Hope Democratic Party (Hdp) V. Independent National Commission (Inec) (2009)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNONGHEN, J.S.C. 

This is an appeal against the ruling of the lower court sitting as the Presidential Election Tribunal, Holden at Abuja in Election Petition NO. A/A/EP/5/07 delivered on the 20th day of August, 2007 in which the court struck out the petition of the appellant for being incompetent.

On the 18th day of May, 2007, the petitioner/appellant presented an election petition before the lower court in which it prayed the court, in paragraph 23 (a) and (b) as follows: –

“(a) An order of the tribunal, that the election is invalid for reason of non-compliance with substantial sections of the Electoral Act, 2006.

(b) An order of the tribunal that the election is invalid for reasons of corrupts (sic) practices”.

It is not disputed that the appellant is one of the duly registered political parties that took part or participated in the April, 2007 Presidential Election in Nigeria and was dissatisfied with the outcome of the said election hence the petition. The petition is against the following respondents:

(1) Independent Electoral Commission (INEC)

(2) Prof. Maurice Iwu (Chairman INEC)

(3) People Democratic Party (PDP)

(4) Alh. Umaru Yar’adua (PDP)

(5) The Nigerian Police Force

On the 31st day of July, 2007, learned senior counsel for the 4th respondents, Chief Wole Olanipekun, SAN , filed a motion in the lower court praying that the petition be struck out on the following grounds:-

“1. The 1st, 3rd and 5th respondents are not juristic persons or persons known to law.

It does not comply with section 145(1), paragraph 4(1) of the 1st schedule to the Electoral Act, 2006.

The petition is not properly constituted as persons or institutions who are proper, necessary or desirable parties and whose presence are required for a just determination of the petition have not been made parties.

The petition is hypothetical, moot or academic.

The reliefs being claimed by the petition are at large and same vest no right or benefit in the petitioner”.

On the 3rd day of August, 2007 the learned senior counsel for the 1st and 2nd respondents, Kanu Agabi Esq, SAN also filed a motion and a preliminary objection praying for the striking out or dismissal of the petition on grounds very similar to those earlier reproduced in this judgment.

The objections/motions were consolidated and heard together and in a reserved ruling delivered on the 20th day of August, 2007 the lower court, sustained same as a result of which the petition of the appellant was held to be incompetent and consequently struck out. The instant appeal is against the said ruling.

In the appellant’s brief filed on 12/9/07, learned counsel for the appellant, Chief A. Owuru identified the following issues for determination: –

“1. Whether the tribunal’s interpretation of section 145 of the Electoral Act, 2006 and paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006 was right and or justified based on which the petition was struck out for non-compliance with the said provisions of the Electoral Act.

Whether the jurisdiction of the tribunal was not invoked going by the content and issues of law canvassed in the petition as relevant to the petitioner’s case satisfying or complying with the provisions of section 145 of the petition and paragraph 4(1) (d) of first schedule to the Electoral Act, 2006 or whether compliance with all the grounds and condition of the said sections and paragraph to the Act is in mandatory terms.

Whether the tribunal was right to strike out the election petition for non-joinder of necessary parties following its decision that the 1st and 2nd respondents are non-juristic persons due to observed omission of the word “National” in one of the five sets of document/processes filed before the tribunal OR whether the tribunal was right in entertaining the objections form (sic) or technical grounds raised by the respondents after having waiver (sic) their rights and taken fresh steps without compliance with the Rules”.

On behalf of the 1st and 2nd respondents, the following issues have been formulated by Kanu Agabi Esq, SAN in the brief of argument filed on the 4th day of January, 2008:

“1. Whether the appellant failed to comply with the mandatory provisions of section 145 of the Electoral Act, 2006 and paragraph 4 (l)(d) of the first schedule to the Electoral Act and if so whether the lower court was right to strike out the petition on that ground (Grounds 1,2 and 3).

