CHIEF SERGEANT CHIDI AWUSE V. DR. PETER ODILI & ORS
(2003)LCN/1463(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of July, 2003
CA/PH/EPT/154/2003
RATIO
PETITION: TO COMMENCE ELECTION PETITION
“The proceedings in election petitions are regarded as sui generis. Election petition is not a civil proceedings. See Oyekan v. Akinjide (1965) NMLR 381, where the Supreme Court held that the proceedings on an election petition are special proceedings for which special provisions were made in the Constitution. Election petitions are also distinct from the ordinary civil proceedings: See Collins Obih v. Mbakwe, (supra) where Bello, JSC (as he then was) stated at page 330:
“From the provisions of the Constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings within the con of section 267 of the Constitution.” An election petition is neither a civil proceeding nor a criminal proceeding. It is such that in certain circumstances any slight default in complying with the rules, which could be cured or waived in normal civil proceedings, could be fatal to the petition. Since an election petition is neither a civil proceeding nor a criminal proceeding, an election tribunal is strictly governed and is bound to adhere to the procedure laid down in the Act.” PER D. MUHAMMAD, J.C.A.
STATUTE AND INTERPRETATION: CARDINAL RULE OF INTERPRETATION
“It is a cardinal rule of interpretation that where the words of a statute are clear and unambiguous those words shall be construed as to give effect to their natural or literal meaning. Also where a statute mentions specific things, those things not mentioned are not intended to be included. See: Okumagba v. Egbe (1965) 1 NMLR 62; Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 and Ogbuanyinya v. Okuda (1976) 6-9 SC 32.” PER D. MUHAMMAD, J.C.A.
JUSTICES
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
DAVID ADEDOYIN ADENIJI Justice of The Court of Appeal of Nigeria
Between
CHIEF SERGEANT CHIDI AWUSE Appellant(s)
AND
1.DR. PETER ODILI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER, RIVERS STATE
4. THE RETURNING OFFICER RIVERS STATE
5. THE RETURNING OFFICER, ABUA ODUAL L.G.A.
6. THE RETURNING OFFICER, AHOADA EAST L.G.A.
7. THE RETURNING OFFICER, AHOADA WEST L.G.A.
8. THE RETURNING OFFICER, AKUKUTORU L.G.A.
9. THE RETURNING OFFICER, ANDONI L.G.A.
10. THE RETURNING OFFICER, ASARI-TORU L.G.A.
11. THE RETURNING OFFICER, BONNY L.G.A.
12. THE RETURNING OFFICER, DEGEMA L.G.A.
13. THE RETURNING OFFICER, ELEME L.G.A.
14. THE RETURNING OFFICER, EMOHUA L.G.A.
15. THE RETURNING OFFICER, ETCHE L.G.A.
16. THE RETURNING OFFICER, GOKANA L.G.A.
17. THE RETURNING OFFICER, IKWERRE L.G.A.
18. THE RETURNING OFFICER, KHANA L.G.A.
19. THE RETURNING OFFICER, OBIO/AKPOR L.G.A.
20. THE RETURNING OFFICER, OGBAI EGBEMA/NDONI L.G.A.
21. THE RETURNING OFFICER, OGU/BOLO L.G.A.
22. THE RETURNING OFFICER, OKRIKA L.G.A.
23. THE RETURNING OFFICER, OPOBOI NKORO L.G.A.
24. THE RETURNING OFFICER, OYIGBO L.G.A.
25. THE RETURNING OFFICER, PORTHARCOURT L.G.A.
26. THE RETURNING OFFICER, OMUMA L.G.A.
27. THE RETURNING OFFICER, TAI L.G.A. & 300 OTHERS Respondent(s)
D. MUHAMMAD, J.C.A. (Delivering the Leading Judgment):
On the 19th day of April, 2003, the Independent National Electoral Commission (hereinafter referred to as “INEC”) conducted elections throughout the country, for the election into the offices of the President of the Federal Republic of Nigeria and the Governors of the thirty six States. In Rivers State of Nigeria, there were several candidates, who contested for the office of the Governor, among whom were chief sergeant Chidi Awuse, the appellant herein, who was sponsored by the All Nigeria Peoples Party and Dr. Peter Odili, the first respondent herein, who contested on the platform of Peoples Democratic Party. At the conclusion of the election, Dr. Peter Odili was on the 20th day of April, 2003, returned as the winner.
The appellant was not satisfied with the result and as such, he filed an election petition No. NAGLHEP/RV/1/2003 in the National Assembly/Governorship and Legislative Houses Petition Tribunal, Rivers State, challenging the result of the election. In the petition, Dr. Peter Odili was made the first respondent. INEC was the 2nd respondent. The Rivers State Resident Electoral Commissioner was the 3rd respondent, while the returning officer, Rivers State was the 4th respondent. Various electoral officials that took part in the conduct of the election were joined as 5th to 327th respondents.
Part of the petition reads:
“1. The petition of Chief Sergeant Chidi Awuse of No. 3D Wouodi Close, Off Olu-Obasanjo Road, G.R.A., Phase 3, Port Harcourt and of Emohua Local Government Area of Rivers State.
2. Your petitioner, Chief Sergeant Chidi Awuse, was a candidate, under the platform of the All Nigeria Peoples Party (ANPP) for the governorship election of Rivers State.
3. Your petitioner, states that the election was held on April 19th, 2003, when the petitioner and Dr. Peter Odili, the 1st respondent, were candidates; and on April 20th, 2003, the 4th respondent declared that the 1st respondent received 2,098,692 votes and the 1st respondent was declared to be duly elected.
4. Your petitioner states that the 1st respondent was not duly elected by a majority of lawful and/or valid votes cast at the election.
5. Your petitioner avers that the votes cast at the said election were not correctly added up or counted at the ward, Local Government & State collation centres in that the figures added up at the collation centres, were either not those actually recorded at the polling stations (where no elections took place) or they were not based upon correct figures of actual votes at the polling stations (where elections took place)”.
The petition in paragraph 112 concluded with the following prayer:
“WHEREOF your petitioner prays that it may be determined that the said Dr. Peter Odili, the 1st respondent was not duly elected or returned and that his election was void or that the election is void on the grounds that it was not conducted substantially in accordance with the provisions of Part 11 of the Electoral Act, 2002, or as the case may be.”
The 1st respondent then filed a notice of intention to rely upon a preliminary objection as follows:
“TAKE NOTICE that the 1st respondent herein named intends at the hearing of the petition to rely upon the following preliminary objection, notice whereof is hereby given to you, viz
The petition herein, is fundamentally defective for failing to comply with Electoral Act, 2002 and should therefore be struck out.
And take notice that the grounds of the said objection are as follows:
1. The said petition is not in accordance with the provisions of Part VII of the Electoral Act, 2002, and the provisions of the 1st Schedule of the Act.
2. The petition does not state the names of all the candidates at the election and the votes of each candidate and the person returned as the winner of the election as required by paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002.
3. The candidates at the said election were more than the candidates mentioned in paragraph 3 of the said petition.”
In support of the preliminary objection, the 1st respondent filed an affidavit of 8 paragraphs. The appellant filed a 14 paragraphs counter-affidavit. After hearing the submissions of all the counsel in the matter, the tribunal in a reserved ruling, struck out the petition.
In its ruling, after quoting the provisions of paragraph 4 of the 1st Schedule to the Electoral Act, 2002, the tribunal stated:
“The attitude of the courts to this provision of the Electoral Act is that it is mandatory, substantial and never procedural. In fact, due compliance with it is a condition precedent and sine qua non to the filing of a competent and valid election petition. Failure to comply with it is not a mere irregularity rather it is fatal as such that it cannot be said that there is a valid election petition before the tribunal.”
The tribunal then goes on to say:
“The petitioner/respondent contended that he had stated names of candidates and the votes scored in the election petition. However, considering the affidavit evidence before the tribunal the names of the candidates and the votes scored by them as indicated in the election petition have not satisfied the provisions of paragraph 4(1)( c) of the First Schedule to the Electoral Act, 2002.
Consequently, the provisions of paragraph 4(6) thereof will have to be called in aid, since it makes any petition that does not comply with the said paragraph 4(1)(c) or any provision of the sub-paragraph defective.
Consequently, the only option open to the tribunal in the circumstance is to strike out the petition as it has no jurisdiction to entertain it…
It is for this reason that this tribunal finds that the present election petition is defective and must be struck out and it is hereby accordingly struck out. There shall be no order as to costs.”
Aggrieved with this decision the petitioner (hereinafter called the “appellant”) appealed to this court.
The grounds of appeal shorn off their particulars read:
(i) ERROR IN LAW
The election tribunal erred in law, when it struck out the appellant’s petition on the grounds of non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002.
(ii) ERROR IN LAW
The election tribunal erred in law, when it held that more than two candidates contested the election and their scores were not included in the petition.
(iii) ERROR IN LAW
The election tribunal erred in law, when it failed to make a finding on section 149(d) of the Evidence Act as to the presumption of non-production of the Independent National Electoral Commission declaration of result of election for Governorship Form EC8E(1) by the 1st respondent/applicant and 2nd – 327th respondents.
(iv) ERROR IN LAW
The election tribunal erred in law and misconstrued the clear provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, when it held that scores allotted to the political parties is the same as scores of candidates in the election.
(v) ERROR IN LAW
The election tribunal erred in law when it struck out the petition relying on a self-contradictory affidavit of the 1st respondent/applicant.
(vi) ERROR IN LAW
The election tribunal erred in law, when it held that the non-specification of the candidates other than that of the petitioner and the 1st respondent vitiates the election petition.
(vii) ERROR IN LAW
The election tribunal erred in law, when it held that paragraph 4(6) of the First Schedule to the Electoral Act, 2002, was obligatory and mandatory and therefore, the election tribunal lacked jurisdiction to entertain the petition.
