EGU OBINNA AMBROSE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13760(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of August, 2019
CA/OW/EPT/SHA/27/2019
RATIO
PLEADINGS: THE IMPORTANCE OF PLEADINGS IN A MATTER
The fulcrum of this Appeal is that the Tribunal rejected the tendering of Form EC8A on the Ground that same was not pleaded. He who avers must prove JEGA v. ALU (2010) ALL FWLR (PT. 502) 1066; YUSUF v. TOLUHI (2002) FWLR (PT. 119) 1430 @ 1435 Paragraph. It is elementary law, that matters admitted in pleadings need no further proof. PER RITA NOSAKHARE PEMU, J.C.A.
PLEADINGS: NATURE OF PLEADINGS
MOZIE & ORS v. MBAMALU & ORS (2006) 7 S.C. Part 11 154 and 160; AYOKE v. BELLO (1992) 10 NWLR (PT. 218) at 380.
Pleadings are facts. It is facts that should be pleaded and not evidence. But documents can be tendered in support of facts pleaded.
A party relying on any fact must not only plead that fact, but also proffer evidence in proof thereof ? OSHO v. FOREIGN FINANCE CORP (1991) 4 NWLR 184 (157). PER RITA NOSAKHARE PEMU, J.C.A.
ELECTION PETITION: UNDER WHAT LAWS ARE ELECTION PETITIONS BROUGHT
The hearing and determination of Election Petitions is governed by the Electoral Act (First Schedule to the Act 2010 as amended), and the Court?s Practice Direction of 2011 (Rules of Procedure). PER RITA NOSAKHARE PEMU, J.C.A.
ELECTION PETITION: HOW TO FILE ELECTION PETITION
Election Petitions must be accompanied with copies or list of every document to be relied on at the hearing of the Petition?, as enunciated in Paragraph 4 (5) (c) of the First Schedule to the Electoral Act 2010 (as amended).
In Paragraph 5 thereof, it states that:-
Evidence need not to be stated in the election petition, but the Tribunal or Court may order such further particulars as may be necessary.”
(a) To prevent surprise and unnecessary expenses.
(b) To ensure fair and proper hearing in the same way as in a civil action in the Federal High Court; and
(c) On such terms as to costs or otherwise as may be ordered by the Tribunal or Court.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
EGU OBINNA AMBROSE Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
2. THE RESIDENT ELECTORAL COMMISSIONER, RESPONDENTS
IMO STATE
3. OKEREKE TOCHI S. Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal filed by the Petitioner EGU OBINNA AMBROSE, against the interlocutory rulings of the National and State House of Assembly Election Tribunal, Owerri presided over by Honourable Justice C. H. Ahuchaogu (Chairman) Honourable Justice A. J. Bashrea (Member 1) and Honourable Justice S. D. Ahmed (Member 11) delivered on the 10th of July 2019.
SYNOPSIS OF FACTS
The 3rd Respondent Okereke Tochi S. had been declared winner of the House of Assembly election for the Ngor Okpala State Constituency election held on the 9th and 23rd days of March 2019. The Appellant as Petitioner challenged the said declaration by filling his petition on the 12th day of April 2019.
The 3rd Respondent having been served with the petition filed his reply to the petition on the 15th of May 2019.
The petition was adjourned to be heard after close of pleadings, and pre-hearing session.
On the 21st of June, 2019 hearing commenced. On the 26th of June, 2019, as the Appellant testified as PW8, the Petitioner?s counsel sought to tender in evidence polling units results, pleaded by
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him. The documents sought to be tendered included certified true copies of Forms EC8A; EC8A(1); EC8B (1) and EC8E.
Learned counsel for the 3rd Respondent objected on the ground that the Petitioner did not plead Form EC8 (A) but only pleaded Form EC8A (1) referring the Tribunal to Paragraphs 17 and 18 of the Petition.
The Appellant?s counsel however referred the Tribunal to Paragraph 11 of the Petition wherein the Petitioner pleaded polling units results in Form EC8A.
In delivery its Ruling, the Tribunal rejected all the polling units results in Form EC8A sought to be tendered in evidence as exhibits.
It further ordered that same be marked rejected on the ground that the said document was not pleaded.
The Appellant?s counsel again sought to tender duplicate copies of Form EC8A pleaded in the Petition through PW8 (The Petitioner) but the 3rd Respondent?s counsel again objected.
The Tribunal again rejected the tendering of the duplicate copies of the polling units results and relied on their earlier ruling delivered on the same day.
?
