Engr. Sylvester Ugwuoke V. Alex Eze & Ors (1999)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
The Appellant contested the Election for the Igboeze South/Nsukka Federal House of Representatives seat. He did so against the Respondent. The Respondent was declared and returned the winner of the election which took place on 20th February 1999. Appellant felt aggrieved by Respondents return. Appellant accordingly filed a petition against the return at the Election petition Tribunal below.
There, the Respondent filed a preliminary objection praying the tribunal as follows;-
(a) That the proper parties to the petition are not formed and
(b) That the petitioner has not specified his right to present the petition.
The 2nd to 7th Respondents in the trial tribunal neither filed a memorandum of appearance nor reply to the Appellants Petition within the stipulated time. They sought, by a motion on notice dated 22nd of April, 1999 and filed on 23/4/99, for extention of time within which to reply to Appellants petition. When the case came up for trial on 23/4/99 the trial tribunal took the preliminary objection against the petition and in a considered ruling declared the petition incompetent and struck it out. The petitioner felt dissatisfied with the ruling of the tribunal and brought this appeal.
Appellant’s Notice of Appeal contains three grounds hereunder reproduced with their particulars:
Grounds of Appeal:
- The National Assembly Election Tribunal erred in law in holding that the petition of the appellant was defective for not disclosing the right of the petitioner to present the petition when?
Particulars of error
(a) section 78(1) (b) of the National Assembly (Basic Constitutional and Transitional provisions) Decree No. 5 of 1999 (hereinafter referred to as the decree) stipulates that a person who was a candidate at the election in question may present an election petition.
(b) The appellant stated in paragraph 2 of his petition that he was a candidate at the said election.
(c) The first respondent in paragraph 2 of his reply had expressly admitted this averment.
(d) Paragraph 5(7) of Schedule5 to the decree expressly provided the form or precedent (known as TF002 in the sixth schedule) for the presentation of an election petition and further stipulated that the said form or one substantially like it shall be sufficient for the purposes of the said paragraph 5 of schedule 5.
The petitioner followed the said form in presenting his petition.
(e) The said form TP002 contains words showing the right of the petitioner to present the petition in compliance with Section 78(1) of the decree.
(f) The averments in paragraphs 1 – 4 of the petitioner’s petition had been admitted by the first respondent in paragraphs 2 – 4 of his reply thereby requiring no further proof.
- The tribunal erred in law in holding that the petitioner did not sue the necessary parties against whose conduct she complained and that the petition was incompetent on the said ground.
Particulars of error
(a) The tribunal was in serious error in saying that the parties against whom complaints were made in paragraph 7 of the petition were not joined when in fact they were joined as shown on the petition.
(b) The cases relied on by the tribunal for its error did not say that in every case presiding officers must be joined for the petition to be competent.
(c) Section 78(2) of the decree requires presiding officers to be joined as parties only when the petitioner is “complaining against the conduct of the said presiding officers.
(d) The tribunal could not have validly concluded that the mere mention of presiding officers amounted to a complaint against their conduct when no evidence has been led in the petition.
(e) The tribunal glossed over the submission of the 1st respondent’s counsel “that in the case of Chief S.O. Falae v. General O. Obasanjo the decision was that where presiding officers or persons whose act is called into question in the petition and are not joined as parties no evidence shall be led in respect of those alleged acts” when it was bound to follow that statement.
- The tribunal erred in law in holding that the petitioner did not sue the electoral officials in their personal names and as such the petition was incompetent.
Particulars of error
(a) The said electoral officers are created by law and assigned specific statutory functions by the decree.
(b) Paragraph 3(2) to Schedule3 of the decree provides that an electoral officer maybe appointed by name or by reference to an office.
This court sat in respect of this appeal on 3rd May, 1999. I shall reproduce proceedings of that day for reasons which will become Manifest in due course.
Question by the court: Who are these & ors.” in your notice of appeal as well as in your brief.
Mr. Ezugwu answers “I apply to withdraw the words “& ors.” in the notice and Grounds of appeal, motion, and my brief.
Chief Onyia says he has no objection to the objection to withdraw the word “& ors.” Court; Application granted. The words “& ors.” in the proceedings are hereby struck out. The words “resps” wherever it occurs in the proceeding is amended to read “resp.”
Mr. Ezugwu moves his motion dated 28th April, 1999 in which he prays for departure to use the bundle of papers attached as Exh. A in the motion. Says although Exh. A contains the names of 7 parties as resps, his appeal is only against the 1st respondent. Chief Onyia says that he has no objection. Court: order as prayed. The document attached as Exh. A shall be the record for this appeal. The respondent is at liberty to attach any document the desires to attach within two days from today. The resp. shall file and serve brief of argument within 5 days from today. Appeal adjourned for hearing on 10/5/99.
On 10th May, 1999, counsel were heard the two having adopted their briefs of argument. The appellant formulated three issues for determination.
These are:-
(1) Was the tribunal right in law in holding that the Appellant as petitioner did not specify his right to bring the petition as stipulated in the relevant Decree No.5 of 1999?
(2) Was the tribunal correct in law and in fact in neither holding that the petition was vitiated by nor joinder of necessary parties?
