3PLR – ABIODUN OLAOSEBIKAN V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ABIODUN OLAOSEBIKAN
V.
INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 29TH DAY OF OCTOBER, 2009
CA/I/EPT/HA/6/2008
3PLR/2009/2 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
CLARA BATA OGUNBIYI, JCA
ISTIFANUS THOMAS, JCA
SIDI DAUDA BAGE, JCA
BETWEEN
ABIODUN OLAOSEBIKAN – Appellants
AND
(1) INDEPENDENT NATIONAL ELECTORAL COMMISSION
(2) TITI OSENI
(3) PEOPLES DEMOCRATIC PARTY (PDP) – Respondents
REPRESENTATION
- A. Yesufa, Esq. – For Appellant
AND
- F. Ogunlesi (Miss) – For Respondent
MAIN ISSUES
ELECTION PETITIONS – SECTION 144 (1) OF THE ELECTORAL ACT, 2006:- Who can file an election petition – Whether a candidate or political party can jointly or separately file a petition – Whether mandatory for a candidate to amplify the party that sponsored him in an election in founding his locus standi to bring an election petition – Importance of locus standi as it relates to jurisdiction of a court to hear a matter
ELECTION PETITIONS:- Interpretation of Section 144 (1) of the Electoral Act – Community reading of the provision – – Use of “or” in reference to candidate and the political party – Whether are made disjunctive and not conjunctive –
ELECTION PETITIONS:- Section 144(2) of the Electoral Act – Common Law Principle that no agent of a disclosed principal need to be joined in an action which can be pursued against principal – Implications for necessary parties to an election petition
CONSTITUTIONAL LAW:- Section 106 of the Constitution – Implications for Section 144 of the Electoral Act and Paragraph 4(1) (b) of the First Schedule to the Electoral Act, 2006 – A Petitioner’s right to present a Petition – Whether is not a common law right but a right created by statute
PRACTICE AND PROCEEDURE – ACTION – JOINDER OF PARTIES – Whether there was need to join the individual presiding officers, returning officers and or all other persons who took part in the several electoral malpractices
PRACTICE AND PROCEEDURE – APPEAL – ISSUES FOR DETERMINATION:- Whether appellate court is duty bound to take all issues as formulated by the parties
PRACTICE AND PROCEEDURE – EVIDENCE:- Section 73 of the Evidence Act – Rule that fact judicially noticeable need not be proved – Duty of court thereto.
PRACTICE AND PROCEEDURE – EVIDENCE – PROOF:- Admissions – Rule that anything admitted needs no further proof – Legal effect
PRACTICE AND PROCEEDURE – JURISDICTION – LOCUS STANDI: Importance of locus standi as it relates to jurisdiction of a court to hear a matter
PRACTICE AND PROCEEDURE – JURISDICTION – Whether non-joinder of other electoral officers strips this Honourable Tribunal of its requisite jurisdiction to entertain the petition
INTERPRETATION OF STATUTE:- Words in a statute – When should be read together or in isolation
WORDS AND PHRASES – The word “or” – by one or more of the following – Meaning
MAIN JUDGMENT
SIDI DAUDA BAGE, J.C.A., (Delivering the Leading Judgment):
This is an appeal by the Appellant who was Petitioner at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Ogun State, sitting at Abeokuta, in Petition No. EPT/OG/HA/11/2007, against the Ruling of the Tribunal Coram: – Honourable Justices H.M. Tsammani, B. H. Ismail, C. U. Ukpe, U. M. Sadiq, and C. O. Onyeabo, delivered on the 18th of October 2007, on a preliminary objection brought by the 2nd Respondent. The facts leading up this Appeal are briefly set out as follows:-
“Elections were held throughout the Federal Republic of Nigeria on the 14th April, 2007 into the State Legislative Houses of Assembly. The Petitioner/Appellant contested as a Candidate for Ogun State House of Assembly for Abeokuta II Constituency, and at the end of the election, the 1st Respondent, the Independent National Electoral Commission (INEC) declared the 2nd Respondent as the winner of the election.”
Aggrieved by the return of the 2nd Respondent at the said Election, the Appellant filed a Petition No. EPT/OG/HA/11/2007 against the Respondents on the 11th of May 2007, on the following grounds. (In summary):-
“(a) The 2nd Respondent was not elected by the majority of lawful votes cast at the election, as voting was frustrated, and causes of over voting.
(b) That the return of the 2nd Respondent at the election (for Ogun State House of Assembly Abeokuta II) was invalid by reasons of corrupt practices, and non-compliance with the provisions of the Electoral Act, 2006.
The Appellant then prayed the Tribunal that it should be determined as follows:-
“(a) That the purported return of the 2nd Respondent for Abeokuta II of Ogun State Legislative House by the 1st Respondent on the 14th April, 2007, be declared invalid, null and void and of no effect whatsoever, because of corrupt practices and non-compliance with the provisions of the Electoral Act.
(b) An Order of the Tribunal that the 1st Respondent should conduct fresh and new election in the said Constituency following the due process of the law.”
The 2nd Respondent filed an application by way of preliminary objection dated 24th September, 2007. The application is predicated on the following grounds:-
“(1) The Petitioner did not specify his right to present the petition.
(2) The Petitioner failed to comply with the provisions of Section 144(2) of the Election Act 2006, by failing to properly join the individual Presiding Officers, Returning Officers and or all other persons who took part in the conduct of the election and who allegedly participated in the several electoral malpractices in the various Polling Units or Wards in Abeokuta South II State Constituency of Ogun State.
(3) The aforementioned persons are necessary parties for the determination of this Petition.
(4) The Presiding Officers sued as parties to this Petitions are merged or amalgamated together and not specified or pin-pointed to particular Polling Units.
(5) The provisions of Section 144(2) of the Electoral Act does not envisage joinder of persons whose titles are nebulous and at large.
