MR. ASUQUO EKPO ADA & ANOR v. WILSON E. EKPENYONG & ORS.
(2012)LCN/5086(CA)
In The Court of Appeal of Nigeria
On Saturday, the 7th day of January, 2012
CA/C/NAEA/306/2011
RATIO
THE POSITION OF THE LAW ON THE PERSON WHO MAKES ALLEGATIONS IN A PLEADING
In resolving issue three I shall take solace in the words of Abbott F. J., in Akinfosile vs Ijose (1960) 5 FSC 192 at 198 where his Lordship held that: “The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading.” Thus where it was argued that once non-compliance with the provisions of the Regulations governing elections had been shown by the petitioners the onus shifts to the respondent to satisfy the Court that the non-compliance did not affect the result of the election, Abbott F.J., held at page 199 of the judgment in Akinfosile vs Ijose supra that: “I am firmly of the view as above indicated, that a petitioner who alleges in his petition a particular non-compliance and, avers in his prayer that the non-compliance was substantial must so satisfy the Court. This, the petitioner failed to do. It follows therefore, that I would allow this appeal, set aside the judgment of the Court below with the order for costs so far as the first respondent’s concerned, and order that the petition should be dismissed … ” PER. JOSEPH TINE TUR, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. MR. ASUQUO EKPO ADA
2. ACTION CONGRESS OF NIGERIA – Appellant(s)
AND
1. WILSON E. EKPENYONG
2. THE RESIDENT ELECTORAL COMMISSIONER, CROSS RIVER STATE (MR. MIKE IGINI)
3. THE INDEPENDENT NATIONAL ELECTORAL
4. THE PEOPLES DEMOCRATIC PARTY – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Mr. Asuquo Ekpo Ada (1st Appellant) of Nigeria (2nd Appellant) and Mr. Wilson E. Ekpenyong (1st Respondent) of the Peoples Democratic Party (4th Respondent) were contestants at the elections conducted on the 26th day of April, 2011 by the Resident Electoral Commissioner, Cross River State (2nd Respondent) and the Independent National Electoral Commission (3rd Respondent) into the House of Assembly, Cross River State to represent Odukpani State Constituency. Other contestants included Kingsley Ndem Prince Ndemita; Joseph Bassey Eno; Victor Okon Erim, Bassey Effiong Usuh and Ekpenyong A. Bassey. At the close of the polls the 2nd and 3rd Respondents declared the 1st Respondent as duly elected having polled 7,213 votes while the 1st Petitioner polled 1,135 votes. Wilson Ekpenyong secured 391 votes as against 594 votes polled by Kingsley Ndem Prince Ndemita. Joseph Bassey Eno had 203 votes. Aggrieved with the declaration the 1st and 2nd appellants presented a joint petition before the Election Tribunal holden at Calabar, Cross River State on 18-05-2011. The grounds for presenting the petition were set out in the petition as follows:
“37. The election was invalid by reason of non-compliance with the Provisions of the Electoral Act, 2010 as Amended.
38. The 1st Respondent was at the time of the election not qualified to contest the election.
39. The petitioner scored the highest number of lawful votes cast but the 1st Respondent was declared winner. ”
The petitioners sought the following reliefs from the Tribunal:
“WHEREUPON THE PETITIONER prays as follows:
(a) A declaration that the election into the House of Assembly for Odukpani State Constituency held on 26th April, 2011 was invalid by reason of non-compliance with the provisions of Electoral Act, 2011 as Amended.
(b) A declaration that the election into the House of Assembly of Odukpani State Constituency held on 26th April, 2011 is null aid void.
(c) An order that a fresh election be conducted into Odukpani State Constituency.
(d) A declaration that the 1st Respondent was not qualified to contest election into the House of Assembly for Odukpani State Constituency.”
OR IN THE ALTERNATIVE
“(a) A declaration that the petitioner scored the highest number of valid votes cast in election held on 26th April, 2011 in Odukpani State Constituency
(b) A declaration that the petitioner was validly elected in election held on 26th April in Odukpani State Constituency.
(c) An order directing the 3rd Respondent to issue a Certificate of Return to the petitioner for the election held on 26th April, 2011 in Odukpani Constituency.”
