MUYIDEEN ABDUL-RAHEEM TEJUMADE & ANOR v. OGUNYEMI MICHAEL OLANREWAJU & ORS
(2015)LCN/8051(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of December, 2015
CA/L/EP/HA/1159/15
RATIO
PRACTICE AND PROCEDURE: CONSIDERATION OF A RELATIONSHIP; THE DUTY OF THE COURT TO CONSIDER ALL THE CORRESPONDENCE IN ORDER TO DECIPHER THE RELATIONSHIP
It has been settled that in the consideration of a relationship where series of correspondences have been written, it is the duty of the court to consider all the correspondence in order to decipher the relationship, see Udeagu v. Benue Cement Co. (2006) 2 NWLR (Pt. 965) 600. In the same vein, where more than one document govern a relationship, no single document should be considered in isolation or be the sole determinant. per. AMINA ADAMU AUGIE, J.C.A.
EVIDENCE: PRESUMPTION OF REGULARITY; WHICH OF THE PARTIES HAS THE ONUS OF REBUTTING THE PRESUMPTION OF REGULARITY
Furthermore, that presumption of regularity, which enured in favour of 3rd Respondent in its conduct of 2nd Respondent’s primaries is rebuttable, and the onus of rebutting same falls squarely on anyone, who faults its regularity to prove otherwise; and that the Appellants failed to do this, and as such, the 2nd Respondent’s primaries is proper, regular and valid in the eyes of the law – Hashidu v. Goje [2003] 15 NWLR (Pt. 843) 352 and Nadabo v. Dabai [2011] 7 NWLR (Pt. 1245) 155 cited in support. per. AMINA ADAMU AUGIE, J.C.A.
EVIDENCE: CONTRADICTORY EVIDENCE; WHEN IS A PIECE OF EVIDENCE SAID TO CONTRADICT
It is trite that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated. per. AMINA ADAMU AUGIE, J.C.A.
EVIDENCE: HOSTILE WITNESS; WHEN SHOULD THE APPLICATION TO TREAT A WITNESS AS HOSTILE AND THE EFFECT OF THE FAILURE TO MAKE SUCH APPLICATION
The decision may be that of the Court, but it is settled that an application to treat a witness as hostile should be made as soon as it is obvious that he is hostile or his testimony will be adverse to the interest of the party. Thus, a party who fails to take such steps will be bound by the evidence of such witness, and will not be allowed to complain on appeal – see Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 SC, where Tobi, JSC observed-
“The Evidence Act anticipated this type of situation and made provision in the Act for a party to treat his own witness as hostile in relevant cases. – – In my view, the Appellants had all the opportunity to take advantage of Section 207 (Section 230) of the Evidence Act Since they did not take advantage of the provisions of the Evidence Act, they cannot repair the damage done at the trial in this Court. This Court has not the mechanical tool to effect any repairs.” per. AMINA ADAMU AUGIE, J.C.A.
EVIDENCE: THE EFFECT OF AN EVIDENCE GIVEN BY A WITNESS AGAINST A PARTY THAT CALLED HIM
What is more, where a witness gives evidence against a party that called him, such evidence will be regarded as one against interest, and unless explanations are given to the Court’s satisfaction that such admission should not be regarded, due weight shall be given to it as such – see Odi v. Iyala (supra), Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517. per. AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1. MUYIDEEN ABDUL-RAHEEM TEJUMADE
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. OGUNYEMI MICHAEL OLANREWAJU
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RESIDENT ELECTORAL COMMISSIONER
FOR LAGOS STATE, INEC Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This is one of the Appeals against the decision of the National Assembly and State House of Assembly Election Petitions Tribunal, Lagos State. The 1st Appellant challenged the election of the 1st Respondent, who was declared by the 3rd Respondent, as having won the election to the State House of Assembly representing Ojo Local Government Constituency 2. The results of the election, as declared by the 3rd Respondent, showed that the 1st Respondent, who was sponsored by APC, got a total of 10,121 votes, while the 1st Appellant of PDP got a total of 7,631 votes. The Appellants challenged the outcome of the election on two Grounds –
1. That a person whose election is questioned (i.e. 1st Respondent) was, at the time of the election, not qualified to contest the election. S. 139(1)(a) of the Electoral Act 2010 (As Amended)
2. That the State House of Assembly Election held on 11/4/2015 as affect the Ojo Local Government Constituency 2 was invalid by the reason of corrupt practices or non-compliance with the Provision of this Act. (Section 138(1)(b) of the Electoral Act (As Amended).
The Appellants’ contention
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1
in respect of Ground one of the Petition is that the party primaries of APC, the 2nd Respondent, was held in less than a period of 21 days required by Section 85(1) of the Electoral Act . They averred that he was not properly nominated at the said primaries, the said primaries having been held in contravention of the law; that he, having not been nominated in a primary recognized by law, is deemed not to have been presented by the 2nd Respondent, and as such was not on the ballot and did not participate in the House of Assembly Election, therefore, all votes purportedly ascribed to him as the candidate of APC, the 2nd Respondent, in the Election held on 11/4/2015?are wasted votes.
As to Ground two, they averred in paragraph 20 of the Petition that that there were many irregularities in respect of the use of card readers at the election, including non-use of card readers even where available, and non-availability of same in some polling units, and in paragraph 21 – that the said irregularities grossly affected the outcome of the said result. In paragraph 28, they prayed the Tribunal for the following reliefs –
A. A DECLARATION that the 2nd Respondent as a
2 registered Political Party has the obligation under the law to give at least 21 days notice to the 2nd Respondent before conducting the primaries that produced 1st Respondent as its candidate in the State House of Assembly Election held on 11/4/2015.
B. A DECLARATION that 2nd Respondent’s letter dated 18/11/2014 with Reference: APC/NHDQ/INEC/19/014/88 served on the 3rd Respondent on the same date is the only subsisting Notice given to the 3rd Respondent.
C. A DECLARATION that the 2nd Respondent’s notice as contained in its letter dated 8/11/2014 with Reference APC/NHDQ/INEC/19/014/88 did not meet up with the requirement for 21 days notice as prescribed by Section 85(1) of Electoral Act 2010 (as amended) having held the primary that produced the 1st Respondent on 1/12/2014.
D. A DECLARATION that 2nd Respondent’s letter dated 16/11/2014 with Ref: APC/NHDQ/INEC/19/014/88 purported to have given notice to the 3rd Respondent as required by Section 85(1) of the Electoral Act – – is void same having been given in contravention of Section 85(1) of the Electoral Act – – .
E. A DECLARATION that the purported notice given
3 to the letter dated 18/11/2014 with Ref: APC/NHDQ/INEC/19/014/88 does not amount to notice in law, same having fell short of the 21 days as required by Section 85(1) of the Electoral Act – –
F. A DECLARATION that the 1st Respondent being the candidate of the 2nd Respondent in the Election conducted by the 3rd Responded for Ojo Local Government Constituency 2 in the State House of Assembly election, held on 11/4/2015 was not on the ballot and did not participate in the said election as the notice of the Party Primaries, which produced the 1st Respondent as the candidate of 2nd Respondent, is null and void.
G. An ORDER of this Hon. Tribunal nullifying the declaration and return of the 1st Respondent being the candidate of the 2nd Respondent as the winner in the election conducted by the 3rd Respondent for Ojo Local Government Constituency 2 in the State House of Assembly Election held on 11/4/2015 on the ground that the 1st Respondent ought not to and was not qualified to have contested the said election having violated Section 85(1) of the Electoral Act .
H. A DECLARATION that the 1st Petitioner as the candidate of the 2nd Petitioner having scored the highest
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4 number of the lawful votes of 7,637 cast in the election conducted by the 3rd Respondent for Ojo Local Government Constituency 2 of Lagos State House of Assembly Election held on 11/4/2015 amongst all candidates eligible to contest in the said election, be declared the winner and duly returned for Ojo Local Government Constituency 2.
I. An ORDER of this Hon. Tribunal declaring the 1st Petitioner as the candidate of the 2nd Petitioner having scored the highest number of the lawful votes of 7,637 cast in the election conducted by the 3rd Respondent for Ojo Local Government Constituency 2 of Lagos State House of Assembly Election held on 11/4/2015, amongst all candidates eligible to contest in the said election, be declared the winner and duly returned for Ojo Local Government Constituency 2.
J. An ORDER?of this Hon. Tribunal directing the 3rd Respondent to withdraw forthwith the Certificate of Return issued to the 1st Respondent as candidate of the 2nd Respondent in the election conducted by the 3rd Respondent for Ojo Local Government Constituency 2 of State House of Assembly Election held on 11/4/2015 and to issue the 1st Petitioner as candidate of the 2nd
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5 petitioner forthwith with Certificate of Return as the winner of the Election conducted by the 3rd Respondent for Ojo Local Government Constituency 2 in State House of Assembly held on 11/4/2015.
ALTERNATIVELY;
K. A DECLARATION of this Hon. Tribunal nullifying the election and results emanating therefrom with respect to the aforementioned Polling Units and satellite Voting Points.
L. An ORDER of this Hon. Tribunal directing the 3rd Respondent to conduct fresh election in the aforementioned Polling Units and Satellite Voting Points or any other affected Polling Units as affected by the order of this Hon. Tribunal.
The said Petition was accompanied with Written Statements on Oath, summary of results, Forms EC8C(1), Forms EC8B(1), Forms EC8A(1), and the letter dated 18/11/2014 with Ref. No. APC/NHDQ/19/014/88.
Upon receipt of the Petition, the 1st, 2nd, 3rd and 4th Respondents filed replies thereto. The 1st and 2nd Respondents stated in paragraph 1 of their Reply that they shall at or before the trial of the Petition pray the Tribunal to dismiss and or strike out the petition on the grounds that-
(a) The Petitioners lack locus standi to present the Petition.
?(b) The
6 Petitioners did not meet all the conditions precedent to the filing of the Petition as it contains no valid ground recognized by the Electoral Act – –
(c) The entire Petition as presently constituted is incompetent and that the Tribunal lacks jurisdiction to entertain the Petition.
Upon the close of pleadings, and upon the Application by the Appellants, pre-trial conference took place, wherein the 1st and 2nd Respondents’ Applications challenging the Petition were heard, and the lower Tribunal reserved its Ruling until the Judgment in the Petition. At the trial itself, the Appellants called six Witnesses, including the 1st Appellant as PW1, and he tendered a number of Exhibits in evidence including Exhibit P3, [2nd Respondent’s letter to 3rd Respondent dated 18/11/2014]; it reads –
“REVISED DATE FOR THE CONDUCT OF PRIMARIES
Please be advised that our party has rescheduled dates for conduct of Primaries as follows:-
1. State Houses of Assembly – 1st of December, 2014
2. Governorship – 4th December, 2014
3. House of Reps – 7th December, 2014
4. Senate – 8th December, 2014
5. Presidential – 10th December, 2014
We expect that your officials will be there to witness the
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7 rescheduled process. Please accept the assurances of our highest esteem. Thank you.”
Hon. Joel Tudonu, the 2nd Respondent’s Party Chairman for Ojo LGA, testified for 1st and 2nd Respondents as RW1. and tendered Exhibit R1, [2nd Respondent’s letter to 3rd Respondent dated 19/9/2014; it reads –
“NOTICE OF SPECIAL CONGRESSES FOR THE NOMINATION OF CANDIDATES – 2015 GENERAL ELECTIONS.”
