PRINCE OLUSOJI EHINLANWO & ANOR v. DR. RAHMAN OLUSEGUN MIMIKO & ORS.
(2013)LCN/6726(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2013
CA/AK/EPT/GOV./02/2013
RATIO
ESSENCE OF PLEADINGS
Now, the law in respect of pleadings is settled beyond per adventure. Pleadings must clearly inform the other party of the nature of the case he is to meet, prevent the other side from being taken by surprise, to tie the hand of the other party from canvassing issues and matters not formally included.
See: Ogu Vs. Ekweremadu (2006) 1 NWLR (part 961) 255 @ p.278; Yar-Adua Vs. Barde (1992) 3 NWLR (pt.231) p.638.’As a very obvious point, the fundamentality and centrality of pleadings cannot be over emphasised. Indeed, a party must swim or sink by his pleadings, he is bound by it. The apex court consistently restated this position in a number of cases. See: Igbikokpe Vs. Ogedengbe (2001) 18 NWLR (pt.745) 1 @ 18 paras C – D, per Kalgo JSC.
This position has been further emphasised that pleadings should be sufficient and comprehensive, otherwise no court should countenance it. The apex court also underscored this principle in Akaniwo vs. Nsirim (2008) WRN (vol. 20) 99 @ 109 where it was held:
“The law expects that pleadings should be sufficient, comprehensive and accurate, suffice it to ay that all parties are bound by their pleadings.”Having stated the law and all that, I will now proceed to examine the struck out paragraphs with a view to finding out whether they were rightly struck out. Per TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. PRINCE OLUSOJI EHINLANWO
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC) Appellant(s)
AND
1. DR. RAHMAN OLUSEGUN MIMIKO
2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER ONDO STATE
5. THE STATE RETURNING OFFICE FOR THE ONDO STATE GOVERNORSHIP ELECTION Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Governorship Election Tribunal Sitting at Akure, Ondo State (Coram: Hon. Justice Aondover Kaka’an, (Chairman), Hon. Justice Halima Sa’adiya Mohammed (Member) and Kadi Muhammad Mahmud (Member) delivered in the four consolidated petitions to wit: (1) Accord Party and 1 Or. Vs. Independent National Electoral Commission & 2 Ors. Petition No: EPT/OD/GOV./01/2012, (2) Oluwarotimi O. Akeredolu, (SAN) & 1 Or. Vs. Rahman O. Mimiko & 2 Ors. Petition No: EPT/OD/GOV./2/2012, (3) Chief Alex Olusola Oke Petition No: EPT/OD/GOV./04/2012 and (4) Price Olusoji Ehinlanwo & 1 Or. Vs. Dr. Rahman Olusegun Mimiko & 4 Ors. petition No: EPT/GOV./05/2012.
The Appellants’ petition is at pages 1-74, the 1st Respondents reply to the Appellants/Petition is at page 75-144, the 2nd Respondent’s reply to the Appellants’ Petition is at pages 142-199, the 3rd to 5th Respondents, reply to the Appellants’ petition is at pages 200-277, the petitioners reply to 1st Respondents reply is at pages 278-283 of the record. The petitioners’ reply to 2nd Respondent’s reply is at pages 284-287 of the records, the Appellants’ reply to 3rd to 5th Respondents’ reply is at pages 288-292.
The order of the Tribunal consolidating the petition and the various applications filed therein is at page 519 of the records of proceeding, while the ruling appealed against which did not favour the Appellants for various reasons stated therein is at pages 531-617 of the records.
The facts of the case as can be gleaned from the records of the Tribunal are that:
The election into the office of Governor, Ondo state was conducted by the 3rd to 5th Respondents on 20th day of October, 2012, in which the 1st Appellant Price Olusoji Ehinlanwo was sponsored and contested as Governorship candidate for the election by the 2nd Appellant, congress for Progressive Change (CPC).
The 1st Respondent, Dr. Rahman Olusegun Mimiko was sponsored as Governorship candidate by the 2nd Respondent, Labour party in which the Appellants complained that the election was marred and vitiated by corrupt practices, gross manipulation and fundamental non compliance with the provisions of the Electoral Act as amended.
The 3rd to 5th Respondents declared and returned the 1st and 2nd Respondents as the winners of the said election, in which the 1st Appellant scored 1,931 votes while the 1st Respondent scored 260,199 votes being the highest votes scored among other contestants from other political parties.
The Appellants thereupon filed their petition dated 10th November, 2012 at the registry of the lower Tribunal Challenging the election and return of the 1st Respondent as the Governor of Ondo State on various grounds articulated in their petition.
All the Respondents filed their respective replies against the petition and included preliminary objections to the hearing of the petition on various points of law raised therein to the effect that the Appellants’ petition be dismissed or struck out. The Appellant equally filed their replies thereto containing grounds for opposing their preliminary objections.
Pleadings were filed, exchanged and closed and parties were ready for full trial before the 1st Respondent, 2nd respondent and 3rd to 5th Respondent thereupon separately filed motion on notice which embodied the same preliminary objection contained in their respective replies.
In the 1st Respondents application dated 21st day of December, 2012 and filed on 24th day of December, 2012, the 1st Respondent contended that: (a) the reliefs 108 (3) and 108(4) contained in the Appellant’s petition were not competent and grantable by the Tribunal, or cannot co-exist together with other reliefs in the petition for determination (b) He further contended that the 1st Appellant did not disclose his locus standi for bringing the petition in compliance with the provisions of paragraphs 4(1) (b) of the First Schedule to the Electoral Act 2010 as amended and section 177 of the Constitution of the Federal Republic of Nigeria, 1999. See pages 307 to 330 of the record.
In the Appellants’ counter affidavit and the written address in support contained in pages 331 to 347, the Appellants’ contention were that the relief are competent and the 1st Appellant had clearly shown that he had the locus standi to present the petition.
The 2nd Respondent on its part filed an application for preliminary objection against the Appellants’ petition dated 21st December 2012 and filed on 24th December 2012. It was contended by the 2nd Respondent that certain paragraphs of the petition were vague, general, generic, unspecified and lacking in particulars.
It argued that some if not all the paragraphs of the petition be struck out, presumably paragraphs: 11, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 46, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 64, 65, 66, 67, 68, 69, 72, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 94, 95, 99, 101, 104, 105 and 107 and went further that paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 29, 30, 39, 47, 48, 49, 50, 51, 62, 63, 70, 74, 76,77 and 90 of pe petition are speculative.
It was further contended that the lower Tribunal lacked jurisdiction to entertain criminal allegation against persons not joined as parties to the petition and that paragraphs containing such allegation should be struck out. See pages 348 to 375 of the record of proceedings.
In the 3rd to 5th Respondents’ preliminary objection filed on 5th January 2012, they canvassed the same issues that some paragraphs of the appellants petition be struck out for being vague woolly and generic, presumably the same paragraphs challenged by the 2nd Respondent were similarly impugned by the 3rd to 5th Respondents.
They equally argued that the Appellants’ petition contained criminal allegation against named and unnamed persons who were neither parties nor joined to the petition. See pages 402 to 420 of the records containing the said 3rd to 5th Respondents’ motion on notice for preliminary objection, and the Appellant’ counter affidavit contained in pages 421-433 of the records.
The 1st Respondents reply to the 3rd to 5th Respondents’ preliminary objection, joining forces with the 3rd to 5th Respondent against the Appellants’ are contained on pages 434 to 448 of the records, while the Appellants reply to the said 1st Respondents reply are contained in pages 449 to 461.
