Barrister Moji Okedui Abimbola & Anor. V. Mr. Moruf Olawale Atilola & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
MODUPE FASANMI, J.C.A.
The facts briefly are that by a petition dated 14th May 2007, the Petitioners Mrs. Moji Okediji Abimbola and the Labour Party challenged the declaration and return of the 1st Respondent Mr. Moruff Olawale Atilola who was sponsored by the 2nd Respondent for the Election of 14/4/2007 conducted by the Independent National Electoral Commission into the Oyo State House of Assembly Election in respect of Oyo East & West Local Government Constituency. The grounds are stated in paragraph 13 of the Amended Petition thus:-
(1) The 1st Respondent was not duly elected by a majority of the lawful votes cast at the election.
(2) The election and return of the 1st Respondent is invalid by reason of corrupt practices and non-compliance with the Electoral Act 2006 and
(3) The 3rd Respondent did not comply with Electoral Act 2006 by their failure to display the voters register before the election of 14/4/2007.
In accordance with the provisions of the Election and Practice Direction 2007 a pre-hearing session was concluded on 9/10/07 where the parties agreed and settled issues to be determined at the hearing. At the close of same, the parties proceeded to adduce evidence.
The amended petition is at pages 117-130 of the record. 1st & 2nd Respondent’s reply is at pages 52-57 of the record. The 3rd-7th Respondents reply is at pages 136-139 of the record of proceedings.
The Petitioners/Appellants called 11 witnesses in proof of their petition. 1st & 2nd Respondents called 2 witnesses while the 3rd – 7th Respondents called 2 witnesses in rebuttal of the petitioners case. At the close of the case of the parties and addresses of Counsel, the Tribunal dismissed the petition. The petitioners being dissatisfied with the judgment of the Tribunal filed a notice of appeal dated 10th December 2007 containing 5 grounds of appeal at pages 261-264 of the record.
Appellants filed their brief of argument before this court on the 12th of May 2008. 1st and 2nd Respondents brief of argument was filed on the 19th of May 2008 and 3rd-7th Respondents filed their brief of argument on the 20th of May 2008.
At the hearing of the appeal, learned Counsel for the Appellants adopted his brief but sought the leave of the court to refer to the case of Osunbor vs. Oshiomole unreported CA/B/EPT/179A/2007 delivered on the 11th of November 2008 where it was held that non-joinder of Electoral Officers, Presiding Officers, Returning Officers as parties to a petition will not void the petition as long as I.N.E.C. is a party because they are agents of I.N.E.C. Learned Counsel for the Appellants formulated two issues from the five grounds in the notice of appeal for the court’s determination as follows:-
(1) Whether the non joinder of the Presiding Officers in the wards and units complained of was fatal to the petition of the Petitioners.
(2) Whether in view of the acts of violence, thuggery and malpractices carried out by the 1st & 2nd Respondents and its Agents in some units and wards of Oyo East/West Constituency of Oyo State of Assembly, the lower Tribunal ought to consider the evidence placed before it and examine exhibits PE8 and PE9 in the light of the evidence before it by cancelling the results of the units affected and nullifying the election return of the 1st Respondent.
Learned Counsel for the 1st & 2nd Respondents at the hearing also adopted her brief of argument filed on the 19th of May 2008 and formulated two issues for determination as well. They are hereunder reproduced.
(1) What is the materiality of the Tribunal’s holding that the non-joinder of the Presiding Officers in the wards and units complained of was fatal to the petition.
(2) Whether the Petitioner proved his allegation of violence, thuggery and malpractices levelled against the 1st & 2nd Respondents to warrant the nullification of the election.
The learned Counsel for the 3rd – 7th Respondents also adopted her brief argument filed on the 20th of May 2008 and also formulated two issues for determination as well. They are:-
(1) Whether it was necessary to join Electoral Official and their agents at the polling stations affected as a party to the Election in view of the provisions of section 144 (2) of the Electoral Act 2006.
(2) Whether the Petitioners on the state of pleading and evidence have shown or proved any act(s) of corrupt practices and/or non-compliance with the Electoral Act 2006 and/or any substantial non compliance which has substantially affected the result of the election into the Oyo East/West State Constituency.
The issues formulated by the parties are all embracing as they cover the essential issues raised for the determination of the appeal. I will therefore deal with the issues raised by the Appellants as they cover the essential issues raised for the determination of this appeal.
