How a petitioner can question lawfulness of votes cast at the polls/election result
Fijabi & Anor v. INEC & ors (2019) LPELR-48660 (CA)
In the Court of Appeal
In the Ibadan Judicial Division
Holden at Ibadan
ON MONDAY, 14TH OCTOBER, 2019
Suit No: CA/IB/EPT/OY/REP/11/2019
Before Their Lordships
JIMI OLUKAYODE BADA, JCA
NONYEREM OKORONKWO, JCA
FOLASADE AYODEJI OJO, JCA
1. HON. SAHEED AKINADE FIJABI
2. ALL PROGRESSIVES CONGRESS (APC)
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. HON. OLAJIDE A. STANLEY
LEAD JUDGMENT DELIVERED BY JIMI OLUKAYODE BADA, J.C.A.
FACTS OF THE CASE
The 1st and 2nd appellants were respectively the candidates and the sponsoring Political Party in the Election of 23rd February 2019 into the House of Representatives for the Ibadan South West/Ibadan Northwest Federal Constituency. At the end of the Election, the 1st Respondent declared the 3rd Respondent who was the candidate sponsored by the 2nd Respondent as the winner and he was thus returned. At the National and State House of Assembly Election Petition Tribunal, holden at Ibadan, Oyo State, the Appellants challenged the said return of the 3rd Respondent on the sole ground that he was not duly elected by majority of the lawful votes cast at the election and that the election was characterized by various forms of irregularities, substantial non-compliance, over-voting, disenfranchisement, erroneous collation of results, manipulation and arbitrary allocation of figures, erroneous or wrong figures by agents/officials of the 1st Respondent in favour of the 2nd and 3rd Respondents. At the conclusion of the hearing, the trial Tribunal in a judgment delivered on 16th August 2019 refused the prayers of the Appellants and dismissed the Petition in its entirety.
The Appellants who were dissatisfied with the judgment of the Tribunal appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the issues formulated by the Appellant as follows:
“(1) Whether the lower Tribunal was right to have refused to evaluate the documentary evidence tendered as Exhibits by the Appellants before dismissing the petition which if considered proved the case of the Appellant.
(2) Whether having regard to the pleadings and evidence adduced the Appellants have not proved their case to entitle them to reliefs sought in the petition.”
APPELLANT’S COUNSEL SUBMISSION
Arguing issue 1, it was contended that the Appellants in proof of specific allegations in the petition called the supervisory and collation Agents in respect of all the Wards, gave evidence and tendered Form EC8A (II) in respect of both disputed polling units and undisputed polling units. It was also stated that the Appellants witnesses who are both Supervisory and Ward Agents gave evidence of what transpired at 81 polling units and 37 voting points of Ward 012 as eyewitnesses. It was further contended on behalf of the Appellants that elections were free and fair in all the Wards except Ward 012 where he complained that no proper election took place. It was argued that the position of the Tribunal that only the makers of a document can tender them otherwise it becomes documentary hearsay does not represent the correct position of the law. Learned Counsel for the Appellants submitted that the Tribunal failed in its duty to evaluate the evidence already before the Tribunal. He relied upon the case of ARABAMBI VS.
ADVANCE BEVERAGES INDUSTRY LTD. (2005) 19 NWLR PART 959 PAGE 9 AT 31, (2005) LPELR-529 (SC).
On issue 2, the learned Counsel for the Appellants stated that the complaint of the Appellants is simply rooted in the unlawfulness of votes as it relates to the entries made in column 7 of the Form EC8A (II) as total valid votes which entries are not correct when the total votes cast and recorded against each of the political parties that contested election are calculated. It was contended that the 1st Respondent has failed to justify the purported correction of error at the collation centre. He went further that the petition is challenging the lawfulness votes leading to the victory and return of the 3rd Respondent as the candidate of the 2nd Respondent in the Election under reference. It was submitted that the end result of the complaints of the Appellants in this petition knocks at the very foundation of the return of the 3rd Respondent as the winner of the election. The learned Counsel for the Appellants stated that there has been no allegation of or proof of forgery against any of the electoral documents tendered by the Appellants. The cumulative effect of the foregoing is that the Tribunal without much ado is entitled to rely on the said documents in resolving the issue of the unlawfulness of votes raised in the petition.
RESPONDENTS COUNSEL SUBMISSION
The learned Counsel for the 1st Respondent submitted that the issue canvassed by the Appellants is the fact that the Tribunal failed and or refused to evaluate the documentary Exhibits by the Appellants before dismissing the petition. But on the contrary, the learned Counsel for the 1st Respondent submitted that the documentary evidence led was considered before the Tribunal arrived at its decision. It was submitted that the testimonies of Appellants’ witnesses at the Tribunal i.e. PW1-PW31 none of them was a unit agent, thus all documents tendered were tendered by non-makers who did not participate in making them.
On issue 2, learned Counsel for the 1st Respondent submitted that it is one thing to make an allegation but it is another thing to be able to establish and substantiate the allegation in a Court of law. He relied on NYESOM VS. PETERSIDE (2016) 7 NWLR PART 1512 PAGE 452 AT 520 PARAGRAPH C-F, (2016) LPELR-40036 (SC). It was submitted on behalf of the 1st Respondent that the Tribunal was right when it held that the Appellants as Petitioner did not discharge the burden of proof placed on them.
