JOSEPH TOR AYE & ANOR v. ORBAN JACOB TERUNGWA & ORS
(2019)LCN/12719(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of October, 2019
CA/MK/EP/HA/21/2019
RATIO
ELECTION: RIGHT OF A PETITIONER
“A petitioner generally speaking is free to present his petition before an election tribunal to question an election on any one or more of the grounds specified in Section 138 (1) supra depending on the facts and circumstances of his case. SeeOshiomhole v Airhiavbere (2013) 7 NWLR (Pt. 1353) 376, 396. Each of the grounds is independent of the other. The success of one ground is not dependent on another ground or other grounds. Having abandoned ground (a), appellants were left with ground (b) which was sufficient to sustain the petition if proved. The ground was that the 1st respondent was not duly elected by a majority of lawful votes cast at the election. The term ‘lawful votes’ was defined as follows in Ejiogu v Irona (2009) 4 NWLR (Pt. 1132) 5 13, 561: A valid or lawful vote to me is a vote cast at an election by a registered and duly accredited voter, which is in compliance with the provisions of the Electoral Act.” PER JOSEPH EYO EKANEM, J.C.A.
ELECTION: REBUTTING A PETITION
“In respect of the merit of the petition, it must be stated that there is a rebuttable presumption that the result of an election declared by INEC is correct and authentic. The burden therefore lies on the party that disputes the correctness and authenticity of the result to lead rebuttal evidence. If the party, namely; the petitioner succeeds in adducing sufficient rebuttal evidence, he is said to have discharged the burden of proof that rests on him. The burden then shifts to his opponent to prove that the facts established by the evidence of the petitioner would not result in the Court giving judgment in the petitioner’s favour. Where the petitioner fails to lead rebuttal evidence or sufficient rebuttal evidence, there is no need to consider the evidence or the case of the respondent. See Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1, 122 and 309 – 310.”PER JOSEPH EYO EKANEM, J.C.A.
ELECTION: ROLE OF A POLLING AGENTS
“The main role of the polling agents as prescribed in Section 36(1) is mainly to be the representative of the political party at every polling station. A polling agent is usually posted to a particular polling station as the agent of the political party that appointed him. In other words, a polling agent is the eyes and the ears of the political party that appointed him, and therefore the candidate, at his polling unit. If there is an allegation of an infraction at the polling unit, he is the one to testify thereon and not the candidate who was not at the polling unit. The evidence of such a candidate in respect of events at the polling unit would be considered as hear-say and therefore unreliable if it is given to prove such an occurrence. Furthermore, documents or electoral forms made at the polling unit if tendered through the candidate would be considered as unreliable and therefore accorded no probative value even if they are certified true copies of public documents since he was neither their maker nor privy to their making.” PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
JOSEPH TOR AYE Appellant(s)
AND
1. ORBAN JACOB TERUNGWA
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH EYO EKANEM, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the National and State Houses of Assembly Election Tribunal, Makurdi, delivered on 5/9/2019, in Petition No. EPT/BN.SA/29/2019. In the judgment, the Tribunal (coram: Adeleye, Ken – Eze, J.J. and Hon. Kadi Mammadi) dismissed the petition of the appellants which questioned the election and return of the 1st respondent as the winner of the election for the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on 9/3/2019 and 23/3/2019.
The facts of the case leading to this appeal are that on 9/3/2019, the 3rd respondent conducted election for the membership of the Benue State House of Assembly, for Katsina – Ala West Constituency. The said election was declared inconclusive and so a supplementary election was conducted on 23/3/2019 in some polling units and voting points including RCM School, Igba/School Premises (code 002) and Une Village/Une Village Square (code 009) voting point. The contest was between 14 candidates who were sponsored by their parties. The 1st appellant was sponsored by the 2nd appellant while the 1st respondent was sponsored by the 2nd respondent. At the end of the exercise, the 3rd respondent declared and returned the 1st respondent as the winner of the election having polled a total of 8,610 votes. The 1st respondent was the runner – up having polled a total of 8,583 votes.
Dissatisfied with the result, the appellants filed a petition at the tribunal questioning the election and return. They claimed the following reliefs:
(a)A DECLARATION that the election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 9th day of March, 2019 in RCM School, Igba/School Premises (code 002) polling unit was invalid by reason of non – compliance with the provisions of the Electoral Act, 2010 (as amended) and Manual for Election Officials, 2019.
(b) A DECLARATION that the supplementary election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 23rd day of March, 2019 in Une Village Square (code 009) voting point was invalid by reason of non – compliance with the provisions of the Electoral Act, 2010 (as amended) and Manual for Election Officials, 2019.
(c) A DECLARATION that the 1st Respondent, Orban Jacob Terungwa did not win the election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 9th day of March, 2019 and the supplementary election held on the 23rd day of March, 2019 by a majority of lawful votes cast at the said election.
