Samuel Jacob Ikpatt V. Ubong Okon Iyoho & Anor (1999)
LawGlobal-Hub Lead Judgment Report
OBADINA, J.C.A.
This is an appeal against the judgment of the Local Government Election Petition Tribunal of Akwa Ibom State, holden at Uyo, delivered on the 16th of February, 1999, in favour of the 1st respondent.
On the 5th December, 1998, the appellant contested the Local Government Council election for the office of Chairman, Nsit Ibom Local Government Area of Akwa Ibom State. He contested the election on the platform of the All Peoples Party (APP). The 1st respondent also contested the election to the same office of Chairman, Nsit Ibom Local Government Area of Akwa Ibom State on the platform of the Peoples Democratic Party (PDP).
At the conclusion of the election, the 1st respondent won and was declared winner of the said election with (12,189) votes to the petitioner’s (7,518) votes.
The appellant was dissatisfied with the result of the election. He then presented an election petition before the Local Government Election Petition Tribunal in Akwa Ibom sitting at Uyo.
In the petition, the appellant alleged that the election was characterised by various forms of electoral malpractice, in that, while elections did not hold in twenty-seven (27) of the seventy (70) polling stations in the local government area as a result of various forms of violence, seizure of ballot boxes and other polling materials, the various presiding officers and ward returning officers allocated votes for the parties to the contest and gave most of the votes to the benefit of the 1st respondent which votes so illegally contrived bloated the scores of the said 1st respondent and created the situation whereby the said 1st respondent was declared to have scored a majority of the votes cast at the election. He then prayed the tribunal as follows:-
“That it be determined that the 1st respondent was not duly elected by a majority of lawful and valid votes cast at the election and that the petitioner won the election aforesaid having scored a majority of the lawful and valid votes cast at the election and further had 25% of the votes cast in at least 66% of the wards in Nsit Ibom Local Government Area and ought to have been returned.”
The respondents filed replies to the petition and denied the allegations contained in the petition.
At the hearing of the petition before the tribunal, the appellant called evidence and the respondents also called evidence.
The tribunal in a reasoned judgment dated 16th February, 1999, dismissed the petition. Being dissatisfied with the decision of the tribunal, the appellant has appealed to this court.
He filed one original and with the leave of the court, three (3) additional grounds of appeal with particulars as follows:
Briefs of argument were filed and exchanged by the parties.
Based on the four (4) grounds of appeal, the appellant formulated four (4) issues for the determination of the appeal. The issues read as follows:
“(1) Whether the tribunal properly considered the case of the petitioner and against the case of the respondents properly assessed the evidence led at the trial.
(2) Whether the petitioner needed to prove all the averments in his pleadings in order to succeed on the declarations sought.
(3) Whether the non-joinder of presiding officers of the (27) polling stations vitiated the petition.
(4) Whether the petitioner properly and duly linked the 2,067 unaccredited voters’ cards to the facts of his case to invoke a consideration of the issues raised on the said cards.”
The 1st respondent also filed brief of argument and formulated four (4) issues for determination, namely:-
“(i) Whether the tribunal properly evaluated the evidence led by the parties.
(ii) Whether the appellant successfully led satisfactory evidence in proof of his petition.
(iii) Whether the presiding officers who manned the 27 polling stations ought to have been joined as necessary parties.
(iv) Whether the appellant successfully established before the tribunal the relevance of the wrapped (27) batches of voters’ cards, Exhibits F – F26, to spare the tribunal a further independent investigation.”
A careful consideration of the issues (Nos. 1-4) formulated by the appellant and issues (Nos. 1-4) formulated by the 1st respondent in that order, are identical in substance. The learned counsel on both sides are saying the same thing in different words. I therefore think that a consideration of the issues as formulated by the appellant will resolve all the issues raised by both parties in this appeal.
I will start with a consideration of issues No.2 and No.3 in the appellant’s brief of argument. It reads:-
“(2) Whether the petitioner needed to prove all the averments in his pleadings, in order to succeed on the declarations sought.
(3) Whether the non-joinder of the presiding officers of the 27 polling stations vitiated the petition.”
In his brief of argument the appellant was alleging falsification of election results in the 27 polling stations pleaded in paragraph 4 of the petition. He said the ingredient of the falsification was that those who were said to have voted at the stations, whose names were ticked in the register of voters did not actually vote.
The result was therefore false and incorrect.
He referred to the case of Nwobodo v. Onoh (1984) 1 SC 1; (1984) 1 SCNLR 1 and submitted that even where the allegation of crime has been made in the pleading, it may be possible to prove the case without the proof of the crime and where that is so, as in this case, then the mere fact that the crime has not been proved is no bar to proving the case on some other evidence, on the balance of probabilities.
