HON. JOHN OBAFEMI & ANOR V. PEOPLES DEMOCRATIC PARTY (PDP) & ORS
(2012)LCN/5176(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of February, 2012
CA/I/EPT/LH/22/2011(REASONS)
RATIO
ELECTORAL LAW: THE POSITION OF THE LAW ON DEALING WITH THE PETITION ON GROUND OF QUALIFICATION OF A CANDIDATE
For the purpose of dealing with the petition on ground of qualification of a candidate, the scores of all the candidates that participated at the election need not be pleaded by the Petitioner as same are not material to the determination of such dispute see Wamini – Emi v. Igali (2008) 11 NWLR (Pt.1097) 123; or where the votes cast are not attacked in the petition, the scores of all the candidates need not be pleaded – Ukaegbu v. Uzor (2004) ALL FWLR (pt.205) 335, Ogbeide v. Osula (2004) FWLR (pt.191) 1609 or where the scores of the other candidate(s) not pleaded in the petition are inconsequential to the determination of the Petition as in the case of Olaosun v. Ogunsemi (2004) ALL F.W.L.R. (Pt.214) 49, where the third candidate out of the three candidates that contested the election scored 10 votes which were not pleaded by the Petitioner, this Court held that the votes crucial to the petition were the pleaded 12,108 votes of the petitioner and the 12,380 votes of the 1st Respondent, therefore the failure to plead the 10 votes of the other candidate was not fatal to the Petition. PER. JOSEPH SHAGBAOR IKYEGH, J.C.A.
LAW OF EVIDENCE: ON WHOM LIES THE ONUS TO ESTABLISH CREDIBLE EVIDENCE IN A CLAIM FOR DECLARATION.
The lower Tribunal could not have been correct to state that the Appellants admitted the allegation of manipulation of results of Ward 8 of the Constituency on the Pleadings. Besides, paragraph G of the petition (supra) requested for declaratory relief which cannot be granted on admissions in the pleadings, or in the absence of evidence from the respondents, but on credible evidence from the claimant see the yet unreported Supreme Court case of Congress for Progressive Change (CPC) v. INEC and Others. APPEAL NO.SC.426/2011 delivered on 28.12.2011, per the lead judgment of the great jurist Adekeye, J.S.C., inter-alia thus: “It is trite that in a claim for declaration, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the court that upon the pleadings and cogent and credible evidence adduced by him that he is entitled to the declaration of right in his favour. Nwokidu v. Okanu (2010) 3 NWLR (Pt.1181) pg.362. Ekundayo v. Baruwa (1965) 2 All NLR pg. 211. Dantata v. Mohammed (2000) 7 NWLR (pt.664) pg.176.” PER. JOSEPH SHAGBAOR IKYEGH, J.C.A.
THE POSITION OF THE LAW ON THE ALLEGATION OF DISENFRANCHISEMENT
Also, none of the alleged disenfranchised voters testified in respect of the allegation of disenfranchisement – see Audu v. INEC & Others (2010) 13 NWLR (Pt.1212) 456 at 522-523, where this Court held inter alia in the lead judgment of Bada, J.C.A., that: “…The petitioner alleging non-voting must call a voter from each polling booth in the affected constituency as witnesses and would tender their voters cards and testify that they did not vote on the day of election. …Evidence of non-voting in a particular polling booth is provable by production of voter’s register, production of voter’s cards and the oral evidence of registered voters who were available and turned up to vote at their respective polling booths on the day of the election but could not vote for a variety of reasons. See – Ayogu v. Nnamani (2006) 8 NWLR (Pt.981) page 160 at 166. The non-tendering of voter’s cards of the persons alleged to have been disenfranchised, and no evidence to show that the names of those disenfranchised voters were not actually ticked as having voted in the voters’ register is fatal to the case of the appellant. See section 50 (1) and (2) of the Electoral Act, 2006: Awuse v. Odili & Others (2005) 16 NWLR (Pt.952) page 416 at 417.” See also Yaro v. Wada (2009) ALL FWLR (Pt.472) 1084, Chime v. Ezea (2009) 2 NWLR (Pt.1125) 253 at 357, Rotimi v. Faforji (1999) 6 NWLR (Pt.606) 305, Eriobuna v. Ezeife (1992) 4 NWLR (Pt.235) 417 at 430. PER. JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. HON. JOHN OBAFEMI
2. PEOPLES PARTY OF NIGERIA (PPN) Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. HON. OLUSOLA SAMUEL OSHIMADE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment): The appeal is against the decision of the National and state Legislative Houses Election Petition Tribunal, Abeokuta, Ogun State (Lower Tribunal). It is in respect of the nullification of the election of the 1st Appellant of the Peoples Party of Nigeria (PPN), the 2nd Appellant, as member of the House of Assembly for Remo North constituency of Ogun State. The lower Tribunal also ordered the 3rd Respondent to issue certificate of return to the 2nd Respondent of the Peoples Democratic Party (P.D.P.), 1st Respondent, as the duly elected candidate for the constituency.
