Suit Number:CA/E/EPT/15/2008
Judges:OLUFUNLOLA OYELOLA ADEKEYE JCA (Presided) ABUBAKAR ABDULKADIR JEGA JCA JIMI OLUKAYODE BADA JCA ADAMU JAURO JCA
Counsel:Mike Okoye Esq. Ikechukwu Owoh Esq. - for the Appellant. Chief A. O. Mogboh SAN A. J. Offiah SAN, J. N. Edochie (Mrs.), P.M. B. Onyia Esq., Okenna Agubuzu
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Esq., C. J. Aneke Esq., Ifeanyi Okoli Esq. and Ikechukwu Onuoma
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Esq.) - for the 1st Respondent.
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Anthony I. Ani Esq. - for the 2nd - 3238th Respondents.
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SAULAWA JCA (Delivering the Lead Judgment): The instant appeal is against the judgment of the Governorship and Legislative Houses Election
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Tribunal holden at Enugu, in Enugu State, which wasdelivered on 18 January 2008. The appellants petition (NAGL/EPT/EN/GOV/37/2007) was dismissed
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by the lower Tribunal in consequence of the judgment in question. A
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It is common knowledge that gubernatorial elections were conducted on 14April 2007 in 13 (thirteen) out of the 17 (seventeen) Local Government Areas in Enugu State. Likewise, the gubernatorial elections in to the remaining 4 (four) Local Government Areas of Enugu State (i.e. Enugu South, Udi,
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Nsuka and Isi Uzo Local Government Areas) were later held on 28 April B
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2007. Both the appellant and the 1st respondent had contested the said
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elections on the platforms of their political parties, the Accord (A) and Peoples’ Democratic Party, (PDP) respectively. Apart from the appellant and the 1st respondent, 15 (fifteen) other candidates had equally contested
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the said elections under their respective parties’ platforms.
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At the conclusion of the elections in question, the 1st respondent was C
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accredited with a total of 811,798 votes and thus declared and returned as the winner thereof. On the other hand, the appellant was credited with a total of 15,287 votes.
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Not unnaturally, the appellant was dissatisfied with the result of the elections. He accordingly filed apetition (No. NAGL/EPT/EN/GOV/37 D 2007) in the lower Tribunal on 25 May 2007, praying for the following relief:
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32. That It may be determined and declared that the said 1st respondent Mr. Sullivan Iheanacho Chime was not validly elected or returned having not polled the highest number of
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lawful votes cast at the gubernatorial elections of April 14 E
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2007 and that the petitioner Mr. Ugochukwu Agballah be
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declared validly elected or returned, having polled the highest number of lawful votes cast at the gubernatorial election of
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April 14 2007 and having obtained one-quarter of the votes cast at the election in each of at least two-thirds of the Local
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Governments of Enugu State. F
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The 1st respondent, as well as the 2nd - 3238th respondents file their replies to the petition on 28 June 2007 and 26 June 2007, respectively. At the conclusion of the pre-hearing conference, hearing in the petition commenced on 19 September 2007. The appellant and one other person
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(Solomon Achikanu) gave evidence in proof of the petition as PW1 and G PW2. A total of 2558 carbon copies of the polling booths results (Forms EC8A) allegedly used for the April 14, 2007 Governorship elections for Enugu State, were also tendered and admitted at the appellants instance as exhibits P1 - P2558, respectively.
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On his own part, the 1st respondent called only one witness in the H
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person of Dr. (Mrs.) Anthonia Chiebonam Ekwo, the Logistic Officer, INEC
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Enugu State, who testified as RW1. The 2nd - 3238th respondents, on the other hand, called a total of seventeen (17) witnesses as RW2 - RW18,
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respectively. At theconclusion of the trial, the lower Tribunal in a unanimous judgment, delivered on 18 January 2008, held inter alia , thus:
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We agree with Dr. Ibik SAN at page 41 of his final address that the burden of proof is on the petitioner. Sincethe petitioner has failed to prove his petition, it is not even necessary to
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consider the respondents’ case. The petitioner has to succeed on the strength of his own case and not on the weakness of
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the defence: Awuse v. Odili (2005) All FWLR (Pt. 261) 248 at 313. Finally, it is quite obvious that with the resolution of all the two issues for determination against the petitioner, this
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petition is bound to collapse. Accordingly, this petition fails
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and it is hereby dismissed. Costs of N20,000.00 (twenty
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thousand naira) is awarded to each sets of respondents.
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Beingdissatisfied with the judgment of the lower Tribunal in question, the appellant filed this appeal on 24 January 2008 in the lower Tribunal. The notice of appeal was predicated on a total of 16 (sixteen) grounds of appeal,
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thereby praying the court for the following reliefs:
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An order of this Honourable Court allowing this appeal, setting aside the judgment of the Election Tribunal dated 18 January, 2008 dismissing the petitioner ’s petition and substitute the Tribunal’s judgment with an order declaring the petitioner as
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duly elected having obtained the highest number of valid votes cast at the election of 14 April 2007 and satisfied the
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requirements of the Constitution.
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It is rather instructive, that all the parties in this appeal have filed and
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served their respective briefs of argument. Theappellant’s brief, in particular, was filed on 28 February 2008. The 1st respondents’ brief, on the other
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hand, was filed on 6 March 2008. The 2nd - 3238th respondents’ brief was
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equally filed on 6 March 2008. A total of 13 (thirteen) issues have been formulated in the appellant’s brief for the determination of the appeal, to wit:
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Issue 1:
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3.1. Whether the Election Tribunal was right to have considered only the paragraphs of the petition outside the issues for determination. (Issue 1 is distilled from ground 1 of the grounds of appeal)
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Issue 2:
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3.2. Whether the Election Tribunal after having that the appellant abandoned paragraphs 31(a) and 31(b) of the petition was
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right to have relied on thesaid paragraph 31(b) thatthe appellant is challenging the authenticity of the result declared by
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Independent National Electoral Commission (INEC) and A therefore legally bound to produce two sets of results in evidence. And if the answer is in the negative.
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Whether the Tribunal was right to hold that since the appellant failed to produce two sets of results of the election in question
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in evidence, it cannot be determined whether the appellant in B
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fact obtained a majority of lawful votes, and accordingly
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resolved issue number 2 for determination against the appellant in favour of the respondents. This is to say, that the appellant did not in fact obtain a majorityof lawful votes of the electorate
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in Enugu State and did not fulfill the conditions In the constitution, and Governor of Enugu State. (Issue 2 is distilled C
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from ground VIII and XI of the grounds of appeal).
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Issue 3:
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Whether the Election Tribunal was right when it held that the petitioner has failed to prove that the 1st respondent was not duly elected by majority of valid votes cast at the election of D April 14 2007 for the Governorship in Enugu State (issue number 3 is distilled from ground III of the grounds of appeal)
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Issue 4:
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Whether the 1st respondent complied with the mandatory
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provision of paragraph 15 of the First Schedule to the Electoral E
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Act, 2006 and what is the effect of non-compliance with the
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said provision. (Issue number 4 is distilled from ground XIII of the grounds of appeal)
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Issue 5:
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Whether the Tribunal was right when it failed to consider the paragraphs of the petition that relate to the issue for F
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determination. (Issue number 5 is distilled from ground II of the grounds of appeal).
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Issue 6:
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Whether the decision of the Tribunal is not perverse since the Tribunal failed to evaluate the evidence called by the parties G and also failed to place the evidence of the petitioner and the respondents on an imaginary scale of justice before it came to
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the conclusion that the petitioner had not established his case. (Issue number 6 is distilled from ground XVI of the grounds
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of appeal). H
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Issue 7:
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Whether from the circumstances of this case, the Election Tribunal was right when it held that the failure of the petitioner
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to call the actual agents who worked for the petitioner in the field is very fatal to his case. (Issue 7 is distilled from ground V of the grounds of appeal).
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Issue 8:
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Whether the Election Tribunal was right when it held that the
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evidence of PW1 in relation to exhibit P1-P2558 is hearsay and that exhibit P1- P2558 should not have been admitted
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through PW1 and even if those documents are not expunged from the record of the Tribunal they deserve no probative value. (Issue 8 is distilled from ground VI of the grounds of
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appeal)
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Issue 9: Whether the respondents’ witnesses proved that exhibit P1 - P2558 were not the carbon copies of the original document in the custody of the Independent National Electoral Commission (INEC). (Issue 9 is distilled from grounds VII and XIV of the grounds of appeal).
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Issue 10:
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Who scored the majority of lawful votes cast at the election and satisfied the requirement of the Constitution? (Issue 10 is distilled from grounds XII and XV of the grounds of appeal)
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Issue 11: From the evidence before the Tribunal, has the 2nd respondent
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conclusively proved that the appellant was issued with certified true copies of the results in INEC’s possession? (Issue 11 is distilled from ground IX of the grounds of appeal).
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Issue 12:
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3.13 . From the circumstances of this case, who can the provisions
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of section 149 (d) of the Evidence Act be invoked against? (Issue 12 is distilled form ground X of the grounds of appeal).
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Issue 13:
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3.14 . Whether the 1st respondent admitted paragraphs 1 and 2 of G the petition in paragraph 2 of his reply, and if yes, what is the effect of such admission? (Issue 13 is distilled from ground
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IV of the grounds of appeal).
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The 1st respondent has formulated a total of 6 (six) issues in the brief thereof, thus:
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H 1 . Issue 1
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Was the trial Tribunal right in its statement of this issues arising
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for determination in the case against the background of the pleadings of the parties and did the Tribunal determine the
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said issue? Grounds I and II. A
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Issue 2
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Was the trial Tribunal right in its finding that the petitioner, not having adduced the required evidence to prove his allegation that the 1st respondent was not duly elected by a majority of
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valid votes cast at the election, was not entitled to judgment. B
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Grounds III, XV and XVI.
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Issue 3
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Did the 1st respondent in his reply admit the petitioner’s case
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and does the said reply accord with the requirements in
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paragraphs 12(2) and 15 of the First Schedule to the Electoral Act, 2006. Grounds IV and XIII. C
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Issue 4
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Were the learned trial Judges right when they held that failure by the petitioner to call his agents from the polling booths who allegedly countersigned and collected exhibits P1- P2558 was
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fatal to the petition as the same amounted to hearsay? In Re D Buhari v. Obasanjo (2002) 3 NWLR (Pt. 941) 1. Were the said exhibits duly discredited in evidence? Grounds V, VI, VII and XIV.
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Issue 5
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In circumstances of this petition, was the petitioner obliged to E
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tender two sets of result as held by the Tribunal and what are
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the consequences of his failure to do so? Ground XIII, IX, X, and XI.
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Issue 6
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Was the trial Tribunal obliged in the circumstances of this case
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to tabulate figures from exhibits P1 - P2855 XII. F
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The 2nd - 3238th respondents, on the other hand, raised a total of seven (7) issues in the brief thereof, viz:
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Whether the argument advanced by learned counsel for the appellant set out in paragraphs 2.9 to 2.28 pages 3 -7 and paragraphs 4.55 to 4.70, pages 31 to 35 of the appellant’s G brief of argument are competent and whether same can be taken into consideration in the determination of this appeal. (See preliminary objection filed with this brief of argument). Whether the Tribunal below properly considered the issues
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for determination and the pleadings relating thereto. (Grounds H
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1 and 2).
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From the state of the pleadings and evidence led, was the appellant duly elected by majority of votes cast at the election.
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(Grounds 3, 4, 5 and 16). Was the Tribunal right in refusing to act on exhibits P1 - P2558 which are carbon copies of result sheets disowned by the Independent National Electoral Commission? (Grounds 6, 7, 12 and 14). 2.5. Did the appellant discharge the legal burden of proving the falsity of and or return mode by INEC in favour of the 1st
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respondent? (Grounds 8, 11 and 15).
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Whether the appellant obtained certified true copies of
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authentic results from INEC and whether section 149(d) of the Evidence Act can be invoked against him. (Grounds 9 and
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C 10).
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Is the replies filed by the respondents herein in conformity with the provisions of paragraphs 12(2) and 15 of the 1st Schedule to the Electoral Act, 2006? (Ground 13).
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As it would appear on the record of proceedings of this court, on 20 May D 2008 when this appeal last came up for hearing, all the three briefs referred to above were adopted by the respective learned counsel for the parties, thereby resulting in the appeal being reserved for delivery of judgment. I have noted that the issues formulated by the appellant in the brief thereof were serially numbered as issues 1 - 13. However, a cursory look at the
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said issues would reveal that they are up to 14 in number. The reason being that what the appellant stated to be “issue 2 (3.2 and 3.3)” turned out to be
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two issues. Thus, paragraph “3.3” which is the second leg of issue 2 is renumbered as issue 3. Whereas, issue No. 3, issue 13 are hereby renumbered as issue 4 - issue 14, respectively.
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Having critically contrasted the 14 issues raised by the appellant in
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his brief with the 6 issues and 7 issues formulated by the 1st respondent and
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2nd - 3238th respondents in the respective briefs thereof, I am inclined to determine this appeal on the basis of the appellant’s 14 issues. It is a well settled principle of law that issues for determination formulated in a brief of argument must be precise and devoid of irrelevant complexity or verbosity,
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so as to ease comprehension of the matters to be determined in the appeal,
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Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21; All Nigeria Peoples’ Party & 2 Ors. v. Resident Electoral Commissioner, Akwa Ibom State & 139 Ors., Appeal No. CA/PH/NAEA/222/2007 (unreported) delivered on 18 February 2008. It is also a trite cardinal doctrine, that only issues are usually
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argued in a brief of argument. Thus, grounds of appeal are not argued in a brief of argument. However, its instructive that such issues where raised or
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formulated must relate to the grounds of appeal upon which they are supposedly predicated. Thus, where issues are found to be unrelated to
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grounds of appeal, they are without much ado deemed to be incompetent A
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and liable to be discountenanced: Oceanic Bank Int. Ltd v. Chitex Ind. Ltd (2001) FWLR (Pt. 4) 678; 689 paragraph H; Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) 134 at 165 - 166 paragraphs C - C; Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Animashaun v. U.C.H (1996) 10 NWLR
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(Pt. 476) 65, respectively. B
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Issues 1, 2 and 3:
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In the course of the determination of the appeal, issues 1, 2 and 3 will be taken together. The issue No. 1 raises the question as to whether the lower Tribunal was right to have considered only the paragraphs of the
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petition outside the issues for determination. Issues 2 and 3 raised the question
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as to whether the lower Tribunal was right in holding that the alleged C
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abandonment of sub-paragraphs 31(a) and 31(b) of the petition and the appellant’s failure to produce the two sets of results of the election in evidence, it cannot be determined that the appellant had in fact obtained a majority of lawful votes and therefore ought not have been returned as the winner of the election. The three issues were indicated to have been distilled D from grounds I, VIII and XI of the grounds of appeal.
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As it would appear from the appellant’s brief at pages 3 - 7, the learned counsel, Mike Okoye Esq. has prefaced the submission thereof with what he termed ‘preliminary issue’. The ‘preliminary issue’ could aptly
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be described as a rumbling or roving analytical deductions, that are not only E
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novel but also superfluous. It’s not worthy of any consideration and ought to
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thus be discountenanced.
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The submission of the appellant’s learned counsel on issues 1, 2 and
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above was to the combined effect, inter alia , that the statement of his witness filed along with the petition did not contain evidence in support of
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his pleadings in paragraphs 31(a) and 31(b) of the petition. That, the PW1 F
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and PW2did not lead evidence in supportof thesaid paragraphs. A reference was made to the judgment of the lower Tribunal (at page 667 of the record) wherein the lower Tribunal stated thus:
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“The legal position is that a pleading is abandoned where a party offered no evidence to prove same: Omoboriowo v. G Ajasin (1984) 1 SCNLR 108 cited at page 7 of the 1st respondent’s reply on point of law. In the instant petition, the petitioner offered no evidence in respect of paragraphs 31(a) and 31(b) only.”
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It was argued that having pronounced that the said paragraphs 31(a) H
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and 31(b) of the petition had been abandoned, it was expected that the
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lower Tribunal would have no business in considering and relying on the paragraphs in the determination of petition. Pages 670, 672, 667-668 of the
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record were referred to as instances in which the lower Tribunal made allusions to paragraphs 31(a) and 31(b) of the petition in question. It was contended bythe learned counsel, thatthe lower Tribunal should have limited itself to the sole issue of who scored the majority of lawful votes cast at the election: CNNEP/2/2007. M. Buhari & Anor. v. I.N.E.C. & Ors. delivered on 26 February 2008 (unreported). The court was urged to accordingly set aside the lower Tribunal’s decision on the grounds that it ought not to have
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relied on the alledged abandoned paragraphs 31(a) and 31(b) of the petition in question to determine the claim of the appellant therein.
