CHIEF ALEX OLUSOLA OKE & ANOR V. DR. RAHMAN OLUSEGUN MIMIKO & ORS
(2013)LCN/6369(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of July, 2013
CA/AK/EPT/GOV/08/13
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ALEX OLUSOLA OKE
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. DR. RAHMAN OLUSEGUN MIMIKO
2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER, ONDO STATE
5. THE STATE RETURNING OFFICER FOR THE ONDO STATE GOVERNORSHIP ELECTION Respondent(s)
RATIO
WHETHER OR NOT ELECTION RESULTS ARE CORRECT UNTIL CONTRARY IS PROVED
Election into political office is a matter of getting the required number of votes as prescribed by law. In mature democracies, once an election is conducted according to law and a winner has emerged in compliance with the law, the loser like a good sportsman simply congratulates the winner. The will of the majority as required by law is regarded as sacrosanct. Power is recognised to belong to the people. In such mature democracies litigation is the exception and in some of them, unheard of. Our Electoral Act attempts to ensure that the will of the people which is expressed through the ballot box is difficult to upturn.
Our courts also hold that there is a presumption that an election result is correct until the contrary is proved. See Buhari vs. INEC (2008) 18 NWLR part 1120 p. 246. Where therefore a loser in an election is dissatisfied with the outcome of the election our extant Electoral Act tries to ensure that he has a genuine case by holding him up to rigorous standards of proof. Section 138 (1) of the Electoral Act 2010 as amended provides:
138(1) An election may be questioned on any of the following grounds, that is to say:
(a) That a person whose election is questioned was at the time of the election not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or noncompliance with the provisions of the Act.
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Section 139 (1) provides:
An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.
The issue being considered here has to do with the burden of the petitioners in respect of non-compliance with the provisions of the Electoral Act. In order to succeed, our courts have held that it must be established by the petitioner (1) that there was non-compliance with the Electoral Act; (2) that the non-compliance with the Electoral Act was substantial; and (3) that the substantial non-compliance substantially affected the result of the election. See: Buhari v. Obasanjo (2005) 8 NWLR part 910 p. 241. It would appear, having regard to S.139 (1) of the Electoral Act that there will also be the need for someone questioning an election to show that the election was not conducted substantially in accordance with the principles of the Act, not merely the provisions of the Act. PER DANIEL-KALIO, J.C.A.
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This is an appeal in respect of a Governorship Election Petition matter. A narrative of the salient facts is necessary. On the 20th of October, 2012, an election to the office of Governor took place in Ondo State. The 1st appellant Chief Dr. Alex Olusola Oke and the 1st Respondent Dr. Rahman Olusegun Mimiko were among the gubernatorial contestants in that election. The election was conducted by the Independent National Electoral Commission (INEC) the 3rd Respondent. While the 1st Appellant was sponsored in that election by a political party, the Peoples Democratic Party (PDP) the 2nd Appellant, the 1st Respondent was sponsored by another political party, the Labour Party (LP) which is the 2nd Respondent. At the end of the election, the 3rd Respondent returned the 1st Respondent Dr. Mimiko as the winner of the election having received a total number of 260,199 at the election. The 1st Appellant came second in the election with 155,161 votes in his favour. Dissatisfied with the declared result, the Appellants filed a Petition dated 10/11/2012 before the Governorship Election Tribunal in Ondo State. The Tribunal heard the Petition and came to the following conclusion in its judgment delivered on 3/5/2013:
“From what we have stated so far, we came to the conclusion that head or tail, the Petitioners have failed to discharge the burden on them to the extent that the Governorship Election conducted in Ondo State on October 20th, 2012 was not conducted substantially in accordance with the principles and spirit of the Electoral Act but (sic) would not establish that the alleged non-compliance and/or electoral malpractices substantially affected the outcome of the election. The burden does not shift to the Respondents to prove otherwise for the case of the Petitioners is completely lacking in merit. Accordingly this Petition No. EPT/OD/GOV/04/12 between Chief Alex Olusola Oke and 1 or V. Dr. Rahman O. Mimiko & 4 Ors is hereby dismissed”
Dissatisfied with the Judgment of the Election Tribunal, the Petitioners filed a Notice of Appeal dated 22/5/2013 in which they marshaled 37 grounds of appeal. They also sought the following reliefs from this Court:
1. An order of the Court of Appeal allowing the appeal.
2. An order of the Court of Appeal setting aside the judgment of the Governorship Election Tribunal delivered on 3rd of May, 2013.
3. An order of the Court of Appeal granting the reliefs sought by the Appellants in their Petition before the Governorship election Tribunal.
On 7/6/2013 Lateef Fagbemi SAN and a team of 12 other Counsel including one other senior Advocate of Nigeria, settled Appellants Brief of Argument. 4 days later, i.e. on 11/6/2013, Chief Wole Olanipekun SAN and a team of 15 other Counsel including six other Senior Advocates of Nigeria settled the Brief of Argument of the 1st Respondent. On the same 11/6/2013, the Brief of Argument of the 2nd Respondent was filed. The same was settled by a team of 8 Counsel led by Yusuf O. Ali, SAN. The team included two other Senior Advocates. Still on 11/6/2013 Chief Adegboyega Awomolo, SAN together with 18 other counsel including 2 other Senior Counsel settled the Brief of Argument of the 3rd – 5th Respondents. Appellants Counsel filed separately, replies to the briefs of the Respondents. The reply to 1st Respondents Brief was filed on 17/6/13, that in reply to the 2nd Respondent and 3 – 5th Respondents respectively were filed on 14/6/2013.