In substance, the 1st Appellant was the candidate of the 2nd Appellant at the general elections held on 26.4.2011, by the 3rd Respondent. The 2nd Respondent who was the 1st Respondent’s candidate also contested the election. One Hon. Olusola Pelumi Adeboye of the Action Congress of Nigeria (A.C.N.) Political Party was among the contestants. Some other candidates from five other political parties too contested the election. The 3rd Respondent announced the result of the election on 27.4.2011, recording 4,442 votes for the 1st Appellant as winner of the election followed by the 2nd Respondent with 4073 votes; one Hon. Olusola Pelumi Adeboye took the third position.
Upset by the result of the election, the 1st-2nd Respondents filed a joint petition at the lower Tribunal on the grounds of late substitution of the 1st appellant’s candidature by the 2nd Appellant contrary to the relevant provisions of the Electoral Act 2010, as amended, and the failure of 1st Appellant to score majority of lawful votes at the election.
The lower Tribunal heard evidence in the petition. It took final addresses of learned counsel for the respective parties before it decided that the petition was meritorious and granted the 1st-2nd Respondents’ prayers nullifying the election and declaring the 2nd Respondent the duly elected candidate for the constituency on the sole premise that he scored the majority of lawful votes at the election.
The Appellants appealed against the decision of the lower Tribunal in a notice of appeal with ten grounds of appeal from which four issues were drawn for determination on the appeal in the Appellants’ brief of argument settled by their learned senior counsel, Professor Osipitan, as follows:
“(1) Is this Petition competent or incompetent having regard to the mandatory requirement that the Petitioners should plead the results of all the Candidates at Election? GROUND 1.
(2) Was the Tribunal right or wrong when it held that the Appellants did not join issues with the Respondents on allegation of malpractices and non-compliance as set out in paragraph F1(I) – (V) of the Petition? GROUNDS 2 & 3.
(3) Did the Lower Tribunal rightly or wrongly cancel the entire result of Ward 8? GROUNDS 4, 8, 9 & 10.
(4) Did the 1st and 2nd Respondents discharge the burden of proving allegation of manipulation of Election results in favour of the 1st Appellant? GROUNDS 5, 6 & 7.”
Issue 1 ventilated that the 1st-2nd Respondents as Petitioners questioned the election on the issue of the majority of lawful votes in their joint petition putting the scores of all the candidates at the election on the line, and were obligated by paragraph 4(1)(c) of the First Schedule to the Electoral Act 2010, as amended, taken together with the cases of Khalil v. Yar’Adua (2003) 15 NWLR (Pt.847) 446 at 487, Ibrahim v. INEC (1999) 8 NWLR (Pt.514) 334 at 351 to plead the scores of all the eight candidates at the election and, having pleaded the scores of only three candidates, the petition was incompetent and should have been struck out by the lower Tribunal.
The Appellants’ brief cited the cases of Yoye v. Onibode (1974) 1 ALL NLR (Pt.2) 118 at 123, Omega Bank (Nig) Plc. v. O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547, Ishola v. U.B.N. Ltd. (2005) ALL FWLR (Pt.212) 1655 at 1738, George and Others v. Dominion Flour Mills Ltd. (1963) 1 ALL NLR 71, Overseas Construction Company Nig. Ltd. V. Creek Enterprises (Nig) Ltd (1985)3 NWLR (Pt. 407) 40, Hashidu v. Goje 2 EPR 790, Omoboriowo v. Ajasin 3 EPR 488 at 511, Iniama v. Akpabio 2008) 17 NWLR (Pt.1116) 225 at 309 to buttress the point that parties are bound by pleadings and counsel’s submissions cannot be substitute for pleadings, therefore the 1st – 2nd Respondents having pleaded disenfranchisement of 300 voters in paragraph F2(i)-(iii) of the petition, Exhibits P2A and P2B admitted for that purpose was wrongly used for another unpleaded purpose by the lower Tribunal as uncollated votes for Ward 4 of the constituency, which it computed and added to the 2nd Respondent’s scores when the pleadings were not amended to reflect the new case agitated in 1st-2nd Respondents’ final address at the lower Tribunal.
It was also argued that apart from the PW1 who testified for the 1st – 2nd Respondents that he voted at the election, no other witness testified in the petition for the 1st – 2nd Respondents towards proof of the allegation of disenfranchisement of voters contrary to the case of Nnaji v. Agbo (2006) 2 EPR 867 at 891 to the effect that an allegation of disenfranchisement must be proved by the disenfranchised voters giving evidence of the disenfranchisement together with the tendering of their voter’s cards in evidence showing they were not allowed to vote at the election.
