Adekilekun Abimbola & Anor. V. Independent National Electoral Commission & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal by the Appellants, who were the Petitioners at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Osun State, sitting at Osogbo, in Petition No. HA/EPT/OS/4/2007 against the Judgment of the Tribunal Coram:- Honourable Justices H. Sarka, J. J. Majebi, O. Ipaye, A. A. Aderemi and A. O. Ogie, on the 4th of April, 2008. The facts leading up this Appeal are briefly delivered set out as follow:-
“Elections were held throughout the Federal Republic of Nigeria on the 14th April 2007 into the State Legislative Houses of Assembly. The Petitioner/Appellant contested the election on the platform of Progressive Peoples Alliance (P.P.A.) into the Osun State House of Assembly for Osogbo Local Government State Constituency Seat, and at the end of the election, the 4th Respondent was declared winner of the election by the 1st Respondent, the Independent National Electoral Commission. (INEC).”
Aggrieved by the return of the 4th Respondent at the said election, the Appellant filed a Petition No. HA/EPT/OS/4/2007, on the 14th of May, 2007 against the Respondents on the following grounds: (in summary)
“(a) The Petitioner was validly nominated but was unlawfully excluded from the election.”
The Appellant then prayed the Tribunal that it may be determined as follows:-
“(a) The Appellant (then the Petitioner) was the candidate of the People Progressive Alliance at the 14th April 2007 election.
(b) That he was validly nominated, but was unlawfully excluded from the election.”
The Tribunal entered a considered judgment on the 4th of April, 2008, dismissed the petition as lacking in merit. Dissatisfied with the decision of the Tribunal, the Appellant filed his Notice of Appeal dated and filed on the 23rd April 2008. Having regard to the Grounds of Appeal filed, the Appellant contend that the following are Issues arising for determination in this Appeal:-
(1) Whether the Tribunal was right when it discountenanced the admission of the 1st, 2nd and 3rd Respondents on the Appellant’s valid nomination as a candidate that contested the election and recoursed to facts not pleaded to dismiss the Petition. (Grounds 1 and 3).
(2) Whether the Tribunal made a proper assessment and evaluation of the evidence adduced by the Appellants before concluding that the Appellants have not proved their valid nomination as candidate that contested the April 14th 2007 election. (Grounds 2 and 4).
(3) Whether the joinder of the 6th and 7th Respondents was in issue in the proceedings. (Ground 5).
The 4th Respondent filed his Brief of Argument undated. In the said Brief of Argument, he formulated Three (3) Issues for determination in this appeal from the Grounds of Appeal, and they are:-
(1) Whether the Tribunal was right in holding that the 6th to 9th Respondents herein, are not statutory or necessary parties as contemplated within the provision of Section 144(2) of the Electoral Act, 2006. (Ground 5).
(2) Whether the Tribunal was right in holding that the Petitioners/Appellants have failed to prove the requirements of valid nomination and submission in the prescribed Forms as required by Section 32(1) and (2) of the Electoral Act. (Grounds 2, 3 and 4).
(3) Whether the Tribunal was right to have discountenanced the admission of the 1st, 2nd and 3rd Respondents on the 1st Appellant’s Valid Nomination. (Ground 1).
The 5th Respondent filed his Brief of Argument dated 23rd of June 2008, but filed on the 24th of June, 2008. In the said Brief of Argument, he formulated the following Three (3) Issues for determination in this appeal from the Grounds of Appeal, and they are:-
(1) Whether the Tribunal interpreted rightly the provisions of Paragraph 47(1) of the 1st schedule to the Electoral Act, 2006 which imposes a duty on INEC to defend the election which they conducted.
(2) Whether the Tribunal was right in holding that the Petitioner failed to prove his case of unlawful exclusion.
(3) Whether the 6th, 7th, 8th and 9th Respondents are necessary, statutory proper and or desirable parties in the just determination of this suit?
