OLADELE OGUNSAKIN & ANOR. V. ROTIMI SAMUEL AJIDARA & ORS.
(2007)LCN/2516(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2007
CA/IL/EPT/HA/3/2007
RATIO
INTERPRETATION OF STATUTE – “SHALL” AND “MUST”: MEANING OF “SHALL” AND “MUST”
“In PDP v. Taiwo (2004) 8 NWLR (Pt. 876) 677, the Court of Appeal had this to say: “Although it is settled law that a mandatory/absolute provision of an enactment usually expressed by the use of the words “shall” and “must”, must be complied with exactly while a permissive enactment as expressed by the word “may’ obeyed substantially, decided cases have shown that this distinction would be misleading and has to depend more or less upon the construction to be gathered from construing the words “shall” and “may within the context of their respective enactments as a whole, so as to ascertain their true intendment and import within such enactments.” PER MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
COURT – ISSUE OF JURISDICTION : WHETHER THE QUESTION OF LAW AND JURISDICTION CAN BE RAISED AT ANY TIME IN THE PROCEEDINGS ON A FREE FOR ALL PROCEDURE
“In the case of G.T.B. Plc vs. FAD CO/INDUSTRY LTD. (2007) 7 NWLR (Pt. 1033) 307, where the respondent raised a fundamental point of law bordering on the constitution in his address without putting the other party in issue, or on Notice, it was held at P. 322 as follows; “It is the law that question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. The court can raise a matter of law and constitution at any time but in doing so the two sides must be afforded the opportunity of addressing on it” PER MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
ELECTION PETITIONS – ISSUE OF SIGNING OR NOT SIGNING A PETITION : WHETHER THE ISSUE OF SIGNING OR NOT SIGNING NOT RAISED IN EITHER THE MOTION OR AFFIDAVIT BUT IN THE WRITTEN ADDRESS CAN TAKE THE PLACE OF EVIDENCE
In the instant case, the issue of signing or not properly signing was not raised in the motion or in the affidavit in support. It was only raised in the written address of the respondent. Address no matter how well prepared and delivered can not take the place of evidence – UBA PLC. vs ACB (NIG) LTD. (2005) 12 NWLR (Pt. 939) 232 at 277-278 and Aro v. Aro supra at P457. Hence I have no hesitation in holding that the issue of non signing or improper signing of the petition having not been raised in the motion papers or in the affidavit in support is not competent before the Lower Tribunal, hence, it has no jurisdiction to pronounce on it. Be that as it may, it has been firmly held in the case of Dalhatu vs. Dikko (Supra) at 494 as follows:- “In some law chambers, particularly the very busy ones, it is not unusual for junior counsel to sign documents on behalf of their principal especially the more routing ones like motions, statements of claim, statement of defence e.t.c. The signing of each document by junior counsel is in variably with the authority express or implied of the principal counsel in chambers. It will be absurd, even ridiculous to hold that such documents are incompetent because the principal counsel has not come for word to say that the documents were not signed on his authority”. In the case at hand, it was not suggested that somebody who has nothing to do with the chambers came from the blues and signed. Neither it has not been disputed that the petition under consideration was not prepared by counsel in the (Chambers of Chief Afe Babalola & Co.) neither has it been disputed or shown that it was not signed on the authority of the senior or principal counsel in the chambers. It is my considered view that for a party to succeed on allegation of this nature he has to successfully prove by evidence that the signatory to the petition has no authority of the senior counsel in chambers to sign the petition, and this will involve an opportunity being given to the head of chambers to confirm if the petition was not signed on his authority in accordance with the principle of fair hearing.” PER MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
APPEAL – LEAVE OF COURT : WHETHER A PARTY TO AN APPEAL WHO INTENDS TO RAISE OR INTRODUCE A NEW MATTER MUST SEEK LEAVE OF COURT
“A party to an appeal that intends to raise or introduce a noval matter into an appeal must seek leave to do so. This is so in order to avail the other side opportunity to advert to the issue. But to contend that issue of law or constitution can be raised at anytime and do nothing more than to raise it in argument is like playing a disrupting and ambush for the opponent.” PER MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
JUSTICES
MUHAMMED SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. OLADELE OGUNSAKIN
2. PEOPLE DEMOCRATIC PARTY (P.D.P) Appellant(s)
AND
1. ROTIMI SAMUEL AJIDARA
2. ACTION CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER EKITI STATE Respondent(s)
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): The appellants herein filed an election petition before the Ekiti State Governorship and Legislative Houses Election Tribunal challenging the election of the 1st Respondent, Rotimi Samuel Ajidara, as a member of the Ekiti House of Assembly representing Ekiti East/constituency and claimed in their petition against the respondents as follows:-
“WHERE OF YOUR PETITIONER PRAY AS FOLLOWS:-
(1) AN ORDER OF THIS HONOURABLE TRIBUNAL DECLARING THAT AT THE TIME OF THE ELECTION, the 1st Respondent was not qualified to contest for the Ekiti State House of Assembly Election having not attained the age of thirty (30) years as at the 14th of April, 2007.
(2) AN ORDER directing the 1st Petitioner as the winner of the House of Assembly Election in Ekiti East Constituency I having scored the second highest number of lawful votes cast in the House of Assembly Election held on the 14th of April, 2007.
(3) AN ORDER directing the 3rd and 4th Respondent to issue a Certificate of return to the 1st Petitioner as the duly elected member of the Ekiti State House of Assembly from Ekiti East Constituency 1 in the April 14th 2007 Election.”
At the foot of the petition, the name and address of the solicitor to the petition were stated thus:-
FOR – ADEBAYO ADENIPEKUN (SAN)
CHIEF AFE BABALOLA SAN & CO.
