MR. WILLIAM BALLANTYNE v. HON. ESSIEN EKPENYONG AYI & ORS.
(2011)LCN/4990(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/C/NAEA/268/2011
RATIO
JURISDICTION OF THE ELECTION TRIBUNAL: STATUTORY PROVISION ON THE JURISDICTION OF THE ELECTION TRIBUNAL
My humble view is that appellant has misconstrued the purport of the provisions of Section 285 (1)(a)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 which reads as follows: “285(1) They shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether:- (a) any person has been validly elected as a member of the National Assembly, (b) the term of office of any person under this Constitution has ceased; (c) the seat of a member of the Senator or a member of the House of Representatives has become vacant, and (d) a question or petition brought before the election tribunal has been properly or improperly brought. ” PER JOSEPH TINE TUR, J.C.A.
PROOF OF FLASITY OF COLLATED RESULT: WHAT A PETITIONER MUST PROVE TO ESTABLISH THE FALSITY OF A COLLATED RESULT BEYOND REASONABLE DOUBT
In Nwobodo vs Onoh (1934) 15 NSCC 1 Bello, JSC (as he then was) held at page 22 that: “To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officers, a petitioner must not only prove the results collated by assistant returning officers, but must also prove the quotes counted by the presiding officers and the scores of each candidates at the polling booths which were the basis of the collation.” PER JOSEPH TINE TUR, J.C.A.
PROOF OF ALLEGATION OF NON-VOTING: WHETHER ALLEGATION BY A PETITIONER THAT THERE WAS NO VOTING YET A RESPONDENT WAS CREDITED WITH VOTES CONSTITUTES CRIMINAL ALLEGATIONS THAT HAS TO BE PROVED BEYOND REASONABLE DOUBT
The allegation by a petitioner that there was no voting yet a respondent was credited with votes constitutes criminal allegations that has to be proved beyond reasonable doubt. See Michael vs. Yuosuo (2004) All FWLR (Pt.209) 1015 at 1025-, paragraph “D” – “F”, Maikudi vs Musa (2004) All FWLR (Pt.230) 1096 at 1111-1112 paragraph “H-B”; Atikpekpe vs Joe (1999) 6 NWLR (Pt.607) 428 at 439-440 and Kingibe vs Maina (2004) All FWLR (Pt.191) 1555 at 1558 paragraph “G-H”. PER JOSEPH TINE TUR, J.C.A.
GROUNDS OF ELECTION PETITION: STATUTORY PROVISION ON THE GROUNDS FOR QUESTIONING AN ELECTION UNDER THE ELECTORAL ACT NO.6 OF 2011
The legislature has also provided the grounds for questioning an election under the Electoral Act No.6 of 2011 as amended thus: “138(1) An election may be questioned on any of the following grounds, that is to say:- (a) that a person whose election is questioned was, at the time of the election not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; (c) that the respondent was not duly elected by majority of lawful votes cast at the election; or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. (2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself a ground for, questioning the election.” PER JOSEPH TINE TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
MR. WILLIAM BALLANTYNE Appellant(s)
AND
1. HON. ESSIEN EKPENYONG AYI
2. THE RESIDENT ELECTORAL, CROSS RIVER STATE (MR. MIKE IGINI)
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Independent National Electoral Commission (3rd Respondent) conducted election into the House of Representatives for Calabar South, Akpabuyo and Bakassi Federal Constituency, Cross River State on the 9th day of April, 2011. Mr William Ballantyne a legal Practitioner and candidate of the Action Congress and Hon. Essien Ekpenyong Ayi of the Peoples Democratic Party contested the election with other candidates. At the close of polls the candidates scored the following votes:
(a) William Ballantyne – 3,823 votes
(b) Essien Ekpenyong Ayi – 23,114 votes
(c) Edwin Orok Duke – 502 votes
(d) Edem Oyo-Itam – 660 votes
(e) Ako Isaac Eghiarrwa – 179 votes
(f) Salem David Joshua – 6,557 votes
The National Independent Electoral Commission declared and returned Hon. Essien Ekpenyong Ayi as duly elected to represent the three Local Government Areas that constitute the Federal Constituency in the Federal House of Representatives, Abuja, the Federal Capital Territory. Being aggrieved, William Ballantyne lodged a Petition before the Election Tribunal on 28th April, 2011 contesting the result of the election and declaration in favour of Hon. Essien Ekpenyong Ayi on several grounds. On the 4th day of July, 2011 the Tribunal struck out the petition upon the application of Hon. Ayi, during the pre-hearing session due to procedural defects. On Appeal, this Court set aside the Orders of the Tribunal and remitted the petition to be heard on the merit.
On the 14th day of November, 2011 hearing commenced before a differently constituted Tribunal. The Petitioner testified as Pw.6 and called Pw.1-5 as witnesses. The witnesses were cross-examined by learned counsel to the respondents and re-examined by the petitioner. The Petitioner closed his, case on 6/10/2011. Learned counsel to the Respondents volunteered not to call evidence. Counsel submitted written addresses to, the Tribunal. The Tribunal examined the oral and documentary evidence alongside the written addresses before dismissing the petition on the 26th day of October, 2011 as lacking in merit hence this appeal.
