ENGR. ONWUKAIKE NWAMBAM v. CHIEF INNOCENT UTULOR UGOCHIMA & ORS.
(2010)LCN/4003(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of September, 2010
CA/E/EPT/20/2007
RATIO
ADMISSION: WHETHER THE ERRONEOUS OR DELIBERATE ADMISSION BY A PARTY OF A NON-EXISTING FACT WILL IN LAW AUTOMATICALLY MAKE A NON-EXISTING FACT TO BECOME REAL
In the cases of Odutola vs. Papersack Nig. Ltd. (supra) and Ugwu vs. Ararume (2007) All FWLR (Pt. 377) 807 at 860, it was held that the erroneous or deliberate admission by a party of a non-existing fact does not in law automatically make a non-existing fact to become real. PER MOJEED ADEKUNLE OWOADE, J.C.A.
ADMISSION: CONDITIONS UNDER WHICH AN ADMISSION AGAINST INTEREST WILL BE VALID IN FAVOUR OF THE ADVERSE PARTY
In Odutola vs. Papersack Nig. Ltd. (supra) at page 1235, the Supreme Court per Tobi, JSC, held that: “….an admission against interest in order to be valid in favour of the adverse party must not only vindicate or reflect the material evidence before the court, it must also vindicate the legal position. Where an admission against interest does not vindicate or reflect the legal position it will be regarded for all intents and purposes as superfluous and a court of law is entitled not to assign any probative value to it … ” PER MOJEED ADEKUNLE OWOADE, J.C.A.
NOMINATION OF CANDIDATE: HOW THE LEGAL STATUS OF A VALIDLY NOMINATED CANDIDATE MAY BE ESTABLISHED
To establish the legal status of a validly nominated candidate, it is incumbent on the appellant to prove compliance with the provisions of Section 32, 33 and 35 of the Electoral Act, 2006. PER MOJEED ADEKUNLE OWOADE, J.C.A.
PUBLICATION OF NAMES: WHEN WILL THE INDEPENDENT NATIONAL ELECTORAL COMMISSION WILL BE PUT UNDER THE LEGAL DUTY TO PUBLISH THE NAME OF THE SPONSORED CANDIDATE AS A CANDIDATE STANDING VALIDLY NOMINATED FOR THE ELECTION
In Ugwu vs. Ararume (2007) 9 NWLR (Pt. 1038) 127, the Supreme Court made it abundantly clear that it is the fulfillment of the statutory preconditions enshrined in such pertinent Sections of the Electoral Act, 2006 as SS. 32, 33 and 35 that puts INEC under the legal duty to publish the name of the sponsored candidate as a candidate standing validly nominated for the election. This requirement enjoins the petitioner to plead and tender legally admissible evidence showing that he was duly nominated and sponsored by a registered political party, that his name was submitted in the prescribed form to INEC accompanied by an affidavit duly sworn by the nominee deposing to his qualifications as required by the 1999 Constitution and the Electoral Act, 2006. PER MOJEED ADEKUNLE OWOADE, J.C.A.
UNLAWFUL EXCLUSION FROM CONTESTING IN AN ELECTION: DUTY OF A CLAIMANT TO SUSTAIN AN ARGUMENT ON UNLAWFUL EXCLUSION FROM CONTESTING IN AN ELECTION
Indeed, to sustain an argument on unlawful exclusion, the claimant must first establish valid nomination by a recognized political party and publication by INEC of his name as the candidate for the election. It is only after the claimant has established the investiture of legal right of a duly nominated and officially published candidate for an election that the burden of proving lawful exclusion can conceivably arise in relation to the returned candidate. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN M. OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
ENGR. ONWUKAIKE NWAMBAM Appellant(s)
AND
1. CHIEF INNOCENT UTULOR UGOCHIMA
2. MR. I. P. C. OKPALAEZE (RETURNING OFFICER FOR EZZA SOUTH/IKWO FEDERAL CONSTITUENCY)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4 PEOPLES DEMOCRATIC PARTY
5 THE CLERK OF THE NATIONAL ASSEMBLY Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgement): This is an appeal against the judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting at Abakaliki, Ebonyi State.
The appellant who was the petitioner before the lower tribunal filed his petition on 14th day of April, 2007 against the election of the 1st respondent into the House of Representatives for Ezza South Federal Constituency held on the 21st day of April, 2007. Therein, the petitioner/appellant sought the following reliefs against the respondents:
“(a) An order nullifying or invalidating the returns of the 1st respondent as the winner of the said election;
(b) The petitioner is the duly elected member representing the Ezza South/Ikwo Federal Constituency of Ebonyi State in that he was the person validly nominated by the 4th respondent as its candidate for the election.
(c) An order directing the 2nd and 3rd respondents to issue a certificate of return to the petitioner as winner of the election.
(d) An order of injunction preventing the clerk of the National Assembly; and
(e) An order of injunction restraining the 3rd respondent from issuing a certificate of return to the 1st respondent on the 28th of May 2007 or at any other time.
IN THE ALTERNATIVE
(a) That the election be nullified entirely and that the 3rd respondent be ordered to conduct a bye-election in the constituency with the petitioner as candidate of the 4th respondent.
The grounds of the petition are that:
(a) The 1st respondent was at the time of the election, not qualified to contest the election.
(b) The petitioner was validly nominated but was unlawfully excluded from the election.”
Pleadings were filed and exchanged. At the trial, the Petitioner/Appellant gave evidence and tendered documents to prove his case while the 1st respondent testified, called two other witnesses and tendered documents. The 2nd – 5th respondents did not call any witness in support of their replies.
In dismissing the appellant’s petition at page 229 of the record, the lower tribunal held inter alia:
“Having found that the petitioner was not a candidate of the fourth respondent at that election, he cannot therefore be returned as elected. The said election cannot also be nullified for a bye-election in which the petitioner would participate in the light of the Tribunals finding that the first respondent was the candidate of the fourth respondent. Accordingly, the only issue in this petition is resolved against the petitioner in favour of the respondents. In the circumstance, the Tribunal finds no merit in this petition and it is hereby dismissed……………”
Dissatisfied with the above decision the petitioner/appellant filed this appeal. The relevant briefs of argument for this appeal are as follows:
1. Amended appellant’s brief of argument dated 17/3/2010 and filed on 22/3/2010 – settled by Lateef Fagbemi, SAN.
2. Amended 1st respondent brief of argument dated 30/3/2010 and filed on 31/3/2010 – settled by Dr. J. O. Ibik, SAN.
3. Amended joint brief of argument of 2nd and 3rd respondents dated 6/5/2010 filed on 12/5/2010 and deemed filed on 3/6/2010 – settled by Matthew Ugwuocha, Esq.
4. 4th respondent’s Amended brief of argument dated 11/4/2010 and filed on 12/4/2010 – settled by G. O. fodile Okafor, SAN.
