ASSESSMENT OF THE JUDGMENTS OF THE GOVERNORSHIP ELECTION PETITION TRIBUNAL IN SOME STATES IN NIGERIA

CHAPTER FOUR

4.1       Introduction

            Free and fair election in any democratic State remains an index for the assessment of the government. This view is anchored on the fact that the consent of the electorates vests legitimacy on the government. Although, free and fair election may not necessarily guarantee good governance, it still represents the arguable form of government.

            Nigerian democracy since the inception of this republic ( ie the fourth republic) has generally witnessed four main general elections1 An appraisal of the conduct of the election will showcase the level of free and fair election within the period under review. This we shall do by assessing the judgments of the Governorship Election Petition Tribunal in some States in Nigeria. A wholesome appraisal is not within the ambit of this work. Accordingly, some contentions and judicially challenged gubernatorial elections within the said time shall be appraised in the selected State.

4.2       Ekiti State-2007

            The Independent National Electoral commission (INEC) conducted the Governorship elections across Nigeria on 14^th April 2007, Ekiti State inclusive[1]. In this work, we shall report the facts the case which arose as a result of the irregularities alleged by one of the candidates that contested the election. The case in question as it affects Ekiti State is the case of Oni V Fayemi (2008) 8 NWLR (Pt. 1089) P. 400.

Facts: In Ekiti state, Dr. John Olukayode Fayemi, Mr. Olusegun Adebayo Oni and eleven others contested the election on the plat form of their respective political parties. Whereas Dr. Fayemi was sponsored by the Action Congress, Mr. Oni contested the election on the ticket of the Peoples’ Democratic Party (PDP). At the end of the polls, Mr. Olesegun Adebayo Oni having scored 177.780 votes was returned the winner of the election. Dr. John Olukayode Fayemi who polled 108,305 votes came second.

            Dr. Fayemi was dissatisfied with the declared result of the election and return of Mr. Oni and he filed a 159 paragraph petition at the Ekiti State National Assembly and Governorship Election Tribunal2. The petition was predicated on the main grounds that:

“(i)      The 1^st respondent was not duly elected by a majority of the lawful votes cast at the election.

(ii)       The election and return of the 1^st respondents is invalid by reasons of electoral malpractices and non-compliance with the provision of the Electoral Act 2006”[2].

            Details of the electoral malpractices and non compliance as well as the local Government Areas where same took place were catalogued in the body of the petition. The two sets of respondents, the 1^st respondents and the 2^nd-16^th respondents filed their replies to petitioner’s petition. The petitioner subsequently filed replies to the replies of the respondents.

            After the conclusion of pleadings and at the hearing of the petition, the appellant called a total of 77 witnesses including 4 voters, nineteen polling agents and ten electoral officers to establish his petition. The 1^st respondents testified along with fifty-two (52) others against the petition. The 2^nd -16^th respondents called eleven witnesses. Various documentary evidences were admitted in evidence in the course of trial. The petitioner and the 1^st respondent called a host of expert witness who testified in support of their respective cases. It should be noted that the electoral officers called by the appellant testified contrary to his case. They denied that there were any electoral offences during the election.

            At the conclusion of the trial, counsel adopted written addresses of parties. In its judgments, the tribunal concluded that the petitioner filed to prove his petition and consequently dismissed same. The appellant was dissatisfied with the tribunal’s judgment and he appealed to the court of appeal. The two sets of respondents cross-appealed against some of the tribunal’s judgment.

            In the court of appeal, the following issues were raised:

(a)       Whether the Election Tribunal was not wrong in holding that all the named persons that perpetrated electoral malpractices at the election were not shown by the evidence before it to be agents of the 1^st respondent when it was uncontroversial that he was sponsored by the P.D.P and the named persons were also members of the same party, and whether it was necessary to have joined P.D.P in the circumstances of the case to make the 1^st respondent liable for the act of the members of his party that sponsored him for the election.

(b)       Whether the Election Tribunal was not wrong in holding that the appellant did not prove the petition beyond reasonable doubt when there were copious and sufficient oral and documentary evidence before the Tribunal which were neither challenged nor controverted sufficiently or at all and when all the allegation in the petition did not bother on commission of crime and the standard of proof was on the preponderance of evidence.

(C). Whether the Election Tribunal was not wrong when it took unnecessary and extraneous matter into consideration and jettisoned the expert evidence of the appellant’s witnesses on the premise that were not cognizable under the law on the admissibility of expert evidence which were not impugned by any other- evidence or reports before the Tribunal

(d). Whether the election tribunal was not wrong in holding that the appellant did not prove non-compliance and show how it affected the result of the election when the Tribunal itself agreed that the evidence of non- compliance was established especially the total failure of accreditation of voters in the various polling units of the areas contested and glaring non-compliance with the provisions of chapter iii of the Manual for Election 2007.

(e). Whether the Election Tribunal was not totally wrong in embarking on the deduction of the votes of the appellant when there was no cross petition or prayer to that effect and when in doing so it totally misconstrued the case of the appellant by treated invalid votes in a ward for that of a local government and vice versa and also going outside of the pleadings in the process.

      From the above issues, the Court of Appeal arrived at many conclusions or decisions.  However, for the purpose of this work, we shall assess of them (ie. the decisions).

       On the issue of procedure for accreditation in the election process, the Court held that there can only be accreditation of voters for an election if the names of votes in the register had been ticked in “blue” ink to show that the voters had approached the presiding officers who by the act of ticking their names acknowledged and recorded the presence, willingness and readiness to the voters so accredited to vote.  In the instant case, it was perverse for the Tribunal to hold that there had been accreditation an exercise of knowing the number of voters participating in voting, and yet to turn round and hold at the same time that the number of such voters accreditation  could not be inferred from the very execise.4

            By the provision of the Manual for Election of Officials, 2007, the marking of voters accredited shall be done by the use of “blue ink”. In Governorship Election, if non-compliance will substantially affect the results of the election, the election should be treated as a nullity. However, it should treated as minor and incapable of vitiating the contested election, if it does not substantially affect the result of the election5 In this case, most of the electoral officers testified that on the said election, they were not supplied with “blue biros”, and that where supplied, they malfunctioned. Hence, according to them the presiding officers were instructed to make use of any ink available for the accreditation. It should be noted here that the use of other inks other than ‘blue’ is a violation of the Electoral Act6 and Manual for Election. 2007. The Court in Ajadi v. Ajibola7 emphasized that the Election Manual made pursuant to the provision of the Electoral Act 2010 (as amended) are meant to be strictly followed by electoral officers and its contravention constitutes non-compliance.

            The Electoral Act8 creates two instances when non- compliance would lead to nullification of results of an election. An election which would be nullified on the basis of non-compliance must have impact on the result of the election9. The second scenario envisaged under section 139 (1) of the Electoral Act, 2010 ( as amended ) is that election would only be nullified on the basis of either proof of non-compliance or the effect the non-compliance has on the result of the election10. From the record of the Tribunal at page 4285 of the record, it is discovered that the Tribunal was unable to ascertain the number of voters accredited in the challenged areas as well as the Tribunal’s doubt. It is therefore submitted that what the Tribunal would have done is to nullify the election in the contested areas that was in doubt. The Law is very clear on this position to the effect that once there is doubt as to the effect the established non-compliance has on the outcome of the election in the areas under contest, the burden of proof shifts to the respondent to establish by credible evidence that non-compliance has not affected the outcome of the election in the areas in contest. In the instant case, the respondents had woefully failed to discharge the onus and the natural consequence of such failure is the nullification of the result of the election.11

            Accreditation of voters constitutes the root of an election and where it is not done or done poorly would impact negatively on the outcome of the elcetion12. In this case under review, the Tribunal held that there was an accreditation and at same that the number of such voters accredited could not be inferred from the very exercise12. It should be noted that the Tribunal erred when it arrived at above decision. This is because there cannot be accreditation when there is no evidence to prove same. Therefore, any election without accreditation is nullity. Thus, in the case of Buhari V INEC13, it was held that, any election that occurred without accreditation of voters as required by the Electoral Act, is a complete nullity as same have proceeded in complete and flagrant violation of the principles of the Electoral Act which the law itself jealously protects in section 146(1) of the Electoral Act.14

            From the above assessment of the tribunal judgment on this issue, the judgment is an outright miscarriage of justice, little wonder it was reversed by the Appeal Court when the mater went to the Court of Appeal.

            The next issue to be considered here is whether the respondent was not duly elected by a majority of the lawful votes cast at the election. From the fact of the case, Mr Olusegun Oni who scored 177.780 votes was returned as the winner of the election while Dr. John Olukayode Fayemi,15 who scored a total number of 108.305 votes came second. The Tribunal was wrong in not returning the candidate who scored the highest number of votes at the election. This is because, it is the intendment of the law that a candidates with the highest number of votes should be returned, and in this case, the Tribunal did not give any reason while Mr. Oni was returned even when he scored the lowest number of votes cast at the election. Therefore, if a Tribunal from its investigation discovers that there are irregularities in the conduct of an election, the election should be nullified instead of returning the candidate with the lowest number of votes.

