IGBOKWE PATRICK IKE & Anor v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & Ors
(2010)LCN/3981(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of July, 2010
CA/E/EPT/19/2007
RATIO
JURISDICTION: IMPORTANCE OF THE ISSUE OF JURISDICTION IN ANY PROCEEDINGS
The importance of jurisdiction in any proceedings can not be over emphasized. This is because it touches on the competence of the court to adjudicate on the matter in its entirety. Thus, once there is defect in the competence of a court to inquire into or determine a matter, suit or appeal, all the proceedings held by that court on the particular case in question will amount to a nullity no matter how well it was conducted or decided. PER AMIRU SANUSI, J.C.A
JURISDICTION: MEANING OF “JURISDICTION”
…jurisdiction simply means the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way before it and for it to decide or determine. If there is no restriction or limitation imposed on it by the statute that accords jurisdiction to it to determine or inquire into such matter, then it is said that the court has unlimited jurisdiction. The limitation I am talking about, may either be as to the kind or nature of the actions and matters which the particular court has cognizance or as to the area over which jurisdiction extends or it may partake of both characters. PER AMIRU SANUSI, J.C.A
JURISDICTION: FACTORS THAT WILL BE CONSIDERED IN DETERMINING WHETHER OR NOT A COURT HAS JURISDICTION TO ENTERTAIN A MATTER
In order to determine whether or not a court has jurisdiction to entertain a matter, the court is to consider the followings – a) Whether the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents it from exercising its jurisdiction; and b) Whether the case has been initiated before the court by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. PER AMIRU SANUSI, J.C.A
ISSUE FOR DETERMINATION: WHETHER ALL ISSUE FORMULATED FOR DETERMINATION IN AN APPEAL MUST FLOW FROM A COMPETENT GROUND OR GROUNDS OF APPEAL
It is trite and settled law that all issue formulated for determination must flow from a competent ground or grounds of appeal. PER AMIRU SANUSI, J.C.A
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
A.O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. IGBOKWE PATRICK IKE
2. ACTION CONGRESS Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. THE RESIDENT ELECTORAL COMMISSIONER, EBONYI STATE
3. THE RETURNING OFFICER ISHIELU LOCAL GOVERNMENT AREA
4. ENGR. EDEH GABRIEL
5. THE PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
AMIRU SANUSI, J.C.A (Delivering the Leading Judgment):The first appellant herein, was a petitioner at the National Assembly Governorship and Legislative Houses Election Tribunal, Abakaliki, Ebonyi State (The Tribunal for short), wherein he petitioned against the respondents herein. He contested the election into the State House of Assembly membership in Ishielu South Constituency on the platform of his party, the Action Congress, which is the second petitioner now second appellant. The first respondent, INEC, was the statutory body that conducted the said election which was held on 14th April 2007 while the 2nd and 3rd respondents were its official who assisted it in the conduct of the said election. The 4th respondent herein was one of the candidates who also contested the said election in the same constituency with the 1st petitioner/appellant, but he contested the said election on the sponsorship of his party, the Peoples Democratic Party (PDP) who is also the 5th respondent herein. The fourth respondent was the candidate who was returned and declared winner of the said election by the 1st respondent, INEC at the end of the election. It is that return and declaration by the 1st respondent that vexed the two petitioners/appellants which led to their filing the petition before the tribunal.
At the tribunal, the two petitioners (now appellants) challenged the election of the 4th respondent alleging that there were corrupt practices, malpractices, irregularities in the conduct of the election and noncompliance with the provisions of Electoral Act 2006. During the trial the petitioners called seven witnesses to prove their case and tendered some exhibits. The 4th respondent testified in defence of his election and tendered the result of the election as Exhibit 17 and called two other witnesses. At the end of the proceedings, the tribunal dismissed the petition in its judgment delivered on 17th of September 2007 on the grounds that the petitioners failed to adduce sufficient evidence in proof of their petition and also for their inability to make a prima facie case at the trial.
