SENATOR (DR.) CHRIS NWABUEZE NGIGE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2014)LCN/7132(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/E/EPT/02/2014
RATIO
APPEAL: WHETHER AN ISSUE FOR DETERMINATION IN AN APPEAL MUST DERIVE FROM THE GROUNDS OF APPEAL
It is now settled law that an issue for determination in an appeal must derive from at least one ground of the appeal and an issue not derived from any ground of the appeal is incompetent. See Magit vs University of Agriculture Makurdi and Others (Supra), Ayinde vs Adigun (Supra) and Momodu and Others vs Momoh and Another (1991) 2 SC 1. The arguments become equally incompetent because there is no longer any competent issue on the basis of which the arguments can be validly considered. Momodu and Others vs Momoh and Another (Supra), Adejumo vs Ayantegbe (1989) 3 NWLR (Pt. 110) 417 at 430 and Onifade vs Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157 referred to by the Supreme Court in holding as above. Per EMMANUEL AKOMAYE AGIM, J.C.A.
WHETHER A PREVIOUS JUDGMENT CAN CONSTITUTE A BASIS FOR A PLEA OF RES JUDICATA IN PROCEEDINGS
It is trite law that a previous judgment can only constitute a valid basis for a successful plea of res judicata in a proceedings, if the parties, subject matter, issues or questions are the same in the two cases. If one or two of these conditions do not exist, then the judgment cannot found the plea of res judicata. See the decisions of the Supreme Court in OGBOGU & ORS V. NDIRIBE & ORS (1992)6 SCNJ 301 AND AJUWON & ORS V. ADEOTI (1990)3 SC (PT 11) 76. Per EMMANUEL AKOMAYE AGIM, J.C.A.
WHETHER THE NATIONAL ASSEMBLY CAN LEGISLATE CONTRARY TO THE PROVISION OF THE CONSTITUTION
It is settled law that where the Constitution has covered the field by providing for any subject matter, the provision of the Constitution on that subject matter is the overriding authoritative statement of the law on the subject matter. The National Assembly which is bound by the Constitution cannot legislate contrary to the provision of the Constitution. See INEC & ANOR V. MUSA & ORS (2003) 1 SC (PT.1) 106 where the Supreme Court per Ayoola, JSC held “Where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The constitution would not have ‘covered the field’ where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, Section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorize INEC to do so, unless the Constitution itself has so permitted.”
See also OKOCHA & ANOR V. INEC & ORS (2010) LPELR 4718.
Therefore any law, whether an Act of the National Assembly or Law of a House of Assembly, any Rules of Court like the First Schedule to the Electoral Act or even case law that conflicts with the Constitution is to the extent of the inconsistency void and of no effect. Paragraph 27(1) of the First Schedule to the Electoral Act 2010, to the extent that it provides that all interlocutory questions and matters may be heard and disposed of by the Chairman of the Tribunal or the presiding Justice of the Court who shall have control over the proceedings as a judge in the Federal High Court, clearly alters the quorum of the Tribunal as prescribed by S. 285(4) of the Constitution and therefore derogates from it. It is in direct conflict with the provision of S. 285(4). In OBASANJO V. YUSUF (2004) 9 NWLR (PT 877) 144 AT 183 the Supreme Court held that “it is admitted that the Constitution being the supreme law of the country, is not subject to the Electoral Act or any law at all rather, it is the Act that is made subject to the Constitution. The Constitution is only subject to itself.” Per EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. SENATOR (DR.) CHRIS NWABUEZE NGIGE, OON
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER (REC).
INEC ANAMBRA STATE
3. CHIEF WILLIE MADUABUCHI OBIANO
4. ALL PROGRESSIVE GRAND ALLIANCE (APGA) Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): In the October 2013 general election to the office of Governor of Anambra State held in Anambra State, the 3rd respondent who was the 4th respondent’s candidate in that election was declared the candidate with the highest number of votes cast at the election and then declared elected and returned.
By an election petition No. EPT/GOV/AN/02/2014 dated and filed on 20-12-2013, the appellants herein as petitioners questioned the election and return of the 3rd respondent. Upon being served with the petition, the respondents filed their respective replies to the petition.
In the 1st and 2nd respondents’ reply to the petition, it is stated that-
a. “1st and 2nd respondents shall pray the Tribunal at the pre-hearing conference, to strike out the 5th respondent from the petition on the ground that the 5th respondent is not a respondent within the contemplation of the Electoral Act, 2010 (As Amended), (hereinafter referred to as the Electoral Act).
b. To strike out the following paragraphs of the petition, viz-
(i) Paragraph 14(i)(ii)(iii), 15 (A)(1) on the ground that the facts pleaded are pre-election matters.
(ii) Paragraph 14(E),(aa), (ab), (ac), (ad), (ae), (af), (ag), (ah), (ai), (aj), and 23 on the grounds that-
(a) The facts pleaded are pre-election matters which are outside the jurisdiction of the Election Tribunal.
(b) The High Court of Anambra State in OT/140/2013: Oli v. Chief Obiano & Ors, which dealt with the issue of qualification of the 3rd respondent by reason of the alleged multiple registration determined that the 3rd respondent was qualified to contest for the office of the Governor of Anambra State.
(iii) Paragraph 15 (A)(v), (B)(i), and (C)(i) & (ii) of the petition is imprecise, and vague as the polling units affected by the alleged anomalies were not mentioned.
(iv) Paragraph 17(15)(i), (ii), (iii), (iv), (v) (a) of the Petition constitute pre-election matters not related to the election and grounds of the Petition.
(v) Paragraph 18(vi) and (vii) of the Petition on the ground that they are imprecise, nebulous and vague.
(vi) Paragraph 21(A)(5) of the Petition for the reason that the paragraph complained against “polling unit 008″ which was not tied to any ward.”
In the 3rd respondent’s reply to the Petition, it is stated thus- “TAKE NOTICE that at the pre-hearing conference, the 3rd respondent shall pray the Tribunal as follows:
1.01 (i)To strike out the 5th respondent from the Petition on the grounds that-
(a) There is no allegation in the grounds for the Petition made against the 5th respondent in the Petition, as the only pleadings under which allegation was made against the 5th respondent was under the allegation of corrupt practices by the 3rd and 4th respondents.
(b) The 5th respondent does not qualify as a respondent within the ambit of the Electoral Act, 2010 (as amended).
(ii) To strike out the attachments set out as schedules 1, 2 and 3 on the ground that they are not authenticated and do not form part of the Petition.
To strike out the following paragraphs of the Petition, namely-
1.02 (i) Paragraph 14(i)(ii)(iii), 15(A)(1) of the Petition as they are pre-election matters.
1.03 Paragraphs 14(E), (aa), (ab), (ac), (ad), (ae), (af), (ag), (ah), (ai), (aj) and 23 of the Petition on the grounds that-
(i) The facts pleaded are pre-election matters which are outside the jurisdiction of the Election Tribunal.
(ii) By the subsisting judgment of the High Court of Anambra State in OT/140/2013: OLI V. CHIEF OBIANO & ORS, the issue of qualification or otherwise of the 3rd respondent on account of the alleged multiple registration has been determined by a Court of competent jurisdiction.
(iii) The issue of alleged multiple registration is a criminal matter over which the conviction of the 3rd respondent has not been secured.
1.04 Paragraph 15(A)(v), (B)(i), and (C)(i) & (ii) of the Petition are imprecise, generic and vague in that the polling units affected by the alleged anomalies were not mentioned.
1.05 Paragraph 17(15)(i), (ii), (iii), (iv), (v)(a) of the Petition are pre-election matters which are unrelated to the election and grounds for presenting the Petition.
1.06 Paragraph 18(vi) and (vii) of the Petition are nebulous.
1.07 Paragraph 21(A)(5), as the initial paragraph complained against “polling unit” without identifying a particular Ward. Further, there are two places shown as Ward XI with distinct complaint and it is impossible to precisely respond to any of the allegations.
1.08 Striking out all the paragraphs/allegations of criminality against APGA supporters and thugs, the alleged individuals not having been mentioned or parties to the Petition, namely;
(i) Paragraph 21(A) (1), (2), (3), (4), (6) and (7);
(ii) Paragraph 21(B) (1), (3), (4), (6);
(iii) Paragraph 21(C)(2), (3)(i), (ii), (iv), (v), (vi) and (vii) (4), (5), (6) and (7).
1.09 Striking out paragraph 21(A)(2) of the Petition on the ground that Mrs. Ngozi Okoye said to be Commissioner for finance was not made a party to the Petition.
1.10 Striking out paragraph 21(B)(1) of the Petition on the ground that Chief Victor Umeh and his alleged team of policemen were not made parties to the Petition.
1.11 Striking out paragraph 21(C) (3) and (iv) (v) of the Petition on the ground that Hon. Chuma Nzeribe who was alleged to have hijacked the election and engaged in illegal thumb printing of ballot papers was not made a party to the Petition.
1.12 Striking out paragraph 21(c)(3)(iii) of the Petition on the ground that Chief Aloy Egwuatu said to be a “former Commissioner of Science and Technology in the current administration of Governor Peter Obi” was not made a party in the Petition.
1.13 Paragraph 21 (c) (3) (vi) of the Petition on the ground that Chief Emeka Udezumigbo said to be a PDP councillorship aspirant in Ihite Ward 4 was not made a party to the Petition.”
In the 4th respondent’s reply to the Petition it is stated that-
A. The 4th respondent shall as a preliminary point of law contend and shall pray the Tribunal at the pre-hearing conference, to
(i) Strike out the 5th respondent from the Petition on the ground that the 5th respondent is not a respondent within the contemplation of the Electoral Act, 2010 (As Amended), (hereinafter referred to as the Electoral Act).
(ii) The reliefs claimed are inconsistent nor in the alternative.
(iii) The Petitioners have no locus standi to question the sponsorship and registration particulars of the 4th respondent’s candidate with the 1st respondent in an election petition.
B. To strike out the following paragraphs of the Petition, viz-
(i) Paragraph 14(i)(ii)(iii), 15 (A)(1) on the ground that the facts pleaded are pre-election matters.
(ii) Paragraph 14(E), (aa), (ab), (ac), (ad), (ae), (af), (ag), (ah), (ai), (aj), and 23 on the grounds that-
(a) The facts pleaded are pre-election matters which are outside the jurisdiction of the Election Tribunal.
(b) The High Court of Anambra State in OT/140/2013: OLI V. CHIEF OBIANO & ORS, which dealt with the issue of qualification of the 3rd respondent by reason of the alleged multiple registration determined that the 3rd respondent was qualified to contest for the office of the Governor of Anambra State.
(iii) Paragraph 15(A)(v), (B)(i), and (C)(i) & (ii) of the Petition is imprecise, and vague as the polling units affected by the alleged anomalies were not mentioned.
(iv) Paragraph 17(15)(i), (iii), (iv), (v), (a) of the Petition constitute pre-election matters not related to the election and grounds of the Petition.
(v) Paragraph 18(vi) and (vii) of the petition on the ground that they are imprecise, nebulous and vague.
(vi) Paragraph 21(A)(5) of the petition for the reason that the paragraph complained against “polling unit 008″ which was not tied to any Ward.”
By the notice of withdrawal dated 20-1-2014 and filed on 22-1-2014, the appellants withdrew their petition against the 5th respondent, Advanced Congress for Democrats.
By a motion on notice dated 20-1-2014 and filed on 22-1-2014, the appellants applied for- “An Order of the Tribunal directing that all preliminary points of law or objections and arguments thereof by the respondents challenging the competence of the petition or any part thereof or to the petitioners’ replies or any part thereof taken along with the final addresses of parties herein at the conclusion of hearing of the petition.”
By a motion on notice dated and filed on 27-1-2014, the 1st and 2nd respondents applied for –
1. An order of the Honourable Tribunal striking out paragraph 14(i)(ii)(iii), 15(A)(1) of the petition under the Caption ‘Facts in support of the Grounds upon which the petition has been brought’ as being incompetent.
2. An order of the Honourable Tribunal striking out paragraph 14(E), (aa), (ab), (ac), (ad), (ae), (af), (ag), (ah), (ai) (aj) and 23 under the caption ‘The facts in support of the Grounds of the petition under the caption “multiple Registrants” as they are pre-election matters.
3. An order of the Honourable Tribunal striking out paragraphs 15A (v) at page 15, B(i), C(i) & (ii) at page 16 and para 18(vi) & (vii) at page 23 of the petition for being vague, imprecise and generic.
4. An order of the Honourable Tribunal striking out paragraph 17 (15) (i), (ii),(iii),(iv),(v),(a) at pages 19-19 of the petition as they are pre-election matters which are unrelated to the election and grounds for presenting the petition
5. An Order of the Honourable Tribunal striking out paragraph 21(A) (15) at page 31 of the petition for being vague, imprecise and nebulous.
