* Petitioner’s Reply – Content of, Necessity for.
* Motion on notice – Whether it must be supported by an Affidavit. Paragraph 47 (2) of the 1st Schedule considered.
* Federal High Court Rules – When and how does it apply to Election Petitions?
* The word “may” – when it is not “may”
* Illiterate jurat – purport of; a shield not a sword
* Gindiri vs. Nyako – What it decides
* Respondent’s Reply – Where not accompanied by documents– consequence.
* Payment for certification of public document – whether it must be endorsed on the document.
* Questioning an election on ground of majority of lawful votes – What to plead and prove.
* Over-voting – what it means and how it is proved.
* Non-compliance – Need to prove its substantiality and how it substantially affected the results of the election.
* Corrupt practices – Required to be proved beyond reasonable doubt.
IN THE GOVERNORSHIP ELECTION PETITION TRIBUNAL
OYO STATE
HOLDEN AT IBADAN
ON MONDAY THE 16TH DAY OF SEPTEMBER, 2019
PETITION NO. EPT/OY/GOV/01/2019
BEFORE THEIR LORDSHIPS:
BETWEEN:
AND
(Delivered by Muhammad I. Sirajo, Chairman)
INTRODUCTION:
Following the conclusion of election into the office of Governor of Oyo State, Nigeria, conducted on the 9th day of March, 2019, the electoral umpire, the INEC, the 1st respondent herein, declared Oluseyi Makinde, the 2nd respondent, the winner of the election with 515,621 votes and returned him elected as the Governor of Oyo State. That declaration was made on 10th March, 2019. Oluseyi Makinde contested the election under the platform of the Peoples’ Democratic Party, the 3rd respondent in this petition.
As a fallout of that electoral contest, Adelabu Adebayo Adekola and his party, the All Progressives Congress, who also contested the election against the 2nd and 3rd respondents, alongside forty (40) other candidates and their political parties, and who polled 357,982 votes, filed this petition as 1st and 2nd petitioners, wherein they challenged the declaration and return of the 2nd respondent.
The names of the other candidates, their political parties and votes scored by each of them are stated in the petition.
THE PLEADINGS:
The petitioners predicated their petition on three grounds as contained in paragraph 15 thereof, as follows:
At paragraphs 16 through to 814 of the petition, the petitioners catalogued the facts relied upon by them in support of the grounds of the petition. After pleading the procedural steps for the election as contained in the Manual for Election Officials, 2019 and the INEC Regulations and Guidelines, the petitioners averred that in all the wards and polling units being challenged in this petition, the respondents abandoned the procedural steps of the election and merely produced results, as no election known to law was conducted in the affected wards and polling units. They averred that the votes recorded by the 1st respondent during the Governorship election for Oyo State on the 9th of March, 2019, was mere allocation of figures in favor of the 2nd and 3rd respondents, as the 2nd respondent did not score the majority of the lawful votes cast at the election. The petitioners further pleaded that there was substantial non-compliance with the provisions of the Electoral Act, Manual for Election Officials and the Regulations and Guidelines in the form of non-accreditation, improper accreditation, over-voting, wrongful collation/computation of results in favour of the 2nd respondent, improper/inaccurate ballot accounting, irreconcilable entries as well as un-initialed alterations/cancellations/mutilations on the forms EC8A, which irregularity substantially affected the outcome of the election.
As detailed in the above stated paragraphs of the petition, the polling units and wards whose results are being challenged are from the following Local Government Areas of Oyo State:
The petitioners also alleged the disenfranchisement of some registered voters in some polling units as particularized in the petition.
The petitioners seek the under listed reliefs:
(I) That it may be determined that the 2nd Respondent was not duly elected or returned by the majority of lawful votes cast at the Oyo State Governorship election held on the 9th day of March 2019.
(ii) That it may be determined that the 1st Petitioner, who was the candidate of the 2nd Petitioner, scored the highest number of lawful votes cast at the election and satisfied the requirements of the Constitution of the Federal Republic of Nigeria, 1999, as amended and the Electoral Act, 2010 as amended.
(iii) That the 1st Petitioner be declared validly elected or returned, having scored the highest number of lawful votes cast at the Governorship election held on the 9th day of March, 2019.
IN THE ALTERNATIVE
(iv) That it may be determined that the Oyo State Governorship election held on the 9th day of March, 2019 be nullified for substantial non-compliance with the provisions of the Electoral Act, which non-compliance substantially affected the result of the election and in its place, make an order for a fresh election to be conducted.
Petitioners’ List of documents and List of 389 witnesses and their written depositions, excluding witnesses to be subpoenaed, were front loaded along with the petition.
In its reply, the 1st respondent denied the claim of the petitioners and maintained that the Oyo State Governorship election held on 9th March, 2019 was conducted in substantial compliance with the Electoral Act, and that the 2nd respondent was returned elected having polled majority of lawful votes and satisfied all the constitutional requirements for the said declaration. 1st respondent also denied that any registered voter was disenfranchised. The 1st respondent urged the Tribunal to dismiss the petition and declare that it substantially complied with the extant provisions of the Electoral Act, 2010 (as amended) during the conduct of the election in question. List of documents to be relied upon, together with the list of 390 witnesses and written depositions of 355 witnesses, were filed along with the 1st respondent’s reply.
The 2nd respondent incorporated in his reply to the petition, notice of preliminary objection to the competence of the petition and /or some paragraphs thereof. On the merit of the petitioners’ claim, the 2nd respondent pleaded that he scored majority of lawful votes cast in the Oyo State Governorship election held on 9th March, 2019 in addition to satisfying the constitutional requirement for election to the office of Governor. He denied the allegations of irregularities, malpractices and non-compliance with the provisions of the Electoral Act, Manual for Election Officials and Guidelines issued by the 1st respondent. He also denied the allegation of non-holding of election and disenfranchisement of voters. 2nd respondent urged the Tribunal to dismiss the petition and all the four reliefs claimed, either as principal or alternative, as same are speculative, unmeritorious and against the clear provisions of the Electoral Act.
List and copies of documents to be relied upon, List of 344 witnesses and their written depositions accompanied the 2nd respondent’s reply to the petition, excluding witnesses to be subpoenaed.
On its part, the 3rd respondent equally denied the claim of the petitioners and averred that the 2nd respondent scored majority of lawful votes cast at the election, which, according to it, was conducted in substantial compliance with the provisions of the Electoral Act, Manual for Election Officials, 2019 and Regulations and Guidelines. The 3rd respondent specifically denied the allegations of non-compliance in form of over-voting, improper accreditation, un-initialed alterations of result sheets, non-voting and disenfranchisement of voters. The Tribunal is urged to dismiss the petition as same is baseless, frivolous and lacking in merit. Filed along with the 3rd respondent’s reply is the List and copies of documents, List of 472 witnesses and the written statements on oath of those witnesses, excluding those proposed to be subpoenaed.
The petitioners filed replies to the replies of each of the respondents, thereby bringing the pleadings in this petition to a close.
On the application of the petitioners, pre-hearing information sheets were served on all the parties, who responded to same promptly. During the pre-hearing session, a total of 8 applications were filed and heard. Of this number, only one application was disposed of. Rulings in respect of the other 7 applications were reserved for final Judgment in view of the nature of the reliefs sought in these applications. The Tribunal also issued the Pre-hearing Conference Report which contained the ground rules for the hearing of the petition.
RULINGS:
We now proceed to deliver the seven reserved rulings in the order they were taken on the 15th May 2019 before venturing into the substantive issues formulated for the determination of this petition.
The first application for consideration is the 2nd respondent’s application dated and filed 6th May 2019. He seeks the following orders of the Tribunal:
1. AN ORDER of this Honourable Tribunal striking out paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9. 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66 and 67, (hereinafter referred to as the contested averments) contained under part B of the Petitioner’s Reply to the 2nd Respondent’s Reply to the petition dated and filed on 29th April, 2019 for being in violation of paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended).
1a. Consequential order, striking out the additional witness statement on Oath of APCSS dated and filed on 29th April, 2019, which accompanied “Petitioners’ Reply to 2nd Respondent’s Reply and response to objection to the petition.”
The application is brought on the grounds that:
In compliance with paragraph 7 (2) of the 1st Schedule to the Electoral Act, the applicant also filed a written address. In his written address, applicant raised a sole issue for determination:
“Whether the contested averments in the Petitioners Reply are in conformity with the express provisions of paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended).”
Learned senior counsel to the 2nd respondent/applicant, Mr. Eyitayo Jegede, SAN, adopted the applicant’s processes and noted that there is an embedded notice on the face of the motion that the 2nd applicant will rely on the petition and other processes of the petitioners, as filed. Applicant contended in the main that the paragraphs being contested were in some parts a repetition of the contents of their petition while in other parts contained new facts that tended to amend the contents of the petition. In arguing the sole issue, learned senior counsel for the 2nd respondent submitted that the contested averments in the petitioners’ Reply are in violation of the clear provision of paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended); and that no new facts arose from the 2nd respondent’s Reply that required the petitioners to plead the contested averments. He further submitted that the contested averments are simply a cloaked attempt by the petitioners to add to the content of the petition in respect of issues clearly dealt with in the petition. Referring to the case of APC vs. PDP & ORS (2015) LPELR – 24587 (SC), and Ogboru vs. Okowa (2016) 11 NWLR (pt. 1522) 84 SC @ 113-114 F-H; 144-145 A-G, 2nd respondent/applicant argued that it is settled law that a reply is only filed when it is necessary to answer new issues raised in the Statement of defence. In APC vs. PDP (Supra), the Supreme Court confirmed the position of the Court of Appeal on the contents of a Reply when it held that:
“The court below was right when it found as follows: “It is trite that the petitioner cannot introduce new fact not contained in the petition in his reply as in the instant case because as at the time of filing his petition, that fact is within his knowledge and if he did not adequately include it in his petition, the proper thing to do will be to amend his petition.” Per FABIYI, JSC. 82 D-F.
The 2nd respondent/applicant contended that election petition being sui generis, the content, purpose and nature of a Reply in an election petition is strictly regulated by the provisions of paragraph 16 of the 1st Schedule to the Electoral Act, 2010 (as amended). He submitted that the petitioners’ averment in paragraph 2 of part B pleading that votes credited to the 2nd respondent or as declared by the 1st respondent are unlawful and invalid is rather conclusive and urged that it be struck out. He further argued that paragraphs 8 – 36 are incompetent as no new issues of fact were raised by the 2nd respondent that requires a response.
The 2nd respondent noted that no witness depositions were made in respect of the allegations relating to the election petition in Olorunsogo, Ogo Oluwa, Iwajowa, Ibadan South West, Ori-ire and Irepo Local Government Areas in the petitioner’s petition; and that an additional witness statement on Oath made by the State Secretary of the All Progressive Congress trying to add witness deposition on Oath in those Local Governments is a tactic to amend or add to the contents of the petition. He argued that by the case of Ogboru vs. Okowa (Supra) @ 116 A-D, petitioners’ additional witness statement on oath is bound to be struck out, especially if the paragraphs that anchored it are struck out. It is further argued for the 2nd respondent/applicant that by paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010, the petitioners are not entitled to bring in prayers in their reply; and that these paragraphs of the petitioner’s Reply simply amount to prayers cloaked in the disguise of averments.
