Independent National Electoral Commission (INEC) & Ors V. African Democratic Congress & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
The appellant, Independent National Electoral Commission (INEC) in this first appeal is appealing against the judgment of the Governorship/Legislative Houses Election Tribunal sitting at Lokoja, Kogi State delivered on the 6th of October, 2007. The appellant herein was the 1st respondent to the petition filed by the 1st and 2nd respondents in which they challenged the election and return of the 3rd respondent as the member representing lokoja II Constituency in the Kogi House of Assembly.
The petition was predicated on a sole ground of the alleged unlawful exclusion of the 2nd respondent from the said election by the Appellant. The petitioners at the Tribunal will continue to be referred to as 1st and 200 respondents in this appeal, while the 2nd and 3rd respondents to the petition are referred to as 3rd and 4th. The Tribunal in its judgment delivered on 6th October, 2007 allowed the petition and nullified the election and return of the 3rd respondent based on the alleged unlawful exclusion of the 2nd respondent. The Tribunal ordered a fresh election in the constituency.
Dissatisfied with the decision of the Tribunal the appellant has appealed to this court on four grounds of appear vide the Notice of Appeal dated and filed on 25th October, 2007.
STATEMENT OF FACTS
On Saturday 14th April, 2007 the Appellant conducted the Governorship/Houses of Assembly Elections throughout the country, including Kogi State. The 3rd Respondent contested the House of Assembly election for Lokoja II Constituency of Kogi State on the platform of the 4th respondent. Other candidates that contested the election are:-
(i) Aliyu Yakubu (ANPP)
(ii) Yakubu Abdulkarim (PPA)
(iii) Salihu Usman (AC)
At the conclusion of the election the Appellant declared returned the 3rd respondent as the winner of the election having scored majority of the lawful votes at the election.
On the 11th day of May, 2007 the 1st and 2nd Respondents who did not participate in the elections of 14th April 2007 filed a petition at the Tribunal sitting at Lokoja. The 1st and 2nd Respondents as petitioner challenged the election of the 3rd respondent on the following ground:-
“The 2nd Petitioner at the time of the election was unlawfully excluded by the 1st respondent to contest for the election “.
The petitioner sought the following reliefs at the tribunal.
(a) Declaration that the State Assembly election in Lokoja II Constituency of Kogi State held on 14th April, 2007 as null and void.
(b) A declaration that the 2nd petitioner was disenfranchised from exercising his fundamental human right of contesting the 14th April 2007 state Assembly election, lokoja II Constituency Kogi State.
(e) A declaration to disregard and nullify the result on 14th April, 2007 which declared Baba Sudan Danladi Ibrahim winner.
(d) An order for a bye election into Kogi State Assembly election, Lokoja II Constituency.
On the 3rd of July, 2007 the Appellant (INEC) herein through its counsel, J.A. Akubo Esq. filed a motion for enlargement of time to filed its Reply to the petition. The proposed reply together with witness statement on oath and relevant documents were annexed to the motion. It was also accompanied by a written address in consonance with the Practice Directions. The pre-trial conference started on the 11th of July, 2007. The Appellant’s motion came up for hearing on that day but was further adjourned to the 16th of July, 2007 for hearing.
On the 16th of July, 2007 when the motion came up for hearing, Mr. Benjamin Igbadi Esq. who held the brief of J.A. Akubo Esq. for the Appellant informed the Tribunal of Mr. J.A. Akubo’s instructed to withdraw appearance for the Appellant. The Tribunal granted leave for J.A. Akubo to withdraw his appearance.
On the 16/7/07 in the absence of the 1st and 2nd respondents and/ or their counsel the tribunal struck out the motion on notice of the 1st respondent ( in the tribunal) dated 2nd July, 2007 and filed on 3/7/07. After striking out Appellant’s motion enlargement of time to file reply to petition the Tribunal proceeded to conclude the pre-trial conference and fixed the petition to 17th August for hearing.
On the 15th of August, 2007, Mr. Lucase Okojie filed a Notice of change of counsel for the Appellant. The hearing of the petition eventually took place on the 12th of September 2007 and the petitioners called two witnesses in proof of the petition. The Appellant having no reply before the Tribunal could not call any witness. The 3rd respondent had no witness statement in support of his reply and so could not call any witness.
At the close of the petitioner’s evidence and adoption of the written submission of counsel on the 6th October 2007, the Tribunal delivered its judgment, allowed the petition, nullified the election and ordered a fresh election to be conducted in the constituency.
Dissatisfied with the judgment of the Tribunal, the Appellant has appealed to this court on a Notice of Appeal of four grounds. Similarly the 3rd and 4th respondents have also appealed against the decision of the Tribunal vide a Notice of Appeal which contains five grounds of appeal.
Learned counsel for the Appellant, Mr. Zagana filed the Appellants Brief on 16/11/2008 and posed two issues for determination.
- Whether the decision of the Tribunal suo motu to strikeout the Appellant’s application for enlargement of time to file its reply was not a denial of the Appellant’s constitutional right to fair hearing.
- Whether the sole ground of the petition is a competent ground as envisaged by Section 145(1) (a) – (d) of the Electoral Act 2006.
