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IVIAN NDIGWE ANAZODO
ESTHER JOHN AUDU & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 1ST DAY OF MARCH, 1999
(1999) 4 NWLR (PT.600)530
BEFORE THEIR LORDSHIPS
DAHIRU MUSDAPHER, JSC
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JSC
ZAINAB ADAMU BULKACHUWA, JSC
VIVIAN NDIGWE ANAZODO – Appellant(s)
Prince Orji Nwafor-Orizu, (with him, A. A. Elekwa and K. Okute) – For Appellant
ELECTION PETITIONS – SUBSTANTIAL NON-COMPLIANCE:- Allegation of corrupt practices, electoral irregularities, electoral offences, and non compliance with the provisions of – Proof of – Onus of proof – On whom lies
ELECTION PETITIONS – VALIDITY OF THE NOMINATION OF A CANDIDATE:- Allegation that a candidate was not validly nominated as required by law at the time of the election to contest the election – Local government elections – How treated
CRIMINAL LAW AND PROCEDURE – MOTIVE: Whether motive to commit an offence without any evidence of any act either directly connecting a person can ground proof of such offence.
CHILDREN AND WOMEN LAW: Women in Politics – Local Government Elections – Challenge of Election Renounced – Relevant considerations
PRACTICE AND PROCEDURE – EVIDENCE – ALLEGATIONS OF CRIME: How allegations of crime in a civil proceeding must be proved
MUSDAPHER, J.C.A. (Delivering the Leading Judgment):
Pursuant to the provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree, No. 36 of 1998. the Independent National Electoral Commission (hereinafter referred to as INEC) conducted elections into the Local Governments and Area Councils throughout the Federation. The elections were conducted on the 5th day of December, 1998. In the Abuja Municipal Area Council the result of the election as announced by the 4th respondent on the 6th of December, 1998 showed the votes scored by each of the candidates for the chairmanship of the council as follows:-
Esther John Audu of PDP was returned elected as the Chairman of the Abuja Municipal Area Council. Vivian Ndigwe Anazodo being dissatisfied with the declared result and the return of Esther John Audu filed an election petition before the Abuja Capital Territory Local Government Election Tribunal which is established by virtue of Section 81 of the Decree aforesaid. In her petition Vivian Ndigwe Anazodo claimed against the successful candidate, Esther John Audu, INEC, the Electoral Officer and the Returning Officer all of Abuja Municipal Area Council the following reliefs:-
“1. That the petitioner be declared as duly or validly elected or returned having polled the majority of lawful votes cast at the election and with the required spread.
The petitioner, Vivian Ndigwe Anazodo, relied on the following grounds (shorn of all their particulars which may be referred to if and when necessary).
Numerous allegations of undue return or undue elections were pleaded. But the sum total of the grounds appear to me to be:
The first respondent filed a reply to the petition, while the 2nd, 3rd and 4th respondents filed a joint reply. Thus the issues were joined and matter proceeded to trial before the tribunal. The petitioner testified and called seven other witnesses.
The 1st respondent testified in defence of the allegations against her and called no other witness. The 2nd to 4th respondents did not call any evidence. After the written address of counsel, the tribunal dismissed the petition.
The tribunal specifically held that the 1st respondent was duly presented and nominated by her party the PDP to contest the election. The earlier presentation of Alfred Ozoemena was legally substituted by the PDP who had the sole authority to determine the candidate to present for the election. The tribunal was satisfied that the 1st respondent was properly and regularly screened and cleared by INEC to contest the election.
On the issue of corrupt practices, election irregularities, electoral offences and non-compliance, the tribunal found that the petitioner had failed to prove the allegations.
On the third issue, whether the 1st respondent was not elected by a majority of valid votes, the tribunal similarly found that no evidence was led in proof of these allegations. As mentioned above, the tribunal dismissed the petition.
The petitioner being unhappy with the judgment of the tribunal appealed to this court under Section 86 of the aforesaid Decree. Vivian Ndigwe Anazodo (hereinafter called the appellant) filed the notice of appeal against the 1st respondent (hereinafter referred to as the 1st respondent). In accordance with the Practice Directives issued by the President, Court of Appeal, brief of argument were filed and duly exchanged. At the hearing of the appeal oral submissions were made by counsel in the elaboration of the arguments contained in their written briefs.
