Princewill Chilaka Onuoha V. Solomon Akpulonu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

In the rescheduled election held on 28th April, 2007 into the Abia State House of Assembly for the Obingwa East State constituency, the Appellant, sponsored by Progressive Peoples’ Alliance (PPA) and the 1st Respondent on the platform of the Peoples Democratic Party (PDP), were candidates among others. At the end of the election, the 3rd Respondent, through the 4th – 7th Respondents declared and returned the 1st Respondent as the winner. Dissatisfied with the return, the Appellant presented an election petition against same before the Governorship and Legislative Houses Election Tribunal Abia State (hereinafter lower tribunal) on three (3) grounds as follows:

1. The election of the 1st Respondent was invalid by reason of corrupt practices, violence and or noncompliance with the provisions of the Electoral Act.
2. The 1st Respondent was not elected by a majority of the lawful votes cast at the election
3. Petitioner avers that 1st Respondent was not elected by majority of the lawful votes cast at the election, and that the election in Obingwa Local Government Area Ward 10 was invalid by reason of corrupt practices, violence and or non-compliance with the provisions of the electoral Act.”

At the end of the trial of the petition, the Tribunal in a decision delivered on the 23rd of February, 2008, dismissed it and affirmed the declaration and return of the 1st Respondent as the winner of the election. Once again, the Appellant was dissatisfied with that decision and so an appeal against it was filed on the 6th of March, 2008. The appeal was predicated on five (5) grounds, which stripped of their particulars, are as follows:-

“GROUND 1

ERROR IN LAW

The Tribunal erred in law when it held that the presiding and collation officers for units and wards against whom there were no complaints were necessary parties and ought to have been joined.

GROUND 2

ERROR IN LAW

The Tribunal erred in law when it dismissed the entire petition on ground that presiding officers and ward collation officers were not joined in the petition.

GROUND 3

ERROR IN LAW

The Tribunal erred in law when it failed to consider the issue of substantial non compliance in the declaration of result as specifically pleaded by petitioner thereby denying petitioner a fair hearing and thus occasioning a miscarriage of justice.

GROUND 4

ERROR IN LAW

The Tribunal erred in law when it held that the return of the 1st Respondent is hereby affirmed based on substantial non compliance.

GROUND 5

THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE.”

In line with the practice, briefs of argument were filed in the appeal by learned counsel for the parties. The Appellant’s brief was filed on 2nd May, 2008, while the 1st Respondent’s brief and the 2nd – 7th Respondents’ brief were both filed on the 19th of May, 2008. The 2nd – 7th Respondents were later granted leave to amend their brief and the 2nd – 7th Respondents’ Amended brief filed on 11th September, 2008 was deemed filed on 27th October, 2008; the date the appeal was heard. The Appellant’s Reply brief filed on 10th June, 2008 was also amended with leave of the court and the Appellant’s Reply brief was deemed filed on the date of hearing, that is, 27th October 2008.

The briefs were adopted and relied on by learned counsel in support of their different positions in the appeal. The learned counsel for the Respondents also moved or argued their respective preliminary objection incorporated in their briefs of arguments and were urged to uphold same.

From his five (5) grounds of appeal, the learned counsel for the Appellant distilled a single issue which he submitted for determination in the appeal. The issue which was set out at paragraph 3 on page 6 of the Appellant’s brief is thus: – “Whether the Tribunal was right in dismissing entire petition regard being had to the pleadings, the evidence and the circumstances of the case.”

A sole issue was also formulated by the learned counsel for the 1st Respondent in the following terms:-

Whether the trial tribunal was right in dismissing the Appellant’s petition in view of its holding that the necessary parties to determine the petition were not joined.”

For the 2nd – 7th Respondents, three (3) Issues were raised as calling for determination. They are:-

1) “WHETHER HAVING REGARD TO THE PLEADINGS AND EVIDENCE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT PRESIDING OFFICERS, AND WARD COLLATION OFFICERS WERE NECESSARY PARTIES WHO OUGHT TO BE JOINED AS PARTIES TO THE PETITION (GROUND 1 AND 2)

2) WHETHER THE TRIBUNAL WAS RIGHT IN DISMISSING THE PETITION AND AFFIRMING THE RETURN OF THE RESPONDENT AND WHETHER ANY MISCARRIAGE OF JUSTICE WAS OCCASIONED THEREBY (GROUNDS 3 AND 4).

3) WHETHER THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE (GROUND 5)

In my view, the Appellant’s issue is more concise but wide enough to take care of the formulation by the learned counsel for the Respondents. A determination of that issue will adequately answer the points raised in the issues formulated by them. I prefer that issue submitted for the Appellant and would consider the appeal based thereon.

Before a review and consideration of submissions of learned counsel on the issue, I intend to deal with the preliminary objection raised by the Respondents against the Appellant’s grounds of appeal Nos. 1 and 4.

For the 1st Respondent, the said grounds are said to offend Order 6 Rules 2, 3 and 6 of the Court of Appeal Rules 2007 that the particulars to the grounds are argumentative. We were urged to strike out the two grounds as well as the issue said to have been raised from them. The grounds are said by the learned, counsel for the 2nd – 7th Respondents to be incompetent for being narrative, argumentative and do not disclose reasonable grounds of appeal. Order 6 of the court of Appeal Rules as well as cases in which similar provisions were considered were cited in support of the objection.

