PEOPLES DEMOCRATIC PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2011)LCN/5018(CA)
(2014) LPELR-22892(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/E/EPT/4/14
RATIO
PRELIMINARY OBJECTION: EFFECT OF A SUCCESSFUL PRELIMINARY OBJECTION; CIRCUMSTANCE UNDER WHICH A PRELIMINARY OBJECTION SHOULD NOT BE FILED
The Supreme Court had earlier made a pronouncement on this in S.P.D.C. Ltd V. Amadi (supra) when Rhodes Vivour JSC stated thus: “Preliminary objections are against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of appeal should be filed”. Accordingly, the notice of preliminary objection is hereby struck out for being incompetent. PER M.O. BOLAJI-YUSUFF, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 31(5) AND (6) OF THE ELECTORAL ACT
The entire controversy in this appeal centres on the provisions of Section 31(5) and (6) of the Electoral Act which reads: 31(5) provides that: “Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false; may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.” S. 31(6) provides: “If the court determines that any of the information contained in the affidavit or any document submitted by the candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.” The law is settled that where the language or wordings of a statute are very clear and unambiguous, the language and the wording should be given their ordinary grammatical meaning. I hold the view that the wordings of Section 31(5) and (6) are clear and unambiguous. There is nothing in Section 31(5) and (6) above to suggest even remotely that a conviction on criminal allegation must first be secured before any person who has a reasonable ground to believe that a candidate has given false information in the affidavit or any document submitted to INEC can approach the court for an order disqualifying the candidate from contesting the election. PER M.O. BOLAJI-YUSUFF, J.C.A.
QUALIFICATION/DISQUALIFICATION OF A CANDIDATE: CIRCUMSTANCE WHERE THE ISSUE OF QUALIFICATION, DISQUALIFICATION OR NON-QUALIFICATION OF A CANDIDATE TO CONTEST AN ELECTION WILL BE OUTSIDE THE AMBIT OF THE HIGH COURTS
It is my considered opinion therefore that the issue of qualification, disqualification or non-qualification of a candidate to contest an election (in this case, Governorship election is a matter which the High Courts and the Election Tribunal can handle but it is at the Election Tribunal that those grievances can be presented after election has taken place. I refer to the decision of the Supreme Court in Salim v. CPC (2013) 6 NWLR (Pt. 1351) 500. “In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT. PER M.O. BOLAJI-YUSUFF, J.C.A.
QUALIFICATION/DISQUALIFICATION OF A CANDIDATE: WHETHER AN ISSUE OF QUALIFICATION OF A CANDIDATE TO CONTEST AN ELECTION UNDER THE ELECTORAL ACT, 2010 (AS AMENDED) IS BOTH A PRE-ELECTION AND AN ELECTION MATTER WHICH BOTH THE HIGH COURTS AND THE ELECTION TRIBUNALS HAVE JURISDICTION TO HEAR AND DETERMINE
See also Dangana v. Usman (2013) 6 NWLR Pt 1349 page 50 at 89-90 where the Supreme Court held as follows: “Section 138(1)(a) of the Electoral Act, 2010 (as amended) provides inter alia, that an election may be questioned on the ground that a “person whose election is questioned was at the time of the election, not qualified to contest the election” With the above provision in view, it will be very unsafe to agree with the submission of learned senior counsel for the appellant that the issue involved in this case was strictly a pre-election matter in which an Election Tribunal has no jurisdiction to hear and determine and that only the right courts has jurisdiction to deal with the matter.” I do not agree that the matter envisaged in Section 138(1)(a) of the Electoral Act, 2010 (as amended),is a pre-election matter over which an election tribunal has no jurisdiction. I however agree that the qualification/disqualification to contest an election is both a pre-election and a post-election matter. However, in the instant case, section 138(1)(a) of the Electoral Act has clearly made the particular pre-election matter entertainable by an Election Tribunal by expressly making the issue of qualification of a candidate to contest an election a ground in an Election Petition challenging or questioning the return of the winner of the said election, I therefore hold the considered view that an issue of qualification of a candidate to contest an election under the Electoral Act, 2010 (as amended) is both a pre-election and an election matter which both the High Courts and the relevant Election Tribunals have Jurisdiction to hear and determine. PER M.O. BOLAJI-YUSUFF, J.C.A.
JUDGMENT AND ORDER – JUDGMENT IN REM: DEFINITION AND NATURE OF A JUDGMENT IN REM
I find it convenient at this stage to define a judgment in rem for the advantage of the Appellant. “A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title. Examples are judgment of a court over a will creating the status of administration. Judgment in a divorce by a court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence. Judgment in an election petition. The feature of a judgment in rem is that it binds all person whether a party to the proceedings or not. It stops anyone from raising the issue of the status of person or persons or things, or the rights or title to property litigated before a competent court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the court has by such judgment declared or made it to be. PER M.O. BOLAJI-YUSUFF, J.C.A.
