PEOPLES DEMOCRATIC PARTY (PDP) & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
(2012)LCN/5189(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 29th day of February, 2012
CA/I/EPT/FH/11/2011
RATIO
THE IMPORTANCE OF CROSS EXAMINATION IN THE DETERMINATION OF A PARTY’S CASE.
Perhaps the answer to the first point raised is to what use cross-examination can be put in the determination of a party’s case. The law is that facts can be elicited either through examination-in-chief or cross-examination provided such facts are relevant. A number of authorities to that point have already been cited and relied upon. See GAGE V. PAYE (2003) 8 NWLR (PART 823) 583 at 603-604; DAGGASH V. BULAMA (2004) 14 NWLR (PART 892) 144; OFORLETTE V. STATE (2000) 7 SCNJ 162 at 169. The issue now is whether the 1st Respondent having not called evidence of its own did not obtain through cross-examination of the Appellants’ witnesses enough material to strengthen its position in demolition of the Appellants’ case. Secondly, were the allegations of the Appellants admitted by the 2nd & 3rd Respondents? In BUHARI V. INEQ & ORS (2008) 19 NWLR (PART 1120) 246, it was held that an admission by one set of Respondents in a case cannot bind another set of Respondents, See also ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (PART 1120) 1 at 171. PER. STANLEY SHENKO ALAGOA, OFR J.C.A
ELECTORAL PROCESSES: WHETHER AN IRREGULARITIES AT AN ELECTION WHICH ARE NEITHER THE ACT OF A CANDIDATE NOR LINKED TO HIM CAN AFFECT HIS ELECTION
It is the law that where alleged malpractices in an election cannot be linked to a successful party, his election cannot be nullified. The often cited case which has now gained notoriety is the case of BUHARI V. OBASANJO (2005) ALL FWLR (PART 273) 1 at 158 where the Supreme Court held as follows, “Irregularities at an election which are neither the act of a candidate nor linked to him cannot affect his election. Therefore an elected candidate cannot have his election nullified on the ground of corrupt practices or any other irregularity committed in the process of the election unless it can be proved that the candidate expressly authorised the illegality.” STANLEY SHENKO ALAGOA, OFR J.C.A
THE POSITION OF THE LAW ON DISENFRANCHISEMENT
Disenfranchisement is provable by the tendering of voter’s registers, voters cards and of course the verbal or oral testimony of those who claim to have been disenfranchised. CHIME V. EZEA (2009) 2 NWLR (PART 1125) 263 at 357 paras E-F referred to in Respondents’ Brief is most apt – “Everyone deprived of voting must come and show his voters card, express his constitutional right to pick a candidate of his choice. The comprehensive voters register must be tendered, authentic evidence of what happened at each polling booth must be given and this will not admit of any generalisation of evidence for Local Government or Constituency as it will not serve the purpose.” See also AUDU V. INEC & ORS (2010) 13 NWLR (PART 1212) 456 at 523. As earlier noted a number of documents were tendered through the 2nd Appellant. But of what use are these documents if just dumped without resort to them in proving one’s case or in establishing or proving allegations of electoral practices and acts of non-compliance with the provisions of the Electoral Act 2010 as amended? Is it the duty of the tribunal to take up, analyse and sift out those documents and come up with conclusions of its own? That certainty is not the duty of any tribunal or court called upon to dispassionately decided issues between contending parties. It is the duty of a party intending to rely on a document in proof of his case to do so by specifically relating such document to that aspect of his case for which the document is being produced in court. The decision in TERAB V. LAWAN (1992) 3 NWLR (PART 231) 569 is often cited more out of misunderstanding that once a document is before a court, it is the duty of the court to scrutinise it. A thorough reading of TEMB’s case shows the level of misunderstanding to which that authority has been subjected because that the onus is on the court to scrutinise a document it has admitted in evidence is certainly not the purport of TEMB’s case (supra). The onus still lies on the party who has tendered those documents to use them and prove his case or as in election cases to use them to establish any electoral malpractices of whatever nature. A court or tribunal that takes upon itself the duty of doing what the tenderer of such documents ought to have done will only be lending itself to accusations of descending into the arena. See JALINGO V. NYAME (1992) 3 NWLR (PART 231) 538; FAWEHINMI V. AKILU (1987) 4 NWLR (PART 67) 797. In UGOCHUKWU V. CO-OPERATIVE BANK (1996) 7 SCNJ 22, such an action by a Judge was referred to as “extra-trial arithmetic which amounts to failure of Justice as only evidence that is tested under cross-examination may give rise to such conclusion.” PER. STANLEY SHENKO ALAGOA, OFR J.C.A
Justice
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
OFR Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. HON. MOHAMMED T. ODUNOWOAppellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. MR. SEFIU KAKA
3. ACTION CONGRESS OF NIGERIA (ACN)Respondent(s)
STANLEY SHENKO ALAGOA, OFR J.C.A (Delivering the Leading Judgment): This appeal was dismissed on the 6th of December, 2011 and reasons for dismissing the appeal were reserved until today, pursuant to S. 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), I now give my reasons.
