In The Court of Appeal

(Enugu Judicial Division)

On Thursday, the 4th day of March, 1999

Suit No: CA/E/5M/99

Before Their Lordships

 Between

 And

GALADIMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Anambra State Local Government Election Tribunal which sat at Awka on the 19th December, 1998.

The said tribunal struck out the petition in the circumstances of this case for failure by the petitioner/appellant to pay adequately the prescribed fees on presentation of the petition.

The appellant and the 1st respondent were the candidates in the run-off election for the chairmanship of the Ogbaru Local Government Council Anambra State held on 19th December, 1998. The 1st respondent was declared elected by the 10th respondent. The appellant, being aggrieved by the declaration of the 1st respondent as the winner of that election, presented his petition before the Election Tribunal, Anambra State on 31st December, 1998. The tribunal struck out the petition on the ground that the appellant underpaid the filing fee by the sum of N200.00.

Dissatisfied, the appellant filed one original ground of appeal and upon an application which was granted by this court on 25/2/99 filed five additional grounds of appeal with the particulars as follows: 

Ground 1 - Error-in-law

The learned members of the tribunal erred in law and thereby occasioned a gross miscarriage of justice when they struck out the petition on the circumstances of this case for failure by the petitioner/appellant to pay the prescribed fees, after presentation of the petition.

Particulars of error

i. Upon presentation of the petition, the petition was duly assessed and the petitioner/appellant paid what he was assessed to pay. 

ii. The petition having been duly presented and certain sum of money extracted as filing fees, non-payment of the exact fees ought not, in the circumstances of the case render the entire process a nullity. 

iii. The petitioner followed the previous practice direction of the Court of Appeal which was to present the fee at the High Court Registry for transmission to the registrar. Both transmissions were accomplished within the time stipulated for presentation of the petition.

The 5 additional grounds of appeal with the particulars are as follows: 

Ground one

The learned members of the Anambra State Election Tribunal erred in law in striking out the election petition without a motion by any of the respondents, contrary to section 87(3) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998.

Particulars of errors

i. At the hearing of the Election Tribunal on 19th January, 1999, counsel for the petitioner submitted that the petition was competent and asked for adjournment to submit other receipts of payments made by the petitioner. 

ii. Counsel for the 1st respondent "objected", contending that the receipts before the tribunal showed that the "filing fee" had not been fully paid, and that the petition was invalid by reason of the under-payment. He then "submitted" that the petition should be struck out.

iii. After considering submissions of counsel on both sides, the Election Tribunal then ruled that "default of payment of filing fees fully render the election petition incompetent," and proceeded to strike it out on that ground. 

iv. There was not before the Election Tribunal a motion supported by affidavit, by any of the respondents in terms of section 87(3) of the Decree and Order 32 of the Federal High Court (Civil Procedure) Rules praying the Election Tribunal to strike out the petition. 

Ground two

The learned members of the Anambra State Election Tribunal erred in law in ruling, contrary to the clear injunction of para.50(1), schedule 5 to the Decree, that underpayment of what the tribunal called "filling fees", not being security for costs or the fee for the service, publication and certification of the election petition required by paras. 3 and 4(4), schedule 5 respectively, renders the election petition void and incompetent, and also attracts the specific sanction that "the election petition shall be deemed not to have been received,"

Particulars of error

i. The Election Tribunal had said in its ruling that "default of payment of filing fees fully render the election petition incompetent; and the election shall be deemed not to have been received. The word 'shall' is mandatory, unless we decide otherwise."

ii. The petitioner paid a total of N3,420 within the time prescribed by the Decree for presenting a petition. 

iii. Of this amount, N3,000 is the deposit prescribed by para.3(2), schedule 5, as security for costs. 

iv. The remaining N420 covers the fee prescribed by para. 4(4), schedule 5, as the fees for the service, publication and certification of the election petition, leaving a balance which is insufficient to cover the other requisite fees under para. 37, schedule 5 - hearing fee and filing fee strictly so-called.

v. The specific sanction prescribed by para. 4(4), schedule 5, that "the election petition shall be deemed not to have been received, unless the Election Tribunal otherwise orders" applies only to non-payment of the fees for the service, publication and certification of an election petition.

vi. By para.50(1), non-payment or under-payment of the other requisite fees (hearing fee and filing fee strictly so-called) shall not render an election petition void, unless the Election Tribunal so directs.

