3PLR – BOLIVINTER OIL SA V. MANHATTAN BANK AND OTHERS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BOLIVINTER OIL SA
V.
MANHATTAN BANK AND OTHERS
COURT OF APPEAL (PORT HARCOURT)
CA/PH/EPT/189/2003
WEDNESDAY, 5TH NOVEMBER, 2003
3PLR/2003/50 (CA)
OTHER CITATIONS
[2004] 1 NWLR (PT. 854 352
BEFORE THEIR LORDSHIPS:
SUNDAY AKINOLA AKINTAN, J.C.A. (Presided)
ABOYI JOHN IKONGBEH, J.C.A.
DAVID ADEDOYIN ADENIJI, J.C.A. (Read the Leading Judgment)
BETWEEN
BOMA GOODHEAD
AND
- MR. OTELEMABA AMACHREE
- INDEPENDENT NATIONAL ELECTORAL COMMISSION
- RESIDENT ELECTORAL COMMISSIONER RIVERS STATE
- THE ELECTORAL OFFICER, ASARI.TORU LOCAL GOVT. AREA
- THE CONSTITUENCY RETURNING OFFICER, ASARI.TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- RETURNING/COLLATION OFFICER WARD 1 ASARI.TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- RETURNING/COLLATION OFFICER WARD 2 ASARI.TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- RETURNING/COLLATION OFFICER WARD 3 ASARI.TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- RETURNING/COLLATION OFFICER WARD 4 ASARI.TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- RETURNING/COLLATION OFFICER WARD 5 ASARI. TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- RETURNING/COLLATION OFFICER WARD 6 ASARI-TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- THE SUPERVISORY PRESIDING OFFICER, WARD 1 ASARI-TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- THE SUPERVISORY PRESIDING OFFICER WARD 2 ASARI-TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- THE SUPERVISORY PRESIDING OFFICER WARD 3 ASARI-TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- THE SUPERVISORY PRESIDING OFFICER WARD 4 ASARI-TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- THE SUPERVISORY PRESIDING OFFICER WARD5 ASARI- TORU LOCAL GOVT. AREA, CONSTITUENCY 1
- THE SUPERVISORY PRESIDING OFFICER WARD 6 ASARI-TORU LOCAL GOVT. AREA, CONSTITUENCY 1
RPRESENTATION
- O. Soronwadi, ESQ. – For the Appellant
- C. Oputa, ESQ. – For 1st Respondent
- B. Owhonda Wopara, ESQ. – For the 2nd – 17th Respondents
MAIN ISSUES
ELECTION MATTERS – CONSTITUTIONAL LAW:- Election – Election into House of Assembly – Qualification thereof
ELECTION MATTERS:- Nomination and sponsorship of a candidate by a political party – Withdrawal of sponsorship – Mode of- Condition thereof – Withdrawal of candidate from election
ELECTION MATTERS:- Withdrawal of political party from election – Mode of withdrawal – Candidate already nominated by the political party for the election not informed of withdrawal – Whether can bring election petition against the opponent.
ELECTION PETITION:- Preliminary objection to election petition – On what based – Extraneous facts – Whether can be basis for challenge thereto – Defects in election petition – When to raise objections thereto.
ELECTION PETITION:– Recourse to technicalities in election petition matters – Attitude of courts thereto – Rationale thereof
CONSTITUTIONAL LAW:- Section 106 of the Constitution of the Federal Republic of Nigeria, 1990 – Interpretation of
INTERPRETATION OF STATUTE:- Sections 23 and 25 of the Electoral Act, 2002 – Interpretation of
PRACTICE AND PROCEDURE – PLEADINGS:- Averment in statement of claim – Where defendant disputes same – Proper treatment of
PRACTICE AND PROCEDURE – ACTION:- Preliminary objection to election petition – On what based – Extraneous facts – Whether can be basis for challenge thereto – Defects in election petition – When to raise objections thereto.
