Alhaji Buba Manu Mutum Biyu & Anor. V. Alhaji Abdul Aziz Ibrahim & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

The 1st appellant was a candidate of the 2nd appellant, the All Nigeria Peoples Party (ANPP) at a senatorial election which took place for the Taraba State Central senatorial seat on 12th April, 2003. The 1st respondent also contested the election on the platform of the Peoples Democratic Party, (PDP) and was declared elected. The appellants, on 15th May, 2003 filed a petition at the Election Tribunal. This was struck out in limine on the ground of failure to join necessary parties. On appeal, the Court of Appeal set aside the Tribunal’s decision striking out the petition. It ordered the petition to be remitted for hearing on its merit by another Tribunal.

The new Tribunal heard the petition and on 28/5/2004, dismissed it. Aggrieved, the petitioners/appellants have appealed to this court again.

Parties to this appeal as required by the Rules of court, have filed and exchanged briefs of argument.

The appellants’ brief filed out of time on 5/7/2004, was deemed filed on 25/11/2004 by order of this court of the same date.

The 1st respondent filed his brief on 29/11/2004 and the 2nd – 111th respondents’ filed theirs also on 29/11/2004. At the hearing of the appeal, Yakubu Ahmadu, Esq., learned counsel for the appellants adopted his brief of argument and urged the court to allow the appeal.

Y. N. Akirikwen, Esq. for the 1st respondent also adopted his brief and urged us to dismiss the appeal. For the 2nd – 111th respondents, H. M. Liman, Esq., leading Mrs. C. K. Okoli, adopted their brief and also urged this court to dismiss the appeal.

The parties to this appeal have in their briefs of argument identified issues for determination from the 6 grounds of appeal in the appellants’ notice of appeal filed on 3rd June, 2004.

For the appellants, the following 4 issues were identified:-

1. Whether the trial tribunal rightly applied section 133(2) of the Electoral Act to the petition filed by the appellants and on that ground failed to consider substantial evidence of irregularities and non-compliance established by the petitioners.
2. Whether the trial Tribunal was right in relying on section 135(1) of the Electoral Act, 2002 to uphold the election in the face of glaring irregularities and non-compliance with the Electoral Act and other guidelines prescribed for the election.
3. Whether the Tribunal was right in holding that the complaints in respect of return of votes in excess of ballot papers issued to certain ward were misdirected.
4. Whether the Tribunal was right in failing to invoke section 149(d) of the Evidence Act against the respondents for their failure to produce the ballot boxes and ballot papers when they were subpoenaed to do so.

The 4 issues for the 1st respondent are set out thus:-

1. Whether the trial Tribunal rightly applied section 133(2) of the Electoral Act, 2002 to the petition filed by the appellants and on that ground failed to consider substantial evidence of irregularities and non-compliance established by the petitioners.
2. Whether having regard to the pleadings and evidence on record the appellants have sufficiently or at all proved the alleged irregularities, malpractices and non-compliance stated in paragraphs 4 and 5 of their petition before the trial Tribunal and whether the trial Tribunal rightly applied section 135(1) of the Electoral Act, 2002 in dismissing the petition as it did.
3. Whether the trial Tribunal was right in holding that the complaints in respect of return of votes in excess of ballot papers issued to certain wards were misdirected.
4. Whether the trial Tribunal was right in ailing to invoke section 149(d) of the Evidence Act against the respondents for their failure to produce the ballot boxes and ballot papers when they were subpoenaed to do so.

For the 2nd – 112th respondents, the following 3 issues were settled:-

1. Whether the Hon. Tribunal was right when in construing section 133(2) of the Electoral Act, 2002, it held that failure to join officials of the 2nd respondent whose conducts was complained of as necessary parties to the case fatal to the appellants petition? (sic) (Relates to ground one).
2. Whether the Hon. Tribunal was right in holding that the election held in the Taraba Central Senatorial District on the 12th April, 2003 was done in substantial compliance with section 135(1) of the Electoral Act, 2002 (Relates to grounds 2, 3, 4 & 6).
3. Whether by the failure of the 2nd respondent in producing ballot boxes and papers it caused a miscarriage of justice on the appellants (Relates to ground 5).

I will at this stage set out briefly some facts relevant to the consideration of this appeal. The 1st respondent was returned on 16/4/2003 by 4th respondent/returning officer as having been elected Senator for the Central Senatorial District of Taraba State at the election held on 12th April, 2003. He was said to have scored 176,714 votes against the 1st appellant’s score of 83,279 votes. ‘The 1st respondent and the 1st appellant were the only two candidates at the election. The appellants’ first petition was struck out by the first National Assembly/Governorship and Legislative Houses Election Petition Tribunal, sitting at Jalingo, Taraba State. This was upon a motion on notice filed by the 1st respondent alleging non-joinder of certain alleged necessary parties to the petition. When this court set aside the order striking out the said petition as earlier stated and ordered the hearing and determination of the same on its merit, before another Tribunal, parties proceeded to call oral and documentary evidence. The appellants called 6 witnesses and all the respondents, 4 – 6 by the 1st respondent, and 8 by the 2nd – 111th respondents.

The grounds of the petition of the appellants relevant to this appeal are set out in paragraphs 4 and 5 thereof thus:-

4. Your petitioners state that the election under reference was marred by irregularities and malpractices and non-compliance with the Electoral Act of 2002 and other relevant laws and in particular:-

(a) Returning maximum votes (100%) of exact number of allowed registered voters in a polling unit when some registered voters of such polling units did not vote.

(b) Returning votes in polling units in excess of registered of allowed registered voters in such polling units.

(c) Returning votes in excess of the number of ballot papers issued to polling units.

(d) Scoring or crediting candidates with votes in excess of valid votes that could have been lawfully cast when allowance is made for invalid, rejected and spoilt ballot papers.

(e) Failure to record correct figures for candidates in the necessary Forms EC8A, EC8B, EC8C and EC8D and all other relevant forms.

(f) Improper collation of result.

(g) Return of votes in polling units where elections were not held at all, in spite of protest from the petitioners.

(h) Failure to follow the guidelines stated by the 2nd respondent in respect of the election by the 2nd respondent and its agents.

5. Your petitioner states that the irregularities, malpractices and non-compliance stated herein above cut across many polling units in the five Local Governments that make up the constituency namely Bali, Gashaka, Kurmi and Sardauna.

The reliefs sought are as set out in para. 9 of the petition thus:-

(a) That the 1st respondent did not win the election under reference by a majority of lawful votes cast at the said election and ought not to have been returned as duly elected.

(b) That the 1st petitioner scored the majority of lawful votes cast at the said election and ought to have been returned as duly elected.

(c) That the 1st petitioner was the candidate duly elected.

(d) In the alternative to (a), (b) and (c) above, a declaration that the said election was marred by irregularities, malpractices, and substantial non-compliance with the Electoral Act and other relevant laws and the purported election and return of the 1st respondent consequently null and void.

In the 1st respondent’s reply to the petition filed on 11/6/2003, he denied the petition. The 2nd -111th respondents also filed a reply on 12/6/03 denying the petition. They sought the dismissal of the petition.

It has been observed that the learned counsel for the appellants did not marry his issues with the grounds of appeal, so also learned counsel for the 1st respondent. Only the 2nd – 111th respondents did. For them, their 3 issues are stated to arise thus:- Issue 1 from ground 1 of the grounds of appeal.

Issue 2 – grounds 2, 3, 4 & 6 and Issue 3 – ground 5.

The issues distilled by the parties are virtually the same.

I am however unable to find where issue 4 of the appellants adopted by the 1st respondent arises from the grounds of appeal although it is related to the issues from grounds 2, 3, 4 and 6 from which the 2nd – 111th respondents’ issue 2 is raised.

I will therefore consider this appeal adopting the issues of the 2nd – 111th respondents but considering the issues of the parties together.

The issues for determination will now be considered.

Issue No. I (same for all the parties)

Parties to the appeal have raised what is in the main the same issue from ground 1 of the grounds of appeal.

It is whether the Honourable tribunal rightly construed and applied section 133(2) of the Electoral Act, 2002. Section 133(2) provides as follows:-

(2) The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.

The appellants’ grouse is that the Tribunal failed to rightly apply the section and in the process, did not consider the evidence of irregularities and non-compliance which was substantial, and was established by them.

