⦿ CASE SUMMARY OF:
Senator Hope Uzodinma & Anor. v. RT. Hon. Emeka Ihedioha & Ors. (2020) – SC
⦿ LITE HOLDING
When fraud is pleaded it must be proved beyond reasonable doubt.
The issue that a candidate was nominated by two political parties is for the High Court to sit over.
⦿AREA OF LAW
– Constitutional Law
– Electoral Act.
– Election petition.
– Subpoenaed witness.
Senator Hope Uzodinma & Anor
RT. Hon. Emeka Ihedioha & Ors.
(2020) JELR 86967 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENTS
Dr. Onyechi Ikpeazu, SAN.
K.C.O. Njemanze, SAN
Aham Eke Ejelam, SAN
⦿ FACT (as relating to the issues)
The 1st appellant and the 1st respondent were candidates of the 2nd appellant (APC) and the 2nd respondent (PDP) respectively in the Governorship election conducted in Imo State on 8 March 2019 along with 68 other candidates. The 1st respondent was returned as the winner of the election. The 1st appellant was dissatisfied with the return of the 1st respondent and filed a petition challenging the said return on two grounds: (a) The 1st respondent was not validly elected by majority of lawful votes cast and (b) The declaration and return of the 1st respondent is invalid by reason of non- compliance with the Electoral Act. He sought several reliefs including the nullification of the 1st respondent’s return and the declaration of the 1st appellant as the winner of the said election.
It was the appellant’s contention, inter alia, that election held in 27 Local Governments Area, 305 electoral wards and 3,523 polling units. That the 3rd respondent cancelled the election in 252 polling units, collated results from 2,883 polling units and excluded results from 388 polling units. It was the appellants’ contention that they scored an overwhelming majority in the 388 polling units, the result of which was excluded from ward collation result (Forms EC8B). Furthermore, the appellants contend that the total votes due to the appellants but unlawfully excluded from the 388 polling units is 213,695 while the 1st respondent is entitled to 1,903 votes from the same 388 polling units. It was also contended that the 1st respondent was returned based on a wrong computation of votes collated from 2,883 polling units.
The respondent filed replies to the petition, called witnesses and tendered documents in support of their respective positions. After considering written addresses of counsel, the trial Tribunal found no merit in the petition and dismissed it.
Dissatisfied, the appellant appealed to the lower court. In a majority decision of 4:1, the lower court dismissed the appeal on 19 November 2019. The appellants are still dissatisfied and have further appealed to this court.
The parties duly filed and exchanged their respective briefs which were duly adopted and relied upon in support of argument of their positions.
1. The 1st respondent filed a motion on notice on 10 January 2020 seeking to strike out the appeal on the ground that this court had delivered a judgment in SC. 1384/2019: Ugwumba Uche Nwosu v. Action Peoples Party (APP) and Ors, delivered on 20 December 2019 on the nomination of the appellant therein as candidate of two political parties and held that the nomination was invalid, null and void and in violation of section 37 of the Electoral Act, 2010 (as amended). It is the 1st respondent’s contention that the judgment is a judgment in rem and is therefore binding on all parties. That in the instant case, the 2nd appellant also nominated the 1st appellant as its candidate for the same election with the effect that two candidates were projected for the 2nd appellant in the same election.
***MAIN ISSUE FOR APPEAL
1. Given the state of pleadings and the evidence before the lower court, whether the decision of the court below that the appellants did not “prove their allegation that their scores were excluded from collation” was not wrong as a result of a misconception of the appellants’ case?
