Jude Ise-idehen & Anor V. Henry O. Okhuarobo & Ors (2009)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A.
This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal Holden at Benin City, Edo State delivered on 21st day of April, 2008. The panel that heard the petition comprised Honourable Justices PETER N.C. UMEADI, A.S. TAHIR, ODANDE OGBUNIYA and S.M. ANJOR. Being dissatisfied with the whole decision, the Appellants filed a Notice of Appeal on 9th day of May, 2008. The Notice of Appeal containing 7 grounds is at pages 600-610 of the records.
The 1st Respondent, Henry O. Okhuarobo jointly brought a petition with his political party, the Peoples Democratic Party, the 2nd Respondent challenging the declaration of the 1st Appellant who is the candidate sponsored by the 2nd Appellant, the Action Congress, for the election held on the 14th day of April, 2007, into the Edo State House of Assembly, Ikpoba-Okha Constituency, as the winner of the said election. The 3rd to 17th Respondents are statutory body of persons and bodies charged with the responsibility of conducting the election whose result was challenged in the trial Tribunal. By his petition, the 1st Petitioner in the Tribunal below and 1st Respondent herein claims that he has a right to have been declared or returned as the winner of the election into the Edo State House of Assembly, Ikpoba-Okha Constituency.
THE PETITIONER BROUGHT HIS PETITION BEFORE THE TRIAL TRIBUNAL CLAIMING:
- That although elections took place in the various Wards 1,2,3,4,5,6,7,8 and 9 on the 14th April 2007 of the Edo State House of Assembly, Ikpoba-Okha Constituency, the results of the election in the nine wards were not properly collated.
- That the various result from the polling unit (as reflected in the various From EC 8A(i) at Wards 1,2,3,4,5 and 9 of the Edo State House of Assembly Ikpoba-Okha Constituency were not properly collated and that all the relevant results in the Form EC 8A(i) referred to in this petition should be properly collated in Form EC 8B(i) for the said Wards.
- That upon a proper collation of the lawful votes cast at the election, JUDE ISE IDEHEN would
be found not to have been duly elected or returned and the said HENRY O. OKUAROBO was duly elected and ought to have been returned.
- That the purported “returning” of the 1st Respondent as the person/candidate, Ikpoba-Okha Constituency to Edo State House of Assembly in the Legislative House Elections held on the 14th day of April, 2007 and the purported elections and return of the 1st Respondent be nullified.
- That Henry O. Okuarobo was the winner of the election for Edo State House of Assembly, Ikpoba-Okha Constituency based on proper collation of the lawful votes cast at the election.
- An order returning the 1st Petitioner as the elected candidate of the Edo State House of Assembly in Ikpoba-Okha Constituency in the Legislative House Election held on the 14th day of April, 2007 been a qualified candidate to contest the said election and having polled the highest number of lawful votes in the election of 14th April, 2007 in the said Ikpoba-Okha Constituency, Edo State House of Assembly.
In the main, the Petitioner in the trial tribunal challenged the return/declaration of the 1st Appellant as the winner of the election on the ground that he did not score the majority of lawful votes cast at the election, this, he claimed resulted from thuggery activities of the 2nd Appellant’s supporters who prevented INEC collation officers from collating the overall valid votes legally cast at the said election. ”
At the close of the case the Tribunal held as follows:
“In the light of the totality of the evidence adduced, coupled with the counsel submissions we are fortified in holding that there was no proper collation of the results. The Petitioners prayer includes:
That the purported “returning of the 1st Respondent as the person/candidate elected as member representing the Ikpoba-Okha Constituency at the Edo State House of Assembly Elections held on the 14th day of April, 2007, and the purported election and return of the 1st Respondent be nullified.
The Respondent wants us to dismiss the petition. It is the submission of the Respondent that the necessity to call the presiding officers or unit agents becomes more imperative in the light of the defence put up by the 1st and 2nd Respondents that the agents of the Petitioners took the result sheets to unknown destination to fill and later smuggle them in for collation.
The Petitioners too submitted that it was the Respondents in varying degrees that made proper collation of the result impossible. There is also an allegation RW2 before this Tribunal that a whole vehicle load of election materials was snatched. These allegations and counter allegations cast doubt on the authenticity of results, we therefore refused the application to collate the result of the election.
