Nnaemeka Ikechukwu Orizu V. Alphonsus Okey Uzoegwu & Ors (1999)

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UBAEZONU, J.C.A.

This is an appeal against the ruling of the Anambra State House of Assembly Election Tribunal delivered on 12/3/99 striking out the petition of the appellant. The appellant filed his appeal on 19/3/99, and thereafter filed his brief of argument through his counsel. Three issues were formulated in the brief viz:

“1. Whether qualification is a pre-election matter and therefore cannot be a ground for questioning an election petition.

2. Whether the absence of an attestation clause made the petition to substantially deviate from Form, TF.002 in the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999.
3. Whether the respondents could validly raise a preliminary objection after taking steps in the proceedings.”

His first issue in this appeal which deals with qualification becomes a non issue since the case did not go into a trial and therefore no evidence was led as regards the qualification of the 1st respondent. I shall therefore not go into the issue of the qualification or otherwise of the 1st respondent.

The second issue deals with whether the petition was properly pending in view of non-compliance of the petition with attestation clause as required by the rules. Learned counsel submits that the requirement of paragraph 5 (7) of Schedule 6 to Decree 3 of 1999 is merely regulatory, and not mandatory. He argues that while harsh consequences are provided for non-compliance with paragraph 5(1), (4) and (5), no such consequences are prescribed for non-compliance with paragraph 5(7). He contends that as regards paragraph 5(7) only substantial compliance is required not total compliance. Counsel refers to the definition of substantial compliance in the Nigerian Law Dictionary (1st edition). He submits that the defect in the petition could be cured by amendment under paragraph 50(4) of Schedule 6 to the Decree.

On the 3rd issue, counsel submits that the respondent having taken steps in the proceeding, it is too late in the day to raise any preliminary objection to the petition. He submits that the 1st respondent filed his reply on the 5th March, 1999 after being served with the petition while the other respondents filed unconditional memorandum of appearance on 9th March, 1999. A litigant seeking to raise a preliminary objection should only enter a conditional appearance to the action. He refers to and relied on paragraph 50(2) and (5) of Schedule 6 to the Decree. He refers to Kudu v. Aliyu & ors. (1992) 3 NWLR (Pt.231) 615; Ariori v. Elemo (1983) 1 SCNLR 1; Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647; Odu’a Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt.170) 761.

The 1st respondent also filed a brief of argument and therein formulated the following two issues:

1. Whether the Constitutional Court can properly grant the relief sought by the appellant in view of the mandatory provisions of paragraph 2(1) of Schedule 6, Decree No.3 of 1999.
2. Whether the Election Tribunal was correct to have struck out the petition for non-compliance with the provisions of paragraph 5(7) of Schedule 6 Decree No.3 of 1999.”

Arguing his 1st issue, learned counsel for 1st respondent submits that having regard to the relief sought from this court viz “Reversal of the whole ruling” this court cannot make the order sought in view of the provisions of paragraph 2(1) of Schedule 6 to the Decree No.3 of 1999. He refers to Ekpo v. Calabar Local Government Council & Ors. (1993) 3 NWLR (Pt.281) 324 at 339 and 345; Richard Okafor v. Dr. Nwora & Ors. (CA/E/121/94) unreported – delivered on 21/12/94; Salati v. Shehu (1986) 1 NWLR (Pt.158) 198 at 199; Attorney-General of Lagos State v. Dosumu (1989) 3 NWLR (Pt.111) 552 at 602.

Counsel further submits that an election petition not initiated in accordance with paragraph 5(7) of Schedule 6 to the Decree is not initiated in accordance with the due process of law. He refers to Ozobia v. Chuks Anah & Or. (1999) 5 NWLR (Pt.601) 1 CA/E/12/99 delivered on 4/3/99.

It is further argued that the tribunal could not amend the petition on the 9th March, 1999 since the 30 days for presentation of the petition had elapsed. Any amendment or the petition must be made with reference to section 132 of the Decree – see Kaugama v. National Electoral Commission (1993) 3 NWLR (Pt.284) 681.

On issue No.2, it is submitted that the tribunal was right in holding that the petition did not comply with paragraph 5(7) of Schedule 6. Also, the tribunal was right in holding that it was too late in the day for amendment since the period for filing the petition had elapsed. Furthermore, the appellant did not at any time apply to amend the petition – see the Federal High Court Rules Order 33 rule 2 which applies in the election petition proceedings.

