EKUN ADEBAYO YUSUFF v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
(2010)LCN/3782(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/I/EPT/HA/24/2008
RATIO
COURT: WHICH COURT HAS THE DISCRETION WHERE THERE IS CONFLICT OF MOTIONS
It is settled law that, where there is conflict of motions, as the case in this appeal, it is within the discretionary powers of the Tribunal or Court as the case may be, to decide which of the two conflicting motions to take first. It is the practice of Courts to take first, the one that may save the case, or the appeal, before considering the one that may terminate it. PER SIDI DAUDA BAGE, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT WHERE THERE IS PROPER EXERCISE OF DISCRETION
However, the proper role of a Court of Appeal where there is proper exercise of discretion is not to interfere with the discretion. To do so merely on the ground that the appellate Court would have exercised the discretion differently, is an assault on justice and not within the statutory powers of the Appeal Court. See:- Hadmor Productions Ltd. Vs. Hamilton (1983) AC 191 At 220, Dr. Sola Saraki Vs. N.A.B. Kotoye (1990) 6 SCNJ 31 at 51, where it was held:-
It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because, it would have exercised the discretion differently. See also Solanke Vs. Ajibola (1968) 1 All NLR 46 At 51. PER SIDI DAUDA BAGE, J.C.A.
INTERPRETATION: HOW ARE CLEAR AND UNAMBIGUOUS WORDS IN STATUTE INTERPRETED
The law is already settled on the interpretation of a statute where the words used are clear and unambiguous; it must be given its ordinary meaning. See Gani Fawehinmi Vs. Nigerian Bar Association (2002) 50 WRN 27; (1989) 2 NWLR (Pt.105) 558; U.T.C. Nigeria Ltd. Vs. Chief J. P. Pamotei & Ors. (2001) 43 WRN 63; (1989) 3 SC 79; Attorney General of the Federation Vs. All Nigeria Peoples Party (2003) 27 WRN 62; (2003) 15 NWLR (Pt.844) 400; Peoples Democratic Party Vs. Independent National Electoral Commission (1999) 11 NWLR (Pt.262) 201; P.N. Uddoh Trading Company Ltd. Vs. Sunday Abere (2001) 1 WRN 1; (2001) 11 NWLR (Pt.723) 114. PER SIDI DAUDA BAGE, J.C.A.
INTERPRETATION: POSITION OF THE LAW ON CONSTRUCTION OF STATUTE
In construction of statute or instrument, the law is that, every word or clause in an enactment, must be read and construed together not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to read a proper legislative intention, but also to make a consistent meaning of the whole statute.
See Oyeyemi Vs. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; Astra Industry Nigeria Limited Vs. N.B.C.L (1998) 3 SCNJ 97 at 115. PER SIDI DAUDA BAGE, J.C.A.
PROCEDURE: EFFECT OF RELIANCE ON TECHNICALITIES
Reliance on technicalities leads to injustice. Adhering strictly to technicalities is tantamount to sacrificing justice on the altar of technicalities. See Afovos Shipping Coy. &. Another Vs. Pagnan & Another. The Afovos (1982) 3 All ER18; Buhari Vs. Obasanjo (No.1) (2003) 47 WRN 44; Okafor Vs. Okafor (2002) 12 WRN 159; C and C Construction Company Ltd. Vs. Okhai (2004) 2 MJSC 134; Araka Vs. Ejeugwu (1999) 2 NWLR (Pt.589) 107. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
EKUN ADEBAYO YUSUFF – Appellant(s)
AND
(1) INDEPENDENT NATIONAL ELECTORAL COMMISSION
(2) THE RESIDENT ELECTORAL COMMISIONER
(3) THE RETURNING OFFICER, OGUN STATE
(4) ADIJAT M. ADELEYE OLADAPO & 8 ORS. – Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative House Election Petition Tribunal, Ogun State, sitting at Abeokuta in Petition No.EPT/OG/HA/18/2001 against the judgment of the Tribunal Coram:- Honourable Justices H. M. Tsammani, B. H. Ismail, C. U. Ukpe, U. M. Sadiq and C. O. Onyeabo, delivered on the 31st day of October, 2001 whereupon the Tribunal upheld the preliminary objection of the 1st, 2nd, 4th and 11th Respondents and that of the 3rd and 11th Respondent respectively. In consequence, the Tribunal struck out the petition of the Appellant as being incompetent.
The facts leading up to this appeal are briefly set out as follows The Elections were conducted into the Ogun State House of Assembly on the 14th April, 2007. The Appellant was a candidate who contested the seat for Ifo Local Government Constituency. At the conclusion of the election, the 1st, 2nd, 4th – 10th Respondents declared the 3rd Respondent who was the candidate of the Peoples Democratic Party (P.D.P.) as the winner. The Appellant was dissatisfied with the outcome of the election and filed a petition dated the 11th day of May, 2007 before the Tribunal, seeking the nullification of the said election for substantial non-compliance with the provisions of the Electoral Act. The Petitioner further pleads that, he contested the election, and has the right to be returned having been duly elected.
