Benneth Ikeatu V. Bonny Mbakwe Obi & Ors (1999)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
This is an appeal from the decision of the Governorship and Legislative Houses Election Tribunal holden at Owerri in Imo State delivered on 24/3/99. The 1st respondent, Bonny Mbakwe Obi, was petitioner at the tribunal while the appellant, Benneth Ikeatu, was the 1st respondent at the same tribunal. The appellant and the 1st respondent were candidate at the House of Assembly election held on 9/1/99. They both contested for the Ideato South State Constituency in Imo State. The appellant contested the election on the platform of the All Peoples Party (APP) while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP).
The 2nd respondent (INEC) is the statutory body charged with the conduct of the elections while the 3rd, 4th and 5th respondents were the officials of the 2nd respondent directly involved in conducting the election. At the end of the said elections, the 2nd respondent declared that the appellant was the winner in that he scored 14,288 votes while the 1st respondent was said to have scored 10,901 votes. The 1st respondent was dissatisfied with the result declared. He accordingly filed a petition against it at the tribunal. The grounds he relied on in support of his said petition as set out in paragraph 7 of his petition are:
“(a) The 1st respondent was not elected by a majority of valid and/or lawful votes cast at the election.
(b) The election of the 1st respondent was voided by corrupt practices, irregularities and malpractices.
(c) The 1st respondent was not qualified to contest the said election.”
The petitioner (now 1st respondent) then concluded his said petition by praying the tribunal for the following reliefs:
“Wherefore your petitioner prays that it be determined that:
(a) The 1st respondent was not elected by a majority of lawful votes cast at the election and ought not be returned a duly elected.
(b) That it be determined that the petitioner was elected by a majority of lawful votes cast at the said election and ought to have been returned as duly elected.
In the alternative, the petitioner prays the tribunal to make any of the following orders:-
(a) Order a bye-election in the said three wards, namely:-
i) Umuna Isiaku Ward
ii) Amanator/Umueshi Ward
iii) Umuakam/Umuagor Ward
Or cancel the votes cast at the said three wards and declare the result.”
The petition was opposed. To that end, the 1st respondent at the tribunal (now appellant) filed a reply. A reply was also filed on behalf of the 2nd to the 5th respondents. Thereafter the petition went on trial before the tribunal. The petitioner testified before the tribunal and called witnesses in support of his case. At the close of this case, the 1st respondent also gave evidence and called a number of witnesses. Thereafter, learned counsel for each of the parties submitted there written addresses in compliance with the directive from the tribunal before the tribunal reserved its judgment.
In its reserved judgment delivered on 24/3/99, the tribunal found that there was merit in the petition in that the result, as earlier declared by the 2nd respondent, was not correct. The tribunal therefore, after making the necessary adjustments to the figures recorded in line with the findings of facts it made, came to the conclusion that the petitioner scored 4,298 votes more than the 1st respondents (now appellant). consequently, the tribunal held that the result of the election declared by the 2nd respondent was not correct in that the petitioner was the winner at the election. The petitioner was therefore declared by the tribunal as the winner having scored 16,541 votes as against 12,243 votes scored by the 1st respondent (now appellant).
The present appeal is against that decision. Five grounds of appeal were filed. The appellant and the 1st respondent filed their briefs in this court. But no brief was filed on behalf of the 2nd to the 5th respondents. The appellant formulated the following four issues as arising for determination in the appeal:
“(1) Whether the petition as filed by the petitioner was competent in view of the fact that he did not join the necessary parties to the petition contrary to s.133(2) of the Decree No.3 of 1999.
(2) Whether the tribunal below was right in considering only the evidence of the petitioner/respondent without considering that of the 1st Respondents before arriving at its decision in the petition.
(3) Whether indeed the petitioner/respondent proved before the Tribunal below in respect of his petition that Election took place in Umuna Isiaku Ward as to entitle him to the votes the credited to himself in Exhibit ‘E’.