For the Appellant it was submitted that the two grounds emanated from the decision of the Tribunal and that the Respondents were not misled by them because they have fully responded to the issues arising from the grounds in their briefs. Without much ado, it cannot seriously be argued that ground 1 is not concise or that it is vague, general in terms or it does not disclose a reasonable ground of appeal. That ground is all that a good ground of appeal should be under the Court of Appeal Rules because in a very concise, precise and clear form and language, it has set out what the real complaint of the Appellant is against that portion of the Tribunal’s decision to which it relates. Rather than condemn the ground or its formulation, I commend it to the learned counsel as a guide in the art of setting out grounds of appeal in a Notice of Appeal. The ground and the particulars thereof are in strict compliance with the Rules of Court.

On ground 4, it is correct that the Tribunal did not affirm the return of the 1st Respondent based on substantial non compliance. However, it was the decision of the Tribunal that “the return of the 1st Respondent is hereby affirmed” at page 467 of the printed record of appeal. That is indisputable. The ground simply challenges that decision as an error in law, the particulars of which were set out. Particulars 2 under the ground is undoubtedly an argument, but 1 and 3 are on the error complained about in the ground. The ground is not vague but clear, not narrative but succinct and contains no argument. It is a good ground of appeal which reveals or conveys the exact complaint of the Appellant in respect of the decision of the Tribunal.

In the result, the two grounds (1 & 4) have met all the requirements of the law and so are competent grounds of appeal which are not affected by the authorities cited by the learned counsel for the 2nd -7th Respondents.

The primary purpose and essence of a ground of appeal, as rightly pointed out by the learned counsel for the Appellant is to give adequate notice to the other side (Respondents) of what the genuine and real complaint is against the decision of a lower Court/Tribunal. See STIRLING CIVIL ENG. (NIG.) LTD V. YAHAYA (2005) 11 NWLR (935) 181, NASIRU V. BEWDAWA (2006) 1 NWLR (961) 355, OGBORU V. IBORI (2006) 17 NWLR (1009) 542. For want of merit, the objection to the two grounds is overruled and dismissed.

Now to the submissions of learned counsel on the issue formulated for determination.

The Appellant’s contention is that he did not make any complaint or allegation against the Presiding Officers or Ward Collation Officers who participated in the conduct of the election as envisaged by Section 144 (2) of the Electoral Act, 2006 (which was set out) so as to make them necessary parties to the petition.

Learned counsel for the Appellant cited Section 133 (2) of the Electoral Act 2002 which was said to be in pari materia with Section 144 (2), but argued that the latter section has a proviso that is an improvement or modification to the 2002 Act. He said the cases decided under the 2002 Act are to the effect that where there is failure to join necessary parties, paragraphs relating to them in the pleadings/petition would be struck out. That since no complaint was made in the petition against the officers, there was no need to join them as parties and the Appellant should not be compelled to sue or do battle with persons against whom he has no quarrel or alleges injuries. The case of OKESADE V. OGUNKAYODE (1994) 1 NWLR (318) 26 was cited in support of the position According to learned counsel, the Appellant only stated in paragraph 9 of the petition that the Ward Collation Officers were held hostage by the 1st Respondent and his agents thereby preventing them from being at their duty post and that the Presiding officers had discharged their duties creditably but were prevented by the 8th Respondent from submitting the result at the Local Government Collation Centre. According to him, the conduct of the above officers was not questioned nor was any complaint made against them. Paragraphs 3, 9 and 10 of the petition were referred to and it was maintained that the officers were not necessary parties to the petition. It was however conceded that on the authorities of BUHARI V. OBASANJO (2003) 17 NWLR (850) 425, YAHAYA V. AMINU (2004) 7 NWLR (871) 159, BIYU V. IBRAHIM (2005) ALL FWLR (274) 261 and others represent the law that complaints made in paragraphs of a petition against officers who are not joined as parties would be struck out. But it was contended that the Tribunal ought to have held that failure to join the officers was not fatal to the petition. It was further contention of counsel that under Section 144 (2) of the 2006 Electoral Act, a petitioner does not have to use the word “agent” before the provisions of the proviso are applicable. That the Tribunal ought to have taken judicial notice of the agency of presiding and ward collation officers who are statutory agents of the 3rd Respondent. He said even where offending paragraphs of a petition are struck out for non joinder of necessary parties, if there still existed sufficient pleadings to sustain it, it would be wrong to either strike out or dismiss the petition for non joinder of such parties. Learned counsel argued that the case of NWANKWO V. YAR’ADUA (unreported) in appeal No. CA/A/EP/6/07 did not deal with non-compliance based on results from less than 20% of the constituents of constituency and so different. In addition, it was argued that the Tribunal failed to consider other paragraphs of the petition, particularly paragraph 16 which according to learned counsel was not affected by the non joinder and sufficient to sustain the petition. Paragraph 16 was set out and evidence said to be in support thereof was referred to and it was submitted that the Tribunal had failed to consider the issue of substantial non-compliance on which issue was joined by the parties. Learned counsel said that the non compliance affected over 80% of the votes in the constituency and so great as to render the election invalid, relying on the case of BUHARI V. OBASANJO (2005) 2NWLR (900) 241. In conclusion, we were urged to resolve the lone issue in Appellant’s favour, allow the appeal and grant the relief sought.

