MR DAPO AKINWUNMI AMBODE v. MR KOLAWOLE OLUJIMI AGBAJE & ORS
(2015)LCN/7991(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of August, 2015
CA/L/EP/GOV/751/2015
RATIO
APPEAL; PROCEDURES A PETITIONER CAN CHOOSE IN THE APPLICATION OF SECTION 138(1)(B) OF THE ELECTORAL ACT
I do take note of the finding made at the trial Tribunal in the extract above to the effect that Paragraph 13(b) of the petition “is also founded on Section 138(1)(b) of the Electoral Act”. In the application of that provision of the Act, the petitioner may choose either of the two (2) procedures below:-
(1) That the petitioner may adopt or copy word for word the language of the provision of Section 138(1)(b) as his Ground for the petition, OR
(2) The Grounds for the petition may be coined in the petitioner’s own language but such must be within the parameters set by the provision of Section 138(1)(b). In these cases, the petition or Grounds thereto, would have been founded on the relevant provisions of the Act.
The apex Court in Ojukwu vs. Yar’adua (2009) 12 NWLR (Pt. 1154) 50 speaking about S. 145(1) of Electoral Act 2006, a provision similar to S. 138(1) put the matter succinctly thus at page 121 of the report
“A petitioner is required to question an election on any of the grounds in Section 145(1) of the Act. He is expected to copy the Section 145(1) grounds word for word. I think a petitioner can also use his own language to convey the exact meaning and purport of the sub-section. In the alternative situation, a petitioner cannot go outside the ambit of Section 145(1) of the Act. In other words, he cannot add to or subtract from the provision of Section 145(1). In other to be on the safer side, the ideal to do is to copy the appropriate ground or grounds as in the sub section. per. SAIDU TANKO HUSSAINI, J.C.A.
PRACTICE AND PROCEDURE; WHETHER THE PROCEDURE PROVIDED BY AN ACT OR LAW FOR THE MANNER FOR CARRYING OUT SPECIFIC ACT SHOULD BE FOLLOWED IN ACTUALIZING THE ACT
When an Act or law or Rules of Court provide for the manner for carrying out a specified act, the procedure should be followed in actualizing the act. See: Kalu v. Uzor (2004) 12 NWLR (Pt. 886) 1, 20; Ojukwu v. Yar’adua (supra). per. SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
MR. DAPO AKINWUNMI AMBODE Appellant(s)
AND
1. MR. KOLAWOLE OLUJIMI AGBAJE
2. PEOPLES DEMOCRATIC PARTY, (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. ALL PROGRESSIVE CONGRESS (APC)
5. THE RESIDENT ELECTORAL COMM. FOR LAGOS STATE, INEC Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Independent National Electoral Commission, (INEC), the 3rd Respondent herein is a Body charged with the responsibility, among other things with the conduct, organization and supervision of elections, one of such is the conduct, organization and supervision of the gubernatorial elections in all the States of the Federation, including Lagos State.
On the 11th day of April, 2015, there was governorship election in Lagos State wherein the Appellant, Mr. Dapo Akinwunmi Ambode and the 1st Respondent Mr. Kolawole Olujimi Agbaje were candidates.
The Appellant contested the election on the platform of the All Progressive Congress (APC), the 4th Respondent herein while the 1st Respondent contested the same election on the platform of the Peoples Democratic Party, (PDP), the 2nd Respondent. At the close of proceedings for the election, the 3rd and 5th Respondents declared the Appellant as duly elected and accordingly returned governor of Lagos State having polled a majority of lawful votes cast at the election and having satisfied the constitutional requirements.
?Not happy with the outcome of the election
and the return of the Appellant as the elected governor of Lagos State, the 1st and 2nd Respondents filed a petition dated the 30th April, 2015 before the Tribunal constituted to hear this petition and by it the petitioners raised diverse facts and circumstances which informed the petition being filed. The petition was served on the Appellant who, upon the receipt of same filed his Reply and gave notice that at the hearing of the petition he would urge the Tribunal to strike out or dismiss the petition on account of incompetence. Appellant’s reply to the petition is contained at pages 401-406 of vol. 1 of the record of Appeal. Consequent upon the said Notice to raise objection, the appellant by a Motion on Notice dated 5th June, 2015 and filed on the 13th June, 2015 applied to the Tribunal seeking an order striking out and/or dismissal of the petition on account of:
“A. The grounds stated in paragraphs 13(a) and 13(b) on which the petition was/is based are unknown to and incompatible with the statutorily prescribed grounds in Section 138 of the Electoral Act.
