Ekpenyong & Anor. V. Duke & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the decision of National Assembly/Governorship/Legislative Houses Election Tribunal, (hereinafter called the Tribunal) sitting at Calabar delivered in petition No. EPT/HA/C/4/2007, on 1/12/2007.
The Tribunal had dismissed the petition of the appellants challenging the return of the 1st respondent as the member representing the Calabar South 1, State Constituency in the Cross River State House of Assembly in the election that took place on Saturday, 14/4/2007, for failure of the appellants to join necessary parties to the petition.
The State House of Assembly election was conducted nation wide on 14/4/07. The 1st respondent who had won the primaries on the Peoples Democratic Party (PDP) was nominated to contest the election into the Calabar South 1, State House of Assembly. The 1st appellant contested under the All Nigeria Peoples Party (ANPP). The Action Congress (AC), the National Democratic Party (NDP); and the Peoples Progressive Alliance also sponsored their respective candidates for the said election.
The state of the result of the elections as released by the 3rd and 4th respondents was as follows:
- Anthonia Nneka Oniel – AC = 564
- Francis Edet Ekpenyong – ANPP = 598
- Victor Eyo Harrison – NDP = 137
- Hon. Orok Otu Duke – PDP = 24,818
- Francis Asuquo Cole – PPA = 281
At the conclusion of the election, the 3rd respondent declared the 1st respondent as duly elected and returned with 24,818 votes. Aggrieved by the result of the election, the appellants filed a petition at the Tribunal. The Tribunal after hearing the petition entered judgment in favour of the 1st respondent and dismissed the petition.
Dissatisfied with the decision of the Tribunal, the appellants appealed to this Court on 4 grounds. The appellants in their brief of argument dated 4/2/08 and filed the same date distilled 2 issues for determination. The issues are:
“(i) Whether the appellants discharged the evidential burden of proof placed upon them in proof other allegations of malpractices against the respondents in the petition; and
(ii) Whether the non-joinder of necessary parties was a live issue before the trial court.”
The 1st respondent in his brief dated 16/2/08 and filed on 18/2/08 identified one issue for determination and is as follows:
“1. Whether, on the facts and circumstances the petition, their Lordships of the Election Petition Tribunal were right in:
i. Entertaining the 1st respondent’s objection challenging the competence of the petition and thus the jurisdiction of the Tribunal to hear and entertain the petition; and
ii. Their interpretation and application of the provision of section 144(2) of the Electoral Act, 2006?”
The 1st respondent also filed a notice of preliminary objection dated the 15/2/08 and filed on 18/2/08.
The 3rd – 6th respondents in their brief dated 18/2/08 and filed the same day formulated two issues mainly:
“1. Whether the petition as constituted before the lower Tribunal was competent when it failed to meet the mandatory statutory provision of section 144(2) Electoral Act, 2006 thereby robbing the tribunal of jurisdiction.
- Whether the appellants discharged the evidential burden of proof placed upon them in proof of their allegations of malpractice and against the respondents in petition,”
Upon been served with the respondents’ briefs, the appellants filed a reply brief dated 22/2/08 and filed the same day.
On Issue NO.1, learned counsel for the appellants, referred to paragraphs 4 and 5(i) and (iii) of the petition and submitted that the Tribunal found the allegations therein contained proved, the appellants were therefore entitled to judgment on those issues. Mr. Garrick referred to Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411 at 448; Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617 at 653 – 654; Osawaru v. Ezeiruke (1978) 6 and 7 SC 135 at 145 and Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 at 256, and submitted that the Tribunal having found that the appellants had successfully led unchallenged evidence on paragraphs 4, 5(i) and (iii) of the petition, the appellants were entitled to judgment with respect to Issue NO.2 formulated for determination by the trial Tribunal.
On Issue NO.2, relating to the non-joinder of the necessary parties, learned counsel for the appellants submitted that the Tribunal was wrong to have held that specific allegations were made also against Presiding Officers, Poll Clerks and Poll Assistants and the allegation were clearly pleaded in the petition, particularly in paragraphs 5(i), (ii), (iii) and 8(i) and (iii), learned counsel contended that the allegations in paragraphs 5(i), (ii) and (iii) of the petition, to wit; non-supply of electoral materials relate exclusively to the 3rd and 4th respondents. He submitted that at most it is conceded that the 3rd respondent acted as alleged through the 4th respondent but the same cannot be said of the 5th and 6th respondents along with the Presiding Officers, Poll Clerks and Poll Assistants as held by the Tribunal. Rather, having regard to the provisions of sections 49 – 68 of the Electoral Act, the 3rd and 4th respondents denied Presiding Officers, Poll Clerks and Poll Assistants, the opportunity of exercising their respective functions by the non-supply or under supply of the electoral materials in pursuit of the 3rd and the 4th respondents scheme of surreptitiously filling the electoral materials with fictitious votes, names and signatures of the said officials. Therefore, the Presiding Officers, Poll Clerks and Poll Assistants committed no wrong.
