Barrister Paul Ubom & Anor V. Nseyen Anderson Anaka (1999)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This is an appeal against a decision of the Local Government Election Tribunal, Akwa Ibom State holden at Uyo in petition No. LGET/AK/5/98 delivered on 13th February, 1999, wherein they allowed the petition of the petitioner (now respondent) and upturned the election of the then 15th respondent (but now the 1st appellant) with no order as to costs.
At the Local Government chairmanship election held on 5th December, 1998, the appellant herein was a chairmanship candidate on the platform of the Peoples Democratic Party (P.D.P) while the respondent herein was also a candidate under the platform of the All Peoples Party (A.P.P). At the end of the exercise the appellant emerged victorious with a total vote of 21,520 and was duly declared and returned elected as the Chairman of Abak Local Government Council. His opponent of APP (i.e. the respondent herein) scored 20,619 votes and so lost the election with a narrow margin. Being aggrieved with the result of the said election, the respondent filed an election petition before the tribunal at Uyo, complaining that the election was “characterised by various forms or electoral malpractices: details of which were given in paragraph 4 (a)-(g) of the petition. The largest single complaint made in the petition was that in at least three of the voting centres no elections were held because thugs invaded the place and made away with the voting materials. In some cases both the presiding officer and the police were wounded. Yet in these places huge votes were recorded in spite or the fracas. In some cases huge votes were recorded in favour of the PDP candidate, while in others they were recorded in favour of APP candidate. Particular mention was made of Abak Urban Ward 4 at Ikot Ekang polling unit, where the APP scored 900 votes to nil votes for the PDP. But these votes were ignored and omitted from the collated result. Similarly in Otoro Ward 2, where there was no election votes were nevertheless contrived and recorded in the form showing APP zero votes, PDP 568 votes. Because of such electoral malpractices the petitioner prayed that it be determined that the 1st respondent was not duly elected by a majority of lawful and valid votes cast at the election, and that the petitioner won the election aforesaid having scored a majority of the lawful and valid votes cast at the election, and further had 25% of the votes cast in at least 66% of the wards in Abak Local Government Area and to have been returned.
In response to the above, the present 1st appellant as 1st respondent filed a reply in which he denied all the acts of electoral malpractices alleged to have taken place, but averred that the said election was actually conducted in substantial conformity with the electoral laws. He then answered seriatim all the alleged acts of malpractices that were alleged in paragraph 4(a) – (g) of the petitioner’s petition. First as regards the alleged over-voting at Otoro Ward III where it was alleged, that a total or 5,262 voted instead of 5,250 alleged to have been registered, he averred that the correct number of registered voters was 5,750, while the total number of votes cast was 5,262. The voters register in the said Otoro Ward III was pleaded in support. As regards the voting at Ikot Ekang where petitioner had averred that he scored 900 to zero in spite of fracas at the place, the appellant as 1st respondent averred that truly and indeed, there was no election as the section was aborted at Ikot Ekang polling station in Abak Urban IV as all the election materials sent to the polling station were said to have been lost in a fracas. The presiding office could not conduct an election there, and so no result was sent from there. That state of affairs was authenticated by the petitioner’s own agent at the ward collation centre who rendered a nil return in his Form EC8B. In conclusion the 1st respondent attached a table showing the votes scored by each of the candidates at each of the eleven wards at Abak; and how the total votes of 20,619 for petitioner (A.P.P) and 21,520 for the 1st respondent (P.D.P) was arrived at. They finally urged the tribunal to dismiss the petition.
On its part, the 2nd respondent (Independent National Electoral Commission) also filed its reply in which it denied all the allegations of electoral malpractices made against its officials by the petitioner. It denied that there was “reversal” of any votes, and added that:-
‘The returning of officer or any other official of the second respondent did not add any votes to PDP nor did they falsify the result of the election.”
