ACTION CONGRESS OF NIGERIA v. JIMOH AFIZ ADELOWO & ORS.
(2012)LCN/5618(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of October, 2012
CA/I/EPT/NA/2/2012
RATIO
COURT: WHETHER THE COURT CAN SUO MOTU RAISE OR QUESTION AN ISSUE
It is trite that the court could suo-motu discountenance any process filed outside the stipulated time which is not regularized even if an objection has not been raised as to the utilization of such process. I am of the humble but firm view that by a mere look at the process and the date filed, the objection could and was rightly orally raised as to its validity. The court could suo-motu raise or question the competence of the reply brief in question or any process before it. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUE IS FORMULATED FROM
In a recent (unreported) decision of this court in CA/AE/86/2010 CHIEF IBIDAPO AWOJOLU VS. CHIEF J. A. ODEYEMI & 4 ORS delivered on 5th June, 2012 in a similar situation I did hold that:
“It is trite that a ground of appeal from which an issue is not formulated is deemed abandoned and liable to be struck out. In the case of ONUOHA VS. NWABUEZE (2001) WRN 84 at 91, His Lordship, Ogebe, JCA (as he then was) held that:
“It is trite law where an issue is not formulated from a ground of appeal the ground of appeal is deemed to have been abandoned………
see, PACERS MULTI-DYNAMIC LTD. vs. MV. DUNANG SISTERS (2003) 3 NWLR (PT. 648) 241″.
See, also SPARKLING BREWERIES LTD VS. UBN LTD (2001) and SOGUNRO VS. YEKU (2003) 12 NWLR (PT.835) PAGE 644 at 661 E-F, 663-664 H-B. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: WHAT CONSTITUTES A COMPETENT GROUND OF APPEAL
Where the ground is clear neither misleading nor ambiguous and discloses a reasonable ground of appeal and gives the respondent an idea of what the complaint is, the ground is competent. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: ESSENCE OF ISSUES FOR DETERMINATION
The essence of issues for determination is amongst others, to enable the parties narrow down issues raised in the ground(s) of appeal not to widen or stretch the scope of issues for determination and invariably arguments. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: ATTITUDE OF THE COURT TOWARDS PROLIFERATION OF ISSUES
In LABIYI VS. ANRETIOLA (1992) 8 NWLR (PT. 258) 139 at 159 where KARIBI WHYTE, JSC (as he then was) held concerning proliferation of issues thus:-
“The court has always frowned at and viewed with disfavour the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of issues for determination into a single issue running through them. It is patently undesirable to split the issue in a ground of appeal.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES:
MONICA B. DONGBAN MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
ACTION CONGRESS OF NIGERIA – Appellant(s)
AND
1. JIMOH AFIZ ADELOWO
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the Election petition Tribunal sitting in Ibadan (hereafter referred to as the Tribunal,) delivered on 16th August, 2012 wherein the petition of the petitioner now Appellant challenging the return of the 1st Respondent as the winner of the election in the Federal House of Representatives seat for Irepo/Oorelope/Olorunsogo Federal Constituency was dismissed.
The background facts are that the petitioner challenged the declaration and the return of the 1st Respondent Jimoh Afiz Adelowo, sponsored by the 2nd Respondent for the elections of 28th January, 2012 and 11th February, 2012 respectively, conducted by the 3rd Respondent (Independent National Electoral Commission) by a petition dated 2nd March, 2012 and filed on the same date, based on the grounds of non-qualification of the 1st Respondent non-compliance by the 1st Respondent with the Electoral Act 2010 as amended and the manuals for the election. Violence, non accreditation of voters, over-voting and intimidation were alleged to have substantially affected the election.
The basis for the petition was set out in paragraph 7 of the petition while the petition is at pages 2-12 of the printed records. The petitioner contended (in summary) as follows:-
1. That the 1st Respondent did not possess the minimum educational requirement to contest election into the National Assembly.
2. That Electorates were intimidated and chased away from polling booths on the instruction of the 1st and 2nd Respondents.
3. There were no accreditations of voters in some polling booths.
4. That there were over balloting/over-voting in some of the polling booths within the constituency.
But, the grounds of the petition were set out as in paragraph 6 of the petition (page 3 of the printed records) as follows:-
(a) “That the 1st RESPONDENT was at the time he presented himself for the election not qualified to stand and contest election into the National Assembly.
(b) That the 1st respondent was not duly elected by a majority of lawful votes cast at the election.
(c) The election and return of the 1st respondent is invalid by reason of corrupt practices and/or noncompliance with the Electoral Act, 2010 as amended.
(d) That the election was invalid by reason of noncompliance with the provisions of the Electoral Act 2010 as amended and the constitution of the Federal Republic of Nigeria, 1999 as amended”.
The reliefs the Petitioner/Appellant herein sought from the Tribunal are as follows:-
(a) “AN ORDER nullifying the declaration and return of JIMOH AFIZ ADELOWO as the winner of the House of Representatives election conducted into Irepo/Oorelope/Olorunsogo Federal Constituency of 28/1/2010 and run-off poll of 11/2/2012 respectively and which result was declared on 7/12/2010 on the ground that the 1st Respondent was not qualified to contest the election by reason of presenting to INEC credentials/certificate which do not meet the constitutional requirement.
(b) THAT IT may be determined and thus determined that the 1st Respondent, JIMOH AFIZ ADELOWO was not duly elected or returned by the majority of lawful votes cast at the re-run and run-off election into the Irepo/Oorelope/Olorunsogo Federal constituency held on 28/1/2012 and 11/2/2012 respectively.
(c) THAT IT may be determined that the said re-run and run-off election and the return of the 1st Respondent, the said JIMOH AFIZ ADELOWO was voided by acts of intimidation, harassment, manipulations of election results, and multiple thumbprint of ballot papers at the polling units and wards which clearly violate and breach the Electoral Act 2010 as amended.
(d) AN ORDER setting aside the results of all the units and wards listed in the petition as same have been affected by non compliance with the Electoral Act 2010, manuals, guidelines relating to the 2011 general elections as applicable to the re-run election for the constituency, intimidation, harassment, coercion and same was not free and fair.
(e) THAT IT may be determined that going by the lawful votes at the said election (excluding the units and wards being challenged) the petitioner and her candidate ought to have been returned and should be returned as the elected member of the House of Representatives of the National Assembly representing Irepo/Oorelope/Olorunsogo Federal Constituency after nullifying the results of the units where there were multiple thumbprint of ballot papers; where the Electoral Act and the manuals, instructions and regulations for the general election 2011 were violated; where voters were harassed and intimidated among other anomalies.
(f) IN THE ALTERNATIVE to (d) supra, the election in the whole Federal Constituency be voided for noncompliance by the officers of the 3rd Respondents and that the Tribunal pronounce AN ORDER directing the 3rd respondent to conduct a fresh election into the Irepo/Oorelope/Olorunsogo Federal Constituency in view of the fact that the re-run and supplementary run-off election of 28/1/2012 and 11/2//2012 were marred with non-compliance with Electoral Act 2010, manuals, guidelines relating to the 2011 general elections as applicable to the rerun election for the constituency; intimidation, harassment, coercion and same was not free and fair.”
