HON. JULIUS OYEBANJI AKINREMI V. MR. IPOOLA BINUYO & ORS
(2010)LCN/3807(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of May, 2010
CA/I/EPT/HA/38/08
RATIO
EVIDENCE: BURDEN OF PROOF IN CIVIL PROCEEDINGS
The general position of the law regarding the standard of proof in civil proceedings is that the claimant must succeed upon preponderance of evidence or on the balance of probabilities. By Sections 135, 136 and 137 of the Evidence Act Cap E14 Laws of the Federation of Nigeria (L.F.N.) 2004 the burden of proof in civil proceedings lies on the party who would fail if no evidence were adduced on either side. Where the party upon whom the burden lies adduces sufficient evidence to satisfy the court of the existence of certain facts, the burden shifts to the adverse party to disprove those facts and so on until all the issues in contention between the parties have been dealt with. In other words, the burden of proof of particular facts shifts from side to side throughout the proceedings. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
EVIDENCE: WHAT IS THE BURDEN OF PROOF IN ELECTION PETITION PROCEEDINGS
In election petition proceedings, the burden of proof is the same as in ordinary civil proceedings. See: Buhari Vs Obasanjo (2005) 13 NWLR (941) 1 at 309 – 310 F – A; Omoboriowo Vs Ajasin (1984) 1 SCNLR 108; Osawaru Vs Ezeiruka (19781 6 – 7 SC 135i Adegoke Vs Adibi (1992) 5 NWLR (242) 410. However, where an allegation of a criminal nature is made of electoral malpractices such as acts of violence, ballot box stuffing or ballot box snatching, the petitioner who asserts the position must prove the allegation beyond reasonable doubt. See: Buhari Vs Obasanjo (supra) at 209 D – E; 295 B – E; Nwobodo Vs Onoh (1984) 1 SCNLR 1. It cannot be deemed proved by default of pleadings or otherwise. See: Buhari Vs Obasanjo (2005) 2 NWLR (910) 241 at 416 – 417 H – A. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUDGMENT: EFFECT OF DECISION OF A COURT NOT APPEALED AGAINST
The law is that where a party fails or elects not to appeal against a decision of a court of law he is deemed to have accepted the decision and he is bound by it. See: Tomtee Nig. Ltd. Vs F.H.A. (2010) All FWLR(509) 400 at 415, Ilona Vs Idakwo (2003) FWLR (171) 1715. PER KUDIRAT MOTONMORIOLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
HON. JULIUS OYEBANJI AKINREMI Appellant(s)
AND
1. MR. IPOOLA BINUYO
2. INDEPENDENCE NATIONAL ELECTORAL COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER, OSUN STATE
4. RETURNING OFFICER (INEC) IFE NORTH LOCAL GOVERNMENT STATE CONSTITUENCY
5. ELECTORAL OFFICER IFE NORTH STATE CONSTITUENCY
6. PRESIDING OFFICER, APESIKITI ALAWIYE POLLING UNIT
7. PRESIDING OFFICER, OGBIRIGBIRI POLLING UNIT OF EDUNABON WARD 2
8. PRESIDING OFFICER OF ST.RAPHAEL TORO IN OYERE WARD 1
9. PRESIDING OFFICER OF ST. PAUL?S SCHOOL, MOLODO IN OYERE WARD 1
10. PRESIDING OFFICER OF R.C.M. ONIBANBU OYERE WARD 1
11. PRESIDING OFFICER OF L.A. PRY SCHOOL, KILIBI IN OYERE WARD 2
12. PRESIDING OFFICER OF L. A. SCHOOL, AMULEGUN IN OYERE WARD 2
13. PRESIDING OFFICER, CHRIST CHURCH SCHOOL, ABORISAHDE IN OYERE WARD 2
14. RETURNING OFFICER (INEC) FAMIA WARD
15. RETURNING OFFICER IPETUMODU WARD 1
16. RETURNING OFFICER, EDUNABON WARD 11
17. PRESIDING OFFICER, TOWN HALL 1, IPETUMODU WARD 1
18. PRESIDING OFFICER, COURT HALL 1, IPETUMODU WARD 1
19. PRESIDING OFFICER, COURT HALL 11, IPETUMODU WARD 1
20. PRESIDING OFFICER, ISALE OLA/DELE, IPETUMODU WARD 1
21. PRESIDING OFFICER, ST.AUGUSTINE PRY SCHOOL, IPETUMODU 1
22. PRESIDING OFFICER, CHRIST SCHOOL 11 IPETUMODU WARD 1
23. PRESIDING OFFICER, BAPTIST PRY. SCHOOL, IPETUMODU WARD 1
24. PRESIDING OFFICER, ISALE OLA/OLOOSE, IPETUMODU WARD 1
25. PRESIDING OFFICER, C.A.C. GRAMMAR SCHOOL, IPETUMODU 1
26. PRESIDING OFFICER, AGBANDA, IPETUMODU WARD 1
27. PRESIDING OFFICER, FAMIA POLLING UNIT, FAMIA WARD
28. PRESIDING OFFICER, OKUU-OMONI POLLING UNIT, FAMIA WARD
29. PRESIDING OFFICER, IDI-IROKO POLLING UNIT, FAMIA WARD
30. PRESIDING OFFICER, BAALE SANGO POLLING UNIT, FAMIA WARD
31. PRESIDING OFFICER, EGBEDA POLLING UNIT, FAMIA WARD
32. PRESIDING OFFICER, ONISORO POLLING UNIT, FAMIA WARD
33. PRESIDING OFFICER, ASABI POLLING UNIT, FAMIA WARD
34. PRESIDING OFFICER, CHRIST SCHOOL 1, IPETUMODU WARD 1
35. PRESIDING OFFICER, IWARO POLLING UNIT, IPETUMODU WARD 1
36. PRESIDING OFFICER, THE APOSTOLIC PRY. SCHOOL, IPETUMODU WARD 1
37. PRESIDING OFFICER, EJEMU VILLAGE EDUNABON WARD 11 Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osun State Governorship and Legislative Houses of Assembly Election Petition Tribunal NO.1, sitting at Osogbo (hereinafter referred to as ‘the Tribunal’) delivered on 14th March 2008 dismissing the petition filed by the appellant (as petitioner) against the respondents.
