EUGENE O. DIBIAGWU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(2012)LCN/5808(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of June, 2012
CA/OW/42/2012
JUSTICES
UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
EUGENE O. DIBIAGWU Appellant(s)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
THE PROVISION OF THE LAW ON DEALING WITH THE MATTER OF POSTPONEMENT OF ELECTION
Section 26 of the Electoral Act 2010 (as amended) deals with the matter of postponement of election as follows. The relevant Sections are Sections 26(1) and (3) as follows.
’26 – (1). Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is cogent and verifiable.
26 (3) where the commission appoints a substituted date in accordance with subsections (1) and (2) of this Section, there shall be no return for the election until polling has taken place in the area or areas affected.” PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of F.A. Olubanjo J., sitting at the Federal High Court, Owerri delivered on 12th December, 2011.
The Appellant, who was plaintiff before the lower court filed an originating summons on 4th May 2011. By an order of the lower court, the Appellant filed an Amendment originating summons with Exhibits and Supporting Affidavit on 18/05/2011. The Appellant who was the PDP candidate in Oguta Constituency for the Imo State House of Assembly Election held on 26th April 2011 asked for the determination of the following questions:
“1. Whether on a proper construction of Sections 153(1) and (2) 160(1), and Sections 14 and 15 of part 1 of Schedule 3 to the Amended Constitution of the Federal Republic of Nigeria 1999, Sections 1(a) and (b), 2, 25, 26, 27, 30(3), 68, 133(1) and 137(1) of the Amended Electoral Act No. 64 2010, the Defendant have powers to conduct fresh elections in booths and wards in Oguta L.G.A where elections took place on 26th April 2011 and results produced and announced?.
2. Whether on a proper construction of Sections 153(1) 1(2), 160(1) and Sections 14 and 15 of part 1 of Schedule 3 to the Amended Constitution of the Federal Republic of Nigeria 1999, Sections 1(a) and (b) 2, 25, 26, 27, 30 (3), 68, 135(1) and 137(1) of the Amended Electoral Act No. 64 2010, the Defendant have powers to disregard the results of the election of 26th April, 2011 in Oguta LGA.
3. On a proper construction of Sections 1 33(1) and 137(1) of the Amended Electoral Act No. 64 2010 can the defendant question the results of the election of 26th April, 2011 in Oguta L.G.A?
4. Whether on a proper construction of Section 151 of the Evidence Act Cap. 122 Laws of the Federation 2004, is the defendant not precluded or estopped from denying the authenticity, correctness and genuineness of the results of the election of 26th April 2011 in Oguta L.G.A.
5. Whether on a proper construction of Section 26 (4) of the Amended Electoral Act No. 64, 2010 can the defendant return the plaintiff as elected for the Imo State House of Assembly election in the Oguta State Constituency even though elections did not hold in four (4) out of the eleven (11) Wards of Oguta L.G.A.?.
The Appellant as plaintiff thereat prayed the lower court for the following:
(a) A declaration that the defendant lacks the power to conduct fresh election for the seat of Imo State House of Assembly in the Oguta L.G.A. State Constituency in Oguta Ward A, OGUTA WARD B, EGWE/EGBUOMA WARD, ORU WARD, OSSEMOTOR/ENIGBO WARD, AWA WARD AND IZOMBE WARD of Oguta State Constituency after the elections of 26th April, 2011.
(b) A declaration that the defendant lacks the power to disregard the result of the Imo State House of Assembly elections compiled and announced in OGUTA WARD A, OGUTA WARD B, EGWE/EGBUOMA WARD, ORU WARDS, ASSEMOTOR/ENIGBO WARD, AWA WARD and IZOMBE WARD and in OGUTA L.G.A. collation centre as the results of the Imo State House of Assembly elections for Oguta State Constituency held on 26th April, 2011.
(c)A declaration that the defendant lacks the capacity and competence to question the Imo State House of Assembly election in Oguta State Constituency after the issuance and announcement of the results of the said election held on 26th April, 2011.
(d) An order of court restraining the defendant from conducting fresh elections for the Imo State House of Assembly sit in Oguta State Constituency in OGUTA WARD A, OGUTA WARD B, EGWU/EGBUOMA WARD, ORU WARD, OSSEMOTOR/ENIGBO WARD, AWA WARD and IZOMBE WARD, in Oguta State Constituency.
(e) An order of court directing the defendant to utilize the results produced and announced in OGUTA WARD A, OGUTA WARD B, EGWU/EGBUOMA WARD, ORU WARD, OSSEMOTOR/ENIGBO WARD, AWA IVARD and IZOMBE WARD OF OGUTA LGA of Imo State House of assembly sit in Oguta State constituency.
