MR. EMMANUEL UCHIEZE v. CHIEF GODSON EZENAGU & ORS.
(2010)LCN/4016(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of September, 2010
CA/E/EPT/NA/63/2008
RATIO
WHETHER ALL DOCUMENTS ARE PRESUMED TO HAVE BEEN MADE OR WRITTEN OR EXECUTED ON THE DATE OR DATES SHOWN ON THEM
The law is that all documents are presumed to have been made or written or executed on the date or dates shown on them. See Onu JCA (as he then was) in OTTIH v. NWANEKWE (1990) 3 NWLR Pt. 140 Pg. 550 at 563. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
WHETHER WHERE A DOCUMENT IS NOT DATED OR WRONGLY DATED THE REASON FOR THE WRONG DATING MUST COME FROM EVIDENCE OF THE MAKER
If a document is not dated or wrongly dated the reason for the wrong dating must come from evidence of the maker. See M/S O. ILEMOBOLA CO. LTD. v. GOV. KADUNA STATE (2007) 7 NWLR Pt. 666 Pg. 633. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EFFECT OF THE FAILURE OF THE PETITIONER TO PROVE HOW NON-COMPLIANCE WITH THE PROVISION OF THE ELECTORAL ACT 2006 SUBSTANTIALLY AFFECTED THE RESULT OF THE ELECTION
The Supreme Court’s decision in BUHARI v. INEC is very relevant in the circumstances of this case. In BUHARI v. INEC (2008) 19 NWLR Pt. 1120 Pg. 246, the Supreme Court by a majority of four to three held that even though the petitioner proved non-serialization of the ballot papers which all the Judges agreed was a serious infraction of the Electoral Act 2006, he failed to prove how the infraction substantially affected the result of the election and the petition must fail. This was the previous collective stand of the Supreme Court in BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PROVISION OF THE STATUTE AS REGARDS CIRCUMSTANCES UNDER WHICH NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT WILL NOT RESULT TO THE INVALIDATION OF THE ELECTION
In BUHARI v. INEC at Pg. 364-369, the Supreme Court per Niki Tobi JSC in interpreting S. 146(1) of the Electoral Act placed a very heavy burden on the Petitioner in an election petit;on. S.146(1) of the Electoral Act provides as follows: “An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the election.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PROVISION OF THE ELECTORAL ACT AS IT RELATES TO THE BURDEN PLACED ON A PETITIONER
S.16(1) of Electoral Act places a two fold burden on the petitioner. He has to satisfy the Tribunal that the non-compliance occurred and was substantial. He also has to satisfy the Tribunal that the result of the election was affected. See AGBAJE v. FASHOLA (2008) 6 NWLR Pt. 1082 Pg. 90 at Pg. 134. After proving the non-compliance, the petitioner is obliged to go further to prove that the non-compliance substantially affected the outcome of the election. It is after the petitioner has discharged this burden, that the 1st Respondent is obliged to rebut it by proving that the non-compliance did not affect the result of the election. See BUHARI v. INEC supra. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
MR. EMMANUEL UCHIEZE – Appellant(s)
AND
1 CHIEF GODSON EZENAGU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 73 ORS. – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgement): This judgment is in respect of a consolidated appeal against the judgment of the National Assembly Governorship/Legislative Houses Election Petition Tribunal Anambra State delivered on 8/6/08. The Tribunal allowed the petition in part and nullified the election in Awka South Local Government and the return of Mr. Emmanuel Uchieze as the duly elected candidate for the Awka North/South Federal Constituency at the election held on 21/4/07. The Tribunal upheld the election in Awka North Local Government and set aside the election in Awka South with an order for new election to be held in Awka South Local Government. The Tribunal held that fresh elections be held between the same parties who contested the General Election. In Appeal No. CA/E/EPT/NA/63/08, the Appellant who was the 1st Respondent before the Tribunal has appealed against the decision of the Tribunal to nullify the election in Awka South Local Government and set aside his return.
In Appeal No. CA/E/EPT/NA/63A/08 the Appellant who was Petitioner before the Tribunal has appealed against that part of the decision of the Tribunal not to disqualify the 1st Respondent and that part of the Tribunal’s decision validating the election held in Awka North Local Government.
CA/E/EPT/NA/63/2008
Appellant’s brief was dated 28/8/08 and filed on 25/8/08. The 1st Respondent’s brief was undated but filed on 19/9/08 while the 2nd-74th Respondents’ brief was dated and filed on 27/10/08.
The Appellant’s counsel Dr. Onyechi Ikpeazu SAN, OON, identified three issues for determination as follows:
1. Whether the discrepancy between the date of the election in Form EC8C(iii) for Awka South Local Government Area and the date in Form EC8E(ii), the statement of Declaration of result in the Awka North/South Federal Constituency was sufficient to vitiate the election in Awka South Local Government. (GROUNDS I and II).
2. Assuming the wrong date on Form EC8C(ii), Exhibit RC328, amounted to an infraction, whether the 1st Respondent established that the said non-compliance substantially affected the result of the election in Awka North/South Federal Constituency. (GROUND III)
3. Whether on the evidence led by the parties the Tribunal was justified in holding that there was no collation and announcement of result in the INEC Office at Awka South Local Government. The 1st Respondent’s counsel Mr. O.J. Nnaji Esq. also identified three issues for determination as set out below:
1. Whether the 1st Respondent pleaded and gave evidence that there was no collation and announcement of result at the Constituency Collation Centre Awka South Local Government on 21/4/2007 and the said evidence of non-collation and announcement of result supported by exhibit RR328 tendered by the Appellant (Grounds 1 and II and VI of the Notice and Grounds of Appeal).
2. In the absence of any evidence to explain the contradiction in exhibit RR328 which is to the effect that the result of the election was collated and announced on 22/4/2007. Was the Tribunal not right in the judgment of the Tribunal that the infraction supported the evidence of the 1st Respondent’s witnesses of non-collation and announcement of result for Awka South Local Government/Constituency substantial to warrant the nullification of the election for Awka South Local Government Area as was done by the Tribunal (Ground III of the Notice and Grounds of Appeal).
3. Whether the order of the Tribunal for fresh election in Awka South Local Government Area occasioned a miscarriage of justice for the Appellant (Ground IV of the Notice and Grounds of Appeal).
