OLAWUYI RAHEEM TUNJI & ANOR v. ELDER DAVID BAMIDELE & ORS (2012)

OLAWUYI RAHEEM TUNJI & ANOR v. ELDER DAVID BAMIDELE & ORS

(2012)LCN/5142(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of February, 2012

CA/IL/EPT/SH/15/2011

RATIO

THE CANONS OF ENUNCIATING THE NATURE OF THE BURDEN IMPOSED ON THE PETITIONERS WHO ANCHORED THEIR AVERMENTS ON THE ALLEGATIONS OF CORRUPT PRACTICES; IRREGULARITIES AND ELECTORAL OFFENCES

In enunciating the nature of the burden imposed on the petitioners who anchored their averments on the allegations of corrupt practices; irregularities and electoral offences, the apex court laid down the followings canons:
The mere fact that there were irregularities or failure to strictly adhere to the provisions of the Act is not sufficient to void the election. In order to void the election, it must be shown:
That the irregularities or failures constitute substantial departure from the principles of the Act; and
That the irregularities or failure have substantially affected the results of the election.
From the foregoing, it is clear that for any court or tribunal to invalidate an election, the conditions set out must be met. It follows, therefore, that in a situation where the irregularities do not constitute it substantial departure from the principles of the Act and had not been shown to have affected the result of the election, the court or tribunal has no power to invalidate the election. Even in situations where the court considers that the proven irregularities constitute non-compliance, the court still has to be satisfied that the non-compliance has substantially affected the result of the election before the election can be nullified. PER. CHIMA CENTUS NWEZE, J.C.A

ON WHOM LIES THE BURDEN TO DEFEND THE ALLEGATIONS IN A PETITION

LAW OF EVIDENCE: WHETHER A DOCUMENT CAN SERVE ANY USEFUL PURPOSE IN THE ABSENCE OF ORAL EVIDENCE EXPLAINING ITS ESSENCE

The popular view that emerges from the plurality of superior authorities is that a tribunal cannot assume the duty of tying each of the bundles of documents to specific aspects of the case when the party tendering them has failed or neglected to do so. This prescription has a fundamental constitutional dimension. Appellate authorities have taken the view that a tribunal would be breaching the inveterate doctrine of fair hearing if it retires to the relaxed ambience of its chambers to examine such documents , when their material parts have not been tested under the usual adversarial procedure, ANPP v Usman (2009) All FWLR (Pt.463) 1292, 1337; Amachree v Goodhead (2009) All FWLR (Pt.461) 911, 940; Chime v Ezea (2009) 2 NWLR (pt 1125) 203, 380-381; Audu v INEC (No 2) (2010) 12 NWLR (pt 12t2) 456; ANPP v INEC (2010) 13 NWLR (pt 1212) 549, 597, 620-621; Iniama v Akpabio (2008) 17 NWLR (pt 1116) 296, 299.
The above prescription assumes, even, a more forceful dimension when it is realised that documents, apart from what they contain, do not speak, Odutola v Coker (1981) 5 SC 97. Little wonder why it has been held that a document cannot serve any useful purpose in the absence of oral evidence explaining its essence, Borno Holding Company Ltd v Bogoco (1971) 1 All NLR 324, 330-331. PER. CHIMA CENTUS NWEZE, J.C.A

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. OLAWUYI RAHEEM TUNJI
2. ACTION CONGRESS OF NIGERIA Appellant(s)