In respect of paragraph 5, Mr. Garrick, contended that the allegations made therein are distinct and separate from those in paragraph 5(i) – (iii) of the petition because they are in respect of additional irregularities. He then furthered that a pleader may plead excessively or in the alternative and may abandon any part of his pleadings and sustain any portion of it upon which he may succeed in the action. He relied in Ezukwu v. Ukachukwu (supra); Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 615 at 659; Olorunfeme & 7ors, v. Asho & Anor (2000) 2 NWLR (Pt. 643) 143 at 158.
It was also contended that by virtue of sections 28(2) (a), 29(2), 49(1), 50, 52, 56, 57, 62, 63, 64, 66 and 69 of the Electoral Act, 2006, Presiding Officers are constitutional and statutory officers of INEC, who per force of law must partake in any election conducted by INEC and being statutory agents, one does not need evidence to prove their agency relationship with INEC and that legal effect and evidence must not be pleaded. He relied on Ngige v. Obi (2006) All FWLR (Pt. 330) 1041.
Lastly, Mr. Garrick urged the court not to allow the case of Nwankwo v. Yar’Adua (Unreported) petition No. CA/A/EP/6/07. He then urged the court to allow the appeal.
The 1st respondent has by a notice of preliminary objection dated 15/2/08 and filed on 18/2/08 raised an objection to the hearing of this appeal by challenging the two issues for determination formulated by the appellants on the ground that they are not distilled from nor are they related to any of the 4 grounds of appeal. Therefore they must be deemed abandoned, and consequently the entire appeal should be struck out. The 1st respondent relied on Obasi v. Onwuka (1983) 3 NWLR (Pt. 61) 364; Idakula v. Richard (2001) 1 NWLR (Pt. 693) 111 at 120 – 121 and NEPA v. Arobieke (2006) 7 NWLR (Pt. 979) 245 at 266.
Out of the abundance of caution, learned counsel for the 1st respondent, Mr. Mba Ukweni, went ahead to argue the main issues in the appeal. He began by stating that any issue that touches on the competence of a suit before a court which includes an election petition tribunal touches on the jurisdiction of the Court or Tribunal to entertain same can be raised at any time and at any stage of the proceeding even on appeal. He referred to Alao v. V. C., Unilorin (2008) 1 NWLR (Pt. 1069) 421 at 445; Madukolu v. N. Kemdilim (1963) 2 SCNLR 341 and Amadiume v. Ibok (2006) 6 NWLR (Pt. 975) 158. He then submitted that the issue of locus standi of the petitioners/appellants to present the petition and that of non-joinder of necessary parties to the petition as required by section 144(2) of the Electoral Act, 2006, being issues touching on the competence of the petition and thus the jurisdiction of the Tribunal to entertain the petition were properly taken at the stage the 1st respondent did. Therefore, the Tribunal was on a firm ground in entertaining the issues and making pronouncements on them. Mr. Ukweni pointed out that the Tribunal in its judgment formulated three issues for the determination of the petition before it. Issue Nos. 1 and 2 were resolved in favour of the appellants and Issue NO.3 was resolved against them. That being the case the only issue which can validly be canvassed in this appeal is the issue of non-joinder of necessary parties to the petition.
Put succinctly, the issue in contention is the finding of the Tribunal at pages 180 lines 19 – 24 of the record where it held that:
“Essentially allegations against the Supervisory Presiding Officers (SPO); Presiding Officers (P.O.); the Ward Returning Officers (W.R.O.); the Electoral Officers, Calabar South and the Constituency Returning Officer, 5th Respondent and the Constituency Returning Officer (R. O.), have not been joined.”
Learned counsel, submitted that the appellants have not faulted the above findings of the Tribunal. Mr. Ukweni also pointed out that the provisions of section 144(2) of the Electoral Act makes provision for a petitioner to either join all the electoral officers against whom allegation of malpractices have been made or state expressly in his pleading that such persons or officers acted as agents of the INEC. He concluded that the appellants failed to do either of the two and the consequences of such failure are that the petition is rendered null and void. He then urged the court to affirm the decision of the Tribunal and dismiss the appeal.
