Chidiebere Nwoke V. Dan Ebeogu (1999)

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AKAAHS, J.C.A.

The main issue in this appeal is whether the allegations of electoral malpractice contained in paragraph 6, 6(a) – 6(j) of the petition were directed against the ward returning officer or the presiding officers of the polling units. The Tribunal in its Ruling dated 5/3/99 upheld the objection raised by the 1st respondent that the petition was incompetent and accordingly struck out on the ground that allegations contained in the petition were against the presiding officers who were not joined in the petition, the petitioner on the other hand maintained that the allegations were against the ward returning officer and evidence ought to have been taken before deciding on the Issue.

The facts leading to this appeal may be briefly stated as follows:-

On 9th January, 1999, with the exception of Bayelsa State, elections into the State Houses of Assembly and Governorship seats were held throughout the country, Abia State inclusive. In Umuahia East Constituency for the Abia State House of Assembly election, only two candidates contested namely Barrister Chidiebere Nwoke, the petitioner who contested under the platform of the All Peoples Party (A.P.P) while Dan Ebiogu (now 1st respondent) was sponsored by the Peoples Democratic Party (PDP) was declared winner of the election. The Alliance for Democracy (AD) did not field any candidate for the election. The results announced at the end of the election were:-

Dan Ebiogu (APP) – 6,173 votes

Chidiebere Nwoke (PDP) – 5,993 votes.

The 1st respondent was therefore declared the winner of the election with a small margin of 180 votes. Quite naturally the petitioner was dissatisfied with the return and filed a petition with the Governorship and Legislative Houses Election Tribunal sitting at Umuahia the Abia State Capital. Upon receipt of the petition, the 1st respondent entered appearance and brought a motion seeking an order enlarging the time within which to file his reply. The petitioner did not oppose the application and the reply was deemed as duly filed and served. Thereafter two motions were filed, one by the petitioner asking the tribunal to strike out certain paragraphs of the reply and the other by the 1st respondent praying the Tribunal to strike out the petition or in the alternative paragraphs 6, 6(a)-6(j) for being incompetent.

This latter motion dated 1/3/99 was taken and in a well considered ruling the tribunal held that the petition was incompetent and proceeded to strike it out. It is against this ruling that the petitioner/appellant has appealed to this court upon 4 grounds of appeal filed with the notice. All the parties filed briefs of argument with the appellant filing a reply brief to counter 1st respondent’s contention that he needed leave to appeal against the interlocutory ruling of the court dated 5/3/99.

The 1st respondent without filing a cross appeal cannot raise more issues than the grounds filed or raise any issue outside the grounds of appeal, since issues are distilled from the grounds of appeal and an issue can cover one or more grounds of appeal. See: Olowosogo v. Adebanjo (1988)4 NWLR (Pt. 88) 275: Akilu v. Fawehinmi (No.2)(1989) 2 NWLR (Pt.102) 122; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208.

Of the six issues raised in the 1st respondent’s brief for determination, issues Nos. (i) & (v) do not flow from the grounds of appeal filed by the appellant and they are accordingly struck out. Suffice it to say that the order striking out the petition was a final order and the appellant does not need leave before he can appeal (see section 220 (1)(a) of 1979 Constitution as amended).

The appellant formulated four issues for determination which learned counsel for 2nd – 4th respondents adopted. The remaining four issues by 1st respondent’s counsel are quite similar with those of the appellant. The issues formulated by the appellant are:-

1. Whether the tribunal was right in holding as it did inspite of the averments in paragraph 5(c) of the petition against the 2nd respondent followed by the complaints against her in paragraph 6(e) 6(f), 6(g) and 6(h) which were directed at what she did in the relevant form EC8B(1) which are Ward collation forms.
2. From the petition, whose conduct was complained about? Whether it was not the result as collated by the returning officer, 2nd respondent that was complained about and not the conducts of the presiding officers who produced the booth to booth results which were used by the 2nd respondent.
3. Whether the Election Petition Tribunal was right in striking out the petition on grounds of non-joinder of alleged presiding officers, when the 2nd respondent a ward returning officer whose conduct was complained of in the petition was duly joinded as the 2nd respondent in the petition.
4. Whether the objection was proper before the tribunal at the stage when it was taken.

The remaining 4 issues framed by 1st respondent are similar to those of the

appellant. They are more lucid. They are:-

1. Whether the complaints in paragraphs 5(c) 6(c), 6(c),6(g) and 6(h) of the petition were actually complaints against the 2nd respondent who was only a ward returning officer and never officiated at the polling stations complained of which were only a few of the number of polling stations in the ward, or complaints against the conduct of elections at the affected polling stations and therefore against the presiding officers of the stations.
2. Whether a careful and sober perusal of the averments in paragraph 6, 6(a) – 6(j) of the petition will not show unmistakably that the complaints therein are against the conduct of elections at the questioned polling stations and therefore, against the presiding officers and of the said polling Stations – and not the 2nd – 4th respondents.
3. Whether in view of the mandatory provisions of s.133 of Decree No.3 of 1999 the non-inclusion of the presiding officers who officiated at the polling stations complained of in the petition, is not a failure to include all the necessary and statutory parties and therefore, failure to comply with a condition precedent.
4. Whether there is any time bar to an objection on the ground of fundamental incompetence of a petition and therefore lack of jurisdiction of the tribunal.

In order to fully appreciate the arguments on the ruling appealed against it is necessary to reproduce the entire paragraph 6 of the petition wherein the appellant set out the facts supporting the grounds upon which the petition was based and they are as follow