BUSOLA OYEBODE & ANOR v. OGUNDELE GABRIEL & ORS
(2011)LCN/5009(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of December, 2011
CA/EPT/EK/3/2011
RATIO
NOTICE OF PRELIMINARY OBJECTION: EFFECT OF A NOTICE OF PRELIMINARY OBJECTION WHEN UPHELD
A Notice of Preliminary Objection undoubtedly is an application made to the court, which when heard and upheld could act as a restraint to a continuation of the proceedings. PER TOM SHAIBU YAKUBU, J.C.A.
NOTICE OF PRELIMINARY OBJECTION: HOW A NOTICE OF PRELIMINARY OBJECTION IS TO BE RAISED IN A BRIEF OF ARGUMENT
Furthermore, where a Notice of Preliminary Objection is to be raised in a Brief of Argument, it must be under a conspicuous title of “PRELIMINARY OBJECTION” followed by grounds for the objection and supported with a Written Address. See: Chief Emmanuel Osita Ekereke Vs. Alhaji Umaru Musa Yar’Adua & Ors. (2008) 5 SCNJ 1 and Charles Chikwendu Odedo Vs. Independent National Electoral Commission (2008) 7 SCNJ 1 at p.25. PER TOM SHAIBU YAKUBU, J.C.A.
NON-COMPLIANCE: EFFECT OF NON-COMPLIANCE BY A PETITIONER WITH PARAGRAPH 18(1) OF THE FIRST SCHEDULE TO THE ELECTORAL (AMENDMENT) ACT NO.6 OF 2010
In the most recent decision of the Supreme Court on the effect of a non-compliance by a petitioner with paragraph 18(1) of the First Schedule to the Electoral (Amendment) Act No.6 of 2010, in the unreported suit No. SC.350/2011 between Mallam Abubakar Abubakar & 2 Ors, Vs. Saidu Usman Nasamu & 3 Ors. Of 9th November, 2011, his Lordship, TABAI, JSC, had this to say: “The challenge here is non-compliance with paragraph 18(1) of the First schedule to the Electoral Act. Where a plaintiff in a procedural step necessary for the successful prosecution of the claim or petition, his act or omission constituting such failure or default does not affect the jurisdiction of the court. It only constitutes a failure to prosecute the claim and which failure attracts a dismissal”. PER TOM SHAIBU YAKUBU, J.C.A.
GROUND OF APPEAL: WHETHER WHERE A RESPONDENT WANTS AN IMPROVEMENT ON THE QUALITY OF A JUDGMENT THE FRESH ISSUE MUST RELATE TO THE APPELLANTS’ GROUND OF APPEAL; EFFECT OF AN ISSUE NOT FORMULATED FROM OR GROUNDED ON A GROUND OF APPEAL
The law, generally, is that it is the responsibility of the respondent who has gotten a judgment in his favour to defend it, but where it wants an improvement on the quality of that judgment or that it be affirmed on other grounds, the fresh issue must relate to the appellants’ ground of appeal. See Dibiamaka Vs. Osakwe (1989) 1989) 3 NWLR (pt.107) 101 ; Onifade Vs. Olayiwola (1990) 7 NWLR (pt.161) 130. And any issue which is not formulated from or grounded on a ground of appeal is incompetent and liable to be struck out See: Bank of the North Ltd. Vs. Na Bature (1994) 1 NWLR (pt.319) 235: Khaled Chami Vs. UBA Plc (2010) 2 SCNJ 23 at p.36. PER TOM SHAIBU YAKUBU, J.C.A.
BURDEN OF PROOF: DUTY OF A PETITIONER WHERE HE MAKES AN ALLEGATION OF CRIME IN AN ELECTION PETITION
However, the submission by Mr. Ajayi does not represent the law. See Nwobodo v. Onoh (1984) SCNLR 17 where the Supreme Court succinctly put the issue beyond argument that, “While in an election petition the petitioner makes an allegation of a crime against a respondent and made the commission of crime as the basis of his petition, the sub-section imposes strict burden on the petitioner to prove the crime beyond reasonable doubt.” Following Nwobodo Vs. Onoh, Supra, this Court in Kalu v. Uzor (2006) 8 NWLR (pt.981) 68 at PP.87 – 88 held that: “Where generally corrupt practices or offence is alleged in an election to invalidate the election, the petitioner must prove the alleged practice or offence in addition to the following: (a) That the 1st Respondent personally committed the alleged crime or aided or abetted the commission of the alleged corrupt practice or offence. (b) That where the alleged act was committed through an agent, the said agent was authorized by the 1st Respondent. (c) That the alleged corrupt practice or offences affected the outcome of the election and how it affected it. (d) That but for the corrupt practices or offence, the petitioner would have won the election.” And in Ajadi v. Ajibola (2004) 18 NWLR (pt.898) 91 at PP.163-164 this court reiterated the same view that: “Where there is a complaint about violence or thuggery in an election petition, a nexus must be established between the perpetrators and the Respondents by credible evidence. It must also be shown that the act adversely affected the conduct of the election and further that the act substantially affect the result of the election”. PER TOM SHAIBU YAKUBU, J.C.A.
PLEADINGS: WHETHER AVERMENTS IN PLEADINGS MUST BE PROVED
It is also settled that averments in pleadings must be proved as they are not synonymous with evidence. Just see: Akinfosile vs Ijose (1960) 5 FSC 122: Nzeribe Vs Dave Engineering Co. Ltd. (1994) 9 SCNJ 161 at p.172; Egbunike v. ACB (1995) 2 SCNJ 58. PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. BUSOLA OYEBODE
2. LABOUR PARTY (LP) Appellant(s)
AND
1. OGUNDELE GABRIEL
2. ACTION CONGRESS OF NIGERIA (ACN)
3. KOLAWOLE ALABI
4. PEOPLES DEMOCRATIC PARTY (PDP)
5. MR. R. O. ADEBIYI
(The returning Officer of Ekiti State House of Assembly Election for Efon Constituency)
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
7. THE NIGERIAN POLICE FORCE Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): On 17th November, 2011, I dismissed this appeal and pursuant to section 9(8) of the second Alteration No.2 of 2010 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended), reserved the reasons therefore to a future date. The said reasons are hereby given.
The National and House of Assembly Election Petitions Tribunal sitting at Ado-Ekiti on 21st September, 2011 upheld the election of the 1st Respondent as the member representing Efon Constituency at the Ekiti State House of Assembly, in the general elections of 26th April, 2011. The Appellants’ petition against the aforementioned election was dismissed. The petitioners/appellants not being satisfied with the judgment of the lower tribunal, appealed to this Court. The appeal was erected on six (6) grounds of appeal. For ease of reference and appreciation, the said grounds of appeal, are reproduced hereunder, to wit:
“GROUNDS OF THE APPEAL
1. GROUND ONE
The learned Justices of the trial Tribunal erred in law and misdirected themselves as to facts when they failed to nullify the election and order a re-run into Efon House of Assembly Constituency having regard to the avalanche of believable oral and documentary evidence tendered by the appellants on the massive substantial non-compliance with the provisions of the Electoral Act, 2010 as amended.
i. There were evidence of non-compliance with the provisions of the Electoral Act led at the trial.
ii. Appellants led unrebutted credible evidence on non-accreditation and other Electoral malpractices in most of the polling units where the election was conducted’.
iii. The purported form EC8As in many of the polling units were falsified.
iv. The testimonies of the witnesses for the appellants on substantial non-compliance were without any credible rebuttal from the Respondents.
2. GROUND-TWO
The learned Justices of the lower Tribunal erred in law and misdirected themselves as to the facts of the case when it held thus;
“Furthermore, as no evidence was led on the documentary evidence tendered before the court, as regards the allegation of non-compliance with the provisions of the Electoral Act, 2010, the submission of the learned counsel to the 1st and 2nd Respondents that the said documents were simply “dumped” on the tribunal is not only meritorious but unassailable”
PARTICULARS
i. The documents were pleaded.
ii. They were tendered and admitted in evidence by consent of parties.
iii. The Appellants witnesses made references to the documents in their written statements on oath which were tendered and admitted in evidence.
iv. Having tendered and admitted the documents in evidence the court is entitled to look into their probative value and not just treat them as “dumped” documents.
3. GROUND THREE
The learned Justices of the lower Tribunal misdirected themselves on the facts of this case in holding as follows.
“Upon evaluation of the testimony of the witnesses, it is evident that the testimony of several of them were not only fraught with contradictions and inconsistencies, but sometimes simply unbelievable and untruthful”
The Review of the testimonies of the witnesses was not based on a balanced scale. It was merely done in favour of the Respondents.
ii. The testimonies of the witnesses of the Appellants were Credible, believable and entirely truthful.
iii. The testimonies of the Appellants witnesses were collaborative and not fraught with contradictions and inconsistencies.
GROUND FOUR
The learned Justices of the Lower Tribunal misdirected themselves on the facts of this case in holding thus;
“The Tribunal finds that the Petitioners failed woefully to discharge the burden of proof placed on them to prove that electoral offences were committed by the 1st and 2nd Respondents. The documentary evidence of the 1st and 2nd Respondents’ victory in the House of Assembly Election in the Efon Constituency held on the 26th day of April, 2011, forms EC8C (1) and EC8E (1), Exhibits R11 and R12 respectively stands unchanged”
PARTICULARS
i. The Appellants proved on the balance of probabilities that there were substantial non-compliance with the provisions of the Electoral Act for the burden placed on them to be discharged.
ii. Exhibits R11 & R12 are not original copies and are fraught with countless manipulations.
iii. It is only INEC, the 6th now 4th Respondent that can present valid and credible election Results being the agency saddled with the responsibility of conducting elections.
iv. The testimonies of the Appellants witnesses directly liked the 1st and 2nd Respondents with the Electoral malpractices.
5. GROUND FIVE
The learned Justices of the lower Tribunal erred in law and misdirected themselves on the facts of this case in holding thus;
“This Honourable Tribunal having earlier found that no evidence whatsoever was led by the petitioners to prove the allegation of noncompliance with the provisions of the Electoral Act, 2010, it follows that the petitioners have not discharged the minimal burden of proof placed on them against the 5th, 6th and 7th Respondents, this aspect of the Petition must therefore also fail and is hereby dismissed”
PARTICULARS
Evidence of Electoral malpractices were clearly established against the 3rd, 4th & 5th Respondents.
ii. The 3rd, 4th & 5th Respondents admitted these facts by not filing entering appearances nor a Reply to the petition.
iii. It is only INEC, the 6th Respondent that can present valid and Credible Election Results which they failed to do hence admitting that the entire Election were not Credible as alleged by the Appellants.
6. GROUND SIX
The judgment is against the weight of evidence.”
The appellants, filed their Brief of Argument dated 20th October, 2010 on the same date and the same was adopted and relied upon at the hearing of the appeal, by learned counsel for them, Owoseni Ajayi, Esq., who relied on it as his submissions on the appeal.
The 1st and 2nd Respondents’ Brief of Argument, dated 25th October 2010 and settled by Niyi Idowu, Esq., of learned counsel, was filed on the same date. He adopted and relied upon the same at the hearing of the appeal as his submissions thereon. In response to the 1st and 2nd Respondents’ Brief of Argument, the Appellants filed a Reply Brief dated 31st October, 2011 on the same date. At the hearing of the appeal, it was adopted and relied upon by Owoseni Ajayi, Esq., of learned counsel to the Appellants.
A Brief of Argument at the instance of the 5th and 6th Respondents dated 25th October, 2011 was filed on the same date. The same, at the hearing of the appeal, was adopted and relied upon by Oso Adetunji, Esq., of learned counsel who settled it for them. Upon the receipt of the Brief of Argument settled by Oso Adetunji, Esq., for the 5th and 6th Respondents, the Appellants filed a Notice of Preliminary Objection on 31st October, 2011 challenging the appearance of Oso Adetunji, Esq., for the 5th and 6th Respondents.
The 1st and 2nd respondents, on 10th October, 2011, filed a Notice of Intention to contend that the judgment of the lower tribunal of 21st September, 2011 should be affirmed on grounds other than those relied upon by the said lower tribunal.
It is noteworthy that the names of the 3rd and 4th Respondents had been struck out as parties in the proceedings at the lower tribunal. And indeed, the Notice of Appeal fifed by the Appellants against the judgment of the lower tribunal, did not include the names of the 3rd and 4th Respondents. However, the Appellants erroneously in their Briefs of Argument, named the 3rd and 4th Respondents, as being parties to this appeal. The other sets of Respondents, in this appeal, perpetuated the same error in their respective Briefs of Argument, taking a cue from the Appellants’ Brief of Argument. At the hearing of the appeal and on the application of the learned counsel to the Appellants, the names of the 3rd and 4th Respondents were ordered as struck out from the appeal.
I shall first dispose off the preliminary issues in respect of this appeal, touching on the challenge to the appearance of Oso Adetunji, Esq., for the 5th and 6th Respondents and also the Notice by the 1st and 2nd respondents that the judgment of the lower tribunal be affirmed on other grounds than those relief upon by it, before a consideration and determination of the real kernel in the appeal.
The grounds for the objection of the Appellants against the appearance of Oso Adetunji, Esq., for the 5th and 6th Respondents are that:
“(1) Oso Adetunji Esq., was one of the counsel to the 1st & 2nd Respondents at the Lower Tribunal. See pages 410, 457, 499 and 504 of the Record of Proceedings.
(2) He has not been briefed by the 5th & 6th Respondents to appear for them.
(3) The self imposed Respondents brief on behalf of the 5th & 6th is sponsored by the 1st and 2nd Respondents for ill purpose.
(4) No fiat or letter of instruction to prosecute this case on behalf of a public institution.”
