INDEPENDENT NATIONAL ELECTORAL COMMISSION & Ors v. BARRISTER CELESTINE O. EJEZIE & Ors (2010)

INDEPENDENT NATIONAL ELECTORAL COMMISSION & Ors v. BARRISTER CELESTINE O. EJEZIE & Ors

(2010)LCN/3938(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of July, 2010

CA/E/EPT/43/2008 (CON.)

RATIO

PRELIMINARY OBJECTION: REASON FOR CONSIDERING A PRELIMINARY OBJECTION FIRST WHEN RAISED IN RESPECT OF AN APPEAL

…the settled position of the law that when a preliminary objection is raised in respect of an appeal, the same should be considered first. See YARO V. AREWA CONSTRUCTION LTD (2008) All FWLR (Pt. 400) 603. This is because if the said preliminary objection is upheld there will be no need to consider the appeal on the merit. See KALAGBOR V. GENERAL OIL LTD (2008) All FWLR (Pt. 418) 303. This is particularly so when the appeal in question is before the final Court seised of the same. PER AYOBODE LOKULO-SODIPE, J.C.A.

INTERPRETATION OF STATUTE: PROVISION OF SECTION 246(3) OF THE CONSTITUTION AS TO WHETHER THE DECISIONS OF THE COURT OF APPEAL IN RESPECT OF APPEALS ARISING FROM ELECTION PETITION IS FINAL

Section 246(3) of the 1999 Constitution also provides that: – “The decisions of the Court of Appeal in respect of appeals arising from election petition shall be final. PER AYOBODE LOKULO-SODIPE, J.C.A.

INTERPRETATION OF STATUTE: PROVISION OF SECTION 246(1) OF THE 1999 CONSTITUTION AS TO WHEN AN APPEAL ARISING FROM THE DECISIONS OF THE NATIONAL ASSEMBLY ELECTION TRIBUNALS AND GOVERNORSHIP AND LEGISLATIVE HOUSES ELECTION TRIBUNALS IS OF RIGHT

Section 246(1) of the 1999 Constitution provides thus:- “An appeal shall lie to the Court of Appeal as of right from – (a)XXXXXXXXXXXXXXXXXXX (b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether – (i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution, (ii) any person has been validly elected to the office of Governor or Deputy Governor, or (iii)the term of office of any person has ceased or the seat of any such person has become vacant. PER AYOBODE LOKULO-SODIPE, J.C.A.

ELECTION PETITION: PURPOSE OF ELECTION PETITION

PARTIES TO AN ACTION: WHO CAN PRESENT A PETITION BEFORE AN ELECTION PETITION TRIBUNAL

…who can present a Petition before an Election Petition Tribunal established pursuant to the provisions of the 1999 Constitution re-produced above, are not provided for in the said Constitution. Persons entitled to present election petitions are set out in Section 144(1) of the Electoral Act, 2006 and they are (i) a candidate in the election; and (ii) a political party which participated in the election. Section 144(2) of the Act in question further provides for those who are to be Respondents in a petition and the circumstances which would warrant this. PER AYOBODE LOKULO-SODIPE, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria

AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. THE ELECTORAL OFFICER
3. THE LOCAL GOVT. RETURNING OFFICER
4. THE AMAMU WARD 1 RETURNING OFFICER
5. THE AMAMU WARD 2 RETURNING OFFICER
6. THE UZOAKWA WARD RETURNING OFFICER
7. THE IHITE WARD RETURNING OFFICER
8. THE OGBORO WARD RETURNING OFFICER
9. THE ULI WARD 1 RETURNING OFFICER – CA/E/EPT/43/2008
10. THE ULI WARD 2 RETURNING OFFICER
11. THE ULI WARD 3 RETURNING OFFICER
12. THE AMORKA WARD RETURNING OFFICER

AND

1. BARRISTER CELESTINE O. EJEZIE
2. ALL NIGERIA PEOPLE’S PARTY
3. CHIEF SIMEON OHAJIANYA

(CONSOLIDATED) Appellant(s)

AND

CHIEF SIMEON OHAJIANYA – CA/E/EPT/44/2008

AND

1. BARRISTER CELESTINE O. EJEZIE
2. ALL NIGERIA PEOPLE’S PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE ELECTORAL OFFICER
5. THE LOCAL GOVT. RETURNING OFFICER
6. THE AMAMU WARD 1 RETURNING OFFICER
7. THE AMAMU WARD 2 RETURNING OFFICER
8. THE UZOAKWA WARD RETURNING OFFICER
9. THE IHITE WARD RETURNING OFFICER
10. THE OGBORO WARD RETURNING OFFICER
11. THE ULI WARD 1 RETURNING OFFICER
12. THE ULI WARD 2 RETURNING OFFICER
13. THE ULI WARD 3 RETURNING OFFICER
14. THE AMORKA WARD RETURNING OFFICER

(CONSOLIDATED) Respondent(s)

AYOBODE LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 25th February, 2008 by the Governorship and Legislative Houses Election Tribunal II, holden at Awka, Anambra State, in PETITION NO: EPT/AN/SAB47/07 – BARRISTER CELESTINE O. EJEZIE & ANOR V. CHIEF SIMEON OHAJIANYA & 13 ORS. The 1st Petitioner and the political party (ANPP) on whose platform he contested the election into the Anambra State House of Assembly on 14/4/2007, jointly presented the Petition challenging the return of the 1st Respondent therein – Chief Simeon Ohajianya as the winner of the election in question. The political party on whose platform the 1st Respondent contested the election is the 2nd Respondent in the Petition. The other Respondents in the Petition are INEC sued as the 3rd Respondent, and some INEC officials involved in the conduct of the election and who were sued as 4th – 14th Respondents. The Governorship and Legislative Houses Tribunal II, Awka, (hereinafter to be simply referred to as “the Tribunal”) in its judgment nullified the election of the 1st Respondent and ordered a fresh election.
The facts of this matter put briefly are that the 1st Petitioner along with other candidates, contested the election into the Anambra State House of Assembly for Ihiala 1 Constituency held on 14/4/2007, on the platform of the 2nd Petitioner – All Nigeria Peoples Party (ANPP); while the 1st Respondent contested the same election on the platform of the Peoples Democratic Party (PDP). The election in question was organised by the 3rd Respondent and the 4th – 14th Respondents were some of the officials of the 3rd Respondent that conducted the election. At the conclusion of the election, the 3rd Respondent declared and returned the 1st Respondent as the winner of the election as he scored the highest number of votes – 17,120. The 1st Petitioner who scored 2,256 votes and his political party (ANPP) being dissatisfied with the return of the 1st Respondent filed the Petition hereinbefore mentioned, upon the grounds re-produced hereunder and also prayed for the reliefs equally re produced hereunder: –
GROUNDS UPON WHICH THE PETITIONER (SIC) RELIES (SIC)
(a) That the 1st Respondent was not elected by the majority of lawful votes cast at the said election held on 14th day of April 2007 having not polled the highest or majority of the lawful votes cast at the said election.
(b) That the 3rd – 14th Respondents should not have duly returned or declared as elected the 1st Respondent as the winner of the said election.
(c) The election or return of the 1st Respondent is invalid by reason of corrupt practices and non-compliance with the provision of the Electoral Act 2006.
(d) The 3rd – 14th Respondents unlawfully excluded the valid votes cast for your Petitioner in determining the winner of the said election.”
Reliefs sought by the Petitioners are: –
“WHEREFORE your Petitioners pray the Honourable Tribunal that it be determined and declared:
(i) That the said 1st Respondent was not duly declared elected or returned and should not be declared as duly returned or duly elected by the 3rd – 13th Respondents.
(ii) That the Honourable Tribunal declared the Petitioner as validly and duly elected or returned having scored or polled the highest number or majority of lawful votes cast at the said election and ought to have been returned as the winner of the election.
ALTERNATIVELY
That the election conducted for the House of Assembly of Anambra State Ihiala 1 Constituency seat be declared null and void for substantial rigging and corrupt practices which marred the election.
That an order be made directing the 3rd Respondent to conduct a fresh election for the said seat.”
The 1st Respondent in the Petition (now 3rd Respondent) and his political party filed a joint Reply to the Petition. The Appellants likewise filed a joint Reply to the Petition. In the main the two sets of Respondents denied the allegations that the 1st Respondent was unduly returned and consequently the entitlement of the Petitioners to the prayers they seek in the Petition. At the trial before the Tribunal, the Petitioners (now 1st and 2nd Respondents) called 14 witnesses while the 1st and 2nd Respondents thereat called 8 witnesses and the 3rd – 14th Respondents (now Appellants) called 6 witnesses. The Tribunal after considering the evidence adduced by the parties and their respective written addresses, nullified the election of the 1st Respondent (now 3rd Respondent) and ordered that the 3rd Respondent (now 1st Appellant) should conduct a fresh election into the Anambra State House of Assembly for Ihiala Constituency.
The Appellants who were the 3rd – 14th Respondents before the Tribunal being dissatisfied with the decision of the said Tribunal lodged the instant appeal against the same, by an undated Notice of Appeal filed on 13/3/2008. The said Notice of Appeal contains 12 grounds of appeal. The reliefs which the Appellants seek from this Court in the appeal are: –
“(i) To allow the Appeal,
(ii) Set aside the judgment of the Tribunal below,
(iii) Uphold and confirm the election of Chief Simeon Ohajianya as the winner of the election in Ihiala 1 Constituency.”
In compliance with the practice and Rules of this Court, parties to the appeal filed and exchanged Briefs of Argument and which were amended as considered appropriate. The Appellants ended up with “Appellant’s (sic) Amended Brief of Argument” and “Appellants’ Amended Reply Brief”. Both Briefs are dated 25/5/2009 and were filed on 27/5/2009. The Briefs were settled by C.C. Okaa. The 1st and 2nd Respondents filed on 23/6/2008 a “1st and 2nd Respondents’ Notice of Preliminary Objection and Brief of Argument” dated 20/6/2008. The said Brief was settled by J.T.U Nnodum, Esq., SAN.
The 3rd Respondent in the appeal did not file any Brief of Argument. The appeal was entertained on 21/4/2010. At the hearing of the appeal learned senior counsel for the 1st and 2nd Respondents having first drawn the attention of the Court to the Notice of Preliminary Objection contained in the said Respondents’ Brief of Argument and having also withdrawn the ground of objection set out at paragraph 4.01 (f) as well as the argument that relates to the same, at paragraph 4.1 of the Brief in question, argued the preliminary objection set out in the said Notice. In urging the Court to uphold the preliminary objection, learned senior counsel adopted and relied on the arguments relating to the same as contained in the 1st and 2nd Respondents’ Brief of Argument. Learned counsel for the Appellants in urging the Court to overrule the preliminary objection and dismiss the same, equally adopted and relied on the arguments in relation to the preliminary objection as contained in the Appellants’ Amended Reply Brief. Thereafter learned counsel for the Appellants also adopted and relied on the arguments in both the Appellants’ Amended Brief of Argument and Appellants’ Amended Reply Brief, respectively, in urging the Court to allow the appeal. Responding to the appeal proper, learned senior counsel for the 1st and 2nd Respondents adopted and relied on the said Respondents’ Brief of Argument in urging the Court to dismiss the Appeal. Arthur Obi-Okafor, SAN, learned senior counsel for the 3rd Respondent had nothing to urge in the appeal as no Brief of Argument was filed on behalf of his client.
The Appellants formulated five Issues for the determination of the appeal from the 12 grounds of appeal contained in their Notice of Appeal.
The said 5 Issues are hereby re-produced: –
“1. Whether the Honourable Tribunal having held that the petitioner did not prove his case as to entitle him to the relief sought, was right to have nullified the election.
2. Whether the Honourable tribunal was right to have suo motu raised the issue of inconclusive results and without hearing the parties nullified the election.
3. Whether the trial tribunal was right in holding that the results tendered by the petitioners was more credible than that of the respondents.
4. Whether the Honourable tribunal was right when it held that election was held in Uli wards I and II.
5. Whether the Honourable tribunal was right to have held the presumption of correctness and authenticity placed on the results by law was rebutted by the petitioners.”
The 1st and 2nd Respondents (hereinafter to be simply referred to as “the Respondents”) having stated that grounds 2 – 5 of the 12 grounds of appeal contained in the Notice of Appeal had been abandoned, formulated 3 Issues for the determination of the appeal from the remaining 8 grounds of appeal.
The 3 Issues read thus: –
“a) Whether the Tribunal was right in accepting the Petitioners’ set of result forms as the authentic result of the election:
b) Whether the Tribunal was right in including the results for Uli Wards I and II as part of the result of the election:
c) Whether the Tribunal was right to have nullified the election:”
Before I consider the appeal on the merit (if need be) I will first deal with the preliminary objection raised by the Respondents in their Brief of Argument.
This is in accordance with the settled position of the law that when a preliminary objection is raised in respect of an appeal, the same should be considered first. See YARO V. AREWA CONSTRUCTION LTD (2008) All FWLR (Pt. 400) 603. This is because if the said preliminary objection is upheld there will be no need to consider the appeal on the merit. See KALAGBOR V. GENERAL OIL LTD (2008) All FWLR (Pt. 418) 303. This is particularly so when the appeal in question is before the final Court seised of the same. It is indisputable that by virtue of Section 246(3) of the 1999 Constitution this Court is the final appellate court in respect of appeals arising from election petitions.
In the Notice of Preliminary Objection brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007 in the Brief of Argument of the Respondents, the Respondents gave the Appellants notice that they shall raise a Preliminary Objection to the competence of the appeal or a part of the appeal on the grounds set out hereunder. The said grounds (excluding ground (f) that was withdrawn at the hearing of the preliminary objection) read thus: –
“(a) the Appellants have no right of appeal against the judgment of the Tribunal as they have not suffered any injury therefrom;
(b) the Appellants have not disclosed any cognizable interest in the outcome of the appeal which is primarily in support of the 3rd Respondent’s appeal against the same judgment of the Tribunal in CA/E/EPT/44/2008 pending before this Honourable Court;
(c) the Appellants’ grounds of appeal and issues said to be distilled therefrom are the same or similar with those of the 3rd Respondent’s appeal No. CA/E/EPT/44/2008 thereby giving rise to duplicity;
(d) the issues for determination in the Appellants’ brief of argument are incompetent not having been shown to arise from the grounds of appeal;
(e) the issues for determination in the Appellants’ brief of argument are incompetent having incorporated arguments not supported by the grounds of appeal;
(f) (withdrawn)
(g) Grounds 2, 3, 4 and 5 of the grounds of appeal, not having been subsumed into any issue for determination or argued, are deemed abandoned and should be struck out.”
The Respondents argued the first and second grounds of the preliminary objection together. The Respondents submitted to the effect that the 1st Appellant is a statutory body established by Section 153 (1)(f) of the 1999 Constitution and charged to direct and supervise the registration of voters and conduct elections. That the 1st Appellant becomes functus officio upon the conclusion of an election and return made in the election; and has no right of appeal against the decision of an Election Petition Tribunal particularly in a decision such as the instant one, where it has not suffered any injury.
The Respondents said that the inclusion of the 1st Appellant and its staff in an Election Petition is to enable them give evidence as an impartial body, on how they conducted the election and whom they returned as the winner of the election. The Respondents further said that a decision of an Election Petition Tribunal upholding a return or overturning the return or directing the conduct of a fresh election is not appealable by the 1st Appellant unless it can establish that it has sufficient interest in the appeal or has suffered an injury by the decision of the Election Petition Tribunal. It is the submission of the Respondents that the 1st Appellant has no legal right to challenge the decision of an Election Petition Tribunal to favour the interest of one of the parties that contested the election. The case of Balonwu v. Ikpeazu (2005) 13 NWLR (Pt. 942) 479 at 514 was cited in aid.
Relying on Section 6(6)(b) of the 1999 Constitution the Respondents submitted to the effect that the 1st Appellant has no right to complain against the decision of the Tribunal nullifying the election of the 3rd Respondent who has himself appealed against the same decision on essentially the same grounds as those of the 1st Appellant. This is because, the candidates and their respective parties have a right to be declared the winner of an election when they polled the majority of lawful votes cast at the election and to appeal against any decision upon their own complaints. The Respondents submitted to the effect that an order directing the 1st Appellant and its staff to conduct a fresh election (i.e. repeating what they have done wrongly) cannot be the injury they will suffer because they cannot justify their existence if they are not conducting election. In the circumstances the Respondents further submitted that the Appellants have no locus standi to bring the instant appeal.
This is because for a party to have locus standi to appeal a decision, such a party under Section 6(6)(b) of the 1999 Constitution ought to have a right to institute the action. An Election Petition, the Respondents said, is essentially a legal dispute between the two candidates that contested election for the tribunal to determine who actually polled the majority of the lawful votes cast at the election.
Dwelling on the grounds of objection of the Respondents as highlighted above, the Appellants in their Amended Reply Brief, referred to Section 246(1) of the 1999 Constitution (and which they said is unambiguous) as clothing them with the right to appeal against the decision of the Tribunal as of right. The cases of In Re – Madaki (1996) NWLR (Pt. 459) 153 at 163 and Rabiu v. Kano State (1980) 8-11 SC 130 were cited in aid. The Appellants submitted that the Constitution never provided that it is only persons that have suffered injury that have the right of appeal. It is also the submission of the Appellants that the 1st Appellant qualified as a party aggrieved/party affected by the nullification of the election in the circumstances of the instant Petition. This is because the Tribunal without any of the parties asking for a relief of nullification of the election; decided to nullify the election conducted by the Appellants. Furthermore, the Appellants said that the Tribunal in its judgment made definite findings and conclusions which affected its officers such as the Constituency Returning Officer, the Electoral Officer and the adhoc staff. That results forms returned by officers of the 1st Appellant were rejected while forms which did not originate from them were admitted. These the Appellants submitted vested them with sufficient interest to appeal against the judgment of the Tribunal and the case of Ekechi v. Okah (1993) 1 NWLR (Pt. 267) at 45 was cited in aid. The Appellants said that the contention of the Respondents that the 1st Appellant was not being neutral is without basis as the Tribunal did not uphold the return of any of the parties and as all the parties are dissatisfied with the judgment of the Tribunal with each of them filing separate appeals. The Appellants contended that the case of Balonwu v. Ikpeazu (supra) is distinguishable from the instant one and stated the basis for the contention.
Section 246(1) of the 1999 Constitution provides thus:-
“An appeal shall lie to the Court of Appeal as of right from –