The 2nd-74th Respondents’ brief dated and filed on 27/10/08. Counsel Chukwudi Charles Okaa Esq. distilled the following issue for determination:
“Whether from the state of the pleadings, evidence led, the appraisal of evidence led by witnesses and ascription of probative value, the Tribunal was justified in relying on a Local Government Area collation result Form EC8C(ii) wrongly dated to nullify the election held in Awka South Local Government Area.
There is no doubt that on reading the judgment of the Tribunal and the notice and grounds of appeal in respect of this appeal that the gravamen of this appeal and the main issue for determination is as follows:
“Whether the learned Tribunal was right in holding that the discrepancy between the date of the election in Exh. RR328 – Form EC8C(ii) and Form EC8E(ii) was sufficient to vitiate the election in Awka South Local Government.”
Learned senior counsel for the Appellant, Dr. Ikpeazu SAN argued that the 1st Respondent never pleaded that the results of the election were not collated at the Awka South Local Government INEC Headquarters. The Appellant argued that the case of the 1st Respondent at the lower court was that there was non collation at the 34 wards making up the two local governments because result sheets were deliberately not supplied. Counsel argued that the 1st Respondent never alleged that collation did not take place at the Local Government INEC Headquarters of the Awka South Local Government, being the other half of the Federal Constituency. This is significant and goes to the root of the decision of the Tribunal complained of by virtue of Ground I of the Grounds of Appeal.
Appellant’s counsel argued that besides the fact that the 1st Respondent did not plead that there was no collation or declaration of result at INEC office at Awka South Local Government Area, the Tribunal was duty bound to look at the totality of the evidence led in the matter and not to isolate minute segments of an election process which is a chain of events.
Learned senior counsel argued that the evidence of non collation at the Local Government collation centre being unpleaded goes to no issue. He cited OLOMOSOLA v. OLORIAWO (2002) 2 NWLR Pt. 750 Pg. 113 at 124; SOLANA v. OLUSANYA (1975) 6 SC. 55; MARADESA v. MILITARY GOV. OYO STATE (1986) 3 NWLR Pt. 27) 125; RANSOME-KUTI v. A.G. OF THE FEDERAL (1988) 2 NWLR Pt. 16 Pg. 211; NDUKWE v. ACHA (1998) 6 NWLR Pt. 552 Pg. 25; IFEADI v. ATEDZE (1988) 13 NWLR Pt. 581 Pg. 205; EKPECHI v. OWHONDA (1998) Pt. 543 Pf. 618; OLOGE v. UKEJE (1998) 12 NWLR Pt. 576 Pg. 23.
Learned counsel for the 1st Respondent, Mr. O.J. Nnaji argued that the Tribunal’s judgment is to the effect that there is documentary evidence tendered by the Appellant which supports the case of the 1st Respondent that there was no collation of result and announcement of result at Awka South Local Government Area.
The counsel further argued that in any case, the only presumption exhibit RR328 can raise is that it was made on 22/4/2007 after the collation and announcement of result and return of the Appellant on 21/4/2007 as evidenced by Exh. RR327 and RR330. He argued that Exhibit RR328 is evidence that there was no collation and announcement of result on 21/4/2007. Counsel submitted that Exhibit RR328 cannot be regarded as authentic and correct.
Counsel argued that the 1st Respondent pleaded in paragraph 7(2) XVI at page 11 of the petition thus:
“The returns made by the Federal Constituency Returning Officer for Awka North and South Federal Constituency was not made in compliance with the Electoral Act.”
He further argued that the 1st Respondent and his witnesses established that there was infraction in that there was no collation and announcement of result at Awka South Local Government INEC office on 21/4/2007. INEC did not testify at all to explain or show that there was collation. No witness for the Appellant testified to say that there was collation and announcement of result at Awka South Local Government INEC office on 21/4/2007.
He submitted that the infraction is substantial in that the result as declared in Exh. RR330 on 21/4/2007 was declared without any result from Awka South Local Government Area. The 1st Appellant was returned as winner of the election on 21/4/2007 without the result and without any collation and announcement of result for Awka South Local Government Area. He submitted that it is the law that where malpractices in an election petition are proved the whole election must be declared null and void. See SERIKI v. ARE (1999) 3 NWLR Pt. 595 Pg. 469. He argued that the 1st Respondent by the exhibit tendered in the proceedings and pleading and evidence of his witnesses proved non-compliance with the provisions of the Electoral Act 2006 and also showed that the result was announced before Exh. RR328 was made.
Counsel for the 2nd-74th Respondents, Mr. Chukwudi Charles Okaa argued that even though the Tribunal rightly held that the election was regularly held and that presumption on the result was not rebutted, the Tribunal erroneously refused to dismiss the petition. The sole basis of the decision was the reliance by the Tribunal on the evidence of PW6 and the wrong date on the Local Government Collated Result Form EC8C(ii). Counsel argued that the Appellant never pleaded non collation of results at the Local Government centres, rather he pleaded non collation of results at the unit and ward level. Counsel submitted that it is trite law that pleadings delimit and determine the scope and province of the legal ring for parties to prosecute and defend their respective case. It is the foundation of the success or failure of a case. He cited KALU v. UZOR (2006) NWLR Pt. 981 Pg. 66 at 87 A-D:
“It is also trite law that parties are bound by their pleadings and will not be allowed to set up in court a case which was at variance with the pleadings.” See EHIMARE v. EMHON-YON (1985) 1 NWLR Pt. 1 Pg. 177; OCHOMMA v. UNOJI Pt. 165 NMLR 321. Also in BAMGBOYE v. OLANREWAJU (1991) 4 NMLR Pt. 184 Pg. 132.”
Counsel argued that since the Appellant could not prove that there was no voting or collation of results at the base of the pyramid, it stands to reason that he did not prove non collation at the apex of the pyramid. He cited AWUSE v. ODILI (2005) 16 NWLR Pt. 952 Pg. 416 at 488. He finally submitted that a court should order nullification of an election only where there is proof that a fundamental breach of the electoral laws had occurred which resulted in substantial non-compliance and which affected the result of the election. He cited BUHARI v. OBASANJO (2005) 12 NWLR Pt. 941 Pg. 1 at 308 and BUHARI v. INEC (2008) 4 NWLR Pt. 1078 Pg. 546 at 661-662.
