Democratic Peoples Party & Anor V. The Independent National Electoral Commission & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ALFRED P. EYEWUMI AWALA, J.C.A.
The 2nd Appellant as candidate sponsored by the 1st Appellant contested a rescheduled election held on 28/4/07 instead of it being part of the general election held nationwide on 14/4/07 for a seat in the Plateau State House of Assembly representing Langtang North Constituency. The rescheduled election was necessitated to accommodate the Appellants as the ballot papers provided by the 3rd Respondent for the 14/4/07 election excluded the name and logo of the 1st Appellant as required by the Electoral Act, 2006.
The 4th Respondent equally contested the rescheduled election of 28/4/08 on the platform of the People Democratic Party (PDP) not joined as a party in this Appeal. At the end of the collation of the election results the 4th Respondent was returned elected with a total of 7,308 votes while the 2nd votes. Appellant came second with a total of 6,348 votes.
Aggrieved by the election result as declared, the Appellants proceeded to file a petition No, PL/LH/EPT/18/2007 on 15/5/07 at the lower tribunal, that is to say the Governorship and legislative Houses Election Petition tribunal holden in Jos on one ground to wit:
“That the Election of the 4th Respondent was invalid for noncompliance with the provisions of the electoral Act.”
PARTICULARS
- The 1st Respondent as the body responsible for the conduct of elections educated the electorates of the existence of separate ballot papers assigned for each election.
- The same ballot papers Used for the Presidential elections of 21/4/2007 were used on 28/4/2007.
- The 1st Respondent conducted another presidential election on the 28/4/2007.
- The 1st Respondent cannot use the same ballot papers for different elections.
- By the electoral Act, the 1st Respondent is obliged to provide separate ballot papers for the election of 28/4/2007, to incorporate the name of all the political parties contesting the election but the 1st Respondent removed the name and symbol of the LP Party, which had appeared in the ballot paper of 14/4/07, and whose candidate had not withdrawn for (sic) the contest.
- The 2nd Respondent as Returning Officer notwithstanding the absence of ballot papers meant for the elections and unlawful exclusion of the Labour Party, the 1st Respondent accepted the counting of the ballot papers, used for the election, and declared and returned the 4th Respondent as elected.
- The ballot papers used for the election of 28/4/07 in the Langtang North Constituency is in violation of the provision of the electoral Act (See pages 6-7 of the record).
The reliefs sought by the Appellants in their petition are as follows:-
(A) It be determined that the Labour Party and its candidate, who was validly nominated were unlawfully excluded by the 1st Respondent, from contesting the election into the Langtang North Constituency of the Plateau State House of Assembly held on April 21st, 2007.
(B) It be determined that the election or return of the 4th Respondent made by the 2nd Respondent in the election of 21/4/07 for Langtang North Constituency be nullified.
(C) It be determined that the said Nanpon T. Bongden (4th Respondent), was not duly elected or returned at the election of 14/4/07 (sic).
(D) It is determined that the 1st Respondent conducts an erection into the Langtang North Constituency, of the Plateau House of Assembly.
The 4th Respondent filed his Reply on 18/6/07; so did 1st and 3rd Respondents jointly. On 28/6/07 after the respective Replies by the Respondents; Petitioners/Appellants filed a motion on notice for an order striking out paragraphs 1,4,24 (C), 25 (I-K, N) of the 4th Respondent’s Reply to the petition supported by a 9 paragraphed affidavit wherein it is deposed that the 4th Respondent’s Reply pleads that the 2nd Petitioner/Appellant is not qualified to contest the election as he did not possess the minimum qualification of at least Secondary School leaving certificate (SSCE) pursuant to section 107 (sic) section 106 (c) of the Constitution of the Federal Republic of Nigeria 1999 to wit:
“106 subject to the provisions of section 107 of this constitution, a person shall be qualified for election as a member of a House of Assembly if ….
