Hon. Agboola Ajayi & Anor. V. Prince Olubukola Ebietomiye & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A),

These appeals flow from two Election Petitions brought at the lower tribunal in respect of the election into the House of Representatives held on the 21st day of April 2007 for Ese-Odo/Ilaje Federal Constituency in which there were Seven Candidates including Mr. Agboola Ajayi (who stood under the platform of PDP) Omotoye Bayo (under the platform of the Labour Party) and Prince Olubukunola Tony Ebietomiye (under the Democratic People’s Alliance).

The first of the Petitions namely EPT/OND/NA/19/2007 was brought by Tony Ebietomiye against Seven Respondents namely; Agboola Ajayi, PDP, INEC and its officials, while the Second Petition No. EPT/OND/NA/24/2007 was brought by Omotoye Bayo against Eight Respondents including Ajayi Agboola, PDP, INEC and its officials. INEC also appealed in both Petitions.

At the end of the election Agboola Ajayi was returned as elected hence the two afore said Petitions.

The two Petitions were tried by two different Panels. The first i.e. EPT/OND/NA/19/2007 was by Justices Nabaruma, Okon, Okunbowa Goji and Umar. While the Second Petition i.e. EPT/OND/NA/24/2007 was tried by Justices Ikyegh, Elechi, Nimpar, Onwuamaegbu, and Maiwada. At the conclusion of trial in each Panel, each of the Panels nullified the election of Agboola Ajayi (1st Respondent in each of the Petitions) and ordered a fresh election.

Dissatisfied with each of the Judgments, the said Agboola Ajayi appealed against each of the Judgments; Appeal NO.CA/B/EPT/330/08 is against the Judgment in Petition NO. EPT/OND/NA/24/2007, while appeal NO.CA/B/EPT/343/08 is against the Petition in EPT/OND/NA/19/2007. INEC and its officials filed a Cross Appeal in Petition NO.EPT/OND/NA/19/2007 in CA/B/EPT/330A/08. The two appeals and the Cross Appeal were Consolidated by this Court and taken together since it was in respect of one election and one return. See Section.

All the sides in both appeals and Cross Appeals filed and exchanged briefs of argument. In his brief filed in appeal NO.CA/B/EPT/330/08, which though he did not formally adopt, the 4th Respondent, the Commissioner of Police Ondo State raised a preliminary objection touching on the jurisdiction on the lower tribunal on two grounds namely:

(1) “That the Petition NO.EPT/OND/NA/24/07 from which the appeal arose to this Honourable Court is incurably incompetent and lacked existence in law having been filed outside the statutory period of “within thirty days (30) days from the date the result of the election is declared” as provided for by Section 141 of the Electoral Act, 2006.

(2) That the Judgment of the lower Tribunal delivered on the 2nd of July 2008 which is the subject-matter of the appeal before this Honourable Court is void ab initio for lack of jurisdiction.”

The 1st Respondent also in his brief raised a preliminary objection to the competence of grounds 1, 2, 3 & 4 of the Notice of Appeal in appeal NO.CA/B/EPT/330/08. Since the objection of the 4th Respondent touches on the issue of jurisdiction of the lower tribunal to try the petition in the first instance, and jurisdiction being a threshold issue, which the Court can itself suo motu raise. I will deal with that issue first because its determination one way or the other will affect the appeal. See ALHAJI BARIBUDO NUHU v. ALHAJI ISOLARE OGELE (2003) 12 S.CNJ. 158.

The Complaint in the objection was that by Virtue of the Electoral Act Section 141, a Petition complaining of an election shall be presented within thirty days from the date the result of the election was declared. He argued that the result of the election having been declared on the 21st of April 2007, and the Petition having been filed on the 21st of May 2007, more than 30 days from the date of the declaration of the result, that Petition was clearly filed out of time, and therefore statute bared. Being statute bared, it was incompetent, the lower tribunal lacked the Jurisdiction to entertain it, and the Judgment based on it was void.

