Micheal Aderoju Okunlade V. Barrister Yisau Adesope Azeez & Ors (2009)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal, sitting in Ibadan (hereafter referred to as the Tribunal), whose decision was delivered on the 31st day of January, 2008.

In its judgment, the Tribunal nullified the April 14th, 2007 House of Assembly Elections for Oorelope State Constituency, Oyo State and ordered a fresh election into the Oyo State House of Assembly for the seat of Oorelope State Constituency.

The appellant being dissatisfied with the aforesaid judgment, appealed to this Court by a Notice of Appeal dated 18th day of February, 2008 and filed the same day. The said Notice of Appeal contained three grounds of Appeal set out on pages 441 – 444 of the record of Appeal.

The background facts are that, the Appellant was the candidate sponsored for the said April 14th, 2007 election by the Peoples Democratic Party (hereinafter referred to as PDP) into the Oyo State House of Assembly for the Oorelope State Constituency while the 1st Respondent contested as the sponsored candidate of the Action Congress (hereinafter called AC) in the same election.

In Oorelope State Constituency there are 10 (ten) Electoral Wards, and 78 (seventy-eight) polling Units or Stations. At the end of the election, the 2nd Respondent – Independent National Electoral Commission (INEC) declared the Appellant as the winner having scored 5,937 votes while 4,479 votes were recorded in favour of the 1st Respondent.

Four (4) other candidates also contested the election on the platform of different political parties.

Upon the return of the Appellant as the winner of the said election, the 1st Respondent being dissatisfied filed an election petition before the Tribunal. In the petition, the 1st Respondent predicated his petition on three (3) grounds. They are:

(i) The 1st Respondent was not duly elected by a majority of the lawful votes cast at the election.

(ii) The election and return of the 1st Respondent is invalid by reason of corrupt practices and non-compliance with the Electoral Act, 2006.

(iii) The 1st Respondent was not qualified to contest the said election to the seat of Oyo State House of Assembly held on 14th April, 2007 for failing to pay Tax as and when due and obtain a valid Tax Clearance Certificate.

The 1st Respondent as Petitioner before the Tribunal prayed for the following reliefs:

“(i) That it may be determined and thus determined that the 1st Respondent, MR. MICHAEL ADEROJU OKUNLADE was not qualified to contest the election into the Oyo State House of Assembly held on 14th April, 2007 for failing to pay his tax as and when due and/or not having valid tax clearance certificate.

(ii) That it may be determined and thus determined that the 1st Respondent, MR. MICHAEL ADEROJU OKUNLADE was not duly elected or returned by the majority of lawful votes cast at the Oorelope State Constituency election into the Oyo State House of Assembly held on Saturday 14th April, 2007.

(iii) That it may be determined and thus determined that the said election and the return of the 1st Respondent, MR. MICHAEL ADEROJU OKUNLADE are voided by acts which clearly violated and breach the provisions of the Electoral Act, 2006 including but not limited to rigging and manipulation of Electoral result, unprecedented act of violence, thuggery and coercion of opponents committed at the polling stations and wards level.

(iv) That it may be determined that going by the lawful votes at the said election (excluding units challenged) Your humble Petitioner ought to have been returned and should be returned as the elected member of the Oyo State House of Assembly representing Oorelope State Constituency after nullifying results of Units where election are either disrupted or did not hold and computation of the remaining results for all the wards.

(v) In alternative to (iv) supra, that the elections in the said Units be voided and/or set aside and a fresh election ordered therein.”

In support of the petition before the Tribunal, the 1st Respondent complained about specific wards and polling Units as listed in paragraphs (a) – (h) on pages 3 – 4 of the Appellant’s brief.

After the trial, the Tribunal came to the conclusion that, the Appellant was not responsible for the irregularities and malpractices alleged as he was not linked with any of such acts. The Tribunal also found that the elections were peaceful and conclusively held in the Units complained about. The Tribunal then held that there were over voting or over balloting in Ward 1 Unit 2; Ward 9 Units 1 and 4 and so nullified the results of the elections in respect of the said three polling units.

The 1st Respondent was not returned as the winner of the said election as the Tribunal found that he did not score majority of the lawful votes cast at the said election. The appellant alleged that with the cancellation of the results in Ward 2 Unit 1, Ward 9 Units 1 and 4, out of the total 78 polling units in the State Constituency, the Appellant had the majority of the lawful votes cast at the said election.

The appellant appealed to this Court against the decision of the Tribunal, nullifying the election of the Appellant and ordering a fresh election in the entire Constituency.

The Appellant distilled three (3) issues for determination from the three Grounds of Appeal as contained in the Notice of Appeal dated 18th February, 2008.

“(a) ISSUE 1

Whether the Tribunal was not wrong in nullifying the election and the return of the Appellant made thereto when it rightly held that minus the nullified 3 units, the 1st Respondent still did not win the majority of the lawful votes cast at the said election (This issue is related to Ground 1).

(b) ISSUE 2

Whether the lower Tribunal correctly interpreted and applied the provisions of Section 54(2) of the Electoral Act, 2006 in the face of the clear provision of Section 146(1) of the same Act. (This issue is anchored on Ground 2).

(c) ISSUE 3

Whether the lower Tribunal was not wrong in nullifying the April, 14th, 2007 Election in the face of Exhibit 2nd RE2 and 2nd RE3. (This issue is predicated on ground 3).”

In response, the 1st Respondent formulated on his part, two issues for determination in this appeal:-

“ISSUE 1

Whether or not substantial non-compliance in polling Units 2 of Ward 1, polling Unit 1 of Ward 9 and polling Unit 4 of Ward 9 substantially affected the result of the election in Oorelope State Constituency held on the 14th April, 2007.

ISSUE 2

Whether the Tribunal correctly evaluated the evidence placed before it.”

On behalf of the 2nd – 20th Respondents in their joint Brief of Argument, the learned counsel adopted the background facts leading to this appeal as set out in paragraphs 1.00 to 5.00 of the Appellant’s Brief of Argument and also adopted the three (3) issues formulated by the Appellant which were argued seriatim.

The 21st and 22nd Respondents did not file anything.

In response to the Appeal the 1st Respondent/Applicant filed a Notice of Preliminary Objection dated and filed on 16th June, 2008, pursuant to Order 6 Rules 2, 3, 4, 5 and 6 and Order 10 of the Court of Appeal Rules, 2007 and the inherent jurisdiction of this Court.

The 1st Respondent challenged the competence of the Notice of Appeal as well as Grounds 1, 2 and 3 and the issues formulated thereon and contended that this Court lacks jurisdiction to entertain the Appeal.

The grounds of the objection are as follows:-

(i) The Notice of Appeal dated 18th February, 2008 failed to disclose all persons directly affected by the appeal and thus the Appellant failed to serve/notify all persons so directly affected with the appeal.

(ii) The two particulars contained in ground 1 of the Notice of Appeal do not flow from the Ground of Appeal.

(iii) Ground 2 alleged an error in law, but particulars (ii) and (iii) failed to state the errors of law committed by the lower Tribunal, and also Ground 2 as stated in the Notice of Appeal is argumentative.

(iv) Ground 3 which is an omnibus Ground of Appeal does not relate to issue3 formulated in the Appellant’s Brief of Argument.

In respect of the first ground of the objection, it was submitted by the learned counsel to the 1st Respondent/Applicant Oluwagbemiga Olatunji Esq., that the Appellant has a mandatory duty to disclose all Respondents in his Notice of Appeal and to ensure that the Respondents were duly served with the Notice of his Appeal. It was argued that failure to state the two names of the 21st and 22nd Respondents in this Appeal as persons directly affected by the appeal in paragraph 5 as well as service on them by the Appellant goes to the root of the appeal.

It was submitted that in compliance with Order 2(b) of Election Tribunal and Court Practice Direction NO.2 of 2007, the 21st and 22nd Respondents not having been named by the Appellant as being affected by the Appeal, the Notice is incompetent for non-service of all Respondents directly affected by the appeal and therefore that this Court lacks jurisdiction to adjudicate upon same. Reliance was placed on the cases of AMADI V. OKOLI (1977) 7 SC 57 and BILAM DAMBAM V. ARDO LELE (2000) 1 NWLR (PART 678) 413. It was argued that the 21st and 22nd Respondents having been mentioned on the face of the Notice of Appeal ought to have been listed in paragraph 5 of the Notice of Appeal.

We were urged to strike out the Notice of Appeal as being incompetent.

In support of the second ground it was submitted that the two particulars do not flow from the Ground of Appeal, that the issue of nullification of election in three (3) Units out of seventy-eight (78) Units ought to be a separate ground of Appeal. Further, that since the issue of whether three (3) Units were nullified or 78 units existed in Oorelope Constituency was not part of the ground of Appeal, then the particulars stated in the ground do not flow from the ground of appeal. We were urged to strike out the particulars not flowing from or relating to ground 1 of the appeal and also strike out ground 1 of the Notice of Appeal, the cases of STIRLING CIVIL ENGINEERING LIMITED VS. YAHAHA (2002) FWLR (PART 114) 415 and AKINWALE V. BANK OF THE NORTH (2001) FWLR (PART 40) 1683, were relied upon.

The third ground, is on Ground 2 of the Notice of Appeal. It was submitted that ground 2 alleged an error in law in the misapplication of Section 54 of the Electoral Act, 2006 and that by the provision of Order 6 Rule 5, a ground of Appeal alleging an error in law should set out the particulars of the error in the Ground of Appeal. It was argued that particulars (ii) and (iii) are not particulars of the error in law in ground 2, that particular (ii) is based on facts decided upon by the Tribunal and has nothing to do with Section 54 of the Electoral Act. Further that Ground 2 in the Notice of Appeal is not a particular of the ground but argument and should be struck out. We were urged to strike out particulars (ii) and (iii) and on the authority of STIRLING CIVIL ENGINEERING LTD. (supra) in consequence also strike out particular (i) and the entire ground 2 and its particulars.

