CHARLES EHIGIE AIRHIAVBERE V. COMRADE ADAMS ALIYU OSHIOMHOLE & ORS
(2012)LCN/5661(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2012
CA/B/EPT/288/2012
RATIO
“Similarly, section 182(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes ample provisions for the disqualification of persons seeking to contest election for the office of Governor of a State. Specifically, section 182(1) (J) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows: 182(1) No person shall be qualified for election to the office of Governor of a State if – (j) he has presented a forged certificate to the Independent National Electoral Commission We must note that S.138(1) (a) of the Electoral Act 2010 (as amended) provides as follows: 138 (1) An election may be questioned on any of the following grounds: that is to say – a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election; At paragraph 12(iv) of his petition at page 3 of the record of appeal, the Appellant averred as follows:- 12 Your Petitioners states that the facts supporting the grounds of this petition are as follows: (iv) The 1st Respondent who was purportedly returned as the winner of the said election was not qualified to contest for the said election for the office of the Governor of Edo State. Further, at paragraphs 24 and 25 of the petition at page 12 of the record of appeal, the Appellant averred as follows:- 24 Your Petitioners aver that the 1st Respondent is not qualified to contest the said Governorship election in Edo State having not met the minimum qualification to contest for the said office of Governor of Edo State as provided for in the 2010 Electoral Act (as amended).” 25 Your Petitioners further aver that there is no nexus between the 1st Respondent and the academic qualifications he presented as his qualification. The Petitioners shall found and rely on Certificate True Copies of these qualification at the trial of the petition especially as depicted in FORM CF.001 submitted to the 3rd Respondent in 2007 and 2012 by the 1st Respondent. I agree with the reasoning that the wordings of S. 31(5) & (6) are not peremptory but permissive. They are set out below: “(5) 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 suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false. (6) lf the court determines that any of the information contained in the affidavit of any document submitting by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.” In the past, in petitions relating to the qualification velnon of returned candidates at an election, the Court of Appeal seemed to make a distinction between instances of qualification. Some previous decisions of this court including my humble self seemed to have made a distinction between constitutional non qualification which must be tried by the tribunal as a ground for the petition and making a false declaration to INEC under S. 31 of the Electoral Act 2010 as amended which was thought to be under the exclusive jurisdiction of the Federal, State, or FCT High Court. However that is no longer the position of the law. The present position is that a candidate has two chances of challenging an opponent. The first chance is to challenge the candidate for making a false return in Form CF001 at the Federal, States, or FCT High Court. He is also opportuned once the election has taken place, to challenge the return of the returned candidate on the basis of constitutional non qualification as shown in the false declaration made in Form CF001 to INEC.” Per OGUNWUMIJU, J.C.A
“One of my favourite precedents on the nature of pleadings particularly in election petitions is the dictum of Adekeye JCA (as she then was) in C. H. OGU V. IKE EKWEREMADU & ORS (2004) 2 LRECN Pg. 293 at 312 -313 where her Lordship stated thus: “The functions of pleadings in an election petition are: a) To inform the other side of the nature of the case he is to meet in order to be prepared for same as distinguished from the mode in which the case is to be proved. b) To prevent the other side from being taken by surprise and to save unnecessary expense. c) To enable the opponent to know what evidence he ought to prepare for the trial d) To limit the generality of the pleading or claim to the evidence. e) To limit and define the issues to be tried and as to which discovery is required. f) To tie the hands of the party so that he cannot without leave of court go into matters not formally included therein”. Thus proper pleadings involve the following: (i) Every pleading must state facts and not law. (ii) It must state material facts and material facts only. (iii) It must state facts and not the evidence by which they are to be proved. (iv) It must state such facts concisely in a summary form I am of the humble but firm view that on a corporate reading of the pleadings of the Appellant at the lower court, they were clear and direct and positively indicated the complaints of the Petitioner.” Per OGUNWUMIJU, J.C.A
“The non-qualification of a candidate to contest an election conducted under the Electoral Act is, indeed, the first ground under section 138(1) of the Electoral Act 2010 (as amended) for presenting an election petition to the lower tribunal. In other words, it is certainly not correct, as erroneously held by the lower tribunal at pages 881-882 of the record, that the complaint of the Appellant on the academic qualification of the 1st Respondent to contest the election in question is a pre-election matter. Surely, it is a complaint clearly cognizable in the lower tribunal. In any event, this issue has been laid to rest in the recent unreported decision of the full compliment of the Supreme Court in the consolidated cases of PDP V. SAROR & ORS SC. 381/2011; SUSWAN V. SAROR & ORS SC. 383/2011 where their Lordships held as follows:- “It is not correct that the matter of the qualification of a candidate is a pre-election issue and for the regular court alone. Therefore, the Governorship Election Petition Tribunal had jurisdiction to entertain a petition founded on the grounds of alleged presentation of forged Certificate and deposition of false information on Form CF001 submitted by the 4th Respondent to the 3rd Respondent. The petition brought upon Section 138(1) (a) of the Electoral Act 2010 and Section 182(1) (i) of the 1999 Constitution do not require the prior conviction of the 4th Respondent on a charge of forgery before the tribunal below will be vested with the jurisdiction to entertain the petition which alleges presentation of a forged Certificate by the 4th Respondent to INEC.” The learned law Lords at the Supreme Court concluded that S. 31(5) & (6) of the Electoral Act has not ousted the jurisdiction of the Election Tribunal to enter into the matter of qualification or false return. They held that the powers under S. 31(5) & (6) are complimentary to the powers of the Tribunal such that either of the regular courts and the Tribunal can inquire into and determine all complaints of disqualification. See also ACN V. LAMIDO & ORS (2012) 8 NWLR Pt.1303 pg. 560 at 582. The Supreme Court has clarified the state of the law beyond question in the case of O. E. DANGANA V. HON. A. A. A. USMAN (2012) LRCN Pg. 92 at pg. 130 -131 where the Supreme Court per Onnoghen JSC held as follows:- “section 738(7) (a) of the Electoral Act, 2010 (as amended) provides, inter alia, that on 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.” Per OGUNWUM
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
CHARLES EHIGIE AIRHIAVBERE, (MAJ), (GEN), (RTD) Appellant(s)
AND
1. COMRADE ADAMS ALIYU OSHIOMHOLE
2. ACTION CONGRESS OF NIGERIA (CAN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER (EDO STATE)
5. THE RETURNING OFFICER, EDO STATE GOVERNORSHIP ELECTION Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship Election Petition Tribunal sitting at Benin delivered on the 27th of September, 2012. The facts which led to this appeal are as follows:
The Appellant was a candidate in the Governorship Election in Edo State held on 14/7/2012. The Appellant is the Petitioner in the lower tribunal.
The 1st Respondent was the candidate of the 2nd Respondent in the said election and were the 1st and 2nd Respondents at the lower tribunal.
At the end of the election the 1st Respondent was returned as the winner by the 3rd -5th Respondents. Being dissatisfied with the election and return of the 1st Respondent, the Appellant filed an Election Petition claiming the following reliefs:
“(a) That it be determined that the 1st Petitioner is entitled to be returned by the 3rd and 5th Respondents as having been duly elected as the Governor of Edo State by reason of having scored the highest number of lawful votes cast at the Governorship Election held on the 14th of July, 2012.
(b) In the alternative, that it be determined that the Election of the 1st Respondent was invalid by reason that he was not qualified to run for the office of Governor off Edo State having not met the mandatory statutory requisite qualifications to contest in the Election and other non-compliance with the provisions of the Electoral Act 2010 (as amended).
In their various replies to the petition the Respondent incorporated preliminary objections to same in line with Para 12(5) of the 1st Schedule to Electoral Act 2010 (as amended). The Appellant filed Replies to the various Replies by the Respondent.
At the close of pleadings, 1st Respondent filed a motion on notice on 3/9/2012 claiming the following reliefs:
1. Leave to bring and argue this application before/outside the prehearing session
2. An order striking out and/or dismissing the petition for being incompetent.
3. An order striking out paragraphs 8, 12(iv), 13(i), (ii) & (iii), 14(a-q), 15(a-k), 18, 19,20, 21, 22, 23, 24, 25, 27, 28, 29 and 30(1) and (2) of the Petition, a fortiori striking out the entire petition
On their part, 3rd – 5th Respondents also filed a motion on notice on 11/9/2012 claiming the following reliefs:
1. An order of this Honourable Tribunal granting leave to the Applicant to argue their applications before or outside pre-hearing session.
2. An order striking out or dismissing the petition for being inventive, mala fide, frivolous and a gross abuse of the process of the Honourable Tribunal.
IN THE ALTERNATIVE
3. An order of this Tribunal striking out the names of the 4th -5th Respondents from the petition same not being proper parties to it.
4. An order striking out paragraphs 8, 12, 13, 24, 25 and 30 of the petition.
Issues were joined by the parties in respect of the various applications and they were heard by the Learned Tribunal. On 27/9/2012, the lower tribunal delivered its ruling wherein it granted the application in part and struck out Paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(t) and (2) of the petition. The ruling is at page 866 to 888 of the records.
This appeal is against the part which held that the tribunal can entertain the motion at the interlocutory stage, that part that held that the issue of non qualification is a pre-election matter and that which struck out Paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(1) and (2) of the petition.
