OLUSOLA ADEYEYE V. SIMEON ODUOYE & ORS
(2010)LCN/3942(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/I/EPT/NA/67/08
RATIO
RULES OF INTERPRETATION OF STATUTE: HOW THE WORDS OF A STATUTE ARE TO BE INTERPRETED WHERE THE WORDS ARE CLEAR AND UNAMBIGUOUS
It is settled law that where the words of a statute are clear and unambiguous, the Court would give them their ordinary meaning and would not have recourse to any aid in interpreting same. See A. G. ONDO STATE VS. A. G. EKITI STATE (2001) 17 N.W.L.R Part 743 page 706 at 756 paragraphs C-D where Kutigi J.S.C as he then was had this to say: “It is certainly a cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect must be given to them without resorting to any aid internal or external. It is the duty of the Court to interprete the words of the law makers as used…” PER MODUPE FASANMI, J.C.A.
ELECTORAL MATTERS: WHETHER IN COMPUTATION OF TIME IN ELECTION MATTERS, THE ACTUAL DATE ON WHICH THE DECISION WAS MADE WOULD BE INCLUSIVE
The periods for the giving of Notice of Appeal or Notice of application for leave to appeal are: (a) In an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision See the case of ADEBISI ADEGBUYI & 1 OTHER VS. HON RAMONI OLALEKAN MUSTAPHA and 1233 others in CA/I/EPT/OG/NASEN/99/08 delivered on the 21st of April 2010 by his Lordship Alagoa JCA. In effect what it means on the computation of time in election matters is that where recourse must be had to the provisions of the Court of Appeal Act, in reckoning the period of 14 days or three months from the date of the decision, the actual date on which the decision was made would be inclusive. PER MODUPE FASANMI, J.C.A.
DOCUMENTARY EVIDENCE: WHETHER A PARTY RELYING ON DOCUMENTS IN PROOF OF HIS CASE MUST SPECIFICALLY RELATE EACH OF SUCH DOCUMENTS TO THAT PART OF HIS CASE IN RESPECT OF WHICH THE DOCUMENT IS BEING TENDERED
A party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. Tendering exhibits alone without, more is not sufficient for the Court to ascribe evidential value to the exhibits. PER MODUPE FASANMI, J.C.A.
NON-COMPLIANCE: WHETHER A PETITIONER COMPLAINING OF NON-COMPLIANCE HAS A DUTY TO SHOW HOW THE NON-COMPLIANCE WITH THE RULES SUBSTANTIALLY AFFECTED THE RESULTS OF THE ELECTION
In the case of ADEBIYI VS. BABALOLA (1993) 1 N.W.L.R Part 267 page 1 at page 16 paragraphs D-E, Oguntade J.C.A (as he then was) had this to say: “…In the Tribunal findings, there was non-compliance with some aspects of the decree. But did such non-compliance affect substantially the result of the election? To be able to come to the conclusion that it did, the Petitioner ought to have shown that if the non-compliance had not occurred, he might have won the election…” See also Ajadi vs. Ajibola (2004) 16 N.W.L.R Part 898 page 91 at 170H-171C where Adekeye J.C.A (as he then was) had this to say: “It is clear from the provisions of Section 35 (1) (now 136) of the Electoral Act (2002) that proof of a breach of any provisions of the Electoral Act will per se not lead to the nullification of an election. To make a case for nullification the Petitioner needs to go further and prove that the breach of the provision of the Act resulted in the election not been conducted substantially in accordance with the principle of the Act and/ or the result of the election. PER MODUPE FASANMI, J.C.A.
JUSTICES:
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OLUSOLA ADEYEYE – Appellant(s)
AND
SIMEON ODUOYE & 711 OTHERS – Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Governorship and Legislative Houses Election Tribunal sitting at Osogbo, Osun State delivered on the 23rd of May 2008. The Tribunal dismissed the petition of the Appellant challenging the return of the 1st Respondent as the winner of Osun Central Senatorial District.
The Appellant contested under the platform of the Action Congress while the 1st Respondent contested under the platform of the People’s Democratic Party.
The Appellant by a petition filed on the 21st of May 2007 challenged the declaration and return of the 1st Respondent Simeon Oduoye as the winner of Osun Central Senatorial District conducted by the Independent National Electoral Commission on the ground of electoral malpractices, irregularities and noncompliance with the Electoral Act 2006.
Appellant contended that the National Assembly election for Osun Central Senatorial District held on 21st April 2007 is invalid by reason of non-compliance with the provisions of the Electoral Act 2006 and that the said election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially “affected the validity of the said elections and that none of the candidates in the said election can be validly returned as having validly won the said election. Based on the above, Appellant urged the National Assembly Elections Tribunal to nullify the elections for Osun Central Senatorial District held on 21st April 2007 and urged that the 3rd Respondent be directed to conduct fresh elections for the Osun Central Senatorial District.
In proof of the case Appellant called a total number of 39 witnesses and also tendered exhibits (mainly electoral materials and two reports of the Court ordered inspection of electoral materials all of which were marked exhibits 1-128). Sequel to the issuance of a subpoena on the 3rd Respondent at the instance of the Appellant, materials used during the election were admitted in evidence in the course of the petition.
1st & 2nd Respondents initially called 20 witnesses and with the leave of Court called an additional witness who tendered a document which was marked “rejected”. The 3rd to 710th and 711th-712th Respondents did not call any witness. At the end of the trial, the Tribunal upheld the election of the 1st Respondent. Appellant being dissatisfied with the judgment filed nine grounds of appeal in his notice of appeal dated the 12th of June 2008 but filed on the 13th of June 2008.
In compliance with the Rules of this Court, Appellant filed her brief of argument on the 4th of August, 2008; Appellant’s reply to 1st & 2nd Respondents amended brief of argument was filed on 12/10/09. She also filed the Cross-Respondent’s reply to the Cross-Appellants brief of argument on the 3rd of August, 2008. Learned Counsel adopts and relies on all the said briefs. He urged the Court to, allow the appeal and dismiss the cross-appeal.
Learned Counsel for the 1st & 2nd Respondents filed the amended 1st & 2nd Respondents and Cross-Appellants brief of argument on the 6th of October, 2008. They also filed a notice of preliminary objection on the 11th of March 2009. The Cross-Appellant’s reply to the Cross-Respondent’s brief of argument was filed on 13th November, 2009. In adopting and relying on these briefs, Learned Counsel for the 1st & 2nd Respondents directed the Courts attention to the arguments in respect of the preliminary objection contained in part A of the amended brief of argument on pages (i) -a (vi). 3rd – 710th Respondents did not file any brief. The 711th -712th Respondents brief of argument is dated 17/11/08 and filed the same day but deemed filed on 25/5/09. The crux of the 1st & 2nd Respondents objection is that the appeal is incompetent and should be struck out having been filed outside the time stipulated by law. The grounds of the objection are as follows:
(i) The judgment appealed against was delivered on 23rd May 2008.