It is instructive to note at this point that, the 1st, 2nd and 3rd Respondents did not file any Brief of Argument. The Appellant argues the Issues seriatim.
On Issue No.1, the Appellant submitted that, there was the misapplication of Paragraph 47(1) of the 1st Schedule to the Electoral Act, 2006; and Sections 31, 32, 33 and 34 of the Act. The Tribunal raised the point in impugning the 1st, 2nd and the 3rd Respondents’ admission (that the Petitioner was a candidate at the election, whose logo was missing on the ballot), because, they are the Electoral body in charge of the conduct of the Election being complained. The Appellant cited the provision of Paragraph 47(1) and (2) of the 1st Schedule to the Electoral Act, 2006. The Appellant also refers to decision in the case of Ngige Vs. Obi (2006) 14 NWLR (Pt. 999) 1, at 224, 225 which truly states the law. The Appellant further submitted that the decision in the case cited above, is of course, the insurmountable position of law that INEC, its Officials and Adhoc Staff, cannot decline from defending a Petition against the election they conducted, except with the written consent of the Attorney General of the Federation. However, the Appellant further submitted that the paragraph 47(1), as well as the case of Ngige Vs. Obi {Supra} do not say that, INEC Officials and Adhoc Staff cannot make admissions of fact in that Reply, in satisfaction of other Rules to that extent Practice Directions, 2007. The Appellant further submitted that, to hold otherwise as suggested by the Tribunal, would amount to reading into the provisions of Paragraph 47(1) words not found therein. See:- the case of Buhari Vs. Yusuf (2003) 114 LRCN 2802, 2862 (EE); Ojukwu Vs. Obasanjo (2004) 12 LRCN 4799,4830. The Appellant further submitted that, the provisions for Paragraph 12 of the 1st Schedule to the Electoral Act. Also, the Pre-hearing Information Sheet T.F. 008 pursuant to Rule 21 of the same 1st Schedule required at sub-rules 10, 11, and 12, list of Paragraphs of the Petition you are admitting and one’s you are disputing.
The Appellant further submitted that, in view of the law above, it would be horrendous and indeed dishonourable for the 1st, 2nd and the 3rd Respondents to refuse to admit that, the Petitioner was a candidate at the election. The Appellant further submitted that, the peradventure by the lower Tribunal into arrears of matters like format of affidavit of nomination, submission of list of candidates by the Political Parties, whether or not there was compliance with the prescribed forms, is not in the province of the Tribunal. These are pre-election matters that do not fall within the jurisdiction of the Election Tribunal, but the Court; and this is by virtue of Section 32(4), (5) and (6) of the Electoral Act, 2006; and Section 285(2) of the Constitution of the Federal Republic of Nigeria. See:- Amaechi Vs. INEC (2007) 9 NWLR (pt. 1040) 564, 583: Action Congress Vs. INEC (2007) 18 NWLR (Pt. 1065) at 78; Bob Vs. Akpan (Unreported) Appeal No. CA/A/97/M/2007.
The Appellant further submitted that the lower Tribunal again, cannot on its own, delve into the issue of the nomination of the Appellant as it not a live issue in the proceeding. Parties are bound by their pleadings.
See:- Makanjuola Olatunji Vs. Alhaji Muibi Adisa (1995) 2 NWLR {Pt. 376) 167 at 170. Also, see:- Ogidi vs. Oliha (1986) 1 NSCC 363. The Appellant submitted on this Issue that the Appellant/Petitioner’s compliance or non-compliance with Section 32(1) and (2) of the Act, which the Tribunal hinged upon, is unpleaded, unnecessary and irrelevant and has occasioned a miscarriage of justice to the Appellant.
