HON. PETER AKUJAH & ANOR v. SULEIMAN Y. KWANDE & ORS
(2011)LCN/4908(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of November, 2011
CA/J/EP/HR/187/2011
RATIO
PRELIMINARY OBJECTION: ATTITUDE OF THE COURT TO FAILURE OF THE RESPONDENT TO SEEK THE LEAVE OF COURT TO TIMEOUSLY ARGUE HIS PRELIMINARY OBJECTIONS
As a preliminary to the determination of this appeal, I would briefly consider the effect of the preliminary objection raised by the 1st and 2nd Respondents which same on a plethora of decided authorities in the light of the circumstance is deemed abandoned for failure to timeously seek the leave of court to argue same. The case in point is Oforkire and other v. Maduike and 5 Others (2003) 5 NWLR (Pt. 812) 166 at 178 – 179. PER CLARA BATA OGUNBIYI, J.C.A
ELECTION PETITION: BURDEN OF PROOF AND STANDARD OF PROOF IN ELECTION PETITIONS
It is trite law that the general standard of proof in election petition cases like in civil claims is on the balance of probability. It is also elementary to state that the burden of proof lie on the Petitioners whose duty it is to adduce evidence for purpose of tilting the scale of justice in their favour. In other words, where the Petitioner alleges, and fails to satisfy the burden of proof, he would not be entitled to judgment in his favour.Securing judgment pre-supposes that the justice of the case is given to the party in whose favour it is declared. Credibility therefore ensures reliability without which no cognizance would be taken thereof. A witness who testifies by his senses of the existence of fact is worthy of recognition and proof. A hearsay witness however cannot testify to the existence, truth and veracity of a fact. For the just determination of a case therefore the proof is not dependant upon the number of witnesses but rather the credibility thereof. In other words, the evidence of such one witness will stand toll and weighty as against multiple witnesses whose evidence is to the contrary. The apex court for instance in the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) page 1 at pages 122 and 193. “In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of the evidence, result in the court giving judgment in favour of the party Allegations questioning the propriety of elections verged on criminal acts must be proved beyond reasonable doubt. Nwobodo v. Onoh (1984) 1 S.C.N.L.R. I referred to.” Sections 135 and 138 of the Evidence Act are also in point and relevant. PER CLARA BATA OGUNBIYI, J.C.A
PLEADINGS: ESSENCE OF THE PLEADINGS OF THE PARTIES
From the…authority of the case of Buhari v. Obasanjo, it is apt that the place of pleadings is very significant in the proof of an alleged existence of a particular fact. In order to determine the issue raised therefore, recourse must be had to the pleadings of parties and which had formed the grounding anchoring reasoning’s behind the findings arrived of by the learned Tribunal. PER CLARA BATA OGUNBIYI, J.C.A
ELECTION PETITION: WAYS BY WHICH A PETITIONER CAN DISCHARGE THE BURDEN OF PROVING HIS CLAIMS OR RELIEFS
I have said earlier in the course of this judgment that the plaintiff /petitioner has the burden of proving his claims or reliefs set out on his pleadings; the proof which could either be by evidence through witnesses, documentary evidence or even on the pleadings of the parties. PER CLARA BATA OGUNBIYI, J.C.A
ADMISSION/ADMITTED FACTS: WHETHER FACTS ADMITTED IN PLEADINGS NEED FURTHER PROOF
I hasten to say that the foregoing averment is very clear and unambiguous and not questionable in that it amounts to an admission. I also wish to state that proof is absolute on an admission and facts admitted need no proof as this is trite. No wonder the general principle applies that even in criminal trials, once on accused person admits to committing an offence, he could be convicted thereon based on his own admission which requires no further proof. This I hold is very reasonable because the Person admitting to a fact is the master of his mind and decision once made voluntarily and without either coercion or extraneous intervening circumstances. Significant to re-iterate that the 1st Respondent’s reply of page 134 of the record contained in the 1st volume was signed on his behalf by his learned counsel Mr. S.G. Odey Esq. It is correct to say therefore that all the averments in the said pleading were agreeable by the counsel inclusive of paragraph 14 sub-paragraph (vi) which admitted the situational circumstance of the non collation of the Dogon Agogo polling unit. This admission is documentary in nature and which cannot be controverted by oral evidence. Plethora of authorities avail wherein facts admitted in pleadings need no further proof . See for instance the case of Adeye v. Adesanya (2001) 6 NWLR (pt.708) 1 and Agbanelo v. Union Bank of Nigeria Ltd (2000) SC (Pt.1) page 233. PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. HON. PETER AKUJAH
2. PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. SULEIMAN Y. KWANDE
2. DEMOCRATIC PEOPLES PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment): On the 26th of April, 2011, the 3rd Respondent (INEC) conducted election into the Jos North/Bassa Federal Constituency into the House of representative where the 1st Petitioner, the 1st Respondent and others contested the election on the platform of their various political parties. At the conclusion of the election the 1st Respondent was declared and returned as the winner of the election with 163, 518 votes as against the 1st petitioner’s 163, 225 votes. The petitioners were dissatisfied with the declaration and return and therefore filed this amended petition of 46 paragraphs. The ground of the petition is stated in paragraph 13 of the petition thus:
“Your petitioners aver that the ground of this petition is that the 1st Respondent Hon. Peter Akujah, was not duly elected by majority of lawful votes cast at the election to the membership of the House of Representatives for the Jos North/Bassa Federal constituency, Plateau state held on the 26th of April, 2011.
