Hon. David Iho & Anor. V. Andrew I. Wombo & Ors. (2010)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR DATTI YAHAYA, J.C.A.
On the 21st of April 2007, an election was held into the House of Representatives for Katsina-Ala, Ukum and Logo Federal Constituency. The 1st respondent was sponsored by the 2nd respondent, the All Nigerian Peoples Party, to contest the election. The 1st appellant was sponsored by the 2nd appellant, the Peoples Democratic Party. At conclusion of the election, the 1st appellent was returned as the winner, having scored 273,051 votes. The 1st respondent scored 6,701 votes. Being dissatisfied with the result, the respondents as petitioners, presented a Petition No. BE/EPT/HR/22/2007 before the National Assembly/Governorship and Legislative Houses Election Petition Tribunal holden at Makurdi, on the following grounds:-
i. Your petitioners state that the 1st Respondent was not qualified to contest for the House of Representatives election held on the 21st day of April, 2007 having been indicted for corruption. ii. Your petitioners state that the 1st Respondent was not duly elected by a majority of lawful votes cast at the House of Representative Election for Katsina-Ala,Ukum and Logo Federal Constituency held on the 21st day of April, 2007.
iii. That the election was invalid by reason of noncompliance with the provisions of the Electoral Act, 2006 (as amended) The Manual for Election Officials, 2007 and the Constitution-of the Federal Republic of Nigeria 1999.
iv. That the election was invalid by reason of corrupt practices, malpractices, undue influence, rigging and violence perpetrated by the Respondents.
They prayed for the following:-
(i) A declaration that the 1st Respondent was not qualified to contest for the election of House of Representatives for Katsina-Ala, Ukum and Logo Federal Constituency held on the 21st day of April, 2007.
(ii) A declaration that the 1st Respondent did not score the majority of lawful, votes cast at the House of Representatives Election on the 21st day of April, 2007, due to non-compliance with the provisions of the Electoral Act 2007, (sic). The Manual for Election Officials, 2007 and the Constitution of the Federal Republic of Nigeria, 1999.
(iii) A declaration that the 1st Respondent was not duly or validly returned as elected member for Katsina-Ala, Ukum and Logo Federal Constituency by the 3rd and 4th Respondents as required by the provision of the Electoral Act 2007(sic).
(iv) A declaration that the 1st Petitioner who scored the highest number of valid votes cast at the election, of the House of Representatives for Katsina-Ala, Ukum and Logo Federal Constituency, held on the 21st day of April, 2007 be returned as elected.
IN THE ALTERNATIVE,
(v) An order canceling the House of Representatives election for Katsina-Ala, Ukum and Logo Federal Constituency held on 21st April, 2007.
(vi) An order directing the Independent National Electoral Commission (INEC), 3rd Respondent to conduct fresh election for the House of Representatives for Katsina-Ala, Ukum and Logo Federal Constituency.
The petition proceeded to trial at the end of which a judgment was delivered on the 22/1/2008, nullifying the election of the 1st appellant on the ground that the election was vitiated by non-compliance with the provisions of the Electoral Act 2006, Manual for Election Officials 2007 and the Constitution of the Federal Republic of Nigeria 1999. The Tribunal ordered for a fresh election within 60 days.
As the judgment did not go down well with the appellants, they filed a notice and nine grounds of appeal, which subsequently metamorphosed into ten grounds, after an amendment. They filed an Amended Appellant’s brief of argument on the 24/6/2008 which was deemed filed and served on the 16/12/2008. The 1st and 2nd respondents filed their Amended brief of argument on the 23/12/2008 with leave; The 3rd – 1048th respondents filed their brief of argument on the 31/3/2008. The appellants filed their Amended Reply brief on the 12/1/2009, to answer the 1st and 2nd respondent’s brief of argument on the Preliminary Objection raised to some particulars in support of grounds 1 , 8 and to ground 7. The brief of argument on the Preliminary Objection was ruled on the 15/5/2008, – following their Notice of Preliminary Objection filed on the 28/4/2008. The Preliminary Objection is that:
(a) Most of the particulars to Grounds 1 – 8 of the Appellant’s Grounds of appeal in the Notice of Appeal are incompetent and should be struck out: and
(b) Ground 7 in the Notice of Appeal is incompetent and ought to be struck out.
The Grounds of the Preliminary Objection stated are:
(1) Particular iv to Ground One,
Particulars (i) (iii) and (iv) to Ground Two,
Particulars (i) – (iv) and (vi).- (vii) to Ground Three,
Particulars (i) – (iv) to Ground Four,
Particulars (ii) and (iii) to Ground Five,
Particulars (i) (iv), (v) and (vi) to Ground Six,
Particulars (ii) (iii), (vi) (vii) and (viii) to Ground Seven, and
Particulars (i) – (iii) to Ground Eight of the Appellant’s Grounds of Appeal are argumentative and vague thereby contravening Order 6, Rules 2(3) and 3-of the Court of Appeal Rules 2007.
