Chief Prince a. N. Ukaegbu V. Chief Nnanna H. Uzor & Ors. (2) (2006)
LawGlobal-Hub Lead Judgment Report
V.A.O. OMAGE, J.C.A.
This is an appeal against the judgment in the decision of the National Assembly Election Tribunal delivered on 19/3/2005 which sat at Aba. The decision of the said Tribunal is founded on the petition of Prince A.N. Ukaegbu, against the 1st Respondent, Chief Nnanna Uzor who had contested the election on the platform of A.D. The petitioner/appellant had contested the election of 12th April, 2003 on the platform of a party which he never stated in his petition, but from other indications it showed that the petitioner contested his election on the platform of APGA. In the petition in the Tribunal below as in this court, the appellant cited also the Independent National Electoral Commission (INEC) as the 2nd respondent, Electoral Officer, Aba North Local Government, Electoral Officer, Aba South Local Government, Returning Officers, Wards Collating Officers of Wards 1-12 Aba South Local Government, as the 3rd, 4th, 5th, 6th and 7th Respondents, respectively. The appellant filed eighteen grounds of appeal including his additional ground and formulated thereon thirteen issues as contained in his brief filed in this court on 27th April, 2005. For the treatment of the issues it is necessary to state hereon the issues:
“(1) Whether the joint Reply of 2nd-7th Respondents either as a whole or as it pertains to the 2nd Respondent ought to be struck out for failure of the 2nd Respondent to obey the order of discovery?
(2) Whether the evidence of RW1 and RW2 regarding their roles as agents on the day of election are supported by the relevant averments in the Reply of the 1st Respondent?
(3) Whether the Tribunal rightly held that the 1st Respondent was qualified for the election?
(4) Whether the failure of the Tribunal to rule on the effect of failure of the 2nd Respondent to produce the form of the 1st Respondent in evidence led to a miscarriage of justice?
(5) Whether the Tribunal committed a breach of right to fair hearing in suo motu raising and deciding on the issue of late nomination as a ground for questioning an election and what, if any, is the effect?
(6) Whether the Tribunal was right in admitting and relying on exhibits R9 and R38 (i.e. result forms tendered by the 2nd to 5th Respondents) when they did not plead any vote and did not file any list of objection as required under paragraph 15 of the 1st Schedule of the Electoral Act?
(7) Whether the certified true copies of the result tendered by the 2nd to 7th Respondents satisfied the conditions required for the presumption of genuineness and correctness?
(8) Whether the Tribunal erred in law in failing to enter a decision on the effect of failure of the Respondent to join issues on votes with the petitioner and whether the failure led to a miscarriage of justice?
(9) Whether the allegation of alteration and inflation of votes in favour of the 1st Respondent was proved?
(10) Whether there is a cause of action against the 1st Respondent in respect of the allegation of inflation and alteration of votes?
(11) What is the legal effect of exhibit P64 which showed that number of votes ascribed to the 1st Respondent in Ward 12 in exhibit r25(11) were more than the accredited and registered voters?
(12) Whether the judgment is against the weight of evidence?
(13) Whether the tribunal rightly relied on the evidence of RW1 and RW4?”