They allege in their brief that they did not call to question the conduct or personal behaviour of any of the officers of the 2nd respondent, INEC. Rather, that their complaints were about irregularities and non-compliance, manifest on the face of the documents used for the election.

They argue that they did not call into question the character or integrity of the electoral officials as contemplated by section 133(2) of the Electoral Act and that their complaints could be determined with or without the presence of the officials.

They complain that in its judgment, the Tribunal held that the complaints of the appellants were directed at the conduct of various electoral officials who were not joined as parties and on that score, it could not consider the allegations and evidence against them, particularly that of PW2, PW4 and PW5 on over-voting and irregularities.

Learned counsel for the appellants submits that the Tribunal’s interpretation of section 133(2) of the Act is too wide and not the true intention of the legislature. He submitted that the word, “conduct” in the section must be restricted to the personal behaviour of the electoral official or his integrity and not where some irregularity or omissions on the face of the documents used in the election or some acts are noticed which constitute non-compliance with the Act. He referred to the case of Green v. Green (1987) 3 NWLR (Pt.61) 480 at 493 wherein the Supreme Court defined “necessary parties in any proceedings” as those interested in the subject matter and who in their absence the proceedings could not be fairly dealt with. He also relied on Nnamani v. Ujam (2003) 1 FWLR (Pt.190) 906 at 913 where the Court of Appeal interpreted section 133(2) and held that where there is no complaint against the conduct or any conduct of an electoral official, such officer is not a necessary party and failure to join him would not have an adverse effect on the petition.

Learned counsel concluded that it was a great miscarriage of justice on the Tribunal’s part to apply section 133(2) as it did, refusing to treat the petition on its merit.

Mr. Akirikwen, learned counsel for the 1st respondent on his issue No.1 set out paragraphs 4(a)-(h) of the appellants’ petition and pointed out that – paragraph 4(e) and (f) complain of the conduct of collation officers and/or returning officer, and 4(h), of the conduct of presiding/collation/ returning officers and agents of the 2nd respondent. He then submitted, that in an election petition, where the conduct of electoral officers amounting to irregularities, malpractices and/or non-compliance is complained of, they must be joined as necessary respondents for the petition to be competent this being the combined effect of section 133(2) and para. 47(1) of the First Schedule to the Electoral Act, 2002. Therefore, that the petition fell short of the requirement of the law – See Kallamu v. Gurin (2003) 16 NWLR (Pt.847) 493 at 498 CA ratios 1, 4, 5 & 6.

That it is settled that it would be a clear breach of the fundamental right of fair hearing of the presiding officers or electoral officer or agents entrenched in the 1999 Constitution – Section 36 not to join these officers whose conduct is the subject of the complaint in the petition – Kallamu v. Gurin (supra). That such joinder is not at the discretion of the petitioner. Uzodinma v. Udenwa (2004) 1 NWLR (Pt.854) 303 at 313 ratios 5, 7 & 8; Ikpatt v. lyoho (1999) 7 NWLR (Pt.609) 58.

Learned counsel pointed out that the effect of paragraphs 4 and 5 of the petition is that the petitioners complain of the conduct of presiding officers, several collation officers but sued only 81 presiding officers but no collation officer. He then submitted, that paragraphs 4 and 5 of petition as it touches the presiding officers not joined as respondents are incompetent and the Tribunal was right when it declined to resolve complaints touching on the conduct of these persons not joined as respondents – relying on Ajudua v. Nwogu (No.1) (2004) 16 NWLR (Pt.898) 56 at 61 -62 ratio 2; Kallamu v. Gurin (supra), Onoyom v. Egari (1999) 5 NWLR (Pt.603) 416 at 419.

That collation officers and by extension agents of the 2nd respondent fall within the definition, “any other person who took part in the conduct of the election as envisaged by section 133(2) (supra) and paragraph 47(1) in the 1st Schedule of the Act – Kallamu v. Gurin (supra)”.

Counsel referred to the evidence of PW2 and PW3 and submitted that it amounts to an admission that errors of commission or omission on Forms EC8A, EC8B, EC8C and EC8D are those of presiding officers, returning officers and/or collation officers of the respective polling units, wards or collation centers. Refers to and relies on Nnamani v. Ujam (supra); Green v. Green (supra).

He submitted that giving a restricted meaning to the word “conduct” in section 133(2) of the Electoral Act cannot be the intendment of the legislature.

That failure to join the necessary respondents as herein is fatal to the petition, having regard to the special nature of the jurisdiction of the election tribunals – See Kallamu v. Gurin (supra) etc.

For the 2nd – 111th respondents, their learned counsel H. M. Liman, Esq. offered the following submission on issue No. 1. According to him, what calls for determination is whether the Tribunal was right when it held that the failure of the appellants to join officials of the 2nd respondent whose conduct is complained about as co-respondents was fatal to their petition. He submitted that paragraph 47(1) of the First Schedule to, and section 133(2), of the Electoral Act, 2002, reveal the position of the law as to who shall be respondents to an election petition. That the Tribunal was right in its interpretation at page 332 of the records as to the effect of section 133(2) of the Act. That by paragraphs 4-6 of the petition, serious allegation of acts and omissions were raised against certain officials of the 2nd respondent at polling units and it was necessary to join them as respondents to answer the allegations raised. That it will be wrong to restrict the application of section 133(2) to personal behaviour of Electoral officials as argued by the appellants.

He pointed out that in the interpretation of section 133(2), the court has a duty to construe the intendment of the makers of the statute. See P.D.P. v. INEC (2001) FMLR (Pt.31) 2735 at 2788, (1999) 11 NWLR (Pt. 626) 200; Dantsoho v. Mohammed (2003) FMLR (Pt.150) 1717 at 1723 and 1742, (2003) 6 NWLR (Pt. 817) 457.

He further submitted, that the failure of the appellants to join the staff of the 2nd respondents as co-respondents whose acts are complained of in paragraphs 4-6 of the petition is fatal to their case by virtue of sections 133(2) and 47(1)of the Act – citing Green v. Green (supra). That it is only when no complaint is made against the conduct of any electoral officer that they are not made necessary parties to the petition – citing Kallamu v. Gurin (2003) 16 NWLR (847) 493 at 498; Uzodinma v. Udenwa (2004) 1 NWLR (Pt.854) 303 at 313; Ikpatt v. Iyoho (1999) 7 NWLR (Pt.609) 58 at 60. That non-joinder results in the court not entertaining the allegation of misconduct.

Finally, that the appellants in paragraph 5 of their petition challenged the conduct of election at 117 polling units manned by officials of the 2nd respondent. They sued only 81 presiding officers and have not complied with section 133(2) of the Act and not proved their case.

Hereunder, is what the Tribunal decided on the interpretation of section 133(2) of the Electoral Act, 2002:-

” … It appears the effect of section 133(2) is that once the official’s act or omission, negative or positive, is the subject of complaint he is a statutory necessary party and shall be joined as a respondent”. (See p. 332 of the records).

The appellants think that the trial Tribunal was wrong in this decision. On the other hand, the respondents want this court to uphold the decision of the Tribunal. We ought to do so.

I hold the firm view that the submission for the appellants on the nature of their complaint in their petition is totally misconceived. They insist that they were not complaining about the personal conduct of the electoral officials but of omissions and irregularities found on documents. Also, in my respectful view, their application of section 133(2) of the Electoral Act is not supported by sound reasoning and legal decision. The view which this court must hold, is predicated on a number of reasons, particularly, having regard to the grounds of the petition, the interpretation and application of section 133(2) of the Electoral Act, 2002, the decided cases and the evidence before the Tribunal. I believe the Tribunal properly arrived at the correct decision on the application of Section 133(2).

A number of decided cases clearly outlined the meaning and application of section 133(2) of the Electoral Act. In Kalu v. Ohuabunwa (2004) 7 NWLR (Pt.871) 1, the petitioners joined the presiding officers where over-voting was alleged. They did not join other electoral officers against whom allegations were made. When the Tribunal struck out the entire petition on the ground that they failed to join Electoral officers against whom allegations were made and that was an infraction of the right of fair hearing under section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, this court held that the paragraphs relating to the five presiding officers ought to have been saved.

The law is that non-joinder of some necessary parties does not by itself lead to striking out of the entire petition particularly where there are other grounds in the petition which have nothing to do with the conduct of other persons involved in the election. The Tribunal here did not strike out the petition but took a decision relating to persons who ought to but were not joined.