Ground three

The learned members of the Election Tribunal erred in law in making the under-payment of "filing fee" under para. 37, schedule 5, the reason for the exercise of the power given to it countermand the injunction of para.50(1), schedule 5, by directing that the consequence of nullity of the petition shall nevertheless follow when there is nothing else in the circumstances of the case to compel or justify that ruling. 

Particulars

i. The fact that part of the fees was paid to the Registrar of the High Court, Onitsha, instead of to the tribunal's secretary as required by para. 4(1) schedule 5, is irrelevant, since that is just another instance of non-compliance which, by the clear injunction of para. 50(1), shall not render an election petition void, "unless the Election Tribunal so directs."

ii. The failure of the petitioner to regularize his payments in compliance with the tribunal's order to all parties announced verbally at its call over sitting on 11.1.99 was not enough reason to strike out the petition without giving the petitioner an opportunity to explain whether in fact he heard and understood the order and, if he did, what his reasons were for not complying; certainly, the failure to comply could not have been wilful, considering that he had been so keen and anxious to meet all legal requirements to ensure that his petition would not fail on mere legal technicalities. The Election Tribunal gave no other reason derived from the circumstances of the case, strong and compelling enough to justify the countermanding of the injunction of para. 50(1), Schedule 5. Ground four

The learned members of the Election Tribunal erred in law in failing to appreciate that the discretion vested in the tribunal under para.4(4) and para. 50(1), schedule 5, is a judicial discretion which has to be exercised, not arbitrarily, vindictively or unfairly, but judicially with a view to ensuring that justice is done between the parties.

Particulars of error

i. The election petition details alleged gross electoral malpractices and irregularities, and justice demands that, as far as possible, these should be heard and determined on the merits by the tribunal. 

ii. The discretion so vested in the Election Tribunal, which was absent in the Electoral Act 1962, was intended to enable the tribunal to ensure that justice is done unhampered by undue technicalities. 

iii. The rejection of the application by the petitioner's counsel for an adjournment to enable the petitioner to take all necessary steps to regularise payment of all requisite fees is arbitrary, high-handed and unjust.

iv. The rejection of the application on the ground that the petitioner "disobeyed" the tribunal by failing to comply with the tribunal's order to all parties to regularise payment of necessary fees is vindictive. 

Ground five

The learned members of the Election Tribunal not only erred in law in striking out the election petition but have thereby, in the particular circumstances of this case, occasioned gross miscarriage of justice. 

Particulars 

i. The manifold electoral malpractices and irregularities detailed in the election petition raise serious issues deserving to be tried, and not shut out without a hearing from the seat of justice.

ii. By paying, within the time prescribed by law, the huge sum of N3,420 which represents much the greater part of the amount required by law to be paid, leaving a shortfall of only N200, the petitioner has shown a serious intention to comply with the legal requirements, and should not have been driven from the seat of justice without a hearing because of an under-payment of N200.

iii. The under-payment of N200 was not due to any fault on the part of the petitioner but was the result of a wrong assessment by the Registrar of the High Court, Onitsha, and justice requires that the learned members of the Election Tribunal should have exercised in the petitioner's favour the discretion vested in them by paras. 4(4) and 50(1), schedule 5 to the Decree.

iv. This case is thus altogether unlike the Olaniyonu case, relied on by the learned Election Tribunal, where only a paltry sum of N10 was paid within the time prescribed by law. 

v. The refusal of the application by the petitioner's counsel for an adjournment to enable him take necessary steps to regularise his payments is therefore, in the circumstances of this case, unfair and unjust.

The appellant filed his brief and formulated four issues for determination in this appeal as follows: 

"A. What are the legal effects or consequences of failure to make the payments which Decree No.36 of 1998 requires to be made at the time of the presentation of an election?

B. What coercive orders (as distinct from a declaration or direction) is an Election Tribunal empowered to make in respect of an election for failure to make the requisite payments within the stipulated frame?