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The 1st respondent’s issue No.1 was stated to have been distilled from grounds 1 and 2 of the appellant’s grounds of appeal. The argument
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proffered thereon relates to issues 1, 2 and 3 of the appellant. It was the
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submission of the 1st respondents learned senior counsel, Chief (Mrs.) A.J. Offiah SAN, that the appellant’s argument though ingenious is rather shallow. The learned silk made an allusion to, most especially, paragraphs 4 - 20, 31, 31(a) and 32 of the petition, to the effect that the appellant had never at any
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stage of the proceedings in the lower Tribunal withdrawn any paragraphs
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of the pleadings, and that none was actually struck out. That, the appellants deposition and that of PW1, Solomon Achikanu, which constituted their evidence in-chief was a verbatim reproduction of all the paragraphs of the petition. A reference was made to pages 295 -297 volume 1 of the records,
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regarding the ‘pre-hearing sheet’ filed by the appellant. That, by the said pre-hearing sheet, the appellant intended to call ‘a single expert to give a
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forensic analysis of the ballot paper and result forms in INEC’s possession, as pleaded in paragraphs 31(a) and 31(b) of the petition in question.
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It was accordingly argued, that issues for determination at the trial level were joined on the pleadings: George v. Dominion Flour Mills Ltd
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(1963) 1 All NLR 71; First Bank of Nig. Plc v. Ndoma Egba (2006) All
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FWLR (Pt. 307) 1012. That, for parties to therefore succeed, they must lead evidence relevant to the issues based on the averments: Edosa v. Zaccala (2006) FWLR (Pt. 306) 81; Kwara Hotels Ltd v. Ishola (2002) 9
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NWLR (Pt. 773) 604; U.B.N. Plc v. Ishola (2001) 15 NWLR (Pt. 735) 47,
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respectively.
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It was further submitted, that it was with the failed intention of proving the various allegations in the petition, that the appellant and PW1 testified and tendered exhibits P1 - P2548 and thereafter closed the case thereof. That, the lower Tribunal was entitled to look at the totality of the pleadings,
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including paragraphs 31(a) and 31(b) to determine whether the appellant had proved his case. That, a clear distinction must be drawn between failure
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to lead evidence in proof of an averment and the withdrawal of an averment (pleading), which if struck out requires no proof.
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According to the learned silk, the appellant’s answer in thepre- hearing A information sheet exposed the fact that he had not abandoned the said paragraph 31(a) and 31(b) of the petition. Thus, he cannot be deemed to have abandoned the paragraphs in question. That the lower Tribunal having formulated the issues for determination based on the state of the pleadings,
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was therefore right to have considered the case against the background of B
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what was alleged and required to be proved, and naturally found that the
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same was not proved. On that submission, the court has been urged upon to accordingly resolve grounds 1 and II of the appeal against the appellant.
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As alluded to above, the 2nd - 3238th respondents have raised a total of 7 (seven) issues in the brief thereof for determination. On 20 May 2008,
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when the appeal last came up for hearing, A. I. Ani Esq. the learned counsel C
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for the 2nd - 3238th respondents, alluded to thenotice of preliminary objection filed on 6 March 2008 along with the brief thereof. The preliminary objection in question was said to have been incorporated and argued in issue No.1 of the 2nd - 3238th respondents’ brief. Thus, issue No.1 of the 2nd - 3238th
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respondents’ brief and the argument there upon exclusively relates to the D preliminary objection in question. It raises the question of whether the argument of the appellant’s learned counsel set out in paragraphs 2.9 to
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2.28 and 4. 55 to 4. 70 (at pages 3 to 7 and 31 to 35 of the appellant’s brief) is competent and same can be considered in the determination of the appeal.
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It was alleged that in the said paragraphs 2.9 to 2.28 of the appellants E
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brief, copious reference was made to section 147 (1) and (2) of the Electoral
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Act, 2006, 6th Schedule to the 1999 Constitution, and many cases on the interpretation of statutes and the nature of election petitions. It was submitted,
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that the appellant’s counsel made heavy weather of the two depositions of RW1 instead of concentrating on the issue of evidence raised in issue No.
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6 and ground 16 of the grounds of appeal. Thus, it was contended that F
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where an appellant canvasses issues that are not supported by any ground of appeal, as in the present case, that argument will be discountenanced: Ideozu v. Ochoma (2006) 4 NWLR (Pt. 970) 364 at 390 . That, in some exceptional cases, fresh issues may be canvassed on appeal, but only with
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the leave of court: Oyakire v. State (2006) 15 NWLR (Pt. 1001) 157 at G
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170; Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 5 NWLR (Pt. 39) at 30-31, per Obaseki JSC; Bhojsons Plc. v. Daniel Kalio (2006) 5 NWLR (Pt. 973) at 330.
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According to the learned counsel, ground 16 of the grounds of appeal
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which is an omnibus ground, challenged the two depositions of DW1 as H
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well as the other witnesses’ failure to take oaths in accordance with the
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oaths Act. That an issue of law goes beyond the question of weight of evidence: Ben v. State (2006) 16 NWLR (Pt. 1006) 582 at 602 . That the
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combined effect of sections 136(2) and 147(2) of the Electoral Act, 2006 was not raised in the lower Tribunal. No leave was obtained to raise it on appeal. The issue in question was not covered by any ground of appeal. That the argumentthereon goes to no issue, and ought to be discountenanced. It was finally submitted, ex abundanti cautela, that the submission of the appellant that depositions on oath must end with a particular sentence is not known to law: Ibrahim v. I.N.E.C. (1999) 8 NWLR (Pt. 614) 334 at 347 .
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The court was urged to resolve the issue in favour of the 2nd - 3,238th respondents, and accordingly strike out the offensive paragraph of the appellant’s brief in question.
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I have critically, but rather dispassionately, considered the submissions
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of the learned counsel in the respective briefs thereof and the various
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illuminative authorities referred to therein. As it would appear from the records, the appellant’s brief is made up of a total of 64 pages. The introduction and statement of facts are contained at pages 2 -3. Pages 3 -7 relate exclusively to what the appellant’s learned counsel tagged -
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“preliminary issue”. Pages 7 -9 contain the 14 issues formulated for
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determination. Whereas, pages 10 - 64 relate to the argument canvassed on each of the 14 issues in question. “The last four pages of the brief on the other hand, relate to list of authorities referred to therein. There is every reason to hold that the submission or argument of the learned counsel for
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the appellant at pages 3 - 7 of the brief thereof under the heading preliminary issue” is novel superfluous, and rather a sheer wasteful exercise, for some
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obvious reasons.
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Firstly, the introduction of the so called “preliminary issue” in the
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brief is most undoubtedly antithetic to the principles and practice governing brief writing, asprovided under the Court of Appeal Rules, 2007, the Practice
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Direction, 2007 and the plethora of authorities relating thereto. It is trite that
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a brief of argument shall essentially contain (i) the issues arising in the appeal as well as amended or additional grounds of appeal; (ii) the reasons or argument canvassed shall be supported by such particulars as titles, dates and pages of authorities (cases) reported in reputable law reports etc.,
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including the summary of such decisions, statutory instruments, law books,
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legal journals, etc.; (iii) a brief shall also be concluded with a numbered summary of the points raised therein, and the reasons upon which the argument is predicated. See Order 17, rule 3 of the Court of Appeal Rules, 2007 which has been incorporated mutatis mutandis. In paragraph 6 of the
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Practice Direction (No.2) of 2007.
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The significance of a brief of argument to the administration of justice,
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especially with special regard to both the Supreme Court and Court of Appeal, cannot be overemphasized. The introduction of brief writing for
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appeals in this country was one of the many laudable initiatives or steps A which had been taken about three decades ago to quicken the hearing of appeals in both courts. It was rightly believed that the steps taken would cherishingly raise the standard of administration of justice in both courts
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vis-a-vis save a good deal of precious time for argument of appeals, thereby
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discouraging thepursuit of intractable and frivolous appeals, or advancement B
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of preposterous argument. Thus, where an appeal is obviously indefensibly
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vexatious, or the judgment appealed against is rather defective, unconstitutional, or outrageously illegal, the counsel on either side has a duty to ideally so state in the brief thereof. Thus, the appeal could be
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expeditiously, and where necessary, summarily disposed off: Manual of brief writing in the Court of Appeal and Supreme Court of Nigeria at page 4 by C
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Philip Nnaemeka-Agu JCA(as hethen was) published byFourth Dimension Publishing Co. Ltd, 1986. All Nigeria Peoples’Party & 2 Ors. v. Resident Electoral Commissioner, Akwa Ibom State & 139 Ors . CA/C/NAEA/ 222/2007, judgment delivered on 18 February 2008 (unreported).
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Secondly, its rather obvious, that the so-called preliminary issues in D question go to no issue, and ought to thus be discountenanced, on the ground that they were canvassed outside the issues formulated in the appellant’s brief. It is a well established doctrine, that what counsel should normally argue in a brief of argument are the issues formulated therein. As such,
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grounds of appeal should not ordinarily be argued in a brief. However, the E
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issues formulated in the brief must be predicated upon or distilled from
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grounds of appeal, otherwise they are liable to be struck out for being in competent: Oceanic Bank International Ltd v. Chitex Ind. Ltd FWLR
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(Pt. 4) 678 at 689 paragraph H; Dada v. Dosunmu at 165 -166 paragraphs C - C; Idika v. Erisi 2 NWLR (Pt. 78) 563; Animashaun v. U.C.H 65,
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respectively. F
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A critical appraisal of the 2nd-3238th respondents’ brief would reveal that the preliminary objection was incorporated and argued in issue No. 1 formulated therein. He had earlier on 6 March 2008 filed an application seeking leave to raise the preliminary objection in pursuance of the provisions
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of Order 10, rule 1 of the Court of Appeal Rules, 2007. It is axiomatic that G under the said rule l of Order 10 of the Court of Appeal Rules, 2007, a respondent wishing to raise a preliminary objection to the hearing of the appeal shall give three clear days notice to the appellant before the hearing date, setting out the grounds of the objection thereto.
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There is every reason to believe that the procedure adopted by the H
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2nd - 3238th respondents’ learned counsel by incorporating the preliminary
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objection in the issue No. 1 of the brief thereof instead of treating it as a preliminary objection simpliciter, is grossly defective in law. I have deemed
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it expedient to reproduce in verbatim the said issue No.1 thus:
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Issue No.1
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4.1. Whether the argument advanced by learned counsel for the appellant set out in paragraphs 2.9 to 2.28 pages 3 -7 and paragraphs 4.55 to 4.70, pages 31 to 35 of the appellant’s
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brief of argument are competent and whether same can be taken into consideration in the determination of this appeal.
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(See preliminary objection filed with this brief or argument). As could clearly be seen, the issue No. 1 in question was predicated on the ‘preliminary objection filed with this brief of argument’, rather than on any
-*-
ground of appeal. As alluded to above, its a trite cardinal principle, that an
-*-
issue raised or formulated in a brief of argument must be predicated upon,
-*-
or distilled from a valid ground of appeal. Thus, where, an issue is unrelated to or not predicated upon or distilled from any ground of appeal, as in the instant case, such an issue must be declared incompetent and liable to be struck out: Oceanic Bank International Ltd v. Chitex Ind. Ltd 678 at 689
-*-
paragraph H; et al.
-*-
Thus, in view of the above reasoning, the 2nd - 3238th respondents’ issue No. 1 is hereby declared as incompetent and accordingly struck out on the ground that it was not distilled from any ground of appeal. Regarding the appellant’s argument on the “preliminary issues” in question, this court
-*-
has the obligation to, in its own accord, declare same as incompetent, on the ground that they were neither related to the issues formulated in the
-*-
appellant’s brief, nor predicated on any of the grounds of appeal. It should be reiterated that issues for determination must be formulated or distilled from valid grounds of appeal, which in turn have to be predicated upon the
-*-
ratio decidendi of the decision of the lower court or Tribunal appealed
-*-
against: Dalek Nig. Ltd v. Ompadec (2007) All FWLR (Pt. 364) 204 at
-*-
226 paragraphs F - H. That, being the case, the argument of the appellant’s learned counsel on the so-called “preliminary issue” at pages 3 to 7 of the brief thereof, is accordingly hereby discountenanced.
-*-
The 2nd - 3238th respondents’ issue No. 2 relates to the appellant’s G issues 1 and 5 vis-a-vis grounds 1 and 2 of the grounds of appeal. It raises the question of whether the lower Tribunal properly considered the issues
-*-
for determination and the pleadings relating thereto. The learned counsel cited and relied on the Supreme Court’s case of Marine & Gen. Asso. Co. Plc v. O.U. Ins. Ltd (2006) 4 NWLR (Pt. 971) 622 at 647, regarding the
-*-
H hearing of an issue. An allusion was made to the lower Tribunal’s judgment at page 664 of the record to the following effect:
-*-
“The relevant avermentin the petition in respect of the invalidity of the 1st respondent’s votes are contained at paragraphs 9,
-*-
10, 15, 16, 21, 27, 28, 29, 31, 31a and 31b thereof.” A
-*-
According to the learned counsel, the lower Tribunal had considered the above averments vis-a-vis the evidence of the appellants two witnesses at pages 664 to 668, wherein the said lower Tribunal came to the conclusion that the appellant
-*-
“... has failed to prove that the 1st respondent was not elected B
-*-
by majority of valid votes at the election of 14 April 2007 for
-*-
Governorship in Enugu State.”
-*-
On the appellant’sissue No. 2, it was contended that the lower Tribunal
-*-
had examined the issue at pages 666 to 667 of the record and thereby came to the conclusion thus:
-*-
“ ... Accordingly, the issue number 2 for determination should C
-*-
be and is hereby resolved negatively against the petitioner in favour of the respondents.”
-*-
It was argued that in addition to paragraphs 31(a) and 31(b) of the petition, alleged to have been abandoned by the appellant, the lower Tribunal had also considered paragraphs 9, 10, 15, 16, 21, 27, 28, 29 and 31 of the D petition which borders on criminality requiringproof beyond reasonable doubt.
-*-
That, it was in the light of the “quantum and quality” of evidence required to prove the averments that the lower Tribunal resolved the issues against the appellant. That, the import of the said averments is that the appellant and
-*-
not the 1st respondent scored the highest number of votes cast atthe election, E
-*-
and ought to be returned as the winner, meaning that the votes upon which
-*-
the declaration was made in favour of the 1st respondent was forged.
-*-
Finally, this court has been urged not to disturb the findings of fact
-*-
and or evaluation of evidence made by the lower Tribunal, as thesaid findings are not perverse: Woluchem v. Gudi (1981) 5 SC 29l. The court is urged to
-*-
accordingly resolve the issue in question in favour of the respondents. F
-*-
Paragraphs 31(a) and 31(b) of the petition are both contained at page 80 of the petition. They are reproduced in verbatim as follows:
-*-
31(a) Your petitioner avers that the ballot papers in INEC’s possession were mixed with multiple thumbprint ballot papers. The petitioner will before or at trial move this honourable G Tribunal for an order for forensic analysis to be conducted on
-*-
the ballot papers to as certain multiple thumbprinting (valid and invalid votes).
-*-
31(b) Your petitioner also avers that any Unit results Forms ECBA,
-*-
ECB8, ECBC and ECBD in the possession of INEC were H
-*-
written by few writers and not by the designated Presiding
-*-
Officers, ward Returning Officers and the Returning Officers at the Local Governments in all the polling units, wards collation
-*-
and Local Governments collation centre. The petitioner will before or at trial move this honourable Tribunal for an order for forensic analysis to be conducted on the result forms.
-*-
It was the submission of the appellant’s learned counsel that:
-*-
The appellant in his witness statement filed along with the
-*-
petition contained no evidence in support of paragraphs 31(a) and 31(b) of the petition. Equally, PW1 and PW2 led no
-*-
evidence in support of paragraphs 31(a) and 31(b) of the petition.
-*-
See page 11 of the appellant’s brief. An allusion was made to page 667 of the record, wherein the lower Tribunal held that a pleading is abandoned
-*-
where a party offered no evidence in support thereof. It was thus argued,
-*-
that the said paragraphs 31(a) and 31(b) of the petition had been abandoned, on the ground that no evidence was offered by the petitioner in support thereof.
-*-
I have critically appraised the findings of the lower Tribunal at pages
-*-
667, most especially lines 10 - 27 and 668 1st paragraph thereof, which I have deemed expedient to reproduce thus:
-*-
“On the allegation at paragraph 29 of the petition which has been reproduced in the written statement of PW1 and PW2, it has not been shown that the votes credited to the 1st respondent
-*-
are the products of two distinct elections for the office of Governor. The election of 28 April 2007 in four Local
-*-
GovernmentAreas in Enugu State was merely a continuation of the election of 14 April 2007 not a separate election on its own.
-*-
However, it appears the petitioner purportedly abandoned
-*-
the averments in paragraphs 9, 10, 15, 16, 21, 27, 28, 29, 31,
-*-
31(a) and 31(b) of the petition. Refer to page 10 of the petitioner ’s written final address particularly at the last paragraph thereof. The petitioner has also purportedly abandoned the averments at paragraphs 4, 5, 6, 11, 12, 13, 14,
-*-
19 and 26 of the petition. The legal position is that a pleading is
-*-
abandoned where a party offered no evidence to prove same: Omoboriowo v. Ajasin (1984) 1 SCNLR 108 cited at page 7 of the 1st respondent’s reply on points of law. In the instant petition, the petitioner offered no evidence in respect of
-*-
paragraphs 31(a) and 31(b) only, where as the evidence of PW1 and PW2 was merely a repetition of all the other
-*-
paragraphs of the petition. After leading evidence on the said paragraph and after the filing of the final.”