2. Whether the lower court was right in holding that the 1st and 2nd respondents were not juristic persons within the contemplation of the law and if so whether that court was right in striking out the petition on the ground of non- joinder of necessary parties (Grounds 4 and 5).
3. Whether the respondents had waived their right to move the court to strike out the petition as incompetent by taking fresh steps in the proceedings after becoming aware of the issues giving rise to the application to strike out the petition”,

Similar issues were formulated and argued by learned senior counsel for the 3rd respondent, Chief Joe-Kyari Gadzama. SAN in the brief deemed filed on 12/2/08; Chief Wole Olanipekun, SAN in the brief of argument filed on behalf of the 4th respondent on 8/10/07 and C. U Ekomaru, Esq for the 5th respondent in his brief deemed filed on the 15th day of January, 2009.

In arguing issue 1, learned counsel for the appellant, Chief Owuru referred to the provisions of section 145 (1) (b) of the Electoral Act, 2006 and submitted that the said section allows the petitioner a choice of grounds appropriate to its case and that the relevant ground on which the instant petition was based is clearly stated in the petition – which learned counsel submitted is that the election was “invalid by reason of corrupt practices and non-compliance with the Electoral Act, 2006”; that the petition is not questioning the number of votes scored in the election by the candidates thereto: that the petition conforms with the provisions of sections 140(1) and 145(1) (b) of the Electoral Act, 2006 as is evidenced in the pleadings in paragraphs 1,2,3,4,5,6,7,8,9,20,21,22 and 23 of the petition which show that the ballot papers used for the election was not bound and numbered serially as required by section 45(2) of the Electoral Act, 2006 and advertised in the Punch Newspaper of 13th April, 2007; that the provisions of paragraph 4(1)(d) of the first schedule to the Electoral Act, 2006 refer to the same grounds as required by section 145(1) (a) to (d) of the Electoral Act, 2006 and ought not to be treated or interpreted in isolation from the said section 145; that the objections of the respondents to the petition have to do with the form in which the petition is presented which ought not to have been countenanced having regards to the provisions of paragraph 49(1) and (4) of the first schedule to the Electoral Act, 2006; that the petitioner has a cause of action contrary to the holding of the lower court and urged the court resolve the issue in favour of the appellant.

Learned senior counsel for the 1st and 2nd respondents, Kanu Agabi Esq, SAN referred to the provisions of section 145(1) of the Electoral Act, 2006 and submitted that the appellant’s petition has no ground alleging that the 4th respondent is not qualified to contest the election; that the election was invalid by reason of corrupt practices or non-compliance with provisions of the Act; that the 4th respondent was not elected by majority of lawful votes cast at the election neither was there any ground alleging that the appellant’s candidate was unlawfully excluded from the election; that once there are no grounds in support of a petition, the petition is deemed to be invalid and that the lower court was right when it struck same out, relying on the Court of Appeal decision in Ogboru v. Ibori (2004) 7 NWLR (Pt. 87) 192 at 224.

Learned senior counsel also referred to the provisions of paragraph 4(1) of the first schedule to the Electoral Act, 2006 and submitted that the petition failed to comply with that provision and that the lower court was right by virtue of the provisions of paragraph 4(6) of the first schedule to the Electoral Act, 2006 in striking out the petition, relying on Obi Odu v. Duke (N0.2) (2002) 10 NWLR (Pt. 932) 105 at 144-145; that the lower court also found that there was no cause of action disclosed in the petition and urged the court to resolve the issue against the appellant.

On his part, learned senior counsel for the 3rd respondent submitted that the lower court was right in striking out the petition for non-compliance with the provisions of section 145(1) of the Electoral Act, 2006 and paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006 as the same did not disclose any cause of action; that the petition made general and. wild allegations of fraud and forgery and corrupt practices etc and urged the court to resolve the issue against the appellant.

The submission of the learned senior counsel for the 4th respondent Chief Wole Olanipekun, SAN and counsel for the 5th respondent, C. U Ekomaru Esq on the issue 1 is substantially the same with what had already been summarized in this judgment. They too urged the court to resolve the issue against the appellant.

The relevant provisions to the resolution of issue 1 are sections 145(1) of the Electoral Act, 2006 and paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006. These provide as follows:-

“145 (1) An election may be questioned on any of the following grounds-

(a) That the person whose election is questioned was at the time of the election not qualified to contest the election;

(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;

(c) That the respondent was not duly elected by the majority of lawful votes cast at the election or;

(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election”.

