➥ CASE SUMMARY OF:
Okezie Victor Ikpeazu v Alex Otti (SC. 18/2016, 25 February 2016)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Election petition;
Over voting.
➥ CASE FACT/HISTORY
This court heard and allowed this Appeal SC. 18/2016 on the 3’d February, 2016. 1 promised to proffer reasons for doing so today, 26th February, 2016, today. My reasons are set out below.
This appeal is against the judgment of the Court of Appeal sitting in Owerri, in APPEAL No: CA/OW/EPT/6/2015 delivered on 31st December, 2015, wherein the court allowed the appeal of the 1st and 2nd Respondents (hereinafter referred to as the [“Respondents’). The Governorship Election Tribunal which sat in Umuahia, Abia State had on 3rd November, 2015 dismissed the petition filed by the 1st and 2nd Respondents in which they challenged the declaration of the Appellant as the winner of the Governorship Election conducted in Abia State on 11th and 25th April, 2015.
In a nutshell, the Appellant herein contested in the Gubernatorial Elections of 11th and 25th April, 2015, as the candidate of the 3rd Respondent, the Peoples Democratic Party (PDP). The 1st Respondent also participated in the same elections as the candidate of the 2nd Respondent the All Progressives Grand Alliance (APGA). At the end of the polls and collation of results, the 4th Respondent declared the Appellant the winner and returned him the duly elected Governor of Abia State. The 1st and 2nd Respondents challenged the declaration of the Appellant herein as the winner of the said election at the Governorship Election Tribunal in Umuahia.
The Tribunal in its considered judgment, dismissed the petition on diverse grounds, including but not limited to the fact that none of the criminal allegations contained in the petition was proved; that the petitioners, who were challenging the result of the election based on alleged over-voting did not rely on any Voters’ Register of Form EC8A as mandatorily required under Section 49 of the Electoral Act, 2010 (as amended); that they merely relied on a Card Reader Report (Exhibit PWC 2), which in itself not only contradicts another Card Reader Report (Exhibit PWD) tendered by the same petitioners, but which also conflicts with the testimony of PW19; that all documents tendered by the petitioners were merely dumped on the Tribunal without more etc.
Dissatisfied, with the decision of the Tribunal, 1st and 2nd Respondents appealed to the Court below which reversed the decision of the Tribunal.
The Appellant was not satisfied and has appealed to this Court.
➥ ISSUE(S)
I. Whether the facts relied upon, that is the Appellant’s letter of 2nd January, 2016 and the fact that certification was done on 6th January, 2016 and the enrolled order issued on 6th January, 2016 are not fresh evidence on appeal which requires leave of this court before they can be relied upon? & whether the issue not being an appeal from a decision of the lower court is competent?
II. Whether the court below did not refer to the pleadings in the petition before resolving the issue on allegation of over-voting made by the petitioners?
III. Whether the court below went against the grain of the reliefs sought by the petitioners, turning itself to be Father Christmas, dishing out the reliefs not claimed?
IV. Whether the State Returning Officer has power to cancel election results?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT IS RELYING ON FRESH FACTS
‘On the first point, I agree with the Learned Senior Counsel for the Respondents that the facts the Appellant relied upon are fresh facts which the Respondents were unaware of and they had no opportunity to react or respond to. The fact that the Appellant could not obtain his copy of the Judgment until 6th January, 2016, does not mean that other parties did not get their own copies before that date. In the circumstance, such evidence has to be brought in vide the normal application to proffer or adduce further or fresh evidence on appeal. This is to enable the parties address and express their views and the court to rule on it. Appellant having not done this, this ground of appeal and the issue formulated thereon cannot be said to be competent, it must be dismissed and it is hereby dismissed.’
ONLY DECISIONS FROM THE LOWER COURT ARE TO BE APPEALED AGAINST
‘The operative word in the foregoing provision is “decision”. An Appeal is from decision of the lower court and not necessarily administrative actions of the Court Registry as shown here. My careful perusal of the particulars of the Ground of Appeal and the argument on the issue formulated therefrom are attacks against what the Registry of the lower court did after the judgment had been delivered. Therefore, the only decision the Appellant can appeal against is the decision of the lower court made by justices of that court and this has been rightly set out in other Grounds of Appeal of the Appellant. This Ground 2 is attacking the acts of certification, enrolment of order and availability of the judgment to the appellant before 6th January, 2016. I have not seen anything on record what the Justices who delivered the judgment being appeal against, did after delivery of the judgment. The Appellants letter of 2nd January, 2016 was addressed to the Registrar of the lower court and not to any of the Justices of the court below. In view of the foregoing this preliminary objection is considered necessary and sustainable. It is allowed.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
THE CRIMINAL ALLEGATIONS MADE WERE NOT PROVED BY THE RESPONDENTS
[‘Careful scrutiny of petition of the respondents generally, before the trial Tribunal is a catalogue of criminal allegations characterized by ballot box snatching to unprecedented violence, fabricated and fraudulent entries in the electoral forms, and over-voting. These are serious criminal allegations which must be established, but none was so established. I refer to pp 5561 – 5562 of the record, where the trial Tribunal, after considering Issues (1) and (2) raised by the petitioners before it focused on the issue relating to the criminal allegation and stated as follows:-
“We shall consider the issue of criminal allegations made by the petitioners committed during the election in the form of violence, hijacking of electoral materials, intimidations, threat to life, corrupt practices, forgery and falsification and fabrication of results, highlighted and particularized in para. 30(a) (d),(f),(g); 32(d), (e); 37(d), (e), (f); 3888(d), (e), (f); 39, 41 of the petition.”