In his own brief in reply, the 1st Respondent in appeal NO.CA/B/EPT/330/08 (Petition NO.EPT/OND/NA/24/07) while agreeing that the election was held on the 21st of April 2007, stated that the result of the said election was declared on the 22nd of April 2007, and proceeded to argue that even if the Petition which formed the basis of this appeal was statute bared, it was too late to raise the point at appeal stage. He argued that the implication of a Petition that is statute bared was that such a Petition was a nullity, being a nullity he Contented, an application to set it aside, must be brought within a reasonable time by Virtue of Paragraph 49(2) of the 1st Schedule to the Electoral Act 2006. Learned Counsel likened a Petition filed out of time to one filed without the payment of the appropriate filing fees which will also be a nullity. Counsel then relied on authorities dealing with cases in which appropriate fees were not paid, and was thus held to be a nullity for which objections were overruled based on paragraph 49(2) afore said. Even though as I said earlier, the 4th Respondent did not appear to formally adopt his brief in Court, his written arguments are already before us, and we cannot close our eyes on those arguments that touch on a fundamental issue such as Jurisdiction. The Petitions, the subject of the complaints in the objection are before us, the dates of their filing as reflected in the Petitions are also before us. The statutory provision for the filing of Petitions is a point of Law and bothers on jurisdiction which the Court ought to take note of. Therefore, even if not raised by Counsel, the Court can raise the issue of jurisdiction suo motu. The Supreme Court has held that there is a DUTY and POWER of the Court to raise the issue of jurisdiction suo motu. See OLOBA V. AKEREJA (1988) 3 NWLR (PT.84) Page 508. Besides, the brief containing the objection was duly filed as required by the rules of this Court within time. This Court can therefore look at it, as adoption of brief in open Court is a formality.

Filing a Petition out of time, and filing one within time but without payment of appropriate fees are two distinct and different matters. One raises a consideration of the statute of limitation which bares an action, thus touching on the Competence of the action itself and the Jurisdiction of the Court to entertain the action. While the other does not raise the competence of the Suit and the Jurisdiction of the Court, but raises a point of mere irregularity. Statute of Limitation is a total bare to an action as a defence which makes an action that is bared under the statute completely, absolutely and totally incompetent, and therefore Jurisdictionally unintertainable, as against an action that is merely procedurally irregular which can be entertained upon a prescribed Cure of the irregularity.

Now Section 141 of the Electoral Act 2006 provides that an election petition under the Act shall be presented within thirty (30) days from the date the result of the election was declared. In my view, the requirement of presentation of an election petition within 30 days from date of declaration of result is a Mandation Creating a statute of limitation.

The rule as to computation of time is that when time is to run from a particular date, it starts to run immediately from the very date it is so prescribed to run irrespective of the time of the said date. If a result is declared say by 10 p.m. on 21st of a month, time starts to run from that moment of declaration at 10 p.m. In this regard, I agree with the view expressed by my learned Brother Ngwuta JCA in A.C. V. GANG Appeal NO. CA/J/EPT/GOV/275 (unreported) delivered on 26/2/06 where it was observed that a 30 day period includes the whole or part of the day on which the declaration was made in the last day of the 30 days.

In the instant appeal i.e. (NO.CA/B/EPT/330/08), the 4th Respondent said the declaration of result was made on the 21st of April, 2007. The 1st Respondent said it was made on the 22nd of April 2007. What this means is that which ever way, it was either made on the 21/4/07 or on the 22/4/07. If it was declared on the 21/4/07, the 30 days from 21st would be 20th of May 2007. If on the other hand it was on the 22nd of April 2007, the 30 days would expire on 21st of May 2007. Records of Appeal show that the Petition was signed on the 22nd May, 2007, and filed the same day viz Receipt NO. R/N 2006956068 of 22nd of May 2007. The two versions as to which the result of the said election was declared led this Court into putting a question to all Counsel in these appeals as to the actual time the result was declared. All the Counsel in this matter in open Court agreed that the said result was declared on the 22nd of April 2007. Calculating 30 days from the 21st of April 2007, the statutory period for filing the Petition expired on 20th May 2007. Calculating from 22nd April 2007, the 30 day period expired on 21st May 2007. What this means is that whether it was on the 21st April 2007 that the election was declared as stated by the 4th Respondent, or on 22nd May 2007, the Thirty day period expired on 21st May 2007. Either way therefore, the petition filed on 22nd May 2007 was clearly filed out of time by either one or two days as the case may be. It was therefore statute bared, null and void and of no effect. See ALATHA V. ASIN (1999) 5 NWLR (PT.601) Page 32 at 44.