⦿ RESOLUTION OF ISSUE(S)
[PRELIMINARY OBJECTION: DISMISSED]
1. THE ISSUE ONE OF THE PRELIMINARY OBJECTION WAS RESOLVED AGAINST THE APPLICANT/1ST RESPONDENT BUT IN FAVOUR OF THE RESPONDENT/1ST APPELLANT.
i. I have considered the submissions of learned counsel on either side as contained in their written addresses. My first observation is that the issue raised in the 1st respondent’s application is a fresh issue being raised for the first time in this court without prior leave having been sought and obtained. Failure to seek and obtain the requisite leave renders the issue so raised incompetent. Furthermore, leave to raise a fresh issue is limited to the case of the parties as pleaded, the evidence on record in support of the parties’ contending positions and the judgment of the court in respect thereof. The issue cannot be at large, otherwise it would constitute an instrument of ambush against an opponent.
ii. Furthermore, as rightly submitted by learned counsel for the appellants, the jurisdiction to determine whether or not a party has been validly nominated as candidate in an election is vested in the High Courts.
iii. This court has no original jurisdiction to determine whether an aspirant was properly nominated by his party as a candidate for election. The issue fought between the parties to this appeal at the trial court was on the exclusion of votes scored by the appellants in 388 polling units from ward collation results (Form EC8B) which led to a wrong declaration of the 1st respondent as the winner of the election. The issue of the 1st appellant’s nomination by the 2nd appellant did not arise.
iv. It is for these reasons that I agree with learned counsel for the appellant that the validity of the 1st appellant’s nomination as a candidate of the 2nd appellant for the Governorship election in Imo State is a fresh issue raised for the first time in this court without leave. Furthermore, it is a pre-election matter, in respect of which this court lacks original jurisdiction to determine same in a post-election appeal. The application therefore fails and is accordingly dismissed.
1. THE ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. A careful perusal of the appellants’ pleading reveals that they did not, at any stage challenge the holding of elections in any polling unit. I am of the view that this is crucial. Indeed, their contention was that elections held, they scored votes but their votes were excluded at the collation stage. The need to call the polling unit agents to prove that elections actually held in those polling units did not arise. The authorities of this court requiring the evidence of polling unit agents, polling unit by polling unit, are therefore not applicable in the circumstances. This is more so because the respondents, particularly the 3rd respondent denied excluding the votes scored by the appellants in the affected units. In other words, they did not contend that elections did not take place in the 388 polling units, their contention is that the results relied upon by the appellants are false. That they are not genuine. They pleaded that they would tender the genuine results. Having pleaded that the documents are false, the respondents made allegations of a criminal nature against the appellants. They were required to plead the specific elements of fraud and lead evidence showing the genuine results. Not only must the allegation be proved beyond reasonable doubt, it must also be proved that the appellants personally committed the forgery or aided and abetted the commission of the crime or that they procured the commission of the crime through their agents or officials. It is well settled that mere averment in pleadings do not constitute evidence.
ii. Although they relied heavily on the assertion that exhibits PPP1 – PPP366 were fake, no evidence was adduced to prove the assertion at all, let alone beyond reasonable doubt. The respondent failed to produce the “genuine” results as pleaded.
iii. The tendering of exhibits PPP1 – PPP366 through PW54 was to show that the scores recorded therein were excluded from the forms EC8B (ward collation results). It is also to be reiterated that PW54 was summoned by the court to produce and tender the documents.
His lordship Oho JCA in his dissenting opinion at page 410 Vol. 5 of the record, held: “The police copies are particularly relevant and admissible where, as in this case, the respondents raised the issue of the authenticity of the results in their pleadings. The copies given to the police are in those circumstances relevant and tenable to test the veracity of the parties’ contention on the issue of what in fact transpired.”
I agree with him. The respondents failed to prove that the documents were fake or forged.
iv. In my considered view, the crux of this appeal is whether the lower court and by implication, the trial Tribunal misconstrued the appellants’ case and therefore misplaced the burden of proof. Having regard to the state of the pleadings, I am of the view and I do hold that the burden of proof was misplaced, as a result of which the bulk of the evidence relied upon by the appellants was disregarded by the two lower courts. The evidence of PW11 and PW51 were rejected on the ground that they were unable to prove any anomalies in the 388 polling units. The appellants did not plead or base their claims on any anomalies in the polling units. Their case was that votes lawfully earned were unlawfully excluded from the collation at ward level. The documents relied upon were alleged to be fake or forged but none of the respondents was able to prove forgery. I hold that on a preponderance of evidence, the appellants discharged the burden on them of proving that the results from 388 polling units, which were in their favour, were excluded from the collation of results and that if the excluded votes are added to the results declared in their favour, they would have emerged as the winners of the election.
