Kate Mudiaga-erhueh V. Independent National Electoral Commission (Inec) & Ors (1999)
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SAKA ADEYEMI IBIYEYE, J.C.A.
This is an appeal against the ruling of the Delta State National Assembly Election Tribunal sitting in Asaba which was delivered on 3rd of May, 1999. The ruling is sequel to a preliminary objection raised by the 4th respondent to the incompetence of the petition filed before the Delta state National Assembly Election Tribunal (hereinafter referred to as the Tribunal). The Tribunal upheld the prayer of the 4th respondent by striking out the petition. The petitioner was aggrieved by that ruling and she appealed to this Court on three grounds which I shall consider presently.
The motion on notice which promoted the ruling appealed against by the appellant reads:
“AN ORDER striking out/dismissing this petition on the ground that it is an abuse of the process of Court and the Honourable Tribunal lacks jurisdiction to entertain the petition.
AN FURTHER TAKE NOTICE that the grounds upon which this application is based are as set hereunder and in the affidavit in support of the motion.
GROUND 5
(i) The petitioner and three others had prior to this petition filed a similar suit claiming substantially the service (same) reliefs against the respondents and the Peoples Democratic Party.
(ii) The petitioner and three others prior to this petition took out a similar suit claiming substantially the same reliefs against the respondents and the Peoples’ Democratic Party (P.D.P.) at Asaba High Court in Suit No. A/28/99 which was subsequently transferred to the Federal High Court Benin City where it is at the moment still pending.
(iii) The issues raised and or the relief sought by the petitioner in this petitions are not cognizable under Decree No.5, 1999 as issues to be entertained by the Tribunal.”
Chief Olisa Chukwura, senior Advocate of Nigeria and A.A. Onojovwo Esq. who respectively appeared for the petitioner/respondent and 4th respondent/applicant at the Tribunal proferred arguments for and against the prayers in the above reproduced motion. The Tribunal in a considered ruling held that the common complaint in grounds (i) and (ii) (above) on abuse of Court process did not amount to any abuse of process of Court.
As regards the third ground, the Tribunal held, inter alia, as follows:
“The Decree makes it imperative that the competence of a petition depends on meticulous compliance with the grounds and other requirements stipulated by the Decree.
We are unanimously of the view that the petitioner had failed to do so. In the circumstances, we have no other option but to strike out the petition. The petition is hereby struck out accordingly…………..”
The appellant was obviously dissatisfied with this ruling and she filed notice and Grounds of Appeal dated 3rd day of May 1999 in this court. The three grounds of appeal without their particulars are as fallows:
“1. The Tribunal was wrong in law in deciding that the petition which prays that it may be determined that she ought to have been returned unopposed and should be so declared returned unopposed” is not in accord with the previsions of Section 79(1) of the said Decree.
- The Election Tribunal erred in law in failing to consider the effect of schedule E FORM TF 002 which prescribes a format for presenting a petition in respect of the Elections.
- The Election Tribunal did not consider and give effect to the principle of law which postulates that in filing the motion to strike out/dismiss the petition on grounds of law the 4th respondent as also the others, admits all the facts averred in the petition.”
Both the appellant and the 4th respondent filed and exchanged briefs of argument.
The learned senior Advocate for the appellant distilled the following three issues from the grounds of appeal for the determination of this Court:
“(i) Whether in all the circumstances of the case the Election Tribunal considered the applicable relevant sections of Decree No.5 of 1999 and judicial authorities before striking out the petition.
(2) Whether in this case, where the Respondent (sic) refused and otherwise failed to file their replies to the allegations contained in the petition and did not join issues with the petitioner on her petition, the Election Tribunal was not bound or otherwise constrained to dismiss the motion –
AND grant the relief sought.
