Hon Emeka Stanley & Ors. V. Barr. Uzoma Nkem Abonta & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the judgment of the Abia State Governorship and legislative Houses Election Petition Tribunal sitting at Umuahia, Abia State, delivered on the 26th day of January, 2008 which set aside the return and declaration of the 1st Respondent and declared the 1st Petitioner as the elected candidate for the Ukwa Federal Constituency in the House of Representatives.
It is pertinent to state from the onset that two appeals in respect of a single judgment were filed. The first appeal CA/PH/EPT/157/2008 was filed by Hon. Emeka Stanley as Appellant and Barrister Uzoma Nkem Abonta, Peoples Democratic Party and 99 ors as Respondents. The 2nd appeal. No. CA/PH/EPT/157A/2008, has Hon. Emeka Stanley, INEC and 99 ors as Appellants and Banister Uzoma Nkem Abonta and peoples Democratic Party (PDP) as Respondents/cross Appellants.
The Petitioner, Barrister Uzoma Nkem Abonta filed a petition against the return of the Appellant and at page 24 of the petition claimed as follows:
“(a) That the 1st Respondent was not validly elected by the majority of lawful and valid votes cast at the 28th April 2007 National Assembly Election for Ukwa Federal Constituency.
(b) That the 1st Respondent did not score the majority of the lawful and valid votes cast at the said election.
(c) That 1st Petitioner scored the majority of lawful and valid votes cast at the said election and ought to be duly returned as elected.
(d) That the purported results from Obokwe, Ogwe, Ipu West, Ozaa Ukwu, Ozaa West, Ipu South and Obuzor wards in the Ukwa west Local Government Area be cancelled.
(e) That the purported results from Obokwe, Ogwe, Ipu West, Ozaa Ukwu, Ozaa West, Ipu South and obuzor wards in the Ukwa west Local Government Area be cancelled and a bye election conducted in those areas if the honourable tribunal deems it necessary.
(f) That the 1st Petitioner be declared as elected and returned for the Ukwa Federal constituency in the 28th, April 2007 National Assembly Elections for the Federal House of Representatives.
Pre-hearing sessions were held in which some documents were admitted in evidence by consent. The case proceeded to hearing. The petitioner called 1 witness while the 1st respondent called 12 witnesses. Learned Senior Counsel filed their written addresses as directed by the lower Tribunal. In considered judgment delivered by the lower tribunal on the 26th day of January 2008, the lower Tribunal held thus:
“We have resolved all the issues in this petition and on the whole we are satisfied and we find and held as follows:
- That the 1st petitioner scored a majority of the valid votes cast at the election held on 28/04/07 into the Ukwa Federal constituency.
- The return and declaration of 1st respondent is hereby set aside.
- That 1st petitioner is hereby declared as duly elected and hereby returned as the elected candidate for the Ukwa Federal constituency, in the Federal House of Representatives.”
Dissatisfied with the decision of the lower tribunal, the Appellant approached this court and filed a Notice of Appeal consisting of seven grounds and distilled five issues for determination are as follows:
“Five issues were distilled from the said grounds to wit:
- Whether the learned Judges of the Governorship/Legislative Houses Election Tribunal were not in error when they acted on witness statements (depositions) not cognizable (in the circumstances) in judicial proceedings. (Grounds 3 and 5)
- Whether the learned Judges of the Governorship/Legislative Houses Election Tribunal were not in error when they acted on documentary evidence which were at best ‘hearsay’ and whether such evidence could be the foundation for the reliefs granted to the Petitioners, (claimed and/or not claimed).
(Grounds 2 and 6).
- Whether the witness statements relied upon by the Petitioners were valid and in consonance with the relevant law and Election Tribunal and Court Practice Directions, 2007 having regard to the circumstances, (Ground 1).
- Whether the leave granted the 1st and 2nd Respondents (as Petitioners) to amend the petition was not substantial in the con of the Electoral Act, 2006, Ground 4).
- Whether the judgment is against the weight of evidence. (Grounds 6 and 7)”.
On the 2nd day of June, 2008 when the appeal came before us for hearing, learned Senior Counsel both adopted their briefs of arguments. Learned Senior Counsel for the Appellant Awa U. Kalu, SAN adopted their brief dated 4th day of April 2008 and filed the same date as well as their Appellant’s reply brief dated 5th day of may 2008. Learned Senior Counsel urged us to allow the appeal and sustain the result of the election.
Learned Senior Counsel for the 1st and 2nd Respondents adopted the Respondents’ brief dated 18/04/08 but filed 21/04/08, Cross-Appellants’ brief dated 04/05/08, but filed on 07/05/08 as well as Notice of Preliminary Objection filed on the 26th day of May 2008. Learned Counsel urged us to dismiss the main appeal and allow the Cross-Appeal. On the Notice of Preliminary Objection, learned Counsel argued that no leave was sought to file the interlocutory applications. The preliminary objection should be upheld.
Learned Senior Counsel for the cross-Appellant, Mr. Obianwu, SAN adopted the Cross-Respondents’ brief filed on 25/04/08 and urged the court to dismiss the appeal.
As alluded above, 1st and 2nd respondents filed a Notice of preliminary Objection and I am of the view that it would not be out of place if consideration is given to the same before delving into the appeal filed by the Appellants. In the said Notice, the 1st and 2nd Respondents/Cross Appellants challenged the competence of the appeal under consideration upon the following Grounds:
“(a) That, ground 4 of the purported Notice and Ground of Appeal is incompetent because it is not a ground of law but is at best a ground of mixed law and facts, which require the prior leave of the Tribunal or that of this Honourable court of Appeal before filing same. The said Ground 4 is an appeal against the exercise of the discretion of the Tribunal. An appeal against exercise of the discretion is at best a ground of mixed law and facts. The Order for leave to amend the petition was made by the Tribunal on the 20th day of August, 2007, (see pages 213 – 216 of the record particularly at 215) and an appeal against it must be filed within 14 or 21 days of the Order. It is now over 14 or 21 days between the 20th day of August, 2007 and the 14th February 2008 when the appeal was filed. Therefore, the Court of Appeal cannot extend time within which to appeal in an election petition and so the Ground 4 is grossly incompetent.
(b) That grounds 1, 3 and 5 of the Notice of Appeal are incompetent because they are indirectly questioning the ruling of the tribunal refusing to vacate its order granting leave to amend the petition as well as the Tribunal’s ruling refusing to strike out the petition on the ground of the witnesses’ statement of oath attached to the petition having been made before a Justice of the Peace. There are no appeals by the Appellant against the said rulings refusing to vacate the Order for amendment as well as the ruling refusing to strike out the petition, both of which rulings were made on 22nd day of September 2007 (see pages 399 – 400) and 22nd October 2007. (See pages 463 and 464 of the record).