And reliefs sought by the petitioners are:
“1. That the total lawful votes of the petitioners at the election to the membership of the House of Representatives for Jos North/Bassa Federal constituency of Plateau State held on Tuesday the 26th April, 2011 is 165,759 (one Hundred and Sixty Thousand Seven Hundred and Fifty Nine) votes whilst the lawful votes of the 1st Respondent, Hon. Peter Akujah of the Peoples Democratic Party, the 2nd Respondent is 159,518 (One Hundred and Fifty Nine Thousand Five Hundred and Eighteen votes.)
ii. That the 1st Respondent, Hon. Peter Akujah of the Peoples Democratic Party, 2nd Respondent, was not duly elected or returned as the member of the House of Representatives to represent Jos North/Bassa Federal Constituency of Plateau State not having polled the majority of the lawful votes cast at the election to the membership of the House of Representatives for Jos North/Bassa Federal Constituency of Plateau State held on Tuesday the 26th day of April, 2011.
iii. That the certificate of return given to the 1st Respondent Hon. Peter Akujah of the Peoples Democratic Party as the member of the House of Representative representing Jos North/Bassa Federal Constituency Plateau State is null and void and of no effect whatsoever.
iv. That by the lawful votes cast at the election to the membership of the House of Representatives for Jos North/Bassa Federal Constituency of Plateau State held on Tuesday the 26th of April 2011 the 1st petitioner Suleiman Y. Kwande ought to have been returned and should be returned as the duly elected member of the House of Representatives representing Jos North/Bassa Federal Constituency of Plateau State.
v. That the 3rd Respondent shall forthwith issue the 1st petitioner Suleiman Y. Kwande with a certificate of return as the duly elected member of the House of Representatives representing Jos North/Bassa Federal Constituency of Plateau State.”
After the Respondents were served with the Petition, they each filed their replies thereto and denied all the allegations therein and contended that the Petitioners are not entitled to any of the reliefs sought in the petition and urged the Tribunal to dismiss same.
At the pre-hearing conference paragraphs 31 – 65 and 31 – 60 of the replies to the petition of the 1st and 2nd Respondents respectively were struck out by the Tribunal on 28/6/2011. The 1st and 2nd Respondents were also directed to furnish the Petitioners with further and better particulars with respect to paragraph 15 of their respective replies as required in paragraph 5 of the Petitioners’ supporting affidavit to the application.
At the hearing of the petition, the Petitioners called 4 witnesses and tendered some documents in support of their case.
After the close of the petitioners’ case, the 1st and 2nd Respondents called one witness DW1, the 1st Respondent himself and tendered some documents in evidence of their defence. The 3rd Respondent also opened its defence and called only one witness as DW2, one Eleazar Yame Vwamhi.
This appeal therefore is against the judgment of the National and State Houses of Assembly Election Tribunal sitting in Jos and delivered on the 22nd of September, 2011. In the said judgment, the Honourable Tribunal upheld the petition and granted all the reliefs sought by the Petitioners-
The Appellants’ two notices and grounds of appeal were filed on the 8th October, 2011 and 12th October, 2011 at pages 1241 – 1253 also Pages 1265 – 1278 of the record of appeal respectively. The learned Appellants’ senior counsel Mr. O.I. Olorundare on the 14th November, 2011 applied to rely on the latter and therefore by implication abandoned the f ormer which same is hereby struck out. The record of appeal was transmitted to this Court on 17th October, 2011 and the Appellants’ brief dated 25th October, 2011 was filed within time on the 26th October, 2011. A reply brief was also dated 4th November but filed on 9th November, 2011. The learned senior counsel in arguing the appeal adopted and relied on the said briefs and expatiated on certain aspects in his arguments. Counsel in the result urged us to allow the appeal therefore.
