MR. VALENTINE CHRIS OGAR ENEJI & ANOR V. AJOR IDAGU AGAJI & ORS (2012)

MR. VALENTINE CHRIS OGAR ENEJI & ANOR V. AJOR IDAGU AGAJI & ORS

(2012)LCN/5614(CA)

In The Court of Appeal of Nigeria

On Saturday, the 7th day of January, 2012

CA/C/NAEA/305/2011

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

1. MR. VALENTINE CHRIS OGAR ENEJI
2. ACTION CONGRESS OF NIGERIAAppellant(s)

AND

1. AJOR IDAGU AGAJI
2. THE RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE PEOPLES DEMOCRATIC PARTY (PDP)Respondent(s)

RATIO

WHETHER OR NOT WHAT IS ADMITTED NEEDS FURTHER PROOF

What is admitted needs no further proof. A party does not set out to prove that which is admitted. See Olale V. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 102. Judgment can, in such a circumstance, be had on the pleadings. See Akintola V. Solano (1986) 2 NWLR (pt.24) 598/620. PER TUR, J.C.A.

WHETHER OR NOT SPONSORSHIP OF AN ELECTORAL CANDIDATE TO CONTEST AN ELECTION IS A DOMESTIC AFFAIR OF A POLITICAL PARTY

Moreover, sponsorship of a candidate to contest an election is the domestic affair of a political party to which the candidate belongs or is a member. See Balonwu V. Chinyelu (1991) 4 NWLR (Pt.183) 30; Onuoha V. Okafor (1983) 2 SCNLR 244 and Adeogun V. Fasogbon (2011) 2 & 3 MJSC (Pt.2) 103 at 134. Political questions of this nature are best handled as the internal affairs of the political party concerned. Mr. Valentine Chris Ogar Eneji of the Action Congress of Nigeria not being a member or an aspirant of the Peoples Democratic Party has no locus standi to challenge the sponsorship of Mr. Ajor Idagu Agaji by the party.

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Irked by the declaration of Ajor Idagu Agaji as the duly elected member of the Bekwara state constituency in the Cross River State House of Assembly, by the Independent National Electoral commission, Mr. Chris Valentine Ogar Eneji and Action Congress of Nigeria presented a joint petition to the Election Tribunal holden at Calabar, Cross River State on 17-05-2011. The petition was anchored on paragraphs 34-36 on the following grounds:
“34. The election was invalid by reason of noncompliance with the provisions of Electoral Act, 2010 as Amended.
35. The 1st Respondent was at the time of the election not qualified to contest the election.
36. The petitioners scored the highest number of lawful votes cast but the 1st Respondent was declared winner.”
The petitioners prayed as follows:
“(a) A declaration that the election into the House of Assembly for Bekwara State Constituency held on 26th April, 2011 was invalid by reason of non-compliance with the provisions of Electoral Act, 2011 as Amended.
(b) A declaration that the election into the House of Assembly for Bekwara State constituency held on 26th April, is null and void.
(c) An order that a fresh election be conducted into Bekwara State Constituency.
(d) A declaration that the 1st Respondent was not qualified to contest election into the House of Assembly for Bekwara State Constituency.”
In the alternative the petitioners prayed as follows:
“(a) A declaration that the petitioner scored the highest number of valid votes cast in election held on 26th April, 2011 in Bekwara State Constituency.
(b) A declaration that the petitioner was validly elected in election held on 26th April, 2011 in Bekwara State Constituency.
(c) An order directing the 3rd Respondent to issue a certificate of return to the petitioner for the election held on 9th April, 2011 in Bekwara State Constituency.”
The Respondents filed Replies denying the allegations. The matter went to trial. On 12th, day of November, 2011 the Tribunal dismissed the petition for lack of merit. The petitioners filed a joint Notice and Grounds of Appeal on 02-12-2011 containing two grounds of appeal from which the learned Counsel to the appellant distilled the following issues for determination in the Appellant’s Joint Brief of Argument filed on 19-12-2011 to wit:
“(a) Whether an election Tribunal has the jurisdiction to determine the Constitutional validity of the sponsorship of a candidate in an election by a political Party.
(b) Whether the written statement on oath of a witness in an election petition is a document capable of being tendered in evidence as an exhibit at the trial of the petition.
(c) Issue No.3.”

