Senator Chris Adighije V. Hon. Nkechi J.N. Nwaogu & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
EJEMBI EKO, J.C.A.
On 28th April, 2007 the re-scheduled election in the Abia Central Senatorial District was held to elect a Senator representing the District in the Senate of the Federal Republic of Nigeria. At the end of the election the Independent National Electoral Commission, 2nd Respondent in the petition and this appeal, declared the 1st Respondent in the petition and this appeal, the winner and accordingly returned her as duly elected Senator for the said Abia Central Senatorial District of Abia State.
The appellant, dissatisfied with the declaration and return of the 1st Respondent by the 2nd Respondent, filed his petition at the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Umuahia on 26th May, 2007. The election Tribunal heard evidence and dismissed the petition on 26th November, 2007. The trial Tribunal, inter-alia, found and held that:
i. The Petitioner failed to establish that the 1st Respondent was disqualified, or not qualified to contest the election;
ii. all the averments in paragraph 17, except sub paragraph 17(iii), of petition were incompetent. They were all accordingly struck out. Only paragraph 17(iii) of the petition survived;
iii. there was no evidence to prove the averments in paragraph 17(iii) of the petition, and that the persons, who-allegedly hijacked the electoral materials were not linked to the 1st Respondent;
iv. the petitioner/Appellant did not make any effort to prove the averment in paragraph 21 of the petition. That it; that the 2 -10th Respondents unjustifiably cancelled the results for 6 wards in Isiala Ngwa South Local Government Area; and
v. from what was left of the 2nd ground on which the petition was brought i.e. that the 1st Respondent did not win with majority of lawful votes cast at the election, the Petition was not made out.
The petition was dismissed in its entirety. The judgment of the trial Tribunal is found at pages (34 – 659 of the record of the appeal.
The Notice of Appeal has 10 grounds reproduced, below that is
GROUNDS OEAPPEAL
GROUND ONE
The Honourable Tribunal erred in law and caused a miscarriage of justice in its conclusion that the Petitioner’s petition was incompetent for non-joinder of officers of the 2nd Respondent whose conduct the petitioner complained of.
PARTICULARS OF ERROR
(i) The Honourable Tribunal was not entitled to alter the effect of its Ruling delivered on 8th August, 2007 wherein it adjudged the complaint of non-joinder as being without merit as that Ruling subsists until set aside by a Court of competent jurisdiction and no party guise in the same proceedings.
(ii) The Honourable Tribunal neglected to consider the principle of issue estoppel enunciated in the case of FIDELITAS SHIPPING CO. LTD. VS. V/O EXPORTCHLEB (1966) 1 QBD P.630 at 642 cited and copiously quoted in the Petitioner’s Address and also cited and quoted with approval in the case of AWUSE V. ODILI (2005) 16 NWLR Pt.952, p. 416 at pp.466 – 467 on which the Honourable Tribunal relied upon in dismissing the Petition.
(iii) Had the learned Tribunal considered the applicable authorities on the subject due brought to its attention, it would have declined to thread the path of error which has led to a miscarriage of justice.
(iv) The reference to the case of NWANKWO & ORS V. YAR’DUA & ORS: CA/A/EP/06/07 delivered on 3/9/07 well after the Tribunal’s decision on 8/8/07 by the Tribunal was completely irrelevant as that case has not altered the principle long approved by the Supreme Court in LAWAL v. DANWODU (1972) 8 – 9 SC. P. 83.
(v) This error by the Honourable Tribunal led to the dismissal of the Petition without considering its merit.
GROUND TWO
The Honourable Tribunal misdirected itself and caused a miscarriage of justice when it held:
“We agree with the submission that an allegation that no election took place and yet results were generated from the polling station/units and collated at ward levels and Local Government level and declared at Constituency level is a complaint against the Presiding Officers at the polling units, the collating offices/Returning Officers.
PARTICULARS OF MISDIRECTION
(i) In accepting the submission, the Honourable Tribunal was in effect accepting the exact opposite of the case of the Petitioner and using it to his detriment.
(ii) The Petitioner specifically pleaded that there were no unit results or polling unit results backing up the false score of 40,691 allocated to the 1st Respondent in paragraph 21 of the Petition.
(iii) The Petitioner equally pleaded in paragraph 17 (xii) of the Petition that there was no collation of results at ward and Local Government levels.
(iv) The Honourable Tribunal was bound and circumscribed by the pleadings of the Petitioner and was in grievous error in accepting the 1st Respondent’s creation and importation of a new case for the Petitioner.
(v) The dismissal of the Petitioner’s case on the basis of the exact opposite of the case he presented has caused a grave miscarriage of justice.
GROUND THREE
The Honourable Tribunal misdirected itself and caused a grave miscarriage of justice when it held:
“In this Petition, the Electoral Officer for the Osisioma Ngwa Local Government Area was not joined, yet there is a complaint that electoral materials were not distributed to the various places where they were needed.”
PARTICUALRS OF MISDIRECTION
(i) The petitioner never made any such allegation in his petition and the Tribunal had no jurisdiction to consider a case which the Petitioner did not make.