5 Amended appellants reply to amended 1st respondent’s brief of argument dated 4/6/2010, filed on 7/6/2010 and deemed filed on 9/6/2010 – settled by Lateef O. Fagbemi, SAN.
6 Appellant’s reply to 4th respondent’s amended brief of argument dated 10/5/2010 and filed on 14/5/2010 – settled by S.O. Ajayi Esq. for Lateef O. Fagbemi & Co.
7. Additional Authorities by 4th respondent dated 23/6/2010 – filed by G. Ofodile Okafor, SAN.
Appellant states that he is abandoning ground 1 of the Amended Notice of Appeal and nominates the following issues for determination:
“(a) Whether the Tribunal was right in its reasoning that the event that took place before the election were outside its operational scope – Ground 3.
(b) Who was the candidate of Peoples Democratic Party at the House of Representatives Election of 21st April 2007 and ought to be returned as the Honourable member of the House of Representatives for Ezza South/lkwo Federal Constituency? Grounds 2 & 4.
(c) What is the effect of the failure to defend or call evidence by the 2nd – 4th respondents and whether the Tribunal was right to have refused to place reliance on the admission of the 1st respondent? Grounds 5 and 6.”
The 1st respondent filed a Notice of Preliminary objection and presumably adopted the three issues formulated by the Appellant for determination. The 2nd and 3rd respondents formulated the following three issues for determination:
“(i) Who was the PDP’s candidate at the said election to Ezza South/lkwo Federal Constituency of Ebonyi State seat held on 21/4/2007?
(ii) Whether the plaintiff/appellant is entitled to judgment on a platter of gold where a defendant did not lead evidence in support of pleadings.
(iii) Whether trial court was right to have declined jurisdiction to entertain the appellant’s petition on grounds of locus standi and pre-election matter.”
The 4th respondent also adopted the issues formulated by the appellant. By a Notice of Preliminary Objection, the 1st respondent challenged the competency of:
1. the original appellant’s brief of argument, and
2. the amended appellant’s brief of argument.
Notwithstanding: –
(a) The amendment of Issue 1 in the original appellant’s brief as contained in the Amended appellant’s brief of argument dated 17th March 2010 filed on 22nd March 2010, and
(b) The Amended Notice of Appeal dated 7th July 2008 but filed on 9th July 2008.
The grounds of the objection by the 1st respondent on which his arguments in support of the preliminary objection were based can be summarized as follows:
(i) No leave was sought to incorporate in the original appellant’s brief arguments therein contained distilled from issues in the 6 grounds of appeal contained in the purported Amended Notice of Appeal dated 13/12/07 but filed without leave of court,
(ii) No deeming order was sought nor granted to regularize the original appellant’s brief consequent upon leave being granted to amend, file and serve Amended Notice of Appeal dated 7th July 2008 but filed on 9th July 2008.
(iii) A court process requiring prior leave of court for its validity becomes ipso facto, incompetent and liable to be struck out if filed and served without leave, and without a deeming order, and
(iv) The order of court dated 17th March 2010 granting leave to amend issue one in the original Appellant’s brief, and the consequent amendment as contained in the amended appellant’s brief dated 17th March 2010 but filed on 22nd March 2010 is too narrow and circumscribed to salvage the appellant’s brief.
In his amended appellant’s reply to amended 1st respondent’s brief, learned senior counsel for the appellant submitted in reaction that the preliminary objection and all the arguments by the 1st respondent in support are misconceived. That from the totality of the objection, it would appear that the crux of the argument of the 1st respondent is to the effect that since the original appellant’s brief of argument was not amended pursuant to the order of the court granting leave to amend the initial notice of appeal, the said brief remains incompetent notwithstanding the fact that same was subsequently amended albeit based on another ground entirely.
Appellant’s counsel submitted that though the initial brief of argument incorporated argument in support of grounds of appeal for which leave have not been first sought and obtained, that the subsequent leave granted by this Honourable court on the 7th day of July 2008 completely ratified the said grounds notwithstanding the fact that the court never made an order that the appellant’s brief should be amended consequent upon the leave granted. Counsel relied on the cases of Adesanoye vs. Adewole (2004) 11 NWLR (Pt. 884) page 414 at 425 and Afolabi vs. Mudasiru (2001) 3 NWLR (Pt. 1181) 328 at 336 and submitted that when an amendment of a process is granted, same operates as a complete replacement of the initial process filed. And that, it is a settled principle of law that, when a court makes an order granting leave to amend a process and effect is given to that order, the original process filed becomes extinct. Counsel observed that the 1st respondent dissipated too much energy in attacking the original appellant’s brief of argument, which is now extinct. Appellant’s counsel submitted that the amended appellant’s brief was deemed as properly filed on 17th March 2010. And, this, by the enabling positive orders of this Honourable court deeming the appellant’s amended brief as being properly filed, life has been breathed into that brief and regularized any defect (which is not conceded) that may have afflicted the initial brief. On this, counsel relied on the case of Erisi vs. Idike (1987) 4 NWLR (Pt. 66) 503 at 513 and 518 – 519. Counsel submitted that when this Honourable court granted an order of amendment of the Notice of Appeal on the 7th day of July, 2008 and an order that a first Amended Notice of Appeal be filed, the Amended Notice of Appeal replaces the initial one earlier filed. He relied on the cases of Unipetrol (Nig.) Plc. vs. Buraimoh (2004) 15 NWLR (Pt. 897) page 641 at 655 and Adeyemo vs. Akintola (2004) 12 NWLR (Pt. 887) page 390 at 400 and submitted that the position of the law is that when an amendment is granted such an amendment dated back to the date of filing of the initial process.
Counsel submitted that the Amended Notice of Appeal dated 7th July 2008 and filed on the 9th day of July 2008 completely takes the place of the initial Notice of Appeal earlier filed and in the circumstance, same in the eyes of the law is the basis upon which the appellant’s brief of argument was filed notwithstanding the fact that in the real sense of it same post dated the Appellant’s brief of argument.
On the argument of the learned senior counsel to the 1st respondent that notwithstanding the fact that the appellant ultimately filed an Amended Appellant’s brief of argument on 22nd March, 2010, such brief cannot supplant Appellant’s brief earlier filed since the leave pursuant to which the amendment was granted was not all encompassing but limited to the schedule specified in the order of court. Appellant’s senior counsel reiterated that once a process is amended, the amended one completely takes the place of the original one, therefore, in the circumstance of this case the only brief of argument which is extant it that one filed on 22nd March, 2010, consequent on an Amended Notice of Appeal.
On the competence of the Appellant’s amendment to the original notice of appeal pursuant to the order of this court dated 7th day of July 2008, Appellant’s senior counsel submitted that the 1st respondent had the opportunity to object at the time of hearing the motion for amendment yet the 1st respondent waived his right to do so and that he cannot now complain against such irregularity (if any).
In essence, said appellant’s counsel, the complaint by the 1st respondent in his brief pertaining to suit number not being stated on the face of the notice of appeal is no more than a hair splitting exercise which should not be allowed.
