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Whether wrong heading of an election petition properly filed at tribunal registry affects its jurisdiction to determine same

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MR. OKABA KELVIN PREYE & ANOR v. HON. PREYOR OBORO & ORS (2019) LPELR-48805(CA)

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

On Saturday, 9th November, 2019
Suit No: CA/B/EPT/20/2019

Before Their Lordships:

HARUNA SIMON TSAMMANI, JCA
SAMUEL CHUKWUDUMEBI OSEJI, JCA
BIOBELE ABRAHAM GEORGEWILL, JCA

Between

1. MR. OKABA KELVIN PREYE
2. ALL PROGRESSIVE CONGRESS (APC) -——Appellant(s)

And

1. HON. PREYOR OBORO
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION -Respondent(s)

LEAD JUDGMENT DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, J.C.A.

FACTS OF THE CASE
This appeal is against the judgment of the National and State Houses of Assembly Election Tribunal, Delta State, sitting in Asaba, Delta State.

The facts of the case are that the 1st Appellant was a candidate sponsored by the 2nd Appellant in the Governorship/State Houses of Assembly election conducted by the 3rd Respondent on 9/3/2019 for the Bomadi State Constituency in Delta State. The 1st Respondent was also a candidate sponsored by the 2nd Respondent in the same election in Delta State. The 3rd Respondent declared the 1st Respondent winner of the election and duly returned. Being dissatisfied with the declaration by the 3rd Respondent, the Appellants filed a petition before the Lower Tribunal.

The parties filed and exchanged pleadings and at the conclusion of the pre-hearing session, the matter proceeded to trial at plenary on 2/7/019. The Appellants called witnesses and tendered evidence. However, the 3rd Respondent, though it actively participated at the trial and cross-examined witnesses, did not call any witness and also did not tender any document, having not been allowed to file its reply out of time. At the close of the case, the Tribunal delivered its judgment dismissing the Appellants’ Petition for lacking in merit. Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
1. Whether by the uncontroverted figures pleaded by the Appellants in their Petition, the Appellants have not proved their claim on a balance of probability?
2. Whether the error of heading of the Petition affects the jurisdiction of the Lower Tribunal?
3. What is the effect of the failure of the 3rd Respondent – Independent National Electoral Commission to file its Reply or Defense to the Petition of the Appellants?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, the Appellant submitted that by the uncontroverted figures pleaded by the Appellants in their Petition, they proved their claim on balance of probability in that the 1st and 2nd Respondents who filed their reply did not specifically deny the pleadings of the Appellants contrary to the mandatory statutory requirements of the provisions of Paragraph 12(2) and Paragraph 15 of the First Schedule to the Electoral Act 2010 (as amended), and submitted that in law by the rules of pleadings in an election petition, as it relates to Respondent’s Reply, where a petitioner claims to have won majority of the lawful votes cast and sets out distinctly in his pleadings, particulars of the election result/figures different from that declared by the electoral body, the 3rd Respondent herein, a Respondent who had been declared as the winner of the election is statutorily mandated to disprove the pleaded figures in his reply, and the consequences of the failure by the 1st Respondent to do so is an admission of the results pleaded by the Appellants in their Petition. Reliance was placed on DR. OLUSEGUN AGAGU & ORS V. RAHMAN OLUSEGUN MIMIKO & ORS (2009) LPELR – 21149 (CA).

On issue two, it was submitted that the Appellants’ petition was filed at the registry of the lower tribunal, which is the proper tribunal created by law for determination of election petition matters, but conceded that the petition was wrongly headed as “In The Delta State House of Assembly Election Tribunal” instead of “In The National and State Houses of Assembly Election Petition Tribunal” but that in law, the wrong heading of a court in an originating process does not affect its jurisdiction or competence of the court to entertain a matter on its merit and urged the court to resolve this issue in favor of the Appellants against the Respondents. Appellants’ relied on THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. NAMA (2014)LPELR-22372 (SC).

On issue three, Appellants submitted that the failure of the 3rd Respondent to file its reply or defense to the Appellants’ petition despite due service of the petition on it, failed or refused to file its defense is that the facts pleaded by the Appellants were thus unchallenged, uncontroverted and amounting to admission of the averments by conduct and that in the circumstances of such admitted pleadings or facts, the law does not require any proof of the admitted facts, but even if proof is still required, only a minimal evidence will be necessary to grant the claim.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, the Respondents submitted that in the petitioners’ reply dated 30/4/2019, the Appellants did not raise any issues regarding admission of any figure, and at any rate, having joined issues with the 1st and 2nd Respondents, the Appellants cannot be allowed to raise issues of admission of figures again and that even if the 1st and 2nd Respondents admitted the figures of the Appellants, that itself will not entitle them to judgment in view of the declaratory nature of the reliefs sought by the Appellants relying on Aregbesola V. Oyinlola (2011) 9 NWLR (Pt.1253).

Also, that the petitioner failed to prove by cogent and compelling evidence that the alleged non-compliance was as such as to substantially affect the result of the election. Furthermore, that the Appellants were under obligation to prove the figures attracted or omitted by the said non-compliance and where a petition is predicated on falsification of election results, irregularities and malpractices, the petitioner is fixed with the burden of providing particulars or the polling units where the alleged malpractice took place and this, the petitioner failed to do.