OGBEBOR V. DANJUMA (2003) 15 NWLR (PT.843) Page 403 at 426-427. HON. MOHAMMED UMARU KUMAHS V. SENATOR ALI MODU SHARIFF CA/J/EPT/GOV/244/07 (unreported).

Having held that it is statute bared, void and of no effect, it follows that all proceedings based on it and upon which they are founded including the Judgment giving rise to this appeal are also null and void, and of no effect. See MAC FOY V. U.A.C. (1961) 3 All ER. 1772. MADUKOLU V. NKEMDILIM (1962) 1 All NLR. 587 at 594. PEENOK NIG. LTD. V. HOTEL PRESIDENTIAL LTD. (1982) 12 S.C.

Page 1.

In the circumstance, I adjudge petition NO.CA/B/EPT/330/08 incompetent.

1. The Petition in the lower tribunal i.e. Petition NO.EPT/OND/NA/24/2007 Is struck out having been presented outside the statutory period.
2. The Judgment of the lower tribunal is hereby set aside for being a nullity having been given without Jurisdiction. Appeal NO. CA/B/EPT/33 0/08 having thus arisen from an incompetent petition is itself incompetent, and therefore is hereby struck out.

The Cross Appeal of the 1st – 3rd Respondents in appeal No. CA/B/EPT/330A/08 by my striking out of the petition in the lower tribunal for incompetence is also incompetent and is also hereby struck out.

This leaves the Court with Appeal NO. CA/B/EPT/343/08 arising from petition No. EPT/OND/NA/19/2007 which was filed within time.

The Appellant in this appeal filed thirteen grounds of appeal from which he distilled Five issues for determination namely:

1. Whether the 1st Appellant was qualified on account of educational qualification and presentation of forged certificate to contest the 21st April, 2007 election into Ilaje/Ese-Odo Federal Constituency of Ondo State when the 1st Appellant’s evidence of qualification for the election has been found to be genuine by the trial tribunal.
2. Whether the Petitioners proved the criminal allegations in their Petition as required by law to warrant the shifting of onus of proof, as the trial tribunal did, on the Respondent/Appellant.
3. Whether the tribunal was right in its failure, refusal and or neglect to evaluate and make specific findings on the evidence of the Respondent/Appellant’s witnesses.
4. Whether the trial tribunal was right in raising the issue of discrepancies in the date of birth of the 1st Respondent/Appellant when the issue was not covered by the Pleadings nor issues joined on same.
5. Whether, having regards to the state of pleadings and evidence on record, the Petitioners have proved their case as required by law to warrant the nullification of the election of the 1st Respondent/Appellant.

The 3rd – the 7th Respondents at the lower tribunal also filed an appeal against the Judgment which they later withdrew, and same was dismissed.

The 1st & 2nd Respondents raised two issues as arising.

1. Whether or not the 1st Appellant was qualified or disqualified by the 1999 Constitution from Contesting the election as found by the tribunal.
2. Whether having regards to the State of pleadings and evidence on record, the Tribunal come to the right conclusion in nullifying the election of the 1st Appellant.

The issues captured by the 1st and 2nd Respondents as arising for determination encapsulates the Five issues raised by the 1st & 2nd Appellants.

I will prefer to rephrase the said two issues as follows;

1. Whether the lower tribunal was right in holding that the 1st Appellant was not qualified to contest the election.
2. Whether on the pleadings and evidence the petitioners proved their case as required by law to warrant the nullification of the election of the 1st Appellant.

The 1st issue above covers grounds 1 and 4 of the Appellant’s grounds of appeal. While the Second issue covers grounds 2, 3 and 5 – 13 of the grounds of appeal.

On issue No.1, learned Counsel for the Appellant Dr. Olatoke argued that the first Appellant (Agboola Ajayi) was qualified to contest the election. He referred to ground three upon which the petition was founded which hinged upon lack of appropriate educational qualification, presentation of forged Certificate to INEC, and indictment for embezzlement by panel of enquiry. The Appellants, he argued joined issues with the 1st & 2nd Respondents on this point by paragraph 6B and 11 of the Petition. Similarly, the 3rd – 7th Respondents joined issue on this point. He then argued that on the state of the pleadings the burden was on the first and second Respondents who were the petitioners at the lower tribunal to prove the allegation of non – qualification of the Appellant, presentation of forged certificate, and indictment for embezzlement which he said the Petitioners failed to do.

