HON. LOUIS CHUKWU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(2011)LCN/4944(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of December, 2011
CA/OW/EPT/20/2011
RATIO
JURISDICTION OF THE ELECTION TRIBUNAL: STATUTORY PROVISION ON THE JURISDICTION OF THE ELECTION TRIBUNAL
The Election Tribunal is a creation of statute. Its scope and jurisdiction is guided by the relevant provisions of the enabling statute, particularly, Section 285 1(b) of the 1999 Constitution (as amended) which provides. “There shall be established for each state of the Federation and the Federal Capital Territory one or more election Tribunals to be known as the National or State House of Assembly Election Tribunals which shall to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether – a) …………………………………….. b) any person has been validly elected as member of the House of Assembly of a State. PER UWANI M. ABBA AJI, J.C.A.
JURISDICTION OF THE ELECTION TRIBUNAL: OFFENCES RELATED TO AN ELECTION THAT CAN NOT BE DETERMINED BY AN ELECTION TRIBUNAL
From the foregoing provision of the Constitution the Appellant’s sole ground in his petition as well as averments in his affidavit in support of the petition allege acts of the 2nd and 3rd Respondents, committed before and on the day of the election. The acts complained of are acts which are criminal in nature and which are not within the contemplation of Section 285 (1) (b) of the 1999 Constitution (as amended). SECTION 129 OF THE ELECTORAL ACT, 2010 CREATES OFFENCES ON ELECTION DAY. It provided Section 129 (1): No person shall on the date on which an election is held do any of the following acts or things in a polling unit or within a distance of 300 meters of a polling unit a) Canvass for votesb) – c) – d) – persuade any voter not to vote at the election e) – f) – e) – h) – i) – j) – Similarly, Section 126 (1) of the Electoral Act 2010 (as amended) provides: 126(1) Any person who: a) – votes at an election or induces or procures any person to vote at an election, knowing that he or such person is prohibited from voting thereat; or b) before or during an election; publishes any statement of the withdrawal “of a candidate at such election knowing it to be false or reckless as its truth or falsify; or c) —— The penalty for the offences listed in the above reproduced portions connotes that such acts are criminal in nature which can only be heard and determine in the regular Courts and not Election Tribunal. This because allegations of corrupt practices must be grounded on acts committed during the election proper. See ANPP vs USMAN (2008) 12 NWLR (PT 1100) 1 AT 55: APGA vs OHAKIM (2009) 4 NWLR (PT 1130) 116 AT 177. PER UWANI M. ABBA AJI, J.C.A.
ELECTION PETITION: POSITION OF THE LAW ON HOW AN ELECTION CAN BE CHALLENGED
By SECTION 133 (1) of the Electoral Act, 2010: “No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to an “election petition”) presented to the competent Tribunal or Court in accordance with the provisions of the constitution or of this Act, and in which the person elected or returned is joined as a party.” PER UWANI M. ABBA AJI, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
HON. LOUIS CHUKWU – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ALL PROGRESSIVE GRAND ALLIANCE
3. CHIEF MRS. EUDORA IGWE
4. DR. CHRISTIAN IGWE – Respondent(s)
UWANI M. ABBA AJI, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fallout of the Ruling of the National and State Assembly Election Petitions Tribunal holden at Owerri, Imo State, which was delivered on the 11th August, 2011, wherein the Learned Judges -Per Hon. Justice U. E. Essang Chairman, Hon. Justice A. M. Yakubu – Member and Hon. Justice A. O. Salihu – Member struck out petitioner’s (Appellant’s) petition, filed on the 17th day of May, 2011 for want of jurisdiction of the Tribunal to hear and determine same.
The brief facts of this appeal is that the Appellant and the 3rd Respondent, among others contested the Imo State House of Assembly seat for Ideato North Constituency of Imo-State, which was held on the 26s day of April, 2011 on the platforms of the Peoples Democratic Party (PDP) and the All Progressive Grand Alliance (APGA) respectively. The 1st Respondent INEC, declared the 3rd Respondent the winner of the said election, having secured the highest number of votes in the said election and accordingly issue her with a certificate of return. The Appellant, obviously dissatisfied with the outcome of the election petitioned the Respondents before the Lower Tribunal; on the grounds that the election was invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act 2010.
The 3rd Respondent challenged the jurisdiction of the Tribunal to hear the Petition and by a motion dated and filed on the 2nd day of July 2011, urged the Lower Tribunal to strike out the petition amongst others, for being competent in that the Tribunal lacked the jurisdiction to entertain and determine matters which purportedly occurred before the conduct of the said election.