(PETITIONER’S COUNSEL) C/O CHIEF DAYO FAJUYI & CO.
BESIDE OKESA POLICE STATION ADO-EKITI
Upon the receipt of the Petition, the 1st respondent filed a notice of preliminary objection, wherein he prayed as follows:-
1. “AN ORDER of this Honourable Tribunal striking out the petition of the petitioners for lack of jurisdiction
2. AN ORDER of this Honourable Tribunal striking out the petition of the petitioners for being incompetent.
3. AND (sic) FOR SUCH FURTHER OR ORDER as this court may deem fit to make in the circumstances of this petition.”
The grounds upon which the preliminary objection was based were two folds i.e
(a) The service of the petition was bad and in-effectual; and
(a) The petition on its face is incompetent. It is to be noted that no particular(s) of the incompetence was supplied. The preliminary objection was however supported by an affidavit containing 14 paragraphs; and all the averments therein were centred on the fact that the 1st respondent was not served with the petition personally. The said petition was served on a neighbour who handed it over to the 1st respondent. No other fact or issue was raised on the affidavit. It is also worthy of note that the preliminary objection was not accompanied with a written address.
The petitioners, after receiving the notice of preliminary objection, filled a written address dated 4/6/07 wherein he submitted that the preliminary objection as filed was incompetent as it was not accompanied with a written address as required by the provisions of paragraph 6 (3) of the Election Tribunal and Court Practice Direction 2007 among others. After the service of this written address on the 1st respondent, he then filed a written address on the 1st respondent; he then filed a written address dated 4/6/2007, without the leave of the lower Tribunal.
It was in this written address that the 1st and 2nd respondents raised the issue that the petition was not signed by the petitioners or by their counsel.
Also on 12/6/07 the 1st and 2nd respondents filed a written address headed “Reply on point of Law” also in support of the preliminary objection.
The much talk preliminary objection was eventually moved on the 28/6/07. The Counsel to the 1st and 2nd respondents, Adeniyi Esq. of Counsel, who moved the court did not adopt the written address filed. He merely relied on the affidavit in support of the preliminary objection. The said Counsel moved as follows:-
“The 1st and 2nd respondents filed a Notice of Preliminary Objection on 25/5/07. We are praying for an order to strike out the petition before the court for being incompetent which has robbed the tribunal of jurisdiction to entertain it. It is supported by 14 paragraph affidavit, deposed to by the 1st respondent. Our reasons are contained in the affidavit in support of the application.”
In fact the preliminary objection was moved as if the learned counsels for the 1st and 2nd respondents have abandoned his brief (i.e written address) as no reference was made to it. It was only the learned counsel to the petitioner who adopted his brief (i.e written address) and highlighted some points in it. I have stated this because of the finding of the Lower Tribunal on page 116 where it was stated thus:-
“Both counsel adopted their respective written addresses and thereafter highlighted vital aspects and furnished further legal authorities. ”
Apparently this finding was not borne out of the record of proceeding before us.
The Lower Tribunal on the 13/7/07 gave its ruling wherein it granted the prayers of the 1st and 2nd respondents by striking out the petition. In its conclusion the Lower Tribunal held as follows:-
“Finally while agreeing with the view that the days of justice by technically (sic) are over, we must point out that there is distinction between a mere and unsubstantial technicality in proceedings that are competent and within the jurisdiction of a trial court and a substantial technicality-which amounts to a condition precedent to the commencement of an action and which renders a proceeding manifestly in competent thereby affecting the jurisdiction of the court. Whereas the former may be waived, the latter as a general rule may not. See NWANCHO VS ELEM (Supra) Per Donghan Mensem JCA at page 1691.
On the whole and for the reason we have given, we hold that the petitioners’ petition is in competent.
“Accordingly and in compliance with the provision of section 147(3) of the Election Act 2006, the Petition i.e EKS/EPT/HA/3/07 Oladele Ogunsakin & Anr. Vs Rotitmi Samuel Ajidara & Ors, is hereby struck out for failure of the petitioner or his solicitor to sign the petition.”- See page 135 – 136 of the Record of proceedings.
The petitioners have been aggrieved by the above decision of the Lower Tribunal and appealed to this court. They filed Notice of Appeal dated 16/2/07 containing seven (7) grounds of appeal. Shorn of their particulars they are reproduced hereunder:-
GROUND 1
The Learned chairman and members of the Election Tribunal erred in law in striking out petition No. EKS/EPT/HA/03/2007 between OLADELE OGUNSAKIN & ANOR VS. ROTIMI SAMUEL AJIDARA & ORS for an alleged breach of Paragraph 4(3) (b) of the 1st Schedule to the Election Act 2006.
GROUND 2
The Learned Chairman and members of the Election Tribunal erred in law in striking out the Appellants’ petition on the ground that it was not signed by the Petitioners’ counsel named at the foot of the election petition.
GROUND 3
The Learned Chairman and members of the Election Tribunal erred in law when they struck out petition No. EKS/EPT/HA/03/2007 on the ground that the signature on the petition is not that of the solicitor named thereon.
GROUND 4
The Learned Chairman and members of the Election Tribunal erred in law by striking out the Appellants’ petition on the ground that authorship of the signature thereon is unknown.
GROUNDS
The Learned Chairman and members of the Election Tribunal erred in law when they held the preliminary objection filed without an “accompanying” written address was competent.
GROUND 6
The Learned Chairman and members of the Election Tribunal erred in law to have struck out the Appellants’ petition on the ground that the solicitor named thereon was not the author the signature.
GROUND 7
The Learned Chairman and members of the Election Tribunal erred in law when they held that the Appellants filed to content that the Petition was signed by either Adebayo Adenipekun, SAN or a Counsel in the chambers of Chief Afe Babalola, SAN & Co.
