PEOPLES DEMOCRATIC PARTY & ANOR. V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
(2012)LCN/5207(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of March, 2012
CA/I/EPT/FH/15/2011
RATIO
LAW OF EVIDENCE: PROVING DOCUMENTARY EVIDENCE
I agree with the submission of both counsel to the 1st and 2nd-3rd respondents that the Polling Unit result sheets tendered were not specifically linked to the aspect of the case in respect of which the documents are being produced in evidence. In Jalingo vs. Nyame (1992) 3 NWLR (Pt. 231) p.538 the court held that: “A party relying on document in proof of his case must specifically relate each of such documents to the specific area of his case in respect of which the document is being tendered. It is an infraction to fair hearing for the court to do in chambers, what a party has not himself done in advancement of his case in the open court.” See also Ugochukwu vs. Co-operative Bank (1997) 7 SCNJ pg, 22; Enemuo vs. Dim (2002) FWLR (Pt. 126) 1004 at 1015 – 1016 paras E-B, Donkploaghe vs. Alamiehesigha (1999) 6 NWLR (Pt. 607) 502 et 512; INEC vs. Abubakar & Anor (2009) (Pt. 1143) 259 at 294 and Alao vs. Akano (supra). PER. ADZIRA GANA MSHELIA, J.C.A
THE POSITION OF THE LAW ON THE ISSUE OF LOCUS STANDI
The court cannot make a finding that will be prejudicial against a person that is neither before it nor party to the case and cannot in the same vein grant a relief which will affect a person who is not a party in the suit. See Okonkwo vs. Okagbue (1994) 9 NWLR (Pt.368) 301; Yeynold Construction Company vs. Reynold Breezing Brown & Anor. (1993) 6 NWLR (Pt.297) 122 and Oloriode vs. Oyebi (1984) 5 SC 1. PER. ADZIRA GANA MSHELIA, J.C.A
Justice
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
Justice
PEOPLES DEMOCRATIC PARTY (PDP) & ANOR.Appellant(s)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.Respondent(s)
ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment): This appeal was dismissed on the 6th day of December, 2011 and reasons for the dismissal were reserved to be given at a later date. I now give my reasons.
This is an appeal against the judgment of National and State Houses of Assembly Election Tribunal sitting in Abeokuta, Ogun State, delivered on 11th October, 2011, by which the Appellants petition was dismissed.
On the 9th of April, 2011, the 1st Respondent conducted elections in respect of various Senatorial Districts and Federal Legislative Houses in Ogun State. Both the 2nd Appellant Hon. Oladipupo Olatunde Adebutu and the 2nd Respondent Bukunola Taofeek contested for the Ogun West Senatorial District election, in Ogun State but under the platform of different Political Parties. The 2nd Respondent contested under the platform of the 3rd Respondent (A.C.N.) whereas the 2nd petitioner contested under the platform of the 1st petitioner (P.D.P.). At the conclusion of the election exercise, the 1st Respondent announced the results of the election which showed that the 2nd Respondent scored the highest number of lawful votes cast at the election. The 1st Respondent (INEC) declared and returned the 2nd Respondent as the winner of the election.
Dissatisfied with the return of the 2nd Respondent as the winner of the election, the Appellants filed this petition. The 2nd and 3rd Respondents duly filed their joint reply to the petition and joined issues with the Appellants on the averments contained therein. After the Pre-hearing session, the matter proceeded to trial. The 2nd Petitioner testified as PW1 and called two other witnesses PW2 and PW3 respectively. They tendered documents admitted in evidence as exhibits P1 – P24 and exhibits P2 – P17 polling Unit results.
At the close of Appellants’ case 2nd and 3rd Respondents opened their case and called two witnesses’ RW1 and RW2. They also tendered in evidence documents marked exhibits R1 – R4. At the conclusion of the matter the lower Tribunal in a well considered judgment dismissed the petition.
