Osita O. D. Nwankwo V. Alhaji Yusufu Abdullahi Atta & Ors (1999)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

The election into the State Houses of Assembly which took place throughout Nigeria on 9th January, 1999, took place also in Fagge Constituency in Kano, Kano State. After the Election, Alhaji Yusuf Abdullahi Atta was found to have polled 14.079 votes and Mr. Osita O. D. Nwankwo polled 13,398 votes. Dr. A.B. Haruna the returning officer in Fagge Constituency Kano State returned Alhaji Yusuf Abdullahi Atta as the member elected in Kano State House of Assembly for Fagge Constituency.

Mr. Osita O.N. Nwankwo disputed the return of Alhaji Yusuf A. Atta, and filed a petition before the Kano State Governorship and House of Assembly Tribunal. The petition is contained in pages 3-10 of the record filed in this appeal. It is dated 22nd January, 1999.

In it the petitioner cited Alhaji Yusuf A. Atta as the 1st respondent the Fagge L.G. Electoral Officer Alh. A. Gawuna as the 2nd respondent. The Fagge Constituency Returning Officer Dr. A.B. Haruna, 3rd respondent, and the Independent National Electoral Commission; as the 4th respondent. The petitioner alleged that the 1st respondent did not score the majority of valid or lawful votes cast at the election, and that it was he Mr. Osita who obtained majority of valid and lawful votes at the said election and had a right to be returned as the member for Fagge at the House of Assembly. The petitioner averred in the petition that the result of the election at the polling centre Dandali or Women’s Centre Fagge. A ward was implanted in favour of the 1st respondent by the wrongful addition of polling result purportedly from a 9th unit which the petitioner averred did not exist prior to the election and was not previously designated by the 2nd-4th respondents because only 8 units were previously designated for the said Dandali Women Centre. The petitioner averred that in the said centre he was assigned 37 votes and 1st respondent 444 votes. The petitioner also alleged “several electoral malpractices and irregularities by the respondent or their agent.” but for which the petitioner averred. “the petitioner would have scored the highest number of votes scored at the election.” He testified at the hearing of the petition as follows: “polling was still going on when thugs supportive of the 1st respondent charged in on the entire centre and scared away voters and the petitioner’s agents.” The 1st respondent filed a reply to the petition, and testified. He also filed a motion seeking an order of the tribunal to strike out the said petition for non joinder or necessary parties, or alternatively to strike out paragraphs 8(b), 9,10,11,12,14,16,17 and the particulars of each of the paragraphs. The motion is dated 25/2/99. The 2nd and 4th respondents also relied on a motion dated 25/2/90 and sought therein “an order of the tribunal striking out the petition” on the grounds that the agents of the 2nd and 4th respondent whose conduct are at issue are not joined in the petition.

Hearing in the petition commenced according to the record on 25th February, 1999. On 26th February, 1999, in the presence of the petitioner, the motions of both sets of respondent were taken. The issues of non-joinder or necessary parties were canvassed the respondents. The tribunal ruled on the motion as incompetent and dismissed both motion on 1st March, 1999. Hearing in the petition proceeded to judgment.

In the judgment of the lower tribunal on pages 98 – 109, the tribunal found as a fact that there were numerous irregularities, over-voting and falsification of results and cancelled the election in the nine units of Dandali Women Centre. The lower tribunal also set aside votes scored by candidates from the 9 units. In conclusion the lower tribunal directed the 4th respondent the Independent National Electoral Commission to conduct fresh elections. The lower tribunal ruled as follows: “The result of the election in these units will be added to the scores of the candidates 11.622 for APP candidate, 13,193 for PDP candidate and 518 for AD candidate and thereafter the candidate with the highest number of votes shall be declared the winner of the election in Fagge Constituency.” Earlier within the judgment the lower tribunal had ruled after some cancellations as above some auditions and deduction arrived at the following figures AD 51 votes, appellant 13.193 votes and 1st respondent 11.622 votes. Despite the above the lower tribunal ordered a fresh election in Dandali Women Centre. Neither the appellant, the 1st respondent nor the 2-4th respondents was satisfied with the judgment of the lower tribunal. The appellant appealed, filing four grounds and sought relief as follows:-

An order setting aside the decision of the honourable trial tribunal ordering for fresh election at the Women’s Centre.