At the close of trial, the tribunal dismissed the Appellant’s petition, pages 1126-1166 of the printed records.
The Appellant being dissatisfied with the judgment, appealed to this court vide a Notice of Appeal dated and filed on 5th September, 2012 containing sixteen (16) grounds of Appeal from which five (5) issues were formulated for determination by this court. They are as contained in the Appellant’s brief of argument dated and filed on 21st September, 2012. The issues are:
(1) “Whether the various security organizations whose personnel though unnamed committed various acts were necessary parties to be joined to the petition and if not joined would necessitate the striking out of the paragraphs relating to them. Covers Grounds 1, 2 and 3 of the Notice of Appeal.
(2) Whether the learned tribunal justices were wrong in refusing to nullify the results of wards and units complained of in the petition i.e. ward 1 unit 1, ward 2 unit 3, ward 5, units 2 and 3 and ward 10 unit 3 of Olorunsogo Local Government and ward 1 unit 2 and ward 3 unit 1 of Oorelope Local Government for non-compliance among other when the results showed there were more ballot papers than those allotted to the polling station and voters on queue. Covers Grounds 4, 7, 8, 9 and 10.
(3) Whether the learned trial tribunal justices were wrong in relying on the evidence of DW35 and exhibits 169, 170, 171, 172 and 173 when the said witness and exhibit (sic) were not in compliance with the provisions of paragraph 12(3) of the 1st schedule to the Electoral Act 2010 as amended, Covers grounds 5, 5, 8 and 9.
(4) Whether in view of the state of the pleadings, the 1st Respondent has a duty to proof (sic) his possession of minimum educational qualification as to warrant his qualification for election into the National Assembly and whether he is qualified to contest the election into Irepo/Oorelope/Olorunsogo Federal Constituency, Covers grounds 11, 12 and 15.
(5) Whether on the balance of probability the election return of the 1st Respondent by the 3rd Respondent for Irepo/Oorelope/Olorunsogo Federal Constituency should not have been nullified. Covers grounds 14 and 16.”
In response, the 1st and 2nd Respondents filed their brief of argument dated 28th September, 2012 on the same date in which a Notice of Preliminary Objection was raised and argued.
The learned counsel to the 1st and 2nd Respondents also adopted the issues as raised by the Appellant which were argued accordingly. The learned counsel on behalf of the 3rd Respondent gave a Notice of preliminary objection (pursuant to order 10 Rule 1 of the 2011 Rules of this court) to the appeal and in the event that the objection be over ruled, rephrased and/or re-couched the five (5) issues formulated by the Appellant and argued same in response.
The 1st and 2nd Respondents and the 3rd Respondent filed two separate Notices of Preliminary Objection incorporated in their respective briefs.
At the hearing of the appeal W. A. Olajide Esq. learned counsel to the 1st and 2nd Respondents before the preliminary objections were argued, objected to the utilization by this court of the reply brief dated and filed on 5th October, 2012 by the Appellant in that it was filed outside the stipulated time in line with the provisions of paragraph 13 of the court’s Practice Direction. It was argued that it is incompetent and ought to be discountenanced.
The learned counsel to the appellant; Kazeem. A. Gbadamosi Esq. objected to the manner in which the objection to the reply brief was made and argued that learned counsel to the 1st and 2nd respondents ought to have filed a formal application that is, a Notice ought to have been given of learned counsel intention to apply that the reply brief be discountenanced, we were urged to disregard the objection to the reply brief.
The resolution of the faulting of the reply brief filed by the appellant in response to the objection of the 1st and 2nd respondent, the preliminary objection and argument in the substantive appeal would be resolved together in cause of the judgment.
The learned counsel to the 1st and 2nd respondents in arguing his preliminary objection adopted and relied on his argument as contained in his brief earlier highlighted in this judgment. The grounds of the objection are as follows:-
(i) “That Ground 13 of the Appellant’s Notice of Appeal dated 5th September, 2012 is irrelevant as no issue is formulated thereon, thus the Ground is deemed abandoned the Honourable court shall be urged to strike out the said ground.
(ii) The Grounds 8 and 9 of the Appellant’s Notice of Appeal are rendered incompetent by proliferation of issues thereon, thus vitiating said Grounds and the Honourable court shall be prayed to strike out the said Grounds 8 and 9 and issues formulated thereon.
(iii) That Grounds 3 and 10 of the Appellant’s Notice of Appeal are incompetent as the Appellant alleged error of law and misdirection in the same grounds. The 1st and 2nd Respondents shall apply that same be struck out.”
In arguing his preliminary objection, on their first ground the learned counsel submitted that issues are to be formulated or distilled from the grounds of Appeal and a ground of appeal in which no issue is formulated is deemed to have been abandoned and liable to be struck out. Further, that the Appellant did not formulate any issue from ground 13 of its Notice of Appeal. We were urged to deem the said ground as abandoned and strike same out, reliance was placed on the cases of AKINLAGUN VS. OSHOBOJA (2006) ALL FWLR (PT.325) PAGE 53 at PAGE 76, PARAS, A-B, and HAJAIG VS. HAJAIG (2004) ALL FWLR (PT.207) PAGE 697 at PAGES 709-710, PARAS. H-A.
On their second ground, that grounds 8 and 9 of the Appellant’s Notice of Appeal and the issues formulated there from are initiated by proliferation of issues. It was submitted that more than one issue cannot be formulated from one ground of appeal but several grounds of Appeal could be covered in an issue. We were urged to strike out the appellant’s issues 2 and 3 formulated from Grounds 8 and 9 of the Appellant’s Notice of Appeal as they are bad for proliferation of issues, reliance was placed on the cases of AKINDIPE VS. C.O.P. (2000) FWLR (PT.5) PAGE 709 at PAGE 716 PARA. F and AGBEOTU VS. BRISIBE (2005) ALL FWLR (PT.257) PAGE 1454 at PAGES 1464 – 1465 PARAS H – A.
With their third ground, it was contended that grounds 3 and 10 of the Appellant’s Notice of Appeal are incompetent for alleging error of law and misdirection simultaneously in that a ground of Appeal ought not do contain an error of law as well as misdirection. It was the submission of the learned counsel that it is incurably bad, reliance was placed on the cases of AMOJAINE VS. EGUEGU (1995) 1 NWLR (PT.424) PAGE 341 at PAGE 349, PARA. D, BI ZEE BEE HOTELS LTD VS. ALLIED BANK (NIG) LTD (1996) 8 NWLR (PT.465) P.176 at P.184 PARAS A-C and UFAYO VS, DATIRI (2008) ALL FWLR (PT. 421) P.964 at P.973 PARAGRAPHS C – D. We were urged to strike out grounds 3 and 10 of the Appellant’s Notice of Appeal.
