Legalpedia Citation: (2015-03) Legalpedia 79432 (CA)
In the Court of Appeal
abuja
Tue Mar 31, 2015
Suit Number: CA/C/NAEA/287/2015
CORAM
O. A. OTISI, J.C.A
PARTIES
CAPT. ENO UTUM INAH (RTD.)
APPELLANTS
MR. ETENG JONAH WILLIAMS
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, ELECTION, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, STATUTE
SUMMARY OF FACTS
1. In the election into the Cross River State House of Assembly, Yakurr 11 State Constituency, which held on April 11, and 25, 2015, the 1st Appellant, representing the 2nd Appellant, and 1st Respondent, representing the 3rd Respondent, were candidates. The 1st Respondent was declared winner of the election on April 25, 2015. Dissatisfied with this result, the Appellants filed a petition before the National Assembly and State Houses of Assembly Election Tribunal, Calabar on the grounds that the 1st Respondent was not qualified to contest as at the time of the election; the election was marred by reason of corrupt practices and non-compliance with the provisions of this Act; and the 1st Respondent was not duly elected by majority of lawful votes cast at the election, wherein they also sought a number of reliefs. At the end, the lower Tribunal in its judgment, dismissed the Appellants’ petition. Aggrieved by the judgment, the Appellants lodged the instant appeal by Notice of Appeal upon twelve Grounds of Appeal.
HELD
Appeal Allowed
ISSUES
1. Whether the return of the 1st Respondent by the 2nd and 4th Respondents certificate of return issued on the 13th day of April, 2015 before the conclusion of the election of the 25th day of April, 2015 is not conclusive prove of non-compliance with the provisions of the electoral Act, 2010 (as amended) and the said certificate constitute evidence against the interest of the Respondents.
2. Whether the standard/burden of proving civil and/or criminal allegations are the same in an election petition and if not, whether the lower trial Tribunal evaluation of the evidence of the parties to the Petition at the lower Tribunal is not perverse and thereby occasion a miscarriage of justice on the Appellants.
3. Whether by virtue of Section 141 of the Electoral Act, 2010 (as amended) and the case Of Usman Vs. Dangana (2012) All FWLR (Pt. 627) 617 the conduct of the 3rd Respondent’s primaries is an intra-party affair of the 3rd Respondent for which the Appellants cannot question as a ground of qualification to contest the election.
4. Whether the Tribunal was not bound to interpret the mandatory provision of Section 31 (1) and (2) of the Electoral Act, 2010, (as amended) and follow the case of Usman Vs. Dangana (2012) All FWLR (pt. 627) 617 without more.
5. Whether the lower Tribunal failure to pronounce on all the issues raised and placed before it by the Appellants is not tantamount to a denial of fair hearing which occasioned a miscarriage of justice on the Appellants.
RATIONES DECIDENDI
PLEADINGS – STATUS OF EVIDENCE THAT IS AT VARIANCE WITH PLEADINGS
“There is no doubt that parties are bound by their pleadings and thus evidence of facts not pleaded would go to no issue; Shell B.P. Ltd v. Abedi (1974) 7 S.C. 16; Ajayi v Texaco Nigeria Ltd(1987) 9-11 S.C. 1; Agala v Okusin (2010) 10 NWLR (PT 1202) 412 S.C.
However, one must not lose sight of the fact that issues are joined in pleadings, and not the evidence; Bamgboye v University of Ilorin (1999) 6 S.C (PT 11) 72. Evidence adduced must therefore be in line with the pleadings and if the evidence is at variance with the pleadings, it must be ignored. -PER O. A. OTISI, J.C.A
EVIDENCE -WHETHER DOCUMENTS TENDERED BEFORE A COURT AT THE TRIAL ARE PART OF THE EVIDENCE TO BE CONSIDERED IN THE DETERMINATION OF ISSUES BEFORE THE COURT
“Additionally, it is trite law that documents tendered before a Court at the trial of a case are part and parcel of the evidence to be considered in the determination of issues before the Court and are made subject to the scrutiny of the Court, being tested for credibility and the weight to be attached thereon; per Okoro, JSC in Ekong v Otop (2014) LPELR- 23022 (SC), (2014) 11 NWLR (Pt.1419) 549 at 573 S.C. –PER O. A. OTISI, J.C.A
CERTIFICATE OF RETURN – GUIDING PRINCIPLES FOR THE ISSUANCE OF A CERTIFICATE OF RETURN TO A CANDIDATE
ELECTION-“An election is the process of choosing by popular votes a candidate for political office in a democratic system of government; per Adekeye, JSC in Marwa v Nyako (2012) LPELR-7837 (sc) (CON). The process of election includes the accreditation of voters, the voting, collation, recording on all relevant INEC forms and the declaration of result; Oke v Mimiko (2013) LPELR-21368 (SC); Fayemi v Oni (supra) also reported in (2010) LPELR-4145 (CA); Okoye v INEC (2010) LPELR-4728 (CA). Collation of results must be concluded before the result can be declared. That step cannot be jumped in the election process. The end of the process is the issuance of certificate of return to the successful candidate; Yardua v Yandoma (2014) LPELR-24217 (SC).
By virtue of Section 75(1) of the Electoral Act, 2010, as amended, a Certificate of Return is issued within seven days to every candidate who has won an election. In other words, the Certificate of Return is issued at the conclusion of the election. The Certificate of Return cannot be issued without the election process being completed with the collation of results.
In the recent case of Onjeh v Mark (2015) LPELR-25974 (CA); this Court found that as at 29/3/2015 collation for nine Local Governments making up Benue South Senatorial District had not been concluded or completed when the Returning officer purportedly returned the 1st Respondent therein as elected on 28/3/2015. This act was found to be in breach of the provisions of Sections 73 and 74 of the Electoral Act, as well as in breach of the manual and guidelines for Election for INEC Officials, 2015. This Court therefore held as being void the declaration of the result of the election in issue therein, before collations were concluded. -PER O. A. OTISI, J.C.A
STATUTE STATUTORY PROVISION – WHERE A STATUTE PROVIDES FOR A PARTICULAR PROCEDURE OR METHOD FOR PERFORMING ANY ACT, ANY OTHER PROCEDURE OR METHOD EMPLOYED IN CONTRAVENTION IS A NULLITY
“It is well settled that where a statute provides for a particular procedure or method for performing any act, no other method or procedure can be employed. In Mega progressive peoples Party v. INEC (2015) LPELR-25706 (SC), the Supreme Court, per Muhammad, JSC succinctly put thus: “Certainly, when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by legitimate authority, then whatever is done in contravention, it amounts to nullity.”
See also: NNPC v Famfa Oil Ltd LPELR-7812 (SC) (Consolidated);University of Calabar Teaching Hospital v Bassey (2005) LPELR-8553 (CA). –PER O. A. OTISI, J.C.A
CASES CITED
NNPC v Famfa Oil Ltd LPELR-7812 (SC) (Consolidated);
University of Calabar Teaching Hospital v Bassey (2005) LPELR-8553 (CA). -PER O. A. OTISI, J.C.A
STATUTES REFERRED TO
Electoral Act, 2010 (as amended)