Before the examination of the issues submitted to this court for determination it shall be necessary to sketch out although briefly, the facts.
The appellant was a candidate along with the 1st respondent and others for the chairmanship of the Abuja Municipal Area Council. The election was held on the 5/12/1998. The appellant was sponsored by the APP. It was the case of the appellant that initially one Alfred Ozoemena was presented by the PDP as its candidate. He was screened and cleared to contest the election, but after some communications between PDP and INEC the 1st respondent was eventually presented and screened and cleared. The 1st respondent after the poll and collation of all the results from the polling stations and all the wards was returned as duly elected by a majority of votes cast at the election. It was claimed by the appellant that the 1st respondent was not qualified to contest the election under the provisions of the Decree No. 36 of 1998. It was also alleged by the appellant that the election was avoided by corrupt practices, electoral offences, irregularities and substantial non-compliance with the provisions of the Decree. It was specifically alleged that the 1st respondent was engaged in the distribution of sachets of salt bearing her picture and words “vote for Esther John Audu, PDP candidate for the Abuja Municipal Council” etc. Sachets of such salt were recovered by the Police from one Charles Ogedi who was a candidate for councillorship seat in one of the wards and he was a member of the PDP. Some other PDP members were convicted of various electoral offences either before or on the date of election. There was also a claim by the appellant that the election was characterised by malpractices, irregularities and substantial non-compliance with the provisions of the Decree.
Out of the nine grounds of appeal filed with the notice of appeal four issues are submitted for the determination of the appeal. The respondents also filed similar issues.
The issues as formulated by the appellant read:-
Now, I shall deal with the above four issues.
This relates to the legal effect of screening and clearance of the 1st respondent by the 2nd respondent. It is submitted that the case of Onuoha v. Okafor (1983) 2 SCNLR 244 does not apply to the facts of this case. In the instant case, the PDP has nominated two candidates for the same office which is against the Decree. This was not therefore an intra party affair which is clearly within the domestic domain of the PDP. Two candidates were presented. The 1st candidate was screened and cleared and 1st respondent was later presented as a candidate. It is argued that her subsequent screening and clearance was not in accordance with the Decree and the guidelines. Learned counsel referred to the case of Kurfi v. Mohammed (1993) 2 NWLR (Pt.277) 602.
It is further argued, that it was not shown that Alfred Ozoemena, withdrew or died, nor was it shown that !NEC had rejected his nomination. It is submitted further that screening and clearance must be conducted in accordance with the provisions of the Decree. Learned counsel referred to paragraph 7(2) of Schedule 4 to the Decree.
It was further submitted that evidence was adduced that Alfred Ozoemena was presented by the PDP, he was screened and cleared by INEC to contest the election. He did not withdraw and INEC had not rejected him. PDP had lost the authority to substitute him with the 1st respondent. It is therefore argued, that the 1st respondent was a stranger to the election in accordance with the provisions of the Decree. She ought to have been regarded as unqualified to contest the election. The learned counsel referred to the case of Amonahini v. Onemayan & Others (1991) 1 LREQN 64 at 69. Where it was held that if a candidate “is not validly nominated as required by law … he cannot be said to have been qualified to be e elected …. ” See also Udonu v. Ugochukwu 3 ENLR 1.
It is further submitted that sections 10, 11 and 51 of the Decree are not exhaustive of the qualification or disqualification of a candidate which may be questioned. It is again submitted that though the qualification of a contest of an election is within the domain of the electoral body and the Election Tribunal may not enquire into them, those decisions were under a different law, the present law Decree No. 36 of 1998 is different. It is finally argued that INEC had no power under the Decree to screen and clear the 1st respondent after screening and clearing Alfred Ozoemena.
It is argued for the 1st respondent on the other hand that she was properly sponsored by the PDP and was cleared and was allowed to contest the election by INEC. Learned counsel referred to a number of exhibits to show that Alfred Ozoemena was wrongly presented to INEC in the first place. It was after the complaint of the 1st respondent as the result of the primary elections and after due deliberations by an appeal committee, that PDP wrote to INEC to withdraw the first presentation and sent in the name of the 1st respondent in accordance with the provisions of the Decree. When the PDP wrote to INEC about the candidature of Alfred Owemena INEC did not finally screen and clear his name. The word “OK” was cancelled and the word “pending” was written to show that the matter was not concluded. It is further submitted that a candidate is said to be screened and cleared only when the candidate’s name is sent back to the political party sponsoring him.
