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COURT OF APPEAL, JOS DIVISION
TUESDAY, 31ST MARCH, 1992
(1992) 3 NWLR (Pt. 231)
BEFORE THEIR LORDSHIPS
MUHAMMED MUSTAPHA ADEBAYO AKANBI, J.C.A.
ALOMA MARIAM MUKHTAR, J. C.A.
YEKINI OLAYIWOLA ADIO, J. C. A.
OBINNAYA ANUNOBI OKEZIE, J.C.A.
NIKI TOBI. J.C.A.
PROF. IGNATIUS AYUA – PETITONER
ELECTION PETITION ‑ ELECTION PETITION CASES:‑ Nature of ‑ Distinction between it and other civil proceedings.
ELECTION PETITION ‑ ELECTION TRIBUNAL:‑ Jurisdiction of ‑ Whether competent to hear petition founded on allegation of crime ‑ Nature of proceedings therein
ELECTION MATTERS – AGENCY:‑ Agency relationship in election cases ‑ How created – How proved
ELECTION PETITION – CRIMINAL PROCEEDINGS:- Complaint of crime in election petition cases ‑ Standard of proof required to be proved
ELECTION PETITION ‑ ELECTION MALPRACTICE:‑ Onus of proof ‑ On whom lies ‑ Standard of proof required.
ELECTION PETITION:‑ Electoral offence by a supporter of a candidate in an election ‑ Whether offence attributable to the successful candidate ‑ Test for determining
COMMERCIAL LAW – AGENCY:‑ Agency relationship in election cases ‑ How created – How proved
PRACTICE AND PROCEDURE – ACTION:‑ Election petition ‑ Nature of
PRACTICE AND PROCEDURE – APPEAL:‑ Ascription of probative value to evidence ‑ Duty on trial court ‑ Attitude of appellate court thereto.
PRACTICE AND PROCEDURE – APPEAL:‑ Grounds of appeal ‑ Where particulars required ‑ How framed ‑ Whether need he couched separately
PRACTICE AND PROCEDURE – COURT:‑ Ascription of probative value to evidence ‑ Duty on trial court ‑ Attitude of appellate court thereto.
PRACTICE AND PROCEDURE – COURT:‑ Findings of fans of trial court ‑ Attitude of appellate court thereto ‑ When appellate court can interfere.
PRACTICE AND PROCEDURE – COURT – PLEADINGS:- Duty on court to decide on facts pleaded and evidence given.
PRACTICE AND PROCEDURE – EVIDENCE:‑ Ascription of probative value to evidence ‑ Duty on trial court ‑ Attitude of appellate court thereto.
PRACTICE AND PROCEDURE – EVIDENCE:‑ Election petition ‑ Allegation of crime therein ‑ Standard of proof required.
PRACTICE AND PROCEDURE – EVIDENCE:‑ Proof ‑ Election malpractice ‑ Onus of proof ‑ On whom lies ‑ Standard required.
PRACTICE AND PROCEDURE – JURISDICTION:‑ Election Tribunal ‑ Jurisdiction of ‑ Whether competent to hear petition founded on allegation of crime
INTERPRETATION OF STATUTE:- Section 28 of Act No. 271989 and section 84 of Decree 50, 1991 – Section 6(2)(3) and (5)1979 Constitution ‑ Effect.
AKANBI, J.C.A. (Delivering the Leading Judgment):
Consequent upon the promulgation of the State Government (Basic Constitutional and Transitional Provision Decree 1991 No.50) hereinafter referred to as Decree 50) elections were held on 14th December 1991 throughout the Federation to elect the Governors and members of the various Houses of Assembly. In Benue State, the two contestants for the exalted office of the Governor of the State were Rev. Fr. Moses Adasu who contested on the platform of the Social Democratic Party and Professor Ignatius Ayua who was the nominated candidate for the National Republic Convention.
When the result of the election was announced, Rev. Er. Adasu emerged the winner and was accordingly declared the Governor of Benue State by the National Electoral Commission the body charged with the responsibility for conducting elections throughout the country.
Being dissatisfied with the result so declared, the unsuccessful candidate, Professor Ignatius Ayua, carried his case further to the Benue State Governorship and Legislative Houses Election Tribunal which had been established pursuant to Section 88 of Decree 50 to hear and determine any petition relating to the validity of election.