C. What conditions regulate and govern the exercise by an Election Tribunal of jurisdiction to strike out or set aside an election petition under Decree No.36 of 1998?

D. Is it fair or just to strike out an election petition that discloses a serious case for trial and determination involving allegations of gross electoral malpractices and irregularities and in respect of which a total of N3,420 (Three Thousand, Four Hundred and Twenty Naira) was paid leaving a short fall of only N200 (Two Hundred Naira)?

It is pertinent now to mention here that before the appeal could be heard on 26/2/99, learned Senior Advocate for the appellant Professor Nwabueze indicated to the court that the appeal was filed on 25/1/99 within the period prescribed by the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998. He contended that the duty to determine the appeal within 30 days prescribed in paragraph 2(2) of Schedule 5 to the Decree N0 36 of 1998 is not that of the appellant but of the court. This court in its ruling of 26/2/99 considered the prevailing circumstances that made it impossible for the appeal to be heard and determined within the prescribed period of 30 days and accordingly allowed the appeal to be heard and it was adjourned to 2nd March, 1999.

Meanwhile, the 1st respondent's brief dated and filed on 1/3/99 and earlier on served on the appellant was only known to the learned Senior Advocate for the appellant on 2nd January, 1999 in the courtroom. Also the brief of 2nd-10th respondents dated 1/3/99 and filed on 2/3/99 was not served. Learned Senior Advocate for the appellant refused service of both briefs. This court ruled that since there was evidence of service of the 1st respondent's brief on the appellant, it is considered valid service whereas the 2nd-10th respondent's application to serve in the court room was refused by this court. However the learned Principal Legal Officer for the 2nd-10th respondents was allowed to briefly argue on the appellant's brief.

Four issues were formulated by the 1st respondent for determination as follows:

1. Was the petition which is the subject of this appeal properly presented to the Election Tribunal in accordance with the provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 1998 or in other words was there any petition before the tribunal?

2. If the answer to issue No.1 is in the negative has this court competence or jurisdiction to hear an appeal arising from a non existent petition.

3. If the answer to issue No.1 is in the affirmative or in other words if there was a petition before the tribunal when is a petition presented? Is it when the petitioner takes his petition to the Registry or when he has paid filing fees and, other stipulated by the Decree?

4. What is the effect of failure to pay the requisite filing fee at the time of the presentation of the petition but after to the expiration of the time for presenting an election petition.

Learned Senior Advocate for the appellant, Professor Nwabueze indicated that although 4 issues have been formulated in the appellant's brief for determination, he would subsume them under 3 issues. First issue he said is on question of an Election Tribunal's jurisdiction to strike out an election petition. He submitted that tribunal's jurisdiction to strike out an election petition whether for irregularity or for being a nullity is exercisable only on the motion of a respondent in an election petition. That in the absence of a motion by a respondent in an election petition, an Election Tribunal is utterly without jurisdiction or power to strike out the petition, however blatantly incompetent the petition may be because of failure to make any of the payments required by the Decree. Any order by an Election Tribunal striking out an election petition otherwise than on a motion by a respondent is ultra-vires and void. Learned Senior Advocate for the appellant has placed reliance on the word "Motion" used in section 87(3) of the Decree and submitted that that word has to be interpreted and understood in terms of the Federal High Court, (Civil Procedure) Rules which are made applicable in election petitions para.51 of schedule 5.

He referred to rules 2-7 of Order 33 of the said rules and further submitted that section 87(3) overrides anything to the contrary contained in the rules of the prevailing circumstances that made it impossible for the appeal to be heard and determined within the prescribed period of 30 days and accordingly allowed the appeal to be heard and it was adjourned to 2nd March, 1999. Meanwhile, the 1st respondent's brief dated and filed on 1/3/99 and earlier on served on the appellant was only known to the learned Senior Advocate for the appellant on 2nd January, 1999 in the courtroom. Also the brief of 2nd-10th respondents dated 1/3/99 and filed on 2/3/99 was not served. Learned Senior Advocate for the appellant refused service of both briefs. This court ruled that since there was evidence of service of the 1st respondent's brief on the appellant, it is considered valid service whereas the 2nd-10th respondent's application to serve in the court room was refused by this court. However the learned Principal Legal Officer for the 2nd-10th respondents was allowed to briefly argue on the appellant's brief. 