4.3       Ondo State: 2007

            The July 25 verdict by the Ondo State Governorship Election petition Tribunal that quashed the April, 2007 re- election of Governor Olusegun Agagu and declared the Labour Party Governorship candidate, Dr Olusegun Mimiko the Governor elect has raised more questions that it sought to answer. Never before has an Election Petition Tribunal’s verdict raised so much dust as that of Ondo State16. It is not as if there is anything special about a Tribunal nullifying an election it considers to be improperly conducted, but if the overall purpose of justice is for the socio-political advancement of society, it would be hard to convince political pundits and legal researchers that this purpose would be served in Ondo State by that verdict. However, the judgment of the Tribunal in that State should be assessed in this work.

            The governorship election in Ondo State was contested between Agagu and Mimiko among other contestants.17 The facts and some of the decision of the Tribunal in the case shall be reported in this work for purpose of assessment. The case in question is Dr. Olusegun Agagu V Rahman Olusegu Mimiko & ors.18

Facts: At the election to the office of Governor of Ondo State, Nigeria held on 14^th April 2007, Dr Rahman Olusegun Mimiko, the first respondent herein contested as the candidate of the Labour Party. Dr. Olusegun Agagu, the appellant herein also contested the election as the candidate of the People’s Democratic Party. At the end of the election, the Independent National Electoral Commission (INEC)19 declared the appellant as the candidate dully elected as governor of Ondo State at the election. The 1^st respondent was aggrieved with the declaration; he therefore filed a petition at the Governorship/Legislative Houses Election Tribunal, Akure, Ondo State.

            The Kernel of the 1^st respondent’s case was that election was not conducted in six local government areas of the State and that he ought to be declared as the duly elected Governor of Ondo State because he scored the highest number of valid votes cast in the other parts of the State where election was conducted.

            The following issues were raised by the Court of Appeal.20

(a)       Whether the Election Tribunal was right when it failed or refuses to strike out the petition or part of the same notwithstanding that some paragraphs of petition were fundamentally defective because they violated mandatory provisions of the Electoral Act.

(b)       Whether the judgment of the Tribunal was not void or invalid in view of participation in the delivery of the judgment by a member who did not take part in the hearing of all evidence of the case.

(c)       Whether the Tribunal was right in its evaluation of the evidence before it and resultant finding nullifying the election in several polling units and Wards in the various Local Government Areas.

(d)       Whether the Tribunal was right in its interpretation and application of section 19, 46 and 50 of the Electoral Act, 2006.21

(e)       Whether the conclusion of the tribunal as to lawful votes scored by the parties was valid and justifiable having regard to the failure of the Tribunal to determine the number of votes affected by the electoral malpractices and improprieties alleged by the 1^st respondents.

(f)        Finally, whether the tribunal was right when it declared the 1^st respondent as the winner of the Governorship election held in Ondo State on 14^th April, 2007.

            In this work, the assessment of the judgment of the Governorship Election Tribunal will be based on the above issues in the State under review. This will be done by stating the judgment of the Appeal Court in the above issues.

            On the first issue, the court held that by virtue of paragraph 59(2) and (5) of the first schedule to the Electoral Act, 2006,22 application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect. And, an application challenging the irregularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.

            In the instant case, at the time the appellant raised the issue of competence of ground in the petition, for the first time, the Tribunal had become bereft of the jurisdiction to entertain the issue having regard to the provision of paragraph 53(2) of the first Schedule to the Electoral Act, 2010 (as amended). It therefore means that the fact that some content of the petition contravened the provisions of the above paragraph, the Tribunal refused to strike same out. The Tribunal must have based its reasoning on paragraph 53 (1) of the first schedule to the Electoral Act, which provides thus:

“Noncompliance with any of the provision of this schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void unless the Tribunal or court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt within such manner and on such terms as the Tribunal or court may deem” fit and just.

From the above provision, the Tribunals and Courts are giving the discretion to determine when noncompliance could render any proceedings void except where there is an express provision to that effect. Therefore the Tribunal was right when it refused to strike out the petition of some parts thereto even when some parts did not tally with the provision of the Electoral Act.23

            Furthermore, the appellant could not complain about the change in the composition of the Tribunal at the earliest stage. He ought to have complained immediately upon the occurrence of the change at the Tribunal. His failure to complain at that stage of the proceeding was a waiver of his right to complain.24 The decision to postpone the argument at the tribunal is fatal. This is because, it is settled principle of law that whenever a preliminary objection is raised as to the competence of the trial Court to hear a matter as in the instants case, such a Court or Tribunal is duty bound to determine the objection, one way or the other, before, examining the substantive case even where the objection is or appears frivolous25. It is my humble submission that the intendment of paragraph 53 of the first schedule to the Electoral Act, 2010 is to enshrine the principle of waiver. What then is waiver? It has been held in Kadu V Alvin26 thus:-

“Where a person having full knowledge of his right, interest, profit or benefits conferred or accruing to him by and under the law be her intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. He should be held to have waived those rights therefore a person will generally not be allowed to complain on irregularity he has himself accepted and condoned”27.

From the forgoing, it should be noted that the Tribunal at the time it entertained the issue of competence of the petition had lost vires to do so

            A community reading of sub paragraphs (2) & (5) of paragraph 53 shows that the objection must be made within a reasonable time and when the party making the application had not taken any fresh step in the proceeding since acquiring knowledge of the defect. The Tribunal is enjoyed to hear and determine the objection before any further step in the proceeding provided the application is brought timely.

            The second issue in this case deals with the composition or change in the composition of the Tribunal which tried the petition. The Election Tribunal commenced hearing on 23^rd October, 2007. The composition of Tribunal on the day was Naburuma, Chairman and Oredola, Okon, Okungbowa and Umar, Members. The constitution or membership of the Tribunal remained the same till 31^st day of January 2008. As of that day 36 witnesses had been called by the petitioner while at least 1128 exhibits had been tendered and admitted. Hon Justice Ordola who commenced the trial of the petition leading to this appeal withdraws from the tribunal on 21^st February, 2008 and did not participate again in the proceeding. Upon the withdrawal, the remaining members continued with the trial and took about 29 witnesses. When the petition came up for continuation of hearing, the existing four judges were joined by Goji J., who then sat with the other members of the Tribunal till the conclusion of the matter.

            Section 285 (4) of the 1999 constitution (as amended) states that, “the quorum of an Election Tribunal established under this section shall be the chairman and two other members.” In the instant case, the chairman and the three members were constant throughout the whole proceeding. Therefore, the tribunal was right when it resolved the above issue against the appellant in the present case. This is so because even without the introduction of Goji as a member of the Tribunal, the quorum of the Tribunal is not lacking as regard members.

            On the third issue, the court held that where more than half of the polling booths or units results of an election are discredited, the Tribunal would be entitled to declare invalid the whole election. In the instant case, the tribunal was right in nullifying the entire result of the wards where the results of ten of the thirteen polling units were tainted by discrepancies.28

            The findings of the Tribunal are impeccable, notwithstanding the argument of the appellant counsel that the Tribunal erred in its judgment when it heavily relied on exhibit 1098 (36) to reach its conclusions. It should be noted that the petitioner at the Tribunal produced relevant voters’ register, which do not bear evidence of accreditation coupled with existence of discrepancies in the entries in electoral document. In this circumstance, the above submission of the appellant’s counsel is not only erroneously but misleading. Little wonder that the tribunal rejected his argument and submission.

            The Tribunal was therefore right to have acted on the exhibits and ballot papers relating to the election in the manner it did because the petitioner took steps to ensure that the voting papers were tied by credible evidence to every unit, Ward and Local Government from which they derived. The postulation of the appellant that the electoral materials merely dumped on the Tribunal respectfully is on the record unfounded.

            The next issue for assessment here is whether the Tribunal was right in its interpretation and application of sections 19, 46 and 50 of the Electoral Act, 200629. The court held that when the provision of an enactment is clear, plain, and unambiguous, as in the case of the above sections of the Electoral Act, it ought to be given its ordinary meaning.30

            A clear reading of these sections shows that the intention of the drafters is obvious. This is because the wordings of these sections are very clear and unambiguous. Therefore the Tribunal was right when it interpreted the above sections using literal method of interpretation31.

            Another important issue to consider is whether the conclusion of Tribunal as to lawful votes scored by the parties was valid. The Court in resolving this issue held that “it is not every misdirection or error in a judgment that will justify the reversal of the judgment by the Court unless the error has resulted or caused a miscarriage of justice in the sense that if the misdirection or lapse had not occurred, the decision of the Court would have been different. In this circumstance, the Tribunal’s error in respect of votes cast in the three units in electoral ward 9 was insignificant or immaterial, having regard to the disparity in the total lawful votes credited to the appellant and the 1^st respondent. It would amount to greater injustice to deny the 1^st respondent his lawful victory at the election on account of the Tribunal’s error to determine the number of votes affected by the electoral malpractice32 It should be noted that even if the Tribunal had credited the votes cast in units 8 and 18 to the petitioner at Tribunal, the first respondent would have hang on his lead. Therefore the error is not substantial and the Tribunal was right when it concludes that the lawful votes scored by the parties were valid and justifiable.

