Fresh election is in order where no clear winner emerged (3)

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
CA/OW/EPT/GOV./6/2015
BETWEEN
1. ALEX OTTI
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) ………………………..…………APPELLANTS
AND
1. OKEZIE IKPEAZU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)……………. RESPONDENTS

The preliminary objections of the 3rd Respondent having been dismissed and resolved against it, it becomes clear for the substantive appeal to be determined on its merits.
The Appellants are the aggrieved parties to the appeal, it therefore stands to reason that in resolving the appeal, the issues donated by them ought to be and are hereby adopted by us. For by doing so, none of their complaints will be missed. The said twelve issues donated by the Appellants have earlier been set out above in this judgment. However, because some of the issues are interlinked, they shall be categorized and resolved as follows:
ISSUES 1 AND 15
ISSUE 1

Whether in the light of the provisions of the Electoral Act, the learned Judges of the tribunal were right in striking out paragraph 16 of the petition?

ISSUE 15
Whether in the light of the pleadings and evidence on record the learned trial Judges of the Tribunal were not wrong in striking out paragraphs 21, 30(a) and 48 of the petition?
Dwelling issues 1 and 15, the learned senior counsel for the Appellants referred to paragraph 16 of their petition to contend that they therein pleaded by the reference to the criteria in the manual for the election which spelt out in paragraphs 14 and 15 of the petition, the process the election should have gone through in the three local government areas of Osisioma Ngwa, Obingwa and Isiala Ngwa North, to be properly conducted. He added that the Tribunal misunderstood the Appellants’ pleadings to hold that the election should comply with the Electoral Act, guidelines and the manual and not the ‘’what the Petitioner had said in his petition’’. It was further submitted that the Tribunal failed to appreciate that the contents of Paragraph 14 and 15 to which reference was made in paragraphs 16 of the petition were part of the facts of the petition as required by paragraph 4(1) (d) of the first schedule to the Electoral Act. Therefore he argued that, there was no justification for the striking out of paragraph 16 because by doing so the Appellants have been denied their rights to fair hearing and thus miscarriage of justice has been occasioned on them.

With respect to paragraph 21, 30(a) and 48 of the petition, the learned senior counsel for the Appellants submitted that, the Tribunal was wrong in striking out paragraph 21 on the ground that the twenty-five (25) polling units mentioned therein were not listed out which in fact the said, twenty-five (25) polling units were already identified and listed in paragraph 19 of the petition wherein the wards affected and the unit numbers were set out. As regard paragraph 30, it was submitted that the Tribunal completely misconceived the case of the Appellants in striking it out based on a non-existent ground. As per paragraph 48, it was submitted that the mere fact that the local government areas referred to therein were not found in paragraph 46 did not make the paragraphs nebulous, because the reference to paragraph 46 in paragraph 48 could not have been anything other than a typographical error in that paragraph 47 was to have been referred to and the Tribunal ought to have in the interest of justice ignored the error of reference given that the local government areas were clearly mentioned in paragraph 47.

The 1st Respondent’s reply on the two issues is at paragraph 6.18 at page 12 of the 1st Respondent’s brief of argument. Therein, it was contended that the Appellants have not provided any basis to show that the Tribunal was wrong in striking out those paragraphs and with particular reference to paragraph 48 which having referred to paragraph 46 cannot shift the blame on the Tribunal, for the error, because it is not the duty of the court to make a case for parties, as doing so will amount to a voyage in breach of fair hearing. More so that paragraphs 4(1) (d) and 4(2) of the First Schedule to the Electoral Act, 2010, as amended mandate a petitioner to clearly state the facts of the petition and divide them into paragraphs.

The 2nd Respondent’s reply on the issues is contained in page 5 of its brief of argument wherein learned senior counsel for the 2nd Respondent referred to paragraph 16 of the Appellants’ petition to submit that, besides being vague in its entirety as to what the Appellants are referring to, the question that readily comes to mind is, which polling units are the nine (9) polling units in Umuahia Urban ‘’or the 82 polling units in Ugwunagbo local government areas’’ and what are their numbers and their respective locations. He added that it is paragraph 16 of the petition that is being objected to and the particular clarification in other paragraphs should stand on their own. The learned counsel for the 2nd Respondent made the same submission in respect to paragraphs 21, 31(a) and 48 of the petition. On these positions, the following cases were referred to; (1) Ojong vs. Duke (2003) 14 NWLR (Pt. 841) 581 at 618;

Responding on the two issues, the learned senior counsel for the 3rd Respondent submitted that a scrutiny of the said paragraph 16 along with other incompetent paragraph will justify what the Tribunal did. He added that paragraph 16 in particular complained against unidentified ‘’9 polling units in Umuahia Urban ward’’ and ’’82 polling units in Ugwunagbo Local Government Area’’. He referred to paragraph 4(1) (d) of the First Schedule to the Electoral Act to argue that the use of the word ‘’shall’’ connotes obligatory compliance. For this point he relied on the cases of: (1) Ugwu vs. Ararume (2007) 12 NWLR (Pt. 1048) 367.
RESOLUTION
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.

ISSUE 4
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.

RESOLUTION:
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. From a wholistic reading of the pleadings of the Appellants, it is more than apparent that the grouse of the Appellants relate to the three local government areas of Obingwa, Osisioma and Isiala Ngwa North where the elections were characterized by the electoral irregularities and non-compliance with the Electoral Act, which resulted in massive over-voting as shown in the evidence of PW19, the INEC official whose evidence was not controverted by the Respondents. It is thus clear that Reliefs 3 and 4 are not contradictory of each other. If the votes which the 3rd Respondent wrongfully awarded the 1st Respondent in the three local government areas are discountenanced, the 1st Appellant would emerge as having scored the majority of lawful votes cast at the election. The situation here is quite different from what happened in the cases cited by the learned senior counsel for the Respondent.