It is further submitted that the court does not have the jurisdiction to hear this appeal since the petition was not filed in accordance with the law i.e. Decree No.3 of 1999.

Learned counsel for 2nd and 3rd respondents also filed a brief of argument. Counsel formulated three issues viz:

“(a) Whether disqualification or qualification is a pre-election matter or a matter for determination in the Election Tribunal.

(b) Whether the absence of attestation clause is fatal to the competence of the petition.

(c) What is the effect of the petitioner or his solicitor not signing his petition?”

On the issue of qualification or disqualification, it is submitted that the tribunal had jurisdiction to deal with it. I entirely agree with the submission. Counsel refers to Ali Peters v. Atigwe David appeal No.CA/E/38/99 delivered on 6/4/99 (unreported) [now reported in (1999) 5 NWLR (Pt.603) 486.

On the 2nd issue, counsel submits that the absence of the attestation clause as required by paragraph 5(7) of Schedule 6 renders the petition incompetent. Any attempt to amend it must be made within the period prescribed by section 132 of the Decree. It is further argued that a secretary of the tribunal is not the same as the registrar. On the third issue, it is submitted that the petition must be signed by the petitioner himself or his solicitor. None of this was done.

Let me dispose of the issue of qualification or non-qualification which is raised in the briefs. As I had said, that issue is a non-issue in this appeal as whether a person is qualified or not qualified is a matter of evidence to be led during the hearing. The mere fact that a party has pleaded in his petition that the other is not qualified because he is a convict or an illiterate is not sufficient for the tribunal to find on it until the evidence of the disqualification or non-qualification is led. In the absence of evidence such plea in the petition ends with the petition unless the tribunal is to rule whether it can go into the issue of qualification or non qualification. I have held and I hold once again that all the earlier judgments which say that the tribunal has no jurisdiction to entertain the issue of qualification; that such issue is the exclusive preserve of the National Electoral Commission or Independent National Electoral Commission are wrong decisions – see Chibok v. Mohamed Bello & Or. (1993) 1 NWLR (Pt. 267) 109 at 117; See also Ikuomola v. Ige (1992) 4 NWLR (Pt. 236) 511 at 523; Doukpolagha v. George (1992)4 NWLR (Pt.236) 444 at 458. As I had stated in my earlier judgments, the decision of INEC that a candidate is qualified is as to nomination – no more no less. After the hurdle of nomination then the candidate goes through the hurdle of election. The provision of section 134(1)(a) of Decree No. 3 of 1999 is not for fun. I have flogged this issue sufficiently in my earlier judgment in CA/E/38/99, Ali Peters v. Atigwe David O. (unreported) delivered on 6th April, 1999 [now reported in (1999) 5 NWLR (Pt.603) 486]. I do not intend to over-flog it. Everything the tribunal said in this case about qualification or disqualification relying on the earlier reported decisions of this court is therefore wrong. Furthermore, the motion which the tribunal was considering was a motion to strike out the petition for non-compliance with the provisions of the Decree. There was no need for it to wander into the issue of qualification or non-qualification at that stage.

I now come to the crux of the matter in this appeal. It is as to whether the petition complied with the requirements of the Decree No.3 of 1999 (hereinbefore & after referred to simply as “the Decree). This is as formulated by the second issue in the appellant’s. 1st respondent’s and 2nd & 3rd respondents’ briefs. The petition is contained in pages 1 to 3 or the record of appeal. From the showing at Form TF.002, three signatures are relevant – see Federal Republic of Nigeria Official Gazelle (Extraordinary) Vol. 86 of 6th January 1999 page 200. The first signature is immediately after the prayer in the petition to be signed by the petitioner. The second is after the name of the solicitor or the petitioner if he is acting for himself. The third is after the attestation clause, to be signed by the secretary.

How does the petition in this appeal comply with the above requirements? The appellant in this appeal, Nnaemeka Ikechukwu Orizu, duly signed the petition before the tribunal and therefore before this court. Learned legal officer tried to project before us the argument that the appellant did not in fact sign the petition. I do not think that that argument can be made in any seriousness in view of the record before this court. After the name of the solicitor described in the petition as “advocate” an unknown person signed for him at a place where the solicitor ought to sign. It is clear from the petition that the solicitor. Stan Ojimaduka, did not sign the petition. Somebody else signed for him as shown by the word “for” before the name of the solicitor. From Form TF.002 there ought to be an attestation clause before the third signature. There is no such clause in the petition.