The appellant contested the Ife North Local Government Constituency Seat at the Osun State House of Assembly Election held on 14th April, 2007 on the platform of the Peoples Democratic Party (PDP). The 1st respondent also contested the election on the platform of the Action Congress (AC). The 2nd – 4th respondents returned the 1st respondent as the winner of the election while the appellant came second. The appellant was dissatisfied with the result and on 14th May, 2007 filed a petition before the lower Tribunal seeking the following reliefs:
a. A declaration that the 1st respondent was not lawfully or duly returned at the election for reason that he did not score majority of lawful votes cast at the election.
b. A declaration that the election in Ife North State Constituency was marred with violence.
c. An order declaring the petitioner as the candidate that scored majority of lawful votes cast at the election held on the 14th April, 2007 or alternatively, an order directing the respondents to conduct a bye election in Ife North Constituency.
Pleadings were filed and exchanged, pre-hearing sessions were held and the petition went to trial whereat the appellant and the 1st respondent called witnesses and tendered documents. The 2nd – 37th respondents did not call any witness. Certain documents were produced and admitted in evidence through an electoral officer pursuant to a subpoena. At the conclusion of the trial, the Tribunal in a considered judgment delivered on 14th March, 2008 dismissed the petition. The appellant was dissatisfied with the decision and filed a notice of appeal dated 3rd April, 2008 and filed on 4th April, 2008 containing two grounds of appeal.
In compliance with the rules of this Court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief settled by A. A. Abimbola Esq., is dated 18/8/08 and filed on 19/08/08. It was deemed filed on 1/6/09. The 1st respondent’s brief settled by T. A., Abdulwahab Esq., is dated and filed on 10/7/2009. It was deemed properly filed on 27/1/2010. The 2nd – 37th respondents’ brief was settled by Oghenero Ideh Esq. It is dated 30/10/09 and filed on 2/11/09 but deemed filed on 23/3/2010.
At the hearing of the appeal on 23rd March, 2010, learned counsel for the parties adopted and relied on their respective briefs of argument and urged their respective positions on the court. Mr. Abdulwahab drew the court’s attention to the preliminary objection raised and argued in the 1st respondent’s brief and urged the court to uphold the objection and strike out the appeal. Alternatively, he relied on the arguments advanced in the said brief in response to this appeal. The appellant did not file a response to the preliminary objection.
The appellant formulated two issues for the determination of the appeal as follows:
1. Whether on the face of evidence on record before the Tribunal the 1st respondent is not linked with acts of violence. (Ground 1)
2. Whether the Tribunal ought to find that the acts of violence in the 4 (four) wards substantially affected the outcome of the election. (Ground 2)
The 1st respondent adopted the issues formulated by the appellant. The 2nd – 37th respondents also formulated two issues for determination, which are substantially the same as those formulated by the appellant.
As the 1st respondent has raised a preliminary objection to the competence of the notice of appeal, the objection must be considered and resolved before delving into the merits of the appeal, if necessary.
The main complaint of the 1st respondent in the preliminary objection is that the notice of appeal at pages 473 – 476 of the record is incompetent because Tewo Lamuye Esq., the learned counsel who filed it represented the 2nd – 37th respondents (INEC and its officials) at the Tribunal. Mr. Abdulwahab observed that while Tewo Lamuye Esq. filed the notice of appeal on behalf of the firm of E.F. Ogunjuyigbe & Co., in an earlier appellant’s brief dated 16/7/08 and filed on 25/7/0S the said Tewo Lamuye Esq. presented Otunba Kalejaiye, SAN as his principal. He noted that Otunba Kalejaiye, SAN filed the petition before the Tribunal and conducted a substantial part of the trial. He argued that it is rather strange that a counsel in the firm of the petitioner’s counsel could have been assigned to represent the 2nd – 37th respondents who are constitutionally bound to oppose the petition. He referred to the record of proceedings at pages 367 – 372 where Tewo Lamuye Esq. held the brief of one E.F. Abbe Esq. for the 2nd – 37th respondents. He argued that it is immaterial that he was holding Mr. Abbe’s brief, as a counsel holding brief for another counsel stands in the position of the counsel whose brief he holds for all purposes. He relied on the case of: Peoples Redemption Party Vs INEC (2004) All FWLR(209) 1071. Learned counsel submitted that by virtue of Section 31 of the Court of Appeal Act Cap 75 Laws of the Federation of Nigeria (LFN) 1990 and Order 1 Rule 5 of the Court of Appeal Rules 2007, ‘appellant’ means any person who desires to appeal or appeals from the decision of the court below or who applies for leave to appeal and includes a legal practitioner representing such a person in that behalf. He argued that Tewo Lamuye Esq., having represented the 2nd – 37th respondents at the Tribunal would not have been envisaged as a proper person to come within the definition of an appellant as statutorily defined. He referred to: Ngige Vs Obi (2006) 14 NWLR (999) 1 at 197.