For the 1st Respondent, it was submitted that the allegations in paragraphs 3, 4, 5, 6, 7 and 15 of the Appellant’s petition are that the results in wards 8 and 10 are forged and spurious and so constituted complaints against the officers who were involved in the conduct of the election and collation of the results. The cases of AWUSE V. ODILI (2005) 16 NWLR (952) 416 @ 468-9, MUOGHALU V. NGIGE (2005) 4 NWLR (914) 35 among other cases were cited and relied on by learned counsel who argued that non joinder of the officers complained against affected the petition negatively. On the contention that the collation officers were held hostage and prevented from getting to their duty posts, it was argued that the decision in BUHARI V. OBASANJO (supra) was that once an electoral officer as required by Section 144(2) is not joined, who had a duty in respect of the allegation, then it is a fundamental defect. Furthermore, it was submitted that the Appellant did not plead that the affected officers were agents of 3rd Respondent in order for the proviso to Section 144 (2) to avail him. It was also contended that the Appellant’s case was that results for wards 7, 9 and 11 were not collated but did not join the collation officers and so paragraph 16 of the petition could not sustain the petition because the officers against whom the non compliance was alleged were not joined. References were made to the decision in NWANKWO V. YAR’ADUA (supra), the proviso to Section 144 (2) of the Electoral Act and it was finally argued that in the election in question, a simple majority of the votes lawfully cast is used for the computation, declaration and return of the winner.

The submissions of the learned counsel for the 2nd – 7th Respondents are substantially to the same effect as those for the 1st Respondent, that is, that the Appellant had made allegations, some of which are criminal against the Presiding and Collation Officers in his petition but he failed to join them as parties. He specifically referred to paragraph 3-7, 9-12, 15 and 16 of the Appellant’s petition and argued that with such allegations of no election, non voting, over voting, non collation of ward results, snatching of electoral materials, unlawful exclusion of results, preparation and/or fabrication of results outside polling units etc, the officers, who conducted the election became necessary parties who had to be joined in the petition. The cases of YAHAYA V. AMINU (supra) @ 183, KALLAMU V. GURIN (2003) 16 NWLR (847) 493 @ 520 were cited by learned counsel who said the Appellant here did not disclose the specific officers to whom the allegations referred to and to that extent the petition was defective since non of the officers who were involved in the conduct of the election was joined as a party. Additional cases of BIYU V. IBRAHIM (supra), BUHARI V. OBASANJO (supra), GREEN V. GREEN (1987) 3 NWLR (6) 480, ONWUDINJO V. DIMOBI (2006) 1 NWLR (961) 318, UDE V. OSUJI (1990) 5 NWLR (151) 488 @ 512 on non joinder of necessary parties were relied on. Furthermore that the proviso to Section 144 (2) of the Electoral Act is inapplicable as it is not intended to deny the right of fair hearing to the officers against whom the Appellant made allegations. It was also the submission of learned counsel that the issue of non compliance by reason of the return of the 1st Respondent on the 19 units was not a live issue in view of the allegations in the pleadings and non joinder. That failure by the Tribunal to consider same was said by him to be merely academic or otiose as paragraph 16 of the petition was deemed abandoned. In the alternative, it was argued that even paragraph 16 was not abandoned, there was no evidence sufficient to prove same or even if proved, the paragraph was incapable of sustaining the petition. Learned counsel restated the law that unless findings of facts by a trial court were found to be perverse or not supported by evidence on record, an appellate court even if disposed to come to a different conclusion, cannot reverse such findings. The case of ABIMBOLA V. ABATAN (2002) 9 NWLR (717) 66 was cited on the position and it further contended that the finding by the Tribunal were supported by the evidence placed before it. We were finally urged to dismiss the appeal.

In his reply brief, learned counsel for the appellant said that it is common ground that the constituency comprises of 106 polling units and the return of the 1st Respondent was based on results from only 19 of them. It was maintained that no allegation was made against the presiding and collation officers to make them necessary parties that must be joined in the petition. In addition, that the Appellant’s petition was based on three grounds such that each was independent of the other and the petition was entitled to succeed on any one of them.

Finally, it was submitted that the issues canvassed in paragraphs 7.16, 8.05, 8.07 and 8.13 of the 2nd – 7th Respondents’ Amended brief were new for which leave was not obtained and so incompetent . BAMGBOYE v. UNILORIN (1999) 10 NWLR (622) 290, OLAWLOYE v. FATUNBI (1999) 8 NWLR (614) 208 & DIAMOND BANK V. GSM AGRO ALLIED (1999) 8 NWLR 558 were cited on the point.

Let me quickly deal with the last submission by saying that the submissions in the paragraphs above are nothing but further arguments on the issue of non joinder of officers against whom allegations were said to have been made. Only the last paragraph of paragraph 8.13 can truly be said to be an issue not canvassed at the Tribunal. It deals with the admissibility of the results produced by the Appellant for wards 7, part of ward 8, 9 and 11 of the Constituency which was not raised before the Tribunal.

