HON. AYANYINKA TIMOTHY OLUSEGUN & ANOR v. HON. OLATEJU ADEMOLA AJADI & ORS.
(2010)LCN/3888(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of June, 2010
CA/I/EPT/LH/52/08
RATIO
DEFINITION OF THE WORD “AGENT”
The word “agent” has been defined in the 7th edition of the Blacks Law Dictionary as: “One who is authorized to act for or in place of another…” PER MODUPE FASANMI, J.C.A
RULE OF INTERPRETATION: MAIN OBJECT OF INTERPRETATION OF A STATUTE
The main object of interpretation of a statute is to discover the intention of the law maker which is deducible from the language used. PER MODUPE FASANMI, J.C.A
WHETHER THE COURT HAS A DUTY TO GIVE A STATUTE OR PROVISION THEREOF ITS PLAIN, ORDINARY AND LITERAL
A court has a duty to interprete a statute or provision thereof by giving it plain, ordinary and literal meaning except where such an interpretation will lead to manifest absurdity. In the instant case, the provision of section 144(2) of the Electoral Act 2006 is clear and unambiguous and therefore does not admit of any constructive meaning. See ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR Part 1120 page 1 at 94 paragraphs E-G; see also national ASSEMBLY VS. PRESIDENT FEDERAL REPUBLIC OF NIGERA (2003) 9 N.W.LR Part 824 at 104 and RAY vs. MADUABU (2006) ALL F.W.LR Part 310 at 163 reported as I.N.E.C VS. RAY (2004) 14 NWLR PART 892 AT 92. PER MODUPE FASANMI, J.C.A
ON WHAT BASIS WILL AN ELECTION BE NULLIFIED ON THE BASIS OF ELECTORAL MALPRACTICES
It is settled law that the reliefs for the nullification of an election on the basis of electoral malpractices should only be acceded to if the Respondent is established to have personally committed the offences or authorized the Commission of same by his agents. Seethe cases OYEGUN VS. IGBINEDION (1992) 2 NWLR Part 226 at 747; QPIA VS. IBRU (1992) 3 N.W.L.R. Part 231 page 658 at 694; WALI VS. BAFARAWA (2004) 16 N.W.LR Part 898 at page 1 and BUHARI VS. OBASANJO (2005) 13 NWLR Part 941 at page 1. PER MODUPE FASANMI, J.C.A
PLEADINGS: EFFECT OF UNPROVED PLEADINGS AND WHETHER ANY EVIDENCE WHICH IS AT VARIANCE WITH ONE’S PLEADINGS GOES TO NO ISSUE
It is the law that unproved pleadings are deemed abandoned and any evidence which is at variance with one’s pleadings goes to no issue. See FAYEMI VS. ONI (2009) 7 NWLR Part 1140 page 223 at 255 paragraph A, N.E.P.A VS. EDEGBERO (2000) 14 NWLR Part 688 at 615 and N.E.C.O VS. ACTION CONGRESS (2009) 2 NWLR Part 1126 at 524 particularly at 604. PER MODUPE FASANMI, J.C.A
CONDITION UNDER WHICH A CANDIDATE AT AN ELECTION CAN HAVE HIS ELECTION NULLIFIED ON THE GROUND OF CORRUPT PRACTICES OR OTHER IRREGULARITY COMMITTED IN THE PROCESS OF THE ELECTION
A candidate at an election cannot have his election nullified on the ground of corrupt practices or other irregularity committed in the process of the election unless it can be proved that such a candidate either expressly or by necessary implications authorized the illegality or corrupt practices. See OPIA VS. IBRU (1992) 3 NWLR Part 231 at 658; OYEGUN VS. IGBINFDTON (1992) 2 NWLR Part 226 at 747; AYUA VS. ADASU (1992) 3 NWLR Part 231 at 598 and WALI VS. BAFURAWA (2004) 16 NWLR Part 898 page 1 at 45. PER MODUPE FASANMI, J.C.A
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. HON. AYANYINKA TIMOTHY OLUSEGUN
2. LABOUR PARTY Appellant(s)
AND
1. HON. OLATEJU ADEMOLA AJADI
2. PEOPLE DEMOCRATIC PARTY
3 INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. RESIDENT ELECTORAL COMMISSIONER OYO STATE GOVERNMENT
5. ELECTORAL OFFICER FOR OGBOMOSHO SOUTH LOCAL GOVERNMENT
6. RETURNING OFFICER FOR OGBOMOSHO SOUTH CONSTITUENCY Respondent(s)
MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal Sitting in Ibadan, Oyo State delivered on the 29th of January 2008. The Tribunal dismissed the petition of the Appellants challenging the return of their 1st Respondent as the winner of Ogbomosho South Constituency of Oyo State House of Assembly.
