MR. EYO NSA EKPO V. NKOYO ESU TOYO & ORS.
(2011)LCN/4899(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of November, 2011
CA/C/NAEA/250/2011
RATIO
SPONSORSHIP AND NOMINATION OF CANDIDATES: WHETHER THE SPONSORSHIP AND NOMINATION OF CANDIDATES TO CONTEST AN ELECTION IS THE DOMESTIC AFFAIR OF A POLITICAL PARTY
…the sponsorship of a candidate to contest an election is the domestic affair of a political party. See Balonwu vs. Chinyelu (1991) 4 NWLR (Pt.183) 30; Onuoha vs. Okafor (1983) 2 SCNLR 244. PER JOSEPH TINE TUR, J.C.A
APPEAL: WHAT AN APPEAL ENTAILS
An appeal is any proceedings taken to rectify an erroneous decision of a lower court or Tribunal by a higher or appellate Court or Tribunal. PER JOSEPH TINE TUR, J.C.A
INTERFERENCE OF THE COURT OF APPEAL: CIRCUMSTANCES WHERE THE APPEAL COURT MAY INTERFERE WITH THE FINDINGS OF THE LOWER TRIBUNAL
Where there is a wrong approach, wrong assumption or the onus of proof of a particular issue is cast on a wrong party, the court of Appeal or Tribunal may interfere with the decision by substituting a proper decision depending on the circumstances of each case. See Onobruchere vs. Esegine (1986) 1 NWLR (Pt.19) 799 at 807; sandy vs Hotogua 14 WACA 18 at 20; Enang vs Adu (1981) 11, 12 SC 25 at 42. For the above reasons an appellate Court or Tribunal must be furnished with the ruling of the lower Court or Tribunal to be able to determine the issues in controversy and arrive at a just decision. PER JOSEPH TINE TUR, J.C.A
DUTY OF THE APPELLANT: DUTY OF THE APPELLANT TO ENSURE THE ACCURACY AND COMPLETENESS OF THE RECORDS TO THE APPEAL COURT OR TRIBUNAL
It is the duty of the appellant to ensure the accuracy and completeness of the records forwarded from the lower Court or Tribunal’s Registry and to the Appeal Court or Tribunal. See Ajayi vs Omoregbe (t 993) 6 NWLR (Pt.301) 512 at 526; Obiamalu & Ors vs Nwosu (1973) 8 NSCC and Uwechua vs. Obi (1973) 8 NSCC 56. PER JOSEPH TINE TUR, J.C.A
ISSUE FOR DETERMINATION: ATTITUDE OF THE COURT TO ISSUES FOR DETERMINATION ARE COUCHED IN A HYPOTHETICAL OR ACADEMIC MANNER
The issue for determination by an appellate Court should not be couched in a hypothetical or academic manner but should flow from the judgment appealed against. Where that has happened the courts ought not to entertain such questions. See SaraKi vs. Kotoye (1992) 11 ‘E2’80” 12 SCNJ (Pt.1) 26 at 44; N.I. Corporation of Nigeria vs. Power Indust. Eng. Co. Ltd. (1986) 1 NWLR (Pt.14) 1 and N.N.S.C. vs. Sabana Ltd. (1988) 2 NWLR (Pt.74) 23. PER JOSEPH TINE TUR, J.C.A
ELECTION PETITION: WHETHER THE COURT OF APPEAL IS THE COURT OF LAST RESORT WITH RESPECT TO ELECTION PETITIONS EMANATING FROM TRIBUNALS AFFECTING THE SENATE, HOUSE OF REPRESENTATIVE OR HOUSES OF ASSEMBLY
Ordinarily, I would have refused to entertain this issue but for the fact that this is the Court of last resort in election petitions emanating from Tribunals affecting the Senate, House of Representative or Houses of Assembly. I shall therefore treat the issue as if the appellant is complaining that there was enough evidence to prove the petition which the Tribunal ignored but rather dismissed the petition. PER JOSEPH TINE TUR, J.C.A
FALSIFICATION OF RESULTS: ON WHOM RESTS THE ONUS OF REBUTTING THE PRESUMPTION THAT A DECLARED RESULT IS NOT AUTHENTIC OR CORRECT