In order to determine the issue raised by the Appellant’s counsel, the first point to be decided is whether from the pleadings of the Appellant, allegations were made against any of the officers who were involved in the conduct of the election such that would make them necessary parties that must be joined in the petition as required by law.The general position of the law as stated in the relevant cases cited by learned counsel in their respective briefs of argument on the point is that failure to join an officer against whom an allegation was made in a petition would render the pleadings in which the allegation/s was made, liable to be struck out.

However all the authorities cited were decided on the provisions of section 132 (2) of the Electoral Act, 2002, which to a large extent is similar in con with the now operative and relevant provisions of Section 144 (2) of the Electoral Act 2006 under which the election in question here was conducted. The difference between the two sections of the Acts is the addition of a proviso to section 144 (2) Section 144 (2) provides: –

(2) The person whose election is complained of is in this Act, referred to as the Respondent, but if the petitioner complains 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, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to void the petition if the commission is made a Part.”

The proviso provided in the Section has qualified, limited or restricted the requirement of the earlier provisions that the officers mentioned therein against whose conduct there was a complaint by a petitioner shall be joined in the petition as Respondents. Where an officer is shown in the petition to have acted as an agent of the Commission, his non joinder will not alone operate to void the petition if the Commission is made a party to the petition as a Respondent. The only way that an officer can be shown to have acted as an agent of the Commission in the petition is by way of making a statement or averment to that effect in one or more of the paragraphs of the petition. So for the proviso to apply and avail a petitioner or petition there must be a pleading to the effect that the officer in question, acted as an agent of the Commission in the conduct of the election. I do not think there is any reasonable doubt about this position to which the learned counsel for the 1st Respondent had alluded in his brief of argument. Consequently, the proviso provides an alternative or option to a petitioner who makes any complaint on the conduct of an officer in an election to either join such officer or to show by the pleadings that such officer acted in the conduct of the election, as an agent of the Commission in order to validate the petition or make it competent. In the first instance, the officers were made statutorily necessary parties who must be joined in a petition otherwise; the failure or omission to join them would operate to void the petition. In the 2nd instance, the failure or omission to join such a necessary party will not operate to void a petition where there are pleadings of an agency relationship between the officer and the Commission in the conduct of the election. There can be no serious dispute about this position.

To answer the question posed earlier, a close look at the Appellant’s entire pleadings in the petition becomes necessary. That cannot easily be done without setting them in detail here and as follows: –

1. “Elections to the Obingwa East State Constituency were held on 28/4/2007, the Constituency comprises 5 Wards namely Alaukwu Ohanze Ward 7, Akumaimo Ward 8, Ndiakata Amairinabuo Ward 9, Ntighauzor Amairi Ward 10 and Ibeme Ward 11. After the elections 3rd, 6th & 7th Respondents declared 1st Respondent winner with 5947 votes. Petitioner hails from Ndiakata Amairinabuo Ward 9 while 1st respondent hails from Ntighuzor Amairi Ward 10.
2. Obingwa East Constituency is comprised as follows: –
3. Alaukwu Ohanze Ward 7 – 28 Units
4. Akumaimo Ward 8 – 17 Units
5. Ndiakata Amairinabuo Ward 9 – 25 Units
6. Ntighauzor Amairi Ward 10 – 15 Units
7. Ibeme Ward II – 21 Units

Total No. of Unit …106

On the morning of the elections, electoral materials were distributed to all the wards and voting took place in most of the wards. At the close of elections counting of the votes were done at various Units and results recorded in Form EC8As. The results in From EC8As were given to party agents in the wards in which voting took place namely Ward 7, part of 8, 9 and 11. The said results are hereby pleaded. 2nd -7th Respondents are hereby given Notice to produce the originals in their custody. Thereafter the results from each Unit in the Ward were to have been collated at the Ward collation centres.

4. However for Ward 10 being the 1st respondent’s Ward, voting was marred by sporadic shootings by thugs and agents of the 1st Respondent acting on his instruction. Voters and other Party Agents were chased away while electoral materials were high jacked by 1st Respondent’s agents. Thus no real voting took place in Ward 10, neither were Party Agents given Results in Forms EC8As. Indeed any results from this Ward and or allegedly signed by the Petitioner’s agent are spurious. It was therefore surprising that results were eventually returned from this ward 10 indicating that the Parties scored as follows: –

WARD NO OF UNITS AFFECTED PDP PPA

Ward 10 14 Units 3969 40

At the end of the exercise 1st Respondent was credited with 5, 947 votes while Petition was said to have scored 65 in the constituency.