Arguing the Preliminary Objection in question, at paragraphs 6.00 to 6.04 of the Appellants’ Reply Brief of Argument, Mr. Owoseni Ajayi, submitted that the objection against the appearance of Oso Adetunji, Esq, for the 5th and 6th Respondents, was sequel to the receipt of the Brief of Argument settled by the said Oso Adetunji Esq., for the 5th and 6th Respondents and that it was inappropriate for Mr. Adetunji, who had actively participated as Counsel to the 1st and 2nd Respondents at the trial lower tribunal, at pages 419, 457, 499 and 504 of the Records of Appeal, to have turned round to act as counsel to the 5th and 6th Respondents, in this appeal. Mr. Ajayi, furthermore submitted that Mr. Oso Adetunji, being a private legal practitioner, needed the fiat or authorization of the 5th and 6th Respondents who are a public officer and a public institution respectively, for him to competently represent and act for them, in this appeal. He referred to PROVOST, LACOED VS. EDUN (2004) 6 NWLR ((Pt.870) 476 at PP 495 – 496 and urged us to hold that the appearance of Mr. Oso, Adetunji, as counsel to the 5th and 6th Respondents is inappropriate Oso Adetunji, Esq, at the hearing of the appeal, with leave of court sought and obtained, offered oral argument in his response in respect of the Preliminary Objection by the Appellants, challenging his appearance for the 5th and 6th Respondents. He firstly submitted that the Preliminary Objection is incompetent for its non-compliance with Section 145 of the Electoral (Amendment) Act, 2010 read together with paragraph 47(1) and 2 of the 1st Schedule to the Electoral (Amendment) Act, 2010. Furthermore, that since the Preliminary Objection was not supported with a Written Address; it is in violation of Order 17 Rule 5 of the Rules of this Court, 2011. Learned counsel also contended that the position or stance of 1st and 2nd Respondents’ case at the trial of the petition was the defence of the election in question and it is the same position he as counsel to the 5th and 6th Respondents is maintaining, in this appeal. He therefore urged us to strike out the Preliminary Objection for being incompetent.
In his oral reply, Mr. Ajayi submitted that Section 145 of the Electoral (Amendment) Act, 2010 relied urpon by Mr. Oso Adetunji is irrelevant and inapplicable to the Preliminary Objection and that the Appellants complied with Orders 10 and 17 (5) of the Rules of this Court, 2011.
I have perused Section 145 (1) of the Electoral (Amendment) Act No. 6 of 2010 along with paragraph 47 of the 1st Schedule to the said Electoral (Amendment) Act No 6 of 2010 and it is clear to me that they deal with motions and applications which may be made at the lower tribunal or in this court Paragraph 47(2) & (3) of the 1st schedule aforementioned, specifically provide for the making of an application “by motion which may be supported by affidavit” and that “every such application shall be accompanied by a Written Address in support of the reliefs sought”. A Notice of Preliminary Objection undoubtedly is an application made to the court, which when heard and upheld could act as a restraint to a continuation of the proceedings.And in the circumstances of this case, if the objection upon the application of the Appellants, is sustained, the appearance of Oso Adetunji, Esq, for the 5th and 6th Respondents, would be held as inappropriate and that would terminate his appearance for them and he would in consequence, cease from participating in the appeal for the 5th and 6th Respondents, if he could not show that he was retained or “engaged” by them to conduct the appeal for and on their behalf, they being a public officer and a public institution, respectively. See section 34 (1) of the Electoral (Amendment) Act No. 10 of 2010 and also Provost LACOED Vs Edun (supra) where the Supreme Court at pages 495 – 496 of the report said:
“A legal practitioner who is not in the employment of the ministry of Justice of a state, or not a private legal practitioner briefed to appear in a case, or has no fiat or authorization whether from the Attorney General of the State or from any other authorized Public Officer to appear in a case, cannot represent the State or any of its public officers in the service of the State sued in his public capacity, without a fiat, such a person can not appropriately appear for such public officers in the case”.
To my mind, upon the receipt of the 5th and 6th Respondents’ Brief of Argument, settled by Oso Adetunji, Esq, the appellants, in ventilating their objection against his appearance in this appeal, ought to have filed an application by way of a Motion on Notice supported with an affidavit and a Written Address in support of the application which would have been served on Oso Adetunji or the 5th and 6th Respondents for them to react to the Motion. This was not done by the Appellants and therefore the 5th and 6th Respondents and indeed, Oso Adetunji, were shut out in responding to the fact of whether or not the 5th and 6th Respondents “engaged” Oso Adetunji to conduct the appeal for them. That fact could only have been expressed vide an affidavit and not in a Brief of Argument or oral argument by counsel in court.
Furthermore, where a Notice of Preliminary Objection is to be raised in a Brief of Argument, it must be under a conspicuous title of “PRELIMINARY OBJECTION” followed by grounds for the objection and supported with a Written Address. See: Chief Emmanuel Osita Ekereke Vs. Alhaji Umaru Musa Yar’Adua & Ors. (2008) 5 SCNJ 1 and Charles Chikwendu Odedo Vs. Independent National Electoral Commission (2008) 7 SCNJ 1 at p.25.
I am unable to agree with Mr Owoseni Ajayi for the Appellants that the Preliminary Objection was pursuant to Orders 10 and 17(5) of the Rules of this Court, 2011. I agree with Mr. Oso Adetunji, that the Preliminary Objection is incompetent and the same is ordered as struck out.
The grounds upon which the 1st and 2nd Respondents predicated their notice of intention to contend that the judgment of the lower tribunal should be affirmed other than those relied upon thereof are:
“(a) That the Tribunal below had no jurisdiction to hear and determine the petition of the appellants for failure to file the prescribed application for prehearing session to wit: that application for prehearing session should be by notice of motion and not by letter as done by the appellants in this.
(b) Issue of jurisdiction is germane to the determination of any matter.
(c) Parties can not by consent or waiver confer jurisdiction on a court that has none.
(d) Issue of jurisdiction can be raised at any time even on appeal
(e) Filing of pre-hearing application is a jurisdictional matter in election petition.
(f) The appellants as petitioners failed to file the prehearing application in compliance with section 18 (1-5) first schedules to the Electoral Act 2010 (as amended).
(g) The petitioners/applicants only wrote a letter applying for pre-hearing session instead of doing same by the prescribed process”.
Mr. Niyi Idowu, learned counsel to the 1st and 2nd Respondents at paragraph 12.00 of his Brief of Argument indicated that the plank of the complaint in respect of the Respondents’ notice is in relation to the lack of jurisdiction of the lower tribunal to hear and determine the petition. He thereafter formulated a lone issue for determination to wit.
“Whether the proceedings in this petition has not been fundamentally violated by the failure of the petitioner to bring a proper application for pre-hearing in accordance with paragraphs 18 (1-10) and 47 (1 & 2) of the 1st schedule to the Electoral Act and having regards to such defeat (sic) (defect), whether the Tribunal had not been robbed of jurisdiction to adjudicate over the petition?
Arguing the issue, Mr. Idowu submitted that the filing of a pre-hearing application is a jurisdictional issue in election petitions by virtue of paragraph 18(1) (5) of the first schedule to the Electoral (Amendment) Act No.6 of 2010, the Petitioner was under a mandatory obligation to apply for the issuance of a Prehearing Notice before the commencement of a pre-hearing session. He submitted that the operative words “shall apply” used in paragraph 18(1) of the First Schedule to the Electoral (Amendment) Act No.6, 2010 carries a force of compulsion.
He referred to Ararume Vs, INEC (2007) 2007) 9 NWLR (Pt.1038) 127 at p.160; Achineku Vs. Ishola (1988) 4 NWLR (pt.89) 411 at p.420, Ahambele Vs. Imperial Medical Centre (2005) 5 NWLR (pt.917) 51 at p.61. Furthermore, it was the contention of Mr. Idowu, that by virtue of paragraph 47(2) of the First Schedule to the Electoral (Amendment) Act No.6 of 2010, any application, to be made under the Act shall be by Motion. He relied on Oju L.G. Vs. INEC (2007) 14 NWLR (P1.1064) 242 at pp.263 -264: Abiodun Vs. Federation (2002) 15 NWLR (Pt.1057) 359 at 396: Riruwa Vs. Shekarau (20081) 12 NWLR (Pt.1100) 142 at p.159.
Learned counsel also submitted that the non-compliance with the provisions of the Electoral Act, robbed the lower tribunal of the jurisdiction to entertain the petition and that rules of court are meant to be obeyed and observed. He relied on Edun Vs. Odan Community (1981) 8-11 SC 103 at p.127; William Vs. Hope Rising Voluntary Funds Society (1982) NSCC (Vol.13) 36.
He therefore urged us to hold that the petition was incompetent and so the lower tribunal ought not to have entertained it. He referred to Ali Vs. Osakwe (2009) 14 NWLR (Pt.1160) 75 at p.149; Goji Vs. PDP (2009) 14 NWLR (pt.1161) 310 at p.405. Ogunsakin Vs. Ajidara (2008) 6 NWLR (pt. 1082) 1: Ikoro Vs. Izunaso (2009) 4 NWLR (pt.1130) 45 at p. 69: Amaechi Vs. INEC (2008) 5 NWLR (pt.1080) 227 at p.318 and that since the provision at paragraphs 18(1) and 47 (2) of the First Schedule to the Electoral (Amendment) Act No.6, 2010 are simple and plain, they should be construed in their ordinariness. He relied on Buhari Vs. Obasanjo (2005) NWLR (Pt.910) 241 . Replying to the contention of Mr. Idowu against the competency of the pre-hearing application by the petitioners, Mr. Ajayi for them, submitted that there was compliance by the petitioners with paragraphs 18(1)-(10) and 47(1 & 2) of the First Schedule to the Electoral (Amendment) Act No.6 of 2010. He contended that the days of technicalities are now over as the courts these days seek to do substantial justice. He referred to Egolum Vs. Obasanjo (1999) 7 NWLR (Pt.611) 355.
It is the further submission of Mr Ajayi that since the 1st and 2nd Respondents did not raise any objection to the pre-hearing application at the lower tribunal, they had waived their right of objection and cannot now raise a fresh issue clothed with jurisdictional garment. He referred to Nsiegbe vs. Mgbemena (2007) 10 NWLR (Pt.1042) 364 at pp 374 – 375: Eno Vs. Akpotu (1968) 1 All NLR 220: Zomo Vs. Oyakhire (1985 1 NWLR (pt.2) 195.
Mr. Ajayi, also contended that since the fresh issue being raised by the 1st and 2nd Respondents, as a jurisdictional issue, the leave of this court must be first sought and obtained before it can be raised. He relied on Ezukwu Vs. Ukachukwu (2004) 17 NWLR (pt.902) 227 at pp.249 – 250, to the effect that since the fresh issue being raised is not relevant to the Appellants’ grounds of appeal, the 1st and 2nd Respondents ought to have filed a cross-appeal and not a Respondent’s Notice, which he urged us to discountenance.
Now, is the filing of a pre-hearing application in an election petition, a jurisdictional issue? Paragraph 18(1) of the First Schedule to the Electoral (Amendment) Act No.6 of 2010 says.
“18 (1) within 7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s reply, whichever is the case, the Petitioner shall apply for the issuance of prehearing notice as in Form TF 008”. (underlined for emphasis)
The Petitioners/Appellants made an application on 13th June, 2011 to the Secretary of the lower tribunal and filed it at the registry of that tribunal and thereafter Form TF.007 was issued as Pre-hearing Notice in the petition. The 1st and 2nd Respondents, in response, filed Form TF.008 and thereafter they fully participated at the pre-hearing session. The lower tribunal issued a report in respect of the pre-hearing session. Thence forward, the petition proceeded to trial and at the end thereof, the petition was dismissed. The petitioners appealed against the judgment of the lower tribunal to this court. In reaction, the 1st and 2nd Respondents filed a Notice to affirm the judgment of the lower tribunal on other grounds than those upon which the judgment was anchored.
It seems to me that the provision at paragraph 18(1) of the First Schedule to the Electoral (Amendment) Act No.6 of 2010, is no more than that a petitioner, at the close of pleadings at an election petition tribunal, must or “shall apply” to the Secretary of the tribunal for the issuance to the parties, Pre-hearing Notices, so that pre-hearing session can commence on his petition. It is a procedural step for the activation of a pre-hearing session. And where a petitioner fails to do so, his sanction is a dismissal of his -petition. That is, because he failed to take necessary procedural step for the prosecution/trial of his petition, he is deemed as being unserious and so the petition would attract a dismissal and no more.
I do not therefore see how it can be said that a failure to apply for a pre-hearing notice affects the competence of the petition and invariably the jurisdiction of the tribunal to entertain it. After all, there is no challenge to the competence of the petition itself.
In the most recent decision of the Supreme Court on the effect of a non-compliance by a petitioner with paragraph 18(1) of the First Schedule to the Electoral (Amendment) Act No.6 of 2010, in the unreported suit No. SC.350/2011 between Mallam Abubakar Abubakar & 2 Ors, Vs. Saidu Usman Nasamu & 3 Ors. Of 9th November, 2011, his Lordship, TABAI, JSC, had this to say:
“The challenge here is non-compliance with paragraph 18(1) of the First schedule to the Electoral Act. Where a plaintiff in a procedural step necessary for the successful prosecution of the claim or petition, his act or omission constituting such failure or default does not affect the jurisdiction of the court. It only constitutes a failure to prosecute the claim and which failure attracts a dismissal”.
In the light of the above, I am of the firm opinion that the fresh issue being raised by the 1st and 2nd Respondents, predicated on the compliance or non-compliance with paragraph 18(1) of the First Schedule to the Electoral (Amendment) Act, 2010, is not a jurisdictional issue and cannot be so dressed with a borrowed jurisdictional garment.
It is very clear to me that the fresh issue being sought to be raised by the 1st and 2nd respondents, did not arise at the lower tribunal and apparently, it did not feature in any of the appellants’ grounds of appeal.
The law, generally, is that it is the responsibility of the respondent who has gotten a judgment in his favour to defend it, but where it wants an improvement on the quality of that judgment or that it be affirmed on other grounds, the fresh issue must relate to the appellants’ ground of appeal. See Dibiamaka Vs. Osakwe (1989) 1989) 3 NWLR (pt.107) 101 ; Onifade Vs. Olayiwola (1990) 7 NWLR (pt.161) 130. And any issue which is not formulated from or grounded on a ground of appeal is incompetent and liable to be struck out See: Bank of the North Ltd. Vs. Na Bature (1994) 1 NWLR (pt.319) 235: Khaled Chami Vs. UBA Plc (2010) 2 SCNJ 23 at p.36.
Therefore, instead of raising a fresh issue in a respondent’s notice and the fresh issue is not predicated on an appellant’s ground of appeal, the respondent ought to cross-appeal and with leave of court, argue his fresh point/issue which was not argued at the trial court per BULKACHUWA, JCA, in North – South Petroleum (Nig) Ltd, Vs. Federal Government of Nigeria & 5 Ors. (2002) 17 NWLR (Pt.797) 639. See also Nigeria Port Authority Plc v. Oseni (2000) 2 NWLR (pt. 669) 410 at P.418, Luke Okoro & Ors. Vs. Hillary Egbuoh & Ors. (2006 6 SCNJ 258 at pp.271 & 273.
In sum, the 1st and 2nd respondents’ notice to raise a fresh issue, is unarguably incompetent and it is accordingly struck out.