The 1st and 2nd Respondents filed their Brief on 24/12/07 and it was deemed filed on 21/2/08 and therein formulated two issues:-
- Was the Lower Court (Tribunal) not right to have stuck out their Respondent’s application that was stated for hearing which he abandoned.
- Is the ground of the petitioners petition before the lower court known to section 145(1) (d) of the Electoral Act 2006.
I shall make use of the issues as framed by the Appellant.
ISSUE NO 1
WHETHER THE DECISION OF THE TRIBUNAL SUO MOTU TO STRIKE OUT THE APPELLANT’S APPLICATION FOR ENLARGEMENTOF TIME TO FILE IT’S REPLY WAS NOT A DENIAL OF THE APPELLANT’S CONSTITUTIONAL RIGHT TO FAIR HEARING.
Learned counsel for the Appellant, Mr. Zagana said that the circumstances under which the Appellant’s application was struck out by the Tribunal amounted to a denial of fair hearing for the following reasons:-
(a) The Appellant’s counsel had just withdrawn their appearance in the matter;
(b) The Appellant was not represented in the Tribunal and there was no indication that Appellant knew that J.A. Akubo Esq. was withdrawing appearance thatday;
(c) The petitioner’s counsel did not apply for the striking out of the motion;
(d) The application was not considered on its merits.
(e) It was only fair in the circumstances to have adjourned the proceedings to enable Appellant make alternative arrangement for its representation in the petition.
(f) The fundamental nature of the motion wherein the Appellant was seeking an opportunity to present its own defence before the Tribunal made it imperative for the Tribunal to have adjourned the motion to allow the Appellant ample opportunity to take the application.
The Appellant’s counsel traced the movement of the motion from the 11/07/07 when the motion came up for hearing. The application could not be heard on 11/07/07 because the petitioner’s processes in opposition had not been served on the counsel to the Appellant. The motion was further adjourned to 16/07/07 for hearing and on that day Mr. Benjamin Igbadi Esq. who held brief for J.A. Akubo Esq. applied for leave of the Tribunal to withdraw their appearance for the Appellant. The said application was granted by the Tribunal and after that withdrawal of counsel’s appearance the Tribunal proceeded to strike out the Appellant’s motion which was pending before it.
Learned counsel contended that there is a plethora of cases wherein the principle is laid down that it is the duty of a court to entertain and decide on the merits of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. He cited Eriobuna v. Obiorah (1999) 8 NWLR (pt. 616) 622 at 642; Okoro v. Okoro (1998) 3 NWLR (pt. 540) 65; Mobil v. Monokpo (2003) 12 SCNJ 206 at 235 – 236; Usani v. Duke (2005) All FWLR (pt. 244) 960; Ayorinde v. Fayoyin (200l) 1 FWLR (pt. 75) 483; Kotoye CBN &. Ors
(1989) 1 NWLR (pt. 98) 49.
Learned counsel for the Appellant stated on that the decision of the Tribunal to strike out the motion of the Appellant was in complete disregard of the attributes of fair hearing. That the Tribunal deprived the Appellant of any form of hearing before the striking out and so a miscarriage of justice was occasioned thereby. He cited Eriobuna v. Ezeife (1992) 4 NWLR (pt. 236) 417.
Mr. Zagana submitted that the Tribunal made prejudicial comments about the Appellant even though it had deprived it of the opportunity of presenting its defence. He referred to George v. George (2000) FWLR (pt. 23) 1180 at 1188.
Learned counsel for the Appellant stated further that the effect of the breach of fair hearing in the circumstances of this case is to render the entire proceedings a nullity and it will be irrelevant whether the decision arrived at subsequent by the Tribunal is correct or not. He cited Adebayo v. Okonkwo (2001) FWLR (pt.75) 465; Alabi v. lawai (2004) 2 NWLR (pt. 856) 134 at 137.
Responding, learned counsel for the 1st and 2nd Respondents contended that the Tribunal formally sat on the 20/6/07 for the consideration of the preliminary objection. The 3rd Respondent and the 2nd Appellant were duly represented by their counsel Gbaje Zagana and Joe Abraham Esq. with others while S.I. Ibrahim represented the 1st Appellant and the matter was adjourned to the 25/6/06. That on the 25/6/07 the parties were duly represented by their counsel in S.I. Ibrahim Esq. and others for the 1st Appellant, J.A. Akubo Esq. and others for the 2nd Appellant while Gbaje Zagana appeared for the 3rd respondent. That the preliminary objection was argued and the ruling delivered on 29/6/07 wherein the objection was dismissed and the parties had been represented by their counsel.
Learned counsel for the Respondents 1st and 2nd submitted that the Appellant appealed against the said ruling of the Tribunal. That on the 3/7/07 the 3rd respondent filed a motion for extension of time within which to file its reply to the petition which was a clear 56 days after the petition was filed and the motion was filed by the law firm of P.A. Akubo SAN & Co. He said the 2nd Appellant on its part stunned the Tribunal when on the 7/7/07 filed a memorandum of appearance of time within which to file Reply to the 1st and 2nd Respondents in this appeal. Again the processes were filed from the law firm of P.A. Akubo SAN. That it should be noted that as at the time the Appellant was purporting to enter conditional appearance on 7/7/07 it had not only entered appearance but was represented by its counsel Gbaje Zagana who actively participated in all the proceedings of the Tribunal on the 20/6/07, 25/6/07 and 29/6/07.
