ALL PROGRESSIVES GRAND ALLIANCE & ANOR. V. ANDY EMMANUEL UBA & ORS.
(2011)LCN/4811(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of September, 2011
CA/E/EPT/18/2011
RATIO
ELECTION PETITION: NATURE OF AN ELECTION PETITION
It is settled law that election petitions are sui generis and should be treated in that domain or realm. See ABUBAKAR V. YAR’ADUA (2008) All FWLR (Pt.404) 1409 at 1450. This being the nature of election petitions, the courts have consistently held to the effect that election petitions are different from normal civil cases. They are conducted under the peculiar provisions of the relevant electoral law and not necessarily related to the ordinary civil rights and obligations of the parties concerned. An election petition is a proceeding that is of its own kind possessing an individualistic character, unique or like, only to itself. In other words, the proceedings have no affinity with any action known to common law. See BAMIGBOYE V. SARAKI (2009) All FWLR (Pt. 484) 1573 at 1595. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
GROUNDS OF ELECTION PETITION: WAYS THROUGH WHICH AN ELECTION CONDUCTED UNDER THE ELECTORAL ACT CAN BE QUESTIONED OR CHALLENGED
The Electoral Act in Section 133(1) not only provides for the means or process of challenging or questioning an election and return made in any election conducted pursuant to the provisions of the Act, but also the complaints that are permissible in challenging or questioning such election. An election conducted under the Act can only by questioned by “an election petition” and the complaints permissible therein, are those of “undue election” or “undue return”. The Section in question specifically provides that the person elected or returned should be joined as a respondent in the petition. It is my considered view that the provision of Section 133(1) of the Electoral Act (supra), cannot be construed as stipulating that only the person elected or returned in an election conducted pursuant to the provisions of the Electoral Act, is to be the only respondent in an election petition. In other words, it cannot be argued that an election petition is to have only the person elected or returned as the sole respondent by virtue of the provision of Section 133(1) (supra). This is because the operative words in the provision of Section 133(1) in this regard are “joined as a respondent” and not “joined as the respondent”. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JOINDER PARTIES IN AN ELECTION PETITION: STATUTORY PROVISION OF SECTION 137 OF THE ELECTORAL ACT AS REGARDS JOINDER OF PARTIES AS RESPONDENTS TO AN ELECTION PETITION
Section 137 of the Act while stipulating that the person whose election is complained of shall be referred to as “the respondent” goes further to provide for the joinder in the Petition of other INEC officials against who the petitioner complains of their conduct in the election as respondents. The provisions of Section 137 of the Electoral Act are however clear that once INEC is joined as a respondent in a Petition, there is no need to join any of its officials the petitioner complains of their conduct in the election as INEC having been made a respondent therein, shall be deemed to be defending the Petition on its own behalf and on behalf of its officers, to matter the nature of the complaints against such officials. It is my view that given the provisions of Sections 133(1) and 137 of the Electoral Act, the one person that must be made a party to a Petition apart from INEC, is “the person whose election or return is being questioned or challenged”. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ELECTION PETITION: DUTY OF A TRIBUNAL OR COURT NOT LOOK AT ANY OTHER PROCESS EXCEPT THE PETITION FOR THE PURPOSES OF RESOLVING THE ISSUES RAISED IN
I believe the law is settled to the effect that in considering an application such as that of the 1st Respondent that the Tribunal ruled on, the Tribunal or this Court cannot legally look at any other process except the Petition for the purposes of resolving the issues raised in, or by, the application. Indeed, the Appellants themselves stated this much in their Brief of Argument. It is therefore a mystery that they later placed reliance on the Reply filed in the Petition by the 3rd Respondent to advance their case. True as it is, that election is a process, it is however indisputable that the process, necessarily consists of several distinct parts or segments and ends with the declaration or return by INEC of the candidate that won the election at the polls. Contest at the polls by the candidates in an election, on the appointed date of the election is also called “election”. It is from this stage of the election process that the 2nd Respondent determines the winner of the election amongst the candidates that contested at the polls having regard to the votes cast. An Election Petition as already stated is to question the “undue election” or “undue return” of the candidate declared by INEC as the winner of a given election conducted pursuant to the provisions of the Electoral Act. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
IMPROPER JOINDER OF PARTIES TO AN ELECTION PETITION : WHETHER THE PARAGRAPHS OF AN ELECTION PETITION THAT THE NAME OF A PARTY THAT WAS IMPROPERLY JOINED TO A SUIT, BUT HAS BEEN STRUCK OUT, WAS MENTIONED MUST BE STRUCK OUT
The position of the law as stated in YUSUF V. OBASANJO (supra) is that when a party is improperly joined to a suit and is struck out, any allegation made against him becomes irrelevant and incompetent. It is therefore my considered view, that there was actually no need for the Tribunal to have struck out paragraphs of the Petition simply because the 3rd Respondent was mentioned therein, when the said paragraphs did not exclusively pertain to the 3rd Respondent. All that the Tribunal and indeed the remaining or surviving parties in the Petition need to do, at the trial of the Petition, is to ensure that no evidence is led to establish any fact pleaded in the Petition as it relates to the 3rd Respondent (who I have found to have been rightly struck out as a party in the Petition). Accordingly, all the paragraphs of the Petition struck out on the ground that the 3rd Respondent was mentioned therein, are restored in the Petition. See the decision in APPEAL NO. CA/E/EPT/13/2011 – HON. CHINEDU GODSWILL ELUEMUNOH & ANOR. V. CHIZOR LAMBERT OBIDIGWE & ORS (supra). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
2. HON. CHUKWUMA EZE NZERIBE Appellant(s)
AND
1. ANDY EMMANUEL UBA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PRINCE NICHOLAS UKACHUKWU
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision delivered on 4/8/2011 by the National and State Houses of Assembly Election Tribunal, Awka, Anambra State, (hereafter simply referred to as “the Tribunal”) striking out some paragraphs of Petition No. EPT/AN/NAE/SE/10/2011.