In the brief prepared by Chief E. L. Akpofure SAN, Senior Counsel submitted the following issues for determination:
1) Whether the Learned Chairman and Member of the lower tribunal were right when they held that notwithstanding the fact that the 1st and 3rd -5th Respondents had embedded their preliminary objection to the petition in their respective replies in accordance with paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended), 1st and 3rd – 5th Respondents could still raise the same objection by way of motion during the pre-hearing session.
This issue is distilled from Grounds 1, 2, 3 and 4.
2) Whether the Learned Chairman and Member of the lower tribunal were right when they held that it had no jurisdiction to inquire into the qualification of the 1st Respondent to contest the election for the office of Governor of Edo State held on 14th July, 2012. This issue covers Grounds 5, 6, 7, 8 and 9.
3) Whether the Learned Chairman and Member of the lower tribunal were right when they struck out paragraphs 12(iv), 23, 24 and 25 of the petition on the ground that the said paragraphs were vague, imprecise and scanty. This issue is distilled from Grounds 10, 11, 12, 13 and 17.
4) Whether the learned Chairman and Member of the lower tribunal were right when they struck out the reliefs claimed in paragraphs 30(1) and (2) of the petition. This issue is distilled from Grounds 144 & 16.
5) Whether the Learned Chairman and Member of the lower tribunal were right when they held that paragraphs 13(i) and (ii), 23, and 25 of the petition related to pre-election events. This issue is distilled from ground 15.
The 1st Respondent in the brief settled by Chief Olanipekun, OFR, SAN identified the following issues for determination:
i. Whether the lower tribunal was not right in its decision/ruling to entertain the Respondent’s motion/preliminary objection to strike out paragraphs 12(iv), 13(i), 13(ii), 23, 24,25, 30(1) and (2) of the petition as at the time it did – Grounds 1, 2, 3 and 4.
ii. Having regard to the pleadings in paragraphs 24 and 25 of the petition, read together with the clear provisions of section 31(41, (5) and (6) of the Electoral Act, 2010 l(as amended). Whether the lower tribunal was not right in striking out the said paragraphs and others relating to the purported qualification/disqualification of the Respondent – Grounds 5, 6,7 ,8, 9, 10, 11, 12, 13 and 15.
iii. Whether the lower tribunal was not perfectly right to have struck out reliefs (1) and (2) under paragraph 30 of the petition, as well as the vague paragraph 23 of the same. – Grounds 14, 16 and 17.
In the same vein, the 2nd Respondent in the brief settled by Abdullahi Ibrahim CON, SAN also identified the following issues for determination:
1. Whether the tribunal was right when it upheld the right of the Respondents to raise their preliminary objection by way of motion on notice at pre-trial stage notwithstanding the fact that they had earlier incorporated the objections in their replies.
2. Whether in the circumstances of this case, the tribunal was right when they struck out paragraphs 12(iv), 13(i) and (iii), 29, 24, and 30(1) and (2) of the petition.
The 3rd – 5th Respondents brief settled by Mr. Robert Omukpoeruo Esq identified the following issues –
1. Whether the trial was right in hearing and determining the applications of the 1st and 3rd – 5th Respondents during the pre-hearing sessions. Grounds 1, 2, 3 and 4.
2. Whether the tribunal was right in striking out paragraphs 12(iv), 13(1) and (ii), 23, 24, 2s and 30(1) and (2) of the petition pursuant to the objections of the 1st and 3rd-5th Respondents.
Grounds 5 – 17.
I will adopt the issues as crystallized by the learned Appellant’s Counsel as they best represent in full the complaints raised by this appeal. However since issue 5 is a repetition of issue 2, I will combine both issues. Issue four is an extension of issue 3 and will be taken together.
Before doing so, let me first deal with the preliminary objections raised by the 1st Respondent incorporated in the brief and argued during the hearing of the appeal. The thrust of the preliminary objection is that certain particulars of the grounds of appeal should be struck out. Let me set out the grounds of the objection as raised in the 1st Respondent’s brief:
1. No pleading of the Appellant relates to educational qualification of the Respondent.
2. Section 177, 132(1) (j) of the Constitution were/are not the Appellant’s case at the lower tribunal.
3. The case of the Appellant is as stated vaguely in paragraphs 24 & 25 of the petition.
4. Appellant sets up a different case on Appeal.
5. Appeal is a continuation of hearing
6. Further to paragraphs (1) – (5) supra, this Honourable court does not have jurisdiction to countenance the said particulars and grounds of the Notice of Appeal.
7. Ground 1 of the Notice of Appeal is vague and incomprehensible, while ground 2 is repetitive of ground 4
8. Particulars 3 and 5 of ground L of the Notice of Appeal argumentative
9. Particular 2 of ground of the Notice of Appeal is argumentative.
10. Particular 2 of ground 4 of the Notice of Appeal is argumentative.
11. Particular 1 of ground 5 of the Notice of Appeal is argumentative.
12. Particulars 3, 4 and 5 of ground 7 of the Notice of Appeal are argumentative.
13. Particular 3 of ground 8 of the Notice of Appeal is argumentative.
14. Particular 1 of ground 9 of the Notice of Appeal argumentative
15. Particulars of ground 15of the Notice of Appeal are not related to the said ground.
The argument of Learned Counsel for the 1st Respondent in the first instance is that no pleading of the Appellant at the lower tribunal relates to educational qualification as prescribed by the constitution. 1st Respondent argued that S.285(2) and S.177 and S.182(1)(1) of the Constitution brought to the fore in the this appeal are not part of the pleadings and case at the lower tribunal. Counsel then submitted that the Appellant cannot at this stage make a case that was not made at the tribunal. He cited NGIGE v. OBI (2006) 14 NWLR Pt. 999 Pg. 1 at 106-109, 208 and 225; ADEGOKE MOTORS LTD V. ADESANYA (1989) 3 NWLR Pt. 109 Pg.250. Learned Counsel for the 1st Respondent is also of the view that the grounds and particulars of the Notice of Appeal are repetitive, argumentative and incomprehensible and they should be struck out. He cited GUDA V. KITTA (1992) 12 NWLR Pt. 629 Pg.21 at 39, MARK V. ABUBAKAR (2009) 2 NWIR Pt. 11124 Pg.79 at 134; KHALLIL V. YAR’ADUA (2003) 16 NWLR Pt. 847 Pg. 46 at 478-479 CBN V. OKOJIE (2002) 8 NWLR Pt. 768 Pg. 48 at 61, LEAH V. OPALUWA (2004) 9 NWLR Pt. 879 Pg. 558 at 555.
Learned Appellant’s Counsel on the first leg of the objection is of the view that the Appellant is not making out a case here which he had not made at the tribunal. Appellant’s counsel insisted that the submission that the Appellant did not raise the issue of educational qualification is incorrect and against the specific finding of the lower tribunal which the 1st Respondent had not challenged. He cited UDO V. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 14 NWLR Pt.732 Pg.116 at 167, DAKUR V. DAPAL (1998) 10 NWLR Pt. 571 Pg. 573 at 585, FARO BOTTLING CO. LTD. V. OSUJI (2002) 1 NWIR Pt.748 Pg. 311 at 330. On the second leg of the objection, Counsel submitted that assuming without conceding that the grounds of appeal and their particulars even if they are repetitive and argumentative are still valid and competent as long as they do not take the 1st Respondent by surprise and they relate to the issues dealt with by the decision of the tribunal appealed against. He cited ODONIGI V. ADERU OYELEKE (2011) 11 WRN Pg.1; DAKOLO v. DAKOLO (2011) 50 WRN pg. 1 at 27.
The first leg of this objection as raised in my view touches on the substance and merit of the appeal. In fact that is the issue raised for determination by the Appellant as issue 2 in this appeal. I am of the humble view that that head of objection is premature and should abide the determination of issue 2.
On the 2nd leg of objection, I have read the grounds of appeal and the particulars of the said grounds. Indeed some of them are repetitive, however, they clearly state what the Appellant is complaining about in the judgment of the trial tribunal. Also there is no misapprehension or ambiguity in what each of the a ground or particulars are complaining about. In the circumstances, I find the two legs of objection without merit and they are hereby dismissed.
As I said earlier, I will adopt the issues as distilled by the Appellant in the determination of this appeal.
ISSUE ONE
The essence of the question we are asked to answer on this issue is whether the tribunal was right in hearing and determining the applications of the 1st and 3rd – 5th Respondents during the pre-hearing sessions.
Learned Senior Counsel for the Appellant argued that once a party has elected to incorporate his objection to the competence of the petition in his reply, the same party cannot raise the self-same objection by motion. The objection must be heard along with the substantive petition in accordance with the mandatory provisions of the rules applicable in the tribunal.
He posited that in line with in paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) the 1st and 3rd – 5th Respondents filed their respective replies to the Appellant’s petition and incorporated therein their respective objections to the competence of the petition.
However, the 1st and 3rd-5th Respondents filed their respective motions dated 30th August, 2012 and 7th September, 2012 challenging the competence of the Appellant’s petition. He submitted that the provision of paragraph 12(5) of the first schedule to the Electoral Act 2010 (as amended) has profoundly altered the tenor and intendment of preliminary objection in election petition matters and that the said piece of legislation was specifically enacted to meet the peculiar and specific need to expedite election petition proceedings.