There is presumption that the result declared by 2nd and 3rd Respondents is authentic or correct. The onus is on the appellant to prove otherwise. See Omoboriowo vs Ajasin (198s4) 15 NSCC 81 at 90; Nwobodo vs Onoh (1984) All NLR 1. The onus of proving falsification of results is on the petitioner and not the Respondents. See Sabiya vs Tukur (1983) NSCC 559 at 560; Atikpekpe vs Joe (1999) 6 NWLR (Pt.607) 428 at 442 – 443. None of the presiding officers or voters were called by the petitioner to testify and be cross-examined in order to establish the criminal allegations upon which the petition was founded. The onus of proving that the votes ascribed to the 1st Respondent by the 2nd and 3rd Respondents were false rested on the appellant. See Kingibe vs Maina (2004) FWLR (Pt.191) 1555 at 1588; Ogunderu vs Adebayo 1999 NWLR (Pt.608) 684. PER JOSEPH TINE TUR, J.C.A
Before Their Lordships
UZO I. NKUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
EKO EJEMBIJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
Between
MR. EYO NSA EKPOAppellant(s)
AND
1. NKOYO ESU TOYO
2. THE RESIDENT ELECTORAL COMMISSIONER CROSS-RIVER STATE (MR. MIKE IGINI)
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE PEOPLES DEMOCRATIC PARTYRespondent(s)
JOSEPH TINE TUR, J.C.A, (Delivering the Leading Judgment): The Independent National Electoral Commission (3rd Respondent) and the Resident Electoral Commissioner (2nd Respondent) conducted elections into the House of Representatives for Calabar Municipality/Odukpani Federal Constituency in Cross River State on 9th April, 2011. Though other candidates contested the election they are not concerned with this appeal. Mr. Eyo Nsa Ekpo of the Action congress of Nigeria (Petitioner/Appellant) polled 7,213 votes while Nkoyo Esu Toyo (1st Respondent) of the Peoples Democratic Party (4th Respondent) polled 23,298 votes and was returned as duly elected into the House of Representatives/Federal Constituency in question. Being aggrieved Mr. Eyo Nsa Ekpo presented a petition before the National and State Assembly Election Petition Tribunal sitting in Calabar, Cross-River State on 29-04-2011 on the following grounds:
GROUNDS OF PETITION
38. The election was invalid by reason of non-compliance with the provisions of Electoral Act, 2010 as Amended.
39. The 1st Respondent was at the time of the election not qualified to contest the election.
40. The petitioner scored the highest number of lawful votes cast but the 1st Respondent was declared winner. ”
The Petitioner sought the following reliefs:
“(a) A declaration that the election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency held on 9th 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 Representatives for Calabar Municipality and Odukpani Federal Constituency held on 9th April, 2011 is null and void.
(c) An order that a fresh election be conducted into Calabar Municipality and Odukpani Federal Constituency.
(d) A declaration that the 1st Respondent was not qualified to contest election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency
OR IN THE ALTERNTIVE
(a) A declaration that the petitioner scored the highest number of valid votes cast in election held on 9th April, 2011 in Calabar, Municipality and Odukpani Federal Constituency.
(b) A declaration that the petitioner was validly elected in election held on 9th April, 2011 in Calabar Municipality and Odukpani Federal Constituency.
(c) An order directing the 3rd Respondent to issue a Certificate of Return to the petitioner for the election held on 9th April, 2011 in Calabar Municipality and Odukpani Federal Constituency.
