MR OSAZEE OJO v. MRS JACOB ESOHE & ORS
(1999)LCN/0501(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of April, 1999
CA/B/91/99
JUSTICES:
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
Between
MR OSAZEE OJO Appellant(s)
AND
- MRS JACOB ESOHE
2. ROSELYN ANAMY EGBORGE
(Returning Officer)
3. (INDEPENDENT NATIONAL ELECTORAL COMMISSION) Respondent(s)
RATIO
THE PRIMARY FUNCTION OF THE TRIAL COURT
In Atolagbe v. Shorun; (1985) 1 NWLR (Pt.2) 360 (1985) 4 S.C.(Pt.1) 250 at 265 the Supreme Court per Coker J.S.C. stated of the functions of pleadings thus:-
“The primary function of pleadings is to define and delimit with clarify and precision the real matters in controversial between the parties upon which they can prepare and present their respective cases and upon which the court will be called on to adjudicate between them,”
On the general functions or pleadings see also Civil Procedure in Nigeria by F. Nwadialo pages 249-257 and Bullen & Leake and Jacob’s Precedents of Pleadings 12th Edition pages 7-8. PER TABAI, J.C.A.
THE POSITION OF THE LAW IN PROVING THE FALSIFICATION OF AN ELECTION RESULT
The petitioner in this petition challenged the return or declaration of the first respondent as the member representing Egor Local Government Constituency in the Edo Stare Assembly. The challenge is on the ground of falsity of result. To succeed on this ground, the petitioner is required to plead inter alia two sets of facts. One in respect of the false result and the other relating to the result the petitioner considers to be correct or genuine as shown on the primary evidence of the result. Form EC 8 A. It is the two sets of result that would be compared to determine the falsity or otherwise of the result. In Sabiya v. Tukur (1983) N.S.C.C. 559, 560; (1983) 11 S.C 109 the Supreme Court said as per Irikefe, J.S.C. as he then was.
“In my view, to prove falsification, it is basic that there should be in existence at least two results one of which could be stigmatized as genuine and the other false.”
(Italics mine).
And in Nwobodo v. C. C. Onoh (1984) 1 S.C. 1, 58. (1984) S.C.N.L.R.1 34, Supreme court per Bello, J.S.C (as he then was) stated that:-
“To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officer, a petitioner, must not only prove the results collated by assistant returning officer but must also prove the votes counted by the presiding officers and the scores of each candidate at the polling booths which were the basis of the collation. Production of the results of the poll counted at the polling booths by the presiding officer is an essential element of the burden of proof under the circumstance.” (italics mine). PER SALAMI, J.C.A.
TABAI, J.C.A. (Delivering the Leading Judgment): In the election into the Edo State House of Assembly, held on the 9th of January 1999, both the petitioner/appellant, Mr. Osazee Ojo, and the 1st respondent, Mrs. Esohe Jacob contested for the seat in the Egor Local Government Constituency. At the close of the election the result announced by the 2nd and 3rd respondents was that while the appellant of the All peoples Party (APP) scored 10,694 votes, the 1st respondent of the Peoples Democratic Party (PDP) scored 10,709 votes. The 1st respondent was therefore declared and returned as the duly elected representative for the Egor Local Government Constituency of Edo State having secured a majority of lawful votes. Exhibit ”A” dated the same 9th January, 1999 was the evidence of such election and return.
On the 22nd January 1999, the petitioner/appellant presented an 8 paragraph petition to the Governorship and Legislative Houses Elections Tribunal. In paragraphs 6 and 7 thereof the appellant asserted that the 1st respondent’s declaration and return was wrong and that the result declared contained arithmetic or mathematical errors. In paragraph 7 in particular, he gave a table containing the scores of each candidate in each of the ten wards that make up the constituency and asserted, in conclusion, that he scored 10,668 votes as against the 1st respondent’s score of 10,668 votes and prayed, therefore, that he be declared and returned as duly elected having won a majority of lawful votes. With reference to the scores in ward 09 it was his assertion that while he scored 1,281 votes the 1st respondent scored 1,521 Votes.
In her reply of 8 paragraphs, the 1st respondent denied any arithmetic or mathematical errors in the results in Exhibit “A” which she asserted, therefore contained the valid and lawful votes of 10,709 for her and 10,694 for the appellant. With respect to ward 09 she asserted that she scored 1,562 votes and not 1,521 alleged in paragraph 7 of the petition. The 2nd and 3rd respondents also filed a five paragraph reply in which they denied the allegations contained in paragraphs 6, 7 and 8 of the petition.