(ii) The Notice of appeal was filed on 13th June 2008
(iii) The Appellant had 21 days from the date of judgment to file the notice of appeal in accordance with the provisions of Section 149 of the Electoral Act and Practice Direction No. 2 of 2007 issued by the President Court of Appeal
(iv) The appeal was filed beyond the time stipulated by the Act.
Learned Counsel reproduced Section 149 subsection 1 of the Electoral Act 2006 and posited that the purport of the quoted statute is that a notice of appeal against the decision of the Tribunal shall be filed within 21 days from the date of the decision. Learned Counsel argued further that the provisions of Section 149 (1) of the Electoral Act 2006 and paragraph 1 (1) of Practice Direction No. 2 of 2007 should be interpreted based on their ordinary meaning without using any internal or external aid since they are clear and unambiguous. Learned Counsel referred to the case of A. G, ONDO STATE VS. A. G. EKITI STATE (2001) 17 N.W.L.R Part 743 page 706 at 756 paras C-D where Kutigi J.S.C as he then was had this to say:
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect must be given to them without resorting to any aid internal or external. It is the duty of the Court to interpret the words of the law makers as used…”
In this regard, Learned Counsel for the 1st & 2nd Respondents submitted that the words “within 21 days from the date of the decision” in the deviant Section means exactly that i.e the 21 days include the date of the decision.
Learned Counsel cited the cases of ALATAHA VS. ASIN (1999) 5 N.W.L.R Part 601 at 32; OGBEBOR VS. DANJUMA (2003) 15 N.W.L.R Part 843 at 403
Learned Counsel for the 1st & 2nd Respondents submitted that the 21 days within which an appeal should be filed from the date of the decision includes the date of the decision. In the present circumstance, since the decision of the Election tribunal was delivered on 23rd Way, 2008 and the 21 days period allowed from that date expired on 12th June 2008, the notice of appeal filed on 13th June 2008, was filed out of time. It is statute barred. She urged the Court to so hold.
Learned Counsel for the 1st & 2nd Respondents submitted further that if the Court holds that the appeal is statute barred, then it robs the Court of its jurisdiction to entertain the appeal and it should be struck out. She referred to the case of OWOH VS. ASUK (2008) 16 N.W.L.R Part 112 at 131 paras A-C where Mohammed J.S.C had this to say:
“It cannot be over-emphasized that failure to comply with the statutory requirements such as filing of an appeal within the specific period prescribed by law from the date of decision or within such further extended period as may be granted by an order of Court deprives an appellate Court of its jurisdiction to entertain or hear the appeal … Such irregularity cannot be regarded as a mere technicality or misconception but constitutes a fundamental defect which renders the Appellate Court in respect of such purported appeal incompetent and consequently null and void ”
She urged the Court to strike out the appeal and cited the case of MUDASIRU OYETUNDE HUSSAIN VS. ISIAKA ADETUNJI ADELEKE & OTHERS (unreported) CA/I/EPT/NA/69/08 where the appeal was dismissed for being incompetent for being filed after 21 days. Learned Counsel urged the Court to allow the preliminary objection and dismiss the appeal having been filed out of time.
In reply learned Counsel for the Appellant submitted that the arguments of the 1st & 2nd Respondents Counsel that the date the judgment of the trial Tribunal was delivered which ought to have been excluded in the computation is misconceived. He submitted that the computation should start on the day following the day of the judgment of the Tribunal appealed against and the 13th of June 2008 when the notice of appeal was filed falls within the 21 days stipulated for the filing of same by the Practice Directions. Thus the notice of appeal filed by the Appellant was properly filed within the time stipulated under and by virtue of paragraph 1 of the practice Directions No 2 of 2007. From the provisions of the Interpretation Act, the law guiding the issue of computation of time that the date on which an event occurs is excluded in computing the time within which any particular act must be done. He submitted that the cases of ALATAHA VS ASIN (1999) 5 N.W.L.R Part 601 at 32: OGBEBOR VS. DANJUMA (2003) 15 N.W.L.R. Part 843 at 403 and KUMAILA VS. SHERIFF (unreported) CA/J/EPT/GOV/244 relied on by the 1st & 2nd Respondents are in applicable.
He contended further that in the absence of any specific provision in the Electoral Act to appeals not arising from Section 149, resort has to be made to the provisions of Section 24 (2) of the Court of Appeal Act and the rules made pursuant thereto. He referred to the decisions of this Court in the cases of PRINCE A. SIJUWADE VS. ROPO OYEWOLE & ORS (unreoorted) in suit no. CA/I/HA/78/07 and ALABI A. KAZEEM VS. OYEJIDE GBADEBO KOLA & ORS. (unreported) in suit no. CA/I/EPT/HA/72/08 and recent decision of this Court in Ibadan Division delivered on 21/4/2010 in CA/I/EPT/NASEN/99/08 between ADEBISI ADEGBUYI VS. HON. RAMANI MUSTAPHA & ORS. Learned Counsel for the Appellants urged the Court to dismiss the preliminary objection and hold that the appeal is competent.
It is settled law that where the words of a statute are clear and unambiguous, the Court would give them their ordinary meaning and would not have recourse to any aid in interpreting same. See A. G. ONDO STATE VS. A. G. EKITI STATE (2001) 17 N.W.L.R Part 743 page 706 at 756 paragraphs C-D where Kutigi J.S.C as he then was had this to say:
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect must be given to them without resorting to any aid internal or external. It is the duty of the Court to interprete the words of the law makers as used…” Underlining is mine for emphasis.
The 1st & 2nd Respondents have relied on the provisions of paragraph I (1) of the Practice Direction No.2 of 2007 and Section 149 (1) of the Electoral Act 2006. What is the applicability of Section 149 (1) of the Electoral Act 2006 to the present appeal? The preamble to the provisions of paragraph 1 (1) of the Practice Direction No. 2 of 2007 states that the Practice Direction is given by the President of the Court of Appeal “for the purpose of appeals coming to the Court of Appeal under Section 149 of the Electoral Act 2006”. This Practice Direction shall be strictly observed by all parties. It follows that an appeal that does not arise from determination that a person returned as elected was not validly ejected would not be covered by the provision of paragraph 1(1) of the Practice Direction No. 2 of 2007.