5. The results from part of Ward 8 and 10 were characterised initially by overvoting which when discovered by Petitioner’s Chief Agent at the Collation Centre then led the 1st Respondent’s agents acting on his instruction to quickly to resort to doctoring, cancellations and mutilations in some instances to make the fabricated results tally and or conform with the number of registered and or accredited voters in favour of the 1st Respondent particularly in the summary results.
6. Petitioner therefore objects to the votes from these affected areas where the electoral malpractices took place.
7. Initially one Mr. Felix Obia (6th respondent) was announced to be the Returning officer but following some exchange with one young man (5th Respondent) who came and insisted on being the returning Officer and a few phone calls by the said 5th Respondent, the said Mr. Felix Obia was substituted with the 5th Respondent who now collated and announced the results using only the spurious results from part of Ward 8 and 10 which were favourable to 1st Respondent, while deliberately and unjustifiably ignoring the authentic results from Wards 7, other parts of 8, 9 and 11 where Petitioner scored higher.
8. Eventually Mr. Felix Obia was thoroughly beaten up by 1st Respondent’s thugs for refusing to do their bidding and for initially being stubborn by refusing to yield to 5th Respondent.
9. For no cogent or justifiable reasons collations for wards 7, 8, 9 and 11 were not c one in these centres as the Ward Collation Officers could not be found in the Wards, having been held hostage at the Women Development Centre Hall Mgboko by 1st Respondent, his party (PDP) and their thugs; and following a directive by the 7th Respondent the Presiding Officer took the took the results to the Local Government Headquarters at Mgboko but the 5th, 6th and 8th Respondents refused to allow the Presiding Officers submit the results.
10. Again for unjustifiable reasons the Respondents particularly (5th, 6th and 8th) ignored and or failed to take into consideration the results from Wards 7, part of 8, 9 & 11 during the final collation held at Mgboko. The Respondents for no justifiable reason refused to add the results of these wards during the collation held at Mgboko.
11. Petitioner’s Agent protested/objected to the unjustifiable exclusion of these results but the 7th Respondent merely made an announcement to the effect that he had noted the protest/objection to the exclusion of the said results. The 3rd, 4th, 7th and 8th Respondent is hereby given notice to produce the originals of the said results in their custody.
12. Petitioner shall at the trial contend inter alia that the results from Wards 7, part of 8, 9 and 11 were not cancelled, that Respondents had no power to cancel the results from these wards and also had no power to ignore and or refuse to take into consideration the results from these wards 7, part of 8, 9 and 11 in collating the results.
13. Meanwhile from the forms EC8As given to the party agents the results disclosed that the votes for these wards were as follows: –

WARD NO OF UNITS AFFECTED PDP PPA

Ward 7 16 (out of 28) 72 7854

Ward 8 3 (out of 17) 60 1381

Ward 9 20 (out of 25) 176 8576

Ward 11 2 (out of 21) 23 1354

Total 41 (out of 91) 331 19165

14. Petitioner contends that the Wards whose results were unlawfully discountenanced by Respondents during the collation are indeed the stronghold of the petitioner’s Party the PPA where Petition won his major votes for the following reason:-

Ward 7 – Ward of the Deputy Governor Abia State and PPA Senatorial Candidate and House of Representatives Candidate.

Ward 9 – Ward of the Petitioner

15. The Petitioner contends that if the votes from part of Obingwa Ward 8 and Ward 10 (where voting was marred by electoral malpractices, violence and spurious results were eventually returned) are discountenanced and the correct/authentic results from Obingwa Wards 7, part of 8, 9 and 11 (which were wrongly rejected by Respondents) are correctly collated, he (Petitioner) would score 19165 Votes while 1st Respondent would score 331 Votes in Obingwa East State Constituency. Petitioner contends in the alternative that even if the spurious results from part of Ward 8 and 10 are used in the collation alongside the authentic results from other parts of Wards 8, 9 and 11, he (Petitioner) would score 19230 Votes while 1st Respondent would score 6278 Votes in Obingwa East State Constituency. By the said correct and actual votes, the Petitioner and not the 1st Respondent ought to have been declared the winner and returned as duly elected.
16. Petitioner also contends in the alternative that in his Constituency made up of five (5) Wards with a total of 106 Units, 1st Respondent cannot be declared duly elected and returned based on results from 14 Units out of 15 Units of only one (1) Ward – 1st Respondent’s Ward 10 – plus five (5) Units only in Ward 8 Since Respondents declared results from only nineteen (19) Units out of the entire one hundred and six (106) Units in the Constituency, Petitioner contends in the alternative that the results do not reflect the votes cast at the election and shall thus urge the Tribunal to nullify the election and order a bye election.

WHEREFORE your petitioner prays that it may be determined as follows: –

(a) That the election in part of Obingwa Ward 8 (5 Units), and Ward 10 was invalid by reason of corrupt practices and or non compliance with the provisions of the Electoral Act.

(b) That the said Akpulonu Solomon (1st Respondent was not duly elected or Returned.

(c) That the Petitioner herein was duly elected and ought to have been returned having scored a majority of the lawful votes cast at the election.

OR IN THE ALTERNATIVE

(d) That it may be determined that the election in Obingwa East State Constituency was marred and or avoided by electoral malpractices, violence and or irregularities and the same be nullified and a fresh election ordered.”

As can clearly be seen, in paragraph 4 and 5 the Appellant had alleged that voting did not take place or election did not hold in Ward 10 and so the results returned for the ward were spurious and fabricated. He also alleged that the election in wards 8 and 10 were characterised by over voting. He objected to the results in paragraph 6. The allegations here are direct complaints on the conduct of the presiding officers who were in charge of the polling units in the wards. Though according to the Appellant, election did not take place in ward 10, the presiding officers made out and entered spurious results and falsified result for the ward which was used in the return of the 1st Respondent. The allegation of over voting is also against the conduct of the presiding officers who manned the polling units where voters were accredited using the voters’ Register to enable them cast their votes in the election. These allegations are serious and can only be answered by the officers against whom they were made. The officers were not joined as necessary parties pursuant to Section 144 (2) and the Appellant did not show in the pleadings that the said officers in the non conduct of the election in the ward were agents of the Commission even though the Commission was joined as a Respondent. The consequences of non-joinder of a necessary party as settled by the numerous authorities cited on the point, is that the paragraphs in which complaints were made against them are liable to be struck out.