There are compulsory statutory respondents who must be parties to the election petition, that is to say:-

(1) The person whose election is being complained of and

(2) Where there is a complaint in the petition against the conduct of electoral officers or persons who took part in the election, that electoral officer of person, usually referred to as statutory respondents. See General Muhammadu Buhari v. Alhaji Mohammed Dikko Yusuf (2003) 14 NWLR (Pt.841) 446 at 499, SC, per Uwaifo, JSC. Also Yahaya v. Aminu (2004) 7 NWLR (Pt.871) 159 at 179 -180, 190, 199 per Obadina and Ogbuagu, JJCA.

Where such an official or person whose conduct is complained of in the petition is not joined as a party to the petition, the paragraphs of the petition containing such complaints may be struck out, or discountenanced, and any evidence led thereon is of no effect. That is the case in this matter. For, a person who is no party to a suit can be proceeded against. By virtue of section 36(1) of the 1999 Constitution, it will amount to a breach of his fundamental right of fair hearing should that be done. The proceeding against him will be a nullity. See Usani v. Duke (2004) 7 NWLR (Pt.871) 116; Yahaya v. Aminu (2004) 7 NWLR (Pt.871) 159 at 191.

It is now trite law that section 133(2) of the Act conveys a mandatory requirement that statutory respondents which include presiding officers and others who took part in the conduct of the election must be joined as parties to an election petition once there is a complaint or allegation which can be said to be against them. See Jidda v. Kachalla (1999) 4 NWLR (Pt.599) 426 at 433, Barau v. Dansadau & 27 Ors. (1999) 12 NWLR (Pt.632) 653 at 661; APP v. PDP (1999) 3 NWLR (Pt.594) 238 at 241; Lamido v. Turaki (1999) 4 NWLR (Pt.600) 578 at 580. This court held in the case of Yahaya v. Aminu (supra) at pages 79 and 181 per Obadina, JCA and pages 184, 186 and 187 per Nzeako, JCA, that an allegation of malpractices, irregularities including over-voting, 100% voting at polling stations or units, failure to record votes or to conduct election (as in this matter), are directed at the presiding officers and they are the appropriate persons to answer to the allegations and must be made parties to the petition. See Nwoke v. Ebeogu (1999) 6 NWLR (Pt.606) 247 at 258. I would also again re-emphasize the same principles as we set out, and also, again re-emphasize the same principles as we set out in Yahaya’s case, supra thus:-

” … where the petitioner fails to specifically mention the officials or persons his allegations refer to, the petition is to be examined to infer those responsible for the alleged malpractice … See Oduka v. Okwaranyia (1999) 4 NWLR (Pt.597) 35 and Nze v. Nwaeze (1999) 13 NWLR (Pt.635) 396 at 408 per Akaas, JCA”.

Therefore, where the petitioner merely avers to his complaints and the facts relied on but does not name the persons against whom they are directed, it does not follow that no person’s conduct is being impugned. For, some persons either by commission or omission, must be responsible for giving rise to irregularities or other infractions of the law, being complained of in the petition.

This is in the mind of the law-maker in section 133(2). Ujam v. Nnamani quoted as “Nnamani v. Ujam” by learned counsel for the appellants (supra) also decided by the Court of Appeal, determined the application of section 133(2) of the same Act herein.

The appellants relied on part of a paragraph in the dictum of Mohammed, JCA in that case at page 919 of the report where the learned Justice of the Court of Appeal said, and I will reproduce the whole paragraph:-

“My view on the state of the law in the application of section 133(2) of the Electoral Act 2002 is further strengthened by the provisions of paragraph 47(1) of the 1st Schedule to the Electoral Act, 2002 which reads as follows:-

“47(1) Where an election petition complains of the conduct of an electoral officer, a presiding officer, returning officer or any other official of the commission he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party”.

Close reading of the provisions of section 133(2) of the Electoral Act, 2002 and paragraph 47(1) of the First Schedule to the same Act, leaves no one in doubt that when an election complains of the conduct of an electoral official in the conduct of an election, such electoral official must be joined as a party. The provisions of the law also reveal that the only compulsory and necessary party in an election petition is the person whose election is being questioned in an election petition. In other words, where there is no complaint against the conduct of any electoral official or any other person in the conduct of an election in an election petition, such electoral official or other person is not a necessary party and therefore failure to join such official or person as a party in the petition would not have any adverse effect on the petition. In Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 493, the Supreme Court defined necessary parties in any proceeding as:”

Those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff’.

See also Amon v. Raphael Tuck & Sons (1956) 1 WB 351; Settlement Corporation v. Hoshschild (No.2) (1956) 1WLR 1664 and Re Vandervills Trust (1971) AC 812.”

The foregoing is the applicable law. But, that is not the final word on the application of section 133(2) of the Electoral Act. There are other elements which come into play in various petitions and cases upon which the courts of justice have made pronouncements on the application of the particular statute. So it is in several appeals from election petitions which have come before the Court of Appeal for determination which called for the meaning and application of section 133(2) of the Electoral Act, 2002. It follows that the real meaning of that all important section of the Electoral Act derive from various pronouncements by the court.

Such pronouncements include those which state, that though presiding officers and other electoral officers whose functions are set out in the Electoral Act, are not mentioned by name in a petition, any allegation impugning the conduct of the officers at the election make it imperative that they be made Respondents in the petition.

Other pronouncements by the courts relevant hereto include those which state that an allegation of malpractices, irregularities, falsification of votes, allocation of fictitious votes directed at polling units are in fact directed at presiding officers who, though not mentioned by name in the petition are in charge of polling units. They must be joined as respondents in the election petition. A complaint will be against the ward returning officer if it is alleged that false returns different from that entered by the presiding officer were made. See Nwoke v. Ebeogu (1999) 6 NWLR (Pt.606) 247 at p. 258 per Akaas, JCA. In Oduka v. Okwaranyia (1999) 4 NWLR (Pt.597) 35 at 40, this is what Akintan, JCA (as he then was, now JSC), said and which specifically applies to the present case:-

“In the second and fourth prayers [prayers (b) & (d)], the election is being queried in respect of Ogboko wards 1 & 11 as well as Umuma-Isiaku wards on the grounds that they were voided “by corrupt practices and illegalities” and that “an order for the cancellation of the votes and fake results from Ogboko 1 & 11 and Umuma-Isiaku wards” be made. Although the names of those responsible for the corrupt practices are not mentioned, it can be inferred that those responsible for the alleged malpractices would include the officials who conducted the elections in the wards in question. Failure to join such officials as respondents would therefore be a breach of the mandatory provisions of section 83(2) of the Decree. Since it is the requirement of that subsection of the Decree that the said officers should be joined and they are not joined, the effect of such non-joinder is that the petition as it relates to those two legs of the prayers is incompetent. Those two prayers are accordingly struck out”. (Italics mine).

I adopt this, applying same to this matter.

In applying section 83(2) of the Local Government (Basic Constitutional Provisions) Decree No. 36 of 1998 which is in pari materia with section 133(2) of the Electoral Act of 2002, the Court of Appeal had this to say in PDP v. APP (1999) 3 NWLR (Pt.594) 238 at 245 per Muhammad, JCA:-

“Considering the petition, it is clear that the appellants are complaining against the conduct of the election. They allege that there were a lot of irregularities and substantial non-compliance with the provisions of the Decree. They specifically complained of the filling of Form EC8A. This in my opinion is a complaint against the conduct of at least the Electoral officer and by virtue of section 83(2), he should be joined in the petition because he is a necessary party.

The appellant, in his brief, referred to the case of Chief Akin Omoboriowo & Another v. Chief Michael Ajasin (1984) 1 SCNLR 108, (1984) 1 SC 206 to support his submission that non-joinder of the returning officer does not make the petition incompetent. That is true where there is no allegation of misconduct against the returning officer. Where there is allegation of misconduct against the returning officer, he becomes a necessary party and must be joined. See Omoboriowo’s case (supra) at pages 130 and 246 respectively where Obaseki, JSC, stated:-

“The effect of non-joinder of the returning officer where allegations of misconduct are made against him is that proof of the misconduct will not be entertained by the court in the absence of a joinder”. (Italics mine).

Since there are allegations of malpractices in the conduct of the election and allegations of misconduct against those who conducted the election, it becomes necessary to join the officers who conducted the election. They are necessary parties because without these, the allegations made against them cannot be proved. See also Maikori v. Lere (1992) 3 NWLR (Pt.231) 525 where it was held that it is trite law that a court as well as a tribunal will not make an order or give a judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter”.

