Mr. Friday Fred Omoigberai V. Joseph Foly Ogedengbe, Esq. & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI, J.C.A.

This is an appeal against the judgment of the Governorship and Legislative House Election Tribunal in Edo State, delivered on the 7th day of April, 2008. The judgment is at pages 1036-1098 of the record.

By the aforesaid judgment, the Tribunal allowed the petition, nullified the election and return of the then 1st Respondent now Appellant on the ground that Appellant was not qualified to contest the election held on 14th April 2007, as a member representing Owan East Constituency in the House of Assembly, Edo State. It ordered the 2nd Respondent to withdraw the Certificate of Return issued to the Appellant as person duly elected.

The Appellant was dissatisfied with the decision of the Tribunal. As such, the Appellant has appealed to this Honourable Court.

For the purpose of this appeal, the Appellant filed a Notice of Appeal containing thirty six (36) Grounds of Appeal. They are herein set out without particulars.

GROUND 1

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City misdirected themselves when they held that the failure of PW2 to append his signature in his deposition did not render the said deposition unusable.

GROUND 2

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the non endorsement of PW2’s deposition is not without a panacea and proceeded to invoke section 84 of the Evidence Act as a saving provision.

GROUND 3

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the prescription of section 4(2) of the Oath’s Act cap 333 Laws of the Federation 1990 salvages PW2’s deposition.

GROUND 4

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the deposition of PW2 is admissible and that same shall be used in the determination of this petition.

GROUND 5

The Learned Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they received and made use of the evidence in chief of PW2 in the proceedings. GROUND 6

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held thus:

“Nevertheless, if the Respondent thinks that the burden of proof lies with the Petitioner, the latter has discharged creditably that burden with the evidence just highlighted. In that perspective, the evidence (sic) burden, which in law fluctuates like a pendulum, shifts to the 1st Respondent to prove that the name Friday does not belong to him “.

GROUND 7

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City misdirected themselves in law when they admitted the Certified True Copy of the charge and proceedings in Charge No. SMRC/224R/97 as Exhibit 2 through PW2.

GROUND 8

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they admitted Exhibit 2 at the time they did in the proceedings in the petition.

GROUND 9

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the only way to dislodge the evidence of the Petitioner on the issue of the Appellant being an Ex-convict is for the Appellant to call somebody to claim the name and as the person mentioned in exhibits 2 and 26.

GROUND 10

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the 1st Respondent, Mr. Friday Fred Omoigberai, who was tried on 9th September,

1997 by the Mobile Revenue Court of Edo State and sentenced to two months imprisonment with hard Labour in default of paying his assessed tax of N17,000.00 is the same and one person as Hon. Fred Omoigberai who contested the election into Edo State House of Assembly in Owan East Constituency on 14th April, 2007.

GROUND 11

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the sentence in Exhibit 2 fulfilled the provision of Section 17 of the Criminal Code, Cap 48 Laws of Bendel State, 1976 applicable in Edo State and that same was proper.

GROUND 12

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the Exhibit 2 is as good as a Certificate of Conviction and same was admissible.

GROUND 13

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City misdirected themselves in law when they held as follows:

“Thus, dishonesty and fraud co-termineous. In Exhibit 2, the 1st Respondent was charged with default in paying his tax cannot be anything less than being clever by half This is because, to our mind, such default borders on deceit snowballing into dishonesty or fraud. This is more so when it is not apparent in Exhibit 2 that the default was not the fault of the 1st Respondent. ”

GROUND 14

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they wrongly interpreted Section 107(1) of the Constitution of the Federal Republic of Nigeria, 1999, by holding that the term “By whatever name called” is all embracing and accommodates all shades of offences allied to dishonesty or fraud and also signifies that the name with which the offence is christened is of no moment so long as it relates to fraud or dishonesty and further held that default in paying ones income tax fell squarely into the umbrella term.

GROUND 15

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the offence for which the 1st Respondent! Appellant was arraigned before PW2 in

Exhibit 2 involves dishonesty or fraud.

GROUND 16

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the 1st Respondent was not qualified to contest the Edo State House of Assembly Election of 14th April 2007 in Owan East Constituency.

