Ehigie Edobor Uzamere V. Pharm. Matthew Aisagbonridon Urhoghide & Ors (2009)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J. C. A.
These appeals arose from the Judgment of the Governorship and National Assembly Elections, Petitions Tribunal of Edo State, (Lower Tribunal, Lower Court) delivered on the 26/6/08.
Elections were held on the 21st day of April, 2007 for the office of the Senator to represent Edo South Senatorial District of the National Assembly. The Appellant Ehigie Edobor Uzamere (in appeal No. CAIB/EPT/260/2008) contested that election on the platform of the Peoples Democratic Party (PDP) while the 1st Respondent Matthew Aisagbonridon Urhoghide was the candidate of the Action Congress (A.C.) 2nd Respondent in this Appeal.
At the conclusion of that election where a total of seven candidates contested, the Appellant was returned as elected with 328,607 votes, while the 1st Respondent Polled 34,013 votes. The Petition was fought on the Amended Petition of 20 paragraphs (see pages 249-262 of the record. The Petition generally alleged sundry crimes and non-compliance with the Electoral Act 2006. At the end of the trial of the Petition the lower tribunal after hearing the Petition nullified the election in Edo South Senatorial District held on the 21st of April 2007, and directed INEC to conduct a fresh election for the Senatorial District within 90 days from the 26/6/08 the date the Judgment was delivered.
Dissatisfied with the said Judgment the Appellant in 260/08 Ehigie Uzamere, appealed to this Court on 13 Grounds from which 7 issues were distilled. The Peoples Democratic Party (PDP) appealed in 261/08. Dissatisfied with some parts of the Judgment, Matthew Aisagbonriodion Urhoghide Cross Appealed in appeal No. 262/08, while INEC and its officials appealed in 263/08.
Consequent upon the orders of this Court, the four appeals were consolidated as one appeal. The Appellants were granted leave to amend the notice of appeal on the 3/03/09. Issues were joined by parties and briefs were filed in respect of the appeal and cross appeal.
For the first time, the Appellant raised the question of the jurisdiction of the lower Tribunal to hear the Petition on the basis that the Petition was filed out of time and therefore statute barred.
E.C. Ukala SAN learned Counsel for the Appellant distilled seven issues for determination thus:
1. Whether the Tribunal was right in relying on the evidence of alleged non-compliance with the electoral Act and irregularities discovered from documents in evidence to invalidate the election of the Appellant when
i. It had found that there were reasonable doubts as to the capability of the Appellant in those acts Umeh Constitute Criminal Offences; and
ii. The affected Electoral officials were never joined as parties to the Petition?
2. Whether the tribunal was right in its decision that there was improper accreditation, non-stamping of result sheets, under supply and over supply of ballot papers, cancellations and mutilations of result sheets, non correlation between forms EC8A(1) and EC40A, disparity between voters register and unit figures, absence of photographers on voters register, indiscriminate markings of voters register, filling of result sheets outside INEC designated units, non-account of ballot papers etc on the basis that some of them are evidence that do not need to be pleaded and some of those allegations are within the ambit of law and need not be pleaded when the allegations are material facts which ought to be specifically pleaded? (Distilled from Ground 2)
3. Whether the Tribunal was right in examining and relying upon documents dumped on it including statements of results form EC8A(i) EC8B(i), EC8C(i), EC8D(i), EC25A, EC40A and Voters Registers among others and therefore reaching the conclusion that there were irregularities in the documentation of the election and its results when those documents were never demonstrated by witnesses made available for Cross examination on such demonstrations? (Distilled from Ground 3).
4. Whether the Tribunal was right in relying upon counter-part result sheets (which were not tendered by their makers) for its conclusions? (Distilled from Grounds 4, 5 and 7)
5. Whether the tribunal ought to have dismissed the Petition having found that the Appellant scored the majority of lawful votes in the election? (Distilled from Grounds 8 and 9).
6. Whether the nullification of the election of the Appellant is justified (Distilled from Ground 10).
7. Whether the Election Petition Tribunal had jurisdiction to entertain and determine the Election
Petition subject matter of this appeal? (Ground 13).
Chief Wole Olanipekun SAN for the 1st and 2nd Respondents in each of the appeals and the Cross-Appellant in appeal No. 260/08, with a few changes in emphasis, distilled essentially the same issue for determination and urged the Court to refer to order 23 Rule 1 (d) of the Federal High Court Rules read together with order 54 Rule (1) of the Rules of this Court in its interpretation of Section 141 of the Electoral Act 2006, particularly when the last day falls on a Sunday. He cited a number of authorities to drive home has point.
Kanu Agabi SAN for the Appellants in 263/08, 1st, 4th – 12th Cross-Respondents in 260/08 argued along side Ukala SAN.
I will adopt the issues identified by the Appellant’s Counsel already set out above in the consideration of this appeal. Out of the seven issues formulated by the Appellant in the main appeal, issue No.7 touches on jurisdiction i.e. whether the lower tribunal had the jurisdiction to entertain and determine the Election Petition subject matter of this appeal.
Jurisdiction is the life blood of adjudication in a Court of Law, and being a threshold issue, it must therefore be decided and determined as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial is conducted, the trial would amount to a nullity, and an exercise in futility. See JOHN EBHODAGHE V. CHIEF OMOKHAFE (2004) 12 SCNJ. 175 CHIEF ELIGBE V. CHIEF OMOKHAFE (2004) 12 SCNJ 106; The above principles stated above are the general position of the law as regards jurisdiction.
In view of the importance attached to the issue of Jurisdiction in Law, I will take issue No. 7 which deals with the issue of Jurisdiction first.
The disposal of this issue one way or the other will determine whether this appeal fails or succeeds. If the issue of jurisdiction is dismissed, I shall proceed to deal with the other issues. If on the other hand the lower Tribunal had no jurisdiction to entertain and determine the Petition, then this Court will have no jurisdiction to go into the appeal proper, and the other issues. See the case of ALHAJI BARI BUDO NUHU V. ALHAJI ISOLA ARE OGELE (2003) 12 SCNJ. 158.