The Appellants Hon. Ayanyinka Timothy Olusegun and Labour Party by a petition dated 9th May 2007 challenged the declaration and the return of the 1st Respondent Hon. Olateju Ademola Ajadi who was sponsored by the 2nd Respondent for the election of 14/4/2007 conducted by the Independent National Electoral Commission (I.N.E.C) based on grounds of rigging, violence, perpetrated by the 1st and 2nd Respondents, malpractices and non-compliance with the Electoral Act 2006 by the 3rd-6th Respondents. All were pleaded and set out in paragraph 13 of the petition.
It is the contention of the Appellants that:
(1) There was no accreditation of voters
(2) That citizens were intimidated and chased away from polling booths
(3) No voting took place
(4) That there was no counting of votes in the polling booths as the agents did not sign the results sheets.
Appellants being dissatisfied with the Judgment of the Tribunal appealed to this court. The notice of appeal filed against the judgment is contained at pages 286-292 of the record of proceedings. The notice of appeal contained eight grounds of appeal and was filed on the 19th of February, 2008. In compliance with the Rules of this Court, Appellants filed their brief of argument on the 21st of July 08. 1st and 2nd Respondents’ filed their brief of argument on the 10th of September, 08 while the 3rd-6th Respondents filed their brief of argument on 6/1/09 but deemed properly filed on 30/6/09.
Appellants distilled five issues for determination as follows:
(1) Whether the non-joinder of the presiding Officers in the units and wards of Ogbomosho South constituency was fatal to the petition of the Appellants
(2) Whether the election tribunal was not in error by failing to invalidate the return of the 1st Respondent considering the specific pleading and uncontroverted evidence on non-accreditation of voters by the 3rd-6th Respondents and their agents
(3) Whether the non-nullification of the returns/declaration of the 1st Respondent by the Election tribunal was proper in view of the pleadings, evidence and finding by the tribunal on record of violence, intimidation, thuggery and malpractices perpetrated by the 1st and 2nd Respondents agents
(4) Whether the lower tribunal was wrong in their judgment having failed to critically examine the – results forms placed before it in the light of the oral evidence proffered before the tribunal before holding that the Petitioners failed woefully to rebut the presumption of genuiness of the result forms from I.N.E.C
(5) Whether on the balance of probability, the election return of the 1st Respondent by the 3rd-6th Respondents for Ogbomosho South Constituency should have been nullified.
1st and 2nd Respondents in their brief of argument distilled three issues for determination as follows:
(1) Whether in view of the provision of Section 144(2) of the Electoral Act 2006, the trial Tribunal was justified in law by striking out paragraphs 13(i) a, b, c, d, e, f and g of the petition.
(2) Whether the trial Tribunal is left with anything to adjudicate upon after the striking out of paragraphs 13(i) a, b, c, d, e, f and g
(3) Whether the Appellants have proved the allegation of malpractices or shown by any credible evidence that the election of the 1st Respondent ought to have been nullified and invalidated 3rd-6th Respondents in their brief of argument distilled two issues for determination as follows:
(1) Whether the 3rd Respondent can be criminally liable for offences allegedly committed by officers and persons not joined as parties to the suit
(2) Whether the Appellants proved their case beyond reasonable doubt to justify a nullification of the return of the 1st Respondent.
The bone of contention between the parties in their respective ‘briefs of argument and upon which pungent submissions were made is that:
(1) Whether the non-joinder of the Presiding Officers in the units and wards of Ogbomosho South
Constituency was fatal to the petition of the Appellants.
(2) Whether the Appellants have proved the allegation of malpractices or shown by any credible evidence that the election of the 1st Respondent ought to have been nullified and invalidated.
I am of the view that this appeal can be effectively determined on the two issues stated above which are lifted from the Appellants issue one and 1st and 2nd Respondents issue 3 distilled for determination. The other issues formulated are repetitions of these two issues and the appeal will be determined on these issues stated above.