Learned counsel stated that the petitioners (herein 1st and 2nd respondents) took exception to the appearance of the law firm of P.A. Akubo SAN & Co. for both the Appellant and the 3rd Respondent herein. That the 1stand 2nd Respondent raised preliminary objection to the hearing of the various motions filed by the Appellant and 3rd Respondent for extension of time. He said on the 11/7/07, the various motions and objection could not be heard because all the parties had not been served and the motions and objections were adjourned to 16/7/07 for hearing. He stated that on that 16/7/07, Mr. Joe Abraham who appeared for the Appellant withdrew all his applications meant to be heard and they were accordingly struck out. That while Benjamin Igbadi Esq. appeared for the 3rd respondent holding the brief of J.A. Akubo Esq. and he informed the court that he had instruction to withdraw appearance for the 3rd respondent herein. He said Joe Abraham Esq. further explained that INEC had debriefed them and by the peculiar nature of an election tribunal petition the Tribunal had no choice but to strike out the 3rd respondent’s motion for hearing and so were withdrawn and struck out the preliminary objections of 1st and 2nd Respondents.
Learned counsel noted that the 3rd respondent was quite aware that its application for extension of time was fixed for definite hearing on the 16/7/07 and was duly represented by J. A. Akubo Esq. when the date was fixed and the 3rd respondent was able to debrief its solicitors who came to the Tribunal to withdraw their appearance. That the 3rd respondent did not deem it necessary to even appear before the Tribunal on the said 16/7/07 or even send a counselor an apology. He was in different and so the action of the 3rd respondent portrays an abandonment of his application fixed for hearing on the said day and so the Tribunal in its judicious/judicial function struck out the motion.
Learned counsel for the 1st and 2nd respondent said it was not true that the Judge suo motu struck out the 3rd respondent’s application for there was before the court the 1st and 2nd respondent’s application to strike the 3m respondent’s application as being incompetent. That the application was not dismissed but struck out and since 3rd respondent was at liberty if he so desired to apply to have the said application re-listed and no such application was ever made before the Tribunal either orally or formally and so the question of a denial of fair hearing did not arise. He cited Eriobuna v. Obiorah (1999) 8 NWLR (pt. 616) 622 at 642.
He said a self induced failure to avail oneself of the opportunity offered to present a case, can never be a basis – of a fair hearing declaration. He referred to Newswatch Communications Ltd v. Attah (2006) All FWLR (pt. 318) 580.
Judgment obtained when one party is absent, or in default of filing of statement of defence, or denied of fair hearing can be set aside by the trial court or the appellate court. Once the right to fair hearing is breached, it is irrelevant whether the decision arrived at subsequently is correct. Alabi v. lawal (2004) 2 NWLR (pt. 856) 134 at 145 – 147; Mohammed v. Husseini (1998) 14 NWLR (pt. 584) 108; Oyeyipo v. Oyinloye (1987) 1 NWLR (pt.50) 356; State v. Onagoruwa (1992) 2 NWLR (pt. 221) 33; Long-John v. Blakk (1998) 6 NWLR (pt. 555) 524.
For a fuller understanding of the principle of fair hearing it is to be noted that the attributes of fair hearing presupposes that the court or Tribunal shall hear both sides not only in the case but also in other material issues before reaching a decision in the case which may be prejudicial to any party in the case. The court shall give equal treatment, opportunity and consideration to all concerned. Accordingly, natural justice demands that a party must be heard before the case against him is determined. The Constitution further guarantees the right to fair hearing and it overrides all other provisions of the law, be they substantive or procedural. See Alabi v. lawal (2004) 2 NWLR (pt. 856) 134; Adigun v. Attorney – General Oyo State (1987) 1 NWLR (pt. 53) 678; Deduwa v. Okorodudu (1978) 9 – 10 SC 329; Umar v. Onwudiwe (2002) 10 NWLR (pt. 774) 129.
A finding that there is no fair hearing implies in itself a prejudice to a party who lost and is tantamount to a finding of contravention of his right to fair hearing guaranteed by the Constitution. And since unfair method cannot produce a fair result, the normal thing to do in such a situation is to set aside the decision per Tobi JCA (as he then was) in Alabi v. Lawal (supra) at 149; Ikomi v. state (1986) 3 NWLR (pt. 28) 340; Idakwo v. Ejiga (2002) 13 NWLR (pt. 783) 156.
Although election petitions are sui generis proceedings which by their nature dictate expeditions hearing and determination, inspite of that they are still bound by the provisions of the 1999 Constitution Section 36 which deals with fair hearing. I rely on Eriobuna v. Ezeife (1992) 4 NWLR (pt. 236) 417.
