PASCHAL IKENNA EJIOGU v. HON. ALPHONSUS GERALD IRONA & ORS.
(2008)LCN/3046(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of April, 2008
CA/PH/EPT/400/2007 (CON.)
RATIO
ESSENCE OF A REPLY BRIEF
The purpose for which Reply briefs are meant is now well known and that is to answer or respond to new or fresh points raised in the Respondent’s brief. It is not an avenue through or by which an Appellant should canvass or proffer, further or repeat arguments in support of an appeal on the pre of replying on points of law. See Order 17, Rule (5) of the Court of Appeal Rules 2007, POPOOLA V. ADEYEMI (1992) 8 NWLR, (257) 1, ADEBIYI V. SORINMADE (2004) ALL FWLR (239) 933, SHUAIBU V. MAITHODA (1993) 3 NWLR (284) 748. Per MOHAMMED LAWAL GARBA, J.C.A.
ESSENCE OF A NOTICE OF APPEAL
Now, the law is settled and very well known that a competent Notice of Appeal is the foundation and the only process by which the appellate jurisdiction of this court can be invoked. It is the soul and sub stratum of every competent appeal that by law can effectively initiate proceedings in this court. A competent Notice of Appeal is the initiating process in this court and so any material defect therein will be fatal to an appeal and therefore the invocation of the court’s jurisdiction. Such defect would render an appeal incompetent and the court would lack the requisite vires and judicial authority to deal with or entertain it. YUSUF V. ADEWUYI BROTHERS (1991) 7 NWLR (201) 39, ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (2006) ALL FWLR (319) 862, ADELEKAN V. ECU-LINE (supra) also reported in (2006) ALL FWLR (321) 1213. Per MOHAMMED LAWAL GARBA, J.C.A.
Before Their Lordships
SULEIMAN GALADIMAJustice of The Court of Appeal of Nigeria
MUHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHIJustice of The Court of Appeal of Nigeria
Between
PASCHAL IKENNA EJIOGUAppellant(s)
AND
1. HON. ALPHONSUS GERALD IRONA
2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER IMO SATTE
4. THE RETURNING OFFICER FOR THE NATIONAL ASSEMBLY ELECTION FOR OHAJI/EGBEMA/ORU CONSTITUENCY
5. THE ELECTORAL OFFICER OHAJI/EGBEMA L.G.A.
6. THE ELECTORAL OFFICER OGUTA L.G.A.
7. THE ELECTORAL OFFICER, ORU WEST L.G.A.
8. HON. CHIEF LAWRENCE AGBASOGBARespondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the Governorship and Legislative Houses Election Tribunal; Imo State delivered on the 24th August, 2007 in Petition No. EPT/NA/IM/01/2007 in respect of election into the House of Representatives for Ohaji/Egbema/Oguta/Oru West Federal Constituency held on 21st April, 2007.
The Appellant, who was the petitioner at the lower Tribunal and the 1st Respondent were among the candidates at the said election sponsored by their respective political parties, Labour Party (L P) and the People’s Democratic Party (PDP). On the 22nd April, the Returning officer for the constituency, the 4th Respondent herein declared the result of the election as follows:-
(A) Alphonsus Gerald Irona – (1st Resp.)-108,389 votes
(B) Pascal Ikenna Ejiogu (Appellant) – 6,626 votes
(C) Nwauwa Chukwuma Ama – (APGA) 3,815 votes
(D) Dr. Ezeukwu Emmanuel – (AC) 1,979 votes.
The 1st Respondent was therefore returned by the 4th Respondent as duly elected and issued with Independent National, Electoral Commission (INEC) Declaration of Result Form EC8E. Being dissatisfied with the declaration and return of the 1st Respondent as the winner of the said election, the Appellant filed a petition at the lower Tribunal on the following grounds:-
(A) “That the return of the 1st Respondent was void because he was not qualified to contest the election; and
(B) That the 1st Respondent was not duly elected by a majority of lawful votes cast at the election.”
He sought reliefs as follows from the Tribunal:-
A) “A declaration that the return of the 1st Respondent is void having regard to the provision of Section 66 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
B) That the, petitioner be returned as duly elected having scored the majority of lawful votes cast at the election.”
After the service of the Appellant’s Petition on the 2nd – 7th Respondent herein the 3rd Respondent, on the 26th of April, 2007 issued a press release retracting the return of the Peoples Democratic Party (PDP) still remained the party the scored the highest number of votes. Eventually, the election was said by the 2nd – 7th Respondents to have been won by the 8th Respondent herein and return as having been elected.
Not being a party to the Appellant’s petition before the lower Tribunal, the 8th Respondent on his application was joined later as a party and so he filed a reply to the petition on the 6th of July, 2002.
At the pre-trial conference some documents were admitted in evidence by consent and parties agreed that it was not necessary to call oral evidence as the petition could be determined documentary evidence admitted. As a result the parties filed and adopted written addresses in support of their respective positions. In its decision, the lower Tribunal found and held inter alia that:-
(1) “that it was the 1st Respondent and not the 8th Respondent that actually contested the election in question;
(2) that the 1st Respondent was not only unqualified to contest the election but was restrained by a subsisting court order from contesting the said election
(3) that the participation of the 1st Respondent in the election as a candidate was null and void and the votes cast and credited to him were wasted.”
For the above reasons the lower Tribunal annulled the election and ordered fresh election in the constituency since according to the lower Tribunal, there was no evidence that the electorate knew of the disqualification of the 1st Respondent.
In compliance with the practice Directions No. 2 of 2007 issued pursuant to section 149 of the Electoral Act, 2006 briefs of argument were filed in respect of the appeal. The appellant’s brief was filed on the 22nd of October, 2007, the 1st Respondent’s brief on the 1st October, 2007, the 8th Respondent’s brief on the 12th of November, 2007 and the Appellant’s Reply brief on the 12th of November, 2007.
The 2nd – 7th Respondents’ brief of argument dated 6th March, 2008 was deemed filed on the date of hearing the appeal, 10th March, 2008. The briefs were adopted and relied on by learned counsel at the re-hearing of the appeal as their submissions in support of, their respective positions in the appeal; urging us to dismiss the appeal as the case may be.
This appeal had earlier been heard on the 4th of December, 2007 and judgment therein reserved for the 11th of February, 2008.
However in the course of preparing the said judgment, it, was observed that there are other appeals – No. CA/PF/464/07, CA/PH/EPT/476/07 and CA/PH/EPT/478/07 which arose from the same decision in which the parties were the same save for the last one. all the four (4) appeals seeks to overturn the decision of the lower Tribunal, with consent of all the parties, the four (4) appeals were consolidated by order of court on the 11th of February, 2008. The consolidated appeals were on that day adjourned to the 10th of March, 2008 for hearing; thus re-opening this appeal for fresh hearing or re-hearing.
At page 10, paragraph 6.1 of the Appellant’s brief of argument, two (2) issues were raised and submitted for determination in the appeal by learned counsel. They are:-
(i) ”Whether from the available evidence before the Learned Tribunal and having regard to the findings of the Tribunal, the Tribunal was right in failing to void and nullify the election of the 1st Respondent on the ground that he did not score the majority of lawful votes cast at the elections?
(ii) Whether having regard to the totality of evidence before the Learned Tribunal and the law, the Tribunal was right in neglecting the return of the petitioner/Appellant as elected representative of the Ohaji/Egbema/Oguta/Oru West Federal Constituency?”
The 1st and 8th Respondents also submitted two (2) issues each in their respective briefs of argument, which are said to arise for determination, in the appeal. The 1st Respondent’s issues, which appear at page 2 of his brief, are thus: –
1. “Whether the 1st Respondent contested the Election and therefore had the majority of Lawful votes cast.
2. Whether the Tribunal should have awarded the Election to the Petitioner/Appellant having held that the 1st Respondent was disqualified from contesting.”
For the 8th Respondent, the issues are as follows: –
1. Whether having regard to the issues far determination, grounds of the petitions and , available evidence the Tribunal was right in not applying the provision of S. 147 (2) of the Electoral Act 2006.
2. Whether having regard to the evidence available at the trial, the particular circumstances of this case and the current state of the law the Tribunal would have in any way returned the Petitioner as duly elected representative of the Ohaji/Egbema, Oguta, Oru West Federal Constituency.”
Of the three (3) counsels, only the learned counsel for the 1st Respondent had abided by the now diligent practice of identifying and stating in his brief of argument, from which of the grounds of appeal the issues raised by them were distilled or derived. The need for so doing cannot be over emphasized because the law is now elementary that any issue raised in an appeal, which is not shown to have been formulated or distilled from the grounds of appeal contained on the notice of appeal, would be incompetent and liable to be struck out and/or discountenanced. Indicating the grounds from which issues for determination were derived in the brief of argument would ease the -determination of the competence of such issues in an appeal. For instance in the present appeal, the learned counsel for the 1st Respondent had indicated that the issue No. 1 formulated by him was related to or arose from the 1st ground of appeal. The first ground of appeal contained on the Notice of Appeal filed by the Appellant as stated earlier is in the following terms: –
3.1 ERROR IN LAW
The learned Trial Tribunal erred in law when it held that Section 147(2) of the Electoral Act 2006 has no application to the facts and circumstances of the Petitioner’s case and failed to void and nullify the election of the 1st Respondent on the ground that he did not score the majority of lawful votes cast at the election, a decision which is perverse and occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) Void votes are not valid votes in law for the purpose of determining the majority of lawful votes cast at the election.
(b) The 2nd ground of the petitioner’s petition was that the 1st Respondent was not duly elected by the majority of lawful votes cast at the election.
(c) Political parties contest elections through candidates and the votes ascribed to political parties are tied to the candidates.
(d) The Learned tribunal found that the participation of the 1st Respondent at the election was in violation of a subsisting court order and therefore null and void and the votes credited to him wasted.”
Looking at the issue formulated by learned counsel, which in substance asks the question whether the 1st Respondent contested the election in question, along with the above ground, I have no difficulty whatsoever in finding that the said issue did not come from, endure or derive from the ground of appeal. The complaint in the ground is that the lower Tribunal erred in law when it held that the provisions of Section 147(2) of the Electoral Act 2006 did not apply to the Appellant’s case. It is not on whether or not the 1st Respondent contested the election, which issue had been settled by the lower Tribunal and the Appellant is not challenging the decision thereon.
Consequently my view is and I find that the 1st Respondent’s issue does not relate to the 1st ground of appeal or any of the other grounds of appeal. It is for that reason incompetent and struck out. See AJA V. OKORO (1991) 7 NWLR (203) 260, OJE V. BABALOLA (1991) 4 NWLR (1Bs) 267, ONIFADE v. OLAYIWOLA (1990) 21 N.S.C.C. (3) 421, MARK V. EKE (2004) 1 SC (II) 1, GAMU v. HAUSA (2006) ALL FWLR (293) 378.
