Hon. Innocent Ikeakor V. Barrister Val. Elosiuba & Ors (1999)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
In the Gubernatorial and State House of Assembly Election held on the 9th day of January 1999, the petitioner now the Appellant and the 1st Respondent contested the said election for membership of the Anambra State House of Assembly for Onitsha South Constituency II, under the platforms of the Peoples Democratic party (PDP) and the All Peoples Party (APP) respectively. At the end of the polls, the 1st respondent was declared the winner of the election. Dissatisfied with the result, the petitioner filed his petition challenging the return of the 1st respondent. All the Respondents filed a conditional memorandum of appearance. Meanwhile 1st Respondent filed on the 4/3/99 a motion praying the Tribunal for an order striking out the Petition for non-compliance with the mandatory requirements of the State Government (Basic Constitutional and Transitional Provisions) Decree of 1999, and Schedule 6 thereto. On the 8/3/99 the 2nd to 5th respondents filed their motion praying the Tribunal for an order striking out the petition on the grounds arising from the petitioner’s failure to comply with the mandatory provisions of the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999 since the two motions were praying for the same reliefs they were consolidated and heard by the Tribunal which struck out the petition on the ground that the petition did not substantially comply with the provisions of paragraph 5 sub-paragraphs 4 and 7 of Schedule 6 to the Decree No.3 of 1999.
The Appellant dissatisfied with that ruling appealed to this Court and filed 4 grounds of appeal as follows:-
“1. Error in Law
The Learned members of the State House of Assembly Tribunal erred in law by over ruling preliminary objection raised by the appellant’s counsel against the respondent’s preliminary objection to the petition filed by the appellant.
- Error in Law
The Learned Tribunal erred in Law by holding that non-compliance with paragraph 5(4), and (7) of Schedule 6 to Decree No.3 of 1999 renders the petition incurably defective and incompetent.
- Error in law
The Tribunal erred in law by holding that the petitioner/appellant did not comply with the provisions of paragraph 5(4), and (7) of Schedule 6 to Decree No.3 of 1999.
Error in Law
The Learned Tribunal erred in law by rejecting the document tendered by the petitioner/appellant.”
The Appellant formulated 2 issues for determination as follows:-
“1. Whether non-compliance with paragraphs 5(4) and (7) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999 is a fatal defect to an election petition under the said Decree.
- Whether the respondent’s counsel complied with the provision in paragraph 50(3) of Schedule 6 to Decree 3 of 1999.”
The 1st Respondent on the other hand set out 3 issues for determination in the appeal as follows:-
“A. Whether the petitioner complied with the provisions of paragraphs 5(4) and 5(7) of Schedule 6 of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1999. Whether the non-compliance with the provisions of the said paragraphs 5(4) and 5(7) of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1999 is fatal to the petition.
Whether the application of the respondents to strike out the petition complied with paragraph 50(3) of Schedule 6 of the State Government (Basic Constitutional and Transitional Provisions) Decree 1999.”
Issues Nos. 1 and 2 identified by the Appellant for determination are the same with the 1st Respondent’s issues No. ‘B’ and ‘C’ respectively.
C.O. Anah Esq., Learned counsel for the Appellant adopted the appellant’s brief. He submitted with particular emphasis to the Appellant’s 2nd issue, and said that the Respondent’s counsel has failed to comply with the mandatory provisions in paragraph 50(3) of Schedule 6 to Decree 3 of 1999, that an applicant to set aside an election petition shall show clearly the legal grounds on which the application is based. Learned counsel submitted that the two consolidated motions filed by the respondents in an effort to set aside the petition filed by the Appellant did not meet this requirement. That the Respondents failed to specify the legal grounds for their application. He further submitted that to state the grounds in the Affidavit is to offend S.86 of Evidence Act dealing with contents of Affidavit which should contain only a statement of facts and circumstances to which the witness deposes.
It is submitted that reliance on Affidavit to fish out the legal grounds is not fulfillment of the mandatory provision in paragraph 50(3) of the Schedule. For this the Tribunal should not have allowed the Respondents’ counsel to move their motions to strike out the petition and the Tribunal could not have raised it suo motu because paragraph 50(3) Schedule does not permit that.