RESOLUTION OF ISSUES
Determining the issue 1, the Court stated the position of the law that a Court of law can only act and pronounce judgment based on credible evidence presented and properly established before it and it is not the duty of the Court to search for extraneous evidence in favour of any party. The Court held that as rightly observed by the Tribunal in its judgment from the evidence presented, none of the witnesses called by the Appellants at the Tribunal i.e. PW1 to PW31 was a unit agent.
Therefore, all the documents tendered by the Appellants were tendered by non-makers or persons who did not participate in making them. The documents tendered by the Appellants are therefore documentary hearsay. See OKONJI & 2 OTHERS VS. NJOKANMA & 2 OTHERS (1999) 14 NWLR PART 638 PAGE 250, (1999) LPELR-2477 (SC); BUHARI VS. OBASANJO (2005) 13 NWLR PART 941 PAGE 1 AT 177, (2005) LPELR-815 (SC). The Court emphasized the importance of polling agents at the polling units/stations as being the eyes of the Petitioners, which was restated more recently by the apex Court in GUNDIRI & ANOR. V. NYAKO & ORS (2014) 2 NWLR PART 1391 PAGE 211 AT 245; (2012) LPELR-15524 (SC), where it was held thus:-
“The significance of the polling unit agents cannot, therefore, be underestimated in the case at hand if the Appellant must have the facts to prove their case. The best evidence the Appellant could have had was that of the agents at the polling units who were physically on the ground and in a true position to testify as to what transpired at the election. The consequence of shutting them out for whatever reason is very detrimental to the Appellants case. See – HASHIDU VS. GOJE (2003) 15 NWLR PART 843 PAGE 352 AND BUHARI VS. OBASANJO (2005) ALL FWLR PART 373 AT 164 – 165.”
In view of the foregoing, issue No. 1 was thereby resolved in favour of the Respondents and against the Appellants.
Resolving issue 2, the Court held that it is trite law that the election results declared by the Independent National Electoral Commission (INEC) are prima facie correct and the onus is on the Appellants who were the petitioners to prove the contrary. In cases of this nature, which is declaratory, the petitioners are to succeed on the strength of their case and not on the weakness of the Respondents’ case. See AWUSE VS. ODILI (2005) ALL FWLR PART 226 PAGE 248; WOLUCHEM VS. GUDI (1981) 5 S.C. PAGE 291, (1981) LPELR-3501 (SC); ADIGHIJE VS. NWAOGU (2010) 12 NWLR PART 1120 PAGE 419 AT 462 PARAGRAPHS A –B, (2010) LPELR-4941 (CA).
The Court noted that a careful examination of the relief sought by the Appellants showed that it is declaratory in nature. There is, therefore, no escape route for the Appellants, the burden is on them to succeed on the strength of their own case and not on the weakness of the Respondent’s case. The Court noted further that the Tribunal was right when it held that the Appellants did not establish any of the four ingredients of over-voting and therefore did not discharge the burden of proof placed upon them.
Also in order to prove disenfranchisement, the Court held that the Court would be satisfied when such voters give clear evidence that they were registered for the election but were not given the opportunity to cast their votes. Such voters must tender in evidence their respective voters’ cards and register of voters from each affected polling unit to confirm the allegation of disenfranchisement. And most important is the need for such disenfranchised voters to give evidence to show that if they had been given the opportunity to vote, the candidate of the political party of their choice would have won the election. See UCHA & ANOR VS. ELECHI & 2 OTHERS (2012) 13 NWLR PART 1317 PAGE 330, (2012) LPELR-8429 (CA). In the instant case, the Court noted that none of the voters who claimed to have been disenfranchised tendered their voters’ registers for the affected units and so the Tribunal was therefore right when it held that the Petitioners failed to establish or prove disenfranchisement.
Furthermore, the Court held that allegations contained in the Petition which range from the entry of wrong results into various result sheets, over-voting, manipulation, arbitrary allocation of figures are acts which are criminal in nature which by law must be proved beyond a reasonable doubt. See NYESOM VS. PETERSIDE (2016) 7 NWLR PART 1512 PAGE 452 AT 520 PARAGRAPH C-F, (2016) LPELR-40036 (SC); ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR PART 1120 PAGE 1 AT 143; (2008) LPELR-51 (SC). Consequent upon the foregoing, issue 2 was thereby resolved in favour of the Respondents and against the Appellants.
With the resolution of the two issues in the appeal against the Appellants, the Court held that the appeal lacks merit and it was thereby dismissed.
Mr. Sikiru Adewoye with him, P.A. Fakoya, Esq.,
Mr. R. Olabisi, Esq. and T.S. Abdulazeez
Mr. P.O. Kuye with him, Mrs. F.O. Ajiboye
-For 1st Respondent
Mr. Adewale Adegoke with him, Suleiman Olaiya, Esq.,
-For 2nd Respondent
Akeem Olaniyan, Esq. and Chiamaka Okereafor
Mr. Yusuf O. Ogunrinde
-For 3rd Respondent
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