The Appellants filed a motion like all other petitioners in all four petitions before the lower tribunal asking that all preliminary objections against the petition be heard and determined along with the petition pursuant to paragraph 12(5) of the First schedule to the Electoral Act 2010 as amended which motion was opposed by all the Respondent as shown in their various counter affidavit. See pages 462 to 473 of the record appellants’ motion on notice at pages 474 to 494 of the record containing the 2nd Respondent’s counter affidavit and pages 493 to 504 of the record containing the 3rd to 5th Respondent, counter affidavit.
All these applications were consolidated and heard together leading to the ruling on pages 331 to 617 of the record.
It is worthy of note that from the grounds of appeal filed by the Appellants, five issues are distilled for determination to wit:
“3.01 Whether the decision of the lower tribunal was a nullity having not complied with the mandatory provisions of section 294 of the Constitution of the Federal Republic of Nigeria 1999 as amended. Ground 1.
3.02 Whether upon reliance on the decision of Egolum vs. Obasanjo (1999) 7 NWLR (pt. 611), the tribunal misapprehended the Appellants’ petition by striking it out for non compliance with paragraphs 4(1) (a-c) of the Electoral Act 2010 as amended and section 177 of the 1999 constitution – Grounds 2, 6 and 7.
3.03 whether the Tribunal was right by deciding the merit of the Appellants’ petition at the interlocutory stage when evidence have not been led or proffered by the parties – Grounds 3, 4 and 5,
3.04 Whether the,Tribunal correctly interpreted paragraphs 12 (5) of the first schedule to the Electoral Act 2010 as amended by refusing to hear and determine the Respondents’ preliminary objection along with the Appellants’ petition – Ground 10 and 11.
3.05 Whether the Tribunal was justified in striking out virtually all the paragraphs of the Appellants, paragraphs of the Appellants’ petition – Grounds 9, 12 and 13.”
On the 19 day of March, 2012 when the appeal came before us for hearing, Learned counsel for the parties adopted their briefs filed for and against the appeal under consideration. The Appellants’ counsel urged us to allow the appeal whilst the Respondents’ Counsel urged us to uphold the preliminary objections and strike out the appeal. On the merit of the case, they urged us to dismiss the appeal and affirm the decision of the lower Tribunal.
On the first issue for determination, Learned Counsel for the Appellants, Mr. Segun Ogodo Esq., submitted that in resolving this issue, it is important to read the unambiguous provisions of section 294 (1) (2) and (3) together in their plain, simple, ordinary natural and grammatical meaning in order to find out the manifest intention of the legislature in enacting those provisions.
Learned Counsel further submitted that reading through the subsections quoted above, there are golden threads that run through all the subsections as common denominators, underlined in those sub-sections for emphasis. Learned Counsel went on, it is evident from the sub-section when read as a whole that each member constituting the Court(s) in the section must express and deliver their separate opinion in writing which other justices or judges can read as the case may be.
It is the submission of the Learned Counsel that the majority opinion of the decision of a Court consisting more than one judge cannot be determined or ascertained as required by that subsection (3) unless each judge express (sic) and delivers in writing his separate opinion either concurring with the other judges or dissenting as the case may be. At the end of it all, the majority opinion shall be the decision of the court. This is so because, the epithet ‘each’ describing the singulars pronoun justice’ applies matatis mutandis to a court consisting more than one judge, because the phrase ‘each justice’ in sub-section 2 reading the ‘opinion of a justice’ in the proviso to sub-section 2 applies to sub-section 3 even though they are not repeated in sub-section 3 of the section. Learned Counsel relied on the cases of Mobil Oil Nigeria plc vs. IAC (2000) FWLR, (pt. 10) 1632 at 1650 per KARIBI WHITE JSC and Federal Republic of Nigeria vs. Anache and 3 Others. In RE OLAFIOYE (2004) 1 SCM 36 at 88 to buttress his submission on this point.
Learned Counsel contended that applying the above interpretative principles to the construction of the above provisions of the Constitution viz-a-viz the decision of the lower Tribunal, it is apparent especially at page 617 of the record, where the three judges that delivered the ruling merely signed the ruling, while ‘each judge’ failed to express and deliver their respective opinion in writing separately as required by subsection (3) of section 294 of the Constitution.
The unfortunate implication and complication of the decision of the Honourable judges is that it is now difficult and impossible to determine the majority opinion of the judges when should be separately demonstrated by the opinion of ‘each judge’ that heard and determined the consolidated applications from which the ruling emanated.
This is a serious and fundamental contravention of the mandatory provisions of section 294 (1)(2)(3) of the Constitution and we are urged to declare the decision/ruling a nullity and set it aside without much ado as it lack constitutional validity of a ruling and therefore null and void ab-initio,
The 2nd issue for determination is whether upon reliance on the decision of EGOLUM vs. OBASANJO (1999) 7 NWLR (pt 611) the Tribunal misapprehended the Appellants’ petition by striking it out for non compliance with paragraphs 4(1) (b) – (c) of the Electoral Act 2010 as amended and section 177 A (a) (b) (c) (d) of the 1999 Constitution as amended.
Learned Counsel submitted that applying the ration decidendi of the case of Egolum vs. Obasanjo (supra), the first Appellant being a candidate at the election need not to comply with paragraphs 4(1)(b) of the First Schedule to the Electoral Act read together with section 177A of the 1999 Constitution before his locus standi to file the petition is established because such requirement are only applicable to a person who is not a candidate at the election but merely claiming to have his right to contest the election and be returned which situation was allowed by section 50(1) (a) of Degree No, 6 of 1999, but not provided for in the extant Electoral Act, as justified by the unassailable opinion of the Supreme Court in the Egulum’s case.
It is further submitted that apart from the decision above there is also the presumption created by sections 167(c) and 168 (1) of the Evidence Act, 2011 in favour of the Appellant that they have fulfilled all enabling qualification requirement to present the petition. For this submission, Learned Counsel relied on the case of Onuzulike vs. CDS Anambra State (1992) 3 NWLR (pt.233) p.791.
It is submitted for the Appellants that the Tribunal failed to advert its mind to rights of the Appellants available to them under those presumption stated above and closed its ‘eyes’ to the obvious out of clear misapplication of the decision in Egolum vs, Obasanjo (supra) in relation to the Appellants petition arising from misinterpretation and utter misapprehension of the appellants-rights and their petition leading to wrongful striking out of the petition by the tribunal which occasioned grave miscarriage of justice.
Learned counsel contended that the tribunal having failed to resolve the fundamental issues concerning the constitutional and legal rights of the appellants to present their petition one way to the other, but still proceeded to strike out the petition on that contradictory and inconsistent decision in violation of section 5(6) of the Constitution, and contrary to the Supreme Court decisions of Shodipe Vs Lions Building Ltd (1975) 12 SC 135 @ 13; Adeyemo VS. Arokopo (1988) 2 NWLR (PT.79) 703, the entire ruling is incurably vulnerably and lack the very essence of a decision. We are urged to set it aside and restore back the petition for hearing de novo.
Issue No. 3 is whether the Tribunal was right by deciding the merit of the Appellants’ petition at the interlocutory stage when evidence have not been proffered.
Learned Counsel submitted that the lower Tribunal acted without jurisdiction when it embarked on judicial leapfrogging of pre-emptive, anticipatory and conjectural adjudication of the Appellants’ petition without allowing evidence to be led or proffered on matters in respect of which issues have been identified and joined by the parties before striking out the petition on speculatory assumption and presumptions devoid of any reasoning, thereby denying the Appellants of their constitutional right to fair hearing. Learned counsel referred us to pages 1-292 which contain the Appellants petition and all the various replies of the Respondent to the petition and the petitioners’ replies thereto.