He further submitted that paragraphs 12(5) and 47(1) of the 1st Schedule to the Electoral Act 2010 as amended provide separate and alternative procedures to a Respondent to an Election Petition. Consequently, a Respondent cannot avail himself of the benefit of these two procedures at the same time as the 1st and 3rd-5th Respondents did at the lower tribunal. Senior Counsel cited PDP V. INEC (2012) 7 NWLR Pt. 1300 Pg. 538 at 558 -559.
Learned Senior Counsel also submitted that paragraph 12(5) of the First Schedule to the Electoral Act is a qualification to the general rule that all preliminary objection purporting to challenge the jurisdiction of the tribunal most be heard first. It is a specific law that excludes the application of the general law.
He cited JAMES ORUBU V. INEC (1988) 5 NWLR Pt. 94 Pg. 323 at 349.
Learned Senior Counsel argued that the tribunal should not have placed reliance on NWANKWO V. YAR’ADUA (2010) 45 WRN 1 at 75; (2010) 12 NWLR pt. 1209 pg. 518 since the said decision was given before the enactment of paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended).
Learned Senior Counsel wants us to hold that PDP V. INEC Supra did not decide that a Respondent who has objection to the competence of an election petition has liberty to employ the two modes of presenting the objection before the tribunal, which were examined by their Lordships of the Supreme Court.
Rather, what the apex court, in essence, held was that where the law provides two methods or procedure for doing a thing, a party can choose any of the methods so provided and not both. Once a party has elected on a particular procedure, he is bound to pursue that procedure to its logical conclusion. He cannot abandon that procedure to have recourse to the second method.
The arguments of learned Senior Counsel for the 1st Respondent, learned Counsel for the 2nd Respondent and learned Counsel to the 3rd-5th Respondents on this issue is that there is nothing sacrosanct in paragraph 12(5) of the 1st Schedule to the Electoral Act in so far as an objection to the jurisdiction of an Election Tribunal is concerned. Put in another way. Paragraph 12(5) does not foreclose an Election Tribunal from either on its own or through the application of any Respondent from taking an issue of jurisdiction in limine, timeously or at any time.
The Respondents submitted that there is nothing in the provisions of paragraph 12(5) of the First Schedule which oust the jurisdiction of the tribunal from entertaining and determining a motion on notice during the prehearing stage, especially where a fundamental issue of jurisdiction is raised. While Appellant in this case has placed heavy reliance on the decision of the Supreme Court in PEOPLES DEMOCRATICE PARTY VS. INEC, the Respondents submitted that the copious reference to the decision did not in any way advance the argument or case of the Appellant. They argued that the Supreme Court stated in that case that where the law provides two methods or procedures for doing a thing, a party can chose any of the two methods or procedure provided. The court did not say mere incorporation of a preliminary objection in a reply will automatically foreclose a respondent from raising that objection by motion on notice at pre-hearing session and that the law allows a party to either wait and take his objection with the main petition, or raise same by way of motion on notice pursuant to paragraph 47(10) of the 1st Schedule to the Electoral Act 2010 as amended. The 1st, 3rd- 5th Respondents elected the latter. The Respondents submitted that they were perfectly within their rights when they filed the motion on notice, and that the trial Tribunal was right when it upheld the right of the 1st, 3rd-5th Respondents to bring the objection by way of motion on notice at prehearing session notwithstanding that the objection had earlier been raised in the replies filed.
At page 871 – 872 of the record, the Learned Tribunal held thus:
“It is therefore our opinion in line with the holding of the Apex court that so far the 1st Respondent chose to bring this application by way of motion on Notice and is taken during the pre-hearing conference, the tribunal is vested with the jurisdiction to entertain it at this stage of the proceedings”.
In determining this question, we have to look at the provisions of the statute law and decision law.
Paragraph 12(5) of the First schedule to the Electoral Act 2010 (as amended) Provides as follows:
“A Respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition”.
S. 47(1) of the same 1st Schedule provides as follows:
“47 (1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal of court.”
Both of these provisions were interpreted in PDP V. INEC 2012 NWLR Pt. 1300 supra at pg. 558-559 Muntaka-Coomassie JSC where his Lordship held thus:
“The main contention of the Appellant in this appeal my lords is that the lower court was wrong to affirm the decision of the tribunal that struck out various paragraphs of the petition in its final judgment. It was its contention that the trial tribunal wrongly relied on the provisions of paragraph 12(5) of the 1st Schedule and that by the provisions of paragraph 47(1) all motions shall be moved at the pre-hearing session except in extreme circumstances with the leave of tribunal. Paragraph 12(5) of the 1st Schedule of the Electoral Act 2010 provides as follows:
“A Respondent who has objection to the hearing of the petition shall file his reply and state the objection thereon and the objection shall he heard along with the substantive petition.”
While paragraph 47(1) of the 1st Schedule to the Electoral Act 2010 (as amended) provides thus:
“(i) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave to tribunal or court”(Italics mine for emphasis)
With tremendous respect, these paragraphs of the 1st Schedule apply to the different situations and proceedings, e.g.
(i) Where a party approaches the tribunal with objection by way of motion, such motion shall be moved and determined during prehearing session except in extreme circumstances with the leave of the tribunal, that is the position under the provisions of paragraph 47(1) of the 1st Schedule; and
(ii) Where the objection is embedded or stated in the reply. Such objection shall be heard along with the substantive case.
In the instant case or appeal, the Respondent adopted the latter procedure by stating the objection in their reply and argued same in their final written address and the appellant also replied in its own written address.
In my view, the provisions of the two paragraphs are clear and unambiguous, and are not subject to any interpretation and I only wish to state that where the law provides two methods or procedures for doing a thing, party can choose any of the method so provided. The Respondents in this case elected to raise their objection pursuant to paragraph 12(5) of the 1st Schedule and they are entitled to so elect. The paragraph is to ensure timeous determination of the petition on this point the lower court held as follows ;
“Paragraph 12(5) stipulated that a Respondent who has an objection to the hearing of the petition shall file his reply and state the objection, which will be determined with the substantive petition.
The phrase “hearing the petition” cannot be limited to only after pleadings have been exchanged. Paragraph 12(5) of the 1st Schedule is intended from its composition to reflect the sui generic nature of election matters. The Mischief obvious is to ensure objections raised do not derail the determination of the merit of a case by undue and unwarranted delay occasioned by preliminary objection.”
With due respect I entirely agree with this statement of law adumbrated in the judgment of the lower court”.
I have read that judgment of the Supreme Court. The Appellant wants us to put a strict interpretation to that decision law and the Respondents desire us to interpret same liberally. That is to say, the Appellant wants us to agree that the Supreme Court feels that the Respondent to a petition is obliged to take only one of the two alternatives open between paragraph 12 (5) or paragraph 47(1) of 1st Schedule to the Electoral Act. Whereas the Respondents want us to take the view that in spite of the introduction of paragraph 12(5) the Respondents can pick and choose which method to actually trigger in actuating its objections to a petition.
I am of the view on a global reading of the 1st Schedule to the Electoral Act and a thorough reading of the judgment in PDP V. INEC reported in Pt. 1300 that I should take the liberal view. The 1st Schedule and indeed the decision law falls short of stating that each method is mutually exclusive of the other. That is to say, the Supreme Court did not say that even though the parties can choose which method to use, it is bound only to use that method. A Respondent in my view can with abundance of caution comply with paragraph 12(5) and also where he deems appropriate utilize paragraph 47(1), both paragraphs not being mutually contradictory or exclusive. In fact the words used by Muntaka-Coomassie JSC in PDP V. INEC reported in NWLR Pt. 1300 as already quoted above is that a party can choose any of the methods so provided where the law provides two methods or procedures for doing a thing. I am bound by that decision and I agree with the lower tribunal that even though the Respondents had indicated their objections in their reply, in accordance with paragraph 12 (5) it is not out of place and they are not precluded from bringing motions in the manner employed under paragraph 47(1) of the 1st Schedule. The Federal High Court rules also entertain a situation for example when a Respondent in the statement of defence raises the defence of limitation/statute bar to the action. The defence is also allowed to file a motion to raise that same defence as a preliminary objection and a shield to the action. I have to agree with learned Respondents’ Counsel that the tribunal had competence to determine at the preliminary stage by way of a motion of objection whether it has jurisdiction to entertain the petition or a part of it. I have to agree with learned 1st Respondent’s Counsel that Section 140(4) of the Electoral Act is even made subject to paragraph 53(2) of the 1st schedule, meaning that paragraph 53(2) which deals with specific situation overrides section 140(4). The law is also sacrosanct that a general provision does not override a specific provision. See INAKOJU V. ADELEKE (2007) 4 NWLR (Pt. 1025) 423. Further, paragraphs 47(1) and 53 are extant provisions. The Supreme Court did not say that a Respondent cannot challenge the competence of a petition under paragraph 53(2), which uses the word ‘shall’ to qualify what must be done, meaning that it is mandatory. The first issue is resolved in favour of the Respondents.
