CHIEF CHRIS NWAUKONI V. JOAN ONYEMACHI BIELONWU & ORS.
(2010)LCN/4101(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of December, 2010
CA/B/EPT/240/2009
RATIO
JOINDER OF PARTY: WHETHER THE JOINDER OF A PARTY IS AN AMENDMENT OF THE WRIT OF SUMMONS AND THE STATEMENT OF CLAIM WHICH AMENDMENT RELATES BACK TO THE DATE OF THE COMMENCEMENT OF THE MATTER AND NOT TO THE DATE OF THE JOINDER
The law has since been settled that once a party has been joined in a matter, the order for joinder is an amendment of the process by which the matter was begun and relates back to the date of the commencement of the matter and not to the date of the joinder. Therefore, having joined Accord Party as the 13th Respondent, though at the appellate stage, that joinder related back to the date of the commencement of the lower tribunal and not at the date it was joined at this level. In MALLAM V. MAIRIGA (1991) 5 NWLR (Pt.189) 114 at 127 – 128, it was held that: “… the joinder of a party is an amendment of the writ of summons and the statement of claim…which amendment relates back to the time the writ or the statement of claim was filed, not the time of the amendment.”I dare say that the fact that the joinder in the instant case relates to an election petition does not change this age long principle of the law which has become trite and now common place. see also ROTIMI V. MCGREGOR (1974) 11 SC 133 at 152; THE GOVERNMENT OF MIDWEST V. MID MOTORS LTD (1977) 10 SC. 43 AT 46. PER CHIOMA EGONDU NWOSU-IHEME, (PH.D.), J.C.A.
TYPES OF ESTOPPEL BY RECORD: THE DIFFERENCES BETWEEN THE TWO TYPES OF ESTOPPEL BY RECORD
There are two types of estoppel by record. They are cause of action estoppel and issue estoppel. Cause of Action Estoppel arises when the same parties or their privies are prevented from relitigating the same cause of action which had once been held to lie or not to lie between those parties or their privies while issue estoppel arises when parties or their privies are prevented in a subsequent suit on in the same suit from relitigating an issue which had earlier on been submitted for adjudication and decided upon by a court of competent jurisdiction and which same issue comes incidentally in question in any subsequent or the proceeding. It applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him. PER CHIOMA EGONDU NWOSU-IHEME, (PH.D.), J.C.A.
QUALIFICATION TO CONTEST AN ELECTION: WHETHER THE PUBLICATION AND DISPLAY OF A STATEMENT REGARDING THE FULL NAMES OF A NOMINATED CANDIDATE AT THE OFFICIALLY APPOINTED PLACES, BY OPERATION OF LAW MAKE THE CANDIDATES SO PUBLISHED AS HAVING BEEN DULY NOMINATED TO CONTEST A STATED ELECTION
Having been declared winner of the election under the platform of the Accord Party, the burden was that of the Appellant, to show that she was not qualified to contest that election under Accord Party not having been listed as a candidate of that party under section 35 of the Electoral Act or was so listed after the 30 days provided in that section which provides as follows: “The commission shall, at least thirty days before the day of the election publish by the displaying or causing to be displayed at the place or places appointed for the delivery of nomination paper and such other cases as it deems fit, a statement of the full names of all the candidates standing nominated”. In KAKGO V. FARUK (2009) ALL FWLR (Pt.475) 1752 at 1756, it was held that the publication and display of a statement regarding the full names of a nominated candidate at the officially appointed places, by operation of law make the candidates so published as having been duly nominated to contest a stated election. PER CHIOMA EGONDU NWOSU-IHEME, (PH.D.), J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
CHIEF CHRIS NWAUKONI Appellant(s)
AND
1. JOAN ONYEMACHI BIELONWU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE RESIDENT INDEPENDET NATIONAL ELECTORAL COMMISSION, DELTA STATE
4. ELECTORAL OFFICER, ANIOCHA SOUTH LOCAL GOVERNMENT AREA
5. RETURNING OFFICER ANIOCHA, SOUTH LOCAL GOVERNMENT AREA
6. UTULU HANNIBAL
(WARD RETURNING OFFICER FOR ANIOCHA WARD 4)
7. EMENKEA PATRICIA (MRS)
(WARD RETURNING OFFICER FOR ANIOCHA WARD 5)
8. NWADEI MICHAEL
(WARD RETURNING OTFICER FOR ANIOCHA WARD 1)
9. MADUEMEZIE ILOBA
(WARD RETURNINC OFFICER FOR ANIOCHA WARD 8)
10. NJOTE PETER
(WARD RETURNING OFFTCER FOR ANTOCHA WARD 11)
11. UTOMI EBUBE
(WARD RETURNING OFFICER FOR ANIOCHA WARD 9)
