CHIEF LUQMAN OYEBISI ILAKA & ANOR v. SENATOR TESLIM KOLAWOLE FOLARIN & ORS
(2019)LCN/13799(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of October, 2019
CA/IB/EPT/OY/SEN/10/2019
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
RATIO
STANDARD OF PROOF OF ELECTION PETITION
All the parties to this appeal are aware that this is an Election Petition Appeal.
Election Petitions are sui generis and as such a unique specie quite different from cases decided in the normal Courts. Where a party has sought for the nullification of an election, he or she must succeed on the strength of his own case and not on the weakness of the Respondent?s case. The failure of his adversary to call evidence would not relieve the party of satisfying the Tribunal by cogent and reliable proof or evidence in support of his Petition.
It is settled law that the burden of proof of the Petition falls squarely on the Appellants to proof the petition beyond reasonable doubt. The Petitioners/Appellants who alleged electoral malpractices must adduce credible evidence to substantiate such allegations and even go further to prove how the electoral malpractices affected the outcome of the election to the detriment of the Appellants.
See the following cases:-
– OBU VS. EBU (2006) ALL FWLR PART 32 PAGE 427 AT 450.
– HARUNA VS. MODIBO (2004) 16 NWLR PART 900 PAGE 487 AT 545.
– CHIME VS. EZEA (2009) 2 NWLR PART 1125 PAGE 263 AT 354 PARAGRAPHS A-B. PER JIMI OLUKAYODE BADA, J.C.A.
PLEADINGS
In the recent case of ATIKU ABUBARKAR & 1 OTHER VS. INEC & 2 OTHERS (UNREPORTED) PETITION NO- CA/PEPC/002/2019 delivered on 11/9/2019. MOHAMMED LAWAL GARBA JCA, held at page 207 of the Judgment among others thus:-
?The trite position of the law is that a Defendant to an action or a Respondent to an Election Petition is entitled to rest his case on that of the Claimant or the petitioner where he has through devastating cross examination elicited sufficient evidence to support and prove facts ascertained in his pleadings.? See also ? PASTOR IZE-IYAMU ANDREW & ANOTHER VS. INEC (2018) 9 NWLR PART 1625 PAGE 507 AT 582 PARAGRAPH F.
– EDWARD NKULEGU OKEREKE VS. NWEZE DAVID OMAH (2016) 11 NWLR PART 1524 PAGE 438 AT 489 PARAGRAPHS B-G. In the circumstance this issues No. 2 and 3 are hereby resolved in favour of the Respondents and against the Appellants. PER JIMI OLUKAYODE BADA, J.C.A.
BURDEN OF PROOF OF ELECTION PETITION
It is the settled position of the law that the onus of proof in an Election Petition is on the petitioner who alleged Electoral Malpractices to plead and lead credible evidence to substantiate such allegations. They must go further to plead and prove how the Electoral Malpractices substantially affected the outcome of the Election. See Section 139(1) of the Electoral Act, 2010 (As amended) – OMISORE VS. AREGBESOLA (SUPRA)
The Appellants have made allegations bothering on corrupt practices, connivance, compromise of voter?s register, over-voting, non-recording, under-recording and other sundry allegations in their Petition. In my humble view some of the allegations are criminal allegations which require proof beyond reasonable doubt which the Petitioners were unable to prove.
See:- ACN VS. LAMIDO (2012) 8 NWLR PART 1303 AT 579 (SC). PER JIMI OLUKAYODE BADA, J.C.A.
AUTHENTICATION OF A LEGAL DOCUMENT
It is trite that it is the seal or signature of an author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the Legal Practitioner of the choice of the litigant or the litigant himself. The disputed processes were purportedly settled or signed by a Legal practitioner whose identity is unknown. Where ex facie a Court process is uncertain if the process was signed by the litigant or the Legal Practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant himself or by the legal Practitioner retained by him.
A Court process that purports to be signed by a Legal Practitioner must be as a matter of statute, have not only the signature of the Legal Practitioner but also his name clearly shown indicating that the signature is his—–“
See also the following cases:-
– ADEWUMI B. RAJI VS. UNIVERSITY OF ILORIN (SUPRA).
– SLB CONSORTIUM VS. NNPC (SUPRA).
PER JIMI OLUKAYODE BADA, J.C.A.
WHAT IS A NOTICE OF APPEAL
IN OLU ODE OKPE VS. FAN MILK PLC AND ANOTHER (SUPRA).
It was held among others that:-
?A Notice of Appeal is said to be the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process which guarantees the proper and valid commencement of an appeal. Therefore, it follows that where the originating process is defective or invalid, it cannot sustain the appeal, it will collapse and must be Struck out ?.?
?In view of the foregoing, I am of the view that the Notice of Cross-Appeal filed on behalf of the 2nd Respondent/Cross Appellant on 5/9/2019 is incompetent, null and void. It is accordingly struck out.
The Preliminary Objection succeeds and it is allowed.
The application filed on behalf of the Appellants/Cross Respondent on 17/9/2019 to strike out Ground 5 of the Cross Appellant?s Notice of appeal having been overtaken by event, it is also struck out. PER JIMI OLUKAYODE BADA, J.C.A.
Between
1. CHIEF LUQMAN OYEBISI ILAKA
2. PEOPLES DEMOCRATIC PARTY (PDP)
-APPELLANTS/CROSS RESPONDENTS Appellant(s)
AND
1. SENATOR TESLIM KOLAWOLE FOLARIN
-RESPONDENT
2. ALL PROGRESSIVES CONGRESS (APC)
RESPONDENT/CROSS-APPELLANT
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling and Judgment of the National and State House of Assembly Election Tribunal holden at Ibadan in Petition NO:- EPT/OY/SEN/11/2019:- BETWEEN: (1). CHIEF LUQMAN OYEBISI ILAKA, (2). PEOPLES DEMOCRATIC PARTY VS. (1). SENATOR TESLIM KOLAWOLE FOLARIN, (2). ALL PROGRESSIVE CONGRESS (APC), (3). INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) delivered on the 16th day of August 2019 wherein the Tribunal held that the 2nd Respondents had adduced sufficient reasons in support of their application dated 15/7/2019 and thus granted the application. The Tribunal also held that the Appellants who are the Petitioners at the Tribunal did not establish their case and dismissed their petition.
Briefly the facts of the case are that the Appellants filed their petition at the trial Tribunal on 17/3/2019. At the hearing, the Petitioners called (27) Twenty-Seven witnesses while the 1st Respondent called (4) Four witnesses, the second Respondent called (2) Two witnesses and the 3rd Respondent did not call any witness.
?After the trial the petition was adjourned
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for the adoption of Written Addresses but before the date fixed for adoption of Written Addresses, the learned Counsel for the 2nd Respondent filed an application dated 15/7/2019 in which he sought for the following prayers.