(2) GROUND Seven is not in any way connected with the judgment of the Lower Tribunal whose judgment contains no decision on the complaint in that ground, thereby contravening Order 6, Rule 3 of the Court of Appeal Rules 2007.
On the issue of whether the named particulars are competent in view of the provisions of Order 6 Rule 2(3), of the Court of Appeal – Rules 2007, counsel for the objector submitted on the authority of BHOJSONS PLC VS. DANIEL KALIO (2006) All FWLR (Pt.312) 2038 at 2061, that grounds of appeal are the pillars supporting an appeal. The grounds of appeal should be clear, precise and devoid of arguments, narratives and repetition. He further cited the cases of JIKAMSHI VS. MATAZU (2004) All FMLR (Pt.230) 1077 at 1086 – 1093; KHALIL VS. YAR’ADUA (2004) All FWLR (Pt. 225) 111 at 137 and ANTHONY VS AYI (2004) All FWLR (Pt. 227) 464 at 471 – 472. He then submitted that all the named particulars complained about are argumentative and contrary to Order 6 Rule 2 (3) of the Court of Appeal Rules 2007.
On his part, counsel for the respondents to the Preliminary Objection, in the Amended Reply brief of the Appellants; submitted that the objections are misconceived which ought to be dismissed, especially as the respondents to the appeal had filed their brief of argument before they filed the Preliminary Objection, thus indicating that they had not been misled at all. He also urged us to discountenance the authorities cited by the objectors because they are on the grounds of appeal; whereas the objections raised were aimed at the particulars of the grounds. He emphasized that as appeals are decided on issues raised from the grounds of appeal and not on the grounds themselves, and since there is no complaint that the issues were not distilled from the grounds, the Objectors are merely being technical when no miscarriage of justice has been occasioned, relying on MILITARY ADMINISTRATOR OF BENUE STATE VS ULEGEDE (2001) FWLR, (Pt.178) 1268 at 1283 1284, AKANBI VS SALAWU (2003) FWLR (Pt.178) 1066 at 1072 – 1073; ODONIGI VS OYELEKE (2001) FWLR (Pt.43) 172 at 185 and GARBA VS KWARA INVESTMENT CO. LTD. (2005) ALL FWLR (Pt. 252) 469 at 476,477 and 483.
I have considered the grounds of appeal with the particulars in support, the objections raised and the submissions of counsel on same. It is only in paragraph 3.02 of the 1st and 2nd Respondent’s brief of argument on the Preliminary Objection, that the particulars were said to be clearly argumentative’. All the other submissions were on the fundamental nature of the grounds of appeal and how they should not be argumentative, narrative, lengthy and repetitive. Copious authorities were cited in this vein. The objection was not based on the ground that the grounds of appeal contravene Order 6 Rule 2 (3) of the Court of Appeal Rules 2007 and as such, the arguments proffered in this vein, are at variance with the complaints and therefore inappropriate. They are discountenanced.
The Objectors have not shown exactly, how argumentative the particulars are. At any rate, not only have the Objectors not been misled in any way since they had filed their Reply to the Appellants’ brief before the objection was filed, but appeals are no longer decided on the basis of grounds of appeal per se, but on the issues identified from the grounds. Any complaint about the form of the particulars of the grounds of appeal; without an attack on the issues identified from the grounds, amounts, to a mere red-herring, a technicality that is inconsequential. Election petitions are in a class of their own and are very important for a democratic form of Government. They ignite a lot of passion understandably and therefore the courts are very careful in the way and manner they handle them in order to avoid crisis or even apathy. One of the most fundamental aspect of generating confidence and sustaining the right and interest of parties to go to court with their grievances and not take matters into their hands, is to hear the Election Petitions on the merit and thus avoid slavish adherence to technicalities. In my view, the Objectors are clinging to technicality, which I am not prepared to support especially as no miscarriage of justice has been occasioned. I therefore hold that the objection is misconceived and it is dismissed.
