Legalpedia Citation: (2015-12) Legalpedia 19963 (CA)

In the Court of Appeal

Wed Dec 16, 2015

Suit Number: CA/L/EP/HA/1139/2015

CORAM

MOHAMMED BELLO, JUSTICE, SUPREME COURT

TASLIM O. ELIAS, JUSTICE SUPREME COURT

MOHAMMED BELLO, JUSTICE, SUPREME COURT

PARTIES

BALOGUN ABDULBAQ AGBOOLAALL PROGRESSIVE CONGRESS (APC)

APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This appeal emerged from the Judgment of the National Assembly and State Houses of Assembly Election Petitions Tribunal, Lagos State.

The facts giving rise to the appeal are that, following the elections conducted by the 3rd Respondent, the 1st Respondent was declared winner of the election, Appellants were aggrieved by the declaration on the ground that the elections in 67 Polling Units particularly 27 out of 40 Units in Olodi Ward 03, and 40 out of 49 Units in 04 Ajeromi-Ifelodun were marred with irregularities and substantial non-compliance which substantially affected the results in 67 Units declared by the 3rd Respondent, and that the declaration of the 1st Respondent as winner of the said election was improper.

On the strength of this position, Appellants made for the lower Election Tribunal and filed their petition challenging the declaration and return of the 1st Respondent as the winner. The Appellants petition at the lower Tribunal was then heard and dismissed. Appellants became dissatisfied and therefore made for this Court.

HELD

Appeal Dismissed

ISSUES

1. Whether the Tribunal was correct when it erroneously inverted the principle of substantial non-compliance and held that the election was valid because there was “some form of compliance” in the conduct of the election despite its findings that there was substantial non-compliance with the provisions of the Electoral Act at the election? (Ground 1 of the Notice of Appeal).?
2. Whether the Tribunal was correct when it held that the Appellants’ failure to seek an order of fresh election in their petition as envisaged under Section 140(2) of the Electoral Act is fatal to the Appellants’ case? (Grounds 3 of the Notice of Appeal).?
3. Whether the Tribunal was correct when it held that the Appellants did not plead non-ticking of voter’s register and did not confront their witnesses with voters’ register and therefore discountenanced all evidence elicited under cross-examination of the witnesses of the 1st Respondent to prove no or improper accreditation in the polling units challenged in the petition? (Grounds 5 and 6 of the Notice of Appeal)?
4. Whether the Tribunal was correct when it refused to nullify the result declared in the polling units where it found no evidence of accreditation and substantial non-compliance with the provisions of the Electoral Act? (Grounds 2, 4, 7 of the Notice of Appeal).?
5. Whether the Tribunal was correct when it held that the evidence of PW65 is the evidence of an interested party because he is an agent of the Appellants and discountenanced his evidence as tainted? (Grounds 8 of the Notice of Appeal).?
6. Whether the Tribunal was correct when it refused to pronounce on the effect of the 3rd Respondent’s inability to produce ballot papers and ballot boxes for more than half of the polling units challenged in the Petition? (Grounds 9 and 13 of the Notice of Appeal).?
7. Whether the Tribunal was correct when it held that the Appellants abandoned its pleadings and failed to properly evaluate the evidence led by the Appellants before it? (Grounds 10 and 12 of the Notice of Appeal).?
8. Whether the Tribunal was correct when it refused the Appellants’ application to allow PW56 count the ballot papers which the Tribunal ordered to be produced before it by subpoena duces tecum et ad testificandum? (Grounds 11 of the Notice of Appeal).?

RATIONES DECIDENDI

NOTICE OF APPEAL – CONTENT OF A NOTICE OF APPEAL

A notice of appeal shall set concisely and under distinct heads, the grounds upon which the Appellant intends to rely at the hearing of the appeal without any narrative or argument, it is settled that neither a ground of appeal nor the supporting particulars should contain argument or narrative, see: ADAH Vs. ADAH (2001) 5 NWLR (Pt. 705). PER – TIJJANI ABUBAKAR, JCA

