Chief Chibuzor N. Ziggy Azike Ksc V. Chief Ifeanyi Godwin Ararume & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

ABOYI JOHN IKONGBEH, J.C.A. 

This is an appeal by the petitioner before the National Assembly/Governorship and Legislative Houses Election Petitions Tribunal, sitting at Owerri. The Tribunal, at the instance of the 1st respondent, struck out the petition on grounds of vagueness and non-joinder of parties.

Chief M.I. Ahamba, S.A.N., in the appellant’s brief has formulated three issues for determination, Chief Bon. Nwakanma, S.A.N. in the 1st respondent’s brief took objection to issue 2 on the ground that it has not arisen from any ground of appeal. It is an objection well taken. The issue raises the question whether the 1st respondent was competent to raise objection on behalf of other respondents. Chief Ahamba readily conceded the point in the appellant’s reply brief. The remaining two issues in the two briefs are identical but the first issue as framed in the appellant’s brief brings out the matters in controversy more clearly than as framed in the 1st respondent’s brief. The reverse is, however true as regard the second issue.

I will, therefore set out the first issue in the appellant’s brief and the second one in the 1st respondent’s brief. The two read:
“a) whether the Notice of Preliminary Objection before the Election Petition competent.”
“b) Whether the petition was not incompetent on the basis of vagueness of pleadings and non-joinder of parties (Grounds four, five and six).
I propose to take the second issue first.

The appellant’s complaint here is two-fold. First is said that the Tribunal was wrong in its conclusion that paragraphs 11(b) and (c). 14(i) and 14(ii)(a) and (b) and 15 were vague and ought to be struck out. Secondly, it is complained that the Tribunal erroneously struck out the petition on the ground that necessary parties had not been joined.   `

On the first complaint Chief Ahamba S.A.N. for the appellant, submitted that the pleadings in the paragraphs specified were quite adequate and in compliance with the rules of pleadings. Learned senior counsel pointed out that the appellant in some of the paragraphs of the petition complained of even went so far as to specify some of the details of the conduct of the 2nd respondent complained of. Moreover, senior counsel argued, the very fact that the respondents responded intelligibly to the allegations contained in the affected paragraphs was clear evidence that they quite understood what the allegations were.

In answer, Chief Nwakanma, S.A.N. for the respondent by way of preliminary observation, pointed out that ground 4 of the grounds of appeal from which this issue has been formulated did not raise any complaint in respect of the striking out of paragraphs 11(b) and 14(ii)(d).

I must say straight away that these minor points made here would not matter much if the decision of the Tribunal to strike out the paragraphs was erroneous and did not justify the striking out of the entire petition. I shall, therefore, concentrate on seeing whether or not those paragraphs were properly struck out for vagueness.

On these paragraphs senior counsel for the 1st respondent insisted that the decision of the Tribunal was unimpeachable. According to counsel, paragraph 14(i), (ii)(a), (c) of the petition contain only a general and self-opinionated account of the conduct of the election without regard to the requirement of either order 26, rule 4(1) and (4) of the Federal High Court (Civil Procedure) Rules 2000, or paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2002.

The question here is whether the affected paragraphs are indeed vague as held by the tribunal. How did the Tribunal deal with the question?

At pages 105 – 106 the tribunal observed and held:
“In arguing grounds 5(a) and (b) of the Notice of Preliminary Objection learned senior counsel to the 1st respondent argued that paragraphs 14(1) and sub-paragraph (a), (b), (c) and (d) are vague and should be struck out. He contended that those paragraphs offended rule of pleadings as stipulated in Order 26, Rule 4(4) of the Federal High Court Rules 2000, and that they were all in breach of the law. He stated that the manners of pleadings as contained in those paragraphs are contrary to rule of pleading. He relied on Kauri v. Dalori supra to the effect that a petitioner on election petition must plead necessary particulars in support of material averments of facts in the petition.

But in a swift reaction Chief Ahamba, S.A.N. contended very strongly that those paragraphs of the petition are not at all vague. He referred us to section 67(3) of the Electoral Act, which states that the polling agents shall certify the election materials from the office and that the I.N.E.C. Officer in charge of that was the Electoral Officers in the local government areas. He submitted that by sections 151 of Electoral Act, I.N.E.C. has offices at Ward, Local Government and State levels therefore have joined I.N.E.C., as a corporate body and a person who takes responsibilities for all its officials the petitioner has pleaded adequately. He submitted that the pleading was a good one.

We have perused paragraphs 14(i), 14(ii) a-d on page of the petition and we find that paragraphs 14(i), 14(ii), (a), (b) and (d) of the petition are vague and are herby struck out.

On ground 1 of the application the learned S.A.N. for the 1st respondent argued that paragraph 11(b) and 11(c) are vaugue in that paragraph 11 offends rules of pleading. He relied on the decision of this Court in GLLHET IMS/21/2003 – Uzodinma v. Udenwa. Ruling delivered on 19th June, 2003.

