HON. DR. WILLIE OGBEIDE (M) (PDP) CANDIDATE v. MR. R. E. ARIGBE OSULA (M) (A.N.P.P.) CANDIDATE & ORS (2013)

HON. DR. WILLIE OGBEIDE (M) (PDP) CANDIDATE v. MR. R. E. ARIGBE OSULA (M) (A.N.P.P.) CANDIDATE & ORS

(2013)LCN/6371(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 2nd day of July, 2003

CA/B/NAET/EDS/94/2003

JUSTICES

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Court of Appeal of Nigeria

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

Between

HON. DR. WILLIE OGBEIDE (M) (PDP) CANDIDATE Appellant(s)

AND

1. MR. R. E. ARIGBE OSULA (M) (A.N.P.P.) CANDIDATE
2. OLUFEMI OLUMISE AYENI (Returning Officer Oredo, Federal Constituency of Edo State)
3. THE ELECTORAL OFFICER, OREDO LOCAL GOVERNMENT AREA
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

THE INTERESTED PARTIES IN AN ELECTION PETITION

This erroneous view has now been laid to rest by the recent Supreme Court decision in General Muhammadu Buhari v. Alhaji Mohammed Dikko Yusuf (2003) 14 NWLR (Pt. 841) 446. The Supreme Court in considering who interested parties to a petition should be, interpreted Section 133 (2) of the Electoral Act, 2002 and paragraph 4 (1) (a) and (c) of the First Schedule to the Electoral Act held 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 who lost or which may not have fielded any candidate for a particular seat a Respondent other than the statutory Respondents envisaged under subsection (2) …”
In the judgment of Uwaifo, JSC, an election petition can only be brought against a person elected or returned who is then regarded as the Respondent. He went on to express the view that the persons, who can justifiably be regarded as parties interested in the election petition are the Petitioner(s) and the statutory Respondent(s).

?The statutory Respondents as defined by Section 133(2) of the Electoral Act, 2002 are:
(i) The person whose election is complained of (usually the person who is returned as the winner of the election); and
(ii) 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 be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party. PER MUNTAKA-COOMASSIE, J.C.A.

THE NECESSARY PARTIES TO BE INCLUDED IN AN ELECTION PETITION

Who are the necessary parties that must be included in an election petition, to make it competent? Section 133 of the Electoral Act, 2002 , provides an answer. It states:
“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 that 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” PER AKA’HAS, J.C.A.

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.C.A. :(Delivering the Leading Judgment): The Appellant herein was the Petitioner at the National Assembly/Governorship and Legislative Houses Election Tribunal, sitting in Benin, hereafter, referred to as the Tribunal. He was sponsored by the People Democratic Party (P.D.P.) to contest the election into the House of Representatives for Oredo Federal Constituency, Edo State. The 1st Respondent, Mr. E. Arigbe Osula, contested under the platform of the All Nigerian Peoples Party (A.N.P.P.). The election was held on 12/4/03 and at the close of the election, the returning officer, i.e. Mr. Olufemi Olumise Ayeni, the second Respondent herein, returned the 1st Respondent as duly elected by a majority of 40,301 (Forty Thousand Three Hundred and One) votes as against 34,380 (Thirty-four Thousand, Three Hundred and Eighty) votes awarded to the Petitioner.

The Appellant was not satisfied with the results declared by the returning officer and presented a Petition before the Tribunal. In the petition filed, the Appellant prayed for the determination of the following declarations:
(i) That the 1st Respondent is not

qualified at the time of the election to contest the election.
(ii) That the 1st Respondent is not elected or declared returned, on a majority of the lawful votes cast at the election.
(iii) That the election was invalid by reason of corrupt practices, violence, intimidation, thuggery and undue influence.
(iv) That the election was not conducted substantially in accordance with the provisions of the Electoral Act. Guidelines and Regulations and the said non-compliance affected the results of the election.

WHEREOF the Petitioner prays that it may be determined:
(a) That the 1st Respondent was not qualified to contest the election and not among the qualified candidates, who contested the election. The Petitioner scored the highest majority of lawful votes cast for the qualified candidates at the election and ought therefore, to be declared elected and returned, by the 2nd, 3rd and 4th Respondents; or

(b) That the said 1st Respondent was not duly elected by majority of lawful votes cast at the election by reason of malpractices and that the Petitioner ought to have been duly elected or declared returned and therefore,

prays that he should be so declared or returned as the duly elected National Assembly (House of Representative) Oredo Federal Constituency member.