NIGERIAN CASES REFERRED TO IN THE JUDGMENT:
Abdullahi v. Elayo (1993) 1 NWLR (Pt. 268) 171
Akinbi v. Mil. Gov., Ondo State (1990) 3 NWLR (Pt. 140) 525
Anason Ibeto Int. Ltd. v. Vimex Imports-Exports (2001) 10 NWLR (Pt. 720) 224
C.C.B. (Nig.) PIc. v. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) 528
Ege Shipping and Trading Ind. v. Tigris Int. Corp. (1999) 14 NWLR (Pt. 637) 70
Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355
Ezechigbo v. Gov., Anambra State (1999) 9 NWLR (Pt. 619) 386
Ezeke v. Dede (1999) 5 NWLR (Pt. 601) 80
Hamza v. Lawan (1998) 10 NWLR (Pt. 571) 676
Ike v. Ofokaja (1992) 9 NWLR (Pt. 263) 42
Mobil Oil (Nig.) PIc. v. I.A.L 36 Inc. (2000) 6 NWLR (Pt. 659) 146
Nwobodo v. Onoh (1984) 1 SCNLR 1
Okoye v. Lagos State Govt. (1990) 3 NWLR (Pt. 136) 115
Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317
Onuoha v. Okafor (1983) 2 SCNLR 244
Shell-BP Petroleum Development Co. (Nig.) Ltd. v. Onasanya (1976) 6 SC 89
Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638
Warri Refinery and Petrochemical Co. Ltd. v. Onwo (1999) 12 NWLR (Pt. 630) 312
Wike v.lcheonwo (1999) 4 NWLR (Pt. 600) 618
Foreign Cases Referred to in the Judgment:
Dyson v. Attorney General (1911) 1 KB 410
Macfoy v. U.A.C. (1962) AC 152
Nigerian Statutes Referred to in the Judgment:
Constitution of the Federal Republic of Nigeria, 1979 (as amended) by the Constitution (Suspension and Modification) Decree No. 107 of 1993, Ss. 106, 230(1)(q)(r) and (s)
Electoral Act, 2002, Ss. 21, 22, 23, 25,26,27,28,29,30,31, 32, 133, First Schedule, para. 49(5)
Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, Ss. 93, 94, 132 and 149(d)
MAIN JUDGEMENT
ADENIJI, J.C.A. (DELIVERING THE LEADING JUDGMENT):
In this case, the petitioner/appellant was dissatisfied with the ruling of the lower tribunal sitting in Port Harcourt handed down on 26th June, 2003 striking out the appellant’s petition on the ground that she has no locus standi to challenge the results of the election to the Governorship and Legislative Houses Election of 3rd May, 2003.
The 1st respondent was returned as elected in the election to the Rivers State House of Assembly. Sequel to the ruling the appellant filed two grounds of appeal as per page 55 of the record of appeal.
The facts of the case are that the appellant and others contested the election of 3rd May, 2003 to the Rivers State House of Assembly.
She was nominated to contest the election by her party he ANPP, while the 1st respondent contested the election on the platform of the PDP. At a stage, the ANPP issued a press release urging its members to contest the election but at another stage the party withdrew from the contest. The election however wept on and the 1st respondent was returned elected with a total votes of 19,627.
The appellant was said to have scored only 559 votes in all. That prompted her into filing a petition at the lower tribunal for some reliefs. ‘
The 1st respondent however filed an objection on the ground that the appellant has no locus standi to present the election petition, her party, (ANPP) having withdrawn from the race. The appellant insisted that she had the locus standi to file the petition. The lower tribunal upheld the 1st respondent’s objection and struck out the appellant’s petition on the ground that she could not present such a petition, as she did not fit into any of the categories of persons who could present such a petition under section 133 of the Electoral Act, 2002.
The appellant formulated two issues for determination to wit:
(c) Within the meaning and context of the provisions of the Electoral Act, 2002 in respect of nomination and withdrawal of a candidate for an election, can exhibit A disentitle the petitioner from presenting a petition under the Electoral Act, 2002 having regard to the contents of her petition filed on the 2nd day of June, 2003?