The 1st and 3rd respondents did not file any process in this application.
Petitioners/applicants responded to 2nd respondent’s motion on notice by filing a written address in opposition dated 9th May 2019 and filed on 10th May 2019. Learned senior counsel for the petitioners, Chief T.O. Ashaolu SAN, adopted their written address wherein they argued that they merely provided answers to fresh issues raised in the 2nd respondent’s Reply with respect to some noticeable infractions to wit: over-voting, improper ballot papers accounting, wrong entries etc., that marred the Governorship election of 9th March, 2019 held in Oyo State. The petitioners sought to distinguish the case of Emerhor vs. Okowa (2016) 11 NWLR (pt. 1522)84 where fresh issues were raised in the 2nd respondent’s Reply.
As a preliminary issue, the petitioners challenged the competence of this application on the ground that it violated the provisions of the Rules of the Federal High Court and the First Schedule to the Electoral Act, 2010 (as amended); the application having not been supported with an affidavit. They argued that the provisions of Paragraph 47 (1) & (2) of the First Schedule to the Electoral Act, 2010 (as amended) and Order 26 Rule 2 (1) and (3) of the Federal High Court Rules, mandate an applicant filing a Motion on Notice to support same with an affidavit. They argued that although the word “may” is used in the provisions of paragraph 47 (2) of the First Schedule to the Electoral Act, 2010 (as amended), it does not necessarily mean permissiveness. The case of Iyoho vs. Effiong (2007) 11 NWLR (Pt.1044) 31 @ 55 B is cited in support.
In the alternative, and, in the event that the challenge on the competence of the application is not successful, petitioners set for determination the issue whether “the 2nd respondent/applicant had made out a case to warrant the grant of reliefs 1, 1a and 2 of the application dated and filed 6th may, 2019”. In arguing this sole issue, learned counsel submitted that the petitioners’ Reply was necessitated by the 2nd respondent’s Reply having regards to averments therein. They argued that the 2nd respondent/applicant has not made out a case to warrant the striking out of the paragraphs complained of in the application. They argued further that the 2nd respondent, vide paragraphs 9, 24, 26, 28, 31, 32, 36, 46, 66, 69, 70, 72, 75, 77, 82,90, 96, 100, 102, 103, 109, 112, 113, 115, 117, 121, 133, 137, 140, 141, 145, 146, 151, 155, 157, 161, 173, 172, 174 and 223 of the Reply to the petition, for instance, raised new issues that:
Petitioners submitted that these new issues require response from them. They further argued that the 2nd respondent without more merely stated in his application that the petitioners’ Reply is incompetent on the premise that they added new facts, grounds and prayers tending to amend or add to the content of the petition; without demonstrating how. Petitioners therefore further submitted that the failure of the 2nd respondent to provide further particulars of fresh or rehashing of issues in the petition for the due consideration of the Tribunal means that the application is liable to be struck out.
The 2nd respondent filed a reply address on points of law against the petitioners’ address. 2nd respondent/applicant contended that the provisions of Order 26 Rule 2 (1) and (3) of the Federal High Court Rules heavily relied upon by the petitioners would not apply in the instant case. This is because, according to him, the provisions of the Federal High Court Rules would only apply to election petition where the Electoral Act, 2010 (as amended), fails to make provisions in its Rules or is silent regarding a given situation - Adesegun A. vs Biyi (2016) All FWLR (Pt.851) 1328 CA.
On the argument that the 2nd respondent raised new issues as enumerated under the said paragraph, 2nd respondent submitted that he did not raise new issues that will warrant the petitioners to file a Reply. He also cited paragraphs of the petitioners Reply to the 2nd respondent’s Reply which sought to enlarge the scope of the petition by bringing new facts not raised by the 2nd respondent, an attempt which violates paragraph 16 (1) (a) (b) of the First Schedule to the Electoral Act, 2010 (as amended). The Tribunal is referred to paragraphs 13, 14, 48 of the petitioners’ Reply where the petitioners raised new issues with respect to “non-stamping, signing and dating of ballot papers” by the Presiding Officer in Oyo East, Kajola and Ibarapa North Local Government Areas respectively, which was not contained in their petition.
Decision:
We have considered the processes filed by both parties to this application and the arguments of learned senior counsel as reviewed above. Having considered the issues set out by both parties, we adopt, for the purpose of deciding this application, the issue as set down for determination by the petitioners/applicants, to wit;
Whether the 2nd Respondent/Applicant had made out a case to warrant the grant of the reliefs sought in this application.
As a preliminary issue, petitioners challenged the competence of this application on the ground that it violated the provisions of the Rules of the Federal High Court and the First Schedule to the Electoral Act, 2010 (as amended), the 2nd respondent’s application having not been supported with an affidavit. They argued that by the provisions of Paragraph 47 (1) & (2) of the First Schedule to the Electoral Act, 2010 (as amended) and Order 26 Rules 2 (1) and (3) of the Federal High Court Rules, an Applicant filing a Motion on Notice is mandated to support same with an affidavit. The provisions of the referred statutes are reproduced for ease of reference:
ORDER 26 RULE 2(1)(3) FHCR:
RULES 2 (1):
Where by these rules an application is authorized to be made to the Court or to a Judge in chambers, such application may be made by motion
RULES 2 (3):
Every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely and such motion shall be filed along with a written address.
PARAGRAPH 47 (2):
Where by these rules any application is authorized to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent.
The reproduced provisions of statute appear quite clear to us. If the petitioners/respondents had made reference to the cited Rules of the Federal High Court, as applicable to Election Tribunals, then the argument would have succeeded on the strength of paragraph 54 of the 1st Schedule to the Electoral Act 2010. However, the 2nd respondent/applicant referred to paragraph 47(2) of the 1st Schedule to the Electoral Act which specifically provided for ‘Motions and Applications’, and which made detailed provisions regulating motions and applications before an election tribunal. Petitioners further argued that the use of the word “may”, by paragraph 47 does not necessarily mean it is permissible; and that the provisions of the Federal High Court Rules is made applicable to this Tribunal by paragraph 54 of the 1st Schedule to the Electoral Act.
Paragraph 54 of the 1st Schedule to the Electoral Act provides:
Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.
First, the clear terms of paragraph 54 of the 1st Schedule to the Electoral Act subordinates the application of the practice and procedure of the Federal High Court to the express provisions of the Electoral Act. Therefore, the Electoral Act having made provisions for ‘motions and applications’, the provisions of the Federal High Court Rules will not apply in relation to this application before us. The petitioners/respondents had referred to the case of Akanbi vs. Rafiu Adejare Bello & Ors (2010) LPELR-3676 as authority on the application of the Federal High Court Rules before election Tribunals. However, on a closer perusal of the above cited case, we found that that decision referred to the application of a Practice Direction which contradicted provisions of the Electoral Act and the Rules of the Federal High Court. That case did not consider a situation where the Electoral Act expressly made provision for a situation and reference is sought to be made to the Federal High Court Rules. The case held in part that:
The Practice Direction was made to be utilized alongside the Electoral Act and the Federal High Court Rules which guides the procedure to be followed in determining Election Petition. It is meant to be obeyed but not to stifle justice.
The text of paragraph 54 being thus self-explanatory, and the case of Akanbi vs. Rafiu Adejare Bello (supra) being inapplicable, we therefore do not consider Order 26 Rules 2 and 3 of the FHCR cited and relied on by the respondents to this application in challenging the competence of this application. Of great help in the determination of this preliminary issue is the decision of the Court of Appeal in Adesegun A. vs. Biyi (2016) All FWLR (Pt.851) 1328 CA per Daniel Kalio JCA @ 1353-1356 C-A (cited by the 2nd respondent) as it deals with precisely the issue under consideration. The Court in interpreting paragraph 54 of the 1st Schedule to the Electoral Act, 2010 (as amended) said:
Clearly, the above provision has made the Federal High Court Rules subject to the express provisions of the Electoral Act, 2010 (as amended). The phrase “subject to” was judicially interpreted in the case of Ezenwosu vs. Ngonadi (1992) 3 NWLR (pt. 228) 154. In that case, the Supreme Court stated thus:
“…the phrase “subject to“, is a usual provision used to subject or subsume the provision of a subject statute, be it substantive or adjectival, to the provisions of a master enactment”.
From the above explanation of the phrase and relating it to the issue under consideration, the Electoral Act is the “master enactment”, while the Federal High Court (Civil Procedure) Rules is the “subject statute”. The subject does not rule over the master. It is the other way round. The next question is this:
Is there an express provision in the Electoral Act that deals with applications by way of motions? The answer is yes. The provision is to be found in paragraph 47 (2) of the 1st Schedule to the Electoral Act, 2010 (as amended)……………..
A perspicacious look at the above provision clearly reveals the mind of the legislature. Whereas it states that any application to the tribunal “shall” be made by motion, it was quick to state that such motion “may” be supported by an affidavit. The legislature was very clear about its intention. It wanted that applications to the tribunal to be by motion by using the word of command “shall” but was liberal about whether such a motion should be accompanied by an affidavit by using the word “may” which is permissive.
In other words, the attachment of a supporting affidavit to a motion is not mandatory in an application before an election tribunal or a Court hearing an electoral matter………….
The Tribunal was wrong to strike out the Motion on Notice dated 13th May, 2015 on the ground that it was not supported by an affidavit.
Whereas several judicial pronouncements have been made by the Courts on the import of the use of the word ‘may’, the above decision is squarely on the purport of ‘may’ in paragraph 47(2) of the 1st schedule to the Electoral Act. The same use of the word ‘may’ in paragraph 47 (4) of the First Schedule to Electoral Act and the tone of its usage also suggest the permissive nature of its use. The paragraph states that:
Where a Respondent to the motion intends to oppose the application, he shall within 7 days of the service on him of such application file his Written Address, any ‘may’ accompany it with a counter-affidavit”.
Prior to the case of Adesegun A. vs. Biyi (supra), the Court in Davies v. Mendes (2007) All FWLR (pt. 348) 883 @ 905 C-G founded on the Electoral Act held that:
The operative word in Section 23 is MAY, the word ‘MAY’ in a statute may be interpreted as imperative depending on the context in which it is used. In Section 23 of the Electoral Act, the statute has to be read as a whole and not disjunctively in order to get the intention of the legislature. If there is a sanction for breach of an obligation created in a statute then the obligation is mandatory and absolute. But where the Court cannot interfere to compel its performance or indeed punish the breach of the duty, the act is directory. Since there is no provision for sanction for the breach of section 23 of the Act, the context in which the word MAY is used therein is permissive, directing or discretionary and not mandatory……….”;
See also Uwak & Ors vs. Sampson & Ors (2016) LPELR-41216(CA).