Now, a calm reading of the other issues raised by all learned counsel in the appeal would reveal that primarily, they have one common question which in my firm opinion would fully and adequately dispose of the appeal. That issue or question is the one raised in terms; of issue 1 by the learned counsel for the 8th Respondent as set out above. For convenience, the issue is thus:-
1. “Whether having regard to the issues for determination, the ground of the petition and available evidence, the Tribunal was right in not applying the provisions of section 147 (2) of the Electoral Act 2006.”
All the three grounds of appeal filed by the Appellants are complaints that the lower Tribunal was wrong in not declaring and returning the Appellant as duly elected as provided in section 147(2) of the Electoral Act, 2006. A determination of the above issue would completely answer the grievance or complaint of the appellant in the appeal.
Since the law permits and allows the court to reformulate and consider issues in order to determine the real and crucial complaint or dispute in an appeal and learned counsel have fully addressed the above issue in their respective briefs of argument, I intend to consider and streamline their submissions in the appeal along the issue rephrased thus; –
“Whether the Tribunal was right in holding that the provisions of Section 147(2) of the Electoral Act 2006 are not applicable to the case of the Appellant/petitioner for him to be returned as duly elected”
See NWOKORO V. NUMA (1990) 3 NWLR (136) 22, BANKOLE V. PELU (1991) 8 NWLR (211) 523, SHA V. KIOAM (2000) FWLR (11) 1798 @ 1815 & 1825-6
APPELLANT’S SUBMISSIONS:
After making reference and setting out Sections 145 (1) & 147(2) OF the Electoral Act, 2006 as well as paragraphs 5, 13 & 14 of his petition before the lower Tribunal and the findings thereon, learned counsel had submitted that having found that the votes credited to the 1st Respondent were wasted, the Tribunal had no other option in law than to return the Appellant/petitioner as the, candidate that won majority of lawful votes cast at the election in accordance with Section 147(2) of the Electoral Act. Heavy reliance was placed on the case of MICHEAL v. YUOSUO (2004) 15 NWLR (895) 90 in which this court interpreted the provisions of Section 136 (2) of the Electoral Act 2002, said to be the same, word for word, with Section 147 (2) of the electoral Act 2006. The facts of the case and the views at pages 117-8 of the report were stated and set out by learned counsel who argued that the case is on all four with the Appellant’s case. It was further contended that since the participation of the 1st Respondent in the election was declared null and void, the votes cast for him were therefore inescapably void since the votes were tied to candidates and not political parties. The case of AJUSUA V. NWOSU (No 1) (2004) 16 NWLR (898) and UBA V. UKACHUKWU (2004) 10 NWLR (881) 224 were retied on the submission. According to counsel, void and/or wasted votes, are not to be reckoned with in determining the majority of lawful votes cast at an election, citing the authority of AMEOKOJA V. EYIOWUAWI (1961) NLR 834 @ 835, he said with the finding of the Tribunal the Appellant/petitioner ought to be deemed as duly elected having scored the majority of lawful votes cast at the said election. The following cases were relied on in urging us to so declare the Appellant – DR. CHRIS NGIGE V. MR. PETER OBI (2006) 14 NWLR (PT 999) P. 1 @ P. 184; MICHAEL V. YUOSUO (supra) @ PP.117-118; IGE V. AKINYEMI (1998) 7 NWLR Pt 557) p.281; IDRIS V. SALEH (1998) 6 NWLR (PT. 553) p. 256; BOYO V. NJIDDA (2004) 8 NWLR (PT. 876) P.546; BUHARI V. OBASANJO (2005) 13 NWLR (PT. 941) P.1
Furthermore it was argued that the Tribunal was in grave error for not returning the Appellant as duly elected on the ground that the election of the, 1st Respondent was not voided on the ground that he did not score the majority of valid votes cast at the election but on ground of disqualification about which there was no evidence to, show that the electorate knew before the election. The judgment of the Lower Tribunal at pp. 314-315 of the record of appeal was set out and it was submitted that it was perverse to hold that section 147(2) did not apply to the facts and circumstances of the Appellant’s case.
The case of MICHAEL V. YUOSUO (supra) was again cited and it was contended that since the Appellant was shown to have won the majority of lawful votes cast at the election, the question of whether the electorate were aware of the 1st Respondent’s disqualification did not arise.
In the alternative, it was submitted that the Appellant had pleaded the notoriety of the 1st Respondent’s disqualification in his petition, which facts were not in law effectively denied by the Respondents. That the law is trite that election petition is based on pleadings which bind the parties and the court is not permitted to make a case outside the pleadings for the parties. The cases of BUHARI V. OBASANJO (supra) ABDULLAHI V. ELAYO (1993) 1 NWLR (268) 141 and ENEOLI V. ORAEKWE (2006) 1 NWLR (961) 342 were cited and it was submitted that admitted facts need not be proved on the, authority of OGUNOLA V. EIYEKOLA (1990) 4 NWLR (146) 632 and LEWIS & PEAT V. AKHIMIEN (1976) 1 ALL NLR (1) 460. Learned counsel then pointed out that the parties had agreed at the Tribunal that there was no need for oral evidence and that the petitions was to be decided on the pleadings and documentary evidence admitted by consent. That the procedure agreed to by the parties and adopted by the Tribunal was such that no oral evidence was led at the trial.
Paragraphs; 6, 7, 8, 9 and 12 of the Appellant’s petition were set out by learned counsel who argued that the 2-7th Respondents did not deny these pleadings by the Appellants and that the 8th Respondent in paragraph 16 of his reply which is at page 163 of the record of appeal, expressly admitted paragraph 12 of the petition. In addition the letter written by 8th Respondent on 20th February 2007 to Respondent on the disqualification of the 1st Respondent, which appears at page 117 of the record of appeal, was referred to by counsel. It was his submission that it is clear that the Respondents have either expressly or by operation of the law admitted the pleadings of the Appellant on the notoriety of the 1st Respondent’s disqualification and so there was no need for it to be proved. He relied on the cases of UBA V. JARGABA (2007) 11 NWLR (1045) 247 @ 269-70, DANIEL V. IROERI (1985) 1 NWLR (3) 541, NARINDEX TRUST LTD V. N.I.M.B. (2001) 10 NWLR (721) 321 and Section 75 of the Evidence Act.
From the foregoing, we were invited to upturn the finding of the lower Tribunal that there was no evidence of the 1st Respondent’s disqualification in the constituency before the election for the electorate to have known about it. We were then urged to draw the inference that the notoriety of the 1st Respondent’s disqualification was proved and known to the electorate. The cases of BENMAX V. AUSTIN MOTORS (1955) AC 370, LAWAL V. DAWODU (1972) 8-9 SC 83, OBISANYA V. NWOKO (1974) 1 ALL. NLR (1) 420 & NWOLE V. IWUAGWU (2005) 16 NWLR (952) 543 @ 567 were relied on by learned counsel for the invitation. In conclusion, we were urged to allow the appeal and declare/return the Appellant as duly elected.
1ST RESPONDENT’S SUBMISSIONS:
It may be recalled that I have earlier found the 1st Respondent’s issue 1 to be incompetent and struck out same. For that reason all the submissions by learned counsel on the said issue are, no longer of any moment in the appeal and so are discountenanced.
On the 2nd issue which is similar in substance to the rephrased or reformulated issue set out earlier, the learned counsel for the 1st Respondent had submitted that the lower Tribunal was right in holding that the provision of Section 141 (2) of the Electoral Act, 2006 do not apply for the reason given by it. He urged us to follow the decision in UNCP V. DPN (1998) 8 NWLR (560) 90 @ 95 and reiterated that there was no proof that the electorate knew of the disqualification of the 1st Respondent and “that they acted out of folly.” According to him, no oral evidence was called at all and so this court is being called on to speculate on whether or not the, over 100,000 voters genuinely knew about the disqualification when they casted their votes at the election.
Learned counsel insisted that the Tribunal was right in rejecting the Appellant’s counsel attempt to substitute his address for evidence and cited the cases of AMEOKOSA v. EYIOWUAWI (1961) ALL NLR 834 @ 835 GWADABAWA V. KWANJI (1998) 6 NWLR (553) 26l @ 262, BALEWA V. MUAZU (1999) 2 NWLR (609) 124 and AJAYI V. AJIBOLA (2004) 16 NWLR (898) 91 @ 175. It was his contention that the law is that where the candidate declared winner is found not qualified to contest the election, the Petitioner or person claiming to be next in scoring majority of lawful votes cannot be declared as the winner. All that the Tribunal or court will do in such a situation was to annul the election and order fresh election and relied on the case of UNCP V. DPN (supra) and BAYA V. NJIDDA (2004) 8 NWLR (876) 544. It was his further submission that since no voter from the constituency was called to testify that he was aware of the 1st Respondent’s disqualification, the Appellant was deemed to have abandoned his paragraphs 12 and 13 of the petition relying on AWUSE v. ODILI (2005) 16 NWLR (952) 416 @ 504-5. We were urged to hold that the Appellant was not entitled to be returned as the winner of the election.
2ND – 7TH RESPONDENTS SUBMISSIONS:
The two issues raised by the Senior legal officer, counsel for the 2nd – 7th Respondents at page 4 of their brief of argument are mere arms of the issue for determination as set out before now. They are a division of the same issue into two.
(2) The submissions on the issues are to the effect that the applicability of Section 147(2) will depend on the grounds or reasons for the Tribunals’ finding that a candidate was not validly elected:
That a finding that a candidate was not qualified to contest an election under Section 145 (1) (a) is different from one that such candidate was not duly elected by the majority of lawful votes cast at the election under Section 145 (1) (c) of the Electoral Act, 2006.
According to counsel the crucial point in the two sub-paragraphs is the ground upon which the Tribunal determined the election and not the ground upon which the election was questioned relying on Sections 146 (1) 147 and paragraph 27 of the 1st Schedule to the Electoral Act which are said to be to the effect that the Tribunal is not bound by the reliefs sought in petitions. The case of OPIA V. IBRU (1992) 3 NWLR (231) 658 @ 702 was cited for the submission.
The other submissions contained at paragraph 3.2, pages 6-9 of the brief, do not arise from any issue formulated from a ground of appeal. The Appellants Notice of Appeal does not contain a ground challenging the finding of the lower Tribunal that the 8th Respondent did not in fact participate in the election in question. The submissions in the circumstances are incompetent, irrelevant, and in fact useless for the purpose of determining the germane issue in the appeal. In any event it is quite curious of the senior legal officer Bertha l. Amadi (Mrs.) to attempt in those submissions to make a case for the 8th Respondent which he himself did not put forward without a cross appeal or as seen earlier, the 8th Respondent had urged this court to dismiss the Appellant’s appeal but did not ask the, court to return him as elected. Is he now speaking through the 2nd -7th Respondents by use of the legal officer? There appears to be more than meet the eyes in the strange alliance between 2nd -7th Respondents and the 8th Respondent in this appeal. I say no more.