(viii) ERROR IN LAW
The election tribunal erred in law, in not considering whether there were sufficient materials placed before it by the appellant, upon which they would have exercised their discretion in his favour.
(ix) ERROR IN LAW
The election tribunal erred in law, in striking out the petition on the ground that it has no jurisdiction to entertain it.”
In compliance with the practice direction No.2 of 2003 briefs of argument were filed and exchanged. The appellant in his brief of argument formulated three issues for the determination of the appeal.
The 1st respondent adopted the issues as formulated by the appellant.
The 2nd – 327th respondents in their joint brief formulated two issues for the determination of the appeal.
Before stating the issues formulated by the parties, I must first resolve the objection raised in regards to the validity of the 1st respondent’s brief of argument.
On the 5th of July, 2003, a brief was filed which was headed 1st respondent’s brief of argument. It was signed by the B. M. Wifa, SAN on behalf of Chief Kehinde Sofola, SAN. However, on the 7th July, 2003, another 1st respondent’s brief of argument was filed. This time, the brief was signed by Kehinde Sofola, SAN himself. At the hearing of the appeal, learned Senior Counsel for the 1st respondent Sofola, SAN applied to withdraw the brief filed on 5th July, 2003, because he did not know anything about it. In his own words:
“I disclaim the brief. I know nothing about the brief. It was filed without my knowledge. I hereby withdraw it.”
Chief Ahamba learned Senior Counsel for the appellant, had no objection to the 1st brief being withdrawn, he however objected to the adoption of the second brief because it was filed out of time and the 1st respondent did not ask for extension of time to file the said brief. In support of his objection he referred to Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 at 300. Kehinde Sofola on the other hand, referred to Order 1 rule 7 of the Court of Appeal Rules, 2002 and submitted that the brief was filed within time.
Practice Direction No.2 of 2003 provides:
“For the purpose of appeals coming to the Court of Appeal under S. 137 of the Electoral Act, 2002, No.4, this Practice Direction shall be strictly observed by all parties:
5. Within a period of 5 days after the service of the record of proceedings, the appellant shall file in the court and serve all the respondents a written brief being a succinct statement of his arguments in the appeal.
6. ………………….
7. Respondents shall file in the court and served on the appellant his own brief within 3 days after service in accordance with paragraph 5 above.”
It could be seen that the respondent has only three days within which to serve the respondent’s brief from the date he was served with the appellant’s brief. The appellant’s brief was served on the 1st respondent on 2nd July, 2003. The 1st respondent’s brief in question was filed on 7th July, 2003. Ostensibly, it appears that the said brief was filed out of time. However, that is where Order 1 rule 7 of the Court of Appeal Rules comes into play. It provides:
“The Registries of the court shall, subject to the directions of the President, be opened to the public everyday in the year, from eight to one o’clock in the afternoon clock in the afternoon, except on Saturdays and Sundays or on any day declared a public holiday, under any written law.” (Italics mine).
2nd July, 2003, was a Wednesday, three days from that day fell on a Saturday, a day which the registries of the court are closed. On Sunday, the registries are also closed. By virtue of the Interpretation Act, a period reckoned by days for the doing of any act shall be deemed to be exclusive of the day in which the act is done and if the last day of the period is a Saturday or Sunday, or a public holiday, the period shall include the next following day. The available day for the filing of the brief is therefore Monday 7th July, 2003. I therefore, hold that the brief was filed within time. The objection is therefore overruled.
I now return to the issues formulated by the parties. As I have earlier stated, the appellant formulated three issues for determination, which were adopted by the 1st respondent. The issues are:
“1. In the determination of the issue whether the petition has complied with the requirements of the Electoral Act, 2002, can the tribunal look at any process other than the petition?
2. Whether the petition as constituted was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002.
3. Whether the electoral tribunal has any discretion under paragraph 4(6) of the First Schedule to the Electoral Act, 2002, in considering the application of paragraph 4(1)(c) of the said Schedule.”
In their brief, the 2nd – 327th respondents identified two issues for determination:
“1. Whether proceedings in election tribunal are synonymous with civil proceedings.
2. Whether the tribunal was right in striking out the petition for non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002.”
Taking into consideration the grounds of appeal, I am of the opinion that the issues formulated by the appellant are more apt to the determination of the appeal. At the hearing of the appeal, counsel to the parties adopted their respective briefs of argument and also proffered oral submissions to amplify the various points raised in the brief issue No.1 is that in the determination of the issue whether the petition has complied with the requirements of the Electoral Act, 2002, can the tribunal look at any process other than the petition? It was submitted on behalf of the appellant that in considering, whether a petition was fundamentally defective for failing to comply with the relevant law, it is the petition only that has to be examined vis-a-vis the applicable law. It was also submitted that the court could only look at the statement of claim to determine the challenge and no affidavit evidence or the defence has any relevance.
In support of this submission the following cases were referred to: Adeyemi v. Opeyori (1976) 9-10 SC 31; (1976) NSCC (Vol. 10) 455; Ajaka Izenkwe v. Onyemuche Nnadozie (1952) 14 WACA 361 and Wenlock v. Moloney & Ors. (1965) 2 All ER 871. It was then submitted that the approach of the tribunal was against the principles ventilated in the cases cited above. It was further submitted that the tribunal was in error because it took into consideration irrelevant facts in determining the matter and that the tribunal solely relied on the affidavit evidence in coming to its conclusion.
It was also submitted that the tribunal was wrong in driving away the appellant without trial and that the case was decided on affidavit evidence without discovery, oral evidence or cross examination and that the approach of the tribunal in striking out the petition based on preliminary objection was condemned by the House of Lords in the case of Tilling & Anor. v. Whiteman (1979) 1 All ER 737.
It was submitted that paragraph 4(1)(c) of the First Schedule to the Electoral Act has to be read within the con of the whole paragraph 4, because paragraph 4(1)(c) did not state that what has to be pleaded was the scores of all the candidates and that paragraph 4 simply restated the rules of pleading i.e. parties are bound by their pleadings and failure to plead material facts is fatal to the case. It was finally submitted that the petition before the tribunal was adequate in terms of pleading material facts for the purpose of sustaining the complaint of the appellant and ought not to have been struck out. We were then urged to set aside the decision of the tribunal.
It was submitted in the 1st respondent’s brief that the issues in the preliminary objection went to the root of the case. It was based on the failure of the petitioner to comply with the statutory provisions in the Electoral Act, 2002. It was then submitted that compliance with statutory provisions in election petition cases is a fundamental pre-condition a breach of which is incurable and failure to comply with the provisions of the Act is fatal. It was further submitted that it was settled law that election cases were special in nature and character. They are “sui generis”.
In support of this submission, the following cases were referred to: Professor Ayua v. Rev. Father Moses Adasu & Ors. (1984) 1 SCNLR 192, (1992) 3 NWLR (Pt.231) 598; Chief Collins Obih v. Chief Samuel Mbakwe & Ors. (1984) 1 SC 325; Abah v. Robert (1999) 4 NWLR (Pt.597) 126 and Samamo v. Anka (2000) NWLR (Pt. 640) 283. It was stated that references were made to the above cases to show that election cases are neither civil nor criminal cases. The case of Nwoke v. Ebeogu (1999) 6 NWLR (Pt. 606) 247, was held that a preliminary objection could successfully be taken as long as evidence has not been taken in election petition cases. The case of Mudiaga-Erhueh v. INEC (1999) 12 NWLR (Pt. 630) 288 and Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334 were also referred to. It was then submitted that the cases relied on by the appellant were most inappropriate and did not apply either because they relate to civil cases and do not apply to election petition cases, which are in law sui generis or they are against the appellant.
On behalf of 2nd – 327th respondents, it was submitted that a petition forms the main complaint before a tribunal, but in considering whether such a petition is fundamentally defective for failing to comply with the Electoral Act, the tribunal cannot shut its eyes to other pieces of evidence which will assist the tribunal in the just determination of the application before it. It was then submitted that election petitions are “sui generis” and as such they are considered to be distinct from civil proceedings.
To support this submission the following cases are referred to: Chief Collins Obih v. Mbakwe (1984) 1SCNLR 192, (1984) NSCC (Vol. 15) 127; Chief Nelson Gbe v. Esewe (1988) 4 NWLR (Pt. 89) 435; Ezeobi v. Nzeka (1989) 1 NWLR (Pt. 98) 478 and Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323. It was then submitted that the argument that the tribunal could only examine the petition in considering whether a petition like a pleading is fundamentally defective was erroneous. Moreso, when the petitioner filed a counter-affidavit and copiously relied on the averments contained therein in his argument. It was contended that the appellant cannot at this stage raise the issue of relying on affidavit evidence because the issue was never raised at the tribunal, we were urged to discountenance all the arguments on the issue. It was then subrrtitted that the tribunal was entitled to look at its records in arriving at as just decision as was held in Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630 and Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170. It was finally submitted that the tribunal was entitled to evaluate the affidavit evidence before the tribunal.
An election petition is heard by an appropriate election tribunal established by the Constitution. In respect of governorship election, see S. 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 which provides:
“There shall be established in each State of the Federation one or more election tribunals to be known as Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
The composition of the tribunal is as set out in the Sixth Schedule to the 1999 Constitution. The law and procedure governing the tribunals is the Electoral Act, 2002. The jurisdiction of an election tribunal to deal with election petitions is of a special nature.
The proceedings in election petitions are regarded as sui generis. Election petition is not a civil proceedings. See Oyekan v. Akinjide (1965) NMLR 381, where the Supreme Court held that the proceedings on an election petition are special proceedings for which special provisions were made in the Constitution. Election petitions are also distinct from the ordinary civil proceedings: See Collins Obih v. Mbakwe, (supra) where Bello, JSC (as he then was) stated at page 330:
“From the provisions of the Constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings within the con of section 267 of the Constitution.”