In accordance with the Practice Direction Parties exchanged briefs of argument. Appellant sought for leave to file additional grounds of appeal and same was granted by this court. The amended notice of appeal was filed on 28/11/11. The amended Appellants brief of argument was filed on 28/11/11. The 1st Respondent’s brief filed on 2/12/11 was deemed properly filed on 2/12/11. 2nd and 3rd Respondents’ brief was filed on 30/11/11. While Appellant’s reply brief was filed on 25/11/11.
At the hearing of the appeal all counsel adopted their respective briefs of argument. Appellants urged the court to allow the appeal, while 1st and 2nd-3rd Respondents urged the court to dismiss the appeal.
Appellants formulated five issues for the determination of this court. The issues are:-
(1) Whether the allegations of malpractice involving disenfranchisement and non-recording of number of voters on the queue at the commencement have not been established.
(2) Whether the allegation of non-recording of the number of voters on the queue at the commencement of voting ought to have been pleaded in the Petition.
(3) Whether the allegations of malpractice were not proved beyond reasonable doubt.
(4) Whether the petitioners have not established that the non-compliance with the provisions of the Electoral Act 2010 (as amended) by the 1st respondent through the unlawful inclusion of Mr. Waliu Taiwo in the election after the expiration of the period allowed for substitution of candidates substantially affected the result of the election.
(5) Whether the 2nd respondent won a majority of lawful votes cast at the election.
1st Respondent formulated one issue for determination that is “whether the petitioner has proved his case as required by law to sustain the reliefs claimed.”
The 2nd and 3rd Respondents also formulated one issue for determination. Whether the petitioner has proved his case as required by law to sustain the reliefs claimed.
I have examined the five issues formulated by the appellants. It is my considered view that issues 1 – 3 can conveniently be taken together and issues 4 & 5 can also be treated together. Although issue 2 could have been part of issue 1, I would treat them together as earlier stated.
The complaint under issues 1-3 relates to disenfranchisement of votes, non-recording of voters on queue
and failure to plead the number of voters on the queue, Appellants’ contention is that documentary evidence comprising the INEC result sheets for various polling units within the Senatorial District (Forms EC8A) were tendered and admitted in evidence as exhibits, P1(A) to (D); PZ (A)-(D); P3, P4 (A)-(B), P5 (A)-(B); P6 (A)-(H), P7 , P8 (A)-(C), P9 (A)-(G); P10 (A)-(D); P11 (A)-(O); P12 (A)-(C); P13 (A)-(F) P14 (A)-(C), P15 (A)-(B) P16, P17 (A)-(H). It was contended that these forms (INEC FORMS EC8A) are statutory forms and contain all the information as to what transpired at each polling Unit during an election. Appellants contended that the forms are all that the court require. Reliance was placed on the case of Terab vs. Lawan (1992) 3 NWLR (Pt. 231) 569 at 592 paras D – E. Appellants further submitted that the lower Tribunal was in error to have embarked on speculation as to why accredited voters on queue at the commencement of voting did not vote. See Orhue vs. N.E.P.A. (1998) 7 NWLR (Pt.557) 187 at 200 pars C – D.
Appellants also argued that the 1st Respondent failed to file reply to the petition and as such it is deemed to have admitted the allegation. See A.G. Anambra State vs. A.G. Federation (2005) 9 NWLR (Pt.931) 572 at 611. Appellants were also of the view that they have discharged the onus placed on them to plead facts and lead evidence in respect of two sets of results. Reliance was placed on Amuse vs. Odili (2005) 1 NRECN 114 at 116 para C.
On the failure of the Appellants to plead issue non-recording of the number of voters on queue it was contended that pleadings are to contain facts and not law or arguments or evidence. See Keremi vs. Abraham (2010) NWLR (Pt.1176) 443 at 460 paras. E – F. Appellants maintained that the allegations of malpractice were proved beyond reasonable doubt.