At the trial the petitioner/appellant and one other witness testified in support of the petition. In the course of the proceedings the petitioner sought to tender through the PW1, 18 units results of Ward 09 but the tribunal sustained the 1st respondent’s objection to their admissibility on the ground that they were not pleaded. At the end of the trial the tribunal dismissed the petition.
Against that decision the appellant has now appealed to this court, the grounds of appeal without their particulars being:
(i) Tribunal erred in law in dismissing the petitioner/appellant’s petition when it was clear on the record that the petitioner/appellant scored majority of lawful votes case at the said election; and (ii) The tribunal erred in law in refusing to admitted results in Ward 9 as exhibit.
In his brief of argument the appellant formulated the following two issues for determination.
(a) Whether the petitioner/appellant scored majority of lawful votes cast at the election and ought to be declared elected and/or returned.
(b) Whether the tribunal was right in rejecting the result of Ward 9 of the said constituency.
The 1st respondent formulated only one issue for determination and that is whether or not the appellant’s petition was rightly dismissed by the Election Tribunal.
In his argument, the appellant contended that the only issue is whether the 1st respondent scored 1,521 votes or 1,562 votes in Ward 9 and submitted that since it was the appellant that adduced evidence in support of his assertion which was not rebutted, the figure 1,521 ought to have been accepted by the tribunal. He relied on Nwabuoku v. Ottih (1961) ANLR 57; (1961) 2 SCNLR 232. He also relied on the evidence of the PW1 to the effect that it was the ward’s returning officer, one Mr. Osaigbovo Monday that inflated the results for Ward 9 to favour PDP with extra 41 votes which affected the result in favour of the 1st respondent. He argued that the PW1 corroborated the evidence of the petitioner and submitted that their evidence about the scores of the parties ought to have been accepted. It was the contention of the appellant that the tribunal was wrong to have rejected the results from the units in Ward 9 since the overall results of the said units make up the result for the ward. He submitted that a pleader must plead only material facts and not evidence and that documents in support of a pleaded fact need not be pleaded. In support of this argument he cited Odunsi v. Bamgbala (1995)27 LRCN 187 at 218; (1995) 1 NWLR (Pt.374) 641. It was the contention of the appellant that had the documents been admitted the petitioner/appellant would have scored 1,281 votes and the 1st respondent 1,523 votes in Ward 9 bringing the total scores to 10,688 votes for the appellant and 10,670 for the 1st respondent. He concluded by contending that with the rejection of the documents no substantial justice had been done and re-emphasised the warning by the Supreme Court against the perpetuation of injustice in Samson Awoyala v. Joshua Ogunbiyi (1985) 10 S.C. 35 at 76. he urged that the appeal be allowed.
In the 1st respondent’s brief of argument, it was contended that in view of the averments in paragraph 7(a) of the petition the issue whether or not the petitioner/appellant scored a majority of lawful votes cast at the election and ought therefore to be declared or returned did not arise for the determination of the Election Tribunal because it was not a ground for the petition. According to her whether or not a person was elected by a majority of valid votes cast at the election is a specific ground for election petition under Section 134(1) (c) of Decree No.3 of 1999. According to the 1st respondent the only reference to a majority of lawful votes was contained in the prayer in paragraph 8 of the petition and since it was not specifically pleaded that the appellant had a majority of lawful votes the issue did not arise for the determination of the Election Tribunal and by extension does not arise for determination in this court.
The 1st respondent referred to the evidence of alteration or inflation of results in units 1 and 9 of Ward 9 and contended that since there was no pleading of these facts the evidence in respect thereof goes to no issue and ought to be expunged from the record.
It was the contention of the 1st respondent also that the issue of whether or not the tribunal was right in rejecting the result of Ward 9 of the constituency does not arise for the determination of this court since no Ward 9 result was tendered before the Tribunal and none rejected by the tribunal. She referred to the pleadings in paragraph 7 of the petition as to the scores in Ward 9 and pointed out that instead of tendering the said Ward 9 result, he sought to tender the results of the 18 units that make up the ward. She argued that the facts pleaded therein do not justify the admission of 18 result sheets.
