SIR. NZE CASMIR NWABUEZE OJUKWU & ANOR v. PRINCE OBINNA OKWARA & ORS
(2019)LCN/13839(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/OW/EPT/SHA/53/2019
RATIO
MEANING OF OR IN SECTION 4(5) OF THE ELECTORAL ACT 2010
This is because, a consideration and determination of the same would inure, no profit to the parties, as it appears to be an academic exercise. Even if we hold that the tribunal was wrong in the determination of the Word ?OR? as used by the drafters of the Paragraph 4(5) (c) of the 1st Schedule to the Electoral Act, 2010, as amended, it will not change anything, as the time, to hear the Petition, on the merit, has run out by effuxion of time in view of Section 285(10) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, which allows maximum of 180 days for the determination of election Petition, from the date of declaration of the result of the election, and the said 180 days have since expired. See the CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; (2011) LPELR ? 8257 (SC); Ugba Vs Suswan (2012) LPELR ? 9726 SC; PDP VS INEC & Ors (2014) LPELR ? 2380 (SC). And the stipulated time frame cannot be shifted or extended. Thus, a decision that the Tribunal was wrong not to read/interpret the Word ?OR? disjointly or disjunctively, to portray alternative option will not cause the case to succeed as this Court cannot order a retrial, if it sets aside that order striking out the Petition. PER ITA GEORGE MBABA, J.C.A.
EVIDENTIAL BURDEN IN CRIMINAL LAW: HE WHO ASSERTS MUST PROVE BEYOND REASONABLE DOUBT
Even if there was any such alleged violence and other criminal acts, the law requires the person alleging same to prove same beyond reasonable doubt and to show that the said violence and criminal acts, substantially affected the outcome of the election, and to link the same to the opponent, that he caused the said criminal acts or sponsored same. See the case of ANPP & Anor Vs Usman & Ors (2008) LPELR ? 3786 CA; Wali Vs Bafarawa (2004) 16 NWLR (pt.899) 1 at 44. PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. SIR. NZE CASMIR NWABUEZE OJUKWU
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. PRINCE OBINNA OKWARA
2. ACTION ALLIANCE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (1NEC)
4. RETURNING OFFICER, NKWERRE LOCAL GOVERNMENT STATE CONSTITUENCY Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the leading Judgment): By virtue of the judgment of the Imo State National and State House of Assembly Election Petition Tribunal (the Tribunal) delivered on 12th September, 2019, wherein the Tribunal dismissed the Petition filed by the Petitioners (now Appellants), Appellants filed this Appeal, as per the Notice of Appeal, filed on 23/9/2019.
Appellants (as Petitioners) had filed a Petition No. EPT/NASS/SHA/IM/31/2019 on 29/3/2019, challenging the declaration/result of the Nkwerre Local Government Area State Constituency, State House of Assembly, held on 9th March, 2019. At the end of the Election, Independent National Electoral Commission (INEC) had declared 1st Respondent (who was sponsored by 2nd Respondent (Action Alliance) winner of the Election.
The 1st Appellant was sponsored by the 2nd Appellant (Peoples Democratic Party) at the said Election. In the Petition, Appellants had stated the grounds of the Petition as follows:
(1) That the election of the 1st Respondent was invalid by reason of the non-compliance with the provisions of the Electoral Act, 2010 as amended which made the entire
1
election process unconstitutional and void.
?(2) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
Appellants had pleaded that the election of 9/3/19 was marred by violence, massive rigging, voters disenfranchisement, and that thugs and people in military uniforms invaded the polling units and wards, carted away voting materials and so the return of the 1st Respondent was wrongful and invalid, by reason of the fact that the 1st Respondent did not poll the majority of lawful valid votes cast at the election. The Respondents had filed Replies to deny the Petition.