12. IBOLO PHILIP O.
(WARD RETURNING OFFICER FOR ANIOCHA WARD 10) Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, (PH.D.), J.C.A. (Delivering the Leading Judgment): The Appellant and the 1st Respondent were candidates for the Delta State House of Assembly elections for Aniocha South Constituency held on 14th of April, 2007 and conducted by the 2nd to the 12th Respondents. While the Appellant contested that election under the platform of the Peoples Democratic Party, the 1st Respondent contested under the 13th Respondent, the Accord Party. At the conclusion of the said election, the 1st Respondent was declared winner and thus returned as elected by the 2nd and 3rd Respondents. Aggrieved by the declaration and return, the Appellant, as Petitioner in the lower tribunal commenced proceedings therein by petition challenging the said declaration and return on six grounds set out in the petition as follows:
“(a) The 1st Respondent returned as winner of the election did not contest the election under any party from the printed ballot paper used for the election and in particular the Accord Party. Consequently all votes allegedly cast and counted for her are null and void.
(b) The 1st Respondent who is a PDP member up till the time of the election could not in all circumstances have been nominated by any party and in particular the Accord Party under which she was declared elected in that after the time nomination closed she got an order of court to be substituted for Petitioner as PDP candidate.
(c) The declared election results included that of Wards 4 and 5 despite the fact that no election took place in those wards the same having been marred with violence, gun shots which scared away voters while the collated results in Ward 9 was falsified when compared with the unit results from the ward.
(d) There was no basis to cancel the results of the stronghold of the Petitioner in Wards 1, 8 and 11 on the ground that the unit results were fraudulently kept away by Returning Officers in those wards from the constituency Returning Officer after the close of peaceful election in the units of the said wards. The collated results were not based on unit results in the wards an act deliberately (sic) done to enable 8th, 9th and 10th Respondents to falsify same to favour 1st Respondent, The unit results of the affected wards were given as required by law to Security Agencies and Agent of Petitioner.
(e) The Petitioner scored majority of the lawful votes cast at the election if the unit result in Wards 1, 8 and 11 are added to the results declared by INEC on 15th April, 2007 but with a wider margin if Wards 4 and 5 results are cancelled and the paper results in Ward 9 based on the units results are used instead of the falsified result allegedly collated but not used on the unit results in Ward 9.
(f) All results allegedly scored by 1st Respondent with the letter A without a party symbol or logo, which is mandatory, should be nullified or voided.” (See pages 544 – 345 of Vol. 1 of the Record of Appeal).
Now based on the foregoing grounds the Appellant crystallized the prayers he sought at the lower tribunal in the following terms:
“(i) That 1st Respondent did not contest the State House of Assembly Election into the Aniocha South Constituency under any party or Accord Party.
(ii) An order cancelling the results in Wards 4 and 5 of Aniocha South Constituency on the ground that there was no election in the two wards the same having been marred by election violence, gunshots so that whatever results declared were falsified.
(iii) An order that the cancellation of results of the election in Wards 1, 8 and 11 was unjustified being the fraudulent acts of 8th, 9th and 10th, Respondents who did not produce unit results handed over to them after the election in order to cover up their falsification of collated results and for the court to collate or add the unit results already collated by Petitioner from the Agents copies of the unit results or from other bodies entitled to the units results of the election, Wards 1, 8 and 11.
PARTICULARS OF FRAUD
(1) Keeping away time unit results from 4th and 5th Respondents
(2) Collated result were not based on the unit results.
(3) The acts of the 8th, and 10th Respondents were to enable 1st Respondent fraudulently win the election.
(iv) An order declaring that 1st Respondent JOAN ONYEMACHI BIELONWU was not duly elected based on the number of lawful and valid votes cast at the election,
(v) An order declaring Petitioner CHIEF CHRIS NWAUKONI as duly elected having scored majority of lawful and valid votes cast at the election and accordingly returned. (See page 545 of Vol. 1 of the Record of Appeal).