In the court below, the petitioner challenged the election on two grounds, that the 1st respondent was not qualified to contest the election, (2) that the 1st respondent did not score the majority of lawful votes. The judgment of the Tribunal against which the appeal is filed is contained in volume 2 of the record of appeal at pages 559-575. The Tribunal made the following findings and conclusion. On page 572 of the record, the Tribunal ruled and concluded thus “on the appellant’s charge of alteration of votes against the 6th and 7th respondent who have been struck out by the Tribunal as wrongly cited as to alteration of votes at Aba town Hall ward 1. This evidence was led by PW7, one Barrister Chidima John Okehi Akrika. He stated that he was the APGA agent at the Aba Federal constituency collation center and that while they were waiting for the various ward results to be returned for collation. There arose a dispute between one Hon. Abai Osiri who was the APGA agent for Aba South Local Government Area and the INEC staff over the alteration of figures. That said Agbai Osiri insisted that figure 7 (seven) was added before 163 for the AD candidate. That he observed the dispute as regards the result. That he observed that the figures 7,163 were entered for the AD candidate as against the actual figured 163 scored by said candidate. However under cross examination by the Oyetibo, SAN, counsel for the 1st respondent he stated that the alteration of the votes must have been done between the ward and the local government collation centre. That shows that he was not sure and indeed did not know when the alleged alteration took place and where. Furthermore under examination by counsel for the 2nd – 7th respondent he said he did not know the INEC staff that did the alteration. His testimony on the alleged alteration is therefore not credible. In any case, the said Mr. Osiri who was alleged to have been at the scene of the alteration and witnessed was not called. Certainly if he had been called, he would have shed light on the evidence as to the alleged alteration. We therefore hold that the evidence on the alleged alteration in Aba South Ward – “Constituency” has not been established. In any case, the duty of collation of results at ward levels is that of Ward Collation/Returning Officers. We have held elsewhere in this judgment that the wards collation officers who were lumped together as 6th and 7th respondent were improperly joined, and ought to be struck out of the petition, that if not struck out any evidence led against the ward collation officers or in respect of collation officers in Ward Collation Center go to no issue. We accordingly hold that the petitioner failed to prove that there was alteration of votes in results at Aba Town Hall Ward 12. The petitioner pleaded in paragraph 12b and 14 that detailed particulars of alteration will be given after interrogation, discoveries and inspection of document, as the forms were not given to his agents. There is no evidence before us to show that the petitioner embarked on any discoveries by interrogations. However there was order for inspection granted the petitioner. It is on record that on 15/12/2004 the Tribunal ruled that the order for inspection has been sufficiently complied with by the respondents. It is instructive to note that the petitioner never gave any detailed particulars of the alleged alteration in respect of the remaining 23 wards that make up the Aba Federal Constituency. Having not given the particulars of the alteration and inflations of the figures and having not led any evidence in respect of the allegation of alteration and inflation in the other wards of the Local government and the Constituency Collation centers, the appellant has not been able to establish the allegation beyond reasonable doubt. See AJADI v. AJIBOLA (2004) 16 NWLR (PT. 898) page 91 at pages 168-169 part H; A; and IZUOGU v. UDENWA (1999) 8 NWLR (PT. 608) p. 582.
We have noted that when RW2, who was the ADP Chairman for the South Local Government Area was present at the Aba Town Hall Collation Center gave evidence denying the alleged Act of alteration and inflation of the votes: no question was put to him by the petitioner on the issue. Similarly the RW3 who was the collation officer for Aba Town Hall Ward 12 where the alleged alteration took place and being one of those allegedly involved in the alleged alteration, no question was put to him on the testimony denying the alteration. The petitioner is therefore deemed to have accepted their testimony as the truth. See NJIOHWEMENI v. OCHES supra. Further more the petitioner did not lead any evidence on the alleged alteration and inflation of votes either on the exhibit tendered by him or the respondents. It is settled law that a party who tendered documents in support of his case must lead evidence tying the facts he relies on to the exhibits or documents he has tendered. It is not the duty of the Tribunal to fish out such evidence for him See ATIKPEKPE v. JOE supra. One last point which we wish to point out is that from the pleading on the petition and the evidence of the witnesses of the petitioner no single allegation of corrupt practice albeit alteration and inflation of vote has been made against the 1st respondent. There was no evidence also that any of the agents committed the alleged alteration and inflation of the votes which has been made against the 1st respondent. There was no evidence also that any of his agent’s committed alleged alteration or inflation of votes nor was there evidence that the INEC officials who were alleged to have committed the alleged alteration and inflation of the voted were the agents of the 1st respondent or even that they acted at his behest. We therefore hold that no cause of action on the alleged alteration and inflation can be maintained against him. See EFFIONG V. IKPEME (1999) 6 NWLR (PT 606) page 260 at page 281 para G-H, and UBOM v. ANAKA supra at p.110 para F. we therefore hold that the petitioner failed to prove the allegation of alteration and inflation of result beyond reasonable doubt. Accordingly issue Number 3 is resolved in favour of the Respondent. Having resolved issues 1, 2 and 3 in favour of the Respondents we hereby hold that the petition has no merit. It fails and it is accordingly dismissed. We accordingly affirm the declaration and return of the 1st Respondent, Chief Nnanna H. Uzor by the 2nd and 5th Respondent as the duly elected member representative Aba Federal Constituency in Federal House of Representatives.
At the commencement of the judgment the Tribunal had delineated the substance of the petition into; and under three heads as follows:
“(i) Whether it is proper in law to group and lump together 12, ward collating Officer for Aba North as 6th Respondent and 12 Ward Collating Officers for Aba South (as 7th Respondent) and sue them as 6th and 7th Respondent respectively.”
