NZE JEREMIAH OSIGWELEM v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2010)LCN/3932(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of July, 2010
CA/OW/NA/EPT/96/2009
RATIO
FORMULATION OF ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST BE DISTILLED FROM THE GROUNDS OF APPEAL
The law is trite that issues for determination must be distilled from the grounds of appeal, which in turn must be predicated upon the ratio decidendi of the decision of the court appealed against see, Honika sawmill (Nig,) Ltd vs. Hoff (1994) 2 NWLR (pt 326) 252 Briggs vs, chief Lands officer, Rivers state of Nigeria (2005) All FWLR (pt. 268) 1526. (supra) at 1645. In the case of Ugo vs, Obiekwe (1998) 1 NWLR (Pt 99) 566 it was held that: “Issues formulated for determination in a brief must arise from and relate to the grounds of appeal filed and no more. Conversely any issue formulated which has no ground of appeal to support it is worse than useless. PER MOJEED ADEKUNLE OWOADE, J.C.A.
LOCUS STANDI: EFFECT OF LACK OF LOCUS STANDI IN A SUIT ON THE PERSON WHO INSTITUTES SUCH AN ACTION TO CLAIM A RELIEF, WHICH ON THE FACTS OF THE CASE IS ENFORCEABLE TO ANOTHER PERSON
Unfortunately, the said second relief did not state that the petitioner/appellant or indeed anyone at all who had the majority of lawful votes should be declared winner. In these circumstances, the lower tribunal was right to have relied on the decision of the Court of Appeal in the case of Bewaji vs. Obasanjo (supra) at pages 573 – 574, per Omoleye, JCA, to the effect that: “It is trite law that where a person institutes an action to claim a relief, which on the facts of the case is enforceable to another person, then the former, cannot succeed because of lack of locus standi. For it is the person in whom is vested the aggregate of the enforceable rights in a cause that has the standing to sue. PER MOJEED ADEKUNLE OWOADE, J.C.A.
PROOF OF AUTHENTICITY OF A DOCUMENT: CONSEQUENCE OF THE INABILITY OF A PARTY TO CALL THE MAKER OF A DOCUMENT OR SOMEONE WHO HAS PERSONAL KNOWLEDGE OF THE CONTENT OF THE DOCUMENT IN PROVING THE AUTHENTICITY OF SUCH DOCUMENT
The presumption of authenticity of a document including Newspaper under section 116 of the Evidence Act does not preclude the proof of the content of such a document. The content of a document can only be proved by its maker and/or a person who has personal knowledge of the content of such a document. The inability of a party to call the maker of a document or someone who has personal knowledge of the content of the document as in the instant case renders the content of that document to be a specie of documentary hearsay evidence which is generally inadmissible. PER MOJEED ADEKUNLE OWOADE, J.C.A.
PROOF OF EVIDENCE: STANDARD OF PROOF REQUIRED OF THE APPELLANT IN PROVING ITS CASE EVEN WHERE WHERE NO PLEADINGS HAVE BEEN FILED BY THE RESPONDENTS ; WHETHER PLEADINGS OF THE APPELLANT DO CONSTITUTE EVIDENCE
It is a bounding duty of the appellant to prove his case, here on a balance of probabilities even where no pleadings were filed and no evidence adduced by the respondents. Pleadings of the appellant do not constitute evidence, therefore every averment in the pleading must be proved by credible evidence. See Adighije vs. Nwaogu (2009) 2 NWLR (Pt 1125) 237. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
NZE JEREMIAH OSIGWELEM Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTY
3. CHIEF (MRS.) JULIET AKANO Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the Governorship and Legislative Houses Election Petition Tribunal for Imo State sitting at Owerri delivered on the 22nd day of July 2009 in Petition No EPT/NA/IM/07/07.
On 21st day of April 2007, an election was conducted by Independent National Electoral Commission INEC (hereinafter called the 1st Respondent) for membership of the Federal House of Representatives for Nkwere/Isu/Njaba/Nwangele Federal Constituency of Imo State wherein Chief (Mrs.) Juliet Akano (3rd Respondent) who was the candidate of Peoples Democratic Party – PDP (2nd Respondent) was declared winner and returned as the successful candidate.
Dissatisfied with the result of that election, Nze Jeremiah Osigwelem (petitioner/appellant) who also contested that election on the platform of the All Nigerian Peoples Party (ANPP) filed a petition to challenge the return of the 3rd respondent as the winner of the election on the ground that the 3rd respondent, was at the time of the election not qualified to contest the election.
The Election Petition Tribunal sitting at Owerri on the 20th day of August, 2007 consequent on a preliminary objection dismissed the petitioners/appellant’s petition. The petitioner, not satisfied with the said Ruling appealed to the Court of Appeal (Port Harcourt) Division.
The Court of Appeal in a considered judgment delivered on the 31st of January, 2008 held inter alia that the Ruling of the lower tribunal be set aside, the petition was sent back to a differently constituted tribunal for re-trial on the merit. Following the judgment of the Court of Appeal, Port Harcourt Division a new trial tribunal was constituted. The retrial commenced on the 18th of March, 2009 and was further adjourned for hearing of the applications for extension of time filed by the respective respondents before the previous tribunal.