The learned counsel Mr. E.R. Emukpoeruo represented the 1st and 2nd Respondents. Counsel adopted and relied on their brief of arguments dated 31st October, 2011 but filed on the 1st November, 2011. The learned counsel therefore intimated and sought to argue the notice of preliminary objection which is contained and embedded in the said Respondents’ brief of argument at pages 2 – 5 of the brief. Counsel argued that even though the objection was not raised timeously before the hearing of the appeal, same could still be taken of this stage since it is not procedural but that which touches on the jurisdiction of the court. Learned counsel therefore cited the authority in the case of Mallam Abubakar Abubakar v Said Usman Nasamu in SC/350/200 delivered on 9th November, 2011 Counsel further urged that the appeal be dismissed in its entirety and uphold the preliminary objection raised.
Also on behalf of the 3rd Respondent, their learned counsel Stephen Ibyem adopted and relied on their brief of argument doted 31st October, 2011 and filed the 1st November, 2011. Counsel on their behalf urged that the appeal allowed in the circumstance.
Submitting on the preliminary objection raised by the 1st and 2nd Respondents, the learned Appellants’ senior counsel Mr. Olorundare submitted same having been abandoned in the light of plethora of authorities.
The said appeal was heard only on the 14th November, 2011 and with the judgment appealed against having been delivered on the 22nd day of September, 2011, the life span of the appeal is expected to lost until 21st November, 2011. In view of the constraints of time on the Court therefore, it is expedient that the judgment be pronounced upon in accordance with Section 285(8) of the Constitution of the Federal Republic of Nigeria as amended, while the full reasoning’s for the judgment would be given of a later date.
As a preliminary to the determination of this appeal, I would briefly consider the effect of the preliminary objection raised by the 1st and 2nd Respondents which same on a plethora of decided authorities in the light of the circumstance is deemed abandoned for failure to timeously seek the leave of court to argue same. The case in point is Oforkire and other v. Maduike and 5 Others (2003) 5 NWLR (Pt. 812) 166 at 178 – 179. As a consequence and contrary to the argument by the learned 1st and 2nd Respondents, counsel therefore the issue raised does not relate to jurisdictional question but purely procedural and thus rendering the preliminary objection having been abandoned. I therefore so hold in the circumstance.
In their brief of arguments and from the eighteen grounds of appeal, the Appellants distilled fifteen issues for determination of the appeal which same reproduced are as follows:
“1. Did the Honourable Tribunal have the jurisdiction to hear and determine the Petition as it did, in the circumstances of this case? (GROUND 1)
2. Was the Honourable Tribunal right, when it heard and determined the 1st and 2nd Respondents’
Petition on the basis of the amended Petition? (Ground 2)
3. Was the 1st and 2nd Respondents’ witness, PW2, Al Amin Mohammed, a competent witness upon whose evidence the Honourable Tribunal could rely on to find that the election in Dogon Agogo Polling unit as contained in Exhibit A19 was free and fair, devoid of any electoral malpractice, irregularity or violence? (GROUND 7).
4. Did the refusal of the Honourable Tribunal to sign the subpoenas applied for by the Appellants deny the Appellants their right to fair hearing in this matter? (GROUND 15)
5. Whether the learned tribunal was right in holding that its Ruling of 28th June, 2011 affected paragraphs 15 of the Appellants’ Replies. (Ground 4)
6. Whether the learned tribunal was right in holding that because the 1st and 2nd Respondent did not complain specifically about the happenings in Ndu Street and Ayeni Street II polling units, the appellants are precluded from objecting to the votes of the petitioners in those units. (GROUND 3)
7. Whether the learned tribunal was right to have held that Exhibits B1, B2, B3 and B4 were dumped on the tribunal without any witness explaining their purpose. (GROUND 9).
8. Whether in the face of Exhibit A19 the learned tribunal was right in finding that the 1st and 2nd Respondents through PW2 gave unchallenged and uncontroverted evidence that the election in Dogon
Agogo polling unit was devoid of violence, malpractices or any of her form of irregularity”
(GROUNDS 10 & 12).
9. Whether, having deprived the appellants the opportunity of proving that the election in Dogon Agogo polling unit was fraught with violence and malpractices, the learned tribunal was right in collating the purported results for the unit on the ground that the election in the unit was devoid of electoral malpractices, irregularity or violence.
(GROUND 16)
10. Was the Honourable Tribunal right when having rejected the evidence of PW1 and PW4 as hearsay evidence, it turned round and used the same inadmissible evidence as the basis for the identification of exhibits A19 and A20, which exhibits it used in finding that the votes for Dogon Agogo polling unit were not collated. (Ground 11 & 17)
11. Was the Tribunal right when it rejected the statements of the police officers on the grounds that:
(a) They were not from the custody of the Divisional Police Officer (DPO).