All the briefs having been filed, Counsel adopted their respective briefs before us on 25/6/2013. Appellants Brief of Argument was adopted by Dr. N.O. Oke SAN, that of the 1st Respondent was adopted by Wole Olanipekun SAN, that of the 2nd Respondent by Yusuf O. Ali SAN and that of the 3-5th Respondents by Dr. Onyechi Ikpeazu SAN.
It must be noted that before the briefs were adopted, counsel to the 1st and 2nd Respondents indicated that they had preliminary objections. They adopted their preliminary objections while Appellants Counsel adopted his response to the preliminary objections.
We shall consider the preliminary objections first. In the preliminary objection of 1st respondent, Chief Wole Olanipekun argued that grounds 1, 2 and 5 of the Appellants Notice of Appeal do not arise from the judgment of the Tribunal. He submitted that a ground of appeal which does not arise from the decision being appealed against is incompetent. He cited among other cases the case of Punch Nig. Ltd. V. Tribune Nig. Ltd. (2011) 12 NWLR part 1260 P. 162 at P. 173 – 174. He urged us to strike out issues 4 and 6 formulated from grounds 2 and 5 of the Notice of Appeal. Learned Senior Counsel argued that ground 14 of the Notice of Appeal is vague and that order 6 Rule 3 of the Court of Appeal Rules 2011 does not allow vague grounds, save the general ground that the Judgment is against the weight of evidence. He urged us to strike out grounds 1, 2, 3, 5, 12, 14 and 33 in the Notice of Appeal.
The 2nd Respondent’s Notice of preliminary objection is at P. 4-5 of the brief. In arguing the objection Yusuf O. Ali SAN contended that the Appellant did not distil any issue for determination from grounds 1, 3, 12, 13 and 37 in the Notice of Appeal and consequently, the said grounds of appeal have been abandoned should be struck out.
In his argument in response to the 1st Respondents preliminary objection, Appellants Counsel in his Reply Brief filed on 17/6/13 conceded that issues were not formulated from grounds 1, 3, 12 and 37 on the Notice of appeal and that for all intents and purposes those grounds of appeal stand abandoned. Learned Senior Counsel however did not concede on ground 2. With regard to ground 5 he was of the view that the ground is not elegantly worded but remained convinced that it deals with the impact of the invalid registrants that were found in the Election Register. He urged us that the case of Punch Nig. Ltd. V. Tribune Nig. Ltd. (Supra) and similar cases cited by the 1st Respondents counsel are irrelevant in this case.
Appellants counsel also responded to the 2nd Respondents preliminary objection in the Appellants Reply Brief filed on 14/6/2013. He conceded in his reply that grounds 1, 3, 12 and 37, of the grounds of appeal should be struck out since they would be deemed as abandoned.
With the appellants having conceded that issues were not formulated from
grounds 1, 3, 12 and 37 and having further conceded that the grounds are liable to be struck out, the grounds are hereby struck out for being abandoned. A ground of appeal that does not have issues founded on it is good for nothing. Having struck out the said grounds that were conceded, a brief consideration of the remaining grounds which form the subject of the preliminary objection will now be done. The complaint against ground 14 of the grounds of appeal by the 1st Respondent is that the ground is vague. While that may well be the case, we do not think that it is incompetent taking into account the particulars of the ground. The other ground of Appeal that formed the object of the preliminary objection of the 2nd Respondent is ground 13. It was argued by Learned Senior Counsel for the 2nd Respondent that ground 13 had no issue founded on it. It would not have issues founded on it because there is no ground 13 in the grounds of appeal. There was a clear oversight on this on the part of 2nd respondents counsel. The argument in respect of ground 13 is therefore otiose.
Having struck out grounds 1, 3, 12 and 37 of the grounds of appeal, the curtain is hereby drawn on the preliminary objection. It is appropriate to say here that in view of the decision in SPDC vs. Amadi (2011) SCM 183 @ 196 the preliminary objection ought to have been by way of a motion on notice. We now turn to the appeal proper.
The Appellants distilled 8 issues for determination in this appeal. The issues are: –
1. Whether having regard to the state of pleadings and the evidence before it, the trial Tribunal was not in grave error to have held that the Appellant failed to prove the allegation of non-compliance and that the election and return of the 1st Respondent was not vitiated. This issue was tied to grounds 6, 9, 11, 16, 17, 20 and 34 of the grounds of appeal.
2. Whether given the evidence before it the trial Tribunal was not in grave error in holding that the Appellants did not establish their entitlement to the majority of lawful votes cast at the election or the number of votes invalidated by non-compliance which will entitle the 1st appellant to be declared as duly elected or in the alternative, invalidate the elections. This issue was tied to grounds 22 and 23 of the grounds of appeal.
3. Considering the state of pleadings, evidence and the law, whether the Tribunal was not in error to have declined jurisdiction to entertain Appellants complaints with regard to unlawful entries of names or the contents of the Register of Voters used for the 20th October, 2012 Governorship election. This was tied to ground 10, 24, 25 and 32 of the grounds of appeal.