(f) A declaration that it is no longer necessary for the defendant to conduct supplementary elections in Uwaorie Ward, Mbala/Uba Ward, Obudi/Aro Ward and Ndi Uloukwu/Umuowere Ward in Oguta L.G.A. for the Imo State House of Assembly sit (sic) seat.
(g) An order of court directing the defendant to declare the plaintiff as winner of the Imo State House of Assembly in Oguta Local Government state Constituency held on Tuesday 26th of April, 2011 and issue certificate of return to him.
The Appellant supported his Amended originating summons, before the lower court with a 27 paragraph Amended Affidavit in Support and several exhibits. The Respondent filed an eight (8) paragraph Affidavit in opposition. The case of the Appellant as plaintiff in the lower court was that having collated and announced results in the election held on 26th April, 2011 in seven (7) out of the 11 eleven Wards in the Oguta L.G.A. and having secured the majority votes in the results of the (7) seven Wards already announced, the Respondent should declare him as the winner of the said election and if the Respondent is minded to conduct a supplementary election, such an election should only be for those four (4) Wards of the Oguta L.G.A. where elections did not hold on 26th April, 2011.
The Respondent on the other hand, admitted that “results were collated from seven(7) Wards into the Form ECBC(i) that is the collation sheet at the State Constituency level…”. But, that “the returning officer declared the election of 26/4/2011 inconclusive based on the provisions of the INEC manual for election officials 2011.”
The Respondent further stated that its attempt to conduct supplementary elections on 6th May 2011 was forcefully resisted by the people of Oguta. The case of the Appellant before the lower court is better understood from the deposition in paragraph 27 of his Amended Affidavit in Support of the originating summons.
“27. That I am informed by my lawyer F. U. Unyimadu whom I verily believe
(a) That the defendant has no power to disregard the results of the April 26, 2011 House of Assembly elections in Oguta L.G.A.
(b) That the defendant has no power to conduct supplementary elections in the entire Oguta LGA except in the four(4) Wards where the elections did not hold on 26th April, 2011 during the State Assembly elections.
(c) That since the rescheduled supplementary elections into the 4 Wards could not hold due to the peaceful demonstration of the Oguta people, that the defendant can no longer conduct any further supplementary election.
(d) That the defendant has no power to question the election held in 7 Wards out of 11 wards of Oguta L.G.A.
(e) That if any further supplementary elections are conducted, my chances of wining the election will be jeopardized, is the people are no longer prepared to present themselves for any further voting.
(f) That most of my supporters who voted for me have travelled out of the Constituency.
(g) That the arrangement to conduct fresh elections in the entire Oguta L.G.A. is in bad faith.
(h) That conducting another election in Oguta L.G.A. will work untold hardship on the people of Oguta L.G.A. and the Government.
(i) That conducting another election in Oguta L.G.A. will be very expensive and amount to unnecessary waste of time and resources on both the candidate, the people and the Government.
(j) That Imo State Governorship election was decided without result from Oguta Local Government Area.
(k) That the cost of preparing the botched supplementary election was very high and to go through it again will have negative financial implications on my finance.
(l) That the result of the April 26th 2011 election in seven (7) Wards of Oguta L.G.A. substantially sustain the return of the plaintiff as winner of the election.
Before the lower court, the Appellant formulated five(5) issues for determination based on the five(5) questions prayed for determination in the Amended originating summons. The Respondent nominated only one issue for determination to wit:
“Whether the plaintiff can be declared the winner of an election which was declared inconclusive by the returning officer.”
The learned trial Judge merged the five issues nominated for determination by the plaintiff and the sole issue nominated by the defendant for determination and in a considered judgment held inter alia as follows. First, at page 285 that:
“By the provisions of Section 26 (3) (4) and (5) of the Electoral Act (supra), the defendant may, for cogent and verifiable reasons, postpone an election in respect of areas where elections could not be conducted on the appointed date, or it may, if satisfied that the result of the election will not be affected by voting in the areas in respect of which the election has been postponed, make a return concerning the election result in the areas where election took place.
In the instant suit, election took place in seven wards, but was postponed in four Wards due to irregularities which are cogent and verifiable. Even though Independent National Electoral Commission (INEC) could have declared the results in the areas or Wards where the election results were collated pursuant to Section 26 (4), it did not do so but, rather declared the election inconclusive and chose the option of appointing another date for elections to take place in the areas affected by the irregularities.’