GROUND 17

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they wrongly and/or failed to properly evaluate the evidence tendered before them and cancelled election in Ward 2 Unit 9, 3, 4, 10 Unit 6 and 11 on the ground that the election in those Wards and Units were riddled with unpardonable irregularities.

GROUND 18

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the election conducted in Ward 2, Units 9, 3, 4, 10, Units 6 and 11 were not conducted in substantial compliance with the Electoral Act, 2006 and proceeded to cancel or invalidate same.

GROUND 19

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City misdirected themselves when they engaged themselves in the act of subtraction of votes scored by the candidates in Ward 2 Unit 9, 3, 4, 10 Units 6 and 11.

GROUND 20

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that PDP’s lead in the election is ineffectual and barren because the Tribunal had declared its candidate, the pt Respondent, ineligible to vie for the election.

GROUND 21

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held that the Petitioner has established that he is entitled to be declared and returned as the winner of the Edo State House of Assembly election held on 14th April, 2007 in Owan East Constituency.

GROUND 22

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they invoke the provision of Section 147(2) of the Electoral Act, 2006 in favour of the Petitioner.

GROUND 23

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they granted the prayers of the Petitioner and ordered as follows:

“(a) that the 1st Respondent, Mr. Friday Fred Omoigberai or Hon. Fred Omoigberai, was qualified at the time of the election to the House of Assembly in Owan East Constituency to contest the said election on 14th April, 2007;

(b) that the declaration of the 1st Respondent, Mr. Friday Fred Omoigberai, as the person elected or returned by the 2nd Respondent (INEC) as the winner of the election questioned in this petition is nullified;

(c) that the Petitioner, Joseph Foly Ogedengbe, Esq., be and is hereby declared validly elected or returned having polled the highest number of lawful votes among the lawful candidates;

(d) that the Certificate of Return previously issued to the 1st Respondent, Mr. Friday Fred Omoigberai or Hon. Fred Omoigberai, by the 2nd Respondent (INEC) withdrawn forthwith;

(e) that the Petitioner, Joseph Foly Ogedengbe, Esq., be issued with Certificate of Return forthwith by the 2nd Respondent (INEC) as the duly elected representative of Owan East Constituency in Edo State House of Assembly; and that parties bear respective costs of prosecuting this petition.

GROUND 24

The judgment is against the weight of evidence

GROUND 25

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when it held that Mobile Revenue Court Edict No.2 of 1996 repealed the Revenue Court Edict 1995 and proceeded to hold that the Mobile Revenue Court sitting at Sabongida Ora had jurisdiction to hear and try the Charge in Exhibit 2.

GROUND 26

The Learned Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they received both oral and documentary evidence from the Petitioner and his witnesses when such statements, deposition on oath, documents and oral evidence were not front loaded nor where they together with the facts on which oral evidence was led, pleaded.

GROUND 27

The Learned Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they admitted Exhibit 49.

GROUND 28

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they admitted Exhibit 26 and 45.

GROUND 29

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when it allowed PW2 to adopt his statement/deposition on oath.

GROUND 30

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they deducted the votes alleged to have been scored by the parties in Ward 9 from their final scores.

GROUND 31

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when it held:

“We compared the two beautiful photographs (which are the same) in the open court with his pretty physique and we hold the view, indeed without any equivocation, that they are the exact replica of his image.”

GROUND 32

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when it held that the Appellant told a lie in regards to the date he stated business.

GROUND 33

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when it held:

“Aside from that, the description of the property comprised in Exhibit 26 in the schedule, at the testimonies of that exhibit, is on all fours with his particulars of his town of origin extracted from him during cross-examination. Ditto for the address of the holder of Exhibit 2, Mr. Friday Fred Omoigberai, at the cradle of that document, the particular of the survey plan stand witched in Exhibit 26, made in the name of the holder, Mr. Fred Friday Omoigberai, is no less a pointer to RW21’s town of origin. ”

GROUND 34

The Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they undertook a microscopic examination and investigation of the exhibits tendered in the proceedings and based their finding on such exercise.

GROUND 35

The Learned Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they held thus:

“The documentary evidence have vindicated the Petitioner as saying the truth that the election in Wards 2, Units 9, 3, 4, 10, units 6 and 11 was riddled with unpardonable irregularities. In consequence of that, we hereby cancel the results in those units and wards. Our finding on this second limb then is that there were instances of non-compliance with the provisions of Electoral Act, 2006 regarding the units and wards being complained of by the Petitioner”.

