Chief Chuba Egolum V. General Olusegun Obasanjo & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This appeal was argued orally before us on 31/3/99 when judgment was reserved to 6/4/99. On that day I dismissed the appeal as well as the cross-appeal and indicated that I would give my reasons today. Here are my reasons for dismissing both the appeal and the cross-appeal.

Following the Presidential Election held throughout Nigeria on the 27th day of February. 1999, the 1st Respondent General Olusegun Obasanjo who was a candidate at the election was declared duly elected having scored 18,739, 154 votes against the votes of 11,110,287 scored by his opponent, Chief Samuel Oluyemi Falae. The Appellant herein on 16/3/99 filed a petition at the Court of Appeal Abuja against the election of the 1st Respondent. The Chief Electoral Officer of the Federation [Hon. Justice Ephraim Omorose Ibukun Akpata (rtd.), the Returning Officer in the Presidential Election and the Independent National Electoral Commission (INEC) were joined as 2nd to 4th Respondents in the petition. Also joined as Respondents were 56 Presiding Officers at various Polling Stations in the country.

For the purpose of this appeal the penultimate paragraphs of the petition are – 1. 2, 21 and 24(a) which read:

“1. Your petitioner Chief Chuba Egolum is a person who had a right to contest at the above election.

2. Your petitioner states that the election was held on the 27th day of February, 1999 when Chief Samuel Oluyemi Falae and General Olusegun Obasanjo were candidates, and on the 1st day of March, 1999 the 3rd Respondent declared that Chief Samuel Oluyemi Falae received 11, 110, 287 votes and that the said General Olusegun Obasanjo received 18,739,154 votes and returned General Olusegun Obasanjo as being duly elected President of the Federal Republic of Nigeria.
3. The petitioner scored in the said election a total of 11,627,789 lawful votes at the election.

24(a) The petitioner therefore prays:

(a) That it be determined that the 1st Respondent was not duly elected or returned and that the Petitioner was duly elected and ought to have been returned.”

(italics are mine for emphasis)

On the petition coming before the Court of Appeal for hearing objection was taken by the 1st and 2nd to 4th Respondents respectively to the competence of the petition. The Court of Appeal in its ruling held-

(1) that the petition substantially complied with paragraph 5 of the 4th Schedule to Decree No.6 of 1999 titled Presidential Election (Basic Constitutional and Transitional Provisions) Decree 1999 (hereinafter is referred to as the Decree) in that the petitioner’s address for service as stated in the petition was sufficient for the purpose of the law.

(2) That the petitioner has failed to comply with the provisions of section 50(2) of the Decree in that Presiding Officers affected by some paragraphs of the petition were not joined as Respondents to the petition. The Court ruled that no evidence should be led in respect of misconduct of election officials except those who had been made parties to the petition, and

(3) That although the petitioner would appear to have fallen within section 50(1)(a) of the Decree, having failed however, to specify the right he had to present the petition the petition was incompetent.

The Court then struck out the petition.

Both the Petitioner (who is the Appellant before us) and the 1st Respondent appealed against certain aspects of the Court’s ruling. The Petitioner contended that the Court was wrong in holding that evidence in respect of certain paragraphs of the petition could not be led and secondly that the petition was incompetent. The 1st Respondent cross-appealed against the decision of the Court below that the address given on the petition was sufficient compliance with paragraph 5 of Schedule 4 of the Decree. Both the 1st Respondent and the Petitioner, through their learned leading counsel, filed Briefs of Argument. Although there was no Practice Direction to this effect I have found the two Briefs very helpful in the determination of this appeal. I am very grateful to both Chief Are Babalola, SAN and Mr. S. A. Asemota. SAN for the assistance rendered in this respect. I commend their efforts.

The issues for determination in respect of the main appeal, that is, the Petitioner’s appeal, are two-fold. They are, as set out in the Appellant’s Brief:

“1. Whether a Petitioner who is admittedly entitled to present a petition under section 50(1)(a) of Decree No.6 of 1999 and who states the basis of that entitlement or right to do so in the body of the petition, has not satisfied the provisions of paragraph 5(1)(b) of Schedule 4 of the Decree.

