of time where the doing of a thing is within a period which does not exceed six days; the learned Senior Counsel for the Petitioner has made a very salient point which cannot be ignored.
Apart from the fact that the provisions of Order 46 Rule 4 are subject to the discretion of the President, the submission of the learned Senior Counsel Sofunde, SAN, that implicit in the provision of paragraph 26(2) of the 1st Schedule to the Electoral Act, is that the Electoral Act envisages the opening of the Registry to do business on Saturdays and public holidays, is unassailable. This is because without the opening of the Registry, the Court ordinarily cannot sit.
Indeed whereas, the Registry may open without the Court sitting, the Court cannot sit without the opening of the Registry.
Mr. Sofunde, SAN; indeed hit the nail on the head and concretized his submission with the provision of the Interpretation Act (Section 10(2) thereof) which states that:-
“An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.”
Where, as in this case, the Rules and Schedule subject the sitting of the Court on non dies or public holidays to the discretion of the President, it logically follows from the provision of Section 10(2) of the Interpretation Act, that he has powers incidental to the opening of the Registry on those days.
This brings us to the Provision of Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules which stipulates thus;-
“7. The Registries of the Court shall, subject to the directives of the Chief Judge be opened to the public on every day in the year from 8 0’clock in the forenoon to 2 o’clock in the afternoon, except on Saturdays and Sundays or on any day declared as public holiday by the Federal Government”
The learned Senior Counsel for both the 3rd and 4th Respondents and 5th Respondent have argued with all force and vigour that this Rule indeed does not empower the Honourable, the President, to permit the Petitioner to file her Petition on a Sunday and cited particularly Ikhariale v. Okoh (supra) per Ogunwumiju, J.C.A. which the learned Senior Counsel for the 3rd and 4th Respondents posits, is the only authority on whether the Registry of a Tribunal or Court can open on a Saturday, Sunday or public holiday. In that case my Lord Ogunwumiju, J.C.A.; cited Iloka v. Itomi (1999) 2 NWLR (Pt. 592) 583, Section 15(5) of the Interpretation Act, Order 23 Rule 1(d) of the Federal High Court (Civil Procedure) Rules; Paragraph 25 of the 1st Schedule to the Electoral Act; and indeed Military Administrator of Delta State v. Olu of Warri (1997) 7 NWLR (Pt. 513 430; to hold that paragraph 25 of the 1st Schedule to the Electoral Act; does not state that the Registry of the Tribunal could open on a dies non juridicus as no legal business can be conducted on such days.
With due reverence, the attention of His Lordship may not have been drawn to the provisions of Section 10(2) of the Interpretation Act, which gives the Chairman incidental powers by paragraph 26 of the 1st Schedule to give directives for the Registry to open.
Indeed, contrary to the submissions of the learned Senior Counsel on behalf of the Respondents, Section 150 of the Evidence Act provides for the presumption of regularity in the following terms:-
“150(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied.
(2) When it is shown that any person acted in a public capacity it is presumed that he had been duly appointed and was entitled so to act”
In the instant case the Petitioner’s Petition as has been said earlier bears the stamp and imprimatur of the Registrar and Registry of the court of Appeal as having been filed on the 8th day of May, 2011 and therefore provides prima facie evidence of the regularity or otherwise for this Court to invoke the presumption under Section 150 of the Evidence Act in favour of the Petitioner. The position of the law is as expressed in the Latin maxim “Omnia praesumuntur rise esse acta” that is the presumption that what is done is presumed to brightly or regularly done. See the cases of Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 and Okeke v. The state (2003) 15 NWLR (Pt. 842) 25.
Again, contrary to the submissions of the learned senior counsel to the Respondents, the burden of establishing that there was no directive from the president to the Registrar to open the Registry on Sunday the 8th of May, 2011 for purposes of filing the Petitioner’s petition was/is on the Respondents which has not been discharged.
Although Ikhariale v. Okoh had been cited, we have demonstrated as we shall demonstrate anon that, that authority did not take into consideration the entire provisions of the Interpretation Act and indeed the Public Holidays Act, Cap. P40, Laws of the Federation of Nigeria, 2004. Suffice it to say that the English Authorities cited by Chief Gadzama are not applicable to the facts and circumstances of this case.
The learned Senior Counsel for the Petitioner in the course of his argument has referred us to Section 6(1) of the Public Holidays Act which states inter alia:-
“Notwithstanding any of the foregoing provisions of this Act, the Permanent Secretary of a Ministry or the Head of any Government Department may, unless otherwise ordered by the appropriate authority, if in the interest of the public service or the convenience of the public demand it, require all or any of the persons serving in his Ministry or Department, as the case may be, to perform on a Saturday, Sunday, or Public holiday such of their duties as he may deem necessary.”
The Act caps it up with the clincher in Section 6(3) thereof which reads:-
“(3) In this Section, references to Department include references to any court or tribunal set up pursuant to any enactment or any other institution the emoluments of whose employees are paid out of the consolidated Revenue Fund of the Federation or of a State or any other public fund of the Federation ……”
Commenting on the provisions of the above sections of the public Holidays Act, this Court, Per Nweze, JCA, in Daramola v. Aribisala & Anor. (2009) All FWLR (Pt. 496) 1964 at 2015 – 2017, Paras E-D; succinctly intoned:-“In the Latin days of the Law, days exempt from court proceedings were referred to as dies non juridicus, for convenience often abbreviated to dies none. Such days were almost always public holidays.
