Legalpedia Citation: (2024-01) Legalpedia 85178 (CA)

In the Court of Appeal

Holden At Calabar

Thu Jan 4, 2024

Suit Number: CA/C/EPT/AKW/HR/39/2023

CORAM

Balkisu Bello Aliyu Justice, Court of Appeal

Abba Bello Mohammed Justice, Court of Appeal

Asma’u Musa Mainoma Justice, Court of Appeal

PARTIES

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

APPELLANTS

1. DR. GLORY EMMANUEL EDET
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. HON. EMMANUEL EFFIONG UKPONG UDO
4. YOUNG PROGRESSIVES PARTY (YPP)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 3rd Respondent was declared as the winner of the election for member, House of Representatives representing Ikono/Ini Federal Constituency of Akwa Ibom State. The election was conducted by the Appellant on the 25th February, 2023 and concluded with a supplementary election of 15th April, 2023. The 1st Respondent contested the election as the candidate of the 2nd Respondent, while the 3rd Respondent contested under the platform of the 4th Respondent. The Appellant (INEC) declared the 3rd and 4th Respondents as winners of the election having scored 19, 926 votes while the 1st and 2nd Respondents came second with 15, 765 votes.

The 1st and 2nd Respondents challenged the declaration and return of the 3rd Respondent as winner of the election on the ground that the election was invalid by reasons of non-compliance with the provisions of the Electoral Act, 2022 and that the 1st Respondent was not elected by the majority of the lawful votes cast at the election.

The Appellant was the 3rd Respondent in the petition.

The trial tribunal found merit in the petition and ruled in favour of the Petitioners and ordered a re-run election.

The Appellant was aggrieved with the judgment and filed the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the Honourable Tribunal was right in its decision that the pleadings closed in the petition in compliance with Paragraph 18(1) of the First Schedule to the Electoral Act, 2022 on the 20th day of July, 2023, when the petitioners filed their reply to the 1st and 2nd Respondents’ reply and that Paragraph 53(2) of the First Schedule to the Electoral Act 2022 can avail the Petitioners for breach of the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2022?
2. Whether the Honourable Tribunal was right in failing to pronounce and or determine the Application of the 3rd Respondent (Now Appellant filed on the 10th August, 2023 and argued on the 4th of September, 2023, seeking to dismiss the petition as being abandoned?
3. Whether the Tribunal was right in failing and or refusing to strike out the Petitioners’ Reply to the 2nd Respondent’s Reply to the Petition which violates the provisions of Paragraph 16(1) of the First Schedule to the Electoral Act, 2022?
4. Whether the witness dispositions and evidence of PW1-PW12 and all other subpoenaed witnesses called by the Petitioners are in violation of Section 285(5) of the CFRN 1999 (as amended), Section 132(7) of the Electoral Act, 2022, Paragraph 4(5), 12, 14, 16 of the First Schedule to the Electoral Act 2022?
5. Whether the Honourable Tribunal evaluated properly the evidence of the parties before coming to the decision that it found merit in the petition?

RATIONES DECIDENDI

PETITIONER – TIME WITHIN WHICH A PETITIONER IS TO APPLY FOR THE ISSUANCE OF PRE-HEARING-NOTICE

By Paragraph 18(1) of the First Schedule to the Electoral Act, 2022, a Petitioner shall within seven days after filing and service of the petitioner’s reply on the respondent or within seven days after the filing and service of the respondent’s reply, whichever is the case, apply for the issuance of pre-hearing notice as in Form TF007. – Per B. B. Aliyu, JCA

OBJECTION – WHEN A PARTY CAN SUCCESSFULLY AN RAISE OBJECTION TO A PROCEDURAL IRREGULARITY

It is pertinent to state here that although the provision of Paragraph 18(1) mandates that the application for pre-hearing notice be made after filing and service of the last reply to the Petition, by the decision in SANWO-OLU v AWAMARIDI (supra), it is now settled that where the last reply was filed and an application for pre-hearing is made by a Petitioner before his last reply is served, the Respondent on whom it is served may only successfully challenge the competence of that pre-hearing application on the ground it was made before service of the reply, if he has not taken any steps in the pre-hearing procedures, such as was done by the Appellants herein, who not only filed their answers to the pre-hearing information sheet but also filed their issues for determination.