The retrial tribunal in its Ruling delivered on the 6th day of April, 2009 refused the 1st respondent’s application for extension of time to file their Reply and to deem the Reply as being properly filed and served. The 1st respondent did not therefore have any Reply to the petition and the appellant’s petition was determined on the basis of the pleadings of the petitioner/appellant and his evidence at the trial. At the trial, the petitioner/appellant was the only witness, he testified for himself and tendered three (3) exhibits to wit:
(i) Exhibits A – A3 – Announcer Express Newspaper of 8 – 10th January, 2007,
(ii) Exhibit B – His Voters Card.
(iii) Exhibit C – His Party Card,
Also, at the trial the petitioner/appellant applied to tender the following vital documents in evidence.
(i) Form for submission of names of candidates.
(ii) Affidavit in support of personal particulars of persons seeking election.
(iii) And letter of substitution of PDP candidate for Nkwerre/Isu/Federal Constituency.
The application was objected to by the respondents and the tribunal in its Ruling rejected the documents and marked them rejected for failure of the petitioner/appellant to list or annex them in his petition.
The petitioner/appellant thereafter adopted his written deposition and was cross-examined by the counsel to the respondents.
In their considered judgment delivered on the 22nd day of July, 2009, the tribunal dismissed the petition on two grounds.
(i) That the petitioner/appellant has no locus standi to present the petition.
(ii) That the petitioner/appellant did not prove his petition.
The petitioner/appellant aggrieved by the decision filed a Notice of Appeal containing four (4) grounds of appeal before this court on 28nd July, 2009. The relevant briefs of argument for this appeal are:
(1) Appellant’s Brief of Argument dated 7/9/09 and filed on 10/9/09 – settled by A. O Mogboh Jnr.
(2) 1st Respondent’s Brief of Argument dated 19/9/09 and filed on 23/9/09 – settled by Olachi Nwugo Esq.
(3 2nd – 3rd Respondents’ Notice of Preliminary Objection and Brief of Argument dated 19/09/09 and filed on 23/09/09 – settled by Livy Uzoukwu, SAN.
(4) List of Additional Authorities of the 2nd and 3rd Respondents dated and filed 8/6/2010 – settled by Livy Uzoukwu, SAN.
(5) Appellant’s Reply to 2nd and 3rd Respondents’ Brief of Argument dated 16/12/09 and filed on 16/12/09 – settled by A. O. Mogboh Jnr.
The appellant nominated the following issues for determination:
“1. Whether the tribunal in raising the issue of locus standi was not revisiting earlier decision reached by the Court of Appeal in CA/PH/EPT/369/2007 – Nze Jeremiah Osigwelem vs. INEC & 2 Ors.
2. Whether it is the duty of the petitioner to call the publishers of the Newspaper when the law presumes its authenticity.
3. Whether evidence of the petitioner witness was properly evaluated by the tribunal.”
Learned counsel for the 1st respondent raised the following issues for determination:
“1. Whether the decision of the retrial tribunal below that the petitioner had no locus standi to institute the petition ought to be set aside.
2. Whether the evidence led by the petitioner witness was properly evaluated by the retrial tribunal.”
The 2nd – 3rd respondents filed Notice of Preliminary Objection challenging the competence of the said Notice and Grounds of Appeal and thereafter nominated the following issues for determination of the appeal on its merit.
“(i) Whether the tribunal was right when it held that the appellant lacked the locus standi to maintain his petition? (Grounds 1 and 2 of Appeal)
(ii) Whether the tribunal properly evaluated the evidence of the appellant? (Grounds 3 and 4 of Appeal).”
The Notice of Preliminary Objection of the 2nd – 3rd respondents is predicated on three grounds.
Ground 1 of the Objection
The Notice of Appeal is in breach of the mandatory provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2007.
In support of this ground of objection, learned senior counsel for the 2nd- 3rd respondents submitted that the appellant’s Notice of Appeal is in breach of the provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2007 in that …. the addresses of all parties directly affected by the appeal were not stated. That, by this non-compliance the Notice of Appeal is defective and incompetent and should be struck out.
In reply, appellant’s counsel submitted that the non-inclusion of the addresses of the respondents complained of by the 2nd – 3rd respondents is a mere irregularity. That the 2nd – 3rd respondents have not lost anything by their addresses not being inserted or stated in the notice of appeal more because the 2nd – 3rd respondents have filed their Replies and have taken steps to the briefs.
In the instant case, the learned senior counsel for the 2nd – 3rd respondents was right to have observed that the appellant did not strictly comply with the provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2007. Indeed the portion of addresses on page 313 of the printed record does not contain the address of any of the respondents.
However, in the circumstances of this case, this lapse by the appellant’s counsel could be treated as a mere irregularity. This is because, as pointed out by Acholonu, JSC, P.B. (Nig.) Plc. v. O.K. Contact Point Ltd (2001) 1 NWLR (Pt 712) 80 at 90.
“The beauty or what I might describe as the romance of the law is that the courts have now striven to ensure that the best way to obtain fair hearing and transparent justice is to allow the parties to canvass their cases by method that eschew technicality ….I have always believed that the court should not sacrifice the purity of justice in the altar of technical subterfuge which seeks to emasculate the fairness of a trial in all its ramification by slavish obedience of the rules of court which are no more than guidelines to help the court in judicial administration.”