The situation in the present appeal is quite different. There is no contradiction in the two reliefs of the Appellants. Without the scores in the three local government areas on the basis of which nullification of the declaration of the 1st Respondent was sought, it was still be possible for the 1st Appellant to emerge the winner of the election with the necessary spread. This consequently is not a case of approbating and reprobating or saying yes and no in response to the same thing. It is not a situation where the reliefs that are relevant and appropriate in the light of the facts contained in the pleadings of the Appellants/Petitioners won the case no benefit will inure to them due to incompetent reliefs. With due respect, the Tribunal erred in striking out reliefs 3 and 4. The order of the Tribunal striking out reliefs 3 and 4 is hereby set aside. Consequently, reliefs 3 and 4 of the Appellants’ petition are restored.
The issue is resolved in favour of the Appellants and against the Respondents.

ISSUE 13
Whether the learned trial Judges of the Tribunal were not wrong by holding that the 1st Appellant abandoned his claim because he did not personally testify?

RESOLUTION:
The learned senior counsel for the Appellants is correct that PW20 in his witness deposition at pages 185 to 248 particularly in paragraph 76 at page 247, Volume 1 of the record of appeal, adopted the reliefs claimed for by both Appellants. PW20 deposed: ‘’that the Petitioners pray as follows:’’ it is consequently a distortion of the evidence of PW20 to say that he adopted the claims for the 2nd Appellant/Petitioner only. As submitted by the learned silk, the Supreme Court case of: Jekpe vs. Alokwe (2001) 19 WRN 105 at 122; settles the matter. In this case, Uwaifo JSC (Rtd) at pages 267-268, paras. H-B observed viz:

The point to make here is that the principle of law that the evidence must be led to support averments in a statement of claim does not require a plaintiff to recite viva voice by heart in his testimony before the court each item of the reliefs he seeks in his statement of claim. A statement of claim may contain a variety of reliefs. The preparation of the reliefs sought by the plaintiff is a function of the legal practitioner who settles the statement of claim from the brief he receives from his client. A plaintiff is not expected to know the niceties of the reliefs derivable from the totality of the facts he confides to his solicitor. Mr Okeaya-Inneh SAN was quite right when he said the plaintiffs were claiming the reliefs stated in the amended statement of claim. It was therefore surprising that the learned trial judge thought that if a plaintiff did not in his oral evidence support his claim he would therefore lose his action.

Thus, if learned senior counsel for the Appellant makes his written submission on the reliefs claimed by the Appellants that should suffice, the Tribunal did not fortunately follow through with any pronouncement that the failure of the 1st Appellant/Petitioner to adopt his witness deposition meant he had abandoned the reliefs claimed. It wisely opted to accept PW20’s adoption of his written deposition containing the reliefs as adequate. It considered the reliefs at page 5,564, volume 5 of the appeal. It is in the light of the stance taken by the Tribunal that the rather lengthy and ingenuous submissions of Dr. Ikpeazu, SAN, for the 2nd Respondent is of no moment. The 2nd Respondent did not cross appeal and did not file a Respondent’s Notice to contend. His arguments that the reliefs personal to the 1st Appellant cannot be granted because election petition is sul generic and different from ordinary writ of summons in which a party to a suit need not testify cannot now be canvassed as that would be going contrary to the decision of the Tribunal without any cross appeal. Therefore the fact that the 1st Appellant/Petitioner did not testify to state his claim orally is of no moment and cannot be a valid reason to hold that he abandoned his claim.
This issue is again resolved in favour of the Appellants and against the Respondents.

ISSUE 14
Whether having regard to the pleadings and the evidence on record the learned trial judges of the Tribunal were not wrong in holding that the claims of the Petitioners were not grantable?
Learned senior counsel submitted that the Tribunal was wrong in holding the above. He submitted that the Appellants claimed five reliefs in the petition as shown at pages 83 to 84 of vol. 1 of the record of appeal. He further opined that it is not shown in the holding of the Tribunal above the exact reasons, as distinct from the mere generalisation in the holding, why the claims of the Petitioners/Appellants were not grantable. He submitted that it is, for instance, not known what aspect of the evidence the Tribunal had in mind, which relevant laws it had in mind and which decided cases would justify the bland holding that the Petitioners’ claims were not grantable.

Learned senior counsel submitted that every court or Tribunal has a duty to resolve properly all issues raised before it and to adduce intelligible reasons for its decisions. He further relied on the case of Uzuda vs. Ebigah LPER (2009) SC 348/2002 at page 22, that the duty is not merely satisfied by merely saying that based on the evidence, the law and decided cases, a claim is not grantable. Learned senior counsel urged us to uphold this issue and allow the related ground of appeal.

RESOLUTION:
We find it quite perplexing that the Tribunal instead of considering carefully the pleadings of and evidence adduced in the petition and determining all the issues raised by the respective parties, seemed more concerned with getting rid of as many of the reliefs as possible by striking them out for one acceptable reason or the other. All the reasons given are untenable and at the end of the day amount to depriving the Appellants for fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria. These generalizations that the claims of the Appellants/Petitioners were not grantable without giving plausible and definite reasons are unacceptable in law. In the case of Brawal Shipping vs. Onwudiko Co. (2006) 6 SCNJ 508 at 522, Uwaifo, JSC (Rtd) observed thus:

It is no longer in doubt that this Court demands of and admonishes the lower Courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issues decided by them could be faulted on appeal.

The view of the Tribunal that the claims of the Appellants were not grantable is clearly misconceived in law and facts.
The issue is resolved against the Respondents and in favour of the Appellants.