My Lords, the 1st Respondent in this appeal had filed a petition and prayed as follows:
“12) WHEREFORE your Petitioner prays that it may be determined that the 1st Respondent was not duly elected or returned as member of House of Representatives representing Awka North/South Federal Constituency in that:
i) The 1st Respondent was not qualified to contest the election into the National Assembly for Awka North/South Federal Constituency.
ii) The election was invalid by reason of noncompliance with provisions of the Electoral Act 2006 which substantial (sic) infested and afflicted the purported return or election of the 1st Respondent.
AND THE PETITIONER FURTHER PRAYS that:
i) The election of the 1st Respondent be nullified.
ii) The 2nd-5th Respondents ordered by this Tribunal to conduct fresh election in the Awka North/South Federal Constituency in accordance with the Electoral Act, 2006.”
The averments relied on which are relevant to this appeal are on page 10 of the records and paragraph 7 of the petition. They are set out below:
“7(vii). There was no collation of results at ward collation distribution centres in any of the afore stated 34 wards in Awka North/South Federal Constituency.
7(viiii). The Electoral Officers for Awka North Local Government Area and Awka South Local Government returned from 2nd Respondent State Headquarters at about 2pm-3pm on 21st April, 2007. Distribution of materials to the wards was about to commence when it was discovered that there was no result sheets for the polling units and ward collation centres/distribution centres.
(ix) There was heated argument and up till 6pm to 7pm no election could take place at the polling units.
(x) Yet the results of the election supervised in the house of the 1st (Respondent and coordinated by the 1st Respondent was produced and formed the basis for the declaration of the 1st Respondent winner of the election.”
The main thrust of the argument of learned senior counsel for the Appellant and counsel for the 2nd-74th Respondents is that the 1st Respondent never pleaded specifically that no collation took place at the Local Government level whereas the Tribunal concluded that the date put on the Local Government result sheet Form EC8C showed that it was a document executed after the date collation should have taken place.
It is my humble view that the pleading of the 1st Respondent as petitioner was adequate to put the Appellant on notice that the lack of collation of the result and unavailability of result sheets were issues in contention. Paragraph 7(2)(a)(xvi) at page 11 of the record of appeal shows that the 1st Respondent pleaded as follows among other similar pleas 7(2)(a)(xvii).
“The returns made by the Federal Constituency Returning Officer for Awka North/South Federal Constituency was not made in compliance with the Electoral Act.”
Paragraph 8(L) of the petition at page 12 of the record of appeal –
“No result was announced at ward collation centres or by the Returning Officer at the Federal Constituency collation centres as the result or scores of the candidates on 21st April, 2007 and up till now save the result as entered in the website of the 2nd Respondent and down loaded by the Petitioner.”
With the greatest respect, I cannot bring myself to agree with the argument of senior learned counsel for the Appellant that the 1st Respondent did not adequately plead that there was improper collation at all levels of the election process. It is pertinent to note that in pleadings, it is the fact not the evidence that is pleaded.
The other argument propounded by the Appellant and the 2nd -74th Respondents is that the Tribunal having held that the 1st Respondent could not prove non-voting and non collation at the polling unit and ward level, therefore, the Tribunal should have found that what happened at these levels also happened at the Local Government Collation Centre.
The Tribunal found, and there is no debate about this finding, that Exh. RR328 which is Form EC8C – the Awka South Local Government collation of result form shows that the local government result was dated 22/4/07. The Tribunal also found that Exh.RR330 in Form EC8E(iii) which is the declaration of result for the whole Awka North/South Federal Constituency was dated 21/4/07. The Tribunal held that Exh. RR328 backed by the evidence of PW6 who gave evidence of no collation in Awka South Local Government showed that the results of the election was declared before the completion of collation in Awka South/North Constituency. The Tribunal concluded that it was highly irregular and that there was no evidence before the Tribunal to explain or clarify the apparent conflict in the documentary exhibits and nullified the election on that basis.
Let us look at the implication of the controversial Exh. RR328. It is supposed to be the Awka South Local Government collation of result Form. It should ordinarily be dated 21/5/07 because INEC and the Appellant claim that the result for the Constituency was declared on that day. However, inexplicably it bears the date of 22/5/07. Exhibit RR328 bore the date of 22/4/2007 as the date it was made when the result was declared on 21/4/2007.
The law is that all documents are presumed to have been made or written or executed on the date or dates shown on them. See Onu JCA (as he then was) in OTTIH v. NWANEKWE (1990) 3 NWLR Pt. 140 Pg. 550 at 563. If a document is not dated or wrongly dated the reason for the wrong dating must come from evidence of the maker. See M/S O. ILEMOBOLA CO. LTD. v. GOV. KADUNA STATE (2007) 7 NWLR Pt. 666 Pg. 633.
There is no doubt that this is a case of non-compliance with the provisions of S.74 of the Electoral Act. See EZIKE v. EZUGWU (1992) 4 NWLR Pt. 236 Pg. 462. The big question is how substantial is this non-compliance.
The Appellant has insisted that the 1st Respondent did not prove how the discrepancy affected the outcome of the election to warrant an annulment of the election in that Local Government. He cited BUHARI v. INEC (2006) 4 NWLR Pt. 1078 Pg. 546.
There is no escape from the fact that Exh. RR328 bears the date after the result of the election was declared. 1st Respondent’s counsel urges the view that the implication or presumption of this is that the collation at the Awka South Local Government Collation Centre was not the basis for the return of the Appellant as the winner of the election. I agree that one of the bricks or stages of the electoral ladder could not stand the test of credibility. The Supreme Court’s decision in BUHARI v. INEC is very relevant in the circumstances of this case. In BUHARI v. INEC (2008) 19 NWLR Pt. 1120 Pg. 246, the Supreme Court by a majority of four to three held that even though the petitioner proved non-serialization of the ballot papers which all the Judges agreed was a serious infraction of the Electoral Act 2006, he failed to prove how the infraction substantially affected the result of the election and the petition must fail. This was the previous collective stand of the Supreme Court in BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1.
The 1st Respondent could not prove any substantial malpractice at the polling unit level and ward level where votes were cast and collated.
The Tribunal held at pages 1485-1486 of the record thus:
“First on the issue of no election on account of failure to supply voter’s register and result sheets, it is important to note that the proof of no voting can only succeed where the petitioner lead evidence of registered voters who were not able to vote and who must tender their unmarked voters cards…………
What do we have here? Apart from the evidence of PW1 which is discredited, PW16 the petitioner and PW17 which is also discredited there is no other evidence of any registered voter. Moreover, the petitioner did not tender the voters register but choose to rely in the case of Prince Amgbare (supra) that the petition of the law has now been changed by the that decision. We respectfully disagree with the petitioner on his issue. Prince Amgbare’s case did not state that INEC has a duty of producing the voters register and moreso, in Amgbare’s case a prima facie case was made out by the petitioner. We therefore hold that Amgbare’s case is not applicable to this petition. Refer to DANGOTE v. CIVIL SERVICE OF PLATEAU STATE (221) 9 NWLR Pt. 717 Pg. 13.”