8TH RESPONDENT’S SUBMISSIONS:
Like for the appellant, the learned ‘ counsel for the 8th Respondent set out the provisions of sections 145 (1) and Section 147 (1) and (2) of the Electoral Act 2006 and he argued that following the settlement of issues by the parties, the pleadings no longer defined the issues for trial’ He relied on the case of MAXIMUM INSURANCE V. S.A. AWONIYI (1994) NWLR (PT 331) 178 and said that with the holding that the election of qualification which was an issue agreed and settled by the parties, the Tribunal was no longer under a duty to go into the validity or unlawfulness of the votes. Learned counsel argued further that the Tribunal was right to act under Section 147 (1) and nullify the election and that Section 147 (2) could only apply where the candidate elected did not score a majority of the valid votes cast at the election. That the Tribunal did not make any such finding.
In the alternative, it was contended that even if Section 147 (2) was applicable, the Appellant did not score the highest number of valid votes cast at the election for him to be returned as duly elected.
That an invalid vote is a vote tainted by corrupt practices such as over voting, stuffing of ballot, awarding of votes, abuse of ballot, impersonation and other criminal acts. According to learned counsel that would not be the case of a vote lawfully cast for an unknown disqualified candidate which is presumed valid until shown by evidence to be invalid. The observation of SALAMI, JCA in the case of ALWAU V. YAKUBIJ (No citation provided) and the cases of DAGGASH V. BULAMA (200s) AFWLR (246) 1337 @ 1351 and BAYO V. NJIDDA (supra) @ pp 41- 42 were referred to and we were urged to follow them.
It was also submission of counsel that the 1st Respondent had denied in paragraph 14 of his reply, the appellant’s paragraph 14 of his reply, the appellant’s paragraph 12 on the notoriety of his disqualification in the constituency and that there was no documentary evidence on the public awareness on such disqualification. He therefore said the Tribunal was right when it held that there was no evidence that the electorate knew of the 1st Respondent’s disqualification and that the case of MICHAEL V. YUOSUO (supra) relied on by the Appellant is distinguishable as the issue of awareness of the public was not raised and canvassed. We were urged not to rely on that case in this appeal.
The arguments advanced by the learned counsel in respect of his issue II appear to me not to have flowed from or based on the issue as formulated. The arguments are not germane to the said issue but rather on different findings of the Tribunal about which there is no cross appeal or even a Respondent’s notice by and from the 8th Respondent. To that extent it would be improper and wrong to consider such submissions in the determination of the appeal. The result is that the 8th Respondent’s issue II is left bare and without valid legal submissions to ossify it will, along with the different submission, be ignored henceforth.
In his reply brief, learned counsel for the Appellant had in paragraphs 2.1 – 2.2.4 at page 3-6 attempted to further argue the appeal in the name of replying point of law. He should be reminded that he cannot and should not do that next time. The purpose for which Reply briefs are meant is now well known and that is to answer or respond to new or fresh points raised in the Respondent’s brief. It is not an avenue through or by which an Appellant should canvass or proffer, further or repeat arguments in support of an appeal on the pre of replying on points of law. See Order 17, Rule (5) of the Court of Appeal Rules 2007, POPOOLA V. ADEYEMI (1992) 8 NWLR, (257) 1, ADEBIYI V. SORINMADE (2004) ALL FWLR (239) 933, SHUAIBU V. MAITHODA (1993) 3 NWLR (284) 748. The submissions contained in the aforesaid paragraphs are not replies but largely repetition and further arguments of the Appellants appeal. I treat them as such.
In other parts of the Reply brief, learned counsel had submitted that the law is settled that the court is not bound by the issues formulated by parties in their addresses but can suo moto formulate issues, in order to advance the interest of justice. He relied on the cases of EKUNOLA V. CBN (2006) 14 NWLR (1000) 292 @ 32 & 344-5 and AGBEJE V. AJIBOLA (2002) 2 NWLR (750) 127. I do not find the remaining portions of the Reply to be response to any new issues raised in the Respondent’s brief. Like the earlier paragraphs named above, they, are further arguments of the appeal except for paragraph 2.7.18, which has been overtaken by my finding on the 8th
Respondent’s submission in paragraph 5.00 – 5.04 of the 8th Respondent’s brief.
These are the relevant submissions of learned counsel on the issue reformulated for determination in the appeal.
For a determination of the issue, which is on the application of Section 147(2) of the Electoral Act 2006, it is pertinent section and others that may be directly material to its application.
Section 147 has the following provisions:
145 (a) Subject to subsection (2) of this section, if the Tribunal or the Court as the case may be determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.
(2). lf the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
These provisions are undoubtedly clear straightforward, plain and so the courts, function is to ascribe to them, in their interpretation, the unambiguous, ordinary grammatical meaning. This is more so in election petition matters and appeals, which are said to be sui generis because they are governed by the special and specific provisions of laws, made for them. In their simple con, the provision in subsection (1) provides the Tribunal or court the discretionary power and jurisdiction subject to subsection (2), to nullify an election if it found that the candidate returned as elected was not validly elected on any of the grounds specified in the Electoral Act on which an election can validly be questioned. What is patently clear in this portion of Section 147 is that once the Tribunal or court as the case may be determined, decided, held or found that a candidate returned as elected was not validly elected on any of the grounds set out in section 145 (1) of the Electoral Act then the Tribunal or court had the option or choice, subject to subsection (2) of the Section, to annul, void cancel or nullify the said election provided in this subsection is in no way fettered by the provisions of subsection (2) once a filling was made that the candidate returned as elected was not validly elected on any ground. The only restriction imposed by subsection (2) to which subsection (1) was made subject as would be demonstrated later is on the consequential order to be made after the decision that a candidate was not validly elected by a majority of valid votes cast at the election. Consequently, the Tribunal or court had the unfettered judicial discretion to annul or nullify an election once it decided that the candidate returned as elected was not validly elected on any ground subject only to the provisions subsection (2). This is the genuine and sincere purport of the provisions in subsection (1).
Now, the plain wording in subsection (2) imposed a judicial duty and responsibility on the Tribunal or court where and when it determined that a candidate returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election to declare as elected, the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the constitution and the Electoral Act. So once the Tribunal or court found or decided that a candidate return as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, which is one of the grounds set out in section 145 (1) paragraph (C), it had or was under a legal obligation and owe the duty to declare as elected, the candidate who scored the highest number of valid votes cast at the election and also satisfied the requirements of the Constitution and the Electoral Act. In that situation, the tribunal or court is not annul the election and order fresh election as provided under subsection
(1) But to declare as elected the candidate with the highest number of valid votes cast at the election. For the duty to arise therefore the following conditions must be met, that is:-
(a) That the candidate returned as elected was found not to have been validly elected on the ground that he did not score the majority of valid votes cast at the election.
(b) That there was another candidate who scored the highest number of valid votes cast at the election and
(c) That the candidate in (b) above also satisfied the requirement of the Constitution and the Electoral Act.
Before the provisions of subsection (2) can properly be resorted to and applied by the Tribunal or court, all the above requirements have to be met or satisfied together; conjunctively. If anyone or more of them is absent, the duty imposed in the provisions of the subsection on the Tribunal or court would not arise and so resort to them cannot properly be had.
The fundamental difference between the two subsections is that under subsection (1) the Tribunal or court was given the power and jurisdiction to nullify an election if it determined that the person returned or elected was not validly elected on any one or more of the grounds set out in Section 45 (1) (a), (b) and (d) of the Electoral Act.
Perhaps I should point out here that the power given to the Tribunal or court was to nullify the election and not the return of the candidate declared and returned as elected at the election. Once an election was nullified under subsection (1) there would no longer be any results to be declared and returned for any or all the candidates that contested the said election. The nullification of the election means the nullification of all the results in respect of all the candidates that contested the election. As a result the only reasonable, fair and just consequential order to follow such nullification, would be one for fresh election since the effect of nullification is that legally, no valid and lawful election was conducted in the constituency in question. Otherwise, the electorates in that constituency would unjustifiably be denied their guaranteed constitutional right to vote by being disenfranchised.
Under subsection (2) on the other hand, the Tribunal or court has no power or jurisdiction to nullify or void the election but the return of the candidate declared and returned as elected if it decided that he was not validly elected on the ground set out in Section 145 (1) (c) of the Electoral Act by declaring as elected, the candidate who scored the highest number of valid votes cast at the election. In this case only the result declared and returned for the candidate returned as elected would be voided and nullified on the ground that he did not score the majority of valid votes cast at the election.
All the cases cited by learned counsel (supra) on the interpretation of section 136 (1) & (2) of the Electoral Act 2002, which are in pari materia with section 147 (1) & (2) of the Electoral Act, 2006 are in line with the above position.
Unfortunately, I have not been able to lay hands on decided judicial authorities (reported or not) in which the provisions of Section 147 (1) and (2) of the Electoral Act 2006 were interpreted and applied before now. Being the final court in respect of this appeal, I am obliged as I have done above, to proffer an interpretation of the provision for the records since this maybe among the first set of appeals in which they are directly in issue for determination.
I now turn back to the application or otherwise of the provisions to the petition before the lower Tribunal. Let me start by pointing out that the appellant is not in this appeal challenging or complaining about the power or jurisdiction of the lower Tribunal under subsection (1) to nullify the election in question having found as it did, that the 1st Respondent was as at the time of the election, not qualified to stand or contest the election, which is a ground as shown earlier, on which an election can be questioned under Section 145 (1) (a) of the Electoral, Act. As, can be deciphered from the issues formulated and submissions thereon by the learned counsel for the Appellant, the pith of the complaint is that after an order nullifying the election on ground of disqualification under the subsection, the lower Tribunal ought to have returned the Appellant as validly elected having held the votes cast for the 1st Respondent to be wasted votes. It may be recalled that in my interpretation of the subsection before now, I have held that once an order nullifying an election was made there would no longer be any scores returned for the candidates to be used to return a candidate as having scored the highest number of valid votes cast at the election. In addition, the lower Tribunal has no power under subsection (2) to return another candidate after determining that the person returned as elected was not at the time of the election, qualified to contest the said election.
As stated elsewhere that Tribunal can only declare as elected another candidate if it determined that the person, returned as elected did not score majority of valid votes cast at the election. So the question would now arise; should the lower Tribunal having regard to the pleadings and the exhibits before it have found that the 1st Respondent, who was returned as elected, did not score the majority of valid votes cast at the election.
In paragraph 5 of his petition, the Appellant had set out the grounds of the petition as follows: –
“And your petitioner states that the grounds the petitioner on which relies are as follows:-
(i) That the return of the 1st Respondent was void, because he was not qualified to contest the election; and
(ii) That the 1st Respondent was not duly elected by a majority of lawful votes cast at the election.
The Appellant had therefore in addition to the ground of disqualification on which the lower Tribunal nullified the election pleaded the ground set in Section 145 (l) 1c) of the Act; that the 1st Respondent was not the election. He went as follows: –
“13. The petitioner shall contend that the 108,389 votes purportedly credited to the 1st Respondent were void votes, for the purpose of determining the lawful votes cast at the election.”
Then in paragraph 14 (b) the Appellant prayed thus:
“That the petitioner be returned as duly elected to the House of Representatives of National Assembly having scored the majority of lawful votes cast at the election.