-*-
It could be seen from theabove findings of the lower Tribunal, that paragraphs A 31(a) and 31(b) were held to have been deemed abandoned on the ground that the appellant had failed to offer any evidence thereon. The gravamen
-*-
of the appellant’s argument on this issue is that “once the Tribunal had determined that paragraph 31(b) relating to issues of falsification had been
-*-
abandoned, the only remaining issue arising from the pleadings is simply B
-*-
who scored the majority of lawful votes cast at the election and ought to
-*-
have been declared the winner of the said election.”
-*-
It is not in doubt, that none of the paragraphs of the petition was
-*-
withdrawn or struck out for whatever reasons. The trial in the petition thus
-*-
proceeded with the cases of the parties standing on the state of their respective pleadings. What is more, the learned counsel for the appellant C
-*-
has deposed in the pre-hearing information sheet at pages 338 - 340 of the record, to the effect that he did not intend to amend the petition as filed, and that he needed to call a single expert:
-*-
“To explain the similarity of the handwritings on all the result found in INEC’s possession of which INEC issued certified D true copies to the petitioner.”
-*-
As alluded to above, the single expert in question was supposed to have given a forensic analysis on the ballot papers i.e. Forms EC8A, EC8B, EC8C and EC8D series referred to in paragraphs 31(b) of the petition.
-*-
That being the case therefore, issues for determination had already been E
-*-
joined on the pleadings of the parties in the lower Tribunal: George v.
-*-
Dominion Flour Mills Ltd (1963) 1 All NLR 17; First Bank of Nig. Plc v. Ndoma Egba (2006) All FWLR (Pt. 307) 1012.
-*-
It is a trite principle of law, that a party that makes an assertion must prove the truth thereof in order to succeed in the action: Adake v. Akun
-*-
(2003) 14 NWLR (Pt. 109) 418 at 430 paragraphs D-F, per Ogundare JSC F
-*-
(of remarkable and blessed memory).
-*-
It is also the law, that for a party to succeed in the action thereof, he must lead some credible evidence relevant to the issues based on the averments in the pleadings thereof: Edosa v. Zaccala (2006) FWLR (Pt. 306) 881; U.B.N. Plc. v. Ishola (2001) 15 NWLR (Pt. 735) 47. G
-*-
I think it ought to be reiterated for the avoidance of doubt, that the failure of a party to lead evidence in proof of the averments in the pleadings thereof may not necessarily affect or change the issues that call for determination on the case: Kwara Hotels Ltd v. Ishola (2002)9 NWLR
-*-
(Pt. 773) 604. H
-*-
The appellant had pleaded in the said paragraphs 31(a) and 31(b) of
-*-
the petition thereof that all the unit result Forms ECBA, ECBB, ECBC and ECBD in question in the possession of INEC, upon which the 1st respondent
-*-
was declared and returned as having polled the majority of lawful valid votes at the election:
-*-
Were written by few handwriters and not by the designated Presiding Officers ward Returning Officers and the Returning Officers at theLocal Governments in all the pollingunits, wards
-*-
collation and Local Governments Collation Centre. The petitioner will before or at trial move this honourable Tribunal
-*-
for an order for forensic analysis to be conducted on the result forms.
-*-
Thus, by virtue of the above serious averments, the appellant had a duty to produce the said contested result forms and a forensic analysis or report by
-*-
a single expert to prove these far reaching allegations. This is so because
-*-
the 1st respondents declaration and return, as having won the election by the majority of votes cast at the said election, was predicated squarely on the election result forms in question.
-*-
Its instructive that the combined effect of paragraphs 20, 21, 31(a)
-*-
and 31(b) of the petition is that the 1st respondent was falsely declared and returned by INEC as having won the election in question.
-*-
Thus, the allegations as contained in the said paragraphs are criminal by nature and punishable under section 130(5) of tile Electoral Act, 2006 which provides thus:
-*-
E 130. ...
-*-
5. Any Returning Officer or collaboration officer who
-*-
delivers or causes to be delivered a false certificate of return knowing same to be false to the commission or
-*-
State Independent Electoral Commission, commits an offence and is liable on conviction to a maximum
-*-
imprisonment for 3 years without option of fine.
-*-
Also, by virtue of the provisions of section 138 (1) of the Evidence Act, the standard of proof of the said allegation is that of proof beyond reasonable doubt: Nwobodo v. Onoh (1984) 1 SCNLR 1; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Ayogu v. Nnamani (2006) 8 NWLR (Pt. 981) 160 at
-*-
182; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 209; Hashidu v.
-*-
Goje (2003) 15 NWLR (Pt. 843) 352 at 386, respectively.
-*-
Having regard to the foregoing postulations, I have no hesitation whatsoever in answering issues 1, 2 and 3 of the appellant each in the affirmative, and resolve same in favour of the respondent.
-*-
Issues 4 and 5:
-*-
It is pertinent that issue 4 raises the question of whether the lower
-*-
Tribunal was right when it held that the appellant has failed to prove that the 1st respondent was not duly elected by the majority of votes cast at the
-*-
April 14 2007 election for the Governorship in Enugu State. Issue 5 on other A hand, raises the question of whether the 1st respondent had complied with themandatory provision of paragraph 15 of the First Schedule to the Electoral Act, 2006, and the effect of the non-compliance therewith. The two issues were said to have been distilled from grounds III and XIII of the grounds of
-*-
appeal, respectively. The appellant’s counsel deemed it fit to argue both B
-*-
issues together, allegedly as an alternative to his argument on issues 1, 2
-*-
and 3. The learned counsel referred to the holdings of the lower Tribunal at pages 664 and 665 of the record, contending that the findings therein to the effect that the appellant offered no evidence in respect of paragraphs 31(a)
-*-
and 31(b) of the petition, and that the evidence of PW1 and PW2 was a repetition of all the other paragraphs thereof were manifestly contradictory. C
-*-
It was argued that having found that the appellant had offered evidence in respect of those other paragraphs relating to the invalidity of the 1st respondent’s votes, the lower Tribunal was under a legal obligation to have weighed the evidence tendered by the appellant against respondents’ evidence on an imaginary scale of justice before arriving at the conclusion D that the 1st respondent was not elected by majority of votes cast at the election. The learned counsel cited and relied on the notorious case of Mogaji
-*-
v. Odofin (1978) 3 SC 91 for the above proposition.
-*-
It was further argued that the lower Tribunal failed to consider the
-*-
pleadings of the parties to first determine whether the replies filed by the E
-*-
1st respondent complied with paragraph 15 of the First Schedule to the
-*-
Electoral Act, 2006, before deciding the matter. According to the learned counsel, it is the law, that filing a list of objections by the 1st respondent in
-*-
compliance with paragraph 15 of the First Schedule to the Electoral Act, 2006 is only applicable where issue of invalidity of votes arises from the
-*-
pleadings: Agballah v. Chimaroke Nnamani & Ors . Appeal No. CA/E/ F
-*-
EPT/26/2004, dated 18 November 2004; Okafor Vitalis Chukwuma v. Samuel Anyakora & Ors . (2006) All FWLR (Pt. 203) 121 at 147.
-*-
It was finally submitted that the provisions of paragraph 15 of the First Schedule are mandatory, as a result the evidence of the appellant stands unchallenged and thereforeestablished, contraryto the lower Tribunal’s G findings. The court was urged upon to accordingly allow the appeal on these two issues.
-*-
The 1st respondent’s issue No. 2 relates to grounds III, XV and XVI of the grounds of appeal. Thus, the issue to some extent relates to the
-*-
appellant’s issue No.4. Issue No. 3 of the 1st respondent was stated to H
-*-
have been predicated on grounds IV and XIII of the grounds of appeal and
-*-
thus relates to issue No.5 of the appellant. In a nutshell, the submission of the 1st respondent’s counsel is to the effect, inter alia , that the main bulk of
-*-
the appellant’s complaint is that the 1st respondent was not duly elected by a majority of lawful votes cast at the election, and that it was the appellant, rather than the 1st respondent, who scored a majority of lawful votes. See paragraph 32 of the petition vis-a-vis section 145(1)(c) of the Electoral Act, 2006. It was submitted that it is trite law, that the burden of disproving accuracy of election results rests on the petitioner: Moghalu v. Ngige (2005) 4 NWLR (Pt. 914) 1 at 36; Nwobodo v. Onoh (1984) 1 SCNLR 1 at 34;
-*-
Atikpekpe v. Joe (1999) 6 NWLR (Pt. 607) 428; Sabiya v. Tukur 1083
-*-
NSCC 5561 , respectively.
-*-
The learned counsel alluded to the evidence of PW1 under cross-examination by Chief (Mrs.) Offiah SAN at pages 597 - 605 to the
-*-
effect that the evidence of the PW1 portrays a questionable veracity “and
-*-
that the PW1 was not a witness of truth.” The court was also referred to the evidence of the respondents’ witnesses at pages 633 - 678 of the records. Reference was equally made to the depositions on oath of Prince Emeka Okoh, Hon. Ezeora Umezulike Lazarus, Uroko Loretto Ngozi, the Electoral
-*-
officer, Nkanu East Local Government Area contained in Volume 1 of the
-*-
records, regarding the alleged manifest inconsistencies in the result sheets. According to the learned counsel, the appellant had failed to produce the second set of result (Forms EC8A’s) in evidence so as to enable the lower Tribunal to compare the two sets of results as required by law. It was
-*-
further submitted that:
-*-
As a mark of good faith, the 1st respondent through RW1
-*-
produced and sought to tender the certified true copies of polling booth results (Form EC8A’s) by which the 1st
-*-
respondent was declared winner which said results were pleaded in paragraph 33 of the 1st respondent’s reply.
-*-
Surprisingly, the petitioners through his counsel heatedly
-*-
objected to the reception of the result forms in evidence even when the same would have aided the petitioner in discharging the burden of producing two sets of results and which would have afforded the Tribunal an opportunity to compare the two
-*-
sets of results and determine which one is correct. The
-*-
documents were tendered and marked rejected. See page 19 of the 1st respondent’s brief.
-*-
It was thus argued, that it is clear from the above (highlight) that the appellant had woefully failed in his duly to put forward credible evidence to
-*-
sustain the claims made by him and to discharge the onus of proof placed on him by law. See section 136 of the Evidence Act; Are v. Adisa (1967) All
-*-
NLR 158 at 161 -162; Maximum Insurance Co. Ltd v. Owoniyi (1994) 3
-*-
NWLR (Pt. 331) 178 at 192.
-*-
It was further argued that the appellant’s objection to the admission A of certified true copies of Form EC8A’s tendered by RW1 is a clear evidence that if it were produced, it would have been unfavourable to the petitioners case. See section 149(d) of the Evidence Act .
-*-
The 1st respondent equally maintained that he has complied with the
-*-
provisions of paragraph 12(2) of the First Schedule to the Electoral Act, B
-*-
2006 by the averment thereof in paragraph 4 of the reply to the petition
-*-
(paragraph 4)1 wherein he stated that he obtained the majority of lawful votes cast at the election. That, it is the position of the law, that pleadings are not considered in isolation, but the general drift of the defence or counter-
-*-
affidavit are considered historically as well: George v. Dominion Flour Mills Ltd (1963) 1 All NLR 7; Att.-Gen., Anambra State v. Onuselogu C
-*-
Ent. Ltd (1987) 4 NWLR (Pt. 66) 547.
-*-
It was contended that the law presumes the regularity of any judicial or official act under section 150(1) of the Evidence Act (2006). That, where the petitioner challenges the declaration made by INEC, the onus lies on
-*-
him to prove that the results are not genuine: Buhari v. Obasanjo (2005) D
-*-
13 NWLR (Pt. 941) 1 at 253. We have been urged to accordingly uphold the judgment of the trial court on the above argument.
-*-
The 2nd - 3238th respondents’ issue No.3 was stated to have been predicated on grounds 3,4,5 and 16 of the grounds of appeal. Thus, the said
-*-
issue, to some extent, relates to issues 4 and 5 under discussion. E
-*-
The submission of the learned counsel is to the effect, that paragraphs
-*-
20 and 21 of the petition imply that a false return and/or declaration was made by INEC officials in favour of the 1st respondent, which is an offence
-*-
punishable under section 130(5) of the Electoral Act. The provision of section 138(1) of the Evidence Act was cited and relied upon to the effect, that
-*-
where an allegation of the commission of a crime is in issue, the proof must F
-*-
be beyond reasonable doubt: Nwobodo v. Onoh (1984) 1 SCNLR 1;
-*-
Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Ayogu v. Nnamani (2006) 8
-*-
NWLR (Pt. 981) 160 at 182; Buhari v. Obasanjo (2005) 13 NWLR (Pt.
-*-
941) 1 at 209; Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352 at 386.
-*-
It was thus argued, that since the appellant did not call even one G witness from the field, he could not be said to have proved this allegation in accordance with the law. We were urged to accordingly hold, that the appellant has not proved that he was duly elected in accordance with the law.
-*-
It is trite, that one of the far reaching principles of the law of evidence H
-*-
is that which relates to the burden of proof. As a general rule, any party that
-*-
desires a court to give judgment in favour thereof regarding any legal right or liability dependent on the existence of facts asserted by him, must prove
-*-
that those facts do actually exist. Thus, invariably, the burden of proof in a case or proceeding lies squarely on that person who ordinarily would fail if no evidence at all was given on either side. See sections 135 and 136 of the Evidence Act.
-*-
The word ‘proof’as a noun, denotes the establishment or refutation
-*-
of an alleged fact by evidence; the evidence that determines the judgment of a court: Black’s Law Dictionary, 7th Edition (U.S. West Publishing Group)
-*-
2004 at 1231. In the same vein, the term ‘standard of proof’ denotes the degree or level of proof in a specific case, such as beyond a reasonable doubt or by a preponderance of the evidence: Black’s Law Dictionary, 7th
-*-
Edition Published by West Group Publishing Company Ltd at pages 1231
-*-
and 1413, respectively. The term ‘proof’ has been judicially held to mean a
-*-
process by which the existence of facts is duly established or disproved, to the ultimate satisfaction of the court or Tribunal: Awuse v. Odili & Ors. (1999) All FWLR (Pt. 261) 248; Olufosoye v. Fakorede (1993) 1 NWLR
-*-
(Pt. 272) 747.
-*-
It is a fundamental and trite principle of law, that in election petitions, the burden lies upon the party that asserts to adduce credible evidence in proof of that assertion: Awuse v. Odili .
-*-
In the instant case, the burden undoubtedly lies squarely upon the appellant to establish the allegations or averments contained in the petition
-*-
thereof. It was the case for the appellant that having scored the majority or vote s cast at the said elections he, and not the 1st respondent, ought to have
-*-
been declared and returned as the winner thereof. The petitioner’s assertions, most especially in paragraphs 7, 18, 19, 20, 21, and 24 of the petition, are to the following effect:
-*-
Your petitioner avers that the votes as announced by INEC in which it purportedly credited to the 1st respondent 811,798
-*-
votes and to the petitioner 15,287 votes were not the correct figures or correctly added number of lawful votes cast at the election of 14 April 2007.
-*-
Your petitioner avers that the Presiding Officers in each polling G unit at close of poll counted the votes at the polling stations, entered the votes scored by each candidate in Form EC8A,
-*-
signed and stamped the forms which same was countersigned by agents and after the results were announced at the polling station, a carbon copy was issued to the petitioner’s agents.
-*-
H The petitioner shall at trial rely on the carbon copies of the polling booth result issued by thePresiding Officers to establish
-*-
that the petitioner and not the 1st respondent won the election of 14April 2007
-*-
Your petitioner avers that when the respondents’notice that A from the polling unit result that the petitioner won the Governorship election, they proceeded to abort the collation
-*-
at the ward and Local Government, such that the petitioner’s agents had to wait in vain for the collation which never was to
-*-
be. The petitioner’s party agents had to sum up the figures B
-*-
from the polling unit results Form EC8A, received by their
-*-
agents from INEC Presiding Officers.
-*-
Your petitioner avers that from the results issued by INEC
-*-
and summed up by the petitioner’s agents it was crystal clear
-*-
that the petitioner won the election by obtaining the highest number of valid votes cast at the election and also obtained C
-*-
one quarters of the votes cast in over two - thirds of all the Local Government Areas in Enugu State. While the 1st respondent obtained 59,892 votes, the petitioner received 450,083 votes to win the election.
-*-
Your petitioner avers that 811,798 votes credited to the 1st D respondent by INEC are invalid votes and the 15,287 votes credited to the petitioner were also wrong. Your petitioner avers that the analysis of the polling booth result is as contained in “Schedule A” filed with this petition.
-*-
There is no doubt that the above allegations are weighty and very serious E
-*-
indeed. The implication of the allegations is that the 811,798 votes credited
-*-
to the 1st respondent and the 15,287 votes credited to the appellant were false and accordingly manipulated in favour of the 1st respondent. Thus,
-*-
the declaration and return of the 1st respondent as the winner of the elections in question by INEC officials had allegedly amounted to a false declaration
-*-
within the contemplation of the provision of section 130(4) and (5) of the F
-*-
Electoral Act, which is to the following effect: 130. ...