6. For such Order or other Orders as this Honourable Tribunal may deem fit to make in the circumstances.”
By a motion on notice dated and filed on 27-1-2014, the 3rd respondent applied for-
1.”FOR AN ORDER PURSUANT to Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraphs 16(1) and 47 of the first Schedule to the Electoral Act 2010 (as amended) striking out paragraphs 3(ii), (iii), (iv), (v), (viii), (ix), (x), 4(i), (ii), (iii), (iv), (v), (vi), (vii), and 5(i) & (iii) of the Petitioners Reply to the 3rd respondent’s reply to the petition.
2. FOR AN ORDER PURSUANT to Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraphs 16(1) and 47 of the First Schedule to the Electoral Act 2010 (as amended) striking out paragraphs 7(ii), (iii), (iv), (v), (viii), (ix), (x), 8(i), (ii), (iv), (v), (vi), (vii), and 9(i) & (iii) of the Additional Witness Statement on Oath of Chibuzor Obiakor filed on 18th January, 2014.
3. FOR AN ORDER PURSUANT to Sections 6(6)(b) and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and paragraphs 16(1) and 47 of the First Schedule to the Electoral Act 2010 (as amended) striking out paragraphs 7, 8, 9, 10, 11, 12, 13, 15, 16, 17 and 18 of the Petitioners Additional Witness Statement of Bona Oraekwe filed on 18th January, 2014.”
By a motion on notice dated 29-1-2014 and filed on 30-1-2014, the 4th respondent applied for-
(A) “Striking out the name of the 5th respondent in the petition on the ground that the 5th respondent is not a respondent within the contemplation of the Electoral Act, 2010 (as Amended), particularly Section 137 (hereinafter referred to as the Electoral Act).
(B) Striking out the following paragraphs of the petition viz-
(i) Paragraphs 14(i)(ii)(iii), (B), (C), (D),(E), 15(A)(1) on the ground that the facts pleaded are pre-election matters.
(ii) Paragraph 14(E), (aa), (ab), (ac), (ad), (ae), (af), (ag), (ah), (ai), (aj), and 23 on the grounds that-
(a) The facts pleaded are pre-election matters which are outside the jurisdiction of the Election Tribunal.
(b) The High Court of Anambra State in OT/140/2013: Oli v. Chief Obiano & Ors, which dealt with the issue of qualification of the 3rd respondent by reason of the alleged multiple registration determined that the 3rd respondent was qualified to contest for the office of the Governor of Anambra State.
(C) Striking out paragraph 15(A)(v), (B)(i), and (C)(i) & (ii) of the petition on the ground that it is imprecise, and vague as the polling units affected by the alleged anomalies were not mentioned.
(D) Striking out paragraph 17(15)(i), (ii), (iii), (iv), (v) (a) of the petition constitutes pre-election matters not related to the election and grounds of the petition.
(E) Striking out paragraph 18(vi) and (vii) of the petition on the ground that they are imprecise, nebulous and vague.
(F) Striking out paragraph 21(A)(5) of the petition for the reason that the paragraph complained against “polling unit 008″ which was not tied to any ward.”
Following the argument of counsel on both sides, the Tribunal delivered its ruling on 28-2-2014 substantially granting the applications and striking out several paragraphs of the petition.
Dissatisfied with this ruling, the appellants on 7-3-2014 commenced this appeal No CA/E/02/2014 by filing a notice of appeal containing 14 grounds. It is at pages 688 to 701 of the record of this appeal.
The appellants filed their brief of argument. The 1st and 2nd respondents together filed a brief of argument. The 3rd respondents filed his brief and the 4th respondent filed its own brief. The appellants filed separate reply briefs to the 1st and 2nd respondents’ brief, the 3rd respondent’s brief and the 4th respondent’s brief. All the parties to this appeal have adopted their respective briefs of argument.
The 3rd respondent on 21-3-2014 filed a notice of preliminary objection dated 21-3-2014.
It is reproduced at page 7 of the 3rd Respondent’s brief and argued at pages 7 to 9 therein. However on 10/4/2014, while adopting the 3rd Respondent’s brief, the learned Senior Advocate for the 3rd Respondent withdrew the said preliminary objection. It was accordingly struck out. The 4th Respondent also gave a notice of preliminary objection. It is not filed separately. It is contained in page 4 of the Respondent’s brief. The arguments of the objection are contained in the same page 4 of the said 3rd Respondent’s brief of argument. The Appellants in their brief of arguments raised the following issues for determination:
1. Whether a member of the Tribunal has the jurisdiction to determine an interlocutory application and strike out paragraphs of the petition. (Distilled from Ground 1)
2. Whether the lower Tribunal has jurisdiction to deliver any ruling outside the time prescribed by paragraph 18(9) of the First Schedule to the Electoral Act 2010 (as amended). (Distilled from Ground 2)
3. Whether the Tribunal has jurisdiction to hear and determine preliminary objections that had been incorporated in the respondents’ replies to the petition during a pre-hearing session. (Distilled from Ground 3)
4. Whether the lower Tribunal has jurisdiction to determine issues without considering the submissions of the appellants. (Distilled from Ground 5)
5. Whether the lower Tribunal has jurisdiction to strike our non-existent paragraphs of the petition and change the claims of a petitioner. (Distilled from Grounds 6 and 8)
6. Whether the Tribunal was right in holding that paragraphs of the petition relating to the qualification of a candidate is a pre-election matter to which it had no jurisdiction. (Distilled from Ground 7)
7. Whether the lower Tribunal was right in striking out the schedules referred to in pleadings. (Distilled from Ground 9)
8. Whether the lower Tribunal could give contradicting decisions in one ruling. (Distilled from Ground 10)
9. Whether paragraph 17(15)(1) to (v) of the petition was validly struck out. (Distilled from Ground 11)
10. Whether paragraphs 17(15)(V), B(i), C(I), C(II) of the petition were rightly struck out. (Distilled from Grounds 12 and 14)
11. Whether the Tribunal was right in holding that the persons referred to in the petition were necessary parties. (Distilled from Ground 13)
12. Whether paragraph 14(i), (ii) & (iii) are pre-election matters. (Distilled from Ground 4)
The 1st and 2nd Respondents adopted the above issues raised by the Appellants. The third Respondent in his brief of arguments raised the following issues for determination:
1. Whether the ruling delivered and duly signed by the Chairman and members of the Tribunal was delivered without jurisdiction and therefore void. Ground 1
2. Whether the ruling was delivered out of time contrary to paragraph 18(9) of the First Schedule to the Electoral Act 2010 (as amended) and therefore void for lack of jurisdiction. Ground 2
3. Whether the Tribunal acted outside its jurisdiction by hearing and determining the respondents’ objections in limine having regard to paragraphs 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) Ground 3.
4. Whether the Tribunal was correct when it struck out certain paragraphs of the petition containing allegations on register of voters for constituting pre-election matters. Grounds 4, 10, 11, 12
5. Whether the Tribunal was right in holding that the allegation of multiple registration and supplying false information to INEC by 3rd respondent was a pre-election matter by virtue of Section 31(5) and (6) of the Electoral Act, 2010 (as amended). Grounds 5, 6, 7
6. Whether the Tribunal was right when it struck out certain paragraphs of the petition for being vague, imprecise and generic. Grounds 8 and 14
7. Whether the Tribunal was correct when it struck out the schedules attached to the Petition. Ground 9
8. Whether the Tribunal was correct when it struck out paragraphs of the petition for comprising allegations of commission of crime against persons who were not joined in the Petition. Ground 13.
The 4th Respondent in his brief of arguments raised the following issues for determination:
1. Having regard to Section 285(4) and (6) and Section 318 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and paragraph 27(1) and 54 of the First Schedule to the Electoral Act 2010 (as amended) is the judgment or decision of the Tribunal 28/2/2014 delivered by a member of the panel who sat with the chairman of the panel a nullity (Ground 1).
2. Whether the appellants established that the Tribunal delivered its ruling of 28/2/2014 after the expiration of 14 days and whether such judgment, ruling or decision of the Tribunal delivered outside 14 days of the sitting of the Tribunal is rendered null and void by paragraph 18(9) of the First Schedule to the Electoral Act 2010 (as amended) (Ground 2).
3. Whether paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) raised jurisdictional or procedural issue as to render a motion on Notice brought pursuant to paragraph 47(1), (4) and (5) of the First Schedule to the Electoral Act 2010 (as amended) taken as the pre-hearing session null and void for lack of jurisdiction of the Tribunal to entertain same pursuant to paragraph 12(5) of the First Schedule to the Electoral Act (2010) (as amended) (Ground 3).
4. Whether the Tribunal’s ruling complained by the appellants that the facts averred as to voters register which includes voters register used in the conduct of 2010 and 2011 election and which was not used for the election the subject of the petition of the appellants was decided without considering the submissions of the appellants (Ground 4).
5. Whether the appellants who opposed the application to strike out certain paragraphs of their petition and took part in the proceedings can turn round and complain that the appellants do not know the paragraphs of their petition sought to be struck out by the respondents and which were struck out by the Tribunal. (Ground 5).
6. Whether the Tribunal was right in holding that paragraphs of the petition struck out purportedly questioning the qualification of the 3rd respondent outside the provisions as to qualification of the 3rd respondent under the 1999 Constitution of Nigeria and within the con of paragraph 31(4)(5) and (6) of the Electoral Act are pre-election matters (Ground 6).
7. Whether the Tribunal was right in striking out the schedules referred to and attached to the petition instead of being frontloaded by the appellants. (Ground 7).
8. Whether the decision of the Tribunal which distinguished voters register which was not used in the election and the voters register relevant to the election and or used in the election is wrong. (Ground 8).
9. Whether the Tribunal was right in striking out the paragraphs of the petition that were struck out by the Tribunal (Ground 12, 13 and 15)
10. Whether the Tribunal was right in striking out the paragraphs of the petition where the persons named and mentioned therein were not parties to the petition. (Ground 14).
I will determine this appeal on the basis of the issues raised by the Appellants. Before I delve into the consideration of those issues, let me consider the 4th Respondent’s preliminary objection. The grounds of the objection are that:
1. The Appellants formulated two issues for determination from one ground of appeal.
2. Issues for determination may arise from one ground of appeal but no ground of appeal can give rise to two issues for determination.
The learned Senior Advocate for the 4th Respondent has argued that it is the law that one ground of appeal gives rise to only one issue for determination and cannot give rise to two or more issues for determination. He then submitted further that issues number 4 and 12 of the Appellant’s issues for determination arise from ground 4 of this appeal. The learned Senior Advocate has urged this Court to strike out these issues for this reason. The Appellants in their reply brief to the 4th Respondent’s brief of arguments did not respond to this argument. This failure to respond does not automatically render the argument of the objection valid. The Court still has to consider if the argument is correct or not on the basis of the available facts and the relevant law. See the unreported decision of this Court in Onwugbelu V Ezebuo & Ors (Unreported decision in Appeal No CA/E/56/2009).
I have carefully read issues number 4 and 12 of the issues for determination in the Appellant’s brief and ground 4 of this appeal. It is glaring that the two issues do not all derive from ground 4. It is indicated in bracket, just after issue number 4, that it is derived from ground 5. It is beyond argument that issue number 4 derives from ground 5 of this appeal. Issue number 4 asks if the Trial Tribunal has jurisdiction to hear issues without considering the submissions of the Appellant. Ground 5 complains inter alia that the Trial Tribunal considered only the arguments put forward by the Respondents and ignored the arguments put forward by the Appellants in their written and oral addresses. Issue number 12 asks whether paragraph 14(I), (II) and (III) of the petition, are pre election matters. It is also indicated in bracket, immediately after this issue, that it is distilled from ground 4 of this appeal. Ground 4 complains that the trial tribunal was wrong to have held that paragraphs 14 (I), (II) and (III) of the petition are pre election matters.
The submission of the learned Senior Advocate for the 3rd Respondent that issues number 4 and 12 derive from ground 4 is clearly not correct. It is baseless and is accordingly hereby dismissed.
Having determined this Preliminary Objection, I will now move forward to consider the issues for determination in this appeal.
Let me start with issue number 1.
The Learned SAN for the appellants under this issue argued in substance that:-
1. The Chairman of the Tribunal should have sat alone to hear and determine the applications
2. The Chairman sat with one member to hear the applications and the second member Justice J.A. Viko who did not sit during the hearing of the applications, sat with the Chairman and the other member during the ruling.
3. The Chairman should have delivered the ruling and not a member of the Tribunal.
4. By virtue of paragraph 27(1) of the First Schedule to the Electoral Act 2010, it is the Chairman that can hear and determine interlocutory questions and matters. He relied on the decision of this Court in APAPA V. INEC (2012) 8 NWLR (PT 1303) 409 AT 430, ADESEUN V. ILAKA (2011) ALL FWLR (600) 1313 AT 1323, OMEH V. OKORO & ORS (1991) 8 NWLR (PT.616)356 AT 368 AND ADEWALE V. ALLI (2011) LPELR 4243.
Learned SAN for the 1st and 2nd respondents argued in reply that –
1. By virtue of S.285(4) of the 1999 Constitution, the Tribunal fully constituted by the Chairman and two members or with one member can hear and determine interlocutory matter.
2. Paragraph 27(1) of the First Schedule is intended to expedite the hearing of Election Petitions by enabling the Chairman to sit alone to hear interlocutory applications during pre-hearing conference and save the time that would be lost if such matters are dealt with by the full panel of the Tribunal.