We therefore find that the purport of paragraph 47(2) is not to make it mandatory for motions and applications before election petition Tribunal to be accompanied by an affidavit. We accordingly discountenance petitioners/respondents’ argument that the application is incompetent. We find the application to be competent; and we so hold.
In coming to this conclusion, we are not oblivious of other decisions where the Courts have attributed an element of mandatoriness to the word ‘may’ where used in a statute. See Cole vs. Jibunoh & ORS (2016) LPELR-40662 (SC), AG Lagos State vs. Keita (2016) LPELR-40163 (CA). In PDP vs. Sherrif & Ors (2017) LPELR-42736 (SC), it was held per Rhodes-Vivour, JSC that:
The law is long settled that "may" is not always "may". It may sometimes be equivalent to "shall", see Ifezue vs. Mbadugha (1984) 1 SCNLR p.427."
This by itself suggests that in certain circumstances, ‘may’ is ‘may’ and not shall. In the context of its use in the provisions under consideration, it is our view, in line with the previous judicial pronouncements of the said provisions of statute, that this ‘may’ is indeed ‘may’. Even in the case of PDP vs. Sheriff & Ors (supra) the Supreme Court held that the word was intended to be discretionary. The Supreme Court held:
Two months’ notice of vote of confidence motion shall be given and circulated only when the vote of confidence is intended to be carried. May in the circumstance is directory and not mandatory. A National officer can be removed without a vote of confidence. (Emphasis ours)
We now turn to the merits of this application. It seeks in the main, for the striking out of paragraphs 1 to 67 contained under part B of the petitioners’ Reply to the 2nd respondent’s Reply to the petition dated and filed on 29th April, 2019 for being in violation of paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended). This represents the entire paragraphs of the petitioners’ Reply to the 2nd respondent’s Reply to the petition. Parties are agreed on the purport and import of the said paragraph 16 (1) (a); however, whereas 2nd respondent contended that the stated paragraphs of the petitioners’ Reply violate paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, the petitioners contest this position. Paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended) provides as follows:
16 (1) If a person in his reply to the Election Petition raises new issues of facts in defence of his case which petition has not dealt with, the petitioner shall be entitled to file in the registry, within five days from the receipt of the respondent’ reply, a petitioner’s reply in answer to the new issues of fact, so however that:-
(a) The petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him …
On the meaning and nature of a reply brief, the Supreme Court had this to say in the case of Awusa vs. Nigerian Army (2018) LPELR-44377 (SC):
"A reply brief is filed when issues of law or arguments raised in the Respondent's brief call for a reply; it deals with new points. Thus, a reply brief is limited to finding answers to questions raised in the Respondent's brief, which the Appellant has not addressed or dealt with in the main brief - see Ikine & Ors v. Edjerode & Ors (2001) LPELR-1479(SC) and Mozie v. Mbamalu (2006) 15 NWLR (pt. 1003) 466 SC, wherein Tobi, JSC, aptly observed as follows -
A reply brief, as the name implies, is a reply to the Respondent's brief. A reply brief is filed when an issue of law or arguments raised in the Respondent's brief call for a reply. A reply brief should deal with only new points arising from the Respondent's brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the Appellant's brief." Per AUGIE, JSC. 24-25 D-B
The provisions of paragraphs 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended), are clear and conclusive, that in an election petition, the petitioners would be entitled to file a Reply to the 2nd respondent’s Reply, as in this case, if the following conditions exist contemporaneously:
(i) The 2nd respondent in his Reply raised new issues of fact.
(ii) The new issues of facts raised by the 2nd respondent have been raised in defence of its case.
(iii) The issues raised by the 2nd respondent are issues which the petitioners have not dealt with.
The Petitioner shall not however:
(iv) Be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition.
The 2nd respondent challenged paragraphs 2-7 of the petitioners’ Reply on the ground that no new issues of fact were raised in the 2nd respondent’s Reply that necessitated a response. We have considered paragraphs 2-7 of the petitioners’ Reply which purport to respond to paragraphs 5-13 of 2nd respondent’s Reply; and find indeed that no new issues of fact were raised in the 2nd respondent’s Reply that necessitated a response. We find that what the 2nd respondent did at the named relevant paragraphs of his Reply was to merely deny the allegations of the petitioners. We do not see the need for the petitioners to further Reply, only to deny the denial of the 2nd respondent. For instance, in paragraph 2 of the petitioners’ Reply to the 2nd respondent’s Reply, it is stated:
The Petitioners state in response to paragraph 5 of the 2nd Respondent’s Reply to the petition that the 2nd Respondent did not score majority of lawful votes in the Oyo State Governorship election as the purported votes credited to the 2nd Respondent and/or as declared by the 1st Respondent are unlawful and invalid votes.
The referred paragraph 5 of 2nd respondent’s Reply states:
In reaction to paragraphs 13 and 14 of the petition, 2nd Respondent shall contend that he scored majority of lawful votes cast in the Oyo State Governorship election held on the 9th day of March 2019 in addition to scoring more than a quarter of the votes cast in at least two thirds of the thirty-three Local Government Areas of Oyo State. The lawful votes of 2nd Respondent in the Local Governments that make up Oyo State totals 515,621 lawful votes, and reliance shall be placed on the final result of the Oyo State Governorship Election conducted by 1st Respondent on 9th March, 2019.
We therefore find that the response of the petitioners via their Reply stated above violates section 16 (1) (a) of the 1st Schedule to the Electoral Act 2010 (as amended), as the 2nd respondent had raised no new issues; to which the petitioners have not dealt with in their petition already. We see paragraph 5 of the 2nd respondent’s Reply to be a direct response to petitioners’ paragraphs 13 and 14 of the petition, where they stated that:
Your Petitioners further aver that the Petitioners scored 357,982 (Three Hundred and Fifty-Seven Thousand, Nine Hundred and Eighty-Two) votes according to the 1st Respondent, while the 2nd and 3rd Respondents were credited with 515,062(SIC) (Five Hundred and Fifteen Thousand and Sixty-Two) votes by the 1st Respondent.
It is our view that, at the Reply of the 2nd respondent, issues were properly joined, and there was no need for any further reply, by the petitioners. It is unnecessary for a Plaintiff to file a Reply if his only intention is to deny the allegations that the Defendant may have made in his statement of defence. See Nkpa vs. Champion Newspapers Ltd & Anor (2016) LPELR-40063 (CA). It is also our view, as contended by the 2nd respondent in this application, that the challenged paragraph 2 of the petitioners’ Reply draws a conclusion.
Again, a consideration of paragraph 6 of the 2nd petitioners Reply shows that it is a direct denial of paragraph 14 of the petition, thus requiring no further reply as done via paragraph 3 of the petitioners’ Reply. Paragraphs 1 and 4 restate petitioners already stated positions in the petition. Further, reference to petitioners Reply, paragraph 5 states that:
In response to paragraph 8 and 9 of the 2nd Respondent’s reply to the petition, the Petitioners state that the election of the Governorship election held in Oyo State on the 9th March, 2019 are laced with infraction(s), and in breach of the provisions of the Electoral Act, 2010 and the 1st Respondent manual and its guidelines for the conduct of election.
This is a repetition of the last paragraph of paragraph 16 of Petitioners’ petition where they stated that:
… and further state that the polling units being challenged in this petition are the polling units where the election either did not hold at all and results were returned or were held in breach of the provisions of the Electoral Act 2010 (as amended), the Manual for Election Officials, 2019 and the Guidelines issued by the 1st Respondent for the conduct of the elections.
As a result, we find that the entire paragraphs 1 – 7 of the petitioners’ Reply violates the provision of paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act 2010, (as amended) and are hereby discountenanced.
With respect to paragraphs 8 – 67 contended by the 2nd respondent, we find that they respond to no new issues, and actually do seek to restate petitioners’ case. For instance, 2nd respondent in his Reply on allegations relating to Afijio Local Government at paragraphs 17 – 21 merely denied petitioners’ averments. The petitioners then in paragraph 8 restated their averment as originally stated in the petition. Concerning Egbeda Local Government petitioners at paragraph 9 of their Reply state that:
In reply to the averments of the 2nd Respondent’s Reply contained in paragraphs 22 – 36 in relation to Egbeda Local Government, the petitioners shall rely on their averments in the Petition and further state as follows:
The above re-produced paragraph represents a common pattern in the Reply of the petitioners to the 2nd respondent’s Reply. In our view, it possesses exactly the three characters that a Reply should not have. It responds to no new issues raised by the 2nd respondent; it rehashes petitioners’ case; and, merely seeks to deny 2nd respondent’s defence. In addition, we find that paragraphs 13, 14, 48 of the petitioners’ Reply in addition to being a re-hash of the petitioners already made out case, the petitioners in a most imperceptible manner, introduced new issues with respect to ‘non-stamping, signing and dating of ballot papers by the presiding officers in Oyo East, Kajola and Ibarapa North Local Government Areas respectively, which was not canvassed in their petition nor was it introduced by the 2nd respondent’s Reply.
On the petitioners’ argument that they responded to fresh facts introduced in 2nd respondent’s Reply, petitioners failed to indicate the areas and new facts so introduced. On our part, we found no new facts introduced by the 2nd respondent’s Reply to which petitioners’ Reply was a response to.
We find therefore that the petitioners’ Reply to the 2nd respondent’s Reply to the petition dated and filed on 29th April, 2019 violates paragraph 16 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended). Relief 1 of the application therefore succeeds.
Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66 and 67, contained under part B of the petitioner’s Reply to the 2nd respondent’s Reply to the petition are hereby struck out. Relief 1a equally succeeds as the additional witness statement on oath of APCSS dated and filed on 29th April, 2019, which accompanied petitioners’ Reply to 2nd respondent’s Reply and response to objection to the petition cannot stand by itself. The said additional statement of APCSS is hereby struck out.
The second application taken on the 15th of May 2019 and which Ruling was reserved till final judgment is dated and filed on 6th May 2016. In it, the 2nd respondent/applicant prays for the following reliefs:
1. AN ORDER of court striking out paragraphs 36, 37, 38, 39, 41, 43, 46, 53, 54, 55, 62, 63, 65, 70, 93, 95, 96, 97, 98, 100, 101, 103, 105, 107, 135, 161, 223, 244, 248, 250, 253, 258, 261, 263, 272, 276, 280, 281, 282, 283, 284, 286, 288, 291, 293, 295, 296, 305, 311, 314, 317, 319, 337, 339, 343, 344, 350, 353, 358,361, 362, 364, 369, 376, 377, 378, 381, 383, 385, 386, 387, 388, 389, 390, 391, 392, 394, 396, 399, 402, 403, 405, 412, 442, 448, 450, 452, 454, 459, 481, 494, 495, 609, 620, 640, 725, 728, 739, 740, 792, 793, 797, 798, 799, 800, 803, 804, and 805 of the petition and Wards listed under Surulere Local Government Area at pages 162 – 168 of the petition.
