ACTION CONGRESS OF NIGERIA & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2012)LCN/5182(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of February, 2012
CA/I/EPT/FH/17/2011
RATIO
LAW OF EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE AN ASSERTION
By virtue of the provisions of sections 135 and 136 of the Evidence Act, he who asserts must prove and once he fails to prove his assertion with cogent and credible evidences then he is bound to fail in his claim. The principle that he who asserts must prove applies to Election Petitions. The mere fact that the defence did not testify does not relieve the Appellants of the burden of proving their case. See AKINYELE V. AFRIBANK, PLC, (2005) 17 N.W.L.R. Part 955 Page 515 – 516 Paragraphs G-A where the court had this to say: “But we must hasten to add that it will be wrong for a plaintiff to assume that he will be entitled to judgment as a matter of cause, as is exactly the situation in the instant case. The trial court is still under a duty to evaluate the evidence adduced by the Plaintiff and must be satisfied that the evidence is credible and sufficient to sustain the claim. This is so because the legal burden on the Plaintiff or any person who asserts, is to prove his claim on balance of probabilities, and is in no way mitigated by the opposing side’s election to blow a muted trumpet”. See also LARMIE V. DPM SERVICES LTD. (2005) 18 N.W.L.R. Part 958 Page 438 at 472 Paragraphs C-D. PER. MODUPE FASANMI,
LAW OF EVIDENCE:WHETHER PLEADINGS CAN CONSTITUTE EVIDENCE
See FCDA V. ALHAJI MUSA NAIBI (1990) 5 SCNJ Page 786 at 795-796 where is was held that:
“Pleadings cannot constitute evidence and a Defendant who does not give evidence in support of his pleading or in challenge of the evidence of the Plaintiff is deemed to have accepted the facts adduced by the Plaintiff not withstanding his general traverse”. Also in HENIKA SAWMILL (NIG.) LTD V. MARY OKOJIE HOFF (1994) 2 SCNJ pages 86 at 97-98 the court had this to my that: “Where parties have joined issues on pleadings, each party is required to prove his averments which have not been admitted by offering evidence or eliciting evidence from the opponent through cross-examination”. PER. MODUPE FASANMI,
JUSTICES:
STANLEY SHENKO ALAGOA (OFR) Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
(1) ACTION CONGRESS OF NIGERIA (ACN)
(2) HON. ADELUYI AKANBI – Appellant(s)
AND
(1) INDEPENDENT NATIONAL ELECTORAL COMMISSION
(2) HON. RASAK ADEWUSI
(3) PEOPLES PARTY OF NIGERIA (PPN) – Respondent(s)
MODUPE FASANMI, JCA (Delivering the Leading Judgment): This is an appeal against the judgment of the National and State Legislative Houses Election Tribunal sitting in Abeokuta, Ogun State delivered on the 11th of October 2011 in Petition No.EPT/OG/FH/06/2011.
Briefly, the Appellant and the 2nd Respondent contested for the House of Representatives seat of Egbado North/Imeko Afon Federal constituency in Ogun State during the 9th April 2011 general election. The election was conducted by the 1st Respondent which declared the 2nd Respondent the winner of the election. Appellant disputed the result of the election and the eligibility of the 2nd Respondent to contest the election.
The petition was based on three grounds. They are stated hereunder:
(i) That the 1nd Respondent was not qualified to contest the election on the ground that he was not sponsored by any political party. His substitution form was submitted to the office of the 1st Respondent after the date fixed for the submission of the forms and was consequently smuggled into 1st Respondent’s office. The 2nd Respondent was nominated by two political parties for the same seat.
(ii) The election was marred by election malpractices in 25 polling units because under aged persons and foreigners were allowed to vote in favour of the 2nd Respondent. There were allegations of bribery of voters, campaign during election and disenfranchisement of Appellants supporters from voting.
(iii) The 2nd Respondent was not duly elected by majority of the lawful votes cast at the election.
Parties joined issues. During trial, the Appellant called two witnesses. The 2nd Respondent called one witness. In its judgment, the Tribunal in a unanimous decision held that the 2nd Respondent was duly elected by majority of lawful votes cast during the election and dismissed the petition.
Dissatisfied with the decision, Appellants appeared to this court.
Appellants distilled a sole issue for determination from the four grounds of appeal in their brief of argument dated 10th November, 2011 but filed on 11/11/11 the reply brief was filed on 23/11/11. The sole issue states:
Whether, on the facts and circumstances presented before the lower Tribunal in the petition, the lower Tribunal was right in its application of the law thereto, to arrive at its decision to the effect that the 2nd Respondent was validly nominated by the 3rd Respondent and that the 2nd Respondent was therefore qualified to contest the election which was the subject matter of the petition pending before it.
