Lucky M. Abaraonye V. Ray Emeana & 172 Ors. (2008)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A,
This is an appeal against the decision of the Governorship and Legislative Houses Elections Tribunal sitting in Imo State of Nigeria striking out the appellant’s petition on the 23rd day of August, 2007 on the ground that the petitioner failed to state the scores of the election.
The case of the petitioner hereinafter referred to as the “appellant” is that on the 14th day of April, 2007 election was held to determine the member representing Owerri North Constituency in the Imo State House of Assembly.
The appellant was one of the 5 candidates who contested the election and he did so on the platform of the All Progressive Grand Alliance (APGA) while the 1st respondent contested the election on the platform of the Peoples Democratic Party (PDP). The appellant’s case is that at the close of the polls on the said 14th day of April, 2007 no person was returned as elected because even though the election was duly held in 8 out of the 12 wards of the constituency the electoral body determined that the selection was inconclusive and scheduled fresh election in 5 out of the 12 wards of the constituency to be held on 28th April, 2007 but rather than hold any said fresh election in the 5 wards the electoral body proceeded to declare the 1st respondent as elected on the 28th April 2007. The relevant averments of the appellant on this issue are as contained in paragraphs 4,5,6,7,8,9.11 and 17 of the petition, hereunder reproduced for case of reference as follows:
“4. Election was fully held in 8 out of the 12 wards in the constituency and the candidates were duly scored votes as follows
a) Lucky M. Abaraonye 10809 votes
b) Ray Emeana 5118 votes
c) B.N. Mbata 1075 votes
e) Marcellinus Onuegwunwoke 278 votes
The petitioner shall rely on the form EC8A (1), showing the results from the polling stations as duly collated by the staff of the 2nd respondent.
- No person was immediately returned after the election and on the 26th day of April, 2007, the 3rd respondent issued a press release in which he declare that election in 5 wards in the constituency was inconclusive and scheduled the 28th day of April, 2007 as the date to conduct election in the said 5 wards.
- These wards are namely:
a) Obibiezena Ward
b) Emekuku Ward I
c) Emekuku Ward II
d) Obube/AgballaJUlakwo Ward
e) Obibi Uratta Ward
- On the 28th day of April, 2007, the 2nd respondent did not hold any election for the Owerri North State Constituency and the only election that was held in the constituency was the repeat Governorship election for Imo State.
- I made enquires for the 4th respondent on the reason the election in the 5 Wards did not hold as scheduled and his reply was that no materials were supplied to that effect and that further directives will be given from the headquarters of the 2nd respondent.
- All that the petitioner heard after the 2nd respondent failed to conduct the election as scheduled for the said 5 Wards on 25th April, 2007 was that the 1st respondent has been returned as winner of the election.
- Election was duly and properly held in 5 out of the 12 Wards in the Owerri North constituency. These wards and their results are contained in the form EC8A (1) duly collated by the staff of the 2nd respondent are as follows:
Ward APGA PDP
Orji 793 858
Egbu 127 224
Naze 79 798
Amakohiai Akwakuma 1210 587
Awakallhitte Ogada 864 375
Emil 2197 1470
Obibi Uratta I 1509 381
Obibi Uratta II 1174 425
Total 10809 5118
The petitioner shall rely on the form EC8A (1) and EC8B(1) used in arriving at the above results. The 2nd respondent is hereby given notice to produce them. The petitioner received some copies of these documents at the polling units and collation centres in these wards through his agents and shall also rely on those copies.
- Rather than conducting election in those 5 wards to conclude the polls in the constituency the next news that spread like wild fire was that the 1st respondent has been returned as winner of April 14th, 2007 election on the 28th day of April, 2007.”
On the 3rd day of August, 2007 the 1st respondent filed a motion on notice challenging the competence of the petition on 2 grounds, namely that it was not presented within time and that the petition did not comply with the requirements of paragraph 4(1) (c) of the First Schedule of the Electoral Act.
As required by the Practice Direction, the parties filed written briefs in support and opposition of the motion on notice. On 23rd August, 2007, the lower tribunal gave its decision dismissing the first ground of objection but allowed the second ground. It held at page 472 of the record, page 14 lines 17-20 of the ruling as follows:
“In paragraph 17 of his petition the petitioner pleaded that on 28/4/07, 1st respondent was declared winner of the election which held on 14/4/07. That declaration must necessarily be based on same result declared by INEC, the conductor of the election. That is the result a petitioner upon an election petition is required to plead by para. 4 of the 1st Schedule to the Electoral Act. We have looked all through the petition and we cannot find where those scores were pleaded … ”
Dissatisfied with this decision, the appellant has appealed to this court on the following one ground with particulars:
“(a) The learned trial tribunal erred in law when it held that the petitioner did not state the result of the election in the petition.
