Garba Moh’d Tambari V. Yusuf M. S. Bango & Ors (1999)
LawGlobal-Hub Lead Judgment Report
OMAGE, J.C.A.
This is an appeal against the decision of the Governorship and Legislative Houses Election Tribunal, sitting in Gusau Zamfara State. The decision is on the Zamfara State House of Assembly election which took place on 9th day of January, 1999. At the close of the election, that 1st respondent was declared the winner because he scored 4,438 votes and the petitioner at the lower tribunal scored 4,256 votes. In the petition the petitioner has alleged:
(i) That the election of the 1st respondent was vitiated by corrupt practices.
(ii) That the 1st respondent was not duly elected by majority of lawful votes.
(iii) That the result of the election was substantially affected by serious electoral malpractices bordering on inflation of votes, use of fake ballot papers falsification of result and mutilation of voting materials in some named polling units.
The 1st respondent at the lower tribunal denied the averments of the petitioner and called six witnesses against the nine witnesses called by the petitioner. The 2-4th respondents also called witnesses and denied stoutly the complaints of the petitioner. In its ruling on the case, the tribunal declared the election void in the whole maradun 1 constituency of Zamfara State.
The 1st respondent was not satisfied with the decision and filed an appeal therein, as it transpired the petitioner at the lower tribunal was also dissatisfied with the decision of the lower court and filed a cross appeal. The appellant and the cross appellant filed their briefs separately. Each filed a reply to the brief of other. There is also 1st respondent’s brief to the appellants brief, and reply to cross appellant brief. The cross appellant who was the petitioner at the lower court included in his 1st respondents brief to the appeal, notice of preliminary objection. The 2nd-4th respondent also filed their respondent’s briefs.
In the appellant brief, filed on 23/3/99 following the six grounds of appeal filed on 15th March, 1999, and in compliance with the rules of this court the appellant who was the 1st respondent In the court below, formulated in his appellants brief three issues for determination thus:-
(1) Whether having regard to the combined provisions of section 133
(2) and paragraph 48(1) to schedule 67 of Decree No.3 of 1999.
The trial tribunal was right in entertaining evidence and relying on same to void the election when his presiding officer whose conduct was complained of was not joined as a party to the petition.
(2) Whether in the practical 2 circumstances of the petition the trial tribunal was not wrong in (a) making findings of facts that was no basis for the corrections effected on Exhibits CII and D regard being had to the evidence led before the tribunal vis-a-vis the provisions of paragraphs 30 (3) 36 and 37 to schedule 5 of Decree No.3 of 1999(8). In record its holding that the facts had been sufficiently pleaded having regard to 1st respondents, averment in paragraphs 4 and 5 of his petition.
(3) Whether in the light of the pleadings and on the preponderance of evidence, the tribunal was right in holding that the 1st respondent had discharged the burden of proof on him that non compliance has substantially affected the result of the election and thereby voided the election:?”
In his 1st respondents brief to the appeal field by the cross appellant on 29th March, 1999. The petitioner in the lower court Yusuf M. S. Bango raised preliminary objection on the clerical error in writing the appellant’s name as Tambari and that the names of all the respondents were not adequately stated as written on the petition. The 1st respondent also found error upon which he objected to the date written sic 12/2/99 when the judgment of the court below was delivered; and not 12th February, 1999 as recorded in the brief of argument of the appellant.
Besides the above in the 1st respondents brief upon which comments will be made below the 1st respondent formulated the following issues namely:-
(1) Whether a presiding officer whose conduct was not specifically complained of nor mentioned in the petitioner No. ZAM/OLM/1/99 must be made a party in that petition and whether there is any provision to that effect in Decree No.3 of 1999.
(2) Whether Decree No.3 of 1999 make its mandatory or automatic for a polling result to the cancelled or recounted once a party agent requests so, and whether the reason given to have warranted the changes in figures of votes of parties as on Exhibits C & D was proved by respondent in petition No. ZAM/GLH/1/99 to be genuine and valid.
(3) Whether complain (sic) touching the election malpractices and non compliance at Badiawa polling unit at Maradun 1 constituency in Zamfara was pleaded in 1st respondent (appellant) brief at the lower tribunal.