Only Nkoyo Esu Toyo (1st Respondent) filed a Reply petition to the petition traversing the averments upon which the petition was anchored. The 2nd to the 4th Respondents did not. The petitioner testified and called two witnesses. The 1st Respondent also testified. Learned counsel submitted written addresses and issues for determination. The Tribunal recognized two issues for determination namely, whether the petitioner had proved the allegation upon which the petition was founded and secondly, whether his right to fair hearing had been breached when the Tribunal struck out the depositions of the petitioners’ witnesses and disallowed the subpoenaed witnesses from testifying. The Tribunal dismissed the petition on the 29th day of September, 2011. On 11-10-2011 the appellant lodged an appeal to this Court against the dismissal of his petition on three grounds. His learned counsel distilled three issues for determination in the brief of argument filed on 21-10-2011 to wit:
(a) Whether the trial Tribunal was right having regard to the provisions of Sections 31, 32, 33, 34, 87 and 141 of the Electoral Act, 2010 (as amended) and Sections 65(2)(b) and 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and other extant laws when it held that allegations that the 4th Respondent did not conduct primaries to nominate the 1st Respondent for the election constitute pre-election matters.
(b) Whether the right of fair hearing of the appellant was not breached when this Tribunal struck out the witnesses listed in number 2 of 23 in the list of witnesses attached to the petition and disallowed the subpoenaed witnesses of the Tribunal from testifying during the trial.
(c) Whether the burden of proof in election petitions is static having regard to the peculiar nature of election petition proceedings.
The 1st Respondent identified the following issues for determination:
1. Whether the Tribunal was right to hold that allegations concerning the propriety of the 4th Respondent’s party primaries where the 1st Respondent was nominated as a candidate for the election were pre-election matters. (Ground 2 in Notice of Appeal).
2. Whether in the circumstances of this case the Tribunal was right to dismiss the Appellant’s complaint of lack of fair hearing. (Ground 3 in Notice of Appeal).
3. Whether the burden of proving the allegations contained in the petition was on the Appellant and if so whether that burden of proof was discharged. (Ground 1 in Notice of appeal).
The 2nd and 3rd Respondents filed a joint brief on 26/10/2011. They adopted the issues identified by the 1st Respondents. The 4th Respondent’s brief was filed on 25/10/2011. Learned counsel formulated the following issues for determination by this Court:
1. Whether the lower Tribunal has the jurisdiction to entertain issues of non-qualification of the 1st Respondent on grounds of nomination by the 4th Respondent as raised in the Appellant’s petition particularly paragraph 32 to 33 of the petition.
2. Whether the Appellant can complain that his right to fair hearing was breached after failing to appeal against the ruling of the lower Tribunal dismissing witnesses 2 and 3 but proceeded to apply for additional witnesses to testify on his behalf.
3. Whether the Appellant discharged the burden of proof placed on him at the lower Tribunal to entitle him to the reliefs sought.
On 26-10-2011 the learned Counsel to the appellant field a Reply brief. All the briefs were adopted by the respective Counsel when this appeal came up for hearing on 27-10-2011.
ARGUMENTS: ISSUE ONE
The crux of the argument by the learned Counsel to the appellant on issue one is that the 1st Respondent was not sponsored by a political party for the election of 9th April, 2011, citing Obakim & Anor. V. Agbaso & 4 Ors. (2010) 6 7 sc 85 AT 137; Section 65(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999; Section 87 of the Electoral Act, 2010; PPA & Anor vs. INEC & 3 Ors. (2010) 12 NWLR (Pt.1209) 70; Ugwu v. Ararume (2001) 9 NWLR (Pt.1253) 425; Igbeke vs. Emordi (2010) 11 NWLR (Pt.1204) 1. Learned Counsel submitted that the averment that the 1st Respondent was not sponsored by any political party not having been challenged by the 1st Respondent should not only have been believed by the Tribunal but the 1st Respondent had no locus standi to contest the election. Moreover, there was no proof that the Peoples Democratic Party (4th Respondent) conducted ward elections to nominate or elect a candidate for the purpose of the April, 9th 2011 elections. That the burden rested on the 1st Respondent to prove otherwise, citing Elemu v. Omolade (1968) NMLR 359); Atane vs. Amu (1974) 10 SC 237; Fashanu vs. Adekoya (1974) 6 SC 83; Kate Enterprises Ltd. v. Daewood (Nig.) Ltd. (1885) 2 NWLR (Pt.5) 116. Counsel argued that the proper time to challenge the qualification of the 1st Respondent to contest the seat was after the elections, citing Obasanjo vs. Yusuf (2004) 5 SC (Pt.1) 27 and Section 138(1) of the Electoral Act, 2010 contrary to the holding of the Tribunal Counsel urged that this issue should be resolved in favour of the appellant.