2. A consequential and further order striking out the entire petition.
The application is brought on the grounds that:
Learned senior counsel to the 2nd respondent/applicant, Mr. Eyitayo Jegede, SAN, once again adopted the applicant’s processes. In his written address in support of the application, 2nd respondent/applicant set out two issues for determination, to wit:
In arguing the first issue, learned senior counsel stated that the petitioners built their case essentially on terminologies such as irreconcilable entries, improper or inaccurate ballot accounting’, alterations, un-initialed alterations; without disclosing details, specifics, and/or figures that made up what petitioners refer to as irreconcilable entries. That, there was no disclosure whether the alterations referred, is in the main, in the date, or the records of the ballot papers supplied, or the number of accredited voters, or the votes credited to any of the candidates, or some other entries in the form. The applicant argued that the terminologies referred to above and as contained in the paragraphs of the petition are vague, nebulous, lacking in details, leaves too much room for speculation, open to conjecture, and do not satisfy the principle of good pleadings. He argued that vague and imprecise averments that do not meet the degree of clarity required under paragraph 4 (1) (d) of the 1st Schedule to the Electoral Act 2010, (as amended) and the provisions of Order 13 Rules 4 (i) (ii) (iv), 5 and 6 of the Federal High Court (Civil Procedure) Rules, 2009 are liable to be struck out. Applicant relied on the cases of Belgore vs. Ahmed (2012) 3 SCNJ 529 @ 563; Abubakar vs. Yar’adua (2008) 19 NWLR (Pt. 1120) 1 @ 147 paras C, D, E, F and G. Uzodinma vs. Udenwa (2004) 1 NWLR (Pt. 854) 303 @ 345 paras E, F and G where the Courts stated the imperatives of having precise and clear averments in pleadings.
Mr. Jegede, SAN, noted by example the averments in paragraphs 36 and 37 of the petition as follows:
(36) That the entries on the Form EC8A are irreconcilable and caught by inaccurate ballot accounting.
(37) That the entries on the Form EC8A are irreconcilable and caught by inaccurate ballot accounting.
He contended that the above paragraphs were repeated and are replica of paragraphs 39, 41 – 70, 72 – 83, 85, 86, 93, and 95 – 98. He questions that the points of the alterations were not indicated, leaving the respondents in the realm of speculation as to what the alterations were. Applicant argued that the implication of this is that having not supplied the details of the allegations contained, the petitioners are not allowed to lead any evidence on them. He referred to Oyekola vs. Ajibade (2004) 17 NWLR (Pt. 902) 356 @ 385; and Akaninwo vs. Nsirim (2008) WRN (Vol.20) 99 @109 where the Supreme Court held that:
The law expects that pleadings should be sufficient, comprehensive and accurate; suffice it to say that all parties are bound by the pleadings.
The 2nd respondent/applicant also argued that from paragraphs 797 – 800, the petitioners were not specific in their allegation, and no number of votes was challenged or alleged to have been affected and that this violates Order 13 Rules 4, 5 and 6 of the FHCR 2009 – Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1 @ 200-201 is cited. Applicant further referred to the case of PDP vs. INEC (2012) LPELR 9724 SC, where the Supreme Court reiterated this position as follows:
On whether the affected paragraphs were rightly struck out, I have read the affected paragraphs and found that they relate to allegations of non-voting in several polling points, disruption of election, non-conclusion of election, thumb-printing of ballot papers, falsification of election results, wide spread disruption, irregularities and malpractice without providing particulars or the polling units where the alleged malpractices took place. The lower court was therefore right where it held as follows:
"The paragraphs above in my view are too generic, vague and lacking in any particulars as they are not tied specifically to any particular polling unit or particular number of people who were alleged to have been disenfranchised. The fact that a party can file further particulars or deny in a reply the averment in the pleadings must not be general it must be specific as to facts. It is settled law that a petitioner has obligation to plead particulars of fraud or falsification without which the allegation is a non-starter."
I have nothing to add to this statement of law as advanced above, and I adopted it as mine." Per MUNTAKA-COOMASSIE, JSC.
Again, the 1st and 3rd respondents did not file any process in this application.
Petitioners/respondents responded to this motion on notice by filing a written address in opposition dated 9th May 2019 and filed 10th May 2019. Learned senior counsel for the petitioners, Chief T.O. Ashaolu SAN, adopted the petitioners’ written address. Petitioners challenged, as a threshold issue, the competence of the application; it not having been supported with an affidavit. The terms of the arguments of the petitioners are exactly as that raised in the 1st application, already decided. There is therefore no need to delve into it further. The Ruling on the issue is applied mutatis mutandis to this application. We hold, on the same grounds, that this application is competent; and proceed to consider the arguments on the merits of the application.
The Petitioners made an issue of the timing of the application and that it seeks to terminate the life of the petitioners’ petition in-limine during pre-hearing session by its prayer No.2 for:
2. A consequential and further order striking out the entire petition
Petitioners’ asserted that by the above prayer, the 2nd Respondent seek to hear its preliminary objection and determine same in-limine during pre-hearing session as opposed to being heard and/or taken along with the petition pursuant to the provisions of Paragraph 12 (5) of the First Schedule to the electoral Act, 2010 (as amended) which clearly and unequivocally provides that a respondent who has an objection to the hearing of a petition shall file his reply and state the objection therein and the objection shall be heard along with the substantive petition. We do not find the need to determine this issue, in any way, since the application was already reserved till final judgment. To do otherwise will only be tantamount to engaging in academic exercise; which the Courts are discouraged from pursuing. See Unity Bank Plc. vs. Bouari (2008) 7 NWLR (Pt.1086) 372 at 409, para. D; 409-410, paras. H-A (SC), Amah vs. Nwankwo (2008) All FWLR (Pt. 411) 879 at P. 895, paras. A - B (CA) and Agbaje vs. INEC & Ors (2015) LPELR-25651(CA).
On the merit of the application, petitioners submitted that none of the paragraphs of the petition, particularly, as set out by the 2nd respondent’s Reply to the petition and/or this application is/are vague, nebulous, generic, imprecise or lacking in specific or details and that they disclose reasonable cause of action against the 2nd respondent. In addition, petitioners state that the 2nd respondent in his answer to the questions contained in the Pre-Hearing Information Sheet, particularly question 3 thereto, stated:
“Q: Are further and better particulars of any petition or reply required?
A: The 2nd respondent does not require further particulars in respect of the pleadings of the petitioners.
It is contended for the petitioners that the fact that the 2nd respondent was able to respond to each and every paragraph of the petition without asking for further and better particulars as provided in paragraph 17 of the First Schedule to the Electoral Act, 2010 (as amended) is suggestive that the petitioners’ petition is not incomprehensible. Learned senior counsel for the petitioners submitted that paragraphs 16 to 814 contained facts and details in support of the grounds of the petition as adumbrated in paragraph 15 thereof. Petitioners argued that the cases of Buhari vs. Obasanjo, PDP vs. INEC cited by the 2nd respondent are not apposite to this petition, as, for instance in PDP vs. INEC (supra) the apex Court affirmed the striking out of some paragraphs in that petition because they were not tied to specific Polling Units, whereas the 2nd respondent’s complaint in this application is that no number of votes was challenged or alleged to have been affected. They argued that going through paragraphs 797 to 800 of the petition, the petitioners listed certain numbers of Polling Units and Wards in Ori-ire Local Government and the infractions committed by the officials of the 1st respondent; and that these and other paragraphs of the petition objected to by the 2nd respondent did not offend any provisions of law.
On non-disclosure of reasonable cause of action, petitioners contended that on the totality of the relevant averments in the petition, it indeed discloses a reasonable cause of action.
In Reply on Point of Law, the 2nd respondent/applicant submitted that it is the responsibility of the petitioners as provided under paragraph 4 (1) (d) of the 1st Schedule to the Electoral Act, 2010 (as amended) to state CLEARLY the facts of the election petition; and not for the 2nd respondent to ask for particulars.
Decision:
We have considered the processes filed by both parties to this application; and the arguments of counsel. It is our conviction that issue one formulated by the applicant is appropriate. We therefore adopt the said issue for determination:
Whether the paragraphs in the petition as listed in the motion paper are not filed in violation of the provisions of paragraphs 4 (1) (d) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended) and are not offensive against the rules of pleadings and therefore liable to be struck out.
To determine if the stated paragraphs violate paragraphs 4 (1) (d) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended), we reproduce the said paragraph for the sake of clarity. It provides that:
4. (1) An election petition under this Act shall-
(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.
(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.
As shown above, it requires that the fact of the petition, and the ground(s) on which the petition is based and the relief sought by the petitioner, be stated clearly. It is the 2nd respondent/applicant’s contention that the stated paragraphs of the petition are vague, imprecise and do not disclose any cause of action (and as more specifically stated on the grounds of the application already reproduced).
We have taken time to consider each of the listed paragraphs to ascertain whether they are vague, imprecise and without specificity or details; and not cognizable as grounds or facts to challenge election or votes of the 2nd respondent. In addition, we considered the paragraphs not challenged in this application, to get a holistic and composite appreciation of the entire petition and its purport. In doing this, we found that, for instance, paragraphs 36, 37, 38, 39, 41, 43 and 46 relate to Afijio Local Government, and that isolating and reading those paragraphs by themselves will make them appear vague, imprecise and without specificity or details; but when paragraph 33 which is the very first paragraph for Afijio Local Government is read, as it logically should, the purport of the averments in paragraphs 36, 37, 38, 39, 41, 43 and 46 become clear and suggestive of a cause of action. Paragraph 33 avers that:
33. Your Petitioners aver that there are 10 Electoral wards making up Afijio Local Government Area of Oyo State and the election in the identified wards and polling units hereunder were characterised and bedevilled with substantial non-compliance in the nature of lack of accreditation/improper accreditation, over-voting and specifically, the number of voters accredited are less than the total votes cast; the Ballot Accounting not correctly done and the results of the affected polling units in the Wards should not be reckoned with, but the results were declared in spite of the apparent substantial non-compliance, the primary results on the forms EC8A were erroneously computed on the Forms EC8B and Forms EC8C in favour of the 2nd and 3rd Respondents. The non-compliance complained of in the various polling units and wards of the local government substantially affected the overall result in the local government.
Paragraphs 36, 37, 38, 39, 41, 43 and 46 following paragraph 33 then find bearing, precision and specificity. Without paragraph 33, the above paragraphs will appear to be hanging on nothing. The general rule of interpretation of document is that the document or documents must be read as a whole and not parts in isolation and that the different parts of the document must be interpreted in the light of the whole document and an effort made to achieve harmony amongst its different parts. See I.I. ERIGBUEM & CO. LTD v. UBA PLC (2018) LPELR-44770 (CA); ISA v. ALHAJI SANI ADAMU TRADER (2016) LPELR-41311 (CA). If that be so, we find that the above paragraphs do not violate paragraphs 4 (1) (d) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended).