(c) In the alternative, your Petitioner prays for a Bye-Election in the affected wards, due to the facts pleaded above. That the elections held in wards 1, 3, 8, & 10, ought to be nullified and fresh elections conducted in the affected wards to determine the overall results and winner of the Oredo Federal Constituency.”

The 1st Respondent filed a memorandum of conditional appearance and a reply in which he raised a preliminary objection as to the competency of the petition on the ground that the petition failed to comply with paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2002, as amended, in that the petition did not state the votes scored by the candidates in the election. In addition, the 1st Respondent attacked the scores stated on the grounds that the word “award” was used, which renders the scores stated nugatory and non-existent.

The Appellant in answer to the above complaints of the 1st Respondent argued that the scores of the Petitioner and the 1st Respondent (who are

the parties) were stated. That they are the interested parties in the petition, and in spite of the use of the phrase “awarded”, the Appellant has complied with the relevant provision of the Electoral Act, 2002. The Appellant further argued that apart from the issue of lawful votes, the petition also raised the issue of the qualification of the 1st Respondent.

The Tribunal listened to the counsel of both parties and in a considered ruling delivered on 3/6/2003, it held that the petition was not properly before the Tribunal in that the petition failed to provide and state the names and scores of the other candidates namely, Rev. Charles Ogiemwanye Bello of the (N.C.P.) and Mr. Pollen Ogbeifon, who contested on the platform of (U.N.P.P.).

In the words of the Tribunal:
“In the light of the foregoing, we feel bound to agree with Mr. Mozia, learned Counsel for the Applicant that this petition is incompetent, because it does not comply with the mandatory provision of paragraph 4(1)(c) of the 1st Schedule of the Electoral Act, 2002 and therefore should be struck out…
In the circumstances, this application succeeds. Petition No. NAET/EDS/3/03

between Hon. Dr. Willie Ogbeide (m) P.D.P. candidate and Mr. E. Arigbe Osula & Ors, ANPP candidate is hereby struck out.”
?
The Tribunal was of the view that the content of the petition is not complete, since the petition did not join all the necessary parties and state their scores in the petition, therefore, the petition must be declared incompetent.

Aggrieved by the decision of the Tribunal, the Petitioner appealed to this Court and filed two grounds of appeal. Shorn of their particulars the grounds of appeal reads as follows:
GROUND ONE
“The learned Chairman and members of the Electoral Petition Tribunal erred in law, when they held that the non-stating of the names and scores of other candidates in the election petition rendered the petition incompetent.”
GROUND TWO
“The learned Chairman and members of the Tribunal erred in law, when they held that failure to state the scores of all candidates in the petition made the petition incompetent which is contrary to the decision of the Court of Appeal in Owuru v. INEC (1999) 10 NWLR (Pt. 622) 210, as the issue of scores was not in controversy and was not the only issue or

ground in the election petition.”
(Particulars of the above grounds of appeal were duly supplied)

In compliance with this Court’s Practice Direction, briefs of argument were filed and exchanged by the parties. The Appellant distilled one issue for the determination of this appeal. The 1st Respondent agreed with the sole issue formulated by the Appellant and adopted same. The 2nd – 4th Respondents associated themselves with the stand taken by the 1st Respondent and jointly adopted same.
The lone issue formulated by the Appellant and adopted by all the Respondents is reproduced hereunder:
“Whether the non-stating the of names and scores of other candidates by Appellant’s petition renders the petition incompetent having regard to the provision of paragraph 4 (1)(c) of the First Schedule of Electoral Act, 2002

(Encompassing grounds 1 and 2)”.

At the hearing of the appeal on 19/6/2003, learned Counsel adopted their respective briefs. The Appellant and the 1st Respondent’s counsel further proffered oral arguments and submissions in amplification of certain issues in their various briefs.
?
On his own part, Mr. Izinyon, SAN,

learned Counsel for the Petitioner, reiterated his preliminary objection to the arguments in paragraphs 5.00 & 5.01 of the 1st Respondent’s brief, wherein the 1st Respondent contended:
(1) That the scores of the Appellant and 1st Respondent were not stated in the petition because of the use of the word “award”.
(2) That the scores of the other candidates were not stated in the petition.