The Appellants were the Petitioners in Petition No. EPT/AN/NAE/SE/10/2011 (hereafter simply referred to as “the Petition”). The Appellants on 30/4/2011 instituted the Petition which relates to the National Assembly election held on 9/4/2011 for Anambra South Senatorial “Zone”, Anambra State. The 2nd Appellant contested the election on the platform of the 1st Appellant. The Appellants are challenging the declaration and return of the 1st Respondent as the winner of the election. The Appellants averred that the 1st Respondent “purportedly” contested the questioned election on the platform of the Peoples Democratic Party (hereafter simply referred to as “PDP”) and which party is the 4th Respondent in the Petition. The reliefs which the Appellants prayed of the Tribunal, as set out in the Petition are reproduced hereunder:-
“Wherefore your Petitioners pray as follows:
(i) That neither the 1st Respondent nor the 3rd Respondent was duly elected by the majority of lawful votes cast in the Senatorial election held on 9th April, 2011 for Anambra South Senatorial District, and that the return of the 1st Respondent is void.
(ii) That the Petitioners scored the highest number of votes cast in the Senatorial election held on 9th April, 2011 for Anambra South Senatorial District and satisfied all the requirements of the applicable laws.
(iii) That the 2nd Petitioner be declared as having been validly elected or returned.
The Petitioners pray alternatively and ONLY in the alternative as follows:
(a) That it be determined that the 1st and 3rd Respondents were at the time of the election, not qualified to contest the election as both were, contrary to the provisions of the enabling laws, unlawfully sponsored by one political party, to wit, the 4th respondent.
(b) That it be determined that the 4th Respondent (sic) participation in the National Assembly election of 9/4/2011 in Anambra South Senatorial Zone is null, void and of no effect, in that (contrary to the provisions and spirit/intendment of the enabling laws) it sponsored two candidates in the aforesaid election.
(c) That it be determined that the act of the 2nd Respondent in allowing/authorizing the 4th Respondent to participate and/or sponsor two candidates (to wit 1st & 3rd Respondents) in the said election constitutes gross irregularities that substantially affected the conduct and outcome of the election.
(d) An order setting aside the participation of the 1st, 3rd and 4th Respondents in the aforesaid election as well as the return of the 4tn Respondent as the purported winner of the election.
(e) An order that fresh election be conducted in Anambra South Senatorial Zone for all the other candidates that validly participated in the aforesaid election of 9/4/2011.
The Petitioners further pray in the alternative that:
1. It be determined that the election irregularities that occurred at Akpo ward, Isuofia ward, Igboukwu ward 1, Uga 2, Umuchu 1 & 2, Achina 2, Amesi and Ezinifite 2 in Aguata L.G.A, Umuomaku in Orumba South L.G.A, Ogbolo ward, Amamu II, and Ihite ward in Ihiala L.G.A. which led to the cancellation of results in those areas, substantially affected the outcome of the questioned election.
2. An order that fresh election be conducted in the entire Senatorial Zone.”
On 11/7/2011 the 1st Respondent filed a motion on notice dated 26/6/2011 in the Petition praying the Tribunal for the following:-
“(a) An order striking out this petition No. EPT/AN/NAE/SE/10/2001 between ALL PROGRESSIVE GRAND ALLIANCE & ANOR AND ANDY EMMANUEL UBA & ORS dated Saturday the 30th day of April 2011 and filed on the same date on the ground of incompetency.”
The grounds of the application as set out in the motion on notice are:-
“(i) Some paragraphs of the petition raised intra-party matters over which the Honourable Tribunal has no jurisdiction to entertain.
(ii) The Petitioners lack the requisite locus standi to raise questions on the validity or otherwise of the 1st Respondent’s nomination.
(iii) The Petitioner (sic) ground one in the petition is not a ground permitted under the Electoral Act 2010 as amended under which an election petition can be founded.
(iv) The Petitioners who are of different political leaning cannot lawfully raise questions on the validity of the nomination of the 1st Respondent.
(v) It is not permissible under Section 285(1)of the 1999 Constitution to seek relief against a person not returned or declared as the winner of the election and as such no competent reliefs can be sought against the 2nd, 3rd and 4th Respondents in an election petition.
(vi) The non-joinder of the electoral officers as required by law divests the tribunal of necessary jurisdiction to entertain the petition.”
The Tribunal delivered its ruling in respect of the motion mentioned above on 4/8/2011. In the ruling, the Tribunal struck out all the paragraphs of the Petition wherein reference was made to the 3rd Respondent, namely, Paragraphs 4, 5, 9(a), (b), 10A, 10A(1),(2),(3),(4), (5), (6), 10B(i), (ii), (iii), (iv), (v), (vi), 10D(i),(ii), 10F(i); Prayer No. (i), Alternative Prayer (a), (c), (d). The Tribunal also struck out all paragraphs of the Petition wherein allegations which bordered on criminality were made against INEC officials and individuals who were not joined as parties. The Paragraphs in question as set out at page 649 of the record of appeal are:-
“Paragraphs 10A(iii), 10B(i), (vii), (xi);
Paragraph 10(C)(ii), (iii), (iv);
Paragraph 10D(i), (ii), (iii);
Paragraph 11A(i);
Paragraph 11B(i), (ii);
Paragraph 11D(i), (ii);
Paragraph 11E(ii), (iv);
Paragraph 11F(i), (ii);
Alternative prayer (b) is also struck out for being pre-election matter and particulars under 10(v), for the same reason.”
The Petitioners (now Appellants) being dissatisfied with the striking out of paragraphs of the Petition lodged an appeal against the Ruling of the Tribunal in that regard. The Notice of Appeal filed by the Appellants is dated 11/8/2011 and filed on 12/8/2011. The Notice of Appeal contains four grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –
GROUNDS OF APPEAL
1. The Tribunal misdirected itself and consequently arrived at a wrong decision which has occasioned a miscarriage of justice when it held that –
“The 3rd Respondent from the Petition paragraph 6 where the Petitioner listed the candidates and other parties did not include the name of the 3rd Respondent against any political party. The 3rd Respondent therefore did not contest the election and by joining him as a 3rd Respondent a (sic) amount to a misjoinder. The 3rd Respondents (sic) name is hereby struck out for being in breach of section 137(2) of the Electoral Act as amended.”
