ISRAEL OLU OLANIYONU V. PROFESSOR AWA Chairman, National Electoral Commission. & ORS.
(1989) LCN/0073(CA)
In The Court of Appeal of Nigeria
Thursday, the 19th day of January, 1989
Case Number: CA/I/151/88
RATIO
ELECTION PETITIONS: WHEN SHOULD AN ELECTION PETITION BE PRESENTED
the law is clear that an election petition must be presented within one month after the date on which the election is held. PER AKANBI, J.C.A.
ELECTION PETITIONS: CONDITION PRECEDENT ON PRESENTATION OF PETITION
Indeed it is a further requirement of the law that on the presentation of the petition, the petitioner shall also pay the fees for service and publication of the petition and for its certification. PER AKANBI, J.C.A.
JUSTICES:
MUHAMMED MUSTAPHA ADEBAYO AKANBI Justice of The Court of Appeal of Nigeria
JOHN HEZEKIAH OMOLOLU-THOMAS Justice of The Court of Appeal of Nigeria
EMMANUEL OBIOMA OGWUEGBU Justice of The Court of Appeal of Nigeria
Between
ISRAEL OLU OLANIYONU Appellant(s)
AND
- PROFESSOR AWA Chairman, National Electoral Commission.
2. REV. A.V.O. OWOLABI Ogun State Electoral Commissioner
3. MR. WALE OKEWALE Electoral Officer Obafemi/Owode Local Government Respondent(s)
AKANBI, J.C.A. (Delivering the Leading Judgment): In this case, an election petition was on 6th January, 1988 lodged in the Registry of the High Court Abeokuta, Ogun State of Nigeria. The petitioner by his petition sought a declaration that he and not the 5th respondent was the duly elected candidate for the Kajola constituency of the Obafemi-Owode Local Government, and that the ‘declaration of result of Poll’ given to him was valid.
A preliminary objection to the hearing of the petition was taken by counsel to the respondents. The grounds of the objection were that the petition was statute barred in that it was not strictly ‘presented’ within one month after the date on which the election was held. It was contended that the necessary security for costs was not paid until the 27th January, 1988 well outside the one month allowed for the “presentation of a petition.”
Counsel to the petitioner however contended that the petition was presented on 6th January 1988 when he deposited it with the Registrar of the High Court whose duty it was to determine the amount to be paid; and that in any case, the court has power to enlarge time if for any reason it held that there was no due presentation of the petition. It did not appear however that any application for enlargement of time was filed or considered.
The trial Judge in a considered ruling, held that on the facts before him, the petition was presented not on 6th January 1988 as the petitioner’s counsel had argued but on 27th January, 1988 as the respondents’ counsel had canvassed. He also held that the petitioner did not, right to the time of hearing the objection, give any security for costs and as such the petition could not proceed to hearing. Accordingly, the objection was upheld and the petition was consequently struck out.
The petitioner was dissatisfied and so carried his case further to this court. His complaint is predicated on two grounds. The grounds of appeal read thus:-
“The learned trial Judge erred in law when he held that the petition of the petitioner was not presented within the time allowed by law when it is clear on the petition that it was presented to the Registry and was so stamped on 6/1/88 – a date which was within the period allowed by law and so came to a wrong decision in the Ruling he gave.
PARTICULARS
(1) Paragraph 2 of Schedule 3 of the Local Government Elections Decree, 1987 states that Election Petition shall be presented within one month after the date on which the election was held.
(2) The Local Government election was held in Kajola Constituency/Ward of Obafemi/Owode Local Government of Ogun State of Nigeria on 12/12/87.
(3) The petitioner presented the petition to the High Court Registry on 6/1/88 where he was asked to pay #2.00 each for the five copies he was asked to present.
(4) The petitioner paid #10.00 on court Receipt No. A582552 of 6/1188 and was so endorsed on the petition.
(5) Like in Civil cases, the Registrar calculates and tells any litigant the amount he has to pay.
(6) That on 27/1/89, the Registrar sent for the petitioner and asked him to pay #53.00 for further processing and #200.00 deposit for Security for costs.
(7) The petitioner paid #53.00 on court Receipt No. OGST A582824 of 27/1/88 and #200.00 deposit for Security for costs on court Receipt No. OGST A582825 of 27/1/88.
(8) The payment made on 27/1/88 at the direction of the Registrar was payment made in the course of processing the petition.
(9) In the notice of presentation of the petition attached to the petition, the Registrar stated that it was presented to him on 6/1/88.
