Abdullahi Illiyasu V. Alhaji Sule Lawan Shuwaki & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

The Appellant and first Respondent were among the candidates who contested the seat of the member representing Tudun Wada state constituency in the Kano State House of Assembly in the election held on the 14th day of April, 2007 wherein the Appellant was sponsored by the Peoples’ Democratic Party, and the 1st Respondent, by the All Nigeria Peoples’ Party. At the end of the election, the Appellant was returned and declared as the winner of the election by the 3rd to 5th Respondents who were responsible for the conduct of the elections.

The 1st and 2nd Respondents being dissatisfied with the declaration and return of the Appellant as winner filed a petition No EPT/KNS/HA/08/2007 at the Governorship and Legislative Houses Election Petition Tribunal holden at Kano seeking for the following reliefs:-

(1) A declaration that the election of the 14th April, 2007 into the State House of Assembly in Tudun Wada Constituency was inconclusive.

(2) A declaration that the 3rd Respondent does not have the capacity to declare and or return the 1st Respondent as the winner only the 2nd Respondent can validly do so.

(3) A declaration that the 1st Respondent Abdullahi Iliyasu was not duly elected or returned as the Winner of the election into State House of Assembly representing Tudun Wada in the State Constituency.

(4) A declaration that neither the 2nd Respondent nor the 3rd Respondent has the legal right to declare the 1st Respondent as a winner in the already and lawful (sic) cancelled election.

(5) An order declaring that the return of the 1st Respondent by the 2nd and 3rd Respondents after cancellation on 14th April, 2007 election is null and void.

(6) An order directing the 3rd Respondent to conduct a fresh election in the entire Tudun Wada Local Government Area into the State House of Assembly in order to determine the rightful and legal winner of the election.

(7) And for such further orders or relief as the Tribunal may deem fit to make in the circumstance.

The Appellant as Respondent and other Respondents to the petition in their respective reply denied that the petitioners were entitled to the reliefs sought from the said Tribunal and at the end of trial; judgment was delivered on the 18th day of February, 2008. The Tribunal in its judgment found that the Administrative Secretary of INEC had cancelled the election held on the 14th day of April, 2007 in Tudun Wada Local Government Area, State Constituency into the Kano State House of Assembly, and that the subsequent declaration of the result of the election and return of the Appellant as the winner of the election by the 3rd Respondent on the instruction or directive of the 5th Respondent is null and void for not being in compliance with the provisions of the Electoral Act, 2006. The Tribunal therefore, held that the election of the Appellant was invalid by reason of substantial non – compliance with the provisions of the Electoral Act, 2006 as put forward in the substance of the complaints in the petition. The tribunal then ordered as follows:-

“(1) We declare that the purported election and return of the 1st Respondent, following the inconclusive election that the 2nd, 3rd, and 4th Respondents conducted in Tudun Wada Constituency to the House of Assembly of State on 14th April, 2007, was invalid by reason of substantial non – compliance with the provisions of the Electoral Act, 2006.

(2) The 4th Respondent, independent National Electoral Commission, shall hold a fresh election in the constituency within three months of this judgment.”

Dissatisfied with the judgment and decision of the Tribunal, the Appellant filed Notice of Appeal containing three Grounds of Appeal. The said Notice of Appeal is dated the 3rd day of March, 2008 and filed on 7th March, 2008.

In the brief filed by Felix Jones Osimerha, Esq on behalf of the Appellant, three issues are formulated for the determination of this appeal to wit:-

“(1) Whether the Administrative Secretary of independent National Electoral Commission (INEC) Kano State or any other person other than the Resident Electoral Commissioner of Kano State or the Independent National Electoral Commission’s Chairman, has the power under the Electoral Act, 2006, Constitution of the Federal Republic of Nigeria 1999 or any other Law, to cancel the election held on the 14th of April, 2007 into the House of Assembly of Kano State for Tudun Wada Local Government Area, Constituency, and if the Honourable Governorship and Legislative Houses Election Tribunal holden at Kano rightly held that the Administrative Secretary of Independent National Electoral Commission, Kano State has the power to cancel the election held on the 14th day of April, 2007 into the Kano State House of Assembly for Tudun Wada Local Government Area Constituency.

(2) Whether the Honourable Governorship and Legislative Houses Assembly Election Tribunal holen at Kano was right in holding that the Administrative Secretary of the Independent National Electoral Commission, Kano State had validly cancelled the election for the Tudun Wada Local Government Area Constituency in Kano State House of Assembly, held on the 14th April, 2007, and that the Resident Electoral Commission for Kano State INEC’S subsequent order to the Electoral office to declare the election result was not in compliance with the provisions of the Electoral Act, 2006 and therefore, the election of the Appellant was invalid by reason of substantial non – compliance with the provisions of the Electoral Act, 2006.

