HON. DINO MELAYE & ANOR V. YUSUF AYO TAJUDEEN & ORS
(2011)LCN/4789(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of September, 2011
CA/A/EPT/419/11
RATIO
SIGNING OF ELECTION PETITION: EFFECT OF AN ELECTION PETITION NOT BEING SIGNED BY THE PETITIONER(S) OR BY THE SOLICITOR NAMED AT THE FOOT OF THE ELECTION PETITION
By Paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010, (as Amended) it is provided that:- The Election Petition shall further: (b) be signed by the Petitioner or all Petitioners or by the Solicitor if any named at the foot of the Election petition.” (underlining mine). It is my view that the use of the word “shall” is mandatory in the Provisions set out above and non-compliance with it in an election petition filed renders such a petition void. By virtue of the said Provisions, an election Petition shall be signed by the Petitioners or by the Solicitor if any named at the foot of the Election Petition. In the instant Appeal under consideration, the Petition was not signed by the Solicitor named at the foot of the Petition as required by the law. Rather it was signed by an unnamed person. It is my view that a person signing a process on behalf or for a Principal Partner in the Chambers must state his name and designation to show that he is a Legal Practitioner whose name is ascertainable on the roll of registered Legal Practitioners. In Okafor vs. Nweke (2007) 3 S.C.N.J. Page 185 it was held among others by the Supreme Court that an Originating Process which activates the Jurisdiction of the Court must be signed by a Legal Practitioner known to Law. In the circumstance the Petition under consideration is incompetent. See the following cases:- -Action Congress v. Kaigama (2008) 8 NWLR Part 1088 Page 165; -Peak Merchant Bank Ltd v. NDIC (2011) 12 NWLR part 1261 at page 253 particularly at 260 – 263. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA (OFR) Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
(1) HON. DINO MELAYE
(2) ALL NIGERIA PEOPLES PARTY Appellant(s)
AND
(1) YUSUF AYO TAJUDEEN
(2) PEOPLES DEMOCRATIC PARTY (PDP)
(3) INDEPENDENT NATIONAL ELECTORAL COMMISSION
(4) YEMISI OGUNMOLA-DAOMI
(The Returning Officer, Kabba/Bunu Ijumu Federal Constituency) Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of National Assembly Election Petition Tribunal holden at Lokoja, Kogi State, delivered on 15th July, 2011 wherein upon the preliminary objections filed on behalf of the 1st and 2nd Respondents, the Tribunal struck out the Appellants’ Petition for being incompetent.
The ground relied upon by the Tribunal for striking out the Petition was that the Petition was neither signed by the Petitioners nor their Solicitor named at the foot of the Petition but by an unnamed and unidentifiable person who is unknown to law.
The main issue in this Appeal has been narrowed down to whether the Election Tribunal correctly interpreted the Provision of Paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010 as Amended.
It was submitted on behalf of the Appellants that the use of the word “shall” in an enactment such as Paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010 (as Amended) connotes permissive or directory requirement and its non-compliance ought not to be examined in the abstract.
The learned Counsel for the Appellants urged that the Appeal be allowed and that the Petition be heard on its merit.
The learned Counsel for the 1st Respondent stated that it is not in dispute that the Petition, the subject matter of this Appeal was not signed by the Petitioners themselves nor by their Solicitor named at the foot of the Petition, but rather by an unnamed and unidentifiable person who signed for “Patrick I. N. Ikuweto, SAN, FCIARB”.
It was submitted on behalf of the 1st Respondent that the signing of the Appellants’ Petition by an unknown and an unidentified person rendered it incurably bad and that the Petition was not initiated by due process of law.
The learned Counsel for the 2nd Respondent also submitted that the failure of the Petitioners to comply with the mandatory provisions of Paragraph 4(3)(b) of the First Schedule of the Electoral Act 2011, rendered the Petition incompetent.
By Paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010, (as Amended) it is provided that:-
The Election Petition shall further:
(b) be signed by the Petitioner or all Petitioners or by the Solicitor if any named at the foot of the Election petition.”
(underlining mine).
It is my view that the use of the word “shall” is mandatory in the Provisions set out above and non-compliance with it in an election petition filed renders such a petition void. By virtue of the said Provisions, an election Petition shall be signed by the Petitioners or by the Solicitor if any named at the foot of the Election Petition.
In the instant Appeal under consideration, the Petition was not signed by the Solicitor named at the foot of the Petition as required by the law.
Rather it was signed by an unnamed person. It is my view that a person signing a process on behalf or for a Principal Partner in the Chambers must state his name and designation to show that he is a Legal Practitioner whose name is ascertainable on the roll of registered Legal Practitioners.
In Okafor vs. Nweke (2007) 3 S.C.N.J. Page 185 it was held among others by the Supreme Court that an Originating Process which activates the Jurisdiction of the Court must be signed by a Legal Practitioner known to Law.
In the circumstance the Petition under consideration is incompetent.
See the following cases:-
-Action Congress v. Kaigama (2008) 8 NWLR Part 1088 Page 165;
-Peak Merchant Bank Ltd v. NDIC (2011) 12 NWLR part 1261 at page 253 particularly at 260 – 263.
In view of the foregoing it is my view that this Appeal lacks merit and it is dismissed.
Since the Petition has been held to be defective and incompetent, the Cross Appeals filed on behalf of the 1st and 2nd Respondents are hereby dismissed.
Full reasons for this Judgment shall be delivered on a date to be communicated to Counsel.
ZAINAB A. BULKACHUWA, OFR, J.C.A.: The petition lacks competence having not complied with the provisions of paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010 (as Amended) and the Lower Tribunal was right to find that it lacks the jurisdiction to hear and determine the petition.
I find no substance in both the appeal and the cross-appeal, all based on an incompetent petition. I accordingly dismiss them.
Full reasons for this judgment will be given at a later date.
HUSSEINI MUKHTAR, J.C.A.: The Appellants’ Petition at the tribunal below having been signed by an unnamed person “for P.I.N. Ikwueto, SAN” is incurably defective. The election petition ought to have been signed by either the petitioner himself or his legal practitioner. There is no third avenue for signing of petition under the Electoral Act. A signature by an unknown person on behalf of a legal practitioner falls short of the requirement of paragraph 4 (3) (b) of the First schedule to the Electoral Act 2010 and consequently renders the Appellant’s Petition incompetent.
The incompetent petition was rightly struck out by the lower tribunal.
The appeal therefore, lacks merit and same is accordingly dismissed by me.
The two cross appeals filed by the 1st and 2nd Respondents are equally affected by the same virus. There being no competent petition at the lower tribunal, the cross appeals equally lack merit and are similarly dismissed.
Full reasons for this judgment will follow later.
Appearances
MR. P. I. N. IKWUETO S.A.N with him are C. I. MBAERI, I. BOZIMO, P. O. NWANKWO and MISS NNEKA NWATALARI for the 1st & 2nd Appellants.For Appellant
AND
CHIEF EMEKA NGIGE S.A.N with him are K. OLOWOOKERE,
S. OGUNLEYE, F. FEMI, O. OLORUNSOLA for the 1st Respondent/Cross Appellant.
CHIEF A. O. AJANA with him are MAFO, OLA JOHN, O. AKUYIBO and S. G. IKUESAN for the 2nd Respondent/Cross Appellant.
3rd & 4th Respondents duly served but not represented.For Respondent
