SENATOR ABIOLA AJIMOBI v. INEC & ORS
(2019)LCN/12864(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of March, 2009
CA/I/EPT/GOV./46 I-IV/08
RATIO
CRIMINAL LAW: OFFENCE OF MALPRACTICE SHOULD BE PROVED BEYOND REASONABLE DOUBT
“I am of the view that and it is a fact that each offence of malpractice, being one of the criminal liability, as in order cases stated in the complaint of the appellant, against the 3rd Respondent that the proof of the complaint must be one of proof beyond reasonable doubt. See YUSUF VS. OBASANJO (2005) 18 NWLR (pt. 956) 1 at 118. The only credible and acceptable witness of such a crime is the proof of a polling agent not otherwise. Sec HASHIDU VS. GOJE (2003) 13 NWLR (Part 843) 352 at 393 where the learned Justice said ‘It is settled that only Polling Agents are material witnesses to establish and prove allegations of malpractice.'” PER VICTOR A. O. OMAGE, J.C.A.
CRIMINAL LAW: DUTY OF THE PROSECUTION TO CALL MATERIAL WITNESS
“In Millan Vs. The State (1985) 3 NWLR (Pt.11) Page 190 at 204, the Court resolved that “it is the duty of the prosecution to call all material witnesses whenever an imputation of criminality is made even in a civil matter”. The failure to call such material witness is fatal to the case. If that occurs, it cannot be said that the offences alleged have been proved beyond reasonable doubt. See Opeyemi Vs. The State (1985) 2 NWLR (Pt. 5) Page 101.” PER VICTOR A. O. OMAGE, J.C.A.
INTERPRETATION: MEANING AND EFFECT OF MALPRACTICE
“…it is settled law that malpractice should not always lead to cancellation of votes. See OFIA VS. IBRU, (1992) 3 NWLR (Part 2201). Malpractice as a crime should be proved, not just admitted or denied in pleadings by the Respondent. Over voting alleged in the petition is itself a crime and on the authority of MAGAJI VS. SAVANAH, (1998) 7 NWLR, (Part 557) at 299 doe, not always lead to cancellation of votes per Umaru Abdullahi, JCA, as he then was, now President, Court of Appeal. The reliance on admission in pleading is hardly appropriate in a criminal or averments made in an election Tribunal, or in an alleged election malpractice. The proof of it include the need to show how the alleged malpractice affect the election. See SOMULE VS. ODEBUNMI, 611, SCNLR 414; OFODILE VS. CHIMAROKE (1999) 1 NWLR (Part 268) at 165 -166. In a purely civil matters, not as in a quasi criminal matter like election appeals, See AWUSE VS. ODILI, Supra.” PER VICTOR A. O. OMAGE, J.C.A.
JUSTICES
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
Between
SENATOR ABIOLA AJIMOBI Appellant(s)
AND
INEC & 1240 OTHERS
OTUNBA ADEBAYO ALAO AKALA Respondent(s)
VICTOR A. O. OMAGE, J.C.A. (OFR) (Delivering the Leading Judgment):
The petition of the Appellant, Senator Abiola Ajimobi, was filed on 13/6/08.
The INEC & Others; Respondents 1, 2, 4 – 1241 filed the Respondent’s brief of argument on 2/7/08 and the 3rd Respondent filed the brief argument on 20/6/2008, The 3rd Respondent Otunba Adebayo Akala, filed a 19 grounds amended notice of cross appeal which by the leave of Court after resolving the issue of additional ground, the Court allowed; and it was refilled on 3/2/2009. The 3rd Respondent/Cross Appellant filed his amended brief of cross appeal by leave of Court on 3/2/2009. The Appellant/Cross Respondent filed the Appellant/Cross Respondent’s brief on 30/6/2008. The INEC, 1st, 2nd, 4th -1241st Respondents filed a Cross Respondent’s brief on 2/7/2008. The Cross-Appellant filed a reply brief to Cross Appellant’s brief dated 7/7/2008.