It was argued further that the lower Tribunal was wrong to raise suo motu the issue of formal admission of the averment in paragraph F1 (i) – (v) of the petition without affording the appellants the opportunity to react to same before it made adverse findings on it against the appellants in violation of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) and the cases of Onah v. Okenwa (2010) 7 NWLR (Pt.1194) 512 at 537, Udogu v. Egwuatu (1994) 3 NWLR (Pt. 330 120 at 127.
The brief argued in the alternative that, the general traverse in paragraph 1 of the Appellants’ reply to the petition and the specific traverse in paragraphs 8, 9, 10 and 11 thereof joined issues with paragraph F1 (i) – (v) of the Petition placing the burden of proof of the allegations on the 1st-2nd Respondents especially as the prayer for nullification is declaratory vide Mandilas and Kalaberies Ltd v. Apena (1969) NMLR 199 at 201, Osafile v, Odi (1994) 2 NMLR (Pt.325) 125, Ugochukwu v. Cooperative Bank Ltd. (1996) 7 SCNJ 22, Coker v. Olukoga and Others (1994) 2 NWLR (Pt.329) 648 at 562, Adegboyega v. Awe (1993) 3 NWLR (Pt.280) 224 at 239, Agbaje v. Fashola (2008) 6 NWLR (Pt.1082) 90 at 133-134 and A.N.P.P. v. Argungu (2009) 17 NWLR (Pr.1171) 445 at 462, and that paragraph F1 (iv) of the Petition pleaded collation of the votes at Ward 8, therefore the lower Tribunal was wrong to cancel the result of the election in Ward 8 when the pleadings and the evidence of the PW1 did not state the Local Government Secretariat the results were eventually taken to.
The Appellants’ brief argued further on Ward 8 that inflation and manipulation of results in Ward 8 were pleaded by the 1st-2nd respondents, which are criminal allegations that required proof beyond reasonable doubt by tendering in evidence two sets of results showing the genuine result and the falsified results which was not met by the 1st – 2nd respondents who tendered in evidence only Exhibits P1H and P2A without tendering in evidence the pyramid of results for the units in Form EC 8A and the ballot papers of the election vide Akpan v. State (1990) 7 NWLR (pt. 160) 101 at 110, Shekete v. N.A.F. (2000) 16 W.R.N. 56 at 69, Adeghije v. Nwaogu (2010) 12 NWLR (pt. 1209) 419 at 480, Ojo v. Eshole (1999) 5 NWLR (pt. 603) 44 at 52, Ezeazodosiako v. Okeke (2005) 16, NWLR (pt; 952) 612 at 628, Kalu v. Uzor (2006) 8 NWLR (pt. 981) 66 at 103, Awuse v. Odili (2005) 16 NWLR (952) 416 at 488, Bello v. Aruwa (1999) 8 NWLR (pt. 615) 454, Nwobodo v. Onoh (1984) SCNLR 1, 34 or (1984) 1 SC 1 or (1984 NSCC 1 at 22 and Seikegbe v. Penawou (1999) 9 NWLR (pt. 618) 354 at 364;
It was also argued that the summary of the result in Exhibit P1H compared with Exhibit P2A, the same summary of results, did not disclose difference or manipulation of the results recorded therein for the appellants and the 1st – 2nd respondents; that the 1st – 2nd respondents did not plead and prove how the alleged non compliance had substantial effect on the result of the election as laid down by Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 191, Malachi v. Ibom (2004) 16 NWLR (pt. 100) 614; that the PW1 who was the only witness for the 1st – 2nd respondents testified that he voted at AUD Primary School Ishara ward 3 and was not in a position to have first hand knowledge of what transpired in the other polling units, save the party agents and polling agents of the units who were not called to testify in the petition, therefore the allegation of corrupt practices in respect of the said polling units was not proved by the 1st – 2nd respondent to warrant the lower Tribunal entering judgment in the petition for them vide Iniama v. Akpabio (supra) at 335, Buhari v. INEC (2008) M.J.S.C. at 326 – 327, Jolayemi v. Alaoye (2004) 12 NWLR (pt. 887) 22 Ezeazodosiako v. Okeke (supra) at 630 – 631.
It was also argued that oral evidence is inadmissible to show that the result of ward 8 was neither collated nor released until 4.5.2011 vide Alli v. Ikusebiala (1985) 5 NWLR (pt. 4) 530, Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (pt. 144) 283 and Fortune International Bank Plc. v. Pegasus Trading Company (GMBH) (2004) 4 NWLR (pt. 863) 369; that the 1st – 2nd respondents withheld the result of the election for ward 8 pleaded by them when they refused to tender same in evidence and should be held guilty of withholding evidence as held in the case of Agballah v. Chime (2009) 1 NWLR (pt. 1122) 373 at 435; and that the 1st – 2nd respondents did not prove alteration of the results in Exhibits P1H and P2A and its materiality to their case contrary to section 128 (5) and (6) of the Evidence Act and the cases of Orji v. Emolie (1991) 1 NWLR (pt. 158) 475 and Aliyu v. Sodipo (1994) 5 SCNJ 1, consequently it was urged that the appeal be allowed.