All the Respondents on their part denied the above pleadings by the Appellant in their respective replies to the petition. Consequently, issues were joined on the ground whether the 1st Respondent was duly elected by a majority of lawful votes cast at the election or not. Whether or not it was one of the issues settled or agreed to by the parties at the pre-trial hearing, it was a live issue that arose in the dispute between the parties, which called for determination by the lower Tribunal in the petition of the Appellant. The Tribunal was entitled and in fact owes the duty to consider and decide that issue. See NWOKEDI V. EGBE (supra) OKONJI V. NJOKANMA (1991) 7 NWLR (202) 131, COOKEY v. FOMBO (2005) 5 SC (II) 102, OJOH V. KAMALU (2006) ALL FWLR (297) 9:8, AGBO V. STATE (2006) ALL FWLR (309) 380. The lower Tribunal was not bound by any settled issues by the parties, which would not fully and completely decide the real dispute between them. It had the discretion to distill issues from the parties before it on which presentations or addresses were made, in order to resolve the real dispute or complaint in the petition.
It should be remembered that election petitions being of a special and different character, should not be tied to every apron springs of the rules of Procedure for the usual and ordinary civil matters. To suggest and hold that Election Tribunals are bound by issues agrees to by the parties at a pre-hearing session even where such issues would not fully and effectively settle the complaint or grievance presented in the petitions would be going in to realm of unjustified application of procedural rules which do not advance the interest of justice. That would hamstrung the Tribunals, fetter their jurisdiction and curtail their primary judicial function and duty to determine matters before them on the justice of the cases presented by the parties. See AJUDUA V. NWOGU (NO.1) 16 NWLR (898) (53) @ 73, EGOLUM V. OBASANJO (1999) 7 NWLR (611) 355, AJADI V. AJIBOLA (2004) 16 NWLR (898) 91 @ 174.
I agree with the learned counsel for the Appellant that the case of MAXIMUM INSURANCE V. AWONIYI (supra) relied on by the learned counsel for the 8th Respondent on the point is not apt here.
This is an election petition at the trial of which by agreement of the parties, no oral evidence was called or adduced, but was determined on the basis of the pleadings contained in the petition and replies thereto. The issues agreed to by the parties were for the purpose of guidance in writing addresses by counsel on their respective positions in the petition. The lower Tribunal was entitled to and had the power to consider other issues outside the ones agreed by the parties, but which is/are crucial and live in the petition and on which it was addressed by the parties. See OJOH V. KAMALU (supra) also reported in (2005) 12 sc (p. 11) 132, INEC V. KORSI (1999) 4 NWLR (599) 341, ABDULLAHI V. ALEWA (1999) 5 NWLR (602) 196, EKUNOLA V. CBN (supra) OBUN V. EBU (2006) ALL FWLR (327) 419.
Having failed to consider and make a pronouncement on one of the grounds of the Appellant’s petition on which the parties joined issues the lower Tribunal did not discharge its obligation fully in the determination of the Appellant’s petition. Since the appeal is by way of a re-hearing as provided under order 6 Rule 2(1)of the court of Appeal Rules 2007 and no oral evidence was called before the lower Tribunal and so none would be required or necessary at this stage, this court pursuant to Section 16 of the court of Appeal Act, is in as good a position as that Tribunal to consider and determine the issue here. See EKPA V. UTONG (1991) 6 NWLR (197) 258 AFRO CONTINENTAL NIG V. AYANTUYI (1991) 3 NWLR (178) 211, MEKA V. ANIAFULU (2006) ALL FWLR (309) 1465, OLUTOLA V. UNILORIN (2004) 11-12 SC 214.
As has been said earlier, the Appellant in paragraph 13 of his petition stated the votes cast for the 1st Respondent at the election were void votes for the purposes of determining the lawful votes cast at the election. The lower Tribunal in it’s ruling on the disqualification of the 1st Respondent to contest the election had held at page 313 of the record of appeal inter alia that:-
“From the above discussion, it is clear, that the order of the Federal High Court restrained the 1st Respondent from contesting the election. Having found that he contested the election by flouting that court order, his participation was null and void and the votes credited to him wasted.”
(Underlining for emphasis)
It would appear to me that the above decision by the lower Tribunal is to the effect that since the participation of the 1st Respondent in the contest for the election was null and void, he did not legally; in law contest the said election and so all votes credited to him were wasted. My understanding of that is that the lawful or valid votes cast at the election in favour of the 1st Respondent were wasted as far as he was concerned because he could not draw the benefit of such votes. A valid or lawful vote to me is a vote cast at an election by a registered and duly accredited voter, which is in compliance with the provisions of the Electoral Act. Once a vote cast at an election fully satisfied the requirements of the Electoral Act, then such a vote is a valid and/or lawful vote for the purposes of collating or computing the total or majority of valid votes cast at the said election. Since any democratic election is largely a game of numbers determined on the majority of choice by the electors or electorate, any vote/s which met the conditions stipulated in the electoral laws at the time it was cast, should be part of and used in determining the majority of valid votes at the election. The fact that such votes were later declared wasted in respect of a candidate for or in favour of who they were cast did not take away their validity or lawfulness under the provisions of the relevant electoral laws. The validity or lawfulness of a vote is determined in relation to the law providing for such votes before return or result of an election was declared by the appropriate authority.
In the above finding, the lower Tribunal did not declare the votes cast for the 1st Respondent invalid, unlawful or void for the purposes of the entire election. No, only that the votes were wasted as far as the 1st Respondent was concerned because he did not in law participate in the election to enable him benefit from such votes.
The law as rightly stated by learned counsel in their brief is that votes cast at an election would and can or better still, should only be declared wasted if the Tribunal found from the evidence presented before it that at the time of the election, voters who cast votes for a disqualified candidate knew of his disqualification but still decided to vote for him in the election. In such a situation such voters would be deemed to have wasted their valid votes for a candidate who to their knowledge, was not qualified to be a candidate at the election. Such wasted votes would not and should not be reckoned with in the computation of the valid votes cast at the election for the purposes of return of the result of the election. This is because it was the choice of the voters who wasted their votes to throw them away in the election and they did not intend that such votes would affect the outcome of the election.
However even Where the votes cast at an election for a candidate were found to have been wasted because or on the ground that the candidate was not qualified to contest the election and that the electorate knew of the disqualification before the election then the return of the same candidate as winner of the election cannot be voided on the ground that he was not duly elected by a majority of lawful votes cast at the election. This is because before the issue of whether a candidate returned as elected was not duly elected by a majority of lawful vote cast at an election could arise and properly be determined, the issue of qualification of that candidate to contest the said election had to be settled first. Qualification to contest an election is a condition precedent to participation in an election as a candidate and a candidate has to be qualified as required by the relevant laws before he could contest an election at which votes would be cast for him.
Once a candidate was found not to have been legally and lawfully qualified to have contested an already conducted election, the effect is that in law, as pointed out earlier, that candidate did not participate or contest the said election. This is what happened to or in respect of the 1st Respondent in this appeal when the lower Tribunal determined that he was at the time of the election in question, not qualified to contest. So if, the 1st Respondent did not in law participate in the election, how could the lower Tribunal be expected to have made a finding that he was not validly elected on the ground that he did score the majority of valid votes cast at the election? To make such a finding, it would appear to me, would have been a complete summersault and a dramatic flip on the part of the lower Tribunal. On the one hand, it had determined that the 1st Respondent did not participate in the election, then on the other hand, that he participated but did not score the majority of valid votes cast at the election.
Perhaps it needs be pointed out here that the lower Tribunal could not have properly acted under the provisions of subsections (1) and (2) of section 147 of the Electoral Act at the same time in respect of the grounds set out in section 145 (a) and (c) with regard to the same candidate, the 1st Respondent. It is only where and when a candidate was found qualified to contest the election and therefore in law and in fact participated in the contest that could his return as winner of the election be determined on the ground that he was not validly elected because he did not score the majority of valid votes cast at the election under subsection (2) of Section 147 of the Electoral Act. Once he was found not qualified to contest the election in the first place, that would be the end of the matter for him and the Tribunal was entitled to annul the election. The Tribunal or court has no power to nullify the election under subsection (1) and still proceed to purport to act under subsection (2) at the same time. Subsection (1) having been made subject to subsection (2) shows that they apply in the alternative since the latter is superior and contains one of the grounds upon which an election can be questioned or challenged under the Electoral Act. The Tribunal has no power to nullify an election where it determined that the candidate returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election.”
That apart, the lower Tribunal in its decision on the application of Section 147 (2) to the Appellant’s petition had held inter alia: –
“In the instant case, there is no such evidence that the electorate knew about the disqualification of the 1st Respondent. That only came in the address of counsel for the 2nd Respondent. It is trite that the ipse dixit of counsel cannot take place of evidence.”
See page 315 of record of appeal”
The position of the law on the requirement for the application of subsection (2) where a candidate returned as elected was determined not qualified to have contested in election, if applicable at all, has been correctly stated by the lower Tribunal. It is that there has to be evidence that before election, the electorate in the constituency concerned knew, or were aware of the disqualification of the candidate but still chose or opted to go ahead and cast their votes for that candidate, thus deciding to waste such votes at the election.
UNCP v. DPN (1998) 8 NWLR (560) 90 @ 95, DAGASH V. BULUMA (2005) ALL FWLR (246) 1337, BAYO V. NJIDDA (Supra) DASHE V. BAWA (1989) NEPLR 71 @ 85.
It may be recalled that no oral evidence was adduced before the lower Tribunal in the Appellant’s petition. So no oral evidence on the fact that the electorates knew of the 1st Respondent’s disqualification before the date of the election was given or adduced at the trial of the petition. In addition, none of the Exhibits tendered by the 1st Respondent and admitted by consent in evidence at the pre-trial hearings, marked as Exhibits 3-14, is in proof of the fact of knowledge by the electorate as before the election that the 1st Respondent was disqualified or not qualified to contest the election. Consequently, there was no documentary evidence placed before the lower Tribunal on that fact. Learned senior counsel for the Appellant had said in paragraph 8.1.10 at page 19 of his brief of argument that the 2nd – 7th Respondents did not deny the pleading of the Appellant in paragraph 12 of his petition to the effect that the fact of the 1st Respondent’s none qualification was common knowledge ,within the constituency. That the 8th Respondent expressly admitted paragraph 12 of the petition and so all the Respondents have admitted that paragraph which therefore required no further proof. Let me remind learned senior counsel that the germane issue is on knowledge by electorates of the 1st Respondent’s disqualification and that of the other Respondent’s in the appeal. That being so whether or not the 2nd – 8th Respondents either expressly or impliedly admitted that fact is not or would not affect the position of 1st Respondent on the requirement of proof of that fact. In other words, the admission by the 2nd – 8th Respondents of that fact would not bind the 1st Respondent or remove the requirement of proof from the Appellant of that fact. In addition, under Section 26 of the Evidence Act Cap 112, Laws of Federal Republic of Nigeria, 1990 even if paragraph 12 of the Appellant’s petition was admitted by the 2nd – 8th Respondents, the admission was not conclusive proof that the electorate knew of the disqualification of the 1st Respondent before the date of the election in question. Since the Appellant is relying on the pleading in his paragraph 12 to claim a declaration of the right to be returned as the winner of the election, the law is settled that such a declaratory relief cannot properly be granted on mere admissions by the Respondents in their pleadings. The law requires the appellant to provide or adduce sufficient evidence of his entitlement to that relief in order to justify or warrant the grant of the declaration sought. See BELLO V. IWEKA (1981) 1 SC 101, ONU V. AGU (1996) 5 SCNJ 74 @ 87, YAHYA V. MICHIKA (2000) 7 NWLR (664) 300 @ 315, SSS V. AGBAKOBA (1999)3 NWLR (595)314 @ 354, ABDULLAHI V. MIL. ADMINSTRATOR, KADUNA STATE (2004) 5 NWLR (866) 232 @ 246.