I have deliberately reproduced in extenso the grounds upon which the petition at the lower tribunal was predicated for reason of what I will say later in this judgment relating to the attacks on those grounds by the respondents. Before the 1st lower tribunal could commence hearing on the merits of the petition/the Petitioner applied and was granted leave to amend his petition. Subsequently, he filed an amended petition, objection was thereafter taken on the competence of the amended petition by which it was sought to dismiss the petition. The 1st lower tribunal took arguments on the objection at the end of which it upheld the objection and struck out the petition for incompetence. An appeal against the order of the 1st lower tribunal striking out the petition was upheld by this court and the petition was remitted back to be tried by a reconstituted tribunal. In remitting the petition back my learned brother GUMEL JCA, in his leading judgment stated inter alia thus:
“The consequence of setting aside the order striking out the petition is to order for a new trial. Some of the submissions and arguments of respective learned counsel on issues 1, 2, 3 and 4 herein will, without doubt, profoundly impact on the new trial. It would therefore be prejudicial to the parties if I begin to look into them or even make any finding on them. Therefore since issue no. 5 has sufficiently disposed of the appeal, I see no apparent good reason to consider the argument, of respective learned counsel on issues 1, 2, 3 and … This appeal succeeds and it is hereby allowed. The order of the lower tribunal striking out the petition is set aside. Petition shall be heard de novo and the tribunal established or to be established for Delta State,”
The petition was this sent back for trial before a reconstituted 2nd lower tribunal made up of a different paid of Judges from the 1st tribunal.
Hearing on the petition proceeded at the reconstituted lower tribunal at the end of which the said tribunal in a considered judgment dismissed the petition. The present appeal is against that judgment. Altogether seventeen (17) grounds of appeal were filed from which the Appellant distilled five issue for determination which was not consider necessary to set out here. 1st Respondent formulated three issued. In my view the three issues identified by the 1st Respondent as arising for determination in this appeal capture the essence of the appeal with profundity and analytical precision. They also cover the five issues set out by the appellant. The issues identified by the 2nd to the 12th Respondents and those of the 13th Respondent are similar in content if not identical with the suit three issues of the 1st Respondent. I will, therefore, proceed to deal with this appeal on the basis of the said three issues which I hereby, herein, ser out. They read:
“(1) Is the petition; the petitioner/Appellant competent having regard to the provisions of the Electoral Act 2006? (Distilled from Grounds 9, 10 and 11)
(2) Was the 1st Respondent a valid candidate of Accord Party or any other party at all in the Delta State Hours of Assembly Election? (Distilled from, Grounds 4, 5, 7 and 8).
(3) Was the 1st respondent lawfully returned by a majority of lawful votes cast at the election or was the Petitioner entitled to be so returned? (Distilled from Grounds 1, 2, 4, 6, 12, 13, 14, 15 and 16)’ .
Before arguing the merit of the appeal, learned counsel for the 1st Respondent in his brief failed argued a preliminary objection to the competence of the petition resulting in lack of jurisdiction on the ground of non-joinder of Accord Party at the lower tribunal as an indispensable and necessary party. Counsel, Mr. Mrakpor contended that the allegations made against Accord Party in the Petition made it an indispensable party to the petition requiring its joinder as a desideratum and that failure to join was a breach of fair hearing which in turn lobbed the lower tribunal of jurisdiction. Heavy reliance was placed on this court’s earlier decisions on the point in Appeal No. CA/B/EPT/334/2007; CHIEF OTUYA V. ONYEKWELI (Unreported) delivered on 9/6/10 and Appeal
No.CA/B/EPT/85/2008; OKOLOGBO V. ISEI (Unreported) and delivered on 1/7/10 both of which decision were said to have found their feet in the Supreme Court Judgment in AMAECHI V. INEC (2008) 5 NWLR (Pt.1080) 277. We were, therefore, urged to be guided by the above earlier decisions and strike out the petition for incompetence for the non-joinder of Accord Party.