2. Whether the Court of Appeal was right in holding that evidence cannot be led in respect of some paragraphs of the petition in which allegations of misconduct are made where the electoral or other officials of the Independent National Electoral Commission, concerned are not joined as parties.”

The issues set out in the Brief of the 1st Respondent are not dissimilar. They are just variants of the issues as formulated in the Appellant’s Brief but raise substantially the same questions. In the case of the cross-appeal the following two questions are raised in the Cross-Appellant’s Brief:

“1. Was the lower court right in not holding that the petitioner/1st respondent’s petition was fundamentally defective and therefore, incompetent for non-compliance with the mandatory provisions of paragraphs 5(4) and (5) of Schedule 4 to Decree No.6 of 1999.

2. Whether or not the lower court correctly interpreted the provisions or paragraph 50(1) of Schedule 4 to Decree No.6 of 1999 when it held that the said paragraph 50(1) of the said schedule 4 to Decree No.6 of 1999 enables it to overlook the petitioner/lst respondent’s non-compliance with paragraph 5(4) of schedule 4 to Decree No.6 of 1999.”‘

At the hearing of this appeal, Mr. Asemota SAN learned leading counsel for the Petitioner referred the Court to section 50 of the Decree and submitted that there was nothing in that section requiring a petitioner to state the basis of his right to present a petition. He submitted that the petition specified the right the petitioner had in presenting the petition and that paragraph 1 of the petition was sufficient compliance with the law. While conceding that the provisions of paragraph 5(1) of Schedule 4 are mandatory, learned counsel submitted that they could not override the provisions of section 50(1). He also submitted that the petitioner did not need to state in his petition the facts contained in section 2 of the Decree. It is learned counsel’s submission that there is no conflict between the Schedule and the Decree and that it was only the interpretation of the Court below that was in conflict with the Schedule in that the Court below enlarged the provisions of paragraph 5(1) of Schedule 4. He finally submitted that the petition was in conformity with the requirements of the law and urged this court to so hold.

On Issue (2), learned Senior Advocate referred to the case of Omoboriowo v. Ajasin (1984) 15 NSCC 82; (1984) 1 SCNLR 108 and observed that the case was based on the 1982 Electoral Regulations which, according to learned Senior Advocate, had the same purport as Decree No.6 of 1999. It is learned counsel’s submission that the timing of the order relating to non-joinder and exclusion of evidence was wrong. It is learned counsel’s view that the Court below should have allowed evidence to be led on those paragraphs and if in the process evidence of misconduct against electoral officers who were not joined were given such evidence would be ignored. Learned Senior Advocate explained that it was possible for an allegation of irregularity to be established without imputing criminal conduct to any official. He however, submitted that non-joinder of some officers should not defeat the giving of evidence to prove irregularity in an election petition.

He urged the Court to allow the appeal.

Chief Afe Babalola SAN learned counsel for the 1st Respondent referred to paragraph 1 of the petition and the decision of the Court below on it. Learned counsel observed that all the petitioner did was to lift the provisions of section 50(1) into paragraph 1 of the petition. He submitted that the provisions of sections 2 and 50(1) and paragraph 5(1)(b) of Schedule 4 to the Decree must be met. It is counsel’s view that by the use of the word “specify” in paragraph 5(1) of Schedule 4 the petitioner was required to “state in full and explicit terms, to particularise”, the right he had to present the petition. He submitted that there was no conflict between the Decree and the Schedule. He urged the Court to uphold the decision of the Court below on this issue.

On Issue (2), Chief Afe Babalola referred to paragraphs 9, 12 to 20 of the petition and submitted that those paragraphs contained allegations of heinous crimes or electoral offences against election officers in all the States mentioned in the said paragraphs. He observed that not all these officers were joined in the petition. Learned Senior Advocate submitted that the Court below was right in the conclusion it reached and that the decision of this Court in Omoboriowo v. Ajasin (supra) supported the Court below. He observed that the timing of tile order was not made an issue in the Court below nor is it made a ground of appeal to this Court.

On the cross-appeal, Chief Afe Babalola relying on Ngelizana v. Hindi (1965) NNLR 12 and Dada Ayo Fasanmi; (1965) WNLR, submitted that the petition was defective in that the petitioner’s address was not stated on the petition as required by law. He submitted that paragraph 50(1) of Schedule 4 could not cure the defect. He also was of the view that the Court of Appeal could not exercise its discretion suo motu but only on the application of an erring petitioner. He observed that there was no such application by the petitioner before the Court below. He urged the Court to allow the cross-appeal.