JUDGMENT IN REM AND JUDGMENT IN PERSONAM: DISTINCTION BETWEEN JUDGMENT IN REM AND JUDGMENT IN PERSONAM
In Adesina Oke & Anor, V. Shittu Atoloye & Ors. (1986) 1 NWLR (Pt 15) page 241; this court quite recently considered the distinction between a judgment in rem and a judgment in pensonam when and where it is a solemn pronouncement upon the status of a particular subject matter. The term judgment in rem is clearly understood in law as a judgment of a court of competent jurisdiction determining the status of a person or thing or the disposition of a thing. That action which ends in such a judgment should be an action filed for the purpose of such determination – for example in a petition for Divorce a Decree of nullity or Divorce can be made. These decrees as to status. A judgment in a land case sequel to an action filed not for the purpose of determining the status of the contesting parties nor the status of the land but for determining the right or interest of the plaintiff of the defendant in the land the subject matter of the dispute. It simply decrees that as between the plaintiff and the defendant then before the court the land belongs to one party or the other since a judgment in rem is a judgment contra-mundum, binding on both parties and their privies also on non-parties, Oke vs. Atoloye (1986) 1 NWLR (PT. 241) is therefore authority (1) that the judgment in rem is an adjudication, Pronounced upon the status of a particular subject matter by a tribunal having competent authority for that purpose e.g. (a) A decree as to nationality (b) A decree of divorce (c) A decree of legitimacy that a judgment in rem is binding on all the world parties as well as non-parties. PER M.O. BOLAJI-YUSUFF, J.C.A.
Justice
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
M.O. BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER (ANAMBRA STATE)
3. THE RETURNING OFFICER (ANAMBRA STATE GOVERNORSHIP ELECTION)
PROF. JAMES EPOKE
4. THE ELECTORAL OFFICER
(Aguata Local Government Area)
5. THE ELECTORAL OFFICER
(Orumba North Local Government Area)
6. THE ELECTORAL OFFICER
(Orumba South Local Government Area)
7. THE ELECTORAL OFFICER
(Ekwusigo Local Government Area)
8. THE ELECTORAL OFFICER
(Ihiala Local Government Area)
9. THE ELECTORAL OFFICER
(Nnewi North Local Government Area)
10. THE ELECTORAL OFFICER
(Nnewi South Local Government Area)
11. THE ELECTORAL OFFICER
(Idemili North Local Government Area)
12. THE ELECTORAL OFFICER
(Idemili South Local Government Area)
13. THE ELECTORAL OFFICER
(Anaocha Local Government Area)
14. THE ELECTORAL OFFICER
(Njikoka Local Government Area)
15. THE ELECTORAL OFFICER
(Dunukofia Local Government Area)
16. THE ELECTORAL OFFICER
(Awka South Local Government Area)
17. THE ELECTORAL OFFICER
(Awka North Local Government Area)
18. THE ELECTORAL OFFICER
(Onitsha North Local Government Area)
19. THE ELECTORAL OFFICER
(Onitsha South Local Government Area)
20. THE ELECTORAL OFFICER
(Ogbaru Local Government Area)
21. THE ELECTORAL OFFICER
(Oyi Local Government Area)
22. THE ELECTORAL OFFICER
(Ayamelu Local Government Area)
23. THE ELECTORAL OFFICER
(Anambra East Local Government Area)
24. THE ELECTORAL OFFICER
(Anambra West Local Government Area)
25. CHIEF WILLY MADUABUCHI OBIANO
26. ALL PROGRESSIVES GRAND ALLIANCE (APGA)Respondent(s)
M.O. BOLAJI-YUSUFF, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the ruling delivered at the Governorship Election Tribunal, Anambra State sitting at Awka on 28th February,2013.
The Respondents in their respective applications had raised preliminary objection to some paragraphs of the petition on the grounds that the averments therein are election matters which are within the exclusive jurisdiction of the High Court, that some are caught by the doctrine of estoppels, some are vague and nebulous while some paragraphs contain allegations against persons who are not made parties to the petition. The tribunal in a considered ruling upheld the objection and struck out some paragraphs on pages 6,27-28, 32 and 33 of the petition.
The petitioner, now the appellant dissatisfied with that ruling filed 9 grounds of appeal which, shorn of the particulars are as follows:
Ground 1
That learned Chairman and members of the Tribunal erred in law and thereby occasioned a miscarriage of Justice,when they held that the issue of qualification under Section 31(5) and (6) of the Electoral Act 2010 (as amended) is a pre-election matter for which only the Federal and/or State High Courts have jurisdiction.
Ground 2
The Honourable Tribunal erred in law and came to a wrong decision which occasioned a miscarriage of Justice when it held:
“And finally on the issue, there is nothing anywhere in the pleadings of the petition to show possibility of reliance on any prepared charge or record of conviction and subsequent disqualification to warrant the sustenance of the paragraphs in issue, we thus agree with the Applicants as to the non- Justice ability of the paragraphs worthy only of being struck out. The issues raised for determination in this contest are resolved in favour of the Applicants. Paragraphs A(1) – m is hereby struck out, so paragraphs 1(k) at page 6 of the petition and where ever such appeal in the petition.”
Ground 3
The Honourable Tribunal erred in law and came to a wrong decision which occasioned a miscarriage of Justice when it sought to distinguish the case of DANGANA V. USMAN from the facts of this petition and to hold that it is only constitutional qualification that is covered by Section 138(1) of the Electoral Act 2010 (as amended).
Ground 4
The Learned Chairman and members of the Tribunal erred in law and thereby occasioned a miscarriage of Justice when they struck out the paragraphs of the Appellant petition touching on multiple registration and/or supplying false information to INEC by the 25th Respondent on the ground that they constitute abuse of Court’s process same having been litigated in Exhibit ‘A’-Suit No. OT/140/2013 Oli V. Obiano and thus been res judicata.
Ground 5
The Learned Chairman and members of the Tribunal erred in law and thereby occasioned a miscarriage of Justice when they struck out paragraphs a(a) – (f) and 5(a) of the Appellants petition on the grounds that they are imprecise and/or vague.
