Silas Odo V. Fidelis Ayogu & Ors (1999)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

As can be garnered from the Petition filed by the Petitioner on 12/3/99 especially at page 1 of the record of appeal, the Petitioner, 1st Respondent and one Onyeze Mike were candidates in the Federal House of Representatives election which was held on 20/2/99 nation-wide. Each of the three candidates desired to represent the good people of Igbo-Eze North/Udenu Federal Constituency in the Federal House of Representatives. The three stated candidates contested on the Platforms of Peoples Democratic Party (PDP), All Peoples Party (APP) and Alliance for Democracy (AD) respectively. At the end of the election, the 2nd – 4th Respondents declared the 1st Respondent as the winner. The Petitioner felt he had cause to cry foul and consequently filed this Petition at the National Assembly Election Tribunal, Enugu State on 12/3/99.

It is instructive to state that on 19/3/99, a motion on notice was filed on behalf of the Petitioner/Appellant who desired to join some Returning Officers at the stated election as co-respondents. Presumably, this was aimed at giving the Petition real live and blood. The motion was argued on 10/4/99.

In a two-page reserved ruling handed out by the Trial Tribunal on 12/4/99, the application to amend and/or join the necessary parties was refused. The Tribunal adopted their ruling in suit No. NAET/ST/EN/2/99. Surprisingly too, arguments of all counsel were not considered and appraised at all. The Petitioner/Appellant felt dis-satisfied with the interlocutory ruling and so appealed to this court on 16/4/99.

The Notice of Appeal dated 14/4/99 was filed on 16/4/99.

It was accompanied by six grounds of appeal which, without their particulars, read as follows:-

“(i) The Tribunal erred in law in refusing the application for amendment sought.

(ii) The Honourable Tribunal erred in law in its reliance on the decision in Appeal No. CA/A/EPPR/1/99: Chief Chuba Egolum v. General Olusegun Obasanjo in refusing the amendment.

(iii) The reliance placed by the Honourable Tribunal on the decision in Ogundiran v. Olalekan & Ors (1998) 8 NWLR Part 561) page 321 was equally misconceived and wrong in law.

(iv) The Honourable Tribunal erred in law when it relied on its ruling in Petition No. NAET/ST/En/2/99 and refused the amendment and stated:

‘The purported amendment Exhibit A is a substantial alteration of the original election petition.

Alteration of these matters are forbidden under the law cited above’.

(v) The Honourable Tribunal erred in Law when it failed to hold that paragraphs 7 to 19 of the 1st Respondent’s counter affidavit contravened the provision of section 87 of the Evidence Act.

(vi) The Honourable Tribunal erred in Law when in its Ruling, it adopted its Ruling in Suit No. NAET/ST/EN/2/99 to apply in this case and failed to distinguish this case with (sic) Chief Chuba Egolum v. General Olusegun Obasanjo.”

The Appellant’s brief, dated 23/4/99, was filed on the same date on his behalf by Ben. C. Ezugwu Esq., of counsel.

Two issues formulated by him on page 1 read as follows:-

“(a) Whether the Tribunal was right in refusing the amendment sought for the reasons advanced.

(b) Was the Tribunal right in adopting wholly its ruling in suit No NAET/ST/EN/2/99 to refuse the amendment sought.”

The 1st Respondent’s brief, dated 29/4/99, was filed on 30/4/99 by O.N. Abugu Esq, of Counsel. Two pragmatic issues formulated on page 3 of the brief read as follows:-

“3.02 Whether the appellant has a right of interlocutory appeal against the interlocutory ruling of the Tribunal dismissing the motion to join additional co-respondents to the Petition.

Whether the appeal is competent and the Court of Appeal has the jurisdiction to hear and determine this appeal.

3.03 Whether the Tribunal has the jurisdiction to make an amendment to the Petition by joining additional co-respondents thereto after the expiration of the 30 days limited by S. 77 National Assembly (Basic Constitutional and Transitional Provisions) Decree No 5 of 1999 (hereinafter referred to as ‘Decree 5 1999’) for presenting a petition under Decree 5 1999”.

On behalf of the 2nd – 4th Respondents, Eze O. Eze Esq, Chief Legal Officer, Ministry of Justice, Enugu, filed the brief dated 26/4/99 on 30/4/99. The three issues formulated by him on pages 2 – 3 of the said brief appear concise and pungent. They read as follows:-

“1. Does the Court of Appeal have jurisdiction to hear interlocutory appeals in election petitions?

2. Whether the Election Tribunal was right in rejecting the amendment sought for in the circumstance of the case.
3. Can the Election Tribunal jurisdiction when a Petitioner has not complied with section 78(2) of Decree No 5 of 1999?”