(ii) The Honourable Tribunal was bound to restrict itself to the specific allegations in the petition and nothing more.
(iii) The error of the Tribunal in considering a case which the Petitioner did not make and using it against him has in the circumstances caused a grievous miscarriage of justice.
GROUND FOUR
The Honourable Tribunal erred in law in striking out paragraphs 17(i)(ii)(iv)(v) (vi) (vii) (viii) (ix)(x)(xi) and (xii) of the petition and thereby dismissing same.
PARTICULARS OF ERROR
(i) The Honourable Tribunal did not restrict itself to the averments in the petition as it was bound to do but resorted to inferences which it is precluded from doing.
(ii) The Petitioner did not make any allegation against any particular official nor did he question the conduct of any identifiable officer so as to warrant their joinder.
(iii) Had the Tribunal given the averments of the Petitioner their literal interpretation, the conclusion it arrived at would have been different and a miscarriage of justice avoided.
GROUND FIVE
The Honourable Tribunal erred in law in striking out paragraph 17(iv) of the petition which alleged:
“Absence of actual voting by the electorate at the polling units.”
PARTICULARS OF ERROR
(i) This allegation can by no cannon of interpretation transform into an allegation against 2nd Respondent’s officers
(ii) The Tribunal by resorting to inferences caused a miscarriage of justice as it considered a case the Petitioner did not make and used it against him.
GROUND SIX
The Honourable Tribunal erred in law in failing to determine the ultimate issue in the case to wit; whether or not there was an election in Osisioma Local Government Area on the day in question.
PARTICULARS OF ERROR
(i) Petitioner and his witnesses gave evidence that there was no election.
(ii) All the Respondents’ witnesses agreed on non-accreditation of voters.
(iii) The 1st Respondent’s written Statement, Exhibit NN showed that she did not vote on the day in question.
(iv) The 2nd – 10th Respondents defied two orders of the Tribunal to make’ available to the Petitioner, Certified Copies of the voters’ Register which is the only way of showing that voting took place.
(v) All the documents produced by the Respondents in proof of the holding of an election were hurriedly contrived as evidenced by the numerous unexplained mistakes duly pointed out to the Tribunal.
(vi) The Tribunal rather than going to the root of the matter resorted to a technical point in the face of glaring injustice.
GROUND SEVEN
The Honourable Tribunal erred in law when it struck out the relevant paragraphs of the Petitioner’s petition on the ground of non-joinder of officers of the 2nd Respondent.
PARTICULARS OF ERROR
(i) It is the duty of the Respondents to raise the issue of non-joinder of necessary parties at the earliest opportunity.
(ii) They filed their pleadings, took part in the pre-hearing conferences, cross-examined Petitioner’s witnesses and called their own witnesses without raising the issue.
(iii) By paragraphs 49(1) (2) (3) (4) and (5) of the 1st Schedule to the Electoral Act, the Respondents were precluded from raising the objection by way of Address -without an application in line with paragraph 6(2) of the Practice Direction and the Tribunal erred in striking out the relevant paragraphs of the petition.
(c) The error has caused a miscarriage of justice in the circumstances.
GROUND EIGHT
The Honourable Tribunal erred in law when it held:
“We agree with the submission of Counsel for the 1st Respondent that the proviso to S.144 of the Electoral Act, 2006, only has the effect of saving a petition from being struck out, but cannot save the paragraphs in which the allegations or complaints are contained. These paragraphs have to be struck out or where evidence has been received such evidence shall have discountenanced.”
PARTICULARS OF ERROR
(i) A literal interpretation of section 144(2) of the Electoral Act, 2006 does not admit of the qualification introduced by the 1st Respondent and accepted by the Tribunal.
(ii) The effect of striking out the paragraphs of Petitioner’s Petition is to vitiate or void the petition in spite of the joinder of the 2nd Respondent and in defiance of S.144(2) of the Electoral Act which is intended to save petitions once the Commission is joined.
(iii) All the authorities relied upon by the Tribunals were not based on identical provisions of law.
GROUND NINE
The Honourable Tribunal erred in law when it held that:
“The submission of the learned Silk of Counsel for Petitioner cannot be accepted otherwise it will create a plethora of problems. The judgment in Exhibit E i.e. suit No. HOH/7M/2007 – NWAOGU V. A.G. ABIA STATE delivered on 3/8/07, cannot but have effect from the day the Government White paper, which it quashed was made or Published.”
PARTICULARS OF ERROR
(i) A judgment takes effect from the date it is pronounced and Exhibit E did not declare the ‘Government White paper null and void ab-initio.
(ii) A judgment delivered after the 1st Respondent had contested the election as an indicted person cannot validate her candidature “at the time of the election.”
(iii) The plethora of problems which the Tribunal envisaged cannot change the position of the law.
GROUND TEN
The judgment is against the weight of evidence.”