Issue One
Whether the non-joinder of the Presiding Officers in the units and wards of Ogbomosho South Constituency was fatal to the petition of the Appellants.
Learned Counsel for the Appellants submitted that this issue is a challenge against the holding of the lower tribunal striking out paragraph 13 of the petition on the ground of non joinder of the wards, units and of Presiding Officers. He argued that the findings of the lower Tribunal based on the authorities of:
(i) Tafida vs. Bafarawa (1999) 4 NWLR Part 597 at 70
(ii) Kalib vs. Alero (1999) 4 NWLR Part 597 at 139
(iii) Buhari vs. Obasanjo (2005) All F.W.L.R Part 273 at page 1
(iv) Biyu vs. Ibrahim (2006) 8 NWLR Part 981 at page 1
(v) Ngige vs. Obi (2006) All F.W.L.R Part 330 pages 10-11
relied upon would have been appropriate, if the Electoral Act which calls for interpretation were to be the 2002 Electoral Act, Decree 3 of 1999, and the previous Electoral Acts on Election in Nigeria. He submitted that the Electoral Act that calls for interpretation is the 2006 Electoral Act more particularly section 144 (2) of the 2006 Electoral Act.
Learned Counsel for the Appellant submitted that the provision of Section 144(2) of the Electoral Act 2006 is not in any previous enactment. The lower tribunal therefore had a duty to look and consider Section 144(2) in the light of its content and not based it on previous Electoral enactments and the decisions based thereon. He argued further that the Election Tribunal had a duty to give the provisions of Section 144(2) their ordinary, clear and unambiguous meaning. He referred to the cases of MOBIL OIL NIG. LTD. VS. F.B.I.R (1977) 3S.C at 53 and OTTO VS. MABEMIJE (2005) ALL F.W.L.R Part 262 page 597 at 605. He submitted that the lower tribunal failed in its duty to give Section 144(2) its ordinary, clear and unambiguous meaning. He submitted that the commission (I.N.E.C) has a duty to defend all steps and acts done by its agents in carrying out its statutory duties which will include giving evidence of rebuttal where necessary by calling the agents that acted for it. It is therefore no longer mandatory to join agents of the commission. According to learned Counsel the issue of non-joinder was raised for the 1st time at the address stage. He submitted that the Respondents have not shown what they have suffered by the non-joinder and it was too late for the Respondents to have raised the issue at the stage of address. Learned Counsel for the Appellants urged the Court to resolve issue one in favour of the Appellants and set aside the decision of the lower tribunal on non-joinder of electoral officers and the striking out of paragraph 13 of the petition.
Learned Counsel for the 1st and 2nd Respondents submitted that the issue posited for determination revolves on the Interpretation of Section 144(2) of the Electoral Act 2006.
Learned Counsel reviewed the grounds of the petition and / summarized them to rigging of election results by various devices. He submitted that where an allegation of rigging, overvoting, falsification of results, inflation of results, irregularities, electoral malpractices are alleged in an election petition, the allegations are directed at the presiding officers and other electoral officers in charge of the polling units and as such they constitute statutory parties to be joined as Respondents as they are in charge of the polling units by virtue of the provisions of Section 62 of the Electoral Act 2006. He relied on the judicial authorities of BIYU vs. IBRAHIM (2006) 8 NWLR Part 981 at page 1, KALLAMU VS. GURIN (2003) 16 NWLR Part 847 at 493, HQMNMA VS. UDENWA (2004) 1 NWLR Part 854 at 303, KALIB VS. ALERO (1999) 4 NWLR Part 597 at 13 and NWOKE VS. EDEOGU (1999) 6 NWLR Part 606 at 247.