Ground 6
The Honourable Tribunal erred in law and thereby occasioned a miscarriage of Justice when it held:
“That paragraph 5(c)(i), (ii) & (iii) at pages 32 of the petition and 5(g) at page 33 where allegation of criminality was levied against named and unnamed persons who were not made parties to this petition, we agree are liable to be struck out. The reason is simple and as submitted.
The right of persons accused of crime to fair hearing is already defeated by the non-joinder.
Another factor is the need to know whether the persons truly exist or they are merely within the figment of the imaginations of those making the accusation or allegation of crimes. This paragraph is hereby struck out as prayed”.
Ground 7
The Honourable Tribunal erred in law when it failed to consider and evaluate the submissions of the Appellant in opposition to the Respondents’ application and consequently breached the Appellant’s right to fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Ground 8
The Honourable Tribunal misdirected itself in law and thereby came to a wrong decision which occasioned a miscarriage of Justice when it ascribed to the Appellant as having relied on the case of JANG V. DARIYE in its holding: page 8 – 9.
Ground 9
The Learned Chairman and members of the Tribunal misdirected themselves in law when they proceeded to hear and determine interlocutory application to strike out paragraphs of the petition instead of deferring arguments on them to be taken with the final address as enjoined by the Supreme Court in BELGORE V. AHMED (2013) 8 NWLR (Pt. 1335) 60 and PDP V. INEC (2012) 7 NWLR (Pt 1300) 538.
In his brief of argument, the appellants counsel abandoned grounds 8 and 9 of the appeal and they are hereby struck out.
He formulated the following six (6) issues for determination:
1) Whether the issue of qualification under section 31(5) and (6) of the Electoral Act 2010 (as amended) is a pre-election matter and whether there is a need for prior proceedings and/or conviction in a Court of law, criminal or otherwise, before a complaint can be founded on the said Section 31(5) and (6) in an election petition. (Encompassing Grounds 1 and 2 of the Notice of Appeal).
2) Whether Section 138(1) of the Electoral Act 2010 (as amended) which makes qualification a ground for an election petition differentiate between constitutional disqualification and Electoral Act disqualification. (Based on Ground 3 of the Notice of Appeal).
3) Whether the Appellant is precluded from raising the issue of the failure of the 25th Respondent to disclose in his Independent National Electoral Commission (INEC) (1st Respondent’s) gubernatorial nomination Forms that he had multiple voter’s cards on the ground of res judicata founded on Exhibit ‘A’- Suit No: OT/140/2013 Oli V. Obiano (Based on Ground 4 of the Notice of Appeal).
4) Whether paragraphs 4(a) – (f) and 5(a) of the Appellant’s petition is imprecise, vague or lack necessary particulars, (Encompassing Ground 5 of the Notice of Appeal).
5) Whether the mere allegation of electoral offence against a person makes him a necessary party in an election petition (Based on Ground 6 of the Notice of Appeal).
6) Whether the failure of the Honourable Tribunal to evaluate and consider the submissions of the Appellant in opposition to the Respondents’ applications does not amount to the breach of the Appellant’s right to fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended) (Encompassing Ground 7 of the Notice of Appeal).
On issues 1 and 2 which relate to the provisions of Section 31(5) and (6) of the Electoral Act, 2010 (as amended), counsel contended that the jurisdiction of the Election Tribunal is derived from Section 285 (2) of the 1999 Constitution (as amended) and Section 133 (1) of the Electoral Act, 2010 (as amended) which must be read together. He submitted that where an election has been conducted and an aggrieved candidate seeks nullification of the election on any of the grounds set out in Section 138 of the Electoral Act, the Election Tribunal is the only forum to ventilate that grievance, he referred to ANPP V. PDP (2006) 17 NWLR of 1009 page 467 at 486-487 (H-A), Onakum V. Agbaso (2010) 19 NWLR Pt. 226 page 172 at 239, Amaechi V. INEC (2008) 5 NWLR Pt. 1080 page 227 at 320 (C-D). He contended that on matters of qualification or non-qualification of a candidate in an election, the jurisdiction of the High Court does not and cannot exclude the jurisdiction vested in the Election Tribunal under Section 285(2) of the Constitution and Section 133(1) of the Electoral Act (as amended). He referred to Dangana V. Usman (2013) 6 NWLR Pt. 1349 page 50 at 89-90 (D-D), Salim V. C.P.C. (2013) 6 NWLR Pt. 1351 page 501 at 524-525, Hassan V. Aliyu (2010) 17 NWLR Pt. 223 page 547, this court’s judgment in Suit No. CA/A/EPT/582/2011, Aidoko Atai V. Ocheja delivered on 13th December, 2011 and PDP v. Daniel Sarrost & ors, SC/381/2011 and SC/383/2011 delivered on 28th November, 2011 per Dahiru Mudsapher, CJN. He finally submitted on this issue that the Tribunal was wrong to hold that the issue of qualification under Section 31(5) and (6) of the Electoral Act, 2010 (as amended) is a pre-election matter upon which a conviction ought to have been secured before it could be invoked in an Election Petition.
On issue 3 which is on the effect of the judgment delivered by the court in suit no. OT/140/2013, Oli V. Obiano, Counsel submitted that a judgment is not res judicata if the conditions for its application do not co-exist, he referred to Makuri V. F.U.T Minna (2011) 18 NWLR Pt. 1278 page 221-222, he urged the Court to hold that the judgment does not constitute res judicata.
On issue 4 which is whether the Tribunal was right in striking out paragraphs 4(a)-(f) and 5(a) of the petition for being imprecise and vague, counsel submitted that if those paragraphs were vague, it would have been difficult for the respondents to respond to what is vague, generic and nebulous. The fact that they were able to respond to those paragraphs defeated their complaint.