(d) A DECLARATION that the return of the 1st Respondent as the winner of the election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 9th day of March, 2019 and the supplementary election held on the 23rd day of March, 2019 by the 3rd Respondent was unlawful as same was not in compliance with the provisions of the Electoral Act 2010 (as amended) and the Manual for Election Officials 2019.
(e) A DECLARATION that the 1st petitioner, Joseph Tor Aye was the winner of the election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 9th day of March, 2019 and the supplementary election held on the 23rd day of March, 2019 and ought to have been declared and returned as the winner of the said election by the 3rd respondent having polled Eight Thousand, Five Hundred and Six (8506) votes as against the 1st respondent who polled Seven Thousand, Six Hundred and Twenty Eight (7628) votes.
(f) AN ORDER of the Honourable Tribunal nullifying the election and result of the election in RCM School, Igba/School Premises (code 002) polling unit for non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019, being invalid and unlawful.
(g) AN ORDER of the Honourable Tribunal nullifying the election and result of the election in Une Village/Une Village Square (code 009) voting point for non- compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019, being invalid and unlawful.
(h) AN ORDER of the Honourable Tribunal nullifying the declaration and return of 1st Respondent as the winner of the election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 9th day of March, 2019 and the supplementary election held on the 23rd day of March, 2019.
(i) AN ORDER of the Honourable Tribunal quashing the certificate of return issued to the 1st Respondent as the winner of the election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 9th day of March, 2019 and the supplementary election held on the 23rd day of March, 2019.
(j) AN ORDER of the Honourable Tribunal directing the 1st respondent to vacate the office of the membership to the Benue State House of Assembly.
(k) AN ORDER of the Honourable Tribunal directing the 3rd respondent to issue the certificate of return to the 1st petitioner as the duly elected and winner of the election to the membership of the Benue State House of Assembly, Katsina – Ala West State Constituency held on the 9th day of March, 2019 and the supplementary election held on the 23rd day of March, 2019.
(l) AN ORDER of the Honourable Tribunal directing the 1st respondent to refund to the Benue State Government, the salaries, allowances and emoluments of whatever kind collected from the government of Benue State as a member of the Benue State House of Assembly.
(m)AND for such further order(s) as the Tribunal may deem fit to make in the circumstances.
The respondents filed replies denying the claims of the appellants. At the hearing of the petition, the appellants called only one witness, the PW1, viz; the 1st appellant. 9 exhibits were tendered through him. The 1st and 2nd respondents testified through 5 witnesses (RW1 -1 to RW1 – 5) and tendered 3 exhibits. The 3rd respondent testified through 1 witness, RW3- 1 and tendered no exhibit. At the close of evidence, the parties filed written addresses which were adopted before the tribunal by counsel. In the appellants’ address, their counsel abandoned ground (a) of the petition leaving only ground (b) as the ground of the petition.
The tribunal as earlier stated, dismissed the petition.
Aggrieved by the decision, the appellants filed a notice of appeal against the same. The notice of appeal incorporates 11 grounds of appeal.
Pursuant to the rules guiding election petition appeals, the appellants filed:
(i) A brief of argument on 25/9/2019;
(ii) a reply brief filed on 2/10/2019;
(iii) a reply brief to 2nd respondent’s brief filed on 2/10/2019; and
(iv) a reply brief to 3rd respondent’s brief, filed on 3/10/2019.
The 1st respondent filed a brief of argument on 30/9/2019. The 2nd respondent filed a brief on 30/9/2019 which incorporates a notice of preliminary objection. The 3rd respondent filed its brief of argument on 2/10/2019.
At the hearing of the appeal on 14/10/2019, T.S. Shior, Esq. applied to withdraw his preliminary objection contained in the 2nd respondent’s brief of argument. On the agreement of other counsel, the application was granted and the notice of preliminary objection along with argument in respect thereof was struck out.
Thereafter, A.I. Wombo, Esq. for the appellants referred to and adopted the briefs of argument filed on behalf of the appellants in urging the Court to allow the appeal.
Innocent Daa’gba, Esq. for 1st respondent adopted and relied on 1st respondent’s brief of argument in urging the Court to dismiss the appeal.
T.S. Shior, Esq. for the 2nd respondent adopted 2nd respondent’s brief of argument in urging the court to dismiss the appeal.
E.E. Ogbodu, Esq. for the 3rd respondent similarly adopted and relied on the 3rd respondent’s brief of argument in urging the Court to dismiss the appeal.
In the appellant’s brief of argument, the following issues are formulated for the determination of the appeal:
(1) Whether the tribunal was correct in law having found and held in its ruling that the 1st and 2nd respondents? joint reply to the petition was incompetent but still went ahead in its main judgment to make reference to and considered the evidence of the 1st and 2nd respondents on the mode of accreditation, which evidence was hinged on the said reply found and held to be incompetent by the same tribunal? (Grounds 1 and 6).
(2) Whether by the pleadings, evidence adduced and the reliefs sought at the trial of the petition, the votes established to be unlawful in the polling unit and voting point complained of in the petition cannot be nullified on the basis that the petition was not anchored on the ground of non- compliance and corrupt practices? (Ground 2 and 3).
