Any person alleged of crime in election petition must be made a party to the action

AKPOTI & ANOR v. INEC & ORS
CITATION: (2020) LPELR-50174 (CA)

In the Court of Appeal
In the Abuja Judicial Division
Holden at Abuja

ON SATURDAY, 4TH JULY, 2020
Suit No: CA/ABJ/EPT/397/2020

Before Their Lordships:
ADAMU JAURO Justice, Court of Appeal
HARUNA SIMON TSAMMANI Justice, Court of Appeal
ONYEKACHI AJA OTISI Justice, Court of Appeal
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal
MUHAMMED LAWAL SHUAIBU Justice, Court of Appeal

Between

1. NATASHA HADIZA AKPOTI
2. SOCIAL DEMOCRATIC PARTY (SDP) – Appellant(s)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ALL PROGRESSIVES CONGRESS (APC)
3. YAHAYA BELLO
4. EDWARD ONOJA – Respondent(s)

LEADING JUDGMENT DELIVERED BY ONYEKACHI AJA OTISI, J.C.A.
FACTS
This appeal is against the dVecision of the Kogi State Governorship Election Petition Tribunal, which sat in Abuja, delivered on May 18, 2020.The facts of the case are that the 1st appellant, Natasha Hadiza Akpoti, was the candidate of the 2nd appellant, Social Democratic Party, in the Kogi State Governorship Election held on November 16, 2019. The 3rd respondent, Yahaya Bello, was declared the winner of the said election with 406,222 votes while the 1st appellant polled 9,482 votes. Dissatisfied with the said declaration, the appellants presented a petition before the Tribunal.

In the petition, the appellants made allegations of various irregularities that included over voting, alteration of results, violence, intimidation, manipulation of security agencies, intimidation of voters, massive multiple thumb printing of ballot papers and unlawful exclusion. The 1st respondents denied, in its entirety, all the allegations of the petitioners.At the conclusion of hearing, the Tribunal dismissed the petition on the ground that the appellants failed to prove the grounds on which the petition was presented.
Aggrieved, the appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
1. Whether the learned trial Judges of the lower Tribunal were not wrong when they struck out the name of the 4th respondent, despite appellants’ averments and testimony that he submitted forged documents to the 1st respondent and was thus disqualified to contest subject matter 2019 Kogi State Governorship Election.
2. Whether the lower Tribunal was not wrong when it struck out paragraph 3 – 12 of the petitioners’ reply to the 2nd respondent’s reply on the grounds that those paragraphs were repetitive of the petition and lacked basis in law.
3. Whether the lower Tribunal was not wrong when it refused to accord probative value to the uncontroverted testimonies of the entire appellants’ witnesses in proof of their allegations of corrupt practices and non-compliance with the Electoral Act, as required by law.
4. Whether the decision of the lower Tribunal, that the appellants failed to proffer proof that the 3rd & 4th respondents were disqualified from contesting subject matter 2019 Kogi State Governorship Election, was borne out of evidence before the Tribunal.

APPELLANTS’ ARGUMENTS
Arguing issue 1, the appellants contended that the Tribunal made the order striking out the name of the 4th Respondent without a specific prayer for that order by the 3rd and 4th Respondents. Although the Tribunal made an order striking out the name of the 4th Respondent upon considering the Preliminary Objection of the 2nd Respondent, the said Preliminary Objection was dismissed. The Court was urged to hold that the order of the Tribunal striking out the name of the 4th Respondent should be set aside because the Tribunal had no powers to grant a relief not sought in the processes under consideration. See NIDOCCO Ltd v Gbajabiamila (2013) LPELR-20899 (SC); Kalejaiye v LPDC & Anor (2019) LPELR-47035 (SC).

Arguing issue 2, the appellants submitted that the decision of the Tribunal to strike out paragraph 3 – 12 of the petitioners’ reply to the 2nd respondent’s reply was unfounded in law. This is because the said decision was in contravention of Paragraph 53(2) of the First Schedule to the Electoral Act 2010, as amended and the paragraphs were not repetitive of averments contained in the petition.

On issue 3, it was submitted that the appellants need not call polling agents to prove their allegation of non-recording/non-collation of votes as pleaded in the Petition. See Uzodinma v Ihedioha in SC 1462/2019 delivered on January 14, 2020 by the Supreme Court. It was further submitted that the documents were not dumped on the Tribunal as PW3 who tendered them did not give hearsay evidence.