Learned Senior Counsel for the Appellants argued that the 1st Appellant in appeal 260/08 Ehigie Uzamere was declared winner of the April 21st Election on the same April 21st 2007. The Appellants had argued that once an election result is declared, the cause of action is complete for any aggrieved person to file a Petition. Counsel submitted that Section 141 of the Electoral Act 2006 provides that an Election Petition must be presented within 30 days from the date the result of the election is declared. Counsel laid emphasis on the words “under this Act”, “shall” , “within” and “from the date of the result of the election is declared”, and urged the Court to hold that the legislature does not employ words used in a statute in vain, and they are employed to express the intention of the legislature.
He cited IFEZUE V. MBA DUGHA (1984) 1 SCNLR 427 AT 456.
2. KALLAMU V. GURIN (2003) 16 NWLR (PT. 847) 493 AT 517.
3. OGBEBOR V. DANJUMA (2003) 15 NWLR (PT. 43) 403 AT 432.
4. ALATAHA V. ASIN (1999) 5 NWLR (PT.601) 32 AT 44.
5. AKUME V. LIM (2008) 16 NWLR (PT.1114) 490 AT 506-507.
Counsel for INEC and its officials in Appeal No. 263/08, and Cross-Respondents in 260/08. Kanu Agabi SAN argued along side the Appellants with minor differences, I need not therefore reproduce the submissions of counsel in 263/08.
However, Counsel for the 1st and 2nd Respondent in all the appeals Chief Wole Olanipekun SAN, in his reply on the issue of jurisdiction, argued that the Electoral Act 2006 is not exhaustive, and that apart from the said electoral Act 2006, the Interpretation Act and Public holidays Act are applicable, as well as the Evidence Act. He cited DAGGASH V. BULAMA & 6 ORS (2004) 14 NWLR (PT.892) 144. He further argued that by the Provisions of Section 74 (1) (g) of the Evidence Act, judicial notice shall be taken of “…. The Public Festivals and holidays notified in the Federal Gazette or fixed by Act.” Accordingly, the Tribunal is also entitled to take judicial notice of the days declared to be holidays by an Act. By the Provisions of Section 1 of the Public Holidays Act, CAP PNO, Volume 14 Laws of the Federation 2004, ” the days mentioned in the schedule to this Act shall be kept as Public holidays throughout Nigeria.” By the provisions of paragraph 4 of the said schedule, May 1st (workers day) was declared a Public holiday. By the clear Provisions of Section 4 of the said Public Holidays Act which provides:
“no person shall be compellable to do any act on a day appointed by or under the provisions of this Act to be kept as a Public holiday which he would not be compelled to do on a Sunday.”
By virtue of Section 6(1) of the Act, no official duty may be done on a Saturday, Sunday or Public holiday by anyone serving in a ministry or Government department except it is requested by a Permanent Secretary or head of any Government Department. By Section 6(3), “reference to Court or Tribunal set up in pursuant to any enactment.”
Counsel contended that even if the computation of the 30 day period statutorily provided for the filing of an election Petition were to be counted or reckoned from 21st of April 2007, the 30 day would fall on the 20th of May, 2007 a Sunday and being a Public holiday the Petitioner could not have been able to file any process on that day. He cited AGBAI V. INEC (2008) 14 NWLR (PT.1108) PG. 417 at 434; KARIYI ALUGBE OBIA V. MARTIN OKONTA & 3 ORS CA/B/EPT/260/2007 decided on 21/2/08.
Section 141 of the Election 2006 provides as follows: –
“An election Petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
(Underlining mine for emphasis)
I have gone through the arguments and authorities in the briefs relied on by the parties.
The point In contention in this issue of jurisdiction is the application of either the Interpretation Act or the Federal High Court (Civil Procedure) Rules 2002 or both in the determination of the thirty (30) day period stipulated in Section 141 of the Electoral Act 2006, a period within which an Election Petition must be presented from the date of the declaration of the result of the election.
Section 1 of the Interpretation Act referred to by learned Counsel in their briefs provide.
“S.1 This Act shall apply to the provisions of every enactment except in so far as the contrary intention appears in this Act or the enactment in question.”
S.15 (2) (a) “A reference in an enactment to a period of days shall be construed where the period is reckoned from a particular event as excluding the day on which the event occurs.”
Order 23 Rule 1(b) of the Federal High Court (Civil Procedure) rules 2000 provides: –
“Whereby any written law or any or any special order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceedings, and the time is not limited by hours, the following rules shall apply (b) the act or proceeding shall be done or taken at least on the day of the limited time.”
The question of when the time limited starts to run is not disputable, but when it expires if the last day fell on a Sunday. The Respondents have argued that where, as in this case, the last day fell on a Sunday, that the following day Monday is the last day.
The provisions of the Interpretation Act does not necessarily apply in all cases of construction of Acts of National Assembly or other enactments. Its application is subject to two limitations. One is in-built in the Act itself and the other based on case law.
The other limitation is imposed by case to the effect that clear, explicit and unambiguous provisions of an enactment must be given their natural, literal and grammatical meanings without a resort to any internal or external aid in construction. See BAKARE V. N.K.C. (2007) 17 NWLR (PT.064) p. 606 AT 621. Where the Supreme Court on construction of clear and unambiguous words of statute held:
“Where the provisions of a statute is plain and unambiguous the words have to be given their ordinary and natural meaning. It is unnecessary to resort to other canons of interpretation unless the ordinary and natural meaning leads to absurdity. A Court is enjoined to interpret the provisions of law and give it its grammatical and ordinary meaning and ‘not to ramble and distort its construction…”
See also A.G. ONDO STATE V. A.G. EKITI STATE (2001) 17 NWLR (PT.743) page 706.
I have already reproduced the said Section 141 of the electoral Act 2006. This provision has been interpreted and applied in a number of decisions of this Court.