(10) The petitioner should not be punished for an error, if any, on the Part of the court Registry.
(11) The court should have adverted its mind to the provisions of paragraph 50(1) of Schedule 3 of the Decree and allowed the petition to be heard on its merit.
(12) In fact the petitioner complied with the provisions of schedule 3 paragraph 4 of the Decree.
(13) The Ruling has occasioned a miscarriage of Justice.
GROUND TWO:
The learned trial Judge erred in law in holding that even if he agreed that the petition was presented on 6/1/88 but because the deposit of #200.00 for Security for costs had not been paid up till the time of his Ruling on 22/2/88, he could not say that the petition was presented within time when in fact the petitioner paid the deposit of #200.00 to the court on the direction of the Registrar on 27/1/88 for which court Receipt No. OGST A582825 of the same date was issued and so came to a wrong decision in the Ruling he gave.
PARTICULARS:
(1) On 27/1/88, the petitioner paid a deposit of #200.00 as Security for costs.
(2) This is in compliance with paragraph 3(2) of Schedule 3 of the Decree.
(3) The payment was on the direction of the Registrar.
(4) The petitioner obtained court Receipt No. OGST A582825 of 27/1/88.
(5) If the court was in doubt, the court had the power to call for record in the Registry or to ask from the Registrar of the court.
(6) Even if the court felt that the deposit was made late, paragraphs 44 (i) and 50 (i) should have been applied by the court to enable the petition to be heard on merit.
(7) The Ruling has occasioned a miscarriage of Justice.”
Briefs of arguments were duly filed and exchanged. Learned counsel for the petitioner Mr. Madandola identified seven (7) issues for determination. They read as follows:-
“(1) Whether the learned trial Judge properly interpreted the Word “presented” as contained in Schedule 3 paragraph 2 of the Local Government Elections Decree, 1987 (Decree No.37).
(2) Whether the learned trial Judge was right to have applied the meaning attached to the presentation of petition in Divorce proceedings to the word “present” in schedule 3 paragraph 2 of Decree 37.
(3) Whether the Judge correctly considered the provisions of paragraphs 2 and 4(4) of Schedule 3 of the Decree before deciding that the petition was not presented in time in view of the fact that the petition was received by the Registrar on 6/1/88 and was so stated by the Registrar in the Notice of hearing issued and attached to the petition by the Registrar.
(4) Whether the Judge considered that even if proper fees were not paid within time as required by paragraph 7 of Schedule 3 of Decree 37, the provisions of paragraphs 44(1) and 50(1) would not have been applied to cure any default and to allow the petition to be heard on merit.
(5) Whether the preliminary objection to the filing of the petition was properly taken in view of the provision of Paragraph 50(3) of Schedule 3 of Decree 37 that the Several objections shall be stated in the notice of motion.
(6) Whether non-payment of Security of #200.00 after 12/1/88 would have prevented the petition from being heard on merit in view of the provisions of paragraphs 33(1), 50(1) and 50(5) of Schedule 3 of Decree 37.
(7) Whether if the Judge accepted that the petition was filed in time, non-payment of Security for cost would have made him strike out the petition when in fact the court record which was within the power of the Judge to ascertain showed that the deposit of #200.00 was paid before the objection was raised on 16/2/88.”
For the respondents Chief Fadayiro state two issues for determination.
They also read thus:-
“(1) When is a petition “Presented”, is it when he hands it over to the Registrar or when he has paid filing fees and other fees stipulated by Law, and has complied with all steps laid down by Decree 37 of 1987?
(2) Could the learned trial Judge enlarge time for complying with the laid down rules “Suo motu” without any application brought properly before the court.”
I think a consideration of issue 1 of the respondents’ brief can adequately take care of issues 1, 2, 3, 6 and 7 raised in the petitioner’s brief as they all appear to me to relate to the question as to whether the petition was duly presented on 6th January, 1988 or not. Equally so, issues 4 & 5 of the petitioner’s brief and issue 2 of the respondents’ raise similar or same issue; and that is, having regard to the facts before the court, ought not the trial Judge use his discretionary and/or statutory powers to enlarge time for the doing of any of the things complained of and allow the case to proceed to hearing on the merits.