The Appellant filed a Notice of Appeal dated 19th of November, 2007 containing Nine (9) Grounds of Appeal from which the learned Counsel formulated Nine (9) Issues for determination in this appeal. Learned Counsel to 1st/2nd, 4th – 10th Respondents in their Brief of Argument dated 27th January, 2010 filed on the 28th January 2010, formulated Three (3) Issues for determination. Also, the learned Counsel to 3rd and 11th Respondents in their Brief of Argument dated 28th of March, 2008 filed same day, incorporated a Notice of preliminary objection and formulated Three (3) Issues for determination.
When this appeal came up for hearing on the 16th of March, 2010, the learned Counsel to the 3rd and 11th Respondents, A. F. Ogunlesi (Miss), drew the attention of the Court to the Notice of preliminary objection filed and dated 27th of January, 2010, and which argument is incorporated into the Brief of Argument of the 3rd and 11th Respondents.
NOTICE OF PRELIMINARY OBJECTION:
TAKE NOTICE that the 3rd and 11th Respondents herein intend at the hearing of this appeal to rely upon the following preliminary objection notice whereof is hereby given to you to seek:-
an Order of this Honourable Court striking out Grounds 1 and 2 of the Appellant’s Notice of Appeal and Issue One (1) in the Appellant’s Brief of Argument.
AND TAKE FURTHER NOTICE that the Grounds of the said objection are as follows:-
(1) That Grounds 1 and 2 purport to challenge a decision on priority of applications which does not arise for the ruling of the Tribunal given on the 31st of October, 2007.
(2) That Issue One (1) in the Appellant’s Brief of Argument is based on the said Grounds 1 and 2 which are incompetent.
The Notice of preliminary objection of the 3rd and 11th Respondents was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007. In arguing the said grounds of the objection as contained at Page 3 thereto, the learned Counsel submitted that, the decision of the Tribunal which was given on the 31st day of October, 2007, did not in anyway, relate to the question of priority of application and neither did the Tribunal make a decision on the subject matter of the Appellant’s application challenging the validity of the 3rd and 11th Respondent’s Reply. In the circumstances, I submit that Grounds 1 and 2 of the said Notice of Appeal is incompetent to the extent that the Appellant makes complaints against the validity.
Having not appealed on the issue of priority, I submit that Issue One (1) in the Appellant’s Brief of Argument is incompetent and should be struck out. In arguing Issue One (1), the Appellant proceeds to make submissions as to the validity or otherwise of the 3rd and 11th Respondent’s Reply. I submit that the Tribunal did not make any decision on the issue as to the competence or otherwise of the Respondent’s Reply and that the argument of Issue One (1) in the Petitioner’s Brief of Argument is incompetent and should be struck out. The Appellant on his own part did not file a Reply to this Notice of preliminary objection.
I have carefully considered the Notice of preliminary objection raised by the 3rd and 11th Respondents. It is settled law that, where there is conflict of motions, as the case in this appeal, it is within the discretionary powers of the Tribunal or Court as the case may be, to decide which of the two conflicting motions to take first. It is the practice of Courts to take first, the one that may save the case, or the appeal, before considering the one that may terminate it.
However, the proper role of a Court of Appeal where there is proper exercise of discretion is not to interfere with the discretion. To do so merely on the ground that the appellate Court would have exercised the discretion differently, is an assault on justice and not within the statutory powers of the Appeal Court. See:- Hadmor Productions Ltd. Vs. Hamilton (1983) AC 191 At 220, Dr. Sola Saraki Vs. N.A.B. Kotoye (1990) 6 SCNJ 31 at 51, where it was held:-
It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because, it would have exercised the discretion differently. See also Solanke Vs. Ajibola (1968) 1 All NLR 46 At 51.
I have seen Grounds 1 and 2 of the Appellant Notice of Appeal. It is directly challenging the exercise of the discretion of the Tribunal to hear and determine the preliminary objection of the 3rd and 11th Respondents and determine same, by deferring to hear the Appellant’s motion aimed at striking out the 3rd and 11th Respondent’s Reply to the petition for incurable incompetence.
Ground Two (2) of the Notice of Appeal also challenges the exercise of discretion of the Tribunal allowing the 3rd and 11th Respondents to argue their preliminary objection to the petition filed on the 11th of May, 2007 after been served with the petition; and after having earlier raised objection to the petition on a different ground successfully. Issue One (1) in the Appellant’s Brief of Argument is to the effect that:-
Whether the learned Justices in the trial Tribunal were right to have entertained the preliminary objection filed by the 3rd and 11th Respondents after, the Respondents had filed a reply to the petition and having taken several further steps in the petition.
It is very clear that, Grounds 1 and 2 of the Appellant’s Notice of Appeal and Issue One (1) of his Brief of Argument directly challenge the exercise of discretion of the Tribunal.
It is already settled by the Supreme Court in the authorities cited earlier that, it is not the duty of the Court of Appeal to interfere with the exercise of discretion of the High Court or Tribunal as in this case before us, this Court abide by the decision of the apex Court. The exercise of the discretion by the Tribunal therefore remains.
