Aiyeomo Remi V. Akinrodoye Ebun Sunday & Anor (1999)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

When this appeal came up for hearing on 19-3-1999. it was observed that there were two distinct and separate appeals namely –

(1) The appeal by Aiyeomo Remi whose election and return by INEC as the Chairman of Irele Local Government Area of Ondo State was set aside by the Election Tribunal, and

(2) The appeal by the Independent National Electoral Commission (INEC) and its officials who conducted the Local Government Elections in Ondo State including the election to the office of the Chairman of Irele Local Government Council of Ondo State which is in dispute in this appeal.

As the appeals though arose from the same proceedings of the Ondo State Local Government Election Tribunal sitting at Akure, were being handled by separate counsel representing parties whose interests are not the same and who had filed separate briefs of argument, we decided to hear the two appeals separately by giving the appeal by INEC and its officials a separate number CA/B/78A/99 and was heard as such. This judgment is therefore in respect of the first appeal by Aiyeomo Remi with Akinrodoye Ebun Sunday and Akinyode Olusegun as the respondents.

Election into various Local Government Councils, including Irele Local Government Council of Ondo State were conducted throughout the country on 5-12-1998 under the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 which in this judgment shall simply refer as ‘Decree 36 of 1998’. The appellant and the 1st respondent were candidates for the post of Chairman of Irele Local Government Council of Ondo State. The appellant contested the election under the platform of the Alliance for Democracy (AD) while the 1st respondent contested under the platform of the Peoples Democratic Party (PDP). At the conclusion of the election, the appellant Aiyeomo Remi of the Alliance for Democracy (AD) was returned as the duly elected Chairman or Irele Local Government Council of Ondo State having polled 13,979 votes against 7,686 votes scored by the 1st respondent.

Dissatisfied with this result or the election and the return of the appellant, the 1st respondent filed a petition before the Ondo State Local Government Election Tribunal sitting: at Akure challenging the election and return of the appellant. Although the petition was presented on 18-12-1998 twelve days after the dcc1aration of the results of the election on 6-12-1998, the payment of the balance of the amount required for deposit for security for costs was not done by the 1st respondent/petitioner until 29-12-1998 more than 14 days after the declaration of the results of the election. Although the appellant had raised an objection to the competence of the petition before the Election Tribunal, the objection was heard and dismissed by the Tribunal which proceeded to hear the petition on its merits.

The main ground upon which the election and returned of the appellant were challanged in the petition was that although election was conducted in all the units or Ajagba 1 Ward 7 and Ajagba II Ward 8 in Irele Local Government Area, the results were not collated and added to the final results upon which the appellant was declared and returned as the winner of the election. The 1st respondent therefore urged the Tribunal to declare him the winner of the election by adding the results of the two Wards 7 and 8 of Ajagba I and II to the final scores of the two candidates namely, the appellant and the respondent which would have the effect of making the 1st respondent the candidate with the majority of lawful and valid votes cast at that election being 17,794 votes against the 15,053 votes scored by the appellant. It was the stand of the 1st appellant and INEC on this petition that there was no return of votes from these two Wards 7 and 8 of Ajagba I and II because no election was conducted in the Wards on the date of the election. At the end of the hearing of the petition, the Tribunal in its judgment delivered on 16-2-1999 found in favour of the 1st respondent/petitioner and declared him the winner of that election and returned him accordingly is the duly elected Chairman of Irele Local Government Council of Ondo State. The relevant part of this judgment at pages 138 – 139 of the record reads:-

“We shall therefore add the scores of the 1st petitioner and the 1st respondent from the two Wards in Ajagba to the result already declared in order to determine who between the 1st respondent and the 1st petitioner scored a majority of lawful votes cast in all the wards in Ajagba Irele Local Government. On addition, the scores of the 1st respondent is 14,756 votes, while that of the Ist petitioner is 15,985 votes.