In the appellant’s brief of argument Mr. Madandola argued that the learned trial Judge misconstrued the word “present” or “presentation” appearing in the election Decree No. 37 of 1987. He submitted that a petition is presented when it is received by the Registrar of the court; and that since in this case the Registrar stated in the “Notice of Presentation of the petition” that the petition was presented on 6th January 1988, the date the petition was received by him, the learned trial Judge was wrong to have held that the petition was not duly presented on that date. What is more, he said, the trial Judge was wrong to have adopted the definition in the Matrimonial Causes Act as that definition was designed to achieve a specific purpose and that purpose is to enable the court seized of the matrimonial matter know how long the spouses have lived apart and thus be able to decide whether or not at that point in time it had jurisdiction to try the case on hand. That being so, the definition must be limited to the Matrimonial Causes Act and should not be extended to the Election Decree. Learned counsel then referred us to Earl Jowitt’s Dictionary of English Law at page 1394 where the word “present” was defined to mean “to tender or to offer” and asked us to adopt that definition.
On the issue of non-payment of security for costs, learned counsel re-iterated that once a petition is delivered to the Registrar, whose duty it is to assess what is to be paid by way of security that petition is duly presented as by law required.
He pointed out further that the petitioner on 27th January 1988 paid #253.00 to the Registrar of the court to whom the petition was earlier submitted; and that of this amount, #200 represented security for costs payable by the petitioner and this was evidenced by court receipt No. A582825. Accordingly, it was submitted that if the learned trial Judge had cared to examined his court file, he would have found that security for costs had been paid and his conclusions would have been otherwise. Finally, the point was made that late payment or no late payment, the trial court ought, in the exercise of its powers under Section 44(1) and 50(1) of Schedule 3 of the Decree, to have extended the time for making the necessary payment so that the petition can be heard on its merit.
For the respondents Chief Fadayiro, S.A.N., in his reply first drew attention to Section 2 and 3 of schedule 3 of the Election Decree No. 37 of 1987 and submitted that unless there was any directive to the contrary given by the court, a petition is not presented unless at the time it was received by the Registrar the “filing fees, fees for service and publication” are paid. Consequently, he argued, the receipt of the petition on 6/1/88, when no fees were paid, was “ultra vires.” He said that it was apparent on the face of the record that payment was made on 27/1/88 while the election was held on 12/12/87.
Furthermore, he said, since no security for costs was paid at the time the petition was lodged in the registry on 6/1/88, no further proceedings could be taken in respect of the petition vide section 3(4) of Schedule 3 of the Decree.
As to the issue of enlargement of time for the appellant to effect these payments the learned Senior Advocate said that there was no application or materials properly placed before the court for it to be able to exercise its discretion one way or the other. He pointed out that section 44 of the Decree itself provides for the making of such an application and the appellant not having availed himself of the opportunity cannot now be heard to complain. Accordingly, we are asked to dismiss the appeal.
I think it is correct to say that the appellant is not saying that when the petition was filed he paid the required fees for service and publication. Nor is it his case that he paid security for costs when he delivered the petition to the Registrar of the court on 6th January. Indeed, the brief filed on appellant’s behalf puts it beyond question that payment was made on 27th January, 1988. That was clearly outside the period for the presentation of the petition in respect of an election which was held on 12th December 1987.
But appellant’s counsel has said that this was because he was acting on the instruction of the Registrar. That sounds like the story of the tale wagging the dog. But be that as it may, the law is clear that an election petition must be presented within one month after the date on which the election is held. See Section 2 of Sch. 3 of Election Decree No. 37 of 1987. However, a condition precedent to be fulfilled is that when presenting the petition, the petitioner must pay such security for costs as may be ordered by the court. This Security shall in any case not exceed #200.00. Indeed it is a further requirement of the law that on the presentation of the petition, the petitioner shall also pay the fees for service and publication of the petition and for its certification. See Sections (3)(1)(2)(4) and 4(4) of Schedule 3 of the Decree.
In the instant case the petitioner did not pay security for costs at the time his petition was presented; nor did he pay the required fees for service, publication and certification of the petition at the time of its presentation. Payments were only made some 15 days outside the one month allowed for the presentation of the petition. In such circumstance, can it be said that the petition was duly presented as required by law. I think not.
In my view the fact that the Registrar of the court issued a receipt or stamped the petition is of no consequence. He ought not have received the petition in the first place owing to the failure to fulfill these conditions precedent. Equally so, the contention that the Registrar was responsible for the delayed payment, is also to my mind, of no moment. There is nothing on record that counsel for the petitioner at any time properly moved or sought the court’s direction as regards payment of security for costs or other fees or that any such application by him was refused by the court.