In KHALIL v. YARADUA, Supra, the Local government electoral officer for local Government offices of 34 Local Government Areas, the Returning Officers for all “wards in the 34 Local Government Areas and the Presiding Officer of all the polling station and unit in all 34 Local Government Areas of Kasitina were joined as 5th, 6th, 7th and 8th respondent respectively, the court of Appeal held such joinder to be bad and that having lumped 34 individual persons together as a group for the purpose of being sued, they became non juristic and the other of the tribunal to sue them in a representative capacity must be sought and obtained, it held further that the law indeed the Electoral Act 2002 does not permit the amalgamation of persons to juristic personality capable of being sue. We are bound by the decision of the court of Appeal in these two cases and accordingly hold that the joinder of the Wards Collating Officers of Wards 1-12 Aba North Local Government Area; and Wards Collating Officers of Wards 1-12 Aba South Local Government Area in the petition as the 6th and 7th respondents respectively is incurably bad, incompetent and same is liable and is accordingly struck out. See MAENSTHLINE v. ADDIDI INVESTMENT LTD (2002) 11 NWLR (PT 778) 319; (ii) OKECHUKWU & SONS v. NDAH supra. Etc. We are of the view that in line with EGOLUM v. OBASANJO (1999) NWLR (PT.611) 355 any evidence that is led against the said parties who have been struck out such evidence will be discountenanced in the course of this judgment. Issue No. 1 is resolved in favour of the Respondent, since the parties against whom complaint is made are no longer parties in the proceedings below and no appeal is made against the matter.
Issue No. 2, in the judgment is as follows:
“(2) Whether the 1st respondent was qualified to contest the 12th April 2003 elections into Federal House of Representative representing Aba Constituency based on Petitioners issue 5-14 in the brief.”
This how the Tribunal resolved the issue. The Tribunal referred to Section 65(2) of the 1999 Constitution and Section 134 of Electoral Act which enabled the challenge and (i) found that the challenge is about sponsorship of the petitioner; and that evidence exists on the record to show that the 1st respondent was sponsored by the AD. (ii) The allegation of the Petitioner that the 1st respondent did not submit his forms, or that the party did not submit the name of the 1st respondent and his particulars within the prescribed period of time. The petitioner tendered form CF 001 alleged to belong to “1st respondent as the form tendered by the 1st respondent to the INEC. The said form was tendered as exhibit P40. Two of the officers of the two Local Government in the constituency testified as RW5 and RW6 , and deposed that the 1st respondent was sponsored by testified as RW5 deposed further that exhibit P40 does not emanate from the INEC office as it was sworn to after the nomination. The Tribunal held thus “furthermore we wish to say that there is noting in the Electoral Act to show that late nomination can invalidate the election of a candidate or is it a ground for questioning the election under Section 134 of the Act. See OLLEN v. BOB (2004) 1 NWLR (PT 854) p. 378 at 399 para. F-H. In view of the foregoing issue Number 2 is hereby resolved in the affirmative in favour of the 1st respondent and thus duly qualified to have contested the election been sponsored by his party, the Alliance for Democracy (AD).” This court finds no substance in the submission made on appeal to contradict or set aside the findings of the court below on this issue and rule aganist the appellant since it is clear that the evidence as tendered by the appellant to show that the part of the 1st respondent was not tendered. Exhibit P40 is denied by RW 5 who should know the issue fails.
On the issues as to whether the 1st respondent was elected and returned by a majority of lawful votes cast at the election which is in response to one of issue of the appellant, the Tribunal below ruled that the figures tendered as votes by the appellant do not derive from the INEC office, consequently besides denying it. INEC has no obligation to produce figures on votes when the votes alleged by the Appellant do not derive from INEC, and the figures are not authentic. Only the INEC has possession of the authentic figure. RW5 has testified that the figures presented by the appellant in the court below are not true; the Tribunal therefore found that the 1st respondent was returned on lawful votes cast at the election.