Appellant’s counsel relied on the case of Effiong vs. Ikpemei 1999) 6 NWLR (Pt. 606) 272 and submitted that the 1st respondent having taken steps in relation to the said Motion on Notice and participated in the hearing of same will not be allowed to complain an irregularity (if any) which he himself has accepted, waived and acquiesced.
I must say that the arguments of the learned senior counsel for the 1st respondent in respect of the preliminary objection goes round in a vicious circle not amounting to any serious attack on the processes filed by the appellant.
For example, the 1st respondent’s first complaint as regards the appellant’s Amended Notice of Appeal is two fold. The first is that the Amended Notice of Appeal is vague and failed to disclose the suit number of the election petition before the lower Tribunal. The second is that the Appellant did not file a proposed Amended Notice of Appeal before obtaining the order granting leave to amend the Notice of Appeal and a deeming order that the Amended Notice of Appeal already filed as having been duly filed and served. The truth of the matter as pointed out by the learned senior counsel for the appellant is that (i) there was no objection by the 1st respondent before the court order was made (ii) the 1st respondent had since taken further steps in the proceedings and (iii) perhaps more importantly the court order of 7th July 2008 properly deemed the appellant’s Amended Notice of Appeal already filed as having been duly filed and served.
The second ground of preliminary objection by the 1st respondent deals with the competency of (a) the original Appellant brief of Argument and (b) the Amended Appellant’s brief of Argument. Here, one must point out that any arguments relating to the original appellant’s brief of argument which is superseded and extinct cannot indeed be countenanced in the face of a valid and extant appellant’s Amended brief of argument.
In respect of the extant Amended Appellant’s brief, learned senior counsel for the 1st respondent submitted that since the Amended Appellant’s brief of Argument dated 17th March 2010 but filed on 22nd March, 2010 was amended and filed pursuant to leave sought and obtained within the narrow scope of the schedule specified in the order of the Honourable court dated 17th March, 2010, the said Amended brief of argument did not, and could not legally supplant, supercede or replace the original appellant’s brief of argument. According to the 1st respondent, this is because leave when sought and obtained only avails the party to the extent and for the purpose for which leave was ostensibly sought and granted. The party is not at liberty to extend or expand the scope of the leave and/or to rely on a wider scope of such leave after it has been granted.
The above argument by the learned senior counsel for the 1st respondent was fully met by the arguments contained in paragraphs 2.04 and 2.08 of the amended appellant’s reply to amended 1st respondents brief of argument dated 30th March, 2010 but filed on 31st day of March 2010.
The first, that the Amended Appellant’s brief was deemed as properly filed by enabling orders of this Honourable court made on 17th March, 2010. The positive order of this Honourable court deeming the Appellant’s amended brief of argument as being properly filed has breathed life into that brief and regularized any defect (which is not conceded) that may have inflicted the initial brief. Second, that once a process is amended the amended one completely takes the place of the original one therefore in the circumstance of this case, the only brief of argument which this court is obliged to consider is the Appellant’s amended brief filed on 22nd March 2010, which was filed consequent upon an Amended Notice of Appeal.
In relation to the two grounds of objection by the 1st respondent, I hold that whatever defects in the Appellant’s Amended Notice of appeal was cured by the deeming order of this court in relation to the Amended Notice of Appeal made on 7th July, 2008 and similarly all defects in the Appellant’s original brief of argument was cured by the order of leave and deeming order by this Honourable court in respect of the Amended Appellant’s brief made on 17th March, 2010.
In overruling the preliminary objection of the 1st respondent in the instant case, it must be further pointed out that the attitude of the court is to eschew technicalities which could clog the ends of justice in favour of hearing the complaints of the parties on merit.
As was pointed out by Iguh, JSC, in Thomas Enivan Olumesan vs. Ayodele Ogundepo (1996) 2. S. C. N. J. 172 at 189:
“Although blunders may occur from time to time, it may amount to injustice to insist that because a blunder during interlocutory or in the course of proceedings has been committed the party blundering must necessarily incur the penalty of not having the dispute between him and his adversary determined upon the merits ”
Clearly, blunders which may lead to technical advantage for the opposing party cannot take the place of hearing on merit. This is because, it is well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their cases. See e.g. Mohammed, JSC. In Nabsons Limited vs. Mobil Oil Nigeria Limited (1995) 7 S.C.N.J. 267 at 277.
The 1st respondent’s preliminary objection is accordingly overruled. Henceforth in this appeal, the case of the appellant shall be considered on one side of the scale while the case of 1st respondent, the 2nd and 3rd respondents and the 4th respondent would be considered together as the case of the “Respondents”. This is for reason of the shared common interest between the three sets of respondents and also for convenience.
On Issue No. 1, learned senior counsel for the Appellant submitted that the trial tribunal was in serious error when it held that “a person who has any quarrel with the Independent National Electoral Commission (INEC) over matters which occurred before an election has to go to the regular courts in appropriate cases to determine that”.
Learned senior counsel to the Appellant submitted that the lower tribunal in arriving at the above decision was in serious error because the issue raised in the petition did not arise before the election but during the election, therefore this is not an appropriate case where the petitioner can approach the regular court but an election Tribunal. He submitted that the Appellant’s petition as contained at pages 1 – 9 is a petition properly and validly presented by the Appellant, has no iota of fact to cloth it with pre-election matter or dispute.
Counsel of the Appellant relied on the cases of Adeyemi vs. Opeyor (1976) (9-10) SC 31 and Abubakar vs. INEC (2004)1 NWLR (Pt. 854) 217 at 231 and submitted, it is the plaintiffs case which the court will look into in determining whether it has jurisdiction to entertain it and not the reply or any defence to the petition.
Learned senior counsel for the appellant submitted that a community reading and effect of paragraphs (i) – (xviii) of the petition and the evidence adduced by the parties before the Tribunal shows that the 1st respondent was never the candidate presented, nominated and /or sponsored by the 4th respondent to contest the election into the House of representatives for Ezza South/Ikwo Federal constituency of Ebonyi State held on 21st April, 2007. That, rather, the Appellant was the candidate of the 4th respondent.
Learned senior counsel for the Appellant noted that since the appellant has proved that he was the candidate at the election, the onus has shifted to the 1st and 4th respondents to discharge the burden of proof. Counsel added, that to the contrary the 1st respondent admitted:
(a) That the petitioner won the primary election and in truth his name was submitted to the 3rd respondent.
(b) That there was no proof of substitution of the candidature of the petitioner.
In reiterating that the Appellant’s case does not belong to the category of pre-election cases Learned senior counsel quoted the reliefs of the petitioner and the grounds for the reliefs and submitted that based on the grounds and the reliefs of the appellant and having regards to the relevant paragraphs of the petition, the issue raised by the petitioner is not who should be the candidate of the 4th respondent for the House of Representative election in Ezza South/Ikwo Federal Constituency but whether the 2nd and 3rd respondents unlawfully excluded the candidate sponsored by the 4th respondent and presented to them by the 4th respondent. That, as soon as the 4th respondent presented and/or submitted the name of the appellant without valid substitution, the matter has gone beyond the realm of pre-election dispute.