I must point out that the allegations in the above case are virtually similar to those in this matter and the same reasoning must apply.

Let me also refer to the recent case of Engr. Adamu Muhammed Yahaya v. Pro. Jubril Aminu & 60 Ors. (2004) 7 NWLR (Pt.871) 159 decided by this court. There, it was held that an allegation of malpractices, irregularities, falsification of votes and allocation of fictitious votes directed at polling units are, in fact, directed against the presiding officers who are in charge of the polling units. That it would not be right to say, as contended by the appellant, that a complaint of over voting, non-voting, one hundred per cent voting, unlawful stuffing of ballot papers into ballot boxes and other electoral malpractices at the polling stations or units is not a complaint directed against the conduct of the election by the presiding officer. It is therefore the presiding officers who are the appropriate persons to answer the allegations raised in the appellant’s petition. Nwoke v. Ebeogu (1999) 6 NWLR (Pt.606) 247 at 258. (See pages 179 paras. B-E, 181 para. C, per Obadina, JCA and 186 paras. A-C and 187 paras. A-B per Nzeako, JCA. It was also held that where a petitioner … 407 (See pages 183-184 paras. G-D per Nzeako, JCA.

All the foregoing answer to the submission of the appellants’ learned counsel that where there is no complaint against the conduct of any electoral official, he is not a necessary party and that failure to join him would not have an adverse effect on the petition and that the appellants were not complaining against the conduct of the electoral officials. From a factual point of view, they were complaining against officials in paragraph 4 of the petition (supra) without naming them. The law requires them to be joined as parties. See Kallamu v. Gurin (supra) cited by learned counsel for the 1st respondent whose submission on this issue is in lines with the law.

I agree with him that the effect of paragraphs 4 and 5 of the petition is that the appellants complain of the conduct of presiding officers, and collation officers. As they joined only 81 presiding officers but no collation officers and other officers, their failure to join those presiding and collation officers touched by their complaints would render those parts of their complaint incompetent and the lower Tribunal was right in declining to resolve them.

In their decision, the Tribunal was conscious of the law, that this failure on the part of the appellants would not render the entire petition incompetent and quite rightly in my view, it so stated (see H page 334-335 of the records).

When therefore the appellants’ complaints in paragraph 4 of their petition, are examined against the law and the decided authorities, it is without doubt clear that they were complaining about things done or omitted to be done by some persons, as shown in the INEC forms of the EC8 series which they pleaded and/or tendered in evidence. Their evidence reveals this also. After all, it is persons who cause or commit irregularities, malpractices or non-compliance with the law, such as form the complaints upon which election petitions, are brought before election Tribunals. Such are complaints in para. 4, of returning of 100% votes; of registered voters where some voters did not vote; return of votes in excess of registered voters in a polling unit or in excess of ballot papers issued; crediting of candidates with votes in excess of valid votes cast, having regard to invalid, rejected or spoilt ballot papers; failure to record correct number of votes for candidates in INEC Forms EC8A, B, C and D and other relevant forms; improper collation of results; return of votes in polling units where no elections were held at all; and failure to follow guidelines stated by the 2nd respondent for the election by the 2nd respondent and its agents.

The Electoral Act has created various functions to be performed by various officials such as presiding officers, returning officers, collation officers etc. The presiding officer performs such functions as can be found in sections 39, 40, 42, 46, 47, 50 – 58 of the Act, including the admission of voters, counting of votes, entering the votes scored by each candidate to the election in the appropriate prescribed INEC Form. See also the Manual for Election officials spelling out the functions of the presiding officer under the Act. It includes that the completed forms shall be signed and stamped by him before delivering copies to parties’ agents and the police. It is him who shall certify the result by signing it after writing his name and stamping it.

Section 54 of the Act deals with counting and announcing of votes relevant herein. It provides as follows:-

54.-(1) The presiding officer shall, after counting the votes at the polling station or unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.

(2) The form shall be signed and stamped by the presiding officer and counter-signed by the candidates or their polling Agents where available at the polling station.

(3) The presiding officer shall give to the polling Agents and the Police Officer where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.

(4) The Presiding Officer shall count and announce the result at the polling station.

Also, section 56,

“After the recording of the result of the election, the presiding officer shall announce the result and deliver same and election materials under security to such persons as may be prescribed by the Commission.

Section 58(1) The Presiding Officer shall endorse the word “rejected” on the ballot rejected under section 61 and for any other reason, and the ballot papers shall not be counted except otherwise allowed by the Returning Officer who may overrule the Presiding Officer.

(2) If an objection to the decision of a presiding officer to reject a ballot paper is raised by a candidate or a Polling agent at the time the decision is made, the Presiding Officer shall add to the word “rejected”, the phrase “but objected to”.

(3) The Presiding Officer shall prepare a statement on rejected ballot papers, stating the number rejected, the reason for rejection and their serial number, he shall on request allow a candidate or a Polling Agent to copy the statement.

Section 57 and section 59 set out functions performed by the returning officer. Arising from the foregoing, it has been well settled that an allegation of malpractices, irregularities etc are in fact indicting the presiding officers who, under the Electoral Act are in charge of the polling units. See Nwoke v. Ebeogu (1999) 6 NWLR (supra), Kallamu v. Gurin (supra) at p. 526.

I cannot help thinking of the presiding officer as the “power house” of the polling station in whose hands lie the statutory power and duty to manage the polling, voting, counting, recording and announcing of votes at the polling state or unit, under the provisions of the Electoral Act.

I am therefore unable to appreciate the submission for the appellants that they have no complaint against the conduct of the electoral officers. Even the dicta in the cases relied on by the appellants, namely, Green v. Green (supra) and Nnamani v. Ujam (supra) do not support the case of the appellants when applied with other legal authorities to the facts of this case.

Taking the appellants on their own words that all they complained of were some irregularities or omissions on the face of documents used in the election or some acts which constitute non-compliance with the Electoral Act, detected by the petitioners, to my mind the reasoning is faulty and contradictory. This is evident from some questions that come to mind immediately. They are: “irregularities” or “omission”, or “acts” caused by who? Are “irregularities”, or “omissions” or “acts” phenomena of life which occur by themselves like the appearance of the sun or the moon without human action? The answer is “no”. They are phenomena which arise from human action.

It is ridiculous to argue as was done for the Appellants that the complaints are about “irregularities”, “omission” and “acts” which were observed on the face of documents used in the elections, as if the documents made themselves. It was argued that the Appellants did not attack the behaviour or conduct of persons/electoral officials. There were persons charged with the responsibility of organizing and managing polls, voting, counting, collating, recording, signing, stamping the documents and announcing of the result of the polls. You cannot have “irregularities”, omissions or “acts” which are contrary to the law without their being precipitated and/or committed by human action. Is it not the conduct of a person, positive or negative which is responsible for “irregularities”, “omissions” or “acts” which may be contrary to the provisions of the law?

The fact that a petition complains of the conduct of an Electoral officer, a presiding officer, a returning officer or any other officer of the Independent Electoral of the Commission who took part in the conduct of the election can be inferred from the nature of the complaint and the facts of the matter. Section 133(2) of the Act requires mandatorily that the officer be joined as a necessary party to the election petition. It is so, not withstanding that the petitioner chooses not to overtly name him as the officer whose act/omission/ commission was responsible for the complaint. For his responsibility can be inferred from the complaint in the petition.

The complaints of irregularities in the return of votes set out in paragraphs 4(a), (b), (c ), (d) and (g) of the petition of the Appellants in this matter, are against the returning/presiding officers. That of failure to record figures in Forms EC8A-EC8D in paragraph 4(e) is against the presiding, collation and returning officers at the polling units, wards and Local Government collation centers. Improper collation in 4(f) is against collation officers. Failure to follow guidelines in 4(h) is against all the officers of INEC – See sections 39-67 of the Act for the function of the officials. See also Nwoke v. Ebeogu (supra).

As that is the case, the officers in question must be made parties to the petition. For, in paragraph 47(1) of the 1st Schedule to the Electoral Act, 2002, it is enacted that where an election petition complains of the conduct of an electoral officer, presiding officer, returning officer or any other official of the commission, he must for all purposes be a respondent and joined in the election petition as a necessary party. It has become the practice in the courts, when considering who are necessary respondents in election petitions, to read paragraph 47(1) (supra) with section 133(2) of the Act. Section 133(2) defines a respondent in an election petition as:-

“The person whose election is complained of … but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purposes of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party”.

