Chief Lawrence Olujide Adewale & Anor. V. Dr. Ibrahim Olaifa & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A.: (Delivering the Leading Judgment)

On 19.12.2011, I dismissed the appeal promising to give reasons for judgment at a later date, which I now give.

The National and State Houses of Assembly Election Tribunal (lower Tribunal) sitting in Ibadan gave judgment on 11.8.2011 confirming the election of the 1st respondent as member of the House of Representatives for the Oluyole Federal Constituency of Oyo State,

It happened that the 1st respondent was sponsored by the 2nd respondent, Accord party, to contest the election conducted on 9.4.2011 by the 3rd respondent, the Independent National Electoral Commission (I.N.E.C).

The 1st appellant who was sponsored by the 2nd appellant, Action Congress of Nigeria, also participated in the election. Ten other political parties also fielded their respective candidates in the election. The 3rd respondent declared the 1st respondent the winner of the election with 10,090 votes, while the 1o appellant came second with 9,988 votes. The 1st respondent’s victory was thus by a narrow margin.

The appellants filed a joint petition at the lower Tribunal complaining that the election was marred by malpractices and non compliance with the provisions of the Electoral Act, 2010, as amended (the Act), which affected the lawfulness of the votes cast at the election and; that the 1st respondent was disqualified from contesting the election for not resigning his appointment with the Lagos State Government one month prior to the date of the election and for presenting a forged tax clearance certificate to the 3rd respondent before the election. The lower Tribunal heard evidence in the petition and resolved in its judgment that the petition was not proved and dismissed it on the merit.

A notice of appeal containing 15 grounds of appeal was filed by the appellants from which the following issues were refined for determination on the appeal –

1. “Whether the tribunal was right and did not cause a serious miscarriage of Justice when it disallowed the Petitioners to give further evidence on Ward 7 Units 17 and 18 on the ground that same was not pleaded when the evidence which would have supported the Petition was discovered pursuant to an order for inspection made by the same tribunal and when there is enough pleading to accommodate the evidence?
2. Whether the Tribunal was right and did not cause a serious miscarriage of Justice when it discountenanced and refused to review and act on the evidence proffered by the Petitioners on Ward 7 Units 17 and 18 on the ground that no one gave evidence on those Units?
3. Whether the Tribunal was right in holding that the election conducted by the 3rd Respondent in Ward 7

Units 7 and 13 were not fraught with substantial non-compliance with the provision of Electoral Act 2010 to warrant nullification of the results?

4. Whether the tribunal was right and did not cause a serious miscarriage of justice in discountenancing wrongly rejected ballot papers which it had earlier admitted in evidence as exhibits 23(1) to 95(7) on the ground that they were not marked “rejected” or “rejected but not objected to” and that PW7 the expert did not show why the ballot papers ought not to have been rejected?
5. Whether the tribunal was right in holding that the 1st Respondent and not the 1st Petitioner had the majority of lawful votes at the House of Representatives election of 9th April 2011 into Oluyole Federal Constituency seat of Oyo State?
6. Whether the tribunal was right in holding that the 1st Respondent was not disqualified from contesting the election?”

The appellants’ brief argued on issue 1 that the lower Tribunal was holding that the appellants as petitioners could not give further of electoral documents missing ballot papers discovered by them pursuant to an order of inspection made by the lower Tribunal when the discovered documents were meant to maintain and sustain the petition of the appellants in respect of the pleaded ward 7 unit 17 and 18 of the Constituency (Aba Alfa and Ajofebo units respectively) on the lawfulness of votes envisaged by paragraph 13 (i) of the First Schedule to the Electoral Act, 2010 as amended (First Schedule) and did not amount to raising new issues forbidden by paragraphs 14(2)(iii) of the First Schedule, considered together with the cases of Aregbesola v. Oyinlola (2009) 14 NWLR (Pt.1162) 429 5 S.C. 133 at 150 to 171, Chia v. Uma (1998) 7 NWLR (Pt.556) 95 and Bullen, Leake and Jacobs: Precedents of Pleadings 1975 (12th Edition) Chapter IV page 377 and Odgers on Pleadings and Practice 20th Edition 3rd Indian Reprint 2010 pages 101 – 105.

