Engr. Boniface Obidigwe Nwankwo Offomah V. Chief Mike Ajegbo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
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.
- 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.
- 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.
In court counsel on all the sides addressed the court and adopted their respective briefs while learned counsel for the appellant also adopted his reply brief. He emphasised that his client’s petition was struck out at the Tribunal because the appellant did not state the winner of the election in his petition. He refers to paragraph 5(1)(c) of the Decree and submits that the omission was a mere irregularity. He refers to Adeleke v. Yerokun (1965) NMLR 291 at 294. He also refers to Section 79(1) of the Decree as to the grounds on which an election could be questioned. Learned counsel argues that the cases of Abimbola v. Aderoju (supra) and Ezeobi v. Nzeka (supra) were decided on different grounds.
Learned Senior Counsel in his further submission says that from the petition filed at the Tribunal the only deduction one could come to was that the petitioner was the winner of the election. Counsel refers to Ikeh v. Njoku (1999) 4 NWLR (Pt.598) 263 at 268 – 278. He emphasised the mandatory nature of paragraph 5(1)(c) of Schedule 5 of the Decree. The contention of learned counsel for the appellant that the motion to strike out is not supported by an affidavit is not an issue in this appeal, counsel for 1st respondent submits.
The main and perhaps the only issue in this appeal is whether the failure of the appellant to state the winner of the election vitiated his petition. But first, let me deal with the contention of learned counsel for the appellant that the winner of the election could be deduced from the averments in the petition. Paragraphs 3(c) and (d) of the petition are relevant. Paragraph 3(c) states:
“(c) Your petitioner scored 22,591 lawful votes in the election, while the 2nd Respondent scored 2,698 votes. Your petitioner therefore scored the highest number of lawful votes cast in the said election.”
Paragraph 3(d) states as follows:-
“(d) Your petitioner pleads that the figure of “279,851 votes” allegedly credited to the 1st Respondent in the said election are void for the reason that the 1st Respondent was not a lawful candidate in the election who may be voted for or returned: moreso, in the face of the averments in paragraph 3(a) hereof. The 1st Respondent was not therefore duly elected by a majority of lawful votes cast at the said election. Your petitioner pleads the DECLARATION OF RESULTS OF ELECTION (FORM EC.8E) issued by the 3rd to 5th Respondents given to your petitioner after the said election and contend that the name of the 1st Respondent ought not to have been included in the said FORM EC.8E.”
If the law allows a deduction to be made as to the winner, by no stretch of imagination could any deduction be made from the above averments as to the fact that the 1st respondent was the winner of the election. If anything, the possible deduction is that the appellant was the winner. Paragraph 3(c) says that the appellant scored 22,591 votes while the 2nd respondent scored 2,698 votes. Paragraph 3(c) did not credit the 1st respondent with any votes. Paragraph 3(d) says that the figure of “279,851 votes” allegedly credited to the 1st respondent are void. The petition has not credited the 1st respondent with any lawful votes. How can the court or any fair minded person “deduce” from the above that the petition stated that the 1st respondent was the winner? Apparently, the appellant was carried away by his contention that the 1st respondent was not qualified to contest the election and so he lost sight of what he was required to do to present a valid petition. That was unfortunate.
I shall next deal with another aspect of the appeal. The issues formulated by the appellant and the respondents are substantially the same. I have disposed of the first issue of the appellant and 1st issue of the respondents i.e. whether the averments in the petition did not disclose the winner of the election. In no where in the petition did the appellant disclose the winner of the election. This is why learned counsel for the appellant asked the court to go on a voyage of deduction in order to deduce the winner from his petition. I am not prepared to embark on such a voyage. The law does not allow it.
The 2nd issue of the appellant and 2nd issue of the respondents shall be considered together. The issue raised here is the effect of non-compliance by failing to state the winner of the election in the petition. Paragraph 5(1)(c) of Schedule 5 to the Decree is relevant in this respect.
It provides:
“5(1) Any election petition under this Decree shall –
(a) ……
(b) ……
(c) state the holding of the election, the scores of the candidates and the person returned as the wiener of the election; and
(d) ……
It is clear from paragraph 5(1)(c) of Schedule 5 of the Decree that three things must be averred in the petition i.e.
(i) the holding of the election
(ii) the scores of the candidates
(iii) the person returned as the winner.