In accordance with the rules of this court, both parties field and exchanged their briefs of argument. The Appellants Brief dated 23/8/07 and filed on 24/8/07 was adopted on 5/10/07. The Appellants formulated three (3) issues for determination thus:-
ISSUE ONE
WHERE THE 1ST AND 2ND RESPONDENTS’ NOTICE OF PRELIMINARY OBJECTION FILED WITHOUT AN ACCOMPANYING ADDRESS OR WHICH WRITTEN ADDRESS WAS SUBSEQUENTLY FILED WITHOUT LEAVE OF THE TRIBUNAL WAS COMPETENT HAVING REGARD TO THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007 (GROUND 5)
ISSUE TWO
WHETHER THE TRIBUNAL WAS RIGHT TO HAVE STRUCK OUT THE PETITION ON THE GROUND THAT IT WAS NOT SIGNED BY THE PETITIONERS’ COUNSEL HAVING REGARD TO THE MATERIALS BEFORE THE TRIBUNAL? (GROUNDS 2, 6, & 7).
ISSUE THREE
WHETHER A STRIKING OUT ORDER WAS THE APPROPRIATE ORDER TO HAVE BEEN MADE BY THE TRIBUNAL IN THE CIRCUMSTANCE OF THIS CASE? (GROUNDS 1, 3, & 4).
These issues were accepted and also adopted by the 1st and 2nd respondents in their brief of argument dated 17/9/07. It stated thus:-
“We are of the view that the issues formulated by the Appellants in their Brief of Argument are apt and will sufficiently resolve all the issues involved in this appeal, we therefore adopt them “.
This appeal was heard on 5/10/07, learned counsel for the Appellants, Daramola Esq. adopted the Appellants Brief and urged this court to allow the appeal.
On the 1st issue, learned counsel referred to paragraph 6 of the Electoral Tribunal and Court Practice Directions, 2007 and submitted that the Notice of Preliminary Objection is incompetent as it was not accompanied by a written address. He submitted further that rules of court must be complied with. He relied on the case of; Ojugbede Vs Lamidi (1992) 10 NWLR (pt 621) 167, and 171; and Abubakar Vs INEC (2004) 1 NWLR (pt 854) 207 at 227 per Omage JCA. He them urged us to hold that the Tribunal was wrong to have countenanced the 1st and 2nd Respondents’ written address filed subsequent to the filing of their preliminary objection without an order of extension of time.
On the second issues, the learned counsel submitted that neither the grounds of the preliminary objection nor the paragraphs of the affidavit in support of the objection raised the issue of signature on the petition
The issue was only raised in the written address which cannot take the place of evidence. That issue is an issue of fact which must be proved by the person who asserts- section 137 of the Evidence Act. He then cited the case of UBA Plc. v. A.C.B (Nig) Ltd (2005) 12 NWLR 939) page 232 at 277 – 278; Aro vs. Aro (2000) 3 NWLR (Pt. 649) 443 at 457, Udengwu vs. Uzuegbu (2003) 13 NWLR (pt 863) 136 at 151-152, (Sc), Dapialong vs. Dariye (2007) 8 NWLR (Pt. 1036) 239 at 290 – 291 per Bulkachuwa JCA. He urged us to hold that the learned judges of the Tribunal were wrong to have gone outside the affidavit evidence adduced by the 1st and 2nd respondents in the determination of their preliminary objection.
On the third issue, leaned counsel submitted that the tribunal was wrong to have struck out the petition as there was no evidence before it to show that petition was not signed by a counsel in chambers or under the implied authority of the counsel to the petitioner, he relied on the case of Dalhatu vs. Dikko (2005). All FWLR (Pt. 242) 483/494 Learned Counsel distinguished this case from the case at hand. In the alternative, he urged this court to depart from the said decision in view of the new trend of placing substantial justice well above the rules of technicality. He further submits that the alleged non-compliance is a mere technicality which can be waived in the exercise of the courts discretion, as provided in paragraph 4 of the 151 schedule of the Electoral Act 2006, he relies on this on the cases of Ibrahim vs. sheriff (2004) 14 NWLR (Pt 892) 43 at 68, Aduro vs. Osunda (2003) 16 NWLR (Pt 847) 643 at 663, Buhari vs. Obasanjo (2003) 17 NWLR (Pt 850) 423 at 486, 508-509, P.D.P vs. Taiwo (2004) 8 NWLR (Pt 876) 677; Nwole vs. Iwuagwe (2004) 15 NWLR (Pt 895) 61 at 88- 89 (Pt. 900) 487 at 539. He them urged this court to consider the above authorities and allow the appeal.
The learned counsel to the Respondents Adeniyi Esq. adopted their brief and urged us to dismiss the appeal on all grounds and affirm the decision of Lower Tribunal striking out the Appellants, petition. On the first (1) issue for determination he argued that the preliminary objection filed was competent and relied on paragraph 6 (1) (3) of the Practice Direction. He submitted that the preliminary Objection was on point of Law, and since it was not a motion, there was no need to file it along with the written address; he further submitted that paragraph deals with sundry motions and applications, paragraph 3(7) deals with preliminary objection. It was the contention of counsel that in considering the preliminary objection it was the plaintiff writ of summons and statement of claim that would be considered and not the written address. He cites in support, the case of Elebanjo vs. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 136.
Learned counsel for the Respondents agreed that the issue of jurisdiction is so trite and fundamental that it can be raised at any time and in any way whatsoever. It can be raised orally or suo-moto by the court. He cites R.T.E.A vs. N.U.R.T.W (1996) 8 NWLR (part 469) 737 at 43, and Akegbejo vs. Atanga (1996) NWLR (Pt 534) 459/468.