(4) Whether the Petitioner/Respondent proved before the Tribunal that he scored the majority of the lawful and valid votes cast at the Election as to entitle him to be declared the winner of the said Election.”
The 1st respondent, on the other hand formulated four similar in his brief. But since I consider the 4 issues formulated in the appellant’s brief as adequate and cover those raised in the respondent’s brief, I consider it unnecessary to reproduce the issues formulated in the respondent’s brief.
The main point raised in the appellant’s first issue is that the petition was incompetent in that the petitioner did not join all the necessary parties. This point was said to have been raised before the tribunal in learned counsel’s address. It is argued that the petitioner had, in learned counsel’s address. It is argued that the petitioner had, in his petition made copious allegations of electoral malpractices against the presiding officers and returning officers of Amanator/Umueshi ward where he is said to have alleged, inter alia, that the respondent’s agents and supporters were driven away by the supporters of the 1st respondent/appellant after which thumbprinted ballot papers were brought by them and then poured them into the ballot boxes. It is argued that since the presiding officers were in charge of the ballot boxes, the above allegations of malpractices were made against them. Failure to join the presiding officers at the 5 polling booths Nos. A4, A6, A10, A12 and A13, is said to be in breach of the mandatory provisions of Section 133(2) of the State Government (Basic Constitutional and Transitional Provisions)
Decree No.3 of 1999 which provides that:
“The person whose election is complained of is in this Decree referred 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, the electoral officer, the presiding officer, a returning officer or that other person shall for the purpose of this election be deemed to be a respondent and shall be joined in the election as a necessary party.”
The tribunal is said to have failed to consider the question of the competence of the petition raised in the address in its judgment. Similarly the respondent did not reply to submission made on the point. Rather he chose to abandon the second and third leas of this petition. It is however argued that the step taken by the respondent was not enough to justify the decision arrived at by the tribunal. It is finally submitted that the respondent having failed to join the necessary parties, the petition was incompetent and the tribunal ought to have struck it out. We are therefore urged to make an order striking out the petition.
It is submitted in reply that the question of non-joinder did not arise in the instant case because the respondent abandoned the grounds dealing with electoral misconduct. It is further argued that contrary to the appellant’s claim, the returning officer for Umuakam Umuago Ward was in fact joint in the petition as the 5th respondent. It is also argued that the effect of non-joinder does not invalidate the petition. At worst, the effect of such non-joinder would be to make it impossible to prove the allegations made against the party not joined. The decision in Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at 130 is cited in support of this submission. Finally, it is submitted that the appellant failed to raise the objection in time. It is argued that waiting until the address stage before raising the question of non-joinder render such objection unacceptable. A dictum of the Supreme Court in Bohsali v. Arikpo (1966) 1 All NLR 161 is relied on in support of this view.
The main question posed in this issue is whether the respondent’s petition was competent or otherwise having regard to non-joinder of the officer or officers whose conducts were being queried in the petition. the relevant provision of the afore-mentioned section 133(2) of Decree No.3 of 1999 is that such person “shall be joined in the election petition as a necessary party.” That provision is, in my view, mandatory. Failure to comply with it will therefore render the election petition incompetent. The decision is Omoboriowo v. Ajasin, supra, which is relied upon is inapplicable to the present case because the electoral law under which the election in that case was conducted does not contain a mandatory provision similar to the afore-mentioned provision of section 133(2) of Decree No.3 of 1999.
That point was also raised as to the time when the objection to jurisdiction was taken. It is submitted that raising such objection at the address stage was improper. The law is however settled that challenge to jurisdiction of a court can be taken at any stage of a proceeding and even for the first time in the supreme court. This is because a judgment or order given or made without jurisdiction is a nullity, an exercise in futility and a compete waste of the court’s time. Thus, lack of jurisdiction is the court deprives the judgment or order of any affect whether by estoppel or otherwise. See Josiah Cornelius Ltd v. Ezenwa (1996) 4 NWLR (Pt.443) 391; Bronik Motors v. Wema Bank Ltd (1983) 1 SCNLR 296; Att-Gen. of Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517; and Savannah Bank v. Pan Atlantic (1987) 1 NWLR (pt.49) 212.