Also, in the case of clev Josh Ltd. & 2 ors. vs. Elder Olaniran Ifeoluwa Tokimi & 3 Ors. (2008) 13 NWLR (Pt 1104) 422, at 440 – 441 Gumet, JCA, who delivered the lead judgment of the court of Appeal (Benin Division) followed the decision of the supreme court in the case of Surakatu vs. Nigeria Housing Development Society Ltd & Anor (1981)4 SC 26 to hold that a wrongly headed notice of appeal may be allowed in order to do substantive justice by hearing the appeal on the merits.
Also, in Nwani v. Buhari (2005) All FWLR (Pt 281) 1803. a notice of appeal that did not fully comply with Order 3 Rule 2 (1) of the Court of Appeal Rules, 2002 in that the names of all the parties directly affected by the appeal and their addresses were not contained the Notice of Appeal, as only the names and addresses of the respondents were contained therein and address of the appellant was not included was held to be a mere irregularity that can be condoned. See also, Ojo vs INEC (2008) 13 NWLR (Pt 1105) 577.
In view of the above decided authorities, I hold that the failure of the appellant to provide addresses for service of the respondents in the Notice of Appeal is a mere irregularity which has not prejudiced the respondents in any way. Ground 1 of the 2nd – 3rd Respondents’ Notice of Preliminary Objection is accordingly overruled.
Ground 2 of the Objection
Appellant’s issue 1 was neither distilled from any Ground or any valid Ground of Appeal nor predicated on any decision or issue that was determined by the tribunal Learned senior counsel for the 2nd – 3rd respondents referred to Appellant’s issue No.1 and submitted that it is not correct as claimed in the said issue that it was the tribunal that raised the issue of locus standi. Learned senior counsel said that on the contrary, the issue of locus standi was raised by the 2nd – 3rd respondents without any reply from the appellant.
That the tribunal nevertheless examined the issue and ruled upon it. And that the decision of the tribunal on the issue of locus standi was not covered by the issue as framed by the appellant.
Learned senior counsel for the 2nd – 3rd respondents submitted that the appellant’s said issue, was never canvassed by the appellant before the tribunal. In other words, said counsel, the question whether the issue of locus standi raised by the 2nd – 3rd respondents would amount to the tribunal revisiting an alleged earlier decision reached by the Court of Appeal in CA/PH/EPT/369/2007 was not submitted to the tribunal for adjudication and expectedly, no decision was rendered on the issue, The issue, said counsel is therefore a new one and the appellant having not obtained leave before raising same, the issue is incompelent.
Learned senior counsel for the appellant relied on the cases of Global Transport Oceanico S. A. & Anor. vs. Free Enterprises Nig. Ltd. (2001) FWLR (pt 40) 1206. (2001) 5 NSQLR 487 at 500, Omotola vs. The State (2009) All FWLR 1490 (Pt 464) at 1581 and submitted further that the said issue cannot be distilled from any of the appellant’s 4 Grounds of Appeal.
Also, that the appellant’s Grounds 1 and 2 of Appeal which are the only grounds relating to the issue of locus standi, have no nexus with the appellants said issue No.1 counsel submitted that it is settled law that there cannot be a competent issue distilled from an incompetent or a non-existent ground of appeal. On this, counsel referred to the cases of Reider-Jacks v. INEC (2009) All FWLR (Pt.464) 1636 at 1645 Ugo vs. Obiekwe (1989)1 NWLR (Pt. 99) 566 On Ground 2 of the objection, learned senior counsel for the 2nd – 3rd respondents urged us to hold that appellant’s issue No. 1 is incompetent and to strike out same.
Learned counsel for the appellant on the other hand submitted that Appellant’s issue No. 1 was adequately covered by Grounds 1 and 2 in the Notice of Appeal. That the appellant distilled the issues as set out in the particulars of errors as highlighted, He relied on the cases of Ekanem vs. A I.G P. (2008) 5 NWLR (Pt. 1079) 97 Anode vs. Mmeka (2008) 10 NWLR (Pt. 1094) 1 and Dada vs Dosunmu (2006) 18 NV/LR (Pt 1010) 134 and urged us to dismiss the 2nd – 3rd respondents’ Ground 2 of the objection on the second ground of objection, I have carefully gone through the appellants grounds 1 and 2 of the Notice of Appeal and the particulars therein. I could not find any nexus whatsoever in those grounds and their particulars and the content of appellant’s issue No. 1 to wit:
“1. Whether the Tribunal in raising the issue of locus standi was not revisiting earlier decision reached by the Court of Appeal in CA/PH/EPT/369/2002 Nze Jeremiah Osigwelem vs. INEC.”
In the circumstance, the learned senior counsel for the 2nd – 3rd respondents was right to say that appellant’s Issue No. 1 was not distilled from any of the grounds of appeal and it is liable to be struck out.
The law is trite that issues for determination must be distilled from the grounds of appeal, which in turn must be predicated upon the ratio decidendi of the decision of the court appealed against see, Honika sawmill (Nig,) Ltd vs. Hoff (1994) 2 NWLR (pt 326) 252, Briggs vs. Chief Lands officer, Rivers state of Nigeria (2005) All FWLR (pt. 268) 1526. (supra) at 1645.
