Hon. Eric Acho Nwakanma V. Enyinnaya Abaribe & Ors (2008)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The Petitioner now the Appellant and the 1st Respondent both contested election to the seat of a Senator in the National Assembly for the Abia South senatorial District. In the said election that was held on 28/4/2007, the petitioner contested under the platform of Progressive Peoples Alliance (PPA) while the 1st Respondent contested under the platform of the peoples Democratic Party (PDP). After the election the 1st Respondent was declared the winner and thus returned. Aggrieved, the petitioner filed his petition at the Governorship/Legislative Houses Elections Tribunal sitting at Umuahia, Abia State on the following three main grounds:

1. That the 1st Respondent whose election is questioned was at the time of the election on 28th April, 2007, not qualified to contest the said election;
2. That the erection of the 1st Respondent was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act, 2006: and
3. That the 1st Respondent was not elected by a majority of the lawful votes cast at the election.

Upon service of the petition on him, 1st Respondent filed his reply to the petition wherein he denied averments in the petition.

The case of the 1st Respondent vide paragraphs 8-37 of his Reply is that he was qualified to contest and did contest and won the said election by majority of lawful votes cast at the election. He maintained that the election was free and fair and conducted in substantial compliance with the Electoral Act 2006.

The 2nd – 9th Respondents also filed their own Reply in which they essentially denied the allegation of the petitioner; they denied that the election was marred by violence, rather it was free and fair; they denied any corrupt practices as alleged in the petition.

The 10th Respondent admitted receiving reports from his officers in the field that election materials were snatched at gun point in some wards and units and that election never took place in those wards and units.

The petitioner called 10 witnesses while 1st Respondent called 17 witnesses. 3 witnesses testified for the 2nd – 9th Respondents while the 10th Respondent testified for himself.

At the close of evidence, the parties filed written addresses which they adopted. In his address 1st Respondent raised the issue of non-joinder of necessary parties to the petition and concluded that failure to do so have the effect of rendering any paragraph of the petition containing such an allegation against the party not joined incompetent. In his reply, the petitioner drew the attention of the Tribunal to the proviso to section 144(2) of the Electoral Act, 2006 and paragraph 3(v) of the petition which he said had effectively taken care of the contention of the 1st Respondent.

However, the Tribunal in its considered judgment on 23/4/2008 affirmed the declaration and return of the 1st Respondent as duly elected. Petitioner felt aggrieved. He appealed on 7 grounds. Briefs were filed and exchanged by the respective parties.

The appeal was heard on 27/11/2008. Learned Senior Counsel for the Appellant, AWA U. KALU, and SAN, identified appellant’s brief dated and filed on 2/5/2008. His motion to amend the Reply Brief was moved and without opposition granted and deemed filed or, 27/11/2009. He identified three issues for determination of the appeal as follows:

“(i) Whether the tribunal below was not in error when it held that the petitioner failed to show that the 1st Respondent was at the time of the election not qualified to contest the election. (Grounds a, b and c).

(ii) whether the tribunal below was in error when it herd that non-joinder of persons found to be agents of the Independent National Electoral Commission was fatal to the Petition and then struck out those paragraphs not withstanding the proviso to section 144(2) of the Electoral Act, 2006 (Grounds d, e and f).

(iii) Whether the judgment of the Tribunal below is not against the weight of evidence. (Ground g)

Elder C.A.N. Nwokeukwu Esq identified 1st Respondent’s brief of argument filed on 19/5/2008. His motion to amend same was not opposed by any of the counsel for the parties. It was therefore granted and deemed amended. The learned counsel for the 1st Respondent having adopted 1st Respondent’s amended brief, he drew the attention of this court to paragraphs 2.19 page 7 of the said brief. However, in the alternative he raised 3 issues on the following terms:

“(i) Whether the petitioner proved that the 1st Respondent was removed from the office of Deputy Governor of Abia State and if so whether the said removal from office, disqualified the 1st Respondent from contesting the Senate election. (Grounds a, b, c)

(ii) Whether the proviso to section 144(2) of the Electoral Act has the effect of allowing evidence to be given in proof of allegations made in a petition against persons who were not joined as parties to the petition and whether the Tribunal was right to have struck out the offending paragraphs of the petition. (Ground d, e, f)

(iii) whether the judgment of the lower tribunal is against the weight of evidence.” (Ground g).

M.O. ONYEKA Esq identified the brief of argument of the 2nd – 9th Respondents dated 15/5/2008 and fled on 19/5/2008. He adopted same. The 3 issues he distilled are as follows:

“(a) Whether the Tribunal was right when it held that the 1st Respondent was not disqualified to contest the election. (Grounds a, b, and c).

(b) whether the Tribunal was right when it struck out the various paragraphs of the petition for containing complaint against the conduct of specific officials of the 3rd Respondent who were not joined as parties to the Petition. (Grounds d, e, and f).

(c) Whether the judgment is supported by the evidence led before, the Tribunal.” (Ground g).

I hasten to take the preliminary objection raised by the Learned counsel for the 1st Respondent that grounds (d) and (e) in the Notice of Appeal are offensive to tire provisions of Order 6 Rules 2 and 6 of the Court of Appeal Rules, 2007 in that they are bereft of particulars, the nature of the error complained of and therefore vague and in general terms, rendering them incompetent.

He relied on SONGHAI ENERGY SERVICE LTD V. MAERSK (NIG) LTD (2001)7 NWLR (pt.743) page 537 and UBN PLC v. ISHOLA (2001)4 WRN 77; 15 NWLR (pt. 735) page 47. In addition, that ground (d) is also objectionable because it raises a complaint against a decision which the Tribunal never rendered in so far as it alleger; that the Tribunal held that non-joinder was fatal to the petition whereas the decision at page 761 of the record is the exact. Reliance was placed on the cases of ATOYEBI v. GOV. OYO STATE (1994) 5 NWLR (pt. 344) 290 @ 305 and GAMBARI v. ILORI (2002) 14 NWLR (PT.786) page 78.

