COMRADE ADAMS ALIYU OSHIOMHOLE V. CHARLES EHIGIE AIRHIAVBERE & ORS
(2012)LCN/5662(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2012
CA/B/EPT/289/2012
RATIO
ELECTION PETITION: ARE SENSITIVE AND SHOULD NOT BE CONCLUDED BASED ON TECHNICALITIES
I agree with learned senior counsel for the 1st Respondent that election petitions are sensitive and parties should as much as possible be allowed to ventilate their respective grievances without asphyxiating their cases with technicalities. The Supreme Court in HOPE DEMOCRATIC PARTY (HDP) V. INEC (2009) 8 NWLR (PT. 1143) page 297 at 329 per OGBUAGU JSC had this to say:
“I do not with respect, agree with the finding of the court below. The 23 paragraph petition contains numerous grounds for questioning the election.
Although there is no identifiable paragraph of the petition with the grounds specifically set out therein, a global reading of the petition shows clearly that there are grounds for questioning the election. The petitioner alleges and asserts that at the trial, it will prove that the election was held amidst violence, logistical problems, bizarre allocation of 24 million votes by the 2nd respondent in favour of the 4th Respondent without recourse to the actual state of the election; announcement of results even before voting was concluded and in respect of areas where no voting took place, use of result sheets that were not signed and counter-signed by accredited party agents, procuring the services of the 5th Respondent for stuffing ballot papers and hijacking of ballot papers, use of mere loose and unserialised and unbounded ballot papers contrary to the stipulations in the electoral laws etc. The above and many other grounds for questioning the election of the 21/4/07 are contained in the petition. If the petitioner can establish these allegations of the trial, the petition can be sustained.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
ELECTION PETITION: HOW TO DETERMINE THE GROUNDS OF A PETITION
The determination of the grounds of a petition requires a global reading of the petition the paragraphs of the petition being read together. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
COMRADE ADAMS ALIYU OSHIOMHOLE Appellant(s)
AND
1. CHARLES EHIGIE AIRHIAVBERE, MAJ. GEN. (RTD)
2. ACTION CONGRESS OF NIGERIA (ACN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER (EDO STATE)
5. THE RETURNING OFFICER, EDO STATE GOVERNORSHIP ELECTION Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal against the Ruling of the Governorship Election Tribunal holden at Benin City dated 27th September 2012.
The Appellant who was one of the Respondents at the lower tribunal had applied for the dismissal/striking out of the petition on diverse grounds:
In its Ruling, the Tribunal struck out paragraphs of the petition as well as paragraph 30 (1) and (2) of the petition.
Against the said Ruling, the Appellant appealed to this court as per his Notice of Appeal filed on 3/10/2012.
The Notice of Appeal contains one sole ground of appeal which reads (shorn of the particulars):
“The lower Tribunal erred in law in its failure to strike out and/or dismiss the entire petition having struck out Reliefs 30(i) and 30(ii) and paragraphs 12(iv), 13(i), 13(ii), 23, 24 and 25 of the Petition.”
After transmission of record of appeal to this court, the Appellant filed brief of argument on 15/10/2012. Each of the Respondents reacted by filing their respective Respondents’ brief of argument, the Appellant formulated one issue for determination:
“Whether having struck out paragraph 12(iv), 13(i), 13(ii), 23, 24, 25, 30(1) and 30(2) of the petition, the tribunal did not fall into grave error by not striking out or dismissing the entire petition, the remnants of it having become academic and vesting no jurisdiction on the tribunal to adjudicate any longer.”
Learned senior counsel for the Appellant, Chief Wole Olanipekun SAN submitted in his brief that the tribunal having struck out the reliefs excluding the one claiming costs of the petition, and relief being the life wire of an action Tribunal ought to have struck out or dismiss the petition. He relied on UZOKWU v. EZEANU II (1991) 6 NWLR (pt. 200) 784-785, CPC V. INEC (2011) 18 NWLR (Pt.1279) 493 at 501.
He added that the remaining paragraphs of the petition would not sustain the petition. He cited PRP V. INEC (2004) 9 NWLR (PT. 877) 24 at 52, PLATEAU STATE V. AG (FED) (2006) 3 NWLR (PT.967) 346 at 419, ODEDO V. INEC (2008) 17 NWLR (PT. 1117) pg 554 at 600.
Learned senior counsel contended further that there was no longer any live issue before the lower tribunal to adjudicate upon as the only relief remaining was just an ancillary relief. He submitted that when a suit was bereft or devoid of any live issue it could not vest any jurisdiction in any court and the normal consequence was for it to be dismissed or struck out. He cited AKEREDOLU V. AKINREMI (1986) 2 NWLR (PT. 25) 710 at 725. He finally urged the court to allow the appeal.