?B. Paragraphs 14 (I), (II), (III), (IV), (V), (VI), 15, 16, 17, 19(1), (2), (3), (4) and (5) of the
petition relate to pre-election issues over which this Honourable Tribunal does not have jurisdiction.
C. Paragraphs 14 (I), (II), (III), (IV), (V), (VI), 15, 16 and 17 of the petition are not based on any of the grounds in respect of which the petition was presented.
D. Reliefs 19 (1), (2), (3) and (4) relate to pre-election and nomination issues in respect of the primary election of the 3rd respondent over which this Court does not have jurisdiction.
E. Further to D supra, only the State High Court and/or the Federal High Court has the jurisdiction to entertain Reliefs 19 (1), (2), (3) and (4).
F. In addition to paragraphs D and E supra, Reliefs 19(1), 19(2), 19(3) and 19(4) are not premised on and also do not relate to any of the grounds on which the petition is presented.
G. Further to (D), (E) and (F) supra, Reliefs 19(6), 19(7), and 19(8) are academic and incompetent.
H. Reliefs 19(6) and 19(7) do not relate to any of the pleadings in the petition.
I. Further to H, above, Reliefs 19(6) and 19(7) are at variance with the pleadings in the petition. Relief 19(8) is academic and incompetent without a relief for a re-run election.”
?I refer to pages 1063-1065 of vol.
II of the record of appeal, particularly at pages 1064-1065. The response of the 1st and 2nd Respondents to this Motion and Appellant’s reply thereto are contained in volume II at pages 1121 to 1133 and 1166-1176 of the record of appeal.
The Motion was taken at the pre-hearing session or sitting of the Tribunal on the 26/6/2015 and Ruling reserved.
In the course of proceedings but before the hearing of the Motion on Notice, the Tribunal had on the 25/6/2015 (record vol. II: pages 1239-1240) made a proposal that all Motions and objections be taken and heard along with the substantive petition so as to save time. Accordingly, the Tribunal invited counsel address on it on the same date.
In the short ruling delivered same date, the Tribunal directed that all such Motions and objections be taken at the pre-hearing session. So be it.
In another Ruling delivered on the 1st July, 2015, the Tribunal upheld the preliminary objection of the Appellant as the 2nd respondent before it consequent upon which the Tribunal also struck out the petition.
?It is noticeable and I so wish to observe that by dint of the Notice of Appeal dated and filed on the 15th day of July, 2015
(record: pages 1284-1290, vol. II), the appeal of the Appellant against the Governorship Tribunal ruling is not against the whole decision but aspects of the Ruling of the Tribunal delivered on the 1st July, 2015, specifically, aspects of the ruling of the Tribunal where it held that:-
i. Paragraphs 15, 16 and 17 of the petition are part of the ground of the petition.
ii. Paragraph 13(5) of the petition is a valid ground under the Electoral Act.
See: the Notice of Appeal at pages 1284-1287 of record, vol. II.
The second point I want to make flows from the first and that is, the Appellant is the person or party in whose favour the Ruling was delivered whose Motion or Preliminary objection was upheld and the petition against him (among others) was struck out at the Tribunal.
?The question arises whether in view of that ruling or decision, the Notice of Appeal giving rise to the proceedings before us can properly be so described as an “appeal” and the person in whose favour the ruling was made or given who nonetheless wish to challenge aspects of the ruling, can be described as the “Appellant”? This question, I think is germane given the frequency with which processes
in the likes of the instant Notice of Appeal are headed, it behoves on us, the Courts to rise up to the occasion and put records straight.
Talking about putting records straight brings to mind the decision in Oguma Associated Companies Ltd v. International Bank for West Africa Ltd (1988) 1 NWLR (Pt. 73) where the apex Court has held that:”any person who has a judgment in his favour but seeks to reverse the judgment or part of it or any important finding therein can file a cross appeal without first waiting to be served with a Notice of Appeal by the unsuccessful party.” See further decisions in: African Continental Seaways vs. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC 235;
2. Etowa Energy and others vs. Fidelis Adu (1981) 11-12 SC 25, 38-46.
3. Sunmoun v. Ashorate (1975) 1 NMLR 16, 23.
4. Adekeye v. Akin Olugbode (1987) 3 NWLR (Pt. 68) 214, 266.
5. Eze v. Obiefuna (1995) 6 NWLR (Pt. 484) 639.
?This scenario has played itself out in the instant appeal case. The appellant being the successful party by the Ruling he appealed against from the Lower Tribunal in his quest to seek to make some fundamental changes in terms of the reliefs
being sought by him in his Notice of Appeal, the process can only properly be described as a “cross appeal” and the person behind it, the “Cross Appellant”. The party or parties on the opposite side are the “Cross – Respondents”. These appellations properly describe the process and the parties therein. Be it noted that the same rules which govern the filing of appeals also apply to cross appeals.