(c) He has been educated up to at least the School Certificate level or its equivalent…
The Grounds for the prayer are:-
1) The petition is against the undue return or election of the 4th Respondent.
Section 145 of the Electoral Act specifies the Grounds for questioning the election of a person declared elected or returned.
3) Section 107 of the constitution of the Federal Republic of Nigeria specifies the ground for disqualification.
4) This tribunal lacks jurisdiction to determine electoral offences.
5) The qualification of a person to stand election can only be challenged in a post-election matter, by, way of petition.
The motion as, aforesaid supported by a 9 paragraphed affidavit together with the petitioners’ written address were adopted and relied on. The 4th Respondent filed a 6 paragraphed counter-affidavit together with a written address adopted and relied on. On 14/8/07 lower tribunal heard the motion and held inter alia at page 113 of the record, as follows:-
“From the above, we are of the respectful view that the 4th Respondent not being a petitioner, can not come under SS. 144 and 145 (1) of the Electoral 2006 to make averments in his Reply raising the issue of the qualification of the 2nd petitioner as he is
(i) Not a petitioner but a Respondent.
(ii) He is prohibited under S. 32 (4) and (6) and S. 148 of the Electoral Act, 2006:
(iii) Our jurisdiction in respect of those sections is excluded.
(iv) Paragraph 12 (2) of the 1st schedule to the Electoral Act, 2006 does not accommodate the nature of the Reply made. Accordingly paragraphs 1, 24 @, 25 (I – K) and N) of the 4th Respondent’s Reply to the petition are incompetent and therefore struck out. For the avoidance of doubt, we find’ paragraph 4 of the 4th Respondent’s Reply competent and the application to strike it out is refused consequently, the application succeeds in part only.” (See pages 90 to 113 of the record).
As there is no appeal on the above ruling, I say no more about it.
The lower tribunal then proceeded to hear the petition as from 20/8/07 with the petitioners calling two (2) witnesses PW1 and PW2 and the 4th Respondent three DW1, DW2 and DW3. In a full below out hearing and each side tendering exhibits in support of their respective cases. In the end the petition was dismissed. Aggrieved, the petitioners appealed to this Court formulating five grounds of Appeal from which four issues are distilled, to wit:
(1) Whether having found that the failure of 2nd Respondent to use the prescribed ballot papers is a violation of the Act, the petitioners are not entitled to the reliefs sought (Based on ground one)
(2) Whether the lower Court was right in holding that the ballot papers used for the election were separate or different from that used on 21/4/2007, presidential election? (Based on Ground 4 and 5)
(3) Whether in the face of the evidence before the tribunal, the tribunal was right to hold that the electorates were not misled (Based on Ground 3.)
(4) Whether the lower tribunal was right in refusing to nullify the election of the 4th Respondent (Based on Ground 2)
In response the 4th Respondent raised three issues namely:-
(i) Whether the use of the improvised Ballot papers i.e. the presidential election ballot papers’ provided by the 1st to 3rd Respondents and used for the House of Assembly Election into Langtang North constituency which appellants participated in and scored votes, the rescheduled election which held on 28/4/07 was rendered in-valid for non-compliance with the Electoral Act, 2006.
(ii) Whether the rescheduled election into Langtang North Constituency that held on the 28/4/07 was held in substantial compliance with the provisions of the Electoral Act, 2006.
(iii) Whether the lower tribunal was right in dismissing the Appellants’ petition.
On their own part the 1st to 3rd Respondents adopted the 4 issues framed by the Appellants. For an apt comprehension of this judgment I prefer the issues framed by the 4th Respondents to resolve this appeal.
Issue one “whether by the use of the improvised Ballot papers i.e. the presidential election ballot papers provided by the 1st – 3rd respondents and used for the House of Assembly elections into Langtang North constituency which the appellants participated in and scored votes, the rescheduled Election which held on 28/4/07 was rendered invalid for non-compliance with the Electoral Act, 2006.”
