POLYCARP ASUQUO EFFIOM Appellants v 1. DANIEL EFFIONG ASUQUO & 3 OTHERS (CA/C/NAEA/248/2011) [2011] NGCA 1 (17 November 2011)

In The Court of Appeal

(Calabar Judicial Division)

On Thursday, the 17th day of November, 2011

Suit No: CA/C/NAEA/248/2011

Before Their Lordships

 Between

 And

ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the National and State House of Assembly Election Tribunal Holden at Calabar (hereinafter called the Tribunal) delivered on 29th September, 2011 in respect of Election Petition No. EPT/CR/NA/1/2011, filed by the appellant as a result of his dissatisfaction with the result of the election conducted by the 2nd and 3rd respondents for the House of Representative seat of Akampa/Biase Federal constituency on 9th April, 2011.

The appellant, the 1st respondent and other persons not involved in this appeal contested the election. The appellant was the candidate of the Action congress of Nigeria while the 1st respondent carried the banner of the peoples Democratic Party, and at the conclusion of the election, the 3rd respondent declared the 1st respondent as the winner of the election with 40,252 votes while the appellant was credited with 7,068 votes. The result also showed that other candidates at the election, Mr. Owai Andy Ewelu of the Labour party had 416 votes; Mr. Peter Ajamba of ANIPP scored 353 votes while Mr. Akor Isaac Eghiaruwa of the DFPF had a total of 342 votes. The 3rd respondent therefore announced the 1st respondent as the candidate that was duly returned.

The appellant who felt dissatisfied with the outcome of the election and the return of the 1st respondent filed Election Petition No. EPT/CR/NA/1/2011 at the Tribunal on 28th April, 2011, on the following grounds as stated in paragraphs 38 to 40 of the petition:

"38. The election was invalid by reason of non-compliance the provisions of will Electoral Act 2010 as amended.

39. The 1st respondent was at the time of the election not qualified to contest the election. 

44. The petitioner scored the highest number of lawful votes cast but the 1st respondent was declared the winner."

The Petitioner then sought the following reliefs:

A declaration that the election into the House of Representatives for Akampa and Biase Federal Constituency held on 9th April, 2011 was invalid by reason of non-compliance with the provisions of Electoral Act 2010 as amended.

b. A declaration that the election into the House of Representatives for Akampa and Biase Federal Constituency held on 9th April, 2011 is null and void.

c. An order that a fresh election be conducted into Akampa and Biase Federal Constituency.

d. A declaration that the 1st Respondent was not qualified to contest election into the House of Representatives for Akampa and Biase Federal Constituency.

IN THE ALTERNATIVE

a. A declaration that the petitioner scored the highest number of votes cast in election held on 9th April, 2011 in Akampa and Biase Federal Constituency.

b. A declaration that the petitioner was validly elected in election held on 9th April 2011 in Akampa and Biase Federal Constituency.

c. An order directing the 3rd respondent to issue a Certificate of Return to the petitioner for the election held on 9th April, 2011 in Akampa and Biase Federal Constituency."

See pages 4-5 of the record of appeal.

The petition was served on the parties and the 1st respondent filed a reply on 15th July, 2011 upon the order of the Tribunal extending the time to do so. The 2nd 3rd and 4th respondents however did not file any reply to the petition, their prayers for enlargement of time having been refused by the Tribunal. The petitioner filed a reply to the 1st respondent's reply on 23rd July 2011 and the hearing of the petition commenced on 4th August, 2011. The petitioner testified as PW1 and called two witnesses as PW2 and PW3 while the respondents did not call any witness, but all the parties submitted written addresses which were adopted on 6th September, 2011, after which the Tribunal adjourned for judgment that was delivered on 29th September, 2011 dismissing the petition. See pages 852-8 62 of the record of appeal.

The Tribunal had held as follows inter alia at page 861;

"The burden of proven an election petition is on after, and not before, the petitioner discharges that burden. This is so even where the respondents have not proffered any defence to the petition. The discharge of that burden is done by leading credible evidence in support of pleadings and no matter how well couched pleadings are and however brilliant the submissions of counsel may be they cannot constitution (sic) substitutes to evidence."