In the instant case, only the name of the 1st respondent was sent to the PDP after due clearance by INEC.
For the 2nd – 4th respondents, it is submitted that since the PDP sent in two names, INEC wrote to the PDP to clarify the situation. By Exhibit P. 30, the PDP clarified the situation and declared that it was the 1st respondent that it was presenting and sponsoring as its candidate for the election. The name of Alfred Owemena was never sent to the PDP as a cleared candidate. Therefore only the 1st respondent was qualified to contest the election as a candidate sponsored by the PDP. Learned counsel referred to Section 3(1) of the Political Parties (Registration and Activities) Decree No. 35 of 1998. He submitted that the nomination of candidates is reserved for political parties and cannot be questioned by anybody.
He referred to Onuoha’s case supra. It is lastly submitted that the appellant has no justiciable right to complain on the sponsorship of a candidate by an opposing political party.
Now, I think this issue is a narrow one and is blown out of proportion. From the exhibits tendered at the trial, there were two names sent to INEC by PDP at different times as the candidates for the chairmanship election of the Abuja Municipal Area Council. It appeared that the 1st respondent petitioned in accordance with the PDP Rules and Regulations in relation to the primary elections. Before the dispute was decided, the name of Alfred Ozoemena was sent to INEC as the winner of the primary election. When the dispute was resolved, it was decided by PDP that it was the 1st respondent who won the primary election.
Her name was eventually sent. See Exhibits P. 30, P. 34. The evidence of P.W.5 called by the appellant is very relevant.
“It is the duty of INEC to communicate to the party when … cleared.
In the case of Abuja Municipal Area Council the list of cleared candidates and councillors were sent to the PDP. The name of the cleared candidate we sent to PDP is Esther John Audu. Alfred Ozoemena was never sent to PDP as a cleared candidate.” …. We did not issue any letter of clearance to Alfred Ozoemena.”
This is the evidence of the witness called by the appellant. He was the only witness called to prove that the 1st respondent was not qualified to contest the election.
There is no doubt that if the 1st respondent was not properly nominated, screened and cleared a ground for petition exists under Section 84(1)(a) of the Decree. If a candidate is not validly nominated as required by law, he cannot be said to have been qualified to contest the election. Vide Amonahini case supra. Sponsorship of a candidate for an election who was banned from participation or who suffers from any disqualification is a proper and valid ground for questioning the election of such a person. See Nuhu Musa and Anor v. N.E.C. 75 Others (1989) 1 NEPLR 20.
The complaint of the appellant in these proceedings is that the 1st respondent was not qualified to contest simply on the grounds that PDP had earlier on presented Alfred Ozoemena to INEC for screening and clearance and that INEC had screened and cleared him. It is submitted that under the circumstances, and since Alfred did not withdraw neither INEC nor the PDP had the power under the Decree to substitute Alfred Ozoemena with the 1st respondent. But the evidence referred to above clearly indicated that Alfred Ozoemena was not completely cleared within the meaning of paragraph 2(2), (2)(a) to Schedule 4. It appears to me that clearance of a candidate becomes effective only after INEC has sent Form CF003 containing the list of the candidates it “adjudged qualified to contest” the election. In the instant case, only the name of the 1st respondent was sent to the PDP in Form CF003 wherein the 1st respondent was adjudged qualified to contest the election. As mentioned above, the name of Alfred Ozoemena was never sent to the PDP by INEC as a candidate “adjudged qualified”. I am of the view that the appellant’s complaint under issue No. I has no merit. I accordingly reject it.
This issue relates to whether the appellant was able to prove corrupt practices, and in particular whether corrupt practices can be connected to the 1st respondent.
It is submitted that there was sufficient proof of corrupt practices of treating, bribery and substitution. It is argued that Exhibit P. 13 and P. 38 (sachets of salt) bearing the words “vote PDP, Vote Esther Audu for Chairmanship Abuja Municipal Area Council” with her photograph and party logo is a complete proof under the law of evidence of treating. By section 94(1) it amounts to primary evidence.