1ST RESPONDENT
Learned Counsel to the 1st Respondent referred to Section 87(10) of the Electoral Act, 2010 as amended as authority that the appellant should have canvassed this issue of non’97sponsorship of the 1st Respondent by the 4th Respondent before the Federal or State High Court and not the Tribunal. Counsel further referred to the pleadings and ruling of the Federal High Court Calabar (Exhibit 8) to show that the issue of sponsorship was determined by that Court once and for all. That the Tribunal had no jurisdiction to sit on appeal over the judgment of the Federal High Court. Moreover, the Peoples Democratic Party (4th Respondent) was not complaining that the 1st Respondent was not properly nominated or sponsored to contest the election of 9th April, 2011. That put paid to the argument of the petitioner. Reference was made to PDP vs. Mohammed (2005) All FWLR (Pt.289) 1322 at 1340 paragraph “E-G”; Oluyemi vs. Asaolu (2010) All FWLR (Pt.522) 1682 at 1733 paragraph “F-G” and Ocha vs. Onwe (2011) FWLR (Pt.580) 1227 at 1259. Counsel argued that the authorities referred to by learned Counsel to the appellant did not apply to the facts before the Tribunal, citing ANPP vs. Argungu (2009) All FWLR (Pt.467) 94; Dingyadi vs. INEC (2011) All FWLR (Pt.581) 1426 at 1463 paragraph”A-B”.
2ND- 3RD RESPONDENTS
Learned Counsel to the 2nd and 3rd Respondents submitted that a person’91E2’9180’99s qualification to contest election is the domestic affair of a political party, citing the same authorities and Exhibit 8 relied upon by learned counsel to the 1st Respondent.
4TH RESPONDENT:
Learned Counsel to the 4th Respondent argued that 1st Respondent was sponsored by the 4th Respondent to contest the election of 9th April, 2011. Counsel referred to the Reply of the 1st Respondent and the judgment of the Federal High Court (Exhibit 8) to show that 1st Respondent was the candidate of the 4th Respondent urging that this issue be resolved against the petitioner.
REASONS
Paragraph 1, 2 and 5 of the petition field on 29-04-2011 by the appellant reads as follows:
The petitioner was a candidate under the platform of the Action Congress of Nigeria in the election into the House of Representative for Calabar Municipality and Odukpani Federal Constituency held on the 9th day of April, 2011.
2. The 1st Respondent was the candidate under the platform of the Peoples Democratic Party in the election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency (sic) held on the 9th day of April, 2011.
5. The 4th Respondent is the party that sponsored the 1st Respondent for the election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency held on the 9th day of April, 2011.
The 1st Respondent’s Reply filed on 13/05/2011 reads as follows;
. Paragraphs 1, 2, 3, 4, 5 and 6 of the petition are admitted.
That which is admitted by the parties in their respective pleadings need to further proof since no one sets out to prove what has not been denied. See Section 175 of the Evidence Act, 2004 Olule vs. Ekwelendu (1989) 7 SCNJ 181. The appellant pleaded that the 1st Respondent was sponsored by the 4th Respondent as a candidate at the election held on 9th April, 2011. It is therefore a material contradiction for the petitioner to thereafter plead as follows: The 4th Respondent did not conduct ward congresses for the purpose of electing delegates for their primaries to nominate the 1st Respondent to contest the April 9 election for Calabar Municipality and Odukpani Federal Constituency.
33. The 4th Respondent nominated the 1st Respondent to contest the election into Calabar Municipality and Odukpani Federal Constituency without using delegates validly elected at her Ward Congresses.
34. The 1st Respondent was not sponsored by the 4th Respondent as the party did organize Ward Congresses to elect delegates that could lawfully vote in their primaries.
35. Consequent upon this the 3rd Respondent vehemently refused to accept the list of candidates that includes the name of the 1st Respondent submitted to it by the 4th Respondent.