An order declaring as elected the petitioner on a majority of valid votes cast at the election and as a member elect to Kano State House of Assembly representing Fagge Constituency.

In his brief of argument filed on 15th March, 1999 the petitioner appellant formulated two issues for determination, namely”

Whether having deducted the invalid votes and finding that the appellant had a majority of valid votes cast, the trial tribunal ought not to have declared him as elected in view of section 137(2) of Decree 3 1999. The appellant averred the issue is formulated from ground one of the notice of appeal concerning the finding of the lower tribunal which found on the issue of nine units in Women Centre. The second issue is

“whether the honourable tribunal was not precluded by law and in the state of pleadings from accepting and adding any votes to the correct totals of vote shown on Exhibit No.1.”

The 1st respondent filed a notice of appeal on 16/3/99, upon finding that the petitioner appellant had filed before him a notice of appeal on 15/3/99. The 1st respondent filed a motion dated 19th March, 1999. On 22nd March, 1999 and with the leave of court, the notice of appeal of 16th March, 1999 was deemed a cross-appeal. The two live grounds of appeal are contained in the record and numbered on folios 118 to 120. The 1st respondent is hereafter referred as cross-appellant. In his brief of argument, filed on 22nd March, 1999 they contain issues C.B. and A. in that descending order. The cross-appellant also adopted the issues formulated by the appellant and the following (a) was there sufficient evidence before the lower tribunal to justify the cancellation of the 9 units at Dandali Women Centre at Fagge A Ward in the Fagge Constituency (c) should not the lower tribunal have expunged from the records evidence complaining of the conduct of the presiding officers at Dandali Women Centre who were not parties to the suit. The 2nd, 3rd and 4th respondent filed their brief by leave of court on 22nd March, 1999. In it they averred as follows, “that the proper issues for determination, from the grounds of appeal and those of the cross-appellant, are;

(1) Whether the decision of the trial tribunal ordering for fresh election at Dandali Women Centre polling units was appropriate”

(2) Whether upon the leading and the evidence adduced the trial tribunal was right in holding that Exhibits P & Q were contained in Exhibit M?

(3) Whether the trial tribunal has acted on evidence adduced against the presiding officers who were not made parties. On issue 3, above-there is confluence of ideas with those of the cross appellant and indeed the brief of 2-4th appellants show that the issue derive from ground 2 of the cross appellant. Each of the appellant, cross-appellant and respondent advanced reasons and argument in support of the issues raised, I prefer and adopt the issues raised in the brief of the 2-4th respondents because they contain and express the issues formulated in the brief of the appellant and the cross appellant.

It is not in contest that all the briefs submitted together with the oral evidence tendered alleged that the election was replete with irregularities at various polling stations. The allegations were made in the petition before the lower tribunal and they were denied by the cross-appellant. It is the averment of the petitioner appellant that the alleged acts of irregularities were done at the various polling units. The plaintiff witnesses PW1, the petitioner and PW2, complained severally about the conduct of the presiding officers in the election. The statement of result of poll from EC8A were tendered, instead of another form said to be requisite. The petitioner impugned the conduct of the election at several named polling units. On page’s 45-49 of the record the petitioner appellant tendered several exhibits before the lower tribunal of alleged wrongful conduct of the election at various polling units presided over by the presiding officers. The petitioner/appellant complained in particular or over-voting, allocation of votes particularly in Dandali Women Centre. It is upon the allegations made against the returning officers in the said nine units in Fagge Constituency that the lower tribunal found as proved the irregularities, over-voting and other malpractice in the election which occasioned the ruling and judgment of the lower tribunal in making an order to cancel the election at Dundali Women Centre in the 9 units. Unfortunately however the presiding officers of the said nine units upon which the lower tribunal made such sweeping and damaging orders were not joined in the petition ab initio or at any time subsequently, the returning officers’ conduct at the election has been criticised and condemned without hearing from them. This ordinarily is against the rule of natural justice. In addition Section 133 (2) of the State Government (Basic Constitutional and Transitional Provisions) Decree 1999 provides as follows:

“The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complained of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, the electoral officer, presiding officer, returning officer or that other person shall for the purpose of the Decree be deemed to be a respondent and shall be joined in the election petition as a necessary Party.”