-*-
Any person who announces or publishes an election result knowing same to be false or which is at variance with the signed certificate of return commits an offence G and is liable on conviction to 36 months imprisonment. Any Returning Officer or collation officer who delivers or causes to be delivered a false certificate of return knowing same to be false to the Commission or State.
-*-
Independent Electoral Commission, commits an offence H
-*-
and is liable on conviction to a maximum imprisonment
-*-
for 3 (three) years without an option of fine.
-*-
It is a well settled doctrine, that where an allegation of the Commission
-*-
of a crime is made in any proceedings, whether civil or criminal, the standard of proof required of the party making the allegation is that of proof beyond reasonable doubt. See section 138(1) of the Evidence Act Cap. E 14, Laws of the Federation of Nigeria, 2004, provides thus:
-*-
“138(1) If the Commission of a crime by a party to any proceeding is
-*-
directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
-*-
Thus, the position of thelaw on the issueis certainlynot in doubt manipulation, alteration, forging, or falsification of election result is characteristically a criminal offence, and the standard proof required is high. That is to say, it is
-*-
a proof beyond reasonable doubt: Buhari v. Obasanjo (2005) 13 NWLR
-*-
(Pt. 941) 1 at 209; Nwobodo v. Onoh (1984) 1 SCNLR 1; Omoboriowo v.
-*-
Ajasin (1984) 1 SCNLR 108; Ayogu v. Nnamani (2006) 8 NWLR (Pt.
-*-
981) 160 at 182 respectively.
-*-
It has been judicially acknowledged, that the term ‘proof beyond reasonable doubt’ does not necessarily connote proof beyond any shadow
-*-
of doubt. Otherwise, the essence and fundamental objective of the law in preserving the sanctity and security of the society would be defeated if it allows fanciful possibilities to deflect the course of justice. Miller v. Minister
-*-
of Pensions (1947) 2 All ER 372, wherein Lord Denning, MR (of remarkable and blessed memory) held, inter alia, thus :
-*-
“If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with
-*-
thesentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”
-*-
It must be reiterated for the avoidance of doubt, that the fundamental
-*-
principle of proof beyond reasonable doubt, as enunciated above, has become
-*-
an integral part of the laws governing election petition proceedings in this country: Buhari v. Obasanjo (2005) 13 FWLR (Pt. 273) 1 at 199; Jang v. Dariye (2004) FWLR (Pt. 194) 412 at 432nd - 43rd Alike v. Ararume & Ors . (2005) All FWLR (Pt. 263) 740 at 754.
-*-
In essence, it is well settled general principle, that the standard of proof in election matters bordering on malpractice or irregularity or misconduct depends upon the nature and circumstances of the allegation in
-*-
question. Thus, where the allegation is merely regarding some non-criminal wrongdoing, the proof thereof would be based on the preponderance of
-*-
evidence. However, as alluded to above, where the allegation borders on, or has the semblance of criminality, as in the instant case, then the standard
-*-
is that of proof beyond reasonable doubt: Buhari v. Obasanjo at 209, et al . It is pertinent, that the appellant’s learned counsel has referred us to
-*-
the findings of the lower Tribunal at pages 664 and 665 of the record, wherein A
-*-
it stated thus:
-*-
The relevant averment in the petition in respect of the invalidity of the 1st respondent’svotes are contained in paragraph 9,10,15, 16, 21, 27, 28, 29, 31, 31(a) and 31(b) thereof ...
-*-
The question is, have all these allegations as to invalidity of B
-*-
the 1st respondent’s votes been proved by evidence adduced
-*-
by the petitioner?
-*-
The answer to that question could be found at page 666 lines 1 - 10 of the record, wherein the lower Tribunal held thus:
-*-
At both paragraph 31 of the petitions and paragraph 31 of PW1’s written statement on oath, the petitioner undertook to C
-*-
establish at trial that all the INEC Presiding Officer, were card carrying members of the Peoples’ Democratic Party. Did he actually prove this allegation? The obvious answer is in the negative. In fact, the petitioner adduced no evidence to
-*-
prove that any INEC Presiding Officer in the Governorship D election of 14April 2007 and 28 April 2007 was a card carrying member of the Peoples’Democratic Party. The petitioner also failed to adduce evidence to prove multiple thumbprinting of ballot papers as alleged at paragraph 31(a) of the petition.
-*-
Having critically, albeit dispassionately, perused the entire records of the E
-*-
lower Tribunal vis- a - vis the submissions of the learned counsel and various
-*-
authorities referred to therein, I can not agree more with the above findings of the lower Tribunal. Its become so obvious, that the appellant has failed to adduce cogent and reliable evidence to establish or prove the election result
-*-
Forms EC8A, EC8B, EC8C and EC8D in INEC’s possession were actually written by the few handwriters and not by the designated Presiding Officers, F
-*-
ward Returning Officersand theReturning officers at theLocal Governments in all the polling units, wards collation and Local Governments collation centres, as extensively pleaded in paragraphs 31(a) and 31(b) of the petition. As alluded to above, the allegations in question were undoubtedly criminal,
-*-
thus, the standard of proof thereof is that of proof beyond reasonable doubt. G
-*-
See section 138(1) of the Evidence Act; Buhari v. Obasanjo .
-*-
It’s unfortunate for the appellant to have made so much heavy weather of the issue of the alleged abandonment of paragraphs 31(a) and 31(b) of the petition. Having failed to adduce a credible evidence to support
-*-
his allegations regarding the said paragraphs of the petition, it has become H
-*-
rather preposterous, to say the least, for the appellant to now complain that
-*-
the lower Tribunal was wrong in alluding to the averments in question. It is a fundamental and trite principle that in dealing with pleadings, the court has
-*-
an onerous duty to consider all the paragraphs thereof together and not merely a few paragraphs in isolation. This is so because, it is the totality of the pleadings of the parties on both sides of the divide that usually determines the case, one way or the other. Thus, it will amount to an injustice for a court to limit its focus on only a few paragraphs of the pleadings in coming to a conclusion in the case before it: Ngige v. Obi (2006) 14 NWLR (Pt. 989) 1 at 42; George v. Dominion Flour Mill Ltd (1963) 1 All NLR 71 . In
-*-
the instant case , its rather evident, that the lower Tribunal had rightly, in my view, considered the entirety of the pleadings of the parties before coming to the conclusion, as it did, that the appellant failed to prove his case. Apart
-*-
from the alleged abandoning of paragraphs 31(a) and 31(b) of the petition,
-*-
the appellant has failed to prove the other allegations regarding the alleged
-*-
invalidity of the 811,798 votes credited to the 1st respondent. It was the appellants pleadingsthat thevotes credited to the 1st respondent were invalid votes, on the ground that the said votes had exceeded the number of the qualified voters registered and the number of the accredited voters in each
-*-
polling unit. It was also alleged by the appellant, that the votes accredited to
-*-
the 1st respondent were in excess of the number of ballot papers issued by INEC to Enugu State for the April 14, 2007 election in question; that the voters turn out was low; that the 1st respondents declaration and return was also invalid on the ground that it was a product of two elections in
-*-
contravention of the 1999 Constitution.
-*-
However, it is evident from the records, that the appellant did not
-*-
deem it fit to adduce cogent and reliable evidence to prove those grievous and far reaching allegations in question. Undoubtedly, for the appellant to
-*-
have succeeded in his claim, he needed to have called the alleged single expert “to explain the similarity of the handwritings on all the results found
-*-
in INEC’s possession of which INEC issued certified true copies to the
-*-
petitioner.” It was submitted by the appellant’s learned counsel that no evidence was led on the two paragraphs of the petition in question, as such same should be deemed as having been abandoned, as they were no longer required to prove the allegations beyond reasonable doubt, but rather on the
-*-
balance of probability. Nevertheless, an extensive appraisal or community
-*-
reading of the entirety of the petition, even without paragraphs 31(a) and 31(b) in question, would unequivocally establish that the gravamen of the appellant’s allegation borders on wrongful or false declaration and return of the 1st respondent. Thus, the standard of proof required is that of proof
-*-
beyond reasonable doubt, within the perview or contemplation of the provisions of section 138(1) of the Evidence.
-*-
In addition to the vexed issue of the standard of proof required, the position of the law is that, where the allegation in which figures or scores of
-*-
candidates that contested an election are in issue or being challenged, the A
-*-
evidence to be led in support of such allegations should come directly from the actual officers who were on the field where the votes were counted: Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 135. Wherein the Supreme Court held, per Akintan JSC thus:
-*-
On the question of whether the evidence led in support is B
-*-
sufficient to warrant the decision reached on the point by
-*-
the court below, It is necessary to examine the said evidence. The position of the law regarding the type of evidence which must be led in support of allegations in
-*-
which figures or scores of candidates at an election are being challenged should come direct from the, officers C
-*-
who were on the field where the votes were counted: Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 353 at 386.
-*-
Curiously enough however, the appellant rather than taking the trouble to call the relevant INEC officers that were in the field and thus took an
-*-
active part in conducting the elections in question, to give evidence, he D chose, for reasons best known thereto, to tender the election result forms, exhibits P1 -P2548 vide the PW1.What is more, most surprisingly, none of the appellant’s party agents that allegedly represented the appellant at, signed and collected the said exhibits P1 - P2548 from the numerous polling units,
-*-
was called to testify in the petition. A fortiori , the failure to call the party E
-*-
agents that represented and served as an eagle eye to the appellant at the
-*-
various polling units to give evidence was fatal to the petition.
-*-
It should be reiterated that on 19 September 2007, when the PW1,
-*-
Solomon Achikanu, testified and adopted the written submission thereof, an attempt by Mike Okoye Esq. to have exhibits P1 - P2548 (carbon copies of
-*-
polling units results) admitted in evidence was vehemently objected to by F
-*-
Chief (Mrs.) Offiah SAN. After what appears in the record to be a heated argument, the lower Tribunal reserved ruling on the vexed issue of admissibility of the said exhibits. That ruling was indeed delivered on 4 January 2007, wherein the lower Tribunal came to the following conclusion:
-*-
“On the whole, allthe objectionsare overruled. The documents G totaling 2,548 sheets are hereby admitted as bundled to us, and collectively marked as exhibit P1.” See page 594 of the record.
-*-
There is every reason to believe that the lower Tribunal had painstakingly
-*-
alluded to the evidence of the PW1 & PW2, the exhibits in question i.e. H
-*-
exhibit P1 (exhibits P1 - P2,548), as well as the evidence adduced by the
-*-
respondents’ 18 witnesses (RW1 - RW18). The totality of the evidence of respondents witness (RW1) and those of the 2nd -3238th respondents (RW2
-*-
- RW18) is to effect that exhibits P1 - P2,548 in question were different from the genuine Forms EC8A’s used at the election. That is to say, they were not the same as the original result sheets allegedly in the possession of INEC. The RW1, Dr. (Mrs.) Anthonia Ekwo, i.e. the Logistics Officer INEC Enugu in particular, had insisted in her evidence under cross- examination by the appellant’s counsel that the original copies of the said exhibits P1- P2548 were not in her possession.
-*-
What is more, an attempt was made by the 1st respondent to tender the certified true copies of polling booth results (Form EC8A’s) by which the 1st respondent was declared and returned as the winner of the elections
-*-
in question, as pleaded in paragraph 33 of the 1st respondent’s reply to the
-*-
petition. Most surprisingly, however, the appellant’s learned counsel, for
-*-
reasons best known thereto, vehemently objected to the admissibility thereof. They were rejected by the lower Tribunal and so accordingly marked as such.
-*-
It is evident that in paragraphs 21, 22 and 24 of the 1st respondent’s D reply to the petition, the 1st respondent has vehemently denied and objected to the whole votes the appellant allegedly scored. The 1st respondent has in the said paragraphs described the appellant’s allegation not only as spurious and false, but that the alleged votes did not emanate from the authentic
-*-
election results issued by INEC.
-*-
It thus goes without saying, that the appellant’s vehement objection to the admission of the duly certified true copies of the election results Form
-*-
EC8A’s tendered vide the RW1 the INEC’s Logistics Officer Enugu State is undoubtedlya clear and unequivocal evidence thatif produced, they would
-*-
have been unfavourable to the appellant: Section 149(d) of the Evidence Act provides thus:
-*-
149. The court may presume the existence of any fact which it
-*-
thinks likely to have happened, regard being had to the common course of natural events, hence and public and private business, in their relation to the facts of the particular case, and in particular the court may presume-
-*-
(d) That evidence which could be and is not produced would, if
-*-
produced, be unfavourable to the person who withholds it.
-*-
It is trite that withholding of evidence, within the contemplation of the provisions of section 149(d) of the Evidence Act, is an act or an instance of obstructing by stifling or suppressing evidence knowing fully well that it
-*-
is being soughtor needed in an official investigation or a judicial proceeding, as in the instant case: Black’s Law Dictionary at page 1505.
-*-
Thus, having regard to the above, postulations, there is every reason for this court to hold that the answer to both issues 4 and 5 ought to be in the
-*-
affirmative, and they are hereby resolved in favour of the respondents. A
-*-
Issues 6 and 7:
-*-
Issues 6 and 7 were said to have been predicated on grounds II and XVI of the grounds of appeal respectively. Issue 6 raises the question of whether the lower Tribunal was right when it failed to consider the
-*-
paragraphs of the petition that relate to the issue for determination. Issue B
-*-
No.7 on the other hand, raise the question of whether the lower Tribunal’s
-*-
decision was not perverse for having allegedly failed to evaluate and place the evidence called by the parties on an imaginary scale of justice before coming to the conclusion that the petitioner had not established the case
-*-
thereof.
-*-
The two issues were both argued together by the appellant’s learned C
-*-
counsel. His argument on both issues could be found at pages 19 -37. Reference was made to paragraph 32 of the petition regarding the relief sought in the petition. According to the learned counsel, the ground of the claim therein is as prescribed in paragraph 145(1)(c) of the Electoral Act, 2006 which provides thus: D
-*-
145 - (1) an election may be questioned on any of the following grounds,
-*-
(a) ...
-*-
(b) ...
-*-
that the respondent was not duly elected by E majority of lawful votes at the election.
-*-
It was also submitted that the relief sought in the petition is governed by section 147 (2) of the ElectoralAct, which provides thus:
-*-
147(1) ...
-*-
(2) If the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground F
-*-
that he did not score the majority of lawful votes cast at the election, the Election Tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied
-*-
the requirements of the Constitution and this Act. G
-*-
An allusion was also made to section 179(2) of the Constitution, paragraphs 1, 7, 1 7, 18, 20, 22, 23 and 25 of the petition which the learned counsel argued were necessary for the lower Tribunal’s consideration. The learned counsel equally copiously referred to the written evidence of oath of the
-*-
two witnesses (PW1 and PW2) called by the appellant vis-a-vis the written H
-*-
depositions of the respondents’ witnesses RW1 - RW18, respectively. It
-*-
was accordingly argued by the learned counsel that the RW1 swore to two different witnesses’ statements listed as No. 30 and No.42 on the 1st
-*-
respondent’s list of witnesses filed with the reply thereof. The RW1 was said to have admitted under cross-examination that the filing of the statements in question was “a compilation error.” That, no effort was made to correct that error according to the learned counsel, the two statements are an abuse of process of court and thus liable to be struck out for being incompetent: Buhari v. I.N.E.C .
-*-
It was likewise argued, that the statements of RW2 - RW18 are not
-*-
written statements on oath as they are unsworn statements, as such no evidence could be led through them. That, there was no oral examination of witnesses in evidence in-chief, thus the trial was basically conducted by the
-*-
use of documentary evidence. That, under the Practice Direction, 2007
-*-
written evidence on oath as oral examination of witnesses was prohibited.
-*-
It was contended that this court is in the same position as the lower Tribunal in the assessment of evidence before it.
-*-
It was likewise argued that in the present case, the lower Tribunal failed to consider the relevant paragraphs of the petition and also failed to
-*-
evaluate the evidence presented by the parties but proceeded to rely heavily
-*-
on the respondents’ evidence. That, it also failed to test the quality of the respondents’ evidence before utilizingsame, therebyresulting in falling short of what a good judgment of a superior court of law should contain: Ojogbue & Ors. v. Nnubia & Ors. (1972) 1 All NLR 226; Ezeoke v. Nwagbo
-*-
E (1988) 1 NWLR (Pt. 72) 616; Mogaji v. Odofin (1978) 3 SC 91;
-*-
Omoboriowo v. Ajasin (1984) 1 SC.
-*-
Relying on Mustapha v. Bulama (1999) 3 NWLR (Pt. 595) 376 at 383 - 384 and section 16 of the Court of Appeal Act, the learned counsel
-*-
urged upon this court to thus interfere with the findings of fact of the lower Tribunal examine thepleadings and apply theoral and documentary evidence,
-*-
which the lower Tribunal has failed to do, and accordingly allow the appeal.