On the issue of supply of result sheets and voter’s register to the polling units, the Tribunal held:
“On the non supply of result sheets and voter’s register to the polling units, we are of the view that to succeed the petitioner needs to call evidence of persons directly on the field i.e. polling rations…. The only evidence of the polling agent is the evidence of PW17 who have been seriously discredited and whose evidence has been adjusted (adjudged) to be unreliable.” See page 1488 of the records.
It is evident from the decision of the Tribunal as set out above that on the issue of no election and none supply of result sheets and voters register, the petitioner did not establish that voting did not take place at the booths nor that collation did not take place at the wards for the reason that voters and polling agents who were witnesses to the events at the Polling units and Ward Collation Centres were not called and that the witnesses called were not eye witnesses at the event and merely purveyed what they were told.
With respect to the averments that there was no election or recording of votes at the polling centres and collation at the wards, the Tribunal made very clear findings that the burden on the petitioner to establish the irregularity of the votes cast and results recorded at the polling centres and collated at the wards collation centres was not discharged. The presumption of regularity placed by law in the results at the polling centrres and wards in Awka South as shown in Exhibits EE 126-RR303, RR331-RR466 and RR304-RR326 were never rebutted and the results declared and recorded in all the polling stations and ward collation centres were found by the Tribunal to be authentic and correct.
In BUHARI v. INEC at Pg. 364-369, the Supreme Court per Niki Tobi JSC in interpreting S. 146(1) of the Electoral Act placed a very heavy burden on the Petitioner in an election petit;on. S.146(1) of the Electoral Act provides as follows:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the election.”
S.16(1) of Electoral Act places a two fold burden on the petitioner. He has to satisfy the Tribunal that the non-compliance occurred and was substantial. He also has to satisfy the Tribunal that the result of the election was affected. See AGBAJE v. FASHOLA (2008) 6 NWLR Pt. 1082 Pg. 90 at Pg. 134.
After proving the non-compliance, the petitioner is obliged to go further to prove that the non-compliance substantially affected the outcome of the election. It is after the petitioner has discharged this burden, that the 1st Respondent is obliged to rebut it by proving that the non-compliance did not affect the result of the election. See BUHARI v. INEC supra.
In this case, apart from the date on Exh. RR328, there is no other evidence acceptable to the Tribunal which proved that the election was improperly conducted. The electorate apparently voted and their votes were collated at the polling unit and the ward level, there being no cogent evidence to the contrary as found by the Tribunal.
Let us consider if there is evidence that the discrepancy in date on Exh. PP328 materially affected the result of the election. The 1st Respondent’s argument is not that he has lost votes as a result of Exh. RR328 but that no collation took place even though people voted. The attitude of this court might have been different if the 1st Respondent alleged that between the ward collation in Forms EC8B and the Local Government Collation in EC8C, there was a difference in figures which were to his detriment. He did not claim to have won the election but wanted an annulment of same.
The law is that an order of nullification of an election is not expected to be made by a Tribunal without clear, positive, credible and overwhelming evidence led to the effect that such conduct was in breach of major and very fundamental provisions of the Electoral Act. See BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at Pg. 308. In this case, the Tribunal discredited most of the witnesses called by the 1st Respondent and found most of the grounds on which prayer for nullification due to electoral practices was based unproven. I do not think the apparent lack of credibility attached to Exh. RR328 without more is substantial enough to nullify the election in Awka South Local Government. Niki Tobi JSC in defining the word “appears” in S.146 of the Electoral Act held that: “It means in the con that the Tribunal or court has a particular idea or feeling about the conduct of the election based on the generality or totality of the activities of the election.” See BUHARI v. INEC SUPRA at pages 367- 368 NWLR. I must say it appears to me that there is no substantial evidence to base any finding that the election in Awka South Local Government was not conducted in accordance with the provisions of the Electoral Act. I cannot agree with the view urged by 1st Respondent’s counsel that Exh. RR328 being defective in date means that the collation in Awka South did not form the basis of the return of the Appellant. This court held that where there are conflict in entries on the various electoral forms, the entries in Forms EC8A and EC8B are to be preferred being the basis of the electoral process on which other actions are bared. See NJIOKWUEMENI v. OCHIE (2004 15 NWLR Pt. 895 Pg. 196 at 235.
The basis of the return of the Appellant in Forms EC8A, EC8B and EC8D were not successfully challenged. A brick missing in this case cannot imply the collapse of the pyramid. The foundation of the electoral pyramid Forms EC8A and EC8B having not been successfully challenged, and the 1st Respondent having not proved precisely how the non-compliance materially affected the outcome of the election, I am bound to conclude that the petition should have failed on that ground.
Assumptions of the negative impact of non-compliance cannot be imported into an election process particularly in the circumstances of this case. The defect in Form EC8C does not automatically mean the whole election was defective. The decisive issue being resolved in favour of the Appellant, the appeal succeeds.
CHIEF GODSON C. EZENAGU v. MR. EMMAUNEL UCHIEZE
The Appellant in this case Chief Godson C. Ezenagu is appealing against part of the judgment of the Tribunal which was delivered on 9/6/08 wherein the Tribunal allowed the petition in part, nullified the election in Awka South Local Government and set aside the return of the 1st Respondent. The facts which led to this appeal are as follows:
The Appellant as the Petitioner and candidate of All Progressives Grand Alliance (APGA) in the election of 21st April, 2007 into the House of Representatives for Awka North and Awka South Federal Constituency, dissatisfied with the conduct of the said election of 21st April 2007 filed a petition against the Respondents.
The Appellant filed the petition on the following grounds:
(a) Non-qualification of the 1st Respondent to contest the election into the National Assembly for Awka North and South Federal Constituency under the Electoral Act 2006 and under the 1999 Constitution of Nigeria.
(b) The election was invalid by reason of being fraught with numerous non-compliances with the provisions of the Electoral Act, 2006, non-provision of result sheets in the appropriate forms for the conduct of the election at the polling units, non-provision of election materials and other irregularities that marred the election and rendered the election of 21st April invalid, null and void.