Paragraph 4 (1) (d) supra provides thus:

“4(1) An election petition under this Act shall

(a) Specify the parties interested in the election petition.

(b) Specify the right of the petitioner to present the election petition.

(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner”.

It is very clear that a combined reading of section 145(1) and paragraph 4(1) of the first schedule both supra clearly sets out four distinct grounds for presenting an election petition as non-qualification of the candidate(s) returned; invalidity of an election by means of corrupt practices or non-compliance with the provisions of the Electoral Act, 2006; that the respondent was not duly elected by majority of lawful votes cast at the election; and, valid nomination of a candidate who was wrongfully excluded from, the election, it is clear that the grounds for questioning an election, by way of an election petition mentioned in paragraph 4(1) (d) supra are as specified in section 145(1) of the Electoral Act, 2006.

The lower court, in dealing with the issue under consideration stated thus, inter alia:

“I have taken time to read through the petition several times. I cannot see where the grounds for the petition have been stated, not to talk of stating it clearly. And the same cannot be left to conjecture. I need to also state that facts relied upon were often generalized”.

The court also stated inter alia:

“No ground is stated as forming the pivot of the petition as enjoined by the provision of paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006 there appears to be a failure of cause of action in toto I strongly feel that the petitioner should be told that since he failed to comply with the rules set out in paragraph 4 (1) (d) of the first schedule to the Act (sic) and did not state any cognizable ground for bringing his petition as mandated by the provisions of section 145(l)(a) to (d) of the act she failed to initiate her petition by due process of the law. After all, where a statute provides for a particular method of performing a duty regulated by statute, that method and no other must have to be adopted”.

The question that calls for an answer is whether the lower court is right in holding supra. It is not in dispute that a petitioner is required by law to state in his petition the ground or grounds on which the petition is predicated in addition to stating therein the facts relied upon to sustain the said ground or grounds and finally the relief(s) sought. The provisions are mandatory.

Did the appellant state any ground or grounds on which the petition is based? While the appellant argues that it did, the respondents and the lower court are of the view that it did not. Since the facts stated in the petition constitute the pleadings, it is necessary to take a close look at the petition of the appellant in the determination of the issue under consideration.

I must confess that the petition is not well or elegantly drafted particularly as it did not separately state the grounds for presenting the petition under separate heads or sub-heads. This means that for one to determine whether the petition is based on any ground(s) as required by law, one has to read through the paragraphs of the petition to see what the petitioner pleaded.

In paragraph 1, the petitioner/appellant pleaded as follows:-

“Your petitioner is a political party which participated in the election under question and which sponsored and presented a candidate for the proposed April, 21st 2007 Presidential Election, which election did not hold or conducted at all by the 1st and 2nd respondents in accordance with the 1999 Constitution, electoral laws, rules and guideline of the proposed election”.

In paragraph 21 the petitioner/appellant pleads thus:-

“The petitioner avers that the ballot papers used for the April 21st, 2007 Presidential Election where (sic) not bounded in booklet and numbered serially as mandatorily required by law given (sic) room for undue manipulation and perpetuation of fraud on the election day. The petitioner shall at the trial found and rely on the loose ballot papers without serial numbers for the said April Election the 1st and 2nd respondent (sic) are hereby given notice to produce copies of the ballot papers for the April 21st, 2007Presidential Election.”

Finally, in paragraph 23 the petitioner/appellant pleaded thus:-

“The petitioner shall contend that the election being fraught with grave non-compliance with the constitutional and statutory laws regulating the said election with obvious omissions and inbuilt manipulation that the 1st and 2nd respondents (sic) with clear inbuilt mechanism for fraud, no candidate in that election ought to have been returned at (sic) duly elected including the 4th respondent as the purported election was not free, fair and credible and stands vitiated by those factors as a non-election illegal and therefore non (sic) and void in the circumstance.

Grave non-compliance and corrupt practices must affect the election results substantially and wholly.

No candidate can be validly elected or returned in such circumstance.