In Nigeria, there is an enactment that specifies days to be observed as public holidays. It is known as the Public Holidays Act. It is in Chapter P40, Laws of the Federation of Nigeria, 2004. It is a short enactment of only seven sections and a schedule. In all, the Act specifically itemizes ten such days to be so observed as public holidays. They are: New year’s Day, Good Friday, Easter Monday; Workers’ Day (1st May), Democracy Day (39th May); National Day (1st October), Christmas Day; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of ld-el-Fitr; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of ld-el-Kabir and such day as the Minister may declare to be a public holiday in celebration of the birthday of the Prophet Muhammed (Id-el-Maulud), section 1 and the Schedule. (Under the Act, those days are work-free days, section 2(3).
Now, counsel for the appellant had contended in paragraph 2.02 of his address dated 26 February 2009, that “Saturday, Sunday or public holiday are non dies, they are not working days in Nigeria within the realm of the Public Service.”
With due respect, not only is this contention unsupportable having regard to the above provision, pursuant to section 6 of the Act, If it is in the interest of the public service or if the convenience of the public demands it, public servants and public officers can even work on Saturdays, Sundays and Public Holidays Section 6 provides thus: – ……….
Under section 6(3), references to department include references to any court or tribunal set up pursuant to any enactment Appellant’s counsel in reaction to this provision took the view that this section cannot be invoked in the determination of this issue. According to him, the tribunal or its registry can only perform their duties on a Saturday, Sunday or public holiday when the President of the Court of appeal issues a directive to that effect. From all indications, this submission even overlooks one major fact. Since electoral justice may be compared to the vein which conveys the life-blood that sustains the heartbeat of our democratic experiment, Orubu v. I.N.E.C. (1988) 5 NWLR (Pt 94) 323 at 347, public interest demands that election petitions should be dealt with expeditiously. In his anxiety to satiate the public interest, the law maker, in paragraph 25(2) of the first schedule to the Electoral Act, even provides that hearing of petitions may be “continued on a Sunday or on a public Holiday if circumstances dictate”. Thus, the lower Tribunal did not require any further administrative directives from the President of this court to continue with the business of the tribunal, if the circumstances dictated that it should do so.”
The parties have each cited the Supreme Court case of Anie v. Uzorka (supra) to buttress their respective stance on why the petition should be struck out or sustained, In that case, Onu, J.S.C. gave judicial assent to Sections 6(3) and 6(1) that the Chief Judge and (herein the Honourable President) in their roles as judicial administrators, are empowered to request work to be done on a dies non juridicus. As for sitting or filing of processes like the Petition which is now the bone of contention in this case, this Court, per Agube J.C.A.; had in Kupolati v. Oke (2009) All FWLR (Pt. 486) 1853 at 1916 to 1917 cited the portion of Anie v. Uzorka (supra) where the apex Court held that any Judge has the jurisdiction to sit on a Sunday which is a dies non juridicus provided it does not compel the litigants who are members of the public or their Counsel to appear in Court.
By parity of reasoning; it has not been shown in this case that the Petitioner or Counsel on her behalf was compelled to file her petition on a Sunday so as to warrant the invalidation of the said petition. Indeed, the zeal to file his petition before the expiration of the time stipulated by the Electoral Act and the sacrifice by the staff of the Registry to work on a Sunday owing to the Sui generis nature of election petitions(which ought even to be commended), cannot attract the ire of the court. The Respondents have not complained that they have suffered any injustice nor can they be heard to so complain of any injustice occasioned them by the filing of the Petitioner’s processes on a Sunday.
“The hey days of technicalities are now over because the weight of judicial authorities has shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties.” per Achike, J.S.C. (of blessed memory). See Egolum v. Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 413; General Muhammadu Buhari & Anor v. Alhaji Mohammed Dikko Yusuf & Anor (2003) 14 NWLR (pt. 841), 466 pages 498-499; per Uwaifo J.S.C. It is on these grounds that we hold that the petition is not a nullity for being filed on Sunday. This Court is therefore seised of the jurisdiction to entertain the Petitioner’s Petition. Issue Number 1 of all the parties is resolved in favour of the Petitioner.
RESOLUTION OF ISSUE 2 OF THE 3RD AND 4TH RESPONDENTS.
In the resolution of this issue it is necessary to have recourse to paragraphs 1 and 2 of the Petition to which the learned SAN, Chief Olanipekun drew our attention. As he aptly stated, those paragraphs aver that the Petitioner (Congress for Progressive Change a.k.a. CPC), was the sponsor of General Muhammadu Buhari and Pastor Tunde Bakare as its Presidential and Vice Presidential candidates – the duo who were sponsored to contest and indeed contested the Presidential Election of 16th April, 2011 “and the Petitioner as such has the right to bring this Petition.”
In particular Paragraph 2 avers:
“2. Your Petitioner is a registered political party in Nigeria that participated in the Presidential election held on Saturday the 16th day of April, 2011 in Nigeria, in which it sponsored General Muhammadu Buhari and Pastor Tunde Bakare as its Presidential and Vice Presidential candidates, And your Petitioner claims that it has a right to present this election Petition.”
We have deliberately underlined some portions of the above paragraph of the petition in view of the contentions of the parties on this issue which in the main is whether the non-joinder of Muhammadu Buhari and Pastor Tunde Bakare as Petitioners is fatal to this petition, thereby warranting its being struck out. We shall call on the Electoral Act and judicial authorities decided in that respect to give us a clue.
Section 137(1) of the Electoral Act 2010 (As Amended) which by its marginal note deals with “Persons Entitled to Present Election Petitions”, provides thus:-
“737.-(1) 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.”