Four issues were formulated by the 1st respondent for determination as follows:

1. Was the petition which is the subject of this appeal properly presented to the Election Tribunal in accordance with the provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 1998 or in other words was there any petition before the tribunal?

2. If the answer to issue No.1 is in the negative has this court competence or jurisdiction to hear an appeal arising from a nonexistent petition.

3. If the answer to issue No.1 is in the affirmative or in other words if there was a petition before the tribunal when is a petition presented? Is it when the petitioner takes his petition to the Registry or when he has paid filing fees and, other stipulated by the Decree? 

4. What is the effect of failure to pay the requisite filing fee at the time of the presentation of the petition but after to the expiration of the time for presenting an election petition.

Learned Senior Advocate for the appellant, Professor Nwabueze indicated that although 4 issues have been formulated in the appellant's brief for determination, he would subsume them under 3 issues. First issue he said is on question of an Election Tribunal's jurisdiction to strike out an election petition. He submitted that tribunal's jurisdiction to strike out an election petition whether for irregularity or for being a nullity is exercisable only on the motion of a respondent in an election petition. That in the absence of a motion by a respondent in an election petition, an Election Tribunal is utterly without jurisdiction or power to strike out the petition, however blatantly incompetent the petition may be because of failure to make any of the payments required by the Decree. Any order by an Election Tribunal striking out an election petition otherwise than on a motion by a respondent is ultra-viresand void. Learned Senior Advocate for the appellant has placed reliance on the word "Motion" used in section 87(3) of the Decree and submitted that that word has to be interpreted and understood in terms of the Federal High Court, (Civil Procedure) Rules which are made applicable in election petitions para.51 of schedule 5.

He referred to rules 2-7 of Order 33 of the said rules and further submitted that section 87(3) overrides anything to the contrary contained in the rules of the Federal High Court whose application is made subject to the express provisions of this Decree. That section 87(3) overrides any contrary provisions contained in schedule 5 to the Decree. That it is settled law that any conflict between a provision in the main body of a statute and a provision in a schedule/annexed to the statute the former prevails.

I have earlier on stated above that it is the appellant's and the 1st respondent's brief that are being considered, although the learned Principal State Counsel for the 2nd -10th respondents filed their brief, this court did not deem it just to have filed it while the court was already sitting. They did not display diligence. However appellant's brief and indeed that of the 1st respondent are quite detailed and the issues adequately formulated for the clear determination of this appeal. It is shown from onset that the learned Senior Advocate for the appellant subsumed the 4 issues and argued them together but his above submissions were in respect of the 1st and 2nd issues formulated for determination. I need not go into details reviewing the submissions of the learned counsel in this appeal since their issues formulated are more or less similar although not arranged serially. I find that the main issue for determination in this appeal is on non-compliance with the statutory provisions for payment of fees. I agree with the learned senior counsel for the appellant that four types of payment are required by the Decree to be made at the time of presentation of an election petition. Both the learned Senior Advocate for the 1st respondent and that of the 2nd-10th respondents agreed to this failure to make payment of the various statutory fees attracts different legal effects or consequences. The distinction between filing fee and the fee for service, publication and certification of an election petition is made and recognised in the case of Israel Olaniyonu v. Professor Awah (1989) 5 NWLR (Pt.122) 493 at p.504. Default of payment of filing fees necessarily renders the election petition incompetent and the petition shall be deemed not to have been received. Non-compliance with payment of filing fee under schedule 5 paragraph 37 attracts no lesser penalty than striking out the petition for being incurably defective. I do not agree with the learned Senior Advocate for the appellant that failure to pay filing fee is a procedural irregularity which can call in aid the provision of paragraph 50(1) of schedule 5 to the Decree. Paragraph 37, of the schedule is a strict and mandatory provision. Unlike paragraph 37 paragraph 3 which deals with security for costs has flexible provisions which shows that paragraph 50(1) can be invoked in aid. Paragraph 3(4) of Schedule 5 provides:

"If no security is given as required by this paragraph there shall be no further proceedings on the election petition.

