CHIEF GEORGE ADEFEMI OJO & ANOR. v. FATIMAT RAJI RASAKI & ORS. (2019)

CHIEF GEORGE ADEFEMI OJO & ANOR. v. FATIMAT RAJI RASAKI & ORS.

(2019)LCN/13044(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of April, 2009

CA/IL/EP/REP/24/2008

RATIO

FUNCTUS OFFICIO: DEFINTION OF WHEN AN ELECTION TRIBUNAL IS FUNCTUS OFFICIO
The main issue is whether the lower Tribunal was functus officio.Functus officio ordinarily means task performed, having fulfilled the function, discharged the office, or accomplished the purpose and therefore of no further force of authority. See Blacks Law Dictionary 6th edition page 673.The latinism means in practice the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus the officer has no further authority of legal competence based on the original commission. This is because the things which originally had become dead or moribund after the performance of the duty or function by the authority. In our con, a judge who has decided a question brought before him is functus officio, and cannot review his decision. See also SANUSI VS. AYOOLA (1992) 9 NWLR (PT. 265) 275, ONWUCHEKWA VS. CCB (1991) 5 NWLR (PT. 603) 109,ANYAEGBUHAM VS. ATTORNEY-GENERAL OF ANAMBRA STATE (2001) 6 NWLR (PT. 110) 532, INEC VS. NNAJI (2004) 16 NWLR (PT.900) 474.PER SOTONYE DENTON WEST, J.C.A.

FUNCTUS OFFICIO: WHEN A COURT CANNOT BE SAID TO BE FUNCTUS OFFICIO

PLEADINGS: PLEADINGS CANNOT BE SAID TO BE SYNONYMOUS TO EVIDENCE

However, the law is clear and settled that pleading is not synonymous with evidence and so cannot be considered as such in the determination of the merit or otherwise of a case. A party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings, and where there is none then the averments in the pleadings are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him. See GENERAL MOHAMMED BUHARI VS. INEC & 4 ORS. SUPRA. PER SOTONYE DENTON WEST, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

CHIEF GEORGE ADEFEMI OJO & ANOR. Appellant(s)