The situation here appears to me to be akin to what happened in the case of Okon Joshua Eminue v. Nkereuwen (1966) 1 ALL N.L.R. 63 whereas in this case, the petitioner “omitted to deposit money for the expense of publishing the petition as required by Section 99 subsection 4 and paid his filing fees three weeks too late, the Supreme Court held that no petition had been presented and filed and that the Registrar was in error to have issued the Certificate of receipt of the petition.
I am not unaware that there the Supreme Court was considering Section 90 and 99 of the Electoral Act 1962. But having made a comparison of that Act and the Election Decree, I am inclined to the view that the principle annunciated in that case with regard to non-payment of Security for costs and fees for service etc., apply with equal force and validity to the case on hand. That being so, I hold that this petition was not duly presented on 6th January 1988 and as there was no order sought or obtained for an enlargement of time to make the payment which was made on 27th January 1987, the petition lodged with the Registrar on 6th January 1988 remains a defective petition. But the petitioner’s counsel has argued that the defect could have been cured if the trial court had in exercise of its powers under Section 50(1) of Schedule 3 of the Decree waived non-compliance. True enough by the aforesaid provision of the Decree, non-compliance with any of the provisions of the 3rd schedule or a rule of practice may not avoid the proceedings in an election petition unless the court otherwise directs; and that I must say is an improvement on the Electoral Act 1962 which precludes the court from extending the time for the filing of a petition.
But the problem in this case is that, as Chief Fadayiro has said there was not before the trial court an application to extend the time for the doing of any of those things complained of by the respondents, and no materials before the court on the basis of which any discretion could have been exercised, in the petitioner’s favour. The issue of payment of fees or security for costs is fundamental to the hearing of the petition. They are not mere matters of form. Without such payments, the petition has no legs to stand on, and it must necessarily collapse.
And 50 has it in this case. In the result, the appeal fails and it is accordingly dismissed by me. The order of the learned trial Judge striking out the petition is hereby affirmed. The respondent is entitled to costs which i assess at #200.00.
OMOLOLU-THOMAS, J.C.A.: I have had the benefit of reading the judgment of my learned brother Akanbi, J.C.A., and I too hold that the petition was not duly presented as prescribed under the Local Government Elections Decree No.37 of 1987. The “Notice of the Presentation of the Petition” given by the Registrar could not possibly cure the defect as to the due presentation of the petition within the period prescribed. Â
Since the deposit and security for costs and other fees were not paid within one month after the date on which the election was held, any certification by the Registrar as to the due presentation of the petition on the 6th of January is ultra vires the provisions of the Decree.
This court in the case of Nwobodo v. Onoh [1984] 1 SCNLR 1 at 20 Per Belgore, J.C.A. (as he then was, now J.S.C.) in interpreting section 127(1) of the Electoral Act of 1982 in his lead judgment said-
“It is either the security is given first or it is given contemporaneously with the petition as the majority Judges of the election court even held in the judgment. The learned Chief Judge, Araka, in Obale v. Nnawo (1972) 2 E.C.S.L.R. 484 was not in doubt about this. Neither the Supreme Court of Nigeria in earlier cases as Eminue v. Nkereuwen (1966) 1 A.N.L.R. 63, Ahmed v Alhaji Haruna Kassim (1958) 3 F.S.C. 51, and Ngoh v. Ndoke (1960) 5 F.S.C. 90. There are cases that never went beyond High Courts but follow the same principle (see Ifeanacho v. Ngbaraonye and 2 Ors. (1965) 9 E.N.L.R. 106; O.S. Benson v. Allison (1955-56) W.R.N.L.R. 58; and Ogbolumani v. Okobi & Anor. (1959) W.N.L.R.N. 11). No security was given and there was no petition before the court.” (Italics mine).
and the President of this court in that case also said –
“This matter has well been covered by some of my brothers in their respective judgments. I need only to say that the issue of substituted service as ordered by the learned Chief Judge is not so fundamental as to be beyond an irregularity which can be cured under section 147(5) of the Act. The issue of order for security is in my opinion fundamental. I am therefore in agreement with the judgment of my brother Belgore, J.C.A., on this issue. It is sufficient to vitiate the proceedings of the election court which was constituted after the order for security was made not only was the order made by the learned Judge alone but there is the more fundamental issue that the security was not paid when the election was filed. This may be rather strict but the wording of Section 127(1) is unambiguous as to what it directs. We must accept the special nature of election petition and its special requirements.” (Italics for emphasis).