The 1st Respondent’s brief of argument was settled by Chief E.L. Akpofure SAN. Learned senior counsel also formulated one issue for determination to wit.
“Whether the lower Tribunal was right when it declined to accede to the Appellant’s request to strike out the 1st Respondent’s petition.”
He submitted that paragraphs 19, 20, 21 and 22 of the petition were strong grounds which if proved successfully could ground a relief under section 140(1) of the Electoral Act 2010 (as amended). He relied on TUKUR MOHAMMED BESSE & ANOR V. KABIRU ABDULLAHI & 2 ORS (Unreported) APPEAL NO. CA/S/EPT/11/17/2011 delivered on the 23rd September 2011 (Sokoto Division).
He submitted further that courts were enjoined to be wary of striking out election petitions because of their sensitive nature. He relied on HOPE DEMOCRATIC PARTY (HDP) V. INEC (2009) 8 NWLR (PT. 1143), PAGE 297 AT 329, DURO V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2011) 21 WRN 83 AT 117.
Learned senior counsel for the 1st Respondent posited that the remaining paragraphs of the petition contained live issues and were not academic. He referred to the definition of an academic issue by the Supreme Court in PLATEAU STATE OF NIGERIA & ANOR V. AG FED. & ANOR (2006) 3 NWLR (PT. 967) page 346 at pages 419 – 420. He urged the court to dismiss the appeal as it lacked merit.
The 2nd Respondent’s brief was settled by Abdullahi Ibrahim SAN. Learned senior counsel submitted that since there was no substantive relief before the lower tribunal the tribunal was bound to dismiss the entire petition. He relied on EKPEYONG V. NYONG (2003) 51 WRN 44, NDULUE V. IBEZIM (2002) 12 NWLR (PT 780) 139 at 168, CPC V. INEC (2011) 18 NWLR (PT. 1279) 493 at 558 – 559. He conceded that the appeal had merits.
Learned senior counsel Ahmed Raji SAN in the brief of 3rd – 5th Respondents formulated two issues for determination as follows:
“Whether the Tribunal was still vested with any jurisdiction to competently adjudicate on the remaining paragraphs of the petition after striking out paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(1) and (2) of the petition OR
Are the remaining paragraphs of the petition (after the exclusion of paragraphs 12(iv), 13(i) and (ii) 23 – 25 and 30(1) and (2) of the petition) competent and capable of vesting adjudicatory jurisdiction in the Tribunal?”
Learned senior counsel submitted that the only relief left in the petition was “costs of this petition” and as such there existed no event in the petition for costs to follow. He submitted that the only relief which could enliven the sole ground of the petition was a relief praying for the invalidation of the July 14 2012 gubernatorial election in Edo State. He submitted that there was no such relief prayed for in the remnant of the petition. He conceded the appeal in its entirety.
The Appellant filed a reply to the 1st Respondent’s brief of argument on 22/10/2012. He submitted that the petition crystallized as an academic exercise and urged that the appeal be allowed.
I have carefully considered the submissions of learned counsel on all sides. I need to first observe that none of the 2nd – 5th Respondents has filed an appeal in this neither have they filed Respondents’ notice of contention. They are therefore, except with leave of court not entitled to contend that the decision of the tribunal below should be varied. Order 9 Rules 1 – 3 of the Court of Appeal Rules 2011 is clear on this. It reads:
“(1) A Respondent who not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
(2) A Respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.
(3) Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.
In view of the above, I shall regard the submission and contentions of learned counsel for 2nd – 5th Respondents in so far they contended a variation of the decision of the tribunal in any way, as of no moment in so far they have neither filed an appeal against the decision nor filed Respondents’ Notice of contention. See OKORO V. EGBUOH (2006) 6 SCNJ, 271. The issue for determination in my respectful view is whether the lower Tribunal was right by not striking out the 1st Respondent’s petition. I shall consider this appeal in the light of this issue.
I agree with learned senior counsel for the 1st Respondent that election petitions are sensitive and parties should as much as possible be allowed to ventilate their respective grievances without asphyxiating their cases with technicalities. The Supreme Court in HOPE DEMOCRATIC PARTY (HDP) V. INEC (2009) 8 NWLR (PT. 1143) page 297 at 329 per OGBUAGU JSC had this to say:
“I do not with respect, agree with the finding of the court below. The 23 paragraph petition contains numerous grounds for questioning the election.