It appears to me though that nobody is complaining. Parties herein are contented with the present arrangement, there being no serious challenges or objections raised from any quarters in this regard dictates that the sleeping dog should be allowed to take his rest as I proceed to address all live issues in this appeal.
In the Notice of Appeal dated and filed on the 15th July, 2015 is contained the following 2 (two) grounds of appeal which I seek your indulgence, my Lords to reproduce, word for word thus;
“GROUND ONE
The Lower Tribunal erred in Law when it held that paragraphs 15, 16 and 17 of the petition are grounds of the petition.
Particulars of Error.
i. The grounds of the petition are those expressly spelt out in paragraph 13(a) and (b) of the petition.
ii. The Lower
Tribunal misconstrued the express wordings/presentation of the petition as described in the said petition.
iii. Paragraphs 15, 16 and 17 of the petition are not based on any of the grounds in respect of which a petition may be presented under Section 138(1) of the Electoral Act, 2010 (as amended) (the Electoral Act).
iv. Further to paragraphs 1-111 (supra), the Lower Tribunal does not have the vires to countenance paragraphs 15, 16 and 17 of petition as grounds of the petition.
GROUND TWO
The Lower Tribunal erred in Law and came to an incorrect decision when it held that paragraph 13(b) of the petition was a valid ground to sustain the petition.
Particulars of Error.
i. Paragraph 13(b) of the petition does not fall within any of the grounds in Section 138(1) of the Electoral Act.
ii. Paragraph 13(b) of the petition is incompatible with Section 138(1) of the Electoral Act.
iii. The Lower Tribunal expanded the provisions of Sections 138(1) of the Electoral Act in countenancing paragraph 13(b) of the petition as a valid ground under the Electoral Act.”
?In the Appellant brief of argument dated the 3rd day of August 2015 and filed on the 4/8/2015, the following 2(two) issues
were distilled for determination of this Court namely:-
1. Whether the Lower Tribunal was right when it held that there were other grounds of the petition apart from the ones specifically contained as grounds in paragraph 13(a) and (b) of the petition. (Ground 1)
2. Whether the ground contained in the paragraph 13(b) of the petition is a valid ground cognizable under Section 138(1) of the Electoral Act, 2010 (as amended) (Ground 2)
The 1st and 2nd Respondents filed their separate Briefs of argument and adopted the 2(two) issues formulated by the Appellant in his brief of Argument, while the 3rd and 5th Respondents out rightly conceded the appeal by virtue of the Brief filed on their behalf on the 7th day of August, 2015.
?Counsel in his brief gave his reasons for this concession. The 3rd and 5th Respondents having also filed preliminary objections along with the Appellant against the petition at the Tribunal and in whose favour ruling was given, cannot now turn around to contest this appeal. That is his position and I want to commend him for that. A party should be consistent in stating his case. He should not be seen to take one position on one occasion and shift
from that position on another occasion all in respect of the same case. It is better to keep mute when the occasion presents itself as done in this case. That is what it takes to remain consistent. See:- Ajide v. Kelani (1985) NWLR (Pt. 12) 248, 269. Adeleke v. OSHA (2006) 16 NWLR (Pt. 1006) 608; Akpa v. Itodo (1997) 5 NWLR (Pt. 506) 589; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172; Ngige vs. Obi (2006) 14 NWLR (Pt. 999) 1; Oshiomhole v. Airhiarbere (2013) 1 SCNJ 1139, 1161.
The 4th Respondent, the All Progressive Congress (APC) did not file any brief of argument contrary to the stipulations in the Rules of this Court under Order 18 Rule 4(1)(2) read together with Section 55 of the Electoral Act, 2010 (as amended). By that stand or position of indifference the party i.e. 4th Respondent is bound by the outcome of the decision in this appeal having not joined issues with the Appellant in his brief and thus is deemed as not being interested in the appeal or that the party is deemed as having agreed to be bound by the outcome of the appeal. See: Schere v. Ezirke (2006) 12 NWLR (Pt. 994) 386; OR (2006) 5 SC (Pt. 1) 65; Sotolaho and 5 others vs. Chief Edakan and
12 others (1990) 10 NWLR (Pt. 621) 82, 95; Unity Bank Plc vs. Bauari (2008) 7 NWLR (Pt. 1086) 372.