WHEREFORE THE PETITIONER PRAYS THAT IT BE DETERMINED AS FOLLOWS:-

AN ORDER of the tribunal, that the election is invalid for reason of non-compliance with substantial sections of the Electoral Act, 2006,

AN ORDER of the tribunal that the election is invalid for reasons of corrupt practices”.

I had earlier stated that the petition is not elegantly drafted. However, by looking at the paragraphs of the petition reproduced in this judgment, it is very clear that the petition contains a ground recognized by the relevant section of the Electoral. Act, 2006 particularly section 145(1) (b) thereof which provides that:

“(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act”.

The facts on which the ground of non-compliance with the provisions of the Electoral Act, 2006 is based have also been pleaded – that the ballot papers were neither bound in booklet form nor numbered serially as required by the Electoral Act, 2006

see paragraph 21 of the petition and section 45(2) of the Electoral Act, 2006, which clearly provides that:

“(2) The ballot papers shall be bound in booklets and numbered serially with differentiating colours for each office being contested”.

In the circumstance I am of the view that the lower court was in error when it held that the petition was not based on any ground known to law and that it did not disclose any cause of action. I therefore resolve the issue in favour of the appellant.

On issue 2, I hold the view that the resolution of issue 1 has done away with issue 2 as formulated by learned counsel for the appellant. The issue as formulated is:

“Whether the jurisdiction of the tribunal was not invoked going by the content and issues of law canvassed in the petition as relevant to the petitioner’s case satisfying or complying with the provisions of section 145 of’ the Act and paragraph 4(l)(d) of the first schedule to the Electoral Act, 2006 or whether compliance with all the grounds and condition of the said sections and paragraph to the Act is in mandatory terms”.

The above issue is therefore discountenanced by me.

On issue 3, learned counsel for the appellant admitted that there was a typographic error relating to the omission of the word “National” in the nomenclature of the 1st respondent in the petition, which is one out of five documents filed at the registry of the lower court as required by statute. Learned counsel however submitted that the error does not make the 1st respondent to be a non-juristic person as well as the 2nd respondent as described in the petition; that the addition of the acronym “INEC” to the name of the 1st respondent clearly shows that the appellant intended to sue the Independent National Electoral Commission (INEC); that the court should take judicial notice of the use of the name “INEC” by invoking section 74 of the Evidence Act to hold that it refers to the 1st respondent; that an election petition is properly constituted when the person elected or returned is joined as a party and any other respondent is a deemed respondent depending on the complaint against him and that a non-joinder of same does not affect the competence of the petition, relying on sections 140(1) and 144 (2) of the Electoral Act, 2006; that in the instant case, the 4th respondent was joined in the petition as a statutory respondent whose presence validated the petition once it is clear that the petitioner has locus standi to present the petition and urged the court to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned senior counsel for the 1st and 2nd respondents submitted that the courts have no jurisdiction over non-juristic persons such as the 1st and 2nd respondents mentioned in the petition; that the 2nd respondent is sued in his personal capacity, referring to the provisions of .section 144(2) of the Electoral Act, 2006 learned senior counsel submitted that the appellant has no right to sue the 2nd respondent in his personal capacity and that the lower court was right in striking out his name from the petition; that there is a world of difference between the Independent National Electoral Commission and the Independent Electoral Commission as one is known to law while the other is not and urged the court to resolve the issue against the appellant and dismiss the appeal.

On his part, learned senior counsel for the 3rd respondent Chief Gadzama, SAN referred the court to section 153(1) of the 1999 Constitution on the establishment and name of the Independent National Electoral Commission comparing same with the 1st respondent as described in the petition; that the name of the 3rd respondent was also not correct as it is described or called People Democratic Party, instead of Peoples Democratic Party; that even the name of the 5th respondent was wrongly stated on the processes.

Learned senior counsel also referred to section 144(2) of the Electoral Act, 2006 and submitted that the appellant was wrong in suing the 2nd respondent in his personal capacity and urged the court to resolve the issue against the appellant and dismiss the appeal.

There is no doubt, that the 1st respondent whose real name is Independent National Electoral Commission with the acronym of INEC was described/named in the petition as Independent Electoral Commission (INEC): apart from the petition, the name of the 1st respondent was properly described in all the other documents filed along with the petition to wit, notice of petition; receipt of petition; witness statement on oath; list of witnesses.