AND

FATIMAT RAJI RASAKI & 49 ORS. Respondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): The 1st Appellant and the 2nd Respondent were contestants in the April 21st, 2007 election into the Ekiti Centre Federal Constituency 1. The Appellants were the petitioners at the National Assembly/Governorship and Legislative Houses Election Tribunal held at Ado Ekiti, where they claimed against the Respondents, the following reliefs:-
“Your Petitioners pray that it may be determined that the said Fatimat Raji Rasaki was not duly elected and that her purported election by virtue of an unlawful allocation of 33,315 votes as against that of the 1st Petitioner 18,328 was void and that the 1st Petitioner was elected and ought to have been duly returned OR in the alternative your Petitioners pray for a nullification of the election and a bye election ordered into the seat or House of Representative member for Federal Constituency 1, of Ekiti State.”
Parties filed and exchanged pleadings and the Tribunal held on 27th day of August, 2008 that; “We observed that the instant Petition is not solely based on this relief hence our decision to hear the Petition on the merit. In the circumstances therefore, we resolve this issue in favour of the Respondents and hold that this relief is incompetent.
We at this juncture return to the issue No. 1 in our evaluation of the evidence of non-compliance we did find that in some units of the Constituency the conduct of the election was not in substantial compliance with the Electoral Act.
We have taken the aspect of non-compliance into consideration in the affected units and recomputed the valid votes of the parties resulting in the 1st Petitioner having 17,951 votes and the 1st Respondent 32,008 votes. In spite of this exercise we are satisfied that the outcome of the election has not been affected, In the circumstances, we hold that the observed non-compliance with the Electoral Act, 2006, in the conduct of this Election did not substantially affect the overall outcome of the election of 21st April, 2007 to the Ekiti Central Federal Constituency 1.
Accordingly, the Petition fails and it is hereby dismissed.
We made no order as to costs.”
The Appellants were dissatisfied with the judgment of the Tribunal and filed Notice of Appeal consisting of ten (10) grounds of appeal and prayed this Court for:-
(1)An Order to set aside the decision of the Tribunal dismissing the Petition No. EKS/EPT/REP/20/07
(2)An Order declaring the 1st Petitioner as the person who scored majority of lawful votes and ought to have been returned as the winner of the election.
(3)An Order withdrawing the Certificate of return issued to the 1st Respondent.
(4)An Order directing the 2nd Respondent to issue certificate of return to the 1st Petitioner.
(5) An Order nullifying the election of the 1st Respondent and ordering a rerun of the election into the Federal Constituency.
All the parties filed their briefs of argument. The Appellant’s brief was dated 15th October, 2008 and filed same date. The 1st set of Respondents filed their Respondent Brief of Argument dated 18th day of November, 2008, the 2nd set of Respondents filed their Brief of Argument on 3rd day of December,2008.
When the appeal came up for hearing, Mr Ayodeji Odu Leading Counsel to the appellant referred the court to appellants reply brief which is undated but filled on 15th October 2008. He further referred to another brief dated 12th day of January 2009 and deemed filed on 27th January 2009 by an order of court and adopted both briefs as appellants arguments in the appeal. He prayed the court to uphold the appeal.
In like manner, Professor Osipitan (SAN), Leading Counsel to the 1st and 4th respondents also referred this court to the respondents brief dated the 18th day of November, 2008 and filed on same date. He adopted the brief as the respondents arguments in the appeal and urged the court to dismiss the appeal.
Mrs Maureen Arinze of counsel to the 2nd, 3rd, 5th -50th respondents referred the court to their brief dated the 3rd day of December,2008 and deemed filed on 27th day of January 2009 by an order of this court. He adopted the brief and urged the court to dismiss the appeal.
In the Appellant’s Brief of Argument, 12 issues were distilled for determination, these are as follows:-
1. Whether the decision of the Election Petition Tribunal sitting at Ado-Ekiti in Petition No. EKS/EPT/REP/20/07 is against the weight of evidence adduced at the trial (Ground 1 of Appeal).
2. Whether the Tribunal was not functus officio in the issue of failure of the Petitioners to state the scores of all the candidates that contested the election and whether the tribunal was right in relying on an issue it has considered and dismissed in a preliminary objection and thereafter proceeded to consider the petition on the merits in refusing to consider who had a majority of lawful votes at the election. (Grounds 2 and 11 of Appeal).
3. Whether the Tribunal’s findings that failure of the Petitioners to plead means and mode of distribution of ballot papers constitute sufficient ground for the expulsion of evidences led by the Petitioners in line with their pleadings. (Grounds 4 and 5).
4. Whether the omission of vital paragraphs of the Petitioners pleadings in the consideration of the judgment occasioned a miscarriage of justice (Ground 6).
5. Whether or not the basis of the rejection of the evidence led by the Petitioners to establish that the ballot count of the 1st and 4th Respondents did not tally with the scores recorded for the 1st and 4th Respondents in the Federal Constituency is tenable and whether the basis for the rejection of the Petitioners’ evidence can be supported in law. (Grounds 7 and 15).
6. Whether or not the failure of the tribunal to review, assess and make findings of fact in respect of the Petitioners witnesses occasioned a miscarriage of justice (Ground 8).
7. Whether the findings of the tribunal on Ward 9 of Irepodun/Ifelodun Local Government of the Federal Constituency is justified in view of available evidence before the tribunal (Grounds 9 and 10).
8. Whether tribunal was right when it held that the basis of the evidence of the expert evidence has been eroded by the singular omission of the Petitioners to plead the facts upon which such evidence could stand and whether the failure of the tribunal to review, assess and make findings of fact on the evidence of PW5occasioned a miscarriage of justice. (Grounds 13 and 14).
9. What is the effect of the failure of the tribunal to review, assess and make findings of fact in respect of the evidence of PW2 as related to EXHIBIT PW2CC and PW2GG (Grounds 16 and 17).
10. Whether the failure of the tribunal to apply its principle of addition and subtraction to units/wards where similar facts existed for the application of the principle occasioned a miscarriage of justice (Ground 18).
11. Whether the Petitioners proved substantial non-compliance sufficient to vitiate the conduct of the election. (Ground 20).
12. Who out of the Petitioners and the 1st and 4th Respondents had a majority of lawful votes (Ground 19).
The 1st and 4th Respondents formulated these issues for determination in their brief as follows:
1. Whether the tribunal below, rightly or wrongly held that the Appellant’s failure to state the scores/votes of all the candidates was fatal to the petition/reliefs that he (Appellant) be declared the winner of the Election.