In the case of Ugo vs, Obiekwe (1998) 1 NWLR (Pt 99) 566 it was held that:
“Issues formulated for determination in a brief must arise from and relate to the grounds of appeal filed and no more. Conversely any issue formulated which has no ground of appeal to support it is worse than useless.”
Ground 2 of the 2nd – 3rd respondents’ preliminary objection is upheld. Appellants issue No. 1 was not distilled from any competent ground of appeal. It is hereby struck out.
Ground 3 of the objection
That appellant’s grounds 1 and 2 of Appeal are incompetent. In support of this ground of objection, learned senior counsel for the 2nd – 3rd respondents submitted that the appellant failed to indicate the grounds from which he distilled his issues. But that, it does appear going by the tenor of his arguments under his three issues, that the appellant laboured in vain to argue his Grounds 1 and 2 of Appeal under the said incompetent issue No. 1 together with a new issue not predicted on any ground of appeal.
Counsel submitted that there is no relationship or nexus between appellant’s issue No. 1 and his Grounds 1 and 2 of appeal. That the two Grounds do not and could not have come within the ambit, scope or province of appellant’s issue No. 1. And that what this means is that no issue was distilled from appellant’s Grounds 1 and 2 of Appeal. They are deemed abandoned.
On this, learned senior counsel for the respondents relied on the case of Sarhuna v. Lagga (2002) 3 NWLR (Pt.754) P. 337 and urged us to strike out grounds 1 and 2 of the appellants Notice of Appeal for incompetence.
In reaction to the above, appellant’s counsel relied on the cases of Anode vs. Mmeka (2008) 10 NWLR (1094) 1 and Dada vs. Dosunmu (2006) 18 NWLR (pr 1010) 134 and submitted that there is no hard and fast rule that every ground of appeal must have an issue distilled from it, that indeed one can subsume all the grounds into one single issue, as the important aspect is that justice is done.
In the instant case, the learned senior counsel for the 2nd – 3rd respondents was right to say that the appellant eventually did not formulate any issues from Grounds 1 and 2 of the Notice of Appeal. But that in itself is not sufficient in this case to come to the conclusion that Appellant’s grounds 1 and 2 of the Notice of Appeal are deemed abandoned. This is because, even where no such issue was formulated by the appellant himself the two sets of respondents formulated issues on appellants Grounds 1 and 2 of the Notice of Appeal. It is therefore obvious that appellant’s grounds 1 and 2 cannot be treated as abandoned and ought to be considered in the interest of justice.
In the case of Anode vs Mmeka (2008) 10 NWLR (1094) 1 a 14, the Court of Appeal (per Saulawa, J0CA) held that:
“Although it is necessary for an appellant to relate the issues formulated for determination in a brief to the relevant grounds of appeal, failure to comply with the requirement may not always result in such issues being struck out for incompetence Accordingly, where in the opinion of the court, issues can be validly and conveniently be distilled from the ground of appeal, the issues will not be struck out”
Also in the case of Dada vs. Dosunmu (2006) 18 NWLR (pt 1010) 134 at 156 the Supreme Court (per Onnoghen, JSC) in stressing the need for our courts to do substantial justice stated:
“in such a situation the court can on its own take a close look at the grounds of appeal and issues formulated and in order to do substantial justice between the parties which is the preoccupation of the court, consider the said issues in its obligation to the parties under the constitution….. In certain appropriate cases, the courts can and in fact do formulate their own issues from the grounds of appeal when the issues formulated by the appellant are found to be either inadequate or grossly or fundamentally defective.”
From the above, Ground 3 of the preliminary objection of the 2nd – 3rd respondents is accordingly overruled.
The appeal shall be decided by an admixture of the issues formulated by the appellant and the two sets of respondents as follows:
“1. Whether the tribunal was right when it held that the appellant lacked the locus standi to maintain his petition.
2. Whether it is the duty of the petitioner to call the publishers of the Newspaper when the law presumes its authenticity.
3. Whether the Tribunal properly evaluated the evidence of the appellant.”
Henceforth in this appeal, the submissions of the appellant shall be considered on one side of the scale while those of the 1st respondent and the 2nd and 3rd respondents (that is the two sets of respondents) shall be considered together on the other side of the scale as that of the respondents. This is because the respondents share a common interest in this appeal and also for reasons of convenience.
On issue No. 1, learned counsel for the appellant submitted that the lower tribunal was in error to have held that the petitioner/appellant does not have locus standi to maintain his action for the reason that “it is the person who will have the benefit of being declared the winner should this petition succeed that has “locus standi” or the “legal capacity” to institute and maintain this petition.
This, according to appellant’s counsel is because the appellants locus standi or capacity to petition aggregated unto him by Section 145 (t) (a) of the Electoral Act, 2006, which also affected his civil right and obligation as a person.
Appellant’s counsel submitted that it is the aggregate of reliefs and not one relief in isolation that will determine the locus if one were to adhere to the interpretation and findings that it is the reliefs that determines locus standi of a petitioner. And, that it is obvious that the petitioner/appellant seeks more than one relief, but the tribunal based its findings on the supposition of one relief.