He contended that mere production of Exhibit 4(1) – 4(4) and 5 without more relating to the qualification or otherwise of the 1st Appellant was not sufficient to establish the allegation as those exhibits were not tied through evidence to the allegations, nor was there any demonstration of the purport of those exhibits through witnesses as was emphasized in the case of ONIBUDO v. AKIBU (1982) 2 S.C. 60 at 62. Besides, he argued, the allegation of presentation of a forged Certificate is an allegation of crime which must be proved beyond reasonable doubt. This he said was not proved.

Further, he contended that exhibit 13 (5) which was the 1st Appellant’s School Certificate was found by the tribunal at page 437 of Vol. 1 of the record to be genuine. That finding settled the issue of qualification. It was therefore not open to the tribunal to turn around and hold that the 1st Appellant was not qualified on ground of age which was not part of the pleadings.

In their reply on this issue, Learned Counsel for the 1st & 2nd Respondents Dr. O.F. Ayeni argued that the argument of the Appellants that Exhibits 4(1) – 4(4) and 5 were merely dumped was faulty because those exhibits were tendered without objection and that non of the grounds of appeal and issues arising there from attacked the admissibility as it were, of those exhibits. Therefore, the submissions of the Appellant’s Counsel on those exhibits went to no issue. Learned Counsel for the 1st & 2nd Respondents then argued that having admitted those exhibits, the tribunal was enjoined to consider and scrutinize them and reach a conclusion thereon. Referring to exhibit 13(5), (The Certificate), Counsel submitted that the age stated thereon was part and parcel of the document to which the 1st Appellant was bound, and that it was on the basis of Exhibit 13(5) that the tribunal held that the WAEC Certificate was not forged. Counsel argued that the finding that the Certificate was not forged is not the same as saying that the Certificate belonged to the 1st Appellant. Referring to Exhibit 13(17), (The Examination entry sheet), counsel submitted that the finding of the lower tribunal on this exhibit that:

“It is inconceivable that the same person who in his handwriting filled his date of birth as 8th December 1980 would depose to an affidavit, Exhibit 13(17) to the effect that the same date of birth which appears on his Certificate is incorrect. ” was correct. Therefore it was for the 1st Appellant to explain the inconsistency by evidence, which he failed to do, which failure affected the Certificate relied upon by him as his qualification to contest.

One of the two grounds upon which the Petition was anchored was that at the time of the election, the 1st Appellant was not qualified to contest same “on account of educational qualification and presentation of forged Certificate to the 3rd Respondent and for having been indicted for embezzlement, fraud and misappropriation by a panel of enquiry”.

This ground is contained in paragraph (b) of the Petition before the lower tribunal. The Appellants by paragraph 6 of their reply to the Petition denied the averment in paragraph 6(b), and averred that he was educated up to Secondary School level, and was never indicated for embezzlement, fraud or misappropriation.

Thus the burden was cast on the Petitioners to establish the allegations contained in paragraph 6 (b) in the manner they were formulated. It is important to note that age as a qualification for contesting that election was never made an issue on the pleadings and therefore was not an issue for determination by the tribunal in any manner what so ever. That the matter of age was not an issue was even appreciated by the learned counsel for the 1st and 2nd Respondent in his formulation of the issues for determination in his written address at the lower tribunal. For ease of reference, the second issue so formulated by him as reproduced in the Judgment of the tribunal at page 411 of the record of appeal reads thus:

“Whether at the time of the election, the 1st Respondent was disqualified by the provisions of the 1999 Constitution of the Federal Republic of Nigeria on account of educational qualification and presentation of forged Certificate to the 3rd Respondent; and for having been indicated for embezzlement, fraud and misappropriation by a panel of inquiry.”