In a brief settled by K. C. Nwufo, Esq., learned Counsel contended that with regards to Ground A of the Notice of preliminary objection, being an interlocutory ruling of the lower Tribunal based upon the discretion of the said Tribunal the Appellants should have appealed against the decision within fourteen or twenty one days of the date of their delivery as required by law. He relied on the cases of Coker v UBA Plc (1997) 2 SCNJ page 130 at pages 144 – 146 and Amadasun v Ume (2007) 13 NWLR (Pt. 1051) 214 at 235 paras G – H and p. 236 paras A – B
In the case of Coker v UBA Plc (supra) the apex Court held thus:
“The ground of appeal relied upon in this case are based on exercise of the learned Judge’s discretion … This is at best an issue of mixed law and facts … Any Ground of Appeal that raises an issue of mixed law and facts or facts simpliciter can only be competent where the appeal is brought with leave of either the Court below or of this Court, to appeal. And unless such leave has been obtained, no Ground of Appeal of mixed law and facts or facts simpliciter can be added or substituted on the pre that there is an appeal pending.”
In the latter case it was held as follows:
“A judgment or Order remains binding until it is set aside by a competent Court. To hold otherwise is to clot a party against whom a decision has been obtained with the discretion to decide, in his wisdom, that the decision is invalid and not binding on him. This, to my mind, is an invitation to anarchy.”
The question that must be asked and answered is this, can it be said that the ground 4 of the Notice of Appeal filed (supra) questions the exercise of the discretion of the lower tribunal or at best an issue of mixed law and facts? For an answer I reproduce below the ground of appeal in contention and it read thus:
“The learned Judges of the Election Tribunal erred in law when they granted leave to the petitioners/Respondents to amend the petition for the purpose of reducing allegedly pleaded figures in a tabular form.”
A cursory look at the above reproduced ground reveals undoubtedly that same is questioning the discretion of the lower Court and is of mixed law and facts. That being the case, learned counsel is of the view that since the time to appeal against the decision had lapsed, leave of either the lower Tribunal or this court should have been sought and obtained.
For their part, the Appellants’ counsel hold a different view and submitted that the said ground is not only argumentative but also prolix, unnecessarily lengthy, elaborate, vague and contains detailed reasons and can therefore not form the basis of any objection properly concerned. He relied on the case of Agbaje v Younan & 7 ors (1974) 3 ECSLR 66; CBN v Okojie (2002) 8 NWLR (pt. 765) 48 and Khalil v Yar’Adua & ors (2003) 16 NWLR (Pt. 848) 446 at 477 – 479.
Alternatively, learned counsel submitted that the pertinent questions that ought to settle the first ground of the objection are:
“(i) Is there any need for leave to appeal on any ground in an election Petition?
(ii) Is it mandatory that leave of the tribunal and or this Honourable Court must be sought before the interlocutory decision of an election Tribunal can be appealed against?
(iii) Is the said Ground 4 manifestly unsupportable of this appeal?
It is the submission of the learned Counsel that it is settled law that there is no right of appeal against an interlocutory decision in an election petition arising from the Governorship/Legislative Houses Election Petition Tribunal. The Appellant, the learned Counsel further submitted had no right of appeal in the first place and so the question of whether or not leave was required for such an appeal does not arise in this case. This submission is reinforced by the provision of Section 148 of the Electoral Act, 2006. He relied on the case of Amgbare v Sylva (2007) 18 NWLR (pt. 10645) 1 at 9 and Okon v Bob (2004) 1 NWLR (Pt.854) 378 per Galadima, JCA at P. 19 Paras H – B.
Though elections petitions are sui generis, it is now settled that an interlocutory applications are constitutionally guaranteed rights that a Nigeria citizen cannot be deprived of. See the cases of Awuse v Odili (2003) 18 NWLR (851) 116 at 154, H- G, 164, C – H and 169 – 190 E – B and Obuzor v Hon. Wilsom Asinobi, Ake CA/PH/EPT/431/2007 delivered on 120/04/08. In the former case, the apex Court per Tobi, JSC held thus:
On further appeal to the Supreme Court, it was contended that an appeal did not lie from the High court to the court of Appeal against a decision of the High court in an application before the High Court for interlocutory injunction in an election matter. Counsel based his submission on paragraph 27 (1) of schedule 3 to the Local Government Election Decree No. 37 of 1987. The Supreme Court held that there is no right of appeal to the Court of Appeal by virtue of the provisions of paragraph 27 (1) of Schedule 3 of Decree No. 37 of 1987 and that the provisions of section 220 (1) (g) (ii) of the 1979 constitution did not apply to the case vesting jurisdiction in the Court of Appeal to hear appeal from the decision of the High Court in interlocutory matters.
Delivering the leading judgment, Uwais, JSC (as he then was) said at Page 347:
‘Admittedly, looking ordinarily at the wording of paragraph 27 (1) it does not seem to convey the impression that once a ruling is given in an interlocutory matter in an election petition, there is no interlocutory appeal on the ruling. However, the impression becomes discarded once it is realized that an election petition is not the same as the ordinary civil proceedings., it is a special proceedings because of the peculiar nature of elections which, by reason of their importance to the well-being of a democratic society, are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary, of general claims in Court.”
Again, in the case of Anthony Okeke v Petmag Nigeria Ltd (2005) 4 N.W.L.R (pt. 915) 245 at 261 paras F – G, this court held that an appeal against interlocutory decision may be included in the appeal against the final decision of the Court. This would help avoid unnecessary delay in the determination of the main issues joined by in the case. An Appellant who wishes to adopt this procedure may seek leave of the Court.
It is pertinent to state at this point that in the light of the authorities considered (supra), the submission of the learned Counsel to the effect that one cannot file an interlocutory application in an election petition is most incorrect and I so find. The cases relied on by the learned Counsel for the submission is not apposite to the facts and circumstances of the appeal under consideration. The views expressed by the learned Justices in those cases relate to the final decisions of Election Petition Tribunals and not interlocutory decisions.
In the light of the foregoing, I agree with the learned Counsel for the 1st and 2nd Respondents that ground 4 of the grounds appeal being a ground questioning the discretion of the lower Tribunal and also of mixed law and facts is not competent in view of the fact that neither the leave of the lower Tribunal nor of this Court was sought and obtained before same was filed. This being the case, the said ground is accordingly dismissed and issue No. 4 distilled from the said ground a fortiori will not be given any consideration in this appeal.
With regards to ground B, of the preliminary objection learned Counsel submitted that grounds 1, 3 and 5 of the Notice of Appeal are questioning the use of the Petitioner’s witnesses’ statement on oath for which they have sought to have the petition struck out and to also have the order granting leave to amend the petition vacated hut failed.
