PRINCE IME UDONTE v. RAPHAEL EDET BASSEY & ORS
(1999)LCN/0604(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of March, 1999
CA/C/22/99
JUSTICES:
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
OKWUCHUKWU OPENE Justice of The Court of Appeal of Nigeria
SIMEON OSUJI EKPE Justice of The Court of Appeal of Nigeria
Between
PRINCE IME UDONTE Appellant(s)
AND
RAPHAEL EDET BASSEY & ORS Respondent(s)
RATIO
WHETHER OR NOT AN APPLICATION FOR AMENDMENT OF AN ELECTION PETITION WILL BE REFUSED IF MADE AFTER THE EXPIRATION OF TIME
I only wish to add for emphasis that the tribunal was right in refusing to allow the appellant amend his petition by inserting the lawful votes scored by the candidates, as well as the disputed votes, because the said application was made after expiration of time for filing petition. For authority on this, please see the lead judgment of Adamu, J.C.A. in case of Ogundiran v. Olalekan (1998) 8 N.W.L.R. (Pt.561) 313, at 321, which in turn was based on Opia v. Ibru (1992) 3 NWLR (Pt.231) 658. PER AKPABIO, J.C.A.
WHETHER OR NOT FACTS MUST BE PLEADED
The law is that facts must first be pleaded before documents are brought in to prove them. Example in land cases the boundaries of a disputed land must first be pleaded in the statement of claim or defence, before a survey plan is tendered to prove them. A survey plan tendered when boundaries of land have not been stated any where, will go to no issue, and become irrelevant. The same would apply to the documents containing number of alleged disputed votes, when the number of those votes had not been stated anywhere. See the case of Emegokwue v. Okadigbo (1973) 4 S.C. 113 at 117, where the Supreme Court laid it down that:
“Evidence adduced without pleadings goes to no issue and should be ignored.” PER AKPABIO, J.C.A.
OPENE, J.C.A. (Delivering the Leading Judgment): The petitioner/appellant and the 1st respondent were the candidates for the Chairmanship or Nsit Atai Local Government, Akwa Ibom State in the Local Government Elections held on the 5th day of December, 1998.
The appellant lost the elections to the 1st respondent and as a result of this, the appellant filed a petition in the Local Government Election Petition Tribunal, Akwa Ibom State, sitting at Uyo praying the tribunal among other things to declare that the 1st respondent was not duly elected and/or returned.
The appellant later brought a motion to amend his petition, the motion was heard and dismissed on the 13th day of January, 1999. The 1st respondent thereupon filed an application praying the tribunal to set aside the petition as it is incurably defective for non-compliance with the mandatory provisions of Schedule 5, paragraph 5 (1)(c) or Decree No. 36 of 1998. The tribunal heard this motion and struck out the petition on 20th January, 1999.
Dissatisfied with this ruling, the appellant has now appealed to this court.
The appellant filed three grounds of appeal. The appellant, the 1st respondent and the 2nd – 4th respondents filed their briefs of arguments.
Chief Uyouko, the learned Counsel for the 1st respondent filed a preliminary objection challenging the competence of the appeal on the ground that an appeal does not lie against a decision made by the Local Government Election Tribunal “in” petition, that this appeal is against such a decision and thus incompetent.
In the 1st respondent’s brief of argument, the 1st respondent argued that the ruling of the Court is an interlocutory and that the rights of the parties were not decided. The following cases were referred to – Omunuwa v. Oshodin (1985) 8 NWLR (Pt.10) 924. Alaye of Effon & Ors. v. Fasan & Ors (1958) 1 N.S.C.C. 35; (1988) 3 FSC 68. (1958) SCNLR 171
The simple answer to this preliminary objection is that it is not well taken, section 86 (1) of Decree 36 of 1998 states that an appeal arising in respect of an election petition under this Decree shall lie to the Constitutional Court. This section of the law does not say that an appeal lies only against a final decision of the Tribunal and not against an interlocutory decision.
