SENATOR MONSURAT J.A. SUNMONU & ANOR v. SENATOR TESLIM FOLARIN & ORS (2019)

SENATOR MONSURAT J.A. SUNMONU & ANOR v. SENATOR TESLIM FOLARIN & ORS

(2019)LCN/13802(CA)

In The Court of Appeal of Nigeria

On Monday, the 14th day of October, 2019

CA/IB/EPT/OY/SEN/13/2019

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

RATIO

STANDARD OF PROOF OF ELECTORAL MALPRACTICE

Concerning allegations of electoral malpractices which learned counsel for the appellant sought to make heavy weather of, the record show that the Tribunal is very cognizant of that requirement and the requisite ingredient of proof because at page 1181-1182 of the record, the Tribunal citingMark v. Chukwuemeka & Ors (2015) LPELR 40708 CA the trial Tribunal stated thus:
?The law is settled that allegation of corrupt practices in an election petition being in the nature of criminal charge must be proved beyond reasonable doubts.”
Again, see Omisore v. Aregbesola (2015) LPELR-24803 (S.C)
In all the evidence led, the Petitioners failed to prove the allegations of Electoral Malpractices or corrupt practices which are criminal in nature. Also, the Petitioners did not show that the 1st or 2nd respondent authorized the corrupt practices or electoral malpractices. They also failed to show that they would have I won the election if there were no such corrupt practices. So, the Tribunal held that the ground of the petition in that respect fails.?
The Tribunal went on to show that the appellant failed to prove the allegations of electoral malpractices as required by law.
Having failed to prove the essential elements of their petition, the lower Court was left without any option than to dismiss the petition as it did. This appeal arising from the decision of the Tribunal has not shown that the Tribunal misdirected itself on law or fact and so the judgment of the lower Court cannot be disturbed. Accordingly, the appeal lacks merit and is dismissed. PER NONYEREM OKORONKWO, J.C.A.

STANDARD OF PROOF OF ELECTORAL MALPRACTICE

It is settled law that allegations made in an election Petition which are civil in nature must be proved by preponderance of evidence. See UCHA & ANOR V. ELECHI & ORS (2012) 13 NWLR (PT. 1317)330; OMISORE & ANOR V AREGBESOLA & ORS (2015) 15 NWLR (PT. 1482)205; BUHARI V. OBASANJO (2005) 13 NWLR (PT. 941)1. The task before the lower Tribunal therefore include:
(i) looking into issues as joined by parties in order to determine which of the evidence is relevant to the determination of issues before it.
(ii) giving equal strength to the case of the parties and in the process avoid projecting the case of one party more than the other to prevent likelihood of bias.
(iii) ensuring that any evidence believed by the Tribunal is put on the imaginary scale. Any evidence that is disbelieved is automatically repelled by the imaginary scale and a consideration of the demeanour of the witnesses is also relevant.
?(iv) undertaking a consideration of the provisions of the Evidence Act. In so doing any evidence which violates the provisions of the Evidence Act must be rejected or expunged from the record.
See BUHARI V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) 19 NWLR (PT. 1120)246; CHANGE FOR PROGRESSIVE CONGRESS V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2011) 18 NWLR (PT. 1279)493; EZEMBA V IBENEME & ANOR- (2004) 14 NWLR (PT. 894)617. PER FOLASADE AYODEJI OJO, J.C.A.:

Between

1. SENATOR MONSURAT J.A. SUNMONU
2. AFRICAN DEMOCRATIC CONGRESS (ADC) – APPELLANTS/CROSS-RESPONDENTS Appellant(s)

AND

1. SENATOR TESLIM FOLARIN – RESPONDENT
2. ALL PROGRESSIVES CONGRESS (APC) – RESPONDENT/ CROSS APPELLANT
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – RESPONDENT Respondent(s)

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The appellants in this appeal by their petition at the National and State Houses of Assembly Election Tribunal challenged the election and return of the 1st respondent at the election held on 23/2/2019 for the post of Senator for Oyo Central Senatorial District. In the election and its result, the 1st respondent scored 90,080 votes while the appellant scored 41, 657 votes. The 1st respondent was accordingly declared elected and returned as such by the 3rd respondent who conducted the election.

In the petition challenging the 1st respondent?s election and return, the appellants founded their petition on the following grounds:
a. The 1st respondent was not duly elected by a majority of lawful votes cast at the election.
b. The election was invalid by reason of corrupt practices or non-compliance with provisions of the Electoral Act.