Learned SAN submitted that the Tribunal did not make any finding on the 1st leg of the above submissions, and since there was no cross-appeal against the failure of the Tribunal to make any such pronouncement, or at best a Respondent’s notice to affirm the judgment on other grounds, the 1st Respondent cannot surreptitiously canvass this issue before this Court. He cited in support Order 3 rule 14(1)-(5)of the Court of Appeal Rules, 2002, and the case of Delta State Government v. Okon (2002) 2 NWLR (Pt. 752) 665 at 684.

Learned Counsel for the 1st Respondent, Mr. Ken Mozia on the other hand, argued that the issue addresses the failure to indicate the scores or the votes scored by the 1st Respondent in the petition and is therefore, not a matter for

either a cross-appeal or a Respondent’s notice so can be accommodated in this appeal. He cited Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) 517, to buttress his submission that the 1st Respondent is not seeking for a reversal, so there was no need to file a cross-appeal. He further argued that a Respondent’s notice is only necessary, where the Respondent contends that the judgment of the lower Court should either be varied or affirmed on other grounds, citing in support the decision of the Supreme Court in American Cyanamid Co. Ltd. v. Vitality Pharmaceutical Ltd. (1991) 2 NWLR (Pt. 171) 15. He submitted that the appeal is going to be considered on the same grounds as was the decision of the Tribunal. It is his contention therefore that it is still the same issue so there was no need to file a cross-appeal or a Respondent’s notice.

In the said paragraph 5.01 of the 1st Respondent’s brief objected to by the Petitioner, this Court was urged to make a pronouncement on whether, indicating scores allegedly awarded meets with the demands of paragraph 4(1)(c) of the First Schedule of Electoral Act, 2002. The bone of contention here is that, the said issue was raised

before the Tribunal, but the Tribunal did not make any pronouncements on it. No doubt, the proper way for the Respondents to question any aspect of a judgment that is substantially in his favour is to file a cross-appeal or file a Respondent’s notice with regard to that complaint. See Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1; Baker Marina (Nig.) Ltd. v. Danos and Curole Marina Contractors Inc. (2001) 7 NWLR (Pt. 712) 337; Delta State Government v. Okon (supra).

See also Ogunbadejo v. Owoyemi (supra), wherein the Supreme Court enumerated the situations, when a Respondent needs to file a cross-appeal in an appeal as follows:
(a) Where there are separate and distinct causes of action and one party seeks to contest the decision upon one cause of action and another party upon another cause of action;
(b) Where there are several parties and the Respondent seeks to vary the decision or order of the Court on a point in which the Appellant has no interest;
(c) Where the Respondent wished to contest the jurisdiction or vires of the Court;
(d) Where the Respondent wishes to reverse any findings made by the Court or Courts below;

(e) Where the Respondent wants a complete reversal of the decision of the lower Court.

In all the above cases, a Respondent ought to file a cross-appeal.
But in all other cases, he may file a Respondent’s notice. A Respondent’s notice applies only where the Respondent intends to retain the judgment, but at the same time wants it varied. See Ogunbadejo v. Owoyemi (supra); Delta State Government v. Okon (supra); and Baker Marina (Nig.) Ltd. v. Danos Curole Marina Contractors inc. (supra). The position therefore, is that a Respondent’s notice applies, where a particular point in the appeal of the Appellant is being stretched by the Respondent who contends for its maintenance but proposes for a variation of it, if it is the only way by which he could be enabled to retain it. A Respondent may also come by way of Respondent’s notice if on the fact and on the law, the decision of the Court being appealed from will in any event be affirmed.

Clearly, none of the above enumerated situations are applicable in this appeal. The 1st Respondent is not questioning any aspect of the Tribunal’s judgment, and does not wish to reverse any findings made by the

Tribunal. The situation here is that in the Tribunal, the 1st Respondent raised the issue of the scores of the Appellant and 1st Respondent not being stated in the petition, because of the use of the word “award”, but the Tribunal did not make any pronouncements thereon. The objection of the learned SAN is predicated on the ground that the 1st Respondent cannot surreptitiously canvass the said issue in this appeal since the Tribunal did not make any pronouncement on it.