Appellants’ learned counsel submitted that in the pleadings of the parties the following are agreed upon:-
i) Only political parties, with candidate were entitled to have their names and symbol reflected in the ballot papers.
ii) Electorates were enlightened to the effect that ballot papers would bear only the names and symbol of political parties with candidates at the election.
iii) Different ballot papers, with different colours will be used for each election.
iv) That in respect of the gubernatorial, House of Assembly, presidential and National Assembly elections, different ballot papers with different colours were used.
The Appellants contended that the use of presidential ballot papers for the House of Assembly Election was in contravention of the Electoral Act. That the tribunal clearly agreed with the evidence of PW1 and PW2 that there was general confusion when it held, inter alia.
“There is no doubt on a strict interpretation; there is prima Facie infraction here by INEC (underline supplied by counsel).
Contending further counsel submitted that Section 45 (2) of the Electoral Act, 2006 backs up the case of the Appellants that the ballot papers meant for use at each election should be different and distinct from each other. Thus, no ballot paper going by the holistic reading of S. 45 (2) of the Act, can be used for two separate election. Section 45, (2) reads.
“The ballot papers shall be … numbered serially with differentiating colour for each office being contested.” (Underline by counsel.)
Counsel concluded by submitting that the tribunal conceding as above held that in fact there was a violation of the Electoral Act, in respect of the ballot papers used for the instant election, but that it is not fundamental and applying the provision of S. 146 (1) of the Act held that the non-compliance did not substantially affect the, result of the election. He concluded that-that holding is perverse and should be corrected by this Court.
On his part the 4th Respondent argued there is no doubt that the 1st to 3rd Respondents had complied with the Provision of Section 45 by providing ballot papers which included the symbol of the 1st Appellant for the said election. That indeed there was no complaint against the 1st to 3rd Respondents in respect of the first arm of Section 45 to wit:-
45 (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 offer information as it may require.”
The complaint he opined is with regards the 2nd arm of S. 45 only to wit: 45 (2) “the ballot papers shall be bound in booklets and numbered serially with differentiating colours for each office being contested.”
4th Respondent’s learned counsel submitted further that there is no doubt there is a breach of 45 (2) by the use of the presidential Ballot papers but it is clearly a minor breach only and this can not form the basis for nullifying an election as found by the lower tribunal. He cites Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 361 where the Supreme Court held as per Pats A. Acholonu JSC.
“In respect of section 135 (1) what really is the import of the expression substantially in accordance with the principles of the Act? In order not to arrive at a construction that may be pejorative of the expression or which might do violence to what it denotes having regard to the con in which that phrase appears in the statute, a holistic approach to the interpretation is important. That is to say that, too much should not be made of certain seeming violation or irregularities that do not fundamentally and materially affect due effectiveness and actualization of the spirit of the Act … As I have stated earlier above the purpose of the inclusion of section 135 (1) in the Act is to prevent an election from being invalidated on mere failure to comply with minor provisions of the electoral Act which have no effect or substantially affect the out come of the election.”
4th Respondent’s counsel then opined that that is the stand of the lower tribunal and it should not be disturbed. Counsel to the 1st to 3rd Respondents on their part in their joint brief supports the view of the 4th Respondent that the breach of the provision of Section 45 (2) was a minor breach which did not affect the result of the election.
Now I must say that Section 135 referred to by Pats A. Acholonu JSC reproduced above is in pari material with S. 146 of the Electoral Act, 2006. Secondly it is a discretionary provision. Thirdly I must state that it is now settled law that an Appellate court will not make it a practice of disturbing the findings of a trial Court or tribunal, particularly where the credibility of witnesses based on the demeanour of the witnesses is in issue. In my view that is far from the case in this appeal. In the instant case for example Exhibits P4, P5, and P5, and P6 that is to say, presidential ballot papers, the ones used on 21/4/07 improvised for use on 28/4/07, ballot papers of 14/4/07 discarded and so on including pieces of oral evidence of PW1, PW2 and DW1 unchallenged except by cross-examination without effects on the witnesses are as follows:-
PW1 Mr. Joseph Nanzing, a student. He Jives in Langtang North L.G.A. He testified that he did not vote on 28/4/07 because he was not sure what was on the ground. Was it presidential or House of Assembly poll? (As the Ballot papers he saw was presidential). He was thoroughly cross-examined by Mr. Umoh for the 4th Respondent. He remained unshaken stating that he was confused. He did not vole on 28/4/07 because he was not sure of what was happening.
