ZAKAWANU GARUBA v. PRINCE HASSAN KADIRI & ORS
(2019)LCN/13162(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of April, 2009
CA/B/EPT/265/2008(Consolidated)
RATIO
CRIMINAL LAW AND PROCEDURE: BURDEN OF PROOF IN CRIMINAL CASES
These being allegations of Crime, are by law required to be proved beyond reasonable doubt. See ONOH V. NWOBODO (1984) ALL NLR Page 1 – 104 KALGO V. KALGO (1999) 6 NWLR PT. 608 639 at 646; BUHARI V. INEC (2008) 4 NWLR (PT.1078) 546 at 664 where the Principle of proof beyond reasonable doubt in the allegations of Crime in the Evidence Act was emphasized as a decideratum. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
JUSTICES
SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
ZAKAWANU GARUBA Appellant(s)
AND
1. PRINCE HASSAN KADIRI
2. ACTION CONGRESS (AC)
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. RESIDENTIAL ELECTORAL COMMISSIONER, EDO STATE
6. ELECTORAL OFFICER (INEC) ETSAKO-WEST LOCAL GOVERNMENT AREA Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Leading Judgment):The Appellant in appeal NO.CA/B/EPT/265/2008 Zakawani Garuba, was the Candidate of the 3rd Respondent, the Peoples Democratic Party (PDP), at the Election of 14th April 2007 into the Edo State House of Assembly for Etsako West Constituency conducted by the 1st – 4th Respondents. 5th and 6th Respondents were officials of the 4th Respondent. 1st Respondent contested the same election on the platform of the 2nd Respondent, Action Congress (A.C.).
At the conclusion of that Election, 4th – 6th Respondents declared the Appellant as duly elected and returned him. Aggrieved by the declaration and return, 1st & 2nd Respondents commenced proceedings by way of an election petition against the 1st & 2nd Respondents now Appellants and 3rd – 6th Respondents and crystallized their claims in paragraph 79 of their petition in the following terms:
“79 …
(i) An order invalidating the 11, 414 votes or such part of the Votes scored or a/located to the 1st and 2nd Respondents by the 3rd, 4th and 5th Respondents as may be found to be in valid in Auchi III Ward 4, Unit 004, Jagbe Ward 6 Units 001, 002,003, 004, 005. 006 and 007, Aviele Ward 7 Units 003, 005, 007, 011, 013, 014, 015 and 017. Anwain Ward 8 Units 001, 002, 003, 004, 005, 006, 007, 008 and 009 in Etsako West Constituency 1 Election held all the 14/4/07 on the ground of corrupt practices or non – compliance with provisions of the Electoral Act 2006.
(ii) All order declaring the Petitioners as validly elected or returned as the winners of the Etsako West Constituency 1 of Edo State House of Assembly Election held on 14/4/07 having scored the highest number of lawful votes of the total valid votes Cast in the said election after removing the invalid votes allegedly scored or allocated to the 1st and 2nd Respondents.”
The grounds for the petition as pleaded in paragraph 78 (a) and (b) of the petition in summary were that the election in the wards and polling units mentioned in paragraph 79 (1) above was invalid by reason of corrupt practices or non – compliance with provisions of the Electoral Act, 2006 and that the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast at the Election.
The Respondents in the said petition joined issues with the petitioner by their various replies thereto, denying all the petitioner’s allegations of corrupt practices, electoral malpractice and sundry offences under the Electoral Act.
After all preliminary proceedings at the pretrial level and sessions, three issues were identified as arising from the pleadings for determination namely:
(1) Whether the election held on 14/4/07 into the Edo State House of Assembly in Etsako West Constituency was conducted in substantial compliance with the Electoral Act, 2006.
(2) Whether the Petitioner established that any of the 11, 414 votes scored by the 1stRespondent was invalid and if so, whether such invalid votes were deducted from the total votes scored by the 1st Respondent (Appellant herein) would have left the petitioner (1st Respondent herein) with majority of lawful votes cast at the Election.
(3) Whether the allegations of corrupt practices, electoral malpractices and sundry offences were proved as required by law.
The Petition proceeded to trial at the end of which the lower tribunal, in a Considered Judgment, resolved issues Nos. 1 and 2 set out above in favour of the Petitioners against the Respondents in the Petition. However, the lower tribunal resolved issue NO.3 against the Petitioner in favour of the Respondents.
It then held that the Petition had succeeded and proceeded to make the following orders:
1. “The Election and Return of the 1st Respondent – Hon. Zakawanu Garuba as member representing Etsako West Constituency I in the Edo state House of Assembly on the 14th of April, 2007 is hereby nullified.
2. The Certificate of Return issued to the said 1st Respondent is hereby cancelled.
3. The 1st Petitioner, Prince Hassan Kadiri having Scored majority of the lawful votes cast at the said election is hereby declared elected as member to represent Etsako West Constituency I in Edo State House of Assembly.
4. The 3rd Respondent, INEC is hereby ordered to issue a Certificate of Return forth with to the 1st Petitioner, Prince Hassan Kadiri; and
5. We make no order as to costs” (Sec Page 1749 of Vol. 2 of Record of appeal).
Aggrieved by the foregoing decision of the lower tribunal, the Appellant who as stated earlier was the 1st Respondent in the Petition filed an appeal (in appeal NO.CA/B/EPT/265/2008 challenging the decision on 18 grounds.
The 2nd Respondent in the Petition (PDP) also filed an appeal (in appeal No. CA/B/EPT/267 challenging the decision in an original 35 grounds of appeal (Sec Pages 1777 – 1802 of the record of appeal) which it later compressed to 33 grounds by an amended grounds of appeal.
In appeal No.CA/B/EPT/266/2008, 4th – 6th Respondents (INEC) Challenged the same decision on Seven grounds (Sec Pages 1751 – 1759 of the Record of Appeal).
Curiously the 1st and 2nd Respondents filed a Cross appeal in appeal No. CA/B/EPT/265 Challenging the same decision on two grounds (Sec pages 1803 – 1805).