(a)XXXXXXXXXXXXXXXXXXX
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution,
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii)the term of office of any person has ceased or the seat of any such person has become vacant.”

Section 246(3) of the 1999 Constitution also provides that: –
“The decisions of the Court of Appeal in respect of appeals arising from election petition shall be final.”

Election Tribunals are established pursuant to the provisions of Section 285(1) and (2) of the 1999 Constitution. The provisions read thus: –
“Section 285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any other court or tribunal, have original jurisdiction to hear and determine petitions as to whether –
(a) any person has been validly elected as a member of the National Assembly;
Section 285 (2)
(b) the term of office of any person under this Constitution has ceased;
(c) the seat of any member of the Senate or a member of the House of Representatives has become vacant; and
(d)a question or petition brought before the election tribunal has been properly or improperly brought.
There shall be established in each State of the Federation one or more election petition tribunal to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any other court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”

Election Petition is basically presented before an Election Tribunal complaining of an undue election or undue return in respect of an election or return at an election; and therein the person elected or returned is joined as a party. See Section 140 of the Electoral Act, 2006.
Those who can present a Petition before an Election Petition Tribunal established pursuant to the provisions of the 1999 Constitution re-produced above, are not provided for in the said Constitution. Persons entitled to present election petitions are set out in Section 144(1) of the Electoral Act, 2006 and they are (i) a candidate in the election; and (ii) a political party which participated in the election. Section 144(2) of the Act in question further provides for those who are to be Respondents in a petition and the circumstances which would warrant this.

Section 145(1)(a) – (d) of the Electoral Act, 2006 also sets out the grounds of an election petition.

The 1st Appellant in the instant appeal is INEC. It is one of the Federal Executive Bodies established for the Federation in the 1999 Constitution. The powers of the 1st Appellant are set out in the Third Schedule, Part 1 of the 1999 Constitution. They read thus: –
(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and House of Assembly of each State of the Federation;
(b) register political parties in accordance with the provision of this Constitution and an Act of the National Assembly;
(c) monitor the organisation and operation of the political parties, including their finances;
(d)xxxxxxxxxxxxxxxxxxxxxxxxx
(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;
(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;
(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe to the oath of office prescribed by law;
(h) delegate any of its powers to any Resident Electoral Commissioner; and
(i) carry out such other function as may be conferred upon it by an Act of the National Assembly.
See also Section 2 (a) – (c) of the Electoral Act, 2006 in respect of additional functions conferred on the 1st Appellant by the said enactment.

