Isah Ogrima Amoka V. Bello Alhaji Abdullahi & Ors (2008)

LawGlobal-Hub Lead Judgment Report

PER RABIU DANLAMI MUHAMMAD, J.C.A.

The appellant herein was the 1st respondent in a petition presented jointly by one Bello Alhaji Abdullahi and the Peoples Democratic Party before the State House of Assembly Election Petition Tribunal sitting at Lokoja, Kogi State the petitioners prayed for the following reliefs:-

“1. The 1st respondent was not duly and validly elected or returned as the winner of the election in Okene Central I Constituency of Kogi State owing to the fundamental vice that vitiated the election, that is, the unlawful exclusion of the 1st petitioner who was validly nominated but was unlawfully excluded from the election.

2. that the election and return of the 1st respondent is null and void.
3. that your 1st Petitioner was validly nominated by your 2nd petitioner but was unlawfully excluded from the election by the 2nd – 5th respondents.
4. that the whole exercise in Okene Central I Constituency of Kogi State on 14th April, 2007 is null and void and should not have taken place due to the omission committed by the respondents which adversely affected your 1st petitioner.
5. that a fresh election be conducted by the 5th respondent for Okene Central I Constituency of the Kogi State House of Assembly election using a ballot paper containing your 2nd petitioners logo or that your petitioners be treated equally and similarly as other candidates and parties at the fresh election. ”

After the respondents were served with copies of the petition, the respondents entered conditional memorandum of appearance. The respondents also filed preliminary objections. The grounds on which the objections were founded were:-

“1. An order striking out the petition for non-compliance with Sections 141, 144 (1) (a) and 145 of the Electoral Act, respectively.

2. An order that the Petitioners have no locus standi to bring the petition as they are not Persons referred to under Sections 144 (1) and 145(2) of the Electoral Act to present a petition.
3. An order that this Honourable Tribunal had no jurisdiction to entertain the petition.”

Arguments in respect of the preliminary objections and the substantive petition were taken together. In respect of the preliminary objections, the tribunal ruled among other things that it had jurisdiction to entertain the petition.

With regards to the Petitioners locus standi to bring the petition this is what the Tribunal said:-

”Based on the authority of OKONKWO Vs INEC (Supra) IFEANYI CHUKWU VS INEC (Supra) and ADEBUSUYI Vs ODUYOYE (Supra). We have no difficulty in coming to the conclusion that the 1st Petitioner was not a candidate at the election of 14th April, 2007. The 1st Petitioner not being a candidate in the election, he lacks the locus standi to bring this petition by virtue of Section 144 (1) (a) of the Electoral Act, 2006, See IBRAHIM Vs INEC and ORS (Supra). Based on the above, the 1st Petitioners name is hereby struck out of this case.

The second Petitioner is PDP. By virtue of Section 144 (1) (b) of the Electoral Act, a political party which participated in election may present a petition in respect of that election. ”

After disposing of the preliminary objections the Tribunal then considered the petition as a whole and came to the following conclusion:-

“Having (sic) taking into consideration the entire evidence before us and the provisions of the Electoral Act, we hereby hold that the election into the Kogi State House of Assembly conducted on 14th April, 2007 was not conducted in substantial compliance with the Electoral Act. Therefore the 1st Respondent was not validly elected. In accordance with the provisions of Section 147(2) of the Electoral Act, 2006 the election is hereby nullified.

The 5th respondent is hereby ordered to conduct a fresh election using a ballot paper which must include the name and logo of the 2nd Petitioner whose candidate again was validly nominated but unlawfully excluded from the election of 14th April, 2007.”

The 1st respondent was not satisfied with this decision, he therefore appealed to this Court. His Notice of Appeal contains twelve grounds of appeal.

The 2nd 3rd 4th and 5th respondents were also aggrieved by this decision. They too appealed to this court. They filed six grounds of appeal. The two appeals were later consolidated by the order of this court. Briefs were filed and exchanged.

The first set of appellant, Isah Ogrima Amoka identified eight issues for the determination of the appeal. The 2nd set of appellants ie. INEC and ors. formulated six issues for the determination of the appeal. The 1st and 2nd respondents formulated five issues for the determination of the appeal. Having considered the facts and circumstances of this appeal it is my considered opinion that the issues formulated by the second set of appellants are more apposite to the determination of the appeal. The issues are:-

“1. Whether the 1st respondent proved that he was validly nominated by the 2nd respondent and was unlawfully excluded from the election into the Kogi State House of Assembly held on 14th April, 2007

2. Whether from the evidence the trial Tribunal was right in nullifying the election of 3rd respondent.
3. Whether the trial Tribunal was right by arriving at its judgment on facts pleaded by the 1st respondent in his petition when the Tribunal had struck out his name from the petition as a party. ”

On the 1st issue i.e whether the 1st respondent proved that he was validly nominated by the 2nd respondent and was unlawfully excluded from the election into the Kogi State House of Assembly held on 14th April, 2007, the 1st appellant, after quoting extensively the averments in the petition submitted that the petition being a joint petition and since the tribunal held that the 1st respondent had no locus standi to bring the petition, all averments relating to the 1st petitioner ought to have been struck out. It was also submitted that in view of the circumstances and facts of the matter, the tribunal could not on its own at that stage even begin a severance or amendment of the petition suo motu to save the entire petition as was done by the tribunal because the petition has already become incompetent after the name of the 1st petitioner was struck out.