The Notice of preliminary objection of the 3rd and 11th Respondents brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007, filed on the 27th of January, 2010, is hereby granted. This Court makes an order striking out Grounds 1 and 2 of the Appellant’s Notice of Appeal and issue One (1) of the Appellant’s Brief of Argument, including all arguments proffered in support of the said Issue One (1).
Having struck out Grounds 1 and 2 of the Appellant’s Notice of Appeal and Issue One (1) of his Brief of Argument, I shall now proceed to consider the merit of the appeal. The learned Counsel to the Appellant filed on his behalf, Appellant’s Brief of Argument on the 17th day of March, 2008. It is also to be noted that this Court had earlier struck out Issue No.1 of the Appellant’s Brief of Argument. For the remaining issues proposed for the determination of the appeal are as follows:-
(2)Whether in the light of the Supreme Court judgment in Okafor Vs. Okeke (2007) FWLR (Pt.368) 1016 At 1020, the Tribunal was right in refusing to entertain the motion by Petitioner/Appellant for striking out the reply on the records for the 3rd and 11th Respondents dated 13th June, 2007, settled and signed by Wale Abeeb Ajayi & Co., a non-legal entity who is not on the roll as Legal Practitioner in Nigeria. (Ground 1).
(3) Whether the learned Justices of the Tribunal were right when they permitted the Respondents to move the Court to strike out the petition on an alleged lack of pleading of a material fact which the 3rd and 11th Respondents had expressly admitted in paragraph 2 of their reply to the petition to wit:- the Petitioner’s pleading in paragraphs 1 and 2 of the petition that she was a candidate at the election. (Ground 2).
(4) Whether in the light of the provisions of Sections 144 (1) (a) of the Electoral Act, 2006 and the facts contained in the petition admitted in the replies of Respondents to the Petitioner’s frontloaded written statement of witnesses, the learned Justices of the Tribunal were correct when they held that the Petitioner had not disclosed his locus standi to present the petition (Ground 6).
(5) Whether the Tribunal had not denied the Appellant the right to fair hearing by striking out the petition on technical grounds, without allowing the Appellant to prove his case on the merit as enjoined by binding appellate judicial decisions that as far as possible, the election petitions must be determined on the merit except in cases of fundamentally incurable defects or incompetence (Ground 9).
(6) Whether it is a requirement of Paragraph 4 (1) (a) and (b) of the First Schedule to the Electoral Act, 2006, that a Petitioner must plead his age, nationality, membership and sponsorship of a political party in order to make his petition as a candidate in an election competent notwithstanding that no request for such further particulars was sought by Respondents to the petition (Ground 4).
(7) Whether in the light of the provisions of Section 144 (2) of the Electoral Act, 2006, the Justices of the Tribunal were not wrong to have struck out the names of the 5th – 10th Respondents on the ground of misjoinder notwithstanding that the Independent National Electoral Commission (INEC) is made a party (Ground 7).
(8) Whether in the light of the provisions of Section 150 (1) of the Electoral Act, 2006 and the decision of the Supreme Court in Obasanjo Vs. Yusuf (2004) 9 NWLR (Pt.877) 186, the learned Justices of the Tribunal were not wrong when they allowed the 3rd Respondent to object to the joinder of INEC Officers, who on their own or their Counsel, did not object to their joinder (Ground 8).
(9) Whether the learned Justices of the Tribunal had jurisdiction to entertain the issue of the qualification, of the Petitioner to contest in the election under Section 106 of the Constitution of Nigeria, 1999 when Petitioner was not the winner of the election sought to be questioned in the petition (Ground 5).”
Learned Counsel to the 1st, 2nd, 4th – 10th Respondents formulated Three (3) Issues from the Grounds of Appeal as follows:-
(i) Whether (pursuant to Paragraph 49 (2) of the First Schedule to the Electoral Act, 2006), the Respondent’s objection was taken within a reasonable time.
(ii) Whether the Petitioner pleaded material facts in his petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same.
(iii) Whether the Tribunal properly struck out the names of the 5th – 10th Respondents.
Learned Counsel to the 3rd and 11th Respondents formulated Three (3) Issues from the Grounds of Appeal as follows:-
(i) Whether (pursuant to Paragraph 49 of the First Schedule to the Electoral Act, 2006), the Respondents objection was taken within reasonable time.
(ii) Whether the Petitioner pleaded material facts in the petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same.
(iii) Whether the Tribunal properly struck out the names of the 5th – 10th Respondents.
In his argument to Issues formulated for the determination of the appeal, learned Counsel to the Appellant argued Issues 1, 2 and 3 together, for the reason that the Counsel considered them intricately interwoven. However, it is to be noted that, this Court, in its consideration of the Notice of preliminary objection raised by the learned Counsel to the 3rd and 11th Respondents, had earlier on, struck out Issue One (1) of the Appellant’s Brief of Argument and all the arguments proposed in respect thereof. Attempt will be made therefore to sift out the arguments related to Issue No.1 which goes to no issue, leaving for consideration, arguments more related to Issues Two (2) and Three (3).