Before considering whether or not the appellant should have been returned as the winner of the election, after the lower tribunal had made its unsolicited addition and subtraction on the votes in Fagge Constituency, it is imperative to consider whether or not in view of the above cited provisions of the law the proper and necessary parties have been joined. Four respondents are named in the petition which culminated in this appeal, none of them is the presiding officer at any of the nine units in Fagge Constituency; admittedly there should have been 8 units previously, viable by INEC’s declaration. The excess by one is an issue bordering on criminality see sections 109 and 110 of Decree No 3 of 1999 on which the presiding officers should have been called to question but they were not joined, and the law cited below required by compulsion that they be joined. The failure to do so rendered the petition incompetent and the lower tribunal should not have proceeded without necessary parties before it. It simply lacked jurisdiction to do so. It is desirable at this stage to consider and pronounce on the language of section 133 (2) of Decree No 3 of 1999. The word shall used in a statute such as those in the State Government (Basic Constitutional and Transitional Provisions) Decree 1999 are mandatory and not permissive. My respectful view is that it allows for no option to the learned Justices at the lower court. If the Justices found themselves in a position, as they did in this case where they had to pronounce on the conduct of the presiding officers in nine of the ten units of Fagge Constituency and of other officers in the election in Kano State, the demands and the ethics of justice, and indeed in this case, the provisions of the Decree No 3, demand that the affected and necessary parties should have been before the Justices. The provisions of the Decree are the source and the basis of the jurisdiction of the learned lower tribunal Justices. They should give effect to it. See Anambra State Government and 5 others v. Nwankwo (1995) 9 NWLR (Pt. 418) page 245.

I have looked through the whole record; the respondent reply to the petition the cross-appeal and the 2nd-4th respondents’ brief and the 1st respondent’s reply to the petition. I did not see where any of the parties named above seek a relief of a bye-election in Fagge Constituency. I have in fact pondered on whether the Decree No.3 made any such provisions. I did search through the entire provisions and I failed to find any such provision which gives validity to the order in the judgment of the lower tribunal to conduct an-election in one of many constituencies in a State. I did to no avail. I believe it does- not exist.

It is in any case not the practice of a court of law or tribunal to grant reliefs like Father Christmas for prayers not sought for the parties before it. See Bola Ige v. Olunloye & Ors (1984) 1 SC 258 at 276; (1984) 1 SCNLR 158; Alhaji Tijani Mohammed v. Mallam Ibrahim Ali & Ors (1989) NEPLR 110 at 112; (1989) 2 NWLR (Pt.103) 349. The order to INEC, the 4th respondent to conduct a bye election in Fagge Constituency in Kano State alone is not only not contained in any relief sought by any of the parties before the court, it is not based on the law creating the election petition, and the tribunal, Decree No.3 of 1999. It is not supported by the law. For the reasons canvassed above, the appeal is misconceived because the petition on which it is based is incompetent. The necessary parties affected by the decision of the lower tribunal are not as required by the law joined, and an order made by the lower tribunal is not based on applicable law. The appeal is therefore dismissed.

The order of the lower tribunal is to the 4th respondent to conduct a bye election in Fagge Kano Constituency is hereby set aside. The cross-appeal of the 1st respondent is allowed and Alhaji Yusuf Abdullahi Atta is the person lawfully returned as the member for Fagge Constituency to the Kano State House of Assembly. There will be costs of N1000.00 to the 1st respondent.

Other Citations: (1999)LCN/0578(CA)