Fresh election is in order where no clear winner emerged (3) (b)
IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
ON THURSDAY THE 31ST DAY OF DECEMBER 2015
BEFORE THEIR LORDSHIPS:
HON. JUSTICE OYEBISI FOLAYEMI OMOLEYE PRESIDING JUSTICE COURT OF APPEAL
HON. JUSTICE CHINWE EUGENIA IYIZOBA JUSTICE, COURT OF APPEAL
HON. JUSTICE SAMUEL CHUKWUDUMEBI OSEJI JUSTICE, COURT OF APPEAL
HON. JUSTICE TIJSNI ABUBAKAR JUSTICE, COURT OF APPEAL
HON. JUSTICE JAMILU YAMMAMA TUKUR JUSTICE, COURT OF APPEAL
1. ALEX OTTI
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) ………………………..…………APPELLANTS
1. OKEZIE IKPEAZU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)……………. RESPONDENTS
Now as pertaining to paragraph 16 of the petition, the Tribunal had held as follows at page 5,532 of the record of appeal:
We have considered the submission of parties. On paragraph 16 the grounds are not premised on the provision of Electoral Act but rather on paragraph 14-16 of the petition as done in the instant case. See OJUKWU vs. YAR’ADUA (2009) 12 NWLR (PT1154) page 50. Paragraph 16 of the petition is accordingly struck out.
We really look askance at the above finding and holding of the Tribunal give that paragraph 16 of the petition does not constitute a ground within the meaning of the Electoral Act, but mere averment of facts as applicable to pleading. In other words, Section 139(1) of the Electoral Act prescribed the grounds upon which an election shall be challenged and the Appellants listed the grounds to which they are challenging the election of the 1st Respondent in their petition as set out in paragraph 9(a) to (d) in page 3, Volume 1 of the Records of Appeal.
The Respondents herein are not in any way challenging paragraph 16 of the petition as a ground but on the basis that it is vague for not standing the polling units affected by their numbers and locations. The said paragraph 16 of the paragraph 16 of the petition reads thus:
Your petitioners state that the process of the election in Osisioma, Obingwa and Isiala Ngwa North local governments entirely, and a polling unit in Umuahia Urban ward, in Umuahia North local government as well as 82 polling units in Ugwunagbo local government areas forming part of the one which the 1ST Respondent was returned as the winner of the election did not comply with the criteria outlined in paragraph 14-15 above which were substantial, and the noncompliance substantially affected the result of the election, and return of the 1st Respondent as winner thereof.
The above set out paragraph directly flows from paragraph 14 and 15 of the petition which are quite explicit and it is not compulsory that in each succeeding paragraph, facts relating to the same transaction must be repeated notwithstanding that such facts have been detailed in preceding paragraphs. It is our firm view and we hold that, a clear reference to such fact as averred to in preceding paragraphs of a pleading or petition suffices and cannot render the succeeding paragraph vague for non-repetition of such facts.
On the whole, while we find the holding of the Tribunal that paragraph 16 of the petition is a ground that must comply with the provision of the Electoral Act as wrong and perverse are not vague and the order striking them out is hereby set aside. The said paragraphs 16, 21, 30(a) and 48 are accordingly restored to the petition. The two issues are therefore resolved in favor of the Appellants and against the Respondents.
Whether in the light of the Electoral Act, 2010 (as amended) and extant authorities, the learned Judges of the Tribunal were not wrong in dismissing reliefs 3 and 4 sought by the Appellant on the ground that they are contradictory?
Learned senior counsel for the Appellants, Chief Akin Olujinmi SAN, referred to page 5,559 of volume 5 of the printed record of appeal where the Tribunal held as follows:
On reliefs 3 and 4 of the petition at one breathe in the relief 3 the petitioners asked for nullification of the entire election, at another breathe in the relief 4 petitioners want the 1st petitioner to be declared the winner of the same election. These are contradictory in terms. It is trite one cannot approbate and reprobate, in other words, one cannot say yes and no in response to the same thing.
He submitted that there is nothing contradictory in the two claims; that if relief 3 succeeds, it opened the way for relief 4. The learned senior counsel argued that, should the Tribunal determine that the election and return of the 1st Respondent is invalid by reasons of corrupt practices and if his return is liable to be nullified, the Tribunal may then determine and declare that the 1st Appellant/Petitioner won majority of the lawful votes cast at the election of 11th and 25th April, 2015. The learned senior counsel relied on the case of: Adeghije vs. Nwaogu (2010) 12 NWLR (Pt. 209) 419 at 454 and submitted that the law allows the petitioner in an election petition to make two seemingly contradictory pleadings leading to two different heads of claim. He submitted therefore that the Tribunal was wrong when it struck out the two reliefs.