Although there is no identifiable paragraph of the petition with the grounds specifically set out therein, a global reading of the petition shows clearly that there are grounds for questioning the election. The petitioner alleges and asserts that at the trial, it will prove that the election was held amidst violence, logistical problems, bizarre allocation of 24 million votes by the 2nd respondent in favour of the 4th Respondent without recourse to the actual state of the election; announcement of results even before voting was concluded and in respect of areas where no voting took place, use of result sheets that were not signed and counter-signed by accredited party agents, procuring the services of the 5th Respondent for stuffing ballot papers and hijacking of ballot papers, use of mere loose and unserialised and unbounded ballot papers contrary to the stipulations in the electoral laws etc. The above and many other grounds for questioning the election of the 21/4/07 are contained in the petition. If the petitioner can establish these allegations of the trial, the petition can be sustained.
In view of the forgoing, the court below was wrong to find that no grounds are stated in the petition.”
The determination of the grounds of a petition requires a global reading of the petition the paragraphs of the petition being read together. I am in agreement with learned 1st Respondents counsel that the remaining grounds of the petition contain grounds strong enough to sustain the petitioners’ case.
Paragraphs 19, 20, 21 and 22 of the petition read thus:
“(19) Your Petitioners aver that despite the existence of patent anomalous situations in the various Polling Units across the entire Local Government of Edo State, the results emanating from these affected Polling Units were collated and included in the final results announced by the 5th Respondent without any explanation given for the anomaly that existed in the result.
(20) Your Petitioners state that the anomaly which existed in the affected various results from the Polling Units comprised the following:
(i) Recording of votes for parties, even when no voters were on queue when voting commenced as depicted in the Form EC8As.
(ii) Ascribing votes to candidates where there had been no accreditation of voters at all as depicted in the Form ECSAs
(iii) Ascribing valid voters to candidates based on results that were not authenticated by Presiding Officers with his signature, and official stamp, and in some cases with no signature to ascertain the dote the Election was held as depicted in the Form EC8As.
(iv) Ascribing valid votes to candidates based on results that were not authenticated by persons purporting to be Presiding Officers other than the officially designated Presiding Officers in the INEC staff list provided to parties before the date of the Election as depicted in the Form EC8A(i)s.
(v) Ascribing votes to candidates without account for missing issued ballot papers as depicted in Form
EC8As.
(vi) Ascribing valid votes to candidates such that the number of used and misused ballot papers exceeded the number of issued ballot papers as depicted in the Form EC8As.
(vii) Ascribing valid votes to candidates such that the number of used and unused ballot papers was lower than the number of issued ballot papers without accounting for the missing ballot papers as depicted in the Form EC8As.
(21) Your Petitioners contend that in each of the affected Polling units the 1st Respondent was credited with the highest votes and that the anomalies have gravely and substantially affected the outcome of the Election.
(22) Your Petitioners state that some of the affected Wards and Units in Oredo Local Government Area by these anomalies include the following:
WARD BOOTHS EC8C (PDP) EC8A (ACN)
3 Uzebu Oliha 1 Oba Akenzua Pry. Sch.025 4 34
5 ICE Oliha II Oliha Pry. Sch.029 4 151
6 New Benin New Benin, Min. of Education 012 2 48
12 Ugbague Ugbague 7 Fire Ser. Forestry 010 3 116
12 Ugbague Ugbague 1 Fire Ser, Forestry 008 3 110
12 Ugbague Ugbague 7 Fire Ser, Forestry 075 3 95
12 Ugbague Ugbague 7 Fire Ser. Forestry 077 2 11
12 Ugbague Ugbague 7 Fire Ser. Forestry 079 5 100
12 Ibiwe Ibiwe I Oba Market Premises 005 5 86
I am also of the firm view that the potency and import of paragraph 4 (1d) of the First Schedule to the Electoral Act is essentially moderated and minimized by the provision of Section 140(1) of the Electoral Act. Section 140(1) of the Electoral Act makes it mandatory for an election petition tribunal, irrespective of the relief sought by the Petitioner subject to Section 140(2) of the Act, on determining that the return of a candidate was not validly made on any ground, to nullify the election.
For clarity’s sake, I shall quote Section 140 (1 and 2) and paragraph 4(1) of the 2nd Schedule of the Electoral Act 2010 (as amended) as follows:
(1) Subject to subsection (2) of this section, if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.
(2) Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election.”
And
4(1) An election petition under this Act shall –
(a) Specify the parties interested in the election petition;
(b) Specify the right of the petitioner to present the election petition;
(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the Petitioner.