The Supreme Court in the case of BUHARI VS. OBASANJO (2005) 13 N.W.L.R Part 941 page 1 at 179 paras B-H in construing Section 138 of the Electoral Act 2002 which is in pari materia with the provision of Section 149 of the Electoral Act 2006, recognized the fact that the said Section does not provide for a situation where the challenge to the return of the elected candidate was unsuccessful.
Uwais GN (as he then was) had interpreted Section 138 of the Electoral Act 2002 which is in pari materia with Section 149 of the Electoral Act 2006 thus:
“It could be seen that Section 138 of the Act is concerned with a situation where the decision of a Tribunal or Court has been given against a candidate who has been returned as elected declaring that such a candidate has not been validly elected. With respect, the opposite is the case in this appeal because the Court of Appeal had declared the 1st & 2nd Respondents/Cross-Appellants validly elected. Therefore the provision of the Section has no application here.”
In the instant appeal, the Appellant was not returned as the winner by the Independent National Electoral Commission and his complaint at the Election Petition Tribunal against the return of the 1st Respondent was dismissed. In the circumstance the decision appealed against certainly does not come within the contemplation of Section 149 of the Electoral Act. See also the case of I.N.E.C. VS. ACTION CONGRESS (2009) 2 N.W.L.R. Part 1126 page 524 per Salami J.C.A at page 611 paras A-B stated as follows:
“The provisions of Section 149 (1) of the Electoral Act No 2 of 2006 is designed to protect the election and return of the party whose election had been declared invalid and not for a meddler. It therefore seems to me that such a party is the sole beneficiary of that subsection provided he appeals within 21 days of the delivery of the Judgment. By the same portent he is solely entitled to appeal the breach of the provisions of the Section in question. In the instant appeal, it is the sixth Respondent who could legitimately or competently raise a finger against the order in question.”
I am bound by these decisions by the doctrine of stare decisis. See also the cases of SIJUWADE VS OYEWOLE Appeal No. CA/I/EPT/HA/78/08 and KAZEEM VS. KOLA Appeal No. CA/I/EPT/HA/72/08 delivered on the 25th of March 2009 and ADEGBUYI & 1 OTHER VS. MUSTAPHA & 1233 OTHERS CA/I/EPT/NASEN/99/08 delivered on 21st April 2010 by Alagoa J.C.A of this division.
In the case of HUSSAIN VS. ADELEKE CA/I/EPT/NA/69/08 delivered on 17/12/09 cited by learned Counsel for the 1st & 2nd Respondents Counsel, the specific nature of the matter provided for in Section 149 (1) of the Act was not raised in their objection for consideration. The preamble to the Practice Direction was also not considered. This is where the decision in BUHARI VS. OBASANJO (Supra) becomes applicable. The case of HUSSAIN VS. ADELEKE cited by the 1st & 2nd Respondents Counsel is therefore not applicable in the present case.
However, the applicability of Section 149 (1) to appeals arising from a determination that a returned candidate was not validly elected does not affect the settled position of this Court on the computation of time in election matters. Time begins to run from the date the judgment is delivered and the appeal must be filed within 21 days.
The Supreme Court in BUHARI VS. OBASANJO (Supra) held that pursuant to paragraph 51 of the First Schedule to the Electoral Act recourse must be had to Section 27(2) of the Supreme Court Act, which provided for three months within which to appeal against a final decision. By virtue of Section 51 of the 1st Schedule to the Electoral Act 2006, recourse must be had to the practice and procedure relating to appeals in the Court of Appeal regards being had to the need for urgency in electoral matters in such cases. This is provided for under Section 24 (2) (a) of the Court of Appeal Act 2004 which provides that:
The periods for the giving of Notice of Appeal or Notice of application for leave to appeal are:
(a) In an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision See the case of ADEBISI ADEGBUYI & 1 OTHER VS. HON RAMONI OLALEKAN MUSTAPHA and 1233 others in CA/I/EPT/OG/NASEN/99/08 delivered on the 21st of April 2010 by his Lordship Alagoa JCA.
In effect what it means on the computation of time in election matters is that where recourse must be had to the provisions of the Court of Appeal Act, in reckoning the period of 14 days or three months from the date of the decision, the actual date on which the decision was made would be inclusive. The decision appealed against therefore does not come within the purview of Section 149 of the Electoral Act. By virtue of Section 24 (2)(a) of the Court of Appeal Act 2004, the Appellant had three months from the 23rd of May 2008 within which to file her notice of appeal. The notice of appeal filed on the 13th of June 2008 is therefore within the three months period allowed to file. The appeal is therefore competent. The objection lacks merit. It is overruled and accordingly struck out.
The Court will now go into the merit of the issues raised in the substantive appeal, the responses thereto by the different sets of Respondents and the Cross-appeal. Appellant filed nine grounds of appeal in his notice of appeal dated the 12th day of June 2008 and distilled five issues for determination thus:
(1) Given the state of the pleadings, the nature of the allegations made in the petition and placing the evidence proffered by both the Appellant and the Respondents side by side, whether the Tribunal was right in holding that there was no compelling evidence before it that the electoral breaches complained of by the Appellant are substantial to justify vitiating the election in question after the Tribunal found and accepted:
(i) That the Petitioner had discharged the burden of proof placed on him and has established on the balance of probabilities the existence of widespread irregularities and non-compliance with the mandatory provisions of the Electoral Act 2006
(ii) That the said election was marred by substantial electoral malpractices and that the evidence of violence, voters intimidation, hijacking, illicit thump printing, ballot box stuffing is over whelming and beyond reasonable doubt, conjecture, proposition and presumption
(iii) That the evidence of the Appellants witnesses are credible, comprehensive and corroborated by documents
(2) Considering the totality of evidence both oral and documentary, placed before the Tribunal, and the findings thereon, vis-a-vis the state of the pleadings, whether the Tribunal was right to have applied the principle in Buhari Vs. Obasanjo (2003) 17 N.W.L.R Part 850 page 587 to dismiss the petition of the Appellant
(3) Based on the avalanche of exhibits tendered and admitted by the Tribunal and the oral evidence led before the lower tribunal, whether the Tribunal was not in grave error, when it was silent on the issue of multiple signatures on the reverse of ballot papers vis-a-vis form EC8A(1) series used during the Osun Central Senatorial Elections and refused to pronounce on the issue of over-voting and cancel the said election on the strength of SERIKI VS. ARE (1999) 3 N.W.L.R Part 595 page 469 at 480 paras E & A respectively
(4) In view of the pleadings of the Appellant, the oral testimonies of his witnesses, especially P.W37-P.W39 who gave copious evidence in respect of Odo Otin, Boripe, Ifelodun, Ifedayo, Boluwaduro, Ila, Orolu and Irepodun: and exhibits tendered to cover these 8 (eight) local government areas especially exhibits 125 (a)-(c) and 128, whether the Tribunal was right in holding that the Appellant led evidence in respect of only five Local Government areas
(5) Whether the Tribunal was right in not pronouncing on the failure of the 3rdy – 710th Respondents to produce vital documents needed by the Appellant in proof of his petition and thereby refused to invoke the provision of Section 149 (d) of the Evidence Act against the said Respondents.