2. The Tribunal erred in law in striking out paragraphs 4, 5, 9(a), (b), 10A, 10A(1), (2),(3), (4), (5), (6), paragraph 10(B)(i), (ii), (iii), (iv), (v), (vi), (vii), paragraph 10D(i), (ii), paragraph 10E(i), prayer No.(i) and alternative prayer (a), (c), (d) of the Petition.
3. The Tribunal misdirected itself and consequently arrived at a wrong decision which has occasioned a miscarriage of justice when it held that –
“On the issue of criminal allegations contained in the petition, by the provision of section 36 of the Constitution, a party shall be given fair hearing in the determination of his civil obligations. Sections 23, 24, 117 – 132 of the Electoral Act, 2010 has (sic) set out criminal offences.
All the allegations which border on criminality against INEC officials and individuals, we hold that these officials and individuals should be joined to the petition, so as to satisfy section 36 of the constitution, which is superior to section 137(3) of the Electoral Act, 2010. We accordingly strike out these:-
Paragraphs 10A(iii), 10B(i), (vii), (xi);
Paragraph 10(C)(ii), (iii), (iv);
Paragraph 10D(i), (ii), (iii);
Paragraph 11A(i);
Paragraph 11B(i), (ii);
Paragraph 11D(i), (ii);
Paragraph 11E(ii), (iv);
Paragraph 11F(i), (ii);
Alternative prayer (b) is also struck out for being pre-election matter and particulars under 10(v), for the same reason.”
4. The Tribunal erred in law when it held that –
“Alternative prayer (b) is also struck out for being pre-election matter and particulars under 10(v) for the same reason.”
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 24/8/2011 and filed on 26/8/2011. Appellants filed Reply Briefs to the respective Briefs of Argument of the 1st and 2nd Respondents. The two Reply Briefs are dated 7/9/2011 and filed on 9/9/2011. All the Briefs filed in the appeal by the Appellants were settled by O.A. Obianwu, Esq. SAN; A.C. Anaenugwu, Esq.; H.C. Onwuegbuke, Esq.; G.B. Obi, Esq.; T.U. Oguji, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq. The Brief of Argument of the 1st Respondent dated 1/9/2011 and filed on 2/9/2011 was settled by Prof. Ilochi Okafor, SAN; Arthur Obi Okafor, SAN; B.O. Okpemandu, Esq.; F.I. Aniukwu, Esq.; J.O. Nwankiti, Esq. and C.I. Aiguobarueghian, Esq. That of the 2nd Respondent dated 1/9/2011 and filed on 2/9/2011 was settled by O.J. Nnadi, Esq., SAN; and S.O. Ibrahim, Esq. The Brief of Argument of the 3rd Respondent dated 2/9/2011 and filed on the same date was settled by Chief G. Tagbo Ike; while that of the 4th Respondent dated 29/8/2011 and filed on the same date was settled by Clems Ezika, Esq.; Ernest Nwoye, Esq.; Nicholas Asuzu, Esq.; Victor Nwachukwu, Esq.; Onwuemena Mmaduka, Esq; and Kingsley Onunkwo, Esq. At the hearing of the appeal on 21/9/2011, parties through their respective counsel duly adopted and relied on their Briefs of Argument as hereinbefore identified as their arguments in respect of their positions in the appeal.
The three issues formulated for determination in the appeal, in the Appellants’ Brief of Argument read thus: –
“(i) Whether the Tribunal was right in striking out the name of the 3rd Respondent and all the paragraphs of the petition pertaining to him on the ground that he did not take part in the election GROUNDS 1 AND 2.
(ii) Whether the Tribunal was correct to have struck out the paragraphs of the petition pertaining to officials of the 2nd Respondent and individuals on the ground of their non-joinder – GROUND 3.
(iii) Whether the tribunal was right to have struck out alternative prayer (b) and particulars under paragraph 10(v) of the petition pertaining to pre-election matters – GROUND 4′
The issues for determination in the appeal as formulated in the Brief of Argument of the 1st Respondent read thus: –
“1. Whether the Tribunal was right in striking out the name of the 3rd Respondent and all paragraphs of the Petition pertaining to him.
2. Whether the Tribunal was right to have struck out Alternative Prayer B and Paragraph 10(v) of the Petition.
3. Whether the Tribunal was right in striking out the offending Paragraphs of the petition where allegations of crime were made against INEC Officials who were not made parties to the Petition?”
The issues formulated for the determination of the appeal in the Brief of Argument of the 2nd Respondent read:-
“(i) Whether the Tribunal was right in striking out the name of the 3rd Respondent and all the paragraphs of the petition pertaining to the 3rd Respondent who was not declared the winner of the questioned election by the 2nd Respondent? (Grounds 1 and 2 of the Notice of Appeal).
(ii) Whether the Tribunal in view of the non-joinder of officials of the 2nd Respondent, Police, SSS Soldiers and persons mentioned in the petition, and the criminal allegation leveled against them, was right in striking out the paragraphs of the petition on ground of breach or likelihood of breach of the right to fair hearing of these officials and individuals by their non-joinder? (Ground 3 of the NOTICE OF APPEAL).
(iii) Since Election petition Tribunal has no jurisdiction to entertain pre-election dispute, was the Tribunal right to have struck out alternative prayer (b) and the particulars under paragraph 10(v) of the petition pertaining to pre-election matters? (Grounds 4 (sic) of the NOTICE OF APPEAL).”
In his Brief of Argument the 3rd Respondent adopted the three issues formulated by the Appellants, as arising for determination in the appeal. This Respondent further stated in his Brief of Argument that he was arguing only issue 1 and that he was associating himself with all the argument of the Appellants in respect of issues 2 and 3. The 3rd Respondent concluded his Brief of Argument by urging the Court to allow the appeal, set aside decision of the Tribunal and remit the Petition for trial before another Tribunal.
The 4th Respondent formulated two issues for the determination of the appeal in its Brief of Argument, They read thus:-
“2.01. Whether the Tribunal was right in striking out the name of the 3rd Respondent and all the paragraphs of the petition relating to him on the ground that he did not participate in the election.
2.02. Whether the Tribunal was right to have struck out the alternative prayer of the Petitioner (sic) under paragraph (b) and particulars under paragraph 10(v) of the petition relating to pre-election matters.”