Chief Ahamba, S.A.N. for the petitioner had contended that the pleadings are perfect and there is no paragraph that the (sic)vague on the contrary he believed it was the notice of preliminary objections that is vague. We have perused paragraph 1 of the petition and we are of the view that paragraphs of the petition and we find that paragraph 15 of the petition ought to be struck out for vagueness and it is struck out.”

My first observation is that the Tribunal did not assign any reason for preferring the contention by Nwakanma to that of Chief Ahamba. After setting out the contentions on behalf of the contending parties it just jumped to the conclusion that the paragraphs were vague. It made no analysis of them first.

That aside, I do not think, having regard to the complaints made in the affected paragraphs, that conclusion is justified. They read:
“11(a) The 2nd respondent failed, neglected or omitted to put the Electoral Officers, Returning Officers and Presiding Officers, who participated in the conduct of the election to the mandatory oath or affirmation as required by section 18 of the Electoral Act, 2002, thereby failing to fulfil the condition precedent to the qualification of each and everyone of them to participate in the conduct of the election. In the circumstance the petitioner pleads that all the Electoral Officers, Returning Officers and Presiding Officers who participated in the conduct of the election for the Office of the Senator representing the Imo North Senatorial Constituency on 12th April, 2003 lacked the competence to do so. Such acts of conducting election by such officers are thus null and void.
(c) The election was marred by overt malpractices, acts of violence, connivance by the agents of the 2nd respondent at the wards, local government and constituency levels during those activities, collusion with the P.D.P. and wanton illegalities as shall hereunder be arrived.
14(i) The I.N.E.C. abandoned most of its trained ad-hoc staff in favour of P.D.P. nominated personnel. Hence the crude and brutal malpractices by these agents of a biased umpire, the 2nd respondent.
(ii) The 2nd respondent manipulated, through its agents, the distribution of electoral material by:
(a) in some places undersupplying the materials to reduce the voting capacity of perceived non-P.D.P. support area;
(b) delaying the commencement of polls in some perceived non-P.D.P. support areas;
(c) failing to comply with the requirement of certification of election materials from the office to the polling station as required by law thereby making proper verification of results impossible.
(d) refusing to react to reports of poll vitiating incidents by giving the stereotype response, submit your protest and to the tribunal for redress, although the 2nd  respondent and its agents at the local government and senatorial constituency levels had the power to nullify irregular polling processes on the spot.”

It can be seen that these raise clear and unambiguous complaint against the 2nd respondent and its agents. One such complaint is that it did not do what it was supposed to do under the Act and he specified some of those things, such as not administering oath to its officials before letting them take part in the conduct of the election. He accused the 2nd respondent also of abandoning its trained officials in favour of unauthorized persons. The respondents understood these allegations perfectly well. This, no doubt, was why they did not ask for further and better particular, but instead went ahead to meet the issue made by the petitioner one by one.

Considering these facts and the other circumstances of this case I must agree with Chief Ahamba that the Tribunal was in serious error to have struck out the paragraphs of the petition that it struck out for vagueness. It should have given the appellant the opportunity to prove at the trial, if he could, the allegations he had made in those paragraphs.

On the alleged non-joinder of necessary parties Chief Ahamba pointed out that the complaint in paragraph 14 of the petition were against the 2nd respondent and its officials. The 69 of such officials who were known to have played a specific role against the interest of the petitioner were, senior pointed out joined as respondents. The matter should, therefore, have been left, in counsel’s view, to go to trial.

As to be expected, Chief Nwakanma for the 1st respondent insisted that enough presiding officers had not been joined. Accordingly to him, all the presiding officers in the senatorial district should have been joined. This, according to senior counsel was because “paragraph 12 of the petition complains that the ‘level of violence throughout the senatorial district made it impossible for a free and fair election to take place in the constituency.” This, in his view, was an allegation against all the presiding officers.

The Tribunal accepted this argument. With all due respect, it was wrong. A petitioner only needs to join persons against whose conduct in the election he has made a specific complaint. The pleading in paragraph 12 of the petition does not justify the joinder of any and every persons who had had any hand in the conduct of the election. That paragraph should have been read together with other paragraphs where specific allegations were made against any official. In any case, it is settled now that non-joinder does not necessarily lead to the striking out of the entire petition. The most severe penalty is that the petitioner will not be allowed to lead evidence against persons who should have been joined but were not. The non-joinder of A is no reason to prevent the petitioners from being allowed to lead evidence against B on the allegation he has made against the latter.

For all the reasons I have given I must hold that the appellant has made out a case for this issue to be resolved in his favour. I accordingly resolve it in his favour. I see no point in treating the first issues since this one suffices to dispose of the appeal. Even if I resolved the first issue in favour of the respondents, my conclusion on the second issue would still nullity the first one, so to speak.

On the whole, I allow this appeal, I set aside the decision of the Tribunal striking out the petition. In its place I order that the petition be remitted for hearing on the merit by the Tribunal as originally constituted as may be re-constituted by the President of this Court.

I make no order as to costs.

Other Citations: (2003)LCN/1493(CA)