We accordingly annul the election and return of the 1st Respondent. We order the cancellation of Certificate of Return and order that a fresh election be conducted by INEC within 90 days from to day the 21st April, 2007. ”
The Appellant being dissatisfied by the judgment filed Seven (7) Grounds of Appeal set out herein without particulars.
GROUND ONE:
(MISDIRECTION)
“The Learned Trial Tribunal misdirected themselves in law and came to wrong finding of fact that misled them in their decision to annul the election when they held at page 24 of the judgment that “out of 340 (three hundred and forty) polling units only 137 polling units results were collated leaving 201 units un collated, and as rightly submitted this evidence alone without more, is sufficient for this Honourable Tribunal to hold that there was no proper collation of results. ”
GROUND TWO
(ERROR IN LAW)
The Learned Trial Tribunal erred in law when they nullified the election of 1st Appellant on the basis that results of election were not fully collated at Local Government levels, a matter which cannot substantially affect the conduct of the election; but, if proved, only calls for an order for proper collation by the combined provisions of section 69(c) and section 163 of the Electoral Act, 2006.
GROUND THREE
(ERROR IN LAW)
The Learned Trial Tribunal erred in law in granting the prayers of the Petitioners based on grounds and reliefs that are unknown to the Electoral Act, i.e. non collation of results.
GROUND FOUR
(MISDIRECTION)
The Learned Justices of the Election Tribunal misdirected themselves and made a wrong evaluation of facts thereby occasioning a miscarriage of justice, when they decided the petition on the basis of evidence led by respondents, notwithstanding that after evaluation of the evidence of petitioners, the case pleaded was not made out, and the relief sought for are not consistent with the case pleaded.
GROUND FIVE
(MISDIRECTION)
The Learned Trial Justices of the Tribunal misdirected themselves in law and came to a perverse decision to annul the election and the return of the 1st Appellant on the ground that;
“Electoral officer was under intense pressure at the time of the collation” and that atmosphere at the constituency collation centre was very tense”.
And thus concluding that:
“In the light of the totality of the evidence adduced, coupled with the counsel submissions we are fortified in holding that there was no proper collation of the results”.
GROUND SIX
(MISDIRECTION)
The Learned Trial Tribunal misdirected themselves when they acted on the basis of allegations, without finding them proved to annul the election of 1st Appellant and cancellation of his certificate of return thus:
(The Petitioners too submitted that it was the Respondents in varying degrees that made proper collation of the results impossible. There is also the allegation RW2 before this Tribunal that a whole vehicle load of election materials was snatched.
These allegations and counter allegations cast doubt on the authenticity of results, we therefore refuse the application to collate the result of the election. We accordingly, annul the election and return of the 1st Respondent. We order the cancellation of Certificate of Return and order that a fresh election be conducted by INEC within 90 days from today the 21st April, 2007″.
GROUND SEVEN
(OMNIBUS)
The judgment is against the weight of evidence.
It is of note that the Petitioners (1st & 2nd) also cross-appealed through their Notice of Appeal and grounds stated therein. In line with the practice of the court, briefs were filed by both sides and the Appeal and the Cross-Appeal were consolidated and on 28/4/09 when the appeal came up for hearing, Mr. Owonikoko leading other counsel for the Appellants in the main appeal adopted and relied on the Appellant’s brief dated 23/1/09 but deemed filed on 16/3/09 and he urged the court to allow the appeal. He said the petition ought to have been dismissed. He argued his Preliminary Objection against the Cross-Appeal and on behalf of the 1st and 2nd Cross Respondent. His objection is centered on page 3 to 10 of his Brief of Argument dated 25/3/09 he adopted same as his argument and relied on it that the Cross-Appeal should be dismissed relying further on P.D.P. V. INEC (1999) 11 NWLR (pt. 626) 174, at 265 – 266.
Mr. Orbih leading other counsel for the 2nd Respondent adopted his brief dated 30/3/09 (in the main appeal) and urged it on the court to dismiss the appeal. He also adopted his Cross-Appellant’s brief dated 10/3/09 and filed on 11/3/09 but properly deemed filed and served on 16/3/09. He also filed a Reply Brief dated and filed on 30/3/09. His answer to the Preliminary Objection is contained therein. He urged the court to dismiss the Preliminary Objection but to allow the Cross-Appeal.