Like the 3rd Respondent, the 4th Respondent in concluding its Brief of Argument prayed this Court “to do substantial justice to this Appeal and moreover to dismiss same accordingly.”
The appeal will be determined upon the issues formulated by the Appellants. This is because the issues as set out in the Briefs of Argument of 1st and 2nd Respondents are clearly very similar to those formulated by the Appellants.
APPELLANTS’ ISSUE 1
The Appellants submitted that the Tribunal was wrong in striking out the name of the 3rd Respondent and all the paragraphs pertaining to him, from the Petition on the ground that the said 3rd Respondent did not take part in the election. It is the submission of the Appellants that whether or not the 3rd Respondent participated in the questioned election, is a question of fact that can only be resolved after evidence had been adduced. This is particularly so, as an election is a process. Four cases were cited in aid. One of them is PPA v. Saraki (2007) 17 NWLR (Pt. 1064) 453 at 519-520.
The Appellants referred to paragraphs of the Petition wherein they claimed to have shown the fact of the participation of the 3rd Respondent in the questioned election. It is the submission of the Appellants that for the purposes of the objection which the Tribunal entertained, the Tribunal was enjoined to treat the pleaded facts in the Petition as true. Two cases were cited in aid, and one of them is Disu v. Ajilowura (2006) 14 NWLR (Pt. 1000) 783. The Appellants submitted to the effect that it was wrong of the Tribunal not to have given a communal construction to the averments in the Petition. The Appellants made reference to the Reply of the 3rd Respondent and said that as at the time the Tribunal was holding “that the 3rd Respondent did not participate in the election”, the said Tribunal had before it the 3rd Respondent’s pleading, documents and depositions, asserting positively that he participated in the election. That in spite of these, the Tribunal was able to arrive at its conclusion as to the non-participation of the 3rd Respondent in the questioned election without hearing from anybody.
The Appellants accused the Tribunal of “raking” up the issue of the non-participation of the 3rd Respondent in the questioned election in order to truncate the Petition. This is because the application of the 1st Respondent did not positively raise the issue. The Appellants stressed that paragraphs “10A(1), (2),(3), (4) and (6) referred to by the Tribunal do not exist in the Petition while paragraphs 9(b), 10D(i) and (ii) made no reference to the 3rd Respondent, yet, the tribunal struck them out. The Appellants submitted to the effect that the decision and consequent striking out of paragraphs; prayer; and alternative prayer; in the Petition by the Tribunal on account of the misjoinder of the 3rd Respondent are perverse and have occasioned them a grave miscarriage of justice.
Dwelling on this issue, the 1st Respondent submitted to the effect that the Tribunal was right in striking out the name of the 3rd Respondent and all the paragraphs of the Petition pertaining to him, on the ground that he did not take part in the election. It is the submission of the 1st Respondent that the striking out of the name of the 3rd Respondent was a natural consequence which evolved from the consideration of whether reliefs could be sought against a person who was neither elected nor returned as the winner of the questioned election. It is further submitted by the 1st Respondent that where a court does not have the jurisdiction to entertain or grant reliefs sought against a party, it means that the said party ought not to have been joined as a party ab initio in the proceedings. This is because the reason for the joinder of a person to a proceeding, is so that the person so joined will be bound by the result of the proceeding.
Also referring to Sections 133(1) and 137 (2) of the Electoral Act 2010 as amended (and which Act will hereafter be simply referred to as “the Electoral Act”) the 1st Respondent submitted to the effect that it was clear that the 3rd Respondent was mis-joined in the Petition particularly in the light of the averments in paragraphs 6, 8 and 9(c) thereof. It is the submission of the 1st Respondent that the averments in the said paragraphs showed clearly that it was his (1st Respondent’s) return that is being questioned in the Petition. The 1st Respondent made the point to the effect that the objection to the reliefs sought against the 3rd Respondent (whose election was not being challenged) is predicated on the stance that it was only his (i.e. 1st Respondent’s) election that was being questioned in the Petition. That it was in the course of determining this issue that the Tribunal held that the 3rd Respondent ought not to have been joined in the Petition in the first place. That the impression (to the effect that the Tribunal unilaterally struck out the name of the 3rd Respondent and paragraphs of the Petition pertaining to him), being created by the Appellants was incorrect. The 1st Respondent also submitted to the effect that whether or not the 3rd Respondent or any other party in the Petition is a necessary party is a matter determinable upon the pleadings; and does not require evidence to be adduced. That the issue relating to the 3rd Respondent was not only properly raised and adjudicated upon by the Tribunal, on the basis of his (i.e. 1st Respondent’s) preliminary objection, but also that the pleadings of the 3rd Respondent was irrelevant for the resolution of the issue, Cases considered relevant were cited in aid of the various submissions of the 1st Respondent. The 1st Respondent urged the Court to hold that the Tribunal was right when it struck out the name of the 3rd Respondent and all the paragraphs of the Petition pertaining to him.
The 2nd Respondent in its Brief of Argument equally submitted to the effect that the Tribunal was right in striking out the name of the 3rd Respondent and all paragraphs pertaining to him, from the Petition. Having referred to Sections 133(1) and 137 (2) of the Electoral Act, the 2nd Respondent submitted to the effect that the only person the Appellants are entitled to sue is the person elected or returned in the questioned election and not a person claiming to be a candidate or a person who lost in the election as seen from the averments in paragraphs 4, 5, 9(a), (b), 10A(1) – (6), 10B(i), (ii), (iv),(v),(vi),(vii), 10D(i), (ii), 10F(i), prayer No. 1, alternative prayer A, C, D, of the Petition vis-a-vis paragraph 6 thereof. Other submissions made by the 2nd Respondent on the issue are to all intents and purposes, similar to those advanced by the 1st Respondent. The 2nd Respondent also cited a host of cases considered relevant to its various submissions.
The Appellants filed Reply Briefs to the Briefs of Argument of the 1st and 2nd Respondents respectively. The Reply Briefs will be referred to where considered appropriate.
