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.’
The petitioner argues that by the rules of pleadings that is enough and relies on Brawal Shipping (Nig) Ltd. v. F.I. Okwadeke Co. Ltd (2002) 2 SCNLR 1379 at 1397 for his contention that all what he needs to do is plead a document, not its content. We think that counsel has seriously misconstrued Brawal’s case. The relevant portion of that judgment at page 1397 is explicit and reads as follows:
“I do not have any doubt that when a document is pleaded it forms part of the pleading. Certainly a document is pleaded to support facts relied on by the pleader. The existence of document is hereby pleaded as a fact. The contents therefore are facts are pleaded as such. The document will then at the appropriate time in the proceedings be tendered as the evidence in proof those facts.’ (emphasis ours)
It is clear from the above that in a court of pleading, for you to rely on the content of a pleaded document, the content must be pleaded as fact. The content of the declaration of result form EC8E(1) pleaded in paragraph 11 of the petition was not pleaded as fact and cannot be relied on to meet the requirements of paragraph 4(1)(c) of the 1st Schedule of the electoral Act 2002 requiring the petitioner to set out in the petition the votes scored by each candidate in the election. To nail home this point, in Offomah v. Ajegbo supra the petitioner did not state the name of the winner of the election in his petition but rather as in this case pleaded the declaration of result form.
The petitioner in that case as in this argued that the name of the winner of the election is to be found in the pleaded form. The court of appeal has this to say at page 504:
“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 form his petition. I am not prepared to embark on such a voyage. The law does not allow it.’
The above conclusions bind us. The petitioner is mandatorily required to set out in clear terms is his petition the scores of each candidate to the election as determined by the 22nd respondent. This the petitioner in the instant case did not do. The word ‘shall” used in paragraph 4(1)(c) of the 1st schedule of the electoral Act has been constructed as mandatory as earlier stated. It is peremptory. The petitioner is not at liberty not to comply with the provision. We hold that in not setting out in his petition the scores of the candidates to the election, he is in breach of the provisions of paragraph 4(1)(c) of the 1st schedule of the Electoral Act. Having so found, what order avail the application? In Offamah v. Afegbo & Ors supra, Nubu Sani Ibrahim INEC & Ors supra and Oriobuna & Ors v. Obiora supra, the Court of Appeal was of the opinion that non-compliance avoids the petition. Our attention has however been called to the court of appeal, Port Harcourt Division decision in Owuru v. INEC & 2 Ors (1999) 10 NWLR (pt.622) where the Court of Appeal held that where the votes scored by the election are not in issue, failure to state the score will not render the petition incompetent. In the instant case however, the scores of the parties are in issue and Owuru v. INEC cannot avail the petitioner. As has been severally declared by the Court of Appeal, non-compliance with paragraph 4(1)(c) of the 1st Schedule of the Electoral Act is not a mere irregularity and cannot be waived. Pursuant to the provision of paragraph 4(6) of the 1st Schedule to the Electoral Act 2002, we hereby find this petition incompetent and defective and it is hereby struck out.” (Italics mine).
With all due respect to both counsel and to the Tribunal, I cannot accept their views. In the first place, I observe that the Tribunal in the first part of the passage just quoted appeared to have shifted focus from the real issue. It concentrated on the question whether or not non-compliance was not fatal. From the argument put forward on behalf of the petitioner before the Tribunal, it is clear that his case was not that non-compliance was not fatal. He acknowledge that non- compliance was fatal. His case, however, was that he was not guilty of non-compliance, having substantially met the requirements. Had he admitted that he had not complied and tried to argue that compliance was not mandatory, then the Tribunal would have been on course reasoning the way it did. He made no such admission, as was made in some of the cases cited by the Tribunal. His case was that his petition contained sufficient pleading to entitle him to the Tribunal’s discretion.
The issue that has arisen in this case has not arisen in exactly the same form as in the three cases cited and relied on by the Tribunal. The Court in those cases, except one, was not called upon to consider whether what the petitioner in those cases did amounted to compliance sufficient for the requirements of provision in pari materia with paragraph 4(1)(c). It was a straight case of non-compliance in each case. In Ibrahim v. INEC the appellant admitted that he did not state the names of the candidates or their scores in his petition. He insisted that he did not have to do so because form TF 002, which another provision of the schedule permitted him to use, and which he used, did not contain such requirement.
In other words that other provision superseded the earlier one that required the stating of names and scores. This was the argument the Tribunal and this court reject. They held that the other provision did not in any way minimize the effect of the earlier provision regarding the stating of the names of candidates and their scores. Salami, J.C.A., who read lead judgment, observed and held that-
“Clearly, from the petition, no result or name of the person declared elected was given and no reason can be discerned for the non-inclusion of the scores of the candidates in it. The failure to state the candidates and their scores and the name of the person returned as elected is an inexcusable and incurable breach of the provisions of paragraph 5(1)(c) of Schedule which is not cured by paragraph 5(7) thereof. The petition was therefore, liable to be struck out by virtue of paragraph 50(1), (2) and (5) of Schedule 5 of Decree No.5 of 1999.”