(3) Whether the evidence of PW1 which was from the personal knowledge of what PW1 saw from exhibits P1 – P9 supported by the evidence elicited under cross examination of RW3 – 1 was not enough to prove that there was over voting in Une voting point? (Ground 4, 5, 7, 8 and 9).
(4) Whether the tribunal can in law, entertain a complaint questioning the conduct of an election by any other method apart from an election petition or cross petition? (Ground 10).?
In the 1st respondent’s brief of argument, the following issues have been formulated for the determination of the appeal:
(1) Whether the trial tribunal was right in law to have made references to the reply filed as joint reply on behalf of the 1st and 2nd respondents in its evaluation of the evidence of accreditation before her, even though it had declared the said joint reply as incompetent? (Grounds 1 &6)
(2) Whether on the pleadings and the evidence as adduced by the appellants sole witness at the trial tribunal was sufficient in the circumstances to have led to the nullification of the result of the election on grounds of non-compliance and corrupt practices and the declaration of the 1st appellant as winner of the election for the Katsina – Ala West State Constituency? (Grounds 2, 3, 4, 5, 7, 8 and 9)
(3) Whether the votes/scores pleaded and relied upon by the 1st respondent in his reply to the votes/scores pleaded and relied upon by the appellants in their petition amounted to another method of filing a petition having regard to the provisions of Paragraph 12 (2) and 15 of the 1st Schedule to the Electoral Act 2010 (as amended)? (Ground 10).
Counsel for the 2nd respondent in his brief of argument adopts the issues formulated by appellants’ counsel.
In the 3rd respondent’s brief of argument, the following issue is distilled for the determination of the appeal:
‘Whether having withdrawn and abandoned ground (a) of the petition, the Petitioners were able to establish before the Tribunal by way of concrete evidence that the 1st Respondent was not elected by majority of lawful votes cast at the election into Katsina – Ala West State Constituency of Benue State held on 9th and 23rd March, 2019.’
It is my view that three issues arise for the determination of this appeal. The issues are:
(1) Was the tribunal right in law in referring to and considering the evidence of the witnesses of the 1st and 2nd respondents after holding that their joint reply was incompetent?
(2) Was the tribunal right in dismissing the petition of the appellants?
(3) Was the tribunal right in holding that paragraphs 15, 16, 35 to 50 of the 1st and 2nd respondents? reply did not contain extraneous matters not related to the petition?
Issue 1 – Was the tribunal right in law in referring to and considering the evidence of the witnesses of the 1st and 2nd respondents after holding that their joint reply was incompetent?
Appellants’ counsel straightaway gave a negative answer to the issue. He stated that the tribunal upheld the objection of the appellants challenging the competence of the 1st and 2nd respondents’ joint reply, but that the tribunal in its final judgment still made reference to and considered the evidence of 1st respondent’s witnesses in partial determination of the petition on the use of card reader. It was his submission that since the tribunal declared the joint reply of the 1st and 2nd respondents to be incompetent, it had no jurisdiction to look into the 1st respondent’s witnesses’ evidence. He contended that the evidence of those witnesses went to no issue. It was his further contention that by implication the 1st and 2nd respondents did not defend the petition and so the appellants were entitled to judgment against them by virtue of Order 14 Rules 7 and 8 of the Federal High Court (Civil Procedure) Rules 2019.
Counsel for the 1st respondent stated that the 1st respondent has cross – appealed on the failure of the tribunal to rule on the application (by 1st respondent) to strike out the name of the 2nd respondent from the joint reply. He submitted that by virtue of Paragraph 49 of the 1st Schedule to the Electoral Act, 2010 (as amended) a petition jointly filed against respondents is taken or deemed to be a separate petition against each of the respondents. It was his further submission that though a joint reply may be filed, the individual right of a respondent cannot be taken away due to a procedural error. He therefore contended that the tribunal had no legal basis in holding that the joint reply cannot be separated. He posited that it was within the law for the 1st respondent to take steps to correct the error of misjoining the name of the 2nd respondent to his reply. He placed reliance on Order 4 Rule 14(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009, and posited that the tribunal ought to have struck out the name of the 2nd respondent from the title and paragraphs of the process. He urged the Court to set aside the ruling of the tribunal (that the joint reply of 1st and 2nd respondents is incompetent).
Counsel submitted that assuming but without conceding that the 1st respondent had no defence/reply to the petition, the burden still rested on the appellants to prove their claim as it was declaratory in nature. It was finally submitted that a respondent who fails to file pleadings is still entitled to be heard on points of law and so the tribunal was right to have referred to the joint reply on the issue of accreditation.
For the 2nd respondent, it was submitted by its counsel that even if issue 1 was resolved in appellants’ favour, it would not assist their case as they failed to prove the allegations in their petition.
Counsel for the 3rd respondent proffered a similar argument.