From the underlined portions of paragraph 2 of the Petition, the petitioner has pleaded that it is a registered politic al patty in Nigeria that participated in the Presidential election held on Saturday the 16th day of April, 2011 in Nigeria and having sponsored Muhammadu Buhari and Tunde Bakare as it’s Presidential and Vice Presidential candidates at the said election, it therefore has a right by virtue of Section 137(1)(b) of the Electoral Act, 2010, to present this petition.
The 3rd and 4th Respondents have in their ingeneous arguments insisted that since the Presidential and Vice Presidential Candidates were sponsored by the Petitioner, they ought to be joined more particularly because in prayers 1, 3 and 4, the Petitioner seeks the nullification of the election of the 3rd and 4th Respondents and not that of the PDP; and also for fresh election to be arranged between it and 3rd Respondent and not with the 5th Respondent.
We have also been inundated with avalanche of decided cases on joinder of parties, one of which is Edokpolor & Co. Ltd. v. Sem EdoWires Ind. Ltd. (2001) FWLR (Pt. 74) 399 at 429 paragraphs A; where the Supreme Court restated the need to join all necessary parties to a Suit in the following terms:-
“It is essential to join all necessary parties in a suit so as to enable the Court effectively and completely adjudicate upon and settle all questions in controversy.”
The cases of Registered Trustees of M.W.H.U. v. Registered Trustees of Community Health Practitioners of Nigeria & Ors (2008) Alt FWLR (Pt. 412) 1013 at 1074, paragraphs A-B and Green v, Green (1937) 2 N.S.C.C. 1115 at 1125; on the general and common law principles of joinder and non-joinder of parties cited by the Respondents, are no doubt, apposite.
However, it would appear that all the cases cited in respect of election matters particularly Buhari v. Obasanjo (supra); Egolum v. Obasanjo (supra); Tafida v. Bafarawa (supra); and Ubom v. Araka (supra); even though decided on sound legal principles and on their peculiar facts and circumstances; have been cited out of context in the petition herein. Although Buhari v. Obasanio (2005) 13 NWLR (Pt. 941) 1 at 313-314 enumerated necessary parties who ought to be joined at an election petition, the case, as was rightly argued by the learned Senior Counsel for the petitioner, related to non-joinder of Statutory Respondents, ditto Egolum v. Obasanio; Buhari v. yusuf & Ors. (supra) which were all decided on the basis of either Statutory Respondents or principles of audi alteram partem or fair hearing. See the various dicta of Uwaifo, J.S.C., in Buhari v. Yusuf (supra); Obaseki J.S.C. in obih v, Mbakwe (1984) 1 SCNLR 192 at 204 and Belgore, J.S.S. (as he then was) in Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) 355 at 397; which for lack of space cannot be reproduced here as done in the Petitioner’s Written Address at pages 9 and 10 respectively.
In fact Egolum v. Obasanjo (supra) and Buhari v. Obasanjo (supra) rather support the case of the Petitioner and the learned Senior Counsel for the Petitioner had sealed the doom of the Respondents’ objection on this ground of non-joinder when he drew the analogy between Solomon Green who had interest in the Jeky House Chieftaincy but was not joined as a plaintiff in Green v. Green (supra) and General Muhammadu Buhari and Pastor Tunde Bakare who as candidates sponsored by the Petitioner were also not joined in this petition. For, although they are desirable parties who may benefit from the outcome of the petition, the Electoral Act gives the Political party (C.P.C.) under whose umbrage they contested the election, the right to challenge the election and neither the Respondents nor even this Court can compel the Petitioners to join the said candidates in this petition.
The argument that the Court does not make an order in vain and that a necessary party is that party that would be affected by the order or decision of the Court as advanced by the Respondents is non sequitur in view of the Statutory provision in Section 137(1)(b) that recognizes the fact that a political party is a juristic person with the right to sue and be sued. In this context, it would appear that the Electoral Act by that Section recognizes the commonality of interest between a political party and its sponsored candidates and that any or both of them can bring a petition to challenge an election of which they were Participants.
Also, by parity of reasoning and extrapolation, by a community reading of Section 137(1)(a) and (b) and subsection (3) of that Section which stipulates unequivocally as follows:-
“(3) If the Petitioner complains of the conduct of an Electoral Offices, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be:
(a) made a respondent; and
(b) deemed to be defending the petition for itself and on behalf of its officers or such person”
Even though Muhammadu Buhari and pastor Tunde Bakare have been joined in this petition, the petitioner shall be deemed by provisions of section 137(1)(b) to be prosecuting the petition behalf of the candidates as a corollary to Section 137(3) of Electoral Act, 2010 (As Amended).
In any event, by the combined effect of section 137(1)(b) and (3) of the Electoral Act, 2010 (As Amended), order 9 Rule 1 (1) (2) and (3) of the Federal High court (civil Procedure)Rules, 2009 and Paragraph 53 (1) and (4) of the 1st Schedule to the Electoral Act and the cases of Bello v. INEC (2010) 8 NWLR (pt. 1196) 342; Sapo v. Sunmonu (2010) 11 NWLR (pt. 1205) 374; no proceedings shall be defeated by reason of misjoinder or non joinder of parties and a Judge may deal with the matter in controversy, so far as regards the right of the parties. Where as in this case, the Electoral Act recognizes the inalienable rights of either the party, or candidate or both to bring a petition in this Court, the petition cannot be struck out for non- joinder of Muhammadu Buhari and Pastor Tunde Bakare. See per Kalgo J.S.C. in Obasanio v. Buhari (2003) 17 NWLR (pt. 850) 510 at 563.
On the whole, this Court has the jurisdiction to entertain this Petition which is properly constituted even without the joinder of the Presidential and Vice Presidential candidates of the Petitioner.