I must state at this stage that at the hearing of the appeal, learned senior counsel for the 1st Respondent, Arthur Obi-Okafor SAN; made the observation that the Briefs of Arguments the 3rd and 4th Respondents respectively, are in support of the appeal and urged the Court to discountenance the said Briefs of Argument. This is against the backdrop of the position of the law that the traditional role of a respondent is to defend the judgment appealed against.
Having perused the Brief of Argument of the 3rd Respondent, I am in no doubt that he has taken the position of an appellant in this appeal, as he has not only glaringly argued to the effect that Appellants’ issue 1 should be resolved in their favour, but also expressly adopted all the arguments of the Appellants in relation to Appellants’ issues 2 and 3. Although the 4th Respondent going by the concluding part of its Brief of Argument would appear to have argued against allowing the appeal, when it urged the Court “to do substantial justice to this Appeal and moreover to dismiss the same accordingly”, a perusal of the whole of the Brief, glaringly shows that the arguments proffered therein are actually in support of the appeal being allowed.
I am aware of the provision of Order 18 Rule 4(2) of the Rules of this Court which provides that:
“The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4) and (5) of this Order”.
and cannot but state that I do not understand the said provision to have reversed the settled position of case law as it relates to a respondent who has not appealed against a judgment. Such a respondent, if he decides to participate in the appeal, is to support the judgment appealed against. In the circumstances, I will not dwell further on the Briefs of Argument of the 3rd and 4th Respondents respectively, in this judgment.
It is settled law that election petitions are sui generis and should be treated in that domain or realm. See ABUBAKAR V. YAR’ADUA (2008) All FWLR (Pt.404) 1409 at 1450. This being the nature of election petitions, the courts have consistently held to the effect that election petitions are different from normal civil cases. They are conducted under the peculiar provisions of the relevant electoral law and not necessarily related to the ordinary civil rights and obligations of the parties concerned. An election petition is a proceeding that is of its own kind possessing an individualistic character, unique or like, only to itself. In other words, the proceedings have no affinity with any action known to common law. See BAMIGBOYE V. SARAKI (2009) All FWLR (Pt. 484) 1573 at 1595.
The Electoral Act in Section 133(1) not only provides for the means or process of challenging or questioning an election and return made in any election conducted pursuant to the provisions of the Act, but also the complaints that are permissible in challenging or questioning such election. An election conducted under the Act can only by questioned by “an election petition” and the complaints permissible therein, are those of “undue election” or “undue return”. The Section in question specifically provides that the person elected or returned should be joined as a respondent in the petition. It is my considered view that the provision of Section 133(1) of the Electoral Act (supra), cannot be construed as stipulating that only the person elected or returned in an election conducted pursuant to the provisions of the Electoral Act, is to be the only respondent in an election petition. In other words, it cannot be argued that an election petition is to have only the person elected or returned as the sole respondent by virtue of the provision of Section 133(1) (supra). This is because the operative words in the provision of Section 133(1) in this regard are “joined as a respondent” and not “joined as the respondent”.
Section 137 of the Act while stipulating that the person whose election is complained of shall be referred to as “the respondent” goes further to provide for the joinder in the Petition of other INEC officials against who the petitioner complains of their conduct in the election as respondents. The provisions of Section 137 of the Electoral Act are however clear that once INEC is joined as a respondent in a Petition, there is no need to join any of its officials the petitioner complains of their conduct in the election as INEC having been made a respondent therein, shall be deemed to be defending the Petition on its own behalf and on behalf of its officers, to matter the nature of the complaints against such officials. It is my view that given the provisions of Sections 133(1) and 137 of the Electoral Act, the one person that must be made a party to a Petition apart from INEC, is “the person whose election or return is being questioned or challenged”.
The question can then be asked, what is it that qualifies the 3rd Respondent to be joined as a respondent in the instant Petition? I have read the whole of the Petition, and I see no averment therein, that expressly states, or remotely suggests that the 3rd Respondent was elected or returned as the winner of the election been questioned. The Appellants have stated that election is a process and that this being the case, the issue as to whether or not the 3rd Respondent participated in the election can only be resolved after taking evidence. Apparently to buttress the stance, the Appellants also referred to the fact that the 3rd Respondent had pleadings and processes before the Tribunal in which the said 3rd Respondent positively asserted that he participated in the election.
I believe the law is settled to the effect that in considering an application such as that of the 1st Respondent that the Tribunal ruled on, the Tribunal or this Court cannot legally look at any other process except the Petition for the purposes of resolving the issues raised in, or by, the application. Indeed, the Appellants themselves stated this much in their Brief of Argument. It is therefore a mystery that they later placed reliance on the Reply filed in the Petition by the 3rd Respondent to advance their case.
True as it is, that election is a process, it is however indisputable that the process, necessarily consists of several distinct parts or segments and ends with the declaration or return by INEC of the candidate that won the election at the polls. Contest at the polls by the candidates in an election, on the appointed date of the election is also called “election”. It is from this stage of the election process that the 2nd Respondent determines the winner of the election amongst the candidates that contested at the polls having regard to the votes cast. An Election Petition as already stated is to question the “undue election” or “undue return” of the candidate declared by INEC as the winner of a given election conducted pursuant to the provisions of the Electoral Act. I am in no doubt that by the showing of the Appellants themselves, in paragraph 6 of the Petition, the 3rd Respondent was clearly not a candidate in the election at the polls and he was never declared as the winner of the election. The 3rd Respondent having been shown not to have been declared as the winner of the election in the Petition and particularly by the averment in paragraph 6 of thereof, there was in the circumstances, no legal basis upon which his election or return can be challenged by the petition. I am aware of the Supreme Court case of YUSUF V. OBASANJO (2004) All FWLR (Pt. 213) 1884 at 1943 where amongst others, it was held to the effect that an unsuccessful candidate in an election can be made a respondent to an election petition with his consent or if he does not object to being so made. I must however say that this case which was decided under the provisions of the 2002 Electoral Act; cannot avail the Appellants. This is because it is clear as crystal from the averment in paragraph 6 of the Petition, that the 3rd Respondent was never one of the candidates that contested the questioned election talk less of his being unsuccessful thereat.