Further, the ruling of law tribunal has completely determined the rights of the parties as there is nothing more left to be decided again between the parties. I will therefore overrule the objection.
The most important issue that calls for decision in this appeal is whether the tribunal was right in assuming jurisdiction to hear the 1st respondent’s motion to set aside the petition when the 1st respondent had taken steps in the proceeding by entering an unconditional appearance and filing a reply.
paragraph 50(2) of Schedule 5 of the Decree states:
“An application to set aside an Election Petition or a proceeding resulting there from for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when no party making the application has not taken any fresh step in the proceedings after the knowledge of the defect.”
The appellant’s complaint is that the 1st respondent had taken steps in the proceeding by filing a reply and that his application should not be allowed.
The tribunal in its ruling at p.64 of the record of proceeding stated:
“The conclusion we reach therefore is that even if we exercise our discretion under paragraph 5 (6) of Schedule 5 in favour of the petitioner it would be an impracticable and futile exercise.
Further more, the discretion of court must be exercised judicially and judiciously and not arbitrarily.”
No doubt, this finding of the tribunal cannot he faulted. Paragraph 5(1)(e)of Schedule 5 of the Decree states-
“5(1) An Election Petition under this Decree shall:-
(a) …
(b) …
(c) State the holdings of the election, the scores of the candidates and the person returned as the winner of the election.”
In the appellant’s petition, he failed to state this, vital and mandatory information which is the holding of an election, the scores of the candidates and the person returned as the winner.
It therefore means that even if this matter is for any reason resolved in the appellant’s favour that it will be impossible for the appellant to prosecute his petition as he had failed to comply with the provision of paragraph 5 (1)(c) of Schedule 5 and the appellant cannot also amend the petition as he did not appeal against the ruling dismissing his application for an amendment. It was for this reason that the tribunal stated that the exercise of the discretion under paragraph 5(6) of Schedule 5 in favour of the appellant would be an impracticable and futile exercise.
In respect of issues 2 and 3 formulated by the appellant. I must say that the provisions of paragraph 5(1)(c) of Schedule 5 are mandatory and all of them have to be complied with.
The argument of the appellant that he has complied with paragraph 5(1) of Schedule 5 to the Decree and that for an election petition to be competent that it must set out in detail one or more of the grounds specified in paragraph 5(1) of Schedule 5 to the Decree has no basis. All the grounds specified must be complied with.
On the whole. I am of the view that there is no merit in the appeal and that it should be dismissed. In the result, I hereby dismiss the appeal. The 1st respondent is entitled to costs which I assess and fix at the sum of N3.000.00.
AKPABIO, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother. Opene, J.C.A., and also studied the records myself, and agree with my learned brother that this appeal has no merit whatsoever and should he dismissed.
This was an election petition brought by the appellant herein (Prince Ime Udonte) who contested the Local Government Chairmanship Election of 5th December, 1998. on the platform of the Peoples’ Democratic Party (PDP) against the 1st respondent (Raphael Edet Bassey) who contested on the platform of All Peoples’ Party (APP) and three others at the Local Government Election Tribunal Uyo, Akwa-Ibom state, complaining in the main:
“That the 1st respondent was not duly ejected by a majority or lawful votes cast at the election'”
In fairness to the appellant, there were other supplementary grounds viz:
“That the 1st respondent was disqualified at the time of the Election from being elected to the office of chairman (but no particulars of disqualification were given).”
It was also further contended that:
“The Election of 5th December, 1998 in Nsit Atai Local Governmenl was marred by bribery, corruption, thuggery and undue influence hence it was not conducted in substantial conformity with the Decree.”
Here again there were no ‘particulars’ given as to who bribed who, or who brought thugs to beat who?