Learned Counsel to the Appellant submitted that the competence of an election petition on ground of irregularity can always be challenged by a Respondent, provided the Respondent acts timeously upon becoming aware of the defect, and before taking any further steps in the proceedings. See:- Paragraph 49 (1) (2) of the First Schedule to the Electoral Act, 2006. Learned Counsel to the Appellant submitted further that in the case of this appeal, the objection to the competence of the petition was not timeously taken immediately the Respondents became aware of it. The Respondents also took further several steps in the matter ever before the objection was raised. Reference is made to the Respondent’s motions challenging the competence of this petition which was not filed until September 24th 2007, whereas the petition was filed on 11th May, 2007; the replies to the petition were filed on June 13th, 2007.
Learned counsel to the Appellant submitted further that was it open to the Respondents to move the Court, in limine, at the time they did with a view to canvassing that the petition be set aside for irregularity for being a nullity. The approach of the Tribunal was to endorse this belated challenge to the petition on grounds of irregularity.
Learned Counsel to the Appellant further submitted that the questions raised were not jurisdictional but merely as to insufficiency of particulars of Petitioner’s pleadings. See:- Buhari Vs. Obasanjo (2003) 17 NWLR (Pt.850) 423 At 473.
Learned Counsel to the Appellant further submitted that, the failure of the Tribunal to realize this distinction between insufficiency of pleading and lack of jurisdiction of the Court to entertain a petition has occasioned a serious miscarriage of justice. See Paragraph 17 (1) & (2) of the First Schedule to the Act. See also the effect of failure to request for further particulars under analogous civil procedure rules as held by the Supreme Court in A. G. Leventis Nig.) Plc. Vs. Akpu (2007) 17 N. W.L.R (Pt.1063) 416 at 435 Paragraphs D-E. Learned Counsel to the Appellant submitted further that, while it is true that jurisdictional issue can be raised at any time, there is no corollary that a Court or indeed an Election Tribunal MUST determine same in limine and shut out the litigant from being heard on the merit of his case. These days, the settled approach of the Court is to roll over such objection till the end of trial where a case is one deserving of speedy hearing, especially where the subject matter is likely to lapse, as needs must be the case in election petition concerned with a fixed tenure of office. See Dapialong Vs. Dariye (2007) 8 NWLR (Pt.1036) 332 at 406: Inakoju Vs. Adeleke (2007) 4 NWLR (Pt.1025) 432.
Learned Counsel to the Appellant submitted further that, the injunction that a Court should determine an objection to jurisdiction first does not mean that trial on the merit must first be put in abeyance, except in the most glaring and irredeemable cases. All that is intended is that whenever the Court comes to a final decision, it must first resolve the issue of jurisdiction and then proceed to determine the merit of the case as well, especially a trial Court which must express its full opinion on matter agitated before it, so as to give the appellate Court the benefit of its opinion in rehearing the matter in the event of an appeal. See Senate President Vs. Nzeribe (2004) 9 NWLR (Pt.878) 251. See also, Paragraph 49 (2) (5) of the First Schedule to the Electoral Act, 2006.
Learned Counsel to the Appellant submitted further that, it is true that immediately after being served with the petition, the Respondents indicated in their reply dated 13/06/2007 that they shall object to the competence of the petition, and did file such objection by a motion on notice on the 13/06/2007 in which they challenged the competence of the petition on the grounds stated therein. But that objection was not determinative of the fate of this petition now on appeal.
Learned Counsel further submitted that election petition is regulated by its own special procedure and, except in case of Lacunae, ordinary principles that regulate civil procedure are in applicable. It is sui generis.
They are usually governed by their own special rules, as against the normal rules of Court. See Orubu Vs. NEC (1988) 5 NWLR (Pt.94) 323; OGU Vs. Ekweremadu (2006) 1 NWLR (Pt.961) 225 At 277.
Learned Counsel further submitted that, while it is conceded that raising of the Respondent’s first preliminary objection in their reply was in compliance with Paragraph 42(2) of the first Schedule to the Electoral Act, 2006, however, the reply in which the objection was first raised was incompetent and void, same having not been filed by a Legal Practitioner. The Reply was settled and signed by one WALE HABEEB AJAYI & CO., a non legal entity who is not on roll as Legal Practitioner, and lacks statutory right to file any process in Court. See Okafor Vs. Okeke (2007) FWLR (Pt.368) 1016 at 1020.
Learned Counsel further submitted that, the admission by Respondents that Petitioner was a candidate at the election totally forecloses them from complaining about failure to state these particulars in the petition, what they were entitled to ask for was FURTHER AND BETTER PARTICULARS of the facts by which Petitioner was a candidate at the election. See Paragraph 17(1)(2) of the First Schedule to the Electoral Act, 2006 on further and better particulars. Court is urged to resolve these Issues in favour of the Appellant.