(i) An order granting the 2nd Respondent leave to move the motion outside Pre-hearing Session.
(ii) An order granting the Respondent extension of time within which to apply for leave to tender documents that were not front loaded with the reply.
(iii) An order deeming the said documents already tendered in evidence as having been properly tendered and admitted in evidence.
?The Appellants opposed the application by filing Counter Affidavit and Written Address.
In its Ruling the trial Tribunal granted the application of the 2nd Respondent by allowing all the prayers sought. The Tribunal in its Judgment dismissed the Petition for failure of the petitioners to establish the allegations in the Petition.
The Appellants who are dissatisfied with the Ruling and Judgment of the trial Tribunal appealed to this Court.
?The learned Counsel for the Appellants formulated four issues for the determination of
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the appeal. The issues are reproduced as follows:-
(1) Whether the trial Tribunal was right in granting the 2nd Respondent?s application dated 15/7/19 and filed on 17/7/19 (Distilled from ground 1).
(2) Whether the trial Tribunal was right in not deciding on the issue of various objections raised by the Appellants to the documents tendered by the Respondents? (Distilled from Ground 2)
(3) Whether the failure of the trial Tribunal to consider the other grounds upon which the petition was based did not occasion a breach of the Appellants? right to fair hearing.(Distilled from Ground 4).
(4) Whether the trial Tribunal was right to have dismissed the Appellants? petition regard being had to the peculiar circumstance of this case. (Distilled from (Grounds 3, 5 and 6).
The learned Counsel for the 1st Respondent in his own case also formulated (4) Four issues for the determination of the appeal. The said issues are also reproduced as follows:-
(1) Whether the trial Tribunal Rightly exercised its discretion by granting the 2nd Respondent?s application dated 15/7/19. (Distilled from Ground 1).
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(2) Whether the refusal of the trial Tribunal to pronounce on the issues of various objections raised by the Appellants to the documents tendered by the 2nd Respondent has occasioned a miscarriage of justice against the Appellants. (Distilled from Ground 2).
(3) Whether the trial Tribunal was not right in not considering other grounds in the Appellants? Petition having properly evaluated the evidence before it and came to the conclusion that the Appellants have failed to establish the allegation in the petition. (Distilled from Grounds 2).
(4) Whether the trial Tribunal was not right to have dismissed the Appellants? Petition having come to the conclusion that the Appellants as the Petitioners before it failed to establish the allegations in the Petition. (Distilled from Grounds 3, 4, 5 and 6).
The learned Counsel for the 2nd Respondent formulated only two issues for the determination of this appeal. The said issues are reproduced as follows:-
(1). Whether the decision of the lower Tribunal on the 2nd Respondent?s Application dated 15/7/19 has any effect on its final decision on the Petition (Distilled
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from Grounds 1 and 2).
(2). Whether the lower Tribunal?s decision to dismiss the Petition after proper evaluation was not right in the circumstances of the case (Distilled from Grounds 3, 4, 5 and 6).
The learned Counsel for the 3rd Respondent filed 3rd Respondent?s brief out of the time limited for filing. It was therefore discountenanced.
At the hearing of this appeal on 04/10/2019, the learned counsel for the Appellants stated this appeal is against the Ruling and Judgment of the National and State House of Assembly Election Tribunal holden at Ibadan Oyo State which was delivered on 16/8/19.
The record of appeal was transmitted to this Court on 4/9/2019, while the Notice of Appeal was filed on 28/8/19.
The Appellants? brief was filed on 12/9/19. The Appellants? Reply Brief to 1st Respondent?s brief was filed on 19/9/19, while the reply brief to the 2nd Respondent?s brief was filed on 25/9/19.
?The Learned Counsel for the Appellants applied to withdraw the Appellants? reply brief to the 3rd Respondent?s brief. The said Appellant?s reply brief to the 3rd
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Respondent?s brief is hereby struck out.
He applied to adopt the Appellant?s Brief of Argument as well as the Appellants? Reply Briefs to the 1st and 2nd Respondents as his argument in urging that this appeal be allowed.
The Learned Counsel for the 1st Respondent referred to the 1st Respondent?s Brief filed on 17/9/19. He adopted the said brief as his argument in urging that the Appeal be dismissed.
The Learned Counsel for the 2nd Respondent also referred to the 2nd Respondent?s brief filed on 20/9/19. He adopted and relied on the said brief as his argument in urging that the Appeal be dismissed.
I have perused the issues formulated for the determination of the appeal by Counsel for the parties. The issues formulated for determination on behalf of the Appellants are apt in the determination of this appeal, I will therefore rely on the said issues.
ISSUES NO 1.
Whether the trial Tribunal was right in granting the 2nd Respondents Application dated 15/7/19, (Distilled from Ground 1)
The learned Counsel for the Appellants contended that this issue raises a fundamental question of exercise of
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Jurisdiction of a Court in granting an application. He stated further that the Court has the discretion whether to grant or refuse the application, but that such discretion has to be exercised judicially and judiciously.
He relied on the following cases:-
– HON. FATIMA RASAKI & ANOTHER VS. OLADIMEJI LATEEF AJIJOLA & ANOTHER (2018) 7 NWLR PART 1617 PAGE 41 AT 53-54.
– PATIENCE OKORO EVE VS. FRN (2018) 7 NWLR PART 1619 PAGE 495 AT 511.
Learned Counsel for the Appellants referred to the application granted by the trial Tribunal and contended that the position of the Appellants is that the reliefs sought by the 2nd Respondent were incompetent for not complementing the prayer for ?an extension of time within which to apply for leave? with ?an order for leave?. It was also argued that the law which provides for the need to frontload all the documentary evidence to be relied upon by the Respondent requires strict compliance.
He relied on the cases of
– ALIYU IBRAHIM GEBI VS. ALHAJI GARBA DAHIRU (2012) 1 NWLR PART 1282 PAGE 560 AT 617.
– HON. DANIEL G. TSOKWA & ANOTHER VS. HOSEA IBI & 2 OTHERS (2017) 10 NWLR PART 1574 PAGE 343 AT 413 ?
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PARAGRAPHS E-G.
He also referred to Paragraph 47(1) to the First Schedule of the Rules of Procedure for Election Petition and submitted that the 2nd Respondent has a duty to establish that there was an extreme circumstance that necessitates the granting of the application.
As for relief 2 sought, the learned Counsel for the Appellants submitted that where there is the requirement for leave to do an act and such leave is not sought and obtained, that the Court has no jurisdiction to hear such application. He relied on the case of
– NABORE PROPERTIES LTD VS. PEACE COVER NIG. LTD. & 4 OTHERS (2015) 2 NWLR PART 1444 PAGE 440 AT 463.