For proper appreciation of the issues raised in the grounds I will summarize the facts of the preliminary objection argued by the Counsel for 2-10th Respondents in the course of the proceedings. On 30th July, 2007 Sir T. Atulegwu Nwamara of Counsel to the 2- 10th Respondents filed notice of preliminary objection to the petition predicated, among other things’ on the grounds -:
(i) That the Hon. Tribunal had no jurisdiction to entertain the petition for non-compliance with the Electoral Act, 2006, particularly sections 32(4) and 144(2) thereof;
(ii) That the Petitioner failed to join the officers who took part in the conduct of an election and whose conduct be complains of, in breach of section 144(2) of the Electoral Act, 2006; and
(iii) That the 5th – 10th Respondents perceived to have taken part in the conduct of the election are nonexistent administrative and/or statutory offices.
The 1st Respondent was put on notice of this motion of the 2-10th Respondents argued on 7th August, 2007. Neither the 1st Respondent nor her Counsel participated in this particular preliminary objection heard on 7th August, 2007. The trial Tribunal in its reserved Ruling, delivered on 8th August, 2007, found no merit in the objection and dismissed it for being frivolous. The Tribunal stated at page 463 of the record:-
We hold the view that none of the grounds, as argued by learned Counsel to the 2nd – 10th Respondents has merit and the same are hereby struck out (sic) for lacking in merit.” We frown at the way and manner learned Counsel became oblivious of what is clearly in the petition and ended up filing such time wasting objection before this Tribunal.
In spite of the Ruling of the Tribunal on 8th August, 2007, at the close of the evidence and in their respective final addresses, both counsel for 1st Respondent, and 2 -10th Respondent raised the issue of:-
The petition (being) incompetent for non-joinder of electoral officers against whom the various allegations were made which made the entire paragraphs 16 to 22 of the Petition incompetent.
The learned Counsel for the Petitioner/Appellant, O.A. Obianwu, SAN, relied on his brief of argument at the Tribunal that the trial Tribunal having, “on 8th August, 2007, dismissed this argument on non-joinder, the Respondents could no longer legitimately put forward the same contention again” ‘ and that this is the well known rule of issue estoppel. He cited FIDELITAS SHIPPING CO. v. V/O EXPORTCHLEB (1965) 2 All ER 4 at p.9. The learned SAN further argued that by the proviso to section 144(2) of the Electoral Act, 2006 non-joinder of the staff of the 2nd Respondent does not vitiate a petition once the Commission is joined as a party. The Tribunal was not persuaded by this argument. It held at pp. 654-656:-
We have considered these submissions; we also examined the records of the Tribunal. We are satisfied that on 8/8/07, the Tribunal delivered a Ruling on a preliminary objection filed by 2nd – 10th Respondents.
In his application, the learned Counsel for 2nd to 10th Respondents urged this Tribunal to dismiss the petition for, amongst other grounds, failure to join all the necessary parties. That objection was over-ruled and dismissed for lacking merit, as the Tribunal wanted to hear the petition on its merits.
In such circumstances, that ruling can not act as a bar to prevent the Tribunal from revisiting the point.
This is more so in the light of the recent authority on the point i.e. NWANKWO & ORS v. YAR’ADUA & ORS, an unreported decision of the full Court of Appeal sitting as the Presidential Election Petition Panel, in CA/A/EP/06/07 delivered on 03/09/07.
We will be failing in our duty if we closed our eyes to this case which is on the effect of non-joinder and the proviso to S.144(2) of the Electoral, Act, 2006, simply because we ruled earlier that an objection along that line lacked merit.
Having found that the Petitioner did not join the officers of 2nd Respondents, whose conduct, the Petitioner has complained of, the Tribunal has to determine the effect of such non-joinder.
The trial Tribunal, relying on AWUSE v. ODILI (2005) 16 NWLR (Pt.952) 416, held that where there is an allegation that the election was not conducted in certain areas of a constituency the petition on that allegation can not be entertained if the electoral officers and the presiding officers of those areas were not joined as parties in the petition. On this note the Tribunal concluded:- We agree with the submission of the learned Counsel for 1st Respondent that the proviso to S.144(2) of the Electoral Act, 2006, only has the effect of saving a petition where the question of non-joinder of necessary parties is raised from being struck out, but cannot save the paragraphs in which the allegations or complaints are constrained(sic). The paragraphs have to be struck out, or where evidence has been received, such evidence shall be discountenanced, See OMOBORIOWO & ORS v. AJASIN (1984) NSCC 81; EGOLUM v. OBASANJO (supra); ONWUDINJO v. DIMOBI (2006) 1 NWLR 961 318 and AWUSE v. ODILI (supra).
The Tribunal consequently struck out paragraphs 17(1),(ii), (iv), (v), (vi) (vii), (viii), (ix), (x), (xi) and (xii), and 20 of the petition, which in its view are referable to the officers of the 2nd Respondent who were not joined in the petition. Paragraph 17 (iii) of the petition was spared.
I will need to reproduce paragraphs 77, 18, 19, and 20 of the petition to make my point. They are:-
- The Petitioner pleads that there was no election in Osisioma Ngwa Local Government Area on the day in question. The Petitioner’s agents, members of other parties and even members of 1st Respondent’s party acknowledged that there was no election in the Local Government on the day in question. Specifically, the Petitioner pleads that the election was characterized by:-
(i) non-inclusion of result sheets amongst the electoral materials which were intended for use at the polling stations.