He submitted that a court would interfere with a litigant’s right to counsel of his choice in a situation where Counsel appears for one party at an early stage of the transaction and then turns around at a later stage to appear for his opponent. He relied on: Ikpana Vs Registered Trustees, P.C.N. (2006) All FWLR (310) 1703 at 1720 C. He argued that an appeal is a continuation of the original case and a party (including his counsel) is confined to the case pleaded in the court of first instance and cannot make a different case on appeal. He relied on: Onyeke Vs Harriclem Nig. Ltd. (1998) 7 NWLR (536) 64; Anatogu Vs Iweka (1995) 8 NWLR (415) 547. He submitted further that by purporting to represent the appellant, the learned counsel’s action is unprofessional and a violation of Rule 10 of the Rules of Professional Conduct in the Legal Profession. He urged the court to hold that there are sufficient reasons to strike out the notice of appeal pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007.
I have carefully examined the record of proceedings in this matter, particularly at pages 367 – 372. The record supports Mr. Abdulwahab’s contention that Mr. Tewo Lamuye, while holding the brief of Mr. F. E. Abbe for the 2nd – 37th respondents (INEC and its officials) fully participated in the proceedings of 13/11/07 before the Tribunal when the evidence of PW14 – PW17 was taken. He cross-examined PW16 and PW17. As rightly submitted by learned counsel for the 1st respondent, in holding E. F. Abbe’s brief on 13/11/07, Mr. Lamuye stood in Mr. Abbe’s shoes for all purposes. See: P.R.P.Vs I.N.E..C (supra) relied on by learned counsel for the 1st respondent. See also: Oba Vs Oyeyemi (1978) 6 FCA90: Falowo Vs Banigbe (1998) 7 NWLR (559) 679; Shyllon Vs Asein (1994) NWLR(353) 670 all cited with approval in P.R.P.Vs I.N.E.C. (supra), Clearly in that capacity Mr. Lamuye was defending the petition on behalf of the 2nd – 37th respondents. The petition was dismissed. It is therefore indeed quite strange that the notice of appeal challenging the judgment, which in effect was in favour of the parties he had represented at the trial, was filed by the same Tewo Lamuye, although stated to be acting on behalf of E.F. Ogunjuyigbe & Co. (see page 476 of the record).
In the circumstances of the present case, being an appeal against the decision of an election petition tribunal by the unsuccessful petitioner, there is no doubt that the appeal is a continuation of the matter before the Tribunal. The subject matter is the same and the parties are expected to maintain the positions they took before the Tribunal. Indeed, in the case of Ngige Vs Obi (supra), INEC was severely upbraided for taking a position on appeal different from the position it took before the Tribunal.
In the case of: Anatogu Vs Iweka II (1995) 8 NWLR 5) 547 at 582 – 583 H – 0, the Supreme Court referred to the dictum of the Rt. Hon. Sir Ademola, CJN in the case of Onigbongbo Community Vs Minister of Lagos Affairs & Ors. (1971) NCLR 186 at 192; (1971) 7 NSCC 136 at 139 on the principles that guide the court in the exercise of its power to restrain a counsel from representing a party in a matter in which he had previously appeared for the other side thus:
“On the one hand, the courts are not to prevent litigants from employing the services of counsel of their own choice/ on the other hand, a person must not be allowed to employ the services of counsel, nor should counsel accept a brief, where it is clear that the services to be rendered flow out of or are closely connected with the previous services he had rendered to the opposing side.
Clearly the jurisdiction to restrain counsel from acting for the antagonist of his former client stems from the principle that a man ought to be restrained from doing any act contrary to the duty that he owes to another, and that the jurisdiction will be exercised at the instance of the former client…”
(Emphasis supplied).
See also: Onyeke Vs Harriclem (Nig.) Ltd. (supra) at 71 – 72 F – C; Ikpana Vs R.T.P.C.N. (supra) at 129 B- C.
The appellant, as noted earlier in this judgment did not react to this issue by filing a reply brief, and in my respectful view, advisedly so. There could be no justification for the conduct of Mr. Lamuye in the circumstances of this case. It was most unprofessional. Such conduct must be and is hereby deprecated in the strongest terms. I now return to the preliminary objection. It is pertinent to note that what is before the court is a preliminary objection to the competence of the notice of appeal and not an application to restrain Mr. Lamuye from further appearing for the appellant in this appeal. In Anatogu Vs Iweka II (supra) and Ikpana Vs R.T.P.C.N. (supra) it was held that a challenge to the representation by counsel should be at the instance of his former client. It was held in Ikpana’s case (supra) at 135 – D that the respondents who were not the clients of the appellant’s counsel were not competent or qualified to bring the application challenging the appearance of the said counsel. I am of the respectful view that the principle in the two cases is applicable in this instance. The 2nd – 37th respondents have not challenged the notice of appeal filed by Mr. Lamuye. It is also noteworthy that after filing the notice of appeal, Mr. Lamuye took no further part in the proceedings before this Court. The appellant’s brief, as earlier stated, was settled by Otunba Kalejaiye, SAN. There is no challenge to the form or substance of the Notice of Appeal. Thus, although the action of Mr. Lamuye in filing the notice of appeal leaves much to be desired, the 1st respondent has failed to satisfy the court that the notice of appeal filed on 4/4/08 is defective in form or substance. For this reason I find no merit in the preliminary objection. It is accordingly hereby overruled.
I shall now consider the merits of the appeal. The appeal shall be determined on the issues formulated by the appellant.
Issue 1
Whether on the face of evidence on record before the Tribunal the 1st respondent is not linked with acts of violence.