On issue two, the Respondents submitted that any defect in the competence of a court is fatal and the proceedings a nullity however well conducted and also submitted that by virtue of Section 9 (1) of the 1999 Constitution, 2nd Alteration Act No.2, 2010, the tribunal with exclusive original jurisdiction to hear and determine whether a person has been validly elected as a member of the National Assembly and as a member of the House of Assembly is the National and State Houses of Assembly Election Petition Tribunal and the Delta State House of Assemble Election Tribunal is unknown to the 1999 Constitution and as such, its proceedings are a nullity.

On issue three, Respondent’s submitted that this issue does not arise from the judgment of the trial tribunal but from an interlocutory ruling delivered by the tribunal and that being an interlocutory ruling of the tribunal, leave of court is needed to appeal against same by virtue of Section 24(2)(a) of the Court of Appeal Act, 2004, without which the issue is incompetent and liable to be struck out. Reliance was placed on Abdul V. Congress for progressive Change & Ors (supra) @ pp. 34- 36. It was also submitted that the failure of the 3rd Respondent to file a reply to the petition will not entitle the Appellants to judgment in view of the nature of reliefs sought.

RESOLUTION OF ISSUES
In resolving issue one, the court held that electoral results are presumed to be regular unless and until rebutted by credible evidence to the contrary and that an allegation of corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2010 (as amended) against an Election must be rebutted by credible evidence to the contrary. That in law, an allegation of corrupt practices is by all standard, criminal in nature and once it is made central to the issues in contention between the parties, it must be proved beyond reasonable doubt as required by law. Relying on Section 135 of the Evidence Act 2011 and Nwobodo V. Onoh (1984) 1 SCNLR 1 and that when therefore, it comes to the issue of allegation of and proof of non-compliance with the Electoral Act, the Appellants as Petitioners were under the duty first to prove the occurrence of acts or omission constituting the fact of non-compliance and then, they are under a more greater duty to prove that the non-compliance was substantial and had indeed, affected the result, the outcome of the election.

Also, that the Appellants, who made non-compliance with the Electoral Act the ground of his petition, bear the burden of proving same by cogent and compelling evidence firstly, that such non-compliance occurred and secondly, that the non- compliance is of such widespread nature as to substantially affect the result of the election to his disadvantage. Thus, the mere fact that it was proved that there were even irregularities or failure to strictly adhere to the provisions of the Electoral Act is not ipso facto sufficient to void the election, which can only be voided on proof that the irregularities or failures constitute a substantial departure from the principles of the Electoral Act, and that the irregularities or failures have substantially affected the results of the election.

In resolving issue two, the court determined the legal effect of heading the petition “In The Delta State House of Assembly Election Tribunal” instead of “In The National and State Houses of Assembly Election Petition Tribunal.”The Court held in agreement with the Appellants that the wrong heading of a court in an originating process does not affect its jurisdiction or competence of the court to entertain a matter on its merit. Placing reliance on THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. NAMA (2014) LPELR – 22372 (SC).

According to the court, this is because courts do not concern itself with trifles but with the substance and justice of the case which are weightier matters. Thus, neither a wrong date of judgment in a Notice of Appeal nor wrong heading of the court in an origination process but filed in the Registry of the proper court are issues of such serious nature that should bug the court and be allowed to become a clog in the wheels of rendering substantial justice to the parties. In the instant case, the wrong heading of the Lower Tribunal in the Appellants’ petition did not fetter the jurisdictional competence of the Lower Tribunal to hear and determine the Appellants’ Petition as it did on the merit.

In resolving issue three, the court addressed whether the mere failure of the 3rd Respondent to file its reply to the Appellants’ petition by itself alone entitles the Appellants to judgment in view of the nature of reliefs sought by the Appellants? The court responded in the negative and stated that in law, the onus remains on the Appellants to prove and establish their claims on credible and cogent evidence put forward by them without relying on the weakness or even absence of the case of the Respondents. They must do so even when there is admission of their claims which are declaratory in nature. However, this is not to suggest or say that in the proof of their claim, they are not entitled to make use of evidence from the Respondents that support their claims since in law, they are perfectly entitled to do so; placing reliance on AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT.1253) 458. SEE ALSO CPC V. INEC (2011) 18 NWLR

With respect to the instant case, the Court held that even though admittedly, the 3rd Respondent did not file a reply to the Appellants’ petition, the Appellants were still under an obligation to lead in proof of their case. According to the Court, the Lower Tribunal was right to have held that the Appellants did not prove their case and were thus not entitled to the grant of the relief claimed by them.

HELD
The Court dismissed the appeal for lacking in merit.

Appearances:
Lucky Oyibo, Esq. -For Appellant(s)

Felix Okorotie, Esq., with him Isaac Salo, Esq. -For the 1st and 2nd Respondents

Ehikioya Imhanluobe, Esq., holding the brief of B.J.O. Agoi, Esq., -For the 3rd Respondent
Compiled by LawPavilion


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