UTAAN TERHIDE CONRAD & ANOR v. BENJAMIN MZONDU BEM & ORS
(2019)LCN/13840(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/MK/EP/HR/36/2019
RATIO
EVIDENCE: THERE IS A DIFFERENCE BETWEEN THE ADMISSIBILTY OF A DOCUMENT AND THE VALUE ATTACHED TO IT
There is a difference between admissibility of a document and the value to be attached to it. See Belgore V Ahmed (2013) 8 NWLR (Pt. 1355) 60 and Okereke V Umahi (2016) 11 NWLR (Pt. 1524) 438.
PER JOSEPH EYO EKANEM, J.C.A.
COURT DETERMINING THE PROBATIVE VALUE OF A DOCUMENT WITHOUT CALLING FOR ADDRESS FROM COUNSEL
A Court is perfectly entitled to look at a document that is properly placed before it to determine its probative value without the need to call for addresses from counsel. See Arabambi V Advance Beverages Industry Ltd (2005) 19 NWLR (Pt. 959) 1, 29. PER JOSEPH EYO EKANEM, J.C.A.
Whether the Tribunal was right in striking out ground one of the petition and all paragraphs (of the petition) in support of the said ground.
Section 138(1)(b) and (2) of the Electoral Act 2010 (as amended) provides:
(1) An election may be questioned on any of the following grounds, that is to say:
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of the Act shall not of itself be a ground for questioning the election. PER JOSEPH EYO EKANEM, J.C.A.
ELECTION PETITION: UNDER WHAT GROUND IN THE ELCTORAL ACT CAN A PETITIONER QUESTION AN ELECTION- SECTION 145(1) OF THE ACT
In Ojukwu V Yar’Adua (2009) 11 NWLR (Pt. 1154) 50, 121, Tobi, JSC, stated as follows:
A petitioner is required to question an election on any of the grounds in Section 145(1) of the Act. He is expected to copy the Section 145(1) grounds word for word. I think a petitioner can also use his own language to convey the exact meaning and purport of the subsection. In the alternative situation, a petitioner cannot go outside the ambit of Section 145(1) of the Act. In other words he cannot add to or subtract from the provision of Section 145(1). In order to be on the safe side, the ideal thing is to copy the appropriate ground or grounds as in the subsection. A petitioner who decides to use his own language has the freedom to do so but he should realise that he is taking a big gamble, if not a big risk.” PER JOSEPH EYO EKANEM, J.C.A.
WHAT HAPPENS TO EVIDENCE OF A FACT NOT PLEADED
The law is that evidence of a fact not pleaded goes to no issue and is irrelevant. See Ogiamien v Ogiamien (1967) NMLR 345 and Emegokwue v Okadigbo (197) 4 SC 113. PER JOSEPH EYO EKANEM, J.C.A.
WHEN THERE IS A PRESUMPTION OF CORRECTNESS IN EVIDENCE, WHOSE DUTY IS IT TO REBUT IT
There is a presumption of the authenticity and correctness of the return and the burden was on the appellants to lead evidence to rebut that presumption. In Buhari v Obasanjo (2005) 13 NWLR (Pt.941) 1, 223, Ejiwunmi, JSC stated the law thus;
In Omoboriowo v Ajasin (1984) 1 SCNLR, this Court again said at page 122 as follows;
Now as I stated in Nwobodo v Onoh (supra), there is in law a rebuttable presumption that the result of any election declared by the Returning Officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. Where such denial is based on a mere complaint that the petitioner scored a majority of lawful votes the rebuttal needs only to be proved within the balance of probability.
See Buhari v Obasanjo supra. 122. PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES:
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1.UTAAN TERHIDE CONRAD
2.ALL PROGRESSIVES CONGRESS (APC) – Appellant(s)
AND
1.BENJAMIN MZONDU BEM
2.PEOPLES DEMOCRATIC PARTY (PDP)
3.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National and State Houses of Assembly Election Petition Tribunal, Makurdi, delivered on 1/9/2019 in Petition No. EPT/BN/R/11/2019. In the judgment, the Tribunal dismissed the petition which questioned the return of the 1st respondent as the winner of the election held on 23/2/2019 for the seat of Member of House of Representatives, Makurdi/Guma Federal Constituency.
On 23/9/2019, the 3rd respondent conducted elections throughout Nigeria for seats in the House of Representatives. In Benue State, the 1st appellant sponsored by the 2nd appellant contested the election against 9 other candidates who were sponsored by their respective political parties. The 1st respondent contested the election on the platform of the 2nd respondent. At the end of the election, the 3rd respondent returned the 1st respondent as the winner, he having polled a total of 50, 454 votes as against the 1st appellant who was the runner up with 37, 743 votes.
Aggrieved by the return, the appellants filed a petition at the Tribunal questioning the same.
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They claimed the following reliefs:
(a) A DECLARATION that the return of the 1st Respondent was unlawful as the 1st Respondent did not win the Makurdi/Guma Federal Constituency election by the majority of the lawful votes cast at the election.
(b) A DECLARATION that the Makurdi/Guma Federal Constituency election held on the 23rd day of February, 2019 in all the polling units in Kambe, Nzorov and Saghev Council Wards of Guma Local Government Area having been marred by intimidation, harassment of voters, irregularities is not in compliance with the Electoral Act, 2010 (As amended), Guidelines for the Conduct of Election and the Manual for Election Officials 2019, is therefore void.
OR
(c) A DECLARATION that the Makurdi/Guma Federal Constituency election held on the 23rd day of February, 2019 in 42 polling units or such other number of polling units in Fiidi, Bar, Modern Market Central/South Mission and Wailomayo Council Wards in Makurdi Local Government Area having been marred by irregularities and non-compliance with the Electoral Act, 2010 (as amended). Guidelines for the Conduct of Election and the Manual for Election Officials 2019,
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are therefore void.
(a) A DECLARATION that the 1st and 2nd Respondent did not score the majority of lawful votes cast at the Makurdi/Guma House of Representative Election which held on the 23rd February, 2019.
(b) A DECLARATION that the declaration and return of the 1st Respondent as the winner of the election was unlawful as same was not in compliance with the provision of 1999 Constitution (as amended), the Electoral Act, 2010 (as amended), Regulations and Guidelines for the conduct of Election and Manual for Election Officials, 2019.
(c) AN ORDER of this Honourable Tribunal setting aside the declaration and return of the Respondent as the winner of the Makurdi/Guma Federal Constituency election held on the 23rd day of February, 2019 but declared on the 26th day of February, 2019.
(d) AN ORDER of this Honourable Tribunal withdrawing the Certificate Return issued to the 1st Respondent as the winner of the Makurdi/Guma Federal Constituency election held on the 23rd day of February, 2019.
(e) A DECLARATION of this honourable Tribunal that the 1st Petitioner was duly elected by the majority of lawful votes cast at the Makurdi/Guma Federal
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Constituency election held on the 23rd day of February, 2019 and ought to have been return as the winner.
(f) A DECLARATION that the 1st petitioner was the winner at the Makurdi/Guma Federal Constituency elections held on the 23rd day of February, 2019 having scored the majority of the l