Aggrieved by the dismissal of their petition, the two petitioners appealed to this court and thus filed a Notice of Appeal dated 5th October 2007 but later regularized it with leave of this court granted on 29th June 2009. Sequel to that and in keeping with the practice applicable in this court, parties filed and exchanged their respective briefs of Argument. The appellants filed their joint Brief of Argument dated 30/4/2008. They also in response to a Notice of Preliminary Objection raised in the 1st to 3rd respondents’ Brief of Argument and also in the 4th Respondent’s Brief of Argument, filed Appellants’ Reply Brief of Argument on 28/5/2010 dated 25th May 2010. In the Appellants’ Brief of Argument two issues were proposed for the determination of the appeal which are thus:
(a) Was the tribunal below right in deciding the petition as if the respondents made a no case submission when in fact no such submission was made and without considering the respondents case?
(b) Was the tribunal right when it did not disbelieve the petitioner and his witnesses on the allegation that INEC in collaboration with the 4th respondent and PDP members thumb-printed ballot papers purporting that voters did the thumb-printing.
The 1st to 3rd respondents’ Joint Brief of Argument dated 3/7/2009 was filed on 29/1/09 but deemed properly filed and served on 22/4/2010 and therein, two issues were also formulated for the determination of the appeal which read as below :-
(1) Whether the Petitioners did not make out prima facie case at the trial.
(2) Whether the Petitioners did not adduce enough evidence to substantially prove the alleged malpractice and non-compliance with the Electoral Act, 2006 to warrant dismissal of the petition.
The fourth respondent in his Brief of Argument dated and filed on 3/7/2009 but deemed filed on 29/7/09 only one issue was raised for the determination of the appeal which lone issue reads –
“Whether the lower tribunal was justified on the evidence and pleadings placed before it to dismiss the Petitioners’ case as unproven”
The fifth Respondent in its two paged Brief of Argument dated and filed on 6/7/2009 simply adopted the issue for determination formulated in the Brief of the 4th Respondent.
As highlighted above, the 1st to 3rd Respondents and 4th Respondent filed Notice of Preliminary Objection and raised and argued them in their respective Briefs of Argument. The Preliminary Objections will be considered first before considering the main appeal in compliance with the procedure approved by this court and the apex court too that preliminary points raised should be resolved first before treating the main appeal. I shall start with the Preliminary Objection raised in the 4th Respondent’s brief as it was adopted and argued first when the appeal was heard by us on the 7th day of June 2010 before the one filed by the 1st to 3rd Respondents’ counsel.
In his Notice of Preliminary Objection, the learned Senior Advocate for the 4th Respondent queried the propriety of Issue A raised and argued in the Appellants brief of argument at paragraph 10 on page 3 of the said brief.
The said issue reads thus –
“Was the tribunal below right in deciding the petition as if the respondents made a no case submission when in fact no such submission was made and without considering the respondent’s case”
The main grouse of the learned counsel’s objection is that there was no ground of appeal filed by the appellant from where such issue can be said to have been lifted dealing with or concerning “No case submission” and also no ground of appeal complaining about none consideration of the Respondent’s case. The learned silk argued that for an issue to be valid and subsisting, it must relate to a valid ground or grounds of appeal and where an issue is not so distillable from competent ground or grounds of appeal, such an issue is ipso facto rendered incompetent and liable to be struck out. He further argued that all arguments and submissions advanced on an incompetent issue are rendered incompetent and ought to be struck out. He placed reliance on the decision of Ibator vs Barakuro (2007) 9 NWLR (Pt.1040) 4755; Dairo vs UBN Plc (2007) 16 NWLR (Pt 1059) 99.
In his response to above submission on the Preliminary Objection, the learned senior advocate for the appellant submitted that the said issue being challenged by the 4th Respondent’s senior counsel relates to issue of jurisdiction which can be raised at any time even without leave. He said although he conceded that fresh issues can only be raised on appeal with leave of court, such rule has an exception which is, in a situation where such fresh issue relates to jurisdiction which according to him, can be raised at any stage for the first time even without leave. See Shekete vs NAF (2007) 14 NWLR (Pt 1053) 159 at 195 paragraph E. He further argued that jurisdiction is the life-wire of a court as no court can entertain a matter where it lacks jurisdiction. Relying on the Supreme Court’s case of Dairo vs UBA Plc (2007) 16 NWLR (Pt 1059) 99 at 130, he said a court is under a duty to consider the points of objection raised by the respondent as a challenge to the jurisdiction of the court even though the appellant filed no Reply brief which tantamount to concession. He said once raised, an issue of jurisdiction must be heard as substantial justice can not be done unless courts ensure that issue of jurisdiction where raised, is heard and determined on the merit.