The Petition was not amended to plead the fact of age as an additional disqualification as a ground for the Petition. The Law on pleadings is that evidence led on an unpleaded fact would go to no issue. Evidence in this regard includes both oral and documentary evidence. A documentary evidence must be tied to a pleaded fact as a foundation for the reception of such a document. Even at that, oral evidence must be given to tie the document to the pleaded fact with a view for its proper examination and ascertainment for its veracity and authenticity. See EGBA V. APPEH (2005) 10 NWLR (PT.934) 464 at 483.

See also ONIBUDO V. AKIBU (1982) 2 S.C. 60 at 62.

AWUSE V. ODILI (2005) All FWLR (PT.261) 248 at 321.

The tribunal appreciated that educational qualification was a focal ground under this issue when in its Judgment at page 434 of the record of appeal it observed as follows:

“A close scrutiny of the Petition shows that the 1st Respondent is alleged not to be qualified “on account of’

a. educational qualification

b. presentation of forged Certificate/documents to the Independent National Electoral Commission and

c. ……..”

The tribunal had in its Judgment held that the allegation of indictment for embezzlement, fraud and misappropriation by a panel of enquiry against the 1st Appellant was not proved since there was no Scintilla of evidence either oral or documentary led to establish that allegation.

With regard to the educational qualification of the 1st Appellant, and or the presentation of forged Certificate/documents to INEC, the tribunal observed in its Judgment that:

“although there is no oral evidence from any of the petitioners’ witnesses, there is however documentary evidence produced upon subpoena duce tecum which consist of Exhibits 5 and 13(1) – (19)”

Exhibit 13(5) which is the School Certificate of the 1st Appellant was tendered by the 1st & 2nd Respondents to show the qualification of the 1st Appellant which was presented to the 3rd Respondent (INEC). Although the tribunal had observed that the 1st Appellant tendered non, having not denied or objected to Exhibit 13(5) tendered by the Petitioners, it follows that he had accepted it as his and the tribunal in its Judgment found that it was the Certificate he presented to the 3rd Respondent.

In its consideration of the allegation that the 1st Appellant tendered a forged Certificate to the 3rd Respondent, the tribunal after reviewing the evidence, held that that allegation was not proved on the ground that no oral evidence was given in this regard. It even went further to hold that that Certificate exhibit 13(5) was genuine. Indeed it has observed with regard to the Certificate exhibit 13(5) as follows:

“The evidence of the Petitioner thus appear to confirm the genuineness of the Certificate rather than its forgery. There is therefore no evidence that the Certificate Exhibit 13(5) was forged. If at all, the evidence shows that the Certificate is genuine. In the circumstances we hold that the Petitioners have not proved that the 1st Respondent submitted forged School Certificate to the Independent National Electoral Commission. ”

When a Court after reviewing evidence adjudge a document as genuine, it is genuine for all intents and purposes. If a document is forged, it cannot be described as genuine.

This finding ought to have concluded and indeed concluded the issue of the qualification of the 1st Appellant to Contest the said election, and should have led the matter to rest. But surprisingly, the tribunal turned round to rely on Exhibits 5 and 13(17) (the certified true copy of the West African Senior School Certificate Examination entry sheet) said to contain the date of birth of the 1st Appellant, and after comparing it with the age on Exhibit 5 and Exhibit 13(17), documents which were not pleaded and which therefore did not constitute any issue in the proceedings to hold that the 1st Appellant shot himself on the foot by failing to offer any evidence in explanation, and therefore that he was not qualified educationally to contest the election.

Both Exhibit 5 and 13(17) having not been pleaded, should not have been made use of by the tribunal even if they had been referred to in any other pleaded document. The reference in a pleaded document to a document not so pleaded is not the pleading of that other document.

See AKANDE V. ALAGA (1988) 4 NWLR (PT.86) Page 1 at 13.

LAWAL V. G.B. OLLIV ANT (1972) 3 S.C. Page 124.

The Supreme Court in FABIYI V. ADENIYI (2000) 6 NWLR (PT. 662) Page 532 held thus:

“Parties and the Court are bound by the pleadings before the Court. A trial Court in deciding a case must keep strictly to the pleadings of the parties and MUST not, even when the interest of Justice so demands stray away from the pleadings. ”

So the affidavit of correction of age, Exhibit 13(17) and Exhibit 5 the WAEC entry sheet were not relevant to the proceedings. Therefore, having confirmed the genuineness and authenticity of the 1st Appellant’s Certificate, by its finding in its Judgment at page 437, the tribunal should not have destroyed the effect of that finding by holding as it did at page 440 of its Judgment that the 1st Appellant was not qualified educationally, to contest the election. I therefore resolve the first issue in favour of the Appellants by holding that on the pleading and evidence led before the tribunal, the 1st Appellant was educationally qualified to contest the election. Grounds 1 & 4 of the grounds of appeal therefore succeed.

