Action Congress & Anor. V. Dr. Anthony Manzo & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
ALFFRED P. EYEWUMI AWALA, J.C.A,
This appeal is predicated on the general election nation wide held on 21/4/2007 for seats at the senate including the one meant for Taraba North Senatorial District. The 2nd Appellant sponsored the 1st Appellant for the election. The 1st Respondent equally contested the election on the platform of the People Democratic Party (PDP), not jointed as a party in this appeal.
At the end of the collation of election results, the 1st Respondent Dr Anthony Manzo was returned elected with a total of 225, 981 votes whilst the 2nd Appellant came third with a total of 21,466 votes. Hon AIMashi Alhassan Al-Gaddas of the All Nigerian Peoples Party (ANPP) placed 2nd with a total of 30,744 votes. Aggrieved by the election result the Appellants filed a 77 paragraphed petition No. NAEPT/T6/S/20/07 dated 21/5/07 against the 1st Respondent and 27 other Respondents at the National Assembly/Governorship and Legislative House Election Tribunal for Taraba State holden at Jalingo (herein after called the lower tribunal).
The reliefs claimed by the Petitioners/Appellants are as follows:-
“WHEREOF pray that it be determined that Dr Manzo George Anthony the 1st Respondent was not duly elected or returned as senator elect for Taraba North Senatorial District during-the elections of 21st April 2007 herein. Your petitioners claim the following additional reliefs:-
i) An order of Court setting aside the unlawful and wrongful return of the 1st Respondent as declared by the 4th Respondent in the elections of 21st April, 2007.
ii) An order voiding the purported elections and return of votes declared for all the candidates in the election of 21st April, 2007.
iii) An order of the tribunal directing the 2nd to 10th Respondent to conduct fresh elections to fill the Senatorial seat for Taraba North Senatorial District within a period fixed by the tribunal.
iv) Any further order (s).”
The lower tribunal after a considered judgment delivered on 16/11/07 dismissed the petition on the ground that a good number of the paragraphs of the petition, precisely paragraphs 18, 25, 27, 28, 29, 30, 32, 33, 34, 35, 36, 38, 39, 41, 45, 46, 47, 48, 50, 54, 55, 56, 57, 59, 61, 62, 63, 65, 66, 67, 68, 70, and 72 were offensive following the objection raised by the 1st Respondent in his Reply to the petition, that the said paragraphs pleaded criminal conducts by the Presiding Officers at the polling units without joining them as Respondents in the petition. And for failure to prove late or non-arrival of polling materials in 16 out of the near 40 polling stations in the senatorial district.
Dissatisfied with the said judgment the Appellants filled a Notice of Appeal formulating five grounds. They distilled two issues for determination in their Appellants’ Brief of Argument deemed filled on 31/3/08 as follows:-
- “Whether the lower tribunal was right to have struck out various and substantial paragraphs of the petitioners’ petition on the belated objection of the 1st Respondent on the ground that presiding officers in the affected units were not joined (Ground 1).
- Whether the lower court was right in refusing to nullify the election of the 1st Respondent having regard to the state of the pleadings in respect of allegations of the late or non-arrival of electoral materials and the evidence led in that regards (Grounds 2, 3 and 5).”
Note that the 4th ground of Appeal was abandoned by the Appellants as they not distilled any issue from it.
On his part, the 1st Respondent adopted the two issues canvassed by the appellants with slight modification in his Brief of Argument filed within time on 31/3/08. They are as follows:-
- Whether the lower tribunal was right to have struck out various and substantial paragraphs of the petitioners’ petition on the ground that the presiding officers in the affected units were not joined as respondents.
- Whether on the settled state of the pleadings and evidence led at the trial, the lower tribunal was right in its finding that sufficient evidence was not adduced to sustain the petition in respect of late arrival of electoral materials.
Similarly, the 2nd to 28th Respondents also couched two issues for determination of this appeal in their joint Brief of Argument filed within time on 31/3/08, to wit;-
- Whether the lower Court was right in striking out paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 25, 27, 28, 29, 30, 32 33, 34, 35, 36, 38, 41, 45,. 46, 47, 48, 49, 50, 54, 55, 56, 57, 59, 61, 62, 63, 65, 66, 67, 68, 69, 70, 71, and 72 of the petition for non-joinder of the electoral officials in view of the nature of the allegations made therein notwithstanding the provision in Section 144 (2) of the Electoral Act 2006 (Ground 1).
