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When ground(s) for the presentation of a petition will be invalid and effect of same

By Editor
31 December 2019   |   4:15 am
The facts of the case is that on 9/3/2019, the 3rd Respondent conducted general elections in Nigeria, including election to the seat to represent Ndokwa East Constituency...

HON GODSTIME EGWORABOR & ANOR v. HON FRIDAY OSANEBI & ORS (2019) LPELR-48802(CA)

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

On Saturday, 9th November, 2019
Suit No: CA/B/EPT/16/2019

Before Their Lordships:

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

Between

1. HON GODSTIME EGWORABOR
2. ALL GRASSROOT ALLIANCE (AGA) -Appellant(s)

And

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

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

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

The facts of the case is that on 9/3/2019, the 3rd Respondent conducted general elections in Nigeria, including election to the seat to represent Ndokwa East Constituency of the Delta State House of Assembly, and a total of 19 contestants participated in the election. In the said election, the 1st Appellant was the candidate of the 2nd Appellant while the 1st Respondent was the purported candidate of the 2nd Respondent. At the conclusion of the election, the 1st Respondent was returned and declared elected as the House of Assembly member to represent Ndokwa East Constituency by the 3rd Respondent. The Appellants was of the view that the 1st Respondent was not qualified to have contested the said election and that the information contained in the affidavit submitted by the 1st Respondent to the 3rd Respondent are tainted with untruth.

The parties filed and exchanged pleadings. After the close of pleadings and before the pre-trial hearing, the 1st Respondent filed an application seeking to introduce a document, which was granted in a pre-hearing ruling.

After the trial, the tstruck out the Appellants’ petition for being incompetent and further dismissed it for lacking in merit. Dissatisfied, appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
Whether the grounds of the petition as formulated by the Petitioners/Appellants are cognizable under Section 138(1) of the Electoral Act 2010?
Whether Form CF00I submitted by the 1st Respondent to the 3rd Respondent in 2018 at the time of the election, contained such false information of a fundamental nature in aid of his qualification for the election?
Whether the lower tribunal was right in holding that the 1st Respondent was qualified to contest the questioned election?

APPELLANT’S COUNSEL SUBMISSIONS
On the first issue, the Appellants’ submitted that the lower tribunal was wrong when it struck out the two grounds of the Appellants’ petition on the ground that the Appellants did not state their grounds word for word as in the provision of Section 138 (1)(a) & (e) of the Electoral Act 2010 (as amended) and contended that the decision by the Lower Tribunal was arrived at without a global reading of the averments in the Appellants’ Petition. It was also submitted that the reliance placed by the Lower Tribunal on the decision in Barr Bashir Muhammed & Anor V. Hon Rashida Abdullahi & Ors. (2015) LPELR – 40632 (CA) to strike out the two grounds of the Appellants’ petition as being incompetent was misplaced in that the decision was based on the interpretation of the provisions of Section 138 (1) (b) of the Electoral Act 2010 (as amended) as opposed to the provisions of Section 138 (1) (a) & (e) of the Electoral Act 2010.

On the second and third issues, it was submitted that the lower tribunal was wrong when it admitted Exhibits R1A1, R1A2 and R4 as they were uncertified copy of a public document, un-pleaded and did not originate from the source to which they were attributed to and contended further that Exhibits R2A1, R2A2, R5, R3A1 R3A2 and R6A1 were also inadmissible as computer generated document, not in satisfaction of the law and not laying proper foundation for their admissibility.

It was also submitted that the lower tribunal was wrong when it failed to consider and determine some of the germane issues placed before it by the Appellants and also not preferring any reasons for not doing so, including the issue whether the 2nd and 3rd Respondents have the locus standi to make a defense for the 1st Respondent. Reliance was placed on Section 31 of the Electoral Act 2010 and Section 36(1) of the Constitution of Nigeria 1999 (as Amended.)

It was further submitted that the lower tribunal refusal to make use of the 1st Respondents Forms CF001 used in 2011 and 2014 on the ground that they were not relevant to the determination of the issues in the Appellants’ petition was perverse and in conflict with the decisions of the Supreme Court which was though brought to its knowledge. Reliance was placed on Salleh V. Abah 2017 LPELR – 4191 (SC) amongst others.

RESPONDENT’S COUNSEL SUBMISSIONS
On the first issue, the Respondents submitted that the Appellants had strayed away from the specific wordings employed by the enabling provisions and contended that the Appellants have not for one second, argued that their grounds were not improperly couched, rather, their contention was that the objection to the grounds were not properly raised and urged the court to hold that that the lower tribunal was perfectly right when it held that the two grounds relied upon by the Appellants were outside the specific provisions of the enabling law and therefore, incompetent and to dismiss the appeal and affirm the finding of the lower tribunal. Reliance was placed on Section 138(1) (a)-(e) of the Electoral Act 2010 (as amended) and Barr Bashir Muhammad & Anor V. Hon Rashida Abdullahi & Ors (2015) LPELR – 40632 (CA).

It was also submitted that the Appellants’ ground two is not covered by Section 138(1) of the Electoral Act 2010, having been modeled after Section 31 (5) of the Electoral Act 2010, which is outside the jurisdiction and powers of the lower tribunal, and that the right place for the Appellant to have pursued the ground two of their petition was at the regular courts and not at the lower tribunal.

On the second and third issues, the Respondent’s submitted that both on the pleadings and the evidence led at the trial, the Appellants failed to prove that the 1st Respondent was not qualified to contest the election and contended that the Appellants’ petition was clearly a pre-election matter rooted in the provisions of Section 31 (5) of the Electoral Act 2010 (as amended) and not on Section 138 (1) (a) of the said Act under which it was quite wrongly but purported to have been brought before the lower tribunal.