3. Non compliance with paragraph 27(1) of the First Schedule cannot nullify the hearing and determination of the applications by virtue of paragraph 53(1) of the First Schedule.
4. Since time is of essence as an election petition must be heard and determined within 180 days of filing the petition, it will not be in the interest of justice, to nullify or set aside the hearing and determination of the said applications and cause the process to start afresh. So much needed time would have been lost in the process. So if the Court finds merit in this appeal, it can determine the merit of the applications here instead of remitting them to be reheard by the Tribunal.
5. The use of the word may in paragraph 27(1) shows that it is meant to complement and not substitute the provisions of S. 285(4) of the Constitution. By the use of that word it shows that the provision intends that it should be applied permissively and that it is not mandatory that the Chairman must sit alone.
6. In APAPA V. INEC (supra) and ADESEUN V. ILAKA (supra), this Court did not give due deference to paragraph 53(1) and held that paragraph 27(1) First Schedule cannot be waived on the principle that where a statute provides a procedure by which a thing should be done, it is only that procedure that must be adopted.
Every part of the First Schedule to 2010 Electoral Act can be waived by virtue of paragraph 53(1). For this submission, he relied on this Court’s decision in TALLEN & ORS V. JANG & ORS (2011) LPELR 9761 (CA) P. 23-26 which considered this point in extenso and condoned non-compliance with paragraph 18(4) of the First Schedule.
7. The appellants fully participated in the hearing of the said applications without complaining about the composition of the panel hearing the application. Having consented to the procedure they cannot now be heard to complain. He then urged this Court to resolve issue No 1 in favour of the respondents.
The Learned SAN for the 3rd respondent argued in reply that-
1. The Tribunal was properly constituted when it heard and determined the applications since by virtue of S. 285(4) of the 1999 Constitution as amended the quorum of the Tribunal is the Chairman and one member.
2. To apply any act of the National Assembly or any other law in a manner as to alter the quorum of the Tribunal as prescribed by the Constitution would violate the Supremacy clause in S.1(3) of the 1999 Constitution.
3. There is nothing in the Electoral Act mandating only the Chairman of the Tribunal to conduct pre-hearing conference. By paragraph 18(1)(d) of the First Schedule, it is the Tribunal that shall hear and determine objections on points of law during pre-hearing conference.
4. The word may in paragraph 27(1) shows that it intends to be permissive and not mandatory as to quorum to determine interlocutory matters.
5. Interlocutory matter in paragraph 27 is limited to applications to order security for costs, to documents, to produce documents, and such like matters to get the petition ripe for hearing. They do not on their own constitute part of the action. They are not decisions in the petition. Interlocutory matter in paragraph 27(1) must be understood in the con of S. 64 of the Federal High Court Act.
6. S. 285(4) of the 1995 Constitution and S.64 of the Federal High Court Act were not considered by this Court in APAPA V. INEC (supra) and ADESEUN V. ILAKA (supra). They were thus reached per incuriam.
7. Paragraph 27(1) is a procedural Legislation and cannot conceivably override substantive provisions, especially the Constitution. He relied on the decision of this Court in OKAFOR V. OKONKWO (2002) 17 NWLR (PT 796) 262 in urging that we depart from our above decisions.
8. The decisions of the superior courts abound to the effect that where a statute especially the Constitution provides for the doing of an act it will be wrong not to comply with the provisions and compliance thereof cannot attract any sanctions. See UDEAGHA V. OMEGHARA (2010) 11 NWLR (PT. 1204) 168 AT 2005, UDENE V. UGWU (1997) 3 NWLR (PT.491) 57, MAKO V. UMOH (2010) 8 NWLR (PT.1195) 82.
9. The Courts have equally held copiously that where the Chairman and members of a Tribunal signed the decision it qualifies as a decision of the Tribunal. See AGAGU V. MIMIKO (2009) 7 NWLR (PT 1140) 342, MARK V. ABUBAKAR (2009) 2 NWLR (PT. 1124) 79 AT 136, NGIGE V. OBI (2006) 14 NWLR (PT 999) 1 AT 182.
10. Learned SAN for the 4th respondent has argued in similar vein. Since his submissions are in substance the same with those of the Learned SANs for the other respondents there is no need repeating them here. I am equally well guided by those submissions.
Let me now consider the arguments of both sides on this issue.
I agree with the arguments of Learned SANs for the 3rd and 4th respondents that the quorum of the Tribunal as prescribed by S. 285(4) as amended (2nd alteration) is the Chairman and one member. The said S.285(4) as amended (second alteration) states that “The quorum of an election Tribunal established under this section shall be the Chairman and one other member.”
The record of this appeal show that the Chairman and one member sat to hear the applications and the Chairman and two members sat to deliver the ruling and the 3 members signed the ruling. I therefore hold that the Tribunal was duly and properly constituted as prescribed by S. 285(4) of the 1999 Constitution when it heard and determined the applications. But the appellants are contending that by virtue of paragraph 27(1) of the First Schedule to the 2010 Electoral Act only the Chairman should have heard and determined the applications to strike out paragraphs of the petition and that it was wrong for the Chairman to have sat with one or two members to hear and determine those applications. The Learned SAN for the appellants argued that for this the ruling on the said applications delivered on the 28-2-2014 was delivered without jurisdiction and was therefore null and void and urged that it be set aside.
Arising from the arguments of the Learned SAN for the appellant and Learned SANs for the respondents is the issue whether there is a conflict between S.285(4) of the 1999 Constitution and paragraph 27(1) of the First Schedule as to how the Tribunal should be constituted when hearing interlocutory applications in an election petition. The Learned SAN for the appellants has argued in the appellants reply to the 3rd and 4th respondents brief that there is no conflict between the provisions because S. 285(4) provides for the quorum of the Tribunal, while paragraph 27(1) of the First Schedule to the Electoral Act provides for the right or power to hear and determine interlocutory applications. Learned SAN for the 1st and 2nd respondent argued that paragraph 27(1) complements and not substitute S. 285(4). The Learned SAN for 3rd respondent argued that it is a matter of how paragraph 27(1) is applied. According to him if it is applied to enable the Chairman dispose of the kind of applications that will enable the petition be ripe for hearing, then it compliments S. 285(4) and will not conflict with it. But if it is applied in a manner as to alter the quorum of the Tribunal, it will conflict with S. 285(4). In another breath he argued bluntly that it is in conflict with S.285(4). The Learned SAN for the 4th respondent argued extensively that paragraph 27(1) is in conflict with S. 285(4) of the Constitution.
Let me state straightaway that I do not agree with the submission of the Learned SAN for the appellants that paragraph 27(1) provided for the right or power to hear and dispose interlocutory questions and matters and not quorum, and that the Constitution did not provide for the right and power to deliver interlocutory decisions or any decision of the Tribunal.
Paragraph 27(1) of the First Schedule provides that “All interlocutory questions and matters may be heard and disposed of by the Chairman of the tribunal or the Presiding Justice of the Court who shall have control over the proceedings as a Judge in the Federal High Court”.
It is glaring that this provision prescribes the constitution of the Tribunal for the hearing and disposal of interlocutory questions and matters even though it may not have used the wrong quorum. By virtue of S. 285(2) of the Constitution it is only the Tribunal that has the jurisdiction to hear and determine a petition questioning the election of a person as governor of a state. The proceedings in the petition includes every matter, question or issue in the proceedings till the final determination of the petition. The power given to the Tribunal by S.285(2) includes the power to deliver interlocutory decisions in the petition and the power to finally determine the petition. So the argument of the Learned SAN for the appellants that S.285 did not provide for the power to deliver interlocutory and final decisions in an election petition is wrong. That power is clearly vested on the Tribunal by S.285(2) of the Constitution. The Learned SAN for the appellants even acknowledge this in the appellants’ brief of argument when he submitted that “Any ruling or judgment so delivered by the Chairman is deemed a ruling or judgment of the Tribunal.” In OMEJEB V. ODUM (2011) ALL FWLR (PT 600) 1328 it was held relying on S.285(4) of the Constitution that when the Chairman of the Tribunal sat alone to hear counsel adopt written addresses and make final address, the Tribunal was not properly constituted and thus incompetent to conduct any judicial proceeding. It was held in NGIGE V. OBI (2006) NWLR (PT.999) 1 AT 209 TO 210 that for a decision of the Tribunal whether interlocutory or final to be valid, the Tribunal must be constituted as prescribed by S. 285(4).
S.285(6) of the Constitution clearly provides that “an election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.” Within the 180 days during the course of the proceedings the Tribunal can render interlocutory orders or decisions. See UGBA V. SUSWAN (2013) 4 NWLR (PT.1345) 427 AT 459 per Ariwoola JSC.
There is nothing in S. 285(4) of the Constitution that suggests that the Tribunal shall be constituted otherwise than as prescribed therein, by the Chairman alone, for the purpose of hearing and determining interlocutory questions and matters during election petitions. There is nothing in the said S.285(4) permitting a derogation from its provision by an Act of the National Assembly or other law. It is obvious that S. 285(4) of the Constitution and paragraph 27(1) of the First Schedule to the Electoral Act conflict on the quorum of the Tribunal when it sits to hear and dispose of interlocutory questions and matters in the election petition.
S. 1(1) and (3) of the 1999 Constitution establishes beyond per adventure the supremacy of the Constitution. It states that –
(1.) This constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2.) If any other law is inconsistent with the provisions of this constitution the constitution shall prevail and that other law shall to the extent of the inconsistency be void.
It is settled law that where the Constitution has covered the field by providing for any subject matter, the provision of the Constitution on that subject matter is the overriding authoritative statement of the law on the subject matter. The National Assembly which is bound by the Constitution cannot legislate contrary to the provision of the Constitution. See INEC & ANOR V. MUSA & ORS (2003) 1 SC (PT.1) 106 where the Supreme Court per Ayoola, JSC held “Where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The constitution would not have ‘covered the field’ where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, Section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorize INEC to do so, unless the Constitution itself has so permitted.”
See also OKOCHA & ANOR V. INEC & ORS (2010) LPELR 4718.
Therefore any law, whether an Act of the National Assembly or Law of a House of Assembly, any Rules of Court like the First Schedule to the Electoral Act or even case law that conflicts with the Constitution is to the extent of the inconsistency void and of no effect. Paragraph 27(1) of the First Schedule to the Electoral Act 2010, to the extent that it provides that all interlocutory questions and matters may be heard and disposed of by the Chairman of the Tribunal or the presiding Justice of the Court who shall have control over the proceedings as a judge in the Federal High Court, clearly alters the quorum of the Tribunal as prescribed by S. 285(4) of the Constitution and therefore derogates from it. It is in direct conflict with the provision of S. 285(4). In OBASANJO V. YUSUF (2004) 9 NWLR (PT 877) 144 AT 183 the Supreme Court held that “it is admitted that the Constitution being the supreme law of the country, is not subject to the Electoral Act or any law at all rather, it is the Act that is made subject to the Constitution. The Constitution is only subject to itself.”
In keeping with the provisions of Section 1(3) of the 1999 Constitution, I hereby declare the said paragraph 27(1) of the First Schedule to the Electoral Act, void.
I have carefully read the decisions of this Court in APAPA V. INEC (supra) and ADESEUN V. ILAKA (supra), I refuse to be bound by them in view of the provisions of S. 285(4) of the 1999 Constitution, especially as this provision was not considered in those cases.
In any case, the argument of the Learned SAN for the appellants that the Chairman of the Tribunal should have sat alone and not with another member or other members is not consistent with issue No 1 as couched. The issue asks whether a member of the Tribunal has jurisdiction to determine an interlocutory application and strike out paragraphs of the petition. The obvious complain in this issue is that one member, alone who is not the Chairman, determined the applications. Arguments based on an issue must be consistent with the issue. If the arguments address a complain not raised in the issue, then they are inconsistent with that issue and cannot be treated as founded on the issue. As the Supreme Court held in MOMODU & ORS V. MOMOH & ANOR (infra) it is the intendment of both the current Rules of the Court of Appeal and this Court, that the argument contained in a brief shall be based on the issues formulated and not on the grounds of appeal. So that even if the arguments address the complaint in the ground, as in this case, they cannot stand if they are not based on the issue. Courts resolve controversies in appeals on the basis of issues. In Fatunbi and Another vs Olanloye and Others (2004) 6-7 SC 68, the Supreme Court restated that “arguments and addresses of counsel in their briefs should be based on what is contained in the issues formulated and not on the grounds of appeal.”
Another problem in the case presented by the appellants under issue No. 1 is that the issue as couched is at variance with ground 1 of this appeal from which it is said to be derived. While the ground complains that the full panel of the Tribunal was involved in the determination of the interlocutory matter, in that a member wrote and delivered the ruling with the concurrence of the Chairman and the other member, the complaint in the issue is that one member alone determined the applications objecting to the Petition. For ease of reference and to facilitate the comparison, I will reproduce the of the issue and ground side by side. The Tribunal has the jurisdiction to determine an interlocutory application and strike out paragraphs of the Petition”. The ground states that-
“The lower Tribunal erred in law and acted without jurisdiction when a member of the Tribunal, Hon. Justice A.L. Akintola (Member 2) wrote and delivered the interlocutory Ruling to which the Chairman and third member of the Tribunal purportedly concurred.