1st & 2nd Respondents in their amended brief filed on 6th October, 2009 distilled a sole issue for determination thus:
Whether the Appellant established that the non-compliance with the Electoral Act affected substantially the result of the election.
The 711th – 712th Respondents in their brief filed on 17/11/08 but deemed filed and served on 25/5/09 also distilled a sole issue for determination thus:
Whether the Petitioner has established widespread incidence of electoral malpractice which include, violence, thuggery, irregularities, multiple thumb printing, ballot box hijacking and stuffing against Law Enforcement Agencies beyond reasonable doubt to vitiate the totality of the result of the election.
On a careful perusal of the issues raised by the Appellant and the sets of Respondents, I am of the view that issue 1 formulated by the Appellant comprehensively covers his remaining issues but couched differently. Issue one of the Appellant and the sole issue formulated by the 1st & 2nd Respondents also border on the same issue. The 711th – 712th Respondents sole issue is also subsumed in the Appellants issue one. The appeal will be determined on issue one formulated by the Appellant since it covers the Respondents issues in the circumstance.
Issue one
(1) Given the state of the pleadings, the nature of the allegations made in the petition and placing the evidence proffered by both the Appellant and the Respondents side by side, whether the Tribunal was right in holding that there was no compelling evidence before it that the electoral breaches complained of by the Appellant are substantial to justify vitiating the election in question after the Tribunal found and accepted:
(i) That the Petitioner has discharged the burden of proof placed on him, and has established on the balance of probabilities the existence of widespread irregularities and non compliance with the mandatory provisions of the Electoral Act 2006
(ii) That the said election was marred by substantial electoral malpractice and that the evidence of violence, voters intimidation, hijacking, illicit thumb printing, ballot box stuffing is overwhelming and beyond reasonable doubt, conjecture, proposition and presumption, and
(iii) That the evidence of the Appellant’s witnesses are credible, comprehensive and corroborated by documents.
Learned Counsel for the Appellant submitted that the lower Tribunal found and accepted that the Appellant discharged the burden of proof and established on the balance of probabilities the existence of widespread irregularities, electoral malpractices, including violence and non compliance with the mandatory provisions of the Electoral Act 2006, beyond reasonable doubt in the conduct of the elections held on 21/4/07 in the five local government areas of Orolu, Ila, Boluwaduro, Irepodun and Ifedayo all in the Osun Central Senatorial District. He posited further that the Court must reach a conclusion which follows logically from the facts as found. He referred to the case of N.B.C VS. OKWEJIMINOR (1998) 8 N.W.L.R Part 561 page 295 at 306 baras B-G per Rowland J.C.A which states:
“A trial court must in its judgment show a clear resolution of all the issues that are for decision in the case and end up with a verdict which follows logically from the facts as found”
According to learned Counsel, if the evidence of the Appellant’s witnesses with regard to electoral malpractices, violence, non-compliance with the relevant provisions of the Electoral Act 2006, and widespread irregularities with regard to the Osun central senatorial election held on 21st April 2007 which saw the return of the 1st Respondent as the winner of the said election by the 3rd – 710th Respondents is “credible, believable, cogent and overwhelming”, the irregularities widespread to the point of being accepted by the lower Tribunal, then it follows naturally that the complaint of the Appellant against the election in question is substantial. The lower Tribunal found that the Appellant led evidence with regard to 5 local government areas and once the lower Tribunal found that there was no substantial compliance in respect of the elections in the five local government areas the votes cast in those areas ought to have been cancelled by the lower Tribunal. Learned Counsel referred to the cases of NA- GAMBO VS. NEC (19931 1 N.W.L.R Part 267 at 94: IZUOGU VS. UDENWA (1999) 6 N.W.L.R Part 608 at page 582 and AJADI VS. AJIBOLA (2004) 16 N.W.L.R Part 898 page 91 at 171 paras B-C per Adekeye J.C.A (as he then was) stated:
“It was held that the question of the validity of an election objected to on ground of irregularity or noncompliance is one of degree. Once an election Tribunal finds that there is non-compliance with the law in respect of election in certain areas, votes cast in such areas are to be cancelled”
Learned Counsel for the Appellant submitted further that the lower Tribunal failed to look at the total number of votes cast in the remaining minority three local governments and balance same with the total number of votes cast in the majority 5 local governments. He submitted that the Appellant won overwhelmingly in Osogbo and Olorunda Local Government areas of Osun Central Senatorial District. He submitted that the 1st Respondent did not win the majority of the lawful votes cast in the election to majority of Odo-Otin, Irepodun, Orolu, Ila, Boluwaduro, Ifedayo, Ifelodun, Boripe and Osogbo local government areas which make up Osun Central Senatorial District. He did not meet the requirements as envisaged under the Electoral Act 2006 to be declared elected as a Senator of Osun Central Senatorial District. His election ought to have been nullified by the lower Tribunal.
Learned Counsel for the Appellant went further to state that the lower Tribunal erred to have applied the principle in BUHARI VS. OBASANJO (2005) 13 N.W.L.R Part 941 page 1 to dismiss the petition of the Appellant. The principle in BUHARI VS. OBASANJO (Supra) will apply only where there is a mere failure to comply with minor provisions of the Electoral Act which have no effect or substantially affect the outcome of the election.
The evidence led by the Appellant’s witnesses in respect of the eight local governments is contained on pages 1002-1017 of the record. The level of substantial non-compliance by the 3rd-710th Respondents and the corrupt practices perpetrated during the April 21 Senatorial Election in Osun Central Senatorial District were demonstrated in exhibit 125 a-c, exhibit 128 and the oral evidence of the Petitioner’s witnesses and Respondents witnesses above. No evidence was given by the 3rd – 710th Respondents in rebuttal of all the allegations against them. He submitted further that the 3rd – 710th Respondents are deemed to have admitted all the allegations levelled against them. He urged the Court to resolve the evidence of the Appellant and his witnesses in respect of corrupt practices and substantial non-compliance with the Electoral Act in the Appellants favour. He referred to the cases of BADAWN VS. ADA (1999) 3 N.W.L.R Part 594 page 303:
AJADI VS. AJIBOLA supra at page 164 para C-D and RIMI VS. SUNDAY (1999) 8 N.W.L.R Part 613 page 92 at 105.