(3) Whether the Honourable Governorship and Legislative Houses of Assembly Election Petition Tribunal was not wrong in its application of section 27(5) of the Electoral Act, 2006, in holding that the Tribunal must accept the cancellation of the election by the Administrative Secretary as conclusive because of the 1st Respondent (Appellant)’s failure to cross petition to challenge the exercise of the discretion by the Administrative Secretary to cancel the election.”

The Learned Counsel for the 1st and 2nd Respondents, Salisu I. Fagge Esq, submits three issues for consideration and they are:-

1. Whether the (sic) in view of the violence, intimidation, harassment and total insecurity on the 14th April, 2007 which pervaded the conduct of the election throughout Tudun Wada Local Government Area, the election could be said to be conclusive.
2. Whether the Lower Tribunal was right in nullifying the election for non – compliance with the provision of the Electoral Act, 2006.
3. Whether the cancellation of the election of 14th April, 2007 of the Tudun Wada State Constituency midway and its subsequent reschedulement was not a clear indication that the said election was inconclusive.

The 3rd – 5th Respondents formulated one issue in this appeal. In their joint brief prepared and filed by Suleiman Alkali Esq the following issue was submitted for consideration: –

“Whether the INEC as an umpire which position is unbiased and impartial can place itself in a position where imputation might be made that it supported one candidate in an election petition or appeal arising therefrom.”

The Appellant filed two reply briefs on 20th March, 2009 in respect of the two sets of Respondents’ briefs.

Both reply briefs raise a preliminary objection to the issues formulated by the Respondents which is submitted by the Learned Counsel for the appellants are incompetent not having derived from the grounds of appeal filed. Citing several authorities to back up his submission, the Learned Counsel for the appellant urged this Court to strike out both the issues and arguments in support of the issues as presented by the two sets of respondents. In quite a good number of decided cases both by this Court and the Supreme Court, it has been held that issues formulated for determination of an appeal in a brief of argument must derive from and relate to the grounds of appeal filed. The essence of formulating issues for determination in an appeal is to narrow the relevant points in issue. Therefore, they must arise from and have direct bearing on the grounds of appeal. They must project succinctly and show clearly the substance of the complaint contained in the grounds of appeal.

Where an issue formulated by either the Appellant or Respondent does not arise from the grounds of appeal, an appellate Court will refuse to consider and pronounce on it. See Mobil Producing Nigeria. Unlimited V. Monokpo (2003)18 N.W.L.R. (Pt. 852) 346, C.S.S. Bookshops Ltd. V. R.T.M.C.R.S. (2006) 11 N.W.L.R. (Pt. 992) 530, Chukwu V. Ossai (1994) 4 N.W.L.R. (Pt. 339) 461 Azaatse V. Zegeor (1994) 5 N.W.L.R. (Pt. 342) 76.

I have carefully perused the three issues formulated by the 1st and 2nd Respondents and the lone issue of the 3rd – 5th Respondents vis – a – vis the three grounds of appeal in the Notice of appeal and it does not appear to me that they arise from any of the grounds of appeal filed. For ease of reference, I wish to reproduce the three grounds of appeal (without their particulars) as follows:-

“GROUND ONE

The Honourable Tribunal erred in law in holding that the Administrative Secretary of the Independent National Electoral Commission (INEC) Kano State as the head of the Commission in Kano State was empowered to cancel the election held for Tudun Wada Local Government Area, State Constituency in the Kano State House Assembly on the 14th day of April, 2007.

GROUND TWO

The Honorable Tribunal erred in law in the application of section 27 (5) of the Electoral Act 2006 when it held that by the 1st Respondent’s failure to cross petition to challenge the exercise of the discretion of the Administrative Secretary to cancel the election, as required under section 27 (5) of the Electoral Act, 2006, the Tribunal must accept the cancellation of the election as conclusive.

GROUND THREE

The judgment is against the weight of Evidence.”

Thus, the three issues formulated by the Learned Counsel for the 1st and 2nd Respondents to wit:-

1. Issue of violence, intimidation and Harassment during the election.
2. None compliance with the provisions Of the Electoral Act, 2006.
3. The rescheduling of the election and the lone issue of the 3rd – 5th Respondents which is to the effect, whether INEC should support one candidate against the other, are clearly unrelated to the three grounds of appeal reproduced above. And clearly, these are issues which the learned trial tribunal did not make any findings and decisions. I need to emphasise that an appeal is predicated or anchored on the existence of a decision of the Court appealed against. Where a Court did not make any finding or decided on an issue, no ground of appeal can arise. See Adam III V. Okobo (2008) All F.W.L.R. (Pt. 415) 1732.