In this appeal, in response to the petitioner/appellant’s brief filed on behalf of the 1st respondent. The appellant filed in reply to the brief of the 1st respondent. The 2nd -7th Respondents also filed their respondent brief which are all considered together in this judgment. It seems to me that the substance of the appeal can be placed under the following heads: (i) The complaint of the appellant about the eligibility of the 1st respondent to contest the election held on 12th, April 2003, in Aba North and South Federal Constituency by reason of (a) alleged failure to permit the particulars of the 1st respondent because as the Appellant deposed the nomination of the 1st respondent as in form CP 100, in exhibit R 40 arrived in INEC late. (b) 1st respondent was not sponsored by any political party. The above issues are of fact, upon which the Tribunal below has made findings. Having read the evidence tendered by the parties and their witnesses I have no reason to differ from the conclusions made by the Tribunal. I therefore affirm the findings of the Tribunal and agree that the issues were properly resolved against the appellant.
At the commencement of hearing of the petition in the Tribunal below the said Tribunal found that the Collation Officers for Aba North and South Wards 12 from each divide were lumped together by the Petitioner in the petition as 6th and 7th respondents. The lumping together of the officers of the wards, when each Collating Officer had acted separately had rendered the jointure of their stations non-juristic and no action can be against them in that status. The tribunal therefore correctly struck off the 6th and 7th Respondent as parties to petition. The tribunal proceeded further to rule that any evidence given against any of the 24 Wards Collating Officer from Aba North and Aba South Constituency will go to no issue.
In the appeal before this court I sought repeatedly to see in the grounds of appeal where in the appellant grounds of appeal any appeal against the order of the tribunal which struck out the parties; now 6th and 7th respondents can find no ground or issue raised thereon. In the appeal and the brief filed by the appellant he made little regard to the order of control and made copious reference to the Ward Collating officer as if 6th and 7th Respondent remains parties to the petition. Except where the said ward collating officers testified as in the case of RW5 and RW6 all evidence given against the parties struck out of the proceeding against whom no issue exist go to no avail.
The finding of the Tribunal is based on the Electoral Act 2002 which referred to the Ward Collating Officers/the Returning Officer in the singular not plural. In any case the allegation made against one officer cannot clearly be attributed to another and in these case several others. Followings the decision of KHALIL v. YARADUA (2003) 16 NWLR (PT 847) 446 particularly at 845 I must hold that the Tribunal below was right to strike out names of the 6th and 7th Respondent from the proceeding in the court below. The averments made by the appellant in his brief which referred to the 6th and 7th respondents as if they are still parties to the appeal are a great error. Moreso the result amounts to non-joinder of the relevant parties. See CHIEF DAVID V. CHIEF P. GREEN (1987) 7 SCNJ 255.
The counsel to the 2nd – 7th Respondent observed in his brief that the striking out of the 6th and 7th Respondent in the Tribunal below totally decapitated the case of the petitioner in the Tribunal below and of the appellant in this appeal when no appeal is lodged or filed against the issue. For instance the allegation that RW5 who was Collating Officer at the election could be one of the officers who altered the result of the 1st respondent to include the figure 7 to precede 163, has done nothing to prove such a criminal allegation against any collation officer. RW5 is not a party to the proceeding. He was only a witness. No criminal accusation can be successfully made against him. In any case the testimonies rendered by P7 and P8, prove nothing since it was found to be hearsay. Hearsay evidence is not admissible to prove a fact in issue. P7 did no depose to what occurred to his knowledge and the person who he said was present at the scene was not called to testify. The allegation is not proved. It is dismissed and resolved against the appellant.
The Tribunal treated the issue of falsification of results at great length that it must be considered adequate. It is settled law, that whenever a crime is imputed in a civil proceeding such crime should be proved beyond reasonable doubt. It has not been so proved. The allegation of falsification of result is a crime. Besides the absence in the proceedings of the person against whom the criminality is imputed, no proof is made of the crime; not to talk of being done beyond reasonable doubt. I resolve the two issues contained in this discourse against the appellant.
Was there any other proof of allegation of falsification or alteration of votes? I have read the issues formulated by the appellant and the evidence tendered by the appellant, the impression conveyed by the testimony of the petitioner in the court below is that he left to the 2nd respondent the onus to show that there was no inflation of votes. This is wrong in law. The onus of proof of allegation made is on the party who made it, particularly in an allegation of criminality against another. If the party who makes the allegation failed to prove his; averment, the issue fails and it is discountenanced. I am agreement therefore with the conclusion of the Tribunal that the petitioner has failed completely to prove the allegation of falsification of votes in favour of the 1st respondent.
