Whether A Petitioner Can Claim That He Won an Election by Scoring Majority of Valid Votes Cast and at the Same Time Seek for The Nullification of The Election

CASE TITLE: AGBU v. INEC & ORS (2023) LPELR-61490 (CA)

JUDGMENT DATE: 28TH NOVEMBER, 2023

JUSTICES: CHIOMA EGONDU NWOSU-IHEME, JCA
PETER OYINKENIMIEMI AFFEN, JCA
ASMA’U MUSA MAINOMA, JCA

DIVISION: ABUJA

PRACTICE AREA: ELECTION PETITION

FACTS:

This cross-appeal stems from a Governorship Election Tribunal judgment in Taraba State issued on September 30, 2023. The 2nd and 3rd Cross Respondents filed the original petition against Kefas Agbu (Cross Appellant) challenging his election as Governor of Taraba State, conducted by INEC on March 18, 2023. Cross Appellant ran under the PDP, while the 2nd Cross Respondent, Yahaya Mohammed Sani, was sponsored by the NNPP.

INEC declared Cross Appellant the winner with 257,926 votes. Dissatisfied, the 2nd and 3rd Cross Respondents challenged the election’s validity, alleging non-compliance with the Electoral Act and disputing the majority of lawful votes cast. The relief sought included nullifying Cross Appellant’s certificate of return and declaring the 1st Petitioner (2nd Cross Respondent) as the winner. Alternatively, they requested a repeat election in affected polling units due to non-compliance.

The Tribunal dismissed the petition, confirming Cross Appellant’s victory. Despite this, the Cross Appellant is dissatisfied with parts of the judgment, leading to the current cross-appeal.

ISSUES FOR DETERMINATION:

The Court determined the cross-appeal on the following issues, viz:

(i) Whether the Tribunal breached the Cross Appellant’s right to a fair hearing when they failed to consider and resolve germane issues submitted to them by the Cross Appellant, to wit:

(ii) Whether the Tribunal was right in overruling the Cross-Appellant’s Preliminary Objection to the effect that the grounds of the Petition are inconsistent with one another, rendering the petition speculative and therefore incompetent.

(iii) Whether the Tribunal was right when it held that:

“This Honourable Tribunal is in agreement with the Petitioners that the grounds of the petition are not inconsistent with the reliefs sought in this petition. Although some of the reliefs might have been inelegantly drafted, they are not inconsistent with one another. This Tribunal therefore agrees with the submission of the Petitioners that the reliefs are not inconsistent with one another.”?

(iv) Whether the Tribunal was right in refusing to strike out paragraphs of the petition that were generic, speculative, vague, and not pleaded with specificity and sufficient particulars for the alleged acts of non-compliance. (Distilled from Ground 4 of the Notice of Cross-Appeal.)

(v) Whether the Tribunal was right in holding that the witness statements adopted by the 2nd and 3rd Cross Respondents were competent in spite of the fact that the Hausa versions were not adopted.

Counsel Submission:

Counsel for the Cross-Appellant argued that the Tribunal erred in rejecting their preliminary objection, contending that the grounds and reliefs pleaded by the 2nd and 3rd Cross-Respondents were inconsistent with one another and rendered the petition speculative and incompetent. They asserted that the grounds upon which an election may be challenged should be mutually exclusive and not contradictory, citing several cases to support their argument. Furthermore, they claimed that the petitioners were attempting to have it both ways by alleging non-compliance with the election while also claiming victory, which is legally untenable.

They opined that when the grounds of a petition are found to be inconsistent, the only recourse is to strike out the petition as incompetent. They argued that alternative reliefs cannot be pleaded based on the same set of facts and that the petitioners failed to present alternative facts to support their claims. Thus, they urged the Court to resolve these issues against the petitioners and strike out the petition.

In response, counsel for the 2nd and 3rd Cross Respondents argued that the law permits a petitioner to challenge an election on any of the grounds specified in the Electoral Act, refuting the notion that the grounds are incompatible. They maintained that the reliefs sought were tied to the grounds of the petition and were grantable in the alternative based on the evidence presented. They emphasized the importance of doing substantial justice in election petition cases, considering the rights of the parties involved as well as the electorate.

DECISION/HELD:

In the final analysis, the Court allowed the cross-appellant’s preliminary objection, and Petition No. EPT/TR/GOV/02/2003 was accordingly struck out.