?The point must however be made that the failure of the 4th Respondent to file their brief of argument has not in any way diminished the duty and responsibility on the Appellant who must make out a case for himself even at the hearing of his appeal. He must succeed on the strength of his case and not on the failure of the 4th Respondent to file a Brief of Argument. The duty on the appellant is an enormous one. He must satisfy this Court that he is entitled to judgment being entered in his favour. See: Schere vs. Ezirke (supra) and Section 131(1)(2) of the Evidence Act, 2011, Cap E. 14.
On the 13/8/2015 when this appeal came up for hearing, Learned Senior Counsel for the Appellant, Chief Wole Olanipekun, SAN leading other notable counsel adopted all his briefs of argument and the submission contained therein, namely:-
i. Appellant’s brief dated the 3rd day of August, 2015 and filed on 4th August, 2015.
ii. Appellant’s Reply brief dated 10/8/2015 in response to the 1st Respondent brief of Argument.
?iii. Appellant’s Reply Brief dated 12/8/15 and filed on 13/8/15 in
response to 2nd Respondent’s Brief.
In urging us to allow his appeal, learned Silk further cited and relied on the decision in Oshiomole v. Airhiardere (2013) 7 NWLR (Pt. 1353) at pages 396,392.
Messrs G.O. Giwa-Amu and A. Kitoye who appeared for the 1st and 2nd Respondents respectively, similarly adopted their separate Briefs of argument filed on the 10/8/2015 and on 12/8/2015 respectively to urge us to dismiss this appeal. I will proceed therefore to present the submission made by Counsel vis a vis the 2(two) issues formulated for determination in this appeal and thereafter I will address the salient points raised.
ISSUE No. 1
Whether the Lower Tribunal was right when it held that there were other grounds of the petition apart from the ones specifically contained as grounds in paragraph 13(a) and (b) of the petition.
?Learned Counsel for the appellant did not mince words when he argued over issue No. 1 that the only ground upon which the petition was founded are those grounds circumscribed under paragraph 13 of the petition and none other and to that extent paragraphs 14, 15, 16, and 17 of the petition cannot be reckoned with as grounds for presenting a
petition.
This argument of Counsel in his brief is premised on the fact that it is only paragraph 13 of the entire petition that was introduced with an opening remark or a heading i.e. “the grounds upon which this petition is presented are as follows:”. He argued that so far as this opening remark was not extended to other paragraphs, the intention was to limit the grounds for the petition to paragraph 13. Counsel urged us to look at the grammatical construction of the sentence leading to paragraph 13 and the use of punctuation marks, in this case, the column, to connect the introductory remark to the rest of paragraph 13(a)(b). He urged us to hold that the inclusion of paragraphs 14, 15, 16 and 17 of the petition as grounds of the petition was only meant to expand and elongate the introductory remark preceding paragraph 13.
?On how the contents of a document can be interpreted, Learned Counsel submits that the same law which govern the interpretation of statutes also governs the interpretation of documents hence unambiguous words should be given their ordinary grammatical meaning. Learned Counsel in his brief of argument cited several decisions on this point
including decisions in Ogbonna v. A/G of Imo State (1992) 1 NWLR (Pt. 220) 647, 685; Adams v. Umar (2009) 5 NWLR (Pt. 6633) 41, 130; Calabar Central Co-operative Thrift & Credit Society Ltd v. Ekpo (2008) 6 NWLR (Pt.1083) 362, 392. ANPP v. Goni (2012) 7 NWLR (Pt. 1298) 147, 180 etc. He urged us to so construe paragraph 13 of the petition relative to the opening remarks, regard being had to the purpose for which the conjuctive punctuation mark was used to introduce that paragraph.
Before concluding his argument over issue 1 Learned Counsel alluded to Paragraph 4(2) of the First Schedule to the Electoral Act (as amended) to submit that paragraph 13 is confined to distinct issues different from the other four (4) paragraphs that succeed it such that the grounds of the petition are only those listed at paragraph 13 of the petition and no more. He argued as to so hold.
Mr. Giwa-Amu, of Counsel for the 1st Respondent, argued per contra stating that the Lower Tribunal was right in holding and considering the grounds of petition in paragraphs 13-17 of the petition.
