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 14th 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 1st respondent was not duly elected by a
majority of the lawful votes cast at the election.
(ii) The election and return of the 1st 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 1st respondents and the 2nd-16th
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 1st
respondents testified along with fifty-two (52) others against the petition.
The 2nd -16th respondents called eleven witnesses.
Various documentary evidences were admitted in evidence in the course of trial.
The petitioner and the 1st 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 1st 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 1st 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 14th 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 1st 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 1st 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 1st respondents.
(f) Finally,
whether the tribunal was right when it declared the 1st respondent
as the winner of the Governorship election held in Ondo State
on 14th 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 23rd
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 31st 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 21st
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 1st
respondent. It would amount to greater injustice to deny the 1st
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 14th April 2007 and that the 1st
respondent scored the highest number of valid votes cast at the election.34 From the forging, the Tribunal was
right when it declared the 1st 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 1st petitioner36
under the platform of Action congress (Ac) now Action congress of Nigeria (ACN)
and the 3rd respondent37 under
the platform of Peoples Democratic Party (P.D.P). The 3rd 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 3rd 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 3rd 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 1st petitioner as the winner of the
Governorship election and compelling the 1st and 2nd respondents to
present to the 1st petitioner, certificate of return as the validly
elected Governor of Edo State. The 3rd respondent filed a
preliminary objection to the petition challenging its competence. The 2nd
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 1st respondent as duly elected
Governor of Edo State. Yet aggrieved, the 3rd respondent field an appeal
at the Court of Appeal. The 1st and 2nd 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 23rd-24th
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 1st petition was the AC sponsored governorship Candidate in the
same way as the 3rd respondent was the candidate sponsored by the 4th
respondent (P.D.P) for the governorship post. The emir stating that A.C. Governorship
candidate was the 1st 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 1st petitioner is the 1st
respondent and that PDP is the 3rd 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 23rd-214th 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 1st respondent complained that the 76th
respondent is not a juristic person and ought to have been struck. It is hereby
submitted that the Tribunal is right; listing the 76th 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 3rd
respondent contended that the core issue which the parties submitted for
adjudication was decided by the Tribunal in its ruling of 4th 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 3rd 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
1st 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 1st 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 1st 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 1st 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 1st
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 3rd to 43rd 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 3rd to 43rd
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 1st defendant failed to adduce evidence in
support of his pleading denying negligence and the 2nd 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 2nd defendant
was prima-facie negligent the learned
trial judge ought to have found the 1st defendant liable for
negligence..”
In the instant case, the
Tribunal ought to have struck out the 3rd to 43rd
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 1st
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 1st 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 1st 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 1st 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 1st respondent, the above decision is also based on the fact
that the issue of validity or otherwise of nomination of the 1st
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 25th 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 18th 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 14th
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 2nd of
February, 2007, the PDP sent the name of the 2nd
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 16th 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 3rd respondent. This places to a burden on the 3rd
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 3rd 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 14th 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 1st 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 4th 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 11th 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 15th 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 1st 3rd and 136th –
1367th 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 19th 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 19th 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 1st respondent called 425 witnesses while the 2nd
respondent called 12 witnesses. The Tribunal delivered its judgment on 12th
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.
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 3rd 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.