Chief Onwuka Kalu (a.k.a.) Okpuzu V. Dr. Kalu Orji Johnson Uzor & Ors.(2005)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
This is an appeal against the judgment of The Governorship and Legislative Houses Election Tribunal dated 16th August, 2005. The appellant was the petitioner in an Election Petition filed in the said Governorship and Legislative Houses Tribunal holden at Umuahia, Abia State. The appellant and the 1st respondent herein were contestants at the gubernatorial elections, concerning the Governorship of Abia State, held on the 19th of April, 2003.
The 1st respondent was returned as duly elected by the Independent National Electoral Commission (INEC) and being dissatisfied with the result, the appellant filed the said petition challenging the 1st respondent’s return. The petition is at pages 1 – 3 of the printed record. The respondents satisfied all the preliminaries including filing their respective memoranda of appearance. The 1st respondent filed a reply to the petition which incorporated a notice of preliminary objection. In addition, the 1st respondent filed a motion on notice indicating the grounds of objection to the competence of the petition. The 2nd – 6th respondents, similarly, filed a separate notice of preliminary objection. Both objections were heard by the Tribunal and a ruling was delivered on June 13, 2005 by which the petition was struck out.
Dissatisfied with the ruling of the tribunal, the appellant appealed to the Court of Appeal. The Court of Appeal ordered that the petition be remitted to a fresh panel for hearing on the merit of the petition. Against that order, the 1st respondent filed an appeal at the Supreme Court which said appeal was struck out by the apex court for want of jurisdiction. The petition was thereafter heard by a new panel. At the hearing on merit, the petitioner called twenty-seven witnesses and also testified in person. The 1st respondent did not testify but called eight witnesses. The 2nd to 6th respondents elected not to call any witness and after hearing the addresses of all counsel to the parties, the tribunal delivered a well considered judgment and dismissed the petition as unmeritorious. It is against that judgment that the appellant has again appealed to this court.
The appellant has filed twenty-seven grounds of appeal (see pages 531- 554 of the record). There is a cross-appeal by the 2nd – 6th respondents (see pages 555 – 558) of the record. The 1st respondent has however challenged the jurisdiction of this court to hear the appeal by reason of a notice of preliminary objection dated the 20th September, 2005.From the twenty-seven grounds of appeal, the appellant raised thirteen issues for determination. They read:
Issue 1
3.01 “Whether the learned tribunal approached the pleadings by the parties in the suit correctly, and if not, whether that did not affect its decision in the case.
(This issue is distilled from grounds 1, 22 & 26)
Issue 2
3.02 Whether the tribunal was right in holding that the standard of proof required to establish the petition or grounds of the petition was not satisfied in this case?
(This issue is distilled from ground 4 & 9).
Issue 3
3.03 Whether the allegation of crime was directly issue in the petition so that it will require proof of the petition beyond reasonable doubt. (This issue is distilled from ground 10).
Issue 4
3.04 If the answer to issue No.3 above is in the affirmative, whether the said allegation, was fully and effective abandoned by the appellant so that the petition may now be determined on the balance of probabilities, the criminal aspect having been severed from civil aspect.
This issue is distilled from grounds 11. 12 & 20).
Issue 5
3.05 Whether the Election Tribunal was right when it failed to strike out the 2nd – 6th respondents’ reply, when no evidence was called in support of their reply.
(This issue is distilled from ground 8).
Issue 6
3.06 Whether the provisions of s. 149(d) of the Evidence Act ought to apply against the petitioner/appellant.
(This issue is distilled from ground 25 & 27).
Issue 7
3.07 Whether the Election Tribunal was right in failing to apply the necessary presumption of law under section 149 (d) of the Evidence Act against the respondents when they had the carbonated and originals of the polling units result but refused to produce them.
(This issue is distilled from ground 17).
Issue 8
3.08 Whether the documents marked ID 1-ID 1-1395 were admissible as primary evidence?
(This issue is distilled from grounds 2, 3, 6 & 21).
