Mr. Olaniyan Waheed Olaniyi V. Mr. Salam Fatai Adetunji & Ors (2008)
LawGlobal-Hub Lead Judgment Report
M.D. MUHAMMAD, J.C.A.
The House of Assembly Election in Oyo State was held on 14th day or April 2007. The Appellant and 1st Respondent herein along with other candidates contested the Iseyin/Itesiwaju seat in the said election. Whereas the Appellant was sponsored by the Peoples Democratic Party, the 1st Respondent contested on the platform of the Action Congress. Candidates other than these two also vied for the same seat on different political platforms. Appellant was declared and returned the successful candidate in the election by the 2nd Respondent. 1st Respondent challenged Appellant’s election and return at the Election Petition Tribunal silting at Ibadan. Paragraph 32 of the Petition outlined the following grounds:-
“32 (a) The Election of the 1st Respondent was invalid by reason of corrupt practices, violence or non-compliance with the provisions of the Electoral Act 2006.
(b) The 1st Respondent was not duly elected by majority of lawful votes cast at the election of 14/4/07
(c) The 1st Respondent was not qualified or disqualified from contesting the election of 14/4/07.
At the pre-trial conference held by the election petition tribunal on 13-6-07, and all parties thereto were in attendance, grounds 1 and 2 of the Petition were merged and a single issue was agreed upon for the purpose of determining 1st Respondent’s petition. The issue centred on the absence of the results in respect of units 11 and 13 of Ward 7 of the Iseyin/Itesiwaju House of Assembly seat contested by the Appellant, 1st Respondent as well as other candidates on different political, platforms. The 3rd ground in the Petition that had to do with the qualification of the Appellant to contest the election having been abandoned did not abide the Petition.
The Petition proceeded to full trial on the basis of the single issue agreed upon by the parties. In the Tribunal’s considered judgment, 1st Respondent’s petition was upheld and Appellant’s declaration and return nullified. Being dissatisfied, the Appellant who was the 1st Respondent at the tribunal has appealed against the decision on notice dated 6/7/07 containing four grounds.
At the hearing of the Appeal on 21/11/07 even though all parties to the Appeal had been served with hearing notices against that date, none was physically present. The Appellant and 1st Respondent, the only two who had filed their briefs of argument were however represented by Counsel. The others had neither filed their briefs of argument nor were they represented by Counsel. The Appeal was heard without these others.
Learned Counsel for the Appellant and the 1st Respondent adopted their respective briefs which include Appellant’s reply brief. The briefs had been duly filed and exchanged. Appellant’s brief and the reply brief were filed on 22/8/07 and 6/9/07 respectively. 1st Respondent’s brief, on the other hand, was filed on 31- 8-07.
The lone issue identified in the Appellant’s brief as having arisen for the determination of the appeal reads:-
“1 Whether the tribunal rightly nullified the election of the Appellant when he was never found-responsible for violence more so that the election was conducted in substantial compliance with the provisions of the Electoral Act 2006”.
The lone issue is distilled from grounds 1, 2, and 3 in the Appellant’s Notice. Appellant’s 4th ground of Appeal that has been abandoned is hereby struck out. 1st Respondent’s single issue reads:-
“Whether or not absence of Result in Units 11 and 13 of Ward 7 of Iseyin Local Government Constituted substantial non compliance thereby leading to nullification of election and return of the Appellant in the House of Assembly Election of 14th April 2007”.