PARTICULARS OF ERROR
(i) Paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 (as amended) gives only the Chairman of the Tribunal the power to decide interlocutory applications.
(ii) Other members may sit with the Chairman to form a quorum but they have no power to decide on interlocutory applications.
(iii) Hon. Justice J.A. Viko (Member 1) was not present at the conclusion of argument on the application and ought not have participated in the decision.”
The complaint in issue number 1 is obviously completely at variance with the one in ground 1 of this appeal. Therefore issue number 1 as couched, addresses a question different from the one in ground 1. As it is, issue number 1 cannot be said to derive from ground 1 because an issue can only be regarded as deriving from a ground of appeal if the complaint or question it raises is the same with that in the ground from which it purports to be derived. As the Supreme Court held in Ayinde and Others vs Adigun (1993) 11 SCNJ 1, issues for determination should be consistent and fall within the scope and confines of the grounds of appeal relied upon. Issue number 1 as couched is not derived from any ground of this Appeal. It is therefore incompetent. It is now settled law that an issue for determination in an appeal must derive from at least one ground of the appeal and an issue not derived from any ground of the appeal is incompetent. See Magit vs University of Agriculture Makurdi and Others (Supra), Ayinde vs Adigun (Supra) and Momodu and Others vs Momoh and Another (1991) 2 SC 1. The arguments become equally incompetent because there is no longer any competent issue on the basis of which the arguments can be validly considered. Momodu and Others vs Momoh and Another (Supra), Adejumo vs Ayantegbe (1989) 3 NWLR (Pt. 110) 417 at 430 and Onifade vs Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157 referred to by the Supreme Court in holding as above.
In the light of the foregoing I resolve issue No 1 in favour of the respondents.
I will now proceed to consider issue number 3. I have chosen to determine it before issue number 2 because the consideration of issue number 2 before issue number 3 will prejudice number 3 and render its determination unnecessary.
Issue number 3 asks whether the Tribunal has the jurisdiction to hear and determine preliminary objections that had been incorporated in the Respondents’ replies to the petition during a pre trial session.
The learned Senior Advocate for the Appellants has relied on paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended), to argue that:
1. “Once a Respondent has an objection against the petition, he must state it in his reply to the petition, and once stated in his reply, it can only be heard along with the petition.”
2. Paragraph 18(7)(d) and 47(1) of the same 1st Schedule to the Electoral Act 2010 are general provisions which complement each other.
3. The objections on points of law that can be heard during pre hearing sessions by virtue of Section 18(7)(d) relate to objections generally. It may be objections against documents to be tendered; objections against an application for amendment; objection to an application for inspection of documents or any application whatsoever. But where the objection is against the petition itself, a special provision was made in paragraph 12(5). Where there is a general provision as well as a specific provision, the specific provision shall prevail over the general provision.
On the relationship between general provisions and specific provisions, he relied on the decision of this Court per Mshelia JCA in Apapa vs INEC (2012) 8 NWLR (Pt. 303) 409 and the decision of the Supreme Court in Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 433 at 629 and Obi vs INEC (2007) 11 NWLR (Pt. 1046) 558.
On the relationship between paragraph 12(5) and paragraph 47(1) of the 1st Schedule to the Electoral Act 2010, the learned Senior Advocate relied on the Supreme Court in PDP vs INEC (2012) 7 NWLR (Pt. 1300) 538 to 559.
Another submission of the learned Senior Advocate is that paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 is of essence in an election petition and is for the purpose of meeting the clear dictates of the Constitution. According to him, going by the guiding principles of interpretation of statutes, the paragraph has to be considered literally and beneficially so as to promote the suppression of the mischief clearly being sought to be remedied. These provisions of paragraphs 53(2) and (5) of the 1st Schedule notwithstanding, full effect must be given to paragraph 12(5) of the 1st Schedule.
On the mandatory nature of paragraph 12(5) of the 1st Schedule, particularly because of the use of the word “shall” twice therein, he relied on Abubakaar vs Nassamu No. 1 (2012) 17 NWLR (Pt. 1330) 407 and 447 and the statement of Tabai JSC in Belgore vs Ahmed (supra) that full effect must be given to paragraph 12(5) of the 1st Schedule.
Finally, the learned Senior Advocate submitted that one of the conditions that must exist before a Court or Tribunal will have jurisdiction is that the matter must have come before the Court by due process and after satisfying all the conditions precedent to the invocation of jurisdiction. For this submission he relied on the Supreme Court decisions in Madukolu vs Nkemdilim (1962) 2 SCNLR 341 and Ogembe vs Usman (2011) 17 NWLR (Pt. 1277) 638 at 661. He then urged this Court to allow this appeal and set aside the ruling of the Tribunal.
The learned Senior Advocate for the 1st and 2nd Respondent has argued replicando to the arguments under issue number 3 of the Appellants’ brief. The issue under which the arguments were made reads thus: “whether the striking out of paragraph 5(I)-(III) of the Petitioner’s reply along with paragraph 9(I)-(VI) of the additional witness statement of Chibuzor Obiakor was lawful having regard to the relevant rules.”
The Appellants contend in their reply brief to the 1st and 2nd Respondents’ brief, that the issue never arose from the Appellants’ briefs of argument or grounds of appeal and that therefore it is incompetent and should be struck out.
I have carefully read all the grounds of this appeal and the Appellants’ brief. I agree with the submission of the learned Senior Advocate for the Appellants that the issue is not derived from any of the grounds of this appeal and was not raised in the Appellants’ brief of arguments. It is therefore incompetent. I accordingly strike it out.
The learned Senior Advocate for the 3rd Respondent has argued replicando that:
1. The Trial tribunal acted within the bounds of the law when it proceeded to entertain the applications to set aside paragraphs of the petition considered offensive by the Respondents.
2. The paragraphs of the Electoral Act 2010 which assume the central stage in this application are paragraphs 12(5), 18(7)(d), 53(2) and (5). It is only upon their holistic and dispassionate consideration that the justice of the matter could be attained. The Appellants have isolated only paragraph 12(5) of the 1st Schedule in contending that the objection should be taken along with the petition. They however, are not entitled to ignore paragraphs 18(7)(d), 47(1) and 53(2) and (5) of the Electoral Act as if they did not form a part of the same law.
3. Paragraphs 12(5) deals with objections to the hearing of the petition and not objections to some paragraphs of the petition. None of the paragraphs in the 3rd Respondent’s motion on notice was for the striking out of the petition. The Tribunal was therefore right when it held that the objection praying for the striking out or dismissal of the petition would not be entertained during the pre-conference hearing but would be heard along with the substantive petition seeing as the objections to the petition had been incorporated into the briefs of the Respondent.
4. With respect to paragraph 18(7)(d), of the 1st Schedule to the Electoral Act which stipulates that the Tribunal shall at the pre-hearing take appropriate action in respect of the “hearing and determination” of objections of law, “being couched in mandatory terms by the adoption of the expression “shall”, the Tribunal was compelled to hear and determine the objections raised by the 3rd respondent at the pre-hearing stage.”
5. The 3rd respondent had, in addition to embedding the objection in the reply, filed a Motion for the objection to be heard. This was in strict compliance with paragraphs 18(1)(d) and 47(1) as by virtue of paragraphs 53(2), an application to set aside a proceeding arising from a petition shall not be allowed unless made within a reasonable time and then not after the party complaining had taken a fresh step in the proceeding. The identification of the offensive paragraph of the petition in the reply is therefore only an initiating stage of the process. It is only by way of a motion compelling the hearing of the matters raised at the appropriate time, which must be at pre-hearing that the stringent consequences of paragraphs 18(7)(d) and 53(2) of the 1st Schedule may be avoided. Had the Tribunal taken the issue of jurisdiction at the pre-hearing stage, then the inference that it transgressed paragraph 12(5) of the 1st Schedule may be of some consideration. There is no aspect of the foregoing paragraphs of the 1st Schedule to the Electoral Act which the Tribunal can conceivably be said to have misapplied.”
The learned Senior Advocate for the 3rd Respondent relied on the Supreme Court decision in PDP vs INEC (2012) 7 NWLR (Pt. 1300) 538 at 566 on the alternative procedure for raising objections to petitions before the Tribunal under paragraphs 12(5) and 47(1) of the 1st Schedule to the Act. He submitted that the Supreme Court decision in Belgore vs Ahmed (Supra) is not relevant to the facts of the present case because the principle on which the case was decided is not that it was wrong for a Tribunal to entertain an objection to the paragraphs of a petition at the pre-hearing conference, but that the Court decided that a party who chooses to argue his objection at a subsequent stage of the proceedings along with the substantive petition has not waived his right to raise such an objection in his final address at the conclusion of the trial. According to him, in that case it was the hearing of the petition that was challenged and not some paragraphs of the petition.
The learned Senior Advocate for the 4th Respondent also argued extensively in response to the arguments of the learned Senior Advocate for the Appellants under this issue. The arguments are exactly similar to that made by his learned colleague for the 1st and 3rd Respondents so there is no need restating them here.
The Appellants in their replies to the briefs of the Respondents responded to the arguments of the 3rd and 4th Respondents on issue number 3. The contents of the reply briefs on this issue are exactly similar. I have decided not to restate the arguments here because they are mere repetitions of what had been argued.
I will now consider the above arguments of counsel on this issue.
Let me state straightaway that it is glaring from the records of this appeal that the Respondents stated in the first paragraphs of their replies to the petition in the Trial Tribunal under the heading “preliminary points of law to be determined” or “preliminary points of law to be raised at the pre-hearing conference” a notice that the Respondents shall at the pre-hearing conference apply for the striking out of the 5th Respondent as a Respondent in their petition as there is no argument connecting it with the case and some paragraphs of the petition. Following their notices of objection contained in their respective replies, the Respondents filed their respective motions on notice praying that the Tribunal strike out several paragraphs of the petition for various reasons.
With respect to the issue of the nature of the objections, I agree with the submissions of the learned Senior Advocates for the Respondents that the objections stated in the replies and the motions on notice were not against the hearing of the petition. The objections were against some paragraphs of the petition. The purpose was to have them struck out so as to facilitate the hearing of the real and triable issues to avoid waste of time on frivolous and vexatious issues. Since the objections are not against the hearing of the petition, paragraph 12(5) cannot apply to determine when and how they can be heard or tried. Let me reproduce the said paragraph 12(5) here for ease of reference. It states that “a Respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition.” It is clear from the Litera Legis of that provision that it limits its application to objections to the hearing of a petition. An objection to the hearing of a petition consists of any process that seeks to terminate the petition or proceedings in the petition. This can include an objection to the jurisdiction of the Tribunal to entertain the petition as a whole, an objection that the petition is statute barred or that it is incompetent for some legal reason or that it discloses no cause of action. None of the objections by the Respondents are intended or have the effect of terminating the petition or stopping further proceedings therein.
The Appellants appear to hold the notion that once a preliminary objection is incorporated in the Respondents’ reply brief then it cannot be heard during the pre-hearing conference and must be heard along with the substantive petition. I hold this view because issue 3 asks if the Tribunal can hear and determine a preliminary objection that has been incorporated in the Respondents’ reply brief during the pre-hearing conference. It is not every objection that is stated in the Respondents’ reply to the petition that must be heard along with the substantive petition. It is only objections to the hearing of the petition. The Appellants remained silent both in their briefs of argument and in their replies to the briefs of the 3rd and 4th Respondents on the nature of the objections the Respondents raised at the trial Court. Having submitted that paragraph 12(5) is a special provision applicable to objections against the petition, it behoved them to show that the objections of the Respondents were against the hearing of the petition so as to justify their reliance on paragraph 12(5) as the fulcrum of their issue number 3.
Surprisingly, they did not. The 3rd and 4th Respondents extensively argued in their briefs that the objections are not against the hearing of the petition but against some paragraphs therein. The Appellants in their reply briefs did not answer these arguments. The Appellants clearly failed to justify their invocation of paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 in opposition to the hearing of the objections at the pre-hearing conference.
In any case, it appears that paragraph 53(2) to the 1st Schedule permits objections to the competence, validity or regularity of the petition itself or any proceedings therein after the close of pleadings. The said paragraphs state that- “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.”
But by virtue of the decision of the Supreme Court in Belgore vs Ahmed (Supra), if the Respondents elect to raise their objection under paragraph 12(5), they are entitled to do so and paragraph 53(2) and (5) cannot operate to defeat their exercise of that right by arguing the objections they had stated in their replies in their final addresses.
By virtue of paragraphs 18(7)(d) and 47(1) of the 1st Schedule, the motions on notice praying for the striking out of some of the paragraphs of the petition can be heard at the pre-hearing conference. The learned Senior Advocate for the 3rd and 4th Respondents was right in his submissions on this point. Paragraph 18(7)(d) enumerates the matters the Tribunal can consider at the pre-hearing session. It did not specify or restrict the type of action the Tribunal can take when considering such matters at the pre-hearing session. It gives the Tribunal the discretion to take the appropriate actions as may be necessary or desirable.
