Peoples Democratic Party (Pdp) Vs Independent National Electoral Commission & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

John Inyang Okoro, J.s.c.

This is an appeal against the judgment of the Court of Appeal, sitting at Enugu delivered on the 26th day of July, 2014 wherein the court dismissed the appeal of the appellant. The Court of Appeal upheld the decision of the Election Tribunal that the gubernatorial election in Anambra State on the 16th, 17th and 30th November, 2013 was held in substantial compliance with the provisions of the Electoral Act, 2010 (as amended) and affirmed that the 25th Respondent was the winner of the election. Let me briefly state the facts leading to this appeal. The 1st respondent herein, the Independent National Electoral Commission (INEC) gave notice of election for the office of the Governor of Anambra state scheduled to take place on 16th November, 2013. The election was duly conducted as scheduled, save in Obosi Ward in Idemili North Local Government Area where the election was conducted on 17th November, 2013. Also, in 216 out of the 4,608 polling units in Anambra State, the election was postponed and was successfully concluded as supplementary election on 30th November, 2013 when the final result was declared. The Appellant sponsored one Mr. Tony Nwoye to contest the election under its umbrella while the 25th respondent contested the said election on the platform of the All Progressive Grand Alliance while twenty one (21) other political parties fielded candidates in the said election. At the end of the election, the 25th respondent was declared duly elected and was returned by the 1st respondent. Dissatisfied with the outcome, the appellant initiated an election petition at the Governorship Election Petition Tribunal sitting at Awka by a petition dated 18th December, 2013 and filed on 20th December, 2013. Upon receipt of the petition, the respondents filed their PAGE| 4 respective replies. At the end of hostilities, the Tribunal dismissed the appellant’s case and confirmed the declaration made by the 1st respondent. On an appeal to the Court of Appeal, the lower court affirmed the decision of the Tribunal. The appellant has further appealed to this court. Notice of appeal was filed on the 8th of August, 2014 which contains seven (7) grounds of appeal. From the seven grounds of appeal, the appellant has formulated three issues for the determination of this appeal. The issues are as follows:-

1. Whether the appellant did not prove its allegation that the 25th respondent in violation of Section 31(5) and (6) of the Electoral Act 2010 (as amended) gave false information regarding his possession of multiple voter’s cards and whether such allegation is a criminal allegation requiring proof beyond reasonable doubt. (Encompassing Grounds 2, 3, and 5 of the grounds of appeal).
2. Whether the INEC letter to the 25th respondent, Exhibit WO5, is a private document. (Ground 4).
3. Whether the appellant proved that the acts of non-compliance with the provisions of the Electoral act substantially affected the outcome of the election (Based on ground 6 of the grounds of appeal). On page 4, paragraph 3:2 of the appellant’s brief, the learned Counsel for the appellant Chief A. O. Ajana states that the appellant abandoned grounds 1 and 7 of the grounds of appeal.

It is trite that where no issue is distilled from any ground of appeal, such a ground is deemed abandoned and liable to be struck out. Accordingly grounds 1 and 7 of the grounds of appeal, having been abandoned, are hereby struck out. In the brief of the 1st to 24th respondents, settled by Chief Adegboyega Awomolo, SAN, leading other counsel, three similar issues are distilled but couched slightly differently. They are:

1. Whether the Court of Appeal was right in holding that the appellant failed to prove its allegation of declaration of false information against the 25th respondent which is contrary to Section 31(5) and (6) of the Electoral Act 2010 (as amended).
2. Whether the 1st respondent’s letter to the 25th respondent, exhibit W05, is a private document.
3. Whether the Court of Appeal was right in holding that the appellant had not proved the allegation of substantial non-compliance alleged and pleaded in its petition which would have affected the outcome of the election

The learned Senior Counsel for the 25th respondent, Dr. Onyechi Ikpeazu, SAN, leading other counsel, had decoded two issues only, which are as hereunder reproduced.