The learned appellant’s counsel further argued that his arguments and submissions contained on pages 3 and 4, paragraphs 11, 12 and 13 of his Brief of Argument and Issue (A) were based on Ground D of his Notice of Appeal, hence the objection of the respondents is misconceived. He said from the particulars of error of Ground D in his Notice of Appeal it is evident that it is based on duty of court to do justice to all parties before it and the lower court failed to fulfill the obligation placed on it by law in the process of coming to a decision in the case. He said justice has not been given to all parties if evidence has not been put in imaginary scale. He finally submitted that the 4th Respondent did not show how he was prejudiced or the miscarriage of justice occasioned them. The learned silk urged us to dismiss the objection.
As rightly submitted by the learned senior counsel for the appellants, any party who is desirous of raising fresh issue on appeal, he must seek and obtain the leave of the appellate court. The only exception to this general principle of law is where such fresh issue intended to be raised touches on issue of jurisdiction. If any issue not touching on or related to jurisdiction is raised without leave of an appellate court, such issue must be discountenanced. But if the fresh point/issue is on jurisdiction it can properly be filed and argued with or without leave of the court See Obiokar vs State (2002) 10 NWLR (Pt 776). Gaji vs Paye (2003) 8 NWLR (Pt.823) 583; Michael vs Yuosuo (2004) 15 NWLR (Pt 895) 90 at 103. By exempting issue or point on jurisdiction from seeking and obtaining leave before being raised is a recognition of the importance, radical and fundamental nature of jurisdiction in any matter or proceeding, hence all superior courts of record are agreed that it can be raised at any stage of proceeding for the first time even at the Supreme Court. The importance of jurisdiction in any proceedings can not be over emphasized. This is because it touches on the competence of the court to adjudicate on the matter in its entirety. Thus, once there is defect in the competence of a court to inquire into or determine a matter, suit or appeal, all the proceedings held by that court on the particular case in question will amount to a nullity no matter how well it was conducted or decided. See Management Enterprises Limited vs Otusanya (1987) 2 NWLR (Pt.55) 179; Health Care Products Nigeria Limited vs Alhaji Musa Bazza (2004) 3 NWLR (Pt.861) 582; Elugbe vs Omokhafe (2004) 18 NWLR (Pt 905) 319 at 338. Onosode vs Made (1987) 4 SCNJ 86.
I think at this juncture, it will not be out of place if we consider the meaning of “jurisdiction and what it is all about. To my mind, jurisdiction simply means the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way before it and for it to decide or determine. If there is no restriction or limitation imposed on it by the statute that accords jurisdiction to it to determine or inquire into such matter, then it is said that the court has unlimited jurisdiction. The limitation I am talking about, may either be as to the kind or nature of the actions and matters which the particular court has cognizance or as to the area over which jurisdiction extends or it may partake of both characters. See Ndaeyo vs Ogunaya (1977) 1 SC 11. In order to determine whether or not a court has jurisdiction to entertain a matter, the court is to consider the followings –
a) Whether the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents it from exercising its jurisdiction; and
b) Whether the case has been initiated before the court by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction See Madukolu vs Nkemdilim (1962) 2 SCNLR 341.
Now, the question that remains to be answered is, can Issue A in the appellant’s brief be said to relate to issue of jurisdiction of the court? The learned senior advocate for the appellants complained in that issue the way or manner the tribunal decided or determined the petition as if a submission of ‘No Case to answer’ was made by the respondents, especially by its failure or refusal to consider the respondents’ case. From the meaning of the concept of jurisdiction which I gave above, I do not think the issue touches on the competence of the tribunal to try inquire or determine the matter before it. The tribunal’s alleged failure to consider the Respondents case in my view, had to do with wrong or improper evaluation of the evidence before it which could be said to have led to perversion in strict sense. It has no relevance to the competence of the tribunal to handle or determine the matter. Since the issue as I posited above, did not relate to issue of jurisdiction where leave is not necessary to obtain then it has to be lifted or must flow from a ground of appeal and prior leave must be sought and obtained. It is trite and settled law that all issue formulated for determination must flow from a competent ground or grounds of appeal.