On the power of this Court under Order 6 Rule 3 of the Court of Appeal Rules 2007 to strike out incompetent grounds of Appeal, reliance was placed on the case of I.C.C. LTD v. GRANVILLE AND SONS LTD (1996) 8 NWLR (pt. 465)187. It is urged that since issue 2 is distilled from the incompetent grounds (d) and (e) in the Appellant’s brief, it ought to be struck out too on the authority of AGBAKA v. AMADI (1995) 11 NWLR (pt. 572).

Ground 1 of the 1st Respondent’s objection is that grounds (d) and (e) of the Appellant’s grounds of appeal are bereft of particulars, the nature and errors complained of and are therefore vague, and that ground (d) does not relate to the actual decision of the Tribunal and the ground is misleading as it misrepresents the true holding of the Tribunal on the point. The court is urged to strike out the grounds. Learned counsel for the Appellant in his appellant’s amended Reply Brief has refuted the objection that the ground does not relate to the actual decision of the Tribunal Ground ‘D’ of the ground of appeal complains thus:

The learned Judges of the Governorship/Legislative Houses Election Tribunal erred in raw when they herd that non- joinder of persons found to be agents of the Independent National Electoral Commission was fatal to the petition, not withstanding the proviso to section 144(2) of the Electoral Act, 2006.”

Order 6 Rule 2 of the Court of Appeal Rules 2007 provides:

“where a ground of appeal alleges misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.”

Three conditions have been abstracted by the Court as follows:

“(i) it requires that the error in law or misdirection that has occurred be clearly stated:

(ii) specify the nature of error in law or misdirection;

(iii) give full and substantial particulars of the alleged error or misdirection.

The provision of this Order is made mandatorily and essential to draw the attention to that part of the decision containing the error or misdirection. In the instant case while ground (d) is not in accordance with the Order 6 Rule 2, I am of the opinion that ground (e) is in accordance with the said Order; for it provides the particulars though quite inelegantly presented. See SONGHA ENERGY SERVICES LTD. v. MAERSK (NIGERIA) LTD. (2001) 17 NWLR (PT. 743) 517 @ 537 – 538. See also FIRST BANK OF NIGERIA v. NJOKU (1995)3 NWLR (PT. 384) 457.

Just as a ground of appeal would be defective for failing to particularize the error in law or misdirection alleged, so also it is defective and even moreso where the particulars are not related to the ground of appeal and hence have no bearing whatsoever on the specific reasoning and finding in the decision. Ground (d) alleges that the Tribunal held that non-joinder was fatal to the petition. I do not think this was the decision of the Tribunal at page 761 of the record. It held:

“This Tribunal’s view is to the effect that the petition will not be rendered void means the whole petition will not be struck out; however the affected paragraphs will be struck out for non-joinder of such officer, as the law remains the same on the need to give the officer against whom an allegation of wrong doing is made during the conduct of an election a chance of (sic) (to) defend himself …”

Consequently while ground (d) is struck out together with the issues raised therefrom, ground (e) is saved for having substantially complied with the provision of Order 6 rule 2 of the Court of Appeal Rules 2007. I cannot strike it out or discountenance the relevant issue raised from the said ground.

Now going back to the issues for determination of this appeal. I am of the view that the three issues identified by the Appellant in his brief of argument which clearly arose from the grounds of appeal subject to my ruling striking out ground (d) above.

The first issue is whether the Tribunal below was not in error when it held that the petitioner failed to show that the 1st Respondent was at the time of the election not qualified to contest the election. It was argued for the Appellant that he (as petitioner) stated the facts of the 1st Respondent’s disqualification in paragraphs 4(iv)(a) – (g), (v), (vi), (vii); 5(2), (3), (4), (5), (6), (7) and (8) of the petition. That in proof of this allegation the Appellant tendered exhibits “C1 – C72” and “J – J1”, Exhibit “C1 – C72” is the “Report of the 7-man Panel Investigation of Misconduct Against the Deputy Speaker” while Exhibit “J – J1” is the “Votes Proceedings for the Abia state House of Assembly dated 13/3/2003. Appellant submitted that these exhibits were tendered to prove the Appellant’s allegation that the 1st Respondent was impeached for misconduct and abuse of office, but the Tribunal failed to give effect to the imports of the exhibits.

Learned counsel for the 1st Respondent has contended, on this issue that the Appellant rather than attack what, in his opinion, is the error in the judgment of the Tribunal, chose to represent his submissions which he made at lower Tribunal and were rejected. That the crux of the decision of the Trial tribunal that the purported impeachment in 2003 was not established because the alleged report of Panel said to have investigated and found the 1st Respondent guilty of misconduct was not produced. It is therefore submitted that the finding was not challenged by way of appeal and it remains final. Learned counsel called in aid the case of SUMONU v. OLADOKUN (1996) 8 NWLR (PT.467)382.

It is submitted that the Appellant having alleged in his petition that 1st Respondent was impeached as a Deputy Governor and this allegation is not admitted the onus is on the Appellant to prove not only that there was an impeachment but that the said impeachment was done in accordance with the provision of section 188(1) – (10) of the 1999 Constitution of Nigeria. It was pointed out that there was no onus on the 1st Respondent to prove that he was not impeached as canvassed by the Appellant. He cited and relied on the cases of REYNOLDS CONST. CO. LTD. v. MR. EDWARD OKIWEJIMINOR (2001) 15 NWLR (PT.735) page 87 @ 98 and ADEKOKE v. ADIBI (1992) 5 NWLR (PT.242) page 410 @ 423. He also contended that he was denied a fair hearing because he was never invited to appear before the panel of Inquiry.

Assuming and without the 1st Respondent conceding that he was impeached and/or removed from office in the manner averred by the Appellant, 1st Respondent submitted that the Tribunal below was right in holding that the impeachment as alleged does not come within the ambit of section 66 (a) – (i) of the constitution of the Federal Republic of Nigeria, 1999. He cited in reliance the case of OKOLI v. UDEN (2008) 10 NWLR (PT. 1095) page 213 @ 277. It is accordingly submitted that since impeachment is not stated to be a ground for disqualification under section 66 (1), it cannot be “smuggled” in through in the guise of “Administrative Panel of Inquiry” set up by the Chief Judge of the State in accordance with section 188 of the Constitution.