In this appeal and cross-appeal by the 3rd Respondent on cross appeal being, an appeal against the decision of the Court below, I intend to first examine and conclude the main appeal before I deal with the cross appeal of the 3rd Respondent, the Cross-Appellant’s brief and its concomitants. In the Appellant’s brief, the Appellant formulated eight grounds and 1st, 2nd, 4th – 1241st Respondents, four issues which are in fact a consolidated response to the eight issues of the Appellant. The 3rd Respondent formulated five issues for determination of the appeal of the Appellant. The issues formulated by INEC, 1st, 2nd,4th – 1241st Respondents will be stated as the circumstances occur in this judgment. The issues formulated by the Appellant in determination of the appeal are as follows:-
“( 1) Whether the Tribunal was right in holding that the Appellant did not prove the allegations of electoral malpractices made in the petition as required by law. Distilled from Grounds 1, 2, 3, 9, 20-21.
(2) Whether or not the Appellant has not established the allegation of rigging and inflation of votes in favour of the 3rd Respondent in accordance with the law to warrant the nullification of the 3rd Respondent’s return as the winner of the Election, Distilled from grounds 4 & 5
(3) Whether the Tribunal was right in holding that Exhibit PE 45 cannot be relied upon in proof of allegations of Electoral offences alleged in the petition. Distilled from grounds 6 & 7.
(Note, Exhibit PE 45, is the Tribune Publication).
(4) Whether or not an evidence or general denial by a Respondent against whom allegation are made does not constitute an admission. Distilled from ground 8.
(5) Whether the Tribunal was not in grave error when it held that it is not its duty to compare conflicting signatories that are inherent in these exhibits already admitted before it. Distilled from grounds 10 & 11, this evidenced on 108.
(6) Whether the Tribunal was not in grave error in holding that allegations of cancellation and allocation is not a breach or violation of the Electoral Act, 2006. Distilled from ground 12.
(7) Whether the Tribunal was right in holding that the petitioner has not established the allegation of ballot stuffing in the Governorship Election of 14th April, 2006. Distilled from Ground 14.
(8) Whether the Judgment of the Tribunal is not perverse or altogether erroneous. Distilled from Grounds 13, 15, 16, 17, 18, 19, 22, 23, 24 and 25.”
As I intend in this appeal to consider the appeal of all the parties together, I will, as above, state the issues for determination of all the parties though the 3rd Respondent is the actual Respondent, I will state first in the appeal the issues to be determined formulated by the 1st, 2nd, 4th – 1241st Respondents: – Counsel Chief Esan, SAN, formulated the issues to be determined as follows: –
“(1) Whether there was in fact any admission on the pleadings of his Respondents which can entitle the Appellant to the relief sought which are declaratory. It deals with issue 4, formulated by the Appellant.
(2) Whether the Tribunal was wrong in holding that the Petitioner has railed to prove beyond reasonable doubt all allegations of violence, malpractice, corrupt practices and that the 3rd Respondent was responsible for such acts in Ogbomoso South, Ogbomoso North, Surulere, Ibarapa Iseyin and Ogo Oluwa Local Government areas during 14th April, 2007 Governorship Election in Oyo Shah This covers issues 1, 2, 3, and 7 of the issues formulated by the Appellant.
(3) Whether the petitioner has proved the allegation of noncompliance with the Electoral Act on the Appeal of the Respondent to warrant the nullification of lawful votes of the 3rd Respondent compiled issues from Appellants brief issues 5 and 6.
(4) Whether the Tribunal was wrong in holding that the noncompliance of the affected polling unit did not substantially affect the results of the election from issue 8 formulated by the Appellant.”
The 3rd Respondent formulated five issues as follows: –
“(1) Whether on the state of the pleadings the petitioner is entitled to judgment on the basis of an alleged admission having regard to the relief of the petitioner which are declaratory and allegation in the petition which are criminal in nature? This is in respect to issue of the Appellant’s brief for determination.