The 1st – 2nd respondents’ brief dated and filed on 6.12.11, was settled by their learned counsel, Mr. Oluyede, where it was contended that the scores of the candidates relevant to the petition were pleaded in the petition which was also based on complaints of irregularities and malpractices carried out by the appellants in connivance with the 3rd respondent’s agents not requiring the pleading of scores of all the candidates, therefore the necessary parties were joined in the petition in accordance with paragraph 51 (1) of the First Schedule to the Electoral Act, 2010, as amended, (First Schedule) and the cases of Gwandu v. Gwandu (2004) 1 LRECN 485, Eni v. Delight Igali (2008) 1 LRECN 453 at 468 read with paragraph 53 (1) of the First Schedule and that the scores of the other candidates could not have been stated as they were not shown on the pleadings and the evidence that they were validly nominated by their respective political parties pursuant to section 31 of the Electoral Act and the case of Buhari v. Yusuf (2003) 14 NWLR (pt. 841) 446 at 505.
The 1st – 2nd respondents contended in respect of the result of Ward 4 of the constituency that the 1st – 2nd respondents’ complaint thereat was twofold: the omission by the 3rd respondent’s agents to record 300 votes scored by the 1st respondent and disenfranchisement of 300 voters pleaded in paragraph F1 (i), F2 (i), (ii) and (iii) of the petition – upon which the 1st – 2nd respondents tendered the relevant INEC result forms to establish that the 2nd respondent was deprived of 600 votes in ward 4 of the constituency, more so on clear calculation of the scores on the result sheet in form EC 8C it gave the 2nd petitioner 4,073 votes and the 1st respondent 4, 373, therefore the lower Tribunal was right to re-compute the results on the basis of the evidence before it so as to do justice to the parties by correcting the “human error” committed by the 3rd respondent; and that Exhibits P2B were tendered to prove not only disenfranchisement of voters but to prove the entire petition as pleaded by the 1st-2nd respondents who relied on all the result sheets Forms EC 8A – E.
The brief of the 1st – 2nd respondents contended in respect of the result of ward 8 of the Constituency that the 1st-2nd respondents specifically pleaded manipulation of the results of ward 8 in paragraph F1 ii-v of the petition affording the appellants the avenue to specifically deny same which they did not, showing the appellants were given the opportunity to be heard on the issue and that, the lower Tribunal was right to hold that by the general denial of the appellants, there was admission of the said allegation on the pleadings without infringing the appellants’ right to fair hearing vide Audu v. INEC (No. 2) (2010) 13 NWLR (pt. 1212) 455 Skypower Airways Ltd. v. Alima (2005) 18 NWLR (pt. 857) 153 at 181;
It was argued further that the evidence of the 2nd respondent, as the PW1, that he voted in his polling unit was not cross-examined upon to suggest that he gave hearsay evidence on what transpired in the other polling units of the ward and at the ward collation centre to label his evidence hearsay; and that the 1st – 2nd respondents tendered two sets of results in Exhibits P2A and P2B, the final declaration of result in INEC Forms EC 8B and EC 8E, and the polling units results in Forms EC 8A as Exhibits P7A, P7C for ward 8 and the manipulation of the results for the ward was clear from the alterations in the results as found by the lower Tribunal which had substantial effect on the final result of the constituency vide page 368 of the record of appeal, upon which it was urged that the appeal be dismissed.
In the brief of argument settled by Mr. Uche Obi on behalf of the 3rd respondent dated 5.12.2011 but filed on 6.12.2011, it was advocated that paragraph 4 (i) (c) of the First Schedule uses the operative word “shall” making it mandatory for the 1st – 2nd respondents to plead the scores of all the candidates at the election and having not complied strictly with the said requirement by not pleading the scores of all the candidates, the paragraph in question must be given literal interpretation especially as election petitions are special in nature and character vide Black’s Law Dictionary (Sixth Edition) 1375, INEC v. Iniama (2008) 8 NWLR (pt. 1088) 182, Anini V. Shotimehin (1993) 3 NWLR (pt. 282) 461, Action Congress v. Kaigama (2008) 8 NWLR (pt. 1088) 165, Emesin v. Nwachukwu (1999) 6 NWLR (pt. 605) 154, Ayua v. Adasun (1992) 3 NWLR (pt. 231) 598, Obi v. Mbakwe (1984) 1 SCNLR 192, Nwobodo v. Onoh (1984) 1 SCNLR 1 Balonwu v. Emordi (2010) 1 NWLR (pt. 1174) 79, Nwankwo v. Yar’Adua (2010) 12 NWLR (pt. 1209) 518, Aladetan O. v. Ogunyemi Wole J. (2010) LPELR – CA/B/EPT/313/08, Kalamu v. Gunrim (2003) 16 NWLR (pt. 847) 517, Mokelu v. Federal Commissioner for Works and Housing (1979)(?) 3 SC 35, Aroyewun v. Adebanji (1975) 11 SC 33. Ifezue v. Mbadugha (1984) 1 SCNLR 427 and Katto v. Central Bank of Nigeria (1991) 9 NWLR (pt. 214) 126, upon which it was urged that the appeal be allowed more so the ipse dixit of the 1st – 2nd respondents’ only witness did not prove the allegation of manipulation of result of ward 8 beyond reasonable doubt.