It is finally urged that this Court to hold that the issue of non-resignation of the 1st Respondent as Deputy Governor is not relevant to the fact of 1st Respondent’s qualification to contest the election. That the fact of alleged impeachment of the 1st Respondent was not proved in accordance with the law.

The learned counsel for the 2nd-9th Respondents has submitted on this issue that the Tribunal was right when it held that the 1st Respondent was not disqualified to contest the election.

It is pointed out that in paragraph 4.40 of the final written address, the Appellant stated that the law is “he who asserts must prove” and that the onus of proof continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom the judgment will be given if no further evidence is proffered before the Court.” He then concluded that the 1st Respondent failed to prove that he was not impeached but resigned. It is argued by the learned counsel for the 2nd-9th Respondent that it is the Appellant that is asserting that the 1st Respondent was impeached and in consequence became disqualified to contest the election. The onus is therefore on him to prove his allegation. It is accordingly urged on this Court to resolve this issue in favour of the 2nd- 9th Respondents.

The trial Tribunal relied on two main grounds to come to its conclusion that the 1st Respondent was not disqualified to contest the election, as follows:

(a) That the impeachment was trot proved by the Appellant, and

(b) That, even if the impeachment was proved it cannot form the basis for disqualification under section 66(1)(a) – (i) of the Constitution of the Federal Republic of Nigeria 1999.

The Tribunal captured its findings at page 756, lines 4 – 14 of the Records of Appeal in the following passage:

“We have carefully examined the documents as contained in exhibits C1 to C72 and discovered that they all contain documents dated the 14th of February, 2000 especially exhibit C2; in fact all the documents are dated in the year 2000 and not the year 2003. We hold that the purported impeachments have not been proved to the satisfaction of this Tribunal. The exhibits C1 to C72 are supposed to precede exhibits J and J1 but it is not so. The two are contracted in any way. Whereas exhibits C1 to C72 relate to the failed attempt of 2000, exhibits J and J1, headed votes and proceedings of Abia State House of Assembly are for the 2003 impeachment exercise Relied upon by the Petitioner. Without the Panels Report, we are not satisfied that he has proved the impeachment of the 1st Respondent as at 2003.

In the event that this conclusion is wrong, it is our candid view that the impeachment as alleged does not come within the ambit of section 66(1)(a) – (i) of the Constitution of the Federal Republic of Nigeria 1999.”

The reasoning and conclusion of the Tribunal found some support on the following: On the pleadings, the 1st Respondent joined issues with the Appellant on the allegation of impeachment he pleaded at paragraph 9(b) and 9(c) of his Reply at page 199 of the Records that he resigned 7 days before the purported impeachment. He gave evidence at the trial in line with the pleading. See page 564 of the Records.

The Tribunal was right in its portion of the judgment quoted above that the onus is on the Appellant to prove that the 1st Respondent was impeached and not on the 1st Respondent to prove that he was not impeached.

It is trite and elementary principle of law of evidence that he who asserts must prove. In other words, the person who makes an assertion that certain fact exists, has onus to prove it and not otherwise. I shall have cause to come to this point later in the course of this judgment. In his attempt to prove the impeachment of the 1st Respondent, Appellant tendered Exhibit “J and J1″ the Votes and Proceeding for the Abia State House of Assembly dated 14/3/2003” and Exhibits “C1- C72” the “Report of the 7 man Panel Investigating Allegations of Misconduct against the Deputy Governor of Abia State, Chief H. Enyi Abaribe Vol. II submitted to the Speaker” which relate to the three failed attempts of 2000 to impeach the 1st Respondent. The Appellant admits that the Tribunal was perfectly right when it held that the two different sets of documents were not connected. See page 4 of the Appellant’s Brief under “Particulars of Misdirection in respect of ground (b) of the ground of Appeal. The appellant’s quarrel is that the Tribunal was entitled to determine the legal consequences of exhibits ‘J’ and ‘J1’ separate and apart from exhibits C1 to C72 but failed to do so.

The fact is that did the Tribunal fail to determine the legal consequences of Exhibit J and J1 separate and apart from Exhibit C1 – C72? I think it did. The Tribunal position was that since Exhibits C1 – C72 could not be the foundation for and did not relate to Exhibits J and J1 and since no Report of any investigation panel was tendered by the Appellant in respect of Exhibits J and J1 the two exhibits on their own did not establish impeachment considering the pleadings of the Appellant. I therefore agree with the 1st Respondent’s counsel that the complaint of the Appellant in this respect lacks merit. The Tribunal was right in its treatment of exhibits C1 – C72 and J and J1 and in its conclusion that the Appellant did not prove the impeachment.

In furtherance of his contention on this issue of proof of the alleged impeachment, the Appellant has reproduced and adopted in his brief paragraphs 4.20 – 4.91 of his Final Address. In paragraph 4.40 of his final Written Address the Appellant stated that “he who asserts must prove”, and that the onus of proof continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom judgment will be given if no further evidence is proffered before the Court. He then concluded that the 1st Respondent failed to prove that he was not impeached but resigned. But the question here is who is really asserting non-qualification of the 1st Respondent. It is the appellant that the 1st Respondent was impeached in consequence became disqualified to contest the election. The onus is therefore on him to prove his allegation. When the 1st Respondent gave evidence that he resigned as the Deputy Governor before the purported impeachment, the onus then shifted back on the Appellant to prove that he did not resign but was impeached. I agree with the learned counsel for the 2nd – 9th Respondents that, on the pleading and evidence before the Tribunal it was not compulsory for the 1st Respondent to tender a copy of his resignation letter before the Tribunal to prove the resignation. He gave evidence that the letter was submitted to the then Governor of Abia State. This evidence was not controverted by any of the witnesses of the Appellant. In the circumstance the Tribunal had no evidence from the Appellant rebutting the evidence of the 1st Respondent that he resigned and tendered his resignation letter to the Governor. It is pointed out in the second arm of the Appellant’s contention in this issue that the Tribunal wrongly held that even if the impeachment was proved, it cannot form a ground for disqualification of the 1st Respondent to contest the election under section 66(1)(a) – (i) of the Constitution.

