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3PLR – AKINWE VICTOR ADESULE V. AKINFOLARIN MAYOWA S. & ORS

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POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AKINWE VICTOR ADESULE

V.

AKINFOLARIN MAYOWA S. & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 8TH DAY OF FEBRUARY, 2011

CA/B/EPT/80/2008

3PLR/2011/9 (CA)

 

 

BEFORE THEIR LORDSHIPS:

SYLVESTER NGWUTA, JCA

CHINWE IYIZOBA, JCA

MOORE A.A. ADUMEIN, JCA

BETWEEN

AKINWE VICTOR ADESULE – Appellant(s)

AND

  1. AKINFOLARIN MAYOWA S.
  2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
  3. RESIDENT ELECTORAL COMMISSIONER ONDO STATE
  4. THE RETURNING OFFICER, ODIGBO CONSTITUENCY 1, ODIGBO LOCAL GOVERNMENT AREA
  5. THE NIGERIAN POLICE
  6. THE COMMISSIONER OF POLICE ONDO STATE
  7. THE NIGERIAN ARMY – Respondent(s)

REPRESENTATION

  1. OLUMIDE AYENI, FCI Arb – For Appellant

AND

  1. J.O. OLATOKE

KELECHI OHAHUNA, ESQ

IDACHABA J.C.A. ESQ – For Respondent

MAIN ISSUES

ELECTION LAW – ELECTION PETITIONS – COMPUTATION OF TIME: Presentation of election petitions – When time begins to run – Section 141 of the Electoral Act, 2006 in review – Whether court can advert to the Interpretation Act in resolution thereof –

ELECTION LAW – ELECTION PETITIONS – INTEPRETATION ACT:- Importation of – Whether in interpreting the construction of the provisions of the Electoral Act 2006, the intention to apply the Interpretation needs to be expressly stated or implied from the Act itself

ELECTION LAW – ELECTION PETITIONS – REVIEW OF ELECTORAL LEGISTATIONS:- Section 141 of the Act – Review of Electoral Legislations from 1958 to 2006 – Legal effect

ELECTION LAW – ELECTION PETITIONS – IRREGULARITIES IN ELECTION:- Distinction between procedural irregularity and an act which is null and void in an election petition

ELECTION LAW – ELECTION PETITIONS – JOINDER OF PARTIES:- Police officer or military officer alleged to have rioted at an election rather than maintains law and order  – When needs to be made necessary party in the election petition – Effect of failure thereto

ELECTION LAW – ELECTION PETITIONS – PROOF OF FORGERY:- Where the petitioner alleges forgery of results – Proof of – Where a necessity to present two sets of result, one that is correct and another that is false in proof of his allegation

ELECTION LAW – ELECTION PETITIONS – STANDARD OF PROOF:- Rule that where the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt – Applicability of with respect to election petitions

ELECTION LAW – ELECTORAL MATTERS – PROOF OF ELECTION:- Party who asserts that election was conducted – Whether has the evidential burden of proving same

ELECTION LAW – ELECTORAL MATTERS – ELECTION RESULT:- Content of election result in Form EC 8A – Effect of – Whether the polling booth results as set down in Form EC8A, is the primary evidence of the votes cast in an election

PRACTICE AND PROCEEDURE – EVIDENCE – Sections 136 and 137 of the Evidence Act – Commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.

PRACTICE AND PROCEDURE – EVIDENCE – CROSS-EXAMINATION: The effect of failure to cross examine a witness on a particular matter

PRACTICE AND PROCEDURE – EVIDENCE – STANDARD OF PROOF: The standard of proof required where evidence is so strong against a man as to leave only a remote possibility in his favour

PRACTICE AND PROCEDURE – COURT – PRECEDENT AND CASE LAW – THE DOCTRINE OF STARE DECISIS: Effect of a judgment of a Court of Appeal under the doctrine of stare decisis

INTERPRETATION OF STATUTE – PARAGRAPH 49 FIRST SHEDULE SUB SECTIONS (2) AND (5) OF THE ELECTORAL ACT: The provision of Paragraph 49 First Schedule Sub sections (2) and (5) of the Electoral Act with respect to the effect of the competence of the petition not raised timeously at the lower tribunal and the issue heard and determined before any further steps are taken in the proceedings

INTERPRETATION OF STATUE – Paragraph 50 of the First Schedule to the Electoral Act, 2006 – Order 23 rule 1 sub-rules (a) and (d) of the Federal High Court (Civil Procedure) Rules

INTERPRETATION OF STATUE – Section 99 (4) of Decree No. 36 of 1998 – S. 134 of the Electoral Act 2010

INTERPRETATION OF STATUE –Intent of the legislature in interpreting the construction of the provisions of the electoral Act 2006

INTERPRETATION OF STATTUE – Regulation 123 of the Election (House of Representative) Regulation 1958 where it was stipulated that “The election Petition shall be presented within one month after the date on which the election is held.”

INTERPRETATION OF STATUE – S.108 (4) of the Electoral Decree No. 73 of 1977 – election petition to question an election or return shall be presented not later than 14 days from the date of the election – Electoral Act 2001 – 30 days from the date the result of the election was declared.

INTERPRETATION OF STATUE – The golden rule of interpretation of statute is that words must prima facie be given their ordinary meaning

WORDS AND PHRASES – “FROM”: Meaning of the word “from” when used in a Statute in the computation of time – Section 141 of the Electoral Act, 2006 –

WORDS AND PHRASES – “After the date” – Meaning of the word

WORDS AND PHRASES – Whether “From the date…” and “after the date…” cannot be used interchangeably as each means a different thing in terms of time and place – The word “after” means, inter alia, “Coming later in time than something or following someone or something in position or behind –  “from” means “a starting point in place or time.”

MAIN JUDGMENT

CHINWE IYIZOBA, (J.C.A.) (Delivering the Leading Judgment):

This appeal is against the Judgment of the Governorship/Legislative House Election Tribunal Holden at Akure, Ondo State (Coram: Hon. Justice G.M. Nabaruma, Hon. Justice M. A, Oredola, Hon. Justice A.E. Okon, Hon. Justice D.I. Okungbowa, Hon. Justice A.S. Umar) delivered on 21st day of January, 2008 wherein the Petitioner/Appellant’s petition was dismissed.

The brief facts of the case are that on the 14th day of April, 2007, INEC, the 2nd Respondent conducted an election for the House of Assembly, Odigbo Constituency 1 Ondo State. The Appellant herein was the candidate of the Labour Party (LP) in the election. The 1st Respondent was the candidate of the Peoples Democratic Party (PDP). There were two other candidates:

  1. Akintayo A. (Action Congress)
  2. Akinwehinmi S.O. (Democratic Peoples Alliance)

Odigbo Constituency of Ondo State is made up of six wards namely:- Agbagbu ward 01; Ajue ward 03; Ebijaw ward 06; Odigbo ward 08; Ore 1 ward 10; and Ore 2 ward 11. The parties are on common ground that the election in Ebijaw ward 06 was cancelled by INEC. At the end of the election, the 4th Respondent, the returning officer declared the 1st Respondent the winner. The results declared were as follows:-

  1. Akintayo A. (AC) 2250
  2. Akinwehinmi S.O. (DPA) 310
  3. Akinwe V.A. (LP) 8223
  4. Akinfolarin M.S. (PDP) 10726

The Appellant being dissatisfied with the result of the election presented a petition before the Governorship/Legislative Houses Election Tribunal sitting at Akure on the 14th day of May, 2007 claiming the following reliefs:-

  1. “That it may be determined and thus determined that the 1st Respondent Akinfolarin Mayowa S. was not duly elected returned by the majority of lawful votes cast at the House of Assembly elections held in Odigbo Constituency 1, Odigbo Local Government Area on Saturday 14th April, 2007.
  2. That it may be determined that the said election and return of the 1st Respondent are voided by acts which clearly violate and breach various provisions of the Electoral Act No. 6 2006 including but not limited to rigging and manipulation of election results, acts of violence, thuggery and coercion of opponent committed at the wards and units aforementioned, as well as unlawful interference in the electoral process by political office holders in Odigbo Local Government.

iii.      That it may be determined and thus determined that the results of the House of Assembly Election in Odigbo Constituency 1, for the 2 wards of Ore II ward 11, Odigbo ward 8, Units 001, 003, 011, 012, 013 and 015 in Agbabu ward 01, in Odigbo Local Government as declared and announced variously by 2nd, 3rd and 4th Respondents be nullified.