The Notice of Appeal was filed on the 7th day of April, 2011. Five grounds accompanied the Notice of Appeal from whence the Appellant’s learned counsel distilled four issues for determination in the appellant’s brief which was filed in this Court on 21/11/2011 and adopted at the hearing on 8/12/2011. They are as follows:
“ISSUES FOR DETERMINATTON
a. Whether an election, Tribunal has the jurisdiction to determine ,the constitutional ‘validity of the sponsorship of a candidate in on election by a political party.
b. Whether the election of 9th April 2011 for Calabar South, Akpabuyo and Bakassi Federal Constituency was conducted with the strict compliance to the provisions of the Electoral Act 2010 as amended.
c. Whether allegations of crime ore severable in election petitions.
d. Whether or not the election of 9th April 2011 for Calabar South, Akpabuyo and Bakassi Federal Constituency was conducted in lawfully delineated territory.”
The learned Senior Advocate of Nigeria appeared for the 1st Respondent and filed brief of argument on 8/12/2011 which was adopted the same day at the hearing. Four issues have been set down for hearing by the learned senior Advocate of Nigeria at page 2 of the brief to wit:
“ISSUES FOR DETERMINATION
1. Whether an election Tribunal has the jurisdiction to determine the constitutional validity of the sponsorship of a candidate in an election by a political party.
2. Whether the election of 9th April, 2011 for Calabar South, Akpabuyo and Bakassi Federal Constituency was conducted with the strict compliance to the provision of the Electoral Act, 2010 (as amended)
3. Whether allegations of crime are severable in election petitions.
4. Whether or not the election of 9th April, 2011 for Calabar South, Akpabuyo and Bakassi Federal Constituency was conducted in lawfully delineated territory. ”
Learned counsel to the 4th Respondent filed a brief of argument on 28-11-2011 and formulated four issues for determination by this Court, namely:
ISSUE FOR DETERMINATION
(i) whether the lower Tribunal was right when it held that it was not competent to determine the eligibility of the 1st Respondent to contest the National Assembly Election in respect of Calabar South, Akpabuyo and Bakassi Federal Constituency which took place on the 9th of April, 2011.
(ii) Whether the National Assembly election held on 9th April, 2011 in respect of Calabar South, Akpabuyo and Bakassi’ Federal constituency was, conducted in substantial compliance with the Provisions of the Electoral Act 2010 as Amended.
(iii) Whether the lower Tribunal was right, when it struck out certain paragraphs of the Appellant’s Petition which contained serious criminal allegations against persons who were not parties to the petition leading to the present appeal.
(iv) Whether the lower Tribunal was right when it held that the National Assembly Election of 9th April 2011 in respect of Calabar South, Akpabuyo and Bakassi Federal constituency was conducted in lawfully delineated territory.”
Though served all the processes Respondents did not respond, appear nor were they represented at the hearing of this Appeal. I shall proceed with the determination of this Court, the 2nd and 3rd of this Appeal based on the briefs filed by the petitioner, the 1st and 4th Respondents.
ISSUE ONE:
Both Counsel have agreed that the first issue to be determined by this Court is whether the Tribunal has the jurisdiction to determine the constitutional validity of the sponsorship of a candidate in an election by a political party. Before I summarize the argument of learned counsel, I shall avert to the facts pleaded by the petitioner and admitted by the respondents to wit:
“1. The 1st Respondent was the candidate under the platform of the Peoples Democratic Party in the election into the House of Representatives for Calabar South, Akpabuyo and Bakassi Federal Constituency held on the 9th day of April, 2011.
2. The 2nd Respondent is the resident Electoral Commissioner of the Independent National Electoral Commission in Cross River State of Nigeria.
3. The 3rd Respondent is the body that conducted the election into the House of Representatives for Calabar South, Akpabuyo and Bakassi Federal Constituency 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 South, Akpabuyo and Bakassi Federal Constituency held on the 9th of April, 2011.
6. The election into the House of Representatives for Calabar South, Akpabuyo and Bakassi Federal Constituency held on the 9th of April, 2011.
7. xxxxxxxxxxxxxxxxxxxxxxxxxxxx
8. Pastor Essien Ayi, 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 South, Akpabuyo and Bakassi Federal Constituency where elections were lawfully conducted by the 3rd Respondent.
10. The result of the election was declared by the 3rd Respondent on 11th April 2011.
11. The Action congress of Nigeria (sic) and the petitioner appointed agents, collation officers and co-coordinators to monitor the elections in all the polling booths in Calabar South, Akpabuyo and Bakassi Federal Constituency held on the 9th of April, 2011.”
Pleadings constitute advance notice to the opposite party of the facts to be canvassed at the trial. See Obmiami Brick and Stones Ltd vs. ACB (1992) 3SCNJ I at 35 and Uwegba vs. Attorney-General of Bendel State (1986) 1 NWLR (pt.16) 303 at 317. Admitted facts on the pleadings need no further proof. See Section 75 of the Evidence Act 2004.