The petition, a massive piece of document, ran into some thirty five pages. The complaints contained therein were many and legion. It spoke of diverse breaches of the provisions of the Transition to Civil Rule (Political Parties Registration and Activities) Act No.27 of 1989 (hereafter called the Act) and Decree 50. There were also specific allegations that the Rev. Fr. Adasu was not elected by a majority of lawful votes and that his election was invalid by reason of corrupt practices or offences against Decree 50.
More specifically the grounds for seeking to avoid the election were set out in paragraph 8 of the petition as follows:
(i) The 1st respondent was not qualified to be elected to the office of. Governor
(ii) The 1st respondent was disqualified from being elected to the office of Governor
(iii) The 1st respondent was disqualified to contest as a candidate for the Gubernatorial Election by the combined effect of his breaches of S.28(1), (2), (3) and (6) of the. Transition to Civil Rule (Political Parties Registration and Activities) Act No.27 of 1989 (Cap.442 of the Laws of the Federation of Nigeria 1990) and S.84(1) and (2) of the State Government (Basic Constitutional and Transitional Provisions) Decree No.50 of 1991.”
Thereafter, the facts relied upon, were copiously stated in the several pages of the petition. They will be referred to in this judgment if and when found necessary.
The respondent to the petition Rev. Fr. Adasu, on 24th January, 1992, also filed a reply to the petitioner. That also covered some 15 pages. He denied the material allegations in the petition and specifically averred further that he was duly declared elected as the Governor of Benue State, having scored 461,039 votes as against the 403,305 scored by the petitioner.
A joint reply of about sixteen pages, was also filed on behalf of the 2nd, 3rd and 4th respondents to the petition. These respondents were the Returning Officer, the State Resident Electoral Commissioner and the National Electoral Commission respectively. They also, like the 1st respondent to the petition, denied that there was any breach of the rules or laws governing the conduct of the election and specifically pleaded in paragraph forty three of their reply that the election was fair and peaceful, that it was conducted in an orderly manner and that there was substantial compliance with Decree 50 of 1991. They finally averred that the 1St respondent won the election by a majority of lawful votes.
At the hearing of the petition, the petitioner gave evidence as the fifteenth witness, having called fourteen others before him to testify in support of his case. Three witnesses, the Returning Officer Benedict Haruna Able, (DW1), Alex Okpe (DW2) and Aodonka Hundu (DW3) Research Officer and Administrative Secretary respectively, of the National Electoral Commission, testified on behalf of the 2nd to 4th respondents to the petition. Eight others (DW4 to DW12) testified for the 1st respondent. Two other witnesses James Angev (TW 1) and Aondonka Amande (TW2) gave evidence at the instance of the Tribunal.
After one Mrs. Margret Ikwanja, of the National Electoral Commission had with the consent of all counsel produced the original copies of Form EC8C in respect of seven Local Government Areas, and the written addresses of learned counsel for the parties taken, the Tribunal fixed its judgment for 13th February 1992.
In a considered judgment of some considerable length, the Tribunal reviewed the evidence of the witnesses, gave detailed consideration to same and eventually arrived at the following conclusions-
:“On the whole, based on what we have been saying and the credible evidence before us, we are of the view that the petitioner has failed to prove his case on the grounds on which he has led evidence before us. We have no alternative but to dismiss it.”
Dissatisfied with the decision of the Tribunal, Counsel for the Petitioner Chief Afe Babalola, S.A.N. has filed in this Court 23 grounds of appeal with very elaborate particulars in some of them. Arising from these lengthy grounds, 7 main issues have been identified in the brief of argument filed on behalf of the petitioner (hereinafter called Appellant).
On behalf of the 1st Respondent, D.G. Vembeh Esq. filed a brief of argument on 20th March 1992 in response to the appellant’s brief. With leave of the court, the learned Solicitor General of Benue State Mr. David Adulugba also filed a brief of argument on behalf of the 2nd to 4th Respondents.
In the first Respondent’s brief, seven issues were also identified for determination while 4 issues were raised in the brief of the 2nd to 4th Respondents. The first issue raised in the Appellant’s brief read thus:
“(1) At the close of pleadings, what were the triable issues set up by the Respondents against the petitioner’s complaints particularly on: ‑
(a) Religious campaign in Newspapers;
(b) Political broadcast on the Radio;
(c) The use of the Cross;
(d) Religious and tribal campaign rallies; and
(e) Distribution of leaflets.