That situation of the all commanding principle of fair hearing would nevertheless not apply where a party who otherwise would have taken the benefit of that natural law principle himself waives it by conduct as in the present case where the Appellant knowing that a particular counsel had filed a serious motion which was coming up on that 16/7/07 chose to debrief their counsel just before that date and did nothing to either send a new counsel to stand in or in the absence of that, send any representation from their office to plead with the court for the indulgence of time to bring a new legal representation or whatever they chose to take the action of debriefing of their counsel and also on their own volition kept away without a word to the court. The Tribunal was therefore right to conclude that the motion was abandoned and had to be removed from the on going process so as to expedite action in the petition before them. Furthermore the motion was only struck out not dismissed and if the litigant was alive to its rights and privileges had the right to ask for it to be relisted. They failed to use any of the options available to them, therefore they cannot now turn around to complain of the breach of their right to fair hearing. I place reliance on the following cases: Abana v. Obi (2005) 6 NWLR (pt. 920) 183; S &. D Construction Co. v. Ayoku (2003) 5 NWLR (pt. 813) 278; Mohammed v. Kpalai (2001) 6 NWLR (pt.710) 700; Chidoka First City Finance (2001) 2 NWLR (pt. 697) 216.
Assuming even that the trial court ought not to have struck out the Appellant’s motion it did not affect the outcome of the cases as nothing showed that the pursuit of the highest possible ideal of justice was compromised. See Ogboh v. FRN (2002) 10 NWLR (pt. 774) 21 at 37.
The Issue NO 1 is definitely resolved in favour of the 1st and 2nd Respondents and against the Appellant and for emphasis the right of Appellants to fair hearing was not breached.
ISSUE NO 2
WHETHER THE SOLE GROUND OF THE PETITION IS A COMPETENT GROUNDF AS ENVSAGED BY SECTION 14S (1) (a) – (d) OF THE ELECTORAL ACT 2006?
Learned counsel for the Appellant submitted that a petitioner must predicate his or its petition on one or more of the grounds under Section 145 Electoral Act 2006 and none other for the petition to be competent. That in seeking to comply with the above strict adherence to the wordings of Section 145 (1) of the Electoral Act 2006 is required and it is not open to a petitioner to substitute words that are convenient to him or alien to the enabling statute in couching his grounds. He said a careful perusal of the petition would reveal that the petition complains of alleged unlawful exclusion from the election which therefore brings the petition within the ambit of Section 145(1) (d) of the Act. That the petitioners were ipso facto under an obligation to ensure strict compliance with the provisions of Section 145(1) (d) of the Act. That for a ground to qualify as one under Section 145(1) (d) of the Act, it must contain both components, meanwhile the sole ground of the petition reads thus:-
“The 2nd petitioner at the time of the election was unlawfully excluded by the 1st respondent to contest for the election”.
He cited Basheer v. same & 4 Ors (2003) WLRNC 59 at 81.
Mr. Zagana of counsel submitted that by the combined effect of paragraphs 4(1) (d) and (2) of the First Schedule to the Electoral Act of 2006, the facts in an election petition must be kept separate and distinct from the grounds. He said it is not within the discretion of counsel to mix both neither does the Tribunal possesses the power to serve or add facts to grounds to bring same in conformity with the provisions of Section 45(1) (d) of the Electoral Act, 2006. He cited Abimbola v. Aderoju (1999) 5 NWLR (pt. 601) 100 at 108.
He said that section 41(1) of Decree NO.18 of 1992 is in pari-materia with Section 145(1) of the Electoral Act, 2006. That the facts of the election petition cannot be used to make up for an otherwise incompetent ground and the Act clearly required that both be separated and kept distinct. That there has been a failure of compliance with the provisions of Section 145(1) of the Electoral Act on the part of the petitioner and which rendered the sole ground inchoate and incompetent.
Learned counsel for the 1st and 2nd Respondents submitted that what section 145 (1) (d) provided for as a ground of petition is what it called “UNLAWFULLY EXCLUDED” and that is that an election petition will be valid and competent if it complains of the candidate or party being unlawfully excluded. That the requirement of valid nomination does not apply to the political party. That the “Petitioner” in Section 145 (1) (d) of the Electoral Act refers to the 1st Respondent i.e. The political party. He referred to Okon v. Bob (2005) All FWLR (pt. 243) 674; Asinya v. INEC (2005) All FWLR (pt. 247) 1495; Okonkwo v. INEC (2004) 1 NWLR (pt. 854) 242; Adebusuyi v. Oduyoye (2004) 1 NWLR (pt. 854).
He stated that when a candidate duly sponsored by a political party is excluded, it is the political party that is thus excluded and that explains why a candidate who complains of exclusion cannot petition serve along the sponsoring party. That all that is required by a candidate in the circumstances like the present one, the candidate must show in the petition that he was duly nominated. That it was absurd for the Appellant to claim that the 2nd respondent did not state that he was validly nominated is made manifest when the fact that it is the 1st respondent who sponsored the 2nd Respondent is taken into account. That the fact that the 1st respondent who sponsored the 2nd respondent is the 1st petitioner along with the 2nd respondent in the petition is a Res ipso loqiutur nomination. To do otherwise would be a vain journey. Also that the issue of who should complain about the nomination is settled and it is not an outsider or a busybody. He cited UBA v. Enemuo & ors (2006) All FWLR (pt. 311) 1951 at 1963; Jang v. INEC (2004) All FWLR (pt. 200) 1545 at 1567.
It was further submitted for Respondents; 1st and 2nd that this case is not much different from the doctrine of substantial compliance with forms. He referred to Bucknor-Maclean v. INLAKS Ltd (1980) 8 – 11 SC 1.