The appellants’ reply brief to the 1st – 2nd respondents’ brief dated and filed on 12.12.2011, argued that the cases of Wamini-Eni v. Delight Igali (supra), and Ogbeide v. Osula (supra) are distinguishable from the present case in that in Wamini-Eni (supra) the petition was decided on the basis of non qualification of a candidate, while Ogbeide (supra) was decided on the ground whether a party who lost election should be sued as a necessary party; also Buhari v. Yusuf (supra) supports the appellants’ case where Uwaifo JSC held that where scores of candidates are decisive of the petition they must be pleaded; and as votes were central to the petition upon which the lower Tribunal decided the petition, the scores of all the candidates that participated in the election should have been pleaded, notwithstanding paragraph 4 (6) of the First Schedule which would not apply where the petition was decided solely on the scores of the candidates.
The reply brief added that the petition was based principally on the votes of the candidates, a substantive issue, not an issue of technicality, obligating the 1st – 2nd respondents to state the scores of all the candidates in the petition following the cases of Mogaji v. Balat (2004) 8 NWLR (pt. 876) 449 at 470, 472-473, Obuzor v. Ake (2009) 2 NWLR (pt. 1125) 388 at 422-424, that the 1st 2nd respondents did not specifically plead loss of 300 votes as their pleading did not identify the unit or units of ward 4 that the votes were omitted, nor did the 1st – 2nd respondents plead non collation of results in ward 8 of the constituency and the evidence led was contrary to the averment in paragraph F1 (iv) and (v) of the petition and should be disregarded in line with the case of Hashidu v. Goje 2 EPR 790 at 309; that the judgment of the lower Tribunal was not based on the alleged disenfranchisement of voters and the loss of 300 votes, making the submission that the 1st – 2nd respondents scored 4,673 votes, if the votes of the disenfranchised voters are added, without legal basis and should be disregarded in line with the cases of Onwuka v. Ononuju (2009) 11 NWLR (Pt.174) 202, Ezekwebili v. Onwuagbon (1998) 3 NWLR (Pt.541) 217 at 238.
The reply brief canvassed further that paragraph G1 of the petition sought a declaration that the 2nd Respondent polled majority of lawful votes at the election and, being declaratory relief, the 1st – 2nd Respondents were required to prove it on the strength of their case, whether or not the Appellants filed no defence to the petition vide Edozien v. Edozien (1998) 13 NWLR (Pt.580) 133 at 147, Tadoggoronwo v. Gatom (2002) 4 NWLR (Pt.757) 453 at 476 and Igbinova v. UBTH (2000) 8 NWLR (pt.667) 68; alternatively, the 1st – 2nd Respondents blew hot and cold at the same time by pleading in paragraph F1(v) of the petition that results were collated in Ward 8 only to state contrariwise that results for Ward 8 were not collated and the said results were withheld for 6 days vide Aliyu v. Adewuyi (1995) 4 NWLR (Pt.442) 284 at 291, Nwole v. Iwuagwu (2005) 16 NWLR (Pt.952) 416 at 571, Ojukwu v. Obasanjo 1 EPR 526 at 652, Ude v. Nwara (1993) 2 NWLR (Pt.278) 638 at 662 and Oladapo v. Bank of the North Ltd. (2000) 1 NWLR (Pt. 694) 269; that the 1st – 2nd Respondents speculated in their submissions that it was possible the PW1 was present to witness what transpired in Ward 8 collation centre contrary to the cases of Rabia v. State (2010) 10 NWLR (Pt.1201) 127 at 155, Abike v. State (1975) NSCC 404 AT 408 stressing that cases be decided on proved facts as opposed to imagined facts or speculation.
The Appellants’ reply brief finally added that the PW1 was not a voter or official in Ward 8 where the 1st – 2nd Respondents had a ward collation agent who signed and dated the election result of the ward on the day of the election 26.12.11, therefore the ward collation agent in question, not the PW1 who was the candidate of the 1st Respondent at the election, was the competent person to testify on what transpired at the ward in line with the cases of Iniama v. Akpabio (supra) at 335 and Buhari v. INEC (supra) at 325-327.