In addition see BALONWU V. IKPEAZU (2005) 13 NWLR (942) 479, YUSUF v. OBASANJO (2005) 18 NWLR (956) 96, OKOLUGBO v. ISEI (2006) 8 NWLR (982) 393 ONWUDINJO v. DIMOBI (2006) 1 NWLR (961) 318. However, by the provision of the proviso to Section 144 (2) the non-joinder of an officer whose conduct was complained of appears to be capable of voiding a petition and not only the paragraphs in which the complaint was made where the commission was not a party. This was the view expressed by our learned brother in contribution to the lead judgment in the case of NWANKWO V. YAR’ADUA cited and relied on by the Tribunal in its judgment at pp 465-6 of the record. Paragraphs 4 and 5 of the petition contain complaints against presiding officers who thereby became necessary parties and who were not joined in the petition.

In my view, the two (2) paragraphs (4 and 5) of the petition are the only ones that can be said to contain complaints against officers who were not joined in the petition. All other complaints in the petition were made against officers who were made parties to the petition. The 1st Respondent against whom most of the complaints were made was not an officer who took part in the conduct of the election and has been joined. The complaint in paragraph 9 is directly against the 1st Respondent and not the collation officers for wards 7, 8, 9 and 11, since the case of the 2nd – 7th Respondents is that no election was held in the said wards as pleaded in paragraphs 8 and 9 of their Reply to the Petition.

In the result, the only paragraphs of the Appellant’s petition liable to be struck out for non joinder of necessary parties are paragraphs 4 and 5.

The next point to be determined is whether when the two (2) paragraphs above are removed or struck out of the petition, there remain other pleadings capable of sustaining the petition. In answering this question, the grounds upon which the petition was premised have to be borne in mind. The grounds have earlier been set out in this judgment and apparently the pleadings in the other paragraphs of the petition can sustain the petition upon the two grounds (1) and (2) thereof. In other words, even without paragraphs 4 and 5 of the petition, the grounds of the petition are sustainable by the other facts pleaded in the petition such as to make it competent. Whether or not any of the grounds may succeed would depend entirely on the evidence adduced in support thereof as can be deciphered from the printed record of appeal.

The next point is whether the evidence given before the Tribunal was sufficient to support and sustain any of the grounds of the petition. I would like to point out that the Tribunal did not evaluate the evidence placed before it because it decided that the non joinder of the necessary parties was fatal to the petition. Since an appeal by the provision of Order 6 Rule 2 (1) of the Court of Appeal Rules 2007 is by way of rehearing and under the provisions of Section 16 of the Court of Appeal Act, this Court has and can exercise the same powers and jurisdiction of a Court/Tribunal, I intend to consider the evidence placed before the Tribunal and then determine if it had established any of the grounds of the petition. See MUSA V. YUSUF (2006) 6 NWLR (977) 454, FAYEMI v. L.G.S.C. OYO STATE (2005) 6 NWLR (921) 280, AMADI V. ACHO (2005) 12 NWLR (939) 386. Now, in support of the petition’ the Appellant and his 3 other witnesses gave evidence to the effect that election was held in most wards in the constituency and results were at the polling units entered in forms EC8As which were signed by and copies given to party agents. Specifically, the results for wards 7, part of 8, 9 and 11 were tendered as exhibits A, A1 -17, B, B1 -2, C, C1-19 and D and D1 respectively in copies said to have been signed and collected by the Appellant’s agents. These exhibits were put in evidence in support of the pleadings that election held in the named wards and results were collated. These forms EC8As are prima facie, copies of the official forms usually used by the 3rd Respondent through its polling officers to enter results of elections conducted at the polling units of a constituency as provided for in Section 64 (i) (2) (3) of the Electoral Act, 2006. In fact these forms were not challenged, disputed or disowned by the 2nd – 7th Respondents, but particularly the 3rd Respondent from the evidence that was admitted and placed before the Tribunal. The only attempt to discredit the results entered in the forms by the use of a police hand written expert failed because the Tribunal rejected the testimony of the hand writing expert along with the report he wrote on the forms. The forms therefore remain credible evidence in support of the pleadings that elections held at the polling units in respect of which result were entered therein. In addition, the evidence of the Appellant and his other witnesses that election held in wards 7, part of 8, 9 and 11 was not effectively discredited by the Respondents nor was it controverted by the evidence adduced by them. The pleadings in paragraph 8 of the 2nd – 7th Respondents Reply to the petition are to the effect that election materials were not even distributed in wards 7, 9 and 11 and so no election was held in the wards. However, in paragraph 9, the pleadings are to the effect that because election materials were not distributed and officials prevented from performing their election duties, “the results from the said wards 7, 9 and 11 were duly cancelled by the Respondents.” The pleadings in paragraph 9 appear curious because, if election materials were not distributed in the wards in question and elections did not hold therein, where then did the Respondents get the results of the elections from the same wards which “were duly cancelled by the Respondents”. The evidence of the 2nd -7th Respondents on the pleadings as shown in Exhibits S, S1 and 2, which are reports of supervisors and their statements are to same effect as pleaded in paragraphs 8 and 9; that in one breadth elections did not hold and in another results were cancelled due to electoral malpractices. The 2nd – 7th Respondents appear to me to have laboured with great difficulty to speak from both sides of their mouths at the same time. The effect is that the forms EC8A tendered the petition to prove that elections indeed and in fact held in wards 7, 9 and 11, remain solid and convincing evidence; supported even by one version of the 2nd – 7th Respondents’ case that results from the said wards “were duly cancelled by the Respondents.” The Appellant’s evidence has therefore on the balance of probabilities, proved that elections were held in wards 7, part of 8, 9 and 11 of the constituency on the 28th of April, 2007 and results thereof entered in the Forms EC8As tendered as Exhibits before the Tribunal.