All the appeals of the various Appellants as stated above as well as the Cross appeal were Consolidated and heard together by this Court.
Each of the Appellants and the Cross Appellants filed briefs of arguments. The various Respondents also filed their reply briefs. The Appellant in appeal NO.CA/B/EPT/265/2008 formulated Six issues for determination in that appeal as follows:
(1) Whether the way and manner the trial Tribunal at the stage of the evaluation of the testimonies of witnesses for the Petitioner, was even handed by believing those witnesses before it considered and evaluated, the testimonies of the witnesses for Appellant and the other Respondents at the trial in clear violation of their right to fair hearing.
(2) Whether the trial tribunal was right and justified in its failure to give proper considerations to the votes of the Petitioners challenged by the appellant on the ground that to do so would run contrary to the provisions of Paragraphs 12 (2), and 15 of the 1st schedule to the Electoral Act 2006.
(3) Whether the trial tribunal was not wrong in its reliance on the decision in TERAS VS. LAWAN (1992) 3 NWLR (PT.231) 519, when the facts and circumstances of that case was totally different from that of the present case and whether the decision permitted the tribunal to conduct private investigation on the documents tendered, unaided by testimony thereon.
(4) Whether the tribunal was right in holding that collating officers had the power to exclude and or invalidate already declared results in units 1 & 3 of Ward 4 contrary to the provisions of Section 69 of the Electoral Act, 2006.
(5) Whether the tribunal was not totally wrong in nullifying 6299 valid votes of the Appellant in Unit 6 and Ward 5, Unit 6, Ward 6, Units 3, 5, 7, 11, 13, 14 and 17 Ward 7, Units 2, and 5, Ward 8 and Unit 4 Ward 6 on the grounds of alleged over voting and multiple accreditation when these were not grounds canvassed by the Petitioners at the trial and the grounds are not backed by Law.
(6) Whether the trial tribunal was right in holding that the Petitioners made out a Case of non compliance with the Provisions of the Electoral Act having found correctly that they failed to discharge the burden (if proof of the allegation of Commission of Crime upon which the petition was erected and when it granted relief never claimed by the Petitioner.
The 1stRespondent in that appeal also formulated Six Issues:
l. Whether the tribunal was right in the way and manner it reviewed the testimonies of the parties.
2. Whether the tribunal was right when it held that Paragraphs 12 and 15 of the 1st Schedule to the Electoral Act, 2006 is applicable to the facts of this Petition and what is the effect of non Compliance with the said mandatory requirement by the Appellant.
3. Considering the overwhelming documentary evidence before the tribunal, coupled with the oral evidence adduced, whether the tribunal was not in order to have relied on same to arrive at its Conclusions and Judgment.
4. Whether the tribunal was right in rejecting the Unit results (i e form EC8A (i) from Ward 4 Units 1 and 3, Ward 8 Units 1, 8, and 9 tendered by the Appellant in respect of Auchi and Anwain in his defence and whether the rejection did occasion a miscarriage of justice.
5. Whether the tribunal was right to have ordered a nullification of the Votes Cast for the Parties in Ward 5 Unit 6, Ward 6, Units 4 and 6, Ward 7 Units 3, 5, 7, 11, 13, 14, 15 and 17 and Ward 8 Units 2 and 5 and whether there were valid grounds for the tribunal to have deducted the scores recorded for the parties thereat.
6. Whether from the totality of the evidence led before it, the tribunal was right in holding that the 1st and 2nd Respondent proved that there was substantial non compliance with the Electoral Act, 2006 as to warrant the nullification of the Appellant’s election and return.
The Second Respondent in the main appeal did not formulate any issue, but decided to meet the appellant on the issues formulated by him.
In respect of appeal No.CA/B/EPT/266/08, the Appellants (namely INEC, Resident Electoral Commissioner Edo State, and Electoral Officer Etsako L.G.A.) formulated Six issues for determination:
1. Whether the tribunal was right when, in spite of its own finding that the Petitioners did not prove the Criminal allegations in the petition beyond reasonable doubt, it proceeded to nullify the election and return of the 3rd Respondent. (Ground 4)
2. Whether, given the Provisions of Sections 145 and 147 (2) of the Electoral Act, 2007, the Tribunal was right in returning the 1st Petitioner as winner of the election, alleged by the Petitioners themselves to be marred by corrupt practices and non – Compliance with the provisions of the Electoral Act 2006. (Ground 3)
3. Whether the tribunal, after finding that the Election into the Edo State House of Assembly in Etsako West Constituency I was marred by several instances of non – Compliance with the Eleetoral Act, 2006, was right to hold that “the 1st Petitioner, Prince Hassan Kadiri having Scored majority of the lawful votes Cast at the said Election is hereby declared elected as member to represent Etsako West Constituency 1 in Edo State House of Assembly”
(Ground 2)
4. Whether the tribunal was right when it placed the onus of proof of certain facts relating to the validity of votes Cast in the election on the Appellants, the Petitioners not having placed before the tribunal any evidence requiring rebuttal on the parts of the Appellants (Ground 1)
5. Whether, having held that the Viva Voce evidence of the parties seemed to contradict each other, and that evidence of the two sets of Respondents appeared to deflate the of the Petitioners, the tribunal was right to declare the 1st Petitioner (now the 1st respondent) winner of the election based on what the tribunal Called a plethora of documentary evidence” (Ground 6)
6. Whether the tribunal was right in holding that the 2 sets of Certified True Copies of documents tendered by the petitioners and the 3rd – 5th Respondents (now Appellants) respectively, “shall be given equal treatment in this Judgment.” (Ground 5)
The 1st Respondent in Appeal No.CA/B/EPT/266/08 identified Six issues for determination:
1. Whether the tribunal was right when, in spite of its own finding that the Petitioners did not prove the Criminal allegations in the petition beyond reasonable doubt, it proceeded to nullify the election and return of the 3rd Respondent (Ground 4)
2. Whether, given the Provisions of Section 145 and 147 (2) of the Electoral Act, 2006, the tribunal was right in returning the 1st petitioner as winner of the election, alleged by the Petitioners themselves to be marred in some units and wards by corrupt practices and non – Compliance with the Provisions of the Electoral Act 2006 (Ground 3)
3. Whether the tribunal, after finding that the Election into Edo State House of Assembly in Etsako West Constituency I was marred by several instances of non – Compliance with the Electoral Act, 2006, in the Units and Wards where the elections were questioned was right to hold that “the 1st Petitioner, Prince Hassan Kadiri having Scored majority of the lawful Votes Cast at the said election is hereby declared elected as member to represent Etsako West Constituency I in Edo State House of Assembly”. (Ground 2)
4. Whether the tribunal was right when it placed the onus of proof of facts relating to the validity of votes Cast in the questioned units and wards in the election on the Appellants, who alleged that the conduct of the election was free, fair and valid (Ground 1)
5. Whether, having held that the Viva Voce evidence of the parties seemed to contradict each other, and that evidence of the two Sets of Respondents appeared to deflate that of the Petitioners, the tribunal was right to declare the 1st Petitioner (now the 1st Respondent) winner of the election based on what the tribunal called “a plethora of documentary evidence” (Ground 6)
6. Whether, the tribunal was right in holding that the 2 Sets of Certified True Copies of documents tendered by the Petitioners and the 3rd – 5th Respondents (now the Appellants) respectively, “shall he given equal treatment in this Judgment” (Ground 5).