As for relief 3 sought by the 2nd Respondent, the learned Counsel for the Appellants submitted that relief 3 is an attempt by the Respondent to regularize the documents already tendered as exhibits and that this is to circumvent the Provisions of Paragraphs 12(3) to the 1st Schedule to the Electoral Act 2010 (as amended). He relied on the following cases:- N. U. AKPAN VS. F.R.N. (2012) 1 NWLR PART 1281 PAGE 422 PARAGRAPHS G-H.
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– JOHN SHOY INTERNATIONAL LTD & ANOTHER VS. ABUJA ENVIRONMENTAL PROTECTION BOARD & 3 OTHERS (2013) 8 NWLR PART 1357 PAGE 625 AT 638.
– SOUTH TRUST BANK & 2 OTHERS VS. PHERANZY GAS LIMITED & 3 OTHERS (2014) 16 NWLR PART 1432 PAGE 1 AT 27 TO 28.
The learned Counsel for the Appellants finally submitted that the Ruling of the trial Tribunal is prejudicial to the Appellants and has occasioned a miscarriage of justice. He therefore urged that this issue be resolved in favour of the Appellants and dismiss the 2nd Respondent?s application dated 15/7/19.
In his response, the learned Counsel for the 1st Respondent submitted that the Tribunal rightly exercised its discretion in granting 2nd Respondent?s Motion on Notice dated 15/7/19.
?He went further in his submission that the trial Tribunal considered both the 2nd Respondent?s Affidavit in Support and the Motion in Contention as well as the Appellant?s Counter Affidavit and their respective written submissions. He referred to pages 923 to 924 of the record. He went further that the evaluation on those affidavits evidence and the ascription of probative value thereto is
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a matter primarily for the Trial Tribunal.
He relied on the following cases:-FATOYINBO VS. WILLIAMS (1959) 1 FSC PAGE 87.
– ADEDAYO VS. PDP (2013) 7 NWLR PART 1382 PAGE 1 AT PAGE 40.
It was also submitted on behalf of the 1st Respondent that the Appellants did not demonstrate that they were overreached as a result of the granting of the motion filed on behalf of the 2nd Respondent at the trial Tribunal.
He relied on the following cases:-
– APC VS. DR. VICTOR IKE OYE (2019) EJJSC VOL. 106 PAGE 82 AT 109 PARAGRAPHS B-D.
– OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR PART 599.
– ADEJUMO VS. AYANTEGBE (1989) 3 NWLR PART 110 PAGE 417 AT 432.
– A. G. FEDERATION VS. A. G. ABIA STATE (2002) 6 NWLR PART 74 PAGE 542 AT 749.
– EKPENETU VS. OFEGOBI (2012) 15 NWLR PART 1323 PAGE 276 AT 297.
?The learned Counsel for the 1st Respondent referred to the submission of learned Counsel for the Appellants that the 2nd Respondent should have included ?an extension of time within which to apply for leave? in the prayer of the application in contention is misconceived in law as
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there is no time frame provided under Paragraph 47(1) of the 1st Schedule to Electoral Act 2010 (as amended) within which a party may apply for leave to move his motion outside the pre-hearing session.
He urged that this issue be resolved in favour of the Respondents.
The learned Counsel for the Appellants re-iterated his earlier submission in his Reply Brief of Argument. He re-argued his appeal. I have to point it out here that, that is not the purpose of a reply brief which should deal with new points arising from the Respondents brief. A reply brief should not become another Appellant?s Brief of Argument.
The learned Counsel for the 2nd Respondent in this appeal approached this issue from another point of view.
He contended that as at the time trial started on 7/6/2019 neither the Appellants nor the Respondents had all the documents but that the Tribunal suggested and all parties agreed that nothing should disturb the flow of the hearing.
Therefore all objections to any evidence should be reserved till the end of hearing. And after the conclusion of evidence, the 2nd Respondent applied to regularize its position on the
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documents that were later obtained. Learned Counsel stated that the Tribunal did not use any of the documents tendered by the Respondent and admitted by the Court in reaching its conclusion.
Learned Counsel for the 2nd Respondent stated that this is because as stated in CHIME VS. EZEA (2009) 2 NWLR PART 1125 PAGE 263 AT 354 PARAGRAPHS A-B.
. It is very important that a party seeking nullification of any election must succeed on the strength of his own case and not on the weakness of the Respondent?s case, so that failure of his adversary to call evidence would not relieve the party from satisfying the Tribunal by cogent and reliable proof or evidence in support of his petition.?
According to Counsel for the 2nd Respondent, based upon the principle above, the Tribunal having found that the Appellants as Petitioners before the Tribunal did not establish its case against the Respondents, did not find it necessary to make use of the documents tendered by the Respondents.
?He then posed a question i.e. where the lower Tribunal did not make use of the said documentary evidence upon which the
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ruling was based, of what use is any appeal on that ruling? He answered thus:- Any determination of the issues have no benefit to any of the parties as it has nothing to do with the success or failure of the petition. It is academic. He relied on the case of:-
– OKE VS. MIMIKO & OTHERS (2013) LPELR 20645.
?The learned Counsel for the 2nd Respondent finally submitted that the Appellants could not state what injustice was caused, because even if the lower Tribunal had dismissed the said application, it would not have had any effect on the final decision of the Tribunal.
He relied on the case of:-
-OMISORE VS. AREGBESOLA (2015) LPELR-24803 S.C.
Learned Counsel for the 2nd Respondent urged that this appeal be dismissed.
There is no valid 3rd Respondent?s brief.
?In his Reply Brief to the 2nd Respondent?s submission the learned Counsel for the Appellants submitted that the argument of 2nd Respondent?s Counsel is erroneous and contrary to the laid down principles of law. He stated that the law is trite that the Court has a duty to consider every objection raised before it.
He relied on the case of:-
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– K. NWANKUDU VS. ENOCK IFEZUO IBETO (2011) 2 NWLR PART 1231 PAGE 209 AT 231-233.
It was also submitted on behalf of the Appellants that contrary to the submission of the 2nd Respondent, that the Appellants have not shown how they were prejudiced by the grant of 2nd Respondent?s application. He therefore urged this Court to discountenance the argument of the 2nd Respondent in this regard.
RESOLUTION
The application under consideration was set out earlier in this Judgment.
The Tribunal while granting the application held among others on page 924 of the record of appeal as follows:-
We have however examined the entire application before us and have read the grounds in support thereof. We would like to point out that these documents have already been tendered and are part of the evidence in this petition. All the parties had opportunity over the said document as well. The 2nd Respondent?s grounds for the application in summary is, that the documents were in
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possession of the 3rd Respondent and that the 2nd Respondent could not get them earlier than the time the documents were tendered in evidence. The said documents were also pleaded and listed in the list of documents except that they were in possession of the 3rd Respondent, we are therefore of the opinion that the 2nd Respondent has adduced convincing evidence in the application for it to succeed.?
Paragraph 47(1) of the 1st Schedule to the Electoral Act 2010 (as amended) provides thus:-
?No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with the leave of Tribunal or Court.?