The Appellants’ brief argued on issue 2 that the reply of the appellants as petitioners to the reply of the 3rd respondent on 29.7.2011 pleaded facts in respect of ward 7 units 17 and 18 upon which the PW8, the 1st petitioner now 1st appellant, testified covering Exhibit 20 as well which was admitted in evidence without objection, therefore the lower Tribunal abdicated its duty to evaluate the said pieces of evidence on the erroneous ground that it was not pleaded and this Court should do the evaluation accordingly vide Fagbenro v. Arobadi (pt.798) at 193, Romaine v. Romaine (1992) 4 NWLR (pt.238) 650 and Akinola v. Oluwo (1962) 1 SCNLR 352.

Appellants’ brief contended on issue 3 that the result of the election in Form EC8A(i) tendered as Exhibit 16(G) was not the true result of the election held in ward 7 unit 7 because the majority of the accredited voters could not vote at the election as pleaded in the petition and supported by the evidence of the PW1, the PW5 the PW8 yet Exhibit 16(G), the result of the unit recorded by the 3rd respondent made up the figures contained therein to give the impression that election was held in the unit when the 3rd respondent wrote and allotted figures in haste on Form EC8A (i), the result of the polling Unit to favour the 1st respondent, consequently the lower Tribunal was wrong to make a case for the respondents on the number of voters on the queue in the unit at the time of accreditation vis-a-vis the number of accredited voters as the respondents did not plead and give evidence on the issue.

It was also argued on issue 3 that PW3 testified corroborated by the evidence of the an ACN member, who was disallowed to vote, as well as the evidence of the PW8 that 84 persons were disenfranchised in ward 7 unit 13 of the Constituency, yet the result of the election in Form EC8A(i) admitted in evidence as Exhibit 16(m) told “a lie of itself” that election was held in the unit by giving particulars of figures of the election which should have prevailed on the lower Tribunal to nullify the result of the unit and, having failed to do so, this Court should void the result of the election in ward 7 units 7 and 13.

Issues 4 and 5 of the brief were argued together to the effect that 653 ballot papers in Exhibits 23(1) – 95(7) tendered through the PW6 were rightly thumb printed for the 2nd petitioner now 2nd appellant as found by the expert evidence of the PW7, a Dr. Depo Faokunla, in pages 625 – 640 of the record were wrongly rejected by the 3rd respondent yet the lower Tribunal refused to add the wrongly rejected 653 ballot papers as votes to the scores of the 2nd appellant on the grounds that it tested the ballot papers against the provisions of section 67 of the Electoral Act, 2010, as amended, (the Electoral Act) and observed no marks of “rejected” or “rejected but not objected to” on them, that the PW6 stated that the ballot papers were “validly rejected” while the PW7 stated that they were wrongly rejected, and that the PW7 did not state why the ballot papers were wrongly rejected, when the PW7 gave the reason that the ballot papers were “rightly thumb printed for the 2nd petitioner” thus supplying the reason to back his expert opinion that the ballot papers were wrongly rejected which piece of important evidence was erroneously ignored by the lower Tribunal making its decision thereby perverse leading to miscarriage of justice which should persuade this Court to set the said perverse finding aside vide Chukwu v. State (2007) 13 NWLR (pt.1052) 430 at 468 and Mogaji v. Odofin (1978) 4 SC. 91.

It was also submitted that the lower Tribunal did not examine the ballot papers to see whether they were rightly thumb printed in line with the case of the parties, not whether they bore the mark “rejected” or “rejected but objected to” not raised in the petition and the replies, therefore, this Court should evaluate the evidence on the improperly evaluated ballot papers in Exhibits 23(1) 95(7) vide the cases of Trade Bank Plc. v. Yisi (Nig. Ltd. (2006) 1 NWLR (pt.960) I v. Sajere (2006) 6 NWLR (pt.661) 360 enjoining courts not to violate the pleadings of the parties by making a case for them.