Please be advised that our Party has scheduled to hold Primary Elections for the Nomination of Candidates in respect of the 2015 General Elections as follows:
1. State Houses of Assembly – Saturday, 8th November, 2014
2. Governorship – Saturday, 15th November, 2014
3. House of Reps – Saturday, 24th November, 2014
4. Senate – Saturday, 29th November, 2014
5. Presidential – Saturday, 2nd November, 2014
RW2, Adedoyin Johnson Oluseun, a staff of the 3rd Respondent, testified on behalf of the 3rd and 4th Respondents, and he tendered Exhibit RR1 [2nd Respondent’s letter to 3rd Respondent dated 5/11/2014] it reads –
“RE: NOTICE OF SPECIAL CONGRESSES FOR THE NOMINATION OF CANDIDATES – 2015 GENERAL ELECTIONS
Please be advised that with respect to the notice of our special congress for the nomination of
8 our candidates, we wish to notify you of postponement of same to dates which shall be communicated soon. Please accept the assurance of our highest esteem. Thank you”.
The lower Tribunal with Oriji, J., as Chairman, and Etuk, J., and Dabo, J., as Members, delivered its Judgment, which included the three Rulings, on 21/10/2015. It overruled the Preliminary Objection dated 23/6/2015 and another Preliminary Objection dated 22/6/2015, and in respect of the Application filed by the 1st and 2nd Respondents on 20/6/2015, it held –
“Paragraphs 1, 2, 3, 4, 5, 7 and 12 of the Petitioners’ Reply to the 1st and 2nd Respondents’?Reply to the Petition amount to amending or adding new facts to the contents of the Petition filed by the Petitioners. Having found the said paragraphs of the Petitioners’ reply to be in violation of the provisions of the First Schedule to the Electoral Act we hereby strike out paragraphs 1, 2, 3, 4, 5, 7 and 12 of the Petitioners’ Reply to 1st and 2nd Respondents’ Reply to the Petition, paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 19 of the further statement of Muyideen Abdul-Raheed Tejumade, the list of the further documents and the documents
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9 attached therewith. However, in the event that we are wrong in our above decision – and bearing in mind that this Tribunal is not a final Court – we will consider the said paragraphs of the said Reply and the paragraphs of the said further statement on oath of the 1st Petitioner in the determination of the Petition.”
In its “Judgment on the Petition”, the Tribunal identified the following as the “real issues” that called for determination in the Petition before it –
1. Whether from the evidence before the Tribunal, the Petitioners have proved that the 2nd Respondent (APC) did not comply with Section 85(1) of the Electoral Act before the conduct of its primary election, which led to the emergence of the 1st Respondent as its candidate for Ojo Constituency 2 seat in the Lagos State House of Assembly Election held on 11/4/2015.
2. Whether the Petitioners by cogent and credible evidence proved the irregularities or non-compliance complained of in the 30 polling units to warrant the nullification of the election in the said poling units, and consequently, the nullification of the election of the 1st Respondent and declaration of the 1st Petitioner as the winner of the
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10 11th April, 2015 election in Ojo 2 Constituency of Lagos State.
As regards Issue 1 it formulated, the lower Tribunal observed as follows –
“- – The only relevant evidence tendered by the Petitioners is Exhibit P3, i.e. the 2nd Respondent’s letter to the 3rd Respondent dated 18/11/2014 in proof of their allegation that the notice given by the 2nd Respondent to the 3rd Respondent for its primaries held on 1/12/2014 for the State House of Assembly Election was held less than 21 days and therefore a nullity. The Respondents relied on the 2nd Respondent’s letter to the 3rd Respondent dated 19/9/2014 to prove that the 2nd Respondent complied with Section 85(1) of the Electoral Act in the conduct of the primary election. In addition, PW2 on behalf of the 3rd and 4th Respondents tendered the 2nd Respondent’s letter to the 3rd Respondent dated 5/11/2014 (Exhibit RR2). These three letters (signed by Hon. Mai Mala Buni) are crucial in the resolution of issue one – – – -“.
It went on to hold as follows at pages 942-945 of the Record -“There is no doubt that by letter dated 19/9/2014, the 2nd Respondent (APC) gave Notice to INEC of its various primary elections, including the
11 primary election for State House of Assembly on 8/11/2014. It is true that the 2nd Respondent’s primary election for House of Assembly did not hold on 8/11//2014; it was rescheduled vide 2nd Respondent’s letter to INEC dated 19/11/2014. It must be noted that before 8/11/2014 fixed for the State House of Assembly primary election, the 2nd respondent, by letter dated 5/11/2014, notified INEC of the postponement of the primaries “to dates which shall be communicated soon”. It is very clear from the letter dated 18/11/2014 (Exhibit R1) that it revised or rescheduled the date earlier fixed for the 2nd Respondent’s primary election for State House of Assembly to 1/12/2014. We were urged by the Petitioners’ counsel to hold that the 2nd Respondent’s letter dated 19/9/2014 which had scheduled the primaries to hold on 8/11/2014 and did not hold should be reckoned with in determining whether 21 days’ notice was given to 3rd Respondent as provided by Section 85(1) of the Electoral Act . We were also urged to hold that the letter dated 19/9/2014 lapsed, extinguished or became spent and the letter dated 18/11/2014 be taken as a notice sent by 2nd Respondent to 3rd Respondent
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12of its primary election for House of Assembly held on 1/12/2014, which is less than 21 days. – – We are not persuaded by this submission. We are of the view that the letter dated 18/11/2014 cannot be divorced or separated from the letters dated 19/9/2014 and 5/11/2014. We hold the view that the letters dated 19/9/2014, 5/11/2014 and 18/11/2014 are in respect of the same subject matter, which is the 2nd Respondent primaries, including the primary election for the House of Assembly. We reject the view of the learned counsel for the Petitioners that since the 2nd Respondent’s primary election for the State House of Assembly was not conducted on 8/11/2014, the notice conveyed by the letter dated 19/9/2014 became extinguished. Similarly, we reject the assertion that the letter of 19/9/2014 and one of 18/11/2014 are two independent documents. We had held in Petition No. NA/LEGH/EPT/L/S/22/2015: Oladejo Babatunde Munir & Anor v. Olowo Rotimi Emmanuel & Ors & 2 Ors. Judgment delivered on 17/9/2015 (which sole Ground is the same as Ground 1 of the instant Petition) that from 19/9/2014, the date of Exhibit B1 to 1/12/2014 (the date of the primary election
13for House of Assembly) was more than 21 days. We adopt our decision in that Petition. We are unable to accept the contention that the 2nd Respondent had a duty under Section 85(1) of the Electoral Act to give another notice of at least 21 days before it could validly conduct the primary election – – on the rescheduled date. Such interpretation, in our opinion, will be overstretching the provisions of Section 85(1) of the Electoral Act . It is our firm view that the primary election for State House of Assembly for Ojo Constituency 2 held on 1/12/2014 was not invalid. Therefore, the emergence of 1st Respondent as the 2nd Respondent’s candidate for Ojo Constituency 2 seat in the Lagos State House of Assembly election held on 11/4/2015 was valid. we also hold the view that the case of Aidoko Ali Usman Atai & Anor v. Ocheia Emmanuel Dangana & 3 Ors (supra). which is strenuously relied upon as a precedent to invalidate the election of the 1st Respondent cannot hold sway on the instant petition. This is because the facts in the case of Atai v. Dagana (supra) and that in the instant petition are different and distinguishable. First, in the instant Petition, it
14 is on record that INEC officials attended and monitored the said primaries. In that case, INEC officials did not attend or monitor the PDP primary election conducted on 28/1/2011. Second?in Atai v. Dangana (supra) the Appellants complained that the PDP primary election conducted on 28/1/2011 was a nullity. Part of the grounds for the complaint was that it was conducted 13 days after the last date prescribed by INEC for the conduct of party primaries. That is not the situation in the present Petition. Third, in the instant Petition, there is nothing in evidence that INEC (3rd Respondent) queried the legality of the primary election of 2nd Respondent held on 1/12/2014. However, in the case of Atai v. Dangana, INEC by a letter dated 24/1/2011 written to the chairman of PDP (Exhibit P21) reminded PDP “that the time for conduct of party primaries had since elapsed on 15/1/2011 and has not been extended by INEC”. So, by the letter, INEC gave PDP enough notice of the futility of the exercise it planned to conduct on 28/1/2011. Based on these very peculiar facts the Court of Appeal held that the primary election conducted on 8/1/2011 culminating in the purported
15 nomination of the 1st Respondent as PDP candidate for election as Senator – – was illegal as it was done in manifest violation of Section 85 of the Electoral Act . It seems to us that if PDP had given INEC notice for the primary election for a period even less than 21 days and INEC officials attended and monitored the primary election, the Court of Appeal would have reached a different decision. In conclusion on this issue, our verdict is that the Petitioners failed woefully to discharge the burden placed on them to prove that at the time of the election conducted on 11/4/2015, the 1st Respondent was not qualified to contest the House of Assembly Election for Ojo Constituency 2 of Lagos State.”
The said Tribunal also resolved the second issue against the Appellants, and concluded as follows at pages 959 to 960 of the Record –
“On the whole, the conclusions we have arrived at in the two issues we formulated for determination in this petition are:-
(1) The Petitioners failed to establish that at the time of the House Assembly Election held on 11/4/2015, the 1st Respondent was not qualified to contest the election; and (2) The Petitioners failed to prove that the
16 Election of the 1st Respondent was invalid by reason of corrupt practices or non-compliance with the provisions of Electoral Act – – -In the light of all that we have said, our decision is that the Petitioners failed to prove the Grounds of the Petition. In relief 1, the Petitioners seek a declaration that the 2nd Respondent has the obligation under the law to give at least 21 days’ notice to the 3rd Respondent before conducting its primaries that produced 1st Respondent as its candidate for the State House of Assembly Election held on 11/4/2015. Declaratory orders are intended to state or declare the correct state of affairs. Accordingly, the declaratory order sought by the Petitioners in relief 1 is granted. The other reliefs are dismissed. We therefore affirm the declaration of the 1st Respondent (Ogunyemi Michael Olaranwaju) of the All Progressives Congress (APC) by the 3rd Respondent (INEC) as the winner of the House of Assembly Election in Ojo Constituency 2 of Lagos State. We hereby dismiss the Petition with cost of N30,000.00 to the 1st and 2nd Respondents; and N30,000.00 to the 3rd and 4th Respondents”.
Dissatisfied, Appellants appealed to this court
17with a Notice of Appeal containing 22 (twenty two) Grounds of Appeal. They distilled 7 (seven) issues for Determination therefrom in their Brief of Argument prepared by Gbenga Ojo, Esq., Clement Onwuenwunor, Esq., John Itodo, Esq., Adeniyi Pokanu, Esq., Olalekan Ashas, Esq., Atinuke Oladajo Akintola (Miss), Austin Akpometa, Esq., and Obi Augustine Chizoba, Esq.
The 1st and 2nd Respondents objected to Grounds 5, 9 and 11 of the Grounds of Appeal in their own Brief prepared by R.A.O. Adegoke, Esq., Omotayo Olatunbosun, Esq., Jolomi James, Esq., Joseph E. Aketu, Esq., and Tomiwa Ogundipe (Miss). The Grounds of Appeal are as follows –
GROUND 5 – The learned Justices of the Election Tribunal erred in law when they held that the 2nd Respondent’s letters dated 5/11/2014 and 18/11/2014 revived that of 19/9/2014 and therefore complied with the provision of Section 85(1) of the Electoral Act, 2010 (as amended) .