Learned Counsel for the Appellant urged the Court to hold that the Appellant led evidence in respect of eight local government areas at the lower Tribunal and that the noncompliance with the relevant provisions of the Electoral Act 2006 during the 21st April 2007 Osun Central Senatorial District election substantially affected the result of the election and the said election ought to be cancelled.
Learned Counsel for the 1st & 2nd Respondents submitted that the Appellant under Section 146 (1) of the Electoral Act 2006, is obliged to allege and establish not only that particular Sections of the Electoral Act were not complied with, but also that the non-compliance adversely affected the outcome of the election. She argued that even though the Tribunal found that there was non-compliance, the Appellant failed to plead and lead evidence on the effect or consequence of the said non compliance to the election. The two conditions stipulated in Section 146 (1) of the Electoral Act are:
(a) Substantial non-compliance
(b) Which must have affected the result of the election
Learned Counsel cited the cases of AJADI VS. AJIBOLA (2004) 16 N.W.L.R Part 898 at page 91 at pages 170H -171C per Adekeye J.C.A (as she then was) Adebivi vs. Babalola (1993) 1 N.W.L.R Part 267 at page 1. Learned Counsel submitted that since the Appellant has failed to plead and in consequence established the effect of the alleged noncompliance, he is not entitled to an order of nullification of the election. The case of NA-GAMBO VS. NEC (1993) 1 N.W.L.R Part 267 page 94 particularly at page 106 paras E-H per Niki Tobi J.C.A (as he then was) was referred to Learned Counsel for the 1st & 2nd Respondents further submitted that the Appellant ought to have condescended to particulars and not relied on bare and general assertions, both in the pleading and the evidence. She submitted further that exhibits 36-128 relied upon by the Appellant were tendered from the bar. The Appellant did not lead oral evidence on the purport of these exhibits and more importantly the Respondents did not cross-examine on them. Learned Counsel querried the evidential value of such exhibits. The fact that the Appellant tendered a large volume of documents as exhibits without more does not mean that the tribunal must accept them unreservedly. The Tribunal would be expected to weigh them before ascribing value to them. She submitted that in this case, no one gave evidence in respect of any of the exhibits to at least explain which of them was signed, those which were not signed, stamped etc. She argued that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The rationale for this is that it would amount to a breach of the fair hearing principle for the Court to do in the recess of its chambers what a party has not himself done in advancement of his case in the open court. Learned Counsel referred to the cases of JALINGO VS. NYAME (1992) 3 N.W.L.R Part 231 at 538-ALAO VS. AKANO (2005) 11 N.W.L.R Part 935 page 160 at 178 paras D-E: ONIBUDO VS. AKIBU (1982) 7 S.C. at 60 H.N.B LTD VS. GIFTS UNIQUE NIG. LTD (2004) 15 N.W.L.R Part 896 page 343 at 423 paras B-D and HARUNA VS. MODIBBO (2004) 16 N.W.L.R Part 900 page 467 at 552 paragraphs F-G.
Learned Counsel for the 1st & 2nd Respondents contended that the Tribunal was therefore right in not according any weight to the allegations of over voting and multiple signatures since there was no evidence at all to support this. The Tribunal was not entitled to go on a voyage of discovery to proffer evidence by itself in support of the Appellant’s case. The evidence of P.W37 to P.W39 according to learned Counsel merely shows that electoral materials including forms were not properly used during the elections in the Senatorial District. The evidence is vague and leaves the Court to speculate on how the said electoral materials were used. She urged the Court to hold that evidence of P.W37-P.W39 was not credible and of no evidential value. Learned Counsel urged the Court to hold that there was no credible evidence in respect of the five local government areas of Odo-otin, Boripe, Ifelodun, Osogbo and Olorunda. Civil cases are resolved on a preponderance of evidence. Where the party which has the burden of proving its case fails to do so, the burden of rebutting same does not shift to the opponent and in that situation, the opponent cannot then be accused of abandoning its defence where it fails to lead evidence when there is nothing to disprove. Learned Counsel referred to the case of EDOSOMWAM VS. OGBEYFUN (1996) 4 N.W.L.R Part 442 page 266 at 278 para E where his Lordship Wali J.S.C had this to say:
“The law is that where a fact or facts are pleaded and no evidence was led to prove them, no onus is cast on the other party to disprove the fact or facts not established. See KATE v ENTERPRISES LTD VS. DAEWOO NIG. LTD (1985) 2 N.W.L.R Part 5 page 116″
And
Akinkunmi Vs. Sadiq (1997) 8 N.W.L.R Part 516 page 277 at 291 paras B-D per Niki Tobi J.C.A (as he then was). She stated that having failed to discharge the burden placed on the Appellant by operation of law, the Respondents have nothing to disprove. Learned Counsel urged the Court to dismiss the appeal on the ground that the Appellant failed to establish that noncompliance with the Electoral Act affected the outcome of the election in any way.
Learned Counsel for the 711th-712th Respondents submitted that the 711th-712th Respondents performed their statutory duty effectively by ensuring that all necessary security machinery was put in shape which includes the positioning of the officers of the Nigeria Police at each of the polling units during the period of voting, counting and the announcement of the election results. He posited that under our Electoral Law as in civil proceedings generally the ‘burden of proof rests squarely on the party who will fail if no evidence is adduced on either side.
He submitted that the 711th-712th Respondents did not call any witness because no allegation of misconduct or electoral malpractices was proved against them. The alleged acts of electoral malpractices bordering on thuggery, violence, disruptions of election, intimidating electoral fraud, snatching of ballot boxes and electoral materials, assault were perpetrated in the presence of Law Enforcement Agents” were not only unfounded but vague.) There was no allegation of corruption or electoral malpractices made against a particular/identified Police Officer. There is equally no relief claimed against the 711th – 712th Respondents. He cited the case of OBASANJO vs. YUSUF (2004) 9 N.W.L.R Part 877 page 144 at 185 where the Court held:
“I don’t know that unnamed, unidentified and unassigned Police and Army personnel as well as political agents and or thugs can be made y parties in the petitions”
The 711th – 712th Respondents are not necessary parties and their names ought to be struck out from the petition. Learned Counsel urged the Court to uphold the judgment of the lower Tribunal and dismiss the appeal of the Appellant as lacking in merit.