The learned Counsel to the appellants argued issue one (paragraph 3.1 to 3.1.8 at pages 2-12); issue two (paragraphs 3.2 to 3.2.4 at pages 12-16) and issue three (paragraph 3.3 to 3.3.3 pages 16-19) in the Appellants’ Brief of Argument. Thus it can be seen that there are three issues for determination arising from two grounds of appeal. The law is settled that issues for determination arising from grounds of appeal may cover more than one ground of appeal. But there cannot be more issues than the grounds of appeal. See Saude Abdullahi (1989) 7 SCNJ 216; Eze V. FRN (1987) 1 NWLR (Pt.51) 506 at 521-522; Okpala V. Ibeme (1939) 3 SCNJ 152 at 159; Osinupebi V. Saidu (1985) 7 SC 104 at 110-111. Also argument shall be based on the formulated issues not the grounds of appeal. See Kim V. The State (1991) 4 SCNJ 81 at 108-109; Udeze V. Chidebe (1990) 1 NWLR (Pt.125) 141. Three issues cannot arise from two grounds of appeal. See Kalu V. Odili (1992) 6 SCNJ (pt.1) 76 at 93 where it was held that seven issues for determination could not arise from three grounds of appeal. For the above reason issue three in the brief of argument, not supported by any ground of appeal and objected to by learned Counsel to the Respondents, is hereby struck out. See also Bola Tinubu V. I.M.B. Securities Plc (2001) 16 NWLR (Pt.740) 670 at 691; Management Enterprises Ltd. V. Otusanya (1987) 2 NWLR (Pt.55) 179; Oniah V. Onyia (1939) 1 NWLR (Pt.99) 514; Adelaja V. Fanoiki (1990) 2 NWLR (Pt.131) 137. The 1st Respondent identified the following two issues for determination:
ISSUE 1:
Whether an Election Tribunal has the jurisdiction to determine the constitutional validity of the sponsorship of a candidate in an election by a political party.
ISSUE 2:
Whether the National and State Houses of Assembly Election Petition Tribunal sitting in Calabar, Cross River State, were not right in dismissing the petition of the Appellants for lack of proof.”
The learned Counsel to the 2nd-3rd Respondents formulated the following issues for determination in their Joint Brief of Argument filed on 22-12-2011:
“1. Whether or not the trial Tribunal was right in holding that the petitioners failed to prove that the election was not conducted with strict compliance to the provisions of the Electoral Act, 2010 (as amended) by not adducing evidence?
2. Whether or not the trial Tribunal was right in holding that paragraphs 28, 29, 30, 31 and 32 and grounds 2 of the petition are pre-election matters upon which the Tribunal lacks jurisdiction?”
The 4th Respondent identified the following issues for determination:
“01. Whether an Election Tribunal has the jurisdiction to determine the constitutional validity of the sponsorship of a candidate in an election by a Political Party;
02. Whether the Lower Tribunal was right in dismissing the petition for failure to adduce evidence in proof of their allegations of non-compliance with the provisions of the Electoral Act, 2010 (as amended).”
In my humble view, counsel formulating issues for determination by an appellate Court should take into consideration the pleaded and contested facts read together with the reasons and conclusions of the Court or the Tribunal as the case may be. This is because argument on appeal should be based on pleaded facts. See Balogun V. Obisanya & 1 Or (1956) 1 FSC 22 at 23; Idahosa V. Oronsaye (1959) 4 FSC 166 at 170-171 and Atanda V. Ajani (1989) 2 NSCC 511 at 526. Paragraphs 1-7 of the Joint Petition presented before the Tribunal reads as follows:
“1. The 1st Petitioner was a candidate under the platform of the 2nd petitioner in the election into the House of Assembly for Bekwara State Constituency held on the 26th day of April, 2011.
2. The 2nd Petitioner is the party that sponsored the 1st petitioner for the House of Assembly for Bekwara State Constituency held on the 26th day of April, 2011.
3. The 1st Respondent was the candidate under the platform of the Peoples Democratic Party in the election into the House of Assembly for Bekwara State Constituency held on the 26th day of April, 2011.
4. The 2nd Respondent is the Resident Electoral Commissioner of the Independent National Electoral Commission in Cross River State of Nigeria.
5. The 3rd Respondent is the body that conducted the election into the House of Assembly for Bekwara State Constituency held on the 26th day of April, 2011.
6. The 4th Respondent is the party that purportedly sponsored the 1st Respondent for the election into the House of Assembly for Bekwara State Constituency held on the 26th day of April, 2011.
7. The election into the House of Assembly for Bekwara State constituency held on the 26th day of April, 2011.”