            Finally, on the issue of whether the Tribunal was right when it declared the respondent the winner of election. The Court held; by virtue of section 147(1) and (2)33 of the Electoral Act, 2006, if the Tribunal or Court as the case may be, determines that a candidate who was returned as elected was not validity elected on any ground, the tribunal or the court shall nullify the election. But if the if 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 Tribunal or 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 who satisfied the requirement of the Constitution and the Act. In this case, by the evidence before it, the Tribunal found that the petitioner was not dully elected and returned by the highest number of lawful votes cast at the Ondo State Governorship election held on 14^th April 2007 and that the 1^st respondent scored the highest number of valid votes cast at the election.34 From the forging, the Tribunal was right when it declared the 1^st respondent, as the candidate dully elected the election.

4.4.      Edo State 2007

            The judgment of the Court of Appeal, sitting in Benin City, in respect of the appeal form the Edo State election Tribunal judgment that lied with it, the judiciary has once again demonstrated that it is the custodian of the nation’s nascent democracy and the last bastion of the people’s rights. It demonstrated this in its Land mark judgments in the wake of the series of arbitrary administrative decision by INEC that sought to abridge some of the citizens’ rights to aspire to public political service. We shall state the facts of the case and some of major issues raised and resolved by the Tribunal. This we shall do by reporting the case from the Appeal Court. The case under view is the case of Osunbor v. Oshimhole35

FACTS:

            The gubernatorial election in Edo state was contested by the 1^st petitioner36 under the platform of Action congress (Ac) now Action congress of Nigeria (ACN) and the 3^rd respondent37 under the platform of Peoples Democratic Party (P.D.P). The 3^rd respondent was declared and returned as winner of the election. Aggrieved, the petitioner filed a petition at the Governorship and Legislative Houses Election Tribunal sitting in Edo State challenging the election on the grounds that the election was invalid by reason of corrupt practices; that the 3^rd respondent was not duly elected by majority of lawful votes cast; that the election was characterized by non-compliance with the provisions of the Electoral Act, 2006. He prayed that the Tribunal determine inter alia that, the election was marred by corrupt  practices, the 3^rd respondent was not duly elected and did not score the lawful majority of votes cast and that the election suffered from non-compliance with the Electoral Act. He further sought orders declaring the 1^st petitioner as the winner of the Governorship election and compelling the 1st and 2^nd respondents to present to the 1^st petitioner, certificate of return as the validly elected Governor of Edo State. The 3^rd respondent filed a preliminary objection to the petition challenging its competence. The 2^nd respondent also filed a preliminary objection challenging the competence of the Tribunal to hear the petition. The tribunal overruled the objections.

            Aggrieved, the respondent appealed to the Court of Appeal. The Tribunal thereafter upheld the petition and declared the 1^st respondent as duly elected Governor of Edo State. Yet aggrieved, the 3^rd respondent field an appeal at the Court of Appeal. The 1^st and 2^nd respondents also filed separate appeals against the judgment.

            The following are some of the issues to be considered in this case. The judgment of the Tribunal on these issues will also be assessed.

1.         Whether the petition was signed as required by law.

2.         Whether the Tribunal was right to hold that the scores of the candidates at the election were reflected in the petition.

3.         Whether having struck out the 23^rd-24^th respondents38 on the grouped that they are non-juristic persons the Tribunal was right to hold that the averments relating to them in the petition could not also be struck out?

4.         Whether the tribunal pre-judged the substantive petition at the interlocutory stage of the proceedings?

            On the issue of signature the respondent urged the Tribunal to strike out the petition because it should have been signed by the petitioners themselves or one of the six counsel whose name was listed at the foot of the petition. Paragraph 4(3) (b) of the Electoral Act39 provides that any election petition shall be signed by the petitioner or all petitioners or by their solicitor  if any, named at the foot of the election petition. In this case, the signature in the petition was that of junior council in the chambers who was authorized by one of the senior Advocates in the chambers to sign the petition. Therefore, the respondent contention that it was not dully signed as required by law in wrong.

            Accordingly, the Tribunal found that none of the deponents claim to know the signature of any of the six senior advocates whose name were listed at the foot of the petition. It should be noted that there is no deposition that the deponents had never seen any of them write his signature or that they are familiar with of any of them. So there is nothing to convince the Tribunal that the signature on the petition is not that of one of the senior counsel. It is he who asserts that must prove. From these findings, the Tribunal held that there is a signature. In Ibrahim v sherift40, where only one out of three petitioners signed the petition, the court of Appeal held that, it was proper. It went further to hold that the only situation where a petition can be stuck out is when it failed to comply with the provision of paragraph 4(3) (b) of the first schedule to the Act.

However, even if the petition was signed by any of the six senior counsel but by a junior counsel in any of other chambers with the authority of the senior advocate, there has been compliance with the above paragraph of the first schedule to the Electoral Act. It is this conclusion that the respondents are challenging in the Appeal Court. Independent National Election Commission and its officers argued that the Tribunal presumed facts not based or supported by any legal evidence or the Law of Evidence and made an unsolicited defence for the petitioner.

            Therefore, the Tribunal was right when it held that there was a signature. This is because a junior in chambers can be authorized by a senior to sign a document on his behalf as in this case. Also, the question of who actually signed the petition a question is a question of fact and not law, thus, it is incumbent on the respondents to prove that none of the solicitors listed at the foot of the petition signed the petition. It should be noted that they failed to discharge this onus. According to the Tribunal:

“we are satisfied that the petition was signed. In case we are wrong however, and in view of the Decision in Dalhatu v Dikko41, we shall tread that path of caution and hold that even if the petition was not signed by any of the six senior counsel but by a junior counsel in any of their chambers with the authority of the senior advocate, there has been compliance with paragraph 4(3) (b) of the First Schedule”.

            Also, the Tribunal is right because it will amount to doing justice by technicality if the petition in this case was struck out or dismissed as prayed by the respondent because it was not signed by one of the senior advocates, who names are listed at the foot of the petition. The days of justice by technicality which is as bad as an injustice are over. Justice by technicality has long died in Nigeria for good and has since been buried. The trend these days is to strive to do substantial justice on the merit of each case.

            On the second issue, the respondent that is the appellant at the Appeal Court informed the Tribunal that the petition did not state the scores of the candidates who participated at the Governorship election in Edo State contrary to the Electoral Act42, the tribunal held:

“There is no misgiving that the 1^st petition was the AC sponsored governorship Candidate in the same way as the 3^rd respondent was the candidate sponsored by the 4^th respondent (P.D.P) for the governorship post. The emir stating that A.C. Governorship candidate was the 1^st respondent and scored 197, 427 votes, can in our view, be cured or corrected either by an application to amend or by evidence at the learning. In our view and from the state of the pleading in this petition, the respondents cannot claim to have been misled by the avoidable error in paragraph 12 of the petition which we believe was due to the inadvertence of the counsel who directed the petit on. The mistake of counsel should not be visited on the petitioners. We are satisfied form paragraphs 11,12, and 15(1) of the petition that the scores of candidates who participated in the Governorship election in Edo sate are pleaded as indicated and tabulated in paragraph 12A-M. There is therefore substantial compliance with paragraph 4(1) (c) of the first schedule”.

            A critical look at the petition shows that the respondent’s contention was without basis because in its paragraph 11, 12, and 15(1), they stated the scores of all the candidates/parties that participated in the said election. The issue clearly lacks merit; apart from what are clearly mistakes in paragraph 12 of the petition the respondents appear to have lost sight of the fact that it is the Electoral Act 2006 that is in operation when this case was decided not that of 2002. The distraction between a party and its candidate is certainly not as clear cut as it was under the 2002 Act. This position was highlighted by the Supreme Court in the celebrated case of Amechi v. INEC43 where in construing section 221 of the 1999 constitution (as amended) held as follows:

“Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties, if as provided in section 221 of the 1999 constitution), it is only a party that canvasses for votes. It follows that it is the party that winds election. A good or bad candidate may enhance or diminish the prospect of his party in wining but at the end of the day, it is the party that winds of loses an election”

            From the forgoing, it will obviously fly against the prevailing trend for the tribunal to accede to the respondents’ contention that the petition should be struck out because the petitioners stated the scores of the parties and not of its candidate. Therefore the tribunal was right in its judgments when it refused to strike out the petition Moreover, stating that the 1^st petitioner is the 1^st respondent and that PDP is the 3^rd respondent in paragraph 12 of the petition is not a fundamental error, and the Tribunal was right to hold as it did.

            The third issue identified for assessment is the judgment of the Tribunal on the issue number 3 (three). On this issue, the Tribunal considered the proviso to section 144(2) of the Electoral Act, 200645 which stipulates that:

“A person whose election is complained of is in this Act, revered to as the respondent, but if the petitioner complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, such officer or person should for the purpose of the act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party, provided that such officer or person is shown to have acted as an agent of the commission, his mis-joinder as aforesaid will not on its own operate to void the petition if the commission is made a party”. (Emphasis mine).

            The Tribunal struck out the 23^rd-214^th respondents, who were an amalgamation of presiding officers from different polling stations, against whom different allegations about the conduct of the election were made. But refusing to strike out the averments relating to them, the Tribunal held that “by the proviso to section 144(2) of the Electoral Act, 2006, the non-joined of the presiding officer of all the polling stations will not and cannot operate to void the petition”. This is because they are presumed in Law and in fact to have been joined or are deemed joined as respondent once INEC itself is made a party in the petition. This is because they are the agents of INEC in the said election. The presumption of their joinder is irrefutable, once they are shown to be agents of INEC which itself has been sued. It should be noted that the proviso to section 144(2) of the electoral Act, 2006 cured the mischief in section 133 (3) of the Electoral Act, 2002. It was the absence of this provision in the Electoral Act, 2002 that called the striving out or outright dismissal of several meritorious petitions after the 2003 general election.