The 1st Respondent’s contention is that from the pleadings before the lower Tribunal the alleged admission does not exist in law. That 1st respondent cross-examined the Appellants’ witnesses: For admission in law to relieve the Appellants of their onus of proof of a fact, it must be shown that the facts so pleaded were admitted by all the respondents affected by the fact. See Abubakar vs. Yar’adua (2008) 19 NWLR (Pt.1120) at 171 pars F – G and Buhari vs. INEC 2 on (2008) 19 NWLR (Pt. 1120) 246 to 422. It was further contended that the reliefs of the Appellants in the petition, being declaratory, cannot be granted in default of defence or admission. See Dim vs. Ezemuo (2009) 10 NWLR (Pt. 1149) 353 at 380 – 381. 1st Respondent further submitted that Appellants did not plead any issue of over-voting and non-recording of the number of voters on queue at the commencement of voting in any paragraph of the petition. That the Tribunal rightly came to the conclusion that allegation of disenfranchisement itself and other criminal allegations were not proved as oral evidence proof of same was hearsay and the documents did not show the alleged malpractices. See Chime vs. Ezea (2009) 2 NWLR (Pt. 1125) 263 at 357 pars E – F and Yaro vs. Wada (2009) All FWLR (Pt. 472) 1084 at 1098 paras E – F.
On dumping of documents several authorities were cited in support of the position of law that a party intending to rely on a document in prove of his case has a duty to specifically relate such document to the aspect of the case in respect of which the document is being produced in evidence. See for example Muraga vs. Registered Trustees Recreation Club (2004) FWLR (Pt.190) 136 at 1380 – 1381 paras G – A; Jalingo vs. Nyame (1992) 3 NWLR (Pt.231) 538; INEC vs. Abubakar & Anor. (2008) 8 NWLR (Pt.1143) 259 at 294 and Alao vs. Akano (2005) 22 NSCQR (Pt.11) 867 at 884.
The submission of the 2nd and 3rd Respondents is in line with the submission of the 1st Respondent. It was submitted that the contention of Appellants that the allegations of non-compliance and malpractices were admitted and therefore need not be proved, does not represent the true position of the law. That for admission in law to relieve the Appellants their onus of proof of a fact, it must be shown, that the facts so pleaded were admitted by all the Respondents affected by facts. See Abubakar vs. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1 at 171 paras F – G; Buhari vs. INEC & Ors. (2008) 19 NWLR (Pt. 1120) 246 at 422 and Dim vs. Enemuo (2009) 10 NWLR (Pt.1149) 353 at 380 – 381. That the election of the 2nd respondent cannot be nullified without linking the alleged malpractices and non-compliance to him, Appellants’ case was denied and demolished under cross-examination. See Oforiette vs. The State (2009) 7 SCNJ 162 at 184 and Shell Petroleum Development Co. (Nig.) Ltd. vs. Abba (2005) All FWLR (Pt.257) 1533 at 1548. It was also argued that issue of over-voting and non-recording of number of voters on the queue at the commencement of voting was not pleaded in any paragraph of the petition. That since the allegations relied upon by the Appellants are criminal in nature they must be proved beyond reasonable doubt. See Abubakar vs. Yar’Adua (supra) at 171 paras D – E. As to allegations of disenfranchisement it was similarly argued same was not proved as oral evidence relied upon was hearsay evidence. Reliance was placed on cases of Buhari vs. Obasanjo (2005) All FWLR (Pt.273) Pg.1 at 111 – 112 at 164 and Buhari vs. INEC (supra) Pg. 1 at 568 paras E – A. That disenfranchisement is not proved by polling unit result sheets but voters’ register and voter’s cards of those disenfranchised including their oral testimony as to how they were disenfranchised. See Chime vs. Ezea (supra) and Yaro vs. Wada (supra).
I have considered the submissions of all counsel regarding the allegation of malpractices involving disenfranchisement and non-recording of number of voters on the queue at the commencement of voting as well as the authorities cited by each counsel. After considering the pleadings and evidence adduced, I hold the view that appellants have failed to establish the allegations. The lower Tribunal was right in my view when it stated that the documents which though speak for themselves did not show that the voters allegedly disenfranchised were not allowed to vote in the absence of direct oral evidence of those who were allegedly disenfranchised. In Chime vs. Ezea (supra) this court held:-
“Everyone deprived of voting must come and show his voters card, express the disappointment to exercise his constitutional right to pick a candidate of his choice. The comprehensive voters register must be tendered, authentic evidence of what happened at each polling booth must be given and this will not admit of any generalization of evidence for Local Government or constituency as it will not serve the purpose.”