(ii) non-inclusion of result (ii) sheets intended for use at ward and Local Government levels.
(iii) Forceful hijacking and diversion of Electoral materials by supporters of the 1st Respondent.
(iv) Absence of actual voting by the Electoral at the polling units.
(v) Non display of ballot boxes before voting.
(vi) Absence of presiding officers and other Agents of 2nd Respondent at polling stations and resultant non accreditation of voters.
(vii) Non-Entry of results at polling stations into statutory forms at polling stations and no counter signature by party agents.
(viii) Non-announcement of results at Polling stations by agents of the 2nd Respondent.
(ix) Non-delivery of duly completed and countersigned result sheets to agents of the candidates.
(x) No step by step recording of results in from polling units to the Senatorial District Collation Center.
(xi) Result forms at ward and Local Government levels not stamped. Signed and counter-signed by relevant officers, agents of the 2nd Respondent, agent of the parties and security agents.
(xii) No collation of the result at ward and Local Government levels.
- In views of the foregoing, the Divisional police officer for Usisiorna Ngwa Local Government testified openly at the collation center for Abia Central Senatorial District declared that no election took place.
- The Transition Chairman for Osisioma Ngwa Local Government Area equally testified that no election was held in the Local Government. Based on the report which the Petitioner received the Petitioner wrote a letter dated 29th April, 2007 to the 3rd Respondent requesting that the purported report be cancelled. In spite of the unanimity amongst the law enforcement Agents’ the electoral officer and other parties except that of the 1st Respondent that no election took place in Osisioma Ngwa Local Government Area, the 2nd – 10th Respondents went ahead to declare the 1st Respondent as the winner of the election.
- The Petitioner specifically pleads that there were no units or polling station results backing up the false score of 40,671 votes allegedly scores by the 1st Respondent in the Osisioma Ngwa Local Government Area. The Respondents are hereby challenged to produce the units results from all the wards within the Local Government.
Let me for a moment go to the issues formulated in the various briefs of argument in this appeal. For the petitioner/Appellant O.A. Obianwu, SAN, identified four issues from the grounds of appeal’ Learned Counsel for the 1st Respondent, and 2nd – 10th Respondents also formulated four issues respectively. I do not think the issues formulated by the two learned Counsel for the Respondents are dissimilar from those formulated by the learned Counsel for the Petitioner/Appellant. Accordingly, I will, and I do hereby adopt those issues at pages 11 and 12 of the Appellant’s brief formulated by the Learned Senior Counsel, O.A. Obianwu SAN. They are:-
(i) Whether the Tribunal having held that the issue of non-joinder of officers of the 2nd Respondent was without merit could in the same proceedings turn around to hold that paragraphs of the petition were incompetent for the same non-joinder of officers of the 2nd Respondent- Ground 1.
(ii) Was the decision of the Tribunal striking out paragraphs 17(i), (ii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xii) and 20 of the petition on the ground of non-joinder of officers of the 2nd Respondent correct? -Grounds 2, 3, 4, 5, 7, 8 and 10.
(iii) Was the Tribunal correct in failing to decide the ultimate issue on which the parties contested the case to wit: whether or not there was election in Osisioma Ngwa Local Government Area on the day in question – Ground 6
(iv) Was the Tribunal correct when it held that Exhibit E operated retroactively? – Ground 9.
Issues (i) and (ii) can easily be consolidated. I intend to deal with them as such. I will however consider marrying issue (iii) of the Appellant with issues (iii) of the 1st Respondent, and 2nd – 10th Respondents respectively.
ISSUES (I) & (II)
The learned Senior Advocate for the Petitioner/Appellant in his brief of argument has rightly pointed out that at page 463 of the record of appeal the Tribunal had dismissed the preliminary objection founded on the issue of non-joinder of the officer’s of the 2nd Respondent who allegedly committed the acts or omissions pleaded in paragraphs 17 and 20 of the petition. I agree, as pointed out by the Learned Senior Advocate, that there was no appeal against that decision by any of the parties’ Similarly none of the parties invited the Tribunal to set aside that decision, in their final addresses or briefs of arguments at the Tribunal. Mike Onyeka Esq. of Counsel to 1st Respondent, and Sir T:A. Nwamara of Counsel to the 2nd – 10th Respondents re-presented the same issue without acknowledging the fact that the issue was raised earlier and had been previously dismissed by the Tribunal. They put fresh arguments on the matter relying on the cases of:-
– AWUSE V. ODILI (2005) 16 NWLR (PT.952) 416 – JIDDA v. KACHALLA (1999) 1 NWLR (Pt.599) 426
– BARAU V. DANSADAU (1999) 12 NWLR (PT.632) 653 – UDUKA V. OKWARAONYIA (1999) 4 NWLR (Pt.597) 35.