It is the contention of the learned Counsel that the said rulings were interlocutory decisions which were not appealed against by the Appellants within fourteen or twenty one days of the date of their delivery as required by the law. Learned counsel further contended that having not appealed against those decisions; the Appellant is taken to have accepted the decisions in good faith. The Appellant cannot therefore, wake up from his self-induced slumber to appeal, though out of time without prior leave of this court first sought and obtained, learned counsel further contended. He relied on the cases of Rossek & 2 ors v ACB Ltd & 2 ors (1993) 10 SCNJ p. 20 at 39 – 40 lines 40 – 43 and Amadasun v Ume (2007) 13 NWLR (pt. 1051, page 214 at 232 paras F – H.
Learned Counsel for the Appellants submitted that Elections Tribunal and Court Practice Directions under which the tribunal below conducted the petition, and the fact that election matters or petitions are sui generis, there is warrant for the conclusion draw by the Respondents that there exists an interlocutory appeal, under the present dispensation or that leave of the tribunal or that of this court ought to be sought and obtained before filing an interlocutory appeal out of time. He also referred us to case of Okeke v petmag Nig. Ltd (supra) where Muntuka Coomassie, JCA (as he then was) held thus:
“However, I wish to point out that an appeal against an interlocutory ruling may be included in the appeal against the final decision of the court. This would help to avoid unnecessary delay in the determination of the main issues joined by the parties in the case under consideration. An Appellant who wishes to adopt this procedure may seek the leave of Court, an Appellant who appeals against ruling of the lower court on a wrongful admission or rejection of evidence does not require such leave, as the ruling appealed against is not regarded as introductory decision, the Appellant may therefore include the ground of appeal against ruling of the trial court when appealing against the final judgment of the trial court.” (Underlining supplied for emphasis).
May I say, with due respect to the learned counsel that the decision of this court quoted (supra) is not in support of the position taken by the Appellants. In the said decision, his Lordship did not say that there is no right in interlocutory appeal. Far from it. His Lordship oblivious of how delay is caused by interlocutory applications suggested how same could be avoided by filing an appeal against an interlocutory which may be included in the appeal against the final decision of the Court. This Lordship opined would help to avoid unnecessary delay in the determination of the main issued joined.
It is instructive to point out that I have already held that an interlocutory ruling of a trial Court which is not appealed against within the stipulated period required by law could only be appealed against with either the leave of the lower Court or this Court. A careful look at the particulars in support of grounds 1, 3 and 5 of the Notice of Appeal, makes it clear that what gave rise to those grounds of appeal was the order for the amendment of the petition as well as use of the Petitioners’ witnesses’ statement on oath for which the tribunal refused to strike out the petition on the application of the Appellants.
In the light of the foregoing, I am of the considered view that those grounds mention (supra) Grounds 1, 3 and 5) having not obtained leave to file them, they are incompetent and deprive this Court of the jurisdiction to entertain them. In the case of Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) p. 718 at 743 Nnaemeka-Agu, JSC held thus:
“Leave’ is a condition precedent to the exercise of the right to appeal with leave. It goes, itself, to the question of the jurisdiction of the appellate Court to entertain the appeal. It will be accepted as settled that where this condition, precedent is necessary but, have not been fulfilled there is legally speaking, no appeal.”
I am of the further view in the light of the above decision of the apex Court, that this Court has no jurisdiction to entertain them and consistent with the decision of the apex Court in the case of Onyebuchi v INEC (2004) 4 SCNJ Pt 265 at p. 279, the grounds in contention 1, 3 and 5 and issues 1 and 3 distilled from those grounds are hereby dismissed.
It is pertinent to state that after considering the preliminary objection of the learned Counsel for the 1st and 2nd Respondents the remaining issues now left for my consideration are issues No. 2 and 5. I will proceed to consider them anon in this appeal.
Issue No. 2 is whether the learned Judges of the Governorship/Legislative Houses Election Tribunal were not in error when they acted on documentary evidence which at best ‘hearsay’ and whether such evidence could be the foundation for the reliefs granted to the Petitioners, (claimed/or not claimed) (Grounds 2 and 6).
It is the submission of the learned Counsel that on the authority of Buhari v Obasanjo (2005) 13 NWLR (Pt 941) all the sundry allegations of electoral violence and commission of acts amounting to various species of crime to all intents and purposes where never shown by the Petitioners or their witnesses to have been committed by the Appellant (1st Respondent) or that any one caught in such acts was in fact expressly authorized by him.
There was no such nexus whatever between the alleged act of violence or electoral malpractice and the Appellant. It was therefore wrong for the Tribunal below to have acted on the testimonies of the witnesses called by the Respondents in that regard, learned Counsel further submitted.
Learned Counsel further submitted that throughout the trial, none of the Petitioners’ witnesses owned up to being the maker of the document on which the ratio of the judgment was founded upon. Besides, it is the contention of the Appellants that at best, evidence relied upon by the Tribunal below in reaching the conclusion that the Petitioners proved the existence of fraud can only be regarded as hearsay evidence which ought to be disregarded. He relied on the case of Buhari v Obasanjo (supra).
Learned Counsel for the 1st and 2nd Respondents submitted that the tribunal was right when it acted on the documentary evidence before it and that same was not hearsay. The submission it by the 1st Respondent/Appellant that the only way of proving whether or not there was voting in a particular Ward is by fielding of the Presiding Officers who made the said Forms ECSA (ii), is with respect, untenable in the light of the evidence of the Presiding Officers (PW3, PW4, PW6, PW9 and PW10) who testified to the effect that they were hijacked by the hoodlums on the election day and that no proper election took place. Learned Counsel referred us to pages 489 – 490, 518, 523, 525, 528 – 529 of the record of Appeal and the testimonies of other witnesses (i.e. PW1, PW2, PW5, PW7, PW8 and PW11 on pages 485 – 489, 518, 523, 525 and 530 – 531 of the record.
Learned Counsel contended that the results as admitted are in respect of the Ukwa Federal Constituency Election of April 28th, 2001 and none other. Learned Counsel further contended that they are relevant documents and the tribunal can even suo motu admit them in evidence pursuant to Section 223 of the Evidence Act which provides thus:
“The Courts or any person empowered by law to take evidence may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order, the production of any document of thing: and neither the parties nor their agents shall be entitled to make any objection to any such question or order or, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any question.” (Underling supplied for emphasis)
He also relied on the cases of Anyaegbu v Uzor (1999) 4 NWLR (Pt. 598) 184 at 187 paras F – H; Agbi v Ogbe (2006) 11 NWLR (pt. 990) p. 65 at 125, para H and Chukwuma v. Anyokora (2004) All FWLR (Pt. 302) p. 121 at 145.