(6) The non-joinder of the said Presiding Officers/Persons strips this Honourable Tribunal of its requisite jurisdiction to entertain the Petition.
(7) The Petition is incompetent and the Tribunal lacks jurisdiction to entertain it.”
The Tribunal entered a considered ruling on this application on the 18th of October, 2007 and struck out the entire Petition. Dissatisfied with the decision of the Tribunal, the Appellant filed his Notice of Appeal dated 7th November, 2007, but filed 8th November 2007. When this appeal came up for hearing on the 29th of September, 2009, A. A. Yesufa, Learned Counsel for the Appellant, adopted and relied on the Appellant’s Brief of Argument dated 14/03/08, but filed on the 17/03/2008. A. F. Ogunlesi (Miss), Learned Counsel for the 2nd and 3rd Respondents, adopted and relied on the Brief of Argument filed on their behalf. She drew the attention of this Court to a Preliminary Objection contained therein. Unfortunately, the Learned Counsel to the 2nd and 3rd Respondents did not proffer any argument to the said Preliminary Objection, but simply adopted her Brief of Argument. The said Preliminary Objection of the 2nd and 3rd Respondents since not argued is by law deemed to have been abandoned.
In accordance with the Rules of this Court, the Appellant filed his Brief of Argument dated 14/03/2008, but filed on the 17/03/2008. Having regard to the Grounds of Appeal filed, the Appellant contend that, the following are Issues arising for determination in this appeal.
(1) Whether in the light of the Supreme Court judgment in Okafor Vs. Okeke (2007) FWLR (Pt. 368) 1016 At 1020, the Learned Justices of the Tribunal were right to have relied on the joint reply on the records for the 3rd and 13th Respondents dated 13th June, 2007 settled and signed by Wale Abeeb Ajayi & Co; a non legal entity who is not on the roll as a Legal Practitioner in Nigeria. (Ground 1).
(2) Alternative to Issue No.1, whether by virtue of the proceedings before the Tribunal, the Learned Justices were right to have entertained the Preliminary Objection filed by the 3rd Respondents; after the Respondents had filed a Reply to the Petition and having taken several further steps in the Petition. (Ground 3).
(3) Whether the Learned Justices of the Tribunal were not wrong, when they permitted the Respondents to move the Court to strike out the Petition on an alleged lack of pleading of a material fact which the 3rd and 13th Respondents had expressly admitted in Paragraph 2 of their joint Reply to the Petition to with the Petitioner’s pleading in Paragraphs 1 and 2 of the Petition that, he was a candidate at the election. (Ground 4).
(4) Whether the Tribunal was right to have entertained a Motion/Preliminary Objection that came later in time? (Ground 2).
(5) Whether in the light of the provisions of Sections 144(1), (a) of the Electoral Act, 2006; and the facts contained in the Petition admitted in the Replies of Respondents and Petitioner’s front loaded written statement of witnesses the Learned Justices of the Tribunal were correct when they held that the 1st Petitioner had not disclosed his locus standi, to present the Petition.
(6) Whether in the light of consistent direction of binding appellate judicial decisions which enjoins that as far as possible, the election petition must be determined on the merit, except in cases of fundamentally incurable defects or incompetence, the Tribunal had not denied the Appellant the right to fair hearing by striking out the Petition on technical grounds, without allowing the Appellant to prove his case on the merit. (Ground 5).
(7) Whether in the light of the pleaded facts in support of the Petition in Paragraphs 8-22 of the Petition and the Grounds stated in Paragraphs 24-25, the Tribunal rightly held that the Petitioner failed to comply with requirement of Paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2006, that a Petitioner must give adequate facts and reliefs sought in the Petition. (Ground 9).
(8) Whether the Learned Justices of the Tribunal had jurisdiction to entertain the issue of qualification of the 1st petitioner to contest in the election under Section 106 of the Constitution of the Federal Republic of Nigeria, 1999, when Petitioner was not the winner of the election sought to be questioned in the Petition. (Ground 10).
(9) Whether in the light of the provisions of Section 144(2) of the Electoral Act, 2006 the Justices of the Tribunal were not wrong to have struck out Paragraphs 6, 14, 15 and 25 of the Petition and subsequently striking out the names of the 5th – 12 Respondents on the ground of misjoinder notwithstanding that, the Independent National Electoral Commission is made a party and that, a judgment had been entered against the 1st Respondent along with its agents on 20th September, 2007. (Grounds 5 and 6).
The 2nd and 3rd Respondents filed their Joint Brief of Argument dated and filed the 17th October, 2008. In the said Brief of Argument, they formulated Three Issues for determination in this appeal from the Grounds of Appeal and they are:-
(i) Whether (pursuant to Paragraph 49(2) of the 1st Schedule to the Electoral Act, 2006) the Respondents’ objection was taken within reasonable time.
(ii) Whether the Petitioner pleaded material facts in the Petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same.
(iii) Whether the Tribunal properly struck out Paragraphs 6, 14, 16 and 25 of the Petition and the names of the 5th – 12th Respondents.
In arguing the Issues formulated from the Grounds contained in the Notice of Appeal, Learned Counsel to the Appellant argued Issues 1, 2 and 3 together. The Learned Counsel submitted that, the competence of an Election Petition on ground of irregularity can always be challenged by a Respondent provided the Respondent acts timeously upon becoming aware of the defects and before taking any further steps in the proceedings. See:- Paragraph 49(1) and (2) of the First Schedule to the Electoral Act, 2006. It is further submitted by the Learned Counsel to the Appellant that the 2nd and 3rd Respondents’ motion, challenging the competence of the Petition was not filed until September 24th 2007. The Petition was filed on the 11th May, 2007. The Replies to the Petition were filed on June 13th, 2007. Learned Counsel to the Appellant furthered his submission that while it is true that jurisdictional issue can be raised at any time, there is no corollary that a Court or indeed Election Tribunal must determine same in line and shut out the litigant from being heard on the merit of his case. The approach of the Courts these days is to roll over such objection till the end of trial where a case is one deserving of speedy hearing, especially where the subject matter is likely to lapse, as needs must be the case of Election Petition concerned with a fixed tenure of office. See:- Dapialong vs. Dariye (2007) 8 NWLR (pt. 1036) SC 332 at 406; Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423 (SC).
