OLUWAROTIMI O. AKEREDOLU & ANOR v. RAHMAN O. MIMIKO & ORS.
(2013)LCN/6088(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2013
CA/AK/EPT/GOV/04/13
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. OLUWAROTIMI O. AKEREDOLU (SAN)
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. RAHMAN O. MIMIKO
2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
THE POSITION OF LAW ON AN ALLEGED CONTRAVENTION OF A PENAL PROVISION
An alleged contravention of a penal provision will be regarded as such when it is duly made and proved in a competent court with requisite jurisdiction to be such a contravention and not otherwise. The complaint or allegation made by the Appellants herein, even if it has substance or legal basis, which to me seemed somewhat askance and skewed, I must say that it has been made before an obviously wrong forum. My standpoint is buoyed inter alia by the provision of Paragraph 12 of the Code of Conduct for Public Officers, Fifth Schedule to the 1999 Constitution (as amended). It provides:
“Any allegation that a public officer has committed a breach of or has not complied with the provisions of this Code shall be made to the Code of Conduct Burea” PER OREDOLA, J.C.A.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): On the 20th day of October, 2012, election was conducted by the 3rd Respondent herein, into the office of Governor of Ondo State. At the election, a number of political parties and their candidates participated. The 1st Appellant Oluwarotimi O. Akeredolu, SAN was sponsored by the 2nd Appellant – Action Congress of Nigeria, (ACN). while the 1st Respondent Rahman O. Mimiko was the candidate of 2nd Respondent – Labour Party, (LP). Upon the conclusion of the election, the 3rd Respondent- Independent National Electoral Commission (INEC) declared the 1st Respondent – Rahman O. Mimiko as the winner of the said election into the office of Governor of Ondo State of Nigeria. His return was predicated upon the proclamation that he scored the majority of lawful votes cast at the election and fulfilled other constitutional requirements.
Appellants alongside other contestants were dissatisfied with this development. On 9th November, 2012, the Appellants herein challenged the return of the 1st Respondent at the tribunal, vide an Election Petition, registered as Petition No.EPT/OD/GOV/02/2012, wherein they contended in essence that the election was invalid by reason of corrupt practices and /or non-compliance with the provisions of the Electoral Act, 2010 (as amended). The Respondents maintained a different standpoint and insisted that the election was conducted in substantial compliance with the relevant and applicable laws – constitutional and statutory.
Pleadings were duly filed and exchanged. The Respondents in their respective replies gave Notices of Preliminary Objection and also filed formal notices thereon, wherein they challenged the competence of the petition generally and specific paragraphs therein, all on diverse grounds. The Appellants herein, also filed motions which inter alia related to the competence of 2nd Respondent’s reply to the petition. On the whole, 32 applications were filed before the tribunal by five different sets of Respondents, both contentious and non-contentious.
It is significant to note that learned Counsel for all the parties, after due consultations agreed inter alia to the consolidation of the petitions, inclusive of all the motions and with the tribunal delivering one ruling which will incorporate the whole lot, particularly the contentious ones. The tribunal in its ruling which was delivered on 22nd January 2013 agreed with the position as reported and taken by the learned Counsel for the parties, expressed its gratitude to them and ordered accordingly. Eventually, on 4th February, 2013 the tribunal delivered its ruling in respect of the various motions filed by the parties before it.
In the case of the Appellants herein, the tribunal somewhat substantially upheld parts of the preliminary objections raised by the Respondents and dismissed the application by the Appellants which sought the invocation and application of paragraph 12 [5] of the 1st Schedule to the Electoral Act, 2010 (as amended). It also dismissed the Appellant’s preliminary objection to the competence of 2nd Respondent’s reply and 2nd Respondent’s preliminary objection. The said decision and the dissatisfaction of the Appellants therewith, gave rise to the instant appeal which was filed on 13th February 2013. It contained ten Grounds of Appeal, which included inter alia, that the tribunal delivered a single ruling in respect of all the applications.
In accordance with the rules of this Court, parties duly filed their respective briefs of argument. Appellants’ brief was filed on 4th March, 2013. It was settled by Chief Akin Olujinmi, CON, SAN and his team of lawyers. Appellants also filed their replies to 1st, 2nd and 3rd Respondents’ briefs on 15th March, 2013. The issues for determination as identified in the said Appellants’ brief are as follows:
“1. Whether the trial Tribunal correctly applied the principles of consolidation in the way and manner it handled the consolidated petitions and the consolidated applications in respect of which the tribunal delivered one single ruling. (GROUND 1 OF APPEAL).
2. Whether in view of settled principles of law, the construction placed on the combined provisions of Paragraph 12 (5), 18(7)(d), and 53(5) of the 1st Schedule to the Electoral Act 2010 (as amended) and the decision of the Supreme Court in PDP v. INEC (2012) 7 NWLR (Pt.1300) 538, by the trial Tribunal can be justified. (GROUNDS 3, 4, 5 OF APPEAL),
3. Whether on a proper construction of Paragraphs 4(1) (d) and 17 of the 1st Schedule to the Electoral Act 2010 (as amended), the relevant provisions of the Federal High Court (Civil Procedure) Rules 2009, the Constitution of the Federal Republic of Nigeria 1999 (as altered) and the Electoral Act 2010 (as amended), the striking out of specified paragraphs of the Appellants’ Petition by the Tribunal on the grounds assigned by it was right in law. (GROUNDS 6, 7, 8, 9 OF APPEAL)
4. Whether the trial Tribunal was justified in law in striking out Paragraphs 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125 and 126 of Appellants’ petition in respect of Okitipupa and Ilaje Local Government Areas of Ondo State, (GROUND 10 OF APPEAL).