Second, at pages 285 – 286, that:
“By the provision of Section 73 of the Electoral Act (supra) the defendant has the power to make guidelines for elections which shall be issued and published in a Gazette. These guidelines have the force of subsidiary legislation, and, it is by these guidelines at Chapter 6 and page 37 thereof that that the Returning officer and by extension, the defendant is authorized to declare the elections of 26th April 2011 at Oguta Local Government Area inconclusive since the margin of win by votes of the candidate with the highest number of votes (i.e. the Plaintiff) was not more than the total number of registered voters at the four wards where the elections were cancelled or not held due to irregularities and malpractices.
The defendant therefore had the power to declare the elections conducted at Oguta Local Government on 26th April 2011 into the Imo State House of Assembly inconclusive. The is consistent with the provisions of Section 68 of the Electoral Act (supra) and chapter 6 page 37 of the Election Guidelines published under Section 73 of the Electoral Act (supra) Third, at pages 286 – 287 that:
“Sections 133(1) and 137(1) of the Electoral Act (supra) provide the answers to this question. By the provisions of these Sections once an election has taken place only an Election petition Tribunal can declare a candidate in the election a winner. Consequently, only an Election Petition Tribunal can direct the defendant to declare a candidate in an inconclusive election winner of that election. This court cannot declare the plaintiff the winner of the inconclusive election of 26th April 2011 since it is not an Election Petition Tribunal. Having carefully considered the facts of this case vide the Affidavit and documentary evidence before the court I can only conclude that none of the actions or steps taken by the defendant regarding the Imo State House of Assembly elections which took place in Oguta Local Government Area during the April 2011 General Elections is contrary to or in contravention of the specific provisions of the 1999 constitution of Federal (as amended), the Electoral Act 2010 (as amended) or the Evidence Act, which the plaintiff has commended to this court for construction.”
And concluded at the same page 287:
“For the reasons stated above, I hereby answer the five questions posed for determination in the Amended originating summons (which are also the five issues raised for determination by plaintiff’s Counsel in his Written Address dated 16th May 2011 ) as well as the lone issue raised for determination by defendants counsel in favour of the defendant. Accordingly, the plaintiff’s claim fails in its entirety, and this Amended originating summons (dated 16th May 2011 but filed on l8th May 2011) is dismissed …………”
Dissatisfied with this judgment, the appellant filed a Notice of Appeal containing five(5) grounds of appeal before this court on 28/1/2012. The Appellant also filed a brief of argument dated 29/2/12 on the same date. In the absence of any brief by the Respondent, this court granted an order that the appeal be heard solely on the Appellant’s brief. Learned counsel for the Appellant nominated three (3) issues for the determination.
“1. Whether the trial court was right in dismissing the case of the Plaintiff/Appellant.
2. Whether it was right for the learned trial Judge to have declined to make a consequential order compelling the defendant to conduct concluding elections in four(4) Wards of Oguta State constituency where elections did not hold on 26th of April, 2011.
3. Whether the learned trial Judge was right in holding that the trial court lacked the jurisdiction to declare the Plaintiff/Appellant winner of the election.
Based on his arguments on the three (3) issues submitted for determination, learned counsel for the Appellant urged this court to allow the appeal, set aside the decision of the trial court and
(a) Declare the Plaintiff/Appellant, as winner of the Imo State House of Assembly Election in Oguta-State Constituency on 26th April 2011.
OR
(b) In the alternative make an order compelling the Defendant/Respondent to conduct election in the four (4) Wards where elections did not hold on 26th April 2011.
In this case, the learned trial Judge held rightly and clearly that:
(i) The Respondent is authorized to declare the elections of 26th April 2011 at Oguta Local Government Area inconclusive since the margin of win by votes of the candidate with the highest number of votes (i.e. the Appellant) was not more than the total number of registered voters at the four Wards where the elections were cancelled or not held.
(ii) Only an Election Petition Tribunal can direct the Respondent to declare a candidate in an inconclusive election winner of that election.
By the above, the learned trial Judge has provided an answer albeit a negative one to the fifth question for determination in the Appellant’s Amended originating summons. That, is, on a proper construction of Section 26(4) of the Amended Electoral Act No. 64, 2011, the Respondent cannot return the Appellant as elected for the Imo State House of Assembly election in the Oguta State Constituency when elections did not hold in four (4) out of the eleven (11) Wards of Oguta L.G.A.
The reasons for the above position of the trial court are first that the elections were declared inconclusive and also because the margin of win by votes of the candidate with the highest number of votes (i.e. the Appellant) was not more than the total number of registered voters at the four Wards where elections did not hold.