It is trite law that where a Respondent did not cross – appeal against a judgment, his issues as formulated must relate to the grounds of appeal filed by the Appellant. In such circumstance, the Respondent will not be allowed to frame any issue or issues for determination outside the grounds of appeal filed by the Appellant. Where such issues are framed in defiance of the grounds of appeal, they are incompetent and ought to be struck out. See Koya V. UBA Ltd (1997) 1 N.W.L.R. (Pt. 481) 251, Uyoette V. Ibiono Ibom Local Government. (2003) F.W.L.R. (Pt. 178) 1126.

It is not compulsory that a respondent must formulate issues separate from that formulated by the Appellant. He can either adopt the issues as formulated by the Appellant based on the grounds of appeal before the Court or find a way to recast them with a slant favourable to his point of view without departing from the complaints raised in the grounds of appeal. See Chief H.O. Ogbodu V. Quality Finance Ltd. (2003) 6 N.W.L.R. (Pt. 815) 147, Jatau V. Ahmed (2003) 4 N.W.L.R. (Pt. 811) 498. The sum total of all I have endeavoured to say so far is that the three issues formulated by the 1st and 2nd Respondents and the lone issue of the 3rd to 5th Respondents do not have any relationship or bearing with the three grounds of appeal filed by the Appellant against the judgment of the Election Petition Tribunal. Accordingly, all the issues formulated by the two set of Respondents are hereby held incompetent, discountenanced and struck out. See Bhojsons Plc. V. Daniel – Kalio (2006) 5 N.W.L.R. (Pt. 973) 330

Now, what happens to the arguments of the Respondents based on the incompetent issues? It is well settled that arguments profferred on an incompetent issue is also incompetent and will be discountenanced by the Court. An incompetent issue cannot sustain any argument as you cannot put something on nothing. See U.A.C. Ltd. V. Macfoy (1961) 3 All E.R. 1160. As it turns out in this appeal, it is clearly seen that the two sets of Respondents have no briefs worthy of consideration having based all their arguments on their incompetent issues only.

At this stage, let me emphasise the need for Counsel appearing for Respondents to always make a reply to arguments of the Appellant based on the issues formulated by the appellant even if the Respondent has formulated his own issues at least as an alternative in case the issues formulated by the Respondent are held to be incompetent as is the case in this appeal. Had the respondents in this appeal averted their minds to the issues of the Appellant and the arguments therein, they would not have found themselves in a situation where they now have no argument in this appeal.

Be that as it may, this appeal shall be determined based on the three issues formulated by the Appellant only. The Learned Counsel for the appellant argued issues 1 and 2 together. I shall also determine both accordingly.

It was the submission of the Learned Counsel for the Appellant that the power of the INEC to conduct, or undertake, organize and supervise the election into the Kano State House of Assembly for Tudun Wada Local Government Area Constituency held on the 14th day of April, 2007 is vested in the Commission’s Kano State Office created by virtue of the 1999 Constitution and section 6 (1) of the Electoral Act, 2006 and headed by the Resident Electoral Commissioner. He further submits that the Resident Electoral Commissioner of Kano State is the only authority or person whom the powers as provided in part I (f) (15) of the third schedule to the Constitution of the Federal Republic of Nigeria 1999 are delegated to by virtue of part I (f) 15 (h) of the said Constitution.

Furthermore, it was contended that since the Administrative Secretary was not an Electoral Official and did not take part in the conduct of the elections, as he testified under cross examination that he was not in Tudun Wada during the elections, he had no power whatsoever to cancel the elections in the night of 14th April, 2007. That it was the Electoral Officer or Resident Electoral Commissioner who had power to cancel the election. He contends further that the Administrative Secretary was not the Electoral Officer I Returning Officer or Presiding Officer or Collation Officer during the election.

Finally, he urged this Court to reverse the decision of the Lower Tribunal which relied on the evidence of the Administrative Secretary that any officer of INEC can cancel the election and that the directive given by the Resident Electoral Commissioner was a countermand of the unlawful cancellation carried out by the Administrative Secretary without any instruction or directive of the Resident Electoral Commissioner.

As already observed, the two set of respondents have no reply to this argument of the Appellant as their respective arguments were based on issues formulated by them which issues have been held to be incompetent. This lack of alternative argument does not however mean that the appeal must succeed just like that. This Court still has the duty of determining the correct legal position bearing in mind the provisions of the relevant laws in this regard.

