⦿ CASE SUMMARY OF:
Congress for Progressive Change v. Independent National Electoral Commission (INEC) & 42 Ors. (2011) – CA
by NSA PaulPipAr
⦿ AREA OF LAW
– Election petition.
– Filing of petition.
– Non-joinder of issues.
– Public holiday.
Congress For Progressive Change
Independent National Electoral Commission (INEC) & Ors.
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
ISA AYO SALAMI, P.C.A, OFR
* FOR THE APPELLANT
– Ebun O. Sofunde, SAN. and ors.
* FOR THE RESPONDENT
– Chief Wole Olanipekun, SAN, and ors.
⦿ FACT (as relating to the issues)
Following the conduct of the Election into the office of the President of the Federal Republic of Nigeria by the 1st and 2nd Respondents on the 16th day of April, 2011, and the subsequent return and declaration of the 3rd and 4th Respondents (candidates of the 5th Respondent), as winners of that Election on the 18th April, 2011, the Petitioner (one of the political parties that participated in the election and sponsored candidates at that election); was aggrieved by the outcome of the exercise, and accordingly filed a petition in this Honourable court on the 8th day of May, 2011.
Sequel to the service of copies of the Petition on the Respondents, the 3rd and 4th and 5th sets of Respondents in their respective Replies gave Notices of Preliminary Objections to the Petition on Grounds of incompetence which Notices and Grounds of Objections are as contained in pages 2 – 3 of the 3rd and 4th Respondents’ and pages 3 – 5 of the 5th Respondent’s Replies, respectively.
1. Whether the petition filed on Sunday, May 08, 2011 is incompetent?
2. Whether failure to join the candidates (Presidential and Vice Presidential) by the petitioner is fatal to this suit?
3. Whether the non-joinder of the Police, the Army, and Civil Security Agents is proper and sustainable in law, given the spurious allegations levelled against them?
⦿ RESOLUTION OF ISSUE(S)
THE COURT OF APPEAL DISMISSED THE NOTICE OF PRELIMINARY OBJECTION, IN PART.
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
i. In the instant case the Petitioner’s Petition as has been said earlier bears the stamp and imprimatur of the Registrar and Registry of the court of Appeal as having been filed on the 8th day of May, 2011 and therefore provides prima facie evidence of the regularity or otherwise for this Court to invoke the presumption under Section 150 of the Evidence Act in favour of the Petitioner. The position of the law is as expressed in the Latin maxim “Omnia praesumuntur rise esse acta” that is the presumption that what is done is presumed to brightly or regularly done. See the cases of Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 and Okeke v. The state (2003) 15 NWLR (Pt. 842) 25. Again, contrary to the submissions of the learned senior counsel to the Respondents, the burden of establishing that there was no directive from the president to the Registrar to open the Registry on Sunday the 8th of May, 2011 for purposes of filing the Petitioner’s petition was/is on the Respondents which has not been discharged. Although Ikhariale v. Okoh had been cited, we have demonstrated as we shall demonstrate anon that, that authority did not take into consideration the entire provisions of the Interpretation Act and indeed the Public Holidays Act, Cap. P40, Laws of the Federation of Nigeria, 2004. Suffice it to say that the English Authorities cited by Chief Gadzama are not applicable to the facts and circumstances of this case.
ii. By parity of reasoning; it has not been shown in this case that the Petitioner or Counsel on her behalf was compelled to file her petition on a Sunday so as to warrant the invalidation of the said petition. Indeed, the zeal to file his petition before the expiration of the time stipulated by the Electoral Act and the sacrifice by the staff of the Registry to work on a Sunday owing to the Sui generis nature of election petitions(which ought even to be commended), cannot attract the ire of the court. The Respondents have not complained that they have suffered any injustice nor can they be heard to so complain of any injustice occasioned them by the filing of the Petitioner’s processes on a Sunday.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. For, although they are desirable parties who may benefit from the outcome of the petition, the Electoral Act gives the Political party (C.P.C.) under whose umbrage they contested the election, the right to challenge the election and neither the Respondents nor even this Court can compel the Petitioners to join the said candidates in this petition.
ii. The argument that the Court does not make an order in vain and that a necessary party is that party that would be affected by the order or decision of the Court as advanced by the Respondents is non sequitur in view of the Statutory provision in Section 137(1)(b) that recognizes the fact that a political party is a juristic person with the right to sue and be sued. In this context, it would appear that the Electoral Act by that Section recognizes the commonality of interest between a political party and its sponsored candidates and that any or both of them can bring a petition to challenge an election of which they were Participants.
iii. No proceedings shall be defeated by reason of misjoinder or non joinder of parties and a Judge may deal with the matter in controversy, so far as regards the right of the parties. Where as in this case, the Electoral Act recognizes the inalienable rights of either the party, or candidate or both to bring a petition in this Court, the petition cannot be struck out for nonjoinder of Muhammadu Buhari and Pastor Tunde Bakare.