It follows therefore that raising the issue at the address stage during the trial before the tribunal in the present case is quite in order. The Supreme Court’s decision in Bohsali & Co. Ltd v. Arikpo, supra, cited in support of the submission that an objection to jurisdiction must be taken timeously is inapplicable to the point in issue in this case because that was not the principle decided by the Supreme Court in that case. The correct principle of law applicable therefore remains as I already set out above.
The petition filed before the Tribunal contained three grounds which I have already quoted above. But the petitioner abandoned the last two of the grounds thereby leaving only the first ground. It is therefore necessary to examine the only ground retained to see if there was in fact a breach of the mandatory provision of section 133(2) of Decree No.3 of 1999 relating to joinder of person or persons whose conduct was being queried in the petition. The only ground of petition retained reads as follows:-
“The 1st respondent was not elected by a majority of valid and/or lawful votes cast at the election.”
I have no doubt in holding that there is totally nothing in this ground of the petition to suggest that the conduct of any presiding officer, or returning officer or any person was being questioned. I therefore hold that the afore-mentioned mandatory provision of section 133(2) of Decree No.3 of 1999 is inapplicable to the instant case. The appeal is it relates to issue No.1 therefore lacks merit. The appeal, as it relates to that issue, is accordingly dismissed.
The remaining three issues deal with complaints about the way the tribunal evaluated the evidence led before it and came to the conclusion it reached in the case. Reference is made to the fact that the petitioner abandoned two of the 3 grounds of his petition at the address stage. But the tribunal is accused of not separating which portion of the evidence led before it relates to the grounds withdrawn and which portion was applicable to the remaining ground before coming to the conclusion it eventually reached in the case. It is further submitted that having abandoned the two grounds in which the petitioner challenged the result of the election on the grounds of corrupt practices, irregularities and malpractices, it followed that the petitioner had accepted the result as declared. The tribunal is therefore said to have acted wrongly when it included the scores by the 1st respondent in the wards where corrupt practices, irregularities and malpractices had been alleged.
The tribunal was also accused of failing to evaluate the evidence led by the parties before coming to its conclusion on the crucial issue of whether election was in fact held in Umuna Isiaku ward.
It is submitted in reply that it is wrong to allege that the tribunal failed to evaluate the evidence led before it before coming to the conclusion it reached in the case. It is further argued that the main evidence relied on by the tribunal in reaching its decision is contained in the documents tendered before the court as Exhs. B, C1-C5, D, G-G19 and E. The adjustments made by the tribunal to the votes scored by the parties were extracted from those documentary exhibits. It is therefore contended that since it is the figures extracted from the said documents that finally changed the total scores of the parties, this court is urged not to tamper with the conclusion reached by the tribunal.
The questions posed in the three issues are mainly whether there was proper evaluation of the evidence led by the parties and whether the conclusion reached by the tribunal is justifiable. The point raised by the appellant that the tribunal failed to sort out the portions of the evidence led relating to the 2 ground of the petition abandoned before coming to its conclusion is totally unwarranted and unnecessary. All that the tribunal needed to do was to evaluate the entire evidence led before it and see if the petitioner made out a case to warrant resolving the remaining issue in his favour. This, in my view, is what the tribunal did in the case. The documentary exhibits tendered before it are in support of the tribunal’s conclusion that the scores credited to each of the parties needed to be adjusted and that the adjusted scores made by the tribunal as reflected in is judgment is supported by the evidence led before the tribunal.
In conclusion, I hold that there is no merit in the entire appeal and I accordingly dismiss it with N3,000.00 costs to the 1st respondents.
Other Citations: (1999)LCN/0570(CA)