?Appellants added that no election took place in any ward of the Nkwerre Local Government Area State Constituency for the election of 9th March, 2019, because the process was marred by monumental violence and disturbance, there was the killing of the 2nd Petitioner?s/Appellants? agent named Mr. Eric Elechi at Umuaro Polling Unit of Umudi/Umuwala Ward of Nkwerre Local Government Area State Constituency; that the said Eric Elechi was killed by persons acting for the 1st and 2nd Respondents and the killing caused general pandemonium and
2
disturbance across the entire Local Government Area State Constituency, resulting in the abortion of voting process in all the wards of Nkwerre Local Government Area State Constituency; that the killing and disturbances affected accreditation and also resulted in non-availability of electoral materials especially in Umudi/Umuawala, Onusa Nkwerre Nnanano, Umukor, Owerre Nkworji and Eziama Obaire Wards.
In proof of the Petition, Appellants called 8 Witnesses and tendered exhibits. The 1st and 2nd Respondents called a total of 8 Witnesses too, but the 3rd and 4th Respondents called no witness/evidence, even though they had filed their Reply to the Petition. At the close of the hearing and consideration of the evidence and addresses of Counsel, the Tribunal dismissed the Petition, saying that the Petitioners (Appellants) failed woefully to prove their case.
Appellants filed Notice and grounds of Appeal on 23/9/2019 ? Pages 557 to 566 of the Records of Appeal. Appellants filed their brief on 8/10/19 and distilled three (3) Issues for the determination of the Appeal, as follows:
(1) Whether the election Petition Tribunal below breached
3
the Appellants? right to fair hearing, when it refused to consider the Authority of the case of Dingyadi Vs Wamako (2010) 6 EPR 336, cited to it by the Appellants? Counsel on the legal effect of reference to a document in a pleading. (Ground 1)
(2) Whether the Tribunal below for its judgment, properly evaluated the evidence adduced before it. (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13)
(3) Was (sic) the Appellants denied fair hearing by the non-consideration of the alternative relief in the Petition.
The 1st and 2nd Respondents filed their Brief on 15/10/19 and donated two (2) Issues for the determination of the Appeal, as follows:
(1) Whether the striking out of the petition made by the Honourable tribunal as a result of the incompetence of the petition was not proper (Ground 1)
(2) Whether the Election Petition Tribunal duly considered the case of the parties and came to a proper decision (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13).
?The 3rd and 4th Respondents filed their brief on 22/6/19 and brought application for extension of time to file it, out of time. Of course, the motion was struck out,
4
together with the brief, being strange to election proceedings, which is time bound and makes no provision for filing of processes outside the stipulated time allowed parties for filing same. See the case of Ebun & Anor Vs Diya & Ors (2015) LPELR ? 40887 CA; Ikoro Vs Izunaso & Ors (2008) LPELR ? 4302 CA; Onochie Vs Odogwu (2006) SCNJ 24.
Arguing the Appeal on 23/10/2019, Learned Counsel for Appellants, Chief Henry Akunebu (who settled the brief), on Issue one, relied on Paragraph 4(5) (c) of the Schedule to the Electoral Act, 2010, as amended 2015 to say that it is very clear and unambiguous as it provides, thus:
?The election petition shall be accompanied by:
(a) Copies or list of very document to be relied on at the hearing of the Petition.”
Counsel submitted that, where the language of a statute is plain and unambiguous, its simple grammatical meaning is to be ascribed to the plain provision of the statute. He said that the word ?or? as used by the drafters of Paragraph 4(5)(c) of the 1st Schedule to the Electoral Act, 2010, clearly means an alternative and in the circumstance, that
5
it cannot be expected of the Petitioners/Appellants to list a document and at the same time attach the said document as the statute, as general operationality of Paragraph 4(5) (c) of the 1st Schedule to the Electoral Act has made it operational for a Petitioner to either attach the document he relies on or list same. He relied on Goyol Vs INEC (No.2) (2012) 11 NWLR (Pt.1311) 218 at 230.