The principles or canons of interpretation are settled. In this regard see the case of ABAYOMI BABATUNDE V. PAN ATLANTIC SHPPING AND TRANSPORT AGENCIES LTD & 2 ORS [2007]1 All FWLR (Pt. 372) 1721 at 1752 where the Supreme Court stated, per Muhammad, JSC, thus: –
“Judge’s duty is to interpret and not to make the law. In the interpretation process, the Judge should be liberal and give the natural meaning of the statute where the words are clear and unambiguous”.
Another case on the interpretation of statutes is that of DAPIANLONG V. DARIYE (2007) All FWLR (Pt. 373) 81. In the said case the Supreme Court reiterating its position in the case of Fawehinmi vs. I.G.P. (2002) FWLR (Pt.108) 1355, etc, stated thus at pages 128-129: –
“The proper approach to the interpretation of clear words of statutes is to follow them, in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning: see … This is generally also true of the construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation”.
Still on the interpretation of statutes is the case of GAFAR V. THE GOVERNMENT OF KWARA STATE (2007) ALL FWLR (Pt. 360) 1415. In the case, the Supreme Court dealing on the duty of the court when it comes to statutory interpretation stated at page 1444 thus: –
“It is now settled law that the duty of the courts, is to interpret the words contained in a statute or Constitution in their ordinary and literal meaning. Certainly, it is not the duty of the court, to go outside the words used and import an interpretation which may be or is convenient to it or to the parties or one of the parties.”
It is my considered view against the backdrop of the settled canons of interpretation stated above, that by no stretch of imagination can it be said that the 1st Appellant and its officers are entitled to present an election petition (though they can be sued as Respondents in the circumstances enumerated under the Electoral Act, 2006). I have hereinbefore re-produced the provision of Section 246(1) vesting this Court with appellate jurisdiction in respect of decisions of the National Assembly Election Tribunals/Governorship and Legislative Houses Election Tribunals and Section 246(3) making this Court the final appellate court in respect of appeals arising from election petitions. It is not in doubt that in law, the decision of the Tribunal being appealed against by the Appellants in the instant appeal, i.e. the nullification of the election of the 3rd Respondent, is clearly a decision that has invalidated the return of the said 3rd Respondent at the election of 14/4/2007. See OJO V. AYODELE (2009) All FWLR (Pt. 499) 583 at 604.
The question then is, what is it that clothes or confers on the 1st Appellant who is by law not entitled to present a petition for the determination as to whether any person has been validly elected as a member of any legislative house amongst others, to approach this Court on appeal to determine the very same question or issue that it cannot seek for its determination before the Tribunal? (See the reliefs the Appellants seek in the instant appeal and which have been hereinbefore set out). The candid and irresistible answer to the poser, in my considered view is that the Constitution does not clothe the 1st Appellant with, or confer on it, any right of appeal to this Court to seek for the determination of any question as to whether or not any person has been validly elected as a member of a House of Assembly amongst others. The fact that the Electoral Act, 2006 makes the 1st Appellant and its officers proper respondents that can be sued in circumstances enumerated under the said Act does not vest the 1st Appellant with a corresponding right to appeal against the decision of the Tribunal in a petition in which it has been sued as a Respondent and a fortiori, its officials, no matter how unpalatable they find the decision of the Tribunal. It is settled law that election petitions are sui generis, and that not all the incidences of a normal or ordinary civil action are applicable to election petitions. See BAMIGBOYE V. SARAKI (2009) All FWLR (Pt. 484)1573 at 1594 -1595; and AWUSE V. ODILI (2004) All FWLR (Pt. 212) 1611 at 1649. The 1999 Constitution by virtue of its Sections relating to the powers of the Tribunal and appeals to this Court (the provisions of which Sections have hereinbefore been reproduced), clearly does not clothe the 1st Appellant and/or its officials with any right of appeal in respect of the decision of the Tribunal that the 3rd Respondent was not validly elected and returned in the election of 14/4/2007. I am aware of the provisions of Section 149(1) and (2) of the Electoral Act, 2006 but I do not see how it can be successfully argued that the provisions in question confer on the 1st Appellant and/or its officials any right of appeal against the decision of the Tribunal nullifying the election and consequently the return of the 3rd Respondent, in the light of the provisions of the Constitution aforementioned and which provisions are superior to those of the Electoral Act, 2006.
This Court has, in several decisions, stated that the 1st Appellant is supposed to play an impartial role in the conduct of elections. It would therefore appear indisputable that where the 1st Appellant who cannot in the first place present an election petition to challenge the validity of the election of a candidate who emerged winner in an election conducted by it, lodges an appeal against the decision of the Tribunal nullifying the election and return of the said candidate as in the instant appeal, the said appeal is glaringly supportive of the appeal lodged by the person elected and whose election was set aside or nullified.
This Court in the case of Balonwu v. Ikpeazu (supra) cited in the Respondents’ Brief of Argument dismissed an appeal lodged by INEC in similar circumstance. It is also my considered view that aside from the Appellants not having the locus standi to lodge the instant appeal, the said appeal is indeed supportive of the appeal of the 3rd Respondent as argued by the Respondents. I cannot but refer to the reliefs being sought by the Appellants in the instant appeal to buttress this view. The first and second grounds of the objection of the Respondents therefore succeed and the instant appeal is liable to be struck out for being incompetent upon the success of the said grounds.
Dwelling on the third of the grounds of the objection, the Respondents said that the instant appeal is incompetent because it is an unwarranted multiplicity of appeals on the same issues. This is because the grounds of appeal and issues for determination said to arise therefrom are the same as those of the 3rd Respondent and unduly supportive of the latter. The position taken by this Court in the case of Balonwu v. Ikpeazu (supra) at page 514 was cited in aid. The Respondents further submitted to the effect that the Appellants being parties to the proceedings without more does not confer on them the right to appeal against the decision of the Tribunal pursuant to Section 243(a) of the 1999 Constitution. This is because, being parties to the proceedings without more does qualify them as persons aggrieved i.e. persons against whom a decision has been pronounced which deprived them of some legal right. The case of Mobil Producing Nigeria Unlimited v. Chief Simeon Monokpo (2003) 18 NWLR (Pt. 852) 346 at 398-399 amongst others was cited in aid.
Dwelling on the Respondents’ third ground of objection, the Appellants submitted to the effect that the Respondents have conveniently forgotten that the grounds of appeal in their own cross-appeal are similar to the grounds raised in the instant appeal and that the sole issue for determination raised in the said cross-appeal shares close affinity with issues 1 and 2 formulated in the instant appeal. That in the circumstances the 3rd Respondent might as well accuse the Appellants of litigating to favour the 1st Respondent. The Appellants submitted that the provision of Section 243(a) of the 1999 Constitution is inapplicable in the instant appeal as they are exercising their right of appeal under Section 246(1) of the Constitution. They further submitted that the provisions of the two sections cannot be construed as the same by any stretch of imagination. The Appellants said that the pronouncement in the case of Ngige v. Obi (supra) relied upon by the Respondents is an obiter dictum by Omokri, JCA (of blessed memory) as none of the issues dealt with in the appeal, involved the question as to the constitutional right of the 1st Appellant to appeal.
The Appellants would appear not to dispute the correctness of the submission of the Respondents that both the grounds of appeal and issues for determination said to arise therefrom in the instant appeal, are the same with those of the 3rd Respondent, having regard to their response as highlighted above. The situation therefore glaringly shows that the instant appeal is indeed unduly supportive of the appeal of the 3rd Respondent. This Court has undoubtedly and in strong terms too deprecated the filing of an appeal supportive of that filed by a party whose return has not been upheld by an Election Tribunal by INEC. This is in the light of the neutrality expected of INEC in election cases. In this regard I find the cases of Balonwu v. Ikpeazu; Ngige v. Obi and Idris v. ANPP all cited in the Respondents’ Brief of Argument most relevant. Accordingly, I have no difficulty in agreeing with the Respondents that the instant appeal lodged by the 1st Appellant and its officials being unduly supportive of the appeal filed by the 3rd Respondent is liable to be struck out even if the 1st Appellant, and a fortiori, its officials, have a right of appeal against the judgment of the Tribunal (which is not conceded).
Dwelling on the fourth ground of the objection, the Respondents submitted that the instant appeal is incompetent, because the Appellants failed to identify the ground or grounds of appeal from which each of the issues for determination was/were distilled. The Respondents submitted that the settled position of the law is that issues for determination are distilled from the grounds of appeal and that where there are more than one issue, it is the duty of an appellant to indicate the grounds of appeal from which issues are distilled. That the court is to strike out the brief of argument and ultimately the appeal; where an appellant fails to do this. The Respondents said that the Appellants filed 12 grounds of appeal and formulated five issues for the determination of the appeal without showing how they arrived at the issues.
Dwelling on the fourth ground of the objection, the Appellants submitted that there is no law, procedural or adjectival that requires them to identify the grounds of appeal from which each issue for determination was distilled. The Appellants said that they filed 12 grounds of appeal and distilled 5 Issues.
I cannot but say that the response of the Appellants to the ground of objection under consideration is not only misconceived, but rather arrogant.
Appellants have been consistently admonished by the appellate courts to always marry the Issues formulated for the determination of the appeal with their grounds of appeal. See TAHIR V. KAPITAL INSURANCE CO. LTD (2007) All FWLR (Pt. 370) 1482 at 1495; and EZEJA V. THE STATE (2006) All FWLR (Pt. 309) 1535 at 1559. I am of the considered view that the need to marry Issues formulated for the determination of an appeal to the grounds of appeal becomes more compelling when an Issue is formulated to cover more than one ground of appeal. Failure or neglect to marry or denote the ground or grounds of appeal from which each Issue is distilled, suggests that the ground or grounds of appeal which is/are not related to an Issue or from which no Issue is distilled or derived, is deemed abandoned and would be struck out. Till date, appellate courts have also been consistent in their decisions highlighting the importance of this requirement. See NICO OLIVER V. DANGOTE INDUSTRIES LTD [2010] All FWLR (Pt.506) 1858 at 1873.
It would therefore appear clear that the failure of the Appellants to marry the five Issues formulated for the determination of the instant with the grounds of appeal, cannot result in the dismissal of the appeal, but in the striking out of the grounds of appeal in respect of which no Issue has been formulated. The Respondents never specified the grounds of appeal that are not covered by the five Issues formulated by the Appellants. It is definitely for the Respondents to do this, and it is only if they show that none of the five Issues formulated by the Appellants, is derivable from any of the grounds of appeal that this can result in the striking out of all the grounds of appeal on the ground that they have been abandoned as no Issue has been distilled from them and consequently the striking out of the appeal. However, the Respondents failed in that duty.
In the light of the above, the fourth ground of objection of the Respondents fails and it is hereby overruled.
Dwelling on the fifth ground of the objection, the Respondents said that the Appellants incorporated in their Brief of Argument issues not covered by any of the grounds of appeal and that they did this without first obtaining the leave of the Court. The Issues in question according to the Respondents are (1) whether or not the agents of the Petitioners who were called as witnesses are polling agents; (2) the use of voters cards and voters register as the only way of determining that an election held and (3) whether or not the Petitioners pleaded similarity of writings. The Respondents said that out of the three issues only the first one was canvassed by the Appellants at the Tribunal and that this was even at the final address stage. The Respondents said that the Appellants without first obtaining the leave of Court incorporated and argued in their Brief of Argument the remaining two Issues which were never included the grounds of appeal. It is the submission of the Respondents that the aforementioned issues incorporated and argued in the Appellants’ Brief of Argument in the circumstances are incompetent and this has invalidated the said Brief of Argument. The Respondents stated the settled position of the law to be that where an issue not covered by any ground of appeal is argued in the brief of argument together with those covered by competent grounds of appeal, it is not the duty of the court to extract the arguments in respect of the valid grounds from the incompetent ones. That in such a situation the court will rather discountenance the argument in its entirety. The cases of Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 165 and Korede v. Adedokun & Anor (2001) 7 SC (Pt. Ill) 68 at 74 were cited in aid.
Dwelling on the fifth ground of the objection, the Appellants submitted that “all the matters raised were distilled from the grounds and particulars of appeal. That “the Tribunal believed and ascribed probative value to the evidence of Petitioner, who did not work at the polling units. See Ground 7 of the Notice and Grounds of Appeal.”