The Second Respondent compressed issues Nos, 1, 2, 3, & 5 of the Appellant’s brief into one issue, which he rephrased thus:
(I) “Whether the Tribunal was right in nullifying the election and return of the 3rd Respondent and declaring the 1st Respondent as elected and returned in spite of its own findings that the Petitioners did not prove the Criminal allegations in the Petition beyond reasonable doubt and that
the evidence of the respondents contradicted and deflated that of the Petitioners.”
The 2nd Respondent went further to adopt the 4th and 6th Issues formulated by the appellant The 3rd & 4th Respondents in Appeal No.CA/B/EPT/266/2008 filed their briefs of argument in which they raised.
In Appeal No.CA/B/EPT/267/2008, the Appellant (PDP) raised Seven issues for determination thus:
1. Whether or not the Honourable tribunal carried out a proper or any evaluation of the evidence led by the parties to this Petition.
This issue was distilled from Grounds 1,4,6,7,31 and 33 of the “mended Notice of Appeal.
2. Whether or not the Honourable Tribunal was in the Particular circumstances of this case right when it held that the only condition under which it would examine wards and units other than those contested by the 1st and 2nd Respondents in their Petition was if the Appellant and 6th Respondent had filed a list of objection Challenging particularly listed votes. This issue was distilled from Grounds 2, 3 and 29 of the Amended Notice of Appeal.
3. Whether the Case of TERAB V. LAWAN (1992) 3 NWLR (PT.231) 519 and or EZOMO V. N.N.B. PLC (2006) 14 NWLR (PT. 1000) 624 are good or any authority for the tribunal to extract facts/information from statutory forms without the testimony of witnesses in Open Court and/or without regard to the pleadings. This issue was distilled from Ground 5 of the amended Notice of Appeal.
4. Whether the lower tribunal was right in refusing to include the results from Ward 4 Units 1 and 3 and Ward 8, Units 1,8 and 9 having regard to the pleading, evidence and the provisions of the Electoral Act, 2006. This issue was distilled from Grounds 9, 10 and 11 of the amended Notice of Appeal.
5. Whether the lower tribunal was not in serious error in invalidating some of the votes of the Appellant and 6th Respondent on the ground of alleged non – Compliance with the Electoral Act without Considering whether the alleged acts of non – compliance substantially affected the votes and in declaring the 1st Respondent the winner of the election after invalidating over 7,000 (Seven thousand) votes cast at the election due to no fault of the Electorates, the Appellant and/or the 6th Respondent. This issue was formulated from Grounds 12, and 32 of the Amended Notice of Appeal.
6. Whether the lower tribunal was right in physically examining result sheets in chambers, extracting fact/information from them and making findings of facts from the exercise without regard to the pleadings or and subjecting or providing the opportunity to subject the facts/information so extracted to any kind of examination through or by any witness in the open Court. This issue was formulated from Ground 13 of the amended Ground of Appeal.
7. Whether from the evidence and the provisions of the Electoral Act, 2006, the tribunal was right in its finding of non – accreditation, over – voting, mutilation, alteration, non – stamping of result sheets, voting/thumb printing on voters register and in invalidating the Appellant’s 6,299 votes or anyone of the votes on those grounds or any of them when those grounds are not predicted on the pleadings or evidence led and tested in open Court. This issue was distilled from Grounds 8, 14, 15. 16, 17, 18 -27.
8. Whether having regard to the pleadings and the evidence particularly the documentary evidence tendered by the Appellant, the 6th Respondent and the 3rd – 5th Respondents, the lower tribunal was right in holding that there were illegal or invalid votes east for the Appellant and the 6th Respondent which are deductible from the total votes cast for them. This issue was distilled from Grounds 28 and 30 of the Amended Notice of Appeal.
The 1st Respondent Prince Hassan Kadiri identified Eight issues for determination, thus:
1. Whether or not the Honourable Tribunal carried out a proper or any evaluation of the evidence led by the parties to this petition. This issue was distilled from Grounds 1, 5, 7, 31 and 133 of the Amended Grounds of Appeal.
2. Whether or not the Honourable Tribunal was in the particular circumstances of this case right when it held that the only condition under which it would examine wards and units other than those contested by the 1st and 2nd Respondents in their petition was if the Appellant and 6th Respondent had filed a list of objection challenging particularly listed votes. This issue was distilled from Grounds 2, 3 and 29 of the amended Notice of Appeal.
