Peoples Democratic Party V. Independent National Electoral Commission & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C.

The appellant challenged the return of the 2nd and 3rd respondents as the duly elected Governor and Deputy Governor respectively of Zamfara State in the gubernatorial election conducted on 26/4/2011. The respondents filed their respective replies to the petition in which they encompassed their objections to the Petition.

The trial Tribunal ordered that the objection would be heard together with the substantive petition. The petition was heard on its own merit after which the parties filed their respective written addresses. The respondents argued the objections in their written addresses while the appellant also replied. The trial Tribunal in its judgment up held the objection and Struck out paragraphs 12, 17, 18, 19, 22, 27, 29, 30, 31, 32, 33, 34, 36, 37, 41, 42, 43 and 44 of the petition.

In all, the trial Tribunal held that the petitioner has failed to prove the allegations in its petition and same was dismissed.

Dissatisfied with this decision the petitioner unsuccessfully appealed to the Court of Appeal Sokoto Division, hereinafter called the lower court. The lower court affirmed the decisions of the trial Tribunal and dismissed the appeal.

The lower court also considered the affected paragraphs of the petition and held as follows:

“The paragraphs above in my view are too general, too generic and lacking in any particularity as they are not tied to any particular polling unit or particular number of people who were said to have disenfranchised. The fact that a party can file further particulars orderly in a reply the averments in the vague paragraphs cannot cure the defect.

The pleadings must not be general it must be Specific as to facts. It is settled law that a petitioner is under obligation to plead particulars of fraud, or falsification without which the allegation is a nonstarter”.

Finally the lower court also held that the appellant has not proved the allegations in its Petition. It is as a result of this decision that, the appellant has appealed to this Court.The appellant in its brief of argument distilled five issues for determination as follows:

“(1) considering the clear provisions of section 140(4) of the Electoral Act, paragraphs 17(1) and (2), 47(1) and 53 of the First schedule (to the Electoral Act) vis-a-vis the provision of paragraph 12(5) of the same First schedule to the Electoral Act, whether the lower court was not in grave error in holding as it did that the striking out by the trial Election Tribunal of paragraph 12, 17,18, 19, 22, 27, 29, 30, 31, 32, 33, 34, 36, 37, 41, 42, 43, and 44 of the petition was/is justified-Grounds 2, 3, 4, 8, 9 and 10.

(2) Whether the lower court was not in grave error in its conclusion in relation to the joinder of issues on the struck out paragraphs by the 2nd-4th Respondents, as well as its rationalizing the basis for their being struck out. – Ground 11.

(3) Has the Supreme Court decision in Nwankwo v. Yar’adua (2010) 12 NWLR (pt. 1209) 518 been abrogated or replaced by paragraph 12(5) of the First Schedule to the Electoral Act – Ground 1.

(4) Whether or not compliance with the provisions of the Election Tribunal and Court practice Directions 2011 are not mandatory for the Parties – Ground 5.

(5) Considering the circumstances of this case, the state of pleadings and evidence adduced, including the abandonment of its pleadings by the First Respondent, whether the lower court was not in error in holding that the Appellant did not prove its case. – Grounds 6, 7, 12 & 13”.

The 1st respondent in its brief of argument formulated three issues for our consideration of the appeal thus:-

“1. Whether the Justices of the court of Appeal misconceived paragraphs 12 (5) 17(1) and (2) of the 1st schedule to the Electoral Act (as Amended) and the decision in NWANKWO V. YAR’ADUA (2010)12 NWLR (pt. 1209) in affirming the 18 paragraphs of the petition struck out by the Election Tribunal. Relates to Grounds 1, 2, 3, 4, 8, 9, 11, 12, 13 of the amended Notice of Appeal.

2. Whether the Court of Appeal was right in affirming the decision of the Tribunal that the Appellant failed to discharge the burden of proving the allegations of malpractice, falsification of results and substantial non-compliance with the Electoral Act, in the Governorship Election of 26th April, 2011 in Zamfara State (Relates to Ground 7 of the Amended Notice of Appeal).
3. Whether the lower courts were right in rejecting the evidence of PW34 an ‘expert’ witness, which evidence, discredited and shown to contradict the Electoral Forms EC8A and EC8B, tendered before the court, by the Appellant as the source documents, used by the ‘expert’ in arriving at its report, Exhibit P72. (Relates to Grounds 6 of the Amended Notice Appeal.”