Ground 9 – The Learned Justices of the Electoral Tribunal erred in law when they adopted their decision in page 33 of Judgment in Petition No. NA/LEGH/PT/L/S/22/2015, OLADEJO BABATUNDE MUNIR & ORS. v. OLOWO ROTIMI EMMANUEL & ORS , Judgment delivered on the
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18 17/9/2015 (Adopted/incorporated by the Learned Justices of the Tribunal at page 38 of the Judgment of the instant Appeal), thus:
“In the light of the purpose of the said S. 85(1) , we hold the respectful view that since the Petitioners did not challenge the evidence that INEC officials attended and monitored the primary election of APC in issue, the primary election will not be invalidated because the notice was for a period of less than 21 days. The purpose of the 21 days’ notice is to give officials of INEC sufficient time to prepare to attend and monitor the party primaries. So, if INEC officials were able to prepare with a period less than 21 days and performed their duty of monitoring the primary election, there will be no justification, in our humble opinion, to strike down or annul the primary election.
Ground 11 – The Learned Justices of the Election Tribunal erred in law when they held that the APC State House of Assembly Primary Election held on 1/12/2014, which produced the 1st Respondent was valid because INEC officials attended and monitored the said primaries, adopting their Decision at page 32 to 33 of the Judgment in Petition No.
19 NA/LEGH/EPT/L/S/22/2015; MUNIR & ORS v. EMMANUEL & ORS Judgment delivered on 17/9/2015 (Adopted/incorporated by the Learned Justices of the Tribunal at page as 38 of the Judgment of the instant/Appeal) as follows:
“It appears to us that the purpose of the notice required under Section 85(1) of the Electoral Act is to enable the officials of INEC attend and monitor the primaries of political parties in order to perform the statutory function in S. 86(1) thereof “to keep records of the activities of all the registered political parties”. In Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227, it was held that under Section 85(1) of the Electoral Act, 2006 (similar to the provision in issue), it is mandatory that political parties should inform INEC of the date and time of holding a convention/congress summoned for the purpose of nominating candidates for any of the elective officers under the Electoral Act, 2006. The Supreme Court further held that the obligation on the parties to inform INEC of such congresses is to ensure that INEC would know and keep a record of candidates who won the primaries: Thereby occasioned miscarriage of justice”.
They urged us to
20 strike out or discountenance the Grounds 5, 9 and 11 on the ground that they “did not flow from or related to the Judgment of the Court appealed against”. They submitted that it is a fundamental principle that grounds of appeal against a decision must flow or relate to the decision and must constitute a challenge to the ratio of the decision, and referred us to Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156 SC, and Olonade v. Sowemimo [2014] 14 NWLR (Pt.1428) 472 SC.
They submitted with regard to Ground 5 that there is nowhere in the lower Tribunal’s Judgment where it held that the 2nd Respondent’s letters dated 5/11/2014 and 18/11/2014 revived that of 19/9/2014 at all; that Ground 9 did not flow or relate to its Judgment, as there is nowhere therein where it held as such; and that contrary to Ground 11, the lower Tribunal never stated that – “the APC State House of Assembly Election held on 1/12/2014, which produced the 1st Respondent was valid because INEC officials attended and monitored the said primaries”. Citing Saraki v. Kotoye (supra), Olonade v. Sowemimo (supra) and Contract Resources Ltd v. S.T.B. Ltd. [2013] 6 NWLR (Pt. 1350) 260, they urged us to
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21 discountenance or strike out said Grounds 5, 9 and 11. In their Reply Brief in response to 1st and 2nd Respondents’ Brief, the Appellants submitted that the Notice of Preliminary Objection is most inappropriate and should be discountenanced. Audu v. Gideon [2015] 12 NWLR (Pt. 1474) 495, Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404, Muhammed v. Military Administrator, Plateau State (2001) 16 NWLR (Pt. 740) 524, NDIC v. Oranu (2001) 18 NWLR (Pt. 744) 183. They argued that the 1st and 2nd Respondents have mistaken purports of a preliminary objection incorporated in a brief; that the purpose is to contend that the appeal is incompetent and fundamentally defective and if it succeeds, put an end to the appeal; that the Notice of preliminary objection raised against the said Grounds 5, 9 and 11 is inappropriate where, in this case, even if it succeeds, it will not terminate the appeal-NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Audu v. Gideon (supra).
They are right; the supreme Court per Rhodes-Vivour, JSC, made this clear in Okereke v. James (2012) 16 NWLR (Pt. 1326) 339, as follows-
“A preliminary objection is filed against the hearing of the appeal. The clear
22 intention being to contend that the appeal is incompetent or fundamentally defective. Consequently, if it succeeds, the hearing of the appeal abates. Where a Respondent’s objection, if successful, would not terminate the hearing of the appeal, a motion on notice should be filed”.
See also Odunukwe v. Ofomata (supra), where the Supreme Court per the same Rhodes-Vivour, JSC, once again explained as follows at 423-
“Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground/s of appeal, as in this appeal, and the other ground/s are in order, and can sustain the appeal, the Respondent ought to file a motion on notice to strike out the incompetent ground/s and not a preliminary objection – – Finally, and for emphasis, a preliminary objection is filed only against the hearing of the appeal and not against the one or more of the grounds of appeal”.
In this case, the 1st and 2nd Respondents challenged only 3 out of the 22 Grounds of Appeal, so, the Notice of Preliminary Objection they raised is a wrong process, and they should have filed a motion
23 on notice instead – see Okereke v. James (supra) and Odunukwe v. Ofomata (supra).
At any rate, even if we strike out the said three Grounds of Appeal, the Appellants have more than enough Grounds of Appeal to play with. This Appeal involves an election Petition, and with no time at all to spare, it will be foolhardy to delve into what is of no consequence to the Appeal. The Notice of Preliminary of Objection will be and is discountenanced. As I said, the Appellants formulated 7 Issues for Determination; namely –
I. Whether the Hon. Tribunal was right to have relied on a letter dated 5/11/2014 admitted as Exhibit RR1, a document not pleaded, in reaching its decision that there was sufficient notice to meet the requirement under Section 85(1) of the Electoral Act
II. Whether from the lawful available evidence before the Hon. Tribunal it was established that the 2nd Respondent complied with the provision of S. 85(1) of the Electoral Act in the conduct of its primaries which produced the 1st Respondent having not complied with the mandatory requirement of 21 days’ Notice?
III. Whether in view of the fact that RW2 (INEC Witness) who testified that the 1st Respondent
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24 held its House of Assembly primaries nationwide on 1/12/2014 and had hitherto testified in Petition No. NA/LEGH/EPT/L/S/22/2015 [Judgment In same which was incorporated/adopted by the Hon. Tribunal in page 38 of the instant Judgment (page 943 of the Record) to the effect that same APC House of Assembly primaries was held nationwide on 2/12/2014; the Hon. Tribunal should not have relied on evidence of RW2 to make finding and conclusion that there was unshaken evidence that the 2nd Respondent held its House of Assembly primaries on 1/12/2014 and same was duly attended/supervised by the 3rd and 4th Respondents?
IV. Whether the Hon. Tribunal was right to have expunged paragraphs 2, 3, 4, 5, 7 and 12 of the Petitioners’ Reply and paragraphs 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 19 of the 1st Petitioner’s?Further Statement on Oath when same have neither raised fresh fact, conclusion nor reliefs?
V. Whether from the evidence of the Petitioners there is no established uncontradicted evidence of discrepancies between the figures obtained from INEC database (Exhibit P10) and the evidence of PW6 to warrant cancellation of votes in affected Thirty (30) polling Units?
VI.
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25 Whether from the pleadings of the Petitioners, evidence of Petitioners’ Witnesses (PW2, 3, 4 and 5), Exhibits P6 and P7 there is no established uncontradicted evidence of irregularities between accreditation and votes cast in Thirty (30) Polling Units complained of as against only Twenty five (25) Polling Units the Tribunal limited itself to?
VII. Whether the Hon. Tribunal was right in law, in view of relief sought by the Petitioner, to have held that the 1st Respondent would still have won the election even after the cancellation of votes in Twenty five (25) Polling Units affected when in fact the Appellants by their Petition only sought for cancellation and ordering of fresh elections in affected Polling Units?
Despite their Objection, the 1st and 2nd Respondents formulated 3 Issues for Determination from the Appellants’ Grounds of Appeal, as follows-
i. Whether the trial Tribunal was right to hold that the Appellants failed to discharge the burden of proof that, at the time of the election conducted on 11/4/2015, the 1st Respondent was not qualified to contest the election for the seat of Ojo Constituency II of the Lagos State House of Assembly;
ii. Whether the
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26 trial Tribunal was not justified in striking out paragraphs 2, 3, 4, 5, 7 and 12 of the Appellant’s Reply and paragraphs- 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 19 of the 1st Petitioner’s further witness statement as amounting to amendment or adding new facts to the Petition filed by the Appellants; and
iii. Whether the Appellants had discharged the burden of proof entitling them to be declared winner of the election or the Tribunal can nullify the said election and order a fresh election upon allegation of irregularity and corrupt practices.
On their own part, the 3rd and 4th Respondents formulated 2 Issues for Determination in their Brief prepared by Dr. Garba Tetengi, SAN, Mrs. G.S Mamswa, and Philemon O. Tetshik. The said 2 issues are as follows-
“(i) Whether the Appellants at the lower Tribunal have discharged the burden of proof based on the evidence adduced, that the 1st Respondent was not qualified to contest for the election as affecting Ojo Local Government Constituency II and thereby occasioned a miscarriage of justice.
(ii) Whether the Appellants have proved their case before the Lower Tribunal thereby entitled them to the reliefs sought.”
In my view, the
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27 1st and 2nd Respondent’s Issues capture the essence of what is at stake in this Appeal, and since we do not have the time to take on a proliferation of Issues, I will adopt them in dealing with this Appeal. The first Issue boils down to whether the 2nd Respondent complied with the provisions of Section 85(1) of the Electoral Act in the conduct of its primaries that produced the 1st Respondent having not complied with the mandatory requirement of 21 days’ Notice, and Parties addressed us at length in their respective briefs. However, as I said at the beginning, this is one of the Appeals from the lower Tribunal to this Court, and it is, certainly, not the first Appeal where the said Issue has been canvassed.