The reply of appellants’ counsel is in the main a rehash of his argument in the appellants’ brief. I shall therefore discountenance it.
In resolving this issue, it is pertinent to first address the argument of 1st respondent’s counsel at pages 6 to 13, paragraphs 3.02 – 3.11 of his brief of argument. The argument in sum attacks the ruling of the tribunal that the joint reply of the 1st and 2nd respondents is incompetent. In essence, it urges this Court to reverse that finding. The duty of a respondent is to defend the judgment of the lower Court or tribunal. His duty is not to attack the judgment which is given in his favour except where he disagrees with some aspect of the judgment or decision in which case he is required to file a cross – appeal in which he prays the appellate Court to set aside the aspect of the judgment or decision he considers to be against his interest. See Nsirim V Nsirim (2016) 5 NWLR (Pt. 1504) 42, 59, Zakirai V Muhammed (2017) 17 NWLR (Pt. 1594) 181, 214 and Oghoyone V Oghoyone (2010) 3 NWLR (Pt. 1182) 564, 588.
Counsel for the 1st respondent stated that the 1st respondent has filed a cross – appeal against the finding of the tribunal that the joint reply of the 1st and 2nd respondents was incompetent. I take judicial notice of the fact that the said cross – appeal No. CA/MK/EP/22/2019 has been struck out for being incompetent. It follows therefore that the decision of the tribunal that the joint reply of the 1st and 2nd respondents was incompetent subsists. The argument of the 1st respondent referred to above apart from being outside the scope of the issue is caught by the subsisting decision of the tribunal. I therefore discountenance it.
After finding that the joint reply was incompetent, the tribunal out of abundance of caution, stated at page 566 of the record of appeal that,
Assuming we are wrong in our finding, we shall proceed to hear this petition on its merit.
The tribunal thereafter considered the merits of the petition based on all the pleadings filed including the joint reply and the witnesses of the parties including the witnesses of the 1st and 2nd respondents.
It is my view that since the decision of the tribunal that the joint reply of the 1st and 2nd respondents was incompetent subsists, the evidence of the witnesses of the 1st respondent, viz; RW1 – 1, RW1 – 2, RW1 – 3, RW1 – 4 and RW1 – 5 had no foundation to stand on. See Hamzat V Sanni (2015) 5 NWLR (Pt. 1453) 486, 506.
The finding of the tribunal attacked by appellants’ counsel is as follows:
‘It couldn’t have been said that the evidence of the 1st respondent witnesses were favourable to the petitioner’s case, the 1st respondent?s witnesses gave evidence on the use of card reader, for accreditation, but the PW1 who contested election in 2019 and who also tendered Exhibit 9 i.e Manual for Election Officials said under cross – examination that he has never heard or seen a card reader thereby making his evidence more incredible and unbelievable’. See pages 580 – 581 of the record of appeal.
I agree with appellants’ counsel that the tribunal was wrong in referring to and considering the evidence of 1st respondent’s witnesses after holding that the joint reply upon which it was based was incompetent. But it must be mentioned that this was done in response to appellants’ submission that the evidence of 1st respondent’s witnesses was favourable to the case of the appellants. That however is not justification for the reference. It must however be stated that the finding of the tribunal quoted above was based partly on the evidence of 1st respondent’s phantom witnesses and in another part on the fact that the 1st appellant contested the election and tendered the Manual for Election Officials (Exhibit 9) (which contains elaborate provisions for use of the INEC Smart Card Reader). It was incredible for the 1st appellant to say that he had never heard of or seen the Smart Card Reader. This is especially so in the light of the evidence of RW3 – 1 (the Electoral Officer for Katsina – Ala Local Government), who testified for the 3rd respondent that the Smart Card Reader was deployed to all the (polling) Units. Though the reference by the tribunal to the evidence of 1st respondent’s witnesses was erroneous, yet the finding of the tribunal quoted above cannot be set aside as it is supported by evidence on record. Thus no miscarriage of justice has been occasioned to the appellants.
Before rounding up on the issue, I shall pause to examine the submission of appellants’ counsel that since the joint reply of the 1st and 2nd respondents was found to be incompetent, the implication is that the 1st and 2nd respondents did not defend the petition; and so by Order 14 Rules 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2019 the appellants were entitled to judgment against the 1st and 2nd respondents. This argument is not within the scope of the issue. Besides it is a fresh issue which requires leave of Court before it can be raised. No such leave was applied for and obtained. I therefore discountenance the argument.
Nevertheless, I enter a negative answer to issue 1 and resolve it in favour of the appellants.