  1. That it may be determined and thus determined that the purported Election and return of the 1st Respondent, Akinfotarin Mayowa S. as Elected member of the House of Assembly for Odigbo Constituency is void and in his stead, declaring as duly elected and return, the Petitioner, Akinwe Victor A. having scored the majority of the Total number of lawful votes cast at the said election as shown in Paragraph 18.
  2. An order mandating the 2nd Respondent to issue immediately to the Petitioner his certificate of return.
  3. In the alternative to the above, that the election in the said wards and units be voided and/or set aside and a fresh election ordered.

vii.     In further alternative to (v) above, that a fresh election be ordered throughout the wards and units in Odigbo Constituency 1 in accordance with the provisions of the Electoral Act 2006.”

The case of the Appellant at the Tribunal was that there was massive violence, hijacking of ballot boxes, multiple thumb printing of ballot papers and occurrences of other wide spread electoral offences by the 1st respondent, PDP leaders and political office holders who were assisted by armed PDP thugs, renegade soldiers and policemen who acted as agents of the 1st Respondent. Consequently, 1st Respondent was not duly elected by majority of lawful votes cast at the election as there was no election in the entire (a) Ore II ward 11 ( b) Odigbo ward 08 and (c) Polling stations nos. 001, 003, 011, 012, 013 and 015 Agbabu ward 01. It was also the Appellant’s case that if the scores attributed to the wards and units mentioned above are deducted from the results declared by the 4th Respondent, the scores on the basis of lawful votes cast will be:- Appellant … 5669; 1st Respondent…5404.

The 5th and 6th Respondents filed their joint reply on the 16th day of June, 2007. They denied all the allegations made against the police and contended that elections were held in all the wards except Ebijaw ward 06 where the election was cancelled by INEC.

The 1st Respondent filed his reply to the petition on the 19th day of July, 2007, also denying all the allegations in the Petition. The 2nd – 4th Respondents did not file any reply as their motion to file out of time was refused and dismissed by the Tribunal.

At the trial, the Petitioner called a total of ten witnesses and tendered several documents. The 1st Respondent called nine witnesses and also tendered documents. The 5th and 6th Respondents did not call any witness. On 21/1/08, the Tribunal delivered its judgment and dismissed the Appellant’s Petition. Dissatisfied with the judgment, the appellant appealed to this court by notice of appeal dated 18/2/08 with 16 grounds of appeal – pages 321 – 334 of the record of appeal.

In compliance with the Practice Directions, all parties filed their respective briefs of argument with that of the Appellants dated 18/5/08 and filed on 19/5/08. The 1st Respondent on receipt of the appellant’s notice of appeal filed a notice of preliminary objection on 23/3/09 on the ground that the petition was incompetent having been filed in the lower Tribunal outside the statutory period. The appellant on 27/3/09 filed a reply to the preliminary objection. The 1st Respondent’s brief of argument in the appeal is dated 19/8/08 and filed on 20/8/08 but deemed properly filed and served on 27/1/09. The 2nd – 4th respondent’s brief is dated 11/9/08 and filed same day but deemed properly filed and served on 27/4/08. The 5th and 6th Respondents’ brief is dated 20/12/08 and filed on 12/1/09 but deemed properly filed and served on 27/1/09. On 6/12/10, at the hearing of the appeal, Dr. Olumide Ayeni for the appellant by motion on notice withdrew the appeal against the 7th Respondent who was consequently struck out as a party in the appeal. Although hearing notices were allegedly served on the 1st – 4th Respondents through their respective counsel, neither they nor their counsel appeared. The court then heard the appeal and adjourned the case for judgment. On 14/12/10, Dr. J.O. Olatoke learned counsel for the 1st respondent and Kelechi Ohahuna Esq., learned counsel for the 2nd – 4th respondents by their respective notice of motion prayed for an order setting aside the proceedings of the court of 6/12/10 for non-service of hearing notices on the 1st – 4th respondents. After hearing the parties the court set aside the proceedings of 6/12/10 and re-heard the appeal. Thereupon, the parties adopted and relied on their various briefs on the preliminary objection and on the substantive appeal. Contrary to the claims of Kelechi Ohahuna Esq for the 2nd – 4th respondents and Idachaba J.C.A. for the 5th and 6th respondents, the 2nd – 6th respondents did not file any brief on the preliminary objection. Both Counsel filed briefs of argument in respect of the main appeal.

The contention of Dr. Olatoke in his preliminary objection briefly is that the lower Tribunal had no jurisdiction to entertain the petition as it was statute barred. He argued that the result of the election was declared on 14/4/07 while the petition was filed on 14/5/07, 31 days from the date of declaration of the result contrary to Section 141 of the Electoral Act 2006 which provides that the election petition shall be presented within 30 days from the date the result of the election is declared. Relying on several authorities including AC v. Jang [2009] 4 NWLR (Pt. 1132) 475 @ 508 – 509, Dr. Olatoke argued that time begins to run from the date of the declaration of the result of the election so that a petition filed 31 days from the date of declaration of the result was incompetent. Learned counsel further submitted that both the tribunal and this court lacked the jurisdiction to entertain the petition and this appeal and urged us to strike out the appeal.

Counsel further submitted that the failure or omission of the 1st respondent to raise the issue before the tribunal cannot constitute a waiver or acquiescence as the issue touches on the jurisdiction of the court; and jurisdiction being a threshold and radical issue can be raised at any stage of the proceedings.
The second limb of the preliminary objection is that the appeal was not filed within time and was statute barred by virtue of Section 149 of the Electoral Act 2006 which provides that the notice and grounds of appeal shall be filed in the Registry of the Tribunal within 21 days from the date of the decision appealed against.

Dr. Olumide Ayeni, learned counsel for the appellant in a well researched brief in reply dealt with all the issues raised by Dr. Olatoke in his preliminary objection. From the briefs and decided cases referred to, I discern two schools of thought as to when time begins to run for presentation of election petitions. The first school subscribe to the view that time begins to run from the date of declaration of result. They are of the view that Section 141 of the Electoral Act, 2006 which provides that “An election petition under this Act shall be presented within 30 days from the date the result of the election is declared” must be given a strict literal interpretation and that from the date of the declaration of the result means exactly what it says. Computation of the 30 days must begin from the date the election result is declared. Any contrary interpretation would mean leaving the domain of interpretation reserved for the courts and trespassing into the field of legislating reserved for the Legislature. This reasoning no doubt seems rational and quite compelling as it represents the actual literal interpretation of the relevant section and the prevalent view in this court as shown in the following cases:-

  1. Fadare v. A.G. Oyo State (1982) 13 NSCC 52.
  2. Alataha v. Asin (1999) 5 NWLR (Pt.601) 32
  3. Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637. 4. Ogbegbor v. Danjuma (2003) 15 NWLR (Pt.143) 403
  4. Jallco Ltd. v. Owoniboys Tech services Ltd. (1995)4 NWLR (pt 391) 534
  5. Kumalia v. Sheriff (2009) 9 NWLR (Pt. 1146) 420.  7. AC v. Jang (2009) 4 NWLR (Pt 1132) 475
  6. Akume v. Lim (2008) 16 NWLR (Pt. 1114) 490.  9. Ikharaiale v. Okoh (2009) 12 NWLR (Pt. 1154) 1 per Shoremi JCA; Ogunwunmiju and Gumel JJCA dissenting.  10. Adesanva Olaoluwa v. Adesina Samuel Ajayi & ors

The second school of thought believe that in interpreting Section 141 Electoral Act, recourse must be had to Section 15(2)(a) of the Interpretation Act, Cap 192 Laws of the Federation 1990 which provides:

“A reference in an enactment to a period of days shall be construed where the period is reckoned from a particular event, as excluding the day on which the event occurs”

Or Order 23 Rule 1 of the Federal High Court (Civil Procedure) Rules which provides:-

“Where by any written law or special order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding and the time is not limited by hours, the rules following shall apply:-

  1. The limited time does not include the day of the happening of the event but commences at the beginning of the day next following that day.
  2. The act or proceeding shall be done or taken at least on the last day of the limited time.
  3. Where the time limited is less than five days, public holidays, Saturday or Sunday shall be reckoned as part of the time.
  4. When the time expires on a public holiday, Saturday or Sunday, the Act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being a public holiday, Saturday or Sunday.”