Chief Eghabamien, SAN learned leading counsel for the 2nd to the 60th Respondents adopted the arguments proffered by Chief Afe Babalola, SAN. He further submitted that a right to present the petition must be explained in the petition by the petitioner. He relied on Thomas v. Olufosoye (1986) 1 NWLR 669 at 686 B – D in support. He argued that it would amount to a breach of the rule of fair hearing if evidence were allowed concerning the conduct of election officials not joined as Respondents. He too urged the Court to dismiss the main appeal and allow the cross-appeal of the Ist Respondent.

Mr. Asemota SAN, in reply, reiterated his view that there had been substantial compliance with the Decree. He submitted that it was section 50(1) of the Decree that gave the Petitioner locus standi. He submitted equally that paragraphs 13 – 16 of the petition did not indict any election officer in particular except the INEC as a body and that body was joined as a Respondent in this petition. On the cross-appeal he referred the Court to part of the record of the Court below where that Court exercised its discretion in Petitioner’s favour pursuant to paragraph 50(1) of Schedule 4. He urged the Court to dismiss the cross-appeal.

In a short reply on the cross-appeal Chief Afe Babalola SAN observed that the Court below only dealt with the issue of address but not with the issue of occupier and the distance of that address within the judicial division, issues upon which he addressed the Court below extensively.

I think at this stage I need to set out the relevant sections of the Decree and the Schedule 4 thereto:

Section 2

“A person shall be qualified for election to the office of President if –

(a) he is a citizen of Nigeria by birth:

(b) he has attained the age of 40 years;

(c) he is a member of a political party and is sponsored by that political party: and

(d) he has been educated up to at least School Certificate level or its equivalent.”

Section 50:

“(1) An election petition may be presented by one or more of the following persons –

(a) a person claiming to have had a right to contest or be returned at an election: or

(b) a candidate at the election.

(2) The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, the Electoral Officer, Presiding Officer, a Returning Officer or that other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party.”

Paragraph 5 of Schedule 4:

“5- (1) An election petition under this Decree shall –

(a) specify the parties interested in the election petition:

(b) specify the right of the petitioner to present the election petition:

(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election: and

(d) state dearly the facts of the election petition and the ground or grounds on which the election petition is based and the relief sought by the petitioner.

(2) 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.

(3) The election petition shall further-

(a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned, having rolled the majority of lawful votes cast at the election or that the election may be declared nullified, as the case may be: and

(b) be signed by the petitioner or all the petitioners or by the Solicitor. If any, named at the foot of the election petition.

(4) At the foot of the election petition there shall also be stated an address of the petitioner for service within five kilometres of a post office in the Judicial Division, and the name of its occupier, at which address documents intended for the petitioner may be left.

(5) If an address for service and its occupier are not stated as specified in sub-paragraph (4) of this paragraph, the petition shall be deemed not to have been filed unless the Court of Appeal otherwise orders.

(6) An election petition which does not conform with sub-paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the Court of Appeal.

(7) The Form TF.002 set out in Schedule 5 to this Decree or one substantially like it, shall be sufficient for the purposes of this paragraph.”

Paragraph 50(1) & (4) of Schedule 4:

“’50- (1) Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Court of Appeal so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Court of Appeal may think fit and just.

(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Court of Appeal.”

Form TF.002 reads in part

PRESIDENTIAL ELECTION (BASIC CONSTITUTIONAL AND TRANSITIONAL PROVISIONS)DECREE 1999

IN THE COURT OF APPEAL

PETITION Suit No: ………………….

The election to the … for the … Constituency held on the day of .. 19….

Between

A.B …………………) Petitioner(s)

C.D ……………………)

And

E.F………………….. ) Respondent(s)

G.H…………………)

The petition of A. B. of … (or of A. B. of … and C. D. of … or as the case may be) whose names are subscribed.