Be that as it may, after the petition had been filed and served, but before a reply had been filed by any of the respondents the appellant himself brought a motion on notice pursuant to paragraphs 15(1) and 27(ii) of the Local Government Basic Constitutional and Transitional Provisions Decree No. 36 of 1998, for leave inter alia to amend his petition by inserting sub-paras (6a) and (6b) 10 para. 9 of the main petition in order to show the number of votes scored by each of the candidates, and also showing the number of votes that were “cancelled and substituted with lesser figures thus depriving the petitioner of 4.529 votes.
However, when the application came up for argument on 12th January, 1990, it was stoutly opposed by Chief U. S. Uyouko, learned counsel for 1st respondent, who had filed a counter-affidavit opposing the application on the grounds inter-alia that motion for the proposed amendment was brought after the expiration of the 14 days period, within which the petition could be brought; and also that the proposed amendment introduced substantial allegations of fact on:
(i) total figures alleged to have been wrongly added to electoral votes
(ii) a major allegation of commission of a crime. It also introduced documents.
At the end of the arguments, the tribunal upheld the objection of the 1st respondent and refused the application for leave to amend the petition, as it was made outside the statutory period. After that the 1st respondent proceeded to file his reply to the Original Petition. However, before actual hearing of the petition could commence, the 1st respondent’s counsel brought another application pursuant to Schedule 5, para 5(6) of Decree No.36 of 1998 praying for the tribunal’s order “setting aside this election petition as it is incompetent” on the grounds that –
“The petition is incurably defective for non-compliance with the mandatory provisions of Schedule 5, Para 5(1) (c) of Decree No.36 of 1998.”
This application was again vigorously argued with a wealth of authorities on both sides at the end of the argument, the tribunal came out with 10 paged reserved ruling in which it upheld the objection of the 1st respondent and struck out the petition for being incompetent.
The petitioner being dissatisfied with the ruling, now appealed to this court, questioning in the main –
“Whether the tribunal was right in assuming jurisdiction to hear the 1st respondent’s motion to set aside the petition when the 1st respondent had taken steps in the proceedings by entering an unconditional appearance and filing a reply.”
My learned brother in the lead judgment has adequately considered all the issues canvassed by both parties in their brief and resolved them in favour of the 1st respondent, and I agree with him.
I only wish to add for emphasis that the tribunal was right in refusing to allow the appellant amend his petition by inserting the lawful votes scored by the candidates, as well as the disputed votes, because the said application was made after expiration of time for filing petition. For authority on this, please see the lead judgment of Adamu, J.C.A. in case of Ogundiran v. Olalekan (1998) 8 N.W.L.R. (Pt.561) 313, at 321, which in turn was based on Opia v. Ibru (1992) 3 NWLR (Pt.231) 658.
The fact that is was the appellant himself who applied to amend his petition to supply the number of votes scored by the candidates, was, to my mind, an admission that his petition was defective, in that the most vital ingredients were missing. It is my respectful view therefore that since the most vital ingredients in appellant’s petition was missing, the whole petition was defective and should have been struck out as incompetent right from when the first ruling was delivered. The tribunal members saw that it would be an exercise in futility, “beating a dead horse” to continue with the trial. Only the appellant did not see the obvious.
His argument that the number of disputed or questionable votes were contained in the documents he pleaded, also carried no weight, and was rightly discountenanced by the tribunal. The law is that facts must first be pleaded before documents are brought in to prove them. Example in land cases the boundaries of a disputed land must first be pleaded in the statement of claim or defence, before a survey plan is tendered to prove them. A survey plan tendered when boundaries of land have not been stated any where, will go to no issue, and become irrelevant. The same would apply to the documents containing number of alleged disputed votes, when the number of those votes had not been stated anywhere. See the case of Emegokwue v. Okadigbo (1973) 4 S.C. 113 at 117, where the Supreme Court laid it down that:
“Evidence adduced without pleadings goes to no issue and should be ignored.”
