Chidiebere Nwoke V. Dan Ebeogu (1999)

LawGlobal-Hub Lead Judgment Report

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

6. Facts supporting the grounds relied upon

Your petitioner states that his 183 valid votes were unlawfully excluded at polling unit No. AB/15/150/03/6 & 13. Your petitioner shall at the hearing of this petition lead evidence to show that at close of the election a total of 183 votes validly thumbprinted and cast for your petitioner by duly accredited voters who voted at the said polling unit were wrongfully excluded and not taken into account on the flimsy reason that those ballot papers were not stamped. Your petitioner states that whereas a total of 344 registered voters were accredited and stood in queue to vote and voted at the said polling unit only a total of 161 votes were recorded as total votes cast, 96 for your petitioner and 65 for 1st respondent. Copy of INEC Form EC 8A with serial No. 0002297 in respect of polling unit No. AB/15/150/03/6 & 13 is hereby pleaded and the 3rd and 4th respondents are hereby given notice to produce the original at the hearing of this petition. If the 183 valid votes of your petitioner are added or included, the correct result of the election would have been 6,176 for the petitioner and 6,173 for the 1st respondent.

(a) Your petitioner shall contend and show at the hearing of this petition that the votes purportedly cast for the 1st respondent is Ibeku East I Ward, particularly at Isiadu polling unit No. AB/149/15/15, Nkata III polling unit No. AB/15/149/3, Isieke/Umuajiji polling units I, II, III Nos. AB/15/149/5. AB/15/149/13 and 19 and AB/15/149/6. Okwuta I, II & III Nos. AB/149/15/112 & 18, AB/149/15/4 and Umuezeagwu Polling Unit AB/15/149/16 were totally invalided and marred by irregularities, mutilations, cancellations and wrongful allocation of false, fictitious and invalid votes to the 1st respondent.

(b) Your petitioner shall at the hearing show that the result form Isiadu polling unit No. AB/149/15/15 was false in that the total voles purportedly cast exceeded No. of accredited voters. In INEC Form EC 8A(1). No.0002284, 300 voters were accredited, 296 were in queue to vote. 282 were votes purportedly scored by 1st respondent as against your petitioner’s 14 on1y while 5 invalid votes were recorded. An addition of 282 to 14 and 5 gives a total of 301 votes cast over and above the number of accredited voters and the number in queue to vote. The petitioner shall contend that this result ought not to be taken into account in computing the results of the election in which case your petitioner’s score would have been 5,979 as against 1st respondent’s score of 5,891.

(c) Your petitioner shall at the hearing of this petition contend and show that 4th respondent’s Form EC.SA(1) issued to all the polling units were serially numbered and same by fraud and electoral malpractices, no two polling units received the same result sheets Form EC 8A(1) bearing the serial number and no one polling unit received result sheet hearing different serial numbers for one particular election. It shall be shown at the hearing that each polling unit in Ibeku East I Ward received only 6 of the said INEC Form EC8A(1) with a particular serial number for the particular election and no polling unit received more than 6 or less than 6 of the same serial number and no one polling unit received result sheets with different serial numbers for the House of Assembly election.

(d) House of Assembly election results from Ukoma code No. AB/149/15/8, and Isieke unit code No.AB/149/15/13 & 19 were returned on the same sheet with serial No. 0002296. Results from units AB/149/15/12 & IS and AB/149/15/4 were also returned on the same sheet bearing serial No. 0002295 House of Assembly election result from Okwuta Unit AB/l5/149/4 was further returned on two different result sheets hearing different serial numbers i.e. 0002294 and 0002295 and the result from Umuajiji suit No. AB/15/149/5 also returned on two different results sheets bearing different serial Nos. i.e. 0002293 and 0002292. Your petitioner shall contend that the results from these polling units were invalided and marred by irregularities and malpractices in that result sheets returned to 4th respondent differed from what were handed over to party agent etc.

The INEC result sheet Form EC.8A(1) in respect of the above polling units for House of Assembly election are hereby pleaded for reliance and the 3rd and 4th respondents are given notice to produce the originals at the hearing of this petition.