– OMOBORIOWO V. AJASIN (1984) 1 SC. 206 at 228 – EGOLUM V. OBASANJO (1999) 7 NWLR (PT.611) 355
– YUSUF v. OBASANJO (2003) 16 NWLR (Pt.847) 554 – BUHARI V. CBASANJO (2005) 13 NWLR (Pt.941) 1
– NGIGE V. OBI (2005) 4 NWLR (Pt.999) 1 – MOGHALU V. NGIGE (2005) 4 NWLR (Pt.914) 1
The authority of FIDELITAS SHIPPING CO. v. V/O EXPORTCHLEB (supra) cited by the learned SAN did not make any impression on the two Counsel for the Respondents nor the Tribunal, like the argument that in view of its earlier decision the Tribunal, not being an appellate Court or Tribunal, is functus officio and the Respondents were estopped from canvassing afresh or re-presenting the same issue in the same proceedings. As Lord Diplock, LJ in the FIDELITAS SHIPPING CO. v. V/O EXPORTCHLEB (supra) at p.9 had stated:-
In the case of litigation, the fact that a suit malt involve a number of different issues is recognized by the Rules of Court which contain provisions enabling on or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit the judgment on that issue is interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to show that the issue was wrongly decided.
See AWUSE v. ODILI (supra) at pp. 466 H – 467G.
That is exactly what these Respondents, through their respective Counsel, did at the trial Tribunal.
Now, if I may ask, what was the issue decided on 8th August, 2007 in the preliminary objection of the 2nd – 10th Respondents argued by their Learned Counsel? Is it not that in view of the averments in paragraphs 17 and 20, among others, tire petition was incompetent without the joinder of the necessary officers or agents of the 2nd Respondent? The preliminary objection was founded on section 144(2) of the Electoral Act, 2006. This much is acknowledged and admitted by the Tribunal. At page 454 of the record the Tribunal observed, and I agree that:-
We are satisfied that on 8/3/07, the Tribunal delivered a Ruling on a preliminary objection filed by the 2nd – 10th Respondents. In his application the Learned Counsel for 2nd – 10th Respondents urged this Tribunal to dismiss the petition for amongst other grounds, failure to join all the necessary ‘parties, that objection was overruled and dismissed for lacking in merits as the Tribunal wanted to heal the petition on its merits.
The Tribunal went further to hold erroneously that:-
In such circumstances, the Ruling can not act as a bar to prevent the Tribunal from re-visiting the point. This is more so in the light of the recent authority on the point i.e. NWANKWO & ORS v. YAR’ADUA & ORS an unreported decision of the Court of Appeal sitting as the Presidential Election Petition Panel in CA/PH/EP/06/07 on 3/9/2007.
The Presidential Election Petition Panel is not an appellate Tribunal or court. It is a first instance, or trial, Tribunal. Appeals from the National Assembly/Governorship and Legislative Houses Election Tribunal do not lie to the Presidential Election Petition Panel. Appeals from decisions of the National Assembly Election Tribunals lie, by dint of section 246(1)(b) of the 1999 Constitution, only to the Court of Appeal. That is by the way. There was no appeal from the decision of the Tribunal delivered on 8th August, 2007. That decision subsists. The Tribunal was functus officio by that decision, which is binding on all parties in that proceeding. The Respondents were estopped from representing the same issue or question for the Tribunal in their final addresses. The NWANKWO v. YAR’ ADUA case (supra) is not authority for the contention that a Court or Tribunal is at liberty to revisit its previous decisions and overrule itself.
In the brief of argument of the 1st Respondent at page 13, paragraph 4.9, there is a passage from the statement of the law on this matter by Uwais, JSC (as he then was) in MOHAMMED v. OLAWANMI (1993) 4 NWLR (PT.287) 254; (1993 5 SCNJ 126 to wit:-
Now, for estoppel to be established, whatever determination is made in the first proceedings must be the same question arising in the latter proceedings. Where the question in the second proceedings is not the same (i.e. not eadem quaisto) as that decided in the first then there can be no estoppel.
In the instant appeal the question or issue resolved by the Tribunal on 8th August, 2007 was the same question being represented or canvassed again, by the Respondents in their final addresses. And the trial Tribunal fell for it, unfortunately.
No trial judge or court has any legal justification to alter the effect of his own ruling or decision on an issue previously decided by him in the course of the proceedings: See NNAJIOFOR v. UKONU (1985) 2 NWLR (Pt.9) 686 at p.706. He can not also, as a general rule, set aside his own or another Judge’s previous ruling. Rehearing the matter upon which he has delivered his decision or judgment is not his function, but the function of the appellate or superior court: See GRACE AMANOBA v. ALEX OKAFOR (1966) 1 ALL NLR 205 at 207; CHIEF UKU V. OKUMAGBA (974) 1 All NLR (1) 475.