5. Whether the 2nd Respondent’s processes signed and filed by Prof. Wahab Egbewole are not incompetent in view of Paragraphs 1 and 2(b) of the 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). (GROUND 2 OF APPEAL).”
The 1st Respondent’s brief of argument which was settled by Chief Wole Olanipekun, OFR, SAN, FCIArb, was filed on 11th March, 2013. It embodied a Notice of Preliminary Objection with arguments thereon having been incorporated therein. Additionally, a formal notice was filed on 15th March, 2013 in respect thereto and which said motion, the learned Appellants’ Counsel made the point that it was served on him on 18th March, 2013. The issues identified by the 1st Respondent for determination in this appeal are reproduced below:
“1. Having regard to the agreement of Counsel, the nature of election petitions and the state of the law, whether the tribunal was not right in the way and manner it handled the consolidated applications- Ground 1.
2. Whether having regard to the nature of the applications filed and the state of the law on the applications, the tribunal was not justified in taking the applications at the time it did- Grounds 3, 4, 5.
3. Whether the tribunal was not right in striking out Paragraphs 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 26, 27, 28, 29, 38, 39, 40, 44, 45, 46, 48, 49, 51, 55, 71, 76, 77, 78, 79, 79, 80, 81, 85, 102, 103, 110, 111, 112, 113, 114, 120, 123, 124, 125, 126, 130, 146, 149, and 181; Paragraphs 30, 31, 32, 33, 34, 35 and 127; Paragraphs 86, 91, 121, 132, 143, 144 and 145 of the Appellant’s petition- Grounds 6,7, 8, 9.
4. Whether the 1st Respondent not being the winner of the election in Okitipupa and Ilaje Local Government Areas of Ondo State and the winner of the election in the said Local Government Areas not being a party to the Appellants’ petition, the Tribunal was not right in striking out Paragraphs 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, and 126 of the Appellants’ petition, touching on the two Local Governments Areas – Ground 10”
The 2nd Respondent’s brief of argument was filed on 11th March, 2013. It was settled /prepared by Yusuf O. Ali, Esq., SAN and his team of lawyers. As listed therein, the issues for determination are as follows
“1. Whether the Honorable trial Tribunal was not right in its decision that Professor Wahab Egbewole competently signed processes filed before it and in dismissing the Appellants’ objection on that ground especially since the objection was taken before the wrong forum. (Ground 2)
2. Whether the Honorable trial Tribunal was in error in the way and manner it wrote and delivered its ruling on the consolidated applications and whether any miscarriage of the justice had been occasioned on any of the parties thereby. (Ground 1)
3. Whether the trial Tribunal was not right in taking and determining the objection filed by the Respondent that challenged its jurisdiction and in dismissing the objection of the Appellant prayed for the deferment of the said objection until the end of trial having regard to the state of the law in this matter. (Grounds 3, 4 and 5)
4. Whether the trial Tribunal was not right in holding that several paragraphs of the petition relate to Pre-Election matters and in striking out such paragraphs alongside others which are vague, general, evasive and nebulous as well as paragraphs relating to criminal allegations against named persons who were not joined as parties to the proceedings (Grounds 6, 7, 8 and 9),
5. Whether the Honorable trial Tribunal was not right in striking out paragraphs of the petition dealing with Ilaje and Okitipupa Local Government Areas when the 2nd Respondent did not win majority of the votes cast in the said Local Government Areas and when the Peoples Democratic Party (PDP) that won in the said Local Government Areas and would be affected by any order in respect thereof was not joined as a party to the Petition. (Ground 10)”
The 3rd Respondent’s brief which also embodied a Notice of Preliminary Objection and incorporated arguments thereon in the said brief, was also filed on 11th March, 2013. The said brief was prepared by a team of lawyers, led by Chief Adegboyega Awomolo, SAN, FCIArb, FNIALS. The 3rd Respondent also filed a formal notice in respect thereof. The issues formulated by the 3rd Respondent for determination of this appeal are as follows:
“1. Whether the Tribunal was in error which occasioned a miscarriage of justice in the manner it delivered its Ruling with respect to the consolidated application.
Ground 1
2. Whether the Tribunal was correct when it dismissed Appellants’ application to strike out the 2nd Respondents processes signed by Professor Wahab Egbewole who was employed by a University. Ground II
3. Whether the Tribunal was correct when it entertained the Respondents’ peremptory challenges to the Petition when the Respondents had raised these objections in their respective replies. Ground III
4. Whether the Tribunal was correct when it struck out certain paragraphs of the Petition for:
i. being vague, generic, speculative, nebulous and imprecise
ii. raising pre-election matters;
iii. lack of jurisdiction founded on complaints in areas where the Peoples Democratic Party and not the 2nd Respondent won,
iv. raising allegations of commission of crimes against persons who were not named in the Petition. Ground IV, VII, VIII, IX and X”
Looking closely at the issues formulated in the various briefs and having regard to the decision of the tribunal, I consider the issues formulated by the Appellants as being adequate/apt for the determination of this appeal. I adopt them for this purpose.