This trend is followed for all the other Local Government Areas where the first paragraph captures the cause, and then followed by listed wards and units. See also the averment in paragraph 135 sought to be struck out:
Your Petitioners aver that the number of accredited voters from the polling unit as certified by INEC and contained in form EC8A obtained therefrom by the Petitioners herein which is 521 exceeds the number of accredited voters as contained in the Smart Card Reader Report which is 520. Consequently, the entire result of the polling unit is null and void including the 34 votes credited to the APC and 126 votes credited to PDP.
We find the above paragraph clear and precise, and what would be required further is evidence in proof of the assertions made therein. This is again the trend from paragraphs 135 – 454 with varying issues.
What is more, in citing examples of the offensive averments, the applicants reproduced paragraphs 36 and 37, but only in part as follows:
(36) That the entries on the Form EC8A are irreconcilable and caught by inaaccurate ballot accounting.
(37) That the entries on the Form EC8A are irreconcilable and caught by inaccurate ballot accounting.
If the omitted second sentence of that paragraph is reproduced, it may not be so vague and offensive. The remaining sentence states:
(36) That the alterations made on form EC8A were not initialled according to the Regulations and Guidelines contained in Election Manual 2019 used for this election. Owing to this non-compliance, scores credited to the APC (109) and PDP (261) ought to be cancelled.
(37) That the alterations made on form EC8A were not initialled according to the Regulations and Guidelines contained in Election Manual 2019 used for this election. Owing to this non-compliance, scores credited to the APC (93) and PDP (230) ought to be cancelled.
As noted by the applicant himself, the above paragraphs were repeated and are replica of the following paragraphs 39, 41, 43, 46 50 – 70, 72 – 83, 85, 86, 93 and 95 – 98. If that is so, and we find that it is so, then all the above listed paragraphs do not offend paragraph 4(1) (d) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended).
As for paragraphs 797 – 800 where the applicant specifically alleged that the petitioners were not specific in their allegations and no number of votes was challenged or alleged to have been affected, we find, upon a close consideration of the said paragraphs that 2nd respondent’s ground of challenge is tantamount to asking for evidence in the pleadings.
The petitioners had stated in part that:
(797) The Petitioners state that in the respective wards and polling units listed hereunder, the ballot papers used for the conduct of the election were either not signed, stamped and dated by the designated Presiding Officer(s) and ad hoc staff of the 1st Respondent, contrary to the provisions of the Electoral Act 2010 (as amended) and the Manual for Election Officials 2019 and the Guidelines for the conduct of the Election 2019.
(798) Similarly, the number of accredited voters in the under-listed polling units were either more than the number of voters accredited in the polling units which led to massive over voting in the under listed polling units of these wards.
The polling units were subsequently listed. We find no deficiency in the stated paragraphs, and thus sustain them.
It is not feasible to reproduce and analyse in this ruling, the various paragraphs and their import and purport. However, having gone through all the averments, it is only with respect to paragraphs 459, 481, 494, 495 and 729 that we found vagueness and imprecision. There is no linkage between these paragraphs and the paragraphs following them. For example, paragraph 459 states:
Your Petitioners state that in the many of the Wards and polling units of OLUYOLE local government area, there (sic) cases of no accreditation, rampant and indiscriminate allotment of votes, inflation of votes entered into form E8C at the ward level, total votes cast exceeded accredited voters. The results were collated and declared in favour of Peoples Democratic Party.
The other paragraphs listed after paragraph 459 are replicas of paragraph 459. We find that these paragraphs are vague and imprecise, not being linked to any wards and polling units of the named Local Government Areas. We therefore discountenance them.
In conclusion, and with respect to this application, we find that the challenged paragraphs, with the exception of paragraphs 459, 481,494, 495 and 729 do not violate provisions of paragraphs 4(1) (d) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended). In the circumstance, the listed paragraphs 459, 481,494, 495 and 729 of the petition are hereby struck out.
The effect is that the petition is not liable to be struck out, subject only to the above struck out paragraphs.
The third application taken on the 15th of May 2019 is dated and filed on 7th May 2019. It is brought by 2nd respondent and challenges the competence of the witnesses’ statements on oath in support of the petition. It prays the Tribunal to strike out all the witnesses’ statements on Oath that contained illiterate jurat, the same being defective, improper and not in compliance with the extant laws. The grounds of the objection are that:
The affected witnesses’ statements on oath are found at pages 754 – 763, 766 – 870, 872 – 1382, 1448 - 1575, 1590 – 1683, 1686 – 1691, 1694 – 1762, and 1781 – 1870. Learned silk, for the 2nd respondent in moving the application adopted the 2nd respondent’s written address and reply on points of law. In their argument in support of the application, learned counsel for 2nd respondent set alternative issues for determination, to wit:
Whether the written witnesses’ statements on oath as listed on the Motion paper, are in compliance with the Evidence Act, Oath Act and the Illiterate Protection Act, having not shown proof of the primary language of the witnesses and for failure to affix thump impression of the witnesses.
OR
If the Tribunal agrees with us on issue one, whether the Petition is not liable to be dismissed for non-compliance with the mandatory provision of Paragraph 4(5)(b) and Paragraph 6 of the 1st Schedule of the Electoral Act, 2010 as amended.
Counsel argued the two issues together in view of their interrelated nature. He submitted that the depositions in issue are made in a language different from the language by which they are now presented to the Tribunal. He noted that many of the witnesses have their depositions in English, and they have illiterate jurat on them which presupposes that they were not made in English but Yoruba Language. He argued that it begged the following questions:
He submitted that the above queries become very germane, when it is taken into consideration that the essence of the Illiterate Protection Law or Act is to protect the illiterate who gave the testimony and queried how the witness would be protected when the original version of his testimony is not before the Tribunal; and how the Tribunal would be able to confirm the veracity of the testimonies when the original version is not before it. 2nd respondent referred to the Supreme Court decision in Markus Natina Gundiri & Anor vs. Rear Admiral M.H.Nyako & 6 ORS (2014) 2 NWLR (PT.1391) 211@ 244 C where an illiterate jurat without the Hausa translation was rejected by the Court. He submitted that the failure of the petitioners to accompany the listed depositions with the original versions, being the Yoruba language in which they were primarily made is fatal and makes the listed depositions to be incurably defective, thus robbing this Tribunal of jurisdiction to entertain the petition.
Learned silk for the 2nd respondent further contended that the petition should be dismissed because, if all the listed depositions, being ninety per cent of all the depositions filed in support of the petition, are struck out, the petition will substantially be without depositions/evidence to sustain it; and it will be a case of pleading without evidence. In addition, he argued that by the provisions of Paragraphs 4 (5) (b) and 6 of the First Schedule to the Electoral Act 2010 (as amended), a petitioner is mandatorily required to accompany the petition with valid written statements on oath. He further submitted that the petitioners having failed to accompany the petition with valid written statements on oath by not bringing forth the "Yoruba language" version of the witness statement, the petition is without the requisite valid written statement on oath to support it. On this, he referred to the case of Slverster Chuma Chukwuma vs. Anthony Ezechi Nwoye & ors (2009) LPELR-4997, where the Court of Appeal held that:
... But most importantly, there was not a single written statement of witnesses on oath as required by the Rules and the Law. This cannot be waived.
… After the witnesses; statements were struck out, there was nothing to satisfy the requirement of the rules.
1st and 3rd respondents did not file any process in this application.
In response to this motion, the petitioners filed a written address in opposition dated and filed on 10th May 2019. Learned senior counsel for the petitioners, Dr. Hassan M. Liman, SAN, adopted the petitioners’ processes and further argued, in adumbration, that at this stage of the proceedings the 2nd respondent cannot say whether or not the witnesses understand English language or Yoruba language. Petitioners, in their address set two issues for determination:
On issue one, petitioners submitted that their witnesses’ statements on oath listed by the 2nd respondent in this application are not defective, improper, and were filed in full compliance with the provisions of paragraph 4 (5) (b) of the Frist Schedule to the Electoral Act (as amended) with the attachments of witnesses’ statements on oath to the petition. They noted that the major complaint or grouse of the 2nd respondent about the statements on oath of the petitioners’ witnesses is that the statements on oath have illiterate jurats which were translated from English language which is the official language of the Tribunal to Yoruba language and that the Yoruba version of all the statements on oath were not attached to the petition. On the 2nd respondent’s reliance on the case of Gundiri vs. Nyako (supra), petitioners state that the decision of the Court striking out the affected written statement on oath of the petitioners’ witnesses in the case of Gundiri vs. Nyako (supra) was not reached until the following took place.
It is argued for the petitioners that from the above analysis, the level of literacy of the witnesses in Gundiri vs. Nyako and the language in which they made their depositions or witnesses’ statement on oath was not determined until after their testimonies before the Tribunal. They contended that in this application, no witness has testified before this Tribunal for the Tribunal to determine the level of their literacy - See Anyari vs. Mandilla (2007) All FWLR (part 382) page 1847 at page 1863 paragraphs E – F. Petitioners further argued that in Gundiri vs. Nyako, the depositions of the witnesses in the case were made in Hausa language (a foreign language) and translated into English language (the official language of the Court) unlike the depositions of the petitioners’ witnesses in this case which were interpreted to the deponents in Yoruba language from the depositions made in the official language of the Court.
Petitioners then submitted that a witness’ statement on oath will only become evidence before a Court of Law or Tribunal when it is adopted by the deponent and it is until then that the evidential value of such a witness statement on oath can be determined. Learned senior counsel referred to the cases of Adebowale vs. Robinson (2018) PLELR 44424 – CA; Hussaini vs. Sambo & Ors (2018) LPELR – 46682 – CA. He argued that the 2nd respondent/applicant has not, in the written address, proffered argument in respect of the language in which the petitioners’ witnesses made their depositions and there is no conclusive proof that the deponents are illiterates. It is the petitioners’ submission that the case of Gundiri vs. Nyako (supra) are not on all fours with their witnesses’ statement on oath and therefore not apt; and that it is only where a deposition is made in a foreign language and later translated into English language that both the deposition in foreign language and the interpreted version in English must be made available before the Court; per Gundiri vs. Nyako (Supra).
Petitioners also referred to the case of Yahaya vs. Dankwambo (2016) All FWLR (part 838) page 942 at 965 paragraphs E – F where the Supreme Court, consistent with its earlier decision in Gundiri vs. Nyako (Supra) held that:
It is not in doubt that the English language version of the deposition of the witnesses concerned contained at pages 886 of Vol. 1, 4497, 4538 of Vol. 6, 4545 – 4560 and 4500 – 4518 of Vol. 6 of the records of Appeal, though containing the name of the one A.G.M. Bello Esq., as one who read and interpreted the depositions to the deponents from the original Hausa language in which they were made to English language they were not signed by him. The English versions therefore had no Jurat.