It is an established principle of law in civil proceedings that a party can only raise objection to a procedural irregularity in a proceeding before taking any steps in the proceeding. With specific regard to election petitions, Paragraph 53(2) of the First Schedule to the Electoral Act, 2022 similarly provides that:

“An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”

In PETER v INEC & ORS (2008) LPELR-4846(CA), this Court, faced with a similar scenario in which the Respondent raised objection after taking several steps in the proceedings, applied a similar provision of Paragraph 49 of the First Schedule to the Electoral Act, 2006 and held, per Muhammad, JCA (as he then was) at pages 14 – 27, paras. D – F, that:

“The Respondents had taken so many steps in the proceedings after becoming aware of the defects on which their objections were raised. The law does not allow them to raise the objection at that stage. It is for these reasons that appellant’s first issue is resolved against the Respondents.” – Per B. B. Aliyu, JCA

PETITIONER’S REPLY – CONDUCT OF A PETITIONER FILING A PETITIONER’S REPLY

Paragraph 16(1) of the First Schedule to the Electoral Act, 2022 provides as follows:

“16(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the respondent’s reply a petitioner’s reply in answers to the new issues of fact, so however that –

(a) the Petitioner shall not at this stage be entitled to bring in new facts, grounds, or prayers tending to amend or add to the contents of the Petition filed by him.”

The import of Paragraph 16(1)(a) of the First Schedule, is that a Petitioner may in filing a Reply, respond to allegations of new facts raised in a Respondent’s reply to the Petition, provided he does not in so doing amend or add to the Petition. It is instructive to observe that the words used in Paragraph 16(1)(a) are “new facts, grounds or prayers tending to amend or add to the contents of the petition”. The word “new” suggests something which is not there, while the word “amend” signifies modification. “Add” on the other hand means to increase. What the provision envisages therefore, is that the Reply of the Petitioner must strictly be confined to the new facts raised in the Respondent’s reply and must not go over that to attempt to amend or add to the Petition. See ALL PROGRESSIVES CONGRESS v PEOPLES DEMOCRATIC PARTY & ORS (2015) LPELR-24587(SC), DINGYADI v WAMAKKO (2008) 17 NWLR (Pt. 1116) 395 at 442 – 443, ADEPOJU v AWODUYILEMI (1999) 5 NWLR (Pt. 603) 364 and IKORO v IZUNASO & ORS (2008) 4 LRECN. – Per B. B. Aliyu, JCA

EVIDENCE – BURDEN OF PROOF IN CIVIL PROCEEDINGS – CONDUCT OF COURTS IN CIVIL PROCEEDING

As rightly observed by the Tribunal above, a party who asserts the existence of a fact has a duty to prove the existence of that fact. See Sections 131(1) and 132 of the Evidence Act, 2011 and MAIHAJA v GAIDAM (2017) LPELR-42474(SC) at 61 – 62, paras. E – B and TUMBIDO v INEC & ORS (2023) LPELR-60004(SC) at 42, paras. A – B.

…There is a solemn duty upon the judge or Court to remain detached and not only to remain but also appear to be impartial in adjudicating between the contesting parties. A judge or Court has a duty not to descend into the arena by bridging a yawning gap in a party’s case. See EJOWHOMU v EDOK-ETER MANDILAS LTD (1986) LPELR-1071(SC) at 69, paras. F – F, SUBERU v STATE (2010) LPELR-3120(SC) at 18, paras. E – F and AMADI & ORS v ORLU & ORS (2023) LPELR-60695(SC) at 28, paras. C – E. – Per B. B. Aliyu, JCA

ELECTION PETITION – THE CONTENTS OF AN ELECTION PETITION – WHERE A WITNESS STATEMENT ON OATH WAS NOT FRONTLOADED OR FILED ALONG WITH THE PETITION

Paragraph 4 of the 1st Schedule to the Electoral Act, 2022 stipulates the contents of an election petition which shall be filed. In particular, Paragraph 4(5) of said Schedule mandates as follows:

“(5) The election petition shall be accompanied by –

(a) a list of the witnesses that the Petitioner intends to call in proof of the petition;

(b) written statements on oath of the witnesses; and

(c) copies or list of every document to be relied on at the hearing of the petition.”