GROUND 36

The Learned Chairman and members of the National Assembly/Governorship and House of Assembly Election Petition Tribunal at Benin City erred in law when they assumed jurisdiction over the issue of disqualification of the Appellant

The Petitioner/Respondent also Cross-Appealed and his Cross-Appeal was numbered as EPT/163/08. In line with the practice of this court, briefs were filed and exchanged by parties.

When the case came up for hearing E.L. Akpofure SAN leading counsel to the Appellant in the main appeal referred to his brief titled 2nd Further Amended Brief and his reply brief dated 17/4/09 but deemed properly filed on 20/4/09. Mr. Ken Mozia leading counsel to the 1st Respondent in the main appeal referred to his Further Amended 1st Respondent Brief filed on 30/3/09 and also referred to his Notice of Preliminary Objection dated 9/3/09 filed on 10/3/09. In respect of EPT/283/07 he filed a Notice of Preliminary Objection. Mr. Mozia’s brief in respect of the Cross-Appeal was filed on 16/6/08.

Mr. Alegbe for the 2nd to 10th Respondents filed his own brief on 31/3/09 in respect of EPT/162/08 which is the main appeal and that was the only process filed by him.

In respect of the Cross-Appeal, Mr. Akpofure SAN has a brief dated and filed on 28/1/09 and a Preliminary Objection filed on 30/1/09. He adopted his brief in respect of the main appeal and stressed in paragraph 5.24-5.37 at pages 60-62 of the Appellant’s Further Amended Brief and Exhibit 2 and also Edict No. 2 which confers jurisdiction on Revenue Court is limited to only the sum of N7,000.0. Refer to Section 64(2) of the Revenue Court Law. He argued that the court acted in excess of its jurisdiction. He urged the court to disregard the purported conviction and he urged the court to allow the Appeal of the Appellant and dismiss the Cross-Appeal.

Mr. Alegbe for the 2nd to 10th Respondent adopted and relied on his brief dated 23/3/09 and filed on 31/3/09 and he urged the court to allow the appeal. Mr. K.E. Mozia, in respect of the main appeal relied on his Respondent’s Brief dated and filed on 30/3/09. He adopted and relied on the brief. And in respect of his Cross-Appeal which is numbered EPT/163/08 he relied on his brief dated 16/6/09 filed same day. He observed that there is no Cross-Appellant Brief by the other parties. They therefore are deemed to have conceded to the appeal. He urged the court to dismiss the interlocutory appeal and the main appeal.

THE MAIN APPEAL

In his Appellants 2nd Further Amended Brief of Argument. In his issue for determination, the Appellant distilled 24 issues for determination, they are hereby set out.

“The issues for determination distillable In this appeal as follows:

1) Whether the Tribunal was right when it held that the failure of PW2 to append his signature on his deposition, did not render the said deposition unusable. (Ground 1.)

2) Whether the Tribunal was right when it held that the non endorsement of the deposition of PW2 is not without a panacea. (Ground 2).

3) Whether the Tribunal was right when it held that Section 4(2) of the Oaths Act Cap 333 Laws of the Federation, 1990 salvages the deposition of PW2. (Ground 3.)

4) Whether the Tribunal was right when it allowed PW2 to adopt his deposition of PW2. (Ground 4).

5) Whether in the circumstances of this case, the Tribunal was right when it held that the Petitioner had creditably discharged the burden placed on him by law and that the burden of proof is on the Appellant to establish that Friday is not part of his name. (Grounds 6 & 9).