3. ISSUE 3 IS RESOLVED, PARTLY, IN FAVOUR OF THE APPELLANT AS WELL AS THE RESPONDENTS.
i. It is common knowledge that the Nigeria Police, Army and Civil Defence Security Corps are statutory bodies charged with the maintenance of peace, order and defence of our territorial integrity. They can therefore not be categorized as agents of the 5th Respondent for purposes of Election. These bodies are normally deployed by INEC and if they went out of their constitutional duties to engage in nefarious activities as claimed by the petitioner, then the rule of fair hearing demands that they be joined so as to defend themselves because their alleged conduct if proved shall affect the petition positively. Even if so, by the decision in Ige v. Farinde (supra); there is no how this petition can be effectually and completely settled without joining these organs against whom serious allegations have been made in view of the effect the allegation would have on their integrity as security outfits.
ii. As far as paragraph 38 of the petition is concerned, we are of the candid view and in agreement with the petitioner that where the petition pleads that the result recorded in favour of the 3rd, 4th and 5th Respondents were only a product of corrupt practice brought about by the imposition of unlawful restrictions of movement and deployment of armed and civilian security outfits and soldiers on the instructions of the 3rd Respondent, who equally ordered the use of Police and Army transport equipments for deployment of sensitive electoral materials without the participation of the petitioner or his representatives, the allegations were clearly against the 3rd Respondent and not the security officers.
IN CONCLUSION, THE SUPREME COURT STATED: “On the whole, the Preliminary Objections of the 3rd, 4th and 5th Respondents have only succeeded in part and we so hold. To recapitulate on the entire objections, we hereby resolve as follows:
i. That the petition is competent even though filed on a Sunday.
ii. That reliefs 4 and 6 of the petition are incompetent and are struck out.
iii. That paragraph 14(d)(iv) of the Petition is incompetent and is hereby struck out for non-joinder of the Nigerian Police, the Army, and Civil Security officers who purportedly aided the 5th Respondent to snatch ballot papers, ballot boxes, and sensitive election materials at the election in question. There shall be no order as to costs.
– Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009.
– Paragraphs 25(1) & (2) and 26(1) & (2) of the 1st Schedule to the Electoral Act, 2010.
– Section 150 of the Evidence Act.
– Section 6(1) of the Public Holidays Act.
⦿ SOME PROVISION(S)
Interpretation Act (Section 10(2) thereof) which states that:- “An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.”
Section 137(1) of the Electoral Act 2010 (As Amended) provides thus:- “(1) An election petition may be presented by one or more of the following Persons – (a) a candidate in an election; (b) a political party which participated in the election.”
⦿ RELEVANT CASE(S)
Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt 4) 557: “that is court is only competent when: (a) it is properly constituted with respect to the number and qualification of its members; (b) the subject matter of the action is within its jurisdiction; (c) the action is initiated by due process of law; and (d) any condition precedent to the exercise of a jurisdiction has been fulfilled.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of proceedings and even on appeal before this Court. – ISA AYO SALAMI, PCA. CPC v. INEC (2011)
The learned Mr. Ebun Sofunde (SAN) has also rightly argued that the Federal High Court (Civil Procedure) Rules are only applicable “subject to the express provisions of this Act” (i.e. the Electoral Act, 2010 (As Amended)” In other words, the Rules are subordinated to the Electoral Act, 2010 (As Amended) and the Rules made there under which are provided for under the 1st Schedule thereto. – ISA AYO SALAMI, PCA. CPC v. INEC (2011)
Having shown that a right is conferred on it by the Electoral Act, malice or motives (which do not even exist in this case) are immaterial to the presentation of the petition. Accordingly, this issue is again resolved in favour of the Petitioner as we hold that the petition is not abusive of court process nor does it raise hypothetical, academic, or moot questions or issues. The issues raised in the petition are live and donated by the Electoral Act to the Petitioner as of right. – ISA AYO SALAMI, PCA. CPC v. INEC (2011)
It is trite and we agree with the Respondents contentions that this Honourable Court as constituted has no jurisdiction to entertain pre-election matters. – ISA AYO SALAMI, PCA. CPC v. INEC (2011)