In support of the first issue, learned counsel for the appellant submitted that the appellant gave evidence in paragraphs 8, 10, 11 and 12 of his written statement on oath in support of his averment in paragraph 28 of his petition to the effect that the acts of violence alleged therein were
perpetrated, facilitated and/or participated in by the 1st respondent. He argued that the 1st respondent, in paragraph 24 of his reply, merely made a general denial of paragraph 28 of the petition. He reproduced paragraphs 1 – 20 of the 1st respondent’s deposition and contended that he failed to lead any evidence to deny or rebut the allegation, particularly the evidence of the appellant who testified as PW20. He submitted that having failed to lead evidence in support of paragraph 24 of his reply, the said paragraph is deemed abandoned and ought to be struck out. He submitted further that a party who fails to give evidence in support of his pleading or to challenge the evidence of his opponent is deemed to have accepted the evidence of the adverse party notwithstanding the general traverse. He referred to: Adegbite Vs Ogunfaolu (1990) NWLR (146) 578; Akintola Vs Balogun (2000) NWLR (642) 532 at 545; Awuse Vs Odili (2005) 16 NWLR (952) 416. He submitted that where an adversary fails to adduce evidence to place on the other side of the imaginary scale of justice, minimum evidence adduced by the other side would suffice to prove his case. He relied on: Newbreed Organisation Ltd. Vs Erhomonsele (2006) 5 NWLR (974) 479 2 527 F – G; Buraimoh Vs Bamgbose (1989) 3 NWLR (109) 352.
Learned counsel for the appellant observed that even though the appellant was extensively cross-examined by learned counsel for the 1st respondent, no cross-examination was directed towards destroying the evidence alleging the participation of the 1st respondent in the acts of violence. He argued that the 1st respondent failed to challenge the evidence of PW20 in paragraph 12 of his written statement on oath, adopted at the trial, that the D.P.O. of Ipetumodu and his officers had to rescue him and his family from thugs, hoodlums and miscreants of the 1st respondent and the Action Congress. He submitted that failure to cross-examine a witness upon a particular issue amounts to tacit acceptance of the truth of the evidence of the witness. He referred to: Oforlete Vs The State (2000) 12 NWLR (581) He submitted that having led credible evidence in proof of the averment in paragraph 28 of the petition that the 1st respondent facilitated and participated in the acts of violence, which the 1st respondent failed to rebut, the appellant’s evidence ought to be accepted and relied upon by the court. He urged the court to resolve this issue in the appellant’s favour.
In reaction to this issue, learned counsel for the 1st respondent referred to paragraphs 7, 12, 14, 15 and 24 of the 1st respondent’s reply at pages 183, 185 and 191 of the record wherein the 1st respondent denied the allegations of violence either personally or through agents, supporters, privies or party members. He argued that having regard to the state of the pleadings, the said allegations had been put in issue. On what constitutes an ‘issue of fact’ for determination by a court or tribunal he referred to: Overseas Construction Co. Ltd. Vs Creek Enterprises Nig. Ltd. (1985) 12 SC 158 at 190-191; Buhari Vs Obasanjo (2005) 2 NWLR (910J 241 at 483.
He submitted that in the instant case, although the Tribunal found at pages 468 – 469 of the record that acts of violence were proved in 5 polling units from 3 wards, it went further to emphasise the requirement of the law that not only must the violence in the aforesaid units have substantially affected the outcome of the election, the petitioner must also show by credible evidence that the 1st respondent took part in or authorised the violence. He referred to: Buhari Vs Obasanjo (2005) 13 NWLR (941) 194 at 238; Yusuf Vs Obasanjo (2005) 18 NWLR (956) 96 at 164; Opie Vs Ibru (1992) 3 NWLR (231) 158 at 208 – 209. He submitted that after reviewing the evidence the Tribunal came to the conclusion that there was no evidence linking the 1st respondent with the acts of violence or that he expressly authorised it and thus resolved the issue against the appellant.
He submitted that the averments in paragraphs 8 and 12 of the appellant’s deposition, upon which he relied heavily, being criminal in nature do not meet the required standard of proof beyond reasonable doubt as provided in Section 138 of the Evidence Act. He submitted that under cross-examination, the appellant (PW20) stated that the units he referred to in paragraph 7 of his deposition where he alleged that he and his supporters were chased away by thugs of the AC and its candidate Ipoola Binuyo, were the units in his hometown of Asipa. Learned counsel however noted that by paragraph 16 of the petition, which the 1st respondent admitted in paragraph 10 of his reply, the unchallenged evidence before the court was that all the results in the 8 polling units that make up Akinlaluj Asipa Ward 1 where the appellant resides were fully declared and that the appellant did not challenge the results so declared. He submitted further that there was no evidence from the Divisional Police Officer, Ipetumodu or any of his officers to substantiate the averment in paragraph 12 of his deposition that they rescued him and his family from the thugs. He urged the court to invoke Section 149 (d) of the Evidence Act against him for withholding the evidence.
In reaction to the contention that the 1st respondent did not deny the allegations of involvement in acts of violence, learned counsel submitted that in paragraph 5 of the 1st respondent’s deposition (at page 204 of the record), which he adopted as his evidence in chief (at page 386 of the record), he averred that he returned home immediately after casting his vote at the Apostolic Primary School polling station. He argued that this evidence is conclusive of the fact that the 1st respondent could not have been involved in acts of violence that allegedly took place in several polling units in another town, Asipa, on the same day. He submitted further that Exhibits 25 and 27 tendered by the 1st respondent prove that results were declared in all the polling units in the ward (Asipa). Learned counsel argued that this is a proper case where documentary evidence ought to be used as a hanger upon which to test and assess oral evidence. In support of this Proposition he relied on: Fasanu vs Adekoya (1974) 6 SC 83; Kimdey Vs Military Governor of Gongola State 2 NWLR (77) 445; Jinadu Vs Esurombi-Aro (2005) ALL FWLR (251) 349 at 382. On the contention that the 1st respondent abandoned his pleadings, Mr. Abdulwahab submitted that under the present dispensation the written statement on oath of a witness is equivalent to his oral testimony in court and once adopted becomes his evidence in chief. He submitted that in the circumstances, the authorities cited by learned counsel for the appellant on abandonment of pleadings are irrelevant to this case. He submitted, without conceding, that even if the 1st respondent did not deny the allegations against him, a petitioner must succeed on the strength of his petition and not on the weakness of the respondent’s case. He relied on: Jang Vs Dariye (2003) 15 NWLR (843) 436; Awuse Vs Odili 12005) ALL FWLR (261) 248 at 261. He submitted that the lower Tribunal was right in holding that there was no evidence linking the 1st respondent with the acts of violence or that he expressly authorised it. He urged the court to resolve this issue against the appellant.