Learned counsel for the 3rd – 6th respondents, Mr. Patrick Ekuri, in their brief presented and argued similar points in the issue on appeal. It will be unnecessary to repeat the arguments in detail as it will prolong this judgment to inordinate length. In sum, Mr. Ekuri, reproduced the appellants’ averments under paragraphs 5 and 8 of the petition in extenso. He then referred to the manual for Election officials, 2007, pages 1 and 2, which elaborately set the functions and duties of the Supervisory Presiding Officers, Presiding Officer, Poll Clerks and Poll Assistants who are involved in the conduct of the election, and submitted that the non-joinder of the above mentioned mandatory parties render the appellants’ petition incurably incompetent. He relied on Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 58 – 59; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 476; Obasanjo v. Buhari (2003) 17 NWLR (Pt. 850) 545; Nwankwo v. Yar’Adua (supra); Ndakuaba v. Kolomo (2005) All FWLR (Pt. 248) 160 SC; M. F. A. Inogha v. Inogha M. F. A. (2005) All FWLR (Pt. 283) 93 CA and Ubom v. Anaka (1999) 6 NWLR (Pt. 609) 99.
On Issue NO.2, Mr. Ekuri, submitted that the appellants failed to discharge the burden placed on them in respect of their allegations of malpractices, corrupt practices, non supply of result sheets, therefore the appeal lacks merit and it should be dismissed.
The appellants in their Reply brief submitted that, the appellants may be guilty of semantics and inelegant drafting of the said issues formulated for determination, but they are definitely distilled from the grounds of appeal.
With regard to the other issues raised by the respondents, learned counsel for the appellants, Mr. Garrick, contended that the Supervisory Presiding Officers, Presiding Officers, Poll Clerks and Polling Assistants are statutorily recognized officials who are covered by the proviso to section 144(2) of the Electoral Act, 2006, because they were shown to have acted as agents of the 3rd respondent as required by the proviso.
Lastly, Mr. Garrick urged the court not to follow its decision in Nwankwo v. Yar’Adua (supra) because it was decided per incuriam rather it should follow the decision of the Supreme Court in Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 335.
Before going into the substance of the appeal in the main, it behoves me to consider the Preliminary Objection raised by the 1st respondent in the 15t respondent’s brief.
The 1st respondent in compliance with the provisions of Order 10 Rule (1) of the Court of Appeal Rules, 2007, filed a notice of a preliminary objection dated 15/2/08 and filed on 18/2/08. The Preliminary Objection was also argued at pages 4 to 6 of the 1st respondent’s brief dated 16/2/08 and filed on 18/2/08. Apparently, the 1st respondent complied with the provisions of the rule fully. See Tiza v. Begha (2005) 15 NWLR (Pt. 949) 616 SC; SCC (Nig.) Ltd. v. Elemadu (2005) 7 NWLR (Pt. 923) 28 and Livestock Feeds Plc. v. Funtua (2005) 17 NWLR (Pt. 955) 549.
Now, whenever a preliminary objection is properly raised attacking the competence of an appeal it should be considered and determined or resolved first by the court at the preliminary or initial stages before going into or dealing with the merits or other issues in the appeal. See Uba v. Yawe (2000) 8 NWLR (Pt. 670) 739; Ahaneku V. Ekeru (2002) 1 NWLR (Pt. 691) 622 and UBA Plc. v. ACB (Nig.) Ltd. (2005) 12 NWLR (Pt. 939) 322. It behoves me to consider and deal with the preliminary objection at this stage. I observed that the preliminary objection was very comprehensively and eloquently argued by the 1st respondent in his brief to which the appellants equally replied in their reply brief. In order to appreciate the purport of preliminary objection and to put it a proper perspective I have chosen to reproduce the grounds of the objection and the grounds of appeal in this judgment.
“GROUNDS OF OBJECTION:
- The two (2) issues formulated by the appellants for the determination of the appeal and grounds of appeal Nos. 1, 3 and 4 from where the issues were supposed (sic) to been derived; and
- Consequently, the entire appeal.
The grounds of the 1st respondent’s objection are that:
(i) The two issues for determination formulated by the appellants are not distilled from now related to any of the 4 grounds of appeal; and
(ii) Grounds of appeal Nos. 1, 2, 3 and 4 are deemed abandoned because no issue for determination has been formulated from them.
The 1st respondent is accordingly urging on your Lordships to strike out:
(i) Ground of appeal NO.2, having been abandoned by the appellants;
(ii) the two issues for determination formulated by the appellants at page 3 of the Appellants’ Brief of Argument since they do not relate to any of the grounds of appeal;
(iii) Grounds of appeal Nos. 1, 3 and 4 since no issue has been formulated there from; and
(iv) Consequently, the entire appeal.”
GROUNDS OF APPEAL:
GROUND 1
The learned Justices of the Election Petitions Tribunal erred in law when, after holding that the respondents failed to raise their objection to the competence of the petition timeously in accordance with paragraph 49 of the First Schedule to the Electoral Act, 2006, and paragraph 3(7) (d) of the Election Tribunal and Court Practice Directions, 2007 went on to consider the objections of the respondents and dismiss the petition thereon.