On 3/5/99 when the appeal fell due for hearing, each of the three Learned Counsel adopted the brief filed on behalf of his client and expartiated on plausible arguments adumbrated therein.

Ben C. Ezugwu Esq, Learned Counsel for the Appellant, submitted that the amendment sought, was only to join some co-respondents who were agents of the 2nd Respondent. Learned Counsel observed that right of amendment is provided by paragraph 15 (1) of schedule 5 of Decree No 5 of 1999.

Amendment cannot be fettered unless it would introduce some elements of prejudice against the other party’s case. Learned Counsel referred to the cases of Ezenwa v. Mazeli 15 W.A.C.A. 67, Akinkuowo v. Fatimoju (1965) N.M.L.R. 349, Ojah v. Ogboni (1976) 4 S.C. 69 at page 75.

Learned Counsel observed that right to amend is only fettered by paragraph 15 (2) (a) (i) (ii) and (iii) of schedule 5 to the Decree which limits same to the 30 days for filing a petition. He referred to Adediran v. Ladapo (1991) 1 LRECN 110 at page 122. Learned Counsel further submitted that the decision in Chief Chuba Egolum v. General Olusegun Obasanjo CA/A/EPPR/13/99 is inapplicable. It is distinguishable from the instant case as application herein was filed within 30 days of declaration of result. Learned Counsel contended that the Trial Tribunal misconceived the decision of this Court in Ogundiran v. Olalekan (1998) NWLR (Pt.561) pages 3-4.

Learned Counsel further submitted that joining of agents whose principal – INEC is a party does not amount to a substantial alteration of the original election petition. He referred to the case of Sanusi v. Makinde (1994) 5 NWLR (Pt.343) 214 at page 227.

Learned Counsel made oral submission that this court has jurisdiction on matters relating to interlocutory points vide Section 81 (1) and (2) of the Decree. He also referred to Itegbe v. Prof. Eme Awa & Ors (1989) 2 NEPLR 92 at page 100, Nelson Tegbe v. Ezewe & Ors (1989) 2 NEPLR 1. Learned counsel cited the case of Omoboriowo v. Ajasin (1984) 1 S.C. 206 in aid of his submission that evidence will not be led on parties who were not joined.

Mr. O.N. Abugu, Learned Counsel for the 1st Respondent, submitted that the appeal is incompetent as Section 81 of the Decree did not create two rights of appeal but only one right of appeal against a final decision. He referred to section 81 (2) as well as paragraph 2 (2) of schedule 5 to the Decree.

Learned Counsel cited the cases of Orubu v. NEC (1988) 5 NWLR (Pt.94) 323, A. Okokhue v. J. Obada & Ors (1989) 5 NWLR (Pt.120) 185.

Learned Counsel submitted that election petitions are sui generis and are not considered to be identical with other civil proceedings. He referred to the cases of Chief Collins Obi v. Chief Sam Mbakwe & 2 Ors (1984) 1 SCNLR 192, (1984) 1 S.C. 325; Onitiri v. T.O.S. Benson (1960) 5 FS.C 150 at page 153. Learned Counsel contended that a right of appeal must be conferred by statute and for the right to exist, it must come within the purview of the statute. He referred to the case of Ohai v. Akpoemonye (1999) 1 NWLR (Pt.588) 521 at page 529. Learned Counsel then urged that the appeal should be dismissed for want of jurisdiction.

Learned Counsel, on his second formulated issue, submitted that joinder of necessary statutory parties must be made within the 30 days from the date the result of the election was declared vide Section 77 of the Decree. He observed that as at 12/4/99 when the Trial Tribunal refused the appellant’s motion to join additional co-respondents to the petition, it had no jurisdiction to amend as desired by the appellant. He referred to Ogundiran v. Adeoti Olalekan & 3 Ors (1998) 8 NWLR (Pt.561) 313. He contended that a person can only be called a party to the Petition from the day that he is joined. He cited the cases of Oduola v. Ogunjobi & Ors (1986) 2 N.W.L.R. (Pt.23) 508, Balogun v. Panalpina World Transport (Nig) Ltd (1999) 1 NWLR (Pt.585) 66; Sadiq Umar v. S. Onikata & 2 Ors (1999) 3 NWLR (Pt.596) 558.

Eze O. Eze Esq, Learned Counsel for the 2nd – 4th Respondents, was at one accord with Mr. O.N. Abugu in all material respects. He contended that decision as used in Section 81 (2) of the Decree can only mean a final decision of the Trial Tribunal which should be appealed against; not an interlocutory determination. A final decision is one which determines finally the rights of the parties. He referred to the case of Omonuwa v. Oshodi (1985) 2 NWLR (Pt.10) 924, as well as Orubu v. NEC (supra) at page 34.