In reaction to this issue, learned counsel for the 2nd – 37th respondents submitted that by virtue of Section 145 (1) (b) & (c) of the Electoral Act 2006, electoral malpractices or any other illegalities committed at an election, which are neither the act of the candidate nor linked to him, will not result in the nullification of the election unless it is proved that he expressly authorised the said acts. He referred to Buhari Vs Obasanjo (supra) at 264 – 265. In the instant case, he submitted that the appellant had the initial burden of proving the allegations of violence against the 1st respondent. He argued that having led evidence in support of paragraphs 8, 11 and 12 of his deposition, the burden shifted to the 1st respondent to proffer answers to the allegations. He contended that paragraphs 5, 6, 7, 8, 11, 12 and 17 of the 1st respondent’s deposition, particularly paragraph 5 thereof, constitute a complete answer to the allegations against him as he showed that he was not at any of the venues where the alleged acts of violence took place. He submitted that the evidential burden on the 1st respondent was fully discharged by the said averments and contended that the burden shifted back to the appellant to prove that the 1st respondent was not at home at all material times.
He argued further that although election petition proceedings are civil in nature, where an allegation of a criminal nature is made, the standard of proof required to establish the allegation is beyond reasonable doubt. He referred to: Nwobodo Vs Onoh (1984) 1 SCNLR 1; Nnakwere Vs Adewunmi (1966) 1 ANLR 119 at 122; Okuarume Vs Obaboko (1965) 4 NSCC286; Ugbo Vs Aburime (1994) 8 NWLR (360) 1. He submitted that the evidence given by the 1st respondent in paragraph 5 of his deposition that he returned home immediately after casting his vote is akin to the defence of alibi in criminal proceedings. On the meaning of alibi he referred to: Kwagshir Vs The State (1994) 2 NWLR (328) 592. He submitted that in the instant case it was incumbent upon the appellant to produce credible evidence placing the 1st respondent at the scene of the alleged acts of violence. He submitted that the burden is always on the accuser to disprove the defence of alibi. He referred to: Akinyemi Vs Akinyemi (1963) 1 ANLR 340. He submitted that the appellant failed to adduce any evidence to controvert the 1st respondent’s evidence on the issue of his whereabouts and also failed to cross-examine him on that aspect of his evidence. He submitted that the findings of the Tribunal on this issue could not be faulted. He urged the court to resolve this issue against the appellant.
He argued further that although election petition proceedings are civil in nature, where an allegation of a criminal nature is made, the standard of proof required to establish the allegation is beyond reasonable doubt. He referred to: Nwobodo Vs Onoh (1984) 1 SCNLR 1; Nnakwere Vs Adewunmi (1966) 1 ANLR 119 at 122; Okuarume Vs Obaboko (1965) 4 NSCC 286; Ugbo Vs Aburime (1994) 8 NWLR (360) 1. He submitted that the evidence given by the 1st respondent in paragraph 5 of his deposition that he returned home immediately after casting his vote is akin to the defence of alibi in criminal proceedings. On the meaning of alibi he referred to: Kwagshir Vs The State (1994) 2 NWLR(328) 592. He submitted that in the instant case it was incumbent upon the appellant to produce credible evidence placing the 1st respondent at the scene of the alleged acts of violence. He submitted that the burden is always on the accuser to disprove the defence of alibi. He referred to: Akinyemi Vs Akinyemi (1963)1 ANLR 340. He submitted that the appellant failed to adduce any evidence to controvert the 1st respondent’s evidence on the issue of his whereabouts and also failed to cross-examine him on that aspect of his evidence. He submitted that the findings of the Tribunal on this issue could not be faulted. He urged the court to resolve this issue against the appellant.
The general position of the law regarding the standard of proof in civil proceedings is that the claimant must succeed upon preponderance of evidence or on the balance of probabilities. By Sections 135, 136 and 137 of the Evidence Act Cap E14 Laws of the Federation of Nigeria (L.F.N.) 2004 the burden of proof in civil proceedings lies on the party who would fail if no evidence were adduced on either side. Where the party upon whom the burden lies adduces sufficient evidence to satisfy the court of the existence of certain facts, the burden shifts to the adverse party to disprove those facts and so on until all the issues in contention between the parties have been dealt with. In other words, the burden of proof of particular facts shifts from side to side throughout the proceedings.
In election petition proceedings, the burden of proof is the same as in ordinary civil proceedings. See: Buhari Vs Obasanjo (2005) 13 NWLR (941) 1 at 309 – 310 F – A; Omoboriowo Vs Ajasin (1984) 1 SCNLR 108; Osawaru Vs Ezeiruka (19781 6 – 7 SC 135i Adegoke Vs Adibi (1992) 5 NWLR (242) 410. However, where an allegation of a criminal nature is made of electoral malpractices such as acts of violence, ballot box stuffing or ballot box snatching, the petitioner who asserts the position must prove the allegation beyond reasonable doubt. See: Buhari Vs Obasanjo (supra) at 209 D – E; 295 B – E; Nwobodo Vs Onoh (1984) 1 SCNLR 1. It cannot be deemed proved by default of pleadings or otherwise. See: Buhari Vs Obasanjo (2005) 2 NWLR (910) 241 at 416 – 417 H – A. In the instant case, it would be of no moment if the 1st respondent failed to challenge the allegations of acts of violence made against him. The burden of proof in this regard does not shift to the 1st respondent at any stage of the proceedings.
