Legalpedia Citation: (2023-0)8 Legalpedia 97413 (CA)

In the Court of Appeal

Holden At Abuja

Fri Aug 18, 2023

Suit Number: CA/ABJ/CV/818/2023

CORAM

Abdul-Azeez Waziri JCA

Habeeb Adewale Olumuyiwa Abiru JCA

Muhammed Lawal Shuaibu JCA

PARTIES

SEN SMART ADEYEMI

APPELLANTS

1. ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. AHMED USMAN ODODO

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The Appellant at the lower Court prayed for declaration that the 3rd Respondent was not validly nominated as candidate for the 2023 Gubernatorial Election in Kogi State. The Appellant claimed that the 1st Respondent failed to conduct a valid primary election on the 14th of April, 2023 and that the results were falsified. He claimed that no electoral material was delivered to the local government and wards for the said election and that no electoral officer or officer of the 1st respondent showed up for the primary election in their local government and wards. He prayed the Court to order the 1st Respondent to conduct a fresh election thereby giving all aspirants equal rights for nomination.

The learned trial Judge in a considered judgement dismissed the suit. Aggrieved by the decision, the Appellant filed the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether owing to the totality of the evidence led, the trial Court was right to have held that 1st Respondent complied with the provisions of its guidelines and indeed, the Electoral Act 2022 in the conduct of its direct primary election that purportedly produced the 3rd Respondent as its Governorship candidate?

Whether the learned trial judge was right to have held that the Appellant ought to have established his case that is devoid of criminality beyond reasonable doubt?

Whether the trial Court was right to rely on the Appeal Committee Report who failed to hear the petition of the Appellant

RATIONES DECIDENDI

PRELIMINARY OBJECTION – THE PURPOSE OF PRELIMINARY OBJECTION

The purpose of preliminary objection is basically to terminate the hearing of an appeal in limine either partially or totally. Thus, a preliminary objection can only be filed against the hearing of an appeal and not against one or more grounds or issues. Consequently, if it succeeds, that would be the end of the appeal. – Per M. L. Shuaibu, JCA

CROSS-APPEAL – DUTY OF A RESPONDENT TO FILE A CROSS-APPEAL WHEN AGGRIEVED BY A PORTION OF THE DECISION OF THE LOWER/TRIAL COURT

I agree with the submission of the Appellant’s counsel that the issue of commencing the suit via an originating summons is no longer a preliminary issue but an issue which culminates into an appealable decision. And a party who is aggrieved by a decision of the trial Court files a notice of appeal. If however, the Respondent is also aggrieved by the decision or portion of it, he files a cross-appeal.

By the rules of this Court, a Respondent files a cross – appeal where he desires to have a crucial finding set aside. A Respondent’s notice on the other hand is filed when the Respondent desires to retain the judgment appealed against but desires that it should be varied or affirmed on grounds other than those relied upon by the trial Court. In other words, a Respondent who is dissatisfied with a judgment that completely refused his claims or portions of it files a cross appeal; See OBOK & ORS V. AGBOR & ORS (2016) LPELR – 41219 (CA). The law is also settled that where a Respondent has not filed cross appeal or given Respondent’s notice, he cannot raise issue that are outside the grounds of appeal filed by the Appellant. See ATANDA V. AJANI (1989) 3 NWLR (PRT 111) 511 AND IGBINOBA V. IGBINOBA (2003) 3 NWLR (PRT 803) 30. Again, the Respondent having failed to file a cross-appeal and/or Respondent’s notice is estopped from filing a preliminary objection. – Per M. L. Shuaibu, JCA

POLITICAL PARTIES – DUTIES OF POLITITCAL PARTIES TO ACT WITHIN THE CONFINES OF THEIR CONSTITUTION AND ELECTORAL GUIDELINES

It is now settled that political parties must not act arbitrarily during the selection and nomination of candidates for an election. Thus, they must act within the confines of their constitutions and electoral guidelines and in accordance with the provisions of the Electoral Act; See EZE V. PDP (2019), NWLR (PRT 1652) 1 EMEKA V. OKADIGBO (2021) 18 NWLR (PRT 1331) 55 AND APC V. MARAFA (2020) NWLR (PRT 1721) 383. – Per M. L. Shuaibu, JCA