Learned Counsel to the Appellant further submitted that, the injunction that a Court should determine an objection to jurisdiction first, does not mean that, trial on the merit must first be put in abeyance. All that is intended is that, whenever the Court comes to a final decision, it must first resolve the issue of jurisdiction, and then proceed to determine the merit of the case as well, especially, a trial Court which must express its full opinion on matters agitated before it, so as to give the appellate Court the benefit of its opinion in rehearing the matter in the event of an appeal. See: – Senate President vs. Nzeribe (2004) 9 NWLR (Pt. 878) 251 (CA). Learned Counsel to the Appellant submitted further that, by the provisions of Paragraph 49 (2) (5) of the First Schedule to the Electoral Act, 2006, merely codify the Rule of Prudence long commended in the various judgments of our Courts, particularly, Nzeribe’s and Dapialong’s Cases. The fact that an objection goes to competence or argues nullity of a Petition, does not automatically entitle the objector to have it determined first, before the merit of the case is presented. It entitles the objector to raise it first, yes! but having been so raised the right to that priority of hearing of objection is however lost where (as in this case) the Objectors/Respondents in the trial Tribunal, failed patently to: (a) bringing the objection before taking fresh steps in the proceedings; and (b) immediately the defect on the face of the Petition is noticed.
Learned Counsel to the Appellant submitted further that immediately after being served with the Petition, the Respondents indicated in their reply dated 13/06/2007, that they shall object to the competence of the petition and did file such objection by a motion on notice on the 13/06/2007 in which they challenged the competence of the petition on the grounds stated therein.
Learned Counsel to the Appellant submitted further that, election petition is regulated by its own special procedure and, except in case of Lacunae, ordinary principles that govern civil proceedings are in-applicable in Election Petitions; irregularity or nullity of a petition, if not objected before fresh steps is taken by the party complaining, cannot be entertained as a preliminary issue before trial. They are usually governed by their own special rules, as against the normal rules of Court. See: – Urubu vs. NEC (1988) 5 NWLR (Pt. 94) 323; Ogu vs. Ekweremadu (2006) 1 NWLR (Pt. 961) 225 At 277. The Learned Counsel to the Appellant further submitted that the Tribunal was bound to guide itself by the provisions of Paragraph 3, (7), (a) and (b), (1) of the Election Tribunal and Court Practice Directions No. 1 of 2007 in deciding the issues raised by the Respondents, by looking at the entire pleadings to determine if the issue was fit for determination without trial.
Learned Counsel to the Appellant furthered his submission that we concede that the 2nd and 3rd Respondents raising of their Preliminary Objection in their Reply was in compliance with Paragraph 49(2) of the First Schedule to the Electoral Act, 2006. The objection, if so fundamental that the Tribunal could not overlook, having been raised, as enjoined by Paragraphs 49(2) and (5) of the First schedule to the Electoral Act, 2006, the Tribunal still had the opportunity to determine it at the conclusion of the case even to pronounce on it first in the final judgment, before proceeding with pronouncement on the merit of the Petition. See: Nzeribe’s Case (Supra). Learned Counsel to the Appellant further submitted that, the objections were wrongly projected as jurisdictional. What indeed the Respondents were complaining about in their motions was that the Petition does not specify age of the Petitioner, Nigerian citizenship, facts of sponsorship by his political party. What they were entitled to ask for was further and better particulars. Learned Counsel to the Appellant further submitted that, the lower Tribunal was wrong to have entertained Preliminary Objections of the Respondents, particularly, when the joint Reply to the contested Petition by the 3rd and 13th Respondents was settled and signed by Wale Abeeb Ajayi & Co., a non legal entity, who is not on the roll as a Legal Practitioner and lacks the statutory right to file any process in Court. The Tribunal, yet, was influenced by and relied on the said incompetent Respondents’ Reply dated 13th of June, 2007, to hold that the Preliminary Objection filed, was not belated and consequently overruled the Petitioner’s objection. See:- Okafor vs. Okeke (2007) FWLR (pt. 368) 1016 at 1020.
On Issue Four (4), Learned Counsel to the Appellant submitted that the Petitioner sought to strike out the 3rd and 13th Respondents’ Reply on the ground that, it was incompetent, since there was no valid signature, while the 3rd Respondent sought to strike out the Petition on the ground, inter alia that the Petitioner did not specify his right to present the Petition. There are all matters which affect the competence of the pleadings before the Tribunal and are preliminary to the hearing of the matter at trial. The Tribunal decided to entertain the application dated 24th September, 2007 before the one dated 19th September, 2007. See:- Nalsa & Team Associates Vs. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652 At 676. Learned Counsel to the Appellant further submitted that, this Court can invoke the powers vested in it under Section 15 of the Court of Appeal Act to hear the Petitioner’s motion dated 19th September, 2007 to strike out the 3rd Respondent’s Reply and proceed to hear the Petition on its merit.