Learned Counsel posited that the general consensus of judicial opinion is that a Petitioner who alleges any irregularity or election malpractices is required to join the officer in the unit where the complaint is made because such officers or other persons who took part in the conduct of the election are deemed to be Respondents by the Electoral Act 2006 and shall be joined in the petition in their official status. Learned Counsel commended to us the authorities of AWUSE VS. ODILI (2005) 16 NWLR Part 952 page 416 at 468-469 paragraph H-C and KALU VS. OHUABUNWA (2004) 7 NWLR Part 871 page 1 at pages 13-14 paragraphs F-A It was further argued by learned Counsel for the 1st and 2nd Respondents that the proviso to Section 144(2) of the Act cannot avail the Appellant simply because I.N.E.C was made a Respondent to the petition or that the proviso was not part of the previous enactments considered by the Courts in the afore- cited cases. He contended further that in the petition under I consideration, I.N.E.C, Resident Electoral Commissioner Oyo State, Electoral Officer for Ogbomosho South Local Government and Returning Officer Ogbomosho South Constituency were respectively made 3rd, 4th, 5th, and 6th Respondents. It was not pleaded in the length and breadth of the petition that the presiding officers, and other electoral officers of the affected polling units where electoral malpractices, rigging and inflation of actual votes scored were alleged to have taken place are agents of the 3rd Respondents (I.N.E.C). He submitted that this omission is fatal to the petition in the absence of express joinder of the said presiding officers and other electoral officials.
Learned Counsel urged the Court that the proviso to Section 144(2) of the Electoral Act 2006 does not avail the Appellants. He finally submitted that the defective paragraph 13 of the petition is the pivot of the petition. The petition has been rendered incompetent and thereby robs the court the jurisdiction to entertain same. He urged the Court to resolve the issue against the Appellants.
Learned Counsel for the 3rd-6th Respondents in reply to this issue submitted that there was no pleading in the petition indicating that those alleged to be involved in the election malpractices did so as agents of the Commission. He posited further that a person who perpetrated a criminal act could not be said to be acting as agent of the Commission because he would be acting outside the scope of his employment and that the Commission would not be vicariously liable even in civil matters. He urged the Court to resolve issue one against the Appellants on the ground that paragraph 13 of the petition is incompetent for non-joinder of the alleged perpetrators.
The relevant provision under the Electoral Act 2006 by which learned Counsel for the Appellants based his argument is Section 144(2) of the Act. The section provides thus:-
“(2) The person whose election is complained of is in this Act referred to as the Respondent but if the Petitioner complains of the conduct of an Electoral Officer or any other person who took part in the conduct of the election such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party provided that where such officer or person is shown to have acted as an agent of the Commission his non joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”
This section is a clear departure from the provisions of the Electoral Act 2002. The proviso under Section 144(2) of the Electoral Act 2006 was never in the Electoral Act 2002. The cases cited by the learned tribunal and the Respondents Counsel were cases decided under the 2002 Act. These cases could not be relevant. I.N.E.C is the umbrella body, which conducted the election and has been made a party, to be specific the 3rd Respondent in the instant case. We do not see any reason why all the officials or ad hoc staff of I.N.E.C should be joined as parties to the petition. The proviso to the 2006 Act tempers the severity or strictness of subsection 2 of section 144 by saving the petition where the Commission itself is made a party.
In the instant appeal, I.N.E.C, the Resident Electoral Commissioner for Oyo State, the Electoral Officer for Ogbomosho South Local Government and the Returning Officer for Ogbomosho South Constituency are parties to the petition. It only remains the Presiding Officers in the units and wards of Ogbomosho South Constituency that have not been joined. The non-joinder; of these staffs to the election petition will not have any adverse effect on the petition. The petition subsists notwithstanding the non-joinder of the electoral officials whose conducts are complained of or impugned since the proviso holds the commission responsible for the conduct of its agents.
‘It is therefore unnecessary to join a presiding officer or agent for carrying out the directive of the commission. See OBASANJO VS. YUSUF (2004) 9 NWLR Part 877 at pages- 144-145 and I.N.E.C VS. ACTION CONGRESS (2009) 2 NWLR Part 1126 page 524 at pages 620-621.
If the proviso holds the Commission responsible for the conduct of its agent, it follows that it has to defend the action. The word “agent” has been defined in the 7th edition of the Blacks Law Dictionary as:
“One who is authorized to act for or in place of another…”
It is therefore not in doubt that the Presiding Officer, Returning Officer are all agents of I.N.E.C. The proviso of Section 144(2) does not make it mandatory that Electoral Officers such as Presiding Officer must be joined once the Commission is already a party. This is why the word PROVIDED is included in the section.
The lower tribunal was wrong to have used the interpretation of the previous provisions in previous enactment to decide and interprete the present provisions of Section 144(2) of the Electoral Act 2006.
The main object of interpretation of a statute is to discover the intention of the law maker which is deducible from the language used.