The 2nd and 3rd Respondents brief of argument is dated and filed 21st November, 2011. 2nd and 3rd Respondents state that the only issue for determination in the appeal is:
Whether the lower Tribunal rightly or wrongly dismissed the petition on the ground that the Appellants failed to discharge the burden of proving their allegation that the 2nd Respondent was not qualified to contest the election.
1st Respondent however did not file any brief. Be that as it may, the issues formulated by the Appellants and the 2nd and 3rd Respondents are the same but couched differently. However the appeal will be determined on the issue formulated by the 2nd and 3rd Respondents. The issue is:
Whether the lower Tribunal rightly or wrongly dismissed the petition on the ground that the Appellants failed to discharge the burden of proving their allegation that the 2nd Respondent was not qualified to contest the election.
Learned Counsel for the Appellants submitted that on the state of pleadings and the evidence of the 2nd Appellant as P.W.1, the burden of proof had shifted to the Respondents to prove that 2nd Respondent actually resigned his membership of the P.D.P within time, abandons his nomination and sponsorship by that party, was not a party to the proceedings in exhibit “P8” and was therefore not disqualified to contest the election. He placed reliance on the case of AGBAKOBA V. INEC (2009) A11 FWLR part 462 Page 1037 at 1087 Paragraph E.
Submitted that the Respondents did not discharge that duty as none of the Respondents called any witness to give evidence on the point of the non qualification of the 2nd Respondent to contest the election. The effect of the omission to call evidence is not only that the 2nd and 3rd Respondents have abandoned the averments in their reply on the point of non qualification; they had also admitted the evidence of the 2nd Appellant on the point. He cited the case of A.G. KWARA V. OLAWALE (1993) 1 NWLR Part 272 Page 645 at 656-666.
On the 1st Respondent, Learned Counsel for the Appellants submitted that the 1st Respondent having not filed a pleading and having failed to cross-examine the 2nd Appellant on the point of the 2nd Respondents non-qualification to contest the election, he is deemed to have admitted the averments in the petition and the Appellant’s reply and to have admitted the Appellants evidence on the point of non-qualification.
He submitted further that since the evidence of P.W.1, despite the cross-examination, did not seem to be weak in content and was not manifestly unreasonable or devoid of any substance to help in resolving the issue of non-qualification, it ought to have been believed accorded credibility and relied upon by the lower Tribunal on the point of the non-qualification of the 2nd Respondent to contest the election on 9/4/2011. He placed reliance on the cases of ALFOTRIN LTD. V. A.G. FED. (1996) 9 N.W.L.R part 475 page 694 at 667 Paragraphs F-G and SPDC LTD. V. EDAMKUE (2009) 12 N.W.L.R. Part 1160 Page 1 at 41 paragraphs E- F, Learned counsel urged the court to hold that the issue of non-qualification of the 2nd Respondent had been proved. He urged the court to resolve this issue in favour of the Appellants and allow the appeal. Learned senior counsel for the 2nd and 3rd Respondents in reply submitted that the Appellants failed to discharge the burden of proof of allegation of non-qualification of the 2nd Respondent to contest the election. Submitted that Appellant contended that he discharged the burden of proof by establishing a prime facie case against the 2nd Respondent. He contended that the Appellants want this Honourable court to hold that once a prima facie case has been established by them, the burden of proof of non-qualification of the 2nd Respondent to contest is discharged.
Learned Senior Counsel for the 2nd and 3rd Respondents submitted that the Appellants who alleged that the substitution form was smuggled into 1st Respondent’s office by officials of the 3rd Respondent in concert with 1st Respondent’s official discharge the onus of alleged crime on the basis of prima facie evidence. The allegation being criminal in nature, the standard of proof is proof beyond reasonable doubt, submits further that a petitioner who fails to prove crime beyond reasonable doubt will have the case dismissed as in the instant case.
Learned Senior Counsel placed reliance on the case of SHEKETE V. N.A.F. (2000) 16 N.W.L.R page 56 at 69 where it was held that:
“In criminal jurisprudence, the verdict of guilt on a suspect can only be sustained upon an evidence which established beyond reasonable doubt the guilt. Where there is doubt, it must be resolved in his favour”.
Appellants alleged that the 2nd Respondent is not qualified to contest the election. The burden of proving every material particular of the allegation is therefore on the Appellants. Submitted further that it does not matter that the Respondents have not testified personally or chose not to call evidence at all. The burden of proving that at the material time of the election, the 2nd Respondent was still a member and candidate of P.D.P. was on the Appellants and at all material times, neither a member nor a candidate of the 3rd Respondent.