An election petition is neither a civil proceeding nor a criminal proceeding. It is such that in certain circumstances any slight default in complying with the rules, which could be cured or waived in normal civil proceedings, could be fatal to the petition. Since an election petition is neither a civil proceeding nor a criminal proceeding, an election tribunal is strictly governed and is bound to adhere to the procedure laid down in the Act.
The ordinary civil procedure rules do not apply to the tribunals. In the circumstance, my answer to the first issue is that the tribunal was right when it relied on the affidavit evidence to determine the preliminary objection.
I now come to the second issue i.e. whether the petition as constituted was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. It was submitted in the appellant’s brief that the tribunal was in serious error when it proceeded to adopt its findings, deductions and conclusion to hold that the appellant’s petition did not satisfy the provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act. It was submitted that the consideration of the tribunal that votes scored by unnamed candidates of political parties should be pleaded and failure to plead the names of political parties with their scores contravened paragraph 4(1)(c) was wrong.
It was further submitted that the tribunal was in error to hold that “political parties” are synonymous to “candidates” and that the tribunal made wrong assumptions, which led to the unwarranted and wrong conclusion that the petition did not include the scores of the candidates in the petition. It was contended that the duty of the court is to interpret laws as they are and not as they ought to be: Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR (Pt. 781) 227. It was argued that the tribunal ought not to have gone outside the petition in order to determine whether the petition was in compliance with paragraph 4(1)(c). This court was then invited, by virtue of section 16 of the Court of Appeal Act, to examine whether the failure of the tribunal to make a finding on the applicability of S. 149(1) of the Evidence Act has occasioned a miscarriage of justice. We were urged to set aside the decision of the election tribunal on the grounds that the petition is in conformity with the provision of paragraph 4(1)(c).
The 1st respondent on the other hand, submitted that the general rule is that an appellate court will not allow a party to raise an issue not considered in the trial court. It was stated that the stands taken by the petitioner at the trial and in this appeal are contradictory and inconsistent. The case of Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 was referred to where the Supreme Court held that a party should be consistent in proving it. It was further submitted that since the issue of the failure of the petitioner to comply with statutory provisions in the Electoral Act, 2002, has been established and admitted by the petitioner in his counter-affidavit and his counsel’s submission before the tribunal, the question or reference to section 149(d) of the Evidence Act does not appear to serve any useful purpose and that the Electoral Act does not empower the tribunal to act as suggested by the petitioner’s counsel.
It was also submitted on behalf of the 1st respondent that the courts have to ascertain the meaning of a statute before they can apply it, and that the courts are guided by certain principles known as rules of interpretation or construction. They assume, as matter of common sense, that the legislative (a) uses the right words to express its intention; (b) is reasonable and consistent; and (c) legislates with a practicable object in view. It was also submitted that the first aim is to arrive at an interpretation which the words of the statute could fairly bear and which yields a practicable result with due regard to the object of the statute; and the ultimate aim is to arrive at an interpretation which achieves harmony among the provisions of the statute as a whole, and which also produces consistency with relevant provisions, if any, in other statutes.
The learned Senior Counsel then dealt extensively with the canons of interpretation of statutes, supporting his submissions with the following authorities: Okumagba v. Egbe (1965) 1 All NLR 62; Nasr v. Buhari (1969) 1 All NLR 35 and Mabinuori v. Ogunloye (1970) 1 All NLR 17.
It was submitted that when the preliminary objection was filed and served together with the affidavit in support, the petitioner filed a counter-affidavit to it in which he did not deny paragraph 7 of the affidavit in support which stated that apart from the petitioner and the 1st respondent there were other candidates who took part in the election. The petitioner is therefore, deemed to have admitted paragraph 7 of the affidavit in support. The learned Senior Counsel concluded by submitting that the rules governing election petitions are contained in the Electoral Act, 2002, and the tribunals are governed by them and that there is a lot of difference from joinders of necessary parties and pleading facts to satisfy particular requirement under the Electoral Act. He submitted that the tribunal was right in striking out the petition and urged us to dismiss the appeal.
For the 2nd to 327th respondents, it was submitted paragraph 4(1)(c) of the First Schedule to the Electoral Act is mandatory and the provisions are clear and unambiguous and as such, this Court should give them their natural meaning. To buttress this submission, the following authorities were referred to: Doma v. Adamu (1999) 4 NWLR (Pt. 598) 311 and The Daily Times v. Amaizu (1999) 12 NWLR (Pt. 631) 439. It was also submitted that since the 2nd 327th respondents were not the applicants, it was not their duty to produce FORM E.C.8(E)(1) and the presumption under S. 149(d) of the Evidence Act on failure to produce evidence could not be raised against them. It was also stated that S. 149(d) could only become applicable where the party actually relied on the document and failed to produce the document.
The case of Bamgbose v. Jiaza (1991) 3 NWLR (Pt. 177) 64 was relied upon. It was also submitted that merely not producing evidence would not necessarily amount to withholding such. evidence as to raise the presumption under S. 149(d) of the Evidence Act. The court must be satisfied that the evidence has been withheld. The case of Awosile v. Sotunbo (1986) 3 NWLR (Pt. 29) 471, was cited in support of the submission.
It was then submitted that paragraph 4(1)(c) being mandatory, non-compliance with it does not leave the tribunal with any discretion: Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260 and Ezeobi v. Nzeka (1989) 1 NWLR (Pt. 98) 478 and that S. 136(3) of the Electoral Act, 2002 and paragraph 4(6) of the First Schedule to the Electoral Act did not create any discretion for non-compliance with paragraph 4(1)(c) and that no miscarriage of justice has occurred for this Court to apply its general powers under S. 16 of the Court of Appeal Act. We were urged to dismiss the appeal.
Taking into consideration the ruling of the tribunal and the submissions of all the counsel, the resolution of this appeal primarily revolves on the interpretation of section 133 of the Electoral Act and paragraph 4(1)(c) of the First Schedule to the Electoral Act.
Section 133 provides:
“133(1) An election petition may be presented by one or more of the following persons –
(a) a candidate at an election;
(b) a Political Party which participated at the election.
(2) The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person, who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
It is a cardinal rule of interpretation that where the words of a statute are clear and unambiguous those words shall be construed as to give effect to their natural or literal meaning. Also where a statute mentions specific things, those things not mentioned are not intended to be included. See: Okumagba v. Egbe (1965) 1 NMLR 62; Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 and Ogbuanyinya v. Okuda (1976) 6-9 SC 32.
The provisions of S. 133 are clear and unambiguous. Sub-section 1 of S. 133 prescribes who may present a petition. It is a candidate at the election or a political party, which participated at the election or both of them that, can present an election petition and no more. Sub-section 2 stipulates who could be made a respondent in an election petition. Those who could be joined, as respondents are the person whose election is complained of; an Electoral Officer; a Presiding Officer a Returning Officer or any other person who took part in the conduct of the election. By the clear provisions of sub-section 2 these are the only persons that can be made respondents in an election. To add any other person apart from the ones specified in the sub-section would tantamount to reading into the statute what is not there.
Paragraph 4 of the First Schedule to the Electoral Act prescribes what an election petition should contain. It provides:
“4(1) An election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the
winner of the election; and
(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.”
It is a well settled principle of construction of statutory provisions that a statute must be read and interpreted as a whole in order to get the correct meaning of any particular expression. When interpreting a particular section of a statute, the section should not be read in isolation, the whole statute should be considered because the section is part of the whole. See: Chime v. Ude (1996) 3 NWLR (Pt. 461) 379. Schedules, tables and forms are also useful in the interpretation of provisions in the body of a statute especially where there is ambiguity. However, they cannot override the plain words of the statute, because if there is any contradiction between schedules, tables and forms and the enacting clause, the enacting clause will prevail. See: F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652.
The main issue for the determination of the preliminary objection at the tribunal has been correctly identified by the tribunal. See page 268 of the record of proceedings where the tribunal stated:
“The main issue in contention in the preliminary objection raised by the 1st respondent/applicant is in respect of the non-compliance with the provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. That the petitioner’s petition did not contain the votes of each candidate and the person returned as the winner.”
Since the tribunal based its decision upon non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, it is imperative to determine the scope and effect of the said paragraph. The Supreme Court in the recent case of General Muhammadu Buhari and Anor. v. Alhaji Mohammed Dikko Yusuf and Anor. (2003) 14 NWLR (Pt. 841) 446, has considered the scope and effect of S. 133 Electoral Act, 2002 and paragraph 4(1)(c) and came to the following conclusion:
“It is manifest that section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under subsection (2) as identified in this judgment. As a matter of strict adherence parties can neither be respondents nor are they necessary parties. Paragraph 4(1)(a) and (c) and para. 45 of the First Schedule to the Act do not warrant any other interpretation being given to section 133(2). In respect of para. 4(1)(c), it is enough to supply the particulars in the body of the petition without joining the said candidates as parties to the petition. Such particulars shall be in respect of candidates, who were validly nominated and who upon that basis contested the election, not any other candidates upon whom votes were wasted. It is from such proper candidates’ particulars that an order under section 136(2) may be made based on the valid votes cast at the election.
However, if there is any doubt or controversy as to whether all the candidates necessary to be pleaded, this is better resolved upon admissible evidence at the trial of the petition at which stage the tribunal would decide the competency of the petition if that still remained an issue. This has nothing to do with joinder of parties.”
(Italics are mine)
Per Uwaifo, JSC at pages 23-24 of the leading judgment.