Issue 2 ‘Was the tribunal right in dismissing the petition ofthe appellants’
Appellants’ counsel submitted that the appellants established that the votes recorded for the candidates in RCM School, Igba Polling Unit and Une Village Voting Point were unlawful votes. He added that the tribunal had the power to nullify the votes without necessarily anchoring the petition on the ground of non – compliance, which had been abandoned leaving only ground (b), viz; that 1st respondent did not win the election by the majority of lawful votes cast. He stressed that the latter ground was supported by facts separately set out in paragraphs 44 – 62 of the petition. He referred to Section 138(1) of the Electoral Act 2010 (as amended) and submitted that each ground for questioning an election is independent of the other. It was argued that the tribunal was not right in limiting nullification of votes to a petition grounded on non – compliance. This, he stated, was contrary to Section 140(1) and (3) of the Electoral Act, 2010 (as amended). He contended that appellants? reliefs (c), (e), (f), (g), (h), (i), (j), (k), (l) and (m) are anchored on the surviving second ground of the petition.
Counsel contended that the PW1 was consistent in his evidence that he perused exhibits P1, P2, P7 and P8, which were obtained from the 3rd respondent, and found in exhibit P7 that there was no accreditation of voters at RCM School, Igba Polling Unit; that PW1 also perused exhibit P8 and found evidence of overvoting. He submitted that accreditation of voters is mandatory and can only be proved by the marking or ticking of the names of voters in the register of voters and nothing more. It was his position that the total of 914 votes recorded for the 1st and 2nd respondents and the total of 145 votes recorded for the appellants in the two polling units/point were unlawful votes.
Counsel submitted that the evidence of PW1 which was from his personal knowledge of what he saw from the exhibits supported by evidence of RW3 – 1 under cross – examination was enough to establish the petition. It was therefore his contention that the tribunal was not right to have insisted that the failure of the appellants to call their polling agents in the relevant unit/point was fatal to their case. He submitted further that the appellants were bound to only rely on the register of voters and the relevant result sheets. He placed reliance on Ikpeazu V Otti (2016) 8 NWLR (Pt. 1513) 38.
1st respondent’s counsel noted that the lone appellants’ witness was not the maker of any of the documents tendered and relied upon by them and that he was not present in any of the two polling units the subject of their complaints.
He submitted that the failure of the appellants to call the polling agents to testify was fatal to their case. He placed reliance on Gundiri V Nyako (2014) 2 NWLR (Pt. 1391) 211. It was his further submission that the PW1 failed to link exhibits P7 and P8 (Registers of Voters for RCM Igba Polling Unit and Une Village Square polling unit/voting point, respectively) to exhibits P1 and P2 (Forms EC8A(1) of the two units, respectively). This, he said, is because the PW1 admitted in cross – examination that the tickings on exhibits P7 and P8 did not specifically relate to the House of Assembly election. He referred to the evidence of RW1 – 1 to RW1 – 5 which I shall ignore as it had no foundation on account of the joint reply of the 1st and 2nd respondent being declared to be incompetent.
Counsel for the 2nd respondent argued that ground two of the grounds for the petition was parasitic and dependent on ground one which was abandoned. It was therefore his submission that ground two has no legs to stand on. Indeed, he posited, the validity or lawfulness of the votes can no longer be questioned in the absence of the ground of non-compliance. He stressed that the reliefs claimed by the appellants are predicated on non-compliance with the provisions of the Electoral Act, 2010 (as amended) especially as appellants were seeking nullification of the election and results of RCM School, Igba and Une Village voting point.
Counsel posited that not being their maker, the PW1 could not lead credible evidence on exhibit P1, P2, P7 and P8 and that failure to call polling agents who were eye-witnesses was fatal to the petition.
3rd respondent’s counsel noted that the appellants’ case was mainly declaratory and therefore they were bound to prove their case to the satisfaction of the tribunal without relying on the weakness of the respondents’ case. He submitted that failure to call any witness from the polling units complained of was fatal to the petition. Counsel stated that a close look at the petition would show that all the facts alleged and documents sought to be relied on by the appellants for their claim of non-compliance with the Electoral Act were contained in the paragraphs 12 – 43 of the petition. Having abandoned ground (a) of the petition, all pleadings relating thereto, viz; paragraphs 12 -43 and the documents referred to in them must be held to have been effaced from the record. This last point on effacement of documents seems to be a fresh issue that was not raised and argued before the tribunal which also did not rule on it. I shall therefore ignore it as leave to raise it was not sought for and obtained.
In his reply, appellants’ counsel submitted but without conceding that if the appellants needed to call eye-witnesses the evidence of RW3 – 1, the Presiding officer was sufficient. Let me quickly say that RW3 – 1 was an Electoral Officer and not a Presiding Officer in a Polling Unit. Therefore the point by appellants’ counsel is not founded on fact.
It was further submitted that evidence elicited in cross – examination, which supports the case of the party cross – examining, constitutes evidence in support of the case of the party.
It needs be stated that the petition of the appellants was initially based on two grounds, to wit;
(a) that the election in RCM School, Igba/School Premises (Code 002) and Une village/Une village square (code 009) voting point was invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended), Regulations and Guidelines for the Conduct of Election and Manual for Election Officials, 2019 and
(b) that the 1st respondent was not duly elected by majority of lawful votes cast at the election.
In his final address at the tribunal, appellants’ counsel abandoned ground (a) of the petition. The tribunal in consequence, stated in its judgment at page 573 of the record as follows.