Giving the facts and particulars in support of the petition, the appellants in paragraphs B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U and V. Pleaded their allegations of non-compliance and malpractices

which they alleged vitiated the election and return. These range from non-voting to over-voting, non-collation to over-collation, non-accreditation to multiple voting, non-use of PVC and illegal thumb printing of ballot papers by unregistered voters, inflated votes, fraudulent entry into result sheets and various other forms of electoral malpractices. Electoral officers were alleged to have sometimes refused to make proper entries into result sheets and perpetrating numerous forms of electoral fraud contrary to the Electoral Act, guidelines, manual and other stipulations governing the election.

Against the backgrounds of electoral malfeasance or misfeasance alleged the appellants sought for a nullification of the election and for fresh election.

At the Tribunal, the appellants lined up and called 55 witnesses and tendered several documents as exhibits.
?
In a reply which embodied a preliminary objection, the 1st respondent denied all the allegations of the appellants and outlined how the election and return complied with due process i.e. the electoral laws and its manuals. The 2nd and 3rd respondents denied the allegations of electoral

malpractices and outlined step by step how the election and return complied with due process.

At the hearing, the Tribunal, methodically heard evidence of the 55 witnesses of the appellants and evaluated the evidence of each witness and examined the documents tendered and found after such scrutiny that the allegations made by the appellants were not proved and in consequence dismissed the petition on 16th August, 2019 consequent upon which the appellant brought this appeal vide notice of appeal of 5/9/19.

In the issues for determination arising from the grounds of appeal, the appellants raised two issues thus:
Issues for Determination
(i) Whether the appellants proved non-compliance and irregularities in the conduct of the election in the Wards and Units of the 8 Local Government Areas of Oyo Central Senatorial District complained of having regard to the state of evidence led by the Petitioners/Appellants to warrant the nullification of the results and the return of the 1st and 2nd respondents. Covers Grounds 3 to 8.
?(ii) Whether in view of the pleadings of the parties, the provisions of the Electoral Act, the Manual and

Guidelines for the election of 2019, the trial Tribunal was wrong when it refused to nullify the result of the election in the Oyo Central Senatorial District complained of where there was evidence of over-voting and non-accreditation. Covers Grounds 1 and 2.
For the 1st respondent, the issues for determination are:
1. Whether based on the evidence adduced by the appellants the appellants proved their allegations in their petition to warrant the nullification of the election and returns of the 1st and 2nd respondents as the winners of the Oyo Central Senatorial District Election.
(Distilled from Grounds 3, 4, 5, 6, 7 and 8 of the Notice of Appeal)
2. Whether the trial Tribunal was not right in refusing to nullify the result of the election in Oyo Central Senatorial District having found that the appellants failed to establish the complaint in the petition.
(Distilled from Grounds 1 and 2 of the Notice of Appeal)
The 2nd respondent raised two issues for determination as follows:
?1. Whether any credibility ought to have been given to any of the Petitioners witnesses who did not witness any of the events over which they

gave evidence. Grounds 1, 3, 4 and 6.
2. Whether the lower Tribunal was right in dismissing the petition Grounds 2, 5, 7, 8 and 9.

The 3rd respondent at paragraph 28 of the 3rd respondent?s brief raised one issue thus:
Whether the Tribunal was right in holding that the appellants failed to prove that there was no substantial compliance with the provisions of extant electoral laws, guidelines and manual during the OCSE Elections.

The issues were duly argued by respective counsel in their briefs.

In its own adjudication, the Tribunal distilled one compendious issue namely:
Based on the facts presented by all the parties, have the Petitioners proved their case so as to entitle them to the reliefs being sought.
As indicated earlier, the Tribunal dutifully perused the evidence of the 55 witnesses called by the appellants to perhaps establish the allegations of undue election and return made by the appellants.
It is apposite to reproduce some excerpts from the judgment of the Tribunal concerning these 55 witnesses as follows:
?On the first point, that is the nature and implications of the evidence/

testimonies of PW1 to PW55. The PW1, Alhaji Mudashiru Sunmonu gave evidence as a voter on the day of the election. Under cross-examination by the 1st respondent?s counsel he said the election was conducted on 9/3/2019.
It thus follows that contrary to the election held on 23/2/2019, the witness gave evidence in respect of an election which he said was held on 9/3/2019. Also, he was neither a Polling Agent nor Collation Agent. It therefore follows that his testimony cannot be relied upon.
The evidence of the PW2-PW40 are not different from that of PW42-PW55. All of them gave evidence as Ward Supervisors for the Petitioners at their respective Wards and they equally admitted under cross-examination that the Party Agents who gave them the information are still alive. Most of these witnesses also admitted that their names were ticked on the Voters Registers as an evidence of accreditation contrary to the allegations.
Again, the PW41-45 and PW47 admitted under cross-examination that they were seeing their written Statement on Oath for the first time. Also, the PW43 told the Court that his written Statement on Oath was brought to his Office for