The grounds for the preliminary objection of the 3rd Respondent is as follows:-
“That Ground 13 of the Appellant’s ground of Appeal as contained in his Notice of Appeal particularly at page 1174 of the record of proceedings having been abandoned by the Appellant in his issue for determination should be struck out.
ii. That ground 3 and 10 of the Appellant’s grounds of Appeal which alleges error and misdirection in a single ground of appeal is incompetent and should be struck out.
iii. That Ground 1, 2, 4, 6, 7, 8, 9, 12, 13, 14 and 15 of the Appellant’s Ground of Appeal which alleges error in law did not quote the passage of the judgment where the errors were alleged to have occurred and are incompetent and should be struck out.
iv. That the Appellant formulated 2 issues respectively namely issues No 2 and 3 out of grounds 8 and 9 of the Appellant’s ground (sic) of Appeal.”
The learned counsel to the 3rd Respondent Kunle Faokunla Esq. in moving his preliminary objection adopted and relied on his brief of argument details of which was earlier given in this judgment. In arguing his preliminary objection, submitted that the appellant did not formulate any issue in respect of ground 13 of the Notice of Appeal, and relied on the following cases in support of his argument, OBICHIE VS. ADETONA (2009) AFWLR (PT.478) PG, 345 at 361 PARAGRAPH C – E, JIBRIN VS. BABA (2004) AFWLR (PT. 220) PAGE 1311 at 1319 PARAGRAPH B-C and TEJUOSHO VS. INEC (2009) 14 WRN 48 at 58 PARAGRAPH 40. We were urged to strike out ground 13 of the appellant’s grounds of appeal.
In respect of Grounds 3 and 10 alleging error in law and misdirection at the same time in a single ground of appeal, reliance was placed on the cases of NWADIKE VS. IBEKWE (2004) 24 WRN 32 at 72 TO 73. PARAGRAPHS 30-35 and UFAYO VS. DATIRI (2008) AFWLR (PT.421) PAGE 964 at 973 PARAGRAPHS C-D. We were urged to strike out grounds 3 and 10 of the Appellant’s grounds of Appeal, as being incompetent.
In the 3rd Respondents third ground, it was argued that in the Appellant’s grounds 1, 2, 4, 5, 6, 7, 8, 9, 12, 13, 14 and 15 of the Appellant’s grounds of Appeal, the passage of the judgment where the errors were alleged to have occurred were not quoted or reproduced, reliance was placed on the case of CHINWUBA VS. ISIAGU (2010) 15 WRN 82 at 109 PARAGRAPH 35 to 15.
With grounds 8 and 9 of the appellant’s grounds of appeal, and issues 2 and 3 formulated there from, we were urged to strike out issues 2 and 3 as being incompetent along with the grounds of appeal from which they were formulated for the reason that two issues were formulated from each ground, See GWANDU VS. GWANDU (2004) AFWRL (PT.229) PAGE 842 at 862 PARA, B-C and URAM VS. UDEKWE (2008) AFWLR (PT.421) P.984 at 988 PARAGRAPH G.
We were urged to discountenance all the argument in the Appellant’s brief.
In response to the preliminary objections raised by the respondents and reply on points of law, the Appellant filed his reply brief dated and filed on 5th October, 2012 in response to the submissions of the learned counsel to the 1st and 2nd Respondents. Also in response to that of the 3rd respondent, learned counsel filed a reply brief dated 5th October, 2012 on the same day, in which his reply on points of law was also incorporated. The two objections and the grounds upon which they were raised are similar in content except that of the 3rd respondent which contains an additional ground for the objection (ground (iii)) of not reproducing the passage alleging errors of law, the replies on point of law to the main appeal are also similar, argued in the reply briefs. I would hereby refer to the objections of the two sets of respondents as the objection.
With respect to ground 13, the learned counsel to the appellant conceded that it was a mistake to have stated that his first issue covered grounds 1, 2 and 3 instead of grounds 1, 2 and 13, it was argued to be a clerical or typographical error and not deliberately done. Learned counsel expressed the intention to abandon ground 3 of his Notice of Appeal as it bears no relevance with his issue one from which no issue was formulated in the entire brief. We were urged to allow learned counsel to link or identify ground 13 of the Notice of Appeal with issue one and to allow learned counsel to state that issue one in the appellant’s brief of argument covers grounds 1, 2 and 13 and urged the court to strike out ground 3 of the Notice of Appeal, reliance was placed on the case of AKINLAGUN VS. OSHOBOJA (2006) ALL FWLR (PT.325) 52.
On the objection that grounds 3 and 10 alleged error of law and misdirection in the same ground at the same time, it was argued that the two grounds have particulars of the alleged misdirection and error of law, see OGUNSOLA VS. IBIYEMI (2008) ALL FWLR (PT. 400) 731 at 743 and UMANU VS. ZIBIRI (2003) FWLR (PT.172) 1920; (2003) 11 NWLR (PT.832) 647 at 652. Also referred to were BADAU VS. INEC (2008) ALL FWLR (PT.435) 1794 at 1817, HAMBE V. HUEZE (2001) FWLR (PT.42) at PAGE 1 and ADERONWU & ANOR VS. OLOWU (2000) 2 SCNJ 180; (2000) NWLR (PT.625) 253.
It was argued that grounds 3 and 10 are not ambiguous or misleading. We were urged to overrule the objection and hold that the grounds complained about are competent.
On the issue concerning grounds 1, 2, 4, 5, 6, 7, 8, 9, 12, 13 and 15, that the passage of the judgment where the errors were alleged, were not quoted, the learned counsel adopted his argument as proffered concerning grounds 3 and 10 to the effect that the 3rd respondent was not misled, the particulars having explained the errors. We were urged to discountenance the objection.
On proliferation of issues, the learned counsel conceded that grounds 8 and 9 featured in the appellant’s issues two and three. This was attributed to typographical error and argued that the two grounds have no relevance with issue three. We were urged to remove the error under issue three and retain same in issue number two.
In the alternative, it was submitted that their proliferations are not enough to render the issues formulated there from as bad or incompetent, since the two grounds were not the only grounds upon which issues 2 and 3 were formulated. We were urged to utilize grounds 4, 7, 10, 5 and 6, the other grounds upon which the two issues are rested and determine these issues based on these other grounds, see GOVERNOR OF EKITI STATE VS. OYEWO & ANOR (2010) NMLR (PT.1) 212. We urged to dismiss the objection and do substantive justice and consider same as technical, which the courts have moved away from, reliance was placed on OTARU & SONS LTD vs. IDRIS (1999) 6 NWLR (PT.606) 303 at 338-339 amongst other cases, We were urged to dismiss the preliminary objection of the respondents.