2. Whether in the light of the surviving paragraphs of the Petition, the Tribunal below correctly evaluated and properly ascribed probative value to the evidence (Oral and Documentary) placed before it by the parties.
3. Whether in the light of the surviving paragraphs of the petition, the Appellants discharged the onus of proving substantial non-compliance with the provisions of Electoral Act in the conduct of the Election which was of such a nature that substantially affected the result of the Election as to justify the Appellants being declared the winner of the Election or an outright cancellation of the Election and are-run.
Counsel to the 2nd, 3rd, 5th- 50th Respondents had a sole issue for determination which is:
1. Whether the Appellants have made out a case to warrant the grant of their reliefs having regard to the pleadings and evidence that was before the lower tribunal.
The Appellants and the Respondents distilled two issues for determination at the tribunal, these are:-
1. Whether the Petitioners have by credible and reliable evidence proved substantial non-compliance with the Electoral Act that should affect the result of the election of 21st April, 2007 into the Ekiti Central Federal Constituency 1.
2. Whether the Petitioners have proved that the 1st Respondent did not score a majority of lawful votes in the election.
Witnesses were called on both sides and documents tendered.
On 13/08/07, the 1st Respondent filed a motion praying the Tribunal:
(1) To strike out and or dismiss the petition for want of competence/jurisdiction.
(2) For such further order or other orders as the court may deem fit to make in the circumstances of this case.
While the grounds of the objection are as follows:-
1. That the Petitioners failed to state the scores of the candidates at the election as required by paragraph 4(1) of the 1st Schedule of the Electoral Act 2006.
2. The Petitioners failed to comply with the mandatory provisions of the Electoral Act and Paragraph 4(1)(a)(b)(c) and (d) of the 1st Schedule to the Electoral Act.
The Respondents buttressed their position with the following authorities OYEYIPO V OYINLOYE (1987) NWLR (PT.50)285 MAGAJI V BALAT (2004) 8 NWLR (PT.876) 449 at 472, OJONG V DUKE (2003) 14 NWLR (841) 581 at 681 AND EFFIONG V IKPEME (199) 6 NWLR (PT.606) 260 but the Appellants asked the court to hear the matter on merit, he too, relied on YUSUF V OBASANJO (2003) 16 NWLR (PT.847) 523, IGE V OLUNLOYO (1984) 1 SCNLR AND OJUGBENLE V LAMIDI (1992) 10 NWLR (PT.621) 167, 171.
On 24th day of August, 2007 the lower court held as follows:-
“Without necessarily determining the objection raised with regard to the competence of Paragraph 7 of the said affidavit in support, it seems to us that the issue as to whether there were more candidates at the Election than those pleaded in the petition is a matter for the substantive trial.
….. Consequently, we exercise our discretion in saving the petition as there has been in our considered opinion sufficient enough compliance with paragraph 4(i)(c) to take matter to a trial on the merit.”
Consequent upon this ruling, the petition was served and the matter was heard on the merit by the Tribunal.
On the first issue of whether the decision of the Election Petition Tribunal sitting at Ado-Ekiti in Petition No. EKS/EPT/REP/20/07 is against the weight of evidence adduced at the trial court, the appellants’ counsel submitted that PW1-SYVESTER AIGHOWAN, Electoral Officer at Irepodun/Ifelodun Local Government and the collation officer for the local government in the National Assembly election of 21st April, 2007 was subpoenaed by the petitioners to produce documents and testify at the trial, statutory forms used during the conduct of the election and same were admitted as evidence.
Some wards and units were highlighted where the appellants alleged over voting, results declared was more than the actual votes casted, non conduct of election in some areas yet results were declared and that in some places there was no registration and the results should not have been declared at all , he further submitted that units and wards where such allegations were highlighted should be cancelled.
He further stated that Omolele Muslim PW2, Electoral Officer for Ado Local Government area and also the collation officer for the local government, was subpoenaed to produce and tender some statutory document and ballot papers used for the election ;that he too gave evidence that results at existing unit was part of the results collated and declared for the 1st respondent. He further alleges violent and disruption in some wards and gave evidence of other irregularities in other units and wards.
He stated that Hon. Femi Alfred PW3, corroborated the massive irregularities and that he was emphatic under cross-examination that Mr. Tunde Yandeka PW5 was an expert witness called by
the petitioner to analyse the materials especially ballot papers used for the challenged result and that he gave evidence of multiple thumbprint and finally submitted that the 5619 ballot papers scanned were for the respondent.
For Irepodun/Ifelodun axis of the local government area, the experts evidence and report is based on ballot papers for the 1st respondent, that 6,866 ballot papers for the 1st respondent were scanned and lot of multiple thumb printing was discovered.
Others too gave evidence of different irregularities and the Appellant tendered documents and stated that he won the election.
The appellants counsel contended that the lower tribunal discountenanced with the evidence of the witnesses of the appellants stating the following reasons for his contention on page 20 of his brief
1. Failure of the appellants to plead means and mode of distribution of ballot papers.
2. That the petitioners counsel chose to recount only the 1st and 4th respondents votes when he had applied for and the court ordered a recount of the ballot papers in the entire federal constituency when the
i. The case of the petitioners was not a means and mode of distribution of ballot papers as introduced at judgment stage by the tribunal.
ii. The evidence of PW1, 3, 4, 6, 7 and 8 were not on the distribution list but the tribunal failed to review and make findings of facts on them.
iii. PW2 who gave evidence on the distribution list only did so in respect of some units in ward 13 only at Ado Local Government.
iv. There was no where in the entire record of proceedings where the petitioners counsel applied for and was granted an order for the recount of ballot papers in the Federal Constituency.
v. The evidence on recount was on local government basis and as led by individual witnesses. Employing a common ground to discountenance the evidence led on recount by individual witnesses is injustice. Each witness evidence ought to have been assessed on its own merit.
vi. The tribunal relied on extrinsic and imaginary application and orders in discountenancing vital evidence of the petitioners.
Counsel to the 2nd, 3rd – 50th respondents in her respondent’s brief argued that the appellants did not prove his case and that all the exaggerated averments in the petition was not proved most especially criminal averments in the petition.
Counsel to 1st and 4th respondents treated this issue in his own issues 2 and 3 which he argued together where he stated that a party can not approbate and reprobate at the same time, that the appellants allegation of non- compliance, non-holding of election , that it was the appellant that scored the highest number of votes in the election and as such should be declared winner. He stated further that the claims of the appellants was at cross purpose with their evidence. He submitted further that it is either elections were held or not held.