(c) The votes allegedly scored by the 1st Respondent was not a product of the election as no votes were cast or entered in the results in the purported election of 21st April, 2007 which was in fact and in law not conducted as required by law at the polling units/stations and votes not cast by registered voters at the polling units/stations and votes not cast by registered voters at polling units were awarded to the 1st Respondent as winner of the said election by the 2nd-4th Respondents. See pages 7-9 of the record of appeal.
The Appellant’s brief dated 10/9/08 was filed on 11/9/08. The 1st Respondent’s brief dated 3/11/08 was filed on 4/11/08. The 2nd-77th Respondents’ brief dated 2/10/08 was filed on same day.
ISSUE ONE
In this consolidated judgment, I am of the view that CA/E/EPT/63/08 has adequately resolved to finality the complaints raised in paragraphs (b) and (c) and the issues 3-7 adumbrated by Appellant’s counsel. Thus the relevant and remaining issues for determination are Issues 1 & 2 distilled by Appellant’s counsel.
The 1st Respondent’s counsel adumbrated the same issue as No. 1. Learned counsel for the 2nd-77th Respondents also adopted the issue as the first issue for determination. I will adopt the 1st and 2nd issues in the terms as submitted for determination by Appellant’s counsel as follows:
“1. Whether the Tribunal was justified in holding that the petitioner did not discharge the burden of proof of his claim that the 1st Respondent submitted fake certificates to INEC and swore to a false affidavit Grounds 1, 2 and 3.
2. Whether the Tribunal have not breached the rules of fair hearing by failure to consider the issue of qualification of the 1st Respondent based on S.65 of the 1999 Constitution of the Federal Republic of Nigeria (Ground 4).”
Learned Appellant’s counsel Mr. O. J. Nnaji argued that the Appellant pursuant to paragraph 7(1) (a) (b) (i) to (ix) of his petition led evidence to prove that the 1st Respondent did not have the qualifications he claimed he had. Counsel also argued that the nomination form the 1st Respondent filed contained false information, the Appellant tendered inter alia exhibit PP15 which is PDP nomination form.
Learned Appellant’s counsel submitted that the 1st Respondent did not deny that Exh. PP15 was made nor deny that it was submitted to PDP and INEC. Paragraph 11 of the 1st Respondent reply at page 604 of the record clearly shows his written deposition as follows:
“The 1st Respondent obtained genuine School Certificate and did not submit any fake results. The 1st Respondent shall rely on the results and other documents relating to his educational pursuits.”
Counsel argued that the 1st Respondent never denied the existence of Exh. PP15. Counsel further submitted that it is the law that evidence procured from cross examination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevance and relevance is the heart of admissibility in the law of evidence. See GAJI v. PAYE (2003) 14 NWLR Pt. 823 Pg. 582. In DAGGASH v. BULAMA (2004) 14 NWLR Pt. 894 Pg. 144 and 241, Appellant’s counsel argued that it is clear that by the 1st Respondent’s confession under cross examination, he did not possess the qualifications he claimed in exhibit PP15. Counsel argued that the nomination of the 1st Respondent based on exhibit PP15 was not disputed and that the submission of exhibit PP15 was not in issue at all. He submitted that it is settled law that courts must decide a case based on the pleadings and evidence led before the court. He cited ORIZU v. ANYAEGBUNAM (1978) 5 SC Pg. 21; EMEGOKWUE v. OKADIGBO (1973) 4 SC Pg. 113; BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 and NGIGE v. OBI (2006) 14 NWLR Pt. 999 Pg. 1.
Counsel argued that the Tribunal was wrong when they held that documents particularly Exh. PP15 was part of the document dumped on the Tribunal with no nexus shown as to its relevance. Counsel argued that the case of TERAB v. LAWAN (1982) 3 NWLR Pt. 231 Pg. 569 relied on by the Tribunal is not applicable to the facts of this case as the Appellant tendered exhibit PP15 in support of paragraph 7 (1) (a) B (i) to (ix) of his pleading and written deposition.
Counsel relied on ARABAMBI v. ADVANCED BEVERAGES INDUSTRIES LTD. (2005) 19 NWLR Pt. 959 Pg. 1 at 29 to the effect that the Tribunal was entitled and indeed obliged to examine the documentary exhibits in chambers with a view to making findings of fact in respect thereof.
Counsel also submitted that the Appellant pleaded that the 1st Respondent was not qualified under the 1999 Constitution of the Federal Republic of Nigeria as well as under the Electoral Act 2006 to contest the election into Awka North and Awka South Federal Constituency. On the 2nd issue, counsel argued that even though the Tribunal was copiously and distinctively addressed on the issue of qualification or non-qualification of the 1st Respondent under the Electoral Act 2006 and under section 65 of the 1999 Constitution in the written addresses of the parties, yet the Tribunal failed, refused and neglected to decide the issue of section 65 of the 1999 Constitution in the judgment of the court.
Counsel submitted that the refusal of the Tribunal to decide squarely and conclusively on Section 65 of the 1999 Constitution led to a miscarriage of justice and breach of right of fair hearing of the Appellant. Counsel submitted that at this stage this court is not concerned with whether or not the Appellant made out a case of breach of Section 65 of the 1999 Constitution of Nigeria as urged on the Tribunal by the Appellant, the issue before the court now is whether it was not a breach of the right of fair hearing of the Appellant for the Tribunal not to have considered Section 65 of the 1999 Constitution in its judgment by relying on the issue of false affidavit raised under Section 32 of the Electoral Act 2006 to hold that the Tribunal will not consider disqualification of the 1st Respondent under Section 65 of the 1999 Constitution of Nigeria.
Learned counsel for the 1st Respondent Dr. Onyechi Ikeazu SAN argued on the first issue that the arguments of learned Appellant’s counsel are unfounded on the facts before the Tribunal. Senior counsel argued that the 1st Respondent had tendered relevant documents in proof of his qualifications to contest the election. Senior counsel argued that contrary to the provisions of S.32(4) of the Electoral Act 2006 specifying the venue to challenge the information given by way of affidavit by a candidate, the Appellant challenged the 1st Respondent before the Tribunal. Senior counsel argued that S.32(5) specifically states that only the High Court of a State or the Federal High Court can disqualify on grounds of giving false information in nomination papers.