Mr. Uzamere for the 3rd to 17th Respondents reacted to both appeals and he adopted the brief dated and filed the same day 20/3/09. He said he aligned himself with the Appellants in the main appeal. In the Cross-Appeal he filed a brief on 24/3/09 and adopted and relied on same and he abides with the result of the Preliminary Objection.
Mr. Owonikoko is of the opinion that the 3rd to 17th Respondents had conceded to the appeal. The Cross Respondent in his Preliminary Objection has the following:
“TAKE NOTICE THAT AT THE EARLIEST RESUMED HEARING date of the Cross-Appeal filed by the Cross-Appellant/Respondent herein as per Amended Notice of Cross-Appeal dated and filed in the registry of this court on 11th day of March, 2009 1st and 2nd Cross-Cross-Respondents/Objectors intend to raise preliminary objection in limine to the competence of the Amended Notice of Cross-Appeal and Cross-Appellant’s Brief filed in respect of thereof on the grounds set out hereunder.
GROUNDS FOR OBJECTION
(a) The Cross-Appeal herein was jointly filed by 1st and 2nd Petitioners in the trial tribunal despite the fact the election they challenged was nullified.
(b) The sole relief sought in the Cross-Appeal is for the court to grant “… all reliefs sought in the Petitioner’s petition, more particularly an order declaring the Cross-Appellant as the winner of the election for member for Ikpoba-Okha Constituency of the Edo State House of Assembly.”
(c) The only relief which the lower court did not grant the Petitioners was to declare Petitioners winners of the election.
(d) The 1st Petitioner who was the candidate and sought to be declared winner of election has withdrawn his appeal against the refusal of the trial tribunal to declare him winner of the election.
(e) By the withdrawal of 1st Petitioner’s appeal, the appeal has been overtaken by events and same has become academic.
(f) The Cross-Appellant lacks the locus standi to prosecute the Cross-Appeal after the withdrawal of same by the original 1st Cross-Appellant.
(g) The continued pursuit of this appeal by 2nd Petitioner Cross-Appellant alone constitutes an abuse of court process.
Mr. Owonikoko in his brief after stating the history of the case stated that by a Motion on Notice dated 10/3/09 filed on 11/3/09 the Cross-Appellant’s Notice of Appeal was amended to delete the name of Original 1st Cross-Appellant from the appeal. This is so because the erstwhile Cross-Appellant withdrew his Notice of Appeal. He said in effect the withdrawal of the appeal automatically stood dismissed citing Order 11 Rule 5 of the CAR 2007. He also submitted that the Grounds of Appeal of the Cross-Appellant at Page 611 – 618 of the Record is the same as the amended Notice of Cross-Appeal except that the name of the 1st Cross-Appellant is missing.
He argued that the relief which the lower tribunal did not grant the Cross-Appellant was to declare them the winner but now the (1st Petitioner) who was the candidate and sought to be declared winner of the election has withdrawn his appeal against the refusal of the Trial Tribunal to declare him winner of the election. He argued that by the withdrawal, the appeal has been overtaken by event. He further said the continuous pursuit of this appeal by the 2nd Cross-Appellant constitute an abuse of process of court. He cited the case of PADAWA V. JATUA (2003) 5 NWLR (Pt. 813) 247 saying that an Appellant is one who resorts to an appellate court for a review of a decision against him by a lower court. He said the withdrawal of the 1st Cross-Appellant without a legitimate or live issue. He argued that the PDP cannot benefit from the outcome of the appeal. He cited OKONKWO V. NGIGE (2006) 8 NWLR (Pt. 981) CA 119 at 135-136. He said the appeal becomes academic. See PDP V. INEC (1999) 11 NWLR (Pt. 626) SC 244. He argued further that what the 1st Cross-Appellant did in this case amounts to death of a candidate. He said further that it is not open to one party or his counsel to plead the case of another party who is not pursuing the case and who is not represented by any counsel. OBASANJO V. YUSUF (2004) 9 NWLR (Pt. 877) SC at 186.
By Exhibit A the 1st Cross-Appellant had decamped to the side of the Appellant. He argued that automatically such a person had vacated his seat assuming he has one. He concluded that for the PDP to continue to prosecute the Cross-Appeal in the face of the withdrawal of the candidate amounts to an abuse of court process, a worthless dissipation of the energy and time of the court.