By subparagraph (6) of that paragraph, a petition which fails to comply with the above requirements shall not be accepted for filing by the Secretary.

In the instant appeal, it is not disputed that PW1 – PW12, who gave evidence on behalf of the 1st and 2nd Respondents in support of the Petition, were subpoenaed witnesses whose witness statements on oath were not frontloaded and filed along with the Petition as mandated by Paragraph 4(5)(b) of the First Schedule to the Electoral Act quoted above.

The above quoted provisions of the First Schedule to the Electoral Act was considered by the Supreme Court in OKE & ANOR v MIMIKO & ORS (2013) LPELR-20645(SC) at pages 43 – 45, paras. D – D, per Ogunbiyi, JSC; (NO. 1) (2014) 1 NWLR (Pt. 1388) 225, where the Apex Court, per Ogunbiyi, JSC held that:

“By Paragraph 4(1) and (5) of the 1st Schedule to the Electoral Act, a composite analysis of an election petition has been spelt out and also a list of materials which must be accompanied. The use of the word “shall” in the subsections is very instructive, mandatory and conclusive. In other words, the provisions do not allow for additions and hence, the procedure adopted by the appellants in seeking for an extension of time is nothing other than surreptitious attempt to amend the petition. This is obvious from the nature and substance of the application especially where one of the grounds seeks to put in facts which were allegedly not available at the time of filing the petition but only came into their possession after the statutory time limit allowed for the presentation of election petition. Expressly, there is no provision in the legislation which provides for extension of time. What is more, vide Paragraph 14(2) of the 1st Schedule to the Electoral Act, the Appellants by Section 134(1) of the Electoral Act had been totally foreclosed from any amendment which was in fact the hidden agenda promoting the application. The saying is true that even the devil does not know a man’s intention; it can only be inferred from the act exhibiting that which is conceived in the heart and mind. The use of the word “shall” in Paragraph 14(2)(a) of the 1st Schedule to the Electoral Act is mandatory and places a complete bar on any form of amendment to a petition filed and does not also allow for an exercise of discretion whatsoever…. Further still and on a critical perusal of the application, relief 2 seeks “leave to call additional witness, to wit A.E.O”. It is pertinent to restate that at the close of pleadings parties had submitted the list of witnesses who were to testify together with their depositions. The idea, purpose and intention of the application is suggestive of nothing more but a clear confirmation seeking for an order of an amendment as rightly and ingeniously thought out by the trial tribunal and also affirmed by the lower Court. This will certainly violate the provisions of Section 285(5) of the Constitution and Section 134 of the Electoral Act.”

In his concurring judgment in the same case, Ngwuta, JSC specifically stated that:

“The additional or further witness depositions sought to be allowed for a just and fair determination of the petition are fresh facts as found by the tribunal and which finding was endorsed by the lower Court. This Court will not interfere with a concurrent finding of fact of the two lower Courts when the appellants have failed to show a special circumstance for this Court to do so. Election petitions are time-bound and the Court will not allow a party to resort to any sort of subterfuge to frustrate the intention of the Electoral Act that petitions be disposed of expeditiously.

The above legal position of the Supreme Court has been consistently followed by several decisions of this Court. See among others: OGBA v VINCENT (2015) LPELR-40719(CA) at pages 42 – 49, paras. C – D, ARARUME & ANOR v INEC & ANOR (2019) LPELR-48397(CA) at pages 28 – 36, paras. C – A, OKWURU v OGBEE & ORS (2015) LPELR-40682(CA) at pages 25 – 29, paras. B – A, ANDP v INEC & ORS (2020) LPELR-58279(CA) at pages 36 – 63, paras. D – D and the recent decision of this Court sitting as the Presidential Election Petition Court inPETER GREGORY OBI & ANOR v INEC & ORS (2023) LPELR-60416 (CA), which was also affirmed by the Supreme Court.