The fourth ground of objection is on ground 3 of the Notice of Appeal. It was argued that issue 3 formulated in the Appellant’s Brief of Argument does not relate to the ground of appeal. It was submitted that since the contention of the Appellant in Ground 3 of the Notice of Appeal is that the nullification of the election is against the weight of evidence adduced before the Tribunal, the issue formulated must relate to or be based on the totality of the evidence adduced by both parties before the Tribunal, which must be placed side by side and decided on balance of probability or on the preponderance of evidence. It was submitted that the issue of Exhibits 2nd RE2 and 2nd RE3 ought to be a separate ground of appeal with its particulars if the Appellant is not satisfied with the treatment conferred on the Exhibits by the Tribunal. Reliance was placed on the case of OSHODI V. EYIFUNMI (2000) 13 NWLR (PART 684) AT 332. We were urged to strike out ground 3 and the issue rose in its support as it does not relate to the said ground. The case of JENOC NIG. LTD. V. NIGERIA BOTTLING CO. was cited and relied upon. We were urged also to strike out the entire appeal for being incompetent.

The Appellant reacted to the 1st Respondent’s preliminary objection in his reply brief dated and filed on 20th June, 2008. In answer to the said preliminary objection, the learned senior counsel N. O. O. Oke (SAN) in his reply brief conceded that the name of the 21st and 22nd Respondents were not expressly stated in paragraph 5 of the Notice of Appeal, stating the persons directly affected by the appeal, but that their names were stated under the Notice of Appeal.

It was submitted by the learned senior counsel that nobody or party to this appeal is misled by the omission and none suffered any injustice, including the 21st and 22nd Respondents. It was argued that in the interest of justice and the necessary parties, we should hear and determine this appeal on its merit and cited and relied on the cases of ADELEKE V. O.S.H.A. (NO. 2) (2006) 11 NWLR (PART 990) 136, AJADI V. AJIBOLA (2004) 16 NWLR (PART 898) 91, FALOBI V. FALOBI (1976) 9-10 SC 1 and A. G. BENDEL V. A. G. FEDERATION (1981) 10 S. C.1. It was further argued that the 21st and 22nd Respondents have never shown interest in this matter from the institution of the petition that culminated in this appeal. It was submitted that they did not file any process and have never taken part in any of the proceedings or shown appearance despite being served with the Appellant’s brief of argument. We were urged to allow substantial justice to prevail over technical justice. The case of OGUNYODE V. OSUNKEYE (2007) ALL FWLR (PART 389) 1179. NGIGE V. OBI (2006114 NWLR (PART 9991 PAGE 1, and ORJI V. FRN (2007) 13 NWLR (PART 1050) 55 were cited.

We were urged to overrule the objection of the 1st Respondent and determine this appeal on its merits and also give effect to Order 6 Rules 8 and 12 of the Court of Appeal Rules, 2007.

In the alternative, we were urged to strike out the names of the 21st and 22nd Respondents for inadvertence omission of their names in paragraph 5 of the Notice of Appeal, and hear this Appeal based on the existing parties who are the proper and necessary parties in this action. In referring to Order 19 Rule 3(1) and (2), we were urged to invoke our general powers and determine this appeal on its merits and dismiss the preliminary objection.

It was argued that the submission that the particulars in ground 1 of the Notice of Appeal do not flow from the ground of appeal is misconceived as the particulars contained in ground 1 of the appeal emanate from the ground, therefore that the cases cited by the 1st Respondent in his brief of argument have no relevance with the issue raised, that is, the cases of STERLING CIVIL ENGINEERING LTD. (supra) and AKINWALE’S case (supra).

In respect of the 1st Respondent’s submission that grounds 2 and 3 of the Appellant’s Notice of Appeal are incompetent, it was submitted, is misconceived as the ground of Appeal was confused with issues for determination and that the cases relied upon by the 1st Respondent do not support his position, we were urged to discountenance the objection. It was argued that the particulars of error under Grounds 2 and 3 of the Appellant’s Notice of Appeal are competent, so also the issues formulated therefrom, we were urged to dismiss the preliminary objection of the 1st Respondent in its entirety.

It was conceded by the learned counsel to the Appellant that the names of the 21st and 22nd Respondents were not expressly listed in paragraph 5 of the Notice of Appeal as persons directly affected by the Appeal but no doubt their names were stated on the face of the Notice of Appeal dated 18th February, 2008 (at page 441 of the records of appeal), also acknowledged by the 1st Respondent in his argument. I have looked through the proceedings; none of the two named Respondents filed any process or participated in the proceedings. The 21st Respondent is the Divisional Police Officer, Igboho, Oorelope Local Government Area, Mr. Okanlawon, while the 22nd Respondent is the Commissioner of Police, Oyo State, both are nominal parties in the proceedings and have nothing to gain or lose whichever way the matter is determined as rightly argued by the learned Appellant’s counsel who argued that the names were inadvertently omitted in paragraph 5.

It has not been shown that anybody or any of the parties to this appeal was misled by the said omission and it has not been shown that any of the parties suffered any injustice. In agreement with the learned senior counsel to the Appellant, it has also been said over and over again that election matters are special and call for real justice, where substantial justice should over ride technicalities. The 1st Respondent has raised the issue of not listing 21st and 22nd Respondents as those affected by the appeal which is purely technical than the justice of the issues in contention in this appeal. See AJADI V. AJISOLA (2004) 16 NWLR (PART 898) 91 at 192 FALOSI V. FALOSI (1976) 9-10 SC 1 AT 14 AND A.G. SENDEL V. A.G. FEDERATION (1981) 10 SC 1. It is now a well known and more acceptable principle of law that reliance on technicalities leads to injustice as justice can only be done and seen to be done if the substance of the matter rather than its form is looked at, because of human error. Minor mistakes or errors could be made from time to time which should not deprive a party from having his complaint or matter properly ventilated and determined on the merits, moreso when the mistake, error or omission is by counsel, in this case having the names of the 21st and 22nd Respondents on the Notice of Appeal and in the same Notice in paragraph 5 omitted their names as persons directly affected. See AJADI V. AJIBOLA (supra).

Even though the 21st and 22nd Respondents were named on the face of the Notice of Appeal and the learned senior counsel did submit that the two omitted persons were served with the Appellant’s brief of argument they did not take any step in response and have not complained that their names were omitted as persons directly affected by the appeal. In any case, Order 19 Rule 3(1) and (2) of the Court of Appeal Rules, 2007 empowers us to proceed with the substantive appeal in the interest of justice to waive compliance by the parties with these Rules.

Order 19 Rule 3(1) and (2) reads thus:

(1) The Court may, in exceptional circumstance, and on where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.

(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the Appellant or the Respondents as the case may be, to remedy such non-compliance or May, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.

At this stage, we cannot turn back the hand of the clock to order that the names of the 21st and 22nd Respondents be included in paragraph 5 of the Notice of Appeal as persons directly affected by the Appeal. The interest of justice is better served by allowing the Appeal to proceed; whichever way the matter is determined has no effect on the 21st and 22nd Respondents as they are nominal parties who have not been shown to have interest in the matter.

In consequence the names of the 21st and 22nd Respondents are hereby struck out; accordingly the appeal against 21st – 22nd Respondents is dismissed.

The 1st Respondent in his preliminary objection had argued that the entire appeal be struck out on the ground that the particulars in ground one do not flow from the ground of Appeal. I agree with the learned senior counsel that the purpose of a ground of Appeal is to give notice to the Respondents of the main grouse or complaint devoid of any vagueness or ambiguity but the first ground of appeal in this case did not leave the 1st Respondent in doubt as to the main complaint. See OGE V. EDE (1995) 3 NWLR (PART 382) 564 also cited and relied upon by the learned counsel to the Appellant. The complaint in ground one is to the effect that the Tribunal was wrong to have nullified his election and return, and ordering a fresh ejection in the Constituency, and in the particulars that the nullification of the election in three (3) Units out of seventy eight (78) by the Tribunal did not affect the electoral victory of the Appellant over the 1st Respondent (Petitioner).

Secondly that the Tribunal having held that the petitioner did not win the majority of lawful votes cast at the ejection, and in the particulars that the Petitioner did not prove that he won the majority of lawful votes cast at the election upon the nullification of the three Units out of seventy eight.

I am of the considered view that the two particulars raised in ground one flow from the ground of Appeal, the particulars relate to the ground and the issue raised therefrom and I so hold.

On the 1st Respondent’s submission that grounds 2 and 3 of the Appellant’s Notice of Appeal are incompetent, the two grounds are clear and have given information and notice of the appellant’s complaint against the judgment, which in my candid opinion are valid grounds, the 1st Respondent is not left in doubt or to speculate as to the complaint against the judgment neither is it ambiguous. The grudge in ground 3 is that, had the Tribunal properly evaluated the evidence as presented before it, it could have arrived at a different conclusion. See the recent decision of this Court and Division in OLANIYI V. ADETUNJI (2008) 35 WRN PAGE 154 also AGBAMU V. OFILI (2004) 5 NWLR (PART 867) 540, AGBAKA V. AMADI (1998) 11 NWLR (PART 572) 16; (1998) 7 SCNJ 367 and BRITISH PETROLEUM WEST AFRICA LTD. V. ALLEN (1962) 1 ALL NLR 645.

In respect of ground 2, the particulars have been given and the ground is therefore competent with the issue raised, and in ground 3 the third issue also relates to the ground that is that the nullification of the election is against the totality of evidence before the Tribunal. The issue raised therefrom stands, as it relates to the ground of appeal. See UGO V. OBIEKWE (1989) 2 S.C. (PART 11) 41; (1989) 1 NWLR (PART 99) PAGE 566 and OMO V. J.S.C. DELTA STATE (2000) 5 WRN 110; (2000) 12 NWLR (PART 682) 444, (2000) 7 S.C. (PART 11) PAGE 1.

In ADELEKE V. O.S.H.A. (NO. 2) (2006) 11 NWLR (PART 990) 136 it was held that the proceedings in election matters are sui generis, and the trend now in such matters is towards doing substantial justice. In the same vain, in ERISI V. IDIKA (1987) 4 NWLR (PART 66) 503 it was held thus:

“The Courts are Courts of law but may the day never come when they cease to be Courts of Justice. Substantial justice cannot be done unless Courts of Justice strain to ensure that appeals are heard on their merit.”