The appeal was heard on 19th March, 2013. At the hearing both learned Counsel for the 1st Respondent-Chief Wole Olanipekun, SAN and learned Counsel for the 3rd Respondent, Dr. Ikpeazu, SAN informed the Court that they had filed their respective Notices of Preliminary Objection challenging the competence of Grounds 1, 7, 8 and 10 of the Grounds of Appeal. Learned senior Counsel, Chief Akin Olujinmi, SAN adopted and relied on the Appellants brief and reply briefs. He also proffered oral arguments in amplification thereon. He then urged that the appeal be allowed. On the objections raised against four out of the ten Grounds of Appeal, we were urged to discountenance the same. Learned Counsel for the Respondents also adopted and relied on their respective reply briefs in urging us to dismiss the appeal.
In their oral submissions, they made references to cases on their additional list of authorities.
I have given adequate considerations to the Preliminary Objection raised by the learned Counsel for the 1st and 3rd Respondents respectively, the grounds and arguments canvassed thereon and incorporated in their briefs, coupled with the response of the Appellants as contained in their reply brief. I am of the considered viewpoint that the grounds of objection are unsustainable and should be discountenanced and they are accordingly discountenanced by me.
I intend to resolve the issues as adopted in the following manner. Issue 5 alone. Issues 1 and 2 together, closely followed by issues 3 and 4 together.
ISSUE 5
On 2nd January 2013, the Appellants filed a Notice of Preliminary Objection wherein they challenged the jurisdiction of the tribunal to entertain the 2nd Respondent’s reply to the petition dated 3rd December, 2012 and Motion on Notice dated 21st December, 2012. The objection was grounded on the points; firstly that the said 2nd Respondent’s reply, “is invalid and unconstitutional having been prepared and signed by Prof. Wahab O. Egbewole, (who is a Professor of Law in the Faculty of Law of the University of Ilorin, Ilorin and thus a public officer) in contravention of the Fifth Schedule to the 1999 Constitution as amended.” Secondly, that the 2nd Respondent’s motion dated 21st December, 2012 was “field on the basis of the said invalid reply and in contravention of Paragraph 12 (5) of the First Schedule to the Electoral Act, 2010 as amended,” having been previously raised in the said reply.
The objection was duly heard by the tribunal on the basis of written addresses filed in respect thereof by learned Counsel for the parties, coupled with oral submissions made thereon. The tribunal in its ruling thereon, found and stated thus:
Our resolve is that not only do the petitioners lack the locus standi to initiate proceedings under the 5th Schedule to the Constitution, we have no jurisdiction to entertain any complain arising under the 5th Schedule to the Constitution. Even if we have any such jurisdiction we hold that the Act Cap 390 LFN exempts Prof, Wahab Egbewole from the impacts of Paragraphs 1 and 2 (B)of the 5th Schedule to the Constitution. In our view, he can, and has validly signed the replies to the petitions under reference and the motion dated 21st December 2012. The petitioners’ Notice of Preliminary Objection dated and filed before this Tribunal on the 02/01/2012 is hereby dismissed for lacking in merit.”
Learned senior Counsel, Chief Akin Olujinmi, SAN for the Appellants in arguing this issue, submitted that it is within the general jurisdiction of the tribunal to consider whether a process filed before it is valid or not and thus determine whether the reply signed by Prof. Egbewole was validly before the tribunal. It was argued that the issue involved, “is not an invitation to the tribunal to try Prof. Egbewole for infraction of the Code of Conduct.” He cited the case of Agip (Nig.) Ltd. V. Agip Petroli International & Ors. (2010) 42 NSCQR 167/237 and submitted, “that the preparation, signing and filing of the processes of 2nd Respondent by Prof. Egbewole constitutes an illegality by dint of paragraph 1 and 2 (b) of the 5th Schedule to the 1999 Constitution (as amended),” and which the tribunal could not ignore.
Finally, citing and placing reliance on Fasakin Foods (Nig.) Ltd v. Shosanya (2006) All FWLR (Pt. 320) 1059; Ekule Farms Ltd. V. Union Bank of Nig. Plc (2006) All FWLR (Pt. 319) 895; Nigerian Ports Authority v. Eyamba (2006) All FWLR [Pt.320] 1022; Attorney General of Abia State v. Attorney General of the Federation (2006) all FWLR (Pt.338) 604, it was the submission of learned Appellants’ Counsel that, “by virtue of Section 1 (3) of the 1999 Constitution (as amended) as well as Section 315 (3) (d) of the same Constitution, the provisions of Paragraph 1 and 2 (b) of the 5th Schedule thereto overrides the provisions of the Regulated and other Professions (Private Practice Prohibition (Law Lecturers Exemption) No. 2 Order, 1992 which are inconsistent therewith and ought to be declared invalid.”
In the 2nd Respondent’s brief and in response to this issue, learned 2nd Respondent’s Counsel, Mallam Yusuf O. Ali, SAN submitted, “that under the law it is only the Attorney General of the Federation (AGF) who is vested with power to complain of violation of Code of Conduct.” The case of Nwankwo v. Nwankwo (1992) 4 NWLR (Pt.238) 693 @ 708 D-H was cited in aid of this submission. He added, that the Appellants who are not the Attorney General of the Federation, cannot be heard to complain of the alleged breach of Code of Conduct and therefore “lack the requisite locus standi in respect thereof. Reference was made to and reliance placed on Ayambe v. The State (1986) 1 NSCC 37 @ 38 – 39.
