MR. IBIBIAMA F. G. ODOM & ORS V. THE PEOPLES DEMOCRATIC PARTY & ORS
(2013)LCN/5907(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2013
CA/PH/404/2011
RATIO
PLEADINGS: PARTIES ARE BOUND BY THEIR PLEADINGS
“It is elementary yet a fundamental principle of pleading that both the court and parties to a case are tied and bound by the pleadings filed in the suit. They cannot go outside the pleadings either to introduce evidence or decide the issues in controversy. The Lower Court’s finding that cross appellant’s pleading does not contain facts on the presence of INEC, Police and SSS officials at the venue of the election to justify the reception of the testimonies of DW3, DW5 and DW6, is therefore impeccable. See Congress for Progressive Change & anor V. INEC & 4 others (2012) 2 – 3 SC 1, Mrs. Vidah C. Ohochukwu V. Attorney General Rivers State & 2 Ors (2012) 2 SC (Pt 11) 103 and Mr David I. Karinga Stowe and anor V. Godswill T. Benstone & anor (2012) 1 SC (Pt 11) 86.” Per MUHAMMAD, J.S.C.
PLEADINGS: FACTS IN PLEADINGS MUST BE CONCISE AND UNAMBIGUOUS
PLEADINGS: EVIDENCE LED BY A PARTY WHICH IS IN CONFLICT WITH PLEADINGS GO TO NO ISSUE
“Any evidence led by a party which is in conflict with the party’s pleadings, the lower Court is right, goes to no issue and should either be discountenanced or expunged by the trial court.” Per MUHAMMAD, J.S.C.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. MR. IBIBIAMA F. G. ODOM
2. MR. INNOCENT IBOROMA
3. HON. EMILY SOLOMON
(Suing for themselves individually and jointly as aspirants to the Bonny Federal Constituency Election of the peoples Democratic Party. Appellant(s)
AND
1. THE PEOPLES DEMOCRATIC PARTY
2. HON. SEKONTE DAVIES
3. MR. NTOBARI OGOSU Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the Rivers State High Court of Justice delivered by Hon Justice O. Daniel-Kalio on the 24th of June, 2011.
The Appellants by their writ of summons dated the 25th of January 2011 and filed same date claim against the Respondents jointly and severally as follows:
(1) A declaration that the purported result and or result sheet put forward by the Defendant and their officials (the returning officers) which is before the Appeal panel purportedly in favour of and declaring of and or declaring Dr. Sekonte Davies as the winner of the Bonny/Degema Federal Constituency party election is defective, null and void for non compliance with the Electoral Act.
(2) A declaration that the 2nd Defendant did not pool (sic) the majority of the votes cast in the Bonny/Degema (sic) Federal Constituency party primary election (i.e. the House of Representative on 6/01/2011).
(3) A declaration that Mr. Ibibiama F. G. Odom, the claimant pooled (sic) the majority of the votes cast after sorting of the ballot papers and confirmed by the delegates and eyewitness and be accordingly returned and as declared as the winner of the Bonny/Degema Federal Constituency in the party primary election of the 1st Defendant on 6/01/2011.
(4) An order of injunction restraining the 1st Respondent from presenting the 2nd Defendant as its candidate to run the 2011 general election into the House of Representatives for the Bonny/Degema Federal constituency.
The Appellants, the 2nd and 3rd Respondents are members of the 1st Respondent (Peoples Democratic Party). The Appellants, the 2nd Respondent and some others were aspirants at the primary Election of the 1st Respondent for Bonny/Degema Federal Constituency held on 6/01/2011. The 3rd Respondent was the Returning Officer of the said election. The Appellants alleged that counting briefly commenced but was disrupted and the election process immediately terminated as counting could not continue and no result was nor any aspirant declared winner. The Appellants were however surprised to hear later that the 2nd Respondent was the candidate of the 1st Respondent for the Bonny/Degema Federal Constituency election. Appellants on the other hand contended that the 1st Appellant pooled majority of the votes cast that were counted and that he should be returned the winner of the primary election amongst other claims.
The Respondents defence in the main is that the primary election was conclusive and the 2nd Respondent emerged the winner having scored the highest votes.
The Appellants called 3 witnesses. The 1st and 3rd Respondents called 2 witnesses. The 2nd Respondent called 4 witnesses.
At the end of the trial, the learned trial Judge dismissed the claims of the Appellants. Dissatisfied with the judgment, Appellants appealed to this Court. The notice of appeal dated the 15th of August 2011 but filed on 18th of August 2011 contained six grounds of appeal at pages 485 – 489 of the record.