Why would the failure of the Petitioner to include the relief sought or the right relief be fatal to the petition when the tribunal is mandated under Section 140(1) of the Act to do nothing other than nullify the election subject to the provision of Section 140(2) of the Act notwithstanding the relief sought by the Petitioner?
Obviously in my view, a strict application of paragraph 4 of the 2nd Schedule with regards to relief sought will conflict with the provision of Section 140(1) of the Electoral Act. I resolve the sole issue as formulated by me in favour of the 1st Respondent in the circumstance.
What I am saying in effect is that
(1) there are sufficient grounds in the petition to sustain it on a global look at the petition.
(2) the fact that the only relief remaining to be struck out in the petition is “COSTS OF THIS PETITION” is not fatal in so far Section 140(1) of the Electoral Act (as amended) can be invoked by the Tribunal to do justice in the circumstance.
I need to state at this stage also that having regard to the decision of this court in Appeal No CA/B/EPT/288/2012 just decided this morning, this appeal becomes a mere academic exercise.
In the light of the above I hold that this appeal lacks merit. It is accordingly dismissed. I hereby order that this petition be remitted back to the lower tribunal to be heard by a panel newly constituted by the President of this Court.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother TUNDE OYEBANJI AWOTOYE JCA. I am in complete agreement with his reasoning and conclusion that the appeal is completely without merit.
In the first instance, this appeal having resolved the appeal CA/B/EPT/288/2012 in favour of the Appellant therein, this appeal cannot but fail.
I have to add that all learned counsel for the 2nd – 5th Respondents are surely aware of the provisions of Or. 9 rules 1- 3 of the Court of Appeal Rules 2011 which prevent them from contesting any decision of the tribunal when they have not filed a cross appeal against the decision nor filed a Respondent’s Notice of Contention. In any event, their briefs are not properly before this court.
I am of the view that there were still other paragraphs in the petition that were triable even after paragraphs 12(iv), 1-3(i) and (ii), 23, 24, 25 and 30(i) and (2) had been struck out. Paragraphs 14 -22 were still alive in view of the provisions of S. 140 (1) (2) of the Electoral Act which provide the types of orders that the Tribunal can make after trial under S. 140(1) where allegations of Electoral malpractices are proved, the Tribunal can nullify the election. Under S. 140(2) if allegations of non-qualifications are proved, the tribunal could order fresh election. In the circumstances, it is obvious that the Tribunal was right to have ordered the other pleadings to be proved on merit.
This appeal fails. It is hereby dismissed. I abide by all the consequential orders.
TOM SHAIBU YAKUBU, J.C.A.: This appeal is a sister to the Appeal No. CA/B/EPT/288/2012
which I, allowed earlier this morning.
The facts, processes and ruling of the lower tribunal contained in the records of appeal are the same. The Appellant in that appeal is the 1st Respondent herein whilst the 1st respondent in the said appeal is the Appellant herein.
Having read the draft of the judgment of this court, in this appeal, just delivered by my learned brother TUNDE OYEBANJI AWOTOYE, JCA, with which I entirely agree, I am satisfied that the appeal is lacking in merits.
I, therefore dismiss it, accordingly.
I, abide by the consequential order remitting the petition to the lower tribunal for a trial de novo contained in the lead judgment.
Appearances
CHIEF WOLE OLANIPEKUN SAN (RICKEY TARFA SAN, O.A. OMONUWA SAN, ABIODUN AMOLE, LASAKI OLELEKAN, O.O. SAMUEL, O OHENHEN, O. OSINARO, F. EREWELE, ADAMS ALIU, V.O. ABIRI (MISS), D.A. ADEJUMO (MRS) with him)For Appellant
AND
E.C. AKPOFURE SAN (S.O. AGWINEDE, F.E. ULINFUN, P.O. IRUA, K.I. AIGBE, D.O.
INEGBEBOR, P.O. AKPOFURE, N.M. ALADUM (MRS), V.O. IDIAGHU with him) for 1st Respondent.
ADETUYI OYEYIPO SAN, (KEN MOZIA SAN, ROTIMI OGINESO SAN, N. EKENEM,
V.E. OHIOSUNMUA, O. IGBINONWAHIA, R.O. OAIHIMIRE (MRS), G.A. OLADEJO, F. OMO-OSADIAYE, A.O. EIKHO, O. OGBAKE, S. OWOTORI and TAJUDEEN ALADE with him) for 2nd Respondent
E.R. UMUKPOERAV (N.H. AUTA and D.O. OWOLABI (MRS) with him) for 3rd to 5th Respondents.For Respondent