(2) Whether this Tribunal was wrong in holding that the allegation of violence, malpractices, irregularities, corrupt practices were not proved in Ogbomoso North, South, and Ogo Oluwa Local Governments. On issues 1, 2, 7 of the Appellants’ brief.
(3) Whether the Petitioner/Appellant made out any case to warrant nullification of lawful votes on account of alteration and cancellation of results without initialing. On issues 6 of the appellant.
(4) Whether the Petitioner proved allegations of not signing and stamping of ballot papers by party against to warrant nullification of lawful votes of the 3rd Respondent – Issue No.5 of the appellant.
(5) Whether the Tribunal was in error in not nullifying the election and return of the 3rd Respondent having regard to the fact that the petitioner failed to prove how the alleged irregularities and non-compliance substantially affected the result of the election.
This deals with issue 8 formulated by the appellant.”
At this stage before I go on to consider the arguments and submission of counsel, I wish to state a synopsis of the facts given rise to the decision of the Court below. The Court sat in Ibadan; on the election which took place on 14th April, 2007, for determination of the Governor of Oyo State. The Appellant/Petitioner scored 239,189 while the 3rd Respondent scored 357,912, the highest vote in the election and he was returned declared as the Governor.
The now appellant was dissatisfied with the return of the 3rd Respondent by 1st, 2nd, 4th-1241st INEC Respondents. The Appellant filed the appeal before the tribunal below. After considering the issues raised, the
Tribunal below recorded as follows:
“In the instant case, we are satisfied that the 3rd Respondent who has scored the highest or majority of lawful votes cast of 264,799 has met the requirements of Section 147(2) of Electoral Act 2006, and Section 179 of the 1999 Constitution. In conclusion, we hold that the petition fails and it is dismissed. We have by virtue of Section 146(1) of the Electoral Act 2006 sustained the election of Otunba Adebayo Alao Akala as the Governor of Oyo State.”
The Appellant filed a copious reply to the brief of the 1st, 2nd, 4th to 1241st Respondents. The reply is dated 8 July, 2008. The reply is 74 pages.
The Appellant also filed a lengthy reply to the brief of the 3rd Respondent filed on 30/6/08. All these were filed after the judgment of the Court below, I prefer to consider the contents of this appeal before going to the Cross Appeal of the 3rd Respondent.
In his brief, the appellant in issue one, asked whether the Tribunal was right when it held that the Appellant did not prove the allegations of malpractices made in the petition as required by law having regard to the state of pleadings of both sides. The above issue can be merged and considered with issue 2 which asked whether or not the Appellant had not established the allegation of rigging and inflation of votes in favour of the 3rd Respondent’s return as the winner of the election. The above two issues are arguable on proof of certain onus of proof which also is required in issues 6 and 7 when the appellant asked whether the Tribunal was not in grave error in holding that allegation of cancellation or alteration is not in breach or violation of the Electoral Act 2006.
In the four issues of the Appellant in which the appellant faulted the decision of the Tribunal on the allegation of (1) electoral malpractice (2) allegation of rigging and intiation of votes in favour of the 3rd Respondent (3) cancellation and alteration of votes, (4) stuffing of ballot papers, all of which were denied vigorously by the 3rd Respondent and 1st, 2nd, 4th – 1241st Respondents. Each offence itemized above (1-4) is a criminal offence which required to be proved beyond reasonable doubt. See Section 137 Evidence Act even when the allegation is made in a civil matter.
It must be remembered that these offences are alleged to be committed in the disputed areas of Ogbomosho North, Ogbomosho South, Surulere and Ogo Oluwa Local Governments, Each of the offence will be considered serially to see whether the Tribunal was in error. The issues are said to be distilled from grounds 2,3,4,5,6,7. I have considered the various submissions.