Issue Number 2 is resolved in favour of the Petitioner.
RESOLUTION OF ISSUE NUMBER 3: The basis of the Objectors’ contention is that there is no precedent for a political party to singly or solely file an election petition and asking for a major relief that a re-run election be ordered between it and the candidate of a political party. The learned Senior Counsel for the Respondents had cited Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188; Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126 at 142 and Owonikoko v. Arowosaye (1997) 10 NWLR (pt. 523) 61 at 76 on the connotation of abuse of Court process as “where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.” This may well be the position of the law.
Oputa, J.S.C, in the locus classicus of Amaefule & Anor. v. The State (1988) 2 NWLR 156 at 117; laid bare the essential elements of abuse of Court process when he posited thus:-
“Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper Use of legal process……..On very careful consideration, I am forced to the conclusion that to amount to an abuse of process the proceeding or step in the proceeding complained of, will, in any event, be lacking in bona fide; it has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil or criminal, for a purpose, and to obtain result not lawfully warranted or properly attainable thereby- ”
Also, there is no doubt that in Plateau State v. AG Federation (2006) 3 NWLR (pt. 967) 346 at 416, the court had held that a suit is academic, if it is merely theoretical, full of sound and fury but of no utilitarian value to the Plaintiff even if judgment is given in his favour. Ajadi v. Ajibola (supra); Adewumi & Anor v. AG Ekiti State (2002) 2 NWLR (pt. 751) 454 at 525; Olale v. Ekwelendu (1989) 4 NWLR (pt. 115) 344 and Kosile v. Folarin (1989) 3 NWLR (pt. 107) 8; all cited by the Respondents/Objectors may have decided, and rightly too, that the Courts are not concerned with hypothetical, academic and moot questions.
It is also the law that where a suit is initiated solely with bias and malicious intent for the purpose of deliberately misusing or perverting the court system for an otherwise unattainable result, then such a suit should be struck down for abuse of court process.
Going by the definitions of the term “abuse of court process” as enunciated by the above cited authorities, can one with all honesty and reasonability categorize this petition as falling within the parameters or ambit of an abuse process? Section 137 (1) (b) of the Electoral Act as we had earlier held gives the Petitioner as a political party that sponsored candidates at the Presidential Election, the right to initiate proceedings challenging an election of which they participated.
By Paragraphs 1 and 2 of the Petition, the Petitioner is statutorily imbued with the right to bring this petition before this Court and no ill motive, hypothetical, academic, or moot questions can be inferred from the Petitioner’s right to question the election more particularly as the grounds upon which the petition is predicated are as cognizable by Section 138 (1)(b) and (c) of the Electoral Act, 2010 (As Amended) i.e. that “the 3rd and 4th Respondents were not duly elected by majority of lawful votes cast at the election” and “that the election was invalid by reason of corrupt practices and substantial non compliance with the provisions of the Electoral Act, 2010, which substantially affected the result of the election.”
We therefore totally agree with the submissions of Mr. Ebun Sofunde, SAN, and on the authorities of Saraki & Anor v. Kotoye (1992) 9 NWLR (pt 264) 156 at 189; paras. B – C and Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (pt. 724) 369, S.C per Karibi Whyte, J.S.C, that:-
“it cannot be abuse of process of court to exercise bona fides one’s undoubted right to appeal (here to petition) conferred on him by the Constitution (herein the Electoral Act, 2010 (As Amended).”
Having shown that a right is conferred on it by the Electoral Act, malice or motives (which do not even exist in this case) are immaterial to the presentation of the petition.
Accordingly, this issue is again resolved in favour of the Petitioner as we hold that the petition is not abusive of court process nor does it raise hypothetical, academic, or moot questions or issues. The issues raised in the petition are live and donated by the Electoral Act to the Petitioner as of right.
RESOLUTION OF ISSUE NUMBER 4:- In the Resolution of this issue, our starting point is to strike out relief 4 of the Petition since the Petitioner has conceded in paragraph 6.3 of the Petitioner’s Written Address at page 13 that “it does not come within the ambit of the Electoral Act.” That relief is therefore struck out accordingly.
As regards relief Number 6, we agree with the submission of Chief Olanipekun, SAN, that it is constitutionally un-grantable. This is because the invocation of the provisions of Section 134 (4) of the Constitution, under which the relief is predicated, has not arisen or did not arise during the election. No situation of a tie as contemplated by the provision of the Constitution aforesaid has also arisen so as to call for the invocation of Section 140 (2) of the Electoral Act, 2010 as submitted by the Petitioner. Relief Number 6 is also struck out.
We have considered the arguments for and against the remaining reliefs namely: – 1, 2, 3, and 5 and are of the considered view that they are sustainable under the Electoral Law. Accordingly, they are not liable to be struck out but renumbered as reliefs 1, 2, 3 and 4. This issue succeeds in part.
RBSOLUTION OF ISSUE NUMBER 5:- It is trite and we agree with the Respondents contentions that this Honourable Court as constituted has no jurisdiction to entertain pre-election matters. See Odedo v. INEC (supra), Orji v. Ugochukwu (supra); Oio v. INEC, etc.; Olofu v. Itodo (2010) 18 NWLR (pt. 1225) 545; and Ucha v. Onwe (2011) 4 NWLR (Pt. 1237) 386.
As regards the submissions of the learned Senior Counsel for the 3rd and 4th Respondents on the issue raised above, it is clear and a careful perusal of the petition would reveal that there is no Ground 1 as stated in the Respondents’ Written Address. However, Paragraph 13 (a) of the Petition contains the ground that is consistent with Section 138 (1) (b) of the Electoral Act. It therefore follows that the Ground is cognizable under the law and is sustainable.