The courts are now more interested in substance than mere form of a matter. Justice can only be done if the substance of the matter is looked into, in the interest of justice. See NGIGE V. OBI (2006) 14 NWLR (PART 999) PAGE 1, it would be better to hear the appeal on its merits.

In the final analysis, I am of the view that the 1st Respondent’s objection is without merit and is accordingly overruled. The appeal is competent and shall be heard on its merit, against 1st – 20th Respondents.

In arguing the appeal, on his issue one, the learned senior counsel N. O. O. Oke (SAN) in the Brief dated and filed on behalf of the Appellant on 5th June, 2008 submitted that there are 78 polling Units in the 10 (ten) Electoral Wards of Oorelope State Constituency. It was argued that prior to the nullification of the result of 3 out of the 78 polling Units, the Appellant led the other contestants inclusive of the 1st Respondent. The Tribunal gave the result of the Appellant as 5,939 and that of the 1st Respondent as 5,446. Further that if the results of the three polling Units, Ward 2 Unit 1; Ward 9 Units 1 and 4 are nullified, the result of the two candidates ought to be 5311 for the Appellant and 5,171 for the 1st Respondent, leaving the Appellant on the lead with 140 votes. It was argued that the figures subtracted from the Appellant’s scores were clearly wrong and referred to Exhibit PE3. It was submitted that the Tribunal subtracted figure 221 from Exhibit PE3- 062211 when it ought to have subtracted 212, page 53 of the judgment, Page438 of the records.

It was submitted that the correct figure is Exhibit PE3- 062311 with the Appellant having figure 212 while the 1st Respondent AC was credited with 94 votes as against what the Tribunal deducted. It was submitted that on nullification of Ward 9 Unit 1, Exhibit PE3- 062356 the Tribunal deducted 189 from the Appellant’s figure, but failed to state that the 1st Respondent was credited with 98 votes.

Further, that Exhibit PE3- 062359 had 127 for the Appellant (PDP) and 83 for the 1st Respondent (AC), but the Tribunal gave the impression that, only the Appellant was credited with votes. The following figures were then given as what ought to have been nullified in respect of the three affected polling units.

Appellant (PDP) 1st Respondent (AC)

Ward 2 Unit 1 – 212 Exhibit PE-3-062311 94

Ward 9 Unit 1 – 189 Exhibit PC-3-062356 98

Ward 9 Unit 4 – 127 Exhibit PE3-062359 83

Total = 628 275

It was argued that the Tribunal by arithmetical calculation came to the conclusion that the result which ought to be released by the 2nd Respondent without any nullification ought to be as follows:-

Appellant (PDP) – 5,939 1st Respondent (AC) – 5,446 (inclusive of 967 allegedly omitted).

It was submitted that if the total nullified figures for each candidate is subtracted, the scores of the candidates would be as follows:-

Appellant 1st Respondent

5,939 5,446

-628 275

TOTAL = 5,311 5,171

It was argued that from the above figures, the Appellant would still retain his majority (140 votes) of the adjudged lawful votes cast at the said election, more than his nearest opponent (1st Respondent) in compliance with Section 117(i) of the 1999 Constitution of the Federal Republic of Nigeria, it was argued that the Appellant ought to be returned as elected, we were urged to do so.

It was further submitted that the fact that the Tribunal only faulted the election in three (3) out of seventy-eight (78) Units showed that the election went well in 97% of the entire Constituency and that the majority of the electorates voted in the Oorelope State Constituency, which means substantial compliance, the case of SORUNKE V. ODEBUNMI (1960) SC NLR 414 was relied upon.

The learned Appellant’s counsel in his further submissions questioned the cancellation of the entire election when Section 54(2) of the Electoral Act, 2006 allows for the cancellation of the affected polling Units where deserving and that the Tribunal erred in law when it nullified the entire election by relying on Section 54(2) of the Electoral Act. It was submitted that Section 54(2) is clear and unambiguous and should be given its ordinary, plain, literal meaning, the following cases were cited and relied on – COTECNA INTERNATIONAL LIMITED V. IVORY MERCHANT BANK LIMITED (2006) 9 NWLR (PART 985) 275; UNIPETROL NIGERIA PLC V. EDO STATE BOARD OF INTERNAL REVENUE (2006) 8 NWLR (PART 983) 624 and AWUSE V. ODILI & ORS. 2004 8 NMLR (PART 876) PAGE 481.

It was submitted that there was nothing placed before the Tribunal that the non-compliance found in the nullified Units affected the entire Constituency, it was argued that it did not, as the Appellant still retained his majority votes of the lawful votes cast at the entire Constituency. We were urged to resolve issue one in favour of the Appellant.

In arguing the Appellant’s second issue, the learned senior counsel submitted that the Tribunal was wrong in nullifying the entire Constituency election where Section 54(2) of the Electoral Act, 2006 provided them with ample opportunity not to do so in deserving cases, Section 54(2), (3) and (4) were reviewed alongside the provisions of Section 146(1) of the Electoral Act, 2006.

It was submitted that the Tribunal failed to do a communal reading of the whole statute in interpreting Section 54 and Section 146(1) of the Electoral Act, 2006 and failed to find correctly the true intention of the legislators. The following cases were relied upon:

SALAMI V. CHAIRMAN, L.E.D.B. (1989) 5 NWLR (PART 123) PAGE 539; DANTOSOHE V. MOHAMMAD (2003) 6 NWLR (PART 817) P. 457; BUJU V. IBRAHIM (2005) ALL FWLR (PART 274) PAGE 261 and CANADA SUGAR REFINERIES CO. V. R. (1898) AC, 735.

We were urged to allow the appeal and hold that 75 polling stations should override three (3) polling stations.

Further that the cancelled result did not materially affect the result and return of the Appellant made by the 2nd Respondent. We were urged to upturn the nullification of the entire election and the return thereof, the following cases were cited and relied upon, SORUNKE V. ODEBUNMI (supra), ADEOLA V. OWOADE (1999) 9 NWLR (PART 617) PAGE 30 and IBRAHIM V. SHAGARI (1993) SCNLR 176.

On reliance on the case of OPIA V. IBRU (1992) 3 NWLR (PART 231) PAGE 658 where it was held that election failure in one (1) Local Government Area is not enough to void election in the entire Delta State, learned senior counsel submitted that it has to be shown by the Petitioner that it had substantially affected the result in the whole State. We were urged to so hold, to avoid inconvenience to the greater percentage of the electorate and the state.

It was submitted that over voting where established would cause the result of the polling unit in a Constituency involved to be cancelled, we were urged to resolve this issue in favour of the Appellant by upholding his election, having won the majority of lawful votes cast at the election after the cancellation of the three (3) polling Units.

In arguing his third issue, the learned senior counsel to the Appellant submitted that the Tribunal was wrong to have nullified the election in the entire Constituency on the premise that, the 1st Respondent (Petitioner) suffered obvious disadvantage because it is the total of the votes scored by the 1st Respondent (Appellant herein) at the three (3) nullified polling Units that gave the Appellant an advantage over the 1st Respondent (Petitioner). Learned counsel argued that the above holding of the Tribunal is erroneous and an improper evaluation of the evidence before the Tribunal, which occasioned a miscarriage of justice. Further that the Tribunal failed to evaluate Exhibits 2nd RE2 and 2nd RE3 which showed that the 1st Respondent had equally benefited from the alleged illegality (over balloting) which the field men who conducted the election explained as mistakes at the affected Units. See LONGE V. FBN PLC (2006) ALL FWLR (PAGR 313) PAGE 46. It was submitted that the Appellate Court is competent to examine those Exhibits and make a finding thereof, and relied on the following cases:- GUARANTY TRUST BANK PLC V. FADEO INDUSTRIES LTD. (2005) ALL FWLR (PART 287) PAGE 913; IWO LOCAL GOVERNMENT V. ADIGUN (1992) 6 NWLR (PART 133) PAGE 494 and FAGBENRO V. AROBADI (2006) ALL FWLR (PART) 310) 1575.

It was submitted that the 1st Respondent as Petitioner before the Tribunal pleaded stuffing in respect of Ward 9 polling Units 1 and 4, that it was wrong for the Tribunal to hold that, the case before them was a case of ballot box stuffing which must be proved as laid down in HARUNA V. MODIBO (2004) 16 NWLR (PART 900) PAGE 489 which learned senior counsel contended had occasioned a miscarriage of justice. Further that it was wrong for the Tribunal to have held that the evidence of over balloting was correctly put forward in proof of allegations laid in respect of Ward 9 Units 1 and 4.

It was contended that what was pleaded was ballot box stuffing while evidence led is in respect of over balloting, being at variance with the pleadings should have been discountenanced by the Tribunal. It was submitted that it was wrong for the lower Tribunal to nullify the election of the 14th April, 2007 in respect of the Oyo State House of Assembly seat for Oorelope State Constituency on the basis of over balloting. We were urged to resolve issue three (3) in favour of the Appellant.

In the alternative, should this court overrule the preliminary objection as has been done, the learned counsel to the 1st Respondent Oluwagbemiga Olatunji Esq. in his brief of argument proffered arguments in support of his two issues, earlier reproduced in this judgment?

It was submitted by learned counsel that the result of the election in question as declared by the 2nd Respondent is as contained in Exhibit PE25, Form EC.8E (i) (paragraph 14 at page 3 of the record of appeal) that is, Appellant 5,937, 1st Respondent 4,479. It was submitted that 967 votes from 15 polling Units of Ward 3 were wrongly excluded from the scores of the Petitioner/1st Respondent admitted by all the Respondents which the Tribunal in its judgment added to the result of the 1st Respondent and the following figures were arrived at: Appellant 5,937, 1st Respondent 5,446. The difference between the score of the Appellant and the 1st Respondent was given as 491 votes (page 438 of the record of appeal).

