CAPT. ENO UTUM INAH (RTD.) & ANOR v. MR. ETENG JONAH WILLIAMS & ORS
(2016)LCN/8096(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of January, 2016
CA/C/NAEA/287/2015
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTS TENDERED BEFORE A COURT AT TRIAL ARE PART AND PARCEL OF THE EVIDENCE TO EB CONSIDERED IN THE DETERMINATION OF ISSUES BEFORE THE COURT
Additionally, it is trite law that documents tendered before a Court at the trial of a case are part and parcel of the evidence to be considered in the determination of issues before the Court and are made subject to the scrutiny of the Court, being tested for credibility and the weight to be attached thereon; per Okoro, JSC in Ekong v Otop (2014) LPELR- 23022 (SC), (2014) 11 NWLR (Pt.1419) 549 at 573 S.C. per. ONYEKACHI AJA OTISI, J.C.A.
ELECTION; THE MEANING OF ELECTION AND THE STEPS IN AN ELECTION
An election is the process of choosing by popular votes a candidate for political office in a democratic system of government; per Adekeye, JSC in Marwa v Nyako (2012) LPELR-7837 (sc) (CON). The process of election includes the accreditation of voters, the voting, collation, recording on all relevant INEC forms and the declaration of result; Oke v Mimiko (2013) LPELR-21368 (SC); Fayemi v Oni (supra) also reported in (2010) LPELR-4145 (CA); Okoye v INEC (2010) LPELR-4728 (CA). Collation of results must be concluded before the result can be declared. That step cannot be jumped in the election process. The end of the process is the issuance of certificate of return to the successful candidate; Yardua v Yandoma (2014) LPELR-24217 (SC). per. ONYEKACHI AJA OTISI, J.C.A.
ELECTION: CERTIFICATE OF RETURN; WHEN IS A CERTIFICATE OF RETURN ISSUED
By virtue of Section 75(1) of the Electoral Act, 2010, as amended, a Certificate of Return is issued within seven days to every candidate who has won an election. In other words, the Certificate of Return is issued at the conclusion of the election. The Certificate of Return cannot be issued without the election process being completed with the collation of results.
In the recent case of Onjeh v Mark (2015) LPELR-25974 (CA); this Court found that as at 29/3/2015 collation for nine Local Governments making up Benue South Senatorial District had not been concluded or completed when the Returning officer purportedly returned the 1st Respondent therein as elected on 28/3/2015. This act was found to be in breach of the provisions of Sections 73 and 74 of the Electoral Act, as well as in breach of the manual and guidelines for Election for INEC Officials, 2015. This Court therefore held as being void the declaration of the result of the election in issue therein, before collations were concluded. per. ONYEKACHI AJA OTISI, J.C.A.
PRACTICE AND PROCEDURE: WHETHER WHERE A STATUTE LAYS DOWN A PROCEDURE FOR DOING A THING THERE SHOULD BE OTHER METHOD OF DOING IT
It is well settled that where a statute provides for a particular procedure or method for performing any act, no other method or procedure can be employed. In MEGA progressive peoples Party v. INEC (2015) LPELR-25706 (SC), the Supreme Court, per Muhammad, JSC succinctly put thus: “Certainly, when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by legitimate authority, then whatever is done in contravention, it amounts to nullity.”
See also: NNPC v Famfa Oil Ltd LPELR-7812 (SC) (Consolidated); University of Calabar Teaching Hospital v Bassey (2005) LPELR-8553 (CA). The evidence adduced before the Tribunal proved unequivocally that the 2nd and 4th Respondents failed to comply with the provisions of the Electoral Act as well as the provisions of the Election Manual and Guidelines for the 2015 General Elections, made pursuant to the provisions of Section 153 of the said Electoral Act. per. ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
CAPT. ENO UTUM INAH (RTD.)