From the facts pleaded by the petitioner it becomes evident that the 1st Respondent was a candidate at the election and was sponsored by the 4th Respondent. The 2nd, and 3rd Respondents are the authority that have the power to conduct the elections into the constituency and did indeed, conduct the elections on 9th April, 2011 and declared the 1st Respondent as having polled the highest number of votes hence he was retuned to represent his constituency in the House of Representative. The third concession made by the petitioner on the pleadings, is the fact that the Federal Constituency consists of Calabar South, Akpabuyo and Bakassi Local Governments. These, were not denied by the 1st Respondent in the Reply filed on 25-05-2011 to the petition.
When any judicial .or official act is done in a manner substantially regular, it is presumed that the formal requisites for its validity were complied with. See Section, 150(1), of the Evidence Act, 2004. In this case, taking into consideration the state of the pleadings, the onus is on the appellant to show, that an election Tribunal has, the jurisdiction to determine the constitutional validity of the sponsorship of a candidate in an election by a political party. This is because no one sets out to prove that which has not been denied on the pleadings. In that case the onus of proof is discharged on the pleadings. See Olale vs Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at p.102 lines 17.
The appellant referred in his argument to the provisions of Section 87(1), (4), (9)-(11) of the Electoral Act, 2010 as amended; Section 65(2Xh) and 285(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Learned Counsel argued that the mere proposal of the name of a candidate without more, does not amount to a valid nomination, citing PPA & Anor vs INEC & 3 Ors (2010) 12 NWLR (Pt.1209) 70; Ali vs Osakwe (2010) 4 NWLR (1209) 70; Ali vs. Osakwe (2010) 4 NWLR (1209) 70; Ugwu vs. Araraume (2007) 6 SC 88 at 186; Amaechi vs INEC (2008) 5 NWLR (Pt.1080) 227.
Counsel referred to paragraphs 42-45 of the petition to show that the 1st Respondent was not validly nominated by the 4th Respondent to contest the election. That these averments were not contested by the respondents. Counsel commended to this Court the judgment in Osigwelem vs INEC & 2 Ors (2011) 9 NWLR (Pt.1253) 425. The appellant urged that the question raised in issue one be resolved in his favour and the appeal should be allowed.
The learned Senior Advocate of Nigeria replied that the jurisdiction to deal with issue one raised by counsel is governed by the provisions of Section 87(10) of the Electoral Act, 2010 as amended. That jurisdiction vests in the Federal or State High Court, citing the authority of Obasanjo vs. Yusuf (2004) 9 NWLR (Pt.877) 144 at 183 and 213. Counsel referred to the judgment of the Federal High Court, Calabar, in suit No.FHC/CA/CS/17/2011 viz Senator Liyel Imoke and 38 Ors vs INEC (Unreported) decided on the 24th day of March, 2011 which settled the issue of the sponsorship of the 1st Respondent to contest the election on the platform of the 4th Respondent from which there had, been no appeal. Being a final decision of a competent Court of justice, the learned Senior Advocate submitted that the appellant could no longer raise the issue at the Tribunal and before this Court, citing Agbogunleri vs. Depo (2008) 3 NWLR (Pt.1074) 217 at 233-234; Amaechi vs. INEC (200S) 5 NWLR (Pt. 1030) 227 at 310-311. Learned counsel referred to the judgment of the Supreme Court in Odedo vs. INEC (2003) 17 NWLR (Pt.1117) 54 at 602; ANPP vs. Argungu (2009) 17 NWLR (Pt. 1171) 445 at 463 to submit that the provisions of Section 285 (1) of the Constitution of the Federal Republic of Nigeria 1999 provided for the determination of whether any person has been validly elected as a member of the National Assembly but had nothing to do with sponsorship of a candidate at the elections.
Learned Counsel to the 4th Respondent argued that parties are bound by their pleadings and will not be allowed to set up in Court a case at variance with their pleadings, citing Kalu vs. Uzor (2006) 8 NWLR (pt.981) 66 at 87, That having admitted in the pleadings that the 4tr Respondent sponsored the 1st Respondent at the election, the appellant cannot turn around and challenge the eligibility of the 1st Respondent to contest the election. Counsel referred to the unreported judgment of the Federal High Court Calabar in Suit, No.FHC/CA/CS/17/2011 viz: Senator Liyel Imoke and 48 others vs. INEC which was tendered through the appellant on 29/9/2011 during cross-examination without objection to urge this Court to resolve’ this issue in favour of the Respondents.
In view of the admissions made by the appellant in the petition which I alluded to it is my humble opinion that the appellant has failed woefully to show that the Tribunal erred in arriving at the holding at page 307 lines 23 to page 309 lines 1-25 of the printed record as follows:
“This is so because the issue had been resolved by the Federal High Court, Calabar Division in Suit No. FHC/CA/CS/17/2011 between Senator Liyel Imoke and 38 Others vs INEC (unreported), judgment delivered on 24th March, 2011 wherein the Court made the following declarations:
“(1) A declaration is made that the defendant has no longer Power and authority to reject, for any reason whatsoever, the names of the plaintiffs who are being sponsored by the Peoples Democratic Party as its candidates to contest for various offices in Cross River State at the April, 2011 general election.
(2) A declaration is hereby made that the defendant has no legal power and authority to disqualify for any reasons whatsoever the plaintiffs who are the candidates of the People Democratic Party for various offices in Cross River State at the April 2011 general elections.