With the 1st petitioner’s 15,985 votes against the 1st respondent’s 14,756 votes, the Tribunal holds that it was the 1st Petitioner and not the 1st respondent that scored a majority of lawful votes cast at the election. We hold that the 1st respondent who was returned as elected was not validly elected having not scored the majority of valid voles cast at the election. The petition therefore succeeds, and accordingly we hereby declare and determine that the petitioner Akinrodoye Ebun Sunday, was at the time of the election duly elected by a majority of all the lawful votes, he having scored the majority of 15,985 votes which is at least 1/4 of the total votes cast in not less than 2/3 of the Wards in Irele Local Government.”

Dissatisfied with this judgment the appellant, who was the 1st respondent before the Tribunal has now appealed to this court upon 9 grounds of appeal contained in his Notice and Grounds of appeal filed on 22-2-1999. Arising form the 9 grounds of appeal the following 4 issues for the determination of the appeal were distilled in the appellant’s brief of argument.

“1. Whether or not the lower Tribunal had/has jurisdiction to entertain the petition considering the fact that it was filed on 29th December 1998 – Ground 1.

2. Having regard to the state of pleadings of the parties and the evidence adduced by the petitioner himself, whether or not the lower Tribunal was not in grave error to have declared the Petitioner/1st respondent herein as the winner of the election with a poll of 15,938 votes as against 14,756 votes credited to the appellant – Grounds 4 and 5.
3. Was the lower Tribunal right in holding that election took place at Ajagba II Ward 8 and Ajagba I Ward 7 – Grounds 2, 3 and 6.
4. Considering the circumstance surrounding the conduct of the election, the evidence led, the declarations made by the 2nd to 7th co-respondcnts/co-appellants and the provisions of Decree No. 36 of 1998, whether the lower Tribunal was not in error to have upturned the return of the appellant as the Chairman of Irele Local Government. Grounds 7, 8 and 9.”

However, although the above issues were duly adopted by the Respondents in their brief of argument filed on 12-3-1999, the 4 issues were differently worded as follows:

a) Whether having regard to the further payments of costs made on the 29th of December 1998 the petition of the Petitioners/Respondents was competent so as to vest jurisdiction in the Tribunal

b) whether the lower Tribunal was right when it held that elections took place in Ajagba I Ward 7 and Ajagba II Ward 8. A

(c) Whether the lower Tribunal was right when it accepted the results from Ajagba I Ward 7 and Ajagba II Ward 8 as presented by the Petitioners/Respondents as true and authentic.

(d) Whether the lower Tribunal was right when it calculated the election result figures of the parties based on the evidence before it (but different from those pleaded and proved by the petitioners/respondents at the hearing) and returned the petitioners/respondents as duly elected on the Election result figures.”

I have carefully examined these issues as framed in the appellant’s and the respondents briefs of argument and having regard to the parties pleadings and evidence on record, I am of the view that this appeal can be determined effectively on only two issues relating to the question on jurisdiction and proof of conduct of election and return from the only disputed two wards 7 and 8 in Ajagba I and II respectively. In otherwords, the only issues for determination in this appeal are:-

1. Whether having regard to the further payments made for security for costs and balance of fees made on 29-12-1998, the petition was competent to vest jurisdiction in the Tribunal.
2. Whether the Tribunal was right, having regard 10 the pleadings and the evidence un record, in finding that elections were held in Ajagba 1 Ward 7 and Ajagba II Ward 8 and in using the results from these 2 wards in returning the 1st Respondent as the duly elected Chairman of In-de Local Government Council.

On the first issue Chief Wole Olanipekun, the learned Senior counsel for the appellant referred to section 82 of Decree 36 of 1998 which prescribed a period of 14days from the date the result of the election is declared as the period within which an election petition must he filed under the Decree and submitted that as the respondents in the present case did not tile their petition until 29-12-1998, a period of more than 14 days after the date on which the result of the election was declared, the petition is incompetent and as such the Tribunal lackedjurisdiction to hear it. A number of cases including the cases of Olaniyonu v. Awah (1989) 3 NEPLR 108; (1989) NWLR (Pt.122) 493 C.A, Madukolu v. Nkemdilim (1962) All NLR 587; (1962) 2 SCNLR 341. Ekpo v. Calabar Local Government (1993) 3 NWLR (Pt.281) .124 and Atolagbe v. Awuwi (1997) 9 NWLR (Pt.522) 536 at 562-563 were cited and relied upon by the learned Senior counsel who urged this court to allow the appeal on this issue and strike out the petition.