The appellants are obliged by law to join as respondents those officials whether named by them or not named but who took part in the election whose conduct they complained of in paragraphs 4 and 5 of the petition. See Kallamu v. Gurin (2003) 16 NWLR (Pt.847) 493 at 40, Lamido v. Turaki (1999) 4 NWLR (Pt 600) 578 at 585.

PW2 and PW3, in their evidence testified to the errors/omissions in the INEC Forms EC8A, EC8B, EC8C and EC8D tendered in evidence. They realized that it is the presiding, returning and collation officers in charge of the voting/counting/collation at the polling stations/units and/or ward collation centers, even the Local Government centres who were being blamed when the appellants lay their complaints in exhs. PT43 and PT45.

For example, at page 106 of the records, PW2 answered thus in cross-examination:

“It is correct that the omission and commissions I compared of on exhibit PT.43(a) – PT.43(z-1)r done by presiding officer of Kabri ward. So also for exhibits PT.45(a) to PT.43(k) the errors of presiding officers. That exhibit PT.45(k) is that of returning officer of Warwar ward”.

I must state for the avoidance of doubt that officers of polling units, wards or collation centers complained of who are not joined as respondents in the petition, as required by section 133(2) and paragraph 47(2) in the First Schedule of the Act, cannot be proceeded against. No evidence ought to be led in respect of such units, wards or center. Or else, any evidence led must be discountenanced. For, the Tribunal would be lacking in jurisdiction. Their fundamental rights of fair hearing under the Constitution will be breached should the Tribunal proceed against them in their absence as parties to the petition. See Ikpatt v. Iyoho (1999) 7 NWLR (Pt.609) 58 at 70. No court of justice should proceed against a party in a matter which may damnify his actions without making him a party thereto. It is even more imperative to cause such a joinder to take effect where the enabling statute as in this case, makes it mandatory. See also Omoboriowo v. Ajasin (1984) NSCC 81 at 97, also reported in (1984) 1 SCNLR 108 at 130.

The appellants had argued that the appellants alleged that it (sic) notices over-voting by way of votes returned being in excess of registered voters in some polling units and wards and in excess of ballot papers issued in some others, that the documents relied on were those of the 2nd respondent and its agents and that it did not require the presence of any of the electoral officials to determine the complaints of the appellants.

I am bound to state that the foregoing argument is totally misconceived. It took no account of the provisions of the Act referred to earlier as to who are necessary respondents in an election petition. It failed to appreciate even the simple fact that the return of votes was not performed by the document but arises from the act of some of the officers whom the appellants have neither named nor joined in the petition as required by law and who have to answer to their complaints.

The submission of learned counsel for the 1st respondent is preferable and more in lines with the law, when he stated that collation officers and by extension “agents of the 2nd respondent” fall within the definition of “any other person who took part in the conduct of an election” as envisaged by section 133(2) and paragraph 47(1) (supra) relying on Kallamu v. Gurin (supra). They must be joined as respondents. I agree with him that the complaint of over-voting by way of returning votes in excess of registered voters can only be properly responded to by the official who made the return or entry in the documents relating to the polling units or wards complained of.

Learned counsel for the 2nd – 111th respondents was right too in his submission, particularly that the case of Nnamani v. Ujam (supra) relied on by learned counsel for the appellants represents the correct interpretation of the law but it was misinterpreted by him.’

I do adjudge, that although the appellants complain of acts done by presiding and/or collation officers and other agents of the Electoral Commission, the submission for the appellants that the complaint in their petition does not fall within those contemplated by the said section 133(2) and that it was a great miscarriage of justice to apply it in declining to treat their complaints on their merit, is, in my respectful view totally misconceived.

The complaint under issue 1 that the Tribunal failed to consider the substantial evidence of irregularities and non-compliance is also misconceived. The Tribunal’s decision, based on the contents of the petition, a carefully reasoned and correct interpretation of the applicable law and the decisions of the apex courts, is fully justified. This is fully borne out by the records.

At pages 332-340 of the records, the Tribunal carefully considered all the evidence and argument proffered for the parties and the applicable legal authorities. It thereafter held as follows:-

(1) On the issue of the interpretation of the word “conduct” in section 133(2) of the Act –

“It is instructive that counsel, in this and other sentences in the address, had to import into the statute the judgmental prefix “mis” in order to put across his position that the conduct needs be reprehensible, or to qualify behaviour as “unbecoming”. As we have observed from the very definition cited by counsel, the word conduct, in and of itself, is value blind. If in the cases cited the conducts were of the “damnable” type, they fall within the ambit of the provisions without necessarily excluding other conduct of insipid nature. We are also not convinced by counsel’s submission that section 133(2) seeks to take away the right of a citizen, and so we shall give it a narrow interpretation or construction. Rather, we are bound to view the provision, as has been interpreted by superior courts, as one protective of the citizens right of not being condemned unheard: Kallamu v. Gurin (2003) 16 NWLR (Pt.847) 493 at 524 B per Ogbuagu, JCA. (See pp. 332-333).

(2) On failure to join presiding or returning officers where no election is claimed not held:

“Mr. Akanmode’s last-ditch effort on this issue is that since the petition alleges that elections were not held in certain polling units and wards, there can be no presiding or returning officers to join. Attractive as the logic of this apparently nifty proposition may be, it may have to confront the question, who was it that failed to conduct the election? Where a presiding officer fails to conduct the elections in a unit or a returning officer files-in a return where no votes were cast, should such officials, a fortiori not be joined to respond to the conduct, which amounts to a clear dereliction of duty? This argument appears to be a shot in the foot. The point was clearly made in Kallamu v. Gurin (supra) at 528 C-E, by Obadina, JCA:-

… to allege that voting did not take place at some polling units complained of, is to indict the Presiding Officers duly posted to the respective polling units with breach of duty imposed by sections 39 and 40 of the Electoral Act, 2002; and that makes the Presiding Officers concerned necessary parties to the petition.”

(3) On the joining of offices as determined by the courts:-

“We therefore must hold that a presiding, returning or any other officer whose conduct is complained of is a necessary party and shall be joined as a respondent. Collation officers, on the authority of Kallamu v. Gurin (supra) “can be classified as and in fact, fall within the definition of “any other person who took part in the conduct of an election”, per Ogbuagu, JCA, at page 520 F-G”.

(4) On the consequences of non-joinder:-

“However, we cannot agree with Mr. Akirikwen on the consequences of non-joinder, we believe the position has now crystallized to the effect that non-joinder of necessary parties does not invariably render the entire petition incompetent. Fatality results where the failure to join a party destroys the very foundation of the petition: A.N.P.P. v. I.N.E.C. (2004) 7 NWLR (Pt. 871) 16 per Mohammed, JCA at 56 F-G; or where, if the complaints against the omitted party or parties are severed, there may be no competently triable residue. See Jidda v. Kachalla (1999) 4 NWLR (Pt. 599) 426. That was the situation in Kallamu v. Gurin (supra) cited by Mr. Akirikwen. The petition q complained of acts and omissions at polling units but failed to join the presiding officers. Nothing triable would have survived after severing those complaints and so the consequence of the non-joinder was fatal. That was made quite clear at page 529 to 530 H-A, per Obadina, JCA:-

The non-joinder also made those paragraphs of the petition where the allegations or complaints were made incompetent and liable to being struck out. A cursory look at the petition shows that the entire petition without the paragraphs tainted with incompetence leaves the petition without life.

Without the presiding officers, “all the averments” in the petition became “an exercise in futility”. In Ikpatt v. Oyoho (supra), the Electoral Commission was not joined. All complaints against the conduct of the election were fundamentally against the functioning of the commission and so not joining the commission completely robbed the tribunal of Jurisdiction. In the case at hand, however, apart from those officials not joined, the petitioners have admittedly sued 81 Presiding Officers and they are entitled to prove their case against them. All the complaints that relate to the conduct of or to the Biyu v. Ibrahim (Nzeako, J.C.A.) units where these officers presided may be proved”. (See pages 334-335 of the records).

The Tribunal continued:-

“The question then is against whom may the remaining complaints in (e) and (f) be proved? No collation officer is joined in this petition. Of the 111 respondents, not one is described as a collation officer,” (See page 336).