4. Was the trial Tribunal right when it held that the Appellants did not prove the impact of the invalid registrants in the Voters Register on overall election? This was tied to grounds 5, 26 and 31 of the grounds of appeal.
5. Whether the failure or refusal of the Tribunal to consider, review and properly evaluate Appellants evidence did not occasion a miscarriage of justice. This was tied to grounds 7, 14, 15, 21, 27 and 30 of the grounds of appeal.
6. Whether the Appellants have not discharged the burden of proof placed on them by law in respect of substantial non-compliance with the Electoral Act and the Manual and Guidelines for Election and whether the failure of the respondents (especially the 3rd-5th against whom the entire allegation of non-compliance were directed) to call evidence is of no-relevance to the strength and quality of evidence required for the Appellants to prove their case. This was tied to grounds 2, 28, 29, 35 and 36 of the grounds of appeal,
7. Whether the appellants have not demonstrated the documents before the Tribunal. This was tied to ground 33 of the grounds of appeal; and
8. Whether the trial Tribunal was not wrong when it held that PW45’s Statement on Oath constitutes hearsay and whether it did not fall into serious error occasioning a miscarriage of justice in its holding that the 1st Appellant did not indicate which part of his testimony relates to what he saw, what his agents told him and what he got from documents given to him. This was tied to grounds 4, 8, 18 and 19 of the grounds of appeal.
Appellants’ Counsel argued issues 1 and 2 together. He contended that during the pre-hearing conference, the Respondents successfully moved the Court to expunge paragraphs in the petition where criminal allegations were made against persons not joined as parties. The surviving pleadings he submitted, dealt with issues such as voting without accreditation; multiple accreditation and voting; differences between votes ticked as having been accredited and the number accredited and entered in Form EC8A (1); used and unused ballot papers exceeding number of ballot papers used in some polling units; unauthenticated allocations in some Form EC8A (1)’s; swapping of result sheets between units; undated, unsigned and unstamped forms EC8A (1) that did not bear the name of the Presiding Officer etc, all of which constituted variants of non-compliance as defined in INEC V. Oshiomole (2009) 4 NWLR part 1132 p.607. He submitted that S.138 (1) (b) (c) of the Electoral Act provides inter-alia that an election can be questioned on the ground that the election was invalid by reason of corrupt practices or non-compliance with the Electoral Act. He submitted that it was the appellants case before the Tribunal that votes in respect of which the prescribed procedures were not followed ought not be reckoned with in calculating the majority of lawful votes cast. He submitted that the 3rd – 5th Respondents countenanced votes cast in breach of the provisions of the Constitution, the Electoral Act and the Electoral Guidelines and Manual.
Learned Senior Counsel argued that evidence required to establish the incidents of non-compliance were documentary. He submitted that PW45 in his written deposition gave evidence of Appellants’ complaints with regard to Form EC8A and the Register of Voters. PW6, PW20, PW21, PW23, PW24, PW33, PW37, PW39 and PW41 – PW44 he submitted also gave evidence confirming voting without accreditation in their respective units. The Respondents he argued, gave no evidence in rebuttal of the evidence of PW45 which covered over 1,100 polling units. He submitted that the unchallenged evidence should have been relied upon by the Tribunal. He cited the case of Chami v. UBA Plc (2010) 6 NWLR part 1191 p. 474 at 496. In view of the unchallenged evidence, it was submitted that the Tribunal was wrong when it held that the Petitioners case with regard to non-accreditation or improper accreditation was not proved. The Tribunal he argued was also wrong when it held that the Petitioners were required to prove the allegation of non-accreditation and improper accreditation by calling as witnesses voters who must tender their voters card and the Register of Voters to show that there is no ticking on it to evidence accreditation. He submitted that under the extant INEC Election Manual, it is the Register of Voters and not the Voters card that is required to prove allegations of non-accreditation.
While agreeing that the Tribunal at P.68 of its judgment did say that it looked at the Register of Voters for 2012 and found that it contained markings to evidence accreditation, it was submitted that what the Tribunal held was too generalized. It was contended that the Tribunal was in grave error when it failed to acknowledge the unlawfulness of the votes and thus failed to expunge them from the result of the election.
Learned Senior Counsel submitted that the Tribunal ignored other specie of non-compliance which the Appellants proved. The ignored specie he submitted included instances of number of voters recorded in Form EC8A which were not derived from the Register of Voters, instances where the number of voters said to have been accredited as shown in Form EC8A were not derived from the Register of Voters etc. He submitted that had the Tribunal considered and excluded the invalid votes affected by the various variants of non-compliance, it would have come to the conclusion that it was the Appellants and not the 1st and 2nd Respondents that scored the majority of lawful votes cast at the election.
Learned Senior Counsel submitted in the alternative that given the volume of votes infested and vitiated by non-compliance and the persuasiveness thereof, it cannot be said that the election was conducted in a manner consistent with the principle of election by ballot. He urged us to hold that it was the 1st appellant that scored a majority of lawful votes cast at the election and he should be declared as the winner of the election. In the alternative, he urged us to hold that the result of the election was substantially affected by substantial non-compliance with the Electoral Act and therefore the result of the election should be nullified and a fresh election ordered to be conducted by the 3rd Respondent.
