OLUWAROTIMI O. AKEREDOLU V. DR. RAHMAN OLUSEGUN MIMIKO & ORS
In The Supreme Court of Nigeria
On Thursday, the 29th day of August, 2013
SC.352/2013
RATIO
ACTION: NATURE OF A PRELIMINARY OBJECTION
A preliminary objection is a pre-emptive strike aimed at scuttling the entire appeal in limine. If the objection is raised against particular grounds of appeal as is the case before us, the intention is to prevent the Court from considering the issues raised from the grounds objected to in the determination of the appeal.
Because of its nature and intendment, a preliminary objection, whether it is directed at the entire appeal or some grounds of appeal, is determined before any further action is taken on the appeal, and I will now determine the objection on the argument offered by Counsel for the Parties. PER NWALI SYLVESTER NGWUTA, J.S.C.
APPEAL: PURPOSE OF THE FORMULATION OF ISSUES FOR DETERMINATION
The main purpose of the formulation of issues for determination is to enable the parties to narrow the issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See Sha v. Kwan (2000) 78 LRCN 1645 at 1664; Ogbu Inyinya & Ors v. Obi Okudo & Ors (1990) 4 NWLR (Pt.146) 551 at 568. PER NWALI SYLVESTER NGWUTA, J.S.C.
APPEAL: WHETHER AN INVALID GROUND OF APPEAL CAN GIVE RISE TO A VALID ISSUE FOR DETERMINATION
It therefore follows that an incompetent or invalid ground of appeal cannot give rise to a valid issue for determination of an appeal. PER NWALI SYLVESTER NGWUTA, J.S.C.
EVIDENCE: WHETHER THE COURT IS BOUND TO ACCEPT EVIDENCE OF ANY EXPERT
The Court is not bound to accept the evidence of any expert, even one who has no disclosed incentive or motive other than helping the Court in the quest for justice. Therefore, when an expert witness, by his own ipse dixit, portrays himself as one hawking his evidence or a mercenary who would fight any man’s battle for a fee as it were, gives evidence in Court, the Court has a duty to treat his evidence with the disdain it deserves. After all, as the saying goes, “he who pays the piper dictates the tune of the music”. PER NWALI SYLVESTER NGWUTA, J.S.C.
JUSTICES
WALER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
STANLEY SHENKO ALAGOA Justice of The Supreme Court of Nigeria
Between
OLUWAROTIMI O. AKEREDOLU, ESQ., SAN APPELLANT/CROSS RESPONDENT Appellant(s)
AND
- DR. RAHMAN OLUSEGUN MIMIKO
2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENTS/CROSS APPELLANTS Respondent(s)
NWALI SYLVESTER NGWUTA, J.S.C. (Delivering The Leading Judgment): On the 20th day of October, 2012, the 3rd Respondent herein (INEC), conducted election for the Office of the Governor of Ondo State. In the election, Appellant, flew the flag of the Action Congress of Nigeria, a registered Political Party.
The 1st Respondent was the candidate of the 2nd Respondent, the Labour Party LP, also a registered political party, at the election. The 3rd Respondent, INEC, is the nation’s Electoral Umpire. Candidates of other registered political parties, including the PDP, contested the election with the Appellant and the 1st Respondent.
At the close of the election, the following results were recorded and announced by the 3rd Respondent:
Oluwarotim Akeredolu, ACN = 143,512 Votes
Chief Alex Olusola Oke, PDP = 155,196 Votes
Dr. Rahman Mimiko, LP = 260,199 Votes.
In the light of the above scores, the 1st Respondent, Rahman Mimiko of the Labour Party (LP), was declared Winner of the election by the 3rd Respondent (INEC).
Appellant challenged the declaration of the 1st Respondent as the duly elected Governor of Ondo State by a petition filed in the Election Petition Tribunal constituted for Ondo State, on 9th November, 2012. In its judgment of 3rd May, 2013 the trial Tribunal dismissed the appellants’ petition and affirmed the election and return of the 1st Respondent as the duly elected Governor of Ondo State.
Aggrieved by the decision of the Tribunal, the appellant appealed to the Court of Appeal, Ondo Judicial Division. On the 1st July 2013, the Court below, in its judgment, dismissed the appeal and affirmed the decision of the trial Tribunal.
Dissatisfied with the judgment of the court below, the appellant, by their Notice of Appeal filed on 11/7/2013, appealed to this Court on 1-3 grounds, which are hereunder reproduced, shorn of their particulars:
“GROUNDS OF APPEAL:
(1) The learned Appellate Justices erred in law when after correctly finding that the only reason the Tribunal discountenanced the evidence of PW34 and PW35 propelled on Exhibits P52 (A & B) and P55, P56 and P57 was because of the perverse finding of the Tribunal that the petitioners had knowledge of the contents of the Voters Register at least one month before the election but later in their judgment held the Tribunal properly evaluated the evidence of the two witnesses and other witnesses, and was right in rejecting their evidence on the ground that they were not credible object expert witnesses whose evidence would be of any assistance to the Tribunal.
(2) The learned Appellate Justices erred in law when they confirmed the holding of the Tribunal that evidence of PW34 was not reliable simply because he was hired for a fee.