The second issue raised by the Objectors in their brief of argument, on the Preliminary Objection, is that Ground of Appeal No.7, did not arise from the judgment of the tribunal because it did not feature in the issue identified by the tribunal, and resolved. Reference was made to pages 496 – 517 of the record. In submitting that grounds of appeal must derive from the decision of the court being challenged, a number of decisions were relied upon, which include CSS BOOKSHOPS LTD. VS. REGISTERED TRUSTEES MUSLIM COMMUNITY, RIVERS STATE (2006) ALL FWLR (PT.319) 819 at 851; SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 345; AJAYI VS. ASHIPA (2006) ALL FWLR, (PT.306) 912 at 922; AKWANWANNA & SONS VS. UMUDIKE PROPERTIES LTD. (2006) ALL FWLR (PT. 337) 502 at 511; OSHIMDUN VS. OLABODE (2004) ALL FWLR (PT. 235) 90 at 107 AND NGIGE VS. OBI (2006) ALL FWLR (PT. 330) 1041 at 1104. Counsel therefore urged us to strike out ground 7 of the Appeal along with all the arguments canvassed in its support, having regard to the cases of NGIGE VS OBI (supra) at 1142; ADEDOKUN VS ORUKU (2006) ALL FWLR (PT.308) 1360 AT 1371 AND KOREDE VS. ADEDOKUN (2001) FWLR (PT.65) 421 OR (2001) 15 NWLR (PT.736) 463.
Contrariwise, counsel for the respondents to the Preliminary Objection, argued that since the tribunal had accepted the facts in the petition and the evidence led against persons not joined in the petition and concluded that the petition was vitiated by noncompliance with the provisions, of the Electoral Act, 2006 and nullified the election, then ground 7 of the appeal was properly derived from the decision of the tribunal. Pages 508 – 511; 517 – 518; 1 – 61 and 287 – 290 were referred to. He urged us to dismiss the objection.
Now, the petitioners, who are the Objectors here, had in their petition, made serious and copious allegations of fraud, intimidation, rigging, harassment, votes allocation, snatching of ballot boxes, papers and electoral materials, which are clearly criminal, against parties and non-parties to the petition. There were allegations of non-compliance with the Electoral Act 2006, the Manual for Electoral, officials and the Constitution, which clearly did not allow the perpetration of the dastardly acts alleged. The witnesses to the petitioners made the criminal allegations and non-compliance in their depositions and under cross-examination, pursuant to the pleadings in the petition.
The tribunal on its part; in its judgment, stated at page 517 of the record, that the election was not credible and was vitiated by non-compliance with the Electoral Act, Manual for Election officials and the Constitution. The tribunal had arrived at this conclusion because:
“…taking into consideration the evidence of the parties as prompted by their pleadings and the state of the laws, we have no difficulties whatsoever in our minds in answering poser one(issue one) in the affirmative. That is to say, given the various reasons proffered in the body of the judgment, there was no credible election…’ (Underlining mine).
A dispassionate consideration of the above, along with the rest of the judgment, would reveal that the allegations of the Petitioners in the petition/pleadings, the evidence of the witnesses to the petitioner, as well as the evidence of the petitioner himself, in their desposition accompanying the petition and the evidence elicited under cross-examination, had been believed by the tribunal. That is to say, the tribunal had believed the evidence of the petition and his witnesses, based on the facts pleaded in the petition, and had nullified the election. It is therefore a misnomer, to say as the Objectors have alleged, that the tribunal did not make a finding of fact concerning the allegations of crime. It did so in its judgment, even though it did not make it a specific Issue for determination. It made the findings whilst it was considering the two issues it raised for itself. The Objection is misconceived and is dismissed. Ground 7 has been properly raised as it is related to the finding of the tribuinal in its judgment. The Preliminary Objection raised in its entirety, fails and it is therefore dismissed.
I will now go to the Appeal proper. The Appellants have identified five issues for determination, in their Amended Appellant’s brief of argument They are thus:-
(i) Whether the Tribunal below was right to have assumed jurisdiction and decided several criminal allegations and electoral fraud made against persons who were not parties to the petition and then rely on the findings made thereon to nullify the election of the appellants. (Ground 7 of the amended notice and grounds of appeal).
(ii) Was petition No.BE/EPT/HR/22/2007 competent before the Tribunal below and in the circumstances was the trial Tribunal with jurisdiction to have heard and determined the petition (Grounds 10 of the amended notice and grounds of Appeal)?.
(iii) Whether the Tribunal below was right in its reasoning and conclusion that because the Register of voters tendered before it were not ticked/marked five times, and that because form EC25 was not tendered before it, there was no election on the 21st day of April, 2007, in Katsina-Ala, Ukum and Logo Federal Constituency of Benue State and when it invoked the principle of the law of agency and S.46 of the Electoral Act 2006 amended, to rely on hearsay evidence to nullify the election of the 1st appellant. (Grounds 1, 2 and 5 of the amended notice, and grounds of appeal).