- Whether the lower court was right in refusing to nullify the election of the 1st Respondent having regard to the state of the pleadings in respect of allegations of the late or non-arrival of electoral materials and the evidence led in that regards (Ground 2, 3 and 5).
The above two issues each raised by the learned counsel for the parties are similar, but I prefer to resolve this appeal with the ones formulated by the 1st Respondent which is a modified version of the Appellants’ two issues (supra).
I take the arguments of learned counsel for the parties beginning with the Appellants’ counsel, O. Tyoakaa Esq. of Tayo Jegede & Co. who settled the Appellants’ Brief of Argument.
Issues one
“Whether the lower tribunal was right to have struck out various and substantial paragraphs of the petition on the ground that Presiding Officers in the affected units were not joined as Respondent.”
On this issue Appellants’ learned counsel commenced his argument by posing a question whether the non-delivery or late arrival of electoral materials to the polling units are not sufficient to vitiate the election in view of the Appellants’ concession of their inability to prove the criminal allegations in the petition against the presiding officers at the polling units not joined as Respondents. He answered the question himself by opining that the concession that he is abandoning the criminal aspect of the petition make the non-joiner of the presiding officers a non-issue. This means that the allegations of malpractices, irregularities, falsification of votes and other misconducts perpetuated at the polling stations as pleaded on longer warrants the wholesale striking out of the numerous paragraphs of the petition for not joining the Presiding Officers in view of Sections 44, 45 and 77 of the Electoral Act, 2006 which places the responsibility for the appropriate timing for voting on INEC. The live issue, counsel argued, is now non or late arrival at the polling units of election materials. for an apt understanding of this judgment it is pertinent I reproduce Sections.44, 45, and 77 of the Electoral Act, 2006 for ease of reference as follows:-
“44(1) The Commission shall provide suitable boxes for the conduct of elections.
(2) The forms to be used for the conduct of the elections to the offices mentioned in Section 47 of this Act and election petitions arising there from shall be determined by the commission.
(3) The Polling Agents shall be present at the distribution of the election materials from the office to the booths.
- (1) the commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the political party of the candidate and such other information as it may require.
(2) The ballot papers shall be bound in booklet and numbered serially with differentiating colours for each office being contested.
- The forms to be used for the conduct of election to the officers mentioned in Section in Section 41 of the Act and election petition arising there from shall be determined by the commission.”
Counsel argued that in determining therefore the rightful respondents to be joined in the petition a holistic perusal of the petition must be undertaken to determine the nature of the complaints. He cites Ngige V Obi 2006 14 NWLR (Pt. 999) 1 at 115 in support.
That in consequence given the concession for the Appellants as aforesaid, the live issue (supra) in the petition is only the non or late arrival of electoral materials at the polling units. He submitted that since they have abandoned the criminal aspect of their pleadings in the petition and since INEC the Resident Electoral Commissioners and the Electoral Officers for Zing, Ardo-Kola, Yorra, Lau, Karim Lamido and Jalingo Local Government Areas are joined in the petition the Appellants are covered.
He cites Obasanjo V Yusuf (2004) 9 NWLR (Pt. 877) 144 at 185 in support where Kutigi, JSC (now the CJN) held that in the determination of the narrow issue of complaints of the conduct of electoral officers of or presiding officers or returning officers such persons not joined should not as a matter of cause trigger of total a striking out of paragraph (s) of the petition as is done in the instant case.
Counsel therefore submitted that the lower tribunal was in error to have struck out the majority of the paragraphs of their petition for non-joinder of the presiding officers and that that decision no doubt occasioned a grave miscarriage of justice.
Besides, counsel argued, that the issues of striking out ought to have been taken at the pre-trial session not at the hearing of the petition. He refers to paragraphs 6(1) and (2) (sc) 3(1) and (2) of the Election Tribunal and Court Practice Direction (No. 2) 2007. That since the issues of non-joined was not raised and determined before the trial the lower tribunal was incompetent or lacked jurisdiction to have struck out those paragraphs.