I agree with the learned Senior Advocate Senator Anah, that the penalty for non-payment of security costs trivialises non-compliance and reduce it to a mere irregularity which can conveniently call paragraph 59(1) in aid to cure the irregularity. What is implied in paragraph 3 of schedule 5 is clear and such implication is absent in paragraph 37. Rather what is implied in paragraph 37 is that paragraph 50(1) cannot be invoked to help the petitioner who failed to pay adequate or at all filing fee at the time of presentation of the petition: 

It is paragraph 4(4) of schedule 5 to Decree 36 of 1998 that provides for the payment of fees for service, publication of the petition and for certifying copies. The penalty for non-payment is that the election petition shall be deemed not to have been received unless the Election Tribunal otherwise orders. I am of the opinion that the penalty in this case suggests or implies that non-compliance is not a mere irregularity which can be cured by paragraph 50(1) of the 5th schedule.

There is one issue which have been glossed over in one or two petitions we have dealt with in this division in which no sufficient attention has been paid. This is again raised by the appellant in the appeal.

I have touched on this issue briefly above, It is the appellants' grouse against the tribunal that although there was no formal application by way of a motion to set aside this petition for being a nullity and yet it was struck out on an oral application. In the instant case, like in the other appeal the argument is not predicated on an existing ground of appeal. Even though it may appear a mere academic exercise but legal authorities abound that matters which border on jurisdiction of the court can be raised suo motu by the tribunal or orally by the counsel. Once raised it must be determined first. This is what happened in this case like in the others. The practice and procedure in the Federal High Court apply in the Election Tribunal see paragraph 51 of Schedule 5. A challenge on irregularity and competence of a matter or an action ought to be determined first before any further steps are taken. See Ebiteh v. Obiki (1992) 5 NWLR (Pt.243) 599 at 602. Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 1353; Galadima v. Tambai (1994) 8 NWLR (Pt.365) 747 at 749.

Issue D is on fairness or justice of the striking order by the tribunal in the particular circumstances of the present case. Learned Senior Advocate for the appellant, Professor Nwabueze has submitted that this issue raised is crucial in the determination of this appeal as it is to the entire system of administration of justice in this country. He has asked to know how fair or just to strike out an election petition which discloses a serious case of alleged gross electoral malpractices and irregularities and in respect of which a total of N3,420 was paid, leaving a short fall of only N200. He asks further: "Can any system of administration of justice which results in the smothering without hearing and determination on the merits, or an election petition alleging gross malpractices and irregularities be described as fair or just in a democratic society under the rules of law especially as this is not just one isolated case  but 34 elections out of 53 known to have been struck out by the same Election Tribunal in Anambra State for non-payment or inadequate of statutory fee i.e. filing fee. Learned Senior Advocate submitted that Israel Olu-Olanivonu v. Professor Awah and ors. (1989) 5 NWLR (Pt.122) 493 (supra) which the tribunal relied on provides no authority for the tribunal's decision in lead judgment of Akanbi, J.C.A. (as he then was) rested entirely on the non-payment by the petitioner of security for costs and fee for service, publication and certification of the election petition. Secondly he submitted that the authority of Olaniyonu's case was one where not only were security for costs and the fee for service, publication and certification of the petition not paid at all, but also no payment of any kind was made by the petitioner at the time of presenting the petition, except for a paltry sum of N10.00. He submitted that the third feature that distinguishes this appeal from Olalliyonu's case is that the striking out order in that case was made by the High Court which has the authority to hear and determine election petitions under the Local Government Election Decree No. 37 of 1987. Learned Senior Advocate submitted that the High Court as a superior court of record, might well be said to have inherent power to strike out a suit or petition even in the absence of a motion supported by affidavit. That an Election Petition Tribunal has not such inherent power. That its power to strike out a petition for whatever reason however fundamental is statutorily limited by the requirement that it can only be exercised on a motion by a respondent. I seem to agree with the learned Senior Advocate for the 1st respondent that these submissions look or appear to be academic arguments. They are not predicated on proper ground of the appeal. This argument is being introduced for the first time. I hold that this issue is incompetent as this court does not have the lower tribunal's opinion on the matter which was not canvassed at lower tribunal. The opinion held by learned Senior Advocate for the appellant, that if the election petition was being tried by a High Court, it could strike out the petition in the absence of a motion supported by affidavit. I think motion means an application which can be oral or written depending on the peculiar nature of the case. If for instance, you have an application which is based on law only, or on undisputed facts which both parties and sometimes, the court accepted application can be made orally. I do not consider Election Petition Tribunal an inferior court as assumed here, because it was constituted by High Court Judges. An appeal from the tribunal goes to the Court of Appeal as well as the decision of the High Court. Since the issue of the competence of the petition came about at the early stage the tribunal is empowered under paragraph 27(1) of schedule 5 to the Decree to dispose of the matter like a judge of the Federal High Court. Section 87(3) talks of motion only it does not say motion supported by affidavit unlike paragraph 44(4) of the schedule which provides that every application for enlargement or abridgement of time shall be supported by affidavit.

