May 25, 2025
Legalpedia Citation: (2010) Legalpedia (CA) 61911 In the Court of Appeal HOLDEN AT ENUGU Wed Jul 7, 2010 Suit Number: CA/E/EPT/43/2008 (CON.), CA/E/EPT/44/2008 CORAM PARTIES 1. INDEPENDENT […]
CORAM
PARTIES
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. THE ELECTORAL OFFICER
3. THE LOCAL GOVT. RETURNING OFFICER
4. THE AMAMU WARD 1 RETURNING OFFICER
5. THE AMAMU WARD 2 RETURNING OFFICER
6. THE UZOAKWA WARD RETURNING OFFICER
7. THE IHITE WARD RETURNING OFFICER
8. THE OGBORO WARD RETURNING OFFICER
9. THE ULI WARD 1 RETURNING OFFICER
10. THE ULI WARD 2 RETURNING OFFICER
11. THE ULI WARD 3 RETURNING OFFICER
12. THE AMORKA WARD RETURNING OFFICER
APPELLANTS
1. BARRISTER CELESTINE O. EJEZIE
2. ALL NIGERIA PEOPLE’S PARTY
3. CHIEF SIMEON OHAJIANYAANDCHIEF SIMEON OHAJIANYAAND1. BARRISTER CELESTINE O. EJEZIE
2. ALL NIGERIA PEOPLE’S PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE ELECTORAL OFFICER
5. THE LOCAL GOVT. RETURNING OFFICER
6. THE AMAMU WARD 1 RETURNING OFFICER
7. THE AMAMU WARD 2 RETURNING OFFICER
8. THE UZOAKWA WARD RETURNING OFFICER
9. THE IHITE WARD RETURNING OFFICER
10. THE OGBORO WARD RETURNING OFFICER
11. THE ULI WARD 1 RETURNING OFFICER
12. THE ULI WARD 2 RETURNING OFFICER
13. THE ULI WARD 3 RETURNING OFFICER
14. THE AMORKA WARD RETURNING OFFICER
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Petitioner and the 1st Respondent were candidates of the All Nigeria Peoples Party (ANPP) and Peoples Democratic Party (PDP) respectively who contested in the Anambra State House of Assembly Ihiala Constituency 1 elections held on the 14th day of April 2007. At the end of the election, the 1st Respondent was returned as the winner of the election having scored the highest number of votes. Dissatisfied with the return of the 1st Respondent, the 1st-2nd Petitioners filed a petition at the Governorship and Legislative Houses Election Tribunal II, holden at Awka, Anambra State on grounds that the 1st Respondent was not elected by the majority of lawful votes cast, that the said election is invalid by reason of corrupt practices and non-compliance with the provision of the Electoral Act 2006. The Petitioners prayed the court that the election be declared null and void and that a fresh election be conducted. After consideration of the evidence, the petition was decided in favour of the Petitioners, the election was nullified and the 3rd Respondent/Appellant was ordered to conduct a fresh election. Dissatisfied with the decision of the tribunal, the 3rd Respondent appealed to the Court of Appeal. The 1st -2nd Respondents also filed a cross appeal against the decision of the tribunal. Both the appeal and cross appeal were consolidated, thus this instant appeal.
HELD
Appeal succeeds, Cross appeal dismissed.
ISSUES
1. “Was the Court below right in holding that the set of forms EC8A1 (duplicate Forms) tendered by the Petitioners/Respondents was the only believable result in the proceedings thereby rejecting the official results of the Independent National Electoral Commission?”?
2. Whether the Court below was right when it ordered the inclusion of the results for Uli Wards I and II as part of the results of the election.”?
3. Was the Court below right when it held that the official result tendered by INEC was not conclusive?”
RATIONES DECIDENDI
ELECTION PETITION – MEANING OF ELECTION PETITION – SECTION 140 OF THE ELECTORAL ACT, 2006
“Election Petition is basically presented before an Election Tribunal complaining of an undue election or undue return in respect of an election or return at an election; and therein the person elected or returned is joined as a party. See Section 140 of the Electoral Act, 2006.” PER A. LOKULO-SODIPE, JCA.
PARTIES TO AN ELECTION PETITION – INSTANCE WHERE THE PRESIDING OFFICERS MUST BE MADE PARTIES TO AN ELECTION PETITION
“It is certainly clear in law that the presiding officers whose duty it is to compile results at the polling stations/units must be made parties to an election petition when there is a challenge to the results generated by them. This, no doubt, is because they are the only persons that can adequately defend their acts of omission or commission in respect of the results in question. See Ekpenyong V. Duke (2009) All FWLR (Pt. 470) 755 at 779.” PER A. LOKULO-SODIPE, JCA.