In yet another submission, the learned senior Counsel for the 2nd Respondent stated that the tribunal was established to handle election petitions and “is without power to entertain any complaint dealing with the alleged breach of Code of Conduct.” In addition to Nwankwo (supra), the case of Dr. Geoffery Ogbuagu (1981) 2 NCLR 680 @ 680 was called in aid of this submission.
Finally and without conceding, it was submitted that the extant and preserved law in this regard is the Regulated and other Professions (Private Practice) Prohibition Act, Cap. 390 LFN and Regulated and other Professions (Private Practice) Prohibition (Law Lecturers Exemption) No. 2 Order, 1992. Additionally, that the objection taken by the Appellants, “is in the realm of technicalities which has been consigned to the background in the quest to do justice in the current dispensation.” We were referred to the pronouncement of Kekere-Ekun, JCA in a somewhat similar situation in the case of Fatoki v. Baruwa (2012) 14 NWLR (pt.1319) 1 at 17.
I have given consideration to Appellants’ response on this issue in Appellants’ reply brief to 2nd Respondent’s brief of argument and the cases of Oloyo v. Alegbe (1983) All NLR 387 and Sofekun v. Akinyemi (1980) All NLR 153 cited and relied upon therein. I do not intend to rehash/review the same.
Without mincing words, I perceive the objection raised by the Appellants in this regard as crying wolf where there is none and a form of attack from an ambush. The tribunal was therefore in the right when it declined to be dragged into any murky waters on this issue. Indeed, without a valid complaint, the issue of invalidity of the process signed by Prof. Egbewole would be a non starter. This is more so, because the complaint and the thing being complained against are joint and somewhat inextricably intertwined/interwoven. Thus, without assumption cum acquisition of jurisdiction in the first instance, pronouncement cannot be made by the tribunal on the competence of the said 2nd Respondent’s reply. The question then is, does it have the requisite jurisdiction? I will answer that in the negative.
Again, can it be rightly said as argued by the learned Counsel for the Appellants, that Prof. Egbewole prepared and signed the 2nd Respondent’s reply to the petition? The 2nd Respondent’s reply in question which was signed by Prof. Egbewole listed nine legal practitioners as Counsel for the 2nd Respondent. Furthermore, the Motion on Notice filed on 24th December, 2012 and under contention also listed nine legal practitioners as 2nd Respondent’s Counsel. What is more, the said motion was signed by Yusuf O. Ali, SAN. It is thus glaring as contended by the learned Counsel for the 2nd Respondent, that apart from Prof. Egbewole, “several other lawyers including Senior Advocates of Nigeria are co-authors of the reply and motion on notice.” Hence, the preparation of the process was a team affair and the fact that Prof. Egbewole signed it will be of no moment.
An alleged contravention of a penal provision will be regarded as such when it is duly made and proved in a competent court with requisite jurisdiction to be such a contravention and not otherwise. The complaint or allegation made by the Appellants herein, even if it has substance or legal basis, which to me seemed somewhat askance and skewed, I must say that it has been made before an obviously wrong forum. My standpoint is buoyed inter alia by the provision of Paragraph 12 of the Code of Conduct for Public Officers, Fifth Schedule to the 1999 Constitution (as amended). It provides:
“Any allegation that a public officer has committed a breach of or has not complied with the provisions of this Code shall be made to the Code of Conduct Burea”
It is instructive and significant to note that the jurisdiction of the tribunal is specific. It is circumscribed and highly curtailed. Additionally, by the express provision of the Fifth Schedule to the 1999 Constitution, it is precluded/excluded from entertaining talk less of determining any allegation or claim bordering on the said Fifth Schedule. Again, it has not been argued that Prof. Egbewole has not been called to the Nigerian Bar and thus disentitled from practising law as a Barrister and Solicitor of the Supreme Court of Nigeria. To my mind, if a Professor of law is debarred from practicing law, I wonder what else he is expected to practice or be involved with.
I agree with the standpoints maintained by both the tribunal and the learned Counsel for the 2nd Respondent, that the tribunal is a wrong venue/forum for the complaint (if any) made by the Appellants against Prof. Egbewole. The point sought to be canvassed by the Appellants may be a debatable/arguable point for another day and another forum, but definitely not today and not for the tribunal as a forum or this Court as an audience. The fifth issue is accordingly resolved in favour of the 2nd Respondent.
ISSUES 1 & 2
Learned senior Counsel for the Appellants commenced his arguments on both issues by tracing and stating the principles of law relating to consolidation of cases as settled by the Supreme Court and this Court. He referred to a host of cases thereon, inclusive of Haruna & Ors. V. Modibbo & Anor. (2004) 16 NWLR (Pt.900) 487 at 559; Nwaeze v.Eze (1999) 3 NWLR (Pt.595) 410 at 416, Alaribi v. Nwankpa (1999) 4 NWLR (Pt.600) 551 at 560. Habib (Nig.) Bank Ltd.v. Opomulero (2000) 15 NWLR (pt.690) 315 at 333, Orji v. Ugochukwu (2009) 14 NWLR (Pt.1161) 207 at 302 303 to mention a few.