ISSUES TWO & FIVE
Learned Senior Counsel for the Appellant on the 2nd issue argued that the 1999 Constitution as amended specifically made the non-qualification of a candidate to contest an election conducted under the Act one of the grounds for presenting an election petition to an Election Tribunal.
Learned Senior Counsel argued that the tribunal was wrong in arriving at the conclusion that the petition as couched by the petitioner particularly in limiting the complaints to the contents of form CF001 at Paragraph 25 of his petition and reference only to the provisions of S.31(1 -(b) of the Electoral Act 2010 divested the tribunal of jurisdiction to try same as it was a pre-election matter.
Learned Appellant’s Counsel argued that the provisions of the Constitution cannot be limited or circumscribed by the Electoral Act or any other Act of the National Assembly. He cited EZE V. GOVERNOR OF ABIA STATE (2010) 15 NWLR Pt. 1216 Pg. 324 at 348-349; SPEAKER KOGI STATE HOUSE OF ASSEMBLY V. ADEGBE (2010) 10 NWLR Pt. 11201 Pg. 45 at 69; CADBURY NIG PLC V. FBIR (2010) 2 NWLR Pt.117 Pg. 561 at 579-580. Counsel argued that the presentation of a forged or false document to the Independent National Electoral Commission by a candidate at an election conducted under the Electoral Act is a disqualifying factor under section 182(1) (j) of the 1999 Constitution. Consequently, the lower tribunal stood on very weak wicket when it held at page 881 of the record that the Appellant ought to have approached the High Court and not the tribunal with respect to Appellant’s contention at paragraph 25 of the petition to the effect that 1st Respondent presented false or forged documents to the Independent National Electoral Commission. He cited KWARRA V INNOCENT (2009) 1 NWLR Pt.1121 Pg. t79 at 223; EJIOGU V. IRINA (2009) 4 NWLR Pt. 1132 Pg. 513 at Pg.561; EMELUWA V. ONUIGWE (2011) Pt. t265 Pg. 49 at 480; DANGANA V. HON. A.A.A. USMAN & ORS (2012) 208 LRCN Pg. 92 at Pg. 130-131, DURU V. INEC (2011) 21 NWLR Pg. 83 at Pg. 116; TUKUR MOHAMMED BESSE & ANOR V. KABIRU ABDULLAHI & ORS (Unreported) CA/S/EPT/11/17/2011; ACN V. LAMIDO & ORS (2012) 8 NWLR Pt. 1303 Pg. 360 at 582.
Learned Senior Counsel for the 1st Respondent argued that the Constitutional requirements for the office of a Governor of a State are as stipulated under sections 177 and 182 of the Constitution. Section 177 talks of qualification, while section 182 talks of disqualification.
The Learned Senior Counsel for the 1st Respondent and the counsel for the 2nd Respondent both argued that while paragraph 24 of the election petition did not pretend to pin point which minimum qualification the Respondent does not have, paragraph 25 complains of the Form CF001 which the 1st Respondent submitted. All the Respondents’ Counsel argued that Section 285 (2) of the Constitution vests the lower tribunal with only the jurisdiction to decide whether or not any person has been validly elected as a Governor of a State. It does not vest the tribunal with the jurisdiction to inquire into pre-election matters.
Including the issue of voters’ registers and Form CF001 submitted for nomination etc. The submission being made is that the jurisdiction of the lower tribunal is narrow and specific and not at large. He cited ONITIRI V. BENSON (1960) SCNL 314; OBI V. INEC (2007) 11 NWLR (Pt. 1045) 565 at 635 and EMEJE V. POSITIVE (2010) 1 NWLR (Pt. 1174) 48 at 76. See further APGA V. UBA (2012) 11 NWLR (Pt.1311) 325 at 355; MOGHALU V. WOBO (2004) 17 NWLR (Pt. 903) 465 at 483- 484; ODEDO V. INEC (2008) 17 NWLR (PT.1117) 554 AT 602; AMAECH V. INEC (2007) 18 NWLR (Pt.1065) 170 at 196.
He further argued that from the averments in the petition, it is obvious that the Petitioner’s issue of qualification is inextricably tied to the documents submitted to INEC i.e. FORM CF001 and having been tied to the documents submitted to INEC, it is a pre-election matter. He urged this court to hold that the Tribunal was therefore correct when it struck out paragraph 25 of the petition on the ground that it raises a pre-election issue.
Let us look at the reasoning of the learned lower tribunal as contained on pg. 879-882 of the record –
“We have properly opened our eyes and gave a global reading to the whole petition as held in HOPE DEMOCRATIC PARTY V. INEC (2009) 8 NWLR (Part 1143) 297 at 315 and found that the qualification of the 1st Respondent is being challenged only as per the paragraphs reproduced above. From the manner paragraph 25 of the petition is drafted, it conveys the message challenging the academic qualifications of the 1st Respondent presented to INEC, particularly as in or along with Form CF00l in 2007 and 2012 do not belong to him. In other words a false declaration was made or the documents presented are false. In as long as we do not dispute the fact that the tribunal is vested with Constitutional jurisdiction to inquire into the qualification or non- qualification of a candidate to an election as submitted by Mr. Akpofure SAN, such power is limited by the provisions of section 31(1) – (6) of the Electoral Act 2012 as amended”.
After setting out the provisions of the Electoral Act referred to above, the lower tribunal proceeded at pages 881 – 882 of the record to hold as follows –
“The effect of the quoted paragraph of the Electoral Act to the pleadings in Paragraph 25 of the petition in a nutshell is that the Petitioner should have approached the High Court for the determination of what he considers Form false CF001 or any other document submitted to INEC (3rd Respondent) by the 1st Respondent in the 2007 and 2012 election. The failure clearly is fatal as the Tribunal is not vested with jurisdiction to inquire into such aspect of the petition which falls under the category of Election matters as rightly submitted by learned Senior Counsel for the 1st Respondent. Paragraph 25 is therefore struck out from the petition”.
The issue of qualification of a candidate to contest for the office of Governor of a State is governed by the provisions of section 177 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides as follows:
“177. A person shall be qualified for election to the office Governor of a State if –
al He is a citizen of Nigeria by birth;
b) He has attained the age of thirty -five years,
c) He is a member of a political party and is sponsored by that political party; and
d) He has been educated up to at least School Certificate level or its equivalent.
Similarly, section 182(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes ample provisions for the disqualification of persons seeking to contest election for the office of Governor of a State.
Specifically, section 182(1) (J) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows:
182(1) No person shall be qualified for election to the office of Governor of a State if –
(j) he has presented a forged certificate to the Independent National Electoral Commission
We must note that S.138(1) (a) of the Electoral Act 2010 (as amended) provides as follows:
138 (1) An election may be questioned on any of the following grounds: that is to say –
a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
At paragraph 12(iv) of his petition at page 3 of the record of appeal, the Appellant averred as follows:-
12 Your Petitioners states that the facts supporting the grounds of this petition are as follows:
(iv) The 1st Respondent who was purportedly returned as the winner of the said election was not qualified to contest for the said election for the office of the Governor of Edo State.
Further, at paragraphs 24 and 25 of the petition at page 12 of the record of appeal, the Appellant averred as follows:-
24 Your Petitioners aver that the 1st Respondent is not qualified to contest the said Governorship election in Edo State having not met the minimum qualification to contest for the said office of Governor of Edo State as provided for in the 2010 Electoral Act (as amended).”
25 Your Petitioners further aver that there is no nexus between the 1st Respondent and the academic qualifications he presented as his qualification. The Petitioners shall found and rely on Certificate True Copies of these qualification at the trial of the petition especially as depicted in FORM CF.001 submitted to the 3rd Respondent in 2007 and 2012 by the 1st Respondent.
I agree with the reasoning that the wordings of S. 31(5) & (6) are not peremptory but permissive. They are set out below:
“(5) 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 suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.
(6) lf the court determines that any of the information contained in the affidavit of any document submitting by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.”
In the past, in petitions relating to the qualification velnon of returned candidates at an election, the Court of Appeal seemed to make a distinction between instances of qualification. Some previous decisions of this court including my humble self seemed to have made a distinction between constitutional non qualification which must be tried by the tribunal as a ground for the petition and making a false declaration to INEC under S. 31 of the Electoral Act 2010 as amended which was thought to be under the exclusive jurisdiction of the Federal, State, or FCT High Court.
However that is no longer the position of the law. The present position is that a candidate has two chances of challenging an opponent. The first chance is to challenge the candidate for making a false return in Form CF001 at the Federal, States, or FCT High Court. He is also opportuned once the election has taken place, to challenge the return of the returned candidate on the basis of constitutional non qualification as shown in the false declaration made in Form CF001 to INEC.
We must realise surely that where there has been a false declaration in Form CFO91 particularly where such declaration seeks to manipulate the qualifications of a candidate so as to satisfy the provisions of the Constitution, such false declaration can be challenged at the tribunal vested with the jurisdiction to determine the validity of a candidate’s election on the ground on non-qualification.
The non-qualification of a candidate to contest an election conducted under the Electoral Act is, indeed, the first ground under section 138(1) of the Electoral Act 2010 (as amended) for presenting an election petition to the lower tribunal. In other words, it is certainly not correct, as erroneously held by the lower tribunal at pages 881-882 of the record, that the complaint of the Appellant on the academic qualification of the 1st Respondent to contest the election in question is a pre-election matter. Surely, it is a complaint clearly cognizable in the lower tribunal.