PW2 Mr. Sunday Nanwawa John, the 2nd Appellant, a politician. He testified that he completed form CF.001. That 1st Appellant sponsored him and he was screened and cleared by the 1st Respondent to contest the 14/4/07 general election rescheduled to 28/4/07. He completed the necessary forms ‘admitted as Exhibits P1 and P2 respectively with out objection by Mr. Umoh for the 4th Respondent. He testified further that he did not vote on 28/4/07 because he did not like what he saw, the presidential Ballot papers improvised for the election for the state House Assembly seat he was contesting. He also tendered his nomination form admitted as Exhibit “P3”. Again he was thoroughly cross-examined by Mr. Umoh and was unshaken. Mr. Abdullahi for the 1st to 3rd Respondents also cross-examined him. He remained adamant that the use of the presidential ballot improvised for the election upset him. He did not even vote for himself.
DW1. Hon. Pona Banda. He is a politician. He was called by the 4th Respondents. He testified that he is a party agent for the 4th Respondent. He testified further that he saw the improvised ballot papers used for the election. He replied on cross-examination by S.S. Obende Esq. for the Appellants that only, 5 political parties with candidates contested the 28/4/07 election. The ballot paper admitted as (Exhibit p5) had 25 political parties shown including their respective logos.
Mr. Obende submitted that the above evidence adduced are all evidence of breach S. 45 (2) of the electoral Act, 2006. They were not adequately considered by the lower tribunal before applying 5. 146 of the Act to dismiss the petition holding that the breach is a minor one.
Now come to think of it DW1 did not testify that the noncompliance caused a general confusion or the near fracas as it happened on 14/4/07 that led to the rescheduling of the election to 28/4/07. Certainly his evidence did not nail the coffin on the head as opined by Mr Obende. DW1 testified that he saw the improvised ballot papers used for the election on 28/4/07. Under cross-examination by Mr. Obende, he said five political parties with candidates contested the rescheduled election on 28/4/07 with their respective Logos shown on the improvised ballot papers including the Appellants party Democratic people party (DPP). Apart from PW1 a student who said he was confused by what he saw being used – presidential ballot papers and as such he did not vote. He did not testify that other voters left the polling unit in protest in suit. As for PW2 the 2nd Appellant himself who testified under cross-examination that he did not vote not even for himself because he abhorred what he saw on the ground, the use of presidential improvised ballot papers for State House of Representative election that did not stop electorates voting for him. This is the picture of the voting pattern (see page 14 of the record)
(1) Nanpon T. Bongen (PDP) …7,308 votes
(2) Tanpyen G. George (ANPP) …3,916 votes
(3) Lohtim Lafim (AC) …4,444 votes
(4) Sunday N John (DPP) …6,348 votes
(5) Stephen P. Burromvy (LP) 2 votes
From the above picture the 2nd appellant scored 6348 votes whitest the 4th Respondent score 7,308 votes. DW3 the electoral officer for Langtang North L.G.A. an official of INEC testified that 35, 425 voters were registered and 22,792 cast their votes as above making 64% of the registered voters which is a substantial percentage.
In my view there is no evidence that the registered voters who did not vote did not because they were confused, or are sufficient to have changed the result if they have voted as per the above pattern.