Accordingly, Issue 5 is resolved in favour of the Petitioner.
RESOLUTION OF ISSUE NUMBER 6:- We have taken a cursory look at paragraph 14 of the Petition and its sub-paragraphs that the 3rd and 4th Respondents pilloried as being incompetent on the ground that they are argumentative particularly paragraphs (a), (c), (d), (d)(i), (d)(ii), (d)(xiv), (d)(vi), (d)(ix), (h), (i), (i), (k), (l), (m), (n), (o), and (p) which the learned Senior Counsel on behalf of the Respondents urged us to strike out on the authorities of Okudo v. IGP (1988) I NWLR (pt. 533) and Andony v. Ayi (2004) ALL FWLR (pt. 227) 464 at 471-472 per Thomas, J.C.A, where particulars of Grounds of Appeal were struck out for being argumentative, repetitive and narrative. Also we are not unaware of the decision in Ojukwu v. Yar’Adua (2003) 4 NWLR (pt. 1073) 435 at 462; which decision was copiously quoted at page 33 of the 3rd and 4th Respondents/Objectors Written Address on the need for facts pleaded in support of a petition to be precise and clear.
However, the learned Senior Counsel for the Petitioner has rightly observed (and we are in total agreement with his submission) on the authorities of Dilibe & Ors. v. Nwakozor (1936) 5 NWLR (pt. 41) 315 at 333 paragraphs B – C; Nimateks Associates Ltd. & Anor. v. Marco Construction Co. Ltd. & Ors. (1991) 2 NWLR (pt. 174) 411 at 431 paragraph D and Ogundiyan v. The State (1991) 3 NWLR (pt. 181) 519 at 533 para. B; that just like parties are bound by their pleadings and should not set up a case different from what they have pleaded during the hearing of the case, so shall learned Counsel be bound by the issues raised in their Briefs of Argument or their Written Addresses.
Thus, having by Issue 6 limited themselves to paragraph 14 (a) in spite of the fact that by Ground F of the grounds upon which the objection was predicated, their complaint was that “the entire paragraph 14 of the Petition is incompetent and/or argumentative particularly paragraphs 14 (a)…………… “, they are deemed to have abandoned their complaint on the rest of the paragraphs except paragraph 14 (a).
Again, since none of the arguments canvassed in paragraph 8.7 of the 3rd and 4th Respondents’ Written Address is covered by Issue Number 6, all those arguments go to no issue and accordingly have been discountenanced.
Finally, notwithstanding that the facts pleaded in the opening sentence of paragraph 14(a) complain of multiple registration of voters which facts relate to pre-election matters, this Court is seised of the vires or jurisdiction to entertain such a complaint since at the tail end of the paragraph, the sentence ends with the complaint that the multiple registration of voters at the polling units led to multiple voting by members of the 5th Respondent at the units. The dictum of Salami, J.C.A (now P.C.A) in Ibrahim v. INEC (1999) 1 NWLR (pt. 614) 334 at 351 and the decision in A.N.P.P v. Usman (2008) 12 NWLR (pt. 1100) 1 at 55; cited by the Respondents although, decided on their peculiar facts and circumstances, with the greatest respect, are not applicable to this case.
This issue is resolved against the Respondents and on the whole the Preliminary Objection of the 3rd and 4th Respondents partly succeeds.
5TH RESPONDENT’S ISSUES.
ISSUE NUMBER 2.-On this issue which is whether the non-joinder of the Police, the Army, and Civil Security Agents is proper and sustainable in law, given the spurious allegations levelled against them, Chief J.K. Gadzama, SAN, drew our attention to the position of the law (the Electoral Act, 2010 (As Amended)) and paragraphs 14(d)(iv) and 38 of the Petition, submitting that where specific allegations have been made against persons or group of persons in an election petition, the proper procedure in law is to join them. In the instant case, he continued, since the petition has severally mentioned in the above mentioned paragraphs, members of the Police Force, the Army and Civil Security in general, they should have been joined because without them the issue raised cannot be effectively resolved.
To buttress his submission, the learned Senior Counsel sought solace in Egolum v. Obasanjo (1999) 7 NWLR (pt. 609) per Belgore, J.S.C (as he then was) who pronounced on the various paragraphs in which allegations were made against Electoral Officers who were not joined, as incompetent for non – joinder. The learned Senior Advocate further referred us to Section 137 (3) of the Electoral Act, 2010 (As Amended), which dispenses with the joinder of Electoral Officers as parties once the Electoral Commission has been sued. He however, insisted that the Police, the Army, and Civil Security are definitely not staff of the Commission and must be afforded the chance to defend themselves against the allegations of criminal nature levelled against them.
Furthermore, it was contended that the serious criminal allegations against the Police, Army, and Security Agencies would affect the petition either negatively or positively and the affected Agencies should not be condemned unheard. In the light of the above submissions, he urged us to strike out paragraphs 14 (d) (iv) and 38 of the Petition as well as the various Witnesses statements in which the Police, the Army, and Civil Security Agencies were mentioned as having committed electoral offences, as they go to no issue the parties having not been joined.
In response to the above submissions, the Petitioner through Chief Sofunde, SAN, quoted a passage of Egolum v. Obasanjo (supra) at page 397 B-C for the proper import of that decision submitting that the statement that every one against whom allegation is made in an election petition must be given the opportunity to be heard was made in the context of Section 50 (2) of Decree No. 6 of 1999 which created statutory defendants who must be joined in a petition where their conduct was subject to complaint.