Paragraph 3.06 at page 6 of Appellants’ brief of argument, impugned some aspects of the tribunal’s ruling on the basis that, “it is difficult to discern which petition or objection was being discussed or addressed by the learned members of the Tribunal.” References were made to pages 455, 519, 521 and 523 of the record of appeal. I must say right away and on this score, that I have perused/scrutinized the pages referred to and I am unable to share the Appellants’ standpoint in this regard.
The contention of the learned senior Counsel for the Appellants on the second issue is on the point that the tribunal’s decision, “appears to rest on the interpretation it had placed on Paragraphs 18 (7) (d) , 47 (1) and 53 (5) of the First Schedule to the Electoral Act, 2010 (as amended) to the exclusion of the impact of Paragraph 12 (5) thereof as pronounced upon by the Supreme Court in PDP v. INEC (2012) 7 NWLR (Pt.1300) 538. Thus, according to the Appellants, the tribunal rendered the provision of Paragraph 12 (5) of the First Schedule futile and nugatory. Also, that the tribunal deliberately refused to follow the construction placed thereon by the Supreme Court in PDP v. INEC (supra) that is binding on it. Learned senior Counsel for the Appellants marshaled extensive arguments on rules of construction vis-a-vis provisions of Paragraphs 12 (5), 18 (7) (d), 47 (1) 55 (2) and (5) of the First Schedule to the Electoral Act, 2010 (as amended). Further submission was also made on the doctrine of election and the impact or import of such an election. According to the learned Appellants’ Counsel, the Respondents elected and raised their objections in their replies, they are thus bound and cannot subsequently raise the same objections by way of motions on notice. Appellants also argued that the reasoning of the tribunal that the objection raised by the Respondents, ” being an issue of jurisdiction should be resolved first completely missed the point,” for certain reasons stated therein.
Learned senior Counsel for the 1st Respondent, Chief Wole Olanipekun, SAN in his response on the first issue, raised a question which he considered as crucial, thus: “in the case at hand, did the Tribunal give separate rulings for the application?” He answered the question in the affirmative and thereafter reviewed and analysed all that transpired before the tribunal. Reliance was placed on a host of decided cases of the apex Court and this Court as authorities for his standpoint. The cases include Nwankwo v. Ibeto (2011) 2 NWLR (Pt.1231) 209 at 228; Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410 at 416; Olowu v. B. S. Ltd. (2010) 2 NWLR (Pt.1178) 310; Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587 at 601; Machika v. Katsina State House of Assembly (2011) 3 NWLR (Pt.1233) 15 at 41 – 42, Tuah v. Michael (2010) 10 NWLR (Pt.1203) 519 at 541 and Ovunwo v. Woko (2011) 6 – 7 SC (Pt.1) 1 at 20. Furthermore, that neither did the Appellants show or suffer any miscarriage of justice by the procedure adopted by the tribunal in writing the ruling being railed against by the Appellants.
On the second issue regarding the correctness or otherwise of the tribunal being justified in taking the applications when it did, learned senior Counsel for the 1st Respondent pointed out that, “on the part of the Respondents, some of their applications challenged the jurisdiction of the Tribunal to entertain the petitions while the Petitioners/Appellants’ application included applications to declare the 2nd Respondent’s Reply as incompetent.” He referred to page 69 of the record of appeal and the impact/import of the notice by the 1st Respondent contained therein, which left no discerning mind in doubt of his intention to raise a preliminary objection, before the hearing or at the close of the hearing. The point was also made that the heavy reliance placed on the case of PDP v. INEC (supra) by the Appellants was misplaced and uncalled for. Additionally, that having served due notice; what the 1st Respondent did was merely to elect and adopt “one of the two options available to him,” as to when to raise the preliminary objection to the petition.
Learned senior Counsel for the 1st Respondent also submitted that the tribunal “was very correct when it distinguished the case of PDP v. INEC (supra) and the case of Airhiavbere v. Oshiomole & 4 Ors. (Unreported) Appeal No.CA/B/EPT/320/12. He added that the tribunal was right when it considered Paragraphs 12 (5), 18 (7) of the 1st Schedule to the Electoral Act, 2010 (as amended) as a whole before arriving at its decision, which according to the learned senior Counsel, is the correct one.
Finally, he stated that the objection raised by the 1st Respondent being jurisdictional in nature and with jurisdiction being the life of any proceedings, it must be raised early in the proceedings and firstly resolved by the tribunal or court. He called in aid and quoted copiously from the case of Okere v. Yar’ adua (2008) 12 NELR (pt.1100) 95 at 134 E – G.
On his part, the learned senior Counsel for the 2nd Respondent, argued both issues as issues 2 & 3 in its brief. Let me say from the onset that I do not intend to rehash submissions by the learned senior Counsel for the 2nd Respondent, which tallied with the ones earlier made by the learned senior Counsel for the 1st Respondent and reviewed above.
Learned senior Counsel for the 2nd Respondent contended that the tribunal obviously adhered to the rules regarding consolidation of suits. That it gave the four petitions distinct mention/identity with adequate prominence to each application and the petition to which it pertains. He added, that a single ruling thereon does not and cannot vitiate the proceedings or principles of consolidation. He referred to Machilla v. K.S.H.A. (2011) 3 NWLR (Pt.1233) 15 at 40.