On issue 5 which is whether mere allegations of electoral offences against a person makes him a necessary party in an election petition. Counsel submitted that the parties to an election petition are as stated in Section 137(1), (2) and (3) of the Electoral Act, 2010 (as amended). He further submitted that election petition being sui generis, no other law apart from the statutory provision which stipulated the parties to an election is applicable in determining the necessary parties to a petition, he referred to Okonkwo V. Ngige (2006) 8 NWLR Pt. 981 page 119 at 135 (G-H), PDP V. Abubakar (2004) 16 NWLR Pt. 900 page 455 at 468 (A-B), Obasanjo V. Buhari (2003) 17 NWLR Pt. 850 page 510 at 562. He submitted that where allegations are made against agents of a disclosed principal in the conduct of an election, the principal can be joined as a respondent to an election petition, he referred to Buhari V. Obasanjo & Ors (2005) 2 NWLR Pt. 910 Page 241, Buhari V. Yusuf (2003) 14 NWLR Pt. 541 page 446, Audu V. INEC (No.2) (2010) 13 NWLR Pt. 1212 page 456 at 544-545 (C-A).
On issue 6 which alleges that the tribunal denied the applicant fair hearing, counsel submitted that the tribunal erred in law and breached the appellant’s right to fair hearing when it failed to evaluate and consider the submissions of the appellant while the tribunal dwelt on the case and submissions of the respondents, he urged the court to set aside the decision of the tribunal.
The 1st-24th respondent’s counsel raised four issues in his brief, the 25th and 26th respondents counsel filed separate briefs in which they also raised four issues. The issues raised in the three separate briefs filed by the respondents’ counsel are similar.
The issues are:
1) Whether the learned Judges of the Tribunal were correct when they held that the issue of disqualification as presented by the Appellant was a pre-election matter by virtue of Section 31(5) and (6) of the Electoral Act 2010.
2) Whether the learned judges of the Tribunal were correct when they struck out paragraphs 4(a)-(f) and 5(a) of the Petition for being imprecise and/or vague.
3) Whether the learned judges of the Tribunal were correct when they struck out paragraphs 5(c)(i),(ii) and (iii) at page 32 of the petition and 5(g) at page 33 of the petition for embodying allegations of commission of crimes against persons who were not joined.
4) Whether the learned judges of the tribunal denied the Appellant the right of fair hearing in the consideration of the submissions made in the application before it.
On issue 1, counsel submitted that the only ground of qualification that is both pre-election and post election and can be pursued pursuant to Section 138(1) of the Electoral Act (as amended) is the Constitutional qualification in Sections 177 and 182 of the Constitution. The issue of multiple registration and giving of false information to INEC being a pre-election matter, only the High Court is clothed with the jurisdiction to adjudicate on it by virtue of Section 31(6) of the Electoral Act 2010 (as amended). They referred to Kolawole V. Folusho (2009)8 NWLR Pt. 1143 page 338 at 387-388 (F-C), Jana V. Dariye (2003) 15 NWLR Pt. 843 page 436 at 460, APGA V. UBA (2012) 11 NWLR Pt 1311 page 325 at 355 (A-D). They further submitted that the judgment delivered by the High Court in suit No. OT/140/2013″ Oli V. Chief Willie M. Obiano & Anor is a judgment in Rem which attaches to the status of the subject matter and reigns supreme over the qualification of the 25th respondent especially on all matters directly or indirectly related to the allegation of multiple registration by the 25th respondent. They referred to Akinwumi V. Sadia (1997) 8 NWLR Pt. 516 page 277, Oke V. Atoloye (1986) 1 SC 316 at 338, Ogboru v. Uduaghan (2011) 17 NWLR Pt 1277 page 264 (E-H). They submitted that the Tribunal was right to hold that the paragraphs wherein the appellants sought to litigate the issue of qualification and non qualification of the 25th respondents and the facts alleged therein are incompetent.
On issue 2 which is whether the tribunal was right in striking out paragraphs 4(a-) and 5(a-m) of the petition for being imprecise and/or vague, the respondents’ counsel submitted that the allegations made by the appellant in those paragraphs were not tied to any polling unit. Without clarifying those allegations, the respondent will not be in a position to answer to the allegations. They further submitted that it was the duty of the appellant to plead particulars of those units, wards and local government areas where it alleged that new or additional polling units were created, they referred to Order 13 Rule 4(4) of the Federal High Court (Civil Procedure) Rules, 2009, Belgore V. Ahmed (2013) 8 NWLR Pt. 1355 page 60 at 95-96, PDP V. INEC (2012) 7 NWLR Pt. 1300 page 538 at 560.
On issue No. 3 which is whether the tribunal was right in striking out some paragraphs of the petition which made allegations of crime against identified individual persons who were not joined to the petition, they submitted that the tribunal was right in striking out those paragraphs as it will be most inappropriate to proceed with the petition as it was and for evidence of commission of crimes to be received against persons who are not made parties to the petition, they relied on Kalu vs Chukwumerije (2012) 12 NWLR Pt. 1315 page 425 at 459 (C-F), Bwacha Vs Ikenya (2011) 3 NWLR Pt. 1235 page 610.