-*-
The 1st respondent’s learned senior counsel has addressed the argument of the appellant’s learned counsel an issue 6, in issues 2 and 3 thereof which have already been referred to above. However, argument proffered in issue 7 has not been addressed by the 1st respondent’s learned
-*-
counsel. It was submitted, interalia , that from the paragraphs of the petition,
-*-
especially paragraphs 4, 6, 7, 8, 9, 10 and 32, it is obvious that the ground upon which the petition challenges the election of the 1st respondent is as prescribed in section 145(1)(c) of the Electoral Act, to the effect that the latter was not duly elected by majority of lawful votes at the election. That,
-*-
its trite that the burden of disproving the accuracy of result of election rests on thepetitioner. That, the appellantas thus required to plead and led evidence
-*-
in respect of two sets of results, one he alleges is wrong and the one he alleges to be correct, so as to enable the Tribunal to compare: Moghalu v.
-*-
Ngige at 36; Nwobodo v. Onoh at 34; Atikpekpe v. Joe 428; Sabiya v. A Tukur 556 . It was assumed that the evidence of PW1 portrays a questionable veracity and not a witness of truth. That, the PW1 under cross-examination
-*-
by the 1st respondent’s senior counsel seemed to have had a temporal memory loss on all issues relating to the elections of 14April 2008; that all
-*-
the information were indirect and could not have therefore been relied upon B
-*-
by the court to return the appellant. That, despite the fact that there was no
-*-
evidence in support of the petition, the respondents led evidence in defence and called witnesses including the electoral officers for the 17 Local Governments as well as the INEC’s Enugu Logistics officer. That the
-*-
respondents’ effort to produce and tender the election results in possession
-*-
of INEC was objected to by the appellant’s counsel: Section 149 (d) of the C
-*-
Evidence Act. The 2nd - 3238th respondents’ argument on issue No.3 to some extent, relates to issues 3,6, 7 and 13 of the appellant.
-*-
It was submitted, inter alia , that the summary of the appellant’s case is that the appellant and not the 1st respondent was the winner of the election in question. It was argued that by virtue of paragraphs 20 and 21 of D the petition, the averments therein imply that a false return and/or declaration was made by INEC in favour of the 1st respondent which is an offence under section 130(1) of the Evidence Act. Thus, the standard of proof is that beyond reasonable doubt: Nwobodo v. Onoh ; Buhari v. Obasanjo et
-*-
al . That, in this case, the entire reply of the 2nd - 3238th respondents, E
-*-
especially paragraphs 3, 11, 14 and 15 thereof is to the effect that all the
-*-
averments in the petition have been denied. That, the quality of the evidence prescribed in Buhari v. Obasanjo and Hashidu v. Goje has not been
-*-
abolished by the Election Tribunal and Court Practice Directions, 2007 as contended by the appellant’s counsel: University of Lagos & Anor. v.
-*-
Aigoro (1984) 11 SC 152 at 191. That, the appellant’s counsel elected to F
-*-
call a total of twenty witnesses but ended up calling only two. As such, he cannot now complain that he was not allowed to call all the other witnesses. The court was urged to accordingly hold that the appellant has not proved that he was duly elected in accordance with the law.
-*-
I have critically considered the submissions of the learned counsel G on the said issues 6 and 7. From the outset, I think it should be reiterated thathaving determined issues 1-5in favour of the appellant, it would ordinarily amount to an academic exercise to proceed to determine the rest of the appellant’s issues (issues 6-14). However, the above observation,
-*-
notwithstanding, having accorded an ample regard upon the records of the H
-*-
proceedings of the lower Tribunal, I am unable to appreciate, letalone uphold,
-*-
the contention of the learned counsel for the appellantthat the lower Tribunal had failed to consider the paragraphs of the petition relating to the issue for
-*-
determination. As alluded to above, the judgment of the lower Tribunal in question is contained at pages 659 - 674 of volume one of the records of proceedings thereof. It is evident that at page 664 of the record, the lower Tribunal copiously reproduced the two issues formulated by the appellant thus: 1. Whether the petitioner has proved that the 1st respondent was not duly elected by majority of valid votes cast at the Election
-*-
of 14 April 2007 for Governorship in Enugu State.
-*-
2. Whether in fact the petitioner obtained a majority of lawful
-*-
votes of the electorate in Enugu State and fulfilled the conditions in the Constitution and cogent to have been returned.
-*-
The lower Tribunal proceeded to adopt the said two issues thus:
-*-
Therefore, we adopt the two issue formulated by the petitioner as the issues for determination in this petition. We will treat each issue separately, beginning with the first issue...
-*-
The relevant averment in the petition in paragraphs 9, 10, 15, D 16, 21, 27, 28, 29, 31, 31(a) and 31(b) thereof. As pleaded by the petitioner, the votes credited to the 1st respondent were
-*-
invalid votes for the reason that they exceeded the registered qualified voters and the number of accredited voters in each polling unit and constituently...
-*-
The petitioner also averred that the 1st respondent enjoyed undue advantage over him in the gubernatorial elections in
-*-
Enugu State as all the INEC Presiding Officers were card carrying members of the Peoples’Democratic Party...
-*-
As it would appear at pages 665 of the records, the lower Tribunal then posed the following question:
-*-
The question is have all these allegations as to invalidity of the
-*-
1st respondent’s votes been proved by the evidence adduced by the petitioner.
-*-
Thereafter, the lower Tribunal proceeded to consider the evidence of PW1 and PW2, the written statements on oath thereof vis-a-vis the averments
-*-
contained in the petition itself, especially paragraphs 9, 10, 15, 16, 21, 27, 28,
-*-
29 and 31 31(a) and 31(b). The finding of the lower Tribunal on the issue was to the effect that neither the PW1 nor the PW2 said anything on paragraphs 31(a) and 31(b) of the petition and that the allegations in paragraphs 31(a) and 31(b) of the petition being criminal in nature must be
-*-
proved beyond reasonable doubt: Nwobodo v. Onoh . It mustalso be stressed that the lower Tribunal had painstakingly referred to the various paragraphs
-*-
of the pleadings, the written statement on oaths and various authorities on the issue before arriving at the conclusion thus:
-*-
We agree with Ibik SAN at page 41 of his final address that A the burden of proof is on the petitioner since the petitioner has failed to prove his petition, it is not even necessary to consider
-*-
the respondent’s case. The petitioner has to succeed on the strength of his own case and not on the weakness of the
-*-
defence. Awuse v. Odili (2005) All FWLR (Pt. 261) 248 at B
-*-
Finally, it is quite obvious that with the resolution of all the two issues for determination against the petition, this petition is bound to collapse.Accordingly, this petition fails and it is hereby
-*-
dismissed. Costs of N20,000.00 (twenty thousand naira) is awarded to each set of respondents. C
-*-
I think, I can not concede more to the above findings and conclusion of the lower Tribunal. Having regard to the record and the painstakingly articulated findings of the lower Tribunal, there is every reason for this court to hold that the appellant’s allegation that the lower Tribunal failed to
-*-
consider theparagraphs of the petition relating to the issues for determination D
-*-
is, to say the least, rather a smoke screen and utterly preposterous.
-*-
It has long been settled, that the allegation of falsification of election results is characteristically criminal, of which the standard of proof is that of beyond reasonable doubt. It is also fundamental that to prove falsification
-*-
of election results, there should be in existence at least two results, one of E
-*-
which could be stigmatized as genuine and the other false: Sabiya v. Tukur
-*-
(1983) NSCC 559 at 560; (1983) 11 SC 109, per Irikefe JSC (of blessed memory as he then was); Ojo v. Esohe & Ors. (1999) 5 NWLR (Pt. 603)
-*-
444 at 452 - 453 per Salami JCA; Nwobodo v. Onoh at 34; Eboh v. Ogujiofor (1999) 3 NWLR (Pt.595) 419 at 423 - 424; Buhari v. Obasanjo
-*-
respectively. F
-*-
In view of the above highlight, it behoves on this court to hold that the lower Tribunal had not in any wayabdicated itsparamount dutyof considering the entirety of the petition especially the paragraphs relating to the issues formulated by the appellant for determination which were adopted by the
-*-
lower Tribunal. Thus, both issues 6 and 7 ought to be and are both hereby G
-*-
resolved in favour of the respondents.
-*-
Issues 8, 9 and 10
-*-
Issue No. 8 raises the question of whether from the circumstances of this case, the lower Tribunal was right in holding that the petitioners
-*-
failure to call the actual agents who worked for the appellant in the field is H
-*-
very fatal to his case. The issue was distilled from ground V of the grounds
-*-
of appeal. Whereas issue No.9 raises the question of whether the lower Tribunal was right when It held that the evidence of PW1 in relation to
-*-
exhibits P1 - P2558 is hearsay and ought not have been admitted through the PW1, and that they deserve no probative value even if they were not expunged from the records. The issue was distilled from ground VI of the grounds of appeal. Issue No. 10 on the other hand, raised the question of whether the respondents’ witnesses had proved that exhibits P1 - P2558 were not carbon copies of the original documents in possession of INEC. The issue was distilled form grounds VII and XIV of the grounds of appeal.
-*-
References were made by the appellant’s counsel to various pages of the record of proceedings regardingthe findings of thelower Tribunal and various authorities, thereby contending that the lower Tribunal’s findings that the
-*-
failure to call the 2558 agents that worked for the appellant in the field is
-*-
fatal to the appellant’s case was perverse, unjust contradictory and can not
-*-
support the order earlier made by the same lower Tribunal streamlining the number of witnesses thereof. The case of Okoloagu v. Eze & Ors. NAGl.EPT/EN/31/2007 dated 11 December 2007 was cited as an instance in which the lower Tribunal rightly applied the effect of its streamlining
-*-
order. It was said that it would be a herculean task to expect the appellant
-*-
to call over 2558 witnesses to testify and to tender exhibits P1 - P2558, having regard to the special nature of election petition which is sui generis and the need for expeditious trial thereof.
-*-
It was also argued that the consideration by the lower Tribunal on
-*-
exhibits P1 - P2,558 being hearsay evidence was caught by the doctrine of issue estoppel, for having been already decided in its ruling of 4 January
-*-
2007: Ikeni v. Efamo (2000) 10 NWLR (Pt. 720) 1 at 11, 12 and 15; CA/A/ EPT/3/2007 Abubakar v. Yar’Adua & 8 10 Ors. judgment delivered on 26 February 2008.
-*-
According to the learned counsel, carbon copies of polling booth
-*-
results are duplicate originals and are produced as original of the process
-*-
and therefore admissible in evidence: Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Buhari v. I.N.E.C. & 4 Ors. CA/A/EP/2/2007 dated 26 February 2008; Okiki v. Jagun (207) 5 NWLR (Pt. 655) 19 at 26.
-*-
It was further argued that exhibits P1 - P2558 are admissible under G section 151 of the Evidence Act and that the respondents are prohibited from denying the truth contained therein: Menakaya v. Menakaya (1996)
-*-
9 NWLR (Pt. 472) 256 at 294; Njoku v. Ekeocha (1972) ECSLR 99;
-*-
Odu’a Investment Company Ltd v. Talabi (1991) 1 NWLR (Pt. 170) 761;
-*-
Ude v. Nwara (1993) (Pt. 278) 238.
-*-
H The learned counsel has in the same vein cited and relied upon Bello
-*-
v. Eweka (1981) 1 SC at 101, per Eso JSC at 118 and Seismograph Services
-*-
(Nig.) Ltd v. Ogbeni (1976) 9 - 10 SC 135 at 146 as well as section 163 of the Electoral Act, 2006, and contended further that the carbon copy of
-*-
polling booth results issued and signed by thePresiding Officers and delivered A to the representatives or agents of candidates are admissible as primary evidence under section 93 of the Evidence Act and under section 64 of the ElectoralAct, 2006.
-*-
It was finally submitted that a cursory look at all exhibit P1 - P2558
-*-
will show that while the 1st respondent obtained 59,892 valid votes, the B
-*-
appellant won the election having obtained 450,083 valid votes and one-
-*-
quarter of the votes cast in over two-thirds of all the Local Government Areas in Enugu State.
-*-
The 1st respondents issue No 4 relates to issues 8 and 9 which the
-*-
2nd - 3238th respondents’ issue No. 4 equally relates to the issues in question. Both counsel are ad idem that its not the law that once a document is C
-*-
admitted then the court must act on it: Dalek Ltd v. Ompadec (2007) 7 NWLR (Pt. 1033) 402 at 441; Adefarasin v. Dayekh (2007) 11 NWLR
-*-
(Pt. 1044) 89 at 115; Buhari v. Obasanjo .
-*-
It was argued that even if the said exhibits P1 - P2558 were validly admitted in evidence they had been so discredited by the evidence of RW1 D to RW18 and under cross-examination of the PW1 and PW2 (the appellant) that no court or Tribunal can safely rely thereon. We were urged to hold that the appellant has not proved that he was duly elected in accordance with the law.
-*-
It is a trite and fundamental rule of law, that where the authority E
-*-
constitutionally charged with theduty of announcing theresults of an election,
-*-
in the instant case INEC (the 2nd respondent), the said results so announced or declared are presumed to be correct, authentic and valid until the contrary
-*-
is proved. However, the presumption is arebuttable one. The onus of proving the incorrectness or falsity of the results so announced by the INEC or the
-*-
invalidity of the votes credited to the 1st respondent, rests squarely on the F
-*-
petitioner, in the instant case, the appellant: Buhari v. Obasanjo (2002) 3 NWLR (Pt. 941)1 at 253.
-*-
The learned counsel has urged upon this court to hold that exhibits P1 - P2558 were genuine and should be accorded a probative value on the
-*-
ground that they had already been admitted by the lower Tribunal. He also G urged us to invoke the powers of the court under section 16 of the Court of Appeal Act accordingly. However, its rather the law that, the fact that a document has been admitted, as in the instant case exhibits P1 - P2558, does not necessarily mean that significant weight should be automatically
-*-
attached thereto. Thefundamental principle is that, in determining the weight, H
-*-
if any, to be attached to a document rendered admissible as evidence by the
-*-
EvidenceAct, regard must be had to all the circumstances from which any inference can reasonably be drawn regarding the accuracy or otherwise of
-*-
the statement, especiallyregarding the question whether or not the document was made contemporaneously with the occurrence of existence of the facts stated, and whether or not the maker of the said statement had any incentive to conceal or misrepresent facts: Section 92(1) of the Evidence Act.
-*-
In essence therefore, the admissibility of a document and the evidential
-*-
value ascribable thereto are not one and the same thing. That is to say, the mere fact that exhibits P1 - P2558 were admitted in evidence by the lower
-*-
Tribunal, does not ipso facto impose a duty on the said lower Tribunal to automatically attach weight thereto with out a sufficient further proof: Adefarasin v. Dayekh (2007) NWLR (1044) 89 at 115 paragraph B;
-*-
Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 171 paragraphs
-*-
In the instant case, it was rather obvious, that for any serious weight to be attached to exhibits P1 - P2558 in question, the appellant ought to have pleaded and tendered two sets of election results, one of which could be stigmatized as genuine, and the other as false: Sabiya v. Tukur at 560;
-*-
Nwobodo v. Onoh at 34; Ojo v. Esohe & Ors. at 452 - 453, respectively.
-*-
The said exhibits P1 - P2558 were rejected by INEC vide the RW1 the INEC Enugu Logistics Officer, for having not been issued by the 2nd respondent, thus joining issues with the appellant. According to RW1 under cross-examination by the appellant’s counsel:
-*-
My job is to issue electoral material including result sheets. The result sheets are in booklets of 50 (fifty) with original
-*-
marked on tops. At the end of election, top copy is returned to me...
-*-
I have seen exhibit P1 serves shown to me about 5 (five) days ago. They are not the same thing with the originals in my
-*-
custody. The originals of exhibit P1 series are not in my
-*-
possession...
-*-
The stamp on the results that I saw was not the same as our own. Our own is smaller and sharper ...
-*-
See pages 624 -625 of the record.
-*-
What’s more, none of the party agents that represented the appellant in the field on the day of the election (14 April 2007 and 28 April 2007), who ought to have signed and collected copies of the election results from the numerous polling units, was called by the appellant to testify in support of the petition. Thus notsurprisingly, the lower Tribunal came to the conclusion, rightly in my view, at page 670 of the record thus:
-*-
“It is clear that in the light of the Supreme Court decision in
-*-
Buhari v. Obasanjo , the evidence of PW1 in relation to exhibits P1-P2548 in hearsay, and those documents should
-*-
not have been admitted through him. Even if these documents A
-*-
arenot expunged from therecords of this Tribunal, they deserve no probative value at all. Their wrong admission appet the respondent’s witnesses under cross-examination showed that these documents were not carbon copies of the original
-*-
documents in the custody of the Independent National Electoral B
-*-
Commission. Refer particularly to the testimony of RW1, Dr.
-*-
Anthonia Ekwo, the Logistic Officer of INEC.”
-*-
I have no hesitation whatsoever in upholding the above findings of the lower Tribunal as representing the unequivocal, and true position of the law on the issue. It is indeed a well trite law, that the type of evidence which
-*-
must be led in support of averments challenging figures or scores of C
-*-
candidates at an election ought to come directly from the officers that were actively in the field where the votes were counted and/or collated: Buhari
-*-
v. Obasanjo where in the Supreme Court held, per Akintan JSC thus: “The evidence of adduced in support of allegations challenging
-*-
the figures or scores of candidates at an election should come D directly from the officers who were in the field where the votes were counted and/or collated. Consequently, evidence from persons who received the figures or scores from officers collation of the votes are inadmissible because such ishearsay.”