The learned Counsel for the Appellants has contended that the 2nd Respondent has a duty to establish that there was an extreme circumstance that necessitates the granting of the application. He submitted that such unusual circumstance must be such beyond human contemplation and not one which is induced.
?I am of the firm view that contrary to the submission of the learned Counsel for the Appellants, it is the prerogative of the trial Tribunal to determine what amounts to extreme
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circumstances in deciding whether or not to grant the 2nd Respondent?s application regard being had to the material evidence placed before the Tribunal.
A careful reading of the reasons given by the trial Tribunal which was set out earlier in this Judgment would reveal that discretionary power of the trial Tribunal to grant the 2nd Respondent?s application under consideration cannot be subjected to the whims and caprices of the Appellants. It is not within the purview of the Appellants to determine ?extreme circumstances? in relation to the application.
It is a judicial discretion which has been exercised judicially and judiciously based upon the material placed before the Tribunal.
The trial Tribunal duly considered both the 2nd Respondent?s affidavit in support of the application as well as the Appellant?s Counter Affidavit and their respective Written Addresses. (See pages 923 to 924 of the record of Appeal).
See the following cases:-
– ADEDAYO VS. PDP (SUPRA)
– APC VS. DR. VICTOR IKE OYE (SUPRA)
In view of the foregoing, this issue is resolved in favour of the Respondents.
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ISSUE NOs. 2 AND 3 (TAKEN TOGETHER)
(2). Whether the trial Tribunal was right in not deciding on the issue of various objections raised by the Appellants to the documents tendered by the Respondents.
(3). Whether the failure of the trial Tribunal to consider the other grounds upon which the petition was based did not occasion a breach of the Appellant?s right to fair hearing.
(Issue 2 covers Ground 2 while issue 3 covers Ground 4).
The Learned Counsel for the Appellants submitted that a trial Court has a duty to consider all matters raised before it and decide same one way or the other.
He relied on the following cases:-
– JOHN SHOY INTERNATIONAL LTD. AND ANOTHER VS. ABUJA ENVIRONMENTAL PROTECTION BOARD & 3 OTHERS (SUPRA).
– GEN. MOHAMMED A. GARBA VS. MUSTAPHA SANI MOHAMMED & 2 OTHERS (2016) 16 NWLR PART 1357 PAGE 114 AT 167.
– HONEYWELL FLOUR MILLS PLC VS. ECOBANK NIGERIA LTD (2016) 16 NWLR PART 1539 PAGE 387 AT 423.
?The Learned Counsel for the Appellants contended that during the trial at the Tribunal that objections to the admissibility of certain documents
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tendered by 1st and 2nd Respondents were raised. The Appellants also objected to the evidence of RW1 to RW4. Both the Appellants and Respondents were said to have filed their Written Addresses on the issues. However, the Learned Counsel for the Appellants stated that the Tribunal did not determine any of the objections raised.
It was therefore submitted on behalf of the Appellants that the failure of the Tribunal to pronounce on any of the objections raised is tantamount to lack of fair hearing and has occasioned miscarriage of justice.
Learned Counsel therefore urged this Court to invoke the provisions of Section 15 of the Court of Appeal Act in dealing with the issues.
The Learned Counsel for the Appellants also relied on Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
He submitted that a party right to fair hearing can be said to have been breached if a party raises an issue before a Court and the Court refuses to give a decision thereon.
He relied on the following cases:-
– JOHN OGBU & ANOTHER VS. THE STATE 29 NSCQR PAGE 221 ACT 236.
?- ALHAJI MUHAMMADU MAGARI DINGYADI & ANOTHER VS. INEC & 2 OTHERS (2010) 18 NWLR PART
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1224, PAGE 1 AT 140.
– MUTIU OKE EKUN ADEBIYI & 4 OTHERS VS. OBA NURUDEEN ADEKANBI & 4 OTHERS (2018) 16 NWLR PART 1645 PAGE 242 AT 236.
It was stated that the Appellants called 27 witnesses who gave evidence in a bid to establish the various allegations raised by them. They also tendered various documents which were admitted as Exhibits.
The Learned Counsel for the Appellants stated that in a Judgment delivered by Tribunal, it limited itself to the consideration of the issue of over-voting alone and ignored all other grounds which Appellants relied upon.
It was submitted on behalf of the Appellants that had the Tribunal considered the other grounds raised by the Appellants it would not have come to the conclusion that the Appellants did not discharge the burden of proving substantial non-compliance with the provisions of the Electoral Act.
He finally urged this Court to exercise its power under Section 15 of the Court of Appeal Act and resolve these issues in favour of the Appellant.
?The Learned Counsel for the 1st Respondent in his response to the submission of the
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Appellants submitted that the Appellants have failed to demonstrate before this Court how the refusal of the trial Tribunal to pronounce on objections raised to the documents tendered by the 2nd Respondent as well as the refusal to consider other grounds of their Petition had occasioned a miscarriage of Justice.
It was further submitted on behalf of the 1st Respondent that Petitioners? case is not dependent on the Respondent?s reply or defence since the onus of the proof rested squarely on the Appellants to prove their case and that the Appellants failed to discharge the onus. He referred to Section 131(1) 132 and 133 of the Evidence Act 2011.
?He submitted that the trial Tribunal is not bound to severe those allegations in the Petition and start making pronouncement on each of them one after the other. He went further that once the Tribunal after proper evaluation of evidence of all witnesses found that there were no credible evidence both oral and documentary to sustain all the allegations in the petition the Tribunal held that the Petitioner?s witnesses did not give evidence to link the Election results with voters registers to
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establish the alleged malpractices, irregularities and non-compliance with the Electoral Act 2010. (As amended).
Learned Counsel for the 1st Respondent finally urged that this issue be resolved in favour of the Respondents.
In his Appellants Reply Brief of Argument, the learned Counsel for the Appellants reiterated his earlier submission on the issues under consideration and submitted further that the issues relating to the admissibility of document as well as the competency of a witness are preliminary issues which the Court has to consider before going into the merit of the case.
He relied on the case of:-
– OKPOKO COMMUNITY BANK LTD & ANOTHER VS. DR. P. C. IGWE (2013) 15 NWLR PART 1376 PAGE 167 AT 189.
It was also submitted on behalf of the Appellant that the allegations contained in the Appellant?s petition are not of a criminal nature but purely civil which has its standard of proof ?on a balance of probabilities?. He relied on the case of:-
– BUHARI VS. INEC (2009) 7 WRN PAGE 1 AT 112.
?On the whole, learned Counsel for the Appellants urged that the appeal be allowed and submissions of learned
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Counsel for the 1st Respondent be discountenanced.