And concluding the judgment on page 852, the Tribunal held that: 

"This petition is bereft of any evidence from the initiator of the proceedings, the petitioner which would warrant the court to call upon the respondents to put up a defence. Where evidence, which is the backbone of a trial is completely lacking as in the instant petition, the petition is doomed for failure." 

The appellant felt aggrieved by the judgment of the Tribunal and filed his Notice of Appeal on 11/10/2011 with four grounds of appeal, and in the Appellant's Brief of Argument filed on 21st October, 2011, the appellant's learned counsel, William Ballantyne Esq. formulated a lone issue for determination at page 11 as follows:

"Whether having regard to the provisions of the Electoral Act 2010 (-as amended) and other extant laws, the trial Tribunal did not breach the right to fair hearing of the appellant when it held that the petition had no evidence to support it as it was not accompanied by valid witness statement on oath. This issue is distilled from grounds 1 and 2 of the Notice of Appeal." 

The 1st respondent filed a brief of argument on 25th October, 2011 wherein the learned counsel, Mba E. Ekweni Esq. adopted the above issue raised by the appellant "with slight modification" as follows:

"Whether taking into consideration the circumstances of the petition, the relevant provisions of the Electoral Act, 2010 (as amended) and such other relevant laws, the lower tribunal breached the Appellant's right to fair hearing when it dismissed the petition for lack of evidence?''

In "the 2nd and 3rd Respondents Brief of Argument" filed on 27th October, 2011, and settled by clement Owuenwunor Esq. of counsel, two issues were distilled as follows:

1. Whether the appellant can challenge an interlocutory ruling of the lower Tribunal in an appeal against final judgment without leave of this court.

2. Whether the dismissal of the appellant's petition for want of evidence amounts to a breach of right to fair hearing." 

4th respondent's learned counsel, Nella Andem-Ewa, SAN formulated the following issue for hearing in the brief of argument filed on 25/10/2011:

"whether the Appellant can complain that his right to fair hearing was breached after failing to appeal against the ruling of the Tribunal, dismissing witnesses 2-3 but proceeded to apply for additional witnesses to testify on his behalf."

At the hearing of this appeal on 14th November, 2011, the learned counsel for the appellant, the 1st, the 2nd and 3rd and 4th respondents adopted their respective Briefs of Argument and urged that this appeal be allowed (appellant) or dismissed (respondents).

In addition to his argument in the Brief, the learned counsel for appellant, argued orally that Section 285 of the Constitution of the Federal Republic of Nigeria had been altered, the effect of which alteration is that Election Tribunals now have jurisdiction over all matters whether pre or post election. He referred also to Section 228 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as Sections 138 and 87 (9) of Electoral Act 2010 (as amended). 

In his oral argument, learned counsel for the 1st respondent opined that Section 87 (10) of Electoral Act, 2010 (as amended) has clearly provided that the venue for ventilation of any complaint relating to pre-election matters particularly nomination of candidates is not the Election Tribunal. He submitted that parties are bound by their pleadings and facts admitted do not require further proof as laid down in Section 75 of Evidence Act. He said the 1st respondent had joined issues with the appellant in respect of his (appellant's) averments in paragraphs 2-7 of his petition, and invocation of Sections 285, 228 of the Constitution and/or Section 138 of the Electoral Act 2010 (as amended) will be unnecessary in the circumstances of this case. 

The argument of the appellant's learned counsel in his Brief of Argument in relation to the lone issue raised therein is that the petition complied with the provisions of paragraph 5 (1) (b) of the 1st Schedule to the Electoral Act 2010 (as amended), in that written statements on oath of the witnesses were annexed thereto, and the appellant's witnesses properly adopted their written statements on oath which therefore became evidence before the Tribunal. He cited the cases of Udeagha vs. Omegara (2010) 11 NWLR (Pt.1204) 195; Aregbesola vs. Oyinlola (2011) 9 NWLR (pt.1253) 565.

