Barrister Temi Harriman V. Dr. Alex Ideh & Ors (1999)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal from the judgment of the Delta State National Assembly Election Tribunal holden at Asaba delivered on April 30, 1999. The judgment was in respect of two petitions filed against the declaration of the result of the election held on 20 February, 1999 in respect of the election into the Warri Federal Constituency seat. The two petitions with Nos. DT/EPT/NA/7/99 and DT/EPT/NA/9/99 were respectively filed by Dr. Alex Ideh and Mr. Emmanuel Orisetimeyin Orugboh against Miss Temi Harriman and others as defendants. The two petitioners and Temi Harriman were the candidates at the election. Dr. Alex Ideh was the candidate of the Peoples Democratic Party (PDP); Mr. Emmanuel Orugboh was the candidate of the Alliance for Democracy (AD); while Miss Temi Harriman was the candidate of the All Peoples Party (APP).

At the conclusion of the election, Miss Temi Harriman, the APP candidate, was declared the winner. Each of her two opponents then filed a separate petition. But following an application made to the tribunal, the two petitions were consolidated and heard together by the tribunal. Each of the two petitioners pleaded the facts relied upon in support of the respective petition and they also made identical prayers from the tribunal. Their identical prayers are as follows:

“(i) That the declaration of the Respondent as the Warri Federal Constituency House of Representative Elect, in the election to the Federal House of Representative purportedly held on the 20th day of February, 1999 by the 2nd respondent is NULL and VOID pursuant to the postponement and or cancellation of the election by the 3rd, 4th, 5th and 6th respondents vide letter dated 20th day of February, 1999 and radio announcement in Delta Broadcasting Service on 20/2/99 and 22/2/99.

(ii) AN ORDER that the 1st Respondent was not duly elected or returned by the 2nd respondent in the Warri Federal Constituency (Federal House of Representative Election) and that the election was Null and Void in view of the postponement and or/cancellation of the election by the 3rd, 4th, 5th and 6th respondents vide letter dated 20/2/99 and 22/2/99.

(iii) AN ORDER that a fresh election and or a bye election be conducted by the 3rd, 4th, 5th and 6th respondents in the Warri Federal Constituency for (House of Representative) election.”

Miss Temi Harriman, who was the 1st respondent in each of the two petitions, filed a reply to the petitions. Similarly, a joint reply was filed on behalf of INEC and all its officers joined in each of the two petitions. At the conclusion of pleadings, the two petitions were heard together. Evidence was led by the parties during the hearing and at the conclusion of the hearing the tribunal delivered its reserved judgment on 30/4/99. In it, the tribunal held, inter-alia, that the two petitions succeeded and that the election held in the Warri Federal Constituency on 20/2/99 as a result of which the 1st respondent was declared elected, was null and void.

The 1st respondent (Miss Temi Harriman) was dissatisfied with the verdict handed down by the tribunal. She accordingly appealed against it to this court. Ten grounds of appeal were filed against the judgment. The appellant filed an appellant’s brief and a reply brief in this court. A brief was filed on behalf of Dr. Alex Ideh, who is listed as the 1st respondent in the first of the two consolidated cases. A brief was also filed on behalf of INEC and its officials joined in the two cases respectively as 2nd to 6th respondents and 2nd to 10th respondents. No brief was however filed on behalf of Mr. Orugboh, the 1st respondent in the second of the two consolidated cases. But he was represented by a counsel, Ukubeyinje Esq., at the hearing of the appeal before this court.

The facts of the case as extracted from the petitions and evidence led at the trial are that the appellant and the two afore-mentioned candidates (Dr. Alex Ideh and Mr. Orugboh) were candidates in the election into the Federal House of Assembly scheduled for 20/2/99 in the Warri Constituency of Delta State. The appellant was the candidate of the APP, while Dr. Ideh was the candidate of the PDP. Mr. Orugboh was the candidate of the AD. On 19/2/99, all the necessary materials to be used by the INEC officials during the election were delivered by INEC to its officials who were to conduct the election. Early on the day fixed for the election, the INEC officials set out for their respective posts where they were to conduct the election. The election was scheduled to start at about 8.a.m.