Particulars
(i) The result of the election was amply stated in paragraphs 4 and 11 of the petition.
(ii) The tribunal did not make a complete reading of the petition as enjoined by the law.
(iii) The decision is perverse and has occasioned a miscarriage of justice.”
Distilled from this ground is the appellant’s sole issue for determination of the appeal as follows:
“(a) Whether the learned lower tribunal was not wrong when it held that the appellant’s petition was incompetent?”
Learned counsel for the 1st respondent also formulated the sole issue for determination thus:
“Whether the petitioner/appellant complied with the mandatory provisions of paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2006.”
The 2nd -172nd respondents on the other hand through their learned counsel raise the following sole issue for determination:
“Whether the petitioner/appellant complied with the mandatory provisions of paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2006.”
It is observed that the sole issue raised by the 1st and 2nd – 172nd respondents are similar in content. The respondents directly address the complaint of the appellant.
On the 4/12/2007, this appeal came up for hearing. Parties who have earlier exchanged their respective briefs of argument adopted same.
Learned counsel for the appellant has urged this court to allow this appeal and remit the petition back to be heard on its merits by another tribunal. On their part, learned counsel for the 1st and 2nd-172nd respondents have urged the court to uphold the finding of the lower tribunal that the petitioner did not comply with the mandatory provisions of paragraph 4(1)(c) of the First Schedule of the Electoral Act and to dismiss the appeal.
The appellant in his brief of argument has submitted that the lower tribunal was wrong. That when a court is called upon to determine an objection in limine, the law is that the objector must be deemed to accept the averments in the originating process as correct.
The objector is not permitted to rely upon facts other than those contained in the process objected to. Reliance was placed on the Case of ANPP v. PDP & Ors (2004) All FWLR (Pt. 221) 1513: Ege Shipping & Trading Ind. v. Tigris Int. Corp.(1999) 14 NWLR (Pt.637) 70 at 84: Ejiogu v. Onyegocha & Ors. (2004) All FWLR (Pt.204) page 26 at 43: Goodhead v. Amachree (2004) 1 NWLR (Pt.854) 352.
It is contended that the parties having joined issues, the lower tribunal was under a duty to defer determination of the issue until proof is preferred by the parities in the course of hearing the entire matter by credible evidence. See Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398 at 416. It is further contended that in the face of the clear circumstances of the petition the said objection was a mere technicality without any substance, the trends the Supreme Court frowns at. Reliance was placed on the cases of Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481 at 453 and Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 423 at 508. It is urged, in the circumstances, that the appeal be allowed and order made for remittance of the case to another lower tribunal for hearing on its merits.
Learned counsel for 1st respondent has submitted that compliance with paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2006 is a mandatory requirement; as is a pre-condition for filing a competent and valid election petition. Reliance was place on the case of Udonte v. Bassey(1999) 5 NWLR (Pt. 604) 610: Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622 and Ibrahim v. Sheriff (2004) 14 NWLR (Pt. 892) 43 at 74. It is urged that the petitioner did not state unequivocally the person declared and returned as the winner of the election; thereby making the petition incurable defective for failing to meet the conditions precedent to the competence and validity of the petition. It is submitted 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 Independent National Electoral Commission (INEC), which has the statutory duty of conducting and announcing results. The case of Ojong v. Duke (2003) 14 NWLR (Pt. 841) 581 was referred to. It is urged that this court should disregard and discountenance the appellant’s arguments that the omission to comply with the provisions of and wordings of paragraph 4(1) (c) of the First Schedule to the Electoral Act of 2006 renders the petition a nullity. This Court is urged to uphold the finding of the tribunal that the petitioner did not comply with the mandatory provisions of paragraph 4(1)(c) of the First Schedule of Electoral Act and to dismiss the appeal.
