⦿ CASE SUMMARY OF:
PDP & Anor. vs. INEC & Ors (2012) – CA
1. Peoples Democratic Party
2. Hon. Oladipupo Olatunde Adebute
1. Independent National Electoral Commission (INEC)
2. Bukunola Taofeek
3. Action Congress Of Nigeria
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Adzira Gana Mshelia, J.C.A
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– R. A. Oluyede, with T. O Amao Esq.
FOR THE RESPONDENT
– Uche V. Obi, with Joseph Kulugh Esq. Gabriel Onajason Esq. for the 1st Respondent.
– Rasaq Okesiji with A. O Kaka Esq. for the 2nd Respondent.
– George Oyeniyi for the 3rd Respondent.
This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal sitting in Abeokuta, Ogun State, delivered on 11th October, 2011 wherein the Appellant’s Petition was dismissed.
The election into the Ikenne/Sagamu/Remo North Federal Constituency, Ogun State was conducted on the 26th April, 2011, when the 2nd respondent contested with the 2nd Petitioner/Appellant as the candidate of the 1st Petitioner/Appellant and 9 other candidates from other Political Parties. At the end of the Election the 1st Respondent declared the 2nd respondent as the winner of the election, having scored the majority of lawful votes cast at the election. The 1st respondent scored 34,144 votes while 2nd Petitioner/Appellant scored 27,553 votes.
The Petitioner being dissatisfied with the declaration presented a joint petition before the Tribunal which was dated and filed same day being 16th May, 2011. Petitioners sought various reliefs.
The grounds of the petition are as follows:
1. The 2nd Respondent did not win a majority of the lawful votes cast at the said election and therefore not duly elected or returned.
2. That the 2nd Respondent was not qualified to contest the election
In response to the petition, 2nd and 3rd respondents filed their respective replies.
After taking final addresses of learned Counsel for the respective parties before it and after considering the totality of the evidence adduced, the Tribunal in a considered judgment dismissed the petition on 11th day of October, 2011.
1. Whether, in the wake of the 1st respondent’s failure to file a reply to the petition, the allegations made against it involving ballot box stuffing, disenfranchisement, people voting several times or multiple voting/over voting, voting without accreditation/non-recording of number of voters on the queue at the Commencement of voting have not been established by the petitioners/appellants?
2. Whether the non-compliance with the provisions of the Electoral Act 2010 (as amended) by the 1st respondent involving the illegal listing of a prominent member of the 1st Petitioner as the candidate of an otherwise unknown party (the PPN) with the substantial effect on the election resulting from the splitting the votes that would have accrued to the 2nd petitioner as the authentic candidate of the 1st petitioner was not established and therefore sufficient ground to nullify the results declared by the 1st respondent; & Whether the 2nd respondent was at that time of the election qualified to contest the election?
3. Whether the rejection by the Tribunal of the ballot papers tendered by the Petitioners is not erroneous and did not occasion a miscarriage of justice?
4. Whether the 2nd respondent won a majority of lawful votes cast at the election even upon the results declared by the 1st respondent?
⦿ HOLDING & RATIO DECIDENDI
1. Issue 1 was resolved in favour of the Respondents.
i. I have carefully gone through their written statements on Oath. None of the three witnesses stated that voters were not allowed to vote let alone to talk of the claim that over two thousand persons were disenfranchised.
ii. It is evident that no voter was called to testify that he was prevented from exercising his constitutional right of picking a candidate of his choice. I agree with the submission of learned counsel to the 1st, 2nd and 3rd respondents that appellants have failed to prove the allegation of disenfranchisement.
iii. Clearly, there is neither oral nor documentary evidence adduced to support the allegation. I hold that appellants have failed to discharge the burden of proof placed on them by law.
iv. PW1 stated in his testimony before the Tribunal that allegations of malpractices were reported to him but he was not there. RW2 did not mention the allegation of voters not being accredited before voting either in written statement on oath nor in his testimony before the Tribunal. PW3 in his written statement on oath stated that in Ikenne Constituency in Ogun State he took part in voting exercise in his ward. He observed that there was no accreditation of voters and people were allowed to vote without accreditation. In his testimony before the Tribunal he said under cross-examination that he went to cast his vote but he was not accredited and was allowed to vote. The respondents maintained that the election was free and fair. It is my humble view that the evidence adduced is not sufficient to prove the non-compliance complained of. No other voter testified that there was no accreditation of voters.