?While conceding to the submission that the rule for the interpretation of Documents is the same as
those for Statutes, however argued that in the interpretation of those Statutes or Documents, it is the entire document or statute that must be looked into. Applying this same principle, to pleadings as filed by parties, he argues that,since pleadings of a party is the foundation of his case, it is the entire pleadings, not part thereof that must be looked into in considering the grounds or facts in the case; He cited in support, the decisions in Agesa v. Raymond Ekwenem 173 LRCN page 1; Tukur v. Gongola State (1989) 4 NWLR (Pt. 117) 517; NDIC v. SBN Ltd. (2013) 1 NWLR (Pt. 801) 311; Nwokorobia v. Nwogu (2009) 172 LRCN 41.
Learned Counsel’s further submission is that the issue on hand is not so much an issue of interpretation of statutes or documents but one arising from the pleadings of the 1st Respondent, whose grounds for the petition included those facts pleaded at paragraphs 14, 15, 16 and 17. He urged us to so hold.
?The approach of Counsel for the 2nd Respondent to issue 1 is different. To him ground 1 in the Notice and Grounds of appeal from which issue No. 1 is derived is not a competent ground of appeal, the same not having arisen from the Ruling of
the Lower Tribunal as delivered on the 1/7/2015. It is his submission that by that decision the Lower Tribunal struck out paragraphs 14, 15, 16 and 17 on account of the same not being valid grounds upon which a petition can be presented. The Appellant according to the Learned Counsel, benefitted from this Ruling of the Tribunal and could not have appealed against that order striking out those paragraphs of the petition, citing the decision in Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113, 144. Learned Counsel further contend that there being no appeal against the order striking out those aspects of the petition, there is also no basis for the complaint as in Ground 1 in the Notice and Grounds of Appeal which in any case has not arisen from the decision appealed against. He urged us to strike out this Ground of appeal together with the issue formulated from it mere academic question. Decisions in PDP vs. INEC (2014) 7-9 MJSC 181, 194 and Daniel v. INEC (supra) at pages 140-147 were cited and relied on.
In response, the appellant in his reply brief dated the 12/7/2015 and filed on 13/7/2015 debunked those submissions saying that the 2nd Respondent was not
consistent in his case having earlier admitted that paragraphs 15, 16 and 17 of the petition were valid grounds for presenting a petition, he could not now turn around to question the competency of Ground 1 in the Notice of appeal relative to those paragraphs.
The issue of the competency or otherwise of a ground of appeal raises some fundamental question which touch on the survival of that appeal or Ground of appeal. But in addressing such questions, resort must be had to the ruling or decision appealed against in order to ascertain (as in this case) whether or not the ground of appeal complained of indeed arose from that decision or Ruling. See:- Saraki v. Kotoye (1992) NWLR (Pt. 264) 156 or (1992) 11/12 SCNJ 26; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546, 590.
The said ground 1 of the Notice and Grounds of appeal, shorn of the particulars, state thus:
“The Lower Tribunal erred in Law when it held that paragraph 15, 16 and 17 of the petition are grounds of the petition.”
In the Ruling of the Lower Tribunal at page 1271 of the record book, vol. II, the Tribunal observed as follows:-
“We shall now consider paragraphs 15, 16 and 17 of the petition. The said
paragraphs questioned the content of the affidavit attached to the form of the second respondent that was filed with INEC. The said paragraphs highlighted contradictions between the content of the affidavit and the entries made by the second respondent in his JAMB admission form with respect to his Local Government and State of origin. We should not lose sight of the fact that those paragraphs are couched as grounds of the petition. A cursory look at Section 138 of the Electoral Act will reveal that no such ground exist for questioning an election. We have no hesitation in holding that paragraphs 15, 16 and 17 of the petition are not grounds of petition known to the law. In the circumstance, the said paragraphs cannot counter on this Tribunal jurisdiction to entertain them.
The Tribunal went ahead at pages 1272 of the record to strike out paragraphs 15, 16 and 17 of the petition. This clearly is not in doubt and for which the Tribunal gave her reasons for doing so in that paragraphs 15, 16 and 17 were not in consonance with the grounds listed under S. 138 of Electoral Act 2010 (as amended) upon which a petition can be presented. This to my mind is the ratio
decidendi of the Ruling of the Tribunal relative to the issue on hand. This is notwithstanding the finding earlier made by it that:
“We should not lose sight of the fact that those paragraphs are couched as grounds of the petition.” See: page 1271 of the record.