It may be asked whether the Respondents had the power to cancel the results entered in the said forms EC8As.

By the provisions of Section 64 (1) and (4) of the Electoral Act 2006, at the close of voting at a polling unit, the Presiding Officer who were in charge were required to count the votes cast, announce and enter the results at the polling units. The only situation in which the 3rd Respondent was empowered to declare null and void an election after the process in section 64 (1) and (4) is provided in section 54 (2) of the Electoral Act 2006. The Section makes the following provisions:

54. (2) Where the votes cast at an election in any constituency or polling station exceeds the number of registered voters in that constituency or polling station, the election for that constituency or polling station shall be declared null and void by the Commission and another election shall be conducted at a date to be fixed by the Commission.”

There was no allegation and proof of any over voting in respect of any of the polling Units in the wards in question and so the exercise of the power of the 3rd Respondent in the above section does not arise. However the position of the law is that the 3rd Respondent or any of its officers has no power or authority to cancel any result of an election announced or declared as provided by the provisions of the Election Act. UBA V. UKACHUKWU (2004) 10 NWLR (881) 224, BALONWU V. IKPEAZU (supra), ABANA V. OBI (2004) 10 NWLR (881) 319, EMEMUO V. DURU (2004) 9 NWLR (877) 75.

In these premises, the Respondents lack the legal competence, power or authority to cancel whimsically, results of election already announced or declared pursuant to the relevant provisions of the Electoral Act by any of the officers mandated to do so. Consequently the purported cancellation of the results announced and entered in the forms EC8As in wards 7, part of 8, 9 and 11 of the constituency in question was invalid, null, void and of no effect whatsoever. The results contained in the said forms are valid and should be considered, taken into account and used in the computation of the votes cast at the election for the purposes of declaration and return of the candidate who scored the majority of votes cast at the said election Furthermore, the Appellant in paragraph 2 of the petition had stated that there are five (5) wards and one hundred and six (106) polling units in the constituency in question. In paragraph 16 of the petition, the Appellant averred that the 1st Respondent was declared and returned as the winner of the election based on results from only 19 out of the 106 polling units and from only 2 out of the 5 wards of the constituency. All the Respondents by their pleadings conceded to these facts; the 1st Respondent in paragraph 4 and 17 of the Reply to the petition, paragraph 8, 9, 22, 25 and 26 of the Reply to the petition by the 2nd – 7th Respondent while the 8th Respondent did not deny the Appellant’s pleadings effectively in his paragraphs 1, 2 and 3 of his Reply to the petition. In effect the pleadings of the Appellant that only results from 19 of the 106 polling units from only 2 of the 5 wards in the constituency were used in the declaration and return of the 1st Respondent as the winner of the election are deemed admitted in law by the Respondents and to require no further proof. See Section 75 of the Evidence Act, AKIBU V. ODUTAN (1992) 2 NWLR (222) 210 @ 226-7, NWAKAMA V. MILAD, ABIA STATE (1995) 4 NWLR (388) 185 @ 187, OWOSHO v. DADA (1984) 7 SC, 149, GABARI v. ILORI (2002) 14 NWLR (786) 78 @ 100, KYARI V. ALKALI (2001) 11 NWLR (724) 412. In addition to the admission of those facts by the Respondents’ the Appellant had also given evidence in line with the pleadings showing positively that the declaration and return of the 1st Respondent was based on results from only 19 out of 106 units less than 20% and 1 and some portion of another out of 5 wards that make up the constituency for which the elections were supposed to be conducted for the seat contested for by the candidates. The powers of the 3rd Respondent under the 1999 constitution of Federal Republic of Nigeria as set out in paragraph 15 of Part 1 of the 3rd Schedule thereto is to “organise, undertake and supervise all elections into the offices of the House of Assembly of each State of the Federation among others…”

Having earmarked a constituency for the office or seat in the election that was held on the 28th of April, 2007, the constitutional and statutory responsibility and duty of the 3rd Respondent was to undertake, organise and supervise the election at all the polling units and wards that make up that constituency. It is only when that was practically done and the duty duly discharged by the 3rd Respondent can any results be properly declared and returned in the elections in compliance with the Electoral Act. Only results from elections conducted in the whole or most or at least a majority of the polling units and wards of the constituency can be declared and returned and seriously be said to have been in substantial compliance with both the Constitution and the Electoral Act. Let it be known that the primary purpose of the 1999 Constitution and the Electoral Act, 2006 in making provision for elections in the country is to invive, enhance and promote genuine and sincere culture of democratic governance.