LABOUR PARTY (LP) Appellant(s)
AND
MR. ETENG JONAH WILLIAMS
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
PEOPLES DEMOCRATIC PARTY
RESIDENT ELECTORAL COMMISSIONER, CROSS RIVER STATE Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): ?In the election into the Cross River State House of Assembly, Yakurr 11 State Constituency which held on April 11 and 25, 2015, the 1st Appellant, representing the 2nd Appellant, and 1st Respondent, representing the 3rd Respondent, were candidates. The 1st Respondent was declared winner of the election on April 25, 2015. Dissatisfied with this result, the Appellants filed a petition before the National Assembly and State Houses of Assembly Election Tribunal, Calabar on the grounds that:
i) The 1st Respondent was not qualified to contest as at the time of the election;
ii) The election was marred by reason of corrupt practices and non-compliance with the provisions of this Act;
iii) The 1st Respondent was not duly elected by majority of lawful votes cast at the election.
The Appellants then sought the following reliefs:
i) That it may be determined and doth declared that the 1st Respondent was not qualified to contest the general elections of 25th April, 2015 for the office of Cross River State House of Assembly for Yakurr II State Constituency;
ii)?That it may be determined and doth declared that the nomination and election of the 1st Respondent in the general elections of 25th April, 2015 for the office of Cross River State House of Assembly for Yakurr II State Constituency be nullified; or
iii) AN ORDER declaring the 1st Petitioner as the winner of the general elections of 25th April, 2015 for the office of Cross River State House of Assembly for Yakurr?II State Constituency, having scored the majority of the lawful votes cast in the said election;
iv) That it may be determined doth declared that the nomination, election and return of the 1st Respondent for the office of Cross River State House of Assembly for Yakurr II State Constituency election of 25th April, 2015 are vitiated by malpractices, widespread acts of non-compliance and massive rigging.
The petition was heard and the lower Tribunal on November 11, 2015 delivered its judgment dismissing the Appellants’ petition. Aggrieved by the said judgment of the lower Tribunal, the Appellants lodged the instant appeal by Notice of Appeal filed on November 30, 2015 upon twelve grounds of Appeal.
?The Appellants filed their Brief of
Argument on December 16, 2015.
The 3rd Respondent filed its Brief of Argument on December 21, 2015. These Briefs were adopted on December 22, 2015 by E. E. Osim, Esq., learned counsel for the Appellants and J. U. Ugbong, Esq., learned counsel for the 3rd Respondent. Mba E. Ukweni, Esq., learned counsel for the 1st Respondent; and, P.O. Ebiala, Esq., learned Counsel for the 2nd and 4th Respondents, who had not filed any Brief of Argument, sought leave of Court to make oral submissions in reply, which applications were granted.?
?The Appellants had distilled the following five issues for determination:
i) Whether the return of the 1st Respondent by the 2nd and 4th Respondents certificate of return issued on the 13th day of April, 2015 before the conclusion of the election of the 25th day of April, 2015 is not conclusive prove of non-compliance with the provisions of the electoral Act, 2010 (as amended) and the said certificate constitute evidence against the interest of the Respondents? Ground 1.
ii) Whether the standard/burden of proving civil and/or criminal allegations are the same in an election petition and if not, whether the lower
trial Tribunal evaluation of the evidence of the parties to the Petition at the lower Tribunal is not perverse and thereby occasion a miscarriage of justice on the Appellants? Grounds 2, 7, 8 and 12.
iii) Whether by virtue of Section 141 of the Electoral Act, 2010 (as amended) and the case Of Usman Vs. Dangana (2012) All FWLR (Pt. 627) 617 the conduct of the 3rd Respondent’s primaries is an intra-party affair of the 3rd Respondent for which the Appellants cannot question as a ground of qualification to contest the election? Ground 3.
iv) Whether the Tribunal was not bound to interpret the mandatory provision of Section 31 (1) and (2) of the Electoral Act, 2010, (as amended) and follow the case of Usman Vs. Dangana (2012) All FWLR (pt. 627) 617 without more? Grounds 5 and 9.
v) Whether the lower Tribunal failure to pronounce on all the issues raised and placed before it by the Appellants is not tantamount to a denial of fair hearing which occasioned a miscarriage of justice on the Appellants?
Grounds 6, 10 and 11.