I deal with the issues of jurisdiction raised by the Appellants’ counsel above, here and now, because issues of jurisdiction is the live wire, and fundamental to the adjudication of a suit. If raised, it must be treated at the earliest opportunity before proceeding with the determination of the suit as lack of jurisdiction is an incurable vice. The proceeding and the judgment delivered by such Court or tribunal which ‘lacks jurisdiction are rendered a nullity.
See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116; Abdulsalam v. Salawu (2002) 13 NWLR (Pt. 670) 722; Obayinwana v. Ede (1998) 1 NWLR (Pt. 535) 670 and Ogbu v. Orum (1981) 4 SSC1.
The question is where does a Court or tribunal derive its jurisdiction or assume one? I say is from the pleadings and reliefs in the statement of claim or petition as, in the instant case. The petitioners pleaded those offensive paragraphs objected to by is Respondent which were struck out. To argue that the issues raised in those paragraphs are pre-trial matters that should have been settled at the pre-trial session is fallacious. The law is Ubijus ibi remedium “Where there is right there is remedy” in a Court of law whether or not provided for in the constitution or the enabling law, in this case the Electoral Act, 2006.
It is now trite the moment the claim and reliefs sought come within the jurisdiction of the Court or tribunal as portrayed by the facts of this petition (supra) the tribunal has jurisdiction to entertain same. I so hold.
See Babale V Abdulkadir (1993) 3 NWLR (Pt. 281) 252; IRADE Bank Plc V Benilux (Nig) (2003) 9 NWLR (Pt. 825) 416 and A.P.C. Ltd V NDIC (2006) 15 NWLR (Pt. 1002) 404.
What is the response of the 1st Respondents’ counsel, supported by the 2nd – 28th Respondents counsels’ in their respective arguments? I appraise his argument first before resolving issue one.
He (the 1st Respondents counsel) argued in a nutshell as follows:-
Firstly that the appellants’ counsels concession was in his written address at the lower tribunal. That the allegations made in those paragraphs of the petition struck out being criminal in nature which standard of proof required is beyond reasonable doubt is beyond them. That they concede they can not discharge the onus and therefore they are abandoning them, does not answer the issues of the concession.
Secondly to say that the only live issue left for determination by the lower tribunal was the allegation of late or non-arrival of electoral materials missed the point. And therefore the argument by the Appellants’ learned counsel that since the issue of late or non-arrival of electoral materials were directed at INEC and not at the other officials the lower tribunal ought not to have struck out the those paragraphs of the petition is misunderstanding of the law of pleading, counsel argued.
Thirdly that the concession was made at the address stage at the lower tribunal. Arguing that in view of the criminal nature of the allegations made in those paragraphs which the Appellants’ counsel said they cannot discharge beyond reasonable doubt and that those paragraphs are therefore no longer live issues they should have pleaded same. Counsel submitted further that it is not what the counsel conceded to in his address that is determinant factor to decide the fate of the offending paragraphs if not pleaded as they were not in the instant case.
Concluding he submitted that an address can not take the place of pleadings. He argued that fate of those offensive paragraphs had to be determined by the nature of the allegation as pleaded and that Section 144(2) and paragraphs 47 (10) of the 1st schedule to the Electoral Act 2006, notwithstanding, the issue of the competency or validity of those paragraphs, is an issue of law and not be concede to in the address, counsel argued.
Supporting the 1st Respondent’s counsel submissions above the 2nd to 28th Respondents’ counsel argued that since the said paragraphs went forward to make sundry allegations which in law are regarded as being directed against the Presiding Officers and as those Officers were not joined as Respondents they are liable to be struck out and were rightly struck out by the lower tribunal because otherwise it will amount to the breach of fair hearing (See S.36 of the 1999 Constitution).
He cited Nwoke v. Ebeogu (1999) 6 NWLR (pt. 606) 247; Kallamu v. Gurin (2005) all FWLR (Pt. 241) 325, Biyu v. Ibrahim (2006) 8 NWLR (Pt. 981) 1, Egolum v. Obasanjo & ors (1999) 7 NWLR (Pt. 611) 355 at page 397 where, Belgore JSC (as he then was), declared such paragraph in a petition to be incompetent and should be struck out.
