JUDGMENT
In the Court of Appeal sitting in Edo State
CA/B/EPT/93/08
1. Comrade Adams Aliyu Oshiomhole
2. Action Congress [AC] (Respondents)
and
3. Senator (Prof) Oserheiman. Osunbor (Appellants)
4. Peoples Democratic Party [PDP]
INEC & 19 ORS
JUDGMENT
(Delivered by Umar Faruk Abdullahi, PCA, CON)
In this case, the Petitioners had joined all the Presiding Officers in each ward in each of 16 Local Government Areas as Respondents as if all the Presiding Officers in each such ward were one Respondent. The two sets of Appellants objected to such amalgamation, and the Tribunal held that “The lumping together of several presiding officers from unspecified and unidentified polling booths in a number, of wards in the different local governments makes the 23rd- 214th Respondents non juristic persons.
Section . 144 (2) of the Electoral Act 2006 provides for the joinder of “a presiding officer” who took part in the conduct of an election and whose conduct the Petitioner complains of.
There is no provision in the Electoral Act 2006 which permits the amalgamation of presiding officers or the grouping of a team of presiding officers as Respondents in an election petition. See Chief Ugwu Nwafor Ujam vs Chief Ken Nnamani (2005) All FWLR (Part 252) 1580 where it was held by the Court of Appeal that it is imprecise, nebulous and at large to sue a team of Respondents as presiding officers. In each of the 23rd -214th Respondents between 10 and 30 presiding officers from unspecified polling booths were lumped together as Respondents.
This, in our view, is improper”. In effect, the Presiding Officers who were declared non-juristic persons were struck out as Respondents because they were lumped together, but the fact that they were so struck out did not impinge on their status as Presiding Officers, and the fact that they are not parties to the Petition will not void the Petition because as Presiding Officers they are agents of INEC.
In other words, the 23rd -214th Respondents did not cease to be agents of INEC in their individual capacities and since INEC is a party to the Petition, they come within the contemplation of the proviso to Section 144 (2) of the Electoral Act, 2006, which says that their non-joinder as parties to the Petition “will not on its own operate to void the Petition if INEC is a party”.
The averments against them in the said paragraphs of the Petition subsist, and since the averments also concern other Respondents who were not struck out as parties, the Tribunal was therefore right to hold as it did and refuse to strike out the averments in the said paragraphs of the Petition. This issue therefore fails and is resolved against the two sets of Appellants.’ Senator (Prof) O. Osunbor and PDP also complained that the 76th Respondent is a non_juristic person and ought to have been struck out.
The Petitioners had sued the 76th Respondent as East West LGA instead of Esan West LGA, and in ruling that it was a misnomer, the Tribunal held - “East West Local Government sued as the 76th Respondent is said by the Petitioner’s counsel to be a typographical error, instead of Esan West. This is certainly a misnomer which can be cured by the leave of the Tribunal at any stage of the proceedings even by an oral application to amend the name of the local government.
We agree with learned senior counsel for the Petitioner that East West Local Government ‘.vas a typographical error as there is no allegations of any wrong doing against East-West: Local Government in the Petition, However in paragraphs 15 (1) and 16 (xii), 18, 33 and 69 of the Petition, allegations are made against Esan West Local Government Presiding officers _”.
Senator (Prof) O. Osunbor and PDP however contend that the reasons advanced by the Tribunal is not tenable in law; that the decision is predicated on assumption and speculation unsupported with hard facts; and that there was no application for amendment, rather the Petitioners’ counsel informed the Tribunal in a cavalier manner that the 76th Respondent came into being as a result of error, and the Tribunal surprisingly accepted the explanation and held as it did.
Comrade Adams Oshiomhole and AC responded that the Tribunal carefully perused the Petition before it and came to the only reasonable conclusion that it could. Tribunal is right; listing the 76th Respondent as East West LGA of Esan West LGA is merely a typographical error, and it is an error that can easily be amended, even on an oral application. Yes, there is no East West Local Government in Edo State but there is an Esan West Local Government, and there is no question that the 76th Respondent listed in the Petition is Esan West Local Government. Besides, the
Appellants have not shown in what way they have been prejudiced or suffered any miscarriage of justice from the error. This issue clearly lacks merit and therefore fails.