The 1st respondent to the appeal of Yusuf M.S. Bango. Garba Moh’d Tambari now in this appeal 1st respondent and also across appellant adopted in his 1st respondents brief the issue no 3 for determination formulated by G. M. Tambari to wit:-
Whether in the light of the pleading and on the preponderance of evidence the trial tribunal was right in holding that the 1st respondent.”
has discharged the burden of proof on him that non compliance has substantially affected the result of the election and thereby voided the election?” as the fourth issue adopted for the 1st respondent.
Before I proceed to evaluate the issues formulated by both parties. It is necessary to record that owing to the preliminary objections raised in the 1st respondents brief above the appellant filed through his counsel a motion to amend the notice of appeal dated 8/4/99 which was struck out upon the application of P. M. Lasco of counsel. The effect of the striking out is to nullify and render incompetent the preliminary objection raised in the brief of 1st respondent as the error complained of therein is no more than clerical error, and a pardonable infraction of the rules on the part of the appellant. It does not constitute the processes into a different appeal before the court as stated by 1st respondent still on the appeal under consideration, it is easy to see that issue (1) formulated by the appellant and issue I formulated by the 1st respondent are variation of the same issue viz whether the non joinder of the presiding officer in all the polling units on which grave allegations are made necessary parties to be joined in the proceeding at the lower court in particular whether non joinder of the presiding officer at Gidan Danaiko polling unit. The main ground on which the lower tribunal made its finding is fatal to the petition and whether the non-joinder affects the jurisdiction of the lower tribunal, whether or not there exists in Decree No.3 of 1999 provisions of law which renders the non joinder of such a necessary party decision of the petition and removes jurisdiction from the lower court.
For the reason stated above issue number one in both parties briefs will be taken together, Issues 2, 3, and 4, will be considered below. It is pertinent to record the issues formulated by the cross appellant in his cross appeal filed on 29th March, 1999. It must be borne in mind always in the appeal and cross appeal that the appellant in these presents was the respondent in the court below.
In the cross appeal against the judgment of the lower tribunal the cross appellant filed a ground of appeal and formulated four issues for determination. The issues formulated therein are prolix and unworthy of reproduction here suffice it to say that the appellant in his 1st respondent or reply brief filed on 8/4/99 urged the court to strike out the ground of the cross appeal as being incompetent. The reply to the cross appeal, in my view should be properly designated as reply to cross appeal. In the reply he reiterated in the brief, ground one in the main appeal and raised as a preliminary objection to the cross appeal as follows that the issues raised and canvassed by the cross appellant cannot be looked into by the honourable court as the decision of the trial tribunal was based on incompetent petition.” (2) that it is after the court has assumed jurisdiction perfectly that observance issues raised by the cross appellant in this appeal would be looked into as the trial tribunal embarked on a fruitless exercise, as it lacked jurisdiction to entertain the petition.” I have looked at the four issues formulated on the four grounds of appeal of the cross appellant, the said grounds of cross appeal allege error and misdirection.
In my opinion they remain all form a single ground of cross appeal from which four issues were formulated. The cross appeal introduced issues which were not before the lower court on the findings of the lower tribunal court of law are bound by records before them. The cross appeal is incompetent.
The issues raised in the preliminary objection to it are on the same issues of incompetence of the petition ab initio and the absence of jurisdiction of the lower tribunal to have heard the petition because of non-joinder of necessary parties. The 2-4 respondents also filed brief of argument on 12/4/99. The counsel to 1st respondent to the appeal cross appellant has raised objection in limine to the brief of the 1st – 4th respondents saying it was filed out of time. The counsel could not prove the objection as he was uncertain of the date of service of the appeal, cross appeal and the respondents brief were served on the Ministry of Justice. Gusau for the 2nd and 4th respondents. The said brief of arguments adopted the arguments of the appellant and urged the court to allow the appeal.