Now to the main kernel in this appeal. The sole issue for determination in the appeal as identified by the appellants in their brief of argument and with which each set of the respondents agree, is to wit:
“Whether the Lower Tribunal was not in error in dismissing the Appellants’ case in view of the pleadings and evidence before it”.
Mr. Owoseni Ajayi, learned counsel to the appellants submitted that the appellants led credible evidence in 12 polling units of the Efon Constituency to establish that there was no election conducted in accordance with the provisions of the Electoral Act. And that since no evidence was led by the respondents to discredit the appellants’ witnesses; the averments in the petition should be deemed as true and established. He relied on Newbreed Organisation Ltd. Vs. Erhonmonsele (2006) 5 NWLR (pt.974) 4999 at p.527; Agbi vs. Ogbe (2003) 1 NWLR (pt.508) 74.
It is the further submission of the appellants’ counsel that the unchallenged and credible evidence of the appellants must be deemed as having been admitted and that the lower tribunal was bound to act on them. He referred to Dr. Agagu Vs. Dr. Mimiko (2009) All FWLR (pt.492) 1122 at pg.1159: Egom vs. Eno (2008) 11 NWLR (pt.1098) 320 at p.336. Mr. Ajayi also submitted that since the 4th – 7th respondents did not join issues with the appellants in respect of paragraphs 10, 11,12 and 13 of the petition, that tantamounts to an admission against interest and in favor of the appellants. He referred to Onyenye Vs. Ebere (2004) 13 NWLR (Pt.889) 20 at p.39: I. F. A. Int. Ltd. Vs. Lead Merchant Bank Plc (2005) 9 NWLR (pt.930) 224: Odi Vs. Iyola (2004) 8 NWLR (Pt. 875) at p.308
Mr. Ajayi, continuing his submissions, contended that the failure of the 4th – 7th respondents to defend the allegations against them was fatal to their case on the authority of Ajadi Vs. Ajibola (2004) 16 NWLR (pt.998) 91 at p.164. He urged that section 149 (d) of the Evidence act, be invoked against the 4th – 7th respondents and relied on A.G. Kwara State Vs. Olawale (1993) 1 NWLR (pt.12) 236. Learned counsel also submitted that there was an unholy uniformity in the depositions of the 1st and 2nd respondents’ witnesses which pointed to the fact that they were concocted, devoid of reality and too generalized to be true or capable of being believed. He referred to Esangbedo Vs. The State (1972) 12 SC 211 at p.215: Gabriel Vs. The State (1989) 5 NWLR (Pt.122) 457 at P. 468.
Furthermore, Mr. Ajayi submitted that the appellants’ case is predicated on paragraphs 10, 11, 12 and 13 of the petition to the effect that the election in question was characterized by various acts of ballot box snatching, stuffing of ballot boxes with ballot papers and that the election was vitiated by apparent falsehood, inconsistencies and irreconcilable distortions disclosed on Forms EC 8A, EC8 B, EC8 C and other Forms purportedly used in the said election.
He therefore submitted that the appellants have proved the allegations of violence, thuggery, intimidation, manipulation, wrong and conflicting entries in the Electoral Forms and Sundry allegations against the respondents on a preponderance and sufficiency of evidence and not on the standard of proof beyond reasonable doubt. He relied on Onoh Vs. Okey (1999) 5 NWLR Pt.602) 240 at P.248; Chief Akin Omoboriowo Vs. Chief Adekunle Ajasin (1984) 1 SCNLR 108.
Arguing on the issue of dumping of documents on the lower tribunal, Mr. Ajayi submitted that the lower tribunal’s holding that the documents tendered in evidence were merely dumped on her was erroneous because according to him, those documents were pleaded by the appellants and that by consent of parties, they were admitted in evidence. Furthermore, that it was incumbent on the lower tribunal to have looked into the documents and determine their veracity and the value to be attached to them. However, that since the lower tribunal failed to so do, this Court should invoke its statutory power and come to an appropriate decision, on those documents! He referred to Fagunwa v. Adibi (2004) 17 NWLR (pt.903) 544 at P.567, Furthermore, that the Court has the duty to examine all relevant documents tendered before it along with the evidence proffered on them in order to ascertain their evidential value. He relied on Bayo v. Nidda (2004) 8 NWLR (pt.876) 544 at P.610: Dagash vs. Bulama (2004) 14 NWLR (Pt.892) 144.
Furthermore, and in continuation of his submissions, Learned Counsel to the appellants submitted that in view of the established facts of violence, thuggery and intimidation of voters which characterized the election in question, what the 1st and 2nd respondents claimed to be an election was not an election in law.
He referred to Prof. Osunbor vs. Adams Oshiomhole (2009) ALL FWLR (pt.463) 1363 at P.1405 where this court opined that
…” The concept of election denotes the process of accreditation, voting, collation, recording on all INEC Forms and declaration of results.” And that there was a broken chain in the electoral process in the erection in question, because of the unholy acts of the respondents on election day.
Mr. Ajayi, contended that since the petition was not basically rooted in crime, the onus of proof on the petitioners/appellants was to be discharged on a preponderance of evidence and not on a proof beyond reasonable doubt. This is because, according to him, the allegations against the respondents were mere electoral malpractices. He referred to Okukwuma Vs Anyankora (2006) ALL FWLR (Pt.302) 137. Learned counsel, submitted that where some of the allegations bordered on commission of crimes, the evidence by the appellants’ witnesses, clearly proved them beyond reasonable doubt and does not mean proof beyond every shadow of reasoning. He referred to Agagu Vs Mimiko (2009) 7 NWLR (pt.1140) 342; Aregbesola vs. Oyinlola (2009) 14 NWLR (Pt.1162) 429; Fayemi v. Oni (2009) 7 NWLR (pt.1140) 223.
Regarding the shifting of the onus of proof on Election matters, Mr. Ajayi submitted that where the petitioners have established that the election was not held in accordance with the provisions of the Electoral Act, the onus shifted to the respondents to show that the election was properly conducted in accordance with the provisions of the Electoral Act. He referred to INEC Vs. Ray (2004) 14 NWLR (Pt.892) 92 at PP.128-129; Dr. Agagu vs. Dr. Mimiko (2009) 7 NWLR (Pt.1140) 342 at P.432.
In urging us to allow this appeal, Mr. Ajayi submitted that on the doctrine of substantial non-compliance and sufficiency of facts, which was propounded by this court in Dr. Agagu v. Dr. Mimiko (supra); Prof. Osunbor Vs. Adams Oshiomhole (supra) and Dr. Fayemi and Segun Oni (supra), if we find that there was substantial non-compliance in the conduct of the election in question, we should invalidate the said election and order are-run or fresh election.
Niyi Idowu, Esq., of Learned Counsel to the 1st and 2nd respondents, arguing against the contentions of the appellants, submitted that the bulk of the complaint of the appellants in their petition borders on allegations of crimes such as multiple thumb printing of ballot papers, electoral violence, intimidation, harassment and bribery as pleaded at paragraphs 12 (v) (b), (viii), (ix), (xvi), (xix), (xxi), (xxii), (xxvi) (xxvii) (xiv) whilst the petitioners also complained of non-compliance with the provisions of the Electoral Act at paragraphs 12(xi) (xx) and (xxviii) of the petition, and that since the fulcrum of the petition is the allegation of some offences, the combined effect of sections 128 and 129(1) of the Electoral Act, 2010, is that the said allegations are criminal. He referred to Section 118(1) (F-J) which makes forgery of any ballot paper or official mark on any ballot paper or any certificate of return or result form, an offence.
Learned counsel submitted that under section 138(1) of the Evidence Act, the standard of proof of a crime, is a proof beyond reasonable doubt. He relied on Nwobodo vs. Onoh (1984) SCNLR 17: Kalu vs Uzor (2006) 8 NWLR (pt.981) 68 at PP.87- 88; Ajadi vs. Ajibola (2004) 18 NWLR (Pt.898) 91 at PP.163- 164. And furthermore, that in an allegation of ballot stuffing, the petitioners/Appellants, were under law, required to tender in evidence, the ballot boxes before the tribunal and the same must be opened in open court. He referred to Haruna v. Madibo (2004) 16 NWLR (pt.900) 551 at p.552 paras. D-E.
Mr. Idowu, submitted also that the Forms EC8As tendered in evidence in respect of the disputed polling units where election was held, being the duplicate copies issued to the agents of the 1st and 2nd respondents, were deemed to be original of the electoral forms and constitute primary evidence of the outcome of the election, so the 1st and 2nd Respondents validly tendered them in evidence. He referred to Obun v. Ebun (2006) ALL FWLR (Pt.327) 419 at P.455 Paras C – F.
Learned Counsel, furthermore submitted that the second ground upon which the petition was predicated was a noncompliance with the provisions of the Electoral Act, 2010 (as amended). He referred to paragraphs 3, 11(a), (b), 12(i), (ii), (iii), (iv) (v) (vi), (vii), (x), (xi), (xviii), (xx), (xxii), (xxiii), (xxvii) of the petition at pages 2 4 of the records of appeal. He relied on Section 139(1) of the Electoral Act. 2010 (as amended) an Wali Vs. Bafarawa (2004) 16 NWLR (Pt.895) 5 at P.422: Onugwe Vs Emelumba (2008) 9 NWLR (Pt.1092) 371 at P.395: Buhari Vs Obasanjo (2005) 13 NWLR (Pt.941) 1 at PP.417 – 418 to the effect that for an allegation or complaint of noncompliance with the provisions of the Electoral Act to succeed, the petitioners must prove that the non-compliance must be so great and that a minor and insignificant breach of the provisions of the Electoral Act, would not vitiate or invalidate an election.
Arguing the point in respect of dumping of electoral forms EC8A, EC8B, EC8C, EC B40 which were pleaded and certified at the instance of appellants, Mr. Idowu submitted that it was the duty of the appellants to have established by evidence how each document specifically related to the part of their case and this was not done by any of the appellants’ witnesses. He referred to Agbodike Vs. Onyekaba (2001) 10 NWLR (Pt.722) 576 at P.586 para G: ANPP v. INEC (20101 13 NWLR (Pt.1212) 431 at p.597 paragraphs A – B: Sullivan Chime & Ors Vs. Barr. Okey Ezra & Ors (2009) 2 NWLR (Pt.1125) 263 at PP.380 – 381; Terab Vs. Lawan (1992) 2 NWLR (Pt.231) 569: Awuse Vs. Odili (2005) 16 NWLR (Pt.952) 416 at P.510. He urged us not to be tempted by the invitation by the Appellants to scrutinize the bindle of documents aforementioned, because the respondents would not have any opportunity of a cross-examination on them.
He referred to Audu v. INEC No.2 (2010) 13 NWLR (pt.1212) 431 at P.250 paragraph F- H. Regarding the question of broken chain of electoral process, raised by appellants’ counsel in his submission, Mr. Idowu submitted that it was not an issue at the lower tribunal and the same cannot be entertained now and that in any event, the admission in evidence without any objection of Exhibits RW1-RW12 which were the overall collation of the results and final declaration of results for Efon Constituency, Ekiti State House of Assembly election in question shut out the contention of the appellants on the alleged broken chain of electoral process.
Mr. Idowu urged us to hold that since the petitioners/appellants failed to make out their case , a consideration of the respondents’ case would not arise. He referred to Awuse Vs Odili (2005) 16 NWLR (pt.952) 416 at P.500 paragraphs F and that since there was no sufficient evidence to establish the Petitioners’/Appellants’ petition, it merited a dismissal. He relied on Elias Vs. Omobare (1982) 1 SC 25 at PP.46 – 47; Rimi Vs INEC (2005) 6 NWLR (Pt.920) 56 at P.84 and urged us to dismiss this appeal.
On his part, Oso Adetunji, learned counsel to the 5th and 6th respondents submitted that it was the duty of the petitioners/appellants, who alleged that the election in question was marred with electoral violence, irregularities and noncompliance with the Electoral Act, to prove those allegations. He referred to Chime Vs. Onyia (2009) 7 NWLR (Pt.1125) 263 at P.355: Nwobodo Vs. Onoh 1984, 17 SCNRL (?); Kalu v. Uzor (2006) (2006) 8 NWLR (Pt.981) 68 at PP.87-88; Ajadi v. Ajibola (2004) 8 NWLR (Pt.898) 91 at PP.163-164. Paragraphs H-B.
Furthermore, he relied on Haruna Vs. Madibo (2004) 16 NDWLR) (sic) (Pt.900) 551 at P.552 paragraphs D – E, to the effect that the allegation of ballot stuffing in ballot boxes was not proved by the appellants because the said ballot boxes were not tendered and admitted in evidence and opened at the lower tribunal.
Mr. Adetunji, submitted also that there was a presumption of regularity in the electoral forms EC8A, EC8C and EC8E which were tendered in evidence by the 1st respondent as there was no evidence by the appellants’ witnesses to contradict any of those forms and that although the Forms were in duplicate, they are treated like original copies on the authorities of Nwobodo Vs. Onoh (1984) 15 NSCC 1; Torti Vs. Ukpabi & Ors (1984) 15 NSCC 1; Obembe v. Ekele (2001) 10 NWLR (Pt.722) 677 at PP.693-694 paragraphs H – A.
In respect of the allegation of non-compliance with the Electoral Act, learned counsel submitted that the alleged noncompliance must be substantial for it to have affected the conduct and result of the election, which was not proved, according to him, by the petitioners/appellants. He relied on Wali v. Bafarawa (2004) 16 NWLR (pt.895) 5 at P.422: Onuigwe vs. Emelumba (2008) 9 NWLR (Pt.1092) 371 at P.395; Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1 at PP.417 – 418.
Concluding on the question of dumping of electoral documents on the lower tribunal, Mr. Oso Adetunji, submitted that the said documents were not linked to any part of the petitioners’ case and that “a document cannot be pleaded at large”. He relied on Agbodike Vs. Onyekaba (2001) 10 NWLR (Pt.722) 576 at p.588, paragraph D and urged us to dismiss the appeal since the Petitioners/Appellants did not make out their case at the lower tribunal, whether or not the 4th -7th respondents defended the
petition.
Paragraphs 11, 12 and 13 of the petition are reproduced hereunder, for ease of reference and appreciation, thus:
11. GROUNDS AND FACTS UPON WHICH THIS PETITION RELIES
The grounds on which the petition relies are:
a) That the election is invalid by reason of non-compliance with the provisions of the Electoral Act 2011.
b) That the election is invalid by reason of corrupt practices by buying of votes in the glare of the public and security agencies at the venue of election on the election day.
c) That the agents of the 1st & 2nd Respondents in all the wards stuffed the ballot boxes with already thump printed ballot papers of the 1st & 2nd Respondent and removed many ballot papers that were voted for the petitioners.
d) The security agencies and the officials of the 6th Respondent compromised their official duties by compromising with the agents of the 1st & 2nd Respondent to comment electoral malpractices.
e) The 3rd Respondent was moving round the wards with guns threatened electorates to vote for him which they did until he was arrested by the Police at Ojodi in wards 8 by which time many damage had already being done.