In Eriobuna v. Obiorah the petitioner did not make any attempt at stating the names or scores of the candidates who contested at the election organized by INEC. Instead he stated the names and scores of two other persons against whom he had contested at the primaries for their party’s ticket to contest the INEC. – organised election. In the view of Niki Tobi, JCA., as he then was, who read the lead judgment, no question arose as to partial compliance. He expressed the view at p.639 that-
“..the Decree anticipates or envisages an election duly conducted by the independent National Electoral Commission (INEC) within the provisions of part II, sections 42 to 91 of Decree No.5 of 1999. If I am correct (and I think I am) then the deposition in paragraph 12 of the petition does not satisfy the provision of paragraph 5(1)(c) of schedule 5 to the decree. This is because paragraph 12 deposed to scores obtained by the 1st respondent, the 1st appellant and Mrs Uju Ozoka at the primary election. In my number view, a primary election is not an election with the meaning of paragraph 5(1)(c) of Decree no.5 of 1999 and in fact the generality of the provisions of Part II of the Decree. The law is elementary that where a petition does not comply with the mandatory requirements of the decree, a court or Tribunal of competent jurisdiction is entitled to strike out the petition.”
It was only on Offomah v. Ajegbo that the question whether or not what was pleaded in the petition was sufficient to meet the requirements of paragraph 4(1)(c). In that case Ubaezonu, JCA., did exactly what the petitioner/appellant before us is saying should be done, namely that the question whether or not his petition pleaded sufficient facts to meet the requirements of the paragraph be considered in the light of the facts of the case. The learned justice of the court of Appeal considered paragraph 3(c) and 3(d) of the petition and found as a fact that the pleading was not sufficient for the purposes of the paragraph of the Schedule.
On established principle, unless, in point of fact, the pleading in Offomah’s case is the same as in the case before us, the decision in that case cannot bind us. For this reason it becomes necessary to examine the circumstances of the petition in both case. Ubaezonu, JCA., reproduced paragraphs 3(c) and 3(d) of the petition in that case thus on pp.503 and 504 as follows:
“(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 of lawful votes cast in the said election.
(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, more so, in the face of the averments in paragraph 3(a) hereof. The 1st respondent was not therefore duly elected by majority of lawful votes cast at the said election. Your petitioner pleads the declaration of results of election (form EC8E) 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 EC8E.”
It is clear that the petitioner in that case did not state, either expressly or by reference to any other document, the scores of each candidate as announced by the INEC Rather, in paragraph 3(c) he stated what in his computation he and the 1st respondent scored. In paragraph 3(d) he again stated only the score credited to the 1st respondent by INEC. Nothing about the votes credited to each of the other candidates that participated in the election was said. The facts which he pleaded and which he said he would prove at the trial by tendering Form EC8E(1) was that he scored higher votes than the 1st respondent.
He never pleaded, either expressly or by necessary implication, the scores recorded for each candidate by the JCA., that-
“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 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 lost sight of what he was required to do to present a valid petition. That was unfortunate.”
Now, what is the pleading in the petition before us regarding the stating the scores of the candidates? In this regard it is necessary to examine paragraphs 3, 11 and 12 of the petition, which ought to be read together and which read:
“3. And your petitioner states that the said election was held on the 12th day of April, 2003, when,
(i) HON. OKOTO, FOSTER BRUCE of the People’s Democratic Party (PDP)
(ii) Mr. Ebikeme Frank Ere of the All Progressives Grand Alliance (APGA)
(iii) Mr. Target Segibo of the All Nigeria Peoples party (ANPP)
(iv) Mr. Anderson Emmanuel of the National Democratic party (NDP) and
(v) Mr. Cyril Benjamin of the United Nigeria People’s Party (UNPP) were candidates.
11. Your petitioner states that despite the fact 2nd to 21st respondents did not receive the Ward results from the Presiding Officers and the SPC’s, 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.0003,4 (summary of Results from Wards and collation at Local Government Area Level) and Form EC.8E(1) No. 00000180 (Declaration of Result of Election) signed by the 20th and 21st respondents.
12. Your petitioner states that the results of the election as collated and declared by the 20th and 21st respondents is totally fraudulent and baseless and was never collated from the authentic Ward results of the election which summarised as follows:
People’s Democratic Party (PDP) 110,536 votes
Alliance for Democratic (AD) 152 votes
All Nigeria Peoples party (ANPP) 2,254 votes
All Progressives Grand Alliance (APGA) 23 votes
National Democratic party (NDP) 72 votes
United Nigeria People’s Party (UNPP) 34 votes.”