The 2nd to 4th respondents also formulated four (4) issues for determination as follows:

1. Whether the lower court was not right in affirming the decision of the trial tribunal that the fact that the final written address of the 2nd-4th Respondents exceeded the stipulated forty paged by one did not lead to miscarriage of Justice and in upholding its use by the trial Tribunal.
2. Whether the lower court was not right in the view and interpretation it placed on the Provisions of paragraphs 12(5), 17(1) and 53(5) of the 1st Schedule to the Electoral Act 2010 (as amended), the applicable provisions of the Federal High Court Rules and also in holding the decision in NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518 having been decided before the insertion of paragraph 12(5) of the 1st schedule to the Electoral Act 2010 was clearly distinguishable from the facts and circumstances of this case.
3. Whether the lower court was not correct in upholding the striking out of paragraphs 12, 17, 18, 19, 22, 27, 29, 30, 31, 32, 33, 34, 36, 37, 41, 42, 43, and 44 of the petition and in further holding that the striking out did not lead to any miscarriage of Justice having regard to the fact that the trial Tribunal still considered the case of the appellant which was essentially the same even after striking out of the said paragraphs of the petition.
4. Whether the lower court was not right having regard to the materials at its disposal in endorsing the dismissal of the case of the appellant by the trial Tribunal on the face of lack of proof of the allegations made, therein, unreliability of the testimony of PW34 and exhibit P72 and that there was no abandonment of the 1st Respondent’s Reply before the Tribunal.

The gist of the arguments of the senior counsel to the Appellant are to the effect that the lower court was wrong to have held that the trial Tribunal was right in striking out the affected paragraphs, when issues have been joined. The respondents denied and traversed the affected paragraphs and thus reached a point of litis contestatio, the case of Eronini v Ihiuku (1989) 2 NWLR (pt. 10) 46 at 61, Okorodudu V. Okoromadu (1977) 3 SC p21, Young Shall Grow Motors Limited v. Okonkwo (2010) 15 NWLR (pt. 1217) 524-551 were cited amongst others that if the said paragraphs were not clear the respondents would have applied for more particulars.

It was further contended that the lower court’s reliance on paragraph 12(5) of the 1st schedule was a misconception and that the applicable provisions are paragraph 17(1) and (2), 49(1) and 53 of the 1st Schedule while paragraph 12(5) is a general provision.

It was further contended that the reliance placed on order 13 Rules 4 (4) of the Federal High court Rules was wrong as it was not applicable to this appeal. It was further contended that by the provisions of paragraph 47(1) all applications shall be moved during pre-hearing session except in extreme circumstances.

Senior counsel also submitted that it was wrong of the lower court to hold that the decision in Nwankwo V. Yar’adua (Supra) is no longer a good law as the decision has not been overruled by this court or abrogated by any Act of parliament. It was also submitted that the lower court was wrong in holding that the filing of written address in excess of 40 pages mandatorily provided in the Election Tribunal and court Practice Direction did not occasion any miscarriage of Justice; that the provision of paragraph 5(a) of the Practice Direction demands full compliance from the parties, citing, Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 342, Nkerika v. Joseph (2009) 5 NWLR (P1.1135) 506 at 576. It was also the appellant’s submission that the 1st respondent is deemed to have abandoned its pleading for failing to adduce evidence in support hence, the appellant’s case was deemed, to have been admitted and it needs no further proof, cites Section 123 of the Evidence Act and the case of Ndukwe v. LPDC (2007) 6 NWLR (Pt.1026) 1 at 56. A-G. Anambra v. A. G. Federation (2005) 9 NWLR (pt.931) 572 at 611. It was also submitted that the trial Tribunal could not be said to have evaluated the evidence adduced at the trial having struck out the affected paragraphs that contained the substance of the appellant’s case and therefore urged this court to invoke its power under the provisions of Section 22 of the Supreme Court Act to hear this case and allow the appeal.

The learned senior counsel to the 1st respondent submitted that the trial Tribunal was right in hearing the objection with the substantive case, referring to paragraph 12 (5) of the 1st schedule to the Electoral Act. The said provision was not contained in the electoral Act 2006 and it was not considered in the case of Nwanko V. Yar’adua (supra). It was further contended that the respondent did not ask for further and better particulars as it was needed, and that the provisions of paragraph 17 (1) of the 1st schedule is discretionary as it starts with the word “if”. It was also contended that the respondents have no obligation to assist the appellant to state his case as required by law; the case of Olawepo v. Saraki (2009) All FWLR (pt.498) 256 was cited. Senior counsel pointed out that all the parties addressed the tribunal on this issue even in the appellant’s awareness of its unlawfulness, thus where a party agreed to a procedure he cannot be heard to complain of prejudice by such procedure merely because he lost in the lower court, cited Noibi V. Fikolati (1987) 1 NWLR (pt.52) 619 at 632. Learned counsel submitted that failure of the appellant to supply the particulars in the face of clear notice by the respondents forecloses from leading evidence thereon, he refers to Nwachukwu V. Enegwe (1999) 4 NWLR (pt.600) 629 at 635.