3.09 Whether the Election Tribunal was right in law by excluding the petitioner/appellant’s admissible oral and documentary evidence. (This issue is distilled from grounds 7 & 19).
Issue 10
3.10 Whether the lower tribunal was not wrong in rejecting and expunging the appellant’s evidence as to the total number of votes scored by him and the 1st respondent at the election as well as the number of votes scored by each, and their respective percentages in the various local governments of Abia State.
(This issue is distilled from grounds 5, 15 & 23).
Issue 11
3.11 Whether the appellant pleaded two sets of results in the petition.
(This issue is distilled from ground 24)
Issue 12
3.12 Whether, by the pleaded facts and evidence, (oral and documentary), the appellant did not prove his case.
(This issue is distilled from grounds 14 & 14). )
Issue 13
3.13 Whether the petitioner has successfully established the facts and grounds on which he relies for his prayer.”
The first respondent formulated one issue for the determination of this appeal.
It is as follows:
“Whether the tribunal below was right when it held that the appellant (as petitioner) has failed to prove the petition and whether the order dismissing the petition was justified having regard to the circumstances.”
The second to sixth respondents on their part formulated two issues for the determination of this appeal. They read thus:
“1. Whether the tribunal was right in holding that the allegations of criminality made by the appellant is at the root of his petition and that the doctrine of severance of pleadings did not apply in the circumstances.
- Whether the tribunal was right in holding that the appellant did not prove that he won majority of the lawful votes cast at the election and had 25% of the votes cast in 2/3 of the 17 Local Government Areas in Abia State.
I hasten to point out that at the hearing of this appeal on 16th November, 2005, Mr. Livy Uzoukwu for the 2nd – 6th respondents told us that he would like to withdraw their notice of cross-appeal at pages 555 to 558 of the record.
The oral application was not opposed by the other counsel in this appeal. The notice of the cross-appeal of the 2nd – 6th respondents was accordingly struck out by us. In other words there is no longer any cross-appeal in this matter. It must be mentioned also that the 2nd – 6th respondents did not file a cross-appellant brief. I need say no more about that.
Before I consider the issues formulated by the parties, I consider it necessary at this point in time to consider the 1st respondent’s notice of preliminary objection and the argument thereon.
The 1st respondent’s objection against the notice of appeal is to the effect that… “each of the grounds of appeal contained therein is either a ground anchored on facts or on mixed law and facts, or is replete with argument and narratives and no prior leave either of this court or of the court below having been sought and obtained.” Essentially therefore, the 1st respondent’s complaint against the grounds of appeal contained in the appellant’s notice of appeal is that each of the said grounds of appeal is incompetent either because the grounds are on facts or concern mixed law and facts or is replete with arguments and narratives or contain a conclusion.
The appellant’s reply brief is not a reply brief in consonance with the rules of this court. But be that as it may, the so called reply brief to my mind is a repetition of the appellant’s brief and is loaded with other extraneous matters that should not be in a reply brief. Having said that, I make bold to say that the purported reply brief is of no moment to this appeal and it should therefore be discountenanced. In any case, if the appellant’s grounds of appeal are competent, I will so hold even without a reply brief.
There are litanies of cases dealing with how to test the efficacy of grounds of appeal. To mention just a few, see: Ade Coker v. United Bank for Africa Plc. (1997) 2 NWLR. (Pt.490) 641: Excel Plastic Industry Ltd. v. First Bank of Nigeria Plc. (2005) 11 NWLR (Pt.935) 59; Nwabueze v. Nwora (2005) 8 NWLR (Pt.926) 1; (2005) All FWLR. (Pt.255) 1000; Engineer Nura Khalil v. Umaru Musa Yar’Adua & Ors. (2003) 16 NWLR (Pt.847) 446. From the above authorities, I am of the strong view that a ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. It must in other words, give the exact particulars of the mistake, error or misdirection alleged and a ground of appeal without particulars, save the general or omnibus ground, is defective and incompetent. A ground of appeal must not be argumentative or narrative in compliance with Order 3 rule 2 of the Court of Appeal Rules, 2002. If it is, it ceases to be a ground of appeal but an argument or a narration which rightful place in a proceeding of a court or tribunal is at the hearing of the appeal. In no way should the particulars be independent complaints from the appeal itself but should be auxiliary to it. Any ground of appeal which is argumentative, unnecessarily lengthy, elaborate, vague and which contain detailed reasons may be struck out.