On Issue No.2, the Appellant submitted that, there was the failure on the part of the Tribunal to adequately assess and evaluate the evidence adduced by the Appellants in the proceeding, which made its decision to be perverse on what amounts to a perverse decision. The Appellant refers to the Supreme Court decision in Barridam Vs. State (1994) 1 NWLR (Pt.320) 250 At 260. The Appellant further submitted that, for a Tribunal to produce judgment which is a fair and just verdict on the case put up by two or more contending parties, it must fully consider before it, ascribe probative value to each, make definite findings of facts and apply the relevant law before coming to a conclusion. See:- Leko V. Soda (1995) 2 NWLR (pt. 378) 432 At 436; Olufosoye V. Olorunfemi (1989) 1 NWLR (pt. 95) 26 At 37.
On Issue No.3, the Appellant submitted that, on the joinder of the 6th and 7th Respondents which was not an issue upon the pleadings between the parties, was not subject to adjudication. The Appellant submitted that, the 6th and 7th Respondents are within the provision interested parties whose names were specified in the Petition and are under the constitution entitled to be heard. The Appellant further submitted on the interest of the 6th and 7th Respondents in the proceeding that they were co-contestants in the election in dispute. And in the event of the Court ordering a rerun of the election, they are entitled to run with the Petitioner. The Appellant finally submitted that, the Appeal and Petition should be allowed and the rerun of the election should be order as prayed.
In reply, the 4th Respondent started with the Issue No. 3 of the Appellant’s Brief, on the propriety of the joinder of the 6th – 9th Respondents. The 4th Respondent submitted that, a Court of law has a duty to invite parties to an action, to address it, where it decides to take a point suo-moto. See:- Agbi Vs. Ogbe (2006) 2 EPR 180 At 228 paragraphs E – F. In this regard, the Tribunal invited the parties to the Petition to address it on the issue of Section 144 (2) of the Electoral Act, 2006. The 4th Respondent submitted further that, the 6th – 9th Respondents are not necessary parties to the Petition and therefore ought not to have been joined as Respondents to the said Petition. See:- Buhari Vs. Obasanjo (2007) 1 EPR 112At 131.
The 4th Respondent further submitted that, in interpreting Section 144(2) of the Electoral Act, 2006, the literal rule of interpretation, is to be applied as there is no form of ambiguity in section 144(2) of the Electoral Act, 2006. Election Petition is sui generic and has provided for the necessary Respondents to an Election Petition. The 6th – 9th Respondents are candidates and their respective political party who lost in the election. See:- Buhari Vs. Yusuf (2007) 1 EPR 1 At 18. The 4th Respondent further submitted that, the law is, once a candidate has lost an election, he cannot be made a Respondent to an Election Petition. The 4th Respondent on this Issue, submitted further that, the Tribunal was right in holding that the 6th, 7th, 8th and 9th Respondents are not statutory or necessary parties to the Petition.
On Issue No.2, the 4th Respondent submitted that, the Tribunal was right in holding that, the Petitioners/Appellants did not prove the requirements of valid nomination and submission in the prescribed Form as required by Section 32(1) and (2) of the Electoral Act, 2006. The 4th Respondent submitted further that, to establish valid nomination, the Petitioners/Appellants have the burden to establish that the purported nomination of the 1st Petitioner complied with the provision of Section 32 of the Electoral Act, 2006. The requirements are cumulative and composite and each has to be satisfied before there can be said to be a valid nomination. See:- Nwite Vs. Micheal (2008) 15 NWLR (Pt. 1109) 149 At 170 – 171, Paragraphs H – A. Ehinbanwo Vs. Oke (2008) 16 NWLR (pt. 1113) 357 At 403, Paragraphs D – E, and at 408 Paragraphs E – G. The 4th Respondent further submitted that, the Petitioners/Appellants did not tender document from the INEC Website to show that, the 1st Petitioner’s name was actually published on the INEC Website as pleaded in Paragraph 21 of that Petition.