In compliance with the rules of this Court, Appellants’ brief of argument is dated 21st October 2011 but filed on 24th October 2011. Appellants’ reply brief to the 1st and 3rd Respondent’s was filed on the 8th of December 2011. Appellants’ reply brief to the 2nd Respondents’ brief was filed on the 27th of November 2012. The 1st and 3rd Respondents’ brief of argument was filed on the 24th of November 2011. 2nd Respondent’s brief of argument was filed on 13th of January 2012 but was deemed properly filed on the 13th of November 2012.
At the hearing of the appeal, learned silk for the Appellants and learned counsel for the 1st and 3rd and 2nd Respondents respectively adopted and relied on the arguments contained in their briefs as their arguments in the appeal for their clients.
Learned silk for the Appellants distilled four issues for determination as follows:
(1) Whether the learned trial Judge was right when he held that the burden of proof on the pleadings was on the Appellants who asserted negative of the conclusiveness of the primary election instead of the Respondents who asserted the affirmation of the issue. (Ground 1).
(2) Whether the learned trial Judge was right when he suo motu framed issues different from those framed by the parties and drafted or couched the issues in the manner that presumed that the primary election was conclusive, before even evaluating the evidence (Ground 4).
(3) Whether the learned trial Judge properly evaluated the evidence before him with respect to the question whether or not the primary election held on the 6/01/2011 was concluded in the absence of the result sheet and the delegated list used before coming to the conclusion that the Appellants failed to prove their case (Grounds 3, 5 and 6).
(4) Whether the learned trial Judge was right in invoking the provisions of Section 149(d) of the Evidence Act (now Section 167(d) of the Evidence Act 2011) when the totality of the case of the Appellants as pleaded and supported by evidence was that the election was inconclusive as the votes were not counted and no results announced (Ground 2).
Learned counsel for the 1st and 3rd Respondents distilled three issues for determination as follows:
(1) Was the trial Court not right in holding that the burden of proof was on the Appellants to prove their case on the preponderance of evidence to succeed on their claim (Ground 1)?
(2) In evaluating the evidence before the court was the trial court not right in holding the view that the Appellants should succeed on the strength of their case (Grounds 2, 3, 5 and 6).
(3) In evaluating the evidence before it a trial court is not bound to adopt the issue as formulated by the parties.
Or
Did the issues formulated by the trial court judicially and judiciously deal with evidence before it (Ground 4).
Learned counsel for the 2nd Respondent distilled three issues for determination as follows:
(1) Whether learned trial court wrongly placed the burden of proof on the Appellants who were the claimants and whose case would fail if no evidence was led (Ground 1).
(2) Whether the trial court wrongly evaluated the evidence before her resulting in a perverse and unsustainable judgment thereby occasioning a miscarriage of justice?
(Grounds 2, 3, 5, and 6).
(3) Whether the reformulation of the issues for determination by the learned trial court affected the learned trial court’s assessment’ of the evidence before her resulting in the Appellants suffering a miscarriage of justice (Ground 4).
After a careful review of the pleadings of the parties and the issues formulated, I am of the view that issues 1, 3 distilled by the Appellants are apt and germane in the determination of this appeal.
Issues 2 and 4 and the Respondents issues are hereby subsumed in issues 1 and 3 distilled by the Appellants. The issues are hereby rearranged as issues 1, 2 and are set out as follows:
(1) Whether the learned trial Judge was right when he held that the burden of proof on the pleadings was on the Appellants who asserted negative of the conclusiveness of the primary election instead of the Respondents who asserted the affirmation of the issue. (Ground 1).
(2) Whether the learned trial Judge properly evaluated the evidence before him with respect to the question whether or not the primary election held on 6/1/2011 was concluded in the absence of the result sheet and the delegated list used before coming to the conclusion that the Appellants failed to prove their case (Grounds 3, 5 and 6).
Issue One
Whether the learned trial Judge was right when he held that the burden of proof on the pleadings was on the Appellants who asserted negative of the conclusiveness of the primary election instead of the Respondents who asserted the affirmation of the issue.
Learned silk for the Appellants asked the question on where the burden of proof on the pleadings lies in the circumstances of this case. He submitted that the burden of proof on the pleadings is different from the general burden on a Plaintiff to proof his case before a Court. He referred to the case of Ogboru v. Uduaghan (2011) 2 N.W.L.R Part 1232 page 538 at 591-592 paras D-H. He submitted that the case of the Appellants as pleaded and in particular the purport of paragraphs 3, 6, 8, 9, 10 and 14 of the Statement of Claim and paragraph 4 of the reply to the 1st and 3rd Respondents Statement of Defence was to the effect that the primary election of the 1st Respondent held on 6/1/2011 for the Bonny/Degema Federal Constituency was inconclusive as the votes cast at the said election were not counted and no result declared and entered into the Result Sheet as required by the Electoral Guidelines Exhibits ‘E’ Clause 31 (a) and (b) thereof.