3. Whether the case of TERAB V. LAWAN (1992) 3 NWLR (PT. 231) 519 and or EZOMO V. N.N.B. PLC (2006) 14 NWLR (PT.1000) 624 are good or any authority for the tribunal to extract facts/information front statutory forms without the testimony of witnesses in open Court and/or without regard to the pleadings. This issue was distilled from Ground NO.5 of the amended Grounds of Appeal.
4. Whether the lower tribunal was right in refusing to include the results from ward 4 Units 1 and 3 and Ward 8, Units, 1, 8 and 9 having regard to the pleadings, evidence and the Provisions of the Electoral Act, 2006. This issue was distilled from Grounds 9, and 11 of the amended Grounds of Appeal.
5. Whether the lower tribunal was not in serious error in invalidating some of the votes of the Appellants and the 6th Respondent on the Ground of alleged non-Compliance with the Electoral Act without considering whether the alleged acts non – compliance substantially affected the votes and in declaring the 1st Respondent the winner of the Election after invalidating over 7,000 (Seven thousand) votes cast at the election due to no fault of the Electorates, the Appellant and or the 6th Respondent. This issue was formulated from Grounds 12 and 13 of the Amended Notice of Appeal.
6. Whether the lower tribunal was right in physically examining result sheets in chambers extracting fact information from them the making findings of facts from the exercise without regard to the pleadings or and subjecting or providing the opportunity to subject the facts/information so extracted to any kind of examination through or by any witness in the open Court. This issue was formulated from Ground13 of the amended Notice of Appeal.
7. Whether from the evidence and the provisions of the Electoral Act 2006, the tribunal was right in its finding of no accreditation, over-voting, mutilation, alteration, non-stamping of result sheets, voting/thumb printing all voters register and in invalidating the Appellant’s 6, 299 vote or anyone of the votes on those grounds or any of them when those grounds are not predicated on the pleadings or evidence led and tested in open Court. This issue was distilled from Grounds 8, 14, 15, 16, 17, 18,19,20,21,22,23,24,25,26 and 27.
8. Whether having regard to the pleadings and the evidence particularly the documentary evidence tendered by the Appellant, the 6th Respondent and the 3rd – 5th Respondents the lower tribunal was right in holding that there were illegal or invalid votes cast for the Appellant and the 6th Respondent which are deductible from the total votes for them. This issue was distilled from Grounds 28 and 30 of the amended Notice of Appeal.
In addition, he raised a Preliminary objection to issue No.6 formulated by the Appellant.
The 2nd Respondent raised a preliminary objection to the appeal, and as an alternative on the merits of the appeal, adopted the issues formulated by the Appellant.
Curiously, the 1st and 2nd Respondents in appeal No.CA/B/EPT/265/2008 Cross appealed, and in their Cross appeal raised two issues thus:
(a) Whether the tribunal was right in holding that the evidence of the two sets of Respondents and
their witnesses appear to deflate those of the Petitioners.
(b) Whether the members of the lower Tribunal were right when they failed to deduct the result from ward 4 Unit 4 from the total scores of the petitioner and 1st Respondent respectively having earlier nullified the result.
From all the issues formulated by the Appellants, Respondents and Cross Appellants in the three appeals. Three Composite issues can be distilled therefrom. Thus:
1. Whether the trial tribunal properly evaluated the evidence adduced before it before reaching its Judgment which is the subject of this appeal.
2. Whether on the totality of the evidence led at the lower tribunal the 1st and 2nd Respondents in appeal No.CA/B/EPT/265/2008 proved their case as to be entitled to Judgment.
3. Whether any of the appeals before us or any issue raised in any of them is incompetent so as to render any such appeal or any such issue improper before us.
The above three issues run through the entire garment of all the issues formulated in all the appeals before us and I propose to take this appeal on the basis of the said three issues. Since the last issue touches on competence of some of the appeals and or issues, I intend to start with it.
In the 1st Respondent’s brief of argument in appeal No. CA/B/EPT/265/2008, 1st Respondent raised objection to appellant’s Ground two of the grounds of appeal, on the Ground that no issue was formulated there from, and therefore deemed abandoned.
Grounds 7 & 8 of the grounds of appeal were also attacked on the basis that no issues were distilled from them.
In his submission in support of the preliminary objection, learned Counsel for the 1st Respondent Cross appellant Mr. Erhabor argued that a ground of appeal from which no issue is formulated is deemed abandoned and liable to be struck out. He referred to the appellant’s brief in respect of issue NO.2 as framed, and ground 4 of the grounds of appeal from which that issue was said to have been distilled, and submitted that nothing in that ground relates to issue NO.2. Further, Counsel argued, that grounds 7 & 8 did not relate to any issue formulated by the appellant and should equally be struck out.
In his reply, the appellant contended that none of the afore said grounds of appeal was abandoned as those grounds were adequately covered by the issues raised.
I have considered both arguments and related them to the issues formulated by the appellant in relation to the grounds of appeal filed by him, the law is that once an issue can be tied to any ground of appeal filed by an Appellant, such an issue is competent and the ground of appeal from which it is derived cannot be deemed to be abandoned. (See NNDC V. PRECISION ASSO. LTD. (2006) 16 NWLR (PT. 1006) 527 at 550.
Therefore when an issue is covered by any or all of the grounds of appeal, such an issue is competent. In the instant Case, ground two of the ground of appeal complains of failure on the part of the lower tribunal to evaluate and properly consider the evidence led before it, and issue NO.2, talks of failure to give proper consideration to the votes of the Petitioners Challenged by the Appellant at the tribunal. The votes allegedly Scored by the parties to the election were in evidence and therefore if paper consideration was not given to them, that becomes a matter of evaluation covered by ground two. This head of objection is: therefore unmeritorious. Similarly, grounds 7 and 8 touch on evaluation of evidence generally in relation to results in some of the wards, therefore any issue raised on evaluation covers those grounds.
On the whole, the objection of the 1st Respondent in relation to the foregoing grounds of appeal of the Appellant in appeal NO.CA/B/EPT/265/2008 is misconceived and therefore overruled.