I am of the view that and it is a fact that each offence of malpractice, being one of the criminal liability, as in order cases stated in the complaint of the appellant, against the 3rd Respondent that the proof of the complaint must be one of proof beyond reasonable doubt. See YUSUF VS. OBASANJO (2005) 18 NWLR (pt. 956) 1 at 118. The only credible and acceptable witness of such a crime is the proof of a polling agent not otherwise. Sec HASHIDU VS. GOJE (2003) 13 NWLR (Part 843) 352 at 393 where the learned Justice said “It is settled that only Polling Agents are material witnesses to establish and prove allegations of malpractice.” This was further confirmed in the case of Obasanjo referred to above. In the instant appeal, the Petitioner presented evidence of 11 persons to cover 160 polling units of the allegedly affected areas of Ogbomosho etc.
Clearly the 11 witnesses are inadequate to prove any allegation of malpractice and other offences alleged by the appellant. Furthermore, the appellant presented PW 2 and PW 12 as witnesses. The latter was uncertain what she was at the election whether she was a ward supervisor or a polling agent; in fact reading through the statement and description of her on oath, her description was in conflict with the petitioner’s declaration. The evidence of such a person in one Local Government docs not and cannot contain allegations made by the Appellant concerning the other polling unit. It is dearly unacceptable because such evidence is inadequate. There may have been in the Appellant’s view “an avalanche of evidence”; as he said, yet the evidence he presented is inadequate to prove any of the allegations of malpractice and other crime alleged which in any case was not proved beyond reasonable doubt as required by law. See Evidence Act 137. Issue one therefore fail. The lower Tribunal could have done no more than refuse the complaints. This Court also refuse it.
On the issue of rigging and inflation of votes in Ogbomosho North, South, Surulere and Ogo Oluwa Local Governments, as in the case above, the offence of rigging and inflation of votes is a criminal offence which need to be proved beyond reasonable doubt. The evidence presented by the appellant in the petition is hardly sufficient to establish the crime alleged in the petition. As in the earlier case, the failure to adduce evidence from polling agent of allegation of stuffing of ballot votes is not sufficient to prove the offence when the said allegation fail to make a full proof of presenting the ballot box in Court. Besides after the 11 Agents have recovered 538 polling stations on which no evidence of rigging or inflation of votes is presented; it is clearly unjust to set aside an election properly conducted on the allegation of 11 out of 538 polling agents whose testimony in this case fails to satisfy the rule of evidence under our criminal law. The onus is on the party alleging that the inflation and rigging was done to give particulars of the offence of the inflated figures and show the figure was like from his own in favour of the 3rd Respondent, See KALU VS. UZOR supra. Failure to do this is vital to the proofs of allegation or crime against the 3rd Respondent.
It is not for the accused person to defend himself. See section 137 of Evidence Act. Furthermore, in the case above – (4) of stuffing of ballot papers, the usual practice and acceptable proof in election hearing is for complainant to tender the ballot box in the Court with the papers stuffed. This was not done. The accusation against the 3rd Respondent fail and it is resolved against the Appellant, as there is no proof whatsoever against the 3rd Respondent or against the INEC – 1, 2, 4 – 124th Respondents.
In each of the accusation listed above, it is not surprising that the Tribunal below in the petition before them have done no other than hold that none of the crimes has been proved by the Appellants. Take the crimes of violence for example and malpractice which the appellant sought to show are against Electoral Act 2006. The offence is indeed against the provision of the Electoral Law but committed by who? The Appellant did not show by who; and in this case he railed to prove the offence. The attempt in the petition to shift the onus of proof to the 3rd Respondent, using the provision of the Evidence Act in pleading ignores the requirements for proof of such offences which is beyond reasonable doubt, section 137 of the Evidence Act, the attempt to shift the burden of proof on the 3rd Respondent using the rule of pleadings is wrong as the law imposes otherwise. Several Evidence of Crime allegedly committed by 3rd Appellant which were presented by the Appellant in the testimony of PW 19 viz the soldier photographer whose testimony does not relate to Ogbomosho in PE 20 does not relate to Ogbomosho. It is of Ibadan. An Assistant Commissioner of Police who tendered exhibit PE 43, (the Police Report) tendered the Police Report which states the view of the Police on the election on 14/4/07 generally and described in particular Ogbomosho Areas as peaceful; Evidence of PW 21, the Tribune Reporter, who refused in Court to perform, because, it was not he who covered the news that the Soun of Ogbomosho was unable to vote because of riot in Ogbomosho. The evidence of witness PW21 for the Petitioner/Applicant who said he could not testify on the alleged issue as he heard nothing of it. In all these allegations of the Petitioner, there was no evidence or proof of committal of electoral offence.