One would have expected that the Appellants confronted with the ground of objection of the Respondents that Issues not covered by any of the grounds of appeal and in respect of which the leave of this Court should have been first procured before arguing them, (and which Issues were duly and distinctly identified) were argued in the Appellants’ Amended Brief of Argument, would have seen the need to state clearly the grounds of appeal that covered the said Issues. This the Appellants did not do. The Appellants also never contended to the contrary that the Issues in question are not such they require the leave of this Court before they can argue them. Indeed it would appear that the Appellants are labouring under a serious misconception of law when they said in their Amended Reply Brief of Argument that “all the matters raised were distilled from the grounds and particulars of the appeal”. Issues are to be distilled from grounds of appeal and not from particulars of the ground(s) of appeal. This is because particulars of a ground of appeal cannot be used to expand the ambit and scope of the principal complaint in the ground of appeal. See KALU V. ONWUEGBU (2008) All FWLR (Pt. 435) 1713 at 1726. The purpose of a ground of appeal is to isolate and actuate for attack the basis of reasoning of the decision challenged. Thus a ground of appeal must be based on correct factual premises by relating to what really occurred in the lower court. See AMORI V. IYANDA (2008) All FWLR Pt. 416 1864 at 1881.
The Appellants have not denied arguing in their Amended Brief of Argument the three Issues set out in the submissions of the Respondents highlighted above. The Appellants have also failed to identify the actual ground or grounds of appeal from which the said Issues flow or arise. It would appear that the Appellants obliquely referred to ground 7 of their grounds of appeal as covering the three Issues in question. This submission clearly cannot avail the Appellants given the settled position of the law that not more than one Issue can be distilled from a ground of appeal. See DUWIN PHARMACEUTICAL AND CHEMICAL CO. LTD V. BENEKS PHARMACEUTICAL AND COSMETICS LTD [2008] All FWLR Pt.414 1420; and NWAIGWE V. OKEKE (2008) All FWLR (Pt. 431) 843. The submissions of the Respondents that the Appellants in their Amended Brief of Argument have argued the three Issues identified by them (i.e. Respondents) and which grounds are not covered by any of the grounds of appeal; and that the Appellants required to have first obtained the leave of this Court before arguing the said Issues in their Amended Brief of Argument, have not been debunked by the Appellants.
The settled position of the law is indeed as stated by the Respondents in their Brief of Argument and it is that it is not the duty of the court to sift arguments in respect of Issues covered by competent grounds of appeal where such Issues are argued with Issues not covered by any of the grounds of appeal in a brief of argument; that in such a situation, the court would rather discountenance the argument in its entirety. This being the position of the law and that the Appellants having undoubtedly argued Issues covered by their grounds of appeal and those not so covered together in their Amended Brief of Argument, it follows that it is only Issues under which the Appellants have done this, that are liable to be discountenanced. The whole of the Appellants’ Amended Brief of Argument cannot properly be discountenanced unless the three Issues identified by the Respondents were argued throughout the length and breadth of the said brief and the Respondents have not shown this to be the case. See the cases of NGIGE V. OBI (supra) cited by the Respondents, as well as BOB V. AKPAN [2010] All FWLR (Pt. 501) 896 at 936; and CHRISTABEN GROUP LTD V. ONI (2010) All FWLR (Pt. 504) 1473. Accordingly, the Amended Brief of Argument of the Appellants cannot be discountenanced as urged by the Respondents. Respondents’ fifth ground of objection accordingly fails and is overruled.
Dwelling finally on the sixth ground of the objection, the Respondents said that grounds 2, 3,4 and 5 of the grounds of appeal are only not indicated to be part of the Issues for determination of the appeal formulated by the Appellants but were indeed not argued in the Appellants’ Brief of Argument at all. Stating the law to be that any ground of appeal which does not give rise to an issue for determination is deemed abandoned and should be struck out, the Respondents urged the Court to strike out the said grounds 2, 3, 4 and 5 in question.
Dwelling on the sixth ground of the objection the Appellants submitted that grounds 2, 3 and 4 of the grounds of appeal were not abandoned. That issue 5 of their issues for determination was distilled from grounds 3 and 4 amongst other grounds, while issue 2 was distilled from ground 2 amongst other grounds of appeal.
In the ground of objection under consideration, the Respondents are seeking for the striking out of grounds 2,3,4 and 5 of the Appellants’ grounds of appeal on the ground that no Issues have been formulated from the said grounds. The Appellants in their Amended Reply Brief were contented to avert their mind to only grounds 2, 3 and 4. They said nothing at all about ground 5. It is my considered view that the Appellants by restricting their response to grounds 2, 3 and 4 have thereby conceded that no Issue was indeed distilled from ground 5. The said ground is therefore liable to be struck out on the Appellants’ showing.
Ground 3 of the grounds of appeal read thus: – 29
“GROUND 3
The trial Tribunal was wrong when they held that the 3rd to 14th Respondents did not complain that they had lost any Form EC8A(1) in their custody or alleged that the petitioner forged them.”
While ground 4 reads: –
“GROUND 4
The trial Tribunal was wrong when they ruled that the Manual for Electoral Officers confers no authority to the Electoral Officer to endorse, initial and sign result Forms.”
Issue 5 which the Appellants said was distilled from the above re-produced grounds read: –
“Whether the Honourable tribunal was right to have held that the presumption of correctness and authenticity placed on the results by law was rebutted by the petitioners.”
Sincerely, I simply do not see how it can be said that Issue 5 flows from or is related to the complaints in grounds 3 and 4 of the grounds of appeal as contended by the Appellants. I hold that the said Issue 5 cannot be said to have been distilled or flows from grounds 3 and 4 of the grounds of appeal.
Ground 2 of the grounds of appeal read thus: –
“GROUND 2
The trial Tribunal was wrong when it held thus: –
“It is our view therefore that the respondents (sic) reply raised new issue of facts to which the petitioner ought to admit or make clean breast of or in any other manner react thereto.”
Issue 2 which the Appellants said was distilled from the above quoted ground reads thus: –
“Whether the Honourable tribunal was right to have suo motu raised the issue of inconclusive results and without hearing the parties nullified election.”
Again, I cannot but say that I simply do not see how the Issue said by the Appellants to have been formulated from ground 2 of the grounds of appeal as re-produced above, can properly be said to have been distilled or flows from the said ground given the complaint therein. I hold that Issue 2 does not flow or arise from ground 2 as contended by the Appellants.
Given the findings, above that (i) the Appellants by their showing have conceded that no Issue was distilled from ground 5 of the grounds of appeal; (ii) Issue 5 does not flow or arise from grounds 3 and 4 of the grounds of appeal; and (iii) Issue 2 also does not flow or arise from ground 2 of the grounds of appeal, I am in the circumstance in total agreement with the Respondents that ground 2, 3, 4 and 5 are liable to be struck out as they have no Issue or Issues distilled from them. This is in the light of the settled position of law that where no Issue is distilled from a ground of appeal, such a ground is deemed abandoned and liable to be struck out. See AGBAREH V. MIMRA [2008] All FWLR (Pt. 409) 559; and DAHIRU V. KAMALE [2006] All FWLR (Pt.295) 616.
In conclusion and given the success of each and all of grounds 1, 2 and 3 of the Respondents’ objection and which have successfully challenged the competence of the instant appeal, the said appeal in the circumstances must at this stage be terminated on the ground if its incompetence. There is no need for the Court to go into the merit of an incompetent appeal. The instant appeal is hereby struck out for being incompetent.
APPEAL NO. CA/E/EPT/44/2008
This is an appeal brought by the 1st Respondent – Chief Simeon Ohajianya in PETITION NO. EPT/AN/SAE/47/07 – BARRISTER CELESTINE 0. EJEZIE & ANOR V. CHIEF SIMEON OHAJIANYA & 13 ORS. Chief Simeon Ohajianya’s (hereinafter simply referred to as the “Appellant”) election and return as the winner of the election into the Anambra State House of Assembly for Ihiala 1 Constituency was nullified by the Governorship and Legislative Houses Election Tribunal II, holden at Awka, Anambra State in its judgment delivered on the 25th February, 2008. The Appellant lodged the instant appeal against the judgment of the Tribunal vide a Notice of Appeal dated 13/3/2008 and filed on the same date. The Notice of Appeal contains 19 grounds of appeal. The Appellant later amended the Notice of Appeal by including therein two additional grounds of appeal namely, “GROUND ONE (A)” and “GROUND ONE (B)”. The Amended Notice of Appeal dated 14/5/2009 filed on 18/5/2009 was deemed as properly filed and served by the Order of this Court made on 21/5/2009. It contains a total of 21 grounds of appeal (although not so numbered).
The instant appeal was consolidated for hearing with APPEAL NO: CA/E/EPT/43/2008 brought by INEC and ORS. pursuant to the Order of this Court made on 3/3/2010. This was upon the application dated 24/2/2010 and filed on the same date, brought by the Appellants in the said APPEAL NO: CA/E/EPT/43/2008 for the said Order.
The Petitioners in the Petition in which the Tribunal gave judgment on 25/2/2008 are not only the 1st and 2nd Respondents in the instant appeal but also filed a Cross-Appeal therein. The Notice of Appeal of the 1st and 2nd Respondents as Cross-Appellants is dated 15th March, 2008 and was filed on the same date. The appeal was lodged against that part of the judgment of the Tribunal “wherein the Tribunal failed to declare that the 1st Petitioner scored the majority of votes cast at the election on the ground that there was no conclusive result adduced by the Petitioners.” There are two grounds of appeal in the said Notice.
In compliance with the practice and Rules of this Court, parties to the appeal filed and exchanged Briefs of Argument and which were amended as considered appropriate. The Appellant ended up with an Amended Brief of Argument dated 4/5/2009 and filed on 18/5/2009 and also deemed as properly filed and served on the same date; and “Appellant’s Amended Reply Brief dated 18/6/2009 and filed on 19/6/2009 but deemed as properly filed and served on 22/6/2009. Both Briefs were settled by Arthur Obi-Okafor, SAN. The 1st and 2nd Respondents Amended Brief of Argument in the instant appeal dated 2/6/2009 and filed on 3/6/2009 was settled by J.T.U. Nnodum, SAN; while that of the Brief of Argument of the 3rd Respondent dated 15/6/2009 and filed on 19/6/2009 but deemed as properly filed and served on 22/6/2009 was settled by S.U.S. Mbanaso. The 4th – 15th Respondents in the instant appeal (i.e. INEC and its officials) did not file any Brief of Argument either jointly or individually.
At the hearing of the appeal on 21/4/2010 learned senior counsel for the 1st and 2nd Respondents (hereinafter to be simply referred to as “the Respondents”) having first drawn the attention of the Court to the Notice of Preliminary Objection contained in the said Respondents’ Amended Brief of Argument, argued the preliminary objection set out in the said Notice. For this purpose and in urging the Court to uphold the preliminary objection learned senior counsel adopted and relied on the arguments relating to the same as contained in the Respondents’ Amended Brief of Argument. Learned senior counsel for the Appellant in urging the Court to dismiss the preliminary objection equally adopted and relied on the arguments in relation to the same as contained in the Appellant’s Amended Reply Brief. Thereafter learned counsel for the Appellant also adopted and relied on the arguments in both the Amended Appellant’s Brief of Argument and Appellant’s Amended Reply Brief in urging the Court to allow the appeal. Responding to the appeal proper, learned senior counsel for the Respondents adopted and relied on the said Respondents’ Amended Brief of Argument in urging the Court to dismiss the Appeal. Learned lead counsel for the 3rd Respondent equally adopted and relied on the said Respondent’s Brief of Argument in urging that the two Issues formulated for determination therein be resolved in favour of the Appellant.
In the Amended Appellant’s Brief of Argument, three Issues are formulated for the determination of the appeal. The Issues read thus: –
“1. Was the Court below right in holding that the set of forms EC8A1 (duplicate Forms) tendered by the Petitioners/Respondents was the only believable result in the proceeding thereby rejecting the official results of the Independent National Electoral Commission?
2. Whether the Court below was right when it ordered the inclusion of the results for Uli Wards I and II as part of the results of the election.
3. Was the Court below right when it held that the official result tendered by INEC was not conclusive?”
In their Amended Brief of Argument, the Respondents likewise formulated three Issues for the determination of the appeal from the 21 grounds of appeal of the Appellant. The Issues read thus:-
“a) Whether the tribunal was right in accepting the Petitioners’ set of result forms as the authentic result of the election: Grounds 1, 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, 18, 19 and Additional Grounds One ‘A’ and One ‘B’.
b) Whether the tribunal was right in including the results for Uli Wards I and II as part of the result of the Election: Ground 5.
c) Whether the tribunal was right to have nullified the election on the basis of inconclusiveness of the result: Ground 14.”
The two Issues which the 3rd Respondent formulated for the determination of the appeal in its Brief of Argument are: –
“1. Whether the learned Tribunal was right in nullifying the election of the Appellant.
2. Whether the Court below was right when it ordered the inclusion of the results for Uli Wards I and II as part of the results of the election.”
Like I did in APPEAL NO: CA/E/EPT/43/2008 and also for the reasons stated in the judgment in the said appeal, I will first deal with the preliminary objection in respect of the instant appeal raised in the Amended Brief of Argument of the Respondents and which preliminary objection was duly argued at the hearing of the appeal.
The Respondents at page 5 of their Amended Brief of Argument gave notice to the Appellant that at the hearing of the appeal they shall raise a preliminary objection to the competence of the appeal or a part of the appeal on the following grounds: –
“(a) Grounds 16,17 and 18 of the grounds of appeal, having been abandoned, ought to be struck out.
(b) the two additional grounds of appeal, for which leave of Court to argue was obtained on 21.5.2009, are incompetent being unrelated to the decision of the tribunal.
(c) the two additional grounds of appeal raise a fresh issue on appeal in respect of which no leave was sought and/or obtained;
(d) Appellant’s issue 1 in his amended brief of argument is incompetent having incorporated arguments on an issue arising from incompetent additional grounds of appeal.”
Dwelling on the first ground of objection, the Respondents said that the Appellant made no effort whatsoever to relate his Issues for determination to any of the grounds of appeal in his Amended Brief of Argument. That this is contrary to what he did in this regard in his original Appellant’s Brief of Argument. This notwithstanding, the Respondents submitted that grounds 16, 17 and 18 of the grounds of appeal are not accommodated within any of the three Issues for determination of the appeal formulated in the Appellant’s Amended Brief of Argument. The Respondents urged the Court to strike out grounds 16,17 and 18 of the grounds of appeal given the settled position of the law that grounds of appeal which do not give rise to Issue/Issues for determination are deemed abandoned. The case of Ejira v. Idris [2006] 4 NWLR (Pt. 971) 538, at 590 was cited in aid.