On issue 4 which is whether the tribunal denied the appellant its right to fair hearing by failing to consider the submissions of the appellant’s counsel, counsel referred to page 404 of the record which contains a passage from the tribunal’s ruling and submitted that it is unfair to contend that the appellant’s submissions were not taken into consideration. They submitted that a judge is not bound to reproduce all the contentions of the parties in a ruling or judgment. All he is mandated to do is to present a judgment that shows a consideration of the respective positions of the parties on matters on which issues were joined. Where that is done, as in this case, the appellate Court will not make a practice of interfering with the decision, they referred to UBA v. Ogundokun (2009) 6 NWLR Pt. 1138 page 450 at 492. They urged the court to dismiss the petition.
25th Respondent’s counsel filed a notice of preliminary objection.
The Notice of Preliminary Objection which is as follows:
i. Ground 4 of the Grounds of Appeal is incompetent and ought to be struck out in that it is not the decision of the Tribunal appealed against.
ii. Issue 4 of the Appellant’s Brief of Argument ought to be struck out for being based on the incompetent Ground 4.
Counsel incorporated his argument in respect of objection in his Brief of Argument. In respect of the objection he submitted that it is trite that a ground of appeal must attack the ratio decidendi of a case and must not comprise of the appellant’s conception of what was decided by the Tribunal. It must be based entirely on what was actually decided. He contended that the basis on which the Tribunal struck out the paragraphs of the appellant’s petition on giving false information and multiple registration is Section 31(5) and (6) of the Electoral Act, 2010 (as amended) and not that the paragraphs constitute abuse of process having been litigated upon as is being alleged by ground 4 of the appeal.
The Appellant’s counsel also incorporated his response to the objection in his reply brief to the 25th Respondent’s brief of Argument. In respect of the objection, the appellant’s counsel submitted that it is wrong to file a notice of preliminary objection to challenge only one ground of appeal when there are other grounds which can sustain the appeal. He further submitted that the proper procedure is by a motion on notice praying the court for an order to strike out the defective ground of appeal. He referred to S.P.D.C vs. Amadi (2011) 14 NWLR Pt. and this Court’s judgment in Suit No. CA/AK/EPT/GOV/07/13. He stated that issue 4 is based on ground 5 not ground 4. He further submitted that ground 4 raises the issue of res judicata which was the basis of the tribunal’s decision. He urged the court to dismiss the 25th respondent’s objection.
The objection by the 25th respondent is in respect of only one out of the seven (7) grounds of appeal left after the withdrawal of grounds 8 and 9 of the appeal. I agree with the appellant’s counsel that since the notice of preliminary objection is not directed at the entire appeal or aim at terminating it, the notice of preliminary objection is incompetent, see the decision of this court in Oluwarohuni Akenedolu & Anor V. Rahman Mimiko & 2 ors, Appeal No. CA/AK/EPT/GOV/07/13 delivered on 1st July, 2013.
The Supreme Court had earlier made a pronouncement on this in S.P.D.C. Ltd V. Amadi (supra) when Rhodes Vivour JSC stated thus:
“Preliminary objections are against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of appeal should be filed”.
Accordingly, the notice of preliminary objection is hereby struck out for being incompetent.
Now to the substantive appeal, I have considered the grounds of appeal excluding ground 8 and 9 already struck out and the issues formulated by counsel in their respective briefs, I find the issues formulated by the appellant’s counsel to be more comprehensive and will therefore resolve this appeal based on those issues whether there is a need for prior proceedings and/or conviction in a court of law before a complaint can be founded on Section 31(5) and (6) of the petition.
The entire controversy in this appeal centres on the provisions of Section 31(5) and (6) of the Electoral Act which reads:
31(5) provides that:
“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false; may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
S. 31(6) provides:
“If the court determines that any of the information contained in the affidavit or any document submitted by the candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.”
The law is settled that where the language or wordings of a statute are very clear and unambiguous, the language and the wording should be given their ordinary grammatical meaning. I hold the view that the wordings of Section 31(5) and (6) are clear and unambiguous. There is nothing in Section 31(5) and (6) above to suggest even remotely that a conviction on criminal allegation must first be secured before any person who has a reasonable ground to believe that a candidate has given false information in the affidavit or any document submitted to INEC can approach the court for an order disqualifying the candidate from contesting the election.
The information which is reasonably believed to be false may or may not relate to a criminal matter. No doubt,the allegation of multiple registration and giving false information being made against the 25th respondent amount to offences under Section 12,24 and 117 of the Electoral Act. There is no doubt that the allegation that the 25th respondent gave false information about his registration status in his affidavit submitted to INEC is one for which the appellant could have approached the High Court for an order disqualifying the 25th respondent from contesting the election. However, I hold the view that failure to obtain a court order disqualifying the 25th respondent before the election is not a bar to a presentation of a Petition to the Election Tribunal on the same facts. By virtue of the provisions of Section 149 of the Electoral Act, 2010 (as amended), it is not the intention of the legislative that a conviction must first be secured before a Petitioner can present a petition on facts constituting an offence under the Electoral Act. If it were so, the provisions of Section 149 of the Act which empowers the Tribunal to make a recommendation for the prosecution of an offence disclosed in any petition would not have been inserted in the Act. For understanding of what I am saying, I reproduce here the provisions of Section 149 of the Electoral Act 2010 (as amended), it reads:
“149. The Commission shall consider any recommendation made to it by a tribunal with respect to the prosecution by it or any person for an offence disclosed in any election petition.”
What I am saying in essence is that facts which constitutes an offence under the Electoral Act and which touches the qualification of a candidate cannot be classified as a pre-election matter over which the High Court has exclusive jurisdiction. The Tribunal was therefore wrong in striking out paragraphs which stated the facts of the alleged multiple registration for being a pre-election matter.
Issue 1 is resolved in favour of the appellant.