On Issue No.3, the 4th Respondent submitted that the 1st, 2nd, and 3rd Respondents must remain an impartial body in the Petition or, to stand by the election it conducted; it cannot admit any Paragraph of the Petitioner/Appellant’s Petition. See:- Ngige Vs. Obi (2006) 14 NWLR (pt. 999) 1 At 196 – 197. This is clearly forbidden by Paragraph 47(1) of the Electoral Act, 2006. See also, the case of Ike Vs. Ojokaja (1992) 9 NWLR (Pt. 263) 42. Akinlagun V. Oshobajo (2006) 12 NWLR (Pt. 993) 60. The 4th Respondent finally submitted that, the Tribunal was right in the interpretation given to Paragraph 47(1) and (2.) of the Electoral Act, 2006 and correctly applied same to the instant case at the Tribunal.
The 5th Respondent in its Brief, submitted on Issue 1 that, by the combine effect of Paragraph 47(1) and (2) of the Electoral Act, 2006, 1st Schedule thereto, INEC and its Staff cannot decline from defending the election it conducted. See:- Ngige Vs. Obi (2006) 14 NWLR (pt. 999) 1 At 224 and 225. The 5th Respondent further submitted that INEC by admitting those Paragraphs, did not adduce any evidence, nor produce any document before the Tribunal to show that, they had the consent of the Attorney General of the Federation to so oppose.
The 5th Respondent submitted further that, the provision of the Electoral Act, 2.006 cannot be waived. It is the duty of every court to give effect to an existing statute, whether cited by counselor not. In the instant case, Paragraph 47(1) and (2.) of the 1st schedule to the Electoral Act, 2006, imposes a duty on the INEC and its Official to perform which they cannot deviate from no matter the circumstances. See: the case of Attorney General of Adamawa 5tate Vs. Ware (2006) 27 WRN 170 At 180. Aiso, Ajari Vs. Military Administrator of Ondo 5tate (1997) 5 NWLR (pt. 504) 237 and Odua Investment Ltd. Vs. Talabi (1997) 10 NWLR (pt. 523) 1. The 5th Respondent submitted that, in view of the above, the Tribunal rightly interpreted the obligation imposed on INEC under Paragraph 47(1) and (2.)of the Electoral Act, 2006.
On Issue 2, the 5th Respondent submitted that, the Tribunal was right in holding that, the Petitioner failed to prove unlawful exclusion. Sections 32(1), 32(2), (33)(1) and 34 (1) regulate nomination of a candidate by Political Parties for an election. The 5th Respondent further submitted that, where a Petitioner pleads in his Petition that he was validly nominated and unlawfully excluded, it is a condition precedent for him, to prove his valid nomination before he could complain of unlawful exclusion. The Petitioner failed in this regard and Tribunal was right in holding so. The 5th Respondent further submitted that, electoral process is beyond the date of election. It includes all other process before the election. See:- P.P.A. Vs. Saraki (2007) 17 NWLR (pt. 1064) t 453. The 5th Respondent further submitted that, the admission of 1st, 2nd, 3rd, 6th and 7th Respondents cannot reduce the evidential burden placed on the Petitioner by the law, as same is deemed abandoned as no witness was called in support of their pleadings, because, the 4th and 5th Respondents denied the averments in the Petition thereby putting the Petitioner to the strictest proof.
On issue No.3, the 5th Respondent submitted that, a Court of law has power to raise and determine issues of law, as they arise for proper resolution of any issue. The only duty imposed on the court is to call on parties to address it on the point thus raised. Once that is done, complaints of injustice and or un-timeliness are not tenable. See:- Nsiegbe Vs. Mgbemena {2007) 10 NWLR (pt. 1042) 364 At 377. Western Steel Works Vs. Iron and Steel Works (1989) 1 NWLR At 284. The Tribunal was therefore right to ask parties to address it on the provisions of Section 144(2) of the Electoral Act, 2006. See:- the case of Buhari V. Obasanjo (2007) 1 EPR 112. The 5th Respondent further submitted on the effect of non-joinder or mis-joinder of a party. See:- the cases of Muhammed Buhari Vs. INEC & 5 Others, in CA/A/EPT/2/2007, delivered on 26th February, 2008. The Court of Appeal relied heavily on the cases of Uku Vs. Okumagba (1974) 1 All NLR 475; Chief Abusi David Green Vs. Dr. E.T. Dublin Green (1987) 3 NWLR (Pt. 60) 480. The 5th Respondent further submitted on the joinder of the 6th to 9th Respondents that, there is nowhere in our statutes where a candidate and his party that lost in an election, is expected to defend a Petition. A party that lost and felt aggrieved is at liberty to present a Petition before the Tribunal to challenge the return of the successful candidate. The 5th Respondent finally submitted that, the 6th, 7th, 8th and 9th Respondents are not necessary, proper statutory or desirable parties in which every way it is viewed; and the lower Tribunal was right in striking out their names.