This is obvious from the wordings of the said paragraph which I have reproduced here for ease of reference. It states that “at the pre-hearing session the Tribunal or Court shall consider and take appropriate action in respect of the following as may be necessary or desirable”. One of the matters it listed in sub paragraph ‘d’ thereunder is “hearing and determination of objections on point of law”. The Respondents’ objections at the Trial Tribunal were objections on point of law. Paragraph 47(1) provides that “no motion shall be moved and all motions shall come up at the pre-trial session except in extreme circumstances with leave of the Tribunal or Court.” It is beyond dispute that the provision restricts the hearing of motions to the pre-hearing conference and only allows a motion to be heard outside the pre-hearing conference in extreme circumstances and with leave of the Tribunal.
The Supreme Court in PDP vs INEC (Supra) stated in clear unambiguous terms the law on the application of paragraph 12(5) and 47(1) thereby putting the matter beyond dispute. The Respondents in that case stated their objections to some paragraphs of the petition in their replies to the petition, but filed no motion on notice raising the objections and applying that the said paragraphs of the petition be struck out. At the conclusion of the trial, the Respondents in their final addresses argued their objections embedded in their replies. The Trial Tribunal relied on paragraph 12(5) to determine the objections and struck out the offensive paragraphs of the petition in its judgment. On appeal against the judgment of the Tribunal, it was argued that the Tribunal was wrong to have relied on paragraph 12(5) of the 1st Schedule to hear the objection at the close of the trial when it should have been heard at the pre-hearing conference by virtue of paragraph 47(1). This Court dismissed the appeal on this point. On further appeal to the Supreme Court, it was held that by virtue of paragraph 12(5) of the 1st Schedule, the Respondents rightly raised the objection to certain paragraphs of the petition at the conclusion of the trial.
The Supreme Court also held that paragraphs 12(5) and 47(1) prescribe two distinct but alternative approaches to the raising of objections before the Trial Tribunal in an election petition. It held that “these paragraphs of the 1st Schedule apply to different situations and proceedings, i.e.:
1. “Where a party approaches the tribunal with objection by way of motion, such shall be moved and determined during pre-hearing session except in extreme circumstances with the leave of the tribunal, that is position under the provisions of paragraph 47(1) of the 1st Schedule; and
2. Where the objection is embedded or stated in the reply. Such objection shall be heard along with the substantive case.”
A party is entitled to elect which method to use in objecting to the paragraphs of the petition. As stated by the Supreme Court in the same case of PDP vs INEC (Supra) “where the law provides two modes or procedures for doing a thing, a party can choose any of the methods so provided.”
In our present case, the Respondents had indicated in their replies that they will apply to the tribunal to strike out certain paragraphs of the petition at the pre-conference hearing. They filed motions on notice applying that the said paragraphs of the petition be struck out. It is glaring that they elected to use the procedure referred to in paragraph 47(1). They are perfectly entitled to do so as held by the apex Court in PDP vs INEC (Supra).
The learned Senior Advocate for the Appellants in support of his submission that once an objection is embedded in a reply, it can only be heard along with the petition, relied on the statement of the Supreme Court in BELGORE VS AHMED (Supra), per Tabai JSC to the effect that the provisions of paragraphs 53(2) and (50) of the 1st Schedule notwithstanding, full effect must be given to paragraph 12(5) of the 1st Schedule. With due respect, I think that this statement of the Supreme Court in Belgore is wrongly applied by the learned Senior Advocate. I agree with the submissions of the learned Senior Advocate for the 3rd and 4th Respondent to wit; that BELGORE VS AHMED (Supra) did not decide that once an objection is stated in the reply to a petition, it can only be heard along with the petition and cannot be heard at the pre-hearing conference. In that case, the Respondents stated their objections in their reply but did not file any motion on notice raising the objection. They argued their said objection in their final addresses following the conclusion of evidence. It was contended by the petitioner that for not raising and arguing the objection before the filing of their reply and in view of the various steps they had taken in their defence of the petition, they had waived their right to argue the objection. The Petitioner in so contending, relied on paragraph 53(2) and (5) of the 1st Schedule to the Electoral Act 2010 and further contended that paragraph 12(5) does not apply because it is a general provision as opposed to paragraph 53(2) and (5) which are specific provisions.
The Supreme Court held that by virtue of paragraph 12(5), the Respondents were entitled to argue their objection in their final address and had not waived the right to do so by not arguing it earlier. It is in this con that the Supreme Court held that the provisions of 53(2) and (5) notwithstanding, full effect must be given to paragraph 12(5) of the 1st Schedule.
In light of the foregoing, I hold that the Trial Tribunal was right to have heard and determined the motions on notice applying for the striking out of some paragraphs of the petition at the pre hearing conference.
Issue number 3 is therefore resolved against the Appellant.
I will now consider issue number 2 which asks whether the Lower Tribunal has the jurisdiction to deliver any ruling outside the time prescribed by paragraph 18(9) of the 1st Schedule to the Electoral Act 2010.
I have carefully read the arguments of the learned Senior Counsel to all sides. The most fundamental issue thrown up by their argument is whether the ruling on the Respondents’ objection to certain paragraphs of the petition was delivered during the pre-hearing conference or outside it. The learned Senior Advocate for the Appellants has argued that the pre-hearing session commenced on the 11th February, 2014. Relying on the submission of the learned Senior Counsel for the 4th Respondent on the 19th January, 2014 before the Trial Tribunal, the learned Senior Advocate argued that “14 days thereafter ended on the 25th February, 2014. The Respondents’ applications were heard on the 12th and 19th February, 2014, but a ruling thereon was not delivered until 20th February 2014, 3 days after the expiration of the time limited for pre-hearing sessions, and that there was no order extending the time period of 14 days. The learned Senior Advocate for the 1st and 2nd Respondents argued that the ruling was delivered within the pre-hearing session but outside 14 days from the date of the commencement of the pre-hearing conference and that the pre trial conference continued after the expiration of the 14 days from its commencement.
The learned Senior Advocate for the 3rd Respondent has submitted that the burden is on the appellant to establish the date of commencement of pre-hearing and this can not be done by reference to what counsel said in Court.
The learned Senior Advocate for the 4th Respondent argued that the appellants continued to participate in the pre-hearing proceedings even after 28-2-2014 and so consented to the hearing after that date. He can not now complain that paragraph 18(9) was not complied with.
The full proceedings of the pre hearing conference are not contained in the record of this appeal. Only the part of the pre hearing proceedings concerning the hearing of the Respondents’ objections is contained in the record of this appeal. Apart from the mere ipse dixit of the learned Senior Advocate for the 4th Respondent before the Trial Tribunal on 19th February, 2014 that the pre hearing conference commenced on 11th February, 2014 there is no process of the Tribunal contained in this appeal stating when the Trial Tribunal commenced the pre hearing conference.
A pre hearing conference does not just commence, nor is it deemed to commence by agreement of counsel as submitted by the learned Senior Advocate for the Appellants in the Appellants’ reply to the Respondents’ brief. It is a matter regulated by paragraph 18 of the 1st Schedule to the Electoral Act 2010. Paragraph 18(1) and (2) prescribes the processes that are required to commence the conference. It states that
“1. Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply as the case may be, the petitioner shall apply for the issuance of pre-hearing notice in form TF 008.
2. Upon application by a petition under sub-paragraph (1), the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in form TF 008 accompanied by a pre-hearing information sheet as in form TF 009.”
Paragraph 18(6) and (7) prescribes what the Tribunal can do during the proceedings of the pre hearing conference.
The pre hearing notices and information sheet, scheduling order and pre hearing conferencing report that would have shown when the pre hearing conference commenced are not in the record of this appeal.
I do not think that the mere ipse dixit of Counsel from the bar can take the place of these statutory processes. The record of proceedings of a Court is the only way of showing what transpired during the proceedings and not what a Counsel who participated in the proceedings said transpired, especially when all counsel who participated in the said proceedings do not agree on what transpired. In any case, the statement of Counsel on the commencement of a judicial proceeding is secondary evidence of that fact. The record of such proceedings; being a public record, falls within the purview of Section 90(1)(c) which prohibits any other form of secondary evidence of such a record except a certified true copy of the record. In the absence of any certified true copy of the record of the pre hearing conference, I hold that the Appellants have not established that the pre hearing conference commenced on 11th February, 2014.
I agree with the submission of the learned Senior Advocate for the 3rd Respondent that since the Appellants had a duty to show when the pre hearing conference commenced being that they assert that as at 28th February, 2014 when the Tribunal delivered the ruling on the motions leading to this appeal, 14 days had lapsed from the commencement of the pre hearing conference. Having failed to discharge this duty, there is no valid basis for their said argument that 17 days had elapsed by 28th February, 2014. In any case, the limitation period prescribed in paragraph 18(9) applies to the pre hearing conference and not the motions on notice. It is agreed by all that the motions on notice were heard and determined during the pre hearing conference. Paragraph 47(1) merely requires that all motions on notice be heard during pre hearing sessions. None of the paragraphs of the 1st Schedule limited the time for the hearing and determination of motions to 14 days. Once the motion on notice is heard during the pre hearing conference, the requirement of paragraph 47(1) is satisfied. The question whether the pre hearing conference has exceeded 14 days or not touches directly on the validity or regularity of the pre hearing conference itself and not on what was done during such conference. If the pre hearing conference proceedings exceeded 14 days without an order of the Tribunal extending the period for the holding of the conference as required by paragraph 18(9), then the Tribunal has not complied with that paragraph. The question that would arise at that juncture would be what is the consequence of such non compliance? The answer is clearly provided for in paragraph 53(1) of the First Schedule. It is glaring from this provision that pre hearing conference proceedings of the Tribunal after 14 days from its commencement, will remain valid until the Tribunal or Court holds otherwise or sets it aside as irregular, wholly or in part.
There is nothing in the record of this appeal showing that the Tribunal directed that it is void or that the Tribunal set it aside as irregular. The Supreme Court in Abubakaar vs Nassamu (No. 2) (Supra) that non-compliance with any part of the provisions of the 1st Schedule to the Electoral Act will not render the proceedings void and that such non-compliance is only an irregularity that is curable by virtue of paragraph 53(1) of the 1st Schedule.
I do not agree with the submission of the learned Senior Advocate for the Appellants in the Appellant’s reply brief to the 4th Respondent’s brief. Paragraph 53(1) of the 1st Schedule is only applicable to non-compliance by parties and is not applicable to non-compliance by the Tribunal. There is nothing in paragraph 53(1) of the 1st Schedule suggesting such differential application of the provision. The provision is directed at non-compliance with the provision of the 1st Schedule generally and not non compliance by the parties.
Learned Senior Advocate for the Appellants in the Appellants’ reply to the 4th Respondent’s brief argued that- argued that assuming the statement of 4th respondent counsel did not prove the beginning of the pre-hearing session then in the absence of any record showing when it started, it means that it never commenced and so all the application heard should not have been taken.
This submission is, with due respect, incompetent as it is not derived from any ground of this appeal or the issues raised for determination herein. It is trite law that any arguments in any appeal must be derived from issues based on the ground of appeal. Arguments not based on any issues derived from a ground of an appeal are incompetent and must be struck out.