My learned brothers in this Division of the Court, and on this Panel, have resolved this Issue in other Judgments, and I do not plan to re-hash what has already been settled, but will only look at differentiating factors, if any, between this case, and other cases already decided by this Court. More so, as the said Issue is tied to the same Exhibits across the board – letters from 2nd to 3rd Respondent dated 19/9/2014, 5/11/14 and 18/11/14. In his Judgment
28 dated 12/11/2015, Iyizoba, JCA, who is on this Panel, held as follows in Appeal No. CA/L/HR/1001/15 – Adewunmi v. Joseph –
“I am in complete agreement with the Tribunal, it is unarguable that the letter of 18/11/14 is not related to the letter of 19/9/14. They are indeed very much related. The first letter 19/9/14 – – “Please be advised?that our Party has scheduled to hold Primary Elections for the nomination of candidates in respect of?the 2015 General Elections as follows:” The second letter of 18/11/14 says: “Please be advised that our Party has rescheduled dates for the conduct of Primaries as follows:” It is the same 2015 General Election that is in issue unless the Appellants are able to confirm that there was another set of elections unconnected with the 2015 elections. The second letter of 18/11/14 is captioned “Revised Date for the Conduct of Primaries”. The word “Revised” implies that it is a follow up from some earlier dates. Further the words “schedule” and “reschedule” used in the letters supply the necessary link. “Reschedule” again implies a follow up from a previous schedule. In the American Heritage Dictionary of the English Language Fifth Ed.,
29 the word “reschedule’ was said to mean to schedule again or anew” such as to reschedule the meeting for the following week. In Collins English Dictionary – Complete and Unabridged it means “to change the time, date or schedule of”. In Thesaurus it means “to assign a new time and place for an event such as “we had reschedule the doctor’s appointment”. It is very clear then that the second letter of 18/11/14 merely rescheduled the primaries previously scheduled in the letter of 19/9/14. The contention – – that the two letters are independent of each other because some of the dates earlier scheduled for some of the primaries had expired before the second letter was written is to my mind of no consequence. The truth remains that none of the primaries for which the first notice was given had been held necessitating the rescheduling, it does not make any sense whatever to require another 21?days’ notice. That cannot be the intention of the Legislature. Also the contention – – that the word “any convention, congress, conference or meeting” in Section 85(1) means that any such convention, congress, conference or meeting whether initially scheduled or rescheduled
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30 requires 21 days fresh notice again makes no sense and cannot be the intention of the Legislature, “Any” in the con used means the particular convention, congress, conference or meeting itself and not a rescheduled one which for one reason or the other could not hold. It seems to me from the arguments of learned counsel for the Appellants that if the second letter of 18/11/14 had referred to the first letter of 19/9/14 and mentioned specifically that the primaries could not hold and is now being rescheduled to hold on new dates, the notice would be held to date back to the letter of 19/9/14 and would then have satisfied the requirement of Section 85(1). That to my mind amount to a clear case of placing undue emphasis on technicalities at the expense of substantial justice. There is enough evidence to show that the two letters are related and that the Notice in the letter of 19/9/14 covets the primaries held on 7/12/2014 and is in full compliance with Section 85(1) Electoral Act being for beyond the 21 days’ notice required. The case of Atai v. Dangana (supra) relied on heavily by the Appellants is not apposite to the instant case. There, 21 days notice was
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31 not given before the primaries and the primaries were held in utter disobedience of the mandatory 21 days’ notice required by Section 85(1) of the Electoral Act . The primaries that saw the emergence of the 1st Respondent as the candidate of the 2nd Respondent was in order and not a nullity. The Tribunal was correct in its decision that the Appellants failed to establish that at the time of the House of Representatives election held on 28/3/15, the 1st Respondent was not qualified to contest the election. This appeal has no merit at all and same is hereby dismissed. The decision of the Tribunal is affirmed”.
In Appeal No. CA/L/HR/1003/15 – Ayinde v. Adebanjo , Oseji, JCA, held-
“To all intents and purposes Exhibit R1 dated 19-9-2014 is a notice to the 3rd Respondent (INEC) by the 2nd Respondent, it informs the 3rd Respondent of its intention to hold a special congress for the nomination of candidates for the 2015 general election, primary elections for nomination into the various offices which were to be held at different dates between 8-11-2014 and 8-12-2014 with that of the House of Representatives slated for 24/11/2014. The notice given for the purpose of the
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32 said primary election for House of Representative is about 70 days from 19-9-2014 to 24-11-2014?which is much more than the 21 days prescribed under Section 85(1) of the Act , and gladly enough all the parties agree that Exhibit R1 was a good notice in compliance with law. The bone of contention is Exhibit P4 which is dated 18-11-2014 – – All the dates earlier scheduled for the primaries in Exhibit R1 were now rescheduled to new dates for the nomination into the various offices, for the House of Representatives, it was rescheduled for 7-12-2014 from the original?date of 24-11-2014. For the Appellants, Exhibit P4 is a totality different notice independent of Exhibit R1 and given that it was issued on 18-11-2014 for primaries that are to be held on 7-12-14, the said notice falls short of the 21 days prescribed by Section 85(1) of the Act , more so that Exhibit R1 was extinguished by effluxion of time on Saturday 8-11-2014 when the primary elections in House of Representatives failed to hold as scheduled. I have carefully studied the contents of Exhibits R1 and R4 and their import and my humble deduction therefrom is that in Exhibit R1,?the 2nd Respondent gave the
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33
3rd Respondent notice of its intention to hold a special congress for the nomination of candidates for election into various offices – – – and by the said notice dated 18-9-2014 that of the House of Representatives was to hold on Monday, 24-11-2014. But before the said date, Exhibit P4 dated 18-11-2014 was sent to the 3rd Respondent and it was titled – – and signed by the same National secretary of the 2nd respondent who also signed Exhibit R1. The content of the said Exhibit P4 was earlier reproduced – – and intent is to inform the 3rd Respondent that the 2nd Respondent has rescheduled dates for the conduct of primaries for nomination into the aforementioned offices. In my humble view the purport of Exhibit P4 is very simple and clear as crystal to the effect that it did nothing than to inform the 3rd Respondent that the primary elections for the nomination of candidates for election into various offices including the House of Representatives – – which was by Exhibit R1 fixed?for 8-11-2014, 15-11-2014, 24-11-2014, 28-11-2014 and 2-12-2014 respectively has been rescheduled to new dates of 1-12-2014 (House of Assembly) 4-12-2014 (Governorship), 7-12-2014
34 (senate) and 10-12-2014 (Presidential) respectively. There is therefore a link or connect between Exhibit R1 and P4 and they cannot be said to be independent notices as contended by the Appellants. The word “Reschedule” is defined by the English Dictionary as “To schedule again or at different time.” In Oxford Advanced Learner’s Dictionary 7th Ed. – – it is defined thus:- “to change the time at which something has been arranged to happen, especially so that it takes place later. – – – This definition as simple as it is, I believe shuts up any further argument to the contrary as to the meaning of the word “Reschedule”.?For something or a programme, or an event to be rescheduled there must have been a prior or original schedule for it. For instance, a meeting for the Nigerian Bar Association scheduled for 28/11/2015 by a notice of meeting by members can by another notice be rescheduled to say, 7/12/2015 and such rescheduling does not have to change the agenda earlier prepared for the prior meeting. In the instant case therefore I cannot but agree with the submission of the 3rd Respondent who incidentally is the recipient and beneficiary of the said statutory
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35 notice, that the letter dated 18-11-2014 (Exhibit P4) by which the 2nd Respondent rescheduled her primaries needs no further 21 days’ notice because Exhibit R1 which is the letter dated 19-9-2014 written by the 2nd Respondent as notice for its convention to the 3rd Respondent satisfies the requirement of notice as provided for under Section 85(1) of the Electoral Act. The argument – – that Exhibit R1 and P4 are separate notices does not hold water and cannot be sustained – – – and the case of Usman v. Dangana – – does not help their case in the sense that in Usman’s case there were two different primaries conducted – – the purported primary election that nominated – – DANGANA was held outside the period allowed by the Electoral Act 2010. There was also clear evidence that the notice given to INEC just three hours before the conduct of primary election and INEC did write a letter formally warning the 2nd Respondent against the holding of the senatorial primary and the said INEC did not attend same. That is entirely not the situation in the instant case where Exhibit R1 show that a notice of about 66 days was given to INEC and before the expiration of same the
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36 2nd Respondent wrote to reschedule the earlier dates given to INEC which it found acceptable and convenient and even attended all the primary elections as scheduled. In the circumstance, this issue is resolved against the Appellants.”
Abubakar, JCA, who is also on this Panel that heard this Appeal, had the following to say in Appeal No. CA/L/HR/1002/2015 – Oladipo v. Badru-
“Exhibit R1, the letter written by the 2nd Respondent to the 3rd respondent carries the following words, words, “NOTICE”, ?SCHEDULED”. Let me quickly determine the meaning of the two words in the letter. Black’s Law Dictionary 8th Ed defines “Notice”, 1. As legal notification by law or agreement, or imparted by operation of law as a result of some fact (such as the cognizance, actual or constructive of an existing right or title… A person has notice of a fact or condition if that person (1) has actual knowledge of it, (2) has received information about it (3) has reason to known about it (4) knows about a related fact, or (5) is considered as having been able to ascertain it by checking an official filing or recording. 2. The condition of being so notified, whether or not actual
37 awareness exist, 3. A written or printed announcement. On the other hand the word “SCHEDULE” means: A written list or inventory, esp., a statement that is attached to a document and that gives a detailed showing of the matters referred to in the document. From the definition of the two words extracted from the letter dated 19/9/2014, it is clear that notice means written announcement and condition of being so notified, while schedule is the detailed showing of the matters referred to in the document. It is not in doubt that parties in this Appeal all agreed that Exhibit R1 gave the requisite notice, the quarrel is whether Exhibit P4, letter dated 18/11/2014, is an elongation of the first letter or not. The said Exhibit carries the following words “REVISED” “RESCHEDULED”. These two words featured prominently in the letter of the 2nd Respondent to the 3rd Respondent dated 18/11/2014. I had recourse to dictionary.com, where “revised” has the following meaning assigned to it, “to amend or alter, to revise ones opinion, to alter something already written or printed in order to make corrections, improve, or update, while “Rescheduled” is defined as “to schedule for
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38 another or later time, (interesting enough, dictionary.com gave the following instance “to reschedule a baseball game because of rain). Section 85(1) of the Electoral Act provides- I think it is beyond any controversy that the 2nd Respondent complied fully with the provisions of Section 85(1) of the Electoral Act, and as the Respondents rightly submitted and the eventual finding by the lower Tribunal, the two letters dated 19/9/2014, scheduling the primary elections and the one dated 18/11/2014 rescheduling the primary elections are twin pillars upon which the election of the 1st Respondent must be concreted, the letters must be read together, I cannot fault the conclusion reached by the lower Tribunal, on this point I therefore totally agree with the lower Tribunal, that the 2nd Respondent gave sufficient notice to the 3rd Respondent as required by law. Issue number two is therefore resolved in favour of the Respondents against the Appellants.”
See also the Judgment of Nimpar, JCA, in Appeal No. CA/L/HR/1000/15 – Hassan & Anor v. Ojo & Ors, wherein he also observed as follows-
“The Appellants concedes that the notice to the 3rd Respondents – Exhibit R1
39 complied with or satisfied the statutory requirement of 21 days’?notice to the 3rd Respondent but the primaries did not hold on the dates stated in the notice, which is 24/11/2014. The second letter rescheduled the primaries for 7/12/2014 and it is dated 18/11/2014. Appellants contend that the second letter did not build on the first letter. To argue that the two letters gave two different and unrelated notices for separate primaries to be conducted at different dates is misconceived. The second letter was written before the date of the primaries relevant here. It clearly talks of rescheduling the party primaries. Exhibit P4 cannot be the 21 days’ Notice but a rescheduled date for the primaries for which notice was given in Exhibit R1. Relevant portions states thus: “Please be advised that our party has scheduled to hold Primary Elections for the Nomination of candidate in respect of the 2015 General Elections as follows;” “Please be advised that our Party has rescheduled dates for the conduct of Primaries as follows;” A community reading of the two excerpts clearly reveals the same transaction. I agree with the Appellant that it should not require oral evidence
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40 or connection. They are indeed by themselves connected to the same subject matter without any external aid. Exhibit R1 talks of primary election for the nomination of candidates of the 2nd respondent, Exhibit P4 says the party (2nd Respondent) has rescheduled dates for the conduct of primaries. It has been settled that in the consideration of a relationship where series of correspondences have been written, it is the duty of the court to consider all?the correspondence in order to decipher the relationship, see Udeagu v. Benue Cement Co. (2006) 2 NWLR (Pt. 965) 600. In the same vein, where more than one document govern a relationship, no single document should be considered in isolation or be the sole determinant. Therefore, any interpretation here must rest on both Exhibits, more so the 3rd Respondent admitted receipt of both documents. The words used in Exhibit P4 are not ambiguous or imprecise as to create a different purpose with regard to Exhibit R1. To contend that there is nothing in Exhibit P4 which relates to Exhibit R1 is nothing but mere technicality. The 18/11/2014 is certainly before the earlier date of 24/11/2014 fixed for the primaries relevant to
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41 this appeal. Exhibit P4 therefore shifted the date of the primaries. The question here is whether the rescheduling of the primaries breached the Electoral Act? There is no statutory provision barring a political party from rescheduling its primaries as long as the required 21 days’ notice had been given and is also within time lines set by INEC. The important issue is that 21 days must lapse before any primaries. Between the first notice and the actual date the primaries held is beyond the 21 days requirement. To say the two notices are independent of one another is wrong. Both Exhibits are for the primaries the 2nd respondent and the correspondences commenced with Exhibit R1 and followed by Exhibit P4 which is a readjustment in dates. The subject matter remained the same between the same parties and just the dates were adjusted after satisfying the 21 days mandatory notice. I agree that failure to satisfy a statutory requirement has serious consequences on the party in default. If the only notice given were Exhibit P4, then the argument of Appellants would have been valid, but there was an earlier notice in Exhibit R1. The 1st Respondent was therefore
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42 qualified to contest the election having emerged from a credible primary pursuant to a notice duly given in Exhibit R1. On the whole, therefore, this issue is resolved against the Appellants.”