The Appellants submitted to the effect that the issue of the non-participation of the 3rd Respondent was raked up by the Tribunal to truncate the Petition because the motion of the 1st Respondent did not positively raise the issue. In their replies to the respective Briefs of Arguments of the 1st and 2nd Respondents, the Appellants also submitted to the effect that arguments predicated on Sections 133 and 137 are new issue, as the Tribunal gave no reason at all in arriving at the decision concerning the 3rd Respondent.
I must say that in my considered view, the issue concerning the non-participation of the 3rd Respondent in the questioned election, conveniently comes in under the fifth of the grounds of the application as set out in the 1st Respondent’s motion in respect of which the Tribunal delivered the ruling appealed against. I must also note that it is not the complaint of the Appellants that the issue of the improper joinder of the 3rd Respondent was not argued in the written addresses of the parties. Indeed the submission of the Appellants that the issue of the non-participation of the 3rd Respondent in the questioned election was not positively raised (and not that it was not raised at all), tantamount to a concession that the issue was tacitly or obliquely raised. In any case, it is my considered view that the consideration of the question of the participation or non-participation of the 3rd Respondent in the questioned election is subsumed in the issues formulated by the 1st Respondent at pages 642 – 643 and the Appellants at page 644 of the record, Furthermore, I cannot but say that in my considered view, the Appellants have clearly overlooked ground 1 of their grounds of appeal in making the submission that the Tribunal gave no reason for holding that the 3rd Respondent did not participate in the election. In any event an appellate court looks into the correctness of the decision of the lower court and not the reason(s) therefore, it is therefore of no moment that in striking out the name and all the paragraphs of the Petition relating to the 3rd Respondent, the Tribunal did not set out its reasons. lt would however appear to me, that the Tribunal based it reasons for the decision to strike out the name of the 3rd Respondent and all the paragraphs of the Petition pertaining to him, on the facts as reviewed by it, immediately before it held that there was a misjoinder of the said 3rd Respondent.
As earlier stated the concern of this Court is to see whether or not the decision of the Tribunal in striking out the name of the 3rd Respondent and all the paragraphs of the Petition pertaining to him is right; and in the light of all that I have said before now in relation to who can be a respondent in the Petition, I am in no doubt that the Tribunal was very correct that the 3rd Respondent did not participate in the election and that he ought not to have been joined therein. Therefore the Tribunal in my considered view was eminently right in striking out the name of the 3rd Respondent as a party in the Petition. See the decision (unreported) of this very Court delivered on 16/9/2011, in APPEAL NO. CA/E/EPT/13/2011 – HON. CHINEDU GODSWILL ELUEMUNOH & ANOR, V. CHIZOR LAMBERT OBIDIGWE & ORS.
As for the striking out of all the paragraphs of the Petition pertaining to the 3rd Respondent, I do not think the Tribunal was right in doing this. In the ruling appealed against, the Tribunal revealed that it was striking out all the paragraphs of the Petition wherein the 3rd Respondent was mentioned and not paragraphs of the Petition that pertained exclusively to the 3rd Respondent. (Underlining mine). By doing this, the Tribunal invariably ended up striking out paragraphs of the Petition in which the 3rd Respondent was mentioned in conjunction with some other party or parties who the Tribunal never found to have been improperly joined in the Petition. Striking out paragraphs of the Petition simply because the 3rd Respondent was mentioned therein, and not because the paragraphs in question exclusively pertained to the 3rd Respondent, therefore amounts to the striking out of the averments in the affected paragraphs as they equally relate to other party or parties who the Tribunal never found to have been improperly joined. The position of the law as stated in YUSUF V. OBASANJO (supra) is that when a party is improperly joined to a suit and is struck out, any allegation made against him becomes irrelevant and incompetent. It is therefore my considered view, that there was actually no need for the Tribunal to have struck out paragraphs of the Petition simply because the 3rd Respondent was mentioned therein, when the said paragraphs did not exclusively pertain to the 3rd Respondent. All that the Tribunal and indeed the remaining or surviving parties in the Petition need to do, at the trial of the Petition, is to ensure that no evidence is led to establish any fact pleaded in the Petition as it relates to the 3rd Respondent (who I have found to have been rightly struck out as a party in the Petition). Accordingly, all the paragraphs of the Petition struck out on the ground that the 3rd Respondent was mentioned therein, are restored in the Petition. See the decision in APPEAL NO. CA/E/EPT/13/2011 – HON. CHINEDU GODSWILL ELUEMUNOH & ANOR. V. CHIZOR LAMBERT OBIDIGWE & ORS (supra).
In conclusion, Appellants’ issue 1 is resolved their favour, save that the striking out of the name of the 3rd Respondent from the Petition is affirmed.
APPELLANTS’ ISSUE 2
Dwelling on the issue, the Appellants contended that the Tribunal was wrong to have struck out the paragraphs of the Petition pertaining to officials of the 2nd Respondent and “individuals” on the ground of their non-joinder, as allegations of crime were made against all of them in the affected paragraphs. It is the submission of the Appellants that the stance of the Tribunal in respect of the paragraphs it struck out is unfounded. This is particularly so, as the Tribunal did not state the nature of criminal allegations it found in the paragraphs of the Petition struck out. Likewise, the Tribunal was accused of not indicating the paragraphs of the Petition that were referable to officials of the 2nd Respondent (i.e. Presiding Officers, Returning Officers and Electoral Officers) as well as the paragraphs that contained criminal allegations against the “individuals” it referred to. That instead of doing this, the Tribunal chose to lump all the persons it referred to, together and this the Appellant submitted is most untidy and ought to be deprecated. The case of Eruotar v. Ughmiakpor (1999) 1 NWLR (Pt. 619) 460 at 465 was cited in aid. The Appellants said that the ruling appealed against was in respect of the application made by the 1st Respondent and that the question of non-joinder raised in it, was only in relation to the officials of the 2nd Respondent. They then asked the question as to how “individuals” crept into the ruling. It is the submission of the Appellants that the introduction of the term “individuals” into the ruling has occasioned them a miscarriage of justice. The case of AMORC v. Awoniyi (1994) 7 NWLR (Pt.355) at 154 was cited in aid, amongst others.