The Independent National Electoral Commission is established for this Country by section 153 (1) (f) of the Constitution of the Federal Republic of Nigeria, 1999 and by part I (f) 15 (a) thereof, the Commission is empowered to –

“Organise, undertake, and supervise all elections to the offices of the President and vice – President, the Governor and Deputy Governor of a State, and to the Membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation.”

Also by virtue of the provisions in part I (f) (15) (h) of the same schedule to the Constitution of the Federal Republic of Nigeria, 1999, the Commission has power to delegate any of its functions or powers to any Resident Electoral Commissioner of any State. Part I (f) (14) (2) of the 3rd schedule to the Constitution establishes the office of the Resident Electoral Commissioner.

In every election, there is usually an Electoral/Returning officer whose duty involves the general conduct of the election including the announcement and declaration of results. And in a State Constituency as in the instant case, section 28 (2) (d) of the Electoral Act, 2006 empowers the Returning officer at the State Constituency collation centre to announce results. It seems to me that in circumstance such as the one at hand, the Returning officer would report to the Resident Electoral Commissioner of the State concerned. I hold the view that an Administrative Secretary and other support staff in his office facilitate the holding of an election by making sure that materials and other logistics are made available. But when it comes to the conduct of an election, I think the person directly responsible is the Electoral Officer / Returning Officer in the election who should have the final say in consultation with the Resident Electoral Commissioner whether there is need to postpone an election or not. Under section 27 (1) of the Electoral Act, 2006, an election may be postponed. It States:-

“27 (1) where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election.”

To postpone an election means to put it off to a later date. An event which has not been held can be postponed, but the same cannot be said of an event which has been held and concluded. I think the Electoral Act, 2006 permits the postponement of an election which is yet to take place in circumstances provided for in section 27 (1) of the Act. It does not provide for the cancellation of an already held election. The evidence of the Administrative Secretary who purportedly cancelled the election is on page 219 of the record of proceedings. It States:-

“STATEMENT OF WITNESS ON OATH

I, Alhaji Isiaku Ghali, adult, Male, Muslim, Nigerian Citizen of INEC Headquarters office, Kano State do hereby make Oath and state as follows:-

1. That I am the administrative secretary of the INEC Headquarters office in Kano State.
2. That the elections into State House of Assembly and Governorship were held on the 14th day of April, 2007.
3. That I was in my office on the 14th April, 2007 when Kabiru Abba Darki who is the electoral officer in Tudun Wada Local Government House of Assembly election came to my office to give situation report of what happened on that day.
4. That other interest groups and people in Kano State also came to me to stop the election in Tudun Wada as a result of what they claimed was the situation in Tudun Wada area.
5. That I tried to reach the resident electoral Commissioner to brief him of the situation but I could not reach him, as he was very busy with the election.
6. That I ordered the cancellation of the election result based on the information I received in paragraphs 3 and 4 above.
7. That I later discovered that I was misinformed to cancel the election as the true situation that transpired during the House of Assembly election in Tudun Wada does not warrant an outright cancellation.
8. That Abdullahi Iliyasu has since been declared the winner and I believed the said declaration is the true reflection of what transpired at the election.
9. That I make this solemn declaration in good faith believing same to be true and in accordance with the Oath Act, 1990.

Signed

Deponent”

Now, to start with, the Administrative Secretary did not say that he postponed the election but stated in paragraph 6 of his statement that he “ordered the cancellation of the election result” based on the information he received from the Electoral Officer. Even assuming that an Administrative Secretary has the power to order the postponement of an election, can he cancel an election result? The answer definitely is in the negative. It is noteworthy that the elections was not cancelled before or during the voting exercise but after some results were declared and collation was In progress. He told the Court on page 506 of the record under cross examination that he received the information which led to the cancellation of the election result at “between 11pm and 12 midnight,” and that the election was supposed to have closed at 3pm of the said date. By 12 midnight of the election date, most results were already handy. This is what the INEC Electoral Officer for Tudun Wada Local Government Area said in paragraphs 5 and 6 of his statement on page 217 of the record of appeal:-

“5. That I collated results brought to me from the wards in Tudun Wada Local Government Area by the various collation centre offices in the wards.

6. That at the commencement of the collation there was not enough security at the collation centre to guarantee our safety, which made me to leave the centre with my assistant”

At the stage when results were known and final collation had commenced, it was not proper for any body to cancel the result of the election except as provided for in section 69 (c) of the Electoral Act 2006. That section provides that:-

“The decision of the Returning Officer on any question arising or relating to –

(c) Declaration of scores and the return of a candidate shall be final subject to review by a tribunal or court in an election petition proceedings under this Act.”