It was submitted that the Tribunal rightly discountenanced the results in the three (3) Units nullified by the Tribunal. Learned counsel refuted the Appellant’s allegation that 189 votes were deducted from the votes of the Appellant by the Tribunal in respect of Ward 9 Unit 1 and 127 votes in respect of Ward 9 Unit 4 without deducting any from that of the 1st Respondent. It was argued that the nullified three (3) Units substantially affected the overall votes/result of the Petitioner to which the Appellant could not prove otherwise, therefore that it would be wrong to hold that the Appellant would still retain his majority (140 votes) of the adjudged lawful votes cast at the election, further that the 1st Respondent as Petitioner established in the three (3) affected Units that the election was not conducted in accordance with the principles of the Electoral Act as it was characterized/fraught with irregularities of over balloting.

We were urged to resolve this issue (covered in the Appellant’s issues one and two) against the Appellant by upholding the nullification of the result and in the Constituency.

In respect of his issue two, the learned counsel to the 1st Respondent submitted that the evidence before the Tribunal in respect of Ward 2 Unit 1, Ward 9 Units 1 and 4 were properly evaluated by the Tribunal and that the Tribunal properly found that non-compliance in those Units were substantial enough to affect the results of election in the Constituency.

With regard to Exhibits 2nd RE2 and 2nd RE3, that is Form EC8A (i) for Ward 9 Unit 3 and an alleged undated report by the Presiding Officer for Ward 9 Unit 3, one Salami Jamiu, it was submitted that the two Exhibits were not pleaded by any of the Respondents at the Tribunal see pages 45-46 and pages 128-129 of the Record of Appeal for the replies of the 1st Respondent and 2nd – 20th Respondents. It was argued that these Exhibits have no probative value as they were not pleaded, and therefore goes to no issue. We were urged to expunge and discountenance these Exhibits as they were wrongly admitted. The case of OLUKADE V. ALADE (1976) 1 SC 183 was cited and relied upon. It was argued that by paragraph 49 (page 10 of the records) and page 52 (page 11 of the records) the Petitioner pleaded over balloting in Ward 9 Units 1 – 4, whereas the Appellant argued that what was pleaded was stuffing of ballot boxes. It was submitted that the case of HARUNA V. MODIBBO (supra) applies regarding stuffing of ballot boxes.

We were urged to resolve all the issues against the Appellant and dismiss this appeal for lacking in merit.

The learned counsel to the 2nd – 20th Respondents – Kolawole Omotinugbon Esq., in his brief of argument adopted the background facts to this appeal, as in paragraphs 1.00 – 5.00 of the Appellant’s Brief of Argument and also adopted the three issues formulated by the Appellant. Learned counsel to the 2nd – 20th Respondents adopted all the arguments and submissions of the Appellant on issue 1 but the learned counsel corrected an alleged arithmetical error in paragraph 7.05 of the Appellant’s Brief of Argument in respect of additions of the votes in the three nullified Units that is: Ward 2 Unit 1: 212, Ward 9 Unit 1: 189, and Ward 9 Unit 4: 127 votes totaling 528 and not 628 wrongly stated by the Appellant as a result that the Appellant retained his lead with 240 votes of the lawful majority votes after the nullification of the three Units as opposed 140 votes in the Appellants Brief of Argument.

It was argued that the Tribunal was wrong to have nullified the entire election of the 14th April, 2007 in Oorelope State Constituency in Oyo State. Section 54(2) of the Electoral Act, 2006 was also highlighted. It was also submitted that the result of the cancelled/nullified three Units did not affect substantially the entire election. In citing Section 146(1) of the Electoral Act it was submitted that election having held in 75 out of 78 Units was substantial enough as not to affect the result of the election. Learned counsel also argued that the two sections should be read together. Further that taking away the results of the nullified three (3) polling Units, the Appellant retained his majority of the lawful votes therefore that the return made by the INEC is justified; we were urged to hold so. The case of SODUNKE V. ODEBUNMI 1960 SCNLR 414 was cited and relied upon. It was argued that the burden was on the 1st Respondent as the Petitioner to show that the result of the nullified three (3) polling Units affected the overall election. Also cited were the cases of OJUKWU V. ONWUDIWE (1984) 1 SCNLR 247, AWOLOWO V. SHAGARI (1979) 12 NSCC 87, CHIBOK V. BELLO (1993) 1 NWLR (PART 267) 109, BUHARI V. OBASANJO (2005) 13 NWLR (PART 941) and AKINFOSILE V. IJOSE (19600 SCNLR 444. We were urged to allow the appeal on issue one.

In respect of issue two, the learned counsel to the 2nd – 20th Respondents associated himself with the contentions of the Appellant and also argued that the first limb of Section 54(2) deals with a situation where there is over voting in a Constituency then the election in the Constituency would be nullified, whereas the second limb deals with nullification of results of polling booths where votes cast exceed the number of registered voters, similar to the argument of the learned counsel to the Appellant, learned counsel submitted that Section 54(2), and Section 146(1) of the Electoral Act 2006, should be read together to get the real intention of the legislators. The case of BIU V. IBRAHIM (2005) ALL FWLR (PART 274) 261. We were urged to allow this appeal on issue two.

On issue three the learned counsel adopted the argument canvassed by the learned Appellant’s Counsel and further submitted that all that was presented before the Tribunal was in proof of over voting while the pleadings were in support of stuffing, as pleaded on page 10 of the records. Reference was made to the evidence of PW6, PW15, PW16 and PW17 as well as Exhibit PE3 and PE14 in respect of over voting (pages 35-36, 312-313, 356-357, 197-198, 357-358, 359-363). The following cases were relied upon N.A.S. LID. V. UBA PLC (2005) ALL FWLR (PART 275) PAGE 286, EDOSA V. ZACCALA (2006) ALL FWLR (PART 306) 881, HARUNA V. MODIBBO (2004) 16 NWLR (PART 900) 489 AT 551 was cited in respect of the standard of proof of ballot box stuffing.

It was submitted that over voting was not pleaded therefore any evidence to that effect goes to no issue and should be discountenanced. We were urged to upturn the Tribunal’s decision that there was over voting in the three nullified Units.

The Appellant’s issues 1 and 2 adopted by the 2nd – 20th Respondents are inter related and are covered by the 1st Respondent’s first issue, I will resolve the issues together. The two issues are challenging the nullification of the election and return of the Appellant made by 2nd Respondent when, with the three cancelled Unit results the Appellant still had the majority of lawful votes cast, when the Tribunal also held that the 1st Respondent did not score the majority of lawful votes. The issues also cover the proper interpretation that should be given to Section 54(2) of the 2006 Electoral Act, in the face of Section 146(1) of the same Act.

There is no dispute that there are 78 polling Units in Oorelope State Constituency (hereafter referred to as the Constituency) At the end of the election the 2nd Respondent (I.N.E.C.) declared the Appellant as the winner having scored 5,937 votes while 4,479 votes were recorded in favour of the 1st Respondent.

The 1st Respondent alleged in paragraph 33 of his petition that 967 votes were not collated for him in 15 polling Units in Ward 3, this was admitted by the Appellant in paragraphs 4 and 8 of his reply to the petition and admitted by 2nd – 20th Respondents in their joint reply to the petition in paragraph 12, in this appeal it was not disputed. The Tribunal therefore rightly added the excluded results of 967 votes to the votes of the 1st Respondent then Petitioner on the authority of SAM V. EKPOHU AND ORS. (2000) 1 NWLR (PART 642)582, the Tribunal has the power to add the votes found to have been wrongly excluded to the score of the affected candidate, Petitioner and 1st Respondent. The addition was proper, which brought the scores of the parties as: Appellant 5,939 and 1st Respondent 5,446. The learned counsel to the 1st Respondent then gave 491 votes as the difference between the Appellant and the 1st Respondent without the votes in the nullified 3 Units.

There is no dispute that 500 ballot papers were issued to each of the nullified Units, that is Ward 2 Unit 1, Ward 9 Units 1 and 4 in the Constituency. From Exhibit PE 3 series, Form EC8A (i) No. 06211, in respect of Ward 2 Unit 1, the total number of votes (unused, spoiled, rejected ballot papers and valid votes) were 504 votes, 4, above the ballot papers issued. In Ward 9 Unit 1 in Exhibit PE3, Form EC8A (i) Serial No. 62356 the votes recorded were 507, which is 7 above the ballot papers issued out, and in Ward 9 Unit 4, Exhibit PE3 Serial No. 062359, Form EC8A (i), the total figure is 522, 22 above the ballot papers where 500 ballot papers were issued to the Unit. The 2nd – 20th Respondents attributed the higher figures to mistake in the entries, which the Tribunal discredited and rightly held that over-balloting had been established by the Petitioner 1st Respondent and nullified the election in the three affected Units. This holding could only be upturned if it was perverse from the evidence led, which I think otherwise.

It was argued by the learned senior counsel for the Appellant that in the nullified Units, the Appellant was credited with 628 votes while the 1st Respondent was credited with 275 votes earlier tabulated in this judgment. If these figures are deducted from Appellant’s 5,939 and 1st Respondent’s 5,446 (inclusive of 967 votes added) respectively, the Appellant would have 5311 and the 1st Respondent 5171, the difference would be the Appellant scoring 140 votes higher than the 1st Respondent.

On the part of the 2nd – 20th Respondents after their computation and correction of the alleged slip made by the Tribunal (conceded by the 1st Respondent) where the figure stated was 221 votes instead of 212 votes (page 438 of the record of Appeal) in respect of Exhibit PE3 No. 062311 regarding Appellant’s votes, if the votes of the three (3) Units are deducted the 2nd-20th Respondents submitted that the Appellant still retained the lead with 240 votes as opposed to 140 as represented in the Appellant’s Brief.

In this case, it is clear and not disputed by the parties that the total number of disenfranchised voters in the three affected Units are 1,500.

The Appellant gave the margin with which he defeated the 1st Respondent as 140, 2nd – 20th Respondents gave the figure as 240 and 1st Respondent gave the figure as 491.

The big question is if the 1,500 voters are allowed to cast their votes, is it likely to tilt the result as declared by the 2nd Respondent (INEC) in favour of any of the candidates? In any election it is the total of the votes scored by the parties that count. Though in Exhibit PE3 series the 1st Respondent as Petitioner established that there was over voting/balloting in the three nullified Units which it was argued substantially affected the overall votes/results of the Petitioner. Meanwhile the Appellant has not shown on record that the nullification of the results did not substantially affect the overall results of the Petitioner/1st Respondent. It is clear that the various margins as given by the parties is much less than the number of disenfranchised voters.