On Issues Four (4) and Five (5), learned Counsel to the Appellant submitted that, the categories of persons who may present an election petition are clearly set out in Section 144 (1) of the Electoral Act, 2006. See Okwonkwo Vs. Ngige (2006) 8 NWLR Part 981 119 at 136 Paragraphs A-B. Learned Counsel further submitted that, the Position of the law is, once a Petitioner has pleaded that he was a candidate at an election, he has disclosed sufficient locus standi to present an election petition. See U.B.A. Vs. Ukachukwu (2004) 10 NWLR (Pt. 881) 224 At 255, Waziri Vs. Danboyi (999) NWLR (Pt.598) 239 at 246- 247, Rimi Vs. INEC (2004) All FWLR (Pt.210) 1312 at 1321-1322, P.P.A. Vs. Saraki (2007) 17 NWLR (Pt.1064) 53 at 499.
Learned Counsel further submitted that, the Tribunal was in error to have read specific pleading of qualification under the constitution into Section 144 (1) of the Electoral Act, 2006. The Supreme Court has held that, unless the Electoral Act specifically requires it, it is not proper to plead Issues bothering on the constitution in an election petition. See Obasanjo Vs. Yusuf 2004 9 NWLR (Pt.877) 144 at 222.
Learned Counsel further submitted that by striking out the petition without trial, the Tribunal effectively shut the Petitioner out from proving his case on the merit, particularly the fact that he was a candidate at the election and had a right to be elected and returned as a member of the State House of Assembly of Ogun State. Court is urged to resolve Issues Four (4) and Five (5) in favour of the Appellant.
On Issues Six (6) and Nine (9), learned Counsel to the Appellant submitted that the facts that Petitioner was not of age, was not duly sponsored, or that he was not a citizen of Nigeria should have been pleaded in the replies and tried along with Petitioner, the Respondents were foreclosed from taking those points that went to evidential merit of the petition having not joined issues with the Petitioner by way of a valid reply to the petition. See Buhari Vs. Yusuf (Supra). Learned Counsel to the Appellant submitted further that the Tribunal misconstrued the provisions of Paragraph 4 (1) of the First Schedule to the Electoral Act, 2006, which does not require statement of particulars; it requires specification of facts in support of the petition.
Learned Counsel further submitted that the Tribunal acted without jurisdiction in pronouncing on the qualification or non qualification of the 1st Petitioner to contest the election. The issue before the Tribunal was defined by the Respondent’s reply thereto. The excursion made by the Tribunal into Section 106 of the Constitution of the Federal Republic of Nigeria, 1999 was unnecessary. Court is urged to resolve these Issues in favour of the Appellant.
On Issues Seven (7) and Eight (8), learned Counsel to the Appellant submitted that the proviso to the Section 144 (2) of the Electoral Act, 2006 is to limit or exclude the operation of the rule that allegations against the conduct of an electoral official who is not joined as Respondent is not incompetent where the Independent National Electoral Commission is made a Respondent. See Obasanjo Vs. Buhari (2003) 17 NWLR (Pt.850) 510 at 569.
Learned Counsel further submitted that, in the light of the provision of Section 144 (2) of the Electoral Act, 2006, the learned Justices of the Tribunal were wrong to have struck out the names of the 5th – 10th Respondents on the ground of misjoinder, notwithstanding that the Independent National Electoral Commission is made a party. Learned Counsel to the Appellant further submitted that, in the light of Section 150 (1) of the Electoral Act, 2006 and in the case of Obasanjo Vs. Yusuf (Supra), it is submitted that, the Tribunal were wrong to have allowed the 3rd Respondent to object as to the joinder of INEC Officials who on their own or through their Counsel did not object to their joinder. The objection raised by the 3rd Respondent is thus superfluous. Learned Counsel finally submitted that, the Tribunal that struck out this petition, without hearing, ought to be a Tribunal of substantial justice and not technicalities. It should be more interested in substance than mere form, because justice can only be done if the substance of the matter is examined. Reliance on the technicalities leads to injustice. Adhering strictly to technicalities is tantamount to sacrificing justice on the altar of technicalities.
In reply, Learned Counsel to the 1st, 2nd, 4th – 10th Respondents submitted that, the objection of the Appellant to the hearing of objection which challenges the competence of the petition in limine, and stated should have adjourn the hearing of the objection unit trial. There is no judicial authority to support this so called rule of precedence. Indeed, authorities to the contrary are numerous.
Learned Counsel further submitted that, the general principle of law is that, a Court or Tribunal faced with an application challenging the competence or jurisdiction of proceedings before it has a duty to hear objection first before taking further steps in the proceedings. However, in appropriate circumstances the Court may on application of a party exercise its discretion to take the objection at the trial of the suit. See Waziri Vs. Danboyi (1999) 4 NWLR (Pt.598) 239 at 246; Tambco Leather Works Vs. Abbey (1998) 12 NWLR (Pt.548) 550: A.N.P.P. Vs. R.O.A.S.S.D. (2005) 6 NWLR (Pt.149) 170- 171. Learned Counsel further submitted on what amount to taking steps, Respondent will not be prevented from challenging a petition pursuant to Paragraph 49 (2) unless hearing of the petition has commenced. See Bichi Vs. Haladu (2003) 14 NWLR (Pt.841) 624 Ratio 2; Buhari Vs. Obasanjo (2003) 17 NWLR (Pt.850) 485.