Learned Counsel referred us to page 613, lines 21-31 and page 614, lines 1 to 5 of the records of proceedings where the lower Tribunal embarked on the voyage of speculation that the number of votes scored by the Appellant as against the 1st Respondents and other Respondents cannot sustain the reliefs sought by the Appellants, thereby speculating into the future failure of the Appellants’ petition.
It is the submission of the Learned Counsel for the Appellants that the law is settled that mere averments of facts in parties’ pleading without evidence in support do not constitute the required proof of such facts, if it is not admitted by the opposing party, see the cases of Adegbite vs. Ogunfalu (1990) 4 NWLR (part 146) 278, Egbunike Vs. African Continental Bank Limited (1995) 2 SCNJ 58 @ 78.
Learned Counsel submitted that the Tribunal has no jurisdiction to prejudge and presume the failure of reliefs in a case before it and proceed to strike it out on the basis of that prejudgment and presumptions. It was therefore wrong of the Tribunal to hold that even after the nullification of the election of the 1st Respondent, the Appellant can still not be returned as the winners because of what the tribunal tagged as ‘inconsequential’ votes scored at the election.
It is the submission of the Learned Counsel that the wrong approach adopted by the lower Tribunal amounts to ‘trial before trial of the relief in the petition and thereupon came to wrong inclusion that the votes scored by the Appellants were inconsequential to the extent that when juxtaposed with the votes scored by the respective respondents the reliefs sought by the appellants cannot be sustained, thereby forecasting the failure of the petition before the actual trial like Ife Oracle or crystal gazer contrary to all known dictates of justice. See the case of Nwuche Vs. Ebeku & 2 ORS. (2004) 2 W.L.R. (Pt.192) 339 at 350 – 353, Elias v. Omo-Bare supra, Ukudano v. Keregbe (2003) F.W.L.R, (Pt.148) 1384 @ 1401-1402.
Learned Counsel opined that the Tribunal wrongly interpreted paragraphs 12(5) of the 1st Schedule to the Electoral Act, 2010 as amended by refusing to hear and determine the Respondents’ objections along with the Appellants’ petition. Learned Counsel is of the further opinion that the Tribunal was wrong to have overruled the Appellants’ submission based on consideration of paragraphs 12(5) 18(7) (d) 47(1) and 53(2) of the First Schedule to the Electoral Act 2010 as amended. See the ruling of the lower Tribunal at pages, 555 to p.563 of the records.
Learned Counsel submitted that the provisions of sections 134(2) of the Act, sections 285 (5)(6)(7) and paragraph 12(5) of the First Schedule to the Electoral Act are special Constitutional and statutory provisions which override the general provisions of paragraphs 18(7) (d), 47(1) and 53(2) (5) of the schedule to the Act, which to that extent puts the primacy of deciding issue of jurisdiction in adjudication into abeyance till the inclusion of the substantive petition. See: Martin Schroder & Co. Vs. Major & Co. Ltd (2002) FWLR (Pt.128) 1304 @ 1319, 1323.
Finally Learned Counsel submitted that the Tribunal was wrong when it dismissed the application of the appellant on the premise that the issue of jurisdiction must be determined first not withstanding the sui generic nature of Appellants’ application in relation to their petition and the above provisions of the Act and constitution. Learned counsel urged us to allow the appeal on this issue.
Issue No. 4 is whether the Tribunal was justified in striking out virtually all the paragraphs of the Appellants’ petition.
Learned Counsel began his consideration of this issue by reproducing those paragraph that were struck out by the lower Tribunal on the ground of being vague, generic, wooly and academic, i.e paragraphs 10, 11, 33, 34, 36, 37, 38, 40, 41, 43, 52, 53, 54, 55, 56, 59, 60, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 39, 47, 48, 49,50, 51, 57, 62, 63, 69, 70, 74, 76, 77, 79 and 90 of the petition.
Referring to Nuhu vs. Ogele (2004) 3 FWLR (pt.200) 44 @ 458, paragraphs F-G learned Counsel contended that the apex Court in trying to identify the criteria for determining whether or not a ground of appeal like pleadings in the trial Court or Tribunal is vague; the Supreme Court did that by taking each ground one after the other and subject them to comprehension scrutting such as: “whether they are difficult to understand” or “difficult to ascertain, what the Appellant has in mind” or “whether the purport or intent of the grounds of appeal is understood by the court”.
It is the submission of the Learned Counsel that the lower Tribunal failed to apply the above judicial parameters to appellants’ petition before adopting a sweeping generalization to tag those clear, comprehensive and unambiguous paragraphs of the petition as vague, especially when:
(a) There were no issues joined before the Tribunal that the Respondents did not understand the purports, intents and meaning of those paragraphs of the petition.
(b) There were no issues joined before the Tribunal that the Respondents were misled or prejudiced by the averments contained in those paragraphs of the petition, which prevented or disabled the Respondents from preparing and filing their reply to the petition.
(c) Each of the paragraphs was not pinpointed scrutinized and analyzed one after the other and point out the alleged obscurity, uncertainty, vagueness, unspecificity or any identifiable defects (if any, which is not conceded) in those paragraphs contrary to the approach adopted carefully by the Supreme Court, In NUHU Vs OGELE supra, before the Tribunal pre-emptorily struck out those paragraphs of the petition.
(d) There was no application for better particular or other direction before the Tribunal to enable it come to the conclusion that the alleged paragraphs of the Appellants’ petition are vague as enjoined by paragraph 17(1)(2)(3) of the First Schedule to the Electoral Act 2010 as amended.
Learned Counsel submitted that the lower Tribunal was wrong to have struck out those paragraphs of the appellants’ petition which has occasioned miscarriage of justice and we are urged to so hold and resolve this issue in favour of the Appellant.
For their part, each of the Respondents filed brief of argument, The 1st Respondents brief of argument was settled by Chief Wole Olanipekun (SAN) and it was filed on 5/3/2013. The 2nd Respondents brief of argument was prepared by Yusuf Ali SAN and filed on 5/3/2013.
Chief Adeyboyega Awomola SAN settled the brief of argument of 3rd, 4th and 5th Respondent. It was filed on 4/3/2013.
Chief Wole Olanipekun SAN also filed an application praying for an order-striking out Grounds 2, 6 and 7 of the Notice and Grounds of Appeal and issue distilled there from. The argument thereon are incorporated in the Respondents’ brief of argument. Learned senior counsel for the 1st Respondent in his argument on the preliminary objection submitted as follows:
i. The extract of the judgment of the tribunal quoted as the basis of the complaint was a decision in relation to another petition numbered EPT/OD/GOV/05/12.
He submitted that any ground of appeal which was derived or derivable from the judgment against was incompetent. He relied on Audu Vs. INEC No. 2 (2010) NWLR (Pt.1212) 456 at 490 and a host of other cases. He urged the court is limit itself to complaints, challenges and attack muted against the ruling of the lower court appealed against. He cited Ahmadu Vs FRN (2009) 13 NWLR (PT.1159) 539 @ 550.
He further contended that grounds 2, 6 and 7 of the appeal having been subsumed together and one issue having been framed out of the 3 grounds and the sole issue not being inseparable if ground 2 was shuck out, issue No 2 was liable to be struck out.
He urged the court to strike out issue No 2 as framed by the appellant as well as grounds 2, 6 and 7 of the Notice and grounds of appeal. He relied on Omo Vs. Judicial Service Commission of Delta State (2000) 12 NWLR (PT.682) 444 and Yaro v. Arewa Construction Ltd. (2007) 17 (PT.1063) 33.