In the instant case, all the grounds of appeal and their particulars are unwieldy, argumentative and incomprehensible. The particulars supplied in support of the grounds are in direct conflict with Order 3, rule 2 of the Court of Appeal Rules, 2002. See Oge v. Ede (1995) 3 NWLR (Pt.385) 564; Agbaje v. Younan (1974) 3 WACA66; C.B.N v. Okojie (2002) 8 NWLR (Pt.768) 48.
It seems to me in the final result, that the 1st respondent has demonstrated to non-viability of each of the 27 grounds of appeal contained in the notice of appeal. In my view, each, and accordingly, all the grounds of appeal are incompetent and there being no grounds of appeal, the appeal in any normal circumstance ought to be struck out.
However, this is not and should not be the end of the matter. From the nature of the case in hand and assuming that I am wrong in the views which I hold in respect of the grounds of appeal, that is, their competence, I will still in the interest of justice and considering the fact that this court is the final court in this matter consider the appeal on its merit.
However, I take significant cognizance of the fact that the appellant formulated thirteen issues for determination. I take the view that the appellant’s approach, to say the least, is inelegant, clumsy, dull and prolix and is calculated to cover-up the real issues in controversy between the parties to this appeal. It seems to me that all the issues formulated in the appellant’s brief can be encompassed in the two issues formulated in the brief of the 2nd – 6th respondents.
The said two issues have direct bearing to the bone of contention in this appeal and should determine the appeal one way or the other. The two issues have been reproduced herein before and I do not consider it necessary to reproduce them here again. Having said that, I should now treat this appeal in the light of the two issues formulated in the brief of the 2nd – 6th respondents.
Issue one is the same one and the same thing as issue No.3 in the appellant’s brief. It was submitted for the appellant that the sole ground on which the matter was heard at the lower tribunal will be found in the first paragraph 4(i) of the petition. It was contended that a look at that paragraph will show that it did not allege any crime against any of the respondents. It was submitted further that a further look at paragraph 4(iv), (v) and (vii) will show that an attempt was made by the petitioner to raise issue of alteration at ward, local government and state levels in favour of the 1st respondent by the 3rd, 5th and 6th respondents. It was argued that these allegations are at best feeble. It was contended that the issue of criminality did not actually arise in the proceedings to make the petition one that will require proof beyond reasonable doubt.
For the 1st respondent it was contended that allegation of crime was directly in issue in the petition so that it will require proof of the petition beyond reasonable doubt.
Learned counsel for the 2nd to 6th respondents on their first issue for determination said that it is instructive to note, that the appellant had set out the result as declared wherein the 1st respondent scored 540,983 votes and the appellant 51,496. It is the contention of the respondents that they all admitted the appellant’s pleadings in that regard.
The 2nd to 6th respondents stated in their brief that emerging from the pleadings of the appellant are the following clear allegations:
(1) The votes of 540,983 credited to the 1st respondent were unlawful or invalid.
(2) The votes of 540,983 credited to the 1st respondent arose as a result of inflation and alterations of votes which were done on forms used for the collation of results.
(3) The alleged inflation and alteration were carried out at wards, local governments and state collating centres and the perpetrators were the 3rd to 6th respondents.
(4) The full particulars of the alteration shall be given after interrogatories, discoveries and inspection of electoral documents.