In the case at hand, a discreet look at the reliefs sought by the petitioners in their pleading would show that the reliefs in the petition are inextricably tied to ground ‘A’ of their petition which the Petitioners have abandoned, ground of non-compliance with the Electoral Act and corrupt practices are essential when a petitioner seeks nullification of votes, and where there is no ground of non-compliance with the provision of the Electoral Act, then the allegation of the non-compliance with the provision of the Electoral Act cannot be used to invalidate any of the votes as there is no ground in the petition to sustain them.
Section 138(1) of the Electoral Act, 2010 (as amended) provides that
(1) An Election may be questioned on any of the following grounds, that is to say
(a)that a person whose election is questioned was, at the time of the election, not qualified to contest.
(b) that the election was invalid by reason of corrupt practices or noncompliance with the provisions of the Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
A petitioner generally speaking is free to present his petition before an election tribunal to question an election on any one or more of the grounds specified in Section 138 (1) supra depending on the facts and circumstances of his case. SeeOshiomhole v Airhiavbere (2013) 7 NWLR (Pt. 1353) 376, 396. Each of the grounds is independent of the other. The success of one ground is not dependent on another ground or other grounds. Having abandoned ground (a), appellants were left with ground (b) which was sufficient to sustain the petition if proved. The ground was that the 1st respondent was not duly elected by a majority of lawful votes cast at the election. The term ‘lawful votes’ was defined as follows in Ejiogu v Irona (2009) 4 NWLR (Pt. 1132) 5 13, 561:
A valid or lawful vote to me is a vote cast at an election by a registered and duly accredited voter, which is in compliance with the provisions of the Electoral Act.?
It is true that with the abandonment of the ground (a), the facts pleaded in paragraphs 12 -43 of the petition to vindicate the ground in respect of RCM School, Igba/school premises and Une village/Une village Square voting points also became abandoned automatically. So also prayers (a), (b), (d), (f) and (g) which were founded on ground (a) became abandoned. Nevertheless, the extant ground (b) was fully supported by facts pleaded in paragraphs 44 ? 62 of the petition which set out facts constituting complaints of the alleged illegality of votes cast at those two polling units. The complaint in respect of RCM School Igba Polling Unit was that the votes cast there were not lawful votes.
If that was proved, it would imply that the votes cast in the polling unit were not valid votes. The figures obtained there would be subtracted from the scores of the candidates, which may affect the final result of the election. See Nweke v Ejim (1999) 11 NWLR (Pt. 625) 39. The subtraction of the votes recorded in the unit can be done without the need for ground (a), that is non-compliance with the Electoral Act and without a relief for the invalidation of those votes. This is because Section 140(3) of the Electoral Act, 2010 (as amended) provides that if the tribunal determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the tribunal or Court shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the Constitution and the Act.
Paragraph 4 (3) (a) of the 1st Schedule to the Act states that,
The election petition shall further
(a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned having polled the highest number of lawful votes cast at the election or that the election be declared nullified, as the case may be
The reliefs (c) and (e) which had earlier been set out in this judgment though not exactly worded as above fit into paragraph 4 (3) (a) and they are tied to ground (b). I fail therefore to see how the remaining reliefs (c), (e), (h), (i), (j), (k), (h) and (m) are inextricably tied to ground (a) that was abandoned. The tribunal therefore erred in so holding.
However, it must be stated that the tribunal still went ahead, inspite of its holding, to consider the petition on its merit based on ground (b). Thus the error by the tribunal did not occasion a miscarriage of justice to the appellants and therefore is not fatal to its judgment. It is not every error or mistake in a judgment that will result in an appeal being allowed. The error must be substantial in that it has occasioned a miscarriage of justice before an appellate Court will interfere. See Alao v Vice?Chancellor, University of Ilorin (2008) 1 NWLR (Pt. 1069) 421, 467 and Atungwu v Ochekwu (2015) 14 NWLR (Pt. 1375) 605,626.
In respect of the merit of the petition, it must be stated that there is a rebuttable presumption that the result of an election declared by INEC is correct and authentic. The burden therefore lies on the party that disputes the correctness and authenticity of the result to lead rebuttal evidence. If the party, namely; the petitioner succeeds in adducing sufficient rebuttal evidence, he is said to have discharged the burden of proof that rests on him. The burden then shifts to his opponent to prove that the facts established by the evidence of the petitioner would not result in the Court giving judgment in the petitioner’s favour. Where the petitioner fails to lead rebuttal evidence or sufficient rebuttal evidence, there is no need to consider the evidence or the case of the respondent. See Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1, 122 and 309 – 310.