Pleadings were filed and exchanged by the parties. The matter proceeded to trial. Counsel submitted written addresses. The Tribunal considered the oral and documentary exhibits before arriving at the conclusion that there was no evidence for the petitioners to ‘succeed’ on their claim. The Tribunal dismissed the petition on 14th any of November, 2011
On 02-12-2011 the appellants filed a Notice of Appeal containing four grounds challenging the judgment of the Tribunal. The appellants filed a Brief of Argument on 19-12-2011. The 1st Respondent, did likewise on 23-12-2011. The 2nd and 3rd Respondents filed their Joint Brief on 22-12-2011 while the 4th Respondent did so on 23-12-2011. When the appeal came up for hearing on 06-01-2012 learned Counsel appearing for the parties adopted their respective briefs of argument.
The fact of the matter is that a dispute had arisen within the rank and file of the Peoples Democratic Party (4th Respondent) as to the nomination and sponsorship of candidates to contest the election to be held on 26th day of April, 2011 into the various seats in the National and State House of Assembly in Cross River State. The 1st Respondent and 38 others instituted an action in the Federal High Court; Calabar, Cross River State viz Senator Liyel Imoke & ors vs INEC in suit No.FHC/CA/CS/17/2011. The Court validated the 1st Respondent’s candidacy and sponsorship by the 4th Respondent at the polls.
Armed with this judgment the 1st Respondent contested the elections of 26th April, 2011 and won hence the petition and subsequence, appeal by, the appellants. The appellants formulated the following issues for determination by this Court to wit:
“(a) Whether an Election Tribunal has the jurisdiction to determine the constitutional validity of sponsorship of a candidate in an election by a the political party.
(b) Whether the Written ,statement on & Oath of a witness in an election petition is a document capable of being tendered in evidence as an exhibit at the trial of the petition.
(c) Whether the election of 26th April, 2011 for Odukpani State Constituency was conducted with the strict compliance to the provisions of the Electoral Act, 2010 as amended.
(d) Whether allegations of crime are, severable in election petitions.”
The 1st Respondent identified three issues for determination to be as follows:
“(1) Whether the decisions of the Court of Appeal is binding on all other inferior Courts in the judicial hierarchy of Courts in Nigeria.
(2) Whether the Appellants have discharged the burden of proof in their petition to be entitled to judgment or the reliefs sought.
(3) Whether the Election Tribunal or indeed the Court of Appeal has jurisdiction to determine issues of sponsorship/nomination of the 1st Respondent by the 4th Respondent which occurred before the elections.”
To the 2nd and 3rd Respondents the issues for determination are as follows:
“1. Whether an Election Tribunal has the jurisdiction to determine the constitutional validity of the sponsorship of a candidate in an election by a political party.
2. Whether the Written Statement on Oath of a witness in an election petition is a document capable of being tendered in evidence as an exhibit at the trial of the petition.
3. Whether the election of 26th April, 2011 for Odukpani State Constituency was conducted with the strict compliance to the provisions of the Electoral Act, 2010 as amended.
4. Whether allegations of crime are severable in election petitions.”
Last but not least is the formulation of the issues for determination by the 4th Respondent which have been couched as follows:-
“1. Whether the issues of party primaries, nomination, sponsorship and congresses are within the jurisdiction of an election petition tribunal. (Ground 2)
2. Whether the petitioner/appellants proved their petition by the required standard to have entitled them to judgment in their favour. (Ground 1, 3, and 4).”
ISSUE ONE:
The question posed by learned counsel for determination under issue one is whether an Election Tribunal has the jurisdiction to determine the constitutional validity of the sponsorship of a candidate in an election by a political party. Learned Counsel, cited Ugwu v. Ararume (2007) 6 SC 88 at 186; Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 notwithstanding the fact that there is a subsisting judgment of the Federal High Court, Calabar namely, Suit No.FHC/CA/CS/17/2011 viz Senator Imoke & Ors v. INEC that determined the issue of the nomination and sponsorship of the 1st Respondent by the 4th Respondent to contest the election of 26th April, 2011.