In his reply to this preliminary objection, learned counsel for the Appellant Prince Nwafor-Orizu, in his reply brief contended that the objection was belated by virtue of the provisions of paragraphs 49(2) & (5) of the of the 1st schedule to the Electoral Act 2006 and paragraph 6 of the practice Direction No. 1 of 2007 in that it was not taken timeously and immediately the defect on the face of the petition was noticed. It was also argued that no appeal or cross-appeal was filed by any of the Respondents on the point nor was the point taken up for determination at the lower tribunal. It was further contended that the facts of the case; relied upon by the 1st Respondent in the objection namely the OTUYA and the OKOLOGBO cases are distinguishable from those of the present case in that in the OTUYA and OKOLOGBO cases there were no joinder at all whether at the lower tribunal or at the appellate tribunal whereas in the present case Accord Party was joined as 13th Respondent by this court which joinder, by law, related back to the date of the filing of the petition. Finally, it was argued that non-joinder could not defeat the petition at the tribunal since Accord Party has been joined albeit on appeal thus caring any defect assuming but not conceding that there was non-joinder.
Let me quickly dispose of this objection on the non-joinder. I must say immediately and without any equivocation or reluctance that this objection is like a storm in a cup of tea or making a mountain out of a mole hill. It is clearly on record that Accord Party was joined by this court as the 13th Respondent.
The law has since been settled that once a party has been joined in a matter, the order for joinder is an amendment of the process by which the matter was begun and relates back to the date of the commencement of the matter and not to the date of the joinder. Therefore, having joined Accord Party as the 13th Respondent, though at the appellate stage, that joinder related back to the date of the commencement of the lower tribunal and not at the date it was joined at this level. In MALLAM V. MAIRIGA (1991) 5 NWLR (Pt.189) 114 at 127 – 128, it was held that:
“… the joinder of a party is an amendment of the writ of summons and the statement of claim…which amendment relates back to the time the writ or the statement of claim was filed, not the time of the amendment.”
I dare say that the fact that the joinder in the instant case relates to an election petition does not change this age long principle of the law which has become trite and now common place.
see also ROTIMI V. MCGREGOR (1974) 11 SC 133 at 152; THE GOVERNMENT OF MIDWEST V. MID MOTORS LTD (1977) 10 SC. 43 AT 46.
The joinder of Accord Party in this case, albeit by this court an appeal has clearly distinguished it from the facts of OTUYA and OKOLOGBO and, therefore, the principles of the decision in those case will not apply in the instant situation. On this score alone the objection ought to be overruled. Even then the Accord Party having thus been joined as the 13th Respondent did not even seek to appeal on ground of lack of fair hearing at the lower tribunal. It did not seek for the remission of the petition back to the lower relates to an tribunal so as to be heard. It was satisfied with responding to the appeal of the Appellant as the said 13th Respondent and urged us, in the concluding portion of its brief of argument in paragraph 6.1 at page 19 thereof, “to dismiss this appeal in its entirety and affirm the judgment of the lower tribunal” for the reasons given in sub-paragraphs (1) – (6) at pages 19 – 20. On the foregoing reasons, therefore, I do not see the justification for the objection and agree with the contention of the learned counsel for the Appellant that the objection has no merit. In the circumstance, and without more, the objection is hereby overruled
There is one observation I have to make in relation to the Appellant’s amended reply brief before I proceed further in this judgment. The Appellant devoted nearly 9 pages (pages 15 – 23) of his reply brief to answer to a perceived preliminary objection of 2nd – 12th Respondents said to relate to his grounds of appeal. I say ‘perceived’ because it appears to me that the Appellant by that approach was oblivious of the fact that the original brief of the 2nd – 12th Respondents was amended upon a motion for amendment granted by this court on 9/11/10. The original brief in its pages 1 – 7 contained Notices of Preliminary Objection to the grounds of appeal of the Appellant and the arguments in support thereof. But by a motion dated 3/11/10 and filed on 4/1/10 counsel for 1st – 12th Respondents sought leave of this court to amend the aforesaid brief by substituting same with the 2nd – 12th Respondents Amended Brief of Argument…” and “AN ORDER deeming the said 2nd – 12th Respondents Amended Brief of Argument dated 30th October, 2010 separately filed as having been duly filed and served.” I have read that amended brief with studious and detailed attention and observed that in that brief of argument, no mention was made of any objection to the grounds of appeal and no arguments were proffered in opposition to any of the grounds of appeal. The law is trite that once a process of court is amended the amendment supplants what stood before the amendment and what stood before no longer determines the issue before the court. It is, therefore, surprising that so much time, space and energy were dissipated in the Appellants reply brief in the argument of a non-issue, or abandoned issue. Those argument will, therefore, be ignored.