Before I resolve issue one” I must expantiate and explain the nature of an election petition. The procedure in an election petition is largely governed by law made specially to regulate the proceedings. The proceedings are special for which special provisions are made in the constitution and the relevant Electoral Act (now Electoral Act, 2006). It is such in certain circumstances the slight test defaulting in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. An election petition can be regarded as proceedings sui generis not seen as a civil proceeding in the ordinary sense or as a criminal proceeding parties and the Court are bound by the pleadings (the petition and Reply). The Appellants pleaded in all the numerous paragraphs the alleged offending presiding officers must be joined as respondents otherwise the tribunal will be breach of fair hearing as earlier stated.
See also Buhari V Yusuf (2003) 14 NWLR (Pt. 841); Abubakar V INEC (2004) NWLR (Pt. 854) 2007 and Samamo V Anka (2000) 1 NWLR (Pt. 640.) 283.
I hold the view that definitely the allegations of malpractice and irregularities made in those offensive paragraphs are criminal in nature. Those allegations must be proved beyond reasonable doubt to enable the Petitioner/Appellant or Respondent, as case may be to be entitled to judgment. It is no answer for the Petitioners/Appellants to say as they did in this case that they can not prove the criminal allegations beyond reasonable doubt as they did in their Address letting the offensive paragraphs to remain in the petition. The only logical thing to do is what the lower tribunal did, by striking out those offensive paragraphs not proved.
See Nwobodo v. Onoh (1984) 7 SCNLR 1; Omoboriowo v. Ajasin (1984) 1 SCNLR 108, Terab V Lawan (1992) 3 NWLR (Pt. 231) 569.
In the circumstances, I resolve issue one in favour of the 1st Respondent.
Now I consider issues two.
“Whether on the settled state of the pleadings and the evidence led at the trial, the lower tribunal was right in its finding that sufficient evidence was not adduced to sustain the petition in respect of the late or non-arrival of electoral materials.”
On this issue Appellant’s counsel submitted that the petitioners were specific in their pleadings and their written statement on oath that the time electoral materials arrived at the voting units, cut across the entire Taraba North senatorial District were mostly between 5pm to 7pm and in few cases between 12 noon and 3pm.
He argued further that the 1st Respondent did not deny the above averment of fact. Appellants counsel then submitted that there is no onus placed on the petitioners to proffer evidence on the averment as no issue was joined on it. Those Electoral materials arrived late as aforesaid, and that most of them found their way to the houses of the agents of the 1st Respondent who were acting on the 1st Respondents instruction was not challenged. He cites Sabru Motors Ltd. v. Rajab Enterprises Ltd. (2002) 7 NWLR (Pt.766) 243, in support.
Furthering his submission, Appellants’ counsel argued that the 1st Respondent clearly and unequivocally admitted that in respect of the entire Taraba North Federal constituency aforesaid voting did not take place at 8.am due to the late arrival of election materials. Therefore counsel opined that the 1st Respondent has the burden to show or establish the time voting eventually commented. He argued that the onus was not discharged nor does it shift. He refers to Section 136 and 137 of the Evidence Act.
That as for the election in Zing L.G.A especially in Yakoko and Babong wards, the petitioners/ Appellants gave evidence of the arrival time of electoral materials to be 5pm and 4pm respectively (See paragraph 8 and 9 at pages 115 and 116 of the record). Here the reply of the 1st Respondent was evasive, counsel argued. He did not plead the contrary in paragraphs 12 to 19 of the Reply to the petition (see page 116 of the record).
The Appellants’ counsel therefore submitted that since the 1st Respondent admitted that materials did not arrive at 8 am on the Election Day and they nevertheless did arrive within time is to beg the question to say the least. That was an evasive denial of the pointed allegation by the petitioners. That in law, this is not a sufficient traverse, counsel opined. Appellants’ counsel then referred to Order 26 Rule 14(i) and (2) of the Federal High Court Rules 2000 (made applicable to election matters by paragraph 50 of the 1st schedule to the Electoral Act, 2006.)
Counsel argued further that the joint reply by the 2nd to 28th Respondents’ counsel did not fair better either. He therefore submitted that the 1st Respondent had woefully failed to meet the averments or the petition frontally.
Furthering his argument Appellant’s counsel submitted that four letters of protest on .the conduct of the election were written by the petitioners/Appellants to INEC which are Exhibit “A”, “B”, “C” and “D” in relation to lateness of time of arrival of voting materials. They were admitted in evidence by consent of all the parties’ counsel from the bar. Expanciating on the Exhibits, counsel submitted that Exhibit “A” is a protest that materials came in at about 6:30pm at Zing L.G.A. Exhibit “B” that electoral materials got to Yarro L.G.A headquarters at 3 pm.