Learned Counsel submitted that application for leave to amend must be made and obtained and the amendment itself filed within the period allowed for the presentation of the petition.

He referred to the cases of Bowaje v. Adediwura (1976) 6 S.C. 143 at page 146, Amudipe v. Arojodi (1978) 9 and 10 S.C. 27, Lamai v. Orbih (1980) 5 – 7 S.C. 28, Opia v. Ibru (1992) 3 NWLR (Pt.231) 658, Fapohunda v. Oluwasola (1999) 3 NWLR (Pt.596) 531.

Learned Counsel further submitted that since the petition was not competent, it was rightly struck out by the Trial Tribunal. He referred to the case of Madukolu v. Nkemdilim (1962) All N.L.R. 581.

Learned Counsel opined that the appellant confessed that his petition was filed without complying with the mandatory and statutory provisions of section 78 (2) of Decree No 5 of 1999 as he failed to join presiding officers and Returning Officers whose conducts were in question. There was no fulfillment of condition precedent to the exercise of jurisdiction as ‘deemed’ and ‘necessary’ parties were not joined. He referred to PDP v. APP (1999) 3 NWLR (Pt.594) 238; Gbadamosi v. Azeez (1998) 9 NWLR (Pt.566) 471, Green v. Green (1987) 3 NWLR (Pt.61) 480. Learned Counsel finally urged that the appeal be dismissed.

I should state at this stage that the grounds of appeal filed by the appellant are legion. They appear to be out of tune with the issues formulated on behalf of the appellant himself. It has been stated times without number but I need to restate it again that appeals are not won by the quantity of grounds filed but rather by the quality of same. Grounds of appeal should not be raked up to make up number. Ground No 5 of the grounds of appeal has no issue emanating from it. It was not touched in appellant’s brief as well as in oral argument by  his counsel. Ground 5 goes to no avail. It must be, and it is hereby struck out.

The issues formulated with utmost relish on behalf of the parties, in my considered view, appear to over-lap. In considering this appeal, I have regard for the issues formulated by Eze O. Eze, Esq, on behalf of 2nd 4th Respondents.

The three issues therein are germane and all encompassing.

The first issue relates to whether or not this Court has jurisdiction to hear interlocutory appeals in election petitions.

Section 81 (1) of Decree No 5 of 1999 imbues this Court with jurisdiction to hear and determine appeals on election petition under the Decree. Section 81 (2) of the Decree stipulates that:-

“Notwithstanding anything to the contrary in any other enactment, notice of appeal to the Court of Appeal, on an election petition shall be given within 7 days from the date of the decision appealed against”.

It is instructive to note here that paragraph 2 (2) of schedule 5 to the Decree provides that an appeal on an election petition shall be determined within 30 days from the date of filing the Notice of Appeal. It must be noted that the Law maker deliberately used the words – ‘on an election petition’, not ‘in an election petition’. To my mind, on an election petition wears the semblance of completion of same while in an election petition depicts same as done half way. The decision in Orubu v. NEC (1988) 12 S.C.N.J. (Pt.11) 254 at 275, which dealt with a similar situation in Decree No 37 of 1987, lends considerable weight to my view. There, Nnamani, JSC had this to say:-

“It would seem to me that the only matter which is appealable to the Court of Appeal is a determination of the election petition.

I am in total agreement with Dr. Odje learned Senior Advocate that in distinction to this, a decision in an election petition must mean a decision in the course of proceedings and would include the interlocutory question as was settled in this case. I agree too that the combined effect of Section 29 and paragraphs 27 and 28 of Schedule 3 must be to leave interlocutory decisions in an election petition to the High Court and to preclude appeal on them – this for very good reason. See Onitiri v. Benson 1960 5 FSC 150 at 154. It is my view therefore that the Court of Appeal had no jurisdiction under the Decree to entertain the appeal herein”.

I need to point it out here, that Decree No 5 of 1999 has no provision for the number of days to file an interlocutory appeal as well as the duration of time to determine same. Appeal on an election petition has been held in Orubu v. NEC (supra) and followed in Okokhue v. Obadan (supra) to mean a determination of any question whether any person has become elected or that the election was voided, that is, the determination on the merits.

Appeal against an interlocutory question or matter must form part of the appeal against the final decision of the Tribunal determining the election on the merits or otherwise but nonetheless finally leaving the Tribunal fuctus officio. There cannot be a sort of ding-dong in the performance of assigned responsibilities by the Trial Tribunal and this Court. It is all aimed at quick disposal of election petitions. An interlocutory appeal, if given room, will constitute a cog to the final hearing and determination of an election petition within 60 days stipulated for same.