(iv) Was the Tribunal below right when it invoked S.149 (d) of the Evidence Act against the appellants and refused to attach weight to exhibits tendered by the appellant’s through DW 23 and then nullified the election of the 1st appellant as a member of the House of Representatives and in the circumstances, can it be said that the Tribunal below balanced the scale of justice evenly in the consideration and evaluation of the evidence and the case before it?. (Grounds 3, 6. and 9 of the amended notice, and grounds of appeal).
(v) Whether the Tribunal below was right to hold that crime was not directly in issue in the allegation in the petition before it and to have held that the petitioners proved the allegation in the petition as required by law, particularly when it is evident that PW1 – PW16 who testified for the petitioners all have axes to grind with the appellants. (Grounds 4 and 8 of the amended notice and grounds of appeal).
The 1st and 2nd Respondents identified 5 issues for determination, in their Amended, brief of Argument. They are:-
1.Whether there was credible evidence of distribution of electoral materials and accreditation in respect of the election in question, having regard to relevant provisions of the Electoral Act 2006 (as amended) and the Manual for Election officials 2007. (Grounds 1, 2 and 3 of the Appeal).
- Whether the 1st and 2nd respondents (as petitioners) had proved their case to warrant a favourable verdict by the trial Tribunal. (Grounds 4, 5, 6 and 9 of the Appeal.)
- Whether the trial Tribunal ought to have considered the Exhibits admitted through DW 23 (a subpoenaed witness) in the absence of supporting oral evidence and in view of the contumacious conduct of the Independent National Electoral Commission (INEC) in the circumstances (Ground 6 of the Appeal)
- Did the learned Tribunal decide allegations of electoral fraud and criminal malpractices said to have been perpetrated by various individuals, political thugs military and police personnel leaving it to nullify the election and if so, did the Tribunal lack jurisdiction to do? (Ground 7 of the Appeal).
- Whether the filing of the petition without documents tendered rendered the petition incompetent before the trial Tribunal.
As for the 3rd – 104th respondents, the three issues they identified in their brief argument are:
- Whether the learned trial Tribunal was right in her findings, and the conclusions that the Election into Katsina-Ala Logo and Ukum Federal constituency was not credible for non-compliance with provisions of Electoral Act, 2006, Manual for Election officials, 2007 and the Constitution of the Federal Republic of Nigeria, 1999.
- Whether the learned trial Tribunal was right in holding that the petitioners (now 1st and 2nd Respondents) discharged the burden of proof placed in them by law.
- Whether the learned trial Tribunal was right in the evaluation of evidence before it and the conclusions reached.
Having considered all the issues identified by the parties, I am of the view that the issues distilled by the 1st and 2nd appellants are apt and those are the ones that I will adopt in order to resolve the appeal.
ISSUE NO.2
I shall start with issue No. 2 which is as to whether the petition was competent before the Tribunal and if it had the jurisdiction to try same. Learned counsel for the appellants submitted on this, that the petition was incompetent, for breaching paragraph 1 (1) (c) of the Election Tribunal and Court Practice Direction 2007, in that the documents listed by the petitioner, were not front loaded i.e. they were not attached and filed along with the petition, to enable the respondents see them and prepare for the pre-hearing sessions. He argued that the word ‘or’ in between ‘copies’ and “list of every document” in paragraph 1 (1) (c) of the said Practice Direction, is not disjunctive and so the documents must not only be listed, but must be filed along with the petition. He predicated this position on the provision of paragraph 4 (8) of the Practice Direction, which prohibits documents, plan, photograph of model to be received in evidence at the hearing of the petition, unless they had been filed along with the petition. He concluded by submitting that as the petition did not come before the tribunal in accordance with due process, the tribunal had no jurisdiction to hear it. He cited SKENCONSULT (NIG.) LTD VS. UKEY (1981) 1 S.C. 6 at 26; MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 at 594; and A.G. KANO VS. A. G. FEDERATION (2007) ALL FWLR (Pt. 364) 238 at 251-252: He urged us to allow the appeal on this issue.
The 1st and 2nd respondents submitted that it was enough to file a list of the documents to be relied upon, when filing the petition, as paragraph 1(1) (c) of the Practice Direction is clear. INEC VS. INIAMA (2008) 8 NWLR (Pt. 1088) 182 at 199 – 205 and ONI VS. FAYEMI (2008) 8 NWLR (Pt. 1089) 40.0 at 438 – 439 were relied upon. Counsel argued that since the tribunal had the discretion to grant leave to an applicant to tender documents at the hearing, even of such documents had not been filed along with the petition, the failure to file same with the petition, can not be substantial, but procedural which did not occasion a miscarriage of justice. He cited SIEC EKITI STATE VS. NCP (2008) 15 NWLR (Pt.1102) 720 at 743; SALEH VS. MONGUNO (2006) 15 NWLR (Pt.1001) 26 and MAJARI VS. SAMOVRIS (2002) 3 SCNJ 29. He urged us to discountenance the issue. Paragraph 1(1) (c) of the Practice Direction 2007 provides:- All petitions to be presented before the Tribunal or Court shall be accompanied by copies or lists of every document to be relied on at the hearing of the petition.