From the above decision, it could be seen that a petitioner is not obliged to make any candidate who lost an election a respondent other than the statutory respondents envisaged under subsection (2) and these are the person whose election is complained of, an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election. I will now look at the petition to determine whether or not it complied with paragraph 4(1)(c). The parties to the petition are Chief Sergeant Chidi Awuse who is the petitioner and Dr. Peter Odili the 1st respondent, the Independent National Electoral Commission the 2nd respondent, the Resident Electoral Commissioner, Rivers State, the 3rd respondent, the Returning Officer, Rivers State as the 4th respondent and the 5th – 327th respondents are returning officers in all the Local Government Area throughout the State. In paragraph 3 of the said petition it was stated:
“Your petitioner, states that the election was held on April 19, 2003, when the petitioner and Dr. Peter Odili, the 1st respondent were candidates; and on April 20th, 2003, the 4th respondent declared that the 1st respondent received 2,098,692 votes and the 1st respondent was declared to be duly elected.”
A critical look at the petition will reveal that the petitioner has stated the holding of the election, he stated that the election was held on 19th April, 2003. He has stated what he scored and what the 1st respondent scored.
He had also stated that the 1st respondent was returned as the winner of the election. It is therefore, my considered opinion that the petitioner has complied with S. 133(1) and (2) of the Electoral Act, 2002 and paragraph 4(1)(c) of the First Schedule to the Electoral Act. The petitioner is not obliged by virtue of S.133 of the Act to make any candidate who lost an election a party to the petition. The decision of the tribunal that the petition was incompetent because it failed to state the names and scores of the candidates, who contested but lost the election is wrong.
The petition has substantially complied with paragraph 4(1)(c), it is enough to supply the particulars in the body of the petition without joining the candidates who lost the election as parties to the petition.
Moreover, where there is any doubt or controversy as to whether all the candidates necessary to be pleaded under paragraph 4(1)(c) were pleaded, the Supreme Court held that:
” … this is better resolved upon admissible evidence at the trial of the petition at which stage the tribunal would decide the competency of the petition if that still remained an issue. This has nothing to do with joinder of parties.” See pages 23-24 of the leading judgment in Buhari v. Yusuf (supra).”
My answer to the second issue is therefore in the affirmative. The petition was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. This effectively disposes of the appeal. There is no need to consider the third issue. To do so will amount to an academic exercise.
In the circumstance, the appeal succeeds and is allowed by me. The ruling of the tribunal delivered on 11th June, 2003 is set aside. The petition is remitted back to the tribunal to be heard on merit. I make no order as to costs.
ADEREMI J.C.A.: I agree with my learned brother, R. D. Muhammad, JCA, whose reasons for judgment I had the privilege of a preview, in advance, that the appeal is meritorious. I wish to add a few words of my own.
Briefly, the facts of the case leading to this appeal are thus: the appellant who was the petitioner before the tribunal and the 1st respondent were candidates for the governorship election in Rivers State that took place on the 19th of April, 2003. After the holding of the election, the 1st respondent who was candidate of the People’s Democratic Party (P.D.P.) was declared the Winner and was thus, returned elected as the Governor of Rivers State by the 2nd, 3rd and 4th respondents. The appellant; as petitioner and the candidate of the All Nigeria People’s Party (ANPP) being dissatisfied with the result filed an election petition dated 16th May, 2003, but filed on the 19th of May, 2003, praying that it may be determined that the 1st respondent was not duly elected or returned and that his election was void on the ground that it was not conducted substantially in accordance with the provisions of section 55 of the Electoral Act, 2002.
The petition was served on the respondents. Sequel to the service of this process, the 1st respondent filed an unconditional memorandum of appearance on the 23rd of May, 2003 and later on the 26th of May, 2003, filed and served notice of preliminary objection together with a supporting affidavit. The grounds upon which the notice of preliminary objection was founded are as follows:
(1) That the said petition is not in accordance with the provision of Part (vii) of the Electoral Act, 2002 and the provision of the 1st Schedule to the Act.
(2) The petition does not state the names of all the candidates at the election and the votes of each candidates and the person returned as the winner of the election as required by the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002.
(3) The candidates at the said election were more than the candidates mentioned in paragraph 3 of the said petition.
The tribunal took arguments of counsel on the notice of preliminary objection and in a reserved ruling delivered on the 11th of June, 2003, the prayers sought by the 1st respondent were granted. In reaching this conclusion, the tribunal had reasoned:
“A cursory look at exhibit ‘A’ attached to the affidavit in support of the application and exhibit ‘A’ attached to the counter-affidavit showed that there were other candidates apart from the petitioner/respondent and the 1st respondent/applicant, who contested the governorship election which was held in Rivers State on 19th April, 2003… Nevertheless, the petitioner/respondent in his petition filed before the tribunal only stated the votes scored by him and the 1st respondent/applicant whereas the unnamed candidates for AD and APGA also scored 7990 and 2,731 votes respectively”.
After quoting the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, which is applicable here, the tribunal further held inter alia:
“The attitude of the courts to this provision of the Electoral Act is that it is mandatory, substantial and never procedural. In fact, due compliance with it is a condition precedent and sine qua non to the filing of a competent and valid election petition…
The petitioner/respondent contended that he had stated the names of candidates and the votes scored in the election petition. However, considering the affidavit evidence before the tribunal the names of the candidates and the votes scored by them as indicated in the election petition have not satisfied the provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. Consequently, the provisions of paragraph 4(6) thereof will have to be called in aid, since it makes any petition that does not comply with the said paragraph 4(1)(c) or any provision of the sub-paragraph defective. Consequently, the only option open to the tribunal in the circumstance is to strike out the petition as it has no jurisdiction to entertain it…
It is for this reason that this tribunal finds that the present election is defective and must be struck out and it is hereby accordingly struck out.”
Being dissatisfied with the ruling striking out the petition in toto, the petitioner appellant has appealed to this court upon a notice of appeal dated 14th June, 2003, but filed on 17th June, 2003, which notice carries nine grounds of appeal. Distilled from the said nine grounds of appeal by the appellant are three issues which as, incorporated in the appellant’s brief of argument filed on 30th June, 2003, are in the following terms:
(1) In the determination of the issue, whether the petitioner has complied with the requirements of the Electoral Act, 2002, can the tribunal look at any process other than the petition?
(2) Whether the petition as constituted was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002?
(3) Whether the petition as constituted was in compliance with the provisions of paragraph 4(6) of the First Schedule to the Electoral Act, 2002, in considering the application of paragraph 4(1)(c) of the said Schedule.
The 1st respondent, through his brief of argument, adopted the three issues formulated by the appellant. The 2nd to 327th respondents however, distilled two issues from the afore-mentioned grounds of appeal as arising for determination by this court: set out in their brief of argument filed on the 3rd of July, 2003, they are as follows:
(1) Whether proceedings in election tribunal are synonymous with civil proceedings.
(2) Whether the tribunal was right in striking out the petition for non-compliance with the provisions of paragraph 4(1)( c) of the First Schedule to the Electoral Act, 2002.
I have examined, very carefully, all the issues raised for determination by this court, it is my respectful view that the cardinal issue that offers itself for resolution is whether there is compliance of the First Schedule to the Electoral Act. A point that calls for examination by this court is whether paragraph 4(6) of the First Schedule to the Act confers the power to exercise discretion on the tribunal. I shall finally treat issue No.1 in the brief of argument of the 2nd to 327th respondents. For a thorough resolution of the cardinal issue I have identified supra again, I am clear in my mind that section 133 of the Electoral Act, 2002, must be read in conjunction with paragraph 4(1)(c) of the First Schedule to the Act.
I hereunder reproduce the two provisions:
Section 133
(1) An election petition may be presented by one or more of the following persons:
(a) a candidate at an election
(b) a political party which participated at the election.
(2) The person whose election is complained of is, in this Act, referred to the respondent, but if the petition complains of the conduct of an Electoral Officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
Paragraph 4(1)( c) of the First Schedule to the Act provides:
An election petition under this Act shall –
(c) state the holding of the election, the scores (If the candidates and the person returned as the winner of the election.
Section 133, which I have quoted supra defines who shall be parties in an election petition. But, paragraph 4(1)(c) of the First Schedule to the Act regulates the averments that shall be contained in an election petition. I pause to say that where a necessary party is not made a party in a petition, the tribunal lacks the jurisdiction to entertain the petition as failure to join such a necessary party is incurably fatal to the petition. See Tafida v. Bafarawa (1999) 4 NWLR (Pt. 597) 70, generally non-compliance with the provisions of Electoral Law is fatal to the election petition, particularly, when the non-compliance substantially affects the result of the election.
The onus of proof is always on the petitioner who alleges. But where there is substantial compliance with the provisions of the Act the petition is often saved. I must say that what “substantial compliances” connotes has not been defined in the Act, but I will like to say that “considerable compliance” will suffice for what “substantial compliance” stands for see Halsbury Laws of England Vol. 15 para. 658 at page 355. As I have said, the main issue for determination by this court is whether there was compliance with the provisions of paragraph (4)( c) of the First Schedule to the Electoral Act, 2002, this was the point on which the tribunal hinged its decision – it found that the petition did not contain the votes of each candidate and the person returned as the winner.
I hasten to say that the burden of proof, like in ordinary civil cases, is on any person questioning the results of an election to prove his claim. But, it must however always be remembered that, in law, the onus of proof is never static. It shifts from one side of the litigation to the other and vice versa from time to time, as the case progresses. Called the onus probandi, it always rests on the party who would fail if no evidence or further evidence, as the case may be, were given on either side see Messrs Lewis & Peat (N.R.I.) Ltd. v. Akhimien (1976) 1 All NLR (Pt. 1) 460.In the instant case, it is the petitioner/appellant who is dissatisfied with the result of the election that has initiated this petition.
Under paragraph 4(1)(c) of the 1st Schedule he is under a duty to state the holding of the election, the scores of the candidates and the person returned as the winner. Going by the above principles on the onus of proof, I am clear in my mind that the duty of establishing that that provision has been satisfied is on the appellant. A reading of paragraph 4(1)(c) leaves me in no doubt that strict compliance with its provisions is mandatory on the face of it.