The learned SAN then referred us to the dictum of Uwaifo, J.S.C in Buhari & Ors. v. Yusuf & Anor. (2003) 14 NWLR (pt. 841) 446 at 493 paras. D – H which according to the underlined portions of the reproduced ratio, explains the purport of Egolum v. Obasanio & Ors. (supra) and that by that passage, a necessary party is only one because the provisions of a statute have made him thus. Furthermore, he noted, the passage demonstrates that a person who has not been made a necessary party by statute cannot be made a party in order to make allegations against him; as such a person can only be “someone who will need to be called as a witness”. In this context therefore, he maintained that the Nigeria Police Force, the Army and Civil Security are not necessary parties by virtue of Section 137(3) of the Electoral Act as they qualify as persons who need to be called as witnesses but need not be joined.
References were made again to pages 497 to 499 paragraphs H-A of Buhari & Anor. V. Yusuf & Anor (supra), per Uwaifo, J.S.C. and distinguished between the provisions of Section 133(2) of the Electoral Act, 2002, which fell for interpretation and contained “any other person who took part in the conduct of an election” as against the current provision of Section 137(3) that has no such identical provision. Accordingly, it was submitted that the category of persons not joined in this case does not qualify to be joined by virtue of the statement in the above passage and a fortiori, the Police, Army and Civil Security Agencies are not necessary parties but are parties who should be called as witnesses. Ige v. Farinde (1994) 7 NWLR (Pt.584) 42 on the key test for joinder of parties in an action which is that the case cannot be effectually and completely settled unless the parties are joined, was again cited, to submit finally on this arm of the issue that the Police, Army and Civil Security have no interest and will not be affected by the result of the petition. He therefore called on us not to strike out any particular paragraph of the petition.
In respect of paragraph 38 which was reproduced at page 9 paragraph 4.12 of the Written Address, the learned Senior Counsel submitted that in so far as the Petitioners elected to treat the Security Agencies as agents of INEC, it is open to them (Petitioners) to sue the principals alone in so far as there is no provision making them Statutory defendants.
ISSUE NO. 3 OF THE 5TH RESPONDENT:- Questions whether the joinder of the 2nd, 6th-42nd Respondent is proper and sustainable in law, having regard to the provisions of Section 137(3) of the Electoral Act, 2010 (As Amended). Arguing this issue, the learned Senior Counsel for the 5th Respondents cited Section 137(3) of the Electoral Act, 2010 (As Amended) to submit that the 2nd, 6th-42nd Respondents are not necessary parties.
He pointed out that one cannot claim ignorance of Section 144(2) of the Electoral Act, 2006 which he reproduced at page 11 paragraph 26 of the 5th Respondent’s Written Address. The learned Senior Counsel asserted that in the past, it was desirable for petitioners to join the Electoral Officer against whom allegations were leveled in his name or join his office. He referred to Egolum v. Obasanjo (supra) where Electoral Officers whom allegations were made were not joined nor were their offices let they featured prominently in the petition and Belgore, J.S.C. (as he then was) declared the paragraphs in which they featured incompetent. He added that the law as it stood gave the Electoral Officers the opportunity to defend themselves against the allegations made against them but the provision made Election Petitions cumbersome as all the officers had to be joined if their conduct was complained of. Today, the learned Senior Counsel added, the issue has been resolved by prohibiting the joinder of Electoral Officers since the Independent National Electoral Commission would suffice as Respondent. According to him, the wordings of the Statute is “shall’ and therefore mandatory. For the above submission he relied on the dictum of Sankey J.C.A. in Adams v. Umar (2009) 5 NWLR (Pt. 1133) 109; on the meaning of “shall” to contend that the petitioner misdirected itself in joining the 2nd, 6th-42nd Respondents as parties in the petition as the Electoral Act expressly mandates the suing of the Commission alone as sufficient. Reacting to the submissions of the 5th Respondent’s Senior Counsel, Mr. Sofunde, SAN for the Petitioner countered that the definition of the word “shall” in the context in which it is used in Section 137 (3) of the Electoral Act, 2010 (As Amended) is misplaced by the 5th respondent’s Senior Counsel. According to the learned Senior Counsel for the Petitioner, the relevant words are “shall not be necessary”, in other words, he continued; a Petitioner shall not be compelled to join those persons or he does not have to join them which does not mean that “they shall not be joined”‘.
The learned senior Counsel finally reiterated that Section 137 (3) of the Electoral Act means that the Petitioner is not compelled to join Electoral Officers, but has the option to join them.
RESOLUTION OF ISSUE NO. 2
We have carefully considered the submissions of the learned Senior Counsel on both sides on this issue and have noted that they each rely on Egolum v. Obasanjo (supra) where the Supreme Court interpreted Decree No. 6 of 1999 which then mandated by Section 50(2) thereof, that where a complaint was made against Electoral, Presiding or Returning Officers or any other persons involved in the conduct of an election he must be joined as a necessary party. The Section in question was replicated in Section 133(2) of the Electoral Act of 2002 and fell for interpretation per Uwaifo J.S.C. in Buhari & Ors. v. Yusuf & Ors. (supra).
In that case the erudite Justice of the apex Court made a pronouncement which to our mind is anchored on sound principle that the phrase “Any other person who took part in the conduct of an election” should not be restricted to INEC. Just like in this case where Police officers, the Army and Civil Defence or Security Corps members assigned the duty to ensure the peaceful and orderly conduct of the election in the various Constituencies to which they were posted, were alleged to have forcefully snatched ballot papers, ballot boxes and electoral materials from polling stations which they used to secure unlawful votes for the 5th Respondent, it accords with the tenets of natural justice or fair hearing to join them so as to defend themselves against such criminal allegations.