Learned senior counsel further submitted that the allegations of the petitioner in its entirety centred on the purported misconduct on the part of agents of the 3rd and 4th respondents who allegedly colluded with agents of the 1st respondent and returned false result in the contested Local Government Areas. Thus the allegations of the appellant were centred on criminality. He refers to Adun v. Osunde (2003) 16 NWLR (pt.847) 643 at 672, Section 135 of the Evidence Act 2011, Nwobodo v. Onoh (1980) 1 All NLR 1 at 2.

However, the appellant did not call a single voter with voter’s card who was prevented from voting and that the exhibits tendered were dumped in the Tribunal without demonstrating or relating it to any part of the appellant’s case. He relied on the case of Terab V. Lawan (1992) 3 NWLR (pt. 231) 569 at 590.

Learned senior counsel submits that the burden of proof does not shift till the appellant has sufficiently discharged the burden placed on it by law, until then the respondents are not at liberty to call evidence in rebuttal; that the respondents cannot lead evidence to rebut nothing. The case of (i) Orji V. Ugochukwu (2009) 14 NWLR (pt. 1161) p 209 at 308, (ii) Honika Saw mill Ltd V. Okojie (1994) 2 SCNJ 86 at 89 and 97.

It was finally submitted that this is not a case that warrants the invocation of Section 22 of the Supreme Court Act as the appeal went through full trial at the lower court and after the proper evaluation of the evidence. See Obi V. INEC NSE QLR Vol. 31 (2009) 738/836.

Learned senior counsel to the 2nd – 4th respondents submits that the provisions of paragraph 5(a) of the Practice Direction 2011 gives the Tribunal the direction either to discountenance or not to countenance any written address whose pages exceeded page 40, hence the only duty left to the tribunal was to consider the interest of justice, in the instant case the Tribunal judicially and judiciously exercised discretion to entertain the 2nd – 4th respondents written address, citing Abubakar V. Yar’adua (2008) All WLR (pt. 404) 1409 at 1149-1450. Learned senior counsel pointed out that the trial Tribunal and the lower court did not over-rule the decision in Nwankwo V. Yar’adua (supra) but merely distinguished the case from this one as the provisions of paragraph 12 (5) which is the subject of consideration in the instant appeal was enacted after the decision in Nwankwo case. Senior counsel referred to the grounds of objection stated in the reply and contended that they are jurisdictional issues which can be taken at any stage of the proceedings. He referred to Nwankwo v. I. S. C. (1990) 2 NWLR (pt. 136) 608 at 726 -729, and Kotoye v. Saraki (1994) 7 NWLR (pt.357) 414 at 466.

It was further contended that the provisions of paragraph 12 (5) of the 1st schedule was specific and as such the court should not make a round about in its interpretation, citing the case of Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) at 423. It was therefore submitted that the lower court was not only entertaining the objection but also in striking out the offending paragraphs pursuant to paragraph 12 (5) of the 1st schedule. The fact that the offending paragraphs have been denied in the respondent’s reply is not a reason to cure the inherent defect. It is further submitted that the material facts that are significant and essential to electoral vices as misapplication of votes, acts of violence, multiple thumb-printing, falsification of results were not pleaded. It was further contended that despite the striking out of the paragraphs of the petition, the tribunal still went ahead to consider the substratum of the petition, and the tribunal found that even after striking out the paragraphs in question, the remaining paragraphs were still germane to the determination of the petition and the finding of the Tribunal was not appealed against. It was therefore submitted that this is not a case where the Supreme Court can invoke its powers under Section 22 of the Supreme Court Act to hear the petition.

Learned senior counsel further submitted that the burden of proving the petition is on the appellant and this burden does not shift until the appellant had adduced credible evidence in proof of its petition and dislodge the presumption in favour of the correctness of the result raised by Section 68 (1) of the Electoral Act 2010 (as amended) and section 168 (1) of the Evidence Act 2011. He refers to Buhari v. INEC (2008) 19 NWLR (pt.1120) 246 at 320, Awuse V. Odili (2004) 8 NWLR (pt. 876) 641 and Chime V. Onyia (2009) 2 NLR (pt.1124) 1.

My lords the concurrent findings of the two lower courts which are not perverse, and the trial Tribunal to the effect that the appellant failed to discharge the burden placed on him by law has not occasioned any miscarriage of justice. It was based on the evidence placed before the court and the law.

The appellant also filed a reply brief in which it further elaborated its arguments on issues already covered in its brief of argument.

