Hon. Jessie Balonwu V. Senator Joy Emordi & Ors (2009)
LawGlobal-Hub Lead Judgment Report
VICTOR A. O. OMAGE, J.C.A,
This is an appeal against the judgment of the panel, which sat on the Governorship Legislative Houses of Assembly Election Petition Tribunal, at Awka, Anambra State in Petition No. EPT/AN/NAE/SE/9/2007 on the Petition of Hon. Jessie Balonwu against Senator Joy Emordi and Others. The judgment was delivered on 17th June, 2008 Coram J.S Abiriyi and four others Judges on 14th June, 2008. The Tribunal dismissed the petition of the Petitioner, for election to the seat of Senator to the Senate on the Anambra North Senatorial District.
The petitioner was dissatisfied with the decision of the Tribunal and she has appealed to this Court. The petitioner deposed that the election was scheduled to take place on 21/4/2007, but did not hold, and the election was consequently purported to hold on 28 April, 2007.
The Petitioner contested the election on the platform of the Labour Party while the 1st Respondent contested on the platform of the Peoples Democratic Party.
In the petition filed against the declaration and return of the 1st respondent, the petitioner complained:-
(a) That no election took place in Anambra North Senatorial District in accordance with the provision of the Electoral Act, 2006.
(b) The Electoral Materials were not made available at the polling Unit by the supervisory presiding officer charged with the distribution of materials.
(c) Though in Anambra State Senatorial Areas, the seven Local Government Areas, where INEC has 7 polling agents and party agents. No election materials were alleged to have been delivered to the seven areas, these include result sheet, voters registers etc.
Consequently, no election took place at the polling units. No oath of neutrality was taken by 2nd to 213 respondents.
That the voters’ register was not displayed during the election of 28/4/2007 and that some of the irregularities were captured on video tapes.
(i) Whereof the petitioner prays that it may be determined that the 1st respondent was not duly elected and returned as a member of the National Assembly representing Anambra North Senatorial District in the National Assembly.
(ii) The election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2006 which substantially infected and affected the purported return of the 1st respondent. The Petitioner therefore prays that the election of the 1st Respondent be nullified that the 2nd – 3rd respondents be ordered by the Tribunal to conduct fresh election in the Anambra North Senatorial District of Anambra State in accordance with the provision of the Electoral Act, 2006. In the proof of the allegation in the petition, the petitioner declared that she filed a list of witnesses in accordance with the Practice Direction, 2006, a list of witnesses, written deposition of witnesses on oaths who made their depositions on oath and a list of documents to be relied on at the hearing.
At the pre trial conferences, the following two issues were set down for hearing and determination namely: –
“(i) Whether the election of 28th April, 2007 in the Anambra State, Senatorial District was conducted in substantial compliance with the Electoral Act, 2006.
(ii) Whether the 1st respondent was duly returned as the winner of the said election.”
The petitioner/Appellant called 27 witnesses, and the Appellant testified as PW 27. The appellant produced certified true copy of Video tapes of the N.T.A, and Anambra State Broadcasting Service A.B.S. Each of the parties in the appeal called evidence from witnesses thus 1st Respondent 14; 2nd – 213 Respondents 4.
On the issue for determination 1 above, the appellant formulated the issues as follows:-
(1) Whether the Tribunal was right to hold that the presiding officers were necessary parties who ought to have been joined as parties in the petition of the appellant.
(2) Whether the Tribunal was not wrong in disbelieving the appellant and the witnesses that there was no distribution of election materials and that the appropriate and relevant result sheet in the senatorial election of 28/4/2007 for Anambra North Senatorial District were not used in the conduct of the election.
(3) Whether the Tribunal is not wrong when it held that the election of 28/4/2007 was not marred by irregularity and ought not to be nullified notwithstanding that the Forms EC 25A tendered by the Respondents are without voters’ registers which the appellant stated was not supplied in the election of28/4/2007.