This is an appeal against the judgment of the National and State Assembly Election Petition Tribunal sitting at Abeokuta, Ogun State delivered on the 10th October, 2011. The Petitioners (now Appellants) were respectively a Political Party – the Peoples Democratic Party (PDP) and its candidate Hon. Mohammed T. Odunowo who participated in the election for the Ogun East Senatorial District of Ogun State seat in the Senate of the Federal Republic of Nigeria held on the 9th April, 2011. At the end of the election, the 1st Respondent, the Independent National Electoral Commission (INEC) declared the 2nd Respondent Mr. Sefiu Saka who was sponsored by the 3rd Respondent, the Action Congress of Nigeria as the winner of the election.
Aggrieved the 2nd Petitioner (2nd Appellant) who came second in the said election challenged the results of the election and the return of the 2nd Respondent before the National and State Assembly Election Petition Tribunal sitting at Abeokuta, Ogun State by petition No. EPT/OG/FH/03/2011 filed on the 29th April, 2011 seeking the following reliefs –
1. A declaration that the 2nd petitioner polled the highest number of lawful votes cast at the said election to the senate for the Ogun East senatorial District held on the 9th May, 2011 and ought to be returned as duly elected.
2. An order directing the 1st Respondent to deliver within 48 hours of the decision of the Tribunal a certificate to the 2nd Petitioner in evidence of his return as the validly elected senator representing the Ogun East senatorial District of Ogun State in the senate of the Federal Republic of Nigeria.
IN THE ALTERNATIVE to prayers 1 and 2 above the Petitioners prayed for the following reliefs:
1. An order nullifying/invalidating/declaring as invalid, null and void the entire election to the Senate for the Ogun East Senatorial District held on the 9th April 2011.
2. An order directing the 1st Respondent to conduct within 21 days of the decision of this Tribunal, a new election to the Senate for the Ogun East Senatorial District in Ogun State.
3. An order barring the 4th & 5th Respondents from participating or fielding candidates at the new election.
The Appellants’ grounds for the petition are:-
1. The 2nd Respondent did not win a majority of the lawful votes cast at the said election and was therefore not duly elected or returned.
2. Non-compliance with the provisions of the Electoral Act 2010 in that the 1st Respondent allowed the participation of the 4th Respondent in the said election in violation of the provision of the Electoral Act in order to split the votes which would ordinarily have been cast for the 2nd petitioner.
After the pretrial conference the petition went on to be heard and on the 10th October, 2011, the Tribunal delivered judgment dismissing the petition. Aggrieved the Petitioners (now Appellants) appealed against the judgment by a Notice and grounds of appeal filed on the 17th October 2011. By leave of Court, Appellants filed an Amended Notice of Appeal dated 28th November, 2011 on the same day. The said Amended Notice of Appeal consists of eight grounds (A-H) and is reproduced below shorn of particulars-
GROUNDS OF THE APPEAL
A. MISDIRECTION ON THE FACTS
The Honourable Tribunal misdirected itself on the facts when it held that the Petitioners/Appellants’ allegation of disenfranchisement of voters in the election for Ogun East senatorial district held on the 26th of April, 2011 was not established.