Paragraphs (E), F (1) (2) and G (1) of the petition made scores of the candidates the backbone of the petition as follows:
“e. Your Petitioners state that the election was held on the 26th of April, 2011 when the persons named below were candidates of their respective political parties and according to the Declaration of results of the said election published by the 1st Respondent, scored the number of votes set opposite their names as follows:
1. Hon. John Obafemi (PPN) … 4442 votes
2. Hon. Olusola Samuel Oshimade (PDP) … 4073 votes
3. Hon. Olusola Pelumi Adeboye (CAN) … 4216 votes
Hon. John Obafemi was on the basis of the above stated scores declare winner of the elections and returned as elected.
F. And your Petitioner states that the facts and grounds of this petition are as follows:
1. The 2nd Respondent did not win a majority of the lawful votes cast at the said election and was therefore not duly elected or returned for the following reasons:
i. The result on form EC 8C (i) gave the 2nd petitioner 4073 votes when on clear calculation what is on the said form EC 8C (i), the 2nd petitioner had 4373 votes. The form EC 8C (i) will be found upon at the trial.
ii. Before the result of ward eight was released the 2nd petitioner had 4080 votes while the 2nd Respondent has just 4045 votes which make the 2nd petitioner to be leading before ward eight results was brought in.
iii. At ward eight collation centre Oriole-Oko, Remo North Local Government, votes were collated on Governorship and The Federal House of Representative leaving the State House of Assembly not collated. The Special Presiding Officer (SPO) in charge however made it known to the party agents that amendment will be made on the State House of Assembly and that later the summary sheet would be made available to the party agents, which was never done or made available to us.
iv. Surprisingly the officers of the 1st respondent left ward 8 around 11 pm after the collation and did not get to the final collation centre at the Local Government Secretariat until 2.00 am, as at 27th of April, 2011 for a journey that at most should be a journey of 30 minutes.
v. On the release of the ward eight form EC 8B (1) on the 4th of May, 2011 after several efforts by the 2nd Petitioner to get the summary sheet, we noticed alteration and cancellation of the results which render the result of the said form unintelligible and unreadable clearly this was where the result was manipulated because the 1st Respondent officials in conjunction with the 2nd Respondent on seeing that the 2nd Petitioner was clearly leading and had won the election even in ward 8 had no result to the manipulations in the above manner.
G. WHEREUPON your Petitioners in conclusion and in the premise of the facts and grounds stated above pray for the following reliefs:
1. A declaration that the 2nd Petitioner polled the highest number of lawful votes cast at the said election to the State House of Assembly for the Remo North Local Government Constituency held on the 26th day of April, 2011 and ought to be returned as duly elected.
2. An order directing the 1st Respondent to deliver within 48 hours of the decision of this tribunal a certificate to the 2nd Petitioner in evidence of his return as the validly elected member representing the Remo North Local Government Area Constituency of Ogun State in the State House of Assembly of Ogun State of the Federal Republic of Nigeria.”
The other leg of the petition complained of the qualification of the 2nd Respondent to contest the election in paragraphs 3 and 4 of the petition. For the purpose of dealing with the petition on ground of qualification of a candidate, the scores of all the candidates that participated at the election need not be pleaded by the Petitioner as same are not material to the determination of such dispute see Wamini – Emi v. Igali (2008) 11 NWLR (Pt.1097) 123; or where the votes cast are not attacked in the petition, the scores of all the candidates need not be pleaded – Ukaegbu v. Uzor (2004) ALL FWLR (pt.205) 335, Ogbeide v. Osula (2004) FWLR (pt.191) 1609 or where the scores of the other candidate(s) not pleaded in the petition are inconsequential to the determination of the Petition as in the case of Olaosun v. Ogunsemi (2004) ALL F.W.L.R. (Pt.214) 49, where the third candidate out of the three candidates that contested the election scored 10 votes which were not pleaded by the Petitioner, this Court held that the votes crucial to the petition were the pleaded 12,108 votes of the petitioner and the 12,380 votes of the 1st Respondent, therefore the failure to plead the 10 votes of the other candidate was not fatal to the Petition.
In the instant case, the lower Tribunal gave prominence to the votes scored by all the candidates at the election in its judgment in pages 366 388 of the record upon which it decided principally that the 2nd Respondent scored the majority of lawful votes at the election thus:
“… If there were 1232 valid votes, a sum total of the votes received by each candidate should be 1232 and not a number less. A closer look at exhibit P2A which the summary result for all the wards in the constituency particularly the column for Ward 8 (Orile-Oko), if all the votes recorded for each candidate are summed up, the total number of valid votes would be 1132 not 1137 as recorded as total number of valid votes…
As stated earlier in this judgment the sum of votes of all the candidates do not tally with the recorded valid votes both in exhibits P1H and P2A for Ward 8 Orile-Oko…
Having nullified the election held in ward 8 (Orile-Oko) and having held that the 300 votes scored by the 2nd Petitioner in Ward 4 Odofin (Imagbon) Peteru was not added in the computation of his final score as contained in exhibit P2A, the final results after deduction of the votes scored in Ward 8 would now be as follows.