(3) The learned Appellate Justices erred in law when they held that the finding of the Tribunal that the evidence of PW34 is unreliable because PW34 testified that he was briefed to look for evidence to sustain the petition that was already filed cannot be interfered with.
(4) The learned Appellate Justices erred in law when they held thus:
The findings of fact by the Tribunal that the PW34 and PW35 and their reports are unreliable are findings that the appellate Court does not readily interfere with, unless they are perverse. In the instant case the findings are not perverse as the printed evidence show.’
(5) The learned Appellate Justices erred in law when they held that the appellants have not proved how the various acts of non-compliance with the Electoral Act alleged in the petition affected the outcome of the election and that the presumption of regularity in Section 168(1) of the Evidence Act enured in favour of the judgment of the Tribunal dismissing the petition.
(6) The Learned Appellate Justices erred in law when having found that the Voters Register used for the election did not comply with statutory requirements of the Electoral Act still proceeded to hold that the presumption of regularity in Section 168(11) of the Evidence Act 2011 enured in favour of the judgment of the Tribunal.
(7) The learned Appellate Justices erred in law when they held that the petitioners/Appellants failed to prove how the non-compliance of the Voters Register used for the election with the Electoral Act substantially affected the result of the election.
(8) The learned Appellate Justices erred in law when they held that the Appellants did not show how the judgment appealed had occasioned substantial injustice or miscarriage of justice to them in the light of the facts and prevailing circumstances of the extant provision of the Electoral Act, 2010.
(9) The learned Justices erred in law when they held the Tribunal had adroitly evaluated the evidence of the two experts when the same evidence of PW34 and PW35 and their reports were discountenanced by the Tribunal.
(10) The learned Appellate Justices erred in law when they held that the 1st Appellant was in pari delicto with the 3rd Respondent (INEC) in respect of illegal injection of names into the Voters Register for the election.
(11) The lower Court erred in law when it held thus:
“The Appellants submit that the POW35 through his exhibits P56 and P57 established that over 164,072 were unlawfully injected into the 2012 Voters Register. If the balance of 10,725 arithmetically, the difference between 1,654,205 and 1,553,580 figures in 2012 and 2011 Voters Registers respectively then the calculation of PW35 the expert appears preposterous, outlandish and perverse.’
(12) The lower Court erred in law when it held thus:
‘All the findings of fact on non-accreditation, over-voting and the sundry acts of electoral malpractices pleaded by the Appellants as petitioners were made upon painstaking and scrupulous evaluation of the evidential materials on them. Upon these proper evaluation of facts, as done by the Tribunal, the findings of the Tribunal on the issues of non-accreditation, corrupt practices and the sundry acts of electoral malpractices cannot be faulted.’
(13) The judgment is against the weight of evidence.”
From their 13 grounds of appeal, Appellant distilled the following five issues for determination:
“1. Whether the learned Appellate Justices were not wrong in affirming the holding of the Tribunal that the evidence of PW34 was unreliable simply because the witness was briefed upon a fee to look for evidence to sustain the petition already filed. This issue relates to Grounds 2 and 3.
2. Whether the learned Appellate Justices were right in holding that the Tribunal properly evaluated the evidence of PW34, PW35, their reports and Exhibits P52 (A & B) P55 and P57 and the evidence of other witnesses before dismissing same as unreliable. This issue relates to grounds 1, 4, 9, 12 and 13.
3. Whether the Appellate Justices having found that the Voters Register used for the conduct of the 2012 election did not comply with mandatory provisions of the Electoral Act, it was necessary for the appellants to prove how the non-compliance affected the result of the election and if so whether there was not sufficient evidence on the record in proof of how the sundry acts of non-compliance affected the result of the election. This issue relates to grounds 5, 6, 7 and 8.
4. Whether the Appellate Justices were right when they raised, considered suo motu and held that the 1st Appellant was in pari-delicto with the 3rd Respondent in respect of illegal injection of names into the Voters Register in spite of the Pleadings and uncontroverted evidence before the Court to the contrary. This issue relates to ground 10.
5. Whether it was open to the Lower Court to substitute or rely on its own views outside the records and use same to discredit the evidence of PW35 which was not challenged or controverted by the Respondents. This issue relates to ground 11.”
In response, learned Counsel for the 1st Respondent,Dr. Oladapo Olanipekun, in his brief of argument, formulated the following two issues for determination:
“1. Having regard to the admissible evidence led by the Appellants in support of their Petition, vis-a-vis the state of the law on the burden and standard of proof as well as the reliefs sought in the Appellants’ Petition, whether the lower Court was right in affirming the decision of the trial Tribunal, dismissing the Appellants’ petition (Grounds 5, 6, 7, 8, 10 and 13).
2. Whether the Lower Court was not right when it affirmed the decision of the trial Tribunal discountenancing the commissioned evidence of PW34 and PW35 (Grounds 2, 3, 4, 9, 11 and 12).”