PARTICULARS
The learned Justices of the Election Tribunal held as follows at pages 31 – 32 of the Judgment.
“However, we are of the humble view that such an issue should be raised at the earliest opportunity and not wait until after evidence has been adduced for all the sides. It is very desirable that a party who wishes to raise preliminary objection to the competence of a suit should raise same at the earliest opportunity when same is discovered and not want (sic) until after all the fight is vigorously fought. It is noteworthy that under the practice direction, the intendment of the law maker is that all such preliminary issues as to the competence or otherwise of the petition or the petitioner to present the petition are to be thrashed out at the pre-hearing session so that only real issues go to the stage of trial. By paragraph 3(7) (d) the Tribunal shall consider and take appropriate action in respect of hearing and determination of objection on point of law and by paragraph 3(2) (a) the purpose of the pre-hearing information sheet, Form TF008, is for the disposal of all matters which can be dealt with on interlocutory application, such as the one being raised now by the respondents, who though made it part of their reply never raised it at pre-trial session.”
(ii) The learned Justices then went on to consider the issue raised by the respondents and dismissed the petition.
GROUND 2
The learned Justices of the Election Petition Tribunal erred in law when they dismissed the petition on the authority of a decision of the Court of Appeal in preference to that of the Supreme Court to the contrary.
PARTICULARS
(i) The learned Justices of the Election Tribunal held, at page 33 of the Judgment, as follows:
“The next question is what the effect of such non-joinder is. It has been the view of this Tribunal expressed in the several rulings delivered with respect to the preliminary of objection raised on this issue that the effect of non-joinder of necessary parities is only fatal to the paragraphs containing the complaints against those officers not joined. This view we held deriving our authority from the Supreme Court decision of Egolum v. Obasanjo (supra) and several other decisions that followed that, we had interpreted the provisions of section 144(2) of the Electoral Act, 2006 to have the same effect as section 133(2) of the 2002 Act which was interpreted by the Supreme Court in Egolum v. Obasanjo. However we are now confronted with the Court of Appeal decision in Nwankwo v. Yar’Adua (Unreported) petition No, CA/A/EP/6/07 which in its interpretation of section 144(2) of the Electoral Act, 2006 has decided that the non-joinder of a necessary party … is fatal to the entire petition we are now bound by that decision…”
(ii) As held by the Tribunal, section 144(2) of the Electoral Act, 2006 is in pari materia with section 133(2) of the Electoral Act, 2002 which was interpreted by the Supreme Court in Egolum v. Obasanjo (supra).
(iii) The Supreme Court has not overruled itself on Egolum v. Obasanjo which by the doctrine stare decisis, is till binding upon the Tribunal in the petition how on appeal.
GROUND 3
The learned Justices of the Election Petitions Tribunal misdirected themselves in law when they held that necessary parties have not been shown to have acted as agents of the Independent National Electoral Commission and so are not covered by the proviso to section 144(2) of the Electoral Act, 2006.
PARTICULARS
(i) The learned Justices of the Tribunal held at page 33 of the judgment as follows:
“We are now bound by that decision and therefore although certain allegation of the Electoral Malpractice alleged against the 2nd and 3rd and 4th respondents, who have been joined can be said to have been made out, since other necessary parties have not been joined and have not been shown to have acted as agents of the Commission, this petition has to unfortunately fail and is accordingly dismissed, unfortunately.” (Emphasis ours).
(ii) The petitioners tendered Exhibit P4 which, the 3rd – 6th respondents accepted as their document and in which the 1st respondent’s witness identified some of the names listed therein as electoral officers pleaded in paragraph 8 of the petition.
(iii) After receiving Exhibit P4 in evidence and having same not controverted but rather confirmed by the 1st respondent’s witnesses, the Tribunal still held that the said Electoral officers were not shown to have acted as agents of the commission and dismissed the petition on that ground alone.
GROUND 4
The judgment of the Election Petitions Tribunal is against the weight of the evidence adduced at the trial, and is perverse and not in the interests of substantial justice.”
Before going further let me say now that in arguing the appeal the appellant abandoned ground 2, the two issues for determination were distilled from grounds Nos. 1, 3 and 4 of the appeal only. The appellants having stated at page 3 paragraph 2, that they have abandoned ground 2 of the Notice and Grounds of Appeal, ought to have applied to the Court to strike it out as pointed out by Mr. Ukweni, counsel for the 1st respondent. The said ground having been abandoned is liable to be struck out and it is accordingly hereby struck out. See NEPA vs. Arobieke (2006) 7 NWLR (Pt. 979) 245 at 266.