The Appellant is dissatisfied with these rulings delivered on the 10th of July
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2019 and has appealed same. He filed a Notice of Appeal in consequence, on the 16th of July, 2019 encapsulating one Ground of Appeal.
The Appellant filed his brief of Argument on the 26th of July 2019. It is settled by CHIEF OKEY EHIEZE (KSC); the 1st Respondent filed its brief of Argument on the 6th of August 2019. It is settled by KELECHI OBI ESQ.
The 3rd Respondent?s brief of Argument filed on the 5th of August 2019 is settled by C. K. OLUMBA ESQ.
The 2nd Respondent filed no brief of Argument.
On the 14th of August, 2019, when the appeal came up for hearing, the 1st Respondent?s Counsel R.C. Ubochi Esq. told Court that he filed a motion on notice on the 6th of August 2019 for extension of time within which to file and serve the 1st Respondent?s brief of argument.
The Court however observed that the 1st Respondent had filed its brief of argument well out of time. More so, there is no provision in the Election Tribunal and Court Practice Direction 2011, which enables a party to be granted extention time to file brief of argument.
?
On the basis of this observation, R.C. Ubochi of Counsel to the 1st Respondent then
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withdrew the motion on notice and same was struck out.
It was also observed that the 3rd Respondent also filed out of time.
The result is that it was only the Appellant?s brief that was properly filed before this Honourable Court.
The Appellant argued his appeal which was undefended. He adopted his brief of argument and urged this honourable Court to allow the appeal, particularly as the Respondents failed to file briefs. That the Respondents have no audience before this Court.
The Appellant distilled a sole issue for determination which is:-
?WHETHER THE LOWER COURT WAS RIGHT IN REJECTING THE APPELLANT?S TENDERING OF POLLING UNIT RESULTS IN FORM EC8A ON THE GROUND THAT THEY WERE NOT PLEADED.”
I shall consider this appeal based on the Appellant?s sole issue for determination.
ISSUE NO 1
It is the contention of the Appellant that in election petition matters, a petitioner is required to plead material facts that are necessary to substantiate the claim of the petition, that the Respondent was not returned on the basis of majority of lawful votes, or that the election was marred or vitiated by
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corrupt practices or non-compliance with the Electoral Act. That there must be full disclosure of facts when it pertains to election petition matters, citing BUHARI v. OBASANJO (2005) 13 NWLR (PT. 941) 1 @ 200 ? 201.
He submits that in civil cases, the parties as well as the trial Court are bound and guided by the issue as settled in the pleadings citing OKECHUKWU ADIMORA v. NNANYELUGO AJUFO (1988) 3 NWLR (PT. 80) 1.
He submits that the Petitioner set up a case with respect to the election of 9/3/2019 based on Form EC8A (1). He cannot now be allowed to rely on something entirely different in the course of trial in Court. He submits that the Tribunal was wrong when it held that the petitioner did not plead Form EC8A simpliciter but only pleaded Form EC8A (1). This is because the Tribunal came to the erroneous conclusion as it only considered Paragraphs 10, 14, 17, 21, 22, 25 and 32 of the petition, as well as Paragraphs 14 and 17 of the Written Statement on oath.
?
The Petitioner concedes that in these Paragraphs, the Appellant as Petitioner pleaded Form EC8A (1). He also, notwithstanding pleaded Form EC8A in Paragraph 11 of the Petition. The
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Tribunal was referred to Paragraph 11, but it nevertheless shut its eyes to it, in order to justify its rejection of the documents.
He submits that the averments in Paragraph 11 of the Petition, and Paragraph 11 of the Petitioners deposition are wide enough to accommodate the tendering of Form EC8A.
That the said Form EC8A could still be admissible pursuant to the general pleading in Paragraph 32 of the Petitioners witnesses deposition.
That Form EC8A being an INEC document falls within the term ?all INEC documents? including ?Form? and ?result Sheet? used for the election as stated in Paragraph 32 of the petition ? referring to Page 12 of the Record of Appeal.
That the Appellant in his pleadings particularly in Paragraphs 11 and 32 gave notice of his reliance on the said document.
Submits that the decision of the Tribunal rejecting the documents is perverse, citing ABDULMUMINI v. FRN (2018) ALL FWLR (PT. 969) 744 @ 787.
Urges this Honourable Court to set aside the Tribunal?s decision which is not supported by the pleadings of the petitioner and admit the Form EC8A in evidence.
RESOLUTION OF THE SOLE ISSUE FOR DETERMINATION
In considering this appeal, the following Paragraphs of the Petition are apt. ? Paragraphs 4, 8, 10, 11, 14, 32. I shall reproduced same verbatim.