The Tribunal and Counsel for Respondents seem to misunderstand the issue or the problem on their hands. It was not that the Tribunal, in appropriate cases can not strike out a petition or portions oft for non-joinder of necessary parties. The issue that the Tribunal, in appropriate cases, can not strike out a petition or portions of it for non-joinder of necessary parties. The issue was whether the Tribunal could revisit and reverse its previous ruling or decision dismissing a preliminary objection on point of law. The authorities cited by Counsel for the Respondents including AWUSE v. ODILI (supra) pp. 468F – 469E; EGOLUM v. OBASANJO (supra); NWOKE v. EBEOGU (supra) and OMOBORIOWO v. AJASIN (supra) all espouse the principle that non-joinder of necessary parties in election petition is fatal. They are not, however, authorities for the proposition that the Tribunal or a Court of law can revisit its previous ruling or decision, rightly or wrongly rendered, and overrule itself. Contrary to the submissions of, all Counsel to the Respondents, AWUSE v. ODILI (supra) at pp. 466H – 467H is an authority for the point being made by Obianwu, SAN, of Counsel to Petitioner/Appellant that since the decision of the Tribunal dated 8th August, 2007 dismissing the preliminary objection founded, inter alia, on paragraphs 17 and 20 of the petition subsisted the Respondents in the same suit can no longer canvass or re-present that same argument in their final addresses, and that the Tribunal no longer had jurisdiction or power to revisit the issue and overrule itself on that previous decision. The Learned senior Advocate is right, in my view on this.
Before I leave this issue, I intend to briefly comment on section 144(2) of the Electoral Act, 2006 viz-a-viz section 133 of the Electoral Act, 2002. The two provisions appear to be in pari materia except for the proviso later introduced to Section 144(2) Electoral Act, 2006 that hitherto was absent in the Electoral Act, 2002. Section 144(2) of the Electoral Act, 2006 now reads:-
144.(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 shall for the purpose who took part in the conduct 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 party.
Upon comparing the provisions of section 133(2) of the Electoral Act, 2002 and section 144(2) of the Electoral Act, 2006, I am of the firm opinion that the law maker intends that the rigid provisions of section 133(2) of the Electoral Act, 2002 should be diluted. The Proviso introduced to section 144(2) of the Electoral Act, 2006 now recognizes the basic principle of law in administrative law, or the law of agency that where the principal is disclosed or known and could be sued the agent should not be sued or proceeded against as a necessary party. The PROVISO in section 144(2) of the Electoral Act, 2006 has been deliberately introduced for a purpose. The duty of every Court interpreting a statute is to bring out clearly the purpose and intention of the law maker. See OBUSEZ v. OBUSEZ (2007) 30 NSCQR 329. The introduction of the Proviso to section 144(2) in pari material substantially with section 133(2) of Electoral Act, 2002, shows the law makers intention to alter section 133(2) of Electoral Act, 2002 and its effect. The proviso has altered the state of the law on this issue. Where the words of the statute are clear and unambiguous, they must be given their ordinary grammatical meaning, no more. AMAECHI v. INEC (2008) 5 NWLR (Pt.1080) 227 at P.437.
In the light of all I have been saying on issues (i) and (ii) I hereby resolve the issues against the Respondents in favour of the Petitioner/Appellant. The learned trial Tribunal erred in law to have revisited its earlier decision delivered on 8th August, 2007 and reversed the same. It is not right in law for the Tribunal to do so. The effect is that the ruling or decision of the Tribunal of 8th August, 2007 subsists. Paragraphs 17 and 20 of the petition therefore remain extant. I allow the appeal on these issues.
On the remaining issues I intend to address issue (iv) before issue (iii). Issue (iv) is whether the Tribunal was correct when it held that Exhibit E operated retroactively?
At pages 647 and 648 of the record of appeal the trial Tribunal made the following findings:-
The Tribunal has considered these submissions, and we are satisfied that since the said Report of the Administrative Panel of Inquiry and the Government White Paper were not put before the Tribunal, the question whether or not the 1st Respondent was disqualified can not be held to have been proved, to warrant a consideration of that issue
……..
It is our view that the Judgment of the Abia State High Court sitting at Ohafia, quashing the indictment of 1st Respondent in the Report as well as the White Paper is only meaningful its effect is retroactive. It can not be seriously argued that a judgment of an appellate court quashing a conviction by lower court, only operates or has effect from the date of the judgment See BUREMOH v. AKANDE (2000) 15 NWLR (690) 260 at 279A.
The only arguments put up by the Appellant’s Counsel on this issue are that:-
(i) Exhibit E did not operate retroactively;
(ii) Exhibit E took effect from 3rd August, 2007 when it was pronounced;
(iii) And having not declared the indictment, subject matter of that case, null and void ab initio, the operative date of the judgment was 3rd August, 2007 after the election in question.