The objection to jurisdiction can not therefore be circumvented, defeated or waived by the rules of court. He urged to resolve issue one against the appellants.
On issue two, learned counsel contended that a casual perusal of the petition will show that the petition was not signed by any of the two petitioners, also that the named solicitor at the foot of the petition did not sign but an unknown and un-disclosed person signed. These are facts apparent on the records which are before the Lower Tribunal. It is thus a case where the facts speak for themselves; and the Tribunal is obliged to look into its records and make use of the information therein – Nwanosike vs. Ndosen (1993) 4 NWLR (Pt. 290) 684/693. It was the contention of the learned counsel under this issue that from the record, there was nothing to suggest that the signature did not belong to the named solicitor on the process as the word” for” was not used after the signature of the named solicitor.
On the third issues, learned counsel relied on Nwancho vs. Elem (2004). All FWLR (Pt 242) 483 at 493. In other words the submitted that he non-signing of the petition was a sufficient ground for striking out the petition by the Tribunal.
Finally learned counsel for the Respondents Adeniyi Esq. submitted, rhetorically in my view, that the Appellants have not made out a case that would justify this court to depart from the decision in Nwancho vs. Elem Surpa. He submitted that the Appellate court can only depart from the decision or overrule itself if it can be proved that the previous decision was given wrongly or reached Per incuriam. He relies on the case of Ugwu vs. Ararume (2007) 12 NWLR (Pt 1048) 367/450, and Ulegele Vs. The Milad Benue State (2001) 2 NWLR (Pt. 696) 73 at 81. He concluded by urging this court to dismiss the appeal in its entirety.
It must be pointed out that what was for determination before the Lower Tribunal was the preliminary objection and not the petition itself, hence this court would restrict and confine itself to the issues raised in Notice of preliminary objection as disclosed in the prayers before the Tribunal and the affidavit in support.
It has been held that in the determination of motions or applications before a court of law its jurisdiction is restricted to the prayers before it and the evidence in support, which is contained in the affidavit in support, to do otherwise is to go outside its limitation and veer into the issues that are not before it. In the case of Dapiancow vs. Dariye (Supra) at 290, this court (Abuja Division) held thus:-
‘A party is bound by what he presents before the court, he cannot ask for one thing and then summersault and advance arguments on another thing. The rules of procedure require that a party is restricted to the prayers in his application; he cannot go out side it and ask for something different. See A-G ABIA STATE VS. A.G. FEDERATION (2006) 16 NWLR (Pt. 1005) 265 at 388.”
Corollary to this principle is that the court is duty bound to decide matters on the basis of the materials placed before it. In the case of Ushae vs. Cop (2001) 2 NWLR (pt. 937) 499/531 it was held as follows:-
“As a matter of general Principle, the duty of court seized of a matter as the instant case is to decide the matter on the basis of the materials placed before it, that is, guided by the issue for determination as per the instant exparte application, The supporting affidavit and the exhibits on the backdrop of the oral submissions of the learned counsel”.
In conclusion in paragraph G. of the report the court concluded thus:-
“I may also add that the trial court cannot go outside the terms of the application before it; however misconceived. It is bound by the terms or prayers in the application before it. See Government of Gongola State vs. Tukur (1989) 4 NWLR (Pt. 117) 592 at 603. the redress here is sought under the rules ” per Chukwuma – Eneh JCA, as he then was at P. 531
I completely agree with the above principles as adumbrated and I wish only to add that the prayers on the motion alone cannot stand if there is no fact deposed in the affidavit in which the court can base its ruling/decision. In the instant case, there is no iota of fact deposed in the affidavit, in which it was suggested that the petition was not signed by the petitioner’s counsel, or under his instruction, if there were such depositions, the petitioners or their counsel would have had an opportunity to reply and place their own versions/facts before the Lower Tribunal. This opportunity was not given. The respondents’ submissions that issue of jurisdiction can be raised at anytime and in whatever manner has not convinced me. A situation where an applicant did not put an adverse party on Notice in its application, and only raised the issue of jurisdiction in his address without affording the other party an opportunity to place his facts before the court cannot be tolerated. To say the least, it amounts to an infraction of the adverse parties’ fundamental human right to fair hearing. In the case of G.T.B. Plc vs. FAD CO/INDUSTRY LTD. (2007) 7 NWLR (Pt. 1033) 307, where the respondent raised a fundamental point of law bordering on the constitution in his address without putting the other party in issue, or on Notice, it was held at P. 322 as follows;
“It is the law that question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. The court can raise a matter of law and constitution at any time but in doing so the two sides must be afforded the opportunity of addressing on it “.
A party to an appeal that intends to raise or introduce a noval matter into an appeal must seek leave to do so. This is so in order to avail the other side opportunity to advert to the issue. But to contend that issue of law or constitution can be raised at anytime and do nothing more than to raise it in argument is like playing a disrupting and ambush for the opponent”.
In the instant case, the issue of signing or not properly signing was not raised in the motion or in the affidavit in support. It was only raised in the written address of the respondent. Address no matter how well prepared and delivered can not take the place of evidence – UBA PLC. vs ACB (NIG) LTD. (2005) 12 NWLR (Pt. 939) 232 at 277-278 and Aro v. Aro supra at P457. Hence I have no hesitation in holding that the issue of non signing or improper signing of the petition having not been raised in the motion papers or in the affidavit in support is not competent before the Lower Tribunal, hence, it has no jurisdiction to pronounce on it.