The law is settled that the language of the Court is English language and that where a statement or deposition made in a foreign language is later translated to the language of the court, the English language version must be tendered in evidence, it must be tendered along with the version in the foreign language. In the instance case, the depositions made in Hausa language were never before the Tribunal nor identified by the witnesses. Only the alleged English language versions of the original depositions were tendered without a Jurat.
It is argued that from the pronouncement of the Apex Court, the deposition of witnesses that will be considered invalid are depositions that have jurat which specifically states that it was translated from a foreign language to English and both the deposition written in foreign language and English language were not made available to the Court or Tribunal. They then submitted that since the depositions being objected to were made in English, the language of the Tribunal and interpreted to a foreign language, in this case Yoruba, the legal requirement is that the jurat must be signed and not that the Yoruba version must be made available by filing same along with the petition. Petitioners further argued that putting illiterate jurat on a document is not a conclusive proof that a witness is an illiterate; and that the question of anyone being literate or illiterate cannot be presumed by the Court or any person because it is a matter of fact to be established by evidence. Reliance is placed on Otitoju v. Governor of Ondo State (1994) LPELR-2825 (SC): Anaeze v. Anyaso (1993) LPELR-480 (SC). The petitioners also pointed out that in Yahaya v. Dankwambo (supra), the affected depositions were considered worthless after the testimonies of the witnesses and determination of their illiteracy; and not in limine as is being prayed for by the 2nd respondent.
On issue two, petitioners submit that this is an application that touches on the competence of the petition since the Tribunal is being called upon by the 2nd respondent to strike out the petition. They argued that by paragraph 12 (5) of the First Schedule to the Electoral Act, 2010 this application ought to be heard with the substantive petition.
In his reply on points of law, learned senior counsel argued on behalf of the 2nd respondent that the petitioners submission that the decision to strike out the written statements on oath being objected to can only be reached after the written statements on oath have been adopted by the deponents is incorrect, as their objection raises issues of the jurisdiction of the Tribunal to countenance those witness statements on oath in the first place, and that jurisdiction being a threshold issue, once it is raised on account of their invalidity, the Tribunal need not wait for the depositions to be adopted before considering its jurisdiction to countenance the written statement. He referred to the case of Okobiem v. UBN Plc. (2019) 4 NWLR (pt. 1662) page 265 at 277, a recent decision of the Court of Appeal, following Gundiri’s case where the Court held as follows:
Where therefore as in the instant appeal case, the witness’s evidence in chief (DW2), her evidence under cross-examination and re-examination if any are founded on a fundamentally defective witness’s statement on Oath, it is as if the witness gave no evidence at all. The case of UAC vs. Macfoy (1962), A.C. 152 is instructive: You cannot place something on nothing and expect it to stand.
Therefore, the statement on oath of DW2 is incompetent hence evidence proffered by her at the trial go to no avail. The trial Court also lack jurisdiction to act on those pieces of evidence drawn from DW2. See Gundiri vs. Nyako (2012) NSCQLR (pt. 1) page 26, (2014) 2 NWLR (pt. 1391) 211.”
Decision:
This third application is by way of Preliminary Objection to the competence of the witnesses’ statements on oath in support of the petition. It challenges the listed witnesses’ statements on oath that contained illiterate jurat, on the ground that they are defective, improper and not in compliance with the extant laws. The defects include that the counterpart Yoruba versions in which the statements were made are not attached and are not before the court; and that the jurat indicates that the deponent(s) affixed their thump impressions on the depositions contrary to their statements on oath. The petitioners/respondents submit that their petition is in compliance with the Electoral Act, and that the competence or otherwise of the illiterate jurats cannot be determined at the pre-hearing stage; the witnesses having not adopted their statements and no evidence having been laid on what could render the illiterate jurats incompetent.
We have considered the processes filed in support and opposition of the application, and the argument of learned counsel on behalf of both parties. We set a lone issue for determination which is simply, in the light of the issues raised by parties; whether the application is meritorious.
This application is brought pursuant to paragraph 4 (5) (b) of the First Schedule to the Electoral Act, 2010 (as amended). That paragraph provides that:
Paragraph 4 (5) (b):
4(5). The election petition shall be accompanied by:
(b) Written statement on Oath of the witnesses;
The purport of the above provision is quite clear, requiring that the election petition be accompanied by a written statement on oath of the witnesses. We agree, as argued by the petitioners, that the petition is indeed accompanied by written statements on oath of the witnesses. If it was not so, the applicants would not have had any statements to be challenging, as in this application. However, the applicant’s contention is that the accompanying statements are defective, by the reasons given in the objection. If it is found to be so, according to the applicant, then the provisions of paragraph 4 (5) (b) would not have been met.
The illiterate jurat is reproduced hereunder; for ease of appreciation:
JURAT
The content of this Oath having been first read and interpreted to the deponent by me ……… from English Language to Yoruba Language and when he/she appeared to have perfectly understood it he/she affixed his/her thumb impression.
Interpreter
The text of the jurat above reads that it was translated from English language, to Yoruba language. As this application is mainly a challenge to the validity of the illiterate jurat, it is necessary to note that the sole essence of the illiterate protection jurat is to protect the illiterate and not to hurt him. See Maigadaje vs. Sulei & Ors (2018) LPELR-46504(CA), Lawal vs. Akande (2009) 2 NWLR (Pt. 1126) 425 @ 429, and UBN Plc vs. Idrisu (1999) 7 NWLR (Pt.609) 105. It is usually the prerogative of the illiterate to challenge the content of a document where he signs as an illiterate without jurat. In the case of Onyeulo & Anor vs. Ibe & Anor (2017) LPELR-42622(CA) the Court of Appeal held that:
Illiterate jurat, by law, is never used as an offensive weapon, but as protection for an illiterate person, who is the one expected to invoke its use.
In the case of Egbuchulam and Anor vs. Egbuchulam & Anor (2014) LPELR-22831 (CA), it was held that “the law on jurat is for the protection of the illiterate and is used as a shield and not as a sword”. The protection therefore singularly enures to the illiterate. See Falunbi v. Olanloye (2004) 6-7 SC 68 at 80. See also Oyedele & Anor vs. Jimoh (2012) LPELR-8536 CA, where it was held that:
...a jurat is meant to operate in favour of the illiterate person to ensure his protection, that his illiteracy not taken undue advantage of... A jurat is for the protection of the illiterate and cannot be used against his interest." Wilson v. Oshin (2000) 6 SC pt.111 at 24." Per MBABA, J.C.A. (Pp. 20-22, Paras. D-B)
We are in agreement that the essence of the requirement of an illiterate jurat is to protect the illiterate from having statements imputed to him, contrary to his intentions. Thus, it should naturally be open for the illiterate to use it in his own defence. We are therefore careful to heed the advice of the appellate courts not to put in the intendment of illiterate jurats what is not intended to accomplish. If it is to ensure that what is stated in the illiterate’s statement reflects what the illiterate person has stated, then he should be the only person to complain if that is not the case. See Fatunbi vs. Olanloye (2004) 6-7 S.C. 68; (2004) LPELR-1254 (SC). This position is aptly captured in the decision in the case of Tar & Ors vs. Ministry of Commerce & Industries & Ors (2018) LPELR-44216 (CA) where the Court held:
On the issue of the lack of an illiterate jurat on the Statements on oath of the DW4, DW5 and DW6, it is apparent from the face of the Statements that they were duly interpreted to the witnesses before they took their oaths before the Commissioner for oaths. It is also evident that details of the interpreter are not contained thereon. This however is not a prerequisite for witness statements under the Rules of Court, the statements not being affidavits that could have required strict compliance with Section 119(2) (a)-(c) of the Evidence Act. Be that as it may, it is the law that the jurat is for the protection of the illiterate from possible fraud. It is therefore to be used as a shield and not as a sword. The failure to insert a jurat on a document only makes it unenforceable as between the illiterate, the maker and the writer/preparer of the document if the document fails to comply with Section 3 of the Illiterates Protection Act. Thus, it is not for the Appellants to use it against the DW4, DW5 and DW6. It is the law that non-compliance with the law on jurat does not, per se, invalidate a document. See Igbum v. Nyarinya (2001) 5 NWLR (Pt. 707) 554 at 571, 573-574; Wilson v. Oshin (2000) 6 SCNJ 317 at 397; Anyabunsi v. Ugwunze (1995) 7 SCNJ 55 at 69; Egbuchulam v. Egbuchulam (2014) LPELR-22831(CA) 32, paras E-F; Sunday v. FRN (2013) LPELR-20192(CA) 38-39, paras F-B. It needs to be emphasized that the provision of Section 2 of the Illiterates Protection Act is intended for the protection of the illiterate person. Care must be taken not to change the intendment of the section into what it was not intended to accomplish. Essentially, it is to trace the whereabouts of the maker of the statement. It is also to ensure that what is stated therein reflects what the illiterate person has stated and intended to be correctly captured in such a document. Therefore, it is only the illiterate that can complain if that is not the case. In Fatunbi v. Olanloye (2004) LPELR-1254(SC) 25-26, paras G-G, the Supreme Court per Pats-Acholonu, JSC (of blessed memory) held:
"Implicit in that section is that where there exists a doubt or denial as to the correct statements that were made by the illiterate, the writer will be traced to show whether the contents of the document represent the veracity of what the illiterate asserts. In other words, the protection singularly enures to the illiterate."
Again, in Ogunleye v. Safejo (2009) LPELR-8081(CA) 21-22, paras G-A, I was privileged to consider and pronounce on the absence of an illiterate jurat on a document of title. I reiterate and adopt my position in that case where I stated as follows:
"An illiterate person is a person who is unable to read with understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf. See Otitoju v Governor, Ondo State (1994) 4 SCNK 224; Ntiashagwo V Amodu (1959) WNLR 273.
The Illiterates Protection Law applies to protect persons who prove that they are illiterates in fact, that they did not understand what they signed and that the documents were not read over to them. See Francis Anaeze v. Ude Anyaso (1993) 5 SCNJ 151. The Illiterates Protection Law, which the Appellant alleged Exhibit A contravened, was made primarily for the protection of illiterate persons. It is therefore the illiterate person, at whose behest any person writes a letter or a document, that requires protection and he is the one who may seek the protection given by the law by complaining that the letter or document written at his request and which was signed with his signature or his mark was not, prior to its being so signed, read over and explained to him. The point must be made that the law, as the title suggests, is to protect, defend, shield and safeguard illiterates from being exploited. It is certainly not to exploit them.
Therefore, the fact that the writer of a letter or a document at the request, on behalf or in the name of an illiterate did not completely comply with the requirements of that law does not necessarily mean that such letter or document was for that reason alone, void and of no effect. It is indeed a shield and not a sword. See Aighobahi v. Aifuwa (1999) 13 NWLR (Pt. 635) 412 at 420; Edokpolo & Co. v. Ohenhen (1994) 7-8 SCNJ 500..."
