Engr. Boniface Obidigwe Nwankwo Offomah V. Chief Mike Ajegbo & Ors (1999)

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UBAEZONU, J.C.A.

On 12th May, 1999 we heard this appeal. Following a request by learned counsel for the appellant to the effect that the matter was very urgent, we adjourned for judgment the next day 13/5/99 and stated that we would give our reasons later. Judgment in the appeal was duly delivered on 13/5/99 dismissing the appeal with N3,000 costs to the 1st respondent and N1,000 to the 3rd – 5th respondents. We stated that the reasons for the judgment would be given on 27/5/99. We hereby give the reasons.

The appellant and 1st and 2nd respondents contested the Anambra Central Senatorial seat election of 20/2/99. The 1st respondent was declared the winner. The appellant filed an election petition against the 1st respondent. Following a motion by the 1st respondent to strike out the petition for non-compliance with a provision of Decree No.5 of 1999, the Election Tribunal on 23/4/99 struck out the said petition. Dissatisfied with the said ruling, the appellant appealed to this court. He filed a brief of argument and therein formulated the following two issues for determination viz

“(1) whether the pleadings in the petition did not disclose the winner of the election;

(2) whether the petition did not substantially comply with the requirements of schedule 5 paragraph 5(1)(c) of Decree No.5 of 1999.”

Arguing the said issues together the appellant rightly pointed out that the two issues are concerned with the failure to state the winner of the election in the petition as required by paragraph 5(1)(c) of Decree No.5 of 1999 (hereinafter referred to in this judgment as “the Decree”). Learned counsel for the appellant argued on one hand that the petitioner’s contention was that the 1st respondent was not qualified to contest the election, and on the other hand that it should be deduced from paragraphs 1(e), 3(c) and 3(d) of the petition that the 1st respondent was the winner of the election as was declared by the INEC in Form EC.8E. Counsel dwelt at length on doing substantial justice as opposed to technicality. He referred to Consortium M.C v. NEPA (1992) 6 NWLR (Pt.246) 132 at 142; Samson Daudu v. John Samci (1989) 1 NEPLR 64 at 78. Even if it is held that the name of the winner is not separately and distinctly stated, counsel argues, the omission should be regarded as mere irregularity which does not affect the substance of the petition, and has misled nobody. He relies on paragraphs 15(3) and 50(1) of Schedule 5 to the Decree. He submits that non-compliance with paragraph 5(1)(c) of Schedule 5 is procedural, and does not offend the combined effect of section 44(1) and section 79(1) of the Decree. He refers to Kuburi v. Tar (1989) 1 NEPLR 11 at 17.

Counsel further argues that the alleged non-compliance ought to have been overlooked or remedied by virtue of paragraph 15(3) of schedule 5 of the Decree. Learned counsel went on to attack the motion that led to the striking out of the petition. He submits that the motion did not comply with paragraph 50(3) of Schedule 5 of the Decree in that the motion was not supported by an affidavit paragraphs 4 and 5 of the affidavit having been struck out. He refers to Free Enterprises Nig. Ltd. v. Global Transport Oceanico S.A. (1998) 1 NWLR (Pt.532) 1 at 19.

In his brief the 1st respondent formulated two issues for determination i.e.

“1. whether the petitioner stated the winner of the election of 20/2/99 in his petition in compliance with paragraph 5(1)(c) of Schedule 5 of Decree No.5 of 1999.

2. whether the non-compliance with any of the mandatory requirements as laid down in the said paragraph 5(1)(c) of Schedule 5 of Decree No.5 of 1999 is fatal to the petition.”

Learned Senior Counsel for 1st respondent raises a preliminary issue to part of the argument in the appellant’s brief. The preliminary issue touches on the argument of counsel for the appellant that the 1st respondent’s motion to strike out the petition was not supported by an affidavit. Counsel submits that no issue is formulated against the motion. Any argument which goes outside the issues formulated cannot be countenanced – see Chinwuba v. Alade & Ors. (1997) 6 NWLR (P1.507) 85 at 91; Ogunsola v. NICON (1996) 1 NWLR (Pt.423) 126 at 129.

Arguing his two issues together learned Senior Counsel submits that the petition did not state the winner of the election of 20/2/99 as required by paragraph 5(1)(c) of the Decree. Counsel argues that the use of the word “shall” in the said paragraph imports command – see Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411 at 414. The deduction which the appellant urges the court to arrive at from his brief is, in effect, that the appellant was the winner. Counsel refers to Abimbola v. Aderoju (1999) 5 NWLR (Pt.601) 100 at 103; Ezeobi v. Nzeka (1989) 1 NWLR (Pt.98) 478 at 481.

The 3rd – 5th respondents also filed a brief of argument and therein formulated two issues thus:

“1. Whether the petitioner stated the winner of the election of 20th February, 1999 in his petition in compliance with paragraph 5(1)(c) of Schedule 5 of Decree No.5 of 1999.

2. Whether non-compliance with any of the mandatory requirements laid down in paragraph 5(1) of Schedule 5 of Decree No.5 of 1999 is fatal to the petition.”

The argument of learned counsel for 3rd – 5th respondents is substantially in support of the argument of learned Senior Counsel for 1st respondent. The appellant filed a reply brief in reply to some of the arguments of the 1st respondent.