12. FACTS SUPPORTING THE GROUNDS
Your Petitioners plead that the election sought to be nullified was conducted in substantial negation of the fundamental principles of the Electoral Act, 2011 which are the substance of democracy, neutrality in the conduct of the election, fairness and allegiance to the Federal Republic of Nigeria. The 6th Respondent and its representatives, who served as presiding officers, poll clerks, wards and Constituency returning Officers were in the conduct of the election undemocratic, lacking in neutrality, unfair to all concerned save for the 1st & 2nd Respondents and manifested in overt actions, loyalty and neutrality, not to the Federal Republic of Nigeria but to the 1st & 2nd Respondents who succeeded in compromising them to do their biddens.
ii. The 6th Respondent failed, neglected or omitted to subject the Electoral officers, presiding officers and Returning officers who participated in the conduct of the election to an oath or affirmation of loyalty to the Federal Republic of Nigeria, and neutrality in the conduct of the election in negation of the provisions of Section 28 of the Electoral Act 2011. Your petitioners plead that this failure. Neglect or omission robbed all the officers who participated in the conduct of the election of the fundamental competence to participate in the conduct of the election. As a result, the petitioners plead that the election is null and void.
iii. In accordance with the provisions of Section 43 (3) & (4) of The Electoral Act 2011, the polling Agents of contesting political parties were expected to certify all the election materials to be used at the election from the office to the poling station, But the 6th Respondent and its representatives failed or neglected to apply this very important provision, which was enacted to ensure credibility of the electoral process. As a result of this failure, the petitioners shall contend, it became impossible to monitor what materials actually and officially emanated from the offices of the 6th Respondent at the National State or Local Government points of distribution of election materials such as the ballot boxes, the ballot papers and result sheets for the polling stations (booths), wards, Local Government Area and state Assembly Collation Centers.
iv. The petitioners hereby plead and shall contend at the hearing that all such uncertified election materials were invalid for the election, and, by extension, the election itself was invalid, the same having been conducted with invalid materials.
v. The petitioners further plead that the 6th Respondent and its Agents before election, during the elect on and after the elections, in their conduct and actions manifested a likelihood of bias in favour of the 1st Respondent, the 2nd Respondent and their Sponsor, the ACN Government of Ekiti State such manifestation of bias was to the detriment of the petitioners and other Political Parties. Particulars of some of the acts or conduct that manifested likelihood of bias are as follows:
(a) The 6th Respondent recruited and trained ad-hoc staff to perform duties as presiding/Returning officers, poll clerks and other assigned duties. But less than forty-eight hours to the election and in some cases on election day, most of the recruited and trained ad-hoc staff were dropped, even though most of them had been given appointment letters. In their places those who were recruited turned out to be members of ACN, their relations, supporters or those sponsored by the party.
(b) Before and during the election, the 6th respondent connived at malpractices and acts of violence carried out by the ACN thugs and stalwarts either acting alone or in collusion with the Nigerian Mobile Police, against the members of the Labour Party and other political parties and their supporters.
(c) The field officers of the 6th respondent were aware of the acts of violence and other malpractices but refused to react to them on the spot thereby giving room for other acts of non-compliance and irregularities to be perpetrated by the ACN. For example, the INEC officials still accepted and declared results at higher levels of collation centers even from places where ballot boxes were physically snatched from the polling stations to unknown locations by ACN thugs and stalwarts to the knowledge of the INEC and its officers.
vi. The petitioners plead and shall contend that, based on the facts above pleaded, and shall hereafter be pleaded, the 6th Respondent and its personnel in the Efon House of Assembly Constituency Areas conducted the election in a manner that create privileges and advantages to the ACN and its candidate, to the detriment of the Petitioners and other parties and their candidate, thereby manifesting a discriminatory attitude in its, or their application of the Electoral Act 2011, in the conduct of the election contrary to section 42 (1) (b) of the 1999 constitution of the Federal Republic of Nigeria.
vii. The petitioners therefore plead that all the vitiating elements pleaded above having rendered the Efon House of Assembly of 26th April 2011 null and void, the election is invalid. viii. In addition to the vitiating status, conduct and acts of the 6th respondent, your Petitioners plead that the election was marred by widespread violence, executive intimidation, and electoral malpractices such as entry of fictitious figure into result sheets at the different stages of the elections, barring of agents of political parties and candidates other than those of the ACN from collation centers (where such centers were allowed to exist), pre-voting time finger printing of ballot papers, snatching of election materials by thugs for stuffing outside polling stations, and other pronounced irregularities details of some of which are hereunder pleaded.
ix. The House of Assembly election held on 26th April, 2011 in Efon-Alaaye, Ekiti State was characterized by hijacking of Ballot boxes election materials, proxy voting, absence of voting materials, absence of INEC Staff, disruption of voting, stuffing of ballot boxes, violence and intimidation in virtually at the polling stations of the Constituency.
x. The Petitioners shall rely upon and hereby plead all documents used or purported to be used at the election, all protests, petition or other correspondences by aggrieved persons or other complainants to the 6th Respondent or any of its agents or representative at the National, State or Local government or award levels at the election. Each respondent, particularly the 6th respondent is hereby given notice to produce whichever of the documents are in his/her or its possession.
xi. Your Petitioner state that no elections known to the Electoral Act, 2011 and the manual for election or to any civilized society was conducted in Efon House of Assembly Constituency and that various purported results from all the units and wards were fabricated and manipulated in favour of the 1st and 2nd Respondents and not born out of any lawful electoral process.
xii. Your Petitioner state that in most of the polling units voters were not properly accredited as voters Registered were thicked arbitrarily in favour of the thugs/agents of the 1st & 2nd Respondents who thumb printed the ballot papers in favour of the 1st & 2nd Respondent, which act is contrary to conduct of lawful election.
xiii. Your Petitioners aver that at the various polling units comprising the constituency several of teeming members, supporters and arrested, molested, chased and driven out of Efon town on the election day by agents of the 1st & 2nd Respondents aided by police officers thus denying them of the opportunity to exercise their franchise.
xiv Your Petitioner aver that in a strange and shameless manner the agents of the 1st & 2nd Respondents were buying votes with money directly at the polling units under the supervision of the police officers attached to the various units.
xv. Your Petitioners aver that contrary to their duties under the Electoral Act, 2011 the agents of the 6th Respondent who acted as presiding officers and poll clerks and the security agencies attached to the various polling units in the constituency were heavily compromised by agents of the 1st & 2nd Respondents who instead of performing their constitutional duties looked the other way or even joined in the Electoral malpractices.
xvi. Your Petitioners aver that in most of the polling units in the constituency, ballot boxes were hijacked in broad day light by heavily armed members of the Police force attached to a the Government House led by one Mr. Segun Oni the 2nd Respondent youth leader for Efon Local Government shooting sporadically. Other 1st & 2nd Respondents agents who acted as thugs to disrupt the election include Ayodele OLAMIDE ODUNAYO OLANIYAN, PAUL (staff of Efon Local Government), OKE OISAWE, DADA OYIN-RIN-KINSIN, ODOLE GBENGA, TUNDE OJUTI, KAYODE BABALOLA, TOPE ALAGBONRIN, OLADIPUPO AJETOMOBI, ADEBODUN OLADIPUPO, ONI FESO AND SANMI OLALEKAN.
xvii. The P.D.P. group of thugs where led by HON. BISI KOLAWOLE who was brandishing guns about, ADENIYI ADEMOLA, ADENIYI TAIWO, ADENIYI ADEROGBA, DEJI ETIKAN, ESKAY OMO ABELEYEKE, BABADE REUBEN AND MAYOWA ASAOLU.
xviii, your petitioners aver that the acts of the agents of the 1st & 2nd Respondents were reported personally by the 1st petitioner to the Electoral Officer for Efon local Government and the DPO for the Local Government who promised that elections in those areas where ballot boxes were hijacked would be cancelled but surprisingly Results were returned for these areas where election were disrupted in favour of the 1st & 2nd Respondents.
xix. In units 08, 09 & 10 of ward 3 and units 08, 09 & 12 of ward 5 ballots papers already thumb printed in favour of the 1st & 2nd petitioners were brought out from the ballot boxes and destroyed and replaced with those thumb printed for the 1st & 2nd Respondent in the presence of voters under the supervision of heavily armed policemen.
xx. Your petitioners will contend that there was no collation of results of the polling units at designated ward collation centers but at locations only known to the 1st & 2nd Respondents.
xxi. Your petitioners will contend that the constituency collation centre was marred with violence and thugery activities engineered by the agents of the 1st & 2nd Respondents who eventually scared away the agents of the Petitioners.
xxii. Your petitioners aver that further to the above paragraphs the result announced by the 5th Respondent were product of concocted, fabricated and allocated figures under the Supervision of the agents of the 1st & 2nd Respondents and therefore contrary to the tenets and guidelines of the Electoral Act, 2011 for the conduct of a credible and acceptable Election.
xxiii. Your petitioner aver that top officials of the 6th Respondent have been quizzed and queried by the 6th Respondent itself and by the state security Service (sss) in respect of the monumental bribery taken by then to pervert the course of justice in the constituency election.
xxiv. Your petitioner State that leading members of the 2nd Respondent in Efon Alaaye including ACN Agents are SEGUN ALANAKA, ODUNAYO PAUL a worker at Efon L.G., TOPE DIPLOMA, SEGUN ACN youth leader for Efon, TOPE ALAGBONRIN and AYODELE OLAMIDE. PDP Agents HON. BISI KOLAWOLE and FAMODIMU DAYO spearheaded the hijacking of ballot boxes and taken same to unknown destinations for ballot stuffing.
xxv. your petitioners State that the 6th Respondent agents including the presiding officers and poll clerks acting to favour the 1st & 2nd Respondents randomly used anonymous names and signatures as agents of other political parties particularly that of the 2nd Petitioner.
xxvi. Your Petitioner aver that in some units some of her agents were forced at gun Point by agent of the 7th Respondent to sign result sheet.
xxvii. Your Petitioners aver that they made written and oral protests to the 5th & 6th Respondents in respect of the complaints, malpractices and irregularities herein before pleaded and shall found upon such at the trial of this petition.
xxvii. Your petitioners aver that they made written and oral protests to the 5th & 6th Respondents in respect of the complaints, malpractices and irregularities herein before pleaded and shall found upon such at the trial of this petition.
xxviii. PARTICULARS OF NON-COMPLIANCE WITH ELECTORAL PROCEDURE FOR THE CONDUCT OF THE ELECTION:
(a) The number of ballot papers issued to the units were not recorded by the presiding officers in most of the polling units.
(b) The number of ballot papers used at the election were not recorded in most of the polling units.
(C) The number of valid votes cast by the voters for the parties and/or their candidates were not recorded or entered into INEC form EC8A in the presence of accredited agent of the petitioner.
(d) The votes cast in each of the polling units were not in conformity with the number of ballot papers issued.
(e) The electoral form EC40C were not completed or filled at all by the presiding officers in most of the polling units to reflect the quantity of the ballot papers and the serial numbers.
(f) At the close of election in the polling units, the ballot boxes were not opened in the presence of the party agents and the votes counted and recorded or entered into INEC form EC8A in the presence of the petitioner’s agents because the processes were hijacked by thugs and agents of the 1st & 2nd Respondents.
(g) In most of the polling Units & collation centers Election results were not given to the agents of the petitioner nor copy pasted at the venue of the polling units in accordance with the Electoral Act, 2011.
(h) Voters registers were ticked recklessly and arbitrarily.
xxix. In consequence of the malpractices mentioned above electoral forms like forms EC8A, EC8B, EC8C and others used for the election are replete with false and irreconcilable figures and information in virtually all the polling units in the constituency.
xxx. your petitioners hereby give notice to the 5th & 6th Respondents to produce before and/or at the hearing of this petition, the following documents in their possession’
(1) All the forms EC8A, EC8B, EC8C and others forms purportedly used in the aforementioned wards comprising the constituency where the Efon house of the Election took Place.
(2) The voters, Registers purportedly used in the said wards of the constituency, duly certified.
(3) The comprehensive party agents lists submitted by the different political parties particularly that of the petitioners, duly certified.
(4) purportedly used and unused ballot papers and their stubs at the constituency election.
xxxi. At the hearing of this petition your petitioners shall rely upon and make use of ail documents, forms, reports, writings related to or connected with all the facts herein before Pleaded.
a. AN Order of the Tribunal Court that the election is invalid for reason of corrupt electoral malpractices and gross abuse of the electoral Process.
b. AN Order of the Tribunal nullifying the election for substantial non-compliance with the provisions of the Electoral Act, 2011.
c. AN Order of the Tribunal for a re-run of the election in Efon constituency in Ekiti state House of Assembly election which was held on the 26th day of April, 2011.” on the pleadings of the petitioners at paragraphs 11 (b) (c)
(e) of the petition, the allegations of corrupt practices of buying of votes at the venue of the election dry; stuffing of ballot boxes with already thumb printed ballot papers by the 1st and 2nd respondents and the removal of many ballot papers that were voted into ballot boxes for the petitioners and the use of guns to threaten the electorates at the polling units on the election day respectively were clearly disclosed. Furthermore, at paragraphs 12(viii, (ix) (xi) (xiii) (xiv) (xvi) (xvii) (xxi) (xiii) (xxiv) and (xxvi) of the petition, various allegations of widespread violence, executive intimidation, forgery, shatching of ballot boxes and stuffing into them with ballot papers outside the polling stations, harassment, assault, shooting of guns and/or brandishing them, thuggery and monumental bribery, were clearly disclosed. Undoubtedly, the allegations mentioned above impute the commission of electoral offences by the 1st and 2nd respondents’ agents. The law is that in any civil or criminal proceedings, where the commission of an offence is imputed against another person, the accuser must prove the allegation beyond reasonable doubt. See section 138 (1) (3) of the Evidence Act.