On the main appeal, Learned senior counsel formulated three issues for determination namely:-
1. Whether having regard to the combined effect of Section 9(2), (3), (4), (5) and (6) of the Constitution of the Federal Republic of Nigeria (second Alteration) Act, 2010 and Section 294 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the decision of the Governorship Election Tribunal jointly signed by the chairman and the two members of the tribunal is not valid. Ground 1.
2. Whether the lower tribunal was not right in striking out paragraphs 10, 11, 33, 34, 36, 37, 38, 40, 41, 43, 52, 53, 54, 55, 56, 59 of the petition for containing general and vague averments; paragraphs 35, 65, 66, 67, 69, 78, 79 and 105 for containing generic averments; paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 39, 47, 48, 49, 50, 51, 57, 62, 63, 69, 70, 74, 76, 77, 79 and 90 of the petition for containing lecture on election process and procedure and paragraphs 35, 81 and 94 of the petition for containing serious criminal allegations against individuals who are not joined in the petition. Grounds 8, 9 & 10.
3. Whether having regard to the pleading of the Appellants and the relief sought in the petition of the Appellants, the Appellants petition was not incompetent, put differently whether the lower tribunal was not justified in striking ,out the petition. Grounds 2, 3, 4, 5, 6, 7, 10, 11, 12 and 13.
On Issue. No 1, Learned Senior Counsel submitted that neither in section 9 (2 – 6) of the (Second Alteration) Act 2010 of the 1999 Constitution nor section 294 (2 & 3) of the constitution (as amended) was the lower tribunal required to have in the record of its judgment separate opinion on individual members of the tribunal. It was a requirement for Supreme Court and Court of Appeal. He referred to Section 294 (2) of the 1999 constitution (as amended). He cited Ojo Vs. INEC (2008) 13 NWLR (Pt.1105) 577 @ 606 – 607, Saidu v. Abubakar (2008) 12 NWLR (Pt.1100) 201 @ 244
He referred to the judgment of the tribunal and submitted that it was clear that it was a joint and common opinion of the Chairman and two members of the lower tribunal.
He urged the court to resolve issue No 1 in favour of the Respondent. On issue No 2, Learned Senior Counsel for the 1st Respondent submitted that the tribunal rightly struck out paragraphs 10, 11, 33, 34, 35 – 38, 40, 41, 43, 52, – 56 and 59 for containing general and vague averments like. to most wards in the unit”,” some of the wards and units,” in many polling units and wards,” while paragraphs 35, 65 – 69, 78, 79 and 105 contained generic terms as “political office holders”, “prominent and die hard members”. He stated that the petition contained serious criminal allegations against individuals, and unnamed and unidentifiable group of persons who were not joined in the petition.
He submitted that for a petition to be valid, it must plead distinct issue or major fact which must be spelt out in the paragraphs of the petition. He referred to paragraph 4(1)(d) (2) and (7) of the First schedule to the Electoral Act 2010. He submitted further that the general and vague averments in the petition, the paragraphs which contained lecture on electoral process and paragraphs 35, 81 and 94 of the petition in which criminal allegations were made against unspecified individuals constituted clear violation of the mandatory provisions of paragraphs 4 (1) (d) and (2) of the Eledoral Act.
Learned senior counsel further contended that the entire petition was in grave violation of the provision of paragraph 4 of the First schedule to the Electoral Act and the lower tribunal justifiably struck it out. He referred to Bojong Vs. Duke (2003) 14 NWLR (PT.841) 581 @ 618 and some other cases.
Chief Olanipekun SAN, for the 1st Respondent, further contended that the decision of the lower tribunal striking out the paragraphs containing allegation of criminal offences made against individuals was consistent with settled legal principles and the principles of fair-hearing as guaranteed under Section 36 of the Constitution.
He relied on Kalu Vs. Chukwumerije (2012) 12 NWLR (PT 1315) 425 @ 459,
He urged the court to resolve issue No 2 in favour of the Respondent.
On issue No 3, learned senior counsel submitted that it was not every mistake or error of law that would lead to an appeal being allowed. He cited Pan Atlantic Shipping Vs. Renepin (1997) 3 SCNJ 88.
He submitted that there were more fundamental vices that afflicted the petition as identified by the lower Tribunal, and that the petition was incompetent. He argued that the requirement of competence of an action was first and foremost a threshold matter. He added that where a party submitted an incompetent case for the consideration of a court or tribunal, such a tribunal would lack jurisdiction. He also submitted that the reliefs claimed by the petitioner were not grantable and so the lower tribunal was right to have struck out the petition. He finally urged the court to dismiss the appeal.
The 2nd Respondent’s Counsel formulated 3 issues for determination in his brief.
The issues are:
1. “Whether the Honourable trial Tribunal was in error in the way and manner it wrote and delivered its ruling on the consolidated applications and whether any miscarriage of justice has been occasioned on any of the parties ” thereby. (Ground 1 of the Grounds of Appeal).
2. Whether the Honourable trial Tribunal was not right in holding that the reliefs sought in the petition were inconsistent and incompetent and thereby striking out the petition. (Grounds 3 & 4 of the Grounds of Appeal). 3. Whether the Honourable trial Tribunal was not right having regard to the state of the law in striking out the paragraphs of the petition that did not comply with the rules of pleadings for being general, vague and nebulous and for containing allegations of commission of crimes against named individuals who were not joined as parties to the petition. (Grounds 2, 5, 6, 7, 8, 9, 10, 11, 12, & 13 of the Grounds of Appeal).”
On issue No 1, Learned senior counsel submitted that the grouse of the Appellants could not find support under the provisions of the constitution.
Learned senior counsel referred to section 285 (3) and (4) of the 1999 constitution and section 294 of the 1999 constitution. He submitted that where the words used in a statute were clear and unambiguous, they should be given their ordinary meaning. He referred to Nwanezie vs. Idris (1993) 3 NWLR (PT.279) 1 @ 14. He stated that section 294 of the constitution expressly mentioned the Supreme Court and the court of Appeal and so those not mentioned should be deemed to have been excluded, He cited Ogboru v. Ibori (2005) 13 NWLR (Pt.941) 319.
Learned senior counsel further submitted that the ruling of the lower Tribunal was a unanimous decision and it was not necessary for separate opinions. He cited Danjive vs. Kanva (2009) 4 NWLR (Pt.1130) 13 @ 41 – 42 and other cases.
He finally urged the Court to resolve the issue against the appellants. On issue No 2, Learned Senior Counsel for the 2nd Respondent submitted that the reliefs in any judicial proceeding constituted an integral part of the claim. He relied on Marina Management Associates Inc. Vs. National Maritime Authority in Appeal No SC.270 of 7/12/2012.
He submitted that the reliefs claimed in the petition were mutually exclusive and this was deprecated by the Supreme Court in Abubakar Vs. Yar’Adua (2008) 19 NWLR (PT.1120) 1 @ 84.
Learned Senior Counsel further referred to several paragraphs of the petition and submitted that there was no connection between the pleadings and the reliefs sought and the pleadings should be deemed abandoned. He relied on Sken Consult Vs. Ukey (1981) 1 SC 6 at 27 and Macfoy Vs. VAC (1962) AC 152.
He submitted that the reasoning of the tribunal was right and unimpeachable.
Learned senior counsel added that the reliefs sought by the appellants were not related to the grounds of the petition and the facts supporting same, and that the petition of the petition of the petitioners was “at best speculated and at worst academic”, He relied on Uzodinma Vs. Udenwa (2004) 1 NWLR (pt.854) 303 and other cases.
