HON. EZEKWELU TONY U.C. V. BARRISTER EBELE OBI & ORS
(2012)LCN/5628(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of October, 2012
CA/E/EPT/22/2012
RATIO
PROCEDURE: EFFECT OF A SUSTAINED PRELIMINARY OBJECTION
This is in line with the time honoured position of the law to the effect that a preliminary objection to an appeal if sustained necessarily precludes the court from entertaining the appeal on the merit. See Patrick D. Magit v. University of Agriculture, Makurdi & Ors. (2005) 19 NWLR (Pt. 959) 211; Tiza & Anor. v. Begha (2005) 15 NWLR (Pt.949) 616. Chief Nsirim v. Nsirim (1990) 5 SCNJ, 174.
Okolo v. Union Bank of Nigeria Limited (1998) 2 NWLR (Pt. 539) 618.
Arewa ile Plc. v. Abdullahi & anor. (1998) 6 NWLR (Pt. 554) 508. PER UWANI MUSA ABBA AJI, J.C.A.
PLEADINGS: WHETHER AVERMENT IN PLEADINGS CONSTITUTE EVIDENCE
It is settled law that averment in pleadings is not evidence and they cannot be so construed. They must be clearly proved by evidence except where they are admitted by the other party. See Ughamadu v. Ndibe (2010) 46 WRN 55; Aregbesola v. Onyinola (2011) 1 WRN 140, Akanmu v. Adigim (1993) 7 NWLR (Pt. 304) 218, Alao v. Akano (2005) 11 NWLR (Pt. 935) 180. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
A.O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
HON. EZEKWELU TONY U.C. Appellant(s)
AND
1. BARRISTER EBELE OBI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSTON (INEC).
3. THE RETURNING OFFICER IDEMILI SOUTH CONSTITUENCY. Respondent(s)
JOHN INYANG OKORO JCA (Delivering the Leading Judgment): This appeal is against the judgment delivered on 1/9/2012 by the National and States House of Assembly Election Petition Tribunal (coram: Hon. Justices A.M. Liman (Chairman), O’Conell Ogbonna and Salihu O. Angelina) (hereinafter simply referred to as the Tribunal.) The tribunal in its judgment upheld the election of the 1st Respondent as the winner of the Anambra State House of Assembly re-run election for the Idemili South Constituency held on 15/2/2012.
The facts of the matter briefly stated are that a re-run election was ordered by this Court in respect of the Idemili South Constituency of Anambra State House of Assembly. The re-run election was held on 15/2/2012. The 1st Respondent was declared by the 2nd and 3rd Respondents as the winner of the election and as the duly elected member representing the Idemili South Constituency in the Anambra State House of Assembly. The Appellant being aggrieved by the declaration of the 1st Respondent as the winner of the election presented a petition dated 7/3/2012 before the Tribunal on the same date, challenging the said declaration. The grounds of the petition as set out in paragraph 5 thereof read thus:-
“(A) The election was invalid by reason of substantial non-compliance with the provision of the Electoral Act 2010 as Amended which non-compliance had in turn substantially affected the result of the election to the detriment of the petitioner, had the principles of the Electoral Act been substantially complied with, many of the votes credited to the respondent would not have been credited to him and the petitioner would have been declared winner of the election.
(B) The respondent was also not elected with majority of the lawful votes cast in the election, the petitioner rather was.”
The reliefs which the Petitioner prayed of the Tribunal as set out in paragraph 10 of the Petition reads thus:-
‘(i) A declaration of court that the 1st respondent did not win the election (rerun) held on 15/2/2012 to the Idemili South Constituency with a majority of lawful votes cast in the election.
(ii) A declaration of the tribunal that the petitioner on the other hand had won the election with a majority of the lawful votes cast in the election which is 3130 votes to the 2883 votes of the 1st respondent i.e. after the votes that were not earned legitimately by the parties are discountenanced/subtracted from the votes hitherto credited to them by INEC.
(iii) A declaration of the tribunal that the certificate of return issued to the 1st respondent in the circumstances is without basis and of no effect and that the same should be issued to the petitioner as one who had won the election on the strength of the lawful votes cast in the election.