A careful reading of the judgment of the lower Court reveals as a fact that some persons who were not Presiding Officers for some units signed results as Presiding Officers contrary to Section 29 of the Electoral Act, 2006, it shows further as a fact that many of the results sheets had the same serial numbers as contained at pages 685 – 691. The Tribunal for example, in Ozaa Ukwu Ward found as follows:
OZAA UKWU WARD EXHIBIT PPA PDP REMARKS
i) Unit 012 T1 280 10 Wrong Presiding Officer
ii) Unit 004 T3 490 1 same serial No.0010479
iii) Unit 011 T8 190 1 same serial No.0010479
iv) Unit 006 T5 212 43 same serial No.0010484
v) Unit 007 T6 279 12 same serial No.0010484
vi) Unit 005 T5 600 60 wrong Presiding Officer
Sub Total 1751 127
IPU SOUTH WARD EXHIBIT PPA PDP REMARKS
Unit 001 Q 184 116 Wrong Presiding Officer
Unit 002 Q1 170 80 No Presiding Officer
Unit 004 Q3 210 139 Wrong Presiding Officer
Sub Total 564 335
OZAA WEST WARD EXHIBIT PPA PDP REMARKS
Unit 001 U 1 465 Wrong Presiding Officer
Unit 003 U2 210 2 No Presiding officer
Unit 003 U3 298 2 Same Serial No. 0010493
Unit 003 Y3 12 298 Same Serial No. 0010493
Unit 007 U6 123 113 Wrong Presiding Officer
Sub Total 634 830
The total tainted votes from each of these wards shall now be deducted from the results as declared by INEC and show in Table 3 of the petition.
Thus in Ipu South Ward, the total of valid votes shall be for PPA, 934 – 564 = 370; for PDP 538 – 335 = 203.
Ozaa Ukwu ward; the total for PPA shall be 1436 – 1751 = 971; for the PDP is 257 – 127 = 130.
In Ozaa west Ward the total PPA shall be 1426 – 634 = 802 and for PDP is 933-880=53.
The total score for the parties in Ukwa West will be as follows:
WARD PPA PDP
Ipu East 756 458
Asa South 80 68
Ipu South 370 203
Ozaa Ukwu 971 130
Ozaa West 902 53
2979 912
Since the results in Obokwe, Ogogwe, Obuzor and Ipu West have been totally cancelled, the result will now be the sum of the votes in Ukwa East Local Government Area plus the untainted votes from Ukwa west; and it is as follows:
L. G. A. PPA PDP
Ukwa West 2979 912
Ukwa East 2263 4412
5242 5324
The question to be asked in be light of the evidence adumbrated above as found by the lower Tribunal is, will it (the Tribunal) close its eyes to these glaring gross irregularities that are in substantial non-compliance with the Electoral Act and insist on seeing a presiding officer before it would believe there was no election or that the purported election, was vitiated by substantial irregularities or will the Tribunal abate the proceedings simply because the presiding Officers who were joined in the petition refused to come and defend themselves? I answer both questions in the negative.
It is noteworthy to observe that the respondents in paragraph 3 the original petition as well as paragraphs 3 of the amended petition, pleaded all the Forms EC8A (ii) for the said election and gave the Appellants Notice to produce them including the omitted results at the hearing of the petition but they failed to do so. (See pages 14 and 240 of the Record). I must agree with the learned Counsel for the 1st and 2nd respondents when he submitted thus:
“The Petitioners were therefore entitled to tender their own duplicate original copies given to their Polling agents by the 2nd set of Appellants pursuant to Section 75 of the Electoral Act, 2006″‘
In the case of Agbi v Ogbe (2006) 11 NWLR (Pt. 990) p. 65 at 125, Paragraph H, it was held that:
“By virtue of Section 149 (d) of the Evidence Act, the Court will presume that any evidence which could be produced and is not produced would, if produced, be unfavourable to the person who withholds it.”
I am of the considered view that the lower Tribunal was entitled to cancel the results before it if found to be vitiated by substantial irregularities showing that there were no elections in those Wards irrespective of the pleadings of the parties as provided by Section 47 of the Electoral Act, 2006. That aside, the Tribunal was also entitled to scrutinize and evaluate the documentary and oral evidence before it and take a decision thereon. See Chukwuma v Anyakora (2004) All FWLR (Pt. 302) p. 121 at 145 paras F – H.
It is appropriate to pause and say that the cases of Buhari v Obasanjo, Ngige v Obi, Kauguma v INEC, Ekpenyong v Nyong and Opia v Ibru cited at paragraphs 5.20, 5.30, 5.40 and 5.50 of the Brief of Argument by the Appellants are not apposite to the facts and circumstances of the case in contention as such they are inapplicable.
In the light of the foregoing, this issue is resolved in favour of the Respondents and against the Appellants’
The last issue for determination is issue No.5 which is whether the judgment of the lower Tribunal is not against the weight of evidence.
Learned Counsel for the Appellants argued that the focus of this issue is a complaint against the totality of the evidence adduced before the lower tribunal. It is not necessarily a complaint against any specific issue rather it concerned with the appraisal and evaluation of the evidence and not the weight to be attached to any particular Piece of evidence in questioning both credibility witnesses and evaluation of evidence of the said witnesses. He relied on the cases of Leyland (Nig) Ltd v Dizengoff (1990) 2 NWLR (Pt. 134) 610; Osolu & Osolu & Ors 14 NSCQR (Pt. 11) 750 at 763 – 764; Wali v. Bafarawa & Ors (2004) 16 NWLR (Pt. 898) 1 at 53 and Egonu v. Egonu (1978) 11-12 SC 111
Learned counsel quoted at a considerable length some portions of the judgment of the lower Tribunal and submitted that upon a close scrutiny of the foregoing excepts of the judgment of the lower Tribunal, it becomes immediately clear that the said tribunal was inclined to act on Exhibits tendered by Counsel for a the petitioners (1st and 2nd Respondents) from the Bar without any referral made to them by witnesses fielded by the 1st and 2nd Respondents.
Learned Counsel contended that the lower tribunal obviously placed reliance on the allegations of electoral malpractices leveled against certain individuals who were neither joined as parties to the petition nor called to testify so as to afford them opportunity of:
“(i) stating on oath that they indeed worked for and on the direction.
(ii) That they indeed conducted themselves in the manner as alleged against them in the petition.”
It is the submission of the learned Counsel that the fact of believing in and acting on mere allegations against people who were not called to speak for themselves has gravely affected the probative value and reliance placed on such evidence by the 1st and 2nd Respondents or their witnesses and the evaluation of the said Exhibits, in the absence of their makers or those who had casual connections with them, cannot support the petition. We were urged to hold that the petition had no evidence with probative value and that this has occasioned a serious miscarriage of justice. We were also urged to resolve this issue in favour of the Appellants
Learned Counsel for the 1st and 2nd Respondents, on the other hand, submitted profoundly that the judgment of the tribunal is not against the weight of evidence. The instances given by the Appellants to show that the judgment is against the weight of evidence, learned Counsel opined that such instances support the judgment indeed.