Action Congress of Nigeria – 3877
Labour Party – 823
MPPP – 19
NAP – 476
Peoples Democratic Party – 4080
Peoples Party of Nigeria – 4045
SDMP – 35
ANPP – 14”
The petition pleaded the names and the scores of three candidates in paragraph (e) thereof (supra). The scores of the other five candidates were not pleaded, yet the said scores were used by the lower Tribunal in adjusting the score-line of all the candidates at the election to arrive at its judgment that the 2nd Respondent scored the majority of lawful votes at the election. In the circumstances of the case, it was therefore necessary for the 1st – 2nd Respondents as Petitioners to plead the scores of all the candidates that participated at the election as required by paragraph 4(1)(c) of the First Schedule to wit –
“An election Petition under this Act shall ….. state the holding of the election, the scores of the candidates and the person returned as the winner of the election..”(My emphasis).
Since the petition turned on the majority of lawful votes scored by the candidates at the election, the failure of the 1st – 2nd Respondents to plead the scores of the other five candidates was fatal to the petition and rendered it incompetent, as rightly submitted by the learned senior counsel for the Appellants see the cases of Dalhatu v. Dikko (2005) ALL FWLR (Pt.242) 483 at 499, Dickson v. Balat (2004) ALL FWLR (Pt.215) 255 at 293-95 or (2004) 1 EPR 244, Ibrahim v. INEC (supra), Khalil v. Yar’Adua (supra), Obuzor v. Ake (supra).
Issue (1) (supra) is accordingly resolved for the Appellants.
The resolution of issue (1) should have been enough to dispose of the appeal in favour of the Appellants without more. However, the appeal is on an election matter and this being the Court of last resort, it would be prudent to look at the other remaining issues. Paragraph F1 (i) – (v) of the Petition pleaded in the main that the result of the election for Ward 8 was “manipulated” by the 3rd Respondent in conjunction with the 1st appellant to deny the 2nd Respondent victory in the Ward. The lower Tribunal held that the said allegation was admitted on the pleadings.
Apart from the general denial in paragraph 1 of the Appellants reply to the petition in page 20 of the record, the Appellants averred in paragraphs 8-11 of the reply in pages 21-22 of the record, that the 2nd Appellant’s scores were lawful and they put the 2nd – 3rd Respondents to the strictest proof of the allegation of manipulation of the result of the Ward. In particular paragraph 11 of the petition pleaded –
“The allegation of unauthorized cancellation and Alteration of results set out in F1 (iv) and (v) are Denied and the Petitioners are hereby put to the Strictest proof of the said allegation.”
The lower Tribunal could not have been correct to state that the Appellants admitted the allegation of manipulation of results of Ward 8 of the Constituency on the Pleadings.
Besides, paragraph G of the petition (supra) requested for declaratory relief which cannot be granted on admissions in the pleadings, or in the absence of evidence from the respondents, but on credible evidence from the claimant see the yet unreported Supreme Court case of Congress for Progressive Change (CPC) v. INEC and Others. APPEAL NO.SC.426/2011 delivered on 28.12.2011, per the lead judgment of the great jurist Adekeye, J.S.C., inter-alia thus:
“It is trite that in a claim for declaration, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the court that upon the pleadings and cogent and credible evidence adduced by him that he is entitled to the declaration of right in his favour.
Nwokidu v. Okanu (2010) 3 NWLR (Pt.1181) pg.362.
Ekundayo v. Baruwa (1965) 2 All NLR pg. 211.
Dantata v. Mohammed (2000) 7 NWLR (pt.664) pg.176.” (My emphasis).
See also Agbaje v. Fashola (supra). It was, accordingly, wrong for the lower Tribunal to hold that the allegation was admitted or could be proved on the pleadings.
Manipulation or alteration of the result of an election is a criminal offence commonly called forgery. The 1st – 2nd Respondents were therefore required to put in evidence the genuine result pitted against the manipulated result. After putting the two sets of results in evidence as Exhibits, the 1st – 2nd Respondents were obligated to call a witness conversant with the entries in the genuine and the manipulated or false results to marry or tie the entries therein to the allegation in the Petition, which was not done by the 1st – 2nd Respondents in the Petition, as the only witness called by the 1st – 2nd Respondents, the PW1, did not link the allegations to any of the exhibits tendered in the petition to prove manipulation of the result of the Ward.