            The reasoning and conclusion of the Tribunal cannot be faulted, because the proviso to section 144(2) of the electoral Act 2006 in clear and unequivocal that electoral officers, presiding officers and returning officers are agents of INEC and as long as INEC is a party to the petition. Therefore, the Tribunal was when it held as it did.

            As a collorary, the 1^st respondent complained that the 76^th respondent is not a juristic person and ought to have been struck. It is hereby submitted that the Tribunal is right; listing the 76^th respondent as East West LGA instead of Esan West LGA is merely a typographical error and it is an error that can be easily amended even on oral application44

            The last issue for determination is whether the Tribunal prejudged the substantive petition at the interlocutory state of the proceeding. The 3^rd respondent contended that the core issue which the parties submitted for adjudication was decided by the Tribunal in its ruling of 4^th July, 2007 on the preliminary Objection.

            As a general rule, it must be stated succinctly that live issues in a case must be left for the substantive trial of the suit. If lives issues are tried at the interlocutory stage, there will be nothing left for the trial at the substantive hearing of the suit45. In this case, the 3^rd respondent appears to be making a mountain out of a molehill. This is because the Tribunal or any Court whatsoever has a duty not to determine substantive issues at the stages of considering an interlocutory application46.

            However, in this case, no pronouncements were made by the Tribunal on any live issues at that stage when it was considering the preliminary objection. The judgment shows that it was when resolving the issue of non-joinder of necessary parties as respondent. Therefore, the Tribunal was absolutely right when it interpreted the paragraphs of the petition at that stage. This is so because, the Tribunal merely analyzed some paragraphs of the petition to see whether they should be struck out or not. There were no pronouncements and no findings were made by the Tribunal on the merit or otherwise of the allegations contained therein. All it said were that some of the paragraphs allege corrupt practices, which should be looked into at the trial and it struck out those that it could not look into.

4.5       Sokoto state

            The way and manner in which elections are being handled in Nigeria is viewed differently by Nigerians depending on their level of education, their understanding of legal issues, or even their status in life47. This may be the reason why people tend to be surprised why certain Courts decisions on similar matters differ, hence leading to so much confusion. It is this confusion that the present writer is trying to clear on how the legal tussle in sokoto State unfolded. This is to enable all the interested parties to have a general understanding of the whole situation.

            The legal battle over the seat of Sokoto State Governorship between the candidate of DPP ALhaji Muhammadu Maigari Dingyadi and Alhiji Magatakarda Wamakko of PDP, began immediately after the April 14, 2007 gubernatorial election. The DPP immediately after the election contest the result at the Sotoko Election Petition Tribunal, contesting among other things the qualification of PDP’s candidate to contest the election for multiple nominations. Lack of proper membership of the PDP and lack of a valid running mate. The case under review here is Alh. Muhamadu maigari V Aliyu Magatakarda Wemakko48

Summary of the facts. The 1^st Appellant, Alhaji Muhammadu Maigari Dinyyadi contested the election of 14 April, 2007 into the office of the governor  of Sokoto State, as a the candidate of Democratic People’s Party (PDP), he scored the second highest number of votes but was not satisfied with the result of the election and consequently filled a petition before the governorship  and Legislative House of Election Tribunal, sitting in Sokoto State challenging the declaration and return of the 1^st respondent, Aliyu Magatakarda Wamakko as the winner.

            Under paragraph 12 of the petition, the appellants pleaded invalidity of the election by reason of corrupt practices and for non-compliance with the provisions of Electoral Act, 2006, and INEC’s Elections Manual/Guidelines.

            In a considered nulling on the October, 2007, the Tribunal dismissed the petition for failure to meet the required standard of evidential proof because the provisions of paragraph 16 of the 1^st schedule  to the Electoral, 2006 have not been validly invoked.

            From the foregoing facts, the issue following issues can be arrived at:

(1)       Whether the trial Tribunal was right when it struck out the appellants reply in answer to the respondents reply to the petition and discountenanced all the evidence of witness statements on Oath, list of document and the document tendered in respect  thereof (Ground 1 and 2  of the Notice).

(2)       Whether the trial Tribunal had jurisdiction to reopen, revisit and reverse itself on an issue where of it had previously delivered a decision (Ground 3 of the notice)

(3)       Whether the qualification of the 1^st respondent to contest an election can only be determined exclusively with reference to section 177 of the 1999 Constitution (Ground 7 and 8 of the Notice)

(4)       What is the effect of the breach of sections 34, 36 and 38 of the Electoral Act,49  2006 on the nomination of the 1^st respondent to contest election on 14 April 2007 (Grounds 9, 10, 11 and 14 of the Notice).

(5)       Whether the issue of nomination and substitution of a candidate fall within the Jurisdiction of the Tribunal among other issues not raised here.

            The judgment of the Sokoto Sate Governorship Election Petition Tribunal in this case will be assessed on the above issues.

            In the first issue, we shall consider the purport of paragraph 16 of the first schedule to the Electoral Act, 2010. It provides:

“If a person in his reply to the election petition raises new issues of facts in defense of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry within five (5) days form the receipt of the respondent’s reply, a petitioner’s reply is answer to the new issues of fact”

            From the provision of the above paragraph, if there is an introduction of new issue of facts by any person in the defence of his case which the petition has not covered, the petitioner must file a reply within five days upon the receipt of the reply of the respondent. Failure to do so, the Tribunal will treat such issue as having been abandoned by the person. In the instant case, it was evident that the 3^rd to 43^rd respondents did not adduce evidence in support of their pleadings within five days as provided by the Electoral Act. The Tribunal held that the pleadings are deemed to have been abandoned by this act of the above respondents. It should be noted that the Tribunal was right when it arrived at the above decision.

            However, the Tribunal was wrong when it refuses the prayer of the appellant that is the petitioner in the Tribunal that the 3^rd to 43^rd respondents reply which was deemed to have been abandoned be struck out and dismissed on the ground that the issue or issues formulated by this set of respondents stand until after their consideration.

            It should be noted that there cannot be an issue for consideration formulated by a party that has abandoned his pleadings. The issue so formulated has nothing to hang on where a defendant abandons his pleadings he is taken as having thrown in the towel and as having admitted the allegations against him in the statement of claim.

            In Sampson Ajihade v Mohowa & Anor50, where the 1^st  defendant failed to adduce evidence in support of his pleading denying negligence and the 2^nd defendant who did not file a defence was refused a hearing by the trail Court. The Supreme Court held that

“Having regard to the  appellants undenied pleading and his unrebutted and unexplained evidence showing that the 2^nd defendant was prima-facie negligent the  learned trial judge ought to have found the 1^st defendant liable for negligence..”

           

In the instant case, the Tribunal ought to have struck out the 3^rd to 43^rd respondent’s reply having rightly found that no evidence was led in respect thereof. If that has been done, the Tribunal would have discovered that the evidence led by the petitioner in respect of the allegation against those respondents stand unchallenged, uncontradicted and uncontroverted. In this circumstance, the Tribunal would have found for the petitioners in respect thereof. It should be noted that evidence offered in support of undenied averments in pleadings must be believed.51 It should also be noted that paragraph 16 (a) of the first schedule to the Act forbids the introduction of new issues tending to amend or add to the contents of.

            By way of summary, the trial Tribunal was right in treating the reply as having been abandoned. It however failed or refused to strike out the reply based on wrong assumption that issues formulated by parties can stand alone without their pleadings. This is patently wrong and not in accord with the principles of law governing pleadings. The tribunal was also correct in its definition of “an Issue” but it was manifestly wrong in its application to the facts of this case.

            On the second issue, that is whether the Tribunal had the requisite jurisdiction when it revisited, reopen and reversed itself on issue it had previously delivered a decision. This law is to the effect that when a decision has been delivered by the Court on any issue before, such Court lacks the jurisdiction to reopen, revisit and reverse itself on that issue. Therefore, the Tribunal was wrong and thereby acted without jurisdiction when it reopened and revisited the issue of divisibility of documents frontloaded with petitioner’s replies, after earlier objection to the same had been overruled in the course of trail.

            The next issue to be considered is the qualification of the 1^st respondent to contest an election, that whether it can only be determined by the provision of the 1999 Constitution. The constitution provides as follows: a person shall be qualified for election to the office of the Governor of a State if

(a)       He is a citizen of Nigeria by birth

(b)       He has attained the age of thirty five years

(c)       He is a member of a political party and is sponsored by that political party, and

(d)       He has been educated up to at least School Certificate or its equivalent52

            The issue of qualification is constitutional and any other law other than the constitution is subsidiary to the constitution53 It should however be noted that the issue of qualification cannot only be determined under the 1999 constitution, it can also be determined under the Election Act, 54 but not with respect to nomination of candidates therefore, the learned members of the Election Tribunal erred in law when they held at Page 42 of their judgment that the Electoral Act did not provide for qualification to contest, but that it is section 177 that provided for same and so held that invalid nomination cannot be ground for election petition under section 145 (1) (a)55  of the Electoral Act, 2006.