See also Yaro vs. Wada (supra) and Audu vs. INEC & Ors. (2010) 13 NWLR (Pt.1212) 456 at, 523 paras C – D. It is evident that no voter was called to testify that he was prevented from exercising his constitutional right of picking a candidate of his choice.
I agree with the submission of both counsel to the 1st and 2nd-3rd respondents that the Polling Unit result sheets tendered were not specifically linked to the aspect of the case in respect of which the documents are being produced in evidence.
In Jalingo vs. Nyame (1992) 3 NWLR (Pt. 231) p.538 the court held that:
“A party relying on document in proof of his case must specifically relate each of such documents to the specific area of his case in respect of which the document is being tendered. It is an infraction to fair hearing for the court to do in chambers, what a party has not himself done in advancement of his case in the open court.”
See also Ugochukwu vs. Co-operative Bank (1997) 7 SCNJ pg, 22; Enemuo vs. Dim (2002) FWLR (Pt. 126) 1004 at 1015 – 1016 paras E-B, Donkploaghe vs. Alamiehesigha (1999) 6 NWLR (Pt. 607) 502 et 512; INEC vs. Abubakar & Anor (2009) (Pt. 1143) 259 at 294 and Alao vs. Akano (supra).
The lower Tribunal in my humble view rightly held that the evidence of PW8 on the issue of disenfranchisement of voters amounted to hearsay evidence. I have carefully perused the paragraphs of the petition. I agree with the lower Tribunal that the issue of non-recording of the number of voters on the queue at the commencement of voting was not pleaded by the appellants. Nowhere in the petition were the issue of over voting and non-recording of voters on queue mentioned. Any evidence relating to over-voting and non-recording of voters on queue goes to no issue.
The appellants had contended that the failure of 1st respondent to file reply amounts to admission of the allegation of malpractices complained of. It is trite that in cases where declaratory reliefs are claimed as in the present case and notwithstanding the fact that 1st respondent did not file a reply or call evidence to challenge the appellants’ evidence that failure of the respondent would not relieve the said appellant from satisfying the Tribunal by cogent and reliable proof of evidence in support of his claim or petition. Appellants should succeed on the strength of their own case and not on the weakness of the respondents’ case. See Agbaje vs. Fashola (2008) 6 NWLR (Pt.1082) 90 at 134 paras G-A. Therefore the heavy weather made by the appellants in which they seek to capitalize on the failure of the 1st respondent to file reply to the petition is clearly misconceived. Moreover it is on record that 1st respondent effectively cross-examined appellants’ witnesses. It is evident that appellants have failed to discharge the burden of proof placed on them by law. Accordingly, issues 1-3 are resolved in favour of the Respondents.
On the issue of participation of PPN candidate Mr. Waliu Taiwo in the election, appellants’ contention is that the unlawful participation substantially affected the result of the election. That there was vote splitting. 1st respondent contended that PPN and its candidate have been struck out from the petition as such the court cannot make a finding that will be prejudicial against a person that is neither before it nor a party to the case. In the same vein no relief can be granted against a non party. Reliance was placed on Okonkwo vs. Okogbue (1994) 9 NWLR (Pt. 368) 301; Reynold Construction. Company vs. Reynold Breezing Brown & Anor (1993) 6 NWLR (Pt. 297) 122 and Olorilde vs. Oyebi (1984) 5 SC 1. It was submitted that the participation of PPN candidate in the election cannot be a non-compliance in view of the provisions S.31 of the Electoral Act 2010 (as amended) by S.8(10) of the Electoral (Amendment) Act 2010. It was further submitted that appellants failed to prove by evidence the effect of PPN candidate’s participation in the election. That 2nd appellant admitted under cross-examination that he won in some wards. That the participation of the PPN candidate in the election would have made the Appellants to lose in the places where they won if the said participation actually had the effect of splitting their votes.