signature while the PW44 rejected his Statement on Oath in the Court because he said he never signed same.
All these witnesses have no business coming to the Court because they are not Polling Unit Agents or Collation Agents. None of the Presiding Officers in all the Polling Units in the Local Governments complained of was called as a witness. They are the ones who can testify to the genuineness? or otherwise of the results being contended i.e. Form EC8A (I). Failure to call them means the Petition must fail.
On the allegation of corrupt practices, the Tribunal said:
?In all the evidence led, the Petitioners failed to prove the allegation of electoral malpractice or corrupt practices which are criminal in nature. Also the Petitioners did not show that the 1st and 2nd respondents authorized the corrupt practices or electoral practices neither show that they would have won the election if there were no such corrupt practices. So the Tribunal holds that that ground of the petition in that respect fails.? In coming to this conclusion, the Tribunal relied on Section 135 (1) of the Evidence Act, 136 ? and the case of

Babalola v. Rufus (2010) (pt. 515) 309 and stated the criteria as follows:
(1) That the respondent who was elected personally committed the corrupt practices.
(2) That where the alleged act was committed through an agent, the said agent must have been authorized by the respondent.
(3) The corrupt practices affected the conduct and outcome of the election and how it affected it.
(4) The Petitioners must go further to prove that if not for the malpractice, he would have won the election.
In respect of documents tendered notably Forms EC8A(I), EC8B, EC8D from 11 Local Government Areas, the Tribunal observed evidence was led only in respect of 8 of 11 Local Governments and that a party relying on documents must relate the documents to specific areas of his case otherwise the Tribunal would discountenance such documents. Citing Audu v. INEC (2010) 12 NWLR (pt. 1212) 549 at 597 and Ucha v. Elechi (13 NWLR) 1317 330.
?In respect of such documents tendered the Tribunal held that it is only an eye witness who was present at the polling unit when the election was conducted and the agent who witnessed the collation exercise at the ward

collation centre can tie the document tendered to the pleadings citing Saidu & Anor v. Novo & Ors 2015 LPELR 40372 CA. In this case, none of the appellants 55 witnesses was either a Polling Unit Agent or Collation Agent who are the agents connected with the election as shown in Section 45 of the Electoral Act and in respect of the documents tendered, the Tribunal observed that only the makers of the documents or person who were present at the time the entries were made could be competent witness or else such evidence would be hearsay evidence.
The documents not having been impugned, they go to prove authoritatively that elections were held at the various polling stations and that the results were recorded in the statutory forms EC8A(I) and duly collated in EC8D (I) and that the evidence show substantial compliance with Section 139 (1) of the Electoral Act, 2010.
Against the background demonstrated by the Tribunal, that appellants were not able to prove the facts requisite for their success but that on the contrary, there was substantial compliance with the Electoral Act on the part of the 1st respondent.?
The above findings and holdings of the

trial Tribunal appear so axiomatic and direct as to raise the question; in what ways have the appellant faulted the judgment of the Tribunal?
Appellants Challenge
At paragraphs 4.04 and 4.05, the appellants? counsel argued thus:
?4.04. It is appropriate at this stage to state that the said witnesses were the Ward Agents of the 2nd Petitioner (ADC) within the Oyo Central Senatorial District, who gave evidence as PW2 to PW55, they all testified as to what they saw, the role they played on the election day and the state of irregularities that they witnessed on the face of the Certified True Copies of electoral materials ((EC8A(I), Form EC8D(I) used by the 3rd respondent?s officials for the elections of the 23rd of February, 2019 and which election produced the 1st and 2nd respondents as purported winners.”
4.05. The PW2 to PW55 testified viva voce and adopted their statements on oath. The statements on oath of the witnesses shows their testimony and evidence of having testified, tendered documents which were admitted as exhibits and demonstrated those documents and exhibits by way of tying them to specific paragraphs

mentioned in their statements on Oath. Throughout the cross-examination done by all the 3 respondents, the PW2 to PW55 remained unshaken and maintained their balance.”
Matched side by side with the observation of the Tribunal earlier reproduced concerning the evidence of PW2 ? PW55, it could be seen that the evidence of the 55 witnesses of the appellants have no probative value as the Tribunal found and upheld, so many of them even disavowed ?their? statements on Oath.
I have considered the testimony of the PW2-PW55 and I agree with the evaluation of the Tribunal concerning those witnesses.
In regards to the documentary evidence of Form EC8A (I), the Tribunal observed that there must be some nexus between the witnesses and the Forms EC8A (I) which they purported to tender either as the makers or as having participated in the entry or by observation. No such foundation was laid for these 55 witnesses. It therefore entailed that those forms enjoyed the presumptions of due regularity attaching to them, especially as the result they embodied were not shown by other evidence to be discredited.
?