On Issues Five (5) and Six (6), the Learned Counsel to the Appellant submitted that the Tribunal was bound to any decision of this Court interpreting the equivalent Section 144(1) of the Electoral Act, 2006 under the doctrine of stare decisis, where words or expressions have been legally or judicially defined, their ordinary meaning will give way to their legally defined meaning. See:- ACME Builders Ltd. Vs. Kaduna State Water Board & Another (1999) 2 NWLR (Pt. 590) SC 288 At 313 Paragraphs D – E; Also, Wilson Vs. Attorney-General of Bendel State & Others (1985) 1 NWLR (Pt. 4) SC 572 At 605 Paragraphs F-G. Learned Counsel to the Appellant further submitted that, once a Petitioner has pleaded that he was a candidate at an election, he has disclosed sufficient locus standi to present Election Petition. See: – U.B.A. vs. Ukachukwu (2004) 10 NWLR (Pt. 881) CA 224 At 255; Waziri Vs. Oambovi {1999} NWLR (Pt. 598) 239 At 246-247; Rimi Vs. INEC (2004) All FWLR (Pt. 210) 1312 At 1321-1322. Learned Counsel to the Appellant submitted further that, by striking out the Petition without trial, the Tribunal effectively shut the Petitioner out from proving his case on the merit, particularly; the fact that, he was a candidate at the election and had a right to be elected and returned as a member of the State House of Assembly of Ogun State.
On Issues Eight (8) and Nine (9), the Learned Counsel to the Appellant submitted that, Election Petition is a sui generis proceeding and guided by specially conferred jurisdiction. That jurisdiction can be found in both Sections 144 and 145 of the Electoral Act, 2006. The jurisdiction derives from Section 285 of the 1999 Constitution of the Federal Republic of Nigeria; and it is exclusive but not unlimited. The Learned Counsel to the Appellant further submitted that, the Tribunal failed to distinguish between mandatory matters to be specifically pleaded under Paragraph 4(1) of the First Schedule to the Electoral Act, 2006 and particulars of those acts, which Respondent had a duty to request by application to Tribunal under Paragraph 17 of the First Schedule, failing which, they are deemed not to require any further particulars.
Learned Counsel to the Appellant further submitted that, on a firmly reading of the two legged submission, developed under this Issue, the Tribunal acted without jurisdiction in pronouncing on the qualification, or non-qualification of the 1st Petitioner to contest the election. The issue before the Tribunal was defined by the Petition and not by the Respondents’ Reply thereto. The reference into Section 106 of the Constitution was therefore unnecessary.
On Issue Nine (9), the Learned Counsel to the Appellant submitted that, the proviso to Section 144 (2) of the Electoral Act, 2006, is to limit, or exclude the operation of the rule that, allegations against the conduct of an Electoral Official who is not joined as Respondent, is incompetent, where the Independent National Electoral Commission (INEC) is made a Respondent. In effect, the failure to join an Electoral Official in a Petition will not ipso facto disentitle the Petitioner to prove the allegations; unlike what used to obtain under the Electoral Act, 2006. Learned Counsel to the Appellant submitted further that, by the provisions of Section 144(2) of the Electoral Act, 2006, the Tribunal was wrong to have struck out the names of the 5th – 12th Respondents on the ground of misjoinder, notwithstanding that the Independent National Electoral Commission is made a party. Learned Counsel to the Appellant further submitted that, the Tribunal was wrong to have allowed the 3rd Respondent to object as to the joinder of INEC Officials who on their own, or through their Counsel, did not object to their joinder. The objection raised by the 3rd Respondent, is thus superfluous. Learned Counsel to the Appellant finally submitted that, the Court of law and indeed the Tribunal that struck out this Petition, without hearing, ought to be a Tribunal of substantial justice and not of technicalities adhering strictly to technicalities, is tantamount to sacrificing justice on the altar of technicalities.
In reply, the Learned Counsel to the 2nd and 3rd Respondents, who formulated Three (3) Issues from the Grounds of appeal, submitted on Issue One (1) that, the contention of the Appellant in what he called “Rule of Prudence’ contained in Paragraph 4.06 of the Appellant’s Brief suo moto that the Tribunal erred in hearing an objection which challenges the competence of a Petition in limine and should have adjourned the hearing of the objection until trial. We submit that there is no judicial authority to support this so called “Rule of Prudence’; indeed, authorities to the contrary are numerous. Learned Counsel to the 2nd and 3rd Respondents further submitted that, the general principle of law is that, a Court or Tribunal faced with an application challenging the competence or jurisdiction of proceedings before it, has a duty to hear the objection first, before taking further steps in the proceedings. However in appropriate circumstances, the Court may, on application of a party, exercise its discretion to take the objection at the trial of the suit. See:- Waziri vs. Danbovi (1999) 4 NWLR (Pt. 598) 239 At 246; A.N.P.P Vs. R. O. Assd (2005) 6 NWLR (pt. 149) At 170-171.
Learned Counsel to the 2nd and 3rd Respondents further submitted that, the case of Dapialong vs. Darive (2007) 8 NWLR (Pt. 1036) 332 At 406; Inakoju vs.Adeleke (2007) 4 NWLR (pt. 1025) 423 relied on by the Appellant, do not apply. Whereas, this appeal concerns Election Petition where pleadings are filed before a plenary trial. The two (2) cases referred to above, concern with impeachment proceedings commenced by originating summons where affidavits evidence have been filed in support of the summons, in any event different rules of procedure apply in the two instances. Learned Counsel to the 2nd and 3rd Respondents further submitted that, Paragraph 49(5) of the First Schedule to the Electoral Act, 2006 puts the duty on the Tribunal to hear and determine the objection before any further steps in the proceedings. The Learned Counsel to the 2nd and 3rd Respondents further submitted on what amounts to taking fresh steps, that the law is now settled that, a Respondent will not be prevented from challenging a Petition pursuant to Paragraph 49 (2) unless hearing of the Petition has commenced. See: – Bichi vs. Haladu (2003) 14 NWLR (pt. 841) 624.