The reasoning is that the Electoral Act 2006 contains no provision on how to compute the periods prescribed in the Act for taking certain actions and also as to what should happen if the 30th day falls on a public holiday. It was therefore inevitable to fall back on the Interpretation Act or the Federal High Court (Civil Procedure) Rules 2000. The cases that fall under this category are as follows:-
1.       Iyirhiaro v. Usoh (1994) 4 NWLR (Pt 597) 41.

  1. PDP v. Haruna (2004) 16 NWLR (Pt.900) 597
  2. Awuse v. Odili (2004) 8 NWLR (Pt.876) 481 @ 505.
  3. Galaudu v. Kamba (2004) 15 NWLR (Pt.895) 31 @ 60
  4. Kamba v. Bawa (2005) 4 NWLR (Pt.914) 43 @ 78.
  5. Akeredolu & ors v. Akinremi (1985) 2 NSCC 1283
  6. Yusuf v. Obasanjo & ors (2003) 16 NWLR (Pt. 847) 554.
  7. Dissenting views of Osunwunmiju & Gumel JJCA in Ikharaiale v. Okoh (supra).
  8. Babajide Omoworafe v. Iyiola & Ors
  9. Arise & Anor v. Adetunbi & Ors (Unreported) CA/IL/EP/SEN/27/2008 of 8/7/09

Two of the judgments above are Supreme Court Judgments (Akeredotu and Yusuf). My humble view is that by the doctrine of stare decisis we are bound by the decisions of the Supreme Court. That apart, notwithstanding that we are here concerned with election petitions which are said to be sui generis; it appears the first school of thought is following a position long abandoned in England in the 19th century. See the cases of Re North Ex parte Hasluck (1895) 2 QB 265. @ 269 – 270 per Lord Esher M.R and the view of Risby L.J at pages 273 – 274. See also the view of Denning L.J in Pritam Kaur v. Russels & Sons Ltd (1973) QBD 336 @ 348. The resolution of the dispute in England to exclude the day of the happening of the event as in the above English cases was what prompted our law makers to include the relevant provisions in the Interpretation Act. The provisions of the Interpretation Act apply to all legislation in Nigeria unless expressly excluded either by the Interpretation Act itself or the relevant legislation. See Section 1 of the Interpretation Act. If the Electoral Act had specifically made provisions for the method of computation of time and what should happen if the last day fell on a public holiday, then the Interpretation Act would have been excluded. It did not. In my humble view, there is no other option than recourse to the Interpretation Act as in the Supreme Court cases of Yusuf and Akeredolu. In Kaueama v. National Electoral Commission (1993) 3 NWLR (Pt. 284) 681, Salami JCA as he then was in dealing with the issue of computation of time recognized that the Supreme Court decision in Akeredolu was binding on him.

Some of my learned brothers of this court who feel that a liberal interpretation of Section 141 of the Electoral Act is the better view seem constrained to join the first school of thought because that is the majority view of this court pending when a full court can be set up to set aside the decision and views in several cases by the full court in different divisions. See the dissenting view of Ogunmumiju J.C.A. in Ikharaiale v. Okoli (supra) @ 48 F-G. See also the contribution of Augie J.C.A. in Olaoluwa v. Ajayi (Unreported) Appeal No. CA/B/EPT/278/08 of 3/2/10. Indeed, Dr. Olatoke pointed out to us while arguing his preliminary objection that the case of AC v. Jang (supra), is a judgment of the full court which cannot be overruled by us sitting as a three man panel. This is quite a novel proposition. In my humble view a judgment of a court of appeal is a judgment of the court of appeal, whether of the full court or a panel of three and such judgment is subordinate to a judgment of the Supreme Court under the doctrine of stare decisis. See Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536 @ 564 Per Uwais CJN (rtd).

An interesting point raised by Dr. Ayeni in his reply brief to the preliminary objection is that if the competence of the petition is not raised timeously at the lower tribunal and the issue heard and determined before any further steps in the proceedings, the court is deprived of the jurisdiction to entertain any such objection pursuant to Paragraph 49 First Schedule, Electoral Act No 2, 2006.
Paragraph 49 First Schedule Sub sections (2) and (5) of the Act provide:

“49 (2) An application to set aside an election petition or a proceeding resulting there from for irregularity or being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.

(3)…  (4)…

(5)     An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”

The contention of Dr. Ayeni is that notwithstanding that the issue of the petition being statute barred is one of jurisdiction which could render the petition null and void, by failing to raise it timeously at the tribunal, the jurisdiction the tribunal and this court to consider it is ousted by Paragraph 49 first Schedule, Electoral Act. This of course runs counter to all known principles of law ordinarily. When an act is a nullity, it is void and has no legal consequence. The act is not only bad, it is incurably bad. You cannot put something on nothing. Dr. Ayeni justifies the provision by the fact that election petitions are sui generis and proceedings there under are governed by and subject to special rules defined by Statute. With all due respect to learned counsel, a distinction must be drawn between procedural irregularity and an act which is null and void. Notwithstanding that Section 49(2) included election petitions that are a nullity, all the cases counsel referred to dealt with procedural irregularities. For example in Abubakar v. I.N.E.C. (2004) 1 NWLR (Pt. 854) 207, the irregularity alleged was failure to comply with Section 132 of the Electoral Act 2002 and paragraph 4 of the 1st Schedule thereto. (Failure to join as parties the running mates of the Governors and other security agents and to state scores and political parties). See; Ngwu v. Mba (1999) 3 NWLR (Pt.595) 400 also concerned procedural irregularity – failure to specify grounds for the petition and scores of the candidates. The case of Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342 also concerned procedural irregularity – non joinder of electoral officers. Where an election petition is statute barred, the tribunal lacks the jurisdiction to entertain the petition. Jurisdiction being a threshold issue, it can be raised at any point, even on appeal. Paragraph 49, First Schedule, Electoral Act does not apply to such cases.

With respect to the contention that the appellant’s notice of appeal was not filed within a period of 21 days from the date of judgment of the lower tribunal contrary to the combined provisions of the Practice Directions No 2, 2007 and Section 149 Electoral Act, 2006, I agree with Dr. Ayeni that the provisions apply only in respect of a candidate who was successful at the election and returned but whose election and return was invalidated by the election tribunal. He must file within 21 days. But in the case of a candidate who was unsuccessful at the election and whose petition before the election tribunal failed, Paragraph 51 of the 1st Schedule to the Electoral Act 2006 is applicable because there is no specific provision in the Electoral Act No 2, 2006 as to when such candidate may file his notice of appeal. By Section 24 2(a) of the Court of Appeal Act, Cap C 36 Laws of the Federation of Nigeria 2004, he has three months within which to file his notice of appeal against the final decision of the tribunal. There are many authorities on this as surprising as it appears. See Aregbesola v. Oyinlola (Unreported) Appeal No. CA/I/EPT/GOV/02/2010 of 26/11/10 pp 117 – 120. See also Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941).

In conclusion on the issue of jurisdiction, all the parties herein are ad idem that the result of the election was declared on the 14th of April, 2007. The Petition of the appellant was filed on the 14th of May, 2007. Excluding the 14th of April and beginning to count from the 15th of April, the petition was filed on the 30th day and so within time. Even if the 14th was not excluded and counting started from that day, the 30th day was 13th May, 2007, a Sunday; the petition having been presented the next working day 14/5/07 was within time. Consequently the lower Tribunal had jurisdiction to entertain the Petition and this Court also has jurisdiction to entertain the appeal.

On the effect of Paragraph 49 First Schedule, Electoral Act No. 2, 2006, for the reasons already stated, the paragraph does not apply. The 1st respondent is in order to have raised the issue at the appeal court, being a matter of jurisdiction which can be raised at any stage.

The appellant filed his notice of appeal on 18/2/08. The judgment of the Tribunal was delivered on 21/1/08 – a period of 29 days. The period of 29 days is well within the period of three months limit prescribed by Section 24(2) Court of Appeal Act. The notice of appeal was competent and validly filed, this appeal not being one within the ambit of Section 149 of the Electoral Act, 2006.

The sole issue formulated in the notice of preliminary objection is resolved in the affirmative against the 1st Respondent. It is hereby dismissed. Now to the main appeal, from the 16 grounds of appeal raised by the appellant, his counsel formulated one sole issue for determination of the appeal viz:

“Whether on the state of the pleadings, materials and evidence before the lower Tribunal, the appellant (as Petitioner) was entitled to have the election and return of the 1st Respondent by the 2nd and 4th respondents as member representing the Odigbo State Constituency I in the Ondo State House of Assembly following the election of 14th April, 2007 nullified, and in its stead declaring as duly elected and returned the Appellant”

 

On behalf of the 1st Respondent, one sole issue was also conceived for the determination of this court. It is:

“Whether on the state of the pleadings and issues joined therein and upon the documentary and oral evidence adduced before the lower Tribunal, the lower Tribunal arrived at a right, proper and reasonable conclusion by dismissing the appellant’s Petition in its entirety.”