Learned senior counsel for the appellant referred to the cases of Senator Uba vs. Ukachukwu (2004) 10 NWLR (Pt. 881) 224 at 225 ANPP vs. INEC (2004) 7 NWLR (Pt. 871) 16 at 55, noted that the Peoples Democratic Party (PDP) who was sued as the 4th respondent did not lead evidence to deny the claim of the appellant as its candidate at the election and submitted that the combined effects of sections 140(1), 144(1) (2) and 145(1) of the Electoral Act read together with paragraphs (x), (xi), (xii), (xiii), (xiv), (xv), (xvi) and (xvii) of the appellant’s petition show clearly that the complaint is not one of the political question or pre-election dispute. That, the trial tribunal has jurisdiction and in fact is only the trial tribunal that has jurisdiction to determine the appellant’s complaint predicted on his exclusion as a candidate at the election.
Learned senior counsel for the appellant further relied on the cases of Adebusuyi vs. Oduyoye (2004) 1 NWLR (Pt. 854) 406 at 427, Fffiong vs. Ikpeme (1999) 6 NWLR (Pt. 606) 260 at 277 and Obaanyaa vs. Babafemi (2000) 15 NWLR (Pt. 689) 1 at 15 and submitted that the appellant’s petition has equally been grounded on the provision of section 144(1) (d) of the Electoral Act, 2006 that an election may be questioned on the ground that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Learned senior counsel for the appellant submitted further that the appellant’s cause of action arose after the election when the 2nd and 3rd respondents did not announce him as the candidate who won the election as the winner and thus announced and returned the 1st respondent thereby making it clear that the appellant has been excluded at the 21st April, 2007 House of Representatives Election in Ebonyi State.
Appellant’s counsel also relied on the provision of Section 69(c) of the Electoral Act, 2006 and submitted that in the circumstance, the appellant was not left without a remedy because by Section 69 of the Electoral Act, “the decision of the returning officer on any question arising from or relating to:
“(c) Declaration, scores of candidates and the return of a candidate, shall be final subject to review by a Tribunal or court in elections petition proceedings under the Act.”
Counsel submitted that the complaint of the appellant herein is not a pre-election matter and assuming though not conceding it is so, the election Tribunal still has Jurisdiction contrary to the reasoning of the tribunal. The tribunal was therefore beclouded by the averments in the respondents’ defence when it erroneously held that the petition relates to pre-election matter. The respondents, said counsel, merely, technically and erroneously clothed the petition with pre-election dispute when it was not so.
Appellant’s counsel furthered, that the unlawful exclusion from the election of the petitioner/appellant became apparent after the election when instead of the 4th respondent sponsored candidate, another candidate who was not submitted by the 4th respondent was declared winner. And that the issues involved in the petition are therefore neither preliminary to the petition nor pre-election but election matter.
In reacting to appellant’s Issue No. 1, the respondents submitted that the lower tribunal was not wrong to have said that the events that took place before the election were outside its operational scope. That by virtue of the provision of Section 258(2) of the 1999 Constitution, the operational or Jurisdictional scope of the Tribunal is to determine petitions as to whether any person has been validly elected…. as a member of any Legislative House”.
The respondents relied on the cases of Zaranda vs. Tilde & 4 Ors. (2008) 10 NWLR (Pt 1094) 184 at 210 and Ugwu vs. Ararume (2007) 12 NWLR (Pt. 1048) 367 at 510 – 511 and submitted that where a member of a political party feels aggrieved because both the political party to which he belongs and INEC side lined him, after having been initially and properly screened and nominated to contest for an election, but at the nick of time had been substituted by another member of the party he has every right to go to a court of law to intervene and protect his right to be allowed to contest the election. Respondents’ counsel submitted that the Tribunal determined the petition on merit and dismissed same because:
“Having found that the petitioner was not a candidate of the fourth respondent at that election, he cannot therefore be returned as elected. The said election cannot also be nullified for a bye-election in which the petitioner would participate in the light of the Tribunal’s findings that the first respondent was the candidate of the fourth respondent. Accordingly the only issue in this petition is resolved against the petitioner in favour of the respondents. In the circumstance, the tribunal finds no merit in this petition, and it is hereby dismissed.”
Learned counsel for the respondents more especially through the 4th respondent further submitted that the expression by the Tribunal which led to appellant’s Issue No. 1 contained in lines 31 – 39 at pages 228 – 229 of the record that is:
“The petitioner and even the respondents spent time pleading facts and leading evidence on facts that took place before the election of 21st April 2007 for example, the petitioner in sub paragraphs vi, vii, viii, ix, x etc of the petition and paragraph 16 of the first respondent’s reply touched on matters that strictly have no bearing to the petition and outside the operational scope of the tribunal Evidence led on these facts do not fall within the jurisdictional scope of the pleadings or patriotically adduced in evidence (sic) not being relevant to the petition, the tribunal cannot rely on them to reach conclusion in this petition.” can best be described as obiter dictum.
The reason according to the respondents is that the tribunal did not in fact decline jurisdiction but tried to separate the wheat from chaff, picked the real issues in contention and decided the petition on the merit based on relevant facts and evidence before it.
According to the respondents, the appellant who had the burden to prove valid nomination but unlawful exclusion failed to do so as he did not fulfill the preconditions to qualify him as validly nominated candidate of the 4th respondent and thus was lawfully substituted.
The respondents submitted that the condition for sponsorship at an election was payment of the nomination fee and filing of the expression of interest form that, it was the case of the appellant/petitioner that he issued a cheque for payment of the nomination fee which entitled him to participate and eventually won in the party’s primary election of 25/11/2006.
That it was in evidence that the appellant’s cheque was dishonoured and the PDP National Secretariat withdrew his candidacy and ordered the Ebonyi Chapter of the party (PDP) to conduct a fresh primary election that the fresh primary election was conducted on 14/12/2006, the 1st respondent was declared winner and his name was forwarded to INEC as the PDP’s sponsored candidate for the election.
The effect of the aforementioned facts according to the respondents is that the petitioner/appellant was not included in the final list of candidates for the said election as published by the 3rd respondent, (INEC) and so could not have been excluded. Respondents submitted that it was the petitioner’s/appellant’s party (PDP) that held the ace and instructed INEC that it had substituted the previous name (of the petitioner/appellant) which was withdrawn and replaced with the name of 1st respondent after the fresh primary of 14/12/2006.
