Hon. Dino Melaye & Anor V. Yusuf Ayo Tajudeen & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of National Assembly Election Petition Tribunal holden at Lokoja, Kogi State, delivered on 15th July, 2011 wherein upon the preliminary objections filed on behalf of the 1st and 2nd Respondents, the Tribunal struck out the Appellants’ Petition for being incompetent.

The ground relied upon by the Tribunal for striking out the Petition was that the Petition was neither signed by the Petitioners nor their Solicitor named at the foot of the Petition but by an unnamed and unidentifiable person who is unknown to law.

The main issue in this Appeal has been narrowed down to whether the Election Tribunal correctly interpreted the Provision of Paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010 as Amended.

It was submitted on behalf of the Appellants that the use of the word “shall” in an enactment such as Paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010 (as Amended) connotes permissive or directory requirement and its non-compliance ought not to be examined in the abstract.

The learned Counsel for the Appellants urged that the Appeal be allowed and that the Petition be heard on its merit.

The learned Counsel for the 1st Respondent stated that it is not in dispute that the Petition, the subject matter of this Appeal was not signed by the Petitioners themselves nor by their Solicitor named at the foot of the Petition, but rather by an unnamed and unidentifiable person who signed for “Patrick I. N. Ikuweto, SAN, FCIARB”.

It was submitted on behalf of the 1st Respondent that the signing of the Appellants’ Petition by an unknown and an unidentified person rendered it incurably bad and that the Petition was not initiated by due process of law.

The learned Counsel for the 2nd Respondent also submitted that the failure of the Petitioners to comply with the mandatory provisions of Paragraph 4(3)(b) of the First Schedule of the Electoral Act 2011, rendered the Petition incompetent.

By Paragraph 4(3)(b) of the First Schedule to the Electoral Act 2010, (as Amended) it is provided that:-

The Election Petition shall further:

(b) be signed by the Petitioner or all Petitioners or by the Solicitor if any named at the foot of the Election petition.”

(underlining mine).

It is my view that the use of the word “shall” is mandatory in the Provisions set out above and non-compliance with it in an election petition filed renders such a petition void. By virtue of the said Provisions, an election Petition shall be signed by the Petitioners or by the Solicitor if any named at the foot of the Election Petition.