(iv) An order of the Honourable Tribunal compelling the INEC (2nd respondent) to issue a certificate of return to the petitioner forthwith as the one who had won the election to the Idemili South State Constituency Election (re-run) held on 15/2/2012″.
At the hearing of the Petition before the Tribunal, the Petitioner alone testified on his own behalf in proof of his case as set up in the Petition. Exhibits that were duly marked A – J were tendered by consent of counsel at the hearing. The 1st Respondent testified on his own behalf and called 9 other witnesses. He also tendered exhibits marked as R13 – R36. The 2nd and 3rd Respondents in their joint defence called 10 witnesses and tendered exhibits marked 37A – R54. The Tribunal after a review of the respective cases of the parties in the Petition, and evaluation of evidence before it, held that the Petitioner failed to prove that the election was not conducted substantially in accordance with the provisions of the Electoral Act (as amended) or that any non-compliance substantially affected the result of the election. Stating further that there was no basis to invalidate the re-run election held on 15/2/2012, into the Idemili South State Constituency of Anambra State, the Tribunal held the Petition to fail and accordingly dismissed it for lack of merit. Consequently, the Tribunal affirmed the election, declaration and return of the 1st Respondent.
The Petitioner being aggrieved with the decision of the Tribunal lodged a Notice of Appeal dated 21/9/2012 against the judgment on the same date. The Notice of Appeal contains ten grounds of appeal. The relief the Appellant seeks from this Court as set out in the Notice of Appeal is “To allow the Appeal of the Appellant, set aside the decision of the tribunal below dated 1/9/2012 and declare the appellant as having won majority of lawful votes cast in the re-run election of 15/2/2012 to the Idemili South Constituency Anambra State and therefore entitled to be issued with the certificate of return in the election forthwith.
In accordance with the Rules of this court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of argument is dated 11/10/2012 and filed on the same date. The Appellant filed a Reply brief to the 1st Respondent’s Brief of Argument. It is dated 19/10/2012 and filed on the same date. Both briefs were settled by Chief Chuma Oguejiofor. The 1st Respondent’s Brief of Argument dated 15/10/2012 and filed on 16/10/2012 was settled by Emeka Agbapuonwu Esq. The 2nd and 3rd Respondent’s Brief of Argument dated 15/10/2012 and filed on the same date was settled by S.O. Ibrahim Esq. (Chief Legal Officer, INEC): M.E. Ugwuocha Esq. (Senior Legal Officer, INEC); and O. Ikoroha (Mrs) (Senior Legal Officer, INEC). The appeal was entertained on 22/10/2012 with Emeka Agbapuonwu Esq. learned counsel for the 1st Respondent first arguing the preliminary objection as raised in the Notice of Preliminary Objection contained in the Brief of Argument of the 1st Respondent. Chief Chuma Oguejiofor, learned lead counsel for the Appellant having responded to the preliminary objection thereafter adopted and relied on the Briefs of Argument of the Appellant as hereinbefore identified in urging the court to allow the appeal. The 1st, 2nd and 3rd Respondents respectively, also adopted and relied on their respective Briefs of Argument as hereinbefore identified in urging that the appeal be dismissed and the judgment of the Tribunal upheld by this Court.
In his Brief of Argument, the Appellant formulated a lone issue for the determination of the appeal from the ten grounds of appeal. The issue reads thus:-
‘Whether the Appellant did not prove his case upon a preponderance of Evidence and Even beyond That and Therefore Entitled to All Reliefs prayed in His Petition.”
Aside from the Preliminary objection raised in the appeal, the 1st Respondent in his Brief of Argument likewise formulated a lone issue for the determination of the appeal from the ten grounds of appeal. It states as follows:-
“Whether the appellant proved his case either on the preponderance of evidence or beyond reasonable doubt.”
The 2nd and 3rd Respondents equally formulated a lone Issue for determination in the appeal in their Brief of Argument. The Issue reads thus:-
“Whether from the state of pleadings and evidence adduced by parties, the trial Tribunal was not right in holding that the Appellant failed to prove the grounds of the Petition and thereby dismissed the Appellant’s petition.”