(e) Your petitioner shall at the hearing lead evidence to show that the result submitted to 4th respondent from Nkata polling unit No. III was not valid in that the election in the said Nkata booth III was not free and fair as agents of the 1st respondent was used thuggery to forcefully remove one of PDP booth agents thereat before stuffing the ballot box with so many thumbprinted ballots to the glare of other people working in the other booths. The ballot papers that were stuffed into the box were thumbprinted by APP agents inside the bush and were not cast by registered voters. The 359 votes allocated to the 1st respondent in Form EC 8B(1) 0000 159 purporting same to be his score from Nkata polling unit III AB/15/149/3, were fictitious and invalid. In the INEC booth result in Form EC SA (1), No. of registered voters was put at 500, and 300 as, number of accredited voters. Number of voters in queue to vote was shown to be either 405 or 450. Number of votes purportedly scored by 1st respondent 359 while 39 votes was falsely credited to the petitioner, in Form EC 8B(1) 0000 159 instead of his actual score of 239. The number of invalid votes was shown to be 405 or 399. And the column for number of valid votes was left empty but an addition of 359 to 239 and I gives 599, which figure is above the number of

registered voters, number of accredited voters and number of voters in queue to vote. If No. of invalid votes was either 405 or 399, 1st respondent could not have scored 359 votes allocated to him which must have been invalid votes. It the results from this unit are cancelled the fictitious 359 votes allocated to 1st respondent shall be deducted from his results to give a balance of 5,814 and 39 votes deducted from your petitioner’s results to give 5,954 majority votes; or in the alternative the 300 votes added to the petitioner’s results to give 6, 193 majority votes. INEC Form EC8A(1) No. 0002292 in respect of polling unit No. AB/15/149/3 is hereby pleaded and 3rd and 4th respondents are given notice to produce the original.

(f) Your petitioner further states that the election at Okwuta polling unit No. AB/15/149/12 & 18 were marred by irregularities and malpractices and the results therefrom invalided as a result of allocation of fictitious and invalid votes to the benefit of the 1st respondent. Your petitioner state that the 363 votes allocated to the 1st respondent in Form EC 8B (1) 0000159 as his purported score from unit AB/15/149/12 & 18 were fictitious, false and invalid. In INEC Form EC 8A(1) No. 0002294 showing result from the said unit, 394 voters were shown as registered voters 394 voters accredited and 394 in queue to vote. A total of 378 votes were shown to be invalid while only 16 votes were shown to be valid in this unit. If 378 votes were invalid, the 1st respondent could not have scored 363 votes allocated to him which must have been invalid votes which ought not to be included in the computation. And having been wrongfully included ought to be deducted by the tribunal.

Deducting the 363 invalid votes wrongfully allocated to the 1st respondent from his results leaves him with a balance of 5,810 votes while 12 invalid votes removed from the petitioner result gives 5,981 majority votes. INEC Form EC 8A No.00002294 in respect of polling unit No. AB/15/149/12 & 18 is hereby pleaded and the 3rd and 4th respondents are given notice to produce the original.

(g) Your petitioner further states that the election at and results from Okwuta unit No. AB/15/149/4 were further marred by malpractices and allocation of false, fictitious and invalid votes to the 1st respondent. These malpractices and allocation of fictitious, invalid and unlawful votes for the benefit of the 1st respondent were so glaring that the total votes cast in the said unit exceeded the number of accredited voters by more than one hundred and fifty (150). In INECs Form EC 8A (1) No. 0002295 the number of accredited voters was put at 120 (one hundred and twenty) while the total votes cast put together live 316(three hundred and sixteen). The 1st respondent was said to have scored 279 while your petitioner was said to have scored 22. AD 4 and 11 invalid votes recorded. The excess of 196 were invalid and unlawful votes or votes purportedly cast by non accredited voters, or votes not cast but wrongfully recorded and included in computation for the benefit of the 1st respondent which votes ought to be deducted or the entire results from AB/15/149/4 cancelled by the tribunal for this high level irregularity and substantial non compliance with the guidelines and Decree. INEC Form EC 8A(1) No. 0002295 in respect of AB/15/149/4 is hereby pleaded and the 3rd and 4th respondents are given notice to produce the original. If the 279 votes allocated to the 1st respondent in Form EC B(1) No. 0000 159 as his purported score from the said unit is deducted from his result. 1st respondent’s balance shall be 5,894 votes while deducting the 22 votes credited to the petitioner from his results shall give 5,971 majority votes.