From the Joint petition presented before the Tribunal on 17-05-2011, it no longer lies within the mouth of the appellants to argue that Ajor Idagu Agaji was not a candidate nor was he sponsored by the Peoples Democratic Party to contest the election held on 26th April, 2011.The averment in paragraph 4 of the Reply of the Peoples Democratic Party filed on 24-06-2011 reads thus:
“4. In further answer to paragraphs 6, 8, and 9 of the petition, the 4th Respondent states that the 1st Respondent was duly sponsored by the 4th Respondent and that the elections duly took place in all parts of Bekwara State Constituency and the scores announced by the 3rd Respondent were derived from the total lawful votes cast and collated in the election.”
What is admitted needs no further proof. A party does not set out to prove that which is admitted. See Olale V. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 102. Judgment can, in such a circumstance, be had on the pleadings. See Akintola V. Solano (1986) 2 NWLR (pt.24) 598/620.

This is made clear in Section 87(9), (10) and (11) of the Electoral Act No.6 of 2010 as amended which reads thus:
“9. Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue
10. Notwithstanding the provisions of the Act or rules of a political party, any aspirant who complains that any of the provisions of this act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court of a State, for redress.
11. Nothing in this section shall empower the court to stop the holding of primaries or general election under this Act pending the determination of the suit.”
A composite reading of the above provisions will show that the holding of primaries for the selection or nomination of candidates to contest elections is to be done by political parties. If any aspirant in that political parry is aggrieved with the selection or nomination of any particular candidate or the holding or conducts of the primaries the forum to ventilate such grievances shall be the Federal High Court of a state before but not after the elections have been held. The institution of such a suit is not to empower the Federal High court to stop the primaries or the election under the Act pending the determination of the suit. I have carefully considered the entire provisions of section 87(1)-(11) of the Electoral Act No.6 of 2010 as amended. Nowhere is the word “tribunal”, ”Election Tribunal” or ”State High Court” mentioned therein as being conferred with jurisdiction to determine the grievances of an aspirant in any political party concerning the selection, nomination nor the holding of primary or election by that party. That is the exclusive pressure of the Federal High Court.
The express mention of the phrase “…Federal High court of a state, for redress” automatically excludes State High Courts or Election Tribunals of whatever nomenclature. See Udoh V. Orthopaedic Hospitals (1993) 7 SCNJ (pt.2) 436 at 444; Attorney-General of Bendel State V. Aideyan (1989) 4 NWLR (Pt.118) 644 and Military Governor of Ondo State V. Adewunmi (1988) 3 NWLR (pt.8) 280.
The Tribunal held at 506 lines 9-15 of the printed record as follows:
“On issue two the jurisdiction of Election Tribunal is conferred by Section 285 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). A very careful perusal of the provision clearly shows that the election Tribunal do not have power to go into pre-election matters. The appropriate court to ventilate grievances over any pre-election matter is the regular Court.”
The appellants have not shown that the reasoning and conclusion of the Tribunal cannot be supported by the evidence on record. See Onowan V. Iserhein (1976) 1 NMLR 263; Folorunsho V. Adeyemi (1975) 1 NMLR 128 at 132. The nature of the complaint will determine when an issue may be held to fall within the exclusive jurisdiction of the Federal High Court as a pre-election matter or an Election Tribunal. Certainly this is not one of such issues that should be determined by an Election Tribunal. I resolve this issue against the appellants.
ISSUE TWO:
Paragraphs 9, 10, and 11 of the Joint petition pleaded as follows:
“9. The petitioner scored the highest number of lawful votes cost in parts of the constituency, that is Bekwara State constituency where elections were lawfully conducted by the 3rd Respondent.
10. The result of the election was declared by the 3rd Respondent on 10th April, 2011.
11. The Action congress (sic) Nigeria and the petitioner appointed agents, collation officers and coordinators to monitor the elections in all the polling booths in Bekwara State Constituency for the election held on the 26th day of April, 2011.”
