ANTHONY OLUFUNSO WILLIAMS V. BOLA AHMED TINUBU & ORS. (2003)

Background

This appeal arose from the 2003 Lagos State governorship election. Anthony Olufunso Williams, who contested on the platform of the Peoples’ Democratic Party, challenged the return of Bola Ahmed Tinubu as Governor of Lagos State. Williams alleged that Tinubu was educationally unqualified and constitutionally disqualified under section 182 of the Constitution of the Federal Republic of Nigeria, 1999. He contended that, once Tinubu’s votes were treated as invalid, Williams had obtained the highest number of lawful votes and ought to be declared elected.

The election petition was met by preliminary objections from Tinubu and the electoral respondents. They argued, among other things, that the petition was incompetent because it had not complied with mandatory provisions of the Electoral Act, 2002, particularly the requirements concerning the contents and signature of an election petition. The Governorship and Legislative Houses Election Tribunal upheld the objections, dismissed the petition, and went further to confirm Tinubu’s election as valid. Williams appealed to the Court of Appeal.

Issues

1. Whether the petition complied with paragraph 4(3)(b) of the First Schedule to the Electoral Act, 2002, which required an election petition to be signed by the petitioner or the solicitor named at its foot.
2. Whether the Court of Appeal could admit documents marked exhibits TA1 and TA2 as supplementary or additional records to establish that the original petition had been signed.
3. Whether affidavit evidence alleging non-signature, which was not answered by a counter-affidavit, could properly be relied upon at the interlocutory stage.
4. Whether the preliminary objection contained in the respondent’s brief was properly before the appellate court under Order 3 rule 15 of the Court of Appeal Rules, 2002.
5. Whether the tribunal acted properly in dismissing the petition and confirming the respondent’s election without hearing the petition on its merits.

Ratio Decidendi

By a majority, the Court of Appeal dismissed the appeal. The majority held that paragraph 4(3)(b) of the First Schedule to the Electoral Act used the word “shall” in a mandatory sense. Signing the petition was therefore a condition precedent to the existence and competence of the petition. A petition bearing only a solicitor’s stamp, without an actual signature, was legally worthless and could not confer jurisdiction on the election tribunal.

The majority further held that affidavit evidence is evidence before a court. Where material averments in an affidavit are not contradicted by a counter-affidavit, they are treated as admitted and may be relied upon. The respondents’ affidavit stated that neither Williams nor his solicitor had signed the petition and that counsel had merely placed a stamp on it. Since Williams did not file a counter-affidavit, his counsel’s oral submission that the allegation should not be believed could not substitute for sworn evidence. The burden shifted to Williams to disprove the assertion.

The court also refused the application to introduce exhibits TA1 and TA2. An appellate court is bound by the record transmitted from the lower tribunal and cannot contradict, supplement, alter or vary it by importing documents that were not before the tribunal. The proposed documents would have introduced a fresh issue and fresh documentary evidence at the appellate stage. The applicant had known of the signature challenge before the tribunal and had failed to produce the documents or seek appropriate relief there.

Court Findings

The court struck out the preliminary objection raised in the first respondent’s brief because the procedural requirements of Order 3 rule 15 were not satisfied. A respondent intending to rely on a preliminary objection was required to give the appellant three clear days’ notice before the hearing and file the notice with the Registrar. Incorporating the objection merely in a brief was insufficient. The court emphasized that express and mandatory procedural rules could not be disregarded.

The majority distinguished the secretary’s statutory duty to compare and certify copies of a petition from the petitioner’s independent duty to ensure that the petition itself complied with the signature requirement. Certification of copies did not cure the absence of a signature on the original. The majority also rejected reliance on the presumption of regularity because the regularity of the filing had specifically been challenged and the appellant failed to answer the challenge with evidence.

Ikongbeh JCA dissented. He considered that the combined effect of paragraphs 3(2), 3(3), 4(3)(b), and 7(1)(c) of the First Schedule meant that the original petition, rather than every copy served or certified, was required to be signed. In his view, a certified copy carrying a stamp indicating that the original had been signed could be valid if the original was in fact signed. He also considered that the tribunal’s conclusion was not properly supported by the record and that the tribunal should not have confirmed Tinubu’s election without hearing the petition on its merits. He warned against allowing technicalities to prevent judicial investigation of allegations affecting the public interest in an election.

Conclusion

The majority concluded that the petition was incompetent because the statutory signature requirement had not been proved to have been satisfied. The appeal was dismissed, with costs awarded to the respondents. The tribunal’s dismissal of the petition was upheld, although the majority’s reasoning treated the signature defect as sufficient to dispose of the appeal without examining the substantive allegations of qualification, disqualification, or abuse of process.

Significance

The decision illustrates the strict treatment historically given to election-petition procedure in Nigeria. It confirms that mandatory statutory language, especially the word “shall,” may create a jurisdictional condition precedent. It also underscores the importance of responding to affidavit evidence with a counter-affidavit and the limited role of an appellate court in receiving fresh evidence or reconstructing the record. At the same time, the dissent highlights the competing constitutional and public-interest concern that election disputes should ordinarily be decided on their merits rather than terminated through avoidable technical objections.