Hon. Ekpenyong O. Onoyom V. Hon. Gabriel Iyemi Egari & Ors (1999)
LawGlobal-Hub Lead Judgment Report
OPENE, J.C.A.
The petitioner who is now the appellant and the 1st respondent contested the local government election on the 5th day of December, 1998 for the Chairmanship of Biase Local Government Council of Cross River State. The appellant contested the election under the platform of the Peoples Democratic Party (PDP) while the 1st respondent was the candidate of the All Peoples Party (APP). At the end of the election, the 2nd and 3rd respondent declared the 1st respondent as the winner.
The appellant thereupon challenged the return of the 1st respondent at the Local Government Election Tribunal of Cross River State holden at Calabar complaining about malpractices in 6 out of the 11 (eleven) wards that constitute the Local Government Area. The tribunal in its judgment delivered on 15th February, 1999 dismissed the appellants petition.
Dissatisfied with that judgment, the appellant has now appealed to this court. In accordance with the rules of this court, all the parties filed their brief of argument.
After a careful perusal of the issues formulated in the briefs of argument of all the parties in this case, I am of the view that only two issues arise for determination of this appeal and they are:-
- Whether the tribunal was right in holding that failure of the appellant to join officials of INEC against whom allegations were made was fatal to his case;
- Whether the appellant has proved his case as required by the law.
The basis of the appellant’s petition was that elections did not take place in Ikun/Etona Ward, Erei South Ward, Erei North Ward and Abayong Ward due to diversion of the election materials away from the appropriate venue for election to private houses and unknown destinations thereupon thumb-printed ballot papers and that fraud was perpetrated in favour of the APP.
In Agwuagune/Okurike ward, the Supervisor distributed all election materials to the presiding officers but refused to give them the result sheets which he absconded with and was never seen again and the results which were completely different from the situation on the ground were later announced.
Nine (9) witnesses testified in support of the appellant’s case and the respondents also called witness that testified in support of their case. The tribunal in its judgment found that the election result from Adim Ward was wrongly rejected and then added the said to result to the appellant’s and the 1st respondent’s total scores but found that the appellant did not prove the allegations with regards to the other live wards.
In respect of issue No. 1, the appellant’s case is that there were no elections in Ikun/Etono and Erei South wards and that the INEC officials colluded with APP officials and that election materials were diverted to private houses for perpetrating fraud in favour of the APP.
In Erei North and Abayong wards, it is alleged that there were election malpractices, that there were no elections and that the election materials were taken to unknown destination and that despite all these fraud and irregularities that the INEC officials went ahead to announce the results in favour of the APP.
The appellant in his petition named the officials of INEC who committed these offences,
- Kennedy Ejim, Returning Officer for Ikun/Etono and the allegation is that he colluded with one Chief Sam Bassey to divert the electoral materials,
- Victor Ekpei, Supervisor for Erei South Ward, is alleged to have taken electoral materials for the ward to a wrong centre.
- Benjamin Inyang, the Returning Officer for the ward stayed at Agwuaguna to collate the ward results from Erei South Ward with the able assistance of the Electoral Officer.
- In Erei North ward, it was alleged that there were glaring irregularities and corrupt practices and that despite these that INEC went ahead and announced result for the ward.
- In Abayong ward, it was alleged that there was no election but the Electoral Official announced the result which was in favour of APP.
In Agwagume, it was alleged that there was no election but surprisingly, the INEC officials announced the result showing APP as the winner.
There is no doubt about it that serious allegations of fraud and electoral malpractices were made against the above named INEC officials and the question whether the tribunal was right in holding that the failure of the appellant to join them is fatal to his case.
In this regard, the relevant section of Decree 36 of 1998 is para. 48(1) of Schedule 5 which states as follows:-
“Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer, or any other official of the Commission, he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party, but an Electoral Officer, a Presiding Officer or Returning Officer shall not be at liberty to decline from opposing the petition except with the written consent or the Attorney-General of the State concerned or Attorney-General of the Federation, as the case may be.”
The provisions of this section of the law is very clear and unambiguous that where an election petition complains of the conduct of an Electoral Officer, Presiding Officer, Returning Officer or any other official of the Commission that he shall for all purposes be deemed to be a respondent and joined in the electoral petition as a necessary party.
It can be seen that it is mandatory to join an Electoral Officer, a Presiding Officer, the Returning Officer or any other official of the Commission whenever a petition complains about their conduct. In the instant case, the petitioner’s petition complains about very serious acts of fraud and malpractices and it is therefore incumbent on the appellant to join them as parties to this case.
Mr. Ukwem, the learned counsel to the appellant had argued that the compulsory necessary respondents are the person who won the election, the Electoral body and the returning officer, he then referred to Omoboriowo v. Ajasin (1984) 1 SCNLR 108 (1984) All NLR 105 at P.126 where Obaseki J.S.C. observed as follows:
“There are only two compulsory necessary statutory respondents namely, (1) the successful candidate and (2) the Chief Federal Electoral Officer of Ondo State for proper constitution of the election petition. See section 121(a) and (e) of the Electoral Act 1982.”
Section 121 of the Act deals with the right to present petition and has nothing to with the joinder of parties and was therefore referred to in an error. The correct section of the Act is section 147(3) and it reads:-
“Where a petition complains of the conduct of a Returning Officer, he shall for all purposes be deemed to be a respondent; and except with the consent in writing of the Attorney General he may not withdraw from the trial of the petition. If the consent of the Attorney-General is withheld, the Returning Officer shall, where the misconduct was not willful, incur no personal liability for costs which may be awarded against him upon the trial of the petition, and this section shall be a sufficient indemnity accordingly.”