That the prayer by the appellants that he should have been declared winner when he is claiming non-compliance is confusing. Moreover the appellants prayer that he be declared winner is an admission against interest.
Appellants counsel submitted that the production and admission of ballot papers shows that election was held.
Moreso, appellants witness PW1 and PW gave evidence as follows:-
“INEC was neutral in the conduct of the election, election were conducted in substantial compliance with the Electoral Act.
He went further to state that:
“There were no complaints from any of the units.
There were no report of any irregularity in this ward. The election was free, fair and peaceful. He cited the cases of OGUNBIYI VS. OGUNDIPE (1992) 9 NWLR (PT. 263) 24 AT 33, ADISA VS. OLATUNJI (1995) 2 NWLR (PT. 376) 162 AT 181, IBRAHIM VS. SHAGARI (1983) All NLR 526 – 527, ADEYEYE VS. AJIBOYE (1987) 3 NWLR (PT. 61) 432.
Taking the appellant’s first issue on the ground of weight of evidence adduced at the trial, I have had the opportunity of going through the record of the lower court more especially that the lower tribunal used extrinsic materials to determine the issue more especially on the ground that some evidence were not considered because of the petitioners now appellants failure to plead the means and mode of distribution of ballot papers. In respect of the first issue I wish to refer to paragraph 10(a) of PW5 statement on oath as follows:-
“Distribution list analysis, for areas where the INEC distribution list contained the serial numbers of Ballot papers as they were distributed. I analysed the serial numbers to ascertain if the ballot papers were used in the designated area for the elections as contained in the approved areas obtained from the Certified True Copies of Ballot paper distribution list from INEC. To perform this analysis, I entered into a data table which contained the name and code of each location that ballot papers were assigned to by INEC. The range of serial numbers assigned to each location was keyed in besides each location code. A range was defined by a starting serial number and a ending serial number 1. The analyed ballot paper serial number could be found in the available ranges. I then went on to determine whether the serial number was used at the location that INEC has assigned the serial number. I was able to determine this because each scanned ballot paper had purportedly been used to cast a vote for the PDP.”
The issue of distribution list is very germane to this oath and it was never pleaded, and whatever that was not pleaded notwithstanding that evidence was given on it goes to no issue.
It is clear, that from the above averment and the report of PW5, he made use of distribution list in analyzing the allocation and final distribution of ballot papers on the election date.
I agree entirely with the respondents that no pleading on mode and allocation of ballot papers to the respective units in this constituency on election day and similarly agreed with the lower tribunal that the basis of the expert evidence has been eroded by the singular omission of the appellants to plead the facts upon which such evidence could stand.
See BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) 1.
CHIME -VS- EZEA, INEC -VS-
ACTION CONGRESS (2009) NWLR (Pt. 1126) page 524.
I therefore resolve this issue against the appellants.
On the second issue of the appellants which adumbrated on whether the tribunal was functus officio on the issue of failure of appellants to state the scores of all candidates that contested the election and whether the tribunal was right in relying on an issue it has considered and dismissed in a preliminary objection and thereafter proceeded to consider the petition on the merits in refusing to consider who had a majority of lawful votes at election. He argued that the 1st and 4th respondents had in a preliminary objection dated and filed on the 13th day of August, 2007 challenged the competence of the petition and prayed for an order striking out and/or dismissing the petition, that the grounds for the petition was the failure of the appellants to state the scores of the candidates at the election as per paragraph 4(i)(c) of the 1st schedule to the Electoral Act 2006 that the appellants failed to comply with the mandatory provisions of the Electoral Act and paragraph 4(1)(a), (b), (c) of the 1st schedule to the Electoral Act. That parties joined issues on the preliminary objection and the court ruled in the appellants favour and held in a ruling delivered by Honourable Justice Esther Yoh Inuwa on the 24th day of August, 2007 thus:-
” consequently, we exercise our discretion in saving the petition as there has been in our considered opinion sufficient compliance with the provision of paragraph 4(1) (c) to take the matter to a trial on the merits.”
The appellants counsel further argued that the 1st and 4th respondents again in their final address raised this issue and that he argued that the court was functus officio on the issue. He however stated that the court treated the matter as a life issue and the tribunal held that it was not functus officio on that issue. The appellants counsel was furious that a tribunal which had heard the preliminary objection on the merit could not have in one breath saved the petition as in their opinion the appellants complied enough with paragraph 4(1)(c) of the schedule to the Electoral Act and that it is noteworthy that the respondents never appealed against the ruling and the issue should not have been revisited.
The 1st and 4th respondents counsel joined issues with the appellants on the quoted part of the ruling of lower tribunal. He stated that the tribunal only dismissed the preliminary objection and asked for more evidence to determine the objection that it was very premature and that it is only when evidence are led that the tribunal will know the number of candidates that partook in the election, he quoted the tribunal thus:-
“without necessarily determining the objection raised with regard to the competence of paragraph 7 of the said affidavit in support, it seems to us that the issue as to whether there were more candidates at the election than those pleaded in the petition is for the substantive trial (sic)”.
He further argued that it was during trial that it became evident that apart from the appellants and the 1st and 4th respondents there were other contestants, and he finally submitted that the non-stating of the scores of all the candidates in the petition, made the petition incompetent and ought to be struck out, that the lower tribunal was never functus officio on the matter, he quoted the judgment of the lower tribunal thus:-
“We find the submission of learned counsel to the petitioner strange because the ruling of this tribunal on the said preliminary objection on August 2007was to the effect that we shall hear the matter on the merit. We are therefore not able to see how this tribunal has become functus officio in determination of that issue on merit….. In the instant petition and considering the pleadings of the petitioners, it is obvious that more than two candidates contested this election but only the scores of the 1st petitioner and that of the 1st respondent were pleaded ….. the petitioner is bound to state the scores of all the candidates that contested the election and that failure to do so would render the petition incompetent. ”