On issue No.1, learned counsel submits that strict compliance with paragraphs 5(4) and (7) of Schedule 6 dealing with address and names of occupier and attestation clause respectively is not necessary as long as substantial compliance with the provisions have been made. It is further submitted that the reasons for the provision of sub-paragraph 4 are quite obvious. This is for an easy reach out to the petitioner who will be served within 5km. of a post office within the Judicial Division and to ensure that the name of the occupier of the premises is provided so that the documents intended to be served on the petitioner are left with the occupier.
It is submitted that this provision is not intended to render a petition void if not complied with, since to argue otherwise is to invent technicality to defeat the course of justice which the Courts have decried. He referred and relied on Nwobodo v. Onoh (1984) I SC.I (1984) 1 SCNLR 1. Learned Counsel submits that if the petitioner fails to provide the address for service of the documents on him, his petition should not be struck out, but he can call in aid paragraph 50(1) of Schedule 6 to remedy the non-compliance.
Learned counsel advanced similar argument for non-compliance with respect to paragraph 5(7) of Schedule 6 of the Decree which deals with TF.002. It is submitted that non-compliance is a formal defect and can be treated as a mere irregularity which can be remedied by invoking paragraph 50(1) of the 6th Schedule. That all efforts to invoke this paragraph by bringing the Secretary to testify Viva voce that he was present when the petition was signed by the petitioner, proved abortive before the Tribunal. He submitted that provision in paragraph 5(7) is merely formal and cannot be used to forestall substantial justice in a democratic setting, where the Tribunal is set up to investigate who had a majority of lawful votes.
Learned counsel for the appellant has urged this Court to set aside the decision of the State House of Assembly Election Tribunal and send the petition back to the Tribunal for trial on the merits. He made alternative relief that the Court should exercise its powers under Section 16 of the Court of Appeal Act and hear and determine the petitions on its merits.
Learned counsel for the 1st Respondent Emeka Agbapuonwu Esq. submitted both the 1st Respondent’s brief and his oral presentation before us in respect of the 1st Respondent’s first and 2nd issues that there has been non-compliance with paragraph 5(4) and (7) of 6th Schedule to Decree No.3 of 1999 which is fatal to the appeal. It is submitted that compliance with the provision of paragraph 5(4)and 5(7) are mandatory. He referred and relied on the case Iyedefe v. Ali (1965) NNLR 26. where the Northern Nigeria High Court held that the failure to state the name of the occupier was fatal to the petition and the Tribunal was right to have struck out the petition, since the words of paragraphs 5(4) and 5(7) of Schedule 6 is mandatory. Learned counsel referred to and relied on the following cases:
(i) Ngelizana v. Hindi (1965) NNLR 12
(ii) Okeabor v. Bare (1959-61) NNLR 1-1
(iii) Ogedengbe v. Fojemisin (1959) NNLR 36 at P.38:
Where the Courts held that the defects in the petition of the petitioner for non-compliance with paragraphs 5(3) and (7) are incurable defects. On the second issue as to whether the application of the Respondents to strike out the petition complied with paragraph 50(3) of the Schedule, learned counsel submitted that the law requires that all application to set aside an election petition or a proceeding pertaining to it shall show clearly the legal grounds on which the application is based. It is submitted that the 1st Respondent’s application to strike out the petition clearly shows the ground of objection as compliance with Schedule 6 of the Decree.” That the particulars of the ground are further stated in the Affidavit filed by the 1st Respondent on 8/3/99 and 9/3/99. It is further submitted that by filing a conditional memorandum of appearance the 1st respondent had given notice to the petitioner that he would raise objection to the petition on grounds of law, in compliance with paragraph 15(5) of Schedule 6.
Learned counsel finally submitted that the facts averred in the two Affidavits of the 1st respondent are correctly accepted by the tribunal since the petitioner did not challenge them in his Affidavit. It is also submitted that the petitioner did not request the better particulars from the 1st Respondent which he could have done under the Rules of the Federal High Court which is applicable by virtue of paragraph 51 of Schedule 6. Concluding his argument learned counsel submitted that the case of Akunne Ozobia v. Chuks Anah CA/E/12/99, (1999) 5 NWLR (Pt.601)1, is not applicable here as the appeal in that case was decided on the issue of non payment or necessary fees and not on non-compliance with other provision of the Schedule to the Decree. The issue of Address for service and attestation before the Secretary were not mentioned in the appeal, Learned counsel further concluded his submission that the case of Nwobodo v. Onoh (1984) supra relied upon by the Appellant is not applicable because the appeal in that case was contended on the issue of payment of Security deposit. This Court is therefore urged to dismiss this appeal as it lacks merit.