On his issue No.3 which is about the Tribunal declining jurisdiction to entertain complaints of unlawful entries of names or the content of the Voters Register used for the election, Learned Senior Counsel recalled that the appellants complained before the Tribunal that the 3rd Respondent without fresh registration, review or revision of the Voters Register, increased the number of the registrants in the Voters Register for the State from 1,533,580 voters in 2011 to 1,654,205 voters in 2012 and that the inserted names were not displayed as required by Sections 19 (1) and 20 of the Electoral Act 2010 as amended. He contended that although the Tribunal found as true the Appellants allegation that names of unqualified registrants were included in the 2012 Register of Voters, it however held that the complaint was outside its jurisdiction as it was a pre-election issue. The Tribunal he argued held that “while the content of the Register will be a pre-election matter to be adjudicated on at the Ondo State or Federal High Court, the impact of the Register on the overall election is the matter that is within our jurisdiction.” It was contended that the decision of the Tribunal was wrong and amounted to abdication of responsibility. Learned Senior Counsel referred to the Case of Abubakar V. Yar’Adua (2008) 8 NWLR part 1120 P.1 at P70 where it was held that “an election is a process spanning a period of time and comprises a series of actions from registration of voters to polling on polling day”. He also cited INEC V. Action congress (2009) 2 NWLR part 1126 p. 524 at 588; Ojukwu V. Obasanjo & Ors (2004) 12 NWLR part 886 p.169. He submitted that the Electoral Act does not contain any provision which limits non-compliance covered by S.138 to only things that occurred on the voting day. It was submitted that the Appellants allegation that the 2012 Voters Register was compiled contrary to the provisions of the Electoral Act is an allegation of non-compliance over which the Tribunal had jurisdiction. He urged as to resolve issue 3 in favour of the Appellants.
On issue 4 which is whether the Tribunal was right when it held that the Appellants did not prove the impact of the invalid registrants in the Voters register on the overall election, Learned Senior counsel submitted that contrary to the position held by the Tribunal, the impact of the illegal unauthorized entries in the 2012 Voters Register fraught the election with illegality and thus vitiated it. He submitted that it is unnecessary to establish that the illegal registrants voted or who they voted for and it is sufficient that the Register of Voters contained names of illegal and unauthorized registrants.
Learned Senior Counsel submitted that the provision of S.19 (1) of the Electoral Act which provides for the display of Voters Register for public scrutiny is mandatory and therefore giving soft copy of the Register of Voters to the political parties does not satisfy the mandatory provisions of S.19 (1) and 20 of the Electoral Act. It was submitted that the Tribunal was wrong when it held that the Appellants did not prove the impact of the illegal registrants on the overall election. He argued that the appellants having established that the Register of Voters used by the 3rd Respondent was corrupted by the insertion of illegal registrants, the burden of showing that same did not affect the result of the election shifted to the Respondents.
Learned Senior Counsel submitted that even if the inclusion of over 100,000 registrants were to be treated as supplementary voters list, the 3rd Respondents failure to publish same renders the Register void or a nullity, adding that the word shall in Sections 19 and 20 of the Electoral Act connotes compulsion. He cited the case of Katio V. CBN (1991) 9 NWLR part 214 p. 126 at p. 147; Macfoy V. UAC (1962) AC 152.
On issue 5 which is on an alleged failure of the Tribunal to review and properly evaluate the appellant’s evidence, we were referred to copious evidence given by the appellants through PW45. It was submitted that despite the glaring and revealing nature of the evidence adduced, the Tribunal failed to give consideration to them thereby concluding that the appellants did not give solid, concrete and credible evidence in support of their declaratory reliefs.
Learned Senior Counsel took upon himself the task of evaluating the evidence of some of the Appellants witnesses’ vis-‘a-vis their pleadings. The witnesses that he treated were PW6, PW20, PW21, PW23, PW24, PW33, PW34, PW37, PW39 and PW41. He argued that the Tribunal tried to denigrate the evidence of PW6, PW20 and PW21. He contended that the Tribunal did not review the evidence of PW23 and PW33 and also that the evidence of PW13 was at variance with the pleadings. It was submitted that the Tribunal was silent on the consequences of the unchallenged evidence of PW23, PW24, PW34 and PW37 in respect of incidences of non-compliance with the Electoral Act. Learned Senior Counsel contended that the Tribunal imputed to a number of appellant’s witnesses what they did not say. It was submitted that the failure to evaluate the evidence of the Appellants witnesses or to wrongly evaluate them led to a failure of justice.
On issue 6 which is on the discharge of the burden of proof to establish substantial non-compliance with the Electoral Act, Learned Senior Counsel submitted that it is trite law that the burden of proof lies on him who asserts. He continued that the standard of proof of a Petition that alleged noncompliance with the Electoral Act is one of preponderance of evidence. He referred to the case of Osunbor V. Oshiomole (2007) 8 NWLR part 1065 p.32.
It was submitted that the appellants adduced evidence in proof of non compliance and tendered Form EC8A and the Register of Voters. The respondents particularly 3rd Respondent it was submitted, failed to lead evidence. In the circumstances he urged, the scale of Justice should tilt in favour of the Appellants.
It was conceded that the declaratory reliefs sought by the appellants required strong and cogent evidence in order to succeed. It was submitted that in this case the Appellants gave oral and documentary evidence which were unchallenged and that all that is required to succeed is minimal evidence.