The question now is: was the Tribunal wrong to have nullified the Election and the return of the Appellant when it held that minus the nullified 3 Units, the 1st Respondent did not have the majority of the lawful votes cast at the said election?

Section 54(2) of the Electoral Act, 2006 provides:

“Where the votes cast at an election in any Constituency or polling station exceeds the number of registered voters in that Constituency or polling station, the election for that Constituency or polling station shall be declared null and void by the Commission and another election shall be conducted at a date to be fixed by the Commission.” (Underlined for emphasis)

While Section 146(1) of the same Act provides thus:

“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the election.” (Underlining for emphasis)

From the above provisions the Appellant as 1st Respondent could not have been returned as duly elected when he seemingly had higher figures than his opponent in the face of the nullified 3 Units, as the non-compliance (over voting) affected substantially the result in the Constituency.

The learned senior counsel for the Appellant argued that 3 Units out of 78 which the Tribunal faulted, is a small percentage compared with where election held in 97% of the entire Constituency, it was argued that the majority of the electorate voted and the 3 Units would not make a difference there having been substantial compliance. I tend to disagree in that it depends on the difference the small percentage of the disenfranchised voters would make. In agreement with the learned counsel to the 1st Respondent, cancellation that will affect the result of election is not normally assessed in terms of percentage.

In ALADE V. AWODEYIN (1999) 5 NWLR (PART 604) 529 irregularity in an election was defined, it was held that where the total number of votes cast exceeds the total number of accredited voters/ballot papers issued, such a result would be nullified. In the present case the irregularity of over voting/balloting was established in the three nullified Units, and it was proper to have nullified same.

An election would be said to be substantially affected, where the number of votes by which the Respondent led the Petitioner in the result of the election, is likely to be upset by the number of registered voters in the polling unit or station where no voting took place. See BIYU V. IBRAHIM (2005) ALL FWLR (PART 274) 261 AND EZIKE V. EZEUGWU (1992) 4 NWLR (PART 236) 462. Here I would distinguish the case of CHIBOK V. BELLO (supra) cited and relied upon by the learned counsel to the 1st Respondent, in that case the malpractices were scattered here and there but in this case the Units are 3 specific ones, not disputed.

Acts such as over voting/balloting which is sufficient to substantially affect the result of an election need not be widespread non-compliance. It may be acts which occur only in one or few places, yet the effect is so significant as to affect the overall result of the election between the two candidates. See also OPUTEH V. ISHIDA (1993) 3 NWLR (PART 279) 34. Each case must be decided based on its peculiar circumstances. In some cases the impact/effect of the over voting/balloting will not affect the overall result in the Constituency if cancelled, in others it would. In the above cited Judgment the result of one Unit result was held to be capable of tilting the result either way where the margin between the parties was small and the number of registered voters in the nullified unit was higher than the winning margin. In the present case, whether the margin is 491, 120 or 240 it is far less than 1500 not disputed by all parties to be the total number of voters in the three Units in question.

It is clear that with the nullification of the results in the three Units the true result of the election in the Constituency cannot be said to have been collated. If the voters were to cast their votes in the three Units, obviously the overall result in the Constituency could tilt either way. Contrary to the argument of the learned counsel to the Appellant that election took place in the overwhelming majority of the constituency. The case of SODUNKE V. ODEBUNMI (supra) can be distinguished where it was held that where election in 86 out of 135 polling Units is substantial compliance with the provisions of the Electoral Act, the figures where election did not take place were not significant enough to have affected the overall results. Even though the Appellant seemingly had the majority of lawful votes cast, it was a figure that excluded the three Units with a significant number of disenfranchised voters. The figure in the three Units is substantial enough to affect the overall results of the Constituency if the voters were to vote and their results collated, obviously the noncompliance or irregularity of over balloting in the present case I hold is substantial and could affect the final result of the election, therefore Section 146(1) of the Electoral Act cannot avail the Appellant. Part of Section 146(1) that is most significant is:

“…and that the non compliance where it exists must not affect substantially the result of the election.”

I am of the opinion and in agreement with the learned counsel to the 1st Respondent guided by the earlier cited legal authorities that the cancellation or nullification that will affect the results of an election is not normally assessed in terms of percentage but the effect it would have on the overall results had the voters in the cancelled Units voted. It would therefore be wrong to argue that the fact that only 3 Units out of 78 were faulted by the Tribunal showed that election went on well in the overwhelming majority of the Constituency, and I so hold.

Having held that the numbers of disenfranchised voters are capable of tilting the results of the election in favour of any of the candidates the next question is: Was the Tribunal right to have nullified the Election in the entire Constituency? Section 54(2) of the Electoral Act allows for the cancellation of affected Constituency or polling Units where necessary.

With a proper interpretation of the sub-section the Tribunal was wrong to have nullified the rest of the Constituency, 75 Units precisely where the Tribunal did not fault the election. The subsection envisages two situations, where the total number of votes cast exceeded the total number of voters registered in the entire Constituency, the election in that Constituency shall be declared null and void, secondly if the votes cast at a polling station or Units exceeds the number of registered voters in that polling station, then the result of that polling station/unit shall be declared null and void by the Commission and another election shall be conducted at a later date fixed by the Commission. The wordings of the sub-section are plain and unambiguous and should be given their literal meaning. See COTECNA INTERNATIONAL LTD. V. IVORY MERCHANT BANK LTD. (SUPRA) UNIPETROL NIG. PLC V. EDO STATE BOARD OF INTERNAL REVENUE (SUPRA) and AWUSE V. ODILI & ORS. (SUPRA),

From the above sub section only the three Units where there was over voting/balloting that were expected to be nullified having held earlier in this judgment that the non-compliance or irregularity affected the overall results in the Constituency, in that if the disenfranchised voters were to cast their votes, the result could tilt either way. In BIYU V. IBRAHIM (supra) it was held thus:

“over-voting would, where established, cause the result of the polling unit in a Constituency involved to be cancelled, being null and void” (Underlined for emphasis)

Where the nullification of three Units substantially affected the overall results in Oorelope Constituency as has been held in the present case, what the Court must do is to give the registered voters in the three Units an opportunity of repeating their election. It would be cumbersome and unnecessary to hold election in the other 75 Units not faulted by the Tribunal.

I also agree with the argument of the learned counsel to the 2nd – 20th Respondents that the nullification of the entire result in Oorelope Constituency is unfair and occasioned a miscarriage of justice but differ from him in that the learned counsel urged us to declare the Appellant as having scored the majority of lawful votes cast, minus the nullified votes. I also agree with the learned counsel that Section 54(2) of the Electoral Act, 2006 empowers the Tribunal to nullify results of polling booths wherein votes cast exceed the number of registered voters in line with a distinctive interpretation of the said provision of the subsection with the use of the word OR between the word “Constituency” and “polling station” in the subsection.

On the other hand I am of the view that if the Appellant is declared as having scored the majority of lawful votes it would be contrary to the tenets of democracy to deny a large number of the electorate the opportunity of casting their votes for their preferred candidate and having a say in whom their leader should be.

Section 54(3) provides:

“Where an election is nullified in accordance with Subsection (2) of this Section, there shall be no return for the election until another poll has taken place in the affected area.”

Ideally the 2nd Respondent ought not to have declared any result or return of any candidate until proper election had been conducted in the three Units where the electoral officers attributed the inflated figures to wrong entries, then the election would have been conclusive,

The non compliance or irregularity in polling Unit 2 of Ward 1, polling Units 1 and 4 of Ward 9 substantially affected the result of the election in Oorelope Constituency held on 14th April 2007, and the Tribunal ought to have limited the nullification to the affected Polling Units. The results of the election in the three affected Units and the return of the Appellant remain nullified while I am of the firm view that the elections in the rest of the seventy five (75) Units remain valid.

With due respect to the Tribunal, the Tribunal mis-interpreted and misapplied the provisions of Section 54(2) of the Electoral Act, 2006 in the face of the clear provisions of Section 146(1) of the same Act. In respect of the Appellant’s issue three (covered by the 1st Respondent’s 2nd issue) Exhibits 2nd RE2 and 2nd RE3 which were admitted in evidence by the Tribunal did not have any evidential value in favour of the Appellant’s case. In compliance with the provisions of paragraph 15 of the 1st Schedule to the Electoral Act, the Appellant who was retuned ought to have objected to the votes in the above Exhibits scored by the 1st Respondent in his reply, as required in the above schedule, this he failed to do as it is not contained in the printed records. The issue of over balloting has been dealt with in issues one and two and the ones being objected to are not related to the nullified Unit results where over voting was held by the Tribunal to have been proved.

Part of paragraph 15 of the second schedule provides:-

“…the party defending the election or returned at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.”

The Appellant not having objected to any of the votes scored by the 1st Respondent at the time by way of reply, the allegation that the Petitioner/1st Respondent had equally benefited from the same illegality of over balloting does not hold water. See CHUKWUMA V. ANYAKARA (2006) ALL FWLR (PART 302) 121, the resultant effect is that the Appellant’s third issue fails.

In sum the Appeal succeeds in part, I hereby order as follows:

(1) Judgment of the Tribunal delivered on 31st January, 2008, nullifying the declaration and return made by the 2nd Respondent of the Appellant MR. MICHAEL ADEROJU OKUNLADE of the Peoples Democratic Party (PDP) in respect of the Election of 14th April, 2007, to the Oyo State House of Assembly in Oorelope Constituency is hereby affirmed.

(2) The election in Ward 2 Unit 1, Ward 9 Units 1 and 4 remain nullified and the 2nd Respondent, Independent Electoral Commission (I.N.E.C.) shall conduct supplementary Election in the above listed units, within 90 days.

(3) The Result in the rest of the Constituency (75 Units) remain valid as declared by the 2nd Respondent (I.N.E.C).

(4) The results of the election in the 75 Units not faulted by the Tribunal shall be added to the results of the supplementary election in the three (3) Units.