I have carefully considered the arguments proffered by all the parties in this appeal. It is settled law that, the Appellate Court is not bound, or under a duty to take all issues formulated by a party or parties for the determination of an appeal, in order to give decision. See:- Okoro Vs. The State (1988) 12 SC 191; Lenole Vs. The Registered Trustees of Cherubim and Seraphim Church of Nigeria Ugbobia and 3 Others (2003) 3 SCN 39; (2003) 1 SCNJ 463: Latunde & Another Vs. Bella Lafufin (1989) 5 SC 59: 1989) 2 SCNJ 59.
In other words, an Appellate Court can prefer an issue or issues formulated by any of the parties and can itself or on its own, formulated issues which it considers to be germane to and pertinent in the judicious determination of the matter in controversy. See:- Anor Vs. Dr. Anthony Mimsa & Others (200B) 2 SCN S5 At 71. To my mind, the fulcrum of this appeal, is the claim by the Appellant, that as Petitioner in the lower Tribunal, he was validly nominated, but was unlawfully excluded from the election. This is covered by the provision of Section 145(d) of the Electoral Act, 2006.
Section 145(d) of the Act provides-
(d) “that the Petitioner, or its candidate, was validly nominated, but was unlawfully excluded from the election.”
This Court in the case of Effiong Vs. Ekpeme (1999) 6 NWLR (pt.606) 260 At 274 – 275, stated four conditions that must be proved:-
(1) That he was validly nominated by his party.
(2) That the election was conducted and concluded.
(3) That a winner was declared.
(4) That his name was not in the list of contestants.
On the first criteria that the Appellant/Petitioner was validly nominated by his party. This Appeal came with its own peculiarity that the 1st, 2nd and 3rd Respondents in their joint Reply to the Petition at the lower Tribunal in Paragraph 7 of their joint Reply averred that:-
“The Respondents admit Paragraph 24 of the Petition to the extent only that, the 2nd Petitioner’s symbol emblem and logo were conspicuously missing on the ballot papers used for the House of Assembly election In Osogbo Local Government of the 14th April, 2007.”
It further stated in its Paragraph7 of the Reply that:-
“The Respondents aver that through the 2nd Petitioners logo emblem symbol were missing on the ballot papers used for the House of Assembly election in Osogbo Local Government State Constituency on the 14th April, 2007 but the omission was only a genuine mistake on the part of the respondents it was not deliberate.”