In respect of Issues Nos. 1 and 2 for determination, I have carefully examined, considered and reflected on them dispassionately. It is my considered view that though the 2 issues for determination appear inelegantly drafted, they bear a reasonable relationship with grounds 1, 3 and 4 in the notice and grounds of appeal filed by the appellants.
Issue No. 1 is related to ground 4 dealing with the weight of evidence. An issue dealing with whether the appellants discharged the evidential burden of proof is clearly referable and related to a ground complaining that the judgment is against the weight of the evidence adduced.
Secondly, Issue NO.2 is clearly related to grounds 1 and 3 reproduced above. The question whether the non-joinder of necessary parties was a live issue before the Tribunal is encapsulated in ground 3 which says the Tribunal misdirected themselves in law when they held that necessary parties have not been shown to have acted as agents of the INEC and so are not covered by the proviso to section 144(2) of the Electoral Act, 2006. Section 144(2) of the Electoral Act and the proviso thereat deal with the issue of joinder of necessary parties to the petition or those shown to be agents of INEC.
The fact that the appellants’ Issues Nos. 1 and 2 are clumsily and inelegantly drafted does not mean that they should be discountenanced or struck out. I would rather do substantial justice than base my decision on mere technicalities. What is important is for the court in the determination of the nature of the issues formulated, is not the form but the question they raise. The era of arid legalism and technicalities are gone forever. The court is more interested now in doing justice. The days of sticking to technicalities as opposed to substantial justice have gone and the Courts have shifted from undue reliance on technicalities to doing substantial justice between the parties before it. See Ogbaegbe v. F. B. N. Plc. (2005) 18 NWLR (Pt. 957) 357. Ogbogoro v. Omenunoma (2005) 1 NWLR (Pt. 906) 1 at 16. This per Augie, JCA, held thus:
“The weight of judicial opinion nowadays is predominantly in favour of the court doing substantial justice rather them undue adherence on rules of court and technicalities.
Substantial justice, however cannot be done unless courts of justice strain to ensure that appeals are heard on the merit.”
In F. B. N. Plc. v. Akinyosoye (2005) 5 NWLR (Pt. 918) 340 at 392, Ogunbiyi, JCA, thus to say:
“Whether or not an issue has been inappropriately formulated, the outcome may not necessarily result in it being discountenanced. Rather, the court is enjoined to exercise discretion and substantially do justice to the appellants’ case. In effect, an Appeal Court can suo motu correct the issue for determination arising from the grounds of appeal where it is wrongly formulated by either of the parties to an appeal, as the court would not allow an error to remain uncorrected so as to enable the opponent to take advantage of such error to the prejudice of the party making the error. Olawoake v. Salawu (2000) 11 NWLR (Pt. 677) 127; Akpan v. State (1992) 6 NWLR (Pt. 248) 43; Oluda v. Mil. Admin, Kogi State (2000) 12 NWLR (Pt. 680) 24; Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532…”
Also in Esiri v. Idika (1987) 1 All NLR 382 at 389, Nnamani, JSC, said:
“It remains for me to say with all respect that substantial and well reasoned as this objection has been, it is nevertheless a further journey into the arena of technicalities. This Court has resolutely set its face against them preferring decisions of which Mofu Surakatu v. Nigeria Housing Society Ltd. & Anor. (1981) 4 SC 26 may be one of those marking the beginning of that stance to do substantial justice between the parties. The Courts are Courts of law but may the day never come when they cease to be Courts of justice.”
I must state here that this court does not need to bend backward to consider the appeal on its merits as stated by the 1st respondent in paragraph 4.01 at page 6 of his brief. Issue Nos. 1 and 2 are properly and sufficiently derivable from grounds 1, 3 and 4. That being the case the preliminary objection is devoid of merit and it is accordingly hereby dismissed.
I shall therefore consider the merits of the appeal. I have carefully examined the issues for determination formulated by the appellants, 1st respondent and the 3rd – 6th respondents. After a calm and sober reflection on the issues, I find those formulated by the 3rd – 6th respondents very succinct and they encompass grounds 1, 3 and 4 of the grounds of appeal filed by the appellants. I shall therefore rely on them in this appeal.
Issue No. 1 is:
“Whether the petition as constituted before the lower Tribunal was competent when it failed to meet the Mandatory Statutory provisions of section 144(2) of the Electoral Act, 2006, thereby robbing the Tribunal of jurisdiction.”