Appellant’s Counsel in reply to 1st & 2nd Respondents amended brief of argument submitted that ADEBIYI VS. BABALOLA’S case cited is not applicable because it bordered on nomination of candidate.
On the issue that Appellant failed to plead alleged non compliance, learned Counsel submitted that non-compliance was copiously pleaded in paragraphs 10, 12.1, 12.2, 12.3, 13 & 14 of the petition. Appellant never contested Osogbo & Olorunda Local Governments because they won overwhelmingly and convincingly in these local governments. Witnesses were called in respect of Odo-Otin, Boripe and Ifelodun Local Governments by PW37, PW38 and PW39. The Respondents never cross examined them on material points alleged. Learned Counsel further submitted that contrary to the assertion of 1st & 2nd Respondents that Adegboyega was Appellant’s Counsel, T. S. Adegboyega never appeared for the Appellant at the Tribunal. He only inspected the electoral materials in the presence of both the people representing Appellant and Respondent. Based on the oral application of the Counsel for the Appellant praying the Court to allow the Appellant count all the ballot papers and stamps, both Counsel to the Appellant and Respondent counted all the ballot papers and stamps. Alaka one of the Counsel for the Appellant was part of the team. At the end of the exercise, Appellant’s Counsel came up with a report of his observations which was signed by Alaka while the Respondent’s Counsel Kupoluyi Esq. who prepared the report failed to tender it. Subpoena Duces Tecum et ad testificandum were issued on Alaka Esq. and Adegboyega Esq. on the 3rd of April 2008 and 11th March 2008. Appellant made determined effort to make these people take oath so that the Respondents could have opportunity to cross examine them. The Respondents objected and the objection was sustained. Learned Counsel for the Appellant urged the Court to discountenance the arguments of the Respondents and allow the appeal.
From the grounds for this petition at page 9 of the record the relevant and crucial statutory provisions aptly in point for the determination of the issue in this appeal is Section 146 subsection 1 of the Electoral act 2006. Its reproduction would be necessary for ease of reference. Section 146 (1) of the Electoral Act 2006 provides:
“An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if, it appears to the Election Tribunal or the Court that the noncompliance did not affect substantially the result of the election”
The crux of the Appellant’s case as averred in his petition is that the election which took place in Osun Central Senatorial District on 21/4/07 is invalid by reason of non-compliance with the provisions and principles of Electoral Act and that the non compliance substantially affected the results of the election. That the widespread irregularities and malpractices resulted in non compliance with the mandatory provisions of the Electoral Act in particular non compliance with Sections 28, 63 (1)-(2),64 (1)-(4), 66 and 75 of the act. That there was widespread voter disenfranchisement which affected the results and that none of the candidates can be validly returned as having won in the said election. Appellant averred these in paragraphs 10, 12.1, 12.2, 12.3 and 12.4 of his petition at pages 8 & 9 of the record thus:
“(10) Your Petitioner states that the election in all the ten Local Government (except Ejigbo Local
Government) Constituting the Osun Central senatorial District in the said election is invalid by reason of noncompliance with the provisions of the Electoral Act 2006
(12.1) – The elections for Osun Central Senatorial District in the said election are not correct (are untrue in every respect) and thus invalid by reason of non-compliance with the Electoral Act and or its principles which said noncompliance substantially affected the result at the said elections for Osun Central Senatorial District in the said election.
(12.2) Your Petitioner claim that the elections for Osun Central Senatorial District in the said election was vitiated by substantial non-compliance with the mandatory statutory requirements of both the Constitution of the Federal Republic of Nigeria and the Electoral Act 2006 which substantially affected the validity of the said election that none of the candidates in the said elections can be validly returned as having validly won in the elections for Osun Central Senatorial District in the said election.
(12.3) The conduct of the election is marred by widespread irregularities and malpractices resulting in substantial non-compliance with the mandatory provisions of the Electoral Act 2006 in particular Section 28, 63 (1-2), 64 (1-4), 66 and 75.
(12.4) There was wide spread disenfranchisement of so many votes and this substantially affected the results of the election, thus vitiating the said election
At page 400 of the record of proceedings 1st Respondent Simeon Oduoye in his written statement on oath in rebuttal of the Appellant’s petition averred thus:
Para 7 – That I have read through the petition against me and I believe that all the allegations made therein are false in that:
(i) All the people named in the petition as having committed electoral malpractices are not my agent and they did not act on my instruction or behalf
(ii) Elections were duly held in all units and wards in all Local Government Areas Constituting Osun Central Senatorial District
(iii) There was substantial compliance with the Electoral Act 2006 during the election
(iv) There was no disenfranchisement of voter
(v) There was no irregular voting within the Senatorial District
(vi) The election in the Senatorial District was lawful and valid and there were no acts of violence
or disruption
(vii) In places where there were irregular voting, I believe they were minor and did not affect the outcome of the election.
The 3rd -710th Respondents pleadings are contained at pages 405 – 410 while the 711th – 712th pleadings are contained at pages 437 – 444) The three sets of Respondents totally denied all the allegations of malpractices, non-compliance of any kind whatsoever against the said contested election.
Appellant in proof of his case called thirty nine witnesses and also tendered exhibits (mainly electoral materials and two reports of the Court ordered inspection of electoral materials) all of which were marked as exhibits 1-128. PW1 – PW36 testified with respect to what transpired in the wards whilst PW37, 38 and 39 were additional witnesses who testified with respect to the Reports of the physical inspection of electoral materials.
The 1st & 2nd Respondents called twenty witnesses. The 3rd – 710th and 711th – 712th Respondents respectively did not call any witness. It is noteworthy to state at this junction that in the absence of the 3rd – 710th and 711th – 712th Respondents giving evidence to substantiate their denial of the Appellants pleadings, they are deemed in law to have abandoned same.
The lower Tribunal having evaluated the pleadings, evidence and the totality of the case presented by all the parties made the following findings at page 1129 lines 9-25 of the record thus:
“This Tribunal has carefully reviewed the evidence of the Petitioner on the issue to the effect that the elections of 21/4/07 in the Osun Central Senatorial District were marred by substantial electoral malpractices. The evidence of violence, voter intimidation, hijacking, illicit thumb printing, ballot box stuffing is overwhelming and beyond reasonable doubt, conjecture or proposition or presumption. Indeed the Petitioner’s evidence is far from being wobbly or vague. We accept the evidence before the Tribunal that although the elections started on a peaceful note in the said district, they became disrupted by invasion of the polling units and booths by armed thugs and hoodlums of the 2nd Respondent. That in this disruption, ensuring chaos, mayhem and voter intimidation, the hoodlums and thugs were emboldened to engage in other malpractices of ballot box snatching, illicit thumb printing of ballot papers, ballot box snatching etc. The evidence of PW1 – PW36 we find is believable and was not in any way impeached in cross-examination. Indeed that there is nothing in the evidence of RW1 – RW20 to contradict the above as all the Respondents witnesses testified that they arrived at their polling units early, cast their votes and within 15 – 20 minutes left the booths for their homes. All of which happened well before 12 noon. Further that they visited no other units in their respective words”
With reference to Section 146 (1) of the Electoral Act 2006 reproduced above, the two conditions stipulated to be fulfilled are:
(a) Substantial non-compliance
(b) Which must have affected the result of the election?