The police in Ogbomosho North, South, Surulere and Ogo Oluwa, which are the specific areas, the Appellant claimed the acts occurred said, the election was peaceful generally in that area. Recently in the Court of Appeal Benin in Appeal No. CA/B/EPT/3/12A/08, the Honourable President of the Court of Appeal in his judgment in the Appeal filed inter alia that the reported incidence of violence is not a sufficient ground to set aside the election when the charge is not fixed on any person. In Millan Vs. The State (1985) 3 NWLR (Pt.11) Page 190 at 204, the Court resolved that “it is the duty of the prosecution to call all material witnesses whenever an imputation of criminality is made even in a civil matter”. The failure to call such material witness is fatal to the case. If that occurs, it cannot be said that the offences alleged have been proved beyond reasonable doubt. See Opeyemi Vs. The State (1985) 2 NWLR (Pt. 5) Page 101.
In the light of the above, the complaints made by the Petitioner against the Tribunal in this case is unfounded since the offences alleged by the Appellant were not proved in the Court below. It is not enough proof to simply shift the provisions of Evidence Act 149(d) which is not applicable in criminal trial as the proof of criminality does not shift. It is the Appellants who must prove the crime beyond reasonable doubt. The Issues 2, 3, 6 & 7 fail.
Further in Issue 3; the Appellant in this brief has asked “whether the: tendering of exhibit PE45 cannot be relied upon in proof of allegation of electoral offences alleged in the petition.”
Exhibit PE 45 is a newspaper publication. The contents of the report of an event in the newspaper is generally subject to the view and opinion of the management of the newspaper. To that extent its objectivity is doubtful. In the instant case, the witness PW12 who tendered the newspaper who was subpoenaed to tender the copy of the paper; where a report of what happened on the 14/4/07 is published concerning the Soun of Ogbomosho. The king of Ogbomosho was alleged in the newspaper to have been prevented from casting his vote. It turned out that the witness PW 12 knew nothing of the alleged event and could not testify on it. Furthermore, evidence shows that if at all the event occurred, it was by an over- zealous policeman who threw a gas canister in the air. The witness from the Palace of Soun, his private security of Soun firmly denied the occurrence of the incident of Soun not being able to vote. Exhibit PE 45 was not only denied, it has been proved to be worthless. It is therefore not sufficient to aver of the violence.
In any case, how can an incident, if it is true, which occurred in only one of several constituencies be relied upon in proof of electoral offences when the said exhibit failed to justify the reason why it was tendered; and its contents have been denied. The Tribunal was right to hold that exhibit PE45 cannot be relied upon for any purpose. The Issue 3 of the Petitioner/Appellant is resolved against the Petitioner/Appellant and it fails.
I wish now to consider issues 1 & 4 together. The two Issues rely particularly on the effect of pleadings in proceedings whether the Tribunal was right in holding that the Appellant did not prove the allegation of electoral malpractices made in the petition. In Issues 1, 4 and 8 what the Appellant did was to make a general plea and said because the Respondents did not traverse the plea, the Respondents admitted the guilt.