The aforementioned electoral offences were alleged to have been committed on the 26th April, 2011 election day, hence sections 128, 129, 130 and 131 of the Electoral (Amendment) No.6 of 2010 are germane, in the circumstances of this case. I have painstakingly perused the pieces of evidence led by the petitioners/appellants’ witnesses and it is manifestly clear that their pieces of evidence on the electoral offences are largely general in nature. Perhaps, if the standard of proof required to prove the criminal allegations was on a balance of probability and preponderance of evidence as contended by Mr. Ajayi, for the appellants, it would have required the weighing together of the pieces of evidence by the petitioners’ witnesses with that of the respondents, witnesses on an imaginary scale in order to determine in whose favour, the scale of justice tilts. However, the submission by Mr. Ajayi does not represent the law. See Nwobodo v. Onoh (1984) SCNLR 17 where the Supreme Court succinctly put the issue beyond argument that,
“While in an election petition the petitioner makes an allegation of a crime against a respondent and made the commission of crime as the basis of his petition, the sub-section imposes strict burden on the petitioner to prove the crime beyond reasonable doubt.”
Following Nwobodo Vs. Onoh, Supra, this Court in Kalu v. Uzor (2006) 8 NWLR (pt.981) 68 at PP.87 – 88 held that:
“Where generally corrupt practices or offence is alleged in an election to invalidate the election, the petitioner must prove the alleged practice or offence in addition to the following:
(a) That the 1st Respondent personally committed the alleged crime or aided or abetted the commission of the alleged corrupt practice or offence.
(b) That where the alleged act was committed through an agent, the said agent was authorized by the 1st Respondent.
(c) That the alleged corrupt practice or offences affected the outcome of the election and how it affected it.
(d) That but for the corrupt practices or offence, the petitioner would have won the election.”
And in Ajadi v. Ajibola (2004) 18 NWLR (pt.898) 91 at PP.163-164 this court reiterated the same view that:
“Where there is a complaint about violence or thuggery in an election petition, a nexus must be established between the perpetrators and the Respondents by credible evidence. It must also be shown that the act adversely affected the conduct of the election and further that the act substantially affect the result of the election”.
Therefore, the petitioners who alleged the commission of some electoral offences had the duty to prove them beyond reasonable doubt. For example, when at paragraph 12(xi) of the petition, the petitioners alleged a fabrication and manipulation of election results in favour of the 1st and 2nd respondents, it tantamounts to the commission of an electoral fraud and imputation of the criminal offence of forgery, which must be proved beyond reasonable doubt. see Omodele Ashabi Eva & Ors vs. Alhaia Risikatu Olapade & Anor (2011) 5 SCNJ 98 at PP.118-119.
Furthermore, the allegation of ballot box snatching and stuffing such ballot boxes with ballot papers at paragraph 12 (viii) (ix) and (xxiv) of the petition appeared so widespread that the petitioners could have taken every step necessary for proving the same beyond reasonable doubt. For “in election petition where there is allegation of stuffing of ballot boxes, the ballot boxes in which the ballot papers were allegedly stuffed must be tendered before the tribunal and opened there. It is only when the ballot boxes are tendered before the tribunal and opened before it that such an allegation is sustainable.” see Haruna v. Modibo (2004) 16 NWLR (pt.900) 551 – 552. So, this court since 2004 had 1aid down a guide for proving the electoral offence of ballot box stuffing with ballot papers. However, the petitioners/appellants never took advantage of that guide, in this case.
Before I draw the curtain on the standard of proof beyond reasonable doubt, it simply means what it says. And it does not mean a proof beyond any shadow of doubt. Not at all. Once the proof through the evidence of the witnesses of the accuser drowns the presumption of innocence initially in favour of the accused person, although there could exist some shadows of doubt, a proof beyond reasonable doubt, would be established against the accused person. See Golden Dibie & 2 Ors Vs. The State (2007) 3 SCNJ 160 at P.176; Alhassan Mai Yaki v. The State (2008) 7 SCNJ 119.
I am of the firm opinion that the lower tribunal came to a just decision that the petitioners were unable to prove the allegations of criminal offences allegedly committed by the agents of the 1st and 2nd respondents on the election day of 26th April, 2011, beyond reasonable doubt. There was no reasonably sufficient evidence offered by the petitioners’/appellants’ witnesses which could have proved those alleged criminal offences committed by -the 1st and 2nd respondents’ agents beyond reasonable doubt. The other ground upon which the petition was predicted was that the election in question was not conducted in compliance with the principles of electioneering provided for in the Electoral (Amendment) Act, 2010. I had earlier in this judgment indicated that the petitioners complained of non-compliance in respect of 14 polling units comprised in Efon Constituency for Ekiti State House of Assembly election of 26th April, 2011. However, the petitioners’ witnesses gave evidence of non-compliance in respect of 12 polling units and out of which, one polling unit was cancelled by the 6th respondent. In effect, the allegation of non-compliance remained on 11 polling units only, leaving 108 polling units, without blemish.
Now, the petitioners duly pleaded the fact that some electoral documents were used at the said election at paragraph 12 xxx(1), (2), (3), (4) and xxxi of the petition and those Forms EC8A, EC8B, EC8C and other documents were tendered and admitted in evidence at the lower tribunal. Having so pleaded those documents, it behoved the petitioners’ witnesses in giving evidence of the electoral malpractices complained of in the petition, to demonstrate how Forms EC8A, EC8B, EC8C were each manipulated in favour of the 1st and 2nd respondents.
Therefore, it was not enough to give evidence of the fact of a manipulation of votes for the 1st and 2nd respondents without the oral evidence being tied with the documents that was used in the alleged manipulation. Hence, it is said that documentary evidence is a hanger upon which oral evidence is assessed. Just see:
Olujinle vs Adeagbo (1988) 2 NWLR (Pt.751 238; Kimdey & Ors Vs Mil. Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at p .474; Eholor Vs Osayande (1992) 7 SCNJ (Pt.II) 217 at PP .240-241.
In the circumstances of this case, the petitioners failed to prove how the alleged “inconsistencies and irreconcilable distortions disclosed on Forms EC8A, EC8B, EC8C and other forms purportedly used in the said election” as argued by Mr. Ajayi for them, were indeed disclosed by the evidence of the witnesses for the petitioners. Unarguably, submissions of counsel cannot be a substitute for hard evidence by witnesses. See Calabar Central Co-operative Thrift and Credit Society Ltd & 2 Ors Vs Bassey Ekpong Ekpo (2008) 2 SCNJ 307 at P.328.
I am of the firm opinion that it was the failure of the petitioners to link Forms EC8A, EC8B, EC8C and other electoral forms used in the election with the manipulation of the result of the election in favour of the 1st respondent through the evidence of appellants’ witnesses which led the lower tribunal to the finding that those “documents were simply dumped on the Tribunal.”
I am afraid, I cannot fault the lower tribunal, in the circumstances of this case. It has not been the law and I hope it will never be that once a document is admitted in evidence, it without more, becomes the duty or responsibility of the court to tie each of the bundles of documentary exhibit to specific aspects of a party’s case when the party could not himself demonstrate it. See Agbodike Vs Onyekaba (2001) 10 NWLR (Pt.722 576 at P.556; ANPP Vs INEC (2010) 13 NWLR (Pt.1212) 431 at P.597: Sullivan Chime & Ors Vs Barr. Okev Ezea & Ors (2009) 2 NWLR (Pt. 1125) 263 at 380-381; Terab Vs. Lawan (1992) 2 NWLR (Pt.231) 569; Awuse v. Odili (2005) 16 NWLR (pt.952) 416 at P.510; Imiama Vs Akpabio (2008) 17 NWLR (Pt.1116) 225 at 299 paragraphs D – E: Hashidu Vs Goje (2003) 15 NWLR (Pt.843) 352: Prince Abubakar Audu Vs. Independent Electoral Commission (INEC) & Ors (2010) 13 NWLR (Pt.1212) 431 at P.521.
Let me hasten to say that the law has remained settled that it is who asserts the existence of a fact or set of facts which are to his knowledge, that must prove those facts through evidence by him or his witnesses. See Section 137 (1) of the Evidence Act: Alhaji Aliyu Balogun Vs Alhaji Latiwon (1988) 3 NWLR (Pt.80) 67: B.A. Imonikhe Vs Unity Bank of Nigeria Plc. (2011) 5 SCNJ 73 at PP.89 – 90: Omodele Asabi Eva & Ors Vs Alhaji Risikatu Olopade & Anor (2011) 5 SCNJ 98. It is also settled that averments in pleadings must be proved as they are not synonymous with evidence. Just see: Akinfosile vs Ijose (1960) 5 FSC 122: Nzeribe Vs Dave Engineering Co. Ltd. (1994) 9 SCNJ 161 at p.172; Egbunike v. ACB (1995) 2 SCNJ 58.It must be remembered that it is when the plaintiff or a petitioner as in this case has led credible evidence in support of his case that a defendant’s case will be considered along with that of the plaintiff/petitioner, but where the petitioners’ petition is yet to get up for lack of evidence in proof of the averments in their pleadings/petition, as it was in this case at the lower tribunal, the petitioners case would fail on the strength of his own case and he cannot take solace in the weakness of the respondents’ defence or no defence at all. Therefore, the contention by Mr. Ajayi to the effect that since the 4th – 7th respondents did not defend the petition against the election in question, that amounted to an admission of petitioners’ claim, does not add any prosperity to the petitioners’ case. See Awuse Vs Odili (2005) 16 NWLR (Pt.952) 416 at p.500: Egom Vs. Eno (2008) 11 NWLR (Pt.1098) 320. Section 139(1) of the Electoral (Amendment) Act No.6 of 2010 says:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act, if it appears to the election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and the non-compliance did not affect substantially the result of the election.”
Thus, when a petitioner alleges that an election was not conducted substantially in accordance with the principles of the Electoral (Amendment) No.6 Act, 2010, he also has the duty of alleging that it was the non-compliance that substantially affected the result of the election. Did the appellants satisfy these two requirements in their petition during the trial at the lower tribunal?
The lower tribunal found that the petitioners did not prove noncompliance and dismissed the petition, because the malpractices alleged in the petition were not established I have myself, deeply perused the pleadings of the petitioners in their petition vis-a-vis the evidence led at the lower tribunal by the petitioners’ witnesses. At paragraph 4 of the petition, the petitioners pleaded the scores of the candidates at the said election, which according to them were “arbitrarily assigned to each candidate” and no more. It is clear from the pieces of evidence by the witnesses for the petitioners that the latter had their own polling agents at each of the disputed polling units. And it was expected that those polling agents were given the result from each poling unit where they worked for the petitioners. Where were those results which were given to the petitioners’ polling agents and why were the results not pleaded by the petitioners so that it could have been seen how the votes obtained by the 1st appellant, were later manipulated in favour of the 1st respondent? So, if the appellants rightly challenged the result of the election, they would have gone further to plead and prove the correct result of the election. This, the petitioners/appellants failed to do in this case. This court, in Prince Abubakar Audu Vs Independent National Electoral Commission (No.2) (2010) 13 NWLR (Pt.1212) 431 at 521 paras. A – B. stated the law thus:
“It is settled law that a party relying on the documents in proving his case must relate each of such documents to the specific areas of his in respect of which the document is being tendered in support of his case i.e. there must be link between the document and the specific areas of the petition. See: Jalingo v. Nyame (19 92) 3 NWLR (Pt.231) page 53; Terab v. Lawan (1992) 3 NWLR (Pt 231) 569 at 590; Hashidu v. Goje (2006) EPR page 789 at 814 – 815; (2003) 15 NWLR (Pt.843) page 352.”
Indisputably, the appellants did not prove the electoral offences allegedly committed by 1st and 2nd respondents which according to them contributed to the non-compliance of the election in question, with the Electoral (Amendment) Act, No.6, 2010 and there is no evidence of falsification of results as pleaded by the appellants at paragraph 3 of the petition. And what is more, out of the 119 Polling Units comprised in the Efon Constituency for the election in question, evidence of non-compliance was led in respect of 11 Polling Units only remaining 108 polling units as unimpeached and faultless! It means that the question of substantial non-compliance with the provisions of the Electoral (Amendment) Act No.6 of 2010 appears non sequitor.
This court in Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 at PP.417 – 418 stated the essence of the principle of non-compliance, thus:
“Non-compliance with electoral rules which can render an election void must be so great as to amount to conducting of the election in a manner contrary to the principle of election by ballot and must be so great as to satisfy the court that it did affect or might have affected the majority of the voters or, in other words, the result of the election.”
In the instant appeal, since there was substantial compliance with the Electoral Act in respect of 108 polling units of Efon Constituency, the allegation of non-compliance with the Electoral Act in 11 Polling Units which remained unproved, by the petitioners/appellants , cannot lead to an invalidation of the said election.
In sum, the appeal fails on all grounds of the petition. I, dismiss it in its entirety. I affirm the judgment of the National and State House of Assembly Election Tribunal of Ekiti State, dated 21st September, 2011.
No order as to cost.
SOTONYE DENTON-WEST, J.C.A.: I have the privilege of reading the judgment just delivered by my learned brother, Tom Shaibu Yakubu, JCA. He had in his characteristic way fully dealt with all the issues involved to my satisfaction. However, there were some issues that in my humble view, I will seek to highlight and contribute upon.
The Appellants, 1st and 2nd Respondent and 3rd and 4th Respondents were contestants and political parties on whose platform they contested in Efon constituency in Ekiti State House of Assembly Election which was held on the 26th day of April 2011. The Appellants were the Petitioners at the National and State House of Assembly Election Tribunal where the Appellants claimed against the Respondents the following;
1. An order of the Tribunal or Court that the Election is invalid for the reason of corrupt electoral process.
2. An Order of the Tribunal nullifying the Election for substantial non-compliance with the provisions of the Electoral Act
3. An order of the Tribunal for a Re-Run of the Election in Efon Constituency in Ekiti State House of Assembly Election which was held on the 26th day of April.
Parties filed and exchanged their Pleadings at the Tribunal and the Tribunal held on the 21st day of September 2011 that in conclusion, it is hereby ordered as follows:
1. The name of the 4th Respondent, the Peoples Democratic Party is hereby struck out of this Petition.
2.The Notice of Preliminary Objection brought by the 1st and 2nd Respondent fails in its entirety and is hereby dismissed.
3. This Petition fails in its entirety and is herby dismissed.
The Appellants were dissatisfied with the Judgment of the Tribunal and filed Notice and Grounds of Appeal. The grounds are;
1. The Learned Justices of the Trial tribunal erred in Law and misdirected themselves as to facts when they failed to nullify the Election and order a Re- Run into Efon Constituency House of Assembly having regard to the avalanche of believable and Oral and documentary Evidence tendered by the Appellants on the massive substantial non-compliance with the provisions of the Electoral Act 2010 (as amended).