In conclusion they stated that there were no illegal votes added or valid votes subtracted from the total number of votes cast in the election for any of the candidates.” They therefore urged the tribunal to dismiss the petition and confirm the results as announced by them.
At the tribunal seven witnesses testified for the petitioner while five testified for the defence. At the end of evidence the learned counsel for the 1st and 2nd respondents as well as for the petitioner sent in their written addresses to the tribunal.
At the end of the whole exercise the tribunal came out with a 40 – paged judgment in which it held that the oral evidence of the petitioner before the tribunal and the written address of the learned counsel for the petitioner was not challenged by either the 1st or 2nd respondents. It therefore allowed the petition and declared the petitioner to be the winner of the Abak chairmanship election of 5th December, 1998.
The 1st respondent being dissatisfied with the above judgment has now appealed to this court on four grounds of appeal from which the following four issues for determination have been formulated.
(1) Whether the finding of fact and conclusions of the hon. Tribunal accord with the evidence tendered or are consistent with the weight which ought to be attached to the respective evidence of the petitioner and the respondents.
(2) Whether on the voluntary admission of the petitioner, now respondent the tribunal did not err when it failed to deduct from the petitioner/respondent’s scores the total votes of 2108 (see pages 5 and page 36 of the record)
(3) Whether with the combined effect of Exhibits 2A, 3, 3A and 4 the tribunal was legally justified to upturn the election of the appellant and to declare the respondent the winner of the election.
(4) As the allegation of falsification and/or malpractices was against the presiding officers or returning officers or electoral officers or other officials of INEC whether it was competent for the tribunal to receive evidence of such falsification etc. when the officers had not between joined as respondents in the petition.
The 1st respondent will hereinafter in this judgment be referred to as the appellant, while the petitioner will henceforth be referred to as the respondent. As for the 2nd appellant, although he has filed no brief, but since he was joined as the 2nd respondent at the tribunal, and was one of the statutory respondents, whose presence was necessary to give it legal validity, he will be allowed to remain and be referred to as the 2nd appellant.
For the petitioner who will hereinafter be referred to as the respondent, he adopted the four issues formulated for the appellants, and did not formulate any separate issue of his own.
I have carefully considered all the issues formulated above, and consider the 4th and last issue to be the most important and crucial, in that if it succeeds, the entire proceedings at the election tribunal will be declared a nullity and it will become unnecessary to consider any of the other issues. I shall therefore proceed to consider the 4th and last issue as follows:
Re Issue No.4
Whether the presiding officers, returning officers or electoral officers or other officials of INEC ought to have been joined as respondents in this case as necessary parties.
Under this issue the main contention of A. Ekong Bassey (SAN), the learned senior counsel for the appellant, was that in the petition several allegations of electoral malpractices, fraud, falsification of result etc., were made against either the presiding officer, the returning officer, electoral officer or other officials of INEC. All these allegations were criminal offences, which, under our law, ought to be proved beyond reasonable doubt. It was therefore mandatory that under section 83 (c) of Decree No. 36 of 1998, such persons should be joined as respondents to the petition so as to give them opportunity to defend themselves. The trial before the tribunal was therefore very unfair, as the INEC officials were so badly damnified without being given any opportunity of being heard as parties in the case. To be fair to the learned Senior Advocate of Nigeria, I reproduce herewith the opening paragraph of his arguments under this issue as they appear in his brief.