In his brief of argument filed on 29/7/2017, the learned Silk for the 2nd Respondent, Yusuf O. Alli, SAN, presented these three issues for determination:
“(1) Whether the Court below was not right in endorsing the findings and conclusions of the trial Tribunal on the testimonies and documentary evidence proffered by the PW34 and PW35 at the trial.
(2) Whether considering the totality of the oral and documentary evidence canvassed at the trial the Court below was not right in its conclusion that the Appellants failed totally to proof (sic) any of the allegations made in the petition at the trial.
(3) Whether on a calm view of the case, the Court below was not right in its view that the Appellants were unable to demonstrate the effect of the alleged injection of names into the Voters Register on the outcome of election.”
Learned Senior Counsel for the 2nd Respondent indicated that issue 1 covered grounds 1, 2, 3, 4, 9 and 11; issue 2 covered grounds 5, 8, 12 and 13 and issue 3 covered grounds 6, 7 and 10 of the grounds of appeal.
In the 3rd Respondent’s brief, settled by Chief Adegboyega Awomolo, SAN, as lead Counsel, the following two issues were set down for determination:
“(1) Was the Court of Appeal correct in upholding the decision of the Tribunal to the effect that PW34 and PW35 did not render credible evidence capable of sustaining the petition.(Grounds 1, 2, 3, 4, 9 and 11).
(2) Was the Court of Appeal correct in upholding the decision of the Tribunal to the effect that the Appellants failed to establish that the acts of non-compliance with the Electoral Act alleged by them vitiated the Governorship election of Ondo State. (Grounds 5, 6, 7, 8, 10 and 13)”
Before presenting his two issues for determination, learned Senior Counsel for the 3rd Respondent objected to the competence of grounds 2, 3, 6 and 10 of the grounds of appeal. His argument on the preliminary objection was incorporated in the 3rd Respondent’s brief.
In ground 2 of the grounds of appeal, appellant complained that:
“The learned Appellate Justices erred in law when they confirmed the holding of the Tribunal that evidence of PW34 was not reliable simply because he was hired for a fee.”
Ground 3: The learned Appellate Justices erred in law when they held that the finding of the trial Tribunal that the evidence of PW34 is unreliable because PW34 testified that he was briefed to look for evidence to sustain the petition that was already filed cannot be interfered with.
Ground 6: The learned Appellate Justices erred in law when having found that the Voters Register used for the election did not comply with statutory requirement of the Electoral Act still proceeded to hold that the presumption of regularity in Section 168(1) of the Evidence Act 2011 enured in favour of the judgment of the Tribunal.
Ground 10: The learned Appellate Justices erred in law when they held that the Appellant was in pari-delicto with the 3rd Respondent (INEC) in respect of illegal injection of names into the Voters Register used for the election.
A preliminary objection is a pre-emptive strike aimed at scuttling the entire appeal in limine. If the objection is raised against particular grounds of appeal as is the case before us, the intention is to prevent the Court from considering the issues raised from the grounds objected to in the determination of the appeal.
Because of its nature and intendment, a preliminary objection, whether it is directed at the entire appeal or some grounds of appeal, is determined before any further action is taken on the appeal, and I will now determine the objection on the argument offered by Counsel for the Parties.
In brief, 3rd Appellant’s grouse with ground 2 in the appellants, ground of appeal is that the allegation that the Tribunal treated the evidence of PW34 as unreliable”simply because he was hired for a fee.” Is not contained in the printed records of the trial Tribunal and the lower Court could not have affirmed a finding that was not made in the judgment appealed against.
In ground 3, it was also argued for the 3rd Respondent that the record of the trial Tribunal does not contain the assertion that the Tribunal discredited the witness for stating that he was briefed upon a fee to look for evidence to sustain the petition that was already filed.
In ground 6, it was argued that the lower Court, contrary to the appellants’ contention, only held that the Tribunal, having acted in an official capacity, its judgment was ex facie valid until the contrary is established by the appellants.
In ground 10, reference was made to the judgment of the Court below at pages 2045 to 2046 of the record wherein the Court reproduced the argument of Chief Olanipekun, SAN. It was argued that the said reproduction of the argument/comment of the learned Silk without more cannot qualify as a finding made by the Court over which a ground of appeal can be validly raised.
Learned Senior Counsel for the 3rd Respondent urged the Court, based on his argument, to strike out grounds 2, 3, 6 and 10 of the appellant’s grounds of appeal for being incompetent.
Appellant’s Reply Brief to the 3rd Respondent’s brief filed on 3/8/2013 incorporated appellant’s reply to the 3rd Respondent’s argument on preliminary objection.
In answer to ground 2, it was argued for the appellant that the objection is misconceived. A portion of the judgment of the Court below at page 21 of the record was reproduced. The lower Court had said that “PW34 who was also under cross-examination had admitted that he was briefed upon a fee” to look for evidence to sustain the petition that was already filed, was rightly dismissed as not being credible objective expert witness whose evidence would be of any assistance to the Tribunal.”
In the appellant’s view the above finding of the Court below justified ground 2 of the ground of appeal. In ground 3, the appellant described the objection as misconceived, frivolous and mischievous. In support of this contention, reliance was put on the portion of the judgment of the Court below at page 2O41 of the record which reads:
“The findings of fact by the Tribunal that PWs 34 and 35 and their reports are unreliable and findings that the appellate Court does not readily interfere with unless they are perverse. In the instant case the findings are not perverse as the printed records show.”