2. The Learned Justices of the Lower Tribunal erred in law and misdirected themselves as to the facts of the case when he held thus:-
“Furthermore as no evidence was led on the documentary evidence tendered before the Court, as regard the allegation of noncompliance with the provisions of the Electoral Act 2010. The submission of the Learned Counsel to the 1st and 2nd Respondent that the said documents were simply ‘dumped’ on the Tribunal is not only vexatious but unassailable”.
3. The Learned Justices of the Lower Tribunal misdirected themselves as to the facts of the case in holding as follows;
“Upon the evaluation of the testimony of the witnesses it is evident that the testimonies of several of them were not only fraught with contradictions and inconsistencies but sometimes simply unavailable and untruthful”
4. The Learned Justice of the Lower Tribunal misdirected themselves on the facts of this case in holding thus;
“The Tribunal finds that the Petitioners failed woefully to discharge the burden of proof placed on them by proof that Electoral Offences were committed by the 1st and 2nd Respondents. The documentary of the 1st and 2nd Respondents” victory in the House of Assembly Elections in Efon Constituency held on the 26th day of April 2011, Forms EC8C(1) and EC8E(1), Exhibits R11 and R12 respectively stand unchallenged”.
5. The learned justices at the Lower Tribunal erred in law and misdirected themselves on the facts of the case in holding thus;
This Honourable Tribunal having earlier found that no evidence whatsoever was led by the Petitioners to prove the allegation of non-compliance with the provisions of the Electoral Act, 2010; if follows that the petitioners have not discharged the minimal burden of [proof placed on them against the 5th, 5th and 7th Respondents, this aspect of the Petition must also fail and is hereby dismissed”
Appellants thereafter prayed for the following reliefs;
1. An order allowing the Appeal
2. An order granting the Reliefs of the Appellants in the Petition.
3. An order nullifying the Election of the 1st Respondent as a member of the Ekiti State House of Assembly representing Efon Constituency.
4. An order for a fresh Election into the House of Assembly Efon Constituency.
All the parties filed their Briefs of Argument. The Appellants’ Brief was dated the 20th day of October 2011 and filed the same date. 1st and 2nd Respondents’ Brief of Argument was dated the 25th dry of October 2011 and filed the same date. The 5th and 6th Respondents’ Brief was dated 25th day of October 2011 and filed the same date while the Appellants’ Reply Brief was dated the 31st day of October 2011 and filed the same date. Similarly the Appellants filed a Notice of Preliminary Objection to the appearance of Oso Adetunji as Counsel to the 5th and 5th Respondents. It was dated the 31st day of October 2011 and filed the same date.
When the Appeal came for hearing on the 15th day of November 2011, the Appellants counsel, Owoseni Ajayi prayed this court to strike out the names of the 3rd and 4th Respondents from the Appeal and there was no objection from the other parties and the court struck the names out.
Owoseni Ajayi in arguing out the Appeal adopted his Briefs of Argument and prayed this Court to allow the Appeal and ask the parties to go back to the field to recontested.
Niyi Idowu on behalf of the 1st and 2nd Respondents adopted his Brief of Arguments and prayed the court to dismiss the Appeal and affirm the Judgment of the Lower Court.
Oso Adetunji, counsel to the 5th and 6th Respondents adopted he Brief of Argument and prayed the Court to dismiss the Appeal and he further contended that the preliminary objection brought by the Appellants against his appearance is incompetent for being in violation of Section 145 of the Electoral Act 2010.
The Appellants formulated a sole issue for determination and this is;
Whether the lower court was not in error in dismissing the Appellants’ case in view of the Pleadings and evidence before it.”
Counsel to the 1st and 2nd Respondents adopted the sole issue for determination and argued same, similarly the 5th and 6th Respondents also adopted the singular issue and argued same.
The appellants filed an Appellants’ Reply Brief to the 1st, 2nd 5th and 6th Respondents Brief of Argument and urged this Court to discountenance with the Arguments canvassed by the Respondents. Argument of Appellants sole Issue
Whether the lower tribunal was not in error in dismissing the appellants’ case in view of the pleadings and evidence before it.
The appellant counsel, Owoseni Ajayi Esq. gave a brief summary and facts of this case at the lower court. He argued that in six of the 12 units that is Ward 5 unit 1, ward 1 unit 7, ward 8 unit 11, ward 6 unit 13, ward 9 unit 7 and ward 8 unit 12, the respondents did not controvert or contradict the averments of the Appellant’s witnesses in those units as witnesses who knew nothing and were not present at the units were called as witnesses and in the other 6 units witnesses that were called gave feeble, contradictory and unbelievable evidence that cannot vitiate or contradict the evidence of the appellant’s witnesses in those units.
That since there was no evidence led to discredit the Appellants witnesses in those units, the witnesses evidence should be deemed to be the true in law. He referred to the cases of NEWBREED ORGANISATION LTD V GORHONNIONSELE (2008) 5 NWLR (Pt. 974) Pg 499 at Pg 527 AGBI V OGBE (2003) 8 NWLR Pt. 508 at 508 at Pg74 to buttress his argument.
Appellant further submitted that the six units that were left unchallenged by the credible witnesses from the Respondent are deemed admitted and the court is deemed to act on them. He referred to the cases of AGAGU V MIMIKO 2001 All FWLR Pt 492 1122 AT 1189 -1188 and EGON V ENO (2008) 11 NWLR Pt. 1098 at Pg32 at 336 to support his submission.
He further contended that the 5th and 6th Respondents did not file any reply to the petition at the lower court but that the court found in their favour.
Appellant further submitted that the lower tribunal acted inappropriately and erroneously because failure of the 4th Respondents to file Reply to the Petition at the Lower Court depicts that they did not join issues with the petitioner and have admitted the Petition. He further stated that admission by a party against his interest is the best evidence in favour of his adversary. He referred to the cases of ONYENYE V EBERE (2004) 13 NWLR (Pt 889) PG. 20 at Pg 39; T. F. A. INT LTD V LED MERCHANT BANK PLC (2005) 9 NWLR (Pt.930) Pg.274; ODI IYALA (2004) 8 NWLR (pt.875) PG.283 at Pg.308 to buttress his position and that failure of the 4th – 7th Respondents to defend the allegation against them in the Petition is fatal. He referred to the case of AJADI v AJIBOLA (2004) 15 NWLR Pt 898 Page 91 at Pg 164to buttress his Position.
He also referred to Section 149 (d) of the Evidence Act and the case of A.G. KWARA STATE v OLAWALE (1993) 1 NWLR (pt.12) pg. 236 to buttress his position . Appellants further submitted that there is an unholy uniformity in the deposition of the 1st and 2nd Respondent witnesses which points to the fact that they are concocted and devoid of reality. He referred to the cases of ESINGBEBO v THE STATE (1989) 4 NWLR pt. 113 pg. 57 at pg.83 and APOSI V THE STATE (1989) 5 NWLR pt. 122 pg 457 at 458 to buttress his position. Appellants further contended that they were able to establish that the election in all the polling units where elections were held particularly in the area where witnesses were called to establish that there was election were marred with non accreditation or improper accreditation. And he wants this court to hold that election in the constituency was generally vitiated by non compliance with the Electoral Act and other acts of malpractices.
He further contended that there was act of ballot box snatching and stuffing by agent of the 1st and 2nd respondents. He thereafter submitted that, the appellants have proven violence, thugery, intimidation, manipulation, wrong and conflicting entries in electoral forms and Sundry allegations against the respondents in his petitions. And that all he needs to proof should be on preponderance and sufficiency of evidence and not on standard of proof beyond reasonable doubt.
He referred this court to ONOH V OKEY (1995) 5 NWLR (Pt. 602) Pg.240 at Pg. 748 and OMOBORIOWO v AJASIN (1984) 1 SCNLR Pg. 108 to buttress his argument.
On dumping of evidence, appellant submitted that the holden of the lower court is erroneous; that the document referred to as dumped documents by the lower court are election materials pleaded and admitted by consent of parties and that they were referred to in the witness statement of the petitioners.
He further contended that the lower court ought to look into the documents and determine their veracity and value to be attached to them. He thereafter implored this court to invoke its statutory powers and come to the appropriate decision. He referred this court to the case of FAGUNWA V ADIBI (2004) 8 NWLR Pt.876 Pg 544 at Pg 610 Para D-F and DAGASH V BULAMA (2004) 14 NWLR Pt. 892 Pg 144 to buttress his position. He thereafter submitted that since the documents are relevant, pleaded and adopted in the witness statement of the appellants witnesses. The lower court ought to have looked into their probative values in the petition. He thereafter prayed this Honourable court to determine same.
On broken chain of electoral process, the appellants submitted that they were able to establish state of violence, thuggery and intimidation of voters that characterized the purported election held in the House of Assembly constituency, that the said election cannot be said to be lawful, valued or sustainable and he referred to the case of OSUNBOR V OSHIOMOLE (2009) All FWLR (Pt. 463) Pt 1363 at Pg 1405 to buttress is submission.
That for the House of Assembly election to be credible and lawful, it must follow an unbroken chain of synchronized events of the distribution of polling materials to actual election at the polling units through collations at the ward and constituency level for the elections to be lawful and legitimate, the chain of events must not suffer any disconnect as it happened in this election when the chain of events was broken by the unholy acts of the respondents.
On criminal allegations and standard of proof of same, the Appellants submitted that his case before the lower court was that there was no election known to law in his constituency because there was no accreditation properly done in accordance with the Electoral Act, that voters registers were arbitrarily ticked and that electorates were disenfranchised from exercising their voting rights and that their petition was not based on crime and that the onus of proof is on preponderance of Evidence on the balance of probabilities and not beyond reasonable doubt.
He thereafter submitted that the allegations in his petition are mere electoral malpractices which need not pass the furnace of proof beyond reasonable doubt. He referred to the case of OKUKROUMA V ANYOKORA (2006) All FWLR (Pt 302) Pg137 at Paragraphs E-H to buttress his case.
He thereafter submitted that some of the allegations are simply of wrong doings which do not amount to allegations of crime and that the law does not impose the burden of proving such as being beyond reasonable doubt contrary to the holding of the lower court.
He further submitted that the allegation of disenfranchisement of voters from the polling boots, completion of result forms without due accreditation among other procedural steps testified to by the petitioners witnesses fell within the purview of non- compliance with the Electoral Ac, 2010 which proof required is on the balance of probability and that if some of the allegations in the petition relates to crime, they have adequately proved the allegations beyond reasonable doubt and that proof beyond reasonable doubt does not mean proof beyond every shadow of reason. He referred to the cases of AGAGU V MIMIKO (2009) 7 NWLR Pt 1140 pg 342; and AREGBESOLA V OYINLOLA (2009) 7 NWLR (Pt. 1140) Pg 223 to buttress his case.
Appellants counsel stated that further to the above submission, that accreditation of voters in the Register of voters in the voting units and entering of results in forms EC8A were not done in accordance with the provisions of the Electoral Act.
He contended that a closer look at the signature of party agents on result sheets shows that one person signed for all the party agents and that there were not accreditation or election in some places.
He further argued that if the lower tribunal had looked painstakingly at the document adopted by the Appellants witnesses they would have reached a different decision. He referred this court to the case of NWEKE V EJIMS (1999) 11 NWLR Pt.625 Pg 39 at 53 to buttress his argument.
He thereafter submitted that the document they tendered established that there was substantial non- compliance with Electoral Act and this makes the election unsustainable in law.
On the shift of onus in electoral matters, the Appellants submitted that they have succeeded in proving that there was no election and that the onus shifts to the Respondents to show that there were elections properly conducted in the constituency. He referred to the cases of INEC V RAI (2004) 14 NWLR Pt 890 Pg 92 at 128-129 Paragraphs E-A AND AGAGU V MIMIKO (2009) 7 NWLR (Pt.1140) Pg 342 at 432 Paras B-C to buttress his argument
On the status and evidential value of duplicated form EC8A, EC8B and EC8C, tendered by the first respondent as PW 11 he submitted that the forms EC8A, EC8B, EC8C cannot be accorded probative value on the following grounds, that,
1. they are not original copies
2. the Respondents failed to produce the original copies of the forms when it has been established that they exist
3. The case of the Appellants is that there were no elections known to law in the constituency. This has shifted the onus on the Respondent to prove that there was election known to law by producing the voters Register among other materials like ballot papers in order to authenticate the claims of the Respondents that there was proper elections.
4. The duplicated forms EC8A and other documents tendered by PW11 are not clear or legible for reading, some are replete with alterations, some are not duly signed by the relevant officials of the 6th Respondent who purportedly issued them.
5. Some of the EC8A forms were not duly signed and stamped by the presiding officers and some were even undated, while others are totally blank.
He further contended that the lower court erred in law when he held that Exhibits tendered by RW 11 is evidence that the 1st and 2nd Respondents’ victory at the election stands unchallenged. He thereafter submitted that forms given to the agents of 1st and 2nd Respondents and tendered by RW 11 cannot be accorded any probative value against the backdrop of the above submission.
On who can properly tender election results, the Appellants submitted that where there is dispute on the authenticity of election results, what can be regarded as valid and credible results must come from INEC but this did not happen in the petition instead, INEC as the 5th and 6th respondents chose to admit the averments of the Appellants that the election was not properly conducted by them. The Appellants submitted that the 1st and 2nd Respondents did not conduct the election and therefore cannot argue to the contrary. He cited the cases of AMADASUN V ATIVIE (2001) All FWLR (Pt 505) Pg 1728 at 1799; LUCKY M. ABARAONYE V RAY EMEARA (2008) 10 NWLR (Pt 1095) Pg 496; OJORM V DUKE (2003) 14 NWLR Pt.814 Pg 581 to buttress his argument.
The appellants further submitted that their argument is further strengthened by the fact that the CTC obtained from the 6th Respondent were the manipulated resulted of the election hence the burden shifts on the Respondents to assert their genuineness and authenticity which they failed woefully to discharge.
On the conduct of the 7th Respondent (the Police) in the election, the appellants counsel submitted that the 7th Respondent were variously alleged of dereliction of duty and connivance in the electoral process. The Appellants further contented that virtually all the Appellants’ witnesses testified that the 7th Respondent abandoned their responsibilities on the day of the election and even sometimes connived with the perpetrators of the electoral fraud or just looked the other way while it subsisted and this fact was not denied or controverted.
On the issue of grounds of supporting nullification of the entire election and profer for a re-run. The appellants submitted that under the doctrine of substantial non-compliance and sufficiency of facts as effectively raised in the cases of OSUMBOR V OSHIOMOLE (2009) FWLR (Pt.463); AGAGU v. MIMIKO (SUPRA); FAYEMI v. ONI (supra), that if this court is convinced that there is substantial non-compliance with the conduct of the election in the units which spread all over the constituency, it enjoys the power to declare the whole election invalid and order a Re-run or a fresh election.