The Respondents asserted positively the conclusiveness of the primary election. The burden of proof on the pleadings rested squarely on them. The learned trial Judge was in error not to so hold. Learned silk urged the court to resolve issue one in favour of the Appellants.
Learned counsel for the 1st and 3rd Respondents submitted that this issue deals with the question on whom lies the burden of proof in this case. He contended that the trial court was right in, law when it held that the burden of proof was on the Appellants to prove their case in order to succeed on their claim. The learned trial court rightly applied the provisions of Section 137 now Section 133 of the Evidence Act 2011. He submitted further that the Appellants and their witnesses contradicted themselves and failed to discharge the burden of proof placed on them by Section 133 of the Evidence Act 2011. He argued further that the Appellants failed to discharge the evidential burden placed on them by their pleadings of disruption of the counting of votes. Reliance was placed on the case of INEC v. Anthony (2011) 7 N.W.L.R. part 1245 page 1 where the court held that:
“It is the petitioner that bears the burden of proof where he asserts that no election took place”.
Learned counsel for the 1st and 3rd Respondents submitted that the burden of proof is on the person who desires any court to give judgment dependent on the existence or even non existence of a fact and against whom judgment would be given if no evidence at all were produced by either side, regard being had to any presumptions arising from the pleadings. He referred to the case of: Uzukwe v. Dansy Industries (2002) All F.W.L.R. Part 90 page 1322 and Buhari v. Obasanjo (2005) All F.W.L.R. Part 273 at page 7 where the Court opined thus:
“In general in a civil case the party that asserts in its pleading the existence of a particular fact is required to prove each fact by adducing credible evidence. If the party fails to do so, its case will fail”.
Learned counsel for the 1st and 3rd Respondents urged the court to hold that the Appellants failed to discharge the burden of proof on them and to resolve issue one against the Appellants. Learned counsel for the 2nd Respondent submitted that the learned senior counsel for the Appellants has gravely misconstrued the legal principles in Imana v. Robinson (1979) N.S.C.C. page 1 at page 4 line 15 to page 5 line 47 and Ogboru v. Uduaghan (2011) 2 N.W.L.R. Part 1232 page 538. Unlike Imana v. Robinson where the Defendant offered no evidence at all, the Respondents, including the 2nd Respondent submitted the issues raised in their respective pleadings for trial by giving or calling evidence in their support. He submitted that no burden of proof be it legal (Section 135 now Section 131 of the Evidence Act) evidential (Section 136 now Section 132 of the Evidence Act) or on the pleadings (Section 137 of the Evidence Act now Section 133 of Evidence Act 2011) rests on the Respondents and particularly the 2nd Respondent. He referred to the case of Adighije v. Nwaogu (2010) 12 N.W.L.R. Part 1209 page 419 at page 459 paragraph D.
Submitted further that the learned trial Judge was right he held:
“I therefore most respectfully hold that the burden of proving facts in this case whether the facts are in existence or not in existence as where in this case it is alleged by the claimants that the 2nd Defendant did not score the facts (sic) credited to him lies on the claimants, for it is they, the claimants, that judgment will go against if no evidence were produced on either side”.
He urged the court to hold that the learned trial Judge was right by placing the initial burden on the claimants to prove on the balance of probabilities the fact that they are entitled to the reliefs they claimed and resolve issue one in favour of the Respondents.
Appellant’s case as pleaded is to the effect that the primary election of the 1st Respondent held on 6/1/2011 for the Bonny/Degema Federal Constituency was inconclusive. While Respondents case as pleaded was that the primary election was conclusive. I shall reproduce the relevant pleadings of the parties in their Statement of Claim and Statement of Defence respectively.
Paragraph 8 of the Statement of Claim of the Appellants at page 6 of the record averred thus:
“It is further averred that short of counting to declare the 1st claimant the winner and barely at the count of 10 (ten) ballot papers, 2nd Defendant and his cohorts mobilized thugs and militants to disrupt the counting and carted away some of the ballot papers to scuttle the counting and thereby prevented the electoral officers from declaring the 1st claimant as the winner. Detailed evidence shall be given at the trial”
Paragraph 10 of the statement of Defence of the 2nd Respondent at page 173 of the record averred thus:
“Paragraphs 8, 9, 10, 11, 12, 13 and 15 of the Statement of claim are false. The election was conducted in a peaceful manner; delegates cast their votes peacefully; the votes were counted without disruption by thugs or militants or both of them; and the results declared at the venue the same day with the 2nd Defendant as the winner. All the facts averred to by the claimants in the aforementioned paragraphs were contrived for the purposes of prosecuting this suit”.