On the second issue, learned Counsel for the 1st & 2nd Appellants argued that the grounds on which the Petition was anchored in relation to this issue is one of massive and wide spread electoral malpractices such as violence, snatching and hijacking of ballot boxes, failure to supply electoral materials, denial of voting rights, non counting of votes, and non collation of results. These according to him were criminal allegations which ought to be proved beyond reasonable doubt by the Petitioners at the lower tribunal. Referring to the evidence of some of the witnesses for the petitioners, Counsel submitted that their evidence did not establish the allegations made in the petition on electoral malpractices and offences nor was it established (assuming there was any such evidence) that the 1st Appellant authorized any of them.

Counsel further argued that the tribunal did not evaluate the evidence of the 1st Appellant witnesses and make findings on them. It was Counsel’s further submission that the lower tribunal was wrong in raising the issue of discrepancy in the date of birth of the 1st Appellant when that was not an issue on the pleaded facts.

In their reply to the arguments of the 1st & 2nd Appellants on this issue, the 1st & 2nd Respondents contended that the tribunal devoted substantial part of its Judgment to careful restatement of the pleadings of the parties, analysis of the evidence adduced, and consideration of the submission of counsel on all sides before arriving at its decision that the petition has been proved. Copious references were made by Counsel to portions of the Judgment of the tribunal to adumbrate this argument. Counsel further contended that the pleadings of the Petitioners contain several averments of misdeeds for the avoidance of the election, and so, they needed not prove all the allegations to succeed in the petition. He argued that the lower tribunal properly evaluated the evidence laid on all sides, and considered the exhibits tendered before arriving at the Conclusion that the petitioners had proved their case.

It is important to emphasis that one of the basis for the lower tribunal’s nullification of the election was that it was not established by the Appellants that election materials got to Ilaje Local government Area of the constituency and that voting, counting and collation of votes actually took place. It therefore held that it was not proved that voting took place in the Local Government according to law. For ease of reference the relevant portion of the Judgment at page 445 of Vol. 1 of the records reads:

“In the Circumstances, the Petitioners having led evidence that election materials were not received and that there was no voting, counting of votes’ or collation of results in Ilaje Local Government Area, the onus therefore shifts to the Respondents to prove that the elections materials got to the Local Government and that voting, counting and collation actually took place. The evidence of the 1st Respondent’s witnesses in this regard was first and foremost stereotyped. Secondly, that voting took place has not been proved according to Law. No voters’ register was tendered.

Only one voter’s Card, Exhibit 15 was tendered showing just an X mark at the back and no Presiding Officer was called.”

But this finding completely contradicts the tribunal’s earlier finding at page 431 of the records that the holding of an election was established on the state of pleadings. For ease of reference, the relevant portion of the Judgment of the tribunal on this crucial finding is herein reproduced. It is at page 431 Vol. 1 of the record of appeal which reads thus: “We have carefully considered the pleadings, and evidence of the parties and we have also given careful consideration to the final addresses of Counsel. From the pleadings the following facts are admitted and require no further proof:

1. ……..
2. ……..
3. ……..

4.

5. The Ilaje/Eso – Odo Federal Constituency consist of two Local Governments namely Ilaje and Eso – Odo Local

Government Areas.

6. While Ilaje Local Government has 12 Wards and 271 Polling Units, Ese-Odo has 10 Wards and 126 Polling Units.

Thus there are 22 Wards and 397 Polling Units in the two Local Government Areas.

7. The said election was held on 21st April, 2007 and Scores were recorded by the 3rd Respondent for the respective Candidates who contested the election. While 349 votes were recorded for the 1st Petitioner, 33, 316 votes were recorded for the 1st Respondent.
8. The 1st Respondent was returned by the 3rd Respondent as the winner of the said election.”