A court has a duty to interprete a statute or provision thereof by giving it plain, ordinary and literal meaning except where such an interpretation will lead to manifest absurdity. In the instant case, the provision of section 144(2) of the Electoral Act 2006 is clear and unambiguous and therefore does not admit of any constructive meaning. See ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR Part 1120 page 1 at 94 paragraphs E-G; see also national ASSEMBLY VS. PRESIDENT FEDERAL REPUBLIC OF NIGERA (2003) 9 N.W.LR Part 824 at 104 and RAY vs. MADUABU (2006) ALL F.W.LR Part 310 at 163 reported as I.N.E.C VS. RAY (2004) 14 NWLR PART 892 AT 92. Issue one is hereby resolved in favour of the Appellants.
Issue Two
Whether, the Appellants have proved the allegation of malpractices or shown by any credible evidence that the election of the 1st Respondent ought to have been nullified and invalidated.
Learned Counsel, for the Appellant submitted that a careful reading of the petition particularly paragraphs 5-13 of the petition showed that there was no criminal allegations made against the Commission. Rather what was alleged against the Commission and its agents were negligence and dereliction of duty which were in the realm of non-compliance with the 2006 Electoral Act. Learned Counsel submitted that it was wrong of the election tribunal to have struck out or discountenanced paragraph 13 of the petition on the ground of non-joinder of the Electoral, presiding or Returning Officers of the entire units in Ogbomosho South Constituency. He argued that the Appellants and their witnesses testified before the lower tribunal wherein they adopted their statements on oath and were duly cross examined. 1st and 2nd Respondents witnesses in their statements on oath claimed to be agents who signed result sheets but under cross-examination denied signing the results form.
Learned Counsel for the Appellants submitted that Respondents witnesses gave contradictory evidence to their deposition on oath and not only that, their signatures on their statement on oath is either not on exhibit PE1-1″10 or the signature on the form is not that of the 1st and 2nd Respondents witnesses, as their party won the election. He submitted that the tribunal had found as a fact that there were violence and malpractices and that what should have been done was to have nullified the election. He referred to the case of SWEAN VS. DZUNGWE (1966) NWLR page 297 at 304. That there was no nexus of the 1st Respondent with the perpetrators of the violence is no basis for the refusal to nullify the election result of Ogbomosho South Constituency. Learned Counsel for the Appellants urged the Court to nullify the election of the 1st respondent since the lower Tribunal already found that there was violence and intimidation upon which there is no appeal or cross-appeal. He relied on BUHARI VS. OBASAN3O (2005) ALL F.W.L.R Part 258 page 1604 at 1718. Learned Counsel urged the Court to resolve issue two in favour of the Appellants.
Learned Counsel for the 1st and 2nd Respondents submitted that the Appellants averments in the pleadings do not constitute evidence and therefore cannot be construed as such. It must be proved by credible evidence otherwise it will be regarded as abandoned. He referred to the cases of UDE VS. OSUJI (1990) 5 NWLR Part 151 page 48 at 510 and EKUNDAYO VS. OYAGUN (1994) 4 NWLR Part 598 page 207. He submitted that the findings of the trial tribunal cannot be faulted in the absence of credible evidence and particularly when the presiding officers and other electoral officials whose conduct is subject of complaint are not joined so as to be given the opportunity to defend themselves as mandated by virtue of Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Learned Counsel urged the Court to resolve the issue against the Appellants.
Learned Counsel for the 3rd-6th Respondents submitted that the Appellants case lacks any substance as it is devoid of the ingredients needed to secure a favourable judgment.
According to learned Counsel, from the evidence of the Appellants and their witnesses, none of them said anything about the 1st Respondent nor did anyone link him with any of the acts complained of. See OPIA VS. IBRU (1992) 3 NWLR Part 231 at 658 and WALI VS. BAFARAWA (2004) 16 NWLR Part 898 at page 1. The witnesses except P.W 8 did not know any of the perpetrators neither could they identify them. They only said they were thugs or they were members of N.R.T.W. The persons alleged to have committed the acts are not parties to the suit. Since there is nothing before the tribunal to nullify the election, learned Counsel for the 3rd-6th Respondents urged the Court to resolve the issue against the Appellants and dismiss the appeal.