That the ground of their petition complied with Section 145(1) (d) of the Electoral Act and that technicalities no longer rule adjudication. He cited Modibbo v. Haruna &. ors (2004) EPR 64 at 77; Ogbeide v. Osula (2003) 15 NWLR(pt. 843) 266; Nwole v. Iwuagwu (2004) 1 EPR 681 at 703; Ibrahim v. Sheriff (2005) All FWLR (pt. 245) 1098 at 1118; Nwobodo v. Onah (1984) 11 SCNLR 1.
It is trite to say that a ground of appeal which is vague is incompetent and no issue can formulate from that incompetent ground of appeal. See Wali v. Bafarawa (2004) 16 NWLR (pt. 898) 1 at 26.
The grouse of the Appellant is that the ground of the petition was not within what was provided for under Section 145 Electoral Act 2006. For effect I would recouch the sole ground of the petition which reads:-
“The 2nd petitioner at the time of the election was unlawfully excluded by the 1st respondent to contest for the election”.
The 1st and 2nd Respondents on their part contend that the ground of the petition met substantially with the relevant provision of the Electoral Act.
Where an election petition does not comply with the mandatory requirements of the law a court or tribunal of competent jurisdiction is entitled to strike out the petition. See Eriobuna v. Obiorah (1999) 8 NWLR (pt. 616) 622; Chatjok v. Kato (1999) 3 NWLR (pt. 594) 220.By virtue of Section 92(1) of Decree NO.50, an election will not be invalidated by reason of non – compliance with the Decree if it appears to the court or tribunal that the election was conducted substantially in accordance with the principle of the Decree and that the non-compliance did not affect substantially the result of the election. That Decree provision is in pari material with the current Electoral Act 2006, Section 145 and others. Thus the onus is squarely on the part who asserts non-compliance to show that it did in fact affect substantially the result of the election. See Eriobuna v. Ezeife (1992) 4 NWLR (pt. 236) 417 at 430 per Jacks JCA.
The petition and the ground put forward has left no one in doubt of what the grievance is or all about, therefore it met in substance the provision of Section 145(a) (d) Electoral Act 2006 and I so answer this issue in favour of the Respondents 1st and 2nd and that the sole ground of the petition is a competent ground as envisaged by Section 145(1) (a) – (d) of the Electoral Act 2006. To seek to reduce what is available to semantics are not intended by the Electoral Act framers and it goes against the current attitude and practice of the courts which was given a cold shoulder to technical justice which usurps the place of substantial justice. See Ibrahim v. Sheriff (2005) All FWLR (pt. 245) 1098 at 1118; Nwobodo v. Onoh (1984) 11 SCNLR 1; Ogbeide v. Osula (2003) 15 NWLR (pt. 843) 266.
It is for the reason above that the case and principle in Wali v. Bafarawa (2004) 16 NWLR (pt. 898) 1 at 26 on the Vagueness and incompetence of a ground of appeal making it impossible to found an issue upon, cannot apply to the instant case.
From the foregoing this first appeal titled: INDEPENDENT ELECTORAL COMMISSION (INEC) V. AFRICAN DEMOCRATIC CONGRESS & 3 ORS fails and is hereby dismissed.
SECOND APPEAL
Mr. Abalaka for the Appellants, in Bababudan Danladi and Peoples Democratic Party against (1) African Democratic Congress (2) Zachaeus Jonathan, (3) Independent National Electoral Commission (INEC) filed an Appellants’ Brief on 16/11/07 in which the Appellants raised three issues viz:-
- Whether the sole ground of the petition is a competent ground as envisaged by Section 145(1) (a) – (d) of the Electoral Act 2006.
- Whether the Tribunal was right in holding that the petitioners had proved their alleged unlawful exclusion
- Whether the decision of the Tribunal suo motu to strike out the 3rd respondents application for enlargement of time to file its reply was not a denial of the 3rd respondent’s constitutional right to fair hearing?
The 1st and 2nd Respondents filed their respondent’s brief on 24/12/07 and deemed filed on 21/2/08. He referred to the preliminary objection they raised in respect of ground 3 and issue 3 on the ground that it is an abuse of court process.
Mr. Oshomegie of counsel for 1st and 2nd Respondents submitted that having regard to the grounds of appeal and the preliminary objection, two issues are germane for the determination in this appeal which are:-
- Is the ground of the petitioner petition before the Lower Court known to Section 145(1) (d) of the Electoral Act 2006.
- Is the judgment of the lower court (Tribunal) 6/10/07 that the petitioner (1st and 2nd Respondents herein) have proved their petition not justified and in accord with settled principles of law having regard to the pleadings and evidence abduced before the Tribunal.
The Respondents 1st and 2nd said in the event their preliminary objection to ground 3 of the appeal then a third issue should be added in the manner:-
Issue 3: Was the lower court (Tribunal) not right to have struck out the 3rd respondent’s application that was stated for hearing which he abandoned.
PRELIMINARY OBJECTION
Learned counsel in arguing this objection referred to the Ground 3 of the appellant’s Notice of Appeal without the particulars is stated hereunder:
“Ground Three
The Honourable Tribunal erred in law when suo motu it struck out the 1st Respondent’s (now 3rd
Respondent’s) application for enlargement of time to file its Reply out of time and thereby peremptorily denying the 3rd Respondent of its constitutional right to fair hearing which error has occasioned substantial miscarriage of justice to Appellants”
Learned counsel for 1stand 2nd Respondent’s stated that the 3rd Respondent on the same matter having the same appeal number framed the same ground word for word also as Ground 3 as follows:-
“Ground Three
The Honourable Tribunal erred in law when suo motu it struck out the appellant’s application for enlargement of time to file its Reply out of time and thereby peremptorily denying the 3rd Respondent of its constitutional right to fair hearing which error has occasioned substantial miscarriage of justice to Appellants”.