Learned Senior Counsel submitted further that parties are not in dispute that the nomination of the 2nd Respondent by a faction of P.D.P. was finally nullified by the judgment in suit No.FHC/ABJ/CS/28/2011 i.e. exhibit P5. By virtue of the judgment tendered by the Appellants at the lower Tribunal, the 2nd Respondent in the eyes of the law was never a candidate of P.D.P. after the order of the Federal High Court of 26/1/2011. He contended further that exhibit 8 which is the process filed in suit No. FHC/ABJ/226/2011 shows that Appellant and other members of the 3rd Respondent were in court to assert their rights to contest the election.
The process was filed on 17th of February, 2011. This is an admission by 2nd Respondent of membership of 3rd Respondent. Submitted that the burden of proving that the 2nd Respondent was not sponsored by a political party is on the Appellants. Reliance was placed on the case of WUJEP V. WAYEPS (1997) 10 N.W.L.R. part 523 Page 154 at 165 where it was held:
“By the presumption of regularity, there is a presumption that things are rightly and properly done”.
Learned senior counsel finally submitted that since the Appellants formally admitted that 2nd Respondent was 3rd respondents candidate, they are stopped from asserting that 2nd Respondent was not sponsored by a political party. He urged the court to dismiss the appeal because the Appellants failed to prove their allegation that the 2nd Respondent was not qualified to contest the election. He urged the court to resolve this issue against the Appellants and affirm the decision of the lower Tribunal.
By virtue of the provisions of sections 135 and 136 of the Evidence Act, he who asserts must prove and once he fails to prove his assertion with cogent and credible evidences then he is bound to fail in his claim.
The principle that he who asserts must prove applies to Election Petitions. The mere fact that the defence did not testify does not relieve the Appellants of the burden of proving their case. See AKINYELE V. AFRIBANK, PLC, (2005) 17 N.W.L.R. Part 955 Page 515 – 516 Paragraphs G-A where the court had this to say:
“But we must hasten to add that it will be wrong for a plaintiff to assume that he will be entitled to judgment as a matter of cause, as is exactly the situation in the instant case. The trial court is still under a duty to evaluate the evidence adduced by the Plaintiff and must be satisfied that the evidence is credible and sufficient to sustain the claim. This is so because the legal burden on the Plaintiff or any person who asserts, is to prove his claim on balance of probabilities, and is in no way mitigated by the opposing side’s election to blow a muted trumpet”.
See also LARMIE V. DPM SERVICES LTD. (2005) 18 N.W.L.R. Part 958 Page 438 at 472 Paragraphs C-D.In the instant case, Appellants alleged that the 2nd Respondent was not qualified to contest the election of 9th April, 2011 because until March, 2011, he was still a member and candidate of P.D.P. Appellants pleaded that the 2nd Respondent was not P.D.P’s candidate. Paragraph 4 of the petition shows that the 2nd Respondent contested the election as 3rd Respondents candidate. 2nd Respondent denied the allegation of being a member of P.D.P. after 26/1/2011. Appellants failed to lead direct evidence as to the day the 2nd Respondent became a member of the 3rd Respondents party. P.W.1 Hon. Adeluyi Akanbi under cross-examination by 2nd Respondent’s Counsel at page 204 of the record is instructive. He testified thus:
“I am not a member of P.P.N. I have not seen their register to know who are their members. I cannot say when the 2nd Respondent joined it but I know that he was a member of P.D.P. until March, 3rd 2011. I do not have his letter of resignation from P.D.P. but it was after March, 2011. I see a Photocopy of the punch Newspaper of 7th March, 2011 (exhibit P6). It was not stated when 2nd Respondent decamped to PPN”.
The Appellants through P.W.1 tendered exhibit P4 which is a Certified True copy of the originating process of FHC/ABJ/CS/17/2011. A detailed reading of the said exhibit contained the nomination form of the 2nd Respondent as candidate of the 3rd Respondent shows that the 1st Respondent received the 2nd Respondent’s nomination as candidate of the 3rd Respondent on the 14th of February 2011. 1st Respondents acknowledgement of his receipt of the nomination of the 2nd Respondent as candidate of the 3rd Respondent, forms part of the bundle of document contained in exhibit P4 tendered by the Appellants. By virtue of section 150 of the Evidence Act, where an act is shown to have been done in a manner substantially regular, a court of law can presume that formal requisites for its validity were complied with. See ONDO STATE UNIVERSITY V. FOLAYAN (1994) 7 N.W.L.R Part 146 Page 551 at 559-560.