CROSS APPEAL

The 1st Respondent in the main Appeal Cross Appealed against the judgment of the Tribunal delivered on 31st day of January, 2008. In the said judgment the Tribunal sustained the allegation of over balloting by the Cross Appellant in respect of Ward 2 Unit 1, Ward 9 Units 1 and 4. As a result of the irregularity and non-compliance with the Electoral Act, established through evidence in respect of the above Units, the Tribunal held that the nullification of the three (3) Units affected the results of the Election in the Constituency and nullified the declaration made by the 2nd Respondent (I.N.E.C.) of the Appellant Cross Respondent as the winner of the election of 14th April, 2007, in Oorelope State Constituency and ordered the conduct of a bye-election in the Constituency.

The Tribunal then held that the allegations of the 1st Respondent/Cross Appellant in respect of Ward 1 Unit 4 (Community Centre, Iyaa) Ward 5 Unit 3, Ward 7 Units 1 and 2, and Ward 10 Unit 12 were not proved and hence the main prayer of the 1st Respondent/Cross Appellant in his petition that he be declared as the winner of the election into the Oyo State House of Assembly in Oorelope Constituency having scored the majority of the lawful votes cast at the said election was refused.

Secondly, in course of trial, the Tribunal in its Ruling of 11th July, 2007 (pages 131A to 131F of the records of Appeal) refused the Cross Appellant’s application for amendment.

It is against the said Ruling on amendment and the judgment as relates to Ward 1 unit 4, Ward 5 unit 3, Ward 7 Units 1 and 2 and Ward 10 Unit 12 as well as the failure of the Tribunal to declare the Cross-Appellant as the winner of the said election that the Cross-Appeal was filed.

The Cross Appellant’s Notice of Appeal dated the 21st day of February, 2008 was filed the same day. The said Notice of Cross Appeal contained ten (10) grounds of appeal.

Facts leading to the Cross Appeal are as given in the main Appeal.

Six (6) issues were formulated for determination in the Cross Appeal as follows:-

(a) Whether the lower Tribunal rightly refused the Cross-Appellant’s application for Amendment of Unit 3 of Ward 1 (Community Centre, Iya) to read Unit 4 of Ward 1 (Community Centre, Iya) and discountenanced evidence led in respect of Community Centre, Iya by the parties. (Grounds 1 and 2)

(b) Whether the lower Tribunal was right on the preponderance of evidence to rely on Exhibits PE3 for Ward 7 Units 1 and 2 to hold that election was held and concluded in Ward 7 Units 1 and 2. (Grounds 3 and 4)

(c) Whether the lower Tribunal rightly upheld the results of election in Ward 5 Unit 3 despite evidence of disruption of voting exercise and closing of poll earlier than the scheduled time for closing. (Ground 5)

(d) Whether the lower Tribunal rightly held that Exhibit PE3 No. 062367 and IRW7 tendered in respect of Ward 10 Unit 12 are the same and that election was conducted in the unit despite evidence to the contrary. (Grounds 6 and 7)

(e) Whether the lower Tribunal rightly held that the Petitioner (Respondent/Cross Appellant) failed to establish any nexus between the 1st Respondent and the PDP thugs who perpetrated the malpractices in Ward 5 Unit 3 and Ward 7 Units 1 and 2. (Ground 8)

(f) Whether the lower Tribunal rightly held that the Petitioner/Cross Appellant did not prove his case beyond reasonable doubt in respect of Ward 1 Unit 4, Ward 5 Unit 3, Ward 7 Units 1 and 2 and Ward 10 Unit 12 and therefore failed to return the Petitioner/Cross Appellant as scoring the majority of lawful votes. (Grounds 9 and 10)

In response to the Cross Appeal, the Appellant/1st Cross Respondent filed a Notice of Preliminary Objection under Order 10 Rule 1 of the Court of Appeal Rules, 2007 contained in his Brief of Argument. The sole ground of objection was also incorporated in the Brief of Argument (page 3) dated and filed on 30th June, 2008.

In arguing his objection, the learned senior counsel N. O. O. Oke (SAN) submitted in his Brief of Argument that by virtue of Section 25(2) (9) of the Court of Appeal Act, CAP 75 Laws of the Federation, 1990 the Cross Appellant’s interlocutory appeal is clearly out of time, hence his appeal in respect of Grounds 1 and 2, covered by his issue one is incompetent.

It was argued that the Interlocutory Ruling of the Tribunal being appealed against in Ground one, of the Grounds of Cross Appeal was delivered on 11th July, 2007, while the Notice of Cross-Appeal was filed on 21st February, 2008. It was argued that the period within which to have appealed was 14 days, the time having expired that leave of this Court ought to have been obtained and that failure to obtain such leave rendered the interlocutory appeal incompetent. We were urged to strike out grounds 1 and 2 of the Cross Appellant’s Notice of Appeal as well as the issue formulated therefrom with the arguments in their support. The following cases were relied upon, B.O.S.I.E.C. V. KACHAKA (2005) ALL FWLR (PART 275) PAGE 518. USANI V. DUKE (2004) 7 NWLR (PART 871) 116. ABIOLA V. OLAWOYE (2006) 13 NWLR (PART 996) 1. OWONIBOYS TECHNICAL SERVICES LTD. V. U.B.N. LTD. (2003) 15 NWLR (PART 844) 545 and ADEBANJO V. OGUN STATE SPORTS COUNCIL (2005) ALL FWLR (PART 279 PAGE 1319 amongst others.

The Cross Appellant responded to the Preliminary Objection in his reply brief to the Appellant/1st Cross Respondent’s brief of argument dated and filed on 7th July, 2008. In the reply brief, the learned counsel to the Cross Appellant Oluwagbemiga Olatunji Esq., argued that the Preliminary Objection raised without filing a formal Notice of Preliminary Objection as prescribed by Order 10 Rule 1 of the Court of Appeal Rules, 2007 makes the Preliminary Objection incompetent, it was argued that the grounds of his objection were not set out as required by the rules. The cases of NSIRIM V. NSIRIM (1998) 3 NWLR (PART 138) 253 and MUSTAPHA V. NSHELIZAH (2003) FWLR (PART 183) PAGE 14 amongst others. We were urged to dismiss the objection.

No doubt Order 10 Rule 1 of the Court of Appeal Rules, 2007 requires that three clear days be given before the hearing. Setting out the grounds of the objection, sub Rule 3 provides that the Court ‘may’ refuse to entertain the objection or ‘may’ adjourn the hearing at the cost of the Respondent or ‘may’ make such other order as it thinks fit. Not following prescribed form is therefore not fatal. Election petition matters are in a special class of their own, where unlike regular civil procedures, does not allow for an immediate appeal against interlocutory rulings of the lower Tribunal.

It is trite that a party appealing against an interlocutory decision of the Court/Tribunal by incorporating same in the final appeal as has been done in the present case need not apply for an extension of time to appeal in respect of the interlocutory decision. The effect is that such interlocutory appeal becomes part of the main or substantial appeal.

Nothing therefore prevents the interlocutory decision being made subject or ground of appeal in the appeal against the final decision. See IBABUCHI V. EBIGBO (2000) FWLR (PART 17) PAGE 78 and FIRST BANK OF NIGERIA PLC V. TSOKWA (2003) FWLR (PART 153) PAGE 205 also cited and relied upon by the learned counsel to the Cross Appellant.

In the present case, the Cross Appellant did not appeal against the interlocutory decision refusing the amendment sought by the Cross Appellant as Petitioner; the Cross-Appellant could rightly do so in his Cross Appeal against the final decision without the need to seek for leave for extension of time to appeal against the interlocutory decision of the Tribunal. Moreso where the amendment sought and refused was treated in the judgment of the Tribunal (pages 419 – 420 of the records). Similarly in AMGBORE V. SYLVA (2008) ALL FWLR (PART 419) PAGE 576 it was held that such appeals, could more appropriately be filed along with the appeal against the final decision of the Tribunal at the conclusion of the trial of the petition, which is what the Cross Appellant has done. The resultant effect is that the objection is without merit and is hereby overruled.

The learned counsel to the Cross-Appellant had formulated six issues for determination in the Cross Appeal. In his Brief of Argument the learned counsel to the Cross Appellant, Oluwagbemiga Olatunji Esq., in respect of his first issue submitted that the Petitioner/Cross Appellant mistakenly described Ward 1 Unit 4 as Ward 1 Unit 3 and Ward 1 Unit 1 which was argued, was given its proper description as Community Centre, Iya in paragraphs 25, 26, 27 and 28 of the Petition, and in denial of the above paragraphs, the Appellant Cross/1st Respondent in his paragraph 16 at page 42 of the record also described it as such. Further that 2nd – 20th Respondents in their paragraphs 20, 21 and 24 of their reply (page 126 of the record) stated the results as recorded in Community Centre Iya polling Unit and gave the correct winner of the unit named as Unit 4, Ward 1. It was argued that the Tribunal ought not to have refused the Petitioner/Cross Appellant’s application for amendment as there was no doubt as to the polling Unit in issue, which is “Community Centre, Iya, and that the result was also pleaded and tendered as Exhibit PE3- No. 062305 which was not objected to. We were urged to set aside the Tribunal’s Ruling refusing the Cross Appellant’s application for amendment and allow same.

In the alternative, it was submitted that where a Plaintiff leads evidence in respect of the defendant’s pleadings the evidence is admissible, therefore that the evidence of the Petitioner in respect of Community Centre, Iya, Ward 1 Unit 4 is admissible as it was given by the Respondent, reliance was placed on the cases of BUHARI V. OBASANJO (2005) ALL FWLR (PART 273) 1, KINGIBE V. MAINA (2004) FWLR (PART 191) 1555 and TERAB V. LAWAL (1992) 3 NWLR (PART 231) PAGE 569. It was argued that the testimony of PW17 was not challenged on the Community Centre Iya and were not controverted by the Respondent and urged the Court to nullify the election in the said Ward 1 Unit 4 for the irregularity and non-compliance of overvoting and on the face of Exhibit PE3 No. 062305 which was not challenged or contradicted. The case of I.N.E.C V. KORSI (1999) 4 NWLR (PART 599) PAGE 341 was cited relied upon. We were urged to resolve issue one in favour of the Cross Appellant.