Mr. Oshomegie of counsel submitted that clearly the two grounds above are the same and in this appeal that is an abuse of court’s process since the sufferer is not the Appellant rather it is the 3rd Respondent. That the Appellant is crying more than the bereaved. He cited Ikire v. Ederode &. ors (2002) FWLR (pt. 92) 1775 at 1819; Arubo v. Aiyeleru &. ors (1993) 2 SCNJ 90 at 102.
Learned counsel for the 1st and 2nd Respondents said this third ground of appeal should be struck out and all arguments canvassed thereat in Issue 3 of this Brief of Argument discountenanced.
On his part learned counsel for the Appellant said there is no abuse.
This preliminary objection needs not be belaboured as indeed it had been dealt with in the first appeal and it is a clear abuse to be brought up again here and so I have no difficulty in upholding the objection. Ground 3 and issue 3 arising therefrom are struck out for being abuse of court process and duplication thereby incompetent.
I shall utilise the issues as framed by the Appellant minus Issue NO 3 which has been struck out for abuse process in that the Appellants were bringing into discourse an area not really concerning them.
ISSUE NO.1
WHETHER THE SOLE GROUND OF THE PETITION IS A COMPETENT GROUND AS ENVISAGED BY SECTION 145 (1) (A) – (D) OF THE ELECTORAL ACT 2006.
Learned counsel for the Appellant stated that a petitioner must predicate his or its petition on any or more of the grounds under Section 145(1) of the Electoral Act 2006. That in seeking to comply with the above strict adherence to the wordings and purport of Section 145(1) of the Electoral Act 2006 is required and it is not open to a petitioner to substitute words that are convenient to him or alien to the enabling statute in couching his grounds. That a careful x – ray of section 145(1) (d) reveals two major components viz:-
(a) The fact of valid nomination
(b) The fact of unlawful exclusion
That for a ground to qualify as one under Section 145(1) (d)of the Act, it must contain both components. He said the sole ground of the petition read thus:-
“The 2nd petitioner at the time of the election was unlawfully excluded by the 1st respondent to contest for the election “.
Learned counsel said that what is contained in the petition falls short of the provision in Section 145(1) (d) of the Act. He cited Basheer v. Same & 4 Ors (2003) WLRNC 59 at 81; Abimbola v. Aderoju (1999) 5 NWLR (pt. 601) 100 at 108.
Learned counsel for the Appellant, Mr. Abalaka said the Tribunal on the issue seemed to have glossed over the requirement for strict compliance with the provisions of the Election Act and paragraphs 4 (2) of the First Schedule to the Act which requires that paragraphs in an election petition must be confined to distinct issues, moreso, facts in a petition are supposed to be anchored on grounds. That where facts are not covered by any of the grounds such facts are of no moment. That the Tribunal cannot import the facts of the election petition to make up for an otherwise incompetent ground, as the Act clearly requires that both be separated and kept distinct.
Learned counsel for the Appellant said the combined effect of Section 147(3) of the paragraph 4(6) of the First Schedule to the same Electoral Act, 2006 impose a duty on the Tribunal upon the motion of a respondent to strike out such a petition that runs foul of those provisions since there should be strict compliance. He cited Buhari v. Yusufu (2003) FWLR (pt. 174) 329 at 354 – 355.
In response learned counsel for the Respondent’s 1st and 2nd said that the lower court was justified in its judgment of 6/10/07 that the ground of the petition of 1st and 2nd Respondents was competent.
That there are two beneficiaries of Section 145(1) (d) of the Act that is the political party and the candidate and the requirement for each differ. Mr. Oshomegie further contended that the requirement of a valid nomination does not apply to the political party. He cited Appeal NO.CA/IL/EPT/GOV./2/2007 between PPA &. anor v. Saraki &. ors delivered on 2/11/07.
He said the “The Petitioner” in Section 145(1) (d) of the Electoral Act refers to the 1st Respondent ie the political party. He cited Okon v. Bob (2005) All FWLR (pt. 243) 674; Asinya v. INEC (2005) All FWLR (pt. 247) 1495; Okonkwo v. INEC (2004) 1 NWLR (pt. 854) 242; Adebusuyi v. Oduyoye (2004) 1 NWLR (pt. 854); P.P.A. &. Anor v. Saraki &. Drs (supra) unreported.
Learned counsel said by virtue of Section 221 of the 1999 Constitution and Sections 32 – 40 of the Electoral Act, 2006, the way a political party (ie the 1st Respondent) can actively participate in politics and electioneering processes is by sponsoring candidates as it did with regard to the 2nd respondent and so when the candidate duly sponsored by a political party is excluded, it is the political party that is thus excluded. That this is why a candidate who complains of exclusion cannot petition same along the sponsoring party. That when the 1st and 2nd Respondents couched the ground of their petition as contained in the petition it was well within the ambit and contemplation of Section 145 (1) (d) of the Act and that valid nomination is not a ground for an election petition under Section 145(1) (d) of the Act.