Learned Counsel for the Appellants on issue one submits that the provisions of section 144(2) of the Electoral Act 2006 has made it clear as to who are the necessary parties to an election petition. He submits further that it is not mandatory to join the Presiding Officers at the polling stations to an election petition. All that is required is to establish that the people who were at the polling station acted as agents of Independent National Electoral Commission and once that is done it will not be necessary to join the Presiding Officers. He further argued that the lower Tribunal did not give the provisions of section 144 (2) of the Electoral Act 2006 their ordinary, clear and unambiguous meaning. He cited the cases of Mobil Oil Nig. Ltd VS. Federal board of Inland Revenue (1977) 3 S.C at 53 and Nablan v. Nablan (1967) A.N.L.R. at 47. He argued further that the Appellants’ evidence remained unchallenged since the 3rd – 7th Respondents failed to call evidence of the units and wards affected by the petition by calling their agents and officials at the polling stations affected to testify before the Tribunal. He urged the court to set aside the decision of the Tribunal on the failure of non-joinder and hold that the petitioners have proved the malpractices and irregularities at the polling stations.
Learned Counsel for the 1st & 2nd Respondents on issue one in reply submits that the lower Tribunal did not void the petition on the ground of non-joinder of the Electoral Officers but because the tribunal found the petition lacking in substance. She submits that where a court evaluates the evidence and appraised the facts, it is not the business of a Court of Appeal to substitute its own views for that of the trial court or Tribunal. She referred to the case of Digai v. Nanchang (2005) All. F.W.L.R (pt.240) page 41 at 58 paragraphs D-E. He urges the court to resolve the issue against the Appellant.
learned Counsel for the 3rd -7th Respondents submitted on issue one that Appellants argument is misconceived because the Lower Tribunal came to the conclusion that the Appellants did not substantiate their allegation of malpractices and that the non-joinder of the Electoral Officials alleged to have perpetrated criminal offences will infringe on their fundamental right to fair hearing as provided under section 36 of the Constitution of the Federal Republic of Nigeria 1999. She referred to the cases of Chianson vs. Igba (2004) All. F.W.L.R part (224) page 1977 at 2025, Egolum vs. Obasanjo &. Ors. (1999) 5 S.C.N.J page 92 at 125-126 and Barrister Paul Ubom & 1 Another vs. Mseyon A. Amaka (1999) 6 N.W.L.R part 605 page 99 at 108 paragraphs B-C and page 113 paragraphs C-D. She submitted further that the non-joinder deprives the court or Tribunal the requisite jurisdiction to entertain the petition. With the leave of the court she referred to the case of Alhaii Dikko Yusuf vs. Obasanjo (2006) 2 E.P.R page 30 particularly at 33 ratio 4;Tafida vs. Bafarawa (1999) 4 N.W.L.R part 597 at 70, Kaliel v. Aliero (1999) 4 N.W.L.R Part 597 at 139 and Lamido vs. Turaki (1999) 4 N.W.L.R Part 600 at 578. She urges the court to resolve the issue against the Appellant.
Above are arguments and submissions of the learned counsel copiously canvassed for their respective parties in their brief of arguments in respect of issue one. What does the Electoral Act 2006 say on joinder or non-joinder of parties? Section 144 subsection 2 provides the answer as follows:
“The person whose election is complained of is in this Act referred to as the Respondent but if the Petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to void the petition if the commission is made a party.”
A court has an obligation to give effect to words used in a statute that appear to be plain and unambiguous.
In interpretation of a statute once the words are clear, ordinary meaning of the words in it are given to them. See the cases of Buhari v. Obasanjo (2005) All F.W.L.R Part 273 page 1 at pages 133-134 paragraphs H-A. See also Dimegwu v. Ogunewe (2008) 17 N.W.L.R Part 1116 page 358 at 383, Ogunmade v. Fadayiro (1972) 8-9 SC at 1, U.B.A Plc. v. Akparabong Commercial Bank (Nig) Ltd (2005) 12 N.W.L.R (Part 939) at page 232. In the instant case, the Petitioners joined I.N.E.C. as the 3rd Respondent in the petition and in the appeal before this court. Paragraph 15 of the Amended Petition at page 119 of the records stated that the Presiding Officer and the Returning Officers in the various units and the wards complained off were the agents of the 3rd Respondent i.e. I.N.E.C. For the Tribunal to hold that these Presiding Officers were not joined in the petition to answer to these allegations will amount to be seeking extraneous aid in interpreting section 144 subsection 2 of the Electoral Act 2006. By the provisions of this section, it is clear and unequivocal that Electoral Officers, Presiding Officers and Returning Officers are agents of I.N.E.C and as long as I.N.E.C is a party to the petition, the fact that officials in the units and wards complained off were not joined as parties themselves will not operate to void the petition. See the case of I.N.E.C & 19 others v. Comrade Adams Aliyu Oshiomole and 3 others (Unreported) Appeal No.CA/B/179A/2007 of 11th November 2008. Issue one is hereby resolved in favour of the Appellants.