With the substantive appeal, the learned appellant’s counsel Kazeem A. Gbadamosi Esq. in arguing the appeal, adopted and relied on his brief earlier highlighted in this judgment. On his first issue, submitted that the relevant provision as to necessary parties to an election petition as provided for in Section 137 (1) – (3) of the Electoral Act, 2010 and paragraph 51 (1) of the 1st schedule to the Electoral Ad, respectively, as amended did not make it mandatory that any other person apart from those mentioned therein should be made parties, even if allegations were made against them.
Learned counsel to the appellant relied on the case of OLAFEMI vs. AYO (2010) ALL FWLR PART 526, PAGE 547. PP. 595-596 in which the provisions of section 144 (1) and (2) and paragraphs 47 (1) of the Electoral Ad, 2006 which were said to be in pari materia with the provisions of Section 137 (1)-(3) of the 2010 of the Electoral Act, 2010 and paragraph 51(1) of the 1st schedule to the Electoral Ad, were considered.
It was argued that this court had in several cases where allegations of violence were made against military personnel or police in the conduct of election, have never taken the path of striking out the paragraphs dealing with such complaint and allegations, it was the contention of the learned counsel that the preliminary objection of the Respondents ought to have been struck out. INEC VS. RAY (2004) NWLR (PT. 892) PAGE 92 at 93 E – F, BUHARI VS. OBASANJO (2005) ALL FWLR (PT.258) PAGE 1604 PP.1718 – A – H, and ALALADE VS. AWODOYIN (1999) 5 NWLR (PT.604) PAGE 529 at 538 were relied upon in urging us to hold that the paragraphs relating to the unnamed military personnel alleged to have committed various acts who were not joined as necessary parties in the petition ought not to have been struck out. We were urged to set aside the order striking out the affected paragraphs of the petition.
On the Appellant’s second issue, it was submitted that the appellant’s petition, paragraphs 7, 8, 11 and 13 raised issues of noncompliance, irregularities and malpractices that allegedly affected some wards and units that make up the constituency at hand. (Pages 2-12 of the printed records). It was the submission of the learned counsel that the PW41 – Aisebogun Stephen Ayereni gave evidence concerning the results of some of the units complained about in the petition, pages 713 – 739, 739 – 741 and 766 – 778 of the printed records. The testimony at page 732, lines 18-739 line 5 was emphasised on. The learned counsel tabulated the Wards, Units, Exhibits, Registered voters, number of people in the queue, ballot papers issued, ballot papers used and unused, finally the differences. The learned counsel highlighted the differences and discrepancies in the tables and argued that these amount to non-compliance and irregularity with the Electoral Act. The following cases were cited and relied upon in support, KINGIBE VS. MAINA (2004) FWLR (PT.191) PAGE 1555 at 1602 – 1603, AREGBESOLA VS. OYINLOLA (2011) ALL FWLR (PT.570) PAGE 129 AT 138 A – 139 H, OSUNBOR VS. OSHIOMOLE (2009) ALL FWLR (PT. 463), PAGE 1363 PP 1407 and IGBEKE VS. EMORDI (2010) 10 NWLR (PT.1204) at 35 amongst others.
It was the argument of learned counsel that over balloting was evident since votes recorded were more than the number of those who were recorded to have queued up for an election.
Reference was made to the evidence of the 3rd Respondent DW2 and Exhibit L77 tendered through him as evidence of acknowledgment of the over voting in the election. Further, that evidence of over voting was led through DW37, DW3B and DW39, pages 853-869 of the printed records. Reliance was placed on Exhibits 121 to 123 series (Form EC8A (i) being the results from the polling units as giving full information as regards the units and wards they related to, see AREGBESOLA VS. OYINLOLA (SUPRA).
It was the contention of the learned counsel that there was no need to tender the register of voters as all the information regarding the number of registered voters is also contained in Form EC8A (1).
We were urged to nullify the results of the wards and units itemized in the tables in the appellant’s brief of argument.
In arguing his third issue, the learned counsel to the Appellant, submitted that by virtue of paragraph 12 (3) of the 1st schedule to the Electoral Act 2010 as amended, it is mandatory that the list of witnesses and documents to be relied upon be attached to the Respondents’ Reply and that it was not so attached, therefore that no such witnesses could be called or document utilized, The Evidence of the DW35 was referred to as she was not listed as a witness to be called and her school that she represented was also not listed, the exhibits were said not to have been listed. We were urged to expunge the evidence of the DW35 and Exhibits 158 – 173 from the records. See UKPO VS. NGAJI (2010) ALL FWLR (PT.514) at 14 and OJUGBELE VS. LAMIDI & ORS (1999) 10 NWLR (PT.621) at 167.
With the Appellant’s fourth issue, it was submitted that by the state of the pleadings, it is he who asserts in the affirmation that has the burden of proof and that in the present case, by the state of the pleadings; the burden of proof rests on the 1s Respondent. Section 133 (1) – (2) and 135 of the Evidence Act, 2011 and the case of FASOGBON vs. LAYODE (1999) 11 NWLR (PT.628) P. 543 at 558 were cited and relied upon.
The evidence of PW40, the Chief Legal Officer of the 3rd Respondent was highlighted, to the effect that he tendered Exhibit 46 without any Educational Certificate attached to it and was said to have stated that none was submitted by the 1st Respondent as against the alleged claim of the 1st and 3rd Respondents that the 1st Respondent submitted qualifying certificates to her as shown in paragraphs 4 and 5 of the 1st Respondent’s Reply, page 264 of the records of proceedings and paragraphs 6 and 7 (page 155 of the printed records), page 21 of the Appellant’s brief.
It was the submission of the learned counsel that the 3rd Respondent ought to have custody of the certificates and produce same. Also, that the 1st Respondent asserted in the affirmative that he has the certificates listed in paragraph 4 of his reply and should produce same.
The Tribunal’s finding on the evidence of the PW40 was highlighted, regarding Exhibit 46 to the effect that no certificate was presented or submitted to the 3rd Respondent. It was argued that the tribunal ought to have held that the 1s Respondent did not possess the minimum Educational Requirement, Further, that the purported submission would have determined or been a guide as to whether the 1st Respondent met the minimum requirement or not.
It was also argued that the 1st Respondent’s witness DW35 Idowu Olayinka Aborisade through whom Exhibits 168-173 were tendered, that these Exhibits were not pleaded nor front loaded, therefore, that the documents are at variance with the pleadings and go to no issue and ought to be expunged. See, UKPO VS. NGAJI (SUPRA). We were urged to discountenance the evidence of DW35 and Exhibits 168-173. In alternative argument should the court over rule the learned counsel’s argument on this, we were urged to treat the evidence of the DW35 as hearsay which the court cannot rely on, see CHIMA EJIOFOR VS. STATE 6 NSCQR PT.1, PAGE 209 at 236, also FLASH ODDS LTD VS. AKATUGBA (2001) 9 NWLR (PT.717) 46 at 63.
It was the contention of the learned counsel that the 1st Respondent’s failure to produce the certificate or its equivalent is fatal to the case of the 1st Respondent and that the Tribunal ought to have so held. We were urged to hold that the 1st Respondent was not educationally qualified.