On issue 4, the appellants submitted that the 3rd and 4th respondents presented forged documents to the 1st respondent, contrary to Section 182(1)(i) of the 1999 Constitution, as amended, read in conjunction with Section 182(1)(j) of the said Constitution. The appellants submitted that that the 4th respondent falsely certified that he resigned from Guaranty Trust Bank and Access Bank in INEC Form CF001, whereas he was dismissed from both Banks but concealed the facts by refusing to attach evidence of how he left his last place of employment. See Leadway Ass. Co. Ltd v Zeco Nig. Ltd (2004) LPELR-1773 (SC); Chief Sunday Ogunyade v Solomonn Oluyemi Oshunkeye (2007) LPELR-2355 (SC); Gaji & Ors v Paye (2003) LPELR-1300 (SC), (2003) 8 NWLR (PT 823) 583.

It was further submitted that the 4th respondent had declared a false age in Form CF001. The testimony of PW15 was relied upon which testimony was not controverted. Appellant submitted that the refusal of the Tribunal to attach any weight on the document PW15 tendered on the ground that his identity as a bailiff was not verified was perverse.
The appellants concluded by submitting that in view of these false representations, the 3rd and 4th respondents were disqualified from contesting in the election of November 16, 2019.

RESPONDENTS’ ARGUMENTS
On issue 1, the respondents argued that a look at the record of appeal would reveal that they explicitly sought for an order striking out the name of the 4th respondent. It was further argued that assuming without conceding that they did not ask for such relief, having raised the point with the parties joining issues thereon and the Tribunal agreeing that the 4th respondent was not a necessary party, the Tribunal was right to have granted the order striking out the name of the 4th respondent as a consequential order. The said order could not therefore be described as an unsolicited or gratuitous relief granted by the Tribunal. See Awoniyi & Ors v The Registered Trustees of the Rosicrucian Order, AMORC (Nigeria) (2000) LPELR -655(SC); Orji v Zaria Industries Ltd (1992) LPELR-2768 (SC).

On issue 2, the 2nd respondent submitted that the petitioners’ reply was a complete rehash of the petition and in violation of Paragraph 16(1)(a) and (b) of the First Schedule to the Electoral Act and thus rightly struck out by the Tribunal. See Okey Ikoro v Osita Izunaso & Ors (2008) LPELR-4302 (CA).
On the contention that the 2nd respondent had not filed the application timeously and before taking a fresh step, it was submitted that the 2nd respondent brought the application within a reasonable time and that the filing of answers to the pre-hearing notice does not amount to taking a fresh step.

On issue 3, the respondents submitted that the allegations of the appellants, in addition to being vague and baseless, remained unproven by the appellants. The evidence of the main witness, PW3, was described as unsubstantiated, speculative and hearsay. That the documents PW3 tendered were not made by him. Without calling their makers, the documents have no probative value.

On issue 4, the 1st Respondent submitted that the Appellants failed to substantiate the allegations against the 4th Respondent and that the decisions relied on by the Appellants were inapplicable. The 2nd, 3rd and 4th Respondents argued that the Appellants did not prove that the 3rd Respondent failed to meet the constitutional demands of Section 177 of the 1999 Constitution. See Shinkafi & Anor v. Yari & Ors (2016) LPELR-26050 (SC). It was further submitted that a complaint that false information was supplied by a candidate in Form CF001 should be challenged before a Federal/State or FCT High Court within 14 days from the date of publication, failing which the action would be statute barred. See Section 138 (1)(e) of the Electoral Act, 2010 and Atiku Abubakar & Anor v INEC & 2 Ors SC/1211/2019 (Unreported).

RESOLUTION OF THE ISSUES
On the 1st issue, the Court noted that the preliminary objection was raised on the ground that the 4th respondent was not a statutory respondent recognized under Section 137 of the Electoral Act 2010, as amended. The Court agreed with the submission of the respondents that even if they did not specifically seek the relief of having the name of the 4th respondent struck out, having raised the point and the parties joined issues thereon and with the Tribunal agreeing with the submissions of the respondents, the order striking out the name of the 4th respondent could be granted as a consequential order. ​Going further, the Court held that although the 4th respondent, a Deputy Governorship candidate, is not a recognized respondent to an election petition under the Electoral Act, there were specific allegations, which were of criminal nature made against the 4th respondent personally. The recognized statutory respondents were not the proper persons to respond to such allegations on behalf of the 4th respondent. That where allegations are made against a specific person, that person ought to be joined in the action. See Omoboriowo & Ors v. Ajasin (1984) LPELR-2643(SC); Nyesom Wike v Peterside (2016) LPELR-40036(SC); Bello v INEC (2010) LPELR-767(SC); Azuh v Union Bank (2014) LPELR-22913(SC). The name of the 4th respondent ought not to have been struck out by the trial tribunal.