Be that as it may, it has been firmly held in the case of Dalhatu vs. Dikko (Supra) at 494 as follows:-
“In some law chambers, particularly the very busy ones, it is not unusual for junior counsel to sign documents on behalf of their principal especially the more routing ones like motions, statements of claim, statement of defence e.t.c. The signing of each document by junior counsel is in variably with the authority express or implied of the principal counsel in chambers. It will be absurd, even ridiculous to hold that such documents are incompetent because the principal counsel has not come for word to say that the documents were not signed on his authority”.
In the case at hand, it was not suggested that somebody who has nothing to do with the chambers came from the blues and signed. Neither it has not been disputed that the petition under consideration was not prepared by counsel in the (Chambers of Chief Afe Babalola & Co.) neither has it been disputed or shown that it was not signed on the authority of the senior or principal counsel in the chambers. It is my considered view that for a party to succeed on allegation of this nature he has to successfully prove by evidence that the signatory to the petition has no authority of the senior counsel in chambers to sign the petition, and this will involve an opportunity being given to the head of chambers to confirm if the petition was not signed on his authority in accordance with the principle of fair hearing
The Lower Tribunal in its ruling found as follows See page 128 of the Record.
“The Respondents objectors submitted that the said solicitor to the petitioner did not sign the petition himself as on the face of the petition, it was shown that it was signed for the solicitor by a person who neither indicated his name nor his designation “.
There is no affidavit evidence from the Petitioners/Respondents indicating the person that signed the petition.
We have taken a very careful look at the foot of the petition. On the face of it, it is not difficult to see that the petition was signed for Adebayo Adenipekun SAN Counsel for the petitioners with the word ”for” immediately before his name. There is no contrary submission to this view. It should be noted that through out the argument of this application, it was not urged on us that the petition was personally signed by Adebayo Adenikpekun SAN solicitor for the petitioners”. With tremendous respect to members of the Lower Tribunal, this finding was not based on the affidavit before it. I have earlier in this judgment, held in line with other authorities cited that arguments cannot take the place of evidence. For the purpose of this application the only evidence before the court is the Affidavit in support of the preliminary objection, and there is no where in the paragraphs of the said Affidavit in support where it was alleged that the petition was not signed by Adebayo Adenikpekun SAN or that he did not authorize the person, who signed, to sign on his behalf. If there is no such allegation one wonders why the Tribunal expected the petitioners to file an Affidavit in respect of an allegation that was not contained in the Affidavit in support of the preliminary objection. I therefore hold that this finding of the Lower Tribunal is glaringly perverse and I accordingly set it aside.
Having held that the 1st and 2nd respondents have failed to establish and prove that the petition was not signed by the petitioners’ counselor that he did not authorize the signatory of the petition to sign, on his behalf, the Lower Tribunal was wrong to strike out the petition on that ground.
My Lords, it is my view that the other issues i.e whether the preliminary objection, which was said to be made on point of law, was competent without an accompanying written address filed along with it or whether the proper order to make was that of striking out thus become mere academic issues the exercise of which this court will not dissipate its energy and time on. The petition should not have been struck out in the first place same ought to be saved.
I shall only add this in passing that the petition under the circumstances should not have been struck out on that ground alone. The provisions are not mandatory. In Buhari v. Obasanjo, Oguntade JCA (as he then was) has this to say. “The rules of procedure are an adjunct to the dispensation of justice. They cannot be relied upon to stultify justice”. If I may add, with respect, the said rules are mere addendum”.
Also my learned brother Tabai JCA, as he then was, emphatically, in the same report, made, the following statement:-
“There is no doubt that the plentitude of the powers of the Court of Appeal under paragraph 50(1) of schedule 4 accords it enough powers to overlook the shortcomings in a petition This is a matter of discretion. In any event, the errors complained of are purely of technical nature and play no role in relation to the substantiality of the competence of the petition. The heydays of technicality are now over because the weight of judicial authorities has today shifted from undue reliance of technicalities to doing substantial justice evenhandedly to the parties in the case.
Paragraph 50(1) of the 4th schedule of the Presidential Election (Basic Constitutional and Transitional Provision) Decree No.6 of 1999 is similar to paragraph 49(1) of this Act. In my view there is no such non-compliance with the First Schedule of the Act as renders the petition incompetent.
Finally, I wish to reiterate that by virtue of the provisions section 136(3) and paragraphs 4(6) and 49(1) of the First schedule to the Electoral Act and the decisions in Buhari vs. Yusuf (Supra) and Egolum vs. Obasanjo (Supra) this court has the discretion not to strike out a petition for non-compliance with Part VII of the Electoral Act, 2002 or the provisions of the First Schedule of the Act. The discretion depends by and large on the facts and circumstances of the case. And having regard to the circumstances about the numerous and serious allegations in the petition spanning some 294 paragraphs and the relatively small number of paragraphs in respect of which there is non-joinder and the triviality of the non-compliance with paragraphs 3 and 4 of the first schedule, I would prefer to exercise my discretion against striking out the petition so that the matters in dispute can be tried and determined on their merits and subject, of course, to the rules of pleading admissible legal evidence”. (Underlinings mine for emphasis)
6.14 In PDP v. Taiwo (2004) 8 NWLR (Pt. 876) 677, the Court of Appeal had this to say:
“Although it is settled law that a mandatory/absolute provision of an enactment usually expressed by the use of the words “shall” and “must”, must be complied with exactly while a permissive enactment as expressed by the word “may’ obeyed substantially, decided cases have shown that this distinction would be misleading and has to depend more or less upon the construction to be gathered from construing the words “shall” and “may within the con of their respective enactments as a whole, so as to ascertain their true intendment and import within such enactments. Thus, construing the said paragraph 4(1) (c) not in isolation but on the backdrop of paragraph 4(6) which is clearly permissive as imparted by the word “may” used therein and also against other relevant provisions of the said paragraph 4 as a whole, the clear intention of the said provisions has conferred upon the tribunal discretionary power as to whether or not to strike out a defective petition for failing to conform with the requirements as required by the said paragraph 4(1)(c). In other words, the word “shall” as used in paragraph 4(1)(c) has to be construed as discretionary and not mandatory so as to produce a consistent enactment of paragraph 4 as a whole and also within the con of other relevant provisions of the Act.