Issue 2 is whether the provisions of Section 138 (1) of the Electoral Act which stipulates that an election may be questioned on the ground that a person whose election is questioned was at the time of the election, not qualified to contest the election differentiates between disqualification or qualification under the Constitution and disqualification or qualification under the Electoral Act.
S. 285(2) of the FRN Constitution 1999 (as amended), establishes the governorship and legislative House Election Tribunal and conferred on it original jurisdiction to hear and determine an Election Petition as to whether any person has been validly elected to the office of governor.
As regards the Electoral Act 2010 (as amended),provisions listed below are germane to the controversy in this appeal:
1) S. 133(1) of the Electoral Act 2010 (as amended)on proceedings to question an election.
2) S. 138 (1) (a) (b) (c) (d) of the Electoral Act 2010 (as amended),on grounds of Petition.
3) S. 31(5) (6) of the Electoral Act 2010 (as amended).
By the provisions of Sub-section (5) and (6) of Section 31 of the Electoral Act, any person who believes that information given by a candidate to INEC is false is free to approach the court to seek declaration to that effect and if the court comes to this conclusion, would by an order disqualify that candidate. To this extent it is correct and I agree with counsel to the Respondents that the issue of qualification or disqualification of a candidate is matter over which the High Court can exercise jurisdiction being a pre-election matter. See Kolawole v. Fulusho (2009) 8 NWLR (Pt 1143) 338 387-388. However the facts that the Electoral Act and paragraph 1 to the 2nd schedule thereto was enacted pursuant to Section 4(1),(2) and (3) of the 1999 Constitution (as amended) which empowers the National Assembly to make laws for the peace, order and good government of the Federation. Therefore the Provisions of the Electoral Act cannot run parallel to those of the Constitution of Federal Republic of Nigeria 1999 as amended. Rather, the Provisions of the Electoral Act are meant to complement the Constitution hence the same (Electoral Act 2010, as amended) must be read together with the Provisions of the Constitution.
Section 285 (2) of the 1999 Constitution of Federal Republic of Nigeria (as amended) which confers original jurisdiction on Election Tribunal to hear and determine an election Petition also allows any person who participated in an election and who believes that a candidate has not been validly elected to approach the Tribunal for redress. See Ohakim V. Agboso (2010) 19 NWLR (Pt. 1226) 72, 231.
This provision in my view is the leeway given to the person who reasonably believes that a candidate was not validly elected to go straight to Election Tribunal and ventilate his grievances against such candidate withstanding that he had elected not to explore Provisions of S.31 (5) and (6) of the Electoral Act 2010 (as amended) before the election.
It is my considered opinion therefore that the issue of qualification, disqualification or non-qualification of a candidate to contest an election (in this case, Governorship election is a matter which the High Courts and the Election Tribunal can handle but it is at the Election Tribunal that those grievances can be presented after election has taken place. I refer to the decision of the Supreme Court in Salim v. CPC (2013) 6 NWLR (Pt. 1351) 500.
“In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT.”
See also Dangana v. Usman (2013) 6 NWLR Pt 1349 page 50 at 89-90 where the Supreme Court held as follows:
“Section 138(1)(a) of the Electoral Act, 2010 (as amended) provides inter alia, that an election may be questioned on the ground that a “person whose election is questioned was at the time of the election, not qualified to contest the election”
With the above provision in view, it will be very unsafe to agree with the submission of learned senior counsel for the appellant that the issue involved in this case was strictly a pre-election matter in which an Election Tribunal has no jurisdiction to hear and determine and that only the right courts has jurisdiction to deal with the matter.”
I do not agree that the matter envisaged in Section 138(1)(a) of the Electoral Act, 2010 (as amended),is a pre-election matter over which an election tribunal has no jurisdiction. I however agree that the qualification/disqualification to contest an election is both a pre-election and a post-election matter.
However, in the instant case, section 138(1)(a) of the Electoral Act has clearly made the particular pre-election matter entertainable by an Election Tribunal by expressly making the issue of qualification of a candidate to contest an election a ground in an Election Petition challenging or questioning the return of the winner of the said election, I therefore hold the considered view that an issue of qualification of a candidate to contest an election under the Electoral Act, 2010 (as amended) is both a pre-election and an election matter which both the High Courts and the relevant Election Tribunals have Jurisdiction to hear and determine.”
In view of the clear and firm pronouncements of the Apex Court and which by the age long principle of stare decisis binds this court, the contention of the learned counsel for the Respondents that the only ground of qualification that is both pre-election and post election and which can be pursued pursuant to Section 138 (1) of the Electoral Act is Constitutional qualifications in Sections 177 and 182 of the Constitution cannot stand. If there is still any doubt as to whether an Election Petition under Section 138(1) of the Electoral Act must relate to or be traceable to the Constitution only, the controversy was laid to rest in P.D.P. Vs Daniel Sarror & ors Suit No SC/381 and SC/383/2011 where his Lordship Dahuru Musdapher CJN (as he then was) in his lead judgment delivered on 28th November 2011 with a full panel of the court comprising seven (7) Justices of the court held as follows:
“In my view, there is no dispute whatever that the Tribunal can deal with the issue of the qualification of a candidate to contest the particular election and it does not matter whether the impediment is constitutional or otherwise. To dismiss the petition at that stage without hearing evidence against the clear wording of Section 138 (1) of the Electoral Act is clearly wrong.”
The issue of qualification of a candidate to contest an election is clearly within the jurisdiction of the Tribunal. These appeals are dismissed. The matter remitted to the Tribunal and there to be decided on the evidence since it is not a pre-election matter.
