Prince Collins Eselemo V. Hon. Solomon Funkekeme & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ZAINAB A. BULKACHUWA, J.C.A.
This is an appeal against the ruling by the National Assembly/Governorship and Legislative House Election tribunal, Delta State delivered on the 4th day of May, 2005.
The Petitioner/Appellant was a candidate in the election held on 9/5/2003 to the Delta State House of Assembly as a member representing Burutu south constitutuency under the platform of the Justice Party (JP). He contested with 4 others contestants amongst who was the 1st Respondent who was returned as winner of the election.
Dissatisfied with the election result, the petitioner filed a petition before the said Legislative Houses Election Tribunal, Delta State on the 7/6/2003 against the 1st Respondent and 5 others.
The Petitioner based his petition on two grounds which were improper election involving voting, counting, collation of results of valid votes in any of the five wards of Burutu South constituency and that the election was marred by fraud and/or grave irregularities contrary to the provisions of the 2002 Electoral Act.
The Petitioner sought for the following reliefs from the Tribunal;
- A DECLARATION that the Delta state House of Assembly, Burutu South Constituency election was not properly held on the 9th of May, 2003 according to the Electoral Act, 2003 (sic).
- AN ORDER NULLIFYING the announcement of the 1st Respondent by the 4th Respondent as the winner of the Delta State House of Assembly, Burutu South Constituency election conducted on the 9th of May, 2003 (sic).
- AN ORDER canceling or directing the cancellation of the fictitious and false results announced by the 3rd and 4th Respondents on the 9th May, 2003 proclaiming the 1st Respondent as the winner.
- AN ORDER for fresh elections into the Delta state House of Assembly, Burutu South Constituency.
Upon being served with the petition the 2nd – 6th Respondents in an application filed on the 24/6/2003 applied that the petition be struck out for being incompetent for non-joinder of necessary parties and for non compliancy with the mandatory provision of the Electoral Act, 2002.
The lower Tribunal heard the parties on the Preliminary objection of the 2nd – 6th Respondents and in a considered ruling delivered on 4th May, 2005 struck out the Petition. The Petitioner being dissatisfied with the said ruling has now appealed to this court on one single ground of appeal on the 16th May 2005 and with leave of court granted on the 11th April, 2006 the Appellant filed 5 additional grounds of appeal.
As is the practice of this court parties filed and exchanged briefs of argument. In the Appellant’s brief, he raised these issues for the determination of the appeal,
- Whether the election petition is incompetent having regard to Section 133 and 134 of the Electoral Act, 2002.
- Whether the Tribunal was justified in striking out the petition.
The 1st Respondent identified the following issues in his brief of argument;
- Whether the Election Tribunal was not in error when it struck out the entire petition on the ground of non-joinder of necessary parties.
- Whether fraud or grave irregularities’ is known to law as a ground for challenging an election under Section 134 of the Electoral Act, 2002.
The 2nd – 6th Respondents also formulated two issues for the determination of this appeal. These issues are;
- Whether or not the petition which was based on malpractices, irregularities, fraud and forgery in the conduct of the election but which did not joined (sic) the affected presiding officers as parties to the petition is not incompetent and or unmentionable by the petitioner.
- Whether fraud and grave irregularities is a ground for challenging an election petition under section 134 of the Electoral Act, 2002.
The two issues as identified by the two sets of respondents all relate to the 1st issue raised by the Appellant, I will accordingly in the determination of this appeal apply the issues raised by the Appellant.
The Appellant in his brief filed with the leave of court on 18/4/2006 submits on the 2 issues that the lower tribunal erred in striking out the petition for non joinder of necessary parties for as he points out the
petitioner was complaining against undue return and in the said petition the necessary party is the returning officer who as the 4th Respondent is a party on the record.
That the petitioner never complained of the conduct of the presiding officers for no election was conducted in compliance with the provisions of the Electoral Act 2002 due to the corrupt practice of the 1st Respondent and others.
That the Appellant having not complained against the presiding officers, Section 133(2) of the Electoral Act 2002 cannot be invoked to make them parties.
The Appellant also contends that ground 2 of the Appellant’s/Petitioner’s petition comes within the purview of Section 134(1)(b) of the Electoral Act 2002 being complaints of corrupt practices by the Respondents and non compliance with the provisions of the Act. That the lower tribunal was wrong to have insisted that the ground should have been couched in the ipsisima verba of the section. That it is enough if words conveying the effects of Section 134 of the Act are used as was done by the petitioner in the petition.