Section 63 of the Decree defines and prohibits treating. There was evidence that one Charles Ogedi was arrested with the salt as described. He was a PDP councillorship candidate. It is submitted that Charles Ogedi was trying to corrupt and influence the electorate to vote for the 1st respondent. From the totality of all the facts, it is submitted that the appellant has connected the 1st respondent with the act of corrupt practices as defined. The learned counsel distinguished the case of Oyegun v. Igbinedion & Others (1992) 2 LRECN 1; (1992) 2 NWLR (Pt.226) 747 and submitted that the latter case dealt with issue of undue influence while the instant case is a clear case of treating.
It is further submitted that the onus was on the 1st respondent to call other evidence or Charles Ogedi to prove that she had no knowledge of the salt.
It is further posited that the tribunal found that Exhibit P1 -P12 are judgments of convictions of PDP supporters or party members of electoral offences but erroneously exonerated the 1st respondent from blame on the grounds that, there was no link established between the convicted persons and the 1st respondent. It is submitted that the election ought to be avoided even if no connection is established with the 1st respondent. It is submitted that Exhibits P1-P12 ought to be taken to have affected the fairness of the election vide Dashe v. Bawa (1989) 1 NEPLR 71.
For the 1st respondent, it is submitted, that the burden of proof is on the petitioner and where there is allegation of crime, it must be proved beyond reasonable doubt.
It is argued that the mere production of Exhibits PI3 and P38 (sachets of salt) was not enough, it must be shown that the 1st respondent was involved with the procurement and the distribution of the salt. It is submitted that the petitioner failed to lead any evidence on these vital factors. Suspicion however strong cannot take place of proof in a criminal case vide Nuhu v. Musa (supra). It is finally submitted that the finding of the lower tribunal was proper.
For the 2nd-4th respondents, it is submitted that none of Exhibits P1-P12 show that the 1st respondent was involved in the commission of any crime. It was not shown that she authorised or had knowledge of the crimes committed. Nor was it shown that the convicts were her agents. None of the convicts was called to give any evidence of any relationship with the 1st respondent.
Further to the above, it is submitted that no evidence was led to prove any irregularity, mutilation of results, nor any evidence led to prove that the signatures of her agents were forged on the result sheets. It is finally submitted that all the allegations made against INEC and its officers were criminal in nature and no credible evidence was led to prove the allegations as required by the provisions of the Evidence Act.
Now, I think it is settled law, that allegations of crime in a civil proceeding must be proved beyond reasonable doubt. The allegation of corrupt practices, the distribution of salt is clearly an allegation of criminal conduct. See Omoboriowo V. Ajasin (1984) 1 SCNLR 108; Nwobodo V. Onoh (1984) 1 SCNLR 1; Torti V. Ukpabi (1984) 1 SCNLR 214. The appellant argued that the mere fact that the sachets of salts found with Charles Ogedi was enough to find against the 1st respondent. The evidence relevant to the proof of the allegations of criminal conduct is partly reproduced here under:-
PW 3. Stephen Kunde:-
“One of the cases investigated by me is still pending in court. It is the case of Commissioner of Police v. Charles Ogedi. During the cause of my investigation, 18 voters cards were recovered from the suspect charged. I recovered voters cards and some packets of salt.”
PW 6. He was the exhibit keeper and merely produced Exhibit P.38. A.
PW 8. The appellant gave evidence. She did not say she saw the 1st respondent distributing salt. She merely said “My security man got one.”
Now there is no doubt that somebody has procured salt in sachets bearing the name, picture and logo of the 1st respondent with words amounting to treating. But the question remains, can any reasonable person hold the 1st respondent criminally responsible? In Nuhu v. Musa’s case supra. The court per Adio, J.C.A. (of blessed memory) as he then was, it was held that clear and unequivocal proof is required before a petitioner can establish a case of bribery. Suspicion however strong is not sufficient, and the mere fact that somebody else committed the crime and bribed other persons to vote for a particular candidate is not enough nor is it conclusive.
It has to be shown that either the candidate who is alleged to have bribed the voters or his acknowledged agent, or that he authorised what was done or subsequently ratified it. A candidate in an election cannot be held responsible for what other people did in the form of unsolicited aid of which he or his acknowledged agent were ignorant. The 1st respondent in these proceedings clearly denied the knowledge or source of the salt, its distribution or anything to do with it.