B. ERROR IN LAW
The Honourable Tribunal erred in law when it held that the allegation of non-recording of the number of voters on the queue when voting commenced ought to have been pleaded in the petition.
C. ERROR IN LAW
The Honourable Tribunal erred in law when it held that the Petitioners/Appellants failed to plead and lead evidence in respect of two sets of results.
D. MISDIRECTION ON THE FACTS
The Honourable Tribunal misdirected itself on the facts when it held that the Petitioners/Appellants failed to prove the allegations of malpractice beyond reasonable doubt.
E. ERROR IN LAW
The Honourable Tribunal erred in law when it held that the allegation of noncompliance with the provisions of the Electoral Act 2010 made against the 1st Respondent was not established.
F. ERROR IN LAW
The Honourable Tribunal erred in law when it held that disqualification of a candidate that participated but did not win an election is not a valid ground for challenging the return of a candidate in an election.
G. MISDIRECTION ON THE FACTS
The Tribunal misdirected itself on the facts when it held that the Petitioners failed to prove or establish how the non-compliance substantially affected the result of the election.
H. ERROR IN LAW
The Honourable Tribunal erred in law when it held that the 2nd respondent won a majority of lawful votes cast at the election and was therefore duly returned.
An order for leave to the Appellants to file and argue additional grounds of appeal was also granted by this court on the 28th November, 2011. An Amended Appellants’ Brief of Argument dated the 28th November, 2011 and filed same day as well as Appellants’ Reply Brief of Argument dated 1st December, 2011 and filed same day were both adopted and relied upon by Appellants, Counsel R. A. Oluyede on the 2nd December, 2011 when this matter came up for hearing. In paragraphs 3.1.1.-3.1.5 of the unpagenated Appellants’ Amended Brief of Argument, the following Issues were distilled for the determination of this Court –
3.1.1. Whether the allegations of malpractice involving disenfranchisement and non-recording of number of votes on the queue at the commencement of voting have not been established by the Petitioners/Appellants.
3.1.2 Whether the allegation of non-recording of number of voters on the queue at the commencement of voting ought to have been pleaded in the Petition.
3.1.3 Whether the allegations of malpractice were not proved beyond reasonable doubt.
3.1.4 Whether the Petitioners have not established that the non-compliance with the provisions of the Electoral Act 2010 (as amended) by the 1st Respondent through the unlawful inclusion of Mr. Abiodun Odusanya in the election after the expiration of the period allowed for the substitution of candidates substantially affected the result of the election.
3.1.5 Whether the 2nd Respondent won a majority of lawful votes cast at the election.
Mr. Uche Obi counsel for the 1st Respondent adopted and relied on the 1st Respondent’s Brief of Argument dated 1st December, 2011, filed on the 2nd December, 2011 and deemed filed on the 2nd December, 2011 wherein the following sole issue was formulated for the determination of this Court –
“Whether the 1st Respondent who did not call any witness in evidence but who elicited evidence from other witnesses in the case under cross-examination can be said to have admitted the evidence of the Appellants.”
Razaq Okesiji adopted and relied on the Amended 2nd Respondent’s Brief of Argument dated 30th November, 2011 and filed same day. The following issues were distilled in the said Amended Brief of Argument –
1. Whether the allegation of malpractice involving disenfranchisement and non-recording of number of voters on the queue at the commencement of voting have not been established.
2. Whether the allegation of non-recording of the number of voters on the queue at the commencement of voting ought to have been pleaded in the petition.
3. Whether the allegations of malpractice were not proved beyond reasonable doubt.
4. Whether the Petitioners have not established that the non-compliance with the provisions of the Electoral Act 2010 (as amended) by the 1st Respondent through the unlawful inclusion of Abiodun Odusanya in the election after the expiration of the period allowed for substitution of candidates substantially affected the result of the election.