Paragraph 8 of the Statement of Defence of the 1st and 3rd Respondents at page 191 of the record averred thus:
“The 1st and 3rd Defendants vehemently deny the averments contained in paragraphs 7-10 of the Statement of Claim and put the claimants to the strict proof thereof.
In answer thereto the 1st and 3rd Defendants aver that the sorting out of votes, the counting of the votes and the announcement of the votes scored by each Aspirant were concluded without an incident or interruption”.
Section 137 (1) of the Evidence Act now Section 133 (1) of the Evidence Act 2011 depends on the contents of pleading of each case. The onus was therefore on the Respondents who asserted the positive in the case at hand. This is because the burden of introducing evidence otherwise known as evidential burden squarely rests on the party who substantially asserts the positive before the evidence is adduced thereafter the burden of proof rests on the party who will fail if no further evidence is produced. Where this is the burden of proof will shift on the either party to introduce evidence which if accepted, will then defeat the claim of the Appellants. See cases of Hon. Alphonsus Uba Igbeke v. Senator Joy Emordi & Others (2010) 11 N.W.L.R. part 1204 page 1, Ukpo v. Imoke (2009) 1 N.W.L.R. Part 1121 page 1 at 60, Agagu v. Mimiko (2009) 7 N.W.L.R. Part 1140 page 342 and Fayemi v. Oni (2010) 17 N.W.L.R. part 1222 page 326-387 paras C-A.
The learned trial Judge with respect did not properly appreciate the purport of Section 137 (1) of the Evidence Act which is now section 133 (1) of the Evidence Act 2011. Judgments are always given against the person on whom the burden of proof lies and has failed to discharge same. See Atane v. Amu (1974) 10 S. C. at 237. The learned trial Judge at page 477 of the record had this to say:
“Positive or negative assertions have nothing to do with burden of proof in civil cases”.
The finding of the learned trial Judge is with respect not correct because the allegation of the Appellants was not just that the 2nd Respondent did not score the votes accredited to him but that the election was not conclusive. See the case of Ogboru v. Uduaghan (2011) 2 N.W.L.R. Part 1232 page 538 at 598 paras H-A where this court opined as follows:
“As already noted above in line of the cases, the court affirmed that the burden of proof on the pleadings in an election petition is on the party (whether a petitioner or respondent) who alleges affirmatively that election took place”.
And at page 600 paragraphs A-G of the same case, the court continued as follows:
“That the Appellants who answered that there were no elections could not be said to bear the initial burden of proof on the pleadings to prove the conduct of the said election by pleading its result”.
See also Agagu v. Mimiko (2009) 7 N.W.L.R. Part 1140 page 342 at 432, Nwole v. Iwuagwu (2005) 16 N.W.L.R Part 9502 page 543 at 569 and Ukpo v. Imoke (2009) 1 N.W.L.R. Part 1121 page 90 at 149.
The Respondents who asserted positively or affirmatively the conclusiveness of the primary election has the burden of proof or put in another way, the burden of proof in the pleadings rested squarely on them. See also Amgbere v. Sylva (2009) 1 N.W.L.R. Part 1121 page 1.
The learned trial Judge was wrong in its findings that the burden of proof rests on the claimant i.e. the Appellants. Issue one is hereby resolved in favour of the Appellants.
Issue Two
Whether the learned trial Judge properly evaluated the evidence before him with respect to the question whether or not the primary election held on the 6/1/2011 was concluded in the absence of the result sheet and the delegated list used before coming to the conclusion that the Appellants failed to prove their case. (Grounds 3, 5 and 6).
Learned silk for the Appellants submitted that the totality of the case of the Appellants before the trial court was that the votes were not counted, though they pleaded and gave evidence that counting initially commenced with the basket containing the votes of the 1st Appellant but at the count of 10 votes the counting was disrupted. No further counting ever took place and no result declared at the venue. He submitted further that the Respondents who alleged that the election was conclusive failed to tender:
(1) The correct delegate lists used for the election.
(2) The result sheet of the election.
It is not the law that a party who averred that there was no conclusive election should bear the burden to plead and tender the scores and result sheet. The learned trial Judge therefore erred in law when he held that the Appellants had the duty to tender the result sheet. He submitted further that the finding of the learned trial Judge that the Appellants have a copy of the result sheet but failed to tender same because it will not be in their favour is perverse. He contended that the Respondents failed to lead legal evidence in proof of their positive assertions that the votes were counted, scores entered in the result sheet and announced at the venue of the election.