As regards the tabulated figures of scores of candidates referred to in the appellants’ brief, 1st respondent’s
counsel Uche Obi Esq. contended that the accuracy and correctness of the arithmetic calculations and scientific analysis of the electoral documents as contained in the Brief of Argument of the Appellants can only be tested under the fire of cross-examination. What the learned counsel did in the Brief of Argument extend far beyond legal arguments required of him and is now in the rearm of introducing evidence through the backdoor after the close of the case of both parties. 1st respondent urged the court to discountenance the figures stated in the Appellant’s brief of Argument. Finally it was argued that Appellants failed woefully to adduce admissible and credible evidence to prove their case as required by law to entitle them to the reliefs sought by them. Reliance was placed on Elias vs. Omo-Bare (1982) 5 SC 24 at 46 – 47; Olufeagba vs. Abdul-Raheem (2010) All FWLR (Pt.512) 1033 at 1074 para C and Abubakar vs. Yar-Adua (supra) at 139 para B.
On the issue of alleged non-compliance and its substantial effect 2nd & 3rd respondents contended that the participation of the said candidate of PPN in the election cannot be regarded as non-compliance on the part of the 1st respondent having regard to the provisions of S.31 of the Electoral Act 2010, as amended by Section 8(10) of the Electoral (Amendment) Act, 2010. It was further submitted that even if the participation of the candidate of PPN in the election were to be regarded as non-compliance (which is not conceded), the appellants failed to prove the effect on the result of the election, let alone its substantial effect. Reference was made to the testimonies of PW1 and PW2 under cross-examination on pages 403-404 and 408 of the record. That what the appellants contended was the validity of the nomination of PPN’S candidate.
As to the contention of the Appellants that section 138(1)(c) of the Electoral Act 2010, requires the 2nd respondent to score more that 50% of the votes cast at the election before he can be said to have scored majority of the votes, 2nd & 3rd respondents submitted that the interpretation given to the provision by learned counsel is contrary to the interpretation given to a similar provision by the Supreme Court in the case of Awolowo vs. Shagari & Ors (1979) 6-7 SCNJ 51. That what the law requires in relation to the elections into the legislative houses in Nigeria is simple majority and nothing more. That what the Appellants failed to prove by their pleadings and evidence cannot be proved by counsel’s submissions in their Brief of Argument. That counsel’s address cannot be a substitute for pleadings or evidence. See Chime vs. Ezea (supra) at P. 389 paras B – C; Okwejiminor vs. Gbakeji & Anor. (2008) 5 NWLR (Pt.1079) 172 at 223 paras A – B and Ugochukwu vs. Cooperative Bank (1996) 7 SCNJ page 22. Finally the 2nd and 3rd respondents urged the court to hold that Appellants have woefully failed to prove their case as required by law.
It is on record that 3rd and 4th Respondents names were struck out from the petition. Issue 4 relates to unlawful inclusion of Mr. Waliu Taiwo in the election and how it affected the result of the election. Certainly, the rules of fair hearing would be breached if issue 4 as it relates to the 3rd and 4th respondents, is resolved in their absence since they are not parties in this appeal. The court cannot make a finding that will be prejudicial against a person that is neither before it nor party to the case and cannot in the same vein grant a relief which will affect a person who is not a party in the suit. See Okonkwo vs. Okagbue (1994) 9 NWLR (Pt.368) 301; Yeynold Construction Company vs. Reynold Breezing Brown & Anor. (1993) 6 NWLR (Pt.297) 122 and Oloriode vs. Oyebi (1984) 5 SC 1.