Therefore, the trial Tribunal, after considering these criminal allegations considered the mandatory provisions of Section 139(1) (as amended) of the Evidence Act vis-a-vis proof of allegations in any criminal proceedings. It is at page 5562 of the record, the tribunal held that grave criminal allegations were made in the petition but were not proved beyond reasonable doubt; placing reliance on the decision of this court in OKECHUKWU v INEC (2014)17 NWLR (PT. 1436) 255 and NWOBODO v ONOM (1984) 1 SCN LT at p. 29: 1984 1 SC. (Reprint). That is the law. It has not changed. Where in an election petition, the petitioner makes an allegation of a crime against a Respondent and he makes the commission of the crime the basis of his petition, section 135(1) of the Evidence Act 2011 imposes strict burden on the said petitioner to prove the crime beyond reasonable doubt. If he fails to discharge the burden, his petition fails.’
THE COURT BELOW FAILED TO RESOLVE THIS ISSUE ON CRIMINAL ALLEGATIONS SUBMITTED TO IT
‘The jurisdiction of this court cannot be exercised in vacuum; it must be based on resolved issues before it. No binding decision of the lower court can arise without it being based on the resolution of all the issues raised before it, either for or against the parties. It is pertinent to note that the court below adopted all the issues formulated by the 1st and 2nd Respondents, as appellants before it, on the excuse that it did not want to miss any points; but at the end of it all, it omitted to resolve crucial and core points especially as set out in issue 9. If the court below had considered arguments on this issue it would have agreed with the trial tribunal that the allegations in the petition were not proved. Thus the court wrongly came to the conclusion that there was over-voting in the three Local Government Areas of Abia State, namely, Osisioma, Obingwa and Isiala Ngwa North. It held that the votes generated therefrom “were smeared and infested with illegality”, yet it failed or neglected to resolve the issue submitted to it on the criminal allegation. It also held, inter alia at page 5871 of the record thus:-
“Ordering of fresh election will arise only where a clear winner did not emerge after a deduction of the illegal votes”,
I cannot fathom the soundness of this conclusion based on “illegal votes”, without upturning the judgment of the Trial Tribunal that the criminal allegations in the petition were not proved. This decision is perverse.’]
.
.
↪️ ISSUE 3: IN APPELLANT’S FAVOUR.
[THE COURT BELOW GRANTED RELIEFS NOT SOUGHT
‘I agree that the court below went against the grain of the reliefs sought by the petitioners, turning itself to be Father Christmas, dishing out the reliefs not claimed. The court nullified the elections in 3 LGAs and returned the petitioners as winners of the election, when by their pleading relief (v) the petitioner, expressly agreed that it is only supplementary election that can ascertain the final scores of candidate. It was evident that the court below partly granted reliefs (v) and (iv) in the petition, when the reliefs were sought in the alternative. The court voided elections in the 3 LGAs as specifically prayed in relief (v) and returned 1st Respondent as Governor as specifically prayed in relief (iv). For the umpteenth time I hold that there was no relief for the return of the 1st Respondent as Governor in the event of the court voiding the said elections in the 3 LGAs. More particularly so, when the petitioners (as appellants) before the lower expressly abandoned the said relief (v) by failing to canvass any arguments thereon in respect of a request for a re-run election. That being so there was no basis for nullification of elections in the said 3 LGAs.