The appeal is against the decision of the tribunal declining to exercise its jurisdiction. 

Principles enunciated in the case of Madukolu II v. Nkemdilim (1962) 2 SCNLR 341; (1962) All NLR 587 at 595 and those in Ejiofodomi v. Okolikwo (1982) II Sc. 74 are that a court is competent when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. The court or tribunal can only exercise jurisdiction when the case that comes before it is initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Default in payment of fees as required particularly in paragraph 37(1) of 5th schedule to Decree No.37 of 1998 clearly deprives the lower tribunal of jurisdiction. 

The issue of substantial justice or fairness raised by the appellant does not so much arise. In the election petition case of Abdullahi v. Gava and Ors. LREC at 144 at 159. Oduwo, J.C.A. Stated thus:

"It therefore goes without saying that if a court lacks jurisdiction the question of doing substantial justice does not come into the show since defect of jurisdiction relates to embarking on the case and not in miscarriage in the course of it, or to the correctness of the decision.

In Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 369 Karibi-Whyte J.S.C. stated thus:

"The competence vel non of a court is a legal condition which cannot be waived by the parties. Where the condition of want of competence exists, it is a fundamental defect fatal to adjudication. It is not a mere irregularity which can be cured by consideration of substantial justice."

Also in an election case, decided in this court, in Nnonye v. Anyichie (1992) 2 NWLR (Pt.101) 110 at p.116 per Uwaifo, J.C.A.,

"The question of lack of jurisdiction or competency in law can sometimes be clear on looking at the record or process relating to the proceedings and the legislation governing such proceedings that the court either lacks jurisdiction in the subject matter or the proceedings are so incurably incompetent that the irregularity affects the jurisdiction of the court to hear or proceed with them."

At page 118 he said:

"Failure to comply with statutory provision is fatal and in such cases the court has no jurisdiction to entertain such petition." 

I may say this lightly but it is true, that reading through Decree No.36 of 1998 one can see deliberate policy of the present regime to see to it that the election petition and appeal should be disposed of within a specified time during this transition period ending 29th May, 1999 when the civilian administration will be ushered in. This court had this thinking in Iruobe v. Oni and anor (1989) 2 NEPLR 101 at 107 where my learned brother, Achike, J.C.A (as he then was) said:

"So long as the provisions of the enactment are plain and unambiguous the court is obliged to construe them in their ordinary senses even though their effect may affect various citizens differently; this is the more so if such effect is a deliberate policy of the enactment." 

(Emphasis is mine).

In the circumstances on the whole I consider that this appeal lacks merit and it is hereby dismissed. I award N2,500 costs in favour of the 1st respondent and N1,500 as costs to the remaining respondents.

FABIYI, J.C.A.: I had a preview of the judgment just handed down by my learned brother, S. Galadima, J.C.A. I completely agree with his reasoning and conclusion which I adopt as mine. The appeal lacks merit and is hereby dismissed. I abide by the order relating to costs in the lead judgment.

MUHAMMAD, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Galadima, J.C.A. I agree with his reasoning and conclusion and do abide by orders as to cost as well.

Appeal dismissed.

     Appearances