GROUND OF APPEAL – LEAVE OF COURT MUST BE SOUGHT BEFORE AN APPELLANT CAN ARGUE A GROUND OF APPEAL NOT CONTAINED IN THE NOTICE OF APPEAL.
“To enable an appellant argue a ground of appeal not contained in the notice of appeal is leave in that regard. Also see the cases of Nigerian Agricultural And Co-Operative Bank Ltd V. Salem Farms Ltd [2006] All FWLR (Pt. 320) 1174 at 1187; and Tahir & Anor V. Bank Of The North (2007) All FWLR (Pt. 288) 1072 at 1090 – 1091.” PER A. LOKULO-SODIPE, JCA.
ELECTION PETITION – NON-COMPLIANCE WITH THE RULES OF THE ELECTORAL ACT WILL BE FATAL TO THE PETITION.
“An election petition is Sui generis. It is neither a civil nor a criminal proceedings any slight default in compliance with the prescribed rules of the Electoral Act will be fatal to the petition. See Awuse v. Odili (2004) 8 NWLR (Part 876) at 509.” PER A. LOKULO-SODIPE, JCA.
ADDITIONAL GROUNDS OF APPEAL –AN APPELLANT WHO WISHES TO FILE ADDITIONAL GROUNDS OF APPEAL OUT OF TIME, IS REQUIRED TO SEEK THE LEAVE OF COURT.
“The position of the law is clear when it comes to filing additional grounds of appeal. It is that all that is required of an appellant, who has appealed within time and wishes to file additional grounds out of time, is to obtain the leave of this Court to do so. See the decision of this Court in the case of Integrated Data Services V. Adewumi (2006) All FWLR (Pt. 292)143 at 154.” PER A. LOKULO-SODIPE, JCA.
PARTIES IN AN ELECTION PETITION – WHERE AN ELECTION IS CHALLENGED BASED ON THE CONDUCT OF AN ELECTORAL OFFICER; SUCH ELECTORAL OFFICER MUST BE JOINED AS A PARTY.
“A petitioner who seeks to impugn the conduct of an election by an officer of the electoral body is required to join the officer concerned as a party.” PER A. LOKULO-SODIPE, JCA.
RESPONSIBILITY OF PRESIDING OFFICERS – THE PRESIDING OFFICERS CANNOT BE EXCLUDED FROM CULPABILITY IN THE CONDUCT OF AN ELECTION.
“Because of the enormous powers conferred on the Presiding officer he cannot be excluded from culpability in an election conducted under the provisions of 2006 Electoral Law. See Kallamu vs. Gurin (2003) 16 NWLR (Pt. 849) 493.” Per A. LOKULO-SODIPE, JCA.
PRELIMINARY OBJECTION – WHEN A PRELIMINARY OBJECTION IS RAISED IN RESPECT OF AN APPEAL, SAME SHOULD BE CONSIDERED FIRST
“The settled position of the law that when a preliminary objection is raised in respect of an appeal, the same should be considered first. See Yaro V. Arewa Construction Ltd (2008) All FWLR (Pt. 400) 603. This is because if the said preliminary objection is upheld there will be no need to consider the appeal on the merit. See Kalagbor V. General Oil Ltd (2008) All FWLR (Pt. 418) 303. This is particularly so when the appeal in question is before the final Court seised of the same.” PER A. LOKULO-SODIPE, JCA.
LOCUS STANDI – FOR A PERSON TO HAVE LOCUS STANDI TO APPEAL, SUCH PERSON OUGHT TO HAVE THE RIGHT TO INSTITUTE THE ACTION IN ACCORDANCE WITH SECTION 6 (6) (B) OF THE 1999 CONSTITUTION.
“For a party to have locus standi to appeal a decision, such a party under Section 6(6)(b) of the 1999 Constitution ought to have a right to institute the action.” PER A. LOKULO-SODIPE, JCA.
JOINDER OF NECESSARY PARTIES – WHEN A CONTROVERSY IN A PETITION CANNOT BE EFFECTIVELY RESOLVED IN THE ABSENCE OF A PERSON, NON-JOINDER OF SUCH A PERSON CAN RENDER THE PETITION VOID.