That since the burden was on the Appellants who alleged to prove their allegation, the Appellant failed to prove that the Forms CF001 of the 1st Respondent tendered in evidence as Exhibit R1A3 contained any false information of a fundamental nature in aid of his qualification to contest the questioned election and contended that there was neither any pleadings nor evidence that the 1st Respondent was not qualified to contest the questioned election. Reliance was placed on Akinbade V. Babatunde (2017) LPELR-43463(SC); among others.

It was further submitted that the Appellant failed to prove the ingredients of the alleged forgery and also failed to show that the 1st Respondent knew the document to be false and presented it with the intent that it may be used or acted upon as genuine to the prejudice of any person or with intent that any person may in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Nigeria or elsewhere – Eva V. Olepade & Anor (2011) LPELR- 1184 (SC).

RESOLUTION OF ISSUES
In resolving issue one, the court held that the issue was not about a ground of an Election Petition couched in a party’s own word. The real issue before the lower tribunal was whether the two grounds relied upon by the Appellants were valid within the provisions of Section 138 (1)(a) &(e) of the Electoral Act 2010 (as amended) In resolving this, the court stated in complete agreement with the lower tribunal as well as the unassailable submissions by the counsel for all the respective Respondents, that in this appeal, the decisions in OJUKWU V. YAR’ ADUA 2009 12 NWLR PT. 1154 50 and Barr Bashir Muhammad & Anor V. Hon Rashida Abdullahi &Ors (2015) LPELR – 40632 (CA), which are based facts and circumstances similar to the facts and circumstances in the instant appeal, are the apt decisions to be followed as was rightly done by the lower tribunal when it held, and quite rightly too, that the Appellants’ petition, taking into consideration the two grounds relied upon therein, was bereft of any valid ground as required by law and was thereby rendered incompetent and liable to be struck out.

Thus, as held in Barr Bashir Muhammad & Anor V. Hon Rashida Abdullahi &Ors (2015) LPELR – 40632 (CA) while relying on the succinct statement of the law by the Supreme Court in Ojukwu V. Yar’ Adua 2009 12 NWLR PT. 1154 50, the court held that where a “Petitioner, such as the 1st and 2nd Respondents, is obligated to found or base his petition within the ambit of any of the four grounds as prescribed by Section 138 (1)(a) – (d) of the Electoral Act 2010 (as amended), failing which such a petition is rendered incompetent. A petitioner cannot in law, on his own volition, go outside the grounds as prescribed by Section 138 (1)(a) – (d) of the Electoral Act 2010 as amended, neither does he have the power or liberty to add to or subtract from the grounds as provided specifically in Section 138 (1)(b) of the Electoral Act 2010 as amended.”

In the instant case, the court held that the lumping of non-existent grounds in ground one under Section 138 (1)(a) and alteration and delimiting of the provisions of the Section 138(1)(e) in ground two, unequivocally rendered the Appellants’ petition irredeemably invalid being bereft of any valid ground for challenging the questioned election of 9/3/2019 into the Ndokwa East Constituency in the Delta State House of Assembly as required by law for its validity. In view of this, the court struck out the Appellants’ petition for being incompetent. However, the court still proceeded to consider the remaining issues for determination in this appeal.

On the second and third issues, the court proceeded to determine what pieces of evidence were led by the Appellants in proof of their allegations that the 1st Respondent was not qualified to contest the questioned election in that he does not possess the minimum educational qualification of First School Leaving Certificate or his equivalent and also, that he had given false information to the 3rd Respondent of a fundamental nature in aid of his qualification to contest the questioned election, which grounds are as prescribed in Section 138(1) (a) & (e) of the Electoral Act 2010 (as amended)?

According to the court, the Appellant had a duty to prove false information being in the nature of criminal imputation beyond reasonable doubt even in an election petition once it is made central to the issues in contention between the parties. However, there was even no pleading that the 1st Respondent does not possess the First School Leaving Certificate or its equivalent. There was also no pleading that the 1st Respondent gave false information of a fundamental nature to the 3rd Respondent in aid of his qualification to contest the questioned election.

The Appellants pleaded nothing relevant to the ground they sought to rely on and equally proved nothing concrete as required of them by law. They proved no falsity of any information contained in the Form CF001 submitted by the 1st Respondent to the 3rd Respondent for use in the questioned election. They also failed to prove any lack of educational qualification or otherwise of the 1st Respondent to contest the questioned election as stipulated by Sections 131 of the Evidence Act 2011 and Sections 106 and 107 of the Constitution of Nigeria 1999 (as amended). Finally, that the Appellants failed to prove that the questioned election was invalid by reason of corrupt practices and or substantial non-compliance with the Electoral Act 2010 (as amended) as required of the by law.

HELD
In conclusion, the Court dismissed the appeal for lacking merit.

Appearances:
S.E.M. Oritsegbemi, Esq., with him,
O. Egwerabor, Esq., and
L. E. Enafoma, Esq. – For Appellant(s)

Ikhide Ehighelua, Esq., with him,
O.J. Obodaya, Esq. – For the 1st Respondent

I.O. Obare, Esq., with him, E.O. Namuna, Esq. – For the 2nd Respondent

Yakubu Galadima, Esq., with him,
I. B. Ezeagu, Esq. and George Ochima, Esq. – For the 3rd Respondent

Compiled by LawPavilion