Learned Counsel to the 2nd and 3rd Respondents further submitted that stage for determining whether a Respondent has waived the right to object to a Petition, is after hearing has commenced. The Respondent is allowed to bring the objection any time before trial commences. The fact that the unconditional appearance is filed is of no moment. See: – Buhari vs. Obasanjo (2003) 17 NWLR (pt. 850) 485. Learned Counsel to the 2nd and 3rd Respondents further submitted that, Section 147(3) of the Electoral Act, 2006, gives the Respondent an unimpeded right to bring an application to strike out an Election Petition, where the ground for seeking the order is based on the non-compliance with the provisions of the rule of procedure. A Respondent who makes an application under Section 147(3) is not inhibited by time or the stage of the proceedings, whereas, Paragraph 49(2) clearly limit the Respondent in that respect. He is prevented from bringing the application after expiration of defect complained of. Learned Counsel to the 2nd and 3rd Respondents further submitted that, there is a clear difference between the effect of the rules vis-a-vis the Section 147(3) of the Electoral Act. Consequently, it is submitted that Paragraph 49(2), by placing limitation on the Respondent’s right to bring an application strike out the Petition unwillingly circumscribes the provision of Section 147(3) of the Electoral Act and is inconsistent with it and that extent is applicable.
It is submitted that, where the subsidiary legislation (such as the rule of procedure, as in this case) conflict with that of the enabling act or other statute, the provision of the subsidiary provision is ultra vires and inapplicable. See: – Nwaneze vs. Idris (1993) 3 NWLR (Pt. 1) 16; Buhari Vs. Obasanjo (Supra). The Learned Counsel to the 2nd and 3rd Respondents further submitted that, Appellant’s arguments in Paragraphs 4.13 – 4.21 that the 3rd and 13th Respondents (2nd and 3rd Respondents in this appeal), their Preliminary Objection was that, the Petitioner has failed to disclose materials facts in his Petition which cloth him with legal standing or capacity to institute this Petition. Paragraph 1 of the Petition (even if admitted), incurably fails to comply with the mandatory provision of Section 106 of the Constitution, Section 144 of the Electoral Act and Paragraph 4(1)(b) of the schedule. This objection challenges the locus standi of the Petitioner to institute the Petition and as such that, the tribunal had no jurisdiction to entertain the Petition. Paragraph 49(2) is in-applicable to prevent a Respondent from raising an issue of jurisdiction at any stage of the proceedings.
Learned Counsel to the 2nd and 3rd Respondents further submitted that, the requirement of locus standi is mandatory, because, the judicial power of the Court are constitutionally limited to matters in which parties have it. In determining the issue of locus standi, the Court must thereof constantly bear in mind that, its judicial powers are being involved and matter in which such powers can be extended, are as provided by Section 6(6) of the Constitution. Therefore, where a Plaintiff has no locus standi, the Court has no jurisdiction to entertain his action. See: – Oloriode vs. Ovebi (1984), See P1; RTEN Vs. NURTW (1992) 12 NWLR 381 At 391.
Learned Counsel to the 2nd and 3rd Respondents therefore urged this Court to hold that, the objection of the Respondents goes to jurisdiction of the Court and not insufficiency of particulars as the Appellant has argued.
On Issue Two (2), Learned Counsel to the 2nd and 3rd Respondents submitted that, the Petitioner’s right to present a Petition is not a common law right, but is a right created by statute. The right is established by compliance with the provision of Section 106 of the Constitution and Section 144 of the Electoral Act and Paragraph 4(1) (b) of the First Schedule to the Electoral Act, 2006.
Learned Counsel to the 2nd and 3rd Respondents further submitted that the locus standi of the Appellant is determined by a combined reading of Paragraph 4 (1) and Section 106 of the Constitution, where facts must be clearly pleaded, failing which the Petition is incompetent. Clearly, if he fails to plead this qualification, he has failed to specify his right to present the Petition. The Tribunal was therefore correct in its Judgment when it held that, the Appellant failed to specify his right to present the Petition on his failure to plead his political party in compliance with the Schedule to the Act, which requires him to specify his right to present the Election Petition. In other words, he must amplify on the capacity, which he relies on to bring the Petition. He cannot barely repeat Section 144(1) (a) of the Electoral Act, 2006 and no more. See:- Egolum Vs. Obasanjo (1999) 7 NWLR Page 355, Paragraph 15, Line 510.
Learned Counsel to the 2nd and 3rd Respondents on this Issue, urge the Court to hold that, the Appellant’s Petition was right fully dismissed. Learned Counsel to the 2nd and 3rd Respondents submitted further that, it is insufficient for the Petitioner to simply plead that “he was a candidate at the election”. The Cases of U.S.A. vs. Ukachukwu (2004) 10 NWLR (Pt. 881) 224; Waziri vs. Damboyi (1999) 4 NWLR Page 239; P.P.A. vs. Saraki (2007) 17 NWLR (Pt. 1064) 453, are not relevant for determination of issue which is now presented to Court.
On Issue Three (3), Learned Counsel to the 2nd and 3rd Respondents submitted that, the argument of the Appellant to the effect that, there is no requirement to join officers whose conduct is complained of in a petition. This argument is based on the proviso to Section 144(2) of the Electoral Act and the Common Law Principle that no agent of a disclosed principal need to be joined in an action which can be pursued against principal. The Learned Counsel to the 2nd and 3rd Respondents submitted in this regard that, the functions of Presiding Officers and other Electoral Officers are creation of statute and the said Officers swear their Oath of Allegiance to the Federal Republic of Nigeria and not to INEC. Under the Electoral Act, the said Officers are responsible for their actions and it is because of this responsibility that they are made statutory Respondents, pursuant to the Section 144 (2) of the Electoral Act, 2006. It would therefore not be sufficient to simply join INEC as a party to an Election Petition. The provision of Section 144 (2) requires that “such Officer must be shown to have acted as an agent of the Commission”. Learned Counsel to the 2nd and 3rd Respondents therefore urges this Court to uphold the decision of the Tribunal and to dismiss this appeal.