The Appellant also submits that the lower tribunal having found that the presiding officers were not joined as parties ought to have granted an amendment to include the names of the presiding officers in the interest of justice as it will not be a case of introducing fresh matters after the stipulated time for filing the petition. He urged us to allow the appeal and remit the case back to another tribunal for hearing and determining the petition on the merit.
In the 1st Respondent’s brief filed on the 21/4/2006 he submits on the first issue that the petitioner’s petition is grossly incompetent for non-joinder of presiding officers of the units where the petitioner alleged irregularities, malpractices, non-voting and falsification of election results. That these allegations whether categorically stated or not, are allegation directed against the presiding officer of the polling units who ought to be joined in the petition as Respondents. That failure to so join them is fatal to the petition since the tribunal cannot make an order or give judgment against a party that was not before it.
On issue two the 1st Respondent submits that the provisions of Section 134 of the Electoral Act, 2002 is very clear and unambiguous and did not make “Fraud and or grave irregularities” as one of the grounds for challenging an election. He pointed out failure by the petitioner to comply with the stipulated form of the said provision renders the ground of the petition incompetent. He urged us to so hold and dismiss the appeal as lacking in merit.
The 2nd – 6th Respondents in a joint brief filed on the 21/4/2006 submitted on issue one that the petitioners complaint against the election of the 1st Respondent before the lower tribunal is clearly that of electoral malpractices as he alleged that election did not hold in the polling station, allegations of over-voting or alteration or election results where elections were held. He contends that to answer these allegations, the presiding officers in respect of the polling stations in the wards complained about are mandatory Respondents as provided for by Section 133(2) of the Electoral Act, 2002. That the petitioner was therefore under a duty to join each of the presiding officers in each of the polling stations in each of the polling stations in the wards complained against. That failure by the petitioner to join them as parties renders the petition not sustainable and incompetent.
On the second issue the 2nd – 6th Respondents submitted that the second ground of the petition titled “fraud and grave irregularities” has gone outside the contemplation of Section 134 of the Electoral Act 2002 which rendered the second ground incompetent and was rightly struck out by the lower tribunal. He urged us to uphold the decision of the lower tribunal and dismiss the appeal.
The argument of the Appellant on the 1st issue was that the petitioner was not complaining about the conduct of the presiding officers as no election was conducted in compliance with the Electoral Act in the wards complained of, the provisions of Section 133(2) of the Electoral Act can therefore not be invoked to make them parties to the petition.
Where an election is said to be conducted there is always the presumption of correctness and authenticity of the results as released by the electoral body, the courts have always held and maintained so.
See Kalu Vs. Uzor 2006 8 NWLR (Part 981) 66;
Buhari Vs. Obasanjo 2005 3 NWLR (Part 941) 1;
Jalingo Vs. Nyame 1992 3 NWLR (Part 231) 538;
Nwobodo Vs. Onoh 1984 1 SCNLR 1;
Omoboriowo Vs. Ajasin 1984 I SCNLR 108.
See also Sections 115, 148 and 149 of the Evidence Act which by its provisions there is the presumption that any election result declared by a returning officer is authentic and correct.
In the instant appeal an election was said to have held on the 9th of May, 2003 and the results declared and a winner – the 1st Respondent returned. If no election took place as alleged by the Appellant then there must have been an omission or neglect of duty by the presiding officers who manned the polling booths in the respective wards the election was said to have taken place.
Ground one in the Appellant’s petition alleges;
“On the day of the election 9th of May, 2003, no proper election involving voting, counting, collations of results of valid votes, took place in any of the five wards of Burutu South Constituency in the manner prescribed by the Electoral Act”
Here the Petitioner/Appellant is alleging that no election took place at the said polling booths in the respective wards, while on the other hand the electoral body is saying that voting did take place, with the presumption that voting did take place then something is amiss somewhere and it is only the presiding officers who can be answerable to the allegation before the lower tribunal. The returning officer who is said to be the necessary party to the petition by the petitioner could not have had the results to return if the presiding officers have not done what they were supposed to have done in the conduct of the election. See Eng. Yahaya Vs. Prof. J. Aminu & 60 Others 2004 7 NWLR (Part 871) 159 Per Nzeako JCA at 183 – 184. “Where a petitioner mentions by official title name of the person or official against whom his complaint is directed he must join the person or official as a party to the petition. On the other hand, where the petitioner fails to specifically mention the official or persons his allegations refer to, the court will examine the petition to infer those responsible for the alleged malpractices. To determine this, the court will examine the nature of the assignment placed on the electoral officers by the Electoral Act.