(b) There was no pleading that the two Police Officers made those statements with respect to a case reported to the DPO pertaining to what took place at the election; and
(c) The statements were mere depositions which should have been filed along with the reply (GROUND 13)
12. Whether the appellants were not denied fair hearing when the Honourable Tribunal suo motu raised the issue of custody of the statements of the two police officers and Proceeded to resolve same against the appellants without hearing the appellants on the said issues. (GROUND 14)
13. Whether the Honourable Tribunal did not descend into the arena of conflict, which it supplied evidence or embarked upon extraneous rationalizations in admitting Exhibit A19. (GROUND 5)
14. Whether the Honourable Tribunal was right in admitting Exhibit A19 without more, when the said Exhibit did not correspond to or answer to what was pleaded (GROUND 8).
15. Whether the Honourable Tribunal was right in holding that the Appellants failed to prove non-accreditation in Ayeni II polling unit, in spite of Exhibit B3 which content clearly proves the contrary. (GROUND 6). ”
The 1st and 2nd Respondents also predicated their arguments on fifteen issues which have been formulated from the said grounds of appeal. The 3rd Respondents further and in the same vein followed the other parties and agued on the fifteen issues raised.
Briefly and for the determination of this appeal I would consider the crux of the question squarely zeroing on whether or not the 1st Petitioner now 1st Respondent scored the majority of lawful votes cast of the election. It is trite law that the general standard of proof in election petition cases like in civil claims is on the balance of probability. It is also elementary to state that the burden of proof lie on the Petitioners whose duty it is to adduce evidence for purpose of tilting the scale of justice in their favour. In other words, where the Petitioner alleges, and fails to satisfy the burden of proof, he would not be entitled to judgment in his favour.Securing judgment pre-supposes that the justice of the case is given to the party in whose favour it is declared. Credibility therefore ensures reliability without which no cognizance would be taken thereof. A witness who testifies by his senses of the existence of fact is worthy of recognition and proof. A hearsay witness however cannot testify to the existence, truth and veracity of a fact.
For the just determination of a case therefore the proof is not dependant upon the number of witnesses but rather the credibility thereof.
In other words, the evidence of such one witness will stand toll and weighty as against multiple witnesses whose evidence is to the contrary. The apex court for instance in the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) page 1 at pages 122 and 193.
“In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of the evidence, result in the court giving judgment in favour of the party Allegations questioning the propriety of elections verged on criminal acts must be proved beyond reasonable doubt. Nwobodo v. Onoh (1984) 1 S.C.N.L.R. I referred to.”
Sections 135 and 138 of the Evidence Act are also in point and relevant.
From the foregoing authority of the case of Buhari v. Obasanjo, it is apt that the place of pleadings is very significant in the proof of an alleged existence of a particular fact.
In order to determine the issue raised therefore, recourse must be had to the pleadings of parties and which had formed the grounding anchoring reasoning’s behind the findings arrived of by the learned Tribunal. In the pleadings of the parties for instance, the Petitioners broadly complained of votes scored in their favour but were wrongly credited to Labour Party. This specifically relates to Isyaka Gwanma polling unit Code 027 for instance where the Petitioners alleged to have scored votes on form EC8A(1) but that same were not collated in their favour at Word and Local Government Collation levels.
The bone of disagreement is Dogon Agogo polling unit Code 022 where the petitioners alleged to have scored 751 votes but were wrongly excluded from Word and Local Government levels collation. The evidence of PW2, Al-Amin Muhammed is relevant wherein he said he was the 2nd Petitioners’ party agent at Dogon Agogo polling unit Code 022. The witness testified that the election at the unit was conducted peacefully and that there was neither irregularity nor was there a collective decision taken to exclude the result of the unit from the election. The said witness was not cross examined on his evidence by any of the Respondents. At least there was no such indication on the record of appeal.
DW2 one Eleazar Yame Vwamhi was the 3rd Respondents witness. He was the collation officer f or Jos North Local Government. He also testified that all lawful votes cast at the election were pro1erly collated and that no candidate was unlawfully credited with votes and that no vote of any candidate was wrongly excluded from collation. Furthermore, that votes scored by candidates of the election were correctly summed by him.
Under cross examination, the said witness testified and confirmed that he signed the Form EC8C(I) for Jos North L.G.A and wrote his initials on the deposition he adopted The witness was shown Exhibit B3 and he affirmed the ticking in it.
On behalf of the Appellants as Respondents of the trial Tribunal, both their counsel and that of INEC urged that the evidence of PW1, PW2, and PW3 should all be rendered as hearsay and therefore inadmissible.