I have not seen where part of the duties of an Administrative Secretary is to cancel election. Where results in an election have been known, it is only an Election Tribunal or the Court that has power to cancel an election. See Enemuo V. Duru (2004) 9 N.W.L.R. (Pt. 877) 75. and the unreported case of Senator David Mark V. Alhaji Usman D.M. Abubakar & Anor in Appeal No CA/J/EP/SN/114/2008 delivered on 15th July, 2008 at page 126. There is no evidence that the Administrative Secretary was the Electoral/Returning Officer of the Tudun Wada Local Government Area, he was not a Presiding officer or any of the electoral officers involved in the election of 14th April, 2007. There is also no evidence that the Administrative Secretary acted on the authority or instruction of the Resident Electoral Commissioner for Kano State as the Administrative Secretary stated that he could not reach him because he was busy with election duties.

In the circumstance therefore, the Administrative Secretary lacked the capacity to cancel the election in the manner which he did. The cancellation as contained in Exhibit M was ultra vires his office and the countermand by the Resident Electoral Commissioner was sufficient to destroy and cancel the purport of Exhibit M.

The Court below held on page 662 – 663 of the Record of Appeal that –

“The DW1, who has described himself as the Administrative Secretary and head of the Commission for Kano State and under whose jurisdiction the constituency in question falls, agree that the Commission acting through any of its relevant officers could cancel any election before it is concluded.”

The above conclusion of the court below must be read with caution because each “relevant officer” has his own schedule of duty. Yes the Commission can act through any of its relevant officers to perform any act but such officer must be duly authorized to do so. Where an INEC official acts outside the capacity or ambit of his office or authority, such act shall be declared null and void by the Court. To hold otherwise will open the flood gate for any INEC official who is not satisfied with the conduct of an election to order a cancellation. This, in my well considered opinion will be a sad precedent in the conduct of election in this Country and I do not think this is the intention of the Electoral Act 2006.

As a result, this issue is resolved in favour of the Appellant.

The last issue has to do with the interpretation given to section 27 (5) of the Electoral Act, 2006 by the Lower Tribunal. Commenting on the decision of the Resident Electoral Commissioner to reverse the order of the Administrative Secretary canceling the election, the Lower

Tribunal said on page 663 of the record as follows:-

“The electoral body is not entitled to unilaterally resind any decision it has taken on the issue. See section 27 (5) of the Act, wherein a candidate who wishes to challenge the decision of the electoral body is enjoyed to do so in a Court of law or Tribunal.”

The Court went further to hold on the same page 663 that:-

“There is no cross – petition before us to challenge the exercise of discretion to cancel the election and so we must accept the cancellation as conclusive on the point.”

It is the contention of the Learned Counsel for the Appellant that section 27 (5) of the Electoral Act, 2006 enjoins the candidate not satisfied with the declaration of the election result and return of a winner of the election pursuant to section 27 (4) of the Act, to challenge the decision of the Commission to declare the result of the election when same has been postponed in accordance with section 27 (3) of the Act.I agree. Section 27 (3) of the Act refers to a situation where not all the areas are affected by the postponement. Then sub section (4) states that the Commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made. Where any of the candidates is not satisfied with the said return, sub – section (5) empowers such candidate to challenge the said return in a Court or Tribunal. The situation in the instant case is quite different from the picture painted in section 27 (5) of the Act. The Appellant who has been declared the winner had no business of invoking section 27 (5) of the Act to challenge the unlawful cancellation of the election which had been effectively countermanded by the Resident Electoral Commissioner who directed the Electoral / Returning officer to complete collation and announce the result. Section 27 (5) of the Electoral Act, 2006, provides for a candidate or contestant at an election, the right to challenge a declaration or return of a candidate as the winner of the election in spite of the postponement of the election in accordance with sections 27 (1), (2), (3) and (4) of the Act. The issue of cross – petition does not even arise in this case as the appellant had no reason to file any petition. With due respect, I hold that the Lower Tribunal wrongly interpreted and applied section 27 (5) of the Electoral Act, 2006 by holding that the Appellant, having not challenged the purported cancellation, the cancellation is conclusive. This issue, again, is resolved in favour of the appellant.

In sum, I hold that this appeal has merit and ought to be allowed. I hereby allow it and set aside the judgment, decision and orders of the Governorship and Legislative Houses Election Petition Tribunal holden at Kano in petition No EPT/KNS/HA/08/07 delivered on 18th February, 2008.

I make no order as to costs.

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Other Citations: (2009)LCN/3418(CA)