Although that Act cannot be said to be in pari materia with the Local Government Elections Decree No. 37 of 1987, the wording of the provisions which require security for costs and fees (section 90 of the 1962 Act and section 127(1) of the 1982 Act) are similar, and in my humble opinion the same interpretation that was given to those provisions may properly be given to paragraphs 3 and 4 of Schedule 3 of Decree No. 37 of 1987; and as was observed by the Supreme Court at page 22 in Eminue v Nkereuwen (1966) 1 A.N.L.R. 63 at 68
“Failure to comply with the provision of the decree may not be fatal in other respects but in respect of time within which to file a petition a compliance is sine qua non, non-compliance is fatal. See also Ngoh v. Ndoke (1960) 5 F.S.C. 90.” (Italics mine).
I adopt and apply the above observations and interpretation in this case, and since no application has been made in the lower court for waiver of such non-compliance under section 50(1) of Schedule 3 of Decree or for extension of time to cover the period in excess I too must hold that such noncompliance is fundamental to the hearing of the petition. The non-compliance is fatal, and the petition is therefore incompetent.
For these reasons and other reasons which had been given in greater detail in the lead-judgment with which I am in respectful agreement, I too humbly dismiss this appeal and award costs in the sum of #200.00 in favour of the respondent.
OGWUEGBU, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother Akanbi, J.C.A., and I am in complete agreement with his reasoning and conclusion.
I will however wish to add my own comments on a vital issue raised in the appeal:-
When should an election petition be presented and how is it presented under Decree No. 37 of 1981?
I shall deal with the first by referring to paragraph two of Schedule 3 of the Local Government Elections Decree No. 37 of 1987 which stipulates:-
An election petition shall be presented within one month after the date on which the election is held.”
The above provision is clear and unambiguous and therefore, a petition presented later than one month after the date of the election is void and invalid.
To present a petition certain conditions precedent must be complied with. These are to be found in paragraphs 3 and 4 of Schedule 3 of the said Decree and particularly paragraphs 3(1)(2)(4) and 4(4) of Schedule 3.
Paragraph 3 (1) provides:-
“At the time of presenting an election petition the petitioner shall give security for all costs which may become payable by him to any witnesses………………………………
“3(2) The security shall be such amount (not exceeding two hundred naira) as the court may order and shall be given by depositing the amount in court. n (Italics mine for emphasis only).
“3(4) If no security is given as required by this Section, there shall be no further proceedings on the petition.”
“4(4) The petitioner or solicitor shall, at the time of presenting the petition pay the fees for the service and publication thereof and for certifying the copies; and in default of such payment the petition shall not be received unless the court otherwise directs.”
From the foregoing provisions of paragraphs 3 and 4, an election petition under the Decree is duly presented subject of course to paragraph 2 of the Third Schedule, if the following conditions are fulfilled:-
(a) The petitioner shall file the petition and file a ropy for each respondent and seven other copies.
(b) The petitioner shall pay the following fees at the time of filing the petition for:-
filing petition, service and publication thereof and certifying the copies and
(c) Giving security for costs which shall be such amount (not exceeding two hundred naira) as the court may order and shall be given by depositing the amount in court.
Paragraph 4(4) of the Third Schedule to the Decree makes it mandatory that in default of such payment in (a) and (b) above: “The petition shall not be received unless the court otherwise orders,”
From the foregoing, it is my humble view that even where the petition is filed without payment of the necessary fees and the making of the deposit such petition cannot be deemed to have been presented. The fees must be paid before the petition is received and wrongful receipt of the petition by the Registrar will not validate it. Since the petitioner did not pay the fees and make the deposit at the time of presenting the petition, it was not presented as provided by the Decree.
A valid election petition in my view is one in which the petitioner has complied with the provisions of paragraphs 3(1)(2)(4) and 4(1)(2)(4) of Schedule 3 not later than one month after the date of the election. This also presupposes that the fixing of the amount of security and its deposit shall be done within the same one month because there will be no further proceedings on the petition if no security is given as required by paragraph 3(4) of Schedule three. (See Eminue v. Nkereuwem & Ors. (1966) All N.L.R. 63 and Ogbalumani v. Okabi & Anor. (1959) W.N.L.R. 11).
The petitioner did not call in his aid the provisions of paragraphs 44(1) and 50(1) of Schedule 3 of the Decree.
The appeal is dismissed by me with costs as assessed in the lead judgment.
Appeal dismissed.
Appearances
Chief Oye Madandola For Appellant
AND
Chief Adetunji l’adayiro, S.A.N. For Respondent