My learned brothers have said it all, and they have said it from whatever angles or ramifications the said issue may be canvassed or envisioned. Since I do not intend to “re-invent the wheel”, more or less, I will focus my attention in this Appeal on distinguishing factors, if any, in this case.
For instance, the Appellants brought in another angle to it with their argument that Exhibit RR1, the letter dated 5/11/2014, was not pleaded, thus, its admission in evidence has occasioned a miscarriage of justice because, if the lower Tribunal had not considered it, there would be 10 clear days break between the date of the earlier scheduled election billed to hold on 8/11/2014, and the letter dated 18/11/2014 [Exhibit P3], which later communicated 1/12/2014, as the new date for the said Primaries.
They referred to the position of the law and the rules of pleadings, citing – Onamade v. ACB (1997) 1 NWLR (Pt. 480) 123, Njoku v. Eme (1973) 5 SC 293, Okafor v. Okitiakpe (1973) 2 SC
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43 49, Emegokwu v. Okadigbo (1973) 4 SC 261, Odumosu v. ACB (1976) 11 SC 261: Ekpeyong V. Ayi (1973) ECSLR 411; NIPC v. Thompson Organization (1969) NMLR 99 Osuji v. Ekeocha (2009) 39 NSCQR 532, Amasike v. Registrar General, CAC & Anor (2010) 43 NSCQR 581, NDIC v. Oranu (2001) FWLR (Pt. 82) 1974, Lemonu v. Alli Balogun (1975) 3 SC 169, and Ibanga v. Dereke-Solar (1986) 4 SC 141. It is their contention that Exhibit RR1 was wrongfully admitted as it was not pleaded by any party; that it is clear from the 1st and 2nd Respondents’ Reply dated 5/6/2015 that they never pleaded the said letter nor any fact relating to same, and the 3rd and 4th Respondents’ Reply dated 23/06/2015 neither contains any fact relating to the said letter nor did they plead the said letter.
They cited Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt. 99) 566, on the criteria governing admissibility of a document, and submitted that-
“Exhibit RR1 being evidence admitted without any fact pleaded in support of same in the Respondents’ Reply, same goes to no issue and ought to have been disregarded by the Hon. Tribunal. – – Exhibit RR1 obviously fails the first criteria governing admissibility of a
44 document in evidence and would obviously not be relevant and admissible in law to the case at hand. – – There was no relevant fact in any of the Reply filed by the Respondents to justify the admissibility of letter dated 5/11/2014 (RR1) hence Judgment of the Tribunal was perverse. – – Hon. Tribunal wrongfully relied on the said inadmissible evidence (i.e. RR1) to come to the conclusion that the postponement was communicated before the expiration of the earlier date, which was 8/11/2014.”
Furthermore, that Exhibit RR1 cannot be allowed to stay in the Record since it was not pleaded by any of the Respondents – Akinduro v. Alaya (1998) 4 NWLR (Pt. 545) 311; that it is trite law that the trial Court must reject inadmissible evidence and decide the case on legal evidence – Araka v. Egbue (2003) FWLR (Pt. 175) 507 and Owoniyi v. Omotosho (1961) All NLR 304 that Parties cannot by consent confer admissibility on inadmissible evidence, and where evidence is improperly received, an appellate Court would discountenance it – Fasade v. Babalola (2003) FWLR (Pt. 161) 1707 Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261, Ipinlaiye v. Olukotun (1990) 6 NWLR (Pt. 453) 148, Ita v.
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45 Ekpenyong (2001) 1 NWLR (Pt. 695) 589, Chigbu v. Tonimas Ltd. (1999) 3 NWLR (Pt. 593) 115 & Sadhwani v. Sadhwani Ltd. (1989) 2 NWLR (Pt. 101) 72 that this Court can still expunge Exhibit RR1, although it was wrongfully admitted by Tribunal as the admission offends the rules of admissibilty – Abolarin v. Ogundele (2012) 10 NWLR (Pt.1308) 253 cited; and that –
“But for the wrongfully admitted Exhibit RR1, the Hon. Tribunal would have come to a different conclusion that the 2nd Respondent’s primary election held on 1/12/2014 was communicated to INEC via letter dated 18/11/2014 which same has a 21-day-less-Notice contrary to the clear provisions of Section 85(1) of the Electoral Act. Therefore the wrongful admission of Exhibit RR1 occasioned grave miscarriage of justice in unlawfully justifying and remedying the hitherto illegal and unlawful primary elections of the 2nd Respondent held on 1/12/2014 and the Appellants have suffered injustice as a result thereof – Idundun v. Okumagba (1976) 9-10 SC 227. The implication of expunging [Exhibit RR1] is that the 2nd Respondent’s primary election that produced the 1st Respondent – – which was conducted on 1/12/2014 (same
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46 which was communicated to INEC via [Exhibit R2] violated the clear and mandatory provisions of Section 85(1) of the Electoral Act – – Section 106(d) of the Constitution – – Having not complied with the conditions precedent to the sponsorship of the 1st Respondent, the 2nd Respondent did not have a valid candidate to contest for the election conducted by the 3rd Respondent on 11/4/2015. The clear implication of this is that all votes purportedly cast for the 1st Respondent, a candidate not qualified to contest the election are deemed to be wasted votes as that candidate is deemed not to have participated in the election and was therefore not on the ballot and the declaration and return of such a candidate as the winner of the election would be null and void”.
We were urged to order that the 1st Appellant, who scored the highest number of the lawful votes cast, be deemed as the winner of the election.
The 1st & 2nd Respondents argued that contrary to the Appellants’ contention, Exhibit RR1 had been listed by the 3rd and 4th Respondents, as one of the documents to be relied upon by their List of Documents; that at the proceedings of 2/7/2015, the Tribunal had
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47 granted them leave to tender the letter dated 5/11/2014, which was later tendered by the 3rd Respondent as Exhibit RR1; that the Appellants never objected to same and are only raising issue of its admissibility for the first time on appeal, which qualifies as a fresh issue for which no leave has been sought – Emenike v. PDP [2012] 12 NWLR (Pt. 1315) 556, that the Appellants’ contention beggars belief as the averment in paragraph 8(a) and (b) of 3rd and 4th Respondents’ Reply to the Petition shows that 2nd Respondent rescheduled the holding of primaries, Exhibits RR1 and P3 established.
They submitted that documents need not be specifically pleaded, and they pleaded facts regarding valid nomination of the 1st Respondent in paragraph 9 of their Reply to the Petition; that what the law requires is pleading facts relating to the documents and not necessarily documents – Aminu v. Hassan [2014] 5 NWLR (Pt.1400) 287, Monier Const. Co. v. Azubuike [1990] 3 NWLR (Pt. 136) 74, Ipinlaye II v.. Olukotun [1996] 6 NWLR (Pt. 453) 148, Odunsi v. Bamgbata (1995) 1 NWLR (Pt. 374) 641; that Exhibits R1, RR1 and P3 are documents that speak for themselves – Adda v. Liman [2012] 4 NWLR
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48 (Pt. 1290) 243; that in construction of inter-related documents, none of the documents should be construed in isolation but as a whole – CBN v. Igwillo [2007] 14 NWLR (Pt. 1054) 393; that the Appellants never objected to the admissibility of Exhibit RR1: that neither authenticity nor genuineness nor whether it originated from 2nd Respondent to 3rd Respondent was impugned, and a party who fails to challenge admissibility of a relevant and admissible document when the opportunity to so do presents itself cannot be heard to complain later about its admissibility – Ezomo v. NNB [2006] 14 NWLR (Pt. 1000) 625.
Furthermore, that presumption of regularity, which enured in favour of 3rd Respondent in its conduct of 2nd Respondent’s primaries is rebuttable, and the onus of rebutting same falls squarely on anyone, who faults its regularity to prove otherwise; and that the Appellants failed to do this, and as such, the 2nd Respondent’s primaries is proper, regular and valid in the eyes of the law – Hashidu v. Goje [2003] 15 NWLR (Pt. 843) 352 and Nadabo v. Dabai [2011] 7 NWLR (Pt. 1245) 155 cited in support.
The 3rd and 4th Respondents submitted that Exhibit RR1 was not
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49 wrongly admitted or not pleaded, and pointed out that it listed the letter in their list of documents to be relied on at the trial, which is in compliance with Paragraph 5(c)?of the First Schedule of the Electoral Act , and urged us to hold that the Appellants’ arguments/authorities cited are misplaced.
The Appellants referred to Paragraph 12(1) of First Schedule to the Electoral Act , and submitted in Reply that the requirements of specifying facts and pleading same in the Reply as provided for by that paragraph cannot be obviated by listing the document on the said List of Document, citing I.G.P. v. Ubah [2015] 11 NWLR (Pt. 1471) 405 that the admission of Exhibit RR1 is inconsistent with Paragraph 12(1) of the First Schedule .
They also argued that the 1st and 2nd Respondents did not draw our attention to the following facts on the Motion on Notice they mentioned-
1. They never pleaded the letter dated 5/11/2014 in their Reply to the petition.
2. Even upon obtaining leave of the Tribunal, they never tendered the said letter.
3. That if relevant facts regarding the said letter were pleaded, they would not have bothered to seek for the leave of the Hon. Tribunal to
50 tender same. They concede that a party is not expected to plead documents, however, it must specifically plead facts to support and serve as foundation for it – NDIC v. Oranu (supra), Lemonu v. Alli Balogun (supra), Ibanga v. Dereke-Solar (supra) and that where a party abandons a document and fails to tender it, it becomes moribund and dead in the record, so the said Motion for Leave does not amount to facts supporting Exhibit RR1, and does not amount to pleading?nor evidence before the lower Tribunal.