Learned Counsel to the 1st Respondent submitted that the burden of proving that the 1st Respondent was not sponsored by the 4th Respondent rested on the appellants. Counsel to the 2nd and 3rd Respondents as well as the 4th Respondent contended that the appellants had no locus standi to raise this issue before the Pleadings are binding on the Tribunal, the Court of Appeal and the Tribunal and in this Court since it is not shown that they are members of the 4th Respondent.
In my humble opinion it is not in dispute that the 1st Respondent contested election of 26th April, 2011 on the authority of the judgment of the Federal High Court, Calabar which, at the time of the election, had no been set aside by an appellate Court and was therefore subsisting. Even if the judgment was a nullity, but that has not been shown to be so by the appellants, an order of Court is needed to set aside a nullity judgment. See Akinfolarin v. Akinola (1994) 4 SCNJ (Pt.1) 30 at 47 – 49; Aladegbemi vs. Fasanmade (1988) 3 NWLR (Pt.81) 129 and Rossek v. ACB Ltd (1993) 8 NWLR (Pt.312) 382. The judgment of the Federal High Court declared the right of the 1st Respondent and others to be sponsored by the 4th Respondent to contest the election. This fact is admitted by the petitioners in their joint petition filed on 18-05-2011 as follows:
“3. The 1st Respondent was the candidate purportedly (sic) under the platform of the 4th Respondent in the election into the House of Assembly for Odukpani Constituency held on the 26th day of April, 2011.
6. The 4th is the party that purportedly sponsored the 1st Respondent for the election into the House of Assembly for Odukpani State Constituency held on the 26th day of April, 2011.
7. The election into the House of Assembly for Odukpani State Constituency held on the 26th day of April, 2011.
Pleadings are binding on the Tribunal the Court of Appeal and the parties. See Temco Engineering & Co. Ltd. vs S.B.N. Ltd. (1995) NWLR (Pt.397) 607 at 617; African Continental Seaways Ltd vs Nigeria Dredging Road and General Works Ltd (1977) 5 SC 235 at 250. Admitted facts in the pleadings or petition need no further proof at the trial. See Andony vs Ayi II & Ors (2004) All FWLR (Pt.227) 444 at 482; Elendu vs Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747. No respondent sets out to prove that which has been admitted by the petitioner. See Olale vs Ekwelendu (1989) 7 SCNJ (pt.2) 62 at 102.
My humble view is that the appellants are mere busy bodies that are seeking to impugn the election of the 1st Respondent on the grounds he was not sponsored by the 4th Respondent. Not being members of the 4th Respondent it does not lie in their mouth to complain that the 4th Respondent did not nominate nor sponsor the 1st Respondent to contest the elections held on the 26th day of April, 2011. Moreover, though constituted and presided over by learned Justices, the Tribunal, being an inferior tribunal, has no jurisdiction to determine or review the validity of the judgment of the Federal High Court, Calabar. That is the pre-rogative of the Appeal Court under. Section 242(1) or 243(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, and as the case may be. The Tribunal had no jurisdiction to review or reopen the issue of nomination and sponsorship of the 1st Respondent by the 4th Respondent once that issue was determined by the Federal High Court and acted upon by the 2nd, 3rd and 4th Respondents. The Tribunal was right to have declined jurisdiction to entertain that issue; The question posed in issue one has become an academic exercise. There is no substance in issue one which I hereby resolve against the appellants.
ISSUE TWO:
The argument under issue two was that the Tribunal rejected the deposition of Pw1 and marked’ it’ as “tendered but rejected”. Counsel submitted that a written statement on oath is, not such a document that is to be tendered, as an exhibit in an election petition. That it is a deposition and cannot be regarded as evidence before the Court but is akin to pleadings in a regular Court. Only when it is adopted does it become evidence in Court. Learned Counsel’ cited Funtua vs Tijani (2011) 7 NWLR (Pt.1245) 130. Learned Counsel submitted that written statement on oath of a witness in an election do not require strict compliance with the provisions of the Oaths Act, citing Chukwuma vs Nwoye (2011) All FWLR (Pt. 553) 1970. Counsel referred to paragraph 4(5)(i)(b) and (c) of the 1st Schedule to the Electoral Act, 2010 as amended. That Pw1’s written statement on oath was not listed as a document of any of the parties. Since the written statement of Pw1 was on oath and signed before the Secretary of the Tribunal as Commissioner for Oaths, the presumption of regularity avails the petitioners. Counsel cited Udegha vs Omegara (2010) 11 NWLR (Pt.1204) 168 at 195 where it was held that once the witnesses’ statement on oath had been adopted it becomes evidence. Counsel further referred to Aregbesola vs Oyinlola (2011) 9 NWLR (Pt.1253) 565.