The Appellant filed a Reply Brief to the 2nd and 3rd Respondents’ Brief of Argument dated 11/11/2008 and filed on the same date. In reply to the 2nd and 3rd Respondents’ consideration of the provisions of Section 106 of the Constitution and Paragraph 4 1)(b) of the First Schedule to Electoral Act, 2006, this Court has now put it beyond any doubt that, the provisions of Section 144 (1) must be read in conjunction with the provisions of Section 145(1)(d) of the Electoral Act, 2006, to discover that, a person who was validly nominated by a political party to contest in an election, but was lawfully excluded, is a “Candidate’ under Section 144(1) (a) and has the “locus standi’ to present an Election Petition. See: – P.P.A. vs. Saraki (2007) 17 NWLR (Pt. 10640 453. Learned Counsel to the Appellant replied further that, the lower Tribunal based its decision on the Supreme Court’s Judgment in Egolurn vs. Obasanjo (1999) 7 NWLR (pt. 611) At 355. In that appeal, the Appellant was found not be a candidate who contested at the election.
Learned Counsel to the Appellant submitted further on the contention of 2nd and 3rd Respondents; Counsel that, the lower Tribunal was right when it held that, the Appellant ought to have satisfied the requirements of the provisions of Section 106 of the Constitution and he could be said to have had locus standi. The decision of this Court in the unreported case of Senator Ibikunle Arnosun vs. INEC & 257 Others in CA/I/EPT/GOV/10/2007 has cleared the position that, the requirement of Section 106 of the Constitution is needed more for a valid nomination. Learned Counsel to the Appellant further submitted that, the law is trite that, even if the position of 2nd and 3rd Respondents’ Solicitor is correct, such issue of misjoinder has nothing to do with jurisdiction of the Tribunal or competence of the entire Petition, any ground based on Section 144 (2) of the Electoral Act, cannot be taken as an interlocutory point. The issue can only be taken at the substantive hearing of the Petition. Finally, the Learned Counsel to the Appellant submitted that, this Court should limit the determination of this appeal on whether or not the Appellant who contested at the election has no “locus standi’ to present the Petition before the lower Tribunal, See:- Seven-up Bottling Company Vs. Abiola Limited (2001) 12 NWLR (pt. 730) 469,493 – 494 And 516; Anyaduba vs. N.R.T.C Limited (1992) 5 NWLR (Pt. 243) 535, 564; Ishaya Bamaivi vs. The State (2001) 8 NWLR (pt. 715) 270, 285 – 286, 294-295. Finally, Learned Counsel to the Appellant urge this Court to uphold the appeal.
I have always stated this fact that it is settled law; the appellate Court is not bound or under a duty to take all issues formulated by a party or parties for the determination of an appeal, in order to give decision. See:- Okoro vs. The State (1988) 12 SC 191; Lenole vs. The Registered Trustees of Cherubim And Seraphim Church of Zion of Nigeria; Ugbobia & 3 Others (2003) 2 SCN 39; (2003) 1 SCNJ 463; Latunde & Another Vs. Bella Lafufin (1989) 5 SC 59; (1989) 2 SCNJ 59.
In other words, an appellate Court can prefer an issue or issues formulated by any of the parties and can itself or on its own, formulate issues which it considers to be germane to and pertinent in the judicious determination of the matter in controversy. See:- Anor Vs. Dr. Anthony Mimra & Others (2008) 2 SCN 55 At 71.
Looking at Issues formulated for determination by the parties in this appeal, they are substantially identical, although, the Respondents on their part considered Three (3) Issues for determination against the Nine (9) by the Appellant. It should be noticed that the Three Issues of the Respondents’ Brief of Argument has encompassed all the Nine Issues formulated by the Appellant in his Brief of Argument which become conterminous in all respect they raised the same question of whether the Tribunal was right to have struck out the Petition of the Appellant before going into the substantive hearing of the Petition. The two sets of issues emanated from the grounds and the judgment in this appeal. That being the case, I have opted to be guided by the issues as raised by the Respondents.
The first Issue to consider is whether, pursuant to Paragraph 49(2) of the First Schedule to the Electoral Act, 2006, the Respondents’ objection was taken within a reasonable time. Paragraph 49(2) of the First Schedule to the Electoral Act, 2006 provides:-
“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.”
The Appellant at Page 18 of his Brief of Argument at Paragraph 4.06 stated:-
“It is true that immediately after being served with the Petition, the Respondents indicated in their Reply dated 13/6/2007 that they shall object to the competence of the Petition and did file such Objection by a Motion on Notice on the 13/6/2007 in which they challenged the competence of the Petition or the grounds stated therein.
At Page 19, Paragraph 4.10, the Appellant stated:-
“The Respondents did not ask for leave to bring the application and did not show any extreme circumstances why the application should be heard. In this case, what the Tribunal did was to simply ignore the provisions of the Practice Directions. This the Tribunal did, despite the fact that it was bound to follow same. The Tribunal was bound to guide itself by the provisions of Paragraph 3 (7), (a), (b), (1) of the Election Tribunal and Court Practice Directions NO.1 of 2007 in deciding the issues raised by the Respondents, by looking at the entire pleadings to determine if the issue was fit for determination without trial … ”
It is thus pertinent to consider the provisions of Paragraph 3(7), (a), (b), (1) of the Practice Directions. Paragraph 3 (7) provides:
“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;
(a) Amendment and further particulars;
(b) The admissions of fact documents and other evidence by consent of the parties;
(1) such other matters as may facilitate the just and speedy disposal of the Petition bearing in mind the urgency of Election Petitions”.
It is no doubt that, the provision of Paragraph 3 (7), (a), (b), (1) relied upon in this context, deals essentially with proceedings at the pre-hearing session of the Tribunal. It has no relevance whatsoever to the filing of Preliminary Objection. There is nowhere under the provision of the Practice Directions cited above, where leave of the Tribunal was required as suggested by the Appellant, as a pre-condition for the filing of the Preliminary Objection by the Respondents. This may be tantamount to adding what is not contained in the procedure.
