HABILA TIMOTHY ANDERIFUN V HON. IRATSI YOHANNA ADAKI & ORS

Legalpedia Citation: (2015-09) Legalpedia (CA) 11108

In the Court of Appeal

HOLDEN AT YOLA

Tue Sep 1, 2015

Suit Number: CA/YL/EPT/TRS/SHA/48/2015

CORAM

BIOBELE ABRAHAM GEORGEWILL JCA

PARTIES

HABILA TIMOTHY ANDERIFUN

APPELLANTS

1. HON. IRATSI YOHANNA ADAKI

2. PEOPLES DEMOCRATIC PARTY (PDP

3. ALL PROGRESSIVE GRAND ALLIANCE (APGA)

4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, ELECTORAL LAW, RULES OF STATUTORY INTERPRETATION, JUDICIAL PRECEDENT, JUDGMENT, CIVIL PROCEDURAL LAW, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This appeal is against the decision of the National and State House of Assembly Election Tribunal sitting in Jalingo, Taraba State. During the 2015 General Elections in Nigeria, the Independent National Electoral Commission (INEC), the 4th Respondent conducted election into the Ussa Constituency in the Taraba State House of Assembly on 11/4/2015, in which election the Appellant was the candidate sponsored by the 3rd Respondent, while the 1st Respondent was the candidate sponsored by the 2nd Respondent. At the conclusion of the Election, the 4th Respondent declared the Appellant as the winner and he was so returned as member representing the Ussa Constituency in the Taraba State House of Assembly having scored the majority of the lawful votes cast at the said Election.

The 1st and 2nd Respondents were dissatisfied with the outcome of the Election and Return of the Appellant by the 4th Respondent and had promptly approached the National and State House of Assembly Election Tribunal sitting in Jalingo, Taraba State to ventilate their grievances vide an Election Petition. The Lower Tribunal heard the Appellant’s motion challenging the competence of the Petition and in a considered Ruling it refused the application of the Appellant to strike out the Petition for lacking in merit. Thoroughly dissatisfied with the ruling of the Lower Tribunal, the Appellant had filed an appeal against the said ruling vide a Notice of Appeal

HELD

Appeal allowed.

ISSUES

“Whether having regard to the provisions of Section 138(1)(b) of the Electoral Act 2010 as amended, the Lower Tribunal was right when it held that the ground provided by the 1st and 2nd Respondents for presentation of their Petition has substantially complied with the provisions of the Electoral Act 2010 as amended” ?

RATIONES DECIDENDI

PETITION – WHETHER OR NOT A SINGLE GROUND IN AN ELECTION PETITION CAN SUSTAIN A PETITION

It is the law, and it is worth being reiterated that a single ground in an Election Petition if within the ambit of Section 138(1)(a) – (d) of the Electoral Act 2010 as amended can sustain an Election Petition since it has the requisite legal capacity to render it competent in law. See Ojukwu V. Yar’Adua (Supra)@ p. 71. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

JUDICIAL PRECEDENT – WHEN IS A DECISION SAID TO CONSTITUTE A BINDING PRECEDENT

In coming to the above conclusion, I have averted my mind sufficiently to the position of the law as to when a decision can be said to constitute a binding precedent and thus operate within the time honoured principles of stare decisis. The law is that it is the facts and circumstances of any given case that framed the issues for decision in that particular case and therefore, it is decision on facts similar to facts in the later case, though not necessarily with exactness or exactitude that determines which case should serve as a judicial precedent to the latter case. Let me, for the avoidance of falling into any error paraphrasing the dictum of that legal colossus, Oputa JSC., (God bless his soul) on the issue as to when a decision would constitute a binding precedent, reproduce in verbatim his lordship’s view in Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (Pt. 250) 1, as follows;

“I think it ought to be obvious now, that it is the facts and circumstances of any given case that framed the issues for decision in that particular case. Pronouncement of our Justices……….. must therefore, be inextricably or intimately related to the facts of the given case”

See also Okafor V. Okafor (supra) @ pp. 171 – 172; Usman V. Umaru (supra) @ p. 337; Young V. Bristol Aeroplane Co Ltd. (supra) @ p. 300. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