In respect of issue (b), the Cross Appellant as Petitioner in his petition alleged that no election held in Ward 7 Unit 1 and 2 as same was disrupted by the agents, thugs and supporters of the 1st Respondent and that the Electoral body made unlawful returns in respect of the Units as no party agent signed Exhibit PE3 No. 062344 made for Unit 1. It was argued that one Rasaki Oluwo was written as party agent for two different political parties AC and AA. We were urged to nullify the alleged purported returns made for Ward 7 Unit 1 as contained in Exhibit PE3No. 062344.

In respect of Unit 2 of Ward 7 it was submitted that no election took place even though returns were made which showed over balloting where no voting materials were supplied. We were urged to re-examine Exhibits PE3and 1st RE4, that is Form EC8A (i) for Ward 7 Unit 2. Further that the tribunal was wrong to have relied on Exhibit PE3, Nos. 062344 and 062345 to decide that election took place in the two Units. It was argued that at least one voter in each of the units should have been called to testify and to confirm that he voted at the election, alternatively the presiding officer or any official of INEC who participated in the conduct of the election should have been called to testify. INEC V. RAY (2005) ALL FWLR (PART 265) 1047 was cited and relied upon.

We were urged to nullify the results of the alleged purported election in Ward 7 Units 1 and 2 contained in Exhibit PE3 Nos. 062344 and 062345 relied on by the Tribunal in holding that election in the two Units were conclusive.

In respect of Issue (c), it was argued that the election in Ward 5 Unit 3 was disrupted and that evidence was led to that effect, it was also alleged that the polls closed earlier than the scheduled time, according to the testimonies of PW3, RW4 and PW17 (pages 27 – 28, 25, 26 and 29 of the records). It was alleged that voting commenced at 10.00 a.m. and ended at 12.00 noon instead of 3.00p.m. and that the 229 voters who could not vote would have cast their votes for the Cross Appellant who would have won, in that there were 312 registered voters and only 83 could vote, while 22 ballot papers were spoilt (not rejected).

It was argued that those who disrupted the voting were identified PDP thugs and party agents; one Abegunde Ojedeji was identified as one of the PDP agents. It was argued that because the voting exercise was disrupted, it ought to have been cancelled by the electoral body and rescheduled for a later date, learned counsel relied on the case of ENEMUO V. DURU (2006) ALL FWLR (PART 304) 503. It was submitted that the Cross Appellant proved that the thugs who disrupted the election acted with the said Abegunde Ojedeji, the 1st Respondent’s party agent at the unit.

Further that the 2nd – 20th Respondents called 2nd RW4 who claimed to be the Presiding Officer for Ward 5 Unit 3 whereas the Presiding Officer on record was one 5. O. Olabintan as entered on Exhibit PE3 No. 062332. It was also highlighted that Exhibit PE24 with serial No. 8036633 – 8036671, the register of voters for Ward 5 Unit 3, 110 names were accredited contrary to the content of Exhibit PE3 No. 062332 which rejected no votes and had 83 as the total number of valid votes which was irregular showing non-compliance with the Electoral Act, we were urged to cancel the election in Ward 5 Unit 3 and order fresh election in the Unit.

With the fourth issue, the allegation is that election did not hold in Ward 10 Unit 12 and that votes were allotted to the parties by the 20th Respondent with the collaboration of the 1st Cross Respondent. The Cross Appellant had tendered Exhibit PE3No. 062367 which is a certified copy of the alleged unlawful returns made in respect of the Unit, PW8 had also testified on behalf of the Cross Appellant to the effect that election did not hold in the Unit.

It was alleged that Exhibit 1st RW7 which is supposed to be a copy of Exhibit PE3 No. 062367 was forged and that the Tribunal ought not to have placed any probative value on Exhibit 1st RW7 and that the Tribunal should not have presumed regularity in favour of Exhibits 1st RW7 and PE3 No. 062363.

The contents of Exhibit PE23 the voters register was analysed to show that no election took place in Ward 10 Unit 12 on 14th April, 2007. We were urged to nullify the alleged purported result in the Unit as contained in Exhibit PE3 No. 062367 as no election held in the Unit in compliance with the Electoral Act.

With issue five, it was submitted that the Cross Appellant was able to show that the disruption of election and malpractice as alleged in Ward 5 Unit 3, Ward 7 Units 1 and 2 were by the agents of the 1st Cross Respondent and to his advantage. It was argued that through the evidence of PW3, PW4 and PW7 the Cross Appellant established that it was the 1st Cross Respondent’s agents that disrupted the election in Ward 5 Unit 3 after the supporters of the 1st Respondent had cast their votes remaining the supporters of the Cross Appellant. The case of HALI V. ATIKU (1999) 5 NWLR (PART 602) 186 was relied upon. It was submitted that the fact that they were agents of the 1st Respondent that disrupted the election was not challenged or discredited during cross-examination, it was submitted that this resulted in the 1st Cross Respondent being credited with 44 votes while the Cross Appellant was credited with 34 votes.

In respect of Ward 7 Units 1 and 2 as earlier reviewed, the contention is that no election took place; therefore nobody should have been credited with any vote. It was alleged that votes were allotted to the parties with bias for the 1st Respondent.

Further that the testimony of PW17 (Petitioner) Cross Appellant also linked the disruption of the election to the agents of the 1st Respondent which was not challenged, similarly the evidence of PW11and PW13. We were urged to hold that the nexus has been established as between the agent of the 1st Cross Respondent and the 1st Cross Respondent; we were urged to nullify the election in Ward 5 Unit 3 and Ward 7 Units 1 and 2.

In arguing his issue six the learned Cross Appellant’s counsel relied on the arguments already proffered in respect of issues 1 – 5. It was submitted further that over voting/balloting was proved in Ward 1 Unit 4 and that the result ought to be nullified by this Court, the Tribunal having failed to do so. With Ward 7 Units 1 and 2, reliance was placed on the submissions made in support of his issue two that there was no election in these two Units. The case of TORTI V. UKPABI (2007) 3 EPR 840 was cited. In respect of Ward 5 Unit 3, the argument on issue 3 was adopted, reliance was placed on the case of BASSEY V. YOUNG (2007) 3 EPR 456. In respect of Ward 10 Unit 12, the argument on issue 4 was adopted and reliance placed on the case of OLAJINLE V. ADEAGBO (1988) 2 NWLR (PART 75) 237. We were urged to nullify the election in the five Units being challenged by the Cross Appellant, as well as the three Units the Appellant urged us to nullify, and that once this is done that the Cross Appellant would lead the Appellant/Cross Respondent with a total figure of 203 and ought to be declared the winner of the election with the majority of lawful votes cast.

We were urged to declare the Cross Appellant as the winner of the election into Oyo State House of Assembly in Oorelope State Constituency.

In response to the issues formulated from the Cross Appellant’s grounds of Appeal, the following issues were distilled by the 1st Cross Respondent for determination by this Court:-

(i) Whether the Tribunal was not right in refusing the Cross Appellant’s application for the amendment of his Petition after the expiration of the statutory period available for such amendment.

(ii) Whether the Tribunal was not right in holding that there was no nexus between the Appellant/1st Cross Respondent and the alleged irregularities and their perpetrators.

(iii) Whether the Tribunal was not wrong in ordering a bye election in the entire Constituency.

In support of his first issue, it was submitted that by his petition the Cross Appellant pleaded irregularities in Ward 1 Unit 3 of Oorelope State Constituency, and made specific complaints against the Presiding Officer for the Unit, 7th Respondent, it was argued that nowhere was Ward 1 Unit 4 mentioned. Further that the result of the disputed election was declared on 14th April, 2007 while the application to amend was filed on 18th June, 2007, far outside the statutory 30 days provided for. It was argued that if the amendment was allowed it would have translated to an extension of time within which to sue a different person not sued originally within the statutory period. It was submitted that in paragraph 25 of the petition relied upon by the Cross Appellant to say that Community Centre Iyaa was the name to describe Ward 1 Unit 3 is not true as reference was only made in respect of Polling Unit 1 (Community Centre Iyaa) of Ward 1 is what was pleaded. It was argued that issues were not joined in respect of Ward 1 Unit 4, and that the Tribunal was right to have discountenanced the evidence led in respect of unpleaded facts, as it goes to no issue.

The following cases were cited and relied upon, HASHIDU V. GOJE (2003)15 NWLR (PART 843) 352, EDOSA V. ZACCALA (2006) ALL FWLR (PART 306) PAGE 881 and OJO V. GBURORO (2006) ALL FWLR (PART 316) PAGE 197. We were urged to resolve his first issue in favour of the 1st Cross Respondent.

In his second issue the learned senior counsel submitted that the Petitioner/Cross Appellant failed to discharge the evidential burden on him to link with positive, direct and cogent evidence, that the 1st Cross Respondent was connected with the alleged irregularities. It was submitted that there is no link between the Appellant/1st Cross Respondent with any of the acts of irregularity or non-compliance. It was further argued that since the allegations were criminal in nature there was need of proof beyond reasonable doubt by the Cross Appellant, by virtue of Section 138(1) and (2) of the Evidence Act. Reliance was placed on the cases of NNACHI V. IBOM (2004) 16 NWLR (PART 900) 614, FALAE V. OBASANJO (1999) 4 NWLR (PART 599), OYEGUN VS. IGBINEDION (1992) 1 NWLR (PART 226) 747 and AYUA V. ADASU-(1992) 3 NWLR (PART 231) 598.

We were urged to dismiss the Cross Appeal on this issue and urged to resolve same in favour of the 1st Cross Respondent and other Respondents.

In his third and last issue the learned senior counsel submitted that it was wrong in law for the Tribunal to have ordered a bye election in the circumstances of this case in view of the provisions of Section 54(4) and Section 146(1) of the Electoral Act, 2006 as well as the facts on ground, that is that the 1st Cross Respondent was still leading upon the deduction of the cancelled results in the affected three polling Units.