The Appellant had admitted in Paragraph 4.06 of his Brief of Argument that the filing of the Preliminary Objection by the Respondents, was done timeously; and added at Paragraph4.11 that:-
“While we concede that 2nd and 3rd Respondents raising of their 1st Preliminary Objection in their Reply, was in compliance with Paragraph 49(2) of First Schedule to the Electoral Act, 2006”.
This Court is of the firm view that, anything admitted, needs no further proof. See:- Nigerian Bottling Company Plc. vs. Stephen Oboh (2000) 9 WRN 114.
All the subsequent arguments proffered by the Appellant’s Counsel on taking of fresh steps by the Respondents in the Petition, before the filing of the Preliminary Objection, becomes superfluous. I agree with the Tribunal when it said at Page 215 of the Records:-
“There is no doubt that hearing is yet to commence in this Petition and in any event, the matter of locus standi being a jurisdictional issue, can be brought at any stage of the proceedings without the issue of waiver of right being foisted on the contender”.
On this score above, the appeal is resolved in favour of the respondents, that the filing of their First Preliminary Objection before the Tribunal was done timeously in accordance with Paragraph 49(2) of the First Schedule to the Electoral Act, 2006; and the decision of Tribunal to take the Preliminary Objection soon thereafter, was also correct.
The Second Issue is, whether the Petitioner pleaded material facts in his Petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same. The main contention of the Respondents is that, the Appellant as Petitioner at the lower Tribunal, failed to disclose material facts in his Petition which cloth him with legal standing or capacity to institute his Petition. The Respondents maintained that, Paragraph 1 of the Petition (even if admitted), incurably fails to comply with the mandatory provisions of Section 106 of the Constitution of the Federal Republic of Nigeria; Section 144 of the Electoral Act and Paragraph 4(1), (b) of the First Schedule to the Electoral Act, 2006. Paragraph 1 of the Appellant’s Petition contained at Page 13 of the Records, states:-
“Your Petitioner, Abiodun Olaosebikan, is a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the above election”.
Again, the material fact which the Respondents complained about in their Preliminary Objection, which the Tribunal accepted as correct and acted upon it in its judgment by striking out the Appellant’s Petition is that, the Appellant failed to specify his right to present the Petition on the account of his failure to plead his political party in compliance with the Schedule to the Act which requires him to specify his right to present the Election Petition. In other words, he must amplify on the capacity he relies on, to bring the Petition. He cannot barely repeat Section 144 (1), (a) of the Electoral Act, 2006 and no more. The Tribunal relied on the Case of Ego/urn Vs. Obasanjo (1999) 7 NWLR Page 255:
“In considering this of the Tribunal, it is pertinent to consider the provisions of Section 106 of the Constitution, Section 144 (1), (a) of the Electoral Act and Paragraph 4(1), (b) of the First Schedule to the Electoral Act, 2006”.
Section 106 of the 1999 Constitution provides:-
“Subject to the provision of Section 107 of this Constitution, a person shall be qualified for election as a member of House of Assembly if:-
(a) He is a citizen of Nigeria;
(b) He has attained the age of thirty years;
(c) He has been educated up to, at least the School Certificate level, or its equivalent; and
(d) He is a member of political party and is sponsored by the party”.
Section 144 (1) provides.-
“An Election Petition may be presented by one or more of the following persons:-
(a) A candidate in the election,”
Paragraph 4 (1) of the First Schedule to the Electoral Act; 2006 provides.-
“(1) An Election Petition under this Act, shall:
(b) Specify the right of the Petitioner to present the Election Petition”.
It is very germane at this point to go back to the provisions of Section 144 (1) of the Electoral Act, 2006 and examine the entire Section and its import. Both the Respondents and the Tribunal stopped at Section 144 (1), (a) without considering the other leg of the Section, that is (b). Section 144 (1) of the Electoral Act, 2006, I will repeat:-
“An Election Petition may be presented by one or more of the following persons:
(a) A candidate in the election;
(b) A political party which participated in the election”
The candidate and the political party by a community reading of the provision of Section 144 (1) of the Act are made disjunctive and not conjunctive. The word, “or” – by one or more of the following”, simply means, either the candidate or the political party that participated in the election, can separately file an Election Petition. I wish to add that, the provision of Section 144 of the Act, allows both the candidate and his political party to jointly file a Petition vide the word “more” used therein.
I find it hard to agree with the lower Tribunal in its judgment that, the Appellant (Petitioner therein) need to amplify his Paragraph 1 of the Petition, by stating the political party that sponsored him, when the party itself, if it decides to do so, can equally present an Election Petition. The categories of persons who may present an Election Petition under Section 144(1) of the Act had the interpretation of this Court in the Case of Okwonkwo vs. Ngige (2006) 8 NWLR (Pt. 981) 119 At 136; Adekeve, JCA, as she then was, now (JSC) held:-
“Section 133(1) (Electoral Act, 2006) provides for persons who may present a Petition. It is either one or both of: (a) – a candidate at an election, (b) – a political party which participated at the election”.
I cannot see the amplification the lower Tribunal was looking for from the Appellant after stating that, he was a candidate at the election. As regards the requirement of Section 106 (d) of the Constitution of the Federal Republic of Nigeria, 1999, for a person to be qualified for election as a Member of House of Assembly, Section 106 (d) states: – “he is a member of a political party and is sponsored by that party”. Although, neither the Appellant, nor the Respondents had pleaded Form EC8E, which is the result sheet of the election from INEC. Probably, because being a “Candidate” at the election, the Appellant was never challenged by the Respondents. It is yet a public record.
By Section 73 of the Evidence Act, fact judicially noticeable need not be proved. No fact which the Court must take judicial notice need be, proved.