The last issue for determination in the interlocutory appeals is whether the Tribunal prejudged the substantive Petition at the interlocutory stage of the proceedings. It is the contention of INEC and its officers that the core issues which the parties submitted for adjudication wore decided by the Tribunal in its Ruling of 4th July 2007 on the preliminary objections.
This Court was referred to extracts from the Tribunal’s Ruling, as follows- “Allegations that members of a particular political party were used as principal and adhoc staff of INEC either as Electoral Officers, Supervisors, Presiding Officers, Poll Clerks, Returning Officer, and Collation Officers in an election or that a particular party used thugs to snatch ballot paper, ballot boxes and other electoral materials to secure unlawful votes, all amount to corrupt practices.
These allegations are sufficient to invalidate an election if and only if, they can be proved by credible evidence. Allegation and 4th Respondents by their agents used offensive weapons shut (sic) into the air with guns and removed election material or that ballot papers where they were thump (sic) printed and stuffed into ballot boxes in order to secure unlawful votes all amount to corrupt practices and must have happened during the time the election was being conducted. These are complaint in the conduct of the election and the Tribunal is competent to hear, look into them and determine their veracity, genuineness or authority.” (Underling theirs).
“Paragraph 16, 17, 18, 19, 29, 30, 60,63, and 64 elaborate the series of corrupt practices alleged to have been perpetrated by the 3rd nd 4th Respondents at specific locations during the election: They should therefore remain. Paragraphs 17-57 of the Petition are never vague nor speculative.
They concern specific allegation of corruption practice which the Respondents were said to have perpetrated in Edo Central Constituency, comprising five local governments namely; Esan South-East, Esan North, East, Esan Central, Esan West and Igueben where voting did not take place but where ballot stuffing into ballot boxes was said to be the order of the day (Underling theirs).
“Again paragraphs 62, 63, 64, 65 and 66 of the Petition did not violate Section 144 (2) of the Electoral Act, 2006 because the complaints and allegations in those paragraphs of the petition were not that Martins Okofulaju, Chief Tony Anenih and Elder Odion Ogbesla participated In the conduct cf the election held on 14th April, 2007 but that their action in recruiting members of the 4th Respondents (PDP) as Presiding Officers and pool clerks was a violating (sic) of the Electoral Act, 2006 and amounted to corrupt practices”. (Underlining theirs).
It was further submitted that there is no gainsaying the fact that the above pronouncements by the Tribunal went too far into the substantive Petition. On their own part, Senator (Prof) 0. Osunbor and PDP complained that the Tribunal adopted the decision of Adeniji, JCA in Dr. Chinedu Iwu V. Nwugo (2004) 8 NWLR (Pt 877) 54 at 70 that a Petition would not be struck out when there is overwhelming allegation contained therein, and submitted that by subscribing to the word “overwhelming” the Tribunal had made up its mind on what to do before hearing the preliminary objection.
Comrade Adams Oshiomole and AC however argued that the contention of INEC and its Officers is without basis; that except the English language had changed its meaning, there is nothing In the above quoted statements suggesting or indicating that the Tribunal determined any matter or issue that should or would arise for determination at the trial; that the Tribunal did not make any findings but merely interpreted the paragraphs of the Petition, which the Appellants raised for its consideration; that any allegation that a Court or Tribunal had prejudged a matter is a serious matter because it is one that bothers on fair hearing i.e. likelihood of bias; and that what the Appellants did is to quote certain portions of the Ruling and give them a slanted interpretation or quote them out of context, which is most unfair to the learned Judges of the Tribunal.