Learned counsel went further to contend that It is the law that the governorship law and facts of a case must be at all fours with the other before the first can be a binding precedent. He cited Ezewani v. Onwordi (1986) 4 NWLR (pt. 30) 27.
He stated on that in election matters technicalities take a back bench. He cited Modibbo v. Haruna &. Ors (2004) 1 EPR 64 at 77; Ogbeide v. Osula (2003) 15 NWLR (pt. 843) 266; Ibrahim v. Sheriff (2005) All FWLR (pt. 245) 1098; Nwobodo v. Onoh (1984) 11 SCNLR 1.
The 3rd Respondent in court below that is Bababudan Danladi Ibrahim filed a six paragraph reply to the petition on 5th June 2007 and it is restated as follows:-
“The 3rd Respondent admits paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the petition and paragraphs A, B, C, D and E of the facts in support of the petition”.
The Tribunal found as follows:-
“Suffice (sic) to state that the above quoted paragraph admits the whole of the petition of the petitioners what was not admitted in the petition was the prayers contained in the petition. It is trite law that what has been admitted need no proof”.
From the above some curiousity arises as to why the Appellant is herein complaining having not contested those averments.
An appellate court is not competent to pronounce upon an issue which a trial court did not have the opportunity of pronouncing upon. It is also improper for a party to raise issues not arising from the judgment appealed against it. Where such issue is, however raised, it becomes irrelevant and will not be considered by the appellate court. Ogbeide v. Sula (2003) 15 NWLR (pt. 843) 266; Bello v. Jallo (1999) 4 NWLR (pt. 598) 189; UBN Plc v. Ayo Dare & Sons Ltd (2000) 11 NWLR (pt. 679) 644.
Where a defendant fails specifically to deny an averment in a statement of claim and it is impossible to infer denial from his statement of defence, the fact in the statement of claim is deemed established. This principle applied in the case of ordinary civil actions in relation to pleadings and it also applies just as forcefully in election petition cases in relation to filing of petitions and replies. Basheer v. Same (supra) 502 -503; Ajibade v. Mayowa (1978) 9 – 10 SC 1; Oduwa v. Nnachi (1964) 1 All NLR 329.
It is an established rule that a plaintiff must be held to the case put forward in his writ of summons and pleadings, for one of the objects of pleadings is to settle the issues to be tried. Therefore any evidence which is at variance with the averment of the pleadings goes to no issue and must be disregarded by the court. It is because of the situation from the pleadings of the Appellants now rightly found by the lower court as not assisting them that I also hold as the tribunal found that the complaint cannot get off the drawing board.
I resolve this issue in favour of the Respondents 1st and 2nd.
ISSUE NO.2
WHETHER THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE PETITIONERS HAD PROVED THEIR ALLEGED UNLAWFUL EXCLUSION.
Learned counsel for the Appellant’s said the courts have set down the essential ingredient to be proved where a petition questions an election on the ground of valid nomination of the petitioner or its candidate but was unlawfully excluded from the election. He cited Effiong v. Ikpeme (1999) 6 NWLR (pt. 606) 260 at 274 – 275; Ezeobi v. Nzeka (1989) 1 NWLR (pt. 98) 382.
He said the three ingredients must be proved to co-exist before a petition based on unlawful exclusion can be said to have been proved. That the Appellants submit that the petitioners had failed to prove valid nomination which is an essential element required to be proved in this petition and valid nomination is the foundation for the complaint of unlawful exclusion.
Learned counsel contended that it is only INEC that is in a position to admit or deny the valid nomination of any candidate presented by a political party and the 1st Appellant is not in a position to determine whether any candidate or aspirant has been validly nominated as that is within the exclusive prerogative of INEC. He cited Seismograph Service Ltd v. Ogbunegwe (1976) 9 &. 10 SC 335.
It was further contended for the Appellant that the purported reply of the 3rd respondent is not a competent reply within the con of the Practice Directions that governed proceedings at the Tribunal. That paragraph 2 of the Practice Directions stipulate the format of a reply contemplated therein. Such a reply must be supported by documentary evidence, list of witnesses and witness statement on oath and a bare reply without those supporting statements is incompetent and incapable of constituting an admission of petitioners’ averments in the petition. Also the reply as completely abandoned by 1st appellant as no evidence was led in support of it.
He cited Uwegba v. Attorney-General Bende State (1986) 1 NWLR (pt. 16) 303.
Learned counsel said it was the responsibility of the petitioners to adduce evidence to fill this yawning gap and they never did. That Exhibit A did not constitute an admission of the valid nomination of the petitioners or their candidate. That the petitioner failed to prove the essential ingredient of valid nomination and unlawful exclusion and that the Tribunal was in error when it held otherwise.
Learned counsel for the 1st and 2nd Respondents contended that the petition of the petitioner 1st and 2nd Respondents was never replied to by any of the Appellants and the 3rd Respondent. That in the absence of evidence in rebuttal, the petitioners evidence must be accepted. Also that it is illogical demanding proof of valid nomination when the nominator is a joint petitioner with the nominee. He cited Action Congress & anor v. INEC & ors (2007) All FWLR (pt. 378) 1012.
