Hon. Okoto Foster Bruce V. Ebikeme Frank Ere & Ors (2003)

LawGlobal-Hub Lead Judgment Report

ABOYI JOHN IKONGBEH, J.C.A.

This is an appeal from the decision of the National Assembly/ Governorship and Legislative Houses Election Petition Tribunal, sitting at Yenagoa. The appeal is by the petitioner before the tribunal and originally related to two rulings of the tribunal. The first ruling was on the petitioner’s objection to the appearance by the Bayelsa State Attorney-General for I.N.E.C. and its official, which objection the Tribunal overruled. When at the hearing of the appeal we drew the attention of the appellant’s counsel to the portion of the record which showed that INEC debriefed the Attorney-General immediately after this ruling and that another counsel took over, counsel abandoned the aspect of the appeal relating to that ruling.

Therefore the appeal as argued relates only to the second ruling wherein the tribunal struck out the appellant’s petition, on the objection by the respondents on the ground that it did not comply with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act 2002,the non-complice alleged by the respondents and found by the Tribunal was that the petitioner, in disregard of the requirements of the said sub-paragraph, failed to state on the face of his petition the scores of the candidates as declared by INEC.The petitioner in reaction to the objection insisted that by pleading in paragraph 11 of his petition that the said scores were contained in forms EC80(1) & EC83(1), issue by INEC, and that he would rely on the forms at the trial to show the scores, he had substantially met the requirement of Act. The respondents, through their counsel, however, persuaded the tribunal to hold, and it did hold, that the pleading in paragraph 11 did not satisfy the requirements.
Hence this appeal.

Mr. P. Agedah, for the appellant, formulated three issues for determination on this aspect of the appeal in his brief of argument. Mr. A Akpomuje S.A.N. for the 1st respondent, formulated two. Considering the main point canvassed before, and ruled on, by the Tribunal and the grounds of appeal, I think the single issue formulated by Mr. U Ogedegbe, by the 2nd – 22nd respondents, suffices to dispose of the appeal. He asked the pertinent question-
“Whether the pleading the form which contained the scores of the candidates in an election satisfies and or amounts to compliance with the requirement of state the scores of the candidates’ in an election petition brought under the Act.”

In answer to this question, Mr. Agedah, for the appellant, started by conceding that “it is not in doubt that the petition does not contain the raw figures declared by the 22nd respondent on its face”. He pointed out, however, that “it is also not in doubt that form EC.8E(1) pleaded in the said paragraph contains the declared results of the election which is now the subject matter of the petition.”

After setting out the terms of paragraph 11 of the petition counsel pointed out that the following facts emerge:
“a) That 1st respondent was officially declared winner of the election.
b) That the declaration was made by means of form EC.8E(1) … and
c) That the declaration was made by the 2nd respondent.”

Citing Egolum v. Obasanjo & Ors (1999) 69 LRCN 1156, at 1210 (also (1999) 7 NWLR (pt.611) 355 at 396) in support of the proposition that a petition is like a pleading in an ordinary civil case, counsel pointed out that the purpose of pleading is “to give the opposite party notice of the case he has to meet at the trial.” The respondents, counsel pointed out, will not be prejudiced “by being taken by surprise since they have sufficient notice of the case they are to meet in court, especially since by S.65 of the Act Form EC.8E(1) is a document, a copy of which each candidate is entitled to. Finally, counsel urged us to do substantial justice by ignoring the technical point that the scores of the candidates were not stated directly on the face of the petition.

In the submission of Mr. Akpomuje, S.A.N., for the 1st respondent, nothing short of starting the scores of the candidates on the face of the petition itself suffices to satisfy the requirements of paragraph 4(1)(c) of the Schedule. According to the learned senior advocate, “from the provisions of the Electoral Act 2000… a petitioner is enjoined to plead those material facts as clearly as stated in paragraph 4(1)(c)..” (italics mine) Senior counsel further submitted that “Form EC.8E(1) pleaded is evidence required during the trial if the petition had gone to trial with which the petitioner may prove the scores. However, at the stage of pleadings in the petition a Petitioner is only required to state the scores of each of the candidates.” He drove the point home by forcefully submitting that-
“Once on the face of the petition the scores are not stated it is not the duty of the court or tribunal to scrutinize the pleadings or go on a voyage of discovery to know if at the trial the petitioner will be able to prove the scores at that stage. The court cannot even say at that point in time whether or not the so called form EC.8E(1) will contain the scores of the candidate.” (Italics mine).

Mr. Ogedegbe, for the 2nd – 22nd respondents, is even more blunt in his view. According to him a person who pleads the Form which contains the scores of the candidates cannot be said to have stated the scores of the candidates. This, in learned counsel’s view, is because “It is settled law that when a statute requires a thing to be done in a particular form and manner it must be done the way prescribed by that law.”

In the case in hand, since-
“the law says state the scores and not plead the records of the scores there is a world of difference between pleadings and stating.”

Counsel then concluded that in the circumstances the appellant could not be said to have complied with the requirements of paragraph 4(1)(c) of the Schedule.

As noted at the beginning of this judgment the Tribunal accepted the arguments on behalf of the respondents. At pp.67-70 it dealt with the matter thus:
“The votes scored by the contestants is foundational to his petition and must be pleaded and proved by the Petitioner. The contentious paragraph 4(1)(c) of the electoral Act 2002 is set out below and reads as follows:
4(1) An election petition under this Act shall:-
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the elections.”

This provision has been construed severally by the court of appeal which has held that the provision must be mandatory compiled with. None compliance does not constitute a mere irregularity. We refer to Offomah v. Ajegbo & Ors (2000) 1 NWLR (pt.641) 499, Eriobuna v. Obiora (1999) 8 NWLR (pt.616) 623 and Nubu Sami Ibrahim v. I.N.E.C. & 2 Ors (1999) 8 NWLR (pt.614) 335. In all these case the court of appeal construed paragraph 5(1)(c) of Schedule 5 of Decree no. 5 of 1999 which provisions are in pari material with paragraph 4(1)(c) of schedule of the electoral Act 2002. Failure to comply with the provisions avoids the petition. The Petitioner insist that he complied with the mandatory provision requiring him to set out in his petition the votes scored by the candidates in the election.

The scores required to be so set out are the official scores of the Electoral body, in the instant case the 22nd respondent/Applicant. In paragraph 12 of his petition, the petition set down the scored of each contestant as calculated by him. The petitioner argues that he met the provision requiring him to set out the scores of the candidate in paragraph 11 of his petition. The paragraph is of great impact and its reproduced hereunder:
“11. Your petitioner states that despite the facts 2nd to 21st respondents did not receive the ward results from the Presiding officer and the S.P.Cs., they proceeded to collate, and announce a result of the election and declared the 1st respondent as duly elected. The petitioner shall rely on form EC.80(1) no.0000314 (summary of results from wards and collation at Local Government Area Level) and Form EC.8E(1) No.0000180 (Declaration of Result of Election) signed by the 20th and 21st respondents.’