Dwelling on the Respondents’ ground of objection under consideration in the Appellant’s Amended Reply Brief, the Appellant submitted that his Issue 1 is wide enough and indeed covers grounds 1, 2, 3, 4, 6, 7, 8, 9,10, 11,12,13,15, 16,17, 18 and 19 of the original grounds and ground One ‘A’ as well as ground One “B” of the additional grounds. It is the submission of the Appellant that grounds 16, 17 and 18 under attack by the Respondents border on complaints over matters that influenced the Tribunal in holding that the only believable result tendered in the proceedings was the duplicate result of the Respondents. The Appellant stated that the scope of his Issue 1 is clear. That ground 15 deals with the preferability of Forms EC8A1 tendered by the Respondents; ground 16 deals with the Tribunal’s holding that the only believable and genuine results are the ones tendered by the Respondents; and grounds 17 and 18 deal also with matters which influenced the Tribunal in coming to the conclusion that the only believable results were those tendered by the Respondents who were the Petitioners before the said Tribunal. The Appellant further said that grounds 16, 17 and 18 in the Amended Notice of Appeal were argued in the Appellant’s Amended Brief of Argument deemed filed on 21/5/2009 pursuant to the Order of this Court made in his motion on notice dated 14/5/2009 and filed on 18/5/2009. In the premises, the Appellant urged that the first ground of the Respondents’ objection should be discountenanced and dismissed.
It would appear indisputable that by the Respondents’ showing in their Amended Brief of Argument their Issue (a) covers or encompasses or is related to grounds 16,17 and 18 of the Appellant’s grounds of appeal. In this regard see page 4 of the Respondents’ Amended Brief of Argument for their Issue (a) which is said to be derived from grounds 1, 2, 3,4, 6,7, 8, 9,10,11, 12,13,15,16,17,18,19 and additional grounds “One A” and “One B” of the grounds of appeal. Issue (a) formulated by the Respondents reads thus: –
“a) Whether the tribunal was right in accepting the petitioners’ set of result forms as the authentic result of the election.”
Issue 1 formulated for the determination of the appeal in the Appellant’s Amended Brief of Argument and which the Respondents have submitted as not covering grounds 16,17 and 18 of the grounds of appeal reads thus: –
“1 Was the Court below right in holding that the set of forms EC8A1 (duplicate Forms) tendered by the Petitioners/Respondents was the only believable result in the proceeding thereby rejecting the official results of the Independent National Electoral Commission?”
I am in no doubt that the complaint in Issue 1(a) formulated by the Respondents and in Issue 1 formulated by the Appellant is the same in purport though the two Issues in question are differently worded or couched.
The Appellant has submitted that his Issue 1 is wide enough and indeed covers grounds 1, 2, 3, 4, 6, 7, 8, 9, 10,11, 12,13, 15, 16, 17, 18 and 19 of the original grounds and ground One ‘A’ as well as ground One “B” of the additional grounds. These are the same grounds from which the Respondents distilled their Issue (a).
It is my considered view that the Respondents’ first ground of objection that the Appellant did not distil any Issue from grounds 16, 17 and 18 and submissions in support of the same, are tenuous when the said Respondents successfully distilled their Issue (a) from the grounds of appeal that included grounds 16, 17 and 18 and which Issue actuates the same complaint which Issue 1 formulated by the Appellant (from grounds of appeal which included the same grounds 16,17 and 18) actuates.
The submission of the Appellant to the effect that Issue 1 formulated in the Appellant’s Amended Brief of Argument is wide enough and indeed encompasses grounds 16, 17 and 18 of the grounds of appeal is unassailable. In the circumstances, the first ground of the Respondents’ objection fails. The same is overruled.
The second and third grounds of objection of the Respondents will be treated together as they are related or interwoven. The second ground of objection of the Respondents raises the issue of the incompetence of the two additional grounds of appeal which the Appellant got the leave of this Court to file and argue on 21/5/2009. The Respondents said that the two grounds complain of the error made by the Tribunal when it preferred the election results tendered by them (i.e. Respondents) in the absence of the presiding officers who made or ought to have made the results. It is the submission of the Respondents that the Appellant did not raise the issue of the non-joinder of the presiding officers or incompetence of the petition thereby, or the absence of jurisdiction on the part of the Tribunal to entertain the Petition as a result of the alleged non-joinder of the presiding officers. In other words, that there is no decision of the Tribunal on the issue of non-joinder of the presiding officers, because it did not arise at the trial. The case of Babalola v. The State 4 NWLR (Pt. 115) 264 at 294 was cited in aid. It is the submission of the Respondents that the two additional grounds which now purported to raise the issues of the non-joinder of the presiding officers or the effect of their non-joinder are incompetent as the said issues were not raised at the trial. The Court was urged to strike out the two additional grounds of appeal in question.
Alternatively, the Respondents argued that even if the Appellant could raise the issues (which is not conceded), he is caught by the doctrine of waiver having regard to the provision of Paragraph 49(2) of the First Schedule to the Electoral Act, 2006. The Respondents said to the effect that the contention of the Appellant by the additional grounds of appeal as argued in paragraphs 3.1(o) and 3.1(p) at page 11 of the Appellant’s Amended Brief of Argument can be encapsulated as: (i) that the non-joinder of the Presiding Officers stripped the Court of the jurisdiction to embark on the comparison of the official results with the duplicate results tendered by the Petitioners/Respondents; and (ii) that this Court is being urged to hold that on account of non-joinder of the Presiding Officers, the Petitioners/Respondents have failed to prove that the duplicate results they tendered in the proceedings are more preferable than the official results of INEC also tendered in the proceedings.
It is the submission of the Respondents that it is clear as crystal from the submissions of the Appellant that he seeks to set aside the Petition or proceedings arising therefrom on the ground of absence of jurisdiction (in other words for being a nullity) when he did not raise it within a reasonable time and after he had taken many steps after knowledge of the alleged defect of non-joinder of presiding officers. The Respondents further submitted that the Appellant is estopped from raising the two additional grounds of appeal which raise the issue of non-joinder of presiding officers.
The third ground of objection of the Respondents, attacks the two additional grounds on the basis that no leave of court was sought and obtained to raise the same as they raise fresh issue on appeal and which issue was not raised before the Tribunal. The case of Yusuf v. UBN Ltd [1996] 6 NWLR (Pt. 457) 632 at 644 was cited in aid. It is the submission of the Respondents that the two additional grounds of appeal and the purported issue raised thereby are incompetent and should be struck out as the Appellant failed to obtain the leave of this Court at the filing of the additional grounds of appeal and before arguing the issue of non-joinder of presiding officers.
The Appellant in responding to the second and third grounds of the Respondents’ preliminary objection in his Amended Reply Brief submitted that the grounds of objection in question are belated. In this regard, the Appellant disclosed that the motion on notice dated 14/5/2009 and filed on 18/5/2009 pursuant to which this Court on 21/5/2009 granted him (i.e. Appellant) leave to file and argue the two additional grounds of appeal was not opposed by learned senior counsel for the Respondents. It is the further submission of the Appellant that the Respondents had the opportunity to have opposed the application on the premises that the two additional grounds were incompetent as they raise fresh issues. The case of UBA Plc v. Samba Pet. Co. Ltd (2002) 16 NWLR (Pt. 793) 361 at 387 was cited in aid. It is also the submission of the Appellant that this Court having granted him leave to file and argue the two additional grounds and arguments having been duly proffered in respect of the grounds, the grounds of objection under consideration constituted a challenge to the order of this Court in respect of which there is no application to set aside. That the Order of Court remains valid and subsists until set aside and that without an application to set aside the Order, it did not lie in the mouth of the Respondents to ask for the striking out of the two additional grounds of appeal filed pursuant to the Order of Court. It is also the submission of the Appellant that it is to obviate the kind of anomaly created by the Respondents’ grounds of objection that the said objection ought to have been raised at the earliest opportunity so that the majesty of the Court is not demeaned.
In the alternative, the Appellant said that the two additional grounds of appeal are deeply related if not interwoven in that they both challenge the propriety of the Tribunal to embark on (i) consideration of the alleged litany of defects in the official results in the absence of the presiding officers who made them or ought to have made them; and (ii) comparison of the official results with the Respondents’ duplicate results in the absence of presiding officers with a view to determining which set of results was authentic as between the official results of INEC and the duplicate results of the Respondents. It is the submission of the Appellant that the two additional grounds of appeal do not raise fresh issue in the circumstances. That the Appellant had no way of knowing the approach the Tribunal would take in respect of the evidence led and the conclusion that would be arrived at. That it was in its judgment that the Tribunal adopted the approach of comparing the two sets of results with a view to determining which set was authentic and it turned out on the face of the judgment that the Tribunal arrived at the conclusion that the official results were not authentic. The Appellant said that his complaint by the two additional grounds is that the conclusion in the judgment of the Tribunal cannot be justified given the fact that the presiding officers were not sued in the Petition. It is the submission of the Appellant that all a ground of appeal needs do in order to be competent is to attack the reasoning and conclusion reached in a judgment. That a ground of appeal, is neither incompetent nor does it raise a fresh issue if it attacks a pronouncement made by the court. The case of Westa (Nig) Ltd v. Sokoto State Govt (2001) 4 NWLR (Pt. 703) 304 at 314 was cited in aid. It is the submission of the Appellant that when there is a pronouncement on any point in a judgment and the same formed the basis of the judgment, an aggrieved appellant has the constitutional right to appeal against the said pronouncement and that the two additional grounds of appeal do not raise fresh issues as they only articulate complaints against the judgment of the Tribunal.
It is also the submission of the Appellant that the two additional grounds raise the issue of fair hearing thrown up by the approach and conclusion of the Tribunal inasmuch as the findings and conclusion of the Tribunal did not take cognisance of the fact that presiding officers were not made parties and that this rendered the trial unfair. The Appellant said that he is by the additional grounds not saying that the Petition is incompetent merely because presiding officers were not made parties, but that the decision of the Tribunal cannot be allowed to stand as the presiding officers were not before the Tribunal in order for the findings to be sustainable. It is the submission of the Appellant that the issue of fair hearing being one of jurisdiction can be raised at any stage and argued for the first time on appeal without leave of court. Oyakire v. The State (2006) 15 NWLR (Pt. 1001) 157 at 171; and Galadima v. Tambai (2001) 11 NWLR (Pt. 677) 1 at 15 – 20 amongst others were cited in aid. It is the further submission of the Appellant that the issue of fair hearing which is an attack on the jurisdiction of the Tribunal had even been raised by the two additional grounds of appeal and that the alleged irregularity in not obtaining leave to file the said ground is completely of no moment since the Appellant does not require leave of the Court to raise the issue of jurisdiction as a fresh issue.
The position of the law is clear when it comes to filing additional grounds of appeal. It is that all that is required of an appellant, who has appealed within time and wishes to file additional grounds out of time, is to obtain the leave of this Court to do so. See the decision of this Court in the case Of INTEGRATED DATA SERVICES V. ADEWUMI (2006) All FWLR (Pt. 292)143 at 154 where Augie, JCA; said thus: –
“Once there is a valid appeal however, it can be amended. The purpose of such amendments is usually to ensure that the complaints of the appellant against the decision in question are well laid and ventilated before the court
The respondent in this case submitted that it is not his contention that the applicant should be foreclosed from prosecuting his appeal on the merits, rather it is that the appellant should come properly in compliance with the rules of court for filing additional grounds of appeal. What do the rules say? That an appellant will only require leave of court to file additional grounds of appeal where they are to be filed out of time. Where they are filed within time, such additional grounds will form part of the notice of appeal.”
All that the Rules of this Court in Order 6 Rules 4 and 15; and Order 16 Rule 3(1) require to enable an appellant argue a ground of appeal not contained in the notice of appeal is leave in that regard. Also see the cases of NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD V. SALEM FARMS LTD [2006] All FWLR (Pt. 320) 1174 at 1187; and TAHIR & ANOR V. BANK OF THE NORTH (2007) All FWLR (Pt. 288) 1072 at 1090 – 1091. The Appellant being out of time in filing the two additional grounds of appeal under attack by the Respondents did not just file the same. He brought an application seeking the leave of this Court to file and argue the additional grounds of appeal in question. The application in that regard was not made ex-parte. The application was one on notice and was not opposed by the Respondents. Surely, it was at the stage the Appellant was seeking for the leave of this Court to file and argue the two additional grounds, that the Respondents, if they had any grouse with the said grounds, such as (i) that the grounds do not arise from the decision being appealed against and/or that leave of court is first required to raise the grounds as they throw up fresh issue(s) should have ventilated these. See the case of UBA Plc v. Samba Pet. Co. Ltd (supra) cited by the Appellant and the Ruling of this Court (Abuja Division) in APPEAL NO. CA/A/204C/09 – HON. NDUDI ELUMELU V. FEDERAL REPUBLIC OF NIGERIA (Unreported) delivered on 14th April, 2010.