However brilliant and prolix counsel?s address may be, it must be demonstrated in reference to the evidence led and need not be mere fanciful conjecture. Inspite of address of counsel, I have not seen its connection with the evidence led.

won the election if there were no such corrupt practices. So, the Tribunal held that the ground of the petition in that respect fails.?
The Tribunal went on to show that the appellant failed to prove the allegations of electoral malpractices as required by law.
Having failed to prove the essential elements of their petition, the lower Court was left without any option than to dismiss the petition as it did. This appeal arising from the decision of the Tribunal has not shown that the Tribunal misdirected itself on law or fact and so the judgment of the lower Court cannot be disturbed. Accordingly the appeal lacks merit and is dismissed.

As regards the cross appeal of the 2nd respondent challenging the ?locus standi? or qualification of the Petitioner/cross-respondent on the ground that she was not qualified to contest the election, I do not think this is a proper challenge or at best it is as collateral attack to bog down a busy Tribunal. If the cross appellant was serious about qualification, it should have raised the issue as a pre-election matter before a regular Court. In any event, it no longer arises as the petition of

the appellant is out and extinguished making further inquiry about qualification academic or hypothetical but for the avoidance of doubt, the cross appeal is without merit and is dismissed.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother NONYEREM OKORONKWO, JCA just delivered. I agree with my Lord’s reasoning and conclusion that both the Appeal and Cross Appeal lacks merit.
The Appeal and Cross Appeal are also dismissed by me.

FOLASADE AYODEJI OJO, J.C.A.: I had the opportunity of reading the draft of the Judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA and I cannot agree more that this appeal is lacking in merit. The facts of the Appellants’ case before the lower Tribunal have been set out adequately in the lead Judgment.

In its evaluation of the evidence on record, the lower Tribunal found amongst others that the testimony of Appellants’ witnesses PW2-PW55 was derived from information given to them by the party agents of the 2nd Appellant who were at the polling unit during the election. Furthermore, the Tribunal found that

the Appellants tendered documents from the bar but failed to call the makers to speak to them. It is settled law that allegations made in an election Petition which are civil in nature must be proved by preponderance of evidence. See UCHA & ANOR V. ELECHI & ORS (2012) 13 NWLR (PT. 1317)330; OMISORE & ANOR V AREGBESOLA & ORS (2015) 15 NWLR (PT. 1482)205; BUHARI V. OBASANJO (2005) 13 NWLR (PT. 941)1. The task before the lower Tribunal therefore include:
(i) looking into issues as joined by parties in order to determine which of the evidence is relevant to the determination of issues before it.
(ii) giving equal strength to the case of the parties and in the process avoid projecting the case of one party more than the other to prevent likelihood of bias.
(iii) ensuring that any evidence believed by the Tribunal is put on the imaginary scale. Any evidence that is disbelieved is automatically repelled by the imaginary scale and a consideration of the demeanour of the witnesses is also relevant.
?(iv) undertaking a consideration of the provisions of the Evidence Act. In so doing any evidence which violates the

provisions of the Evidence Act must be rejected or expunged from the record.
See BUHARI V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) 19 NWLR (PT. 1120)246; CHANGE FOR PROGRESSIVE CONGRESS V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2011) 18 NWLR (PT. 1279)493; EZEMBA V IBENEME & ANOR- (2004) 14 NWLR (PT. 894)617.
I have gone through the submissions made on behalf of the Appellants in the Appellants’ Brief of Argument and I am of the firm view that the attempt of Appellants’ Counsel to fault the findings and conclusion of the lower Tribunal in its Judgment is not supported by the record. The Tribunal rightly refused to ascribe probative value to hearsay evidence adduced by Appellants’ witnesses in accordance with the provisions of the Evidence Act, 2011. I agree with my learned brother that the Appellants failed to rebut the presumption of regularity which enures in favour of the election results contained in Form EC8(I) tendered in evidence before the lower Tribunal.

?It is for the above and the fuller reasons advanced in the lead Judgment that I also find no merit in this appeal and it is dismissed by me. I also dismiss the cross appeal.

Appearances:

Kazeem A. Gbadamosi with him, Ibrahim Kareem-Ojo, Kazeem A. Adedeji and Peter Adeosun for Appellant/Cross Respondent
For Appellant(s)

Tunde Falola with him, Yemisi Perera for 1st Respondent.
Michael F. Lana with him, T.A. Adebayo, B. Akinola, T. Ayankoya, F. Fagbemi and A. Isete for the 2nd Respondent/Cross-Appellant.
Dr. K.U.K. Ekwueme with him, Temidayo Alade for the 3rd RespondentFor Respondent(s)

Appearances

Kazeem A. Gbadamosi with him, Ibrahim Kareem-Ojo, Kazeem A. Adedeji and Peter Adeosun for Appellant/Cross RespondentFor Appellant

AND