Issues formulated by the parties have been identified and narrowed down for determination as follows:-
(i) Whether the application of the Respondents to strike out the petition of the petitioner complied with paragraph 50(3) of Schedule 6 of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1999.
(ii) Whether the non-compliance with the provisions of paragraphs 5(4) and 7 of the State Government (Basic Constitutional and Transitional provisions) Decree, 1999 is fatal to the petition.
The State House Assembly Election Tribunal sitting at Awka held on 10/3/99 that substantial compliance with paragraph 50(3) of Schedule 6 to the Decree has been made by the Respondents in their motions, because their applications show clearly the legal grounds on which their application is based.
The motion of the 1st Respondent to which the appellant raised an objection states inter alia:-
“this Honourable Tribunal will be moved as 1st Respondent or his counsel can be heard praying for an order;
(1) Striking out this petition for non-compliance with the mandatory requirements of the State Government (Basic Constitutional and Transitional Provisions) Decree 1999 and Schedule 6 thereto.”
The trial Tribunal found at P.52 of the Record “three Affidavits filed in support of the application have gone further to supply the particulars of the legal ground of non-compliance in paragraph 3 of Further Affidavit and paragraphs 2-4 of Further Further Affidavit at pp. 24 and 28 of the Record respectively.
Paragraph 3 of the Further Affidavit states:-
“3. That this honourable Tribunal is sitting in Akwa which is a judicial division and which has a post office along Zik Avenue, Akwa.
Paragraphs 2-4 of Further Further Affidavit are:-
“2. That the petitioner did not state an address of a post office within 5km of post office within judicial division.
- That there is a post office in Akwa.
- That Onitsha is not within Awka judicial division.”
The necessary intendment of the legislature in enacting paragraph 50(3) requiring an application to set aside an election to show legal grounds on which the objection is based, is to avoid the element of taking the petitioner by surprise. Once a conditional memorandum of appearance has been filed and notice given to the petitioner that he would raise an objection and legal grounds given as in this case… I think paragraph 50(3) of Schedule 6 has been complied with. Paragraph 10(5) of the Schedule provides:-
“10(5). A respondent who has a preliminary objection against the hearing of the election petition on grounds of law may file a conditional, memorandum of appearance.”
I am of the view that the memorandum of appearance which is conditional, the application to strike out the petition and the two Further Affidavits have clearly put the petitioner on sufficient and adequate notice of the objection and its legal grounds, on which it is based. The Tribunal was right to have allowed the Respondents counsel to move their motions to strike out the petition.
As to the second poser, the Tribunal held that non-compliance with paragraphs 5(4) and (7) of Schedule 6 of Decree No.3 renders the petition incurably defective and incompetent.
Learned counsel for the Appellant has submitted that defects, if any, by not complying with the provisions of paragraphs 5(4) and (7) of Schedule 6 are formal which can be cured by paragraph 50(1) of the same Schedule. Learned counsel for the 1st Petitioner has taken contrary view that compliance with the provisions of paragraphs 5(4) and 5(7) are mandatory, non-compliance with these provisions are fatal to the petition. The learned Tribunal took to this view and held so.
Paragraph 5(4) provides:-
“If an address for service is omitted as specified in sub-paragraph 4 of this paragraph the petition shall be deemed not to have been filed.”
Italics mine for emphasis.
Paragraph 5(5) of the Schedule provides that non-compliance with paragraph 5(4) will be construed as if the petition had not been filed.
The Tribunal has held that where the address for service and its occupier are not stated in a petition the petition is incompetent and it is so held in this Appeal.
The earlier cases of Sixties which deal with Electoral Act of 1962, having similar provisions as paragraph 5(4) have decided that failure to include in an election petition the name of the occupier of the petitioner’s address for service is not a formal defect or mere curable irregularity, notably in Ngelizana v. Hindi (1965) supra; Okeabor v. Bare (1959-60. (supra) Ogedengbe v. Fajamisin 91959) (supra) and iyedufe v. Ali (1965) NNLR P.26. In the recent Appeal No. CA/E/42/99 Chief John Olibie v. paul Chigbo Okeke and 4 Ors; (1999) 8 NWLR (pt.613) 165 when paragraph 5(4) of Schedule 6 came for consideration I had this to say;
“The petition cannot be regarded as validly presented where paragraph 5(4) which is mandatory is not complied with regardless of the fact that it appears in a Schedule and that the sub-paragraph terminates with a discretion reserved in the Tribunal.”