PROOF – WHO BEARS THE BURDEN OF PROOF IN CIVIL CASES

The law is also settled that in civil cases, the burden of first proving the existence or non – existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being heard presumption that may arise on the pleadings. Therefore, in most cases, the burden of proof lies with or rests on the plaintiff because, he is the person who is making the claim. see OSAWARU V. EZEIRUKA (1978) 6-7, SC 135, ATTORNEY GENERAL, ANAMBRA STATE V. ONUSELOGU (1987) 4 NWLR (PRT 66) AND ARCHIBONG V. ITA (2004) 1 SC (PRT 1) 108 AT 120. – Per M. L. Shuaibu, JCA

SPECULATION – WHETHER A SPECULATION AMOUNTS TO PROOF OF FACTS ASSERTED

In FASHANU V. ADEKOYA (1974) 6 SC 83, it was held that a mere speculative observation cannot be a substitute to proof of fact asserted. – Per M. L. Shuaibu, JCA

PROOF – BURDEN OF PROOF WHERE A CRIME IS ALLEGED IN A CIVIL OR CRIMINAL PROCEEDING

The provisions of Section 134 of the Evidence Act 2011 provides that the burden of proof shall be discharged on the balance of probabilities in all civil proceedings. However the standard of proof where commission of a crime is in issue, it must be proved beyond reasonable doubt. Section 135 of the Evidence Act, 2011 emphatically provides as follows: “135(1). If the commission of a crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt.” – Per M. L. Shuaibu, JCA

ELECTION – STANDARD OF PROOVING FALSIFICATION OF RESULTS IN ELECTION MATTERS

It is pertinent to note here that there are divergent views as regards the standard of proving allegation of facts of falsification of results in election matters and the hitherto general consensus is that mere assertion that figures were falsified is not sufficient to sustain the allegation of falsification and that the standard of proof is not as high as that required for allegation of crime. It is instead based on balance of probabilities. See OMOBORIOWO V. AJASIN (1984) 1 SC 206 AT 227 – 228. However, in BUHARI V. OBASANJO (2005) 13 NWLR (PRT 941), the apex Court has held that manipulation or alteration of election result is a criminal offence and the proof required is high that is, beyond reasonable doubt.

To falsify is to alter so as to make false or to misrepresent or forge which in my view connotes to a crime and thus diverting voting materials to private residence wherein fictitious scores were rolled out qualifies as a criminal allegation. As stated earlier that election matters are not exempted from the law that says that allegation of crime in any proceedings must be proved beyond reasonable doubt. See ADENIGBA & ANOR V. ONWWORARE & ORS (2015) LPELR-40531 (CA). Also in OKE V. MIMIKO(2014) 1 NWLR (PRT 1388) 402 AT 439 it was held that a compilation of illegal voters register for use in any election is a criminal act and as such ought to be proved beyond reasonable doubt. Similarly in AGBAJE V. FASHOLA & ORS (2008) LPELR – 3648 (CA) this Court has held that the allegation of alteration and/or falsification are by their nature imputation of crime and the petitioner was bound to prove them beyond reasonable doubt. – Per M. L. Shuaibu, JCA

FAIR HEARING – MEANING OF FAIR HEARING

As rightly posited that fair hearing is constitutional and fundamental in any judicial system which is rooted in the principle of natural justice that all parties to a cause or matter shall be given equal opportunity of being heard; see INEC V. MUSA (2003) LPELR – 24927 (CA).– Per M. L. Shuaibu, JCA

APPEAL – THE SCOPE OF AN APPEAL

Where parties are given opportunities to be heard, they cannot complain of breach of the fair hearing principle. That apart, this very issue was never an integral part of the Appellant’s reliefs before the lower Court. When a matter goes on appeal, the stopwatch is not adjusted to reset button. Thus, an appeal does not provide a new opportunity for articulating and presenting a fresh and more palatable case. It was severally held that an appeal is a continuation of the original case, only that on appeal, the case is scrutinized by the Appellate Court with a view to determining whether it was correctly decided by the lower Court given the facts and the law. See BANJOKO & ORS V. OGUNLAJA & ORS (2013) LPELR-20373 (CA). – Per M. L. Shuaibu, JCA

CASES CITED

STATUTES REFERRED TO

1. 1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act 2022
3. All Progressives Congress Constitution
4. Federal High Court (Civil Procedure) Rules 2019
5. Evidence Act, 2011

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