However, a news item was issued by Mr. E. O. Effanga, INEC’s Administrative Secretary for Delta State, on behalf of INEC to the effect that the election into the Warri Federal Constituency along with some others in Delta State had been postponed by INEC. The news item signed by the Administrative Secretary for the Resident Electoral Commissioner, Delta State (admitted in evidence as Exhibit A) reads as follows:

“Independent National Electoral Commission

P.M .B, 5005. Asaba

Delta State of Nigeria

Ref No…….Date 20th February, 1999

Special Announcement

Arising from the fragile security situation in some areas in the State, INEC has decided to postpone both the Senatorial and House of Representative elections in the following Senatorial/Federal Constituencies:-

Senatorial

(a)(i) Delta North

(ii) Delta Central

House of Representatives

(b)(i) Aniocha/Oshimili

(ii) Ndokwa/Ukwuani

(iii) Ughelli/Udu

(iv) Ethiope

(v) Warri

Any votes cast in respect of the postponed election shall be null and void and of no effect. Electoral, Presiding and Returning Officers are to note and comply accordingly.

(Sgd.) A

E.O. Effanga

Administrative Secretary

for: Resident Electoral Commissioner

Delta State.”

The above news item was said to have been announced several times on Radio Delta on 20/2/99, the day of the election, starting from about 8.15 a.m. It was also carried at 4.p.m. as part of the network news of the Radio Nigeria. But despite the issuance of the news item, the official of INEC assigned to conduct the election went ahead with the election as if no instruction to postpone the election, as contained in the news bulletin, had been issued. At the end of polling, the results were collated. The scores credited to each of the three candidates are as follows:

‘”(i) Miss Temi Harriman (APP) 121,505

(ii) Dr. Alex Ideh (POP) 6,569

(iii) Mr. Orugboh (AD) 7,901.”

Miss Temi Harriman of the APP was accordingly declared the winner of the election. It was this declaration that prompted each of the two other candidates to file the two petitions.

The appellant formulated the following 5 issues in her brief:

“(1) Having held that the election for the Warri Federal Constituency held inspite of its postponement by INEC, was it proper for the tribunal to have nullified the election of the Appellant as a member of the House of Representatives when:-

(a) beside the notice of postponement the petitioners did not show that the election was not conducted in substantial compliance with Decree 1999 No.5.

(b) It was the case of the Petitioners that their supporters did not go to vote but at the same time by his own admission and by figures produced by the Petitioner in Petition No. 7 the result in the Local Government, House of Assembly and Governorship elections and the one to the Warri Federal Constituency showed similar total turn out of voters.

(c) the Petitioners did not lead convincing evidence of voter apathy as a result of the broadcast.

(2) what is the proper way to abort an election after it had commenced, is it by postponement or by cancellation, for good cause such as apprehension that serious breach of the peace may occur if proceeded with on the appointed day.

(3) whether postponement of an election is one of the grounds for challenging an election.

(4) whether all necessary parties were joined in the Petition.

(5) whether the election was conducted substantially in compliance with the provisions of Decree 1999 No.5.”

The 1st respondent, on the other hand, formulated the following three issues:

“(i) Whether the election in the Warri Federal Constituency (Federal House of Representatives) fixed for 20/2/99 was postponed by the 3rd, 4th, 5th and 6th Respondents.

(ii) Whether the announcement of the postponement of the election of the Warri Federal Constituency, (Federal House of Representatives) on 20/2/99 by the 3rd, 4th, 5th and 6th Respondents, substantially affected, the result of the election.

(iii) Whether the Election Tribunal was right in nullifying the election of the Warri Federal Constituency (House of Representatives) fixed for 20th day of February, 1999 having regard to the evidence before it.”

Three similar issues as those formulated in the 1st respondent’s brief are also formulated in the 2nd to 10th respondents’ brief.

The 1st respondent also filed a notice to raise a preliminary objection which has been raised in the 1st respondent’s brief. When the appeal came up for hearing in this court, Mr. Imadegbelo, learned counsel for the 1st respondent raised the said preliminary objection. His objection is that grounds 1, 2, 3, 4, 5, 8 and 9 of the grounds of appeal filed by the appellant are incompetent in that their particulars are argumentative, narrative and verbose. It is alleged that most of the particulars are independent complaints not ancillary to the main grounds of appeal. He referred to Order 3 Rule 2(2) and (3) of the Court Appeal Rules and submitted that grounds of appeal with narrative, argumentative and verbose particulars, as in those now complained of, should be struck out.

The learned counsel referred in particular to ground 5 of the grounds of appeal where the appellant alleged both error of law and on the facts. It is submitted that the ground is totally incompetent.