He further submitted that the lower tribunal rightly held that the petition was incompetent on the ground of non-stating of the results/scores of all candidates who contested the election; more so when the votes scored by the parties was in great dispute.
He referred to the decided authorities that where votes/scores of the winner of an election is challenged and the petitioner claims that he ought to be declared the winner of the election, the petitioner must state the scores of all the candidates who contested the election otherwise the petition would be declared
incompetent. He referred to; IBRAHIM VS. INEC (1999) 8 NWLR
(PT. 614) 334 AT 351, KHALIL VS. YAR ADUA (2003) 16 NWLR
(PT. 847) 487, MOGAJI VS. BALAT (2004) 8 NWLR (PT. 876) 449
AT 473.
On the contention that the respondents should have appealed the ruling rather than raise the issue again at hearing he referred the court to the cases of AMEBARE VS. SYLVA (2007) 18 NWLR (PT. 1068) 1 AT 22; 22H – 23B, OSUNBOR VS. OSADMORE (2007) 18 NWLR (PT. 1065) 32, HASHIDU VS. GOJE (2003) 15 NWLR (PT. 843) 352 AT 382, SHANU VS. AFRIBANK NIG. PLC. (2002) 17 NWLR (PT. 795) 185 AT 222, ALOR VS. NGEGNE (2007) 17 NWLR (PT.1062) 163 AT 177.
He further submitted even after judgment, interlocutory decisions can be revisited by the court or tribunal, he referred the court to the cases of BOZSON VS. ACTIACHAM URBAN DISTRICT COUNCIL (1903) 1KB, 547, AFUWAPE VS. SHODIPE (1957) NSCC VOL. 1, 52 AT 54 LINES 9 -10.
The appellants later filed appellants reply brief vide a motion for extension of time to file same which was granted on 27/01/09, in it he submitted that issues raised for determination in the 1st – 4th respondents brief has no correlation to the grounds of appeal but merely misrepresented facts as they occurred at the lower tribunal, he stated that the issues raised by the respondents is a technical call on the appellate court to affirm the judgment of the tribunal on other grounds when there is no cross-appeal or respondents notice that judgment of the lower tribunal be affirmed on other grounds, he referred this court to the cases of SHITTU VS. FASHAWE (2004) 14 NWLR (PT. 946) 671 AT 687, ADEJUEBE VS. OLOGUNJA (2004) 6 NWLR (PT.868) 46 (2004) VOL. 8 MJSE 37. IBRAHIM VS. OJOMO (2004) 4 (NWLR)(PT. 862) 89, ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (PT. 161) 130 and SANUSI VS. AYOOLA (1992)9 NWLR (PT. 265) 275. IGAGO V STATE (1999) 14 NWLR (PT 637)1.and PROFESSOR OSUNBOR V COMRADE ADAMS OSHIOMOLE AND ORS CA/B/EPT/91/2008 pages 42-43.
He finally submitted in his reply that the respondents was re-arguing the preliminary objection raised before the tribunal all over again.
Now, I do not think that the respondents re-argued the preliminary objection raised at the lower tribunal but it is a simple reply to issue 2 of the appellant when the appellants raised and argued issue of functus officio of the tribunal to give a decision in their own judgment when they initially gave a ruling. The reply failed and on the ground that the issues formulated and submitted by the respondents do not seem to emanate from the grounds of appeal filed against the judgment of the Court of Appeal by the appellants. Again I disagree, as Ground 2 of the notice of appeal dated 16th day of September, 2008 and filed 27/09/08 absolutely took care of issue two of the respondents and it is in reply to the argument of the appellants in their brief.
Now to deal with issue two of the appellants which is issue 1 of the respondents. I will quote paragraph 4(1) of the Electoral Act
contents of an Election Petition.
(1) An election petition under this Act shall:
(a) Specify the parties interested in the election petition.
(b) Specify the right of the petitioner to present the election petition.
(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election and
(d) State clearly the facts of the election petition and ground or grounds on which the petition is based and the relief sought by the petition.
The 1st or 4th respondent raised this issue before hearing commenced at the lower tribunal via their preliminary objection that the petition was incompetent but same was saved by the lower tribunal that it is only during trial that they will determine the number of candidates that participated in the election that is being contested, see page 630 of the record where the court held thus:-
“Without necessarily determining the objection raised with regard to the competence of paragraph 7 of the said affidavit in support, it seems to us that the issue as to whether there were more candidates at the election than those pleaded in the petition is a matter for the substantive trial.”
See the cases of AJUDUA VS. NWOGU (NO.1) (2004) 16 NWLR (PT. 898) pages 56 at 72 – 73 wherein IKONGBEA JCA. (of blessed memory) noted that some matters are best left till hearing. It was held that:-
“One such matter, as in the present case is the question whether or not all the candidates necessary to be pleaded under paragraph 4(1)(a) were pleaded. Such question as learned Justices of Supreme Court pointed out, is better resolved upon admissible evidence at the trial of the petition at which stage the tribunal would decide the competency of the petition; if that still remained an issue. For the reasons that I have given. I must resolve this issue relating to paragraph 4(1)(c) in favour of the appellant. She stated the names and scores of the only two candidates she did this in paragraph 18 of her petition. This was compliance, sufficient to take the matter to trial. If thereafter respondents produce evidence that other candidates did contest the election, then they are at liberty to call on the tribunal to rule accordingly.”
I should think this was why the petition was heard on the merit to determine the number of candidates that participated in the election. Page 697 of the record of proceeding shows that a minimum of five other contestants participated in the disputed election; these are:-
UNIT 023
AC    – 42
ANPP –   09
PDP   – 86
NCP   –  01
RPN   –  02
UNPP  –    01
The above result shows that the candidates that participated in the election are more than two as stipulated in the petition of the appellants contrary to the provisions of paragraph 4(1)(c) of the schedule to the Electoral Act, 2006
The main issue is whether the lower Tribunal was functus officio. Functus officio ordinarily means task performed, having fulfilled the function, discharged the office, or accomplished the purpose and therefore of no further force of authority. See Blacks Law Dictionary 6th edition page 673.The latinism means in practice the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus the officer has no further authority of legal competence based on the original commission. This is because the things which originally had become dead or moribund after the performance of the duty or function by the authority. In our con, a judge who has decided a question brought before him is functus officio, and cannot review his decision. See also SANUSI VS. AYOOLA (1992) 9 NWLR (PT. 265) 275, ONWUCHEKWA VS. CCB (1991) 5 NWLR (PT. 603) 109,ANYAEGBUHAM VS. ATTORNEY-GENERAL OF ANAMBRA STATE (2001) 6 NWLR (PT. 110) 532, INEC VS. NNAJI (2004) 16 NWLR (PT.900) 474.