On issue two, learned Counsel for the Appellants submitted that the Petitioners’ witnesses made statements on oath and testified during the proceedings at pages 200 Q-200FF. He submitted further that election can only be said to have complied substantially with the Electoral Act, if same was conducted in such a manner that it can be said to be free and fair. An election bedevilled with violence, thuggery, acts of intimidation of voters cannot be said to be free and fair. He referred to the cases of Ojukwu v. Onwudiwe (1984) 1 S.C page 15 at 91, Adeleke v. Oloruntobi (1992) 2 L.R.E.CN at 136. He argued further that the evidence of the Petitioners witnesses on the violence, thuggery and intimidation remained unchallenged and that evidence which remains unchallenged ought to be relied upon and acted on. He referred to Omoregbe v. Lawani (1981) 4 S.C at 108, Lacoed v. Edun (2004) All F.W.L.R Part 201 page 1628 at 1642 paragraph H and 1643 at paragraph A. He urged the court not to allow the 1st and 2nd Respondents to benefit from their undemocratic values. The difference between the votes cast showed that the Petitioner/Appellant had 402 votes more than the 1st Respondent. He urged the court to set aside the decision of the lower tribunal and cancel elections of units, wards affected by malpractices, violence and thuggery because whatever acts of violence and thuggery unleashed in the units and wards of Oyo East/West by the 2nd Respondent will definitely not be for other parties but for its own candidate i.e. 1st Respondent and finally that this court should return the 1st Petitioner/Appellant as having won the election into Oyo East and West Constituency of Oyo State House of Assembly.
Learned Counsel for the 1st and 2nd Respondents submits that the Appellants are questioning the election and return of the 1st Respondent on grounds that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act and that the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
Section 145 (1) (b) and (c) of the Electoral Act 2006.
She submitted that the evidence of violence, thuggery, acts of intimidation of voters put forward by the Petitioners were totally discredited under cross examinations. She argued that where evidence adduced has been so discredited under cross examination, a court has no choice than to disbelieve the evidence. She referred to the case of Gaji vs. Paje (2003) 8 N.W.LR Part 823 at 583. She submitted that the Respondents called evidence in rebuttal of the Petitioners evidence through the 1st Respondent, 1st RW, 3rd R.W and 3rd R.w2. She went further to state that the Appellants failed woefully to prove the allegations of violence, malpractices and thuggery. She cited Ogu VS. Ekweremadu (2005) All. FW.L.R Part 260 at page 1. Even though the Appellants questioned the result of the election, they still went ahead to tender Exhibits PE8 and PE9 which are Forms EC8A (i) from Oyo East and West polling units. The Appellants contend that they are not in agreement with the content of Exhibits PE8 and PE9, they offered no contrary evidence inpugning the genuity of Exhibits PE8 and PE9.
She further submitted that the vote margin between the Appellant and the 1st Respondent was 1,264. She urged the court to uphold the decision of the lower Tribunal that election was not conducted in one unit of the 199 units making up the constituency. The non-holding of election at the unit was held not to be substantial as to affect the result of the election as the number of disenfranchised voters at the unit was only 149.
Learned Counsel for the 3rd-7th Respondents on issue 2 submits that the 3rd-7th Respondents called 3rd R.W1, Adedokun Johnson, the Electoral Officer, Oyo East and 3rd R.w2 Mrs Ogun Catherine, Electoral Officer, Oyo West. They mentioned that the election in the two Local Government Areas were peaceful and devoid of any malpractices except Obanako, Unit 9, a result of burning of ballot papers. She submitted that the Appellants must succeed on the strength of their case and not on the weakness of the defence unless they find the evidence of the defence which strengthens their case. She referred to the cases of Nwobodo VS. Onoh (2004) 10 W.R.N page 27 at 96 and Jang vs. Dariye (2003) 15 N.W.L.R Part 843 at 436. Learned Counsel for the 3rd-7th Respondents submitted that the Appellants did not prove their case before the Lower tribunal. She urges the court to hold that the tribunal properly evaluated the evidence of all the parties and came to a just conclusion and that the Appellants appeal should be dismissed.