The main contention of the appellant in this appeal my lords is that the lower court was wrong to affirm the decision of the Tribunal that struck out various paragraphs of the petition in its final judgment. It was its contention that the trial Tribunal wrongly relied on the provisions of paragraph 12 (5) of the 1st schedule and that by the provisions of paragraph 47 (1) all motions shall be moved at the pre-hearing session except in extreme circumstances with the leave of Tribunal. Paragraph 12 (5) of the 1st schedule of the Electoral Act 2010 provides as follows:-

“A respondent who has objection to the hearing of the petition shall file his reply and state the objection thereon and the Objection shall be heard along with the Substantive Petition” (italics mine)

While paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 (as amended) provides thus:-

“(i) No motion shall be moved and all motions Shall come up at the pre-hearing session Except in extreme circumstances with Leave of Tribunal or Court.”

(italics mine for emphasis)

With tremendous respect, these paragraphs of the 1st schedule apply to the different situations and proceedings i.e.

(i) Where a party approaches the Tribunal with objection by way of motion, such motion shall be moved and determined during pre-hearing session except in extreme circumstances with the leave of the tribunal, that is position under the provisions of paragraph 17 (i) of the 1st schedule and

(ii) Where the objection is embedded or stated in the reply. Such objection shall be heard along with the substantive case.

In the instant case or appeal, the respondent adopted the latter procedure by stating the objection in their reply and argued same in their final written address and the appellant also replied in its own written address.

In my view, the provisions of the two paragraphs are clear and unambiguous, and are not subject to any interpretation and I only wish to state that where the law provides two methods or procedures for doing a thing a party can choose any of the methods so provided. The respondents in this case elected to raise their objection pursuant to paragraph 12 (5) of the 1st schedule and they are entitled to so elect. The paragraph is to ensure timeous determination of the petition on this point the lower court held as follows:-

“Paragraph 12(5) stipulated that a respondent who has an objection to the hearing of the petition shall file his reply and state the objection which will be determined with the substantive petition.

The phrase “hearing the petition” cannot be limited to only after pleadings have been exchanged. Paragraph 12 (5) of the 1st schedule is intended from its composition to reflect the sui generis nature of election matters. The Mischief obviously is to ensure objections raised do not derail the determination of the merit of a case by undue and unwarranted delays occasioned by preliminary objection”.

With due respect, I entirely agree with this Statement of Law adumbrated in the Judgment of the lower court.

Learned senior counsel further submitted that the lower court was in error when it overruled the Supreme Court’s decision in Nwankwo v. Yar’adua (supra). I have carefully and closely perused the decision of the lower court and I was un-able to lay my hand on where the lower court overruled the decision of this court. On this point the lower court held as follows:-

“What then was the decision of Nwankwo V. Yar’adua Supra which Learned senior counsel for the appellant contends, the Tribunal should have relied on but neglected to do so. The Supreme Court in that case on when an objection challenging the competency of election petition shall be heard and determined immediately that defect on the face of the election petition notified and before any further steps are taken.”

He continues –

“I agree with the decision of the tribunal that as the time Nwankwo V. Yar’adua (supra) was determined paragraph 12 (5) was not in existence and not considered. It is settled law that at the time a cause of action arose determines the action. When the petition was filed paragraph 12 (5) of the 1st schedule had came into effect the Tribunal rightly relied on Paragraph 12 (5)”.

In my view, this is a correct statement of the law. The lower court only distinguished the decision in NWANKWO V. YAR’ADUA supra, from the instant case and it is also correct that at the time Nwankwo’s case was decided the provisions of paragraph 12(5) of the 1st schedule was not in existence, hence the decision cannot be an authority for the interpretation of paragraph 12(5) of the 1st schedule to the Electoral Act 2010 (as amended).

On whether the affected paragraphs were rightly struck out, I have read the affected paragraphs and found that they relate to allegations of non-voting in several polling points, disruption of election non-conclusion of election thumb-printing of ballot papers, falsification of election results wide spread disruption, irregularities and malpractice without providing particulars or the polling units where the alleged malpractices took place. The lower court was therefore right where it held as follows:

“The paragraphs above in my view are too generic, vague and lacking in any particulars as they are not tied specifically to any particular polling unit or particular number of people who were alleged to have been disenfranchised. The fact that a party can file further particulars or deny in a reply the averment in the pleadings must not be general it must be specific as to facts. It is settled law that a petitioner’s obligation to plead particulars of fraud or falsification without which the allegation is a non-starter.”

I have nothing to add to this statement of law as advanced above, and I adopted it as mine.

Finally, the provisions of paragraph 5 (a) of the Practice Directions is subject to the discretion of the Tribunal, after all the paragraphs were enacted to assist the Tribunal to reduce the work load, and where it exercised its discretion in countenancing a written address in excess of 40 pages, it is my view that such discretion does not occasion miscarriage of Justice.

Finally, I hold that the appeal lacks merit and is accordingly dismissed. The judgment of the lower court delivered on 22/12/2011 is hereby affirmed because there are two concurrent decisions of the lower courts which are correct and never perverse. I make no order as to costs.

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SC.6/2012