Can it be said that the Appellant has established substantial non-compliance in the light of the evidence before the Tribunal and the findings by the lower Tribunal?
Appellant’s pleading in support of the petition clearly shows that the allegations of non-accreditation of eligible voters thuggery, intimidation of voters, multiple signatures, over-voting, snatching of ballot boxes are criminal in nature. Appellant is therefore required to prove the allegations beyond reasonable doubt. See NWOBODO vs. ONOH (1984) 1 S.C.N.L.R at page 1. It should be noted that the 1st and 22nd Respondents Counsel contended that the malpractices and non-compliance were not proved in the five Local Governments stated in the finding of the lower Tribunal.
Has the Appellant proved the allegations of irregularities and malpractices which are criminal in nature beyond reasonable doubt? Appellant did not call any witness to prove that he or she was chased away from the polling booth. The voters registers used at the election to prove accreditation or lack of it was not tendered through any witness to enable the Tribunal see whether the corresponding names of those who voted were marked on the registers as required by Section 50 (2) of the Electoral Act 2006.
Appellant relied on exhibits 36-128 to prove over voting and multiple signatures. The exhibits were all tendered from the bar. The Respondents Counsel objected to the giving of evidence by I.N.E.C or its representative on subpoena to produce and testify on the documents in their custody. The objection was sustained by the Tribunal. The Tribunal in its ruling ordered that the documents should be tendered from the bar. This is clearly wrong. Sustaining the objection in my view has not placed the parties on the same plain level. However, since the Appellant has not made this a ground of appeal or issue for determination, this Court cannot make a case for any of the parties. Appellant did not lead oral evidence on the purport of the exhibits tendered and more importantly the, Respondents did not cross examine on them. Every piece of evidence that has been admitted in the course of proceedings is subject to be tested for credibility, weight or cogency by the trial Court before it becomes acceptable or accorded any evidential value. See the cases of YAKUBU VS. OMAIBOJE (1998) 7 N.W.L.R Part 559 at 708 and AKANIWON VS. NSIRIM (1997) 9 N.W.L.R Part 520 page 255 at 290.
In the instant case, none of the witnesses gave evidence in respect of arty of the exhibits to at least explain which of them was signed and those which were not signed and stamped. PW37-PW39 who testified as members of the team who carried out the inspection report did not testify on the signed, stamped, unsigned and unstamped, ballot papers.
I am therefore unable to agree with the finding of the lower Tribunal that Appellant through his witnesses has proved substantial irregularities, malpractices and non-compliance which are criminal in nature beyond reasonable doubt.
Assuming which will even be assuming too much that the Tribunal was correct in its findings that the Appellant has proved the allegations beyond reasonable doubt, he still has another hurdle to cross under Section 146 (1) of the Electoral Act. This is whether Appellant has established the effect of the noncompliance on the overall result.
A party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. Tendering exhibits alone without, more is not sufficient for the Court to ascribe evidential value to the exhibits. Appellant failed to plead and prove by credible evidence the particulars of the inflated votes and show that if the inflated figures were deducted from the votes credited to their opponent, the result will change in their favour. See the case of ANOZIE VS. OBICHERE (2006) 8 N.W.L.R Part 981 at 140.
The Tribunal accepted the evidence that there was widespread electoral violence with its attendant malpractices in the five Local Government areas of Orolu, Ila, Irepodun, Boluwaduro and Ifedayo. Appellant contends that he led evidence in eight Local Governments and also that he won overwhelmingly in Osogbo and Olorunda Local Governments.
There is no evidence on the printed record to establish this fact apart from the address of the Appellant’s Counsel at the lower Tribunal and in his brief before this Court. The three other Local Governments that are left are Odo-Otin, Boripe and Ifelodun. Appellant has not established malpractices in the remaining three Local Governments and the two Local Government areas where he claimed to have won overwhelmingly. There was no oral evidence to back up the statements of PW37 – PW39 on oath. Even in the five Local Government areas where the Tribunal found electoral malpractices and non-compliance, Appellant has not shown the voters numerical strength in these Local Governments to be able to convince the Tribunal that he would have won the election. He must be able to show that the number of votes in the 5 Local Governments where irregularities, malpractices and non-compliance have been, established is more than the remaining five Local Governments that were not established to show that if the non compliance had not occurred he would have won the election. This is how the Appellant can show the effect of substantial non-compliance on the overall election.
In the case of ADEBIYI VS. BABALOLA (1993) 1 N.W.L.R Part 267 page 1 at page 16 paragraphs D-E, Oguntade J.C.A (as he then was) had this to say:
“…In the Tribunal findings, there was non-compliance with some aspects of the decree. But did such non-compliance affect substantially the result of the election? To be able to come to the conclusion that it did, the Petitioner ought to have shown that if the non-compliance had not occurred, he might have won the election…”
See also Ajadi vs. Ajibola (2004) 16 N.W.L.R Part 898 page 91 at 170H-171C where Adekeye J.C.A (as he then was) had this to say:
“It is clear from the provisions of Section 35 (1) (now 136) of the Electoral Act (2002) that proof of a breach of any provisions of the Electoral Act will per se not lead to the nullification of an election. To make a case for nullification the Petitioner needs to go further and prove that the breach of the provision of the Act resulted in the election not been conducted substantially in accordance with the principle of the Act and/ or the result of the election.”
It is not enough to merely catalogue instances of malpractices and breaches of the Electoral Act without adding up or tallying the number of votes involved or affected and their impact on the overall result of the election against his interest. The reason for tying such malpractices to votes affected thereby is because irregularities affecting minority votes would not upset the election of a candidate with majority of lawful votes. An election cannot be cancelled on the mere speculation of the probable effect of uncertain or unlawful votes procured through alleged malpractices. See the cases of BUHARI VS. OBASANJO (2005) 13 N.W.L.R Part 941 at page 1; BIYU VS. IBRAHIM (2006) 8 N.W.L.R Part 981 at page 1; BUHARI VS I.N.E.C (2008) 4 N.W.L.R Part 1078 at 546 and INIAMA VS. AKPABIO (2008) 17 N.W.L.R Part 1116 page 225 at 301-302 paras G-B.