In resolving this issue, it is pertinent to ask a question. How did the Appellants link the 1st Respondent with the alleged violence, thuggery and malpractices in breach of the Electoral Act 2006. It is true that the Appellants pleaded acts of thuggery, violence, intimidation and corrupt practices. These acts were copiously pleaded by the Appellants in paragraphs 15, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32 and 34 of the Amended Petition. They enumerated the units and wards affected by the malpractices. It is the law that where an allegation of crime is raised, the allegation must be proved beyond reasonable doubt. See Section 138 (1) and (2) of the Evidence Act. The evidence of all the witnesses to the Appellants including the Appellants is to the effect that the election in the units and wards enumerated were marred by malpractices perpetrated by Ramoni Ganiyu, Kazeem Okediji and Peoples Democratic Party thugs. 1st Appellant and all her witnesses stated categorically that they never saw the 1st Respondent with either Ramoni Ganiyu, Kazeem Okediji or the Peoples Democratic Party (P.D.P) thugs.The law is settled that where the Petitioner fails to establish agency relationship between the perpetrators of the alleged acts of violence with a candidate returned as the winner of the Election, then he cannot attribute any offence committed by the agent to the candidate. See Adediran vs. Ladapo (1991) 1 L.R.C.N at page 110, Opia VS. Ibru (1992) 3 N.W.L.R part 23, at 658 and Falae vs. Obasanjo (1994) 4 N.W.L.R Part 599 at 476. Also the Court of Appeal in the case of Waliu Bafarawa (2004) 16 N.W.L.R Part 898 page 1 at 45 it was held that “a candidate in an election cannot be held responsible for what other people did in form of unsolicited act of which the candidate or his agent was ignorant” The Appellants have failed to establish any nexus between the 1st Respondent and the alleged perpetrators of the malpractices. See also Ogunbiyi vs. Ogundipe (1992) 9 N.W.L.R. Part 263 at 23. It has not been established that the malpractices were traceable to the 1st Respondent.
While the Appellants can say that the conclusions arising from the evaluation of the evidence are not in their favour, they cannot say that there was no evaluation.
The Tribunal considered the evidence placed before it and made its findings. At page 242 lines 5-12 of the record, the tribunal had this to say.
“P.W1-PW3 in their oral testimony maintained that the Elections were not concluded in their units due to the disruptions and so did not sign form EC8A (i), the results of the election from their respective polling units.
However the results from these units as contained in form ECBA(i) from the 12 units of ward 3 clearly showed that they were signed by the Labour Party agents and All Nigeria Peoples Party agents contrary to the assertion of these witnesses”.
Also at page 242 lines 21-23 and 243 lines 1-3 of the Record, the Tribunal had this to say. “It is instructive to note that exhibit PE9(iii) tendered by the 1st Petitioner, both polling units at Oluwatedo open space and Baptist Primary School Oluwatedo are in ward 6 and not 5 or ward 3. It is demonstrably clear that the testimony of P.w4 and P.W5 are at variance or sharp conflict with exhibit PE9(iii) tendered by the Petitioners.
The Petitioners pleaded in paragraph 27 that Oluwatedo Village unit is in ward 6 Oyo-West”.
It is glaring that the evidence of the witnesses are at variance with their pleadings in the amended petition. It is the law that where pleadings are at variance with the evidence led or vice-versa, the whole evidence in that regard go to no issue. See Njiokwuemeni v. Ochei (2004) 15 N.W.L.R. Part 196 at 236, Bala vs. Bankole (1986) 3 N.W.L.R. Part 27 at 141, Kalgo vs. Kalgo (1999) 6 N.W.L.R. Part 608 at 639 and Nwabuku vs. Onwordi (2002) 2 N.W.L.R. Part 755 at 558. In the instant case, the evidence of P.w4 and P.w5 as to the fact of disruption of election in respect of Baptist Primary School Oluwatedo and open space unit Oluwatedo go to no issue.
The Tribunal also found that P.W6, P.W7, PW8, Pw.9 averred that they did not sign the result form EC8A(i). P.w10 stated that the agents of the party were forced to sign the result sheets in ward 6. It should be noted that the unit 11 Egbo-Aje was signed by one Segun Afonja, All Nigeria Peoples Party (A.N.P.P) party agent where P.W8 officiated as All Nigeria Peoples Party (A.N.P.P.) party agent.