It is settled law that the reliefs for the nullification of an election on the basis of electoral malpractices should only be acceded to if the Respondent is established to have personally committed the offences or authorized the Commission of same by his agents. Seethe cases OYEGUN VS. IGBINEDION (1992) 2 NWLR Part 226 at 747; QPIA VS. IBRU (1992) 3 N.W.L.R. Part 231 page 658 at 694; WALI VS. BAFARAWA (2004) 16 N.W.LR Part 898 at page 1 and BUHARI VS. OBASANJO (2005) 13 NWLR Part 941 at page 1.
The Tribunal found from the pleadings of the Appellants that the petition was founded on the Commission of electoral offences and demanded as decided by the Supreme Court in the case of OYEGUN VS. IGBINEDION (supra) and BUHARI VS. OBASANJO (supra) proof of:
(i) The Commission of the alleged electoral offences beyond reasonable doubt
(ii) That the alleged offences were committed personally by the 1st Respondent or that 1st Respondent aided or abetted the Commission of the offences.
(iii) That persons other than the 1st Respondent’s who perpetrated the electoral offences were 1st Respondents agents or had been authorized by him
(iv) That the electoral offences are not only substantial but had further substantially affected the outcome of the election.
In applying the evidence of the parties to the yardsticks stated above, the tribunal found that the Appellants have neither established that 1st Respondent personally committed the offences nor that the P.D.P thugs nor N.U.R.T.W thugs named by the Appellants as having committed the offences were authorized by the 1st Respondent or had committed the offences with his knowledge or consent.
The tribunal at page 270 lines 15-20 of the record of proceedings had this to say in its findings:
“‘From the foregoing, it’s very clear that there are no pleadings to support the evidence giving by the Petitioners witnesses and since evidence given on facts not pleaded go to no issue, the petition can therefore not be said to have been proved and fails accordingly. See ONWUDINJO VS. DIMOBI . (2006)’l N.W.LR Part 961 page 318 at 324”
It is necessary to examine the state of the pleadings and evidence led in respect thereof. In paragraph 13 of the petition the Appellants averred that the election in several wards was marred by various acts of violence. In paragraph 13 (i) of the petition he averred thus:
“13 – Your Petitioner state that the grounds on which the Petitioner rely for bringing this petition are:
(i) Rigging of election results by various devices like inflating the actual figures scored by the 1st-6th Respondents
PARTICULARS ARE AS FOLLOWS:
“(ai) On the 14th April 2007 at the election to the Oyo State House of Assembly at Akata ward 01, Alapata ward 02, Arowomole ward 03, Ibapon ward 04, Ijeru ii ward 05, Ijeru ii ward 06, Ilogbo ward 07, Isoko ward 08, Legbedu ward 09 and Oke ola farm settlement ward 10 respectively the election there were marred with violence, rigging, snatching of ballot boxes, multiple voting, falsification of results e.t.c. The Petitioner shall rely on video tape of these incidences at the trial”
The 1st & 2nd Respondents denied these allegations in paragraph 8 of their reply at page 97 of the record of proceedings and averred thus:
“(8) The 1st & 2nd Respondents deny paragraph 13 (i) (ai), (aii), (A1),(ii), (iii), B(i), (ii), (ii), D(i), E(i), (ii), F(i) (ii), G(i), (ii), (Hi), H(i) (b), (c), (d), (e), (f), (g) of the petition and in answer states that by there was no rigging or inflation of figures scored by the 1st-6th Respondents as the election was free and fair
PARTICULAR
(ai) On the 14th of April 2007, the election to the Oyo State House of Assembly in all the wards of Ogbomoso South Local Government particularly at Akata ward 01, Alapata ward 02, Arowomole ward 03, Ibapon ward 04, Ijeru 1 ward 05, Ijeru 2 ward 06, Ilogbo wardO7, Isokp ward 08, Lagbedu ward 09 and Oke-ola farm settlement ward 10 respectively was free and fair, there was no violence, rigging, snatching of ballot boxes, multiple voting or falsification of results e.t.c.
(aii) There was no irregularities throughout the conduct of the election in general and in particular the election was conducted as follows:…”
It is certainly clear from the state of the pleadings that the onus was on the Appellants to prove beyond reasonable doubt not only that there were acts of violence that marred the outcome of the election on 14th April 2007 but also that the 1st Respondent was directly linked to the acts of violence or that he authorized them. The Appellants allegations were not supported by his evidence and that of his witnesses which they adopted at the trial on the printed record.