PETITION – WHETHER OR NOT A VALID PETITION MUST BE WITHIN THE AMBIT OF THE ELECTORAL ACT

I agree with the apt submission of the Appellant’s counsel that for an Election Petition to be valid within the contemplation and ambit of the Electoral Act 2010 as amended it must contain at least one of the four grounds as specified in Section 138(1)(a) – (d) of the Electoral Act 2010 as amended. In Law therefore, a valid ground within the ambit of Section 138(1)(a) – (d) of the Electoral Act 2010 as amended is a condition precedent and thus a sine qua non for the validity of an Election Petition, falling which such an Election Petition is incompetent and liable to be struck out. See Buhari V. Obasanjo (Supra) @ p. 10. See also Yusuf V. Obsanjo (Supra) @ p. 20; Ojukwu V. Yar’Adua (Supra) @ p. 71; Hope Democratic Party V. INEC (Supra) @ p. 71. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

JUDGMENT – DETERMINATION OF THE POSITION OF THE LAW WHERE THERE ARE MORE THAN TWO JUDGES

Having taken time to read through all the decided cases relied upon by counsel to the parties on this salient question, I have come to the conclusion that in determining the position of the law in a judgment of a Court consisting of more than two judges, the law is that it is the aggregate of the concurring judges that represent the correct position of the law and the opinion of the Court and not the opinion of the dissenting judges, which ought not to be taken into computation of the number of concurring judges whose opinion if majority would become the majority opinion of the Court, not withstanding which judge wrote the lead judgment but whose opinion on the issue if not in line with the opinion of the majority of the concurring judges would have become the minority opinion. See AG. Abia State V. AG. Federation & Ors. (2002) FWLR (Pt. 101) 1419. In OSIEC & Anor V. Action Congress (2011) All FWLR (Pt. 567) 222 @ p. 691, Tabai JSC., had put this issue succinctly thus:

“Where however, all the judges fail to agree on the resolution of the issue and the ultimate decision on the rights or obligations of the parties, then the decision of the majority (made up of the lead and concurring opinions) represent the judgment of the Court or Tribunal, which alone is binding on the parties”

PER – BIOBELE ABRAHAM GEORGEWILL, JCA

JUDICIAL PRECEDENT – A COURT IS BOUND TO ABIDE BY THE DECISION OF A SUPERIOR COURT ON SIMILAR CASES

In the circumstances, therefore, I feel bound to abide by the pronouncements of Tobi JSC., in his concurring judgment, specifically dealing with ground one of the Petition of the Appellant in that case, which is similar to the sole ground in the Petition of the 1st and 2nd Respondents in the instant appeal, vis a vis the provisions of Section 145(1)(b) of the Electoral Act 2006, which is impari materia with Section 138(1)(b) of the Electoral Act 2010 as amended, which is under consideration in this appeal. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

PETITION – A PETITIONER MUST BASE HIS PETITION WITHIN ANY FOUR GROUNDS AS PRESCRIBED BY SECTION 138 (1)(a) – (d) OF THE ELECTORAL ACT 2010 AS AMENDED

The law is that a Petitioner, such as the 1st and 2nd Respondents, is obligated to found or base his Petition within the ambit of any of the four grounds as prescribed by Section 138(1)(a) – (d) of the Electoral Act 2010 as amended, failing which such a Petition is rendered incompetent. A Petitioner cannot, in law, on his own volition go outside the grounds as prescribed by Section 138(1)(a) – (d) of the Electoral Act 2010 as amended, neither does he have the power or liberty to add to or subtract from the grounds provided specifically in Section 138(1)(b) of the Electoral Act 2010 as amended, which has been interpreted by the Supreme Court to be restricted to “non compliance with the Electoral Act 2006 as amended” and not extended to cover “non compliance with the 1999 Constitution”. By implication, it is my view that it is also not extended to cover “non compliance with Guidelines and Regulations for the conduct of 2015 General Election and the Manual for Election Officials 2015” as was relied upon as the sole ground in the Petition of the 1st and 2nd Respondents in this appeal. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