In view of the above. I am at one with my learned brother in the lead judgment that the tribunal was right in striking out the petition of the appellant as they did, even though the 1st respondent had already filed his reply. Law is made for man, and not man for the law, I therefore also dismiss the appeal with N3,000.00 cost to the 1st respondent.
EKPE, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother, Opene, J.C.A, just delivered. I agree with his reasoning and conclusion that the appeal be dismissed. I therefore hereby dismiss the appeal and I abide also by the order as to costs made by my learned brother, Opene, J.C.A.
I wish however to make further contribution as a matter of emphasis on Issue No. 1 in the petitioner/appellant’s brief of argument which I consider to be at the hub of this appeal.
The Issue is set out as follows:
“Whether the tribunal was right in assuming jurisdiction to hear the 1st respondent’s motion to set aside the petition when the 1st respondent had taken steps in the proceeding by entering an unconditional appearance and filing a reply:
Paragraph 50(2) or Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No, 36 of 1998 provides thus:
“An application to set aside an Election Petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect,”
To my mind, the above quoted provision relates to the well known legal principle of waiver or acquiescence. It is trite law that a person will not be allowed to complain against an irregularity which he himself has accepted or waived or acquiesced in. See Ogbonna v. Attorney-General, Imo State and 3 Ors. (1992) 1 NWLR (Pt.220) 647 at 676. The case of Noibi v. Fikolati & Anor. (1987) 1 NWLR (Pt.52) 619 restated the principle of acquiescence to the effect that where an action was commenced by an irregular procedure and a defendant who did not complain but took active part therein cannot be later heard to complain of and take advantage of the irregularity. However, it is clear from a long line of authorities that the principle of waiver or acquiescence does not apply where there has been a fundamental failure to comply with the requirement of a statute as such is not a mere irregularity but a fundamental vice. See Sonuga & Ors. v. Anadein  (1967) NMLR 77 at page 79; U.S.A. Trustees Ltd. v. Nigergrob Ceramic Ltd. (1987), NWLR (Pt. 62) 600; Kolawole v. Alberto (1989) NWLR (Pt.98) 382.
In my considered view the election petition filed by the petitioner/appellant on the 18th of December, 1998 was incompetent as was rightly decided by the election tribunal because of the failure to comply with one or the fundamental requirements of constitutive cements of what an election petition shall contain under paragraph 5(1) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No, 36 of 1998. In particular, the omission by the petitioner/appellant to state in his election petition the votes for the candidates in the election showing their scores is a fundamental failure to comply with a statutory requirement under paragraph 5(1)(c) or Schedule 5 to the Decree aforesaid.
Compliance with paragraph 5 (1) (c) of Schedule 5 aforesaid is one of the preconditions for filing a competent and valid election petition where the precondition has not been complied with as in this case, there is no valid or competent election petition and no act subsequent thereto can be regarded as a waiver or an acquiescence to the incompetent election petition, because there was nothing that could be waive or acquiesced in. The Supreme Court made the position quite clear in Bell Nwabueze v. Justice Obi Okoye (1988) 4 NWLR (Pt.91) 664 at page 668 where it stated thus:
“Where a precondition for the doing of an act has not been complied with, no act subsequent thereto can be regarded as valid. This is because the act to which it is subject has not been done.”
The application by the Petitioner/appellant to amend the election petition was rightly refused by the election tribunal not only because it was belatedly made, having regard to the provision of paragraph 15 (2) of Schedule 5 which limits the time for making amendment, but also because the election petition was incompetent, null and void ab initio and you cannot put something on it and expect it to stay there. See Macfoy v. U.A.C. Ltd. (1961) 3 A.E.R. 1169 at pages 1172 to 1173.
From the foregoing, it is therefore my humble opinion that the complaint of the petitioner/appellant against the 1st respondent for taking steps in the proceeding after knowledge of the defect in the election petition is of no consequence.
Appeal dismissed with costs.
Appearances
For Appellant
AND
Chief U. S. Uyouko for 1st Respondent For Respondent