RATIO:

ELECTION PETITION: ELECTION PETITION PROCEEDINGS: Whether a petitioner can claim that he won an election by scoring majority of valid votes cast and at the same time seek for the nullification of the election

“It seems to me obvious that the main reliefs claimed by the 2nd and 3rd Cross Respondents are patently inconsistent with one another. The Tribunal took the view [at pp. 2628–2629 of the record] that although some of the reliefs might have been inelegantly drafted, they are not inconsistent with one another as it was not under any obligation to grant reliefs that were not proved. With great respect, I differ from the eminent Learned Judges of the Tribunal. The issue is not about inelegance in drafting reliefs or the Tribunal not being bound to grant reliefs that are not proved. No. Rather, the relevant inquiry is as to the propriety, and legal consequence, of praying the Tribunal to make a determination that the election leading to the declaration and return of the Cross Appellant as duly elected is invalid by reason of non-compliance with the provisions of the Electoral Act 2022 in one breadth and urging the Tribunal to make a determination that the 1st Cross Respondent was duly elected by a majority of lawful votes cast and ought to have been returned as the winner of the same election for the office of the Governor of Taraba State held on 18/3/23, having satisfied all the constitutional requirements in another breadth.

There is no denying that these are mutually contradictory and/or inconsistent reliefs. Significantly, the reliefs have not been claimed in the alternative but as main reliefs. I would hate to think that the 2nd and 3rd Cross Respondents (as Petitioners) can validly claim any entitlement to be returned as the winner of the election for the office of the Governor of Taraba State held on March 18, which, in their estimation, was invalid by reason of non-compliance with the provisions of the Electoral Act 2022 that governed the conduct of the election. In BUHARI v. YUSUF [2003] 14 NWLR (PT 841) 446, Ayoola, JSC, opined [at pp. 518 and 526] that where the challenge mounted in a case was the validity of the entire election, there would be no occasion for the tribunal or Court to declare any candidate as elected. In REV. WILSON SABIYA v. ALHAJI BAMANGA TUKUR & ORS (1983) LPELR-SC.112/1983, the Supreme Court characterized a scenario where the petition was based on a catalogue of electoral malpractices that should lead to the nullification of the election, yet the petitioner sought to be returned as duly elected on the same evidence as “an impossible feat.”. See also IGE v OLUNLOYO (1984) 7 SC 258, OPIA v IBRU [1992] 3 NWLR (PT 231) 659, AMOSUN v INEC & ORS (2010) LPELR-4943(CA) 1 at 65, ONUIGWE v EMELUMBA (2010) ALL FWLR (PT. 517) 698 at 732, DINGYADI v WAMMAKO [2008] 17 NWLR (PT 1116) 395 at 457, IN RE: ONWUBUARIRI (2019) LPELR-49121(CA), NEKA v KUNINI (2015) LPELR-25651(CA) and AGBAJE v INEC (2015) LPELR-25651(CA).

A relief seeking nullification on the ground that the election is invalid for non-compliance with the provisions of the Electoral Act, and another seeking the nullification of the respondent’s return as the winner on the ground that ‘he was not duly elected by a majority of the lawful votes cast at the election’, which relief is often accompanied by a consequential relief seeking ‘the return of the petitioner as the elected candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the Constitution and the Act’ are a contradiction in terms and can only be sought in the alternative by a petitioner in an election petition. A petitioner is not at liberty to seek both reliefs together because he is required by law to be consistent in his pleadings; he cannot plead non-compliance and compliance with the law at the same time. Where he does so, not in the alternative but as main reliefs as in the matter on appeal, the said reliefs are liable to be struck out or discountenanced for being incongruous. See JUDE UCHENNA OBIEKWE & ANOR v. AYINLA (2019) LPELR-50785(CA) 1 at 29.

While it is conceded that a petitioner may challenge an election on any of the three grounds specified in S. 134(1)(a), (b), and (c) of the Electoral Act 2022, that is certainly not a carte blanche or warrant for him to rely on inconsistent grounds or claim inconsistent reliefs. The language of the Act is that an election may be questioned on ANY [but not ALL] of the grounds. It is patently incongruous to rely on the statutory grounds for challenging an election as provided in S. 134(1)(b) and (c) of the Electoral Act, 2022, based on the same set of facts and proceed to simultaneously claim invalidity of the election by reason of non-compliance and entitlement to be returned as duly elected in that same election—not in the alternative but as main reliefs—as the 2nd and 3rd Cross Respondents have done. There is neither a legal nor factual pedestal upon which a petitioner who pleads invalidity of the entire election by reason of non-compliance could possibly stand to claim entitlement to be declared and returned as duly elected in that very same election on the strength of intricately intertwined facts. Neither law nor equity will allow him to do so. A party must be consistent in stating his case and consistent in proving it. See AJIDE v. KELANI [1985] 3 NWLR (PT. 12) 248 at 269.” Per AFFEN, J.C.A.