(4) Whether the Video tapes tendered as exhibits PPP 29 and PPP 30 which were public documents had no probative value as exhibits were not tendered by the makers
(5) Did the rejection of photo copies certified true copies of the voters registers and the voters’ card of the appellant and appellant’s witness or their exclusion by the Tribunal which led to the finding that PW18, PW24 and PW23 and PW1. PW17 did not tender their voters’ card nor voters’ register and the evidence of PW 2, PW 4, PW 6, PW 8, and PW 22 (were) bare testimony not led to a miscarriage of justice having regard to the importance of voters’ register and the voters’ card to the success of the appellant’s case.
(6) Was the Tribunal not wrong in admitting the voters card of the Respondents as exhibit relying on same and hold that election took place on 28/4/2007.
(7) Whether the appellant failed to discharge the burden of proof placed on the appellant to prove the non compliance complained of by the appellant.”
The 1st respondent formulated from the grounds of appeal the following as issues for determination: –
(1) Whether the tribunal was correct in its opinion that the presiding officer whose names appeared on the result sheets said to be forged ought to have been joined in the petition and if not did that opinion occasion a miscarriage of justice.
(2) Whether the tribunal was correct in holding that the appellant did not by cogent and convincing evidence establish that the election materials were not distributed by INEC to the places designated for the election. (3) Whether the tribunal was correct in its approach to the evidential value of exhibit PPP29, and 30 being video tapes tendered by the person who did not record them and who were not even examined concerning the circumstance the tapes were made.
(4) Whether based on the pleadings and evidence led in the case, the tribunal was correct in holding that the appellant did not establish her allegation against the results produced at the election by the requisite method required in election petition.
(5) Whether the tribunal was correct in holding that the appellant failed to establish the allegations of non compliance contained in the petition and their effect thereof.
(6) Whether the tribunal was correct to have relied on the evidence of DW 14, and DW 17 despite its rejection of the evidence of DW 16.
(7) Whether the tribunal was correct in rejecting the photo copies of purported voters register sought to be tendered by the appellant given the circumstance of the case.
(8) Whether the tribunal was correct in allowing evidence to be led through cross examination by the Respondents.”
The 2nd – 213th Respondents also filed their brief, and formulated the following issues for determination:-
(1) Was the Court below right in rejecting the photocopies of certified true copies of the voters register tendered by the petitioner in the proceedings?
(2) Was the Court below right in holding that the appellant did not prove his criminal allegations? (3) Was the Court below right when it holds that the presiding office ought to have been made parties to his petition?
(4) Was the Court below right in disbelieving the petitioner appellant and her witness that election materials including result sheets and voters registers were not distributed on the day of the Election?
(5) Was the Court below right when it relied on his case of Nnaji v. Agbo 2 EPR, 867 (ii) Onoyom v. Egari (1999) 5 NWLR, (Part 603) 116, (ii) Awuse v. Odili 203 18 NWLR 851 116 in holding that the presumption of regularity in Section 150 Evident Act applied in favour of the result sheets and non tendering of voters card were fatal to the case of the appellant.
(6) Was the Court below right in upholding the election of the 1st respondent; despite the rejection of the evidence of DW16 and place reliance on the evidence of the other respondent witnesses?