Ground 6 was described as frivolous and vexatious and that the said ground was based on the judgment of the lower Court. In ground 10, it was argued for the appellant that learned Counsel for the 3rd Respondent did not appreciate “the full stop mark placed after the word ‘election’ which allegedly indicated the end of the statement made by Chief Olanipekun, SAN.
In other words, the entire paragraph relied on by the 3rd Respondent was not the statement of the learned Senior Counsel. The Court was urged to dismiss all the grounds of objection. In answer to ground 2, the learned Counsel for the Appellant relied on a paragraph at p.21 of the record to the effect that:
“PW34 who was also under cross-examination had admitted that he was briefed upon a fee to look for evidence to sustain the petition that was already filed was rightly dismissed as not being credible objective expert witness whose evidence would be of any assistance to the Tribunal” as the basis for the complaint that the Court below affirmed the holding that “the evidence of PW34 was not reliable simply because he was hired for a fee.”
From the record, the trial Tribunal did not find that the evidence of PW34 was not reliable “simply because he was hired for a fee”. Ground 2 of the grounds of appeal is therefore incompetent as the Court of Appeal could not and did not affirm a decision not contained in the judgment appealed against.
In ground 3, the Court below did not make the finding complained of by the Appellant. The Court of Appeal said that:
“The findings of fact by the Tribunal that the PWs34 and 35 and their reports were unreliable (which are) findings of fact that the appellate Court does not readily interfere with unless they are perverse.”
Contrary to ground 3 of the grounds of appeal, the lower Court did not make the finding attributed to it by the Appellant. The Court simply stated the findings of fact made by the trial Tribunal and declined to disturb same in absence of a showing that the finding was perverse.
In ground 6, I agree with the Learned Senior Counsel for the 3rd Respondent that if the ground is read with its particulars of error, the complaint is not borne out by the decision of the Court below. In ground 10, the Appellant sought to save the ground, by attempting to split the statement credited to Chief Olanipekun, SAN, at pages 2045 to 2046 of the record. However, the portions credited to the lower Court is to the effect that: “According to the Senior Counsel for the 1st Respondent this is a case of pot calling a kettle black.”
In my view the entire paragraph is a reproduction of the statement of Chief Olanipekun,SAN as reproduced by the lower Court in its judgment. Comment, statement or argument of Counsel, as distinct from a finding of the Court that the said statement, comment or argument is correct,cannot found a valid ground of appeal.
In conclusion, I sustain the 3rd Respondent’s preliminary objection to grounds 2, 3, 6 and 10 of the Appellant’s grounds of appeal as incompetent and they are hereby struck out and so are issues 1, 3 and 4 derived from them.
The main purpose of the formulation of issues for determination is to enable the parties to narrow the issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See Sha v. Kwan (2000) 78 LRCN 1645 at 1664; Ogbu Inyinya & Ors v. Obi Okudo & Ors (1990) 4 NWLR (Pt.146) 551 at 568.
It therefore follows that an incompetent or invalid ground of appeal cannot give rise to a valid issue for determination of an appeal.
Issue No.3 deserves special mention. It was derived from grounds 5, 6, 7 and 8. Of the four grounds, only ground 6 is incompetent. Be that as it may, the vitiating factor in ground 6 has tainted the product of a combination of these valid grounds of appeal and one invalid ground of appeal. Of the five issues presented by the appellant, only issues 2 and 5 are valid and will be considered in the determination of the appeal.
The two issues are:
“(2) Whether the learned Appellate Justices were right in holding that the Tribunal properly evaluated the evidence of PW34, PW35, their reports and Exhibits P52 (A & B), P55 and P57 and the evidence of other witnesses before dismissing same as un reliable.
(5) Whether it was open to the Lower Court to substitute or rely on its own views outside the records and use same to discredit the evidence of PW35 which was not challenged or controverted by the Respondents.”
Arguing issues 2 and 5 together, learned Counsel for the Appellant made specific reference to page 2041 of the record of the lower Court to the effect that:
“The evidence and reports of these two witnesses, PW34 and PW35 were intended to prove that the non-compliance of INEC with the Electoral Act in the computation and use of the 2012 Voters Register had substantially affected the outcome or the result of the election conducted on 20th October, 2012.
It was argued for the Appellant that since the lower Court held that the Tribunal had jurisdiction to make use of the evidence of PW34 and PW35 and Exhibits they tendered, the Court ought to have evaluated or properly evaluated the evidence. The Appellant’s Counsel impugned the finding of the Court below that “the Tribunal had adroitly evaluated the evidence of those two expert witnesses as perverse, as according to him, the Tribunal did not evaluate the evidence of PW34 and PW35. He urged the Court to resolve the issues in favour of the Appellant.
In dealing with the issue in his brief, learned Counsel for the 1st Respondent, said that the Appellant’s case is founded in various and serious allegations of crime, criminal negligence and criminal dereliction of duty. He referred to Section 33 (3) of the Evidence Act and submitted that the fact that pW34 and pW35 admitted that they were commissioned by the Appellant for financial reward formed part of the basis of the Tribunal’s rejection of their evidence.