By the fact of rendering a negative answer to the 5th question posed in the Appellant’s Amended originating summons, the learned trial Judge also refused the declarations sought in (f) and (g) of the Appellant’s reliefs/claims before the lower court. Consequently, it is still necessary for the Respondent to conduct supplementary elections in Uwaoria Wards, Mbala/Uba Ward, Obudi/Aro Ward and Ndi Uloukwu/Umuowere Ward in Oguta L.G.A. for the Imo State House of Assembly seat. Also, the court would not order the Respondent to declare the Appellant as winner of the Imo State House of Assembly in Oguta Local Government State Constituency held on 26th April 2011 nor direct the Respondent to issue a certificate of return to the Appellant.
However, the above answer by the court below still leaves unresolved the Appellant’s major question in the Amended originating summons which is whether the Respondent has powers to conduct fresh elections in booths and wards in Oguta L.G.A. where elections took place on 26th April 2011 and results were produced and announced. This question is related to reliefs/claims (a) (b) (c) (d) and (e) sought by the Appellant in the originating summons.
As a result of this lacuna in the judgment of the court below, this Honourable court on 28th May 2012, caused hearing notices to issue to parties through their counsel to further address this court on:
“Whether as a matter of law, in the conduct of the State House of Assembly Election, the Independent National Electoral Commission (INEC) has powers to conduct fresh election in the entire Local Government Area or can only conduct supplementary election in affected areas where election is declared to be inconclusive.”
On 30/5/2012, counsel to the parties addressed the court on the question posed by the court. Learned counsel for the Appellant submitted that the Electoral Act 2010 (as amended) provides for a situation where elections are not conducted in some areas within a Constituency on an election day due to unavoidable circumstance. On this, counsel referred to the provision of Sections 26 (1) and (3) of the Electoral Act 2010 (as amended).
Applying the above provisions of the law to the instant case, learned counsel for the appellant submitted that conducting another election in the 11 Wards of Oguta L.G.A. for the Imo State House of Assembly seat means conducting a fresh election. He submitted that under the Electoral Act 2010 (as amended) fresh election can only be conducted in the following situations.
1. When there has been a return of a candidate after the election.
2. When there is a petition challenging the return of the candidate.
3. When the tribunal finds that the returned candidate was not validly elected.
4. When the tribunal finds that the returned candidate was not qualified to contest the election.
5. When the election was marred by substantial irregularities.
6. Where the election was conducted not in compliance with the Electoral Act 2010 (as amended).
These situations, counsel said, are spelt out in Section 140 (1) and (2) of Electoral Act 2010 (as amended).
He said, in the instant case;
1. There has been no return of any of the candidates that contested the election.
2. There is no petition before the tribunal.
3. There has been no finding that any of the candidates
(a) Was not validly elected
(b) Was not qualified to contest the election.
(c) That the election was marred by substantial irregularities
(d) That the election was conducted not in compliance with the Electoral Act.
Counsel submitted, that since none of the above conditions are present in the instant case, it follows therefore that the only recourse available to INEC is the application of Section 26 (1) and (3) of the Electoral Act 2010 (as amended) and paragraph 6.1.3 of the manual made pursuant to Section 73 of the Electoral Act 2010 (as amended)
Learned counsel for the Appellants submitted further that the result of Election shown at page 79 of the Record of Appeal is authentic and binding on INEC.
On this, counsel referred to the cases of Adighije vs. Nwaogu (2010) 12 NWLR (Pt.1209) page 419, and Igbeke vs. Mordi (2010) 11 NWLR (Pt.1204) pg. 1.
He urged this court to order that supplementary elections in Oguta State Constituency for the Imo State House of Assembly seat by conducted in only 4 Wards and not in the entire Oguta L.G.A. The four Wards are
1. Ndiuloukwu/Umuowerre
2. Mgbala/Uba
3. Obudi/Aro
4. Uwaorie
The submissions of the learned counsel for the Respondent on the question posed by this court was in tandem with the submission of the appellants counsel. After stating circumstances where elections could be declared void especially under the provisions of Sections 53 and 70 of the Electoral Act 2010 (as amended) And, for the reasons therein stated that INEC could conduct fresh elections and that by Section 68 of the Electoral Act that the decision of the Returning Officer as to unmarked or rejected ballot papers is final, Respondent’s counsel agreed with the appellant’s counsel that the question nominated by the court is covered by the provision of Section 26 of the Electoral Act 2010 (as amended).