In support the case of Prince Nwole v. Chief Iwuagwu and Ors (2004) 1. EPR 681 was referred to. It was further submitted that had the tribunal struck out the paragraphs relating to the 1st petitioner, the tribunal would have seen that the substratum of the petition is gone and it would have been a waste of time to go into the trial of the petition. We were referred to the case of Aruba v. Aiyeleru (1993) (Pt 280) 126. It was also submitted that the tribunal was in error to have turned round to rely on the averments made by a person who is adjudged to have no standi to institute the action. It was also submitted that the lack of locus standi deprives the tribunal the jurisdiction to adjudicate on all issues raised by the 1st respondent in the petition. In support the following cases were referred to:-Olayemi Vs Adeniyi (2007) 3 NWRL (Pt.1020) 1 and Idachaba Vs Ilong (2007) 6 NWLR (Pt 1030) 277.

It was also submitted that on the authority of Ibator Vs Barakuro (2007) 9 NWLR (Pt 1040) 472, the proper procedure was for the tribunal to have settle the issue of locus standi at the preliminary stage and failure to take the preliminary objection before proceeding to the substantive case, caused miscarriage of justice. We were urged to hold that the remaining paragraphs wherein the names of the 1st and 2nd respondents were mentioned jointly do not contain sufficient facts to justify the decision of the tribunal and the reliance on the averment of the 1st respondent who had no locus standi caused a misconception and miscarriage of justice. We were urged to set aside the decision of the tribunal because it was arrived at without due regard to the understanding that the paragraphs which were specifically made by the 1st respondent ought to have been struck out.

The 2nd set of appellants i.e. INEC and ors submitted in their brief that where a Petitioner fails to prove that he was validly nominated, then the issue of his unlawful exclusion cannot arise. It was submitted that the tribunal having struck out the 1st petitioner’s name from the petition on the ground that he lacked the locus standi to bring the petition all facts averred by him in his pleading and evidence led by him, ought to have been struck out and discountenanced by the tribunal. The relevant paragraphs relating to the 1st petitioner in the petition were reproduced in the said brief and we were urged to hold that the pleadings of the 1st respondent as contained in the quoted paragraphs are incompetent by virtue of the striking out of his name. It was submitted that substantial part of the evidence of the 1st respondent necessary to sustain his allegations of valid nomination and unlawful exclusion were based on unpleaded facts. It was further submitted that evidence given by a party based on facts not pleaded go to no issue. We were referred to the case of First Bank of Nigeria Plc Vs Mainasara (2004) 10 FWLR (Pt 233) 875. It was also submitted that a party must succeed on the strength of his case and not on the weakness of defence case. It was submitted the 1st petitioner did not return his form within the stipulated time and as he could not be said to be a nominated candidate at the election. Also it was stated that the 1st Petitioner failed to tender any document of acknowledgement as evidence of submission of his nomination form. It was then submitted that the failure of the 1st petitioner to tender such a crucial document is fatal to the 1st petitioner’s case. The case of FATS v. Partnership Investment Co Ltd (2004) 3 FWLR (pt 200) 406.

Parts of the tribunal’s judgment were reproduced and it was submitted that the conclusion did not flow from the entire evidence placed before the tribunal and was therefore perversed. We were referred to the following case:- AVOP Plc v. A. G. ENUGU STATE (2000) FWLR (pt 2) 251. We were urge to resolve this issue in the negative and uphold this appeal on this ground.

The 1st and 2nd respondents in their brief, relying on the authorities of Effiong Vs Ikoeme (1999) 6 NWLR (pt 606) 260 and Ezeobi Vs Nzekil (1999) 1 NWLR (pt 98) 273, submitted that in a petition that complains of the unlawful exclusion of a validly nominated candidate under 5.145 (1) (d) of the Electoral Act, 2006 must prove that (a) that its candidate was validly nominated (b) that the election was conclusive and a winner was declared and (c) that its candidate was unlawfully excluded from the election by virtue of the omission of its name and logo from the ballot papers used for the election. It was submitted that the tribunal found that the 200 petitioner had established all the necessary ingredients required to be proved and that the pleadings and evidence before the tribunal amply support the finding of the tribunal. It was also submitted that the pleadings and evidence before the tribunal amply demonstrate that the petitioners adduced credible and overwhelming evidence in proof of the valid nomination of 2nd respondent’s candidate after extensively reproducing the evidence at the tribunal, it was submitted that Exhibits ‘B’ and ‘C’ issued by the 5th and 6th respondents are conclusive proof of the valid nomination of the 1st respondent by the 2nd respondent for the election. It was further submitted that in view of Exhibits A, B and C tendered by them it was no longer necessary to tender the nomination forms in proof of the valid nomination. We were then urged to hold that the tribunal was right when it held that 200 respondents’ candidate was validly nominated but unlawfully excluded from the election. We were urged to resolve this issue in favour of 1st and 2nd respondents.