2. Issue 2 was resolved in favour of the Respondents.
i. I agree with the submission of 1st respondent that it cannot be regarded as non-compliance on the part of the 1st respondent in view of the provisions of section 31 of the Electoral Act, 2010 and section 8(10) of the Electoral (Amendment) 2010. It is clear from this provision that 1st respondent has no right to disqualify any candidate. Appellants have failed to prove vote splitting. No voter was called to testify that he was misled to vote for PPN candidate. Appellants complain in my humble view is based on speculation which is unacceptable. A court of law cannot conjecture or speculate. Appellants have failed to prove the alleged compliance on the part of the 1st respondent. Appellants did not state the votes he would have scored had the PPN candidate not participated.
ii. The Tribunals finding cannot be faulted. The appellants did not tender in evidence the INEC FORM CF001 where the 2nd respondent was alleged to have lied on Oath. The appellants also did not tender the alleged Database which was alleged to contain the names of American citizens. The finding of the Tribunal that there is no scintilla of evidence that the 2nd respondent has sworn to any Oath of Allegiance to the United States of America stands.
3. Issue 3 was settled in favour of the Respondents.
i. The proceedings of the Tribunal appearing from pages 433 – 436 of the record clearly showed that the Tribunal rejected the ballot boxes as exhibits on the ground that they were not pleaded and listed as required by paragraph 8(8) of the 1st schedule to the Electoral Act 2010. It is settled law that facts not pleaded goes to no issue. I agree with 2nd respondent’s submission that the facts and circumstances in the case of Ike vs. Enang (supra) are distinguishable from the case at hand. The Tribunal clearly stated on page 436 of the record that their ruling on 18/06/11 to inspect INEC document did not cover a situation, where the documents were not listed and para 4(8) make it mandatory to list all the documents. It is my humble view that the Tribunal rightly rejected the ballot papers as exhibits.
4. Issue 4 was judged in favour of the Respondents.
i. While considering issues , I stated that appellants had failed to prove the allegations of malpractices i.e disenfranchisement, over-voting, ballot box stuffing etc. by cogent and credible evidence adduced before the Tribunal. Therefore the issue of 2nd respondent not scoring the majority of lawful votes cast at the election does not arise. The authenticity and correctness of the result had not been effectively challenged. The result as declared by 1st respondent enjoys presumption of regularity. The theories and issue of deduction and subtraction of invalid votes as stated on the chart are clearly not relevant having regard to the fact that appellants have failed to prove the alleged irregularities and malpractices, which if proved could have affected the result of the election.
Section 31 of the Electoral Act, 2010;
Section 8(10) of the Electoral (Amendment) 2010.
⦿ SOME PROVISIONS
⦿ NOTABLE DICTA
The position of the law is that fact admitted need no further proof. – Adzira Gana Mshelia, J.C.A. Peoples Democratic Party & Anor. vs. Independent National Electoral Commission (INEC) & Ors (2012) – CA
It is trite that in cases where declaratory reliefs are claimed as in the present case and notwithstanding the fact that 1st respondent did not file a reply or call evidence to challenge the appellants’ evidence that failure of the respondent would not relieve the said appellant from satisfying the Tribunal by cogent and reliable proof of evidence in support of his claim or petition. Appellants should succeed on the strength of their own case and not on the weakness of the respondent’s case. – Adzira Gana Mshelia, J.C.A. Peoples Democratic Party & Anor. vs. Independent National Electoral Commission (INEC) & Ors (2012) – CA
In an election petition, where there is allegation of stuffing of ballot boxes, the ballot boxes in which the ballot papers were allegedly stuffed must be tendered before the Tribunal and opened there. It is only when the ballot boxes are tendered before the Tribunal and opened that such allegation is sustainable. – Adzira Gana Mshelia, J.C.A. Peoples Democratic Party & Anor. vs. Independent National Electoral Commission (INEC) & Ors (2012) – CA
A court of law cannot conjecture or speculate. – Adzira Gana Mshelia, J.C.A. Peoples Democratic Party & Anor. vs. Independent National Electoral Commission (INEC) & Ors (2012) – CA
The application of section 66(1)(a) of the 1999 constitution can only become relevant if appellants had established by credible and cogent evidence that 2nd appellant took Oath of Allegiance to the United States of America. As decided in the case of Ogbeide vs. Osula (supra) that dual citizenship does not make a candidate ineligible to contest an election if he is a Nigerian citizen by birth. The complaint of the appellants is therefore unfounded. – Adzira Gana Mshelia, J.C.A. Peoples Democratic Party & Anor. vs. Independent National Electoral Commission (INEC) & Ors (2012) – CA
That admissibility of any document is determined by its relevance to the facts in issue. – Adzira Gana Mshelia, J.C.A. Peoples Democratic Party & Anor. vs. Independent National Electoral Commission (INEC) & Ors (2012) – CA