Reliefs sought by a petitioner must be clearly stated in line with electoral act’s provisions
BARR. BENJAMIN IOREMBER WAYO & ANOR v. HON. ROBERT AONDONA TYOUGH & ORS (2019) LPELR-48779 (CA)
In the Court of Appeal
In the Makurdi Judicial Division
Holden at Makurdi
On Friday, 1st November, 2019
Suit No: CA/MK/EP/HR/29/2019
Before Their Lordships:
JUMMAI HANNATU SANKEY, JCA
ONYEKACHI AJA OTISI, JCA
JOSEPH EYO EKANEM, JCA
1. BARR. BENJAMIN IOREMBER WAYO
2. ALL PROGRESSIVES CONGRESS (APC) -Appellant(s)
1. HON. ROBERT AONDONA TYOUGH
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
LEAD JUDGMENT DELIVERED BY ONYEKACHI A. OTISI, J.C.A.
FACTS OF THE CASE
This appeal is against the judgment and orders of the National and State Houses of Assembly Election Tribunal sitting in Makurdi, Benue State.
The facts of the case are that on 23/2/2019, the 3rd Respondent conducted a general election into the Kwande/Ushongo Federal Constituency of Benue State of Nigeria, in which the 2nd Appellant fielded the 1st Appellant as its candidate for the election, while the 2nd Respondent fielded the 1st Respondent as its candidate for the same election. The Appellants alleged that on 24/2/2019, when the result was collated, the 3rd Respondent, with the agents of the 1st and 2nd Respondents carted away the election results and other election materials to an unknown destination and on 26/2/2019, in Makurdi, Benue State, announced the 1st Respondent as a winner of the said election.
Dissatisfied with the outcome of the election, the Appellants approached the Tribunal with a petition filed on 17/3/2019. The Tribunal considered the said petition of the Appellants and the defence of the Respondents, and on 9/9/2019, dismissed the petition as lacking in merit. Further dissatisfied, the Appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues: 1. Whether or not the striking out of ground 1 of the petition by the National and State Houses of Assembly Election Tribunal, premised on the use of the words, “and Manual for Election officials, 2019” was right and did not occasion a miscarriage of justice. 2. Whether the pleadings of the Appellants were sufficient to sustain the allegation in ground 2.
APPELLANT’S COUNSEL SUBMISSIONS
The Appellant submitted that Section 160 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has granted powers to the Independent National Electoral Commission (INEC) to make rules and/or guidelines to regulate the conduct of an election. Sections 73 and 153 of the Electoral Act 2010 (as amended) also mandated INEC to make rules and provide for regulations that may guide the conduct of an election. The Manual for Election Officials, 2019 Guidelines for the conduct of the 2019 general election were made in the exercise of these powers. This was fortified by the Supreme Court in Falake v. INEC (2017) 3NWLR (pt. 1543) 16.
It was therefore argued that striking out ground one of the petition on the sole reason that by the use of the words “and Manual for election officials 2019,” the ground was outside the ambit of Section 138(1) of the Electoral Act 2010 (as amended) was in error since the petition of the Appellants contained facts pointing to non-compliance with the provisions of the Electoral Act 2010, as amended.
RESPONDENT’S COUNSEL SUBMISSIONS
The Respondents submitted that the trial tribunal was correct when it followed the decisions of the Court of Appeal and those of the Apex Court in striking out ground 1 of the petition for being incompetent, having regard to the provisions of Section 138 (1) and (2) of the Electoral Act, 2010 (as amended) and the recent decisions of the Court of Appeal and the Apex Court on the couching of grounds of a petition. Reliance was placed on Nyesom v Peterside (2016) 7 NWLR (Pt. 1512) 452. It was argued that couching ground 1 of the Appellants’ petition to include complaints of non-compliance with the Manual for Election Officials rendered the ground incompetent as it violated the provisions of Section 138(2) of the Electoral Act, and that the trial tribunal was bound to follow the decision of the Apex Court. Respondents submitted that the legality of the Manual or the source of the 3rd Respondent’s powers in making the said Manual was not in issue in the instant case.