There is no doubt that the provision of S.141 of the Electoral Act 2006 makes provision for a limitation of time. The provision allows for 30 days within which to file an Election Petition. With respect to every situation where limitation of time is involved the bottom line is when does time begin to run and when does it end. It is always very important to put these questions under proper focus and perspective. Over the years, the Courts have grappled with this issue in a number of its variant forms. The journey had not always been an easy or smooth one. It is however trite that time begins to run for purposes of limitation of time when a cause of action accrues. It may also be considered as trite that cut off period is reckoned from the date the cause of action accrued to the end of the number of days, months or years provided under the relevant limitation of time statute. It is therefore necessary for the purpose of determining the limitation period in any given case to consider the facts and circumstances of the case. This is because certain features of particular cases present unique settings that would require a unique approach.
Against this background and in the course of time, this Court has appeared to me to have taken a settled position that the words used in S.141 of the Electoral Act 2006, as set out hereinabove, are devoid of any esoteric or arcane connotation. They are clear and unambiguous. This court has also decided that in the con in which each of the operative words of the section are used there is no need to resort to internal or other aids in the construction of the provisions.
Here I am referring to the decisions of this Court in SHERRIF V. KUMALIA, AKUME V. LIM OGBEBOR V. DANJUMA, ALATAHA V. ASIN, ACTION CONGRESS & ANOR V. JANG, UMARU & ANOR V. ALIYU etc. The combined effect of all these decisions is that all election petitions must be filed within 30 days from the date of the declaration of the result of that election. And in the circumstance 30 days mean 30 days and no more. The curious part of all these decisions is that they are taken to mean that 30 days must include the last day even if it fell on a Sunday or any public holiday.
Be that as it may, the next question to consider is when did the cause of action accrue in this appeal? While Counsel to Senator Uzamere, PDP and INEC maintain that the cause of action became complete and accrued to the 1st and 2nd Respondents/Cross Appellants on the 21-04-07 when the result of the election was declared, Counsel to the 1st and 2nd Respondents argue and maintain that the cause of action accrued on 22-04-07, when the result was declared. It is however common ground between Counsel and not in dispute that the election Petition that gave rise to this appeal was filed on 21st May, 2007.
This issue of when the election result was declared was not an issue before the lower Tribunal and therefore no finding was made on it. Also, the issue of the competence and jurisdiction of the lower Tribunal to entertain the petition that led to this appeal based on having been filed out of time was not raised, canvassed or argued. Consequent upon the leave granted to the appellants to raise this issue as a fresh point of law on appeal it has now assumed a ubiquitous presence.
Not doubt the issue of jurisdiction is a very radical and crucial thing in the adjudication of any matter. This is so trite and has been clearly underscored earlier in this judgment. It has also been emphasized that courts of law being creatures of the Constitution and statutes must adhere to the jurisdiction provided and circumscribed for them therein Courts had in this wise been admonished to expouse but not to expand their jurisdictions even while being jealous and zealous in doing so. See A.G. LAGOS STATE V. DOSUNMU. Because of the importance of jurisdiction in adjudication it can be raised as a new point on appeal, as it is has now been done in the instant appeals. As a matter of law, it can be raised at any stage of the proceedings, even on appeal in the Supreme Court, particularly if there are sufficient reasons to establish want of jurisdiction, ex facie, on the face of the compiled and transmitted record of appeal. See SALATI V. SHEHU (1986) 1 NWLR (PT.15) 198 and SAUDE V. ABDULLAHI (1989) 4 NWLR (PT.116) 387.
After having considered all the arguments and submissions of respective learned Counsel as well as the decided cases and statutory provisions referred to by them in their respective briefs, I wish to recall our decision in RASAQ OSAGIE V. OBAHIAGBON & ORS. APPEALS No. CA/B/EPT/122/08, CAIB/EPT /123/08 (Unreported) Judgment delivered on 21/05/09 to the effect that determining when the result of any election was declared as the date therefore, a reference must necessarily be made to the relevant INEC declaration of result form. Where this document is in evidence, a resolution of any issue relating thereto becomes quite a simple exercise because once documents are properly tendered and admitted in evidence they are left to speak for themselves. This exercise is also strengthened by the fact that documents convey a probability of the truth of a matter than a verbal or oral narration of an event. Added to this, when a document is said to speak for itself, its connotation is that the parties cannot give evidence contrary to its content. See Section 96 and 132 of the Evidence Act and IDOWU V. AIKI.
In the circumstances of the instant appeals, the final declaration of results form has been put in evidence before the lower Court. It was duly admitted in evidence at page 2334 of the record of appeal and marked as Exhibit 196. This Exhibit is INEC Form EC8D (1) and being the final collation of result for the election into the Edo South Senatorial District. One of the 7 Local Government Councils that constitute the Edo South Senatorial District is Ikpoba Okha Local Government. The collated result for the Senatorial election for that Local Government is Exhibit 130. It was tendered, admitted and so marked at page 1667 of the records of appeal.
This Exhibit 130 is of great effect because at pages 2355 of the record of the lower Court made a finding that no specific allegations of electoral malpractices were made with respect to the elections in Ikpoba Okha. The lower Court looked at and scrutinized all the polling documents tendered except those of Ikpoba Okha because no issues were joined on them. See page 2359. The result declared for this Local Government was therefore adjudged to be correct and authentic. The scores recorded for each of the candidates were left intact and credited to them as valid votes. The best beneficiaries of this exercise are the Appellant and the 1st Respondent.
I have carefully put these 2 documents in proper focus and I am of the view that they are relevant for the purpose of determining when the election results for Edo South Senatorial District was declared. This relevance is founded on the principle that where a document is received in evidence a Court can properly have recourse to it and examine same for the purpose of interpreting its contents. Also, where a document exists and is tendered and admitted by the Court in the course of trial, this prima facie entitles the Court to have recourse to it and make use of same in the resolution of disputes between the parties. See F.B.N. PLC V. IBENNAH (1996) 5 NWLR (PT.451) 725, NGWU V. NNAJI (1991) 5 NWLR (PT.189) 18 and BUBA V. THE STATE (1992) 1 NWLR (PT.215) 1.