Furthermore, that in the absence of averments and facts to support the said Exhibit RR1, it is deemed abandoned in the Tribunal’s Records – Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458; that there was no averments whatsoever in the Reply of both sets of Respondents that the election was rescheduled pursuant to the said Exhibit, notwithstanding Paragraph 8(b) of the 1st and 2nd Respondents’ Reply; that the pleading in Paragraph 8(a) and (b) of the 1st and 2nd Respondents’ Reply does not in any way relate to Exhibit RR1, that the facts as pleaded relates clearly and supports Exhibit P3, by virtue of which the primary elections were “rescheduled to 1/12/2014”:
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51that what they sought to do in their Brief is to use oral arguments to correct or add to averments before the Court; that it is trite that no matter how brilliant a brief is, it cannot take the place of pleading in law, and Written Address is not a substitute for oral evidence – Unity Bank Plc v. Owie (2011) 5 NWLR (Pt. 1240) 273, so they cannot foist Exhibit RR1 on Paragraph 8(b) of their Reply, more so that Exhibit RR1 did not refer to Exhibit P3: pursuant to which the primary was held; and that a non-existing or expired event cannot be rescheduled, and there can never be a reschedule when the date in Exhibit R1 has been extinguished by effluxion of time before the notice in Exhibit P3, more so as Exhibit P3 bear no reference to the earlier expired letter – Exhibit R1.
They also argued that the contention that they did not object to the admissibility of Exhibit RR1 is misplaced as it is trite that failure to object, where it offends rules of pleading does not debar a person from raising the objection on appeal – Owena Bank v. Punjab National Bank (2000) 5 NWLR (Pt. 658) 635, Raimi v. Akintoye (1986) 3 NWLR (Pt. 26) 97, Alade v. Okulade (1976) 2 SC 183; that
52 evidence which was deliberately or through inadvertence adduced at trial, which is contrary to a party’s pleadings must be expunged when considering the case on appeal – Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400. They urged us to so do.
Surely, the Appellants have put us through the wringer in their bid to distort what is an already established fact – the primary election of the 2nd Respondent was re-scheduled; there is no question at all about that. Expunging Exhibit RR1 from the lower Tribunal’s Record will not change or alter that fact one bit. The letters, Exhibit P3, Exhibit R1, Exhibit RR1, are interrelated and intertwined, and they are connected to a basic fact.
In plain terms, that rescheduled election is the fact to be proved, and the said Exhibits, which are interconnected, are evidence to prove it. The Appellants agreed that a party is not expected to plead documents, but their attempt to distinguish the said elementary principle in this case, will not hold water. The law is clear that where contents of a document are material, it is sufficient in any pleadings to avert to the effect thereof as briefly as possible without setting out the document
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53 unless the precise words of the document or any part thereof are material to the case – see Aminu v. Hassan (supra). The Respondents did not have to plead the said Exhibit in particular because the primary election was rescheduled, and 3rd Respondent was not contesting the fact that it was so notified.
Obviously, this issue lacks merit, and will not in any way affect the decision of the lower Tribunal affirmed by this Court. I must also add that the Appellants did not challenge the authenticity of Exhibit RR1, and did not object to its admissibility. The best time to object to admissibility of a document is at the trial because it will be too late to complain on appeal – see Ibori v. Agbi & Ors (2004) 6 NWLR (Pt. 868) 78 & Fatubi v. Olanloye (2004) 12 NWLR (Pt. 887) 229 SC, where the Supreme Court observed-
“The document is admissible and was in fact admitted without objection. It is therefore late for the Respondent to raise objection to its admissibility now.”
In this case, as 1st and 2nd Respondents rightly submitted, Exhibits P3, R1 and RR1 speak for themselves, and the lower Tribunal is right to hold that the Appellants failed to establish that
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54 at the time of the said election, 1st Respondent was not qualified to contest the election, and I so hold.
As to Issue 2, touching on the paragraphs that were struck out by the lower Tribunal, the Appellants referred us to Paragraph 16(1) of the First Schedule to the Electoral Act, 2010 (as amended), which provides-
“If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within 5 days from the receipt of the respondent’s reply, a petitioners reply in answer to the new issues of fact, so however that-
(a) The petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him; and
(b) The petitioner’s reply does not run counter to the provisions of Subparagraph (1) of Paragraph 14 of this Schedule.”
They submitted that the following questions arise from this provision –
1. Has the Respondents’ Replies not raised new issues of facts which the Petition has not dealt with?
2. Did the Petitioners’ Reply dated 15/6/2015 bring in new facts,
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55 grounds or prayers tending to amend or add to the contents of the petition filed by him?
And argued that the said paragraphs are in response to paragraphs 10(i) & (ii) of Respondents’ respective Replies, that their paragraphs raised fresh issues of facts on extent of the use of card readers for the election; that facts in their Replies to the effect that Card Reader Machines were used for accreditation “effectively”, raises new facts putting the evidential burden on them to rebut a claim of effective usage of the card Readers; that their paragraphs never brought in new facts, prayers or grounds that Respondents’ Replies did not trigger; that the paragraphs brought in facts in answer to the Respondents’ fresh facts, which relates to the extent of use of card Readers for the said election, and that paragraph 5 in particular contains issues of facts, which is in direct response to the allegations of fact relating to effective usage of the said Card readers.
The 1st and 2nd Respondents, as expected, argued to the contrary, that the lower Tribunal was right to strike out the offending paragraphs of the Appellants’ Reply to their Reply; that law jealously regulates
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56 the filing of Petitioner’s Reply to a Respondent’s Reply in an election petition; and that it also regulates the content requirement of the petitioner’s Reply, citing Paragraph 16(1) of the First Schedule to the Electoral Act, 2010. They cited Dingyadi v. Wamako [2008] 17 NWLR (part 1116) 395, Akeredolu & 3 Ors v. Akinreni & 8 Ors (1989) 3 NWLR (Pt.107) 164, Adepoju v. Awoduyilemi (1999) 5 NWLR (Pf.603) 364 and Olabanjo v. Ajiboye (1992) 1 NWLR (Pt. 218) 473, and submitted that a Petitioner’s Reply is not licence to rake in new issues, grounds or prayers tending to amend or add to contents of his petition, and “if he is seised of new facts after filing his petition, the option open to him is to amend the petition”; that the said paragraphs of the Appellants’ Reply contravened provisions of Paragraph 16(1); that their own Reply did not raise new issues of facts in defence of their case that the Petition did not deal with; that their Reply merely joined issues with the Appellants. They further submitted that –
“A perusal of paragraphs 2, 3, 4, 5, 7 and 12 of the Appellants’ Reply would reveal that they have used their Reply as a medium to smuggle in the
57 result of the purported inspection they carried out subsequent to filing their Petition. There is no way under the sun that these fresh averments can be attributable to issues raised in their own Reply to the Petition. Paragraph 5 alone spans 3 pages due to the table contained therein. By their Reply, it is beyond cavil that they have added to the content of the Petition they filed. As enjoined in Dingyadi v. Wamako (supra), having being seised of new facts after filing his petition, the option open to him is to amend the petition within the framework of the provisions of the Electoral Act, 2010 (as amended). It is instructive to refer to the recent decision of the Supreme Court in APC v. PDP (2015) LPELR-24587 (SC) (delivered on Tuesday, the 14th day of April, 2015 per Fabiyi, JSC).”
They further argued that the Appellants’ Reply to their Reply can best be described as a Petition on its own, which constitutes an abuse of the hallowed process of the lower Tribunal; that the offending Paragraphs of the Further Statement of 1st Appellant is a near-complete regurgitation of averments in their afflicted Reply; that their List of Further Documents to Be Relied
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58 on and documents attached to the Appellants’ Reply suffer the same affliction as they are products of an inspection that did not arise out of their own Reply; and that as noted by this court per Belgore, JCA in Dingyadi v. Wamako (supra), “pleadings and documents cannot be separated by the court and the law does not permit the separation”, and so, the documents must suffer the same fate with the Appellants’ Reply.
The 3rd and 4th Respondents did not comment on this Issue 2 at all. My job here is simple, and that is to go through the said averments to verify whether the lower Tribunal was right to strike out the paragraphs i.e. paragraphs 1, 2, 3, 4, 5, 7 and 12 of the Appellants’ Reply to the 1st and 2nd Respondents’ Reply to the Petition, and paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 19 of the Further Statement of the 1st Appellant. I must add that there is nothing earthshaking about this issue to warrant any hullabaloo as the lower Tribunal did say that despite striking out the paragraphs, they would still consider them in determining the Petition. The Appellants claim that the said paragraphs were in response to paragraphs 10(i) and (ii) of the
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59 Respondents’ Replies to their Petition, wherein both sets averred that card readers were deployed and available in all the polling units “as same were effectively and substantially utilized for the accreditation of voters in polling units”- paragraph 10(i); and that the said election was devoid of any irregularity, corrupt practice or non-compliance with the provisions of the Electoral Act – paragraph 10(ii). The 1st and 2nd Respondents say they used the Reply to smuggle in results of an inspection they carried out after they filed their Petition, and I agree; it is there in black and white. The Petition is dated 30/4/15, and they stated In paragraph 2 of their Reply to the Respondents’ Reply that by the Tribunal’s Order of 5/5/15. They “were empowered to inspect all voting material, including Card Reader Machines”. The paragraphs that followed expatiated on facts derived from the Inspection carried out. See APC v. PDP (supra), wherein Fabiyi, JSC, observed as follows –
“- – Proceedings in Election petitions are sui generis. They are in a class of their own. They are made to fast-track the hearing of Petitions. [But] they are not designed to spring surprise on
60parties. – – The Appellant maintained that the 2nd Respondent presented forged certificate to the 3rd Respondent. The 2nd Respondent denied same and maintained that the certificate was not forged but earned by him in 1987. By paragraph 13 – – Appellant then brought in the fresh issue of impersonation, same was not proper. It should have come in by way of a due amendment of the Petition – – The Appellant did not have a lee-way to aver new facts which ought to be in the original Petition filed.”
In this case, I will say without much ado that this Issue totally lacks merit. The Appellants carried out the inspection of the Card Reader Machines after they filed their Petition, and the paragraphs are a response to what they gleaned from the inspection rather than response to any averments in the 1st & 2nd and 3rd & 4th Respondents’ Reply to the Petition, which “amount to amending or adding new facts to the contents of the Petition”, as the lower Tribunal put it, and the Tribunal was right to strike them out.
Issue 3, which is based on the nitty-gritty of the election process, questions whether the Appellants proved their allegations in respect of 30 polling
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61 units to warrant the nullification of elections in the polling units. To understand their grouse, I will set out the Tribunal’s decision in detail. The Tribunal observed that their complaints are two-pronged, as follows–
– Non-availability of card readers and even where available, non-use of card reader machines at the polling units referred to;
-Accreditation as reflected in the votes recorded did not tally with accreditation as recorded in the card readers in the polling units.
As regards the first prong, the lower Tribunal reasoned as follows-
“PW2-PW5 made the same statements – – that card readers were not available in some polling units and even where available, the card readers were not used in the election in the said polling units. Also, under cross examination – – PW2 confirmed that – – where he acted as ward supervisor, card readers were not used in the House of Assembly election. PW3 and PW4 under cross examination contradicted their earlier evidence by saying that card readers were used but not according to specification. PW5 under cross examination said what appears to be different from his statement on oath. He said -“Card readers came late to some
62 polling units and they were blinking red meaning that the biometrics were not accepted by the card reader. INEC officers went ahead and gave the voters numbers and put indelible ink on their fingers. I complained to the security officer on duty but they ignored me”.