This is what the Appellant contended at paragraph 4.90 of his Address reproduced at page 682 of the Record:

“It is apposite to also recall that it was on the basis of the Report of the 7-man panel that the Abia State House of Assembly on the 14th day of March, 2003 impeached or removed the 1st Respondent from office as Deputy Governor of Abia State pursuant to s.188 (9) of the Constitution of the Federal Republic of Nigeria, 1999.”

The Appellant that submitted that the 1st Respondent having Been indicted on allegation in line with s.66(1)(h) of the Constitution and also impeached pursuant to S.188(9) of the 1999 Constitution thereof, he is completely disqualified from contesting the election. The truth of this matter is that the Appellant did not tender any Report of a “7-Man Panel” in respect of the 2003 impeachment. It has earlier been noted that what he tendered as Exhibit C1 – C72 related to the failed attempts of 2000. The Appellant having; realized that the interpretation of s.66 (1)(h) of the Constitution has been settled by the case of ACTION CONGRESS v. INEC (2007) 12 NWLR (PT.1048) 222 he then submitted at paragraph 4.91 of the Address that “the Action congress case will therefore take care of the indictment against 1st Respondent by the relevant Administrative Panel set up by the Abia State Government.” He however submitted that the ACTION CONGRESS v. INEC (supra) does not apply to the proceeding arising from S. 188 of the Constitution. But the basis or foundation of the 1st Respondent’s impeachment was the alleged indictment under section 66(1)(h) of the Constitution. If the decision in Action Congress case took care of the alleged indictment as admitted by the Appellant, then the purported impeachment under section 183(9) of the Constitution is void abnitio as Ex nihilo nihil fit. I have read the case of ABARIBE v. THE SPEAKER ABIA HOUSE OF ASSEMBLY & ANOR (2000) FWLR (PT.9) 1558 cited and relied on by the Appellant. I do not think the case dealt with the issue of disqualification to contest elections on the basis of indictment under section 66 (1)(h) of the Constitution or impeachment under section 188 of same. The issue that arose in that case is the powers of the legislature to conduct impeachment proceedings against the Governor or his deputy and whether the Court has the powers to intervene in impeachment cases. I agree with the learned counsel that ABARIBE’S Case (supra) is no longer good law in respect of whether or not the Court has the jurisdiction to intervene to hear complaints against impeachment proceedings by the Legislature in view of the decisions of the apex Court in ACTION CONGRESS v. INEC (supra); INAKOJU & ORS v. ADELEKE & ORS (2007)4 NWLR (PT.1025) 427; BALONWU v. OBI (2007)5 NWLR (PT.1028) 448; DAPIANLONG & ORS v. DARIYE & ANOR (2007)8 NWLR (PT.1036) 232.

In ACTION CONGRESS v. INEC (supra) @ page 1037 –

1038 the Supreme Court held:

“It was also contended for the Defendant that the ground of disqualification in Section 137(1)(i) is self-executing. I am not impressed by this contention. I think a dispassionate reading of the provision; will reveal that it is not self-executing.

To invoke against any candidate the disqualification therein provided would require an inquiry as to whether the tribunal or administrative panel that made the indictment is of the nature, or kind contemplated by Section 137(1) read together with other relevant provisions of the Constitution in particular Section 36(1), which provides that “in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by court or other tribunal established by law and constituted in such manner as to secure its independence and impartially”.

The apex Court considered the provision of subsection 5 of section 36 on the question of presumption of innocence of an accused person. It held that the denial of the allegations constituting the ground for the person’s disqualifications raises a fundamental dispute or some issue affecting his civil rights and obligations and that the organ of government that has the Constitutional authority to settle and determine the issue is the Court with inherent jurisdiction. In the light of what I have observed and found above, I risk repeating that the petitioner having alleged in his petition that the 1st Respondent was impeached as a Deputy Governor and this allegation is not admitted the onus is on the Petitioner to prove not only that there was an impeachment but that the said impeachment was done in accordance with the provisions of Section 188(1) – (10) of the 1999 Constitution. Section 188(1)-(6) of the said Constitution provides the procedure to be adopted by the State House of Assembly in the impeachment process of a Deputy Governor as in this instant case.

It is the duty of a Petitioner who alleges that the 1st Respondent was impeached, and relies on it as a ground to place before the Tribunal sufficient materials to enable it determine whether or not the procedure prescribed by the Constitution for the removal of a Deputy Governor was complied with. The 1st Respondent in denying the allegation of impeachment made against him averred in paragraph 9(o) of his Reply contended that the panel set out by the State Chief Judge never invited him to appear before it and never gave him opportunity to defend himself arid therefore could not have submitted any report to the Abia State House of Assembly indicting him. By this averment the Petitioner has been challenged to place before the Tribunal the materials that it will rely on and hold that the proceedings were in compliance with the Constitution as follows:

1. That there was a Notice in writing signed by not less than one-third of the members of the House of Assembly presented to the Speaker stating that the1st Respondent was guilty of gross misconduct (section 188(i).
2. That the Speaker within SEVEN DAYS of the receipt of the Notice caused a copy to be sent to the 1st Respondent as Deputy Governor (Section 188(2).
3. That there was a Resolution made within FOURTEEN DAYS of the presentation of the Notice that the 1st Respondent as Deputy Governor be investigated (section 188 (3).
4. That a motion to that effect was passed with votes of not less than two-third majority of members of the House (section 188(4).
5. That the appointment of the Seven Man Panel by the State Chief Judge was made within SEVEN DAYS of the passing of the motion at the request of the Speaker (Section 188(5).
6. That the persons so appointed are of unquestionable integrity, not members of public service, Legislative House or political party (Section 188(6).
7. That the 1st Respondent as Deputy Governor was given the opportunity to defend himself before the panel (Section 188(7).