In answer to the Preliminary Objection, the Cross-Appellant refers to the case of AMECHI V. INEC (2008) 5 NWLR (Pt. 1080) Page 227 at 317-318 where the importance of a political party is stressed saying it is the party that wins election. He urged the court to hold that PDP has locus standi to pursue the relief sought in the Cross-Appeal. The lack of interest of the candidate does not/cannot prevent the party from pursuing the case to the logical conclusion.
The learned counsel argued that the 1st Cross-Appellant has only filed a Notice of Discontinuance of his appeal that Notice of Discontinuance cannot translate into a renunciation of his candidacy.
He argued that the submission of the learned counsel is misconceived and therefore should be discountenanced. He also submitted that S. 109 of the Constitution of the Federal Republic of Nigeria does not arise as the decampee is not yet a member of the party. He finally urged the court to dismiss the Preliminary Objection of the 1st and 2nd Cross-Respondents.
Let me say here that before the Appeal and Cross-Appeal was called the 1st Respondent who is also the 1st Cross-Appellant withdrew his appeal by filing a Notice of Discontinuance.
Order 11 Rules 1 and 5 provides;
“1. An Appellant may at any time before the appeal called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend to prosecute the appeal any further.
- An appeal which has been withdrawn under this Rule, whether with or without an order of the court, shall be deemed to have been dismissed.”
This is so whether there is an order of dismissal or not made by the court.
Thus the filing of the Withdrawal Notice in the Registry of the Court of Appeal or the lower court will have the same effect as an order of dismissal. The Rule is to prevent an uncertainty with which a Respondent may be confronted or on the other hand the abuse to which the procedure could be subjected to if an Appellant withdraws his appeal and still retains the liberty to file the appeal again without the necessary leave or extension of time since the appeal was not dismissed. See EZOMO V. A.G. BENDEL STATE (1986) 17 N.S. CC Pt.1 1754 where a party has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it will be unjust or inequitable to the other party for him to do so.
It was held in FOLARIN V. AYANRINOLA (2007) 12 WRN 79 at 83-84 that it is settled law that once a notice of discontinuance of an appeal is filed in the Court of Appeal as in this appeal, such appeal is deemed withdrawn and consequently dismissed with or without a formal court order to that effect. See also MAJEKODUNMI V. WAPCO (1992) 1 NWLR (Pt. 219) 564 at 577- 578.
I therefore have no doubt in my mind that the 1st Cross/Appellant had withdrawn his Cross-Appeal and had therefore terminated same even in the lower tribunal. There is therefore as far as the 1st Cross-Appellant is concerned, there is no longer any appeal pending. See SHEWU & ANOTHER V. AFRIBANK NIGERIA PLC (2003) 4 WRN 42. Therefore the Cross-Appeal by the 1st Cross-Appellant stands dismissed.
The primary purpose of any Preliminary Objection is to terminate or determine the proceedings in which it was raised. If successful, then such proceeding would come to an end and nothing would remain for the court but to make a consequential order of striking them out. See also OKOT V. IBIANG (2002) FWLR (Pt 117) 1053.
The question now to be asked is if the Cross-Appeal of the Cross-Appellant succeeds, what will be the result or the outcome of the Cross-Appeal.
At the conclusion of his brief, the Cross-Appellant concluded thus, I quote:
“On the above premise, we respectively urge this Honourable Court to allow this Cross-Appeal by setting aside the judgment of the Honourable Tribunal and in its place, collate the result of the election as reflected in the unchallenged chart of the uncollected result, merging same with the collated result wherein it will be filed that the Cross-Appellant scored majority of lawful vote cast on the election of 14th April, 2007; the subject matter of this Cross-Appeal as an order declaring the Cross-Appellant as the winner of the House of Assembly election for Ikpoba-Okha Local Government Area, Edo State”.
From the above quoted, the 1st Cross-Appellant whose appeal is dismissed is the beneficiary of the result. One can force a horse to the river but cannot force it to drink. How can a sympathizer cries more than the bereaved?
The court cannot make an order in vain. I agree with the Appellant that it will be a futile exercise in fact, an academic exercise that will yield unfruitful result.