AND

1. ELDER DAVID BAMIDELE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

CHIMA CENTUS NWEZE, J.C.A (Delivering the Leading Judgment): Elections were conducted into the Kwara State House of Assembly, Irepodun Constituency, on April 26, 2011. The third respondent declared and returned the first respondent as the winner. The appellants were dissatisfied with that declaration. By their petition, filed on May 17, 2011, they challenged the said return of the first respondent before the National and State Houses of Assembly Election Petitions Tribunal, (hereinafter referred to as the tribunal).
In a considered judgement delivered on November 13, 2011, the tribunal dismissed the petition. Expectedly, the appellants were aggrieved, hence this appeal. They formulated three issues for the resolution of this appeal [paragraph 2,1.1 of the brief of argument].
On their part, the first and second respondents set out six issues for the determination of this appeal. The third respondent entreated this court to resolve three issues it set out in paragraph 4.01 of its brief.
We have had a hard and close scrutiny of he above issues. We are persuaded that the issues which the appellant articulated are sufficient for the determination of this appeal. We shall, therefore, adopt them as the issues for determination herein. We have, however, taken the liberty to reframe and condense them into only two issues thus:
Whether, in view of the civil allegations, the tribunal was right to have discountenanced the doctrine of severance of pleadings and held that the allegations were criminal in nature and ought to be proved beyond reasonable doubt?
Whether the tribunal was right in holding that the documents which the appellants tendered were not demonstrated before the tribunal?
ARGUMENTS OF COUNSEL
ISSUE ONE
Whether, in view of the civil allegations, the tribunal was right to have discountenanced the doctrine of severance of pleadings and held that the allegations were criminal in nature and ought to be proved beyond reasonable doubt.
This issue, which the appellants split into issues one and two, was argued extensively in their brief of argument, [paragraphs 3.0.0-3.1.8]. They compartmentalised the allegations in the pleadings into two categories, The first category related to the criminal allegations of acts of violence; thuggery; intimidation; harassment; cash inducement and rigging, citing paragraphs 11 (ii); 11 (viii); 11 (A); 11 (C); 11 (g) and 11 (h) of the petition. The second category of allegations which, in their view, were civil in nature could be found in paragraphs 11 (i); 11 (iii); 11 (iv); 11 (vi) and (vii) of the petition.
It was contended that the civil allegations were sufficient, if proved, to sustain the petition if the criminal allegations were excised from the pleadings, [paragraphs 3.0.8-3.0. 13 of the brief], citing cases such as Omoboriowo v Ajasin (1984) All NLR 105 etc. Counsel faulted the tribunal for holding that all the allegations were criminal in nature and must be proved beyond reasonable doubt. This, in their view, was a wrong direction on the nature of the allegation: an error that occasioned a miscarriage of justice, [paragraphs 3.1.5-3.1.8 of the brief]
For the first and second respondents, the view was canvassed that the testimonies of PW1-PW4 did not relate the averments in paragraphs 11 (i); 11 (iii); 11 (iv); 11 (vi); 11 (vii); 11 (ix); 11 (A) and 11 (D) of the appellants’ petition. In effect, no evidence was led in respect of the averments in the said paragraphs and they were thus deemed abandoned, [paragraphs 4.25-4.26 of the brief of the first and second respondents].
It was further observed that the statements on oath of PW1-PW11 [pages 443-472 of the record] did not, also, relate to the civil allegations cited above. Their testimonies were, thus, at variance with the pleadings, citing Kalu v Uzor (2006) 8 NWLR (pt 981) 66, 87; Ehimare v Emhonyon (1985) 1 NWLR (pt.2) 177. Worse still, the totality of evidence which the said PW1-PW11 adduced related only to five polling units out of the one Hundred and thirty three polling units in the constituency.
Counsel further argued that, in order to prove that votes credited to a candidate in an election were unlawful, the electoral documents from which the allegations may be deciphered must not only be tendered but evidence tying the documents to specific allegations must also be led through the witnesses, Obu v. Ebun (2006) All FWLR (pt 327) 419,442. Above all, the only way of questioning the lawfulness of votes cast at an election is to tender all the forms used in evidence and call witnesses to testify as to the misapplication of votes scored by individuals, Babba v Tafashiya (1999) 5 NWLR (pt 3) 465, 474. In the instant appeal, the appellants, as petitioners, could not prove that either the criminal or civil allegations, substantially, affected the results of the election. Buhari v Obasanjo (2005) All FWLR (sic) 1,210-211, was cited as authority for the proposition that it was not enough to prove pockets of either civil or criminal allegations, but that attempts must be made to show that the allegations were substantial enough to affect the result of the election. The arguments, proffered on behalf of the third respondent, were, essentially, in tandem with the above submissions of the other respondents, paragraphs 5.01-5.04 of the brief].
RESOLUTION OF THE ISSUE
With due respect, the first limb of the appellants’ submission, which deals with proof of the criminal averments, is, clearly, fallacious. It tends to supplant the three-fold burden imposed on the appellants, who, as petitioners, wove the averments in their pleadings around criminal allegations. At the tribunal, PW1 -PW4 gave testimonial evidence, presumably, in proof of the alleged electoral offences; irregularities etc during the conduct of the said election. In the first place, since these allegations constitute, clearly, defined offences under the Electoral Act, the appellants’ first duty was to prove them beyond reasonable doubt, Nwankwo v. Alo (1960-1980) LRECN 34; Nyako v. Balewa (1965) NNLR 257.
In addition, the testimonies of these witnesses ought to have, sufficiently, linked the first and second respondents or their agents with the said electoral offences, section 124 (6) of the Electoral Act, 2010 (as amended); Buhari v Obasanjo (2005) 13 NWLR (pt 8710 159; Falae v Obasanjo (No 2) (1999) 4 NWLR (pt 599) 476; Ebube v Ezenduka (1998) 7 NWLR (pt 536) 74; Audu v INEC (No 2) (2010) 13 NWLR (pt 1212) 456, 546; Obun v Ebu (2006) All FWLR (pt 327) 419.; Yusuf v Obasanjo (2008) 18 NWLR (pt 956) 96, 164 and 174-175.
The appellants, above all, had a duty to prove that the said allegations, materially and substantially, affected the conduct of the election, Buhari v INEC (2009) 4 EPR 623, 840.