-*-
Thus, in view of the above highlight, any lingering doubt on the E
-*-
worthlessness or lacking in evidential value of the said exhibits P1-P2558
-*-
would have by now been laid to rest. In the circumstance, the inevitable answer to issues 8, 9 and 10 is in the affirmative. The three issues in question are hereby resolved in favour of the respondents.
-*-
Issue No. 11.
-*-
Issue No.11 raises the question of who actually scored the majority F
-*-
of lawful votes cast at the election and satisfied the requirement of the Constitution. It was distilled from grounds XII and XV of the grounds of appeal. It is pertinent that issue 11 can not be divorced from the learned counsel’s argument on issues 1 -10 above. Having already determined and resolved those issues in favour of the respondents, it therefore goes without G saying that the issue No.11 should naturally and most inevitably be resolved
-*-
in favour of 1st respondent.
-*-
The submission of the learned counsel for the appellant was to the effect, that the lower Tribunal had erred in law in failing to give effect to
-*-
exhibits P1-P12558, thus occasioning a miscarriage of justice. That, the H
-*-
lower Tribunal was under a legal duly to tabulate the figures contained in
-*-
the said exhibits before coming to a conclusion as to who won the election. That, if it had done so, it would have seen that the appellant, and nor the 1st
-*-
respondent was the actual person that won the said election. As usual, references were made to the various paragraphs of the petition, especially paragraphs 22, 23, 24, 25 and Schedule A of the petition, regarding the computed figures he allegedly scored in each of the wards in the seventeen Local Government Areas of Enugu State. According to the learned counsel: The summary of the results is reflected in schedule filed with thepetition which shows that he the petitioner/appellant, scored
-*-
a total of 450, 083 valid votes and also obtained one-quarter of the votes cast in over two-thirds of all the Local Government Areas in Enugu State as against the total of 59,892 valid votes
-*-
scored by the 1st respondent.
-*-
See page 56 paragraph 4.164 of the appellant’s brief. I think the above
-*-
argument, with due respect to the learned counsel, is untenable and rather simplistic, to say the least. The pertinent questions that ought to be posed at this point in time are: (i) why for goodness sake, did the appellant abdicate his responsibility of calling the necessary witnesses especially his party
-*-
agents that represented him at the polling units and the Presiding Officers
-*-
that were in the field to testify on behalf thereof? (ii) why did he vehemently object to the admission of the sets of election results in the possession of INEC knowing fully well that failure to so admit the said results would be fatal to his case? In view of the plethora of authorities alluded to above, the
-*-
answers to the above two fundamental questions may not, in my view, be far-fetched. The answer to the second question was undoubtedly predicated
-*-
on the fact that the appellant knew quite well that if the election results in INEC’s possession were allowed by him to be so admitted as exhibits, they
-*-
would have been unfavourable thereto. The answer to the first question could only come from no person other than the appellant himself. That is to
-*-
say, he decided to dispense with the idea of calling the said vital witnesses
-*-
because, as he said it was “a herculean task” for him to do so. Contrary to the learned counsel’s contention that the number of the appellant’s witnesses were streamlined”, it is rather evident that out of the twenty witnesses he under took to call, he was able to present only two i.e. the PW1 and himself
-*-
(as PW2). Thus, his allegation that his failure to call a sufficient number of
-*-
witnesses was due to the streamlining of the number thereof by the lower Tribunal is rather untenable.
-*-
It is the position of the law, as alluded to above, that whereas in the instant case, a petitioner challenges the declaration of election results made
-*-
by the Independent National Electoral Commission, the onus lies on him to prove that the said results are not genuine. Unfortunately for the appellant,
-*-
he has woefully failed to discharge that onerous and fundamental duty or obligation imposed on him by law, albeit at his own peril. He has turned to
-*-
be the architect of his own misfortune: Section 150(1) of the Evidence Act; A
-*-
Buhari v. Obasanjo at 253.
-*-
Having considered the above postulations, the said issue No. 11 ought to be and same is accordingly hereby resolved in favour of the 1st respondents.
-*-
Issue 12 and 13: B
-*-
The issue No.12 raises the question of whether the 2nd respondent
-*-
(INEC) has conclusively proved that the appellant was issued with certified true copies of the results in INEC’s possession. It was distilled from ground IX of the grounds of appeal. Issue No.13, on the other hand, raised the
-*-
question of which party from the circumstances of this case, can the provisions of section 149(d) of the Evidence Act be invoked upon. The said C
-*-
issue 13 was said to have been distilled from ground X of the grounds of appeal. It is instructive that issue No.13 has been extensively addressed and determined in the pervious issues discussed above. As duly found there above, the appellant had every opportunity to discharge the legalduty imposed thereupon to call witnesses and equally adduce credible evidence vide his D party agent and Presiding Officers that were in the filed on the days of the two elections in question (14April 2007 and 28April 2007). He also had the opportunity to have the sets of election results in the possession of INEC produced and admitted vide the RW1. Most unfortunately however, the
-*-
appellant, for reason best known thereto, missed those golden opportunities. E
-*-
The said issue No.13 is accordingly hereby resolved in favour of the
-*-
respondent.
-*-
Issue No. 12, on the other hand, was distilled from ground IX of the grounds of appeal. It is evident from the record at page 612 thereof that the appellant had stated in his evidence thus:
-*-
“We obtained courtorder to get certified true copies of electoral F
-*-
materials but we were not given by INEC. They were promising day in day out. I reported to my lawyer that INEC refused to give us the materials.”
-*-
The 1st respondent under cross-examination was also recorded as having stated at page 625 of the record thus: G
-*-
“I have the knowledge of original result sheets given to Mr. Ojobo. This is the acknowledgment (certified) by petitioner’s agent and running mate.”
-*-
However, as it would appear from the record at pages 627- 629, the
-*-
1st respondent counsel’s attempt to tender the acknowledgment in question H
-*-
to establish that result sheets were given to the appellant based on the
-*-
lower Tribunal’s order was vehemently objected to and thwarted by the appellant’s learned counsel. The acknowledgment in question was rejected
-*-
and so marked as “Rejected R4 ” by the Tribunal. See also the appellant’s brief at page 60 paragraphs 4.178 - 4.180. Yet inspite of the above scenario , the appellant’s learned counsel urged upon the court to hold:
-*-
“That the application of the presumption in section 149 (d) of the Evidence Act against the appellant was erroneous in law
-*-
and ought to be set aside.”
-*-
In view of the submissions of the learned counsel, the authorities
-*-
referred to therein vis-a-vis the records of appeal, there is every reason for me to hold that the said issue No. 12 ought to be and same is accordingly hereby resolved in favour of the respondents. It is now trite, that in view of
-*-
the circumstances surrounding the instant case vis-a-vis the various findings
-*-
there above, the appellant was evidently the architect of his own misfortune,
-*-
with due respect to the learned counsel. Certainly, one can not fathom why the appellant’s learned counsel would deem it expedient to object to the production and admission of vitaldocuments resultingin the rejection thereof by the lower Tribunal only for him to now urge upon this court to invoke the
-*-
provisions of section 149(d) of the Evidence Act against the respondents. I
-*-
think, that’s certainly not fair at all.
-*-
It is trite that justice is fairness in all the ramifications thereof. That is, fairness in the adjudication of matters between the parties by the court. In the circumstance, the said issue No. 12 is accordingly resolved in favour
-*-
of the respondents.
-*-
Issue No.14.
-*-
The last issue is issue No.14, which raises the question of whether the averment in paragraph 2 of the 1st respondents’ reply to the petition has
-*-
amounted to an admission of paragraphs 1 and 2 of the petition. The issue was distilled from ground IV of the appeal. Both paragraphs 1 and 2 of the
-*-
petition contained pages 103 (Vol. 1) of the record to the following effect: That I was a candidate under the platform of theAccord party for the Governorship election of Enugu State in 2007 and ought to have been returned as elected at the above election. That the gubernatorial election in Enugu State was held on G April 14 and 28 2007. I and Mr. Sullivan Iheanacho Chime, that 1st respondent, were candidates; and on April 29 2007,
-*-
the 4th respondent declared that the 1st respondent received 811,798 votes and that I received 15,287 votes and the 1st respondent was declared by the 4th respondent to be duly
-*-
H elected.
-*-
On the other hand, paragraph 2 of the 1st respondent contained at page 1
-*-
(Volume 2) of the record is to the following effect:
-*-
“2. The 1st respondent admits paragraphs 1 and 2 of the petition
-*-
but adds in respect of paragraph 2 that there were other A candidates in the said election aside the petition and the 1st respondent.”
-*-
The appellant’s learned counsel submitted interalia , thatthe averment in paragraph 2 of the 1st respondent’s reply to the petition has amounted to
-*-
an admission of the averments in paragraphs 1 and 2 of the petition referred B
-*-
to above. For the effect of the admission of the two paragraphs in question,
-*-
the learned counsel cited and relied upon Adeleke v. Osha (2008) 16 NWLR (Pt. 1006) 608 ( ratio 41) to the effect thus:
-*-
“An alleged fact which is admitted by an adverse party in a
-*-
suit need not be proved and the court is enjoined to accept such fact as established without proof .” C
-*-
See also Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60 ratio 11;
-*-
Bunge v. Governor, Rivers State (2006) 12 NWLR (Pt. 995) 573 ratio 2. It was submitted that since the 1st respondent had admitted that the appellant ought to have been returned as elected in the said election, this
-*-
court is enjoined to accept such fact as established and accordingly give D judgment based on the alleged admitted facts. The 1st respondent’s counsel has addressed the vexed issue under his issue No.3. The counsel referred
-*-
to paragraph 1 of the petition as well as paragraph 12 (2) of theFirst Schedule to the ElectoralAct, 2006, and submitted that the 1st respondent has complied
-*-
with the said provision by filing a 34 paragraph reply to the petition. He also E
-*-
referred to paragraphs 4, 7 and 9 of the reply thereof, and thereby argued
-*-
that it’s the position of the law that facts averred in a pleading are not considered in isolation, but the general drift of the defence or the counter- affidavit are considered historically: George v. Dominion Flour Mills Ltd
-*-
(1963) 1 All NLR 71.
-*-
It was argued that it would be foolhardy to come to the conclusion F
-*-
that having stated that paragraphs 1 and 2 of the petition, were admitted without more, it should be taken as the end of the game. That, even if paragraphs 1 and 2 of the 1st respondent’s reply appear to have admitted paragraphs 1 and 2 of the petition, the other parts of the 1st respondent’ s reply vehemently deny the averments contained in the petition, to the effect G that the petition’s averments that he ought to have been returned as elected
-*-
in the said election: Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 142; Att.- Gen., Anambra State v. Onuselogu Ent. Ltd (1987) 4 NWLR (Pt. 66) 547.
-*-
I have accorded a critical consideration upon the submissions of the H
-*-
learned counsel on the vexed issue, and the relevant averments contained
-*-
in the petition and 1st respondent’s reply thereto. It is not in doubt that the said paragraph 2 of the 1st respondent’s reply could be considered to have
-*-
succinctly admitted by the averments in paragraphs 1 and 2 if the said paragraph were to be read in isolation of the33 (thirty-three) other paragraphs making up the entire reply of the 1st respondent. However, to read the said paragraph 2 in isolation of the rest of the 33 (thirty-three) other averments comprising the entirety of the 1st respondent’s reply would lead to a sheer absurdity and gross injudiciousness.
-*-
I think there is a need for me to reiterate the fundamental and well
-*-
trite principle, that in dealing with pleadings, it behoves on the court to read all paragraphs therein contained together, and not merely few paragraphs in isolation. That’s so, because it is the sum total of the pleadings, be it a
-*-
statement of claim or defence, that normally state the case of the party. It
-*-
would be unjust to invoke only a few isolate paragraphs in arriving at a
-*-
conclusion: Ngige v. Obi at 142; Att.-Gen., Anambra State v. Onuselogu Ent. Ltd. Thus, I view of the above highlight, it has become rather obvious that the totality of the averments contained in the 34 paragraphs of the 1st respondent’s reply are to the effect that the 1st respondent has denied each
-*-
and every material allegation of fact contained in the petition as if same has
-*-
been set out and traversed seriatim”. And I so hold. The said issue 14 of the appellant therefore ought to be, and same is hereby resolved in favour of the 1st respondent.
-*-
The law is now trite, that its only where a trial court or Tribunal fails
-*-
to make findings on material and fundamental issues of facts, or wrongly applies the evidence adduced by parties, that the appellate court to which
-*-
the appeal is lodged has a duty to allow the appeal and set aside the said judgment or decision: Balogun v. Agboola (1974) 10 SC 111; Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35 91; Ebba v. Ogodo (1984) 1 SCNLR
-*-
372; Okoro v. Uzoka (1978) 5 SC 77, 86; Chinwendu v. Mbamali (1980)
-*-
3 -4 SC 31; Ibodo v. Enarofia (1980) 5 - 7 SC 42; Enang v. Adu (1981) 11
-*-
- 12 SC 25; Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) 371 at 374,
-*-
respectively.
-*-
It is instructive that the appellant has passionately urged upon the court to allow the appeal, set aside the judgment and declaration made by
-*-
the lower Tribunal in favour of the 1st respondent and accordingly make the
-*-
following orders:
-*-
A declaration that the petitioner/appellant was duly elected and ought to be, and is hereby returned as the duly elected Governor of Enugu State in the election held in Enugu State
-*-
on the 14 April 2007 having obtained the highest number of lawful votes cast and obtained one-quarter of the votes cast
-*-
in two-thirds of the 17 (seventeen) Local Government Areas in Enugu State.
-*-
An Order directing the Chief Judge or any other Judge of A
-*-
Enugu State to forth with swear-in theappellant as the Governor of Enugu State.
-*-
However, in view of the circumstances surrounding the case as a whole, the submissions of the learned counsel in the respective briefs of
-*-
argument thereof and thenumerous illuminativeauthorities referred to therein B
-*-
vis-a-vis the records of the lower Tribunal it would not only be naive but
-*-
also injudicious for this court to grant such prayers.
-*-
Undoubtedly, there is one thing to which every one in this country,
-*-
citizen and non-citizen alike, is entitled. And that is, the fundamental right to
-*-
fair hearing, as cherishingly enshrined in the Constitution of the Federal Republic of Nigeria, 1999 thus: C
-*-
36-(1) In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other Tribunal established by
-*-
law and constituted in such manner as to secure its D
-*-
independence and impartiality.
-*-
The fundamental principle of fair hearing is undoubtedly not a mere technical, philosophical or euphemistic expression. It is indeed a doctrine of substance: Bamaiyi v. State (2007) FLWR (Pt. 46) 956 at 974, paragraphs
-*-
D - E; Kotoye v. C.B.N (1989) NWLR (Pt. 98) 419; Atano v. Att.-Gen., E
-*-
Bendel State (1988) 2 NWLR (Pt. 75) 201, respectively.
-*-
In the same vein, it should be reiterated that the fundamental object of a court or Tribunal is to find out the truth, and to do justice to the parties
-*-
according to law. Whereas, in the daily pursuit thereof the advocate or counsel as a minister in the temple of justice plays an honourable and eminent
-*-
role in the administration of justice. As attested to by Lord Eldon LC, the F
-*-
legendary jurist thus:
-*-
“Truth is best discovered by powerful statements on both sides of the question”.
-*-
Ex parte Lloyd (1822) mout.70 at 7n.
-*-
Before putting the last dot in this judgment, I have deemed it expedient G
-*-
to reiterate that in the course of adjudicating between parties, a Judge has an enviable albeit daunting duty of keepinghis vision unclouded: In Re Enoch & Zaretzky, Bock & Co. (1910) 1 KB 327 cited by Lord Denning MR (of remarkably blessed memory) in the Due Process of Law, Published by the
-*-
Butter Worths, London, 1980 at page 60 to the effect inter alia, thus: H
-*-
It is well very well to paint justice blind, but she does better
-*-
without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the
-*-
truth: and the less dust there is doubt the better. Let the advocates one after the other put weights into the scales-the “nicely calculated less or more” but the Judge at the end decides which way the balance tilts, be it ever so slightly.
-*-
As Judges, we are not unmindful of the vicious nature of electoral
-*-
malpractices and the attendant negative consequences thereof to the public service (of which the Judiciary forms an integral part) in particular, and the
-*-
society at large. Of the worst vicious forms of electoral malpractices, is over-voting or rigging: Ayotunde v. Olukorodeare & Ors. (1999) 3 NWLR (Pt. 595) 469 in which this court held, per Aderemi JCA (as he then was, in
-*-
his characteristic style) thus:
-*-
Rigging or over- voting is a serious electoral malpractice. It is
-*-
a most disgraceful and dishonest act that should be condemned in all its ramification, Itis on illegal act.And no persons involved in any form of immoral or illegal act or transaction shall be allowed to come to court to seek a redress no polluted hand
-*-
shall touch the pure foundation of justice.