6) Whether the Tribunal was right when it admitted the Certified True Copy if the charge and proceedings in Charge No. SMRC/24R/97. (Grounds 7 and 8)

7) Whether the Tribunal was right when it held that the person tried on 9tll September, 1997 by the Mobile Revenue Court of Edo State and sentenced to two months imprisonment with hard labour in default of paying his assessed tax of N17,000.00 is the same and one person as Hon. Fred Omoigberai who contested the election into the Edo State House of Assembly in Owan East Constituency on 14th April 2007. (Ground 10)

8) Whether the Tribunal was right when it held that there was proper sentence and conviction of the Appellant in Exhibit 2 and same was, therefore admissible. (Ground 12)

9) Whether the Tribunal was right in its definition and application of dishonesty, fraud and its interpretation and application of Section 107(1) of the Constitution of the Federal Republic of Nigeria 1999. (Grounds 13 & 14)

10) Whether the Tribunal was right when it held that the offence for which the Appellant was arraigned before PW2 in Exhibit 2 involves dishonesty or fraud. (Ground 15)

11) Whether the Tribunal was right when it held that the Appellant was not qualified to contest the Edo State House of Assembly Election of 14th April, 2007 in Owan East Constituency. (Grounds 16 & 20)

12) Whether the Tribunal properly evaluated the evidence led in this petition especially in Ward 2 unit 9, Wards 3,4,10 unit 6 and ward 11 before arriving at its decision touching on the said wards and units. (Grounds 17, 18, 19 and 24).

13) Whether the Tribunal was right when it held that the Petitioner had established that he is the winner of the Edo State House of Assembly election held on 1ih April, 2007 in Owan East Constituency. (Grounds 21).

14) Whether the Tribunal was right when it invoked the Provision of Section 147(2) of the Electoral Act, in favour of the Petitioner. (Ground 22).

15) Whether the Tribunal was right when it granted prayers A, B, C & D of the Petition. (Ground 23).

16) Whether the Tribunal was right when it held that the Mobile Revenue Court Edict 1996, repealed the Revenue Court Edict 1995 and thereafter proceeded to hold that the Mobile Revenue Court sitting at Sabongida Ora had jurisdiction to hear and try charge in Exhibit 2. (Ground 25).

17) Whether the Tribunal was right when it admitted exhibits 26 and 45. (Ground 25)

18) Whether the Tribunal was right when it received both oral and documentary evidence from the Petitioner and his witnesses and acted on same in arriving at its decision. (Grounds 5 and 26).

19) Whether the Tribunal was right when it allowed PW2 to adopt his statement/deposition on oath. (Ground 29)

20) Whether the Tribunal was right when after canceling/nullifying the election in Ward 9 proceeded to and deducted scores allegedly said to have been scored by the parties in the said ward from the final scores of the parties. (Ground 30).

21) Whether the Tribunal was right when it compared passport photographs in Exhibits 26 and 45 with the physique of the Appellant together with other materials including those relating to date in Exhibit 45 and the date of commencement of business by Appellant to come to the conclusion that the Appellant is one and the same person convicted by PW2 in Exhibit 2.

(Grounds 31, 32 and 33)

22) Whether the Tribunal was right when it undertook a microscopic examination and investigation of the exhibits tendered in the proceedings and based their findings on such exercise. (Ground 34).

23) Whether the Tribunal was right when it cancelled the election of the Appellant on the ground of non-compliance in spite of the fact that on the same facts it had earlier held that the Petitioners failed to establish corrupt practices. (Ground 35).

24) Whether the Tribunal was right when it assumed jurisdiction and determined the sound of disqualification of the Appellant in the petition.

The Appellant decided to argue issue 24 as to whether the lower tribunal was right when it assumed jurisdiction and determined the ground of disqualification of the Appellant in the petition. I think this is the most important issue to be decided. Once it is decided one way or the other the necessity of going in to other issues will be determined.

In this argument, he said the issue is being argued in the alternative to issues 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, 19 and 21 because of positive resolution of the issue automatically makes issue 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, 19 and 21 to be spent in his argument, he quoted Section 285(2) of the Constitution which establishes tribunals in the state” which shall to the exclusion of any court or tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any Legislative House”.

He argued that it is clear from the above provision that the jurisdiction of the tribunal is not at large but limited to hearing and determination of petitions relating to whether any person has been validly elected. Section 285(2) does not clothe the tribunal with the power to investigate what transpired before the election. He argued that such is a pre-election matter which is provided for in Section 32 (4) of the Electoral Act 2006. He argued that paragraph 4(b), (c), and (d) of the petition at pages 2 & 3 of the Record deals with alleged conviction of the Appellant in Charge No. SMRC/24R/97. He said the said conviction took place several years before the election of the Appellant which said election is now being challenged. He cited in aid the case of ORJI V. UGOCHUKWU & 2 ORS (Unreported) decided on 11/2/09 at page 1 particularly at page 79.