It cannot be seriously contended as the learned Senior Counsel for the Petitioner has done on behalf of the Petitioner that, because Section 137(3) of the current Electoral Act, 2010 (As Amended) does not include the phrase “any other person who took part in the election” (which is not the case), the Security Agencies against whom allegations were made are not necessary parties but necessary witnesses. Such proposition of the law is unfounded in view of the provisions of Section 137(3) of the Electoral Act 2010; which is to the effect that;-
“(3) If the petitioner complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance be:
(a) made respondent; and
(b) deemed to be defending the petition and such other persons.”‘
Upon a careful analysis of the above provisions, we are of the considered view that based on the ejusdem generis rule as expounded in the case of Buhari & Anor. v. Obasanjo (supra); per Uwaifo, J.S.C. ; “such other persons” in the context of Section 137(3) of the 2010 Electoral Act, can only mean agents of the Electoral Commission and nothing more. In this case, the Army, Policemen and Security Agents are alleged agents of the 5th Respondents the Peoples Democratic Party.
It is common knowledge that the Nigeria Police, Army and Civil Defence Security Corps are statutory bodies charged with the maintenance of peace, order and defence of our territorial integrity. They can therefore not be categorized as agents of the 5th Respondent for purposes of Election. These bodies are normally deployed by INEC and if they went out of their constitutional duties to engage in nefarious activities as claimed by the petitioner, then the rule of fair hearing demands that they be joined so as to defend themselves because their alleged conduct if proved shall affect the petition positively. Even if so, by the decision in Ige v. Farinde (supra); there is no how this petition can be effectually and completely settled without joining these organs against whom serious allegations have been made in view of the effect the allegation would have on their integrity as security outfits. Therefore Obih v. Mbakwe (1984) 1 SCNLR 192 at 204 per Obaseki, J.S.C. and Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 at 397 per Belgore J.S.C. (as he then was) and Buhari & Anor v. Yusuf & Anor (2003) 14 NWLR (Pt. 841) 446 at 493; apply mutatis mutandis to this petition, more so, as none of the Police, Army and Civil Security Officers have been mentioned by their names, even when the Respondents sought for further particulars in this respect, which in any case have not been furnished. In the light of the foregoing paragraph 14(d)(iv) of the Petition is struck out.
As far as paragraph 38 of the petition is concerned, we are of the candid view and in agreement with the petitioner that where the petition pleads that the result recorded in favour of the 3rd, 4th and 5th Respondents were only a product of corrupt practice brought about by the imposition of unlawful restrictions of movement and deployment of armed and civilian security outfits and soldiers on the instructions of the 3rd Respondent, who equally ordered the use of Police and Army transport equipments for deployment of sensitive electoral materials without the participation of the petitioner or his representatives, the allegations were clearly against the 3rd Respondent and not the security officers.
Paragraph 38 of the petition is therefore sustainable. This issue is again partly resolved in favour of the Respondent.
RESOLUTION OF THE 5TH RESPONDENT’S ISSUE 3
We have looked at the provision of Section 137 (3) of the Electoral Act, 2010 and we are of the candid view that the wordings are simple and straight forward and without straining any nerves or resorting to any techniques of interpretation, ought to be given its simple grammatical interpretation. There is no doubt that Sankey, J.C.A, had defined the word “Shall” to mean a word of command which must be given an obligatory meaning as denoting compulsion and has the invaluable consequence of excluding the thought of discretion to impose a duty which must be enforced. In other words, where a statute as Section 137(3) provides that a thing “shall” be done, the expected and proper meaning is that a peremptory and absolute mandate is enjoined. We agree with the position taken by Mr. Sofunde, SAN, that the operative word in the statute which is “shall” governs “not be necessary”, and not “shall not join”.
As highlighted earlier, the purport of that subsection is to render unnecessary the joinder of the 2nd, 6th, 42nd Respondents in the Petition if there are allegations against them by the Petitioner. In other words, where the Electoral Commission as in the instant case, is proceeded against in an Election Petition, it shall not be necessary to join Electoral Officers, Returning Officers or Presiding Officers who partook in the conduct of an election; if allegations are made against them.
The learned Senior Counsel for the Petitioner aptly captured the real essence of this Section in his argument of Issue Number 2, when he submitted that the purport of Sections 144(2) of the Electoral Act, 2006; 50(2) of Decree Number 6 of 1999 and the Electoral Act, 2002 (Section 133(2)) thereof; were interpreted in Egolum v. Obasanjo (supra) and Buhari v. Yusuf (supra) where the concept of statutory Respondents was entrenched. Consequently, it was hitherto of necessity that if complaints were made against Electoral Officers, Presiding Officers, or Returning officers or any persons who took part in the conduct of an Election, they became necessary parties who ought to be joined willy-nilly.
The current provisions of Section 137 (3) of the 2010 Electoral Act (As Amended) is to obviate a situation where whole hordes of Electoral Officers, Presiding Officers, Returning Officers, and all sorts of parties are included as Respondents thereby making the Petition unnecessarily unwieldy with several witnesses coming to state the same facts.
From the foregoing, we are of the considered view that the joinder of the 2nd, 6th 42nd Respondents is a mere surplusage which is not absolutely prohibited as erroneously posited by J.K. Gadzama, SAN, in the 5th Respondent’s Written Address. The joinder is not fatal to the merits of the petition so as to warrant our striking out the names of the 2nd, 6th 42nd Respondents. The learned Senior Counsel representing the 2nd, 6th – 42nd Respondents.