Senior counsel argued that in the instance case, the Appellant ought to have challenged the 1st Respondent’s affidavit at the High Court or before the independent National Electoral Commission; and not at the Election Tribunal which had no jurisdiction to hear the Appellant’s complaint of false sworn declaration by the 1st Respondent. Senior counsel also argued that in so contending, Appellant pretends that Exh. PPl5 is the affidavit envisaged by Section 32 of the Electoral Act, 2006. He then submitted that this pretension is clearly not correct for the reason that Exh. PP15 is not an INEC document. Most certainly the documents envisaged by Section 32 are INEC Forms CF001 and CF002 of which the Court of appeal is by virtue of Section 74(1) (a) of the Evidence Act enjoined to take judicial notice of. He cited ADENE v. DARITUNBU (1994) 2 NWLR Pt. 328 Pg. 509 at 532; KAIGAMA v. NNAMANI (1996) 4 NWLR Pt. 441 Pg. 162 at 169.
Senior counsel further argued that the document tendered by the appellant must be a Certified True Copy of the document submitted to INEC. Counsel argued that Exh. PP15 is a PDP document and not the documents forms CF001 and CF002 envisaged by S.32 of the Electoral Act. Counsel argued that issues were joined on the pleadings and the burden was on the Appellant to prove the documents on which INEC’s clearance of the 1st Respondent was based. Counsel argued that the Appellant having not tendered documents which emanated from INEC, the onus did not shift on INEC to rebut the case put up by the Appellant, thus the failure of INEC to file statements on oath in reply is irrelevant.
Senior counsel also argued that even though the Appellants’ did not establish their case on this issue, so as to shift the burden to the Respondents to call evidence in rebuttal, the 1st Respondent proceeded to give evidence establishing that the 1st Respondent was duly qualified at the time of the election to contest the said election. In proof of his qualification the 1st Respondent tendered as Exh.RR116, a report of the Anambra State Ministry of Education’s investigation, made upon the complaint that the 1st Respondent did not sit for the 1st School Leaving Certificate at Central School Achalla. From the said report, it is clear that the 1st Respondent duly sat for the 1st School Leaving Certificate Examination at Central School, Achalla, and thus satisfied the requirement of the provisions of S.65 and S.318 (c) of the 1999 Constitution. Also relevant to this issue are exhibits 121, 122, 123, RR117, 118 119 and 120 which are all conclusive of the fact that the 1st Respondent was educated up to secondary school certificate level and indeed obtained that certificate before the election thus satisfying the provisions of S.65 and S.318(a) and (b) of the 1999 Constitution. Senior counsel argued that it was not a matter of denial of fair hearing because the Tribunal made a determination that no competent evidence was placed before the court to justify a constitutional disqualification.
Learned counsel for the 2nd-77th Respondents argued that Exh. PP14 the PDP nomination form and Exh.PP15 – PDP expression of interest form are documents which deal with party primaries of the PDP. These documents were not submitted to INEC. They were exclusively party forms which had nothing to do with INEC.
Counsel further argued that Exh. PP14 and PP15 heavily relied on by the Appellant were not the completed nomination forms nor affidavit of personal particulars, first collected from INEC nor the one submitted to INEC by the sponsoring party. Counsel argued that since the Appellant sought for nullification of the election on the basis of his pleadings, he must prove the pleadings and not rely on the fact that the 1st Respondent did not deny that Exh. PP15 was made. Counsel also argued that the case before the Tribunal on which issues were joined and on which a pronouncement was made was whether the 1st Respondent submitted fake certificates or made false declaration to INEC contrary to S.32 of the Electoral Act.
Counsel submitted that the issue of construction of Section 65 of the 1999 Constitution was never the core issue, rather the Tribunal was addressed on the issue of non-compliance with Section 32 of the Electoral Act, 2006. The Tribunal appraised and assessed the evidence led and made a finding that the Petitioner did not make out a prima facie case. It is the written law that the court should desist from raising new frontiers in the battle by the parties to a cause. What the parties have pleaded at the trial court should dictate what the court must adjudicate upon. He cited BAMGBOYE v. OLAREWAJU (1991) 4 NWLR Pt. 184 Pg. 132, 144E-G.
I have carefully considered the arguments of learned counsel. The Appellant in his petition before the Tribunal pleaded as follows on pages 7-8 of the record:
In respect of the non-qualification of the 1st Respondent as stated in Ground 6(a) of the petition, the Appellant pleaded in paragraphs 7(i) (a) (b) (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) thus:
(i) The 1st Respondent submitted certificates to the Independent National Electoral Commission claiming that the 1st Respondent sat for West African School Certificate (WASC) when the 1st Respondent did not sit and has not sat for West African School Certificate or such equivalent Certificate.
(ii) The 1st Respondent did not pass Primary Six and has no First School Leaving Certificate, yet the 1st Respondent stated on oath that he has First School Leaving Certificate.
(iii) The First School Leaving Certificate Examination number relied upon by the 1st Respondent does not belong to the 1st Respondent. The 1st Respondent has no slip of such attempted examination.
(iv) The 1st Respondent did not sit and has not sat for any First School Leaving Certificate Examination and if indeed the 1st Respondent sat for the First School Leaving Certificate, the 1st Respondent failed the First School Leaving Certificate Examination.
(v) The 1st Respondent never took 9 (nine) subjects or any subject at all in any Senior School Certificate Examination as alleged by the 1st Respondent as well as stated by the 1st Respondent on oath in the forms submitted by the 1st Respondent to the 2nd Respondent and Peoples Democratic Party.
(vi) The 1st Respondent did not attend and or study the subjects at Ikosi Methodist High School, Agbowa-Ikosi as the 1st Respondent claimed he studied. The 1st Respondent did not sit for any West African School Certificate at all at Ikosi Methodist High School, Agbowa-Ikosi Lagos State.
(vii) The 1st Respondent never sat for Senior Secondary School Examination or WASC or its equivalent at all. The 1st Respondent has no examination nor for any attempted examination or slip to show he sat for the examination but failed.
(viii) The 1st Respondent was recommended to be disqualified from contesting the said election by even the PDP, but surprisingly, the 1st Respondent bulldozed his way and contested the said election,
(ix) The 1st Respondent does not have the minimum educational qualification prescribed by the 1999 Constitution of the Federal Republic of Nigeria to enable him contest for or hold the office as member of the National Assembly/House of Representatives for Awka North and Awka South Federal Constituency. The petitioner shall rely on examination records of the relevant educational authorities at the trial of this petition.