Recourse must also be had to the findings by the Tribunal relating the evidence of the petitioners’ witnesses especially that of PW1 with regards to Garba Daho Ward 03 in Jos North Local Government Area and Ndu Street and Ayeni Street II polling units. The cumulative evidence of PW1 on these behalf was held by the Tribunal as mere hearsay. The evidence of PW3 for purpose of Respondents proving their petition of paragraphs 26 – 41 was also held as unreliable. PW4 was also declared an incompetent witness in respect of his evidence as to the happenings in polling units and words collation centres in Bassa Local Government Area.
I have said earlier in the course of this judgment that the plaintiff /petitioner has the burden of proving his claims or reliefs set out on his pleadings; the proof which could either be by evidence through witnesses, documentary evidence or even on the pleadings of the parties. In this course, and with reference to the pleadings of all parties in the matter at hand, the averments, even in the absence of oral evidence speak volumes.
For instance, the trial Tribunal’s main thrust of reliance was the pleadings.
It is pertinent to hold therefore, that oral and or documentary evidence were not the only deciding yard stick or factors of the conclusions arrived at by the learned Tribunal. This can easily be gleaned from the record of appeal. In other words, recourse and heavy reliance was made on the pleadings of parties which had formed a firm foundation or the nucleus reliance.
The significance of pleading is of great focus in the case at hand wherein Dogon Agogo serves the central deciding factor of the petition at the trial Tribunal. The relevant paragraphs pertaining to the said polling unit and as spelt out by the various parties would be reproduced for clear understanding and appreciation of that which is involved.
At paragraphs 20, 21 and 22 of the Petitioners’ petition at the trial Tribunal they averred as follows:
“20. Your petitioners aver that the unit result on Form EC8A(i) for Dogon Agogo polling unit Code 022 Ibrahim Katsina ward code 05 Jos North Local Government area was not collated into the ward or Local Government result sheet. In this unit the Petitioners scored 751 (Seven Hundred and Fifty one) votes but these votes were wrongly excluded from collation into the ward and Local Government result sheets.
21. Further to paragraph 20 the Petitioners aver that the elections for the membership of the National Assembly (Senate and House of Representatives), the election for the membership of the State House of Assembly and the election to the office of Governor of Plateau Sate were all conducted on the same 26th April 2011 in one electoral process with duly accredited voters on the voting queue being issued with ballot papers, one for each of the aforesaid elections. It was in the cause of this single electoral process that 751 (Seven Hundred and Fifty one) votes were duly cast for the Petitioners.
22. However, while the unit results for the Dogon Agogo polling unit code 022 Ibrahin Katsina Ward Code 05 Jos North Local Government Area for the House of Assembly and the gubernatorial elections conducted jointly with the election to the House of Representative were duly collated in the ward and Local Government result sheets, the unit result for the House of Representative in which your petitioners scored 751 (Seven Hundred and Fifty One) lawful votes was wrongly excluded from collation into the ward and Local Government result sheets. The petitioners plead and shall found on the duplicate original of the unit result aforesaid.
The ward level result sheets for the gubernatorial and House of Assembly election and the ballot papers for the unit to show that 751 (Seven Hundred and Fifty one) votes were cast for them.”
Responding to the said foregoing averment the 1st and 2nd Respondents in their reply had the following to say at paragraph 14 of their respective replies:
“14. Paragraphs 20, 21 and 22 of the petition are denied and petitioners are put to the strictest proof thereof. The 1st Respondent reproduced in relation to Dogon Agogo polling unit code 022 of Ibrahim Katsina ward code 05 of Jos North L.G.A. as follows:
“i. Voting commenced after the close of accreditation. At the end of voting, 200 ballot papers remained unused.
ii. Thereafter, agents and supporters of the petitioners approached the Police Officer on duty at the unit, seeking his “co-operation” so that the unused ballot papers would be thumb printed in their favour.
iii. The Police Officer refused and instructed the presiding officer and polling clerk of the unit to gather the unused ballot papers.
However, the said agent said supporters of the petitioners overpowered the officials of the 3rd Respondent and the Police Officers at the unit and proceeded to thumb print the remaining ballot papers.
iv. Thereafter, the said agents and supporters of the petitioners threatened to kill the police officers at the unit if they prevented the thumb printed ballot papers from being counted and incorporated in the results. Indeed, the police officers on duty at the unit were attacked and they ran away, narrowly escaping being killed. In the absence of the police officers the agents and supporters of the petitioners coerced the electoral officials into doing their bidding. CTC’s of the said police officer’s statements are Pleaded.
v. The foregoing was reported to the ward collation officer and agent of the contesting political parties present of the ward collation centre, who collectively took the decision to exclude the purported results emanating from the Polling unit.
vi. Thereafter, the ward results were collated without the Dogon Agogo polling unit result which was tainted with the 200 thumb printed ballot papers. The agents of the contesting political parties present at the ward collation centre, in signifying their assent, signed the ward collated results without any protest whatsoever. Form EC8B(i) for Ibrahim Katsina Ward Code 05 is hereby pleaded and notice is given to the 3rd Respondent to produce same.”