            This is so because there was an incontrovertible evidence of double nomination contrary to the Electoral Act56 which renders the nomination of the 1^st respondent void. It should be noted that where an act is void abi nitio, it cannot and will never be made a subsequent act, even if subsequent act is valid57 A poll can only take place amongst persons who remain validly nominated candidates, where a candidate has not been validly nominated he cannot stand for an election and if he contest an election, it will amount to non- compliance with the Election Act,58 and where the candidate is returned as winner as in the instant case, the non-compliance became substantial enough to warrant a nullification of the election.

            Another issue for determining the purpose of assessment is, what is the effect of the breach of sections 34, 36 and 38 of the Electoral Act, 2006 on the nomination of the 1^st respondent. The effect of the breach of the above section is that any matter contained therein will be made not justifiable thereby making the Tribunal to lack jurisdiction to entertain the matters related thereto.

            However, it should be noted that the issue of double or multiple nominations touches on the qualification of candidate to contest an election under the Electoral Act and it is justifiable before an election tribunal59.

            From the foregoing, the Tribunal erred in law and misinterpreted the ingredient of double nomination to warrant an order voiding nomination under section 38 of the Electoral Act when it held at page 57 that;

“There has to be proof of membership of two political parties” in addition to proving that the 1^st respondent knowingly allowed himself to be doubled nominated, and at page 60 that electorate also voted him under those political parties at section 38 of the Electoral Act, 2006 might became justifiable before the Tribunal”.

And thus, held at page 60 that the complaint under section 32, 34, & 38 are not justifiable before the tribunal.

            The last issue that its judgment will be assessed here is whether the issue of nomination and substitution of a candidate fall within the jurisdiction of the tribunal. The issues of nomination and substitution of candidates are pre-election matters which by their nature cannot be ventilated before an Election Tribunal in Nigeria.60  It is indeed the jurisdiction of ordinary Courts to decide pre-election matters and which jurisdiction is unimpaired by virtues of section 178(2) and 285(2) of the 1999 Constitution (as amended).

            In the instant case, it was submitted that the appellants are not member of PDP and that since the issue of nomination and substituting are intra-party issue, the appellants have no locus to bring the petition.61 Therefore the Tribunal was right when it declines jurisdiction to hear the issue of nomination and substitution of the 1^st respondent, the above decision is also based on the fact that the issue of validity or otherwise of nomination of the 1^st respondent is not cognizable under section 139 (1) of the Electoral Act, 2010 (as amended).62

4.6       Rivers State- Amechi v INEC63

            The year 2007 was to be another year (The earlier ones being 1999 and 2003), thus ushering in the third transition of democratic rule in the fourth Republic. As it is always the case, parties in turn sponsored candidates (as provided by the Constitution) for elections in line with the laws of the land, particularly, the electoral Act, 2006 and ultimately the 1999 Constitution of the Federal Republic of Nigeria.

            In Rivers State,64 things went away. Here, in this state, the name of the candidate who won overwhelmingly at the party’s primaries was inelegantly substituted with the name of a total stronger and an abysmal loser. This generated untoward furore in the polity. Expectedly, this matter was litigated upon. After an unfortunate and time wasting court case in the words of the supreme Court of Nigeria, the supreme Court unanimously (seven justices) in a landmark judgment, held that the purported substitution was unlawful. The supposed substitution was set aside – so, on the 25^th day of October, 2007, the apex Court in its judgment, shockingly pronounced the candidate Rt Honourable Rotimi Chibuike Ameachi who was purportedly substituted by his party, Peoples Democratic Party (P.D. P)) and who never contested the election of Governorship of River State of Nigeria, the Governor of Rivers State.

            The judgment, novel in the annal of the nation’s political history, sent ripples across the land anxiously enough, the Court did not give reasons for its judgment – it reserved it on 18^th of January, 2008. Happily, the Court has lived up to its promise. Now this work assesses this epic judgment from the trial Court points of view with a view to discovering whether or how far the judgment is in consonance with the law It should however be noted that this case was not heard by the Tribunal being a pre- election matter.

Summary of facts of the case:

            The appellant (Rotimi Amechi), a member of the Peoples Democratic party (P.D.P) was one of the eight candidates who contested the primaries for nomination as PDP candidates for the Rivers State Governorship election scheduled for the 14^th day of April, 2007. The result of the primaries shows that the appellant polled 6,527 votes out of a total of 6,575 votes. The second respondent (Celestine Omehia) did not contest at the primaries. Pursuant to the primaries, the P.D.P (the third respondent forwarded the appellants name to the Independent National Electoral Commission (INEC) the state on 14 the December, 2006. INEC subsequently, published the petitioner’s name as P.D.P. candidate for the State. Soon after, rumour became rife that the appellant’s name was about to be substituted. The appellant went to Court to stop P.D.P from substituting his name or disqualifying him except in accordance with the provision of the Electoral Act, 2006.

            Subsequently, on the 2^nd of February, 2007, the PDP sent the name of the 2^nd respondent to the INEC as its gubernatorial candidate in substitution for the appellant. INEC effected the substitution. The reason for this substitution was that the name of the appellant was substituted in error. The substitution was done during the pendency of the appellant’s suit. The appellant as plaintiff approached the Federal high court Abuja65 by writ of summons, and in his amended statement of claim, claimed the following declarations and an order of perpetual injunction. A declaration that the option of changing or substituting a candidate whose name is already submitted to INEC by a political party is only available.

(i)        To apolitical party and/or INEC under the Electoral Act, 2006, only if the candidate is disqualified by a Court order.

(ii)       A declaration that under section 32(5)66 of  the Electoral Act 2006, it is only a Court of law, by on order that can disqualify a duly  candidate of a political party whose name and particulars have been published in accordance with season 32(3)67 of the Electoral Act, 2006.

(ii)       A declaration that under the Electoral Act, 2006, INEC has no power to screen, verify or disqualify candidate once the candidate’s political party had done its own screening and submitted the name of the plaintiff or any candidate to the INEC.

(iv)      A declaration that the only way INEC can disqualify, change or substitute a duly nominated candidate of a political party is by a Court order etc.

            It is instructive to state that the prayer above is stated because as we shall later, the jurisdiction of the supreme Court to entertain this suit on further appeal later became an issue. And it is trite law that, it is a claim before a trial Court that determines the jurisdiction of an appellate Court. It was also contended by the learned senior Counsel for the respondents, that having not been asked by the appellant, the apex Court should not and cannot give unto a party what was never prayed for.

            From a careful reading of all the issues by the parties68 for determination, the central issue to be assessed is whether or not the trial Court was correct in its conclusion that the reasons given by the Peoples Democratic party (P.D.P) for substituting Amechi with Omehia satisfied the requirement of section 34 of the Electoral Act, 2006.69 This is the substratum of the entire case.70The section provides:

“A political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election: any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons; except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection of this section”.71

A careful examination of and constitution of the above section will show that the reasons “error” given by P.D.P to INEC for the substitution of Omebia for Amechi was wrong.

            It is noteworthy to state that in constructing the said section 34, Electoral Act, 2006, resort must be had to similar interpretation in the case of Ugwu V Ararume.72  In this case the Court considered the issue whether or not the reason “error” satisfied the requirement of section 34 of the Electoral Act, 2006 in a situation where engineer Ugwu who came 16^th in the P.D.P primaries for the Governorship of Imo State was substituted for senator Ifeanyi Drarume who came first. The Court per Nikki Tobi examined the section extensively:

“Taking section 34 (2) in the context of primaries in particular, I have no doubt in my mind that the subsection is not only important but has an imperative content; considering the general objective intended to be secured by the 2006 Act. If is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it takes, without any corresponding excise of due process on the part of an aggrieved person”.

            If a section of a statute contains the mandatory word, “shall” and it so construed complying with the provision follows automatically. The subsection provides that there must be cogent and verifiable reasons for substitution of the part of the 3^rd respondent. This places to a burden on the 3^rd respondent, not only to provide reasons but such reasons must be cogent and variable. If no reasons are given, as in this case, not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied and therefore interpreted against the 3^rd respondent in the way it has been done in this judgment.

            From the forgoing, it should be noted that the tiral Court erred on the point of law when it arrived at the conclusion that there was cogent and verifiable reasons by INEC for the substitution of the appellant

            Another issue for determination is whether an ordinary Court has jurisdiction over pre-elections matter. In the case under review, the apex Court dichotomized between a pre-election, matter and an election matter for the purpose of determining whether a suit is merely an academic exercise. The court decided that a pre-election matter cannot be said to be one of mere academic exercise. On the contrary, it is a live issue. The Court of Appeal in its majority judgment, failed to consider this issue as whether an ordinary Court can entertain pre- election matters.