Counsel said, in the circumstances, the Tribunal holding was wrong, when it said ?the Petitioners also filed list of documents and again failed to attach the summary of result. Counsel said that the above cannot represent the proper interpretation of the Paragraph 4(5)(1) (c) of the 1st Schedule to the Electoral Act, as the use of the word ?or? has made the attachment of the documents, optional; that in the instant case, the Petitioners had listed the document they intended to rely on, which included the summary result fictitiously made up by 3rd Respondent, when there was indeed no election in Nkwerre Local Government Area State constituency, due to violence. He said that Appellant scored votes as shown in the said summary result, and that they had
6
referred to the summary result of the election of 9/3/19 for the Nkwerre Local Govt. Area State Constituency, showing the fictitious scores.
Counsel relied on the case of LSDPC Vs Adeyemi Bero (2005)8 NWLR (Pt.927) 330 at 352 as to the power of the Court to set aside its own previous null and void decision be it on procedural matters or substantive law touching on interpretation of statute. He relied on the case of Waghoreghor Vs Aghenghen (1974) 1 SC1; Akporue Vs Okei (1973) 12 SC 137; Koden Vs Shidon (1998)10 NWLR (Pt.571)13 NWLR (Pt.633)116 and Odofin Vs Olabanji (1996)2 NWLR (Pt.435) 126. Counsel said that the error of wrong interpretation of statute is so grievous that the said decision arising therefrom is void, and the same Court that made the wrong interpretation can set it aside, and so this Court cannot shut it eyes to the wrong decision and can equally set it aside. He relied on the case of Dingyadi Vs Wamako (2010) 6 EPR 336 in this Court, which Appellants said was cited to the Tribunal but was not considered. It held:
?Any document referred to in a pleading becomes part of the pleading. The pleadings and the document cannot be separated
7
by the Court and the law does not so permit.?
Counsel said that the failure of the Tribunal to consider the case of Dingyadi Vs Wamako (supra) amounted to denial of fair hearing to the Petitioners, and the decision reached is liable to be set aside. He relied on Olowolaramo Vs Umechukwu (2003) 2 NWLR (Pt.805) 557; Brawal Shipping Nig Ltd Vs F.L. Onwadiko Co. Ltd (2000) 11 NWLR (Pt.078)387 on the need to adhere to the rules of judicial precedent.
Counsel said the tribunal exercised its discretion wrongly, when it used the preliminary objection to strike out the Petition and refused to consider the merits of the case, given the serious issues raised, including the fact that one Eric Elechi was killed at the election centre, with a ripple effect seen in the escalation of violence at the election. Counsel said that Paragraph 4 (7) (sic) of 1st Schedule upon which the preliminary objection was predicated uses the word MAY – that ?An election petition, which does not comply with the provision of sub paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the tribunal/or Court! He said that
8
left the decision at the discretion of the Tribunal, relying on the case of Anozie Vs Obichere (2004)1 EPE P.418.
On issue 2 whether the Tribunal?s judgment properly evaluated the evidence adduced before it, Counsel answered in the negative. Counsel said the PW1 (a legal practitioner) had adopted his statement on oath and also testified orally, and said that there was no election in polling units 3 in Onusa Nkwerre Ward and that he supervised other polling units in the Ward and that there was no election too; that PW2 adopted his statement, gave evidence that, he was beaten up in his polling unit 009 and that the election was not successful; that PW3 also adopted his statement on oath and recounted tales of violence in his ward, and that there was no election in unit 6 of Amaokpa ward; he said that PW3, 4, 5, 6, 7 and 8, each had similar stories of violence or absence of accreditation in their wards which resulted in no election in the said wards. Counsel relied on the documents tendered, including the police report ? Exhibit 3WA8; Death certificate of Eric Elechi and burial certificate ? Exhibit BW81-3; summary result of Nkwerre Local
9
Government Area State constituency ? Exhibit BW8B.
He said that the common thread in all their evidence was that there was no election on 9/3/19, arising from the various acts of violence and irregularities as recounted by the witnesses; he said that the Police report ? Exhibit BW8B, which confirmed the death of Eric Elechi (a polling agent for Umuaro Polling unit on the election day poigna