Turning to issue 7 which is whether the Appellants have not demonstrated the documents tendered before the Tribunal, Learned Senior Counsel referred in particular to the evidence of PW45 who he noted deposed to four written statements on oath spanning 247 pages. It was contended that in spite of the detailed and elaborate evidence of PW45, the Tribunal held that the documents he tendered were dumped on the Tribunal. Learned Senior Counsel submitted that once documents are tendered and admitted and a witness has explained their purport, the Court has a duty to consider and evaluate them. He cited Saidu V. Abubakar (2008) 12 NWLR part 110 & 2.01 at 298. It was submitted that the view of the Tribunal that the documents were dumped on it was perverse and led to its inability to fairly and properly appreciate the value of the documents thereby occasioning a miscarriage of justice. He urged the court to resolve issue 7 in the Appellants favour.
On issue 8 which has to do with the Tribunal’s holding that the Statement on Oath of PW45 constituted hearsay, learned counsel referred to paragraph 4 (1) and (3) of the Practice Directions which requires that evidence of fact shall be proved by written deposition and oral examination of witnesses in open Court. It was contended that PW45 made observations and discoveries that formed the basis of his testimony and same constitute direct evidence and cannot be said to be hearsay. He urged us to consider and ascribe appropriate weight to the evidence of PW45 and resolve issue 8 in the appellants favour.
Three issues were considered by the 1st Respondent as being the appropriate issues for determination in this appeal. The issues are: –
1. Considering the nature of the Appellants pleadings/claims vis-‘a-vis the evidence led, whether the lower Tribunal was not right in dismissing the Petition. This issue was tied to Grounds 1-5, 7, 8, 10, 12, 14, 18, 19, 22, 24, 25 – 28, 31 – 33, 35 and 36 of the grounds of appeal.
2. Whether having regard to the lawfully admissible documentary evidence and oral evidence, the lower Tribunal was not right in its conclusion that non-accreditation and/or improper accreditation were not proved to vitiate the election and return of the 1st respondent. This issue was tied to grounds 6, 9, 11, 15 17, grounds of appeal.
3. In view of the nature of the reliefs sought in the Petition being declaratory and the sui generis nature of election petitions, whether the appellants ought not to succeed solely on the strength of their own case. This issue was tied to ground 29 of the grounds of appeal.
Senior Counsel to the 1st Respondent argued issues 1 and 2 together. We were referred to p. 3134 to p. 3135 of volume 4 of the printed record where the Tribunal made a summary which highlighted incidences of non-compliance and corrupt practices listed therein as extracted from the Appellant Petition. The incidences highlighted he contended were acts of criminality such as violence, intimidation, ballot box stuffing, ballot paper and ballot box snatching, bribery, forgery, thuggery etc.
It was contended that there are three stages in proving the nullification of an election namely, non-compliance, non compliance which must be substantial and non-compliance which will substantially affect the result of the election.
Learned Senior Counsel submitted that the Tribunal analysed the evidence of the appellant’s witnesses as well as the documents they tendered and drew necessary inferences and legal conclusions therefrom. It was submitted that the evidence presented at the Tribunal was not capable of supporting the reliefs claimed.
Turning specifically to the issue of non-accreditation before voting, Learned Senior Counsel referred to the judgment of the Tribunal at p. 3164 where the Tribunal found that the allegation of an alteration was one that required proof beyond reasonable doubt, being a criminal act. Still on the issue of non-accreditation, he referred us to the finding of the Tribunal at p. 3113 of the printed record. It was submitted that the appellant did not appeal against the decision that allegation of the altering of electoral documents after election is one of fraud which requires proof beyond reasonable doubt. It was submitted that a decision of Court/Tribunal not appealed against is deemed accepted and remains binding on the parties and all and sundry. The case of Akere V. Gov. Oyo State (2012) 12 NWLR part 13 p. 246 at 278 was cited.
Learned Senior Counsel submitted that it is evident from the findings of the Tribunal that the contents of Form EC8A and the Voters Register introduced into evidence by the Appellants confirmed accreditation and voting.
Learned Senior Counsel referred to the evidence of PW45 and wondered how a single individual can give evidence in respect of hundreds of polling units. PW45 it was contended, admitted under cross-examination not only that he was not an agent in any polling unit during the election but that he fielded agents in all 3,007 polling units where elections were held in Ondo State. It was submitted that the evidence of PW45 is hearsay and therefore inadmissible. The case of Agballah V. Chime (2009) 1 NWLR part 1122 p. 373 was cited.
Learned Senior Counsel submitted that the appellants at pages 21 – 26 of their Brief of Argument tried to impugn the review of evidence by the Tribunal. We were referred to the evidence of PW6, PW20, PW21, PW23, PW37, PW39 and PW41 and it was submitted that the evidence of the witnesses cannot confer any benefit on the appellants.
On the injection of names into the Voters Register of 2012, learned counsel submitted that the Tribunal was right when it held that if indeed there were injections into the Register, it would amount to fraud and proof of it would be proof beyond reasonable doubt. The Tribunal it was submitted further held that it was unable to find any proof of fraud. The finding of the Tribunal in that regard was not challenged and must be deemed admitted, it was argued.
On the Voters Register, Learned Senior Counsel submitted that the Tribunal found that soft copies of the Voters Register were given to the Petitioner. Their finding it was contended was not challenged. He submitted that the Tribunal was right when it held that the complaint about injection of names in the Voters Register was a pre-election matter. Reference was made to Odedo V. INEC (2008) 17 NWLR part 1117 p. 554 at 602; Ibrahim V. INEC (1999) 8 NWLR part 614 p. 344 at 351.