The Court will first dwell on the preliminary objection of the 1st Respondent to the appeal. This is in line with the time honoured position of the law to the effect that a preliminary objection to an appeal if sustained necessarily precludes the court from entertaining the appeal on the merit. See Patrick D. Magit v. University of Agriculture, Makurdi & Ors. (2005) 19 NWLR (Pt. 959) 211; Tiza & Anor. v. Begha (2005) 15 NWLR (Pt.949) 616. Chief Nsirim v. Nsirim (1990) 5 SCNJ, 174.
Okolo v. Union Bank of Nigeria Limited (1998) 2 NWLR (Pt. 539) 618.
Arewa ile Plc. v. Abdullahi & anor. (1998) 6 NWLR (Pt. 554) 508. The preliminary objection to the appeal as raised in the Notice of Preliminary Objection contained in the Brief of Argument of the 1st Respondent reads:-
“The 1st respondent hereby gives notice of preliminary objection to the hearing of this appeal for being incompetent and therefore liable to be dismissed in limine. This preliminary objection is predated (sic) on the ground that:
The brief of argument of the appellant is incompetent having not been signed by a counsel.”
The 1st Respondent in urging the Court to uphold the preliminary objection adopted and relied on the arguments at paragraphs 4.00 – 4.09 of his Brief of Argument. The argument of the 1st Respondent in support of the preliminary objection in the main is that the identity of the person who signed the Appellant’s Brief of Argument on behalf of Chuma Oguejiofor was not disclosed. The 1st Respondent invited the Court to look at the signature of Chuma Oguejiofor as contained in the Notice of Appeal, Petition, final written address of the Petitioner and other documents filed by the Appellant, as contained in the record of appeal and make a finding that the signature as shown in the Appellant’s Brief of Argument is not that of Mr. Chuma Oguejiofor. The 1st Respondent submitted that as the identity of the person who signed the Appellant’s Brief of Argument has not been disclosed in that the said signature is different from the signature of Chuma Oguejiofor, the said Appellant’s Brief of Argument, is worthless and fatal to the Appellant’s appeal as the position of the law is that nobody signed the process. The Court was urged to hold the Brief of Argument in question incompetent and to strike out the appeal. He cited the following cases:-
Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Ogundele v. Agiri (2009) 19 NWLR (Pt. 1193) 219 and P.M.B. Limited v. NDIC (2011) 12 NWLR (Pt. 1261) 253.
Responding to the preliminary objection, learned lead counsel to the Appellant submitted to the effect that the preliminary objection was incompetent as the requirement of Order 10 rule 1 of the 2011 Rules of this Court, in relation to raising of preliminary objection, have not been complied with. In this regard, learned counsel stated that the 1st Respondent’s Brief or Argument wherein the Notice of Preliminary Objection was given was served on the Appellant on 19/10/2012 while the appeal is being entertained on 22/10/2012. That the Appellant has not been given three clear days Notice before the preliminary objection was argued.
Learned counsel to the 1st Respondent submitted by way of a reply to the effect that the objection of the Appellant to the hearing of the preliminary objection was not competent inasmuch as it was not taken before the preliminary objection was argued. That by allowing the preliminary objection to be argued, the Appellant has waived whatever objection he had. The 1st Respondent also urged the Court to adjourn the hearing of the preliminary objection upon payment of costs pursuant to the provision of Order 10 Rules 3 of the Rules of this Court.