A perusal of the pleadings in support of the petition clearly shows that the Appellants allegations of falsification of results non-accreditation of eligible voters, late arrival of electoral officials, thuggery, intimidation of voters, multiple voting, over voting, snatching of ballot boxes are criminal in nature. The Petitioners or the Appellants who assert the position must prove the allegation beyond reasonable doubt. See NWOBODO VS. ONOH (1984) 1 S.C.N.L.R at page 1.
In the instant case, the video tape pleaded to show violence, rigging etc was not tendered. Appellant and his witnesses have not proved allegation of falsification of result by producing and placing before the tribunal two sets of results showing which is genuine and which is falsified. See KALU VS UZO (2006) 8 NWLR Part 603 at 444 and SABIYA VS. TUKUR (1983) N.S.C.C. AT 559. It is the law that unproved pleadings are deemed abandoned and any evidence which is at variance with one’s pleadings goes to no issue. See FAYEMI VS. ONI (2009) 7 NWLR Part 1140 page 223 at 255 paragraph A, N.E.P.A VS. EDEGBERO (2000) 14 NWLR Part 688 at 615 and N.E.C.O VS. ACTION CONGRESS (2009) 2 NWLR Part 1126 at 524 particularly at 604. Appellant failed to plead and prove by credible evidence, the particulars of the inflated votes and show that if the inflated figures were deducted from the votes credited to their opponent, the result will change in their favour. See the case of ANOZIE VS. OBICHERE (2006) 8 NWLR Part 981 at 140.
Failure of the Petitioners to produce before the tribunal the alleged snatched and stuffed ballot boxes with papers contained therein to prove the allegation of snatching and stuffing of ballot boxes with ballot papers is fatal to the petition. See HARUNA VS. MODIBBO (2004) 16 NWLR Part 900 at 487.
Appellants pleaded multiple voting in the petition. The evidence of the Appellant and his witnesses on record was devoid of any evidence of multiple voting as no document in the form of ballot papers were tendered to show that one person thumb printed more than one ballot paper. The lower Tribunal at pages 272-273 of the record found as follows:
“The absence of any concrete and credible evidence of over voting as there is nothing on the face of the exhibits PE1 (i-x) form, EC8A(i) (results at polling units); PE2 (i-x) form, EC8B(i) (results from polling units collated at Registration/ward level) and PE3 – form ¢ EC8(i), declaration of result at Constituency level), to show any other voting. Over voting is said to occur where the votes cast at an election in any Constituency or polling station exceeds the number of registered voters in that Constituency or polling station and it is only where over voting occurs that the Independent National Electoral Commission (I.N.E.C) or the Tribunal can void or nullify the election in that Constituency or polling station. See the cases of SERIKI VS. ARE (1999) 3 NWLR Part 595 at 480; UGWU VS. MBA (1999) 3 N.W.LR Part 595 page 400 at 409 and AWUSE VS. ODILI (2004) ALL F.W.L.R Part 261 at 248 or (2004) 8 NWLR Part 876 at 481″
The findings are unassailable and beyond reproach Appellants alleged that accreditation did not take place before the voters cast their votes. Accreditation or lack of it is proved by the production of the voters registers used at the election before the Court to enable the Tribunal see whether the corresponding names of these who voted were marked on the registers as required by Section 50(2) of the Electoral Act (2006). See the case of BUHARI VS. OBASANJO (2005) 13 NWLR Part 898 at 126. The result forms tendered by the Appellants contradicted their allegations that no counting and recording of votes took place in the polling stations and collation centres. Appellants tendered these results form as pleaded and relied on same. It is too late in the day for the Appellants to turn round to discredit or disown the documents tendered by them as those election results declared by Independent National Electoral Commission (I.N.E.C) enjoy a rebuttable presumption of genuiness Appellants failed woefully to rebut the presumption enjoyed by these result forms from Independent National Electoral Commission (I.N.E.C) see HASIDU VS. GO3E (2003) 15 NWLR Part 843 at 352.
Appellants in his evidence at page 18 of the record paragraph 11 averred:
‘That the elections were brought to an abrupt end as a result attack on voters by the political thugs of 1st & 2nd Respondents.”