With his choice of the option not to call oral evidence at the trial of the petition, the Appellant has to bear the consequence; swim or sink with the exercise of that discretion.
Furthermore, the 1st Respondent who was directly concerned with the issue of disqualification has emphatically and in clear terms denied his disqualification in paragraph 12 of his Reply to the petition issue was accordingly joined between the Appellant and 1st Respondent on the disqualification and knowledge of it by the electorate which called for proof on the preponderance of evidence or balance of probabilities. Let me point out that the lower Tribunal had made a finding on the disqualification of 1st Respondent based on the documentary evidence placed before it. However there was no evidence whatsoever that the disqualification was known to the electorate before they casted their votes at the election. In those circumstances, there was no evidence upon which the lower Tribunal could rely to apply the provisions of Section 147 (2) and justify the declaration of the Appellant as the candidate who scored the highest number of valid votes cast at the said election. That Tribunal was therefore right in the finding on the issue in the portion of decision set out earlier.
All I have said and demonstrated before now is that the lower Tribunal having nullified the election on ground of disqualification could not at the same time have found that the 1st Respondent was not duly elected on the ground that he did not score the majority of valid votes Cast at the Same election. That there was no evidence before the Tribunal Whatsoever, that the electorate knew of the disqualification of the 1st Respondent before the date of election in question.
In the final result, I find no merit in this appeal and dismiss it. Each party has to bear their costs of prosecuting the appeal.
APPEAL NO.:CA/PH/EPT/464/2007
This appeal like I stated earlier is also against the decision of the lower Tribunal dismissing the Appellant’s petition on ground of the judgment delivered on the 24th of August 2002.
The Appellant here was also a candidate at the election in question and as indicated at the beginning of the judgment, he was ascribed 3,815 votes at the end of the election. As a reminder, the Appellant was sponsored by All Progressive Grand Alliance (APGA) and being dissatisfied, with the return of the 1st Respondent as the winner of the said election, he filed an election petition in the lower Tribunal on the 22nd of May 2007 to challenge same. The petition registered as Petition No. EPT/NA/IM/25/2007 was based on two (2) grounds as follows: –
(a) “The 1st Respondent was at the time of the election not qualified to contest the election.
(b) The 1st Respondent was not duly elected by majority of lawful votes cast at the election.”
See page 3 of the printed record of the appeal transmitted to this court on 7th November 2007. In compliance with the practice Directions No. 1 of 2007 used at the lower Tribunal, pre-hearing session or trial of the petition commenced on the 8th of August 2007 from when it was adjourned to the 20th of August 2007. On the 20th of August 2007 the pre-trial hearing was adjourned to 5th of September 2007 as recorded at pages 71-75 of the record of appeal. The next proceedings in the petition, as shown at page 76 of the record of appeal, were conducted on 6th September 2007 and not 5th September 2007 when they were adjourned to. The proceedings on the 6th of September 2007 were brief because all that happened was that after record of appearance of counsel and the announcement by petitioner’s counsel that the petition was for continuation of pre- hearing session for which they were ready to go on lower Tribunal ruled thus: –
“Tribunal:- having nullified the election upon which this petition is based in our judgment in EPT/NA01/2007 delivered on 24th August 2007 this petition is hereby dismissed for same reason offered in the said judgment.”
The Appellant was aggrieved by the above decision and in a Notice of Appeal filed on the 26th of September 2007 challenged it on the following two (2) grounds: –
.1. The trial Tribunal erred in law and indeed denied the Appellant fair hearing when it dismissed the Appellant’s petition without a hearing on the ground that the election subject matter of the petition had already been nullified in another petition
2. The Learned Trial Tribunal erred in law when it dismissed the Appellant’s petition based on a judgment that was given in another petition.”
In line with the practice in this court, briefs of argument were filed and exchanged by learned counsel for the parties in the appeal. The Appellant’s brief was filed on the 15th of November 2007, the 1st and 2nd Respondents briefs were each filed on the 3rd of December 2007 while the brief of the 4th – 17th Respondents filed on the 24th of December 2007 was deemed filed on the 10th of March 2008. The Appellant had also filed a Reply brief on the 7th of December 2007. In addition, a Respondent’s notice and Notice of preliminary objection were filed on the 8th of November 2007 by the 2nd Respondent. A motion also filed by the 2nd Respondent for leave to raise a fresh issue in the appeal and an order deeming the Respondent’s notice and arguments on the fresh issue contained in the 2nd Respondents brief as having been properly filed was granted on 10th March 2008. No brief of argument was filed by or for the 3rd Respondent in the appeal. The briefs of argument filed were adopted by the respective learned counsel at the hearing as submissions in support of their different positions.
Learned counsel for the Appellant had formulated a single issue from the two (2) grounds of appeal for determination. It is thus: –
“Whether the Appellant was given fair hearing?”
Learned counsel for the 1st Respondent couched the issue for determination as follows: –
“Did the Tribunal have the jurisdiction to entertain the Appellant’s petition having nullified the election on 21st April 2007″?
For the 2nd Respondent, three issues were submitted for determination based on the grounds of Appeal, Notice of preliminary objection and the Respondent’s notice.
A sole issue was also formulated in the 4th -17th Respondents, brief of argument for decision in the appeal. It is
”Whether the Trial Tribunal was right in applying its judgment in petition NO. EPT/NA/IM/01/2007 as its judgment in this instant case.”
Looking at the issues formulated by learned counsel, I would say that the learned counsel for the Respondents had taken their eyes off the ball in their formulation. The grounds of appeal contained in the Appellant’s Notice of Appeal are squarely complaining of want of fair hearing in the ruling of the lower Tribunal dismissing the Appellant’s petition. None of them complained about the jurisdiction of that tribunal to hear the Appellant’s petition. The issues of fair hearing and jurisdiction are two entirely distinct matters that cannot be properly raised in a single ground of appeal. More over in the present appeal, the lower Tribunal did not in the ruling dismissing the Appellant’s petition say that it did so, because it lacked jurisdiction to hear same. So the issue of jurisdiction of the lower Tribunal raised by the learned Respondent’s counsel did not ensure or arise from the decision appealed against. The issues are even for that reason alone incompetent. I have shown that they did not arise from the grounds of appeal and so for that reason the issues are well out of the realm of competence. ALATAHA V. ASIN (1999) 5 NWLR (601) 32, BANKOLE V. PELU (1989) 8 NWLR (211) 525, AKIBU V. ODUNTAN (2001) 13 NWLR (685) 446, ALAKE V. ABALAKA (2003) 6 NWLR (815) 124, MOMODU V. MOMODU (1991) 1 NWLR (169) 608, UTUK V. NDA (2005) 6 SC (II) 69. Consequently, the Appellant’s issue remains the only competent issue distilled from the grounds of appeal for determination in the appeal. Though it can be bettered in formulation, I intend to consider it in the terms submitted by the Appellant in the determination of his appeal.
Before then however, since the 2nd Respondent had raised a preliminary objection to the appeal, the law requires me to decide it first since its primary aim is to abort the determination of the appeal on the merit or terminate the proceedings in limine at the point it was raised. GOJI V. EWETE (2001) 15 NWLR (236) 273 @ 280, UBA V. ACB (2005) 12 NWLR (939) 232 @ 259, OKOI V. IBIAG (2002) 10 NWLR (776) 445 @ 468, NGIGE v. OBI (2006) 14 NWLR (1999) 1 @ 212.
The grounds upon which the preliminary objection was premised are that: –
(1) “The present appeal as borne out from the Record of Appeal does not arise from an identified drawn up judgment, ruling or order of the Learned Tribunal, but from the Record of proceedings of 6th September 2007 .
(2) The decision of the Learned Tribunal dismissing PETITION NO: EPT/NA/IM/25/2007 is contained in the consequential orders of the Learned Tribunal made on 24th August 2007 in its judgment in PETITION NO: EPT/NA/IM/01/2007 delivered on 24th August 2007.
(3) The time to appeal against the said judgment and or consequential orders of the Learned Tribunal made on 24th August 2007 expired on 14th September 2007.
(4) The Notice of appeal in this matter lodged on 26th September 2007 purporting to challenge the said decision of the Learned Tribunal as contained in its consequential orders made on 24th August 2007 without the leave of the Court of Appeal extending the time within which to appeal is irredeemably incompetent.
(5) The Court of Appeal does not have jurisdiction to entertain appeals from record of proceedings or non existent rulings of the national Assembly Election Petition Tribunal.”
The objection was argued as issue No. 1 in the 2nd Respondent’s brief of argument. After setting out the provisions of Section 241 (1) and 318 on the right of appeal and definition of decision, it was submitted that by the provisions of Section 149 (1) of the Electoral Act, the Appellant was required to file a Notice of Appeal against the decision of the lower Tribunal within 21 days from the date thereof. That an appeal filed out of time prescribed by law without an order enlarging such time is irredeemably incompetent and liable to be dismissed in limine. A host of cases including AWHINASHI V. OTERI (1984) 5 SC 38 were cited on the point and it was argued that the Notice of Appeal was against a non existent ruling because the lower Tribunal never delivered a ruling on 6th September 2007. That the record of appeal contained no such ruling but record of proceedings of 6th September, 2007 at page 76 against which there is no right of appeal. We were referred to the case of ADELEKAN V. ECULINE (2006) 12 NWLR (993) 33 @ 56-7 on the effect of defects in the Notice of Appeal and it was further argued that the Appellant’s petition was dismissed on 24th August 2007 and by 6th September 2007 there was no pending petition capable of being dismissed. That the Appellant became aware on the 6th of September 2007 that his petition was dismissed on 24th August 2007 and so the Notice of appeal was filed outside the period statutorily allowed and without leave of this court. For the above reason, we were urged to uphold the objection and find the Appellant’s Notice of Appeal to be irredeemably incompetent.