The 3rd Respondent in its reply to the averments of the Petitioners on their behalf also averred thus at paragraphs 10 and 11 of its reply:
“10. In answer to paragraphs 20 and 21 of the petition, the 3rd respondent avers that 751 (Seven hundred and fifty one) votes were scored by the petitioners in Dogon Agogo polling unit code 022 of Ibrahim Katsina Ward, but denies that these votes were wrongly excluded from collation into the ward and local government result sheets. It is true that the elections into the National Assembly, State House of Assembly and office of Governor plateau State were all conducted on 26th April 2011 in one electoral process.
11. In answer to paragraph 22 of the petition, the 3rd respondent states that votes cast for all parties at Dogon Agogo polling unit in respect of all the elections that took place on 26th April 2011 were duly collated on the ward and local government result sheets. The allegation by the petitioners that their score of 751 (Seven hundred and fifty one) votes in the House of Representatives Election was wrongly excluded from collation with the ward and Local Government results sheets is denied. ”
Furthermore and in answer to paragraph 14 of the Reply of the 1st and 2nd Respondents’ the Petitioner averred in paragraph 2 of their reply as follows:
“i. No agent or supporter of the petitioners approached the police officer on duty to thumb print unused ballot papers as alleged.
ii. The whole events narrated by the 2nd Respondent in paragraph 14 of its Reply are a complete fabrication and bereft of any factual foundation.
iii. No agent or supporter of the petitioners attempted to overpower or overpowered any official of the 3rd Respondent or the police.
iv. No agent or supporter of the petitioner thumb printed any unused ballot Papers as alleged by the 2nd Respondent or at all.
v. No agent or supporter of the petitioners threatened to kill any police or Person. No police officer was attacked and none ran away from the polling unit at all or as alleged by the 2nd respondent.
vi. No thumb printed unused ballot paper was stuffed into the ballot box of the Dogon Agogo polling unit code 022 Ibrahim Katsina to be PDP thugs to stuff the ballot box was thwarted by the police, whose off ice was near the polling unit. No agent or supporter of the Petitioners’ coerced any elected official into doing anything illegal.
vii. The Presiding Officer for Dogon Agogo Polling Unit Code 022 Ibrahin Katsina Ward 5 duly entered the lawful votes cast by duly accredited voters in the course of a due electoral Process info the
Form EC8A(i) for the unit and duly signed it. No collective decision was taken to exclude the result of this unit from collation at all or as alleged by the 2nd respondent in its reply.
viii. No lawful (sic) vote whatsoever was included or incorporated into the votes duly cast by duly accredited voters in Dogon Agogo Polling Unit Code 022 Ibrahim Katsina Ward 05.”
From the foregoing pleadings, significant reference point is hereby revealed therein between those of the 1st and 2nd Respondents on one hand and that of the 3rd Respondent on the other. In other words, the two pleadings portray a very serious conflict of facts. With specific attention also to subparagraph 14(1) of the 1st and 2nd Respondents reply to the petition, same clearly amounts to an admission. I shall return to this subparagraph in due course.
At pages 1232 – 1235, for instance, certain excerpts of the Tribunal’s findings are very expressive and fact revealing wherein it said:
“while the 1st and 2nd respondents admitted that the polling unit result of Dogon Agogo was not collated into the ward result because of violence and malpractices involved in the conduct of the election, the 3rd respondent who conducted the election mentioned no occurrence of violence and malpractices and asserted that the result of election of the polling unit was duly collated info the ward and Local Government collation levels.
The petitioners in their reply to the 1st and 2nd respondents’ replies asserted that the election of the polling unit was free and fair divorce of any violence or malpractice and result produced from the election as can be seen in the paragraph of their reply quoted above.
They called PW2 in support of the averments and the witness was not even cross-examined as to those facts he gave evidence on.
Thus from the evidence of PW 2 which remains uncontradicted and uncontroverted, the respondents can no longer complain about violence, malpractices or any other form of irregularity in the conduct of the election at Dogon Agogo Polling unit. Afterall DW1 said he was not at Dogon Agogo polling unit at any time under cross examination. We saw and observed PW2 when he adopted his witness deposition and consider him to be a witness of truth and accept his evidence.