The petition clearly shows that there were many polling units in Bekwara State Constituency. This is exemplied in paragraphs 19-26 of the Joint petition as follows:
“19. The petitioner had to personally call the presiding officers of some of the polling units before they belatedly allowed the agents of the petitioner to observe the elections by which time; the respondents had successfully manipulated the entire process to tie benefit of the 1st Respondent.
20. Owing to the fact that the agents of the petitioner were prevented from observing the entire process, votes of the petitioner were counted for the 1st Respondent whilst votes were sexed-up for the 1st Respondent.
21. Furthermore, the 1st and 4th Respondents exploited the absence of the agent of the petitioner to thumbprint and stuff ballot papers into the boxes for the benefit of the 1st Respondent.
22. Consequently, prospective voters at most polling units were intimidated and driven away from the polling units with the effect that ballot papers were not deposited in the ballot boxes in the open view of the public.
23. The ballot boxes were on account of the foregoing stuffed with multiple, thumb-printed ballot papers in favour of the 1st and 4th Respondents.
24. In addition votes were recorded for voters that were not personally in attendance at the polling units and in most cases, at the polling units other than the ones to which the voters were allotted with the effect that the ballot boxes were stuffed with finger impression of voters whose biometric data do not relate to the polling unit in respect of which the ballots were cast to the benefit of the 1st Respondent.
25. Opposition voters were indirectly kept away from polling units through threats of force, violence and death in consequence by the 1st and 4th Respondents of which they were disenfranchised by the said acts of threat and intimidation.
26. There was clear absence of accreditation of voters in most of the polling units and regulated procedure for the conduct of the was as a result violently breached to the advantage of the 1st and 4th Respondents at whose instance the ballots were massively thumb printed in clear disregard of the number of registered voters and accredited voters on which account where was no commensurate correlation between registered voters, accredited voters and eventual record of the declared result.”
Yet at the trial the petitioners called only one witness to prove non-compliance with the provisions of the Electoral Act, 2010 as amended to prove their complaints in the whole of Bekwara State Constituency. Where were the petitioners’ polling agents or field officers in respect of these polling units in the constituency? When the deposition of the lone witness was rightly or wrongly rejected, there was no other evidence to support the averments in the petition. The appellants/petitioners have not shown before this Court that had the deposition of that lone witness being admitted by the Tribunal it may reasonably be held that the decision would have tilted in their favour. See Section 251(2) of the Evidence Act, 2011; Ajayi V. Fisher (1956) 1 FSC 90; S.P.D.C. (Nig.) Ltd. v. Olanrewaju (2002) 16 NWLR (pt.792) 55. I do not see how the petitioners, relying on the deposition of alone witness, could prove non-compliance with the provisions of the Electoral Act, 2010 as amended in all the numerous polling units in Bekwara State constituency. Accordingly, I resolve this issue against the appellants. For all these reasons I dismiss this appeal. I make no order as to costs.

MOHAMMED LAWAL GARBA, J.C.A.: On the 07/01/2012, this court had dismissed this appeal summarily pursuant to the provisions of Section 285 (8) of the 1999 Constitution (as altered) and reserved the reasons for the decision for a later date.
I have before today, read the lead reasons for the decision written by my learned brother Joseph Tine Tur, JCA, which have comprehensively dealt with the two (2) issues that called for determination in the appeal. The views expressed and the reasons set out for the dismissal of the appeal are the same with mine and I agree completely with him.
I do not wish to say more than that I adopt the said reasons in the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother JOSEPH TINE TUR, JCA. I agree with the reasoning and final conclusions in the lead judgment. This appeal is dismissed. I abide by all the consequential orders including that as to costs.

Appearances

W. BallantyneFor Appellant

AND

Julius Idiege-For 1st Respondent
B. Oloyo- For 2nd-3rd Rgspondent
U.A. Adie- For the 4tn RespondentFor Respondent