Learned silk for the Appellants contended further that the witnesses called by the Respondents gave conflicting evidence on what transpired at the venue of the primary election on 6/1/2011 and also gave evidence at variance with their pleadings on the issue of whether the D.P.O addressed the delegates at the election venue and the serialization of the ballot papers used. He submitted that the court cannot pick and choose which witness to believe. He urged the court to treat their evidence as unreliable. Reliance was placed on the cases of Agbo v. State (2006) 6 N.W.L.R. part 977 page 545 at 564 paras B-C and Onugbogu v. The State (1974) 9 S.C. page 1 at 20.
Submitted further that the Respondents failed to plead the presence of the officials of the I.N.E.C., Police, S.S.S. He argued further that any evidence led in court of the presence of these officials is at variance with the pleadings of the Respondents and should be discountenanced. He referred to Emeogokwe v. Okadigbo (1973) 4 S.C. page 113 at 117-118.
Learned senior counsel further contended that the fact that the name of the 2nd Respondent was submitted as the candidate of the 1st Respondent and that the general election had been held were not pleaded and therefore goes to no issue. If the evidence is expunged, there would be nothing before the court to sustain the finding that an injunction cannot be made to stop the 1st Respondent. He urged the court to order fresh primary election not withstanding that the general elections had held and it was no longer appropriate to grant the injunction relief sought.
Learned silk for the Appellants urged the court to resolve issue two in favour of the Appellants and set aside all the findings of the trial court and allow the appeal.
Learned counsel for the 1st and 3rd Respondents submitted that a party who comes to court seeking judgment in his favour should succeed in that judgment on the strength of his case and not on the weakness of the defence. He cited the cases of Amachree v. Goodhead (2009) All F.W.L.R part 461 page 991 at 945; Awuse v. Odili (2005) All F.W.L.R part 253 at 720 and Chime v. Onyia (2009) All F.W.L.R part 480 page 673 at 723 para H.
He submitted that Appellants cannot in the same election claim that the 1st Appellant won the election and in the same breath claim that the election was inconclusive. He submitted that the learned trial Judge was therefore right in holding that the Appellants have not established that they are entitled to their claims. He referred to the case of Alhaji Otaru and Sons Ltd v. Idris (1999) 6 N.W.L.R part 606 page 330.
Learned counsel for the 1st and 3rd Appellants submitted further that the burden of proving that the said election was inconclusive lies on the Appellants. On the issue of Delegated List learned counsel submitted that there is no piece of evidence coming from the Appellants at the trial court that accreditation was not peaceful and orderly nor is there evidence before the court that 477 delegates were not accredited for the election. In the absence of such evidence, the argument of the Appellants on delegated list goes to no issue.
On the issue of result sheet, learned counsel submitted that there is evidence before the trial court from D.W 2 who conducted the election that the votes were counted, announced and recorded on the result sheet at the venue of the election. This evidence is in compliance with paragraph 3(a) of exhibit “E” (P.D.P) Guidelines.
He submitted that the law presumes the genuiness of the primary election result. He referred to the cases of Ogu v. Ekweremadu (2005) All F.W.L.R. Part 260 page 1 at 23 – 24 and Adigbije v. Nwaogu (2002) All F.W.L.R Part 559 page 1006 at 1039 paras B-F.
On the issue of the serialization of the ballot papers used, learned counsel submitted that the Appellants failed to prove those serialized numbers as to warrant the Respondents to introduce evidence in rebuttal of those numbers.
He urged the court to resolve issue 2 in favour of the Respondents and against the Appellants. He further urged the court to dismiss the appeal as lacking in merit and affirm the decision of the learned trial Judge.
Learned counsel for the 2nd Respondents submitted that the Appellants in proof of their claim plead a result sheet at paragraph 12 of their Statement of Claim thus:
“The claimants herein plead the said ballot papers and result sheet. The Defendants are put on notice to produce same”.
At paragraph 14 of the Statement of Claim, continuous reference was made by the Appellants to the result sheet. Also at paragraph 17 of their Statement of Claim. Appellants pleaded that they asked to see the Result Sheet. He submitted that on the pleadings, the single issue that arose for determination is whether there was a conclusive primary election. Learned Counsel for the 2nd Respondents submitted that the legal burden of proving the allegation of inconclusive primary election made by the Appellants is on the Appellants by virtue of Section 135 of the Evidence Act now Section 131 of the Evidence Act of 2011.