Learned counsel said that for the petitioner to succeed on ground of having been unlawfully excluded, the following must be proved:-
(a) That there was an election to the Kogi State House of Assembly in respect of Lokoja II constituency on the 14/4/07.
(b) That the 1st petitioner as a political party participated in the election and that the 2nd petition was a candidate in the said election
(c) That the petitioners were unlawfully excluded from the said election of 14/4/07.
That the petitioner aptly fulfilled all of the above requirements. He stated on that when the Appellants failed to file and reply to the petitioners petition and so called no evidence, they in law chose to rest their case or the evidence of the petitioners and by that asked the court to decide the petition on the evidence as adduced by the petitioners. He cited Toriola & ors v. Williams (1982) 7 SC 27; Nwole v. Iwuagwu (2006) All FWLR (pt. 316) 325 at 354; Oguma v. IBWA (1988) 1 NWLR (pt. 73) 658; Baba Iya v. Sekeli (2005) All FWLR (pt. 289) 1230; Ajibade v. Mayawa (1998) 11 NSCC 458; Olale v. Ekwelendu (1987) 2 SCNJ 154; Modupe v. The State (1988) 19 NSCC 437.
Learned counsel stated on that even though the ballot paper was rejected when tendered on the ground that it was not filed along the petition though pleaded, the Tribunal still had another access to the same ballot paper since the 1st petitioner/1st Respondent filed a counter affidavit dated 17/8/07 to the 3rd Respondent affidavit dated 20/7/07 which counter-affidavit had the ballot paper in issue attached and the Tribunal had the duty to look at and make use of its record. He referred to NNPC v. Tijjani (2007) All FWLR (pt. 344) 129.
Learned counsel said in proof of a case, it is not the number of witnesses called or the quantity of evidence adduced that matters and what matters is the worth and probative value of evidence adduced even if by a single witness. He cited Oji v. Ndu (1993) 1 NWLR (pt. 268) 235 at 237; Wali v. Bafarawa (2004) 10 NWLR (pt. 898); Ezearodosiako v. Okeke (2005) 16 NWLR (pt. 952) 612 at 622; Nwamara v. Encyclopedia of Election law & Practice PP 1341 – 1342.
Mr. Oshomegie stated that when the 3rd respondent printed its ballot papers for use in the said 14/4/07 election wherein it excluded the name and logo (symbol) of the 1st petitioner. The 1st Respondent was not only unlawfully excluding the petitioners but was violating and breaching mandatory requirement of the Electoral Act 2006 and a breach of the constitutional rights of the petitioners as enshrined in Section 221 of the 1999 Constitution.
I have stated in quote section 145(1) of the Electoral Act, 2006 which is of necessity herein and it provides:-
“145(1) (d) An election may be question on any of the following grounds:-
That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
That was the guiding law and the Appellant contends that the issue of a valid nomination should be appropriately addressed in proof for the completion of the requirement inclusive of the fact of the unlawful exclusion and both must be present at the same time before the issue of exclusion can vitiate an election. The 3rd Respondent on their part through counsel said that argument cannot hold in the circumstances of this case as the Appellants cannot successfully challenge the position of the 1st Respondent. What I see is that the Respondents have adequately proved their unlawful exclusion and also their valid nomination since the 1st Respondent, the African Democratic Party and the 2nd Respondent, zachaeus Jonathan are suing together and the party is not saying the 2nd Respondent is not their candidate. Rather they affirm he is their duly nominated candidate and so that leg of section 145(1) (d) is proved. It has to be stated that the manner of proof in any petition may vary from one petition to the other, A situation where a party expects the other as in this case the petitioner to prove what is already obvious is clearly a time wasting academic exercise to massage the ego of the adventurers. The time for that is not now and the forum certainly not this court.
Furthermore the trial Tribunal had considered Exhibit A, the correspondence between INEC Lokoja and INEC Headquarters Abuja (3rd Respondent) which stated as follows:-
” (1) That the under listed names were actually screened by us and their names forwarded to the Headquarters for necessary action.
(2) That the names against their respective number as per the typed copy sent to you fro Kogi viz”. Column 4 of that Exhibit A is the name of the 2nd petitioner (r Respondent herein), his party, number on typed list and his constituency is Lokoja II”.
It is not disputed that the list of party candidates including that of the 2nd Respondent got to the 3rd Respondent through the 1st Respondent, the political party, African Democratic Party (ADC) therefore the contention of the Appellant about proof of valid nomination is neither here nor there. Infact it is shooting without a target. See Oji v. Ndu (1993) 1 NWLR (pt. 268) 235; Wali v. Bafarawa (2004) 16 NWLR (pt. 898); Nwole v. Iwuagwu (2006) All FWLR (pt. 316) 325 at 354; Oguma v. IBWA (1988) 1 NWLR (pt. 73) 658.
This Issue is resolved in favour of the Respondents 1st and 2nd. It is clear that this appeal lacks merit as the finding and decision of the Tribunal cannot be faulted. This appeal is dismissed and the decision by the Tribunal is upheld. The 3rd Respondent should within 60 days arrange for a fresh ‘election giving all registered political parties equal space to contest.
I make no order as to costs.
Other Citations: (2008)LCN/2699(CA)