The non-opposition by the Respondents of the motion brought by the Appellant for leave to file and argue the two additional grounds of appeal now being attacked by them, in the circumstances tantamount to a concession that all was well with the grounds. The Respondents cannot be allowed to approbate and reprobate and this would appear to be what they are now doing by the grounds of their objection now challenging the competence of the two additional grounds of appeal. Suffice it to say that this Court having made an Order granting the Appellant leave to file and argue the two additional grounds of appeal upon his motion in that regard, and which the Respondents did not oppose, the same Respondents cannot now upon the grounds of their objection under consideration expect this Court to make a contrary finding in respect of the competence or otherwise of the said grounds of appeal. See BOB V. AKPAN (supra) at 940.
It is not in doubt from the submissions of both the Respondents and the Appellant highlighted above in respect of second and third grounds of the objection of the Respondents, that the additional grounds under attack raise the issue of jurisdiction. The Respondents have however argued to the effect that as the issue of jurisdiction raised by the additional grounds of appeal does not arise from the judgment of the Tribunal, the Appellant requires the leave of this Court to now raise the same. This is because it is a fresh issue.
May I, straightaway say, that I am not in agreement with the Respondents in respect of this submission; and in this regard I cannot but refer to what I said in the case of BOB V. AKPAN (supra) at pages 941 – 942 when confronted with a similar submission:-
It has been argued by the 1st Plaintiff that the issue of jurisdiction raised by 3rd and 4th Respondents does not arise from the judgment appealed against and that leave of this Court ought to have been first sought and obtained before raising the said issue. The current judicial trend is that leave of the appellate court need not be sought and obtained before the issue of jurisdiction is raised on appeal. In this regard see the decision of the Supreme Court in each of the following:
M/V Gongola Hope v. Smurfit Cases Nig. Ltd (2007) All FWLR (Pt. 388) 1005 at 1018; Benjamin Oyakhire v. State (2007) All FWLR (Pt. 344) 1 at 10; Elugbe v. Omohkhafe (2005) All FWLR (Pt. 243) 629; as well as the decisions of this court in Hinterland Resources Ltd v. Fixity Investment Ltd (2007) All FWLR (Pt. 355) 487 at 500; and Minister of Works and Housing v. Shittu (2008) All FWLR (Pt. 401) 847 at 863.
Also, the law is not that an issue of jurisdiction cannot be raised unless it arises from the judgment appealed against. If this were so, then it would be virtually impossible to raise the issue of jurisdiction on appeal once a court neglects or refuses to avert its mind to it in its judgment, even if raised at trial. The correct position of the law in my respectful view, is as stated by my learned brother, Ba’aba, JCA, in the case of Hinterland Resources Ltd v. Fixity Investment Ltd. In this regard, His Lordship, applying the case of Dagari of Dere v. Dagaci of Ebwa (2001) 7 NWLR (Pt. 712) 365, said to the effect that the issue of jurisdiction cannot be raised in a vacuum and that there must be materials in the proceedings to sustain it.”
The two additional grounds of appeal in my considered view simply rely on the reasoning findings/conclusions reached by the Tribunal with regard to the evidence before the Tribunal for their sustenance. Given the portion of the judgment in the BOB v. AKPAN case quoted above, and the view expressed about the additional grounds of appeal under attack, I am of the settled view that the Appellant, (as argued in the Appellant’s Amended Reply Brief) actually does not require leave of this Court to raise the issue of jurisdiction thrown up by the said grounds and that the issue of jurisdiction raised in relation to the decision of the Tribunal being appealed against, cannot be denied him on the basis of the provision of Paragraph 49(2) of the First Schedule to the Electoral Act, 2006.
In the light of all that has been said before now, the second and third grounds of the Respondents’ objection fail and are accordingly overruled.
The fourth ground of objection of the Respondents is that Issue 1 in the Appellant’s Amended Brief of Argument is incompetent having incorporated arguments on an issue arising from the incompetent additional grounds of appeal. The Respondents identified the arguments in respect of the non joinder of presiding officers and effect of the non-joinder as running from paragraph 3.1 to 3.1(q) at pages 6 – 11 of the Appellant’s Amended Brief of Argument. The Respondents further said that as the arguments in question preceded the remaining arguments made under Issue 1, and which relate to other grounds of appeal, Issue 1 in the circumstances has become tainted by the two additional grounds of appeal and the fresh issue arising therefrom and is therefore incompetent and liable to be struck out. The cases of Kadzi Int’l Ltd v. Kano Tannery Co. Ltd [2004] 4 NWLR (Pt. 864) 545 at 563; and Korede v. Adedokun (supra) were cited in aid. It is the submission of the Respondents that Issue 1 is not only incompetent but that other grounds of appeal argued under the said Issue, namely grounds 1, 2, 3,4, 6, 7, 8, 9,10, 11,12,13,15 and 19 are consequently incompetent. The Court was urged to strike out Issue 1 and all the affected grounds of appeal.
Dwelling on the Respondents’ fourth ground of objection, the Appellant submitted that the ground must necessarily fail if the Court agrees that he does not require leave to raise the issue of jurisdiction as a fresh issue. In responding to the submission of the Respondents that the issue of jurisdiction was being raised belatedly and relying in this regard on the provision of Paragraph 49(2) of the First Schedule to the Electoral Act, 2006, the Appellant said that the instant appeal is not against an application to set aside the Petition but against a final decision of the Tribunal. Again the Appellant submitted that he is not challenging the propriety of the Petition for the non-joinder of presiding officers; that by the nature of his complaint the stage at which Paragraph 49(2) of the First Schedule to the Electoral Act would have been applicable had been passed. That the instant attack is on the decision of the Tribunal; and that the relevant statute which regulates the situation at hand is the 1999 Constitution – Sections 240 and 264(2) thereof.
That the provisions of the Sections give him the right to appeal against the decision, findings and conclusion reached in a judgment and that the constitutional right in this regard cannot be easily taken away by Paragraph 49(2) of the First Schedule to the Electoral Act, 2006.
The fourth ground of objection of the Respondents would glaringly appear not to require any elaborate consideration, given the failure of the second and third grounds. This is because the alleged issue which the Respondents submitted has rendered Issue 1 formulated and argued in the Appellant’s Amended Brief of Argument incompetent, is the issue arising from the two additional grounds of appeal and which I have hereinbefore found to be competent grounds of appeal. In the circumstances the fourth ground of the Respondents’ objection fails and is overruled.
Given the failure of all the grounds of objection of the Respondents, I accordingly find the preliminary objection argued in the Respondents’ Amended Brief of Argument as lacking in merit. The preliminary objection is hereby dismissed.
I will now embark upon the consideration of the appeal proper on the merit. For this purpose, the appeal will be determined upon the Issues formulated by the Appellant as the said Issues clearly encompass the Issues formulated by both the Respondents and the 3rd Respondent respectively.
ISSUE 1
“Was the Court below right in holding that the set of forms EC8A1 (duplicate Forms) tendered by the Petitioners/Respondents was the only believable result in the proceedings thereby rejecting the official results of the Independent National Electoral Commission?”
The Appellant submitted that the settled position of the law is that a petitioner who seeks to impugn the conduct of an election by an officer of the electoral body is required to join the presiding officer concerned as a party.
That in the instant petition, an allegation has been made that the units results tendered as official results of INEC are not genuine. That presiding officers are supposed to make results at the unit level but they were not made parties in the proceedings. That the petitioners have thereby not afforded the presiding officers the opportunity to explain themselves as regards the results generated from the polling units or the results that ought to have been generated from the said polling units. It was stressed that the duplicate results relied upon by the Respondents ought to have been made by presiding officers. It is the submission of the Appellant that the presence of the presiding officers cannot be dispensed with in the search for the truth in respect of the issue, as to which set of results forms (whether duplicate or those of INEC) should be preferred or believed, that arose in the instant petition. This is against the backdrop of the complaint of the Respondents that the credible results are the ones contained in the duplicate results allegedly issued to their agents and which complaint tantamount to an indictment of the results produced by INEC as not representing the results generated at the election. The case of Green v. Green (1987) 2 NSCC 1115 was cited in aid of the submission that the presiding officers are necessary parties in whose absence the matter could not be effectually and completely decided. Also, the cases of Olafemi & Ors v. Ayo & Ors – (APPEAL NO: CA/A/281/07 delivered on 28/2/2008) and Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416 at 468 – 469 were cited in aid of the submission that a petitioner who seeks to impugn the conduct of an election by an officer of the electoral body is required to join the officer concerned as a party. The Appellant said that where a party chooses to challenge the official results of an election, he is invariably challenging the conduct of the election as the official results, after all, represent the outcome of the election and that in the absence of the officer who conducted the election as a party, his evidence which may be an admission is not receivable. That it is not sufficient to call the officer concerned as a witness since a witness is not synonymous with a party. The Appellant therefore submitted that it was not enough for the Respondents to have called some people to testify as presiding officers. In effect the Appellant said that the evidence of PW4 – PW7 do not have any probative value and ought not to have been relied upon by the Tribunal. The Appellant submitted that the position of law relating to the joinder of presiding officers is the same even where they are not mentioned by name as having committed any malpractice or irregularity. That it suffices if the allegation centres around the conduct or the responsibility which they ought to have discharged in the election and the case of Biyu v. Ibrahim (2006) 8 NWLR (Pt. 981) 2 at 40 – 41 was cited in aid; while the unreported decision of this Court in APPEAL NO.CA/E/EPT/73/2008 – Balonwu v. Emordi & Ors delivered on 10/2/2009 was cited on the effect of the non-joinder of presiding officers in a petition. It is the submission of the Appellant that the Tribunal ought to have declined the jurisdiction to compare the authenticity of the official INEC results in the absence of the presiding officers who made the base results. It is the further submission of the Appellant that the Tribunal by embarking on the consideration of the genuineness and authenticity of the official results made by, or which ought to have been made by the presiding officers in their absence infringed on their right to fair hearing as preserved by Section 36(1) of the 1999 Constitution. The Court was urged to hold that the Respondents failed to prove that the duplicate results they tendered in the proceedings are more preferable than the official results of INEC also tendered in the proceedings, on account of the non-joinder of the presiding officers.
Still dwelling on Issue 1, the Appellant said to the effect that there was the presumption of correctness in respect of the result of an election declared by INEC and cited the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 193 in aid. The official results tendered by INEC before the Tribunal were stated to be Forms EC8A(1) marked as Exhibits R4 – R85; Forms EC8B(1) marked as Exhibits R86 – R91; Form EC8C(1) marked as Exhibit R92; and Form EC8E(1) marked as Exhibit R93. Those tendered by the Respondents were stated to be duplicate results Forms EC8A(1) marked as Exhibits A10, B, and B1 – B74; certified copies of the results of the election marked as Exhibits E and E1 – E80. It is the submission of the Appellant that the onus was on the Respondents to prove that the official results tendered by them (i.e. Respondents) and those tendered by INEC were incorrect given the conflict in the said results. That it was in the discharge of the weighty burden that the Respondents tendered Exhibits A10, B, and B1 – B74. The Appellant cited the case of Buhari v. Obasanjo (supra) at page 316 on the nature of evidence to be led in order to successfully challenge the official scores released by INEC in an election and submitted that the Exhibits tendered by the Respondents fell short of this. The reasons for this were extensively presented in the Appellant’s Amended Brief of Argument but they can be highlighted as (i) that the duplicate results sheets tendered by the Respondents (with the exception of Exhibit A10 tendered by PW9) were initially tendered for identification and that after their admission in evidence, they were not subsequently confirmed by those to whom they were allegedly directly issued; (ii) that the results tendered by the Respondents did not constitute the best evidence required to challenge the results released by INEC. That the best evidence in this regard would have been the alleged duplicate results tendered by polling agents and/or INEC officials who ought to have been at the units where the results were made and thereby making them available for cross-examination. The cases of Buhari v. INEC 36 NSCQR 475 at 516; and Ezemba v. Ibeneme & Anor (2004) 14 NWLR (Pt.894) 617 as well as the decision of the Tribunal delivered on 11/3/2008 in PETITION NO: EPT/AN/NAE/HR/37/07 were cited in aid. Also cited is the case of Adike v. Obiareri (2002) 4 NWLR (Pt. 758) 537 at 573 – 573 on the evidential value of documents tendered for identification. Stressing that he is attacking the duplicate results tendered by the Respondents, on ground that they are documentary hearsay, the Appellant submitted to the effect that the only legally admissible set of results of the election that was before the Tribunal was the official results of INEC. That the results tendered by the Respondents lacked probative value as inadmissible documentary evidence and they were as good as having not been tendered before the Tribunal. That the Tribunal had no duty cognizing same, talk less of using it to hold that the official results of INEC duly tendered in evidence is not believable. That in the light of the position of the evidence before the Tribunal, the issue of preferring one set of results to the other did not arise; but that the only issue before the Tribunal was whether the official results of INEC tendered in the proceedings were correct and authentic. It was the submission of the Appellant in the main that there was no evidence before the Tribunal that impugned the authenticity of the results tendered by INEC. An extensive review and evaluation of the evidence of witnesses was undertaken by the Appellant to bring out the point. Dwelling on their Issue 1 and also responding to the submissions of the Appellant the Respondents said that their major complaint in the petition is that the results of the election emanating from the polling units were not properly added up at the collation centres. That there was no allegation of significant misconduct in relation to the election at the polling units and as such they had no grouse against the presiding officers and were under no obligation to join them as respondents in the petition. The cases of INEC v. Ray [2004] 14 NWLR (Pt. 892) 92 at 138; and Ngige v. Obi [2006] 14 NWLR (Pt. 999) 1 at 149 were cited in aid. Assuming (without so conceding) that the challenge of the results declared by INEC amounted to a complaint against the presiding officers, the Respondents submitted that the non-joinder of the said presiding officers did not invalidate the petition as the presiding officers were shown in the petition to have acted as agents of INEC. Again stating that their case is that the results declared by the presiding officers at the polling units were not the ones used by the returning officers to declare the result of the election and which allegation the Tribunal upheld, the Respondents posed the question as to what right or interest of the presiding officers that was affected adversely by the decision of the Tribunal that the results tendered by them (i.e. Respondents) were the ones prepared by the said officers? The Respondents said to the effect that no right or interest of the presiding officers was adversely affected. Stating to the effect that the cases relied upon by the Appellant to buttress the submissions that the presiding officers are necessary parties in the petition are not relevant in the light of the petition’s peculiar facts, the Respondents submitted that the Appellant has woefully failed to substantiate the contention that (i) the presiding officers ought to have been joined as respondents in the petition; and (ii) their non-joinder occasioned a miscarriage of justice or robbed the Tribunal of the jurisdiction to determine the petition.
Dwelling on the submissions of the Appellant relating to the admissibility and nature of the results tendered by the Respondents, the Respondents said that the pronouncement of Akintan, JSC; in the case of Buhari v. Obasanjo (supra) relied on is obiter and should not be regarded as binding on lower courts. The Respondents not only said to the effect that the case was irrelevant as it did not take account of the extant Election Tribunal and Court Practice Directions, 2007; but also that the Practice Directions disabled them to conduct their case in the manner they had set out to do by calling 102 witnesses (whose written statements on oath were frontloaded) and that it would be a travesty of justice to deny the documents they tendered probative value on the ground of not calling all their makers when their right to call a particular number of witnesses had been restricted. The Respondents urged that the provision of Section 91(2) of the Evidence Act be applied to the documents in respect of which they did not call the makers. The Respondents stated that there is a world of difference between evidence which is legally inadmissible and one that is admissible under certain conditions and cited the case of IBWA Ltd v. Imano Nig. Ltd (2001) 3 SC 182 at 194 – 195 in aid.
They said that their pieces of documentary evidence were admitted without objection before the Tribunal. In the light of this, the Respondents urged the Court to hold that their documents or results sheets were properly admitted and acted upon by the Tribunal and that the heavy weather made by the Appellant on their alleged inadmissibility should be disregarded as a side wind and discountenanced.
Dwelling on the evidence which they adduced at the Tribunal as well as that of the Appellant and INEC, the Respondents after an analysis of the testimonies of witnesses submitted to the effect that the Tribunal was correct or justified in accepting their results and rejecting the Appellant’s and INEC’s results. Dwelling on the standard of proof required in the petition, the Respondents submitted that the standard of proof was one of proof on the balance of probability and not one of proof beyond reasonable doubt. That the Tribunal appreciated this much and except in one instance (subject of the cross-appeal) the Tribunal placed the evidence of the parties on an imaginary scale, and came to the right decision in preferring their case to that of their adversaries.
Assuming (without so conceding) that the standard of proof required in the petition is one of proof beyond reasonable doubt, the Respondents submitted that they have met that standard of proof by tendering all the Forms EC8A1 given to their agents on the day of the election and by calling PWS 4, 5, 6 and 7 who were presiding officers at the election as witnesses. That these witnesses testified to the effect that the Forms EC8A1 tendered by their adversaries and alleged to have been made by them (i.e. witnesses) were not the ones they made. That it was the ones tendered by the Respondents that they made. The evidence of these witnesses, the Respondents said, was not contradicted nor their credibility impeached under cross-examination.
The 3rd Respondent under its Issue 1, in the main said that the duplicate results on which the Tribunal acted amounted to documentary hearsay and cannot and should not have formed the basis for rejecting the official results of the election, a fortiori, nullifying the election of the Appellant. The case of Olalomi Industries Ltd v. NIDB (2002) 17 NWLR 58 at 84 – 85 was cited in aid. It is the further submission of the 3rd Respondent that there was no basis for the Tribunal to start comparing the duplicate results with the official results the bulk of which had no probative value and as such worthless.
ISSUE TWO
“Whether the Court below was right when it ordered the inclusion of the results for Uli Wards I and II as part of the results of the election.”
Dwelling on this Issue, the Appellant said that the onus was on the Respondents to prove that the official result of the election is not correct. The Appellant asked the question as to what evidence the Respondents led to disprove the correctness of the result of the election as declared by INEC.
The Appellant said that the Respondents tendered the disputed results of Uli Wards I and II as Exhibits B15 – B46 and that the Exhibits formed part of the composite booths results tendered by the Respondents and which results amounted to documentary hearsay. It is the submission of the Appellant that the Tribunal ought to have held that the allegation of the non-inclusion of the results for Uli Wards I and II not made out as the Respondents did not adduce any credible evidence in respect of the same. The Appellant made the point that the Tribunal ought not to have relied on Exhibit R180 – “Reply of the 2nd – 22nd Respondents in Petition No: EPT/AN/SAE/55/2007 ” which was a suggestion made by counsel for 22 Respondents and not a previous statement of the Electoral Officer within the ambit of Section 199 of the Evidence Act to hold that the Electoral Officer had not justified the non inclusion of the results of the election in the Wards in question. The Appellant said that this was especially so as the purported result in respect of the Wards tendered by the Respondents was documentary hearsay.
Dwelling on this Issue, the Respondents stated that their case on the pleading is that there was election in Uli Wards I and II and that the exclusion of the votes polled by the candidates in the said Wards by INEC was unjustified. It is the submission of the Respondents that they proved their case in this regard by tendering Exhibits B15 – B46. They further said that they relied on the decision of this Court in Kingibe v. Maina (2004) FWLR (Pt.191) 1555 at 1589 to submit that a petitioner who tenders Form EC8A1 in the proceedings has given all the relevant evidence which is discoverable from the form. That in addition they adduced oral evidence through PW3 as well  as PW8.