In appeal No.CA/B/EPT/267/2008, brought by the Peoples Democratic Party (PDP) which was the 20d Respondent at the lower tribunal, the 2nd Respondent Crass Appellant filed a notice of Preliminary Objection against the appeal on Six grounds namely; that the Appellant in appeal NO.CA/B/EPT/265/2008 and the Appellant in appeal NO.CA/B/EPT/267/2008 are the same Juristic persons.
Secondly, that the Appellant in appeal NO.CA/B/EPT/265/2008 (Garuba) had already appealed against the same judgment of the lower tribunal.
Thirdly, that the reliefs sought by the appellant in appeal NO.CA/B/EPT/265/08 and the one in appeal NO.CA/B/EPT/267/08 are the same.
Fourthly, that the reliefs sought in the two appeals are for the benefit of the appellant in appeal NO.CA/B/EPT/265/08.
Fifthly, that both appeals are the same and claim the same reliefs.
Finally that no order was made against the Appellant in appeal NO.CA/B/EPT/267/08.
My understanding of the complaint in this preliminary objection is that all told, the Appellant in Appeal NO.CA/B/EPT/267/08 ought not to have appealed because no order was made. The Sole issue formulated in this notice of preliminary objection, is whether the appellant herein against which no order was made by the lower tribunal can or has a right of appeal. In his argument, learned Counsel for the 2nd Respondent in appeal No.CA/B/EPT/267/08 Contended that the mere fact that the Appellant (PDP) was a party, does not confer right of appeal where such a party was not affected or aggrieved by the decision given. He anchored his argument that PDP was not an aggrieved person or party nor had it a legally recognisable interest. Reliance was placed on a number of cases, but heavier reliance was placed on the decision in NCICE V. OBI (2006) 18 WRN 33 at 319 – 320, per OMOKIRI JCA page 316,319 – 320 and per ALAGOA JCA at 299.
In the circumstance, Counsel had argued, the appeal by the appellant in appeal No.CA/B/EPT/267/08 becomes an abuse of process in the light of the appeal No.CA/B/EPT/265/08.
In his own notice of Preliminary Objection, the 2nd Respondent and (Curiously) the 2nd Respondent again raised an objection to issue No.6 formulated by the appellants on the ground that that issue did not arise from Ground 13, 14 & 34 of the grounds of appeal of the Appellant as indicated in his brief.
The Appellant (in appeal No.CA/B/EPT/267/08) in his reaction to both objections argued to the Contrary, maintaining in the main that issue NO.6 was adequately covered by his grounds of appeal. He also argued that the appeal itself is competent and not an abuse because he has a stake in the election of the appellant in appeal No.CA/B/EPT/265/08, and therefore has an interest in the subject matter, thus making him an aggrieved or an interested party.
I have Carefully, Patiently and Studiously Considered the arguments on the Preliminary Objection, and I am of the firm but humble view that issue No.6 attacked by the 1st & 2nd Respondents is adequately covered by the grounds of appeal read as a whole. In relation to the argument of the appeal proper, I will like to refer to Section 221 of the Constitution of the federal Republic of Nigeria 1999, which provides that No association other than a Political party can Canvass for votes for any candidate at any election. By this provision, it follows that a Political Party, which the appellant is, has a right to Canvass for votes for a Candidate it sponsors in an election. The pleadings and evidence are replete with facts which clearly established that the Appellant in appeal NO.CA/B/EPT/265/08 was the candidate of the appellant in appeal NO.CA/B/EPT/267/08 and was Sponsored by the later for purposes of that election.
As was stated by OGUNTADE JSC in AMAECHI V. INEC (2008) 10 WRN 1 at 117
“The Primary method of Contest for elective offices is therefore between parties. If as provide in Section 221 above, it is only a Party that Canvasses for votes, it follows that it is a party that wins an election. A Good or bad Candidate may enhance or diminish the prospect of his Party winning but at the end day, it is the party that wins or loses an election” …
It follows that from the provisions of section 221 as interpreted in the above observation of the learned Justice, the fate of a Political party and its Candidate are interwined commingled and interwoven such that what affects one affects the other.
The loss of one imply the loss of the other, and the victory of one implies the victory of the other. Each one of them therefore has a stake and is affected by a decision of a Court affecting the other because they are both jointly Concerned and connected in an election contest. Each one is therefore a vanquished and aggrieved person where there is a loss, and Can seek redress to remedy his anguish, and a victor and successful party in the situation of victory.
This point is made clearer by the fact that the petitioner in the Court below joined PDP in realisation of the observation I have made above.
I have read the NGIGE case Supra, andNow to the appe I am of the view that reliance placed on it in support of the objection derives from a total and complete misapprehension of the facts in that case which are clearly distinguishable from the facts of this case.
In that case the parties that appealed were officials of INEC who had no personal or collective interest being expected to be independent without any leaning on either side, and who should not have any interest in the result of the election which ever way it goes, as such a result will not affect them either in their person or office.
In the light of the above therefore, I adjudge the preliminary objection as misplaced, and hold that the issues raised in appeal NO.CA/B/EPT/267/08 and the appeal itself are both Competent and appropriately laid before us. Those objections are therefore hereby overruled.
als proper. I have already summarised the issues from the three appeals having disposed of issue No.3 on Competence of appeal NO.CA/B/EPT/265/08 and appeal No.CA/B/EPT/267/08, it remain two broad Issues which run through the entire three appeals.