(3) The petitioner shall seek leave of the Court of Appeal to refer to Laws (which were not pleaded in the petition) but which are relevant for a full and proper determination of this petition – that is to say:
(1) Section 44(1)(9) of Decree No.5 of 1999 which stipulates that: “A person shall not be qualified as a candidate to contest the National Assembly election unless – (g) he has not ,been dismissed from the public service of the Federation or of a state or Local Government or Area Council”;
(ii) 3rd schedule (page 14014, item 104) of Review Tribunals (Implementation of Decisions) Act, Cap. 393 Laws of the Federation of Nigeria, 1990. The date of commencement of the Act is stated to be 26th September 1986;
(iii) Schedule 9, ………..5 paragraph 15(3) of Decree No.5 of 1999;
(iv) Section 16 of the Federal court of Act.
the 4th respondent on the other hand formulated the following three issues in his brief of argument:
“(i) whether or not, having regard to the totality of the issues raised and relief sought in the petition, the Tribunal had jurisdiction to entertain and determine the petition.
(ii) Whether or not the petition complied with the mandatory provisions of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5, 1999,
(iii) Whether or not in all the circumstances the 4th Respondent’s preliminary objection anchored on an abuse of process, lack of jurisdiction and non-compliance with the 5th schedule of Decree No.5, 1999, amounted to and (sic) admission of the facts alleged in the petition.”
It is appropriate at this stage to consider the competence or otherwise of the issues formulated by both the appellant and the 4th respondent in their respective briefs of argument. Thus each of both parties distilled three issues for the determination of this Court. It is apparent that issue No.2 in the appellant’s brief deals with the failure of the respondents to file replies and join issues with the petitioner. The three grounds of appeal hardly refer to such points. Since this issue does not relate to any of the grounds of appeal, it is incompetent. Equally defective in the appellant’s grounds of appeal is the 3rd ground of appeal. What is described as a ground of appeal is a misnomer. It is more of a prayer for leave to present list of authorities. This type of prayer does not require any leave as order 7 rule 4 of the Court of Appeal Rules 1990 expressly provides that such a list shall be made available to this Court whenever parties want to make use of authorities in canvassing their arguments.
Furthermore none of these six issues is the briefs of argument in this appeal relates to Ground 2 of the Grounds of Appeal. It is settled law that issues framed for determination in an appeal must be related to or predicated upon a ground of appeal in the matter. Both the appellant and the respondent are entitled to formulate their respective issues which must flow from the ground or grounds of appeal in the matter. If an issue has no bearing with the ground of appeal, it becomes irrelevant. In effect both the issues and arguments canvassed in support will be struck out for want of competence. See TUKUR v. GOVERNMENT OF TARABA STATE (1997) 6 N.W.L.R. (PART 570) 549 at 570. It is equally not permissible to canvass and tender arguments on issues having little bearing with any of the grounds of appeal. See: MADAGWA v. THE STATE (1988) 5 N.W.L.R. (PART 92) 60 and AFRICAN PETROLEUM LTD. V. OWODUNNI (1991) 8 NWLR. (PART 210) 391 at 423.
In the instant case, since Issues 2 and 3 in the appellant’s brief are not predicated on any of the three grounds of appeal, they are incompetent and all arguments canvassed on them are accordingly discountenanced.
All the surviving issues in the parties’ briefs do not relate to Ground 2 of the Grounds of appeal. It is settled law that arguments in briefs are based on issues and not on grounds of appeal. See FREGENE v. U.A.C. NIG. LTD. (1997) 3 N.W.L.R. (PART 493) 359 at 365. Since no issue is predicated on Ground 2 of the Grounds of Appeal, it is deemed abandoned.
At the hearing of this appeal, both the learned Senior Advocate and the learned counsel for the appellant and the 4th respondent respectively adopted and relied on their briefs of argument. They also orally amplified some issues therein.