(5) On whether the petitioners joined those of the officers against whose conduct they complained:-

“The position therefore is that those officials who made the entries into the Forms EC8B (save the two above) and EC8C have not been joined as parties to the petition. Consequently, evidences led in relation to wrong entries on these Forms, and of any failure attributed to them were led in futility. We also observe that the petition contains complaints of non-conduct of elections in some wards, and the petitioners led evidence in proof. We have already seen that conduct of elections at specific units is the responsibility of presiding officers. By the provisions of the Manual for Election officials (exhibit RS. 13), at page 3 paragraphs 2.4 and 2.5, it is the duty of the supervisory presiding officers and Electoral Officers to supervise the conduct of the elections and “ensure that they are properly conducted”. The petitioners have not joined any of those officials. Our decision on the 2nd issue therefore is that the petition is competent, but only to the extent that only complaints against the conduct of the officials who are respondents may be proved”. (P. 340 of the records).

The learned Judges of the Tribunal were so meticulous in their review, consideration and evaluation of the evidence before them and the applicable legal authorities, that we cannot, in fairness, fault their decision. Issue No.1 is determined against the appellants.

Issue No.2. The appellants and the respondents want the Tribunal’s application of section 135(1) of the Electoral Act, 2002 in dismissing the appellants’ petition, considered by this court having regard to the evidence before the Tribunal and to see if it was rightly applied. This issue arises from ground 2 of the grounds of appeal.

The appellants have in their Issue 4 complained that the Tribunal was not right in holding that the complaints with respect to return of votes in excess of ballot paper issued to certain wards, were misdirected.

The 1st respondent has also adopted that issue. All these Issues will be considered as Issue 2 as distilled by the 2nd – 111th respondents who did not raise any issue similar to the appellants and 1st respondent’s issue 4.

Section 135(1) of the Electoral Act, 2002 provides as follows:”

An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the noncompliance did not affect substantially the result of the election.”

This is what the tribunal held which has peeved the appellants:-

” … the malpractice or non-compliance that have been proved neither substantially affected the result of the election nor constituted a substantial breach of the principles of the electoral Act. In the ultimate result, therefore by virtue of the provisions of section 135(1) of the Electoral Act, we shall not invalidate the election The appellants’ submission is that the election cannot be said to have been conducted in accordance with the principles of the Electoral Act as envisaged by section 135(1) of the Act and that there was no substantial compliance with the Act on the part of the respondents. That it was a case of substantial non-compliance with the Act which could not be saved by section 133(2) of the Act.

For the 1st respondent, his learned counsel has urged that the proof offered by the appellants was not sufficient to result in the nullification or up-turn of the entire election results. He referred to Adebiyi v. Babalola (1993) 1 NWLR (Pt.267) 1 at 5 to support the view that not every non-compliance with the Electoral Act affects the result of the election.

I would agree with the principles supported by the foregoing decision.

Permit me to continue by stating that it is now trite law that a petitioner who alleges irregularities, malpractices or non-compliance at the election with the provisions of the law, must in order to succeed, satisfy the Tribunal or the court that the non-compliance substantially affected the result of the election. See O. Akinfosile v. J. A. Ijose 5 FSC 192 at p. 198 and 199, (1960) SCNLR 447 where the Supreme Court stated “per Abbot, F.J.; Ademola, CJF and Taylor, FJ concurring” as follows:-

” … no attempt was made, during the conduct of the petitioner’s case in the Court below, to say how many ballot papers were comprised in the “large” number said to have been counted although not bearing the official secret mark. It seems to me that evidence ought to have been adduced by the petitioner if he was to have any chance to success in his Petition … I am firmly of the view as above indicated, that a petitioner who alleges … a particular non-compliance and avers in his prayer that the non-compliance was substantial, must so satisfy the Court”.

It is not every non-compliance with the provisions of the election law which will substantially affect the result of the election substantially. See Adebiyi v. Mufutau Babalola (1993) 1 NWLR (Pt.267) 1 at 13 per Adio, JCA. Also, whether a particular non-compliance substantially affects the result or not, depends on the circumstances of each case and this will be deduced from the pleadings and the evidence before the tribunal or the court. See Bassey v. Young (1963) 1 All NLR 31, Nwobodo v. Onoh (1984) 1 SC, (1984) 1 SCNLR 1.

Thus if a tribunal shall come to the right decision, it must bear the mandatory provision such as section 135(1) of the Electoral Act in mind.

The tribunals or courts have held certain forms of non-compliance as substantial and others as non-substantial in the light of the evidence before them. Such is the case in Bassey v. Young (supra) where non-compliance was held substantial due to the evidence that the electoral officer did not open the poll at the prescribed time, leading to the going away of a large number of voters, who were deprived of their constitutional right to vote and whose votes affected the result. Nwobodo v. Onoh (supra) is a case 50 Nigerian Weekly Law Reports 29 May 2006 (Nzeako, J.C.A.) where the non-compliance related only to payment of security for costs considered curable and being a mere irregularity, would not lead to the cancellation of an election or otherwise lawful votes.

The return to an election will not be avoided where the tribunal or court is satisfied that there was substantial compliance with the law governing the conduct of the election. Substantial compliance does not mean absolute compliance. See Ibrahim v. Shagari (1983) 2 SCNLR 176 at 183.

Acts which may be regarded as sufficient to substantially affect the result of an election need not be widespread non-compliance. It may be acts which occur only in one or few places, yet their effect are so significant to the overall result of the election between the two candidates. See Sorunke v. Odebunmi (1960) SCNLR 414; Oputeh v. Ishida (1993) 3 NWLR (Pt.279) 34.

Failure to hold election in a station or some stations is not per se enough to avoid the entire election, unless it would substantially affect the result of the election. In Opia v. Ibru (1992) 3 NWLR (Pt.231) 658, it was held that such failure in one LGA is not per se enough to avoid the election in the whole Delta State unless it could be shown by the petitioner that it had substantially affected the result in the whole State. See also Adeola v. Owoade (1999) 9 NWLR (Pt.617) 30. In Sorunke v. Odebunmi (supra) the Supreme Court, per Ademola, C.J.F. upheld the petition and invalidated the election where the petitioner’s complaint was limited only to six out of ninety polling stations.

Quite clearly, it is not the number of stations where, or how widespread the non-compliance has occurred which is relevant, it is the effect of the non-compliance on the overall result of the constituency involved. In that case, it was identified that the issue to consider really was whether the petitioner’s failure to secure a majority of valid votes was due to non-compliance with the regulations.

To determine whether failure to hold a poll in any polling station or stations of a particular constituency would invalidate the election in the entire constituency, the circumstances and whether that would substantially affect the result of the election in the entire constituency must be established. Although it would be improper to disenfranchise the voters of that station, by such failure to hold polls, the election will not for that reason alone be avoided. See Oputeh v. Ishida (1993) 3 NWLR (Pt.279) 34 at 52.

An example of where the election would be said to be substantially affected, is where the number of votes by which the respondent led the petitioner in the result of the election, is likely to be upset by the number of registered voters in the polling unit or station where no voting took place. See Ezike v. Ezeugwu (1992) 4 NWLR (Pt. 236) 462; Oputeh v. Ishida (supra).

It is against these principles that the submissions and decision in this matter must be viewed. I would thus hold that it does not matter that the complaint of the appellants herein was in respect of 117 polling stations or units out of 735 as submitted for the 1st respondent. Rather, and as also submitted for him, it was for the petitioner to lead evidence to show the effect of non-compliance in these polling units over the constituency, viz the Taraba State Central Senatorial Constituency. Nor, is it as was submitted for the Appellants testifying only to facts which constitute non-compliance with the Electoral Act. It is a question of proving to the tribunal how these facts affect the overall result of the election. Winning or losing of an election is a question of “numbers” and figures.

As can be seen from the records, all that the appellants did was to identify and catalogue the elements of non-compliance without adding up or totaling the number of roles affected and identifying how they affect the overall result of the election in the constituency.

This failure is detrimental to the Appellants’ case. It was indeed the tribunal itself, which undertook to tabulate the effect of the alleged non-compliance relating to over-voting and to derive totals, which it matched against the score of each candidate, drew its conclusions therefrom, to decide that there was substantial compliance with the Electoral Act. Learned counsel for the appellants, quite correctly in my view, emphasized in his brief the fact that the appellants led evidence through PW3 and PW4 showing over voting in certain wards in the constituency. He accepted the said tabulation (chart) by the tribunal at pages 295 – 303 of the records. He used it to buttress his argument, characteristically forceful and well articulated, that not only did the appellants prove substantial non-compliance but that the tribunal made observations indicating the truth of the evidence, yet it failed to nullify the election on the ground of noncompliance with section 133(2) of the Electoral Act.