I have considered the desirability of taking first issues 2 and 3 raised in the appeal of the appellant. Garba Moh’d Tambari which show clearly that the finding of fact before the lower tribunal was perverse as it is not borne out by the evidence before that tribunal. It is settled law that this court will not generally look into findings of facts in the lower court unless it is a ground of appeal, the appellate court would do so if the conclusion from the recorded facts of the lower court are perverse. See Omorinbola v. Military Governor 12 SCNJ (1995) 9 NWLR (Pt. 418) 201.
However I have deemed it appropriate and right at this stage rather than go into detailed consideration of the issues creating the perversity to consider the issue of jurisdiction raised in the appellants brief. The decision of the lower tribunal which voided the election at mamdun 1 constituency is founded on the allegation made in the testimony of witnesses in Gidan Bamaiko polling unit. Damaga Gamagiwa ward Shiya Yema polling unit Shiyar polling unit on the testimony of P.W.2, 3, 4, in particular P.W. & 5, 6 7, 8 & 9 The witnesses made wanton and damaging allegations against the returning officers who were not and are not joined in the petition before the court below. They are the parties against whom complaints are made and conduct impunged and it is right that they be accorded a right to defend their actions before the tribunal. Our 1979 Constitution demands it, see section 33 thereof, and our common law requires a right affair hearing in “audi alteram partem” hear the other side. I have observed from the record that some of the returning officers though unnamed but whose conduct were attacked, and against whom criminal allegations are made in the petition did testify for the appellant in rebuttal of the allegation made against the conduct of the election in some units. The evidence given in rebuttal for 1st respondent reduced the allegations made by the petitioner’s witness as oath against oath and they nullify on material issues the averments of irregularity, over counting of votes alteration of recorded EC8A forms made by the petitioner to the point that nothing is left of the allegation made by the petitioner. It is for this reason by the way that the finding of the tribunal was perverse as the juridical assessment of evidence should have dismissed the petition. But that is only part of the issue. The returning officers who testified for the respondent/appellant did not go to the tribunal to defend themselves as of right the testified as witnesses for the 1st respondent/appellant. They have been denied their right affair hearing as they were not cited as parties in their right as returning officers against whom complaint is made as required by the Decree which created the lower tribunal.
Section 133(2)of the State Government (Basic Constitutional and Transitional Provisions) Decree 1999, otherwise called “Decree No.3” subscribes and indeed prescribes as follows:-
“The person whose election is complained of is in this Decree referred to as the respondent; but if the petition complained of the conduct of an electoral officer, a presiding officer, and returning officer or any other person who took part in the conduct of an election, the electoral officer, president officer, returning officer or that other person shall for the purpose of this Decree be deemed to be a respondent and shall he joined in the election petition as a necessary party.”
The above quoted provision of the decree was not complied with by the petitioner, and the lower tribunal had no jurisdiction to hear the so called petition.
It was decided in Barry & ors v. Eric & ors (1998) 8 NWLR (Pt.562) at p. 104 that once there is no compliance with the rules prescribed for filing a petition, there is no petition before the court. There was non compliance with the rules as to who is a necessary party in the complaint of the petitioner in the court below, there was no petition, before the lower tribunal and it acted in vain. Its decision is a nullity.
Election petition, as are the tribunal – which adjudicate on it are creations of statutes. Non-compliance with the prescribed rules nullify the petition and or the tribunal’s decision. See Ike v. Ofakaja (1992) 9 NWLR (Pt.263) 42 at 68. In Chief Akin Omoboriowo v. Chief M. Ajasin (1984) 1 SCNLR 108 Obaseki, J .S.C. held that “Non-joinder of a returning officer in the election appeal nullified the petition and the judgment of the lower court.” I am also of the same view, as it is done in flagrant disregard of the rules in Decree No. 3 of 1999. In that event I hereby set aside the judgment of the Governorship and legislative Houses Election Tribunal of Zamfara State delivered on 12th March 1999 and reinstate the decision of the electoral officer. The cross appeal because of the proflix issues formulated thereon is incompetent and it is hereby dismissed. The appeal succeeds and it is allowed. There will be costs of One thousand naira (N1,000) to the appellant.
Other Citations: (1999)LCN/0535(CA)