Now to the merit of the appeal. I have already set out the issues in this appeal as formulated by counsel to the 1st Respondent which issues I stated encapsulates the other issues set out by the other parties. The first issue deals with the competence of the petition and of the propriety of the lower tribunal in dealing with the issue in his judgment. In his submission on this issue, the learned counsel for the Appellant, Prince Nwafor-Orizu, contended that the issue of the competence of the petition was raised by the Respondents and upheld by the 1st tribunal leading to an appeal to the Court of Appeal on the point which court allowed the appeal and remitted the petition for trial on the merit before another panel, i.e. the 2nd tribunal. It was therefore, argued that Court of Appeal (this court) having allowed the appeal and remitted the petition back for full trial on the merits, it was erroneous for the lower tribunal (the 2nd tribunal) to have revisited the issue of competence of the petition and pronounce it incompetent as it did. It was further argued that even at that, the issue of competence of a petition is one which ought to be raised and determined at the pre-hearing stage and not at the end of trial on the merits by virtue of paragraph 49 (2) & (5) of the First Schedule to the Electoral Act 2006. Therefore, it was contended, the lower tribunal could not longer consider the issue of competence of the petition at the stage it did, the petition having gone to full trial. Counsel further submitted that the lower trial tribunal misconstrued the pleading in the petition by reading it disjointedly instead of reading the pleadings together. He argued that when read together, paragraphs 1 and 25 of the petition would clearly show that the names and scores of the candidate were clearly stated. Finally it was argued that the petition did not deal with pre-election matters to make it competent.
In his reply on this issue, learned counsel for the 1st Respondent, Mr. Mrakpor argued that the petition was incompetent first because the grounds upon which it was based were those not contemplated by Sections 285(2) of the 1999 Constitution and 145(1) of the Electoral Act, 2006; secondly because the grounds related to the nomination of 1st Respondent by Accord Party and so were pre-election matters which the lower tribunal no competence to wade into; thirdly assuming that the matters were post election matters, the Appellant not being a member of the Accord Party had no locus to challenge 1st Respondents nomination; fourthly, that the petition did not comply with paragraph 4(1)(c) of the First Schedule to the Electoral Act. It was then argued that the fact that this court had earlier upon the appeal to it against the ruling of the 1st tribunal on competence of the petition overturned that ruling and remitted the case back for retrial on the merits did not foreclose the raising of the issue of competence before the 2nd tribunal. I must pause here to state that the 1st Respondent, in addition or in the alternative, filed a Respondent’s notice to affirm the judgment of the lower tribunal on other grounds than the one given in the judgment of the tribunal but equally hasten to say that substantial part of the arguments in supports of that notice are virtually identical to the arguments raised in her counsel’s argument in the brief filed in support of the judgment. There is, therefore, no need to consider the arguments in that notice differently from the arguments in the 1st Respondent’s brief.
The arguments of the learned counsel for the 2nd – 12th Respondents, Mr. Adeyemi, and those of learned counsel for the 13th Respondent, Mr. Okoriko, in their respective briefs followed closely those of counsel for the 1st Respondent, Mr. Mrakpor and substantially fall along the same lines. It must be borne in mind from the records of appeal in this matter, that the competence of the petition were variously raised before the lower tribunals on various grounds and decided upon. One of the such decisions was the one made by the 1st lower tribunal by which the petition was struck out for incompetence. The appeal to this court against the decision striking out the petition for incompetence was allowed and this court remitted the petition back for trial de novo on the merits. I have already set out part of the observation of this court per GUMEL JCA elsewhere in this judgment. But for a fuller import of the impact and bearing that judgment has on this issue I shall reproduce in a detailed form, and additionally, part of that observation. It reads, inter alia thus:
“In granting leave to the 1st Respondent to bring the motion of 22/10/07, the lower tribunal used its discretion under paragraph 6(1) of Practice Directions 2007. Under this paragraph leave to file and argue motions after the closing of pleading could be granted in extreme circumstances. What is the extreme circumstance that warrants the granting of leave to challenge a petition that had already been deemed as properly filed and served and also having been found to be satisfactory enough to merit full blown trial? In my humble view, I do not see any extreme circumstance. There clearly could not be any. What were lacking and that led to the whimsical and capricious striking out of the petition were failure to give the scores of candidates and non-attachment of supporting materials to the amended petition etc. According to paragraph 5 of the First Schedule to the Electoral Act, 2006, evidence need not be stated in the election petition, there is reserved for the tribunal under this paragraph, a discretion to order the Petitioner to file further particulars where the circumstances make it necessary. How did the lower tribunal fail to exercise this discretion in favour of the Petitioner but leaned on the side of the parties seeking to sentence the petition to premature death is unimaginable. I do not see any basis for the lower tribunal to have failed to exercise its discretion in favour of the hearing of the petition it had already passed as proper; having substantial complied with the law..”