The wordings of this provision are on the surface, clear. It is an accepted cannon of interpretation of statutes that where the words therein are clear the court shall give effect to their literal meaning Mr. Ahamba learned Senior Advocate for the appellant has invited our attention to paragraph 4(6) of the 1st Schedule and section 136(3) of the Electoral Act and submitted that by the provisions of the afore-mentioned laws the court has a discretion to exercise in the application of paragraph 4(1)(c) and that its provisions are not mandatory.
Mr. Kehinde Sofola learned Senior Advocate for the first respondent in arguing to the contrary submitted that the tribunal was right to have gone outside the petition to use the affidavit from where it was gathered that there were more than two candidates that contested the governorship election; the tribunal he concluded, was right to have struck-out the petition for reason of non-compliance with the afore-said provision. Paragraph 4(6) of the 1st Schedule provides:
“An election petition which does not conform with sub-paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the tribunal or court”.
Section 136(3) of the Electoral Act, 2002 provides:
“On the motion of an election petition, the election tribunal or the court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Part of this Act, or the provisions of First Schedule of this Act.” (Italics is mine)
The word “may” is an enabling or permissive word. It connotes freedom or competence to do something. In Collins English Dictionary the word “may” is defined thus:
“to indicate that permission is requested by or granted to someone; to indicate ability or capacity”.
In the case of Chief Mokelu v. Federal Commissioner for Works and Housing (1976) 3 SC 35, (1976) All NLR (Pt. 1) 176, the Supreme Court, when giving a guide line as to how to construct the word “may” said at pages 282 – 283 thus:
“The principle to be drawn from decided cases on the construction of the word ‘may’ appear to be quite clear.
The word “may’ gives power and the… important question is in what cases, where a Judge has a power given by the word “may” it becomes his duty exercises it. When a statute confers a power or authority on a judge to act in a certain case, it is imperative on him to exercise the power or authority when the case arises and its exercise is duly called for (see MacDougall v. Patterson (1855) 134 ER 672)”.The only inference, which I can draw from what I have been saying about the connotation of the word “may” is that by its insertion in paragraph 4(6) of the 1st Schedule to the Act and also into section 136(3) of the Electoral Act, 2002, the court is vested with discretionary powers in the application of paragraph 4(1)(c) of the 1st Schedule to the Act. It follows that even if it is held that an election petition does not comply with paragraph 4(1)(c), the court still has discretion to exercise in the making of an order striking out the petition.
A court of law which is as well a court of justice must always realize that where by according a literal meaning to the provision of a statute it will result in some ambiguity or injustice the court may seek internal aid within the body of the statute itself or external aid from statutes which are in pari materia in order to resolve the ambiguity or to avoid doing injustice in the matter see (1) Obadara & Ors. v. The President, Ibadan West District Grade ‘B’ Customary Court (1964) 1 All NLR 336. The tussle in this case is strictly between the petitioner/appellant, who lost in the election and the 1st respondent, who was declared the winner. There is no grouse between the petitioner/appellant and other candidates who took part in the said election and who as well lost. So there can never be any reasonable cause of action against those in his category of losers. In the body of the ruling striking out the petition the tribunal gave as reasons for coming to the conclusion it reached failure to aver the names of the candidates for A.D. (Alliance for Democracy) and APGA (All Progressive Grand Alliance).
I have said that from the tenor of the petition the appellant had no score to settle with these candidates. The question then to ask is, what useful purpose will be served by pleading their names and their scores? I shall refrain from answering that question for now. Suffice it to say that the decision of the tribunal was a straight jacket one; it has no import of exercise of discretion which was conferred on it by statute. And when one has a close reading of section 133 of the Act, which I reproduced supra it is manifest that the section does not place any duty on a petitioner to bring into the court arena candidates, who have lost that election. Faced with the difficulty as to the necessity to plead in his petition the particulars of a candidate or candidates who lost in the election that certainly calls for the exercise of judicial discretion. A proper exercise of that discretion, judicially and judiciously will not find a court faced with the processes the type in this case, summarily striking out the petition.
It is on this score that I find very useful and a veritable guide and of course very binding, the dictum of Uwaifo, JSC, in General Buhari & Anor. v. Alhaji Yusuf & Anor. (2003) 14 NWLR (Pt. 841) 446, the learned Justice reasoned:
“It is manifest that section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party whether of a candidate elected or returned or of a candidate, who lost or which may not have been fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under sub-section 2 as identified in this judgment. As a matter of strict adherence to procedure, all such persons or political parties can neither be respondents nor are they necessary parties…
In respect of para. 4(1)(c), it is enough to supply the particulars in the body of the petition without joining the said candidates as parties to the petition. Such particulars shall be in respect of candidates who were validly nominated and who upon that basis contested the election, not any other candidates upon whom votes were wasted. It is from such proper candidates, particulars that an order under section 136(2) may be made based on the valid votes cast at the election.
However, if there is any doubt or controversy as to whether all the candidates necessary to be pleaded under paragraph 4(1)(c) were pleaded this is better resolved upon admissible evidence at the trial of the petition at which stage the tribunal would decide the competency of the petition if that still remained as issue.
This has nothing to do with joinder of parties. ” (Italics mine for emphasis)
The Supreme Court judgments and rulings are binding on all courts of the land which are of subordinate jurisdiction the category of which includes this court (the Court of Appeal). The tribunal, following the reasoning of the Supreme Court in the judgment quoted supra, ought not to have struck out the petition rather; it should have allowed the petition to proceed to full trial. There is always a great value in allowing case to be heard on its merit and not to slaughter justice on the altar of technicalities. It is here appropriate for me to recall the illuminating dictum of Pats-Acholonu, J.C.A. (as he then was) when in Chia v. Uma (1998) 7 NWLR (Pt. 556) 95 or (2003) 1 WLR 106, where at page 111 he said and I quote him.
“It must be stated unflinchingly that election petition must be handled with some elasticity and too much technicality should be avoided”.
If care is not taken adherence to technicalities in adjudication may lead to rationing of justice. It has often been said that to keep and sustain democracy; one commandment must religiously and strictly be obeyed that is “thou shall not ration justice”. One more little point need be addressed before I am done with this contribution.
The 2nd – 327th respondents have posed the question whether proceedings in election tribunal are synonymous with civil proceedings. That is issue No.1 formulated by them. The appellant has in his reply brief urged this court to strike out that issue for the reason that it has not arisen from any of the grounds of appeal. I have carefully examined the said grounds of appeal; I am in full agreement that issue No.1 in the brief of argument of the 2nd -327th respondent which reads:
“Whether proceedings in election tribunal are synonymous with civil proceedings”.
has no foundation in any of the grounds of appeal. It is trite law that an issue to be regarded as valid in law must be rooted in any of the grounds of appeal set out in the notice of appeal. An issue must not rest in vacuo; indeed, it can never stand. Any issue which is not supported by any of the grounds of appeal is incompetent and should be struck out see (1) Odife v. Aniemeka (1992) 7 NWLR (Pt. 251) 25 (2) Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130, (3) Ceekay Traders Ltd. v. General Motors Ltd. (1992) 2 NWLR (Pt. 222) 132 and (4) Onye v. Kema (2003) 1 WLR 131. That issue No.1 must on the above principles be struck-out. And I accordingly strike it out.
But should I be held to be wrong for I could be so held, in answering the question, I say that on decided judicial authorities, election petitions are “sui generis” and as such they are always regarded and considered to be distinct and absolutely divorced from civil proceedings. They are special proceedings for which special provisions of the law are made see (1) Nwobodo v. Onoh (1984) 1 SCNLR 1 (2) Obih v. Mbakwe (1984) 1 SCNLR 192, (1984) NSCC (Vol. 15) 127 and (3) Abdullahi v. Elayo (1993) 1 NWLR (pt. 268) 171.
In conclusion, having regard to all I have been saying supra, but most especially for the reasons given in the lead judgment of my learned brother, R. D. Muhammad, JCA; with which I am in full agreement, it is also my judgment that this appeal is meritorious.
It must be allowed and it is accordingly allowed. The decision of the election tribunal is hereby set aside. The petition is remitted to the election tribunal to start de novo before another panel. I abide by the order as to costs in the lead judgment.
ODUYEMI, J.C.A.: The appellant in this appeal, Chief Sergeant Chidi Awuse was sponsored by the All Nigeria Peoples Party (ANPP) a political party, for election as a governorship candidate in Rivers State elections, throughout the country on 19th April, 2003.
The 1st respondent was also a candidate. He was sponsored by another political party, the Peoples Democratic Party.
The 2nd respondent is the body set up by the Constitution of the Federal Republic of Nigeria to organise elections in Nigeria for the offices of President, membership of the National Assembly, Governor of a state and membership of the various states Houses of Assembly.
The 3rd respondent was the resident electoral officer for Rivers State of Nigeria in the April 19th, 2003 elections.
The 4th respondent was the returning officer for Rivers State while the 5th – 327th respondents were the returning officers and ward returning officers for the respective Local Government Areas and the wards of Rivers State all being officials of the 2nd respondent responsible for the conduct of the government elections in Rivers State.
After the close of polling and collation of results, the 4th respondent declared the 1st respondent as the winner of the governorship election in Rivers State having polled 2,098,692 votes at the elections and declared that the petitioner scored 44,746 votes at the elections votes at the elections.
The petitioner felt aggrieved and presented a petition to the National Assembly/Governorship and Legislative Houses Election Tribunal of Rivers State on the basis stated in paragraphs 3, 4 and 5 of the petition thus –
“3. Your petitioner, states that the election was held on April 19th, 2003, when the petitioner and Dr. Peter Odili, the 1st respondent, were candidates, and on April 20th, 2003, the 4th respondent declared that the 1st respondent received 2,098,692 votes and that the petitioner received 44,746 votes and the 1st respondent was declared to be duly elected.
4. Your petitioner states that the 1st respondent was not duly elected by a majority of lawful and/or valid votes cast at the election.