On the issue, whether petitioner deposed that the votes credited to 1st respondent were undeserved. In doing this, established rules require the petitioner to publish the bad votes, after he had published a notice of objection to the bad votes cast. See OGUKWU v. ONWUDIWE & ORS (1984) 2 SC 15 at 61. The petitioner failed to give notice of such votes of the 1st respondent that he objects to; and did not published any list of bad votes of the 1st respondent. Instead the petitioner without the leave of the court/Tribunal below or of this court published a list of his own assumed vote’s cast in each ward. The RW5 has deposed in his evidence that the list so recorded is not as contained in the record of the Chief Electoral Officer through whom he keeps custody of the cast votes. As the leave of the court/tribunal was not obtained anywhere before petitioner listed the votes. No votes were filed, the Tribunal had no jurisdiction to consider it and it did not. See SAHABI v. NNAMANI (1981)3 NLR 135 of court of Appeal Kaduna Division.
The certified results proved by the Electoral Officer for the 1st respondent enjoy the presumption of correctness not so list prevented by the appellant results See NWOBODO V. ONUOH (1984)1 SCNLR (1).
It is idle therefore for the appellant to aver that paragraph 15 of the 1st schedule to the Electoral Act was not complied with; when the requirement to join issues on the votes is predicated on a preamble of proper publication of results by the petitioner/appellant. The 1st respondent and the 2nd respondent, deny that the figure on votes published by the appellant is genuine and correct. However in par (sic) 19 of appellant’s brief the appellant made a curious submission when he wrote that
“a party in an election petition alleging alteration of undue return who fails to plead specifically the scores on each form showing the rules EC8a (1) this would be fatal to the case of the party.”
Appellant cited MOGHALU v. NGIGE (2005) 4 NWLR (PT 914).
Surely, it was the appellant who pleaded although unproved the alteration of votes. It is precisely because the figures published by the appellant are incorrect and untrue that the appellant’s case must fail because not only did appellant fail to plead in cases other than one he failed to show the figures required. The appellant made several wild allegations that the impression is given that the appellant often forgot for which party his submissions were made; or in what connection the submission was being made, for instance in a proof of crime, which requires proof beyond reasonable doubt, the appellant in paragraph 10, 20, under subtitle additional entries alteration submitted thus: “The court may take judicial notice of matters of such and of all facts that are notorious. On the basis of this we urge your Lordship to take judicial notice of the fact that a photocopy in black and white of result forms cannot have writings inserted in biro pen.” Certainly the above submission is inappropriate when the onus of proofs is on the appellant to prove a ground beyond reasonable doubt. See HASHIDU v. GOJE (2003)15 NWLR (PT 843). Appellant submitted generally that the biro inscription was made by a person without authority to do so. He cited BUHARI v. OBANSANJO (2005) 13 NWLR (pt.94) 260. The appellant brief became lengthy because the appellant complained about every conceivable detail in the proceeding in the Tribunal and sought an order on the appeal to set aside the declaration and the judgment of the Tribunals the Appellant even objected to and urge the court to set aside the judgment on secondary evidence of RW1 and RW2. Surely, it is not every allegation made which provokes the setting aside of the decision of the Tribunal. Section 134(1) Electoral Act 2002 provides the grounds upon which an election may be questioned. They are four in number and clearly stated in the section. The issues on appeal cannot be too remote from these if proper grounds had been raised in the court below.
The Tribunal did limit the appellant to talk on any of the four heads and considered the petition under all conceivable complaint made by the complainant/appellant. The appeal is that the judgment of the Tribunal went beyond the head and subhead prescribed in the Electoral Act but failed to prove thus. In my opinion and I so rule that the striking out of the Collating/Returning officers from the proceedings ab initio, the allegations made by the appellant go to no issue, since the parties against whom the complaint/allegations are made, that is the 6th and 7th Respondents who were the 24 Collating/Returning Officers for Aba North and South Local Government constituencies are not cited in the proceedings by order of the Tribunal against which issue the appellant did not appeal.
On the second issue, the appellant failed to show that the 1st respondent was not qualified to contest the election into the Aba Federal Constituency held on 12th April 2003 into the House of Representatives. This court having read the record and the judgment of the Tribunal finds no reason to disagree with the judgment of the court below, and uphold same. The appellant has failed to prove beyond reasonable doubt the allegation of inflation and falsification of election results against the 2nd Returning officers and against the unnamed and unidentified parties at the hearing in the Tribunal below.
In sum I find no substance in the appeal; it fails; it is dismissed. I make no order for costs.
Other Citations: (2006)LCN/1969(CA)