            The jurisdiction of Court in pre- election matter  is sacrosanct and the holding of an election when an action relating thereto was pending would not deprive the ordinary Court of its jurisdiction to conclude the matter even to the Appeal Court.73 In other words, the ordinary Court has jurisdiction to adjudicate in pre-election matter where elections are held before the judgment of the Court hearing the suit. The fact that elections are held subsequent to the commencement of the suit in pre-election would not preclude the court form exercising jurisdiction derived under the Constitution of Nigeria74

            The issue of whether or not a candidate of political party has been properly substituted for another candidate is within the jurisdiction of the Courts. In the instant case, the issue between the parties being that of substitution, the Courts had jurisdiction.75

            The Electoral Act76 specifically takes care of pre-election matters. It provision which is jurisdictional in nature specifically vests in a State of Federal High Court power to disqualify any candidate who is otherwise disqualified by virtue of the reasons given in the petition without recourse to the Election Tribunal which is specifically set up and vested with original jurisdiction to hear and determine petitions as to whether anybody has been validly elected to the office of the Governor of Deputy or as a member of any Legislative House.77 It is well settled that an election petition Tribunal is not an all purposes Tribunal or Court that can entertain all sorts of claims for reliefs; it is created for an election matters alone78.

            Also by virtue of the 1999 Constitution,79 circumstances of disqualification like non resignation of a candidate who had been employed in the public service of either the Federation or of a State and membership of a secret society are pre-election matters which must be dealt with in either the Federal or State High Court election. So the appellant in this case under assessment was right when he approach the Federal High his substitution with another person.

            Also, Section 138 (1) (a) of the Electoral Act, 2010 (as amended) sets out the grounds on which any election can be questioned. Those grounds do not include pre- election matters.

. The ground recognized for the purpose of presenting an election petition is acts or omissions that are contemporaneous with the conduct of the election. Election Tribunal has no power to investigate matters which took place before the conduct of an election.

4.7       Osun State: Aregbesola V Oyinlola80

Issues:

1.         Whether the Tribunal was right when it rejected in evidence a certified true copy of the police Final Security Report on the Governorship Election in Osun State dated 28/4/2008 on the ground that same was stamped “secret”, thereby causing a serious miscarriage of justice.

2.         Whether the tribunal was right when it returned the petitioner as the winner of the election.

3.         Whether the petitioner/appellant was entitled to a grant of stay of proceedings of the Election Petition tribunal.

4.         Whether leave to appeal required when complaint of appellant on ruling appealed against is on wrongful admission or rejection of evidence.

            In Nigeria, gubernatorial elections were held on the 14^th day of April 2007 to fill the offices of governors for all the states in the country. The elections were conducted by the INEC. The petitioner and the 1^st respondent contested the election for Osun state. The Peoples Democratic Party) PDP) fielded Chief Oyinlola, while the Action congress (AC) fielded the Chief Aregbesola.

            At the conclusion of the election, the 4^th respondent (INEC) credited Chief Oyinlola with 426, 667 votes and Aregbesola with 240, 722 voles and thereby declared Olagunsoye Oyinlola- the respondent in the appeal the winner of the election.

            Rauf Aregbesola and others were dissatisfied with the rectum of Oyinlola as winner of the election and filed a petition against same on the 11^th day of May, 2007, at the Governorship and Legislative Houses Election Tribunal, sitting in Osogbo, challenging the declaration of Oyinlola as the Governor of Osun State. Chief Oyinlola through his council duly filed replies to the petition. After pre-hearing formalities, trial commenced on 3/10/2007.

            In a unanimous judgment delivered on the 15^th day of July, 2008, the five-man Tribunal entered judgment against Rauf Aregbesola and Confirmed Chief Oyinlola as the dully elected and  Governor of Osun State. It is on this dissatisfaction that we are going to assess the judgment of the Tribunal on the above is issues.

However, before assessing the issues above, we shall first determine the power of the Tribunal to declare as winner the candidate with the highest number of votes cast at the election. Sections 134, 179, and 285 of the 1999 Constitution (as amended) entrusted the power of the Court of tribunal to declare winner of an election. The power of the Court or Tribunal is constitutionally given and carries with it the power to justice in every case.

The Electoral Act is apt. it reads:

“If the tribunal or the court determines that a candidate who was returned as elected as not validly elected on the ground that he did not secure the majority valid votes cast as the election, the Election Tribunal or the court, as the case may be, shall declare as elected the candidate who secured the highest number of valid votes cast at the election and satisfied the requirement of the constitution and by Act”81

            Section 140(3) of the Electoral Act, 2010 (as amended) has a nexus with section 138(1) of the Electoral Act, 2010 (as amended) section 138(1) (c) states. “That the respondent was not duly elected by majority of lawful votes cast at the election. The proper verdict where a Tribunal or Court finds that a candidate returned was not validly elected is to declare the petitioner who scored the highest number of valid votes cast and fulfilled the constitutional requirement and the Electoral Act. The above position was affirmed by the Court of Appeal on the construction of section 147(2) of the Electoral Act, 200682 n the case of Ejiogu V Irona.83 Therefore, the tribunal was right when it returned the respondent as the winner of the election on the ground that he scored the highest number of votes cast at the election form the record of INEC. Whether there was compliance with the requirement of Constitution and the Act or not will be considered in the assessment.

            The first issue to be considered here is whether the Tribunal was right when it rejected in evidence, the certified true copy (C.T.C) of the police Final Report. A document “rejected” cannot be again admitted in that trial. Put in another way, once a document is marked “rejected”, it stays rejected for the purpose of the trial in which it was marked “rejected” and the defect cannot be curried during the said trial84. By the provision of the Evidence Act85, public document are documents forming the acts or records of the public officer, legislative and executive, whether in Nigeria or elsewhere. In instant case, the police Final Security Report on the Governorship election in Osun State qualifies and should be treated as one. By the provision of section 104 of the Evidence Act, 2011 (as amended), a certified true copy of a public document become admissible under section 105 of the act as proof of the contents of the original.86 Once a public document is signed and certified as required by section 101 and 103 of the Act, it becomes admissible on production and it is not necessary to call witness to prove custody or to verify the document. Such a document can be tended from the bar by counsel who produces it. This is because court presumes such a document to be genuine under section 104 (1) & (2) of the Act87. It should be noted that once a document is certified, the Court ought to accept the authenticity of its content.88 It should further be noted that issue of evidence marked “secret is usually the affair of the State.

            From the forging, the learned judges of the Tribunal erred in law in rejecting in evidence the certified true copy of the f Final Security Report of the Nigeria police being a public document and therefore refused to give it its true probability value and to nullify both votes allegedly scored and election in the 10 contested Local Government Areas in Osun State. It should be noted that the outcome of the decision of the trial Tribunal would have been the same even when the evidence is admitted, notwithstanding the argument of the petitioner’s counsel that if the report has been admitted the decision would have gone in favour of the petitioner.

            The second issue for determination is whether the Tribunal was right when it returned the petitioner as winner of the election. As stated earlier in this work, it is the duty of the Court of Tribunal to declare the candidate with the highest number of votes winner of an election89. For the duty to arise therefore, the following constitution must be met viz:

(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.90

            Before the above provisions 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 on the Tribunal or Court would not arise and so resort to them cannot properly be had.91 In this case, it is evident from the record of INEC that the respondent at the Tribunal scored the highest number of lawful votes cast at the Election. Therefore the Tribunal was right when it returned him as the winner of the April 14, 2007 election in Osun State.

            Another important issue for determination is whether the petitioner/appellant was entitled to a stay of proceeding of the election tribunal. The general rule is that it is only when an interlocutory appeal will dispose of the substantive case that stay of proceeding will be granted. When the grant of a stay will unnecessarily delay the proceedings, stay of proceeding will not be granted. In the instant case, it very clear form the circumstances of the case that, the interlocutory appeal by the petitioner at the Tribunal who is also the appellant in the Court of Appeal will not dispose of the substantive matter. Therefore, the stay of proceedings sought by the petitioner was rightly refused.92

            It is now generally accepted that election petitions are sui generis. It is no longer a moot point. The writer is of the considered view that the issue of the alleged exclusion of evidence is a matter that can be heard together with the substantive matter.

            Finally, on whether leave to appeal is necessary where complaint of appellant is about the wrongful admission or rejection of evidence. It is principle of law that in an appeal, where the compliant is that the ruling is concerned with the wrong full admission of evidence, an appellant seeking to appeal does not need the leave of court before he can appeal. The growing of appeal against the ruling can be included when appealing the final judgment of the trial Court93. In the instant case, the compliant of the appellants in ground 3 and 4 of their amended group of appeal is that the Tribunal wrongly excluded the certified true copy of the police report in its ruling on 15/5/08. Also, having stated that the Tribunal was wrong in rejecting the certified true copy of the police report, the appellants ground of appeal here are competent and the objections of the 1^st 3^rd and 136^th – 1367^th respondent on same should be over ruled.

4.8       Anambara State – 2003.

            The independent National Electoral commission (INEC) in 2003 conducted its second election across Nigeria on the 19^th of April 2003. Anambara state was one of the states in which the election was conducted94. In this work, we shall report the fact of the case which arose from the conduct of the elections as it affects Anambara State gubernatorial seat. The case under view is Ngige V Peter Obi95.