He referred particularly to the admission of PW34 that “he was contracted to look for evidence to sustain the petition that was already filed.” As contained at pages 1570-1571 of the record. He relied on Fayemi v. Oni (2009) 7 NWLR (Pt.1140) 223 at 276-277 on the need for caution in admitting a report of expert not called at the instance of the Court. He concluded that the evidence of PW34 and pW35 was rightly rejected by the Tribunal and that the rejection was affirmed by the Lower Court and urged the Court to dismiss the appeal.
In his own argument, learned Senior Counsel for the 2nd Respondent, argued that the evidence of PW34 and PW35 on the examination of Voters Register and Electoral Forms does not fall within the purview of Section 68(1) of the Evidence Act 2011 and ipso facto PW34 and PW35 are not experts. He relied on the finding to that effect by the Tribunal at page 1726 of the record based on the evidence of the said witnesses.
He referred to pages 1727-1728 of the record where the “P34 admitted that he lifted information wrongly from primary sources and he even attempted an amendment of the document he is not the maker of when he answered that “the number of ballot papers issued is 277 but when you add up you arrive at 283”.
Learned Senior Counsel referred to page 39 of the record where PW35 admitted several errors on his report and using a wrong data on the 3011 Voters Register to arrive at figures in his report. He impugned the evidence of the rest of the Appellant’s witnesses as hearsay which cannot advance the appellant’s case. He relied on Doma v. INEC (2012) All FWLR (Pt.628) 815 at 829 among others and urged the Court to decide in favour of the Respondents and against the Appellant.
In his own argument, learned Senior Counsel for the 3rd Respondent referred to pages 1726-1727 of the record where the Tribunal ended its finding by saying that “even if we were to accept the report of PW35, it will certainly be lacking in probative value” a finding which he said was sustained by the Court below. He said it was not true that the evidence of PW34 and PW35 was rejected simply because they were hired to give evidence in support of the petition.
The Tribunal found and the Court below confirmed that the evidence of the PW34 and PW35 was unreliable on grounds other than their being hired by the Appellant.
From the record, it is clear that even though the Tribunal declined to use the evidence relating to injection of names in the Voters Register, in the alternative, it critically examined the said evidence of the PW34 and PW35 and found same unreliable, not only because they were hired to find evidence to support Appellant’s petition, but also because of errors and deliberate attempt to distort facts contained in the evidence of the said witnesses. The Tribunal examined the evidence of PW34 and PW35 and the reports they prepared and made a finding of fact that the evidence was not reliable. This finding of fact was endorsed by the Court below.
From the petition, the case of the Appellant on the injection of names into the Voters Register appears incapable of proof. In paragraph 30 of the Petition, at pages 11-12 of Vol. II of the record, it was asserted that the petitioners had information from undisclosed source that the 1st and 2nd Respondents with the connivance of the Electoral Umpire, INEC, the 3rd Respondent, secretly computed illegal Voters Register for use at the election.
In paragraph 32, it was claimed that the 3rd Respondent secretly manipulated the Voters Register with active connivance of the 1st and 2nd Respondents. In view of the irreconcilable conflict in paragraphs 30 and 32 of the petition, it cannot be proved who, among the 1st and 2nd Respondents on one hand, and the 3rd Respondent, on the other hand injected the alleged 100,000 names into the Voters Register or connived at the alleged injection.
It was claimed that the mode of manipulation of the Voters Register was the registration exercise called “Card Igbe Ayo”, was used as a cover for the alleged manipulation of the Voters’ Register by injection of 100,000 names as voters for the election. In the circumstances, the “Card Igbe Ayo” Register is the bedrock of the Appellants but it was not produced at the trial.
Further compilation of illegal Voters’ Register for use in any election is a criminal act and as such ought to be proved beyond reasonable doubt. See Section 135 (1) of the Evidence Act, 2011. This principle applies in an election case where allegation of crime is made. See Abubakar v. Yar’adua (2009) All FWLR (Pt. 457) 1 SC. The allegation of criminal offence was not proved as required by law.
But assuming without conceding that proof beyond reasonable doubt was attained, the Appellant had to prove the effect of the injection of 100,000 names in the Voters’ Register on the outcome of the election. Even if it is proved that all the alleged 100,000 voters injected into the Voters’ Register turned out and voted for the 1st Respondent, it will be necessary to deduct the 100,000 votes as illegal votes for the 1st Respondent’s total scores.
The simple arithmetic will be 1st Respondent’s total votes of 260,199 less the alleged 100,000 illegal votes. The result is 160,199 votes which is 16,687 votes in excess of Appellant’s 143,512 votes.
In addition to pleading and proving the alleged manipulation of the Voters’ Register, the Appellant had a further duty to plead and prove the effect of the alleged manipulation on the result of the election and this was not done.
Appellant’s case rests largely on the evidence of PW34 and PW35, the alleged experts who were found by the trial Tribunal and affirmed by Court below to be bereft of expertise on the issue on which they gave evidence.