Something is academic when it is purely theoretical in nature. The Cross-Appeal will serve no useful purpose in the absence of the 1st Petitioner.
Furthermore, I hold that the relief sought can be accommodated and dealt with in the main appeal. The Preliminary Objection is upheld and the Cross-Appeal is struck out.
MAIN APPEAL
I have referred to the briefs filed by the parties. The 3rd to 17th Respondents’ briefs are in line with the Appellant’s argument and he urged the court to allow the appeal of the Appellants. In order words, they have conceded that they support the Appellants and that their appeal be allowed.
With respect to the 1st Respondent. He did not file any brief neither was any filed on his behalf. What then is the effect? Order 17 Rule 10 provides as follows:
“Where an Appellant fails to file his brief within the time provided for in Rule 2 of the Order or within the time as extended by the court, the Respondent may apply to the court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file a brief he will not be heard in oral argument” (underline mine for emphasis)
I agree with the reasoning in the case of ABUBAKAR & ANOR V. INEC (2004) 1 E. AC 1 where it was decided that the Electoral Act makes no provision for this. I therefore resort to the provisions of the Court of Appeal which provides that where the Respondent fails to file Respondent’s brief. It is Order 17 Rule 10 of the Court of Appeal Rules that disallows oral argument where the Respondent fails to file his brief. It is safe however to conclude that facts contained in the Appellants brief are not denied if the Respondent fails for any reason to file a valid brief.
It is claimed that the 1st Respondent had failed to file a Respondent’s brief when the Appellants brief was served on him he thereby failed to answer the part of substance in the Appellants brief. In his brief the Appellant distilled three (3) issues for determination. The issues are stated hereunder:
ISSUE (1) ONE
WHETHER IT WAS OPEN TO THE TRIAL TRIBUNAL TO CANCEL THE UNCHALLENGED RESULT OF THE ELECTION WON BY APPELLANTS WHEN RESPONDENT CONCEDED THE RESULTS AND LED NO CREDIBLE EVIDENCE IN SUPPORT OF ALLEGATION THAT FURTHER RESULTS WERE AVAILABLE AS REQUIRED BY LAW BUT WERE NOT COLLATED.
GROUNDS 1, 4, 5 & 6
ISSUE (2) TWO
WHETHER THE PROPER ORDER TO MAKE IN THE FACE OF THE EVIDENCE LED IN THIS CASE WAS NOT ONE UPHOLDING THE ELECTION AND RETURN OF APPELLANTS AS HAVING WON MAJORITY OF LAWFUL VOTES IN THE ELECTION OR AT WORST ORDERING FRESH ELECTION ONLY IN THE SPECIFIC UNITS/WARDS WHERE NON-COLLATION WAS PROVEN CONTRARY TO LAW.
GROUNDS 2 AND 3.
ISSUE (3) THREE
HAVING REGARD TO THE PLEADINGS IN THIS CASE AND COUPLED WITH THE PRESENT STATE OF OUR ELECTORAL ACT, 2006 WHETHER SUBSTANTIAL NON-COMPLIANCE WAS PROVED TO WARRANT CANCELLATION OF THE ENTIRE ELECTION.
GROUND 7.
The 2nd Respondent, on his own formulated two issues thus;
ISSUES FOR DETERMINATION:
ISSUE ONE
Whether or not the Trial Tribunal was right when it held that there was no proper collation of results and as a result nullified the election of the Appellant and in ordering a by-election for the constituency.
ISSUE TWO
Whether the Honourable Tribunal was right in its refusal to collate the polling unit results of the election and nullifying the result of the election after its findings that the Appellant has proved that there was no proper collation of results. This issue was formulated from grounds 2 and 3 of the Grounds of Appeal.
The Appellants adopts their summary of facts and it was based on the facts that the Appellants were declared winner of the election into Ikpoba-Okha Constituency of the Edo State House of Assembly at 14th April, 2007 Election with a total of thirteen thousand, two hundred and fifty-seven (13, 257) vote.
He argued that the injustice of the tribunal in failing to confine itself to the ground on which the petition was presented having referred to Section 140, 145 and paragraph 4(1) (d) of the first schedule to the Electoral Act 2006. He argued that facts provided in support of a ground will not be relevant to that ground and the grounds itself must be one which is recognizable in an election petition. Refers to OBASANJO V. YUSUF (2004) 9 NWLR (Pt 877) SC 144 at 181 F.G.