According to the 1st respondent the real issue for determination is whether having regard to the allegations of alteration or inflation of result the petition was rightly dismissed. It was her contention that since the allegations involve the imputation of crime, such allegations must be proved beyond reasonable doubt and relied on Amonahinni v. Onemayin & Others (1991) 1 LRECN 64. The 1st respondent pointed out that the 2nd respondent was the returning officer for the House of Assembly Election for the Egor Local Government Constituency and could not therefore have been involved in ward or polling units results. It was argued therefore that the proper officer who ought to have been joined is the Ward 9 returning officer and that the non-joinder of the said officer is fatal to petition by virtue of the provisions of Paragraph 48 (1) of Schedule 6 of the Decree No.3 of 1999. It was the contention of the 1st respondent that Exhibit “A” does not show any arithmetic or mathematical errors and that there is no other document to contradict the result contained therein. She argued that since the appellant failed to make out his case against any person let alone the 1st respondent, the respondents were not obliged to lead evidence in defence. Election petitions, it was argued, are special proceedings completely divorced and separated from ordinary civil proceedings and relied on Aondokaa v. n. Gyegweh (1989) 1 NEPLR 39. In conclusion it was urged that the decision of the tribunal be affirmed.
This appeal revolves round the all pervading principles of pleadings. There are, in my view, two issues for determination in the appeal. The first is whether in the light of the pleadings the Election Tribunal was right in rejecting the admissibility of the result of the 18 units of Ward 9 in the election for the House of Assembly seat in the Egor Local Government Constituency. The second is if the answer to the first question is in the affirmative, whether the evidence in support of the petition was sufficient to sustain it.
With regard to the first question the relevant pleading is in paragraph 7 of the petition which states:-
“Your petitioner relies on the following grounds:-
(a) That the declaration of the result of Election (House of Assembly Election) contains arithmetic or mathematical errors in the figures ascribed to the petitioner and 1st respondent in the said election are wrong in all material particular.”
Under particulars (i) is produced a table containing the scores of each of the candidates in each of the 10 wards. And under particulars (ii) it is pleaded thus:
‘The petitioner scored 10,688 votes cast at the said election while the 1st respondent actually scored 10,688 votes cast at the said election.”
This pleading, as it stands, merely alleges arithmetic or mathematical errors in the figures contained in the Declaration of Result of Election (House of Assembly Election) which is Exhibit “A” without specifying any unit of units of which ward or wards of the constituency in which the alleged errors occurred, It is common knowledge that a ward of a Constituency is made up of many polling units and in the absence of specific indication in the petition or the particular unit or units of a particular ward or wards in which the alleged arithmetic or mathematical errors occurred, I do not think there is sufficient pleading to justify the admission either of all the units in the 10 wards or the Constituency or all the units of Ward 9.
It was the contention of the appellant that in view of the assertion in paragraph 7 of the 1st respondent’s reply to the effect that her scores for Ward 9 were 1,562 and not 1,521 stated in the petition, the 1st respondent’s scores in ward 9 was in issue and for which therefore the results of the 18 units of Ward 9 were admissible. With respect, apart from the figure 1,521 under PDP in the table in paragraph 7 of the petition, neither the result of ward 9 nor the results of the 18 units that make up the said ward were specifically pleaded. The evidence in support of the petition shows that the mathematical errors complained of were allegedly contained in units 1 and 9 of ward 9 and not in all the 18 units of the said ward. The evidence also shows that the said errors were discovered even before the petition was presented. Therefore, the said results of units 1 and 9 which, according to the petitioner, would make all the difference in the overall result was, no doubt, the most material fact to sustain the petition and under the general rules of pleadings it was only fair to the 1st respondent and even the tribunal that the results of these two units of Ward 9 were specifically pleaded. In the circumstances of this case, without specific pleadings of the results of units 1 and 9 of Ward 9, the petitioner not only failed to clarify with precision the issues or questions in dispute for trial, but also failed to give proper notice to the 1st respondent or the case she was to meet. In Atolagbe v. Shorun; (1985) 1 NWLR (Pt.2) 360 (1985) 4 S.C.(Pt.1) 250 at 265 the Supreme Court per Coker J.S.C. stated of the functions of pleadings thus:-
“The primary function of pleadings is to define and delimit with clarify and precision the real matters in controversial between the parties upon which they can prepare and present their respective cases and upon which the court will be called on to adjudicate between them,”
On the general functions or pleadings see also Civil Procedure in Nigeria by F. Nwadialo pages 249-257 and Bullen & Leake and Jacob’s Precedents of Pleadings 12th Edition pages 7-8.
In the light of the foregoing considerations, it is my view that there were no pleadings sufficient to justify the admission of the results of the 18 units of ward 9. I hold therefore that the tribunal was right in rejecting the documents relating thereto.