The 2nd – 4th Respondents’ sole issue for determination is as follows: Whether the Honourable Tribunal was right in law when it dismissed the Appellant’s petition challenging the return of the 1st Respondent by the 2nd and 4th respondents as member representing the Odigbo Constituency 1 in the Ondo State House of Assembly following the election held on the 14th day of April, 2007.

Mr Idachaba Counsel for the 5th and 6th Respondents also conceived one sole issue for determination:

“Whether the appellant’s Petition as constituted and the evidence adduced thereto, the lower tribunal rightly dismissed the petition.”

The sole issue conceived by the Appellant is basically the same as that of all the Respondents, notwithstanding the slight variations in language. I shall now consider the submissions of counsel on the sole issue.

Dr. Ayeni, of counsel for the Appellant in his brief examined the pleadings relating to Odigbo ward 08 in paragraphs 16(i) (ii) & (vii) of the petition, the evidence of PW1, PW2, PW10, Exhibits A1, A2, B1 – B2, C, D, M1- M19; the evidence adduced for the Respondents in respect of this ward by RW3 and RW5 and then submitted that election was not held at all in many of the 29 polling units in the ward and that in the few polling units where election was purportedly held, agents of the 1st Respondent disrupted the election by beating up and man handling the agents of the Appellant. It was further alleged that the 1st Respondent’s agents engaged in acts of multiple thumb printing of ballot papers with the assistance of soldiers brought to serve the sole interest of PDP who sponsored the 1st Respondent. Counsel impugned the evidence of RW3 and RW5 who claimed that elections were held in the ward and that they voted, for failing to tender their voters’ cards. Counsel further submitted that the details as to particulars of RW3 and RW5 in Exhibits M1-M19 exposed them as liars whose evidence should not be believed because their testimony as to their age varied with their age as shown in the exhibits. Referring to the case of State v. Ajie (2000) 11 NWLR (Pt. 678) 434 @ 449, Counsel submitted that the findings and conclusions of the Election Tribunal on the evidence led by the parties in respect of Odigbo Ward 8 are perverse.

In respect of Ore II ward 11, Appellant’s Counsel referred to paragraph 17 (ii) of his petition, the evidence of PW3, PW5, PW8 and PW10 (the Appellant), and submitted that there was no election in the entire 11 units of Ore II ward 11. Counsel further submitted that the evidence of the witnesses called by the 1st Respondent that election was held and concluded and that results were collated and announced were thoroughly discredited when they failed to tender results in the prescribed Form EC8A (i). On the contrary, Form EC8A (i) which was tendered by the appellant through the 1st Respondent’s witness in cross-examination supported the claim of the appellant that elections did not take place in the relevant polling stations. Learned Counsel impugned the findings of the tribunal on these points as perverse and unsupported by the evidence adduced by the parties.

In respect of Agbabu Ward 01, Learned Counsel for the Appellant referred to paragraph 15(i) of the Petition, the evidence of PW6, PW7, PW9 and PW10 and submitted that election did not take place in polling units 001, 003, 011, 012, 013 and 015 because heavily armed PDP Chieftains and thugs acting as agents of the 1st Respondent and assisted by armed soldiers and mobile Police men disrupted voting by shooting into the air sporadically and scaring away voters. They stuffed ballot papers into ballot boxes in the 6 polling units mentioned and took the boxes away to unknown destinations. There were no counting of votes by presiding officers at the polling units and no results were entered into INEC Form EC 8A (i) at the polling stations. Counsel examined the findings of the lower Tribunal on the evidence led by the parties and submitted that they were perverse. Counsel further submitted that even though the 5th and 6th Respondents – the Nigerian Police and COP Ondo State were represented by counsel, they did not file any defence and did not adduce evidence at the hearing to challenge the evidence of the Appellant and his witnesses. None of the witnesses called by the 1st Respondent gave evidence for the Police or attempted to controvert the evidence given by the appellant’s witnesses against the Police. The lower Tribunal ought therefore to have admitted the evidence as uncontroverted. Same, counsel argued applies to the evidence of the particular individuals mentioned by the appellant’s witnesses as having participated in the violence and disruption of the elections in the disputed wards and polling units. None of the individuals was called to give evidence in denial and none of the witnesses called by the 1st Respondent denied the existence of the individuals. The evidence of the appellant’s witnesses, Counsel argued, went unchallenged. Learned Counsel relying on several authorities submitted that if the lower Tribunal had properly evaluated the evidence before it, it would have found that the evidence of the Appellant was largely uncontroverted and unchallenged and would have come to the conclusion that the petition had been proved beyond reasonable doubt. Counsel in conclusion urged us to resolve the sole issue for determination in the affirmative allow the appeal in its entirety, return and declare the appellant as the duly elected member representing Odigbo Constituency 1 in the Ondo State House of Assembly Election held on the 14th day of April, 2007.

In his brief of argument, Dr. J.O. Olatoke for the 1st Respondent on the sole issue for determination submitted that the lower Tribunal was justified in dismissing the Appellant’s petition in its entirety having regard to the state of the pleadings, issues joined, the documentary and oral evidence adduced by the parties and their witnesses. Counsel argued that the evidence adduced by the Appellant’s witnesses in respect of Ore II ward 11 is at variance with the appellant’s pleading in paragraph 17 (i) and (ii) in that in the pleading reference was made to unlawful allocation of votes while the evidence of the witnesses was based on allegation of violence by one Najeem Adegboye and Igbekele Lawrence purportedly commissioned by the 1st Respondent.

Counsel argued that the evidence consequently went to no issue. Counsel further argued that assuming without conceding that the evidence of the appellant and his witnesses corresponded with their pleading, the question would then be whether the appellant proved and/or established any agency relationship between Najeem Adegboye, Igbekele Lawrence and the 1st Respondent herein to justify or warrant the 1st Respondent being held liable or responsible for the conduct of the two men. Counsel submitted that the Appellant failed to establish that the 1st Respondent commissioned the alleged thugs to act on his behalf and consequently, he cannot be held responsible for their act or omission and that the lower Tribunal was right in its judgment. Counsel called in aid the cases of Modebe v. Okadiebo (1992) NWLR (Pt. 263) 1 @ 21 and Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 598 @ 611

With respect to Odigbo Ward 8, Learned Counsel for the 1st Respondent submitted that the allegations of forceful hijacking of ballot papers, multiple thumb printing of ballot papers by alleged PDP thugs in favour of the 1st Respondent are criminal in nature and that the Appellant must prove the allegations beyond reasonable doubt. Further the evidence must be clear and unequivocal. Counsel relied on several authorities and further submitted that the Appellant failed to discharge the burden in view of the evidence of RW5 whose evidence was diametrically opposed to the evidence of PW1. The evidence of PW1 was consequently oath against oath with that of RW5, and cannot therefore qualify as proof beyond reasonable doubt. Counsel argued that the Appellant’s witnesses led no evidence in respect of the allegation that the 1st Respondent’s agents disrupted the election by chasing away voters and forcefully hijacking ballot papers; the allegation must consequently be deemed  abandoned.
With respect to Agbabu ward 01, 1st Respondents Counsel submitted that PW6 and PW7 in their evidence in Chief stated that there were elections in units 012 and 015. They also stated that voting commenced in their various units. The pleading that there was no election was consequently not supported by the evidence of the Appellant’s witnesses. On the contrary RW1 and RW9 at the lower Tribunal stated in their witness depositions that the election in their units were peaceful and was not disrupted at any time. They were not cross examined by the Appellants Counsel on the alleged violence or malpractices in the two units in respect of which they gave evidence. Learned Counsel submitted that the Appellant having made grave criminal allegations which constituted the central core of the issue in his Petition failed to prove same beyond reasonable doubt and urged us to uphold the judgment of the lower Tribunal.

In the 2nd – 4th Respondents’ brief of argument it was submitted that the Appellant failed woefully to prove the allegations of violence, forgery, fabrication and falsification of election result, which allegations are criminal and must be proved beyond reasonable doubt as required by law. The appeal was therefore bound to fail. Counsel argued that all the oral and documentary evidence adduced by the Appellant before the lower Tribunal failed to satisfy the requirement of the law for nullifying an election result and urges us to so hold.