1. Your petitioner A. B. is a person who voted (or had a right to vote, as the case may be) at the above election (or claims to have had a right to be returned or elected at the above election) or was a candidate at the above election, and your petitioner …, (here state in like manner the right of reach petitioner)”

ISSUE (1):

Section 50(1) prescribes the persons who may present election petition under the Decree. He is either a person claiming to have had a right to contest or be returned at the election or he was a candidate at the election. Contrary to the view expressed by Oguntade JCA when in his judgment he said:

“There is no doubt that section 50 of Decree No.6 of 1999 is a clear departure from the common law practice as to locus standi and to the law on the point in Nigeria. Under section 50 of Decree No.6 0f 1999, a person who was not a candidate at the election could come to court to challenge the conduct of the election. It is in my view a welcome change. I believe that the enthronement of democracy in Nigeria is sufficiently important to all Nigerians to enable anyone one who feels aggrieved to approach the court of redress.”

I do not think that the Decree opens the door as wide as stated by the learned Justice of Appeal. Only a person falling within the provisions of section 50(1) has the locus standi to present a petition under the Decree. In paragraph 1 of the petition filed by the Petitioner in the case on hand, he claimed to be “a person who had a right to contest at the above election”. The Court below was of the view that paragraph 1 was not sufficient to establish his locus standi and that the Petitioner should have gone further to state how he acquired that right.

I think the Court below is right. On the face of it paragraph 1 would appear to conform with Form TF.002 which by paragraph 5(7) would make the petition sufficient for the purposes of paragraph 5 of Schedule 4. But the Petitioner in paragraph 21 claimed that he scored 11,627,789 lawful votes at the election and prayed in paragraph 24(a) of his petition that it be determined that he was duly elected and ought to have been returned. He was thus claiming to be a candidate at the election who was voted for. By the confused state of his petition, he has thereby put the issue of his locus standi in question. It is unclear whether he was petitioning as a person who had had a right to contest (in which case he would have had to show that he is a member of a political party and he is sponsored by that political party as stipulated in section 2 of the Decree, but disallowed from contesting) or as a candidate. It becomes necessary, therefore, for him to state clearly in his petition the basis of which he was claiming to have a right to present the petition. Paragraphs 21 and 24(a) taken together are clearly in conflict with paragraph 1 of the petition and the trial Court, that is, the Court below was entitled to be assured of the locus standi of the Petitioner before allowing him to proceed with the trial of his petition. “The fundamental aspect of locus standi is that it focuses on the party asking to get his complaint before the (High) Court not on the issues he wishes to have adjudicated,” – per Obaseki JSC in Adesanya v. President of Nigeria & Anor. (1981) 2 NCLR 358: (1981) 12 NSCC 146, 173.

The importance of the standing of a litigant to bring an action was once highlighted by this Court, In Alhaji Olorunkemi Ajao v. Mrs. L.E. Sonola & Anor. (1973) 5 SC, 119 at 123, this Court, per Coker JSC, observed.

“We consider it generally accepted as a sound legal proposition that the plaintiff to an action must be competent to institute such an action and if such a plaintiff claims by substitution, he has the onus of proving that he has the legal capacity to do the legal act which he had set out to perform. In Lawal & Ors. v. A. Younan & Sons & Co. (supra), the question arose as to right of persons who were granted Letters of Administration in a Customary Court to administer the estate of a deceased person by virtue of that grant to sue for damages on behalf of the dependants of the deceased under the Fatal Accidents Acts, 1846. In the course of the judgment of the Federal Supreme Court, Ademola CJN observed at page 253 of the Report thus:-

‘On the view I have taken of this matter, it is clear that a person to whom power is given under Customary Law to administer the Estate of a deceased person, is a person empowered by that law to administer the estate of the deceased where Customary Law can be invoked, and such power cannot be extended to matters which are statutory rights under English Law and to which statutory remedies apply.’

We think it is settled that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it.”

See also: Ganioba & Ors. v. Esezi II & Ors. (1961) 1 All NLR 594; (1961) ANLR 668: (1961) 2 SCNLR 237; Senator Abraham Ade Adesanya v. The President of the Federal Republic & Anor. (supra); Fawehinmi iv. Akilu & Anor, In re Oduneye. DPP (1987) 4 NWLR 797. It is the bounden duty of the Court below to satisfy itself that the Petitioner had locus standi to present the petition, before proceeding with the hearing of the petition.