The issue as framed appears to me to be rather inelegantly drafted but there is no doubt it is the same issue that has been more concisely framed as issue one in the 1st respondent’s brief. It reads:
“Whether the Tribunal properly resolved the complaints of the petitioner on 1st Respondent’s alleged tribal, sectoral and religious campaigns in various modes and manners alleged in through newspapers, leaflets, tapes, posters and use of collars.”
In dealing with this issue, learned Senior Advocate Chief Afe Babalola drew attention to the averments contained in paragraphs 9(i) ‑ (xxiv), and 9(xxv) to (xxvi) of the petition and stated that contrary to the stipulations in Section 28 of Act No.27 of 1989 and Section 84(1), (2) of Decree 50 of 1991, the 1st Respondent by himself, his agents and his party used the New Times, a Newspaper published by Dr. David lomem the National Publicity Secretary of the Social Democratic Party to campaign on religious grounds.
Again attention was drawn to the several averments in the petition wherein it was alleged that the 1st Respondent and/or his agents engaged in offensive and base political broadcasts, employed names of Christian leaders to campaign for votes, used the Christian symbol of the Cross to booster up his claim to sponsorship by the Christian Churches and Leaders. All these and more, it is said were explicitly and exquisitely pleaded in the various paragraphs of the appellant’s petition and yet the Respondent failed to deny them specifically or at all. In those circumstances, it was averred that the Tribunal ought to have deemed all the averments referred to as having been established.
In this wise, learned counsel referred to the cases of AKINTOLA V. SOLANO (1986) 2NWLR (Pt.24) 598; O.S.A.C.C. V. MORAKINYO & ORS. (1986)2 NWLR (Pt.24) 670 at 672; NIGERIA AIRWAYS LTD. V. ABE (1988)4 NWLR Pt.90) 524 at 531.
By ignoring the pleadings, it was again said, that the Tribunal abdicated its duty under the Decree and the applicable rules; and in consequence failed to identify the issues joined at the close of pleadings. First, let me say with the greatest respect to the learned Senior Advocate, that the contention that the averments in paragraph 9 of the petition were not controverted is not correct.
A dispassionate examination of the paragraphs 5,9, 11, 12, 13, 15, 18, 19 and 20 of the Reply filed on behalf of the 1st Respondent would reveal that those paragraphs were not mere general traverse. It seems clear from those paragraphs that the 1st Respondent has joined issues with the appellants on his pleadings. So the appellant had the primary duty of proving the allegations contained in paragraph 9 of his petition. I suppose it is in the bid to discharge this burden of proof that the Appellant summoned the host of witnesses who testified on his behalf and tendered various documents at the trial.
Indeed, PW1, PW2, PW4, PW7, PWI1, PW14 and PW15 not only gave evidence relating to the alleged use of offensive leaflets but also testified on the claim that Innocent Uvah the distributor of the obnoxious leaflets was an agent of the Social Democratic Party. There was also some evidence from PW14, about the alleged pasting of posters with the identifying mark of the Cross on the house of Terngu Ikpagher. But then, there was the contrary evidence of DW1O, DW1 1 and indeed that of DW3 the Administrative Secretary of the 4th Respondent who said that prior to the election there were no complaints received of any wrong doing or on the subject of the complaints on the basis of which the election is sought to be avoided.
Furthermore, Mr. Sebastin Saaonda Ikyegh Agbinda DW1 1, the Director General of the 1st Respondent campaign team testified inter alia that:-
“… I know a number of campaign agents in all the wards. One Innocent Uvah or Rees is not one of our campaign agents. I did not appoint any pastor or Rev. Fr. as agent, for whatsoever I never appointed any officers of CAN as campaign agent … I cannot remember appointing Abu King Shuluwa as campaign agent.”
The witness testified further ‑
“I know Professor lornem. It is not true that Professor Jornem is one of our agents. It is not true that we used his Newspaper called NEW TIMES to conduct our religious campaign. I know there is a Newspaper called New Times. It is not true that we use New Times to promote religious campaign …”
I have quoted at some length the evidence of DWI I because it formed the basis of appellant’s counsel’s submission on issue 2 which reads:
“Who under the New Party System established under the Transition to Civil Rule Programme (Political Parties Registration and Activities) Decree No.27 of 1989 otherwise known as Cap.442 is the agent of a candidate sponsored by a Political Party? This issue is important if the whole purport of this case and also Decree No.27 of 1989 is to be appreciated.”