He urged the court to resolve issue No. 2 against the Appellants.
On issue No.3 Learned Senior Counsel for the 2nd Respondent referred to several paragraphs of the petition and submitted that they were vague, generic and speculative. He stated that the averments were lacking in any form of particularity and specificity. He submitted that pleadings must clearly inform the other party of the nature of the case he was to meet, prevent the other side from being taken by surprise and tie the hand of the other part from canvassing issues and matters not formally included. He cited Agu Vs. Ekweremadu (2006) 1 NWLR (Pt.961) 255 @ 278 and some other cases.
He submitted that the averments in the pleadings of the Appellants which simply averred” “many polling unit” “most of poling unit etc ran fowl of the mandatory provision of paragraph 4(1)(d) of the provisions of the 1st Schedule of the Electoral Act and the provisions of Order 13 Rules 4(1) 5 and 6(1) of the Federal High court (civil Procedure).Rules. He relied on Inakoju Vs. Adeleke (2007) 4 NWLR (Pt.1025) 427 @ 697-698 and other cases.
He therefore urged the Court to uphold the striking out of the paragraphs of the petition under consideration. He contended further that the failure to join individuals and unknown persons against whom diverse allegations rendered the petition incompetent and that the Tribunal was right to so hold. He referred the court to the provisions of s. 137 (2) & (3) of the Electoral Act.
He finally urged the court to hold that the lower Tribunal rightly entertained and upheld the preliminary objections of the 2nd Respondent and to resolve this issue against the Appellant.
The 3rd, 4th and 5th Respondents filed joint brief of argument which was settled by Chief Awomolo SAN Learned senior counsel raised and argued preliminary objection in the brief. He stated that the objections were related to the Grounds of Appeal together with their particulars. He referred to order 6 Rule 1 of the court of Appeal Rules 2011 and submitted that a Ground of Appeal must conjunctively satisfy the provision of order 6 and must be clear, precise and not argumentative.
He referred to Iyen Vs. FRN (2010) 2 NWLR (Pt.1177) at 12-13 and some other cases. He added that grounds of appeal which were vague and argumentative were imcompetent and should be struck out. He cited Igwe Vs. Ezeanochie (2010) 2 NWLR (Pt.1192) 61 @ 81 and other cases.
He submitted that in the grounds of appeal of the appellants they simply quoted from the judgment of the Tribunal and proceeded to engage in particulars which were totally unrelated to the Grounds.
On Ground 2 Learned senior counsel submitted that the Ground of Appeal did not allege any error. He stated that there was no allegation in the Ground that the decision of Egolum vs. Obasanjo was improperly relied upon or that the fact were in applicable. On Ground 3 Learned senior counsel contended that the Ground and the particulars were incompetent, as they were vague, argumentative and speculative.
On Ground 4 of the Grounds of Appeal and its particulars Learned senior counsel argued that the particulars did not flow from the Ground of Appeal while the Ground could not fulfill itself.
On Ground 5, Learned counsel submitted that it was not supported by competent particulars. He further contended that Grounds 9 and 10 of the Grounds of Appeal with respect to particulars (e) and (a) were argumentative vague and ambiguous.
On Ground, 11 Learned senior counsel submitted that particulars (b-d) were vague and argumentative, he relied on Igwe vs. Izeanochie (supra) and other cases. He further argued that the Appellants did not formulate issue in respect of Ground 8 of the Ground of Appeal and therefore it should be deemed abandoned and struck out.
On the main appeal, Learned Senior Counsel for 3rd-5th Respondents formulated three issues for determination as follows:
1. “Whether the Tribunal violated the provisions of the Constitution when it delivered a joint Ruling signed by three of its members – Ground 1.
2. Whether the Tribunal denied the Appellants fair hearing and misapplied the decision in EGOLUM V. OBASANJO, supra, section 177 of the Constitution and paragraph a(t) (a) of the 1st Schedule to the Electoral Act, 2010 when it struck out the Petition – Grounds 2, 3, 4, 5, 6, 7 and 13.
3. Whether the Tribunal correctly held that certain paragraphs of the petition embodied vague and general averments – Grounds 9 and 12.
On Issue No. 1 Learned counsel submitted that there was nothing in section 294(1) of the constitution that compelled those who participate in a decision to express distinct opinion. He submitted that the requirement under section 294 of the constitution was only applicable to the Supreme Court and court of Appeal. He submitted that it was not permissible for any party to read into the provisions of the law terms and conditions which were not contained therein. He relied on Ladoja Vs. INEC (2007) 12 NWLR (part 1047) 119 @ 188-189.
On issue No. 2 Learned Counsel submitted that the Appellant did not make out an issue of deprivation of fair hearing as the Appellants failed to disclose a condition precedent, which is mandatory for them to produce. He cited Ohakim Vs. Agbajo (2010) 19 NWLR (Pt.1225) 172 and some other cases. Learned Senior Counsel submitted that the tribunal was right to have struck out numerous paragraphs of the petition. He added that was a day dream for the Appellant who scored less than 1% of the votes at the election to seek to be returned. He submitted that a Court of law had jurisdiction to prevent abuse of its process, He relied on Yakubu Vs. A.S.N. LTD (2O10) 2 NWLR (part 1177) 167 and some other cases.
On Issue No. 3, Learned Senior Counsel referred to the several paragraphs held by the Tribunal to be vague, general, speculative and nebulous and submitted that the lower Tribunal was right to have so held. He submitted that a basic rule of pleading was that facts should not be vague imprecise or lacking in particularity. He referred to order 13 Rule 4 (4) and (5) of the Federal High Court Rules 2009, paragraph 4(1)(d) of the First schedule to the Electoral Act 2010 (as amended) and submitted that they were mandatory provisions he relied on Basheer Vs. SAME (1992) 4 NWLR (part 236) 491 and another case.
He further submitted that the paragraphs struck out by the Tribunal were blatant in their allegations against persons named and unnamed whose alleged offensive conduct bothered on criminal. He relied on Egolum vs. Obasanjo (1999) 7 NWLR (Part 611) 335 @ 467 and in line with section 35(4) and (5) of the constitution such persons against whom the allegation were made must be afforded the opportunity to be heard. He submitted that the Electoral Act supplemented the Constitution. He cited INEC v. Izuogu (1993) 2 NWLR (part 275) 270, Ogwu Vs. Ararume (2007) 12 NWLR (part 1048) 367 @ 511 and other cases. He finally urged the court to dismiss the appeal.
In response to the preliminary objections raised by the Respondents as can be seen in the processes referred to in this judgment (supra), the Appellants filed Reply Briefs as answers to the said preliminary objections.
In reply to the objection raised by the 1st Respondent, Learned Counsel submitted that under section 294(3) of the Constitution of Federal Republic of Nigeria 1999 as amended, the opinions of the majority of the three judges that constituted the lower Tribunal cannot be determined unless each judge gives a separate judgment either concurring or dissenting with the other judge. He referred us to section 318(1) of the 1999 Constitution and section 27(1) (a) of the Interpretation Act CAP 123 Vol.8, Laws of Federation. Learned Counsel also made the point that the law is settled that a relief contained in pleadings cannot be determined whether grantable or not until same are established. Learned counsel added that it is a denial of fair hearing for the Tribunal to decide the relief of the Appellants in vacue and consequently struck out the petition on ‘that premise of speculatory and conjectural guess work without affording the appellant hearing contrary all known dictates of justice.