36. The 1st Respondent had to institute an action before Federal High Court Calabar Division and the Court merely allowed the 1st Respondent to participate in the election.
The appellant was bound by his pleadings. See Emegokwe vs. Okadigbo (1973) 4 SC 113; N.I. vs. Thompson Organization (1969) NMLR 99 and Shell BP. vs. Abedi (1974) 1 NMLR 202.
Moreover, the sponsorship of a candidate to contest an election is the domestic affair of a political party. See Balonwu vs. Chinyelu (1991) 4 NWLR (Pt.183) 30; Onuoha vs. Okafor (1983) 2 SCNLR 244. Exhibit 8 is the judgment of the Federal High Court Calabar affirming that the 1st Respondent was candidate on the platform of the 4th Respondent. There is no evidence that the judgment has been set aside on appeal. Exhibit 8 is conclusive proof of facts directly in issue in this appeal. See Sections 54 and 55(1) and (2) of the Evidence Act, 2004. There is no substance in issue one in this appeal.
ISSUE TWO:
Learned Counsel to the appellant argued that in compliance with the provisions of paragraph 5(1)(b) of the 1st Schedule to the Electoral Act, 2010 (as amended) the petition was accompanied with the written statements on oath of the witnesses in respect to witnesses numbers 2 to 23 yet the Tribunal disallowed them from testifying likewise the witnesses the petitioner had subpoenaed to testify. Learned Counsel cited paragraph 41(3) of the Electoral Act, 2010 as amended.
1st, 2nd and 3rd Respondents:
The learned counsel to the 1st, 2nd and 3rd drew the Court’s attention to the fact that ruling refusing, to allow the petitioner’s witnesses to testify was delivered on 15-07-2011 but was not appealed against within 21 days of delivery. Besides, the ruling did not form part of the records complied by the Registry of the Tribunal and forwarded to this Court. This Court cannot review a ruling that is not before this Court, citing Dide v. Seleketimibi (2010) All FWLR (Pt.509) 583 at 598 to 599 paragraph “H-A”.
4TH RESPONDENT
Learned Counsel to the 4th Respondent submitted that issue two constituted a complete distortion of events that transpired at the hearing before the Tribunal in that the learned counsel to the appellant/petitioner had relied on the same reasons to exclude DW1.
Mr. Fadila Godspower from testifying. Counsel submitted person that a person who has benefited from the proceedings or ruling of the Tribunal cannot be heard to complain that the proceedings breached his right to fair hearing. Moreover, the appellant did not appear against the ruling of 15-07-2011 within 21 days contrary to the provisions of section 285 of the constitution of the Federal Republic of Nigeria, 1999. Reference was further made to paragraph 6 of the practice Directions, 2011, citing Abubakar vs Yar’Adua (2009) 17 NWLR (Pt.1170) 310 at 323 paragraphs “F-G”. Lastly it was submitted that the statement of the subpoenaed witnesses did not accompany the petition as stipulated under paragraph 5(b) of the 1st schedule to the Electoral Act, 2010 as amended hence there was no miscarriage of justice.
REASONS:
Ground 3 0f the Notice of Appeal is covered by issue two for determination as set out by the appellant in the brief of argument. The ruling complained of was delivered on 15/07/2011. This fact is at page 290 of the printed records forwarded by the Secretary of the Tribunal to the Registry of this Court. Nevertheless I have scanned page 290 to 291 of the printed records but I am unable to see the said ruling or the reasons that prompted the learned Judges of the Tribunal to debar the petitioner’s witnesses from testifying. All that is recorded is “(Ruling read by Justice S.U. Dikko granting the application. Essien Esq of counsel to 1st Respondent next intimated the Tribunal that he had only five witnesses to call. The Tribunal then adjourned to 26/07/2011 for continuation of hearing. Page 291 of the printed record shows that the defence opened on 26/07/2011 with the calling of DW1 after a preliminary objection from Ballantyne, Esq of Counsel to the petitioner.