Paragraph 4
The 1st Respondent (Independent National Electoral Commission i.e INEC) is a corporate body created by statute and vested with powers to, amongst others, conduct election into various elective offices in Nigeria including the general election to the membership of Imo State House of Assembly for Ngor Okpala State Constituency, Imo State which it conducted on the 9th day of March 2019 and 23rd March 2019 respectively. The 1st Respondent maintains offices all over the Federation of Nigeria, including a principal office located at Port Harcourt Road, Owerri, Imo State.?
Paragraph 8
Your Petitioner states that the 1st and 2nd Respondents conducted and held the aforesaid election on the 9th day of March, 2019 and 23rd March, 2019 respectively, with the under-listed candidates contesting on the platform of their respective political parties as following:-
S/N
NAME OF CANDIDATE
GENDER
POLITICAL PARTY
1 ENWERE COLLINS CHIDIEBERE M A
2 EGU, OBINNA AMBROSE M AA
3 MELAH CHRYSANTUS CHIBUEZE M AAC
4 NZEAKOR JOHN CHIMAOBI M AAP
5 ANYANWU THADDEUS NNANNA M ACD
6 NWORGU STEPHEN IHEMADU M ACPN
7 OPARA CHINEDU CASMIR M ADC
8 NLEM OCHENNA C. M ADP
9 OPARA CHARLES M AGA
10 STEVEN HAPPINESS ODOCHI M AGAP
11 OKERE STANNISLAUS UGOCHUKWU M APC
12 DIALA CHIMA FESTUS M APGA
13 NKOTA GERALD CHIDIA M APP
14 UKAEGBU CHIBUEZE CHRISTOPHER M AUN
15 AMANZE RICHARDS M CAP
16 IHEKORONYE IBE M DA
17 NZE USMAN CHIDI ALOZIE M DPC
18 ANYANWU GABRIEL NDUWUEZE M GPN
19 NNABUGWU NNANNA SUNDAY M ID
20 OSUJI CHIBUIKE ALEIUS M JMPP
21 EKEJI O. EMMANUEL M LP
22 DIALA CHRISTOPHER ONYEJELAM M MPN
23 OKERE CHUKWUEMEKA M NDLP
24 OBASI JANE C. F NEPP
25 NWANEGWO ROBERT F NUP
26 AMADI JOHNPAUL N. M PDC
27 OKEREKE TOCHI S. M PDP
28 LEO KANU E. M PPA
29 UJU MGBEMERE JOSIAH M PPC
30 OKEREKE CHIMEMENA QUINCY M PPN
31 ONUAODR UCHE R. M PRP
32 AMADI CHIDI M RP
33 CHIEF EMMA AMUSHIE M SAP
34 PRINCE UGONNA OKERE M UPC
35 COLLINS CHIDIEBERE ENWERE M UPP
36 AGWARA PATRICE EBERECHUKWU M YDP
37 AMAJUOYI NNENNA NGOZI F YES
38 MBATO CLEMENT AMAECHI M YPP
39 CHRISTIAN NWAORGU EZE M ZLP
Paragraph 10
Your Petitioner states further that the scores of the candidates and their respective political parties at the election declared and announced by the 1st & 2nd Respondents on the 23rd day of March, 2019 are as follows:-
S/N
NAME OF CANDIDATE
GENDER
POLITICAL PARTY
TOTAL VOTES RECEIVED BY CANDIDATE/POLITICAL PARTY FIGURES WORDS
1 ENWERE COLLINS CHIDIEBERE M A 241 TWO HUNDRED & FORTY-ONE
2 EGU, OBINNA AMBROSE M AA 7557 SEVEN THOUSAND, FIVE HUNDRED AND FIFTY-SEVEN
3 MELAH CHRYSANTUS CHIBUEZE M AAC 126 ONE HUNDRED AND TWENTY-SIX
4 NZEAKOR JOHN CHIMAOBI M AAP 36 THIRTY-SIX
5 ANYANWU THADDEUS NNANNA M ACD 14 FOURTEEN
6 NWORGU STEPHEN IHEMADU M ACPN 10 TEN
7 OPARA CHINEDU CASMIR M ADC 74 SEV ENTY-FOUR
8 NLEM OCHENNA C. M ADP 166 ONE HUNDRED AND SIXTY-SIX
9 OPARA CHARLES M AGA 126 ONE HUNDRED AND TWENTY-SIX
10 STEVEN HAPPINESS ODOCHI M AGAP 151 ONE HUNDRED AND FIFTY-ONE
11 OKERE STANNISLAUS UGOCHUKWU M APC 5670 FIVE THOU