Following a notice of preliminary objection filed by the 1st Respondent pursuant to Order 3 Rule 15 or the old Rules of this Court, (now Order 10 Rule 1 of the 2007 Court of Appeal Rules) learned Counsel to the 1st Respondent moved and urged the court to strike out the appeal. He contended that grounds 1 and 2 as well as the sole issue formulated by the Appellant for the determination of the appeal is incompetent. The two grounds of appeal have offended Order 3 Rules (2) and 4 of the 2002 rules (now Order 6 Rules 2 and 3 of the 2007 Rules). The grounds are vague and do not arise from the decision being appealed against. The grounds have neither attacked any specific findings of the tribunal nor made reference to any specific error and/or misdirection in the tribunal’s judgment that has occasioned any miscarriage of justice. Learned Counsel has urged that the incompetent grounds be struck out. He relied on Robert Ikweki & 2 Ors Vs. James Ebele & 1 Ors (2005) vol. 15 WRN 42 at 49, Mercantile Bank of Nigeria Plc & 1 Or Vs. Nwobodo (2005) Vol. 40 WRN 1 at 8-13; Kabiru Vs. Ibrahim (2005) 5 WRN 151 al 161 and Kadzi International Ltd. Vs. Kano Tannery Co. Ltd. (2004) 12 WRN 131 at 135 to support his submission.
Learned counsel further contended that Appellant’s sole issue did not flow from any of the two grounds of appeal which defect on the authority of N.D.I.C. Vs. Okem (2004) 50 WRN 1 at 35 has rendered the issue -incompetent. It was argued that since both the grounds of appeal and the issue for the determination of the appeal are incompetent, it follows that the appeal is in incompetent too. Learned 1st Respondent’s Counsel urged that the appeal be struck out.
The Appellant reacted to 1st Respondent’s preliminary objection in his reply brief dated and filed on 6th September 2007, Therein, learned senior Counsel N.O.O. Oke for the Appellant submitted that the era of technicalities in adjudication is gone. Upholding 1st Respondent’s objection would amount to allowing undue technicality at the expense of substantial Justice. In determining whether or not a ground of appeal is incompetent, the senior Counsel contended, the emphasis is on establishing whether or not the other side knows and is not deceived or misled by the complaint contained in the particular ground of appeal.
Once the Respondent is aware of the complaint raised in the ground, the ground is competent. Senior Counsel relied on the decisions in Agbamu v. Ojili (2004 5 NWLR (pt.867) 540 at 563 – 564 and Aderounmu v. Oluwu (2004) 4 NWLR (Pt.652) 253.
Learned senior Counsel further submitted that the two grounds of appeal did not leave 1st Respondent in doubt as to the complaints they encapsulate. The Issue for determination formulated by the Appellant from the grounds is to the effect trial the tribunal has no basis for nullifying the entire results of the election on the basis of the non holding of election in two polling units out of the total that made up the entire constituency and all the more so when the violence, electoral box snatching and other irregularities that made the holding of election in the two polling units impossible was neither traced to nor authorized by the Appellant. In any event, the court of Appeal for the sake of doing substantial justice to both sides, proffered senior counsel, is free to formulate its own issue and determine the appeal on the basis of that issue. Learned senior Counsel supported his contention with the case of Labiyi Vs. Anretiola (1992) 10 SCNJ 1 at 11. He concluded that the preliminary objection which lacked merit be dismissed.
Grounds 1 and 11 under consideration with their particulars read as follows:-
“1. The Election petition Tribunal erred in law in nullifying the election of 14th April, 2007 into the Oyo Slate House of Assembly for Iseyin/Itesiwaju Constituency on the ground that, violence prevented conduct of election in units 11 and 13 of Ward 7 without, appreciating that non-conduct of election in 2 polling units out of 249 polling units for the whole constituency could not warrant nullification of the entire result, which error/decision has now occasioned a grave miscarriage of Justice.
(i) Tribunal cannot lawfully nullify the result of 247 polling units where elections went on smoothly.
(ii) Nobody complained about the conduct of election in the 247 polling units where result was nullified by the order or the Tribunal
(iii) None of the contestants had results for units 11 and 13 of the Ward 7 credited to him.
(iv) Tribunal ought not to have disturbed the result of the election in the 247 polling units where election was smoothly conducted.
- The Election Petition Tribunal erred in law when it nullified the entire result of 247 polling units, when there was no evidence to connect the 1st Respondent with the violence or irregularity that took place in units 11 and 13 of Ward 7 of Iseyin Local Government.