(3) A declaration is hereby made that the plaintiffs were properly and validly nominated and their names properly submitted to the Defendant by the Peoples Democratic Party in mid January, 2011, well within the time allowed by the election timetable as its candidates to contest for various offices in Cross River State at the forth coming general elections.
(4) A declaration is hereby made that having accepted the list containing the name of the plaintiffs submitted by Peoples Democratic Party in mid January, 2011, well within the time allowed by the election timetables, as the candidates sponsored by the party in Cross River State for various offices at the April, 2011 general elections without complaint or reservation, the defendant is estopped from turning around on or about the 10th of February, 2011 after the last day for submission of the names of candidates had passed to reject or nullify the said list and disqualify the plaintiffs as candidates at the said elections.
(5) An order is hereby made compelling the defendant to recognize the plaintiffs as the candidates sponsored by the Peoples Democratic Party in Cross River State for various offices at the April, 2011 general elections.
(6) An order is hereby made restraining the defendant from rejecting or purporting to reject or disqualify the plaintiffs as the candidates of the Peoples Democratic Party for various offices in Cross River State at the April, 2011 general election.”
It is not in doubt that the above judgment is in evidence before the Tribunal as Exhibits 39-395 and that the 1st Respondent in this petition was a party in the suit. No evidence has been adduced before the Tribunal that the judgment of the Federal High Court, Calabar Division in Exhibit 39-395 has been reversed by A higher Court, on appeal, or at all. This Tribunal is bound in law to refrain from reopening the issue of the 1st Respondent’s eligibility to contest the April 9th, 2011 election for the purpose of re-adjudicating upon same which has already been determined by the Federal High Court, Calabar which, by all means, is a court of competent jurisdiction.”
These findings are amply supported by the evidence adduced on record. Section 54 of the Evidence Act, 2004 provides that:
“54. Every judgment is conclusive proof as against parties and privies facts directly in issue in the case actually decided by Court and appearing from the judgment itself to be the ground on which it was based.”
My humble view is that appellant has misconstrued the purport of the provisions of Section 285 (1)(a)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 which reads as follows:
“285(1) They shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether:-
(a) any person has been validly elected as a member of the National Assembly,
(b) the term of office of any person under this Constitution has ceased;
(c) the seat of a member of the Senator or a member of the House of Representatives has become vacant, and
(d) a question or petition brought before the election tribunal has been properly or improperly brought. ”
Section 285(1)(a) of the Constitution supra vests to the exclusion of any Court or Tribunals “original jurisdiction to hear and determine petitions as to whether (a) any person has been validity elected as a member of the National Assembly; (b) the term of office of any person under the Constitution has ceased; (c) the seat of a member of the Senator or a member of the House of Representatives has become “vacant” Under Section 285(1)(d) of the Constitution supra where a question or petition has been improperly brought before the election Tribunal, the Tribunal shall decline jurisdiction particularly in a situation where the petitioner/appellant sought to confer jurisdiction on the Tribunal to sit on appeal or review the judgment of the Federal High Court, being a Court of competent jurisdiction. The issue of sponsorship of the 1st Respondent by the 4th Respondent was settled by the Federal High Court, Calabar in the judgment between Senator Liyel Imoke & 38 ors vs INEC on 24th day of March, 2011. That judgment has not been shown by the appellant to have been set aside on appeal; it is subsisting and conclusive of the matter in issue one.
Moreover, section 87(10) of the Electoral Act No.6 of 2010 as amended reads as follows:
“87(10) Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party or nomination of a Candidate of a political High Court or the High of a State, must seek for redress.”
The appellant is not a member of the Peoples Democratic Party nor did he aspire to a political office on the platform of that party. The appellant did not come, within the word “aspirant” to be, clothed with the, right to challenge the selection, nomination or sponsorship of the 1st Respondent for non-compliance with the provisions of the Election Act, 2010 as amended. Senator Liyel Imoke & 38 Ors successfully did so at the Federal High Court on 24th March, 2011.
The 1st Respondent’s name appears in the judgment of the Federal High Court as No.7. That complies with the provisions of Section 37(10) of the Electoral Act No.6 of 2010 as amended. There is no substance to the argument raised in issue one and I so hold.
ISSUE TWO:
The appellant’s complaint in issue two is that the election was not conducted in strict compliance with the provisions of the Electoral Act, 2010 as amended. Reference was made to the provisions of Section 63(1) and 74 of the Electoral Act, 2010 as amended which, required Forms EC8A to be stamped and signed by the Presiding Officers and counter signed by the candidates or their polling agents where available at the polling booths. That the number of voters on the queue must be counted and recorded in Form EC8A. Learned Counsel submitted that when it was negatively pleaded in paragraph 48 of the petition that the election was invalid by reason of non-compliance, with the provisions, of the Electoral Act, 2010 as amended, the burden, shifted to the respondents to plead the constitutive, activities that will establish without doubt that free and fair elections were conducted in substantial compliance with the provisions of the Act such as the distribution of Electoral materials, accreditation of voters, etc. But the respondents did not lead any evidence that the election was lawfully conducted in substantial compliance with the provisions of the Electoral Act as amended.