On issue NO.1, on evaluation, the appellant’s Counsel in appeal NO.CA/B/EPT/265/08 Ali SAN Contented that the lower tribunal proceeded to make pronouncements on the Credibility of the witnesses for the petitioner at the lower tribunal, and believing their testimonies without a corresponding consideration, analysis and evaluation of the witnesses for the Respondents before reaching its Conclusion in believing petitioners witnesses. He referred to various observations made by the lower tribunal in respect of the witnesses of the Petitioner notably:
PW1 at page 1714 line 23, PW2 page 1715 of the record of appeal line 1715 line 11 of the record of appeal for PW2, page 1715 lines 23 – 24 for PW3, page 1716 line 4 for PW4 page 1716 line 25 – 26 for I’W7, page 1717 line S for PWS and page I7IS line 15 for PW9 wherein the tribunal accepted the evidence of these witnesses without a Corresponding Consideration of the appellant’s witnesses and Submitted that this method was roundly Condemned by the Supreme Court in MOGAJI ODOFIN (1979) 4 SC 65 at 66 – 67 where the Supreme Court prescribed the appropriate approach for evaluation of evidence of witnesses on both sides In a case before it by trial Courts.
Counsel referred to the observation of the tribunal at page 1740 of the record wherein the tribunal had observed that it could not examine wards and units order than those set out by the petitioners before it because the 1st & 2nd Respondents did not file a list of objections challenging a list of votes, and that the attack on Petitioner’s votes in Auchi Ward 5 was not sufficient to comply with paragraph 5 of 1st schedule to the Electoral Act 2006, and submitted that paragraph 12 (2) of 1st Schedule to the Electoral Act did not impose any obligation beyond a mere pleading which will give the opposite party sufficient notice of his Compliant against the Votes Credited to his opponents as what is required is a pleading of facts and not evidence by which such facts are to be established. He therefore contended that by paragraph 48 & 49 of his reply to the petition, sufficient facts were pleaded to justify the reception in evidence of his complaint on the Votes Credited to the Petitioner at the election generally. He argued therefore that the tribunal misconstrued the essence of paragraph 12 (2) of Schedule I to the Electoral Act and came to a wrong evaluation of the evidence before it.
Counsel further condemned the physical examination of Exhibits 18A – 21A by the tribunal and its use and use of the outcome of such examination to nullify the results shown in those Exhibits, and submitted that that examination was self-induced, self imposed and unsolicited which violated the principles of fair hearing having not arisen from the pleadings of the parties as an issue.
Counsel Copiously referred to paragraphs 40, 41, 45- 51, and 59 – 72 of the Petition and submitted that the Case of the petitioner at the lower tribunal from those paragraphs materially differ from the findings of the tribunal in consequence of the tribunal’s physical examination of Exhibits 18A – 21A which examination occasioned a miscarriage of justice more so in the face of the express findings of the tribunal that the allegation of corrupt practices made in those paragraphs were not made out.
Learned Counsel criticized the tribunal’s exclusion of votes from certain units of some of the Wards in the Constituency thus unjustifiably reducing the volume of votes Scored by the Appellant at the election, further it was submitted that the lower tribunal’s nullification of the election of the Appellant on the ground of multiple accreditation, over voting and illegal accreditation when there was no such case made by the 2nd & 3rd Respondents, amounted to setting up a new Case for the 1st & 2nd Respondents outside the grounds relied upon in their petition, an exercise which did not flow from the state of the pleadings. Even then, he argued, the Case of over voting and other electoral malpractice were not proved.
In his brief of argument, learned Counsel for the 1st Respondent Mr. Erhabor on the issue of evaluation, after setting out from the records the observations of the tribunal on the evidence of PW1 – PW4, PW7, PW8, PW9, PW12 and PW16, went on to submit that the lower tribunal canned out a proper evaluation of the evidence adduced by the parties before arriving at its findings of fact, and that the appellant has not shown that those findings were perverse or that there were no sufficient evidence to support them.
On whether the appellant Complied with paragraphs 12 and 15 of the 1st Schedule to the 2006 electoral Act in his complaint concerning some polling units, Counsel submitted that the pleadings of the Appellant on the objection fell short of the requirement of the said paragraphs 12 & 15 and therefore the lower tribunal was right in so holding and discountenancing the Complaint of the Appellant in that regard. On the exclusion by the lower tribunal of some of the votes recorded by the Appellant in some of the polling units, Counsel submitted that the votes in those units were unreliable, on the ground that there was evidence that the Presiding Officers in those Units did not return the Results and Election materials after the polls as required by Section 66 of the Electoral Act 2006.
On the physical examination of the lower tribunal of Exhibits 18A – 21A which led to the nullification of the results in some of the units, Counsel submitted that there was documentary evidence which demonstrated multiple registration, double accreditation, over voting and other electoral malpractices, and therefore the tribunal was right in nullifying the results shown in those exhibits.
Counsel also argued that the lower tribunal was right in rejecting the results in some of the units on the basis of the decision of the INEC Officials to exclude them.
The arguments of the 2nd Respondent in reply to the submissions of the Appellant’s Counsel on this issue followed closely those of the 1st Respondent, and there is therefore no need to go through them as to do so would be repetitive.
The argument of Counsel for the 3rd – 5th Respondents in appeal NO.CA/B/EPT/265/08 on evaluation by the lower tribunal was essentially similar to those of the Appellants in appeal NO.CA/B/EPT/265/08.
The Judgment of the lower tribunal from which these various appeals arise can be seen at pages 1710- 1750 of volume 2 of the record of appeal. A detailed reading of the Judgment of the lower tribunal shows that the Judgment is contained in Forty pages of the record of appeal, out of which Thirty pages or three quarters thereof was devoted to Coping practically verbatim of the evidence of the witnesses and only Ten pages or One quarter thereof was devoted to the actual Judgment. In the assessment of witnesses, the lower tribunal reached conclusions on the testimonies of the witnesses for the Petitioner without a Corresponding reference to the evidence of witnesses for the Respondent and a comparative analysis of both sides of the Case before ascribing probative value and credibility as is clearly shown at pages 1714 – 1718. The reference to the evidence of the witnesses for Respondents before it, and now Appellants before us in appeal No.CA/B/EPT/265/08, were at pages 1723 – 1736.