Here again, I may observe that the issue raised above in the Appel1ant’ brief, is the same as issue 2 in 1st Respondent’s brief as well as Issue 4 in the brief filed on behalf of the 2nd ‑ 4th Respondents. For the sake of clarity, I state below issue 2 as couched in the brief of 1st Respondent.
“Whether on the evidence before the Tribunal the Petitioner had established agency relationship between the 1st Respondent and Innocent Uvah, Abu King Shuluwa and David lornem to warrant a verdict in his favour.”
Before dealing with this second issue, it is important to say that the evidence of all the witnesses which I have highlighted above, were duly considered by the Tribunal and ascribed probative value. The Tribunal found that the petitioner’s witnesses PW4, PW5, PW6, PW8, PW1O, PW11, PW12, PW13 and PW14 who testified on the vexed issued of campaigning in the Church and other allied matters were unreliable witnesses and so disbelieved them. It preferred the evidence of the Rcspon4ent’s witnesses. Of the evidence of the Appellant who testified as PW1 5, it had this to say ‑
“As for PW15, we have very high opinion about him. He appeared to us to be a gentleman. However, many of his assertions in his evidence, such as holding of elections in churches, that Uvah was an agent of 1st Respondent and S.D.P. and has been compensated by a higher appointment approved by 1st Respondent campaigning in the churches and using ethnic and religion (sic) matters against him by S.D.P. and 1st Respondent have not been supported by the evidence before us.”
The sum total of the above findings is that the Tribunal disbelieved the evidence of the appellant and his witnesses. It is the law that the ascription of probative value to the evidence of witnesses is pre‑eminently that of the trial court. And so a court of Appeal will not lightly interfere with the findings made by a trial court or Tribunal. Indeed it is not its business to substitute its own view of the facts for those of the judge or Tribunal who saw and heard the witnesses.
See Ebba v. Ogodo (1984) 1 SCNLR 372 at 378, paras. E & F; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370; Omoregbe v. Edo (1971)1 All NLR 282 at 289.
I may however add that such interference may be permissible when the findings of fact are perverse or are unsupportable by evidence or when it is shown that the court of trial has not properly utilised the opportunity it had of seeing and hearing the witnesses.
See also Kodilinye v. Mbanefo Odu (1935)2 WACA 336 at 336; Fabumiyi & Anor. v. Obaje & Anor. (1968) NMLR 242 at 247; Woluchem v. Chief Gudi & Ors. (1981) 5S.C. 291 at326.
I now revert to the question of agency raised under issues 2 and 3. As a prelude to his submission, Chief Afe Babalola drew attention to Section 2(1) of Decree 27 of 1989 (now Cap.442 of Law of the Federation 1990) which reads:“
2(1) No association other than apolitical party recognized and registered under the Decree, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election or sponsor any candidate at any election.”
The point, was then made that having regard to the meaning of the word “canvass” in the above quoted section, it was wrong for the Tribunal to hold that David lornem, the National Publicity Secretary of the Social Democratic Party, Abu King Shuluwa one time Sole Administrator of the party, both being accredited and undisputed officials of the party, were not agents of the party. It was learned counsel’s contention that by virtue of their position in the party, they were agents of the party and as such anything they did personally to solicit votes for the party, clothed them with the authority of an agent.
In the case of David lornem, it is said that there was evidence that he was the publisher of Exhibit TA 1 the New Times of 12/7/91 which carried the information on its front page that Rev. Fr. Athanasius Usuh and other members of the clergy endorsed or supported the 1st Respondent’s aspiration to be the Governor of the State and being, the publisher, he is liable as an agent of the party for the offensive publication.
So also, the 1St Respondent whose agent lornem is said to be. The argument went on that the party itself being the body permitted by law to put up candidate for the election and solicit for votes, was equally liable for the publication “as agent of the 1st Respondent”.
Chief Afe Babalola also said that David Jornem admitted seeing both Exhibit JH 1, and Exhibit OAI. The Voice Newspaper and the Catholic Star Newspaper respectively in which Rev. Fr. Usuh not only reacted strongly against the Publication in Exhibit TA1 ,but demanded that the offensive publication be retracted and yet he did nothing.