The learned counsel then argued thus at page 13 (3.4): 

"Was the right of fair hearing of the appellant then breached by the trial Tribunal when it failed to ascribe probative value to the evidence adduced by the appellants' witnesses?

The constitutional provision of fair hearing simply requires that parries be heard before a judgment is delivered against them. The appellant was effectively cut out of the judgment seat when the trial Tribunal by its refusal to ascribe any probative value to the evidence adduced by the appellant in proof of his petition. (sic).

Still under this lone issue, the appellant argued that this is a case in which this court should assume jurisdiction as a court of first instance pursuant to Section 15 of the Court of Appeal Act and determine this appeal on its merit. 

According to the learned counsel, the appellant had contended that the 1st respondent was not sponsored by a political party for the election now in contention, and submitted that election is a process and not an event, citing Olrakim & Anor vs. Agbaso & Ors (2010) 6-7 SC 85, and Section 65 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He cited also the provisions of Section 87 of the Electoral Act 2010(as amended) to support his argument that the 1st respondent was not nominated by the 4th respondent to contest the election. This fact of the 1st respondent not being validly nominated by the 4th respondent to contest the election was pleaded in paragraphs of the petition which averments the 1st respondent did not deny or in any way contradict. He submitted, on the authority of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) 1 that the burden of proof on the pleadings is on the party, whether plaintiff or defendant who substantially asserts the affirmative of an issue.

The issue of qualification was also argued by the appellant who submitted that the time to challenge the qualification of a presidential candidate as held in Obasanjo vs. Yusuf (2004) 5 SC (Pt. 1) 27 is after the conduct of the election and announcement of the result.

The appellant also contended that the election he had challenged was invalid by reason of non-compliance with the provisions of Electoral Act 2010 (as amended). This he said he had pleaded in the negative and the burden thereby shifted on the respondents to plead the constitutive activities that will establish without doubt that the elections were conducted in substantial compliance with the provisions of Electoral Act 2010 as amended but the respondents failed to do so.

On the allegations made by the appellant in the petition which were criminal in nature, the learned counsel argued that the court is empowered to severe the criminal averments and deal with the petition on the basis of the surviving averments where the surviving averments can still sustain a ground of the petition, citing Ogboru vs. Uduaghan (2011) 2 NWLR (Pt. 1232) 604;Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253).

The appellant finally contended that in the likely event that this court nullifies the votes recorded for the 1st respondent on account that he was not qualified to contest the election, the lawful votes cast in the elections will be as follows:

"a.     ACN        -    7,068 votes

b.    LP       -    416 votes

c.     CPC       -    342 votes

d.    (sic) ANPP    -    355 votes

f.    PDP       -    Nil 

He urged this court to hold that the appellant scored the highest number of lawful votes cast in the election. 

In his own argument, the learned counsel for first respondent submitted that no issue had been formulated from Ground 3 of the appeal which he urged this court to strike out as abandoned, citing Sunday vs. INBC (2009) 12 NWLR (Pt.1154) 194; Alfred vs. Yakubu (2009) 6 NWLR (Pt. 138) 493.

The learned counsel argued that the period of 21 days within which the appellant can complain against the interlocutory ruling of 4th August, 2011 had since passed and the court should discountenance any argument thereon, citing NEPA vs. Eze (2001) 3 NWLR (Pt. 701) 606; Ogigie vs. Obiyan (1997) 10 NWLR (Pt. 524) 179;Abiola vs. Olawoye (2006) 12 NWLR (Pt. 996) Maduako vs. Onyejiocha (2009) 5 NWLR (Pt.1134) 259. He submitted that it was the appellant that called three witnesses and ended his case and so cannot complain of lack of fair hearing and cannot assert that the petitioner proved the petition by adducing credible evidence since no evidence was placed on record by the appellant in support of his averments in the petition. He submitted that pleadings do not constitute evidence, and cited Kuti vs. Alashe (2005) 17 NWLR (Pt.955) 625; Osigwelem vs. INEC (2011) 9 NWLR (Pt. 1253) 425.