The learned counsel for the appellant tried ingeniously to draw a distinction from this case to the Oyegun’s case supra. In my view it is distinction without a difference. Section 63(1) reads:-
“A person who corruptly, b)’ himself or all)’ other person, either before, during or after an election, directly or indirectly gives or provides …”
In my view, it must be proved that the 1st respondent either by herself or by any other person, acknowledged by her directly of indirectly committed corrupt practice. There is no evidence whatsoever that it was the respondent who sourced the salt or authorized any acknowledged agent to do so. The 1st respondent must be shown to have authorised or subsequently ratified the bribery. See the unreported case of Unukan v. Jubelo & 7 Others, judgment of this court delivered in Suit No. CA/A/EP/26/98 on the 21/4/1998 (reported in (1998) 12 NWLR (Pt.579) 589) where Kalgo, J. followed Oyegun ‘s case and said it must be proved that the 1st respondent was aware of the inducement. The law is clear that all the ingredients of the crime alleged must be proved beyond reasonable doubt. See Abdullahi v. Gaya (1992)2 LRECN 67; Adeleye v. Oloruntobi (1992) 2 LRECN 134. Mere motive to commit an offence without any evidence of any act either directly connecting a person cannot ground proof of such offence. Evidence of mere suspicion however strong cannot amount to such circumstantial evidence as to prove the commission of the offence. See Mamman v. State (1976)6 SC 115. See also Ayua v. Adasu & Others (1992) 3 NWLR(Pt.231) 598. See also Kaugama v. N.E.C. & Anor (1993) 3 NWLR (Pt.284) 681.
In my view, the lower tribunal was correct in holding that the appellant had failed to prove corrupt practices against the 1st respondent as is required by law.
I accordingly resolve the 2nd issue against the appellant.
This relates to non-compliance with the provisions of the Decree. It is submitted that it was evident per PW7 that serial numbers of Ward Result Collation Forms EC8B for 6 out of 12 wards were suspect as each two of them bear the same serial numbers contrary to the evidence of PW5. It is submitted that the serial numbers in Form EC8B for Kabusa Exhibit P55 and Gwarimpa Wards Exhibit P56 are the same. It is submitted that such serial numbering of the ward sheets amounts to non-compliance with the provisions of the Decree and irregularities which are substantial enough to avoid the election vide Bawa’s case supra.
For the 1st respondent it was submitted that the provisions of Section 85(1) of the Decree reads:-
“An election shall not be invalidated by reason of non-compliance with the provisions of this Decree, if it appears to the Election Tribunal that the election was conducted substantially in accordance with the principle of this Decree and that the non-compliance did not affect substantially the result of the election.”
Learned counsel submitted that the appellant has failed to show any substantial non-compliance. It has not been suggested that the forms were fraudulently filed with fake results. There was no evidence led to show that the Presiding Officer committed any fraud or falsified the results.
For the 2nd-4th respondents, I have alluded to their submissions while dealing with the 2nd issue.
Now, the complaint here is concerned with the forms EC8B, it is claimed that some of the serial numbers are the same. PW7 categorically stated that Form EC8B were used to collate the results at the ward centre by using Form EC8A which are the results from the polling stations. In my view the duplication of the serial numbers at the ward level could not be said to be non-compliance which can affect or indeed did affect the result of the election. The court in an election petition exercises a special statutory jurisdiction. Accordingly, any objection in the petition must be based on a ground set out in the statute. See Yerokun v. Adeleke (1960) 5 FSC 126; (1960) SCNLR 267. Where an allegation of substantial non-compliance with electoral laws or regulations is made, the onus is on the petitioner to show that such allegation of non-compliance has substantially affected the result. See Awolowo v. Shagari (1979) 6-9 SC 51. Bassey v. Young (1963) 1 All NLR 31; (1963) 1 SCNLR 61. In Akinfosile v. Ijose (1960) 5 FSC 192; (1960) SCNLR 447, it was held that in an election petition where a petitioner alleges that there had been substantial non-compliance, he must adduce sufficient evidence to sustain the allegation. See also Ibrahim v. Shagari (1983) 2 SCNLR 176; Ojukwu v. Onwudiwe (1984) 1 SCNLR 247. See also Gbe v. Esewe & Others (1989) 2 NEPLR 1; (1988) 4 NWLR (Pt.89) 435.