I resolve the first issue against the appellant. This Court has no jurisdiction to hear interlocutory appeals in election petitions.

The second issue is whether the election Tribunal was right in rejecting the amendment sought in the circumstance of the case.

The amendment sought was made to enable the Petitioner join necessary statutory parties to wit:- Presiding and Returning Officers who participated in the conduct of the election.

Section 77 of the Decree provides that a petition must be commenced within 30 days of declaration of result.

Parties are ad idem that the election was conducted on 20/2/99. Result was declared on the same day. Petition was filed on 12/3/99. Application to amend and join the necessary statutory parties was filed on 19/3/99. Application was heard by the Tribunal on 10/4/99 while a ruling was handed out on 12/4/99.

The Appellant’s Counsel attempted to make a near ingenius submission that the co-respondents sought to be joined were mere agents of the 2nd Respondent – INEC. The Presiding and Returning Officers are statutory parties as dictated by Section 78 (2) of the Decree which says they shall for the purpose of the Decree be deemed to be respondents and shall be joined in the election petition as necessary parties. They have a superior juristic legal status which is for more superior than the rather elastic status of an agent vis-a-vis his principal in the common Law of contract. The comparison sounds fantastic.

Application for amendment to join the necessary statutory parties must be made to, and granted by the Tribunal within the statutory period of 30 days stipulated for filing the petition.

This is the tenor of paragraph 15 (2) (a) (1) to Schedule 5 of Decree No 5 of 1999. Refer to Ogundokun v. Olalekan (supra) 313; Opia v. Ibru (supra) 658; Sadiq Umar v. Onikata (supra) 558.

It should be stated in very clear terms that grant of joinder of parties cannot relate back as election petitions are sui generis. See Eseduwo v. INEC (1999) 3 NWLR (Pt.594) 215 at p. 219. Time is usually of essence. A respondent becomes a Party to the petition from the day he is joined. See Oduola v. Ogunjobi (supra) 508; Balogun v. Panalpina World Transport (Nig) Ltd (supra) 66. Action against the co-respondent sought to be joined will only commence from the day that he is joined. Joinder could not have been made by the Tribunal on 12/4/99 outside the limited period.

The 2nd issue is also resolved against the Appellant as the Tribunal rightly refused the amendment sought to join the necessary statutory parties as at 12/4/99 as it was belated.

The 3rd issue deals with whether the Election Tribunal could assume jurisdiction when a petitioner has not complied with section 78 (2) of Decree No 5 of 1999. The stated section provides as follows:-

“The person whose election is complained of is in this Decree referred to as the respondent, but if the petition 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 the election, the Electoral Officer, Presiding Officer, or Returning Officer or other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party”.

(Underlined by me).

It is beyond argument that the Appellant, in paragraph 7 (c) of his petition, made certain scurrilous allegations about the conduct of certain officials who took part in the conduct of the election. The Petitioner/Appellant alleged that votes scored in certain Wards were not recorded. Votes were arbitrarily entered into Forms EC8A (1) in favour of the 1st Respondent.

The Appellant desired to join the officials as co-respondents.

Reasons advanced by the Appellant in his affidavit, as contained in his paragraphs 2, 3 and 4, are instructive. They read as follow:-

“2. That the Petition was filed on 12th March, 1999 before the solicitors obtained a copy of Decree No 5 of 1999.

3. That on seeing the Decree it became necessary to join the additional Respondents in order to comply with Section 78 (2) of the said Decree.
4. That this amendment is necessary to bring all the concerned parties before this Tribunal”.

By the above averments, the appellant admitted that his petition was incompetent. The petition was not initiated with due process of the law as all the necessary statutory parties who shall be deemed to be parties were not before the Tribunal. The petition was rightly struck out by the Trial Tribunal for want of competence. Refer to Madukolu v. Nkemdilim (supra) at page 585.

Failure to comply with the statutory provisions at the time of filing an election petition is fatal and in such cases, the Tribunal has no jurisdiction to entertain the petition. Refer to B. Nwoye v. D.N. Anyichie & Ors (1989) 2 NWLR (Pt.101) 110 at 116 per Uwaifo, JCA (as he then was).

It is pertinent to say here that the Petitioner/Appellant herein should have acted out of abundance of caution by filing another petition with the names of all necessary statutory parties on 19/3/99 instead of the application filed to join the needed co-respondents. He would not have found himself in his present precarious situation in which his Petition was struck out. As the event turned out, the Tribunal had no jurisdiction to hear his Petition. The Trial Tribunal rightly struck out the Petition.

I come to the unalloyed conclusion that this appeal lacks merit. It is accordingly hereby dismissed by me. I award N1,500 costs to each set of Respondents.

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Other Citations: (1999)LCN/0621(CA)