Again Appellants led no evidence to show that the 2nd Respondent who was not a party in exhibit P5 was still in contention for the ticket of the peoples Democratic Party as of that day the judgment was delivered. See FCDA V. ALHAJI MUSA NAIBI (1990) 5 SCNJ Page 786 at 795-796 where is was held that:
“Pleadings cannot constitute evidence and a Defendant who does not give evidence in support of his pleading or in challenge of the evidence of the Plaintiff is deemed to have accepted the facts adduced by the Plaintiff not withstanding his general traverse”.
Also in HENIKA SAWMILL (NIG.) LTD V. MARY OKOJIE HOFF (1994) 2 SCNJ pages 86 at 97-98 the court had this to my that:
“Where parties have joined issues on pleadings, each party is required to prove his averments which have not been admitted by offering evidence or eliciting evidence from the opponent through cross-examination”.The Register of P.D.P. members was not tendered before the Lower Tribunal by the Appellants in proof of allegation that at all material times after 26/1/2011 until 3/3/2011 and thereafter 2nd Respondent remained a member of P.D.P.
Appellants did not prove that exhibit P4 the acknowledgment of nomination form of the 2nd Respondent as candidate of the 3rd Respondent was a forgery. Appellants Counsel submission that the burden of proof imposed on the petitioners who alleged non-qualification of the 2nd Respondent to contest the election is discharged by establishing a prima facie case is misconceived. The standard of proof in criminal allegation is proof beyond reasonable doubt.
Appellants merely tried to put pieces of puzzle together and unfortunately they have not been able to sum up to prove the exhibit P4 is forgery.
Appellants Counsel submission that the 1st Respondent having not filed a pleading and having faired to cross examine the 2nd Appellant on the point of the 2nd Respondents non-qualification to contest the election is deemed to have admitted the averments in the petition and the Appellants reply. He is also deemed to have admitted the Appellants evidence on the point of non-qualification.
I agree with the Learned Counsel for the Appellants that evidence not challenged by a party that had an opportunity to do so should ordinarily be believed and awarded credibility. However such evidence must be capable of being believed even if not challenged. In other words, when the evidence is weak in content as not to assist the Court or manifestly unreasonable or is devoid of any substance as not to assist the court or manifestly unreasonable or is devoid of any substance as not to help resolve the matter in issue, it will be safe to ignore it as it does not attain standard of credibility. See the cases of OMEREGBE V. LAWANI (1980) 3 – 4 S.C. at 108 and NEKA BBB MANUFACTURING CO. LTD. V. ACB LTD. (2004) 2 N.W.L.R Part 858 Page 521. In essence the mere fact that the 1st Respondent did not file a pleading or cross examine the 2nd Appellant does not relieve the Appellants of the burden of proving their case on cogent and credible evidence before the court. He who asserts has the evidential burden to establish that which is asserted. See sections 135 and 136 of the Evidence Act. The lower Tribunal was right in its findings at page 255 of the record thus:
“As stated earlier the Petitioners were put in strictest proof of every allegation of fact contained in the Petition”. The exhibits tendered were not cogent enough to make the nomination form of the 2nd Respondent as candidate of the 3rd respondent a lie. The failure of the 2nd and 3rd respondents to call evidence on this issue does not relief the Petitioners of the evidential burden of proof which must be proof beyond reasonable doubt. They have failed to discharge this burden as water tight case of forgery has not been made. Clearly some of the exhibits tendered as analysed above have created doubt in our mind and we shall exercise the doubt in favour of the 2nd Respondent. We have no hesitation in believing the Content of the said nomination form and hold that the 2nd Respondent was duly sponsored by the 3rd Respondent and in the circumstance qualified to contest.”
The finding of the lower Tribunal is quite apt and we have no reason to upturn these findings. The sole issue is hereby resolved against the Appellants.
In the final analysis, the appeal lacks merit and it is accordingly dismissed. The judgment of the National and State Legislative Houses Election Petition Tribunal Abeokuta, Ogun State in Petition No.EPT/OG/FH/06/11 delivered on the 11th of October, 2011 is hereby affirmed. Parties are to bear their own costs.
STANLEY SHENKO ALAGOA, J.C.A., OFR: I read before now the judgment just delivered by my learned brother Fasanmi (J.C.A.). I agree with the reasoning and conclusion reached that the appeal be dismissed. I also dismiss same and abide by all the consequential orders made in the lead judgment including the order on costs.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the judgment of my learned FASANMI JCA, just delivered. I entirely agree with the reasoning and conclusion that the appeal be dismissed. I also dismiss the appeal and abide by all the consequential orders, inclusive of costs.
Appearances
A.A. YESUFA
GEORGE OYENIYI For Appellant
AND
O. J. AKINWALE
UCHE V. OBI For Respondent