?In the light of the issues formulated for determination and having regard to the submissions of respective
Counsel, it is expedient as a preliminary issue, to consider Issue No 1 as formulated by the Appellants.
It was submitted for the Appellants that there is a presumption of law that a certificate is conclusive proof of what it contains. Exhibit 25 RA 10, the Certificate of Return, issued by the 2nd and 4th Respondents returning the 1st Respondent as the winner of the election of April 11 and 25, 2015 is conclusive as to the fact that it was issued to the 1st Respondent on April 13, 2015 without more. That it is also conclusive as to the fact that as at the said April 13, 2015 it was so issued to the 1st Respondent; the election into the State House of Assembly for Yakurr II State Constituency had not yet been concluded; pages 417 – 421 of the Record of Appeal. Reliance was placed on Fasogbon v. Loyade & 4 Ors. (1999) 11 NWLR (Pt. 628) 543 at 561; and on the provisions of Section 157 of the Evidence Act, 2011 which provides that:
When any document bearing a date has been proved, it is presumed to have been made on the date it bears and more document than one bears date on the same date, they are presumed to have been executed in the order
necessary to effect the object for which they were executed, but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might to practiced, and would, if practiced, injure any person or defeat the object of any law.
It was further submitted that by the Election Manual and Guidelines for the 2015 General Elections, made pursuant to Section 153 of the Electoral Act, 2010 (as amended), the result of any election is collated from the polling units Forms EC 8A(i) down to the wards collation centre Forms (EC8B(i) or Registration Areas to the constituency or Local Government collation centre Forms EC SC(i), as the case may be, to the declaration of result by the returning officer Forms EC 8E(i) before the winner will be issued a certificate of return finally and not the other way round. The facts leading to the return of the 1st Respondent indicated and showed breach of the said Election Manual and Guidelines; relying on Fayemi vs. Oni (2009) NWLR (Pt 1140) 223 at 285 – 286. It was submitted that the issuance of certificate of return to a candidate before the date of the conclusion of the
election is fatal and evidence of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual and Guidelines for the Elections. It was not in evidence that the certificate of return was wrongly dated or that it was issued after the declaration of the results on April 25, 2015 and that assuming without conceding there was any such evidence, it would not be of any assistance to the party as it is the law that oral or parole evidence cannot be used to contradict or vary the contents of a written document; relying on Olanleye vs. Afro Continental (Nig.) Ltd (1996) 7 NWLR (Pt 458) 29 at 40. It was also submitted that the certificate of Return, Exhibit 25 RA 10, need not be pleaded by the Appellants before it can be used by them. Being a party, the Appellants can make use of a document and/or evidence relied upon by their adversary, especially if the same constitutes evidence against the interest of the said opponent as in this case. Learned Counsel for the Appellants contended that the date of issue of the said Exhibit 25 RA 10 supported the Appellants’ case as proof of irregularities and non-compliance with the provisions
of the Electoral Act, 2010 (as amended) and the manual and guidelines for the elections. It is the contention of the Appellants that the lower Tribunal erred when it observed at pages 574 – 575 of the Record of Appeal that the Appellant did not make the issue of the certificate of return a part of their case. That the Appellants were not bound to do so as the said Exhibit 25 RA 10 supported the case of the Appellants. It was finally submitted that a certificate of return cannot pre-date the date of the election for which it is to be predicated upon; and that from the facts before the lower Tribunal the result of the election of April 25, 2015 was a charade and a fait accompli. The Court was urged to resolve this issue in favour of the Appellants; allow the Appellants’ appeal on this ground and set aside the judgment of the lower Tribunal.
The Respondents respectively submitted that parties are bound by their pleadings. The Appellants never raised the issue of the validity or otherwise of the certificate of return. It was not pleaded and therefore not a live issue before the lower Tribunal. It only came up during the cross examination of RW6. The lower
Tribunal was right to have held that parties are bound by their pleadings. Mr. Ukweni for the 1st Respondent further submitted that the Certificate of Return did not stand on its own but on the totality of the result of the election as as collated. The Appellants had not shown that the results as collated did not tally with the Certificate of Return, Exhibit 25 RA 10.