In the Appellant’s Reply brief, it was submitted that the appellant’s appeal was against the decision of the lower Tribunal dismissing his petition dated 6th September 2007 and not the judgment delivered on 24th August 2007 in which he was not a party. Alternatively, that the Appellant became aware of the dismissal of his appeal on 6th September 2007 and so time started to run from that day. The cases of OHUKA v. STATE (1988) 19 NSCC (PT 1) 288 and AMADI V. MILAD OF IMO STATE (2000) 4 NWLR (652) 328 @ 337 were relied on for the submission.
Now, the law is settled and very well known that a competent Notice of Appeal is the foundation and the only process by which the appellate jurisdiction of this court can be invoked. It is the soul and sub stratum of every competent appeal that by law can effectively initiate proceedings in this court. A competent Notice of Appeal is the initiating process in this court and so any material defect therein will be fatal to an appeal and therefore the invocation of the court’s jurisdiction. Such defect would render an appeal incompetent and the court would lack the requisite vires and judicial authority to deal with or entertain it. YUSUF V. ADEWUYI BROTHERS (1991) 7 NWLR (201) 39, ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (2006) ALL FWLR (319) 862, ADELEKAN V. ECU-LINE (supra) also reported in (2006) ALL FWLR (321) 1213.
Similarly established and known is the position of the law that a Notice of Appeal filed outside the period of time prescribed by the relevant statutory provisions and in the absence of a valid order enlarging such time first sought and obtained, is no notice of an appeal at all. This is because for being filed in contravention or violation of the law, the law does not recognize its existence at all for the purposes of judicial proceedings. The physical act of filing such a notice or its presence in the record of the court is of no legal consequence whatsoever since in the eyes of the law, it does not exist.
In common parlance, such a Notice of Appeal is only purported and incompetent and liable to be struck out or removed from the record of the court in limine. As shown by the number of cases cited by the learned counsel for the 2nd Respondent on the point, judicial authorities on it are legion and I do not intend to belabour them.
Back to the objection now, I would start as a foundation by restating the law that both the court and the parties to this appeal are bound by the unchallenged record of appear transmitted from the lower Tribunal in respect of this appeal. See SOMMER V. F.H.A. (1992) 1 SCNJ 73, ORUGBO V. UNA (2002) FWLR (127) 1024, FIBIRAH V. MINIMAH (2003) 5 SCNJ 142, NEW NIG. BANK V. BENCLAG (2004) ALL FWLR (228) 606, TEXACO PANAMA INCORP. V. SPDC (2002) 2 SCNJ 102. In these premises, the printed record of appeal transmitted from the lower Tribunal to this court on 7th November 2007 in respect of the Appellant’s appeal bind this court and all the parties in the appeal since there is no record of a successful challenge to them. The record contains notes and records of all processes and proceedings in respect thereof conducted by the lower Tribunal on the petition filed by the Appellant. Happily, the record speaks clearly of what happened to the Appellant’s petition from the date it was filed to the date it was disposed of by way of dismissal by the lower Tribunal.
From the record of the last proceedings conducted in the Appellant’s petition, which is at page 75, it cannot seriously be submitted that the Appellant’s petition was not dismissed on the 6th of September 2007. For the avoidance of doubt, the lower Tribunal had ruled inter alia, as seen earlier, thus: –
“…This petition is hereby dismissed for the same reason offered in the said judgment.”
Before the 6th of September 2007, there are no records of any proceedings conducted in the Appellant’s petition at which the petition was dismissed by the lower Tribunal. In particular, the record of appeal do not show that the pre-hearing session in the Appellant’s petition was ever adjourned to and conducted on the 24th of August 2007 at or during which the Appellant’s petition was allegedly dismissed. However what the record of appeal emphatically shows is that the Appellant’s petition was dismissed on the 6th of September 2007 when it came up for continuation of the pre-hearing session as demonstrated before. The 2nd Respondent can therefore not be heard to dispute this record and it is unserious of counsel to argue otherwise, even after admitting that it was only on the 6th of September 2007 that the Appellant became aware that his petition was dismissed. The Appellant’s petition could not have been properly and rightly dismissed in another entirely separate petition in which he was not a party and about which he had no notice. That was what must have necessitated the proceedings of the 6th of September 2007 conducted by the lower Tribunal in which it then ruled to that effect. The proceedings of 6th September 2007 contained a ruling of the lower Tribunal in which the Appellant’s petition was dismissed for reason, given therein. That ruling was the decision of the lower Tribunal dismissing the Appellant’s petition against which he filed his Notice of Appeal.
The decision appealed against, was by the record of appeal before us, delivered on the 6th of September 2007 by the lower Tribunal. Consequently, the Applicant’s Notice of Appeal filed on the 26th of September 2007 was undoubtedly filed within the period of twenty-one (21) days statutorily prescribed for the filing of such Notice of Appeal.
I have also noted that a notice of application or notice of an additional ground of preliminary objection was filed by the 2nd Respondent on the 28th of February 2008. There is no record that leave was granted for that ground in the said application to be argued as an additional ground of the preliminary objection. In any event, the said ground was the fresh issue for which the 2nd Respondent was granted leave to raise and argue in the appeal vide his application filed on 11th December 2007, which was granted on the date of hearing the appeal. In the result, the preliminary objection raised by the 2nd Respondent on the said Notice of Appeal is bereft of any merit whatsoever. It fails woefully and is accordingly overruled and dismissed.
The coast is now clear for a consideration of the submissions of counsel on the merit of the appeal with the preliminary objection out of the way.
I should start with the fresh issue raised and argued in the 2nd Respondent’s brief as issue No. 2 from pages 11 – 14 thereof. The issue is a challenge to the competence of the Appellant’s petition on ground of non-payment of appropriate fees, which was said to be a condition precedent to the filing of a competent petition under paragraphs 35 and 46 of the 1st schedule to the Electoral Act 2006. Ordinarily, the issue should have been raised by the 2nd Respondent in the lower tribunal to enable it be considered and pronounced upon by that Tribunal.
Apparently, it was not so raised and from the record of the appeal, the pre-hearing session in the Appellant’s petition was not concluded before the lower tribunal dismissed it. So of what use or to what effect would the success of the fresh issue raised by the 2nd Respondent be in this appeal. The lower tribunal did not hear and determine the appellant’s petition on the merit before dismissing it and so the issue of the competence or otherwise of the petition had been overtaken by the procedure adopted and the order for dismissal by the lower Tribunal. The Appellant by this appeal is challenging that procedure and order on the ground that he was not given fair hearing therein. Or is the 2nd Respondent by the fresh issue saying that the lower Tribunal had no power to dismiss the Appellant’s petition since it was incompetent?
This same fresh issue was the ground upon which the 2nd Respondent’s notice to contend that the judgment of lower Tribunal be affirmed on other grounds than those relied on was based. The 2nd Respondent’s notice as was indicated elsewhere was filed on 8th November 2002. It is clear that the 2nd Respondent is either desperate or fishing in his opposition to the Appellant’s appeal by the use of the same issue as a fresh issue, a ground of preliminary objection and a ground to contend that the decision of the lower Tribunal be affirmed in a Respondent’s notice.
I should draw the attention of learned counsel to the case of ABU V. KWYANBANA (2001) 1 NWLR (695) 491 @ 499-500 (cited in Appellant’s Reply brief) in which this court herd that a Respondent cannot use a Respondent’s notice where he intends to –
(a) Dispute the jurisdiction of the court
(b) Contest the competence of the entire proceedings;
(c) Maintain the absence of a fundamental prerequisite for a suit.
See in addition, N.N.B. PLC v. EGUN (2001) 7 NWLR (711) 1 @ 13-14, WILLIAMS V. DAILY TIMES (1990) 1. NWLR (124) 1, L. C. C. V. AJAYI (1070) 1 ALL NLR 291.
Now, learned counsel for the Appellant started his submission on the issue by reference to Section 36 of the 1999 Constitution of Federal Republic of Nigeria which guaranteed fair hearing and judicial authorities that a breach thereof renders trial or proceedings null and void. The cases are: OFFODILE V. EGWUATU (2006) 1 NWLR (961) 421 @ 434, OKAFOR V. A. G. ANAMBRA STATE (1991) 6 1 NWLR (200) 659 @ 678, UNIBRO NIG. LTD V. C.B. CREDIT LYNUAIS (2003) 6 NWLR (816) 402 @ 431-2. He submitted that where any attribute of fair hearing is absent in a trial, the proceedings must be declared a nullity. In the appeal learned counsel pointed out that the lower Tribunal dismissed the appellant’s application on ground of a judgment in another petition in which he was not a party or heard. That failure of that Tribunal to afford the Appellant the opportunity of fully presenting his case rendered the decision to dismiss his petition a nullity. We were urged by learned counsel to so hold, resolve the issue in Appellant’s favour, allow the appeal, set aside the ruling of the lower Tribunal and remit the matter for trial by another panel.
For the 1st Respondent, similar reference to the provisions of Section 36 of the 1999 Constitution and the case of OKAFOR .V. A.G. ANAMBRA (supra) was made but it was argued that in determining a litigant’s right, the court must have the requisite jurisdiction to do so by looking at the claim. The case of L.C.D.C. V. A.G. FEDERATION (2002) 14 NWLR (286) 1 @ 28 was relied on by the learned counsel who submitted that the appellant’s claim at pages 6-7 of the record of appeal are all hinged on the election of 21st April 2007 in absence of which the claim would have no sub stratum. It was pointed out by him that four (4) separate petitions were filed before the lower Tribunal in which the petitioners claimed to be the winners of the said election. That the common denominator for the four (4) petitions was the validity of the election conducted on 21st April 2007 without which none of them could succeed.
It was submitted that when the lower Tribunal nullified the election in question in petition NO. EPT/NA/IM/01/07 and ordered fresh election, it became functus officio on the issue of the validity of the said election and consequently had no jurisdiction to entertain any case, purporting to hold the election out as valid. That having determined the germane issue affecting the basis of all the petitions, no ancillary petition could stand any longer because in effect, the res in the petition’s no longer existed. For support the case of CLERK V. IDOZOR (2002) 3 NWLR (754) 308 @ 320 was cited and the situation was likened to issue estoppel. According to learned counsel though Appellant was not a party to the petition in which the issue of the validity of the election was determined, the ripple effect operates to inexorably remove the foundation of his petition and the lower tribunal could not reopen the matter. That the Tribunal took judicial notice of its ruling in the earlier petition under Section 73 of the Evidence Act and so the Appellant could not be heard in his petition.
We were urged to hold that the Appellant could not be heard on the merits because the lower Tribunal had ceased to have jurisdiction to adjudicate on the subject matter, to uphold the decision of that Tribunal and dismiss the appeal.
The issue was agued as issue No. 3 in the 2nd Respondent’s brief. It was submitted that with nullification of the election by the lower Tribunal on 24th August 2007, the Appellant’s petition challenging the result of the said election was no longer capable of proceeding to hearing before the same Tribunal. Further, that the Appellant was not a party to the petition in which the election was nullified or that his petition was not consolidated with it have become mute points and purely academic and so not capable of being entertained by the court. Reliance was placed on the cases of ONOCHIE V. ODOGWU (2006) 6 NWLR (975) 65 @ 99, GOV. KADUNA STATE V. DA (1986) 4 NWLR (38) 687 ALLI V. ALESINLOYE (2000) 6 NWLR (660) 117, ORAKUL RESOURCES V. N.C.C. (2007) 17 NWLR (1060) 270 @ 312.