On the third issue formulated by the Appellants and adopted for determination of this appeal, the learned senior Counsel for the 2nd Respondent submitted that, “the authorities have crystallized that a Court must interprete provisions of a statute wholly and comprehensively,” and as such, Paragraph 12 (5) of the First Schedule to the Electoral Act, 2010 (as amended) should not be read in isolation. He added that the 2nd Respondent’s objection being jurisdictional in nature, must be determined firstly and with promptness/promptitude. He cited the case of Attorney General Rivers State v. Attorney General Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31 on the position of the law, “that any matter decided without jurisdiction however beautifully concluded is invalid, null and void.”
On rules of construction which was extensively argued by the learned Counsel for the Appellants, it was the submission of learned senior Counsel for the 2nd Respondent, that the provisions of the paragraphs of the First Schedule under consideration, “are clear, unequivocal and unambiguous.” Hence, recourse need not be had to rules of interpretation in order to appreciate their purpose.
On the part of the learned senior Counsel for the 3rd Respondent, he maintained that the tribunal cannot be vilified by the Appellants for doing exactly that which they advocated and endorsed. The point was also made that cases including Nwaeze v. Eze (supra) relied upon by the Appellants did not present similar facts to what transpired in the instant case and thus distinguishable. He referred to Paragraph 50 of the 1st Schedule to the Electoral Act, 20L0 (as amended) and submitted that it is not the “law that if cases are consolidated, then the fusion remains intact for the duration of the suit.” He added, that the said Paragraph 50 being a special provision has taken away the effect of a general provision. Reliance was placed on Dada v. Oshinkalu (1995) 5 NWLR (Pt.398) 755; Ogun State v. Attorney General Federation (2002) 18 NWLR (Pt. 1006) 527 for this submission. It was further pointed out that the tribunal, “pronounced specifically on all the reliefs sought in the respective applications.” Also, citing Adeogun v. Fasogbon (2011) B NWLR (Pt.1250) 427 at 453 and Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227, it was his submission that Appellants who acquiesced to the writing of one ruling cannot renege and turn round to impugn the said procedure.
Regarding the construction placed on Paragraph 12 (5) of the 1st Schedule, learned senior Counsel for the 3rd Respondent contended that, “an objection asking that paragraphs of the petition be struck out cannot without more qualify as ‘objection to the hearing of the Petition.” Thus, strictly speaking, “the objections taken and ruled upon by the Tribunal in as much as they relate to the Appellants, are not against the hearing of the Petition and should not be bound by Paragraph 12 (5).” It was then stated, that “a community reading of Paragraphs 12 (5) and 18 (7) (d) of the 1st Schedule to the Electoral Act will reveal that the former was not intended to be an absolute provisions.” It was then submitted that, “the law is intended to facilitate the exercise of reserved rights and not to constitute a trap against the exercise of such rights.”
Learned senior Counsel concluded with the submission that “all points of law including jurisdiction when raised especially by way of motion ought to be taken at the only time prescribed for addressing motions.” Additionally, that in the instant case, the issue of jurisdiction of the tribunal was prevalent in the matter and had to be addressed and determined before anything else.
On 22nd January 2013 the learned senior Counsel for the 1st Respondent Chief Wole Olanipekun, SAN informed the tribunal about certain agreements reached by all the learned Counsel for the parties after consultations. Both learned Counsel for the 2nd and 3rd Respondents herein, concurred with the said report. On his part, the learned senior Counsel for the Appellants herein stated thus:
“I confirm one that the report given by my brother silk is up to a point a fair
representation of what we agreed….We also agree to consolidation of all the contentious motions to be argued together for a ruling”.
The tribunal agreed with the position as stated and even expressed its gratitude to the learned Counsel for the parties for their cooperation.
[Pages 444 and 445 of the record).
Without mincing words or belabouring the points, it is my firm viewpoint that despite the much heat generated in the arguments canvassed by the learned Counsel for the parties and reviewed above, there seemed to be no bright light at the end of the tunnel. This is simply because, with the unrestricted and unqualified consent donated by the parties to the tribunal with regard to the modality for hearing of contentious motions together and one ruling rolled out thereon. In view of the allowed declaration evinced in the said joint consent doled out by the learned Counsel for the parties; the delivery of one fused all encompassing ruling thereon by the tribunal cannot be faulted. Thus, the issues and or complaints strenuously raised before us, not having been raised before the tribunal and with the benefit of the tribunal’s pronouncement thereon, cannot be said to have been properly and duly placed before us. They are fresh issues which cannot be raised before us, without prior leave of Court sought and obtained. Put differently, the issues strictly speaking were not canvassed before the tribunal, in view of the latent consent before it. Analogically, the scenario can be likened to that of consent judgment which is not appealable as of right. Both issues are thereby discountenanced by me and accordingly struck out.
ISSUES 3 & 4
The tribunal upon applications made by the Respondents, struck out certain/specified paragraphs of the petition at the behest of the Respondents. Appellants challenged and quarreled/queried why this should be so.