(d) Whether the tribunal was not obliged by law to look at the petition presented by the petitioner to determine whether or not the petitioner has locus standi to present the petition.
On his own part, the 1st respondent formulated 3 issues for determination to wit:
(i) Whether the A.N.P.P. in Rivers State actually withdrew from the State House of Assembly elections held on 3rd May, 2003.
(ii) Whether a candidate nominated for sponsorship by a political party for purposes of an election can as a matter of right stand for the election independently irrespective of the political party’s (i.e. the sponsor’s) withdrawal from the election?
(iii) Whether an aspirant (or a former candidate) no longer sponsored by a political party in an election can maintain any right/locus standi to challenge the validity or otherwise of the election?
Issues having been joined, the counsel for the appellant and the 1st respondent adopted their briefs; with counsel for the appellant urging this court to allow the appeal while counsel for the 1st respondent urged the court to dismiss same. Counsel for the 2nd – 17th respondents appeared to have merely rested his clients’ case on the brief filed by the counsel for the 1st respondent.
In the main, the counsel for the appellant submitted on issue one that the tribunal failed to give effect to the provisions of the Electoral Act, 2002 dealing with nomination and participation of a candidate in an election. Counsel then went through the provisions of sections 21, 22 and 23 of the Electoral Act. He also referred to sections 26, 27, 28, 29, 30, 31 and 32 of the Act dealing with nomination, withdrawal of nomination, death of nominated candidate etc. Counsel believed that an election petition being in a class of its own needed to be so treated by a court.
He referred in that connection to the case of Abdullahi v. Elayo (1993) 1 NWLR (Pt. 268) 171 at 197. He went on to say that the interpretation of provisions of the Act ought to be strictly construed to ensure that the purpose of the enactment is not defeated. He relied for this on Ike v. Ofokaja (1992) 9 NWLR (Pt. 263) 42 at 64.
Counsel also referred to the press release of 1/5/03 issued by the ANPP and pointed out that it was not addressed to the appellant but to the National Chairman, ANPP, the Resident Electoral j Commissioner, Rivers State Commissioner of Police, and the Director, SSS Rivers State. The appellant’s name or her constituency was not mentioned in the release. Counsel said he needed at that stage to know if such piece of document could disentitle a nominated candidate from contesting an election and if the INEC could in the circumstances validly act on such document to the detriment of a candidate for an election. According to the appellant’s counsel, the entire provisions of the Act ought to be read together to discover the intendment of the lawmakers. In that regard he referred to Mobil Oil (Nig.) PLC v. IAL. 36 Inc. (2000) 6 NWLR (Pt. 659) 146 at 168.
He went on to submit that where a statute creates an obligation as to the performance of a public duty together with the method of performance of the duty, only that method prescribed must be followed. He cited Cooperative and Commerce Bank (Nig.) PLC. v. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556; Ude v. I Nwara (1993) 2 NWLR (Pt. 278) 638 at 661.
Counsel maintained that where a person has been validly nominated to contest an election, any decision to the contrary must be with his/her knowledge. He added that once a political party has nominated a candidate and has sent the candidate’s name to INEC, the party could no longer take any unilateral decision affecting the candidate. He relied for this, on the case of Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618 at 626.
He then urged this court to have recourse to the mischief rule of interpretation and hold that the mischief to be cured by the provisions of the Act is to avoid a situation where an announcement or publication can be made midstream in an election to the detriment of a candidate who never had notice of plans to make such announcement.
He finally urged the court on that point to adopt the decision in Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317 at 337 and hold that exhibit A could not disentitle the appellant from presenting a petition to the tribunal.
On issue No.2 counsel submitted that the tribunal was wrong in holding that the appellant had no locus standi to present a petitioner under section 133(1) of the Electoral Act, 2002. Counsel made reference to the provisions of that section and emphasised that in issues of jurisdiction, what is paramount is the case, as made by the plaintiff in the case is reso.lving issues of jurisdiction.