The petitioner had pleaded a number of irregularities and malpractices but had failed woefully to establish them. The issue under discussion has been limited to the use of forms to fill in the results. The other complaints are not mentioned.
I have alluded to the fact that the form EC8B which was duplicated was only used to collate results at ward level from the Polling stations where Forms EC8A were used. In my view, even if the use of duplicated forms EC8B amounted to non-compliance, there was no proof or suggestion that the non-compliance has affected the result of the election. Accordingly issue No.3 as formulated in the brief must be resolved against the appellant.
This issue is related to the question of fair hearing. It is claimed for the appellant that the conduct of the tribunal in the trial of the appellant’s petition amounted to denial of fair hearing as enshrined under section 33 of the Constitution.
It is firstly argued that the refusal to join the presiding officers as respondents denied the appellants the opportunity to prove that the appellant had the majority of votes cast at the ejection. The refusal to join the presiding officers was contrary to the principles laid down in the case of Kudu v. Aliyu (1992) 2 LRECN 37; (1992) 3 NWLR (Pt.231) 615.
It is also submitted that the appellant did not have a fair hearing when the appellant was forced to close her case even though the statutory period had not elapsed. For the 1st respondent, it is argued that the decision to disallow the joinder of the presiding officers was made on 12/1/1999 and by Section 86(2) of the Decree, the period within which to appeal was limited to only seven days. By 2/2/1999 when the appellant filed the notice to amend she was out of time and accordingly ground 3 and the issue No.4 arising from it are incompetent. Vide Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) 179; (1997) 10 SCNJ P.15.
It is further submitted that joining the presiding officers at that stage would contravene section 82 of the Decree and paragraphs 15(2) Schedule 5 of the Decree. It is further submitted that from the records, the tribunal did not force the appellant to close her case.
The learned counsel for the 2nd-4th respondents made similar arguments.
Election petitions. by their nature ought to be dealt with despatch so that the electorate may know who their leaders are. See Onitiri v. Benson (1960) 5 FSC 150; ( 1960) SCNLR 314.
In the instant case, INEC, the Electoral officer and the returning officer have made parties. In my view, it was not necessary to join the presiding officers as parties. There were not and cannot be the necessary parties. The returning officers and the Chief Electoral Officer the boss of all the presiding officers are only the necessary parties to the election petition. I have carefully read the proceedings and it seems to me, the complaint of the appellant was that she did not know the names and addresses of the presiding officers to call them as witnesses. The first prayer contained in the motion was to order INEC to supply the names and addresses of the presiding officers. From the affidavit filed in support of the motion, the only reason why they were not joined initially was that their names were not known. But they could have been sued and served in their official names just like the 3rd and 4th respondents who were sued in their official capacities and served through their offices at INEC officers of the F.C.T. In any event, it was not the joinder of the presiding officers that was in issue, it was the claim by the appellant for INEC to produce them. It is not the function of a party to any dispute to produce witnesses for an opponent. The appellant could have subpoenaed the presiding officers through the INEC Abuja office. They failed to do so. The tribunal has no business for directing INEC to produce witnesses for the party. If there was anything wrong it was the action or inaction of the appellant that was blame worthy. I entirely agree with the ruling of the tribunal that it was too late in the day to allow the joinder as it would obviously amount to an amendments contrary to S. 82. Schedule 5 Paragraph 15(2) of the Decree.
If as the appellant’s counsel argued, the joinder would not entail any amendment of the proceedings then, it was not necessary to join them, since the electoral officer was already a party. The onus is always on the petitioner. There was nothing preventing the petitioner from calling the presiding officers in their official names to come and testify on his behalf just in the same way the appellant called other INEC officials.
On the issue of closing the appellant’s case by the tribunal, I am of the view that the appellant voluntarily closed her case. The learned counsel for the appellant said on the 22/1/1999 at page 104 of the records “The Presiding Officers are nowhere to testify from today to 15/2/1999. We are ready to follow the tribunal to another venue.” Again on the 23/1/1999 at the end of the evidence of the 8 P.W. the learned counsel said:-
”That is all for this witness. We are closing our case because INEC has refused to produce the 12 Returning Officers who are not
available in court. We hereby close our case.”