On issues 3 and 4, the learned senior Counsel for the Appellants submitted that, “the paragraphs impugned and struck out by the tribunal for offending Paragraph 4 (1) (d) aforesaid are free from doubt, sure and unambiguous as couched.” He argued the point that since the power of a Court or tribunal to strike out paragraphs of pleadings is not at large, and in the absence of specific provisions in the Electoral Act in this regard, that the tribunal lacks the power to do what it did. It was his submission that, “the law as it now stands has effectively and designedly removed the jurisdiction of the trial Tribunal from adjudicating upon this type of objection.” The case of Obi v. INEC (2007) All FWLR (Pt.378) 1116 at 1194 – 1195 G-A was called in aid of this submission. Appellants further contended and contested the paragraphs struck out by the tribunal on the grounds that they are vague, generic, speculative, imprecise and nebulous. It was then pointed out that most of the paragraphs struck out by the tribunal were introductory. Additionally, that Paragraph 4 (1) of the First Schedule does not preclude a Petitioner from including introductory paragraphs in his petition. Hence, the tribunal was wrong “in striking out the paragraphs struck out on the alleged ground that they were vague, nebulous, generic, speculative and imprecise.”
Learned senior Counsel for the Appellants further submitted that the tribunal erred when it struck out certain paragraphs of the petition, “on the ground that they raised criminal allegations against persons who were not joined.” The submission was made that where a statute has specifically provided for parties in an action, the common law principles of joinder of a necessary party will not apply.” Reference was made to Yusuf & Anor. V. Obasanjo & Ors (2003) 16 NWLR (Pt. 847) 554/617; Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 at 499 D. Furthermore, that the tribunal misapplied the provision of Section 36 of the 1999 Constitution, as right to fair hearing enures only to a necessary party to a petition. He cited and relied on Obasanio v. Buhari & Ors. (2003) 17 NWLR (Pt.850) 510 at 560-562; Uzodinma v. Udenwa (2004) 1 NWLR (Pt.854) 303 at 347 – 349.
It was further submitted by the learned senior Counsel for the Appellants, that the striking out of the paragraphs which relate to the voters register was most improper.” He argued, that “votes registers used in the election are part of the acts constituting election.”
Regarding the paragraphs that were struck out by the tribunal on the ground that it was the PDP and not the LP that won the election in the said Local Government Areas and that since the PDP was not joined to the petition; that the tribunal was bereft of jurisdiction to intervene. It was pointed out that the tribunal gave consideration to the affidavit evidence of the Respondents. Learned Appellants’ Counsel cited and relied on the case of Adeyemi & Ors v. Opeyori (1976) 9 & 10 SC 31 at 51 – 51 among other cases on the established position of the law, “that it is the claim of the Plaintiff that determines the jurisdiction of the Court.”
Finally, learned senior Counsel for the Appellants cited Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 518 – 519 and 520 and contended that the holding of the tribunal in this regard, “that PDP candidate ought to have been joined to this petition failed to take account of the settled position of the law that a candidate who lost election is not a statutory respondent to an election petition arising from the election.”
The learned senior Counsel for the 1st Respondent in his response to both issues as argued by the learned Appellants’ Counsel, commenced with a dissection of the Supreme Court decisions in Ojukwu v. Yar’adua (2009) 12 NWLR (Pt.1154) 50 at 148 – 149 and Abubakar v. Yar’adua (2008) 19 NWLR (Pt.1120) 1 at 147 with the submission that the tribunal was on course when it struck out the offending paragraphs of the petition. He added that since facts and arguments are not the same and facts are synonymous with particulars, that “what the law anticipates to be included in a petition is facts and not arguments.” The case of Jinadu v. Esurombi – Aro (2005) 14 NWLR (Pt. 944) 142 at 181 was cited as an authority.
With regard to the paragraphs of the Appellants ‘petition that were struck out on the ground that they raised criminal allegations against persons who were not joined as parties to the petition the learned senior Counsel for the 1st Respondent pointed out that the petition “is replete with weighty criminal allegations against various persons and institutions that are not made parties to the petitions.” According to the learned senior Counsel, this omission is a clear contravention of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria [as amended], which pertains to the right to fair hearing of the affected persons. Thus, the petition has been vitiated by breach of the constitutionally entrenched right of fair hearing.
With much reliance being placed on some recent unreported decisions of this Court which include CPC v. INEC & Ors. (Unreported) CA/A/EPT/RPES/11 of 14th July, 2011 and Hon. (Sir) Stanley Ugochukwu Ohajoruko & Anor. v. Chief Theodore A. Orji & 2 Ors, (Unreported) EPT/AB/G/15|/2011 of 12th September, 2011, it was contended by the learned senior Counsel for the 1st Respondent, that the authorities are apt and instructive on the issue and in support of the 1st Respondent’s stand point. With regard to paragraphs of the petition which touched on what allegedly happened in two Local Government Areas, whereat the 1st Respondent was not the winner, the learned senior Counsel for the 1st Respondent submitted in essence that the decision of the tribunal on this score is impeccable and cannot be faulted.
Learned Counsel for the 2nd Respondent submitted in essence with regard to issues 3 and 4, that since the jurisdiction of an election tribunal cannot be enhanced with an expansion outside/beyond its statutory and constitutional provisions, that the tribunal was on a firm terrain when it agreed with the challenge mounted by the 2nd Respondent in respect of matters which took place before the conduct of election. That the Appellants ran foul of the central and fundamental principles of pleadings and must be sanctioned by having the offensive paragraphs struck out. Authorities were cited in support of the points being made.
Again, learned senior Counsel for the 2nd Respondent contended that the Appellants “are wrong to posit that some of the paragraphs are introductory and that details are elsewhere.” Submission was further made that failure on the part of the Appellants to join individuals and unknown personages against whom diverse allegations were made in the petition, renders the affected paragraphs incompetent and liable to be struck out. Reliance was placed on the recent case of Kalu v. Chukwumerije (2012) 12 NWLR (Pt.1315) 425, a case said to be “similar to the instant petition on the point in issue.”