Let me quickly state from the on set that the lower Tribunal was not in error when it gave weight to the exhibits tendered before it. A closer look at the Exhibits shows that the said exhibits were duplicate original copies of result sheets which were given to the Petitioners’ polling Agents by the official of the 2nd set of Appellants as well as certified true copies of the Result Sheets issued by the Petitioners/1st and 1st and 2nd Respondents by INEC. Needless to say, this is in order.
In the case of Chukwuma v Anyakora (2006) FWLR (Pt. 302) p. 121 at 145, paras E – F, it was held thus:
“‘It is trite law that any candidate that wishes to challenge, the results of an election should produce the official results of the election which was given to him at Polling Stations. See Alaki v Shasho (1999) NWLR (Pt. 595) p. 387 @ 398. By tendering exhibits P13 to P131 which are the results of the election handed over to him by his Collation officers since these results emanated from the officials of the Respondents who conducted the elections and on the face of them they are official documents of the Respondents. From whatever angle one looks at them, they are genuine official results. The fact that DW4 denied ever seeing them does not change the fact that they were produced by INEC officials. Moreso, there has not been produced any cogent and reliable evidence by the Respondents debunking or challenging their genuineness and authenticity. This court is therefore at liberty to rely on these documents by the Appellant/petitioner instead of the documents tendered by the Respondents.” (Underlining supplied for emphasis).
Learned Counsel contended that it is pertinent to note that the 1st Respondent/Appellant did not tender any result to contradict these of the petitioners. The 2nd set of Appellants attached none to their purported reply to this petition; thus confirming that the ones given to the petitioners, which they tendered before the tribunal is correct. It is the contention of the learned Counsel that the case of Leyland Nig. Ltd v Dizegoff, Osolu v Osulu, Wali v Bafarawa and Egonu v Egonu (supra) are in applicable in the circumstance and were urged to discountenance same.
As can be seen from the judgment of the lower Tribunal, the said tribunal did not rely on the evidence of the PW 1 and his written statement on oath, Exhibit “FF’. The lower tribunal even said that the evidence of the 1st Petitioner as PW1 as relates to election in Ipu South Ward was hearsay and could not be relied upon.
Similarly the tribunal did not use the evidence of PW1 in holding that election did not take place in Ipu South Ward but on the substantial irregularities on the results from the said Ward. The evidence of PW6 and PW7 cited by the Appellants in respect of Ozaa Ukwu Ward were reliable. The PW6 was Presiding Officer while the PW7 was Ward Polling Agent for the 2nd Petitioner on the day of the election.
Again, a cursory look at the judgment of the lower Tribunal reveals that the Tribunal never held that the hoodlums who hijacked the Electoral Officers and materials were PPA Agents. Rather it found as fact that there were instances of where persons who were not INEC Ad Hoc Staff (shown in Exhibits “EE” “EE 10” signed Forms ECSA (ii) contrary to the Electoral Act. The said Exhibits “EE” – “EE 10” needless to say are list of INEC Ad Hoc Staff trained and posted for the said election. There was no other list of INEC Ad Hoc Staff before the Tribunal showing the names of those who signed the Forms. In fact, the said Exhibits “EE” “EE10” were certified true copies issued to the Petitioners (1st and 2nd Respondents) by the 2nd set of Appellants.
It is pertinent to note that the tribunal never said it believed that the hoodlums that hijacked the electoral Officers and materials were Agents of the Appellant or the PPA and so the requirement of proving or linking the said hoodlums with the PPA or Appellant did not even arise in the circumstances of the case in contention.
It is instructive to note that though the Appellants submitted that the relief’s claims in the petition are contradictory and that it means that the Petitioners had no reliefs before the Tribunal and were not entitled to be granted any, the Appellants woefully failed to show how the reliefs were purportedly contradictory in nature. The authorities cited by the Appellants’ Counsel are not apposite to the facts and circumstances of the case under consideration.
That aside, in the case of UBA Plc v Mustapha (2004) 1 NWLR (Pt. 555) 443 at 485 paras G -H, it was held as follows:
“So, where a Plaintiff is uncertain whether the facts he relies on, would entitle him to a relief either in addition to a first relief or merely as an alternative he, can, claim the subsequent relief, as further or alternative relief.” Underlining supplied for emphasis).
On the whole, this issue like the previous issues must be resolved in favour of the 1st and 2nd Respondents. A careful reading of the judgment of the lower Tribunal would undoubtedly reveal that the judges of the said tribunal were meticulous in the evaluation of the evidence adduced by both sides and their findings of fact based on the evidence before them cannot be faulted in any way. This issue is accordingly resolved in favour of the 1st and 2nd Respondents.
In the result, in the light of all that I have been saying, this appeal is completely devoid of any merit and it must be and it is hereby dismissed with N50,000.00 costs in favour of the 1st and 2nd Respondents. The return of the 1st Respondent as the duly elected candidate for Ukwa Federal Constituency is hereby affirmed.
CA/PH/EPT/157A
This appeal needless to say is by the 3rd to 100th Respondents at the Governorship/Legislative Houses/National Assembly Election Tribunal in the petition instituted by the 1st and 2nd Respondents challenging the return of the 1st Appellant by the 3rd – 100th Respondents as the winner of the election held on 28th day of April, 2007 for the seat of member representing the Ukwa Federal Constituency, Abia State.
It is pertinent to note from the onset that Independent National Electoral Commission (INEC) and her staff are the Appellants in this appeal. INEC came into being as one of the Federal Executive Bodies contained in the 3rd schedule to the Constitution of Federal Republic of Nigeria and under Section 15 of the said schedule, the commission shall have power to:
“(a) Organize, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State and to the membership of the senate, the House of Representatives and the House of Assembly of each State of the Federation.
Let me leave the Appellants for a moment though I may have cause to revisit them in the course of writing this judgment. Suffice it to say at the risk of being repetitive that the commission and her staff are the Appellant’s.
On the 26th day of January, 2008 The lower Tribunal in a well considered judgment set aside the aside the made by 1st Appellant and her staff pursuant to a petition filed by the Respondent in this appeal. The lower Tribunal held that:
- That the 1st Petitioner scored a majority of the valid votes cast at the election held on 28/04/2007 into Ukwa Federal Constituency.
- The return and declaration of the 1st Respondents is hereby set aside.
- That 1st Petitioner is hereby declared as duly elected and hereby returned as the elected candidate for the Ukwa Federal House of Representatives.”
“Aggrieved with the decision of the lower Tribunal, the Appellants filed an appeal which consists of 8 grounds and distilled there from 7 issues for determination as follows:
“A. Was the tribunal correct to have credited the parties with the votes allegedly omitted in Ukwa East Local Government Area Ground 2.
B. Was the tribunal correct when it held that the 1st and 2nd respondents had established that elections did not take place in four Wards in Ukwa West Local Government Area? – Ground 5.