Counsel relied on Anason Ibeto Int. Ltd. v. Vimexlmports – Exports(2001) 10NWLR (Pt. 720) 224 at 231. Counsel further said that where the issue of locus standi was raised, it was the statement of claim that has to be perused to see if the plaintiff has the requisite legal standing to sue.
Counsel in that connection referred to the cases of Okoye v. Lagos state Government (1990) 3 NWLR (Pt. 136) 115 at 124; Ezechigbo v Governor of An am bra State (1999) 9 NWLR (Pt. 619) 386 at 388- 399; Akinbi v. Military Governor of Ondo State (1990) 3 NWLR (Pt. 140) 525 at 531-532. ”
Learned counsel then submitted that the petitioner complied, if not fully, substantially with the Electoral Act, 2002 in presenting her petition. The objection, counsel pointed out, was hinged on exhibit A without considering whether the facts disclosed in the petition, to know if it could be entertained. He noted that by section 133(1) of the Act, a candidate can present a petition and the appellant was a candidate hence whatever grievances she had could only be properly addressed at the hearing of the case. By its conduct, counsel concluded, the tribunal merely pushed the appellant away from the seat of judgment in a hurry thus denying the appellant the right to fair hearing.
He urged the court to allow the appeal with an order remitting the petition for determination by another panel.
It is to be noted that the appellant in fact filed a reply brief on 2/10/2003 as to the preliminary objection raised by the 2nd -17th respondents to the effect that:
(1) The ground of appeal was incompetent, as it did not relate to the ratio decidendi of the ruling appealed against. .
(2) The issue for determination in a brief of argument must of necessity be limited to the grounds of appeal filed.
Counsel tried to counter the points touched in the objection but it will be noted that those points were at last not canvassed at the hearing of the appeal hence the reply as of now goes to no issue.
The first respondent as earlier indicated formulated 3 issues for determination which would appear regular but on close scrutiny, the issues were found to be mere subdivisions of the main theme, that is, whether or not it was proper for the tribunal to find that the appellant’s party having withdrawn from the election, the appellant had no locus standi to present the petition.
Counsel for the respondent first cleared the issue of the withdrawal of the appellant’s political party from the election and concluded that it so withdrew in fact, having regard to exhibit 1 attached to the 1st respondent’s further and better affidavit. That fact counsel pointed out, was never denied by the appellant hence her silence amounted to an admission.
He cited Alhaji Hamza and Ors. v. Alhaji GamboLawan and Ors. (1998) 10 NWLR (Pt. 571) 676 at 658 paragraphs E-F. He also said that exhibit A attached to the appellant’s counter-affidavit was a mere appeal by the ANPP to its members not to boycott the election but the party changed its mind a week later and withdrew from the election. That letter of withdrawal is the one marked exhibit 1 attached to the further and better affidavit. It rendered the letter of appeal exhibit A hollow.
The further and better counter-affidavit counsel pointed out, was defective since paragraph 2(b) and (c) of same ran counter to sections 93,94,132 and 149(d) of the Evidence Act, Cap. 112 of LFN, 1990.
They should therefore be struck out.
Counsel also observed that the appellant never challenged her party for its withdrawal from the contest and the ANPP had the right to so withdraw, that step being an internal matter of the party. Counsel referred to Onuoha v. Okafor (1983) 2 SCNLR 244 at 265. The court he said could also not rely on paragraph 3 of the petition since the declaration of result attached thereto was a public document and therefore caught by sections 93, 94, 95, 132 and 149(d) of the Evidence Act. Counsel concluded that the ANPP actually withdrew from the election.
On the second issue as to whether the appellant could still contest the election, her sponsorship having been withdrawn, counsel answered this in the negative. He referred to section 106 of the Constitution of the Federal Republic of Nigeria, 1999 which stipulated that a candidate must be nominated and sponsored by a political party.