In his brief Idachaba J. C. A. of Counsel for the 5th & 6th Respondents submitted that the Appellant having based his petition on hundred per cent allegations of criminal offences is duty bound to prove the allegations beyond reasonable doubt. He must consequently state clearly and plead with precision and in specific material particulars the ingredients of the alleged crime including the names of the alleged offenders. Learned Counsel argued that the Appellant’s vague references in his pleadings to unnamed soldiers, PDP thugs, and mobile policemen without supplying their names or particulars amounts to nothing but speculative averments bereft of any legal fulcrum upon which any meaningful evidence of probative value could be established. Counsel called in aid paragraph 4 (i) (d) & (6) of First schedule to the Electoral Act 2006 and the case of Ojukwu v. Yaradua (2008) 4 NWLR (Pt 1078) 435 @ 441 – 445. Counsel further submitted that the Appellant did not join those he alleged conspired to carry out the criminal acts nor did he plead the facts of the alleged conspiracy and how the unnamed persons became agents of the 1st Respondent. Counsel finally urged us to dismiss the appeal in its entirety and uphold the judgment of the lower Tribunal.

I have carefully read the briefs of all learned counsel in this appeal and the record of appeal, my views are stated hereunder. At page 302 of the record of appeal, the lower Tribunal observed:

“It is trite that where issues are joined in a matter as in the instant petition, the onus of proof is on the party who would fail if no evidence is led, regard being had to any presumption that may arise from the pleadings. Where sufficient evidence has been led by the party who asserts, the burden of adducing rebuttal evidence then shifts to the other party against whom judgment will be given if no further evidence is adduced. See Ayogu v. Nnamani (2006) 8 NWLR (Pt 981) 160 @ 186-187.”

The above statement of the law is as provided in Sections 136 and 137 of the Evidence Act. Section 138 (1) further provides that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The Appellant in his Petition alleged that the election results were forged, fabricated, falsified, concocted, or inflated. He also alleged snatching of ballot boxes multiple thumb printing, stuffing of ballot boxes, rigging, thuggery, violence and intimidation of voters. These allegations are all criminal. The lower Tribunal is right in its conclusion that the Appellant to succeed in the case must establish the criminal allegations beyond reasonable doubt. Learned Counsel for the Appellant in his brief had argued that the Lower Tribunal did not evaluate the evidence before it properly because if it had done so, it would have found that the evidence of the Appellant was largely uncontroverted and unchallenged and would have come to the conclusion that the Petition had been proved beyond reasonable doubt as proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. It is trite as stated by Denning J in Milner v. Minister of Pension (1947) All ER 372 that if evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence of course, it is possible but not in the least probable, the case is proved beyond doubt. See Buhari v. Obasanjo (2005) 2 NWLR (Pt.910) 241.

The question here therefore is whether the trial tribunal was right in its conclusion that the appellant failed to prove the allegations of crime in this petition beyond reasonable doubt.

 

 

In respect of Odigbo ward 08 the Appellant pleaded in paragraph 16 (i) (ii) & (vii) of the Petition thus;

“(i)     Your Petitioner states that this ward consists of 29 polling units. Elections were not held in many of the units, and where they purportedly held, the said elections were marred by irregularities, violence, chaos and other malpractices perpetrated by the Respondents.

(ii)     Your petitioner states that in Adaja Village, there are 4 polling Units with code number 020, 021, 022 and 023; that electoral materials were brought to the 4 units and that voting commenced at about 11.00 a.m but heavily armed PDP thugs assisted by soldiers acting as agents for the 1st Respondent disrupted voting by chasing away voters and forcefully hijacking the ballot papers which were thumb printed in multiples by the PDP thugs in favour of the 1st Respondent. Purported results of votes cast were thereafter recorded into Forms EC8A (i) and EC8B (i). The Petitioner’s agent did not sign result sheets.

(iii)    Your Petitioner further avers that the Respondents forged the purported signature if the Petitioner’s agent on Form EC8B (i).

Your Petitioner shall at the hearing contend that the purported results from the entire Odigbo Ward 08 are void and ought to be expunged from the result of the Constituency as declared by the 2nd, 3rd and 4th Respondents.

The evidence of the appellant (PW10) as contained in his witness deposition at page 39 of the record of appeal is that elections were not held in many of the units and where they purportedly held the said elections were marred by irregularities, violence, chaos and other malpractices by PDP thugs. Two other witnesses – PW1 and PW2 testified in respect of this Odigbo ward 08. The view of the trial Tribunal which is supported by the record of proceedings is that the evidence of the two witnesses contradicted that of the appellant in that they testified that there were elections up to a certain time.

PW1 Adebola Momoh said that voting started in the ward at 11:00 a.m. Under cross examination by Adisa at page 175 of the record of appeal, he said: “I was at unit 003 throughout the period of election. I don’t know if other party agents were there but I know Labour Party agent was there. The Enuwa Town hall is not enclosed and it is not an open field Adisa: Voting took place openly there PW1: It took place at the Verandah of the town hall

PW2, Oladejo Ikuduranmi in his written deposition stated that voting started at 11:00 a.m and that at 2.00 p.m. one Festus led thugs to disrupt the voting at his unit. Under cross – examination by Adisa at page 178 of record of appeal, he admitted that free and fair elections were conducted from 11.00 a.m to 2.00 p.m. without hindrance. He further admitted that elections were supposed to be rounded up before 3.00 p.m.

Apart from the contradiction in the evidence of these two witnesses and that of the appellant as to whether or not voting took place in many of the polling units in the ward, the trial Tribunal found their evidence as to fabrication of the election results, snatching of ballot boxes and multiple thumb printing in Odigbo ward 08 not convincing. In one breath, PW1 said in his deposition that he witnessed the multiple voting and non- checking of PDP members voting cards at Enuwa Unit because the Town Hall/Enuwa unit equally served as the collation centre, then in another breath he said that when the Labour Party agent Mr. Solomon Ogundipe reported the malpractices to him, he tried to intervene. PW1 further testified that it was at the end of the exercise at the collation that he found out that the figures brought from Town Hall/Enuwa Polling unit and four units at Adaja village were spurious. One cannot therefore fault the view of the Tribunal that:

“PW1 stayed put at polling Unit 003. It is clear from his evidence that he did not witness what transpired in the other four polling units. He placed reliance on reports which he received from other party agents. His evidence or conclusions regarding results from the said polling units as being spurious is therefore inadmissible hearsay”

Contrary to the view of Dr. Ayeni that the cross-examination of PW1 and PW2 left their evidence unshaken, I agree with the lower Tribunal that their credibility was dented by the fact that their written depositions were identical and did not contain most of the information revealed during cross examination. The lower Tribunal was also not impressed by their failure to report to the police at the police station the alleged beating, violence and manipulation of results. I cannot therefore fault the decision of the lower Tribunal in its refusal to grant the prayer that the result for the entire Odigbo ward 08 be declared void and expunged from the results of the constituency. Against the unreliable evidence led by the appellant as rightly found by the trial Tribunal, the 1st Respondent’s witnesses RW 3 and RW 5 gave evidence in respect of Odigbo ward 08. They both gave evidence that elections took place peacefully in the ward and that they voted. It thus became oath against oath. The Tribunal cannot be faulted in its finding that the Appellant being the person on whom the burden of proof rested failed to discharge the burden.