-*-
Undoubtedly, any declaration or return at an election gained through the hydra-headed and most vicious electoral vice or evil known as rigging or over-voting, is a pure farce and pyrrhic victory. That’s to say, it was not a victory because the so called winner must have lost so much in winning
-*-
the election i.e. losing so much in terms of honour, credibility and prestige In the eyes of the people. It is needless to add, that he has also earned for
-*-
himself and the accomplices thereof the wrath of the Most High. The best of all Judges: Ngwu v. Mba (1999) 3 NWLR (Pt. 595) 400 at 409, per
-*-
Fabiyi JCA; Hon. Justice Denton-West v. Muoma SAN (2008) 6 NWLR (Pt. 1083) 418 at 451 - 452 paragraphs H - C; wherein this court recently
-*-
held, per Saulawa JCA thus:
-*-
And the importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law can not be overemphasized. There is no doubt that public confidence in the independence of the courts in the integrity of Judges
-*-
that man such courts, and in the impartiality and efficiency of
-*-
the administration of justice as a whole, play a great role in sustaining thejudicial systemof notion. I think it was Mr. Justice Frank Furter, the eminent and fearless US Jurist who once remarked that:
-*-
The court’s authority... possessed of neither the purse nor the sword...
-*-
Ultimately rests on sustained public confidence in its moral sanction: Baker v. Carr. Supreme Court of US
-*-
(1962) 369 US 186. A
-*-
In the instant case, having regard to the above postulations vis-a- vis the findings and resolving of all the fourteen issues in question in favour of the respondents, I have no hesitation whatsoever in coming to the inevitable conclusion that the instant appeal is grossly devoid of merit and same is
-*-
accordingly hereby dismissed by me. B
-*-
Consequently, the judgment of the lower Tribunal delivered on 18
-*-
January 2008 dismissing the appellant’s petition No. NAGL/EPT/EN/GOV/ 37/2007, is hereby affirmed. The two sets of respondents are entitled to costs of N30,000.00 ( thirty thousand naira) each against the appellant.
-*-
ADEKEYE JCA: I was privileged to read in draft the judgment just delivered by my learned brother, I.M.M. Saulawa JCA . I agree with his reasoning and conclusion. However, I shall briefly add a few words about my observation in respect of thisappeal. First, I cannotbut focus my attention
-*-
on paragraphs2.9 to 2.28 pages3-7 of the appellant’s brief which is captioned D preliminary issue”. In these paragraphs, the learned counsel for the appellant attempted to interpret section 147(1) of the Electoral Act, 2006 so as to define the distinction between declaration and nullification in a Governorship Election. The learned counsel argued the preliminary issue extensively just
-*-
before highlighting the issues for determination as formulated by the appellant. E
-*-
I consider the procedure adopted by counsel for the appellant as a novelty
-*-
as not only is it not recognized under Order 17 of the Court of Appeal Rules, 2007 which is all about filings of briefs in an appeal. Order 10 on preliminary
-*-
objections makes no provision for such procedure. The rules of court particularly the Court of Appeal Rules, 2007 are meant to be strictly followed
-*-
and obeyed as stipulated. This court has a right to jealously guard the F
-*-
application of the rules and under no circumstance will the court concede to any attempt by counsel to stretch the procedure to cover what was not envisaged therein.
-*-
In thecircumstance, I agree with the submission of the learned counsel
-*-
for the 2nd - 3238th respondents that paragraphs 2.9 - 2.28 of the appellant’s G brief must be expunged from the recordsof this court for the undermentioned reason:
-*-
The argument proffered by the learned counsel for the appellant therein before the issues for determination are not
-*-
related to the grounds of appeal and the issues distilled from H
-*-
the grounds.
-*-
The preliminary issues were not raised before the lower Tribunal.
-*-
3. If he intends to raise the issues for the first time on appeal, he can only do so by obtaining the leave of this court.
-*-
Paragraphs 2.9-2.28 are hereby discountenanced and expunged from record as being irrelevant.
-*-
Before I go to consider the issues for determination raised by the
-*-
appellant it is pertinent to give a clear picture of the grounds on which he questioned the election. In Vol.1 of the record of appeal at page 81 the
-*-
petition of the petitioner/appellant reads:
-*-
“Wherefore, you petitioner prays that it may be determined
-*-
and declared that the said 1st respondent, Mr. Sullivan Iheanacho Chime was not validly elected or returned having
-*-
not polled the highest number of lawful votes cast at the
-*-
Gubernatorial elections of 14April 2007 and that the petitioner Mr. Ugochukwu Agballah be declared validly elected or returned, having polled the highest number of lawful votes cast at the Gubernatorial election of 14 April 2007 and having
-*-
obtained one-quarter of the votes cast at the election in each
-*-
of at least two-thirds of the Local Government of Enugu State.”
-*-
Section 145 of the Electoral Act, 2006 reads:
-*-
“145(1) An election maybe questioned on any of the following grounds:
-*-
(a) That the respondent was not duly elected by majority of lawful votes cast at the election.”
-*-
On the contests of Election according to the First Schedule of the Electoral Act, 2006, paragraph 4 sub-paragraph 3(a) states:
-*-
Paragraph 3 - The election petition shall further:
-*-
“(a) conclude with a prayer or prayers as for instance, that the
-*-
petitioner or one of the petitioners be declared validly elected
-*-
or returned, having polled the highest number of lawful votes cast at the election or that the election may be declared nullified as the case may be.”
-*-
I shall extract the salient facts relied upon by the petitioner/appellant
-*-
from the facts averred in the petition as follows:
-*-
Paragraph 7:
-*-
Your petitioner avers that the votes as announced by INEC in which it purportedly credited to the 1st respondent811,798 votes and to the petitioner 15,287 votes were not correct figures or correctly added number of lawful
-*-
votes cast at the election of April 14 2007.
-*-
Paragraph 9:
-*-
Your petitioner avers that 811,798 votes credited to the 1st respondent are invalid votes because they do not represent the valid votes cast for the
-*-
1st respondent by the electorate at the polling units in Enugu State on April A
-*-
14 2007.
-*-
Paragraph 15:
-*-
Your petitioner avers that the INEC primary voters’ list, 2007 for Enugu State there exists a lot of unqualified voters by reason of non- inclusion
-*-
of their photographs in the voters’ register. The petitioner shall therefore B
-*-
establish that the votes credited to the 1st respondent are invalid votes for
-*-
the reason that his votes exceeded the registered qualified voters and the number of accredited voters in each polling unit and Constituency.
-*-
Paragraph 16:
-*-
Your petitioner avers that the votes credited to the 1st respondent
-*-
are invalid votes for the reason that the votes exceeded the number of C
-*-
ballot papers allocated by INEC to Enugu State for the election of 14 April 2007.
-*-
Paragraph 20:
-*-
Your petitioner avers that from the results issued by INECand summed
-*-
up by the petitioner’s agents it was crystal clear that the petitioner won the D election by obtaining the highest number of valid votes cast at the election and also obtained one-quarter of the votes case in over two-thirds of all the Local Government Areas in Enugu State while the 1st respondent obtained
-*-
59, 892 votes. The petitioner received 450,083 votes to win the election.
-*-
Paragraph 21: E
-*-
Your petitioner avers that 811,798 votes credited to the 1st respondent
-*-
by INEC are invalid votes and the 15,287 votes credited to the petitioner were also wrong.
-*-
Paragraph 27:
-*-
Your petitioner avers that the 811,798 votes credited to the 1st respondent by INEC were invalid votes for the reason that the turnout was F
-*-
low. The 1st respondent’s votes exceeded the number of registered, qualified and accredited voters that voted at the election. Again, the 1st respondent’s result is invalid for reason of being a product of 2 elections in contravention of the Constitution.
-*-
Paragraph 28” G
-*-
Your petition avers that the 1st respondent at the time of the election was not qualified to contest the election because he contested with an unqualified running mate. No requisite notice of 60 days as prescribed by the law was given INEC or cogent or verifiable reason before the purported
-*-
replacement of the 1st respondent’s running mate. H
-*-
Paragraph 31:
-*-
Your petitioner avers that the 1st respondent enjoyed undue advantage over your petitioner in the gubernatorial elections in Enugu State as all the
-*-
INEC Presiding Officers are active members of a political party. Your petitioner shall establish at the trial that all INEC Presiding Officers are card carrying members of the Peoples’Democratic Party.
-*-
Paragraph 31(a):
-*-
Your petitioner avers that the ballot papers in INEC’s possession
-*-
were mixed with multiple thumbprint ballot papers. The petitioner will before or at trial move this Tribunal for an order for forensic analysis to be conducted
-*-
on the ballot papers to ascertain multiple thumbprinting (valid and invalid votes).
-*-
Paragraph 31(b):
-*-
Your petitioner also avers that any unit result Forms EC8A, EC8B,
-*-
EC8C, EC8D in the possession of INEC were written by few handwriters
-*-
and not by designated Presiding Officers, ward Returning Officers, and the Returning Officers at the Local Governments in all the polling units, wards collation and Local Governments collation centre. The petitioner will before or atthe trial move this honourable Tribunal for an order for forensic analysis
-*-
to be conducted on the result forms.
-*-
The petitioner claimed that election took place in almost al the Local Governments of Enugu State. The bone of contention is that the only authentic result was that which the Presiding Officers in each polling unit counted the votes in the polling stations entered the votes scored by each candidate in
-*-
Form EC8A, signed and stamped the Form EC8A and countersigned by agents. After the results were announced at the polling stations, carbon
-*-
copies were issued to the petitioner’s agents. The petitioner/appellant averred that he would rely on the carbon copies of the polling booth results issued by the Presiding Officers to establish that the petitioner and not the 1st
-*-
respondent won the election of 14 April 2007.
-*-
In a nutshell, the petitioner/appellant attempted to question and
-*-
challenge the conduct of election held on 14 and 28 April 2008 in the Enugu Governorship race by establishing falsification of results by inflation of the figures entered on the election result Forms EC8A-D, and manipulation of votes. The appellant attributed these offences to:
-*-
(1) Result sheets being handwritten by party officials and not designated INEC officials; INEC officials being Peoples’ Democratic Party members; Ballot papers in possession of INEC mixed with multiple thumbprint ballot papers leading to invalid votes; (4) Invalid votes, votes exceeded ballot papers allocated, votes cast at the polling booths not from registered, qualified, and
-*-
accredited voters;
-*-
(5) Invalid votes cast at the election held on 28 April 2008 deemed
-*-
by petitioner as unconstitutional. A
-*-
In determining whether or not an election was conducted substantially in accordance with the constitution and the ElectoralAct, 2006 the court will look at the circumstances of the case, including the state of pleadings, especially the credibility of the petitioner’s position and nature
-*-
and substance of complaintsof the petitioner, the attitude of the functionaries B
-*-
charged with the conduct of the election and whether the omissions
-*-
complained of by the petitioner, even if proved, affected the conduct of the election: Okoroji v. Ngwu (1992) 9 NWLR (Pt. 263) 113 ; Ajadi v. Ajibola
-*-
(2004) 16 NWLR (Pt. 898) 91.
-*-
Theappellant in his petition can only plead facts and not the evidence
-*-
or the law resulting from the fact. The appellant’s averments have to be C
-*-
clothed with evidence or any legal consequences to the satisfaction of the court: Peenok Investments Ltd v. Hotel Presidential Ltd (1982) 12 SC 1;
-*-
U.A.C. v. Saka Owoade 13 WACA 201.
-*-
The 2006 Electoral Act vested in the Independent National Electoral Commission power to make regulations, guidelines and manuals for the D purpose of giving effect to the provisions of the Act and its due administration. The procedure in an election petition is largely governed by
-*-
a law made especially to regulate the proceedings. Thus, it is imperative that in an election petition, the procedure laid down in an Electoral Act and
-*-
the guidelines in manual for election officials must be strictly complied with: E
-*-
Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446; Abubakar v. I.N.E.C.
-*-
(2004) 1 NWLR (Pt. 854) 207; Samamo v. Anka (2000) 1 NWLR (Pt.
-*-
640) 283.
-*-
By virtue of section 150 (1) of the EvidenceAct, when any judicial or official act is shown to have been done in a manner substantially regular,
-*-
it is presumed that formal requisites for its validity were complied with. F
-*-
Accordingly, in the absence of a complaint against the conduct of an election by an electoral officer, there is a presumption of regularity of the electoral officer’s conduct of the election and a further presumption that the result of the election is correct. Similarly, where the documentary evidence tendered
-*-
by the respondents in proof of their assertion that the election was held in a G State or a Constituency, does not in its face show any irregularities, the court would hold that the election was conducted in substantial compliance with the principles of the Electoral Act, 2006: Omoboriowo v. Ajasin (1984)
-*-
1 SCNLR 108; Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241;
-*-
Finebone v. Brown (1999) 4 NWLR (Pt. 600) 613; Odunsi v. Odunsi H
-*-
(1979) 12 NSCC 57.
-*-
Where no allegation is made against an election and no evidence is adduced on the conductof theelection, the presumption of irregularity enures
-*-
in its favour. In any election, the electoral officials have a duty to produce only the hard scores of the candidates at the election. Any manipulation of the result by the arbitrary addition or subtraction to the scores of the candidates produces a result different from that expressed by the electorate and is liable to cancellation. I intend to expatiate on certain aspects of the complaints of the petitioner/appellant.
-*-
The petitioner/appellant averred that he would at trial rely on the
-*-
carbon copies of the polling booth results issued by the Presiding Officers Form EC8As to establish that the petitioner and not the 1st respondent won the election of April 14 2007.
-*-
They were admitted in evidence as P1 to P2548. The lower Tribunal
-*-
after evaluation of evidence found that exhibits. P1-P2548 were tendered
-*-
through PW1 Mr. Solomon Achikanu one of the party agents and campaign coordinators for the petitioner. None of the agents for the petitioner who allegedly collected exhibits P1-P2548 was called by the petitioner as a witness. The Tribunal in assessing the probative value to be attached to the
-*-
documents discarded them as hearsay evidence as such evidence led in support of allegation in which figures or scores of candidates at an allegation are being challenged should come from officers who were on the field
-*-
where the votes were counted and collated: Buhari v. Obasanjo .
-*-
The documents could not have been admitted through PW1 as that
-*-
would amount to hearsay. Hearsay evidence is that where a witness gives evidence on a fact relying on information by another person. Such evidence
-*-
has no probative or evidential value not being that of an eyewitness. It amounts to a criminal offence of falsification of figures or results as the case may be for any person to unlawfully decrease or increase the lawful
-*-
votes scored by a candidate at an election. In order to sustain an allegation
-*-
of criminal offence of inflation of votes at an election, it must be proved
-*-
beyond reasonable doubt. In the instant case, the appellant failed to prove falsification of results through exhibits P1 - P2548 beyond reasonable doubt: Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352; Omoboriowo v. Ajasin
-*-
(1984) 1 SCNLR 108; Nnachi v. Ibom (2004) 16 NWLR (Pt. 900) 614. A
-*-
party in an election who alleges that he was entitled to more votes at an election than he was credited with or that his opponent scored lesser votes must: Obtain leave of court to file the head of votes; File the list of such votes to support his complaint that his own votes were short counted or given to his opponent; Show that those votes when added to his own would have
-*-
tilted the election in his favour: Ojukwu v. Onwudiwe (1984) 1 SCNLR 247; Anozie v. Obichere (2006) 8 NWLR (Pt.
-*-
981) 140. A
-*-
The court also referred to the evidence of respondent witnesses 1
-*-
- 18 at pages 637-678 of the record who testified that exhibits P1 - P2548 were different from the genuine Forms EC8A’s used at the election; and in the possession of INEC. The petitioner/appellant failed to produce the 2nd
-*-
set of result Form EC8A’s that is to say the polling booth results by which B
-*-
the 1st respondent was declared the winner by INEC which the petitioner
-*-
alleged to be wrong even though the result forms were issued to them by INEC and they brought them out during the inspection of documents. The results must be part of evidence so as to enable the Tribunal the opportunity
-*-
to compare the two sets of results as required by law. An effort made by
-*-
the 1st respondent to tender the results as pleaded in paragraph 33 of the C
-*-
1st respondent’s reply was met with stiff opposition by the petitioner/ appellant. It is trite that a petitioner who alleges falsity of election results, can only succeed in proving his allegation if he produces two sets of results the one that is correct and the other that is false. In this appeal, though the
-*-
petitioner/appellant alleged falsity of the election results, he was not able to D
-*-
tender documents to prove the falsity of the result and consequently failed to discharge the onus of proving the falsity of the election result as alleged: Nwobodo v. Onoh (1984) 1 SCNLR 1; Sabiya v. Tukur (1983) 11 SC 109;
-*-
Atukpekpe v. Joe (1999) 6 NWLR (Pt. 607) 428; Izuoga v. Ndenwa (1999)
-*-
6 NWLR (Pt. 608) 582; Oyegan v. Igbinedion (1992) 2 NWLR (Pt. 226) E
-*-
747; Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91; Adun v. Osunde
-*-
(2003) 16 NWLR (Pt. 847) 643; Wali v. Bafarawa (2004) 16 NWLR (Pt.
-*-
898) 1; Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352; Buhari v.
-*-
Obasanjo (2005) 2 NWLR (Pt. 910) 241; Yusuf v. Obasanjo (2005) 18
-*-
NWLR (Pt. 956) 96.