ISSUE THREE
“Was the Court below right when it held that the official result tendered by INEC was not conclusive?”
Dwelling on this Issue, the Appellant made the point that the Tribunal did not confine itself to the issues joined and canvassed by the parties in the petition. It is the submission that it was wrong of the Tribunal to have done this and the case of Itauma v. Akpa-Ime (2000) 12 NWLR (Pt. 680) 156 at 175 was cited in aid. The Appellant said that the case formulated by the Respondents was that the duplicate results tendered by them were the authentic one as opposed to the official results and that there was no grouse that the result of the election was incomplete. The Appellant further said there was no evidence that the fact that the results of some polling units or wards were not included in the official result of INEC, affected the majority of voters or substantially affected the result of the election.
Dwelling on this Issue, the Respondents, the Respondents who disclosed that their cross-appeal is essential on the same Issue, in the main, are at one with the Appellant that the Tribunal was wrong to have found the results of the election inconclusive. It is however their case that their  reason in this regard is not because their evidence has no probative value as contended by the Appellant but on the contrary that the Tribunal having accepted their results, the only thing left for it to have done was to have declared the 1st Respondent the winner of the election.
In his Amended Appellant’s Reply Brief, the Appellant extensively responded to the submissions of the Respondents. The submissions in this regard, where considered relevant, will be averted to in this judgment.
I will now consider the submissions of the parties in respect of Issue 1.
The Appellant has submitted that the non-joinder of presiding officers in the instant Petition stripped the Tribunal of the jurisdiction to embark on the comparison of the official results with the duplicate results tendered by the Respondents and that the decision/findings of the Tribunal in relation to the duplicate results tendered by the Respondents cannot be sustainable. The Appellant reiterated the same point in his Appellant’s Amended Reply Brief when he said that “the two additional grounds are that the court below should have declined jurisdiction to determine which of the two sets of results (i.e. duplicate results on the one hand and official results on the other hand) are genuine, authentic, believable and/or preferable without the makers of the result forms being made parties.” In this regard the Appellant argued that the presiding officers that made the official results ought to have been made parties in the Petition inasmuch as the Respondents, in challenging the official results of the election, are questioning the conduct at the election of the presiding officers who generated the results at the polling units or who ought to have generated same. It is in response to the issue of jurisdiction raised by the Appellant that the Respondents submitted to the effect that (i) their major complaint in the petition is that the results of the election emanating from the polling units were not properly added up at the collation centres and that there was no allegation of significant misconduct in relation to the election at the polling units and as such they had no grouse against the presiding officers and were under no obligation to join them as respondents in the petition; (ii) even if the challenge to the results declared by INEC amounted to a complaint against the presiding officers, the non-joinder of the presiding officers did not invalidate the petition as the presiding officers were shown in the petition to have acted as agents of INEC and relied on the provision of Section 144(2) of the Electoral Act, 2006 in this regard.
In the Appellant’s Amended Brief, paragraphs 4 and 5 of the Petitioners'(now 1st and 2nd Respondents/Cross-Appellants) Reply to the 3rd – 14th Respondents’ Reply to the Petition (i.e. 3rd – 14th Respondents/Cross- Respondents) were re-produced to debunk the claim of the Respondents that no significant complaint of misconduct was made against the presiding officers. I have read the paragraphs in question and having regard to the complaints therein, I cannot but agree with the submission of the Appellant that the Respondents cannot be heard to say that they had no significant complaint against the presiding officers. The complaints in the paragraphs are to the effect that none of the Forms EC8A1 (i.e. official results) was filled and signed by the presiding officers; and that the official results did not form part of the results forms that were supplied to the presiding officers. Indeed, a painstaking scrutiny of the Petition shows that complaints are rife therein in relation to presiding officers vis-a-vis results of the election that were collated and/or entered into Forms EC8A1 used at the election and consequently used in declaring the Appellant as the winner of the election. Some of the paragraphs of the Petition where the Respondents made serious complaints against the conduct of presiding officers involved in the election whereat the Appellant was returned as the winner include: –
Paragraph 10
The number of used ballot papers plus the number of unused ballot papers in each polling unit/station should be equal to the total number of ballot papers issued in the said polling unit.
Notice is hereby given to the 3rd – 13th Respondents to produce at the hearing of this petition, the list of the number of ballot papers issued and sent to each presiding officer in each of the polling units/stations in all the six (6) wards in Ihiala 1 constituency where the petitioner challenges the results or scores of the candidates.
Paragraph 12
Your Petitioner avers that the lawful votes cast at the said election were not correctly added up or counted at some ward collating centres while in some wards or polling units where no election was conducted or where ballot boxes were stolen scores were awarded to some candidates with the result that the figures added at the collating stations were either not those actually recorded at the polling station/unit or they were not based upon correct figures of the actual votes lawfully, cast at polling stations.
Paragraph 14
Your Petitioner avers that the lawful votes cast at the said election were not correctly added up or counted at some ward collation station/units and at Local Government collation stations/units and in some of the Polling stations and wards where no election was conducted or votes cast figures were added up with the result that the figures added up to at the collation station/units were either not those actually recorded at the polling station/stations or they were not based upon correct figures of actual votes lawfully, cast at polling stations.
Paragraph 17
Your Petitioner further avers that election did not take place in some polling stations in Ihiala 1 constituency, yet figures of votes cast by voters were entered as scored by the Petitioner and the 1st Respondent and such unlawful votes were wrongly collated and added up for such polling stations/units and wards when in fact voting did not take place and qualified and eligible votes could not cast their votes.
Paragraph 18
Your Petitioner says that the wards where scores were not entered in the above data for each ward are places where election or voting did not take place at the polling station/units or where the result sheet (form EC8A(i)) were not produced at the polling station by the 3rd – 14th Respondents or where the election materials were hijacked by thugs or agents of the 1st Respondent or other election malpractice were committed. Evidence will be led as to what happened in each of the polling station/units and wards.”
In my considered view the Appellant has correctly stated the position of the law to be that a petitioner who seeks to impugn the conduct of an election by an officer of the electoral body is required to join the officer concerned as a party. I am sure that it is in the knowledge of this position of law that the Respondents as Petitioners in the Petition joined the 3rd – 14th Respondents as parties to ventilate their complaint which as stated in their Brief of Argument is that the results of election emanating from polling units were not properly added up at the polling centres.
Now, in relation to presiding officers and in respect of whom I believe that it has sufficiently been demonstrated that serious allegations/complaints were also made in the Petition, the Respondents has submitted that the non joinder of the said presiding officers does not invalidate the Petition as it has been shown that the presiding officers are agents of INEC and as INEC is a party. As earlier stated, reliance was placed on Section 144(2) of the Electoral Act, 2006.
Section 144(2) of the Electoral Act, makes the person whose election is complained of the Respondent. The Section further provides that if a petitioner complains of the conduct of an Electoral Officer, Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person is for the purpose of the Act deemed to be a Respondent and shall be joined in the Petition in his or her official status as a necessary party. The Section however has a proviso to the effect that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder will not on its own operate to void the Petition if the Commission is made a party.
I cannot but say that I do not understand the proviso of Section 144(2) as applying to the official of INEC specifically named or mentioned in the Section. These officers by the Electoral Act, 2006 are recognised as agents by which INEC normally discharges its electoral duty. So to say that it has to be shown that the named officers acted as agents of INEC in the conduct of an election is rather superfluous. It is my considered view that it is the non joinder of an undesignated or unnamed INEC official or any other person whose conduct is complained of in an election and who is shown to have acted as an agent of INEC that the proviso applies. In other words, I am of the firm view that if a petitioner complains of the conduct of an Electoral Officer, a Presiding Officer or a Returning Officer at an election, the petitioner is duty bound to join any of or all the officers as Respondents in the Petition.
This view no doubt is reinforced by the decision of this Court in APPEAL NO. CA/E/EPT/73/2008 – HON. JESSIE BALONWU V. SENATOR JOY EMORDI & 213 OTHERS (Unreported) delivered on 10/2/2009. At page 16 of the judgment Omage, JCA; said thus: –
It is the expressed opinion of my learned brother Obadina, J.C.A that a presiding officer in an election is like a managing director or chief executive of a company. Without his presence an election is faulty.
Speaking of the necessity of joinders (sic) of the Presiding Officer because of the enormous powers conferred on the Presiding officer he cannot be excluded from culpability in an election conducted under the provisions of 2006 Electoral Law. See Kallamu vs. Gurin (2003) 16 NWLR (Pt. 849) 493. See also the observation of the Court of Appeal in Jos. I was in the panel, in Harruna v. Modibo (2004) 16 NWLR (Part 900) p.847 at 537. An election petition is Sui generis. It is neither a civil nor a criminal proceedings any slight default in compliance with the prescribed rules of the Electoral Act will be fatal to the petition. See Awuse v. Odili (2004) 8 NWLR (Part 876) at 509.
Similar slight in complying with a civil or criminal proceedings may have been curable or rectified by amendment in the proceedings. It is not so in an election petition. An election petition must adhere strictly to rules as provided in the Electoral Act, and the body of Law in particular the rules of natural justice of fair hearing which is enshrined in our 1999 Constitution.
It is for the above reasons that I reiterate the provision that “the presiding officer or any other who took part in the conduct of the election, such persons for the purpose of the Act shall be joined in the election petition. See Subsection (144) and 2 of the Electoral Act, 2006 on the requirement of the law when it used the word shall which is mandatory. Therefore, failure to join the Presiding Officers is fatal to the petition. The provision of subsection 2 of the provision notwithstanding.”
At page 18 his Lordship further said thus: –
“The Petitioner has failed for the failure to join and cite presiding officers sub section 2 (sic) of his (sic) provisions of section 144 of the Electoral Act as a respondent. The fact remains that in his failure to join the presiding officer the necessary party was not joined. The presiding officers ought to be joined in the petition if only for them to agree or say that they did not receive electoral papers from the supervisory officers who were taken to court, and deny the accusation of the Appellant witnesses whose evidence before the court can only be hearsay or presumption. In the event the presiding officers were denied their constitutional right of fair hearing. See Section 36 of 1999 Constitution On appeal, there is no need to consider the other issues of the Appellant. The success in those issues is dependent on the propriety and validity of the petition itself on which the appeal is founded.”
May I also say that the proviso to Section 144(2) of the Electoral Act, 2006 has indeed not introduced any radical change to the position of the law when it comes to joinder of necessary parties. All that the proviso does is to save a petition from being declared void due to the mere non-joinder of any official of INEC or any person whose conduct is complained of at an election once it is shown that the official or person acted as an agent of INEC in the election and if INEC is made a party. It does not say that the non-joinder of such a party cannot operate to render a petition void when the controversy in the petition cannot be effectively resolved in the absence of such a person as a party. The law has always been that the mis-joinder or non-joinder of parties shall not defeat an action. That in all causes or matters the court shall deal with the matter in controversy so far as regards the rights and interest of parties actually before it. That is all the proviso in question portends. Where however the rights and interests of the parties before the court cannot be effectively resolved in the absence of some parties against whom complaints are made, then surely the proviso of Section 144(2) cannot save the situation.
The court in such a situation would lack the jurisdiction to resolve the matter in controversy. That is all the complaint of the Appellant in his Issue 1 is about and that is all that the case of Balonwu v. Emordi (supra) has decided to be the position of the law even under the Electoral Act, 2006. True it is, that an aspect of the Respondents’ case in the Petition is that the results emanating from the polling stations/units were not properly added up at the collation centres. However it is also clear from averments in the Petition that it is not the results of the election as declared by INEC that the Respondents claim were not properly added up. They clearly disputed the results of the election as declared by INEC and contended that the genuine results of the election are the duplicates of the results issued to their agents and hence the resolution of the issue by the Tribunal as to “which of the two results tendered by the parties was authenticated by the electoral officer for the purposes (sic) into the Anambra State House of Assembly, Ihiala election of 14/4/07?” The Tribunal in the resolution of the issue concluded that the only believable results were the duplicate results of the Respondents. The Tribunal by this conclusion clearly found the results of the election as compiled by the presiding officers in respect of the election not genuine or believable and this the Tribunal did in the absence of the presiding officers who generated the said results. It is most unclear to me how the Tribunal could have properly resolved the issue of the set of results authenticated by the electoral officer in the election in question and to have decided to believe the set of duplicate results of the election tendered by the Respondents as against the official set of results of the same election tendered by INEC without first determining the genuineness or authenticity of the result allegedly authenticated by the electoral officers. It is certainly clear in law that the presiding officers whose duty it is to compile results at the polling stations/units must be made parties to an election petition when there is a challenge to the results generated by them. This, no doubt, is because they are the only persons that can adequately defend their acts of omission or commission in respect of the results in question. See EKPENYONG V. DUKE (2009) All FWLR (Pt. 470) 755 at 779.
Having regard to the various submissions in the Appellant’s Amended Brief of Argument, and which submissions have been copiously highlighted in this judgment, the Appellant has clearly demonstrated that the Tribunal ought to have declined jurisdiction to embark upon the comparison of the duplicate results tendered by the Respondents and the official results in the absence of the presiding officers that made the polling units results tendered by INEC.
In the light of all I have said before now, I wholly agree with the submissions of the Appellant in this respect. The non-joinder of the presiding officers rendered the Petition presented before the Tribunal as having not been properly constituted. Issues in dispute cannot be resolved in an improperly constituted action. See MOZIE V. MBAMALU [2006] All FWLR (Pt. 341) 1200; and AYORINDE V. ONI [2000] FWLR (Pt. 3) 445.
In the circumstances I am unable to endorse as correct the finding of the Tribunal that the duplicate results tendered by the Respondents are more believable/preferable than the results of the same election issued by INEC and upon which the Appellant was returned. All the other issues relating to the admissibility and/or whether the Tribunal correctly evaluated the two sets of  results require no consideration as there was simply no basis in the first place for the Tribunal to have engaged in delving into the issue of the authenticity of the two sets of results in the absence of presiding officers as parties in the Petition. The Tribunal ought to have simply held that the Petition as constituted was incompetent as the issue of the authenticity of the two sets of results was not resolvable in the absence of the presiding officers as parties therein.
In conclusion Issue 1 must be and is hereby resolved in favour of the Appellant. The resolution of the Issue in favour of the Appellant upon the ground that the non-joinder of the presiding officers rendered the Petition incompetent for the purpose of resolving the issue of the authenticity of the two sets of results tendered in the proceedings in my considered view must without more also result in the resolution of the other two Issues formulated for determination in the appeal by the Appellant in the Appellant’s favour.
Accordingly there is merit in the appeal and the judgment of the Tribunal delivered on 25/2/2008 is hereby set aside. The return of the Appellant remains intact as it has not been successfully challenged and indeed cannot be successfully challenged by the incompetent Petition of the Respondents.
CROSS-APPEAL
As already stated, the 1st and 2nd Respondents in the above appeal and who were the Petitioners before the Tribunal equally appealed against the part of the judgment of the Tribunal “wherein the Tribunal failed to declare that the 1st Petitioner scored the majority of votes cast in the election on the ground that there was no conclusive result adduced by the Petitioners.” The reliefs which the Cross-Appellants seek as set out in their Notice of Appeal are:-
“(1) AN ORDER setting aside the perverse orders of the learned Tribunal and findings on which they are based.
(ii) AN ORDER declaring the 1st Appellant the winner of the Anambra State House of Assembly election for Ihiala 1 Constituency seat held on 14/4/07.
(iii) AN ORDER directing the 3rd and 4th Respondents to withdraw the certificate of return given to the 1st Respondent and issue a certificate of return to the 1st Appellant.”
The Cross-Appellants’ Brief of Argument dated 11/6/2008 and filed on 12/6/2008 as well as Cross-Appellants’ Reply Brief of Argument dated 26/6/2008 and filed on 27/6/2008 were settled J.T.U. Nnodum SAN. The 1st Cross-Respondent’s Brief of Argument is dated 20/6/2008 and filed on 23/6/2008. Arthur Obi-Okafor SAN was one of the learned counsel that settled the Brief. The 3rd – 14th Cross-Respondents’ Brief of Argument dated 11/9/2008 and filed on the same date was settled by C.C. Okaa. The 2nd Respondent – PDP was struck out as a party in the cross-appeal by the Court on 21/5/2009 consequent to the Notice of Withdrawal of the Cross-Appeal dated 7/5/2009 and filed on 13/5/2009 by the Cross-Appellant.
The cross-appeal was heard on 21/4/2010 and learned counsel for the parties respectively adopted and relied on the Briefs of Argument filed on behalf of their clients as their arguments in the appeal.
The Cross-Appellant formulated a lone Issue for the determination of the appeal in his Brief of Argument. The Issue reads thus: –
“Whether the tribunal was in error when it nullified the election instead of declaring the 1st cross-appellant the winner of the election based on credible results.”
The Issue formulated for the determination of the cross-appeal in the Brief of Argument of the 1st Cross-Respondent reads thus: –
“Whether the Tribunal was right in not holding that the Petitioners/Cross-Appellants scored the majority of lawful votes cast in the election.”
The Issue formulated by the 3rd – 14th Respondents read thus: –
“Whether the tribunal was right in holding that the Petitioner/Cross appellant did not make out a claim that the 1st Petitioner scored the majority of lawful votes.”
The law is that a cross-appeal is an independent appeal having a life of its own in the appellate process though it could have some affinity with the main appeal as they criss-cross. There are however instances where a decision in the main appeal affects and in fact disposes of the crux or fulcrum of the cross-appeal. In such situations, it will be merely repetitive and will serve no useful purpose for an appellate court to go over the argument raised by the cross-appellant in his brief of argument. In such a situation, and in order to avoid repetition and superfluity, an appellate court has every power to dismiss the cross-appeal summarily. See UNITY BANK PLC & ANOR V. BOUARI (2008) All FWLR (Pt. 416) 1825 at 1857.
Before now, I have earlier found the main appeal to be meritorious and consequently set aside the judgment of the Tribunal delivered on 25/2/2008. I also found the return of the Appellant to be intact as it has not been successfully challenged by and indeed cannot be successfully challenged by the incompetent Petition of the Respondents.
It is in my view most glaring that it is the very return of the Appellant which I have already found to be intact that the Cross-Appellants seek to reverse or have set aside by the reliefs they seek in the cross-appeal. The Cross-Appellants want the 1st Cross-Appellant declared as the winner of the election. I am in no doubt that the earlier resolution of the three Issues formulated by the Appellant for the determination of the appeal in the Appellant’s favour has effectively disposed of the crux or fulcrum of the cross-appeal.
Accordingly the Court can properly dismiss the said cross-appeal.
The Cross-Appellants’ appeal is hereby dismissed.
In conclusion, the main appeal succeeds, while the cross-appeal is dismissed. I make no order as to costs.

