EXAMINING THE PROVISION OF PARAGRAPH 15 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2022 AND COURT’S DECISION IN THE CASE OF OMBUGADU V INEC & ORS.

EXAMINING THE PROVISION OF PARAGRAPH 15 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2022 AND COURT’S DECISION IN THE CASE OF EMMANUEL DAVID OMBUGADU & ANOR V INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC); Whether Paragraph 15 of the First Schedule to the Electoral Act, 2022 has provided a leeway for a Respondent to present a counter petition without the requirement of filing a Cross Petition?

INTRODUCTION

On 19th January, 2024, the Supreme Court of Nigeria gave its decision on perhaps one of the most contentious and debated gubernatorial election appeals in the just concluded election cycle putting an end to a quite a number of debatable and controversial issues which had been brought into light as a result of the said election. This was the appeal lodged by the People’s Democratic Party (PDP) and its Gubernatorial candidate, Emmanuel David Ombugadu challenging the Court of Appeal’s finding that the Election Petition Tribunal sitting in Lafia erred fundamentally in law when the Tribunal found that his petition was with merit and accordingly withdrew the Certificate of Return issued to the All Progressive Congress (APC)’s candidate, His Excellency, Alhaji Audu Sule. Whilst the Supreme Court gave its decision which said decision holds as the final answer to whatever question may be, a fundamental question remains; did the finding of the Supreme Court put an end to the litigation or provide an adequate answer to the complex issues which were evaluated in the said appeal.

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EMMANUEL DAVID & ANOR V INDEPENDENT NATIONAL ELECTORAL COMMISSION; THE FACTS.

A brief background of the case at various stages from the Tribunal to the Supreme Court is that the candidate of the People’s Democratic Party as well as the party as Petitioners before the Election Petition Tribunal sitting in Lafia challenged the declaration and return made by the Independent National Electoral Commission (INEC) in declaring the candidate of the All Progressive Congress (APC), His Excellency, Alhaji Sule Audu as the Winner of the Election into the office of Governor of Nasarawa State which held on the 18th day of March 2023. It was the Petitioners’ contention at the Tribunal that Alhaji Sule Audu did not score the majority of lawful votes cast for a myriad of reasons ranging from inaccurate computation of the results declared at the Polling units in the prescribed FORM EC8A to the Ward collation results FORM EC8B respectively, to complaint of over-voting in four (4) limited polling units, to unlawful cancellation of votes. Issues were joined and all three parties sued as Respondents inclusive of the Independent National Electoral Commission (INEC), Alhaji Audu Sule and All Progressive Congress (APC) all filed their respective replies to counter the facts and allegations made by the Petitioners. Worthy of note is that Alhaji Audu Sule and All Progressive Congress (APC) sued as the 2nd and 3rd Respondents raised objections to some of the votes credited to the Petition pursuant to Paragraph 15 of the First Schedule to the Electoral Act, 2022. At the end of the trial, the Tribunal found the Petition of the Petitioners meritorious having established their claims. On appeal to the Court of Appeal, having considered all four appeals emanating from the Tribunal’s decision, the Court of Appeal found that the Tribunal’s holding was flawed for also a myriad of reasons ranging from failure to consider the objection raised by Alhaji Audu Sule albeit through his legal team challenging jurisdiction, failure of the Petitioners to prove over-voting? in the four (4) polling units etc. and in alternative found that the Petitioners failed to prove the ground of the petition to entitle them to the reliefs. Upon further appeal to the Supreme Court by the People’s Democratic Party and its candidate, the Supreme Court in giving its decision agreed with the findings of the Court of Appeal and dismissed the appeal for lacking in merit. For the purpose of this discourse, I shall be adopting the designation of parties at the trial court.

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THE PURPORTED AND PRESENT CONSTRUCT OF PARAGRAPH 15 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2022

Amongst many complex and novel issues debated at the Election Tribunal, Court of Appeal and the Supreme Court ranging from the competence of subpoenaed witnesses to testify orally without witness statement on oaths frontloaded, the requirement of polling unit agents to testify even where the malpractice is manifest on the electoral results, competent witnesses to testify as to events that transpired at the Ward Collation Centers, to the admissibility of documents tendered from the bar by the Respondents having not been frontloaded at time of filing their replies. One of the key issues which was decided but seems unresolved is whether paragraph 15 of the First Schedule to the Electoral Act, 2022 permits a Respondent to an Election Petition to by way of his Reply raise objections to the votes credited to the Petitioners bearing in mind that the said action would amount to bringing a cross petition, or a counter petition or a counter-claim.

The relevant provision of the First Schedule to the Electoral Act, 2022 is hereby reproduced for ease of emphasis. Paragraph 15 provides thusly:

“When a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.”