Clearly therefore, a choice has been provided to a petitioner to either file copies bf the documents along with his petition or to file a list of the documents along with his petition:- INEC VS. INIAMA (supra) and ONI VS. FAYEMI(supra). Any option taken, will suffice. The reference to paragraph 4 (8) of the Practice Direction does not help the appellants. This is because paragraph 4 (8) only deals with the issue of tendering documents during the hearing of the petition and has nothing to do with competence of the petition. Also, the fact that the Tribunal has the power to allow the documents to be tendered in evidence at the hearing of the petition, even if they had not been filed along with the petition, has whittled down the requirement of filing the documents along with the petition. At any rate, since the tribunal had exercised its powers under paragraph 4 (8) of the Practice Direction, no more should be said about it. I am also in tandem with the submissions of counsel for the 1st and 2nd respondents, that the merits of the case was not affected, nor was any miscarriage of justice occasioned by the failure to file copies of the documents along with the petition. Objections as to form, should not be elevated to a level capable of militating against a just determination of the petition. The petition was commenced by the process of the law and the Tribunal had the jurisdiction to entertain it. Issue No 2 is resolved against the appellants.
ISSUE NO.1
The counsel for the appellants submitted in issue No.1, that allegations of elevations fraud and malpractices, which are criminal, form the basis of the petition. The reliefs sought, were also founded upon the criminal allegations which had been made against various individuals, military and police officers, traditional rulers and political thugs, who were not joined as parties to the petition; to enable them defend themselves.
The failure to so join them he argued, robbed the tribunal of the jurisdiction to make findings of facts on the allegations and proceed to grant the reliefs sought. He sought in aid, section 144 (2) of the Electoral Act 2008, section 36 (1) of the 1999 Constitution and the cases of ALAMEYESEIGHA VS. TEIWA (2002) FWLR (pt. 96) 552 at 571; BUHARI VS. OBASANJO (2005) ALL FWLR (Pt.258)1604 at 1746 – 1747; GREEN VS. GREEN (2001) FWLR (pt.76) 795; INEC VS. DR. IZUOGU & ORS (1993) 2 NWLR (Pt.275) 295 and DIVINE IDEAS LTD VS. HAJIYA MERO UMORU (2007) ALL FWLR (Pt.380) 1468 at 1504 .
Counsel argued that the persons who were alleged to have perpetrated the criminal and electoral offences, were necessary parties to the petition, and in the absence of being joined, the tribunal could not have lawfully inquired into the allegations against them. He emphasized he fact that the tribunal had believed the facts alleged in the petition and that was why it -nullified the election. The persons who allegedly perpetrated the criminal acts, and who were not made parties to the petition, were not proved to be the agents of parties, since it has not been shown that their names were submitted to INEC as agents, nor has any nexus being established, between them and the appellants, with the approval and acknowledgement of the appellants- OYEGUN VS. IGBINEDION (1992) NWLR (Pt. 226) 747 at 759; ANAZODO VS. AUDU (1999) 4 NWLR (Pt.600) 530 at 546; BALAMI VS. BWALA (1993) 1 NWLR (Pt. 267) 51 at 68 and AYUA VS. ADASU (1992) 3 NWLR (Pt. 231) 598 at 612. He urged us to resolve the issue in favour of the appellants.
The response of the 1st and 2nd respondents on this issue is to be found in their issue No.4. Therein, counsel submitted the tribunal did not make any findings and did not decide in its judgment, the allegations of electoral fraud and criminal malpractices perpetrated by various individuals, political thugs, military and police personnel. Further, that the decision to nullify the election was not based on these alleged findings of the tribunal. He argued that “the only issue going close to it is alleged intimidation and harassment by the respondents (to the petition) against the voters leading to singling out 1395 unstamped ballot papers selected randomly from various polling units in Katsina-Ala Local Government (pp 508 – 509 of the record) and the holding that the standard of proof was on the balance of probabilities and no more (pg 512 of the record)”. Counsel therefore urged us to discountenance the arguments of the appellants, since the tribunal did not decide on allegation of crime.