In enunciating the nature of the burden imposed on the petitioners who anchored their averments on the allegations of corrupt practices; irregularities and electoral offences, the apex court laid down the followings canons:
The mere fact that there were irregularities or failure to strictly adhere to the provisions of the Act is not sufficient to void the election. In order to void the election, it must be shown:
That the irregularities or failures constitute substantial departure from the principles of the Act; and
That the irregularities or failure have substantially affected the results of the election.
From the foregoing, it is clear that for any court or tribunal to invalidate an election, the conditions set out must be met. It follows, therefore, that in a situation where the irregularities do not constitute it substantial
departure from the principles of the Act and had not been shown to have affected the result of the election, the court or tribunal has no power to invalidate the election. Even in situations where the court considers that the proven irregularities constitute non-compliance, the court still has to be satisfied that the non-compliance has substantially affected the result of the election before the election can be nullified
Against this background, we endorse the submission of the first and second respondents [paragraph 4.20 of the brief] that the law is concerned with the substantiality of the irregularities or non-compliance. Unarguably, the appellants failed in this regard, that is, they failed to prove the substantiality or materiality of their allegations on the outcome of the election or return of the first respondent.

What is more, the submissions of the appellants’ counsel, equally, overlooked the age-long prescription that in civil matters, including election petitions, the respondent has a contingent burden: contingent because the duty to defend the allegations in the petition will only mature when the appellants have, successfully, established their petition, Jolayemi v Alaoye (2004) All FWLR (pt.217) 584; Adeleke v Iyanda (2001) 13 NWLR (pt 729) 1; Aromire v Awoyemi (1972) 2 SC 1. In the instant case, there is no justifiable reason for interfering with the tribunal’s conclusion that the appellants failed to prove their petition and so the respondents had no obligation to attend to the allegations that were at large, Fannami v Bukar (2004) All FWLR (pt 198) 1210; 1259-1260; Odulaja v Haddad (1973) 11 SC 3 57; Omoregbe v lawani (19S0) 3-4 SC 108; Dibiamaka v Osakwe (1989) 3 NWLR (pt 107) 101.
As shown above, the second category of allegations which, in the appellants, view, were civil in nature could be found in paragraphs 11 (i); 11 (iii); 11 (iv); 11 (vi) and (vii) of the petition. In an attempt to prove these averments, PW1-PW1 testified. We have waded through pages 443-472 of the record where the statements on oath of these witnesses can be found.
Quite apart from the fact that the testimonies of PW1-PW11 were limited to five polling units out of One Hundred and Thirty Three polling units in the aforesaid Constituency, their evidence elided any reference to the averments in paragraphs 11 (i); 11 (iii); 11 (iv); 11 (vi) and (vii) of the petition. The submission of the respondents’ counsel here is well-taken: averments in pleadings that are not supported by evidence must be discountenanced, Buhari v Obasanjo (2005) All FWLR (pt. 273) 1, 170. In all, we are in agreement with the submissions of the counsel for the respondents that the testimonial evidence of the above witnesses and the documentary evidence, exhibits A; B and C fell far short of the standard required for the proof of even the allegations that were civil in nature. Certainly, the appellants failed to prove their petition in the manner envisioned by law, as settled by case law, see, for example, Obun v Ebu (206) All FWLR (pt 327) 419, 442; Kurfi v Mohammed (1993) 2 NWLR (pt277) 602, 603; Babba v Tafashiya (1999) 5 NWLR (pt 3) 468, 474; Buhari v Obasanjo (2005) All FWLR 1, 210-211.
ISSUE TWO
Whether the tribunal was right in holding that the documents which the appellants tendered were not demonstrated before the tribunal?