On the only surviving issue in the appellant’s brief, the learned senior Advocate for the appellant argued that the Tribunal in arriving at its decision on the motion an notice, it made use of only section 79(1)(a) to (d) and paragraph 5(1)(c) of Schedule 4 to the National Assembly (Basic Constitutional and Transitional provisions) Decree No.5 of 1999 (hereinafter referred to as Decree No.5) and concluded that the only prayer, that is to say paragraph 4 of the petition, as not covered by section 79(1). He further argued that if the Tribunal had adverted its mind to Sections 76(1)(a) and 78(1) as well as paragraph 11(2) of Schedule 4 to Decree No.5, it would have become clear to it that the right which the petitioner seeks to enforce is covered by the said Decree. He submitted that a candidate who is returned unopposed or who ought to have been so returned but was not is within the intendment of the Decree. He argued that the phrase “to be validly elected as a member of the National Assembly” subsumes “being returned unopposed”. Learned senior Advocate referred to paragraph 11(2) of Schedule 4 (supra) which deals with contested and uncontested election and in particular that if only one candidate remains duly nominated at the close of delivery of nomination forms that candidate shall be deemed returned unopposed. He submitted that what happened to the appellant squarely falls into the contemplation of paragraph 11(2). The remaining arguments on Issue No.1 appear to have been distilled from Ground 2 of the Grounds of Appeal. Since Ground 2 upon which these arguments on FORM TF 002 hinge have been deemed abandoned, there is no longer basis for any arguments on that Form. It is settled law that issues formulated on appeal draw inspiration albeit from validity grounds of appeal. If there are no valid ground at grounds of appeal from which issues are distilled such issues become incompetent. It is out of place to canvass and/or tender arguments on issue having no bearing with any of the grounds of appeal. See MADAGWA v. THE STATE (SUPRA) at page 60; AFRICAN PETROLEUM LTD. v. OWODUNNI (SUPRA) at page 423 and OKOYE v. NIGERIAN CONSTRUCTION & FURNISHING CO. LTD (1991) 6 N.W.L.R. (PART 199) 501 at 533. In the instant case, since FORM TF 002 which should have been made an issue on its own under abandoned Ground 2 was not made one but was instead, with due respect, clandestinely brought into Issue No. 1 (under discourse) which drew its source from Ground 1 of the Grounds of Appeal, any arguments proferred on it (FORM TF 002) are incompetent and should be discountenanced. The arguments thereon are accordingly discountenanced.
In reply to Issue No. 1 which is common to both parties A.A. Onojovwo Esq., the learned counsel for the 4th respondent specifically referred to sections 76(1), 77, 78(1) and 79(1) of Decree No.5 and number of submissions. Thus, that in the interpretation of statutes, words should be given their ordinary and simple grammatical meaning intended to be conveyed by the legislature and the court should strictly adhere to such interpretation even where such strict construction appears to be punitive to the litigant. See UNION BANK OF NIGERIA PLC v. FAJEBE FOODS AND POULTRY FARM5 LTD. & ANOR (1998) 6 N.W.L.R. (PART 554) 380 at 401 to 402 and S. O. BALOGUN v. K.M. ODUMOSU & ORS. (1999) 2 N.W.L.R. (PART 592) 590 at 595. It is further submitted that by a strict construction of the provisions of section 76(1)(a) read along with Sections 75. 76, 77, 78(1) and (2) and 79(1) of Decree No.5, the jurisdiction of the Tribunal is restricted and limited to issues relating to the conduct of an election, result from an election, or return or declaration based thereon. A return by default from the nomination process before the date of an election does not come within the vision and contemplation of those sections (supra). He equally submitted that if the law-makers had intended to extend the jurisdiction of the Tribunal to issues arising from return or supposed return at the close of nomination before an election as provided under paragraph 11(2) of schedule 4 (supra), the word “election” should have been so inserted.
Learned counsel referred to the definitive meaning of the words “elect” and “election” as contained in THE NEW LEXICAN WEBSTER DICTIONARY OF ENGLISH LANGUAGE. He therefore argues that a candidate who is returned unopposed at the close of nomination cannot claim to be elected as he/she was not voted for by the electorate. He or she can at best claim to have been selected. He finally submitted on this issue that since the petitioner1s complaint and relief do not relate to an election or any return therefrom, the Tribunal had no jurisdiction to handle it. He accordingly supported that it was on very firm grounds that the Tribunal held that the petition did not fall within any of the known grounds for presenting an election petition and he relied on Section 82(1) and (2) and paragraph 5(3)(a) of Schedule 5 to Decree No.5.