I went further in that case to say that the exercise of discretion by the Tribunal must have regard to S. 132 of the Decree which specifically provides that presentation of a petition shall be done within a period of 30days from the date of publication of result. An obvious consequence that will follow this is that if the Tribunal does not direct otherwise, within the time limited for presentation of a petition, a petition which failed to disclose ‘the name of an occupier of an address for service could not be taken as validly presented petition within the statutory period of 30 days.’
In the Further Further Affidavit in support of the 1st Respondent’s motion he avers in paragraphs 2, 3 and 4 as follows:-
“Paragraph 2: That the Petitioner did not state an address within 5km of post office in the Judicial Division.
Paragraph 3: That there is a post office in Akwa.
Paragraph 4: That Onitsha is not within Akwa Judicial Division.”
2nd to the 5th Respondents aver in paragraphs 3, 4 and 5 (a) of their Affidavit as follows:-
Paragraph 3, That this Honourable Tribunal is sitting at Awka which is a judicial Division and which has a post office along Zik Avenue Awka.
Paragraph “4. That Onitsha is about 70km, away from Awka.
Paragraph “5(a) That the petitioner’s failure to state in his petition both the address for service within 5 kilometres of a post office, within Awka Judicial division where this Tribunal is sitting and the name of the occupier of such address has deprived this Honourable Tribunal of jurisdiction to entertain this petition.”
It is interesting that the Tribunal based its, ruling on these paragraphs of the two Affidavits and found that from the petition filed the name of the occupier of the address is not stated. It went further to say that the address for service within 5km of a post office within Awka Judicial Division is not given but within Onitsha Judicial Division about 70 kilometres from Awka. It then held that the petition has not conformed substantially with the provision of paragraph 5(4) of Schedule 6 to Decree of 1999. The reason for the provision of sub-paragraph 4 of Schedule 6 is quite clear. It is for easy reach out to the petitioner who is expected to be served within 5km of a post office within the Judicial Division. In his petition the petitioner gave his address for service within 5km. of a post office within Judicial Division which is No.33 Iboku Street, Odoakpu Onitsha. It does not have to be at Awka where the Tribunal was sitting as the Tribunal erroneously misconceived. It is in this light that I say here that the Tribunal is wrong to have found that paragraph 5(4) is not duly complied with. The petitioner in the 1st paragraph of his petition gave his address as No. 33 Iboku Street, Odoakpu Onitsha and repeated the same al the last page of his petition. He has substantially complied with paragraph 5(4) of the 6th Schedule. It is with paragraph 5(7) he has not complied with.
However, paragraph 5(7) provides as follows:-
“The Form TF.002 set out in Schedule 7 to this Decree or one substantially like it, shall be sufficient for the purpose of this paragraph.
Form TF.002 is the format of an Election Petition under this Decree. At the foot or the form it is provided that the petition shall be signed before the Secretary of the Tribunal. Counsel for the 1st respondent submits that compliance with this provision is mandatory and non-compliance with it is fatal to the petition. The absence of attestation clause in a petition is a serious omission. Where a document requires attestation it follows that his requirement being a statutory provision must be strictly complied with. See recent decision of this Division in Nnaemeka Ikechukwu Orizu v. Alphonsus Okey Uzoegwu & 2 Ors. CA/E/45/99 (1999) 6 NWLR (pt.605) 32.
Nigeria Law Dictionary – 1st Edition, by Barrister Suleiman Nchi defines “Attestation” as:-
“the appending or signature to a document executed by another by a person who is not a party to it in order to testify to its validity or genuineness.
It is to vouch for the validity or genuineness and authenticity of the petition that paragraph 5(7) provides for Form TF.002.
Paragraph 50(1) gives the Election Tribunal the discretion to direct as to what to do in case of non-compliance with any provision of the 6th Schedule to the Decree. If such discretion is not exercised arbitrarily I do not see how this Court can interfere. See Solanke v. Ajibola (1968) 1 All NLR 46; I therefore hold in the circumstance, that the petition was incompetent for failure to comply with paragraph 5(4) and (7) of Schedule 6 of tile Decree No.3 of 1999. In the final result this Appeal fails and is hereby dismissed with N3.000 costs to the 1st respondent.
Other Citations: (1999)LCN/0636(CA)