Learned counsel for the appellant relied on the case of Zimit vs. Mohammed (1993) 1 NWLR (Pt. 267) at 7 for the proposition that election petition cases are unique and sui generis, that parties are bound by the statute rather than the old common law doctrine of locus standi.
Appellant’s counsel further relied on the case of P.P.A v. Saraki (2007) 17 NWLR (Pt. 1064) at 453 and submitted that even if the appellant’s second relief of the petitioner/appellant “that the candidate who had the majority of lawful votes should be declared the winner” failed, the Tribunal should have made appropriate incidental orders with bearing on the main relief which is that the 3rd respondent who was declared winner was not duly nominated to contest the election Appellant’s counsel concluded on issue No, 1 that we should make appropriate consequential and incidental orders in arriving at the decision that the 3rd respondent was indeed not a candidate at the election of 21st April 2007 and ought not to have been returned by the 1st respondent.
In defending the position taken by the lower tribunal, that the appellant does not have locus standi to maintain the petition, the respondents more especially through the 2nd – 3rd respondents drew our attention to some aspects of the cross-examination of the appellant and the written address of the appellant before the tribunal where it was clearly admitted that the reliefs when granted will not be of any benefit to the petitioner and that as long as justice prevails, he (the appellant) does not stand to be a beneficiary personally as a litigating party.
Respondents’ counsel submitted that neither the case of Thomas v. Olufosoye (1985) 3 NWLR (Pt. 13) 523 nor the case of P.P.A vs Saraki (supra) supports the appellant’s contention that he possesses the necessary locus standi to maintain the petition.
This, according to the respondents is because in both cases, locus standi or legal interest which requires protection entitling a plaintiff to bring an action belongs to persons whose right have been or are in danger of being infringed. Respondents’ counsel submitted that they do not see how the principle of law enunciated in those cases strengthened the case of the appellant but that on the contrary, it provided justification for the decision of the tribunal Learned counsel for the respondents submitted further that the appellant was most uncharitable to the tribunal when he submitted that in considering whether the reliefs claimed by the appellant conferred any benefit to him, the Tribunal limited its determination only to relief 2. That, by so submitting, the appellant glossed over his answer under cross examination and the admission in his address before the Tribunal that he derives no personal benefits from the reliefs he claimed; that covered his two reliefs.
Also, said respondent’s counsel, it was convenient for the appellant to forget that his concession before the Tribunal was thus:
“In the instant petition, it is unusual and we concede as much that the reliefs when granted will not be of any direct benefit to the petitioner. Rather he wants as he has consistently stated and restated in cross-examination “for justice to prevail” and in so doing recognizes that when justice prevails he does not stand and indeed will not be a beneficiary personally as a litigating party.”
In the light of the above, respondents counsel urged that we resolve issue No. 1 in their favour.
In dealing with the question of locus standi, the lower Tribunal at pages 287 – 288 had this to say:
“It is not in dispute that the petitioner was the candidate of ANPP in the election being questioned and therefore prima facie has the locus standi under the Electoral Act to present this petition. However, can he maintain the petition, if he does not stand to benefit from the reliefs claimed? In Olorioade vs. Oyebi (1984)5 SC 1at 16, the Supreme Court, relying on its previous decision in Adesanya vs. president of the Federal Republic of Nigeria (1981)2 NCLR 373 held that a party prosecuting an action can only have locus standi where the reliefs claimed would confer some benefit on him. This decision was recently followed by the Court of Appeal in Bewaji vs Obasanjo (2009) 9 NWLR (Pt. 1093) 439 at 573 – 574
Applying the above decisions to the case before it, the lower Tribunal at pages 288 – 289 of the record said:
“By his own ipse-dixit while under cross-examination at the hearing of this petition, the petitioner admitted that he was not the candidate that had the majority of lawful votes in the said election, He was forthright by admitting also that he neither came 2nd nor 3rd nor 4th in the election but his interest is that justice should be done while the tribunal appreciates and indeed applauds his altruistic disposition, the position of the law which is binding on this tribunal and which it is enjoined to apply is that it is only the person who will benefit directly from the relief being claimed, and with particular reference to this petition, it is the person who will have the benefit of being declared, the winner should this petition succeed that has “locus standi” or the “legal capacity” to institute and maintain this petition and not the present petitioner whose only interest in presenting the petition is that justice be done ”
In deciding issue No. 1, one cannot but agree with the conclusion of the lower tribunal that the petitioner/appellant does not have the locus standi to maintain the petition. Indeed, from the onset, the appellant’s petition dated 18th May, 2007 and filed on 21st May, 2007 did not for once identify the personal interest of the petitioner in the suit culminating into an aggregate of enforceable rights in his favour.
The prayer in the said petition reads thus:
1. Your petitioner prays that it may be determined that the said Chief (Mrs.) Juliet Akano, 3rd respondent who was declared winner was void (sic) not being only nominated to contest the election as she was not nominated by her party, the 2nd respondent within the time stipulated in the Electoral Act, 2006
2. That the candidate who has the majority of lawful votes should be declared winner Now, and contrary to the submissions of the learned counsel for the appellant, it is only from the 2nd relief of the appellant in this case that one could discern any form of personal interest which could culminate into an aggregate of enforceable rights in favour of the petitioner/appellant.