Dwelling on the non-joinder of officials of the 2nd Respondent, the Appellants submitted that the Tribunal was wrong in its stance in this regard. Referring to the provisions of Section 137(3) of the Electoral Act and Paragraph 51(1)(a) and (b) of the 1st Schedule to the said Act, and the exposition of the provisions by Salami, PCA, OFR; in the ruling (unreported) delivered on 14th July, 2011, in Appeal No. CA/A/EPT/PRES/1 12011 – Congress For Progressive Change v. INEC & 42 Ors.; the Appellants submitted that the Tribunal was wrong on its stance concerning non-joinder of the officials of the 2nd Respondents. The Appellants further submitted that reference by the Tribunal to a breach of the right to fair hearing of the officers who were not joined cannot be sustained because the officers as a matter of law cannot be joined as parties to an election petition because they had ceased to be statutory respondents who must be joined under the Electoral Act. The case of Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 was cited in aid, amongst others.
Suffice it to say that the 1st and 2nd Respondents in their respective Briefs of Argument argued elaborately in support of the decision of the Tribunal striking out all the paragraphs of the Petition pertaining to officials of the 2nd Respondent who were not joined as parties; as well as the paragraphs relating or pertaining to “individuals”, in as much as these persons were not made parties to enable them answer to the allegations made against them. The 2nd Respondents in arguing this issue in its Brief of Argument would appear to have disclosed that those referred to by the Tribunal as “individuals” are the Police, S.S.S. and Soldiers. Many decisions based on previous Electoral laws were cited by the 1st and 2nd Respondents in their respective Briefs of Argument in aid of their various submissions.
In their Replies to the Briefs of Argument of the 1st and 2nd Respondents respectively, the Appellants made the point that there was no response to the argument in paragraphs 4.10 – 4.14 of their Brief of Argument wherein they queried the propriety of the Tribunal introducing suo motu a new head of complaint not contained in motion on notice of the 1st Respondent into the ruling appealed against. The new head of complaint as disclosed by the Appellants is the entry of “individuals” into the ruling appealed against.
The aspect of Appellants’ issue 2 which questions the correctness of the decision of the Tribunal striking out paragraphs of the Petition pertaining to officials of the 2nd Respondent in my considered view does not require any elaborate consideration. This is in view of the decision (unreported) delivered on 19/8/2011, by this very Division of this Court in APPEAL NO. CA/E/EPT/02/2011 – DR. OKECHUKWU UDEH & ANOR. V. BEN NWANKWO & ORS. and which decision the Appellants have cited in their Reply Brief in aid of their submission to the effect that the Tribunal was wrong in striking out paragraphs of the Petition for non-joinder of officials of the 2nd Respondent (which is a party in the Petition) for any reason. The decision of this Court under reference, has clearly settled the issue at stake. This Court decided to the effect amongst others, that pursuant to the provisions of Section 137 of the Electoral Act and those of Paragraph 51(1) of the 1st Schedule to the said Act, the joinder of INEC officials in a Petition, to matter the nature of complaint made against them, is unnecessary once INEC is a party in the Petition as INEC is deemed to be defending the Petition for itself and on behalf of its officials against whom allegations have been made. It was also made clear in the decision that the issue of fair hearing as it pertains to INEC officials against whom allegations are made in the Petition but not joined as parties, does not arise for consideration at the stage when objection is taken to the competence of the Petition. The Court further opined that “the vexed issue of fair hearing is a deep river waiting to be crossed when allegations of criminal conduct are made out against INEC Officers who are not Respondents in a Petition.”
This Court is bound by its earlier decisions, and indeed, the decision delivered on 19/8/2011 (supra) has been applied by this Court in a number of election appeals, too many to set out in this judgment. I therefore hold that the Tribunal was very wrong to have struck out any of the paragraphs of the Appellants’ Petition on the ground of non-joinder therein, of the officials of the 2nd Respondent against whom criminal allegations were made, in line with the decision of this Court in APPEAL NO. CA/E/EPT/02/2011 – DR. OKECHUKWU UDEH & ANOR V. BEN NWANKWO & ORS. (supra).This Also the aspect of Appellants’ issue 2 is accordingly resolved in their favour.
Also the aspect of Appellants’ issue 2 in relation to “individuals” must equally be resolved in their favour as the pronouncement of the Tribunal as it relates to “individuals” (which is clearly an expression making no specific reference to anybody in the Petition) clearly has no basis or foundation in the motion of the 1st Respondent. The Tribunal clearly has no vis to suo motu introduce a matter into the motion of the 1st Respondent, and make any pronouncement in relation thereto without affording the parties the benefit of being heard on the matter introduced suo motu. The law is settled to the effect, that if a court sees the need of considering a point not canvassed by the parties, it is bound to call on them to address it on the issue before taking or reaching a decision on the said issue. When the issue or point raised and resolved suo motu by a court without affording the parties a hearing, deals with issues of fact, the court invariably commits a breach of fair hearing on the issue as it relates to the parties, particularly in respect of the party likely to be adversely affected by the issue. Though a decision reached by a court in respect of an issue or point of law, raised and resolved by it suo motu, does not necessarily have to lead to a reversal of the decision of that court on appeal, such a decision must however be reversed where an appellant shows that failure to hear him on the point or issue of law, has occasioned some miscarriage of justice. See EFFIOM V. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION (CROSIEC) (2010) All FWLR (Pt. 552) 1610; and ALLI V. AYINDE [2010] All FWLR (Pt. 540) 1315. The Tribunal apparently on its own raised suo motu the issue concerning the effect of the non-joinder “individuals” as Respondents in the Petition, and resolved the same suo motu by striking out the paragraphs of the Petition pertaining to officials of the 2nd Respondent and “individuals” on the ground of their non-joinder. It is in my view glaring that the Tribunal having decided to strike out paragraphs of the Petition on the ground of the non-joinder of the officials of the 2nd Respondents and “individuals” without affording the Appellants a hearing on the issue, has thereby and undoubtedly too, occasioned the Appellants some miscarriage of justice. Accordingly, the second aspect of Appellants’ Issue 2 is resolved in their favour.
The two aspects of Appellants’ Issue 2, having been resolved in their favour, it follows that all paragraphs of the Petition pertaining to officials of the 2nd Respondent and “individuals” that were struck out by the Tribunal are restored.