On Exhibit 196 (Form EC 8 D (i) the Collation Officer Mr. Oghogho A.D. Oviasu signed and dated the result on 21-04-07. Just below his signature, however, were the signatures of Mr. Martins Osakue and that of Roland Izevbuwa. The signature of Martins Osakue was dated 22/04/07 but that of Mr. Roland Izevbuwa does not appear to me to have a very clear date on it. On this same Exhibit 196 is the Senatorial election result for Ikpoba okha Local Government, along with the result of 6 other Local Governments. The entry against this Local Government shows that a total of 26,973 votes were cast for the various political parties at the election.
This total number of votes on Exhibit 196 completely agree with entries on Exhibit 130. Without any doubt, therefore, Exhibit 130 is an integral part of Exhibit 196. Curiously, the INEC Collation Officer for Ikpoba Okha Local Government, Mr. Omotiloye J. Olugbenga signed and dated same on 22/04/07.
Added to this, the party agents for PDP, Fresh Party, ANPP, PPA and AC each respectively signed and dated his signature on 22/04/07. There is therefore a seeming conflict between the dates on Exhibits 196 and 130. Both of these Exhibits are credible and genuine documents having been duly certified by INEC. This Court must therefore give them due weight because they each have a full probative value. It is the duty of this Court, in the circumstance, to test the probability of each party’s case by reference to relevant documents which represent evidence of unassailable character. See EBBA V. OGODO (1984) 4 SC 84.
By virtue of the provisions of Section 114 of the Evidence Act, once a document is shown to be a Certified True Copy it is presumed to be genuine. The genuineness also extends to its contents. This is however a rebuttable presumption. Relying on OMOBORIOWO V. AJASIN (1984) 1 SC NLR 108, this Court held on the case of JALINGO V. NYAME (1992) 3 NWLR (PT.231) 538 that there is in law a rebuttable presumption that the result of any election declared by the returning officer is correct and authentic. And this also extends to any of the entries made on the results declaration documents.
At this stage I think it is relevant to refer to the provisions of S.125 of the Evidence Act which raises a presumption as to the date of a document. This provision allows a Court the latitude to presume the fact on the date on a document to be the date it was made. Where several documents are dated on the same date, the determination of the time of execution will be ascertained by reference to the order necessary to effect the object of the execution of the document. Though evidence is admissible to show that the date on a document is wrong, this Court is handicapped to the extent that it cannot take any fresh evidence in order to determine this issue of jurisdiction one way or the other. See AWOJUBAGBE LIGHT INDUSTRIES LTD V. CHINUKWE (1995) 1 NWLR (PT. 390) 379.
Further to the above, the issue of jurisdiction must be decided on undisputed credible facts because of its cornerstone effect in the adjudication of any matter. Also, and added to this, a Court is mandated to guard its jurisdiction zealously and jealously. Therefore for any decision or finding to be made for or against the jurisdiction of any Court, the entire circumstances must show and support a decision one way or the other.
Now coming to the facts and circumstances of this matter, though it is only INEC that is statutorily conferred with powers to conduct and declare results in a Senatorial election, each of the political parties that participated in any election is statutorily entitled to appoint its agent to attest to the result of the election. Where a political party avails itself of the opportunity and appointed an agent for any election, it is fully bound by any act of that agent as to the conduct or declaration of the result of the election, in the absence of any fraud or any other illegality tending to show facts to the contrary.
The PDP is one of the appellants herein and has admitted before the lower Court that it scored 328,607 votes in the election for Edo South Senatorial District. These 328,607 votes were as set out in Exhibit 196. Mr. Martins Osakue was the agent of the PDP for the election in question. He signed and dated his signature on Exhibit 196 on 22/04/07. It is very logical to surmise that according to the PDP everything about Exhibit 196 is correct and accurate. This is added to the fact that Exhibit 196, as a CTC is presumed to be genuine and correct by virtue of S.114 of the Evidence Act.
Exhibit 130 is incorporated and formed an integral part of Exhibit 196. All the signatures on Exhibit 196 tend to show that the result of the senatorial election in that Local Government was declared on 22/04/07. Mr. Osazuwa, the PDP agent was the first to sign Exhibit 196 ahead of the 4 other political party agents, including Mike Osagiedo, the agent of the 2nd Respondent (AC) herein. The signatures of the party agents immediately followed that of the INEC Collation Officer, Mr. Omotiloye J. Olugbenga. He dated his signature on 22/04/07. INEC is also an appellant herein. It also certified Exhibit 130 as true and correct. Mr. Omotiloye Olugbenga, by virtue of the Electoral Act 2006 was the agent of INEC for the purpose of conducting the Senatorial election at Ikpoba Okha Local Government and was statutorily empowered and enabled to declare the result as he did in Exhibit 130. In the absence of fraud or any illegality or wrong doing INEC is fully and absolutely bound by the acts of its agents under the legal principle that he who does something through another does it by himself.
(Qui facit per alium facit per se).
The votes cast in the election were primarily for the PDP under the principle in the case of ROTIMI AMAECHI as well as for the candidate of the PDP. By necessary extension therefore, the agent of the PDP for this election also became the agent of the appellant, Chief Uzamere. On preponderance of facts it therefore cannot be said that the result of this election was declared on 21/04/07. All the arguments of Counsel in that direction go to no issue and they do not appear attractive or acceptable to me. Because of the seeming conflict on the date of declaration of result, I am unable to accept it as fully established that the result of the Edo South Senatorial election was declared on 21/04/07. Rather, I am inclined to accept and hold that it is most improbable that the result was declared on 21/04/07. I would even go further to accept and hold that the result was most probably declared at a date after 21/04/07. The 22/04/07 appears as the earliest most probable date the result could have been declared in view of the relevance of Exhibit 130 against Exhibit 196.