According to learned counsel, the law is that it is he who asserts that bears the burden of proving what he has asserted as settled by Section 135 of Evidence Act Cap. E 14 Laws of the Federation of Nigeria, 2004. He contended that the appellant failed to lead evidence in support of the petition and so failed to proof the same, the effect of which is that the petition was rightly dismissed, citing Imana vs. Robinson (1979) 3 & 4 SC1.

The rule of fair hearing as submitted by the learned counsel on the authority of Kotoye vs. CBN (1939) All NLR 76 is not a technical doctrine but one of substance and does not envisage a standard of justice that is biased in favour of one bf the parties, but one that enjoins the court to be fair to both parties to a dispute. 

On the powers of the Court of Appeal under Section 15 of the Court of Appeal Act, 2004, the learned counsel submitted that an appeal is a rehearing of the case at the trial court as shown on the printed record. It is a review and reassessment of what transpired at the trial court and not an opportunity for the parties to repair their case, or introduce what did not take place at the trial court, citing Mafirnisebi vs. Ehuwa (2007) 2 NWLR (Pt.1018) 385;Adams vs. Umar (2010) All FWLR (Pt. 513) 1289).

The learned counsel contended that the issues raised and argued by the appellant outside the issue formulated did not emanate from evidence before the Tribunal and should be struck out. He submitted that arguments in an appeal cannot be at large but must relate and confined to the issues formulated from the grounds of appeal which must in turn relate to the ratio decidendi of the judgment appealed against, citing NNPC vs. Klifco (Nig) Ltd (2011) 10 NWLR (pt. 1255) 209; VINZ Int'l (Nig) Ltd. Vs. Morohundiya (2009) 11 NWLR (Pt. 1153) 562. 

On the nomination of the 1st respondent by the 4th respondent, the learned counsel submitted that the appellant, a member of a different political party does not have the locus standi to complain as it is entirely an internal affair of the 4th respondent over which a non-member cannot complain, citing Kolawole vs. Foluso (2009) 50 WRN 68; Zaranda vs. Tilde (2008) 10 NWLR (Pt. 1094) 184. 

On the issue of locus standi, the learned counsel cited the following cases: Adesanya vs. President, Federal Republic of Nigeria (2) (1981) 2 SCNLR 358; Thomas vs. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Attorney General of Lagos state vs. Eko Hotel Ltd. (2006) 18 NWLR (pt. 1011) 378; Iwara vs. Itam (2009 17 NWLR (pt. 1170) 337.

The jurisdiction of an Election Tribunal, according to learned counsel is as stated in Section 285 (1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and does not cover matters that took place before elections - were held-Doukpolagha vs. George (1992)4 NWLR (pt. 236) 444; Obi-odu vs. Duke (2006) All FWLR (Pt. 337) 537; Jang vs. Dariye (2003) 15 NWLR (pt.843) 459. Enayi vs. Ihuwa (1992) 3 NWLR (pt. 231)548.

He referred to the pleadings of the appellant in paragraphs 2 and 5 at page 1 of the petition to the effect that the 1st respondent was the candidate duly nominated and sponsored by the 4th respondent. He contended that parties are bound by their pleadings, and in the face of those averments the appellant can no longer contest the nomination and sponsorship of the 1st respondent by the 4th respondent to contest the election.

The 2nd and 3rd respondents had in their Brief of Argument submitted that since the appellant did not appeal against the interlocutory decision of the Tribunal by which the written statements on oath of the witnesses were struck out, he cannot incorporate complaints thereon in his final appeal except with the leave of this court since the period allowed for appeals is, by virtue of paragraph 6 of Election Tribunal and Court Practice Directions, 2011 days or 14 days under section 24 (2) (a) of the court of Appeal Act, 2004 which has since lapsed.

The procedure to be