5. Whether the 2nd Respondent won a majority of lawful votes cast at the election.
George Oyeniyi, Counsel for the 3rd Respondent adopted and relied on the 3rd Respondent’s Amended Brief of Argument dated the 29th November, 2011 and filed on the 30th November, 2011 wherein a sole issue was formulated for determination by this Court viz-
Whether the Petitioner has proved his case as required by law to sustain the relief claimed.
I think I should state at the outset that the Issues formulated by the Appellants are somewhat proliferated. In a number of decided cases this practice of Counsel has been frowned upon by Appellate Courts. See for example OMEGA BANK NIG. PLC. V. O.B.C. LTD. (2005) 8 NWLR (PART 928) 547 at 572 where the Supreme Court per Niki Tobi (JSC) stated as follows,
“This Court has on several occasions condemned the proliferation of issues in briefs of arguments. It is not the number of cases for determination formulated that determines the quality of a brief or that determines the success of an appeal.”
I think that the sole issue critical to the proper determination of this appeal is whether the Appellants have proved their case as required by law to sustain the reliefs being claimed by them.
The Appellants’ petition at the tribunal below was based essentially on two grounds viz –
1. The 2nd Respondent did not win a majority of lawful votes cast at the election and was therefore not duly elected or returned.
2. Alleged non-compliance with the provisions of the Electoral Act 2010 as amended.
Heavy weather was made by the Appellants in their Brief of Argument suggesting that –
(1) Allegations of non-compliance and malpractices were admitted by the 1st Respondent who did not call any witness in evidence and the allegations having been so admitted need no further Proof; and
(2) As a follow up to (1) above, the Appellants are entitled to judgment in their favour.
Perhaps the answer to the first point raised is to what use cross-examination can be put in the determination of a party’s case. The law is that facts can be elicited either through examination-in-chief or cross-examination provided such facts are relevant. A number of authorities to that point have already been cited and relied upon. See GAGE V. PAYE (2003) 8 NWLR (PART 823) 583 at 603-604; DAGGASH V. BULAMA (2004) 14 NWLR (PART 892) 144; OFORLETTE V. STATE (2000) 7 SCNJ 162 at 169. The issue now is whether the 1st Respondent having not called evidence of its own did not obtain through cross-examination of the Appellants’ witnesses enough material to strengthen its position in demolition of the Appellants’ case.
Secondly, were the allegations of the Appellants admitted by the 2nd & 3rd Respondents? In BUHARI V. INEQ & ORS (2008) 19 NWLR (PART 1120) 246, it was held that an admission by one set of Respondents in a case cannot bind another set of Respondents, See also ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (PART 1120) 1 at 171. It is therefore correct to say and as submitted by the 1st Respondent that the 2nd and 3rd Respondents having denied the allegations of the Appellants, no purported admission on the part of the 1st Respondent can affect the 2nd & 3rd Respondents.
The other point to be noted is the declaratory nature of the reliefs sought by the Appellants in the petition. Here again it is correct to say that declaratory reliefs cannot be granted in default of defence. Appellants are calling for the nullification of the election of the 2nd Respondent on alleged malpractices and non-compliance with the provisions of the Electoral Act 2010 as amended. Are the alleged malpractices linkable to the 2nd Respondent? It is the law that where alleged malpractices in an election cannot be linked to a successful party, his election cannot be nullified. The often cited case which has now gained notoriety is the case of BUHARI V. OBASANJO (2005) ALL FWLR (PART 273) 1 at 158 where the Supreme Court held as follows,
“Irregularities at an election which are neither the act of a candidate nor linked to him cannot affect his election. Therefore an elected candidate cannot have his election nullified on the ground of corrupt practices or any other irregularity committed in the process of the election unless it can be proved that the candidate expressly authorised the illegality.”