Learned counsel for the 2nd Respondent contended further that the Appellants witnesses contradicted themselves on all the material points concerning the vote count that it is questionable if they were present at the election and if present whether any of them were believable. He submitted that the Appellants were under a duty to clear the confusion created by the contradictory testimony of not just CW 3 but also that of CW 1 to the satisfaction of the learned trial court before they could expect the onus of proof to shift to the Respondents. Submitted further that Appellants relied heavily in their pleadings on the role of the Divisional Police Officer Degema on the day of the election in proof of the fact that counting of votes was not concluded and results produced. Appellants did not call the DPO. The 2nd Respondent however subpoenaed the DPO who testified as D.W 5 and debunked the whole story of the Appellants that the primary election was successfully interrupted by thugs resulting in its being inconclusive. He argued that the 2nd Respondent could not have denied the presence of the Police, S.S.S and I.N.E.C as their presence is specifically pleaded at paragraph 11 of the Statement of Defence.
Learned counsel for the 2nd Respondent argued further that the evidence of DW 3, 5 and 6 are not at variance with the pleadings of DW 4 but confirm and reinforce the said pleadings. It is further submitted that assuming without conceding that there was anything irregular with the manners in which the said witnesses were called, the said mistake by the Appellants complaints is procedural. Appellants did not complain of a breach of any statute. Neither is there any complaint that the said witnesses are not competent witnesses. Appellants counsel having participated in the proceedings by cross-examining the said witness cannot be heard to complain about the said irregularity which they had by participating in the proceedings accepted, waived or acquiesced in. He referred to the case of Ajayi v. Attorney General of Ogun state (2009) 7 N.W.L.R Part 1141- page 443 at 477 paragraphs A – C.
Learned counsel for the 2nd Respondent submitted further that the Respondents were not duty bound to call evidence or tender any result sheet particularly in circumstances in which the Appellants were challenging a defective result sheet which they failed to tender in evidence. See Okonkwo v. Okonkwo (1998) 10 N.W.L.R Part 571 page 554 at 564 paragraph H. He submitted that there was nothing for the learned trial Judge to restrain by way of an injunction as not only did the 2nd Respondent win the primary election, his name had been submitted by the 1st Respondent to INEC and the 2nd Respondent had gone ahead to win the general election. He submitted that the judgment of the learned trial court cannot be described as perverse. There was no miscarriage of justice. He urged the court to resolve issue two against the Appellants and affirm the learned trial Judge’s evaluation of the evidence before her as meticulous and resulting in the correct findings and conclusions. He urged the court to resolve issue two in favour of the Respondents.
The totality of the Appellants case before the trial court was that the votes were not counted, though they pleaded and gave evidence that counting initially commenced with the basket containing the votes of the 1st Appellant, but at the count of about 10 votes, the counting was disrupted. No further counting ever took place and no result declared at the venue.
The 1st and 3rd Respondents case as pleaded in paragraphs 8, 9 and 10 of their joint Statement of Defence is that the said primary election was conclusive. They averred in those paragraphs that the votes were counted, scores entered into the result sheet and the result announced at the venue of the primary election. This was also the case of the 2nd Respondent as averred in paragraphs 5 and 10 of his Statement of Defence and supported by evidence.
The Respondents who alleged that the election was conclusive failed to tender:
(1) The correct Delegate lists used for the election
(2) The result sheet of the election.
Exhibit E is the Guidelines for the conduct of primaries for the election of 1st Respondent’s i.e. P.D.P candidates. Article 45 (a) of the Guideline at page 114 of the record stipulates:
“No result shall be regarded as valid until the same has been entered on Form-Code PD004/SA for it”.
Respondents in their defence stated that they found it difficult to retrieve the Result Sheet which had been forwarded to the I.N.E.C’S office in Abuja.
In the absence of the Result Sheet as specifically provided in exhibit E the (P.D.P) Guidelines, I am of the view and hold that the learned trial Judge merely speculated on the Respondent’s evidence to the effect that the election was conclusive without the Result sheet and the Delegated List of voters. A court cannot speculate.
See the cases of Adefulu v. Okulaja (1996) 9 N.W.L.R Part 475 at 668, O.B.M.C. Ltd v. M.B.A.S Ltd (2005) 9 N.W.L.R Part 929 page 117 and Fayemi V. Oni 2010 17 N.W.L.R Part 1222 page 326 at 394 para G.
The evidence of DW1 in paragraph 12 of his statement on oath is unacceptable. In paragraph 12 of the statement DW 1 stated:
“In submitting the list of candidates to I.N.E.C, the party also submits along with the list of candidates the respective Result Sheet. The Result Sheet of P.D.P, Bonny/Degema Federal Constituency is now at the I.N.E.C headquarters Abuja. It has been difficult to get back the result sheet from I.N.E.C”.