Learned Senior Counsel submitted that the Appellants failed to identify one single injected voter, were unable to prove any injected votes and did not trace any injected voter that voted for the 1st Respondent. It was submitted that the case of injection of voters names is academic and unproven. Furthermore it was argued, there is no firm evidence as to the exact number of illegal injection.
Learned Senior Counsel submitted that the Electoral Act does not contain any provision for the display of supplementary Voters register and therefore the Tribunal was right to have relied on S.20 of the Electoral Act to hold that the supplementary voters integrated into the Voters Register should be published not later than 30 days. He referred to the definition of publish in the Black’s Law Dictionary, Deluxe 9th edition. The giving of soft copies of the supplementary Voters Register to the public including the Appellants before the election it was contended, substantially complied with the provision of the Electoral Act.
It was submitted that considering the gravity of the allegations of malpractices in hundreds of polling units, the appellants are duty bound to call witnesses from each of the polling units who must be registered voters at their respective polling units. The cases of Ayogu V. Nnamani (2008) 8 NWLR part 981 P. 160 at 187; Chime V. Ezeh (2009) 2 NWLR part 1145 p. 263 were cited.
Turning specifically to the evidence of PW45 it was reiterated that his evidence is hearsay. The case of Doma V. INEC (2012) 13 NWLR part 1317 p. 297 at 321 was cited in support. He urged the Court to resolve issue 2 in favour of the 1st Respondent.
On issue 3 which is whether the Appellants ought not to succeed solely on the strength of their own case, it was urged that a party seeking the nullification of an election must rely on the strength of his own case and not on the weakness of the Respondents case. The case of CPC V. INEC (2012) 18 NWLR part 1279 p. 493 at 539 – 540 was cited in support. We were urged to resolve issue 3 in favour of the 1st Respondent.
Yusuf O. Ali SAN identified on behalf of the 2nd Respondent, three issues for determination in this appeal; viz
1. Whether the Tribunal was not right in holding that the Appellants failed to prove beyond reasonable doubt the sundry allegations of commission of crimes and that the Appellants also failed to prove the various allegation of irregularity and non-compliance with the conduct of the Ondo State Governorship Election of the 20th October, 2012 and further that such irregularities if at all, substantially affected the results of elections and whether the Tribunal did not properly evaluate the evidence before it.
2. Whether the trial Tribunal was not correct in holding that all the allegations about injection of names into the Voters Register of 2012 was not proved and that the allegations was a pre-election matter in which the Tribunal has no jurisdiction.
3. Whether the trial Tribunal was not right given the facts and circumstances of the case, to have dismissed the case of the Appellants when most of the Appellants witnesses gave hearsay evidence, evidence which is at variance with pleadings and incredible, moreover when most of the documents they tendered were dumped on the Tribunal and not linked to the case of the Appellants.
It will not be necessary to review in detail the submissions of the Learned Senior Counsel to the 2nd Respondent because his submissions are not very different from the submissions of the 1st Respondents Counsel. That should be expected since they are in the same corner, the 2nd respondent the Labour Party, being the platform on which the 1st respondent contested the election.
Since there will be the inevitable nuances of opinion, snippets only of the submissions of Learned Senior Counsel for the 2nd Respondent will be highlighted.
Learned Senior Counsel argued issues 1 and 3 together. It was submitted that the allegations of non-compliance and electoral malpractices as pleaded in the petition are as intertwined as Siamese twins, so much so that allegations of commission of crimes are practically inseparable from the non-compliance thus requiring proof of same to be beyond reasonable doubt. The case of ACN vs. Nyako (2012) II MJSC 1 @ p.37 and 38 was cited. It was contended that the various allegations of crime in the petition were not proved let alone being proved beyond reasonable doubt.
It was noted that allegations of electoral malpractices and noncompliance with the provisions of the Electoral Act included injection of names in the Voters Register of 2011 with the connivance of the 1st respondent; physical attacks on voters and polling agents of the appellants; snatching of ballot boxes etc. It was submitted that the witnesses called by the appellants were largely discredited under cross-examination and consequently the petition was rightly dismissed as the appellants witnesses lacked credibility.
Learned Senior Counsel submitted that the appellant’s complaint that the Tribunal did not properly evaluate evidence before it was misplaced as the Tribunal was painstaking in evaluating the evidence before it.
Learned Senior Counsel submitted that it was wrong for the appellants to have dumped a large number of electoral forms and materials on the court without linking them to any specific aspect of the case. It was contended that there was no prima facie case made out by the appellants to warrant the respondents to put forward any defence. The case of Igbeke vs. Emordi (2011) 11 NWLR part 1204 p.1 @ p.49 was cited.
On his issue No. 3, the Learned Senior Counsel argued that the issue of content of the Voters Register is a pre-election matter dealt with under part 3 of the Electoral Act while Election is dealt with under Part 4 of the Act thereby indicating that the former is a pre-election matter. He urged the court to resolve issue 3 in favour of the respondents.
The issues for determination as identified by the 3rd – 5th respondents are:-
1. Whether the Learned Tribunal erred when it held that it had no jurisdiction to entertain issues bordering on the state of the Voters Register 2012 raised by the appellants.