The 1st Respondent in his reply to the petition at page 591 of the record of Appeal in response to paragraph 7(a) (b) (i) to (ix) stated thus:
“The 1st Respondent denies paragraph 7(i) (a) (b) (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) and (ix) of the petition and puts the Petitioner to the strictest proof thereof. In further answer thereto the 1st Respondent reiterates that he was duly qualified to contest the election having obtained the requisite qualification and shall rely on relevant certificates with respect to his educational attainment. The Petitioner is clearly fishing and totally wrong in his pleaded theory.”
Let us consider the pronouncement of the Tribunal at pages 1469-1478 on this issue in the con of all the arguments of the learned counsel:
“On the above, it is our humble view that since the issue of non-compliance with S.32 of the Electoral Act arises when the 1st Respondent is already in occupation of the office, either the State High Court not the Federal High Court have the jurisdiction to say the matter jurisdiction is exclusively vested on the Tribunals after election has been conducted. The case of OGBEIDE V. OSULA (supra) stands on its own; we will rather follow the recent decisions decided under the 2006 Act.
Going back to the issue at hand; it is the conclusion of the petitioner that the 1st Respondent submitted certificates to the 2nd Respondent claiming that he has sat for WAEC when the 1st Respondent did not. See paragraph 7(i) of the petition. But what evidence do we have on this allegation. The petitioner led evidence almost verbation with his petition and under cross-examination which run thus, the 1st Respondent states:
Q: Did you pass the First School Leaving Certificate which you alleged you took in 1977?
A: No, but I sat for it.
Q: So it is correct to say that you did not obtain First School Leaving Certificate in 1977?
A: That’s what it should be.
Q: You do not have the secondary school certificate by the year 2005?
A: No, I don’t have it.
Q: You did not also have senior school certificate by the year 2005?
A: I sat for the examination I did not have the certificate as at 2005.
Q: What about Vintage College you took the subjects mentioned in exhibit PP18?
A: No.
The 1st Respondent stated under cross-examination by counsel to the 2nd-73rd Respondents that he sat for his First School Leaving Certificate in 1977, he attended both Ikosi Methodist School and Vintage College Lagos to prepare himself for WAEC and he sat for WAEC as an External Candidate.
The petitioner also tendered various exhibits but placed heavy reliance on exhibits PP14 and PP15. Exhibit PP14 is a PDP form for primary elections while exhibit PP15 is yet another PDP nomination form. In both exhibits the 1st Respondent have stated the qualification he has to include First School Leaving Certificate Continuing Education Certificate and Senior School Certificate.
Now S.32(1) of the Electoral Act provides that:
S.32 (1) every political party shall not later than 120 days before the date appointed for a general election under the provision of this Act, submit to the commission in the prescribed forms the list of the candidates the party progress to sponsor at the elections.
(2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of State, indicating that he has fulfilled the entire constitutional requirements for election into that office.
It follows therefore that where a political party decides to sponsor candidates for an elective post, it shall be submitted to INEC in the prescribed forms list of its candidate. Each candidate must also swear to an affidavit stating that he has fulfilled all the constitutional requirements for election into that office.
Learned counsels to the petition submitted in his address that Exh. PP15 was the document submitted to INEC by the PDP. With respect, we do not have any evidence oral or documentary to support such conclusion, for it is not shown that Exh. PP15 upon which heavy reliance was placed by counsel was ever submitted to INEC by the 1st Respondent’s political party. Exhibit PP15 is indeed a certified true copy of a public document, we have noted that the certification was done by an Asst. Chief Registrar, High Court Awka, we are not saying that he cannot certify documents, but what the petitioners sought to do is to establish by evidence that Exh. PP15 was filed by the 1st Respondent to the commission and this they failed to do. In TERAB v. LAWAN & ORS. (1992) 3 NWLR Pt. 231 Pg. 569 at 590 the court observed that:
“… a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspect of the case for a party when that party has himself not done so.”
Also in the case of ALAO v. AKANO & ORS (2003) 22 NSCQR Pt. 2 Pg. 867 at 884 the Supreme Court observed that:
“……..But is must borne in mind that admitted documents useful as they could be would not be of much assistance to the court in the absence of admissible oral evidence by persons who can explain their purport.”
We have earlier on stated that there is no evidence led in proof of the fact that Exh. PP15 which is the nomination form is ever submitted to the 2nd Respondent. Moreso, S.32(2) of the Electoral Act, 2006 talks of affidavit to be filed by the candidates. We cannot speculate as to what document was submitted to INEC in the absence of any evidence. It is not our duty to do so. In ADEPELE v. AKINTOLA (1986) 5 NWLR Pt. 42 Pg. 448 at 456, it was observed that:
“If an applicant requires the court to exercise its discretion, all the documents which will be necessary for the court to see in order to decide on the application must be established before the court.” See also GBAJOR v. OGUBUREGUI (1961) 1 ALL NLR 853.
In the absence of credible evidence showing that Exh. PP15 was submitted to the 2nd Respondent in furtherance of the 1st Respondent’s nomination, we hold that a breach of S.32 of the Electoral Act, 2006 is not made out by the petitioner.
We can only delve into the issue of whether the 1st Respondent was qualified under S.65 of the 1999 Constitution if there was proof of an infraction on S.32 of the Electoral Act, 2006. In the absence of such proof the issue of non-qualification cannot be effectively determination on the contents of exh. PP15.
We cannot also delve into the issue of perjury or lying on oath because of the absence of original criminal jurisdiction.”
Even though I agree with 1st Respondent’s counsel that the Tribunal had no business delving into the issue of nomination under S.32 of the Electoral Act, and I will give fuller reasons anon, I must say by way of digression that I cannot fault the reasoning of the Tribunal that the Appellant did not prove that Exh. PP15 was the document submitted to INEC for the nomination of the 1st Respondent. There is no doubt that Exh. PP15 was made by the 1st Respondent. Also there is high probability that he perjured himself therein. The appropriate court is only obliged to find out and to penalize him for the perjury and to disqualify him from contesting if the document was a deposition/affidavit made by him pursuant to his nomination by his party to INEC as a candidate for an elective post. That is the purpose of S.32 of the Electoral Act. I am obliged to agree with learned counsel for the 1st Respondent that the admissible evidence of high probative value to prove allegation of false affidavit and statement is a Certified True Copy of the affidavit and statement submitted to INEC subpoenaed from INEC’s custody. The Exh. PP15 stands alone as a document on which the 1st Respondent may be prosecuted for perjury in a criminal court.