Unfortunately, the said second relief did not state that the petitioner/appellant or indeed anyone at all who had the majority of lawful votes should be declared winner. In these circumstances, the lower tribunal was right to have relied on the decision of the Court of Appeal in the case of Bewaji vs. Obasanjo (supra) at pages 573 – 574, per Omoleye, JCA, to the effect that
“It is trite law that where a person institutes an action to claim a relief, which on the facts of the case is enforceable to another person, then the former, cannot succeed because of lack of locus standi. For it is the person in whom is vested the aggregate of the enforceable rights in a cause that has the standing to sue.”
Also, and as pointed out by the learned senior counsel for the respondents, the appellant by his own admission demonstrates clearly that he belongs to the class of those described as “professional litigants busy bodies, meddlesome interlopers and cranks who have no real stake or interest in the subject matter of litigation they are seeking to pursue”.
Bewaji vs. Obasanjo (supra) at page 540. issue No 1 is resolved against the Appellant Appellant’s issue No. 2 derives from Ground 3 of the Notice of Appeal and attacks the finding of the lower tribunal at page 294 of the record to wit:
“Although we do not agree with the submission that Exhibits A – A3 is inadmissible under section 116 of the Evidence Act ab-initio as argued by the 2nd – 3rd respondents since it is not a Government Gazette or Newspaper, it is difficult to place any reliance on that publication unless it could be proved that the information contained therein officially emanated from the respondents and was published with its authority. This the petitioner could have done by calling the publishers of the Newspaper.”
The gravamen of the appellant’s submissions on issue No. 2 is that since the Announcer Express Newspaper – Exhibits A – A3 was tendered without objection and since section 116 of the Evidence Act presumes the genuineness of every document purporting to be official gazette or Newspaper, the lower tribunal was in error to have held that the petitioner/appellant had a duty to call the publisher to prove its content. On this score, the learned counsel for the respondents in defending the position taken by the lower tribunal queried, how could the appellant establish that the information contained in Exhibits A – A3 officially emanated from the 1st respondent without calling the publishers?
The appellant, said respondents’ counsel relied on Exhibits A – A3 in proof of the fact that as at 20 December, 2007, the 2nd respondent had not submitted the name of any candidate for the said Federal constituency, Exhibits A – A3 is dated January 8 – 10, 2007 Learned senior counsel for the respondents then furnished us with the details of the cross examination of the petitioner/appellant on Exhibits A – A3 at page 206 of Vol 2 of the record as follows:
“Uzoukwu: Have Vou scrutinized Exhibit A?
PW1 : Yes.
Uzoukwu: Exhibit A represents news report on purported list of candidates.
PW1: It is a report the Newspaper carried from INEC’s office in Owerri
Uzoukwu: You will agree that the list in Exhibit A is not attributed to any INEC official
PW1: INEC official gave them.
Uzoukwu: Read it and tell us if there is the name of any INEC official there
PW1: There is none.”
On this learned counsel to the respondents submitted relying on the case of Jowoju vs. Gov. Kwara State (2005) 18 NWLR (Pt.957) 324 at 351 that Exhibits A-A3 is a news report or mere news item which has no evidential value.
Had the publishers being called, said respondents’ counsel, they would have among others, shown how according to the appellant, they “gathered” the contents of Exhibits A – A3 from the Notice Board of the 1st respondent. Respondents’ counsel submitted that the tribunal was right in declining to attach any weight to Exhibits A – A3 And that section 92 of the Evidence Act gives a court discretion on what weight to attach to any document received in evidence depending on the circumstances of each case on this, counsel relied on the case of Omin vs. Ejim (2003) 6 NWLR (Pt 817) 587 at 610.
In deciding issue No. 2, it is clear that the learned counsel for the appellant fell into the error of reading the provision of section 116 of the Evidence Act in isolation without considering other relevant sections of the Evidence Act, particularly section 91 of the Evidence Act which deals with the admissibility of documentary evidence.
The presumption of authenticity of a document including Newspaper under section 116 of the Evidence Act does not preclude the proof of the content of such a document. The content of a document can only be proved by its maker and/or a person who has personal knowledge of the content of such a document. The inability of a party to call the maker of a document or someone who has personal knowledge of the content of the document as in the instant case renders the content of that document to be a specie of documentary hearsay evidence which is generally inadmissible. The fact that Exhibits A – A3 in the instant case is documentary hearsay evidence is not cured by the fact that it was admitted without objection by the opposing parties.
The lower tribunal was right in declining to place any evidential value on Exhibits A – A3 dated 8th – 10th January, 2007 in proof of the petitioner’s/appellant’s assertion that as at 20th December, 2007, the 2nd respondent had not submitted the name of any candidate for the said Federal Constituency. Issue No. 2 is resolved against the Appellant.
On issue No. 3, learned counsel for the appellant submitted that the petitioner having stated that the 3rd respondent was not nominated 120 days before election being that her name did not appear in the Announcer Express Publication erred when it held in spite of the petitioner’s/appellant’s evidence that:
“With respect to this petition, the petitioner ought to tender concrete evidence of the date that the submission of candidates’ names to the 1st respondent closed for the election in dispute and also the date that the 3rd respondent’s name was submitted to the 1st respondent by her party, the 2nd respondent to enable the court decide whether or not sponsorship of candidates or submission of their names to the 1st respondent’s commission had closed at that date.