Counsel referred to Exhibits 1-32, arguing that there were no voters on queue at the commencement of voting in 56 polling units. In 66 polling units more votes were cast than the number of voters on the queue at the commencement of voting in the constituency. Forms E8(A)(i), of, polling, units in ten wards in Bakassi Local Government were signed by One agent of the 1st and 4th Respondents named Effiong Etim Okon. That the evidence of PW1 that he monitored the materials from INEC which were taken to Assurance Secondary Commercial School in Ikang Central where everything was done was never challenged by the Respondents and was deemed admitted. That it was not possible for Effiong Etim Okon to, be an agent of the 4th Respondent at sixteen different locations in a terrain as vast and difficult as the ceded Bakassi Local Government at the same time. Counsel submitted that the finding that there was evidence to rebut the presumption that the result was authentic is perverse and against the weight of evidence. Counsel urged this Court to resolve issue two in his favour.
The learned Senior Advocate who appeared for the 1st Respondent replied that having pleaded non-compliance with the provisions of the Electoral Act, 2010 as amended the burden was on the appellant, to prove the allegations, citing Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1. Counsel argued that there was no evidence to support the complaint of non-compliance with the provisions of the Electoral Act, 2010, as, amended and how this affected, the result of the election. This is because the appellant’s witnesses had admitted that elections held in the constituency. The appellant did not call a single witness from any polling unit to prove non-compliance, citing Iniama vs Akpabio (2003) 17 NWLR (Pt.1116) 255 at 333. That this was fatal to his case at the Tribunal and in this Court. That the heavy weather made by the appellant in respect to the evidence of Effiong Etim Okon signing all the results for Bakassi was based on unpleaded materials and went to no issue, citing Ajikanle vs Yusuf (2008) 2 NWLR (Pt.1071) 301. The learned Senior Counsel urged this Court to resolve this issue against the appellant.
The learned Counsel to the 4th Respondent replied that the appellant had failed to prove non-compliance, with the provisions of the Electoral Act, supra on the balance of probabilities. That there was material contradictions in the facts pleaded in paragraphs 12-15, 17, 22-23, 25 and 26 of the petition. The oral evidence was at variance with the pleadings. Counsel referred to Section 150 of the Evidence Act, 2004 as raising, a presumption that the election was duly conducted in all the wards of Calabar South, Akpabuyo and Bakassi, Federal Constituency including the disputed areas. The onus rested on the appellant to prove otherwise. Reference was made to Nnaji vs Agbo (2006) All FWLR (Pt.305) 736 paragraph B-C and page 759 paragraphs F-G. Counsel argued that no provisions of the Electoral Act as amended provides for the holding of a perfect election; rather the proper approach is to consider whether having regard to all the relevant circumstances the election of 9th April, 2011 was conducted in substantial compliance with its provisions of the Act supra, citing Buhari vs INEC (2009) All FWLR (Pt.459) 419 and 531-532. Learned Counsel urged that issue two should be resolved against the appellant.
The law is well settled that he who alleges must prove. See Peter Obiaku vs Ignatius Ekesiobi (2003) FWLR (Pt.166) 661. In Akinfosile vs Ijose,(1960) 5 FSC 192 the petitioner challenged the result of the elections on the grounds of non-compliance with some provisions of the Election (House of Representatives) Regulations, 1958 and 1959. The argument raised by Chief Rotimi Williams of blessed memory in that case was that once any non-compliance with the Regulations has been shown by the petitioner, the onus shifts to the respondent to satisfy the Court trying an election that the non-compliance did not affect the result of the election. The Federal, Supreme Court rejected this argument.
Abbott F. J., held at page 198 as follows:
“…The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading.”
At page 199 of the judgment Abbott F.J., held that:
“I am firmly of the view as above indicated, that a compliance and avers in his prayer that the non-compliance was substantial, must so satisfy the court. This, the petitioner failed to do. ”
In my judgment the onus of proving non-compliance with any provision of the Electoral Act 2010 as amended did not shift to the Respondents at the Tribunal but rested on the appellant. The Tribunal examined the oral and documentary evidence before coming to the conclusion that the appellant had not been able to prove non-compliance with any provision of the Electoral Act, 2010 as amended.
Paragraph 11 of the petition pleaded that the appellant and his politic al party appointed agents, collation officers and coordinators to: monitor the elections in all the polling booths in the constituency for the election held on the 9th day of April, 2011. Pw1 at the Tribunal was, Pastor Ausa, Effanga, He was disallowed from testifying because his deposition did not accompany the petition when it was filed. PW1 (Eyo Efion) monitored the election in Bakassi Local Government as Collation officer for the petitioner. There are ten wards in the Local Government. His evidence did not cover- what happened in Calabar South and Akpabuyo Local Government Areas. Pw2 (Richard Bassey Adams) was the appellant’s collation agent during, the election. Pw2 testify, that he monitored various units in Calabar, South Local Government without naming them. Honourable Okon Nyong Effion testified as Pw3 that he was a collation officer to the petitioner, in the elections held on 9th April, 2011. The witness admitted he was not at any particular polling booth during the voting process though he went round to monitor the voting at Akpabuyo Local, Government Area. Pw4 was Charles Etim. He admitted under cross-examination that he and his polling agents had access to the polling units during the election. Pw5 was a collation-officer but not a collation agent who voted at Calabar South Local Government Area where the appellant had one presiding officer. The witness admitted that he was a collation officer for just only, one ward.