The observations of the tribunal at page 1714, line 23 for PWI, 1715 line 11 for PW2, 1715 lines 23 – 24 for PW3, 1716 line 4 for PW4, 1716 lines 24 – 26 for PW7, 1717 lines for PW8, and I718 line 15 for PW910 the effect that the evidence of these witnesses were not Contradicted ought to have been reached after an examination of the evidence of the Respondent before it.
As enshrined in MOGAJI V. ODOFIN (1978) 4 SC 65 at 66 – 67, a trial court faced with two competing evidence of parties in a Case before it has a primary duty to Consider the evidence laid by the Plaintiff and that led by the defence and put both sides of the evidence on an imaginary Scale, weigh them, and decide upon the preponderance of evidence which has more weight. If therefore a trial Court decides an issue after considering the evidence laid by the Plaintiff before proceeding to examine the evidence laid by the defence, he would clearly be in error, and would have prejudiced the issues before ever Considering the Case of defence. A trial Court must base its Consideration of a Case on the totality of the evidence of the parties laid before it.
The approach adopted by the lower tribunal in its evaluation of the evidence before it by its method referred to above, as rightly submitted by Appellant’s Counsel in appeal No.CA/B/EPT/265/08 is erroneous.
At page 1742, the lower tribunal observed as follows
“On the whole we hasten to make the point that the petition as it stand by the vive voice (sic) evidence of the parties they seem to contradict each other. That is, evidence of the two sets of respondents appear to deflate that of the petitioners … ”
Having reached the Conclusion that the evidence of the two sets of Respondents destroyed that of the Petitioner, it was preposterous to nullify the effect of this finding by purporting to re-open the making of evaluation in Scrunching for documentary evidence which by the Conclusion it had reached on the evidence of the parties had the effect of Contradicting the viva voce evidence of the Petitioner. This is to say the least, blowing hot and cold the same time, or closing the stable when the animal had bolted away. The finding that the evidence of the Respondents destroyed that of the petitioners had concluded that matter. There was therefore no justification for any further exploration of the matter by the lower tribunal.
A very curious aspect of the matter was that alter this fatal finding the lower tribunal then Commenced a Consideration with the exclusion of some of the votes scored by the Appellant and reached a Conclusion that they were properly excluded by the Collation officers.
Part IV of the Electoral Act 2006 Section 27 thereof dealing with procedure at Election gives INEC power to postpone election in certain circumstances. From the said section 27 of the Electoral Act 2006, the power given to INEC is to postpone election in certain circumstances and not to Cancel an Election already held.
Therefore the observation of the lower tribunal at page 1743 – 1744 of the record of appeal upholding a purported Cancellation by the collation Officer in some of the Wards were elections were held appears to me unsupported by law as the actions of the Collation Officers in those Cancellations were altra vires having no foundation in Law.
Further more, at pages 1748 – 9, the tribunal had found that the allegations of corrupt practices, election malpractices, forgery and use of offensive weapons, snatching of ballot papers and ballot boxes, illegal thumb printing of ballot papers were not proved. On these allegations the tribunal observed inter alia as follows:
“we resolve this issue in negative, with a “NO” answer, as petitioners’ evidence before us did not meet the standard of proof beyond reasonable doubt of those allegations that are criminal in nature … ”
Having held that the allegations of electoral malpractices were not proved, it did not lie in the mouth of the tribunal to turn round and exclude the Votes Cast in those Wards were allegations of malpractices were not proved. This is Self Contradictory and poor evaluation.
The lower tribunal observed at page 1740 that the pleading in paragraph 48 of the reply of the 1st & 2nd Respondents (Appellants herein) at the lower tribunal did not fully comply with the provisions of Paragraph 15 of Schedule 1 to the Electoral Act 2006 by not giving sufficient particulars in attacking the petitioners votes in Auchi Ward 5, Unit 6. Now paragraphs 48 of the 1st & 2nd Respondents (Appellants herein) states as follows:
“The Respondents aver that the petitioners were involved in Electoral fraud. They hijacked the voting Process in Auchi Ward 1 Unit 6 and allocated votes to themselves and a party that did not contest the election.
The votes allocated to the Petitioners in this unit was occasioned by corrupt practices and fraud. Notice of objection to the votes allocated to the petitioners in this unit is hereby given. ”
The observation of the lower tribunal against this pleading is not an objection that there was no pleading on the facts objected to by the 1st & 2nd Respondents, but that there were no sufficient particulars. The Electoral Act 2006 in paragraph 5 of Schedule I provides that evidence need not be stated in an election tribunal, but that the tribunal or Court may order such further particulars as may be necessary.
Therefore, if a party to a petition conceives that a fact has not been sufficiently pleaded so as to give him sufficient notice of such facts in respect of which evidence will be led, he is entitled under paragraph 5 aforesaid to apply for further and better particulars requesting for such additional facts on the point or points for which he requires clarification and deeper understanding, and the tribunal or Court can order the opposite party to provide such further and better particulars.
In the instant case the Petitioner at the lower tribunal did not ask for further and better particulars in respect of the pleadings in paragraph 48 of the reply to the Petition, nor did the lower tribunal make any such order. The rational Conclusion therefore is that Paragraph 48 of the reply of the 1st & 2nd Respondents to the Petition provided not only sufficient notice to the Petitioner of the objection of the 1st & 2nd Respondents to the votes in question, but also provided sufficient basis for evidence to be led on the objected votes and a Consideration of those objections by the lower tribunal, instead of ignoring the operative effect of the pleadings in paragraph 48 as the lower tribunal did by its aforesaid observation at page 1740 of the records.
In its Consideration of the result of unit One in Ward 8, the lower tribunal observed that three versions of the same results were tendered namely; Exhibit 49 by the Petitioner, Exhibit 48 by the 1st & 2nd Respondents in the lower tribunal (Appellant herein) and Exhibit 84 by INEC. The tribunal then proceeded to exclude the result from that unit on that ground. The evidence showed that these exhibits reflected the same results, which means the Scores by the parties in that unit is Common ground.