1. Whether the Court of Appeal was correct in holding that the Appellant failed to establish by the requisite standard of proof that the 25th respondent was not qualified to contest the Anambra State Governorship election.
2. Whether the Court of Appeal was correct in holding that the appellant failed to establish the effect of non-compliance on the result of the election. The 26th respondent filed its brief of argument through its learned Senior Counsel P.I.N. Ikwueto, SAN leading others, but that brief has been challenged by way of a preliminary objection filed on 3rd September, 2014 by the learned counsel for the appellant.

In the main, the objection is to the effect that the 26th respondent’s brief of argument is incompetent and ought to be struck out having been filed out of time. It is the contention of the learned Counsel for the appellant that appellant’s brief having been filed on the 22nd August, 2014 and served on the 26th respondent on the same date, the 26th respondent’s brief filed on 27th of August, 2014 was out of time. This, according to him, is in view of the provision in paragraph 6 of the Practice Directions on election appeals to the Supreme Court which stipulates that the respondent shall file in the court, his own brief of argument within 5 days of the service of the appellant’s brief. Learned Counsel submitted that the 5th day expired on 26th August, 2014. He urged this court to strike out the brief of the 26th respondent, relying on the cases of Action Congress of Nigeria (ACN) V. Rear Admiral Murtala Nyako & Ors SC/409/2012 and Nwankwo V Yar’adua (2010) 12 NWLR (Pt.1209) 518 at 588 paras E-G. In response, learned Senior Counsel for the 26th respondent, submitted that the day of occurrence of an event should not be reckoned with in computing time as statutorily provided by S.15(2)(a) of the Interpretation Act. He cited the cases of Abubakar V Yar’adua (2008) 4 NWLR (Pt.1078) 465 at 511 – 515, Akpan V Bob (2010) 17 NWLR (Pt. 1223) 421, Amaechi V INEC (2008) 5 NWLR (Pt.1080) 227 and Ekpenotu V Ofegobi (2012) 15 NWLR (Pt. 1323) 276 in support.

There is no doubt that the appellant’s brief was served on the 26th respondent on the 22nd August 2014 and that it did not file her brief until 27th August, 2014. Paragraph 6 of the Practice Directions (Election Appeals to the Supreme Court) No. 33 of 2011 stipulates that:-

“The Respondent shall file in the court his own brief of argument within 5 days of the service of the Appellant’s brief. “

It has been stated in quite a number of decisions in this court that election matters are sui generis and as such must be conducted strictly in compliance with the rules guiding them. Thus by Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) this Court shall hear appeals from the Court of Appeal arising from election matters within sixty (60) days from the date of the delivery of the judgment appealed against. In order to regulate and manage the 60 days allotted by the constitution, the Practice Directions has prescribed time within which each party is to comply with the processes leading to the hearing of the appeal. It is thus my view that in the circumstance such as this, no party is allowed to default and then turn around to plead the Interpretation Act. The combined effect of section 285(7) of the 1999 Constitution (as amended) and paragraph 6 of the Practice Directions is that they limit the doing of any act to the period prescribed therein. Any action done outside the period prescribed is, to say the least, a nullity. The use of the word “shall’ in paragraph 6 of the Practice Directions, makes it mandatory. No party or this Court has any discretion in the matter. The 26th respondent was served on 22nd August, 2014. Its time started to run from that same date irrespective of the fact that it was served at 4.00 pm or thereabout. Accordingly it’s time for filing its brief expired on 26th August, 2014. The subsequent filing of the brief on 27th August, 2014 was done outside the time allowed by the Practice Directions. See, CPC V INEC (2011) 18 NWLR (Pt.1279) 493; ACN V. Nyako (supra). On the whole, I hold that the brief of the 26th respondent filed on 27th August, 2014, having been filed in flagrant disobedience to paragraph 6 of the Practice Directions is incompetent and is hereby struck out. The preliminary objection is thus upheld. Apart from the preliminary objection which I have just concluded, there are two other motions which ought to be sorted out before resolving the issues in this appeal.