After hearing both parties on the motion for striking out filed 2nd July, 2011, the Learned Tribunal Judges struck out the petition for want of jurisdiction. At page 170 of the Record, the Learned Tribunal Judges held inter alia:
“In the whole, the petitioner’s petition filed on the 27th day of May, 2011 in petition number EPT/IM/SHA/33/2011 is hereby struck out for want of jurisdiction of this Tribunal to hear and determine same.”
Being dissatisfied with the above Ruling, the Appellant has appealed to this court vide a Notice of Appeal filed 29th August, 2011, containing two (2) grounds of appeal, which are reproduced hereunder, without their particulars.
GROUNDS OF APPEAL
GROUND ONE:
The Honourable Election Tribunal misdirected itself on the facts when it held that “in fact this Tribunal finds that none of the paragraphs of statement of facts in support of the petition specifically alleges corrupt practices and or non compliance with the Electoral Act during the conduct of the election of the 26th of April, 2011 to support the only ground for the petition and thereby occasioned a miscarriage of justice.
GROUND TWO:
The Honourable Election Tribunal misdirected itself on the facts when it held “that all the complains (six) (complaints) of the petitioners are in respect of campaigns carried on by the 2nd and 3rd Respondents which complaints are of a criminal nature not civil and which events occurred before the election day” and thereby occasioned a miscarriage of justice.
As is the practice in this Court, parties filed and exchanged briefs of argument. However, the 1st and 2nd Respondents filed no briefs. Accordingly, this appeal shall be determined on the basis of the briefs filed by the Appellant as well as that of the 3rd and 4th Respondents.
The Appellants brief of Argument, settled by Chidinma Duruiheoma, formulated a sole issue for determination to wit:
“Whether the Tribunal was right when it held that the corrupt practices complained of by the Petitioner are pre-election matters, over which it had no jurisdiction.”
The 3rd and 4th Respondents brief, settled by G. A. S Amadi Esq, distilled two (2) issues for determination namely:
1. Whether the Honourable Tribunal was right in holding that there were no facts in support of the petition specifically alleging corrupt practices and or non-compliance with Electoral Act 2010 as amended, during the conduct of the election of 26th April, 2011 for the State House of Assembly election for Ideato North State Constituency.
2. Whether the Lower Tribunal was right in holding that the complaint by the Petitioner against the 3rd and 4th Respondents are of criminal nature not civil and which events occurred before the election of 26th April, 2011.
At the hearing of the appeal on the 7th day of October, 2011, Learned Counsel adopted and relied on their respective briefs of argument. Learned Counsel for the Appellant adopted and relied on the Appellant’s brief of Argument dated 10th September, 2011 but filed 12th September, 2011 and urged this Court to allow the appeal. Learned Counsel for the 3rd and 4th Respondents also adopted and relied on their brief of argument dated and filed on the 4h day of October, 2011 and urged this Court to dismiss the appeal.
I shall now proceed to summarize the issues raised by both parties.
In arguing his sole issue for determination, Learned Counsel for the appellant submitted that the petition is competent and that the Tribunal has jurisdiction over the corrupt practices complained about. He relied on Section 138 of the Electoral Act 2011 particularly paragraph (b) to contend that an election can be questioned by reason of for corrupt practices or non compliance with the provision of this Act.
It is further contended before and during the election the 3rd and 4th Respondents and their agents published statements as to the personal character or conduct of the petitioner calculated to prejudice his chance of election and to promote and procure the election of the 3rd Respondent knowing well that the Statement is false. Learned Counsel then proceeded to provide a definition as to what ‘corrupt practices’ mean. He relied on this Court’s decision in CHIME vs ONYIA (2009) 2 NWLR (PT.1124) 1 AT 62; B – E as well as the Supreme Court decision in YUSUF vs OBASANJO (2003) 16 NWLR (PT 847) 554 AT 589 to submit that the situations listed under sections 122, 123, 124, 125, 126 etc of the Electoral Act 2010 (as amended) will amount to “Corrupt Practices”. He relied also the authorities of ADEOLA v. OWOADE (1999) 9 NWLR (PT. 617) 30 AND DIKWA VS MODU (1993) 3 NWLR (PT.280) 170, EKPE VS. MORAH (1999) 9 NWLR (Pt.617) 146.