The law is trite the Appellants can only succeed on the strength of his case. See Kodilinye V. Mbanefo Odu 2 WACA 366 at 337; Boni Haruna and 2 Ors. V. Adamu Modibo & 1 Or (2004) 16 NWLR (Pt. 900) 16.
In the circumstances I resolve issue one in favour of the 4th Respondent.
Issue two and three are argued together. They are:-
“2 Whether the rescheduled election into Langtang North constituency that held on the 28/4/07 was held in substantial compliance with the provision of the Electoral Act, 2006.
3 Whether the lower tribunal was right in dismissing the appellants’ petition.
The appellants’ contention in their joint brief of argument on the issues is that the House of Assembly election conducted into the Langtang North constituency seat was conducted in violation of S. 45 (2) of the Electoral Act, 2006. The tribunal held at page 214 of the record as follows:-
“(a) There is evidence that ballot papers were provided for the House of Assembly Election of 28/4/07 and the presidential Election on 21/4/07 each of which was conducted on different dates:
(b) The ballot papers provided were separate in that the same ballot papers were not used for the conduct of two elections on the same date. Note that the April 28th elections were separately held
(c) Colour of the ballot paper was not in issue and no evidence was led in respect of colour.
(d) Serial numbering of bailot papers were not in that averment relating to colour and serialization of numbers of ballot papers is deemed abandoned.” (Underline by counsel)
Counsel submitted that the tribunal’s holding as above that separate ballot papers were used for the Presidential elections and the House of Assembly election held on 21/4/07 and 28/4/07 respectively (see page 214 of the record of proceedings) is unfounded, not supported by evidence. He argued that it is a settled law a Court is obliged to act only on the basis of evidence led before it, as shown in the evidence of (PW1, PW2 and DW1) on record which shows clearly, as crystal, that no evidence was led to show that separate ballot papers were used for the election of 21/4/07 and that of 28/4/07. The contrary was the evidence on record and it is that the Appellants tendered through PW1 documentary evidence (in Exhibits P4 and P5) which are the ballot papers used on 21/4/07 and 28/4/07 respectively which is only the means of colour proving of the ballot papers which established unequivocally that there is no difference between the said Exhibits that is to say the improvised presidential Ballot papers used on 21/4/08 both as to colours and content and those used on 28/4/07. In the face of Exhibits P4 and P5 which are materially the same colour, Counsel submitted the lower tribunal was in grave error, to have proceeded to hold that separate ballot papers were used for the election of 21/4/07 and 28/4/07 is not true. The tribunal is bound by the pleadings and proven evidence, Counsel contended.
Contending further counsel submitted that to determine the effect of this non-compliance, it is necessary to consider the legislative intent in the promulgation of the provision S. 45 (2), that is to say, in the requirement of distinct ballot papers, differentiated by colours, serial numbering and the insertion of only political parties’ logos with candidates contesting the election. It is this understanding that will assist this Court to reach a conclusion, whether this non-compliance affected the election or not.
That the principle behind the provision of Section 45(2) is to achieve fairness; to enable the electorates distinguish one election from the other, to enable a party dissatisfied with the conduct of a particular election to challenge same on the basis of the ballot papers used. One expects the tribunal to make a fair assessment of the conduct of the election and evaluate the case of the parties as presented.
Counsel them submitted that the use of the same set of ballot papers for two different elections gave room for manipulation, particularly as there was no apparent distinguishing features between one and the other. The intendment of the legislature in seeking to distinguish one election from the other by the colours, the numbering of each ballot paper, the representation of only political parties contesting the election with their respective logo can not be cured by S. 146 (1) of the electoral Act, 2006.
In response the 4th Respondent’s leaned counsel Mr Udoh argued as follows:
Firstly he argued that the lower tribunal holding on the combined issues 3 & 4 is impeccable. It is as follows:-
“(d) There is evidence ballot papers were provided for the House of Assembly Election of 28/4/07 and for the presidential Election on 21/4/07 each of which was conducted on different days
(b) The ballot papers provided were separate in that the same ballot papers were not used for the conduct of two elections on the same day. Note that the April 28th Elections were separately held.