It was submitted for the respondents however that the Tribunal was right in holding that the petition was competent inspite of the payment of the balance of the fees and deposit made on 29-12-1998 for filing the petition on 18-12-1998. That in any case there was no evidence before the Tribunal that the result of the election was declared on 6-12-1998 apart from the oral submission of counsel in the course of his arguing the motion to strike out the petition. Learned counsel referred to paragraph 3(4) of Schedule 5 of Decree 36 of 1998 and submitted that the non payment of security for costs while filing the petition did not ender the petition incompetent but merely put the hearing of the petition in abeyance as the payment was not a condition precedent to the hearing of the petition having regard with case of Aoudakaa & Ors. v. Gyegweh (1998) 1 NEPLR 39 at 54.

Indeed having regard to the provision of section 82 of Decree 36 of 1998 which states:

“An election petition under this Decree shall be presented within 14 days from the date on which the result of the election is declared:

it is mandatory that for un election petition under the Decree to be competent, it must be presented within the period of 14 days from the date on which the result of the election was declared. In the present case, the fact that the result of the election which the respondents challenged in their petition was declared on 6-12-1998 was not at all in dispute between the parties at the hearing of the appellant’s objection to the competence of the petition before the tribunal. The evidence before the Tribunal at the time of the hearing of the appellant objection is that although the petition was filed on 18-12-1998, payment of the filing fees and the deposit for security for costs was not completed until 29-12-1998 as shown on the receipt No. 539355 exhibited to the appellant’s affidavit in support or his motion. Therefore on the facts before the Tribunal, it is quite clear that the respondent’s petition was not properly presented until 29-12-1998 when the full amounts required for the fees and deposit for security for costs were finally paid. Therefore since the result of the election being challenged by the petition was declared on 6-12-1998 and the petition challenging that result was not properly presented until 21-12-1998, it is not difficult to see that the petition was not presented within the period or 14 days prescribed by section 82 or Decree 36 or 1998 earlier quoted in this judgment. This is because the period between the date of the declaration of the result of the election being challenged and the date on which the petition was finally properly presented is 23 days which is more than the 14 days period prescribed under the Decree. In otherwords, the respondent’s petition was clearly presented out of time not withstanding the circumstances surrounding the happening of that event.

It is observed that under Decree 36 of 1998 in presenting an election petition. certain conditions precedent must be complied with. These conditions precedent are to he round in paragraphs 3(1) and (2) and 4(4) of Schedule 5 of Decree 36 of 1998 under which it is mandatory to pay deposit for security for costs and fees for that service and publication or the petition and for certifying the copies of the petition at the time of presenting the petition. Obviously where for any reason the petition is presented without the payment of these necessary fees and deposit for security for costs, such petition, in my view cannot be deemed to have been presented under that Decree. The fees and deposit must he paid at the time of presentation of the petition before the petition is received by the Registrar and any wrongful receipt of the petition by the Registrar will not validate it. Thus since in the instant case the petitioner did not pay the fees and the deposit at the time of presenting the petition, it was not presented as provided by the Decree and for this reason the Tribunal was in error in holding that the petition of the respondents was competent. Having regard to the clear decisions in cases of Madukolu v. Nkemdilim (1962) All NLR 587; (1962) 2 SCNLR 341; Eminue v. Nkereuwen & Ors. (1966) 1 All NLR 63: Ogbolumani v. Okobi (1959) W.N.L.R. II and Olaniyonu v. Awah & Ors. (1989) 5 NWLR (Pt. 122) 493 at 503. I am or the firm view that the respondents petition was incompetent and ought to have been struck out by the Election Petition Tribunal which had no jurisdiction to entertain it. The appeal therefore succeeds on this issue which is hereby resolved in favour of the appellant.

Consequently, the respondents petition dated 18-12-1998 which the Tribunal ought to have struck out for want of jurisdiction to entertain the same but which the Tribunal failed to strike out after hearing the appellant’s objection, is hereby struck out as the Tribunal had no jurisdiction to entertain it.