In respect of Ore II ward 11 learned counsel for the appellant complained about the findings of the lower Tribunal in respect of some of the exhibits tendered in evidence. Exhibit S is Form EC8A (i) serial no 008647 purportedly emanating from polling unit 08 Abatitun Village Centre Ore II ward 11. This document was tendered through RW8 under cross-examination by the Appellants counsel. RW8 had in rebuttal of the Appellants contention that election did not take place (as a result of widespread violence orchestrated by thugs hired by the 1st respondent assisted by heavily armed soldiers who disrupted voting process) testified that he voted and that election took place at his unit under peaceful atmosphere. RW 8 had admitted that exhibit S was the result he signed and that it did not bear the signature of the presiding officer. I agree with learned counsel for the Appellant that the finding of the lower Tribunal on exhibit S is perverse. The complaint of the Appellant is that there was no election as a result of the hijack of election materials by the person whose election is under challenge. A purported result emanating from such election which is not signed by the presiding officer and which bears no presiding officer’s name but found to bear only the signature of the agent of the political party accused of electoral malpractices surely presupposes that the reasonable inference is that it was fabricated by the agent of the political party whose signature is on it. The Lower Tribunal had referred to the case of Kwara Investment Co. Ltd. v. Garuba (2000) 10 NWLR (pt 674) 25 @ 39 on the principle that an unsigned document is entitled to no weight in law. See also Attorney General Abia State v. Agharanya (1999) 6 NWLR (PT 607) 362 & 371. In view of the mandatory provisions of section 75 Electoral Act, 2006 and paragraph 4.3 (8) at page 30 of the Manual for Election Officials 2007 which require that election result in Form EC 8 A (i) shall have the name of the presiding officer written on it together with the Presiding Officers signature, the Lower Tribunal ought to have declared Exhibit S, the result of the particular unit worthless and void for not bearing the name and signature of the Presiding officer; the agent, RW 8 having admitted under cross examination that it was the result of the election held in that polling unit.

Learned Counsel for the Appellant also complained about the finding of the Lower Tribunal that the evidence of RW6 and RW7 remained unchallenged because they were not cross examined on the substance of their evidence. Counsel argued that their evidence was challenged and contradicted by the evidence of PW3 and PW10. My view here is that the Appellant bore the burden of proving that elections did not take place in the polling unit due to the hijacking of the electoral materials by the 1st Respondents thugs with the assistance of armed policemen as stated by PW3 and PW10 in their written depositions. RW6 and RW7 in their own deposition maintained that elections indeed held under a peaceful atmosphere uninterrupted by any violence. The expectation is that Appellants Counsel would have cross examined them vigorously in order to show that they were not telling the truth when they said election was held under a peaceful environment. By confining their cross examination to the place and manner of making their written deposition, Appellant’s Counsel clearly left the substance of their evidence in the deposition unchallenged. Since the Appellant bore the burden of proving his case, by leaving the evidence of the Respondents witnesses unchallenged in the manner he did, the Appellant clearly failed to discharge the burden resting on him. The Lower Tribunal cannot be faulted in their finding that the evidence of RW6 and RW7 remained unchallenged. I agree with Counsel for the 1st Respondent that the effect of failure to cross examine a witness on a particular matter is a tacit admission of the truth of the evidence of the witness not cross-examined. See. Oforlete v. The State (2000) 12 NWLR (Pt. 681) 415 @ 440.

Learned Counsel for the Appellant further complained about the finding of the Lower Tribunal to the effect that:

“We have seen Exhibit F1 – F2 and considered the evidence and submission of Learned Counsel for the parties thereon. We are unable to discern arithmetical errors or inexactitude of substance therein and in the absence of full demonstration from the petition, we are of the firm view that the said Exhibits enjoy the rebuttable presumption of regularity, correctness and authenticity until the contrary is established”

The Appellant contended that it raised the issue of arithmetical error in paragraph 16 (IV) of its Petition but adduced no evidence on the point at the hearing of the Petition. Having abandoned that allegation, the finding of the Tribunal is not supported by the evidence placed before it. Counsel had argued that the Exhibits were tendered in respect of Ore II ward 11 to show that election did not hold and to enable the Election Tribunal nullify the purported election if satisfied that the Appellant proved his case as required by Law. Counsel further argued that the Tribunal was not entitled to use or rely on the Exhibits for purposes other than those for which the parties joined issues.
With all due respect to Learned Counsel, I do not agree with this line of reasoning. As stated by the Lower Tribunal the Petitioner pleaded in paragraph 17 (ii) and (iii) of his Petition that “fabricated results contained in Form EC8B (1) are found to be replete with arithmetic errors and alterations that are unendorsed”. Furthermore, it was averred that evidence shall be led “to show that all the purported results in Ore II ward 11 are fictitious and void and ought to be expunged from the results of the constituency.” Towards achieving this goal, the Appellant tendered Exhibits F1 – F2, summary of results in Form EC8 B (1) Ore II Ward 11 with serial Number 0001573. Having adduced this evidence, the Appellant cannot expect the Tribunal in examining the Exhibits to close its eyes to the allegation of arithmetical errors and alterations. In the circumstances of the case, the Appellant cannot claim that he adduced no evidence on the issue. The Exhibits tendered constituted the evidence and the Tribunal cannot be faulted for examining the Exhibits and commenting on the aspect of arithmetical errors. Obviously, having come to the conclusion as deduced from their judgment that the Appellant failed to discharge the onerous burden of proving that the results were fictitious and void, the question of expunging same from the result of the constituency did not arise.

The Appellant further complained about the finding of the lower Tribunal that Exhibit L – Form E C 8A (i) in respect of Polling unit 03 of Ore II ward 11 constitutes an admission against the interest of the Petitioner and buttresses the position of the 1st Respondent that election actually took place in the said unit. The contention of the Appellant is that there is no basis for such finding as Exhibit L was tendered by the Appellant (PW 10) to prove his case regarding the purported result of the election in unit 03 and not that election was held in the unit. The case of the Appellant it appears is that Exhibit L was tendered to show that there was no election in polling unit 03 of Ore II ward 11 and that the purported result in Exhibit L for that Polling unit was fabricated. The problem here is that Exhibit L was one of the documents tendered by the Appellant while giving evidence as PW 10 in a bunch without proper explanation or full demonstration as to the purpose for which the documents were tendered. The Lower Tribunal cannot therefore be blamed for not using the document in the manner expected by the Appellant when he failed to relate the documents to the relevant aspect of his case. The Tribunal is not expected to make a case for a party. Again the crucial question is what evidence was adduced by the appellant to prove that the result in Exhibit L was forged or fabricated? Absolutely none!
The complaint of the appellant that the finding of the lower tribunal in respect of Agbabu ward 01 is perverse is not supported by the evidence led in the case as shown in the record of appeal. At page 317 of the record of appeal, the lower Tribunal in its judgment observed:

“We state at this juncture that invariably, what we have said above in respect of Ore II ward 11 and Odigbo ward 08 also apply mutatis mutandi to the prevalent and similar facts scenario or situation in affected polling units in Agbabu ward 01”

The findings of the trial Tribunal in respect of the earlier two wards, Ore II ward 11 and Odigbo ward 08 are basically that the appellant failed to discharge the onus and standard of proof as required by law. There is no basis to question the findings of the Tribunal. For example, while the Appellant’s pleading in respect of Agbabu ward 01 is that there were no elections in six polling units, his own witnesses, PW6 and PW7 testified that there were elections in Units 012 and 015. They did also testify that voting commenced in their various units. The evidence of the appellant and his witnesses were in conflict. Further the trial tribunal found the appellant not to be a credible witness. In his written deposition on oath, he stated that he “received reports that normal voting process were fundamentally breached in some units and wards”, but under cross-examination, he now somersaulted stating that he witnessed all the information contained in his deposition himself and that the information was not what he was told. Again while he was very eager to volunteer evidence in respect of the purported acts of violence, he was evasive as to the time of the happening of the events he claimed to have witnessed. And then the question is as posed by 1st Respondent’s counsel “is it possible for a single individual to witness events that took place in 109 polling units of Odigbo constituency 1 as claimed by the appellant testifying as PW10?” “‘Were the acts of violence trailing PW10 to each polling unit he visited?” “How come the purported acts of violence took place only in the wards where the petitioner lost the election?” The appellant’s evidence is clearly incredible and it is not surprising that the trial tribunal came to the conclusion that the evidence of the Appellant fell short of what is expected to enable him succeed in the case. The trial Tribunal may have made one or two errors in their findings on particular issues. I have already mentioned one above in respect of Exhibit S. Another is the finding of the Tribunal regarding the allegation of use of soldiers and mobile policemen to disrupt the entire exercise that:

“The scenario being painted beggars belief. Ordinarily, one would expect armed uniform security agents to take orders from their superior officers. The ring of truth will definitely be missing in a scenario whereby soldiers and mobile policemen complied with and took their marching orders from ordinary bloody civilians at every turn.”