Obviously, the 1st Respondent did not need to file a cross-appeal or a Respondent’s notice. However, I agree with the learned SAN that the issue in question can not be considered by this Court. An Appellate Court is not competent to pronounce upon issues which the trial Court did not have the opportunity of pronouncing upon. It is improper for a party to raise issues not arising from the judgment appealed ,against. Such an issue is irrelevant and will not be considered by the Appellate Court. See Bello v. Jallo (1999) 4 NWLR (Pt. 598) 189 at 195; and UBN Plc. v. Ayo Dare & Sons Ltd. (2000) 11 NWLR (Pt. 679) 644 at 656. I do not agree with learned Counsel for the 1st Respondent that

the issue can be validly accommodated within the sole issue presented for consideration in this appeal. It is therefore, discountenanced.

On the main appeal, learned SAN submitted that the issue is whether failure to state the score of other parties, who participated in the election rendered the petition incompetent as was held by the Tribunal. It is his contention that this finding is erroneous in law, as the interpretation of statutes should be given a holistic approach and not piecemeal in nature. He further submitted that there was no complaint that the parties interested in the petition were not before the Tribunal, that the complaint was that other scores of the other candidates, who participated in the elections were not stated. He cited Braithwaite v. G.D.M. (1998) 7 NWLR (Pt. 557) 307, which dealt with the use of the words “The” and “Or” and interpreted them, and also urged the Court to distinguish the cases of Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622, and Ikeh v. Njoku (1999) 4 NWLR (Pt. 598) 263, cited by learned Counsel for the 1st Respondent from this petition. He however, referred the Court to Owuru v. INEC (1999) 10 NWLR (Pt. 622)

210, submitting that the parties should have been allowed to have been heard on the merits. He therefore, urged the Court to allow the appeal and remit the petition to be heard by another panel.

Learned Counsel for the 1st Respondent however, argued that there are a plethora of cases which all state that a petition that fails to indicate the scores of all the candidates is incompetent, and the Tribunal will not have jurisdiction to consider such an incompetent petition. He submitted that this is a well trodden path and urged the Court to tread the same path. He argued that the decision of the Court in Owuru v. INEC (supra), is that where an election is being questioned on grounds which do not put the scores in issue, failure to put the votes cast will not render the petition incompetent, however, that the issue in this petition takes it outside the ambit of Owurus case, because issues were joined on which of the contending parties scored the majority of lawful votes cast at the election. Citing Ike v. Njoku (supra), he urged the Court to dismiss the appeal and affirm the decision of the Tribunal. Mr. B. O. Ajumah, learned counsel for the 2nd – 4th

Respondents adopted the arguments of learned Counsel for the 1st Respondent and urged the Court to dismiss the appeal and uphold the decision of the Tribunal.

There is no dispute that the petition did not state the names of the other contestants and their scores besides those of the Appellant and the 1st Respondent. The bone of contention is in respect of the interpretation to be given to paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. Paragraph 4(1) and (6) of the said Schedule states 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 winner of the election; and
(d) state clearly the facts of the election petition and ground or grounds on which the petition is based and the relief sought by the Petitioner.

(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”.

Mr. Izinyon, learned Senior Counsel for the Appellant has argued that the Electoral Act should be given a holistic appraisal and not piecemeal interpretation. He submitted that the candidates referred to under paragraph 4 (1)(c) are the candidates interested in the election petition as provided for under paragraph 4 (1)(a) and that the use of the word “the” cannot be interpreted to mean “all” as defined in Braithwaite v. G.D.M. (1998) 7 NWLR (Pt. 557) 307. His further contention is that a close examination of Form TF 001 contained in the First Schedule reveals that the Respondents referred to as “EF” and “GH” are candidates sued as Respondents. If the phrase “the candidates” is interpreted to mean all candidates, this will amount to doing violence to the statute. He advocated strongly that technicalities should be avoided in the hearing of election petitions as a matter of policy so that election petitions can be determined on their merit.

Mr. Mozia, learned Counsel for the 1st Respondent has posited that paragraph 4 (1)(c) of the First Schedule to the Electoral Act demands that the names and scores of the candidates at the election must

be stated and that any election, which fails to state the scores of all the candidates in the election is incompetent and the Tribunal will not have jurisdiction to consider such incompetent petition. He argued that where an election is being questioned on grounds, which do not put the votes cast in issue, the failure to state the votes scored by the candidates will not render the petition incompetent.