On the issue of qualification which is the gravamen of the case of the Appellant on this issue at the lower court, and who has jurisdiction to try the different specie of disqualification, I must admit that there have been conflicting decisions of this court on this issue. However, it appears to me that in the recent past this court has become ad idem on the issue. A candidate can face disqualification for a variety of reasons. There may be the issue of outright non-qualification for that specific elective office by virtue of the provisions of the 1999 Constitution. That was the allegation made by the Appellant against the 1st Respondent in paragraphs 6(a) and detailed in paragraph 7 (i) (b) (ii)-(ix) of the petition on page 7-8 of the record.
There is no doubt that when an issue of non-qualification under the Constitution arises, it can be tried by the Tribunal. In SAIDU v. ABBUBAKAR (2008) 12 NWLR Pt. 1100 Pg. 201 at 265 this court held that a petitioner can only succeed in a complaint founded on S. 145(1) (a) of the Electoral Act, 2006 if he alleges facts amounting to a constitutional bar and does not include failure to comply with the provisions of sundry sections of the Electoral Act. See also TSOHO v. IBRAHIM YAHAYA (1999) 4 NWLR Pt. 600 Pg. 657 at 671-672. Thus the Tribunal was wrong to have refused on page 1478 of the record to consider the issue of whether the 1st Respondent was qualified to contest the election under S.65 of the 1999 Constitution. The Tribunal erroneously held that it can only delve into the issue of a constitutional bar if there was proof of an infraction under S.32 of the Electoral Act.
Another area where a candidate can face disqualification is for failure to meet the requirements of the 2006 Electoral Act. This was the allegation made against the 1st Respondent by the Appellant in paragraph 7 (1) (b) (i) of the petition at page 7 of the record.
This court stated unequivocally in AC v. INEC (2007) 18 NWLR Pt.1065 Pg. 50 at Pg. 73 as follows that –
“The issues of disqualification, nomination, substitution and sponsorship of candidates for an election precede elections and are therefore pre-election matters.”
See also the Supreme Court in UGWU v. ARARUME and AMAECHI v. INEC (2008) 5 NWLR Pt. 1080 Pg. 227 at Pg. 310-311 and Pg. 314 and 334; ODEDO v. INEC (2008) 17 NWLR Pt. 1117 Pg. 554 at Pg. 673.
The basic canon of interpretation is that a statute must be interpreted as a whole. S.32(4) of the Electoral Act provides that any complaint against the contents of the affidavit attached to the nomination of a candidate as stipulated under S.32(2) of the Act must be ventilated at the High Court of a State or the Federal High Court. See OBOT v. ETIM (2008) 12 NWLR Pt. 1102 Pg. 754 at 777; BON v. AKPAN (2008 17 NWLR Pt. 1087 Pg. 449; ANPP v. USMAN (2008) 12 NWLR Pt. 1100 Pg. 1 at Pg. 55 which followed IBRAHIM v. INEC (1999) 8 NWLR Pt. 614 Pg. 334 at Pg. 351. Thus, I am of the view and I agree with learned counsel for the 1st Respondent and the 2nd-74th Respondents that the Tribunal should not have considered the complaint posed by the petitioner in paragraph 7(1 )(b) (i) of the Petition at page 7 of the record.
ISSUE TWO
Issue 2 deals with the point being made by the Appellant that the failure of the Tribunal to consider whether the 1st Respondent was not qualified under S.65 of the 1999 Constitution did not amount to lack of fair hearing. I have looked at the notice of appeal and the issues as formulated by the Appellant’s counsel. Fair hearing in a court of law or any Tribunal entails that a litigant has been given every opportunity to present his case to an unbiased Tribunal. A party can only claim lack of fair hearing when the two pillars of justice – audi alterant partem or nemo judex in causa sua have been breached. That is not the allegation here. The allegation is that the Tribunal did not adequately consider the issue of the lack of constitutional qualification of the 1st Respondent to be a candidate at the election. Where a court of law or Tribunal has arrived at a wrong decision due to failure to properly consider a question of law or fact, the allegation of unfair hearing is not tenable. The choice open to a litigant is to appeal against that wrong decision or finding of the Tribunal. Thus lack of fair hearing – that is the breach of the rules of natural justice is different from lack of fair trial. See MOHAMMED v. KANO N.A. (1968) 1 ALL NLR Pt 424; GBADAMOSI v. ODIA (1992) 6 NWLR Pt. 248 Pg. 491. I do not think the Appellant has in any way proved lack of fair hearing. This issue is resolved against the appellant.
Moreover, the question posed to this court and the grounds of appeal relating to the issue of qualification of the 1st Respondent relates only to a consideration of whether he should not have been disqualified by virtue of contravention of S.32 of the Electoral Act. From the notice and grounds of appeal, the appeal relating to the issue of constitutional bar of the 1st Respondent does not entail a prayer for this court’s review by way of rehearing the issue of whether or not the 1st Respondent was qualified under S.65 of the 1999 Constitution to be elected into the House of Representatives. The issue of lack of fair hearing has been dealt with above and resolved against the Appellant.
This is a consolidated appeal. In respect of the appeal No.CA/E/EPT/63/08, the appeal is allowed. In respect of appeal No.CA/E/EPT/63A/08 the appeal is unmeritorious and is hereby dismissed. In essence that part of the judgment of the Tribunal nullifying the election in Awka South Local Government being part of the Awka North/South Federal Constituency is set aside. The return by INEC is hereby validated. I make no order as to costs.
CONTRIBUTION
ABUBAKAR JEGA ABDUL-KAD1R, J.C.A.: I had a preview of the two consolidated Appeals of my learned brother Ogunwumiju, JCA with whom I entirely agree. Appeal No. CA/E/EPT/NA/63/2008 has merit, it therefore succeeds and I allow it.
Appeal No. CA/E/EPT/NA/63A/2008 lacks merit. I dismiss it.
I abide by the consequential Orders made in the lead Judgment.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgments just delivered by my learned brother, Ogunwumiju, JCA. I agree with the conclusions reached therein. I also abide with the consequential orders.
Appearances
O. Ikpeazu SAN;
O. Anumenye;
E. A. Nzeagwu;
A. AdeboyeFor Appellant
AND
O. J. Nnadi Esq;
C. C. Okaa;For Respondent