?The learned Counsel for the 2nd Respondent in his response to the submission of Counsel for the Appellants referred to the case of:-
– OMISORE VS. AREGBESOLA (SUPRA) where the Supreme Court held among others that:-
?Furthermore, the appellants are duty bound not only to establish a lapse in the decision they appealed from, they must go the extra mile of establishing the injustice, the lapse occasioned.?
In this case it was contended on behalf of the 2nd Respondent that the Appellants could not state what injustice was caused because, even, if the trial Tribunal had dismissed the said application, it would not have had any effect on the final decision of the Tribunal.
In his reply to the 2nd Respondent?s submissions the learned Counsel for the Appellants submitted that the Appellants have shown how they were prejudiced by the grant of the application.
On the whole, the learned Counsel for the Appellants urged the Court to discountenance the argument of the 2nd Respondents Counsel.
He also urged that this appeal be allowed.
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RESOLUTION
?All the parties to this appeal are aware that this is an Election Petition Appeal.
Election Petitions are sui generis and as such a unique specie quite different from cases decided in the normal Courts. Where a party has sought for the nullification of an election, he or she must succeed on the strength of his own case and not on the weakness of the Respondent?s case. The failure of his adversary to call evidence would not relieve the party of satisfying the Tribunal by cogent and reliable proof or evidence in support of his Petition.
It is settled law that the burden of proof of the Petition falls squarely on the Appellants to proof the petition beyond reasonable doubt. The Petitioners/Appellants who alleged electoral malpractices must adduce credible evidence to substantiate such allegations and even go further to prove how the electoral malpractices affected the outcome of the election to the detriment of the Appellants.
See the following cases:-
– OBU VS. EBU (2006) ALL FWLR PART 32 PAGE 427 AT 450.
– HARUNA VS. MODIBO (2004) 16 NWLR PART 900 PAGE 487 AT 545.
– CHIME VS. EZEA (2009) 2 NWLR PART 1125 PAGE 263 AT 354 PARAGRAPHS A-B.
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It has been contended on behalf of the Appellants that the lower Tribunal refused to pronounce on issues of various objections raised by the Appellants to the Documents tendered by 2nd respondent and that has occasioned a miscarriage of justices against the Appellants.
There is no doubt in the fact that a Court is bound to consider all material issues raised before it and make pronouncement on it, however, there are circumstances where the Court can deviate from this principle as in the instant case where the issue in question as argued by the Appellants are auxiliary or where such issues raised did not occasion any miscarriage of justice or go to the root of the case.
The question that comes to mind is of what relevance would the ruling on various objections to the Respondent?s documents and written statements on oath have been to the petitioners case in the absence of any credible and reliable evidence from the Petitioners/Appellants?
As I said earlier the Petitioners/Appellants case is not dependent on the Respondent?s Reply or Defence since the onus of proof rests squarely on the Appellants to prove their case which
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said onus, the Tribunal found that it was not discharged.
For example the trial Tribunal held among others on page 946 of the record of appeal as follows:-
?The petitioners witness who testified in respect of some polling unit in the Senatorial district did not give evidence to link the Election results and the Voters Registers tendered to establish the alleged malpractices, irregularities and non-compliance with the Electoral Act 2010 (As amended), guidelines and manual for Election 2019. We are of the humble opinion that the petitioners have failed to establish the allegations in the petition and the sole issue for determination against them. The petition as a whole is dismissed.?
?A careful examination of the evidence led before the trial Tribunal and the Judgment delivered, would reveal that even if this Court was to uphold the Appellants? Objection, It would not have made any difference over the Judgment of the Trial Tribunal because as I said earlier a careful review of the evidence led and Judgment delivered by the lower Tribunal has revealed that the Petitioners/Appellants failed to adduce credible evidence upon which the
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allegations in the petition can be sustained.
The Petitioner must succeed or fail on the strength of their case.
It is therefore my view that in view of the failure of the Petitioners/Appellants to adduce credible evidence before the Tribunal, the Respondents are not bound to call any evidence or tender any document.
In the recent case of ATIKU ABUBARKAR & 1 OTHER VS. INEC & 2 OTHERS (UNREPORTED) PETITION NO- CA/PEPC/002/2019 delivered on 11/9/2019. MOHAMMED LAWAL GARBA JCA, held at page 207 of the Judgment among others thus:-
?The trite position of the law is that a Defendant to an action or a Respondent to an Election Petition is entitled to rest his case on that of the Claimant or the petitioner where he has through devastating cross examination elicited sufficient evidence to support and prove facts ascertained in his pleadings.? See also ? PASTOR IZE-IYAMU ANDREW & ANOTHER VS. INEC (2018) 9 NWLR PART 1625 PAGE 507 AT 582 PARAGRAPH F.
– EDWARD NKULEGU OKEREKE VS. NWEZE DAVID OMAH (2016) 11 NWLR PART 1524 PAGE 438 AT 489 PARAGRAPHS B-G.
?In the circumstance this issues No. 2 and 3 are
26
hereby resolved in favour of the Respondents and against the Appellants.
ISSUE NO. 4
?Whether the Trial Tribunal was right to have dismissed the Appellants petition regard being had to the peculiar circumstance of this case.? (Distilled from Grounds 3, 5 and 6).
The learned Counsel for the Appellants stated that 27 witnesses testified in support of the petition and also tendered documents in support of the petition.
He submitted that the Tribunal failed to consider the documents tendered in evidence in support of the Appellant?s case. It was submitted on behalf of the Appellants that documents speak for itself and that oral testimony is inadmissible to vary, add to or take from the contents of the documents. He relied on the following cases:- BULLET INTERNATIONAL NIG. LTD. & ANOTHER VS. DR. (MRS.) OMONIKE OLANIYI & ANOTHER (2017) 17 NWLR PART 1594 PAGE 280 AT 288.
– RILWAN & PARTNERS & ANOTHER VS. SKY BANK PLC (2015) 1 NWLR PART 1441 PAGE 437 AT 467.
It was submitted on behalf of the Appellants that the Trial Tribunal had the duty to consider the documents before them such as Forms EC8A of
27
units complained of, the voters Registers of all affected units, the Forms EC40G of units where elections were cancelled.
He relied on the case of:-
– BERNARD OKAFOR VS. MADAM ENO CAROL EFFIONG (2017) 1 NWLR PART 1577 PAGE 519 AT 538-539.
Learned Counsel for the Appellants therefore urged on this Court to re-evaluate the evidence before the trial Tribunal.
He relied on Section 138(1) of the Electoral Act 2010 (as amended) and the case of FALEKE VS. INEC & ANOTHER (2016) 18 NWLR 61 AT 130 (SC).
It was submitted that the trial Tribunal ought to have considered holistically the Provisions of the Electoral Act 2010 as (amended) together with the Provisions of the 2019 Election Guidelines and Manual in reaching a final decision.
The Appellants complaint at trial Tribunal was brought under 5 subheads.
– Over-voting.
– Suppression/under-recording of votes.
– No recording of votes.