The proper interpretation of this provision would become the subject of heavy contention by the Petitioners and the Respondents particularly the 2nd and 3rd Respondents who both had set out in their Replies, the particulars of votes objected to as credited to the Petitioners. Interestingly, by the same Replies, the 2nd and 3rd Respondents also objected to some of the votes credited to themselves by INEC in certain polling units. The grounds for their contention were premised on alleged cases of over-voting in some polling unit areas where the Petitioners led and improper collation of their votes in some other areas in that their scores were reduced in some polling units and that of the Petitioners were increased. Their arguments against and for the said paragraph are discussed below.

The Petitioners on their part contended that the proper interpretation of this section was to the effect that the 2nd and 3rd Respondents could only properly object to the votes credited to the Petitioner by way of a Cross Petition or a Counter Petition which ought to have been filed alongside the 2nd and 3rd Respondents’ respective replies. At any rate, assuming without conceding that they could even raise such objections pursuant to paragraph 15 of the First Schedule to the Electoral Act, 2022, the leeway or opportunity provided under the said paragraph was to the effect that any objection to the votes sought to be raised and/or raised by the 2nd and 3rd Respondents should be limited to the areas in contention which formed the substratum of the petition as presented by the Petitioners. They postulated that their Petition as presented before the Tribunal was a complaint against the actions, inactions and conduct of the Independent National Electoral Commission (INEC) in wrongfully returning the 2nd Respondent, Alhaji Audu Sule as the Governor of Nasarawa State despite not polling majority of votes. Furthermore, by the nature of their stance as Respondents who are beneficiaries of INEC’s decision and having alluded by their respective Replies that the election was proper and devoid of any malpractice, they could not turn and around to raise any objections to votes credited to the Petitioners and particularly themselves without filing a cross petition or counter petition. They relied on, amongst a host of other cases, the case of UGWU V. IGWE (1992) LPELR-127961 (CA)

The 1st - 3rd Respondents on the other hand objected to this line of argument. They argued that the competence of the paragraphs finds its root from the provisions of Paragraph 12 and 15 of the First Schedule to the Electoral Act, 2022 and there was no need to come by way of a cross petition. They submitted that the 2nd and 3rd Respondents’ Replies were such that they had elected to join issues with the Petitioners (now as Cross Appellants) and went further to highlight areas where they perceived that votes were not properly calculated or incorrectly entered for both parties. As a way to conclude, they posited that there was no provision for a cross petition in the Electoral Act, 2022 nor the First Schedule to the Electoral Act. Amongst a host of other cases, they placed reliance on ADAMU MUHAMMED & ANOR V INEC & ORS (2015) LPELR-40631(CA).

Interestingly, at the Trial Tribunal, Court of Appeal and Supreme Court, all the issues were resolved against the Petitioners and in favour of the Respondents. As it would appear, the Court of Appeal in the case of ADAMU MUHAMMED & ANOR V INEC & ORS (2015) LPELR-40631(CA) Per JUMMAI HANNATU SANKEY, JCA duly considered the scope and interpretation of paragraph 15 of the First Schedule and posited thusly:

“In the event that the 3rd Respondent also intends to raise a challenge to the votes credited to the Petitioners on the ground that they are invalid due to certain non-compliances with some provisions of the Electoral Act such as votes cast by under-aged voters, (as has been contended by the 3rd Respondent in paragraphs 31-54 of his "List of objection"), I am of the view that Paragraph 15 gives him the leeway to do this, and this does not have to be done by means of a Cross-Petition. … A cursory look at these paragraphs shows that they are indeed in direct compliance with Paragraph 15 in that what they contend is that the votes ascribed/credited to the Petitioner from the Polling units named therein were not lawful and valid votes by reason of the complaints set out in these averments, which votes he contends, are so invalidated for not conforming to the provisions of the Electoral Act, thereby amounting to non-compliance.

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To be fair, this is exactly what the 3rd Respondent has done in the paragraphs complained of. I am therefore of the considered view that, contrary to the submissions of learned Counsel to the Appellants, the 3rd Respondent did not over-step the bounds of Paragraph 15 when he went ahead in paragraphs 31-54 to set out the votes objected to, the reasons for objecting to those votes and the means/manner in which he intends to prove that those votes are invalid. I am of the opinion that it is immaterial that these reasons are due to non-compliance with the provisions of the Act, as this does not detract from his right to object and give reasons therefore.”

In other words, the present jurisprudence on this subject is to the effect that where a petitioner is alleging amongst other possible grounds that the Respondent who was returned did not score majority of lawful votes, the Respondent would be permitted by Paragraph 15 of the First Schedule to set out particulars of votes objected to and how he or she intends to prove them at the trial.?

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THE PERCEIVED LEGAL IMPLICATIONS?

Having considered the arguments for and against the scope and applicability of Paragraph 15 of the First Schedule at different stages of the proceedings in Emmanuel David Ombugadu & Anor v Independent National Electoral Commission & 2 Ors as well as one of the leading authorities on the discourse, it becomes imperative that we consider the perceived legal implications of this decision.