The appellant, counsel recalled, did not deny that her party had withdrawn from the election but insisted that she was never informed of that step taken. Counsel agreed that prior to the withdrawal of the party from the contest, the appellant was the sponsored candidate of the party but that status changed as soon as the party withdrew from the election, as no party canvassed for votes for her. In other words, counsel went on, the appellant did not participate in the election.
To seek redress, counsel said an aggrieved party needed to come within the law.
He relied on Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 404. According to counsel, once a party has withdrawn , its candidate’s sponsorship has ceased.
He cited Macfoy v. V.A.C. (1962) AC 152. Counsel next turned to Black’s Law Dictionary for the meaning of the word “sponsor” which means surety or security and once that is withdrawn, the candidate no longer has any plank on which to participate in an election. Counsel also referred to section 90 of the Electoral Act, 2002 showing that where a party ceases to exist, a person elected on the platform of the party could not stand for election in the name of the party.
He referred to the case of Wike v. Icheonwo (supra) and said that the case did not represent the law in the present dispensation. Counsel was emphatic that nomination or sponsorship of a candidate is the exclusive preserve of the political party.
On issue 3 counsel adopted his submissions on issue 2 supra and added that it did not lie in the mouth of the appellant to say that having participated in the election, she remained a candidate and could therefore file a petition, she not having been a candidate in the election could not present a petition. He referred to Ezeke v. Dede (1999) 5 NWLR (Pt. 601) 80 at 91. Counsel then urged this court to dismiss the appeal.
I believe that with the scenario, as it is, the main issue to resolve is the issue of the candidacy of the appellant and if it was intact as at the date of election. A look at some of the provisions of the law is therefore necessary. Section 106 of the Constitution of the Federal Republic of Nigeria, 1999 provides for candidature in an election.
It provides:
“106. Subject to the provisions of section 107 of this Constitution, a person shall be qualified for election as a member of a 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 a political party and is sponsored by that party.”
It is by the above provision certain that a candidate must be a member of a political party and must be sponsored by the party. In this case the petitioner/appellant was nominated and sponsored by the ANPP. The twist however came when the party decided to withdraw from the election. The complaint of the appellant is that she was never informed of the move to withdraw from the election; neither did she participate in the decision that led to the withdrawal of the party?
She therefore insisted that she was all the while in the race as a candidate and consequently had the locus to file a petition as she did. The 1st respondent’s counsel holds a contrary view maintaining that her candidature ceased the moment her party withdrew from the contest.
The stand of the 2nd – 17th respondents is the same. There is therefore the need to have a close look at the sections of the Electoral Act dealing with nomination of a candidate or otherwise.
Section 21(a) enables a political party to prepare a list of the candidates it intends to sponsor and send same to the Commission.
Section 22 prohibits double nomination for one elective office while section 23 enables a political party to change its sponsored candidate, 30 days to the date of election.
Section 23 of the Act reads:
“23. Any political party which wishes to change any of its candidates for any election under the Act may signify its intention in writing to the Commission not later than 30 days to the date of election.”
In the same way, a candidate who wishes to withdraw his candidature can do so under section 25 of the Act by notice in writing to his political party who in turn notifies the Commission of such withdrawal not later than 14 days to the election. The party may then be allowed to nominate another candidate.
It will be noted that there is no specific provision for the situation now on hand and the lower tribunal so found at page 51, last paragraph and page 52 first paragraph of the tribunal’s findings.
It reads:
“The issue here relates to the case of a political party and by extension its candidate in this case the ANPP and by extension the petition/respondent having fulfilled all the condition (sic) precedent for the election of 3rd May, 2003 decided not to participate by voting and being voted for. The tribunal had had a cursory look at the provisions of the Electoral Act, 2002 and there is none that covers this novel situation probably because it was never within the contemplation of the craftsmen of the said Act.”