With regard to paragraphs of the petition which were struck out on the basis that they relate to two Local Government Areas of Ondo State which were won by PDP and without joining them as a party in the petition, the 2nd Respondent agreed with the tribunal which upheld their challenge and position thereon. The cases of Chime v. Onyia (2009) 2 NWLR (Pt.1124) 1 at 77 and Green v. Green (1987) 3 NWLR (Pt.61) 480 were cited in support.
I must say, that to a great extent arguments canvassed by the learned senior Counsel for the 3rd Respondent in the said 3rd Respondent’s brief, tallied in import and purport with the ones advanced by the learned senior Counsel for the 1st and 2nd Respondents respectively. As such, I do not perceive a dire need for a review/rehash of the same. I have pored over and dutifully perused the petition and with particular attention being paid to the paragraphs of the petition which were struck out by the tribunal. I cannot but agree with the conclusion to a certain extent and cannot help but disagree in other respect and with regard to other affected paragraphs and in respect of which there is going to be a parting of the ways between us the tribunal and me.
It is instructive and significant to note that contrary to the standpoint maintained by the tribunal in its ruling, the core issues raised in the paragraphs struck out on the basis that it was PDP and not LP that won in the two Local Government Areas, somewhat missed the point. The issue in contention is with regard to votes scored and how scored and not by which particular party – be it the winner or loser. The 1st and 2nd Respondents by extension obviously scored votes as per declaration of results which emanated from the two Local Government Areas. Hence, the grouse of the Appellants as to how the votes were garnered.
With regard to issues 3 and 4 in the Appellants’ issues adopted for determination, let me reiterate that adequate considerations have been given to the incisive and elucidating submissions made by the learned Counsel for the parties respectively. I have done all these and more against the background of the firmly and established position of the law on pleadings, both generally and specifically with respect to election petitions.
Against this backdrop, I have examined/scrutinized each of the paragraphs of the petition with a view to determining the proprietary nature and competence of the said paragraphs and more particularly, the ones adjudged suspect and struck out by the tribunal. At the end of the grueling exercise, I found that the tribunal was in the right when it struck out the following paragraphs in the petition, namely:- 19, 20, 23, 26, 27, 28, 29, 30, 31, 33, 34, 35, 40, 46, 48, 49, 51, 55, 71, 77, 78, 80, 81, 85, 86, 91, 111, 112, 113, 114, 119, 120, 121, 122, 124, 125, 132, 143, 144, 145, 146, 149 and 181.
Similarly, in the course of the same exercise, I am of the firm viewpoint that some Paragraphs were erroneously struck out by the tribunal. For instance, some of the Paragraphs struck out made reference to other Paragraphs that were found by the tribunal to be valid and competent. For example, Paragraph 44 referred to Paragraph 43; while the latter was saved the former was struck out. I found and now hold that the following Paragraphs were erroneously struck out by the tribunal. The affected Paragraphs are as follows – 12, 13, 14, 15, 17, 18, 22, 24, 38, 39, 44, 45, 76, 79, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126 and 130.
Upon the conclusion of the said exercise and the end results as listed/itemized above, issues 3 and 4 are partly resolved against the Respondents and in favour of the Appellants. Consequently, all the Paragraphs of the petition listed above and found to have been erroneously struck out by the tribunal are hereby ordered restored to the petition and to be duly heard by the tribunal. On the other hand, the tribunal’s order striking out all the Paragraphs hitherto found by me to have been correctly struck out is hereby further affirmed by me.
In the premise of the foregone, this appeal succeeds in part and it is hereby allowed in part. I make no order regarding costs. Parties are to bear their respective costs.
TIJJANI ABDULLAHI, J.C.A.: I agree.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.: I agree.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.
Appearances
Chief Akin Olujinmi, SAN, CON, Wole Aina Esq., Adekola Olawoye Esq., Mrs. Folashade Aladeniyi, Oluwagbemiga Olatunji Esq., Oluwole O. Ajisafe Esq., Charles Titiloye Esq., Adegbemile Henry Kayode Esq., Funso Aragbada Esq., Miss Yejide Akeredolu, Miss Emmanuella Adams, Bada M. Mathew Esq., Miss Aregbesola D. Ajibola, S. O. Olubola Esq., Adeoye Abdulrasak Esq.,For Appellant
AND
Chief Wole Olanipekun, SAN, Mr. Rickey Tarfa, SAN, Mr. John Olusola Baiyeshea, SAN, Mr. Eyitayo Jegede, SAN, Mr. Abiodun J. Owonikoko, SAN, Mr. Aderemi Olatubora, Mr. E. A. Ibrahim – Effiong, Mr. Kunle Ijalana, Mr. Ayo Adesanmi, Mr. Yusuf Dikko, Mrs. A. A. Ajileye – George for the 1st Respondent
Mallam Yusuf Olaolu Ali, SAN, Mr. A. O. Adelodun, SAN, Mr. K. K. Eleja, Mr, R. O. Balogun, Mr. A.O Abdulkadir for the 2nd Respondent
Dr. Onyeachi Ikpeazu, SAN, Mr. O. Osaze – Uzzi for the 3rd Respondent.For Respondent