(7) Did the Petitioner make out a case of non-compliance with the provisions of the Electoral Act, 2006
(8) Whether the Court below was not right in not nullifying the election of the 1st respondent on the bases of exhibit PPP 29 and PPP 307
The appellant filed reply to the issues formulated in the brief of the 1st respondent and to those in the 2nd – 213th respondents. The reply of the appellant not reply at all appears to me to be a rehash of the arguments contained in the appellant’s brief. After reading both, I am of the view that much time will be saved, and energy consumed if concentration is placed on the averments first contained in the appellant’s brief. In this respect I wish to give a direct response to the formulation and proposition made in the submission of the 2nd – 213th respondents when in issues one to 1 – 6, and 8, in the said response they asked above the recited questions. The answer to the proposition made by the Respondents, whether the court below was right in each case is yes, indeed a capital Yes. The Court below was right to reject the photocopies of certified true copies of the voters register tendered by the Petitioner/Appellant. See Section 97 of the Evidence Act; since the original document of the voters register is in writing and within reach of the appellant. A photocopy of voters register is clearly inadequate. See also Ministry of Lands Western Nigeria v. Azikiwe and Others (1969) 6 NSCC 31. Certified true copy is admissible not photocopies of it. Yes, to issue 2 formulated by the Respondents, because the allegations made by the appellant are of a criminal nature which require proof beyond reasonable doubt; not just ipse dixit, Yes to issue 3, the reason is as I will expatiate what I determine the issue with the 1st respondent. However, presiding officers ought to be joined in the proceedings. It is fatal to the petition not to join presiding officers.
In reply to issue 1 Yes, the Court below was right to disbelieve the appellant and the witnesses when they depose that election materials were not distributed. The testimonies of the appellant and the witnesses fail to offset the legal presumption of regularity made in an election properly conducted. See Section 150 Evidence Act. See also section 44(3) of the Electoral Act in the duty of the polling agents. The election was properly conducted.
Yes the Court below was right to uphold the election of the 1st respondent. The rejection of the evidence of 16 DW notwithstanding. The candidate’s evidence of the other defence witnesses are sufficient to vindicate the defence of the Respondent. Yes to issue 7 because like in issue 2, the appellant failed to make out a case 0f non-compliance with the provisions of the Electoral Act, 2006. The contradictory evidence of the appellant witnesses fails to discharge the onus of proof that there was no compliance with the Electoral Act, 2006.
In response to issue 8 in the brief of the 2nd – 213th respondents, the Court would have been wrong to nullify the election of the 1st respondent and the Court below was right to refuse to nullify the election 0f the 1st respondent, because the appellant is not entitled to succeed in the petition without the joinder of presiding officers. On this failure to join the presiding officers, the petitioner should fail further comment of this is contained in the consideration of the appellant’s case against the 1st respondent later in this judgment. The second major reason why the petition should fail is the testimony of the appellant against his case, when she had said electoral materials were not distributed yet deposed further through witnesses in the evidence that the appropriate result sheets were not used. There was therefore an election held on 28/4/2007 and result sheets were distributed; by presiding officers. Why were the presiding officer not joined, the answer will be that they would have spoken the truth, and the falsity of petitioner would have been revealed. The parties’ failure to join the presiding officers is fatal to the petition of the appellant, See Section 144 Electoral Act, 2006. In respect of the appellant’s claim against the 1st respondent.
I now wish to consider the claim against the 1st respondent.
In this appeal, the issues to be determined are contained by the appellant on pages 9 to 12, of the appellant’s brief which I have condensed unto three major issues and the Respondents’ issues are condensed to four and will in this appeal take issue one of the Appellant with issue one of the Respondents to determine the appeal. For the sake of clarity, I have condensed in the appellant’s brief, issues 2, 3, 4, 5, and 6 as issues 2, which all will be taken with issues 2, 3, 4, 5, 6, 7 as issue 2, and the 1st respondent issues because in the cases of parties, Appellant, 1st Respondent and 2nd – 213th Respondents, the condensed issues deal with the submission by the appellant and denial of it by 1st respondent and 2nd – 23rd respondents of such evidence where appropriate and outright rejection by respondents of this evidence.
In issue, the petitioner asked whether the Tribunal was right when the Tribunal held that the presiding officers were necessary parties who ought to have been found as parties in the election petition by the appellant; and the Respondents on his issue, one asked if the tribunal was correct when the tribunal ruled that the presiding officer ought to have been joined in action in court which is subsequent to the election.