Chief Wole Olanipekun, SAN, in the 1st Respondent’s brief of argument submitted that the Tribunal was right in its finding that reliefs (iii) and (iv) are contradictory and therefore amounted to approbation and reprobation. Learned senior counsel submitted that the phrase ‘’and further –‘’ between relief 3 and 4 show that both relief were married together by the Appellants/Petitioners conjunctively. He submitted that relief (iii) seeks for the invalidation and nullification of the election as well as the return of the 1st Respondent on the basis of corrupt practices, it goes without saying that no party that took part in the election can be returned as winner. He premised his argument on the fact that invalidation of election as claimed in relief (iii) as contemplated in Section 138 of the Electoral Act affects the entire election. Relying on the case of: People Democratic Party v. Independent National Commission & 4 Ors. – Appeal No. – CA/L/EP/GOV/762A/2015 delivered on 26th August, 2015, the learned silk submitted that a full panel of this Court held that a challenge of an election on the ground of corrupt practices as done in the petition affected the votes of all participants at the election. He submitted that reliefs (iii) and (iv) claimed together and/or jointly are inherently contradictory and cannot be tried together in the same petition and that the Tribunal was on valid legal footing in the striking out the contradictory reliefs.
For the 2nd respondent, Dr. Onyechi Ikpeazu, SAN submitted that it was the case of the Appellants that the election of 11th April, 2015 was in conclusion; and that nobody was declared duly elected on that day as no declaration was made at the conclusion of the election. He opined that it is the declaration of a person as duly elected that necessarily compels the application of Section 179(2) (a) and (b) of the 1999 constitution of the Federal Republic of Nigeria. By that section, a candidate will be declared duly elected if he score the highest number of votes cast at the election, and not less than one quarter of all the votes cast in each of at least two-thirds of all the local government areas of Abia State. The learned silk submitted that there was no basis for invoking the foregoing Constitutional provision with respect to the election which transpired on 11th April, 2015, the Appellants themselves having pleaded that no declaration was made on that day. He submitted that it was wrong for a relief to be anchored on a non-existent declaration. Learned silk submitted that relief (iii) ‘’that it may be determined and declared that the election and the return of the 1st Respondent as the Abia State Governor is invalid by the reason of the corrupt practices and liable to be nullified,’’ is flawed in that no declaration was made in respect of the election of both 11th April and 25th April (if the latter may be introduced) are incurably bad, then it follows that nothing legal, legitimate or regular can possibly arise therefrom. He argued that it was consequently totally out of the question for the Appellants to somersault and claim that illegality and nullity should arise viability and legality which must result in the declaration of the 1st Appellant as the duly elected Governor of Abia State as prayed for in his Relief no. 4. Learned silk queried: ‘’upon which voted would the 1st Appellant be declared the victor? Would that be the same voted which were the product of corrupt practices, illegal thumb printing of ballot papers, hijacking of election materials, violence, mayhem, which marred the same election?’’. Learned silk submitted that the Tribunal could not hold that the election of the 1st Respondent was invalidated by the corrupt practices, leading to a nullity, and yet out of the same transaction, and based on the same evidence declare the1st Appellant victorious. Learned silk for this position relied on the cases of: (1) Sabiya Vs. Tukur (1983) 11 S. C 109-110 and (2) Joseph Olujimi Kolawole Agbaje Vs. INEC & Ors. (2015) 8C.A.R 46 at 90.
Asiwaju Adegboyega Awomolo, SAN, for the 3rd Respondent on his part submitted that the Appellants were wrong to complain about the decision of the Tribunal on their Reliefs 3 & 4. He put forward same arguments as the 2nd Respondent as set out above. He opined that if relief 4 was sought in the alternative to the relief 3, it would be acceptable, but that where the two reliefs are not in the alternative, such reliefs are bad in law as no court has the power to grant two reliefs that are contradictory. In this wise, he relied on the case of: Opia vs. Ibru (1992) 3 NWLR (Pt.231) 658 at 686, paras G-H. The learned silk urged this Court to resolve the issue in favour of the 3rd Respondent.
The Appellants’ Relief 3 and 4 read as follows:
iii. That it may be determined and declared that the election and return of the 1st Respondent as Governor of Abia State is invalid by reason of the corrupt practices and liable to be nullified, and further-
iv. that it may be determined and thus declared that the 1st petitioner won majority of the lawful votes cast at the 11th and 25th April, 2015 election held in Abia State and satisfied the constitutional threshold and the spread across the 17 local government areas of the state; and ought to be and thus be returned as the duly elected Governor of the State.
Contrary to the holding of the Tribunal, the Appellants did not ask for the nullification of the entire election. What they asked for is that, the election and the return of the 1st Respondent as the Governor of Abia State be nullified and invalid by reason of corrupt practices.
TO BE CONTINUED