AMIRU SANUSI, J.C.A.: Having read the Judgment of my learned brother Lokulo-Sodipe JCA before now, I am at one with his reasoning and conclusion that the appeal is meritorious while the cross appeal is unmeritorious. I have nothing useful to add. I accordingly allow the main appeal and dismiss the cross applicants’ appeal. No order as to costs.

MOHAMMED L. TSAMIYA. J.C.A.: I have a preview of the lead judgments of my learned brother LOKULO-SODIPE, JCA, that has just been read. I agree entirely with his reasoning and conclusion in each of the three appeals. My learned brother has exhaustively dealt with all the relevant issues in the respective appeals and resolved them. I therefore have nothing more to add. Accordingly:
(1) Appeal No. CA/E/EPT/43/2008 is incompetent and is hereby struck out for being incompetent.
(2) Appeal No. CA/E/EPT/44/2008 is meritorious and allowed.
The judgment of the tribunal in petition NO.
AN/SAE/47/2007 dated 25/2/2008, nullifying the election of the appellant is hereby set aside.
(3) The Cross-Appeal, having been disposed of by the earlier resolution of three issues in favour of the appellant in appeal No. CA/E/EPT44/2008, lacks merit and is hereby dismissed.
I abide by the consequential orders made in the lead judgments including the order as to costs.

Appearances

C.C. Okaa – CA/E/EPT/43For Appellant

AND

J.T.U Nnodum SAN with P.U. Nnodum and O.G. Adindu
Arthur Obi-Okafor SAN with F.I. Aniukwu, and J.O. Nwankiti (Miss) – CA/E/EPT/44/2008.
S.U.S Mbanaso with A.N. Nwuba (Miss), and I.D. Onyemaobi (Mrs.)For Respondent

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