Judicial approach had been explicit in its definition of the words funtus officio because it is a jargon or terminology that occurs all the time after judicial decision or pronouncement. Therefore a court cannot be functus officio if it gives an anticipatory order, which is conditional to the possible complement of the order or otherwise as in this case. This is because at the point of fulfillment, the party involved in the anticipatory order which is conditional to the possible implementation of the order or otherwise as in this case. This is because at the point of fufilment, the party involved in the anticipatory order will return for a permanent relief. An order of a court made subject to the happening of an event is not given in total or whole and therefore cannot make the court functus officio. After all the Latinism of functus officio applies when the whole matter is resolved or dealt with by the court. An order of the court made subject to the happening of an event is not one given in total or whole and therefore cannot make the court functus officio.
In GENERAL MUHAMMED BUHARI VS. INEC & 4 ORS. (2008) 12 SC 1 at 101-102.Wherein Niki Tobi said:
“…. the latinism offunctus officio applies when the whole matter is resolved or dealt with by the court. It will not apply where only a part of it is resolved or dealt with and a part of it hanging. That part which was hanging in this case was the order subject to the right of the opposing parties. The tribunal has to remove the hanger and he is not functus officio to do so. That was what the tribunal did and it is right in doing that. The appellant is wrong in castigating them for doing the right thing The following cases are germane to the principle stated above and I agree with the court ; see UBN VS. SPARKLING BREWRIES LTD. (2000) 15 NWLR (PT. 689), KABO AIR VS. INCO LTD. (2003) 6 NWLR 9 PT. 816) 323, AGBI VS. OGBE (2006) 11 NWLR (PT. 990) 65 and DAGACI OF DERE VS. DAGACI OF EBWA (2006) 7 NWLR (PT. 979) 382. I am therefore in grave difficulty to agree with the submission of the appellants that the court was functus officio in determining an issue raised vide a preliminary objection decided and in the final decision decided again more so when all the tribunal did was to be fair to all parties.”
It is for this reason I am obliged and agree with the submissions of learned counsel to the Respondent Professor Osipitan (SAN) when he referred and relied upon the cases of KHALIL VS. YAR’ADUA (2003) 16 NWLR (PT. 847) 487, and BUHARI VS. DIKKO (2003) 14 NWLR (PT.841) 446 wherein it was held thus:
“From the above decision of the learned Justices of the Supreme Court it is mandatory for the petitioner to state in his petition the holding of the election, the scores of the candidates, including the candidates who lost the election and the person returned as the winner of the election. In other words while there is no obligation on the petitioner
to join any candidate who lost an election, the
petitioner has a duty to comply with the provisions of paragraph 4(1)(c) of the first schedule to the Electoral Act 2002 by stating among other particulars, the scores of all candidates that participated in the election. I agree with the respondents and the judgment of the lower court in striking out the petition as been defective.”
Consequently I agree that the matter was not functus officio since the issue of scores of candidates in the election was vital. therefore resolve this issue against the appellants.
See DPP -VS- INEC (2009) 4 NWLR PART 1130 PAGE 92, APGA -VS- OHAKIM (2009) 4 NWLR PART 1130 PAGE 116, DANTIYE -VS- KANYA (2009) 4 NWLR PART 1130 PAGE 13.
I now take issue 3, which is on whether the tribunal’s findings that failure of the petitioners to plead means and mode of distribution of ballot papers constitute sufficient ground for the expulsion of evidence led by the petitioners in line with their pleadings. Learned counsel to the appellants submitted that it is not the function of the court to make out a case for a party different from the case put before it by the party. This issue can best be described as been vague as it is not tied to any part of the judgment of the tribunal and neither did the learned counsel put this court in to consideration in his submission. However, the law is clear and settled that pleading is not synonymous with evidence and so cannot be considered as such in the determination of the merit or otherwise of a case. A party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings, and where there is none then the averments in the pleadings are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him. See GENERAL MOHAMMED BUHARI VS. INEC & 4 ORS. SUPRA
Again I Proceed to issue 4 on whether the omission of vital paragraphs of the petitioners pleading in the consideration of the judgment occasioned a miscarriage of justice. Ayodeji Olurotimi Odu Esq submitted that the tribunal embarked on selective treatment of selected paragraphs in the Appellants pleading he went further that the tribunal omitted paragraphs 1, 4, 7, 8, 10, 11, 13, 15 and 18 of the petitioners pleadings and that this paragraphs clearly brought out the evidence of appellants, he stated further that a court should not embark on selected reading of paragraph of pleadings of a party. He referred the court to the cases of NGIGE VS. OBI (2006) All FWLR (PT. 330) 1041 AT 1121 and OKOCHI VS. ANIMKAWO (2003) SCNJ 260 AT 272. He concluded his argument on that issue by submitting that the omission of these vital paragraphs from the consideration of the petitioners pleading occasioned a miscarriage of justice in the consideration of the appellants’ case.
Learned Senior Advocate for the 1st and 4th respondents submitted that evidence adduced in support of abandoned paragraph of a pleading will go to no issue he further stated that the appellant relied on the doctrine of severance of pleading and specifically abandon some of the averment in the petition, he referred to the appellants’ reply address dated 11/7/08 in which the appellants’ counsel conceded that no evidence was adduced and therefore there was no admissible evidence to support allegation of violence and multiple thumb printing during the election and this left the appellants to the issue of whether the 1st respondent was duly elected by majority of lawful votes cast at the election and referred this court to page 677 of the Record of Appeal, he went further and quoted thus:-
“We wish to note at this juncture that the petitioners at page 46 paragraph 28.4 of their written address abandoned their allegation of violence and multiple thumb printing as according to learned counsel, no evidence was led in proof. This aspect of the petition is hereby struck out.”
And that the appellants never appealed against it. He submitted further that immediately the appellants abandoned his allegation of multiple voting, the order given to the forensic expert to inspect ballot papers became spent. he referred the court to the case of CHIEF OJUKWU VS. CHIEF OBASANJO & ORS. EPN VOL. 1,626 AT 652 PARA F – G.
The appellants in their reply urged the court to discountenanced the submission of the appellants but I will not do that as I will like to reach a point on it.
In considering this issue I, I will like to repeat some paragraphs in the petitioners address and reply to respondents address.
The paragraphs read thus:
“Paragraph 28.3. we refer to sections 124 – 139 of the Election (sic) Act 2006 where electoral offences are well stated, none of our allegation falls within the definition or classification of electoral offences.
28.4 We therefore submit that by our petition, we could severe and/or abandon our pleadings and limits our grounds to the issue that the 1st respondent was not duly elected by majority lawful votes cast at this election as a result of the irregularities or stuffing of ballot papers or irregular papers are not meant for by the distribution list.” There was no evidence led on violence, multiple thumb printing and they are deemed abandoned.
28.5 In the case of DUROSARO VS. AYOFINDE (2005) 8 NWLR (PT. 927) 407 AT 428, the Supreme Court per Edozie JCA. Had this to say:-
“Indeed the averments in the plaintiff’s/respondent’s pleading relating to exhibit F constitutes what is often referred to as over pleading and under the rules of pleadings.A pleader who has pleaded more than he strictly needed to have done can disregard the surplus averments and rely on the relevant and more limited ones, see NWANKWE VS. ADEWUNMI (1967) NMCR 45.”
The above to my mind indicate that the appellants at the lower court abandoned some of their pleadings because they never led evidence on it and that is where the issue of abandonment came in. It should similarly be noted that it is not only the petitioners paragraphs that were not considered because it was abandoned, the 1st and 4th respondents paragraphs 1, 2, 5, 6, 11, 12, 13, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30 and 31 were also not highlighted in the judgment as all the pleadings can not be in the judgment.”
The court is in attunement with the respondents counsel that the appellants cannot blow hot and cold at the same time and neither can he approbate and reprobate at the same time. I am also in tandem with the respondents that the appellants having abandoned some paragraphs of the petition as a result of which the tribunal struck out the part of the petition on election malpractices of multiple thumb printing and violence, he is estopped from insisting that the tribunal should have considered the whole petition regardless of his abandonment of some issues/paragraphs of the petition. Though a forensic expert was brought in to perform forensic analysis of some ballot papers on the ground of multiple thumb printing, immediately the appellants abandoned the pleading relating to multiple thumb printing, the order became spent as you cannot put something on nothing. It surely will fall. See NIKI TOBI, JSC in GENERAL MUHAMMED BUHARI VS. INEC & ORS. supra.