The record held that strict adherence to time of election is inconceivable. Counsel then submitted that the pleadings and evidence and the contrary findings of the lower tribunal that strict adherence to time of election is inconceivable clearly negates the notion of an election. That the purported election outside the prescribed period of election as per the said Manuel can not qualify as an election. The non-delivery’ or late arrival of Electoral materials permeated the entire Taraba North senatorial District and renders the election void. they urge us to resolve issue two in favour of the Appellants.
How did the 1st Respondent respond to the Appellants’ arguments vis-a-vis two? Summarily they are as follows:
That the grouse of the Appellants really is that the 2nd Respondent made fictitious and false returns and not the late or non-arrival of voting material at the polling centers that is the main claim. That claim is a rouse (See paragraphs 13- 17 of their petition in pages 5 – 15 of the record).
Moreover the Appellants’ contention at the lower tribunal that they made specific allegations as to the time electoral materials arrival at the .polling units in their pleadings and that same were not effectively traversed by the 1st Respondent is fallacious.
It is note worthy, argued the 1st Respondent counsel, that the following principles of law are now trite.
i) That pleadings in petitions like those in civil matters are meant to inform the other side the nature of case he is to meet in order to be prepared for same as distinguished from the mode in which the case is to be proved.
ii) To prevent the other side from being taken by surprise and to save unnecessary expenses.
See Ebu V Obun (2004) 14 NWLR (pt. 892) 76. Ladoja v. INEC (2001) ALL FWLR (pt. 377) Ibori v. Igli (2004) 6 NWLR (Pt. 808) 1; Sidi Ali v. Nab Takwa (2004) ALL FWLR (Pt. 202) 1903; Uwanah v. Ejehne (1962) 1 SCNLR157.
The law is trite that this Court will not interfere with the findings of fact by the lower tribunal except where it is perverse. The issue of late or non-arrival of voting material alleged by the Appellants as petitioners which the lower tribunal found was not proved, is not perverse.
See Mogaji v. Odofin (1978) 4 SC 91; Wluchem v. Gudi (1981) 5 SC Ebba v. Ogodo (1984) 1 SC372 Ezekwesili v. Agba
Punonwu (2003) 9 NWLR (Pt. 825) 337.
The lower tribunal also found as a fact that the late or non-arrival of voting material occurred in only 16 wards out of the 40 wards in the North senatorial district of Taraba State and that even if all the votes cast in favour of the 1st Respondent in the 16 wards are awarded to the Appellants, arithmetical the 1st Respondent will still have won the election. 73,978 votes were scored by the 1st Respondent in the 16 controversial wars if awarded to the Appellants the result would be as follows: – 1st respondent would now have 151,803 votes whilst 2nd Appellant will have 95,444 votes. This means that the addition and subtraction will not affect the result of the election won by the 1st Respondent. In other word, the results in those 16 controversial wards do not substantially affect the results of the election won by the 1st Respondent.
In the circumstances, I resolve issue two in favour of the 1st Respondent.
As I mentioned earlier in this judgment the non-joinder of PDP as a Respondent in the petition by the Appellants is not an issue in this Appeal. But I will cease this opportunity to say Independent Candidatecy is not allowed in the 1999 Constitution neither is there room for it in the Electoral Act, 2006.
See the recent case of Amaechi v. INEC (2008) 5 NWLR 2777. Per Oguntade JSC. See also Section 221 of the 1999 Constitution, which reads: –
“No association, other than a political party, shall canvass for votes for a candidate at any election or contribute to the founds of any political party or to the election expenses of any candidate at an election.”
It follows therefore from Section 221 above it is the political party that sponsors a candidate that wins or loses an election not the candidate sponsored. The Petitioners/Appellants should have join PDP as either 1st or 2nd Respondent. The 1st Respondent is not the main and only Respondent as seen by the Appellants. Be it that as it may, since both issues (one and two) are resolved in favour of the 1st Respondent it means this appeal lacks merit. It is dismissed.
There shall be no order I as to costs.
Other Citations: (2008)LCN/2839(CA)