Paticulars
(i) Petitioner did not prove and Tribunal did not find that 1st Respondent was responsible for the violence that took place at units 11 and 13 of Ward 7;
(ii) of Having failed to prove that 1st Respondent was responsible for the violence, the Tribunal wrongly nullified the Election of the Respondent;
(iii) By annulling the entire election, the Tribunal has made the Petitioner to suffer for what he did not do”.
Appellant’s first ground of appeals a complaint that the tribunal’s decision nullifying his election and return on the basis or the non-holding of elections in two out of 147 polling units in the constituency is illegal and unjust. The votes in these polling units, units. 11 and 13, vis-a-vis those where elections successfully took place were not that substantial to have had the effect the tribunal ascribed to the failure of the elections holding in the two polling units.
In his 2nd ground of appeal, Appellant’s grouse is that the nullification of the election, by the tribunal in the absence of any evidence connecting him with the violence that made it impossible for the election to hold in the two particular units out of the polling units that made up the entire constituency.
These two grounds cannot be said to have been formulated in “nubibus”.
They are grounds “firma terra” constituting a direct challenge on the ratio or the decision being appealed against. The Appellant in these two grounds is asking us to consider the legality or the nullification or his election and return following the tribunal’s decision on the violence which made the holding of election in the two polling units impossible as well as the effect it had on the results of the election in the entire constituency.
Mr. Lawal’s further objection is that the two grounds of appeal are “vague” and “general” in terms and in consequence unreasonable and incompetent.
Something is vague see the 6th edition of the Black’s Laws Dictionary, if it is not susceptible of being understood. By this meaning, there seems to be tremendous wisdom in the submission of learned senior Counsel to the Appellant that since Appellant’s two grounds are clear and have left the 1st Respondent in no doubt as to the complaints they convey, they are not “vague”, “general”, “unreasonable” and resultantly incompetent. I agree with the Learned Senior Counsel. Since the grounds are clear and susceptible of being understood, 1st Respondent’s objection on the ground that they are vague must invariably fail. The two grounds on examination have, in full compliance with Order 6 (2) and (3), concisely and under distinct heads given precise information and sufficient notice of the nature of the complaints the Appellant has against the judgment. These are valid grounds of appeal. See Agbamu v. Omi supra Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16; British Petroleum West Africa Ltd v. Allen (1962) 1 All NLR 645 at 649; Umoh Vs. Industrial Training Governing Council (2001) 4 NWLR (pt.703) 281.
The lone issue the Appellant distilled from grounds 1, 2 and 3 in his notice of appeal which issue 1st Respondent Counsel also submitted is incompetent for not arising or flowing from grounds 1 and 2 reads;
“1. Whether the tribunal rightly nullified the election of the Appellant when he was never found responsible for violence more so that the election was conducted in substantial compliance with the provisions of the Electoral Act 2006”.
A thing is said to arise from another if it ‘originates’, ‘springs’ or ‘results’ from that other. The word ‘relate’ as defined also in Black Law Dictionary means to stand in some relationship. In the case at hand the contention of the Learned Counsel to the 1st Respondent is that the issue formulated by the Appellant for the determination of this appeal is incompetent since it neither ‘springs’ or ‘originates ‘ from the grounds nor can the issue be said to stand in any “association”, “connection”, or “relationship” with the grounds of appeal. It does not require a hard look at both the grounds of appeal and the Appellant’s lone issue to conclude that they stand in definite relation to each other. The two are ‘connected’ ‘allied’ and akin to themselves. Learned Counsel to the 1st Respondent is, therefore, wrong in his contention that the issue is incompetent having not arisen and/or because it is not related to the grounds of appeal. The issue must endure having arisen or because it flows or “relates” to the grounds of appeal from which it is distilled. Sec Ugo Vs. Obiekwe (1989) 2 SC (Pt.11) 41 and Omo Vs. JSC, Delta State (2000) 7 SC (pt. 11) 1. It is so held. In sum, 1st Respondent’s objection is, being without merit, accordingly overruled. The appeal being competent shall be heard on its merit.