I do not understand the line of reasoning. The learned Senior Counsel has some problem in this reasoning. He seems to say that though before the election the 1st Respondent was disqualified and that after the election the disqualification was nullified. He is merely blowing hot and cold at the same time. Where does the argument lead to? The argument now seem academic with no practical utilitarian value to the Petitioner/Appellant. A matter is academic when it is raised for the purpose of intellectual argument qua reason, which can not in any way affect the determination of the live issues in the matter. See GOVERNMENT OF PLATEAU STATE v. ATTORNEY-GENERAL OF FEDERATION (2005) 3 NWLR (Pt.967) 346 at 419; and ALH. ATIKU ABUBAKAR & ORS. V. ALH. UMARU YAR’ADUA & ORS. (SCN.288/2007 of 25th January, 2008). In any case the
Petitioner/Appellant has no answer to the authority of BUREMOH v. AKANDE (supra), which in my opinion, is the correct position of the law. This same satanic Report and Government white paper on it quashed in Exhibit E, was also the subject matter of ACTION CONGRESS & ANOR v. INEC (2007) ALL FWLR (Pt.378) 1012.
It was also quashed and nullified in that earlier decision, like many others on it.
I find no substance in issue (iv) and I hereby resolve it against the Appellant. The appeal on this issue is hereby dismissed.
The remaining issue is issue (iii), which is:-
Was the Tribunal correct in failing to decide the ultimate issue on which the parties contested the case to wit: whether or not there was election in OSISIOMA Ngwa Local Government Area on the day in question – Ground 6.
Mike Onyeka Esq. of Counsel for the 1st Respondent had couched the question differently. His version of the issue is:- Did the Tribunal in the circumstance fail to decide the issue of whether or not there was election in Osisioma Ngwa Local Government Area?
The 2nd – 10th Respondents’ version of the issue on the other hand, is-
Whether the Tribunal considered the issue of whether there was election in Osisioma Ngwa Local Government Area (Ground 6).
The Petitioner/Appellant listed a total of 29 witnesses, including himself, whose statements on oath were attached to the petition. At the trial he called a total of 5 witnesses who testified out of the 29 listed. The 1st Respondent listed a total of 62 witnesses, including herself; as the potential witnesses to testify.
Only 8 out of the 62 witnesses, including the 1st Respondent herself, testified in the end. Of the 4 persons listed as witnesses to testify for the 2nd – 10th Respondents only the Returning officer for Abia Central District testified as Pw.9. A number of documents were admitted in evidence as Exhibit. Before then issues were joined on the pleadings duly exchanged.
On the grounds on which the petition was brought the Petitioner in his ground 2 alleged that the 1st Respondent did not win the election with the majority of lawful votes cast at the election. The totality of the Petitioner’s averments in paragraphs 16 – 22 of the petition is that there was no election in Osisioma Ngwa Government Area and that the 1st Respondent was wrongly credited with some “bogus result from Osisioma Ngww Local Government Area.” The Tribunal in its final judgment struck out averments in paragraph 17, except sub-paragraph (iii) thereof, and paragraph 20 of the petition. The Tribunal devoted substantial portion of the judgment to justifying why the averments in paragraphs 17 and 20 should be struck out. Then at page 659 of these surviving paragraphs are not sufficient to support, let alone prove, the compliant in ground two.
For instance, as stated earlier in the judgment, petitioner did not make any effort to prove the averments in paragraph 21 of the petition, i.e. that the results were unjustifiably cancelled. There is no evidence to prove the averment in Paragraph 17 (iii) let alone link the hijackers of the electoral materials with the 1st Respondent. From what was left of the facts averred in support of ground two we are satisfied that it has not been proved.
We already held that the 1st Respondent was not disqualified to contest the election.
On the whole therefore, this petition lacks merit and it is hereby dismissed”.
On this grave allegation that there was no election in Osisioma Ngwa Local Government Area and yet the 1st Respondent was credited with some bogus result the Tribunal did not both or to evaluate the totality of the evidence. This may be so because it had wrongly struck out averments in paragraph 17 (except sub paragraph (iii) thereof) and paragraph 20 of the petition. Paragraphs 18 and 19 of the petition were unaffected. They were not struck out. They also allege the fact that there was no election in Osisioma Ngwa Local Government Area to justify proper evaluation of the evidence before the Tribunal on whether or not there was election in Osisioma Ngwa Local Government Area, on 28th April, 2007. It was incumbent on the Tribunal to proper evaluation of the evidence before the Tribunal on whether or not there was election in Osisioma Ngwa Local Government Area, on 28th April, 2007. It was incumbent on the Tribunal to consider and evaluate the evidential materials before it before making its findings. See MOGAJI v. ODOFIN (1978) 4 SC 91. The parties adduced conflicting evidence on the issue whether or not election was conducted in Osisioma Ngwa Local Government Area. Where there are conflicting assertions the court or Tribunal must consider both and resolve the dispute. ODUTOLA v. ALLERU (1985) 1 NWLR 92.
The trial Tribunal, in holding that “from what was left of the facts averred in support of ground two” the allegation that there was no election in Osisioma Ngwa Local Government Area “has not been proved depended, in no small way, on only the averments or pleadings in the petition, and not on the conflicting evidence adduced by the parties. It is trite that pleadings are no evidence and that every averment in the pleading must be proved by credible evidence. Section 135 of the Evidence Act enacts that whoever asserts the existence of any facts must prove that those facts exist.