An appeal is any proceedings taken to rectify an erroneous decision of a lower court or Tribunal by a higher or appellate Court or Tribunal. Where there is a wrong approach, wrong assumption or the onus of proof of a particular issue is cast on a wrong party, the court of Appeal or Tribunal may interfere with the decision by substituting a proper decision depending on the circumstances of each case. See Onobruchere vs. Esegine (1986) 1 NWLR (Pt.19) 799 at 807; sandy vs Hotogua 14 WACA 18 at 20; Enang vs Adu (1981) 11, 12 SC 25 at 42. For the above reasons an appellate Court or Tribunal must be furnished with the ruling of the lower Court or Tribunal to be able to determine the issues in controversy and arrive at a just decision.
It is the duty of the appellant to ensure the accuracy and completeness of the records forwarded from the lower Court or Tribunal’s Registry and to the Appeal Court or Tribunal. See Ajayi vs Omoregbe (t 993) 6 NWLR (Pt.301) 512 at 526; Obiamalu & Ors vs Nwosu (1973) 8 NSCC and Uwechua vs. Obi (1973) 8 NSCC 56.
My humble view is that in the absence of the ruling of 15-07-2011, I am not in a position to pronounce on the issues raised by the appellant in ground 3 and issue 2 set down for determination by learned counsel to the appellant. I hold that the appellant has not shown that the Tribunal breached the rules of fair hearing. I resolve this issue against the appellant.
ISSUE THREE:
Issue three (c) is whether the burden nr proof in election petitions is static having regard to the peculiar nature of election petition proceedings. It is asserted that the burden of proof on the pleadings rests on the party, whether plaintiff or defendant, who substantially asserts the alternative of an issue. Secondary, at page 13 paragraphs 3:4:2 0f the brief it is argued that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 as amended, namely, Section 63(1) and (2), 74 and a host of others. Counsel’s argument is that the onus of proving substantial compliance was on the Respondents citing Dr. Paul Ukpo & 2 Ors. Vs. Liyel Imoke (2009) 1 NWLR (Pt.1121) 90 at 149. Counsel argued that a petitioner who averred that there was no election had no burden of proving the allegation; that was the responsibility of the Respondents, citing Agagu vs. Mimiko (2009) 7 NWLR (Pt.1140) 342; Amgbare vs Sylva (2009) 1 NWLR (Pt.1121) 1. That the criminal allegations should have been severed from the civil allegations in the pleadings to enable the petition to be sustained, citing Ogboru vs. Uduaghan (2011) 2 NWLR (Pt.1232) 604; Aregbesola vs. Oyinlola (2011) 9 NWLR (Pt.1253) 458 and Section 138(1)(b) and (c) of the Electoral Act, 2010 as amended’ Learned counsel urged that this issue should be resolved in favour of the appellant.
1ST RESPONDENT:
Learned Counsel to the 1st Respondent submitted that a petitioner has the burden of proving non-compliance with the Electoral Rules or Act, citing Chime vs. Ezea (2009) All FWLR (Pt.470) 659 at 725. That the Tribunal righty herd that the burden of proving non-compliance with any provision of the Electoral Act or Schedule rested on the petitioner. Besides, the petitioner simply dumped documents on the Tribunal without rerating them to any of the irregularities complained of. Counsel referred to Habib Bank Ltd. vs. Gifts Unique Nig. Ltd. (2005) All FWLR (Pt.241) 234 at 253; Onibudo vs. Akibu (1982) 7 SC 60 at 62 and Amachree vs. Goodhead (2009) All FWLR (Pt.461) 911 at 940.
Learned counsel further argued that the appellant did not discharge the burden placed on him to prove that he was entitled to judgment. Reliance was placed on Buhari vs Obasanjo (2005) All FWLR (Pt.273) 1 at 122; Agbaje vs Fashola (2008) All FWLR (Pt.443) 1302 at 1339; Haruna vs Modibbo (2004) All FWLR (Pt.238) 740 and Ukpo vs Ngaji (2010) All FWLR (Pt.514) 144 at 172 – 173. That the appellant did not plead the official and stigmatized results, citing Awuse vs Odili (2005) All FWLR (Pt.253) 720 and Kore vs. INEC (2010) All FWLR (Pt.505) 1755 at 1765. Counsel urged that the appeal should be dismissed.