I now come to the last question of whether there is sufficient evidence to sustain the petition. At the trial oral evidence was adduced with regard to scores in units 1 and 9 of ward 09 without objection. In its judgment the tribunal relying on the provisions of paragraph 5(1)(d) of Schedule 6 of Stale Government, (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1991 and the Supreme Court decision in Okafor v. Okitiakpe (1973) 2 S.C. 49 expunged that evidence on the ground of lack of or insufficiency of pleadings. I do not fancy any strong reason to disturb that decision of the tribunal. Also at the trial in addition to the evidence of arithmetic or mathematical errors alleged in the petition there was evidence of alteration or inflation of results. The PW1 even testified to the effect that the Wards Returning Officer Mr. Osaigbovo Monday inflated the results for Ward 9 in favour of the PDP. These allegations of electoral offences were equally not pleaded, evidence in that respect ought to have been rejected and is hereby expunged.
Finally the 1st respondent’s election and return is contained in Exhibit “A” tendered through the PW1. He said it was issued in his presence. And the petitioner said that it was prepared in the presence of his agent who also signed the result. Exhibit “A” therefore remains a strong evidence and i do not think that the mere oral evidence that the petitioner scored 10,688 votes as against the 1st respondent’s score of 10,668 or 10,670, without more, is enough to displace it.
In conclusion, I hold that the petition was rightly dismissed by the tribunal. This appeal therefore fails and is accordingly dismissed with costs assessed at N2,000.00 in favour of the 1st respondent.
SALAMI, J.C.A.: I have had a preview of the judgment just delivered by my learned brother. Tabai, J.C.A. I am entirely in agreement with the reasoning and the conclusion contained therein.
The petitioner in this petition challenged the return or declaration of the first respondent as the member representing Egor Local Government Constituency in the Edo Stare Assembly. The challenge is on the ground of falsity of result. To succeed on this ground, the petitioner is required to plead inter alia two sets of facts. One in respect of the false result and the other relating to the result the petitioner considers to be correct or genuine as shown on the primary evidence of the result. Form EC 8 A. It is the two sets of result that would be compared to determine the falsity or otherwise of the result. In Sabiya v. Tukur (1983) N.S.C.C. 559, 560; (1983) 11 S.C 109 the Supreme Court said as per Irikefe, J.S.C. as he then was.
“In my view, to prove falsification, it is basic that there should be in existence at least two results one of which could be stigmatized as genuine and the other false.”
(Italics mine).
And in Nwobodo v. C. C. Onoh (1984) 1 S.C. 1, 58. (1984) S.C.N.L.R.1 34, Supreme court per Bello, J.S.C (as he then was) stated that:-
“To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officer, a petitioner, must not only prove the results collated by assistant returning officer but must also prove the votes counted by the presiding officers and the scores of each candidate at the polling booths which were the basis of the collation. Production of the results of the poll counted at the polling booths by the presiding officer is an essential element of the burden of proof under the circumstance.” (italics mine)
In the instant appeal, the appellant failed to plead and adduce evidence on the results characterised as genuine as well as the one considered fake or false. The appellant neglected to pursue the substance by so doing and made for the shadow. The purported collation of AD 45, APP 1,281 and PDP 1,521 pleaded in the petition in respect of Ward 9 cannot be found on any official result sheet. It is the appellant’s view of what the result should be, it is neither the genuine results which are invariably the presiding officers’ counting of votes at the polling booths nor the result considered as falsified or false credited to the first respondent which in this case is 1,562. Since these two basic sets of result are not pleaded and proved the petition is not established as required and it is bound to fail as it did.
For this reason and the fuller reason contained in the judgment of my learned brother. Tabai, J.C.A., I, too, dismiss the appeal. I abide by order as to costs proposed in the said lead judgment.
MOHAMMED, J.C.A.: I have read in advance the judgment just delivered by my learned brother Tabai J.C.A. I entirely agree with him that this appeal has failed. Accordingly, I also dismiss the appeal with N2,000.00 costs in favour of the 1st respondent.
BA’ABA, J.C.A.: I have had the opportunity of reading in draft the reasons for the judgment just read by my learned brother, Tabai, J.C.A. I am in complete agreement with those reasons and respectfully adopt them as mine. The appeal therefore fails and is hereby dismissed. I also award a cost of N2,000.00 in favour of the respondent.
Appeal dismissed.
IBIYEYE, J.C.A.: I have read before now the lead judgment delivered by my learned brother, Tabai, J.C.A. I agree with him that there is no merit in this appeal. The appeal therefore fails and it is dismissed. I abide by the order on costs of N2,000.00 assessed in the lead judgment.
Appeal dismissed.
Appearances
Chief Charles Adogah For Appellant
AND
- O. Aghimien