I agree with learned Counsel for the Appellant, Dr. Ayeni that the finding is speculative and ought to have been based on the demeanour of the witnesses who testified. But the fact is, as argued by Mt. Idachaba for the 5th and 6th Respondents, that the Appellant’s petition as constituted right from its inception was self defeatist in many respects. The petition having been founded entirely on allegations of criminal offences, the appellant was bound to state clearly and plead with some degree of precision the ingredients of the alleged crime including the names of the alleged offenders. In his petition, the Petitioner did not mention the name of any soldier or policeman. The allegation all through was that “heavily armed PDP chieftains and PDP thugs who acted as agents of the 1st Respondent and assisted by heavily armed soldiers and mobile policemen disrupted voting by shooting sporadically thereby scaring away voters.” Appellant’s counsel had contended that the Nigerian police, the commissioner of Police and the Nigerian army, 5th – 7th Respondents neither filed any defence to the petition nor adduced any evidence at all at the hearing to challenge the evidence of the Appellant and his witnesses. The failure of the 5th – 7th Respondents to file a defence or adduce evidence is of no moment for the simple reason that the appellant failed to plead or adduce evidence on material facts of his case or the identity of the soldiers and police officers. In Buhari v. Obasanjo (supra) this court observed:

“The rationale for requiring a police officer or military officer who rioted at an election rather than maintains law and order to be made a party is because neither the first set of respondents nor the third respondent might be aware of such development or of the identity of the officers. How then can they fairly defend such conduct without having the identity of the officer from whom the facts could be ascertained joined to the petition?”

Even at that, the party evidence adduced by the appellant was so unreliable and contradictory that no reasonable tribunal could have accepted or acted on it. See Ofomaja v. Commissioner of Education & ors (1995) 8 NWLR (pt.411) 69. With respect to the individuals mentioned by name, learned Counsel for the appellant had argued that none of them was called by the Respondent to give evidence in denial of the allegations made against them and that consequently left the evidence of the appellant unchallenged. I will again reiterate the point I mentioned earlier that the trial Tribunal had found that the evidence led by the Appellant was contradictory and unsatisfactory. The burden of proof is on the Appellant, not the Respondents. It is the appellant who should have joined as Respondents the non-INEC officials who participated in the alleged criminal acts in order to give them the opportunity to be heard and to defend themselves as required by Section 36 of the 1999 Constitution; See Ojo v. Abogunrin (1989) 5 NWLR (pt. 120) 162 @172; Samamo v. Anka (2000) 1 NWLR (Pt. 640) 283 @ 292. In the alternative, the Appellant should have sought a subpoena for them to attend court and testify. By failing to do any of these, the Appellant failed to discharge the burden on him. In other words, the Appellant did not discharge the evidential burden to justify calling the named individuals to deny the allegations against them. As correctly stated by the trial Tribunal, the consideration of the Respondents’ case does not arise until and unless the petitioner has made out a case. The appellant had pleaded in paragraph 19 of his petition that he secured a majority of lawful votes totaling 5,669 while the 1st Respondent scored lawful votes totalling 5,404. Yet under cross-examination, he admitted that there were results of other units which he pleaded but which were not before the Tribunal. He testified that he was told to come back to INEC’s office to collect the results and that when he went back they told him they had not retrieved the results from PDP thugs. This, of course is hearsay evidence and inadmissible but it is a clear example of the kind of difficulty the Appellant had in proving his case as required by law. The appellant simply was unable to lead satisfactory evidence as to how he came by the score of 5,669 for himself and 5,404 for the 1st Respondent. This case is clearly distinguishable from the case of Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342, where the kemel of the 1st respondent’s case was simply that election was not conducted in six Local Government Areas of Ondo State and that he ought to be declared as the duly elected Governor of Ondo State because he scored the highest number of valid votes cast in the other parts of the State where elections were conducted. The 1st respondent was able to lead satisfactory evidence that elections were not conducted in the areas complained about. The evidential burden then shifted to the Appellant to prove that elections were held. In Agagu’s case, this court observed:

“The appellant, it seems to me, who asserts substantially that election was conducted has the evidential burden of proving that the election held. He did not. The 1st Respondent produced Forms EC8B, EC8C and EC8D which are respective results of wards, local governments and state levels. There was no Forms EC8A, which are the polling station results, tendered in evidence. Hence there were no basis for consideration of Forms EC8B, EC8C and EC8D. To meet the Respondent’s case, it behooved the Appellant to tender the results from the polling stations or booths. It is settled that the polling booth results as set down in Form EC8A, is the primary evidence of the votes cast in an election. It is the foundation or base on which the pyramid of an election process is built. See Awuse v. Odili (2005) 16 NWLR (Pt. 951) 416 @ 488; Sabiya v. Tukur (1983) 11 SC 109; and Nwobodo v. Onoh (1984) 1 SCNLR 1 or (1984) SC 1…The petitioner who averred that election was not held, cannot be required to prove the holding of the election by producing its results.”

In this case before us, the appellant tendered Form EC8A which he claimed was forged or fabricated. The burden was consequently on him to prove the forgery. Having failed to do so, the evidential burden cannot shift to the Respondents. See Buhari v. Obasanjo (2005) 2 NWLR (Pt.910) 241 @ 416 where Abdullahi P.C.A. observed:

“In paragraph 19 of the petition the petitioner made several allegations of criminal nature, which required to be proved beyond reasonable doubt…it was alleged for example in that paragraph “electoral malpractices such as entry of fictitious figures into result sheets at the different stages of the election.” …The petitioner to succeed in this wise is required to present two sets of result, one that is correct and the other that is false.”

This underscores the very heavy burden on the Appellant to prove the criminal allegations in his petition as presented. Apart from the viva voce evidence of the appellant and his witnesses who were mostly his party agents and who gave discordant evidence, not worthy of credit, no disinterested person was called to testify in support of the allegations. The nature of burden of proof being what it is, the evidential burden cannot shift to the Respondents without the appellant proving his case. In the final result, I hold that this appeal lacks merit. It is accordingly dismissed. I make no order as to cost.

NWALI SYLVESTER NGWUTA, J.C.A:

The point at issue in the preliminary objection raised by the 1st Respondents is the exclusion vel non of the date of the event i.e. the date of declaration of the result of an election in the computation of the time within which an election petition shall be presented under the Electoral Act 2006. Section 141 of the Act provides that: “S.141 And days from the date the result of the election is declared.”

A review of our Electoral Legislations from 1958 to 2006 shows that the limitation clauses employed the phrase “after the date” followed by either the date of the election or the date of declaration of the result of the election. See Regulation 123 of the Election (House of Representative) Regulation 1958 where it was stipulated that “The election Petition shall be presented within one month after the date on which the election is held.” Or the phrase “from the date” followed by either the date of the election or the date of declaration of the result of the election. See S.108 (4) of the Electoral Decree No. 73 of 1977 which provides that election petition to question an election or return shall be presented not later than 14 days from the date of the election. See also Electoral Act 2001 which stipulates 30 days from the date the result of the election was declared.

The operative phrases in the various limitation provisions in the Electoral Laws are: “from the date…” and “after the date….” The expressions “after the date” and “from the date” cannot be used interchangeably as each means a different thing in terms of time and place. The word “after” means, inter alia, “Coming later in time than something or following someone or something in position or behind.”

On the other hand the word “from” means “a starting point in place or time.” See Chambers 21st century Dictionary Revised edition pages 22 and 534.
“After” means, inter alia. “Later than something, following something in time.” Whereas the word “from” is used to show where something starts. See Oxford Advanced Learner’s Dictionary, International Student’s Edition pages 26 and 599.

The phrases “after the date” and from the date” did not acquire or assume some mystical meaning or connotation for the mere fact that they are used in Electoral Legislations.

The date the election result is declared, or the date the election is held (in the earlier legislation) is the date on which the cause of action arose. It is on that date that the petitioner has cause to petition and someone against whom to petition, and in my view time begins to run from that date. See Alataho v. Asin (1999)5 NWLR (Pt.601)32.

It must be borne in mind that that the provisions of electoral Acts, including Electoral Act 2006 are inviolate and strict and because of essentiality of time do not appear to tolerate any attempt to water down its tenor. See Balogun v. Odumosu (1999) 2 NELR (Pt.592) 590 at 596.

The golden rule of interpretation of statute is that the words must prima facie be given their ordinary meaning; plain words such as “after” and “from” used in the Electoral Act 2006 should be given their literal meaning. See Amokeodo v. IGP & Ors. (2001) FWLR 801. See also Niger Progress Ltd. v. North East Line Corporation (1989)3 NWLR (Pt.107)08. In applying a certain amount of common sense in the construction the object of an Act must be considered, especially in the construction of the general tenor of the Electoral Act in which time is of essence. See Nigerian-Arab Bank Ltd. v. Limex Ltd. (1999) 6 NWLR (Pt. 608) 648 CA.