He argued that the issue of whether or not the Appellant herein is a convict or not has nothing to do with the conduct of the election. He finally submitted that the lower tribunal was in error when it assumed jurisdiction over the ground of disqualification of the Appellant on the basis of ground of an alleged conviction of the Appellant sometimes on 9/9/97 a period of over nine years before the date of the election of 14th April, 2007 and proceeded to hold that the Appellant was disqualified at the time of the election and therefore nullified his election as the member representing Owan East Constituency in the House of Assembly in Edo State. The 1st Respondent distilled 8 issues for determination which is quoted hereunder:

“In the opinion of the 1st Respondent, rather than the plethora of repetitive and confusing issues identified by the Appellant, the following issues arise for consideration and determination in this appeal:

1) Whether the witness statement of PW2 including his testimony under cross-examination and those of the other witnesses for the Petitioner were not legal evidence capable of being acted upon by the Tribunal; (Grounds 1, 2, 3, 4, 5,26,29 of the Further Amended Notice of Appeal).

2) Having found as a fact that the 1st Respondent successfully established that the Appellant is also Friday Fred Omoigberai, was the Tribunal not right in holding that the burden of proof at that point, shifted to the Appellant to establish as alleged by him, that he does not also bear the name Friday; (Grounds 6, 27, 28, 31).

3) Whether the finding by the Tribunal that the Appellant was the same person tried, found liable and sentenced in Charge No. SMRC/24R/97 was perverse and unsupported by credible evidence; (Grounds 7, 8, 9, 10, 11).

4) Whether the Tribunal was right in holding that the 1st Respondent successfully establish a case of disqualification of the Appellant under Section 107(1) (c) and (d) of the Constitution of the Federal Republic of Nigeria, 1999; (Grounds 12, 13, 14, 15, 16, 20).

5) Were there oral and documentary evidence in support of the decision of the Tribunal to void the elections in Ward 2 Unit 9, Wards 3, 4, 10, Unit 6 and Ward 11? (Grounds 17, 18, 19, 35).

6) Was Charge No. SMRC/24R/97 based on an existing law at the material time, and was the Tribunal right in finding that the Appellant did not succeed in establishing want of jurisdiction in any respect over the charge as formulated? (Ground 25)

7) Whether the Tribunal adequately reviewed the totality of the evidence adduced and whether their findings of fact are perverse in any material respect? (Ground 21, 22, 23, 24, 30, 32, 33, 34)

8) Whether the Tribunal had the jurisdiction to consider the ground of the petition that alleged disqualification of the Appellant. ”

Issue No.4 as distilled is similar to Issue 24 distilled by the Appellant. When Issue 4 is merged with Issue No.8, the result will be the same in the consideration of Issue 24 of the Appellant. In arguing Issues Nos. 3, 4 and 6 together the 1st Respondent in his argument referred to a number of pages in the record to support the findings and conclusions of the Tribunal and further argued that Election Petitions are neither Civil nor Criminal proceedings, they are sui generis and are thus peculiar to themselves. This was judicially affirmed in MAIGAJI V. BALA (2004) 1 WRN 51 at 77 where the court held that “This is not an ordinary civil proceeding. Election Petitions are sui generis”. Referred also to BUHARI V. YUSUF (2003) 40 WRN at 124 at 126 where it was held that “The Proceedings are special for which special provisions are made under the constitution.” He also referred to Section 225 (2) of the Evidence Act. He argued that from the records the conviction of the Appellant was proved beyond reasonable doubt. The 1st Respondent refers to Exhibit 2 which is the certified record of proceedings and argued that the Mobile Revenue Court Edict No 2, 1996 did not feature at all in Edict 2. He argued that the tribunal had jurisdiction over the matter and therefore the issues be resolved in favour of the 1st Respondent. The 2nd to 10th Respondent filed a brief of argument attacking the judgment and to this the 2nd to 10th Respondents filed a Notice of Objection on the ground that the 2nd to 10th Respondents are not Appellants in the appeal and neither have they filed any Notice or Cross-Appeal therefore the 2nd to 10th Respondents’ Brief of Argument attacking the judgment of the lower tribunal is not based on any Notice or Cross-Appeal. He argued that the 2nd to 10th Respondents did not appeal against the judgment neither did they file any notice to that effect. The traditional role of a Respondent is to argue in favour of the judgment or give notice of intension not to support the judgment. The brief filed by the 2nd to 10th Respondent attacking the judgment is incompetent. See OGUMA V. IBWA (1988) 1 NWLR (Pt 93) 658 ASPER AGBAJE JSC at 668 and AFRICAN SEA WAYS LTD V. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD (1977) 3 SC 235 ASPER IRIKEFE JSC at 247. Paragraph 5 (a), (b) (c) and (d) of the petition reads, I quote:

“The grounds upon which the Petitioner is questioning the election and return of the 1st Respondent by the 2nd Respondent are as follows:

(a) That at the time of the election the 1st Respondent was a person who within a period of less than ten (10) years before the date of the election to the House of Assembly, had been convicted and sentenced for an offence involving dishonesty;

(b) On 09/09/07, the 1st Respondent being the Respondent in Charge No. SMRC/24R/97: Board of Internal Revenue v. Mr. Friday F. Omoigberai pleaded liable to an Amended Charge of defaulting in paying his income tax assessed at N17,000.00 which is an offence under the Mobile Revenue Court Edict, 1995 of Bendel State and he was found liable on his plead by a Senior Magistrate Grade II.

(c) In the same charge, the 1st Respondent was sentenced to pay the assessed “current” tax of N17,000.00 failing which he was to be committed to prison for two (2) months I.H.L.A. Certified True Copy of the proceedings in Charge No. SMRC/24R/97 from 28/8/97 – 9/9/97 shall be founded upon.

(d) The Petitioner shall contend that default to pay income tax being an offence under the Mobile Revenue Court Edict, 1995 involves dishonesty.”

The facts and evidence relating to this paragraph are well established and considered by the Tribunal. The Tribunal had evaluated the evidence as contained in the record. It is now settled law that it is only where a trial court has erred in evaluating the facts found by it only then can an appellate court reexamine the whole facts and come to an independent conclusion as the court of trial. See EBANCHI V. STATE (2009) VOL. 30 WRN 1 FATOYINBO V. WILLIAMS 1956 SCNLR 274 AND BENMAX V AUSTIN MOTOR CO. LTD. 1955 AC 370.

I do not see any of the issues raised in evidence before the lower tribunal that were not well treated or considered. This was their duty and to me they did well. The Tribunal was satisfied as to the identity of the person named in Exhibit 2 which is Charge No. SMRC/24R/97 Board of Internal Revenue V. Mr. Friday Fred Omoigberai.

The facts established that the person named therein is the same person returned in this election. The concluding part of the judgment reads and I quote:

“Nevertheless, the PDP’s lead in that election is ineffectual and barren. This is because the rug has been pulled out from its feet when the Tribunal declared its candidate the rt Respondent, ineligible to vie for that election ab initio. By that electoral disability, it has played into the hands of the runner up, the A C, whose candidate, the Petitioner, will step into his, rt Respondent’s shoes. Our finding on this issue No. (5) therefore, is that the Petitioner has established that he is entitled to be declared and returned as the winner of the Edo State House of Assembly election held on 14th April, 2007 in Owan East Constituency. With the Petitioner coasting to victory in his main prayers, the consideration of his alternative and further alternative reliefs becomes surplus to requirements. And that is quite in tune with the law. See ODEJIDE JI: FAGBO (2004) 8 NWLR (Part 874) 1. We venture to invoke the provision of Section 147(2) of the Electoral Act 2006 in favour of the Petitioner having scored majority of all the votes cast among the lawful contestants in that election …………………………..

The Petitioner’s petition yields fruit and his main prayers granted accordingly, we hereby order:

(a) that the 1st Respondent, Mr. Friday Fred Omoigberai or Hon. Fred Omoigberai, was disqualified at the time of the election to the House of Assembly in Owan East Constituency to contest the said election on 14th April, 2007;

(b) that the declaration of the 1st Respondent, Mr. Friday Fred Omoigberai or Hon. Fred Omoigberai, as the person elected or returned by the 2nd Respondent (INEC) as the winner of the election questioned in this petition is nullified;.