The first was filed by the 25th respondent on 25th August, 2014 seeking an order striking out particulars 1, 2, 3, 4, 5 and 6 of Ground 6 of the grounds of appeal for, according to the learned senior counsel, not being related to the complaint in the grounds of appeal. The second motion was filed on 29th August, 2014 by the appellant praying the court to strike out certain paragraphs of the 1st – 24th respondent’s brief of argument for being incompetent. The paragraphs are 4.01, 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.13, 4.14, 4.15 and 4.16, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22 and 6.23. PAGE| 7 I intend to address the issues raised in the two motions along with the issues submitted for the determination of this appeal. Where any ground of appeal is found to be incompetent, it shall be shuck out along with the issue distilled from it without necessarily writing a separate ruling on it. This is so because time is of essence in this appeal, the preparation of the processes having almost eaten up the 60 days allowed by the constitution for the hearing and determination of this appeal. Also, any paragraph of the 1st – 24th respondents’ brief of argument thereof which does not support the issue for determination, shall be discountenanced with or without any specific mention of same. I think it is the practice of this court to do so and does not really need a motion on notice to address it. I shall now proceed to determine this appeal based on the three issues submitted by the appellant. The first issue is whether the appellant did not prove its allegation that the 25th respondent in violation of section 31(5) and (6) of the Electoral Act, 2010 (as amended) gave false information regarding his possession of multiple voters card and whether such allegation is a criminal allegation requiring proof beyond reasonable doubt. Arguing this issue, the learned Counsel for the appellant submitted that its case that the 25th respondent was not qualified to contest the election is founded on Section 31(5) and (6) of the Electoral Act, 2010 (as amended). That it stems from the fact that the 25th respondent supplied false information to the first respondent in his nomination documents – Exhibits PP016 and the INEC CVR form – Exhibit PP015. He contended that the 25th respondent did more than two voters registration and obtained three voter’s cards without disclosing same. He opined that the 25th respondent signed exhibit PP015 (CVR form) claiming that he had not been registered previously, whereas when he was filing that form he had registered in Lagos and had the Lagos voter’s card. The appellant, according to counsel, had relied on exhibits PP015, PP016, PP017, PP018, PP020, RRA 024 and RRA 025. On the defence of the 25th respondent that when he claimed in exhibit PP015 (CVR Form) that he had “not been registered as a voter before”, he was referring to the fact that he had not been registered in Anambra State, learned counsel submitted that by Section 128 of the Evidence Act, 2011, the 25th respondent cannot, by oral evidence, amend or add to the content of the CVR form. He cited the cases of Igboke V Emordi (2010) 11 NWLR (Pt.1204) 1 at 35, Allied Bank Nig. Ltd V Akabueze (1997) 6 NWLR (Pt. 509) 374 and Okoya V Santili (1994) 4 NWLR (Pt.338) 256.