See Ibator vs Barakuro (supra).
The learned senior counsel for the appellant in his Reply Brief submitted that Issue A in his Brief of Argument can be covered by Ground D in his Notice of Appeal, especially its particulars of error. For purpose of clarity and reference I shall reproduce the said ground of appeal and its sole particular and not particulars of error. It reads thus:-
GROUND – ERROR IN LAW AND MISDIRECTION
“The learned justices of the tribunal erred in law and were misdirected when they held that the petitioner’s petition hinges on three wards only when the failure of pools (sic) in other wards were done to the activities of the 1st – 3rd and 5th respondents in concert with 4th respondent.
PARTICULARS OF ERROR
It is the duty of the court to do justice to all parties before it.
Evidence of 1st petitioner and petitioners’ witnesses covered all the wards that make up the constituency”
A close look at this ground of appeal shows that there is nowhere issue of ‘No Case Submission’ was mentioned or referred to or alleged non consideration of the respondent’s case or evidence. No any inference was made therein, to the evidence or case(s) if the respondents or to failure on the part of the tribunal to consider the respondents case. The lone particular of error of the ground did not also fare better or insinuate or make inference on the respondent’s case(s) because it simply complained of evidence of the petitioner and their witnesses and not the respondents’ case or their evidence. There is, in my candid view, no how the sole particular of error can be said to have subsumed or to have even by extension, covered the case of the respondent. Particulars of error must always have bearing to the ground of appeal. Here the ground of appeal in question pertains to or pose a challenge on the tribunals finding on what transpired in the three wards and failure of polls due to the action or inaction of the first to third respondents and the 5th respondent due to alleged connivance with the 4th respondent. I therefore do not agree with appellant’s counsel submission that Issue A in his brief of argument is covered by or was lifted from Ground D in his Notice of Appeal. It is completely alien to the said ground of appeal. The said issue is therefore adjudged incompetent since it was not predicated on any of the grounds of appeal and also it is not at all related to issue of jurisdiction as portrayed by the learned silk for the appellants. I therefore accordingly strike out the said Issue A in the Appellant’s Brief of Argument and also strike out all arguments and submissions made in the said issue for being incompetent. The preliminary objection the 4th respondent is therefore well taken and is accordingly sustained but only on the ground that the said issue did not touch on issue of jurisdiction hence leave must be sought but was not so obtained. The second Preliminary Objection raised by the learned counsel for 1st to 3rd respondents, their learned counsel also challenged the competence of Paragraphs 6 and 10(9) of the Appellants’ Brief of Argument. I have while treating the objection by the 4th respondent dealt with the lack of necessity of seeking leave to raise issue or point of jurisdiction as contained in paragraph 6 in the Appellants Brief of Argument. The learned counsel for the 1st to 3rd respondents however raised a salient issue that the appellants as a matter of fact ought to have come by way of motion on notice in his desire to seek leave to raise fresh issue of jurisdiction adding that the appellants by not complying with the provisions of Order 7 Rule 1 of the Court of Appeal Rules, 2007 their prayer is incompetent. Generally, that is a laid down procedure applicable in every situation that a party who wants to apply for court’s indulgence on any matter. With due deference to the learned counsel for the respondents however, issue of jurisdiction is an exception to that general rule of procedure in view of the radically fundamental nature of jurisdiction which is the life-wire of every proceedings in courts. The altitude of the courts especially on issues of jurisdiction is that such non compliance with procedure of filing motion, Reply brief etc. is often over looked when such issue involves jurisdiction of the court. Where such issues of jurisdiction is raised or involved, the courts are still bound to look at and consider the points of objection raised by the parties once it poses a challenge on to the jurisdiction of the court. See the case of Dairo vs UBN Plc (supra). I have also dealt with whether Issue A in the appellant’s brief is covered by Ground D in the Appellants’ notice of appeal while treating 4th respondent’s objection and held supra that the issue in question did not ipso facto relate to jurisdiction, hence prior leave must have been sought and obtained and also that it did not flow from Ground D of the Notice of Appeal. The said issue A and all the argument’s/submissions proffered on it were accordingly struck out. As a corollary, the Preliminary Objection by the 1st to 3rd Respondent therefore suffers same fate with that of 4th Respondent only to the extent stated earlier. It is therefore upheld in part.