In addition, it was contended that for the Appellant to succeed in the appeal, he has to show that he was entitled to a hearing in the particular circumstances of the case and was that he denied the opportunity to be heard or that the hearing ne was given was unfair. That the doctrine of fair hearing is not a sleepless and restless ombudsman that is called upon even when the, circumstances do not justify its invocation on the authority of UDEMAH V. NIG. COAL CORP. (1991) 3 NWLR (180) 477 @ 490. Finally, it was submitted that the relief claimed in the appeal is incapable of being granted in the absence of an order setting aside the nullification of the election in question. We were urged to dismiss the appeal with costs to the Respondents.
The Appellants’ Reply brief responded largely to the 2nd Respondents, notice of preliminary objection, Respondent’s notice, which I have already dealt with before now. There is no other relevant reply to fresh points canvassed in the Respondents brief on the issue for determination in the appeal. So a review of the submissions of counsel on the issue is concluded.
The appropriate point to start a consideration of the issue is by way of emphasis on the fundamental and crucial important of the principle of fair hearing in the conduct of all Judicial and even quasi judicial proceedings conducted in every court, tribunal or other institutions created either by the constitution and/or other statutes pursuant to the provisions of the Constitution. The courts have very consistently over the years held that the issue of fair hearing guaranteed by the constitution is not negotiable and goes beyond being a mere personal right only. It is a fundamental right and public policy demands that every person is entitled to a fair hearing in consonance with the ruler of law. That is one reason why in the determination of whether the principle was breached or not in the conduct of any judicial proceedings in particular, the test is always objective, that is, on the opinion of a dispassionate reasonable man watching the proceedings if all the parties were afforded equal opportunity without let or hindrance to present their respective sides of the case to the court. Any breach or absence of a fair hearing in such proceedings automatically vitiate them and render them null and void. This position of the law is now elementary that even without reference to judicial authorities their existence is beyond every shadow of doubt in our judicial administration. Statement and restatement of that principle of law in judicial decisions are countless and adorn almost every law report published weekly, monthly or quarterly in the country. They include: SALU v. EGEIDON (1994) 6 NWLR (348) 23, CEEKAY TRADERS V. G.M. COMPANY (1992) NWLR (222) 132, ATANO V. A.G. BENDEL STATE (1988) 2 NWLR (75) 201, GENERAL OIL v. OGUNYADE (1997) 4 NWLR (501) 613, OKROIBE V. GBOKWE (2000) 14 NWLR (688) 498, ISYAKU v. MASTER (2003) 5 (814) NWLR 443, ALAKE V. ABALAKA (2003) 6 NWLR, (815) 124, EROETA V. WANOGHO (2004) 18 NWLR (905) 394, SOKOTO STATE GOVT. V. KAMDAX (2004) 9 NWLR (878) 345, NEWSWATCH V. ATTA (2006) 12 (993) 144.
In the present appeal, I have recounted the facts and circumstances leading to and in which the Appellants, petition was dismissed as shown in the record of appeal more than once. As a reminder and in brief, when the Appellants’ petition was called before the lower Tribunal on 6th September 2007 for continuation of the pre-hearing session, it was dismissed by the Tribunal without hearing any of the counsel for the parties present at the time but in particular, the Appellants, counsel. Without wastage of verbiage and any difficulty whatsoever, I would say that there was no hearing at all by the Tribunal on that day let alone a fair hearing. What happened in the Tribunal was entirely a one sided affair akin to a military briefing in times of a desperate war. Troops gathered, presence noted, and “war lost” it was decreed.
As demonstrated, after noting appearance of counsel before it, the lower Tribunal suo motu, without any one saying anything just decreed that the appellants’ petition was dismissed because of the judgment in another petition in which he was not a party or afforded a hearing therein. There can hardly be any other brazen way to ignore the Constitutional right to fair hearing than in the procedure adopted by the lower Tribunal. Perhaps I should point out here that that Tribunal’s power to dismiss the Appellants’ petition for whatever appropriate reasons is not in doubt. The Tribunal should however be told or at least reminded that it could not take a decision of far reaching consequence as a dismissal in the Appellants’ petition and which affects his right without first giving him an opportunity of a hearing on it. See AWONIYI V. REGISTERED TRUSTEES, AMORA (2000) 10 NWLR (626) 522, OKOTECHA V. HERWA LTD (2000) 15 NWLR (690) 249, AKHIGBE V. ASHIMEDUA (2003) 6 NWLR (817) 439, JANG v. INEC (2004) 12 NWLR (886) 46, OJUKWU V. OBASANJO (2004) 12 NWLR (886) 169.
Like I mentioned before, there was no hearing at all by the lower Tribunal in the proceedings of 6th September 2007 and so the Appellant was not afforded an opportunity of any hearing at the proceedings before his petition was dismissed. This is clearly a breach of his guaranteed right that in the determination of his legal rights or obligations in proceedings before a court or tribunal, he should be given a fair hearing. What happened on the 6th of September 2007 was a complete denial of a fair hearing by the lower Tribunal to the Appellant before his petition was dismissed. That Tribunal had a constitutional duty and obligation to have invited the Appellant to address it on the effect of the earlier judgment of the Tribunal on his petition before dismissing same on the basis of that judgment. The failure, neglect, omission or refusal to do that before proceeding to dismiss the Appellants’ petition amounted to a denial of fair hearing to the Appellant. There can be no doubt about that.
But that is not the end of the matter when the peculiar facts and circumstances of the Appellants’ petition before the lower tribunal are calmly considered. The peculiar facts are also undisputed facts in this appeal. In other words, the parties in the appeal, that is, the Appellant and all the Respondents are agreed, they are one on the state of these facts and so there is no dispute between them on the facts. The facts include: –
(1) That the Appellant’s petition before the lower Tribunal was on grounds challenging the result ‘on return in the election held on the 21st of April 2007 at the constituency in issue;
(2) That the 2nd Respondent in this appeals also filed an election petition No. EPT/NA/IM/01/07 before the lower Tribunal, challenging the return or result of the said election prior to the Appellant’s petition which was No. EPT/NA/IM/25/07.
(3) That both the Appellant’s and 2nd Respondent’s petitions were challenges to the return or result of the same election and have same subject matter, res or sub stratum
(4) The lower Tribunal had determined the 2nd Respondent’s petition on the 24th of August 2007 and nullified the election conducted on the 21st of April 2007; the foundation upon which both petitions were premised.
(5) That on the basis of the nullification of the election in the judgment of lower Tribunal delivered on 24th August 2007, the Appellants’ petition was dismissed on the 6th of September 2007.
From the above chronicle of facts and events, there would be no serious dispute of the fact that the subject matter in both the Appellants’ petition and 2nd Respondent’s petition, that is, the election conducted on the 21th of April 2007 had been destroyed by the nullification thereof in the judgment of the lower Tribunal delivered on the 24th of August 2007.
The election, which was the res and the sub stratum in the two petitions, was in law and deed rendered non-existent, void and deemed not to have been conducted in the first place. While the decision of the lower Tribunal pends, its effect is that there was or is no longer any election conducted on the 21st of April 2007 in the constituency in question. In the absence or existence of an election, there could not be an election petition under the Electoral Act.
The painful but correct effect of the lower Tribunals’ nullification of the election in law is that the “wind” was taken out of all other pending election petitions challenging the result or return of the nullified election. Such pending petitions may be separate and different in constitution from the one in which the nullification of the election was ordered. It would however be crass technicality and puerile to say that any one or more of them had a subject matter capable of being heard on the merits by that Tribunal. I am in agreement with the learned counsel for the Respondents in this regard that having nullified the election, the lower Tribunal lacked the requisite jurisdiction to hear, and determine the Appellant’s petition on the validity of the said election again. See JOHN ANDY & SONS V. N.C.R.I (1997) 3 NWLR (491) 1.
However as pointed out before now, the complaint of the Appellants is that he was not afforded an opportunity bf a hearing before the dismissal of his petition. No reason was given by the lower Tribunal for the denial of fair hearing to the Appellant before reaching the conclusion to dismiss his petition.
In the very peculiar circumstances disclosed in this appeal no genuine useful legal purpose would or can be served by the nullification of the proceedings of the 6th September 2007 on grounds of denial of fair hearing to the Appellant because the position or decision must have been the same even if he was afforded a hearing on the effect of the judgment of the lower Tribunal in petition No. EPT/NA/IM/01/07 on his petition. Hearing the appellant in the circumstances would not have changed the position of the law that the Tribunal could not determine the return, result or validity of the election it had already nullified again. As a result, no miscarriage of justice was occasioned by the failure to hear the Appellant before the lower Tribunal dismissed the petition No. EPT/NA/IM/01/07 on the 6th of September 2007. The law is that it is not every omission tor hear parties in a case that is fatal to the proceedings unless there is a miscarriage of juristic. See MORA v. NWALUS (1962) 1 ALL NLR 681. ATOYEBI v. GOV. OF OYO STATE (1994) 5 SCNJ 62 @ 84, CITIZENS INT. BANK V. S COA (2006) A LL F WLR (323 1680 @ 1702.
For the above reasons, since no miscarriage of justice was shown by the Appellant to have been caused to him by the failure or omission to hear him before the ruling of 6th September 2007 was delivered by the lower Tribunal, it is not expedient to nullify that ruling on the ground only that he was denied a fair hearing. The facts and circumstances set out in this judgment do not warrant such nullification since the lower Tribunal cannot in law reopen the subject matter of Appellant’s petition which it had already determined in the petition of the 2nd Respondent herein.
In the result my finding is that the relief claimed by the Appellant in the Notice of Appeal; to wit – “an order setting aside the ruling of the trial Tribunal dated 6th September 2007 dismissing the petition and remitting the petition back for hearing and determination by another Panel”, – is incapable of being and cannot be granted for reasons aforementioned in this judgment.
This finding has effectively overtaken and fully taken care of both the 2nd Respondent’s notice as well as the fresh issue raised by the same Respondent, which I have shown to be the same.
On the whole, the appeal is dismissed and accordingly the ruling of the lower Tribunal delivered on the 6th of September 2007 in petition No. EPT/NA/IM/25/07 is hereby affirmed.
In the final result and for avoidance of doubt both appeals No. CA/PH/EPT/400/07 and NO. CA/PH/EPT/464/07 fail and are dismissed hereby. The decisions of the lower Tribunal appealed against in both of them are accordingly affirmed by me.
Each party is to bear their costs of prosecuting the two appeals.