The main crux of Issue No 1 is whether a petition within the spirit and intendment of Decree No. 5 was before the Tribunal. In order to appreciate what the appellant actually presented to the Tribunal, it is only apt to consider the wording of what was presented. In view of the rather verbose application made to the Tribunal, I reproduce only its paragraphs 1, 2, a few sub-paragraphs in paragraphs 3 and 4. They read as follows:
“The petition of Kate Mudiaga-Erhueh, house-wife and trader, of 2 Sadjere Estate off Isoko Road, Ughelli, Delta State whose name is subscribed hereunder showeth:-
- Your petitioner, Kate Mudiaga-Erhueh is a person who had the right to vote and claims to have had a right to be returned at the above election.
- And your petitioner states that she was duly nominated candidate for the Election to the senate in Delta central District for the election held on Saturday 20th February 1999, as candidate for the All Peoples I Party (APP).
- AND YOUR PETITIONER states:-
(i) that she was duly screened and cleared by the Commission for the said election and that none of the two other political parties presented any candidate for the same election to the Independent National Electoral Commission (hereinafter called the Commission), the other two political parties being (a) the Alliance for Democracy (AD) and (b) The Peoples’ Democratic party PDP).
(ii) that she is a registered voter in Ughelli North Local Government (voter’s Card No. 13913874) and a registered member of the All Peoples Party ‘APP), issued with card NO. 39359.
- WHERE FOR your petitioner prays that it may be determined that he ought to have been returned unopposed and should now be so declared returned unopposed.”
Having reproduced the foregoing paragraph, it is pertinent to further ask if the wording of those paragraphs satisfy the enabling section or paragraph of Decree No.5, this question calls for the consideration of sub-paragraphs (1), (2) and (3) of paragraph 5 of schedule 5 to Decree No. The paragraph reads:-
“5(1) An election under this Decree shall:
“(a) specify the person 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 election petition is based and the relief sought by the petitioner.
(2) The election petition shall be divided into paragraphs each of which shall be confined to a distinct issue or major facts of the election petition, and every paragraph shall be numbered consecutively.
(3) The election petition shall further –
(a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned, having polled the majority of lawful votes cast at the election or that the election may be declared nullified, as the case may be; and
(b) be signed by the petitioner or all the petitioners or by Solicitor, if any, named at the foot of the election petition.”
Sub-paragraph (6) of paragraph 5 (supra) goes on to provide for sanction in the event of non-compliance with the preceding sub-paragraphs. It states;-
“(6) An election petition which does not conform with sub-paragraph (1) of this paragraph of any provision of that sub-paragraph is defective and may be struck out by the Election Tribunal.” (Underlining mine).
A careful perusal of the petition filed by the appellant vis-a-vis paragraph 5 of schedule 5 to decree No. 5 showed that the appellant was in no way guided by the intendment of paragraph 5 of Schedule 5 (above). Thus she has not specified, to mention a few, the candidates interested in the election petition, her right to present the petition, the holding of an election, the scores of the candidates and the person returned as the winner of the election.
It is apparent from the wording of paragraph 5 of Schedule 5 to Decree No.5 that the pre-requisite for presenting an election petition is that an election to the National Assembly must have been held. Complaints which form the bases of such a petition must be founded on what happened during and after the election. Since the language of the enabling statute with particular reference to paragraphs 5 and 6 of schedule 5 to Decree No. 5 is plain and does not admit of any interpretation aid, it is incumbent on any tribunal to strictly adhere to the purport therein and decide accordingly. I agree with the submissions of the learned counsel for the 4th respondent that since there was no election complained about in this appeal the appellant failed through and through to present a petition for which the trial tribunal could assume jurisdiction. I came therefore, in total agreement with the trial tribunal which used its discretion as provided for in sub-paragraph (6) (above) judiciously to strike out the petition for non-compliance with the provisions on what an election petition should contain. In effect, what the appellant presented to the trial tribunal sitting in Asaba was a petition devoid of election petition flabour. I accordingly resolve issue No. 1` in favour of the respondent.
In the final analysis, the appeal fails and it is dismissed. I affirm the ruling of the Delta state National Assembly Election Tribunal sitting in Asaba and delivered on 3rd of May, 1999. I assess costs to the 4th respondent at N2,000.00
Other Citations: (1999)LCN/0564(CA)