It therefore came to the conclusion that this situation was not envisaged by the Electoral Act, 2002. That exactly is the crux of the matter. Is a bona fide candidate whose candidature or sponsorship was not specifically withdrawn by her party and has fulfilled the conditions prescribed by the Act supposed to suffer the detriment caused by the fatal gap, colTectly noted by the tribunal without anything to show that she knew about the reasons and need for the withdrawal by the party?
The Act has prescribed that in case of withdrawal from an election, the candidate must notify the party, so it would not be caught unawares, and by the same token, a party wishing to withdraw needs to inform a validly sponsored candidate of its intention to withdraw. In a proper situation, that gap (lacuna) discovered ought to be resolved at a full trial to enable the appellant prove that she has been validly nominated and sponsored and her candidature could not be unilaterally withdrawn. The fact that the point is novel is the more reason why the case should have been heard in full to enable the tribunal make judicial pronouncement on the development. Instead, the lower tribunal decided to use the lacuna discovered to silence her. I agree with counsel for the appellant as he put it, that the appellant was hurriedly driven from the judgment seat.
That is not proper in law. See the case of Jim Nwobodo v. Onoh (1984) 1 SCNLR 1, where Uwais, J.S.C. (as he then was) had this to say on page 195:
“Election petitions are by their nature peculiar from other proceedings and are very important from point of view of public policy. It is the duty of courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction. In the instant case, the appellant’s petition was competent, the tribunal was wrong to have struck it out prematurely without allowing him to prove the grounds relied upon.
Before concluding this judgment, I would like to refer to the wise observation of Lord Fletcher Moulton, C.J. in Dyson v. Attorney (1911) 11 KB 410 at 419. To my mind, it is evidence that our judicial system would not permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to be heard excepting in cases where the cause of action was obviously and almost incontestably bad.”
One other point to note is that the appellant actually participated in the election as evidenced by the scores referred to in her petition in paragraph 3 thereof. The table showed the scores of two other candidates as well as that of the appellant put at 559 votes. Though she alleged that the votes were arbitrarily allocated to the candidates, that fact is yet to be established and it can only be so established at a full trial. Same with that vital issue of candidature of the appellant whether regular or irregular, in the face of the withdrawal of her party from the election. To allow the situation to be driven underground together with the scandalous allegation made is to allow mere technicality to override the need for substantial justice, a situation never encouraged by the courts. See the case of Egolum v. Obasanjo and Ors. (1999) 7 NWLR (Pt. 611) 355 at 413 where Achike, JSC (of blessed memory) said:
“The heydays of technicalities are now over because the weight of judicial authorities have shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties to the case.”
I believe that that says it all.
There is also the case of E. N. Wike v. S. R. Icheonwo and Anor. (supra) where the court held at page 626 that once a person is properly sponsored, the sponsorship cannot be unilaterally withdrawn. That is the provision of paragraph 7(2) of the 4th Schedule to Decree No. 36 of 1998. I agree that we do not have a similar provision in the current Electoral Act of 2002 but the deductions made by appellant’s counsel from the case are salient. That is another angle to the matter, which the lower tribunal had the opportunity of looking into but which it unfortunately failed to do.
So much was said about the press release made by the ANPP encouraging its members to go out and vote or be voted for and the letter by which it later withdrew from the contest.
Suffice it to say that the weight of the two documents are best determined at full trial. The latter letter, I need say was not sufficient to abort the hearing of the appellant’s petition at a full trial. The weight could in fact be better assessed at such full trial and a decision made on the same one way or the other. The tribunal was therefore obliged to hear the petition as presented.
In effect I answer the issues as framed by the appellant in her favour. The appeal is therefore allowed. The ruling of the lower tribunal given on 26th June, 2003 is hereby set aside. The case is remitted to the lower tribunal to be heard and determined by another panel.
No order as to costs.
AKINTAN, J.C.A.:
I had the privilege of reading the draft of the leading judgment prepared by my learned brother, D. A. Adeniji, JCA. All the issues raised in the appeal have been fully discussed therein. I entirely agree with his reasoning and conclusion that the tribunal was wrong in striking out the petition and that the appeal should therefore be allowed. I too allow the appeal and order that the petition be remitted back for hearing on its merit.