The stand taken by Mr. Mozia finds support in a number of cases, which were struck out by Election Tribunals and were upheld by this Court for failure to state the scores of other candidates who contested the election but did not win. See: Chatjok v. Kato (1999) 3 NWLR (Pt. 594) 220; Ikeh v. Njoku (1999) 4 NWLR (Pt. 598) 263; Abimbola v. Aderoju (1999) 5 NWLR (Pt 601) 100; Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622; Mudiaga-Erhueh v. INEC (1999) 12 NWLR (Pt. 630) 288 & Offomah v. Ajegbo (2000) 1 NWLR (Pt. 641) 498.

The case of Ikeh v. Njoku (supra) is an extreme case where the scores of one of the candidates was represented by a hyphen (-) and when objection was raised that the petition was

incompetent because the hyphen did not represent the scores of the particular candidate, the objection was upheld and the petition struck out. On appeal to this Court, the appeal was dismissed and the decision of the Tribunal was affirmed. Such interpretation is too stringent and too narrow. It was the view of this Court that any omission by the Petitioner to state the scores of all the contestants in an election would be tantamount to a fundamental defect which, if not cured by an amendment carried out within 14 days of the declaration of the result, would render the petition incompetent and liable to be struck out.

the elections cannot affect the competency of the petition since the necessary parties i.e. the statutory Respondents were all joined and the petition could properly be determined without them. The Tribunal was therefore in error to have struck out the petition. In the result, I hold that failure of the Appellant to state the names and the number of votes of the candidates in the petition is not enough to render the petition incompetent. More so when the Petitioner, now the Appellant, is in addition questioning the return of the 1st Respondent on other various grounds, including disqualification.

Consistently with what I have stated earlier, the petition cannot possibly be incompetent. That being the case, the Tribunal with respect was wrong in striking the petition out. The Tribunal did strike out the petition in a rushed manner thereby denying the Appellant opportunity to ventilate its position. The Tribunal should not be allowed to cling to un-necessary technicalities to do injustice to these all important matters. The action of the Tribunal in prematurely striking out this particular petition is unfair. The Appellant should be allowed to freely

attempt to prove his case, at the end of the day the Tribunal should decide for itself whether or not the petition succeeds.

I hold that the appeal succeeds and is hereby allowed. The matter is hereby remitted to the Tribunal to be heard on its own merit. Costs of N2,000.00 is awarded to the Appellant against the 1st Respondent.
?
KUMAI BAYANG AKA’AHS, J.C.A. :
? The issue in this appeal is:
Who are the necessary parties that must be included in an election petition, to make it competent? Section 133 of the Electoral Act, 2002 , provides an answer. It states:
“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 that 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”

An apparent conflict seems to have been created in paragraph 4(1) of the First Schedule to the Electoral Act in regard to the contents of election petition. The said paragraph stipulates that:
“(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 can be argued as did Mr. Ken Mozia, learned Counsel for the 1st Respondent that paragraph 4(1)(c) of the First Schedule to the Electoral Act demands that an election petition must contain the names and scores of the candidates, who contested the election and that any petition which fails to state the scores of the candidates at the election, such a petition is incompetent. A literal interpretation of

paragraph 4(1)(c) would support the argument that the scores of all candidates must be stated; otherwise the election is incompetent.
However, the recent decision of the Supreme Court in General Muhammadu Buhari v. Alhaji Mohammed Dikko Yusuf (2003) 14 NWLR (Pt. 841) 446, has debunked that argument. In that appeal the Supreme Court held that only the parties stipulated in Section 133(2) of the Electoral Act, should be made the Respondents in an election petition and the petition will not be defeated if some of the candidates, who contested the election are not made parties. In this appeal, the Appellants who were 3rd and 4th Respondents respectively, in the petition filed by Alhaji Mohammed Dikko Yusuf against the winner of the Presidential Election held on 19/4/2003, prayed the Presidential Election Tribunal to strike out their names from the petition, but the application was refused. On appeal to the Supreme Court against the refusal to strike out their names, the Supreme Court held that they were not necessary parties to the competence of the petition and in any event since the 1st Appellant was not declared the winner of the election, neither he, as

an unsuccessful candidate nor his party can be made Respondents to an election petition against their will. See: Lovering v. Dawson (No.1) (1875) LR 10 CP 711; Yates v. Leach (1874) LR 9 CP 605. Consequently, the striking out of the petition by the Tribunal for failure to state the scores of the other candidates, who contested but did not win the election was wrong and the appeal must be allowed.

I endorse the order remitting the petition back to the Tribunal to be heard on its merits and costs of N2,000.00 in favour of the Appellant against the 1st Respondent.