This very clear and unequivocal admission made by the 1st, 2nd, and 3rd Respondents should have settled the claim made by the Appellants/Petitioners for unlawful exclusion. The lower Tribunal rejected the admission made by INEC, and called upon the Appellants, then Petitioners before it, to prove valid nomination of the 1st Appellant to the 1st, 2nd, and 3rd Respondents. Also, the 4th and 5th Respondents rejected the clear admission made by the 1st, 2nd and 3rd Respondents on the unlawful exclusion of the Appellants in the election. The 4th and 5th Respondents maintained that, INEC cannot use the filing of Reply as a Respondent, wherein it admits all facts alleged in the Petition, to circumvent the clear mandatory provision of Paragraph 47(1) and (2) of the 1st Schedule to the Electoral Act, 2006 which stipulates that INEC must oppose the Petition except with the written consent of the Attorney General of the Federation. On the lower Tribunal’s rejection of the nomination of the 1st Appellant/Petitioner, which it based on the lack of compliance or non-compliance with Sections 32, 33, 34, 35 and 36 of the Electoral Act, 2006. From the record, it is clear that, the Tribunal raised this issue suo motu, as same could not be traced, or were never raised by the parties in their pleadings. The Tribunal in its judgment contained at Page 339 of the Records states:-
“It cannot be overemphasized that each step enumerated above ought to be complied with and a failure in any of the steps will amount to invalid nomination. In the instant case, the Tribunal accepts the evidence that the Petitioners’ name was proposed by his party to stand for election into the Osogbo Local Government Constituency. This much has been established by the viva voce of Pw1, Pw2, Pw3, and Rw3 which we verily believe. Nevertheless, proposal of a nominee, or intention to sponsor a candidate, is not tantamount to valid nomination. The petitioners ought to go further to show that the nominees’ name was forwarded in a List in the prescribed Form within the time frame as prescribed by the Electoral Act. Secondly, that the List was accompanied by the requisite Affidavits from all the candidates proposed on the List.
In this regard, the Petitioners rely on Exhibits “6”, “7” and “11”. Exhibit “6” is an undated letter from the 2nd Petitioner to INEC, by which the party’s nominees in the general election scheduled for 14/04/2007 were allegedly forwarded. It is the considered view of the Tribunal that, this letter is of probative value for the tripartite reasons that same is undated and consequently; there is no iota of evidence before the Tribunal that the 2nd Petitioner’s list of nominees in the prescribed Form was submitted to the Commission “not later than 120 days before the 14/04/2007 general elections” and we so hold. Secondly, there is no indication ex-facie on the Exhibit that, same was received by the Commission. Thirdly, as required by Section 32(2), there is no evidence that the List as in Exhibit “6” was accompanied by an affidavit sworn to by each of the proposed candidates listed.
Furthermore, Exhibit “7”, which is the nominee’s form that is, 1st petitioner’s nomination form, is dated 12/02/2007 which clearly shows that, as at the said date, the nominee was in possession of his form and same had not been submitted to the Commission at the said date. A simple arithmetical calculation will also show that, a form dated 12/02/2007 by the nominee, could not have been submitted to the Commission 120 days prior to the election in question as prescribed by the Act.
We have also perused Exhibit “11” as Form CF 001, which is the nominee’s Affidavit in support of his personal particulars. We observe that, same was deposed to on the 17/01/2007; and all the Educational Certificates of the nominee, attached to the Affidavit, do not bear the name of the nominee, but that of a stranger. The Petitioners have no explanation for this curious twist and the Tribunal is left with only one conclusion, that not only was the Affidavit Form not submitted to the Commission within the prescribed time frame of 120 days prior to the election in question; the Commission could not have cleared the nominee in view of the fact that the Educational Certificates attached to the Affidavit, do not belong to the nominee with the result that constitutional requirements for the office, were not fulfilled and we so hold.”
The view of this Court is that, the Honourable Tribunal in reaching this decision, did not consider the provision of Section 32(1) and (2) of the Electoral Act, 2006.
Section 32(1) provides:-
“Every political Party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed Forms, the List of the candidates, the parties proposes to sponsor at the election.” Section 32(2) provides:-
“The List shall be accompanied by an Affidavit sworn to by each candidate at the High Court of a State indicating that, he has fulfilled all the constitutional requirements for election into that office.”
This Court is of firm view that, the action of the Honourable Tribunal by going ahead to consider the provisions of Section 32(1) and (2) of the Election Act, 2006, which formed the basis of its decision questioning the nomination of the Appellants to contest, or their claim to have been cleared by the 1st, 2nd and 3rd Respondents to contest the said election, the Tribunal had acted ultra vires in view of the clear provisions of Section 32(4) and (5) of the Electoral Act, 2006 and Section 285(2) of the Constitution of the Federal Republic of Nigeria.