The contention of the appellants at the tribunal was that the 1st respondent was not duly elected by a majority of lawful votes cast at the election. The focus of the complaint was on one polling unit and one voting point, viz; (i) RCM School, Igba/School premises polling unit and (ii) Une Village/Une Village Square voting point. In respect of RCM School, Igba, the case of the appellants was that there was no single ticking or marking on the Register of Voters used for the election to indicate that any of the voters in the Register of Voters was accredited to vote. In regard to Une Village Square voting point, their case was that the total number of tickings or markings on the Register of Voters was 135 while the total number of votes cast was 149 or 145. See paragraphs 51 and 52 of the petition.
To prove their case, the appellants called one witness and tendered 9 exhibits, viz; Exhibits P1 – P9. The lone witness is the 1st appellant who was the candidate. He testified that the accreditation of voters at RCM, Igba polling unit was not carried out as required by the Manual for Election Officials; that the appropriate box on the Register of Voters for the election was not marked or ticked to show that accreditation took place.
In regard to Une voting point, his evidence was that the total number of tickings or markings on the register of voters was 135 but a total of 149 votes was recorded in form EC8A (1).
In cross -examination, at page 531 of the record, he stated, I voted at Ashiek Ala township, Registration Area. I was not at the RCM Igba polling unit. I was equally not at the Une village Square polling unit. I had my agents at the RCM Igba polling unit and Une village polling units.
At page 534 of the record still under cross- examination, he stated thus;
‘I know what happened at the 2 polling units. I got to know through the documents procured from (sic) by lawyer from INEC.’
The evidence of PW1 centred on what occurred at the two polling units and yet no polling unit agent was called to testify of the events at the unit and polling point. Where a party complains of non-accreditation and over-voting, he ought to call the polling unit agents in the relevant polling units to prove the same apart from tendering the relevant documents including the Register of voters and the results in the appropriate forms. The importance of a polling agent was emphasised by Akintan, JSC, in Buhari v Obasanjo supra. 306 thus;
The main role of the polling agents as prescribed in Section 36(1) is mainly to be the representative of the political party at every polling station. A polling agent is usually posted to a particular polling station as the agent of the political party that appointed him.
In other words, a polling agent is the eyes and the ears of the political party that appointed him, and therefore the candidate, at his polling unit. If there is an allegation of an infraction at the polling unit, he is the one to testify thereon and not the candidate who was not at the polling unit. The evidence of such a candidate in respect of events at the polling unit would be considered as hear-say and therefore unreliable if it is given to prove such an occurrence. Furthermore, documents or electoral forms made at the polling unit if tendered through the candidate would be considered as unreliable and therefore accorded no probative value even if they are certified true copies of public documents since he was neither their maker nor privy to their making.
In Gundiri v Nyako (2014) 2 NWLR (Pt. 1391) 211, 245 the Supreme Court held that,
‘The best evidence the appellants could have had was that of the agents at the polling units who were physically on ground and in true position to testify as to what transpired at an election. The consequence of shutting them out for whatever reason is very detrimental to the appellants; case. See also Ikpeazu v Otti (2016) 8 NWLR (Pt. 1513) 38, 92 and Ucha v Elechi (2012) 13 NWLR (Pt. 1317) 330, 3359.
Furthermore, as regards the documents tendered by the PW1 who was not their maker, they are in the absence of their makers unreliable. See Buhari v Obasanjo supra. 177 and 182, Buhari v INEC (2008) 18 NWLR (Pt.1120) 246, 391-392, Belgore v Ahmed (2013) 8 NWLR (Pt. 1355) 66, 100, Nyesom v Peterside (2016) 7 NWLR (Pt.1512) 453, 522, Okereke v Umahi (2016) 11 NWLR (Pt. 1524) 483, 472 and Udom v Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179, 243 – 244.
It is not enough for a candidate to tender documents and then proceed to state what he observed from the documents as he was not present when the documents were made and cannot answer questions on the documents or the making of the documents. In Andrew v INEC (2018) NWLR (Pt. 1625) 507, 557 Okoro, JSC, stated the law as follows:
In an election matter ‘the evidence required is not one which was picked up from perusing documents made by others.
Otherwise, anyone with basic comprehensive/arithmetic skills would be able to testify anywhere in Nigeria. The requirement of the law is that a petitioner must call eye witnesses who were present when the entries in the forms were being made and can testify to how the entries in the documents were arrived at.’
The petition of the appellants was fatally starved of the oxygen of reliable witnesses and exhibits. Therefore they sought resuscitation in the evidence of RW3 – 1 who was the Electoral Officer for Katsina – Ala Local Government. Appellants’ counsel submitted that his evidence in cross-examination supported appellants’ petition. That cannot be correct. In the first place, the case of the appellants was declaratory in nature. The appellants were therefore obliged to succeed on the strength of their own case and not on the admission of their opponents or weakness of their opponents’ case. The appellants must satisfy the Court that based on their pleading and evidence they are entitled to the declaration/s sought. They can only rely on the evidence of their opponents which supports their case if and only if they have led satisfactory evidence. The evidence of their opponents cannot be resorted to as a resuscitation tool for a case that had died in their hands. SeeCPC v INEC (2011) 18 NWLR (Pt. 1279) 279, 495 and 560, Nyesom v Peterside supra. 535, Mohammed v Wammako (2018) 7 NWLR (Pt. 1619) 573, 585 ? 586 and 590 and Odusanya v Osinowo (2000) 2 NWLR (Pt. 646) 574, 581 where it was opined that, the weakness of a defendant?s case can only be considered after the plaintiff has established a prima facie case.