Thus, the appeal having succeeded on the first issue, that would have been the end of the matter. However, having regard to the fact that other issues touching on the merit of the case have also been argued before us, I shall now proceed to resolve the second issue for determination.

The second issue for determination is whether the Tribunal was right having regard to the pleadings and the evidence unrecord in finding that elections were held in Ajagba Ward 7 and Ajagba II Ward 8 and in adding the results from the these two wards to the final results in returning the 1st respondent as the duly elected Chairman of Irele Local Government Council.

On this issue, it was argued by the learned Senior counsel for the appellant that having regard to the state of pleadings of the parties at the Tribunal, the burden of proving that election took place a Ajagba I ward 7 and Ajagba II ward 8 was on the respondents who asserted and relied on this fact in their petition. That having failed to call any of the presiding officers in the election to testify on the holding of the election, the respondents have failed to prove that fact. The cases of Ephraim v. Okon (1996) 2 NWLR (Pt.432) 595; and Na-Gambo v. NEC (1993) 1 NWLR (Pt. 267) 94 at 106 among others were cited in support of this argument. That in the absence of the evidence of the vital witnesses the Tribunal was in error in accepting the evidence of the 1st respondent and his witnesses and in accepting the evidence contained in the exhibits tendered by the 1st respondent himself and PW1, the police officer who tendered Exhibit ‘A’ the summary of Result for Ajagba Ward 8. That the Exhibits C – C10 and D – D12 which were tendered by the 1st respondent were not properly evaluated by the Tribunal. Learned Senior Counsel pointed out that although the respondents have pleaded and relied on the number or voles they scored as being 17,794 while the appellant had scored 15,035 votes at the election, the number of votes upon which the Tribunal found for the respondents are not the same as those pleaded and upon which evidence was led. That as panics are bound by their pleadings, on the authority of Lipede v. Shonekan (1995) 1 NWLR (Pt.374) 668, the Tribunal having found that the respondents as petitioners before it had not proved their case as pleaded, the Tribunal ought to have dismissed their petition.

For the respondents’ however it was contended by their learned counsel Dr. Emiko (hat having regard to the slate of pleadings and the totality or tile evidence, the Tribunal was right in finding that election took place in Ajagba I Ward 7 and Ajagha II ward 8. That the respondents testified and called witnesses in proof of their averments that elections were held in the two wards in Ajagba. That the evidence of the 1st respondent, PW1, PW2, PW3 and PW4 was positive and direct on the building or the election in the affected disputed wards and the results thereof contained in the various exhibits A, B, C – CIO and D -D12 produced by the 1st respondent and PW1, have clearly proved the case of the respondents. It was further argued that all the witnesses called by the appellant have failed to establish the claim of the appellant that election did not take place in the disputed Ajagba wards. Learned counsel cited the case of Nwachukwu v. Nwadukwe (1998) 5 NWLR (Pt.550) 424 and submitted that the Tribunal having seen and heard the witnesses, is in the best position to award probative value to the evidence before it. That having regard to the case of Nwobodo v. Onoh, the Tribunal acted correctly on the evidence in returning the respondents as duly elected. It was finally submitted for the respondents that the results of the election as contained in the appropriate forms provided by the electoral body and or authority is presumed genuine until the contrary is proved. Learned counsel therefore urged this court to dismiss the appeal.

There is no doubt at all that from the pleadings of the parties in this case and the evidence adduced on record, the real dispute between the parties is whether or not elections were duly conducted in the disputed wards and the results duly released to the parties. The burden of proving these facts of course was on the respondents who asserted the facts in their petition. In other words the respondents had the legal burden of establishing their case. To this end, it was incumbent on them to lead evidence on all material facts or issues they need to prove and thus make out their case calling for rebuttal by the appellant. See Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 and Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527 at 547. In the instant case, in order to prove that elections were conducted in Ajagba I Ward 7 and Ajagba II Ward 8, it is necessary in my view, to call at least one person who voted at any of the polling units in the two wards whose registration card would show the stamp of the presiding officer and date confirming that he had voted at the election, In the alternative, the presiding officer or any other official of INEC who participated in the conduct of the election, could give evidence to that effect and support that evidence by the production of the register of voters and other official documents of INEC prepared, signed and dated by him showing that election had taken place in all or some of the units of the wards concerned. Therefore I entirely agree that the failure of the respondents to call any of the persons who voted at the election in the disputed wards and whose registration card shows quite clearly that he had voted at the election or the presiding officers or other officers who conducted the election in the disputed wards, is clearly fatal to the case of the respondents. The very fact that the 1st respondent who produced the results of the election contained in Exhibits D – D12 could not properly explain the contents of Exhibit D1 under cross-examination at page 76 of the record when he saidâ