On 23/10/2012, the Registry of this Court was directed to communicate to the parties that judgment in the appeal will be delivered on 24/10/2012. It was after the Court on 22/10/2012, had entertained the preliminary objection, and reserved judgment in the appeal to a date to be communicated to the parties, that the 1st Respondent sent to the Registry of the Court, a letter to which an affidavit of service relating to the service of the 1st Respondent’s Brief of Argument on the Appellant was attached which shows that the 1st Respondent’s brief was served on the Appellant on 17/10/12 and not 19/10/12 as stated by the Appellant’s counsel. The situation now created by the affidavit of service placed before the court by the 1st Respondent is that there is now need to first resolve the issue of the actual date of service of the 1st Respondent’s Brief of Argument on the Appellant. This cannot be done without having to re-hear the preliminary objection and the appeal. The instant appeal is an election petition appeal which by relevant constitutional provision must be determined within 60 days from the date of the judgment of the Tribunal, i.e. the appeal is one that is time barred. Against the backdrop of this, the luxury of re-hearing the preliminary objection and appeal is not one the court can or should take in the interest of justice as it would most likely lead to the court not determining the appeal within the constitutionally stipulated period for that purpose. In the same vein it definitely would be antithetical to the administration of justice for the Court to pronounce on the merit or otherwise of the preliminary objection without first resolving the issue of the date on which the 1st Respondent’s Brief of Argument was served on the Appellant. In the circumstances, the Court considers it in the better interest of justice to simply, discountenance the preliminary objection of the 1st Respondent on the ground that it cannot properly pronounce on the same having regard to its inability due to time constraint to resolve the issue of the date of service of the 1st Respondent’s Brief of Argument on the Appellant. I will therefore without much ado proceed to consider the appeal on the merit.
The issues for determination of the appeal was as variously formulated by the parties in my considered view all simply raise the question as to whether or not the decision of the Tribunal that the Appellant did not prove his case as set up in the Petition, is right in the face of the evidence(oral and documentary) before it. The appeal will therefore be determined against the backdrop of this.
The Appellant only testified in proof of his case as set out in the Petition. In this regard, the Appellant at page 528 of the record adopted his deposition of 1/6/2012 and the deposition he attached to his reply to the 2nd and 3rd Respondent’s Reply. In the course of his evidence the Appellant also stated that he pleaded the documents listed in the list of documents filed on 1/6/2012. The following documents were admitted in evidence in the course of the testimony in chief of the Appellant by consent:-
1. Form EC8A 1 Alor 1 Unit 006 with Register. A
2. Form EC8A 1 Alor 2 with Register Unit 6.B
3. From EC8A 1 Alor 1 unit with Register Unit 009.C
4. Form EC8A 1 Alor 1 Unit 010 with Register. D
5. Form EC8A 1 Alor 2 Unit 003 with Register. E
6. Form EC8A 1 Alor Unit 601 with Register. F
The following documents were admitted in evidence in the course of the testimony in chief of the Appellant after the objection to their admissibility was overruled:-
Form EC8A 1 Awka Etiti 1 Unit 011 Exhibit G.
From EC8A 1 Awka Etiti 1 Unit 002, 003, 006, 008, 009, 004, 007, 010, 012, 013, 014 and 015, Exhibit H.
Form EC8A Alor 1 Unit 008 with Register. Exhibit 1
Form EC8E (1) for Idemili South State Constituency Exhibit J
Form EC8A 1 Awka Etiti 1 Unit 014 with Register. Exhibit K.
Idemili South (sic) Ad-hoc Staff List. Exhibit L.
Manual for Electoral Officials 2011. Exhibit M.
Form EC8A 1 Nnobi 2 Unit 0013 with Registry (sic). Exhibit N.
APGA Party Agents Idemili L.G.A. Exhibit O.
Form EC8A 1 Awka -Etiti with Register Unit 001. Exhibit P.
The Tribunal stated the position of the law concerning the Petition of the Appellant to be that the burden was on him to prove the allegations of non-compliance he made in the Petition. That specifically, the Appellant was to prove that there was noncompliance with the Electoral Act and that the non-compliance substantially affected the result of the election. That it was only after the Appellant had discharged that burden that the onus will shift to the Respondents to establish that the result of the election was not so affected. The Appellant has not alleged that the Tribunal is wrong concerning the positions of law as stated by it.
As earlier stated, it was the Appellant alone that offered evidence in the proof of his case. In his evidence in chief as well as under cross-examination the Appellant left no one in doubt that he did not witness anything concerning the election he is challenging at the polls. He was consistent that he was at home throughout the time of polling. The Appellant has sought to establish his entitlement to the reliefs he claims in the Petition on the strength of the documentary evidence before the Tribunal. In this regard, the Appellant has accused the Tribunal of not according the documentary evidence before it, the weight or credence they deserved. That the facts that constituted the non-compliance with the provisions of the Electoral Act he has challenged are manifest on the Forms EC8A (1) that were properly tendered and duly admitted in evidence.