In consequence of the foregoing, I hold that the cause of action in this matter accrued to the Petitioners/1st Respondent/Cross Appellant on 22/04/07. It was from that date that he had 30 days to file his petition against the outcome of the election. All the parties herein are ad idem that the petition, as borne out by all available record, was filed on 21/05/07. The period of 30 days from 22/04/07 fell on 21/05/07. There is no doubt that the filing of the petition fell squarely and fully within the period contemplated and provided by 8.141. This petition was therefore filed within time and was not caught up by the 30 days period of limitation. It was properly and regularly filed. It was not statute-barred. The lower Tribunal was seised of the necessary jurisdiction and competence to entertain it as it did. I accordingly so find and hold. This issue of jurisdiction is therefore decided in favour of the 1st and 2nd Respondents/Cross Appellants against all the Appellants/Cross Respondents.
Having disposed of the Issue of jurisdiction as argued by respective learned Counsel in this appeal, I now have to proceed to decide this appeal on its merits as in situations of this nature. To do this, I wish to first of all take and consider issues No. 5 and 6 together as formulated and argued by learned Counsel Mr. Ukala SAN.
This approach is both compelling and significantly expedient in view of the approach of Learned Counsel in paragraph 112 at page 31 of his amended brief of argument where in arguing issue No.6 he began by adopting all his earlier arguments on grounds 1 – 5. At the risk of being repetitive, but for the sake of abundant clarity, I hereby set out issues No.5 and 6.
5. Whether the Tribunal ought to have dismissed the petition having found that the Appellant scored the majority of lawful votes in the elections?
6. Whether the nullification of the election of the Appellant is justified.
Learned Counsel Mr. Ukala SAN argued issues 5 and 6 at pages 27 to 33 of his amended brief of argument. In arguing issue 5 learned Counsel referred to a part of the judgment of the lower Court at page 2364 of the record and pointed out that the lower Court found as a fact that the appellant scored a majority of lawful votes in that election. He further referred to page 2377 of the record and explained that the election involved in this appeal was not a Presidential or Governorship election where percentage votes spread is mandatorily required.
Further to this the learned SAN, quoted from the judgment at pages 2379 and 2380 of the record along side the provisions of section 147(1) of the Electoral Act 2006 and conceded that the power of the lower Court to nullify an election in an appropriate case cannot be denied. He, however, asked the fundamental question whether in this case that power was regularly and properly invoked and applied. In his effort at answering this question he raised, learned Counsel Mr. Ukala SAN reproduced and fully analysed the provisions of S. 147(1) and 147 (2) of the Electoral Act. Against this background, he explained that the lower Court will not apply Section 147(1) whenever S.147 (2) applies as the election must be subjected to S.147(2) before S.147(1) could be invoked and applied.
Further to this, learned Counsel suggested that when the lower Court found as a fact that the appellant scored the majority of lawful votes it was squarely within the ambit ofS.147(2).
Learned Counsel underlined and emphasized the latter part of S.147(2) and submitted that it is clear that the primary duty of the Tribunal was to declare as elected the candidate who scored the highest number of valid votes cast at the election. He then argued that with respect to this election once the lower Court found as it did its only duty was to declare the candidate with majority of such lawful votes as the duly returned and elected candidate. Learned Counsel went to the nitty-gritty and explained that the lower Court had held that all the other votes recorded in that election were not valid but found as a fact that the only valid votes 23,221 for AC and 48,554 for PDP. He then added that between these two sets of valid votes 48,554 which the PDP and its candidate scored is the highest.
While referring to the cases of OGIDI V. THE STATE (2005) 5 NWLR (PT.918) 286 at 327 C-G and NNONYE V. ANYICHIE (2005) 2 NWLR (PT.910) at 649 H – A.
Mr. Ukala SAN, of Counsel submitted that the word “shall” as used in S.147 (2) connotes mandatoriness. Also related to this submission is the argument of Counsel that once S.147 (2) applies, then S.147 (1) cannot apply as the latter is subject to the former. On the effect of the expression “subject to” when used in an enactment. Learned Counsel referred to ALAMIEYESEIGHA V. F.R.N. (2006) 16 NWLR (PT. 1004) 1 at 91-92 and NGIGE V. OBI (2006) 14 NWLR (PT.999) 1 at 227 B-E.
Coming back to the effect of S.147 (1), learned Counsel Mr. Ukala SAN submitted that the lower Court fell into a gross error when it nullified the return of the Appellant by invoking S.147 (1) at paragraph 2 in pages 2377 to 2380 of the record. Linking up these submissions learned Counsel maintained that upon a finding that the Appellant scored a majority of valid votes, the lower Court had a duty to declare him as the duly elected candidate and must proceed to dismiss the petition for lacking in merit. He also maintained that that duty was more imperative with the finding of the lower Court that the petitioners did not prove the electoral offences which they alleged against the appellant. According to Learned Counsel a petitioner who alleges non-compliance in an election can only succeed if he demonstrates that the noncompliance affected the result of the election as declared. He added that the effect of the finding to the effect that the Appellant scored the highest number of valid votes cast in the election is an implied concession that any acts of non-compliance found in the election did not affect the outcome of the election. He referred to the case of HARUNA V. MODIBBO (2004) 16 NWLR (PT.900) 487 at 552 F-G and 577 – 578 G-A and urged this Court to decide this issue in favour of the appellant.
The pre-eminent position of issue NO.6 in this appeal as the mother of all the issues in this appeal was re-emphasised and underscored by learned Counsel Mr. Ukala SAN in his opening arguments on it. He did this by adopting all the arguments already tendered in respect to issues 1-5. He then further argued that in the circumstances of this matter, the petitioners at the lower Court had a duty which went beyond the allegation and proof of malpractices at the election but must also prove that the malpractices affected the result of the election. Against this setting learned Counsel pointed out that the whole gamut of the petition was founded on allegations of commission of crimes and if these allegations were to be expunged from the petition there would be nothing to sustain it. While referring to findings of the lower Court, Mr. Ukala SAN submitted that it found as a fact and held specifically that the alleged crimes were not proved. He then maintained that the consequences of this finding left nothing to sustain the petition.