Issue No.4
In this case both in his pleadings and in evidence, the petitioner’s case was that there were cases of falsification of results by presiding officers, returning officers and INEC officials. In paragraph 5 of the petition, the petitioner pleaded thus (see page 5 of the record):
“Your petitioner contends that the following contrived and illegal votes were added to the result of the election in the chairmanship contest to arrive at the result announced by the electoral officer at the LGA collation centre and should be deducted …” At paragraph 4(f) the petitioner pleaded that while voters were not accredited their names were ticked as though they were accredited and did vote. And at paragraph 4(g) the petitioner pleaded thus:
“without any justification
whatsoever the returning officer for the election in Form EC8C added 500 votes to the PDP candidate thereby further falsifying the result of the election,” In his evidence (see page 33 of the record), the petitioner said: “My problem with the result is that I was not satisfied with the declaration that the 1st respondent was the winner with 21,520 because there were falsification and miscalculation.” Again, and in particular in both of Ikot Ekang, Abak Urban Ward 4 and Ikot Imo, Midim Ward 2 where the tribunal conceded 900 and 330 votes respectively to the petitioner, the allegation was that the petitioner’s votes in Form EC8A were not recorded in the respective Forms EC8B which forms bore false and fictitious nil votes for the parties.
We submit that under the law the Tribunal ought not to have entertained these allegations of falsification without joining the various presiding, returning and electoral officers. Ordinarily it was unfair for the tribunal to have the conduct of these various officers so badly damnified without giving them a hearing. The petitioner was duty bound to join them as respondents,
In view of all the arguments summarised above. he urged this court to allow this appeal, and confirm the declaration by INEC that it was the appellant who scored the majority of valid votes etc.
In response to the above, Chief A.E. Assam, the learned counsel for the petitioner conceded that only the 1st appellant and the INEC were the respondents without the presiding officer, the returning officer or electoral officer being joined as respondents. He submitted however that under paragraph 48(1) of Schedule 5 to the Decree No. 56 of 1998 relied upon by his learned friend, the INEC officials whose conducts were complained of in an election petition were “deemed” by operation of law “to be respondents and joined in the election petition as a necessary party.” He then urged the court to give the meaning propounded by him to the law. I should also mention that the learned counsel for respondent has also filed a “respondent’s notice” in addition to his brief, asking that the judgment of the tribunal be confirmed on other ground. However, as I said earlier in this judgment, the question of the proper respondents or defendants being made parties to a petition or suit is so fundamental that if proper parties are not before the court, the whole trial may become an exercise in futility, as the orders of a court of law cannot be binding on persons who are not parties to the proceedings. It is only if I find that necessary parties were before the tribunal that I will consider whether the judgment of the tribunal should be confirmed on other grounds or not. I shall now proceed to resolve.
First, I must say that the question of joining officials of INEC in an election petition where misconduct is alleged is not just a fanciful idea though out by learned senior counsel for the appellant. It is a statutory requirement provided for under section 83(2) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 56 of 1998 which reads as follows:
S. 83(2) The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, the electoral officer, presiding officer, a returning officer or that other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party.”
With the above provision in mind, I have critically re-read paragraph 4(a) (g) of the petition filed in this case before the tribunal, to see precisely whose conduct was being complained about.
I find out in the first place that although the 1st appellant herein was a candidate at the 5th December, 1998 election under the platform of the Peoples Democratic Party (PDP), his name was not mentioned in any of the paragraphs 4(a) – (g) of the petition as having done this or that or procured people to do this or that for him. To particularise, I find that paragraph 4(a) made an allegation of “overvoting” at Otoro Ward II in that 5,262 persons voted, while infact only 5,250 voters were registered. This was clearly not an allegation against the appellant as he had no role to play in the conduct of the election. At best, if anybody could be blamed for allowing over-voting, it should be the presiding officer. Be it noted that there was no indication whether the excess voters were PDP or APP members.
In paragraphs (b), (d) and (f) there were allegations that no elections were held at Ibong Otmo in Otoro Ward III at Ikot Akpan Adia village square in Abak Urban Ward I, and Otoro Ward 2, because thugs invaded the places and made away with voting materials. Yet, inspite of these disruptions, large number of votes were recorded. Whose fault could this be? In paragraphs (b) and (d) the presiding officers were mentioned while in para. (f) the returning officer (one Mrs. Agnes E. Ukpe) was mentioned.