It is the contention of the 2nd -272nd respondents that since the appellant in his petition did not state the scores of the candidates and the person returned by the electoral body that conducted the election, thereby complying with the mandatory provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006, the election petition filed is rendered void. It is explained that the case of Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481 relied upon by the appellant, the scores of the petitioner and the respondent, as announced by the electoral body, was stated by the petitioner. The issue was whether the petition should also state the scores of other candidates who participated in the election and the court of appeal rightly held it ought not to be the case.
The provisions of paragraph 4(1)(c) of the First Schedule of the Electoral Act 2006 states that an election petition shall state the holding of the election, the scores of the candidates and the person returned as the winner. These are what are often referred to as the “mandatory contents” of election petition. They are mandatory provisions because their non-inclusion in the petition will render the petition incompetent. Such non-compliance will run foul of paragraph 4(6) which provides thus:
“4(6) An election petition which does not conform with subparagraph (1) of the paragraph or any provision of that subparagraph is defective and may be struck out by the tribunal or court.”
This provision is important so as to enable the tribunal or court to be at home with the gist of the case especially as it regards the number of votes. Non-compliance with this paragraph is fatal to the petitioner’s case. See Udonte v. Bassey (1999) 5 NWLR (Pt. 604) 610. Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622 and Ibrahim v. Sherriff (2004) 4 NWLR (Pt.892) 43 at 74.
In instant case, the appellant in paragraphs 4 and 11 of his petition reproduced above stated the scores of the candidates in 8 out of 12 wards in the constituency. He failed to state the score of the candidates in the 12 wards in the constituency as declared by the electoral body, that is the Independent National Electoral Commission (INEC). He also did not state unequivocally the person declared and returned as the winner of the election. The only admissible evidence of the result of an election conducted in accordance with the Electoral Act of 2006 is the one from INEC, which has statutory duty of conducting, collating and announcing or declaring final results. See Ojong v. Duke (2003) 14 NWLR (Pt.841) 581. The 1st respondent in paragraph 5 of the affidavit in support of his motion, praying the tribunal to strike out the appellant’s petition, annexed a certified true copy of the declaration of result of the election duly signed by the returning officer, contrary to the deposition of the appellant in paragraph 3 of his counter-affidavit that result of the election was not declared as at 14/4/2007. It is my respectful view that the lower tribunal rightly held at page 472 of record thus:
“Even where a petitioner pleads the scores he believes are the authentic ones from his own angle, he has a duty to plead scores of candidates as declared by INEC.”
The tribunal went on to find that though the appellant pleaded his own version of the scores in 8 out of 12 wards in the constituency, he alluded (in paragraph 17 of the petition) to another result by INEC based on which the 1st respondent was declared and returned, but he did not plead same. See paragraphs 4, 5, and 17 of the petition reproduced above. Hence, the lower tribunal expressed its bewilderment at the absence of the proper pleading of the INEC result when it said at page 472 of the record thus:
“We have looked all through the petition and we cannot find where those scores were pleaded. But even if we take the scores pleaded at paragraph 4 of the petition as the INEC scores, which has not been so stated, we will still be hampered because it does not include the scores of all of 4 wards. Was the declaration made based on the 8 wards which results were supplied? We are not told.”
The appellant has argued that the alleged non-compliance was mere technicality which must not hamper the hearing of the petition on the merit, relying on the case of Ojong v. Duke (supra). Whilst I agree that the current trend is in favour of hearing election petitions on the merit. The facts still remains that election petitions are distinct from ordinary civil proceedings or criminal proceedings. It is distinctly precise. It is such that in certain circumstances the slightest non-compliance with the procedural rules, which would be cured or waived in normal civil proceedings, could result in fatal consequences in an election petition. An election tribunal is strictly governed and bound to adhere to the procedure laid down in the Electoral Act.
Paragraph 4(1)( c) of the First Schedule to the Electoral Act, 2006 is mandatory. The provisions are clear an unambiguous. I should give them their natural meaning. See Duma v. Adamu (1999) 4 NWLR (Pt. 598) 311 and Daily Times v. Amaizu (1999) 2 NWLR (Pt. 631) 439.
Paragraph 4(1)(c) being mandatory, non-compliance with it does not leave the lower tribunal with any discretion. See Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260 and Ezeobi v. Nzeka (1989) 1 NWLR (Pt. 98) 478.
In the circumstances, the appeal fails and it is dismissed. The ruling of the tribunal delivered on 23/8/2007 is hereby affirmed. I make no order as to costs.
Other Citations: (2008)LCN/2658(CA)