“It is the presiding officer who will be in a position to know. This result was given to me by my party agent.”

shows plainly the necessity of calling such presiding officers to confirm the authenticity of the documents produced by the 1st respondent and his witness PW1 before they could be regarded as evidence in proof of their case. Indeed the Tribunal itself having examined and rejected the evidence of the votes scored in Exhibits D3, D5, D11 and D 12 on the ground that there was no accreditation on them, could have also rejected the evidence contained in the remaining documents produced by the 1st respondent and PW1 on the same and other valid grounds apparent on the face of the documents, For example the 1st respondent having failed to explain the contents of Exhibit D1 at page 76 of the record under cross-examination by referring the question to the presiding officer of the election to answer who ought to have been called to give evidence in support of the case of the respondents but was not called, that the evidence in Exhibit D1 should have also been rejected by the Tribunal in the same way it rejected the evidence in Exhibits D3, D5, D11 and D12.

It is also trite that parties as well as the courts are bound by pleadings and any evidence given contrary to pleadings goes to no issue. See Lipede v. Shonekan (1995) 1 NWLR (Pt. 374) 668 at 686. Furthermore, a court is only bound to decide the case as formulated on the pleadings of the parties. It is not within the powers or a court to enter into any inquiry outside the pleadings or to adjudicate on matters not put in issue by the parties. See George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71;( 1963) 1 SCNLR 117. In the present case, the Tribunal was therefore clearly in error in its judgment in awarding the 1st respondent a total of 15,985 votes which were neither pleaded nor any evidence led by the 1st respondent to establish them. In the final analysis, it is not difficult to see that there was no admissible and credible evidence on record to support the judgment of the Tribunal in favour of the respondents.

The duty of this court as an appellate court to evaluation of evidence by the trial court is indeed trite, Where a trial court, as in the instant case fails to evaluate the evidence on record or erroneously does so or the conclusion reached is not supported by evidence on record, then this court in the interest of justice must exercise its own powers under section 16 of the Court of Appeal Act CAP 75 of the Laws or the Federation 1990 of reviewing those facts and drawing the appropriate inferences from the proved facts. See Lawal v. Dawodu (1972) 8 & 9 SC 83 at 114 – 117; Fashanu v. Adekoya (1974) 6 SC 83 at 91, Torti v. Ukpabi & Ors. (1984) 1 SCNLR 214 and Tsokwa Motors (Nigeria) Ltd. v. U.B.A. Ltd. (1996) 9 NWLR (Pt.471) 129 at 145. In the present case therefore where it has been clearly shown that the judgment of the Tribunal is not based on admissible and credible evidence, it is the duty of this court to intervene and set it aside particularly when there was no complaint that the non holding of election in Ajagba I and II Wards 7 and 8 had affected the results of the election in Irele Local Government Area.

Accordingly the two issues raised in this appeal having been resolved in favour or the appellant the appeal must succeed. The appeal is therefore allowed. The decision of the Ondo State Local Government Election Tribunal of 16-2-1999 returning the 1st Respondent Akinrodoye Ebun Sunday as the duly elected Chairman of Irele Local Government Council of Ondo State is hereby set aside. In its place, it is hereby ordered that the respondents petition is dismissed and the election and return of the appellant Aiyeomo Remi as the Chairman of Irele Local Government Council of Ondo State is hereby restored and affirmed.

There shall be N3,000.00 costs for the appellant against the respondents.

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Other Citations: (1999)LCN/0575(CA)