Proof of the falsification of the result of Ward 8 of the constituency was, accordingly, not proved as required by law and, in my view, the lower Tribunal erred in cancelling the result of Ward 8 of the constituency. See Adighije v. Nwaogu (supra), Ojo v. Esohe (supra), Ezeazodosiako v. Okeke (supra), Awuse v. Odili (supra), Chime v. Onyia (2009) 2 NWLR (Pt.1124) 1 at 62-63, Audu v. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456, ANPP v. INEC (2010) 13 NWLR (Pt.1212) 549, Atikpekpe v. Joe (1999) 6 NWLR (Pt.607) 428 at 443, Nwobodo v. Onoh (1984) 1 SCNLR 1 at 34, Etuk v. Isemin (1992) 4 NWLR (Pt.236) 402, Sabiya v. Tukur (1983) 11 SC 109, Wali v. Fafarawa (2004) 16 NWLR (Pt.898) 1, Iniami v. Akpabio (2008) 17 NWLR (Pt.1116) 225 at 323, and Buhari v. INEC (2009) ALL FWLR (Pt.459) 1 at 569.
Contrary to the submissions of the 1st – 2nd Respondents’ learned counsel, uncollated votes of 300 voters was not pleaded in the Petition. What was pleaded in paragraph F2 (i) (v) of the petition (supra) was the alleged disenfranchisement of 300 voters who the 1st 2nd Respondents reckoned would have voted for him to tilt the balance of the election in his favour. Parties are bound by their pleadings and cannot be allowed to stray outside the pleadings save where an amendment of the pleadings is granted to accommodate the new case raised by the parties which was not the case here, consequently the issue of 300 uncollated votes was erroneously entertained by the lower Tribunal contrary to the legal position that pleadings are binding on the parties see the cases cited on the issue (supra) by learned senior counsel for the Appellants and the other cases of Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91, Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355, Yar’Adua v. Barda (1992) 2 NWLR (Pt. 231) 638, and Hashidu v. Goje (2006) 2 EPR 785.
Also, none of the alleged disenfranchised voters testified in respect of the allegation of disenfranchisement – see Audu v. INEC & Others (2010) 13 NWLR (Pt.1212) 456 at 522-523, where this Court held inter alia in the lead judgment of Bada, J.C.A., that:
“…The petitioner alleging non-voting must call a voter from each polling booth in the affected constituency as witnesses and would tender their voters cards and testify that they did not vote on the day of election.
…Evidence of non-voting in a particular polling booth is provable by production of voter’s register, production of voter’s cards and the oral evidence of registered voters who were available and turned up to vote at their respective polling booths on the day of the election but could not vote for a variety of reasons. See – Ayogu v. Nnamani (2006) 8 NWLR (Pt.981) page 160 at 166.
The non-tendering of voter’s cards of the persons alleged to have been disenfranchised, and no evidence to show that the names of those disenfranchised voters were not actually ticked as having voted in the voters’ register is fatal to the case of the appellant. See section 50 (1) and (2) of the Electoral Act, 2006: Awuse v. Odili & Others (2005) 16 NWLR (Pt.952) page 416 at 417.”
See also Yaro v. Wada (2009) ALL FWLR (Pt.472) 1084, Chime v. Ezea (2009) 2 NWLR (Pt.1125) 253 at 357, Rotimi v. Faforji (1999) 6 NWLR (Pt.606) 305, Eriobuna v. Ezeife (1992) 4 NWLR (Pt.235) 417 at 430.
The allegation of disenfranchisement of 300 voters was, accordingly, not met by the evidence of the PW1 who testified that he voted in unit AUD Primary School Ishara 1 Ward 3 on the day of the election and could not have been omnipresent in the other unit of Ward 4 to witness first-hand that 300 prospective registered voters were denied their right to vote for him at the election – see Buhari v. Obasanjo (2005) ALL FWLR (Pt.273) 1 at 111, Buhari v. INEC (20O9) ALL FWLR (Pt.459) 1 at 558.
It is for these reasons that I allowed the appeal on 19.12.2011, with consequential orders setting aside the judgment of the lower Tribunal and affirming the return of the 1st Appellant by the 3rd Respondent as the duly elected candidate representing the Remo North Constituency in the House of Assembly of Ogun State, Parties to bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: This appeal was allowed on the 19th day of December, 2011 and reasons were reserved. I now give my reasons. I read before now the reasons given by my learned brother IKYEGH, JCA for allowing the appeal. I entirely agree with him. My learned brother had adequately treated the issues raised for determination in this appeal. For the same reasons stated in the lead judgment I too would allow the appeal and endorse all the consequential orders made therein. Costs inclusive.
MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother J. S. Ikyegh J.C.A. just delivered. I am in total agreement that the appeal is meritorious and should be allowed.
I too allow same and abide by the consequential orders made therein.
Appearances
PROFESSOR TAIWO OSIPITAN, S.A.N. (with O. J. AKINWALE and D. ENISENYIN)For Appellant
AND
MR. T. O. AMAO (with MR. V. A. AMAO)
MR. UCHE V. OBI (with MR. G. ONOJASON)For Respondent