In the absence of the Result Sheet and the Delegated List, it cannot be said the process of election was conclusive. See Awuse v. Odili (2005) 16 N.W.L.R part 952 page 416; I.N.E.C v. Oshiomole (2009) 4 N.W.L.R. Part 1132 page 607 and Nwakamma v. Abaribe (2010) All F.W.L.R part 505 at 1767.
The court must be wary of accepting evidence on Result Sheet and the Delegated List that were not tendered. I hold therefore that the primary election was not conclusive as rightly stated by the Appellants. The absence of the Result Sheet and the Delegated List despite the notice on the Respondents to produce them which they failed to produce would have been detrimental to the interests of the Respondents if produced and this would warrant the invocation of Section 149(d) now Section 167 of the Evidence Act against the Respondents. See Nwole v. Iwuagwu (2005) 16 N.W.L.R part 952 at page 543.
The concept of election denotes a process constituting accreditation, voting, collation, recording on all relevant I.N.E.C forms and declaration of results, Mere stating that the election was conclusive without Result Sheet without more is not prima facie evidence or proof that an election was conclusive. See Ajadi v. Ajibola (2004) 16 N.W.L.R Part 898 page 91 and I.N.E.C v. Oshiomhole (2009) 4 N.W.L.R part 1132 at 607.
The case of Buhari v. Obasanjo (2005) All F.W.L.R part 273 page 7 cited by the 1st and 3rd Respondents at page 12 of their brief of argument makes it clear that in civil cases the “party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence”. The case is therefore not applicable to the instant case or else where is the credible evidence before the court to show that the 2nd Respondent won the election. I am afraid, there is none anywhere on the record.
I am unable to find on the record where the Respondents plead the presence of the officials of the I.N.E.C Police, S.S.S. Any evidence led orally in court of the presence of these officials or evidence emanating from D.W 3, D.W 5 and D.W 6 are at variance with the pleading’s of the Respondents. The evidence goes to no issue and it is hereby discountenanced.
The learned trial Judge at page 482 of the record states:
“In considering the evidence of C.W 3 which contradicts the evidence of C.W 1 and C.W 2 that there was counting of votes up till ten from the 1st claimants ballot basket before the counting was disrupted, the pleading that disruption of the process occurred when up to ten of the claimant’s votes had been counted was not established. This is because there is no basis for believing the evidence of C.W 1 and C.W 2 and disbelieving the evidence C.W3 on the point or vice-versa. See Onisaodu v. Elewuju and Anor (2006) 7 S.C. Part II page 45 at 50”.
With respect, the pleading and the evidence that that counting commenced with the basket of the 1st Appellant but stopped barely at the count of 10 votes are mere details. They do not in themselves contradict the materiality of the evidence of the C.W 3 that the votes were not counted. In the case of Agbo v. State (2006) 6 NWLR Part 977 page 545 at 564 paras C-F, the Court had this to say:
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not where there is just a minor discrepancy between them … two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains some minor differences in details”.
The evidence of these witnesses are credible and believable.
Again the learned trial Judge at page 484 had this to say:
“From my consideration of all the issues, it is clear that the claimants have not established that they are entitled to the claims. I therefore dismiss the suit”.
The evaluation of evidence is pre-eminently the duty of the trial court which alone has the singular benefit of seeing and hearing witness. See Okonkwo v. Okonkwo (2011) 1 W.R.N page 1 at 17 line 25.
An appellate court will therefore only interfere with the findings of fact of the trial court if it is established that the findings are not supported by the totality of evidence on record. See Obodo v. Ogba (1987) 2 N.W.L.R part 54 page 1, Abisi v. Ekwealar (1993) 6 N.W.L.R part 302 at 643.
Appellants have shown through their witnesses that the counting of votes at the election was disrupted. The primary election is the foundation for the general election. I agree with the learned silk for the Appellants that the primary election of the Bonny/Degema Federal constituency has not complied with the Electoral Act from the available evidence on record. It is therefore my view that the findings of the learned trial Judge are perverse.
The judgment of the lower court delivered on the 24th of June 2011 is hereby set aside.
I will now go to the reliefs of the Appellants stated in paragraph 22 of their Statement of Claim at page 9 of the record.
Appellants seek:
(a) A declaration that the purported result and or result sheet put forward by the Defendants and their officials (the returning officers) which is before the Appeal panel purportedly in favour of and or declaring Dr. Sekonte Davies as the winner of the Bonny/Degema Federal Constituency party election is defective, null and void for non compliance with the Electoral Act.
This relief is granted because the result sheet was not tendered. The reason given by the Respondents that they found it difficult to retrieve the Result sheet from the I.N.E.C’s office in Abuja is unacceptable. It will be difficult to know the winner without the result sheet.