(h) The result in Form EC 8B(1) No. 0000 159 in respect of Umuezeagu polling unit No. AB/15/149/16 were falsified to the extent that the 1st respondent was falsely credited with 257 votes when in fact he scored 83 i.e. excess of 174 votes and your petitioner was falsely credited with 33 votes instead of 233 votes he actually scored. i.e. a loss of 200 votes he actually scored. i.e. a loss 01200 votes. If the correct figure were taken into account in the computation of results, your petitioner would score 5.993 +200=6, 193 while 1st respondent would score 6, 173 – 174 = 5,999. Your Petitioner shall contend in the alternative that results from this unit be cancelled on grounds of falsification of results whereby your petitioner would score 5,960 votes (5,993 – 33) and 1st respondent 5916 votes (6,173 – 257).

INEC’s Form EC 8A(1) in respect of AB/15/149/16 is pleaded and 3rd and 4th respondents gives notice to produce same upon hearing, Furthermore only 9 votes were shown to be valid in the said Form EC 8A(1) while 291 were invalid.

(i) Your petitioner state that if all the results from the 5 polling: units complained of in this petition, i.e. AB/15/149/15, AB/15/149/16, AB/15/149/3, AB/15/149/12 & 18 and AB/15/149/4 are cancelled

or nullified on grounds of the said irregularities and allocation of fictitious votes the 1st respondent’s total result shall he his purported total results from these unit 1,540 deducted from 6,173 = 4,633 while you petitioner’s total results from these units 120 deducted from 5,993 leave him with 5,873 majority votes. And if your petitioners 183 valid votes from units AB/15/150/03/6 & 13 are included. his total votes shall be 5,955. If however only AB/15/149/16, AB/15/149/3 and AB/15/1494 unit are cancelled, the 1st respondent would score 6,173 – 995 = 5,899 majority votes.

(j) Your petitioner shall at the hearing of this petition urge the tribunal to:

(1) Find that the petitioner’s 183 valid votes cast by duly accredited voters at Umueze polling unit No. AB/15/150/03/6 & 13 were unlawfully excluded and shall urge the tribunal to make an order adding the said 183 votes to the petitioner’s total votes.

(2) Your petitioner shall also upon hearing urge the tribunal to hold the election at and results from Isiadu, Umueseagwu. Nkata III, and Okwuta I, II & III polling units were marred by irregularities including the allocation of fictitious and invalid votes to 1st respondent and urge the tribunal to make an order nullifying the said election results from Nkata Polling unit No. III AB/151149/3, Okwuta units AB/15/149/12 & 18, AB/15/149/16 and Isiadu AB/15/149/15.”

Learned counsel for the appellant referred to paragraph 5(c) of the petition and argued that except for the polling unit referred to in paragraph 6, the rest of the polling booth results referred to in paragraph 6(a), 6(b), 6(e), 6(d), 6(e), 6(1), 6(g) and 6(h) of the petition relate to the results and what the 2nd respondent did to change the said results, learned counsel argued that it is in the course of hearing the petition that the tribunal will he in a position to determine the nature of the allegations against the 2nd respondent. The tribunal merely speculated and assumed that the conducts complained of were entirely those of the presiding Officers which is not the case asserted learned counsel. He therefore submitted that since the complaints were in the main against the conduct of the ward returning Officer, 2nd respondent who was duly joined as a party, the tribunal should have considered that as sufficient to enable the petition be heard on the merits, and to exclude evidence to be led against any presiding officer not joined in the petition.

The appellant dealt with issues No.2 and 3 together and submitted that the paragraphs of the petition which the 1st respondent applied to be struck out, when read with paragraphs 4 and 5(c) of the petition, did not complain about the conduct of presiding officers but the use the returning officer made of the respective Forms EC 8A(1) in collating the results at the ward collation centre in Form EC 8B(1) NO. 0000159. He contended that the Election Petition Tribunal should not have acted hastily in striking out the petition based on its own assumption that it was the conducts of the presiding officers that were called to question and submitted that where there are other respondents against whose conduct a petitioner has made complaints in the petition and who are joined as parties, the proper course would be to proceed to trial and to reject any evidence touching on the conduct of any officer relied upon but not joined in the petition. This he argued is because in a case where there are 3 necessary parties and 2 are joined the non joinder of the other

remaining necessary party cannot render the petition incompetent.