Mr. Longe, learned counsel for the appellant, conceded that ground 5 of the grounds of appeal is defective. He therefore applied to abandon it. But he disagreed that the other grounds of appeal complained of are incompetent. He said further that even if the other grounds complained of are struck out, such would not affect the appeal because the remaining grounds would be enough to sustain it and that the appellant’s brief, as now prepared, would not be affected.

In the ground 5 of the grounds of appeal, the appellant complained, inter-alia, that the learned Justices of the tribunal “erred in law and on the fact when it held…I entirely agree that the ground of appeal is in conflict with the requirement of Order 3 Rule 2(3) of the Court of Appeal Rules. Order 3 Rule 2(2) and (3) provides thus:-

“(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”

The fact that the appellant complained of error in law and on fact in ground 5 makes that ground to be in conflict with the mandatory provision of the aforementioned Order 3 Rule 2(3) requiring that the grounds of appeal, shall set forth concisely and under distinct heads…”. To lump up under a ground complaining of misdirection of law and on the fact, definitely amounts to not setting forth “concisely under distinct heads” the grounds upon which the appellant intends to rely on. I believe therefore that the ground of appeal is in fact defective and that Mr. Longe acted rightly in conceding the point. The said ground 5 is therefore struck out.

In ground 1, 2, 3 and 4 of the grounds of appeal, the appellant complained of specific error in law in each of the grounds. There is no lumping up of any of the complaint with any other matter as is the case with ground 5 already discussed above. The complaints in respect of each of the 4 grounds therefore relate to the particulars given. The error in law complained of in ground 1 is in respect of a passage from the judgment relating to paragraphs 10 to 14 of the second petition against the provision of section 79(1) (b) and (c) of the Decree No.5 of 1999. The particulars given are that:

“It is not the contention of the 1st respondent that the petitioners must set down the precise words used in section 79 of the Decree but that the grounds relied on by them as set out in their respective petitions do not equate to provisions of section 79.”

I have no doubt in holding that there is nothing wrong in the particulars given in respect of that ground of appeal since I do not consider the said particulars as any argument or narrative which are prescribed in Order 3 Rule 2(3).

Similarly, the error of law complained of in respect of ground 2 relates to the finding of fact made by the tribunal in respect of INEC holding the election and purporting to declare the result after the same INEC had postponed the same election. The particulars given are to the effect that the finding of fact was not in accordance with the facts presented before the tribunal. I also believe that there is nothing wrong with the particulars as set out in that ground of appeal.

Also in ground 3, the error of law complained of is in respect of the tribunal’s observation that the respondents in the two petitions had denied the fact of postponement but later turned summersault to admit same. The particulars given is in respect of the import of pleading and that the requirement was met. I believe that such is quite in order and in compliance with the requirement of the aforementioned rule.

The complaint in ground 4 is about the tribunal’s remark that the INEC was wrong to have turned round and hold the election after announcing the postponement. The particulars given are that what INEC did was in line with the enabling law. Again, I believe that there is nothing wrong with the particulars given in respect of that ground.

In the result, I hold that the objection as it relates to grounds 1, 2, 3 and 4 lacks any merit.

The appellant had complained in ground 8 about the tribunal’s observation and conclusion relating to why the elections postponed were not held in other places except the one in dispute in the petition. The particulars given are that there is nothing wrong in taking each case on its merits having regards to the facts proved in the case. Again I believe there is nothing wrong with the particulars given in respect of that ground of appeal.

Finally, the complaint in respect of ground 9 is about error in law. It is in respect of the tribunal’s observation about the conduct of the 2nd to 10th respondents in the petition in conducting the election after the announcement of the postponement. The particulars given are to the effect that there was no evidence to establish that the postponement affected the election. I believe too that there is nothing wrong with the particulars. My conclusion therefore is that there is no merit in the objections as they relate to all the grounds of appeal complained of except ground 5. The objection is accordingly dismissed. I will now proceed to deal with the appeal on its merit.

The main grievance of the appellant as canvassed in her brief is that the tribunal had no justification in nullifying the election in view of the fact that the respondents totally failed to prove that the radio announcement made to the effect that the election had been postponed had any effect on the turn out of the electorates and generally affected the way the election was conducted. It is argued that since it was in evidence that there was totally no difference in the general turn out at the election when compared with the turn out in the other elections conducted in the series of elections, it was wrong of the tribunal to hold that the mere announcement on the Delta State radio after the time the election had started, was enough ground for nullifying the election without proving the existence of any other factors. It is also submitted that the petitioners needed to show, among others, that the announcement affected the turn out and the general conduct of the election.