Furthermore, that the pre hearing conference has not commenced is inconsistent with their argument in their initial brief that the pre hearing session commenced on 11th February, 2014. A party must be consistent in his case and cannot change midstream, the premise of his case. His case must succeed or fail on the premise upon which his case was ab initio founded. To raise in a reply on point of law, such an alternative argument on the basis of a shift of premise from the one on which issue number 2 was based, amounts to speculation and an unwillingness to concede to the failure of the premise on which the issue was floated, even when it has become obvious. For these reasons I therefore strike out the above submission. I fail to see how the Appellants can rebut the presumption of regularity and validity of the pre hearing conference of the Tribunal and the presumption of correctness and validity of judicial decisions by speculating that the pre hearing commenced on 11th February, 2014 or did not commence at all. The duty to rebut this presumption belongs to the party who asserts that the judicial or official act is not valid. The Appellant has not produced the required legal evidence of the date of the commencement or non commencement of the conference except that he relies on the agreement of Counsel to declare it as having commenced or the disputation of some Counsel that the date of commencement is not proved to argue that it has not commenced. In light of the foregoing, issue number 2 is resolved against the Appellants. Let me now consider issue number 4 which asks whether the Lower Tribunal has the jurisdiction to determine issues without having considered the submission of the Appellants. The learned Senior Advocates for the Appellants argued that the submissions of the Appellants in response to the applications of the Respondents to strike out some paragraphs of the petition were not considered by the Trial Court in its judgment determining the said applications and that it was a one sided and biased decision and therefore a gross breach of the Appellants’ right to fair hearing. He referred to two issues in respect of which the Ruling did not consider their submission as follows: 1. The first is their argument that the petition does not have paragraph 14(E) aa to aj. He submitted that this was not recognized by the Tribunal which still went ahead to grant the Respondent’s objection and struck out the said non-existent paragraph. 2. The second is the argument on the objections to paragraph 15(V), B(I), C(I) and (II) at page 16 and paragraph 18 (IV) at page 23 of the petition. It was ignored and the above mentioned paragraph struck out for lack of specificity. The learned Senior Advocate also submitted that the Tribunal only summarized the submissions of the Respondents and did not summarize that of the Appellants. The Learned Senior Advocates for the 1st, 2nd and 4th Respondents have argued in reply that the Trial Tribunal considered the submission of all parties in its judgment. The Learned Senior Advocate for the 4th Respondent even referred to parts of the judgment in which the Tribunal expressly referred to the address of the learned Senior Advocate for the Appellants. The learned Senior Advocate for the Appellant did not refer to the part of the record of this appeal containing his submissions on these issues, that were not considered. Having submitted that he made submissions on these issues and the said submissions were not considered, it became incumbent on learned Counsel to refer us to those submissions and where they are, considering especially that he made more than one address, both written and oral. We are left to forage through the mass of addresses in the records to find where the learned Senior Advocate made those submissions. My search yielded no result. Be that as it may, what is clear from the judgment of the Trial Court is that the Tribunal, after identifying the motions argued by the Respondents and the Reliefs prayed for, stated that “at the hearing, learned Senior Counsel on both sides in moving or opposing the application, adopted the affidavits in support as well as the counter affidavit and their respective written addresses in support of their respective positions. The Tribunal considered the positions of both parties i.e. the 1st and 2nd Respondents/Applicants on the one hand and the Petitioners/Respondents on the other hand.” After this statement, it proceeded to summarize the position of the 1st and 2nd Respondents. In dealing with paragraphs 14(E) aa to aj, the Ruling did not indicate that any issue was raised concerning their existence or non existence in the petition. In deciding to strike out paragraphs 14(E) aa to aj and paragraphs 15(V), B(I), C(I) and (II) at page 16 paragraph 18 (IV) at page 23 of the petition, the Tribunal did not refer specifically to the arguments of Counsel on either side. I agree with the view of the learned Senior Counsel for the Appellant that the Tribunal did not summarize the position of the Appellants as it did in respect of the submissions of the 1st and 2nd Respondents in its Ruling. It also did not summarize the position of the 3rd and 4th Respondents in its judgment. The Ruling however referred to the submission of the Appellants on some issues. It referred to the submission of learned Senior Advocate for the Appellants urging the schedules to the petition to be retained as a part of the petition. There is no doubt that the Ruling of the Tribunal did not show an in-depth and comprehensive consideration of every submission of Counsel to all sides on the issues it decided. My impression is that this failure is not one sided in favour or advantage of any one party. All parties were affected. There was no reasonable likelihood that the Tribunal was biased against any particular party. I am therefore not ready to hold that the Tribunal was biased against the Appellants. The appellants have not shown that Tribunal’s evaluation of the submissions of Counsel to all sides prejudiced them in any way. I am not convinced that they did not enjoy equality of alms with the respondents in the hearing and determination of the petition. For the above reasons, I resolve issue No 4 against the appellants. Since issue No 5 touched on matters considered in issues No 6 and 9, to avoid prejudging them, I will consider them before I deal with issue No 5. So I will now consider issue No. 6 which asks whether the Tribunal was right in holding that paragraphs of the petition relating to the qualification of a candidate is a pre-election matter to which it has no jurisdiction. The complain under this issue is against the decision of the Trial Tribunal striking out paragraphs 14 (i)(ii) and (iii) and 23 of the petition on the ground that they are pre-election matters. I have carefully read the above mentioned paragraphs I noticed that paragraph 14(i)(ii) and (iii) relate to issues about voters register and is the subject of issue No 12. It is not relevant to the determination of this issue which relates to the qualification of a candidate. Paragraph 23 of the petition is the paragraph of the petition that alleges that the 3rd respondent is not qualified to be a candidate in the General Election to the office of Governor of Anambra State on the ground that he presented to the 1st respondent a forged certificate or improperly, irregularly and illicitly obtained voters card by means of which he was cleared to contest the said election. This paragraph was struck out by the Tribunal on the ground that it alleges pre-election matters. The Trial Tribunal viewed paragraph 23 of the petition as essentially alleging multiple registration giving false information to the 1st respondent and illicit acquisition of the voters card used to contest under the guise of allegation of lack of qualification to contest. It appears that its decision to treat it as a pre-election matter proceeded from this view. This is clearly borne out by the part of the judgment that held thus- “Having therefore held that issues concerning supplying false information to INEC and multiple registration and or voters card no matter how well disguised is a pre-election matter for the State or Federal High Court over which this Tribunal has no jurisdiction, it is our view that all the paragraphs related thereto in the petition be struck out. We so hold.” However the trial Tribunal even in taking that view recognized, as the opening words of the above portion of the judgment shows, that the appellants are alleging not just that there was multiple registration and or voters card as well as false information to the 1st respondent but that the appellants allege that the said multiple registration or voters card and false information to the 1st respondent ought to have disqualified the 3rd respondent from contesting the election. So in essence the Court struck out the said paragraph on the ground that an allegation that a candidate is disqualified for multiple registration and or voters card and false information to 1st respondent is a pre-election matter. This clarification is important as it will help us understand clearly the decision of the Tribunal on the point to enable the determination of the real issue in controversy here. The Learned SAN for the appellant has argued that what the tribunal ought to do was to look at the claim as framed in the petition and not the merit of it. It should have concerned itself only with whether the claim is covered by S. 138(1)(a) of the Electoral Act 2010. He then submitted that the qualification of the 3rd respondent is not a pre-election matter and urged this Court to resolve this issue in favour of the appellants. The Learned SAN for the 1st and 2nd respondents argued in reply that the qualification of the 3rd respondent is a pre-election matter that has been decided by the High Court of Anambra State and that the Tribunal was bound to give effect to that judgment by virtue of S. 287(3) of the 1999 Constitution, as amended. He then submitted that the trial Tribunal was right when it struck out the said paragraph on the ground that it is a pre-election matter. The Learned Senior Advocate for the 3rd respondent argued that the appellants predicated their challenge to the qualification of the 3rd respondent on the alleged false information given to the 1st respondent by the 3rd respondent regarding alleged multiple registration. He then submitted that “By virtue of S. 31(5)and (6) of the Electoral Act if the appellant had reasonable grounds to believe that any information given by the 3rd respondent to 1st respondent is false they ought to have gone to the High Court to ask that he be disqualified. It is the High Court and not the election tribunal that has the power to disqualify a candidate for giving false information. The Learned SAN also relied on the Anambra State High Court decision in OLI V. CHIEF WILLIE MADUABUCHI OBIANO (suit No OT/140/2013) which held that the 3rd respondent did not engage in multiple registration or voters cards and did not give false information to the 1st appellant and was qualified to contest the election. Another submission of the Learned SAN is that where election has taken place, the matter of disqualification of a candidate for giving false information to the 1st respondent becomes foreclosed or barred and that failure to initiate a suit and obtain an order disqualifying the 3rd respondent from contesting the election before the holding of the election is fatal in the sense that the issue has now become barred or foreclosed. The Learned SAN for the 3rd respondent also submitted that the issue of alleged multiple registration is a criminal matter under Ss 16(2) and (3) of the Electoral Act 2010 and that the 3rd respondent has not been found guilty of same and convicted. The Learned SAN further submitted that the Trial Tribunal lacked the power to reopen the issue of the disqualification of the 3rd respondent by reason of the alleged multiple registration and giving of false information as the same had been decided by the High Court of Anambra State and that the Tribunal cannot sit in appeal over the judgment of the High Court. The Learned SAN then submitted that the said judgment of the High Court is valid, subsisting and binding on the parties until it is set aside. According to the Learned SAN it is a judgment in rem and not one in personam and should reign Supreme on the issue of qualification of the 3rd respondent to contest the office of Governor of Anambra, especially on all matters directly or incidentally related to the allegation of multiple registration by the 3rd respondent. The judgment being one in rem attaches to the status of the subject matter. The Learned SAN then concluded by submitting that by S. 173 of the Evidence Act, 2011 every judgment is conclusive proof as against the parties and privies of facts directly in issue in that case, actually decided and appearing from the judgment itself to be the ground on which it was based. The Learned SAN for the 4th respondent argued that by virtue of the 1999 Constitution, the only ground for disqualification of a governorship candidate is as provided in Ss. 177 and 182 of the said Constitution and that the word ‘certificate’ in those Sections of the Constitution refer only to educational certificate and no other type of certificate. According to him, the intendment of Ss. 177 and 182 is to ensure that certain educational standard is attained by a person seeking to hold the office of Governor and that therefore by the rule of exclusion interpretation, the provisions of Ss. 177, 182 and 118 of the Constitution cannot accommodate any other certificate that is not educational certificate. He then submitted that the paragraph of the petition cannot in the circumstances be covered by S. 138(i) of the Electoral Act. The Learned SAN then referred to the decisions in Uduma v. Arunsi (2012)7 NWLR (pt. 1298) 55 at 131 relying on other decisions where it was held that the issue of qualification, disqualification, nomination, substitution and sponsorship precedes election and are pre-election matters and that the Tribunal was right in striking out the paragraphs of the petition which complained of forgery of voters card. Such complain is caught by S. 31(5) of the Electoral Act. It is obvious that paragraph 23 of the petition alleged that the 3rd respondent was not qualified to contest the election on the grounds that he presented a forged certificate or illicitly acquired voters card to the 1st respondent, he was cleared to contest the election by means of the illicitly acquired voters card, he was involved in multiple registration and had multiple voters cards and gave false information to the 1st respondent.
S. 138(i)(a) of the 2010 Electoral Act (as amended) provides that an election may be questioned on the ground that a person whose election is questioned was, at the time of the election, not qualified to contest the election.” There is nothing in this clear provision suggesting that it shall apply with regard to the reasons for contending that the person is not qualified to contest election. So there is no basis for the distinction between the reasons based on the provisions of the Constitution like S. 182(i)(j) of the 1999 Constitution of the Federal Republic of Nigeria and those based on the provisions of the 2010 Electoral Act like S. 106(b) and S. 107 (i)(h) or between any reasons at all. The reasons stated in paragraph 23 for alleging that the 3rd respondent was not qualified to contest the election are founded on both the provisions of the Constitution and the Electoral Act. It is glaring from the clearly expressed words of S. 138(i)(a) of the 2010 Electoral Act that the election of a person can be questioned on the ground that he was not qualified to contest the election. In the light of this provision there is no basis for the decision of the Tribunal and the arguments of Learned SANs for the respondents in this appeal that the question of qualification of the 3rd respondent to contest an election is a pre-election matter that cannot be raised after the election. The Supreme Court in PDP V. SARROR & ORS SC/381/2011 and SC/383/2011 delivered on 28-11-2011 held per Dahiru Musdapher CJN “there is no dispute whatever that the Tribunal can deal with the issue of the qualification of a candidate to contest the particular election and that it does not matter whether the impediment is Constitutional or otherwise to dismiss the petition at that stage without hearing evidence against the clear wording of S. 138(1) of the Electoral Act is clearly wrong. The issue of qualification of a candidate to contest an election is clearly within the jurisdiction of the Tribunal.” In that case the petitioner questioned the election of Hon. Gabriel Yorwua Suswan as Governor of Benue State on ground that he presented a forged certificate to the Independent National Electoral Commission. The Trial Tribunal upon a preliminary objection by the respondents dismissed the petition on the ground that the presentation of a forged certificate was a pre-election matter and not subject to the jurisdiction of the Tribunal. On appeal to this Court against that decision, this Court allowed the appeal. This led to the further appeal to the Supreme Court which held that it is not a pre-election matter as it is a valid ground for questioning the election of a person. See also the Supreme Court decisions in DANGANA V. USMAN (2013) 6 NWLR (PT. 1349) 50 AT 89-90 AND SALIM V. CPC (2013) 6 NWLR (PT.1351) 500. There is nothing in S. 138 of the 2010 Electoral Act suggesting that it is subject to S. 31(5) and (6) or any part of the Electoral Act or suggesting that a petitioner cannot question the election of a person on grounds of qualification to contest for the reason of giving false information or presenting a forged certificate or an invalid voters card to the Independent National Electoral Commission unless he exhausts the remedy provided in S. 31(5) and (6) and obtains an order from the High Court disqualifying such person before the election. There is nothing in S. 31(5) of the Electoral Act suggesting that if a person fails to exercise the right provided therein, he cannot question the election of a person on the ground that he was not qualified to contest due to the facts constituting the false information he gave to the 1st respondent. S.31(5) did not create a mandatory duty to apply to the High Court to seek a declaration that the information is false. It created the right and left the exercise of it at the discretion of any person. This is obvious from the use of “may” in creating and prescribing the exercise of that right. So the fact that a petitioner chose not to exercise that right before the election, does not disable him in any way from questioning the election of a person on ground of qualification to contest the election, after the election. He can. That is what S. 138(1)(a) 2010 Electoral Act says. See SALIM V. CPC (supra). Let me now shift my attention to the submissions on the effect of the judgment of the Anambra State High Court in OLI V. CHIEF WILLIE M. OBIANO & ANOR (Suit No. OT/140/2013) which decided that the 3rd respondent was not involved in multiple registration, satisfied the requirements of S. 177 of the Constitution, was not affected by any of the provisions of S. 182 of the Constitution and therefore was qualified to contest the election. There is no doubt that it is a valid and subsisting judgment of the High Court. But can it operate as to estop or preclude the appellants from questioning the election of the 3rd respondent on the ground that he was not qualified to contest the election for the reason that he presented a forged certificate or illicitly acquired voters card or invalid voters card to the 1st respondent by means of which he was cleared to contest, that he gave false information to the 1st respondent and that he was involved in multiple registration. I do not agree with the submissions of the Learned SANs for the respondents that the said judgment can estop the trial of paragraph 23 because the parties in that case are different from the ones here. There is nothing to show that the appellants are privies to any of them. The plaintiff in that case described himself as a card carrying member of the 4th respondent. The reasons alleged for challenging his qualification in paragraph 23 of the petition in this case were not raised, tried or decided in the High Court suit and judgment. These include the allegation that the voters card he submitted to the 1st respondent and by which he was cleared to contest was forged or illicitly acquired and invalid, that he gave false information to the 1st respondent.