There is no direct evidence linking the 1st Respondent with the alleged attack, malpractices and irregularities. There is no nexus between the 1st Respondent and the perpetrators of the alleged electoral offences. Appellants and their witnesses said the perpetrators were thugs or members of N.U.R.T.W. There is no evidence that the offences were authorized by 1st Respondent or committed, with his consent. A candidate at an election cannot have his election nullified on the ground of corrupt practices or other irregularity committed in the process of the election unless it can be proved that such a candidate either expressly or by necessary implications authorized the illegality or corrupt practices. See OPIA VS. IBRU (1992) 3 NWLR Part 231 at 658; OYEGUN VS. IGBINFDTON (1992) 2 NWLR Part 226 at 747; AYUA VS. ADASU (1992) 3 NWLR Part 231 at 598 and WALI VS. BAFURAWA (2004) 16 NWLR Part 898 page 1 at 45. Appellants have failed to prove that the alleged thugs were authorized by the 1st Respondent.
There is equally nothing in the entire evidence of the Appellant and his witnesses to show that the alleged non compliance or irregularities as well as the malpractices substantially affected the outcome of the election. Section 146 (1) of the Electoral Act 2006 says:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this 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 noncompliance did not affect substantially the result of the election.”
See also the cases of OPUTEH VS. ISHIPA (1993) 3 N.W.LR Part 279 at 34; SOFUNKE VS. ODEBUNMI (1960) S.CN.LR at 414 and EZIKE V. EZEUGWU (1992) 4 NWLR Part 236. The result of an election would be substantially affected by the failure to hold a poll in some units or by any other form of non-compliance or malpractices if the total number of votes affected in the areas where election did not hold or where the malpractice occurred exceeds the difference in votes by which the winner of the election won in the election.
Again the alleged irregularities and malpractices are election offences under Part viii Sections 124-139 of the electoral Act 2006 and must be proved beyond reasonable doubt. See Section 138 of the Evidence Act: See also the cases of ANOZIE VS. OBICHERE (2006) 8 N.W.LR Part 981 at 140; AYOGU VS. NNAMANI (2006) 8 NWLR Part 981 at 160; NWOBODO VS. ONOH (1984) 1 S.CN.LR at page ANAZODO VS. AUDU (1994) 4 NWLR Part 600 at 530 and YUSUF VS. OBASANJO (2005) 18 N.W.LR Part 956 page 96 at 194.
The lower Tribunal has performed its primary duty of evaluating and ascribing probative value to the evidence before it and arrived at the conclusion that the Appellants have failed to prove the petition even if all the averments therein were competent and countenanced. This Court cannot but agree with its findings because they are not and is hereby resolved against the Appellants. Since the case has been decided, on its merit and Appellants have failed woefully to prove the petition, the appeal is accordingly dismissed. The judgment of the Governorship and Legislative Houses Election Tribunal sitting in Ibadan Oyo State in the consolidated petitions no. LH/EPT/IB/03/07 and LH/EPT/IB/05/07 delivered on the 29th of January 2008 is hereby affirmed. Cost of N30,000.00 is hereby awarded in favour of the 1st Respondent.
KUDIRAT MOTONMORI OLATOKUNBO KFKPRE-EKUN, J.C.A. I have been privileged to read in draft the judgment of my learned MODUPE FASANMI, JCA just delivered. His Lordships has exhaustively dealt with all the issues in contention in this appeal. I agree with the reasoning and conclusion therein that the appeal lacks merit and should be dismissed. I accordingly dismiss it.
I affirm the judgment of the Governorship and Legislative Houses Election Tribunal, sitting in Ibadan in the consolidated petitions No.LH/EPT/IB/03/07 and LH/EPJ/1B/05/07 delivered on 29th January, 2008. I award costs of N30,000 in favour of the 1st Respondent.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother M. FASANMI, J.C.A.
The issues raised in the appeal have been comprehensively reviewed and resolved. I adopt the reasoning and conclusion arrived at as mine in holding that the Appeal lacks merit, I also dismiss same. The Judgment of the Tribunal sitting in Ibadan in the consolidated petition No.LH/EPT/IB/03/07 and LH/EPT/IB/O5/07 delivered on 29/1/08 is also affirmed by me. I abide by the order made as to costs.
Appearances
Appellants’ Counsel absentFor Appellant
AND
1st – 2nd Respondents Counsel absent
Babatunde Akinola Esq, for the 3rd – 6th RespondentsFor Respondent