In deciding Issue No. 1, I must first express my agreement with the counsel to the respondents more especially G. Ofodile Okafor, SAN, counsel for the 4th respondent that the statement by the Tribunal that “the ………. events that took place before the election of 21st April 2007. For example, the petitioner in sub paragraphs ……And paragraph 16 of the first respondents reply touched on matters that strictly have no bearing to the petition and outside the operational scope of the tribunal …………..”On which appellant’s ground 3 and Issue No. 1, were based is indeed obiter dictum. This is because, the lower tribunal did not depend or rely on any such grounds or reasoning in reaching its decision on the petition. Rather, the only issue in the petition which the tribunal resolved in favour of the respondent on page 229 of the record is that the petitioner was not a candidate of the fourth respondent at that election, he cannot therefore be returned as elected…………”
It need not be said that as a matter of law, the only appealable portion of a judgment of a court of law or tribunal is the ratio decidendi and not the obiter dictum in a case. Beyond this, and contrary to the views of the learned senior counsel for the appellant in this case the facts presented to the Tribunal which formed the basis of the lower tribunal’s decision shows the case of the appellant indeed as a pre-election matter which perhaps manifested itself after the election itself. In my humble opinion, the fact that the appellant’s case came to fore after the said election does not change its substance from that of a pre-election matter to a non pre election matter. The garment of the appellant’s case remains that of a pre-election matter even though not quickly seeing by or realized to be so by the Tribunal at the early stages of the proceedings.
The simple interpretation that could be given to the decision of the tribunal is that the appellant did not prove that he was validly nominated but unlawfully excluded. For example, to prove that he was validly nominated but unlawfully excluded, the petitioner must prove:
(a) That he was validly nominated by his party;
(b) That the election was conducted and concluded;
(c) That a winner was declared; and
(d) That his name was not included in the list of contestants.
Aside from specifically stating or pleading these requirements, the petitioner must prove each of these ingredients at the trial see Egolum vs. Obasanio (1999) 9 NWLR (Pt. 611) 355, Effiong vs. Ikpeme (1999) 6 NWLR (Pt. 606) 260. Sections 32, 33, 34, 35, and 36 of the Electoral Act, 2006, stipulate the guidelines for parties to nominate, sponsor, withdraw and substitute candidates for election and, any petitioner alleging that he was validly nominated by his party but unlawfully excluded by the electoral body INEC carries the burden of proving that any or all of the provisions of Sections 32 – 36 of the Act was not complied with.
These requirements enjoin the appellant to prove and tender legally admissible evidence showing that he was duly nominated by his party, and his name submitted to INEC in the prescribed form accompanied with duly sworn affidavit stating that he was validly qualified in accordance with the Electoral Act, 2006, and the 1999 Constitution, in the instant case, the appellant failed to tender any documents in support of his valid nomination. The purported oral admission of the 1st respondent cannot in the circumstance suffice or substitute the requirement of the law that the submission of the nomination of the appellant by his party to INEC must be in the prescribed form under the provisions of Sections 32 – 36 of the Electoral Act, 2006. See, Odutola vs. Papersack Nig. Ltd. (2007) All FWLR (Pt. 350) 1214.
In the cases of Odutola vs. Papersack Nig. Ltd. (supra) and Ugwu vs. Ararume (2007) All FWLR (Pt. 377) 807 at 860, it was held that the erroneous or deliberate admission by a party of a non-existing fact does not in law automatically make a non-existing fact to become real.
In Odutola vs. Papersack Nig. Ltd. (supra) at page 1235, the Supreme Court per Tobi, JSC, held that:
“….an admission against interest in order to be valid in favour of the adverse party must not only vindicate or reflect the material evidence before the court, it must also vindicate the legal position. Where an admission against interest does not vindicate or reflect the legal position it will be regarded for all intents and purposes as superfluous and a court of law is entitled not to assign any probative value to it …”
In the instant case, the purported oral admission of the 1st respondent does not vindicate or reflect the position of the law under Section 32 of the Electoral Act, 2006. Indeed, as it turned out to be from the facts presented in evidence to the lower tribunal the appellant’s case would have been presented to a regular court of law as a pre-election matter. First, because Section 285(2) of the 1999 Constitution provides inter alia that:
“There shall be established in each state of the federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunal which shall, to the exclusion of any court or tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
Also, in the case of Ugwu vs. Ararume (supra) at pages 510 – 511, the Supreme Court held inter alia that:
“…..Where a member of a political party feels aggrieved because both the political party to which he belongs and INEC side lines him after having been initially and properly screened and nominated to contest for an election, but at the nick of time had been substituted by another member of the party. I think he has every right to ask a court of law to intervene and protect his right to be allowed to contest the election.”
In view of the foregoing more especially the point that the statement credited to the tribunal which led to appellant’s ground 3 and Issue No. 1 is obiter, Issue No. 1 is resolved against the appellant.
On Issue No. 2, learned senior counsel for the appellant submitted that the trial tribunal erred in law when it held that the petitioner/appellant was not the candidate of Peoples Democratic Party at the 21st April, 2007 House of Representatives election but the 1st respondent. He submitted that the appellant’s case and/or contention before the tribunal was that he was the candidate of the 4th respondent but unlawfully excluded by the 2nd and 3rd respondents at the said election while the 1st and 4th respondents are contending that the appellant was not the candidate of the 4th respondent at the election.
Appellant’s counsel referred to the provision of section 137(1) of the Evidence Act as amended by Decree No. 61 of 1996 and submitted that by the provisions it is clear that the burden of proving that the petitioner/appellant was a candidate of the 4th respondent lies on the appellant but upon the evidence of the appellant in proof of this assertion, the burden of proof will then shift to the 4th respondent to prove that the appellant was not its candidate at the said election and on the 2nd – 3rd respondents to prove that the appellant’s name was not submitted and that he was not excluded at the election.
On this, learned senior counsel for the appellant further referred to the cases of Nigerian Bottling Co. Ltd. vs. Ngonadi (1985) 5 SC 317, Swen vs. D. Zumgwe (1966) NMLR 297 and Levers vs. Morris (1972) 1 QB 221.
Counsel submitted that having agreed that the petitioner/appellant was the candidate who won the PDP primaries and his name has been submitted to INEC, then the onus of proof has shifted to the 1st and 4th respondents to prove that the 1st respondent was the candidate of the 4th respondent. And also that the onus is on the 1st respondent to prove that the petitioner has been validly substituted.
The next issue to be considered, said appellant’s counsel is having submitted the name of the appellant to the Independent National Electoral Commission, could the appellant be denied such status without being lawfully replaced by the party (PDP).
On this score, learned senior counsel for the appellant referred to the provision of section 34(1) of the Electoral Act, the case of Ararume vs. INEC (2007) 9 NWLR (Pt. 1038) 127 at 162 – 167 and argued that once a party has submitted the name of its candidate to INEC, it can only substitute that name only if it can provide cogent and verifiable reasons. In the instant case, said counsel, it is undisputable that the 1st respondent’s contention now is that his name was substituted for the name of the appellant. This, according to counsel, implies that the appellant was already the candidate of the 4th respondent otherwise there would have been no need for substitution, if any.