I am aware and it is a matter of trite law, that parties are bound strictly by their pleadings and are not allowed to depart from their pleadings, hence parties can then lead evidence in support of their pleadings. Evidence led which is not supported by the pleadings goes to no issue, such evidence if indirectly admitted will be expunged. See ITO VS. EKPE (2000) 3 NWLR (PT. 650) 678 AT 693 – 694. In AWUSE VS. ODILI (2005) 16 NWLR (PT. 952) 416 AT 504 PARAGRAPH H – B, the court held that:-
“It follows therefore, that the two most significant aspect of a claim are pleadings and the evidence to the proof thereof where evidence is not aligned with pleadings, it would serve no useful purpose to the claimant. The ultimate resultant effect would give rise to the pleading being abandoned on the one hand while also expunging the unsupported evidence on the other hand which cannot stand without a fundamental base. The authority is supported by the case of BALOGUN VS. AMOBIKAHAN (1985) 3 NWLR (PT. 11) 27 also the case of CBN VS. JIDDA (2001) 5 NWLR (PT. 705) 165 AT 176.”
Without saying more if we should all learn how to take our fault without blaming another it would be good for all and we should avoid shifting unnecessary fault, all the lower tribunal did in respect of the abandoned paragraphs are in order and I resolve this issue against the appellants.
Issue 5 deals with the poser of whether or not the basis of the rejection of the evidence led by the petitioners to establish that ballot count of the 1st and 4th respondents did not tally with the scores recorded for the 1st and 4th respondents in the Federal Constituency is tenable. Learned counsel to the appellants submitted that the court never gave an order for recounting of used ballot papers for all the parties in the constituency and that the petitioners never applied for and the tribunal never granted an order for a recount of the votes of all the parties. Learned counsel to the 1st and 4th respondents submitted that the tribunal rightly refused to act on the result of the physical recount because the result will be unhelpful as only the ballot paper in respect of the 1st respondent that was recounted and that there is no where on record where the court ordered that appellants should physically count the ballot papers of the 1st respondent. Moreso PW2 testified that the ballot papers were tampered with and he quoted the witness thus:-
“After the election, we recorded the score of each party after forensic examination when
I was counting the ballot papers, I discovered that the scores at the parties were changed e.g. no party scored 5 votes as recorded after the election but after forensic examination when I was counting I discovered that score 5 was recorded. No party which had candidate scored as low as 5 votes, this is how I know that the figures were tampered with. ”
(underline mine)
I will like to come in at this stage that aspersion should not be cast on Judges more so when they have done nothing wrong as in this case. Moreover no court would have relied on such result when a witness gave evidence under cross-examination that the ballot papers were tampered with by the appellants and this was never rebutted in any way or manner.
Rather than state that the tribunal based its judgment on its imaginary applications and orders. It is the appellants that is confused and this court will not allow itself to be confused, i.e. when was the order for the recount sought? when was it granted and were all the parties present during the recount? There was indeed no malpractice and non compliance with the Electoral Act by the Respondents as alleged by the Appellants. See NNACHI -VS- IBOM (2004) 16 NWLR (PT 900) 614; WALI VS BAFAWARA (2004) 16 NWLR (PT. 898) 1; HARUNA -VS MODIBBO (2004) 16 NWLR (PT. 900) 487. I therefore with greatest humility I resolve this issue against the appellants as no miscarriage of justice was occasioned by not considering it.
There seems to be a proliferation of issues for determination in this appeal which in fact and in law is not necessary. See- IRONBAR -VS- C. R. B. R. D. A. (2004) 2 NWLR (PT. 857) PAGE 411. However I shall continue to treat all issues as raised and adopted by the court for determination Coming to issue 6, it would be taken together with issues 7, 9 and 10, these issues deal with failure of the tribunal to review, assess and make finding in respect of petitioners witness and whether the tribunal finding on ward 9 of Irepodun/Ifelodun Local Government is justified based on the available evidence and the effect of the tribunal’s failure to assess the appellant evidence in respect of PW2 as related to Exhibit PW2cc and PWGG. The appellants’ learned counsel submitted on the whole, that the tribunal failed to review, assess and make findings on an evidence of PW1 -PW 8 that all the evidence has got nothing to do with distribution list, and that all the evidence of the petitioner was ignored in one sentence. “Failure to plead means and mode of movement of ballot papers on election day.” When this witnesses gave evidence that there was no election in unit 1 and 7. Counsel did not refer this court to any statutory authority.
learned silk to the 1st and 4th respondents submitted that the witnesses and documentary evidence of the appellants were assessed but that appellants witnesses gave evidence and stated that election materials were not distributed in accordance with the INEC manual and other relevant guidelines and regulations governing the distribution of election materials, he further submitted that the respondents alleged that irregular mode of distribution of materials substantially affected the result of the election, that is ballot paper meant for a particular location was found in another area.
In my readings though very carefully done I did not see anywhere in the appellants’ petition where any material fact on irregularity in the distribution of election materials was pleaded, similarly distribution list and manuals were not stated as part of documents which the petitioner intended to rely upon, in essence we are back to the issue of whether any paragraph of the petition of the appellant mentioned anything on means and mode of distribution of election materials.
In HASHIDU VS. GOJE (2003) 15 NWLR (PT. 843) AT 382- 3830 – A, the court held that:-
“Even if the applicant had pleaded the materials for distribution of materials in the petition respectively this will not make the material admission for all purpose. A document tendered, can only be admitted for the purpose for which it has been tendered. A document cannot be tendered at large. ”
A similar decision too was reached in OWENA BANK PLC. VS. OBC LTD. (2005) 8 NWLR (PT. 928) 547 AT 585.
” The appellants must still lead evidence on the part of the manual which there was no substantial non-compliance substantially affected. The result of the election.” See also AGBAJE VS. FASHOLA (2008) 6 NWLR (PT. 1082) 30 AT 37 and NWOBODO VS. ONOH (1984) 1 SC.
It can be observed that the lower tribunal added and subtracted some votes before giving the final result, I can say it without mincing words, that the new result from the review, assessments and findings from the appellants witnesses and document that are valid, therefore the appellants could not have suffered any miscarriage of justice, as they tendered what the Tribunal relied upon.
Finally, I resolve issues 6, 7, 9 and 10 against the appellants. Coming back to issue 8, it was well taken care of in issue III. In Issue II, the appellants wanted to know whether the appellants proved substantial non-compliance sufficient to vitiate the conduct of the election, he submitted that from the available evidence in the federal constituency, the petitioners have been able to prove substantial non-compliance to vitiate the conduct of the election, he stated further that he was able to establish over-voting, stuffing of ballot boxes, allocation of votes, result of 1st respondent exceeded accredited and issued ballot papers, Non compliance/irregularities, illegal movement of ballot papers across unit, use of relatives of 4th respondent as presiding officer, non correlation of figures of fact, production of results where there was no election and/or collation and collation of result at unauthorized centers, he referred the court to the cases of BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) 1, AWOLOWO VS. SHAGARI (1979) 6 – 9 SC 51, IBRAHIM VS. SHAGARI (1983) 2 SCNCR 176 and SWEM VS. DZUNGWE 1966 1 SC – NLR ,AKINFOSILE V IJOSE (1960) SCNLR here the learned counsel to the 1st – 4th respondents linked the non -compliance with INEC MANUAL. I think he missed the point. The issue of non-compliance is enshrined in section 146(1) of the Electoral Act 2006 which provide thus:-
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
The above provisions of the Act is in pari-material with the provisions of section 131(1) of Electoral Act 2002. In line with the authority of BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) 1 which to apposite with the issue in this case, it is manifest that an election by virtue of section (146) 1 of the Act shall not be invalidated by mere reason that it was not conducted substantially in accordance with the act, it must be shown clearly by evidence that the non substantially has affected the result of the election. Election and its victory, is like a soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figure, i.e. votes that the compliance attracted or omitted.