According to learned counsel, lornem has by his conduct adopted and ratified the contents of Exhibit TA I as the agent of the 1st Respondent and was therefore estopped from asserting the contrary. Reliance for this aspect of the submission was placed on the LAW QUARTERLY REVIEW 1939 Code 55 p.400 at pp.408‑413. First of all, let me say that no facts were raised in the pleading of the parties in this case on which the plea of estoppel by conduct (or by silence as has been urged) may be founded.
I am satisfied that the cases reviewed in the several passages of the Quarterly Review 1939 to which we have been referred, have no relevance to this case. For one thing, there was no pleading or evidence given that anyone “ was laboring with a mistake “which the 1st Respondent or lomem refrained from correcting and in consequence of which the person affected “prejudicially changed his position.” Again there has been no misrepresentation of any kind resulting from the failure of lornem to retract the publication in Exhibit TA 1 or in consequence of which fraud had been perpetrated. So, all the argument on ‘estoppel by acquiescence’ or misrepresentation’, must come to naught.
I may add in passing that the fact that lornem did not retract the statement in Exhibit TA 1 did not create any estoppel. Indeed to issue a retraction would in effect be an admission that he authorized the publication in the first place.
The duty of the court is to decide cases on the facts pleaded and the evidence given and to apply the relevant or applicable law to acts admitted, proven or found. It is also trite to say the law is not applied in vacuo. It has to be related as I said before to the facts of the case.
Accordingly, I find myself unable to agree with the submission of Chief Afe Babalola SAN that ‘estoppel by conduct’ can be inferred from the facts of this case. I am not unmindful of learned counsel’s further submission that lomem as a publisher is liable for any publication in Exhibit TA I and that being so, he should be held to be the agent of 1st Respondent. For this proposition reliance was placed on Gatley on Libel 9370 Article 874.
Learned counsel for the 1st Respondent Mr. Orkumah has submitted that there was no proof that lornem was the publisher of Exhibit TA 1. He said that it is clear from Exhibit MGI ,that the paper published by Professor David lornem was Tiv New Times and not New Times simpliciter. Chief Afe Babalola has said that the same Tiv New Times has metamorphosed into New Times. I am not prepared to go into the semantics of the ownership or the difference between the Tiv New Times or New Times if any difference existed at all.
The submission that lornem was the publisher of Exhibit TA 1 was based on the passage from Gatley on Libel to which I had earlier referred. To my mind, the proposition in Gatley must be confined to cases of LIbel and not extended to question of agency in election petition cases which are special in nature and character; that is to say they are sui generis and not considered to be identical with other civil proceedings. See Obih v. Mbakwe (1984) 1 S.C. 325.
The stark issue in this case is whether lomem was an agent of the 1st Respondent and if he authorized the publication at all, and whether he did so as the agent of the 1st Respondent or with his special or general authorization or that of his party. It is in this context that I accept the submission of the learned Solicitor General, Mr., Adulugba, that in the absence of any direct evidence that Jornem was clothed with the general or special authority or an agent by the 1st Respondent or his party, it would be too much to presume that if he made the publication in Exhibit TA I at all (and there was no evidence that he did or authorized it) he did so as the agent of 1St Respondent and/or his party; notwithstanding the fact that he held the office of the National Publicity Secretary of his party.
I am tempted to agree again with the Solicitor General that the role assigned to the National Officers of the political parties would in all probability be as set out in their various constitutions. In any case, there was no evidence that the 1st Respondent had appointed Uvah or lornem as his agent. I have already shown that the Tribunal believed the evidence of DWI I Agbinda that Prof. lomem was not the agent of the party or the 1st Respondent. The evidence on record, did not establish that DW 11 who said it was his duty to appoint agents for the party or 1st Respondent had issued out any letter of authority either to Uvah or lornem to act as agent.
In the ordinary law of Agency, the paradigm is that in which the agent and the principal agree that one should act for the other. And the term “agency” is assigned to this basic relationship which involves the consent of both parties. See BOWSTEAD ON AGENCY p.1 at 3. It is therefore trite law that agency arises mainly from a contract or agreement between the parties express or implied.