In the first place, it is important to note that any issue that touches on the competence of a suit before a court, including an election petition before an Election Tribunal, puts the jurisdiction of the Court or Tribunal to entertain same in issue, therefore it can be raised at anytime and at any stage of the proceedings, even on appeal and once raised the court must consider it. See Amadiume v. Ibok (supra). In PDP v. K.S.I.E.C. (2006) 3 NWLR (Pt. 968) 565, it was held that:
“Jurisdiction is the very basis on which any tribunal tries a case. It is the life line of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case be it at the trial, an appeal to Court of Appeal or to the Supreme Court where an issue of jurisdiction is raised it is proper and neater to have the issue resolved first before delving into the substantive matter…”
See further Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1; Dangtoe v. Civil Service. Plateau State (2001) 4 SCNJ 131; Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198 and Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6.
From the foregoing, it follows that the issue of non-joinder of necessary parties to the petition as required by section 144(2) of the Electoral Act, 2006, being an issue touching on the competence of the petition and afotiori, the jurisdiction of the Tribunal to entertain the petition was properly raised by the 1st respondent when he did and the Tribunal was correct to hear it at the stage it did.
The main grouse or grievance of the appellants is the issue of the non-joinder of necessary parties in their petition, following their pleadings under paragraphs 5(i), (ii), (iii) and paragraph 8(i) (a – z), (ii), (iii) and (iv) of their petition at pages 190 to 194 of the record. It is the contention of the appellants that they made no allegations against the Presiding Officers, Poll Clerks and Poll Assistants; therefore, the findings of the Tribunal cannot be correct. I have carefully perused the averments of the appellants in paragraphs 5(i), (ii), (iii) and 8(i)(a) – (z) and (ii), (iii) and (iv) of the petition.
Copious allegations involving non-issuance of result sheets to any of the Polling Stations in the constituency; the surreptitious filling of fictitious names; signatures and scores in result sheets outside the Wards Collation Centres; the non-counting and non-declaration of results at the various polling units; falsification of the election by giving arbitrary figures; the use of PDP members to conduct the election and the correctness of the results of the election as declared by the Returning Officer, are serious complaints against Presiding Officers, Supervisory Presiding Officers, the Ward Returning Officers, Poll Clerks and Polling Assistants who conducted and supervised the elections at the polling booths, wards collation centres. The submission of the learned counsel for the appellants is therefore misconceived. These officers were not joined in the petitions.
An allegation of non-issuance with the result sheets is a complaint against the Supervisory Presiding Officers whose duties were to distribute election materials to Presiding Officers. See page 2 of the Manual for Elections Officials which provide thus:
“The Supervisory Presiding Officer (SPO) supervises the conduct of the elections in a cluster of polling stations usually ten and liases between electoral officer and poll clerks under his/her supervision on all matters affecting the elections especially in the collection and distribution of materials.”
See also paragraph 3 of the same manual.
It is therefore glaringly clear and indisputable that the said allegations of the appellants in this regard are directed specifically to the Supervisory Presiding Officers.
In respect of the Presiding Officers, their duties have been clearly outlined at page 1 of the Manual for Election Officials, to the effect that they are the poll officers in charge of the conduct of the elections in polling stations assigned to them. At page 2 of the same Manual, the Presiding Officers are in charge of all proceedings at the polling stations on Election Day including the voting and counting of votes. Clearly, the allegations that result sheets were not supplied to any of the polling station, there was no counting and or declaration of results at the various polling units, paucity of ballot papers, scores filled for other parties and altering of results by all the officers are clearly referable to or directed at the Supervisory Presiding Officers, Presiding officers and Poll Clerks, Ward Returning Officers, etc. Therefore, the Tribunal was on firm ground when it held at page 180, lines 19 – 26 of the record as follows:
“…Essentially allegations against the Supervisory Presiding Officers (SPO), Presiding Officers (P.O); the Ward Returning Officer, Calabar South 1, State Constituency and who except the Electoral Officer, 5th Respondent and the Constituency Returning Officer/R. O., the 6th Respondent, have not been joined…”
The appellants have not faulted the Tribunal’s findings above in any way. The above mentioned officers were not joined in this petition as necessary parties in compliance with the provisions of section 144(2) of the Electoral Act, 2006. It provides thus:
“The person whose election is complained of is, in this Act, is referred to as the respondent, but if the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer of any other 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.
PROVIDED that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”
The words of section 144(2) of the Electoral Act are clear and unambiguous; therefore, they must be given their literal and ordinary meaning. Where the provisions of a statute are clear, plain and unambiguous, the Courts are precluded from resorting to any aid or any other cannon of interpretation. See Obi V. INEC (2007) 11 NWLR (Pt. 1046) 565; Elebanjo V. Dawodu (2006) 15 NWLR (Pt. 1006) 76 and A-G. Ondo State V. A-G, Ekiti State (2001) 17 NWLR (Pt. 743) 706.
Implicit in the provisions of section 144(2) of the Electoral Act is that where a petitioner complains of the conduct of any of the officer and person thereat, such officer or person:
(a) shall be deemed as a respondent
(b) and shall be joined in the election petition
(c) in his or her official status as a necessary party.