Regrettably, such evidence is absent in this case.”
Learned counsel for the appellant, still on his complaint of evaluation of evidence, submitted that the appellant as petitioner led evidence in adopting his witness deposition contained at pages 17 – 19 of Vol, 1 of the record and that the tribunal found and stated at page 294, Vol.2 of the record:
“That he could not remember the date 1st respondent published its first list of eligible candidates nor the date he went for verification.”
On this, appellant’s counsel submitted that the matter had commenced in 2007 and evidence was only been led in 2009 approximately 2 years after. That, bearing in mind that as humans we are either frail of body and of mind, and that judicial notice has been taken of the fact that the memory of a witness can clearly be altered with length of time. Counsel, relied on the case of Abike vs. Adedokun (1986) 3 NWLR (Pt 30) at 541. Counsel submitted further, that it is also from this background that this court should view the mistakes made as to dates especially when the petitioner had mistakenly stated that the election took place on 24th April, 2007 which was in his written deposition.
Counsel said the mistakes made by the petitioner/appellant as to dates could not have affected his credibility as concluded by the tribunal as there were no other dates offered by the respondents either in evidence or in pleadings to counter the dates given by the petitioner/appellant. There is no direct evidence that the date was contradicted by the respondents, they could not have, as there was no pleadings to lead evidence upon.
Appellant’s counsel relied on the cases of Overseas Construction Ltd. vs. CreeK Ent. Ltd. (1985)3 NWLR (Pt. 13)407 and Okweji Minor vs. Gbawejii(2008)5 NWIR (pt. 1079) at 172, the first to show that the finding of the tribunal on that score was perverse and has occasioned a miscarriage of justice and the second on the proposition that a court is not permitted to make a case not made by the parties before it.
Appellant’s counsel added that evidence obtained during cross-examination but on facts not pleaded is inadmissible. That, the tribunal placed overburdening emphasis on the fact that the petitioner/appellant contradicted himself, as this was based on inadmissible evidence, the reversal of the decision of the tribunal would be in order.
On issue No. 3, respondents’ counsel submitted that in his efforts to impeach the tribunal’s evaluation of the evidence of the appellant, the appellant limited his complaints to two issues, namely: (a) Exhibits A – A3 (b) the contradictions in the appellant’s case.
Respondents’ counsel submitted that since the appellant was alleging that the nomination of the 3rd respondent by the 2nd respondent was not within the time prescribed by law, he had the duty of proving it. In other words, it is imperative that he must prove the date the nomination was made so that a determination could be made on whether it was made within the time allowed by law.
Also, the respondents more especially through the 1st respondent submitted that the appellant’s insistence that the respondents did not file any pleading cannot be seriously countenanced, for it is the duty of a trial court to evaluate evidence before it even where uncontroverted or unchallenged.
On this point, respondents referred to the case of Basil v. Fajebe (1990) 6 NWLR (Pt. 155) 172. that, pleadings are no substitute for evidence, and averments in a pleading not supported by evidence are deemed abandoned. Kuti vs. Alashe (2005) 17 NWLR (Pt.955) p. 15.
Respondents’ counsel submitted that the tribunal was right in holding that the burden of proving the petition lies on the petitioner whether or not the respondents put forward any defence. He relied on the case of Ihute vs. INEC (2009) 1 NWLR (Pt. 1121) 179 at 196 – 197.
Still on the issue of whether the evidence led by the petitioner/appellant was properly evaluated, respondents’ counsel submitted that by paragraph 7 of the petition, the appellant’s sole ground thereat is that the 3rd respondent was not qualified to contest the questioned election. But that however at page 207 at Vol.2 of the record, the following transpired at cross-examination:
“Uzoukwu (SAN): It is not your case that the 3rd respondent was not qualified to contest the election.
PW1 : It is not my case.”
Respondents’ counsel submitted that based on the above, the tribunal made a crucial finding in respect of which there was no appeal whatsoever that.
“The evidence led by the petitioner in proof of his case leaves much to be desired as it contradicted almost all the important and material averments in his petition. The tribunal was shocked when under cross-examination, the petitioner who had predicated his petition on the ground that the 3rd respondent was not qualified to contest the disputed election, made a dramatic volte face and stated that his case was not that the 3rd respondent was not qualified to contest the election. That statement in our respectful view sounded the funeral dirge of his petition as the question may well be asked as to what then is left of the petition if its substratum, that is, the only ground, upon which it is premised is so carelessly repudiated.”
Issue No, 3 contains essentially two forms of complaints from the appellant, the first which relates to the tribunal’s finding of unreliability for Exhibits A – 43 has been dealt with in my treatment of issue No. 2.
The second deals with the contradictions in the appellant’s case, which the appellant sought to excuse on two grounds before us on appeal. (i) that the respondents did not file any pleadings and did not lead evidence. (ii) that the contradictions in the evidence of the appellant is natural, excusable having regards to the length of time between the events and the court action (2 years) which could affect human memory.