Having dealt with the two preliminary objections, I shall still consider the substantive appeal. In doing so I think treating the appeal by being guided by the sole issue raised by the 4th respondent will adequately determine the appeal. The sole issue even at the risk of being repetitive, is simply ‘whether the lower tribunal was justified on the evidence and pleadings placed before it to dismiss the Petitioners’ case as unproven’. In relation to this issue, the learned senior counsel for the appellants submitted that there is ample evidence adduced by them that ballot papers were carried to a private house where they were thumb-printed in many polling stations but the tribunal rejected or disbelieved such evidence simply because the number of ballot papers criminally thumb-printed was not given by the complainant so as to enable it subtract the number of ballot papers thumb-printed from the votes in the constituency in order to ascertain the number of votes credited to the thumb-printer and find out which of them fall below the votes of his opponent. It is also the submission of the appellants’ senior counsel that they pleaded that there was no casting of votes or counting of votes at the polling booths but in an affidavit supporting a motion the 4th respondent denied it even though in his Reply he said he had been given the result of the election and even undertook to find out at the trial. He further argued that although parties were ad idem that INEC announced results of the election on 15/4/2007 they failed to distribute the result at each stage of the election i.e. at polling stations, ward collation and constituency collation centres as required by Section 75 of the Electoral Act 2006 and furnish parties and the police with copies of such results on the very day the results were declared i.e. 15/4/2007. He said since the 4th respondent confirmed on oath, that he received the INEC results in June then there is no more any
burden on the petitioners to further prove that there was no casting of votes or counting and announcement of results on 15/4/2007. He further reiterated his contention that no results were announced as enjoined by Section 64 of the Electoral Act 2006 but yet votes were allotted to candidates. Relying on the unreported case of Amgbara vs Sylva of the Port Harcourt division of this court delivered on 15/4/2008 (even though he failed to provide the citation of the case or supply us with copy of the case) the learned silk submitted that there is no burden on a petitioner complaining that there was no election to prove that there was election adding that the onus is on INEC to rebut the assertion that there was election by producing Form EC8 A where votes scored by each candidate at the polling station was recorded.
He then urged us to allow the appeal and set aside the decision of the tribunal and declare the said election null and void.
The learned counsel for the 1st to 3rd respondents in their joint brief of argument submitted in response to the above submissions by learned counsel to the appellants, that the latter failed to make a prima facie case through the evidence he adduced at the tribunal as would entitled the tribunal to consider the case of the respondents herein. He relied on the cases of Mogaji vs Odofin (1978) 4 SC 91; Aromire vs Awoyemi (1972) 2 SC 1 and Onwuama vs Ezeokoli (2002) 5 NWLR (Pt. 760) 353. He said the evidence adduced by the 1st appellant failed to establish the allegations such as hijacking of ballot boxes and illegal thumb-printing which he asserted to have taken place in the three wards of Izo, Okpoto and Ezzagu. He said even though the 1st petitioner/appellant named some persons who allegedly committed the illegal acts, none of those persons was called to testify at the tribunal. Learned respondents’ counsel also submitted that the 1st appellant/petitioner while testifying also did not state the number of votes attracted by the alleged non compliance and malpractices and how it affected the final result of the election and how he was prejudiced by such alleged non-compliance. See Buhari vs Obasanjo (2005) 13 NWLR (Pt 941) 1.
The Learned counsel for the 1st to 3rd respondents argued that having failed to adduce any evidence to substantiate or prove the allegations they made against the respondents, the burden of proof could not shift to the respondents hence the tribunal was right in finding that they did not make out prima facie case as would warrant the need to consider the case or defence of the respondents. He said the appellants in any case, did not show that they suffered any miscarriage of justice as a result of the tribunal’s non consideration of the respondents’ case/defence or by the dismissal of the petitioners/appellants’ petition. See Buba Usman vs Mohammed Garke (2003) 14 NWLR (Pt 840) 261. In yet another submission by the 1st to 3rd respondents’ counsel, he said the petitioners complaints were merely centred on three out of ten wards in the constituency, hence such complaints cannot lead to up-turning the victory of the 4th respondent on the remaining seven wards where he scored well over 34,819 votes as opposed to the 1st petitioner’s/appellant’s score of only 1,849 votes.