It is not shown that those steps or procedures were followed. The 1st Respondent was not given fair hearing if at all any impeachment was embarked upon against him. Service of an originating process of Court or Tribunal is fundamental. Failure to give Notice of proceedings to an opposing party where service is required is fatal; it could lead to a nullity of proceeding.

The votes and proceedings of the Abia State House of Assembly tendered in Evidence as Exhibits “J and J1” did not help the matter. Rather than confirm compliance with the mandatory provisions of the 1999 Constitution, it contains a motion by a member of the House of Assembly. It is noted the said Votes and proceedings relate to section 188(9) of the 1999 Constitution. This document said nothing about compliance with mandatory provisions of section 188 (1) – (6) which as indicated above must be strictly complied with before the State Assembly can have the jurisdiction to function and embark on further duty expected of it by section 188(9) of the 1999 Constitution.

The Tribunal was therefore right to hold that the allegation of impeachment was not proved as Exhibits tendered in that regard did not show that the mandatory provisions of section 188(1) – (6) of the 1999 Constitution were complied with.

However, assuming that I am wrong in my foregoing conclusion and that it is deemed established that the 1st Respondent was rightly impeached, or removed from office in the manner averred by the Appellant, then it is my respective view that the Tribunal below was right in holding as it did on page 756 of the Records that the impeachment as alleged does not come within the ambit of section 66(1)(a) – (i) of the Constitution. In the case of OKOLI v. UDEH (2008) 10 NWLR (PT 1095) 213 @ 277, the Court held thus.

“The Judicial Panel of Inquiry set up by the Anambra State Chief Judge under section 188(5) of the Constitution is in the fulfillment of the Constitutional procedure preceding impeachment. The contents of the report have no bearing with section 66(1)(c) or 66(1)(b) of the 1999 Constitution.

Impeachment is not categorized as an offence under our criminal jurisdiction. It will be unconstitutional to treat impeachment per se as a criminal offence or any procedure precedent to same. I agree with the pronouncement of Niki Tobi, JSC in his leading judgment in the case of INAKOJU v. ADELEKE (2007) 4 NWLR (Pt.1025)423 @ page 588 that impeachment is a political weapon which the House of Assembly must use in appropriate cases to remove a Deputy Governor of gross-misconduct. The lower Court erred to have invoked section 66(1)(c) of the 1999 Constitution to disqualify, the cross/appellant from participating in the April Election.”

Therefore the disqualifying factors for National Assembly Aspirants are provided for in the said section 66 of the Constitution. Impeachment is not one of the grounds so that even if the alleged impeachment had been established the Appellant still has failed to show how that affected the 1st Respondent’s eligibility.

Strong reliance has been placed on the American Professor L.H. Tribe’s “American Constitutional Law, 1978 The Foundation Press pp. 211 -218.” In the two Supreme Court cases, namely, NAFIU RABIU v. KANO STATE (1950) 8-11 SC page 130 @ page 151 and UYANNE v. ASIIU (1975) 4 SC, the apex court made it clear that it is improper to refer or cite foreign authorities to construe our legislations which are unique to this country, Nigeria and promulgated to meet situation not comparable to any in a foreign country. I agree with the learned counsel for the Respondents that the Appellant not having shown the similarities between the Constitution or Statute construed by the said Professor L.H. Tribe in order to convince the court to consider his views, it follows on the strength of the above authorities that this Court cannot be persuaded by irrelevant foreign views, having regard to our constitution and circumstances. Prof. L.H. Tribe as can be deducted was obviously not discussing section 188(1) – (10) of the 1999 constitution. The Appellant made no effort to show that the Constitution discussed by Prof. L.H. Tribe has the equivalent of section 188 of the Nigerian Constitution 1999. I agree that his opinion in this regard is of no moment in this Appeal and should be disregarded.

In the light of foregoing, I hold that the issue of non-resignation, if and of 1st Respondent as Deputy Governor is not relevant to the fact of 1st Respondent’s qualification to contest election. Also the fact of the alleged impeachment of the 1st Respondent was not proved in accordance with tire law. Even if it was proved, which is not the case here, the mere impeachment to my mind, without conviction by a court or Tribunal established by the Law, is not sufficient to disqualify the 1st Respondent from contesting. The first issue is therefore resolved in favour of the 1st Respondent.

ISSUE NO. 2

Appellant’s issue No. (ii) for determination is whether the Tribunal below was in error when it held that non-joinder of persons found to be agents of the Independent National Electoral Commission was fatal to the petition, notwithstanding the proviso to section 144(2) of the Electoral Act, 2006.

On this issue, learned counsel for the Appellant submitted that the Tribunal below suffered a total misapprehension and misapplication of the law governing joinder of parties vis-a-vis the proviso to s.144(2) of the Act. It is pointed out that what probably beclouded the reasoning of the Tribunal was the provision of the previous Electoral Acts under which the said Tribunal relied for its judgment, namely, the cases of OMOBORIOWO v. AJASIN (1994)1 SC 206; EGOLUM v. OBASANJO (1999)7 NWLR. (PT. 611) 355; AWUSE v. ODILI (2005)16 NWLR (PT. 952) 416 and NGIGE v. OBI (2006) 14 NWLR (PT. 999)1. It is contended that the proviso to the 2006 Act effectively removed the controversy that surrounded the non-joinder of certain officers of the Independent National Electoral Commission in some of the petitions tried under the Electoral Act, 2002. It is submitted that a literal construction of the present Electoral Act 2006 will yield the conclusion that once INEC is made a Respondent and the affected officers are shown to have acted as agents of the Commission, as the Appellant did, the issue of non-joinder ought not to arise. It is pointed out that the judgment in the instant petition suggests that the proviso to section 144(2) is unreasonable. It is argued that what renders the Tribunal’s decision in issue curious is the fact the learned trial Judges of the Tribunal had cause in previous decisions to hold that section 144(2) of the Electoral Act 2006 was sufficient to render a petition competent even if the electoral officers against whom allegations have been made are not joined as parties to the petition as they did in CHIEF UZODINMA OKPARA 2 ORS. v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS Petition No. ABS/GOV/EPT/12/2007 (Unreported) dated 11th January, 2008. In sum, the learned counsel submitted that Tribunal misdirected itself in law when it went ahead co strike out paragraphs 10, 15, 21, 26 to 34 of the petition, thereby rendering the same prostrate.