– Failure to carry out proper accreditation complemented by use of smart card readers.
– Failure to conduct rerun after cancellation of result.
The Appellants gave a chart to show over voting.
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Learned Counsel relied on Section 53(2) of the Electoral Act and the case of:-
– APC & 2 OTHERS VS. HON. DANLADI IDRIS KARFI & 2 OTHERS (2018) 6 NWLR PART 1616 PAGE 479 AT 505 PARAGRPHS B-C.
The learned Counsel for the Appellants submitted that the said discrepancies substantially affected the result of election as the 1st Petitioner was at a disadvantage by virtue of the omission of the 3rd Respondent to properly enter the result of the election.
The learned Counsel also referred to Exhibit 35 and submitted that the 3rd Respondent had no discretion than to conduct a re-run election in the affected units.
He finally urged this Court to resolve this issue in favour of the Appellants. He also urged that the return of the 1st Respondent be declared as wrongful and make an order declaring 1st Appellant as the winner or in the alternative order a rerun in all polling units complained of.
?The learned Counsel for the 1st Respondent in response to the submission of Counsel for the Appellants submitted that the Appellants failed before the Honourable Tribunal to show that the election that produced 1st Respondent as the winner of the Oyo
29
State Senatorial District held on 23/2/19 did not comply with the laws and the regulations under which it was conducted.
The learned Counsel for the 1st Respondent submitted that the Appellants made allegations of crime in many paragraphs of their petition bothering on corrupt practices connivance, compromise of voters register, over-voting, non-recording, under-recording allegations in their Petition.
He submitted that criminal allegations require proof beyond reasonable doubt and that the Petitioners have failed to do.
He relied on the case of:-
– ACN VS. LAMIDO (2012) 8 NWLR PART 1303 AT 579.
It was also submitted on behalf of the 1st Respondent that all the evidence of the 27 witnesses called by the Petitioners/Appellants were discredited under Cross Examination by the Respondents.
It was also contended on behalf of the 1st Respondent that the failure of the Petitioners witnesses who testified as polling agents/party agents to show any evidence to support their allegation during trial, therefore shows that the Judgment of the Trial Tribunal which dismissed the Appellants? Petition cannot be faulted.
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He relied upon the case of ?
-ADEDAYO VS. PDP (2013) 7 NWLR PART 1382 PAGE 1 AT 40 (SC).
It was also alleged that PW1 to PW27 dumped various documents before the Tribunal without relating it to the issues under consideration.
In view of the foregoing, the learned Counsel for the 1st Respondent urged that this issue No. 4 be resolved against the Appellants. It was also urged upon this Court to dismiss the appeal and affirm the Judgment of the Trial Tribunal.
In his reply brief of argument, the learned Counsel for the Appellants submitted that the Appellants have complied and established their position in line with the law, he therefore urged that the submissions of Counsel for the 1st Respondent be discountenanced and allow this appeal.
The learned Counsel for the 2nd Respondent in his response to the Appellants? submission referred to the chart drawn in the Appellants? brief, and he submitted that the chart cannot be accepted as an admission of the fact and figures therein contained. He urged that the chart be discountenanced on the authority of ? OMISORE V. AREGBESOLA (2015) LPELR-24803.
?The learned Counsel for the
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2nd Respondent highlighted the evidence of the witnesses called by the Appellants and submitted that the Appellants did not establish any non-compliance. He referred to ? OMISORE VS. AREGBESOLA (SUPRA).
It was also submitted that a fact in a Petition cannot form the basis of a Judgment. Without calling evidence on those paragraphs they are deemed abandoned because, pleadings do not constitute evidence. He relied on the case of:- N.A.S. LTD VS. U.B.A. PLC (2005) 14 NWLR PART 945 PAGE 421.
He concluded his submission that where a Petitioner i.e. the Appellants in this case fails to prove their case there was no need to even call on the Respondents to prove their defence.
He urged this Court to dismiss the appeal.
The learned Counsel for the Appellants in his response to 2nd Respondent?s submission stated that the Appellants have established substantial non-compliance with the provisions of the Electoral Act. He urged this Court to discountenance the argument of the 2nd Respondent.
?In conclusion he urged that the appeal be allowed and discountenance the submissions of learned Counsel for the 2nd Respondent.<br< p=””
</br<
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RESOLUTION
The grounds upon which the Appellants? petition are based as per paragraph 11 of the petition are as follows:-
(1). That the 1st Respondent was not duly elected by majority of lawful votes cast at the election held on 23/02/2019, and
(2). That the Election and the return of the 1st Respondent is invalid by reason of irregularities and other electoral malpractices perpetrated by the 1st Respondent and members of the 2nd Respondent in places being challenged this petition in active connivance of the 3rd Respondent.
(3). The Election of the 1st Respondent in the said election is invalid by non-compliance with the Provisions of the Electoral Act 2010 (as amended) Guidelines for conduct of the 2019 General Election and Manual for Election Officials 2019.
It is the settled position of the law that the onus of proof in an Election Petition is on the petitioner who alleged Electoral Malpractices to plead and lead credible evidence to substantiate such allegations. They must go further to plead and prove how the Electoral Malpractices substantially affected the outcome of the Election.
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See Section 139(1) of the Electoral Act, 2010 (As amended) – OMISORE VS. AREGBESOLA (SUPRA)
The Appellants have made allegations bothering on corrupt practices, connivance, compromise of voter?s register, over-voting, non-recording, under-recording and other sundry allegations in their Petition. In my humble view some of the allegations are criminal allegations which require proof beyond reasonable doubt which the Petitioners were unable to prove.
See:- ACN VS. LAMIDO (2012) 8 NWLR PART 1303 AT 579 (SC).
The trial Tribunal reviewed the evidence of 27 witnesses called by the Appellants in proof of their petition and held among others thus: –
?The petitioners witnesses who testified in respect of some polling units in the Senatorial District did not give evidence to link the Election Results and the Voters Register tendered to establish the alleged malpractices, irregularities and non-compliance with Electoral Act 2010 (As amended) Guidelines and Manual for Election 2019?).
(See page 946 of the record of appeal).
The trial Tribunal meticulously reviewed the evidence of the witnesses called by the Appellants before coming to the
34
above decision. It also reviewed the bundle of document dumped before the Tribunal.
A careful reading of the record and Judgment of the trial Tribunal would reveal that the Petitioners? witnesses who testified as polling agents/party agents failed to show any evidence to support their allegations at the trial.
The Tribunal had the opportunity of watching the demeanor of all the witnesses both during examination in chief and during cross examination.
Therefore the decision of the trial Tribunal in dismissing the petition cannot be faulted.
The trial Tribunal in this case has unquestionably evaluated the evidence before it and appraised the facts therefore, it is not the business of the Appellate Court to substitute its own views of undisputed facts with the views of the trial Tribunal.
See ? ADEDAYO VS. PDP (SUPRA).