(3) Was the tribunal correct in law in holding that the petition was vitiated by failure to sue Electoral officers in their personal names?
The Respondent’s two issues for determination are as follows:-
(1) Whether the appeal is properly before the Court of Appeal in that necessary parties were not formed in the appeal.
(2) Whether the tribunal below correctly stated the law when it held:- “that the petition filed was in breach of provisions of S. 78(1) and or paragraph 48(1) of schedule 5 of Decree NO.5 of 1999.
Before going into the merits and/or demerit: of this appeal, if at all, I feel constrained to consider the import of Respondent’s 1st issue for determination. It is this exercise that informed my reproduction of the proceedings of this court of 3/5/99 earlier on in this judgment.
In this regard it was Mr. Ezugwu’s submission that Respondent’s 1st issue for determination goes to no issue since same is not based on the Appellant notice and grounds of Appeal. He further contended that the issue’s fate remains irredeemable in the absence of Respondent’s notice or a cross appeal by the Respondent.
On his part Chief Onyia contended that the Respondent’s 1st issue is predicated on order 3 Rule 2 of the rules of this court as amended; that Respondent is at liberty to raise the issue at any time since the issue raises the fundamental question of competence of the entire appeal thereby touching on the jurisdiction of the court; that since necessary parties are not before this court, the appeal had became incompetent and same must be struck out.
It is my considered view that respondent’s 1st issue as formulated and canvassed before us has the import of a preliminary objection as to the Appeal before us. Ingeniously and quite consonant with the  calm and calculating sophistry of experienced advocacy, order 3 Rule 2 of the rules of court was brought to bear on the objection so raised. Inspite of Chief Onyia’s submission I remain firm in my view that rather than the rules Respondent relied upon, it is Order 3 Rule 15(1) of the Rule of Court which provides for such a stance. I am unable to agree with him.
I find Mr. Ezugwu’s submissions regarding Respondent’s 1st issue for determination full-proof and unassailable. An issue for determination can only enumerate or arise from the grounds of appeal filed or from Respondents notice and grounds in a cross appeal. Where an issue is not in consequence of such filed grounds it goes to no issue and it must be discountenanced. See ENIMMINGBOVO V. AMAYO (1994) 3 NWLR (Pt. 332) 365 at 367, AJA V. OKORO (1991) 7 NWLR (Pt.202) 260 at 272 – 273; AKINBINU V. OSENI (1992) 1 NWLR (pt. 215) 97.
Let us for the sake of argument say that Respondent’s objection as formulated under his first issue for determination cannot survive. It must be ignored.
The Appellants issue 1 and 2 will, if considered, be adequate to resolve the Appeal.
1st Issue.
Appellant contends that S.78 (1) of Decree 5 of 1999 stipulates persons having a right to bring a petition and that para.5 (1) of Schedule 5 of the same Decree states what an Election Petition shall contain; that Appellant being a candidate in the election he contested has the right to file the election he did, that this fact was admitted by the Respondent in para. 2 – 4 of his reply, a fact he could not have denied at the tribunal. That the trial tribunals reliance on the decision of the Court of Appeal in the case of Chief Egolum V. General Olusegun Obasanjo & Ors NO. CA/A/EPR/13/99 was wrong. The fact of the case is distinguishable from the one before the tribunal; Ezugwu argued that the tribunal was in error when it held that appellant failed to specify his right or the capacity in which he brought the petition. In support of his right submissions Ezugwu referred us to the following cases: AREMU V. INSPECTOR – GENERAL OF POLICE (1965) NMLR 327 and ATANZE V. ATTAH (1999) 3 NWLR (Pt. 596) 647 at 657
Mr. Onyia SAN contended that Appellant had breached S. 78(2) and para. 5(1) (6) of Schedule 4 of the Decree which required him to specify his right. Appellant did not amplify on the capacity which he relied in bringing his petition the barely just repeated S. 78(1) (b) of Decree No. 5 1999.
The fact that Appellant was a candidate at the Election the result of which Appellant as petitioner sought to challenge had been admitted by the Respondent at the lower tribunal when the two joined issue. S. 78(1) (b) clearly gives the Appellant the right to file the petition he filed. Appellant’s stating the fact that he was a candidate at the election was enough specification of his right to sue as required by para. 5(1) of Schedule 5 of the Decree. It was an error on the part of the tribunal to hold that Appellant had fallen in breath of these provisions of the law. I find for Appellant in respect of this 1st issue.
Issue No.2.
It is Appellants contention here that S.78 (2) para. 48(1) of Schedule5 and of Decree 5 1999 provides for joinder of electoral officers who took part in the conduct of the Election and were mentioned in the petition only where there is a complaint against these officers; that the decision of the tribunal does not reflect the intention in the relevant section of the Decree nor is it in keeping with the decisions referred to by the tribunal. Counsel submitted that the decisions in ASABE BASHIR V. BUBA ANDU Appeal No. CA/J170/99 decided on 19th March, 1999 PALAE V. GENERAL OBASANJO & ORS Appeal No. CA/A/EPPR/13/99, and CHUBA EGOLUM V. GENERAL OLUSEGUN OBASANJO & ORS which the tribunal referred to do not support the tribunals conclusion. The decisions all point to the fact that only were there is a complaint against the Electoral Officer that joining him becomes necessary and non joinder of him fatal. Counsel further submits that it is not necessary that such Electoral Officers are joined in that name. Such officers can be joined by reference to those offices as the Appellant did. Counsel argue that para. 1(b) of Schedule 3 which provides that an electoral officer may be appointed by name or by reference to his office supports his case.