The appellants did not comply with the provisions of section 144(2) of the Electoral Act, 2006. This now brings the proviso to section 144(2) into play. For a petitioner to benefit from the proviso –
“Such officer or person must be shown to have acted as an agent of the Commission.”
The New Lexicon Webster’s Dictionary of the English Language, Deluxe Encyclopedia Edition – defines “Show” and its past participle “Shown” as:
“to cause to be seen; to establish, prove, to plead, present in Court to give evidence of or to prove a point.”
Bearing the above in mind, I have very careful perused the petition filed by the appellants at pages 187 – 198 of the record. Nowhere did the appellants show that the officers or persons, whom the allegations were made, are agents of the Commission, INEC.
Although the appellants submitted that, Presiding Officers are constitutional and statutory officers of INEC, who per force of law must partake in any election conducted by INEC and being statutory agents, one does not need evidence to prove their agency relationship with INEC and that no legal effect or evidence must be pleaded. I cannot subscribe to the appellants’ counsel submission.
Firstly, if the Presiding Officers, Supervisory Presiding Officers, Poll Clerks, Poll Assistants, Ward Returning Officers, were statutory officers of INEC who per force of law must partake in any election and being statutory agents, they need not prove their agency relationship with INEC then the proviso to section 144(2) of the Electoral Act would be superfluous, unnecessary and perhaps meaningless. In my considered view the words in the proviso to section 144(2) of the Electoral Act were not put in there for fun. I must reiterate the fact that where the words of a statute are plain and ambiguous, the court is duty bound to give the words their ordinary grammatic and natural meaning. See Awuse v. Odili (2005) 16 NWLR (Pt. 925) 416; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 SC; Wema Bank Plc. V. Onafewokan (2005) 6 NWLR (Pt. 921) 410 and Excel Plastics Ind. Ltd. v. FBN Plc. (2005) 11 NWLR (Pt. 935) 59.
It is quite clear and very well settled that the intention of the legislature is deduced from the words used in the statutes and once that intention is ascertained the duty of the court is to give effect to it and not to defeat it or to adopt an interpretation that will do violence to it. In the interpretation of statutes a court should adhere strictly to the interpretation only intended by the legislature, even where such strict construction appears punitive to the litigant. See Balogun vs. Odumosu (1999) 2 NWLR (Pt. 592) 590. The office of a Judge is jus dicere not jus dare. See Okumagba v. Egbe (1965) 1 NMLR 62 and Awolowo v. Shagari (1979) 12 NSCC 87.
Also in A-G, Ondo State v. A-G, Ekiti State (2001) 17 NWLR (Pt. 43) 706, Kutigi, JSC, (as he then was) stated:
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions (of an enactment) are clear and unambiguous effect must be given to them without resorting to any aid internal or external. It is the duty of the court to interpret words of the lawmaker as used.”
It is a clear principle of law that when a statute prescribes a method for doing an act, that method only must be followed. See F. G. N. v. Zebra Enorg Ltd. (2002) 18 NWLR (Pt. 798) 162 SC, where Uthman Mohammed, JSC, at page 200 – 201 of the report as follows:
“When a matter is clearly spelt out in a statute and the procedure for carrying out such duty is laid down a party has no choice but to comply fully with the provisions of the statute…”
The current and subsisting state of the law in respect of section 144(2) of the Electoral Act, 2006 is the, as yet, unreported case of Nwankwo v. Yar’Adua (supra), where Jega, JCA, held as follows:
“It is clear from the wordings of section 144(2) of the Electoral Act, 2006, that the proviso to the section can only be invoked and come into play if it is expressly pleaded in the petition that all the officials like the Electoral Officers, Returning Officers, Presiding Officers, Poll Clerks and other officers that took part in the conduct of the election are agents of the Independent National Electoral Commission in the conduct of the election.
It therefore follows that where there is no express pleading in the petition alleging that those Electoral personnel are agents of Independent National Electoral Commission, and then the proviso of section 144(2) cannot come into play.”
Learned counsel has urged this court not to follow the case of Nwankwo v. Yar’Adua (supra). The counsel did not however state the reasons why this court should depart from the case under consideration. Suffice it to state here that this court can only depart from its previous decision when new facts emerge to show that the previous decision was wrongly decided or that it was decided per incuriam or that it was decided without jurisdiction. See Yonwuren vs. Modern Signs (1985) 1 NWLR (Pt. 2) 244.
Also, it is settled law that the Court of Appeal is bound by its previous decision, it can only depart from its previous decision in the following circumstances:
(1) Where two decisions of the Court of Appeal are in conflict the court must choose between them.
(2) Where the Court of Appeal comes to the conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court.