“The proviso to Section 144(2) of the Electoral Act, 2006 has indeed not introduced any radical change to the position of the law when it comes to joinder of necessary parties. All that the proviso does is to save a petition from being declared void due to the mere non-joinder of any official of INEC or any person whose conduct is complained of at an election once it is shown that the official or person acted as an agent of INEC in the election and if INEC is made a party. It does not say that the non-joinder of such a party cannot operate to render a petition void when the controversy in the petition cannot be effectively resolved in the absence of such a person as a party” PER A. LOKULO-SODIPE, JCA.
CROSS-APPEAL – A CROSS-APPEAL IS INDEPENDENT OF THE MAIN APPEAL EVEN WHERE THEY HAVE SOME AFFINITY.
“The law is that a cross-appeal is an independent appeal having a life of its own in the appellate process though it could have some affinity with the main appeal as they criss-cross.” PER A. LOKULO-SODIPE, JCA.
ELECTION PETITION – NATURE OF ELECTION PETITION
“It is settled law that election petitions are sui generis, and that not all the incidences of a normal or ordinary civil action are applicable to election petitions. See Bamigboye V. Saraki (2009) All FWLR (Pt. 484)1573 at 1594 -1595; and Awuse V. Odili (2004) All FWLR (Pt. 212) 1611 at 1649.” PER A. LOKULO-SODIPE, JCA.
ISSUE OF JURISDICTION RAISED ON APPEAL – WHETHER LEAVE OF THE APPELLATE COURT NEED TO BE SOUGHT BEFORE JURISDICTION CAN BE RAISED ON APPEAL
“The current judicial trend is that leave of the appellate court need not be sought and obtained before the issue of jurisdiction is raised on appeal. In this regard see the decision of the Supreme Court in each of the following: M/V Gongola Hope v. Smurfit Cases Nig. Ltd (2007) All FWLR (Pt. 388) 1005 at 1018; Benjamin Oyakhire v. State (2007) All FWLR (Pt. 344) 1 at 10; Elugbe v. Omohkhafe (2005) All FWLR (Pt. 243) 629; as well as the decisions of this court in Hinterland Resources Ltd v. Fixity Investment Ltd (2007) All FWLR (Pt. 355) 487 at 500; and Minister of Works and Housing v. Shittu (2008) All FWLR (Pt. 401) 847 at 863.” PER A. LOKULO-SODIPE, JCA.
JOINDER OF PARTIES IN AN ELECTION PETITION – IT IS MANDATORY TO JOIN THE PRESIDING OFFICERS AS PARTIES IN AN ELECTION PETITION.
“The presiding officer or any other who took part in the conduct of the election, such persons for the purpose of the Act shall be joined in the election petition. See Subsection (144) and 2 of the Electoral Act, 2006 on the requirement of the law when it used the word shall which is mandatory. Therefore, failure to join the Presiding Officers is fatal to the petition.” PER A. LOKULO-SODIPE, JCA.
MIS-JOINDER AND NON-JOINDER OF PARTIES – MIS-JOINDER OR NON-JOINDER OF A PARTY SHALL NOT DEFEAT AN ACTION
“The law has always been that the mis-joinder or non-joinder of parties shall not defeat an action. That in all causes or matters the court shall deal with the matter in controversy so far as regards the rights and interest of parties actually before it.” PER A. LOKULO-SODIPE, JCA.
ELECTION PETITION – CATEGORIES OF PERSONS ENTITLED TO PRESENT AN ELECTION PETITION
“Persons entitled to present election petitions are set out in Section 144(1) of the Electoral Act, 2006 and they are (i) a candidate in the election; and (ii) a political party which participated in the election.” PER A. LOKULO-SODIPE, JCA.
NON-JOINDER OF PRESIDING OFFICERS IN AN ELECTION PETITION – EFFECT OF NON-JOINDER OF PRESIDING OFFICERS IN AN ELECTION PETITION
“The non-joinder of the presiding officers rendered the Petition presented before the Tribunal as having not been properly constituted. Issues in dispute cannot be resolved in an improperly constituted action. See Mozie V. Mbamalu [2006] All FWLR (Pt. 341) 1200; and Ayorinde V. Oni [2000] FWLR (Pt. 3) 445.” PER A. LOKULO-SODIPE, JCA.
FORM OF AN ELECTION PETITION – AN ELECTION PETITION MUST CONFORM WITH THE RULES PROVIDED IN THE ELECTORAL ACT AND THE RULES OF NAURAL JUSTICE.
“An election petition must adhere strictly to rules as provided in the Electoral Act, and the body of Law in particular the rules of natural justice of fair hearing which is enshrined in our 1999 Constitution.” PER A. LOKULO-SODIPE, JCA.
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1999.
2. Electoral Act, 2006
3. Evidence Act
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