In other words, learned counsel for the Respondent agreed with the Appellant’s counsel that where as in the instant case an election in a Local Government for the State House of Assembly was declared inconclusive, the Independent National Electoral Commission (INEC) can only conduct supplementary election in affected areas where election was declared inconclusive and cannot conduct fresh election in the entire Local Government Area.
Section 26 of the Electoral Act 2010 (as amended) deals with the matter of postponement of election as follows. The relevant Sections are Sections 26(1) and (3) as follows.
’26 – (1). Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is cogent and verifiable.
26 (3) where the commission appoints a substituted date in accordance with subsections (1) and (2) of this Section, there shall be no return for the election until polling has taken place in the area or areas affected.”
In the case of Barrister Caleb Ubale & 1 Or. Vs. Reuben Umaru Dadiya & 8 Ors. (2008) 15 NWLR (Pt.1111) 489 at 502, the Court of Appeal (Jos Division) in circumstances that are on all fours with the present case had to answer the question “whether the tribunal was right to order fresh elections in only two wards where elections could not hold on 14th April 2007 due to disturbances.”
Ndukwe – Anyanwu JCA, who delivered the judgment of the court, held that under Section 27 of the Electoral Act 2006 which is in pari mateia with the provision of Section 26 of the Electoral Act 2010 (as amended) the Independent National Electoral Commission (INEC) has powers to postpone elections and organize fresh election where elections did not take place.
However, it has no constitutional powers to call for fresh elections in the wards where elections have taken place. In the particular case, that it was within the powers of the 3rd respondent (INEC) to postpone elections in the two Wards of Balanga South State Constituency where election did not take place and conduct fresh elections. However, it did not have the power to call for fresh elections in the three Wards already declared.
In view of the above authority, the sole question nominated by this Honourable Court which embodies the three(3) issues formulated for determination by the appellant is resolved in favour of the Appellant.
The consequence of this is that the Appellant is entitled to positive answers on questions 1 – 4 of his Amended originating Summons but only a negative answer on his question No. 5 on whether he could be declared or returned as winner of the said election. By the same token, the Appellant succeeds in terms of his claims for declarations as in (a) (b) (c) (d) (e) of his claims but could not succeed on his claim in (f) and (g) as he could not be declared the winner of an inconclusive Election and as it is still necessary to conduct supplementary elections in the four (4) Wards where elections could not hold on 26th April 2011 in the Oguta L.G.A.
This appeal succeeds in part. The judgment of the Federal High Court sitting at Owerri dated 12th day of December 2011, by His Lordship Honourable Justice F.A. Olubanjo as against the Appellant (Plaintiff/Claimant therein) is accordingly set aside.
The Respondent is hereby ordered to conduct supplementary elections to conclude the inconclusive elections in Oguta State Constituency for the Imo State House of Assembly Seat. The supplementary election shall be conducted in only 4 Wards and not in the entire Oguta L.G.A. The four Wards are:
1. Ndiuf oukwu/Umuowerre
2. Mgbala/Uba
3. Obudi/Aro
4. Uwaorie
This shall be the judgment of the court. There shall be no orders as to Costs.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the judgment of my learned brother M. A. Owoade, JCA, just delivered. I agree entirely with the reasoning and conclusion that the appeal has merit and ought to be allowed to the extent only of the declarations claimed in paragraph (a), (b), (c), (d) and (e). Claims (f) and (g) has no merit as the Appellant could not be declared the winner of an inconclusive election as it is necessary to conduct supplementary election in the four (4) wards where elections could not hold on the 26th April, 2011 in the Oguta Local Government Area.
Section 26(1) of the Electoral Act 2010 (as amended) is very clear and unambiguous on this issue. It stipulates as follows:-
“Where a date has been appointed for the holding of an election and there is reason to believe that a serious brench of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Commission may postpone the election and shall in respect of the area or areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is cogent and verifiable,”
Section 26 (3) also Provides thus:
“Where the Commission appoints a substituted date in accordance with subsections (t) and (z) of this section, there shall be no return for the election until polling has taken place in the area or areas affected.”
These provisions have been judicially pronounced upon in the case of Ubale vs Dadiya (2008) 15 NWLR (pt.1111) 189.
I also allow the appeal in part by setting aside the judgment of the Federal High Court delivered on 12/9/2011. The Respondent is hereby ordered to conduct supplementary elections to conclude the inconclusive elections in the four (4) wards in Oguta Constituency for the Imo State House of Assembly seat.
HARUNA M. TSAMMANI, J.C.A.: I agree.
Appearances
F. U. Unyimadu, Esq,For Appellant
AND
Mrs. O. C. Nwugo, Esq.For Respondent