(3) Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam, or ignorance of a statute or other binding authority, the court is not bound by it.
(4) Where the previous decision was decided without jurisdiction.
Having carefully examined the decision in Nwankwo v. Yar’Adua (supra) none of the circumstances mentioned above is manifested in it, therefore I am bound by the decision. I see no reason to depart from it and I shall follow it and apply it in this judgment. There is a compelling need to have certainty and consistency in the decisions of the Court of Appeal, particularly in election petition matters.
Mr. Garrick has also made heavy weather about the case of Egolum v. Obasanjo (supra) and submitted that it is current and subsisting. With the greatest respect to Mr. Garrick, I cannot subscribe to his contention or submission. The case of Egolum v. Obasanjo (supra) was decided on 14/5/99 and the provision considered in the case was section 50(2) of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree NO.6 of 1999 which has no provision similar to the proviso to section 144(2) of the Electoral Act, 2006. It is only where the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other. See Nwobodo v. Onoh (1984) 15 NSCC 1 at 34 – 35. So much for the submission of Mr. Garrick.
Following the principles of stare decisis, the lower Tribunal had no option than to be bound by the decision of the Court of Appeal in Nwankwo v. Yar’Adua (supra). In Merchant Bank Ltd. vs. Petroleum Special Trust Fund (2006) 5 NWLR (Pt. 974) 463, I. T. Muhammad, JCA, (as he then was) held thus:
“The principle of stare decisis, I think, has imposed an obligation on lower Courts to be bound by the decision of higher Courts. Deliberate refusal to be so bound amounts to impertinence which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy. This must be eschewed and discouraged by Judges.”
In the circumstances, the petition not having been initiated by the due process of law and upon fulfillment of the condition precedent to the exercise of jurisdiction is void. By virtue of the mandatory provision of section 36 of the 1999 Constitution, the court is enjoined to accord fair hearing to all parties before passing judgment for or against them. The principle of our law is that no person shall be guilty of an offence without being given an opportunity to defend himself. Every person to whom an allegation is made must be confronted with that allegation so that he can defend himself. See Ubom v. Anaka (1999) 6 NWLR (Pt. 605) 39 and Nwoke v. Ebeogu (1999) 6 NWLR (Pt. 606) 247. The non-joinder of the Supervisory Presiding Officers, Presiding Officers, Poll Clerks, Poll Assistants and Ward Returning Officers is a fundamental vice which rendered the petition void.
I, therefore, resolve Issue NO.1 against the appellants.
I shall now consider Issue NO.2 which relates to the question whether the appellants discharged the evidential burden of proof placed upon them in proof of their allegation of malpractices against the respondents.
It is my considered view that this issue does not arise, having regard to the judgment of the lower Tribunal at pages 175 to 180 line 18 of the record. The lower Tribunal framed 3 issues for determination of the petition, to wit;
“1. Whether the substitution of Anta Antigha Bassey with the petitioner to contest the election was proper as to invest him with the locus standi to present this petition.
- Whether the election was conducted with substantial compliance with the Electoral Act, 2006.
- Whether the electoral officers against whom allegations of malpractices were levied have been joined in this petition.”
Issues 1 and 2 reproduced above were resolved in favour of the appellants, only Issue 3 was resolved against them, therefore, they cannot have any legal grievance against those part of the judgment which were resolved in their favour. See pages 77 lines 20 – 24 and 180 of the record. In the circumstance the appellant cannot make those issues decided in their favour the basis of their appeal. In Akinsipe v. Adetoroye (1999) 9 NWLR (Pt. 617) 162 at 179, this Court held thus:
“Where an issue was resolved in favour of an appellant, he cannot be considered an aggrieved party to qualify him to appeal against the issue that was decided in his favour…”
It is clear that Issues Nos. 1 and 2 formulated or framed by the Tribunal sufficiently disposed off the issues of the burden of proof in respect of their allegation of malpractices against the respondents. Therefore, the ground of appeal from which issue No. 2 was formulated is incompetent. Issue NO.2 and all the arguments proffered on it by the appellant in his brief are hereby struck out.
Secondly, it is the decision of the Tribunal that the petition is void for non-joinder of necessary parties in violation of the mandatory provisions of section 144(2) of the Electoral Act, 2006. This Court has affirmed the said decision in this appeal therefore, there is nothing left to consider in Issue No. 2.
I, therefore, resolve Issue NO.2 against the appellants. I find no merit in this appeal and it deserves to be dismissed.
Accordingly, this appeal is hereby dismissed. The judgment of the Tribunal in petition No. EPT/HA/C/4/2007 delivered on 1/12/2007 is hereby affirmed. Parties shall bear their costs.
Appeal dismissed.
Other Citations: (2008)LCN/3063(CA)