The appellants attended to this question under its third issue, [paragraphs 3.3.1-3.3.16 of the brief]. They addressed the issue under five broad sub-headings.
In the first place, it was contended that the irregularities appeared on the face of the documents which were tendered, citing INEC v Oshiomhole (2009) 4 NWLR (pt 1132) 607, 678; Arabambi v Advance Beverages Ind Ltd (2005) 19 NWLR (pt 959) 1, 31 to the effect that a trial Judge is free to examine documents and oral evidence before him. It was further pointed out that the argument of counsel is yet another way of the demonstration of documents, citing Ngige v Obi (2006) 14 NWLR (pt 999) 1, 161. Next, the view was canvassed that the respondents, extensively, cross examined the witnesses on the said documents, citing Ngige v Obi (supra) 161.
Citng Aiki v Idowu (2006) 9 NWLR (pt 984) 47, 641-647, counsel maintained that as the irregularities complained of are manifest on the face of the document or upon a comparison of one document with another, no further evidence was required, [paragraph 3.3.12 of the brief]. Finally, he contended that paragraph 46 (9) of the First Schedule of the Electoral Act permitted the tendering of exhibits in bundles because election petitions are sui generis, [paragraphs 3 .3 .14-3.3. 16 of the brief].
The first and second respondents replied to the above submissions seriatim. It was first contended that the electoral documents in question were all tendered after the appellants had called their eleven witnesses. Thus, no other witness made a public demonstration of the said documents, [paragraph 4.1-4.2 of the brief, citing pages 443-475 of the record]. In effect, the documents wee not tied to any evidence or to any specific allegation in the petition. This amounted to ‘dumping of the documents’ on the tribunal , Na’UMBA v Nahuche (2010) All FWLR (pt 506) 1963, 1974-1975; Amachree v Goodhead (2009) All FWLR (pt 461) 911, 940.
Counsel contended that INEC v. Oshiomhole (supra) was cited out of con because in that case the witnesses explained and spoke to the documents, citing pages 658; 663 and, particularly, page 682 of the report. In effect, in that case, there was a public demonstration of the bundles of the documents.
He explained that in Ngige v Obi (supra at page 162), there was foundational evidence upon which a chart was drawn unlike in the instant case where the electoral documents, upon which the appellants’ counsel drew the chart, attached to their final written address, was not subjected to public demonstration by any of the appellants’ witnesses. Counsel, further, took the view that the appellants’ cross examination of the respondents’ witnesses did not the the electoral documents to their evidence as to assist the case of the appellants. Indeed, only six documents, out of the over One Thousand, Five Hundred documents tendered, were shown to three of the respondents, citing pages 575-601 of the record. Thus, the evidence which the appellants elicited in cross examination did not establish the allegations of irregularities in the petition, citing Obasi Brothers Merchants Co Ltd v Mba Securities Ltd (2005) All FWLR (pt 261) 242 on the duty of a party to elicit evidence in court through its witnesses, especially as in the case where various documents are involved.
Counsel further, relying on Egba v Appah (2005) 10 NWLR (pt 934) 464, contended that documents are not objects that can be cross examined. Thus oral evidence must be called in support thereof. [Odutola v Coker (1981) 5 SC 97].
Counsel for the third responded canvassed similar views, [paragraphs 5.06- 5.14 of the brief. In addition, he submitted that the provisions of paragraph 41 (1); (2) and (3) of the First Schedule to the Electoral Act govern the admissibility the tendering and admissibility of documents in an election petition. Thus, any document tendered and admitted contrary to the said provisions would be unreliable, having not been properly presented in accordance the law governing their admissibility.
RESOLUTION OF THE ISSUE