See NIGER PROGRESS LTD. V. NORTH EASTLINE CORPORA TION (1989)3 NWLR (Pt. 107) 68; BAMGBOYE V. UNIVERSITY OF ILORIN (1991) 8 NWLR (Pt.207) I at 29; ROYAL EXCHANGE INSURANCE LTD. ORS. .. ASWANI TEXTILE INDUSTRIES LTD. (1991) 2 NWLR (Pt. 176) 639 at 667.
In the instant case, apart from there being no direct evidence of agency between the 1st Respondent and Uvah or Professor lomem, there are no facts from which any agency may be inferred.
In Halsbury’s Laws of England Vol.15, 4th Ed., para.698, p.375, the learned editors summarized the law as follows:
“698. Evidence of agency.
In order to prove agency it is not necessary to show that the person was actually appointed by the candidate or that he was paid. The crucial test is whether there has been employment or authorization of the agent by the candidate to do some election work or the adoption of his work when done. The candidate, however, is liable not only for the acts of the agents whom he has himself appointed or authorized, but also for the acts of agents employed by his election agent or by any other agent having authority to employ others. He may be liable even though his election agent refused to employ the agent.
In the absence of authorization or ratification the candidate must be proved either by himself or his acknowledged agents to have employed the agent to act on his behalf, or to have to some extent put himself in the agent’s hands, or to have made common measure with him for the purpose of promoting the candidate’s election.
The candidate must have entrusted the alleged agent with some material part of the business of the election. Mere non‑interference on the candidate’s part with persons who, feeling interested in the candidate’s success, may act in support of his canvass is not sufficient to saddle the candidate with any unlawful acts of theirs of which the candidate and his election agent are ignorant. Employment in the business of the election is a question of degree, but it has never yet been distinctly and precisely defined what degree of evidence is required to establish such a relationship between the candidate and the person guilty of corruption as should constitute agency.
No one yet has been able to go further than to say that, as to some cases, enough has been established but as to others, enough has not been established, to vacate the seat. All the circumstances of the case must be taken into consideration, and the evidence must be regarded cumulatively as establishing the agency.”
From the above, it is evident that mere canvassing for a candidate in whose success one is interested, is not sufficient to saddle the candidate with any unlawful act of the “canvassers” of which the candidate and his election agent are ignorant.
The long line of decided cases in our courts also support the view expressed above.
For example in Gabriel Adediran v. Ganiyu Ladapo & Ors. (1991) 1 L.R.E.C.N. 110 at 112 it was held that a candidate cannot be held responsible for what other people did in the form of “unsolicited aid” of which he or his election agent was ignorant.
See also NUHU MUSA & ANOR. V. NATIONAL ELECTORAL COMMISSION & 5 ORS. (1989) 1 N.E.P. L.R. 20 at 36. From the above therefore it is crystal clear that on the facts found, Appellant cannot be held responsible for any of the acts complained of. On issue 4, Appellant’s counsel has submitted that the reason given for the rejection of the tapes sought to be put in evidence by the petitioner was untenable. It is enough to say that the tape sought to be tendered in evidence was properly rejected.
The Appellant has not shown that the order for the production of the tapes for inspection was complied with. The contention that it could not be copied is neither here nor there. It would have been enough if learned counsel had produced the tapes in obedience to the order made, for inspection. The failure so to do, justified the decision of Tribunal to invoke the provisions of Order 32 Rule 14(2) of the High Court (Civil Procedure) Rules. I am of the view that the Tribunal was right in the decision it took.
Finally, it remains for me to say that, from the analysis I have so far made, this appeal must fail. There is no doubt that the Tribunal properly evaluated the evidence and came to the right conclusion on all the points canvassed before it.
I have deliberately delayed making any comment on the objection raised with regard to the competence of some of the grounds of appeal. lam satisfied that the grounds are generally competent for where no particulars have been separately set out, they have been embedded in the ground as filed. Particulars of grounds of appeal may be set out separately and distinctly or they may be in‑built. What is important is the need to frame the ground in such a way that the Respondent and the court may be able to appreciate the nature and purport of the complaint being made against the judgment being appealed against and so prevent an element of surprise.