On the holding of the court below that allegation of giving false information to Independent National Electoral Commission is not civil but criminal in nature by virtue of Section 24(1) of the Electoral Act, 2010 (as amended). Learned counsel submitted that giving false information to Independent National Electoral Commission may occasion civil and criminal consequences. That where a wrong gives rise to both civil and criminal liabilities, a litigant can pursue the civil right of action, particularly where he is not responsible for criminal prosecution. That by coming under Section 31(5) and (6) of the Electoral Act, the appellant is not alleging the 25th respondent of any crime. To further buttress his argument, learned Counsel for the appellant submitted that Section 149 of the Electoral Act which empowers an Election Tribunal to make a recommendation for the prosecution of an offence disclosed during the trial of an election petition buttresses their argument that Section 31(5) and (6) of the Electoral Act makes provision for only civil liability. He then urged this court to resolve this issue in favour of the appellant. In response, the learned Senior Counsel for the 1st – 24th respondents submitted that there is nowhere in Section 31(5) and (6) of the Electoral Act, 2010 (as amended) where it is contemplated that the issue of either lying on oath or providing false information, at the pre-election stage, will be an issue for determination before the Election Tribunal. Learned Senior Counsel argued that the section is meant to be within the function of the State High Court, Federal High Court or the High Court of the Federal Capital Territory. That the Election Petition Tribunal, not being mentioned there, is excluded, relying on the cases of Elijah Ameh Okewu V FRN (2005) ALL FWLR (Pt. 254) 858 at 872, A.G. Abia State V A.G. Federation (2005) ALL FWLR (Pt. 275) 414 at 452, A.G. Ondo State V. A.G. Ekiti State (2001) FWLR (Pt.79) 1431, Ogboru V Ibori (2005) 13 NWLR (Pt.942) 819. Referring to Section 13(1), (2) and (3) of the Electoral Act the learned Senior Counsel submitted that the 25th respondent properly applied for and transferred his registration from Lagos to Anambra.

As regards qualification and disqualification of the 25th respondent, he submitted that there is nothing in Sections 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that speaks about lying or presenting false information. He cited the case of ANPP V Usman (1990) ALL FWLR (Pt. 463) 1292, Ugwu V Ararume (2007) 12 NWLR (Pt.1048) 367 at 478.

As regards issue of allegation of declaration of false information, he submitted that the 25th respondent’s statement that he was never previously registered would not likely to be referring to his registration at Lagos where he formerly applied to transfer his voters card to Anambra. He concluded that he never registered more than once as a voter for the purpose of the Anambra Governorship election. He urged this court to hold that the appellant failed to prove multiple registrations. He further submitted that any allegation of double or multiple registrations is criminal in nature punishable with fine or imprisonment or both. He submitted that it must be proved beyond reasonable doubt which the appellant failed to do. He urged this court to resolve this issue against the appellant. The learned senior counsel for the 25th respondent also made submissions in opposition to this issue which are akin to those made by learned Counsel for the 1st – 24th respondents. I do not intend to summarise it here except as may be referred to in the course of resolving this issue.

The appellant filed a reply brief to the 1st – 24th respondents’ brief of argument. In it, learned Counsel for the appellant submitted that having not appealed against the finding by the Court of Appeal, the 1st – 24th respondents cannot raise the matters canvassed at pages 5 – 8 paragraphs 4.01 – 4.08 and pages 11 – 12 paragraphs 4.13 – 4.16. He then urged this court to strike out those paragraphs. From the language and manner issue No. 1 is couched, gravamen of it is that the 25th respondent violated Section 31(5) and (6) of the Electoral Act 2010 (as amended). In fact, in paragraph 4.4 of the appellant’s brief, it is succinctly stated as follows: “Appellants’ case that the 25th Respondent was not qualified to contest the election is founded on section 31(5) and (6) of the Electoral Act 2010 (as amended).” Since Section 31(5) and (6) of the Electoral Act 2010 (as amended) is the engine of this issue, I shall reproduce it here for ease of reference. It states: “31(5) –

Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false. 6. If the court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.” The above provision is very clear and unambiguous. The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole. See; Onashile V Idowu (1961) 2 SCNLR 53, Ugwu V Ararume (2007) 12 NWLR (Pt.1048) 367. Adejumo V Military Governor of Lagos State (1972) 3 SC 45; Ojokilobo V Alamu (1967) 3 NWLR (Pt.61) 377. Thus Section 31(5) and (6) of the Electoral Act (supra) states clearly that whoever intends to challenge the information given by a candidate in an election, may file a suit at the Federal High Court, High Court of a State or of the Federal Capital Territory. It did not say that such a person should approach an Election petition Tribunal. In fact sub-section 6 is couched in pre-election flavor when it says: “6.