(b) A declaration that the 2nd Defendant did not pool (sic) the majority of the votes cast in the Bonny/Degema Federal constituency party primary election i.e. the House of Representatives on 6/1/2011.
This relief is granted because the election was not conclusive.
(c) A declaration that Mr. Bibiama F. G. Odom, the 1st claimant pooled (sic) the majority of the votes cast after sorting of the ballot papers and confirmed by the delegates and eye witnesses and be accordingly returned and or declared as the winner of the Bonny/Degema Federal constituency in the party primary election of the 1st Defendant on 6/1/2011.
This relief is refused. The available evidence shows that the counting of the votes was disrupted. The election was therefore not conclusive.
(d) An order of injunction restraining the 1st Respondent from presenting the 2nd Respondent as its candidate to run the 2011 general election into the House of Representatives for the Bonny/Degema Federal Constituency.
To me, this relief has become academic. A court cannot restrain an action which has been concluded. Besides, the issue of primary election is a domestic affair of the party concerned. We cannot use this to inflict inconvenience on the other parties by ordering another primary election with a view to having another general election.
Finally the appeal succeeds in part. Parties are to bear their respective costs.
EJEMBI EKO, J.C.A.: In the build up to the 9th April, 2011 general elections conducted throughout the Federation, including Rivers State, the Peoples Democratic Party (PDP) in Bonny/Degema Federal Constituency organised its primary election on 6th January, 2011 to elect its candidate from the several aspirants who desired, within the party, to be sponsored as a candidate in the general election to elect the person to represent the Bonny/Degema Federal Constituency in the House of Representatives. It was delegates election. The aspirants are the present appellants and the 2nd respondent.
The return of the 2nd respondent, as the duly elected candidate of the PDP for Bonny/Degema Federal constituency to contest against candidates of other political parties was controversial. The controvery culminated in the litigation at the High court of Rivers State. The appellants were the claimants. The High Court dismissed their claims on 24th June, 2011. In the meantime the PDP, 1st respondent in this appeal, had officially presented the 2nd respondent to the Independent national Electoral Commission (INEC) as her candidate. He was placed on the ballot as a candidate sponsored by the PDP and contested as such in the general election along with candidates sponsored by other political parties. The general elections had come and gone since April, 2011.
The circumstance of this case makes me think now that we are being called upon to decide a moot or academic question. The courts in Nigeria follow a laid principle that they exercise their jurisdiction with respect to only live issues and would not dabble into matters that are academic, fanciful or hypothetical. See AKEREDOLU v. AKINREMI (1986) 2 N.W.L.R. (pt. 25) 710 of 725; EKPEROKUN v. UNIVERSITY OF LAGOS (1986) 4 N.W.L.R. (PT. 34) 162 of 177.
An issue becomes academic when no useful purpose will be attained by an action or appeal or any issue raised therein other than its mere academic interest. See OGBONNA v. PRESIDENT, F.R.N. (1997) 5 N.W.L.R. (pt.504) 281; ACTION CONGRESS v. INEC (2001) 18 N.W.L.R. (Pt.1065)50. Academic matters may be of interest to professors and the academia generally. They ore certainly of no interest to judges or courts in our jurisprudence who regard academic issues as mere frolics. As Onu, JSC in A.G. ANAMBRA STATE v A.G. FRN (2005) 9 N.W.L.R. (Pt.391) 572 had put it, the courts have “said in many cases that (they have) no jurisdiction to give advisory opinions or deal with hypothetical or academic questions”.
Having before now read in draft the judgment just delivered by my Learned brother, MODUPE FASANMI, JCA; I am in agreement with her conclusion that issues in this appeal have become academic. They are no longer live, the general election in Bonny/Degema Federal constituency having been conducted by INEC to elect, from amongst the candidates sponsored by various political parties who are not parties to the action culminating in this appeal.
I will not reward the appellants with order for costs for this academic or frolicsome appeal. If I must of all award costs it should be awarded against the appellants. I think I should leave the parties to bear their respective costs.
CHIOMA E. NWOSU – IHEME (Ph.D) J.C.A.: I read in draft the judgment just delivered by my learned brother, MODUPE FASANMI, JCA. I agree with and adopt his reasoning and conclusions. The appeal succeeds in part.
I subscribe to the consequential orders made in the lead judgment inclusive of the one for costs.
Appearances
B.M. Wifa, (SAN) with him is E. Alikor, Esq.For Appellant
AND
E.C. Aguma with him is I.L. Aduo appears for the 2nd Respondent.
M.U.S. Amadi Oparaeli appears for the 1st & 3rd Respondents.For Respondent