Furthermore, there is no signature of the secretary in the petition. What appears on the petition is a signature of the registrar, Thus, two signatures are missing in the petition i.e. the signature of the solicitor and the signature or the secretary. The attestation clause is also absent.

How do these defects affect the petition? Are they a matter of mere form or do they go to the validity of the petition? Paragraph 5 (7) of Schedule 6 to the Decree provides that:

‘The Form TF.002 set out in Schedule 7 to this Decree or one substantially like it, shall be sufficient for purposes of this paragraph.”

I would say straightaway that a petition which does not contain two of the three relevant signatures and the attestation clause is not in substantial conformity with the requirements of paragraph 5(7) of Schedule 6 of the Decree. The defects render the petition incompetent and of no effect for the purposes of the Decree. The absence of an attestation clause is serious.”

Attestation” is defined as:

“the appending of signature to a document executed by another by a person who is not a party to it in order to testify to its validity or genuineness”

– see the Nigerian Law Dictionary (1st edition) by Suleiman Nchi. Thus it is the attestation clause that on the face of the document says that the document was duly signed by the petitioner, the solicitor and above all by the secretary or the tribunal.

In the absence of the attestation clause, nobody can vouch as to the authenticity of the petition.

The next question is whether the petition could have been amended. In this respect, I shall refer to paragraph 50(1) and (4) of Schedule 6 to the Decree. They provide as follows:-

“50(1) Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Election Tribunal so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Election Tribunal may think fit and just.

(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Election Tribunal.”

Paragraph 50(1) gives the Election Tribunal the discretion to direct as to what to do in the case of non-compliance with any provision of the Schedule. Unless it can be shown that such a discretion is exercised arbitrarily or not in accordance with the tenets of justice, an appellate court should not interfere – see Enekebe v. Enekebe (1964) 1 All NLR 102; Solanke v. Ajibola (1968) 1 All NLR 46. I see nothing arbitrary or not in accord with the exercise of judicial discretion in what the tribunal did. As regards paragraph 50(4), assuming the objection to strike out the petition was an objection as to form, which it was not, it was not possible to amend the petition as such an exercise would entail rewriting the petition outside the statutory period for filing the petition contrary to section 132 of the Decree. I therefore hold that the petition was incompetent, and that it could not have been amended at the time the objection was taken.

The next issue that I want to deal with in this appeal is whether the respondents could take the objection after having taken a step in the proceeding. According to the appellant’s brief at page 5 he wrote as follows:

“Upon the receipt of the petition the 1st respondent filed his reply on 5th day of March 1999.

According to the 1st respondent’s brief, it was in the said reply that the 1st respondent raised the issue as to the competence of the petition. He followed his reply by a formal motion to strike out the petition. Both the reply in which the competence of the petition was raised and the formal motion to strike out the petition were taken out timeously and within a reasonable time as required by paragraph 50(2) of Schedule 6 to the Decree.

I shall now deal with the last issue in this appeal as raised by the first issue of the 1st respondent i.e. whether this court can grant the relief asked for by the appellant. The relief asked for by the appellant is “Reversal of the Whole Ruling”. If the ruling is reversed as asked for by the appellant the parties will go back to the status quo ante. The parties will go back to the Election Tribunal for the petition to be heard. This is no longer possible in law. Under paragraph 2(1) of Schedule 6 to the Decree, the election petition shall be determined within 60 days from the date on which the petition was filed. The petition was filed on 22/1/99. The time for determining the petition has expired. This court has no jurisdiction to extend time. To grant the relief asked for would be an exercise in futility.

Before I conclude this judgment, I want to say a word on the shoddy manner in which counsel for the appellant has handled his client’s case. Quite apart from the way and manner the petition was drafted and filed, learned counsel for the appellant did not appear in court but sent counsel who said that he was six months old at the Bar. The counsel did not know his left from his right. He did not even know how to adopt his brief. On any question by the court he kept flipping through his file for an answer. We deprecate the conduct of counsel briefed for this petition.

In the United States of America, litigants have a right of action against attorneys at-law law who bungle their case through gross incompetence or negligence. I wonder whether it is not yet time we reached that stage in this country in view of the lousiness and the air of abandon in which some counsel handle their client’s case. I say no more on this matter in the hope that the message will get to the appropriate quarters.

In the final analysis, this appeal fails and is hereby dismissed with N2,000 costs to the 1st respondent and N1,000 costs to 2nd and 3rd respondents.

Other Citations: (1999)LCN/0536(CA)