In the circumstances, I hold that there is merit in this appeal. The appeal is allowed. The judgment of the lower court affirming the judgment of the Governorship Election Tribunal, is hereby set aside. It is FURTHER ORDERED as follows:
1. It is hereby declared that votes due to the appellants (i.e. Sen. Hope Uzodinma and All Progressives Congress) from 388 polling units were wrongly excluded from the score ascribed to them.
2. It is hereby ordered that the appellants’ votes from the 388 polling units unlawfully excluded from the appellants’ score shall be added to the results declared by the 3rd respondent.
3. It is hereby declared that the 1st respondent, Rt. Hon. Emeka Ihedioha was not duly elected by a majority of lawful votes cast at the said election. His return as the Elected Governor of Imo State is hereby declared null and void and accordingly set aside.
4. It is hereby declared that the 1st appellant, Sen. Hope Uzodinma polled a majority of lawful votes cast at the Governorship election held in Imo State on 9 March 2019 and satisfied the mandatory constitutional threshold and spread across the State.
5. It is hereby declared that the 1st appellant, Sen. Hope Uzodinma is the winner of the Governorship election of Imo State held on 9 March 2019.
6. The certificate of return issued to the 1st respondent Rt. Hon. Emeka Ihedioha is hereby withdrawn.
7. It is hereby ordered that a certificate of return shall be issued to the 1st appellant, Sen. Hope Uzodinma forthwith and he should be sworn in as the Governor of Imo State immediately.
CROSS-APPEAL SC. 1470/2019 Rt. Hon. Emeka Ihedioha v. Sen. Uzodinma and 3 Ors. Having regard to the resolution of appeal No. SC. 1463/2019 in favour of the appellants, this cross-appeal is spent. It has become academic and is hereby struck out. Parties to bear their costs.
Section 86(2), 168(1), of the Evidence Act, 2011.
Section 63(3) of the Electoral Act.
⦿ SOME PROVISION(S)
Section 87(9) of the Electoral Act, 2010, as amended, provides: “Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.”
Section 233(1) of the 1999 Constitution, as amended, provides: “The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.”
Paragraph 12(2) of the First Schedule to the Electoral Act, 2010 (as amended), provides: “Where the respondent in an election petition complaining of an undue return and claiming the seat or office for a petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the petitioners.”
⦿ RELEVANT CASE(S)
Bankole and Ors. v. Mejidi Pelu and Ors. (1991) LPELR – 749 (SC) at 36, paragraphs C-F as follows: “The rationale for these principles is the consideration that a trial court is generally required to make primary findings of fact. Where there are such findings by the court of trial, the appellate court will not lightly depart from them. The appellate court relies on the opinion of the court below for its determination of the appeal before it. Besides, the jurisdiction of the court is confined to the correction of the errors of the court from which it hears appeals. It can only do so where the points argued before it consist of allegation of errors made by the court below. In such a circumstance the point must have been raised in the court below, and that court should have expressed its opinion since the appeal is against the judgment of the court below, the appellate court is entitled to the opinion of the court below on every allegation of error raised before it against the judgment of that court.”