RW6 was an agent of the 3rd Respondent during the election in issue herein. He tendered under cross examination the Certificate of Return Exhibit 25 RA 10, dated April 13, 2015; pages 418-419 of the Record of Appeal. It is not in dispute that the elections in issue for which the Certificate of Return was issued had not been concluded as at April 13, 2015. In fact Rw7 testified under cross examination by 1st Respondent at page 420 of the Record of Appeal thus:
“I voted at polling unit 003 Court primary School Ekon Agoi…Mkpami/Agoi is the largest ward with 32 polling units with 4 additional voting centers. It was on the 25/4/2015 that this election took place.”
At page 421, RW7 further stated under cross examination by the Appellants as petitioners:
“…the 1st Respondent
was declared winner on 25/4/2015. In Exh. 25RA10 the date on it is 13/4/2015.”
In its consideration of the contentions over Exhibit 25RA10, the lower Tribunal said at pages 574-575 of the Record of Appeal:
“We are in agreement with the position of Learned Counsel for the 1st Respondent that the Petitioners did not make issue of Certificate of Return as part of their case and they are therefore bound by what is contained in their pleading. See Buhari v. Obasanjo (supra). The petitioners cannot merely hinge their case on the date on the Certificate when they led no evidence to challenge the results of the election on the basis of which the Certificate was issued.
Consequently Ground 11 of the Petition that the election was marred by corrupt practices and non-compliance with the provisions of this Act has not been substantiated by any evidence other than the inadmissible hearsay evidence of the 1st Petitioner and therefore resolved against the Petitioners.”
There is no doubt that parties are bound by their pleadings and thus evidence of facts not pleaded would go to no issue; Shell B.P. Ltd v. Abedi (1974) 7 S.C. 16; Ajayi v Texaco Nigeria Ltd
(1987) 9-11 S.C. 1; Agala v Okusin (2010) 10 NWLR (PT 1202) 412 S.C.
?However, one must not lose sight of the fact that issues are joined in pleadings, and not the evidence; Bamgboye v University of Ilorin (1999) 6 S.C (PT 11) 72. Evidence adduced must therefore be in line with the pleadings and if the evidence is at variance with the pleadings, it must be ignored.
One of the grounds upon which the petition of the Appellants was predicated was that:
The election was marred by reason of corrupt practices and non-compliance with the provisions of this Act.
See Paragraph 13 (ii) at page 6 of the Record of Appeal. Therefore, any complaint that the election in issue was marred by acts which fall outside the parameters of the provisions of the Electoral Act, 2010, as amended, has been pleaded.
Additionally, it is trite law that documents tendered before a Court at the trial of a case are part and parcel of the evidence to be considered in the determination of issues before the Court and are made subject to the scrutiny of the Court, being tested for credibility and the weight to be attached thereon; per Okoro, JSC in Ekong v Otop (2014)
LPELR- 23022 (SC), (2014) 11 NWLR (Pt.1419) 549 at 573 S.C.
The Appellants pleaded non-compliance with the provisions of the Electoral Act, 2010, as amended. The evidence adduced at the trial which were in support of this contention cannot be swept under the carpet or ignored or simply consigned to the bin of ‘facts not pleaded’. Evidence is not pleaded but is tendered and evaluated.
An election is the process of choosing by popular votes a candidate for political office in a democratic system of government; per Adekeye, JSC in Marwa v Nyako (2012) LPELR-7837 (sc) (CON). The process of election includes the accreditation of voters, the voting, collation, recording on all relevant INEC forms and the declaration of result; Oke v Mimiko (2013) LPELR-21368 (SC); Fayemi v Oni (supra) also reported in (2010) LPELR-4145 (CA); Okoye v INEC (2010) LPELR-4728 (CA). Collation of results must be concluded before the result can be declared. That step cannot be jumped in the election process. The end of the process is the issuance of certificate of return to the successful candidate; Yardua v Yandoma (2014) LPELR-24217 (SC).