The Court is not bound to accept the evidence of any expert, even one who has no disclosed incentive or motive other than helping the Court in the quest for justice. Therefore, when an expert witness, by his own ipse dixit, portrays himself as one hawking his evidence or a mercenary who would fight any man’s battle for a fee as it were, gives evidence in Court, the Court has a duty to treat his evidence with the disdain it deserves. After all, as the saying goes, “he who pays the piper dictates the tune of the music”.
It is my considered view that each of the two surviving issues 2 and 5 in the Appellant’s brief of argument lacks merit. The two issues are resolved against the Appellant and in favour of the Respondents. Consequently, I hereby dismiss the appeal and affirm the judgment appealed against.
Parties are to bear their respective costs.
CROSS-APPEAL
There is a cross-appeal filed by the 1st Respondent and another one by the 3rd Respondent in the main appeal. I will determine both cross-appeals together.
The single issue in the 1st Respondent’s cross-appeal is whether the lower Court was not in error when it came to the conclusion that the trial Tribunal was wrong in holding that it lacked jurisdiction to entertain the pre-election matter of alleged injection of names in the Voters Register.
In the cross-appeal filed by the 3rd Respondent, two issues were formulated for resolution by the Court. The issues are:
“1. Whether the Court of Appeal was correct in setting aside the finding of the Tribunal that the irregularities relied on in the petition were pre-election matters brought to the knowledge of the 1st and 2nd Cross-Respondents before the election over which the Tribunal had no jurisdiction. Grounds i, ii, iv and v.
2. Did the Court of Appeal properly construe Section 19(1) of the Electoral Act 2010 (as amended) in holding that there was no evidence that the Cross-Appellant complied with “Statutory Commandment” with respect to the Voters Register used for the election.”
The Cross-Respondents gave notices of preliminary objection to each cross-appeal, and argued same in the briefs’ I have carefully considered the three issues in the cross-appeals and the arguments in the briefs filed by both sides.
I think the crucial issue in the cross-appeals is whether or not the Tribunal had jurisdiction to entertain matters relating to alleged injection of names in the Voters Register used for the election I find that the preliminary objections are not sustainable and are hereby dismissed.
In determining the issue of jurisdiction of the Tribunal to entertain matters relating to alleged manipulation of the Voters Register, it is pertinent to draw a distinction between the occurrence of the facts amounting to injection of names in the Voters Register and the use of the allegedly manipulated Register in the election.
While the former is clearly an act done prior to the conduct of the election as disclosed in the evidence before the tribunal, the latter is an act contemporaneous with the conduct of the election. The former is a pre-election matter, over which the Tribunal had no jurisdiction but the latter, the use of the Register with the names injected therein for the election, is an election matter over which the Tribunal has jurisdiction. It is the use of the allegedly manipulated Voters Register at the election as distinct from the act of the alleged manipulation which is prior to the election that the lower Court said the Tribunal had jurisdiction to entertain.
I resolve the issue in each cross-appeal against the Cross-Appellants and in favour of the Cross-Respondents.
The cross-appeal filed by the 1st Respondent as well as the one filed by the 3rd Respondent in the main appeal, lack merit and are hereby dismissed.
Parties shall bear their respective costs.
STANLEY SHENKO ALAGOA, J.S.C.: This is an appeal against the judgment of the Court of Appeal Akure Division (hereinafter simply referred to as the Lower Court or the Court below) which affirmed the judgment of the Governorship Election Tribunal sitting in Akure dismissing the petition filed by the petitioners Oluwarotimi Akeredolu and the Action Congress of Nigeria (ACN) which party sponsored him. In contention at the said election which was conducted by the 3rd Respondent the Independent National Electoral Commission (INEC) on the 20th October, 2012 in Ondo State was the Governorship seat for Ondo State which was keenly contested not only by the present parties to this appeal but by other candidates sponsored by their various political parties. The 1st Respondent Rahman O. Mimiko of the Labour Party (2nd Respondent) was declared duly elected having been adjudged by the 3rd Respondent (INEC) as having scored a majority of lawful votes cast at the election. Aggrieved by the judgment of the Court below the Petitioners as Appellants further appealed to the Supreme Court by their Notice of Appeal filed on the 11th July, 2013 consisting of thirteen Grounds from which the Appellant distilled five Issues in paragraph 3 at page 3 of the Appellants’ Brief of Argument dated 26th July, 2013 and filed same day. The said Issues are as follows:-
1. Whether the learned Appellate Justices were not wrong in affirming the holding of the Tribunal that the evidence of PW34 was unreliable simply because the witness was briefed upon a fee to look for evidence to sustain the petition already filed. This issue relates to Grounds 2 & 3.
2. Whether the Learned Appellate Justices were right in holding that the Tribunal properly evaluated the evidence of PW34, PW35, their reports and Exhibits P52 (A & B), P55, P56 and P57 and the evidence of other witnesses before dismissing same as unreliable. This issue relates to Grounds 1, 4, 9, 12 and 13.