5. Your petitioner avers that the votes cast at the said election were not correctly added up or counted at the ward, local government, and state collation centres in that the figures added up at the collation centres were either not those actually recorded at the polling stations (where no elections took place) or they were not based upon correct figures of actual votes at the polling stations (where elections took place)”; and praying that-
“WHEREOF your petitioner prays that it my be determined that the said Dr. Peter Odili, the 1st respondent was not duly elected or returned and that his election was void or that the election is void on the grounds that it was not conducted substantially in accordance with the provisions of Part II of the Electoral Act, 2002, or as the case may be.”
Upon being served with notice of the petition, the 1st respondent filed a memorandum of appearance, thereafter, a notice of preliminary objection to the petition on the basis that the petition is fundamentally defective for failing to comply with Electoral Act, 2002 – specifically stating as grounds 2 and 3 as follows:
“2. The petition does not state the names of all the candidates at the election and the votes of each candidate and the person returned as the winner of the election as required by the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002.
3. That the candidates at the said election, were more than the candidates mentioned in paragraph 3 of the said petition.
The preliminary objection was accompanied by an 8 paragraph affidavit. Paragraphs 3 to 7 of which are relevant aver thus:
“3. In the governorship election, held in Rivers State on 19/4/2003, over twelve candidates contested the election including the petitioner and the applicant.
4. I have seen the petition of the petitioner filed on 16/5/2003.
5. No where in the said petition did the petitioner disclose the names of the candidates, who contested the election and the scores of each of the candidates.
6. It is not correct as shown in paragraph 3 of the petition that the only candidates at the said election, were the petitioner and the applicant.
7. I know as a fact that one of such candidates, who took part in the election is Bishop Elekanah Hanson who is the petitioner in petition No. NAGLEP/RV/8/2003, pending before this tribunal, a copy of which is exhibited herewith as exhibit A.”
Annexture A to the affidavit is a copy of the petition to the tribunal of another candidate, who contested the said governorship election for Rivers State – One Bishop Elekanah Hanson.
In answer to the notice of preliminary objection, the 1st respondent swore to a 14 paragraph affidavit. Paragraphs 4 to 12 of which are relevant as follows –
“4. That on April 20th, 2003, my agents and I were not granted access to the venue, where the 2nd & 3rd respondents announced the results of the candidates and their scores.
5. That the said scores and the names of the candidates were later published in the Vanguard Newspaper of Tuesday, April 22nd, 2003.
6. That in the said publication, the names of the candidates and their scores as announced by 2nd & 3rd respondents was published.
7. That Abia State, Bayelsa State, Ogun State, Osun State, Rivers State, Enugu State, Oyo State, Ekiti State, Kwara State and Imo State, had the names of the candidates and the scores as announced by 2nd & 3rd respondents.
8. That as it concerns Rivers State the candidates named were Peter Odili (the 1st respondent herein) and Sergeant Awuse (the petitioner herein).
9. That no other candidate(s) apart from the two stated above, was named by 2nd & 3rd respondents, when it announced results in the publication of the Vanguard Newspaper. A certified true copy of the Vanguard Newspaper of April 22nd, 2003 is hereby attached and marked “exhibit A”.
10. That no election document or forms announcing the said results was issues by 2nd & 3rd respondents to me or to any agents.
11. That since the date of the election till date 2nd & 3rd respondents have failed and refused to release any or all of the electoral documents used in the said election.
12. That based on 2nd & 3rd respondents’ refusal, this Honourable Tribunal had to make an order to enable me, the petitioner, and my agents conduct the inspection of the polling documents.”
There was also annexed to the counter-affidavit – exhibit A which is a certified true copy of an extract of the Vanguard Newspaper of 22nd April, 2003, Vol. 19 No. 5235 at p. 56.
The election petition tribunal heard arguments from learned Counsel to 1st respondent/applicant; also from learned Counsel to 2nd – 327th respondents as well as from learned Counsel for the petitioner/respondent.
In a considered ruling, the lower tribunal upheld the preliminary objection having found the petition defective. The tribunal therefore struck out the petition.
It is against that ruling that the petitioner has appealed to this court. The petitioner filed before the lower tribunal a notice of appeal containing 13 grounds.
Briefs of arguments were filed by all the parties and exchanged.
The appellant distilled for resolution in this appeal, 3 issues thus –
“2.01 In the determination of the issue whether the petition has complied with the requirements of the Electoral Act, 2002, can the tribunal look at any process other than the petition?
2.02 Whether the petition as constituted was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002?
2.03 Whether the electoral tribunal has any discretion under paragraph 4(6) of the First Schedule to the Electoral Act, 2002, in considering the application of paragraph 4(1)(c) of the said Schedule?”
The 1st respondent adopted the 3 issues as set out by the appellant.
The 2nd – 327th respondents also filed a brief in which two issues were identified thus –
“1. Whether proceedings in election tribunal are synonymous with civil proceedings.
2. Whether the tribunal was right in striking out the petition for non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002.”
The petitioner filed a composite reply brief in respect of the briefs of the two sets of respondents.
In the reply brief, petitioner prayed this court to strike out issue No.1 in the brief of 2nd – 327th respondents on the ground that that issue did not come out of any of the grounds of appeal.
I am of the humble view that the objection was well taken. Accordingly, issue No.1 in the brief of 2nd – 327th respondents is hereby struck on.
At the oral hearing before this court, learned Senior Counsel for the appellant also raised objection to a second brief filed on behalf of the 1st respondent on 7th July, 2003 on the grounds that a party to an appeal is only entitled to file a brief of argument in this court and that even though, learned Senior Counsel had withdrawn in court the earlier brief of 1st respondent filed on 5th July, 2003 on the ground that it was not personally signed by him the second brief was filed out of time.
However, I am satisfied with the explanation given by Chief Kehinde Sofola, SAN that the brief filed on 7th July, 2003, was filed within time having regard to Order 1 rule 7 of the Rules of this court.
In arguing the appeal, learned Counsel to the appellant, Chief M.I. Ahamba, SAN submitted thus – Issue No.1 – in considering whether a petition is defective for failing to comply with the relevant law, only the petition, and no other process should be examined to see if it complies with the applicable law in that manner in which on the analogy that it is only the statement of claim of a plaintiff that is looked into to see whether it discloses a cause of action. Reliance is placed on: (i) Adeyemi & Ors. v. Opeyori (1976) NSCC (Vol. 10) 455, (ii) Wenlock v. Moloney & Ors. (1965) 2 AER 871, (iii) Irene Thomas & Ors v. Olufosoye (1986) 1 NWLR (Pt.18) 669.
It is therefore submitted that it was not open to the tribunal to reject the petition of the petitioner only on affidavit evidence as the tribunal did.
It is also, contended that since the objection to the petition is based on S. 4(1)( c) of the 1st Schedule to the Electoral Act, that sub-paragraph ought to have been read in the con of subparagraph 4(6) and that the petition before the tribunal was adequate in the terms of pleading material facts for the purpose of sustaining the complaint of the appellant before the tribunal.
In his reply brief, learned Senior Counsel maintained that 1st respondent’s issue No.3 showed that there was conflict of facts between the affidavits filed by both parties and that therefore the lower tribunal lacked the competence to resolve the conflict without taking oral evidence. Reliance is placed on the recent decision of the Supreme Court in General Muhammadu Buhari and Anor. v. Alhaji Mohammed Dikko Yusuf & Anor. (2003) 14 NWLR (Pt.841) 446, delivered on 27th June, 2003, which it is submitted, dealt with the application of the provision of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002.
For the 1st respondent, learned Senior Advocate, Chief Kehinde Sofola in his respondent’s brief submitted as follows:
That the issues raised in the preliminary objection as to the root of the petition is based on the failure of petitioner to comply with the statutory requirements of the Electoral Act, 2002 and that the defect is with regard to a fundamental pre-condition in the act which is incurable and fatal to the petition.
It is also submitted that election petitions are of a kind of their own – sui generis, that they do not partake of other rules of civil or criminal procedure e.g. as to joinder, non-joinder and mis-joinder of parties, but that in election petitions the court must rely on the provisions of the Electoral Act, 2002. Reliance is placed on –
(i) Professor Ayua v. Rev. Father Moses Adasu & Ors. (1992) 3 NWLR (Pt.231) 598;
(ii) Chief Collins Obih v. Chief Samuel Mbakwe & Ors. (1984) 1 SCNLR 192, (1984) 1 SC 325;
(iii) Abah v. Robert (1999) 4 NWLR (Pt.597) 126.
It is also contended on the doctrine of stare decisis that the lower tribunal had no choice, but to follow the above decisions of superior courts as it did.
It is also contended that a preliminary objection can successfully be taken in an election petition so long as it cannot be said that fresh steps have been taken to foreclose the respondent from raising the objection. Reliance is placed on:
(i) Mudiaga – Ehrueh v. INEC (1999) 12 NWLR (Pt.630) 288.
(ii) Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334.
In this judgment, I have already struck out issue No. 1 as formulated by learned Counsel to the 2nd – 327th respondents on the objection of learned Counsel to the applicant. I have also ruled that the brief of 1st respondent filed in this court on 7th July, 2003, was filed within time and is competent.
I shall therefore, in dealing with issue 1 in the appellant’s brief only touch upon those aspects of the 2nd issue in the brief of 2nd 327th respondents which deal with issue 1, in the appellant’s brief. Issue No.1 in the appellant’s brief was adopted in the respondents brief.
The contention in the relevant parts of issue 2 in the brief of 2nd – 327th respondents with regard to issue No.1 is as follows-
That whereas paragraph 4(1)(c) of the 1st Schedule requires a petitioner mandatorily to state clearly, the holding of the election, the scores of the candidates and the person returned as the winner of the election, but petitioner merely states his own name, that of the 1st respondent as well as their respective scores without indicating that there were other candidates for that office of the election or their respective scores.