Now on the issues of the collation of the polling unit result. The 1st and 2nd respondents unequivocally admitted that the result of the polling unit was not collated into the ward result in line with the pleadings of the petitioners. That fact therefore requires no further proof as it affects the 1st and 2nd Respondents.
On the claim of the 3rd Respondent that the result of Dogon Agogo polling unit was collated at the ward and Local Government levels, if is amusing to note that as custodians of the Electoral documents it failed to show where the result of the polling unit was collated. Incidentally the petitioners tendered the documents they were able to secure from the 3rd Respondent as Exhibits A19 and A20, the polling unit result and ward collation result respectively, duly certified by the 3rd respondent” PW1 was shown the exhibits and he identified Exhibit A19 as the result of Dogon Agogo polling unit and Exhibit A20 as the Ibrahim Katsina ward collation result in which the result in exhibit A 19 was excluded. PW4 too identified Exhibit A19 as the result of Dogon Agogo polling unit even under cross examination by learned counsel to 1st and 2nd respondents. The 3rd respondent neglected to even cross examine the witnesses on exhibits A19 and A20. We equally had a look at Exhibits A19 and A20 and confirm that the result in exhibit A19 was not collated info Exhibit A20 as rightly admitted by the 1st and 2nd Respondents. It is sad to note that the 3rd Respondent called the Returning officer for Jos North Local Government who testified as PW2 but refused to fender the result which he said he collated and signed in Form EC8C(i). We still repeat, the 3rd respondent as the custodian of the electoral documents and the supposed neutral umpire withheld the documents without any explanation. Yet counsel for the 3rd respondent vehemently addressed the court on the doctrine of presumption of regularity of INEC results. That presumption could only avail the 3rd respondent if it had produced the results. In our view from the circumstances of this case and the conduct of the 3rd respondent the presumption is that if the documents are produced, they would be unfavourable to the 3rd respondent. The result if produced will certainly show that the Dogon Agogo polling unit result was not collated. In the absence of any evidence to place on the side of the 3rd respondent’s imaginary scale we hold that on the balance of probability, the content ion of the 3rd respondent that the result of election of Dogon Agogo polling unit was collated was not established. Rather the petitioners have established with certainly through the admission of the 1st and 2nd respondents and exhibit A20 that the result was excluded from collation.”
From the findings of the Tribunal, it is clear that bounty and conflicting facts are apparent between the pleadings of the 1st and 2nd Respondents at the Tribunal on one hand and that of the 3rd Respondent (INEC) on the other. This is as well spelt out in the Tribunal’s findings reproduced (supra).
Furthermore and on the subparagraph 14(vi) which was deferred (supra), the said subparagraph even on the risk of repetition, I would again reproduce wherein the 1st and 2nd Respondents in their reply to the Petitioners said amongst others:
“vi. Thereafter, the ward results were collated without the Dogon Agogo polling unit result which was tainted with the 200 thumb printed ballot papers. (emphasis is mine)
I hasten to say that the foregoing averment is very clear and unambiguous and not questionable in that it amounts to an admission. I also wish to state that proof is absolute on an admission and facts admitted need no proof as this is trite. No wonder the general principle applies that even in criminal trials, once on accused person admits to committing an offence, he could be convicted thereon based on his own admission which requires no further proof. This I hold is very reasonable because the Person admitting to a fact is the master of his mind and decision once made voluntarily and without either coercion or extraneous intervening circumstances.
Significant to re-iterate that the 1st Respondent’s reply of page 134 of the record contained in the 1st volume was signed on his behalf by his learned counsel Mr. S.G. Odey Esq. It is correct to say therefore that all the averments in the said pleading were agreeable by the counsel inclusive of paragraph 14 sub-paragraph (vi) which admitted the situational circumstance of the non collation of the Dogon Agogo polling unit. This admission is documentary in nature and which cannot be controverted by oral evidence. Plethora of authorities avail wherein facts admitted in pleadings need no further proof . See for instance the case of Adeye v. Adesanya (2001) 6 NWLR (pt.708) 1 and Agbanelo v. Union Bank of Nigeria Ltd (2000) SC (Pt.1) page 233.
The witness PW2 also was accredited as credible witness in his evidence relating Dogon Agogo polling unit wherein he testified to the absence of any violence, malpractice or any form of irregularity in the conduct of the election. The Respondents then, now Appellants before us, did nor see it significant to cross examine the said witness PW2. They cannot now be heard to complain about such malpractices and or irregularities. In the case of Gaji v. Faye (2005) 5 SC- 20 at 35, the apex Court said:
“Failure to cross-examine a witness over particular fact or matter is a clear acceptance of the truth of the evidence of that witness on the particular fact.”