The lower tribunal had held (at page 342 of the records) that where votes in excess of the number allowed in the delimitation statistics (exhibit PT49) were recorded, a clear case of over-voting was established. The Tribunal was right and it would appear to me that parties accept the finding.

Such over-voting would, where established, cause the result of the polling unit in a constituency involved to be cancelled being null and void. See section 44(2) of the Electoral Act, 2002 and Kingibe v. Maina (2004) FWLR (Pt.191) 1555. Section 44(2) provides that where an election is nullified under section 44(2), there shall be no return for an election until another poll has taken place in the affected area.

Section 44(4) however states this, that:-

“Notwithstanding the provisions of subsections (2) and (3) of this section, the commission may, if satisfied that the result of the election will not substantially be affected by voting in the area where the election is cancelled, direct that a return of the election be made”.

The lawmakers’ repeated use of the word “substantially” is important and instructive and must be applied. It is observed that the tribunal found as a fact and quite rightly, in my view that the Respondents did not specifically contradict the evidence of the appellants regarding the allegation of over-voting. A most realistic, meticulous, careful and judicious evaluation of the evidence before them was undertaken by the learned Judges of the Tribunal (see page 343 of the records). They took the complaints in respect of the polling units, wards and Local Governments respectively. They reviewed the evidence relating thereto.

They found, with respect to the polling units the complaint of which they carefully tabulated (on pages 343-345 of the records) that the complaints against all the 22 units except Ndaforo I (shown in exhibit PT 34(g) proved). They found no evidence of over-voting or over balloting proved. For, the complaint is what the appellants consider as unusually high turn out of voters – resulting in 90% 100% voting, could not by itself amount to irregularity, non-compliance with the Electoral Act or malpractice, unless there is some evidence proving any other acts or omissions amounting to malpractice or non-compliance. As to the complaints relating to wards, the Tribunal noted that the evidence led was to show that the ballot papers used exceeded the number issued in the polling units making up the ward. Such is the case with Nyiddo/Tosso ward in Kurmi LG, and others which did not identify unit by unit where there was over-voting. If identified, the trial tribunal would know which presiding officer would be answerable for the non-compliance or malpractice.

The Tribunal also noted that in Kurmi LG alone, the appellants’ PW4 tendered 102 Forms EC8As and found that it could not be ascertained in which of the polling units the anomaly complained of arose and which presiding officer – joined or unjoined, as a party was answerable and what evidence was led thereon. All that was clear from the evidence was that the collation in Form EC8B was not stamped with INEC stamp, the duty of the collation officer.

The conclusion which the tribunal came to, is that the evidence by the appellants with respect to the anomalies at the wards required to prove their case, is not to be allowed by the law because they failed to join the necessary parties whose conducts constitute the acts/omissions complained of.

I must at this point reiterate that under issue No.1, (supra) I have upheld the need to join the necessary presiding and other officers as respondents as required by law and the effect of failure to do so. I would again adjudge as competent the Tribunal’s conclusion herein in the same regard. See also Bashir v. Audu (1999) E 5 NWLR (Pt.603) 433 at 439 per Sanusi, JCA.

Learned counsel for the Appellants has submitted and I think he belaboured the point, that the evidence led by the Appellants have been largely accepted by the Tribunal. That there was ample evidence of over-voting at polling units and ward levels of the election, borne out by the evidence of PW2, PW4 and PW5 supported by the charts (of the Tribunal) at (pages 295-297, 300-305 of the records). That more than 80% of the Forms EC8As and EC8Bs were not stamped contrary to Sections 54(2) and 65 of the Electoral Act and the view of the Tribunal that the results in those forms should be upheld because they bear the names and signature of the presiding officers, is no answer to the requirement of stamping the documents. That the provisions are mandatory, that the names and signatures are additional to stamping and not substitutes and that the provisions of the Electoral Act being a public statute, could not be waived. See A.-G., Bendel State v. A.-G., Federation (1981) 10 SC 1 at 168. Counsel also submitted that failure to stamp various forms EC8A is substantial non-compliance which the Tribunal erroneously glossed over. That the Tribunal misapplied section 135(1).

The foregoing argument and contentions could possibly have passed, but for some provisions of the same Electoral Act and the applicable principles and legal authorities. Section 54(2) which learned counsel relies on is not by itself. It is trite law that in the interpretation and application of provisions of a statute, other provisions, and indeed the entire statute ought to be taken into account in order to have a proper appreciation of the intendment of the lawmaker. See Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt.123) 539 at 550 per Obaseki, JSC. See also The Construction of Deeds and Statutes by Sir Charles E. Odgers (4th Edition) 172, Leader v. Duffey (1888) 13 App. Cas. 294 at 517 per Lord Halsbury, Canada Sugar Refining C. v. R. (1898) AC 735 at 741.

This is what Lord Davey said in the later case:-

“Every clause of a statute should be construed with reference to the con and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute … relating to the subject matter”.

See also Midlands Bank Ltd. v. Conway Corporation (1965) 1 W.L.R. 1165. Maxwell on The Interpretation of Statutes 12th Edition pages 47 and 58-61. See also Dantsoho v. Mohammed (2003) 6 NWLR (Pt 817) 457 SC at pp. 492-493 per Uwaifo, JSC. Also Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622 per Wali, JSC at p.641-642.

Among others and relevant to this case, section 54(2) has to be read with sections 65, 133(2), 134(1)(b), 135(1), they provide as follows:-

Section 65. Every Results form completed at the Ward, Local Government, State and National levels in accordance with the provisions of this Act or any Guidelines issued by the Commission shall be stamped, signed and countersigned by the relevant officers and Polling Agents at those levels and copies given to the Police Officers and the polling Agents, where available. Section 133(2) The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party.

Section 134(1)(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.

Section 135(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the noncompliance did not affect substantially the result of the election.

The appellants seem not to see the depth of the reasoning and decision of the Tribunal arising from the combined reading of the foregoing Sections of the Electoral Act, which is precisely that although some irregularities and non-compliance with the provisions of the Act have been proved, that the Tribunal does not consider that the election was not conducted substantially in accordance with the principles of the Act and that the non-compliance proved does not in a substantial manner affect the result of the election.

It is now trite law that it is not every non-compliance which will avoid an election and, to succeed in his petition, a petitioner in the election petition must not only prove his allegations of irregularities, malpractices or non- compliance with the law, he must show that these complaints are substantial to merit the nullification of the election. See Adebiyi v. Babalola (1993) 1 NWLR (Pt.267) 1 at 13. In that case this court, stated the law, per Adio thus:-

” … It is not enough for a petitioner to allege and/or prove non-compliance with some provisions of the Decree. If he wants his petition to succeed, he has to satisfy the court that the non-compliance is substantial and that it substantially affected the result of the election”.

See Akinfosile v. Ijose (1960) 5 SC 192, (1960) SCNLR 447, Dzungwe v. Swem (1965) NNLR 33 at 34, Awolowo v. Shagari (1979) 6-9 SC 51, Anazodo v. Audu (1999) 4 NWLR (Pt.600) 530 at 547 per Musdapher, JCA (as he then was); Ogbu v. Nnaji (1999) 4 NWLR (Pt.597) 87 at 94, Ojukwu v. Onwudiwe (1984) 1 SCNLR 247 at 306.

Therefore, even though the appellants have proved some measure of non-compliance with the provisions of the Electoral Act, these have not gone far enough to affect the entire result.

Learned counsel for the 2nd – 111th respondents has submitted that where the irregularity or malpractice complained of does not substantially affect the conduct of the election, it should be viewed as mere irregularity which should not lead to the cancellation of the entire election result but rather than that of the result of the areas affected.

It seems to me that the appellants’ learned counsel’s answer in the negative to his own question whether in the light of the evidence and the Tribunal’s findings, it can be said that the election was conducted in accordance and in substantial compliance with the Electoral Act, 2002 as envisaged by section 135(1) thereof, missed the point.

The point lies in the result of the analysis of the table from the ward to ward evidence before the tribunal by the appellants. It was carefully undertaken by the tribunal and that resulted in their findings on pages 357 – 358 and 360 of the records which the appellants now bask in. It showed the number of votes at the polling units/centers affected by the appellants’ complaints derived from their evidence. It then decided that if that was added to the 1st appellant’s votes, that he would still not win the election.