It is trite law that a previous judgment can only constitute a valid basis for a successful plea of res judicata in a proceedings, if the parties, subject matter, issues or questions are the same in the two cases. If one or two of these conditions do not exist, then the judgment cannot found the plea of res judicata. See the decisions of the Supreme Court in OGBOGU & ORS V. NDIRIBE & ORS (1992)6 SCNJ 301 AND AJUWON & ORS V. ADEOTI (1990)3 SC (PT 11) 76. By S.173 of the 2011 Evidence Act, every judgment is conclusive proof as against the parties and privies, of facts directly in issue in that case, actually decided and appearing from the judgment itself to be the ground on which it is based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment intended to be proved. Before I conclude my consideration of this issue, let me comment on the submission of the Learned SAN for the Appellant that the issue of alleged multiple registration is a criminal matter under Ss. 16(2) and (3) of the Electoral Act 2010 but that the 3rd respondent has not been found guilty of same or convicted. I agree that it is a criminal offence. It is an electoral offence. There is no law stipulating that unless the elected person had been convicted of multiple registration it cannot be relied on in an election petition. In the light of the foregoing, I resolve this issue in favour of the appellants. The order striking out paragraph 23 of the petition is hereby set aside. The said paragraph is hereby restored as part of the petition to be tried by the Tribunal. I will now consider issue No 7 which asks whether the lower Tribunal was right in striking out the schedules referred to in the pleadings. The appellants in their petition adopted the procedure of attaching to the petition under schedules the documents containing the details of the facts pleaded in the body of the petition, stating in the relevant paragraph of the petition that the details of the pleaded facts contained in the schedules annexed to the petition form part of the facts so pleaded in the body of the petition. The schedules were annexed to the petition and filed along with the main body of the pleadings in the petition as one bundle of document forming the petition. There are five of such schedules. Schedule 1 referred to in paragraph 14(iv) page 7 of the petition as containing the extract of a report indicating the details of the polling units affected by the defective voter register. Schedule 2 is referred to in paragraph 15A(v) at page 15 of the petition as containing duplicate result sheets containing the polling units, electoral wards and local government areas affected by the non compliance with the Electoral Act. Schedule 3 is referred to in paragraph 18(1) at page 23 of the petition. The Learned Senior Advocate for the appellants has stated that the appellants adopted this procedure so as not to make the paragraphs of the petition unwieldy and at the same time ensure that the pleadings are specific, clear and not vague and imprecise. He referred to the judicial authorities of DINGYADI V. WAMAKO (2008) 17 NWLR (PT.1116) 395 AT 444 AND IFEADI V. ATEDZE (1998) 13 NWLR (PT 581) 205 and the ual authority of Pleadings without Tears 8th Edition page 34 by William Rose on that approve this procedure. The Learned Senior Advocate for the 1st and 2nd respondent has argued that paragraph 4 of the First Schedule to the Electoral Act which prescribes what a petition should contain did not provide that such schedule of documents shall form part of the petition. He relied on the decision of this Court in UDUMA V. ARUNSI (2012) 7 NWLR (PT 1298) 55 AT 109 that the practice is prohibited. He urged that the decision of the trial Court striking them out be sustained. The Learned Senior Advocate for the 3rd respondent argued that the documents in the schedules should just have been pleaded and tendered as evidence at the trial and that there was therefore no need to attach them to the petition. He argued that the innovation does not serve the purpose of pleadings and puts the respondents to great injustice and difficulty. He also relied on paragraph 4 of the First Schedule and the case of UDUMA V. ARUNSI (supra). The Learned Senior Advocate for the 4th respondents argued that the documents in the schedules were not listed or front loaded, that the procedure adopted by the appellants is not supported by the decision of this Court in UDUMA V. ARUNSI (supra) which was later in time than the cases of DINGYADI V. WAMAKO (supra) AND IFEADI V. ATEDZE (supra) and that the book Pleadings Without Tears is based on English White Book and not the rules of Nigerian Courts. He also relied on UDUMA V. ARUNSI (supra) to submit that a party does not attach documents to his pleadings. Let me quickly point out here that the submission of the Learned SAN for the appellants that he adopted this procedure to avoid vague and imprecise pleadings as to polling units and areas affected by certain non-compliance with the Electoral Act cannot be valid in respect of Schedules 3 and 4. The documents therein do not contain particulars or list of items or places or polling units that may be too many to enumerate in the body of the pleadings. The document in Schedule 3 is the print out of a of an interview of the 2nd respondent by Sahara TV. It is pleaded in paragraph 18(i) of the petition and extensive portions of the is reproduced in the body of the pleadings. The document in Schedule 4 is the transcript of the interview of the Chairman of the 1st respondent by AIT on Sunday 17th November, 2013. It is pleaded at paragraph 20 page 29 of the petition. I do not see any special need for the attachment of these two documents to the petition. Without their being attached, the pleading of the facts relating to them cannot be rendered vague or imprecise. Attaching them to the petition clearly serves no purpose. In any case they can be tendered in evidence. For this reason I affirm the decision of the Tribunal striking out Schedules 3 and 4. Even though the schedules have been struck out, the appellants can still use the two documents in prosecuting their petition by tendering them in evidence if they are legally admissible evidence. The explanation of the Learned SAN for the appellants for attaching the documents in schedules 1, 2 and 2A to the petition is reasonable. The document in schedule 1 is a list of the polling units affected by the use of a defective voters register and a list of the nature of the anomaly occasioned by the use of such register in the polling units listed therein. It is a 19 pages computer generated document. It is pleaded in paragraph 14(iv) page 7 of the petition. It is obvious that it will be imprecise and vague to allege that the elections were affected in many polling stations without stating the name of the polling stations and the nature of the problem suffered in that unit. The documents in Schedules 2 and 2A are duplicate result sheets for so many Local Government Areas, wards and polling units where it is alleged that the number of voters cast exceeded the number of accredited voters. It is a 13 pages printed document. It is pleaded at paragraph 15(A)(V) at page 15 of the petition. It is also obvious that it will be imprecise and vague to allege that votes cast were more than the accredited voters in very many Local Government Areas, wards and polling units without naming the Local Government Areas, wards, polling units, votes casts and accredited voters in each unit. Considering the huge data in those documents, it is obvious that it will be very cumbersome if not impossible to state such massive factual details in the body of the petition. If it is done, the petition will surely be very unwieldy. Yet if all the details are not stated therein, the pleading may be struck out as was done by the tribunal for being vague and imprecise. There is no doubt that in such circumstance the petitioner is clearly in a dilemma. The appellants adopted the procedure of attaching these documents to their petition to save themselves from this dilemma. I have continued to wonder why the respondents did not apply to the Tribunal to order the petitioner to file further and better particulars of the facts pleaded vaguely and imprecisely in the petition. Is that the appropriate response to vague or imprecise pleading of facts in the petition. Is striking out of the vague facts what is just in the circumstance. If pleadings in the petition do not contain facts that disclose a cause of action, then the petition has to be dismissed for non disclosure of cause of action. If the petition contains facts that disclose a cause of action, then the case as pleaded must be tried however weak or tenuous. If any fact pleaded in the petition is imprecise or vague, its trial cannot be avoided by striking it out for being vague or imprecise not withstanding that it disclosed a cause of action or is a material fact in the case. A pleading of a material fact is said to be general or vague or imprecise because the statement of facts does not contain enough details of the facts alleged, so that the issues of fact to be tried are not clearly and specifically defined and delimited. Although the pleading of the material fact has given the respondent sufficient notice of the case against him, but it does not disclose the specific details to him. This lack of specific details may result in the respondent being taken by surprise during trial.
Generally, Rules of High Courts are not silent on what should be done where pleading of a material fact is vague or imprecise. There is hardly any High Court Civil Procedure Rules that do not contain provisions on what should be done. I will use the example of the Federal High Court (Civil Procedure Rules) 2009 because paragraph 54 of the 1st Schedule to the 2010 Electoral Act permits that -“Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.” Order 13 Rule 18 of the said Federal High Court (Civil Procedure) Rules provide what should be done if a pleading is vague. “It states that- “The Court, if it considers that the statement of claim and the defence filed in any suit insufficiently disclose and fix the real issues between the parties, may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.” No part of the said Rules provide that the pleading of a material fact can be struck out for being general, vague or imprecise. Order 13 Rule 20 which provides for striking out of pleadings states that- “The Court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as the case may be, or on the ground that it is embarrassing, or scandalous or vexatious or an abuse of the process of the Court; and the Court may either give leave to amend the pleading, or may proceed to give judgment for the plaintiff or the defendant, as the case may be, or may make such other order, and upon such terms and conditions, as may seem just.” There is nothing therein suggesting that the Court can strike out any allegation of material facts if they are vague or imprecise. Let me come back to the First Schedule to the Electoral Act that primarily regulate the practice and procedure of the Tribunals and Courts in the hearing and determination of Election Petitions. Paragraph 4(1)(d) and (2) prescribes how facts are to be stated in the petition. It states that -“paragraph 4(1)(d) that an election petition under this Act shall state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petition. In paragraph 4(2) it states that “the election petition shall be divided into paragraphs each of which shall be confined to a distinct issue or major facts of the election petition, and every paragraph shall be numbered consecutively! In paragraph 5 it provides that the Tribunal may order further particulars to prevent surprise and unnecessary expense and to ensure fair and proper hearing of the petition. It states that- “Evidence need not to be stated in the election petition, but the Tribunal or Court may order such further particulars as may be necessary. (a) to prevent surprise and unnecessary expense; (b) to ensure fair and proper hearing in the same way as in a civil action in the Federal High Court; and (c) on such terms as to costs or otherwise as may be ordered by the Tribunal or Court.” So both the First Schedule to the 2010 Electoral Act and the Federal High Court (Civil Procedure) Rules that compliment it do not provide for the striking out of any allegation of a material fact in the petition for being vague or imprecise. The two Rules ordered to file further particulars to ensure a fair and proper hearing of the petition. The respondents instead of applying for the vague and imprecise paragraphs to be struck out, should rather have applied that the petitioner be ordered to furnish further particulars of the facts generally pleaded. They did not do so. When they rather applied for striking out of those paragraphs, the Tribunal had the duty to refuse their application and on its own, order that the petitioners furnish them with further particulars. In any case, the petitioners were as of right entitled to be heard on the petition as so pleaded. If the respondents failed to apply for the order of further particulars and none is ordered, the petitioners will enjoy a limitless latitude to introduce in evidence, facts in support of the said material allegations.
The notion of further particulars is meant to protect the party against whom the allegation is made, by availling him an opportunity to limit the ability of the petitioner to lead evidence of facts at large and limit the trial only to the specific facts in the further particulars. See Ayeni & Ors v. Sowemimo (1982) 5 SC 60 at 76 which the Supreme Court followed the decision of the West African Court of Appeal in Oguntokun v. Rufai (1945)11 WACA 55 at 66 & 67 that “where a party omits to set out details which he ought to have given and his opponent does not apply for particulars, he is entitled to give evidence at the trial of any fact which supports the allegation in the pleading.” See also A.G Bendel State v. Aideyan (1989)9 SC 127. If a party is ordered to furnish further particulars, he has to furnish the further particulars. If he fails to do so, then he cannot lead evidence on the allegation of material facts in respect of which further particulars are required. See A.G. Leventis Nig. PLC v. Akpu (2007)6 SC (pt. 1) 239. If he furnishes the further particulars, he cannot give evidence on any fact outside the further particulars given.