SULEIMAN GALADIMA, J.C.A.: I have had a preview of the lead judgment of my learned Brother GARBA, JCA, just delivered. I agree with his reasoning and conclusion. He dealt exhaustively with all the salient and crucial issues raised in these two consolidated petitions. I wish to express a few observations in my support. To my mind the crucial issue in that petition No. CA/PH/EPT/400/2007 is whether having regard to the issues for determination, the grounds of the petition and available evidence, the Tribunal was right in not applying the provisions of section 147(2) of the Electoral Act, 2006.
The Appellant’s counsel after making reference and setting out sections 145(1) and 147 (2) of the Electoral Act 2006 as well as paragraphs 5, 13 and 14 of his petition at the lower Tribunal, it was submitted that having found that the votes credited to the 1st Respondent were wasted, the Tribunal had no other option in law, but to return the Appellant as the candidate that won majority of lawful votes cast at the election by virtue of section 147 (2) of the Electoral Act. Heavy reliance was placed on the case of MICHAEL v. YUOSUO (2004) 15 NWLR (895) 90 on the interpretation of the provisions of section 136 (2) of the Electoral Act, 2002 said to be pari material with the said section 147(2) of the Electoral Act 2006. It was argued that the facts of that case are on all fours with the Appellant’s case.
Submissions of the Respondents, particularly those of 2nd – 7th Respondents have been that the applicability of section 147(2) of the Act will depend on the reasons for the Tribunal’s finding that a candidate was not validly elected, that is he was not qualified at all to contest an election under section 145 (1)(a) of the Electoral Act, 2006 is different from a finding that such a candidate was not duly elected by the majority of lawful votes cast at the election under section 145(1)(c).
For the 8th Respondent, learned counsel having set out the provisions of sections 145(1) and section 147(1) and (2) of the Electoral Act 2006, argued strenuously that following the settlement of issues by the respective parties, the pleadings no longer defined the issues for trial. He relied on the case of MAXIMUM INSURANCE v. S.A. AWONIYI (1994) 3 NWLR (PT. 331) 178, and contended that with the holding that the election of 1st Respondent was void on ground of disqualification (which was an issue agreed and settled by the parties) the Tribunal was no longer under any duty to go into the validity of the votes. It is further argued that the Tribunal was right to act under section 147(1) to nullify the election and that section 147(2) could only apply where the candidate elected did not score a majority of the valid votes cast at the election. He said that the lower Tribunal did not make any such finding. It was however, contended in the alternative that even if section 147(2) was applicable, the Appellant did not score the highest number of valid votes cast at the election so as to return him as duly elected. Learned counsel submitted that an invalid vote is a vote tainted by corrupt practices exemplified in over voting, stuffing of ballot, awarding of votes, abuse of ballot, impersonation and such other criminal conduct. That that would not be the case of a vote lawfully cast for an unknown disqualified candidate, which is presumed valid until shown to be invalid by evidence. He relied on a number of authorities some of which are DAGGASH v. BULAMA (2005) AFWLR (240) 1337 @ 135` and. BAY0 v. NJIDDA (2004) I NWLR (PT. 576) 544.
To my mind, this is a summation of the submissions of the learned counsel on the issue that calls for determination of the appeal. It is all about the application of section 147(2) of the Electoral Act 2006. This has been set out extenso in the lead judgment. The provisions are plain, clear as crystal and unambiguous. I must ascribe to them ordinary grammatical connotation or meaning moreso in election matters being sui generis. Therefore in their simple clearly empowers the Tribunal or court the discretion and jurisdiction, subject to subsection (2), to nullify an election if it found that the candidate returned as elected was not so validly elected on any of the grounds specified in the Electoral Act on which an election can validly be questioned, Once the Tribunal or Court has determined, decided or held that a candidate returned as elected was not validly elected on any of the grounds set out in section 45(1) of the Act, then the Tribunal or Court had the option, subject to subsection (2) of the Section to nullify or cancel the said election. This discretion is unfettered by the provisions of subsection (2) which imposed a judicial duty on the Tribunal or court where it determined that a candidate returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election to declare as elected, the candidate who scored the highest number of valid votes cast at the election and who has satisfied the requirements of the constitution and the Electoral Act. Refer further to section 145 (1) (c).
Before the provision of subsection (2) can properly be resorted to and applied by the Tribunal or Court, the following three main conditions or requirements must be met or satisfied conjunctively. These conditions are:
(a) That the candidate returned as elected was found not to have been validly elected on the ground that he did not score the majority of valid votes cast at the election;
(b) That there was another candidate who had scored the highest number of valid votes cast at the election: and
(c) That the candidate (b) above also satisfied the requirement of the Constitution and the Electoral Act.
In the lead judgment the fundamental difference between the two subsections has been impressively explained. Once an election has been nullified under subsection (1), it means there would no longer be any results to be declared and returned for any or all of the candidates that contested the said election. Consequently, the only reasonable order that follows such nullification would be one for fresh election. This is to allow the electorates have a second bite at the cherry and not be unjustifiably disenfranchised. However, the Tribunal or Court has no power or jurisdiction to nullify or void the election under subsection (2) but to return the candidate declared and returned as elected. It must have been decided that the candidate was not validly elected on the ground set out in section 145(1) (c) of the Act by declaring as elected, the candidate who scored the highest number of valid votes cast at the election. Therefore only the result declared and returned for the candidate returned as elected would be voided and nullified on the ground that he did not score the majority of valid votes cast at the election.
As it is already noted, section 136 (1) and (2) of the Electoral Act 2002 is in pari materia with section 141(1) and (2) of the Electoral Act 2006. Learned council for the respective parties cited cases on the interpretation of section 136 (1) and (2) (supra). Judicial authorities in which the provisions of section 147 (1) and (2) (supra) were interpreted and applied are not readily available. Hence, this accounts for this painstaking exposition of the above provisions, as we have done, particularly to the lead judgment. By applying these provisions to the instant petition an appeal before us, my learned brother has admirably come to the right conclusion that once a candidate was found not to have been legally and lawfully qualified to have contested an already conducted election the effect is that in law, that candidate, in fact, did not participate or contest the said election. This is what happened to the 1st Respondent in the instant appeal. The lower Tribunal determined that he was at the time of the election in question, not qualified to contest the said election. If so the lower Tribunal could not be expected to have made a finding that he was not validly elected on the ground that he did score the majority of valid votes cast at the election. The lower Tribunal could not have properly acted under the provisions of subsections (1) and (2) of Section 147 of the Electoral Act at the same time in respect of the grounds set out in section 145 (a) and (c) with regard to the same 1st Respondent as a candidate in the election. I agree that it is only where and when a candidate was found qualified to contest the election and, in law, and in fact participated in the contest that could his return ‘as a winner of the election be determined on the ground that he was not validly elected because he did not score the majority of valid votes cast at the election under subsection (2) of Section 147 of the Electoral Act. Once the 1st Respondent was found not qualified to contest the election in the first place, the Tribunal only was entitled to annul the election but has no power to nullify the election under subsection (1) and still proceed to purport to act under subsection (2) at the same time. The Tribunal has power to nullify an election where it determined that the candidate returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election. Beside this, the position of the law on the requirement for the application of subsection (2) where a candidate returned as elected was determined not qualified to hale contested has been correctly stated by the lower Tribunal. It is to the effect that there has to be evidence that before election, the electorates in the constituency concerned k new or were aware of the disqualification of the candidate but still chose to go ahead and cast their votes for the candidate; thus deciding to “waste” such votes at the election. Refer UNCP v. DPN (1998) 8 NWLR (PT. 560) page 90 @ 95. See also DASHE v. BAWA (1989) 1 NEPLR 71 @ page 85 per Muktar, JCA (as he then was). I agree that the germane issue is on knowledge by electorates of the 1st Respondent’s disqualification and that of the other Respondent’s in the appeal. No oral evidence on the fact that the electorate knew of the 1st Respondent’s disqualification before the date of the election was given or adduced at the trial of the petition. In these circumstances there was no evidence upon which the lower Tribunal could rely upon to apply the provision of subsection 2 of section 147 of the Electoral Act 2006 and justify the declaration of the Appellant as the candidate who scored the highest number of valid votes cast at the election.
In view of the foregoing and the full reasons contained in the lead judgment, I too, hereby dismiss the consolidated appeals as lacking in merit with the same order as to costs.
TIJANI ABDULLAHI, J.C.A.: I have had tire privilege of reading in draft the lead judgments just delivered by my learned brother, GARBA, JCA. I entirely agree with him that the appeals ought to be dismissed for the reasons he so ably advanced.
Learned Counsel for the Appellant in Suit No. CA/PH/EPT/400/2007 strenuously argued that the provision of Section 147 (2) of the Electoral Act ought to have operated automatically in favour of the Appellant by declaring the Appellant as duly elected having scored the highest number of valid votes cost at the election and has satisfied the requirements of the Constitution and the Electoral Act.
It is instructive to state at this stage that the learned Counsel missed the point and with due respect to him, the lower Tribunal was perfectly right in holding that the said provision does not apply as can be gleaned from the record of the said Tribunal the election of the 1st Respondent was voided not on the ground that he did not score the majority of valid votes cast at the election, but on the grounds that he was disqualified from contesting the election by an order of a Court of competent jurisdiction.
That aside, learned Counsel made heavy weather of the fact that all the votes credited to the 1st Respondent were wasted votes. Again, with due respect to the learned Counsel, as long as there is no evidence that the Electorate knew of the disqualification of the 1st Respondent, the votes credited to him cannot be regarded as wasted votes. If I may say so on the day of the said election the Electorate went out to elect a candidate of their choice and did express same by casting their votes for the 1st Respondent.
In the case of UNCP v DPN (1998) 8 NWLR (Pt. 560) 90 at 95, this Court held thus:
“Where the winner of an election is disqualified, the candidate with 2nd highest scores will only be returned if it is established by evidence that the electorate knew about the disqualification and still went ahead to cast their votes for the candidate. If the electorate did not know of the candidate’s disqualification, the votes go to naught as the electorates were effectively disenfranchised. In that even a fresh election should be ordered.”
In the light of the foregoing and the more detailed reasons stated in the lead judgment, I too hold the view that the appeals tender consideration lack merit and ought to be dismissed and same are accordingly dismissed. I abide by the order that parties in these appeals shall bear their individual costs.
Appearances
O. OKONI ESQ. (SAN) with K. C. OKEREKE & R. HASSAN AHMED ESQ. for the Appellant in Appeal No. CA/PH/EPT/400/07
N. A. NNAWUCHI ESQ, – for the Appellant in Appeal No. CA/PH/EPT/464/07For Appellant
AND
E- F. NJEMANZE ESQ. for the 1st Respondent in Appeal Nos. CA/PH/EPT/400/07 & CA/PH/EPT/464/07
O. OKONI ESQ. (SAN) with K. C. OKEREKE & R. HASSAN AHMED ESQ. 2nd Respondent in Appeal No. CA/PH/EPT/464/07
C. O. FAGBEMI ESQ., (SAN) with N.O.O. OKE ESQ (SAN) & C. O. AHUMIBE ESQ for the 8th Respondent in Appeal Nos. CA/PH/EPT/464/07 & CA/PH/EPT/400/07For Respondent