(c) that the Petitioner Joseph Foly Ogedengbe, Esq. be and is hereby declared validly elected or returned having polled the highest number of lawful votes among the lawful candidates;

(d) that the Certificate of Return previously issued to the 1st Respondent, Mr. Friday Fred Omoigberai or Hon. Fred Omoigberai, by the 2nd Respondent (INEC) withdrawn forthwith;

(e) that the Petitioner, Joseph Foly Ogedengbe, Esq., be issued with Certificate of Return forthwith by the 2nd Respondent (INEC) as the duly elected representative of Owan East Constituency in Edo State House of Assembly and

(f) that parties bear the respective costs of prosecuting this petition

The Appellant argued vehemently that the issue of disqualification is a pre-election matter and that only the normal courts have jurisdiction. Section 107 of the Constitution of the Federal Republic of Nigeria provides as follows:

“Section 107 (1): No person shall be qualified for election to House of Assembly if:

(a) ………………………………………..

(b) …………………………………………

(c) …………………………………………

(d) within a period of less than 10 years before date of election to the House of Assembly he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of contravention of the Code of Conduct. ”

This Section must be read with Section 145 1(a) of the Electoral Act 2006 which provides that an election may be questioned on any of the following grounds:

“(a) that a person whose election is questioned was at the time of the election not qualified to contest the election”. When the Constitution is read together with Section 145 of the Electoral Act, an election can be questioned on the ground that the candidate returned as elected was at the time of such purported election not qualified to contest. That is to say where the person returned by INEC as at the time of the said election did not meet the constitutional requirement as would enable him to contest such election, he cannot be said to be qualified to contest such elections.

Election Petitions are sui generis; special in nature, character and class and are not ordinarily classified along with civil proceedings. They are therefore, specially treated or handled, simply because it is not the candidates whom are interested in the election. So if a candidate is disqualified, the electorate who would have voted for him are thereby disenfranchised or denied their rights of choice. But if he were permitted to contest he could be removed in an election petition if he was eventually found to be ineligible to contest or disqualified. See WAZIRI V. ALI (2009) ALL FWLR (Pt 458) 1712, Page 1745 Paras D-F AYUA V. ADASU (1992) 3 NWLR (Pt. 231) 610 OBI V. MBAKWE (1984) 1 SC 325, (1984) 1 SC NLR 192.

The Supreme Court in the case of HOPE DEMOCRATIC PARTY V. INEC (2009) 37 NSCOR VOL. 37 PART II held that it is very clear that combined reading of Section 145 (1) and Paragraph 4 (1) of the First Schedule of the Electoral Act clearly sets out four distinct grounds for presenting an election petition as non-qualification of the candidate returned etc.

To my mind, a candidate can only be said to have been validly elected if and only if as at the time he contested the election he was qualified to contest same. Therefore the election tribunal established for that purpose has jurisdiction to determine such issues.

Let me at this stage decide on the interlocutory appeal by the Appellant, the records the tribunal allows the amendment and a number of witnesses with documents. In line with the evidence available to determine the identity of the Appellant in Exhibit 2, I repeat here that it should be noted that though election petitions are said to be sui generis, they are concerned with the political rights and obligations of the people particularly those who consider their rights injured 24 by the electoral process and need to ventilate their grievances. Such people ought to be encouraged to do so with some latitude knowing that in the process of initiating proceedings to ventilate their grievances, mistakes may occur. Since the intention of the Electoral Act and other laws employed in litigation are geared towards ensuring that substantial justice is done to the parties at the expense of technicalities and conclusion that tends to shut out an aggrieved party from the temple of justice by not hearing it on merit ought not to be encouraged in the interest of peace and democracy. Per W.S.N. ONNOGHEN JSC in HOPE DEMOCRATIC PARTY V. INEC SUPRA.

With this in mind the interlocutory appeal lacks merit and it is dismissed. As I have said earlier on, it is not always right for the appellate court to disturb the findings of fact by a trial court, this is a rule with exceptions but the facts in this case do not fall on such exceptions.

The identity of the person in Exhibit 2 having been established that it is the Appellant in this appeal, can it be said that having regard to Exhibit 2 he was qualified ab initio to contest the election complained of? On the face of Exhibit 2, was there a conviction as to disqualify the Appellant?