That is what the petitioner perceived of his paragraphs 15, 16 and 17 of the petition. He perceived them as grounds for presenting a petition. It is one thing to present a petition stating in it the grounds for the petition, it is another thing altogether that the Grounds so stated satisfied the requirements or standard set by law and the constitution.
In the instant case, the Lower Tribunal found, after the review of all relevant laws, that the petitioner in his paragraphs 15, 16 and 17 of the petition fell short of meeting that standard as can be reckoned with as grounds for presenting a petition; and so the Tribunal struck out those paragraphs. At this point, there was nothing left of paragraphs 15, 16 and 17 of the petition as can be appealed against.
The apex Court in Saraki v. Kotoye (supra) held:
?”Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the
judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the pre condition for the vesting of the judicial powers of the constitution in the Courts.” Per Karibi-Whyte JSC.
The manner by which Ground 1 in the Notice of appeal was crafted give the impression that the Lower Tribunal had adjudged paragraphs 15, 16 and 17 of the petition as valid grounds for presenting a petition whereas the Tribunal did not say so.
?Ground 1 of the Notice and Grounds of appeal is alien and did not flow from the decision or ruling appealed against. It is to that extent an incompetent Ground of appeal. I endorse the submissions made by Counsel for the 2nd Respondent on this point that Ground 1 in the Notice and Grounds of appeal is incompetent. Same is hereby struck out. The same goes with the issue derived and/or formulated out of the said ground and the submissions of learned appellant’s counsel made thereto amount to mere academic exercise. See: PDP vs. INEC (2014) 7-9 MJSC 181, 194. Daniel vs. INEC (supra) 146-147. They are all built
on quick sand and so must they crumble like a pack of cards, same not having been built on solid foundation, it will collapse. See: McFoy v. UAC (1961) 3 All E. R. 1160. I so order and strike out issue No. 1 as well.
But assuming for the moment that Ground 1 in the Notice and Grounds of Appeal was a valid Ground together with the issue formulated from it, the appeal can still not succeed, the reason being that paragraph 14 of the petition is a valid and subsisting ground for presenting a petition and the Trial Tribunal was right to so hold.
A look at the said paragraph will reveal that facts averred therein relate to issues of qualification or non qualification of the Appellant to contest election. Those facts are separate and distinct from those facts averred or stated at paragraph 13. What we should look out for is whether paragraph 14 of the Petition is in conformity with the law, the rules and regulation for presenting an Election Petition particularly S. 138(c), Paragraphs 4(1)(a) and 4(2) of the 1st Schedule to the Election Act, 2010 (as amended) and construe same accordingly. This I have done. Paragraph 14 is a distinct and separate paragraph of its own
in line with the Rules and same is valid Ground for presentation of an Election Petition. Accordingly issue 1 is resolved in favour of the Respondents.
What I am now left to consider and address is issue No. 2 formulated from Ground 2 in the Notice and Grounds of Appeal. Issue No. 2 read thus:-
“Whether the Ground contained in paragraph 13(b) of the petition is a valid ground cognizable under Section 138(c) of the Electoral Act, 2010 (as amended).”
Learned Appellant’s Counsel in his brief has argued that paragraph 13(b) of the petition was clearly outside Section 138(1)(a)(b)(c) and (d) of the Electoral Act and to that extent, the Trial Tribunal’s ruling or holding to the contrary was/is incorrect. It was argued that by the wordings of paragraph 13(b) of the petition, the petitioner has clearly expanded the scope of the application of Section 138(1) of the Electoral Act. He wondered why the Tribunal chose to make a “u” turn having earlier taken a position and rightly too in relation to paragraph 13(a) of the same petition when it struck out same as not being in tandem with S. 138(1) of the Electoral Act and the Constitution. Counsel referred us to the Supreme
Court decisions in Ojukwu v. Yaradua (2009) 12 NWLR (Pt. 1154) 50; Ayogu v. Nnamani (2006) 8 NWLR (Pt. 981) 160, 196; UNTHMB v. Nnoli (1994) 8 NWLR (Pt. 363) 376, 412 to urge us to resolve this issue in favour of the appellant and hold that the 1st and 2nd respondents had not complied with the mandatory provisions of the Electoral Act of Section 138(1).
Mr. Giwa-Amu of learned counsel for the 1st Respondent did not however see anything wrong with paragraph 13(b) of the petition and the Ruling of the Lower Tribunal. To him all is well. I would rather say, that in his attempts to defend that Ruling of the Tribunal and justify the validity of paragraph 13(b) vis a vis Section 138(1)(b) of Electoral Act, he went evidential as if he had been called upon to lead and introduce evidence into his brief of argument. I say this with reference to his brief and submissions made thereto at paragraphs 3.07; 3.09; and 3.10 among other paragraphs in his brief of argument. It may very well be that it is for this same reason, that paragraph 13(b) of the petition is being questioned in this appeal. I will come to that in a matter of moments.