Counsel submitted that the appellants’ right to fair hearing was breached when the tribunal refused to ascribe probative value to Pw1’s deposition. Secondly, since the Respondents did not call evidence, the appellants’ evidence remained unchallenged and should have been believed and acted upon by the tribunal. Counsel urged that this issue should be resolved in favour of the appellants.
Learned Counsel to the 1st Respondent submitted that a written deposition on oath is usually in a documentary form and the Tribunal has the right to accept or reject it if it did not conform with the provisions of the law governing acceptance. It was contended that the effect of rejecting the written deposition of Pw1 was to render the contents inadmissible and of no probative value, citing Obumneke v. Sylvester (2010) All FWLR (Pt.506) 1945 at 1961.
Learned Counsel to the 2nd and 3rd Respondents responded that issue two did not arise from the judgment of the Tribunal and being a fresh issue, leave of this Court was needed to raise it, citing Okafor v. INEC (2010) 3 NWLR (Pt.1120) 1 at 25-26; and Adelakun v. Oruku (2006) 11 NLWR (Pt.992) 625 at 641. It was further argued that the rejection of Pw1’s deposition on oath was based on the fact that it did not comply with the provisions of the Oaths Act. This was covered by the decision in Obumeneke vs Sylvester (2010) All FWLR (Pt.506) 1945.
There was no response to issue two from the 4th Respondent.
The petitioners called one witness but his written statement on oath could not be admitted in evidence due to the sustenance of the objection raised to the admissibility of the statement for non-compliance with the provisions of Section 13 of the Oaths Act, 2004 and the authority of Obumneke v. Sylvester (2010) All FWLR (Pt.1945) 1961. Thereafter the petitioners tendered documentary exhibits “A-A12”; “B-B10; “C-C1”; D and D1 respectively. The petitioner then closed his case.
The 1st-4th Respondents did not call evidence at the trial. Having rejected the deposition the onus is on the appellants to show how the wrongful exclusion of the deposition on oath is to lead a reversal of the decision of the Tribunal. That can only be possible if the appellants can show that, had the deposition been included it may reasonably be held that the decision of the Tribunal would have favoured the appellants. See Anyanwu vs Mbara (1992) 6 SCNJ (Pt.1) 22; Saraki vs Koloye (1992) 11-12 SCNJ 26. However, the Tribunal rejected the written deposition of Pw1 based on the authority of Obumneke vs Sylvester supra. The appellants have not been able to fault that authority. There is no substance in issue two as argued by learned Counsel to the appellants. The issue is resolved against the appellants.
ISSUE THREE:
The appellants contention under issue three is as to whether the elections of 26th April, 2011 held for Odukpani State Constituency was conducted with strict compliance with the provisions of the Electoral Act, 2010 as amended.
My humble opinion is that an appellant who complains that election was not conducted in strict compliance with the provisions of the Electoral Act, 2010 as amended should pinpoint as near: as possible those provisions of the Act that have been violated so, as to give due notice to the Respondents as to the case they shall be confronted with at the trial. Learned Counsel to the appellants referred to Exhibits A-A12 as showing widespread instances of substantial non-compliance with the provisions of the Electoral Act, 2010 as amended. That these were the handiwork of the 3rd Respondent in conducting the election of 26th April, 2011 into the Odukpani State Constituency. Counsel submitted that where a petitioner alleges’ non-compliance with the provisions of the Electoral Act as amended the onus of proof shifts to the Respondent to adduce evidence to establish such matters distribution of electoral materials, accreditation of voters etc. citing Dr. Paul Ukpo & 2 Ors vs Liyel Imoke (2009) 1 NWLR (Pt.1121) 90 at 149.