It is contended that annexure A to the affidavit of 1st respondent in support of the preliminary objection as well as annexure A in appellant’s counter-affidavit indicate at least two other candidates for the office at the election. It is therefore, the contention of the Electoral Commission and its officials as well as of 1st respondent that this is an incurable defect.
It is also contended that the provisions of Ss. 221 and 222 of the Constitution of the Federal Republic of Nigeria; Ss. 21(1); 23 and 151 of the Electoral Act, 2002, are clear and unambiguous and should be given their ordinary meanings respectively.
In the determination of this appeal, I consider that Ss. 131(1), 133 and 134(1)(b) and (c) of the Electoral Act and paragraphs 4(1), (2), (3)(a) and (6) of the 1st Schedule to Electoral Act, 2002.
“131(1) No election and no return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned joined as a party.
(2)……………………………
133(1) An election petition may be presented by one or more of the following persons
(a) a candidate at an election;
(b) a political party which participated at the election.
(2) The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.
13(1) An election may be questioned on any of the following rounds, that is to say:
(a) ………………………
(b) that the election was invalid by reason of corrupt practices or non-compliance wit the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) ………………………
(2) …………………………
“4(1) election petition under this Act shall –
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(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.
(2) The election petition shall be divided into paragraphs each of which shall be confined to a distinct issued or major facts of the election petition, and every paragraph shall be numbered consecutively.
(3) The election petition shall further –
(a) conclude with a prayer or prayer’s, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned, having polled the highest number of lawful votes cast at the election or that the election may be declared nullified, as the case may be; and
(b) …………………………
(4) …………………………
(5) …………………………
(6) An election which does not conform with sub-paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the tribunal or court.”
In the petition of the appellant, I find that on the face of the petition, appellant has complied with all the relevant provision of the Act and the 1st Schedule thereto.
The 1st respondent’s quarrel is that the names and scores of all the candidates as required by an item in paragraph 4(1)(c) of the 1st Schedule to the Act was not included in the petition. 1st respondent has produced exhibit A annexed to his affidavit in evidence of his complaint.
In rebuttal, the appellant has in his counter-affidavit at p. 163 of the record averred that not only were himself and his agents denied access to the venue where the 2nd and 3rd respondents announced the results of the candidates and their respective scores, he also averred inter alia, that he picked the contents stated in his petition with regard to the names of the candidates and their respective scores from a publication of 2nd and 3rd respondents in the Vanguard Newspaper of Tuesday, April 22nd, 2003 – exhibit A to the counter affidavit.
In my humble view, there has thus, been raised a conflict in the affidavit evidence of the parties on the vital and only contested issue between the parties which is as to the names of all the candidates and their respective scores and it thus behoves the lower tribunal to call for oral evidence to resolve the conflict.
(i) Daily Times (Nig.) Plc. v. Amaizu (1999) 12 NWLR (Pt. 631) 439.
(ii) Akujobi v. Ekanan (1999) 1 NWLR (Pt. 585) 96.
In so far as the names of parties interested in the petition are required by paragraph 4(1)(a), it is clear that even in the face of the conflicting affidavit evidence, only the petitioner and the 1st respondent are the only parties interested in the petition of the appellant.
Furthermore, the petitioner has brought in as respondents apart from the 2nd and 3rd respondents 324 other electoral officials, who took part in the conduct of the said election whose conduct he has complained against. This is in satisfaction of S. 133(2) of the Electoral Act.
On the whole, I am humbly of the opinion that on the face of the petition the petitioner has satisfied the requirements of the Electoral Laws and Regulations and ought to have been heard by the tribunal on its merit.
Owuru v. INEC (1999) 10 NWLR (Pt.622) 201; in contrast with Mudiaga Erhueh v. INEC (1999) 12 NWLR (Pt. 630) 288, whose petition virtually contained no particulars as required by the relevant Electoral Act and Rules and was declared by this court to have been rightly struck not by the election tribunal.
In the circumstance of this case, I hold, with respect to the learned lower tribunal, that the tribunal prematurely threw out the petition of the appellant. If the tribunal had any lingering doubts as to whether there was still any respect in which the appellant has failed to satisfy the requirements of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002, it ought either to have called for oral evidence to resolve the conflict in affidavit evidence or allowed the petition to be tried on its merit in order to enable the petitioner prove, if he can, the allegations which he has levelled against all or any of the 327 respondents. See General Muhammadu Buhari & Anor. v. Alh. Mohammed Dikko Yusuf & Anor. (2003) 14 NWLR (Pt.841) 446.
To have thrown the petition out summarily as the tribunal did was, with respect, to have shut the gates of the hall of justice against the petitioner unheard. One is not saying that the petitioner is bound to succeed at the trial; but in my view, his case deserved a hearing in a trial.
I therefore resolve issue 1 in favour of the appellant.
In resolving issue 1, I have said enough to resolve issues 2 and 3 in favour of the appellant.
For these and the other reasons given by my learned brother, Muhammad, jCA in the lead judgment,
I too, would allow the appeal. I too, make an order that the petition be remitted to the appropriate election tribunal for Rivers State to be tried on its merit by another panel.
I also, abide by all the other orders in the lead judgment, including the order as to costs.
SANUSI, J.C.A.: The lead ruling of my learned brother, R. D. Muhammad, JCA, has been read in advance by me. While agreeing with the reasoning and conclusion reached that the appeal has merit and should be allowed, nevertheless, I would also like to make some comments in one of the salient points canvassed by the parties when arguing the appeal before us.
The facts that gave rise to this appeal have been succinctly set out in the leading ruling, hence, I need not repeat them again. Suffice it to say however, that at election tribunal the 1st respondent filed a notice of intention to rely upon a preliminary objection grounded upon the followings:-
1. That the petition by the appellant herein was not in accordance with the provisions of Electoral Act, 2002 and the provisions of First Schedule to the said Act.
2. That the said petition did not state the names of all candidates at the election and the votes of each candidate and person returned as the winner of the election as required by the provisions of paragraph 4(1)(c) of the 1st Schedule to the said Act; and
3. That the candidates at the election were more than the candidates mentioned in paragraph 3 of the said petition.
In an affidavit supporting the preliminary objection sworn to by one Oris Onyiri, it was stated inter alia, as follows:
Paragraphs
3. In the governorship election held in Rivers State on 19/4/2003, over twelve candidates contested the election including the petitioner and the applicant.
5. Nowhere in the said petition did the petitioner disclose the names of the candidates, who contested the election and the scores of each candidate.
6. It is not correct as shown in paragraph 3 of the petition that the only candidates at the said election, were the petitioner and the applicant.
7. I know as a fact that one of such candidates, who took part in the election is Bishop Elekanah Harison, who is the petitioner in petition No.NAGLEP/RV/8/2003 pending before the tribunal a copy of which is exhibited herewith as exhibit A.
Responding to the preliminary objection of the 1st respondent, the present appellant filed a counter-affidavit wherein he made some averments, the relevant ones are also reproduced hereunder:
4. That on April 20th, 2003, my agents and I were not granted access to the venue where the 2nd & 3rd respondents announced the results of the candidates and their scores.
5. That the said scores and the names of the candidates were later published in the vanguard Newspaper of Tuesday, April 22nd, 2003.
6. That in the said publication, the names of the candidates and their scores as announced by 2nd and 3rd respondents was published.
7. That Abia State, Bayelsa State, Ogun State, Osun State, Rivers State, Enugu State, Oyo State, Kwara State and Imo State, had the names of the candidates and the scores as announced by 2nd and 3rd respondents.
8. That as it concerns Rivers State the candidates names were Peter Odili (the 1st respondent herein) and Sergeant Awuse (the petitioner herein).
9. That no other candidate(s) apart from the two stated above was named by 2nd and 3rd respondents, when it announced results or in the publication of the Vanguard Newspaper. A certified true copy of the Vanguard Newspaper of April 22nd, 2003 is hereby attached and marked exhibit A.
10. That no election document or forms announcing the said results was issued by 2nd and 3rd respondent to me or to my agents.
11. That since the date of the election till date 2nd and 3rd respondents have failed and refused to release any or all the electoral documents used in the said election.
12. That based on the 2nd and 3rd respondents’ refusal this Honourable Tribunal had to make an order to enable me the petitioner and my agents conduct the inspection of the polling documents.
13. That based on the announcement by 2nd and 3rd respondents and the newspaper publication as to the candidates and their scores the petitioner lodged my petition.
It is instructive to note that the applicant did not file any reply or further affidavit to controvert these averments in the respondent’s/appellant’s counter-affidavit.
The election tribunal took arguments of counsel in the objection and after it considered the affidavit filed by, the parties and arguments of counsel, in its considered ruling delivered on 11th June, 2003, which is now being appealed against, it rightly in my view, identified the issued contended by the parties wherein on page 268 of the record of proceedings it stated thus:
“The main issue in contention in the preliminary objection raised by the I” respondent/applicant is in respect of the non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. That the petitioner’s petition did not contain the votes of each candidate and the person returned as the winner.”
It went further to say at page 271/272, after reviewing the affidavit evidence before it including exhibit A (the Vanguard Newspaper Publication) attached to the appellant’s/respondent’s counter-affidavit) and found that the petitioner/appellant had not complied the provisions of paragraph 4(i)(c) of the 1st Schedule to the Electoral Act, 2002. It thereafter arrived at its conclusion to strike out the petition by, stating as follows:
“Consequently, the only option open to the tribunal in the circumstances is to strike out petition and it had no jurisdiction to entertain it.”
Having been dissatisfied with the decision of the tribunal to strike out his petition at that stage, the appellant filed this appeal before us.
I think the main issue for determination of this appeal is whether the petitioner/appellant has complied with the provisions of paragraph 4(i)( c) of the First Schedule to the Electoral Act of 2002; and if so was it correct for the tribunal to strike it out?