2ND AND 3RD RESPONDENT:
Learned counsel to the 2nd and 3rd Respondents drew this Court’s attention to the fact that ground One in the Notice of Appeal from which issue 3 was distilled did not arise from the judgment of the Court and was an academic voyage; neither was non-compliance with the provisions of the Electoral Act a ground of appeal. The appellant did not plead the two sets of results. Besides, documents were merely dumped on the Tribunal without rerating them to any set of facts. Counsel cited the same authorities relied upon by learned counsel to the 1st Respondent and urged that the appeal be dismissed.
4TH RESPONDENT:
Learned counsel argued that generally the burden of proof rested on the appellant to prove his allegations. This burden was not discharged by the appellant before the Tribunal, citing Chime v. Ezea (2009) 2 NWLR (Pt.1125) 263 at 371; Chime vs Onyia (2008) 2 NWLR (Pt.1124) 1 at 71; Akpabio vs Iniama (2008) 17 NWLR (Pt.1116) 255 at 303. Counsel submitted that allocation of votes, forgery, falsification of election results, multiple thumb-printing etc, all constitute criminal allegations which had to be proved beyond reasonable doubt. That no witness testified that he was not allowed to vote at the election. Reference was made to Audu vs INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 at 522. On the whole this Court was urged to dismiss this appeal.
REASONS
I do not see from which ground or appeal the learned counsel to the appellant distilled this academic or hypothetical question for determination by this Court. Ground One in the Notice of Appeal reads as follows:
“The trial Tribunal erred in law when it held that the petitioner did not establish a prima .facie case would shift the onus of proof that there was a .free and fair election to the respondents.
PARTICULARS OF ERROR:
(i) The judgment of the trial Tribunal delivered on the 29th of September, 2011 reveals a misunderstanding of the law regarding the onus of proof in election petitions.
(ii) The judgment of the trial Tribunal delivered on the 29th of September, 2011 reveals a misunderstanding (sic) the use of documentary evidence in proof of election petitions. The trial Tribunal failed to appraise the documents tendered by the petitioner and admitted in evidence to establish allegations of non-compliance with the provisions of the Electoral Act, 2010 (as amended).
The issue for determination by an appellate Court should not be couched in a hypothetical or academic manner but should flow from the judgment appealed against. Where that has happened the courts ought not to entertain such questions. See SaraKi vs. Kotoye (1992) 11 ‘E2’80” 12 SCNJ (Pt.1) 26 at 44; N.I. Corporation of Nigeria vs. Power Indust. Eng. Co. Ltd. (1986) 1 NWLR (Pt.14) 1 and N.N.S.C. vs. Sabana Ltd. (1988) 2 NWLR (Pt.74) 23.
Ordinarily, I would have refused to entertain this issue but for the fact that this is the Court of last resort in election petitions emanating from Tribunals affecting the Senate, House of Representative or Houses of Assembly. I shall therefore treat the issue as if the appellant is complaining that there was enough evidence to prove the petition which the Tribunal ignored but rather dismissed the petition.
Paragraphs 7- 10 of the petition pleads as follows: The candidates had the following scores as allocated and released by the 3rd Respondent:
a. EYO NSA EKPO – 7,213 votes
b. GRACE EKPONANWAN – 391 votes
c. NELSON EYAMBA COCO-BASSEY – 594 votes
d. EYO JANET ONOFIOK – 1135 votes
e. JOSEPH BASSEY ENO – 203 votes
f. BARON NSA EYO – 929 votes
g. NKOYO ESU TOYO – 23,295 votes
8. Nkoyo Esu Toyo, the 1st Respondent was returned as Elected by the 3rd Respondent
9. The petitioner scored the highest number of lawful votes cast in parts of the constituency, that is
Calabar Municipality and Odukpani Federal Constituency where elections were lawfully conducted by the 3rd Respondent.