The implication of returning the 1st Respondent as Governor of Abia State is that the court below gave him more than he had prayed for. So it seems, because in returning him as the Governor after purportedly cancelling and excluding the results in the said 3 LGAs, the court below at page 5873 of the record allotted 164, 332 votes to the 1st Respondent and the Appellant 115, 444. In the effect, the lower court gave the 1st Respondent well over eight thousand votes more than they had expressly asked for. It is expected that before the lower court embarked upon this mathematical “additions and subtractions exercise, ex curiae and suo motu” as contended by the Appellant, he should have been afforded a hearing. In the process of these calculations the court below cancelled the elections in the said three Local Government Areas disenfranchising thousands of voters, including the appellant who allegedly is said to have hailed from one of those Local Government Area. At the risk of repetition, the petition of the respondents was not based on over-voting and there was no proof of the same. One cannot fathom the reason why the court below held, on page 5871 of the record, that “ordering of fresh election would arise only where a clear winner did not emerge after the deduction of the illegal vote”. Section 53(2) of the Electoral Act, 2010 (as amended) which the court below referred to, provides for nullification of votes at the polling unit, if the votes cast in the polling unit exceed the number of registered voters, and could order the conduct of another election. It is in FORM EC40C the evidence of such cancellation and ordering of a fresh election is always recorded, and this fact was not before the court below at all. The court cannot “side-track” this clear provision and hold, as it did on page 5871 (supra). My attention was further drawn to subsection 3 of Section 53 of the Act which provides clearly that where election is nullified in accordance with subsection (2), there shall be no return for the election until another poll has taken place in the affected area. The Electoral Act does not contemplate disenfranchisement of a registered voter at an election, how much more exercise his right in post election. Much disturbing is the fact that the court went further to declare the 1st Respondent herein as having scored majority lawful votes cast in the election of 11th and 25th April, 2015 in spite of the fact that relief (ii) had been struck out. A point has been made by the Appellant that even if that relief was not abandoned, the court below is restricted to the election of 11th April, 2015. This point has been considered in issue 1, that even if the relief was not abandoned it can only be sought subject to another round of election to ascertain the true winner.’]
.
.
↪️ ISSUE 4: IN APPELLANT’S FAVOUR.
[THE STATE RETURNING OFFICER CANCELLING ELECTION RESULT IS NULL & VOID
‘In its finding that the State Returning Officer had no power to cancel election results, the court below was agreeing with the settled position of the law, as laid down by this court in DOMA v INEC (supra) to the effect that it was ultra vires the powers of the State Returning Officer to cancel elections. Since in law the State Returning Officer acted ultra vires to cancel election results the 1st Respondent could not have been returned as the winner on the basis of such invalid cancellation. As earlier noted the only relief where the Respondents (as petitioners) expressly sought for voiding of election in those LAGs is the alternative relief (v) which was sought subject to a re-run election. In the light of the foregoing I am of the firm view that this issue should be resolved in favour of the Appellant herein, and it is hereby so resolved.’]
.
.
.
✓ DECISION:
‘In sum, I find merit in this appeal, it is allowed. I hereby set aside the judgment of the Court of Appeal dated 31st December, 2015 and affirm the decision of the Tribunal of 3rd November, 2015; which upheld the election and return of the Appellant herein, OKEZIE VICTOR IKPEAZU AS GOVERNOR OF ABIA STATE OF NIGERIA. In clear terms, in the circumstance, the parties are to bear their respective costs. APPEAL ALLOWED.’
➥ FURTHER DICTA:
⦿ WHERE CRIMINAL ALLEGATIONS ARE MADE IN PLEADINGS, IT IS TO BE PROVED BEYOND REASONABLE DOUBT
I agree with the Learned Senior Counsel for the Appellant that crime was inextricably woven with the allegation in the petition. The basis of alleged irregular accreditation is violence but as observed that has not been proved. The claim of over-voting could not have been succeeded without proof of forgery, fabrication etc. Where petitioners suffuse criminality with their pleadings, in a civil claim they are bound to prove same beyond reasonable doubt. See NWOBODO v ONOH (supra) and Section 135 Evidence Act (supra). — S. Galadima JSC.
⦿ STATE RETURNING OFFICER HAS NO POWER TO CANCEL ELECTION RESULT
Beyond arguments of respective counsel on this issue, the law has been fairly settled on whose responsibility it is to cancel an election result. The two lower courts are ad idem on this. It cannot be disputed either that the Appellant and the Respondents herein were in agreement as well at the trial Tribunal that the State Returning Officer had no power whatsoever to cancel polling results. The Appellant consistently relied on the decision of this court in DOMA v INEC (2012) ALL NWLR (PT. 628) 813 at 833 to support this view, whilst the Respondents supported the Appellant’s position with the Court of Appeal decision in INEC v ABUBAKAR (2009) 8 NWLR (PT. 1143) 259 at 289. In DOMA v INEC (supra), the authority to cancel election results came up for consideration. In the case DW3 who was the collation officer purported to have cancelled results of the election as against DW9 who was the presiding officer at the polling unit. This court did not only hold that the State Returning Officer has no power in law to cancel election results but deprecated his “guts” to have done so. — S. Galadima JSC.