The Respondent contends that since the petition of Appellant had alleged falsification of votes in paragraph 7, it was questioning the conduct of the presiding officers and Returning Officers yet not a single presiding officer or Returning Officer was made a party S.78 (2) of the Decree had made this mandatory and failure to comply with same was fatal as lightly found by the tribunal; Counsel cited the cases of PDP V. APP (1999) 3 NWLR (pt. 594) 238; and Chief Ken Nnamani V. Chief Uche Nnaji, ECB Agbachi & 7 Ors CA/E/60/99.
In considering this issue, I must ask:-
(a) Is it mandatory by virtue of s. 78(2) and para. 48(1) of schedule 5 to the Decree to make join officers who conducted an Election the conduct of which his challenged at a tribunal?
(b) Is it mandatory to join such officers by their personal names or is it sufficient to join them by reference to their officers.
(c) what is the effect of non joinder of such officers on the petition to which this lapse relates?
Section 78(2) provides:-
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 or any other person who took part in the conduct of the election the Electoral Officer, presiding Officer or Returning Officer or 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. Paragraph 48(1) of Schedule 5 Provides:-
Where an election petition complains of the conduct of an Electoral Officer, a presiding Officer, Returning Officer or any other official of the commission, he, shall for all purposes be deemed to be a respondent and joined in the election petition all a necessary party but an Electoral Officer, presiding Officer or Returning Officer shall not be at liberty to declare from opposing the petition except with the written consent of the Attorney-General of the state concerned of Attorney-General of the Federation as the case maybe.
Having given the words in these provisions of the law their ordinary and literal meaning; I arrive at the following:
(a) It is mandatory for a petitioner to join as parties to his petition ONLY those officers who took part in the conduct of the election he challenges and on whose conduct he has a complaint.
(b) Failure to join such officers renders the petition incompetent.
(c) It is sufficient to join such officers by reference to their offices since the Decree has created corporal legal personalities by reference to the offices they hold. Omission of their names is not fatal to and will not render a petition incompetent.
Paragraph 1 – 5 of the record of Appeal contains the Appellants petition. It is glaring that he sought to make the following as Respondents:-
- ALEX EZE
- INDEPENDENT NATIONAL ELECTORAL COMMISSION
- MR. UGWU RAPHAEL RETURNING OFFICER- IGBO-EZE SOUTH/NSUKKA FEDERAL CONSTITUENCY.
- THE RESIDENT ELECTORAL COMMISSIONER ENUGU STATE.
- RETURNING OFFICER FOR NSUKKA AND IGBO-EZE SOUTH LOCAL GOVT. AREAS
- RETURNING OFFICER FOR THE FOLLOWING WARDS IN NSUKKA L.G.A.
(i) Alor Uno
(ii) Ejuona/Uwani
(iii) Nru,
(iv) Obino/Ikwoka.
(v) Obukpa
(vi) Agbanere/Unabor
(vii) Eha-Ulo,
(viii) Ihe,
(ix) Nkpunanor,
(x) Ibeku
- PRESIDING OFFICERS FOR THE FOLLOWING POLLING STATIONS IN NSUKKA LGA’S
(i) Otobo Ugene,
(ii) Otobo Onuakachi,
(iii) Ugbene Agu,
(iy) Enugu Ogbene,
(v) CPS Alor Uno.
(vi) CPS Obimo 1,
(vii ) CPS II Obioma
(viii) Udoka P/S Akpotoro
(ix) CHS Umabor,
(x) Otobo Odobido,
(xi) Ndiagu Eden,
(xii) Otobo Ogidi,
(xiii) Amirika
The Appellant/Petitioner might be said to be inelegant and incomprehensive in his enumeration of the said Respondents when under the sixth respondent he lumped all returning officers in respect of some of the wards in Nsukka L.G.A. and under 7th Respondent’s he lumped together presiding officers of some of the polling stations within the same L.G.A. But no more. If this lapse is anything to go by it must be considered a mere irregularity since by it the attainment of the object of the Decree as is set out under the relevant provisions had not been rendered impracticable.
The finding of the trial tribunal that the Appellant did not join the necessary parties to my mind is therefore peverse and must be tampered with. The decision is in conflict with all the exceptions necessitating interference. See (1991) 7 NWLR (Pt. 203) Pt.1 375 and Ebba V. Ogbodo (1984) 1 SCNLR. OKONKWO V. ONOVO (1999) 4 (Pt. 597) 1.10.
I find for the Appellant in respect of this 2nd issue.
On the whole, I find merit in this Appeal. I allow it. The ruling of the trial tribunal is hereby set aside. I award N3, 000 cost.
Other Citations: (1999)LCN/0534(CA)