The tribunal therefore acted in error in the circumstances of this matter to have failed to exercise it discretion in the light of the construction given to the said paragraph 4(1) (c) and 4(6) above”.
6.15 It is therefore manifest from the above pronouncement that the provisions of paragraph 4 of the 1st Schedule are not mandatory but permissive. Indeed, both Sections 147(3) of the Electoral Act 2006 and paragraph 4(6) of the 1st Schedule give the Tribunal the discretion to save an election petition which does not comply with any provisions of the Electoral Act. This is obvious from the use of the words “may be struck out”. This position was aptly captured by Adeniji JCA in Nwole v. Iwuagwu (2004) 15 NWLR (Pt. 895) 61 at 88-89 when he enthused thus:
That power to strike out I believe, is in the circumstances, merely discretionary in view of the use of the word “may” used all depending on the situation on hand. The word “may” may at times be imperative. It is however trite that discretionary powers are supposed to be used judicially in which case it pays to use the enabling power to save the suit in suitable circumstances, rather than strike it out which act drives all the grievance alleged underground, possibly leading to dissatisfaction, eventually.
It is my humbly view that in all election matters, the use of technicalities should be avoided. It merely helps to shut the opponent out. It never resolves the basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matters too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the Election Tribunal, which must never be seen to shy away form obvious grave allegations. See the case of Nwobodo V. Onoh (Supra).
On the whole I am satisfied on my issue NO.2 that there was an option. In the result I am of the view that in all such matters, there is need to do substantial justice and that demands that the might ought to have proceeded to trial instead of being struck out as it was done.
The petition I repeat, should not have been struck out in the first place. There is no doubt that rules in paragraph 4 of the 1st schedule are not mandatory but rather permissive. The Lower Tribunal was given discretion to save an election petition which does not comply strictly with any provisions of Electoral Act especially when the provision uses the word “may” instead of “shall”. I am fortified by the decision of our court cited also by the Appellants’ counsel in the case of NWOLE VS IWUAGWU (2004) 15 NWLR (part 895) page 61 at 88 – 89.
On the whole my noble Lords, this appeal succeeds, therefore the Ekiti State Governorship and Legislature House Election Tribunal decision striking out petition No. EKS/EPT/HA/3/07 Oladele Ogunsakin & Anor vs. Rotimi Samuel Ajidara Ors and dated 13/07/07 is hereby set aside. Consequently this Petition is sent back to a newly constituted Election Tribunal for hearing de novo on its own merit. Appeal is allowed.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading in draft a copy of the lead Judgment by my learned brother, Muntaka-Coomassie, JCA, and I agree with him that the appeal should be allowed.
The crux of this appeal is the matter of compliance with the rule in paragraph 4(3) (b) of the First Schedule to the Electoral Act, 2006. It states thus:
‘The election petition shall further:
(b) Be sign (sic) by the petitioner or all petitioners or by the Solicitor, if any named at the foot of the election petition.”
It must be stated straightaway that, without prejudice to the complaint of the Appellants as to the manner in which this information was brought to the knowledge of the Tribunal, it is not disputed that the signature appearing on the face of the petition indicates that it was signed “for” Adebayo Adenipekun, SAN. The issue that faced the lower Tribunal was whether this was within the contemplation of paragraph 4(3)(b) above. After listening to both parties, the Tribunal answered this question with an emphatic NO! At page 134 of the record, this is what it said:
‘The petition of the petitioners in the instant case was not signed by the petitioner or his counsel as required by Paragraph 4(3) (b) of the First Schedule to the Electoral Act, 2006. As was the situation in NWANCHO V. ELEM (supra) the petition was signed by an unknown person for the counsel of the Petitioner whose name appeared at the foot of the petition.
In these circumstances, we have no reason whatsoever to differ from the decision of the Court of Appeal in NWANCHO V. ELEM (supra). We therefore hold that the failure of the Petitioner or his counsel to sign the petition in the instant case is a fundamental breach of paragraph 4(3)(b) of the First Schedule to the Electoral Act – which cannot be cured by paragraph 49 (1) of the Schedule… It is our humble view that the petition of the petitioner in the instant case is fundamentally defective as an unsigned document is no document at all. ”
The lower Tribunal went on to declare the petition incompetent and so struck out same. Our attention has been drawn to another decision of this same Election Petition Tribunal, in which, on the same facts, it acted to save the petition. It is Suit No. EKS/EPT/HA/10/07 Akinbo Ayeni & Anor v. Adewale Febisola & Ors (Unreported) Ruling delivered on 18th July, 2007. In that case, following the filing of a counter affidavit stating that the signature on the face of the petition belonged to a junior counsel in the chambers of the solicitor named at the foot of the petition, the Tribunal acted to save the petition by applying the decision in the case of Dalhatu v. Dikko (2005) ALL FWLR (Pt. 242) 483, while distinguishing the case of Nwancho v Elem (supra). It elected at the end of the day to do substantial justice in line with the admonitions in the decisions in Obi-Odu v Duke (2006) 1 NWLR (Pt. 961) 375 and Nwoke v Iwuagwu & Ors (2004) 15 NWLR (Pt. 895).