What are these findings by the Tribunal? First, at pages 294 – 295 in Vol. 2 of the record the tribunal stated:
“Further more, while in paragraph 20 of the petitioner’s deposition on oath, he stated that the 3rd respondent’s name was published by INEC (the 1st respondent)for the first time in another list (presumably a second list) towards the end of February 2007 contrary to the provisions of sections 32, 33 and 34(1) and (3)of the Electoral Act, 2006, the petitioner told the tribunal, while under cross-examination at the hearing of the petition that the 3rd respondent’s name was smuggled in two days to the election – an election that took place in April Again while the petitioner pleaded in paragraph 1 of his petition that the disputed election took place on the 21st day of April 2007, he told the court while under cross-examination that the election took place on the 24th April, 2007.
Further more, under cross-examination the petitioner could neither remember the date 1st respondent published its first list of eligible candidates nor the date he went for verification. He could also not remember the last date that parties were expected to submit the list of their candidates.”
Still on page 295 of Vol. 2 of the record, the tribunal found further as follows:
“What all these show is that the petitioner does not know when the 3rd respondent’s name was submitted to the 1st respondent by the 2nd respondent as a candidate for the disputed election and neither does he know the actual date when submission of names of candidates to the 1st respondent by all the political parties for the disputed election closed for both originally sponsored candidates and substituted candidates. Now if he is unable to furnish credible evidence on all these issues how does he intend to prove that the 3rd respondent was not properly nominated? The evidence on which a petitioner must rely for the success of his case must not be perfunctory, disjointed, disoriented or contradictory most importantly, such evidence must not be at variance with his pleadings.”
The tribunal at page 296 of Vol. 2 of the record went on to make further crucial evaluation and findings on the appellant’s case.
“The petitioner who was the only witness that testified in support of the petition did not impress this tribunal as a reliable witness. He was incoherent in the witness box and contradicted virtually all the material averments of his petition, The evidence tendered in proof of the petition is totally worthless and unworthy of any form of credibility. Such evidence is not capable, in our respectful opinion, of proving or sustaining this petition since it failed to show that the nomination of the 3rd respondent by her party the 2nd respondent (PDP) was in breach of sections 32, 34 and 35 of the Electoral Act, 2006.”
The inability of the appellant to accept the above findings on the various contradictions in his evidence and on his credibility on the ground that the respondents did not plead nor gave evidence shows a misunderstanding of the rules of pleading and burden of proof on the part of the appellant.
It is a bounding duty of the appellant to prove his case, here on a balance of probabilities even where no pleadings were filed and no evidence adduced by the respondents. Pleadings of the appellant do not constitute evidence, therefore every averment in the pleading must be proved by credible evidence. See Adighije vs. Nwaogu (2009) 2 NWLR (Pt 1125) 237.
Where as in the instant case, the appellant’s evidence materially contradicted his pleadings and is inconsistent as to material facts and dates, in a matter which was essentially to be proved by dates and calculations based on dates, the appellant could not fault the tribunal in pointing out to his disadvantage the inconsistencies in his case and how the inconsistencies affected his credibility and the lack of proof of his petition. It is the duty of the trial court to evaluate evidence before it even where the evidence is uncontradicted or unchallenged. See Basil vs. Fajebe (supra). This is because, the burden of proving the petition lies on the petitioner (appellant) whether or not the respondents put forward any defence. The pleadings of the appellant is no substitute for evidence and averments in a pleading not supported by evidence are deemed abandoned. See, Kuti vs. Alashe (2005) 17 NWLR (P. 955) at 15.
The appellant in this case also wondered why the Tribunal would not accept his wrong statement of the date when the election in dispute was held when according to him, the respondents did not plead or offer any evidence to the contrary. The date an election was held is one of which a Tribunal or Court of Law would be perfectly entitled to take judicial notice of under the provision of Sections 73 – 74 of the Evidence Act, Cap. 11 2 LFN 1990.
Thus the Tribunal was in order, without any fault on its side to point out that the appellant could not amongst other things even remember the date the disputed election was held.
In all, the findings of the Tribunal on the appellant’s evidence is impeccable and unimpeachable. The evaluation of evidence by the Tribunal has been done in accordance with laid down principles. And, in particular the Tribunal was right to have pointed out those serious and material contradictions between the appellant’s pleadings and his evidence. See Ogunbiyi vs. Ogundipe (1992) I NWLR (Pt. 263) 24 at 35 Ayanwale vs. Atanda (1988) All NLR (Reprint) 24 at 38. Issue No. 3 is also resolved against the appellant.
Having resolved the three (3) issues in this appeal against the appellant, the appeal is unmeritorious and it is accordingly dismissed.
There shall be N30,000.00 costs of this appeal in favour of the 3rd respondent as against the appellant.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. I am in complete agreement with his reasoning and conclusion that this appeal is completely unmeritorious. Suffice it to say, that the law court is not the place for professional litigants, busy bodies, meddlesome interlopers and pranks who have no real stake or interest in the subject matter of litigation they are seeking to pursue. I dismiss the appeal and abide by the order as to costs.
Appearances
A. O. Mogboh, (Jnr.) Esq.For Appellant
AND
Mrs. B. I. Amadi, Senior Legal Officer, INEC with Mrs. O. C. Nwugo, Legal Officer for the 1st Respondent
Livy Uzoukwu, SAN, with C. I. C. Uba, Esq. for the 2nd and 3rd RespondentFor Respondent