The case of BIU V. IBRAHIM (2005) ALL FWLR (PART 274) PAGE 261 was cited and relied upon. Further that the argument that the votes of the bye election could or would go the way of the Cross Appellant is speculative and hypothetical. Also the argument that the votes of the 1,500 registered voters, whose votes were alleged was capable of upsetting the result because the lead of the 1st Cross Respondent was a margin smaller than 1,500, is also speculative. We were urged to resolve this issue in favour of the 1st Cross Respondent, to allow the main appeal and dismiss the Cross Appeal in its entirety.

The 2nd – 22nd Respondents did not file anything but the 2nd – 20th Respondents relied on the main appeal.

I will resolve the Cross Appeal following the issues raised by the Cross Appellant. In the question as to whether the Tribunal rightly refused the Cross Appellant’s application for amendment of Unit 3 of Ward 1 (Community Centre, Iya) and discountenanced evidence led in respect of Community Centre, Iya by the parties, from the pleadings, paragraphs 25, 26, 27 and 28 of the petition all the complaints were in respect of Ward 1 Unit 3, Ward 1 Unit 4 was not mentioned. Section 141 of the Electoral Act, 2006 stipulates the period within which an Election Petition could be filed, that is 30 days from the date the result is declared while paragraph 14 of the 1st Schedule, to the Electoral Act, 2006 provided as to how and which amendment could be made after the expiration of 30 days. In this case the result was declared on 14th April, 2007 while the application to amend his petition was on 18th June, 2007, a period far outside the 30 days. In the present case, the question that arises is as to whether the amendment sought is material and substantial as to change the facts already in dispute between the parties. The Cross Appellant led evidence in respect of Ward 1 Unit 4 before the Tribunal. The learned counsel to the Cross Appellant stressed on his pleadings in paragraph 25 of the petition in that Ward 1 Unit 4 was appropriately described as Community Centre Iya but, a close look at the said paragraph makes it clear that the complaint of irregularities was in respect of Ward 1 Unit 3. In the same paragraph the result in Form EC8A (I) was mentioned to be in respect of Polling Unit 1 (Community Centre, Iya) Ward 1, which was pleaded by the Cross Appellant as petitioner. It is clear that the result pleaded by the Cross Appellant was in respect of Ward 1 Unit 1 described as Community Centre Iya not Ward 1 Unit 4 as argued before the Tribunal. What was referred to by name from the averment in paragraph 25 is Ward 1 Unit 1 and therefore erroneous to say that the Cross Appellant as Petitioner referred to Ward 1 Unit 4 by name. The resultant effect is that issues were not joined in respect of Ward 1 Unit 4 considering the pleading’s of the Appellant/1st Cross Respondents in paragraph 16, of his reply and paragraph 24 of the 2nd – 20th Respondents’ Reply to the Petition.

Further, if the amendment sought was granted by the Tribunal, it is substantial and material and would have made a person not joined as a party and whose conduct was not complained of in the original petition a party to the petition as rightly argued by the 1st Cross Respondent, this would also be fresh facts different from those pleaded in paragraphs 25 – 28 of the Cross Appellant’s petition. See P.D.P V. HARUNA (2004) 16 NWLR (PART 900) PAGE 608 AND JANG V. DARIYE (2003) 15 NWLR (PART 843), which held that after the expiration of the time for the presentation of the petition, no amendment of the Petition shall be made.

It is without doubt that the pleadings of the Cross Appellant as petitioner were in respect of Ward 3 Unit 1 and Ward 1 Unit 1 (Community Centre Iya) while the evidence led was in respect of Ward 1 Unit 4. The Tribunal was therefore right to have discountenanced the evidence led in respect of unpleaded facts as it is trite that evidence led as to unpleaded facts goes to no issue. See HASHIDU V. GOJE (2003) 15 NWLR (PART 843) PAGE 352 also cited by the learned senior counsel, where it was held that:-

“Any evidence led by a party which is at variance with his pleading sought to be discountenanced and disregarded as going to no issue and the Court should decide the case on legal evidence”.

Also see EDOSA V. ZACCALA (2006) ALL FWLR (PART 306) PAGE 881 and OJO V. GBURORO (2006) ALL FWLR (PART 316) PAGE 197.

The resultant effect is that the first issue is resolved against the Cross Appellant in favour of the 1st Cross Respondent.

The allegations in Ward 7 Units 1 and 2, and Ward 5 Unit 3 covered by issues two and three that elections were not held, because the election was disrupted by the agents of the 1st Cross Respondent that were identified as well as PDP thugs who were also identified, there was also allegation of impersonation of the proper presiding officers all of which caused early closure of the polls. From the printed records the Petitioner Cross Appellant failed to discharge the evidential burden on him to link all the alleged actors of irregularities with the Appellant/1st Cross Respondent.

In this case the law is that there must be a direct link between the perpetrators and the 1st Cross Respondent. To be held responsible, the Respondent whose election and return is being challenged must be clearly shown to be responsible for the irregular acts complained of which allegedly disrupted the polls. It has to be shown that he authorized such acts, anything short of this will exonerate the Respondent from any blame. There is nothing on record as it is, linking the Appellant/1st Cross Respondent with any act of irregularity or non-compliance as alleged in Ward 5 Unit 3, Ward 7 Units 1 and 2. It has not been shown that, he approved of the acts, before, during or after the said election as rightly argued by the learned senior counsel.

The Cross Appellant as petitioner led evidence through PW2, PW5, PW1 and himself as PW17 to show that the disturbances were by PDP thugs which was countered by the evidence of 2nd RW7 – The Electoral Officer who supervised the election, the 1st RW3, 1st RW6 (A Chairman of ANPP) and a neutral party, 2nd RW3 and 2nd RW8 candidates of Action Alliance and Democratic Peoples Party respectively, all asserted that the election was peaceful and conclusive in the majority of the Polling Units in the Constituency.

The allegations of thuggery ascribed to the 1st Cross Respondent is criminal in nature, the onus is therefore on the Cross Appellant to prove same beyond reasonable doubt by virtue of Section 138(1) and (2) of the Evidence Act. Seethe listed Wards on pages 35-40, 41-47 of the Petition. In NNACHI V. IBOM (2004) 16 NWLR (PART 900) 614 it was held that:

“Thuggery and violent disruption of election are criminal acts. It must be shown that the person causing acts of thuggery was an agent of the Respondent.”

For the 1st Cross Respondent to be responsible for the acts of the PDP thugs or agents there has to be proof that they acted with his definite authority and there has to be a direct link between the Appellant/1st Cross Respondent to the alleged irregularities. Also See FALAE V. OBASANJO (1999) 4 NWLR (PART 599) PAGE 476. OYEGUN V. IGBENEDION (1992).

In OLANIYI ADETUNJI (supra) a recent decision of this Division per M. D. MUHAMMAD J.C.A., at page 172 held in a similar situation as has arisen here thus:

“It remains the law that a candidate at an election cannot be held responsible for the criminal behaviour of others which behaviour he did not know of, authorized or subsequently ratified. Courts have been consistent in this resolve.”

Also see the cases of ANORZODO V. AUDU (1999) 4 NWLR (PART 600) 530 per Mustapher J.C.A. (as he then was) similarly relevant are the cases of YUSUF V. OBASANJO (2005) 18 NWLR (PART 956) PAGE 96 AT 164 and 174 – 175. also cases of ADEOLA V. OWOADE (1999) 9 NWLR (PART 617) 30. FALAE V. OBASANJO (NO.1) (1999) 4 NWLR (PART 599) PAGE 435. BUHARI V. OBASANJO (2005) 50 WRN 1; (005) 13 NWLR (PART 94 PAGE 1, and in my contributory judgment in OLANIYI’S case (supra) I did hold at page 177 thus:

“The law is that it must be shown that the person causing the acts of thuggery and violence were agents of the 1st Respondent (now appellant). The acts of violence or thuggery must be established to have a nexus between the perpetrators and the 1st Respondent; this has to be proved by evidence. See AJADI V. AJIBOLA (2003) 31 WRN 134; 2004 16 NWLR (PART 898) 91”

In NWOBODO V. ONOH (2004) 10 WRN 27; (1984) ALL NLR 1; (1984) 1 SC NLR 1 it was held that Section 138 (1) (then Section 137(1) imposes strict burden on the petitioner to prove the crime beyond reasonable doubt. If the Petitioner fails to discharge the burden his petition fails. In A. A. Augie’s JCA, contributory judgment in OLANIYI’S case (supra) at page 176 held on the scope of proof:

“Proof will include and comprehend everything that may be adduced at the trial, within legal rules for the purpose of producing conviction in the mind of the judge – See OTEKI V. A.-G., BENDEL STATE (1986) 2 NWLR (PART 24) 648; (1986) 4 S.C. 222.

The law is well settled that mere motive to commit an offence without any evidence of any act directly connecting a person cannot ground proof of such offence.

What is more, evidence of mere suspicion however strong cannot amount to such circumstantial evidence as to prove the commission of the offence. See ANAZODO V. AUDU (1999) 4 NWLR (PART 600) 530, AYUA V. ADASU AND ORS. (1992) 3 NWLR (PART 231) 598, KAUGAMA V. NEC AND ANOR. (1993) 3 NWLR (PART 284) 681 and MAMMA V. THE STATE (1976) 6 S.C. 115″.

From the plethora of legal authorities which binds this Court, it is clear that the Tribunal was right to have held that the Petitioner did not prove the allegations in issues (b), (c) and (d) beyond reasonable doubt as required by law, therefore these issues fail, the issues are resolve in favour of the Appellant/1st Cross Respondent and other Respondents.

Issues (e) and (f) merely adopted and reargued the issues of criminal acts that allegedly disrupted and affected the results in the five Wards and Units the Cross Appellant wants us to cancel, the issues have been extensively dealt with in resolving issues (b), (c) and (d) and there is no need to go over them all over again, in effect issues (a) – (f) are resolved against the Cross Appellant in favour of the Respondents.

In sum the Cross Appeal failed in its entirety, same is dismissed.

No order as to costs.

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Other Citations: (2009)LCN/3313(CA)