APPELLANTS’ ISSUE 3
The Appellants submitted in the main that the Tribunal was wrong in striking out their “Alternative prayer (b) and particulars under paragraph 10(v) of the Petition for being in respect of pre-election matters. Other submissions made under this issue by the Appellants are a rehash of those they made under their issue 1. Again the Appellants accused the Tribunal of introducing and utilizing the ground of pre-election matter, it relied upon in striking out the alternative prayer and paragraph of the Petition, to their detriment.
Dwelling on the issue under consideration, the 1st and 2nd Respondents respectively, submitted in the main that the Tribunal was right in striking out paragraph 10(v) of the Petition as the averment glaringly raises pre-election issue. In respect of “Alternative Prayer(b), the 1st and 2nd Respondents submitted in the main that the Tribunal was right in striking the same out, as the prayer raises the question as to whether the Tribunal has the jurisdiction to grant the same in view of the provision of Section 285(1) of the 1999 Constitution. Indeed the 2nd Respondent submitted that the striking out of “Alternative Prayer (b)” is a consequential order flowing from the decision of the Tribunal striking out offensive paragraphs of the Petition and the joinder of the 3rd Respondent which is caught by Sections 133(1) and 137(2) of the Electoral Act and for being pre-election matters.
Alternative Prayer (b) and the averment in paragraph 10(v) of the Petition that the Tribunal struck out for being pre-election matters read:-
“Prayer (b) That it be determined that the 4th Respondent (sic) participation in the National Assembly election of 9/4/2011 in Anambra South Senatorial Zone is null, void and of no effect, in that (contrary to the provisions and spirit/intendment of the enabling laws) it sponsored two candidates in the aforesaid election.
Paragraph 10(v) “Your Petitioners aver that the 1st Respondent lacks legitimacy as a candidate of the 4th Respondent, as he did not derive from a process known to the 4th Respondents (sic) Constitution and Regulations. The 2nd Respondent has severally stated so in Courts of Record and your Petitioners shall rely on the originating process of such cases like Suit No. FHC/AWK/CS/14/2011: JERRY UGOKWE VS. INEC and the ruling in Suit No. FHC/AWK/CS/15/2011: NICHOLAS UKACHUKWU & ORS VS. INEC, both pending in the Federal High Court, Awka.
This Court has had cause to pronounce on the issue as to “what is a pre-election matter and whether such matters require to be heard on merit where preliminary objection had been raised in relation to them” in many of the decisions it has delivered in recent times. See (1) CA/E/EPT/05/2011 – DR. MICHAEL E. AJOGWU (SAN) & ANOR. V. SENATOR AYOGU EZE & ORS. delivered on 5/9/2011: (2) CA/E/EPT/03/2011 – MRS. MARGERY OKADIGBO V. PRINGE JOHN OKECHUKWU EMEKA delivered on 19/8/2011: (3) CA/E/EPT/07/2011 – HON, CHIKE ANYANWU V. HON. EUHARIA AZODO & ORS. delivered on 6/9/2011: (4) CA/E/EPT/09/2011 – PRINCE NICHOLAS UKACHUKWU V. ANDY EMMANUEL UBA & ORS. delivered on 9/9/2011: and (5) CA/E/EPT/17/2011 – PATRICK AMUZIE V. CHIZOR LAMBERT OBIDIGWE & ORS. delivered on 9/9/2011; amongst others. In the above cited cases, this Court has consistently held that pre-election matters are not suited for Election Petitions. An Election Petition is to challenge the undue election or undue return of the candidate declared as the winner of the election by INEC. When a Petition throws up the issue as to which of two candidates of the same party that actually won an election, or was the proper or qualified candidate of the party in the election, then such a Petition or averment in that regard inextricably raises pre-election matters. A petition that is firmly rooted or predicated on pre-election matters is to be struck out. Also where it is an averment in a Petition that raises a pre-election matter, the paragraph is to be struck out. I have given due consideration to the averment in paragraph 10(v) re-produced above, I am in complete agreement with the Tribunal that it raises the pre-election matter. I find the Tribunal to have correctly struck out the paragraph.
However the same cannot be said for Alternative prayer (b). It is in my considered view inappropriate to consider whether or not the Petitioners are entitled to an alternative prayer at this stage. This is particularly so as the Tribunal never found the party to which the prayer in question relates, to have been improperly joined in the Petition. Entitlement of a party to a relief sought is to be determined in the light of the evidence led in a matter and this is even after the evaluation of such evidence and ascription of credibility thereto. In the instant petition, all the paragraphs that were struck out by the Tribunal save the averment in paragraph 10(v) have been restored, it would therefore smack of jumping the gun to determine the propriety of striking out alternative prayer (b) at this stage.
In conclusion, Appellants’ issue 3, is resolved in their favour to the extent that I have not affirmed the striking out of their alternative Prayer (b). However the striking out of paragraph 10(v) of the Petition by the Tribunal is affirmed.
Given the partial success of Appellants’ issue 1; total success of their issue 2; and partial success of their issue 3; this appeal clearly succeeds and is allowed. The decision of the Tribunal striking out all the paragraphs of the petition it struck out in its ruling delivered on 4/8/2011 (save paragraph 10(v) is set aside. The striking out the name of the 3rd Respondent as a party in the petition and paragraph 10(v) of the Petition by the Tribunal are however affirmed. All the paragraphs of the Petition that were struck out by the Tribunal (save paragraph 10(v)) having been restored therein, the said Petition is hereby sent back to another Tribunal for adjudication.
I make no order as to costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.
ADAMU JAURO J.C.A.: I agree.
Appearances
O.A. Obianwu, SAN;
A.C. Anaenugwu; and
H.C. OnwuegbukeFor Appellant
AND
Arthur Obi-Okafor, SAN;
C.I. Okafor;
J.O. Nwankiti (Miss) for the 1st Respondent
C.E. Ezenduka, for the 2nd Respondent (holding the brief of O.J. Nnadi, SAN)
Chief G. Tagbo Ike, for the 3rd Respondent
P.C. Udeorah with Clems Ezika for the 4th RespondentFor Respondent