Considering the nature of the Appellant’s petition, when he asked “whether or not traverse or general denial by Respondent against whom allegation are made do not constitute admission”. This is also distilled from Ground 8. In all such cases, it was expected by the Petitioner that pleadings alone would constitute a shift and proof by admission of his allegation of committal of crimes to the 3rd respondent. This is in clear negation to the provision of the criminal law. Admission of committal of crimes must be clear, specific and unambiguous. It is trite law. In this case, all the allegations made by the Petitioner/Appellant were accusation of committal of crimes which should be proved beyond reasonable doubt. The Electoral Act, 2006 Sections 136, 137 and 138 so prescribed also. The accusation made by the Petitioner/Appellant include those of violence, rigging, stuffing of ballot boxes, alteration of figures, etc. Each of the crimes cannot be a subject of admission by pleadings as contained in Issue one of the Appellant’s brief. The crimes called allegation form the bulk of the petition of the Appellant. Not one of the crimes alleged can succeed without proof by the Appellant and none can be proved by admission per se which is not clearly made or admitted by implication. Consequently, the averment of Appellant when placed side by side with the Respondents’ pleadings cannot succeed because the onus of proof of the criminal allegation made is on the Appellant. None except in averment in the petition is subject of appraisal by pleading. The same rule applies to issue 4 of the Appellant’s brief on alleged admission in a pleading. The Petitioner/Appellant has not referred to any particular part of the petition which is not criminal to which the above requirement of proof does not relate, The Tribunal cannot be put in a position to perform a surgery on the references being made by the petitioner in his brief:
I have read again the contents of issue I in which the appellant complained that the Court below held that malpractice in an election was not proved. Besides malpractice in an election being a criminal offence, it is settled law that malpractice should not always lead to cancellation of votes.
See OFIA VS. IBRU, (1992) 3 NWLR (Part 2201). Malpractice as a crime should be proved, not just admitted or denied in pleadings by the Respondent. Over voting alleged in the petition is itself a crime and on the authority of MAGAJI VS. SAVANAH, (1998) 7 NWLR, (Part 557) at 299 doe, not always lead to cancellation of votes per Umaru Abdullahi, JCA, as he then was, now President, Court of Appeal. The reliance on admission in pleading is hardly appropriate in a criminal or averments made in an election Tribunal, or in an alleged election malpractice. The proof of it include the need to show how the alleged malpractice affect the election. See SOMULE VS. ODEBUNMI, 611, SCNLR 414; OFODILE VS. CHIMAROKE (1999) 1 NWLR (Part 268) at 165 -166. In a purely civil matters, not as in a quasi criminal matter like election appeals, See AWUSE VS. ODILI, Supra.
The parties are indeed bound by their pleadings. AHAMU VS. ADIGMI (1993) 7 NWLR (Part 221); WOLUCHEM VS. Gum (1981)5 SC 291; and a litigant whose pleading departs from the evidence go to no issue. In PEAT VS. LOUIS and in UGOCHUKWU VS. UNIPETROL NIG. PLC. (2002)7 NWLR (Part 765). The Supreme Court ruled that where there is a traverse resulting in admission of contents of the statement of claim but it is not a direct admission, a general traverse in the sense of a general denial is sufficient to effect to send back the burden of proof on the plaintiff. In my view, assuming that the appellant was right in his view of assuming that the Respondent has a burden of proof in the Election appeal the admission assumed by the appellant is not sufficient to shift the burden of proof to the respondent because a general is traverse my view too inadequate and I so rule to place the burden back on the Respondents to prove his allegation of crimes in issues 1 and 4; whether the issues are in criminal and civil matters; particularly as the allegations are of a crill1inal nature.
In any case, an election is not purely a civil matter, an election appeal as in this case is not amenable to regular rules of pleadings. Issues 1 and 4 fail; and are resolved against appellant.
The second part of issue 7 in this petition is whether the Tribunal was right in holding that the petitioner has not established the allegation of ballot stuffing, considering the testimony of PW 23 tendered and exhibit PE 48, PE 49 and PE 50. I have earlier considered in this appeal the nature and definition of the offence of ballot stuffing. I now wish to consider in detail the requirement of proof of ballot stuffing as an offence which should be proved beyond reasonable doubt. The Tribunal who had the benefit of seeing and listened to the cross-examination of PW23 resolved and ruled that PW 23 was called to testify for the appellant, not INEC or 3rd respondent and not for the Resident Electoral Commissioner for Oyo State who was the returning officer. PW 23 testified as to the inadequacies that he saw in the electronic register which was why the commissioner used the manual register as well. None of the allegation made by the appellant should convey any right to the appellant to assume that PW23 gave hearsay evidence favourable to the Petitioner. In fact the testimony of PW23 is against the interest of the appellant. As PW23 was not treated as a hostile witness, it is held against the appellant manual registration was used also on the date of the election in the disputed area; when electronic register was found incompetent. How then can it be said therefore that election did not take place at Ogbomosho North, South.