It would have been a different thing if the Statements on oath of the DW4, DW5 and DW6 were not duly sworn to or, put another way, where the makers of the written statements were not administered with the oath. Before the coming into practice of the various Rules of Court requiring the front-loading of all evidence to be presented before a Court, witnesses were required to give oral evidence in Court. Section 205 of the Evidence Act, 2011 requires that such oral evidence in any proceedings must be given upon an oath or affirmation being administered on such witnesses in accordance with the provisions of the Oaths Act. In that case, as soon as the witness steps into the witness box, he takes an oath or makes an affirmation before he is allowed to testify.
By the present Rules of Court however, and also in Election Petitions, the Rules guiding the procedure in the Courts and/or Tribunals, permit that the testimonies of witnesses be reduced into writing and sworn to before the Commissioner for Oaths, Notary Public, or the like, as the case may be. Thereafter, the witnesses adopt such Statements on oath at the trial as their evidence-in-chief. Since the witnesses do not give oral evidence which would necessitate the administration of the oath in the witness box, but will simply adopt their written statements, it is imperative that their written statements be deposed to on oath. The oath is what therefore gives the statements their validity. See Oraekwe v. Chukwuka (2010) LPELR-9128(CA) 41-42, paras G-E; Ishaq v. INEC (2008) LPELR-4336(CA) 43, paras A-C. In the instant case, all three Statements of the DW4, DW5 and DW6 were duly sworn before the Commissioner for Oaths of the High Court of Justice, Benue State. Thus, the lack of an illiterate jurat cannot invalidate them, except on the protest of the witnesses themselves. The Appellants are busybodies in this regard, essentially crying louder than the bereaved!" Per SANKEY, J.C.A. (Pp. 32-37, Paras. D-E)
Here, it is the 2nd respondent who has brought this application on the ground of the incompetence of the illiterate jurats. First, the persons who deposed to the statements containing the illiterate jurats complained of have not given evidence to confirm or challenge the statements, as theirs. Apart from our opinion that it should be for the ‘illiterate deponents’ to challenge their statements on the ground of it’s not being their act or the absence of an illiterate jurat, it is our further opinion that, assuming the 2nd respondent has any basis to challenge the statements of the petitioners’ witnesses on the ground of incompetent jurat, this can only be done upon the witnesses’ adoption of their statements. That would be, in our view, the appropriate time to determine the competence or otherwise of the jurats. According to the Supreme Court in Sunday v. FRN (2018) LPELR-46357 (SC),
The issue or question on who is actually an illiterate cannot be presumed by Court but it is an issue or question which must be proved by evidence and as I stated supra, the burden to prove such assertion of illiteracy lies squarely on the person who alleged such illiteracy.
The 2nd respondent referred to the case of Markus Natina Gundiri & Anor vs. Rear Admiral M.H. Nyako & 6 ORS (2014) 2 NWLR (PT.1391) 211@ 244 C where a translated written deposition in English language with an illiterate jurat without the Hausa version was rejected by the Court. We distinguish that case from this application, in that, the Court could rule on the competence or otherwise of the jurats after it had taken evidence. It is premature for this Tribunal to rule on the competence of the illiterate jurats at the preliminary stage of trial.
On this same issue of striking out of witness statements on oath on the ground of the petitioners not showing proof of the primary language in which the witnesses made the statement, the Court of Appeal further held in Tar & Ors vs. Ministry of Commerce & Industries & Ors (supra) that:
Counsel has asked that the said Statements on oath be expunged from the Record because they were made in Tiv language before they were translated into English language. This issue therefore rests on the facts before the Court. From the printed Record of Appeal, this submission is based on nothing but a presumption that there exists somewhere a record of the witnesses' statements recorded in Tiv. However, from the evidence of the DW4 and DW5 under cross-examination, while they spoke and gave their statements in Tiv language, the writer of their statements recorded same in English language; while the evidence of the DW6 is that his own statement was recorded in both Tiv language and English language. Nonetheless, contrary to the submission of Counsel, there is no law requiring that both versions of a witness' Statement on oath in a civil Court be brought before the Court before it can be valid. It would appear that Counsel is confusing the witness' statements on oath with the tendering in evidence of documents such as confessional statements in criminal trials, and the like. As aforesaid, the witness' statement only constitutes the evidence-in-chief of the witness after it must have been duly sworn and adopted in Court by the witness. Thereafter, it still has to be subjected to the crucible of cross-examination before any weight can be attached to it by the Court.
Finally, I am mindful of the decision in Gundiri V Nyako (supra). In that case, there was evidence that the statement on oath was made in a language other than the language of the Court, before it was thereafter translated into English. In such a circumstance, the requirement is that both versions of the Statement be put in evidence. It must also be borne in mind that this decision arose from an Election Petition for which the proceedings are sui generis. The facts and circumstances of the witness Statements of the DW4, DW5 and DW6 in the instant case, as aforesaid, are different. Therefore, it cannot be applied willy-nilly to the facts of this case, as it is distinguishable." Per SANKEY, J.C.A. (Pp. 37-39, Paras. F-E) (Underlining Ours)
In this application, no evidence exists, at this stage, to establish the nature and conditions under which the challenged statements were made. In the circumstance of this finding, we are unable to grant this application as presently constituted. The application is therefore dismissed.
The fourth application taken on the same 15th of May is brought by the 3rd respondent. The application is dated 9th May 2019 and filed on same date. It seeks for the striking out of certain listed paragraphs of the petition. Chief N.O.O. Oke, SAN, while moving the application adopted all the processes filed pursuant to the application. Both 1st and 2nd respondents did not file any process. Chief Ashaolu, SAN adopted the processes of the petitioners in opposition to the application.
We have considered all the processes filed with respect to this application. We find that the prayers sought are exactly in the terms of the prayers and arguments made with respect to the 2nd application taken on same 15th May, brought by the 2nd respondent. The decision already given by us, with respect to that application applies, mutatis mutandis, to this application.
The fifth application taken on the same 15th of May is again brought by the 3rd respondent. The application is dated 9th May 2019 and filed on same date. It seeks for an Order striking out the petitioners’ witnesses’ statement on oath on the ground that the illiterate jurats are not competent. This application and the responses thereto, are in the same material terms as that brought by the 2nd respondent of which decision is already made (3rd application). There is no need repeating the processes and proceedings, except to say that the decision in the said 3rd application shall apply to this application.
The sixth application taken on the same 15th May seeking for recounting of all ballot papers used for the conduct of the Governorship Election of 9th March 2019, brought by the petitioners has already been determined. The Ruling was delivered on the 20th of May 2019 and subsists as the decision of this Tribunal with respect to the application.
The petitioners’ second application and the 7th taken on the 15th of May is brought pursuant to paragraph 47 (1), (2) and Paragraph 12 (3) of the First Schedule to the Electoral Act (as amended), Order 13 Rule A (1) (2) of the Federal High Court Rules, 2009. It seeks:
The grounds upon whichthe application is brought are that:
The application is supported by an affidavit of 8 paragraphs deposed to by Augustine Ola Akindele Esq. In the petitioners’/applicants’ written address in support of the motion, petitioners raised a sole issue for determination, to wit:
Whether the 1st Respondent’s Reply to the Petition is not liable to be struck out for failure to accompany the said Reply with documentary evidence in contravention of the mandatory provisions of paragraph 12 (3) of the First Schedule of the Electoral Act, 2010 (as amended)
Learned senior counsel to the petitioners/applicants, Chief Titus Ashaolu, SAN, adopted the applicants’ processes in support of the application. In arguing the sole issue, he submitted that the 1st respondent is under obligation to accompany her Reply to the petitioners’ petition with documentary evidence by virtue of the provision of paragraph 12 (3) of the First Schedule to the Electoral Act, 2010 (as amended). This provision, petitioners argued, have been given a judicial blessing in the case of Uduma v. Arunsi (2012) 7 NWLR (Pt.1298) 55 @ 109 A – B, where OGUNWUMIJU JCA echoed as follows:
By the Practice Direction, a witness statement on Oath must accompany a petition and a reply of a Respondent. The Practice Direction paragraph 1 (1) stipulates that the petition must be accompanied by copies or list of documents to be tendered. Paragraph 2 states that the Respondent’s Reply shall be supported by copies of documentary evidence.” (Underlined for emphasis)
The petitioners argued that although the above case was decided in accordance with the provisions of the Election Tribunal and Court Practice Direction, 2007 (paragraph 2 thereto), the provisions considered therein is in pari materia with the provisions of paragraph 3 of the First Schedule to the Electoral Act 2010, (as amended) under consideration in this application. The petitioners therefore urge the Tribunal to hold that the 1st respondent having failed to accompany its Reply with copies of documentary evidence, the Reply is bound to be thrown out. They argued further that by the sui generis nature of an election petition of this nature, strict compliance with the provision of the First Schedule to the Electoral Act, 2010 (as amended) is required and non- compliance with such requirement is very fatal.
1st respondent responded by filing on 12th May 2019, a 5 paragraph counter affidavit dated same 12th May and deposed to by Dele Abolarin Esq and a written address of same date. During the hearing of the motion, Mr. Akinlolu Kehinde, SAN, on behalf of the 1st respondent, adopted both processes and urged the Tribunal to dismiss the application. 1st respondent raised the issue;
Whether with the state of the law and the evidence before this Honourable Tribunal, the petitioner’s application is not liable to be dismissed?
1st respondent submitted that the position of judicial authorities is that the parties to an election petition whether the petitioner or respondent are at liberty to either list the documents to be relied on at the trial or list and frontload the document with the petition or the reply. They argued that the above submission is premised on the need to maintain a level playing ground for the parties and not to give an undue advantage to any of the parties to the detriment of the other party. That, in the instant petition, the petitioners listed the documents they want to rely on at pages 184 – 186. Vol.1 of the petition just as the 1st respondent also listed its own documents at pages 152 – 153 of the Reply. The 1st respondent further submitted that the listing of the documents to be relied upon by the 1st respondent has given the petitioners enough notice about the said documents and that incidentally; they are basically the same documents which the petitioners have listed also. It is further submitted that the application of the petitioners is an invitation to deny the 1st respondent its right to fair hearing by asking the Tribunal to strike out the Reply of the 1st respondent on the lame excuse that the 1st respondent did not frontload its documents; and that there is no provision in the Electoral Act that allows the sanction being proposed by the petitioner against the 1st respondent. In support of its arguments, the 1st respondent referred to the case of Chime vs. Onyia (2009) 2 NWLR (Pt. 1124) 1 @ 51 A-B where a similar situation under the Electoral Act 2006 which is in pari materia with the provisions of the Electoral Act 2010, as amended, was considered by the Court, and the Court held inter alia:
Also the said paragraph 2 of the Practice Directions does not provide any sanction for failure of a Respondent to frontload his pleaded documents. The mere use of the word “shall” without any specific consequential sanction does not of itself import compulsion or sanction and clearly no such serious and severe sanction as rendering the reply incompetent.