I will first deal with the issue whether the tribunal was right when it refused to strike out the pleadings relating to the 1st petitioner when it has struck out his name. The contention of all the appellants is that the tribunal should have struck out the petition and should not have relied on the evidence adduced by the 1st petitioner. It is not in dispute that the petition was presented jointly by the 1st and 2nd petitioners. The averments in the petition are joint and as such are interwoven and would be impossible to serve any paragraphs that specifically relate to the 1st petitioner and have no relevance to the 2nd petitioner especially if we realise that the ground for the petition is that the 1st petitioner being the validly nominated candidate of the 2nd petitioner was unlawfully excluded. The reality is that this is a joint petition. They filed a joint pleading and the prayers sought in the petition. In my considered view it is impossible to extricate the pleadings of the the petitioner from that of the 2nd petitioner. It will also amount to gross injustice to 2nd petitioner to struck out the whole petition simply because the name of the 1st petitioner was strike out. It is therefore my opinion that the tribunal was right for not striking out the paragraphs of the petition.

At the trial tribunal, the petitioners challenged the election of the appellant on the ground inter-alia that the 1st petitioner was validly sponsored and nominated by the 2nd petitioner for the election but was unlawfully excluded from the election by the 2nd – 5th respondents which has unlawfully and illegally benefited the 1st respondent. Section 145 (1) of the Electoral Act, 2006 provides:-

“(1) An election may be questioned on any of the following grounds:-

(a) …

(b) …

(c) …

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. ”

For a petitioner to succeed that he was validly nominated by his party but was unlawfully excluded from the election, he must prove:-

a. that he was validly nominated by his party:

b, that the election was conducted and concluded:

c. that a winner was declared; and

d. that his name was not included in the list of the contestants.

I agree with the tribunal that from the pleadings and the evidence before the tribunal the following facts were established:-

1. that the 2nd petitioner sponsored and nominated 1st petitioner as its candidate
2. the 1st petitioner filed and submitted necessary forms
3. the 1st petitioner took part in the verification exercise conducted by the 5th respondents and was cleared to contest the election
4. when the list of nominated candidates came out, 1st petitioners name was omitted.
5. the petitioners complained and the omission was rectified and
6. on the day of the election the name and logo of the 2nd petitioner was omitted from the ballot paper used for election.

In the circumstance I agree with the tribunal that the 2nd petitioner has proved that its candidate was validly nominated but was unlawfully excluded from the election. My answer to the 1st issue is therefore in the affirmative.

I now come to the 2nd issue which is – whether from the evidence, the trial tribunal was right in nullifying the election of 3rd respondent. The 1st appellant submitted in his brief that the tribunal was in error when it annulled the election under S.147 (2) of the Electoral Act, 2006 and caused a miscarriage of justice because:-

1. the appellant proved that it scored 96% of the entire votes cast at the election.
2. that he scored over 96% of the votes from the registered voters in the entire constituency
3. the facts are admitted in the petition and
4. there is no basis for the holding of the tribunal that the appellant did not score the majority of the votes cast at the election.

We were urged to set aside the decision of the tribunal and declare the appellant as duly elected by lawful majority votes cast at the election in line with S.147 (2) of the Electoral Act, 2006.

It was also submitted that the lower tribunal was in error when it held that the other political parties particularly Action Congress whose candidate scored votes at the election are not necessary parties to the petition it was also submitted that the issue of joinder in an election petition is very fundamental, such that, the failure to join the necessary parties is not like in ordinary cases. It was also submitted that political parties and their candidates are persons interested in the election as they participated in the same and they will be affected if the election is nullified. It was submitted that since non-joinder is a fundamental error, the petition ought to have been dismissed because the tribunal lacked the jurisdiction to entertain it. The following case was cited in support: Uzodinma Vs Udenwa (2004) 2 FWLR (Pt 192) 186. It was also submitted that a necessary party is a party whose right will be affected by the order of the tribunal and that non-inclusion of a necessary party in an election petition is fatal. We were urged to resolve this issue in favour of the appellant.