Specific reference is made to the evidence tendered at the trial in which the figures of the turn outs in the other elections conducted in the series of elections were given. The figures are as follows:

“(a) Local Government election total votes – 133,187

(b) House of Assembly elections total votes – 145,937

(c) Governorship elections total votes – 148,608

and

(d) House of Representatives total votes – 135,975

It is then submitted that since it has not been shown that there is any remarkable difference in the turn out in the election to the House of Representative vis-a -vis the other elections conducted in the series, the petitioners therefore failed to establish that the electorates in fact heard the radio announcements about the postponement and that if they heard the announcements, they in fact acted on them by staying away from coming out to vote. It is contended that failure of the petitioners to establish this vital point, their petition ought to have been dismissed.

It is also argued that since postponement of an election is not one of the grounds upon which an election petition could be founded and there is no allegation that the election was not conducted by the people authorised to carry out the exercise, there was totally no reason for tampering with the result of the election which was lawfully conducted.

It is submitted in reply in the 1st respondent’s brief which Mr. Ukubeyinje, learned counsel for the 1st respondent in the second consolidated case, adopted, that the petitioners adequately proved their case in that since it has been shown that the order for cancellation emanated from the appropriate authority, and that it was duly acted upon, it was wrong to hold that the election purported to have been held was lawful and acceptable. It is further argued that since it has not been shown that the tribunal’s finding of fact that the election was postponed was perverse or made without supporting evidence, it will be wrong for this court to tamper with that finding when such is adequately supported by the evidence led in the case. The main question to be resolved in the appeal, in my view, is whether the tribunal was right in nullifying the election on mere proof by the petitioners, in the instant case, of the radio announcements made on the day of the election without proving that the said announcement in fact affected the turn out and the conduct of the said election. I have no doubt that a petitioner in a situation of this nature needs to do more than merely proving that there was a radio announcement to the effect that the election had been postponed. I believe that since the purpose of holding an election in a democratic set up is to determine the wishes of the people as to who should represent them in their legislative and executive set up. It is therefore necessary to ensure that any election conducted is done in a way that would substantially ensure that that main objective is substantially met.

In trying to meet that set objective, I believe that before any tribunal could nullify any election duly conducted by the authority saddled with that assignment, all the necessary factors must be meticulously taken into consideration with the aim of ensuring that there are compelling factors to warrant or justify such a serious decision. This stand is buttressed by the fact that nullification or invalidation of an election is the gravest punishment that a candidate duly declared elected and the authority charged with conducting such election can experience. This is because such a decision would mean going through the expenses, trauma and other hazards of having to go over another election. See Na-Gambo v. NEC (1993) 1 NWLR (Pt.267) 94 at 106.

Thus, in the present case, I believe that apart from the fact proved that a news bulletin issued from the Delta State Headquarters of INEC, after the election in question had commenced, to the effect that the election in question had been postponed, a petitioner needs to prove more facts before he can successfully set aside the result of such election. Among the facts he needs to prove before he can succeed are that:-

(1) the INEC staff charged with the conduct of the election were duly informed of the postponement and yet they went ahead on their own choice to conduct the election and then announced the result: and

(2) he needs to prove that the announcement reached the electorate who actually acted on it by staying away from voting if in fact the election was held. This can only be proved by showing that the turn out in the election held after the said announcement was so low when compared with other elections held in the area in question around the same time that the only inference one could draw is that the low turn out was as a result of the said announcement.

These two factors were totally not taken into consideration by the tribunal before it came to the conclusion it reached in the present case. I believe that the tribunal’s failure to consider those factors, is very crucial, particularly after taking into consideration the glaring evidence of the fact that the turn out at the election sought to be nullified is similar to those in the other series of elections recently held in the same constituency. I believe that this omission is so crucial to the success of the petitioners’ case.

In the result, I hold that there is merit in the appeal. The order of the tribunal nullifying the appellant’s election as declared by INEC and based on the election held on 20/2/91 is hereby set aside. In its place, I hereby make an order dismissing the two petitions filed against the election and I hold and affirm that the election was in order and that the appellant was the duly elected candidate at the said election. The appellant is entitled to costs which I assess at N2,500.00 against the 1st respondent in each of the two consolidated cases.

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Other Citations: (1999)LCN/0477(CA)