Learned Counsel to the 1st Respondent contended that this issue did not arise from the 4th ground of appeal and should be struck out. Learned Counsel to the 2nd -3rd Respondents submitted that the mere allegation that the election was not conducted in strict compliance with the provisions of the Electoral Act, 2010 as amended without supporting evidence will not avail the appellants, citing Chime vs Ezea (2009) 2 NWLR (Pt.1125) 263 at 354 and Buhari vs Obasanjo (2005) 13 NWLR (Pt.941) 1. Counsel argued that the appellants had failed to rebut the correctness of the elections held on the 26th day of April, 2011 hence this appeal should be dismissed. Learned Counsel to the 4th Respondent urged the Court to dismiss the appeal and uphold the reasoning of the tribunal that the appellants did not prove their allegations of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 as amended.
In resolving issue three I shall take solace in the words of Abbott F. J., in Akinfosile vs Ijose (1960) 5 FSC 192 at 198 where his Lordship held that:
“The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading.”
Thus where it was argued that once non-compliance with the provisions of the Regulations governing elections had been shown by the petitioners the onus shifts to the respondent to satisfy the Court that the non-compliance did not affect the result of the election, Abbott F.J., held at page 199 of the judgment in Akinfosile vs Ijose supra that:
“I am firmly of the view as above indicated, that a petitioner who alleges in his petition a particular non-compliance and, avers in his prayer that the non-compliance was substantial must so satisfy the Court.
This, the petitioner failed to do. It follows therefore, that I would allow this appeal, set aside the judgment of the Court below with the order for costs so far as the first respondent’s concerned, and order that the petition should be dismissed … ”
The petitioners were bound to produce evidence to establish the fact that the 2nd and 3rd Respondents did not comply with any provisions of the Electoral Act, 2010 as amended in the conduct of the elections held on 26th April, 2011. It is not the law that having made these allegations the petitioners were to fish for evidence from the Respondents to support their allegations. He who alleges must prove. See Peter Obiaku vs Ignatius Ekesiobi (2003) FWLR (pt.166) 661; Tsokwa vs UBN (1996) 12 SCNJ 445 at 481; Yusufu vs Obasanjo (2004) FWLR (Pt.190) 1388 at 1407-1408; Abdullahi vs Hashidu (1999) 4 NWLR (Pt.600) 638 at 646.The written deposition of the only witness called by the appellants having been rejected there was no oral evidence to support the facts set out in the petition. However the Exhibits tendered at the tribunal were not shown through mathematical calculations or otherwise that the 1st Appellant had the highest majority of lawful votes cast at the election but the 1st Respondent was wrongly returned as the member of the House of Assembly to represent Odukpani State Constituency in Cross River State of Nigeria. It is not every error committed that is capable of upsetting the judgment of the Tribunal by an appeal Court.
There is no substance in this lead of complaint which I resolve against the appellants.
ISSUE FOUR:
The poser under issue four is whether allegations of crime are severable in election. No argument was proferred by learned counsel to the appellants in respect to this issue which is not supported by any ground of appeal. The issue is deemed abandoned and is accordingly struck out.
On the whole this appeal lacks merit and is dismissed. No order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Joseph Tine Tur, JCA, had fully considered the three (3) issues submitted by learned counsel for decision in this appeal in the lead judgment written by him, a draft of which I had read before today. I am in agreement with the reasoning and conclusions reached on the issues and so find no merit in the appeal. I join the lead judgment in dismissing the appeal accordingly. I also make no order on costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother J. T. Tur, JCA. All the four issues articulated by the Appellant are all resolved against him. On the whole this appeal lacks merit and it is hereby dismissed. I abide by all the consequential orders contained in the lead judgment including that as to costs.
Appearances
W. Ballantyne For Appellant
AND
A. E. Ettih with F. U. Okoli – for the 1st Respondent
D. D. Dodo, SAN with Mrs. N. O. Amah; Mba E. Ukwen; Chie E. A. Akpoke; P. O. Arikpo; Terhemba Gbashima and Jumbo Festus – for 2nd and 3rd Respondents.
Chief O. N. Egodu – for 4th Respondent For Respondent