Learned senior counsel for the appellant further argued that assuming but not conceding that there was substitution, the next to consider is whether there was cogent and verifiable reasons to make the purported substitution valid in law. He submitted that the purported substitution of the appellant if any, is not valid and proper in law because there was no reason at all let alone cogent and verifiable reasons. Appellant’s counsel submitted that the evidence of the 1st respondent as DW3 at page 159 of the record that “there is no proof of substitution of candidate, and no reason for substitution…..” which constitutes an admission of the appellant’s case is the best evidence to be relied upon by the trial tribunal to hold that the 4th respondent never substituted the name of the appellant and that he was the valid candidate of the 4th respondent who contested the election to the House of Representatives for Ezza South/Ikwo Federal Constituency. And that the trial tribunal was therefore in gross error to have held that the 1st respondent was the candidate of the 4th respondent at the said election having woefully failed to discharge the onus of proof on him that there are cogent and justifiable reasons to have substituted the name of the appellant. On this, counsel urged that the appellant remains the candidate of the 4th respondent since no cogent or verifiable reasons have been given for his purported substitution.
Learned senior counsel for the appellant submitted further that the fact that the appellant did not know the number of votes scored by the 4th respondent or himself at the election will not remove him from being the lawful candidate of the 4th respondent as the tribunal wrongly held.
Counsel noted that the appellant is not competent to give oral evidence to vary the result of the election as declared by the 3rd respondent. Also, said counsel, from the con in which the appellant made the statement, the tribunal ought to have known that the appellant was referring to his score at the ward not the result of the whole election in the State. Counsel submitted that the petitioner’s statement that “I scored over seven thousand votes but I cannot remember the exact votes” clearly shows that the petitioner was giving evidence in respect of the election at his ward where he was from morning till the end of the election. In any event, said appellant’s counsel the petitioner pleaded the scores of PDP as the winner of the election and gave evidence in support of same at paragraph 18 of petitioner” statement on oath deposed to on 14th May, 2007.
Finally on Issue No. 2, learned senior counsel for the appellant noted that it is also the tribunal’s decision that apart from the petitioner/appellant, no other witness was called to show that the petitioner took part in that election or that any vote cast at the election for the candidate of the 4th respondent was cast for the petitioner. On this, counsel submitted that this opinion of the tribunal is grossly misconceived because the learned members of the tribunal had forgotten that no one can lead evidence as to the person a voter has voted for or will vote for by our secret ballot system.
On Issue No. 2, the respondents noted that the petitioner’s/appellant’s case is that he was validly nominated by the 4th respondent but unlawfully excluded. This ground, according to the respondents can only be invoked where a party nominates a candidate but the Electoral body excludes such a nominee. That, in the instant case, the appellant was not nominated by PDP as a candidate.
Counsel to the respondents submitted that the evidence of the Chairman of PDP (the 4th respondent) at pages 131 – 132 of the record that the 1st respondent was the validly nominated candidate of the PDP is the deciding factor. And that the onus lies on the party challenging an election to show either that he was a candidate at the election or a political party that participated in the election. On this, respondents’ counsel referred to the case of Egolum vs. Obasanjo (1999) 7 NWLR (Pt. 611) 355.
Respondents’ counsel submitted that the 1st, 2nd & 3rd and the 4th respondents denied that the petitioner/appellant was a candidate at the election. Therefore, on the state of pleadings, it is a sacred duty of the appellant to prove that he was validly nominated by the 4th respondent. The respondents admitted that the appellant was initially the candidate of 4th respondent but his name was substituted as a result of invalid nomination.
Counsel to the respondents noted that Exhibit 116 – INEC Form CF 004A – Notice of Withdrawal/substitution of candidate was tendered by the appellant. But that the attachments to the said Exhibit 116, which include proof of withdrawal of candidate, reason(s) for substitution and CF 002 and CF 001 of the new candidate were deliberately withheld by the appellant. Respondents’ counsel relied on the provision of section 149(d) of the Evidence Act and the cases of Udeaau vs. Benue Cement Co. Plc. (2006) 2 NWLR (Pt. 965) 600 at 616, Aabi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 125 and submitted that the effect of withholding the attachments by the appellant is that if they were produced, they will be against the appellant.
In response to paragraphs 4.07 (b) and 4.11 of the Amended Appellant’s Brief of Argument that the DW3’s evidence under cross-examination supported the appellant’s case that there is no proof of substitution and no reason for the substitution. Respondents submitted, firstly that there is proof of substitution by the evidence of the State Chairman of the PDP at pages 131 and 132 of the record. The respondents then quoted paragraphs 5 to 12 of the statement of oath adopted by the State Chairman of PDP as follows:
“5. That in paying for the forms the petitioner issued a cheque in favour of the 4th respondent.
6. That when the cheque was presented for payment, it was discovered that the cheque has bounced.
7. That as a result of the bounced cheque, the National Organizing Secretary of the 4th respondent wrote a letter to the chairman of Ebonyi State Electoral Panel dated 5th December, 2006 wherein the petitioner was disqualified either as an aspirant or a candidate of the 4th respondent.
8. That consequent upon the disqualification, a vacancy arose in the slot of Ezza South/Ikwo Federal Constituency.
9. That in order to fill the vacancy, the State Electoral Panel organized a fresh primary for the said constituency on the 14th of December, 2006.
10. That at the said primary, the 1st respondent was elected by consensus vote of 450.
11. That the State Electoral Panel issued a report to the National Secretariat of the 4th respondent dated 14th December, 2007 confirming the candidacy of the 1st respondent.
12. That it was the name of the 1st respondent that was submitted to the 3rd respondent as the candidate of the 4th respondent in the April 21st National Assembly Election.”
Secondly, said counsel to the respondents the above argument by the appellant is misconceived because it is not the responsibility of DW3, i.e., 1st respondent to prove that there was not reason for the substitution.
Relying on the case of Rimi vs. INEC (2005) 6 NWLR (Pt. 920) p. 81 respondents’ counsel submitted that the 4th respondent made a choice and the attitude of the court is to refrain itself from imposing a candidate on a party because the choice is purely the domestic affairs of the party. Nomination, said respondents’ counsel is the act of suggesting or proposing a person by name to an election body for an elective office. That, this certainly forms part of preliminary matter before the actual election is conducted – Ararume vs. INEC (2007) 9 NWLR (Pt. 1038) 127 at 162 – 163. That, if the candidate jumps the hurdle of nomination, his next task is to possess the mandatory qualification which will admit him to contest the election – Okonkwo vs. INEC (2004) 1 NWLR (Pt. 854) 242 at 294 – 295.
The appellant, said the respondents did not prove compliance with Sections 32, 33 and 35 of the Electoral Act to show that he was validly nominated by the 4th respondent. Counsel to the respondents further submitted that the worrisome aspect of the appellant’s petition is the apparent contradiction both in the petition and his evidence at the trial. That, in one breath, he claimed that he was validly nominated but unlawfully excluded from the election and at another, he claims that he participated in the election as a candidate and scored over seven thousand votes.