The foregoing observation, particularly the underlined portions thereof together with the observation of the court earlier reproduced elsewhere in this judgment clearly show that the point of competence of the petition was distinctly raised both at the 1st trial tribunal and on appeal to this court in favour of the Appellant. Apart from this, the 2nd trial tribunal at pages 1012 – 1025 had following two separate applications brought by 1st Respondent and 2nd – 12th Respondents respectively challenging the competence of the petition on various grounds as those raised herein, ruled in each case that following the aforesaid decision of the Court of Appeal had foreclosed the issue of competence of the petition. The decision of the Court of Appeal on the issue and the two ruling of the 2nd trial tribunal on the point raise estoppel.
There are two types of estoppel by record. They are cause of action estoppel and issue estoppel. Cause of Action Estoppel arises when the same parties or their privies are prevented from relitigating the same cause of action which had once been held to lie or not to lie between those parties or their privies while issue estoppel arises when parties or their privies are prevented in a subsequent suit on in the same suit from relitigating an issue which had earlier on been submitted for adjudication and decided upon by a court of competent jurisdiction and which same issue comes incidentally in question in any subsequent or the proceeding. It applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him.
Following from the foregoing facts and position of the law thereon, it is preposterous and, indeed, capricious for the Respondents to reopen the issue of the competence of the petition at the lower tribunal that tried the matter on the merits and for that tribunal not only to entertain arguments on that issue but also to pronounce upon it in the way it did in its judgment in holding that the petition was incompetent. In thus holding, as it did, that the petition was incompetent, the lower tribunal altered the effect of its previous ruling on the issue and overturned the binding effect of the earlier judgment of this court on the same issue of competence which it was not entitled to do. The judgment of this court on appeal on the issue was clear and unambiguous. The positions of the judgment reproduced herein and underlined by me point to this fact that the petition was held competent by the court and that trial should proceed on the merits and on those merits it did proceed. I therefore, agree with the submissions of the learned Appellant’s counsel that the lower tribunal erred in reconsidering the issue of the competence of the petition which had been resolved both by this court and the lower tribunal. This issue is resolved in favour of the Appellant against the Respondent. Ground 10 and 11, therefore, succeed.
However, the lower tribunal after holding the petition incompetent proceeded to consider the other grounds of the petition and the issues arising therefrom before reaching its final decision. I will, therefore, consider the other issues in the appeal arising from the remaining grounds of appeal. The remaining two issues are the validity of the candidacy of the 1st Respondent as candidate of Accord Party and whether she was returned by a majority of lawful votes cast at the election. I will consider the two issues together.