I abide by the consequential orders made in the lead judgment including that on costs.
IKONGBEH, J.C.A.:
I had the privilege of a preview of the judgment just delivered by my learned brother, Adeni ji, JCA. I agree with him that this appeal ought to be allowed for the reasons he has advanced. I however want to add a few comments of my own, especially on the second issue formulated by the appellant, namely,
“Whether the tribunal was not obliged by law to look at the petition as presented by the petitioner to determine whether or not the petitioner has locus standi to present the petition.”
Learned counsel for the appellant complained that the tribunal was in error to have looked beyond the averments in the petition and had recourse to affidavit evidence introduced by the respondents to determine the issue of the locus standi of the petitioner to present the petition raised by them by way of preliminary objection.
According to learned counsel, it should have restricted itself to the averments in the petition. Counsel pointed out that the tribunal based its ruling on exhibits KEI and A to the affidavits in support of the respondents’ motions “and failed to determine the issue by looking at whether the contents of the petition filed by the petitioner contained facts which entitle him to present a petition.”
The 1st respondent’s counsel did not see fit to address this important issue. Rather he proceeded on the assumption that it was in order to go beyond the petition and consider evidence. Counsel for the 2nd – 22nd respondents, however, did. It was his view that although the tribunal, was obliged to look at. the petition as presented by the petitioner, it “was entitled to do so in conjunction with affidavit evidence at interlocutory stage when the issue was raised.”
It was his further view that “once the issue was raised by the respondents in their motions and affidavit, the tribunal was equally obliged to look at the grounds of objection and the affidavit evidence in support thereof.”
With the profoundest respect to learned counsel, the complaint of the appellant is well made. The appellant’s petition on its face disclosed her locus standi. In paragraphs 1, 3 and 4 she pleaded that
“1. Your petitioner, Boma Goodhead was a candidate of the All Nigeria Peoples Party (hereinafter simply called A.N.P.P.) who stood for the Rivers State House of Assembly Election for Asari- Toru Local Government Area Constituency 1 (One) held on the 3rd day of May, 2003. Petitioner is 32 years old and citizen of Nigeria and a registered voter.
- And your petitioner states that the candidates and their scores as arbitrarily allocated and assigned to each candidate and declared by the returning officer for the Asari- Toru Local Government Area Constituency 1 in the House of Assembly elections are as follows:
| PARTY | CANDIDATES | TOTAL VOTES SCORED |
| A.N.P.P | BOMA GOODHEAD | 559 |
| P.D.P | OTELEMABA DAN AMACHREE | 19,627 |
| A.D | NO CANDIDATE | 1 |
| A.P.G.A | NO CANDIDATE | 1 |
| L.D.P.N. | NO CANDIDATE | 40 |
| J.P. | NO CANDIDATE | 9 |
| N.D.P | OROKOMEBIABRAIDE | 682 |
| P.R.P | NO CANDIDATE | 19 |
| U.N.P.P | NO CANDIDATE | 1 |
The 1st respondent who was sponsored by the Peoples Democratic Party (PDP) was returned as elected.
“3. The petitioner shall contend that the figures ascribed to each of the candidates in the table shown above were the product of deliberate wrong entries made by the 2nd respondent’s agents or servants or representatives arbitrarily without regard to actual and/or polling.
Petitioner hereby pleads the declared results and the 2nd respondent and its agents are hereby given notice to produce the original.”
From these averments it can be seen that not only was it suggested that the petitioner was a candidate sponsored by the A.N.P.P., but also that the I.N.E.C. accepted her candidature and sponsorship, as evidenced by the fact that the results released by it showed that the petitioner contested on the platform of the party and scored votes. The tribunal did not take these averments into consideration.
Rather, as was pointed out on behalf of the appellant, it based its decision on the facts introduced by the respondent in the affidavits supporting the motion for preliminary objection. By those facts the respondents were contesting the facts averred in paragraphs 1, 3 and 4 of the petition.