Replying to brief of the 3rd to 5th Respondents, Learned Counsel submitted that the misdirection in law complained of stemmed from the misapplication of the decision in Egolum vs. Obasanjo-. (supra), to the petition when grounds are read conjunctively with the particulars of misdirection (a)(f), will reveal and accentuate the error inherent in the misapplication and misapprehension of the Appellant petition in relation to Egolum Vs. Obasanjo’s case supra by the Tribunal. It is a crass misreading of Ground 2 of the Appellants Ground of Appeal to argue that the Ground did not allege the error committed by the tribunal.
On Ground three, Learned Counsel referred to the case of Nuhu vs. Ogele (supra) and submitted frat the grounds are not vague grounds of appeal.
On ground No. 4 Learned Counsel made the point that the Appellants should explain or argue their ground of appeal is misconceived. It is settled law that grounds of appeal are only explained or argued in their brief of argument and not in the notice of appeal containing the grounds of appeal.
Learned counsel submitted that Issues 2, 3 and 4 are competent and all the cases cited by the Respondent are not relevant and should be discountenanced. Learned counsel added that Ground 8 was never abandoned, it was owing to oversight at numbering the grounds of appeal that accounted for omission of including ground 8 in the list of grounds from which ‘issue five’ was mistakenly numbered “issue four” whereas it should be numbered “issue five” in paragraph 8.0 at page 20 of the Appellants brief of argument while paragraph 7.0 of page 16 of the Appellants’ Brief which was mistakenly omitted to be numbered as “issue four” is hereby humbly urged to be so numbered accordingly.
I have carefully and meticulously read and examined the processes filed by the counsel for the parties in this appeal. I have also considered all the submissions of Learned counsel as well as the authorities, both, case law and statutory referred to us by the Learned counsel, my first port of call is the preliminary objections raised by the parties. Let me begin with ones raised by counsel to the 1st respondent, Chief Olanipekun, SAN who filed a motion seeking for the striking out of Grounds 2, 6 and 7 of the Notice and Grounds of Appeal and issue distilled therefrom. His main contention is that the statement of the lower Tribunal forming the basis of Ground 3.2 of the Appellants’ Notice of Appeal was made in relation to EPT/OD/GOV/01/13 the subject matter of Appeal No.CA/AK/EPT/GOV/03/13 also pending before this court.
It is noteworthy that the appellants right from the onset have indicated in their Notice of Appeal at pages 618 – 619 of the records that they are appealing against the decision of the Tribunal where unfavourable findings and holdings were made against them, and other findings and holdings. A hard look at the records of the lower Tribunal would reveal the fact that Ground numbered 3.2 was part of the fundamental holdings of the Tribunal relied upon to strike out the appellants’ partition which unfavourably and adversely affected the appellants.
Learned senior counsel is wrong to have argued that the holding affected or was related to petition numbered EPT/OD/GOV/01/12 alone, when the lower court Tribunal did not specify that its decision affected only one petition and did not affect other petitions and am of the view that Grounds 3.2 of the Appellant’ Notice of Appeal arose from the decision of the lower tribunal-which unfavourably affected the appellant and related to the appellant’ petition EPT/OD/GOV/05/12. The said Ground of Appeal is therefore competent and Issue 2 distilled therefrom is also competent together with other Grounds (6 and 7) subsumed therein. The preliminary objection seeking for the striking out of Grounds 3.2, 3.6 and 3.7 and Issue 2 distilled from the said grounds lacks merit and same is accordingly dismissed.
Learned Counsel for the 2nd Respondents can be gleaned from the records of the lower Tribunal did not file Notice of Preliminary Objection to the competence of the appeal or any of the processed filed by the appellants. Surprisingly, Learned Counsel for the appellants in his Appellants’ Reply Brief gave Notice of Preliminary Objection contending that at the hearing of the appeal, the court would be urged to strike out the 2nd Respondents’ Brief for: being time barred, statute barred and therefore incompetent.
Learned Counsel contended that the appellants’ brief was served on the 2nd respondent on the 28th February 2013 while the 2nd respondent filed its Respondents’ Brief on the 5th March, 2013 contrary to paragraph 12 of the Practice Directions which enjoined the respondent to file his brief of argument within five days after being served with the appellants’ brief.
It is instructive to point out, that on the 19th of March whilst adopting his brief of argument, Learned Counsel argued that it was the 1st respondent not the 2nd respondent who filed the brief out of time. Be that as to may, the brief of argument in question cannot be said to have been filed out of time. This is so, because, by his own showing the 2nd respondent was served with the brief on the 28th February 2013 and the respondents’ brief was by his own account served on the appellant on the 5th of March, 2013.
From the above analysis, one can see clearly that the Respondents’ Brief was not filed outside the five days prescribed by paragraph 12 of the Practice Directions and I so hold.
Learned Counsel for the 2nd to the 5th respondents filed a Notice of Preliminary Objection on the grounds which will be treated anon.
On the 1st Ground of Preliminary Objection, the misdirection in law complained of emanated from the misapplication of the decision in Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 423 in relation to the petition under consideration. The Preliminary objection is unmeritorious in view of the fact that the appellant have a duty to complain about the use of the said decision in Ground 2 and then demonstrate the extent of the error which have been condensed as particulars.
On Ground 3, the mere fact that the word “when” is used does not make the ground argumentative or vague. The word “when” is used to join the ground with the particulars. A cursory look at the ground as couched will leave no one in any doubt that it is not argumentative. The other grounds being objected to are not argumentative or vague. They are competent and are not argumentative nor are they vague. Consequently the preliminary objection raised by the 3d respondent is unmeritorious and same is therefore dismissed. Lest I forget, Ground 8 of the Grounds of Appeal as explained by the appellant’ counsel is not abandoned the mistake came about from the numbering of the issues formulated by the appellant. Issue 4 should have been listed as Issue No. 5 and that same was distilled from the grounds stated therein including Ground 8. The request of the Learned counsel to correct the mistake in the numbering is so granted and Issue 4 will now read Issue 5.
Now, having dealt with the preliminary objections raised by the respondents, I will proceed to consider the main appeal in the light of the issues formulated by parties. In doing so, I will adopt the issues formulated by the appellants as the issues calling for determination in this appeal, after all the appeal is theirs.
The first issue formulated by the appellants as earlier formulated by the appellants as earlier reproduced in the judgment is whether the decision of the lower Tribunal was a nullity having not complied with the mandatory provisions of Section 294 of the Constitution of the Federal Republic of Nigeria as amended. This issue is said to have been distilled from Ground 1. Learned Counsel for the appellants submitted that compliance with the provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria as amended is mandatory and failure by the Tribunal to so comply has rendered its decision a nullity.
In resolving this issue, my first port of call is Section 294(2) of the said Constitution heavily relied by the Learned Counsel and it provides thus:
“294(2) Each Justice of the Supreme Court of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justice, who delivers a written opinion.”
Learned Counsel for the appellant interpreting the above provision copiously submitted that a decision of a court consisting more than one Judge cannot be determined or ascertained as required by the said Section unless each Judge expresses and delivers in writing his separate opinion either concurring or dissenting as the case may be.