It cannot be a true statement that the tribunal forced the appellant to close her case. I also find and resolve the fourth issue against the appellant. In the result this appeal fails and is dismissed by me. I award the 1st respondent N3,500 and the 2nd – 4th respondents N3,500 costs against the appellant inclusive of out-of-pocket expenses.
I have the opportunity of reading in draft the lead judgment just read by my learned brother, Musdapher. J.C.A., I agree entirely with his reasoning and conclusions.
It is a fact which cannot be altered that the issue of primaries, selection and nomination of candidates to contest an election at any given time is the exclusive preserve of the political parties. It is a “no go area” for the Election Tribunals or even the Court of Appeal. Whatever happened or between the P.D.P. and INEC cannot be questioned by the Election Tribunal unless and until anyone of whom flagrantly violated the guidelines of the party or the INEC. It appears that no credible evidence was adduced by the petitioner to show that P.D.P. has breached their internal guidelines nor does it show that INEC refused to abide by its G guidelines. I am satisfied after due consideration of the record and the submissions of all the counsel in this appeal that the Election Tribunal and indeed this court have no power to interfere with the clear decisions of both political party (P.D.P.) and INEC. I agree therefore that the name of Alfred Ozoemena was never duly sent to P.D.P. by INEC as a candidate “adjudged qualified” on Form CF003. Issue No. 1 is therefore refused.
On the 2nd issue relating to whether the appellant was able to prove corrupt practice vis-a-vis the 1st respondent, I hold that it is Herculean task for the appellant to so prove. The appellants position here is akin to the prosecution in criminal cases. The appellant must prove beyond reasonable doubt that the 1st respondent personally committed the alleged corrupt practices. If personal committal is not forth-coming the appellant can still succeed if he can prove that the 1st respondent aided, abetted, counselled or procured the commission of the alleged act of corrupt practices! The issue of sachets of salt cannot by any stretch of imagination linked with the 1st respondent. Simply there is no evidence to connect the act with the 1st respondent. It is a mere suspicion. Those arrested and convicted did not state in their voluntary statements that they were paid agents of the 1st respondent. Their criminal acts were never shown to be sponsored by the direct or indirect act of the respondent. It is up to the appellant to call credible witness or witnesses to show that the 1st respondent blessed and sanctioned the act of corrupt practices. See Opia v. Ibru & Or5. (1992) 3NWLR (Pt.231) p. 658/708 where my learned brother Ogebe, J.C.A. says:-
“It is now settled law that for a petitioner in an election petition to succeed in a petition founded on corrupt practices, he has to prove beyond reasonable doubt that the respondent personally committed the corrupt act or aided, abetted, counselled or procurred the commission of the alleged act of corrupt practice.”
Having said much I will also dismiss this appeal and abide by the consequential orders made in the lead judgment including that of costs. Appeal dismissed.
I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Musdapher, J.C.A. I agree with all the reasonings and the conclusions reached therein.
One of the grounds of appeal raised by the appellant was that the trial tribunal did not make findings in respect of proved cases of irregularities, malpractices, electoral offences and non compliance with the provisions of the Decree. A close perusal of the records of proceedings of the trial tribunal shows at pages 159-160 that the tribunal adequately considered the testimonies of P.W.1. P.W.2, P.W.3 and P.W4 and the documents tendered and held the view that the appellant did not adduce evidence to connect the 1st respondent with the alleged offences.
An allegation of corrupt practice in an election petition is a criminal offence and by the provisions of S. 138(1) & (2) of the Evidence Act any allegation of a crime either in a civil or criminal proceedings must be proved beyond reasonable doubt – Owoade v. Sekoni (1998) 9 NWLR (Pt.565) 261.
In the present case the petitioner/appellant made the allegation against the 1st respondent. It is therefore up to her to prove the allegations and to directly connect them with the 1st respondent. Since she has failed to establish them she was bound to fail – Opia v. Ibru (1992) 3 NWLR (Pt.231) 685.
For these and the more elaborate reasons in the lead judgment I find no merit in the appeal and also dismiss it. I abide by the order as to costs.