In another submission, the learned counsel argued on behalf of 1st to 3rd respondents, that there was evidence of substantial compliance with the Electoral Act, 2006 by his officials in the conduct of the election and the allegations by the appellants on non-compliance even if proved, did not establish how it affected the conduct of the election and its final results. See Ajadi vs Ajibola (2004) 16 NWLR (Pt. 898) 91 and Ogu vs Ekweremadu (2006) 1 NWLR (Pt 961) 255. He argued that an election can not be voided once it is shown or established that there was substantial compliance with the Electoral Act, 2006 and the Constitution since substantial compliance does not mean absolute compliance. See Biyu vs Ibrahim (2006) 8 NWLR (Pt. 891) 1. The Learned Counsel concluded his argument by submitting that the petitioner had the burden to prove through credible evidence that there were such malpractices and non-compliance and that such noncompliance had robbed him of victory at the election. See Buhari vs Obasanjo (2005) 2 NWLR (Pt. 941) 1; Wali vs Bafarawa (2004) 16 NWLR (Pt. 898), Yusuf vs Obasanjo (2005) 18 NWLR (Pt. 959) 96; Haruna vs Modibbo (2004) 16 NWLR (Pt. 980) 487. He also remarked that the evidence led by the appellants in proof of the allegations in their petition was not credible. See Chukwu Construction Co. Ltd. vs Uwechie (2000) 2 NWLR (Pt. 643) 92. Replying to the argument of the appellants in their joint Brief that the tribunal failed to weigh the cases of both sides on an imaginary scale, the Learned Senior Counsel for the 4th respondent stated that the cases Alhaji Buba Usman vs Mohammed Tanimu Garke (supra) and Rabiatu Adebayo & Ors vs Rasheed Shogo (supra) are not relevant because it is trite law that he who complains that a court did not adhere to the principles enunciated in the cases of Woluchem & Ors vs Gudi & Ors (1981) 5C 291 must show the prejudice he suffered as a result of the approach of the court. See also Usman vs Garke (supra). He said the petitioners/appellants failed to show in which way they were prejudiced by the tribunal’s approach in not considering the respondents case. He said even in some instances the tribunal juxtaposed the material contentions of the respondents vis-a-vis those of the petitioners as shown in their pleadings.
This can be seen on pages 194 and 196 of the Record. He further argued that it is not correct to say that the petitioners’ case was considered completely in isolation from the respondents’ case in that on page 199 lines 2 to 16 of the Record the tribunal considered the testimonies of the petitioners’ witnesses side by side with Exhibit 17, the Election result, which was an exhibit tendered by the 4th respondent before it arrived at its conclusion that the 4th respondent indeed scored 34,819 votes while the 1st petitioner scored 1,849 votes only.
While replying to the sole issue raised by him on whether the tribunal was justified on the evidence adduced before it and pleadings filed by the parties in dismissing the petitioners petition as unproven, the Learned Senior advocate for the 4th respondent submitted that the evidence adduced by the petitioners fall short of proof that the lawful votes scored by the 1st petitioner exceeded those scored by the 4th respondent. He also stated that the petitioners also failed to establish that if the illegal or illegitimate votes credited to the 4th respondent were deducted or discountenanced, the 1st petitioner would have been declared winner on the majority of lawful votes scored by him.
Learned senior advocate for the 4th respondent further submitted that the tribunal was correct in dismissing the petitioners’ petition as no prima facie case was made especially in view of the fact that the allegations of corrupt practices, malpractices, irregularities must be proved in order to successfully challenge the victory of their opponent. See Dr. Christopher Ogbonnaya Onu & Anor. vs Chief Martin Elechi Nwancho & Ors. Unreported case No. EA/E/EPT/11/08 delivered on 11/7/2008; Cindu vs Aliyu (1992) 2 NWLR (Pt. 231) 615; Ajadi vs Ajibola (2004) 16 NWLR (Pt. 898) 91; Buhari vs Obasanjo (2005) 13 NWLR (Pt. 941) 1. In another submission, the learned Silk for the 4th respondent stated that by their pleadings, the alleged malpractices, corrupt practices and irregularities occurred in only three out of the ten wards in the constituency. His witnesses also restricted their testimonies to those disputed wards only. In that regard it can be deemed that the petitioners abandoned the averments in paragraph 9 of their petition that electoral malpractices and corrupt practices occurred in almost all the wards in Ishielu South Constituency of Ebonyi State. He remarked also that the petitioners failed to prove that the malpractices, corrupt practices and irregularities affected his fortune or that the alleged misfortune had affected the result declared by INEC to his prejudice. See Buhari vs Obasanjo (supra); Omigwu vs Emelumba (2008) 9 NWLE (Pt. 1092) 371 and Dr. Ogbonnaya’s case (supra). For those reasons argued the Learned Senior Counsel, the tribunal was correct in dismissing the petition of the appellants.