The appellant apparently concedes that he did not specifically state the winner of the election and that is why he has asked us to deduce the winner from the petition. What is the effect of the non-compliance?
Paragraph 5(1) of Schedule 5 of the Decree is mandatory. It uses the word “shall”. I concede that in some cases “shall” may be interpreted to mean “may” but in the context in which it is used here, the word “shall” is not permissive. It is mandatory. A petition which fails to state the winner of the election is not presented in accordance with the Decree and is therefore null and void and of no effect. The non-compliance is not a mere irregularity as contended by counsel for the appellant. Learned counsel relies on the combined effect of paragraphs 15(3) and 50(1) of Schedule 5 of the Decree. I do not see how paragraph 15(3) and/or 50(1) can help the appellant. Paragraph 15(3) says, inter alia, that the Tribunal shall not be obliged to confine its inquiry or findings to the issues raised by the parties in the election petition and may without allowing or ordering the amendment of a statement of facts and grounds relied on in the petition inquire into any other issue otherwise raised, as the Tribunal may deem necessary. The sub-paragraph deals with issues or facts raised or averred in the petition. The sub-paragraph has nothing to do with averment of the name of the winner in the election. In any case, the petition must be properly argued before the Tribunal before it could be called upon to exercise its discretion in favour of a party. Paragraph 50(1) provides that “noncompliance with any of the provisions of the Schedule,….except otherwise stated or implied shall not render any proceeding void unless the Election Tribunal directs …..”, (Italics supplied). By the use of the word “shall” in paragraph 5(1) of Schedule 5 of the Decree, it is otherwise stated that non-compliance with any of the requirements of paragraph 5(1) of Schedule 5 shall render the proceeding void. Furthermore, paragraph 50(2) gives the Election Tribunal a discretion to direct that a proceeding is void. The tribunal has so rightly directed in this case. There is nothing that an appellate court can do. In Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411 the court had this to say about the use of the word shall in a statute.
“The word shall in its ordinary meaning is a word of command and one which has always or which must be given a compulsory meaning as denoting obligation. It has a peremptory meaning and it is generally imperative and mandatory. It has the invaluable significance of excluding the idea of discretion to impose a duty which may be enforced …”
In Abimbola v. Aderoju (snpra) the Court of Appeal while considering the provisions of paragraph 5(1) of Schedule 5 to Decree No. 36 of 1998 which is in pari-materia with paragraph 5(1) of Schedule 5 of Decree No.5 of 1999 said as follows:
“The provision of paragraph 5(1) of Schedule 5 to Decree No. 36 of 1998 is condition precedent sine qua non to an election petition …”
Again, in Ezeobi v. Nzeka (supra) the Court of Appeal came to the same conclusion as above in considering the provisions of paragraph 5(1) of Schedule 3 to Decree No. 37 of 1987, the provisions of which are similar to the provisions of paragraph 5(1) of Schedule 5 to the Decree under consideration in this appeal. I fully endorse the pronouncements made and the conclusions reached by the court in the above cases and hold that such conclusions apply to the case under consideration in this appeal.
One final point remains to be mentioned. It is the point raised by learned counsel for the appellant that the motion of the 1st respondent to strike out the petition is not supported by an affidavit. The contention is not correct. The motion is supported by an affidavit of six paragraphs – pages 26 – 28 of the record. A counter-affidavit was filed by the petitioner – see pages 29 – 30 of the record. If there were no affidavit, what was the petitioner countering in his counter-affidavit? I think that what learned counsel intended to contend was that paragraphs 4 and 5 of the said affidavit having been struck out there was not much left in the 1st respondent’s affidavit to support the motion. Be that as it may, the issue of the competence of the motion of the 1st respondent is not an issue in this appeal. In none of the issues formulated by the appellant or any of the respondents is the competence of the motion put in issue. None of the two grounds of appeal complained about the competence or otherwise of the motion for striking out the petition. Not being an issue in this appeal, it is not right or proper to consider it.
In any case, it is not necessary for the 1st respondent to file the motion. He could raise a preliminary objection in law on the petition. The preliminary objection will have the same effect as the motion.
In the final analysis, all the issues raised in this appeal are resolved against the appellant. The appeal fails and is hereby dismissed. Costs are as awarded in the judgment.
Other Citations: (1999)LCN/0591(CA)