I now proceed to deal with the cross appeal of the cross Appellant. The ground is a challenge to the assumption of jurisdiction by the Tribunal in this case. It is said that since the complaint in the petition relates to the commission of criminal offences i.e. breaches of Sections 28 of Act No.27 of 1989 and section 84 of Decree 50, the Tribunal ought not to have entertained the petition. I suppose, the contention is that the petition should have been struck out in limine.
It is said that the courts of competent jurisdiction are the Magistrate Court or the High Court. This is said to be so, because according to learned counsel Mr. Orkumah the complaint set out in paragraph 8(iii) and 8(v) of the Petition are criminal in nature. According to learned counsel, by virtue of Section 6(2)(3) and (5) of the Constitution of the Federal Republic of Nigeria, which is still in force, only a court of competent jurisdiction can deal with the type of complaints set out in those paragraphs.
In short, the contention is that the Tribunal has no power to try criminal cases. Nor can it entertain a petition which is founded on an allegation of crime. In support of the submission, the following cases were cited ‑ MAD UKOLU & ORS. V. NKEMDILIM (1962) 1 All NLR 587 at 595 (1962) SCNLR 341; DENLOYE V. MEDICAL & DENTAL PRACTITIONERS’ DISCIPLINARY COMMITTEE (1968) I All NLR 306; SOFEKUN V. AKINYEMI (1980) 5‑7 S.C. I at 25/26; (1981) 2 NCLR 135; GARBA V. THE UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt.18) 550.
Chief Afe Babalola SAN in his reply said that in matters of election petitions, it is well to appreciate its peculiar nature and be able to draw a distinction between what can be said to be a really criminal trial and a complaint against the election of a candidate who is in breach of certain provisions of the Electoral Decree or other relevant legislations. It has been submitted that there is nothing in Act No.27 of 1989 and Decree 50 of 1991 which makes it mandatory that there should be trial and conviction before the commission of a crime can be made the grounds for seeking to avoid an election.
Reference in this connection was made to Section 84(2) of Decree 50 which not only speaks of the disqualification of person who contravenes sub‑paragraphs I of the aforesaid Section but also prosecution of the offender “in the appropriate court or Tribunal.”
First of all, let me say that the issue raised by the ground under consideration appears to me to be rather hypothetical. I do not think that the cases cited by the cross‑appellant run against the grain of the decisions which say that when crime is made the foundation of a civil action, proof has to be beyond reasonable doubt.
In the case of Chief John Oyegun v. Lucky Nosa Igbinedion & Ors. Appeal No. CA/BJEP/49/92 delivered on 18th March, 1992 (1992) 2 NWLR (Pt. 226) 747 the allegation made against key figure in that case Chief Isekhure was criminal in nature.
The accusation was for a criminal offence created under Section 102(2) of Decree 50 of 1992 and punishable under Section 107 of the said Decree. Following the Supreme Court’s decision in NWOBODO V. ONOH (1984)1 SCNLR 1 at 17; (1984) 1 S.C. 1 at 13 & 39, this court held that all that was necessary was for the person alleging the commission of crime to prove it beyond reasonable doubt.
Section 91(1) (b) stipulates that an election may be questioned inter alia on the ground ‑
“That the election was invalid by reason of corrupt practice or offences against the Decree. (Italics supplied).
So, it appears to me that an election can be questioned .for offences against the Decree and an Election Tribunal will be acting well within its competence if it entertains such complaint. The important thing is to ensure that any allegation of crime is proved beyond reasonable doubt.
That said, I am done. The cross appeal must for the reasons I have given also fail.
In the result both the appeal (of the Appellant) and the cross appeal fail; and they are hereby dismissed. The judgment of the Benue State Election Tribunal is upheld. Accordingly, the Governor Rev. Fr. Moses Adasu, elected at the Election held on 14th December 1991 is hereby affirmed as the Governor of Benue State. I make no order as to costs.
I have had the advantage of reading in draft form the lead judgment just delivered by my learned brother Akanbi, J.C.A. I am in complete agreement with the reasoning and conclusion reached therein. I also dismiss the main and cross appeal as they lack merit and substance. The Rev. Fr. Moses Adasu is affirmed as the Governor of Benue State. I also abide by any other consequential order.
I have had the opportunity of reading, in draft the judgment just delivered by my learned brother Akanbi, J.C.A and I entirely agree with t. I abide by the orders made by him. I too make no order for costs.
Appeal and cross appeal dismissed.