Closely related to the foregoing submissions, the learned SAN explained that what matters in a legislative House election is that the person returned scored the highest number of valid votes and added that since the lower Court found as a fact that the Appellant scored the highest number of valid votes in that election the nullification of his election is not justified. He urged this Court to decide this issue in favour of the Appellant.
With respect to appeal No. 263/08, Learned Counsel Chief Kanu Agabi SAN formulated his issue NO.4. It was argued along with his issue NO.7 at pages 32 to 55 of his amended brief of argument. Issue NO.4 as argued by Learned Counsel Chief Agabi SAN is complementary and fully supportive of the various arguments and submissions of Mr. Ukala SAN on his issues 5 and
6. With the greatest respect, this is not to take away anything from Learned Counsel Chief Agabi SAN but for the purpose brevity and avoidance of prolixity. Also in this regard are the arguments of learned Counsel Elder Aghimien SAN, on his issue NO.2 at pages 19 – 25 of his brief of argument.
In their Amended brief of argument dated and filed on 3/03/09, the 1st and 2nd Respondents adopted and argued the 7 issues formulated and argued by Learned Counsel Mr. Ukala SAN but only with a slight modification of issue No.3. Issues No.5 and 6 were separately argued by Learned Counsel Mr. Mozia on behalf of the 1st and 2nd Respondent at paragraphs 7.00 – 8.19 of his amended brief of argument.
In arguing issue No.5, Learned Counsel referred to the specific findings of the lower Court at pages 2374 – 2375, 2364 and 2380 as well as 2377 and 2378 of the record of appeal and submitted that the lower Court, in arriving at these findings and conclusions, took into consideration all manner of admitted credible evidence. He then specifically referred to the finding at page 2380 and submitted it was unimpeachable Learned Counsel Mr. Mozia further argued that all these findings cannot be reversed because they are not perverse. In what appears to be a “hard sell” fact Learned Counsel submitted that where it is held that an election was invalid or void, no meaningful or valid votes or result can be obtained in the circumstance by any political party or its candidate in the election. In a further effort learned Counsel referred to the definition of the word “invalid” at page 843 in the 8th Edition of Black’s Law Dictionary and the case of OMOYINMI V. OLANIYAN (2000) 4 NWLR (PT.651) 38 at 58 B. as well as the meaning of the word “void” in the case of BURAIMOH V. KARIMU (1999) (PT.618) 310 at 323-324 H-B.
Against the foregoing background, Learned Counsel submitted that the election having been adjudged to be invalid, null and void and not legally binding was without basis and cannot be said to have votes accruing to any party upon which the appellant can ordinarily claim victory. While referring to S.147 (1) of the Electoral Act 2006, Learned Counsel maintained that the lower Court duly determined that the Appellant was not duly elected on the grounds of falsification of results and non-compliance with the provisions of the Electoral Act. He submitted that the nullification of the election was in consonance with the provisions of the law.
He referred to the case of AWOYOOLU V. ARO (2006) 4 NWLR (PT.971) 481 at 492 G-H and urged this Court to resolve this issue in favour of the 1st and 2nd Respondents.
In arguing issue No.6, Learned Counsel Mr. Mozia submitted that this issue can easily be disposed of by the pleadings in the petition and the evidence adduced in support as well as the findings of the lower Court. He then argued that it is evident from the judgment appealed against that upon finding that sundry allegations of Electoral malpractices and non-compliance with the provisions of the Electoral Act were duly proved the lower Court did not simply single out the Appellant for sanction by selectively nullifying his votes and preserving the votes scored by the 1st Respondent and other candidates. Rather, argued Counsel, what it did was to cancel the votes of all the candidates that were put in issue in such polling units, wards, or Local Government Areas.
To counter the argument of Learned Counsel Mr. Ukala SAN and other Counsel to the Appellants, Mr. Mozia, of Counsel, explained that there is no gainsaying the fact that whatever any INEC official did during the election would affect the election and the result therefor in one way or another. To this, he added that if INEC officials acted fairly and in an unbiased manner, it would come to bear on the overall assessment of the voting exercise and the election would be adjudged as free and fair. He then pointed out that in this case, the officials of INEC took part or connived with agents of the PDP to rig the election in favour of the Appellant and his party. He also argued that this unholy alliance of INEC and the PDP was a clear violation of the Electoral Act.
According to Learned Counsel, the decisions of the lower Court on this petition were not predicated on the provisions of S.147 (2) of the Electoral Act. Consequent upon that, Learned Counsel maintained that there was no basis for the Tribunal to embark on a consideration of an alternative candidate to declare as the winner. He urged the court to resolve this issue against the Appellant.
With respect to appeal No. 263/08, Learned Counsel Mr. Wole Olanipekun SAN filed and argued a preliminary objection in the brief of the 1st and 2nd Respondents dated and filed on 5/03/09. The preliminary objection seeks to challenge the competence of appeal No. 263/08 because all necessary parties were not joined.
Learned Counsel Chief Olanipekun SAN highlighted and emphasized the point that the declared winner of the election whose election was nullified by the lower Court was not made a party to the appeal. He then argued that all the substantive orders made by the Tribunal were directed at the return of the said omitted party who was the 2nd Respondent before the lower Court Chief Olanipekun SAN maintained that with reference to section 149 of the Electoral Act it is inappropriate and inconsistent with its role as an impartial arbiter for INEC to appeal against a judgment without joining the loser at the lower Court against whom the orders appealed against were made. He urged this Court to determine that the appeal is incompetent and to dismiss same accordingly.
In his reply to the preliminary objection, Learned Counsel Chief Agabi SAN, submitted that the winner of the election which was nullified had himself filed an appeal before this Court in Appeal No. CA/B/EPT/260/08, challenging the judgment of the lower Court. According to Chief Agabi SAN it is preposterous and against the run of judicial authorities to join him as a Respondent in this appeal and maintained that Chief Uzamere is neither a necessary nor proper party in this appeal as it can be completely and effectually determined without the necessity of joining him. While pointing out that the appeals had been consolidated and Chief Uzamere is a party in the consolidated appeal, he urged the Court to dismiss the preliminary objection.