The fifth Respondent as I said earlier also filed a two paged brief of argument. Therein, it naturally associated itself with the submissions of the 4th respondent, after it, of course, emphasized t hat the 4th respondent was and still is its candidate. It prayed that the appeal be dismissed by this court.
The gravamen of the petition filed by the petitioners (now appellants) before the tribunal is that the election on which the 4th respondent was declared and returned winner was marred by corrupt practices, non compliance with the provisions of Electoral Act, 2006 and electoral irregularities. The petitioners named three wards out of the ten wards in his constituency i.e. Ishielu South, as the areas where he alleged the vices occurred. To prove those allegation he made, the petitioners called seven witnesses to testify. Almost all the witnesses testified to the effect that there was no voting in the polling station they visited. The tribunal after duly considering the testimonies of the witnesses called by the petitioner dismissed the petition as it was not proved by them.
It is trite law that in an election petition where the petitioner alleges non-compliance with the electoral law, he must prove that there were malpractices and non compliance with the Electoral Act which prevented him from winning the election. See Kudu vs Aliyu (1992) 2 NWLR (Pt.231) 615 at 620. Similarly, where a petitioner alleges irregularities, malpractices or non compliance with the Electoral Act, he must also prove that such vices had impacted on the result of the election or that they were done with the knowledge or consent of the respondents whose return is being challenged. See Oregun vs Igbuedu of (1992) 9 NWLR (Pt. 276) 747; Falai vs Obasanjo (1999) 4 NWLR (Pt. 599) 476 at 496. I must say here, that in order to succeed in an election petition alleging that there was no substantial compliance with electoral law, he must show that the alleged irregularities have substantially affected the election of the respondent. He also must establish that the alleged irregularities were spear-headed by or linked with the respondent or his authorized agents. In Kingibe vs Isa Maina & Ors (supra) this court had this to say –
“It is clear from the above, that whether the complaint be on irregularities, unlawful votes or non compliance, it must be tied to the effect of such irregularities or non compliance on the results of the election. The law is that once the petitioner is unable to link the irregularities, malpractices or unlawful votes to its effect on the result of the election, the Petition is bound to fail.”
In the instant case the petitioners did not lead credible evidence to prove the allegations of corrupt practices, malpractices and or non compliance with the Electoral Act. They also did not lead evidence to show that such alleged corrupt practices, irregularities, non compliance impacted on the election or even prove that the respondent spear headed such acts or authorized the commission of such acts through his authorized agents. To my mind, that is the only way to rebut the presumption of validity of the conduct of an election. See Buhari & Ors. vs Obasanjo (2003) 16 NSCLN. It is noted by me, that the petitioners on Paragraph 9 of their petition extended the allegations of corrupt practices and non compliance to the entire constituency. As I said earlier, all his witnesses merely gave evidence on the three disputed wards out of the ten wards. The law is well settled that where a party failed to lead evidence on a fact he pleaded, he is deemed to have abandoned such pleaded facts. See Awojugbagbe High Industries Ltd vs Chinukwe (1995) 4 NWLR (Pt. 390) 379; Ojukwu vs Fella (1954) 14 WACA 628; Emegokwue vs Okadigbo (1973) 4 SC 113; Olarewaju vs Bamgboye (1987) 3 NWLR (Pt 60) 353. WCE Ltd vs Batalha (2006) 9 NWLR (Pt ) 595.