From the above, it is very clear that the omission of the word “National” in the name of the 1st respondent between “Independent” and “Electoral” in the petition alone out of the five documents filed challenging the election is an error on the part of the appellant. The question is whether the error is fatal to the petition of the appellant as held by the lower court.

It must be borne in mind that the facts demonstrate in no uncertain terms that the appellant intended to sue the Independent National Electoral Commission (INEC) instead of Independent Electoral Commission (INEC) particularly as the acronym INEC added to Independent Electoral Commission clearly demonstrates. It is in no doubt whatsoever that the said acronym INEC refers to no other body other than Independent National Electoral Commission which the court can under the provisions of section 74 of the Evidence Act, take judicial notice of. It should be noted that though election petitions are said to be sui generis they are concerned with the political rights and obligations of the people – particularly those who consider their rights, injured by the electoral process and need to ventilate their grievances. Suchpeople ought to be encouraged to do so with some latitude knowing that in the process of initiating proceedings to ventilate their grievances mistakes, such as those in the instant case may occur. Since the intention of the Electoral Act and other laws employed in litigation are geared towards ensuring that substantial justice is done to the parties at the expense of technicalities, any conclusion that tends to shut out an aggrieved party from the temple of justice by not hearing him on the merit ought not to be encouraged in the interest of peace and democracy.

I therefore hold that having regards to the acronym INEC which was added to the name of the 1st respondent in the petition, the respondents and the court were not misled as to the person being sued by the appellant particularly as the appellant made the mistake only on the petition while the other documents filed by the appellant as well as those by the 1st respondent clearly described the 1st respondent as Independent National Electoral Commission (INEC). In the circumstance, I hold the view that the lower court was in error when it held that the 1st respondent is a non-juristic person.

With respect to the 2nd respondent, section 144(2) of the Electoral Act, 2006 provides as follows:

“2 The person whose election is complained of is, in this Act, referred to as the respondent, but if the petitioner complains of the conduct of an Electoral Officer., a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in the official status as a necessary party”.It is very clear from the above provisions that only the persons named/recognized by section 144(2) of the Electoral Act, 2006 can be made respondents to any valid election petition and that apart from the statutory respondent who has to be sued in his personal capacity every other respondent has to be joined in appropriate cases, in their “official status” or capacity.

The question is whether Prof. Maurice Iwu (Chairman INEC) is sued in his official status or capacity in the instant petition. Learned counsel for the appellant has argued that the 2nd respondent is sued in his official capacity as chairman of INEC or in the alternative that having regard to the fact that allegations of improper conduct have been made in the petition against the person of the 2nd respondent, he has to be sued in his personal capacity.

I hold the considered view that the 2nd respondent as described in the instant petition is sued in his personal capacity, not in his official capacity. The person sued is clearly Prof. Maurice Iwu while the clause (Chairman INEC) serves only to qualify him. I have gone through the petition and I do not agree with the learned counsel for the appellant that Prof. Maurice Iwu played any personal role in the conduct of the April, 21st 2007 presidential election; even if he did, the law says that he has to be sued in his official status not private or personal capacity. I therefore hold the view that the lower court was right in striking out the name of the 2nd respondent from the petition.

As regards the striking out of the names of the 3rd and 5th respondents on the ground that the letter S was not added to People to make it Peoples Democratic Party which the letter N was added to Nigeria in Nigerian Police Force is too trivial to be considered any further in this judgment.

By the way, is it not rather strange that even the name of the statutory respondent, the 4th respondent was not considered by the lower court as being sufficient to sustain the petition granted that all the other respondents were non-juristic persons as held by the lower court. Is the 4th respondent also not a juristic person capable of being sued in the instant election petition? The answer is very obvious.

In conclusion, I find merit in this appeal which is accordingly allowed by me. The ruling of the lower court delivered on the 20th day of August, 2007 is hereby set aside except the order striking out the name of the 2nd respondent from the petition which is hereby affirmed.

It is further ordered that the petition be and is hereby remitted to the lower court to be heard on merit before another panel to be constituted by the President of the Court of Appeal. I make no order as to costs.

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SC. 251/2007