Sen. Daniel I. Saror & Anor V. Hon. Gabriel Torwua Suswam & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The record before this Court depicts that on the 26th April, 2011, the 3rd Respondent, in compliance with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) conducted an election to the office of the Governor of Benue State in which the 1st Appellant, the 1st Respondent and other candidates participated on the platform of their respective political parties.

At the conclusion of the election, the 1st Respondent was declared and returned as the winner of the same. Being distraught with the result of the election and in consequence thereof, the Appellants filed an election Petition before the Governorship Election Tribunal, Benue State, sitting at Markudi on the 17th May, 2011, to which the Respondents responded by filing their respective Replies to the Petition. The record further portrays that at the hearing of the said Petition, Preliminary Objections were, individually, raised by the Respondents which were upheld by the Tribunal.

Then appeals were lodged against the same before this Court which were allowed. The said decisions were appealed against to the Supreme Court, which, after hearing the same on 28/11/11 dismissed them and, then, ordered that hearing of the petition be conducted before another panel of Judges. It was based on the said Supreme Court judgment that the petition was restored to the Tribunal.

However, at the resumed hearing of the Petition before the Tribunal, and, in particular, on the 12th December, 2011, the Appellants, as Petitioners, filed a Motion on Notice for judgment on the pleadings in their favour against the Respondents. The application was supported by an affidavit of fourteen paragraphs deposed to by the 1st Appellant. He averred at paragraphs 8 to 12 of the said affidavit, the following:-

“8. That on 28/11/2011, the Supreme Court, upon the appeals of the 1st and 2nd Respondents, dismissed the appeals and affirmed the judgment of the Court of Appeal.

9. That the petition initially had two grounds but it has been restored only in relation to ground one thereof.
10. That all the paragraphs or sub-paragraphs in the petition and documents/information referring to ground one are therefore the only ones relevant to the determination of the petition.
11. That with the failure of the consolidated preliminary objections of the Respondents relating to ground one of the petition, only portions of their respective replies relating to ground one are relevant to their defence of the petition.
12. That I was informed by my Counsel, C.S. Orpin Esq. of Glorious Lord’s chambers, 8, Konshisha Street, High Lever, Markudi, in his office on Monday, 12/12/2011 at 9:00 am and I verify believe him as follows:

(i) That my said Counsel has carefully considered the pleadings of the respective Respondents as they relate to ground one of the petitions.

(ii) That based on his assessment of the quality of the said pleadings of the Respondents, this application has become inevitable to save the honourable Tribunal the expense of an unnecessary full trial.

13. That it is in the interest of justice to grant this application.
14. That I depose to this affidavit in good faith and in accordance with the Oaths Act”.

The said Motion on Notice was moved, heard and considered by the said Tribunal, at the end, of which it opined thus;

“This application can be determined under a very narrow compass to wit “whether having regard to the state of the pleadings, especially the allegation contained in the Petition whether we can give judgment on the pleadings without the Petitioner leading evidence to prove the allegations raised at the petition”.

In this particular regard we wish to point out that the sole ground upon which the Petition is predicated is on the allegations of certificate forgery follows “the 1st Respondent never submitted any forged certificate or any false facts in his personal data Form CF001 to the 3rd Respondent for Election. The Educational qualification indicated in CF001 by the 1st Respondent are all genuine and authentic”.

Similarly, the 2nd Respondent in his reply in paragraph 3 denied paragraphs 8(i) and (ii). We quote it here in extenso, “The 2nd Respondent denies paragraph 8(i) and (ii) of the Petition and could put the Petitioners to the strictest proof of the averments therein. The 2nd Respondent denies that the 1st Respondent presented any forged certificate to the 3rd Respondent. The 2nd Respondent further states that all the Educational qualification indicated in INEC Form CF001 are genuine and met the Educational requirements for a person seeking Election under the office of Governor of a State. The 2nd Respondent further states that the Election was conducted substantially in accordance with the provision of the Electoral Act and that non-compliance complained of by the Petitioners (which is denied is not such as) will invalidate the result of the said Election”.

The 3rd and 4th Respondents in their replies also denied or traversed the averment of the Petitioners and aligned with 1st and 2nd Respondents in their Counter-Affidavit.

Taking together the forgoing pleadings or traversed by the 1st, 2nd, 3rd and 4th Respondents, can it be rightly said with the position of the 1st and 2nd Respondents stated that the Petitioners allegation of certificate forgery against the 1st Respondent was admitted or ineffectively denied.