The 3rd – 1048th respondents in their brief of argument, as per their issue No.2, attacked the standard of proof the tribunal placed on the respondents. Learned counsel submitted that the facts in support of all the grounds of the petition, were criminal acts of snatching and diversion of electoral materials to unknown and unauthorized places for illegal massive thumb-printing, use of armed military personnel and thugs for these acts, punishable under sections 131, 135, 136, 137 and 138 of the Electoral Act 2006. These criminal acts he submitted, ought to be proved beyond reasonable doubt, citing section 138 (1) of the Evidence Act, BUHARI VS. OBASANJO (2005) 13 NWLR 1 at 295; JIM NWOBODO VS. ONOH & ORS (1984) 1 SCNLR 1 and OMOBORIOWO VS. AJASIN (1984) 1 SCNLR 108. He contended that the tribunal was wrong to hold that the proof was to be on the balance of probabilities. He then submitted that if the criminal allegations are severed from the pleadings, no fact would remain, to sustain the petition even on the balance of probabilities. He referred to A.D. VS. FAYOSE (2005) 10 NWLR (Pt. 932) 151 at 238-239.
That serious and copious allegations of criminal and electoral offences have been made in the petition, is not in doubt. The allegations are contained in the body of the petition and in the witnesses’ statements on oath, against the respondents to the petition (now appellants) and against persons who are not parties to the petition. These include named treasurers of Local Governments, lawyers, former Chairmen of Local Governments, traditional rulers, as well as un-named, persons and organizations, such as PDP political thugs, armed military personnel and the police. The tribunal in its judgment at page 496 of the record distilled two issues for determination to be:-
(i) Given our scenario, was there an election?
if so, why and if not, why not?
(ii) If poser 1 is answered in the affirmative, was the election invalid for non-compliance with Provisions of Electoral Act 2006, Manual for Election Officials 2007 and the Constitution of Federal Republic of Nigeria 1999.
It went on at page 497 to correctly in my view, state the petitioners’ case to be that “elections were never conducted and where conducted same was marred by various irregularities, malpractices and noncompliance with…” (Underlining mine)
However, curiously, it stated at page 498, that it would restrict its findings to a few issues it named to be-
- The legal implication of lack of ticking/marking of voters registers;
- Refusal by INEC to oblige petitioners with form EC 25 despite a subpoena
- Issue of non-compliance with section 29 of the Electoral Act 2006 and
- Other forms of irregularities.
So although the tribunal side-tracked in specifically stating that it would make a finding on the malpractices (the criminal allegations) which it had earlier identified as forming part of the petitioners’ case, it nonetheless went on to make far-reaching findings on, them, when it was resolving the issues it had identified.. In its judgment, at page 517 of the record, the tribunal believed the evidence of the witnesses of the petitioners contained in their witnesses’ statements on oath and also under cross-examination, based on the pleadings in the petition. It stated:
“In the end, taking into consideration the evidence of the parties as prompted by their pleadings and the state of the laws there was no credible election… Regarding poser two (issue 2) the election was not credible for non-compliance with. Provisions of Electoral Act….”.
Since it was the petitioners and their witnesses that gave evidence of on credible election and non-compliance, it is conclusive, that they were the ones who were believed by the tribunal. Because of that belief, the tribunal held that the election was vitiated for non-compliance. When electoral materials are allegedly snatched and taken to unknown and unauthorized places, when ballot boxes are snatched and stuffed, and when votes are falsified and allotted illegally and fraudulently, by means of forgery, these are not only criminal acts, but are also electoral offences and non-compliances with the Electoral Act 2006, Manual for Electoral officials and the Constitution, as none of these was sanctioned, or permitted by these Statutes and the Constitution.
Now, some of those who allegedly perpetrated these criminal acts and non-compliance, are said to be traditional rulers, former Chairmen of Local Governments, undisclosed military personnel and police officers and thugs. Not only are many of them not named and identified, but they were not made parties to the petition. Yet, the tribunal believed the witnesses and their evidence, that such persons had indeed committed those acts, even though they were not given the opportunity to defend themselves. In my view, the alleged perpetrators of the criminal acts and acts of noncompliance were necessary parties to the petition. This is because necessary parties are not only those persons who have interest, but included, are those persons whose presence in a Suit, are necessary, before the question between the existing parties can be properly settled.
In ONWUDINJO VS. DIN OBI (2006) 1 NWLR (Pt. 961) 318 at 336, GALADIMA, J.C.A. in the lead judgment, referred to the case of EGOLUM VS. OBASANJO(1999) 7 NWLR (Pt. 611) 423 and held:-
“The trial tribunal struck out paragraphs 4(iv) (vi) and (4 xi). In those paragraphs, the petitioner made some allegations against some police officers and INEC ad hoc staff that were assigned to polling booths. Neither the police officers nor the INEC ad hoc staff who were alleged to have wrongly altered results, allowed over-voting and illegal thumb-printing of ballot papers were joined as parties to the petition. Paragraphs in an election petition containing allegations against persons that are not made parties, must be struck out. Similarly, when there is evidence in support of such averments, the evidence must be disregarded by the court.”