(5) By deducting the unlawful or invalid votes which resulted from inflation and alteration of results in favour of the 1st respondent, the lawful votes will show that the appellant is the winner of the election.
It was further submitted for the 2nd to 6th respondents that the record of proceedings of the court below showed that the appellant was granted leave on 21st May, 2003 to inspect results and all electoral documents and he did that.
Without much ado, I must say that
it is trite law that pleadings delimit and determine the scope and province of the legal ring for parties to prosecute and defend their respective case. It is the foundation of the success or failure of a case.
It must be mentioned also that parties are bound by their pleadings and will not be allowed to set up in court a case which was at variance with the pleadings. See Ehimare v. Emhonyon (1985) 1NWLR (Pt.2) 177; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71; Meta limp ex v. A.-G., Leventis (Nig.) Ltd. (1976) 2 SC 91; Ochonma v. Unosi (1965) NMLR 321.
In Ojong v. Duke (2003) 14 NWLR (Pt.841) 581 at 618; it was held as follows:
“In litigation, the necessity of providing for certainty can hardly be over emphasized. Otherwise the judicial process stands to collapse sequel to the heat which uncertainty and attendant confusion would create. Invariably, therefore, all legal actions are expected to be exact and precise. Election petitions being conually unique, more than others, must be distinctly precise.”
I have no doubt in my mind that on the state of the appellant’s pleadings, he clearly and unequivocally anchored his petition on the shores of criminality. The foundation or the root of his petition is built on criminal offences of fraud, forgery, falsification of results and dereliction of duty.
It is settled law that when allegations of corrupt practices or electoral offences are made in an election petition; they must be proved beyond reasonable doubt that indeed they were committed. When that is done there is yet a second hurdle to scale through. In other words, where generally corrupt practice or offence is alleged in an election, to invalidate the election, the petitioner must prove the alleged practice or offence in addition to the following:
(a) That the 1st respondent personally committed the corrupt act or aided, abetted, etc the alleged commission of the alleged corrupt practice or offence;
(b) That where the alleged act was committed through an agent, the said agent must have been authorized by the 1st respondent.
(c) That the corrupt practice or offence affected the outcome of the election and how it affected it.
(d) The petitioner must go further to prove that but for the corrupt practice he would have won the election. See Section 138(1) of the Evidence Act; section 122(2) of the Electoral Act; Oyegun v. Igbinedion (1992) 2 NWLR (Pt.226) 747 at 759-760; Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 at 708 to 709; Ebebe v. Ezellduka (1998) 7 NWLR (Pt.556) 74; Haruna v. Modibbo (2004) 16 NWLR (Pt.900) 487 at 561.
It is settled law that altering a document amounts to forgery. See Imam v. Sheriff (2005) 4 NWLR (Pt. 914) 80 at 162 to 163. The petitioner is under a duty to plead particulars of fraud. See Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) at 151 to 152.
It is also trite law that a petitioner alleging inflation of figures needs to further prove his allegation by giving particulars of the inflated figures and by also showing that if the inflated figures were taken from the votes credited to his opponent, the result would change in his favour. See Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 168-169; Izuogu v. Udenwa (1999) 6 NWLR (Pt.608) 582.
It should be noted that in paragraph 4(iv) of the petition, the appellant pleaded that “the full particulars of the alterations made shall be given after interrogatories, discoveries and inspection of electoral documents.” He made application to that effect and it was granted on 21st May, 2003.
I am of the view that the above pleading is an acknowledgement by the appellant that detailed particulars were crucial to his case.
Contrary to the foregoing undertaking, the appellant after the application was granted and the inspection carried out, provided no detailed or full particulars or even any particulars. It seems to me therefore that the appellant had something to hide.
As I have said above, the case of the appellant at the tribunal was anchored on criminality. Having regard to the total failure of the appellant to prove the allegations of criminality in his petition and the candid concession by his leading counsel that they did not prove crime and had abandoned it, the tribunal had to decide whether the petition had a redeeming feature or whether anything is left of it. (See page 481 of the record).