It is therefore obvious that election was certainly held in Dogon Agogo polling unit and some was free and fair.
However and that notwithstanding, I have carefully examined Exhibits A19 and A20 which were admitted by the trial Tribunal. Exhibit A19 specifically is in respect of Dogo Agogo polling unit and the parties who participated therein the disputed election were DPP, LP, APGA, CPC, and ACN. There is no where the Appellants’ party Peoples Democratic Party (PDP) is included. In my deduction if the said polling unit was a central issue of controversy, certainly the Appellants’ party must have been one of the parties who participated in the election. This was clearly confirmed by the learned tribunal’s findings and conclusion arrived at page 1235 of the record wherein it said “The 1st respondent having scored no vote from Dogo Agogo polling unit will maintain his, 518 lawful votes at the election.” The learned Tribunal thereafter proceeded and added 751 votes to that of the 1st Petitioner now 1st Respondent being the votes the votes lawfully accredited to him and which were excluded from Dogo Agogo polling unit. I hasten to say that if the 1st Appellant as rightly found by the Tribunal did participate in the election and scored no vote, that piece of evidence ought to have reflected on Exhibit A19 which bears the result of the Dogon Agogo polling unit and should therefore also reflect “no votes” against the 1st Appellant’s party. This is not the situation with the case of hand” The Tribunal no doubt has done a very good job of the evaluation of the evidence before it. However I would state categorically and emphatically, that the failure to consider the 1st Appellant’s candidature especially his party having been left out from Exhibit A19 and without any explanation whatsoever, leaves very much to be desired. If the learned tribunal could observe that Exhibit A19 was not collated into Exhibit A20, they also ought to have gone a step further to ensure whether the 1st Appellant was represented by his party being a candidate at the said election held at Dogon Agogo word unit which is in great controversy. The Petitioner/1st Respondent did not adduce any evidence to show that the 1st Appellant was not a candidate of the contested Dogon Agogo polling unit. At least there ought to have been that confirmation on the record which serves as binding on all parties and the Court for the determination of this appeal. The significance of the record cannot be overtaken because the court has no mandate to go outside same.
In the absence of such evidence, it is interesting to find out how the learned Tribunal arrived at the “zero vote” allotted the 1st Appellant? Be that as it may, a further related remark to make is even if the 1st Appellant, taking for granted, was to be scored “zero vote”, there ought to have been reflection of such scoring against his party as it is the case with the other polling units.
Examples are at pages 228, 229, 231, 233, 234 and 236 of the record of appeal volume I wherein party names are clearly all stated and votes Scored are either “specified number”, “Nil”, “O”, or bear on indication of a ” – ” remark. The some should have been born out in respect of the Appellants’ party on Exhibit A19 Suffice to say therefore that the findings by the learned Tribunal logical as it may sound, has left out very much undone. The issue of Exhibit A19 and the scoring of “no vote” by the 1st Appellant which indication is absent from Exhibit A19 to my mind is sufficient to resolve the appeal in favour of the Appellant and the reason which I hold that a re-run election in the Dogon Agogo polling unit would be the just, proper and equitable drawing line between the parties. In other words it is my considered opinion that the justice of this case would best be served that a re-run election be conducted in the said Dogon Agogo polling unit.
In the result, I therefore allow the appeal and set aside the orders made in the judgment by the learned Tribunal on the 22nd September, 2011.
In its place, I make the following orders:
1. That the 1st Appellant Hon. Peter Akujah of the Peoples Democratic Party, 2nd, Appellant was not duly elected or returned as the member of the House of Representatives for Jos North/Bassa Federal Constituency of Plateau State.
2. That the certificate of return issued to the 1st Appellant Hon. Peter Akujah of the PDP as member of House of Representatives for Jos North/Bassa Federal Constituency of Plateau State is hereby declared as null and void and therefore withdrawn.
3. That an order is hereby made on Independent National Electoral Commission (INEC) to conduct a rerun election in the Dogon Agogo polling unit within 90 days from today.
4. Appeal allowed per the orders made above and no order as to costs
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother CLARA BATA OGUNBIYI, JCA. and I am in full agreement with the reasoning and conclusions therein.
I too allow the appeal and set aside the orders made in the judgment of the Learned Tribunal on the 22nd day of September, 2011.
I abide by all the orders made and also the order as to cost.
Appearances
O.I. Olorundare, SAN with S.T. Ologunorisa, S.G. Odey, Polycap Al’mint, D.P. Dusu, V.Y. Kwon and J.Y. GyangFor Appellant
AND
Stephen ibyem, E.R. Emukpoeruo and C.O. OguehiFor Respondent
