Whether Inadequate Payment of Security for Costs Renders a Petition Incompetent

CASE TITLE: NYA-ETOK & ORS v. INEC & ORS (2023) LPELR-60970 (CA)

JUDGMENT DATE: 18TH AUGUST, 2023

JUSTICES: MUHAMMED LAWAL SHUAIBU, JCA
HABEEB ADEWALE OLUMUYIWA ABIRU, JCA
ABDUL-AZEEZ WAZIRI, JCA

DIVISION: ABUJA

PRACTICE AREA: ELECTION PETITION

FACTS:

This appeal is against the decision of the Akwa-Ibom State Governorship Election Petition Tribunal delivered on the 12th day of June, 2023.

The case involves Petition No. EPT/AKW/04/2023, where, during the hearing on June 12, 2023, the Tribunal raised concerns about the Appellants’ compliance with paragraph 2 of the First Schedule to the Electoral Act, 2022, specifically regarding security for cost. The Tribunal, unsatisfied with the explanation provided by the Appellants’ counsel, summoned the Tribunal’s secretary to clarify the payment made by the petitioners. It was confirmed that the petitioners paid only one million Naira, and the Tribunal then called on the respective counsels to address the issue.

In a bench ruling, the Tribunal cited paragraph 2(4) of the First Schedule of the Electoral Act, 2022, and concluded that the non-compliance with the security for cost provision rendered the petition incompetent. The Tribunal determined that, due to the inadequacy of security, there was effectively no petition before them to proceed with. Dissatisfied with this decision, the Appellants filed this appeal.

ISSUE(S) FOR DETERMINATION:

The appeal was determined on:

“Whether or not the trial Court (Tribunal) was right when it dismissed Petition No. EPT/AKW/GOV/04/2023 on the sole ground of inadequate payment of security for cost.”

COUNSEL SUBMISSIONS:

The Appellants’ counsel referenced Paragraphs 2(1) and 40 of the First Schedule to the Electoral Act 2022, asserting that the purpose of paying security for cost is to facilitate the petitioners’ case. Counsel argued that the discovery of non-payment or inadequate payment should lead to a temporary halt in proceedings until the irregularity is rectified, citing NWAWUBA & ANOR v. OKAFOR & ANOR (2015) LPELR – 260. The counsel suggested that the Tribunal ought to have directed the Appellants to pay any outstanding balance to enable further hearing instead of dismissing the petition.

The 1st Respondent’s counsel contended that, given the Appellants’ decision to join four candidates as Respondents, they must bear the burden of paying one million Naira for each Respondent. The counsel argued that since the petitions cannot be separated, the tribunal’s prudent decision was to dismiss the petition.

On behalf of the 2nd Respondent, it was argued that the Appellants’ payment was grossly insufficient under the Electoral Act and the Judicial Proceedings Practice Directions. The counsel emphasized that security for cost covers various aspects, and non-payment renders the petition deemed not filed.

The 3rd Respondent’s counsel supported the argument that the money paid was grossly insufficient, stating that the law does not permit partial payment of security for cost. The counsel asserted that failure to comply with the mandatory provisions of the Electoral Act renders the filing of the petition incompetent, challenging the applicability of NWAWUBA & ORS V. OKAFOR & ORS to the current case.

Counsel to the 9th Respondent argued that the Appellants’ non-payment of adequate security for cost is a serious omission that deprives the court of jurisdiction and renders the petition incompetent.

DECISION/HELD:
The appeal was allowed.

RATIO:
ELECTION PETITION – ORDER FOR SECURITY FOR COSTS: Effect of inadequate payment of security for costs

“The fulcrum of the parties’ contention in the main appeal is non-payment and/or insufficient payment of security for cost in the election petition. While the Appellants contend that it is a mere irregularity that is curable, the Respondents maintained that being a breach of paragraph 49 of the First Schedule to the Electoral Act, 2022, it affects the competence of the petition.

Be that as it may, paragraph 2(1) of the First Schedule to the Electoral Act 2022 provides that at the time of presenting an election petition, the petitioner shall give security for all costs that may become payable by him to a witness summoned on his behalf or to a respondent. Subparagraph (4) thereof explicitly states that non-payment of security for costs shall stall further proceedings on the petition.

Furthermore, paragraph 3 of the Election Judicial Proceedings Practice Directions, 2023, makes provisions for a deposit of N500,000.00 by the petitioner to the tribunal or court as security for cost pursuant to paragraph 2 of the First Schedule to the Electoral Act, 2022, aforesaid. Again, the petitioner shall also deposit an additional N500,000.00 to make up for the cost of service of notices, registered postings and any other expenditures which may be occasioned by the petitioner. Parties are ad idem that by virtue of paragraph 49 of the First Schedule to the Electoral Act 2022, a petitioner shall pay a total of N1,000,000.00 (One Million Naira) for each candidate and thus the Appellants in the instant case, who only paid N1,000,000.00 (One Million Naira) for five candidates, did not pay the sufficient amount required by law. Thus, the only issue that is now in contention is the consequential effect of the insufficient payment of security for costs.

In both the cases of EMESIM v. NWACHUKWU (1993) 3 NWLR (PRT 596) 590 and OBIEKWE v. OBI (2005) 10 NWLR (PRT 932) 60, the issue in contention before this Court was failure to pay the requisite filing fees for the election petition, wherein it was held that the same is not a mere irregularity that can be cured. The cases that are on all fours with the present case are those of BIYU V. IBRAHIM (2006), 8 NWLR (PRT 981), 1 AT 50, and NWAWUBA & ANOR v. OKAKAFOR & ORS (2015) (supra), where the Court emphatically held that where the non-compliance related only to payment of security for costs, that is considered an irregularity that could be cured. I therefore have no hesitation but to subscribe to the above view based upon the clear and unambiguous provisions of paragraph 2(4) of the First Schedule to the Electoral Act, 2022, which provide that the non-compliance therein merely stalls further proceedings on the election.

This implicitly means that on the discovery of non-payment and/or insufficient payment of security for costs, the proceedings are temporarily suspended until the same is paid or until the Tribunal orders otherwise. That being the case, the lower tribunal was therefore wrong to have dismissed the petition.” Per Shuaibu, J.C.A.

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