The testimonies of PW3, PW4 and PW5- – – contradict their evidence under cross examination on availability and non-use of card readers at the polling units where they were ward supervisors. It is trite that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated. The contradiction is fundamental to the issue before the tribunal.- PW1 confirmed under cross examination that card reader was used in the polling unit he voted. – – PW6 left no one in doubt that card readers were used in the polling units – – the Petitioners alleged that card readers were not used. PW6 tendered card readers, Exhibits P8 [1-58] and P9, which were used during the election in the said polling units. In paragraph 5:13 – – of their final written address, the Petitioners even conceded to the evidence of PW6 that card readers – – were adequately used during the April 11, 2015
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63 election. Mr. Pokanu said: “It is undisputed that INEC prepared the Card reader machines and made use of then at the April 11, 2014 [Sic: 2015]. In fact the testimony of PW6 is that the Exhibit P8 (1-58) and P59 (Card Readers) were adequately used during the April 11, 2015 Elections.” We brought out the evidence of these witnesses to show the inconsistencies, contradictions contained therein, and importantly, the fact that the evidence adduced by the Petitioners on the card readers is at variance with the averments in paragraphs 11(a) and 20 of the Petition. – – – The effect is that the averments in paragraphs 11(a) and 20 of the Petition were not proved. We agree with the learned counsel for the 1st and 2nd Respondents that the testimony of PW6 on card readers debunked the allegation in the Petition that card readers were not available and even where available at the polling units were not used. Our decision is that this allegation was not proved by the Petitioners”.
As to the second prong of the Appellants’ complaint, the Tribunal held-
“In an attempt to substantiate the allegation in paragraph 24 of the Petition, the Petitioners tendered in evidence Exhibits
64 P6; 1-6, P7; 1-25, P2, P4, P8; 1-58, P9 and P10. A party tendering such documents is expected under the law to adduce oral evidence linking the content of the exhibits to the alleged irregularities and non-compliance pleaded in the petition. The Petitioners’ counsel – – submitted that the evidence of PW6 is unshaken to the effect that the data recoverable (or recovered) from the card readers – – stands as true representation of the total accredited voters in each polling unit and same tallies with and corroborates the averments of the Petitioners contained in their Reply – – [He] stated that the allegation of inconsistency/difference between total accredited voters and total votes cast as alleged – – and also presented to the Tribunal by PW6 showed clearly the effect of non-compliance with the Act, Rules and Regulations. Is this submission borne out of evidence? We say straightway that PW6 did not give evidence that the total accredited voters in the card readers – – did not tally with the total votes in Exhibits P7; 1-25 and P6; 1-6. The witness was not shown Exhibits P7; 1-25 or any other document to connect same with the data extracted from the card
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65 readers. – – the information/data extracted from the card readers and the chart in the 1st Petitioner’s further statement – – along with the Petitioners’ reply to the 1st and 2nd Respondents’ reply to the Petition contain technical terms. For example, terms like “total accreditation from the card readers”, “success” and “failed”. None of the witnesses explained these terms. It is the duty of the Petitioners to explain these technical terms and relate them to the specific non-compliance or irregularity complained of. This, Petitioners failed or neglected to lead PW6 in evidence to explain these terms or to tie Exhibits P7; 1-25, P8; 1-58 and P9 to the facts pleaded in the Petition in order to clearly demonstrate how the total votes recorded in Exhibits P7; 1-25 exceeded the total accredited voters in Exhibits P8; 1-58 and P9. What we are saying here boils down to the need for the Petitioners to have called oral evidence to explain the essence of documentary evidence adduced. It has been said in host of decisions of superior Courts that a document cannot serve any useful purpose in the absence of oral evidence explaining the essence thereof. [Brown Holding Co.
66 Ltd. v. Bogoco (1971) ALL NLR 324 @ 330-331, Terab v. Lawani (1992) 3 NWLR (Pt. 232) 569 – – – The Petitioners have left this duty for us to perform. By our adversarial system of justice, we cannot give meaning to the said technical terms because we cannot play the role of a party and that of a judge at the same time [ ACN v. Lamido (2012) ALL FWLR (Pt. 630) 1316] – – Learned counsel stressed that the testimony of PW6 further placed a stamp of approval and authenticity on the unshaken and unwavering testimony of Petitioners as to the data contained in the card reader – – Counsel further submitted that persons that failed accreditation were allowed to vote. – – This submission is not borne out of the pleadings and evidence. The evidence of the PW6 is mainly on the data from the card readers and no more. – – Counsel presented alluring analysis of the so-called evidence of irregularities. This analysis (chart) is almost the same as that in Petitioners’ Reply to the 1st and 2nd Respondents’ Reply – – The chart in the said – Reply and in the final written address were not demonstrated in open Court – – to prove the irregularity or non-compliance complained of. It is
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67 on this score that we are in agreement with the submission of learned counsel to the 1st and 2nd Respondents in their reply on points of law that by the chart, the petitioners’ counsel set out to give evidence on the documents tendered in court. The Supreme Court deprecated similar action of counsel in the case of Ucha v. Elechi [2012] 13 NWLR (PT.1317) 330 – – – Be that as it may and for the avoidance of doubt, we observe from the said chart – – that the total accredited voters from the data in the card readers [used in the polling units complained of] substantially tallied with the accredited voters as recorded in the result sheets. Also from the chart, the total votes cast at the said polling units did not exceed the total accredited voters from the card readers. However, both the chart [and the evidence of PW6] showed that the total accredited voters from the data in the card readers were made up of “success” and failed”. As we said before, none of the witnesses explained these technical terms. There is no evidence to suggest, for example, that voters who fell under “failed” or “success” in the card readers were not entitled to vote. – – the petitioners
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68 failed or neglected to lead PW6 [their witness] to explain these terms and there was no evidence to link the data of total accreditation from card readers, success and failure to the complaint – – It is – not surprising that counsel for the Respondents did not cross examine PW6 since he did not say anything to link data from the card readers to the complaint – – it is necessary to underscore the point that the Petitioners did not call their polling agents or presiding officers who were at the said polling units to give evidence to prove that persons who failed accreditation were allowed to vote. The PW1 – PW5 admitted under cross examination that the Petitioners had polling agents at the said polling units. The Petitioners did not give any reason for not calling these polling agents to testify. It is the law that the best evidence of what happened at a polling unit during an election is the evidence of a polling agent [or presiding officer] who was physically present at the polling unit and who saw what transpired at the election. [Gundiri v. Nyako [2014] 2 NWLR (Pt.1391) 211] – – We note that the Petitioners did not allege that their polling agents did not
69 voluntarily sign the election results at their respective polling units. – – The fact that the Petitioners’ polling agents voluntarily signed the election results in – polling units casts a big question mark on [and renders incredible] the allegation that persons who failed accreditation were allowed to vote. – – This fact renders improbable and untenable the Petitioners’ allegation – – that the accreditation as reflected in the votes recorded did not tally with the accreditation as recorded in the card readers in the said polling units. It is our view that the Petitioners failed to prove the allegations of irregularity and non-compliance – – ”
The Appellants referred us to the following authorities on “election”-
– APGA v. Ikedi Ohakim & Ors (2009) 4 NWLR (Pt. 1130) 11
– Aondoakaa v. Ajo (1995) 5 NWLR (Pt. 602) 206-
– Igodo v. Owulo (1999) 5 NWLR (Pt. 601) 70
– INEC v. Onyimbah E.C. Ray & Ors (2004) 14 NWLR (Pt. 892) 92
– Ojukwu v. Obasanjo & Ors (2004) 12 NWLR (Pt. 886) 169
– Ajadi v. Ajibola & Ors (2004) 16 NWLR (Pt. 898) 91
– Terab v. Lawan (1992) 3 NWLR (Pt. 231).
They submitted that with the frontloading system, it is trite practice that written
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70 deposition of the witness as contained in the Statement on Oath becomes his oral evidence as if it were said verbatim in the witness box – Paragraphs 41(3) of First Schedule to the Electoral Act, Aregbesola v. Oyinlola (supra) cited, that they tendered Exhibits P1 to P10, which are mostly documentary evidence, and more reliable than oral evidence, citing INEC v. Oshiomole [2009] 4 NWLR (Pt.1132) 602 that it is settled that where irregularities and non-compliance is alleged, proof unlike that of corrupt practices, is on a balance of probability, citing Aregbesola v. Oyinlola (supra), which relied on Omoboriowo v. Ajasin (1984) 1 SC 206; that the evidence of PW6 is unshaken that the data recoverable from the Card Readers, Exhibits P8 (1-58) & P9, are true representation of Total Accredited Voters in each Polling Units, which tally and corroborates their testimony in their Reply; that the allegation of inconsistency/difference between total accredited voters and total votes cast presented by PW6 showed the effect of non-compliance with the Act, rules and regulations; that it is not in dispute that the Card reader machines were meant to be used for the
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71 Election, and their witnesses, under cross-examination, said-
– PW3, David Idowu, stated that the Card readers for some of the cards showed Red which signifies Fail/Invalid but that the said voters were allowed to vote.
– PW4, Ramirez Atagana, stated that he was accredited before voting. In the five (5) Polling Units, the card reader machines were not duly used according to specification. That according to INEC guideline, every eligible voters should go through accreditation when he/she comes forward, presents PVC Card to Presiding Officers. The INEC officials place it under the machine and then biometrics is taken. Once it is valid, it shows Green light (Success). If it is invalid it shows RED light (Fail). Not every voter showed success but the invalid were still allowed to vote.
– PW5, Musa Oladapo, stated that the card readers did not verify some of the cards because it was blinking RED. This means that the biometric does not tally with the card and were not accepted but the INEC official went ahead to allow them to vote and also gave indelible inks on their fingers. He complained about this to the security officers on duty which they ignored. That, for
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72 instance, in Ketu card reader recorded 289 as being successful but 326 voted. They contend that the process of accreditation was adequately explained by their witnesses, and argued that Gundiri v. Nyako (supra) relied on by the lower Tribunal in holding that they should have called Polling Agents as witnesses of what happened at the 30 Polling Units is distinguishable from this case; that testimony of PW6,?a subpoenaed witness from INEC, is that the Card Readers were adequately used, and that he has personal knowledge of the machines under control during and after the election, and this Court can and should rely on his evidence in line with INEC v. Oshiomole (supra) that they demonstrated, reproduced and presented the analysis of evidence of irregularities (with Remarks) in their Exhibits and Final Written Address; that that case of Ucha v. Elechi (supra) relied on by the Tribunal in holding that their Chart is not borne out of evidence is distinguishable from the facts of this case; and that the discrepancies and irregularities were not controverted by any of the Respondents, and unchallenged evidence is deemed admitted and the Court is bound to act on same,
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73 citing American Cyanamid Co. v. Vitality Pharmaceuticals Ltd . (1991) SCNJ 42, Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417. Furthermore, that total sum of accreditation recorded in Card Readers, do not tally with total sum of accreditation recorded in Exhibit P10 (CTC of Printout from Card Reader for Ojo LGA) in the affected Polling Units; that they demonstrated by overwhelming and convincing evidence that –
1. There were irregularities and non-compliance with the Electoral Act and Election Guidelines regarding accreditation and voting.
2. There were discrepancies between figures declared as successfully accredited voters and the total votes cast.
3. There were discrepancies in the accreditation recorded in forms EC8A(1) and 8B(1) marked as Exhibits P6: 1-6 and the evidence elicited from PW6 at the trial from Exhibits P8 (1-60) and P9.
They urged us to hold that the burden of proof of irregularities and non-compliance with the Electoral Act, was discharged by them, citing Uzu & Anor v. Ogbu & Ors (2012) LPELR-9775 (CA), and further submitted — That the lower Tribunal did an improper evaluation of their evidence in respect of the 30 polling Units
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74 complained of, hence it came to an illogical conclusion that they merely proved inconsistencies in figures in respect of 25 Polling units whereas it failed to consider Exhibits P6; 1-6 (Form EC 8B1 – Summary of Results of Polling Units) that was uncontradicted by the Respondents.
– That they are also seeking by way of alternative prayers in paragraph 28 [K] and [L] that the elections and results emanating for the affected Polling Units as listed in the Petition be nullified and an order of this Court directing the 3rd Respondent to conduct fresh elections in the affected Polling Units.