It bears reminding that in the Petition filed by the candidate of the People’s Democratic Party (PDP), the Election Tribunal sitting in Lafia in adopting an interpretation to the provision of Paragraph 15 of the First Schedule to the Electoral Act, 2022 relied on the case of ADAMU MUHAMMED & ANOR V INEC & ORS (2015) LPELR-40631(CA) in dismissing the objection raised by the Petitioners to the 2nd and 3rd Respondents. On appeal to the Court of Appeal, the Learned Justices of the Court of Appeal in disagreeing with the Petitioners (as 1st and 2nd Cross Appellants) relied on the same authority. On further appeal to the Supreme Court, the learned justices of the Supreme Court agreed with the Court of Appeal and dismissed the appeal as unmeritorious.

Interestingly, whilst this case was decided by the Apex court, it becomes rather imperative to conduct an enquiry as to whether the question of its scope and applicability was truly answered. Admittedly, there is hardly any concept or principle in law which is without controversy. However, it is my view that by adopting this particular interpretation, the Supreme Court and the Electoral Act, 2022 have left a number of questions unanswered such as:

-???????? Whether or not a Respondent(s) to an Election Petition can file a CROSS PETITION in view of the fact that the Electoral Act, 2022 nor the First Schedule make provision for a Cross Petition?

-???????? What is a Cross Petition within the meaning of the Electoral Act, 2022 or the First Schedule to the Electoral Act, 2022?

-???????? Whether or not a Respondent(s) to an Election Petition can by his REPLY to the Petition rely on paragraph 15 of the First Schedule to the Electoral Act, 2022 to object to the votes of the Petitioner(s) and further ask the Tribunal to add votes to him (which would have the resemblance of a Cross Petition)?

-???????? Whether or not the intendment of Paragraph 15 of the First Schedule to the Electoral Act, 2022 was to the effect that a Respondent may object to the votes credited to the Petitioner(s) in other areas of the state or local government nor discussed or made an issue in the Petition without filing a cross petition or counter-petition?

-???????? Bearing in mind that even without filing a cross petition or counter petition, Paragraph 15 on its own amounts to a counter-claim, why was the attitude of the Tribunal, Court of Appeal and the Supreme Court not to treat it a counter-claim which is a separate action on its own not dependent on the Petition itself?

The last question is one I believe should be really considered. The nature of counter-claims is that they constitute a separate claim from the main claim forming the subject of the litigation. A counter-claim is by nature, a cross action raised in the Defendant’s statement of defence against the plaintiff[1] and in this context the Respondent against the Petitioner. Given that the very nature of paragraph 15 of the First Schedule assumes the resemblance of a counter-claim, were the courts right to not have wholistically interpreted it as such and determined it as a separate action? Would it be possible for a statute to refer to a concept or principle as something else despite that it bears all the similarities of that concept?

Assuming the above postulations are correct, then the saying that “if it looks like a duck, it probably is” would be found to have an exception. Perhaps, the intendment of the Electoral Act, 2022 through the paragraph was to avoid the almost unending trial that would ensue as a result of a possibility or availability of a cross petition. The period of time within which a petition would naturally be determined would have to be reviewed for being inadequate amongst other issues that may arise.

Nevertheless, the perceived legal implication of this particular interpretation is that a room would be created for a Respondent in an election petition to present before the Tribunal his or her complaints against the conduct of the election particularly as they relate to the votes credited to the Petitioners. The only condition required is that the Petitioner(s) alleges as a sole or part of his grounds of the Petition that the Respondent did not score the majority of the votes at the polls. The objection to votes pursuant to Paragraph 15 could border on grounds such as non-compliance with the provisions of the Electoral Act, 2022 inclusive of over-voting, child-voting etc.

Furthermore, a provision like this will have the effect of setting up a very herculean task for a Petitioner in proving his Petition moreso the current electoral jurisprudential climate makes it difficult and tedious for a Petitioner to even prove his case. Whilst he is ordinarily tasked with the onus of proving the existence of the facts which form his Petition, he would also bear the onus of proving that the regularity of votes credited to him and in other areas not contended with in the Petition within the same time provided by relevant statutes.

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RECOMMENDATIONS

The current interpretation of Paragraph 15 of the First Schedule to the Electoral Act, 2022 is one which within the same answers provided by our hallowed courts in the cases of ADAMU MUHAMMED & ANOR V INEC & ORS (supra) and EMMANUEL DAVID OMBUGADU & ANOR V INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 2 ORS (Unreported) presents a myriad of other questions which needs to be resolved before it defeats the intendment of the lawmakers assuming that was not their intention in the first place. As such, it is recommended that our lawmakers look into this particular provision in a bid to limit its scope and applicability as against the next election cycle. Alternatively, given that there are still some Election Tribunals sitting and some elections yet to hold, the Apex court sitting in its appellate jurisdiction, if and when faced with the interpretation of this paragraph may examine concretely the provisions of Paragraph 15 of the First Schedule of the Electoral Act, 2022.?

[1] D. I. Efevwerhan, “Principles of Civil Procedure in Nigeria” (3rd Edition, 2020)