In the instant case the inference to be drawn from the petition is that where the alleged malpractices could have occurred is at the ward and polling unit level. This is because that is where voting or failure to vote or to conduct election, or where voting would take place as provided in the Electoral Act. Therefore it is the officials appointed and assigned duty at ward and polling unit level under the Electoral Act, in this instance the presiding officer, that would be answerable to the petitioners complaint”
The presiding officers are in charge of the polling units, and that is where the voters cast their votes. The collation and returning officers can only come in after the presiding officers have done their duty of conducting the election.
It thus follows that in any allegation of election malpractice, involving non voting, falsification of results, over voting or any other irregularity contrary to the provisions of the Electoral act, the Presiding officers are answerable and therefore become necessary parties in an election petition.
See Kallama Vs. Gurin 2003 16 NWLR (Part 847) 493;
Buhari Vs. Obasanjo (supra)
Bello Vs. Jalo 1999 4 NWLR (Part 598) 189.
By the combined effect of Section 133(2) and paragraph 407(1) of the First Schedule to the Electoral Act, 2002 where an election petition complains against the conduct of an electoral officer and such conduct
becomes an issue, such officer shall for all purposes be deemed to be a necessary party in the petition. Failure to join him as a necessary party will estop the petitioner from adducing evidence in respect of the alleged malpractices and electoral irregularities.
See Omoboriowo Vs. Ajasin (supra);
Yusuf Vs. Obasanjo 2003 16 NWLR (Part 874) 554;
Buhari Vs. Obasanjo 2005; 2 NWLR (Part 910),
Similarly, failure to join him as a party will render the petition incompetent.
See Egolum Vs. Obasanjo 1999 7 NWLR (Part 611) 355 Per Belgore, JSC (as he then was )at 397.
“The principle of our law is that no person shall be guilty without being given the opportunity to defend himself every person against who an allegation is made must be confronted with that allegation so that he can offer his defence. That is the purport of Section 50(2) of the Decree No. 6 of 1999 (supra). The petitioner who complains that an Electoral Officer, a Presiding Officer, a Returning Officer, or any other person involved in the election by conduct has initiated the election must presume that officer etc as a necessary party and must make him a party. In paragraphs 9, 10, 12, 13, 14, 15, 16, 17, 18 and 19 of the petition the petitioner made many serious allegations including fraud and other electoral offences, but the electoral officers, returning officers etc have not been made parties i.e. Respondents to the petition. This short coming in the petition made those paragraphs incompetent”.
In like manner ground one of the petition is rendered incompetent for the failure of the Appellant to join the presiding officers as parties in the petition and the lower tribunal was right to have held so.
The complaint against the second ground of the petition titled “fraud and or grave irregularities” is that of its being outside the contemplation of the provisions of Section 134 of the Electoral Act 2002 which provides;
(1) An election may be questioned on any of the following grounds, that is to say:
(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;
(c) 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.’
The above provision is clear and specific as to the ground that a petitioner can challenge an election. Any other ground which is out side the above has been regarded as frivolous or baseless by the courts. It will in effect not be regarded as a ground capable of questioning an election.
See Ayogu Vs. Nnamani 2006 8 NWLR (Part 981) 160;
Yusuf Vs. Obasanjo 2005 18 NWLR (Part 956) 96;
Ogboru Vs. Ibori 2004 7 NWLR (Part 87) 223.
Ground 2 of the petition is rendered incompetent being not in compliance with the provisions of Section 134(1) of the Electoral Act. The lower tribunal was right in striking it out.
There being no other ground on which to hinge the election petition it becomes incompetent and liable to being struck out and I so hold.
On the whole I find no merit in this appeal and I hereby dismiss it.
I award costs assessed at N10, 000.00 to the 1st Respondent against the Appellant.
Other Citations: (2007)LCN/2506(CA)