In the instant case, Appellant pleaded malpractices and instances of alleged non compliance with the Electoral Act but no evidence was led at the Tribunal to show the effect on the outcome of the election. The figures given by the Appellant’s Counsel in his address at the Tribunal and in his brief cannot be substitute for pleadings and or evidence. See BUHARI VS. OBASANJO (2005) ALL F.W.L.R Part 258 page 1604 at 1731 para E.
The finding of the Tribunal that there is no compelling evidence before it that those breaches are substantial to justify vitiating the election and the result declared in the Senatorial District is therefore not perverse but apt. A finding is said to be perverse when it runs counter to evidence and pleading or when it has been shown that such finding has occasioned miscarriage of justice. See ONU VS IDU (2006) 12 N.W.L.R Part 995 page 657 at 686 paras C-F.
Pleadings are the body and soul of any case in a skeleton form. They are built and solidified by the evidence in support thereof. They are never regarded as evidence by themselves and if not followed by any supporting evidence, they are deemed abandoned. See ATTORNEY GENERAL ANAMBRA STATE VS. ATTORNEY GENERAL FEDERATION (2005) ALL F.W.L.R Part 268 page 1557 page 1611-1612 paras G-B.
In sum, the appeal lacks merit and it is accordingly dismissed. The judgment of the lower Tribunal delivered on 23rd May 2008 is hereby affirmed. There shall be no order as to cost. Each party shall bear his costs.
Now to the Cross-Appeal of the 1st & 2nd Respondents/Cross Appellants. The Cross-Appellants being dissatisfied with the evaluation of the evidence in 5 Local Governments where the Tribunal found that non-compliance and electoral malpractices had been proved filed a notice of Cross-Appeal on 13th June 2008. The Cross-Appellants formulated three issues while the Cross-Respondents distilled four issues for determination.
In the course of dealing with the main appeal, the crux of the cross-appeal had been dealt with where this Court held that the Tribunal made wrong finding to the effect that the substantial non-compliance and malpractices which were criminal in nature was proved beyond reasonable doubt. Since the substantive appeal has been dismissed, the Cross-Appeal has therefore become academic. Each party shall bear his costs.
I must not fail to comment on the language used in the briefs filed, by the learned Appellant’s Counsel. This is not in line with the best traditions of the bar. Learned Counsel for the Appellant saying:
“Contrary to the hollow and idle argument of the Respondent” etc is highly unbecoming. Counsel should not take any brief as personal but should maintain decency in their language. The decorum should be maintained at all times even if heavens fall. The legal profession is a noble one and should be kept so. Hence Counsel or lawyers are addressed “Gentleman or Gentlemen” of the bar.
Finally, the preliminary objection lacks merit and it is struck out. The main appeal lacks merit and it is dismissed accordingly. The judgment of the Governorship and Legislative Houses Election Tribunal sitting at Oshogbo, Osun State delivered on the 23rd of May 2008 is hereby affirmed. The crux of the issues in the Cross-Appeal had been dealt with in the course of dealing with the substantive appeal. The Cross-Appeal has therefore become academic. Each party shall bear his costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read in draft the judgment of my learned brother, MODUPE FASANMI, JCA just delivered. His Lordship has exhaustively considered and resolved the issues in contention in this appeal. I agree with his reasoning and conclusion.
Section 146 (1) of the Electoral Act provides:-
“(1) An election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.”
The sub-section has two limbs. A person challenging the return at an election on grounds of non-compliance must not only prove the noncompliance but must go further to show that the non-compliance substantially affected the results of the election. See Buhari Vs. INEC (2008) 19 NWLR (1120) 246 at 361 B-F; Buhari Vs. Obasanjo (2005) 2 NWLR (910) 241- Buhari Vs. INEC (2005) 13 NWLR (1120) 246 at 361 E-F: Haruna Vs. Modibbo (2004) 16 NWLR (900) 487. It is only after the petitioner has established the noncompliance and the effect thereof on the outcome of the election that the onus would shift to the respondent whose election was challenged to establish that the result was not affected.
In the instant case, evidence to support the second limb of Section 146 (1) of the Electoral Act was lacking. It was not the duty of the court to speculate, as the appellant seemed to want it to do, that the alleged acts of non-compliance substantially affected the outcome of the election. There must be cogent and credible evidence to support the contention. The judgment of the lower Tribunal could not be held to be perverse merely because upon finding that acts of non-compliance were established it failed to nullify the election. In Buhari Vs. INEC (supra) at page 442 EG, Oguntade JSC put the position succinctly thus:
“In my view the mere fact that there were irregularities or failure to strictly adhere to the provisions of the Act is not sufficient to void the election. In order to void the election it must be shown that:-
(1) That the irregularities or failure constitute a substantial departure from the principles of the Act and that;
(2) The irregularities or failure has substantially affected the results of the election.
From the foregoing, it is clear that for any court or tribunal to proceed to invalidate an election, the conditions set out above must be met. It follows therefore that in a situation where the irregularities do not constitute a substantial departure front the principles of the Act and had not been shown to have affected the result of the election the court or tribunal has no power to invalidate the election. Even in situation where the court considers that the proven irregularities constitute a non-compliance, the court still has to be satisfied that the non-compliance has affected the result of the election before the election can be nullified.” (Emphasis supplied).
For these and the more detailed reasons ably advanced in the lead judgment, I also agree that the appeal lacks merit. I hereby dismiss it. The main issue in contention in the cross-appeal has been resolved in the course of determining the main appeal. I agree with my learned brother Fasanmi, JCA that it would amount to an academic exercise to embark on a separate consideration of same, particularly as the main appeal has been dismissed. Accordingly I abide by the consequential orders made in the lead judgment including the order for costs.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother Modupe Fasanmi, J.C.A. His lordship has dealt comprehensively with the issues raised in the main appeal and I agree entirely with his reasoning and conclusion in holding that the appeal lacks merit; it is also dismissed by me. I affirm the judgment of the Tribunal delivered on 23rd May, 2008.
I agree that looking into and resolving the cross-appeal would be an academic exercise thus, wasting precious judicial time which is usually frowned at by the courts, the issues raised therein having been resolved in the course of the main appeal.
I abide by the order made as to costs.
Appearances
S. A. Aborisade
Mrs. T. O. Agbola and Kolapo Alimi Esquire) For Appellant
AND
Mrs. Titilola Akinlawon (with Yemi Giwa Esquire)
M. O. Adedokun For Respondent