It is appropriate at this stage to pause a little and state that the provisions of the Constitution having relied by the Learned Counsel for the appellants (294) (2) are very clear and unambiguous and no aid is required for their interpretation. The requirement of individual Judge giving separate judgment in a decision is only applicable to the Court of Appeal and the Supreme Court as clearly stated in the said provisions of the Constitution reproduced (supra). See: Ojo vs. INEC (2008) and Saidu Vs. Abubakar (2008) 12 NWLR (Pt.1100) 201 @ 244)
Undoubtedly, the Governorship Tribunal is neither Supreme Court nor Court of Appeal. This being the case, it is my considered view that there is no requirement of a separate written opinion by individual member in respect of other could or tribunal. I am of the further view that the judgment or ruling of such a court or tribunal is a common or joint opinion of the court or tribunal except where any of the Judges gives a dissenting opinion. See: Ojo Vs. INEC (supra).A cursory look at the Ruling of the tribunal contained in pages 531 – 617 of the record clearly reveals that the Ruling is a joint and common opinion of the chairman and two members of the lower Tribunal and that same (ruling) is duly signed by the chairman and the two other members of the Tribunal.
In the light of the foregoings, I am of the considered view that the Ruling of the lower Tribunal cannot be rendered invalid, null and void simply because other members of the Tribunal did not write their separate decision. This issue is therefore resolved in favour of the respondent and against appellants.
The 2nd issue for determination is whether upon reliance on the decision of Egolum Vs. Obasanjo (1999) 7 NWLR (Pt.611) the Tribunal misapprehended the appellant petition by striking it out for non compliance with paragraphs 4(1)(b) – (c) of the Electoral Act 2010 as amended and Section 177A (a)(b)(c)(d) of the 1999 constitution as amended.
Learned Counsel for the appellants submitted that the appellant being a candidate in the election need not comply with the paragraphs 4(1)(b) of the First Schedule to the Electoral before his locus standi to file a petition is established. He also referred us to Section 177A of 1999 Constitution of the Federal Republic of Nigeria to buttress his submission on this point.
Let me begin my consideration of this issue by reproducing paragraph 4(1) (b) of the First Schedule to the Electoral Act, 2010 as amended and it reads thus:
“4(1)(b) An election petition under this Act shall:-
(b) specify the right of the petitioner to present election petition.”
It is instructive to state at this juncture that for a person to file an election petition; his right to do that must be specified. Section 177(A) constitution of the Federal Republic of Nigeria makes a similar provision pertaining to who is eligible to file a petition in an election matter.
Leaning on the provisions of Section 177(A), paragraph 4(1)(b)(c) and the case of Egolum vs. Obasanjo (supra) the learned trial Tribunal struck out the petition of the appellant for his failure to specify his right to file an election petition. The question that is begging for an answer is, was the trial Tribunal right in striking out the appellants’ petition who was a candidate at the election in question?
To answer this question, needless to say, recourse had to be made to the provision of the ‘law under reference and the case of Egolum v. Obasanjo (supra). I have already set out the provision of paragraph 4(1)(b) of the Electoral Act, 2010 as amended. Let me not be repetitive at this stage.
In Egolum Vs. Obasanjo (supra) General Obasanjo who was a candidate at the presidential election held on 27th February, 1999 was declared winner of election having scored 18,739,154 votes against his closes opponent, Chief Samuel Oluyemi Falae who scored 11,110,287 votes. Curiously enough, Chief Chuba Egolum who was not a candidate at the election thereupon presented election petition while relying on Section 50(1) (a) of the Presidential Election (Basic Constitutional and Transactional Provisions) Decree No. 6 of 1999 which provided that: Section 50(1). An election may be presented by one or more of the following persons. (A) A person claiming to have had a right to contest or be returned at an election or (b) A candidate at the election.In the election petition filed by Egolum he merely stated that:
“Your petitioner CHIEF CHUBA EGOLUM is a person who had a right to contest at the above election” and did not specify his right as required by paragraphs 5 of the Fourth Schedule to the Decree No. 6 of 1999, which are ipsissima verba with paragraphs 4(1) (a) – (d) of the First Schedule to the Electoral Act 2010 as amended.”
The apex court thereupon held that paragraph one of the petition was insufficient to establish his locus standi without specifying how he acquired the right to contest as required by Section 2 of the Decree.
Belgore JSC (as he then was) in his concurring judgment made a fundamental distinction between a petitioner who was not a candidate at the election but only claimed to have had right to contest the election who must specify his qualification to contest the election within the meaning of section 2 of the Decree which is in pari materia with section 177A of the 1999 constitution, and must go further to specify that requirement as required by paragraphs 5(1) (b) of the Decree which is equally in pari materia with paragraphs 4(1) (b) of the First schedule to the extant Electoral Act 2010 on the one hand and a candidate at the election who was presumed to have fulfilled all the qualification requirements, set out in section 2 of the Decree.
The learned emeritus Justice of the apex court went on to clarify thus:
“in the case of the present appellant who was not a candidate he must specify his right to file the petition as provided in sub paragraph (b) of paragraph 5(1) aforementioned. Mere averment that the petitioner has a right to contest the election without more is not enough, he must specify the right. For a person who actually contested the election, the presumption will be in his favour that he has all the qualifications set out in section 2 of the Decree and the Independent National Electoral Commission has cleared him to contest, in that case he has filled all the forms necessary for a prospective candidate in Schedule 5 to the Decree. Other person petitioning other than a candidate shall specify his right b present a petition.”
The point I am struggling to make is this, the case of an appellant who was a candidate at the election can be clearly distinguished with the case of Egolum vs. Obasanjo (supra). Chief Chuba Egolum was not a candidate and had to satisfy the court his right to file an election petition. The appellant being a candidate has the right to file an election petition. All the requirements of the law must have been fulfilled before the appellant was allowed to contest the election. I am therefore of the view that the trial Tribunal was wrong to have struck out the name of the appellant on the ground that he had not specified his right to file the petition in question. This issue is therefore resolved in favour of the appellant and against the respondent.
Issue No.3 therefore resolved in favour of the appellant and against the respondents. Issue No. 3 is whether the Tribunal-was right by deciding the merit of the appellants’ petition at the interlocutory stage when evidence have not been led or proffered by the parties.
Learned Counsel for the appellants submitted that it is settled principle of law of evidence that a court or Tribunal of justice cannot rely on pleadings of parties before it and decide issues of facts and law in which parties have joined issues, without evidence being led or proffered by the said contending parties before it. In support of this submission Learned Counsel relied on the case of Alhaji Mohammed Dikko Yusuf & Anr. Vs. Chief Olusegun Obasanjo & 2 Ors.
Learned Counsel for the respondent argued per contra and held the view that it is from the petitioner’s case as made out in his pleading and the relief being sought that the competence of an e-lection petition is determined where a petitioner’s case is such that the relief sought is not grantable by a court tribunal, such action is incompetent and the tribunal or court will be bereft of the jurisdiction to entertain such a case.
Now, in the case of Alhaji Mohammed Diko & Anr, Vs. Chief Olusegun Obasanjo & 2 Ors. (2004) 15 NSC QR 447 @ 534 Where in a similar situation like in the instant appeal objections were raised to the petitioners’ petition that some reliefs in the petition be struck out. The Supreme Court consequently refined the application and the erudite emeritus Justices of the apex court Tobi, JSC held that:
In my view, it will be premature to strike out paragraph 18, 19 and 20 of the amended petition. The averment therein have to do will evidence of the petition. It will be injustice to the petitioners to stop them at this stage from leading evidence in vindication of the paragraphs. That apart, it is trite law that the merits of a matter cannot be taken at interlocutory stage because that will fu tantamount to hearing the matter when it is not ripe for hearing. Again that will be injustice to the petitioner and I cannot be a party to the injustice.”