The appellant testified as Pw6 and tendered documentary exhibits. The appellant admitted having agents in all the polling units during the election. Under cross-examination by Joe Agi SAN Pw6 answered thus, “…The evidence I gave on the rigging except that in my units were based on reports from my agents. The polling agents were not allowed to testify by you. The others who testified were monitors and not agents. The position of monitors is not provided for in the manual….” Pw6 admitted that he was in Calabar South on the day of the election. The effect of the evidence adduced by Pw6 at the Tribunal was that though he had agents in all the polling units in the three Local Government Areas that comprise the constituency, none was called to testify at the trial.
In Nwobodo vs Onoh (1934) 15 NSCC 1 Bello, JSC (as he then was) held at page 22 that:
“To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officers, a petitioner must not only prove the results collated by assistant returning officers, but must also prove the quotes counted by the presiding officers and the scores of each candidates 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 officers is an essential element of the burden of proof under the circumstances of the petition: Except for petitioner through his witness produced the results at the 96 polling stations, exhibit “A, A1-95″, in the constituency no such evidence was led in respect of all the other constituencies in the 3 Local Government Areas is dispute… ”
His Lordship continued at page 23 of the judgment as follows:
“…Polling stations are the concrete foundation on which the pyramid of an election process is built. Primary and secondary collation centres are administrative machinery devised by the FEDECO in order to enhance efficiency and speedy declaration of the final result of the election. There is no provision in the Electoral Act, 1982 for collations at the constituency and local government Area levels in a gubernatorial election. At the price of long delay in announcing the result of the election, the results counted at the polling booths may be directly sent to the returning officer who will declare the result of the election after he has collated the results from all the polling stations in the state. The trial Court, the Federal Court of Appeal and this Court could do the same exercise, if the results of the poll at the polling booths were before the Court. So could any reasonable person. The Petitioner failed to furnish the necessary data to the trial Court to resort to this exercise and so he did not discharge the onus of proof required of him by Section 137(1) of the evidence Act.”
Applying, this authority to the facts of this appeal it will be seen that the evidence adduced by the appellant to prove non-compliance was based on the reports he received from his agents none of whom testified, as to what happened at any polling booth or unit in any of the three Local Government Areas that constitutes the Federal Constituency. Pw6’s evidence amounted to hearsay evidence to which no reasonable Tribunal or Court of law would attach weight to. See Section 92(l) of the Evidence Act, 2004; Subramanian vs Public Prosecutor (1956) 1 WLR 969; and Sadau & Anor vs The State (1968) 1 All NLR 125.
Paragraphs 12-47 of the petition pleads facts which bothers on criminal offences, example, distribution of food items and monies to prospective voters during election; 1st Respondent being arrested with several , Voter’s Cards, ballot papers, result sheets; bribing polling’ agents, harassment and intimidation of prospective voters and agents; stuffing ballot boxes with multiple thumb-printed ballot papers; recording of votes for voters who did not personally vote; preventing voters from voting by threat of violence, force and death; absence of accreditation of voters in most polling booths, etc. There was not an iota of evidence to prove these criminal allegations beyond reasonable doubt.
The allegation by a petitioner that there was no voting yet a respondent was credited with votes constitutes criminal allegations that has to be proved beyond reasonable doubt. See Michael vs. Yuosuo (2004) All FWLR (Pt.209) 1015 at 1025-, paragraph “D” – “F”, Maikudi vs Musa (2004) All FWLR (Pt.230) 1096 at 1111-1112 paragraph “H-B”; Atikpekpe vs Joe (1999) 6 NWLR (Pt.607) 428 at 439-440 and Kingibe vs Maina (2004) All FWLR (Pt.191) 1555 at 1558 paragraph “G-H”.
Since none of the polling agents nor presiding officers testified so as to be cross-examined and to tender their reports, the Tribunal was right in holding that non-compliance with the provisions of the Electoral Act No.6 of 2010 as amended was not proved. See Atikpekpe vs Joe and Nwobodo vs Onoh supra. The appellant did not discharge the onus of showing the falsity or otherwise of the results declared by the 2nd and 3rd Respondents. See Sabiya vs. Tukur (1933) NSCC 559 at 560 and Seikegba vs Penawor (2003) 1 NWLR (Pt.2) 56 at 71-72. I resolve issue two against the appellant.
ISSUE THREE:
Under issue three the appellant posed the question whether allegations of crime in a petition are severable, citing Ogboru vs Uduaghan (2011) 2 NWLR (Pt.1232) 604. The appellant stated that issue three was distilled from ground three of the Notice of Appeal. That some paragraphs of the petition pleaded facts that had nothing to do with criminal allegations. Citing Section 138(b)(1b) and (c) of the Electoral Act, 2010 as amended the appellant argued that allegation of crime and of non-compliance with the provisions of the Act supra constituted mere surplusage and accordingly, were severable. Having struck out paragraphs 28, 29, 31-33, 39 and 41 of the petition the Tribunal mis4pplied the law when it relied on the address of the learned Senior, Counsel to the 1st Respondent to support its conclusion that the said petition contained criminal allegations. That no iota of evidence was led on the issue by any of the respondents. The appellant urged that issue three be resolved in his favour.