Facts:

            On the 19^th of April 2003, the INEC conducted gubernatorial election in all the 36 States of Nigeria. In Anambara State fourteen political parties presented candidates to contest the election. Among those  who contested the election are Dr. Chris Nwabueze Ngige, the candidate presented by the Peoples Democratic Party (P.D.P) and Mr. Peter Obi the candidate presented by All progressive Grand Alliance (APGA) At the conclusion of the election, INEC declared Dr. Christ Ngige as the winner of Anambara State gubernatorial election with 452, 850 votes. Mr. Peter obi who is the petitioner not satisfied with the INEC’s return; he therefore presented a petition challenging the results declared by INEC.

Issues:

            There were many issues raised in this case at the tribunal, however, for the purpose of this work we shall consider some of them to wit:

1.         Whether upon proper construction of sections 60 are 136 (1) & (2) of the Electoral Act, 200296 read together with section 197 (2) of the 1999 Constitution and in view of the pleadings and evidence, the Tribunal was justified in declaring the petitioner as the person duly elected as Governor of Anambara State.

2.         Whether the judgment delivered by the Tribunal is valid when some of the members who sat and delivered the judgment did not take part in the hearing of the petition and were not present when all the witnesses, testified.

3.         Whether at the time the Tribunal permitted the petitioner to further amend his petition and to file his further amended petition upon which the petitioner canvassed his case, the Tribunal was justified in during so having regard to the provisions of paragraph 14(2) of the first schedule to the Electoral Act, 200297 and also having regard to the nature of the amendment the made by the petitioner.

4.         Whether the Tribunal was justified in refusing to sustain or invalidate the result for all the wards to which the petitioner ascribed wrong names.

            It should be noted that, after a marathon trial, spanning over two years, a total of 482 witnesses testified before the Tribunal. The petitioner called 45 witnesses. The 1^st respondent called 425 witnesses while the 2^nd respondent called 12 witnesses. The Tribunal delivered its judgment on 12^th day of August, 2005 in which it held that the petitioner proved his case and was according entitled to his reliefs.

            We shall therefore assess the judgment of the Tribunal based on the issues raised above to ascertain their adequacy or otherwise on the point of law.

            The first issue here bothers on the construction of statute upon which the Tribunal declared the petitioner as the person duly elected as the Governor of Anambara state. Section 140 (3) provides thus:

“If the Election tribunal or the court as the case may be determines that a candidate who was retrieved as elected was not validly elected on the ground that he did not score the majority of valid votes cast ad the election the tribunal or the court as the case may be shall declare as the 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”.

From the facts of the case, it is discovered that Mr. Peter Obi was the candidate with highest number of valid votes cast at the election notwithstanding the declaration of Chris Ngige as the winner of the election by INEC.

            It should be noted that section 140(1) of the Electoral Act, 2010 (as amended) is subject to section 140(3). It is a cardinal rule of construction of statutes that when a provision in a statute is made subject to another provisions that provision must be read subordinate to the provision it is made subject to.98

            The phrase subject to indicates that section 140 (3) overrides the provision of section 140 (1) of the Electoral Act. If follows therefore that since the Tribunal’s judgment is based on who had the majority of lawful votes, the provisions of section 140(3) of the Act overrides that of Section 140(1). That being the case, nullification is not an issue.

            Following from the above argument, the Tribunal was right when it declared the petitioner as the candidate validly elected and reused to nullify the election. As a follow up, the petitioner also satisfied the requirement of section 9(2) (a & b) of the 1999 Constitution (as amended) by proving that he has the highest number of votes cast at the election and has not less than ¼ of all the votes cast in each of at least 2/3 of all the Local Government Anambara State. Also, on whether a petitioner who pleads the above section of the Constitution should quote it. It is trite law that a party needs not plead law nor is he required to plead evidence.

            Thus, where a petitioner has pleaded that he was duly elected, he needs not quote subsections (a) and (b) of section 179(2) of the constitution as those subsection provide for what has to fulfill for a candidate for the office of Governor of a state to be duly elected.

            The second issue centers on the quorum of Governorship Election Petition Tribunal. On this issue, we shall consider the provision of section of the Constitution.99 Section 285(4) provides that the quorum of an Election Tribunal established this section shall be the chairman and two other members, while paragraph 2(1) of the sixth schedule provides that the Governorship and Legislative House Election Tribunal shall consist of the chairman and four other members. Form my understanding of section 285(4), the quorum is constituted if the chairman sits with at least two other judges. However, a combine reading of the two provisions from my understanding is to the effect that the chairman sits constantly, any two members can sits with him and such membership may vary from time to time among the former members exclusive of the chairman who must always be present to preside over the proceedings each time the Tribunal sits. In the instant case, the chairman was present throughout the trial. The changes in the quorum were as it affects other members of the Tribunal. Therefore, the judgment delivered by the Tribunal is valid100

            It should be noted that a complaint against the sitting of inconsistent quorum does not pertain to the jurisdiction of the Tribunal. Any variations in the quorum do not make the judgment a nullity.101  They only make the judgment unsatisfactory and could be set aside for that season. Whether or not to set aside the judgment depends on the peculiar circumstances of each case102.

            Finally, it should be borne in mind that the way and manner the alleged inconsistency has affected the judgment or how it has occasioned a miscarriage of justice to the parties, have not been emphasized in the issue for determination other than the fact that it is a procedural defect which renders the judgment a nullity. On the authority of  Nwobodo VC.C. Onoh103  election petitions are by their nature peculiar from the of public policy. It is the duty of the Court therefore to endeavour to hear them without allowing technicalities to unduly fetter their jurisdiction. After

            Another important issue for determination is effect of the interpretation giving to paragraph 14(2) of the Electoral Act. The paragraph provides.

“14(1) subject to sub-paragraph (2) of this paragraph, the provision of the Civil Procedure Rules relating amendment of pleading shall apply in relation to an election petition or a reply to the election petition as if for the words many proceeding in those provisions there were sub situated, the words “the election petition or reply” (2)        After the expiry of the limited by

(a)       Section 134(1) of this Act for presenting the election petition, no amendment shall be made (ii) Introducing any of the requirement of subparagraph (1) of paragraph. 4 of this schedule not considered in the original petition field or  (ii) effecting a substantial alteration of the ground for or the prayer in, there election petition etc”.

            The provision of paragraph 14(2) is very clear and unambiguous. No amendment will be allowed which will introduce new parties to the petition, after the right of the petitioner to present the petition after the holding of the election, the scores of the candidates and the person returned as the winner of the election or after the facts of the election petition based or the relief sought by the petitioner. In effect, any amendment which is substantial which alters the grounds for or the prayer in the election petition with not be allowed. From the records of the Tribunal, it is my humble opinion that the amendment of the world “North” to read “South” and the rest are inconsequential and not substantial. They do not offended against paragraph (14) (1) of the first schedule to the electoral Act. Therefore, the Tribunal was right in granting the amendment.

            The last issue here is whether the Tribunal was justified in refusing to sustain or invalidate the result for all the wards to which the petitioner ascribed wrong names. Here the respondent consented that the existence for an electoral ward is a matter of law and not a matter of fact. It is my humble submission that the above contention is wrong. Surely, the existence or non-existence of thing is a question of fact. This is the same with an electoral ward.  It either exists or it does not exist. The petitioner pleaded these wards in his petition. If the respondents deny the existence of the wards, it is incumbent on them to challenge the existence in their reply to the petition. There is nowhere in their pleadings, the respondents deny the existence of the wards. A court can’t consider issues not joined by the parties in their pleasing104. According to the Tribunal:

“We hold the view that the existence of none-existence of the ward is a matter of fact and material fact alleged by the petition. Yet the respondent did not deny. The existence of such wards in their pleading consequently, no issue was joined to the existence or other wise of the affected words”.

            It is settled law that where facts alleged and are not controverter, no further proof of such fact is required105. Having found that issues were not joined in respect of the existence or otherwise of some wards, the Tribunal was right when it refused to sustain or invalidate the result for all the wards to which the petitioner ascribed wrong numbers.

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1 These include the 1999, 2003,2007 and 2011 Elections.

[1] The major contestant in the said election are Mr. Fayemi and Mr.Oni

[2]

4 Haruma v Modipo (2004) 6 NWLR (Pt. 900) p 487

5 Thute v INEC (91999) 4 NWLR (Pt. 599) p. 360; Abbo v. Mbukurla (1999) 5 NWLR (Pt 663) 393 at 997

6 The Electroal Act 2010 (as amended) Cap.  L15, Law of the Federation of Nigeria, 2004.

7 (2004) 16 NWLR (Pt. 898) 91 at 95

8 Section 139 of the Electoral Act, 2010 ( as amended)

9 Ajadi v Ajibola (supra)

10 Basheer v Same  (1992) 4 NWLR (Pt. 236) 0-509

11 Swem V Dzunge  (1996) I SCNLR III at 119, Buhari V Obasanjo  (2005) 2 NWLR (Pt. 910) 241 at 369-379

12 Hanuna V .Modibbo (supra); Nweke V Ejims (1999) 11 NWLR (Pt. 625) 39 at 53.

12

13 Unreputed Suit No Sc.51/2005 delivered on 12/12/08. Pg. 287 paras. B.E

14Section 146(1) of Evidence Act 2006, is pari materia with Section 139 of Evidence Act, 2010

15 He is the appellant in this Case Under review

16 The Tribunal was led by Hon Justice Garuba Nabamma.

17 They were other candidates that contested the election but only these two went to court at last

18 Agagu V Mimiko (2009) 7NWLR (pt. 1140) 343 at 405  P.A.B

19 it should be noted that INEC is the 3^rd respondent in this case

20 This is the Court that has the final say in Governor election disputes in Nigeria. See S. 246 (1) (b) (II) of the 1999 constitution (as amended).