The second set of appellants ie INEC and ors submitted in their joint brief that the tribunal was wrong to have concluded that the election was not conducted in substantial compliance with the Electoral Act and that the 3rd respondent was not validly elected and thereby nullified the election. It was also submitted that the 1st and 2nd respondents had onus to prove that the election was not conducted in substantial compliance with the Electoral Act, which they failed to discharge. It was also submitted that by their pleadings the burden had been fixed on the 1st and 2nd respondents to prove the allegations of valid nomination and unlawful exclusion. In support the case of Archibong Vs Ita (2004) 12 FWLR (Pt 239) 1. It was finally submitted that since the 1st and 2nd respondents were unable to discharge the burden of proving their case the tribunals finding that the election was not conducted in substantial compliance with the Electoral Act and that 3rd respondent was not validly elected was a perverse conclusion and that it should be set aside. We were urged to answer this issue in the negative and uphold this appeal on this issue.

The 1st and 2nd respondents submitted that the tribunal determined that the appellant was not validly elected on the ground stipulated in S.145 (1) (d) ie that the 2nd respondent validly nominated candidate had been unlawfully excluded from the election. In the circumstances, the appropriate order to make is nullification of the election to provide opportunity for the unlawfully excluded candidate to contest the election. It was further submitted that the tribunal was right when it nullified the election. The fact that the tribunal cited S.147 (2) as the basis for the nullification instead of the more appropriate S.147 (1) does not materially affect the order of nullification which was well founded in law and supported by the facts and circumstances of this case. It was also submitted that in view of the ground on which the petition succeeded, the number of votes purportedly scored by the appellant at the voided election is completely immaterial. We were urged to resolve this issue in the affirmative.

In respect of the issue of non-joinder of the political parties the tribunal after extensively quoting and relying on the decision of the Supreme Court in Buhari Vs Obasanjo (2004) 1 EPR 112 stated at page 309 of the record that:-

”Based on the above we hereby hold that both the Action Congress whose candidate was returned as the winner and whose election is being challenged and other political parties and their candidates who were not successful in the election held on 14th April, 2007 into Kogi State House of Assembly Okene I Constituency ought not be joined as Respondent in this petition, they are not necessary parties.

On careful consideration of the decision of the Supreme Court in Buhari v. Obasanjo (Supra) and the provision of section 144 of the Electoral Act, 2006, I am in complete agreement with the holding of the tribunal that the political parties are not necessary parties to the petition. Their non-joinder does not affect the validity of the petition.

Section 145 (1) of the Electoral Act, 2006 provides:-

“145 (1) An election may be questioned on any of the following grounds.

(a) that a person whose election is questioned was at the time of the election, not qualified to contest the election:

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(e) that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

Section 147 of the Electoral Act, 2006 also provides:

“147 (1) subject to subsection (2) of this section, if the Tribunal or the court as the case may be determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the court shall nullify the election.

2. If the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score majority of valid votes cast at the election, the Election Tribunal or court as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.”

In our present case, the tribunal nullified the election on the ground that the 2nd petitioners validly nominated candidate had been unlawfully excluded from the election by virtue of S.147 (1) of the Electoral Act, the tribunal’s nullification of the election is quite in order. The fact that the tribunal relied on S.147 (2) as the basis for the nullification instead of S.147(1), in my considered opinion does not make the order a nullity this is because the tribunal did not mince words that it nullified the election because the 2nd petitioners validly nominated candidate was unlawfully excluded from participating in the election.

Citing wrong subsection of the law as the basis for the order of nullification does not affect the validity of the order. The answer to the second issue is in the affirmative. The tribunal was right in nullifying the election having determined that the validly nominated candidate of the 2nd petition was unlawfully excluded from the election.

The third issue is whether the trial tribunal was right by arriving at its judgment on facts pleaded by the 1st respondent in his petition when the tribunal had struck out his name from the petition as a party. This issue is virtually the same as the first. I have dealt with the matter in the first issue where I held that the tribunal was right by relying on the facts pleaded in the petition, even though the tribunal had struck out the name of the 1st petitioner. There is no need to go over the matter again. The answer to the third issue is in the affirmative. The tribunal was right by arriving at its judgment on facts pleaded by the 1st respondent in his petition when the tribunal had struck out his name from the petition as a party.

In the right of the above, the 1st appellants appeal ie Amoka’s appeal fails and is hereby dismissed. INEC and ors appeal also fails and is hereby dismissed.

The judgment of the tribunal is affirmed. The election into the Kogi State House of Assembly Okene I constituency is hereby nullified in accordance with the provision of S.147 (1) of the Electoral Act, 2006, INEC is hereby ordered to conduct a fresh election using a ballot paper which must include the name and logo of the 2nd respondent as soon as possible.

Parties to bear their own costs.

---

Other Citations: (2008)LCN/2751(CA)