Issue 2 is resolved in favour of the appellant.
Issue 3 is whether the appellant is precluded from raising the issue of multiple registration or possession of multiple voter’s card on the ground that suit No. OT/140/2013 Oli v. Obiano constitutes res judicata. The 26th respondent’s counsel contended that the above judgment which decided the issue of multiple registration and the qualification of the 25th respondents to contest the election is a judgment in rem and it binds the whole world, he referred to Ogboru v. Uduaghan (2011) 17 NWLR Pt. 1277 at 264 (E-H) where Adekeye JSC defined a judgment in rem as follows:
“I find it convenient at this stage to define a judgment in rem for the advantage of the Appellant.
“A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title.
Examples are judgment of a court over a will creating the status of administration.
Judgment in a divorce by a court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence.
Judgment in an election petition. The feature of a judgment in rem is that it binds all person whether a party to the proceedings or not. It stops anyone from raising the issue of the status of person or persons or things, or the rights or title to property litigated before a competent court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the court has by such judgment declared or made it to be”
And Sosan v. Ademuyiwa (1986) 3 NWLR pt. 27 page 241 at 251-252 where Oputa JSC stated the distinction between a judgment in rem and a judgment in personam as follows:
“In Adesina Oke & Anor, V. Shittu Atoloye & Ors. (1986) 1 NWLR (Pt 15) page 241; this court quite recently considered the distinction between a judgment in rem and a judgment in pensonam when and where it is a solemn pronouncement upon the status of a particular subject matter. The term judgment in rem is clearly understood in law as a judgment of a court of competent jurisdiction determining the status of a person or thing or the disposition of a thing. That action which ends in such a judgment should be an action filed for the purpose of such determination – for example in a petition for Divorce a Decree of nullity or Divorce can be made. These decrees as to status. A judgment in a land case sequel to an action filed not for the purpose of determining the status of the contesting parties nor the status of the land but for determining the right or interest of the plaintiff of the defendant in the land the subject matter of the dispute.
It simply decrees that as between the plaintiff and the defendant then before the court the land belongs to one party or the other since a judgment in rem is a judgment contra-mundum, binding on both parties and their privies also on non-parties, Oke vs. Atoloye (1986) 1 NWLR (PT. 241) is therefore authority (1) that the judgment in rem is an adjudication, Pronounced upon the status of a particular subject matter by a tribunal having competent authority for that purpose e.g.
(a) A decree as to nationality
(b) A decree of divorce
(c) A decree of legitimacy
that a judgment in rem is binding on all the world parties as well as non-parties”
The Tribunal on page 14 of its ruling (see page 410 of the record) upheld the contention of the 25th respondent’s counsel and held that the judgment “relates to the status of the 25th respondent being a judgment in rem”. The Tribunal also held that it cannot sit on appeal over the decision of the High Court neither can there be a re-litigation on the issue I have carefully examined the judgment in relation to the principle of res judicata and judgment in rem.
First, the identity of the plaintiff who instituted that suit has not been disclosed anywhere on the record before this Court.
Secondly, there is nothing on record to show that the plaintiff in that suit had any interest in the subject matter. Thirdly, the 25th respondent who was the defendant in that case stated categorically that the plaintiff who instituted that action was a busy body, he was not a card carrying member of the 25th respondent’s party and he is not a registered voter. The question is this can a judgment given against or even in favour of a party who has no interest in a subject matter and who was described as a busy body operate as a judgment in rem to preclude a person who has interest in that subject matter from seeking redress if he has a grievance. My answer is No. Principles of law do not operate in vacuo; An application of a principle of law must take into consideration the peculiar facts and circumstances disclosed in a particular case. I am of the firm view that on the facts and circumstances of this case and the case under contention, upholding the contention that the judgment in OT/140/2013 operates as a judgment in rem to bind the whole world including the appellant in this case who was a candidate at the election under contention will be a blind application of the principle of estoppel. The end result will be nothing but in Justice which can not nurture our nascent democracy. In my view the Tribunal was wrong in coming to the conclusion that the judgment is a judgment in rem which precludes the appellant from presenting his petition on those facts. The decision of the tribunal cannot be allowed to stand. Accordingly Issue 3 is resolved in favour of the appellant.
Issue 4 is whether the pleadings in paragraphs 4 (a)-(f) and 5(a) of the petition is imprecise, vague and lack necessary particulars. Those paragraphs read:
a. The petitioner and its candidate relied upon and restricted themselves and their agents to the number so stated in that letter which was signed by Prof. (Pastor) C.E. Onukaogu) as the Resident Electoral Commissioner. Certified copy of the letter is pleaded.
b. The 1st Respondent turned summersault and announced on the Election day that it has created 1,900 additional polling units called polling points. No opportunity was afforded the petitioners candidate to appoint any agents for those new polling units, or to prepare at all for election in these additional polling units. The 25th and 26th Respondents took advantage of this and field its agents in those additional polling points to the effect that whereas the petitioner and its candidates prepared and appointed agents for 4608 polling units, the 1st Respondents conducted election in 6,581 voting points (polling units) to the benefit of the 25th and 26th Respondents. The INEC “Analysis of Voting Points” reflecting 6,581 voting Points is pleaded.
c. A polling unit or voting point on the average accommodates as much as 500 registered voters such that if all the registered voters voted in those units for one candidate, that candidate will score at least 950,000 votes.
d. The total votes published as scored by the 25th and 26th respondents in that election is 180,178 votes. The total number of voters registered in Anambra State at the completion of the 2011 voter registration exercise is 2,011,796 but INEC claims to have carried out various stages of cleanup on the Register of voters since then.
e. The 1st respondent conducted elections in those units without publishing the particulars or identities of those new units to the petitioner or its candidate. Certified copy of the 1st respondent’s documents relating to the said additional units are pleaded. INEC did not publish the particulars of the cleanup exercise carried out on the Register of voters.
f. If the petitioner knew about these additional units in due time and mobilized/sensitized the voters the result of the election will not be what it is as Published.