The learned Senior Advocate of Nigeria replied that the appellant had the right to abandon any aspect of the pleading at any time, citing Ezemba vs Ibeneme (2004) 14 NWLR (Pt.89 4) 617 at 659 per Onu, JSC.
Learned Counsel to the 4th Respondent argued that the Tribunal acted rightly in striking out those paragraphs in the petition which contained criminal allegations against persons who were not parties to the petition. That an Election Tribunal had power to severe criminal allegations from those of a civil nature. The relevant consideration was, whether upon severance the petition was sustainable on the other grounds. Secondly, whether the appellant in the presentation of evidence in support of his petition took any steps to severe the criminal allegations made in the petition from other allegations?
Learned, Counsel argued that the foundation of the petition was the criminal allegations made in paragraphs 10, 14-17, 23, 26, 28-41 of the petition. Once these allegations, were withdrawn, the petition collapsed. Secondly, no attempt was made at the Tribunal to prove these criminal allegations. The issue of severance was only, raised in the address presented by the appellant at the Tribunal on 12-10-2011. Counsel urged this Court to resolve this issue against the appellant.
The circumstances that may arise which necessitate the severance of pleadings were stated by Bello, JSC (as he then was) in Nwobodo vs. Onoh supra at page 16 as follows:-
“However, where a plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime it cannot then be said that the alleged crime was a fact in issue or directly in issue: Nwankwere vs Adewunmi (1967) NMLR 45 at 48.”
Denning, L. J., stated the rule aptly in Arab Bank vs. Ross (1952) Q.B.D. 216 at 229 in these terms:
“Under the rules of pleading, as I have always understood them, a pleader who had pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited ones. ”
The scope of Section 137(1) of the Evidence Act may be summarized: Where in an election petition the petitioner makes an allegation of a crime against a respondent and he makes the Commission of the crime as the basis of his petition, the sub-section imposes strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his petition fails. However, the provisions of Section 737(1) are subject to the principle of severance of pleadings which may be stated thus: If in any civil proceeding the averments alleging a crime are severable and if after such, severance there still remain in the pleadings of the plaintiff or the petitioner sufficient, averments devoid of the criminal imputation against any party to the proceeding and on which the plaintiff or the petitioner con succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case within the balance of probability.
I may emphasize that the application of Section 137(1) of the Evidence Act to a civil proceeding depends on the contents of the pleading, in a particular case. Each case should be decided on its pleadings.”
I have examined the proceedings conducted at the Tribunal. The appellant did not apply to the Tribunal at the stage of hearing that any paragraphs of the petition should be severed. The application to strike out those paragraphs the contained criminal allegations in the petition was contained at page 16 of the appellant’s written address submitted at the close of hearing. These were paragraphs 28-33, 39 and 41. The effect of this application was that the Tribunal struck out these paragraphs on the grounds they contained criminal allegations against various persons. The question is whether upon severance of these paragraphs the appellant proved the petition?
In my humble opinion, after the Tribunal severed these paragraphs of the petition, there was no iota of evidence left to prove the grounds upon which the petition was anchored. There was no evidence to prove the authentic and falsified results or to show that the appellant scored the highest number of lawful votes cast in parts of the constituency, namely, Calabar South, Akpabuyo and Bakassi Local Government Areas. The polling units where elections were unlawfully conducted and those where they were not proved by the appellant at the Tribunal. The appellant failed to prove his petition. I resolve issue three against the appellant.
ISSUE FOUR:
The appellant has posed the question whether the election of 9th April, 2011 was held in Calabar South, Akpabuyo and Bakassi Federal Constituency in lawfully delineated territory. Counsel argued that the entire Bakassi Local Government was ceded to the Republic of Cameroon on 8th August, 2008 by the International Court of Justice at the Hague. The appellant further argued that this was given judicial sanction in the unreported judgment of the Federal High Court in Hon. (Barr.) Joe Etene vs Independent National Electoral Commission (INEC) & Ors in Suit No.FHCICNCS/41/2011. The Court also affirmed Akpabuyo and Bakassi Local Government Area Boundary (Adjustment) Law of 2007 which excised three wards of Akpabuyo Local Government Area, namely, Ikang North, Ikang Central and Ikang South and renamed Bakassi Local Government. The 3rd Respondent used the Law to conduct elections in the defunct Bakassi Local Government Area whose geographical territory is now in the Republic of Cameroon and Akpabuyo Local Government Area in the geographical territory of Akpabuyo Local Government Area thereby unlawfully altering the Calabar South, Akpabuyo and Bakassi Federal Constituency. This contravened the provisions of Section 71-74 of the Constitution of the Federal Republic of Nigeria, 1999. That there was no formal alteration of Akpabuyo Local Government Area, by excising three wards, thereof, namely, Ikang North, Ikang Central, and, Ikang South by the 3rd Respondent. Neither did the exercise receive the approval of each House of Assembly, in the Federation including the National Assembly.