If the legislature intended a resort to the Interpretation Act in the construction of the provisions of the Electoral Act 2006 the intention would have been expressly stated or implied from the Act itself. See Section 99 (4) of Decree No. 36 of 1998 which states. “99 (4) Subject to the express provisions of the Decree the Interpretation Act shall apply to the interpretation of the provisions of the Decree.” The absence of similar provision in the Electoral Act 2006 means that the Act did not authorize a resort to the Interpretation Act in the construction of its provisions.

  1. 134 of the Electoral Act 2010 which is in pari materia with S.141 of the Electoral Act 2006 provides:

“134 (1)

(1)     An election petition shall be filed within 21 days after the date of the declaration of the result of the election.

(2) An election Tribunal shall deliver its Judgments in writing within 180 days from the date of the filing of the Petition.

(3)     An appeal from the decision of an election Tribunal or Court shall be heard and disposed of with 90 days from the date of the delivery of Judgment of the Tribunal” (Underlining mine).

It is clear from subsection (1) (1) above that the Petitioner has 30 clear days running from the day following the declaration of the result of the election to present his Petition. This is why the ward “after” was inserted before the date of the event, and not the word “from”.

In subsections 2 and 3 of the section the word “from” is inserted before the event. It means that the Judgment in subsection 2 and the hearing and disposal in sub-section 3 shall be done within 180 days and 190 days from the date of filing the Petition and the date of delivery of Judgment respectively, and time would run from the date of the event. This is the difference between the provision in S.134 (1) (1) and subsections 2 and 3 thereof and the distinction arises from the use of the word “after” in subsection 1 (1) and the word “from” in subsections (2) and (3) after the event.

In my humble view, the Electoral Act 2006, S.141 thereof, is complete in it and permits no aid internal or external, local or foreign, extinct or extant in its construction.

It is for the above reasons, which I believe were not adequately canvassed and addressed in the Judgments in which the date of declaration of the result of the election is excluded in the computation of the period for the presentation of election petition that I regret to say I am unable to agree with the decision of my learned brother Iyizoba JCA on the preliminary objection. In my humble view, the election as presented is time-barred under S.141 of the Electoral Act 2000 and the trial tribunal lacked jurisdiction to entertain it and afortiori the Court has no jurisdiction to determine the appeal. I uphold the preliminary objection, strike out the Appeal as well as the petition in the trial Tribunal. I order that each party hears its own costs.

MOORE A. A. ADUMEIN, J.C.A:

I had the privilege of reading the draft of the judgment just delivered by my learned brother -IYIZOBA, JCA.

On the preliminary issue relating to the competence of the election petition, which was allegedly filed out of time, Section 141 of the Electoral Act, 2006 provides thus:

“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”

The contention in this matter by the learned counsel for the respondents is that the word “from” as used in section 141 of the Electoral Act, 2006 should be given its ordinary grammatical meaning and if this is done, the date of computing the period of 30 days allowed a petitioner to file an election petition under the Act includes the day of declaration of the result of the disputed election. It was further contended that in interpreting Section 141 of the Electoral Act, 2006 resort cannot and should not be had to the provisions of the Interpretation Act.

I find myself unable to subscribe to the argument of the learned counsel for the respondents. From the provisions of section 141 of the Electoral Act, 2006 it is crystal clear that the intention of the legislature is to give “thirty (30) days” to a petitioner to present an election petition after the result of the election has been declared. A situation may occur where, for example, the result of an election is declared at about 11.55 pm on a particular date. And if the computation of time includes that very date and the thirtieth day lapses on a foreseen or an unforeseen public holiday, and such public holiday is excluded, the legislature would have given 30 (thirty) days to a petitioner and would have, covertly or overtly, subtracted some days from the said 30 days. With due respect, this will be an absolute absurdity. Obviously, this cannot be the intention of the drafters of section 141 of the Electoral Act, 2006.

The drafters of section 141 of the Electoral Act, 2006 cannot give a petitioner 30 (thirty) days to file an election petition with one hand and immediately take away some days with the other hand. The legislature cannot be the author of such confusion.

In enacting section 141 of the Electoral Act, 2006 the legislature should be taken to be aware of the ordinary dictionary meaning of the word “from” and to avoid the confusion or absurdity that would be created by giving the word “from” its dictionary meaning, the legislature provided in paragraph 50 of the First Schedule to the Electoral Act, 2006 as follows:

“Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”

And Order 23 rule 1 sub-rules (a) and (d) of the Federal High Court (Civil Procedure) Rules provide thus:

“1.     Where by any enactment or any order or rule of court, any special order, or the course of the court, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply –

(a)     The limited time does not include the day of the date of or happening of the event, but commences at the beginning of the day next following that day…

(d)     When the time expires on a public holiday, Saturday or Sunday, the Act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being a public holiday…

These provisions accord with the statutory provisions in section 15 sub- sections (2) (a) and (3) of the Interpretation Act which are as follows:

“15. (2) A reference in an enactment to a period of days shall be construed –

(a)     Where the period is reckoned from a particular event, as excluding the day on which the event occurs;…

(3)     Where by an enactment any act is authorised or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.”(Underlining mine for emphasis).

The declaration of the legislature in section 15 (2) (a) of the Interpretation Act is very clear and unambiguous. It is quite clear, therefore, that the legislature has given legislative interpretation to the word “from” when used in a statute in the computation of time and the controversy here is absolutely unnecessary.
As can be seen from the preamble to the Interpretation Act – “An Act to provide for the construction and interpretation of Acts of the National Assembly and certain other instruments: and for purposes connected therewith” – the Interpretation Act is a legislation of national applicability, save where there is a contrary intention in the Interpretation Act itself or the particular “enactment in question”. See section 1 of the Interpretation Act. In the instant case, no contrary intention has been expressed in the Electoral Act, 2006.
The Interpretation Act is a special legislation with ‘prophetic’ provisions to assist in the construction of statutes, including words and phrases used in such statutes. The Interpretation Act is a good guide to discovering the intention of the legislature while construing or interpreting the provisions of a statute, such as the Electoral Act, 2006 and in my opinion, it should not be lightly ignored.
I hold the view that in absence of any specific provision in the Electoral Act, 2006 disallowing the application of the Interpretation Act, the provisions of the Interpretation Act are applicable.

In the computation of time to file an election petition, under section 141 of the Electoral Act 2006, time begins to run the day immediately following the date of declaration of result of the election. If the last day, that is the thirtieth day falls on a Sunday or any other public holiday, the petition should be taken as validly filed, if filed the day immediately following such Sunday or public holiday. See section 15 sub-sections (2) (a) and (3) of the Interpretation Act and Order 23 rule 1 sub rules (a) and (d) of the Federal High Court (Civil Procedure) Rules. See also the Supreme Court case of YUSUFU V. OBASANJO (2003) 16 NWLR (pt.847) 554 at 608 – 609, per TOBI, JSC where it was held as follows:

 

“The result of the election was declared on 22nd April, 2003. The election petition was filed on 2nd May, 2003 and the motion for amendment of petition was filed on 21st May, 2003. (See pages 1 to 5 of the record). Reducing that to arithmetical detail, since the result of the election was declared on 22nd April, and the motion for amendment was filed on 21st May, 2003, the motion for amendment was presented within thirty days from the date of declaration of the election. This interpretation is in conformity with the provision of Order XII rule 1 of the Federal High Court (Civil Procedure) Rules”.

It should be noted that in YUSUFU v. OBASANJO (supra), the Supreme Court interpreted the provisions of section 132 of the Electoral Act, 2002 and paragraph 50 of the 1st Schedule thereto which are in pari materia with section 141 of the Electoral Act, 2006 and paragraph 50 of the 1st Schedule to it, respectively. And Order XII rule 1 of the Federal High Court (Civil Procedure) Rules, 1976 interpreted therein is identical with Order 23 rule 1 of the Federal High Court (Civil Procedure) Rules, 2000.

The petition filed on the 14th day of May, 2007 in respect of an election which result was declared on the 14th day of April, 2007 was filed within 30 days in accordance with section 141 of the Electoral Act, 2006.

For these reasons and the more detailed reasons in the lead judgment of IYIZOBA, JCA, I hold that the preliminary objection lacks merit and it is hereby overruled.

I also agree with my learned brother that the appeal lacks merit and it ought to be dismissed.

I too will dismiss the appeal and it is hereby dismissed without costs.

Law Nigeria Admin
Law Nigeria Admin

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