I have considered the above averments. The averments in my view are concise and to the point. The paragraphs are not vague and imprecise. The averments in this case are different from the averments in Belgore V. Ahmed (supra).
It is one thing to aver and plead certain facts, it is another thing to lead evidence in proof. I do not think it is proper at this stage to shut out the Petitioner. Pleadings are but the foundation of the case put up by the litigant. If that foundation is destroyed at the very beginning, on account of technicalities the case of the litigant would also have been crushed at that early stage, hence a denial of fair hearing.
Secondly it is settled law that in order to get the gist of a case being presented by a party, the entire pleadings must be read together, no paragraph of the pleading should be read in isolation. If those paragraphs are read together with other paragraphs of the pleading, it is clear that a conclusion that those paragraphs are vague and imprecise cannot be correct.
Issue 4 is resolved in favour of the appellant.
Issue 5 is whether a mere allegation of an electoral offence against a person makes him a necessary party in an Election Petition. The reason adduced by the Tribunal in striking out the relevant paragraphs is that to proceed to hear the case in their absence would be a denial of fair hearing; hence it was safe to strike out those Paragraphs.
I have reviewed the laws and authorities cited by counsel.
To start with, I will refer to S.137 (1), (2) and (3) of the Electoral Act 2010 (as amended). By those provisions, it is clear who the parties are in an Election Tribunal; they are
(a) a Candidate in an election.
(b) The political party which participated in the election
(c) The person whose election is complained i.e. the Respondent
(d) Independent National Electoral Commission (INEC).
The authorities are legion:
Okonkwo v. Ngige (2006) 8 NWLR (Pt. 981) 119, 135; PDP vs. Abubakar (2004) 16 NWLR (Pt. 900) 455, 468; Obasanjo v. Buhari (2003) 17 NWLR (Pt. 850) 510, 562 are to the effect that it is only persons or bodies whom the Electoral Act has specified that can be made parties to Election Petition.
This undoubtedly excludes those persons against whom allegation is made in the Petition. Bearing in mind that Election Petition cases are sui generis, its concern is to hear Election matters only as it lack jurisdiction to try any person for any of the electoral offences. That function or duty is reserved for the court. See S.150 (i) of the Electoral Act. Therefore the lower tribunal misconceived issues and the proper application of the principle of fair hearing.
I agree with the appellant’s counsel that what is at stake is whether the conduct of the persons who the 1st, 25th and 26th respondents allegedly used and colluded with affected the conduct of the election, it is not about the guilt of those persons. Once the principals who are alleged to have used and or colluded with those persons and who are statutory parties to an election petition are joined, non-joinder of those who are merely mentioned in the petition should not defeat the Petition. The 1st, 25th and 26th respondents are deemed to be defending the petition for themselves and on behalf of their alleged agents and it is for them to say at trial whether those persons are actually their agents. I hold a firm view that the appellant’s petition can be effectively determined without the presence of those mentioned. Those mentioned in the petition are not on trial for any offence. Therefore, the Tribunal was wrong when it held that the right of those persons mentioned to fair hearing is defeated by the non-joinder. This issue is resolved in favour of the appellant. Paragraph 5(c) (i), (ii) and (iii) of the Petition by the Tribunal is hereby restored.
Issue 6 is on the alleged failure of the Tribunal to consider the submissions of the appellant in opposition to the respondents’ applications. I have carefully perused the ruling of the Tribunal on pages 397-412 of the record particularly pages 404, 408-409, it clearly show allegation of denial of hearing is absolutely unfounded. The Tribunal stated the submissions of counsel to both parties and moved on to state what they understand the law to be. I agree with the respondent’s counsel that denial of fair hearing being an allegation of constitutional infraction is indeed a very serious matter. The practice of counsel trumpeting up an allegation of denial of fair hearing without the slightest justification deserve serious condemnation. Issue 6 is hereby resolved against the appellant.
For the above reasons, this appeal except issue 6 succeeds and I hereby restore all the grounds of the petition which were struck out by the Tribunal.
Cost of N50, 000.00 awarded to the Appellant against the Respondents.
ABUBAKAR JEGA ABDULKADIR, J.C.A: I Agree.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A: I have the privilege of reading in advance the judgment just delivered by my Noble Lord, M.O. BOLAJI – YUSUFF, JCA.
I agree with the said judgment.
EMMANUEL AKOMAYE AGIM J.C.A: I had a preview of the judgment just delivered by my learned sister, M.O. BOLAJI-YUSUFF, JCA. I agree with the reasoning and conclusions therein. I also agree with the orders made therein.
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Appearances
Chief A.O. Ajana with Clement EzikaFor Appellant
AND
Ahmed Raji (SAN) with O. Nwoye, A Ogunleye, A. Avosanyi, K. Olojo and N. Nobis Elendu for the 1st to 24th Respondents.
Dr. N. Ikpeazu (SAN) with Vera Okonkwo (Miss) and C.E. Anyigbo for the 25th Respondent.
O.J. Nnadi (SAN) with C.N. Abiakam (Mrs.) and A.U. Obidiegwu for the 26th Respondents.For Respondent