The 2nd respondent responded to this application by filing a 7 paragraphs counter affidavit dated and filed on 12th May 2019 by Kunle Faokunla Esq. He also filed a written address in support of the counter affidavit. Mr. Eyitayo Jegede SAN; learned senior counsel for the 2nd respondent adopted the processes. He raised the lone issue of:
Whether the 1st Respondent’s Reply to the Petitioner’s petition is incompetent solely on the ground that its Reply is not accompanied by documentary evidence sought to be relied on at the trial.
He submitted that a party to a case is fully at liberty to choose to call evidence or tender documents in support of his case or rely on documentary evidence tendered by the opposing party; and that the fact that the 1st respondent did not accompany its Reply with documentary evidence does not mean that the 1st respondent cannot defend the election petition relying on the evidence of the witnesses it will call or other evidence or document before the court. He argued that it is not in all cases where the word “SHALL” is used in an enactment that it connotes mandatoriness and imposes obligation. He referred to the case of Fidelity Bank Plc. vs. Monye & 2 Ors (2012) 3 SC (pt. 1) 73, Per Muhammad JSC at page 97 line 34 to 36 and page 98 lines 1 to 4 that:
I agree with Oguntade JCA (as he then was) further, that it is not always that a Court of law would interpret the word “must” or “shall” as mandatory. The court must examine the context within which the word is used. The word “must’ is often, interchangeable with the word “shall” and both can mean “may” where the context so admit.
2nd respondent argued that the case of Uduma vs. Arunsi (2012) 7 NWLR (pt. 1298) 55 at 109, relied on by the petitioners does not apply to this case as it was not a case in which a Reply or Petition was struck out for not filing documentary evidence along with the pleadings. He further submitted that the application to have the 1st respondent’s Reply struck out for the sole reason that it was not accompanied by copies of documentary evidence is premature and pre-emptive because a respondent may at trial chose not to tender any document or proffer any evidence in support of his pleadings and statement on oath. That, where such respondent chooses to tender in evidence a document that is not frontloaded, the other party may successfully take an objection to the tendering of the document. He further argued that where no sanction or consequence is provided for failure to abide by a mandatory provision, even though the word ‘shall’ is used, such directive in legislation is permissive.
He referred to the case of Chime vs. Onyia (2009) 2 NWLR (pt. 1124) 1 at 51 A and B as an authority for the principle of law that a Reply that is not accompanied with documentary evidence is not incompetent. There, Bada, JCA reiterated the position as follows:
The mere use of the word “shall” without any specific consequential sanction, does not itself import compulsion or sanction and clearly not such a serious and a severe sanction to render the Reply incompetent.
Learned senior counsel for the 2nd respondent made the point that the principle of fair hearing will enure in favour of a respondent who has filed a Reply albeit without documentary evidence and will override the provision of the First Schedule requiring documentary evidence to be filed along with a Reply. This principle becomes more imperative when under the same rules the other party, in this case the petitioners are not mandatorily required to file document or evidence along with their own pleadings. That, the principle of fair hearing and natural justice will not allow a respondent to be shut out for the simple reason that documentary evidence is not filed along with his Reply, especially, since, unlike in the case of a petition which can be struck out under paragraph 4 (1) (7) of the 1st Schedule to the Electoral Act, 2010 (as amended) for non-compliance with paragraph 4 (1) of the Schedule to the Act, there is no corresponding provision permitting a Reply of a respondent to be struck out for failure to comply with paragraph 12 (3) of the 1st Schedule to the Electoral Act, 2010 (as amended).
In response to the 2nd respondent’s Reply to their application, the petitioners filed a 9 paragraph further affidavit deposed to by Olajide Ola Esq; and a written address in opposition to the 2nd respondent’s written address. On a preliminary point of law, petitioners challenged the validity of the counter affidavit and written address of the 2nd respondent on the ground that they are filed malafide. They contend that the application only affects the 1st respondent, and the 2nd respondent has not shown his locus to file a counter affidavit and a written address to the said application. That being so, the petitioners submitted that the 2nd respondent is a busy body and meddlesome interloper and thus not entitled to be heard in this application. Petitioners referred to the decision of the Court of Appeal in Somide v. Oganla & Anor (2017) LPELR – 42366 (CA) per Tsammani JCA at page 29 paragraph A – B that:
The law is trite, that it need no citing of any authority that, a person who is not a party to a dispute cannot be heard in the dispute. The fact that he is a person interested in the outcome of the Suit is irrelevant. To secure the right to be given an opportunity to be heard, he must be specifically joined as a party to the dispute.
In oral adumbration, E. Jegede, SAN for the 2nd respondent in reaction to being called a busy body and meddlesome interloper stated that the petitioners did not take into account the fact that the petition they filed is against the declaration and return of the 2nd respondent. He argued that the petitioners willingly made the 2nd respondent a respondent in the application under paragraph 47 (4) of the First Schedule to the Electoral Act, and that the 2nd respondent is mandatorily required, if he intends to oppose the application, to file a response.
The 3rd respondent did not file any process in response to the application.
Decision:
We have considered the processes filed with respect to this 7th application and the submissions of counsel. In the application, petitioners had stated as one of the grounds for the application, that paragraphs 30 – 800 of the 1st respondent’s Reply to the petition is not only vague but full of uncertainty and imprecision. However, petitioners failed to proffer any arguments in support of this ground. It is therefore taken as abandoned, and we find no need to rule on it. See Bredero (Nig) Ltd vs. Shyantor (Nig) Ltd & Ors (2016) LPELR-40205 (CA); Timothy & Anor vs. Okpein & Ors (2018) LPELR-44182 (CA) and Ikumonihan vs. State (2018) LPELR-44362 (SC).
On the issue of the status of the 2nd respondent to respond to this application, we agree, as argued by the petitioners that it is trite that only parties to an action can respond to it. That is trite and does not require much elaboration. However, we have considered the status of the 2nd respondent, and find that he cannot be regarded as a stranger to this suit. The Court of Appeal in the case of Trans (Nig) Assurance Co. LTD vs. A-G, Oyo State & Anor (2018) LPELR-44739 (CA) restated who a ‘party’ to an action is. The Court stated that:
In Black's Law Dictionary 5th edition page 1010:- A party to an action is a person whose name is designated on record as Plaintiff or Defendant, the term party refers to that person(s) by or against whom a legal suit is sought. Whether natural or legal persons but all others who may be affected by the suit indirectly or consequentially are persons interested and not parties.
It is not in dispute that 2nd respondent is a party to this action. What the petitioners contended is that it is not the 2nd respondent’s process that is being challenged in this application. That, in our view, does not remove the fact that the 2nd respondent is a party to this action. The name of the 2nd respondent clearly appears in the motion on notice as respondent. Whereas petitioners described themselves as “petitioners/applicants”, the 1st, 2nd and 3rd respondents were jointly referred to as “respondents” without any further description making the 1st respondent the only respondent to the application. Both 2nd and 3rd respondents were equally served with the motion papers as clearly shown on page three (3) of the motion papers. The written addresses were equally served on the 2nd respondent. 2nd respondent can therefore not be a meddlesome interloper in this application when petitioners themselves made him a party to the action and served him with all processes, including the present application.
We have further considered the case of Somide vs. Oganla & Anor (supra) cited by the petitioners and find that in that case, the issue was a ‘person’ who was not already a party, but who responded to a motion in the suit. The Court, in addition to the portion quoted by the petitioners above also stated that:
To secure the right to be given an opportunity to be heard, he must be specifically joined as a party to the dispute. In the instant case, the party sought to be joined WAS YET to be joined as a party nor any of the processes, including the Motion seeking to join him, served on him. He simply jumped into the fray, upon being shown the Motion seeking to have him joined in the matter. I am of the view that the filing of the Counter Affidavit in opposition to the Motion for joinder, was done in abuse of Court process. (Emphasis ours)
The position above is not the case in this application. The 2nd respondent is already a party to this action, and thus has the status to respond to any application made within it, especially where his interest is at stake, and he is properly served for that purpose. We therefore find and hold that 2nd respondent’s counter affidavit and written address in response to this application is competent and shall be considered.
The only issue left to be determined with respect to this application is the competence of 1st respondent’s Reply to the petition, same having not been accompanied by documentary evidence. For that purpose, we adopt the issue for determination set out by the petitioners/applicants:
Whether the 1st Respondent’s Reply to the Petition is not liable to be struck out for failure to accompany the said Reply with documentary evidence in contravention of the mandatory provisions of paragraph 12 (3) of the First Schedule of the Electoral Act, 2010 (as amended)”
The relevant statutory provision, as relied on by the petitioners/applicants and conceded to by the respondents to this application is Paragraph 12 (3) of the 1st Schedule to the Electoral Act, 2010 (as amended) which provides that:
The Reply may be signed by the Respondent or the solicitors representing him, if any and shall state the name and address of the solicitor at which subsequent processes shall be served; and shall be accompanied by copies of documentary evidence, list of witnesses and the written statements on Oath.” (Underlining Ours)
It is the petitioners’/applicants’ contention that the word ‘shall’ used in the above provision is mandatory, thus, the 1st respondent’s Reply to the petition, not being accompanied by copies of documentary evidence, should be struck out. On the other hand, respondents argued that it is not in all cases where the word “SHALL” is used in an enactment that it connotes mandatoriness and imposes obligation; but that it may have permissive and directive meaning.
We have considered the arguments of all the parties on this issue. The provision under which this application is brought indeed requires a Reply to be accompanied by copies of documentary evidence. The word ‘shall’ is used therein. As argued by the applicants, the Courts have indeed interpreted the word ‘shall’, to connote mandatoriness. In the same manner, the same Courts have stated that it is not in every situation that the word ‘shall’ will be interpreted to connote mandatoriness.
In Onochie vs. Odogwu [2006] 6 NWLR (Pt.975) 65, the Supreme Court referred to the Longman Dictionary of the English Language’s definition of ‘shall’ as being used to express a command or exhortation or what is legally mandatory. The use of the term ‘exhortatory in this referred definition, suggests that there are times when the word ‘shall’, is not mandatory. In the case of International Standard Securities vs. Union Bank of Nigeria Plc (Registrar's Department) (2009) LPELR-8788(CA) the Court of Appeal, per PETER-ODILI JCA (as he then was) reiterated that the principle governing the use of "shall" in a legislative sentence is that it is generally imperative or mandatory. In its ordinary meaning, it is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. However, he noted that it is sometimes intended to be directory only and in that case, it is equivalent to "may" and will be construed as being merely permissive. His lordship further noted that no universal rule can be laid down for determining whether the provisions of a statute are mandatory or directory; in each case, the intention of the legislator must be ascertained by looking at the whole scope of the statute and in particular, at the importance of the provision in question relative to the general object to be secured. See also the Supreme Court in A.T. Ltd. vs. A.D.H. Ltd. (2007) 15 NWLR (Pt.1056) 118 S.C.