In his brief of argument and amended reply, the Appellant’s counsel had argued on these issues, that 1st Respondent was not a candidate of Accord Party and, therefore, was not qualified to contest under that party in that neither that party’s name nor its logo was on the printed ballot paper to show that the party was participating in that election or had a candidate for the election. Counsel referred to Exhibits 12 and 18 tendered by Appellant and Respondent respectively and argued that exhibit 12 pleaded and tendered by the appellant showed that the Accord Party and its logo were not contained therein originally but were belatedly inserted in manuscript by INEC officials. He argued that Exhibit 18 tendered by the respondents contained parties than the 8 pleaded by the parties that contested the election. He further argued that there was evidence that 1st Respondent originally sought the mandate of PDP to contest but failed and remained a member of PDP and even challenged her failure in court. So she could not contest the election under any other party including the Accord Party. Exhibit 1, 2, 3, 4 and 9, counsel submitted showed that 1st Respondent printed posters as candidate of PDP and not as candidate of Accord Party. He further referred to Exhibits 146 and 147 said to be the nomination forms of Accord Party and submitted that those exhibits were manipulated and falsely procured as against Exhibits 13 and 13A tendered by him and claimed to be the actual nomination form of Accord Party containing the name of another candidate who did not scale the clearance of INEC which Exhibits the lower tribunal failed to give adequate or no consideration. Counsel further argued that Exhibit 18, 146 and 147 tendered by the respondents and relied upon by the tribunal were inadmissible in law by virtue of paragraph 4(8) of the Practice Direction not having been filed along with the reply to the petition.
Learned Appellant’s counsel further submitted that the lower tribunal did not consider the totality of the evidence led by the Petitioner in respect of the election malpractices alleged by him in Ward 1, 4, 5, 8, 9 and 10 before reaching its decision to dismiss the petition.
In his reply on the two issues in the amended brief of argument, learned counsel for the 1st Respondent, Mr. Mrakpor, contended that the 1st Respondent was a valid candidate of Accord Party in the election and argued that under the Electoral Act, the candidacy of a person to contest an election under a political party is determined by the publication of the candidate by INEC by virtue of section 35 of the Electoral Act 2006.
On this score counsel referred to Exhibit 148 which is the list of nominated candidates for the election. In addition, counsel referred to Exhibit 9, 13A, 14 and 14A to show 1st Respondent’s membership of Accord Party and her candidacy for the election under that party. On Exhibits 12 and 18, it was learned counsel’s submission that it was only INEC i.e. 2nd and 3rd Respondents that could establish which of the two (ballot papers) was used for the election but that Appellant did not call any witness to show that Exhibit 12 was either altered or mutilated to accommodate Accord Party. Counsel further argued that the onus was on the Appellant to establish that 1st respondent was not returned by a majority of lawful votes cast at the election but that he failed to do so. He submitted that the allegation of corrupt practices and offences in the petition in Ward 4, 5, 6 and 10 being criminal in nature were not proved.
On this part learned counsel for the 2nd – 12th Respondents submitted that the question as to who a candidate of a party should be is for the party and not for any other person. Counsel referred to Exhibit 147 and 148 and submitted that these Exhibits established the candidacy of the 1st Respondent with the Accord Party since those documents having been admitted in evidence become even more reliable than oral evidence. Counsel also referred to Exhibits 12 and 18 and submitted that while exhibit 18 was the sample of the ballot paper used in the election and bore the letter “A” representing Accord Party Exhibit 12 was not shown to be any such sample and not produced from proper custody. Finally counsel submitted that the allegations of falsification of election results and other corrupt practices and offences pleaded by the Appellant at the lower tribunal were not proved as required by law being criminal in nature.
The arguments of the learned counsel for the 13th Respondent, Mr. Okoriko followed the same lines. As I said in this judgment, after holding that the petition as presented was incompetent, the lower tribunal went ahead to consider the merits of the petition. I take it that this approach was adopted as an alternative measure should their holding that the petition was incompetent be reversed an appeal. I think the approach was shrewd. At pages 90 – 102 and 116 – 121, the lower tribunal treated the issues of the candidacy of the 1st Respondent and that of whether 1st Respondent was returned by majority of lawful votes cast at the election.
The issue of the candidacy of the 1st Respondent was pleaded in paragraphs 3 – 14 of the petition, the summary of which was that 1st Respondent was not a candidate of the Accord Party or of any party at all for that matter in the election subject of this appeal. The 1st Respondent answered the allegation of the Appellant by paragraph 2 – 20 of his reply the gist of which was that 1st Respondent was such a candidate. 2nd to 12th Respondents also maintained by paragraphs 2 – 8 of their reply that 1st Respondent contested the election as candidate of Accord Party. The evidence relied upon by the Appellant to show that 1st Respondent was not such a candidate was mainly that 1st Respondent had sought the ticket of the PDP at the primaries and failed and that Accord Party had no candidate for the election as its name and logo did not appear on the ballot paper used for the election. On the other hand the case of the 1st Respondent on the pleading and evidence was that after she failed to secure nominated to contest the election under the PDP she moved out of that party to the Accord Party where she secured nomination to contest and did contest the election under the latter party and won. The issue here was simple and straightforward. It is: was the 1st Respondent the candidate of the Accord Party or was she was not.