Having considered the applicable legal principles, it is necessary to examine the state of the pleadings and evidence led in respect thereof. In paragraphs 18, 19, 20, 22, 24 and 25 of the petition the appellant averred that the election in several wards was marred by various acts of violence. In paragraph 28 of the petition he averred thus:
“The petitioner says that the violence pleaded in this petition and in all the polling booths being complained about were facilitated, perpetrated and or participated in by the pt respondent, his agents/privies and political party and members.”
The 1st respondent denied these allegations in paragraphs 7, 12, 14, 15 and 24 of his reply at pages 183, 185, 186 and 191 of the record. In paragraph 7 in particular he averred thus:
“7. The 1st respondent in answer to paragraph5of the petition states that:
(a) The election of April 14, 2007 was substantially conducted freely, fairly and in substantial compliance with the provisions of the relevant electoral legislation and guidelines.
(b) The 1st respondent denies any knowledge of or involvement in any violence or corrupt practices in connivance with officers of the 3rd respondent or with any individual at all.”
It is certainly clear from the state of the pleadings that the onus was on the appellant to prove beyond reasonable doubt not only that there were acts of violence that marred, the outcome of the election on 14th April 2007 but also that the 1st respondent was directly linked to the acts of violence or that he authorised them.
The appellant led evidence in support of paragraph 28 of the petition in paragraphs 8, 10, 11 and 12 of his deposition (at pages 25 and 26 of the record), which he adopted at the trial as his evidence in chief. The paragraphs read:
“8. That in each of the polling units in my Ward, I and my loyalists and supporters were also chased away by the thugs, hoodlums and miscreants of the Action Congress and its candidates, Ipoola Binuvo.
10. That the aforementioned thugs/hoodlums and miscreants also invaded my residence/ held my wife and children hostage and prevented them from voting.
11. That throughout that day, I had to take refuge at the palace of Apetu of Ipetumodu.
12. That it was the D.P.O. Ipetumodu and his officers who actually rescued me and members of my family from the thugs, hoodlums and miscreants of the Action Congress and Ipoola Binuyo.”
(Emphasis supplied)
In paragraph 5 of the 1st respondent’s deposition (at page 204 of the record), which he adopted at the trial as his evidence in chief, he averred thus:
“5. That on the 14h April, 2007 I went to the Apostolic Primary School polling [unit] to cast my vote which I did and immediately returned home.”
As stated earlier in this judgment, the burden of proving the allegation of involvement in acts of violence against the 1st respondent lay squarely on the appellant. He failed to lead any evidence to substantiate the allegations. For instance he stated in his deposition that he and his supporters were chased away from each of the polling units in his ward by thugs, hoodlums and miscreants of the Action Congress and its candidate Ipoola Binuyo. He gave no evidence that he physically saw Ipoola Binuyo (the 1st respondent) at any of the polling units in his ward on that day. He did not call any of his supporters who were allegedly chased away by the thugs to testify to the fact that the 1st respondent participated in or authorised the acts of violence. Indeed, none of his witnesses was able to identify any of the alleged thugs or miscreants. It was not sufficient for the appellant to allege that thugs of the AC and the 1st respondent attacked him and his supporters. He ought to have gone further to identify some of them and show how he was able to recognize them as thugs hired by the AC and/or the 1st respondent.
In paragraphs 7 and 8 of his deposition, the appellant averred that he moved around and monitored the voting process in other polling units in his ward but that he and his supporters were chased away by thugs, hoodlums and miscreants of the AC and the 1st respondent. Curiously enough, he pleaded in paragraph 16 (i) of his petition that results were fully declared in Asipa/Akinlalu Ward 1, which is his ward. He also testified that he and his family had to take refuge at the Palace of Apetu of Ipetumodu. No member of the Palace was invited to testify in support of this assertion. Furthermore, neither the D.P.O of Ipetumodu nor any of his officers was called to testify as to how, when and where they rescued the appellant and members of his family and from whom. I agree with the submissions of learned counsel for the respondents that in the circumstances of this case, and having regard to the allegations of acts of a criminal nature, there was no burden on the 1st respondent to prove his innocence. The appellant proffered no evidence to controvert the evidence of the 1st respondent that he returned home immediately after casting his vote. In other words, he failed to prove the allegations of electoral violence against the 1st respondent beyond reasonable doubt. The first issue must therefore be and is hereby resolved against the appellant.
Issue NO.2
Whether the Tribunal ought to find that the acts of violence in the 4 (four) wards substantially affected the outcome of the election.
In support of this issue, learned counsel for the appellant submitted that the lower Tribunal found that acts of violence had been established in the following wards:
(1) Ipetumodu Ward 1
(a) Iwaro Unit and
(b) Court Hall Unit.
(2) Edunabon Ward II
Ogbirigbiri Unit.
(3) Oyere Ward I
(a) Toro Unit and
(b) Molodo Unit 5.