2. Whether the Learned Tribunal properly evaluated the evidence led and documents tendered by the appellants at the trial; or whether the Learned Tribunal was right to have discountenanced the evidence of the witnesses of the appellants and the documents tendered by the appellants.
3. Whether the appellants proved substantial non-compliance with the Electoral Act, the INEC manual and Guidelines for Election and established that the said non-compliance they alleged altered the result of the Governorship Election held in Ondo State on the 20th October, 2012 substantially.
There will be no need to review the arguments proffered by the 3rd – 5th respondents’ counsel as they are in the same line of reasoning as the submissions of counsel to the other respondents.
The appellants filed reply briefs in response to the arguments of all the respondents. Needless to say, the appellants tried to show that the respondents are wrong in their submissions.
Upon a perspicacious reading of the issues for determination in this appeal as set out by all the parties, it is clear that there is a diversity of opinion on what the issues are particularly as regarding the appellants on one hand and the respondents on the other hand. It is settled law that the court can reformulate the issues formulated by the parties or counsel in order to give them precision and clarity. See: Unity Bank Plc vs. Bouari (2008) 7 NWLR part 1086 @ p.372. I think that the issues for determination in this appeal can safely be said to be as follows:
1. Whether the appellants did not discharge the burden of proof on them in respect of substantial non-compliance with the Electoral Act.
2. Whether the Tribunal was right to have refused to consider the matter of the injection of new names in the Voters Register on the ground that it lacked jurisdiction, the same being a pre-election matter.
3. Whether the Tribunal properly evaluated the evidence before it and in particular, the evidence of PW45 which it held to be hearsay.
Now to the first issue which is whether the appellants did not discharge the burden of proof on them in respect of substantial non-compliance with the Electoral Act.
Election into political office is a matter of getting the required number of votes as prescribed by law. In mature democracies, once an election is conducted according to law and a winner has emerged in compliance with the law, the loser like a good sportsman simply congratulates the winner. The will of the majority as required by law is regarded as sacrosanct. Power is recognised to belong to the people. In such mature democracies litigation is the exception and in some of them, unheard of. Our Electoral Act attempts to ensure that the will of the people which is expressed through the ballot box is difficult to upturn.
Our courts also hold that there is a presumption that an election result is correct until the contrary is proved. See Buhari vs. INEC (2008) 18 NWLR part 1120 p. 246. Where therefore a loser in an election is dissatisfied with the outcome of the election our extant Electoral Act tries to ensure that he has a genuine case by holding him up to rigorous standards of proof. Section 138 (1) of the Electoral Act 2010 as amended provides:
138(1) An election may be questioned on any of the following grounds, that is to say:
(a) That a person whose election is questioned was at the time of the election not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or noncompliance with the provisions of the Act.
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Section 139 (1) provides:
An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.
The issue being considered here has to do with the burden of the petitioners in respect of non-compliance with the provisions of the Electoral Act. In order to succeed, our courts have held that it must be established by the petitioner (1) that there was non-compliance with the Electoral Act; (2) that the non-compliance with the Electoral Act was substantial; and (3) that the substantial non-compliance substantially affected the result of the election. See: Buhari v. Obasanjo (2005) 8 NWLR part 910 p. 241. It would appear, having regard to S.139 (1) of the Electoral Act that there will also be the need for someone questioning an election to show that the election was not conducted substantially in accordance with the principles of the Act, not merely the provisions of the Act.
The appellants counsel gave a litany of the infractions of the Electoral Act by the respondents in paragraph 4.2 of his Brief of Argument. They include among others:
(1) That people were allowed to vote without accreditation;
(2) That there was multiple accreditations and voting;
(3) That the number of voters recorded is not the same as the number ticked to have voted;
(4) That the number of voters ticked to have been accredited in the voters Register differs from the number of accredited voters entered on Form EC8A (1);
(5) That the number of used and unused ballot papers entered in Form EC8A (1) exceeded the number of ballot papers issued in the affected polling units;
(6) That alternations were made on some Form EC8A (1) without same being authenticated;
(7) That there was swapping of Results Sheets;
(8) That Forms EC8A (1) were not signed, stamped and dated and did not have the name of the presiding officer;
(9) That unidentified persons and objects were accredited and voted;
(10) That unknown Form EC8A (1) having no serial number were used in the election;
(11) That Form EC8 A (1) did not reflect the vote of some of the political parties that participated in the election; and
(12) Failure to use the appropriate Register of voters to conduct the election.
It was for the appellants to prove these very serious acts of infraction of the Electoral Act before the Tribunal. Clearly majority if not all the acts of infraction of the Electoral Act enumerated above were criminal in nature and therefore required a higher standard of proof, that is, proof beyond reasonable doubt.
It must be clear by now that the courts are not interested in the altogether common penchant for crying wolf but insist on proof, hardnosed and concrete proof of allegations. No less is required in an Election Petition. The Statement of Law in the case of Abubakar v. Yar-Adua (2008) 19 NWLR part 1120 p.1 @ p.155 cited by the 1st respondents’ counsel in paragraph 6.7 of his address summarises the stance of our courts with regard to proof in election matters. Said the court:
“A petitioner who contests the legality or lawfulness of votes cast at an election and subsequent return must tender in evidence all the necessary evidence by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify that the irregularity or unlawfulness substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election not those who picked that evidence from an eye witness. No. They must be eye witnesses too. Both Forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of votes; wrongdoings and irregularities which affected substantially the result of the election.”