It is contended therefore as follows that:

(i) The Appellant made INEC a party (the 3rd Respondent thereof) to the petition;

(ii) The Appellant showed in paragraph 3(v) of the petition that the said officials whose conduct were complained of acted as agents of the commission; and

(iii) The Appellant by virtue of paragraphs (i) and (ii) have complied with the provision of section 144(2) of the Electoral Act 2006.

It is finally submitted that the interpretation of section 144(2) of the Act to warrant the Tribunal striking out the paragraphs was not called for because the Tribunal made the non-joinder an issue to void the petition and this has occasioned a miscarriage of justice.

On this issue learned counsel for the 1st Respondent has contended that the manner Appellant has nominated this issue for determination does not show an appreciation of the decision of the Trial Tribunal. In other words that the proviso on which the issue is grounded does not form part of the judgment of the Tribunal. It is submitted that an appeal lies to this Court from the decisions of the Tribunal and not from the decisions not taken by it. See OJAH v. OGBONI (1996)6 NWLR (PT. 454) 272 @ 286 – 288.

It is contended that the trial Tribunal never held that the non-joinder was fatal to the petition. That this issue having been premised on an issue not decided by the Tribunal is incompetent. See ATOYEBI v. GOVERNOR OF OYO STATE (1994) 5 NWLR (PT. 344) 305; OWEMA BANK PLC v. OLATUNJI (2002)12 NWLR (PT. 781) page 259; LAWSON v. AFANI CONST. CO. LTD (2002) 2 NWLR (PT. 752)585, and GAMBARI v. ILORI (2002) 14 NWLR (PT. 756) 78 and LUBAKUNDI v. A.G. FEDERATION (2002) 17 NWLR (PT.796) 338 @ 360 – 361.

In the circumstance, it is urged that the Appellant’s issue No. 2 be struck out. In any case even if the merit of the matter is considered, it is submitted that the Appellant’s Appeal has no merit. It is conceded by the learned counsel for the 1st Respondent that the Appellant pleaded that the 3rd Respondent (INEC) acted through officials at the various levels of the electoral process. He however, submitted that section 144(2) comes into play only after it has been shown that the official whose conduct is impugned in his absence acted as an agent of the INEC at the relevant time.

It is pointed out that the allegations made in paragraphs 26, 27 – 34 of the Appellant’s petition, against persons not joined as parties included fabricating of results outside the polling stations in favour of the 1st Respondent; preparation of spurious results, “smuggled” to the returning officer by proxy. It is contended that the issues raised in the petition relate to criminal acts of forgery, falsification, fabrication, manipulation of figures by exclusion of votes and other irrularities.

It is submitted that because the 3rd Respondent was not set up to commit criminal offences, a party who alleges that its (INEC) staff that committed criminal offences did so as an agent, must prove that at the material time such a person acted as an agent.

That if this has not been done section 144(2) of the Electoral Act will not apply as the principal only assumes responsibility for the acts of an agent which are ex-facie legal. Reliance was placed on the case of NAKYANTA v. THOMAS (1975)5 SC page 51.

It is submitted by the learned counsel that the Tribunal was right when it held that whilst the non-joinder of necessary parties will not lead to striking out of entire petition in line with s.144 (2) of the Electoral Act, evidence led against persons not joined ought to be expunged and the paragraphs of the petition on which such evidence is based struck out. That this is in keeping with the requirement of fair hearing enshrined in section 36 of the 1999 Constitution. He relied on YAHAYA v. AMINU (2009)7 NWLR (PT.871) page 15q; KALLAMU v. GAURIN (2003) 16 NWLR (PT. 871) 493 and BUHARI v. OBASANJO (2003) 13 NWLR (PT.941) 1.

On this issue, learned counsel for the 2nd – 9th Respondents has submitted that the allegations contained in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 23, 24, 26, 27 and 28 of the Petition are complaints against the presiding officers of OBINWA Wards 2, 4, 5, 6, 8 and 10, the Ward Collation Officers for the same wards, presiding officers in all the polling units in Ugwunagbo Local Government Area, the Supervising Presiding Officers and the Ward Officers in all the wards in the Local Government Area. Reliance was placed on the cases of NWOKE v. EBEOGU (1999) 6 NWLR (PT. 606) 22 258; NDUKA v. OKWARAONYIA (1999) 4 NWLR (PT. 597) 35 @ 40 and JIDDA v. KACHALLA (1999) 1 NWLR (PT. 599) 426.

It is submitted that the consequences of this failure of the appellant to join those officers of the 3rd Respondent whose conduct are the subject of the complaint in the Petition, is that all the mentioned paragraphs above containing the averments of facts about the conducts or events are incompetent and ought to be stuck out, and any evidence received in respect of any of the said paragraphs go to no issue and ought to be discountenanced by the Tribunal. The Respondents cited and relied on the cases of EGOLUM v. OBASANJO (supra); AWUSE v. ODILI (2005) 16 NWLR (PT. 952 416 @ 468 – 4; BUHARI v. OBASANJO (supra).

On the proviso to section 144(2) it is submitted that the effect is to save the Petition as a whole from becoming incompetent and being struck out, particularly on a preliminary objection, on grounds of non-joinder. That the proviso preserves the petition for tearing and preserves the jurisdiction of, the Tribunal to hear the parties and their witnesses.

Furthermore, the Respondents have submitted that even if the questioned paragraphs of the petition were not struck out, the Appellant still had failed to prove his petition because the nature of the allegations set out thereof bothered on criminality which must be strictly proved beyond reasonable doubt. It is submitted that the Appellant failed to prove the allegation beyond reasonable doubt.