In arguing the appeal, Learned senior Counsel for the Appellant posits that by their pleadings and the result of the pre-trial conference, parties had agreed that the tribunal was to try 1st Respondent’s Petition squarely on the sole issue of the non-holding of election in units 11 and 13 of Ward 7 in Iseyin Local Government.
The essential aspect of the issue was whether Appellant was responsible for the Violence that made it impossible for the election to hold in the two units and whether the non-holding of the election in the two units had substantially affected the entire election in the constituency to warrant its nullification.
Learned senior Counsel contends that the tribunal’s failure to make a specific finding as to whether the appellant and/or his agents were responsible for the violence that marred the election in the two units was fatal to the tribunal’s decision. He emphasized that thuggery and violence in the conduct of election constitute criminal acts and 1st Respondent had to link the Appellant with such acts by adducing credible evidence and satisfying the tribunal beyond reasonable doubt if he was to succeed. Since 1st Respondent had failed to so link the Appellant with these criminal acts which made the holding of elections in units 11 and 13 Impossible, the tribunal cannot in law hold the Appellant responsible for the acts, Inter alia, Learned senior Counsel relied on the decisions in Oyetolu v. Durosinmi (2001) NWLR (pt. 738) 1 at 4; Nnadu Vs. Ibom (2004) 16 NWLR (Pt. 900) 614 at 635; Ayua Vs. Adasu (1992) 3 NWLR. (Pt. 231) 598 at 611; Niger Progress Ltd. Vs.. North East Line Corporation (1989) 3 NWLR (Pt.107) 68 and Bamgboye Vs. University of Ilorin (1990) 8 NWLR (pt. 207) 1 at 29; Adeniran Vs. Ladapo & Ors (1991) 1 LRECN 110 at 112 and Nuhu Musa & Or v. National Electoral Commission & 5 Ors (1989)1 NEPLR 20 at 36 to buttress his submission.
Lastly, learned senior Counsel contends that even where 1st Respondent had successfully established the acts of violence and thuggery and linked the Appellant with the criminal acts he must further prove that the non-holding of elections in the two units had substantially effected the entire elections to warrant its nullification.
Learned, Counsel argues that 1st Respondent had not discharged this burden and on the authority of the decision in Sorunke Vs. Odebunmi (1960) SCNLR 414 at 417 the tribunal’s decision to the contrary being perverse should be set aside.
On the whole, learned senior counsel urged that the appeal be allowed. Bayo Lawal for the 1st Respondent agrees with learned senior counsel N.O.O. Oke in part. He concedes that parties had, at the pre-trial conference, agreed to narrow the issue raised by 1st Respondent’s Petition and asked the tribunal to determine the petition on the basis of the narrow issue. Mr. Bayo’s point of departure however is that 1st Respondent never accused the Appellant as the perpetrator of the violence and act of thuggery. 1st Respondent’s case before the tribunal, argues Mr. Lawal, was that violence had made it impossible for the election to hold in units 11 and 13 of Ward 7 in Iseyin Constituency and that the non-holding of elections in the two units had substantially affected the election in the entire constituency. He contends that the issue of violence was ‘tangential’ and 1st Respondent needed not have proved it beyond reasonable doubt to make out his case. 1st Respondent, Mr Lawal submits, had proved the non-holding of elections in the two units and the substantial effect that had on the overall election. The tribunal is right, concludes Mr. Lawal, to have found for the 1st Respondent and ordered bye-election. Learned Counsel relies on Alaki Vs. Sha’abu (2003) WLR 38 at 48; Ezike Vs. Ezenowu (1992) NWLR (Pt. 236) 562; Ojukwu Vs. Dr. Onwudinwe (2007)3 EPR 892 at 900; Oputch Vs. Ishida (1993) 3 NWLR (pt.279) 34 at 52, Onoh Okey (1992) 5 NWLR (pt. 602) 240, at 248 and urges us to dismiss the appeal.