The appellant argued that elections into any constituency must be conducted in a lawfully delineated geographical location or territory. The appellant urged this court to hold that the votes in the unlawfully delineated territories be declared null and void. That only the votes in Calabar South be upheld as valid. If the lawful votes are deducted, from the unlawful the appellant to argued that he would be found to have won the elections. The appellant argued that issue four be resolved in his favour.
The learned Senior Advocate of Nigeria responded on behalf of the 1st Respondent by referring to the judgment of the Federal High Court, Calabar and Law No.7 of Cross River State House of Assembly, 2007. That the Cross River State House of Assembly had recognized the judgment of the International Court of Justice at the Hague by virtue of Section 8(4) of the 1999, Federal Constitution of Nigeria &s authority to excise Ikang North, Central, and South thereby altering, the boundaries of the, Local Governments. The Federal High Court, Calabar had also determined the validity of the Law as passed by the House of Assembly and elections held in the said areas. The learned Senior Advocate of Nigeria, argued that Section 8(4) of the Constitution dealt with the power of the states to adjust, boundaries of Local Government Areas within each state of the Federation which is not a matter on the Exclusive Legislative List or made subject to ratification by the National, Assembly. The learned Senior Counsel urged that this issue should be resolved against the appellant.
Learned Counsel to the 4th Respondent submitted that it was not open to the Tribunal to entertain the question of the existence or otherwise of Bakassi Local Government Area. Moreover, the appellant admitted in paragraph 1 of the petition that he contested election into the House of Representative in the constituency. The same appellant admitted in various paragraphs of the petition the existence of Bakassi Local Government Area including the written address filed on 28-04-2011. Learned Counsel urged this Court to resolve this issue against the appellant.
I have already alluded to Section 285(1)(a)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 which confers on the Tribunal to the exclusion of any Court or tribunal the original jurisdiction to hear and determine petitions on specific issues or matters. The National Assembly Election Tribunal is never conferred with jurisdiction to hear and determine questions involving the validity or invalidity of boundary adjustment of Local Government Areas in any stale of the Federation of Nigeria. Moreover, that issue was settled by the Federal High Court sitting in Calabar in Suit No.FHC/CA/CS/41/2011 viz Hon. (Barr.) Joe Etene vs INEC & Anor on 8th July, 2011 based on Law No.7 of 2007 enacted by the Cross River Stale House of Assembly.
The legislature has also provided the grounds for questioning an election under the Electoral Act No.6 of 2011 as amended thus:
“138(1) An election may be questioned on any of the following grounds, that is to say:-
(a) that a person whose election is questioned was, at the time of the election not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself a ground for, questioning the election. ”
Issue four raised by the appellant for determination by this Court is not one of the statutory grounds for questioning an election. Moreover, the appellant cannot ”reprobate and approbate having presented himself as a candidate on the platform of the Action Congress of Nigeria and contested the elections of 9th April, 2011. The appellant cannot make a summersault and argue that he participated in an illegality. No one is permitted’ to benefit from an illegality or his wrongdoing. See The Capella (1761-1773) All E. R. Reprint 433; Brosette Manufacturing Nig. Ltd vs M/S Ola Ilemobola Ltd (2007), All FWLR (Pt.379) 1346 and Solanke vs. Abed (1962) I All NLR 220.
Section 8(1)(a)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 empowers the National Assembly upon the fulfillment of certain conditions to create new states while Section 8(2)(a) and (b)(i) and (ii) of the Constitution supra confers on the same Assembly the power to enact an Act for the purpose of boundary adjustment of any existing State in the Federation. Section 8(3)(a)-(d) of the Constitution empowers each House of Assembly in a State to enact a Bill for the purpose of creating a new local government area upon fulfillment of certain conditions. Under Section 8(4) of the Constitution a House of Assembly of any state is conferred with power to enact a Bill for the purpose of boundary adjustment of any existing local government area. The power to determine the location or names and headquarters of a newly created state or local government however rests on the National Assembly under Section 8(5) of the Constitution. But after the creation of more local government councils the House of Assembly shall make adequate returns to the National Assembly for the of exercising the powers conferred upon her under Section 8(5) of the Constitution supra.
In my humble view the adjustment of the boundaries of the three local governments by the Cross River State House of Assembly is covered by the provisions of Section 8(4)(a)(i)-(ii), (b), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999. The holding of election in these areas was valid or lawful contrary to the argument of the appellant.
On the whole this appeal lacks merit and is dismissed.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the draft of the lead judgment delivered by my learned brother, Joseph Tine Tur, JCA in this appeal. His Lordship has comprehensively considered and decided the issues submitted for determination in accordance with the position of the law on them. His views are the same with mine and so I entirely agree with the resolutions of all the issues as contained in the lead judgment.
For the reasons set out the lead judgment which I adopt, the appeal fails and is dismissed by me too.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph T. Tur, J.C.A.
I agree with his reasoning and final conclusions contained therein. The appeal has no merit and is thereby dismissed. I abide by all the consequential orders contained therein including that on cost.
Appearances
Williams BallantyneFor Appellant
AND
Joe Agi, SAN; M. Shaibu & U. Omaji (Miss) – for 1st Respondent.
E. O. E. Ekong; I. M. Anama – for 4th Respondent.For Respondent