What this section states is that where a petition complains of the conduct of a Returning Officer that he shall for all purposes be deemed to be a respondent, this is not as far reaching as the provisions of paragraph 48(1) of Schedule 5 to the Decree 36 of 1998 which went further to add the following; “and joined in the election petition as a necessary party’”
The Supreme Court was interpreting the provisions of section 147(3) of 1982 Act in Omoboriowo v. Ajasin supra which is different from the provisions of paragraph 48(1) of the present Decree 36 of 1998 and its decision would have been different if the provisions of paragraph 48(1) had come before it for interpretation.
The appellant’s counsel had raised the issue that the tribunal raised the issue of joinder suo motu and that the counsel were not invited to address the court on this point. I must say that the court can set aside the decision of a lower court if such a decision has occasioned a miscarriage of justice, but in the instant case, the decision in question did not occasion any miscarriage of justice and if the parties had addressed the tribunal on the issues nothing different would have resulted as the appellant had failed to comply with the provisions of paragraph 48(1) of Schedule 5 to the Decree.
It therefore follows that failure on the part of the appellant to join the Electoral Officers, the Presiding Officers and any other official of the Commission that his petition complains of their misconduct is fatal to his case and the appellant’s petition ought to have been struck out on this score alone as there is no way that he could have proved his case without joining those officials.
In respect of Issue No.2, the basis of the appellant’s petition is election malpractices, id est, collusion between INEC officials and the APP agents to divert electoral materials to unknown destinations where thumb-printing of ballot papers were done and falsification of results. No doubt, they are all allegations of crime. It is settled that where an allegation of crime is made in a civil proceeding that the allegation must be proved beyond reasonable doubt. In Nwobodo v. Onoh (1984) 1 SCNLR 1 (1984) 1 All NLR 1 at p. 2, the Supreme Court observed as follows:-
“I think, at this stage, I may say that I accept the submission of Chief Williams that there is in law rebuttable presumption that the result of any election declared by FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption.
In my view, where such denial is based on allegation of crimes against the FEDECO officials responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt.
See also Omoboriowo v. Ajasin (supra). In respect of Ikun/Etono Ward P.W.7 testified that materials were distributed and that some boys carried the materials to Aya’s house and that the materials for Ikun were taken to Chief Sam Bassey’s house and that he went and saw them filling the results.
In respect of Erei South, P.W.4 said that the materials were diverted and that he was assaulted. He said that there was no election but he did not say who diverted the election materials.
As regards Erei North, P.W.6 who said that he has sympathy for PDP said that up till 4p.m. that there were no materials and that he was later informed that they were highly ached (sic) to Agawan village and that he reported this to the Police. For Abayong ward, P.W.5 stated that they waited for the materials and that he later heard that they had been taken to Oban Ekpei’s house and that they went there and that they were chased away by thugs and that they began to thumb print the papers, that they then went back to their village and that they later heard that the APP won the election.
As for Agwagume ward P.W.2 said they left the Itu Agwagune where he was posted and that election did not take place because the “fracas started and security said the election would not hold in the area due to breach of peace” and that the election materials were taken back to the Local Government Headquarters and that he was surprised to hear the election result the following day. It was argued in the appellant’s brief that P.W.4, P.W.5 tendered Exhs. G. H, & L their voters cards to show that voting did not take place in their respective wards, and that Exhs. T – T12 and W- W32 were tendered through the respondents’ witnesses to show that those voters were not accredited as they did not vote and that the burden has shifted to the respondents to satisfy the tribunal that they accredited the voters and that election duly took place in those wards and that there was a burden on the respondents to produce the voters register to show that the voters were accredited. It was also submitted that the tribunal was wrong in imposing on the appellant the burden of producing evidence which are in the respondents’ custody and that section 149(D) of the Evidence Act should be invoked in favour of the appellant and that the non production of those evidence supports the appellants’ case that election did not take place in the 5 wards complained of.
The law on this issue is very clear and it is that the burden of proof lies on the party who asserts the affirmative of the issue and in the instant case in which there is an allegation of crime, the standard of proof is beyond reasonable doubt. The appellant asserted that there was no election and that there were election malpractices, it is for the appellant to lead all available evidence to establish those allegations. The argument that the appellant having led evidence to show that P.W.4, P.W.5 and P.W.6 did not vote and that some voters’ cards were not accredited that the onus of proof has shifted on the respondents to satisfy the tribunal by producing the voters register to show that the voters were accredited has no basis in law.
The voters register is a public document in the official custody of the INEC and if it is relevant to the appellant’s case, it is the appellants’ duty to subpoena the INEC to produce the said voters register and if the INEC does not produce the document, it should be compelled to do so by the tribunal. This, the appellant has failed to do.
The tribunal’s decision can not be faulted in any way. It had evaluated all the evidence before it and found that the appellant has failed to discharge the burden of proof that is placed upon him by the law and that is proof beyond reasonable doubt. On the whole, I am of the view that the appeal is unmeritorious and that it should be dismissed.
In the result, the appeal is hereby dismissed. The 1st respondent is entitled to costs which I assess and fix at the sum of N3,500.00.
Other Citations: (1999)LCN/0640(CA)