⦿ CASE SUMMARY OF:
Dim Chukwuemeka Odumegwu Ojukwu v. Alha Ji Umaru Musa Yar’adua (2009) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Election petition
– Election petition
– Non compliance
– Substantially affected
Dim Chukwuemeka Odumegwu Ojukwu
1. Alha Ji Umaru Musa Yar’adua;
2. Dr. Goodluck Jonathan;
3. Independent National Electoral Commission (INEC);
4. The Chairman, Independent National Electoral Commission;
5. People’s Democratic Party (PDP)
(2009) 12 NWLR (Pt. 1154) 50 S.C.;
⦿ LEAD JUDGEMENT DELIVERED BY:
F. F. Tabai, J.S.C.
* FOR THE APPELLANT
– Mr. J.C Ezike.
* FOR THE RESPONDENT
– Mr. D.D. Dodo, SAN;
– Mr.Okon Efut
⦿ FACT (as relating to the issues)
This is an appeal against the decision of the Court of Appeal dated 3rd September 2007 wherein the petition was struck out. The petition itself was dated and presented on the 22nd May 2007.
The grounds of the petition without their particulars are:
GROUND 1: The election in which the 1st and 2nd Respondents were declared winners was not conducted in compliance with the 1999 Constitution and the Electoral Act 2006.
GROUND 2: The election did not meet the minimal requirement of Electoral democracy and the law and the Electoral Act 2006.
GROUND 3: Rudimentary requirements of fairness and equal treatment provided by the Constitution and the Electoral Act were not extended to the Petitioner and to potential voters in Anambra, Imo, Abia, Enngu and Ebonyi States.
GROUND 4: The 1st and 2nd Respondents are not qualified to contest for election to the office of President and Vice President respectively because having been employed by the people of Katsina and Bayelsa States as their Chief Public Servants or Chief Executives they did not contrary to Section 137(g) of the 1999 Constitution resign or withdraw from their offices as executive governors at all prior to the said Presidential Election.
By a motion dated 1st August 2007 and several other motions filed on the 3rd of August 2007, the 1st and 2nd Respondents also prayed the Court below for an order dismissing and/or striking out the petition on the grounds inter alia:
(i) That the petition is defective and in clear breach of the express provisions of the Electoral Act 2006.
(ii) That some of the petitioner’s prayers do not flow from the petition.
(iii) That 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.
By its ruling on the 3rd September 2007 the applications were sustained and the petition struck out. As I said earlier, this appeal is against that ruling.
1. Whether the Court of Appeal was right to hold that grounds 2 and 3 of the petition do not conform with or relate any of the 4 grounds set out in Section 145(1) of the Electoral Act 2006?
2. Whether the Court of Appeal was right to rely on Section 146 of the Electoral Act 2006 to strike out ground 1 of the petition after it had earlier held the said ground to be competent?
3. Whether having held that ground 4 of the petition was competent, the Court of Appeal was right to consider its merit and struck it out?
4. Whether the approach adopted by the Court of Appeal in reaching its decision to strike out the petition has occasioned a miscarriage of justice?
⦿ HOLDING & RATIO DECIDENDI
IN ANSWERING THE ISSUES OF THE APPEAL, THE SUPREME COURT STATED, IN ITS’ MAJORITY JUDGEMENT:
1. I am inclined to agree with the Court below about the duty of the Petitioner/Appellant to plead not only noncompliance but also that the non-compliance substantially affected the result of the election. That, in my view, is the logical construction of Section 145(1)(b) and Section 146(1) of the Electoral Act. Section 145(1)(b) speaks simply of non-compliance without any qualification. But Section 146(1) of the Act provides specifically for the degree of noncompliance by reason of which an election can be invalidated. The provision is an amplification of the otherwise unspecified noncompliance in Section 145(1)(b) of the Act. It follows that the relevant portion of Section 146(1) must, of necessity, be read in conjunction with Section 145(1)(b) of the Act.
For the purpose of meeting the requirements of the combined provisions of Sections 145(1)(b) and 146(1) of the Electoral Act therefore, a petitioner who challenges the election of a respondent on the ground of non-compliance with the provisions of the Electoral Act must plead not just the fact of the alleged noncompliance, but must go a step further to plead that the noncompliance substantially affected the result of the election. This my view accords with common sense. It is inconceivable to suggest that the bare assertion of non-compliance in an election petition without more is sufficient pleading to sustain the petition. If that were so then practically every election petition would succeed, in that, there is, in practical terms, no election without one form of non-compliance or the other. That obviously cannot be the purpose of the provisions of Section 145(1)(b) and 146(1) of the Electoral Act. I am firmly of the view that for the purpose of sustaining a petition on the allegation of non-compliance with the provisions of the Electoral Act there must be the assertion in the petition that the non-compliance substantially affected the result.