Again, in the case of Ivienaohor Vs. Bazuaye (1999) 6 SCNJ 234, where the Supreme Court per UWAIFO& JSC at pages 243 – 244, caused that “…speculation is a mere variant of imaginative guesswork which even where it appears plausible should never be allowed by a Court of law to fill any hiatus in the evidence before it” In a similar vein, UDO UDOMA JSC, a jurist of immortal repute, earlier decried speculatory adjudication in the case of Elias Vs. Omo-Bare (1982) 1 ALL NLR (pt.1) 70 @ 81 admonished that: “the appellant woefully held to realize that judges do not act like the oracle at Ife, which is often engaged in crystal gazing and thereafur would proclaim a new Oba in succession to a deceased Oba. Judges cannot perform miracle in the handling of civil claim…”
In the light of the foregoings, I am of the considered view that the trial Tribunal was wrong to have struck out the petition of the appellants at the stage it did without allowing them to lead evidence in support of it. The Tribunal has no jurisdiction to prejudge and presume the failure of reliefs in a case before it and proceed to strike it out on the basis of that prejudgment and presumptions. This issue is therefore resolved in favour of the appellant and against the respondents.
The next issue for determination is Issue No. 4 which is whether the Tribunal correctly interpreted paragraphs 12(5) of the First Schedule to the Election Act, 2010 as amended by refusing to hear and determine the respondents’ preliminary objection along with appellants’ petition. This issue is distilled from Grounds 10 and 11 of the Grounds of Appeal.
As can be gleaned from the records of the lower Tribunal, the appellants filed an application that the respondents preliminary objection raised in their replies to the petition and subsequently raised in their various motions be taken and determined along with the substantive petition was dismissed by the lower Tribunal based on consideration of paragraphs 12(5), 18(7)(d), 47(1) and 53(2) of the First Schedule to the Electoral Act as amended. See the Ruling of the lower Tribunal at pages 555 to 563 of the records.
The lower Tribunal, Learned Counsel submitted further held that the issue of jurisdiction must first be determined before deciding the merit of the petition and thereupon dismissed the application. It is humbly submitted that the lower Tribunal was wrong in its interpretation given to paragraph 12(5) of the schedule without to section 134(2) of the Electoral Act 2010 as amended and Section 285(5) (6) (7) (8) of the 1999 Constitution so as to know the mischief and absurdity in the earlier statute sought to be avoided or prevented in enacting the new paragraph 12(5), Section 134(2), of the Electoral Act 2010 and Sections 285(5) (6) (7) and (8) of the 1999 Constitution.
Now, a cursory look at the proceeding of the lower court clearly indicates that Learned Counsel who represented the parties at the Tribunal had consented to the procedure adopted by the Learned Trial Tribunal of hearing of the applications first before delving into the hearing of the petition proper.
In the proceeding of 22nd January, 2013, Learned Senior Counsel Chief Akin Olujimi, SAN said as follows:
“I confirm one that the report given by my brother silk is up to a point a fair representation of what we agreed. We agree on non-contentious motions. We also agree to consolidation of all the contentious motions to be argued together for a ruling. The applications filed in petition No. EPT/OD/GOV/01/2012 should also be taken together. We have two applications in petition No. EPT/OD/GOV/02/2012.”
The question that must be asked and answered is having consented to this by all the counsel, the counsel of the appellants inclusive to hear all the applications before proceeding with the hearing of the substantive petition, can this issue of hearing of all applications before hearing of the substantive petition contrary to paragraph 12(5) of the First Schedule to the Electoral Act be raised at this stage. This question is answered in the negative. I am of the view that having consented to the procedure adopted by the trial Tribunal, the appellants’ counsel is estopped from raising this issue again.
That aside, the issue of hearing all the applications before the substantive petition was never raised at the Tribunal. I am of the opinion that having not raised it at the Tribunal, the appellants cannot raise it at this stage without the leave of this court sought and obtained. For the foregoing reasons, this issue is resolved in favour of the respondent and against the appellants.
Last but not the least issue for determination is Issue No. 5 which reads as follows:
“Whether the Tribunal was justified in striking out virtually all the paragraphs of the appellants’ petition.”
Now, the law in respect of pleadings is settled beyond per adventure. Pleadings must clearly inform the other party of the nature of the case he is to meet, prevent the other side from being taken by surprise, to tie the hand of the other party from canvassing issues and matters not formally included.
See: Ogu Vs. Ekweremadu (2006) 1 NWLR (part 961) 255 @ p.278; Yar-Adua Vs. Barde (1992) 3 NWLR (pt.231) p.638.’As a very obvious point, the fundamentality and centrality of pleadings cannot be over emphasised. Indeed, a party must swim or sink by his pleadings, he is bound by it. The apex court consistently restated this position in a number of cases. See: Igbikokpe Vs. Ogedengbe (2001) 18 NWLR (pt.745) 1 @ 18 paras C – D, per Kalgo JSC.
This position has been further emphasised that pleadings should be sufficient and comprehensive, otherwise no court should countenance it. The apex court also underscored this principle in Akaniwo vs. Nsirim (2008) WRN (vol. 20) 99 @ 109 where it was held:
“The law expects that pleadings should be sufficient, comprehensive and accurate, suffice it to ay that all parties are bound by their pleadings.”Having stated the law and all that, I will now proceed to examine the struck out paragraphs with a view to finding out whether they were rightly struck out.
A hard look at the decision of the Tribunal, one will clearly see that the Tribunal rightly struck out paragraphs 10, 11, 33, 34, 36, 37, 38, 40, 41, 43, 52, 54, 55, 56, 59 for containing general vague averments like “to most wards in the units”, “some of the wards and units-, .in many polling units and wards.”; paragraphs 35, 65, 66, 67, 69, 78, 79 and 105 for containing generic terms as “political officer holders”, “prominent and die hard members”; paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 22, 23, 24, 25, 26, 27, 28, 29, 30, 39, 47, 48, 49, 50, 51, 57, 62, 63, 69, 70, 74, 76, 77, 79 and 90 of the petition for containing lecture on election process and procedure and; paragraphs 35, 81 and 94 of the petition for containing , serious criminal allegations against individuals and unnamed and unidentifiable group of persons who are not joined in the petition. In the respectful submission of the respondent, the lower tribunal acted within the law in striking out the said paragraphs of the petition and the entire petition for the following reasons.
This issue is resolved in favour of the respondents and against the appellants.
In conclusion, in the right of ail that has been said, this appear is allowed in part. The decision of the Tribunal striking out the petition of the appellant is set aside and the petition is hereby restored for hearing. Similarly it was wrong for the Tribunal to decide the merit of the appellants’ petition at the interlocutory stage when evidence have not been led or proffered by the parties.
I make no order as to costs; parties shall bear their individual costs of prosecuting/defending the appeal,
ALI ABUBAKAR B. GUMEL, J.C.A.: I agree.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.: I agree.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.
Appearances
Mr. Segun OgodoFor Appellant
AND
Chief Wole Olanipekun SAN, Rickey Tafa SAN, John Baiyeshea SAN, Eyitayo Jegede SAN, A. J. Owonikoko SAN, A. Olatubora, E. A. Ibrahim Effiong, Kunle Ijalana, Ayo Adesanmi, Yusuf Dikko for the 1st Respondent
Mallam Yusuf O. Ali, SAN, Mr. A. O. Adelodun, K. K. Eleja, R. O. Balogun, A. O. Abdul-Kadiri, S. A. Abdullahi, Taofeek Alubarika – for the 2nd Respondent
Dr. O. Ipeazu, SAN, Ahmed Raji, SAN, O. O. Uzzi, Wale Balogun, Chidi Amaeze, Olajide Kumuyi – for 3rd – 5th Respondents.For Respondent