With respect to the main appeal, issue NO.1 in the amended brief appears to me to have fully taken care of the arguments and submissions of Mr. Ukala SAN on his issues 5 and 6. Learned Counsel Chief Olanipekun SAN argued his issue No. 1 in paragraphs 3.10 to 3.43 at pages 7 to 15 of his amended brief. All the arguments and submissions of Chief Olanipekun SAN on this issue are an elucidation and amplification and fully supportive of those made by Mr. Mozia. I do not think I need to go into them for good and obvious reasons identified herein above.
The preliminary objection of Chief Olanipekun SAN, though in a very simple and straight forward manner, had raised a very fundamental question. Procedurally appeal No. 263/08 ought to have joined all the necessary parties to it. There is no doubt that Senator Uzamere, being the candidate returned and declared by INEC as the winner of the election for Edo South Senatorial
District, is a proper party to the appeal of INEC. He ought to have been joined. However, the failure of INEC to join him faded into insignificance when appeal No. 260/08 was consolidated with appeals No. 261/08, 262/08 and 263/08. Because the non-joinder of Senator Uzamere had not misled or occasioned a miscarriage of justice or prejudice on the 1st and 2nd Respondents, I see no good reason to uphold the preliminary objection of the 1st and 2nd Respondents. It is accordingly dismissed without much ado.
In deciding issues No.5 and 6, I have carefully considered all the above arguments and submissions of respective learned Counsel together with all the decided cases and provisions of the Electoral Act 2006 referred to. I have also perused all the relevant pages of the very copious record of appeal, more particularly the entire judgment appealed against and contained at pages 2292 to 2382 of the record of appeal.
It is significance to, in the circumstance, capture the mind and thinking of the lower Court in its evaluation of the evidence before it. The best starting point for this exercise would be page 72 of the judgment contained as page 2362 of the record wherein the lower Court surmised and held as follows: –
“The knotty question then is: have the petitioners proved the alleged electoral malpractices beyond reasonable doubt? We had at the cradle of this judgment, while evaluating oral evidence, arrived at findings in the 6 Local Government Areas that the testimonies of the witnesses for the Petitioners and the respondents are antithetical to the other. In other words, that there is an impasse in the testimonies thereby creating doubts in the mind of the Tribunal. In such a scenario, the law enjoins the Tribunal to give benefit of such doubts to the alleged wrongdoer(s), that is, the respondents herein. It has to resolve the lingering doubts in its mind, as to the commission of these army of electoral malpractices or corrupt practices, in favour of the respondents, the alleged offenders. On that premise, we hold, under that the aforementioned electoral malpractices or corrupt practices leveled against the respondents have not been proved beyond reasonable doubt by the Petitioners.”
On the allegations of the Petitioners on falsification of results, the lower Court went into a very painstaking and thorough consideration of so much of the documentary evidence before it and decided to invalidate a number of election results. This exercise started at pages 73 of the judgment (page 2363) and ended at page 84 (2374). At the end of it all the lower Court held as follows: –
“Have the petitioners established those acts and serious irregularities against that election? We have thoroughly examined the polling documents, exhibits before the Tribunal, especially the Statutory Forms, Forms EC8A(i), EC8B(i), EC8C(i), EC8D(i), EC25A, EC40A and Voters Registers in the light of the alleged acts of noncompliance and irregularities in the various units, wards and Local Government Areas in the District. Our finding is that thousands of the unit results, complained against, were contaminated by the already analysed acts of non-compliance and irregularities. Only a few of the unit and ward results survived those electoral onslaught.
When the Petitioners thought that all the units complained against were entrapped by those acts of non compliance and irregularities, they had these scores for the parties: AC – 18,253 and PDP – 13015. But they were wrong. Now when the saved votes are added to these scores, they will soar to: AC – 19,024 and PDP – 28,089. In Exhibit 196, Form EC8D(i), Constituency result, the parties obtained these votes from Ikpoba Okha Local Government: AC – 4,758 and PDP – 20,810. If the votes they procured from Ikpoba Okha Local Government are added to their scores, they will balloon to: AC – 23,221 and PDP – 48,554. Obviously, from the final scores, the PDP is in the forefront by a margin of 25,333 votes.”
After these findings the lower Court went further to hold that though the appellant had majority of valid votes credible elections took place only in what it called marginal number of the 1420 Units of the Edo South Senatorial District. The lower Court also held that there were acts of non-compliance and irredeemable irregularities. This finding was principally based on the size of the Senatorial District with regards to the number of Local Government Areas, 77 Electoral Wards and 1,420 polling Units. Upon this background, the lower Court considered its scaling down of the votes of the Appellant from 328,607 to 48,554 to hold that the whole elections were not held in substantial compliance with the provisions of the Electoral Act and Regulations.
It appears that this scenario was operating in the mind of learned Counsel Mr. Mozia when he argued and submitted in paragraph 7.12 of his brief that the election in this appeal was declared and adjudged to be invalid, void and not legally binding and as such cannot be said to have votes legitimately accruing to any party upon which the appellant can ordinarily lay claim to any victory. I find this submission very strange and a total misconception. I have carefully read the entire judgment of the lower Court and I cannot agree with learned Counsel Mr. Mozia that there was any where in the whole length and breadth of it where the lower Court held that the whole election was invalid and not legally binding. Rather, what the lower Court found was that some of the returns on the election were invalid by reason of noncompliance with some provisions of the Electoral Act 2006 and Regulations made pursuant thereto. It only then invalidated the affected unit results and credited the appellant with 48,554 and the 1st Respondent with 23,221 valid votes. The irrelevance of this argument of Mr. Mozia, of Counsel, with all due respect, becomes very clear when it is compared with his submissions in paragraphs 8.01 to 8.04 of his Amended Brief to the effect that the Tribunal only cancelled the votes of all the candidates that were put in issue in such polling units, Wards or Local Government Areas.
According to the provision of S.70 of the Electoral Act, 2006 a person who polled the highest number of votes shall be declared elected by the appropriate Returning Officer. For the avoidance of doubt, it provides thus: –
“70. In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions of sections 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.”