It does not help the course of justice where a Court or Tribunal avoids the use of a mechanism expressly provided for by the Rules for the treatment of vague and imprecise allegation of material facts to ensure a fair and proper trial of all the issues in a case before it and resort to procedures that are not provided for by the rules to avoid the trial of material allegations in a petition. The trial of election petitions must have regard to the sui generic nature of election petitions. The petition has to be heard and concluded within 180 days from the date of filing it. Elections involve large scale of activities and information. So legal practitioners representing the parties to a petition are faced with a huge mass of information to study, organize, plead and present their clients’ cases within very tight time schedules. In that atmosphere, they can hardly enjoy the opportunity of serene and careful study of the papers. As humans they are bound to make errors in that atmosphere of urgency. So it will hardly help the expeditious and meritorious hearing of any election petition to dwell on errors of procedure in the presentation of a petition instead of focusing completely on the hearing and determination of the real issues in controversy. The statement of this Court in UDUMA V. ARUNSI & ORS (supra) provide a useful guide on how to deal with this situation. It stated that Electoral petitions are sui generic. Their very nature makes them peculiar and sometimes the general statement of the law applicable in ordinary civil litigation may not be Justice in election proceedings. There is no doubt that in general civil litigation, it is not usual to attach pleaded documents to the pleadings so as to incorporate their contents as part of the body of pleadings. Such procedure is not provided for in our rules. The practice of frontloading processes in commencing civil suits which has gained currency now in our Courts, involves filing list of witnesses, witness statements on oath, list of documents to be relied on in the case and copies of such documents along with the originating process to commence the suit. This practice is equally prescribed by paragraph 4(6) of the 1st Schedule to the Electoral Act. But the paragraph did not state that the documents attached form part of the facts contained in the pleading. The practice of attaching the documents to the pleadings as part of the pleaded facts therein is novel. The Trial Tribunal was right to have held that the procedure is an unknown innovation outside the purview of the First Schedule. But is that a good reason for striking out the schedules attached to the petition? I do not think so. As the Supreme Court held in OJUKWU V YARADUA (2009) 12 NWLR (PT1154) 50, “Counsel has the right to introduce innovations in procedure of courts where the Rules are silent on a particular procedure to be adopted. Where the Rules specifically provide for a procedure, innovations of counsel outside the specific rules go to no avail.” The decisions of this Court in DINGYADI V. WAMAKO (supra) AND IFEADI V. ATEDZE (supra) cited by the Learned SAN for the appellants as authority for this procedure adopted by the appellants did not deal with this kind of situation and made no pronouncement on the point. Considering that the First Schedule to the 2010 Electoral Act which prescribe the rules of Procedure for Election Petitions did not provide for this procedure, I do not agree with the decision of the Trial Tribunal that the attachment of the documents as Schedules to the petition is irregular. Assuming they were irregular, was the Tribunal right in striking them out for the only reason that they were irregular without considering the Justice of the situation. The attached documents are not yet in evidence. The respondents suffered no prejudice by an attachment that gave them adequate notice of the details of the material allegations against them. I think that it is in the best interest of substantial justice that schedules 1, 2 and 2A be allowed. A distinction must be made between vague, imprecise, ambiguous terminologies used to state a ground for a petition and allegations of material facts in support of a ground for a petition. The grounds for a petition is a matter statutorily regulated by S.138 of the Electoral Act 2010. Petitions can be presented only on the basis of one or more of the grounds stated in S. 138. The ground for the petition must be stated in terms clear enough as to bring it within one of the grounds listed in S. 138 of the Electoral Act. If it is expressed in terms that do not show that it is one of the grounds listed in the petition, then it can be struck out as such statements, which often are vague judgments of the election process, are not material allegations of facts. Such grounds are clearly not triable. See OJUKWU V. YARADUA & ORS (2009) 12 NWLR (PT 1154) 50 where the Supreme Court had to deal with such bogus, vague, generic and nebulous terms like “minimal requirements of electoral democracy and the law and Electoral Act,” “rudimentary requirements of fairness and equal treatment provided by the Constitution and the Electoral Act” in describing the grounds for a petition. It held that the grounds so described are not grounds for questioning an election under S. 145(1) of the 2006 Electoral Act. The requirement of further particulars do not apply to such allegations. For it is settled law that further particulars cannot be used to amend a pleading or create a cause for action where non-existed in the first place. Where however a ground for a petition as couched is clearly one of the grounds for questioning an election under S. 138 of the 2010 Electoral Act, allegations of material facts in support of such ground cannot be struck out for being vague, imprecise or general. Further particulars of the details of the facts generally pleaded should be ordered. For the above reasons I hold that the decision of the trial Court striking out schedules 1, 2 and 2A is wrong. The Order striking them out is hereby set aside. They are hereby restored as part of the facts as pleaded in the petition of the appellants. Issue no. 7 is resolved in favour the appellants. Let me now consider issue No 8. The Learned SAN for the appellant has argued that the Tribunal having held that “paragraphs 14(IV)A,B,C,D,E,F,G,H(i), (iv), (vi), (viii), (x) and 15 (A)(i) at pages 7-14 of the petition relate to the register of voters used during the election do not relate to pre-election matter, the said paragraphs therefore remain and are hereby sustained,” should not have subsequently in the judgment, turned around to hold that “paragraph 14(E) aa to aj at pages 9-11 and paragraph 23 at pages 37-39 of the petition have earlier been held to constitute pre-election matters.” It is obvious from the record of this appeal that paragraphs 14(E) aa to aj are between paragraphs 14(IV) E and F. The implication of this is that they were part of the paragraphs the trial Tribunal had earlier adjudged not to be related to pre-election matters and sustained. I think that the submission of the Learned SAN for the appellant that the later decision contradict the earlier one is valid. I do not agree with the submission of the Learned SAN for 1st and 2nd respondents that this is a slip in judgment. The later decision should not have been made. As the Supreme Court held in NWOGA V. BENJAMIN (2010) ALL FWLR (PT 518) 924 AT 947 “a Court of law has no jurisdiction to reopen an issue upon which it has made a determination within the same proceedings or to alter the effect of its decision in a matter. With due respect to the Tribunal the view expressed at page 48 of the record was clearly misconceived.” I have already held that paragraph 23 was wrongly struck out by the trial Tribunal so I consider it unnecessary to consider the argument of the Learned SAN for the appellants that the striking out of that paragraph conflicts with its decision to consider the judgment in OLI V. OBIANO pleaded by the respondents in response to the paragraph 23 of the petition. I resolve this issue in favour of the appellants. The order striking out paragraph 14(E) aa to aj is hereby set aside. The said paragraphs are restored as part of the petition before the Tribunal. I will now consider issue 9. The Learned Senior Advocate for the 1st and 2nd respondents has argued that the arguments of the appellants under issue No 9 conflict with the issue itself. According to him, while the issue questions the validity of striking out paragraph 17(15)(i) to (v) of the petition, the arguments thereunder content that the paragraphs were not struck out. The Learned Senior Advocate for the appellants did not respond to the above submission. I am in complete agreement with this submission of the Learned Senior Advocate for the 1st and 2nd respondents. I will therefore discountenance the arguments for being inconsistent with the issue under which they were made. Issue No 9 is resolved in favour of the respondents. I will now consider issue No. 10. The Learned SAN for the appellants argued that a complain about the ad-hoc staff used for the conduct of the election and the fact that they were deliberately recruited to work in favour of the 3rd respondent is not a pre-election matter and so the Tribunal was wrong to have struck out paragraph 17(15)(V)(a), 15(A)(V), B(I)(i) and (ii) of the petition that contains that complain as dealing with a pre-election matter. According to the Learned SAN Ss. 28 and 29 of the Electoral Act make provision for the appointment staff including ad-hoc staff to be used for an election and make it mandatory for such officer to affirm to swear to an oath of neutrality. This step is part of the election process and is very vital in determining the validity of the decision. The Learned SAN also submitted that paragraph 14(A)(V) is not vague as they are clarified by schedule 2 attached to the petition. The Learned SAN for the 1st respondents argued that the events alleged in paragraph 17(15)(V)(a), 15(A)(V), B(I), C(I) (II) of the petition occurred before the election and that the decision of the Tribunal that they are pre-election matters should be sustained. I have carefully gone through the petition it is glaring that the events alleged in paragraph 17(15)(V)(a) and paragraph 15(A)(V), B(I)(II) related to the holding of the election in issue in the case leading to this appeal. The Tribunal was clearly wrong to have treated the events as pre-election matters over which it has no jurisdiction. The order striking out these paragraphs is set aside. The said paragraphs 17(15)(V)a, 15(A)(V), B(I),C(I)(II) are restored. Issue No 10 is resolved in favour of the appellants. Let me now consider issue No. 11. The trial Court held that “With regard to prayers 8, 9, 10, 11, 12 and 13 on the motion paper relating to paragraphs of the petition in which criminal allegations were made against various individuals named therein without any of them having been joined as respondents to the petition, this Tribunal has earlier held in our considered ruling in NWOYE V. INEC & ORS that it is a violation of the right to a fair hearing of the named individuals enshrined under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Going by the cases of KALU V. CHUKWUMERIJE (2012) 12 NWLR (PT. 1315) 425 AND PDP V. INEC (supra), once the named individuals are not joined as respondents in order that they may be able to defend themselves against such serious criminal allegations, the affected paragraphs are deserving of being struck out. It was not alleged that they were INEC officials who needed not be made respondents by virtue of Section 137(3) of the Electoral Act 2010. They are therefore necessary parties. The cases of OBASANJO V. YUSUF (supra) and BUHARI V. YUSUF (supra) commended to the Tribunal by the petitioners on this issue are distinguishable. In this petition, specific individuals were named and alleged to have engaged in criminal conducts during the election and not just an amorphous group of persons. The affected paragraphs are consequently struck out.” The Learned SAN for the appellant in challenging this part of the ruling in his arguments under this issue, did not refer to any specific paragraph of the petition that was struck out as containing criminal allegations against named and identified persons except paragraph 21(B)(I) which he argued did not contain any criminal allegations apart from alleging that the 4th respondent’s party chieftains moved about polling vicinities with Policemen and Armed Security operators. There is no factual foundation for the many judicial authorities he cited therein. In any case, it is obvious from the above part of the ruling of the Tribunal, that by inductive reasoning it applies only to those paragraphs containing criminal allegations against named and identified individuals. Issue No 11 is resolved against the appellants. Let me deal with issue No 12. Under this issue, the appellants complain against the decision of the Tribunal striking out paragraphs 14(I), (II) and (III) of the petition as dealing with pre-election matters. I have carefully read the said paragraphs of the petition. They contain allegations of events of 13th and 16th October 2013 and 13-11-2013 concerning the e-copy of the Anambra State voters register to be used for the next day’s election. The decision that the paragraphs relate to pre-election matters is not borne out by the content of those paragraphs. Such a decision is clearly not correct. Since those allegations concern the voters register to be used for the election, they cannot be treated as relating to pre-election matters. See OKE V. MIMIKO (NO 2) (2014) NWLR (PT 1388) 332 AT 383. The Tribunal held that paragraphs 14(IV) A, B, C, D, E, F, G, H(i), (IV), VIII), (IX), (X) and 15(A) (I) at pages 7-14 of the petition relating to voters registers used during the election do not relate to pre-election matters. I can hardly see the reason for this differentiation between the first three sub paragraphs of paragraph 14 and the remaining sub-paragraphs since they all relate to voters register for that election. For the above reasons, I hold that paragraph 14(i), (ii) and (iii) do not relate to pre-election matters. The trial Court was wrong to have struck them out as relating to pre-election matters. The Order striking them out is hereby set aside. The said paragraphs are hereby restored as part of the appellants petition. Issue No 12 is resolved in favour of the appellants. In the light of the foregoing determinations, it will serve no purpose considering issue no 5. On the whole, the appeal succeeds in part. Issues Nos 6, 7, 8, 10 and 12 are resolved in favour of the appellants. It is hereby ordered that the Orders striking out paragraphs 14(I),(II)(III), 14(E) aa-aj, paragraphs 17(15)(V)(a), 15(A)(V), B(I),C(I)(II), 23 and Schedules 1, 2 and 2A are hereby set aside. It is hereby further ordered that the said paragraphs and schedules are restored as part of the petition in EPT/GOV/AN/02/2013 before the Governorship Election Petition Tribunal at Awka. The parties shall bear their costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I have had the advantage of reading in advance the judgment delivered by my Noble Lord, AGIM, JCA. I entirely agree with the judgment and I fully endorse all the consequential orders therein contained.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading before now, the judgment delivered by my brother, Agim, JCA. I agree entirely with his reasoning and conclusions.
Appearances
Oluwarotimi O. Akeredolu SAN, Emeka Ngige SAN with M. F. Lana, Ngozi Udodi (Miss), Bona Oraekwe Esq; and Tochukwu Odo Esq.For Appellant
AND
Ahmed Raji SAN with Osinachi Nwoye, Ayofunde Ogunleye Esq, Akinyosoye Arosanyi Esq, Kayode Ohejo Esq and Nneka Nobis-Elendu (Mrs) for the 1st and 2nd respondents.
Dr. Onyechi Ikpeazu SAN, A. C. Anaeneugwu SAN, Chudi Obieze Esq, Vera Okonkwo (Mrs), O.M. Onyia Esq, for the 3rd respondent.
O. J. Nnadi SAN with C. N. Abiakam (Mrs) and A. U. Obidiegwu Esq, for the 4th respondent.For Respondent