The allegations contained in paragraphs 9 – 19; 23 – 28 of the petition are various complaints against the presiding officers and collating officers of OBINGWA WARDS” However paragraphs 26, 27 and 28 in particular constitute complaints against all the presiding officers in all the polling units in Ugwunagbo Local Government Area, the Supervising Presiding Officers and the ward Allocation officers in all the wards in the Local Government Area. In paragraph 10 of the petition, the Appellant alleged among other things concerning wards 2, 4, 5, 6, part of 8 and 10 of Obingwa LGA, the following: sporadic shootings to scare away voters; violence and snatching of electoral materials; hijacking and carting away of electoral materials and absence of voting. In paragraph 15 of the petition concerning the same wards and particularly ward 8, the Appellant alleged among ether things, snatching of electoral materials, forgery and altering of results of 15 wards in Obingwa LGA. In paragraph 26 of the Petition in respect of Ugwunagbo LGA; the Appellant alleged falsification of results, fraudulent use of ballot papers; fabricating of results outside the polling units by agents of 1st Respondent, who are staff of the INEC (3rd Respondent). There are a number of such other general allegations by the Appellant against the election in the said wards in the two Local Government Areas of Obingwa end Ugwunagbo including allegation of holding the officials of 3rd Respondent hostage. These allegations run through paragraphs 9 – 28 of the petition. It is only the individuals affected by these allegations that can effectively defend them.

Section 144(2) of the Electoral Act 2006 provides:

“The person whose election is complained of, is in this Act referred to as the Respondent, but if the petition complains of the conduct of an Electoral officer, a presiding officer, a Returning officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary patty. PROVIDED that were such officer or person is shown to have to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to avoid the petition, if the Commission is made a party.”

(Underlining for emphasis).

By the express wording of the above section of the Act, if a person complains of the conduct of an Electoral officer, presiding officer, Returning officer, or any other person who took part in the conduct of an election;

(a) that officer or person is deemed to be a Respondent; and

(b) every such deemed Respondent shall be joined in the petition in his or her official status as a necessary party.

The proviso serves the purpose of saving the petition as a whole from being incompetent and thus being struck out, particularly on a preliminary objection, on grounds of non-joinder. Essentially, if the INEC (which has the responsibility of conducting and supervising the election) is joined as a party in the petition, failure to join electoral officers against whom complains are made in the petition may result in particular paragraphs of the petition being struck cut but the petition could still stand provided that the remaining paragraphs can sustain it. The wordings of the proviso is clear, it admits no further interpretation. I agree with the learned counsel for the 2nd – 9th Respondents that the proviso is the legislative reaction to the situation after the elections in 2003 when most election petitions were struck out on preliminary objections on grounds of non-joinder of necessary parties in breach of section 133(2) of the Electoral Act of 2002, which is impari materia with section 144(2) of Electoral Act, 2006. The Court of Appeal then was inundated with appeals against the rulings of various Election Tribunals in the country which struck out petitions in which the Electoral body was already a Respondent and which could be sustained even after the incompetent paragraphs are struck out.

Firstly the proviso is not designed to and cannot save paragraphs of a petition that are incompetent for non-joinder of necessary parties. Secondly it is not designed to and did not overrule the Supreme Court’s decisions in OMOBORIOWO & ORS v. AJASIN (supra). It did not change the law as stated in those authorities and many others that followed them such as AWUSE v. ODILI (supra) and NGIGE v. OBI (supra). The case of EGOLUM v. OBASANJO (supra) shows that the issue of non-joinder of necessary party in an election petition is not just concerned with section 144(2) of the Act but also raises the question of fair hearing and the principle of audi alteram partem, enshrined in section 36 of the 1999 Constitution.

In BUHARI v. YUSUF (2003)14 NWLR (PT. 841) 446 @ 516 the apex Court per Kalgo, JSC held:

“I agree with and I am bound by the decision in Egolum’s case that where allegation are made against a party in a case, he should be given a hearing in the principle of audi alteram partem enshrined in our 1999 Constitution in S.36 but my view here is that the party concerned must be proper party. If the so called party is not legally or properly joined, whatever allegations are made against him or her are irrelevant, because basically the Court has no jurisdiction over him even in a case whore he or she consented to be a party.”

The Proviso to section 144(2) of the Electoral Act 2006 cannot therefore overrule this decision which is based on section 36 of the 1999 Constitution.

Even if those paragraphs containing allegation verged on criminal acts and other unethical conducts were not struck out, I agree that the Appellant still have to prove his petition.

Apart from those serious allegations raised in paragraphs 10, 15, also in paragraph 21 of the petition Appellant alleged that 1st Respondent and his thugs were throwing raw acid on people and also firing gun the allegations mentioned above are in their nature allegations of crime. On the authorities of JIM NWOBODO v. ONOH & 2 ORS and BUHARI v. OBASANJO (supra) they must be proved beyond all reasonable doubt.I n the light of the foregoing, I resolve issue 2 in favour of the Respondents.

ISSUE NO. 3

The issue is whether the Judgment of the Tribunal below is not against the evidence. The Appellant’s contention is that the judgment of the Tribunal was against the weight of evidence in that Exhibits J-J1 are conclusive on the question of the removal of the 1st Respondent as Deputy Governor of Abia State. However, the Respondents in their briefs of argument did not agree with the Appellant. They contended that the Appellant has failed to show that the judgment was against the weight of evidence.

It would appear that the Appellant has limited his complaint in this issue to the finding of the Tribunal on the question of the qualification of the 1st Respondent to contest the questioned election. The Respondents have done the same. I shall be brief in my consideration of this issue. The contentions in respect of the issue relate to the alleged impeachment in 2003, which the Tribunal found not to have been established. I have thoroughly dealt with this matter under Issue No. 1 which I have resolved in favour of the Respondents. Repetition, it is said, does not improve argument. Next the Appellant was decided to re-establish his argument on the question of burden of proof of resignation from the office as Deputy Governor, forgetting that I have held that he made assertions on this matter but could not prove it. The same arguments canvassed under Issue No. 1 are being repeated here by the Appellant. I am however constrained by the Appellant to put one or two records straight. The issues of paragraphs 5.17 – 5.22 of the Appellant’s Brief relate to matters pleaded in the paragraph of the petition struck out by the Tribunal; after which the Tribunal at page 762 of the record held that in the absence of those paragraphs there was nothing left for the Appellant to prove his petition. I agree with the learned counsel for the 1st Respondent that this issue was not challenged by the Appellant. All the arguments canvassed will be relevant if there was evidence on record to sustain the said argument. In this case the evidence and paragraphs of the pleadings in which the contentions are based are not before the court. Therefore, the judgment of the lower Tribunal is certainly not against the weight of evidence.