?For now I should also observe that like
it is with the 1st Respondent the 2nd Respondent in her brief of argument dated and filed on the 12/8/15 take the view that paragraph 13(b) was consistent with Section 138(1)(b) of the Electoral Act so far as the irregularities envisaged by the petition amount to corrupt practices within the meaning of the Electoral Act, Section 138(1)(b), and the decision in Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt. 1154) 50, 121. Counsel urged us therefore to resolve issue 2 in favour of the 2nd Respondent. He further cited and relied on the decision in Medical and Dental Practitioners Disciplinary Tribunal vs. Dr. John Emewulu Nicholas Okonkwo (2001) FWLR (Pt. 44) 502, 586-588 in support of his contention.
I have noted the response made by the appellant to the respective reply briefs filed by the 1st and 2nd Respondents on the validity of paragraph 13(b) of the petition. The live question is whether paragraph 13(b) of the petition is a ground as required by law. This question is germane because by the provisions of the Electoral Act 2010 (as amended), an election may be questioned or contested on any of Grounds listed at Paragraphs (a)-(d) of Section 138 (1) of the Act or a
combination of two or more of them. The Section provides thus:-
“138(1) An Election may be questioned on any of the following grounds, that is to say:
(a) 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 provisions 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.”
On the other hand is paragraph 13(b) of the petition.It states as follows:-
“13
(a) X X X X X X X X X X X
(b) That there are so many irregularities in respect of the use of the card reader during the election, as many polling units did not have the card readers or make use of the said card readers even where available. The petitioners specifically say that the following Polling Units where the Card Reader was not available or used even where available:
1. Ekpe
2. Badagry
3. Mushin
4. Ikorodu
5. Eti Osa
6. Alimosho
7. Ikeja
8. Ibeju Lekki
9. Lagos Island
10. Apapa
11. Ifako Ijaiye
12. Kosofe
13. Mainland
14. Agege
15. Somolu”
It is instructive to note that the foregoing paragraph was presented as a ground of petition. Although the appellant took objection to the validity of the said paragraph as ground for bringing petition, the Trial Tribunal ruled otherwise when it held at page 1274 to 1275 of record, vol. II that:
“Paragraph 13(b) of the petition is also founded on Section 138(1)(b) of the Electoral Act. Under this paragraph, the petitioners are challenging the election of the second respondent on the ground of irregularity in the use of card readers. Even though the petitioners did not use the language of the Act we are in agreement with them that in forming this relief there was no expansion in the purport of the Electoral Act in Section 138(1)(b). It is indisputable that a challenge to an election on the ground of irregularity is squarely within the confines of the Electoral Act, and we so hold. The objection with respect to Paragraph 13(b) of the petition is therefore overruled?”
I do take note of the finding made at the trial Tribunal in the extract above to the effect that Paragraph 13(b) of the petition “is also founded on Section
138(1)(b) of the Electoral Act”. In the application of that provision of the Act, the petitioner may choose either of the two (2) procedures below:-
(1) That the petitioner may adopt or copy word for word the language of the provision of Section 138(1)(b) as his Ground for the petition, OR
(2) The Grounds for the petition may be coined in the petitioner’s own language but such must be within the parameters set by the provision of Section 138(1)(b). In these cases, the petition or Grounds thereto, would have been founded on the relevant provisions of the Act.
The apex Court in Ojukwu vs. Yar’adua (2009) 12 NWLR (Pt. 1154) 50 speaking about S. 145(1) of Electoral Act 2006, a provision similar to S. 138(1) put the matter succinctly thus at page 121 of the report
“A petitioner is required to question an election on any of the grounds in Section 145(1) of the Act. He is expected to copy the Section 145(1) grounds word for word. I think a petitioner can also use his own language to convey the exact meaning and purport of the sub-section. In the alternative situation, a petitioner cannot go outside the ambit of Section 145(1) of the Act. In other words, he cannot add to
or subtract from the provision of Section 145(1). In other to be on the safer side, the ideal to do is to copy the appropriate ground or grounds as in the sub section.
