Hon. (Mrs.) Obiageli Ilukwe V. Barrister Chuks Anah & Ors (1999)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
This is an election petition appeal in respect of the Local Government election conducted all the 5th December, 1998 under Decree No. 36 of 1998. The 1st respondent was declared as having won the election. The appellant brought a petition before the Election Tribunal which struck out his petition on the ground that the petition was not properly pending as the filing fees were not fully paid at the time of filing the petition as required by paragraph 37(1) (2) (3) of the 5th Schedule to Decree No. 36 of 1998 (hereinafter in this judgment referred to as ‘the Decree’).
Not satisfied with the striking out of the petition, the appellant has appealed to this court. The relief he seeks from this court as per his notice of appeal is “to set aside the decision of the Local Government Election Tribunal and list the petition for trial and determination.”
The appellant has also filed a brief of argument in which he formulated 2 issues for determination thus:
“1. Whether in the circumstances of this case the tribunal was correct in striking out the petition for being incompetent by reason of non payment by the appellant of the prescribed fees.
- Whether the tribunal was right to have struck out the petition when issues were yet to be joined.”
The appellant argued his issue No. I under 3 heads vis:
“i. Propriety of the tribunal entertaining an application challenging the competence or the action in the absence of a duly constituted motion, supported by affidavit.
ii. What should be the legal consequence of failure to pay fully the fees prescribed by Decree No. 36 of 1998 at the time or presentation of the petition.
iii. Propriety of the orders made by the tribunal, having regard to the substance of the petition before the tribunal.”
It is submitted by learned counsel for the appellant that under section 87(3) of the Decree the jurisdiction of the Election Tribunal to strike out a petition whether for irregularity or for being a nullity is exercisable only “on the motion of a respondent in an election petition”. By paragraph 51 of the schedule to the Decree the practice and procedure of the Election Tribunal shall conform as nearly as possible to the practice and procedure of the Federal High Court with such modifications as to give effect to the intendment of the Decree. Counsel relies on the provisions of Order 33 of the Federal High Court Rules. It is contended that the respondent did not file any motion paper. The 2nd – 5th respondents did not enter appearance. The oral application made to the tribunal, counsel argues, does not qualify as a motion in the absence of an affidavit. The tribunal therefore had no authority to strike out the petition. He refers to Timitimi v. Amabebe 14 WACA 374 at 376.
On the legal consequence of the failure to pay the full fees as prescribed by the Decree at the presentation of the petition learned counsel submits that the Decree does not prescribe any penalty for non-payment of filing fee. He argued that the appellant paid the fee assessed by the secretary to the tribunal. Counsel refers to N.B.N Ltd. v. Weide & Co. (Nig) Ltd. (1996) 8 NWLR (Pt.465). 150 at 165. He urges the court to apply the reasoning in Alawode v. Semoh (1959) SCNLR 91 (1959) 4 FSC. 27 at 29 – 30.
He referred to and relied on the section 13 (1) of the Interpretation Act Cap. 192 Laws of the Federation 1990. Learned counsel argued that undue reliance should not be placed on technicalities.
On issue No.2, counsel argued that when the petition was struck out on 25/1/99, issues had not been fully joined. The matter, he submits, was not yet ripe for hearing.
At the hearing of this appeal, learned counsel for the appellant adopted his brief. Mrs. Okonkwo who appeared for the 1st respondent filed no brief but was allowed by the court to argue without a brief. She was however not very helpful to the court.
The crux of this appeal is whether the tribunal was right in striking out the petition for non-payment of the requisite fee as prescribed by the Decree. Paragraph 37(1) (2) and (3) of the 5th Schedule to the Decree prescribes the fees to be paid on the presentation of the petition. The said sub-paragraphs provide as follows:
“37.(1) The fee payable on the presentation of an election petition shall not be less than N600.
(2) A hearing fee shall be payable for the hearing at the rate of N40 per day of the hearing but not exceeding N200 in all, but the Election Tribunal may direct a lower fee to be charged for any day of the hearing.
(3) For the purpose of sub-paragraph (2) of this paragraph, the petitioner shall take a deposit of not less than N200 at the time of presenting his petition.”
Learned counsel for the appellant has attacked, rather brilliantly, the striking out of the petition on 3 prongs as set out earlier in this judgment. In summary his grouse is that the tribunal acted without a formal motion supported by affidavit and that no such penalty as inflicted by the tribunal on non-payment of filing fee was prescribed by the Decree.
Let me deal with these more important objections of the appellant before I come to the less important ones. Section 87(3) or the Decree provides as follows:
“(3). On the motion of a respondent in an election petition, the Election Tribunal may strike out an election petition on the ground that it is not in accordance with the provisions of this part or this Decree or the provisions or Schedule 5 to this Decree.”