In any event, this issue has been laid to rest in the recent unreported decision of the full compliment of the Supreme Court in the consolidated cases of PDP V. SAROR & ORS SC. 381/2011; SUSWAN V. SAROR & ORS SC. 383/2011 where their Lordships held as follows:-
“It is not correct that the matter of the qualification of a candidate is a pre-election issue and for the regular court alone. Therefore, the Governorship Election Petition Tribunal had jurisdiction to entertain a petition founded on the grounds of alleged presentation of forged Certificate and deposition of false information on Form CF001 submitted by the 4th Respondent to the 3rd Respondent. The petition brought upon Section 138(1) (a) of the Electoral Act 2010 and Section 182(1) (i) of the 1999 Constitution do not require the prior conviction of the 4th Respondent on a charge of forgery before the tribunal below will be vested with the jurisdiction to entertain the petition which alleges presentation of a forged Certificate by the 4th Respondent to INEC.”
The learned law Lords at the Supreme Court concluded that S. 31(5) & (6) of the Electoral Act has not ousted the jurisdiction of the Election Tribunal to enter into the matter of qualification or false return. They held that the powers under S. 31(5) & (6) are complimentary to the powers of the Tribunal such that either of the regular courts and the Tribunal can inquire into and determine all complaints of disqualification. See also ACN V. LAMIDO & ORS (2012) 8 NWLR Pt.1303 pg. 560 at 582. The Supreme Court has clarified the state of the law beyond question in the case of O. E. DANGANA V. HON. A. A. A. USMAN (2012) LRCN Pg. 92 at pg. 130 -131where the Supreme Court per Onnoghen JSC held as follows:-
“section 738(7) (a) of the Electoral Act, 2010 (as amended) provides, inter alia, that on 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 High Courts have jurisdiction to deal with the matter. I do not agree that 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 an 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.”
The above decision as enunciated clearly and unequivocally by the apex court is the present position of the law. Therefore the Learned Tribunal was wrong in holding that the Tribunal had no jurisdiction to try the ground of the petition as couched by the Petitioner. The 2nd and 5th issues are resolved in favour of the Appellant.
ISSUES THREE & FOUR
These issues boil down to whether the Tribunal was right in striking out paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and reliefs 30(1) & (2) of he petition.
Learned Appellant’s Counsel submitted that the lower tribunal was palpably wrong when it struck out paragraphs 12(iv), 24 and 25 of the petition on the erroneous ground that the said paragraphs were vague, imprecise and scanty.
Senior Counsel argued that paragraphs 12(iv), 24 and 25 of the petition, the challenge of 1st Respondent’s academic qualification is sufficiently direct, precise and unambiguous as found by the lower Tribunal at page 879,lines 11-16 of the record. He contended that Appellant’s complaint against the 1st Respondent was that the 1st Respondent had submitted false documents to the 3rd Respondent thus bringing him within the ambit of the provisions of section 182(1) (j) of the Constitution.
Learned Appellant’s Counsel argued that that the Respondents were not misled by any insufficiency or otherwise of the facts contained in the said paragraphs and that having been fully apprised of the Petitioner’s pleadings, duly and timeously filed their respective replies to the said petition, and none of the Respondents requested for further and better particulars. This he concluded shows that none of the paragraphs struck out were vague or scanty.
He referred us to Odgers’ Principles of Pleadings and Practice 20th Edition by Giles Francis Harwood Chapter 7 Page 84; OGU V. IKE EKWEREMADU & ORS (2004) 2 LRECN Pg 293 at 312 -313. He urged the court to give the petition a global reading and not to compartmentalize same. He cited HOPE DEMOCRATIC PARTY V. INEC (2009) 8 NWLR Pt. 1143 Pg. 297 at 329; YONGBISH V. BULUS (1997) 2 NWLR Pt. 489 Pg.621 at 534; OSENI V. DAWODU (1994) 4 NWIR Pt. 338 Pg 390 at 410; KAUGAMA V. NEC (1993) 3 NWLR Pt.284 Pg. 581 at 599.
Learned Senior Counsel further argued on the 2nd leg of this issue that the Honourable Tribunal was in deep error when it struck out the two reliefs in the petition on the ground that the two reliefs are no longer supported by any valid grounds. He argued that Tribunal had struck out relief one on the ground that it is not tied to any of the surviving grounds whereas paragraphs 19, 20, 21 and 22 are strong pleadings upon which relief one can safely rest and be tied to if successfully proved.
Senior Counsel argued that paragraph 30(1) of the petition is sufficiently tied to paragraph 8 of the petition where the Appellant pleaded corrupt practices and non-compliance with the provisions of the Electoral Act, 2010 (as amended).
Senior Counsel also argued that relief two at paragraph 30(2) is also amply supported by grounds 12(iv), 24 and 25 of the petition. He submitted that the ground alleging non -compliance with the provisions of the Electoral Act, 2010 (as amended) can validly support a relief seeking to invalidate an election. He cited ONUGHA & ANOR V. NJIDEKA EZEIGWE (2011) 13 NWLR (Pt.1263) 184 at 202.
Appellant’s Senior Counsel drew our attention to the fact that in paragraph 10 of the petition which is at page 2-3 of the record, the petitioner pleaded the result of the election and all relevant forms used for the election. Appellant also pleaded the result which he wants the Tribunal to be voided due to various forms of non-compliance, malpractice and irregularity. The Appellant also challenged the result declared in other units wards and Local Government Areas.
Appellant’s argument is that if the result in the units being challenged are voided, the Tribunal has the legal duty to compute the valid votes and declare the Petitioner the winner. He cited ADUN V. OSUNDE (2003) 16 NWLR Pt. 847 Pg. 634 at 565-657.
The 1st Respondent treated this issue as his issues 2 & 3. Learned Senior Counsel leading other SAN and Counsel insisted that heavy weather has been placed on paragraphs 12(i), (ii), (iv), 13(1) and (2), 14 and 24 of the petition. He insisted that paragraph 12 has nothing to do with qualification, Paragraph 13 has no nexus with qualification. Paragraph 14 deals with Senatorial Districts and analysis. Paragraph 24 is vague, abstract, meaningless and of no utility value.
Learned Respondents’ Counsel argued that there is nowhere in the petition where the Appellant claimed that he won majority of the lawful votes cast and that the only ground of the petition is to the effect “that the purported election for the office of the Governor of Edo State which took place on the 14th of July, 2012 was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2010 (as amended)”.
Senior Counsel said that since the sole ground of the petition talks only of corrupt practices and non-compliance with the Electoral Act, then, it means the facts and the grounds are at cross purposes.
Learned Senior Counsel argued that there is no ground of the petition challenging the election and return of the1st Respondent on the ground that he was not duly elected by the majority of lawful votes cast at the election as provided under Section 138(1) (c) of the Electoral Act. They also submitted further that there is no ground of the petition whereat the Appellant had pleaded that he won majority of lawful votes cast at the election to warrant his first and principal relief.
Senior Counsel for the 2nd Respondent argued that a close reading of the ruling of the tribunal will reveal that the basis or reasons for striking out the paragraphs are not the same and that paragraph 25 was struck out because it raised pre-election matters which the tribunal has no jurisdiction to look into. paragraphs 12(iv) and 24 of the petition were struck out because they are scanty and imprecise and cannot support the ground of disqualification. Paragraph 30(2) which is a relief; to wit: “that it be determined that the election of the 1st Respondent was invalid by the reason of the fact that he was not qualified to contest the election” was also struck out on the ground that there are no valid grounds in the petition to sustain same. Paragraphs 13(i), (ii) and 25 were struck out because they are predicated on pre-election matters, while paragraph 23 was struck out for being vague. Paragraph 30(1) was struck out being a relief that is not tied to or derived from the surviving ground of the petition. Senior Counsel to the 2nd Respondent urged us to sustain the ruling of the Tribunal on the reasons given by them
Learned Counsel to the 3rd – 5th Respondents urged the view that paragraph 13(i) and (ii) of the petition at page 3 of the record of appeal deals with the REVISION OF VOTERS REGISTERS and the alleged postponement of the exercise.
This is clearly and unarguably a pre-election matter.
He argued that paragraph 25 of the petition did not raise an issue of presentation of forged certificate by anybody to INEC. There is no allegation of presentation of forged certificate to INEC. There is even no plea that the CF001 was submitted by the 1st Respondent to INEC. He submitted that the decision to strike out paragraphs 13(i), (ii) and 25 of the petition as relating to pre-election matters is clearly well founded and cannot be faulted. Learned Counsel argued that paragraphs 12 (iv), 23 and 24 were clearly in violation of paragraph a(1) (d) of the First Schedule to the Electoral Act 2010 as amended Counsel to the 3rd – 5th respondent urged this court to hold that the petitioner is held inextricably bound to this pleading. He cannot through counsel’s gallant arguments break free from the bonds of his pleadings. He must sink or swim with the facts pleaded in the petition as it was pleaded.
The implication of our decision in respect of issues 2 and 5 is that paragraphs 24 and 25 of the petition should not have been struck out.