Having been satisfied that the Tribunal properly weighed and evaluated the evidence led by the appellants, I find no reason to disturb the finding of the Tribunal. Issue 1 is resolved against the appellants.
Issue 2 is whether the Tribunal was right to have refused to consider the matter of the injection of new names in the Voters Register on the ground that it lacked jurisdiction, the same being a pre-election matter.
On the issue of whether the trial Tribunal was not correct in holding that all the allegations about injection of names into the Voters Register of 2012 was not proved and that the allegations were a pre-election matter which the Tribunal had no jurisdiction over, I think that since the Register of Voters was used in the election as part of the election process and therefore a material in the election and since the Tribunal has jurisdiction to deal with matters arising from the election, it had jurisdiction to deal with the complaint of whether the Register used was the proper Register used to the extent that additional names had been introduced or injected into it.
The complaint of the appellants was that the entry of the additional names was not done in compliance with the Act and that the Register used was not displayed or published as required by the Electoral Act. In the case of Ojukwu v. Yar’Adua & Ors. (2009) 12 NWLR part 1154 p.50, the election was questioned on the ground among others, that the Voters Register was not displayed or published in accordance with the Electoral Act. It is noteworthy that the petition was entertained and determined. The court did not decline jurisdiction in the matter. Even though the tribunal had jurisdiction, it does not appear to me that the entry of the additional names and the non-display or publication of the Voters Register as required by the Electoral Act was a non-compliance that substantially affected the outcome of the election.
The third and final issue is whether the Tribunal properly evaluated the evidence before it and in particular, the evidence of PW45 which was held to be hearsay.
The issue of evaluation of evidence has been dealt with under Issue 1. What remains is to consider the correctness of the holding of the Tribunal with regard to the evidence of PW 45. This is what the Tribunal held concerning his evidence.
“PW 45 cannot give evidence of events that took place in all the other polling units in the State. PW 45 said he was going to rely on the report of experts but he did not call any expert and answered that he himself is not an expert. We therefore agree with the submission of Learned Senior Counsel for the 1st respondent at paragraph 4.72 at p.30 of his final address and indeed of all the other respondents that the statement on oath of PW 45 is a bundle of primary and secondary hearsay.”
From the submission in the appellants’ Brief of Argument at p.8 thereof, PW 45 has to be more than a superman. According to the submission, the “comprehensive” evidence of PW 45 covered 372 polling units across 10 Local Governments; it covered 659 polling units across 7 Local Government Areas and also covered 591 polling units across the State. It is only an omnipresent being that can give first hand evidence of all that transpired in the hundreds of polling units. Mere mortals can only give second hand evidence about what happened in distant places. The evidence given by PW 45 can only be hearsay. The Tribunal was right to have so held. The third issue is also resolved against the appellants.
The appeal has no merit. Perhaps when our democracy matures a loser in an election will do the right thing by congratulating his opponent. May that day come soon? Having held that the appeal has no merit, it is hereby dismissed.
I make no award as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I Agree.
ADZIRA GANA MSHELIA, J.C.A.: I Agree.
EJEMBI EKO, J.C.A.: I Agree.
EMMANUEL AKOMAYE AGIM, J.C.A.: I Agree.
Appearances
N. O. Oke, SAN
Yinka Orokoto, Esq.
Yomi Akinfemiwa, Esq.
Olusola Dare, Esq.
Olusola Oke, Esq.
Mafimisebi Idowu, Esq.
Prince John Ola Mafo, Esq.
Ijabadeniyi Supo, Esq.
Olumide Ogunleye, Esq.
A. O. Oladele, Esq.
Oluwaseyi Bamigboye, Esq.
Akintunde Adewurri, Esq.
Timilehin Oguntuase, Esq.
O. O. Odumosu (Miss)
M. E. Ejims (Miss)For Appellant
AND
Chief Wole Olanipekun, OFR, SAN,
Ricky Tarfa, SAN
Adebayo Adenipekun, SAN
John Baiyeshea, SAN
Abayomi Akamode, Esq.
Kunle Ijalana, Esq.
Abimbola Ajileye-George
Sesan Dada
Olumide Ogunje
Akeem Olaniyan
Thompson Akinyemi
Y. A. Dikko
Olabode Olanipekun
Wole Okenile
Adedayo Adesina
Kingsley Jephter
Oyebanji Oluwatobi
Duduyemi Ajewole
Stella C. Uda – For 1st Respondent
Yusuf O. Ali, Esq., SAN
A. O. Adelodun, SAN
Prof. Wahab Egbewole
Ayo Olarenwaju, Esq.
K. K. Eleja, Esq.
R. O. Balogun, Esq.
A. O. Abdulkadir, Esq.
A. S. Addullahi Esq.
Taofiq Alubarika, Esq.
Hammad Muhammad, Esq.
Idris Suleimon, Esq. – For 2nd Respondent
Dr. Onyechi Ikpeazu, SAN
Onyinye Anumonye, Esq.
Wale Balogun
Chioma Wokeocha (Mrs.)
Ayotunde Ogunleye, Esq.
Peter Nwatu, Esq. – 3rd – 5th RespondentsFor Respondent