On behalf of the appellant it was contended that the petition is in two parts “the area of crime” and “the area of civil.” That having abandoned the “area of crime,” he relies on the civil aspect of his case which requires proof on the balance of probabilities. Relying on the cases of Torti v. Ukpabi (1984) 1 SCNLR 214; (1984) 1 SC 370 at 393-394; Nwobodo v. Onoh (1984) 1 SC 1; (1984) 1 SCNLR 1; Omoboriowo v. Ajasin (1984) 1 SC 206 at pages 227-229; (1984) 1 SCNLR 108, the tribunal was urged to apply the principle of severance and sever the part of the petition alleging crime and hold that on the balance of probabilities, the appellant proved that he was the successful candidate and should be returned. (See pages 482 to 483 of the record).
On behalf of the respondents, it was contended that having abandoned the issue of criminality, the entire petition had collapsed as the whole petition is centred on criminality. (See pp. 496-508 of the record).
As I have said herein before, parties are bound by their pleading and they would not be allowed to set up a different case at the trial which is not supported by the pleadings. The appellant’s senior counsel at the trial wanted the tribunal to do a surgical operation on the appellant’s pleadings to enable him set up a new case not based on the pleadings. This is absolutely not possible as parties are bound by their pleadings. Again, it is not the duty of a trial court to bridge the yawning gap in the case of either party. If a court does that, it has descended into the arena and that will occasion a miscarriage of justice. At page 523 of the record, the tribunal made the following findings:
“The petitioner testified and called 25 witnesses. Neither the petitioner nor any of his witnesses in their evidence alleged that any particular officer or officers was responsible for the alteration and falsification of votes alleged. No documents were tendered either to prove the allegations. Both learned senior counsel representing the respondents addressed the court in extenso on this issue. This tribunal cannot but agree with the submissions of both learned counsel. It must be in the realization of this lacuna in the case of the petitioner that Chief Ahamba, with commendable candour, in his address conceded that the petitioner has not produced evidence or documents to establish these allegations in his petition. The learned silk submitted that those averments should be regarded as having been abandoned by the petitioner.”
The above findings of the tribunal cannot be faulted as they are based on the totality of the evidence placed before it. I hasten to add also that he who asserts must prove. The appellant to my mind asserted but did not prove.
At page 526 paragraph 5 of the record the tribunal said:
“Having carefully examined the remainder of this petition after paragraph 4(iv) and (v) had been excluded, we are of the opinion that nothing is left worthy adjudicating over. We uphold the submissions of learned counsel for the respondents that the doctrine of severance is inapplicable to this petition.”
I hold the strong view that as far as this petition is concerned, the latter findings of the tribunal are unassailable.
It is not in doubt that the issue of crime is central and remains the substratum of the petition. Having said that, I therefore have no difficulty in resolving issue one hereof against the appellant and in favour of the respondents.
As I have resolved issue one against the appellant, issue two becomes academic and of no moment. This is so because this court has upheld the decision of the tribunal that the allegation of crime is central to the petition and the appellant conceded that he did not prove the crime and also abandoned it. This appeal will stand to be dismissed.
Before I am done, I wish to point out that the appellant brief and his so called reply brief are loaded with legal technicalities to enable him win this appeal. The Supreme Court in the case of The State v. Gwonto & 4ors. (1983) 1 SCNLR 142; (1983) 3 SC 62 at 76 said that “justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.” See also Okojo v. Odje (1985) 10 SC 267; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 668 at 717; U.S.A. v. Europharm (Nig.) Ltd. & Anor. (1990) 6 NWLR (Pt.155) 239 at 242.
As issue No. one has been subsumed within issue No. two in this appeal, I hold that in the final analysis this appeal is devoid of merit and it is therefore dismissed. I uphold the decision of the tribunal given on 16/8/05. I make no order as to costs.
Other Citations: (2005)LCN/1834(CA)