Earlier on in this judgment, it had been settled that complaints rooted in violations of the Electoral Act particularly related to the qualification of a candidate and out right constitutional non qualification can be challenged at the Election Tribunal. Having said that, let us tacitly agree that the Tribunal had jurisdiction to try the petition. The million dollar question now is whether indeed with the facts as pleaded in the petition, it was correct to have struck out the said portions of the petition for in the first instance violating paragraph (1) (d) of the 1st Schedule to the Electoral Act 2010 (as amended) in any event. The judgment of the Tribunal is on page 856-888 of the record Vol .2 The Tribunal had quoted S. 31(1) (6) of the Electoral Act 2010 and concluded at page 882 – 884 of the record thus:
“Now that the Petitioner is left with paragraphs 12(iv) and 24 of the petition in support of the ground of qualification of the 1st Respondent to contest the election, can the paragraphs validly sustain the ground as provided for in Section 138(1) (a) of the Electoral Act, 2010 as amended. In order to resolve the issue we find paragraph 4(1) (d) of the First Schedule to the Electoral Act relevant. It Provides –
“4(1) An election petition under this Act shall –
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the Petitioner.”
Thus, a petitioner is under a mandatory duty to state in clear terms the facts giving rise to a ground or grounds upon which he based his the Electoral Act 2010, as amended. The Petitioner failed to provide any particular or particulars of the disqualification of the 1st Respondent throughout the averments in the petition. Moreso, when it is clear that Paragraph 14(2)of the First Schedule to the Electoral Act 2010, as amended prohibits any amendment to the petition introducing any of the requirements of sub-paragraph (1) of paragraph 4, effecting a substantial alteration of the ground for, or the prayer in the election petition or except anything which may be done under the provisions of sub-paragraph 2(a) (n) of paragraph 14 affecting a substantial alteration of or addition to the statement of facts relied on to support the ground for, or sustain the prayer in the election petition. In the final analysis therefore, we find that the scanty and imprecise facts averred to in paragraphs 12(iv) and 24 of the petition cannot support the ground of disqualification of the 1st Respondent. See also BUHARI V. OBANJO (2003) 17 NWLR (Pt.850) 510 where the supreme court held that all facts a party relies upon must be pleaded clearly in numbered paragraphs so that no party should take advantage of lurking away facts in pleadings and are matters of full disclosure where the particulars must be given so that the adversary must be taken by surprise. Paragraphs 12(iv) and 24 of the petition cannot therefore support the ground of qualification or otherwise of the 1st Respondent and are hereby struck out from the Petition.
Consequently, relief 2 in paragraph 30(2) of the petition is rendered a nullify as it is not supported by any valid ground in the petition and is accordingly struck out from the petition”.
Now, paragraph 4(1) (d) of the 1st Schedule to the Electoral Act 2010 provides as follows:-
(1) An election petition under this Act shall –
(b) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the Petitioner.
paragraphs 24 and 25 of the petition will be the starting point since the determination of issues 2 & 5 have restored them as a pleading which the Tribunal has jurisdiction to determine. For ease of reference I have to repeat S.12(iv) 24, and 25 of the Petition.
25. your Petitioners aver that there is no nexus between the 1st Respondent and the academic qualifications he presented as his qualifications. The Petitioners shall found and rely on Certified True Copies of this qualification at the trial of the petition especially as depicted on FORM CF001 submitted to the 3rd Respondent in 2007 and 2012 by the 1st Respondent.”
That is a clear challenge in my view to the academic qualifications presented by the 1st Respondent. The Tribunal conceded this point at page 879 of the record when it said:
“From the manner paragraph 25 of the petition is drafted, it conveys the message challenging the academic qualifications of the 1st Respondent presented to INEC, particularly as in or along with Form CF001 in 2007 and 2012 do not belong to him. In otherwords a false declaration was made or the documents presented are false”.
Let us also look at paragraphs 12(iv) and 24 of the petition 12. Your Petitione6 states that the facts supporting the grounds of the Petition are as follows:
(iv) The 1st Respondent who was purportedly returned as the winner of the said election was not qualified to contest for the said election for the office of the Governor of Edo State.
24. your petitioners aver that the 1st Respondent is not qualified to contest the said Governorship election in Edo State having not met the minimum qualification to contest for the said office of Governor of Edo State as provided for in the 2010 Electoral Act (as amended).
The lower Tribunal held that the facts as set out above are scanty and imprecise.
However, pleadings must be examined in whole. They cannot be isolated or compartmentalized. The Tribunal appeared to have considered only the bare pleadings in the petition. Let even admit without conceding that the paragraphs 12(iv) and 24 are not copious enough, what of the particulars supplied in paragraph g at page 689-690 of the Petitioner’s Reply to the 1st Respondent’s Reply. Similar particulars appear in the Petitioner’s Replies to the 2nd Respondent and 3rd-5th Respondents’ Replies to the petition.
Paragraph 9 of the Reply to the 1st Respondent’s Reply at page 689 states as follows:
9. In reply to paragraph 27 and 28 of the 1st Respondent’s Reply to the Petitioner’s petition, the Petitioner states that the 1st Respondent is not the owner of Secondary Modern School Certificate and the altered Testimonial presented to the 3rd Respondent and the 1st Respondent does not have Primary School Leaving Certificate.
PARTICULARS
(a) There was no Iyamoh Primary School, Iyamoh in 1957.
(b)The 1st Respondent was barred from enrolling into and entering primary one in 1957 having not attained the minimum age of Six years by the provision of Western Region of Nigeria Gazette No. 17 Vol. 5 dated 5th April, 1956.
(c) The 1st Respondent dropped out of the Secondary Modern School in the second year and did not complete the mandatory three years course at Blessed Martin’s Secondary Modern School, Jattu- Uzairue, which he claimed to have attended between 1963 and 1965.
(d) Unexplained discrepancies in the names of the various academic certificates presented as aforesaid.
(e) Ruskin College, Oxford only provides educational opportunities for adults with little or no qualifications, which the said institution availed the 1st Respondent in LABOUR STUDIES. There is no formal educational entry requirement in order to be admitted into Ruskin. Anyone above the age of 19 years that occupies or who occupies a trade union position is eligible to register. This is however subject to his or her union’s approval. It is purely a trade union studies that the 1st Respondent attended.
(iv)A Diploma in Ruskin College is not an equivalent of WAEC as required by the Constitution of the Federal Republic of Nigeria.
One of my favourite precedents on the nature of pleadings particularly in election petitions is the dictum of Adekeye JCA (as she then was) in C. H. OGU V. IKE EKWEREMADU & ORS (2004) 2 LRECN Pg. 293 at 312 -313 where her Lordship stated thus:
“The functions of pleadings in an election petition are:
a) To inform the other side of the nature of the case he is to meet in order to be prepared for same as distinguished from the mode in which the case is to be proved.
b) To prevent the other side from being taken by surprise and to save unnecessary expense.
c) To enable the opponent to know what evidence he ought to prepare for the trial
d) To limit the generality of the pleading or claim to the evidence.
e) To limit and define the issues to be tried and as to which discovery is required.
f) To tie the hands of the party so that he cannot without leave of court go into matters not formally included therein”.
Thus proper pleadings involve the following:
(i) Every pleading must state facts and not law.
(ii) It must state material facts and material facts only.
(iii) It must state facts and not the evidence by which they are to be proved.
(iv) It must state such facts concisely in a summary form I am of the humble but firm view that on a corporate reading of the pleadings of the Appellant at the lower court, they were clear and direct and positively indicated the complaints of the Petitioner. By no stretch of the imagination can the total pleadings of the Appellant be called vague and a wild goose chase. Full details and particulars were given in the pleadings of what his case is about. I am of the view that paragraphs 12(iv), 24 and 25 and other portions of the total pleadings of the Appellant show the complaint in the petition. They are hereby restored.
Now let us look at paragraph 30 of the petition which contains the reliefs sought in the petition. The paragraph provides as follows:-
1. THAT IT BE DETERMINED that the 1st Petitioner is entitled to be returned by the 3rd and 5th Respondents as having been duly elected as the Governor or Edo State by reason of having scored the highest number of lawful votes cast at the Governorship Election held on the 14th day of July, 2012.
2. IN THE ALTERNATIVE, THAT IT BE DETERMINED that the election of the 1st Respondent was invalid by reason that he was not qualified to run for the office of Governor of Edo state having not met the mandatory statutory requisite qualifications to contest in the election and other noncompliance with the provisions of the Electoral Act 2012 (as amended).
We must recollect that only paragraph 12(iv), 24 and 25 relating to academic qualification of the 1st Respondent were initially struck out. Their restoration means that automatically paragraph 30(2) survives as a relief.
Moreso when I agree with learned Appellant’s Counsel that the lower Tribunal was therefore wrong to have held that there is no valid ground supporting the relief in paragraph 30(2). The Tribunal came to this wrong conclusion because it failed to read the whole of the said paragraph. The 2nd relief is adequately supported by the ground contained in paragraph 8 of the petition which the lower tribunal held to be competent.