Respondents submitted that at paragraph 4 (11) of the petition, the petitioner/appellant averred thus:
“The petitioner states that at the end of the said election, the second respondent who was the returning officer for the constituency announced the result as follows:
(a) Elem Nwaigboji Francis (ANPP) – 1263 votes
(b) Dr. Nte Mbam (APGA) – 78 votes
(c) Hon. Innocent Ugochima (PDP) – 126,598 votes.”
The petitioner/appellant said the respondents did not challenge the above figures. And that, unfortunately, in his evidence as PW1 at page 151 lines 25 to 28 of the record, he said:
“On the day of election, I was in my ward. Even some of the pressmen here in court interviewed me. I was there till the end of the election. I know I scored over seven thousand votes, but I can’t remember the exact votes.”
The above two situations, said the respondents are impossible and cannot be accepted. The appellant said the respondents also maintained that the votes in the 1st respondent’s name is his. Yet, according to the respondents, the margin between “over seven thousand votes” and 126,598 votes is too wide for any comparison.
Counsel to the respondents submitted further that the appellant in paragraphs 15 and 16 of the witness statement on oath at page 16 of the record states that:
“15. That I heard of subterranean moves being made to replace my name with that of Innocent Utulor Ugochima and protested same.
16. That the attempt to substitute was outside the time for so doing and was not done by the proper person.”
That, however, in his oral evidence, the appellant stated at page 152 lines 5 – 7 of the record thus:
“When I noticed moves to remove me as a candidate, I petitioned the National Chairman of PDP, and also Chairman of INEC quoting relevant sections of the Electoral Act. I did not get a reply.”
On these, counsel to the respondents submitted that it is obvious that prior to 21st April, 2007 the appellant knew that he has been substituted. That, a vital issue for consideration therefore is whether the alleged breach of Section 34 of the Electoral Act, 2006 is justifiable before an election Tribunal or the High Court i.e. State and Federal High Courts.
Counsel for the respondents then relied on the cases of Zaranda vs. Tilde (2008) 10 NWLR (Pt. 1094) 184, Obi vs. INEC (2007) 11 NWLR (Pt. 1046), 565, at 635, Buhari vs. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 448 – 449 Amaechi vs. INEC (2007) 18 NWLR (Pt.1065) 170 at 196, for the view that an election petition tribunal is not an all purpose court that can entertain all sorts of claims and reliefs and that pre-election matters can only be heard at regular court while post-election matters are to be heard by Election Tribunal established by Section 285 of the 1999 Constitution.
I must first observe that the vision of justice would have been blurred in deciding appellant’s Issue No. 2 and perhaps this entire appeal by the not too careful use of “words” and “terms” that are capable of different meanings by parties and counsel alike in this case.
For example, the words ‘submission of a candidate’s name’ or ‘nomination’ of a candidate’ for most of the times even in election matters tend to retain only their grammatical meanings. Thus, ‘nomination’, is said to be the act of suggesting or proposing a person by name to an election body as a candidate for an elective office. See e.g., Ararume vs. INEC (2007) 9 NWLR (Pt. 1038) 127 at 162 – 163.
The word ‘substitution’, on the other hand when used in election petitions could have both an ordinary or grammatical meaning as well as a special meaning or legal connotation for example in the con of the provision of Section 34 of the Electoral Act, 2006. To all intent and purposes however the words “valid nomination” can only be construed in its legal connotation.
In the instant appeal, the case presented by parties to the lower Tribunal was that the appellant’s name was the first in time to be submitted to INEC or that the appellant was the first nominee of the PDP. That when the appellant did not meet the pre-conditions set by his party the 4th respondent PDP in that the cheque issued by the appellant to the 4th respondent bounced, a fresh primary for the said constituency was organized where the 1st respondent was elected by consensus and consequently the name of the 1st respondent was submitted to the 3rd respondent as the candidate of the 4th respondent in the April 21st National Assembly Election. By my understanding of these facts, from the state of pleadings and evidence, the name of the 1st respondent was submitted in place or ‘substituted’ for that of the appellant. In this sense, ‘substitution’ was done only in a grammatical sense as the submission of one name for the other and not in the strictly legal sense contemplated by the provision of Section 34 of the Electoral Act.
The present appeal as would be seen anon is an example of the two senses in which the word ‘substitution’ could be used in election petition cases. In the first sense, that is the grammatical sense of the word ‘substitution’ there is no factual presumption of valid nomination whereas in the second sense of the use of the word ‘substitution’ there is a presumption of valid nomination because the ‘substitution’ envisaged under the provision of Section 34 of the Electoral Act presumes the fact of valid nomination. The above to my mind was the situation of the stage in which the petitioner/appellant presented his case to the lower tribunal. In these circumstance, the appellant was duty bound to first prove that he had been validly nominated before any idea of ‘substitution’ in the con of the provision of Section 34 of the Electoral Act could come into play.
Therefore, and indeed as suggested more particularly by Dr. J.O. Ibik, SAN, for the 1st respondent, from a holistic appraisal of the issues joined in the pleadings, it cannot be gainsaid that the onus lay on the appellant to prove that he was a validly nominated candidate sponsored by the PDP for the said election. To establish the legal status of a validly nominated candidate, it is incumbent on the appellant to prove compliance with the provisions of Section 32, 33 and 35 of the Electoral Act, 2006. The contention by the learned senior counsel for the appellant that the appellant’s name was first submitted having won in the primaries that the 1st respondent admitted under cross-examination that there was no ‘substitution’ or even that the 4th respondent did not specifically as a party offer contradictory oral evidence as against the appellant’s case are indeed with all due respect an oversimplification which does not vest the appellant with the statutory status of a validly nominated candidate.
In Ugwu vs. Ararume (2007) 9 NWLR (Pt. 1038) 127, the Supreme Court made it abundantly clear that it is the fulfillment of the statutory preconditions enshrined in such pertinent Sections of the Electoral Act, 2006 as SS. 32, 33 and 35 that puts INEC under the legal duty to publish the name of the sponsored candidate as a candidate standing validly nominated for the election. This requirement enjoins the petitioner to plead and tender legally admissible evidence showing that he was duly nominated and sponsored by a registered political party, that his name was submitted in the prescribed form to INEC accompanied by an affidavit duly sworn by the nominee deposing to his qualifications as required by the 1999 Constitution and the Electoral Act, 2006.
Furthermore, the nominee must also submit through his political party requisite document of nomination in favour by registered voters as required in S. 33 of the Electoral Act, 2006. It is upon the fulfillment of the said pre-conditions that INEC is statutorily enjoined to publish the name and the particulars of the nominee as prescribed in SS. 32(3) and 35 of the Electoral Act 2006 as the candidate standing duly nominated and sponsored to contest the election post.