Indeed, in subsequently following the Apex Court’s decision inOKE v MIMIKO (supra), this Court, per Agim, JCA (as he then was, now JSC) highlighted this strict stance adopted on this issue in OGBA v VINCENT (supra), at pages 46 – 48, paras. A – B, wherein he held as follows:

“I think that this Court in Omidiran v Etteh and the Supreme Court in Oke v Mimiko adopted different approaches in addressing the issue of whether a Tribunal or Court can allow a witness deposition or other document not filed along with the petition or not filed within the time allowed for filing election petition to be filed and used in an election petition proceeding. Omidiran’s case did not strictly enforce the time limits prescribed in S. 141 of the Electoral Act 2006, the provisions in the First Schedule thereto on prohibiting the introduction of additional facts in the proceedings after the period allowed for filing the petition and closure of pleadings and Paragraph 1(1) of the Election Tribunal and Court Practice Directions 2006 on the content and form of the petition. It held that the purpose of the Practice Directions is to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules, where applicable. This elastic application of the electoral laws by this Court in that case is not in line with the current judicial approach of strict enforcement of electoral laws and the current approach of applying the Election Tribunal and Court Practice Directions as overriding the Rules of Court in election cases. In Oke v Mimiko, the Supreme Court approached the issue in keeping with the current judicial trend of strictly applying electoral laws and procedural rules and giving them supremacy over Rules of Court in election cases. The Supreme Court has consistently in a long line of cases insisted on this strict and inelastic approach in enforcing the electoral laws…. The law as laid out strictisima juris in Oke v. Mimiko is that a witness deposition that is not filed along with the petition within the 21 days allowed for filing the petition cannot be filed in the proceedings. It held thus- “…if there was an evidence which was fundamental to the determination of the petition, that evidence ought to have been placed willy-nilly before the Tribunal within the time limit specified by the Electoral Act or any other Act. That evidence ought to be regarded as the Spinal cord of the petition. Even if it was been withheld by any person, there are several ways to go about placing same before the Tribunal. The Evidence Act is very clear on this. The Petitioners ought to have restored to that procedure …”

The firm and strict legal position stated by the Supreme Court in OKE v MIMIKO (supra), and followed by this Court in OGBA v VINCENT (supra), and all the other cases cited above, is to the effect that, by the combined provisions of Section 285(5) of the 1999 Constitution, Section 132(7) of the Electoral Act, 2022 and Paragraphs 4(5) and (6) and 14(2) of the 1st Schedule to the Act, every written statement on oath of the witnesses which a party intends to call must be filed along with the election petition within the time limited by Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 132(7) of the Electoral Act, 2022. Once the time limited for filing of a petition has elapsed, the contents of the Petition cannot be added to or amended in any manner or under any guise. Any written statement on oath of a witness filed outside that 21 days limitation will amount to a surreptitious amendment of the Petition and a breach of Paragraph 14 of the First Schedule to the Electoral Act, 2022. This is irrespective of whether the witnesses to be called are ordinary or subpoenaed witnesses. – Per B.B. Aliyu, JCA

CROSS-EXAMINATION – THE ESSENCE OF CROSS-EXAMINATION IN ESTABLISHING A FACT IN ISSUE

It is settled law that in establishing a fact in issue, the evidence which is procured under cross-examination is as potent as evidence-in-chief. In OMISORE & ANOR v AREGBESOLA & ORS (2015) LPELR-24803(SC), the Supreme Court emphasized this position when Nweze, JSC held at pages 70 – 71, paras. C – C, as follows:

“It has long been settled that evidence obtained in cross-examination on matters that are pleaded, that is, on matters on which issues were joined (as was the case at the Tribunal), is admissible, Adeosun v. Governor of Ekiti State (2012) All FWLR (Pt. 619) 1044, 1059, Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338, 351; 353-354. In effect, the argument that the third respondent had no evidence before the trial Tribunal is incorrect. That argument would have been impregnable if the pieces of evidence Chief Awomolo, SAN, elicited from the petitioners’ witnesses in cross-examination were not supported by the pleading of either party…” – Per B. B. Aliyu, JCA

ELECTION – WHERE AN ELECTION HAS BEEN DECLARED TO BE INCONCLUSIVE – CIRCUMSTANCE UNDER WHICH INEC CAN INVOKE ITS POWER TO REVIEW A DECLARATION OF RETURN MADE BY IT

The question is whether having invoked the margin of lead principle and declared the result of 25th February, 2023 inconclusive and scheduled a supplementary election for 15th April, 2023, the Appellant can record zero votes in the supplementary election and use the inconclusive result of 25th February, 2023 for which it ordered the supplementary election to declare and return the 3rd Respondent as winner of the election. I hold the view that having applied the margin of lead principle and declared the election of 25th February, 2023 inconclusive, the Appellant cannot under any guise validly revert back to that same result and use same and declare the 3rd Respondent as the winner.