AMINA ADAMU AUGIE, J.C.A. : I read before now, the judgment of my learned brother, Muntaka-Coomassie, JCA. I agree with his conclusion that, the appeal succeeds and that the petition should be remitted back to the Tribunal to be heard on its merit.

The Petitioner contested the National Assembly Election held on 12th April, 2003, into the House of Representatives for Oredo Federal Constituency, Edo State, under the platform of the Peoples Democratic Party (PDP). The 1st Respondent contested under the platform of the All Nigerian Peoples Party (ANPP). Other candidates

contested the election. However, at the close of the poll, the 2nd Respondent returned the 1st Respondent as the duly elected candidate for the Oredo Federal Constituency, having scored a total vote cast of 40,301, as against the Petitioner’s scores of 34,380. Dissatisfied with this result, and also that the 1st Respondent is not qualified to contest the election in the first place, the Petitioner filed an election petition upon the ground and facts set out in the lead judgment.

The 1st Respondent filed a memorandum of conditional appearance, filed a reply wherein he indicated his intention to raise a preliminary objection as to the competency of the petition as it failed to comply with paragraph 4(1)(c) of the 1st Schedule of the Electoral Act, 2002 as amended. Consequently, the 1st Respondent followed it up with a motion on notice raising the issue of the competency of the petition as indicated in the reply. After hearing arguments of counsel, the Tribunal in a considered ruling held as follows:
“In the light of the of the foregoing, we feel bound to agree with Mr. Mozia, learned Counsel for the Applicant that this petition is incompetent,

because it does not comply with the mandatory provision of paragraph 4(1) (c) of the First Schedule of the Electoral Act, 2002 and therefore, should be struck out. In the circumstances, this application succeeds..”

Being dissatisfied with the decision of the Tribunal, the Petitioner appealed to this Court. The crux of the issue in this appeal is whether the failure to state the scores of other parties, who participated in the election rendered the petition incompetent as was held by the Tribunal. The case for the Appellant as argued by his counsel, Alex A. Izinyon, SAN, is that the Tribunal was in grave error to insist that the scores of all candidates who contested the election should be stated. He submitted that the Tribunal strained itself to give a restrictive and narrow interpretation to the provision of paragraph 4(1)(c) of the First Schedule of the Electoral Act 2002, as the provision of the said paragraph did not use the word “all” but rather used the word “the”, and that the “the” referred to the parties interested in the election petition.

Mr. Ken Mozia, learned Counsel for the 1st Respondent however, argued that the requirements of the

said paragraph 4(1)(c) have been consistently interpreted by the Appellate Courts as placing a burden on a Petitioner to state the names of the candidates at the questioned elections and the votes scored by them, that nowhere has it been interpreted to be restricted to only the parties to an election, who were candidates in the election, and that the Tribunal is also entitled to have, from the pleadings, a global or composite view of the entire election including the votes cast therein.

Obviously, the disagreement of counsel turns on the interpretation to be given to paragraph 4(1)(c), as it relates to the candidates necessary to be stated in an election petition. In the recent judgment of the Supreme Court in General Muhammadu Buhari v. Alhaji Mohammed Dikko Yusuf(2003) 14 NWLR (Pt.841) 446, the Supreme Court per Uwaifo, JSC, stated as follows:
“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 an issue”.

The petition in this case was not heard on its merits, as no evidence was adduced either way. It was struck out as being incompetent, after the hearing of arguments from counsel on the point of law raised in paragraph 3(a) of the reply to the petition of the 1st Respondent/Applicant, also the 1st Respondent herein. It is in line with the above comment of Uwaifo, JSC in General Muhammadu Buhari v. Alhaji Mohammed Dikko (supra), and the other reasons enumerated in the lead judgment, delivered by my learned brother, Muntaka-Coomassie, JCA, that I agree with him that the petition should be heard on its merits. Consequently, I also, hold that the appeal succeeds and is allowed. I abide by the order as to costs.

Appeal allowed.

APPEARANCES
Alex A. Izinyon, SAN For Appellants

Ken Mozia, Esq. For the 1st Respondent
?
B. O. Ajumah – For the 2nd, 3rd &
4th Respondent

Appearances

Alex A. Izinyon, SANFor Appellant

AND

Ken Mozia, Esq.
B. O. AjumahFor Respondent