On the issue of unit results from Wards 3, 7, part of 8, 9 and 11 of Obingwa LGA which the Appellant claimed were not accorded due probative value, all I can say is that the affected official of INEC (3rd Respondent) having not been made parties to the petition, no evidence ought to be led against them and, if any evidence was led, such evidence ought to be discountenanced or struck out. This proposition of law finds its support in the case of UDE v. OSUJI (1990)5 NWLR (PT. 151) page 488 @ 512 where this Court per ONU, JCA (as he then was) held that:

“Failure on his part to join a party he has pleaded however shows abandonment of his case in so far as that party is concerned and a manifestation of a frivolous, vexatious, confused or misconceived piece of legal drafting.”

Where a party is pleaded but not joined, the case against him is abandoned and the paragraphs of the pleading raising allegations against him ought rightly to be struck out. This position finds it confirmation from the decision of the Supreme Court in EGOLUM v. OBASANJO (supra) where it affirmed the decision of the Court of Appeal striking out paragraphs of the petition because of non-joinder of electoral officials unpleaded therein. The Tribunal rightly struck out all the paragraphs of the petition on the basis of which the spurious and fabricated results were tendered as exhibits K – P and S – W series. These exhibits were not properly before the Tribunal to merit any consideration, evaluation or attachment of weight.

Furthermore, the position of the law is that the only admissible evidence of the result of an election conducted in accordance with the Electoral Act of 2006 is the one from the 3rd Respondent (INEC) which has statutory duty of conducting, collating and announcing or declaring final results. See LUCKY M. ABARAONYE v. RAY EMEANA AND 17 ORS (2005)10 NWLR (PT. 1096) page 496 @ 509 and OJONG v. DUKE (2003) 14 NWLR (PT. 84t) page 581.

The 3rd Respondent having pleaded that there was no election in Wards 3, 7, part of 8, 9 and 11 of Obingwa LGA and having denied in their written deposition the making of the results contained in Exhibits K – P and S – W series, it cannot be said that the said results will be admissible in evidence as that made by the said 3rd Respondent (INEC). It therefore follows that these Exhibits are not evidence of the result of an election conducted in accordance with the Electoral Act, 2006. The results contained therein in those Exhibits were therefore rightly ignored by the Tribunal. It is pointed out that the pleadings of the petitioner in paragraph 24 which is reproduced on page 8 of the records are manifestly at variance and materially in conflict with the evidence of the petitioner as contained in his written sworn deposition, particularly as it relates to the purported scores or results from the said wards 3, 7, part 8, 9 and 11. In paragraph 24 of the petition it is pleaded that from the Forms EC8AS given to the parties and returned to the Petitioner’s agents; the results disclosed that the total votes for these wards for the 62 units out of 114 gives PDP 755 votes but 31,160 votes for PPA. But in paragraph 35 of the Petitioner’s sworn deposition, at page 21 of the record, the petitioner in relation to the same Obingwa wards deposed that from the forms EC8AS given to the party agents the results disclosed that the total votes for these wards are for a total of 94 units PDP has 819 and PPA 41,070. (See the table of comparison reproduced by the 1st Respondent at page 28 of his brief).

From the above if my deductions are correct, the evidence of the petitioner in relation to the purported figures he claimed to have obtained from the said disputed wards 3, 7, part of 8, 9 and 11 are materially in conflict and at variance with his pleadings in the petition as to the figures/scores he claimed to have obtained from he said wards thus further rendering exhibits K – P and S – W series worthless and inconsequential.

Apart from the evidence of the petitioner being hearsay, at variance with his pleadings, they are also materially in conflict with the evidence of other witnesses of the petitioner. The implication of these conflicts is that the Tribunal or the Court of Appeal cannot pick and choose which results to rely upon between the pleaded result; and the ones in his own deposition given as evidence before the court below. Nor which of the evidence of the witness’ petitioner to accredit.

Apart from the results in the above series of Exhibits being affected by the case of non-joinder, already considered, the validity and authenticity, even by the pleadings of the petitioner, are of a doubtful origin having been denied by INEC. Moreover, these results are also the same results the 1st Respondent had highlighted in his written submission before the lower Tribunal now contained on pages 39 and 640 of the records as the ones the Appellant pleaded in paragraph 21 of the petition which are inconsistent or contradictory figures as shown in paragraph 35 of the Appellant’s written deposition. No effort was made to explain away those contradictory figures as contained in these two processes. The law is that in the absence of an acceptable explanation the lower Tribunal could not be approached to pick and choose which of these two contradictory figures to be relied. In such circumstance, the only option open to the Tribunal below was to reject or disregard these contradictory figures. In its judgment the Tribunal rightly rejected or ignored these spurious and imaginary results of a doubtful origin. It is not even enough for the Appellant to produce spurious unit results as proof of the holding of election in the disputed wards, he ought to have produced and tendered voters’ registers duly accredited and also called as witnesses, persons who actually voted in the various units of those wards. See NWEKE v. EJIM (1999) 1 NWLR (PT. 627) 39 and AWUSE v. ODILI (supra).The Appellant has failed to show that the judgment of the Tribunal below is against the weight of evidence. For this, this issue is resolved against the Appellant.

In the final result, the appeal is completely bereft of substance and it merits a dismissal and it is dismissed with costs of N30, 000.00 only in favour of the 1st Respondent.

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Other Citations: (2008)LCN/2997(CA)