The remaining portions of the petition particularly paragraphs 12(i) – (iii), 13, 14-22 are still extant and can support the main grounds of the petition in paragraph 8 thereof to wit:
The grounds of this petition are as follows:
The petitioners say that the grounds of this petition are that the “PURPORTED ELECTION” for the office of the Governor of Edo state which took place on the 14th day of July, 2012 was invalid by reason Electoral Act 2010 (as amended). (Underlining mine)
paragraph 30(1) of the petition in my humbly view can still survive as a relief to the ground of non-compliance with the Electoral Act.
We are not at this stage concerned with the merit of the issues. This court and the apex court have always warned trial Tribunals to avoid short circuiting a petition on technical grounds. As much as possible the merit of a petition must be considered to allow politicians ventilate their grievances. I on my part have never supported the employment of technicality to derail the judicial process. All I am saying here is that there are issues to be tried. The merit of the issues would be ascertained at the trial.
In the circumstances, issue one being resolved in favour of the Respondents, issues 2,3,4, and 5 being resolved in favour of the Appellant, this appeal succeeds in part. It is hereby ordered that paragraphs 12(iv), 13(i) & (ii), 23, 24, 25 and 30(1) and 30(2) of the petition be and are hereby restored.
The ruling of the Governorship Election Petition Tribunal for Edo State delivered on 27/9/12 is hereby set aside. I hereby order that the petition be remitted back to the lower tribunal to be heard by another Panel to be constituted by the Ag President of this court. Appeal allowed in part. No order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: The Appellant along with the 1st Respondent and other candidates had participated in the Edo State Governorship election conducted by the 3rd Respondent, on 14th July, 2012. At the end of the polls, the 3rd Respondent declared the 1st Respondent as the winner of the aforesaid election and the latter was duly so returned.
The Appellant, not unnaturally, felt aggrieved with the return of the 1st Respondent and so the former filed a petition at the Edo State Governorship Election Petition Tribunal, holden at Benin City. Each set of the Respondents filed their respective replies to the petition and the petitioner filed replies to the 1st and 2nd Respondents’ Replies to his petition.
In the 1st, 2nd and 3rd – 5th Respondents’ Replies to the petition, they each incorporated some preliminary objections targeted at the hearing of the petition on merits. This was in compliance with paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended).
Thereafter, at the close of pleadings, the 1st respondent filed a motion on notice wherein he prayed for:-
“1. Leave to bring and argue this application before/outside the pre-hearing session.
2. An order striking out and/or dismissing the petition For being incompetent.
3. An order striking out paragraphs 8, 12(iv), 13(i), (ii) & (iii), 14(a-q), 15(a-k) 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29 and 30(i) and (2) of the petition, a fortiori striking out the entire petition.”
The 3rd 5th Respondents, also filed a motion on notice and prayed for the followings:-
“1. An order of this Honourable Tribunal granting leave to the Applicant to argue their applications before or outside pre-hearing session.
2. An order striking out or dismissing the petition for being inventive, mala fide, frivolous and a gross abuse of the process of the Honourable Tribunal.
IN THE ALTERNATIVE
3. An order of this Tribunal striking out the names of the 4th – 5th Respondents from the petition same of being proper parties to it.
4. An order striking out paragraphs 8, 12, 24, 25 and 30 of the petition.”
The two applications were heard together on 26th September, 2012 and the parties were ad idem that one ruling be delivered to cover them. The lower tribunal on 27th September, 2012 delivered its ruling wherein, the application of the 1st Respondent was granted in part. Hence paragraphs 12(iv), 13(i) & (ii), 23, 24, 25 and 30(i) & (ii) of the petition were struck out. However, the lower tribunal also ruled that the petition was to proceed to hearing on “the remaining surviving paragraphs and the 4th and 5th Respondents as parties to the petition”.
This interlocutory appeal is against the decision of the lower tribunal which heard the 1st and 3rd – 5th Respondents’ motion on notice at the interlocutory stage; the part of the ruling which held that the issue of non-qualification of the 1st Respondent was a pre-election matter and also that part which struck out paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(i) & (ii) of the petition.
The appeal was anchored on 17 grounds. In the Appellant’s brief of argument, five issues were formulated for determination, whilst the 1st Respondent identified three issues for determination in his own brief of argument. The 2nd Respondent in his brief of argument identified two issues for determination and on their part, two issues, were formulated for determination, in the 3rd – 5th Respondents’ brief of argument.
In considering and determining the appeal, I adopt the issues for determination as formulated by the Appellant. I shall resolve 1 separately and thereafter resolve issues 2 and 5 together and finally resolve issues 3 and4together.
The complaint in issue 1 is to the effect that having incorporated their preliminary objections in each of their Replies to the petition in accordance with paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended) the 1st and 3rd – 5th Respondents’ motion(s) on notice which were to all intents and purposes the same with their preliminary objections ought not to have been taken during the prehearing session of the Petition.
Now, paragraph 12(5) of the 1st schedule to the Electoral Act 2010 (as amended) Provides that:
“A Respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive Petition”.
To my mind, the replies of the 1st and 3rd – 5th Respondents wherein they each indicated some preliminary objections against the hearing of the petition, clearly complied with paragraph 12(5) of the 1st schedule to the Electoral Act 2010 (as amended). The question is, ought the 1st and 3rd – 5th Respondents to have filed their respective motion(s) on notice wherein their prayers as contained in the preliminary objections in the replies to the petition are in pari material with the said notices of motion which were targeted at the hearing of the petition on its merits? Undoubtedly, the 1st and 3rd – 5th Respondents reserved the right to incorporate their preliminary objections in their respective Replies to the petition in compliance with paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended). And in which case, the said preliminary objections were to be heard and determined by the lower tribunal, at the hearing of the substantive petition and not at the pre-hearing session.
It seems clear to me that the 1st and 3rd – 5th Respondents, equated an election petition with an ordinary civil action. For, in an ordinary civil action, the 1st and 3rd – 5th Respondents also possessed the right to have filed and moved their motion(s) on notice, prior to the hearing of a matter on its merits particularly where the challenge is against the competence of the action in court. But not so in an election petition, which is sui generic – in a class of its own! See BUHARI V. YUSUF (2003) 14 NWLR (Pt. 841) 446 at 498 -499.
I am of the firm and considered opinion that the apex court in PEOPLES’ DEMOCRATIC PARTY (PDP) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 3 ORS (2012) 7 NWLR (Pt.1300) 539 (2012) All FWLR (Pt. 639) 1052 had put the matter to rest as to what was expected of a Respondent, such as the 1st and 3rd – 5th respondents in this appeal, especially in view of the provisions of paragraph 47(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) which accommodates an objection by way of a motion on notice. Thus, where an objection is vide a motion on notice, the objection can be heard and determined during the pre-hearing session of an election petition, vide paragraph 47(1) of the 1st Schedule to the Electoral Act 2010 (as amended).
However, where an objection is incorporated in a Reply to the petition, the objection must await the hearing and determination of the substantive petition in accordance with paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended). Therefore, the intendment of paragraph 12(5) is not the same as paragraph 47(1) of the same 1st Schedule to the Electoral Act 2010 (as amended).
Indeed, the two paragraphs that is 12(5) and 47(1) are each extant, but they have different applications in an election petition. So, it is left for a Respondent seeking to take advantage of them to know what each of them is aimed at achieving. I do not think, a respondent, such as the 1st Respondent and 3rd – 5th Respondents in this appeal, had the right to have availed themselves of the two paragraphs, at the same time, which is tantamount to speaking from both sides of the mouth at the same time. They had to choose either applying paragraph 12(5) or paragraph 47(1) of the aforementioned 1st Schedule to the Electoral Act 2010 (as amended).
His Lordship, Muntaka-Coomassie, JSC succinctly stated at P.559 (Pt. 1300) of the Law report (supra) that:
“Where the law provides two methods or procedures for doing a thing, a party can choose any of the methods so provided. In the instant case, the Respondent chose to raise their objections under paragraph 12(5) of the First Schedule to the Electoral Act, 2010 as amended), and they were entitled to so act as was held by both the tribunal and the Court of Appeal”.
I think it is instructive to re-echo the opinion of my Lord, Fabiyi JSC at pages 564-565 of the same report wherein he admonished thus:
“I wish to stress the point that paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended) is an amendment designed to fast-track the hearing of election petitions which the 1999 Constitution (as amended) has provided time frames for the completion of same. If props the provisions of the constitution. It is intended in its entire ramification to compliment the provision of the Constitution emphasizing on quick dispensation of election matters in tandem with the yearning of the people”.
For the foregoings, I resolve issue 1 in favour of the Appellant.
Issues 2 and 5, relate to the question of the non-qualification of the 1st Respondent to contest the Edo State Governorship election of 14th July, 2012 and whether or not it is a pre-election matter wherein the lower tribunal held that it had no jurisdiction to entertain and determine, in view of paragraph 13(i) & (ii), 23 and 25 of the petition.
The lower tribunal at page 879 of the records of appeal, found that:
“From the manner paragraph 25 of the petition is drafted, it conveys the message challenging the academic qualifications of the 1st Respondent presented to INEC, particularly as in or along with Form CF001 in 2007 and 2012 do not belong to him. In other words a false declaration was made or the documents presented are false. In as long as we do not dispute the fact that the tribunal is vested with Constitutional jurisdiction to inquire into the qualification or non-qualification of a candidate to an election as submitted by Mr. Akpofure SAN, such power if limited by the provisions of Section 31(1)-(5) of the Electoral Act 2010 as amended.”