He referred to section 137(1) of the Evidence Act and said what the Evidence Act requires is that the crime, not the case, shall be proved beyond reasonable doubt.
He said a pleader who has pleaded more than he strictly needed to have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited ones.
He referred to Omaboriowo v. Ajasin (1983) 10 S.C. 178; (1984) 1 SCNLR 108 and Arab Bank Ltd. v. Ross (1952) 2 Q.B. 216, on which the Supreme Court relied in Omoborimvo v. Ajasin (supra).
He submitted that all the appellant needed to prove was that the figures in those 27 polling stations were false. It is immaterial that the falsity of the figures were produced by electoral violence, seizure of ballot boxes, or non-attendance of electoral officials.
According to Chief Assam what is material is that the falsity of the figure has been established and ought to he expunged.
On the issue of non-joinder of the 27 presiding officers, he submitted that it did not detract from the competence of the tribunal to hear and determine the petition on its merit. He urged the court to allow the appeal.
In the petition before the tribunal, the appellant (then a petitioner) pleaded in paragraph 4 of the petition that the election was characterised by various forms of electoral malpractices, in that while elections did not hold in twenty seven of the seventy polling stations in the local government area, as a result of violence, seizure of ballot boxes and other polling materials, the various presiding officers and ward returning officers allocated votes for the parties to the contest and gave most of the votes to the benefit of the 1st respondent, which votes so illegally contrived bloated the scores of the 1st respondent and created the situation whereby the 1st respondent was declared to have scored a majority of votes cast at the election.
A cursory look at paragraph 4 of the petition before the tribunal clearly shows that the appellant made allegations before the tribunal that the election of 5th December, 1998 to the office of Chairman of Nsit Ibom Local Government Council was characterised by various forms of electoral malpractices.
That while election did not hold in 27 polling stations as a result of violence, the various presiding officers and ward returning officers in those 27 polling stations allocated votes to the parties in the contest.
That they allocated most of the votes to the 1st respondent, thereby bloated his scores and made it possible for 1st respondent to be declared the winner of the election.
The respondents denied the allegations. The onus is therefore on the appellant to prove the allegations.
A look at the allegations in paragraph 4 of the petition reveals that against the various presiding officers and ward returning officers covering the 27 polling stations, they are alleged to have allocated votes for the parties to the contest and gave most of the votes to the benefit of the 1st respondent. They are accused of creating the situation whereby the 1st respondent was declared to have scored a majority of the votes cast at the election, even though election did not hold. I think this is an allegation bordering on falsification of the election results.
Where an issue is joined on an allegation or imputation of crime by parties to any proceeding (including election petition) be it criminal or civil, the party who alleges the commission of the criminal offence or electoral offence is by virtue of section 138(1) of the Evidence Act 1990 required to prove beyond reasonable doubt – Shiek Ahmed El-Tijjani v. Ibrahim Saidu (1993) 1 NWLR (Pt.268) 246 at 256; Nwobodo v. Onoh (1984) 1 SCNLR 1. In view of the averment in paragraph 4 of the petition, it is my view that the burden was on the appellant as petitioner to prove the averments beyond reasonable doubt.
As indicated above, the allegations in paragraph 4 of the petition were made against the various presiding officers and ward returning officers of the alleged affected 27 polling stations. A question arises; should the said presiding officers and the ward returning officers be made a party to the petition?
Section 83(2) of Decree No. 36 of 1998 enjoins the petitioner to join them.
It says;
“The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer or any other person who took part in the conduct of an election, the Electoral Officer, Presiding Officer, a Returning Officer or that other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party.”
Paragraph 48(1) of Schedule 5 to the Decree, with particular reference to the complaints in the petition vis-a-vis officials of the Commission also provides in the vein that “Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer or any other official of the Commission, he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party; but an Electoral Officer, a Presiding Officer or Returning Officer shall not be at liberty to decline from opposing the petition except with the written consent of the Attorney-General of the State concerned or Attorney-General of the Federation, as the case may be.”
A critical analysis of the combined provisions or section 83(2) of Decree No. 36 of 1998 and paragraph 48(1) of Schedule 5 to the Decree shows clearly that where an election petition complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other official of the Commission, that officer shall for all purposes be deemed to be a respondent and shall be joined.