Now I wish to go back to the specific proof of stuffing of ballot paper, none of which the appellant did. On an allegation of stuffing of ballot papers, the cases of KALU v. UZOR 8 NWLR (pt.981) supra and HARUNA v. MODIBO supra, an appeal in which incidentally I was in the panel as NO.2; we ruled that a Petitioner who claims that ballot box in the election was stuffed must tender before the court, the stuffed ballot box with ballot papers therein, a failure to do so casts doubt on the evidence. The appellant failed to do this he must fail. In any case, the onus on the Appellant that PW23 who so testified has not been shifted by the Appellant.
Appellants’ issue 8 is on the same ground as has been considered in issues one above. The appellant has failed woefully to prove his claim by relying on admission in pleadings despite the general traverse of the Respondent when there is no specific proof and in the absence of direct evidence of the Appellants proof of the allegation and accusation made by the appellant. I cannot agree that the judgment of the Tribunal is perverse.
It is not. The Petitioner/Appellant has simply failed to prove his claim and he must fail- See HARUNA VS. MUDIBO supra. The onus of proof in all the averment made by the appellant is on the appellant and the appellant can only succeed on the strength of his case, nut on the weakness of the Respondent. KODLINYE VS. ODU (1936) 2 WACA. The Petitioner/Appellant has failed to prove his claims against the 1st, 2nd, 3rd, 4th – 1241st Respondents and the appeal must fail. It is dismissed. There will be costs to 1st respondent of N10,000.00 and costs of N10,000.00 to each of 1st, 2nd, 4th – 1241st respondent.
I proceed now to treat the cross appeal filed by the 3rd respondent against the Appellant; and the response of the appellant. In the cross-appeal the 3rd cross-appellant filed also a reply brief. The cross-appeal is against the ruling of the Tribunal which rendered void results of the election in certain areas where the Tribunal agreed with the petitioner/appellant that there was non-compliance with electoral law; and in some cases provisions of electoral manual. The 3rd respondent petitioner averred that he thereby lost a reasonable number of votes though he won the election by scoring the highest majority of lawful votes cast of 264,799 and met the requirement of Section 147(2) of the Electoral Act, 2006 und Section 179 of the 1999 Constitution. The 3rd respondent was however, dissatisfied with the section of the judgment of the Court below he has cross-appealed, of the leave of court, the 3rd respondent filed 19 grounds of appeal and formulated five issues as follows: –
“(1) Whether the Petitioner had competent depositions to support his petition, if not whether the lower Tribunal ought to have struck out the petition Ground 9 notice of cross-appeal.
(2) Whether the election tribunal was justified in concluding that there were incidence of over voting and can lawfully use same to void lawful votes of the cross-appellant. Grounds 1, 2, 4, 5, 6,7,10, 11, 12, 13, 14, 18 and 19 of the Amended notice of cross-appeal.
(3) Whether Petitioner pleaded and proved incidence of non signing, non stamping and dating Form of EC 8 A to warrant the lower tribunal voiding the cross-appellants’ votes on that account, Ground 16 of the Amended notice of cross-appeal.
(4) Whether the provision or election manual is mandatory to render void lawful votes cast in substantial compliance with the provisions of the electoral Act Ground 5 or the amended notice of cross-appeal.
(5) Whether the petitioner pleaded and proved allegations of non accreditation to warrant the voiding of lawful votes of the cross appellant on that account, Grounds 3 and 17 of the Amended Notice of Cross-Appeal.”