(4) Famia
He submitted that there are only 10 wards in the Local Government and that the total number of votes for the four wards referred to above is 15, 586 out of 43, 269. He argued that the appellant placed sufficient material before the Tribunal to enable it hold that the acts of violence substantially affected the result of the election. He relied on the case of Adoh Vs Owoade (1999) 9 NWLR (617) 30. Learned counsel referred to the evidence of PW3, PW4, PW7, PW14 and PW16, which he contended showed that the votes of the majority of voters were not counted or collated. He submitted that in support of paragraph 23 of the petition, the appellant averred in his deposition that being a native of Ipetumodu he knew that his people voted for him but the entire votes of Ipetumodu were not counted. He submitted that this evidence was unchallenged. He also submitted that from the results declared by the 2nd – 4th respondents, the 1st respondent won the election by a marginal difference of 109 votes. He contended that but for the acts of violence by the 1st respondent and his supporters, which prevented the appellant’s supporters and loyalists from voting and the non-collation of results in Ipetumodu 1, Edunabon II and Oyere I, the appellant would have won the election. He submitted that once the petitioner is able to establish irregularities or acts of violence he is entitled to redress. He argued that in the instant case, the appellant could still succeed even without proving the allegation of crime. He relied on: Wuam Vs Aka (1999) 8 NWLR (60) 150. He submitted that where the petitioner establishes non-compliance with the provisions of the Electoral Act and the Tribunal is unable to determine whether or not the result of the election would have been affected by the irregularities, acts of violence, etc, the election ought to be avoided on the ground that civil cases are proved by a preponderance of accepted evidence. He relied on the case of: Swen Vs Dzungwe (1966) N.M.L.R. 297. Learned counsel urged the court to resolve this issue in the appellant’s favour, avoid the election and order a bye-election into the Ife North Local Government constituency seat of Osun State.
In response to this issue, learned counsel for the 1st respondent submitted that the lower Tribunal found acts of violence established in 5 out of the 90 units that make up the Constituency and that the 5 units are within 3 and not 4 wards as claimed by learned counsel for the appellant. He observed that there is no appeal against the finding of the Tribunal that acts of violence were proved in 5 units of 3 wards and submitted that the said finding stands admitted and undisputed.
He referred to: Tiona Vs Idakwo (2003) FWLR (171)1715. On the contention that once the petitioner establishes acts of non-compliance the election ought to be avoided on the ground that civil cases are proved upon a preponderance of evidence, learned counsel submitted that once an allegation of crime is made the standard of proof is beyond reasonable doubt. He submitted that the persons alleged to have perpetrated or participated in the alleged acts of violence must be shown to be agents of the 1st respondent. He relied on the cases of: Michael A. Nnachi Vs Hon. Irem O. Ibom & Ors. (2004} 16 NWLR (900) 635; Oyegun Vs Igbinedion (1992) NWLR (226) 747 at 759 – 760. He submitted that a candidate cannot be held responsible for acts of violence which are unsolicited or of which he or his agent was ignorant. He referred to: Wali Vs Bafarawa (2004) 16 NWLR (898) 44.
He submitted further that even where acts of non-compliance have been established, the petitioner must go further to show that the non-compliance affected the result of the election. He submitted that the respondent has no burden of proof placed on him. He cited the cases of: Yusuf Vs Obasanjo (2005) 18 NWLR (956) 181; Biyu Vs Ibrahim (2006) 8 NWLR (981) 19 at 50. With regard to the contention of the appellant that the difference in scores between him and the 1st respondent was marginal (109 votes), he argued that the requirement of the law is that the candidate with the majority of lawful votes would be declared the winner of the election. He contended that a candidate could win with just one vote. He argued that the appellant’s contention that he would have scored more votes from the units affected by violence is speculative. He urged the court to dismiss the appeal.
Learned counsel for the 2nd – 37th respondents submitted that if the first issue is resolved against the appellant, this second issue becomes a moot point. Relying on the authority of Oyegun Vs Igbenedion (supra), he submitted that once the court finds that the 1st respondent was not party to or did not authorise or sponsor the acts of violence found established by the court, his election ought not to be nullified. He submitted that Section 146 of the Electoral Act, 2006 is designed to ensure that elections are only nullified where there is abundant material before the Tribunal of a substantial infraction within the intendment of the Act. He referred to the case of: Buhari Vs Obasanjo (2005) 13 NWLR (941) 1 at 280 F – H & 308 F in this regard. He submitted that the Tribunal’s finding that the 1st respondent was elected by a majority of lawful votes amounts to an affirmation that from the facts before it the election was conducted substantially in conformity with the principles of the Electoral Act. He argued that for an appellate court to overturn a finding of fact of a lower court, it must be satisfied that such finding was lacking in logic and common sense or that it was perverse. He referred to: Buhari Vs Obasanjo (supra) at 195 E.
On the issue as to whether the acts of violence found established in 5 units substantially affected the result of the election, learned counsel submitted that the evidence of the six witnesses referred to in the appellant’s brief fell far short of the standard of proof required to discharge the onus on the appellant. He contended that none of the witnesses testified as to the quantum of votes allegedly lost by the petitioner or gained by the 1st respondent. He submitted that the Tribunal was being asked to speculate without considering the fact that the 1st respondent was also affected by the acts complained of. He argued that in any event the Tribunal held that the infractions complained of did not impugn the substantial compliance with the Act. He urged the court to resolve this issue in favour of the respondents.
In considering this issue, two pertinent observations must be made at the outset. The first, as submitted by learned counsel for the 1st respondent, is that contrary to the submission of learned counsel for the appellant in paragraphs 4.01 and 4.02 of his brief, the Tribunal found acts of violence established in only 3 wards and not 4 as stated therein. In its judgment the Tribunal found that acts of violence were proved in Ipetumodu Ward I (Iwaro and Court Hall units), Edunabon Ward II (Ogbigbiri Unit) and Oyere Ward I (Toro and Molodo Units). The Tribunal did not find acts of violence proved in Famia Ward. See page 469 the record. Secondly, there is no appeal against the finding of the Tribunal that acts of violence were established in only 5 units in 3 wards. The law is that where a party fails or elects not to appeal against a decision of a court of law he is deemed to have accepted the decision and he is bound by it. See: Tomtee Nig. Ltd. Vs F.H.A. (2010) All FWLR(509) 400 at 415, Ilona Vs Idakwo (2003) FWLR (171) 1715. The issue in contention therefore is whether the Tribunal ought to have found that the acts of violence in the 5 units substantially affected the outcome of the election.