Section 32 (4) of the Act provides:-
“Any person who has reasonable grounds to believe that any information given by a candidate in the Affidavit is false, may file a Suit at the High Court of a State or Federal High Court against such person, seeking a declaration that the information contained in the Affidavit is false.”
Section 32(5) provides:-
“If the Court determines that any of the information contained in the Affidavit is false, the court shall issue an Order disqualifying the candidate from contesting the election.”
Section 285(2) of the constitution of the Federal Republic of Nigeria provides:-
“There shall be established in each State of the Federation one or more Election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals, which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine Petitions as to whether any person has been validly elected to the Office Governor or Deputy Governor, or as a Member of any Legislative House.”
I make bold to say therefore, that in view of the provision of the Constitution and the Electoral Act, the original jurisdiction of the Election Tribunals is clearly defined only in respect of a person validly elected. All pre-election matters which include the nomination of a candidate by the provision of the Electoral Act, are within the jurisdiction of the High Court and or Federal High Court. The Election Tribunals have no jurisdiction over pre-election matters. See:- Amaechi Vs. INEC (2007) 9 NWLR (Pt.1040) 564 At 538; Action Congress Vs. INEC, This Court followed the decision of the Supreme Court in the two cases above in Bob Vs. Akpan (unreported) in Appeal No, CA/A/97/M/2007; and held that, Election Tribunals have no jurisdiction over pre-election matters.
Another worrisome area is that, the 1st – 3rd Respondents had cleared the 1st Appellant and included him in the List; the law is that, is no Court, or Tribunal as in the instant case, can any longer enquire into same. See:- Ibrahim Vs. INEC (1999) 8 NWLR (pt. 614) 525; Bashir Vs. Audu (1999) 5 NWLR (pt. 603) 433 At 441.
Let me now turn to consider the contention of the 4th and 5th Respondents that, the 1st – 3rd Respondents were precluded by the provisions of Paragraph 47(1) and (2) of the Electoral Act, 2006 from admitting in their Reply to the Petition, the omission of the emblem or logo of the 2nd Petitioner in the ballot paper used for the 14th April, 2007 for Osogbo Local Government State Constituency. It is their contention that, by the provision of the Electoral Act stated above, INEC must oppose the Petition, if they have to admit any portion thereof; and it must be with the written consent of the Attorney General of the Federation. In the instant Petition, INEC did not adduce any evidence, nor produce any document before the Tribunal to show that, they had the consent of the Attorney General of the Federation to so oppose. The Tribunal accepted the conclusion of the 4th and 5th Respondents and refused to accept the said admission made by INEC.
Paragraph 47(1) of the 1st schedule to the Electoral Act, 2006 provides:-
“where an Election Petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer, or any other Official of the Commission, he shall for all purposes be deemed to be a Respondent and joined in the Election Petition as a necessary party but an Electoral Officer, a Presiding Officer, Returning Officer, or any other Official of the Commission shall not be at liberty to decline from opposing the Petition except with the written consent of the Attorney General of the Federation.”
Paragraph 47(2) provides:-
“If consent is withheld by the Attorney General under sub-paragraph (1) of this Paragraph, the Government of the Federation shall indemnify the Electoral Officer, Presiding Officer or such other Official of the Commission against any cost which may be awarded against him by the Tribunal, or Court in respect of the Election Petition.”
Considering the construction to be given to the provision of the Electoral Act above, the law is clear, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the context and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute. See:- Oyeyemi Vs. Commissioner for Local Government of Kwara State (1992) 2 SCNJ 266 At 280; Astra Industry Nigeria Ltd. Vs. NBCI (1998) 3 SCNJ 97 At 115.
To my mind, it is clear from the provision of the Electoral Act stated above, once the conduct of any Official of INEC is mentioned in any Petition, automatically, he must accept to become a Respondent to defend his role in the election. Such an official cannot accept not being a Respondent to a Petition, except with the written consent of the Attorney General of the Federation.