In paragraph 4.1 of the 1st Respondent Brief, Mr. Lawal of Counsel submitted inter alia thus:-
“My lords as was the case at the lower tribunal, the main issue or case of the petition centred on the effect of inability of the 2nd to 10th Respondents – to conduct election in units 11 and 13 of Ward 7 Iseyin Local Government, to the overall result declared by them in limine, we wish to submit with respect that the case of the 1st Respondent was not built around the personalities of who perpetrated or authorized the perpetration of violence in units 11 and 13 of Ward 7 Iseyin Local Government. Rather, the 1st Respondent contended that the 2nd to 10th Respondents ought not to declare and return the Appellant as the winner of the election on the ground that irregularities and violence in the two units amounted to substantial non compliance to Election Act 2006”.
(underlining supplied for emphasis)
The forgoing unmistakably captures the case 1st Respondent pleaded and agreed to establish as what entitled him in law to the reliefs he asked and was granted to him by the tribunal. The issue raised by this appeal is that 1st Respondent’s case as pleaded and agreed upon, even when made out, did not legally prove anything against the Appellant, to justify the nullification of Appellant’s election and subsequent return by the 2nd Respondent.
In paragraphs 12, 13, 14, 29 and 30 of the petition, 1st Respondent had averred that the violence and irregularities which marred the conduct of elections at polling units 11 and 13 of Ward 7, Iseyin were perpetrated by PDP thugs led by one Yinusa Kunmi Mustapha a prominent member of PDP, the platform that sponsored the Appellant. 1st Respondent never pleaded that the violence and irregularities which constituted the ground of his petition were perpetrated either by the Appellant, his agents or such others whose acts the Appellant subsequently blessed, endorsed or acknowledged. The devastating blow in Mr. Oke’s submission begins to manifest given these crucial averment in 1st Respondent’s pleadings. The acts of violence, ballot box snatching and other electoral irregularities of the PDP thugs an: offences contrary to Section 125 (1) (j), Section 135, Section 136(1) (j) and Section 138 (a) of the Electoral Act 2006. The contention of learned senior counsel for the Appellant is that 1st Respondent who had neither proved these acts on the part of the PDP thugs nor traced the acts to the Appellant cannot legally rely on them to have the Appellant’s election and return nullified. I agree with learned senior counsel. It must also be conceded to learned senior counsel that the Appellant, had these criminal acts on the part or the PDP thugs been established, could still not be held responsible for what the thugs did unless it had been further proved that the Appellant or his agents were aware of or had subsequently acknowledged those illegal acts.
One’s examination of the testimonies or the witnesses called by the two silks for or against the petition failed to reveal why the tribunal should prefer the story of one side to that of the other on the violence and thuggery 1st Respondent made the ground of his, petition. The connection or link of the Appellant with these criminal acts is definitely unavailing. It remains the law that a candidate at an election cannot be held responsible for the criminal behavior of others which behavior he did not know of, authorized or subsequently ratified. Courts have been consistent in this resolve.
In Anazodo v. Audu (1999) 4 NWLR (pt.600) 530; Musdapher JCA (as he then was) rising to an occasion similar to the case at hand stated the law on the point thus:-
“There is no doubt that somebody has procured salt in sachets bearing the name, picture and logo of the 1st Respondent with words amounting to treating. But the question remains, can any reasonable person hold the 1st Respondent criminally responsible. In Nubu Vs. Musa’s case supra, the Court of Appeal per Adio JCA (of the blessed memory) as he then was, held that clear unequivocal proof is required before a petitioner can establish a case of bribery. Suspicious however strong is not sufficient, and the mere fact that somebody else committed the crime and bribed other persons to vote for a particular candidate is not enough nor is it conclusive, it has to be shown that either the candidate who is alleged to have bribed or his acknowledged agent, or that authorized what was done or subsequently ratified it”.
A candidate in an election cannot be held responsible for what people did in the form of unsolicited aid of which he or his aknowledged agent were ignorant.”