As to the argument proffered by Senator (Prof) Osunbor and PDP, they submitted that the Appellants appear to have deliberately quoted the use of the word “overwhelming” out of context; and that the reference to Chinedu Iwu V, Nwugo (supra) was not even the reason for the Tribunals’ decision. I agree; the Appellants appear to be making a mountain out of a molehill. Yes, the Tribunal or any Court whatsoever has a duty not to determine substantive issues at the stage of considering an interlocutory application _see Hashim V. Minister FCT (2002) 15 NWLR (pt. 789) 159, Ogunsola V. Usman (2002) 14 NWLR (pt.788) 636, Akapo V. Hakeem_Habeeb (1992) 6 NWLR (pt.247) 266, North_South Petroleum Nig. Ltd. V. FGN (2002) 17 NWLR (pt. 797) 639, See also Madubuike V. Madubuike (2001) 9 NWLR (pt.719) 698 where this Court per Fabiyi JCA observed- “As a general rule, it must be stated succinctly that live issues in the case must be left for the substantive trial of the suit. If live issues are tried at the interlocutory stage, there will be nothing left for the trial at the substantive hearing of the suit”.
But in this case, no pronouncements were made by the Tribunal on any live issues at that stage when it was considering the Appellants’ objections. The record shows that it was when resolving the issue of non-joinder of necessary parties as Respondents that the Tribunal stated as follows- “Learned senior counsel for the 3rd and 4th Respondents referred to paragraphs 16 (xiii), 17, 62, 63, 64, 65 and 66 of the Petition and urged us to strike them out as they all contain allegation of wrongdoing against people who are named for having participated in the conduct of the election but who were not made Respondents in the Petition to answer the allegations against them. Section 145 of the Electoral Act 2006 ‘States the grounds on which an election may be questioned to include “that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2006.
See Section 145 subsection (1) (b). Allegations that members of a particular political party were used as principal and adhoc staff of INEC either os Electoral Officers, Supervisors, Presiding Officers, Poll Clerks, Returning Officers and Collation Officers in an election or that a particular party used thugs to snatch ballot papers, ballot boxes and other electoral materials to secure unlawful votes, all amount to corrupt practices.
These allegations are sufficient to invalidate an election if and only if, they can be proved by credible evidence. Allegations that the 3d and 4h Respondents by their agents used offensive weapons during the election, shut (sic) into the air with guns and removed election materials or that ballot papers where they were thump (sic) printed and stuffed into ballot boxes in order to secure unlawful votes all amount to corrupt practices and must have happened during the time the election was being conducted.
These are complaints in the conduct of the election and the Tribunal is competent to hear, look into them and determine their veracity, genuineness or authority. (“Highlights mine). The Tribunal continued as follows -: “The cases of 3ANG vs. DARIYE (2004) FWLR (Part 1941 214 and YUSUF vs. OBASANJO (2005) 18 NWLR (Part 956^ 96 are inapplicable. In our view, only paragraphs 43 and 61 of the Petition relate to matters which happened before the election. The Tribunal cannot pry into matters that had occurred before the election. Paragraphs 43 and 61 are therefore struck out. Paragraph 16, 17, 18, 19, 29, 30, 60, 63, and 64 all elaborate the series of corrupt practices alleged to have been perpetrated by the 3d and 4h Respondents at specific locations during the election: They should therefore remain.
Paragraphs 17-57 of the Petition are neither vague nor speculative.
They concern specific allegation of corrupt practices which the Respondents were said to have perpetrated in Edo Central Constituency comprising five local Governments namely; Esan , South -East, Esan North- East, Esan Central, Esan West and Igueben where voting did not take place but where ballot stuffing into ballot boxes was said to be the order of the day. (Highlights mine) Clearly, the portion of the Ruling complained against were not only quoted out of context but were misconstrued to mean the direct opposite of things..
The choice of words used by the Tribunal - “allegation” “if and only if they can be proved by credible evidence”, “alleged to have been perpetrated”, “said to be” etc,, dearly show, that it did not determine the substantive Petition or touch on any live issues at that early stage of the proceedings. The Tribunal merely analyzed some paragraphs of the Petition to see whether they should be struck out or not. |