In the instant case, I have no doubt that if the lower Tribunal had acted properly ab initio in applying the Rules of court and Practice Directions as it sought to do latterly, the Appellants would not have been taken by surprise, as they evidently were, and left without a remedy by the latter day assertion of the Respondents in their Written address. It is evident from the record of the court that the issue of the signature was never raised in the affidavit in support of the Application or in the Grounds of the application. Secondly, instead of filing the ‘Written Address’ of the Applicants along with the Application as the Practice Directions required, it was only filed after the Appellants herein had filed their own Counter affidavit and Written Address in support of their position therein. Of course, since the matter of the signature was not raised in the main affidavit, it was similarly not addressed in the counter affidavit and the Respondents’ Address at the lower Tribunal. As in the Unreported decision of the same Tribunal, Ayeni v. Afebisola (supra), this is the point at which the Appellants would have been availed an opportunity to present their defence, if any, to the issue belatedly raised. As it is, they were shut out by the inadvertence of the Court. If the Appellants had been heard, perhaps it would have become evident to the lower Tribunal that it is the decision of Dalhatu v. Dikko (supra) that would have accorded with the justice of the situation and not Nwancho v. Elem (supra). Instead, the Tribunal boxed itself into a corner and was forced to continue down that path of error.
I am in total agreement with my learned brother that the lower Tribunal fell into deep error when it proceeded to act on facts which were not before the Tribunal in deciding the Preliminary Objection filed. It is not in dispute that, in the Notice of Preliminary Objection to the Petition filed at the lower Tribunal, the Respondents herein neither raised the issue of the signature on the petition in the grounds of the objection nor in the supporting affidavit. All that the affidavit contained were facts to support their contention that the 1st Respondent was not personally served with the processes of the Petition. See pages 2-3 of the record. This P.O. was not filed along with an Address as required by the Rules. However, upon being served the Preliminary Objection and the supporting affidavit, the Appellants filed their counter affidavit along with their Written Address wherein they addressed the issue of law implicit in the matter of service raised in the main affidavit. It is only after this was filed and served on the Respondents herein that they now filed their Written Address and, for the first time, raised the issue of the signature on the Petition. Learned Counsel for the Respondents, without adducing any evidence in that regard, merely drew an inference from the signature on the petition and concluded that it was not signed by the petitioners or their solicitor, and so asked the Tribunal to strike out same. The Petitioners at this point, having no right of Reply, were not availed of the opportunity of addressing the matter of the signature raised latterly in the Respondents’ address. Based on the peculiar facts of this case, can it really be canvassed that the lower Tribunal acted properly in striking out the Petition before it when there was no evidence adduced to substantiate the Respondents’ Counsel’s mere assertion in his address? With due deference to the lower Tribunal, the answer to this question must be a resounding No! The Respondents, having failed to adduce facts in an affidavit to support its assertion in this regard, denied the Appellants the opportunity of responding to any issue in respect of the signature and therefore adducing facts which, if believed, could have saved the Petition before the Tribunal. The Respondents’ action in springing up this issue for the first time in their address which, by the way, was not filed along with the P.O., but filed after the Appellants had filed their own Address, served to overreach the Appellants by shutting them out. Trial by ambush is not a recognised or an acceptable feature of our system of justice. Parties are expected to state their cases upfront so as to put the other party on notice of the case he is going to meet. A trial is not a game of chess where one party, by any means whatsoever, strives to outwit the other.
I am not unmindful of the submission of the Respondents herein that the issue raised in the P.O. was one of law and that it is a case where the facts speak for themselves. Be that as it may, it does not detract from the fact that the Respondents did not raise this issue appropriately from the inception, either in the grounds of the objection or in their affidavit in support to put the Appellants on notice of what they were coming to meet and to enable them respond to same. When the issue was finally raised the issue in the Respondents’ Address, (which was filed belatedly and became evidence given from the bar through the mouth of Counsel), the Appellants’ chances of responding were foreclosed as they had no further right of Reply, The Tribunal therefore proceeded to rule without hearing from Counsel. Fair hearing and justice demands that the Appellants should have been heard before the lower Tribunal applied the sledgehammer to squash the life out of their Petition, As it has been stated, the dismissal of an action is one of the gravest sanctions a Plaintiff can face, if not the gravest. Therefore, a court of law should be most reluctant, loath or slow in invoking its power of dismissal. A court should only use this ultimate and extreme remedy as a last resort and when there are no other avenues of addressing or ameliorating that situation by way of judicial sanction to redress the wrong. Emesin v Nwachukwu (1999) 6 NWLR (Pt, 605) 154, In the instant case, the striking out of the Appellants’ petition is as good as a dismissal. It must always be borne in mind that the proper role of the court is to do substantial justice to the parties before it, Having not heard from the Appellants on the issue of the signature, the signature on the face of the petition, at best, only tells an ambiguous story, which ultimately became a one-sided story. There could have been another side of the story, if only the Appellants were heard on this issue, Therefore, the question to ask is: what is the nature of the injury the Respondents suffered as a result of the ambiguous nature of the signature on the Appellants’ petition? That has not been stated, and I am hard put to see any. It has of times been stated that rules of procedure, as important as they are, are handmaids of justice. In, other words, they are aids to the attainment of justice, to oil the wheels of justice to enable them roll and revolve smoothly to take us to the logical and ultimate destination. They however cease to be aids when they take over and take charge, turning litigants and even the Courts into slaves to the Rules, thereby leading to the perpetration of more injustice in the process. In the instant case, I am of the firm view that substantial justice dictates that the Appellants should have been heard on the matter of the signature before the lower Tribunal took the drastic step of striking out their Petition, which served to shut them out from ventilating the grievances. It should always be borne in mind that election petitions being sui generis are of immense public interest. The outcome of these petitions is of interest and has an impact not only on the litigants before the Court but also on the wider community whose mandate each side purports to have. Tribunals should therefore be very wary and cautious in applying maximum sanctions in cases of infractions of the rules, which though should be obeyed, must be used in a manner to advance the cause of justice and not to stultify it. For when Courts, said to be the last hope of the common man, very easily refuse to hear parties, their real or imagined grievances may be bottled up and driven underground, and when the pressure causes the bottle to break, the contents may spillover everyone causing untold havoc in its wake.