⦿ OVER VOTING WAS NOT PROVED BEFORE THE COURT
Exhibit PWC2 was dumped. The trial tribunal made a finding of this, but the court below did not consider this unassailable finding before relying on the said document. In their petition, the petitioners pleaded that accreditation occurs at each polling unit designated for voting. Section 53 (2) of the Electoral Act 2010 deals with over-voting at polling units. In proof of the allegation of over-voting, petitioners (1st and 2nd Respondents) bear the responsibility of calling eyewitnesses from each polling unit to give evidence of the circumstances that led to over-voting, preferably party agents. See UCHA v ELECHI {2012} 13 NWLR (PL 1317) 33 at 359; ACN v NYAKO (2012) 11 NSC 1 at 66. PW 19 who tendered Exhibit PWC 2 was clearly not in a position to give evidence on it and her witness statement, Exhibit PWB, a total of 12 paragraphs could not have explained over-voting in each of the polling units in the affected three Local Govt. Areas. Exhibit PWC 2 is said to be dumped. By paragraph 6 of PW 19’s Witness Statement, she stated clearly that one Collins Onyemaobi was the maker of Exhibit PWC 2 who also certified it. Again in paragraph 9 of PW 19’s witness statement, she admitted that the said Exhibit PWC 2 which she earlier stated was certified by Collins Onyemaobi as well as certificate of compliance as provided in Section 84 of the evidence Act, was also certified by one Mrs. O. O Babalola. It is now settled law that a party who did not make a document is not competent, to give any evidence on it. This is the situation here. PW 19 did not make Exhibit PWC 2 she cannot competently tender it. The maker must be called to test its credibility and veracity. The same goes for PW 20 whose bulk of the testimony was hearsay. He gave evidence of alleged malpractices across the 3 Local Govt. Areas of the State that he did not visit Such hearsay evidence qualifies it as unreliable as it is not in tune with the provision of Section 38 of the Evidence Act. See DOMA v INEC (supra); HASHIDU v GOJE (supra). I refer to page 5563 of the record where the trial Tribunal emphatically found that the Exhibits tendered were merely dumped on it without speaking to them, and that the petitioners relied heavily on PW 20 who gave evidence which is not reliable, as he was not a Polling Unit Agent or Ward or Local Govt. Agent. By their Ground 21 of the 1st and 2nd Respondents’ Notice of Appeal before the lower court (page 5580 of the record) they challenged the finding of the tribunal that their documents and Exhibits were dumped. Issue 12 in their brief of argument (pp 5628 – 5630 of the record) was distilled from that Ground 21. The court below did not upturn the findings and judgment of the Tribunal on the issue that PW 20 was neither a polling unit agent nor a ward agent or Local Govt. Agent as well as the fact that the Exhibits relied on including Exhibit PWC 2 were merely dumped. — S. Galadima JSC.
⦿ WHERE GROUNDS OF ELECTION PETITION ARE AMBIGUOUS, IT WOULD BE STRUCK OUT
The petitioner is required, as a matter of necessity, to state in clear terms the facts giving rise to a ground or grounds upon which he based his petition. Anything short of that renders the Ground (s) ambiguous, vague and incomprehensive capable of beclouding the mind of the respondent making him unable to understand what he is required to respond to. Where such a situation presents itself the trial Tribunal has no alternative but to strike out such ground(s) of the petition (as in this case at hand).
I agree with Learned Senior Counsel when he submitted that 1st and 2nd Respondents did not make any application whether oral or written before the Tribunal to correct any “typographical error” in their petition. The Tribunal could not have suo motu corrected the admitted error(s) by the said Respondents. — S. Galadima JSC.
⦿ IT IS VERY DIFFICULT TO PROVE ELECTORAL MALPRACTICE BEYOND REASONABLE DOUBT
Finally, an examination of the Electoral Act and a study of decided authorities on electoral matters reveals that a petitioner has a difficult task proving his petition in accordance with the Electoral Act. It is very difficult to prove criminal allegations beyond reasonable doubt. That explains why I am firmly of the view that the Electoral Act should be amended to shift the burden of proof to the Independent National Electoral Commission. It should be their burden to prove that they conducted an election properly. — Rhodes-Vivour JSC.
⦿ REQUIREMENTS TO PROVE OVER VOTING
This court has held in several recent decisions, that in order to prove over-voting, which was one of the contentions in this case, the petitioner must tender the voters register, the statement of results in appropriate forms and must relate each of the documents to the specific area of his case. He must also show that he figure representing the over voting, if removed would result in victory for the petitioner. — K. M. O. Kekere-Ekun JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Suleiman Galadima, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Wole Olanipekun SAN
⦿ FOR THE RESPONDENT(S)
Chief Akin Olujinmi CON, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