?By virtue of Section 75(1) of
the Electoral Act, 2010, as amended, a Certificate of Return is issued within seven days to every candidate who has won an election. In other words, the Certificate of Return is issued at the conclusion of the election. The Certificate of Return cannot be issued without the election process being completed with the collation of results.
In the recent case of Onjeh v Mark (2015) LPELR-25974 (CA); this Court found that as at 29/3/2015 collation for nine Local Governments making up Benue South Senatorial District had not been concluded or completed when the Returning officer purportedly returned the 1st Respondent therein as elected on 28/3/2015. This act was found to be in breach of the provisions of Sections 73 and 74 of the Electoral Act, as well as in breach of the manual and guidelines for Election for INEC Officials, 2015. This Court therefore held as being void the declaration of the result of the election in issue therein, before collations were concluded.
?At the hearing of the petition leading to the instant appeal, the cross-examination of RW6 and RW7, made it clear that Exhibit 25 RA 10, the Certificate of Return was not issued after the
conclusion of the collation of all the election results in the Yakun II State Constituency. Rather, it was issued on April 13, 2015, about 12 days before the conclusion of the election on April 25, 2015. This procedure was clearly not in consonance with the provisions of the Electoral Act, 2010, as amended. It was also not in consonance with the Election Manual and Guidelines for the 2015 General Elections, made pursuant to the provisions of Section 153 of the said Electoral Act. There can be no justification for acting outside the provisions of the enabling statute.
It is well settled that where a statute provides for a particular procedure or method for performing any act, no other method or procedure can be employed. In MEGA progressive peoples Party v. INEC (2015) LPELR-25706 (SC), the Supreme Court, per Muhammad, JSC succinctly put thus: “Certainly, when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by legitimate authority, then whatever is done in contravention, it amounts to nullity.”
See also: NNPC v Famfa Oil Ltd LPELR-7812 (SC) (Consolidated); University of Calabar Teaching
Hospital v Bassey (2005) LPELR-8553 (CA). The evidence adduced before the Tribunal proved unequivocally that the 2nd and 4th Respondents failed to comply with the provisions of the Electoral Act as well as the provisions of the Election Manual and Guidelines for the 2015 General Elections, made pursuant to the provisions of Section 153 of the said Electoral Act.
On this premise therefore, Issue No 1 is resolved in favour of the Appellants.
In my considered view, having determined that there was noncompliance with the provisions of the Electoral Act as well as with the provisions of the Election Manual and Guidelines for the 2015 General Elections, made pursuant to the provisions of Section 153 of the said Electoral Act by the 2nd and 4th Respondents, the further examination of other issues distilled by the parties would merely be academic. Accordingly, this appeal succeeds and is hereby allowed on this ground.
The judgment of the National and State Houses of Assembly Election Petition Tribunal, Calabar, Coram Hon. Justice I. W. Jauro (chairman), Hon Justice A. A. G. Onibokun (Member), and Hon Justice M. E. Njoku (Member) delivered on
Wednesday, November 11, 2015 dismissing the Appellants’ petition is hereby set aside. The return of the 1st Respondent is hereby annulled.
It is further ordered that the Election into the State House of Assembly for the Yakurr II State Constituency held on April 11 and April 25, 2015 and declared on April 25, 2015 is hereby nullified for non-compliance with the provisions of the Electoral Act, 2010, as amended.
It is further ordered that the 2nd Respondent shall within NINETY (90) DAYS from today conduct fresh elections for Yakun II State Constituency of Cross River State.
Parties shall bear their costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.:?I agree.
?PAUL OBI ELECHI, J.C.A.:?I agree.
?
Appearances
E. E. Osim Esq.For Appellant
AND
Mba E. Ukweni, Esq. with him P. A. Akpoke, P. O. Arikpo Esq., Mba O. Mba, C. A. C. Efife, E. J. Amatey Esq., E. O. Abba Esq., J. B. Ikpeme, Esq., and K. P. Iwara. Esq
P. O. Ebiala Esq.,
J. U. Ugbong Esq.For Respondent