The Petitioner/ Appellant in his brief has submitted that election materials and electoral papers were not submitted by the supervisory electoral officers to the supervising officer so the later had no electoral materials to give to the presiding officer. It is for this reason among others that the petitioner through the witnesses soon to be identified deposed that “the election scheduled on 28th April, 2007 instead of 21/4/2007when election took place throughout the federation; did not hold and averred that even the purported election which took place on 28/4/2007 is not in substantial compliance with the provisions of the Electoral Act, 2006”, That statement by itself is contradictory; it is quoted from the petition of the appellant.
In the record of proceedings before the tribunal, the petitioner condensed the testimonies of PW1; Christopher Okamelu PW2, Ngozi Ezegolu; PW 3, Harrison PW 4, Paul Obidimma, Sunday Okafor PW 5, PW 6 Ikegbunam Onumudiajo PW 7, Okor Okezu PW8, Obi Odibi PW9, Christopher Okoro, Joy Okafor PW11, Simon Onuorah DW12 Uzochukwu Beluchukwu PW13, Augustin Ejiobi PW14, Peter Morbu PW15, Okwudili Egurulu PW16, Izukanna Uhamiha PW22 Michael Okoro PW23, Simon Okafor, PW24, Emmanuel Chinezu PW25. Joy Essien of the NTA PW26 Juliet Anesili PW27 the appellant who tendered exhibit NTA video tape, (ii) ABS video tape, (iii) Website through some witness, particularly PW27 admitted before the Tribunal that PPP 29, 30 and 31; does not reflect what she earlier saw, that it was altered.
All the witnesses for the petitioner deposed that election did not take place at all failed to state the affected poling unit. In fact PW 2, in cross examination reading from the record of proceedings contradicted himself and said she was not at the ward collation centre between the hours of7 – 7.30 A.M. The question, which arises, is this if there was no election held on 28/4/2007, which collation centre was she absent at between 7 a.m. – 7.30 a.m. and would there be a collation centre? To which she admitted she was absent at the scene on the day between 7 and 7.30 a.m. PW3, who claimed to be an agent and tendered exhibit PP3, never stated which ward she was an agent. The same witness who said no result sheet was issued also said what was issued was not the correct result sheet. Question which arise is the in appropriate result sheet issued, by supervising officer? Or under the direction of the Presiding officer? The latter was not cited as a party in the proceedings at the Court below.
PW 4 could not state what polling unit he claimed to be an agent at. PW5 said he worked on election day on 28/4/2007. If there was no election on that day, where did he work and to who did he teder his agency card in which ward, PW 5 claimed to work on the day of election as ward collation agent, the appellant alleged there was no election on 28/4/2007, where did Ileglum P Omundy work as a polling agent. These inadequacies point only to false evidence presented by the appellant’s witnesses which the lower Court could not rely on upon which basis the petition was dismissed.
PW7 Okezie tendered his card but never stated which polling unit he attempted to vote. The record show that there is clearly 203 Polling Units in Ogbaru Local Government.
PW 8 was an illiterate – Obi Odibe, the statement he allegedly made had no jurat. It makes the statement unacceptable and worthless.
PW9 is remarkable for being a professional witness for the highest fee, the agitating issue is why should a genuine claimant need a professional witness except presented to tell a lie at the Tribunal, can any value be attached to such testimony. Surely not.
PW 10 also failed to state the unit where she purportedly voted.
PW11, the contents of this witness in his adopted deposition is contradictory to the purported letter of appointment tendered when he said he waited at Umueze when he in fact is from Awhuez’u Local Government. His statement on oath is unreliable so held the Tribunal. 1have no basis or reason to hold otherwise.