C. Was the Tribunal correct to have credited the 1st and 2nd respondent with votes from Ipu South, Ozaa Ukwu and Ozaa west ward in Ukwa west Local Government Area? – Ground 8.
D. Were the 3rd – 100th Appellants given a fair hearing by the tribunal? – Ground 7.
E. Was the tribunal correct to have allowed an amendment to the petition and in using the evidence introduced by such amendment in the judgment? – Ground 4.
F. Were the depositions in support of the petition valid? -Ground 5.
G. Is the judgment of the Tribunal consistent with the weight of evidence? – Ground 6.
Learned Counsel for the 1st and 2nd Respondents filed a Notice of Preliminary Objection and in addition to that formulated equally seven issues for determination to wit:
“(a) Was the Tribunal correct to have credited the parties with the votes omitted in Ukwa East Local Government Are? – Ground 2.
(b) Was the tribunal correct then it held that the 1st and 2nd Respondents had established that elections did not take place in 4 Wards in Ukwa West Local Government Area – Ground 5
(c) Was the tribunal correct to have credited the parties (Petitioners and 1st Respondent) with votes from Ipu South, Ozaa Ukwu and Ozaa West Wards in Ukwa West Local Government Area? – Ground 8.
(d) Were the 2nd to 100th Respondents given a fair hearing by the Tribunal? – Ground 7.
(e) Was the Tribunal correct to have allowed an amendment to the petition and if in the affirmative, was any new evidence introduced by such amendment let alone using same in the judgment? – Ground 4.
(f) Were the depositions in support of the petition valid? – Ground 5
(g) Is the judgment of the tribunal consistent with the weight of evidence? – Ground.”
At the hearing of the appeal, on 02/06/08, learned Senior Counsel for the Appellants Mr. O. A. Obianwu adopted his brief dated 02/04/08 but filed on 04/04/08 as well as his Appellants’ reply brief dated and filed on 25/04/08. He urged us to allow the appeal and dismiss the preliminary objection of the 1st and 2nd Respondents fully argued in their brief.(1st and 2nd Respondent).
For his part, learned Counsel for the 1st and 2nd Respondents, Mr. Muoma, and SAN adopted their briefs dated 09/04/08 but filed on 10/04/08. He urged us to uphold his preliminary objection and dismiss the appeal in its entirety.
Learned Senior Counsel Awa U. Kalu, SAN, for the 2nd Respondent did not file any brief but nonetheless urged us to allow the appeal.
The Notice of Preliminary Objection of the 1st and 2nd Respondents is predicated on two grounds and they are as follows:
“(a) The appeal of the 2nd – 100th Appellants is grossly incompetent and an abuse of Court process in that they as the bodies that conducted the said election have no right of appeal, but should remain neutral and independent. They can only defend a petition and responds to an appeal.
(b) That Ground 4 of the purported Notice and Ground of Appeal is incompetent because it is not a ground of law but is at best a ground of mixed law and facts, which require the prior, leave of the Tribunal or that of this Honourable Court of Appeal before filing same. The said Ground 4 is an appeal against the exercise of the discretion of the tribunal. An appeal against the exercise of discretion is at best a ground of mixed law and facts. The Order for leave to amend the petition was made by the Tribunal on the 20th day of August, 2007, (see pages 213 – 216 of the record particularly at 215, and appeal against interlocutory decision must be filed within 14 days of the Order. It is now over 14 days between the 20th day of August, 2007 and the 14th February, 2008 when the appeal was filed. Therefore, the Court of Appeal cannot extend time within which to appeal in an election petition and so the Ground 4 is grossly incompetent.”
The learned Counsel for the Respondents on the 1st ground of preliminary objection submitted that INEC as the Commission that conducted the election in contention should not be seen to have taken sides in an election petition but rather it should remain focused and allow the candidates to battle it out their own way. He referred us to the cases of Dr. Ngige & Ors v Peter Obi & Ors (2006) 14 NWLR (Pt. 999) p. 1 at 224, paras A – E and Haruna v Modibo (2004) 16 NWLR (pt. 900) page 487 at 569 and 573.
For their part, Learned Counsel for the Appellants, Mr. O. A. Obianwu, and SAN holds a contrary view and submitted that the objection is frivolous for the following reasons:
(i) Section 243 (a) of the 1999 Constitution stated that any right of appeal to the Court of Appeal created by the Constitution shall be:
“exercisable in the case of civil proceedings at the instance of a party thereto, or with leave… at the instance of any other person having an interest in the matter.”
Learned senior counsel contended that the Appellants were parties to the case first at the tribunal land their return of the Respondent as the winner of the election was upset by the judgment.
(ii) The Appellants, learned Senior Counsel contended are aggrieved persons because the Tribunal refused them leave to file their reply, thereby shutting them out from calling witnesses and tendering documents on grounds which the Appellants consider to be untenable hence the Appellants in their ground 7 which dovetails into issue D in their brief have raised the issue of the denial of their constitutionally guaranteed right to a fair hearing.
(iii) Such a constitutional point which is fundamental to the jurisdiction of the court can even be raised by the Court suo motu. He relied on the case of-
i. Okoro v The State (1988) 5 NWLR (Pt. 94) 255
ii. Oloba v Akereja (1988) 3 NWLR (Pt. 84) P. 588
iii. Odiasor v Agbo (1972) 1 All NLR (Pt. 1) p. 170
iv. Oloriode v Oyebi (1984) 5 SC p.1
(iv) The case of Ngige (supra) never decided that Appellants, constitutionally guaranteed right of appeal does not exist. The dictum of Omokri, JCA which the 1st and 2nd Respondents have predicated their objection on is not the judgment of the Court and does not even support the contention being made here by the 1st and 2nd Respondent.
(v) The appeal is in the circumstances valid and not an abuse of the process of Court. It is invidious that the 1st and 2nd Respondents, who violently opposed the Appellants request to the file reply and thus be heard in respect of allegation made against them, can turn around to attempt to prevent this Court from examining the bonafide vel non of the approach of the tribunal.
GROUND B
Learned senior counsel is of the view that the contention that ground 4 in the Notice of Appeal is an appeal against the exercise of discretion by the tribunal which leave must be sought is misconceived and should be dismissed. The complaint is against allowing an amendment which was unlawful in the sense that it violated statute law and making use of evidence introduced by such amendment in the judgment.
The ground, learned senior counsel argued is not targeted at the manner in which the discretion was exercised simplicita but goes further to complain of making use of illegal evidence introduced by an amendment to wit; the Electoral Act. Learned Senior further argued that the decision to use illegal evidence introduced by the amendment is part of the main appeal against such fundamental error. He relied on the cases of Okobia v Ajanya (1995) 6 NWLR (Pt 554) p. 348 at p. 360 and Iloabuchi v Ezigbo (2000) 8 NWLR (Pt. 668) P. 197 at p. 218 – 219.