Going through the entire gamut of the evidence adduced at the tribunal can it be said or has it been proved that the 2nd Respondent EXPRESSLY authorised the alleged malpractices or non-compliance? This same question brings me to the issue of an allegation of crime in civil matters including elections. It has since been a notorious principle of law that such allegations are provable on the standard of proof in criminal proceedings which is proof beyond reasonable doubt. The principle is very elementary and there are innumerable decided cases on this subject matter and I do not think I need overflog the point. With particular emphasis on election petitions, the point was succinctly put by the Supreme Court of Nigeria per Niki Tobi JSC in ABUBAKAR V. YAR’ADUA (supra) at page 171 thus,
“.. the law I know is that where a crime is alleged in an election petition the Petitioner must prove it beyond reasonable doubt.”
How well have the Appellants whose duty it is to discharge that onerous burden succeeded in doing same? There is no gainsaying the fact that the Appellants have failed to discharge that burden, what with the demolition of the Appellants, case through cross-examination. I have read through pages 534- 546 of the Record of Appeal wherein the 2nd Appellant was examined in chief and then cross-examined and it is incumbent on me to reproduce bits and pieces of relevant aspects of the examination-in-chief and cross-examination that are germane to this appeal. The 2nd Appellant gave evidence as PW1. He is a consultant in aviation and also a full time politician, He said he made a witness state (sic) in this matter on 29th September 2011 which he recognised there in court and which he intended to adopt as his evidence. He said that with respect to disenfranchisement, “I have documents I relied upon as my evidence” – page 535 of the Record. Led in examination-in-chief by Mr. Oluyede, this witness tendered quite a compendium of documents the tendering of which were largely not objected to by other counsel in the matter. These are in the main results from polling units. Under cross-examination this witness maintained that his statement on oath dated 29th April, 2011 was within his personal knowledge – Page 543 of the Records. Still under cross-examination at page 543 of the Records the 2nd Appellant said as follows,
“All the allegations of malpractices (sic) disenfranchisements are reports to me by my agents. The PDP had polling agents in all the units who signed the results sheets in all the polling units. I was ahead of the 2nd Respondent with no votes in five of the nine local Governments. I cannot remember the local Government I won the election. There were INEC presiding officers at every polling unit who signed all the results sheets.”
Page 544-545 –
“I see exhibit P29 (b) and (d) did not record results for any of the candidates – The supporters that were disenfranchised are still alive but unhappy that they could not vote. The voters who are disenfranchised also informed me of what happened at the polling units. I did not state the number of votes disenfranchised in my statement on oath, I was not specific. I did not state any polling unit as we are still investigating.”
(Underlining mine for emphasis).
It will be seen quite easily from evidence elicited from the 2nd Appellant during cross-examination as enunciated above that much of his evidence is based on hearsay which is inadmissible in law. This is a case in which the Appellants are challenging figures and scores of candidates at an election and the 2nd Appellant is relying on what he was told by his agents. According to him all the allegations of malpractices and disenfranchisement are what he was told by polling agents who signed the result sheets. The information was not based on what he saw or knew firsthand. Even those who were disenfranchised and unhappy at that, informed him of what happened at the polling units. Such evidence is clearly inadmissible. In BUHARI V. OBASANJO (supra) at page 111-112 the Supreme Court in reference to this kind of situation stated that if such evidence (hearsay evidence) was admitted unwittingly that evidence should not be acted upon by the trial court but if the court did, an appellate court can set aside the judgment. The apex court also stated that,
“The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who were on the field ….”
Why were the polling agents who were on the field not called as material witnesses which indeed they were, to give evidence of these alleged electoral malpractices is indeed a matter for conjecture and must be taken as fatal to the Appellants’ case. See also BUHARI V. INEC (supra) at page 568. And what about those that the 2nd Appellant said were disenfranchised? Was it enough for the allegation of disenfranchisement to have come from the mouth of the 2nd Appellant? Why were the persons so disenfranchised not called upon to give evidence?