The answer to the five questions which the appellants canvassed under this issue is very simple. The propositions that run through paragraphs 3.3.1 – 3.3.16 of the brief cannot withstand the formidable logic that yielded the conclusion of the apex court on these questions. It simply comes to this. A Judge is not permitted to embark on an inquisitorial examination of documents outside the court room. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure. In Ivienagbor v. Bazuaye [1999] 9 NWLR (pt 620) 552: (1999) 6 SCNJ 235, 243 Uwaifo JSC, speaking for the Supreme Court, intoned magisterially:
In the same way, a court is not entitled to substitute its own views for matters in contention in the absence of evidence: see, Owe v. Oshinbanjo (1965) 1 All NLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) 1 All NLR 324 at 333. The type of evidence a court can act on is the evidence which was exposed and canvassed in court. A judge cannot by examining documents outside court act on what he considers he has discovered on an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure. In Alhaji Onibudo & Ors v Alhaji Akibu & Ors (1982) 7 SC 60 at 62, Bello JSC (later CJN) observed as follows:
It needs to be emphasised that the duty of a court is to decide between the parties on the basis of what has been demonstrated, canvassed and argued in court. It is not the duty of a court to do cloistered justice by making un inquiry into the case outside court, even if such inquiry is limited to examination of documents when the documents had not been examined in court and their examination out of court disclosed matters that had not been brought out and exposed to test in court.
[italics for emphasis]
In the face of these impregnable pronouncements, it can be seen that the submissions the appellants’ counsel were erected on the quicks and of sophistic reasoning: reasoning that tended to obfuscate rather than explicate the nuances of the issue.
Reading through the proceedings from pages 443-475, we cannot but agree with the counsel for the first and second respondents that the electoral documents, which the appellants tendered, were all tendered after the eleven witnesses, marshalled to prove the petition, had testified. The proposed twelfth witness, who was supposed to tender the Forensic Expert’s Report, could not adopt his written statement on oath. As it transpired, [pages 547-573 of the record] an objection was, successfully, taken against the propriety of his adoption of the said statement on oath to which the report was attached. In effect, what the appellants did amounted to what case law has, aptly, christened ”dumping documents on the face of the lower (sic) tribunal”, NA’ UMBA v Nahuche (2010) All NWLR (pt 506) 1963, 1974-1975 Enemuo v Dint (2002) FWLR (pt 126) 1004, 1005-1006. The popular view that emerges from the plurality of superior authorities is that a tribunal cannot assume the duty of tying each of the bundles of documents to specific aspects of the case when the party tendering them has failed or neglected to do so.
This prescription has a fundamental constitutional dimension. Appellate authorities have taken the view that a tribunal would be breaching the inveterate doctrine of fair hearing if it retires to the relaxed ambience of its chambers to examine such documents , when their material parts have not been tested under the usual adversarial procedure, ANPP v Usman (2009) All FWLR (Pt.463) 1292, 1337; Amachree v Goodhead (2009) All FWLR (Pt.461) 911, 940; Chime v Ezea (2009) 2 NWLR (pt 1125) 203, 380-381; Audu v INEC (No 2) (2010) 12 NWLR (pt 12t2) 456; ANPP v INEC (2010) 13 NWLR (pt 1212) 549, 597, 620-621; Iniama v Akpabio (2008) 17 NWLR (pt 1116) 296, 299.
The above prescription assumes, even, a more forceful dimension when it is realised that documents, apart from what they contain, do not speak, Odutola v Coker (1981) 5 SC 97. Little wonder why it has been held that a document cannot serve any useful purpose in the absence of oral evidence explaining its essence, Borno Holding Company Ltd v Bogoco (1971) 1 All NLR 324, 330-331.
Finally, considering the appellants’ failure to demonstrate the irregularities in exhibits D-AAO and exhibits A; B and C, we find no justification in tampering with the decision of the tribunal, see pages 870-873 of the record.
In all, we find no merit in this appeal. That explains why we dismissed it in our pronouncement of January 6, 2012.That remains the order of this court.