Notwithstanding the decision of the Court above, the Court declined to make an order setting aside the decision of the Tribunal striking out the name of the 4th respondent because he will be unable to respond to any of the allegations made against him as the lifespan of the petition had long expired.

Resolving issue 2, the Court reproduced the provision of Paragraph 16 (1)(a) and (b) of the First Schedule to the Electoral Act, which prohibits the raising of new issues in a reply. After considering the record of appeal, the Court held that the reply, which introduced the judgment of the Court of Appeal in CA/A/1123/2019 delivered on December 19, 2019, which upheld the decision in FHC/ABJ/CS/1129/2019, was a rehash of facts already pleaded. 

On the contention that the application was not filed timeously, the Court agreed with the 2nd respondent that the application was brought within reasonable time and that the filing of answers to the pre- hearing notice does not amount to taking a fresh step.

On issue 3, the Court considered the record of appeal and came to the conclusion that the evidence of PW3 was replete with contradictions, absurdities and was totally unhelpful in proving the petition. That the documentary evidence he tendered was also unhelpful in advancing the case of the appellants because the law is settled that only the maker of a document or a person who has personal knowledge of its contents can give any admissible evidence on it. See Buhari v Obasanjo (2005) LPELR-815(SC); INEC v Adeleke (2019) LPELR-47545(CA); Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC); Belgore v. Ahmed (2013) 8 NWLR (PT. 1355) 60 at 100.

Going further, the Court held that the evidence of PW4 – PW13 who testified on corrupt practices and violence was discredited under cross-examination. For example, PW5 who admitted not being able to read and write had his statement made in English Language without a jurat. His statement was thus unreliable. See Gundiri v Nyako (2014) 2 NWLR (1391) 211.

Concluding on the issue, the Court held that a petitioner in an election petition had the burden to prove that there had been non-compliance with the provisions of the Electoral Act and the non-compliance was such that result of the election had been affected. This is because the results certified by the election officials are presumed to be correct.

Thus the burden is on the petitioner to rebut this presumption with credible, cogent and admissible evidence. See CPC v INEC (2011) LPELR-8257 (SC). In discharging the burden, he must rely on the strength of his own case and not on the weakness of the defence, except where such evidence of the defence manifestly supports his case. See Ajibulu v. Ajayi (2013) LPELR-21860 (SC); Akande v. Adisa & Anor (2012) LPELR-7807 (SC). He must prove that he is entitled to the declarations sought because the Court does not make declarations of right either on mere admissions or in default of defence. See Dumez Nigeria Ltd v Nwakhoba (2008) 18 NWLR (PT 1119) 361, (2008) LPELR-965(SC); Akaninwo & Ors v. Nsirim & Ors (2008) LPELR-321(SC); Amaechi v. INEC & Ors (2008) LPELR-446(SC). That however, the petitioner failed to discharge the burden of proof and was thus not entitled to the reliefs sought.

On issue 4, the Court held that where it is alleged that a person is or was not qualified to contest election to the office of Governor as envisaged by Section 138(a)(i) of the Electoral Act, it is Sections 177 and 182 of the 1999 Constitution as amended that are being contemplated. A candidate cannot be said to be unqualified to contest the election outside of these provisions. See PDP v INEC (2014) LPELR-23808 (SC); Kubor & Anor v. Dickson & Ors (2012) LPELR-9817 (SC). Thus even if the allegation that the 4th respondent rendered a false statement was proved, which the appellant failed to do, in order to be relevant to his qualification or disqualification, it must relate to a qualifying or disqualifying factor by virtue of the Constitution of the Federal Republic of Nigeria. The Court held that the Tribunal was right to hold that the history of the banking career of the 4th respondent had no bearing on or connection with the provisions of the 1999 Constitution, as amended.

HELD
In conclusion, the Court resolved all the issues against the appellant and dismissed the appeal.
APPEARANCES
Ola Olanipekun, SAN, with him, Reuben Egwuaba, Esq., – for Appellants
Onyoche Lawani, Esq., A.U.S. Oguajamma, Esq., and Hassan Sherif, Esq.
Dr. Alex Izinyon, SAN, with him, C.S. Ekeocha, Esq., – for 1st Respondent
K.O. Omoruan, Esq., F.O. Izinyon, Esq., and Miss O.A. Ibadin
Ahmed Raji, SAN, with him, M.A. Abubakar, Esq., – for the 2nd Respondent
Abdulwahab Muhammad, Wale Balogun, Esq., and Zekeri Garuba, Esq.
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