The appellant’s last and fifth issue challenged the evaluation of evidence by the Tribunal. The parameter for weighing evidence on both sides as laid down by the Apex court in the case of ODOFIN VS. MOGAJI (1978) 4SC 91 at 94 was reviewed. It was the contention of the learned counsel that the Tribunal failed to follow the laid down principles in Odofin’s case and alleged that legal authorities were relied upon by the tribunal without considering or weighing the evidence led. It was argued that the Tribunal did not utilize the direct oral evidence before it but, rather concentrated on documentary evidence which was said to be improper, see ARABAMBI VS. ADVANCE IND. LTD. (2006) AFWLR (PT.295), PAGE 581 PP. 602 E-G AYANWALE VS. ATANDA (1988) 1 NWLR (PT.735) PAGE 47, and OMOBORIOWO vs. AJASIN (1984) 1 SCNLR 108.
We were urged to hold that the petitioner’s evidence outweighed that of the Respondents and allow the appeal.
In response, should the preliminary objections raised be over ruled, the learned counsel to the 1st-2nd Respondents W.A. Olajide Esq. and the learned counsel to the 3rd Respondent Kunle Faokunla Esq. each in their respective briefs adopted the issues as formulated by the appellant even though the learned counsel to the 3rd Respondent rephrased same. The arguments proffered were also similar, and would be referred to as the argument of the respondents.
Learned counsel to the respondents adopted and relied on their respective briefs in arguing the appeal. In response to the Appellant’s first issue, it was submitted by counsel to the two sets of respondents that the security organizations whose personnel though unnamed were alleged to have committed various acts which bordered on crime, such as harassment, intimidation, terror, violence e.t.c., ought to have been made necessary parties so as to give them an opportunity to answer to the allegations made against them. It was argued that their non-joinder rendered the paragraphs containing the allegations against these soldiers non-justiceable and liable to be struck out. Reliance was placed on the cases of BUHARI VS. OBASANJO (2005) 19 WRN PAGE 1 at 187 PARAGRAPH 30 PAGE 191 PARAGRAPHS 15-25 AND PAGES 199-200 PARAS. G-F; OLAFEMI VS. AYO (2010) AFWLR (PT.526) and IHO VS. WOMBO (2011) ALL FWLR (PT.591) PAGE 1514 at PAGE 1535 PARAS D-E.
It was submitted that the Tribunal was right to have struck out the affected paragraphs, as doing otherwise would affect the clear provisions of Section 36(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria.
On the Appellant’s issue two, the learned counsel to the respondents submitted that no over voting was established contrary to the submissions of the learned counsel to the Appellant who used tabulations and/or chart to demonstrate that there was over voting. It was argued that there was no such demonstration to this effect before the tribunal and therefore cannot rightly be done at this stage. The case of OSUNBOR VS. OSHIOMOLE (SUPRA) was distinguished in that the use of tabulation by the tribunal was challenged. Also, relied upon was the case of ADEGBUYI VS. MUSTAPHA (2010) ALL FWLR (PT.532) PG, 1753 at PAGES 1798-1799 PARAS. H-C.
It was the contention of learned counsel to the respondents that the Appellant as petitioner did not relate the chart to any part of its pleadings and that the documents relied upon were signed by its agents as being correct. Reference was made to the case of ZEIN VS. GEIDAM (2004) ALL FWLR (PT.237) PAGE 457 at PAGE 481 PARA G. Further, it was argued that over-voting cannot be proved solely by Form ECBA (i), see, LAWAL VS. MAGAJI (2010) 8 WRN 102 at PAGE 175 LINES 5-20, In this case no register of registered voters was tendered by the petitioner; reference was made to the definition of over-voting in the Electoral Act, 2010 (as amended) as provided for by Section 53(1). Also, see DEBA VS. ZAGI & ORS. (1999) 5 NWLR (PT.601) 114, It was argued that not only voters in the queue are allowed to vote as those who did not queue could also vote, therefore that over-voting cannot be established if the number of votes cast exceeds the number of voters on the queue at the commencement of the election, see, RIMDAM vs. LAR (1999) 9 NWLR (PT.620) 614 at PAGES 628-630.
Further, it was submitted that the evidence of PW41 called by the petitioner explained the discrepancies or over balloting if at all complained about by the Appellant, page 1160 of the printed records was referred to that is the holding of the Tribunal in this regard. See, at OJUKWU VS. ONWUDIWE (1984) SC NLR PAGE 247 at 259 PARA H.
On the Appellant’s third issue, it was argued by the respondents’ counsel that even though rules of court are meant to be obeyed, noncompliance with the rules of procedure or practice is a mere irregularity and not a nullity as it does not go to the root of the case, see MKPOT VS. PIKK (NIG) LTD. (2004) ALL FWLR (PT.236) PG.287 at PAGE 303.
It was also argued that the DW35 was a subpoenaed witness on the order of the court and therefore did not need to front load the witness’ statement on oath. Further, that the petitioner suffered no injustice as he cross examined the witness, the DW35 and utilized the Exhibits tendered on the issue of disqualification raised by the petitioner/reliance was placed on the cases of OLANIYAN VS. OYEWOLE (2008) ALL FWLR (PT. 399) PAGE 503 at PAGE 523-PAGE 524, PARAGRAPHS F-A; LASUN VS. AWOYEMI (2011) ALL FWLR (PT.577) PAGE 713 at 746 C – F, 747 PARAS. D – E and PATIGI L. G. VS. ELESIN-NLA (2008) 41 WRN PAGE 68 at 85 PARA, 30. It was argued that a party who concedes to an irregular procedure and suffered no injustice cannot complain on appeal that the wrong procedure was adopted where the procedure is neither unconstitutional nor irregular. The petitioner was said to have utilized the evidence of the witness (DW35) on the issue of qualification raised by the petitioner/for the tribunal to determine whether the petitioner possessed the minimum qualification or not. We were urged to hold that the tribunal was right in relying on the evidence of DW35 and Exhibits 169, 170, 171, 172 and 173 respectively.