The only circumstance under which the Appellant can invoke its power to review any declaration or return made by it, is under Section 65(1)(c) of the Electoral Act, 2022 and Paragraph 99(a) and (b) of its Regulations and Guidelines for the Conduct of Elections, 2022. Under those provisions, it has power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election. None of those circumstances apply to this case. In short, the Appellant lacks the power to declare the 3rd Respondent as the winner using the results of the election of 25th February, 2023 which it has previously declared inconclusive and conducted a supplementary election on 15th April, 2023 from which no result was produced. Having ordered for a supplementary election with a view to determine the winner, the Appellant is bound to properly conduct the supplementary election to conclusively determine the winner of the election into the Ikono/Ini Federal Constituency. – Per B. B. Aliyu, JCA

EVIDENCE – WHERE THE EVIDENCE OF THE RESPONDENT SUPPORTS THE PETITIONER

As stated earlier, the law is that where the evidence of the Respondent supports that of the Petitioner, the latter is entitled to rely on same, and the rule that the Petitioner must succeed on the strength of his case and not on the weakness of the Respondent’s case, will not apply. See CHUKWUEKE & ANOR v OKORONKWO & ORS (supra), AJAO & 5 ORS v ALAO & 4 ORS (supra), SANNI-OMOTOSHO v OBIDAIRO (supra) and OGUNLEYE v SAFEJO (supra). – Per B. B. Aliyu, JCA

ELECTION – WHERE INEC MAKES A DECLARATION REGARDING AN ELECTION

It is pertinent to state that once the Independent National Electoral Commission (INEC) makes a declaration the only narrow window which it has to review such declaration is the one provided under Section 65(1)(c) of the Electoral Act, 2022 and Paragraph 99(a) of the Regulations and Guidelines for Conduct of Elections, 2022. Under those provisions, the Commission had power within seven days to review a declaration and return where it determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines and manual for the election.

Before the Tribunal, it was not the case of the Commission (Appellant herein) that it carried out any review of election results. Rather, the Commission (Appellant herein) admitted, in both its pleadings and evidence, that it could not hold the supplementary election it had scheduled on 15th April, 2023, which it stated was as a result of violence and disruption, and that it had recorded zero votes for all the candidates in the supplementary election and proceeded to use the inconclusive result of 25th February, 2023 to declare the 3rd Respondent the winner of the election.

Having declared the results of the elections it conducted on 25th February, 2023 as inconclusive and made no review of same whatsoever, INEC (the Appellant herein) is bound by that declaration and it cannot under any guise use that inconclusive result to declare a winner. Lamenting a situation in which INEC tried to go against election result declared by it, this Court, per Aderemi, JCA (as he then was) held in NGIGE v OBI & ORS (2006) LPELR-12920(CA), as follows:

“The moment INEC publishes the result of an election; it is estopped, forever, from denying the authenticity, the genuineness and the truth of all therein contained in the document voluntarily released by it (INEC) relating to the information or figures pertaining to the results. The estoppels subsumed in the release of the sheet or sheets containing the results is a conclusive admission, or if I may put it in another way, something which the law treats, in absolute term, as equivalent to an admission. By this appeal, INEC has shot its own leg. For the sake of the well-being of this great country of ours, I pray and do hope that INEC will from now on allow truth, integrity and above all, fear of God to have absolute impact in discharge of its all-important functions.” – Per A. B. Mohammed, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. The Electoral Act, 2022
3. INEC’s Regulations and Guidelines for the Conduct of the Election 2022
4. Manual for Election Officials, 2023
5. Evidence Act, 2011

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