The video tendered by the appellant as PP 29, 30, 31, the appellant virtually disowned the tapes saying the video tapes had been altered, and that what was shown was different from what she presented. Consequently, as the members of the tribunal had the opportunity of seeing the person who gave the evidence and their cross examination on the two issues mentioned in this issue one (1)(a. That no election took place on 28/4/2007 (ii) Whether or not it was right for the petitioner not to join the presiding officer. The appellant had joined not the presiding officer in her petition but the supervising officer on the allegation that the supervising officer did not supply electoral materials to the Presiding Officer. It is the submission of the 1st respondent echoed by the supporting testimony of the 4th witnesses of the 2nd – 213th respondents that election did take place on 28/4/2007 and what is more the testimonies of some of appellant’s witnesses tangentially support that there was election on 28/4/2007, and that electoral documents were issued by presiding officers. The election therefore was in substantial compliance with 2006 Electoral Law.
It is the expressed opinion of my learned brother Obadina, J.C.A, that a presiding officer in an election is like a managing director or a chief executive of a company. Without his presence an election is faulty. In this case presiding officers were present. In this respect except for DW16, the testimonies of respondents’ witnesses are credible and reliable and the court below expressed satisfaction with same and admitted them in preference to witnesses of the appellants. Speaking of the necessity of joinders of the Presiding officer, because of the enormous power conferred.
On the Presiding officer he can not be excluded from culpability for any default in an election conducted under the provisions of 2006 Electoral Law. See Kallamu vs. Gurin (2003) 16 NWLR (Part 849) 493. See also the observation of the Court of Appeal in Jos, i was in the panel, in Harruna v. Modibo (2004) 16 NWLR (Part 900) p. 847 at 537. An election petition is said to be Sui generis. It is neither a civil nor a criminal proceedings any slight default in compliance with the prescribed rules of the Electoral Act will be fatal to the petition. See Awuse v. Odili (2004) 8, NWLR (Part 876) at 509. Similar slight in complying with a civil or criminal proceedings may have been curable or rectified by amendment in the proceedings. It is not so in an election petition. An election petition must adhere strictly, very strictly to rules as provided in Electoral Act, and the body of Law in particularly the rules of natural justice of fair hearing which is enshrined in our 1999 Constitution.
It is for the above reasons that I reiterate the provisions that “the presiding officer or any other who took part in the conduct of the election, such person for the purpose of the Act shall be joined in election petition. See Subsection (144) and 2 of Electoral Act, 2006, on the requirement of the law when it used the word shall which is mandatory. Failure therefore to join the Presiding officers is fatal to the petition. The provision of sub section 2 of the provision notwithstanding.
The testimonies of the Petitioner cited above show (1) that the election was held on 28/4/2007. That the presiding officer not the supervisory officer distributed electoral papers to the witnesses presented or witnesses for the petitioner clearly the witnesses for the 1st Respondent were so served. It is therefore in breach of section 144 of the Electoral Act, 2006 to have failed to join in the petition the presiding officer who presided over the election of 28/4/2007. The failure to join the presiding officer is fatal to the petition, and renders the petition to be dismissed for failure to join necessary officer in the petition. To fail to join the Presiding Officers is in breach of Section 33 of the 1999 Constitution which prescribe a right of fair hearing even if the Presiding Officers were not present at the election.
The Petitioner has failed for the failure to join and cite presiding officer sub section 2 of his provisions of section 144 of the Electoral Act as a respondent. The fact remains that in his failure to join the presiding officer the necessary party was not joined. The presiding officer ought to be joined in the petition if only for them to agree or say that they did not receive electoral papers from the supervisory officer who were taken to court, and deny the accusation of the Appellant witnesses whose evidence before the court can only be hearsay or presumption. In the event the presiding officers were denied their constitutional right of fair hearing. See Section 36 of 1999 Constitution. The evidence of the Appellant as held by the Court below does not support the claim and petition that is why the petition was dismissed in the Court below. It is dismissed. On appeal, there is no need to consider the other issues of the Appellant. The Success in those issues is dependent on the propriety and validity of the petition itself on which the appeal is founded. The appeal fails, it is dismissed.
There will be costs to the 1st Respondent of N10,000.00 and N5,000.00 to 2nd to 213th Respondents as a body.
Other Citations: (2009)LCN/3112(CA)