Disenfranchisement is provable by the tendering of voter’s registers, voters cards and of course the verbal or oral testimony of those who claim to have been disenfranchised. CHIME V. EZEA (2009) 2 NWLR (PART 1125) 263 at 357 paras E-F referred to in Respondents’ Brief is most apt –
“Everyone deprived of voting must come and show his voters card, express his constitutional right to pick a candidate of his choice. The comprehensive voters register must be tendered, authentic evidence of what happened at each polling booth must be given and this will not admit of any generalisation of evidence for Local Government or Constituency as it will not serve the purpose.”
See also AUDU V. INEC & ORS (2010) 13 NWLR (PART 1212) 456 at 523.
As earlier noted a number of documents were tendered through the 2nd Appellant. But of what use are these documents if just dumped without resort to them in proving one’s case or in establishing or proving allegations of electoral practices and acts of non-compliance with the provisions of the Electoral Act 2010 as amended? Is it the duty of the tribunal to take up, analyse and sift out those documents and come up with conclusions of its own? That certainty is not the duty of any tribunal or court called upon to dispassionately decided issues between contending parties. It is the duty of a party intending to rely on a document in proof of his case to do so by specifically relating such document to that aspect of his case for which the document is being produced in court. The decision in TERAB V. LAWAN (1992) 3 NWLR (PART 231) 569 is often cited more out of misunderstanding that once a document is before a court, it is the duty of the court to scrutinise it. A thorough reading of TEMB’s case shows the level of misunderstanding to which that authority has been subjected because that the onus is on the court to scrutinise a document it has admitted in evidence is certainly not the purport of TEMB’s case (supra). The onus still lies on the party who has tendered those documents to use them and prove his case or as in election cases to use them to establish any electoral malpractices of whatever nature. A court or tribunal that takes upon itself the duty of doing what the tenderer of such documents ought to have done will only be lending itself to accusations of descending into the arena. See JALINGO V. NYAME (1992) 3 NWLR (PART 231) 538; FAWEHINMI V. AKILU (1987) 4 NWLR (PART 67) 797. In UGOCHUKWU V. CO-OPERATIVE BANK (1996) 7 SCNJ 22, such an action by a Judge was referred to as “extra-trial arithmetic which amounts to failure of Justice as only evidence that is tested under cross-examination may give rise to such conclusion.” Thus without relating them to his case of what use and purport are the Exhibits tendered through the 2nd Appellant? It is unfortunate that the Appellants sought to tender and did tender a bundle of documents through the 2nd Appellant instead of presiding officers who were the makers of the documents and who could have been cross-examined on the documents more especially FORM EC8A which are polling units results. Is it not tragic that the only witness who testified for the Appellants gave evidence that amounts to hearsay? All said, the Tribunal in my view came to the right decision in holding that the Appellants’ allegations remained unproved based primarily on hearsay. The Issue for determination must therefore be and is hereby resolved in favour of the Respondents against the Appellants. The Appeal lacks merit and is hereby dismissed and the judgment of the National and State Legislative Houses Election Petition Tribunal sitting in Abeokuta, Ogun State delivered on the 10th October, 2011 in Petition No. EPT/OG/FH/03/2011 is hereby affirmed.
Parties are to bear their own costs.
ADZIRA GANA MSHELIA, J.C.A: I have read the judgment just delivered by my learned brother ALAGOA JCA. (OFR) I agree with his reasoning and conclusion that the appeal be dismissed. I abide by the order made as to costs.
MODUPE FASANMI, J.C.A.: I had the advantage of reading in advance the lead judgment by my learned brother S. S. ALAGOA, OFR J.C.A.
I am in full agreement that the appeal is devoid of merit. I therefore dismiss the appeal and abide by the consequential order made in the lead judgment.
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Appearances
R. A. Oluyede Esq.
T. O. Amao Esq.For Appellant
AND
Uche Obi Esq.
Joseph Kulugh Esq.
Gabriel Onojason Esq.
Razaq Okesiji Esq. with A. O. Kaka Esq.
George Oyeniyi Esq.For Respondent