In addition to this, I am in agreement with Akintan, JCA, (as he then was), when he held in the case of Ibrahim v. Sherriff (2004) 14 NWLR (Pt. 892) 43 that the provision in Paragraph 4(6) of the First Schedule to the Electoral Act does not apply to Paragraph 4(3)(b) thereof. The subparagraph 4(6) is specific in restricting the sanction prescribed therein to sub-paragraph 4(1). Even in the instances listed in paragraph 4(1) of the said Schedule, it is not mandatory that a breach must result in an order striking out the petition. This follows from the fact that the use of the phrase “may be struck out” gives room for the imposition of a sanction not as severe as the striking out of the petition. On the other hand, paragraph 49 (1) of the same Schedule, which relates to saving a petition for non-compliance with any of the Rules provides thus:
“49(1) Non compliance with any of the provisions of this Schedule or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Courts so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner or on such terms as the Tribunal or Court may deem fit and just.”
It is my humble view that this provision is aimed at counteracting a situation, (as in this case), where a breach of any of the Rules of Court would lead to an unjust or unreasonable end. In view of the very peculiar facts and circumstances of this case, which I have earlier highlighted, this Rule of Court could have been applied to save the Petition. I agree with Akintan, JCA, (as he then was), that the only situation where a Petition can be struck out on account of defect in signing the Petition is where neither of the Petitioners nor their Counsel signed the petition. This certainly is not the position there is a signature on the face of the Petition which is, at worst, ambiguous and no opportunity was afforded the Appellants to respond to the facts in support of the P.O. on this issue.
It is for these reasons and the fuller reasons given by my learned brother that I too allow the appeal. I abide by the consequential orders made In the lead judgment.
IGNATIUS IGWE AGUBE J.C.A.: I have been opportune to read the Lead Judgment just delivered by I my Lord Muntaka-Coomassie P.J.C.A, and I am in total agreement with his reasonings and conclusions that the Tribunal below was wrong to have struck out the petition. Election Tribunals should endeavour at all times to do substantial justice and seek to determine Petitions before them expeditiously and on the merits rather than pander to the whims and caprices of Counsel who are intent on throwing out genuine complaints of aggrieved opponents on mere technicalities.
What is this hue and cry over a petition which has been duly received by a Respondent who has admitted such receipt only to turn round to question the service of the petition on the ground that it was not served on him personally but through a neighbour?
Again on the vexed issue of non-signing of the petition on behalf of the Learned Counsel whose name appears on the foot of the petition it is clear that the law firm of Afe Babalola & Co. has not complained that the signatory to that petition is not a Counsel in their law firm. Moreover, Adebayo Adenipekun SAN has not also complained that he did not sign or authorize a lawyer in their chambers to sign the petition on his behalf.
I am therefore of the considered view that sometimes, lawyers make mountains out of mole hills in order to score cheap legal points.
Prima-facie, the petition has a signature on top of Adebayo Adenipekun SAN except for the word “for” which is written on the side of the name Adebayo Adenipekun SAN. No opportunity was given to the said Chambers or the legal practitioner in question to show that they never authorized any person to sign on their behalf or that the said signatory is not a legal practitioner in the firm aforesaid.
Where there is no signature at all or name of a legal practitioner, it is a different kettle of fish. I am of the view that the Learned Judges of the Tribunal ought to have given the benefit of doubt to the petitioners and saved the petition which is now the subject of Appeal just as they did in petition No. EKS/EPT/HA/10/07 AKINBO AYENI & ANOR VS. ADEWALE FEBISOLA & ORS.
In that case which is on all fours with this except that the Tribunal attempted a subtle distinction of the facts therein, their Lordships lightly in my view adopted the position taken in the recent case of DALHATU VS. DIKKO (2005) ALL FWLR (pt.242) 483 which held that it is not unusual in some very bus chambers (and I think the chambers of Afe Babalola & Co. is one of them), for junior counsel to sign documents on behalf of their principal especially the more routine ones like motions, statement of claim and even petitions in Election proceedings. The signing of such documents should be undoubtedly with the tacit authority, express or implied of the principal Counsel in chambers except where the chambers or the principal subsequently disputes the said signature.
I agree in toto with the dictum of the learned Justices of the Court of Appeal in DALHATU V. DIKKO Supra that it would tantamount to manifest absurdity and indeed the height of ridicule of the judicial process to hold such documents to be incompetent because the principal has not come forward to say that the documents were signed on his authority.
In deed, the presumption should be in favour of the approval of such signatory and signature where as in this case neither the chambers of Afe Babalola & Co. nor Adebayo Adenipekun SAN has come up to deny the signature as emanating from one f the lawyers in their chambers. The onus should lie on the objectors/Respondents to prove that having been in possession of the names and signatures of all the legal practitioners in the aforesaid chambers of Afe Babalola & Co. what appears on the foot of the petition they seek to impugn does not emanate from the said names and signatories.
There being no such proof either by way of affidavit or Counter affidavit we should allow the sleeping dog to lie.
In essence, I adopt mutatis mutandis the lead Judgment of my Lord Muntaka-Coomassie P.J.C.A. and abide by all the consequential orders made by him in that respect.
Appearances
Mr. Oludaramola,;
A. M. Lawal EsqFor Appellant
AND
Chief A. A. Adeniyi;
A. Fabuleje Esq .
Mr. Adetunji OsoFor Respondent