2. Now on the contents of the petition, I have carefully examined the grounds of the petition and the 28 paragraph written statement on oath of the sole witness, Dr. Paul Dike. The statement is, as it were, and by the provisions of paragraph 4(1) (2) and (3) of the Election Tribunal and Court Practice Directions 2007, the front loaded evidence-in-chief by which the petition is to be proved. In paragraphs 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the said statement a number of allegations of non-compliance are made. These include non publication and display of voters register in Anambra, Abia, Ebonyi, Enugu and Imo States, non voting in the same states in the South East Zone of the country, non provision of polling booths, the petitioners inability to see the Resident Electoral Commissioner and the intimidating presence of soldiers in the streets. In paragraph 10 thereof the witness stated that he personally monitored the election by four named Local Government Areas of Anambra State and observed that no voting took place in any of them. This cannot be proof that there was no election in over 700 Local Governments of the country. There was no assertion in the said paragraphs that the alleged non-compliances substantially affected the result of the election. On the face of it, the petition is completely lacking in materials by which its ground of non-compliance with the provisions of Section 145(1)(b) of the Electoral Act can be proved. In so far as the allegation of non-compliances is concerned the petition is patently devoid of any substance and thus discloses no reasonable cause of action.
3. In the face of this manifest lack of substance with respect to the allegations of non-compliances, could the Court of Appeal have gone on to trial of that issue? I shall answer this question in the negative. The court below was perfectly in order to strike out ground 1 of the petition for non disclosure of any reasonable cause of action. And by extension the court below could, very well, have struck out grounds 2 and 3 of the provisions of the Act.
4. While persons employed in the civil or public service of the Federation or of a State include staff of the President, Vice President, Governors an Deputy Governors, they do not however include the President, Vice President, Governors and Deputy Governors. Learned counsel for the 1st – 4th Respondents referred to these definitions in Section 318 of the Constitution and submitted that by excluding elected officers, like Governors and Deputy Governors from the list of persons “employed” in the civil or public service of a State, Governors and Deputy Governors are not civil or public servants within the provision of Section 137(1)(g) of the Constitution. I agree entirely with this submission, and to which the Appellant has no answer. I agree that the latin maxim “expressio unius est exclusion alterius” applies to exclude Governors and Deputy Governors. In like manner while persons employed in the civil or public service of the Federation and of a state includes Clerk or other staff of the National Assembly, and State Assemblies, they do not include elected members of the National and State Assemblies.
**OGUNTADE JSC, DISSENTING
1. It is saddening in the extreme that Section 146(1) above, a provision which was designed to ensure that minor infractions of the Electoral Act which could not in any event be expected to have an effect on the result of an election has been elevated by our courts into a ground for an accommodation of the most glaring failure to comply with the provisions of the Electoral Act. Let me say here once more, that the legislature has in good faith done what is expected of it by incorporating into our Electoral Act a provision which is to be found in or read into the Electoral Laws of several other countries which place a premium on democratic governance.
2. A close reading of section 146(1) above easily shows that the noncompliance with the Act which can be overlooked or forgiven is one which arises notwithstanding that the election “was conducted substantially in accordance with the principles of’ the Electoral Act. Where a petitioner’s complaint is founded on non-compliance with an essential condition precedent to the conduct of the election, this cannot and ought not to be seen as a non-compliance which did not substantially affect the result of the election. The argument that if all incidents of noncompliance are penalized by annulling the election, no election would survive a scrutinisation is in my view a weak excuse for the unwillingness to observe the provisions of the law. This is because there is in-built in section 146(1) a provision to excuse or forgive a non-compliance which does not substantially affect the result of the election. My view is that the preponderant majority of election petitions in Nigeria would fail in our courts even in the face of clear evidence of serious malpractices unless, a proper and correct interpretation is given to section 146(1).
3. It seems to me that an allegation that the ballot papers used for the Presidential election across the length and breadth of Nigeria is at least one that the court below ought to have allowed the petitioner to ventilate. Whether it would succeed or not is another matter. In the nature of this case, it seems to me that the petitioner was muzzled and driven away from the judgment seat before he has aired his complaints.
**ONNOGHEN JSC, DISSENTING
1. Section 146 (1) of the Electoral Act, 2006 relied upon by the lower court provides as follows:- “An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election”.
From the above provisions, it is very clear and I hold the considered view that the section cannot be used as a ground of preliminary objection as it is clearly applicable after evidence has been called by the parties and the court is at the stage of determining the petition. The section applies when the court or tribunal is evaluating the evidence before it on non-compliance with the provisions of the Act and after address by counsel; it cannot come into play before that as it is the duty of the court to be satisfied or for it to “appeal” to the court that an election was conducted substantially in accordance with the principles of the Act and that the noncompliance did not affect substantially the result of the election. There must therefore be facts in prove the evidence of which is usually produced at the trial or hearing of the petition.