RESOLUTION OF ISSUES
In resolving issue one, the Court placing reliance on the following cases Ojukwu v. Yar’adua (2009) LPELR-2403 (SC); Muhammed & Anor v. Abdullahi & Ors (2015) LPELR-40632 (CA); PDP v. El-Sudi & Ors (2015) LPELR-26036(CA) held that a petitioner in stating the grounds for the petition is expected to either adopt or copy word for word the syntax of Section 138(1) or use his own words, if he so chooses, but he must convey the grounds within the parameters of Section 138(1). The mere addition of other words would not, without more, shoot down a ground of election petition as incompetent if the ground in its entirety falls within the parameters of Section 138(1). However, where there are added words, which take all the grounds outside the borders of Section 138(1), then that would be the end of the petition as the grounds for its commencement would be incompetent.
Furthermore, on whether the petitioner’s ground for the petition, which included non-compliance with Manual for Election Officials 2015 and General Election, approved Guidelines and Regulations was within the purview of Section 138(1)(b) of the Electoral Act 2010 as amended. The Court relied on the decision of the Apex Court in Nyesom v Peterside (2016) 7 NWLR (Pt. 1512) 452 and held that although the 3rd Respondent is endued with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138 (2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election. Therefore, the act or omission complained about by a petitioner must be covered by the Electoral Act itself to qualify as a ground for bringing a petition, and not merely be an act or omission found in the Regulations and Guidelines, albeit made under the Act. That failure to follow the Manual and Guidelines, which were made in exercise of the powers conferred by the Electoral Act cannot, in and of itself render the election void.
According to the court, in the instant case, the failure to use the smart card reader by officials of the 3rd Respondent, without more, cannot be ground for invalidating an election. The Court relied on Chabo & Anor v Achir & Ors., Appeal No:CA/MK/EP/HA/27/2019 delivered on 25/10/2019. The Court stated that neither the card reader nor the margin of win principle, as innovative and commendable as they are, are found in the Electoral Act, 2010, as amended. The established method for accreditation of voters as provided for in Section 49 of the Electoral Act is by use of the voter’s card and the voter’s register. By Section 69 of the Act, the winner of an election is the candidate that scores the highest number of votes. The winner or likely winner of an election is not determined by the number of persons who are registered voters, who may or may not decide to exercise their voting rights at all.
Moreover, the provisions of Section 138(2) as well as Section 139(1) of the Act cannot be ignored; 138(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. 139(1) An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election. Conclusively, the Court held that the trial Tribunal rightly struck out ground 1 of the petition presented by the Appellants.
In resolving issue two, the Court noted that a look at the pleadings in support of ground 2 would immediately reveal that the complaint of the Appellants revolved around the non-use of the card reader in accreditation of voters in some unspecified polling units, non-accreditation of voters in some unspecified polling units, and over voting in some unspecified polling units. There was however no pleading in the petition as to: the votes cast at the various polling units; the votes alleged to have been illegally credited to the 1st Respondent; the votes which ought to have been credited to petitioners; and the votes which should be deducted from that of the 1st Respondent. In view of these, the Court relying on Ojiogu v Ojiogu & anor (2010) LPELR-2377 (SC); CPC v INEC (20110 LPELR-8257 (SC) held that facts are pleaded and evidence is adduced in line with the facts pleaded and it is elementary that evidence on facts not pleaded go to no issue.
The Court agreed with the Respondents that the petition ought to have been dismissed upon the striking out of ground 1, there being no facts to support ground 2. According to the court, the confusion of the trial tribunal is traceable to the sole issue it formulated for the determination of this appeal. An issue which was fundamentally flawed, being completely out of sync with the provisions of Section 138(1)(c), and in consequence, out of sync with what was required to prove the petition on ground 2. Hence the issue as formulated by the trial tribunal went out of the purview of the provisions of Section 138(1)(c) and therefore was adjudged incompetent.
The Court dismissed the appeal for lacking in merit.
G. T, Yongo, Esq., with him S. A. Akpehe, Esq., and T. Nzughul, Esq. -For Appellant(s)
T. D. Pepe., Esq., with him, E. O. Agena, Esq. -For the 1st Respondent
O. P. Ogar, Esq., holding the brief of D.E. Okoro, Esq. -For 3rd Respondent
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