On the fourth issue, the 1st Respondent denied the appellant’s allegation that he was not qualified to contest the election under reference. In proof of his allegation, the appellant called PW39 Barrister Lawal Adi, the Head of the Legal Unit, Registry Department, Kwara State polytechnic, Ilorin who represented the Registrar of the Polytechnic. His evidence was highlighted at pages 710-711 and 746-758 of the printed records. The evidence of the PW39 was to the effect that the 1st Respondent has Secondary School Certificate and qualified for admission into Kwara State Polytechnic and gave evidence that the 1st Respondent graduated from the Polytechnic in 1994/95 session. The matriculation number of the 1s Respondent was given by the witness as 576634. Counsel to the respondents also highlighted the evidence of the PW40, Barrister Nnamdi Nwaeze, who testified on behalf of the petitioner and tendered Exhibit 46 containing the personal particulars of the 1st Respondent, where the educational qualifications were listed. It was submitted that the PW40 confirmed that there is no provision that copies of the educational certificates be attached. Further, that a subpoenaed witness, DW35 the current principal of Keshi Community Grammar School, Keshi, Irepo L.G.A, Oyo State also confirmed that the 1st Respondent attended Secondary School, therefore educated up to the required level as stipulated in the Constitution. It was submitted that the 1st Respondent satisfied the requirement as provided in Section 65(1) (b) and z(a) of the 1999 Constitution (as amended), reliance was placed on the following cases, BAYO VS. NJIDA (2004) 8 NWLR (PT.876) 544, (2005) 4 NWLR (PT.914) 10; IMAM VS. SHERIFF (2005) 4 NWLR (PT.914) 43 and ALLIANCE FOR DEMOCRACY VS. FAYOSE (2004) AFWLR (PT, 222) 1719 at 1746.
It was the submission of the learned counsel to the respondents that the 1st Respondent is educationally qualified to contest the election under reference and that the Tribunal was right to have held so. We were urged to resolve issue four against the appellant.
On the fifth issue, the learned counsel to the respondents submitted that the Appellant’s contention that the tribunal did not evaluate evidence was not justified. It was submitted that the crux of the appellant’s petition is the alleged over-voting amongst other allegations that resulted in disenfranchisement occasioned by the alleged actions of soldiers. The burden of proof was argued to be on the appellant, who failed to discharge such burden as provided in Section 139, Evidence Act, 2011, See IKPATT VS. IYOHO (1999) 7 NWLR (PT. 609) PAGE 58 at PAGE 66 and AGODA VS. ENAMUOTOR (1999) 8 NWLR (PT.515) PAGE 407 at PAGE 419. It was submitted that the appellant failed to discharge the evidential burden necessary for it to prove all the allegations contained in its petition. We were urged to resolve this issue against the appellant.
In reply to the arguments of the learned counsel to the respondents, it was submitted that there is no where the appellant made any claim against the soldiers to warrant or necessitate them to defend any action against them or for the court to take any decision against them that would affect their rights for Section 36 of the 1999 Constitution of the Federal Republic of Nigeria to apply.
Further, that the main reliefs were not directed at the soldiers but rather, to the knowledge of the 3rd Respondent the 1st and 2nd Respondents used the soldiers to their advantage contrary to the Electoral Act, to intimidate the Appellant’s supporters. On the other hand, it was argued that the allegations of crime ought to have been severed as is permitted in civil matters. It was re-argued that Form EC8A (1) was enough to authenticate or confirm the over-voting alleged and that the voters register was not a necessity. We were urged to expunge the testimony of the PW35 and the Exhibits tendered through her, see AKINDURO vs. ALAYA (2007) ALL FWLR (PT.381) 1653 at 1673. We were urged to allow the appeal.
I would first resolve the preliminary objections raised by the respondents and then look into the substantive appeal if need be.
I deliberately set out in full the preliminary objections and the grounds upon which the objections were raised by the 1st and 2nd Respondents, and 3rd Respondents respectively to show that the objections are similar except ground (iii) in the 3rd Respondent’s objection arguing that the grounds alleging error of law did not quote the passage of the judgment where the errors were alleged to have occurred which was not contained in that of the 1st and 2nd Respondents’ preliminary objection.
It is also noteworthy that the contents of the appellant’s reply to the 1st and 2nd respondents’ argument in their preliminary objection and substantive appeal and that of the reply to the arguments of the 3rd respondent are similar.
On the face of the reply brief dated and filed on 5th October, 2012 by the Appellant, it is clear that the appellant admitted being served with the 1st and 2nd Respondents’ brief dated and filed on 28th September, 2012 on 2nd October, 2012. Therefore, by filing his reply on 5th October, 2012, it was filed out of time. It is trite that the court could suo-motu discountenance any process filed outside the stipulated time which is not regularized even if an objection has not been raised as to the utilization of such process. I am of the humble but firm view that by a mere look at the process and the date filed, the objection could and was rightly orally raised as to its validity. The court could suo-motu raise or question the competence of the reply brief in question or any process before it.
The learned counsel to the 1st and 2nd respondents rightly objected to the appellant’s reply brief to their objection, and main appeal same having been filed outside the stipulated time as provided in paragraph 13 of the court’s Practice Direction, same is discountenanced and hereby struck out for being incompetent.
On the other hand, it makes no difference whether the reply to the 1st and 2nd Respondents objection and brief of argument is done away with or retained as the contents are the same as that of the 3rd respondent except an additional ground for the objection. This leaves us with the reply to the preliminary objection and reply to the arguments of the 3rd respondent in the substantive appeal which would be utilized in resolving the preliminary objection and reply on points of law.
I would resolve the issues raised in the objections as listed in the 3rd respondent’s brief.
In respect of ground 13 of the Notice of Appeal, the appellant conceded/agreed that it committed an error when it stated that issue 1 covers grounds 1, 2 and 3 instead of grounds 1, 2 and 13. The appellant prayed that it be allowed to abandon ground 3 of the Notice of Appeal as it bears no relevance with issue one, as no issue was formulated on it in the entire brief. Linking or identifying ground 13 of the Notice of Appeal with the issue distilled there from, that is issue 1 where it was argued and allowing the appellant to state that issue No. 1 covers grounds 1, 2, and 13 and striking out ground 13 of the Notice of Appeal, would be likened to urging us to allow it to amend its brief as well as the Notice of Appeal, at this stage, here and now, which I am afraid we cannot do. The case of AKINLAGUN VS. OSHOBOJA (2006) (SUPRA) relied upon by the appellant can be distinguished from the present case in that no issue was formulated at all from ground 13 and not that a ground was not stated to be tied to an issue as in that case.
In this case, it is clear that no issue was formulated from ground 13 of the Notice of Appeal. In a recent (unreported) decision of this court in CA/AE/86/2010 CHIEF IBIDAPO AWOJOLU VS. CHIEF J. A. ODEYEMI & 4 ORS delivered on 5th June, 2012 in a similar situation I did hold that:
“It is trite that a ground of appeal from which an issue is not formulated is deemed abandoned and liable to be struck out. In the case of ONUOHA VS. NWABUEZE (2001) WRN 84 at 91, His Lordship, Ogebe, JCA (as he then was) held that:
“It is trite law where an issue is not formulated from a ground of appeal the ground of appeal is deemed to have been abandoned………
see, PACERS MULTI-DYNAMIC LTD. vs. MV. DUNANG SISTERS (2003) 3 NWLR (PT. 648) 241”.
See, also SPARKLING BREWERIES LTD VS. UBN LTD (2001) and SOGUNRO VS. YEKU (2003) 12 NWLR (PT.835) PAGE 644 at 661 E-F, 663-664 H-B.
In the circumstance, the objection in this respect is sustained; Ground 13 is incompetent and is hereby struck out.