At page 246 of the record, the Tribunal evaluated the disputed results where it stated thus. There is also the corollary issue of the petitioners disputing the results forms EC8A(i) particularly exhibits PE8(i) PE8(ii), PE8(iii), PE9(i) and PE9(ii). The 1st Petitioner in her oral testimony stated that she is disputing the figures contained therein because those are the units marred by violence and all sorts of irregularities. It is worthy of note that the said exhibits PE8 and PE9 were all tendered in evidence by the 1st Petitioner and therefore forms part of her case”.
There is a presumption in favour of any result declared by I.N.E.C to be genuine, legal and authentic. The burden of proving otherwise rests squarely on the person who challenges the result who in the instant case are the Appellants: See Agballah vs. Nnamani (2005) All F.W.L.R. Part 245 at 1052. The said exhibits PE8 and PE9 are forms EC8A (i).
Declaration of results by Independent National Electoral Commission. 1st Petitioner in her evidence averred that she is disputing the figures contained in the said exhibits PE8 and PE9. A petitioner who is questioning the accuracy of the result of an election is required to plead and lead
evidence in respect of two sets of results one he alleges is wrong and the correct one to enable the Tribunal compare. See Moghalu v. Ngige (2005) 4 N.W.L.R. Part 914 page 1 at 36. The Petitioners have failed to do this. The allegation therefore remains unsubstantiated. I therefore hold that unsubstantiated allegations contained in a petition cannot be relied upon to nullify an election. Where a document tendered by the Petitioners in proof of their assertion does not on its face show irregularity, the court would hold that the election was conducted in a substantial compliance with the principle of the Electoral Act. See Buhari VS. Obasanjo (2005) 2 N.W.L.R Part 910 page 241 at 4198. The accuracy of exhibits PE8 and PE9 are not in law disputed by mere ipse dixit of a petitioner. The Tribunal rightly held that the Petitioners have not shown by any scientilla of evidence the accuracy in figures contained in exhibits PE8 and PE9 she is disputing. The Tribunal noted specifically that it was only in ward 5 unit 9 Obanako that 3rd Respondent (I.N.E.C.) entered a nil result for the candidates and after reviewing the facts pleaded and the evidence, the Tribunal found that the election in the unit was inconclusive. In the instant petition, the Tribunal found that from the evidence and pleadings, the number of disenfranchised voters in unit 9, ward 5 Obanako that the registered voters is 149. The margin between the scores of the 1st Respondent and the 1st Petitioner is 1,264 votes. It is crystal clear that 149 votes is incapable of upsetting the total number of 1,264 votes with which the 1st Respondent defeated the 1st Petitioner since winning or losing of election is a question of numbers and figures. The failure of the 3rd Respondent to hold a fresh election in unit 9 ward 5 Obanako as not substantially affected the result of the entire Oyo East/West Local Government Constituency by virtue of section 27 subsection 4 of the Electoral Act 2006 and also by virtue of section 146 (1) of the Electoral Act 2006 which states:
“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 Electoral 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.”
It is the law that where the Petitioner has established the substantiality of the non-compliance with section 145 (2) of the Electoral Act but has failed to establish the substantiality of this non-compliance on the result of the election the issue will be resolved in favour of the Respondents. See Kundu vs. Aliyu (1992) 3 N.W.L.R. Part 231 at 598.
The findings of the Tribunal as enumerated in the judgment with those that have been reproduced in the body of this judgment are not perverse and I will not interfere with them. It is trite that an Appellate court will not interfere with the judgment of the learned trial judge who had the advantage of seeing and observing the demeanors of the witnesses called by the parties except where it is apparent there is a miscarriage of justice and or that the judgment is perverse. See Mogaji vs. Odofin (1978) 4 S.C at 91, Woluchem vs. Gudi (1981) 2 S.C. at 291 Ezekwesili vs. Agbapuonwu (2003) 9 N.W.L.R. Part 825 at 337 and Iniama vs. Akpabio (2008) 17 N.W.L.R. Part 1116 page 225 at 348 paragraphs B-C and 356 paragraph H.
Issue two is hereby resolved in favour of the Respondents.
Finally since the overriding issue raised in the appeal is resolved in favour of the Respondents, the appeal lacks merit and it is accordingly dismissed.
Parties are hereby ordered to bear their respective costs.
Other Citations: (2009)LCN/3153(CA)