After reading through the record of appeal, I am of the view that none of the 27 witnesses called by the Appellants related any of the exhibits tendered through them to any specific allegation contained in the Petition.
The trial Tribunal was therefore right when it held that-
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?PW19 a subpoenaed witness and staff of the 3rd Respondent, the Electoral body only appeared and tendered documents earlier stated in the Judgment. That is Election Results, voters register for Ona-Ara LG and 126 voters register in Egbeda LG which were not tendered on the ground that they were not available. As already stated above, no witness gave evidence as to the effect of the Election results and voters Register tendered by PW19 in support of the allegation of the Petition. PW20 tendered Exhibit P25 being this unit result for ward 07 unit 8 and continued under cross examination ?” (See page 943 of the record of Appeal).
In view of the extract of the Judgment of the trial Tribunal set out above, I am of the view that it is the duty of the Appellants and not that of trial Tribunal to relate those documents tendered by the Appellants? witnesses to the specific allegation in the Petition.
I am fortified in my view above by the decision of the Supreme Court in:-
– UCHA VS. ELECHI (2012) 13 NWLR PART 1317 PAGE 330 AT 367 TO 368 PARAGRAPHS G-A where the Supreme Court per FABIYI JSC held thus –
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?The Appellants as the petitioners at the Trial Tribunal alleged non-compliance with the provisions of the Electoral Act 2010 (as amended). To prove same, they dumped, tied Exhibits before the Tribunal. They were not untied and demonstrated before the Tribunal. It was not the duty of the Tribunal to untie the Exhibits in Chambers and assess them, it was not the duty of the Tribunal to embark upon cloistered justices by making enquiry into the case in Chambers by examination of the document which were in evidence but not demonstrated by the witnesses before the Tribunal. A Judge is an adjudicator and not an investigator. See DURUNINIYA VS. COMMISSIONER OF POLICE 1961 NNLR PAGE 70 ? ONIBUDO VS. AKIBU (1982) 7 S.C PAGE 60.?
See also the following cases- BAITACHI VS. SHADAFI (2012) 14 NWLR PART 1317 PAGE 396 AT 411
– AWUSE VS. ODILI (2005) 16 NWLR PART 952 PAGE 482 PARAGRAPHS C-E 510 ? 511.
?The learned Counsel for the Appellants also relied on the Chart incorporated in the Appellants? Brief. But I agree with the submissions of learned Counsel for the 1st & 2nd Respondent that the Chart is not
37
acceptable. It cannot take the place of evidence. The Chart is hereby discountenanced. SeeOMISORE VS. AREGBESOLA (SUPRA).
Consequent upon the foregoing this Issue No. 4 is hereby resolved in favour of the Respondents and against the Appellants
I am therefore of the view that this Appeal lacks merit and it is hereby dismissed.
The Judgment of the trial Tribunal in petition NO- EPT/OY/SEN/11/2019 ? CHIEF LUQMAN OYEBISI ILAKA & 1 OTHER VS. SENATOR TESLIM KOLAWOLE FOLARIN & 2 OTHERS delivered on 16/8/2019 is hereby affirmed.
There shall be (?100,000) One Hundred Thousand Naira costs in favour of each of the Respondents against the Appellants.
Appeal Dismissed.
CROSS APPEAL
There is a Notice of Cross-Appeal filed on 5/9/2019 by the 2nd Respondent/Cross Appellant against the decision of the National and State House of Assembly Election Petition Tribunal holding at Ibadan in Petition NO- EPT/OY/SEN/11/2019 wherein the learned Trial Tribunal held that the Petitioners/Appellants/Cross Respondents have locus standi to institute the Petition.
?The 2nd Respondent/Cross Appellant who is dissatisfied with the
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decision of the trial Tribunal filed a notice of Cross Appeal containing five grounds.
PRELIMINARY OBJECTION
Before going further into the merit of the Notice of Cross Appeal, it would be necessary to determine the Notice of Preliminary Objection filed on behalf of Appellants/Cross Respondents. This is because the fundamental objective of a Preliminary Objection is to contend that the Cross Appeal is incompetent and fundamentally defective and should be struck out.
The Grounds upon which the Notice of Preliminary Objection was based is that there is no indication on the Notice of Cross-Appeal as to the Legal Practitioner that actually signed the said Notice of Cross Appeal.
It was argued that the Notice of Cross-Appeal filed on behalf of the 2nd Respondent/Cross Appellant on 5/9/2019 has signature under which there are two names i.e. ?Michael F. Lana Esq.? and ? Abiodun Adebayo Esq.?
It was argued on behalf of the Appellants/Cross Respondents that there was no indication as which of these two persons own the signature.
He relied on the following cases:
– GUARANTY TRUST BANK VS. INNOSON NIGERIA LTD
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(2017) 16 NWLR PART 1591 PAGE 181 AT 196-197.
– DR. ADEWUMI BILI RAJI VS. UNIVERSITY OF ILORIN (2018) 15 NWLR PART 1642 PAGE 220 ACT 234.
– OLU ODE OKPE VS. FAN MILK PLC & ANOTHER (2017) 2 NWLR PART 1549 PAGE 282 ACT 318 ? 319.
– SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR PART 1252 PAGE 317 AT 377.
Learned Counsel for the Appellants/Cross Respondents submitted that the Notice of Cross Appeal having been signed by an unknown Legal Practitioner he urged that it should be struck out.
The learned Counsel for the 2nd Respondent/Cross Appellant in his response referred to the case of GTB PLC. VS. INNOSON NIGERIA LTD (SUPRA) where it was held among others that:-
?It is the seal or signature of the author on a document that authenticates the document.”
Also on page 197 paragraphs C-D the Court held:-
?The decision of the Court in SLB CONSORTIUM LTD VS. NNPC (SUPRA) and many others on Court Processes prepared and filed by a Legal Practitioner clearly demonstrates that the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or
40
mark of the legal practitioner either against his name or over and above his name.?
He also referred to the case of EMECHEBE VS. CETO INTERNATIONAL NIG. LTD (2018) 11 NWLR PART 1631 PAGE 520 AT 533 PARAGRAPHS G-H.
The learned Counsel for the 2nd Respondent/Cross Appellant now posed a question ? whether with the stamp of the NBA bearing the name of Michael F. Lana and placed beside his name the signature is not traceable to a legal practitioner.
He also relied on the case of ? RAJI VS. UNIVERSITY OF ILORIN (SUPRA).
He finally submitted that the signature MICHAEL F. LANA ESQ is traceable to a Legal practitioner. He urged that the Preliminary Objection be dismissed.
RESOLUTION
The competency of the Notice of Cross Appeal is what is being challenged. The said Notice of Cross Appeal was signed. ?Michael F. Lana Esq? and ?Abiodun Adebayo Esq. were written under the signature with the seal of Michael F. Lana. However there is no indication as to which of those two names owns the signature which is just a contraption. ?It is my view that what ought to have been done is to tick the appropriate
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name out of the two names, because as it stands there is confusion as to who out the two named persons signed the Cross Appeal.