Having been declared winner of the election under the platform of the Accord Party, the burden was that of the Appellant, to show that she was not qualified to contest that election under Accord Party not having been listed as a candidate of that party under section 35 of the Electoral Act or was so listed after the 30 days provided in that section which provides as follows:
“The commission shall, at least thirty days before the day of the election publish by the displaying or causing to be displayed at the place or places appointed for the delivery of nomination paper and such other cases as it deems fit, a statement of the full names of all the candidates standing nominated”.
In KAKGO V. FARUK (2009) ALL FWLR (Pt.475) 1752 at 1756, it was held that the publication and display of a statement regarding the full names of a nominated candidate at the officially appointed places, by operation of law make the candidates so published as having been duly nominated to contest a stated election.”
In the instance case Exhibit 146 tendered in the proceedings as published by the 2nd Respondent bore the name of the 1st Respondent as the duly nominated candidate of Accord Party. Exhibit 148 is at page 297 of Vol.1 of the Record of Appeal and clearly bore the name of the 1st Respondent as candidate of “A” (Accord Party). The 1st Respondent had tendered her membership card of Accord Party in evidence. None of these documentary evidence was effectively challenged as fictitious or fake by the Appellant. Having tendered her membership card to show that she was a member of the Accord Party, she has discharged the primary burden to establish her membership of Accord Party. Thus shifting the evidential burden to the Appellant to disprove. This the Appellant could only do by attacking the credibility of that evidence resident in the membership card which the Appellant woefully failed to do at the trial. Therefore that evidence of membership remained one without reproach and conclusive of that point. The lower tribunal adequately considered all the evidence placed before it before reaching its finding at page 1158 of Vol.2 of the record of appeal as follows:
“The fact of whether the 1st Respondet was a nominated candidate int eh said election if finally put to rest by Exhibit 46 which is a certified true copy of the nominated list of candidate published by INEC before the election. Although the Petitioner tried to discredit the said Exhibit 148, we dare say that it was merely a feeble attempt that has not effect whatsoever on the credibility of the Exhibit… The burden of proof clearly lies on the Petitioner to establish that the 1st Respondent was not a candidate of Accord Party at the 14th April, 2007 Delta State House of Assembly Election which he was woefully failed to do.” (Underlining supplied).
The foregoing is a finding of fact borne out of evidence led and therefore not perverse. There will be no reason to disturb it.
On whether 1st Respondent was returned by majority of lawful votes cast at the election, the pleading in the petition showed that the allegation of falsification of election results, malpractices and fraud therein made on this point were criminal in nature requiring proof beyond reasonable doubt. The burden tribunal painstakingly reviewed the evidence, evaluated same and made findings of facts before reaching the conclusion that:
“The Petitioner’s case has been riddled with a large dose of lack of vital witnesses to prove all the allegations of malpractices and fraud. Vital witnesses who could have helped to established his case were not called. Even witness who could have been subpeoned by the Petitioner to testify on his behalf were not so subpeoned…”
There is no reason on the printed records to disturb the above findings of fact and conclusions therefrom and this court will not disturb them.
In the result the two issues are resolved against the Appellant and in favour of the Respondents. Ground 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16 and 17 fail. The failure of these grounds rendered the success of grounds 10 and 11 irrelevant in the consideration of this appeal. On the whole this appeal fails and it is hereby dismissed. I make no order as to costs.
HON. JUSTICE AMIRU SANUSI, J.C.A.: A copy of the judgment just delivered by my learned brother Nwosu-Iheme, JCA was made available to me before now. On going through the said judgment, I find myself at one with her reasoning and the conclusion that the appeal lacks merit. I accordingly dismiss the appeal and abide by the consequential order made in the lead judgment including one on costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother Nwosu-Iheme JCA. I agree that this appeal be dismissed.
Appearances
Orji Nwafor Orizu, with him Ekene Isaac and Uche OkoluFor Appellant
AND
Peter Mrakpor
O. A. Adeyemi
John OkorikoFor Respondent