The Tribunal had earlier in the judgment struck out, all averment in paragraph 17 (except sub paragraph (iii) thereof) and paragraph 20 of the petition. I earlier held that the exercise was fairly treated by the Tribunal. The Petitioner’s allegations that there was no election in Osisiosra Ngwa Local Government Area on 28th April, 2007 and that the 1st Respondent was credited with bogus result were predicated largely on the averments wrongly struck out by the Tribunal. Those averments wrongly struck out and evidence on them were not considered and decided upon in the final judgment of the Tribunal.
From the manner the Tribunal handled the issue: whether or not there was election in Osisioma Ngwa Local Government Area it can not be, reasonably, said that the Tribunal considered the issue, albeit, properly. The Tribunal also did not decide on the issues raised in the averments wrongly struck out.
The Tribunal was under a duty to consider and evaluate evidence before it. See MOGAJI v. ODOFIN (supra). All averments in paragraphs 17 and 20 of the petition and the evidence on them are part of this totality of facts and evidence in the dispute. A decision on this petition without considering paragraphs 17 and 20 of the petition is no doubt perverse. It is no decision in law. I resolve this issue – whether as presented by the Appellant’s Counsel or the two Respondents, in favour of the Appellant and against the Respondents. I allow the appeal on this issue.
Respondents, in favour of the Appellant and against the Respondents. I allow the appeal on this issue.
The matter does not end on this note. The question I pose here is:- Do I remit the case to the trial Tribunal, differently constituted, to try the issue de novo, or do I invoke the powers of this Court under section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 9 of the Court of Appeal Rules, 2007 to evaluate the evidence the Tribunal shied away from and decide the question?
This court recently in INAKOJU v. ADELEKE & Ors. invoked the powers vested in the Court by the Court of Appeal Act, 2004 to determine the merits of the case brought on the originating summons and affidavit evidence. The Supreme Court affirmed the invocation. See INAKOJU v. ADELEKE & ORS. (2007) 29 NSCQR (Pt.2) 955. In that case however, the facts were not so much in dispute. There was no conflict of evidence, nor was there any divergent oral evidence of the disputing parties to consider.
The situation in JADESIMI v. OKOTIE-EBOH (1986) 1 NWLR (Pt.15) 264 is different as could be gleaned from what Karibi-Whyte, JSC said at page 274 of the report; to wit:-
Concisely stated, the powers of the Court of Appeal with respect to determination of appeals before it is by way of re-hearing. The word re-hearing in the context means a hearing on printed records by re-examining the whole evidence both oral and documentary tendered before the trial court and forwarded to it. It means an examination of the case as a whole. The Appeal Court is entitled to evaluate the evidence and may reject conclusions of the trial Judge from the facts which do not flow from the evidence or may be regarded as perverse. Those are very wide powers which enable the Appellate Court to exercise all the powers of a court of first instance.
In OKOYE v. SANTILI (1990) 2 NWLR (PT.130) 172 it was held that by virtue of section 16 of the Court of Appeal Act, 1976 (now section 15 Court of Appeal Act, 2004) the Court of Appeal, can, In order to avoid multiplicity and legal proceedings concerning any of those matters, grant all such remedies as any of the party may appear to be entitled to before the trial court in any appeal before it, in all cases where a court has wide powers or discretion, the exercise of the discretion is only limited by the peculiar circumstances of each case.
This matter is distinguishable from those cases the wide powers of this court were invoked to avoid multiplicity of actions and legal review the trial court’s decision on the evidence in the printed record, or it was merely only on the consequential relief or remedies in the suit. The instant case poses a different scenario. There is conflict of oral evidence. That will require assessment of the credibility of the witnesses. And it may involve the use of the advantage of watching the comportment and demeanour of witnesses, which in this court we are not privileged to have the opportunity of. In the circumstance I am constrained to suggest that this case, on the very narrow question – whether or not on 28th April, 2007 election infact was conducted in Osisioma Ngwa Local Government Area, should be remitted to the lower Tribunal, differently constituted. For avoidance of doubt the matter to be tried de novo is whether or not election was conducted in Osisioma Ngwa Local Government Area for the Senatorial Election Scheduled for 28th April, 2007 as pleaded in paragraphs 17, 18, 19 and 20 of the petition and the paragraphs of the various replies of the Respondents duly joining issues on it. I hereby order accordingly.
In the final result, for the reasons set out in this judgment, the appeal succeeds in part. The decision of the trial Tribunal dismissing the petition on grounds of the purported disqualification of the 1st Respondent from contesting the election is hereby affirmed. The order striking out paragraphs 17 and 20 of the petition is hereby set aside. The petition shall be heard de novo by the Tribunal differently constituted on the question whether or not election was conducted in Osisioma Ngwa Local Government Area on 28th April, 2007 as pleaded in paragraphs 17, 18, 19 and 20 of the petition and the paragraphs of the Respondents’ replies joining issues on the question and the reply of the Petitioner to the replies of the Respondents on that singular question.
I hereby order the 1st Respondent to pay N30,000.00 as costs to the Petitioner/Appellant.
Other Citations: (2008)LCN/2765(CA)