Democratic governance everywhere in the world involves the choice of leaders by the majority of the people in the places elections were held, without any let or hindrance whatever. A situation where only a handful or a small number or a minority part of polling units and wards of a constituency, such as in the present case, were used to determine the majority of all the duly registered electorates entitled to vote at the election is quite strange and violate the principle of democracy as envisaged and provided for by the Constitution and the Electoral Act. Such a situation without mincing words is a flagrant non-compliance with the Electoral Act and Constitution and clearly shows abject failure by the 3rd Respondent to discharge the responsibilities imposed on it thereunder.

The 2nd -7th Respondents had unequivocally admitted and even asserted in their pleadings as demonstrated earlier, that elections did not hold in 3 ‘bd out of the 3 wards in 87 out of 106 polling units in the constituency, yet the 1st Respondent was declared and returned with impunity by them as the winner of the election. Can the 2nd – 7th Respondent sincerely maintain that the 1st Respondent was truly elected by a majority of the duly registered voters in the constituency who he is supposed to represent in the State House of Assembly? Would the 1st Respondent on his part conscientiously say that based on the result used to declare and return him as the winner of the election, he has the genuine support and electoral mandate of the majority of the electorates in the constituency to represent them at the State House of Assembly? The inescapable answers to the above questions are in compulsive negative.

With the above findings and the earlier one that the results entered in the forms EC8A tendered by the Appellant for wards 7, part of 8, 9 and 11 are to be used in the computation of the results of the election to determine the outcome of the election in the constituency, I would now proceed to consider the results in the said forms along with the ones used by the 2nd – 7th Respondents to return the 1st Respondent to bring out the overall outcome of the votes cast in majority of the polling units in the constituency.The results from the 19 polling units used by the 2nd – 7th Respondents as entered in the forms EC8A tendered by them as Exhibits M, M1 13 and N, N1-4 enjoy a rebutable presumption of genuity and correctness under the law. ADIEA v. OSUNDE (2003) 16 NWLR (847) 643, BUHARI v. OBASANJO (supra) NWOLE V. IWUAGWU (2005) 16 NWLR (952) 543, NWOGU V. NNAMANI (2006) 8 NWLR (981) 160. The appellant had not given evidence to rebut the presumption enjoyed by these results and so they remain genuine and correct for the purposes of the computation. The same presumption applies to the forms EC8A tendered by the Appellant which I have before found to be certified copies of the official forms used by the 3rd Respondent to record and enter results of elections at the polling units So results declared by the 2nd – 7th Respondents for the Appellant and 1st Respondent as follows: –

PDP – (1st Respondent’s sponsor) = 5,947 votes

PPA – (Appellant’s sponsor) = 65 votes

The results contained in the forms EC8A tendered by the Appellant contained the following total scores for the Appellant and the 1st Respondent in the affected forty-one (41) polling units: –

PDP – (1st Respondent sponsor) = 331 votes

PPA – (Appellants sponsor) = 1916 votes

If the two (2) sets of results above are added up together, the total votes scored and entered in the forms EC8A put in evidence before the Tribunal, would be as follows: –

– PDP (1st Respondents sponsor) – 5947 + 331 = 6,283 votes

– PPA (Appellant’s sponsor) – 65 + 19165 = 19, 230 votes

The above total numbers of votes are computed from results of the election entered in the forms EC8A from or in respect of 60 polling units of the 106 units in the constituency comprising 19 units in the ones tendered by the 2nd – 7th Respondents rand 41 units in the ones tendered by the Appellant. Apparently, that is a majority of all the polling units in the constituency. The results also come from all the 5 wards of the constituency. It is therefore from these results that the person who scored majority of the votes cast al the election in the whole constituency that can properly emerge and be declared and returned as the winner of the said election.

Without any difficulty whatsoever, but with ease from the above computation, it is the Appellant with 19,230 votes entered in favour of his sponsor party: the PPA, that scored the majority of the votes cast at the election. He is the person that ought to be declared and returned as the winner of the said election in compliance with the Electoral Act 2006.

In the final result, it is my finding that the Appellant had adduced sufficient evidence to sustain and prove his petition on the two grounds that: –

(1) That the 1st Respondent was not elected by a majority of the lawful votes cast at the election;

(2) That the declaration and return of the 1st Respondent as the winner of the election was invalid due to non compliance with the Electoral Act, 2006.

Consequently the appeal succeeds for all the reasons given above and it is allowed by me. The declaration and return of the 1st Respondent as the winner of the election conducted by the 3rd Respondent on the 28th of April, 2007 for the Obingwa East State Constituency into the Abia State House of Assembly is hereby nullified. The Certificate of Return issued by the 3rd Respondent to the 1st Respondent is consequently nullified. The Appellant is declared and returned as the winner of the said election. It is hereby ordered that the 3rd Respondent be issued with the Certificate of Return and he be duly sworn in as a member of the Abia State House of Assembly to represent his Constituency pursuant to Section 76 (1) and d (2) of the Electoral Act 2006. The 1st Respondent shall vacate the seat in the State Assembly forthwith.

Each party to bear the costs of prosecuting the appeal.

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Other Citations: (2008)LCN/3006(CA)