We were urged to overrule the objection and determine the appeal on the merit.
Now, let me begin the consideration of the preliminary objection raised by the 1st and 2nd Respondents by examining the constitutional role INEC is supposed to perform during and after the holding of an election. I have already set out the role assigned to it by the Constitution elsewhere in this judgment but for emphasis let me set it out again albeit not in full: The Commission is empowered to:
“(a) Organize undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;
(b)………
(c)………
(d)………
(e)………
(f)………
(g)……..
(h)……..
(i)………
(Underlining supplied for emphasis).
In the light of the powers of INEC as spelt out in the 1999 Constitution, I now examine the cases of Haruna v Modibo and Ngige v Obi that form the fulcrum of Respondents’ Preliminary Objection.
In the case of Haruna v Modibo, (supra) were three sets of appeals one of which was filed by Independent National Electoral Commission (INEC) and forty-two Others, the category of which included Resident Electoral Commissioner, Returning Officers, Peoples Democratic Party (PDP), a number of Collation and Presiding Officers, a situation not dissimilar to the one at hand in considering the functions of the INEC, this Court per Ogebe, JCA (as he then was) held thus:
“The Independent National Electoral Commission by its statutory existence is an independent body with constitutional powers to conduct elections in Nigeria. The function of the Commission by statutory provision is one of an umpire in the conduct plan election. The body should never place itself in a position where imputations may be made that it supports one party or the other in an election. The officials of the Commission should be neutral and not be partisan in favour of any candidate. No matter the allegations made against it, the Commission should remain fair and focused. It is not expected of the Commission to appeal from election cases but should leave candidates to fight their own battle. It is in the interest of the electoral process that the Commission and its officials should remain as neutral as possible in election cases as its primary responsibility is to conduct free and fair elections regardless of who wins. In the instant case, the appeal filed by the Commission is particularly in denial of and defence to the allegations made by the respondents. But it would have been better for the commission to have exemplified its constitutional role as an unbiased and impartial umpire. (Pp. 569, paras A – C; 573, Paras E – H.).”
In the case of Ngige v Obi (supra) Omokri, JCA in a similar circumstance to the one on hand held as; follows:
“… INEC is an independent body with constitutional powers to conduct elections in Nigeria. The function of the Commission by statutory provision is one of an umpire in the conduct of an election. It should never place itself in a position where imputations may be made that it supports one party or the other in an election. No matter the allegations made against it the Commission should remain fair and focused. More importantly INEC is not expected to appeal from election but should leave candidates to fight their own battle. It is in the interest of the electoral process that INEC and its officials should remain as neutral as possible in election cases as its primary responsibility is to conduct free and fair elections regardless of who wins. INEC should remain as an unbiased and impartial umpire. That is its constitutional role. See Haruna v Modibo (2004) 16 NWLR (Pt. 900) 487 at 569 and 573.”
I pause here to state that the learned Senior Counsel for the Appellants contended that the dictum of the learned Justice supra is not the judgment of the Court. But with due respect to the learned Senior Counsel, if the role of INEC as assigned by the Constitution is to be strictly adhered to, one cannot fault the dictum of his Lordship. INEC as we all know is a public funded institution charged with the task of organizing, undertaking and supervising all elections in the country save that of Local Government Councils. That being the case, INEC is supposed to be an impartial arbiter and unless there is/are compelling reasons to appeal against a decision of an Election Tribunal i.e. indicting her or her staff, I am of the strong view that she should not be at liberty to use the tax payers money to protect and project the interest of a candidate.
After conducting and supervising an election, INEC should allow the candidates whose election she has conducted and supervised to fight their own battle in the Tribunals. That however does not mean that INEC cannot respond to appeals filed by candidates in which she is made a party.
Again, in a more recent case, of Idris v INEC (2008) 8 NWLR (pt. 1088) p. 1 at pages 73 – 75, paras D – H, this court per Omage, JCA held thus:
“Before I consider the issues in the Cross-Appeal, I must express my own view, that it seems most strange to me that INEC would leave the other statutory responsibilities to waste public money to appeal against the decision of the tribunal which founded its decision on the interpretation of the law by a supreme court existing at the time of the decision of the tribunal. A party who appeals is seeking certain reliefs. What relief is INEC seeking by its appeal? It does not seem to me that it was set up to justify or vindicate itself in order to show it is infallible…”
In the light of the foregoing, the preliminary objection predicated on Ground A of incompetency and abuse of court must be and it is hereby upheld.
With regards to Ground B, I wish to point out that I have already held in a sister case, CA/PH/EPT/157/2007 that in as much as a ground of appeal is challenging a discretionary power of a lower Court in which no leave has been sought to file it either in the lower Court or in this Court, that ground of appeal no matter how weighty is incompetent.
Learned Senior Counsel submitted that the complaint is against allowing an amendment which was unlawful. With due respect to the learned Senior Counsel once a decision is made which is not based on jurisdiction and is interlocutory in nature and no appeal had been filed within the stipulated time then leave either of the lower Court or this Court is a condition precedent to filing of an appeal against the said Ruling. The cases cited by the learned Senior Counsel are not apposite to the facts of the case we have on hand and same cannot be called in aid of the Appellants.
In sum, in the light of all that I have said, the preliminary objections raised by the 1st and 2nd Respondents are meritorious and must be and are hereby upheld. The appeal of the 3rd – 100th Appellants must be and it is hereby dismissed accordingly. Parties shall bear their individual cost of prosecuting this appeal.
1ST AND 2ND RESPONDENTS CROSS-APPEAL
The Cross-Appellants, though satisfied with the judgment of the lower tribunal filed a Cross-Appeal on the 16th day of February, 2008 which carries four grounds. The said grounds devoid of their particulars are as follows:
GROUND ONE – ERROR IN LAW.
The learned trial Judges of the Election Petition Tribunal erred in law when the held that the Petitioners could not prove the total failure of elections in Ozaa Ukwu, Ozaa West and Ipu South Wards when the Tribunal found as a fact that many Polling Unit Results in those Wards were fabricated and substantially not in compliance with the Electoral Act, 2006.
GROUND TWO – ERROR IN LAW
The learned trial Judges had they adverted their legal minds to the relevant provisions of the Constitution of the Federal Republic of Nigeria, they would have held otherwise.
GROUND THREE – ERROR IN LAW
The learned trial Judges erred in law when they failed to strike out her 1st Respondent’s reply for failure to comply with paragraph 15 of the First Schedule to the Electoral Act, 2006.
GROUND FOUR – ERROR IN LAW
The learned trial Judges erred in law when they failed to strike out all the written depositions of the 1st Respondent/Appellant’s witnesses who failed to disclose their real names in their written depositions as require by the paragraph, 2 of the Election Tribunal and Court Practice Directions, 2007.”