3. Whether the Appellate justices having found that the Voters Register used for the conduct of the 2012 election did not comply with mandatory provisions of the Electoral Act, it was necessary for the appellant to prove how the non compliance affected the result of the election and if so whether there was not sufficient evidence on the record in proof of how the sundry acts of non-compliance affected the result of the election. This issue relates to grounds 5, 6, 7 and 8.
4. Whether the Appellate Justices were right when they raised, considered suo motu and held that the 1st Appellant was in pari delicto with 3rd Respondent in respect of illegal injection of names into the Voters Register in spite of the pleadings and uncontroverted evidence before the court to the contrary. This issue relates to Ground 10.
5. Whether it was open to the Lower Court to substitute or rely on its own views outside the records and use same to discredit the evidence of PW35 which was not challenged or controverted by the respondents. This issue relates to Ground 11.
The Respondents cross appealed and also raised objection to the competence of the appeal on some grounds in the Notice of Appeal. The Appellants also raised objection to the cross Appeal of the Respondents. Of particular note is the objection of the 3rd Respondent (INEC) to Grounds 2, 3, 6 and 10 of the Appellants Grounds of Appeal, which grounds, it is contended by the Respondents do not arise from the decision of the Court below. It was further contended by the Respondents that those grounds be struck out as well as issues 1, 3 and 4 distilled from those grounds. Having meticulously read through the said grounds 2, 3, 6 and 10 of the Appellants grounds of Appeal, I find and therefore inclined to agree with the Respondents that the said grounds did not arise from the judgment of the Court below. This Court, per Karibi Whyte, JSC, in SARAKI V. KOTOYE (1992) 1142 SCNJ. 26 put the position succinctly thus,
“It is a well settled proposition of law in respect of which there can hardly be a departure that the ground of appeal against a decision must date to the decision and should constitute a challenge to the ratio of the decision … Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from a judgment.”
Much more recently in HON. ZAKAWANU GARUBA & ORS V. HON. EHI BRIGHT OMOKHODION (2011) 12 NWLR (PART 1269) 145 this Court in similar vein held as follows:
“It is equally settled that a ground of appeal must correlate with as well as arise from the decision appealed against and should frontally attack the ratio of the decision otherwise it is baseless and liable to be struck out being incompetent.”
The rationale is that incompetent grounds of appeal cannot be argued along with competent grounds of appeal and so are liable to be struck out. The said grounds 2, 3, 6 and 10 are accordingly struck out.
In CHIEF KAFARU OJE & ANOR V. CHIEF GANIYU BABALOLA & ORS (1991) 4 NWLR (PART 185) 267, this court per Nnaemeka Agu, JSC, held that issues for determination as well as argument in the appeal should be based on the grounds of appeal duly filed. See also OSINUPEBI V. SAIBU & ORS (1982) 7 SC. 104, PAGES 110 – 111; WESTERN STEEL WORKS & ORS V. IRON AND STEEL WORKERS UNION OF NIGERIA & ORS NO.2 (1987) 1 NWLR (PART.49) 284 AT 304.
Issues 1, 3 and 4 cannot therefore stand on their own having being distilled from the struck out grounds 2, 3, 6 and 10. The said issues are also accordingly struck out. This done, the arguable part of this appeal is hinged upon what can be made out of the evidence of PW34 and PW35 which evidence had been discredited by the trial Tribunal which view had found support with the court below.
The petition had been based on allegations of corruption and non-compliance with the provisions of the Electoral Act. Both the trial tribunal and the court below however thought and held otherwise.
Section 139(1) of the Electoral Act 2010 as amended which is very germane to this discourse provides that,
“An election shall not be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election”
(Underlining mine for emphasis)
This provision is clear and admits of no ambiguity whatsoever. There is no dearth of authorities on this important legal principle. See for example YUSUF V. OBASANJO (2005) 18 NWLR (PART 956)96; OJUKWU v. YAR’ADUA (2009) 12 NWLR (PART 1154) 50 AT PAGE 140; BUHARI v. OBASANJO (2005) 13 NWLR (PART 941) 1 AT 80; BUHARI v. INEC (2008) 19 NWLR (PART 1120) 246 AT 435. The onus is on the Appellants who are asserting to prove this substantial non-compliance. A breakdown of Section 139(1) of the Electoral Act 2010 as amended is as follows:-
i. Appellant must prove non compliance with the provisions of the Electoral Act 2010 as amended.
ii. The non-compliance must be substantial.
iii. The substantial non-compliance must affect the result of the election.
Thus the heavy weather made by the Appellants that the lower court held that there was non compliance with the provisions of the Electoral Act 2010 as amended in the compilation of the voters Register used in the election is not enough. If the intension of the Appellants as learned Senior Counsel Chief Akin Olujimi has strenuously tried to portray is to rely on the evidence and documents tendered by PW34 and PW35 to show such substantial non compliance, the Appellants only succeeded in running into a brick wall. Appellants had portrayed PW35 as an expert and yet the Court below dismissed his evidence as “preposterous, outlandish and perverse.”