The appellants concluded their submission by stating that the Appellants have sufficiently established in the grounds of this Appeal that there was substantial non-compliance with the provisions of the Electoral Act, 2011 and hence deserve the reliefs sought in the Appeal for the following reason:,
I. The Appellants established the grounds of the appeal with credible and unassailable oral and documentary evidence to establish substantial noncompliance with the provisions of the Electoral Act.
II. The 1st and 2nd Respondents provided very weak incredible and unassailable defence to the Petition
III. The 4th – 7th Respondents admitted the facts against them in the petition by not filing any Reply to the Petition nor defend the Petition at all and he prayed this court to allow the appeal.
The 1st and 2nd Respondent submitted with humility that the issue that calls for determination in this appeal is as follows;
“Whether the lower tribunal was not in error in dismissing the appellants’ case in view of the pleadings and evidence before it”
The 1st and 2nd respondents argued that it is empirically clear from the facts of the petition in this appeal that the bulk of the complaint of the petitioners borders on crime such as multiple thumb printing of ballot papers and electoral violence, intimidation, harassment and bribery as shown in paragraphs 12 v (b), (viii) (ix),(xvii), (xix), (xxi), (xxii), (xxvi), (xvii),(xiv)while the petition equally complained of non-compliance with the provisions of the Electoral Act 2010(as amended) as contained in paragraphs 12 (xi),(xx), and (xxviii).
He further submitted that gleaning from the Petition, the fulcrum of the Petition shows that the appeal is heavily rooted in allegations of crime. The 1st and 2nd Respondents referred to Section 118 (1) (f)-(j) of the Electoral Act as well as Section 118 (2), 129(1) and 130 of the Electoral Act to buttress their position on the issue of criminal allegations and standard of proof of same, the 1st and 2nd Respondents also referred to section 138(1) of the Evidence Act and plethora of judicial authorities, the standard of proof required of the Petitioners in respect of all allegations of crime is proof beyond reasonable doubt. The 1st and 2nd Respondents also referred to Section 138(1) of the Evidence Act and the case of NWOBODO S ONOH (1984) Pg 17 SC NLR to buttress their position.
The 1st and 2nd Respondents further submitted that it is equally settled law that even when the petitioner by any chance succeeds in proving the commission of those crimes beyond reasonable doubt a further obligation is imposed on the petitioners, 1st and 2nd Respondents further submitted that the Petitioners must prove the alleged practice or offence in addition to the following.
a) That the 1st respondent personally committed the alleged crime aided or abetted the commission of the alleged corrupt practice or offence.
b) That where the alleged act was committed through an agent was authorized by the 1st Respondent.
c) That the alleged corrupt practice or offence affected the outcome of the election and how it affected it.
d) That but for the corrupt practice or offence, the Petitioner should have won the election.
The 1st and 2nd Respondents referred to the case of KALU Vs UZOR (2005) 8 NWLR pt 981 pg 68 at 87-88 Para H-D and AJADI VS AJIBOLA (2004) 18 NWLR Pt898 Pg 91 at 153- 164 Para H-B to buttress their position.
1st and 2nd Respondents further submitted that the evidence of all the witnesses fell short and below what the law required from a petitioners to sway the tide in their favour, the consequence of which is fatal and can only lead to the dismissal of the entire action as the Petitioner/Appellants have failed woefully to prove the allegation of crime or even link any of the 1st and 2nd Respondents to it.
On the issue of the allegation of Ballot stuffing as in this case, it is only when the ballot box is tendered before the Tribunal and opened before it for the content to be seen by everyone present in the Tribunal that the allegation of stuffing of ballot box made by the Petitioner can be said to be sustainable and referred to the case of HARUNA VS MODIBO (2004) 16 (NWLR (Pt 900) at 551 Paragraphs F-G P. 552, Paragraphs D-E.
1st and 2nd Respondents argued that the Petitioner/Appellant having failed to tender and open the ballot boxes they alleged were stuffed with thumb printed papers before the lower court Cannot persuade this court to hold in otherwise.
The 1st and 2nd Respondents further submitted that the Petitioners/Appellants have failed to lead credible and positive evidence of proof of their allegation that the election was disrupted and ballot boxes were hijacked and stuffed and urged the court to so hold.
The 1st and 2nd Respondent submitted that the petitioners/appellants have failed to lead credible and positive evidence of proof of their allegations and same were disputed that ballot boxes were stuffed and he urged this court to so hold.
The 1st and 2nd respondents further submitted that on the issue of forms EC8A tendered in Evidence which enjoyed presumptions of Regularity establishing that a proper election took place. The 1st and 2nd Respondent tendered in evidence all the forms EC8As in all the units making up the disputed units where election was held. These forms which were the duplicate copies issued to the agents of the 1st and 2nd Respondents are in law deemed to be the original of the electoral forms themselves and constitutes primary evidence of the outcome of the election and so can be tendered by the 1st and 2nd Respondent or whoever has custody of them and referred to the case of OBUN V EBUN (2006) All FWLR (Pt. 327) 419 1st and 2nd Respondents counsel further submitted that having tendered the forms EC8A, the onus shift to the Petitioners/Appellants to rebut the presumption raise by the tendering of the said forms
On the ground of Non-compliance with the provisions of the Electoral Act 2010 (as amended)raised by the Petitioners/ Appellants in Paragraphs 311 (a) (b), 12 (i) -(vii),12 (x)(xi) (xviii), (xx), (xxii)(xxiii) (xxvii)of the Petition, the 1st and 2nd Respondents submitted that the law recognizes that non-compliance with electoral provisions or commission of electoral offences do occur and they do occur in many instances but the law is more concerned with the extent to which they occurred and also how substantial the effect is on the result and he referred to the cases of WALI v BAFARAWA (2004) 16 NWLR (Pt. 895) 5 at 422 and Section 139(1) of the Electoral Act 2010 (as amended) ONUIGWE V EMELUMBA (2008) 9 NWLR (pt.1092) pg371 at 395 to buttress the position that minor/insignificant breach of the provisions of the Act cannot vitiate the election and also referred to the case of BUHARI V OBASANJO (2005) 13 NWLR (Pt941) 7 at 417-418
1st and 2nd Respondents further contended that the purpose of Section 139(1) of the Electoral Act 2010 (as amended) is to prevent an election from being invalidated on mere failure to comply with minor provisions of the Act which have no effect or do not substantially affect the outcome of the election, he referred to the case of BUHARI V OBASANJO (2005) 13 NWLR (Pt. 941) at 306, 308 and 311 to establish that the petitioners/Appellants have not proved beyond reasonable doubt that the criminal allegations in the Petition, and have failed to establish that the irregularities were substantial enough to have affected the conduct and result of the election nor established a link between the 1st Respondent and the person named in the petition as having perpetrated the criminal acts.
On the issue of dumping of documents, the 1st and 2nd Respondent contended that the petitioners/Appellants though generally pleaded non-compliance without tying it to any specific aspect of non-compliance as the Petitioner/Appellants pleaded what they believed were infractions on some INEC forms and documents without leading any evidence, oral or documentary at the trial in proof of the pleaded acts of non-compliance. The 1st and 2nd Respondents further submitted that though the petitioners applied and got CTC’s of some INEC forms and documents, the INEC forms and documents did not serve any useful purpose because all the petitioner/Appellants did was to dump all the documents though now marked as Exhibits before the Tribunal without demonstrating their use.
The 1st and 2nd Respondents further submitted that any person who produces documentary evidence in court has a duty to demonstrate and relate the documents to the aspect of his case as pleaded and contended that documents can only be used for a purpose for which it is tendered and referred to the case of AGBODIKE VS ONYEKABA (2001) 10 ENWLR Pt 722 at 576 particularly at 586 paragraph G; ANPP vs INEC (2010) 13 NWLR Pt 1212 Pg.413 at 597 Para A-B to buttress his position that the petitioners/appellants in an untidy manner dumped the bundle of documents before the tribunal without a word on what they want to do with it or what aspect of their case the document seeks to establish and no witness came before the lower tribunal to identify and demonstrate the Exhibits. The 1st and 2nd Respondents further contended that as a general principle of law documents speak for themselves to the extent that they cannot be varied or added to by oral evidence and not to the effect that party will not dump bundle of documents on a Court or tribunal and cited the cases of SULIVAN I. CHIME &ORS vs BARRTSTER OKEY EZEA &ORS (2009) 2 NWLR (Pt1125) 263 at Page 380-381 and TERAB VS LAWANI (1992) 2 NWLR (Pt. 231) 569; AWUSE V ODILI (2005) 16 NWLR (pt 952) page 416 at 510 to support their contention that this court should resist and refuses the Petitioners/Appellants invitation to start speculation or scrutinizing the bundle of documents dumped on the lower court without affording the Respondents the right to react and to cross-examine the petitioners/Appellants on the document and further cited the case of AUDU V INEC No.2 (2010) 13 NWLR (Pt.212 ) at Paragraphs F-H 1st and 2nd Respondents submitted that although the Petitioners/Appellants pleaded malpractices and irreconcilable differences on the forms tendered jointly as bundle of documents, the documents were not made use of at all as more of the petitioner/Appellants of their witnesses made reference to them and further submitted that the fact that the admissibility of Exhibits was not exposed to (at the pre-hearing) did not distract from the Petitioners duty of relation the exhibits to the aspect of their case as pleaded or what they want to do with it.
On the failure of the 5th and 7th respondents to defend the petition, the 1st and 2nd Respondents submitted that the appellants needs to make a solid case and succeed on the strength of its case and referred to the case of EGOM V ENO (2008) 11 NWLR (pt. 1099) 320 and that the Appellants fall into a deep error at page 18 and 19 of their brief when they confused witness with evidence in their interpretation of section 149 (d) of the Evidence Act as that document Section relates to document(s) withheld from court and not failure to present witness.
On broken of chain of Electoral process, the 1st and 2nd Respondents contended that the issue was not raised at the lower court and it is too late in the day to bring it up now and further submitted that no chain of electoral process proved broken in view of the admission without ejection of Exhibits RW1 -RW12 which is the units and overall collection results and final declaration of results for the Ekiti state House of Assembly Afon constituency.
On the issue of evidence on how the malpractices and non-compliance affected the election, the 1st and 2nd Respondents submitted that it is a long settled principle of law that in an election petition, the Petitioner in order to succeed must first establish the malpractices and non-compliance complained of and then show how the criminal allegations, non-compliance and malpractices alleged had affected the election substantially. That out of the 119 units, the Petitioners are specifically challenging about 14 units and only led evidence in respect of 12 and that it is incumbent upon the Petitioners/Appellants to show statistically by evidence of votes how the affected votes has affected the results of the election and that this is an obligation that a petitioners must discharge and referred to the cases of MOHAMMED BUHARI & ANOR VS CHIEF OLUSEGUN OBASANJO &ORS (Supra); AWUSE VS ODILI (2005) 6 NWLR (Pt 952) 416 at 500 Paragraph; ELIAS V OMO-BARE (1982) JSC 25 at 4647, RIMI v. INEC (2005) 6 NWLR (pt.920) 56 at 84, paragraph G to buttress their position that the Appellants have failed in this regard.
1st and 2nd Respondents further submitted that the conception, filing, service, calling of witnesses and tendering of documents which were merely dropped on the Tribunal, the appeal like the petition was destined to fail having not been properly conceived and delivered still-birth should be given the unceremonious burial it deserves and that the petition should be dismissed with substantial costs for the following reasons;
a. The petition/Appellants conceded that election took place in 119 (one hundred and nine units), challenging 14 (fourteen) units and called witnesses in Twelve units.
b. In law they are deemed to have conceded that no infraction affected the other to units
c. In the twelve units where they called witnesses, one of the units result was cancelled by INEC
d. They failed to prove any incidence of non-compliance as they did not link the documents dumped on the tribunal to establish the said alleged infractions
e. All allegations bordering on criminality were not proved at all or beyond reasonable doubt.
f . That the allegations were not linked to the 1st and 2nd Respondents
g. That the presumption of regularity which the election enjoyed by virtue of the fact that Petitioners/Appellants conceded that there was in fact and in law an election held should not be disturbed since there is nothing before the court to rebut the presumption.
On the issue whether the proceedings in this petition has not been fundamentally violated by the failure of the Petitioner to bring a proper application for prehearing in accordance with Para(s) 18 (1-10) and 47 (1&2) of the 1st schedule to the Electoral Act and having regards to such defect, whether the Tribunal had not been robbed of jurisdiction to adjudicate over the petition, the 1st and 2nd Respondent submitted that the issue relates to and touches on jurisdictions of the tribunal. The 1st and 2nd Respondents further submitted that it is well-known that filing of pre-hearing application is a jurisdictional matter in election Petition and referred to Section 18 (1-10) first schedule to the Electoral Act 2010 (as amended) to buttress his position.
1st and 2nd Respondents further submitted that failure to comply and observe the procedure of filing, applying for pre-hearing sessions vitiates the jurisdiction of the Tribunal and that parties cannot by consent, waiver or acquiescence jurisdiction on a court or Tribunal because the legal implication is that the Tribunal is divested of jurisdiction and referred to the wordings of Section 18(1) of the Electoral Act 2010 that “…the petitioner shall apply…” and sub-paragraph 2 to the effect that upon application by a petitioner under sub-paragraph (1) to buttress his position that the operative words here are “shall apply” and “upon application” and that Election Petitions are suit sui generis, time bond and strictly procedural and failure to comply with the stated procedure is fundamentally fatal to the competence of any petition. 1st and 2nd Respondent further argued that the essence of the various amendments in the Electoral Act 2010 is to ensure speedy disposal of Electoral Petitioners and therefore does not give room for any unserious, unpardonable irregularities, non-compliance and non-observance in breach of the Electoral statute.