BRIEF OF ARGUMENT – PURPOSE OF BRIEF OF ARGUMENT

I carefully scrutinized the grounds of appeal and the supporting particulars challenged by the 1st Respondent, it appears Appellants Counsel decided to be elaborate and lavish in providing the particulars supporting the grounds of appeal, and so doing almost rendered Appellants brief of argument insignificant because the purpose of briefs of argument is to assist in the administration of justice and make the work of the Court simpler; briefs are designed to promote Justice. See SHELL PET DEV CO. NIG Vs. F. B.I. R (1996) 8 NWLR (Pt. 444) 256, where Counsel decides to embark on uploading his evidence and argument in support of particulars of a ground of appeal to the extent of citing judicial authorities has certain done so to the irritation of the Court, it is like filing double briefs of argument, the authorities cited and the lengthy arguments are for Appellants brief not particulars of a ground of appeal. A ground of appeal and particulars of error even though argumentative is not ipso-facto incompetent so long as it is not capable of misleading the other side and the Court is satisfied that its meaning can be reasonably elicited. See: ADEROUNMU Vs. OLOWU (2000) NWLR (Pt. 652) 253, ODONIGI Vs. ONYELEKE (2000) 6 NWLR (Pt. 706) 2, GARBA Vs. KWARA INV CO. LTD (2005) 1 SCNJ 290 at 296-7, and CBN Vs. OKOJIE (2002) 8 NWLR (Pt. 768) 48. PER – TIJJANI ABUBAKAR, JCA

ELECTION PETITION – WHAT AN APPELLANT MUST PROVE TO ESTABLISH NON-COMPLIANCE THAT WOULD AFFECT THE RESULT OF AN ELECTION

In order to establish non-compliance that would affect the result of the election, the Appellant must prove the allegations and then go ahead by the same evidence to show that, the non-compliance had substantially affected the result of the election, failure to do so by the Appellant would automatically defeat the petition. See: BUHARI Vs. INEC (2008) 4 NWLR (Pt. 1078) 546. PER – TIJJANI ABUBAKAR, JCA

COURTS – WHETHER OR NOT COURTS ARE A PHILANTHROPIC ORGANIZATION

The law is clearly settled that Courts are no philanthropic organizations that dish out orders without specific prayer for them. Courts of law are not established to deal with academic questions; courts are established to deal with matters in controversy between parties. See: OKOTIE-EBOH Vs. MANAGER (2004) 18 NWLR (Pt. 905) 242. PER – TIJJANI ABUBAKAR, JCA

ELECTORAL COMMISSION – THE REBUTTABLE PRESUMPTION THAT RESULTS DECLARED BY AN ELECTORAL COMMISSION ARE CORRECT

The law is also fairly settled on seeming endless judicial authorities, that when he umpire, the electoral commission declares results, there is presumption that the results are correct, this presumption is however rebuttable if the Petitioner is able to discharge his obligations to the satisfaction of the Court: See BUHARI & ANOR Vs. OBASANJO & OTHERS (2005) ALL FWLR (Pt. 273) 1 at 124 PER – TIJJANI ABUBAKAR, JCA.

EVALUATION OF EVIDENCE – WHETHER OR NOT EVALUATION OF EVIDENCE/MAKING PRIMARY FINDINGS OF FACT IS WITHIN THE PROVINCE OF THE TRIAL COURT

It must be stressed again that evaluation of evidence and making primary findings of fact is within the province of the trial Court, unless it is shown that the trial Court failed in its duty to conduct proper evaluation, the Appellate Courts cannot interfere with such findings, See: IRIRI Vs. ERHURHOBORA (1991) 2 NWLR (PT 1730 252, OKUNZUA Vs. AMOSU (1992) NWLR (Pt. 248) 416 PER – TIJJANI ABUBAKAR, JCA

INVALIDATION OF ELECTION RESULTS – WHETHER OR NOT IRREGULARITIES RELATING TO JOINING QUEUE AND ADMINISTRATIVE ISSUES CAN CONSTITUTE SUBSTANTIAL NON-COMPLIANCE TO INVALIDATE ELECTION RESULTS

The Petitioners alleged that voters did not queue and that they were not counted, and that security personnel did not stand at the end of the queue, the Tribunal found that these are administrative issues which by their nature relate to the assistance to be rendered to the umpire in the performance of its duties, and joining queue by voters is not a substantial material point worthy of substantial discourse, the Tribunal relied on the decision in CPC Vs. INEC (2012) 2 SCNJ 449. I also entirely agree that irregularities relating to joining queue and other administrative issues cannot constitute substantial non-compliance sufficient to invalidate election results, I also hold the view that trivialities must not be accorded prominence in managing elections. PER – TIJJANI ABUBAKAR, JCA

CASES CITED

STATUTES REFERRED TO

Electoral Act (2010) as amended

Court of Appeal Rules 2011

Election Tribunal and Court Practice Directions 2011

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