Undoubtedly, the lower tribunal held no difficulty in finding that the educational and/or academic qualifications of the 1st Respondent was in issue before it and that it had the power to inquire into and
determine the qualification or non-qualification of 1st Respondent to have participated in the Edo State Governorship election of 14th July, 2012. The lower tribunal indeed :properly opened” its eyes and gave a holistic reading to the entire petition in reliance on HOPE DEMOCRATIC PARTY V. INEC (2009) 8 NWLR (Pt. 1143) 297 at 315. However, instead of venturing into the consideration and determination of the alleged non-qualification of the 1st Respondent as it was constitutionally empowered, the lower tribunal sadly, frittered away such power when it shot itself on the foot saying its power was limited by the provisions of Section 31(1) – (6) of the Electoral Act 2012 (as amended).
Needless to say that it is unacceptable for the lower tribunal to have gloried the provision of an Act to that of the Constitution. It is tantamount to taking notice of an ant with the presence of an elephant !
The supremacy of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is irrefutable and non – debatable. Therefore, all Acts of the National Assembly or Laws of the State Houses of Assembly bow to it in obeisance and without question. SEE EZE V. GOVERNOR OF ABIA STATE (2006) 15 NWLR (PT. 1216) 324 AT 349; SPEAKER, KOGI STATE HOUSE OF ASSEMBLY V. ADEGBE (2010) 10 NWLR (PT. 12011 45 AT 69; FASAKI FOODS NIG LTD. V. SHOSANYA (2006) ALL FWLR (PT. 320) 1059 AT 1076-1077 OR (2006) 10 NWLR (PT. 987) 126 AT 148; ATT. GEN. ABIA STATE V. A.G. FEDERATION (2006) 16 NWLR (PT. 1005) 265 AT 381-382; HON. WUNUKEN ATOSHI & ORS V. ATTORNEY GENERAL OF TARABA STATE & ORS (2012) ALL FWLR (PT.635) 352 AT 386 – 387, just to mention a few.
In any event, Section 31(1) (6) of the Electoral Act 2012 (as amended) did not contravene any provision of the 1999 Constitution. Subsection (5) of Section 31 of the said Electoral Act, 2010 (as amended) clearly states that an aggrieved party who is not satisfied with any information supplied by a candidate in an election, may approach the Federal High Court, the High Court of a State or the High Court of the Federal Capital Territory, seeking a declaration that the information given by the candidate, is false. Hence the aggrieved party has a choice to go or not to go to any of the High Courts above mentioned to ventilate his grievance or suspicion against a candidate to an election on the ground that the information that the latter supplied to the INEC was false. And where such an aggrieved person chose not to go to any of the said High Courts he cannot be said to have lost his chance of raising the same grievance at an election petition tribunal, ante the conduct of an election wherein the candidate participated.
This is moreso where an election petition is filed and anchored on Section 138(1) (a) of the Electoral Act 2010 (as amended).
The apex court in a more recent decision in OCHEJA EMMANUEL DANGANA V. HON. A. A. A. USMAN & ORS (2012) 208 LRCN 92, had put the matter regarding the power of an election tribunal to determine the question of qualification or non-qualification of an elected candidate, whose election is challenged pursuant to section 138(1) (a) of the Electoral Act, 2010 (as amended), beyond any argument. My Lord, Onnoghen, JSC at pages 130-131 of the report opined thus:
“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 High Courts have jurisdiction to deal with the matter. I do not agree that 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 an election matter.
However, in the instant case, Section 138(1) (a) of the Election 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.”
This is instructive and with that, I am done on issues 2 and 5 which I resolve in favour of the Appellant.
Issues 3 and 4 dovetail into each other. They are in respect of the striking out of paragraphs 12(iv), 23,24 and 25 of the petition on the ground that they were vague, imprecise and scanty vis-a -vis the striking out of reliefs sought by the Appellant in paragraph 30(i) & (ii) of the petition.
Earlier in this judgment I referred to page 879 Vol .2 of the records of appeal wherein the lower tribunal said:
“We have properly opened our eyes and gave a global reading to the whole petition as held in HOPE DEMOCRATIC PARTY V. INEC (2009) 8 NWLR (Pt. 1143) 297 at 315 and found that the qualification of the 1st respondent is being challenged…..”
Now, a global or community reading of the petition entails a consideration of the entirety of all the paragraphs of the petition with the petitioner’s replies to the Respondents’ Replies to the petition, especially as they relate to the challenge against the qualification of the 1st Respondent as a candidate in the Edo State Governorship election of 14th July, 2012. For example, at paragraphs 6 and 7 (a) (d) of the Petitioner’s reply to the 2nd Respondent’s Reply, see page 603 to 604 Vol. 2 of the records of appeal, particulars of the alleged non-qualification of the 1st Respondent were profusely pleaded therein. So, it cannot be said that the facts supporting the allegation of the non-qualification of the 1st Respondent, were imprecise, vague and scanty.
They were not. Instead they are direct and profuse. I am of the considered opinion that paragraphs 12(iv), 24 and 25 of the petition, were erroneously struck out by the lower tribunal. It follows too that the said tribunal was also in error to have struck out paragraph 30(2) because relief (2) thereof is tied to paragraphs 12 (iv), 24, 25 of the petition and paragraphs 5 and 7(a) – (d) of the Petitioner’s reply to the 2nd Respondent’s Reply.
With respect to relief l vide paragraph 30(1) of the petition, it is indisputable that paragraphs 19, 20, 21 and 23 of the petition clearly evince a complaint of some anomalies relating to corrupt practices at the conduct of the election of 14th July, 2012 which tantamount to non – compliance with the electoral principles legislated in the Electoral Act 2010 (as amended). Hence, the said paragraphs 19, 20, 21 and 23 read together with paragraph 8 of the petition, clearly supported relief 2. In other words the lower tribunal ought not to have struck out paragraph 30(1) and (2) of the petition. I therefore resolve issues 3 and 4 in favour of the Appellant.
Before I draw the curtain in this judgment, I wish to reiterate the view of my learned brother – J.S. IKYEGH, J.C.A., in DURO V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2011) 21 W.R.N. 83 at P.117, that:
“Election petition is a sensitive matter. The stakes are high. Expectations are great. So are emotions. It affects a cross- section of the electorate represented by the disputants: call it a group action or representative litigation. Utmost case should therefore be taken to ensure it is heard on the merits. By so doing, truth would be revealed from the dispute. Democracy would feel fulfilled. The vote would count and be judicially vindicated.”
In the circumstances of this appeal, l am of the firm and considered opinion that the integrity and credibility of the 1st Respondent, would be better enhanced if the challenge,especially to his qualification as a candidate at the 14th July, 2012 election which threw him up as the Governor of Edo State, were ventilated and thrashed out/settled at the lower tribunal. I say no more.
It is for these few comments and the fuller reasons contained in the lead judgment of my Lord HELEN MORONKEJI OGUNWUMIJU, JCA, with whom I agree, that this appeal is not lacking in merits. It is accordingly allowed.
I abide by the consequential orders contained in the said lead judgment, accordingly.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU JCA. I am in total agreement with the reasoning and conclusion therein. Election Petitions are sensitive nature. Parties should be allowed to ventilate their grievances without being gagged with unnecessary technicalities.
For the above reasons and the fuller reasons comprehensively explained in the lead judgment, I hold that this appeal succeeds in part. I resolve issue (1) as formulated by Appellant’s Counsel in favour of the Respondents and other issues in favour of the Appellant. I also order that paragraphs 12(iv), 13(i) & 13(ii), 23, 24, 25 and 30(i) and 30(ii) of the petition be restored.
The ruling of the Governorship election Petition Tribunal for the Edo State delivered on 27/9/2012 is hereby set aside.
This petition is to be remitted back to the tribunal to be heard by a newly constituted Panel.
Appearances
Chief E.L. Akpofure, SAN with him S. O. Agwinede, Esq, F.E. Ulinfun, Esq., P.O.
Itua Esq, K.I. Aigbe, Esq, D. O. Inegbeboh Esq. P.O. Akpofure Esq., N.M. Aladum
(Mrs) V. O. Idiagho Esq and F.E. Olefo Esq.For Appellant
AND
Chief Wwole Olanipekun SAN, with him Ricky Tarfa SAN, O. A. Omonuwa SAN,
Abiodun Amole Esq, Lasaki Olalekan Esq., O.O. Samuel Esq., O. Ohenhen Esq.,
Oladipo Osinowo Esq., F. Erewele Esq., Sir Adams Aliu Esq. v. O. Abiri Cmissi Esq.
O.A. Adejumo (Mrs). for the 1st Respondent.
Adetunji Oyeyipo SAN with him Ken Mozia SAN, Rotimi Oguneso SAN, Nnamonso
Ekanem Esq., Osagie Igbinomwanhia Esq., R. O. Oaihimire (Mrs.), G.A. Oladejo
Esq., F. omo -osadiaye Esq., A. O. Eikhor Esq., Osarogie Ogbake (Mrs)., Santos
Owootori Esq., and Taudeen Alade Esq.For Respondent