Learned Counsel further submitted that, there is a clear difference between the effects of the rules vis-‘C3 -vis Section 147 (3) of the Electoral Act. By Paragraph 49 (2) which places limitations on the Respondent’s right to bring an application to strike out the petition unwittingly circumstances the provision of Section 147 (3) of the Electoral Act and is inconsistent with it and to that extent is applicable where the subsidiary legislation (such as the rule of procedure in this case) conflict with that of the enabling Act or other statute, the provision of the subsidiary provisions is ultra vires and inapplicable. See Nwanezie Vs. Idris (993) 3 NWLR Page 1 at 16; See also Buhari Vs. Obasanjo (Supra). Learned Counsel further submitted that the requirement of locus standi is mandatory because, the judicial power of the Court are constitutionally limited to matters in which parties have it. In determining the issue of locus standi the Court must thereof constantly bear in mind that its judicial powers are being involved and in matter which such powers can be extended are, as provided by Section 6 (6) (b) of the constitution. Therefore, where a Plaintiff has no locus standi, the Court has no jurisdiction to entertain the action. See Oloriode Vs. Oyebi (1984) 5 SC 1. Court is urged to resolve this Issue in favour of the Respondents.
On Issue Two (2), which correspondents with Appellant’s Issues 4 and 5 of his Brief. Learned Counsel submitted that, whether a Statement of Claim or petition if admitted, discloses sufficient material to vest the Petitioner with legal capacity to sue. See Thomas Vs. Olufosoye (1986) 1 NWLR (Pt.669) 685.
Learned Counsel submitted further that, the Tribunal was correct in its judgment when it held that, the Appellant failed to specify his right to present the petition on the account of his failure to plead his political party, in compliance with the Schedule to the Act which requires him to specify his right to present the election petition. In other words, must amplify on the capacity which he relies to bring the petition. He cannot barely repeat Section 144 (1) (a) of the Electoral Act, 2006 and no more. See Egolum Vs. Obasanjo (Supra).
On Issue Three (3), whether the Tribunal properly struck out the names of the 5th – 10th Respondents. Learned Counsel submitted that, the argument of the Appellant to the effect that there is no requirement to fair officers whose conduct is complained of in a petition. This argument is based on the provision of Section 144 (2) of the Electoral Act and the Common Law Principle that no agent of a disclosed principal need be joined in an action which can be pursued against the principal.” It is our contention in this regard that, the functions of presiding officers and other electoral officers are creations of statute and that the said officers swear their oath of allegiance to the Federal Republic of Nigeria and not INEC. Under the Electoral Act, the said officers are responsible for their actions and it is because of this responsibility that they are made statutory Respondents, pursuant to Section 144 (2) of the Electoral Act. In the circumstances, it will not be sufficient to have INEC as a party to an election petition. The provisions of Section 144 (2) require that such officer is shown to have acted as an agent of the commission. See Nwankwo Vs. Yar’adua (Supra). The Tribunal acted properly in striking out the paragraphs that Respondents complained of. Learned Counsel submitted finally that, in the light of the foregoing submission, this Court is urged to dismiss this appeal and uphold the decision of the Tribunal.
Learned Counsel to the 3rd and 11th Respondents adopted exactly the three (3) Issues formulated by the learned Counsel to the 1st, 2nd, 4th – 10th Respondents. He repeated in verbatim all the arguments canvassed by learned Counsel to the 1st, 2nd, 4th – 10th Respondents in respect of the three (3) Issues formulated. All the said arguments of the learned Counsel to the 1st, 2nd, 4th – 10th Respondents to the three (3) Issues formulated, are adopted as arguments canvassed by the learned Counsel to the 3rd and 11th Respondents in their Brief of Argument.
Finally, Learned Counsel to the 3rd and 11th Respondents urged this Court to dismiss the appeal and uphold the decision of the Tribunal.
The Appellant’s counsel filed a Reply Brief dated and filed the 4th February, 2010. Learned Counsel submitted that, this Court has now put it beyond any doubt that, the provisions of Section 144 (1) must be read in conjunction with the provisions of Section 145 (1) (d) of the Electoral Act, 2006 to discover that, a person who was validly nominated by a political party to contest in an election but was unlawfully excluded, is a candidate under Section 144 (1) (a) and has the locus standi to present an election petition. See P.P.A. Vs. Saraki (2007) 17 NWLR (Pt.1064) 453.
Learned Counsel further submitted that, the lower Tribunal purportedly based its decision on the Supreme Court’s judgment in Egolum Vs. Obasanjo (1999) 7 NWLR (Pt.611) 355, but the Supreme Court in that case said, its decision in that appeal, was based on the fact that, the Appellant in that appeal, was not a candidate who contested the election. Learned Counsel further submitted that, the Appellant whose petition shows that he not only was a candidate bar he actually contested in the election, and votes were recorded in his favour, cannot rightly be said not to have an interest in the petition; wherein he had made copious averments to the effect that the declaration of the 3rd Respondent as a duly elected member of House of Assembly for Ifo Constituency of Ogun State was contrary to the provisions of the Electoral Act, 2006. See Senator Ibikunle Amosun Vs. INEC & 259 Ors. (unreported) in Appeal No. CA/I/EPT/GOV/10/2007.