In the brief of the Appellant/Cross Respondent, he formulated to the 3rd Respondent’s cross appeal the following issues for determination:-
‘”(1) whether the tribunal was not right in holding that the case of electoral malpractices and irregularities bothering on over voting, none accreditation or improper accreditation and none signing of electoral form was made out.
Distilled from grounds 1, 2, 3, 6,7, 8, 10, 11, 14, 16, 17, 18 and 19.
(2) Whether or not the tribunal was right in rejecting the manual register tendered by PW 23 distilled from grounds 4, 5,12 and 13.
(3) Considering the totality of evidence adduced etc whether the issue of defective witness statement on Oath and failure of the petitioner to prove that he has agents who were not allowed to sign result sheets ever arose for the determination of the Tribunal from grounds 9 and 15.”
The Appellant/Cross-Respondent raised the following preliminary objection under the rules. Cross respondent urged the court to strike out grounds 1, 2, 4, 5, 6, 7,9,10,11,12,13,14 and 15 of the original notice of appeal as well as grounds 1, 2,3,4 of the purported additional grounds of appeal contained in his two notices of appeal dated 5th April, 2008 and 23rd June, 2008.
The Cross respondent filed also notice of the Cross appeal. The Cross appellant aver that ground in the notice of the cross-appeal docs not derive from the issues joined, as the court below did not make any decision on it therefore as in ground 15 does not derive from the ratio decided in the court. The issues cross appellant aver, they are therefore incompetent and should be dismissed.
I have considered the contents of the cross-appeal of the 3rd cross appellant; and after due consideration I am really unable to see what purpose the result of the cross appeal will achieve in the proceedings except cosmetic: or better still no more than of academic purpose. The court does not sit to consider and rely on cosmetic and academic purpose.
For the above reason, it is my considered view and I so rule that further proceedings in the cross-appeal will serve no purpose, as in any case, most of the issues canvassed have been determined in the main-appeal, consequently I will not proceed to treat the cross appeal.
The issues in the cross-appeal are hereby struck out.
ABUBAKAR ABDULKADIR JEGA, J.C.A.: I agree.
MOHAMMED LADAN TSAMIYA, J.C.A.: I agree.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
BODE RHODES-VIVOUR, J.C.A.: I agree.
Appearances
Chief Wole Olanipekun, SAN, Chief Adeniyi Akintola, SAN,
Adebayo Shittu Esq., F. A. Aofolaju (Miss), F. J. Adema, Esq.,
Oyebola Ilori (Miss), Ojo Adebayo, Esq.,
Kazeem Gbadamosi, Esq., Abiodun Amok, Esq.,
Kabir Akingbolu Esq., Ismail Ajibade Esq.,
Akinwande Olusayo Esq., Oyewale Olutayo Esq.,
Odeleye Adebola (Miss), Dapo Atanda Esq.,
Ademola Taiwo Esq.For Appellant
AND
L. O. Fagbemi, SAN, Prof. Taiwo Osipitan, SAN,
Chief R. A. Ogunwole, SAN, N. O. O. Oke, SAN,
S. A. Onifade Esq., Aare I. Abdulsalam Esq.,
Prof. O. Oyewo, Dr. Akin Onigbinde,
K.W. Bankole Esq., Abiodun Ogunjimi Esq.,
K. Akinwumi Esq., A. B. Adeyinka Esq.,
H. O. Afolabi Esq., S. O. Ajayi Esq.,
S. Adewoye Esq., L. A. Adedigba Esq.,
I. A. Saka Esq., L. L. Akanbi Esq.,
O. A. Ojo Esq., A. A. Lufadeju Esq.,
K. Ayemoyin Esq., O. J. Akinwale Esq.,
A. O. Ajakayc Esq., Segun Adebayo Esq.,
R. Isamotu Esq., W. A. Ogunfolabi Esq.,
A. O. Oladele Esq., A. T. Adebayo Esq.,
W. A. Olajide Esq., Chief Makanjuola Esan,
SAN with Ayodeji Esan Esq., and Olayinka Esan EsqFor Respondent