Form TF.002 appears to be in conflict with section 50(1) of the Decree in that it enlarges the scope of the persons entitled to present a petition when it speaks of “who voted (or had a right to vote, as the case may be).” It is this that must have misled Oguntade JCA into holding the view I quoted earlier in this judgment, surely section 50(1) does not confer a voter a right to present a petition. In so far, therefore, as Form TF.002 is in conflict with section 50(1) of the Decree, it is invalid. In any event, it cannot assist the petitioner in this case who, in one breath, claims to be a person who has had the right to contest and in another breath. He claims to be a candidate who scored votes and should be declared duly elected. Paragraph 5(7) of Schedule 4 which makes compliance with Form TF.002 sufficient for the purpose of paragraph 5 is of no assistance in this case. As Lord Denman CJ put it in R. v. Baines (1840) 12 A & E 210,226 – 227; and I agree with Him:-

“It was argued, for the defendant, that the form of the significavit itself, as given by stat. 53 G3, c. 127, in the schedule, proves that the Judge, i.e. the bishop, is the only person who ought to certify, as …. by divine providence … is a form that can only apply to a bishop. It would indeed be singular, if any change in this respect had been intended, that it should have been nowhere indicated in the enactments of the statute, and that this style and title should have been carefully preserved by it. Yet such form, although embodied in the Act, cannot be deemed conclusive of a question of this nature: we have also to consider the language of the section itself to which the schedule is appended and if there be any contradiction between the two, which upon fair construction there perhaps will not be found to be, upon ordinary principles the form, which is made to suit rather the generality of cases than all cases, must give way.”

It might be that an amendment of the petition would cure the confused state into which the Petitioner has put his locus standi but having regard to the fact that the time had passed for such an amendment to be made to the petition-see paragraph 15(2)(a) of Schedule 4 which provides:

“(2) After the expiry of the time limited by-

(a) section 49 of this Decree for presenting the election petition, no amendment shall be made –

(i) introducing any of the requirements of subparagraph (1) of paragraph 5 of this Schedule not contained in the original election petition filed, or

(ii) effecting a substantial alteration of the ground for, or the prayer in, the election petition, or

(iii) except anything which may be done under the provisions of sub-paragraph (3) of this paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition;”

the Court below was right not to have ordered an amendment of the petition.

In view of what I have been saying above I must resolve Issue (1) against the Appellant. I hold that this petition was rightly struck out by the Court below and I affirm that order.

ISSUE (2):

In view of the conclusion I have just reached on Issue (1) the question raised under Issue (2) has become academic. I do not therefore, consider it necessary to go into it any longer in this appeal

CROSS-APPEAL

I have considered the submissions of learned counsel for the parties. I find no substance in the cross-appeal. The Court below rightly, in my respectful view, exercised its discretion by applying the provisions of sub-paragraphs (1) & (4) of paragraph 50 of Schedule 4. It is not in dispute that the petition contains an address of the Petitioner though not strictly in the form laid down in paragraph 5(4) of Schedule 4. In view, however, of the powers conferred on that Court by paragraph 50(1) and (4) of Schedule 4, it has a discretion which in the circumstances of this case it rightly exercised in favour of the Petitioner. I, therefore, dismiss the cross-appeal as lacking in substance. The course of justice has moved a long way from the decisions in the cases cited to us by learned leading counsel for the cross-appellant. The emphasis now is more on doing substantial justice rather than on technicalities which the cross-appeal seems to be all about-see: Mathew Obakpolor v. The Stare (1991) 1 NWLR 113 at 129 where this Court, per Akpata, JSC, observed.

“That there was procedural irregularity is not in doubt. It is however an irregularity which has not led to a miscarriage of justice. The irregularity is not of a magistrate’s failure to comply at all with statutory provisions but of a failure to comply with it strictly. It is the paramount duty of courts to do justice and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions, or technicalities inherent in rules of court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified.”

Arua Eme v. The State (1964) 1 All NLR 416,421; (1964) ANLR 409 Onucha Anya & Ors. v. The State (1965) NMLR 62 at p. 65 and Edet Akpan v. The State (1986) 3 NWLR 225 at pp.232 & 235 were referred to and followed.

It is for the reasons given above that I dismissed both the main appeal and cross-appeal on 6th April, 1999.

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SC.45/1999