10. The result of the election was declared by the 3rd Respondent on 10th April, 2011. ”
The appellant did not plead the votes in the other parts of the Constituency that votes were unduly recorded in favour of the 1st Respondent. However paragraph 7 of the petition shows that the petitioner polled 7,213 votes while the 1st Respondent polled 23,295 votes in the entire constituency. 1st Respondent was declared by the 2nd and 3rd Respondents as duly elected to represent the constituency. There is presumption that the result declared by 2nd and 3rd Respondents is authentic or correct. The onus is on the appellant to prove otherwise. See Omoboriowo vs Ajasin (198s4) 15 NSCC 81 at 90; Nwobodo vs Onoh (1984) All NLR 1.
The onus of proving falsification of results is on the petitioner and not the Respondents. See Sabiya vs Tukur (1983) NSCC 559 at 560; Atikpekpe vs Joe (1999) 6 NWLR (Pt.607) 428 at 442 – 443. None of the presiding officers or voters were called by the petitioner to testify and be cross-examined in order to establish the criminal allegations upon which the petition was founded. The onus of proving that the votes ascribed to the 1st Respondent by the 2nd and 3rd Respondents were false rested on the appellant. See Kingibe vs Maina (2004) FWLR (Pt.191) 1555 at 1588; Ogunderu vs Adebayo 1999 NWLR (Pt.608) 684.
The law is well settled that non-compliance with the provisions of the Electoral Act, 2010 as amended and pleaded in this petition constitutes criminal allegations to be proved beyond reasonable doubt by the petitioner. See Maikudi vs. Musa (2004) Ail FWLR (Pt.230) 1096 at 1111-1112. In dismissing the petition the Tribunal held at page 421 lines 10 to page 422 lines 1 – 3 of the printed record as follows:
“The Petitioner in the instant case has the duty of proving his case. He has to establish a prima facie case before the onus can shift to the Respondents to prove that there was election. In Amachree vs. Goodhead
(2009) All FWLR (Pt.461) 911 at 945. The court of Appeal, Port Harcourt Division allowed the Appellant’s appeal and dismissed the respondent’s cross-appeal, per Kereke-Ekun (JCA) held that:
“Earlier in this judgment I had reviewed the law and decided authorities on the issue of the burden of proof and the bindingness of pleadings. In the case of Awuse vs Odili at 500 F, this Court held per Ogunbiyi, JCA, that the consideration of the Respondents’ case does not arise until the petitioner has made out a case; that the petitioner must succeed on the strength of her case and not on the weakness of the defence. A respondent has no duty to prove anything if the petitioner has not made out a prima facie case: Jolayemi vs. Alaoye at 703.”
We are of the view that the petitioner has failed to prove the allegation leveled against the respondents in
his petition. This issue is therefore resolved in favour of the Respondents. ”
Moreover, the onus is on the Appellant who pleaded that he has 7,213 votes to show how he had the highest votes at the election against the 1st Respondent who polled 23,295 votes. Surely, 7,213 votes is not higher than 23,295 votes.
I have read the entire records and the evidence adduced at the trial. The appellant has not succeeded in showing where the Tribunal erred in law or in fact to warrant my interference with the above conclusions. I see no merit in this appeal which I dismiss.
No Order as to 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. I am in total agreement with his reasoning and final conclusions.
A party is bound by his pleadings. An appellant who pleads certain facts of which the Respondent accepts as true does not need further proof.
For this and the more robust reasoning in the lead judgment, I too must dismiss this appeal, it lacking in merit.
I abide by all the consequential orders in the lead judgment including that as to costs.
EJEMBI, EKO, J.C.A.: I read the judgment just delivered by my learned brother, J.I. Tur, J.C.A. and I concur that the appeal lacks merit and is dismissed.
I abide by all the orders made by my learned brother.
Appearances
William Ballantyne Esq.,
H. Njoku Esq.For Appellant
AND
Essien Andrew Esq.,
Ekpedeme Iyoho,
Imo Bassey Esq. holding brief of Chief Uwakwe,
Chief O.N. Egodo,
Attih Esq. and
Ugochukwu Esq.For Respondent