Conviction, according to Oxford Advanced Learners Dictionary 6th Edition states; “Finding subject guilty of a crime in court of law, the act of having been found guilty, sentence of not more than five years imprisonment”. Convict in Universal Dictionary & The Saurus by Geddes & Grosset is defined as “to prove or pronounced guilty”. In Guide to Words and Phrase and Doctrine in Nigeria Law by P.A. Omomale J, Paragraph 1263 reads; “In ordinary parlance, to convict means simply to find guilty.” But in law a person is “convicted” when he has been found guilty and sentenced for an offence BURGESS V. BOETE FEUR 13 L.S.M.C. 126 and ‘sentence’ includes ordering the person found guilty to be bound over to enter into recognizance to be of good behaviour or to come for judgment if called upon, JEPHSON V. BANKER 3.T.LR. 40. The Appellant was charged with the offence of default in the payment of income tax of N17,000.00 and thereby committed an offence contrary to Section 5(2) Regulations 1 of the First Schedule and punishable under Section 8 of the Mobile Revenue Court Edict 1995. The punishment section of the said Mobile Revenue Court Edict Section 8 provides that “Any person who commits any offence to which the Edict relates shall in addition to the penalties specified in the laws dealing with the matter in Schedule 1 be liable on summary conviction to a fine of N500.00 or to imprisonment for two months.” The said Edict provides for any aggrieved party to appeal from such decision to the High Court within 30 days. Let me quote from the proceedings i.e. Exhibit 2;

“Court: The amended charge is read and, explained to the Defendant in English

Defendant: Liable

Order I find the Defendant liable on his own plea

Allocutus;

Mr. Amu: We plead that the Defendant tender justice with mercy. He has never defaulted in tax payment before. He even paid some tax in 1977. He did not intend to cheat the Government of Revenue.

Records: Nil

Sentence:

It appears that the question is one of adequacy of tax payment. I shall not therefore treat the Defendant as a defaulter. Accordingly, I make order that the Defendant do pay the assessed current tax of N17,000.00. In default, he will be committed to prison for 2 months I.H.. ”

In AGBI V. OGBEH (2003) 15 NWLR (Pt 493) at 532, Oguntade has this to say “The primary meaning of the word ‘conviction’ denotes the judicial determination of a case. It is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilt followed by sentence a conviction is complete as soon as the person charged has been found or has pleaded guilty.

I have carefully considered the brilliant argument of the Learned Senior Advocate for the Appellant but I beg to say they would have been more useful in an appeal against that conviction and sentence. In view of the above, I hold that the Appellant was not qualified to contest the election complained of ab initio as he is disqualified under Section 107(1)(c) of the Constitution of the Federal Republic of Nigeria. In view of this conclusion, the Cross-Appeal together with the Preliminary Objection of the 1st Respondent are of no moment and they are struck out.

Consideration of other issues will be of no use but an academic exercise. In effect, the appeal is unmeritorious and it is dismissed. The judgment of the lower tribunal is affirmed as follows:

(a) That the 1st Respondent/Appellant, Mr. Friday Fred Omoigberai or Hon. Fred Omoigberai was disqualified at the time the election to the House of Assembly on Owan East Constituency to contest the election on 14/4/07;

(b) That the declaration of the said Friday Fred Omoigberai or Hon. Fred Omoigberai as the person elected or returned by the INEC as the winner of election questioned in the petition is nullified;

(c) That Joseph Foly Ogedengbe Esq. be and is hereby declared validly elected or returned having polled the highest number of lawful votes among the lawful and qualified candidates;

(d) That the Certificate of Return previously issued to Friday Omoigberai or Hon Fred Omoigberai by INEC be withdrawn;

(e) That Joseph Foly Ogedengbe Esq. be issued with Certificate of Return forthwith by INEC as the duly elected representative of Owan East Constituency in Edo State House of Assembly;

(f) That the Speaker of Edo State House of Assembly shall swear in Joseph Foly Ogedengbe Esq. as member representing Owan East Constituency in Edo State House of Assembly without any undue delay.

Cost of 30,000.00 is awarded to the 1st Respondent.

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Other Citations: (2009)LCN/3406(CA)