Among the foregoing findings, the most crucial and far reaching one is finding No. 7 namely that election was HELD on the 21st of April 2007 in the two Local Government Areas of the Constituency which in the words of the tribunal required no further proof.

The word HELD is the past tense of the verb hold.

To hold is to conduct according to Law: for example to hold an election.

See BLACK LAW DICTIONARY 7TH EDITION Page 736.

Having found as above that this fact requires no further proof, the tribunal was in serious error to have turned round to destroy the operative effect and essence of that finding by its later finding as already reproduced in this Judgment “that voting took place has not been proved according to Law”.

Besides most of the witnesses, if not all, called by the Petitioners i.e. 1st and 2nd Respondents in this appeal notably PW2 – PW6 were mere Supervising Agents for their parties in the Wards who had their interest to protect. On the other hand, the 1st Appellant who was 1st Respondent in the lower tribunal called witnesses who gave evidence that they voted in the election. The evidence of RW3 were in this regard. Their evidence was not destroyed by Cross examination. The Sixth witness for the 1st Appellant was an Agent in the Polling Unit and tendered the result in those Units. Therefore the evidence of RW1 – RW6 established the facts of voting and the holding of election, and support the finding of the tribunal above to the effect that

“Having carefully considered the pleadings and evidence of the parties and having also given careful consideration to the final addresses of Counsel …….. the following facts are admitted and require no further proof namely that the said election was held on 21st April 2007, and scores were recorded by 3rd Respondent for the Respective Candidates who contested the election. While 349 votes were recorded for the 1st Petitioner, 33,316 votes were recorded for the 1st Respondent. ”

Even then, there was a misapplication on the issue of the Principles of onus of proof.

Virtually all the allegations in the Petition apart from the issue of qualification, were grounded on electoral malpractice and offences which by their character and purport were criminal in nature. So the burden was on the party that made those allegations to prove them beyond reasonable doubt, in this case, therefore, the burden was on the 1st and 2nd Respondents as petitioners in the lower tribunal to prove those allegations that were alleged to have stalled the election beyond reasonable doubt. See DIGIA V. NANGHANG (2005) All FWLR (PT. 240) 41 at 71.

NWOBODO V. ONOH …

OMOBORIOWO V. AJASIN ..

OKOTIE V. OLUGBO (1995) 5 SCNJ. 217.

At page 113 of vol.2 of the record of appeal i.e. Judgment of the lower tribunal (on corrupt practice) where the tribunal observed that out of the Ten Wards in which allegations of electoral malpractice and offences took place, the petitioner was able to lead evidence in respect of Six. It is not enough to mention just six, but there must be a finding that those Six Wards affected the result of the entire election.

Secondly, what was the nature of those malpractices in the six wards. Page 71 of the Judgment which is at page 1138 of the records where the tribunal identified certain units of Wards as where the electoral malpractice took place.

The nature of the malpractices were neither given, nor were the names of the perpetrators mentioned for the purpose of belief or disbelief. The tribunal observed that the allegation of thuggery, violence and hijack were not stoutly Controverted. The pleading of the 1st & 2nd Respondents denied the allegations sufficiently to place the burden of proof beyond reasonable doubt on the Petitioners. One is at loss to appreciate how “stoutly” a denial should be.

Not only that the Petitioners in the lower tribunal not prove those allegations, but also the tribunal wrongly placed the burden of proof on the 1st Respondent.

Where a Court or tribunal as in this case wrongly places the onus of proof on a party when the burden should be the other way round, any Judgment based on such an erroneous placement is liable to be set aside. See ONOBRUCHERE V. ESEGIE (1986) All NLR 294 at 295.

ANAEDOBE V. OFODILE (2001) 5 NWLR PT. 706,365 at 381.

In the light of all that have been said above on the pleadings and evidence, this second issue is bound to be resolved in the negative. Grounds 2, 3, 5 – 13 Succeed.

The Judgment of the lower tribunal delivered on the 5th of May 2008 is hereby set aside.

The election of Agboola Ajayi as member representing Ese-Odo/Ilaje Federal Constituency in the House of Representatives is hereby affirmed. I make no order as to Costs.

---

Other Citations: (2009)LCN/3257(CA)