No doubt, both the Appellant and the Respondents can only satisfy the requirements of Section 144 (1), (a) of the Electoral Act, 2006 only by the content of Form EC8E, which is the result sheet of the election from INEC. Therein, Form EC8E is the name of each candidate, his political party and his scores at the election. No proof is needed therefore by either the Appellant or the Respondents as to the sponsorship of their political parties. It is contained therein, Form EC8E is a public record, both the Court and the Tribunal must take judicial notice of. Therefore, the Appellant is not in any breach of Section 106 (d) of the Constitution.
On Paragraph 4(1), (b) of the First Schedule to the Electoral Act, 2006, which requires the Appellant (Petitioner) to specify his right to present the Petition, Paragraph 1 of the Appellant’s Petition is all encompassing. It states:-
“Your Petitioner, Abiodun Olaosebikan, is a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the above election”.
I cannot see what right is needed to be specified as required by 4(1), (b) of the Schedule, to present his Petition that the Appellant has not specified. On the whole therefore, Issue Two (2) is resolved in favour of the Appellant against the Respondents.
On the Third Issue which is whether the Tribunal properly struck out Paragraphs 6, 14, 16 and 25 of the Petition and the names of the 5th- 12th Respondents. The Appellant had argued to the effect that, there is no requirement to join Officers whose conduct is complained of in the Petition, since INEC is already joined. This argument is based on the proviso to Section 144 (2) of the Electoral Act and the Common Law Principle that, no agent of a disclosed principal need to be joined in an action which can be pursued against the principal. The Respondents however contended which the Tribunal agreed with them that, the function of Presiding Officers and other Electoral Officers are creation of statute and that, the said Officers swear their Oath of Allegiance to the Federal Republic of Nigeria and not to INEC. Under the Electoral Act, the said Officers are responsible for their actions and it is because of this responsibility that they are made statutory Respondents, pursuant to the Section 144 (2) of the Electoral Act. In this circumstance therefore, it would not be sufficient without more to join INEC as a party to an Election Petition. The provision of Section 144 (2) requires that, “Such Officer must be shown to have acted as an agent of the Commission”.
Section 144 (2) of the Electoral Act, 2006 provides:
“The person whose election is complained of, is in this Act, referred to as the Respondent, but if the Petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer, or any other person who took part in the conduct of an election, such Officer or person shall, for the purpose of this Act, be deemed to be a Respondent and shall be joined in the Election Petition in his or her official status as a necessary party. PROVIDED that, where such Officer, or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid, will not on its own, operate to avoid the Petition if the Commission is made a party”.
In construction of statute or instrument, the law is that, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the context and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute. See:- Oyeyemi Vs. Commissioner for Local Government, Kwara State (1992) 2 SCNJ 266 At 280; Artra Industry Nigeria Limited Vs. NBCI (1998) 3 SCNJ 97At 115.
To my mind, the new proviso to Section 144 (2) of the Electoral Act, 2006, seem to be a statutory device designed to provide some ways up effect that can save a petition from being declared incompetent, for failure to join some individuals who worked as agents of the INEC in the conduct of an election. Where a supposed necessary party is not joined in an Election Petition, such non-joinder will not under the Electoral Act, 2006, defeat the petition; where it is possible for the Petitioner to prove the agency of such individual to the INEC in the conduct of the election in question and; if INEC is joined as a Respondent to the Petition, it is significant to note that, the proviso operates, both in respect of non-joinder of officers of INEC and any other person who took part in the conduct of the election.
It is significant again to note as in the case with the present appeal, where INEC and the officers are all joined, the proviso in my opinion cannot be read to mean a case of mis-joinder, which will warrant the striking out of the names of the INEC Officials joined and the Paragraphs of the Petition that affects them. To my mind joining INEC as Respondent, and also making individuals who worked for it at the election as also Respondents does not defeat the purport of the proviso to Section 144(2) of the Electoral Act, 2006. Rather in my view, is a mere surplusage. The Tribunal therefore, was wrong to have struck out Paragraphs 6, 14, 16 and 25 of the Petition and the names of the 5th – 12th Respondents for what it termed as a misjoinder of those Officers in the Petition. Issue NO.3 again, is resolved in favour of the Appellant.
On the whole, this Court will say that, the lower Tribunal ought to have paid attention to substantial justice than mere form; because, justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. Adhering strictly to technicalities, is tantamount to sacrificing justice on the altar of technicalities.
In the final analysis, this appeal is allowed. The Ruling of the Tribunal on the National Assembly Governorship and Legislative Houses Election Petition Tribunal, Ogun State, in Suit No. EPT/OG/HA/11/2007, delivered on 18th day of October, 2007 Coram:- Justices H. M. Tsammani, B. H. Ismail, C. U. Ukpe, U. M. Sadiqand C. O. Onyeabo delivered by C. U. Ukpe is hereby set aside on its entirety by this Court. Also, all persons and Paragraphs of the Petition in relation to Section 144 (2) of the Electoral Act, 2006, hitherto struck out in the said Ruling made by the lower Tribunal, are hereby restored back to the Petition.
It is further ordered that the Tribunal should resume the hearing of the Petition on its merit. There shall be Costs of N30,000.00 in favour of the Appellant against the 2nd and 3rd Respondents.
CLARA BATA OGUNBIYI, J.C.A.:
The petition giving rise to this appeal was not heard on the merit. The error fallen into by the learned trial tribunal was well expounded by the reasonings and conclusion arrived thereat in the lead judgment of my brother Bage, JCA. I do not see it necessary to overflog the point and consequent to which I also allow the appeal in the same terms and orders made therein the lead judgment inclusive of costs.
ISTIFANUS THOMAS, J.C.A:
I read before now, the lead judgment of my learned brother, S.D. BAGE, J.C.A. just delivered, and I entirely agree that the appeal is meritorious and I also allow the appeal.
I abide with consequential orders including costs made in the lead judgment.