In para (c) where it was alleged that the respondent scored 900 votes to nil scored by the PDP candidate at Ikot Ekang, yet the votes were ignored and omitted from the collated result, nobody’s name was mentioned, yet either the presiding officer, or the returning officer would be responsible for omitting a candidate’s score from the collation sheet but certainly not the appellant who was only a candidate. Lastly in paragraph (c) where it was alleged that the respondent scored 480 votes as against 20 votes scored for PDP at Midim Ward 2 at Nto Obo II village, it was alleged that the presiding officer, recorded the votes into Form EC8A showing 480 votes for APP and 20 for PDP, yet these figures were later reversed such that APP scored zero while PDP scored 500 votes in the collated result of the ward.
In view of the foregoing analysis showing that no allegation of any misconduct of electoral malpractice whatsoever was made against the appellant in this case, the petition of the respondent should not have been directed against him. However, if it was sought to nullify the entire election in the Local Government Area or part thereof, then the presiding officer, the electoral officer and the returning officers, who had the job of actually conducting the election on the ground, should have been joined as statutory respondents. It was not enough merely to say that INEC was a party. Nobody expected the Hon. Justice Akpata the Chairman of INEC to come all the way from Abuja to represent his Commission in an election petition at Abak. Before concluding, I must observe that the rule that proper parties must be before the court to give it jurisdiction also applies in ordinary civil proceeding to bind the parties. For instance, a plaintiff whose car was damaged by the negligent driving of a defendant’s car driven by his driver, Mr. O. will be unable to claim from the defendant (the owner of the car) unless his driver (Mr. D) who actually drove the car was joined as a co-defendant. That is because the liability of the owner is purely vicarious, and there is no way the owner of vehicle can be vicariously liable unless his driver who actually caused the accident was also sued and made liable. See Akinsanya v. Longman (1996) 3 NWLR (Pt. 436) 303.
In the instant case, there was no evidence that appellant actually committed any of the electoral malpractices complained of, and no evidence that any of the INEC officers who actually conducted the election was his agent. There was therefore no cause of action against the appellant. If anybody could have been sued e.g. to declare the election void for widespread malpractices it should have been the INEC officials i.e.: (1) the presiding officer (2) electoral officer (3) the returning officer.
Since none of these officers was made a party, the whole trial was a nullity. As for the consequences of not joining INEC officials in a petition alleging electoral malpractices, see the case of Gbadamosi v. Azeez (1998) 9 NWLR (Pt.566) 471 at 475 where the Court of Appeal (Ibadan Division) had the following to say per Muri Okunola, J.C.A.
“In an allegation of electoral malpractices against an official of the Electoral Commission, the non-joinder of the Electoral Commission has the consequence of depriving the tribunal of jurisdiction to adjudicate and pronounce on the issues which fundamentally affect the proper functioning of the Commission in the exercise of its jurisdiction under the relevant Decree. In the instant case, as NECON was not joined to the action, neither the tribunal nor the Court of Appeal has the jurisdiction to pronounce on issues of corrupt practices leveled against NECON presiding officer. (Chime v. Ndu (1993) 2 NWLR (Pt. 277) 533 at 542 referred to and followed) (P.475. paras G – H).
On the totality of the foregoing, I am of the firm view that since all the 8 allegations of malpractices in this case were made against the INEC officials (i.e. presiding officers, electoral officers or returning officers) and none against the appellant it was incumbent on the petitioner (i.e. the respondent herein) to have joined some of these agents of INEC as correspondents. To have sued INEC (the principal) without joining its officials who were its agents was like suing the owner of a vehicle without joining his driver, who was the actual tort feasor.
In effect, therefore, this appeal was well taken and is hereby allowed. The whole trial at the tribunal is hereby declared a nullity, as necessary parties were not joined as respondents. The decision and orders of the tribunal are hereby set aside. The appellant is accordingly hereby returned as the Chairman-elect of the Abak Local Government with costs assessed at N3,000.00 in favour of the 1st appellant.
Other Citations: (1999)LCN/0551(CA)