The Court is of the considered view that it has been more than sufficiently demonstrated in the Briefs of Argument of the Respondents, particularly the Brief of Argument of the 2nd and 3rd Respondents that it was not enough for the Appellant to rely alone or without more on the lapses in the Forms EC8A (1) before the Tribunal in the proof of his case. This is particularly so as the lapses the Appellant is capitalizing upon were duly explained in the evidence of witnesses called by the 2nd and 3rd Respondent.
The Electoral Act, 2010 (as amended) in Section 139(1) states to the effect that the Tribunal shall not invalidate an election for the reason of non-compliance with the provisions of the Act if it appears to the Tribunal that the election was conducted substantially in accordance with the provisions of the Act and that the non-compliance did not substantially affect the result of the election. Surely, the result of the election as reflected in the Forms relied upon by the Appellant were dictated or captured from the happenings at the polling units to which the results relate. It is therefore incomprehensible how the Appellant who from his evidence never witnessed anything that happened at any of the polling units can claim that he has successfully shown that the election he is challenging was not conducted substantially in accordance with the Electoral Act, simply on the basis of explained lapses in Forms EC8A(1) before the Tribunal. This is particularly so when the Appellant in the course of his evidence totally failed to even relate any of the documentary evidence before the Tribunal to any of the situation he alleged in the Petition. It has to be noted that the (PW1, the Petitioner himself) is the only witness that testified in proof of the alleged non compliance. Learned counsel for the Appellant has stated on page 5 paragraph 3.02 of their brief as follows:
“The appellant had narrowed his complaint down to the following polling units i.e. to say, (1) Nkwoide public square code 009 located at Alor ward 1, (2) Nkwoide public square V (code 010) also located in Alor ward 1, (3) Alor Central School III in Alor ward II with code No. 006, (a) Nkwoide polling unit code 003, (5) ST Simon School I in Nnobi ward II (code 013), (6) Community Central School II Nnobi (code 002) in Nnobi ward I, (7) Awka Etiti ward – Umuogboji Hall (code 014), (8) Ejighinandu Hall I (code 011) Awka Etiti ward I, (9) Iruowelle Hall 1, Awka Etiti Ward I and (10) Central School Awka Etiti (code 007)”.
The question is, was the appellant in all these polling units on the day of the election? Certainly not. These facts remain mere averments in the petition unless and until evidence is led to prove them. The appellant herein woefully failed to lead evidence to prove the averments in his petition. It is settled law that averment in pleadings is not evidence and they cannot be so construed. They must be clearly proved by evidence except where they are admitted by the other party. See Ughamadu v. Ndibe (2010) 46 WRN 55; Aregbesola v. Onyinola (2011) 1 WRN 140, Akanmu v. Adigim (1993) 7 NWLR (Pt. 304) 218, Alao v. Akano (2005) 11 NWLR (Pt. 935) 180.
Flowing from the foregoing, this Court is of the settled view that the Tribunal was eminently right in its conclusion that the Appellant failed to prove that the election he challenged was not conducted substantially in accordance with the Electoral Act 2010 (as amended) or that any non-compliance substantially affected the result of the said election. Accordingly, the appeal against the judgment of the Tribunal lacks merit and is hereby dismissed.
The judgment of the Tribunal affirming the election, declaration and return of the 1st Respondent is upheld. Costs of N50, 000.00 is hereby awarded in favour of the 1st Respondent only.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
Chief Chuma Oguejiofor, with I. Onuamah Esq.For Appellant
AND
Emeka Agbapuonwu Esq., with Emeka Ibe Esq., and Bright Owakwe (Miss) for the 1st Respondent
S.O. Ibratrim Esq., Chief Legal Officer (INEC) with M.E. Ugwuocha Esq., Senior Legal Officer (INEC) for the 2nd and
3rd Respondents.For Respondent