Learned Counsel to the Appellant submitted further that, the resolution of this appeal is left to only one issue whether or not the Appellant who contested the election has no locus standi to present petition before the lower Tribunal. See Seven-up Bottling Company Ltd Vs. Abisola Company Ltd. (2001) 13 NWLR (Pt.730) 469 At 493-494, 514 and 516; Anyaduba Vs. N.R.T.C. Ltd. (1992) 5 NWLR (pt.243) 535 at 564; Ishaya Bamaiyi Vs. The State (2001) 8 NWLR (Pt.715) 270 at 285, 286, 294-295. Learned Counsel finally submitted that even if the Issues 1 and 3 as formulated in the Respondent’s Brief are resolved in favour of the Respondents, the resolution of their Issue 2 and Appellant’s Issues 3, 4 and 5 raised in the appeal, should still succeed.
I have carefully considered the arguments proffered by all the parties in this appeal. To my mind, this appeal is limited to a lone issue; and that is whether or not the Appellant who contested at the election had no locus standi to present the petition before the lower Tribunal.
The lower Tribunal had held that by the effect of Section 144(1)(a), the Appellant had not disclosed his locus standi to present the petition.
The lower Tribunal was persuaded when moved by the Respondents to strike out the Appellant’s petition by the effect of Paragraph 1 of the petition; wherein the Appellant states at Page 11 of the records as follows:-
Your Petitioner, Olakunle Oluomo, is a person who voted, had right to vote, was a candidate, had the right to be returned or elected at the above election.
The arguments put up by the 3rd and 11th Respondents before the Tribunal which prompted it to strike out the entire petition, reproduced from the 3rd and 11th Respondents Brief of Argument at Page 13 as follows:-
To demonstrate his locus standi as determined by a combined reading of Paragraph 4 (1) of the First Schedule to the Electoral Act, 2006 and Section 106 of the Constitution of the Federal Republic of Nigeria, 1999, the facts set out in the Section must be clearly pleaded failing which the petition is incompetent. Clearly, if he fails to plead his qualification, he has failed to specify his right to present the petition.
The Tribunal at Page 250 of the Record in its Ruling held:-
Appellant failed to specify his right to present the petition on the account of his failure to plead his political party in compliance with the schedule to the Act which requires him to ‘specify’ his right to present the election petition. In other words, he must amplify on the capacity which he relies on to bring the petition. He cannot barely repeat Section 144 (1) (a) of the Electoral Act and no more. See Egolurn Vs. Obasanjo (1999) 7 NWLR (Pt.611) 355.
The pertinent point to determine is, who is qualified to present an election petition under the Electoral Act? The answer is as provided for by Section 144 (1) (a) of the Electoral Act, 2006, which provides:-
An election may be presented by one or more of the following persons:-
(a) a candidate in an election;
(b) a political party which participated in the said election.
The said provision above had been given a judicial interpretation by this Court. See Okwonkwo Vs. Ngige (2006) 8 NWLR (Part 981) 119 At 136 per Adekeye, JCA, as she then was and now (JSC) held:-
Section 133 (1) of the (Electoral Act, 2002) which equivalent to Section 144 (1) of the Electoral Act, 2006, provides for persons who may present a petition. It is either one or both of:- (a) a candidate at an election, (b) a political party which participated at the election.
See also Effiong Vs. Ikpeme (1999) 6 NWLR (Pt.606) 206; Okwonkwo Vs. INEC (2004) 1 NWLR (Pt.854) 242.
I cannot see the amplification the lower Tribunal is looking for from the Appellant after stating as required by Section 144 (1) of the Electoral Act, 2006 that he was a candidate at the election.
The law is already settled on the interpretation of a statute where the words used are clear and unambiguous; it must be given its ordinary meaning. See Gani Fawehinmi Vs. Nigerian Bar Association (2002) 50 WRN 27; (1989) 2 NWLR (Pt.105) 558; U.T.C. Nigeria Ltd. Vs. Chief J. P. Pamotei & Ors. (2001) 43 WRN 63; (1989) 3 SC 79; Attorney General of the Federation Vs. All Nigeria Peoples Party (2003) 27 WRN 62; (2003) 15 NWLR (Pt.844) 400; Peoples Democratic Party Vs. Independent National Electoral Commission (1999) 11 NWLR (Pt.262) 201; P.N. Uddoh Trading Company Ltd. Vs. Sunday Abere (2001) 1 WRN 1; (2001) 11 NWLR (Pt.723) 114.
Again, the Electoral Statute prescribes the contents of an election petition. Paragraph 4 of the First Schedule to the Electoral Act, 2006, for instance, requires that an election petition 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 clear upon the formal contents of an election petition as required by law, the lower Tribunal did not find any fault with the petition other than the failure of the Petitioner who stated he was a candidate at the election, but did not state his political party. From the formal contents of an election petition stated above, there is no requirement for a candidate to state his political party; for the lower Tribunal to strike out the entire petition on that ground alone is rather unfortunate.