It can be seen that the petitioner complied strictly with paragraph 4(1)(c) of the Schedule as to the stating of the holding of the election, the names of the candidates and the person returned as winner. The only area he did not strictly do as stipulated is as to the stating of the scores of the candidates. There is no question that the petition did not on its face state the scores of each candidate as recorded in Form EC.8E(1). It however clearly pleaded that those scores are contained in form EC.80(1), which would be tendered at the trial. It cannot be disputed that the pleading here did not in strict compliance with paragraph 4(1)(c) of the First Schedule to the Act state the scores. The said paragraph requires the petition to “state the…. scores of the candidates …” Strictly speaking, to state a score in a document is to write down on the face of the document what that scores is.
We must, however, not lose sight of the fact that our first concern is to do substantial justice. Had the petition now on appeal before us not made any reference at all to the scores of the candidates as recorded by INEC officials and where they are to be found, the fate that befell Offomah v. Ajegbo and other similar cases would certainly have befallen it. Here, the fault of the petitioner was that he failed to do what paragraph 4(1)(c) of the Schedule required him to do in the exact form required. He should have stated on the face of the petition what the scores were, but instead he pleaded that they were contained in certain documents made by INEC., and which he said would be available at the trial.
As has been seen, the Tribunal, relying on Brawal Shipping case, held that pleadings a fact by reference to a document is not permitted in law. It accused the petitioner’s counsel of misconstruing the case. With due respect, I think it was the Tribunal that misconstrued it. The portion of the judgment highlighted by it by capital letters goes quite contrary to what it says the passage has said. The portion, for ease of reference, says “a document is pleaded in order that it may be used as facts relied on by the pleader. The contents thereof are facts and are pleaded as such. The document will then at the appropriate time in the proceedings be tendered as the evidence in proof of those facts.” Following this, it was, in my view, legitimate for the petitioner to plead form EC.8E(1) and indicate that he would rely on it in proof of the facts contained therein, as to the scores of the candidates.
In coming to my conclusion to reject the views of the respondent counsel and of the tribunal I asked myself what the purpose of the requirement in paragraph 4(1)(c) is and the possible effect of non-compliance therewith.
In my view, the purpose of the requirement is not just to decorate the fact of the petition with the figures. It is to satisfy the requirements of the rules of pleadings, one of which is to avoid taking the opponent by surprise or in any way embarrassing him. If the petition is drawn up in a way not in strict conformity with the wording of the paragraph but in a way to satisfy the rules of pleading it should, in the interest of justice, be allowed to stand and be heard on the merit. In Egolum v. Obasanjo & Ors (1999) 7 NWLR (pt.611) 335, the petition was not strictly in the form laid down in paragraph 5(4) of the Schedule, in pari material with the paragraph of the 2002 Act now in question.
Notwithstanding this the Supreme Court upheld the refusal by the court of appeal to strike it out for non-compliance. Ogundare, J.S.C., who read the lead judgment pointed out at p.387 that-
“The course of justice has moved a long way from the decisions in the cases cited to us by learned leading counsel for the cross-appellant. The emphasis now is more on doing substantial justice rather than on technicalities which the cross-appeal seems to be all about – see: Matthew Obakpolor v. The State (1999) 1 NWLR 113 at 129 where this Court, per Akpata, J.S.C., observed:
“That there was procedural irregularity is not in doubt. It is however an irregularity which has not led to a miscarriage of justice. The irregularity is not a magistrate’s failure to comply at all with statutory provisions but of a failure to comply with it strictly. It is the paramount duty of courts to do justice and not cling to technically inherent in rules of Court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified.”
Achike, JSC., made the same point when he said at p.413 that-
“The heydays of technicalty are now over because the weight of judicial authorities has shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties to the case. In the light of what I have said, the two authorities of Ngelizona v. Hindi (supra) and Dada v. Ayo Fasami (supra) have not been shown to command current judicial respect or acceptance even though ordinarily they are only of persuasive effect.”
Of course, non-compliance can in some cases render a petition incurably defective. As Egolum v. Obasanjo has shown, such effect could result where the non-compliance has adversely affected the opposite side or has in some other way occasioned a miscarriage of justice. Be it noted that the respondents are not complaining that they have been misled or in any way been prejudiced by the manner in which the petition had been framed. The objection is on the mere technical fact that the petition did not look exactly like what paragraph 4(1)(c) says it should look like. Such an effect could also result where the non-compliance fundamentally affects the competence of the petitioner to bring the petition or the jurisdiction of the Court or Tribunal. Such was the case in the main appeal in Egolum v. Obasanjo. Since the locus standi of the petitioner was in question he was obliged to follow the requirements of the Decree in establishing it on the face of his petition. Since want of locus standi was a fundamental defect in that it affected the jurisdiction of the election petition Court, the Supreme Court agreed with that court that the petition was incurably defective.
On the whole, I find that the Tribunal was wrong in striking out this petition. This was a proper case for it to have exercised its discretion and overlooked what was obviously a minor non-compliance. In the result the appeal succeed and is allowed. The decision of the tribunal striking out the petition is set aside. The petition is hereby remitted for hearing on the merit by the tribunal as presently constituted or as may be re-constituted by the Presiding of this court.
There shall be no order as to costs.
Other Citations: (2003)LCN/1473(CA)