Learned Counsel further submitted that by virtue of Section 126(1)(c) of Electoral Act (Supra), the Lower Tribunal can hear and determine the petition and its failure to do so resulted in a miscarriage of justice. He referred to the case of ONASHILE vs IDOWU (1961) ALL NLR 313. Learned counsel also submitted that by Section 138 of the evidence Act and decided like C VS ONYIA Supra: NWOBODO vs ONOH (1984) 1 SCNLRI, an allegation of a criminal offence in a civil proceedings is permitted. All that the party who has made such an allegation of crime is required to do is to strive to prove the allegation according to the standard required in criminal matters. On the strength of the foregoing, he urged this Court to hold that the Lower Tribunal was wrong to have held that the facts alleged in the petition were pre-election matters.
Learned counsel to the 3rd and 4th Respondents on his part while arguing his two issues together, submitted that the Lower Tribunal was right in holding that the Appellant petition did not disclose any corrupt practices and or non-compliance with the Electoral Act 2010 as amended. His further submission is that the Petitioner’s allegation that there was false publications made against him were of events well before the election. He concluded that the averments of corrupt practices or electoral offences and non-compliance with the provision of the Electoral Act must be contemporaneous with the Election. He relied on the authorities of PDP v. ONWE (2011) 4 NWLR (PT.1236) 166; IBRAHIM v. INEC (1999) 8 NWLR (Pt.614) 334 at 351.
It is also contended that there was no averment by the Appellant in this petition, specifically alleging corrupt practices on the day of the election rather the allegation was a false publication which occurred during party campaigns and not at the election.
In defining what constitutes an election, Learned Counsel referred to the following authorities: APGA vs OHAKIM (2009) 4 NWLR (PT 1130) 116 AT 177 INEC vs RAY (2004) 14 NWLR (PT 892) 92. His further view is that corrupt practices and non compliance must be founded on the activities on the day of election. He relied on the case of  ANPP V. USMAN (2008) 12 NWLR (PT.110) 1 AT 55, as well as the case of IBRAHIM vs INEC (1999) 8 NWLR (PT 614) 334.
It is the further submission of Learned Counsel to the 3rd and 4th Respondent that by Section 133 (1) of the Electoral Act 2010 (as amended) no petition at Election Tribunal shall be competent, unless it relates to undue election or return in an election or the petition relates to issues arising from an election. He submitted that any of the listed electoral offences including SECTION 126(1) (c) IN THE ELECTORAL ACT 2010 which did not occur during the conduct of election in terms of accreditation, voting, collation of results, declaration of results etc cannot amount to corrupt practices to ground an election petition.
He submitted that having failed to aver any event that occurred at the election of 26th April, 2011, the matter/petition cannot come within the jurisdiction of the Election Petitions Tribunal relying on the case of AGOMUO vs OGUNWEGBU (1999) 4 NWLR (PT.599) 405 as well as the case of UZODINMA vs UDENWA (2004) 1 NWLR (PT.854) 303 AT 344 – 345, he urged this Honourable Court to dismiss the appeal and uphold the ruling of the Lower Tribunal.
I have meticulously studied the submissions of Counsel on both sides. What is obvious from their submissions is whether or not the sole ground of the Appellant’s petition at the Lower Tribunal was based on actions taken before or during the election of 26th April, 2011. In order to answer this question effectively, I will proceed to take a critical look at the relevant portions of the affidavit in support of the petition and reproduce same hereunder:
Paragraph 12 – that on the 25th April, 2011 and on the 26th April, 2011, the 2nd, 3rd and 4th Respondents made and published false and inciting statement and documents against me purporting the same to have been made by me.
Paragraph 16 – That by these publications, I was by the election day seen as a (sic) person that does not have any respect for leaders, is against the political order in Ideato North, not a Christian but a pagan, and does not have respect for Traditional Rulers and institutions and above all that I will deal with the Mbanasa people if voted into power again. The people of Mbanasa have ten (10) out of the fourteen (14) electoral wards in Ideato North.
Paragraph 18 – That on the 24th, 25th and 266 April, 2011, the Agents, members of the campaign team of the 3rd and 4th Respondents and the chairman of the 2od Respondent in the Local Government were seen distributing the destructive documents in various churches in the Local Government in the following wards of Ideato North, Umuago/Ozuakoli, Ezemazu/Ozuome Ward, Osina Ward, Umukegwu/Umuopia Ward, Akwu/Owerri Ward, Umuokwara/Umuezoaga Ward, Akpulu Ward, Obodo Ukwu Ward, Isiokpo Ward, Iheme Ward, Imoko Ward, Izuogu Ward I, Izuogu Ward 11 and Uzi/Umualoma Ward and in various booths within these wards.