In Nnadi v. Ezike (1999) 10 NWLR (Pt. 622) 228 at 238, paragraphs C-E (a decision of the Court of Appeal sitting as the final court at the time) as follows: “Election result forms given to the Police security men cum observers at the polling booths, as dictated by the provisions of paragraph 33 of Schedule 4 to Decree No. 5 of 1999 constitute an internal and inbuilt control mechanism or measures designed to unravel unlawful cancellations, alterations, mutilations and juggling of figures during elections and such result as produce by the police are the best and tenable available source to test the veracity of the parties, contention on the issue of what in fact were the actual scores made by the contending parties. To jettison the forms given to the police under any guise, as in the instant case, is like throwing discretion to the wind.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is settled law that the essence of pleadings is to compel the parties to define accurately and precisely, the issues upon which the case is to be contested in order to avoid the surprise at the trial and to confine the evidence relied upon within the parameters of the facts pleaded. – Kekere-Ekun JSC. Uzodinma v. Ihedioha (2020)
It is also settled law that issues are said to be joined on the pleadings when an averment in an opponent’s pleading has been denied or traversed. The court and the parties are bound by the issues so joined. – Kekere-Ekun JSC. Uzodinma v. Ihedioha (2020)
This court does not lightly set aside concurrent findings of the two lower courts. It will however, disturb those findings where it is satisfied that there is an apparent error on the face of the record of proceedings showing or manifesting that such findings are perverse. A decision is perverse where, for example, it has been shown that the trial court (or the court below) took into account matters which it ought not to have taken into account or where the decision has occasioned a miscarriage of justice. – Kekere-Ekun JSC. Uzodinma v. Ihedioha (2020)
A point to note here is that reliefs sought by the applicants before the Tribunal are declaratory in nature. The significance of this is that in a claim for declaratory reliefs, the appellants/petitioners in this case must succeed on the strength of their own case and not on the weakness of the respondents’ case. They would not be entitled to judgment even on admission. In discharging the burden of proof, the appellants must first prove the existence or non-existence of what they assert by relevant, admissible and credible evidence. Once the burden is discharged, the onus of proof shifts to the respondents. The burden of proof of particular facts continues to shift between the parties until all the issues in the pleading have been dealt with. The onus is on the party against whom judgment would have been given if no further evidence were adduced. – Aji, JSC. Uzodinma v. Ihedioha (2020)
The question then arises as to how an allegation of exclusion of votes is to be proved. In Buhari v. Obasanjo (supra), it was held that where a petitioner contests the legality of votes cast in an election and the subsequent result, he must tender not only the forms and other documents used at the election, he must also call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The onus was on the petitioners who challenged the results to prove same on a preponderance of evidence. – Kekere-Ekun JSC. Uzodinma v. Ihedioha (2020)
With respect to learned senior counsel for the 1st respondent, it is not correct to state that the 1st respondent did not need to comply because the votes credited to him were far higher than the votes credited to the appellants. As regards the 3rd respondent, it failed woefully to tender the results it termed “genuine,” which would have rebutted the presumption of regularity in favour of the documents tendered by the appellants. – Kekere-Ekun JSC. Uzodinma v. Ihedioha (2020)
The question of whether or not the 1st appellant is the candidate of the 2nd appellant for Governorship election conducted in Imo State in 8 March 2019 cannot be answered by this Court. As amply demonstrated in the lead judgment if it is a fresh issue. It was not canvassed in the trial tribunal nor could the lower court have rightly dealt with it. – Ngwuta, JSC. Uzodinma v. Ihedioha (2020)
PW5 admitted that men and relevant material were sent to the 388 polling units for the election. The 3rd respondent (INEC) did not claim diversion of the men and material away from the 388 polling units. The question for 3rd respondent is; what happened to the result in the 388 polling units? If the results presented by the appellants were forged who has the authentic result? The appellants testimony on the exclusion of the 388 polling units, result, in my view remain unchallenged and the Tribunal and the court below should have acted on it. – Ngwuta, JSC. Uzodinma v. Ihedioha (2020)
This appeal was argued this morning, and judgment is being delivered today. My learned brother, Kekere-Ekun JSC, who just delivered the lead judgment, dealt extensively with the issues canvassed by the parties, and I agree entirely with his reasoning and conclusion, which captures the decision of this Court. So, I adopt his reasoning and conclusion as mine and I allow this appeal. I also abide by all the consequential orders he made in the lead judgment. – Augie, JSC. Uzodinma v. Ihedioha (2020)