It is to be observed that even though the Appellants did their best in what one must admit was an onerous task, to establish the non-compliance with the Act alleged by them, through their rather competent witnesses, there was a gap in their evidence which they failed to fill. They did not add up the number of votes affected. They did not carry out the mathematical calculation of the total votes affected and those not affected in order to help the trial tribunal, see the significance of their proved non-compliance and whether it substantially affected the conduct or final result of the election in terms of the provisions in section 135 of the Electoral Act.

When the Honourable Tribunal members carried out the calculations themselves based on their tabulation of the bare figures from the appellants’ evidence, they found that only 10,890 votes were affected by the irregularities or non-compliance with the Act. That, in my respectful view was correct. The criteria which they applied is in my view supported by law.

The Tribunal then decided that the 10,890 votes were not substantial to give rise to the cancellation of the election. They quite rightly applied section 135 aforesaid.

I would agree with them and determine issue No.2 against the appellants.

Issue No.3: This is the appellants’ issue No.4, the same as 1st respondent and the 2nd – 111th respondents’ issue 3.

It is correct that the appellants served a subpoena duces tecum on the Resident Electoral Commissioner to produce and tender the ballot boxes and papers. He is the 2nd respondent. He did not come in person but sent his Chief Operations Officer who testified as PW 1. PW1 brought some items listed on the subpoena, but not the ballot boxes and papers. They were not made available for reasons such as that the appellants who inspected them said they no longer needed them. This, the appellants sought to counter. The issue now under consideration arose from this.

The appellants complain that the Tribunal found the reason of the appellants discredited and called it manifestly flimsy, yet it turned round in its judgment to put the blame for the non-production on the appellants.

I must state at this stage that having read what the Tribunal said, it seems to me that the kernel of its reasoning and decision on this, and not the blame for the non-production of the items in the subpoena is what should be addressed in this judgment in order to determine if the learned Tribunal members came to the right decision not to invoke section 149(d) of the Evidence Act.

The issue conveys the appellant’s grouse that the Tribunal failed to apply section 149(d) of the Evidence Act. The contention for the appellants is that having failed to produce the ballot boxes and papers at the trial, though subpoenaed to do so, the Tribunal ought to have invoked section 149(d) against them rather than lay the blame on them, the appellants.

The Tribunal questioned what would be the effect of invoking the provision and reasoned thus:-

“Against the results of which units or wards shall we presume that the production of the items would have gone? Counsel did not guide us on that”.

Then it added.

“Be that as it may, since the position is not that the 2nd respondent has hidden or destroyed the items, the petitioners should have sought to compel the production of items before they closed their case, if the items could have helped their case, instead of using the subpoena as a snare, relying Uzoho v. Task Force (2004) 5 NWLR (Pt.867) 627 at 642 – 643 where it was held, per Adeniji, JCA that if the solicitor-general was on subpoena and he refused to show up, there was a method of making him comply … and to force him to attend court with what was required. The appellant never took any such steps but chose to keep aloof. He cannot now complain of non-production of the document he could easily produce by going through the proper legal channel.”

The Tribunal added that:-

“The provisions are common sense based, meant to aid the court and not to shackle it, and are to be employed taking into account various facts in their relation to the facts of a particular case. In the case at hand unlike the Forms EC8 series, the ballot boxes and papers have not even been pleaded specifically. In the circumstances, we find section 149(d) of the Evidence Act irrelevant to the situation at hand”.

Learned counsel for the 1st respondent in his submission on this issue contends that what was apparent from the evidence relating to section 149( d) of the Evidence Act sought by the appellants to be invoked against the respondents was that though the evidence did exist at the time it was required to be produced, it could not be produced, on account of its unavailability. He submitted that that can be no evidence or proof of withholding evidence capable of invoking that section of the Act.

He virtually supported the stand taken by the Tribunal regarding the right of the Appellant to insist on their producing the items if they really needed them, using other legal measures, compelling the respondent to produce the items required in proof of their case, since it was their duty to produce all the material evidence to substantiate their claim. He adopted the case of Uzoho supra, relied on by the Tribunal and concluded that the appellants did not consider the production of the items material to the proof of their petition or else they could have compelled their production as there was no evidence of their being destroyed or hidden. He urged us to hold that the Tribunal rightly declined to invoke the said section 149(d) of the Evidence Act against the respondents.

For the 2nd – 111th respondents, the turn their counsel’s argument took was to show that the appellants suffered no miscarriage of justice by the failure to produce the ballot boxes and papers. He said the failure to produce was not deliberate. He referred to the evidence of PW1 at pages 76 – 81 of the records showing that the appellants went round the 2nd respondents LG Area offices inspecting ballot boxes and papers, which they saw. He supported the decision of the Tribunal for not invoking section 149(d) aforesaid. He repeated that if the appellants felt or believed the items would help their case they would have sought to compel their production before they closed their case.

I would commence the resolution of this issue by stating that there are some reservations which I have, regarding some of the points raised by the Tribunal and counsel for the parties which I have decided not to address herein. That those notwithstanding, that the reasoning of the learned members of the Tribunal has something recommending it from a legal point of view. In particular, there is the question as to which result of the polling unit or ward should the Tribunal presume that the items would have gone against. I leave alone the issue of whether the appellants should or could have compelled the production of the items if they considered them important to prove their petition.

I restrict myself to the question (supra). The Tribunal stated that the learned counsel for the appellants did not guide it to answer that important question. It remained unanswered. The Tribunal was right.

To have been identified, are, the use to which the appellants wished to put the items subpoenaed viz, the ballot boxes and papers in establishing their case and how they affect their complaints, neither pleaded nor identified to the Tribunal, having regard to all the circumstances of the case, including the evidence excluded due to the failure of the appellants to join some of the relevant/necessary respondents. Then there is also, arising from the evidence of PW6 showing that the appellants are not disputing all of the results.

What to presume regarding the ballot boxes and papers in relation to the appellants’ complaints, to my mind, remains nebulous in these circumstances. Are these evidence relevant to the case and are they pleaded?

I must however, the foregoing notwithstanding, agree with Mr. Akimode, learned counsel for the appellants, that having regard to the evidence of PW2, PW3 and PW6 and the contents of exhibits PT55a – PT55c, the production of the ballot papers could possibly have revealed “a can of worms”, which would have cast doubts on the credibility of the entire election. Is the casting of doubt to the entire election all that the appellants want? It cannot be, having regard to the prayers in their petition and the applicable law.

We also bear in mind, the yawning gap in the case of the appellants precipitated by their failure to bring before the Tribunal all the necessary respondents as determined in Issues 1 and 2 above. Whatever “can of worms” may be found in the boxes and papers, must exclude those relating to those unjoined parties. Added to this, is the effect of the evidence of PW6 showing that the appellants are not contesting all the results from all the polling units, wards and local governments. He named those contested and those not contested by them. These must have mellowing effect on the “can of worms” and dilute them. At page 143/44 of the records, PW6 listed them all out.

With all these, the court is still left with the question what it ought to presume regarding the contents of the ballot boxes and papers, unanswered. It is still a matter of speculation. Yet, speculation is not in the character of the law and administration of justice.

It is to be noted that to be read and applied with section 149(d) of the Evidence Act is the opening lines of section 149 itself. It provides thus:-

“The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume – (a), (b), (c).

(d) that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it”. (Italics supplied).

When so read, its permissive stance manifests itself. The fact that it creates a presumption of fact which is simply a logical inference of the existence of one fact from the proved existence of other facts which the court is free (may) to draw is noted. It is observed too, that the court is not obliged to draw any particular inference. See Law & Practice of Evidence in Nigeria by T. A. Aguda, 2nd Edition at page 368 etc.

In these premises, the Tribunal would have and did find itself unable to determine what to presume and what inference to draw. It rightly decided, in my view, that section 149(d) is not relevant. One would even add that it cannot he applied in the circumstances of this case.

I therefore determine issue 3 against the appellants.

Having determined all the relevant issues against the appellants, their corresponding grounds of appeal fail and the appeal must be dismissed.

It is hereby dismissed. The decision of the Tribunal is affirmed. There will be N110,000.00 costs to the 1st respondent to be paid by the appellants.

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Other Citations: (2005)LCN/1731(CA)