Perhaps it will be apt at this stage to reproduce the said provision which is the pith of the matter. Paragraph 4 of the Schedule to the Act provides as follows:
4(1) An election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(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.
(2) The election petition shall be divided into paragraphs each of which shall be confined to a distinct issue or major facts of the election petition and every paragraph shall be numbered consecutively.
(3) The election petition shall further: –
(a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned, having polled the highest number of lawful votes cast at the election or that the election may be declared nullified, as the case may be; and
(b) be signed by the petitioner or all petitioners or by the solicitor, if any, named at the foot of the election petition.
(4) At the foot of the election, there shall also be stated an address of the petitioner for service at which address documents intended for the petitioner may be left and its occupier.
(5) If an address for service is not stated as specified in sub-paragraph (4) of this paragraph, the petition shall be deemed not to have been filed unless the tribunal or court otherwise orders.
(6) An election petition which does not conform with sub paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the tribunal or court.
(7) The Form TF.001 set out in Schedule 2 of this Act or one substantially like it, shall be sufficient for the purpose of this paragraph.”
From the above provisions, it is clear that the provision talks of scores of candidate and not scores of “political parties” which did not field any candidate as the tribunal seems to be implying in its ruling quoted above. In any event, the petitioner/appellant in his counter-affidavit clearly stated that up to the time his appeal was heard by us, no results or documents were supplied to him as co-contestant of the election and such assertion was never denied or controverted by the 2nd and 3rd respondents, who are or are supposed to be the custodians of such documents.
I think in order to give a meaningful construction of the provisions of paragraph 4 of the 1st Schedule to the Act, it should not be considered in abstract or isolation. Regards must also be had to other related or relevant provision of the Act. Some of these relevant provisions are sub-paragraph (6) of paragraph 4 of the 1st Schedule to the Act as well as sections 133 and 136 of the Act. Paragraphs 4(1) (a) and (c) should be considered along side with these other provisions I mentioned above in order to arrive at meaningful interpretation of the former provisions. I shall also set them out below for ease of reference. Section 133 of the Act reads:
“1. An election petition may be presented by one or more of the following persons:
(a) a candidate at an election;
(b) a political party which participated at the election.
The person whose election is complained of is, in this Act referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party”. (Italics mine)
And section 136 of the same Act reads:
136. Subject to sub-section (2) of this section, if the tribunal or the court as the case may be, determines that a candidate, who was returned as elected was not validly elected on any ground, the tribunal or court shall nullify the election.
If the tribunal or court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority or valid votes cast at the election, the election tribunal or the court as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
On the motion of a respondent in an election petition, the election tribunal or court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of First Schedule of this Act.
Also, paragraph 49(1) of the 1st Schedule to the Act provides as follows:
“49(1) Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operatives, except otherwise stated or implied, shall not render any proceeding void, unless the tribunal or court so directs, but the proceeding may be set aside wholly or in part as irregular or amended or otherwise dealt with in such terms as the tribunal or court may deem fit and just.”
Let me start my comment with the interpretation of section 133(2) of the Act. From the wording of the subsection (i.e. sub-section 2) of section 133 of the Act, I am of the view that the sub-section clearly states or establishes the category of persons, who may be joined as respondent under the Act. The operative words in my view are “person whose election is complained of” and a presiding officer, a returning officer or any person who took part in the conduct of an election.” In other words, the persons who should be joined as respondents are of two categories, namely;
(a) person whose election is complained of that is to say, the person who was declared as successful or winner at the election; and
(b) officers who took part in the conduct of the election.
To my mind, these categories of persons are the only necessary parties to be joined in the election by virtue of the provisions of section 133(2) of the Act. A necessary party is a person, group of persons or body or an institution who or which the plaintiff or petitioner must make a party in order to show cause of action and establish a nexus between him, the complainant and the act complained of. See Jidda v. Kachallah (1999) 4 NWLR (Pt. 599) 426 at 432.
This court when interpreting the provisions of section 132(2) of the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999, which is in pari materia with section 133(2) of the Electoral Act of 2002 in Jidda v. Kachallah (supra) at page 432 stated per Pats-Acholonu, JCA (as he then was).
“In construing this provision, it is evident that the Decree has stated that the person whose election is being complained of is the 1st respondent, which means from the word go he has to establish a cause of action against the 1st respondent. If however, he has a complain against the conduct of an electoral officer or other officers hired by INEC, then in so far as it relates to the allegation made, they are necessary parties, which is to say they have a case to answer.”
My view is that the meaning of the subsection is plain and requires no other meaning than that, only the 1st appellant/1st respondent that should be joined as party to the petition and there is no obligation on the appellant/ respondent to join the candidate of AD and APGA and state other scores as the election tribunal seemed to have opined as this category of persons cannot be regarded as necessary parties.
An unsuccessful candidate at a election need not be joined. In other words, only the person who succeed at an election complained of can be sued as respondent in an election petition. I am fortified in this view by the recent decided authority of the Supreme Court in an unreported decision in suit No. SC.116/2003 delivered on 27th day of June, 2003. Therein, Uwaifo, JSC, in his lead judgment while considering the provisions of section 133 of the Act had stated at page 23 of the certified true copy of the judgment as follows: –
“It is manifest that section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate, who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under sub-section, 2 as identified in this judgment. As a matter of strict adherence to procedure all such persons or political parties can neither be respondents nor are they necessary parties.”
This well researched judgment of the apex court has given a clear interpretation of the provision and has now settled who proper or necessary parties to an election petition are supposed to be and has excluded unsuccessful candidates of political parties. It is a cardinal principle of construction of statutory provisions that where a statute specifically mentions things or persons, it is the intention of the legislators that those not mentioned are intended to be excluded. That is what is known in Latin as “expression unus est exclusion alterius” rule meaning that express mention of one thing in a statute automatically excludes any other which would have been included impliedly. See Udoh v. Orthopaedic Hospital Management Board (1993) 7 MWLR (Pt. 304) 139; Ogbuanyinya v. Okudo (1979) 6 – 9 SC 32.
I shall now turn to the provisions of paragraph 4(1)(c) of the 1st Schedule to the Act. As I posited above, the election tribunal has found that the petitioner/respondent did not comply with the provision of paragraph 4 (1)(c) since his petition did not contain the votes of each candidate and the person returned as the winner and for such reason, it said it had no option open to it in the circumstances than to strike out his petition and it went ahead to do so. Could that conclusion be correct? I think not, notwithstanding this provisions of paragraph 4(6) of the 1st Schedule to the Act. In the first place, as I mentioned earlier, the provisions of paragraph 4(1)(c) talks of scores of the candidates and not scores of political parties and there is no how “scores of candidate” can be interpreted to mean or to include the scores of a political party that did not field candidates. Moreso, the election tribunal observed that exhibit A, which the appellant had attached to his counter-affidavit showed that there were other candidates apart from the petitioner/respondent and the 1st respondent/applicant as contestants in the election.
In any case, it is beyond any dispute that the petitioner/respondent/appellant gave his excuse as to why he resorted to using the publication in the Vanguard Newspapers and that is because of the failure or refusal of INEC to furnish him with the election documents. The election tribunal in its ruling did not make any comment on the respondent’s/appellant’s call on it to make presumption under section 149(d) of the Evidence Act on the refusal of INEC to provide the documents to him (the petitioner).
In any case, the Supreme Court in the same case of Buhari v. Alhaji M. D. Yusuf (supra) had interpreted paragraph 4(1)(a) and (c) wherein it stated as below on page 23 of the lead judgment of Uwaifo, JSC:
“Paragraph 4(1)(a) and (c) and paragraph 45 of the First Schedule to the Act do not warrant any other interpretation being given to section 133(2). In respect of paragraph 4(c), it is enough to supply the particulars in the body of the petition without joining the said candidates as parties to the petition. Such particulars shall be in respect of candidates, who were validly nominated and who upon that basis contested the election, not any other candidates upon whom votes were wasted.”
Thus, from the above dictum of the Supreme Court it can not be said that the appellant/respondent has not complied with the provisions of the Act, since he had supplied the necessary particulars to be pleaded under the said paragraphs. Even if the scores of the candidates supplied by the appellant/respondent were short of the requirement of those pleaded than it would have been better that controversy on such be resolved through admissible evidence during the trial of the petition and such can only be done, if proper trial is conducted through the hearing or taking evidence.
Having said so, and in the light of what I have stated above, I am of the view that the election tribunal was wrong in holding that the provisions of paragraph 4(1) were not complied with. It was as well wrong for the tribunal to have struck out the petition on that ground alone as it apparently did. The appellant/respondent has duly complied with the provisions of the Act and I so hold.
For the above reasons and the more detailed ones ably and painstakingly set out in the leading judgment of my learned brother, Muhammad, JCA. I also, see merit in the appeal I accordingly allow it. I set aside the ruling of the election tribunal delivered on 11/6/2003. I order that the petition be remitted to a differently constituted election tribunal to hear and determine the petition on the merit. I abide by the consequential order made in the leading judgment, including one on cost.
ADENIJI, J.C.A.: I have read in advance, the lead judgment delivered, this morning by my learned brother, Muhammed, JCA, and having regard to the surrounding circumstances and the nature of the case, I do agree with his reasoning and conclusions, I also, abide by the orders made in the lead judgment.
Appeal allowed.
Appearances
Chief Mike Ahamba, SAN (with him, Tunji Ayanlaja, SAN;
Mike Okoye, Esq.; Faye Dikio, Esq.; Okey Okoroji, Esq.;
Vincent Obianoyi, Esq.; Princess Pat Ajudua; Ken Sarawiyo,
Esq. and T. Adebayo, Esq.)For Appellant
AND
Kehinde Sofola, SAN (with him, B.M. Wifa, SAN; D. West; J.
Ogboduma, Esq.; E. Thompson [Mrs.) and l Ogunniyi, [Miss.]
John Kalipa, Esq.For Respondent