The elementary evidential burden of the person asserting must prove, has not been derogated from the section 146(i). The petitioners must not only assert but must satisfy the court that the non-compliance has so affected the election result to justify a nullification. See AWOLOWO VS. SHAGARI (1979) All NLR 120 and MUHAMMED BUHARI VS. CHIEF OLUSEGUN OBASANJO supra, the question now is was the election conducted in substantial compliance with the Electoral Act, See BUHARI V INEC supra. Before I answer this issue will like to refer to the judgment of the tribunal.
“We have taken the aspect of non-compliance into consideration in the affected units and recomputed the valid votes of the parties resulting in the 1st petitioner having 17,951 votes and the 1st respondent 32,008 votes. Inspite of this exercise we are satisfied that the outcome of the election has not been affected ….. in the circumstances, we hold that the observed non-compliance with the Electoral Act 2006, in the conduct of this election did not affect the over all outcome of the election of 21st April, 2007, to the Ekiti Central Federal Constituency.”
Therefore I am positive in line with the tribunal that the election had substantial compliance and I so resolve this issue against the appellants.
Now to issue 12 on who out of the petitioners and the 1st and 4th respondent had a majority of lawful votes. This issue is very apt. The appellants submitted that they have proved that the 33,315 votes by which the 1st respondent was declared as winner were mere allocation and a figment of the imagination of the 2nd respondent and he referred to the case of OMOBORIOWO VS. AJASIN (1984) 1 SCNLR 1080, 123, TERAB V LAWAN (1992) 8 NWLR (PT 231) 569, MHYA V MSHELIZA (2004) 19 WRN 128 AT 146, AIKI V IDOWU (2006) 14 NWLR (Pt.984) 47 at 65 stating the issues and factors to be considered and came to the conclusion that the appellants had the highest number of lawful votes. He cited NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 1 AT 233 where the court held that:-
“In election petition cases the decision of the court particularly when issue is as to who had majority of lawful votes, is based largely on documentary evidence, mainly election result forms. So the question of the appraisal of oral evidence and demeanors of witness is not that much in issue.”
He finally submitted that from his own calculation, the respondent had 6,051 votes and the appellants 18,107 votes. It is on record that what was declared for the 1st and 4th respondents by the 2nd respondent is 33,315 votes and 18,328 votes.
Over voting ,stuffing of ballot boxes, allocation of votes, irregularities, and any other vices at election that constitute non-compliance with the provisions of the Electoral Act if proved will invalidate an election. However, the law is clear that non-observance of the rule or principles stated under the Act such as that of section 45(2) must be such that would amount to conducting an election in a manner contrary to the principle of an election by ballot and must be so grave as to satisfy the court that it did affect the result of the election .see BUHARI V OBASANJO SUPRA, SORUNKE V ODEBUNMI (1960) SCNLR 414.
The appellants herein clearly failed to place facts to establish how the non-compliance substantially affected the result of the election.
Following the above, the law as it stands requires the petitioner after establishing the substantial non- compliance occasioned by breach of the electoral act to go ahead and prove that the non-compliance affected the result of the election. It is clear from the decided authorities that before a petition can succeed on ground of non-compliance with the provisions of the electoral act, the petitioner must prove not only that there was non-compliance with the electoral act but that the non-compliance substantially affected the result of the election. See KATSINA ALU JSC IN BUHARI V INEC SUPRA, When he said:
‘However, the court after reviewing all evidence before the court came to the conclusion that the appellant had 17,951 votes and the respondent 32,008 votes. The calculation of the lower court to me is well calculated based on available documents and evidence. I therefore hold that the respondents have the highest number of lawful votes. Thus the issue is resolved in favour of the respondents. Based on the above findings in this appeal I hold that it failed, and it is dismissed.’ Accordingly in view of the foregoing and indeed the overwhelming votes in favour of the 1st RESPONDENT, FATIMAT RAJI RASKI is the winner of the election and the representative of Ekiti Federal Constituency.
The appeal lacks merit and is hereby dismissed. I therefore declare the 1st Respondent, FATIMAT RAJI RASAKI as the duly elected representative member for the Federal House representing Federal constituency 1, of Ekiti State. Costs of thirty thousand Naira is hereby awarded to the 1st and 2nd Respondents jointly against the Appellants jointly.

JUMMAI HANNATU SANKEY, J.C.A.: I agree.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

Appearances

Ayodeji Odu with him is J. O. Alabi R. O. Balogun, R. M. Akande (Mrs) and M, A. Hassan (Mrs)For Appellant

AND

Prof. Taiwo Osipitan (SAN) with him are T. A. Ojedokun, W. Oduwole,
Mrs. Maureen ArinzeFor Respondent