In any event, the evidence of RW3 – 1 offered no help to the appellants. This is because the RW3 -1 was not a Presiding Officer in any of the polling units rather he was the Electoral Officer and so he could not give direct and reliable evidence of what transpired at the polling units.
The appellants failed to offer any evidence that rebutted the presumption of regularity and correctness of the result declared by INEC. There was therefore no need to consider evidence offered or not offered by the respondents.
I therefore enter an affirmative answer to issue 2 and resolve it against the appellants.
Issue 3 – Was the tribunal right in holding that paragraphs 15, 16, 35 to 50 of the 1st and 2nd respondents’ reply did not contain extraneous matters not related to the petition?
Let me state from the outset that this issue which is issue 4 in the appellants’ brief of argument questions the ruling of the tribunal in respect of paragraphs 15, 16, 35 to 50 of the 1st and 2nd respondents’ joint reply to the petition touching on result from Achough polling unit (Code 004) not being collated by the 3rd respondent. Having upheld the finding of the tribunal that the joint reply of the 1st and 2nd respondents is incompetent, it is my view that this issue has become academic as those paragraphs of the said joint reply became non- existent. The tribunal made no finding in its judgment in respect of Achough polling unit and so it becomes unnecessary to waste precious time doing a post – mortem thereon. I shall therefore not delve into the issue.
On the whole I come to the conclusion that the appeal is devoid of merit. I accordingly dismiss it with costs of in favour of the 1st and 2nd respondents against the appellants.
JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading before now the lead Judgment of my learned brother, Ekanem, JCA, and I am in tandem with the reasoning and conclusion arrived thereat that the Appeal ought to be dismissed.
The Appellant failed to adduce admissible evidence in proof of the averments in his Petition. Thus, I agree with the finding in the lead Judgment that the Petition was “fatally starved of the oxygen of reliable witnesses and exhibits”. The Appellants could not therefore rely on any perceived weakness in the 1st Respondent’s case or on any admission(s) he might have made since the Appellants sought declarations in their Petition – Nyesom V Peterside (2016) 7 NWLR (Pt. 1512) 453, 535; & CPC V INEC (2011) 18 NWLR (Pt. 1279) 279, 495 & 560.
For the foregoing and the more eloquent reasoning in the Judgment, I also dismiss the Appeal and abide by the order of costs made therein.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read, in advance, a copy of the Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA, dismissing this appeal. I completely agree with his reasoning and conclusions, which I hereby adopt as mine.
The position of the law remains that for a plaintiff who seeks declarations from the Court to succeed, he must rely on the strength of his own case and not on the weakness of the defence, except, where evidence for the defence manifestly supports the case of the plaintiff; Ajibulu v. Ajayi (2013) LPELR-21860 (SC); Akande v. Adisa & Anor (2012) LPELR-7807(SC). As is the case in all declaratory actions, in election petitions, the burden to prove his petition lies on the petitioner.
He must succeed on the strength of his own case and not due to the weakness of the defense. Not even admissions on the part of a respondent or his failure to respond to the petition will entitle the petitioner to declaratory reliefs, except where the weakness or the defence supports his claim; Busari & Anor v. Adepoju & Ors (2015) LPELR-41704(CA); Oyetola v. Adeleke & Ors (2019) LPELR- 47529(CA). Therefore, notwithstanding the nonexistence of evidence for the 1st and 2nd Respondents, the Appellants had the primary burden to prove their case, which they failed to do.
For this reason and for the fuller reasons given by my Learned Brother, I also find this appeal unmeritorious and hereby dismiss same. I abide by the orders in the lead Judgment, including the Order as to costs.
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Appearances:
A.I. Wombo, Esq. with him, T.T. Shachia, Esq.For Appellant(s)
Innocent Daa’gba, Esq. with him, E.T. Azembe, Esq., M.T. Iorsue, Esq., Terhemen Ngbea, Esq. and S.P. Sodo, Esq. for 1st Respondent.
T.S. Shior, Esq. with him, T.T. Akuha, Esq. for 2nd respondent.
E.E. Ogbodu, Esq. for 3rd Respondent.For Respondent(s)
Appearances
A.I. Wombo, Esq. with him, T.T. Shachia, Esq.For Appellant
AND
Innocent Daa’gba, Esq. with him, E.T. Azembe, Esq., M.T. Iorsue, Esq., Terhemen Ngbea, Esq. and S.P. Sodo, Esq. for 1st Respondent.
T.S. Shior, Esq. with him, T.T. Akuha, Esq. for 2nd respondent.
E.E. Ogbodu, Esq. for 3rd Respondent.For Respondent