In the instant Appeal, the 1st, 2nd and 3rd Respondents replied the Petition as enjoined by the Electoral Act. How they approached their defence, by admitting certain paragraphs of the Petition which are obvious, is the source of quarrel by the 4th and 5th Respondents. It is their contention that INEC cannot admit those paragraphs, except with the written consent of the Attorney General as provided by the Electoral Act. The Electoral Act did not talk of line of defence; it stops at being Respondents, which INEC was to the Petition.
The Law to my mind has been satisfied. The said admission by INEC in Paragraph 24 of their Reply to the Petition accepting that, the symbol emblem and logo of the 2nd Petitioner were conspicuously missing on the ballot papers used for the House of Assembly Election in Osogbo Local Government Constituency of the 14th April, 2007, is immaterial. Exhibit “3”, the ballot paper used for the election, was tendered and admitted in evidence as well as Exhibit “10”, the result sheet of the Election known as Form EC8E. In Exhibit “3” (the ballot paper), the logo or emblem of the 2nd Petitioner is completely omitted, while in Exhibit “10”, the name of the 1st Petitioner and his party as well as of the 2nd Petitioner are all contained therein with a zero score written against it. Those documents speak for themselves, nothing can be done to vary their contents. See:- Adike Vs. Obiareri (2002) FWLR (pt. 131) 1907. The appearance of the name of the 1st Appellant/Petitioner in Exhibit “10”, (Form EC8E) – the result sheet issued by INEC, as one of the candidates that contested the election for Osogbo Local Government Constituency, is instructive. In the case of Ibrahim Vs. INEC (1999) 8 NWLR (pt. 614), this Court held that, a decision of the Electoral Commission allowing a candidate to contest the election is final and shall not be reviewed by an Election Tribunal or any Court of law. From all that is stated above, it is very clear that the Appellant/1st Petitioner was a victim of unlawful exclusion for the April 14th 2007 election for Osogbo Local Government Constituency to the Osun State House of Assembly.
Let me now turn to the 3rd criteria in the case of Effiong Vs. Ekpeme (Supra J of the election being concluded, the said Exhibit “10”, (Form EC8E)- the result sheet tendered by the Petitioners, has shown that the election was concluded on 14/04/2.007,which fact was admitted by the Respondents. On the 4th criteria of unlawful exclusion, Exhibit “3”, the ballot paper, did not reflect the logo and names of the Petitioners. It is indeed clear that, the Appellants/Petitioners were wrongfully and unlawfully excluded from the election of 14/04/2.007 into the Osun State House of Assembly for Osogbo Local Government Constituency. It is the law that, where unlawful exclusion if proved, the Court is enjoined to nullify the election. See:- Kwapyong V. Daniang (1989) 1 NEPLR 109.
What is left to be said is that, the lower Tribunal had enough materials before it, to have allowed the Petition. Having failed to do so, thus denied the Appellants their rights given under the Constitution of the Federal Republic of Nigeria and the Electoral Act.
In the final analysis, this appeal is allowed. The Judgment of the Governorship and Legislative Houses Election Tribunal, Osun State, in Suit No. HA/EPT/OS/OS/4/2007, Coram Justices: H. Barka, J.J. Majebi, O. Ipaye, A. A. Aderemi and A. O. Ogie, is hereby set aside in its entirety. It is ordered that, the 4th Respondent- Mr. Akintunde Adegboye of Action Congress(AC) must vacate his seat in the Osun State House of Assembly with immediate effect. It is further ordered that, the Independent National Electoral Commission (INEC), Osun State, is to conduct a Fresh election into the Osogbo Local Government Constituency Seat of the Osun State House of Assembly within 60 days. Also, Costs of N30,000.00 (Thirty Thousand Naira) is awarded in favour of the 1st and 2nd Appellants.
Other Citations: (2009)LCN/3451(CA)