Paragraph 19 – That by the 26th of April, being the day of the election, the once popular Hon. Louis Chukwu has become unpopular, the once loved Louis Chukwu has become hated, all on account of these publications. The people from Ideato North in a flash forgot all the projects I attracted to them and all my good works.
Paragraph 22 -That on 25th April, being Easter Sunday agents of the 2nd and 3rd Respondents with their cohorts were in all the Churches in Ideato North distributing the malicious documents.”
An appraisal of the above reproduced portions of the affidavit would reveal that the allegations of the corrupt practices and non-compliance with the Electoral Act 2010 (as amended) occurred between the 24th -26th April, 2011.
The Election Tribunal is a creation of statute. Its scope and jurisdiction is guided by the relevant provisions of the enabling statute, particularly, Section 285 1(b) of the 1999 Constitution (as amended) which provides.
“There shall be established for each state of the Federation and the Federal Capital Territory one or more election Tribunals to be known as the National or State House of Assembly Election Tribunals which shall to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether –
a) ……………………………………..
b) any person has been validly elected as member of the House of Assembly of a State.
From the foregoing provision of the Constitution the Appellant’s sole ground in his petition as well as averments in his affidavit in support of the petition allege acts of the 2nd and 3rd Respondents, committed before and on the day of the election. The acts complained of are acts which are criminal in nature and which are not within the contemplation of Section 285 (1) (b) of the 1999 Constitution (as amended). SECTION 129 OF THE ELECTORAL ACT, 2010 CREATES OFFENCES ON ELECTION DAY. It provided Section 129 (1):
No person shall on the date on which an election is held do any of the following acts or things in a polling unit or within a distance of 300 meters of a polling unit a) Canvass for votes
b) –
c) –
d) – persuade any voter not to vote at the election
e) –
f) –
e) –
h) –
i) –
j) –
Similarly, Section 126 (1) of the Electoral Act 2010 (as amended) provides:
126(1) Any person who:
a) – votes at an election or induces or procures any person to vote at an election, knowing that he or such person is prohibited from voting thereat; or
b) before or during an election; publishes any statement of the withdrawal “of a candidate at such election knowing it to be false or reckless as its truth or falsify;
or
c) ——
The penalty for the offences listed in the above reproduced portions connotes that such acts are criminal in nature which can only be heard and determine in the regular Courts and not Election Tribunal. This because allegations of corrupt practices must be grounded on acts committed during the election proper. See ANPP vs USMAN (2008) 12 NWLR (PT 1100) 1 AT 55: APGA vs OHAKIM (2009) 4 NWLR (PT 1130) 116 AT 177.
By SECTION 133 (1) of the Electoral Act, 2010:
“No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to an “election petition”) presented to the competent Tribunal or Court in accordance with the provisions of the constitution or of this Act, and in which the person elected or returned is joined as a party.”The petition in the instant appeal is not questioning or complaining of an undue election or undue return of the election of the 3rd Respondent after election held on the 266 day of April, 2011 but of those allegations as reproduced in the judgment which are events leading to the petition.
From the foregoing and on the authority of AMAECHI vs INEC AND 2 ORS (2007) 18 NWLR (PT 1065) 170 AT 196. I am of the firm view that the events leading to the petition are pre-election matters which the Lower Tribunal has no jurisdiction to hear and determine.
Consequently, this appeal lacks merit and it is hereby dismissed.
The Ruling of the Lower Tribunal delivered on the 11th day of August, 2011 in Petition No. EPT/IM/SHA/33/2011, between HON. LOUIS CHUKWU vs INEC AND 3 ORS is hereby affirmed.
This represents our reasons for dismissing the appeal on the 7th October, 2011.
CHIDI NWAOMA UWA, J.C.A.: I agree.
HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading before now, the lead judgment delivered by my learned brother, Uwani Musa Abba Aji, JCA (Presiding).
I agree with the reasoning and conclusion arrived at in this judgment. I have nothing else useful to add. In that respect, I too dismiss this appeal as lacking in merit.
I abide by the consequential order(s).
Appearances
Chief Eze Dunriheoma, SAN, with J. Akaro, Esq and C. Duruiheoma, Esq. For Appellant
AND
G.A.S. Amadi, Esq for the 3rd and 4th Respondents.
No appearance for 1st and 2nd Respondents. For Respondent