(Underlining mine).
This provision of the Electoral Act 2006 is subject to Section 133, 134 and 179 of the 1999 Constitution. These sections are concerned with elections into the officer of Federal and State Chief Executives. These provisions are for clarity hereby set out in full as follows: –
“133. A candidate for an election to the office of President shall be deemed to have been duly elected to such office where being the only candidate nominated for the election –
a) He has a majority of YES votes over NO votes cast at the election; and
b) He has not less than one-quarter of the votes cast at the election in each of at least two thirds of all the States in the Federation and the Federal Capital Territory, Abuja, but where the only candidate fails to be elected in accordance with this section, then there shall be fresh nominations.
134-(1) A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidate for the election –
a) he has the majority of votes cast at the election; and
b) he has not less than one-quarter of the votes cast at the election in each of at least two thirds of all the States in the Federation and the Federal Capital Territory, Abuja,
(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being only two candidates for the election –
a) he has the highest number of votes cast at the election; and
b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja,
(3) In default of a candidate duly elected with subsection (2) of this section there shall be a second election in accordance with subsection
(4) of this section at which the only candidate shall be –
a) the candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and
b) one among the remaining candidates who has a majority of votes in the highest number of States, so however that where there are more than one candidate with a majority of votes in the highest number of States, the candidate among them with the highest total of votes cast at the election shall be the second candidate for the election.
(4) In default of a candidate duly elected under the foregoing subsections, the Independent National Electoral Commission shall within seven days of the result of the election held under the said subsections, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of President if –
a) he has a majority of votes cast at the election; and
b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall, within seven days of the result of the election held under the aforesaid subsection (4), arrange for another election between the two candidates to which the subsection relates and a candidate at such election shall be deemed to have been duly elected to the office of President if he has a majority of the votes cast at the election.
179-(1) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election –
a) he has a majority of YES votes over NO votes cast at the election; and
b) he has not less that one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations,
(2) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates –
a) he has the highest number of votes cast at the election; and
b) he has not less than one-quarter of all the votes cast in each of at least tow-thirds of all the local government areas in the State.
(3) In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be –
a) the candidate who secured the highest number of votes cast at the election and
b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the State, so however that where there are more than on candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate.
(4) In default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if –
a) he has a majority of the votes cast at the election; and
b) he has not less than one-quarter of the votes cast at the election in each of at least two thirds of all the local government areas in the State.
(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for another election between the two candidates to which that sub-paragraph relates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if he has a majority of the votes cast at the election.”
It is important that no person or authority should place on a candidate in an election more burden to be elected than what has been stipulated under relevant laws. See CHIEF AWOLOWO V. SHEHU SHAGARI & ORS (1979) 11 SC 51. In interpreting and applying the provisions of statutes a Court of law should refrain from importing extraneous or irrelevant issues for consideration. In its judgment at 88 (2378), the lower Court held: –
“There is no gainsaying the cold fact that the 1st Petitioner did not score the highest number of lawful votes in that election and cannot be declared the winner.
On the other hand, the paltry score of the 2nd Respondent when compared with the expansive District, at best constitutes majority of lawful votes of the minority.”
From the state of the pleadings and the evidence led on them this decision and finding of the lower Court is unreasonable and totally perverse. The finding is not supported by the provisions of S.70 of the Electoral Act or the facts and circumstances as well as the evidence before the Court. Any reference to a Senatorial District as “expansive” is totally extraneous and irrelevant for the determination of which candidate scored majority of lawful votes in a Senatorial election. In a Senatorial election, like in the instant appeal, the contest is between the candidates of the respective political parties. The physical size or population of the constituency, except where by the pleadings of the parties and the evidence adduced in support of same makes it relevant, is wholly and totally immaterial in determining which of the candidates scored a majority of lawful votes cast at the election.
In view of the foregoing analysis, I agree with the submission of learned Counsel Mr. Ukala SAN that the lower Court fell into error when it considered geographical spread of votes in nullifying the election of the Appellant and ordering a re-run. I also find and hold that in considering the number of Local Government Areas, Electoral Wards and polling units against the quantum of valid votes scored by the candidates, leading to holding that the election was not conducted in substantial compliance with the Electoral Act, the lower Court was wrong. That decision is perverse and unreasonable. This Court has the jurisdiction and indeed must, in appropriate circumstances, set aside any decision of a lower Court it found to be perverse or unreasonable. This is an appropriate circumstance to warrant the intervention of this Court to set aside a perverse or unreasonable decision.
In consequence of the foregoing, the decision and finding of the lower Court that the Appellant scored 48,554 votes against the 23,221 votes scored by the 1st Respondent and also having declared the appellant as having scored a majority of valid votes cast at the election, the lower Court must in that circumstance declare the appellant as the winner of the election. There are no sufficient grounds in the evidence before the lower Court to support or justify the decision that the election was not conducted in substantial compliance with the provisions of the Electoral Act 2006. These 2 findings are hereby set aside for being perverse and unreasonable in the circumstance. Issues 5 and 6 are hereby resolved in favour of the appellant against the 1st and 2nd Respondents/Cross Appellants. Having resolved these 2 issues in favour of the Appellant, I do not see any good or justifiable reasons to go into the other issues in the appeal since the resolution of issues 5 and 6 has, in my view, sufficiently decided the appeal. This appeal succeeds and it is hereby allowed. In consequence of allowing this appeal, the order of the lower Court nullifying the election and return of the Appellant as the duly elected candidate for Edo South Senatorial District of the National Assembly of the Federal Republic of Nigeria is hereby set aside. The order for a re-run election is also set aside. It is hereby declared and determined that the appellant is the duly elected candidate for the Edo South Senatorial District of the National Assembly, having scored the majority of valid and lawful votes cast at the election held on 21/04/07. He is accordingly so declared and returned.
The Cross-Appeal of the 1st and 2nd Respondent is hereby dismissed for lack of merit.
Other Citations: (2009)LCN/3288(CA)