The 1st and 2nd Respondents further contended that where the word “shall” is used in a statute, it imposes a mandatory obligation as this has been settled in a plethora of cases citing ARARUME VS INEC (2007) 9 NWLR (Pt.1038) 127 at 160 paragraph E; ACHIENEKY VS ISHOLA (1988) 4 NWLR (Pt 89) 411 at 420; AHAMBELE VS IMPERIAL MEDICAL CENTRE (2005) 5 NWLR (Pt 917) 51AT 61 paragraphs G & H; OJU L.G. VS INEC (2007)14 NWLR (Pt 1054) 242 at 263-264 paragraphs D-H; ABIODUN VS A. G. FEDERATION (2002) 15 NWLR (Pt. 1057)359 at 396, Paragraph G; RIRUWAI VS SHEKARAU (2008) 12 NWLR (1100) 142 at 159 Para F-G to buttress their positions. That the applications for the issuance of prehearing notice dated 13th for 2011 (as can be found on page 180 of the records) cannot qualify the application for pre-hearing session envisaged by Sections 18 (1 & 2) and 47(2) of the First schedule to the Electoral Act 2010 (as amended) as the said document is a letter and not an application as prescribed by the Electoral Act as it falls short of the Standard provided and manner prescribed and that such non-compliance robbed the lower court of its jurisdiction to entertain same, and determine the petition and all acts done or performed subsequent to the noncompliance was tantamount to a nullity and dismissal of the Petition for lack of jurisdiction and cited the case of EDUM VS ODUM COMMUNITY (1981) 8-11 SC 103 at 117 and WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) NSCC (VOL. 13) 36 to buttress their position.
The 1st and 2nd Respondents further contended that what was disobeyed was not just a procedural rule but a substantive law and this rendered the pre-hearing notice devoid of competence and this divested the Tribunal of jurisdiction to entertain the petition and referred to the cases of ALI VS OSAKWE (2009) 14 NWLR (PT 1150) 75 at 149; ORJI VS PDP (2009) 14 NWLR (Pt 1161) 310 at 405 OGUNSAKIN vs AJIDARA (2008) 6 NWLR (Pt 1082); IKIRO VS IZUNASO (2009) 4 NWLR (pt 1130) 45 at 59; AMAECHI VS INEC (2008) 5 NWLR (Pt. 1080) 227 at 318 to support their position and further submitted that where the provisions of a statute is clear and unambiguous, they require no resort to any cannon of interpretation or construction but they must be read in their plain and ordinary words which gave their best meaning and referred to the case of BUHARI VS OBASANJO (2005) 2 NWLR (Pt. 910) 241 in urging this Honourable court to dismiss this appeal on this ground and hold that the tribunal lacks the prerequisite vires or power to entertain the petition and dismiss same with substantial cost and sustaining and or affirming the well reasoned and legally sound decision of the Tribunal.
5th and 6th respondents sole Issue as adopted.
Counsel to the 5th and 6th respondents in their respondents’ reply brief reviewed the evidence as given in the lower court on ten pages and the singular issue for determination as adumbrated by them was argued on four pages they adopted the issues as formulated by the appellants to wit.
Whether the lower tribunal was not in error in dismissing the appellants’ case in view of the pleadings and evidence before it.
The 5th and 6th respondents’ counsel submitted that the complaint of the appellants was basically criminal allegation and non compliance and that to succeed on criminal allegation, it must be proved beyond reasonable doubt. He referred to Section 138(1) of the Evidence Act and the case of CHIME V ONYIA (2009) 7 NWLR (Pt. 1125) 263 at 355, they further contended that he who asserts must prove.5th and 6th respondent further submitted that the appellants never said election did not take place but that it was marred with irregularities and that the appellants cannot turn round to say there was no election. He referred to the cases of NWOBODO V ONOH (1984) 17 SCNLR and KALU V UZOR (2005) 8 NWLR (Pt 981) 58 at 87-88 to buttress his argument. He thereafter concluded that the evidence proffered by the appellants did not meet the requirement of the law.
On allegation of ballot stuffing, respondents argued that the appellants abandoned the allegation and that for the appellants to prove ballot stuffing the ballot boxes must be brought before the tribunal and opened to demonstrate the alleged ballot stuffing and that this was not done by the appellants. He referred to the case of HARUNA V MODIBO (2004) 16 NWLR (Pt 900) 551 e 552 to buttress his argument.
On presumption of regularity of election forms and result tendered, the respondents contend that the electoral forms/result EC8A, EC8C, and EC8E tendered by the 1st respondent enjoyed the presumption of regularity and that if the appellants wanted to counter it they ought to bring one that will contradict it and establish that they cannot be relied upon. He referred to the cases of NWOBODO V ONOH (1984) 15 NSCC 1; TORTI V KABI (1984) 15 NSCC 1 and OBEMBE V EVELE (2001) 10 NWLR (Pt. 722)- 677 at 693- 694 to buttress his argument.
On the allegation of non compliance with the provisions of the Electoral Act raise by the appellants, the respondents argued that it is trite that instances of non compliance do occur but the main thing is how far and wide it affects the election.
He referred this court to the case of WALI V BAFARAWA (2004) 15 NWLR (Pt 895) 5 at 422 and Section 139(1) of the Evidence Act to buttress h is argument and submission. He further reiterated that for a petitioner who alleges non compliance with the Electoral Act, he must prove;
a. That the election was not in compliance with the Electoral Act 2010 and
b. That the non-compliance with the provisions of the Electoral Act substantially affected the result of the election.
He referred to the cases of ONVIGWE V EMELOMBA (2008) 9 NWLR (Pt 1092) 371 e 395 and BUHARI V OBASANJO (2005) 13 NWLR (Pt 941) 1 at 417- 418 to buttress his argument. Respondent further contended that apart from failure to prove non-compliance, they did not also show how their imaginary noncompliance affected the result of the election. He stated that there are 1-19 units in the constituency, that the appellants challenged 15 units of the entire units that witnesses were called in 12 units and that some of the units challenged were won by the Peoples Democratic Party who came second in the election, that the appellants came distant third and that if all the units challenged by the appellants were cancelled, it will not change the victory of the 1st and 2nd respondents.
On dumping of document, counsel to the 5th and 6th respondents argued that the appellant failed to link the document tendered with the case at hand. He referred to the case of AGBODIKE V ONYEKABA (2001-) 10 NWLR (Pt 722)- 575 at 588 to buttress his position that the document should not be given any value.
5th and 6th respondents’ counsel argued that on the ground that 4th -7th respondent refused to defend the petition at the lower court. He contended that it is only when the appellants have made out a case that the failure of the 4th and 7th respondents to defend will have any effect in that the appellants must succeed on the strength of their case and that it is only after that, that the onus of proof can change. He further surmised that, it is also evidently clear that there is no proof of broken chain of electoral process as the witnesses to the 1st and 2nd respondents duly testified to and given added validity by the election results, he thereafter prayed this court to dismiss the appellants appeal.
The Appellants’ Counsel replied the two respondents’ brief and prayed this court to discountenance with the argument and submissions of the two sets of respondents.
On the other leg, the Appellants counsel argued that they filed a Notice of preliminary Objection in respect of the impropriety of Oso Adetunji Esq., who actively participated as counsel to the 1st and 2nd Respondent at the Lower Tribunal. That it was Oso Adetunji that briefed himself on behalf of the 5th and 6th Respondents just to deceive this Court. That the Osho of Counsel was not briefed nor given the fiat to appear for the 5th and 6th Respondents and that such service cannot be given pro Bono. He referred to the case of Provost LACOED V EDUN (2004) 6 NWLR (PT 870) 476 at 495-496 to buttress his case. He thereafter argued that the sole issue should be resolved in appellants favour.
RESOLUTION OF THE SOLE ISSUE
The singular issue will be determined vide the minor headings;
All the parties agreed that there are about 119 Polling Units in the Constituency being challenged, that the Appellants complained of non-compliance in respect of 11 polling units and leaving 108 polling Units without complaint.
I quite agree with the Appellants that where evidence is not led to discredit the Appellants witness, the evidence are deemed to be true in law. See EGOM V ERO (2008) 11 NWLR (PT. 1098) 320 at 336; NEWBREED ORGANISATION LTD V ERHONMONSELE (2006) 5 NWLR Part 974) 499 at 527 and AGBI V OGBE (2008) 8 NWLR (Pt. 508) 74 and AGAGU V MIMIKO (2004) All FWLR (pt.492) 1122 at 1189.
The finding of this Lower court that:
“This Honourable Tribunal having earlier found that no evidence whatsoever was led by the petitioners to prove the allegation of non-compliance with the provisions of the Electoral Act 2010, it follows that the Petitioners have not discharged the minimal burden of proof placed on them against the 5th, 6th and 7th Respondent “To my mind the holding is accurate and reasonable in respect of the above reasoning.
A party is free in a civil action not to defend his case but however the onus of proof is always on the claimant or petitioner to prove his case on a preponderance of evidence and it is only when this has been established that the defendant can be called upon to rebut same. In this case the onus has not been proved talk less of it shifting.
On the issue of dumping of documents as held at the lower court and argued by all the parties, in Election petitions documents are frontloaded and it is expected that during trial, the frontloaded document should be linked or connected to the evidence and pleadings in Court. No court or Tribunal will take it upon itself to link, connect or tie a document to a specific aspect of a case for a party. A court or tribunal will not consider a document that is dumped on it without anything. See AGBODIKE V ONYEKABA (2001) 10 NWLR (pt.722) 576 at 588, ANPP V INEC (2010) 13 NWLR (pt 1212) 431 at 599, AUDU VINEC (No. 2) 2010 13 NWLR Part 1212; TERAB V LAWANI (1992) 2 NWLR (Pt. 231) 559; AWUSE V ODILI (2005) 16 NWLR (Pt. 952 and TERAB V LAWANI (1992) 2 NWLR (Pt.23) 569.
In the instant case, though the Appellants who were the Petitioners at the lower court pleaded malpractices and irreconcilable evidences on Forms EC4-0C, FORMS 8A(1), FORMS EC8B(1), FORMS EC8C(1) etc Forms EC8C and FORMS EC40C were never produced in evidence at all. FORMS EC88A(1), FORMS EC8B(1) tendered jointly as bundle of documents were not made use of at all as none of the Appellants witnesses made reference to them, thus the holding of the lower court that the documents were dumped before it is in order.
It is trite that a document tendered in court is like any evidence before a trial court, subject to scrutiny on the lines of the evidence proffered in court to ascertain his evidential value, but the document must be linked to the evidence, there must be linkage as you cannot put something on nothing as a document cannot be pleaded at large.
The preponderance of Evidence or balance of probabilities is the standard required by law of allegations or (pleadings which do not involve the commission of a crime. In election petitions, allegations of crime of criminal nature made in election petitions are to be proved beyond reasonable doubt. In other words, the standard of proof required by law for allegations of a crime in an election petition is proof beyond reasonable doubt. It is trite that the burden of proof in criminal cases is proof beyond reasonable doubt, however beyond reasonable doubt does not mean beyond every shadow of doubt. see NWOBODO V ONOH (1984) Page 17 SCNLR; KALU v OZOR (2006) 8 NWLR (Pt 981) 68 at 87-88 and AJADI v AJIBOLA (2004) 18 NWLR (pt. 898) 91 at 163-164.
On page 10 of the Record of Proceedings, the Appellant avers in Paragraph xxi, thus:
‘Your petitioners will contend that the constituency collation centre was marred with violence and thuggery activities engineered by the agents of the 1st and 2nd Respondents who eventually seared away the agents of the Petitioner”
It is not in doubt that the Appellants had the burden to prove their allegation of Electoral offences beyond reasonable doubt, since they bothered on criminal acts.
See WALI v. BAFARAWA (2004) 16 NWLR (pt. 898)1 and AJADI V MODIBBO (2004) 16 NWLR (Pt. 9000) 487.
Where there is a complaint about violence and thuggery in an election petition a link must be established between the alleged perpetrators and the Respondents by credible evidence.lt must also show that the act adversely affected the conduct of the election.
The Judicial authorities cited by the Appellants does not have bearing with this present case and it will be discountenanced appropriately. The criminal allegation led by the complainants was not proved beyond reasonable doubt.
The apex court has reiterated that the burden of proof in or pleadings in an election petition is on the party who alleges affirmatively that election took place. See FAYEMI v. ONI (2009) 7 NWLR (Pt.1140) 223. I agree with the submission of the Appellants that where the petitioners succeeded in proving that there were no election held in accordance with the provisions of the Electoral Act the onus shifts to the Respondents to show that there was election properly conducted in the constituency. see INEC v RAY (2004) 14 NWLR (Pt. 892) 92 at 128 and AGAGU V MIMIKO (2009) 7 NWLR (pt. 140) 342 at 432
However, in the case at hand, the Appellants have failed to prove the onus on them to show that there was no election or that the election was flawed with irregularities.
It will be inappropriate and against reasoning to hold that the evidence of 11 witnesses would vitiate the elections in 119 polling units of the constituency.
On the status and evidential value of duplicate Forms EC8A, EC8B and EC8C tendered by the 1st Respondent. It is trite that relevancy governs admissibility and the lower court was right in the value attached to the Exhibits. See OBUN V EBUN (2006) ALL FWLR (pt. 327) 419.This same holding is applicable to who can properly tender Election Results.
The singular issue for determination which is whether the lower tribunal was not in error in dismissing the appellants’ case in view of the pleadings and evidence before it. Over voting, stuffing of ballot boxes, allocation of votes, irregularities, and any other vices at election that constitute non compliance with the provisions of the Electoral Act if proved will invalidate an election. However the law is clear that non observance of the rule or principles stated under the Act such that would grant to conducting an election in manner contrary to the principle of an election by ballot and must be so grave as to satisfy the court that it did affect the result of the election see BUHARI V OBASANJO (SUPRA)
The appellants herein clearly failed to place fact to establish how the noncompliance in about 12 units substantially affected the result of the election.
Flowing from the above, the law as it stands requires the petitioner after establishing the substantial non compliance occasioned by breach of the Electoral Act, to go ahead and prove that the non compliance with the provisions of the Electoral Act, the petitioner must prove not only that there was non- compliance with the Electoral Act but that the non compliance substantially affected the result of the election.
The decision reached by the lower court was in order. Thus the issue is resolved in favour of the respondents. Based on the above findings in this appeal, I also hold that this appeal failed, and it is hereby dismissed. Accordingly in view of the forgoing and indeed the overwhelming votes in favour of the 1st and 2nd Respondents, Ogundele Gabriel is hereby declared the winner of the election of house of assembly election, Efon constituency.
OBANDE OGBUINYA, J.C.A.: I was privileged to read, in draft, the leading judgment delivered by my learned brother, Tom S. Yakubu, JCA, and I am in complete agreement with his reasons and conclusions. There is no jot of merit in the appeal. I, too, visit dismissal on it, I abide by the orders made in the leading judgment.
Appearances
Owoseni Ajayi with Simeon Nyimone & Isiah AnubiFor Appellant
AND
Niyi Idowu with Lawal Alabi & Stephen Ademuagun for the 1st and 2nd Respondents.
Oso Adetunji for the 5th and 6th RespondentsFor Respondent