– That the lower Tribunal in its decision held that the 1st Respondent would still be the winner upon cancellation of 25 polling Units (as against 30 polling units) complained of. But their ground on the issue of irregularity was brought pursuant to Section 138(1)(b) of the Electoral Act, and the relief sought is the nullification of the elections and results emanating from the affected Polling Units and ordering of fresh election in the affected polling units
– That the Tribunal was wrong when it embarked on a voyage or expedition of its own volition, without any prayers/relief
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75 sought by any of the parties, by cancellation of the said votes in 25 Polling Units and consequent declaration of the 1st Respondent as winner of the election based on the remnant votes – Ayoade v. Spring Bank Plc & Anor. (2013) LPELR-20763 (CA) cited. – That it is trite that a Court of law must not grant to a party a relief which he has not sought – Ekpenyong v. Nyong (1975) 2 SC 71, Kalio v. Daniel-Kalio (1975) 2 SC 15, Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192, Olorotimi v. Ige (1993) 8 NWLR (Pt. 311) 257, Fatunbi v. Olanloye (2004) 12 NWLR (Pt. 887) 229 and Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53 cited, and
– The Respondents did not file cross petition to have warranted the cancellation and declaration of the 1st Respondent as the winner. The Tribunal embarked on the calculation, arithmetic addition and subtraction that should have been done by the Respondent.
The 1st and 2nd Respondents took on this last Issue under the following –
“Dumping: Need to call person that participated in the making of documents; Abandoned Pleadings; Petitioners’ Pleadings at variance with evidence; Peculiarity of the testimony of PW6; Inconsistent/contradictory
76 evidence of the Petitioners; and Charts”.
However, I do not intend to join them on an academic exercise; I will deal with the Issue by considering salient points in the Tribunal’s Judgment that are likely to make a difference if we find that the Tribunal was wrong in its reasoning or that it arrived at a wrong conclusion that is likely to or has occasioned a miscarriage of justice against the Appellants, if any.
Let us start with the issue of dumping, the 1st and 2nd Respondents submitted that the Appellants’ failure to relate the documents tendered by them to specific areas of their case rendered the documents inactive. They pointed out that PW1 and PW6 tendered a bundle of documents, and argued that PW1 never stated the purpose for which the documents were tendered nor tie anyone of them to a specific area of the Petition; that he failed to show how they relate to allegations of corrupt practices or non-compliance with Section 138(1)(b) of the Electoral Act, which is nothing but a classic case of dumping of documents on the Tribunal, and the effect of which is that such documents are worthless in evidence. They also referred us to the following authorities on
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77 the subject – – Ucha v. Elechi (supra), relied upon by the lower Tribunal, where the Supreme Court per Rhodes-Vivour, JSC, stated as follows-
“When a party decides to rely on documents to prove his case, there must be a link between the documents and the specific areas of the petition. He must relate each document for the specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial Court. No Court would spend precious judicial time linking documents to specific areas of a party’s case.”
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ACN v. Lamido ((supra), also relied upon by the lower Tribunal –
“The Appellants also complained in the Petition of deliberate wrong entries made by the 3rd Respondent’s agents or representatives at the units, wards, local government areas and state level collation centres and that the results of the election of Jigawa State were jettisoned and altered. All these serious allegations in various paragraphs of the petition must be supported by oral evidence to tie the relevant documents admitted in evidence to the various acts of non-compliance or alterations complained of in the documents. It is certainly not the duty of the
78 trial Tribunal or the Court below to place Exhibits ‘E’ – ‘Z’ and 1-36 on the table and examine them one by one in order to determine whether or not the Appellant’s petition had been established”.
– Abubakar v. Yar’Adua [2008] 19 NWLR (Pt. 1120) 1 at page 155-
“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”.
– PDP v. INEC (2012) LPELR – 8369 (CA) Pp.17 – 18 –
“This argument cannot avail the Appellants in view of the numerous decisions of the apex Court and this Court to the effect that documents must not only be tendered but should be related specifically to areas of complaint through witnesses. The apex Court clearly
79 stated the position in Jalingo v. Nyame (1992) 3 NWLR (Pt. 231) 538 wherein it 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 open court.”
Furthermore, in INEC v. Abubakar & Anor (2009) 1 NWLR (Pt. 143) 259 at 294 paras E-F. Belgore JCA in his lead Judgment held:
“Documents were simply dumped on the lower Tribunal without a nexus being established between those documents and the Petition before it. The Tribunal cannot on its own set about conducting investigation as to the import of the contents of those documents. That is an inquisition, which has no place in our laws. The lower tribunal has no business to investigate the contents of the document dumped on it by the 1st Respondent who did not explain what he wanted the Tribunal to do with them, it is this vacuum that learned counsel for the 1st Respondent now tries to fill albeit belated.”
They added that a Court cannot and should not
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80 embark on a voyage of discovery by untying bundles of documents, the Petitioners failed to tie to their case in open Court – Sa’eed v. Yakowa [2013] 7 NWLR (1352) 124; and that since the dumped documents are in a dormant state, this Court should decline any invitation or temptation to render them active as it will lead to infraction of fair hearing and administering cloistered justice – ACN v. Lamido (supra). We were urged to disregard their argument as illogical since the fact that the documents are frontloaded does not stop a Petitioner from relating them to the specific areas of his case in Court. The 2nd and 4th Respondents did not address this Issue in their brief.
And I do not have much to say as the authorities relied upon by the lower Tribunal, and cited by the 1st and 2nd Respondents speak volumes. The Appellants did not say they made any attempt to relate the Exhibits to specific areas of their case. What they say is that they had frontloaded the documents, which is enough, but this argument flies in the face of the Supreme Court decisions that say otherwise. The lower Tribunal is right.
We come to the issue of PW6, who was subpoenaed to
81 testify, and whom the Tribunal held debunked the allegation in the Petition that Card Readers were not available, and even where available, were not used. The 1st and 2nd Respondents submitted that he gave oral evidence totally at variance with the allegation in the Appellant’s Petition; that data read out from Exhibit P8 (1-60) that he tendered established the use of card readers for accreditation of voters in the said Polling units; that his testimony contradicted the allegation of irregularity or non-compliance, but PW6 was never declared as a hostile witness, and the Appellants’ case suffered an irreparable evidential implosion. They cited Doma v. INEC [2012] 13 NWLR (Pt. 1317) 297, where Fabiyi, JSC, observed –
“PW40, the Director of Operations of INEC, was called by the Appellants as their witness. Their case must stand or fall with his evidence which did not help their case at all. He gave evidence that contradicted the evidence of other witnesses. PW40 stated that elections where the 4th Respondent won were free and fair. He said there was non-compliance with the Electoral Act in Doma Local Government, Laminga Ward, Anna Town of Alaye Ward in Doma Local
82 Government, Oshugu polling unit of Loko Ward in Nasarawa Local Government where 1st Appellant had upper hand. This is admission against interest. The evidence of other witnesses cannot be employed to counter that of PW40 who was not declared a hostile witness and not re-examined. Same points at internal contradiction in the evidence adduced by the Appellants. The Court will not pick and choose which one to believe and which to disbelieve. See: Boy Muka v. The State (1976) 9-10 SC 305; Onyemena v. The State (1974) 1 All NLR 522 at 530. Like it happened in the case of Waziri Ibrahim v. Shehu Shagari (supra), PW40 called by the Appellants herein helped to disprove most of the allegations they sought to rely upon.?It is not like the position in I.N.E.C. v. Oshiomhole (2009) 4 NWLR (Pt.1132) 607 where PW47 therein testified in support of Comrade Oshiomhole. The lower Court was in order in the stance posed by it. The issue is, without any equivocation, resolved in favour of the respondents.”
In their view, the Appellants’ case as presented at the Tribunal had been given a befitting burial by the damning evidence of PW6. We were urged to uphold its decision that their
?
83evidence “is contradictory and unreliable”.
The 1st and 2nd Respondents are right without a question. PW6, who is an Administrative Officer with INEC, said he was at the Tribunal “pursuant to a subpoena issued by the Tribunal on 3/7/2015 directed at the Director, Information and Communication Technology, INEC”.
He may have been subpoenaed but he was Appellants’ witness, and the term “witness” in its strict legal sense, means one who gives evidence in a cause before a Court; and in its general sense includes all persons from whose lips testimony is extracted in any judicial proceeding – see Black’s Law Dictionary, 9th Ed.
?In addition to Section 230 and 231 of the Evidence Act 2011 , which deal with how far a party may discredit his own witness, and proof of contradictory statement of hostile witness, Section 210 of the same Evidence Act further provides as follows –
“The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the Court by the party who calls him –
(a) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(b)
84 By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
The decision may be that of the Court, but it is settled that an application to treat a witness as hostile should be made as soon as it is obvious that he is hostile or his testimony will be adverse to the interest of the party. Thus, a party who fails to take such steps will be bound by the evidence of such witness, and will not be allowed to complain on appeal – see Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 SC, where Tobi, JSC observed-
“The Evidence Act anticipated this type of situation and made provision in the Act for a party to treat his own witness as hostile in relevant cases. – – In my view, the Appellants had all the opportunity to take advantage of Section 207 (Section 230) of the Evidence Act Since they did not take advantage of the provisions of the Evidence Act, they cannot repair the damage done at the trial in this Court. This Court has not the mechanical tool to effect any repairs.”
What
?
85 is more, where a witness gives evidence against a party that called him, such evidence will be regarded as one against interest, and unless explanations are given to the Court’s satisfaction that such admission should not be regarded, due weight shall be given to it as such – see Odi v. Iyala (supra), Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517.
In this case, the Appellants built their case around the fact that the Card Readers were not available, and were available, were not used.
PW6 was subpoenaed to give evidence and tender card readers in respect of polling units and satellites voting points complained of in the Petition presented by the Appellants. PW6 tendered 60 card readers and read out the data from the card readers. The Tribunal then found that his evidence “left no one in doubt that card readers were used in the polling units – – where the Petitioners alleged that card readers were not used. What is that except an admission against interest? The Appellants’ case at the Tribunal collapsed like a pack of cards with the evidence of PW6, and since no attempt was even made to declare him as a hostile witness, this Court cannot put the Appellants’ pack
86of cards back together again. In the circumstances, it will be an exercise in futility to look into any other issues that will do nothing and add nothing to the outcome of this appeal.
The bottom line is that the decision of the lower Tribunal is very sound, and there are no issues canvassed herein that can alter or overturn it.
The end result is that this Appeal fails, and is hereby dismissed. The Judgment of the lower Tribunal delivered on 21/10/2015 is affirmed. Each Party will bear their own cost.
CHINWE EUGENIA IYIZOBA, J.C.A. : I agree.
TIJJANI ABUBAKAR, J.C.A. : I agree.
Appearances
Mrs. Munirat Folasade Tinubu
Adeniyi Pokanu, Esq.
Elias Adadi, Esq.
A.O. Aliyu, Esq.
For Appellants
A.O. Adegoke, Esq.
Lanre Baruwa, Esq.
Ayotunde Ogunleye, Esq.
Azeez Bakare, Esq.
For Respondents
87
Appearances
Mrs. Munirat Folasade Tinubu
Adeniyi Pokanu, Esq.
Elias Adadi, Esq.
A. O. Aliyu, Esq.For Appellant
AND
A. O. Adegoke, Esq.
Lanre Baruwa Esq.
Ayotunde Ogunleye Esq.
Azeez Bakare Esq.
(1st and 2nd respondents)For Respondent