Allegations of crimes and non-compliance believed against persons who were not made parties to the suit or petition is a gross abuse of fair hearing. This is because fair hearing is not limited to hearing both sides in a case. No. It also involves giving consideration to all material issues in the case BEFORE a court can reach conclusions.
It is a trite principle of law, that where a court is faced with allegations made against persons who are not parties to the case before it, and whose interests are likely going to be affected when it delivers its judgment, powers abound in it, and it behoves it, to make an order, joining them as parties, to enable them to be heard, to defend themselves, and for the court to arrive at a fair decision. See Order 12 Rule 5 (1) of the Federal High Court Rules 2000, applicable to the tribunal in this instance. It states:-
“If it appear to the Court, at or before the hearing of a suit, that all the persons who may be likely to be affected by the result, have not been made parties, the Court may direct that such persons shall be made either plaintiffs or defendants in the Suit, as the case may be.”
See also OLAGUNJU VS YAHAYA (1998) 9 NWLR (Pt. 542) 501 at 513, where it was held that court can and has the power to order the joinder of any person or party to a suit, when the interest of justice demands it. Similarly, in ATTORNEY-GENERAL BENDEL VS ATTORNEY GENERAL OF THE FEDERATION (1981) 10 SC 1, the Attorney-General of the Federation was the only defendant in the Suit initially filed, but the Supreme Court in its wisdom, thought it fit and therefore made an Order joining 18 of State Governments, since their interests were going to be affected in matters of revenue.
Where a court fails to join necessary or interested persons to a Suit, and it goes ahead to determine the case and reach a conclusion, the principles of natural justice would have been violated. In such a scenario, the decision would have to be set aside, even if it was correctly arrived at. This is because the court have always held that the invocation of a wrong or unfair method, can never give birth to a fair result. See IKOMI VS STATE (1986) 3 NWLR (Pt. 28) 340; CHUNGWORM KIM VS THE STATE(1992) 4 NWLR (Pt. 233) 17 and DEDUWA VS OKORODUDU (1976) 9 – 10 S.C 329. In IDAKWO VS EJIGA (2002) 13 NWLR (Pt.783) 156 at 167, the Supreme Court held that:-
“When the proceedings are held to be unfair and the unfairness had tainted the entire proceedings, there would have been a fundamental breach of the principle of procedural equality of the parties, essential to Nigerian system of adjudication. The normal thing to do in such a situation is to set aside the decision.
In the instant appeal, serious allegations of criminal activities leading to non-compliance with the Electoral Act 2006, the Manual for Electoral officials and the Constitution of the Federal Republic of Nigeria 1999, were made against non-parties and parties alike. The non-parties, who were not shown to be officials or agents of INEC, were not heard in their defence at all. There is no way or how, that the tribunal will rightly arrive at a conclusion and determine the petition, without touching on the interest of the non-parties or making comments about the evidence led, pursuant to the allegations averred in the petition. As it is, the belief by the tribunal of the evidence led, amounts to a belief of the allegations made, which led it to conclude that the criminal acts, perpetrated, resulted into noncompliance with the Electoral Act 2006, Manuel for Electoral officials and the Constitution, so vital and substantive, that it voided the entire election. It was thus the procedural blunder and irregularity of not hearing non-parties who were not officials of INEC, that was grossly, substantially and constitutionally unfair, which tainted the entire proceedings before the Tribunal. The non-parties who allegedly perpetrated the criminal acts, have been seriously prejudiced for lack of opportunity to defend themselves, and have been found guilty as it were, without being heard. The record is there for life and they are held to be perpetrators of horrible criminal acts. This is most unfair and heinous. It is unacceptable by any human standard. In BIYU VS IBRAHIM (2006) 8 NWLR (Pt. 981) 1 at 37, it was held by this court that: “A Court as well as a tribunal will not make an order or give judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter. PDP VS. APP (1999) 3 NWLR (Pt.594) 238”. I must draw attention here, that it does not infact matter, whether the standard of proof required to establish the allegations, are beyond reasonable doubt or on a balance of probabilities. The persons who are alleged to have committed the wrongs and who have interest, must be made parties and must be heard in their defence, otherwise the tribunal would lack the competence to make findings against them or make orders that would affect them. They were not officials or agents of INEC and their joinder is necessary-AGAGU VS MIMIKO (2009)7 NWLR (pt. 1140) 342 at 395-396.