In the case of GUARANTY TRUST BANK PLC. VS. INNOSON NIGERIA LTD (SUPRA), It was held among others by the Supreme Court that:-
?It is trite that it is the seal or signature of an author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the Legal Practitioner of the choice of the litigant or the litigant himself. The disputed processes were purportedly settled or signed by a Legal practitioner whose identity is unknown. Where ex facie a Court process is uncertain if the process was signed by the litigant or the Legal Practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant himself or by the legal Practitioner retained by him.
A Court process that purports to be signed by a Legal Practitioner must be as a matter of statute, have not only the signature of the Legal Practitioner but also his name clearly shown indicating that the signature is
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his—–”
See also the following cases:-
– ADEWUMI B. RAJI VS. UNIVERSITY OF ILORIN (SUPRA).
– SLB CONSORTIUM VS. NNPC (SUPRA).
– IN OLU ODE OKPE VS. FAN MILK PLC AND ANOTHER (SUPRA).
It was held among others that:-
?A Notice of Appeal is said to be the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process which guarantees the proper and valid commencement of an appeal. Therefore, it follows that where the originating process is defective or invalid, it cannot sustain the appeal, it will collapse and must be Struck out ?.?
?In view of the foregoing, I am of the view that the Notice of Cross-Appeal filed on
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behalf of the 2nd Respondent/Cross Appellant on 5/9/2019 is incompetent, null and void. It is accordingly struck out.
The Preliminary Objection succeeds and it is allowed.
The application filed on behalf of the Appellants/Cross Respondent on 17/9/2019 to strike out Ground 5 of the Cross Appellant?s Notice of appeal having been overtaken by event, it is also struck out.
NONYEREM OKORONKWO, J.C.A.: I agree
FOLASADE AYODEJI OJO, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. I agree with the reasoning and conclusion leading to the dismissal of the appeal. I however wish to lend my voice to the view expressed by my learned brother on the burden of proof placed on a Petitioner in an election Petition.
?The Appellants challenged the result of the election conducted into the Senate of the Federal Republic of Nigeria on 23rd February, 2019 in respect of the Oyo Central Senatorial District. The thrust of the Appellants’ case as Petitioners before the lower Tribunal is that the election was
44
marred with irregularities and electoral malpractices as well as non-compliance with the Electoral Act and Election Guidelines. The Appellant thereupon sought declarative reliefs. The settled position of the law is that there is a rebuttable presumption that the result of any election declared by the electoral umpire, that is, the Independent National Electoral Commission, is correct and authentic. A Petitioner thus has the onus to adduce evidence in rebuttal of the correctness and authenticity presumed in favour of the election result. See BUHARI V INEC & ORS (2008) 19 NWLR (PT. 1120)246; NYESOM V PETERSIDE (2016) 7 NWLR (PT. 1512)452; OMOBORIOWO & ANOR. V. AJASIN (1984)10 SC 178. Further to this, having sought declarative reliefs before the lower tribunal, the Appellants as Petitioners had an added burden to prove allegations made in their Petition which entitle them to the declaration sought. They must rely solely on the strength of their own case and not on the weakness of the Respondents’ case or any admission made by them. See CONGRESS FOR PROGRESSIVE CHANGE V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2012) 13 NWLR (PT. 1317)760;
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UCHA & ANOR V. ELECHI & ORS (2012) 13 NWLR (PT. 1317)330; INDEPENDENT NATIONAL ELECTORAL COMMISSION V ATUMA (2013) 11 NWLR (PT. 1366)494. The lower Tribunal found that the Appellants failed to discharge the burden on them to prove their Petition. A consideration of the Respondents’ case does not arise until and unless the Petitioner has proved his case.
See AWUSE V ODILI (2005) 16 NWLR (PT. 952)440-441. I therefore agree with my learned brother that the Appellants having failed to adduce sufficient credible evidence before the lower Tribunal in proof of their case, failure of the Tribunal to rule on the objection raised by the Appellants to the admissibility of certain documents tendered by the 1st and 2nd Respondents in the circumstance did not occasion a miscarriage of justice. Furthermore, failure of the lower Tribunal to rule on the objection raised to the evidence of RWI and RW4 did not in any way affect its decision to dismiss the Petition. The Petition was dismissed because the Appellants did not discharge the burden of proof placed on them by law. No miscarriage of justice was thus occasioned.
It is for the foregoing and the fuller
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reasons contained in the lead Judgment that I too dismiss the appeal.
On the cross appeal filed by the 2nd Respondent, I agree with my learned brother that same should be struck out for being fundamentally defective.
A Notice of Appeal is the substratum or foundation of a cross appeal. Any defect therein renders it incompetent and liable to be struck out. This Court will lack jurisdiction to hear and determine it. KENTE V ISHAKU & ORS. (2017) 12 NWLR (PT. 1578)94; ODUNZE & ORS V NWOSU & ORS (2007) 13 NWLR (PT. 1050)1; FBN PLC V T.S.A. IND LTD (2010) 15 NWLR (PT. 1216)247. The Notice of Cross Appeal herein, having been signed by an unidentifiable legal practitioner is fundamentally defective and incompetent. I also strike it out. I abide by the consequential orders in the lead Judgment.
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Appearances:
Dr. Kingsley Ike with him, Ife Olamiju, Esq, Yewande Ojo, Esq, Victoria Olusegun, Esq. and Fisayo Adeosun, Esq, for the Appellants/Cross Respondents.For Appellant(s)
Mr. Tunde Falola with him, Yemisi Pereira, Esq. for the 1st Respondent.
Mr. Micheal F. Lana with him, A. Adebayo, Esq., B. Akinola, Esq., T. Ayankoya (Miss) and F. Fagbemi (Miss) for the 2nd Respondent/Cross Appellant.
Mr. Akinwale Ojemuyiwa holding brief of Edodo-Emore with him, Mrs. F. Ajiboye for the 3rd Respondent.For Respondent(s)
Appearances
Dr. Kingsley Ike with him, Ife Olamiju, Esq, Yewande Ojo, Esq, Victoria Olusegun, Esq. and Fisayo Adeosun, Esq, for the Appellants/Cross Respondents.For Appellant
AND
Mr. Tunde Falola with him, Yemisi Pereira, Esq. for the 1st Respondent.
Mr. Micheal F. Lana with him, A. Adebayo, Esq., B. Akinola, Esq., T. Ayankoya (Miss) and F. Fagbemi (Miss) for the 2nd Respondent/Cross Appellant.
Mr. Akinwale Ojemuyiwa holding brief of Edodo-Emore with him, Mrs. F. Ajiboye for the 3rd Respondent.For Respondent