In respect of grounds 3 and 10, these grounds have their particulars which serve the purpose of explaining or elaborating on the grounds, in this case the alleged misdirection and errors of law. Where the ground is clear neither misleading nor ambiguous and discloses a reasonable ground of appeal and gives the respondent an idea of what the complaint is, the ground is competent. The respondents have not argued that the contents of grounds 3 and 10 are vague and not understood, The Apex Court in HAMBE VS. HUEZE (2001) FWLR (PT.42) 1 at 16 PARAGRAPH C-E, G-H concerning a ground where a misdirection and error of law were alleged held thus:
“A ground of appeal alleging error in law and misdirection as facts is not thereby incompetent if it otherwise complies with the rules of court requiring that a ground of appeal be not vague or general in terms (save what is known generally as the omnibus ground) and disclosed a reasonable ground of appeal such that the respondent is given sufficient notice of the precise nature of the appellant’s complaint.”
See, also ALHAJI ABDULRAHMAN AKANBI VS. MALLAM WASIU SALAWU & ORS (2003) 6 SCNJ 246 at 254; M.D.P.D.T. VS. OKONKWO (2001) 7 NWLR (PT.711) 206, (2001) FWLR (PT.44) 542, and BADAU VS. INEC (2008) ALL FWLR (PT.435) 1794 at 1817. At worse, one could term it inelegant drafting and in the interest of justice utilize or entertain the inelegantly drafted ground of appeal. See, also DAKOLO VS. DAKOLO (2011) 7 SCM PAGE 54 at 75.
The objection in respect of grounds 3 and 10 is overruled and same is struck out.
In respect of not reproducing in the judgment of the Tribunal where the alleged error in law occurred, the appellant adopted the argument in respect of grounds 3 and 10, I agree with the learned counsel to the appellant that the respondents were not misled by the grounds (in terms of the particulars) which clearly stated what the complaint is, and further elaborated by the particulars. The objection to grounds 1, 2, 4, 5, 6, 7, 8, 9, 12, 13, 14 and 15 is over ruled and struck out.
On proliferation of issues in respect of grounds 8 and 9 and issues 2 and 3, the appellant had argued that the error was typographical, for this reason urged this court to remove the error by juggling the issues, that is to remove the error under issue No.3 and retain same in issue No.2 after conceding that grounds 8 and 9 featured in issues 2 and 3 of the brief of the appellant which is not in doubt.
The alternative argument was that proliferation is not enough to render the issues incompetent.
It is the law that one issue can be formulated from two or more grounds of appeal but two issues cannot be formulated from one ground, it is proliferation of issues which ought to be discouraged. In this case two issues have been formulated from each of grounds 8 and 9, in issues two and three.
The essence of issues for determination is amongst others, to enable the parties narrow down issues raised in the ground(s) of appeal not to widen or stretch the scope of issues for determination and invariably arguments.
Contrary to the argument of the appellant, it is enough to render the issues so formulated incompetent and has indeed done so. It cannot be viewed as technical as the appellant urged us to hold.
In LABIYI VS. ANRETIOLA (1992) 8 NWLR (PT. 258) 139 at 159 where KARIBI WHYTE, JSC (as he then was) held concerning proliferation of issues thus:-
“The court has always frowned at and viewed with disfavour the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of issues for determination into a single issue running through them. It is patently undesirable to split the issue in a ground of appeal.”
The objection on proliferation is sustained. In consequence, the appellant’s issues two and three are incompetent, they are discountenanced, same are struck out with the arguments in their support. This leaves us with issues one, four and five for resolution. It is clear that the contention of the appellant is that various security organizations through their personnel committed various acts, which were criminal in nature, consisting of over balloting, allotment of votes, multiple voting, multiple thumb printing harassment, intimidation, terror, violence, disenfranchisement amongst others, as contained in paragraphs 7 (iii) – (xxvi), 8, 9, 10, 14 and 16 of the petition, Pages 928-932 of the printed records. By virtue of the provisions of Sections 128, 129, 130 and 131 of the Electoral Act (2010) (as amended), these allegations against the soldiers are criminal in nature.
By virtue of the provisions of Section 36 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria the soldiers ought to be joined as necessary parties to the petition, this would give them the opportunity of knowing and defending the allegations levied against them. Their non-joinder renders the paragraphs containing the allegations against the soldiers not justiceable since the soldiers can not be “tried” so as to say, behind their backs without an opportunity of knowing the allegations against them to talk of a defence or an explanation. Worse still, the particular soldiers were unnamed. A decision could not rightly have been taken against them without making them parties. I did not see anywhere in the printed records where these soldiers that were said to have marred the election were named by the witnesses to the appellant. In the popular case of BUHARI VS. OBASANJO (2005) 19 WRN PAGE 1 at 187, PARA. 30 and PAGE 191 PARAGRAPHS 15-24, the court made it clear that military officers who were alleged to have carried out the shooting during election not having been made parties, makes the court or Tribunal incompetent to inquire and pronounce on same. It is when the soldiers in this case are made parties that it could be established (or otherwise) that the respondents were aware or authorized their activities.
In this case where the identity of the soldiers was not known or named, joining them as parties would be impossible, to explain or defend their alleged conduct.
The appellant had argued that evidence was led to the effect that the security officers were used by the 1st and 2nd respondents for the acts of violence, intimidation and threats to the electorates. In this case where the officers were not named or joined, how would the facts be ascerained? It would not be possible. In NWAKANMA VS. ABARIBE (2010) ALL FWLR 1767 at 1798 this court held in this respect that:
Where a party is pleaded but not joined, the case against him is abandoned and the paragraphs of the pleading raising allegations against him ought rightly to be struck. This proposition finds its confirmation from the decision of the Supreme Court in EGOLUM VS. OBASANJO where it affirmed the decision of the Court of Appeal striking out paragraphs of the petition because of non joinder of electoral officials unpleaded therein. The Tribunal rightly struck out all the paragraphs of the petition on the basis of which the spurious and fabricated results were tendered as exhibits K-P and S-W series. These exhibits were not properly before the tribunal to merit any consideration, evaluation on attachment of weight,”
Similarly, it was held in UDE VS. OSUJI (1990) 5 NWLR (PT.151) 488 at 512 thus:
“Failure on his part to join a party he has pleaded however shows abandonment of his case in so far as that party is concerned and a manifestation of frivolous, vexations confused or misconceived piece of legal drafting.”
The security organization whose unnamed personnel were said to have committed various acts were necessary parties, having not been made parties to the petition, no evidence ought to be led against them and, if any evidence was led, such evidence ought to be struck out.
In this case the Tribunal was therefore right in striking out the affected paragraphs relating to the security organization, same is hereby affirmed. The first issue is resolved against the Appellant.
In the fourth issue, the appellant contended that the 1st Respondent did not qualify to contest the election under reference which the 1st Respondent denied. S. 65 (1) (b) and 2(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) laid down the educational requirement for election into the National Assembly, sub section 2 (a) provides as follows:-
2(a) “A person shall be qualified for election under subsection (1) of this section if:
(a) He has been educated up to at least school certificate level or its equivalent.”