The tribunal at page 513 of the record held that because section 46 of the Electoral Act 2006, authorized parties to appoint agents, the acts of the agents will make the parties vicariously liable. This is a wrong misconception of the law in Election matters. It is firmly established, that a candidate cannot be held liable for the acts of others, including his agents especially criminal acts, unless the candidate had authorized or acknowledged the conduct See AYUA VS ADASU supra at 607, FALAE VS OBASANJO (No.2) (1999) 4 NWLR (Pt. 599) 476 at 497-498 and OPIA VS IBRU (1992)3 NWLR (Pt.231) 658 at 708. So even if those alleged criminal acts had been perpetrated, the petitioners had a duty of establishing a nexus between the perpetrators and the appellants, before the appellants could be held accountable or liable. This was not done.
I will now turn my attention to the submissions of counsel for the 1st and 2nd respondents, that “the only issue going close to it is alleged intimidation and harassment by the respondents against the voters and the holding that the standard of proof was on the balance of probabilities and no more.”
“Intimidation and harassment” of voters as found by the tribunal, perpetrated by the respondents, are electoral criminal offences. Interfering with a voter casting his vote at an election, amounts to harassing the voter and intimidating him. This is a criminal electoral offence contrary to the provisions of section 132 (3) (a) of the Electoral, Act 2006, and punishable on conviction, to imprisonment, fine or both. Again, intimidation and harassment of voters at an election, are disorderly conduct of a criminal nature and on conviction, terms of imprisonment or fine, would be meted out-Section 135 of the Electoral Act 2006.
Since intimidation and harassment are criminal acts, and were found by the tribunal to have been committed by the respondents to the petition and others at large, against voters, it was incumbent upon the tribunal to determine exactly, who the perpetrators were, especially when the tribunal had at page 497 of the recorded, identified the petitioners’ case to be “various irregularities, malpractices and non-compliance with Electoral Act 2006 and Manual for Election officials 2007…”. Again, since intimidation and harassment are shown to be criminal acts and offences, the proof has to be beyond reasonable doubt, not on the balance of probabilities as the tribunal held. See section 138 of the Evidence Act and the cases of AJASIN VS OMOBORIOWO (supra); NSIRIM VS. NSIRIM (supra)1,NNACHI VS IBOM (2004)16 NWLR (Pt. 900) 614 at 635 and BUHARI VS OBASANJO (2005) 2 NWLR (Pt. 810) 241. The tribunal had therefore applied the wrong principle of law concerning burden of proof, which was squarely on the petitioners. It placed a lesser burden of proof upon the petitioners and proceeded to act on that wrong principle.
An appellate court will normally not interfere with an erroneous decision of a trial court, unless the decision was perverse, had occasioned miscarriage of justice. See EDEANI NWAVU ORS VS CHIEF OKOYE & ORS. (2008) 12 SCNJ 460 at 479. In the instant appeal, the application of wrong principle of law (the Evidence Act), had made the Tribunal to accept a lower standard of proof, whose quality did not measure up to the mandatory required standard. It reached a conclusion on the basis of the wrong standard of proof, to damnify and condemn persons for criminal offences, without affording them the opportunity of being heard. That has certainly occasioned gross miscarriage of justice and it cannot be allowed to stand. This is the more so, because the tribunal had hot held that even without the proof of the crimes alleged beyond reasonable doubt, the petitioners had succeeded in proving civil allegations amounting to noncompliance-7 OMOBORIOWO VS. AJASIN (supra). In other words, it did not sever the criminal allegations from the civil wrongs, to see if the petitioners had proved non-compliance. Issue No.1 is therefore resolved in favour of the appellants.
In view of this, the whole basis of the trial before the Election Tribunal, had crashed, since the trial was unfair and against the twin pillars of natural justice. Any discussion as to whether the Registers of voters tendered in evidence before the Tribunal, were to be marked twice or five times and whether the in vocation of section 149 (d) of the Evidence Act against the appellants was appropriate or not, would simply be academic. This is because even if they are resolved in favour of the 1st and 2nd Respondents, no value would be added to the judgment of the tribunal. The whole trial was tainted and vitiated by irreparable damage, as it was unnatural, grossly unfair, unjust, and had occasioned miscarriage of justice. I do not therefore find it necessary to go into the other issues raised.
In the premise, this appeal has merit and it succeeds. It is allowed. The decision of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal holden at Makurdi, Benue State, delivered on the 22/1/2008, is hereby set aside. The return of the 1st appellant, Hon. David Iho by the 3rd respondent as a member, House of Representatives, representing Katsina-Ala, Ukum and Logo Federal Constituency, is hereby confirmed.
I make no order as to costs.
Other Citations: (2010)LCN/3531(CA)