Learned counsel for the appellant has insisted that the use of the word “motion” in the section shall be given a technical interpretation and that any such motion shall be supported by an affidavit. When technicality suits counsel he projects it. When it does not suit him he musters all the power of advocacy at his command to destroy it. I do not think that that is the intendment of the Decree. From the record of appeal, when the petition was called up on the 25th January, 1999. Mr. Ikedionwu, learned counsel for the 2nd – 5th respondents moved the tribunal, on a preliminary objection, to strike out the petition for non-compliance with the provisions of paragraph 37 (1) (2) and (3) of the 5th Schedule to the Decree on the ground that the appropriate fees had not been paid. The petitioner and her counsel were not present at the tribunal to reply to the preliminary objection even though they were present when the hearing of the petition was fixed for the 25th January, 1999. It is my view that the word “motion” in section 870) of the Decree need not necessarily be a formal motion supported by an affidavit. The motion may be oral or in writing. An insistence of a motion in writing supported by affidavit as in ordinary civil cases will defeat the expediency with which election petition cases are dealt with. Even in the Federal High Court the filing of a formal motion supported by an affidavit is not a sine qua non before a motion could be moved. The court at its discretion allows an application (or motion) to be made orally without the formality of filing any document- See Order 13 rule 2 of the Federal High Court Rules. In any case, under paragraph 50(1) of the 5th Schedule to the Decree, non-compliance with a rule of practice does not ipso facto render any proceeding void. I hold the view that a motion or an application under the Decree may be made orally.
I now come to a more pertinent point raised by the appellant that is the legal consequences of failure to pay fully the prescribed fees at the time of the presentation of the petition. Paragraph 3(1) and (2) of the 5th Schedule prescribes the payment or an amount of not less than N3,000 as security for costs at the time of presenting the petition. Paragraph 37(1)(2) and (3) prescribes the payment of filing fee of N600 and not less than N200 as hearing fees respectively at the time of the presentation of the petition. What sanction or penalty does the Decree prescribe for a breach of the above provisions of the Decree? They are as follows:
a. For a breach of payment of the security fee at the time of presentation of the petition, there shall be no further proceedings on the election petition, while the time prescribed under sub-paragraphs (1) and (3) (sic) or paragraph 2 continues to run. (Note: There is no subparagraph (3) of paragraph 2, rather there is sub-paragraph (2) which prescribes the time for determining the appeal.) It seems to me that non-payment of full security fee as prescribed at the time of filing the petition is fatal to the petition.
b. As regards the filing fee of N600 and hearing fee of not less than N200 as prescribed by paragraph 37(1) (2) and (3) of the schedule to the Decree, they must be paid at the time of the presentation of the petition. Although the Decree does not specifically prescribe a penalty for non-compliance, the fare of a petitioner who failed to comply is caught by section 82 of the Decree. It provides that:
“An election petition under this Decree shall be presented within fourteen days from the date on which the result of the election is declared.”
If therefore a person who intends to file an election petition fails to pay the prescribed fee for presentation of an election petition, which fee shall be paid on the presentation of the election petition under paragraph 37 of Schedule 5 then he has not presented an election petition within the Decree. This is an inevitable and inescapable situation on the matter. In Olaniyonu v. Prof. Eme Awah (1989) 5 NWLR (Pt.122) 493 at 501 and 502 the Court of Appeal per Akanbi J.C.A. (as he then was) had this to say:
“The issue of payment of fees or security for costs is fundamental to the hearing of the petition. They are not mere matters of form.
Without such payments, the petition has no legs to stand on, and it must necessarily collapse.”
See also Ogbolumani v. Okobi (1959) WRNLR II; Ngoh v. Ndoke 5 F.S.C. 90 (1960) SCNLR 205 per Ademola C.J.F. Onwugbufor v. Okoye (1996) 1 SCNJ 36 or (1996) 1 NWLR (Pt.424) 252.
The record of appeal shows that the appellant did not pay the requisite fee as prescribed by the Decree. Of the N600 prescribed as the filing fee, the appellant paid only N500 at the presentation of the petition. There is no evidence that he has paid the balance up till now. No hearing fee was paid. Of the N3,000 prescribed as security fee, the appellant paid only N1,000.00 at the presentation of the petition on 18/12/98. Ten days later, on 28/12/98 he paid another N2,000.00. These payments and non-payment are not in accord with the provisions of the Decree.
For all the reasons given above or a combination of some of them this appeal must fail and is hereby dismissed with N3.000.oo costs to the 1st respondent.
Other Citations: (1999)LCN/0474(CA)