Words underlined for emphasis only. This Court had in the case of Ayogu v. Nnamani (2006) 8 NWLR (Pt. 981) 160 made pronouncements similar to those in Ojukwu’s case (supra) at page 196, the combined effect of which is that, a formula principle or guideline has been laid to ease the work of the petitioner on the way to utilize and apply Section 138(1) of the Electoral Act of which a departure from would render that Ground of petition as incompetent and liable to be struck out as frivolous and baseless.
?I have not only reproduced paragraph 13(b) of the petition, I have made efforts to relate same to S. 138(1)(b) of the Electoral Act. One thing is clear: the petitioner having chosen to use his own words or language in framing his grounds under paragraph 13(b) of the petition went on a wild goose chase such that what was presented as ground upon which the petition was founded was clearly outside the ambit as permitted by law under Section 138(1)(b) of Electoral Act. If I may elucidate: paragraph
13(b) of the petition raises complaints over “so many irregularities in the use of the card reader; many polling units did not have card reader or make use of the said card readers. The polling units where the card reader was not available or used even where available. “These averments are not within the parameters of S. 138(1)(b) of the Act. It is an attempt to expand that provision of the law. This is a case of failure of compliance with relevant provisions of the Electoral Act. Election petitions are sui generis. Any error no matter how slight in complying with the provisions of the Electoral Act is fatal to the petition. See Kazeem vs. Kola (2012) 1 NWLR (Pt. 1282) 543, 559.”
When an Act or law or Rules of Court provide for the manner for carrying out a specified act, the procedure should be followed in actualizing the act. See: Kalu v. Uzor (2004) 12 NWLR (Pt. 886) 1, 20; Ojukwu v. Yar’adua (supra). Thus I am in agreement with learned counsel for the appellant over his submission that paragraph 13(b) of the petition is alien to the express wordings, language and contents of Section 138(1) of the Electoral Act. In
those circumstances the trial Tribunal ought to have struck out the said paragraph 13(b) of the petition but failed hence the appeal to this Court on this account has considerable merit. Paragraph 13(b) of the petition not being a competent Ground for bringing petition is hereby struck out and aspects of the Ruling of the trial Tribunal validating the said paragraph 13(b) of the petition is set aside. In effect, I resolve issue No. 2 in favour of the Appellant. This appeal succeeds in part and same is allowed. Parties to bear own cost.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with and adopt the lead Judgment of my Lord, Saidu Tanko Hussaini, JCA that this appeal be allowed in part only.
It is so allowed and in terms of all the consequential orders made therein.
OBANDE FESTUS OGBUINYA, J.C.A.: I agree
?EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the Judgment delivered by my learned brother, SAIDU TANKO HUSSAINI, JCA. I am in agreement with his reasoning, conclusion and the orders therein.
Appearances
Chief Wole Olanikpekun, SAN (with
Doyin Rhodes Vivour (Mrs);
Adeniyi Kazeem;
Olabode Olanikpekun;
Ademola Adesina;
I. Akintunde and
Khalid Abbas For the Appellant
1. G. O. Giwa-Amu (with
R. A. Obhafuoso)
for the 1st Respondent.
2. Richard Oma Ahonaruogho
(with A. M. Kotoye; Oluyemi Shoyoye;
T. J. Agoro; M. O. Earnest;
A. O. Adelekan; Razak Adamu
(for the 2nd Respondent).
3. E. R. Emkpoepuo for the
3rd and 5th Respondents.
4. Chief Charles Uwensuyi-Edwomwan,
SAN (with R. A. O. Adegoke; Osasu Isibor;
Prince Eric Ogiegor;
Ekene Chuks-Okeke (Mrs);
Damitola Asuni;
for the 4th Respondent. For the Respondents
Appearances
Chief Wole Olanikpekun, S.A.N. (with Doyin Rhodes Vivour (Mrs); Adeniyi Kazeem; Olabode Olanikpekun; Ademola Adesina; I. Akintunde and Khalid AbbasFor Appellant
AND
G. O. Giwa-Amu (with R. A. Obhafuoso) for the 1st Respondent.
Richard Oma Ahonaruogho (with A. M. Kotoye; Oluyemi Shoyoye; T. J. Agoro; M. O. Earnest; A. O. Adelekan; Razak Adamu (for the 2nd Respondent).
E. R. Emkpoepuo for the 3rd and 5th Respondents.
Chief Charles Uwensuyi-Edwomwan, SAN (with R. A. O. Adegoke; Osasu Isibor; Prince Eric Ogiegor; Ekene Chuks-Okeke (Mrs); Damitola Asuni; for the 4th Respondent.For Respondent