(c) Colour of the ballot paper was not in issue and no evidence was led in respect of colour.
(d) Serial numbering of ballot paper was not in evidence. From the above, it obvious that averments relating to colour and serialization of numbers of the ballot papers are deemed abandoned.
Secondly, that the confusion that the Appellants alleged could only have occurred if both election had taken place on the same day. That this was more so in the face of ample evidence that every body was aware that the election scheduled to take place on 28/4/07 with the participation of the Appellants was for the House of Assembly election for Langtang North Constituency seat. Moreover there is evidence that the agents of the 1st Respondent (INEC) had in a bid to improvise the said ballot papers for use on 28/4/07 deleted the phrase “PRESIDENTIAL” and, replace it with phrase “HOUSE OF ASSEMBLY.” This evidence was reiterated by DW1 and DW3 Mr. Y. S. Kundu a Civil Servant under INEC called by the 1st Respondent respectively.
That the suggestion by Appellants’ counsel that the use of the ballot papers gave room for manipulation particularly as there is no distinguishing feature between the two is vague and unfounded. There was evidence that the ballot papers used for 21/4/07 and were stipulated and dated with the respective days of elections. The ballot papers were, further distinguished by the insertion of the phrase “HOUSE OF ASSEMBLY.
Submitting further Mr. Umoh, Esq. argued that moreover 64% of the registered voters participated in the 28/4/07 election.
That from the foregoing therefore the tribunal rightly refused to nullify the election of the 4th Respondent. That this is more so as the non-compliance complained of occurred through no fault of the 4th Respondent. Cites Harriman V. Ideh (EPR Vol. 3 293); NA-Gambo V. INEC (1993) 1 NWLR (Pt. 267) 94 at 106.
Finally that the said election was held in substantial compliance with the electoral Act, moreover the Appellants who have the burden of proof failed to prove that the alleged non-compliance was substantial and it affected the result of the election; the appellants participated in the election and scored votes. That the improvised ballot papers were essentially introduced to ensure that the Appellants participated in the election and ensuring they were not disenfranchised. That the Appellants only grouse being the use of the improvised ballot papers which is technical and basically a matter of form. That 64% of the registered voters he reports which is substantial, voted in the election and the Appellants scored the second highest votes (6,349 votes as against that of the 4th Respondent 7,308 votes).
Finally and more importantly the result of the election was not in any way affected by the alleged non-compliance. That 1st to 3rd Respondent counsel is in agreement with 4th Respondent’s counsel.
Now, assessing the arguments of the learned counsel for the parties for and against the use of the Section 146 to hold that the noncompliance grouse by the Appellants is true but materially did not affect the result of the election of 28/4/07 put on the scale of justice on one side with the contrary view on the other side the former tilts the scale heavily in favour of the 4th Respondent (See Mogaji V. Odofin (1978) 45 SC 94 – 95). In other words the justice is on the side of the 4th Respondent. I like the way the lower tribunal ended their judgment in this matter, thus:
“Such an election, having been an exercise in participatory democracy, should not be jettisoned. In this wise, we are fortified by the wise injunction of the Court of Appeal in the case Imiere V. Salami (1989) 2 NEPR 131 wherein they held that election and Return into a public office is so important to the democration right of franchise that it should not be upset upon a mere fanciful and flimsy ground.”
I will add myself that a strict adherence to technicality of forms of action (which governs us from the grave has long been buried in our judicial jurisprudence in this country). In the circumstance, I resolve issues 2 and 3 considered together herewith in favour of the 4th Respondent.
Flowing from the two resolutions above therefore makes the appeal extremely unmeritorious. It is accordingly dismissed. I make no order as to cost.
Each party to bear their respective costs of this appeal.
Other Citations: (2008)LCN/3064(CA)