He argued that facts of election petition are controlled by the grounds.
He asserted that if a Petitioner intends to rely on irregularities so as to vitiate an election he must allege corrupt practice and non-compliance as grounds of his petition. He argued that in an election petition based on declared winner having not scored the majority of lawful votes only the scores of the candidate are in issue as the matter that should proceed to hearing.
He argued that the Petitioner/1st Respondent chose the ground of their complaint with careful precision. He claimed to have won majority of valid votes cast at the election. The ground is anchored on Section 145 (1) of the Electoral Act. He also argued that a look at the petition and the relief sought never sought for nullification of the election. Therefore the judgment was based on a relief that was never sought for.
He argued that it is only where irregularities was asked for and made out, it is then that a tribunal can nullify an election. He argued that the relief being relied upon by the 1st Respondent is of probative value. He referred to the evidence of the 1st Respondent with regards to Wards 03, 04, 05 and 09. Particularly evidence of PW2 which he quoted inextenso.
He also referred to evidence of PW3 and he is of the opinion that the 2nd Respondent’s case had been all but destroyed. He argued word by word as seen in the petition. He submitted that when the question is whether Petitioner or Respondent won by majority of lawful votes, the tribunal had a duty purely arithmetical based on the result tendered in evidence. NGIGE V. OBI (2006) 14 NWLR (Pt. 999) 1 at 237. He also relied on the case of AJUDUA V. NWOSUM 2 (2004) 16 NWLR (Pt. 598) CA 79 at 89-90 where it was held that oral evidence or private unofficial document cannot be relied upon to prove result of an election. He argued that the Petitioner never proved that any result other than that declared by INEC was authentic.
In his opinion what the Tribunal ought to have decided is “Did the Petitioner win majority of lawful votes at the election instead of the Appellant?” He said the Tribunal was never assisted by any credible evidence.
He argued that the Tribunal misdirected itself by relying on mere allegations and thereby cancelled the election. He therefore urged on the court to answer issue 1 in the negative.
The 2nd Respondent’s Issue 1 can be dealt with in the same Issue 1 as formulated by the Appellant. In his argument he relied on page 595 of the Record i.e. RW7. He argued that the 3rd to 17th Respondents admitted that the result of Ward 1 Iwogban/Uteh was not collated because it was not found at the time of collation. Similarly, Ward 4, Ward 9. He said the 3rd to 17th Respondents never challenged the authenticity of the unit results. He argued that the issue involved in this petition was certainly not as wide as the Appellant made them to appear in his Issue 1.
He quoted the evidence of RW4. He observed that the 1st and 2nd Respondents (I am sure he meant the Appellants) were responsible for the improper collation of election result and they should not benefit from their own wrongdoing. Refers to ADEDEJI V. MBM LTD (1989) 1 NWLR Pt. 96 at 212 and ABO-EKANEM V. AKPAN (1981) 8 NWLR Pt. 211 Page 616. He argued that what the returning officer did was selective collation. He finally urged the court to hold that there was sufficient evidence before the tribunal on which it based its decision that there was no proper collation of result. Let me just refer to the 3rd to 17th Brief of Argument, he has this to say and I quote:
“Furthermore INEC remains the body charged with the conduct of elections in this country and have tendered exhibits on the conduct of the House of Assembly Election to Ikpoba-Okha Constituency of Edo State House of Assembly held on 14h April, 2007 at the end of which the 1st and 2nd Respondents were declared winners.
The legal presumption is that the 1st and 2nd Respondents below and the Appellants herein won the election and in the evaluation of evidence of parties, this must be taken into account unless and until it is displaced or rebutted by the Petitioners which has not been done in this petition. U.B.N. Ltd v. Osezuah (1997) 2 NWLR (Pt 485) 28 at 32 R.13. By virtue of Section 150 (1) of the Evidence Act, there is the presumption that official acts have been done rightly and regularly until the contrary is proved. Cash Affairs v. Inland Banks (2000) 5 NWLR (pt 658) 572, R.4; Adun v. Osunde (2003) 16 NWLR (Pt 847) 643 at 648. R.4. The trial Tribunal erred in not taking all this into consideration.
In Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 310/312. R. 56, it was held that the Petitioners were unable to adduce credible evidence in respect of some of their allegations of electoral irregularities.
In such cases, the Respondent had no burden to prove the regularity of the election in those areas.
The law is well settled at all times, and even in election petitions, that the Plaintiff or the Petitioner as the case may be, ought to succeed first and foremost on the strength of his own case. The onus on the Petitioner in this respect has not been discharged.
Iwueke v. IRC (2005) 17 NWLR (Pt. 955) 447 at 458, R.9. They did not discharge this onus in the court below.
We submit that none of the reliefs claimed by the Petitioners in the Trial Tribunal. The onus of proof has therefore not shifted. The onus of proof is on him who asserts. It is only when a Claimant has produced credible evidence that prima facie established his claim that the onus would shift on the person asserting the opposite to adduce evidence in rebuttal. We refer to the case of E.D. Tsokwaq & Sons Co. Ltd. v. UB.N. Ltd (1996) 10 NWLR (Pt 478) 281 at 285 – 287, R.6.
It is the law that anybody who wants to indulgence of a court must make available to the court all the relevant materials by way of evidence or otherwise on the issues to be considered by the court. This has not been in this petition. T.A.S.A. Ltd. v. Dantrans (Nig.) Ltd. (1996) 10 NWLR (Pt 478) 360 at 363. R. 5.
We urge your Lordships to resolve this issue in Appellants’ favour.
The question now is was it open to the Tribunal to cancel the unchallenged result of the election strictly as declared by the 3rd to 17th Respondents. A Petitioner who files a petition under S. 145 (1) of the Electoral Act has the burden to prove the ground or grounds. This is because he is the partly alleging the grounds and he has a duty to prove the affirmative. He is the party who will loose if no evidence is given on the grounds. If he does not prove his case, the action fails. The burden of first proving the existence of a fact lie on the party against whom judgment may be given. See BUHARI V. INEC (2009) 167 LRCN I.
It is the case of the 2nd Respondent that proper collation was not made and the collation was selective. It is in evidence that at the time the collation was being done the result of some wards were not tendered or available. There were allegations and counter allegations that there were thuggery and molestation on both sides. It was in evidence that the uncollated results were later found amongst dumped documents at the INEC Ikpoba-Okha Office where collation took place. It was also in evidence that the dumping was done by unidentified persons.
There is no doubt that a court should not on its own embark on consideration of facts which are not relevant to the complaint of the Petitioner.
BUHARI V. INEC Supra. The grounds of the Petitioner are clear and unambiguous. In adjudicating on election petition, the question of who scored majority of lawful votes cannot rightly be countenanced in the election petition.
This is because the consequence of each of the two grounds is not the same.
Determining who scored majority of lawful votes leads to deciding who won the election whereas irregularities in the conduct of an election, if substantially it affects the result of the election leads to nullification. See ONWUDINIJO V. DIMOBI (2006) 1 NWLR Pt. 961 CA 318 at 335.
I have quoted the submission of the 3rd to 17th Respondents. The simple reason is that votes declared for the Petitioner by INEC enjoys presumption of regularity rather than votes ascribed by Petitioner to themselves but not supported by INEC. Electoral Results need only be shown not to have been declared by INEC in order for the Petitioner to resume his burden of proving the genuiness of the votes he claimed. This is because if it was otherwise it will be inconsistent with S. 317 of the Evidence Act Cap 112 Law of the Federation of Nigeria (1999).
In this appeal, the tribunal did not find that Petitioner scored majority of lawful votes nevertheless proceeded to consider whether the evidence of the atmosphere where collation was conducted was conducive or not and seized upon that finding to nullify the election. It is trite that the decision of a court must be based only upon facts and materials placed before it by the parties in dispute. It is not the business of a trial court to make out a case for a party. See UNOKA V. AGILI (2007) 43 WRN 168.
After consideration of the above, the submission of learned counsel and the authorities, I hold that the Tribunal was wrong to have cancelled the result of the election as presented before it, Issue 1 is therefore answered in the negative and therefore in favour of the Appellant. Issue 2 and 3 were argued together. The Appellant argued that if the Tribunal has been properly guarded in its decision, the right verdict would have been to uphold the election. The allegation of the Petitioner would not have had any substantive effect on the outcome of the election.