Be that as it may since 1st respondent is a, party, I would only consider the aspect that involved it. On the issue of participation of PPN candidate, I agree with the submission of 1st respondent’s counsel that it cannot be regarded as a non-compliance on the part of the 1st respondent in view of the provisions of section 31 of the Electoral Act, 2010 (as amended) by section 8(10) of the Electoral (Amendment) Act, 2010. There is no evidence of votes splitting. Appellants’ complaint is based on speculation which is unacceptable. A court of law cannot conjecture or speculate. It is dangerous to do so in the absence of evidence. See Olufeagba vs. Abdul Raheem (2010) ALL FWLR (Pg. 12) 1033 at 1074 para C.
Appellants did not call witnesses to confirm that they voted for PPN candidate thinking that he was still PDP member. No such evidence came from people who voted during the election. I agree with the submission of 1st Respondent’s counsel that counsel’s address cannot be a substitute for pleadings or evidence. See Chime vs. Ezea (2009) 2 NWLR (Pt. 1125) at P.380 paras B – C, the court held as follows:-
“What is more, the Appellants counsel’s analysis heavily relied upon by the lower Tribunal has amounted to a counsel giving evidence from the bar which is most unacceptable. It is a well trite fundamental doctrine that the submission of a counsel in a case no matter how articulate or eloquent cannot serve as a substitute for pleadings and/or evidence.”
The Appellants have failed to prove the alleged non-compliance on the part of the 1st respondent. Issue 4 is therefore resolved in favour of the respondents.
Issue 5 is whether the 2nd respondent won a majority of lawful votes cast at the election. The contention of the Appellants is that the issue of whether a declared winner of an election was elected by majority of lawful votes cast is determined by the percentage of votes cast by that candidate in relation to total number of lawful votes cast at the election. It was submitted that the number of lawful votes cast in an election can only be determined when all votes vitiated by malpractice such as over voting and disenfranchisement is deducted from the total votes scored by the candidates in the election as required by law. Appellants made analysis on a chart. Appellants also contended that the majority of lawful votes should be determined by assessing who scored more than 50%, then that person has the majority of lawful votes cast at the election.
In response 1st respondent’s counsel contended that the accuracy and correctness of the arithmetic calculations and scientific analysis of the electoral documents as contained in the brief of argument of the learned counsel for the appellants can only be tested under the fire of cross-examination of those who purportedly carried out the exercise. It was argued that what Appellants’ counsel did in the brief was to extend far beyond legal arguments required of him and is now in the realm of introducing evidence through the back-door after the close of the case of parties. 1st respondents counsel urged the court to discountenance the figures stated in the Appellants, brief of Argument.
The 2nd and 3rd respondents also argued that Appellants are introducing evidence through the back-door as such the submission of Appellants’ counsel as regards this issue should be discountenanced. While I agree that in some instances charts may be used by the Tribunal or court, the chart introduced by the Appellants in this case can only be relevant where the allegations of disenfranchisement and over-voting have been proved. In the instant case Appellants did not prove the allegations as such, I find the chart irrelevant and same is discountenanced. The submissions of Appellants’ counsel as regards this issue cannot hold water. In the circumstance I hold that issue 5 fails and is dismissed. As rightly submitted by 1st and 2nd-3rd respondents’ counsel, Appellants have woefully failed to adduce cogent and credible evidence to prove their case as required by raw to entitle them to the reliefs sought.
From all what I have said above, it is my considered view that this appeal lacks merit. It is accordingly dismissed.
Appeal dismissed. I hereby affirm the judgment of the National and State Houses of Assembly Election Tribunal sitting in Abeokuta, Ogun State delivered on the 11th October, 2011.
No order as to costs.
STANLEY SHENKO ALAGOA, J.C.A. OFR: I read before now the judgment just delivered by my learned brother Mshelia (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.
MODUPE FASANMI, J.C.A: I had the advantage of reading in advance the lead judgment by my learned brother A.G. MSHELIA J.C.A.
I am in full agreement that the appeal lacks merit. I too dismiss the appeal and abide by the consequential order made in the lead judgment.
>
Appearances
A.A Oluyede,
T.O. AmaoFor Appellant
AND
Uche V. Obi,
Joseph Kulugh,
Gabriel Onojason Esq.
George OyeniyiFor Respondent