It is settled law, that where an allegation of non compliance with the electoral law is made, the onus lies on the petitioner to first of all establish the non compliance and secondly that it did or could have affected the result of the election. It is only after the petitioner has established the foregoing, that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected. In the instant case, the tribunal has duly considered and evaluated the evidence led by the petitioners in proof of the allegations they made, and it, rightly in my view, found the same to be short of proof of the petition. It is therefore right in dismissing the petitioners’ petition without necessarily considering the evidence of the respondents. It is for the petitioner to establish a case of non-compliance first, before the evidence of the respondents could come into play. See Siven vs Dzungwe (1960) 1 SC NLR 111 or (1966) NMLR 297; See also Akinfosile vs Ijose (1960) SCNL 447. Buhari vs Obasanjo (2005) 50 WRN 1; or (2005) 13 NWLR (Pt 941) 1; Awolowo vs Shagari (1979) 6 – 9 SC 511 or (1979 – 1981) 12 NSCC 87. It is instructive that once there is substantial compliance with the law as to the election that will suffice. See Rekensigton vs North Parliamentary Election (1960) 2 All ER 150 at 153.
The tribunal while considering the evidence adduced by the petitioners, had found rightly in my view, that none of the witnesses called by the petitioners testified on the number of votes credited to the 4th respondent in the three disputed wards. They also did not lead evidence on the fraction of 34,819 votes scored by the 4th respondent in Exhibit 17 the approved election results issued by INEC. The petitioners also failed to lead evidence on the number of registered voters that were allegedly disenfranchised by the alleged corrupt practices.
Despite the failure of the petitioners/appellants to call credible evidence to prove the spurious allegations of malpractices they made, the petitioners now complained that the case of the respondents were not considered by the tribunal. They however failed to show in what way they were prejudiced by the tribunal’s approach since it was not their case that was not considered. If they feel the respondents were not accorded fair hearing, I think they (the respondents) are the best persons and most competent to complain and not the petitioners/appellants. I have earlier stated that they have the burden to prove their case before the burden shifts.
The petitioners in any case, failed to establish how they were prejudiced or that miscarriage of justice was occasioned. In the case of Usman vs Garke (supra) Ejewunmi JSC had this to say at page 279 Paragraph G –
“It must be said further that it is not good enough to argue that the case of the appellant was considered by the court below. In my respectful view, it must be shown that t he appellant suffered a miscarriage of justice as a result of the approach adopted by the court below…….. In its consideration of the case of the appellant. As this has not been shown in respect of this issue, I must resolve this question against the appellants.”
Now, even having a close look at the judgment of the tribunal now being appealed against, I think it is not even correct to say that the tribunal in its evaluation of the evidence did not consider the respondents case. It is note worthy, for example, that on page 199 lines 2 to 16 of the records, that the tribunal analysed the contents of Exhibit 17 which is documentary exhibit tendered in evidence by the respondent. And as I said earlier even if it is correct that the case of respondents were not considered, the appellants did not establish how they were prejudiced by that approach by the tribunal.
Thus, after a careful consideration of the evidence adduced by the petitioners at the tribunal, I think I can not fault the tribunal’s finding when it held that from the totality of the evidence led by the petitioners witnesses, the allegations of corrupt practices and non compliance with the Electoral Act were not established. The issue is therefore resolved against the two appellants.
On the whole, the resultant effect of all that I have remarked above is
that the appeal lacks merit. It fails and is accordingly dismissed by me. The judgment of the tribunal in Petition No. EPT/EBS/HA/AB/8/2008 delivered on 17th of September 2007 is hereby affirmed. Costs follow events. A sum of N3 0,000 is awarded to the 4th respondent only which should be paid by the two petitioners/appellants herein.
OLUKAYODE ARIWOOLA, J.C.A: I had the opportunity of reading the draft of the lead judgment of my learned brother, SANUSI, JCA just delivered. I am in total agreement with the reasoning therein and the conclusions arrived thereat.
I abide by the consequential orders in the lead judgment, including order on costs.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading in advance the Judgment of my learned brother, AMIRU SANUSI, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions. I have nothing to add. I also abide by all orders made by my learned brother in the Judgment including the order as to costs.
Appearances
Egwuoyibo OkoyeFor Appellant
AND
Matthew Ugwuocha Esq.
Dr. J.O. Ibik SANFor Respondent