Dr. Onyechi Ikpeazu, SAN, who was in court, informed us that they did not file any objection even though he made a terse contribution on the first Issue of filling the petition on Sunday.
On the whole, the Preliminary Objections of the 3rd, 4th and 5th Respondents have only succeeded in part and we so hold.
To recapitulate on the entire objections, we hereby resolve as follows:-
i. That the petition is competent even though filed on a Sunday.
ii. That reliefs 4 and 6 of the petition are incompetent and are struck out.
iii. That paragraph 14(d)(iv) of the Petition is incompetent and is hereby struck out for non-joinder of the Nigerian Police, the Army, and Civil Security officers who purportedly aided the 5th Respondent to snatch ballot papers, ballot boxes, and sensitive election materials at the election in question.
There shall be no order as to costs.
MOHAMMED L. GARBA: I agree.
M.A. OWOADE: I agree.
IGNATIUS IGWE AGUBE: I agree
OBANDE OGBUINYA: I agree.
Appearances
1. Ebun O. Sofunde, SAN
2. Abubakar Malami SAN
3. A.B. Mahmud Esq.
4. Ismaila Alasa Esq.
5. B.A. Babalola Esq.
6. Imhanobe Sylvester Esq.
8. Chief O.O. Obono-Obla Esq.
9. Joshua Akor Esq.
10. Mary Ekpere Esq.
11. Daisy Anagende Esq. For Appellant
AND
Chief Wole Olanipekun, SAN
Dr. Alex A. Izinyon, SAN
D.D. Dodo, SAN
Mr. J.T.U. Nnodum, SAN
M. Paul Erokoro, SAN
F.F. Egele, Esq.
Mr. O.A. Omonuwa, SAN
Bola Aidi
Ehi Uwaifoh, Esq.;
U. Egbon, Esq.
Abimbola Kayode,
Gbenga Adeyemi, Esq.
John Okonkwo, Esq.
Okwy Anozie, Esq;
A.L. Yabidu (Miss)
A.L.Yabidu (Miss)
Dapo Olanipekun, Esq.;
Kenneth Omoruan, Esq.
Hannatu Abdurrahman (Mrs.)
F.O. Iziyon, Esq.;
Chinenye Onyemaizu, Esq.;
Ukonwa Ikedife;
Kauna Penzi, (Miss)
Rachael Osibu
Babara Omosun (Miss)
Patrick Abang, Esq.
Kingley Odey, Esq;
Chidinma Uwa, Esq.;
Okonache Ogor, Esq.
Patrick Umoh, Esq.
Alex A. Izinyon (II) Esq.
Gbemisola Orimoloye;
Olamide Ehinson (Miss)
Dr. Onyechi Ikpeazu, OON, SAN
Ahmed Raji
Victoria Awomolo (Mrs.)
Eyitayo Fatogun
Patience Osagiede-Ofeyi (Mrs.)
Kehinde Ogunwumiju
Seun Alabi
Hassan M. Liman
Bello Abdullahi
Wale Balogun
Hajara Baba-Ajanah (Mrs.)
Onyinyechi Ezindu (Miss)
Aminu Sadauki
Prisca Ozoilesike (Miss)
Marcus Abu Chinedu
Y.D. Hadi Jazuli
Ebuka Nwaeze
Baraka Ali (Miss)
Fatima Bukar (Miss)
Anulika Osuigwe (Miss)
D.E. Daniel
Ephraim Ajijola
I.M. Dikko
Adeola Adedipe
Chinedu Onyechi-Ikpeazu (Miss)
Oluwasanmi Aiyemowa
I. Shuaibu
I. Uwa
Feyisayo Folorunso (Mrs.)
Linda Otuoniyo (Miss)
Seyi Sowemimo, SAN
K.T. Turaki, SAN
Tayo Oyetibo, SAN
Chief Duro Adeyele, SAN
C.U. Ekomaru, SAN
J.N. Egwuonwu, Esq.
Chief Olusola Oke
Chief A.O. Ajana
Rotimi Ojo Esq.
Abdul lbrahim
M.M. Bakari
Ayodeji Olakunle Babaderino Esq.
Oladele Gbadeyan, Esq.
Abimbola Arowosebe (Mrs.)
U.M. Jawur, Esq.
Dayo Famakin-Johnson Esq.
N.N. Shaltha (Miss)
A.S. Akingbade, Esq.
Ngozi Udokwu (Miss)
Funmitayo Oshunwusi (Miss)
Chijioke Uwandu, Esq.
Ayo Babalola, Esq.
P.C. Igwenazor, Esq.
Chief Joe-Kyari Gadzama, SAN
Chief Amaechi Nwaiwu, SAN
Adebayo Adenipekun, SAN
Chief Bolaji Ayorinde, SAN
Abdul Ibrahim, Esq.
Arthur Obi Okafo, SAN
Garba Paul, Esq.
Yinka Orokoto, Esq.
Alhaji R.O. Yusuf
Ayodeji Olakunle Bobaderin Esq.
Mrs. J.O. Adesina
Magai Vimtim Magai, Esq.
E.S. Oluwabiyi, Esq.
A.C. Ozioko Esq.
Nneka Bon-Nwakanma (Mrs.)
Afam Asigwe. Esq.
C.P. Oli, Esq.
Chinyere Onyedim (Mrs.)
D.H. Bwala, Esq.
Ifeanyi Okechukwu Esq.
Ola Mafo, Esq.
J.M. Ugbeji (Miss)
I.H. Ngada, Esq.
Chuks Maduka, Esq. For Respondent