See page 2040 Vol. IV of the Records. Why was the court below so unsparing in its tongue lash It is on record and the court below found as of fact that the total number of voters in the 2011 Voters Register was put at 1,553,580 while the total registered voters in the 2012 voters Register was put at 1,654,205. By simple arithmetical calculation the difference between the 2011 and 2012 figures is 100,725 and yet, PW35 as his exhibits P56 and P57 show, gave a figure of 164,072 as having been unlawfully injected into the 2012 Voters Register. PW35 was seriously discredited during cross examination by Counsel to the 3rd Respondent. The lower court’s conclusion was that the report of PW35 should be taken with a pinch of salt. The lower court in so asserting was only acceding and rightly too in my view to the finding of the trial tribunal before it. If the evidence of PW35 was found to be “preposterous, outlandish and perverse”, that of PW34 was outright dishonest and shameful as he admitted under cross examination to have been briefed upon a fee “to look for evidence to sustain the petition that was already filed.”
In this the court below agreed with the finding of the trial Tribunal that such evidence could not be relied upon. In my view there is nothing in evidence to show that the non-compliance which is alleged to be the injection of names into the voters register and a few other sundry allegations substantially affected the result of the election as to cause the election to be vitiated. The evidence of PW34 and PW35 were such as to amount only to hearsay.
The trial Tribunal and the court below have arrived at concurrent findings of fact and the attitude of the Supreme Court is replete in a number of judicial authorities which is that except there is established miscarriage of justice or violation of some principle of law or procedure or the findings are perverse the Supreme Court will not disturb such findings. See ADAKU AMADE V. EDWARD NWOSU (1992) 6 SCNJ 59. ONWUJUBA V. OBIENU (1991) 4 NWLR (PART 188) 16; OGUNDIYAN V. STATE (1991) 3 NWLR (PART 181) 519; IYARO V. THE STATE (1988) 1 NWLR (PART 691 256.The list is indeed inexhaustive. I do not find the findings of fact bedeviled by any of these lapses.
It is for these reasons and the fuller reasons contained in the lead judgment of my learned brother Nwali Sylvester Ngwuta, JSC, which I had the privilege to read in advance and which I completely agree with that I too find no merit in the Appeal and Cross Appeal.
I also dismiss same while abiding by all other order or orders contained in the said lead judgment including the order on costs.
“EDITOR’S NOTE- JUDGMENT NOT YET PARAGRAPHED AS THE CONTRIBUTIONS FROM ONNOGHEN, J.S.C., MUHAMMAD, J.S.C., CHUKWUMA-ENEH, J.S.C., FABIYI, J.S.C. AND PETER-ODILI, J.S.C. WERE UNAVAILABLE AT PRESS TIME. PARAGRAPHED VERSION OF THE JUDGMENT WILL BE PUBLISHED AND AUTOMATICALLY UPDATED AS SOON AS THE OUTSTANDING CONTRIBUTIONS ARE RECEIVED.”
Appearances
- A. Okwumah, Esq, with Wole Aina, Esq., Michael F. Lana, Esq., Folashade Aladeniyi, (Mrs), Benson Aderosin, Esq, Olujinmi Olumide, Esq,, Olujinmi Akinyemi, Esq., Sodeinde Taiwo, Esq., Victor Olatoyegun, Esq., Charles Titiloye, Esq., Bola Alabi, Esq., Akinola Fasanmi Esq., Adegbemile H. Kayode, Esq., Bode Famakin, Esq., Ifeanyi Egwuasi, Esq,, Bala M. Matthew, Esq,, Dare Oketade Esq, Kayode Adegbola, Esq. Balogun Omoyemi, Esq., Adaeze Oguchienti, (Miss) and Nwankwo, Esq., for the Appellant/Cross Respondent. For Appellant
AND
Chief Wole Olanipekun, SAN, with I. A. Adedipe, SAN, Adebayo Adenipekun, SAN., Abayomi Akinmode Esq, Kayode Ajulo, Esq., O. Adeyemi, Esq., Kunle Iyalana, Esq., Dr. Dapo Olanipekun, Esq., Bode Olanipekun, Esq., Olumide Ogunje, Esq., Kehinde Ogunwumiju, Esq., B. Aduloju, Esq., Ademola Adesina, Esq., Adebayo Adesina, Esq., Ademola Abimbola, Esq., Thompson Akinyemi, Esq., P. C. Ezegamba, Esq., I. Wakama, Esq., Vessessa Onyemauwa, Esq., and Ibiso E. Briggs, Esq. for the 1st Respondent/Cross-Appellant.
Yusuf Ali, SAN, with A. O. Adelodun, SAN., Prof. Wahab Egbewole Esq., K. K. Eleja, Esq., A. O. Abdulkadir, Esq., S. O. Akangbe, (Mrs)., S. A. Abdullahi Esq., Taofiq Alubarika, Esq., T. E. Akintunde, (Mrs.)., C. O. Mbam, Esq., E. I. Umunnakwe, Esq and T. U. Ekomaru, Esq., for the 2nd Respondent/Cross-Appellant.
Dr. Onyechi Ikpeazu, SAN, with Abdul Mohammed, Esq., Wale Balogun, Esq., Sandy Tadaferua, (Mrs.) and Eyitayo Fatogun, Esq., for the 3rd Respondent/Cross-Appellant. For Respondent