The joinder imposed by paragraph 48(1) of Schedule 5 to the Decree, is not a joinder at the discretion of the petitioner. Once a petitioner complains of the conduct of an official of the commission, the petitioner is duty bound to join that officer. It would be unfair a tribunal to have the conduct of such officer damnified without giving the officer a hearing. Equally, it would be most unfair to set aside the declaration and return of the respondent on the basis of a misconduct of an officer of the Commission who was not given a hearing.
A question arises: what is the effect of non joinder of a person declared a necessary party in an election petition, where the statute makes it mandatory that he must be joined?
The answer was copiously given by the Supreme Court in Omoboriowo v. Ajasin (1984) NSCC 81 at 97; (1984) 1 SCNLR 108 at 130. It says:
“Where the petition complains of the conduct of a Returning Officer, he shall for all purposes be deemed to be a respondent.
The effect of non-joinder of the Returning Officer where allegations of misconduct are made against him is that proof of the misconduct will not be entertained by the Court in the absence of a joinder.”
Still on the consequence of not joining INEC officials in a petition alleging electoral malpractices against INEC official, Okunola, J.C.A. stated in Gbadamosi v. Azeez (1998) 9 NWLR (Pt.566) 471 at 472, ratio I as follows:-
“In an allegation of electoral malpractices against an official of the Electoral Commission, the non-joinder of the Electoral Commission has the consequence of depriving the tribunal of jurisdiction to adjudicate and pronounce on the issues which fundamentally affect the proper functioning of the commission in the exercise of its jurisdiction under the relevant Decree. In the instant case, as NECON was not joined to the action, neither the Tribunal nor the Court of Appeal has the jurisdiction to pronounce on issues of corrupt practices levied against NECON presiding officer.”
See Chime v. Ndu (1993) 2 NWLR (Pt.277) 533 at 556 (referred to and followed) (p.475).
On the authorities, neither the tribunal nor the Court of Appeal is competent to entertain proof of the misconduct alleged in paragraph 4 of the petition before the tribunal in the absence of a joinder. See Omoboriowo v. Ajasin (supra) at page 97.
In his argument before us, Chief Assam E. Assam, learned counsel for the appellant said it was true the appellant (as petitioner) made allegations against the presiding officer but the appellant abandoned the allegations and proceeded to prove his case with evidence that does not require proof of misconduct.
This argument made me to have a look at the allegations in paragraph 4 of the petition once again.
Paragraph 4 of the petition is the crux of the petition. All other paragraphs of the petition are fallout from paragraph 4.
For instance, paragraph 4 alleges inter alia, that the presiding officers illegally contrived votes for the purpose of the election. Paragraph 5 of the petition goes further to say –
‘”The total number of vote illegally contrived for the purpose of this election from the results above shown is 1,602 for APP and 8,181 for PDP and your petitioner prays that those illegally contrived votes be voided and deducted from the results of the election in order to show the actual valid votes cast at the election.”
If paragraph 4 of the petition has been abandoned and remains unproved, it means no votes were illegally contrived by the presiding officers; it means the presiding officers and ward returning officers did not allocate votes for the parties to the contest and thereby gave most of the votes to the benefit of the 1st respondent.
In other words, it means that all the allegations made in paragraph 4 were not proved by the appellant before the tribunal.
On the totality of the foregoing, I am of the firm view that since all the allegations of malpractices in this case were made against the INEC officials, namely, the presiding officers and ward returning officers, the appellant (as petitioner was under a duty to have joined the said officers as co-respondents.
Failure to join the officers has deprived the tribunal the competence to adjudicate and pronounce on the issues raised in the allegations against the officers.
Consequently, the appellant (as the petitioner) failed to prove his petition.
In answer to issue No.2 formulated by the appellant therefore, I will say the petitioner needs to prove as many of the arguments in his petition as would enable him to succeed, after abandoning or withdrawing some of the averments in the petition; but in this present case under consideration, there is no other averments that can sustain the petition after the purported abandonment of paragraph 4 of the petition.
As regards issue No.3 formulated by the appellant. I will answer the question in the affirmative, that is to say, that the non-joinder of the presiding officers of the 27 polling stations in dispute in this case vitiated the petition of the appellant.
Having come to that conclusion. I think there is no need to go into the consideration of issues Nos. I and 4 formulated by the appellant. Their consideration would amount to an academic exercise which has become irrelevant in the circumstances.
On a careful consideration of the totality of the evidence before the tribunal, I think this appeal is very unmeritorious and should be dismissed.
I therefore dismiss the appeal. I confirm the declaration and return of the 1st respondent as the Chairman-elect of Nsit Ibom Local Government Area of Akwa Ibom State.
The appellant shall pay (N3,000.00) three thousand naira to the 1st respondent.
Other Citations: (1999)LCN/0579(CA)