The procedure adopted by the tribunal was clearly wrong. On the authorities just reviewed, the tribunal should have disallowed the respondent to introduce and rely on extraneous fact, but instead should have ordered them to file their replies and allowed the petition to proceed to trial. It was clearly wrong to have had recourse to the affidavit evidence in resolving the question of the petitioner’s/ appellant’s standing.
It should have in considering the preliminary objection to the competence of the petition, limited itself to the petition to see if there was anything in it from which it could be suggested that the petitioner lacked the locus to present the petition.
If it found nothing on the face of the petition to suggest that the petitioner’s sponsoring party had withdrawn from participation in the election, then it should have left the petition to follow the normal procedure for hearing on the merit. The law, as decided cases show, does not authorise the respondents to introduce facts extraneous to the petition and rely on such facts as the basis for challenging the competence of the petition by way of preliminary objection seeking to strike out the petition in limine. The defect in the petition warranting the challenge must be apparent on the face of the petition.
No ground for challenge that would necessitate what would clearly amount to a trial-before-trial is allowed by law to be introduced by the respondent. Paragraph 49 of the First Schedule to the Electoral Act, 2002, particularly sub-paragraph (5) thereof, makes this point abundantly clear. It provides:
“5. An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.” (Italics mine)
It is clear from this provision that the objection permitted to be taken here is one in respect of a defect on the face of the election petition.
Any defect that is not apparent on the face of the petition must wait to be addressed at the hearing of the petition after issues have been joined and evidence has been taken. If such defect as is brought out in evidence at the trial were such as defeats the petition then it would have operated as a good defence to the petitioner’s petition.
.In Ege Shipping and Trading Industry and Ors. v. Tigris International Corporation (1999) 14 NWLR.(Pt. 637) 70, the plaintiff alleged some facts in paragraph 2 of its amended statement of claim, which tended to show that it had a good cause of action against the defendants. The defendants in a motion to, infer alia, set aside the writ of Summons and statement of claim for non-disclosure of a cause of action, introduced facts contradicting the facts in paragraph 2 of the amended statement of claim.
The Supreme Court ruled that they could not legitimately do so. Ogundare, J.S.C., who read the lead judgment, remarked and held at pp. 84 and 85:
“Surely where a defendant is disputing an averment of fact made in a statement of claim, the proper way to do so is not by filing an application to have the plaintiff’s action dismissed in limine but to file a defence traversing that averment of fact and establishing I evidence at the trial on which the trial court will make a finding of fact either for or against the plaintiff on such averment of fact.
In the copious affidavit evidence placed before the trial court, effort was directed to showing the contrary of the averments in the pleading of the plaintiff. In my respectful view the way to do this is by traversing, in a statement of defence, such averments and not come by way of application to dismiss in limine.
I have considered all the grounds upon which the defendants sought in the Federal High Court to have plaintiff’s action dismissed in limine; … The use by the defendants of affidavit. evidence to counter or traverse matters of fact pleaded by the plaintiff is clearly not a correct practice or procedure. In an application of the nature brought by the defendants, it must be presumed that all the facts pleaded by the plaintiff are correct.
“Where the defendants dispute any of such facts they must file a statement of defence and lead evidence at the subsequent-trial in support of their case.”
See also Akinbi v. Military Governor; Ondo State (1990) 3 NWLR (Pt. 140) 525, at 531 and 532; Shell-BP Petroleum Development Co. of Nigeria Ltd. and 5 Ors. v. M. S. Onasanya (1976) 6 SC 89, 94; Warri Refinery and Petrochemical Co. Ltd. and Anor v. Onwo (1999) 12 NWLR (Pt. 630) 312 at 326.
For the reasons that I have given here I would resolve this issue also in favour of the appellant. It is for these reasons and the fuller reasons in the lead judgment that I would allow this appeal. I abide by all the consequential orders in the lead judgment.
Appeal allowed