He argued that thuggery and shooting cannot be evidence of a ground complaining about who won majority of lawful votes to be declared winner of the election. He relied on S. 141 (1) of the Electoral Law of 2006. He argued that having regard to the ground for petition being strictly limited to majority of lawful votes, substantial compliance was a non-issue. He argued that a petition is to be confined within its grounds. Refer to OGBORU V. IBORI (2004) 7 NWLR (Pt.871) CA 192 at 223 – 224 where it was held that irregularities is not in any way synonymous with corrupt practice or non-compliance being the specific statutory reasons set out. The wording of the statute where it is clear and unambiguous should be strictly adhered to without recourse to any other statute.
He argued that there was substantial compliance was proved in 201 out of 340 polling units counter to the calculation made by the Tribunal. He argued that unaffected polling units is 340 less 88 = 252. He also argued that the Tribunal did not evaluate the evidence before it.
In his own Issue 2 the 2nd Respondent did not reply directly to Issue 2 & 3 as formulated by the Appellants Brief distilled in his issue 2 thus:
“Whether the Honourable Tribunal was right in its refusal to collate the polling units result of the election and in nullifying the result of the election after its finding that the 1st and 2nd Respondents have proved that there was no proper collation of the results.”
Let me say without mincing words that the 2nd Respondent had at all times dealt with the petition as if it was the Respondent that should prove their case. This is not so. There is no doubt that why the 2nd Respondent wanted the Tribunal to collate were dumped result sheets at INEC office. In E.S. & C.S. LTD V. NMB LTD (2005) 7 NWLR (Pt. 924) CA 218. The court is obliged to evaluate the oral and documentary evidence placed before it before any meaningful findings can be embarked upon.
In KEZIE V. IWUOHA (1998) 8 NWLR (Pt. 563 at 554 – 565, it was held that where it is evident that the evaluation was defective, the appellate court has a duty to examine the grounds on which the conclusion and inference are made and to re-evaluate the evidence and take a different view. It is in evidence that the papers which the 2nd Respondent wanted the Tribunal to collate were the dumped results. The Tribunal was right to have refused to collate the said results as they were very unreliable and suspectible.
Notwithstanding the refusal to collate, the Tribunal went ahead and nullified the election. No doubt Section 146 (1) of the Electoral Law provides thus; ‘So 146 (1) 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 Election Tribunal or court that the election was conducted substantially in accordance with the principles of the act and that the non-compliance did not affect substantially the result of election’.
This Section substantially deals with compliance in the conduct of elections. The complaint in this case is that of collation and not noncompliance.
In fact there were evidence that in many parts of the wards the election was free and fair. Election results are presumed to be correct until the contrary is proved. In other words, there is a presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correction and authenticity of the result to rebut the presumption. See OMOBORIOWO V. AJASIN (1984) 1 SC NLR 108, FINEBONE V. BRUNO (1999) 4 NWLR (Pt. 600) 613 and BUHARI V. INEC Supra. In this instant appeal the 2nd Respondent did not contest the corrections of the declaration but that of papers that were not collated. Justice of a case cannot be determined in vacuo but in relation to the facts of the case. Justice so to say which is not done with the facts of a case is not justice properly so called but justice is inverted comma and therefore injustice.
BUHARI V. INEC Supra at 112.
Furthermore, a court is bound to grant only reliefs claimed. It cannot grant reliefs not claimed. KALIO V. KALIO (1975) 2 SC 15, OLUROTIMI V. IGE (1993) 6 NWLR (Pt. 311) 257 and THE SUPREME COURT of ATIVIE V. KABEL METAL (NIG.) LTD. (2008) ALL FWLR (Pt. 430) 667.
In the circumstance of this case and having noted above that 1st Respondent is presumed not to deny the contents of the Appellants brief, I hold that the Tribunal did not make a proper order when it cancelled the election and the return of the Appellants. I also hold that substantial non-compliance was not proved. The appeal is meritorious and it therefore succeeds. The order of the lower tribunal annulling the election and certificate of return of 1st Appellant is set aside.
I award N30,000.00 cost in favour of the Appellant against the 2nd Respondent.
Other Citations: (2009)LCN/3396(CA)