RULE OF INTERPRETATION – THE DOCTRINE OF EXPRESSIO UNIUS EXCLUSION ALTERIUS

The law is well settled that where a Statute or Rules of Court names specific things amongst many other possible alternatives, the intention of the law makers is that those things not named are not intended or included but rather excluded. This has found expression in the Latin Maxim: “Expressio unius est exclusion alterius.” See Udoh V. Orthopedic Hospital Management Board & Anor (1993) 7 SCNJ (Pt. 2) 436 @ p. 443 per Karibi – Whyte JSC. See also Military Governor of Ondo State V. Adewunmi (1988) 3 NWLR (Pt. 82) 280; Ogbunyiya V. Okudo (1979) 6 – 9 SC. 32. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

PERVERSE JUDGMENT – WHEN IS A DECISION OF COURT PERVERSE

In law, a decision or finding or conclusion reached is perverse if it does not flow from the established facts or if it involves a misapplication or misconception or misapprehension of the law to the established facts or if it takes into consideration matters extraneous to the facts placed before it. See Obajimi V. Adeoti (2008) 3 NWLR (Pt. 1075) 1 @ p, 19. See also Matanmi & Ors. V. Dada & Ors. (2013) WRN 1; Nwosu V. Board of Custom & Excise (1988) 5 NWLR (Pt. 93) 27; Nneji V. Chukwu (1996) 10 NWLR (Pt. 378) 265; Odofin V. A yoola (1994) 11 SC 72..

In CSS Bookshop Ltd. V. Regd. Trustee of Muslim Community in Rivers State (2006) 4 SCM 310, where the Supreme Court pointed it succinctly thus:

“A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amounts to miscarriage of justice. In such a case an Appellate Court is bound to interfere with such a decision and to set it aside” PER – BIOBELE ABRAHAM GEORGEWILL, JCA

PETITION – WHETHER OR NOT A VALID GROUND IN A PETITION WITHIN THE SCOPE OF SECTION 138 (1) (a) –(d) OF THE ELECTORAL ACT IS A CONDITION PRECEDENT TO THE LEGITIMACY OF AN ELECTION PETITION

Section 138(1) (a) and (b) of the Electoral Act state quite categorically that an election can be questioned on only two grounds, which are: (1) that the election was invalid by reason of corrupt practices; or (2) non-compliance with the provisions of this Act. The 1st and 2nd Respondents however, in paragraph 7 of the Petition, questioned the election on one of these grounds, i.e. non-compliance, and then proceeded to include other extraneous grounds not know to the substantive law as follows:

“7. Your Petitioners state that the election was characterised by substantial non-compliance with the provisions of the Electoral Act 2010 as amended, the Guidelines and Regulations for the conduct of 2015 Election and Manual for Election Officials 2015 which have substantially affected the result of the election.” (Emphasis mine)

It is the law that a valid ground in a Petition within the scope of Section 138(1) (a)-(d) of the Act is a condition precedent to the legitimacy of an Election Petition. See Ojukwu V Yar’adua (2009) 4 NWLR (Pt. 941) 1 per Niki Tobi, JSC; & Buhari V Obasanjo (2005) ALL FWLR (Pt. 273) 1. The law as expatiated in these decisions is that a party has no right to expand the wordings of the Statute in bringing his election petition. Thus, by the addition of the words “…the Guidelines and Regulations for the conduct of 2015 Election and Manual for Election Officials 2015…” the Appellants have, without authority, no doubt expanded the provision of Section 138(1) (a) and (b) of the Electoral Act. PER – JUMMAI HANNATU SANKEY, J.C.A

ELECTION PETITION – WHETHER OR NOT ELECTION PETITIONS ARE SUI GENERIS

Election Petitions are sui generis. See Abubakar vs. INEC (2004) 1 NWLR (Pt.854) 207; Jemide vs. Harriman (2004) All FWLR (Pt.233) 1765 at 1778 paragraphs “B”-“C”. PER – JOSEPH TINE TUR, JCA