2. That apart, I do not agree that there is any duty on a petitioner in addition to pleading non-compliance with the principles of the Act to further plead that the noncompliance substantially affected the result of the election in every case of non-compliance as it is not every noncompliance that would affect the result of an election. There are certain non-compliances that go to the root of an election in that they are absolute in the sense that once established the purported election is invalid and as such there would be no result to be substantially affected by the non-compliance. For instance where an election is conducted with an invalid voters register can there be a result of an election to be substantially affected by the noncompliance? Obviously none as the purported election is null and void ab initio. Secondly, voting is by ballot papers. It is the ballot papers cast in an election that is counted at the end of the election to determine the winner and loser(s) of the election, which is, the result of the election. The Electoral Act, 2006 makes provisions for ballot papers and determines what a valid ballot paper is. In section 45(2) of the Act, a valid ballot paper must be printed in booklet form and serialized. Where ballot papers’ used in an election are alleged not to be serialized or in conformity with section 45(2) of the Act, they are in law, not ballot papers as they are invalid. Consequently any election conducted with invalid ballot papers is a nullity and you cannot expect any result to come out of such an election as, in law, you cannot have something out of nothing; that is in accord also with common sense. Section 67(1) of the Act provides clearly that an invalid ballot paper cast at an election is not to be counted as vote. In the instant case all the ballot papers used at the election in question are alleged to be invalid by reason of non-compliance with the Act. Where then is the result of the election to be affected substantially by the noncompliance? Obviously none!
3. Thirdly, can there be valid election where there is total failure to accredit voters at an election? I hold the considered view that once a petitioner is able to prove that there was no accreditation of voters in an election, that election is invalid ab initio.
4. In the instant case, the application of section 146 (1) of the Electoral Act, 2006 to the preliminary objections was suo motu. It is not the law that a court cannot raise an issue suo motu but that if the issue is necessary for the determination of the matter before it, the court must call on the parties or their counsel to address it on same before basing its decision on it. In the instant case, the lower court did not call on counsel for either party to address it on section 146(1) of the Electoral Act, 2006 when the objections were not based on the said section by the objectors. By not inviting counsel for the appellant to address it on that provision of the Act, the lower court denied the appellant of his right to fair hearing when it proceeded to base its decision on that provision thereby rendering the decision liable to be set aside.
**P.O Aderemi JSC, DISSENTING
1. What I have observed is that the court below made too many findings on issues to be contested in the substantive trial. I should here say that it has now been firmly established that findings on issues to be contested in the substantive trial must not be made at the hearing of the interlocutory application such as the one at hand, much less determining the case.
⦿ SOME PROVISION(S)
Section 147(3) of the Electoral Act 2006 provides: “subject to the provision of subsection (2) of Section 149 of this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Part of this Act or the provisions of the first Schedule of this Act.”
Section 145(1) of the Electoral Act says: “An election may be questioned on any of the following grounds: (a) that the person whose election in 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 provision of this Act. (c) that the Respondent was not duly elected by 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.”
Section 146(d) of the Act provides: “An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
Paragraph 4(1) of the First Schedule to the Electoral Act 2006 comes within the Rules and Procedure for Election Petitions. The said Paragraph 4 states: “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.”
Paragraph 4 of the Election Tribunal and Court Practice Directions 2007 says: “4.(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court. (2) Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where is he not represented by a legal practitioner. There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the depositions.
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
A petition which on the face of it is defective or which in the face of the written statements on oath discloses no reasonable cause of action should be struck out on the application of the Respondent. – F.F Tabai, JSC. Ojukwu v. Yar’adua (2009)
An application for a Preliminary Objection is akin to a Demurrer Application. The whole basis of a DEMURRER is, in effect, to short circuit the action and by a preliminary point of law, to show that the action founded on the writ of summons or originating summons or even statement of claim cannot be maintained. Going by the well-known rules of court, once a person has pleaded, as in the instant case with respect to the 1st, 2nd and 5th respondents who filed Replies to the Petition, the time for demurrer is passed. They cannot then under the Rules of Court seek to raise, by way of preliminary objection, what they should have done earlier under the rules of Court by demurrer. – P.O Aderemi, JSC. Ojukwu v. Yar’adua (2009)
No dispute is settled unless it is well settled. – Oguntade, JSC. Ojukwu v. Yar’adua (2009)
The degree of civilization of any country that prides itself in upholding the rule of law as a way of life is often measured by several parameters, chief among which is the flexibility or otherwise of accessibility to court by its citizens Faced with the materials before us, I regret to say that to dismiss this appeal is to forever block the appellant from accessing justice. An uninhibited accessibility by a citizen to court of law to ventilate real or imagined grievance is a hallmark of determining the degree of civilization of a country. Let it be said that guest for justice is insatiable when it is realised that that great phenomenon called JUSTICE is not a one way traffic; not even a two-way traffic; I beg to say a court of law which is also a court of justice must always ensure that JUSTICE flowing out from its sanctuary which, of course, must be in accordance with the laws of the land, is not only for the plaintiff (the complainant) not even only for the defendant (the person complained against) but also for the larger society whose psyche is always affected, one way or the other, by any judicial pronouncement. – P.O Aderemi, JSC. Ojukwu v. Yar’adua (2009)