In the instant case, the lower tribunal was right when it held on the authority of Egolum vs. Obasanjo (1999) 7 NWLR (Pt. 611) 355 that the onus was on the appellant to prove that he was a candidate at the election. This is because, the appellant not having proved that he was a validly nominated candidate at the 21st April, 2007 election, cannot be heard to complain either about ‘substitution’ under S. 34 of the Electoral Act or about unlawful exclusion. Indeed, to sustain an argument on unlawful exclusion, the claimant must first establish valid nomination by a recognized political party and publication by INEC of his name as the candidate for the election. It is only after the claimant has established the investiture of legal right of a duly nominated and officially published candidate for an election that the burden of proving lawful exclusion can conceivably arise in relation to the returned candidate. Also, the proof of the conditions of valid nomination are generally to be accomplished through the tendering of public documents and not merely oral evidence, the veritable proof of which are the production of either the original or certified true copies thereof. In the instant case, the totality of the documentary evidence tendered by the appellants are simply insufficient to support his case of valid nomination. Issue No. 2, is resolved against the Appellant.
On Issue No. 3, learned senior counsel for the appellant submitted that the Election Tribunal erred in law when it placed reliance on the pleading rather than evidence and when it refused to rely on the admission of the 1st respondent in giving judgment to the petitioner/appellant. Counsel submitted that the petitioner and the respondents filed pleadings but only the petitioner and the 1st respondent called witnesses and adduced evidence in support of their respective pleadings. Appellant’s counsel relied on the case of Lawal vs. Yama (2004) All FWLR (pt. 229) 874 at 896, Imana vs. Robinson (1979) 3 – 4 SC 1 and Odunsi vs. Bangbald (1995) 1 NWLR (Pt. 374) 641 and submitted that the 2nd, 3rd and 4th respondents who are the necessary and main parties in the petition did not lead evidence in support of their pleadings thereby leaving the Tribunal with no alternative but to resolve the cause of action against them and in favour of the petitioner. Also, that where a party like the 2nd, 3rd and 4th respondents fails to adduce evidence in support of their pleading, the pleading is deemed abandoned. Learned senior counsel further referred to the cases of Jubrin vs. NEPA (2003) FWLR (Pt 178) 1092 at 1106, Onno vs. Fubara (2003) FWLR (Pt. 169) 1285 at 1314, 989) 2 NWLR (Pt (Pt 178) 1092 at 1, Asarifa (1986) 3 NWLR (Pt. 30) 575, Nwonye vs. Anyichie (1989) 2 NWLR (Pt. 10) 110 and submitted that it is the law that a fact not denied is deemed to be admitted. Therefore, the 2nd, 3rd and 4th respondents having failed to controvert the case or evidence of the petitioner have effectively admitted them.
The case of the petitioner against the 2nd-3rd, and 4th respondents, said appellant’s counsel remain factually and legally unchallenged by them meaning that to the 4th respondent, the petitioner was its candidate at the election and to the 2nd and 4th respondent, the 1st respondent was unlawfully returned as the petitioner was unlawfully excluded.
Respondents submitted in reaction to Issue No. 3 that before the issue can be resolved in favour of the appellant, it must first be shown that he was a candidate of the 4th respondent. On this, respondent counsel referred to the provision of Section 137 of the Evidence Act to the effect that the burden of first proving the existence of a fact lies on the party who would lose if no evidence were adduced on either side.
On the submission of the appellant that the 1st respondent is a nominal party while the 2nd, 3rd and 4th respondents are the much and necessary parties and that the failure of the 2nd, 3rd and 4th respondent to call witnesses amounts to an admission. Respondents replied that DW1 is the chairman of the 4th respondent in Ebonyi State. That, he (DW1) testified for the 1st respondent and for his party the 4th respondent. And, that Exhibits 13, 15, 16, 17 and 18 were admitted in evidence through him. Counsel submitted that the cases of Lawal vs. Yama (supra) Imana vs. Robinson (supra) Oriunsi vs. Banobald (supra) Jubrin vs. NEPA (supra) and Ogolo vs. Fubara (supra) are not applicable where as in this case the plaintiff (appellant) fails to establish even a prima facie case.
Respondents’ counsel referred to the cases of WAEC vs. Oshionebo (2006) 12 NWLR (Pt. 994) 254 at Pg. 278 – 279 and AIC Ltd vs. NNPC (2005) 1 NWLR (Pt. 937) 563 at 597 and submitted that a defendant is not bound by law to call a witness/witnesses to establish his defence where a prima facie case has not been made out by the plaintiff. And, that the onus is on the plaintiff to prove his case. He must do so on the strength of his own case and not on the weakness of the defendant’s case.
Finally, respondents counsel submitted that the appellant having failed to prove that he was a validly nominated candidate of the 4th respondent, it will be preposterous to hold that he was unlawfully excluded.
Strictly speaking, the answer to appellant’s Issue No. 3 has been provided in my treatment of Issue No.2. By virtue of Section 137 of the Evidence Act, the burden of first proving the existence of a fact lies on that person who would lose it no evidence were adduced on either side. In the instant case, the appellant had the burden of proving valid nomination. It is after when that burden has been discharged that the Respondent(s) carries any burden in the case.
The respondents were right to have pointed out that the cases of Lawal vs. Yama (supra) Imana vs. Robinson (supra) and others referred to by the learned senior counsel for the appellant are not applicable to this case. In the case of Aikhionbare vs. Omoregie (1976) 12 SC 11, the Supreme Court held that a plaintiff is not automatically entitled to judgment simply because defendant or as in this case some defendants abandoned their pleadings by failure to lead evidence. See also, Arewa iles Plc, vs. Finetex Ltd. (2003) FWLR (Pt. 162) 1985.
Truly, it is trite law that the onus is on the appellant to prove his petition and must do so on the strength of his own case and not on the weaknesses of the defence. Okonkwo vs. Okonkwo (1998) 7 SCNJ 264.
In the instant case, having failed to prove valid nomination, the defence did not carry any further onus in relation to the case put up by the appellant and also the appellant’s claim for unlawful exclusion must fail. Issue No. 3 is resolved against the Appellant.
Having resolved the three issues in this appeal against the appellant, the appeal lacks merit and it is accordingly dismissed. N30.000.00 costs is awarded against the appellant in favour of the respondents.
CONTRIBUTION
ABUBAKAR JEGA ABDUL-KADIR J.C.A.: I read in advance the Judgment of my learned brother, Owoade, JCA. I agree with him that the appeal lacks merit. I dismiss the appeal and abide by the Order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. His Lordship has exhaustively dealt with all the issues in contention and I agree with his reasoning and conclusion. I dismiss the appeal and abide by the order as to costs.
Appearances
L.O. Fagbemi, SAN,;
S. O. Ajayi, Esq.For Appellant
AND
Dr. J.O. Ibik, SAN;
P. U. Ogbodu, Esq.
M. Ugwuocha, Esq.,;
J. U. Ndu (Mrs.)
G. Ofodile Okafor, SAN,;
K.O.K. Agbowo, Esq.For Respondent