21 Sections 19, 46 & 50 of the Electoral Act, 2006 are in Parimateria with the Section 18, 45 and 49 of the Electoral Act, 2010 (as amended)

22 Paragraph 49(2) & (5) of the 2006 Act is in Paramateria with paragraph 53(2) &(5)of the 2010 Act

23 See the case of  INEC V Action Congress (2009) 2 NWLR (pt. 1126) page 524.

24  Ogbommu V.A.G. of Imo State (1992) INWLR (pt. 220) P. 647, Effiong V Ikpene (1999) 6 NWLR (pt. 606) P. 260- 277.

25 Ovuckwulise V Animashium (1996) 3 NWLR (Pt. 439) Pg 637.

26 (1992) 3 NWLR (Pt 231) P. 615-621. per Akanbi JCA (as he then was)

27 See Kossen (Nig) Ltd V Savannah Bank (1995) 12 SCNJ page 29.

28 See Yusuf V Obsanjo (2005) 10NWLR (Pt. 956 ) page 421-422 paragraph F-F.

29 This case was decided using the Electoral Act 2006.

30 Adefemi v Abegunde (2004) 15 NWLR (pt. 895) p. 470 paras. E - F

31T he literal rule is one of the methods of interpreting the provision of a statute for clearly

32  See Ibrahim V J.S.C (1998) I NWLR (pt. 584) pg. 1; Afoyebi v Gov. of Oyo State (1999) 5 NWLR (pt. 344) p. 290.

33  Section 147(1) & (2) of the Electoral Act, 2006, is  parimateria  with section 140 (1) and (2) of the 2010 Electoral Act.

34 Page 434-440, paragraphs C-H in the case under review

35 (2009 ) All FWLR ( pt. 463 ) page 1263 CA.  

36 (2009) All FWLR (pt 463) pg 1263, C.A

37 comrade Adams Oshimhole Ahyu

38 They are also the other respondents in the case at tribunal.

39 Electoral Act (2010) (as amended0 Cap – 15 Law of Federation of Nigeria, 2004.

40 (2004 ) 14 NWLR ( Pt. 892 ) page 43; ( 2005 )All FWLR (Pt. 245 ) page 1048.

41 Supra

42 Paragraph 4(1) (c) of the first schedule to the Electoral Act 2010 (as amended)

43 Amechi v. INEC (2008) all FWLR) All FWLR ( Pt. 407) p. 1; (2008) 5 NWLR ( Pt.1080) P. 227.

45 Section 144(2) of 2006 Act is in pair materia with section 143 (2) of the Electoral Act, 2010 (as amended).

44 This is the decision researched by the count of in the case under view at p.g. 1387, paras E-F

45 Madubuike v Madubuike (2000) FWLR (pt 30) p. 26ll;, (2001) 9 NWLR (pt. 719). P. 698. per Fabiyi JCA.

46 Hashim V Minister F.C.T. (2002) 15 NWLR (pt 789) p. 159, (2003) FWLR (pt. 248) p. 1405.

47 D.S. Muhammed: understating the Legal battle in Sokoto State Governorship Election Petiton Tribunal /http/:ww.gamji.com/article800 visited 2/8/2012.

48 Dingyadi v wamakko  (2010) 6 EPR, 287.

49  Section 34, 36 & 38 of the 2006 Act are in Parimeteria with Section 33, 35 and 38 of the Electoral Act 2010.

50 (1978) 9/10 SC.I

51 Ezulumer Ohieri & Anor v Adanu Akabeze & ors (1992) 2SCNY (Pt. 1) Page 76. see also Franscis Esagbe v Fridayy Agbolor & Anor (1993) 13 SNY page 82-91.

52 See Section 177 (1) (a-d) of the 1999 constitution (as amended)

53 See AG of Oyo State v Farlakes Hotesl Ltd (1985) 5 NWLR (pt.121) 255 al 290

54 See Section 138 of Electoral Act, 2010 (as amended)

55 Section 145 of EA 2006 is the same as section 138 E.A 2010

56 See Section 32 of the Electoral Act, 2010 (as amended)

57 See Milad of Benue State v Ulegede (2001) 17 NWLR (pt 174) page 194.

58  See Sections 38 and 41 of the Electoral Act 2010 (as amended)

59Zumit v Mohmoud (1993) 1 NWLR (pt. 267) p. 71 UBA v Enemuo (2006) All FWLR (pt. 311

60  See Saulawa  v  Kabir (2001) 2NWLR (pt. 1232) 417 at 446, para D.

61 Ukpo v Aded (2001) FWLR (pt. 77) Page 85

62 ANPP v INEC (2004) 7 NWLR (pt 871) page 31 Jang v Dariye (2003) 15 NWLR (pt. 843) page 430.

63 (2007) 1 NWLR (pt 1040) page 504

64 One of the States among others that make up the Nigeria Federation. See section 3(1); first schedule, part I, 1999 constitution

65 The tribunals was not approach because, this is a pre-election matter.

66 The above section is in pari material  with section 31(5) of the 2010 Act (as amended

67 The  above section is now section 31(3) Ibid.

68 See Amechi V INEC (2008) 5 NWLR (Pt1086) P.288-292

69 Per Oguntade J.S.C. Amaechi V INEC. Supra, P. 292

70 Per Adermi, JSC, Ibid. P. 434.

71 Section 34 of the Electoral Act, 2006 which is in pari materia with section 33 of 2010 Act (as amended)

72 Ugwu V Araume (2007) 6 S.C. (pt.1); (2007) 12 NWLR (pt. 1048) P. 365.

73 Ucha V Onwe (2011) 4 NWLR (Pt. 1237) 386 at 424 Para F

74 Odedo V INEC (2008) 17 NWLR (Pt. 1117) 554 at 601, Para S D-G; 613, Paras. A-B 614, Para E-F; 634, Pars G-B.

75 Ehianwo V Oke (2008) 16 NWLR (Pt 1113) P.521 para, B-D

76 Section 31 (4) & (5) of the Electoral Act (as amended)

77 Section 285 of the 1999 constitution (as amended)

78 Obi V INEC (2007) 11 NWLR (pt. 1046) page 635.

79 See section of 182 (g) and (h) of the 1999 Constitution (as amended)

80 Rauf Aregbesola V Olagunsoye  Oyinlola (2008) NLFWLR (pt. 436) page 2018 per Niki Tobi,-Justice of Appeal Court (as the then was)

81 See section 140(3) of the Electoral Act, 2010 (as amended)

82 The above section is in paria material with section 140(3) of Electoral Act, 2010 ( as amended )

83 (2009) 4 NWLR (Pt. 1132) 513 at 554-555, paras. H-C

84 Agbaje V Adugun (1993) I NWLR (Pt. 269) P. 261; Bella V Governor Of Kogi State (1997) 9 NWLR ( Pt. 521 ) page 496 paragraphs E-F.

85 See section 102 (a) (111) of the Evidence Act, 2011 (as amended)

86 Page 472, paras. B-C of the Court of Appeal Judgment in this case.

87 Anatogu v Iweka II (1995) 8 NWLR (Pt 415) page 547; Agagu V  Dawodit (1990) 7 NWLR (pt. 160) page. 56; Ogbiniya V Okudu (19979) 6 – 9 Sc. 32 page 472 paras E-H

88 Page 472, paragraph H of the Court of Appeal judgment on the appeal of this case.

89 This is only possible if the matter has gone to Court not immediately after the election. Only the INEC has such power.

90 Ejiogu V Irona  (Supra) page 513 at 555

91 Ibid. paragraphs A-F

92 Kabo Air Ltd V Inco Beverages Ltd  (2003) FWLR (pt136) page 9441 (200) 6 NWLR (Pt.816) 323 referred to (p, 2023) para B.

93 Onwe V Oke (2001) 3 NWLR (Pt. 700) 406 referred to (p. 465, page 465)  paras C-E

94 The said election was contested majorly between Chris Ngige and Peter Obi among other candidates.

95 ( 2010 ) 6 EPR page 1.

96 Section 60 & 136 (1) & (2) of the 2002 Act, are in parimateria with sections 63 and 140(3) of the Electoral Act 2010.

97 The above paragraph bothers on the amendment to pleadings. It is in parimateria with paragraph 14(2)of the 2010 Act.

98 See NPA V  Eyamba (2005) 12 NWLR (pt 939)_ p. 409; Tukur V Government of Gongola state (1989) 4 NWLR (pt. 117) p 517; Dusemo V COP (1998) 11 NWLR  (pt 575) p. 547.

99 See section 285 (4) & paragraph 2(1) of the sixth scheduled to the Constitution of the Federal Republic of Nigeria (1999 (as amended).

100 Fayemi V. Oni (Supra)

101 Sec. Aleigbe & anor V Kosimu & Ors (1965) All NLR P 26 per Ademola CJN (as he then was )

102 Ibid

103 (1984) ISC l4 page 195.

104 Temite V Aeani ( Supra )

105 See Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) page 24.

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