In support of this issue, learned counsel for the appellant placed particular reliance on the evidence of PW3, PW4, PW7, PW14 and PW16. I have considered the evidence of these witnesses as contained in the record. PW3, Faleye Samson was a supervisory presiding officer for Ipetumodu Ward 1. He testified that as a result of violence results were collated in only 9 out of the 13 units in the ward. He stated under cross-examination that he did not know if the 1st respondent scored the majority of votes in the 9 units collated (see pages 170 and 356 of the record). His evidence was supported by PW4, Adeleke Adeloye the Ward Collation Officer (pages 153 and 358 of the record). However, neither of these witnesses gave evidence as to the number of votes affected by non-collation in the 4 units affected. Moreover, the Tribunal found acts of violence established in only 2 units in Ipetumodu Ward I. As stated earlier in this judgment, the appellant did not appeal against the finding and is therefore bound by it. PW7 testified in respect of Famia Ward. The Tribunal did not find acts of violence established in Famia Ward. In the resolution of this issue, the evidence of PW7 is therefore irrelevant. PW 14, Ojo Samson Olalere, Collation Officer for Oyere Ward I testified that his supervisor submitted results for only 3 out of 6 polling units (pages 65 – 66 and 368 – 369 of the record). PW16, Ramoni Mustapha, presiding officer for Molodo Unit 5 in Oyere Ward I testified that the election materials were hijacked and results destroyed by hoodlums (pages 57 and 371 of the record). The Tribunal found acts of violence established in only 2 units in Oyere Ward I. No evidence was led as to the number of votes affected by the non-collation of results in the affected units. PW5, Adegboye Adewale, Presiding officer for Ogbirigbiri Village Unit in Edunabon Ward II testified that although voting began smoothly, the exercise was later marred by political thugs who voided all the votes in the ballot box (pages 153 & 358 of the record). In Edunabon Ward II the Tribunal found acts of violence established in Ogbirigbiri unit only.
In paragraph 4.02 of his brief, learned counsel for the appellant stated thus:
“There are only 10 (ten) wards in the Local Government. The total number of votes for the 4 (four) wards is 15, 586 out of 43, 269. The proportion of number of votes affected by the acts of violence in relation to the total number of votes is large, material and essential(substantial?)”
It is clear that this submission is premised on the total number of votes in all the units of the affected wards whereas the Tribunal found acts of violence established in only 5 units in 3 wards. I am of the respectful view that this premise is erroneous. Section 146 (1) of the Electoral Act 2006 provides:
“146 (1) An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the noncompliance did not affect substantially the result of the election.”
It has been held that the degree of non-compliance that would render an election void must be so great as to amount to conducting an election in a manner contrary to the principle of election by ballot and must be so great as to satisfy the court that it did affect or might have affected the majority of the voters, or in other words, the result of the election. See: Buhari Vs Obasanjo (2005) 2 NWLR (910) 241 at 417 – 418 H – A: Awolowo Vs Shagari (19791 6 – 9 SC 73; (1979) 12 NSCC87 at 123. In Yusuf Vs Obasanjo (2005) 18 NWLR (956) 96 at 181 0, Salami, JCA stated thus:
“The petitioner must not only show noncompliance but must also demonstrate that the votes attracted or scored through the non-compliance affected the result of the election or had the effect of disenfranchising majority of the electorate in the constituency [Akinfosile Vs Ijose (1960) 5 FSC 192; (1960) SCNLR 447 referred to].
His Lordship further held at page 181 F – G that noncompliance would be deemed substantial if the victory of the respondent would be reversed when the scores or votes credited to him through non-compliance are deducted from his final score. In that case the petitioner neither pleaded nor adduced evidence in support of figures scored from the noncompliance. In the instant case the Tribunal found noncompliance through acts of violence established in only 5 units of 3 wards out of the 10 wards in the Local Government. The appellant did not adduce any evidence to show the number of votes affected by the non-compliance nor did he show that the acts of violence in 5 units disenfranchised the majority of voters in the election. The contention that he would have scored a majority of votes in Ipetumodu Ward I is speculative to say the least and without foundation. I am of the respectful view and I do hold that not only did the appellant fail to prove that the 1st respondent was linked to the acts of violence complained of, he also failed to prove that the acts of violence established in 5 polling units substantially affected the result of the election. He failed to advance any reason to warrant interference with the judgment of the Tribunal in this regard. This issue is also resolved against the appellant.
In conclusion, I hold that the appeal lacks merit. It is accordingly dismissed. The judgment of the Governorship and Legislative Houses Election Petition Tribunal, Osun State, sitting at Osogbo in Petition No. HA/EPT/OS/8/07 delivered on 14/3/05 is hereby affirmed. Costs of N30,000.00 are awarded against the appellant and in favour of the 1st respondent.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother K.M.O. Kekere-Ekun, J.C.A. and I agree that the appeal lacks merit and should be dismissed. I dismiss same and abide by the order contained in the said lead judgment including order on costs.
SIDI DAUDA BAGE, J.C.A.: I have the privilege of reading in advance the Judgment delivered by my learned brother, K. M. O. Kekere-Ekun, JCA.
The issues raised were dealt with in detail and I have nothing more to add. I agree with the reasonings and conclusions reached in holding that the appeal has no merit and I also dismiss same. I abide by the order made in respect of Costs.
Appearances
A. A. ABIMBOLA with CHIEF YOMI ALLIYU
MISS THELMA OTAIGBEFor Appellant
AND
T. A. ABDULWAHAB
O. E. L. IDEHFor Respondent