Learned Counsel for the Cross-Appellants formulated four issues for determination from the said grounds thus:
“(1) Whether the Tribunal was right when it held that the Petitioners/Cross-Appellants could not prove the total failure of elections in Ozaa Ukwu, Ozaa West and Ipu South Wards when the Tribunal found as a fact that many Polling Unit Results in these Wards were not fabricated and substantially not in compliance with the provisions of the Electoral Act, 2006?
(Distilled from Ground One).
(2) Whether the Tribunal was right when it held that it is idle to raise a ground of Objection (i.e. failure of the 1st Respondent/Appellant to resign from PDP) not recognized by the Electoral Act, 2006? (Distilled from Ground Two).
(3) Whether the Tribunal was right when it failed to strike out the 1st Respondent/Appellant’s reply for failure to comply with the provisions of paragraph 15 of the First Schedule to the Electoral Act, 2006? (Distilled from Ground Three).
(4) Whether the tribunal was right when it failed to strike out all the written depositions of the 1st Respondent/Appellant’s witnesses who failed to disclose their real names in their written depositions as required by paragraph 2 of the Election Tribunal and Court Practice Directions, 2007? (Distilled from Ground Four).
Learned Counsel for the Appellant/Cross-Respondent adopted the issues as distilled by the Respondents/Cross Appellants as his issues for determination. However learned Counsel for the 3rd – 100th Respondents after raising a Notice of Preliminary Objection formulated equally four issues for determination to wit:
“A. Whether the Tribunal was right in its conclusion that the Cross-Appellants did not prove total failure of election in Ozaa Ukwu, Ozaa West and Ipu South Wards.
B. Whether the alleged non-resignation of the 1st Cross-Respondent from the Peoples Democratic Party is one of the grounds for impugning a return-under the Electoral Act, 2006.
C. Whether the issue of non-compliance with paragraph 15 of the First Schedule was an issue before the Tribunal?
D. Whether depositions of the 1st Cross-Respondent’s witnesses were valid?
Let me start with the preliminary objection raised by the learned Senior Counsel which can be found at pages 7 to 8 of his brief. He objects on grounds 3 and 4 in the Notice of Cross-Appeal. The grounds of the objection are:
“(i) They do not relate to or arise from the judgment appealed against.
(ii) They were not raised al the trial Court.
(iii) There is no decision by the Tribunal on them.
(iv) No leave has been obtained by the Cross-Appellants.
(v) By reason of (i) – (iv) supra, the grounds are incompetent.
A careful perusal of the said grounds reveals that same are not competent as canvassed by the learned Senior Counsel.
Consequently, the said grounds and issues 3 and 4 distilled there from are accordingly dismissed. We are now left with issues No. 1 and 2 for determination
Issue No. 1 is whether the tribunal was right when it held that the Petitioners/cross-Appellants could not prove the total failure of elections in Ozaa Ukwu, Ozaa West and Ipu south wards when the Tribunal found as a fact that many Polling Unit Results in these Wards were not fabricated and substantially not in compliance with the provisions of the Electoral Act 2006? (Distilled from Ground one).
Learned Counsel submitted that the lower Tribunal erred in law when it held that the Petitioners could not prove the total failure of elections in Ozaa Ukwu , Ozaa west and Ipu South wards when the tribunal found as a fact that Polling Unit Results in these Wards were fabricated and substantially not in compliance with the provisions of the Electoral Act, 2006.
Learned counsel referred to the evidence of P2W and PW5 and submitted that the vices that vitiated the purported elections in the cancelled Units were sufficient to cancel the purported election in the entire three wards. He urged us to answer this issue in the negative and allow the cross-appeal accordingly.
Learned Counsel for the Appellant/Cross Respondent submitted that an election shall not be invalidated by reason of non-compliance with the provisions of the Electoral Act if it appears to the, Election Tribunal or court that the election was conducted substantially in accordance with the principles of the Act. He referred to Sections 145 and 146 of the Electoral Act, 2006 and the case of Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) p. 1
Learned Senior counsel for the 3rd to 100th cross-Respondents’ submitted that the lower Tribunal was right to have held that the Cross-Appellants did not prove total failure of election in Ozaa Ukwu Ozaa West and Ipu south wards.
It is instructive to state at this juncture that I have carefully examined the evidence adduced by the cross-Appellant on this issue and I am of the view that they have not shown that there was a total failure of elections in the affected Wards and the Tribunal was right in my view to have cancelled only the affected units. This issue is therefore resolved against them (Cross-Appellants).
Issue No. 2 is whether the tribunal was right when it held that it is idle to raise a ground of objection (i.e. failure of the 1st Respondent/Appellant to resign from PDP) not recognised by the Electoral Act, 2006. Learned counsel for the cross-Appellant submitted that it was wrong for the Tribunal to have held so. Learned Counsel submitted that if the trial Judges had adverted their legal minds to the relevant provisions of the Constitution, they would have held otherwise.
Learned Counsel submitted that it is settled law that a denial in a statement of defence or reply in a petition must be specific and not general or ambiguous in nature; where it is it amounts to no denial. It behoves the 1st Respondent to prove how he lost his membership of his party and this he has failed to do. He relied on the case of NNPC & Anor v Chief S. O. Sele & 2 Ors (2004) 5 NWLR (Pt. 866) p. 379 at 412 – 413.
Learned Counsel for the Appellant/Cross-Respondent submits that the issue of disqualification as in this case ought to have been dispensed with as a pre-election issue. Thus the Cross-Appellant lacked the locus and the tribunal below the requisite jurisdiction to entertain the issue.
It is the submission of the learned Counsel that as a Court of first instance, the tribunal has no jurisdiction to entertain matter pertaining to disqualification of candidates. He referred to Section 145 (1) (a) of the Electoral Act and the case Lawan v Yama (2004) 9 NWLR (Pt. 877) p. 131 paras. F – H.
Learned Counsel submitted that the tribunal was wrong to hold that the question of failure to resign from a political party was not recognized as a ground for impugning an election under the Electoral Act.
It is instructive to note that the grounds for questioning an election are set out in Section 145 of the Electoral Act, 2006. The factors which disqualify a candidate from contesting into the National Assembly are set out in Section 66 (1) (a) (i) and 2 and 3 of the 1999 Constitution. None of the grounds is failure to resign.
I must agree with the learned Senior Counsel that if the Cross-Appellants insist that the 1st cross-Appellant was a PDP candidate, and then who sponsored the 1st Cross-Appellant. The issue is a red herring. This issue must be and it is resolved against the Cross-Appellants.
In the result with the two remaining issues resolved against the cross-Appellants, this cross-Appeal is completely devoid if any merit and same fails and is dismissed accordingly with N30, 000.00 against the cross-Appellants and in favour of the Cross-Respondents.
Other Citations: (2008)LCN/2889(CA)