What is common ground imports that is a point in which parties are agreed, this fact lays to rest the Score, and therefore it ought not have been excluded. Even if the exhibits were different, which is not the Case, the lower tribunal in such a Circumstance ought to evaluate each of the documents so tendered and make findings on it before preferring one to the other, or rejecting all, and not embark on a blanket rejection of the results reflected on the exhibits as it did in this Case.
In the light of all that I have said above on this issue, I am bound and do hereby resolve it in the negative. Therefore grounds 1,3,4,6,7,8,10,11,12,13 and 14 of appeal No.CA/B/EPT/265/08 Succeed.
On the Second issue which is on whether the Petitioners proved their Case at the lower tribunal, I need to point out that the pleading of the petitioners are replete with allegations of corrupt practices and various electoral malpractices which form the fulcrum of the Petition itself.
That this is so is clear from the Grounds of the petition set out in paragraph 78 of the Petition which reads as follows:
“your Petitioner state that the Grounds upon which this petition is brought are:
(a)That the Etsako West Constituency I election for Edo state House of Assembly Conducted by the 3rd, 4th and 5th Respondents and their agents in Etsako West Local Government Area of Edo
State on the 14th of April, 2007, in Auchi III Ward 4 units 004, Jagbe Ward 6 units 001, 002, 003, 004, 005, 006 and 007, Anwain ward 8 units 001, 002, 003, 004, 005, 006, 007, 008 and 009, and Aviele Ward 7 Units 003, 005, 007, 011, 013, 014, 015 and 017, is invalid by reason of corrupt practices or non-Compliance with the provisions of the Electoral Act 2006.
(h) That the 1st & 2nd Respondents were not duly elected by majority of lawful votes Cast at the election.”
In pleading facts supporting the foregoing grounds, the petitioner attacked the votes in Virtually all the wards where election was held in the Constituency by paragraphs 40, 41, 44, 45 – 51, 59 – 72 and numerous other paragraphs of the petition alleging all manner and forms of electoral malpractices and offences. These being allegations of Crime, are by law required to be proved beyond reasonable doubt. See ONOH V. NWOBODO (1984) ALL NLR Page 1 – 104 KALGO V. KALGO (1999) 6 NWLR PT. 608 639 at 646; BUHARI V. INEC (2008) 4 NWLR (PT.1078) 546 at 664 where the Principle of proof beyond reasonable doubt in the allegations of Crime in the Evidence Act was emphasized as a decideratum. The tribunal appreciated the decree of proof the burden of which was cast on the Petitioner in the lower tribunal when at pages 1748 it started thus:
“Whether or not the allegation of corrupt practices, electoral malpractices, thuggery, use of offensive weapons, snatching of ballot papers and ballot boxes and illegal thumb printing of ballot papers have been proved beyond reasonable doubt”.
It then went on to find as a fact that the Petitioners before it did not meet the standard of proof beyond reasonable doubt of the allegations in their Petition which were criminal in nature relying on the Case of HARUNA V. MODIBO (2004) 16 NWLR (PT.940) 487, and then resolved that issue in the negative with a Capital “NO” as an answer. As I stated earlier the essence, and fulcrum of all the allegations in the Petition were criminal.
I have gone through the garmont of the evidence led in the Petition and I agree with the lower tribunal in its finding that the allegations were not proved beyond reasonable doubt. It is surprising that after reaching this Conclusion and making this crucial finding, the lower tribunal turned summersault to declare the Petition Successful. I therefore resolve this second issue in the negative. Grounds 15, 16, 17 and 18 of appeal No.CA/B/EPT/265/08 therefore succeed.
In the final result, appeal No.CA/B/EPT/265/08 Succeeds. The Judgment and orders of the lower tribunal in Petition NO.EDSA/EPT/14/07 are hereby set aside and the Petition before the lower tribunal is dismissed.
In respect of appeal NO.CA/B/EPT/267/08, my observations, findings and conclusions in appeal NO.CA/B/EPT/265 apply to it, and are hereby adopted. There is therefore no need to repeat them. That appeal also succeeds. I make the same orders as I made in appeal NO.CA/B/EPT/265/08.
On the appeal by the 3rd-5th Respondents in the lower tribunal and appellants in appeal NO.CA/B/EPT/266/08, I will also say that essentially my observations, findings and conclusions have taken care of this appeal.
In respect of the Cross Appeal of the 1st & 2nd Petitioners in the lower tribunal and Cross Appellants in appeal NO.CA/B/EPT/265/08 herein, my observations, findings and conclusions in appeal NO.CA/B/EPT/265/08 which do not require a repetition, and are therefore hereby adopted render that Cross Appeal liable to dismissal. Accordingly, the Cross Appeal is hereby dismissed.
In the final analysis the election of Hon. Zakawanu Garuba as member representing Etsako West Constituency in the Edo State House of Assembly is hereby affirmed.
In appeal NO.CA/B/EPT/265/08 the 1st and 2nd Respondents will pay the appellant cost fixed at N10,000.00 (Ten thousand Naira). In appeal Nos. CA/B/EPT/267/08, CA/B/EPT/266/08, and the Cross Appeal there will be no order as to costs.
SAKA ADEYEMI IBIYEYE, OFR, J.C.A.: I agree.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, NWOSU-IHEME, JCA, in these appeals. I agree with the reasons and conclusions therein. I have nothing more to add.
Appearances
YUSUF ALI SAN, with AHMED TAFA,
O. ADETUNJI, I.O. ATOFARATI and N.N. ADEGBOYE.For Appellant
AND
MR K.E. MOZIA with H.G. ERHABOR (MR.) and MRS. M.I. MOZIA,
MR. A. OSARENKHOE, CHIEF F.O. ORBIH, with P. UGBOME, P.E. EBUIHE, M.O.
IGEKPE, S.I. AGOHA (MRS.), I.O. LAWAL (MISS) CHIEF G.K. AGABI SAN,
with V. AIGBOKHAEVBO, EMMANUEL FAGBEME, AYO AKAM, A. EKON BASSEY and AYI OBASEKI (MISS).For Respondent