It is trite, and in accordance with our law, (Evidence Act 2011 Sections 131 and 132) that it is the duty of he who asserts to prove what he asserts. The appellant in proof that the 1st respondent was not qualified to contest the election called PW39 who stood in for the Registrar, Kwara State Polytechnic, Ilorin (hereafter referred to as the polytechnic) gave evidence to the effect that the 1st Respondent has Secondary School Certificate, based on which he was admitted into the polytechnic for a post Secondary School Study, pages 710-711, 746-758 of the printed records. The witness admitted that the 1st Respondent graduated from the Polytechnic in 1994-1995. The witness gave the matriculation number of the 1st respondent as 576634, which was not faulted. Exhibits 139 and 140 were tendered through this witness.
The PW40 who testified at pages 712 to 713 was also called by the Appellant tender Exhibit 46 which contained a list of the 1st Respondent’s particulars, made it clear that there is no provision for copies of the educational certificate to be attached to Exhibit 46. S.65 (2)(a) of the 1999 Constitution only states in clear terms, “education up to at least School Certificate level or its equivalent.”
A subpoenaed witness, the DW35, the present principal of Keshi Community Grammar School, Keshi tendered Exhibit 169 and 169A, their Admissions Register in which the 1st respondents serial number 2012 appeared and had his name contained therein, Exhibit 170, continuous Assessment report with the 1st Respondent’s name, Exhibit 171, a certified copy of the class Register, a certified true copy of the WAEC result for the year 1991 and statement of result of the 1st Respondent, serial Number 52, Exhibit 172 and Exhibit 173 where the 1st respondent signed for and collected his WAEC result, all these were confirmed by the DW35.
From the clear words of the constitutional provision, it did not require or state that an aspirant or candidate to the House of Representatives as in this case must pass or possess a certificate. The important thing is to have been educated up to Secondary School level or the equivalent, passing the Senior Secondary School Certificate examination and obtaining a certificate cannot be read into Section 6 (2)(a) of the 1999 Constitution as amended.
What is required under the law is that there must be evidence that a candidate is educated up to the required level and not that he must or should produce a certificate to prove the level of education attained. See, BAYO VS. NJIDA (2004) 8 NWLR (PT. 876) 544; (2005) 4 NWLR (PT. 914) 10, AREBI GBABIJO (2008) 49 WRN 29 and IMAM VS. SHERIFF (2005) 4 NWLR (PT.914) 43.
Once there is evidence of the education of the candidate up to Secondary School level, it is enough; certificate was not specified in subsection 2(a) above. There was over whelming evidence before the tribunal that the 1st Respondent was educationally qualified to contest the election and the Tribunal was right to have held so. The fourth issue is resolved against the Appellant.
The fifth and last issue is on the evaluation of evidence. It is trite that the burden of proof is initially on the plaintiff, in this case the Appellant as petitioner to prove his case, S.139 of the Evidence Act 2011. It is when such burden is discharged that it shifts to the defendant or Respondent whatever the case may be.
It was up to the appellant to prove the allegations of over voting and all other alleged electoral malpractices and non-compliance with the Electoral Act, he who alleges proves, see IKPATT VS. IYOHO (SUPRA). The petitioner still has the hurdle, after such proof to show that the alleged non compliance and/or malpractices affected the overall result, for instance where disenfranchisement is alleged. Such acts have to be linked with the respondents, which the appellant failed to do.
In the present case, could it be said that the appellant proved his case? The appellant stressed on over-voting and relied heavily on Forms EC8(A) (i) result sheets which are not enough to prove over voting and other anomalies complained about in the results. The position of the law has recently been clearly re-stated in recent decisions of this Court and Division to show that allegations in forms or result sheets are not enough. The register of voters of the Polling Units that have been faulted by the Appellant would clearly show the number of registered voters, in the units and wards complained about as against those that actually voted, to prove over-voting and disenfranchised voters. In the consolidated cases of CA/I/EPT/OG/LH/33/11, CA/I/EPT/OG/LH/34/11, CA/I/EPT/OG/LH/35/11 and CA/I/EPT/OG/LH/36/11 People Democratic Party & Anor v. Independent National Electoral Commission (INEC) and 2 Ors delivered on 24th February, 2012 (unreported) my Learned brother, Ikeyegh, JCA held in a similar situation thus:-
“The voters register of the polling unit must also be put in evidence to establish that the voters allegedly disenfranchised are registered voters in the unit and, evidence of their registration in the polling unit must be proved by the tendering in evidence of their voter’s cards and evidence that they presented themselves to vote in their polling units at the election, but were denied the right to vote by non-accreditation or non ticking of their names in the voters’ register of the unit; while allegation of over voting would be determined by checking the number of registered voters in the voter’s register of the polling unit against the number of voters that voted in the unit to show the latter was in excess of the former'”
In the present case, the voters register of the units and wards complained of were not tendered in evidence. The allegedly disenfranchised voters were not called to testify in proof of the allegations. See, also another decision of this Court and Division delivered on 5th January, 2011 in appeal No.CA/I/EPT/OG/GOV/21/2011, Peoples Democratic Party vs. INEC and others (unreported). Thus, over voting which is the main thrust of the appellant’s case before the Tribunal, was not proved in absence of the voters register.
The evidence of PW41 and DW38 explained discrepancies that could occur as a result of ballot paper booklets containing more or less than 100 leaflets they are supposed to contain.
In respect of the over voting still, in LAWAL VS. MAGAJI (2010) 8 WRN 102 at PAGE 176 LINES 5-20 the court held that:
“In order to prove over-voting, a party is required to place before the tribunal the register of registered voters. This is to show that the votes cast at the election exceeded the number of registered voters.”
No evidence was led to show that in the units that were faulted, votes exceeded the number of accredited voters. Similarly, multiple voting and/or thumb printing was not proved as pleaded. The petitioner failed to prove the allegations in his petition. The Tribunal was therefore right to have dismissed the petition. The appellant’s fifth issue is resolved against him.
In the final analysis, the appeal lacks merit and is dismissed. The decision of the Tribunal of 16th August, 2012 is hereby affirmed. I award costs of N30,000.00 (Thirty thousand Naira) against the Appellant, in favour of the 1st Respondent.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
Appearances
Kazeem A. Gbadamosi Esq, with Bolaji Agoro Esq., Fadare A. Yakubu Esq., Oyelakin Oyedokun Esq., B. D. Philips Esq,, Lateef O. Yusuf Esq., I. A. Kareem-Ojo Esq. For Appellant
AND
W. A. Olajide Esq. with T. B. Oyekanmi (Mrs), Titilayo Malaolu (Miss) for the 1st and 2nd Respondents.
Kolawole Orejimi Esq. holding the brief of Kunle Faokunla Esq. for the 3rd Respondent. For Respondent