(underlining, supplied for emphasis)
In Yusuf v. Obasanjo (2005) 18 NWLR (pt. 956) 96 at 1(4) and 174- 175, the Supreme Court also held that a Party to an election would not be held accountable acts of confusion, intimidation, violence and corrupt practices perpetrated, by others who were on frolics of their own. For the Respondent in such a petition to be made accountable it must be shown that the perpetrators of the criminal acts during the election were acting on the instruction of the Respondent or were his agents or that the acts were done with his express or tacit approval. Sec also Adeola v. Owoade (1999) 9 NWLR (Pt. 617) 30; Falae v. Obasanjo (No1) 1999 4 NWLR (pt.599 435 and Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1.
The issue for the determination of this appeal is a double barreled one. The second limb of the issue questions the decision of the lower tribunal which nullified Appellant’s election for acts which neither substantially affected the overall results of the election nor constituted a substantial negation of the principles of the Electoral Act under which the election was conducted. In making these submissions, the learned senior counsel has brought to the fore the provision of Section 146(1) of the Electoral Act. He argued that the effect of the non holding of elections in two units out of one hundred and forty seven polling units which made up the Iseyin House of Assembly Constituency was neither substantial enough on the overall results of the election nor constituted such a substantial breach of the election Act to Justify the decision being appealed against. Section 146(1) of the Electoral Act 2006 provides:-
“An Election shall not be liable to be invalidated by reason of non-compliance, with the provisions of this Acts if it appears to the Election Petition Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the Election”.
In Buhari Vs. Obasanjo (2005) 13 NWLR (pt.941) at 264-265, the Supreme Court in interpreting Section 135 (1) of the Electoral Act 2002 which is materially the same with Section 146 (1) of the 2006 Electoral Act restated its earlier position in Sofunke Vs. Odebunmi (1960) SCNLR 414 at 417-418 and Ojukwu Vs. Onwudiwe (1984) 1 SCNLR 247 at 105-106 to the effect that for a petitioner in an election petition to succeed he or she must prove not only the breaches the Respondent whose election the wants the tribunal to nullify committed, the petition must further prove the substantial effect the breaches had on the overall result of the election as well as the fact that the breaches had made substantial compliance with the principles of the Electoral Act impossible”
We must also not forget the import of Section 138(1) of the Evidence Act in election matters, the scope of which was considered by Bello JSC (as he then was and now of blessed memory) in Nwobodo v. Onoh (1984) 1 SCNLR thus:-
” The scope of Section 137 (now Section 138(1) of the Evidence Act, may be summarized: where in an Election Petition the Petitioner makes an allegation of a crime against a Respondent and he makes the commission of the crime the basis of his Petition, the subsection Imposes strict(page 16 missing) (c) that the occurrence of the illegal acts had made the conduct of the election in substantial compliance with the principles of the Electoral Act impossible.
B and C above, per the decision in Buhari v. Obasanjo supra, are to be proved on the balance of probabilities.
In the case at hand 1st Respondent did not successfully prove the fact that the criminal acts of the PDP thugs which led to the non-holding of elections in the two polling units were traceable to or acknowledged by the Appellant. This was the first hurdle 1st Respondent had to prove before satisfying the two other requirements provided for by virtue of Section 146(1) of the Electoral Act. Having failed to establish the first requirement, it was impossible for 1st Respondent to also successfully prove the other requirements. The Petition had not been made out!
See Haruna v. Modibbo (2004) 16 NWLR (pt. 900) 487; Anazodo Vs. Audu (1999) 4 NWLR (Pt. 600) 530; Ayu v. Adasu (1992) 3 NWLR (pt.231) 598. The tribunal had; in the absence orally of the requirements the Respondent in Law must meet, returned n perverse decision. Learned senior counsel is right that such a decision must be interfered with Appellant’s lone issue which has succeeded is accordingly resolved in his favour. The Appeal is allowed. The decision of the tribunal is hereby set aside.
The election of the Appellant and return by the 2nd Respondent are upheld.
Appellant is entitled to cost or this Appeal put at N20,000:00k against the 1st Respondent.
Other Citations: (2008)LCN/2659(CA)