Again also, on the emphasis by the Tribunal for candidate to state his political party in the petition, the Tribunal sought reliance on the provisions of Section 106 (d) of the Constitution of the Federal Republic of Nigeria, 1999. For a person to be qualified for an election as a member of House of Assembly, Section 106 (d) of the 1999 Constitution provides-
He is a member of a political party and sponsored by that party.
In construction of statute or instrument, the law is that, every word or clause in an enactment, must be read and construed together not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to read a proper legislative intention, but also to make a consistent meaning of the whole statute.
See Oyeyemi Vs. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; Astra Industry Nigeria Limited Vs. N.B.C.L (1998) 3 SCNJ 97 at 115.
To my mind, the provisions of Section 106 (d) of the 1999 Constitution, membership of a political party and the sponsorship by that party are all pre-election matters, which deal with the qualification to contest or not to contest any election. All vital information in respect thereof must be contained in the affidavit submitted by the candidate for screening of his eligibility. The lower Tribunal clearly does not have jurisdiction on pre-election matters. The provisions of Section 32 (4) of the Electoral Act, 2006, is quite consistent with Section 106 (d) of 1999 Constitution.
Section 32 (4) of the Electoral Act; 2006 provides:-
Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court against such person seeking a declaration that the information contained in the affidavit is false.
Such information as to qualification of a candidate, sponsorship by a political party, or any form of eligibility, can only be filed at the State High Court or Federal High Court, but not the Election Tribunal by the effect of Section 32 (4) of the Electoral Act, 2006.
Section 145 (1) (a) of the Electoral Act, 2006 provides:-
An election may be questioned on any of the following grounds:-
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non compliance with the provision of this Act.,
(c) that the Respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
These are the valid areas the Election Tribunal should concern itself and to ensure the petition is filed within the confines of Section 145 (1) (a) of the Electoral Act, 2006. I will only need to add that the fact that the Appellant was a candidate at the election was not made an issue by the Respondents in their application before the lower Tribunal. From the records of the lower Tribunal, the Appellant was a candidate at the election, he, in fact contested at the election and votes were recorded for him. Failure to state that, he was the candidate of a particular political party alone cannot vitiate his petition as wrongly held by the lower Tribunal.
Also, at Page 250 of the records in its Ruling, the lower Tribunal had sought reliance on the Supreme Court decision in Egolum Vs. Obasanjo (Supra). The decision of the Supreme Court above is easily distinguishable from the instant appeal before this Court. In Egolum’s case, the claim before the Court was that, he was a person who had a right to contest at the election. The Court held that, it was not enough for a Petitioner to aver that he had a right to contest the election, he had to go further by setting out fully and explicitly how he came to have the right to present the petition. In the absence of the particulars upon which the Petitioner claimed to have had the right to present the petition, he cannot be said to have established his locus standi to present petition. Egolum was not a candidate at the election and did not contest the election. What he had sought for was his right to contest the election. In the instant appeal, the Appellant as Petitioner, was a candidate at the election and indeed contested the election, and scores recorded for him. His right to contest the election was not the issue at the lower Tribunal. The stage of challenge of the petition by the Appellant was clearly after the conduct of the election and had sought to challenge the validity of the declaration of the 3rd Respondent.
Before I conclude, let me say that, the lower Tribunal ought to have paid attention to substantial justice than mere form, because, justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. Adhering strictly to technicalities is tantamount to sacrificing justice on the altar of technicalities. See Afovos Shipping Coy. &. Another Vs. Pagnan & Another. The Afovos (1982) 3 All ER18; Buhari Vs. Obasanjo (No.1) (2003) 47 WRN 44; Okafor Vs. Okafor (2002) 12 WRN 159; C and C Construction Company Ltd. Vs. Okhai (2004) 2 MJSC 134; Araka Vs. Ejeugwu (1999) 2 NWLR (Pt.589) 107.
In the final analysis, this appeal is allowed. The Ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal, Ogun State, in Petition No. EPT/OG/HA/18/07, delivered on the 31st of October, 2007 with the Coram of Justices H. M. Tsammani, B. H. Ismail, C. U. Ukpe, U. M. Sadiq and C. O. Onyeabo, is hereby set aside by this Court.
The President of the Court of Appeal, in the exercise of his constitutional powers, is to constitute a fresh Election Petition Tribunal to hear this petition.
Appeal succeeds. No Costs is awarded.
STANLEY SHENKO ALAGOA, J.C.A. I read before now the judgment just delivered by my brother S. D. Sage, J.C.A. and I am of the view that the Appeal is meritorious and should succeed. I also abide by the orders therein contained.
MODUPE FASANMI, J.C.A. I read before now the judgment delivered by my learned brother S. D. BAGE J.C.A.
The issues have been dealt with in details. I entirely agree with the decision arrived at in holding that the appeal succeeds.
The Judgment of the lower tribunal is hereby set aside. I also abide with the consequential orders made therein.
Appearances
Appellant’s Counsel, A. A. Yesufa Esquire, was absent.For Appellant
AND
A. F. Ogunlesi (Miss)
A. F. Ogunlesi (Miss) also held brief for B. Babajide (Mrs.)For Respondent
