OTU BASSEY EKPENTU V. MFAWA OFEGOBI & ORS.
(2011)LCN/4925(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of September, 2011
CA/C/NAEA/198/2011
RATIO
ADMITTED FACTS: WHETHER WHAT IS ADMITTED NEEDS FURTHER PROOF
What is admitted needs no further proof. See Section 75 of the Evidence Act, 2004; In Re- Odutola (2002) F’WLR (Pt.119) 1624 at 1633; Iyamo vs FMBN (1999) 13 NWLR (Pt. 634) 178 at 188. PER JOSEPH TINE TUR, J.C.A
ADMISSION IN AN ELECTION PETITION: WHETHER A PETITIONER HAS NO ONUS OF PLEADING AND PROVING WHAT THE OPPONENT HAS ADMITTED
A petitioner has no onus of pleading and proving what the opponent has admitted. See Olale vs Ekwelendu (1989) 7 SCNJ 181. The petition and replies constitutes notice of the case each party intends to canvass at the Tribunal. See Obmiami Brick and Stones Nig. Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317. PER JOSEPH TINE TUR, J.C.A
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
OTU BASSEY EKPENTUAppellant(s)
AND
MFAWA OFEGOBI & ORS.Respondent(s)
JOSEPH TINE TUR, J.C.A: (Delivering the Leading Judgment): The 2nd and 3rd Respondents conducted election into the Yakurr One (1) State Constituency, Cross River State House of Assembly on the 26th April, 2011. The petitioner was sponsored by the Action Congress of Nigeria and polled 7451 votes at the election. The 1st Respondent of the Peoples Democratic Party was credited with 8920 votes. The 2nd and 3rd Respondents returned the 1st Respondent as the duly elected member of the House of Assembly, Cross River State to represent Yakurr One (1) State Constituency.
Being aggrieved the petitioner challenged the declaration by presenting a petition before the National and State House of Assembly Election Petition Tribunal holden at Calabar, Cross River State on 17-05-2011 . Parties filed their respective pleadings, 1st Respondent did so on 22-06-2011 while the 2nd-3rd and 4th Respondents filed theirs on 15-06-2011. Pleadings having been closed the 4th Respondent moved the Tribunal to decline jurisdiction and strike out the petition as offending the provisions of paragraph 4(1) (b) of the 1st Schedule to the Electoral Act, 2010 as amended which provides as follows:
“4(1) An election petition under this Act shall:-
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the persons returned as the winner of the election; and
(d) states clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought. ”
The argument of the 4th Respondent’s learned Counsel with the tacit agreement of the learned Counsel to the 1st, 2nd and 3rd Respondents was that the petition did not comply with the provisions of paragraph 4(1)(b) of the 1st schedule I have reproduced. The Tribunal upheld the preliminary objection holding at page 487 of the printed record as follows:
” …In the instant case it is proper and safer to strike out the petition for failure to comply with the provisions of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2010 (as amended). Accordingly, the petition is struck out for failure of the petitioner to state, specifically, the right he has to present same.”
But paragraphs 1 – 4 of the petition reads as follows:
“1. Your Petitioner was a candidate for election into Yakurr 1(One) State Constituency Cross River State House of Assembly held on Saturday the 26th, April, 2011.
2. The petitioner contested the election under the platform of the Action Congress of Nigeria, ACN, one of the registered political parties in the Federal Republic of Nigeria.
3. The other registered political parties that contested the election are Labour Party (LP); Congress for Progressive Change (CPC) and All Nigerian Peoples Party (ANPP).
4. The 1st Respondent contested under the platform of Peoples Democratic Party (PDP).”
However, the 4th Respondent’s Reply of 15-06-2011 reads as follows:
“1. Paragraphs 1, 2, 3, 4 and 5 of the substantive petition herein are admitted, only to the extent that:-
(a) The 1st Respondent herein was sponsored by the 4th Respondent herein.
(b) The 2nd Respondent herein after the successful conduct of election on 26th April, 2011 declared the 1st Respondent herein winner of the election to the House of Assembly for Yakurr State Constituency. ”
What is admitted needs no further proof. See Section 75 of the Evidence Act, 2004; In Re- Odutola (2002) F’WLR (Pt.119) 1624 at 1633; Iyamo vs FMBN (1999) 13 NWLR (Pt. 634) 178 at 188.
A petitioner has no onus of pleading and proving what the opponent has admitted. See Olale vs Ekwelendu (1989) 7 SCNJ 181. The petition and replies constitutes notice of the case each party intends to canvass at the Tribunal. See Obmiami Brick and Stones Nig. Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317.
Section 31(1) of the Electoral Act No.6 of 2010 as amended provides that:
“31(1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.”
We are unable to understand how in the face of the facts pleaded by the petitioner and admitted by the 4th Respondent in the Reply the Tribunal arrived at the decision that the petitioner had failed to specifically state the right to present the petition though sponsored by his political party, the Action Congress of Nigeria, to contest the elections.
The ruling of the Tribunal on 3rd August, 2011 was perverse. We allow the appeal, set aside the ruling and remit the petition to the Tribunal for hearing on the merit. No order as to cost.
UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft from the judgment just delivered by my learned brother J.T. Tur, JCA. I agree with his reasoning.
When the Petitioner presented his petition he stated in the petition his status as regards this election.
I believe the Petitioner was in substantial compliance with paragraph 4(1)(a-d) of the 1st Schedule to the Electoral Act, 2010 (as amended).
The ruling of the Tribunal was therefore perverse. This appeal is therefore allowed. The judgment of the Tribunal is set aside. The Petition is hereby remitted to the Tribunal for trial. No orders as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A: My learned brother, Joseph Tine Tur, JCA gave me the opportunity of reading in advance the lead judgment in this appeal just delivered. I agree with the reasoning and the conclusion that the appeal is meritorious. I therefore allow the appeal and abide by the consequential orders in the lead judgment.
I make no order as to costs.
Appearances
Chief O.O. Obono OblaFor Appellant
AND
F.O. Ohete;
Patrick Ekurie;
Christ Onugba;
E.O.E. EkongFor Respondent