On the fourth issue, learned counsel relied on Schedule 6 paragraph 50(2) which provides that an application to set aside an election petition or proceedings for being irregular or a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the matter to argue that since the 1st respondent had taken fresh steps towards defending the petition after becoming award of the alleged defects on the face of the petition, he was not entitled to raise an objection as to the competency of the petition. He forcefully argued that by failing to act timeously the 1st respondent was not entitled to raise his preliminary objection at the state he was allowed to do by the tribunal. He cited the case of Shedon v. Bayloyse Steel Works Ltd & Anor. (1995) All ER 894 which he says is applicable to the facts of this petition.

Learned counsel for 1st respondent argued issues Nos. 2, 3 & 4 together and submitted that the averments in paragraphs 5,6,6(a)-6(j) of the petition directly referred to the conduct of the presiding officers who functioned at the affected Polling Stations and it accords with the finding of the tribunal. He argued that there is no direct allegation in the petition against the returning officer going by the acts described and the mere mention of the returning officer (2nd respondent) is in effect the mention of a wrong person because the acts complained of had occurred at the polling units being questioned before going to the collation centre where he collates results submitted to him and sign. He submitted that the joinder of the presiding officer was a condition precedent which must be complied with otherwise the petition will not be properly constituted and the court will have no jurisdiction to hear the petition.

On the last issue, Learned Counsel for the 1st respondent contended that the objection to the competence of the petition and therefore to the jurisdiction of the tribunal was taken in limine after an appearance only had been filed and this did not amount to taking a step as envisaged by the law. He submitted that the entry of unconditional appearance in this case did not foreclose an objection to the competence of the petition.

Learned counsel for 2nd – 4th respondents agreed with all the submissions made by the appellant and urged this court to hold that the objection was not properly brought and that the ends of justice will be met if the petition is heard and determined on the merits.

The tribunal meticulously went through the petition and in particular paragraph 6, 6(a)-6(j) and concluded that the allegations therein were undoubtedly directed and referable to polling units and no reference was made to the collation centres or the headquarters of the 4th respondents. The tribunal found and I agree that an allegation of malpractices, irregularities, falsification of votes and allocation fictitious votes directed at the polling units are in fact directed against the presiding Officers who are in charge of the polling units, see Schedule 5 paragraph 14(2).

Although in paragraph5(c) of the petition, the petitioner/appellant impugned the conduct of the returning officer in Ibeku East I Ward, the facts enumerated in paragraph 6, 6(a)-6(j) centered on the conduct of the presiding officers. In drafting an election petition, extreme care must be taken to ensure that it is the person whose conduct in an election that is being complained against that is joined as a party. It is my view that once a party applies for the striking out of a petition or paragraphs in a petition, the tribunal has to decide the issue especially if no evidence has been taken, this is different from the case of Godwin Ebiriezeke v. Godwin Dede & 4 Ors (unreported) in appeal No. CA/PH/EP/37/99 delivered on 5/3/99 where the 1st respondent/appellant raised the issue of the competency of the petition for the first time on appeal after both parties had given evidence. If in paragraph 6, 6(a)-6(j) the petitioner/appellant had alleged that:-

“The ward returning officer prepared a false return different form the scores the presiding officers entered in Form EC8A or EC8A(1) which the agents signed and copies distributed to them …”

it would have been obvious that the complaints were directed at the returning officer and not the presiding officers. 1see no reason whatsoever to fault the ruling of the Tribunal and the tribunal was not hasty in fu1ing on the competency of the Petition. At the stage the objection was taken, the 1st respondent had not taken any fresh steps that foreclosed him from raising the objection.

I find no merit in this appeal and I dismiss it with N2,000.00 as costs to the respondents against the appellant.

---

Other Citations: (1999)LCN/0612(CA)