-*-
The petitioner/appellant failed to lead evidence in support of F
-*-
averments in paragraph 31(a) and 31(b) of the pleadings such evidence is supposed to establish that the result sheets in possession of INEC were different from P1-P2548 used at the election. The appellant claimed to have abandoned these two paragraphs which were meant to establish an important aspect of the complaint of the appellant under section 145 (c) of G the Electoral Act. The results Forms EC8Ato EC8D in possession of INEC compared with that in his possession could have revealed the genuine and authentic score of the petitioner/appellant and the respondent.
-*-
Where evidence is not led in support of an averment in pleadings,
-*-
the averment is deemed to be abandoned and would be struck out by the H
-*-
court unless it has been admitted by the adverse party. Where a particular
-*-
averment is admitted, a plaintiff may nevertheless be required to adduce some evidence in support of the admitted fact and where he had not adduced
-*-
All FWLR Agballah v. Chime (Jega JCA) 1551
-*-
any evidence in support of such averments they are deemed to have been abandoned: Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Emegokwue v.
-*-
Okadigbo (1973) 4 SC 113.
-*-
Where an election is not conducted in substantial conformity with the electoral law it ought to be nullified. A breach of the provisions of the
-*-
electoral law and guidelines made pursuant to the electoral law can affect the legitimacy of the election conducted. In determining whether or not
-*-
non-compliance with electoralrules alleged in an election, petition is substantial or has substantially affected the result of the election the evidence adduced before the court shall be relied upon by the court. In the instant appeal from
-*-
the evidence on printed record, the petitioner did not establish that the non-
-*-
compliance with the ElectoralAct in the conduct of the election substantially
-*-
affected the election so as to warrant the nullification of the entire election. The petitioner in an election petition has the burden of proving the existence of the facts he alleged. In the instant case, the petitioner/appellant had the burden of proving that theelection was vitiated bysubstantial non-compliance
-*-
with mandatory statutory requirements and irregularities that substantially affected theoverall result in the Governorship election. He failed to discharge this burden: Akinfosile v. Ijose (1960) SCNLR 447; Awolowo v. Shagari
-*-
(1979) 6-9 SC 51; I.N.E.C. v. Ray (2004) 14 NWLR (Pt. 892)92; Igodo v.
-*-
Owulo (1999) 5 NWLR (Pt. 601) 70.
-*-
The return of an election will not be voided where the Tribunal or court is satisfied that there is substantial compliance with the law governing
-*-
the conduct of the election: Ibrabim v. Shagari (1983) 2 SCNLR 176. By virtue of section 27(1) of the Electoral Act, 2006, “where a date has been appointed for the holding of an election and there is reason to believe that a
-*-
serious breach of the peace is likely the occur if the election is proceeded
-*-
with on that date, or it is impossible to conduct the elections as a result of
-*-
natural disasters or other emergencies, the commission may postpone the election and shall in respect of the area or areas concerned appoint another date for the holding of the postponed election.” Postponement of the election to the 28 April 2008 was quite valid and constitutional.
-*-
With further reasons given in the lead judgment, I agree that this appeal is devoid of merit. It is accordingly dismissed. I adopt the consequential orders made as mine. JEGA JCA: I have had the advantage of reading in draft the judgment delivered by my learned brother, Saulawa JCA. He has in a very admirable
-*-
manner painstainkingly and meticulously treated all the salient issues raised in this appeal that any attempt to make any meaningful contribution to the
-*-
judgment would amount to repetition of issues already comprehensively A treated in the lead judgment. I therefore agree with the lead judgment and adopt it as mine.
-*-
In conclusion, this appeal is totally lacking in merit and same is accordingly dismissed. The judgment of the lower Tribunal delivered on 18
-*-
January 2008 dismissing the appellant’s petition No. NAGLIEPTIEN/GOV/ B
-*-
37/2007 is hereby affirmed. I abide by the order of cost contained in the
-*-
lead Judgment.
-*-
BADA JCA: I had a preview of the lead judgment delivered by my learned brother, Ibrahim Mohammed Musa Saulawa JCA and I agree with him C
-*-
entirely that this appeal lacks merit.
-*-
I however want to make some comments by way of emphasis. The counsel for the 2nd to 3238th respondents filed a notice of preliminary objection in which he urged that paragraphs 2.9 to 2.28 on pages 3 to 7 of
-*-
the appellants, brief of argument and also paragraphs 4.55 to 4.70 on pages D
-*-
31 - 35 of the same brief be struck out for being incompetent.
-*-
The learned counsel for the appellant in paragraphs 2.9 to 2.28 pages 3 to 7 of his brief made reference to the provisions of sections 136 and 147 of the Electoral Act, 2006 and he submitted that subsection (1) of
-*-
section 147 of the said Act gives the Tribunal power to nullify an election E
-*-
once it determines that a candidate who was returned as elected was not
-*-
validly elected on any ground. He went further in his argumentthat subsection
-*-
(2) of section 147 gives the Tribunal power to declare as elected a candidate who polled the highest number of valid votes cast at the election where the Tribunal determines that a candidate who was returned as elected was not
-*-
validly elected on the ground that he did not score the majority of valid votes F
-*-
cast at the election.
-*-
He concluded that where the Tribunal determines that several grounds exist or have been established, the one entitling the Tribunal to declare the candidate as elected and another entitling the Tribunal to annul the election, the Tribunal is under a legal obligation to apply subsection (2) G of section 136 of the Electoral Act 2006. This in effect means that the powers of the Election Petition Tribunal to annul are subject to the powers
-*-
to declare a candidate elected.
-*-
Also, in paragraphs 4.55 to 4.79 at pages 31 to 35 of the appellant’s
-*-
brief of argument, the learned counsel for the appellant referred the fact H
-*-
that RW1 swore to two different witness statements. He submitted that the
-*-
filing of two witnesses’statements by one witness in support of a reply, is an abuse of judicial process. He relied on the case of Amaefula v. State
-*-
A (1988) 2 NWLR (Pt. 75) at 156.
-*-
He therefore urged that RW1’s evidence be struck out. He relied on Mohammed Buhari & Anor. v. I.N.E.C. & 4 Ors. unreported judgment of the Court of Appeal. Abuja Division in suit No. CA/AIEPT/2/2007 dated 26 February 2008.
-*-
It was also contended by the learned counsel for the appellant that the statement on oath of the witnesses for the respondents were not sworn.
-*-
Before examining the position of the law on the preliminary issues raised by the learned counsel for the appellant, it is necessary to comment on the procedure adopted by the learned counsel for the 2nd to 3238th
-*-
respondents in raising his objection.
-*-
As could be seen from the brief of argument filed on behalf of the
-*-
2nd to 3238th respondents, the preliminary objection was incorporated and argued under issue 1, this in my humble view is wrong because an issue formulated in a brief of argument must be predicated upon a valid ground of appeal. And where an issue is not distilled from any ground of appeal, such
-*-
an issue must be declared incompetent and liable to be struck out.
-*-
Therefore, since the said issue No.1 in the 2nd to 3238th respondents’ brief of argument was not distilled from any ground of appeal, it is in my view incompetent and it is hereby struck out.
-*-
Be that as it may, it is my view that I have a duty to express my
-*-
views on the said preliminary issues raised by learned counsel for the appellant.
-*-
It is settled that the appellate jurisdiction of all courts are donated by statute and the jurisdiction ignited by valid notice and grounds of appeal. The appellant must therefore only canvass issues that are anchored on a
-*-
ground of appeal. Where an appellant as in this case canvassed issues that
-*-
are not supported by any ground of appeal, that argument will be
-*-
discountenanced: Ideozu v. Ochoma (2006) 4 NWLR (Pt. 970) 364 at 390. A glean at the entire grounds of appeal filed on behalf of the appellant showed thatthe argument being canvassed is not based on any of the grounds and since this court while exercising its appellate jurisdiction can only deal
-*-
with issues arising from the court below, therefore where an appellant canvasses issues not arising from the decision of the court below, the issue will be discountenanced. In some exceptional circumstances, the appellate
-*-
court may allow fresh issues to be canvassed on appeal provided that leave of court is obtained: Oyakire v. State (2006) 15 NWLR (Pt. 1001) 157 at
-*-
170; Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (Pt. 973) 330.
-*-
It should be noted that the combined effect of sections 136(2) and
-*-
147(2) of the Electoral Act, 2006 on the petition of the appellant was not raised in the Tribunal below. No leave of this court was obtained to raise it
-*-
for the first time on appeal. The said issue even though called preliminary A
-*-
issue by the appellant is not covered by any of the grounds of appeal.
-*-
It is therefore my view that the argument of the learned counsel in this regard goes to no issue and it should be discountenanced.
-*-
Consequently, it is my view that the arguments based on paragraphs
-*-
2.9 to 2.28 on page 3 to 7 and paragraphs 4.55 to 4.70 on pages 31-35 of the B
-*-
appellant’s brief of argument are incompetent and they cannot be taken into
-*-
consideration in the determination of this appeal.
-*-
I will also comment on the issue whether the Tribunalbelow properly considered the issues for determination and the pleadings relating thereto.
-*-
The learned counsel for the appellant referred to paragraphs
-*-
31(a) and 31(b) of the petition reproduced thus: C
-*-
“31(a) Your petitioner avers that the ballot papers in INEC’s possession were mixed with multiple thumbprint ballot papers. The petitioner will before or at trial move this honourable Tribunal for an order for forensic analysis to be conducted on the ballot papers to ascertain multiple thumbprinting (valid and D invalid votes.)
-*-
31(b) Your petitioner also avers that any unit results Forms EC8A, EC8B, EC8C and EC8D in possession of INEC were written by few handwriters and not by the designated Presiding
-*-
Officers, ward Returning Officers and the Returning Officers E
-*-
at the Local Governments in all the polling units, wards collation
-*-
and Local Government Collation Centre. The petitioner will before or at the trial move This honourable Tribunal for an order of forensic analysis to be conducted on the result forms.”
-*-
He stated that the appellant in his witness statement filed along with the petition contained no evidence in support of paragraphs 31(a) and F
-*-
31(b) of the petition, and equally PW1 and PW2 led no evidence in support of paragraphs 31(a) and 31(b) of the petition.
-*-
He went further that the Tribunal at page 9 of its judgment copied on page 667 of the record recognized that a pleading is abandoned where a
-*-
party offered no evidence in support of his pleadings to prove same. G
-*-
He submitted that a Tribunal or court of law would haveno business in considering such abandoned paragraphs or applying issues arising out of such abandoned paragraphs. He went further in his submission that the Tribunal was wrong in law in its view that the appellant is challenging the
-*-
authenticity of the result declared by INEC as in paragraph 31(b) of the H
-*-
petition and that he was legally bound to produce two sets of results in the
-*-
evidence. It was also submitted on behalf of the appellant that once the Tribunal had determined that paragraphs 31(b) relating to issues of
-*-
falsification had been abandoned, the only remaining issue arising from the pleadings is simply who scored the majority votes cast at the election and ought to have been declared the winner of the said election.
-*-
The learned counsel for the 1st respondent on the other hand stated that the totality of the appellant’s case before the Tribunal is that the 1st
-*-
respondent was not duly elected by a majority of lawful and or valid votes cast at the election.
-*-
She submitted that the petitioner never at any stage of the proceedings in the trial Tribunal withdraw any paragraph of the pleading and none was struck out for any reason.
-*-
It was also submitted on behalf of the 1st respondent that the burden
-*-
of disproving the accuracy of result of election rests on the petitioner. It
-*-
was further contended that despite the fact that there was apparently no evidence in support of the petitioner’s assertions, the respondents led evidence in defence and called as witnesses the electoral officers for the 17 Local Governments.
-*-
The learned counsel for the 2nd to 3238th respondents stated that the standard, quality and quantum of evidence required in any proceeding will depend on the nature of the allegations. He went further that while it is
-*-
divided into proof beyond reasonable doubt where there is allegation of crime and on balance of probability where it is only civil.
-*-
He stated that the summary of the case of the appellant is that he and not the 1st respondent won the election and ought to have been returned
-*-
as the winner of the election, he referred to paragraphs 20 and 21 of the petition and submitted that the averment in those paragraphs implies that a false return and or declaration was made by INEC officials in favour of the
-*-
1st respondent. He stated that the offence is punishable under section 130(5)
-*-
of the Electoral Act with three years imprisonment without option of fine.
-*-
The learned counsel for the 2nd to 3238th respondents urged this court not to disturb the findings of fact and or evaluation of evidence made by the Tribunal below because all issues as contained in the petition, replies and evidence led were considered. He referred to:- Woluchem v. Gudi
-*-
G (1981) 5 SC 291.
-*-
In this appeal under consideration, the petitioner proceeded to trial with the case of the parties standing on the state of their respective pleadings.
-*-
It is trite that issues for determination at the level of a trial court are joined on the pleadings as they stand at the time of trial: George v. Dominion
-*-
H Flour Mills Ltd (1963) 1 All NLR 71; First Bank of Nigeria Plc. v. Ndoma Egba (2006) All FWLR (Pt.307)1012.
-*-
For parties to succeed, they must lead evidence relevant to the issues based on the averment in their respective pleadings: Edosa v. Zaccala
-*-
(2006) FWLR (Pt. 306) 881. A
-*-
In an attempt to prove thevarious allegationscontained in the petition, the petitioner testified, called one witness and tendered exhibits P1 to P2548 and thereafter closed his case.
-*-
The learned trial Judges were entitled to look at the totality of
-*-
petitioner’s pleadings including paragraph 31(a) and (b) to determine whether B
-*-
thepetitioner had proved his case. Thepetitioner wasobliged to lead evidence
-*-
to establish all the crucial averments in the pleadings and where there is no evidence adduced in support thereof, such averment is regarded as not proved or abandoned. For example, having pleaded in paragraphs 31(a) and
-*-
(b) that all the unit result Forms EC8A, EC8C and EC8D in the possession
-*-
of INEC (upon which the 1st respondent was declared and returned as C
-*-
having polled majority of lawful valid votes at the election) were written by few officers and not by designated Presiding Officers, the petitioner was obliged to produce evidence (including a forensic analysis by a single expert) to prove this serious assertion. The petitioner was obliged to produce the
-*-
said contested result forms upon which the 1st respondent was declared D
-*-
and returned as the winner, in order to make out the case in his petition and to be entitled to the declaratory relief he claimed in paragraph 32.
-*-
The learned counsel for the appellant stated that the appellant in his witness statement filed along with the petition contained no evidence in
-*-
support of paragraphs 31(a) and (b) of the petition. Equally, PW1 and PW2 E
-*-
led no evidence in support of paragraphs 31(a) and (b) of the petition.
-*-
Consequently, the Tribunal having formulated the issues for determination based on the state of the pleadings was right to consider the case against the background of what was alleged and required to be proved and found
-*-
that same was not proved.
-*-
Another area which I will like to comment upon is in respect of the F
-*-
effect of the failure of the petitioner to call as witnesses his agents from polling booths who allegedly counted, signed and collected exhibits P1-P2558. The learned counsel for the appellant stated that the appellant supported his petition with the witness statement of 2,558 of his actual
-*-
agents who worked for him on the field on 14 April 2007. He went further G that their evidence were frontloaded and the petitioner listed the 2,558 agents and others as the witnesses he intends to call at the trial.
-*-
He submitted that the finding made by the Tribunal that failure to call the actual 2,558 agents who worked for the appellant in the field is very
-*-
fatal to the appellant’s case is perverse, unjust, contradictory and cannot H
-*-
support the earlier order made by the Tribunal streamlining the appellant’s
-*-
witnesses.
-*-
He also referred to paragraphs 41 and 50 to the 1st Schedule to the
-*-
A Electoral Act, 2006 and paragraphs 3(6), (7), (8), 4(5), (6), (7) and 5(7) of the election Tribunal and Court Practice Directions, 2007 and submitted that the abovementioned sections of the ElectoralAct and Practice Directions are provisions that exempt the Tribunal from the rigidity of the Evidence Act and practice and procedure in ordinary courts, in other words the said
-*-
sections has given the Tribunal powers to facilitate the just and speedy disposal of the petition bearing in mind the urgency of the petitions.
-*-
It was contended on behalf of the appellant that the Election Tribunal was wrong in law to have expected the appellant to call all his agents who worked for him in the field to testify and tender exhibits P1 to P2558.
-*-
The learned counsel for the 1strespondent on the other hand referred
-*-
to paragraphs 7, 18, 20, and 24 of the petition and paragraphs 8, 17, 18, 21
-*-
and 24(a) and (b) of the 1st respondent’s reply.
-*-
It was stated that by the pleadings, the 1st respondent joined issues with the petitioner inter alia on the following points:-
-*-
“1. That his agents were not at the polling units and did not collect
-*-
any result Forms EC8A’s from the Presiding Officers.
-*-
2. That the “carbon copies” of the result Forms EC8A’s pleaded by the petitioner which is at variance with INEC’s official result forms are spurious, unauthentic and were not actually issued by INEC.
-*-
3. That the votes allegedly scored by the candidates in the said “Carbon copies” and summed up in ScheduleA to the petition
-*-
are false imaginary and concocted.
-*-
4. That the alleged “carbon copies” of Form EC8A’s pleaded by the petitioner were not made by duly appointed Presiding Officers in charge of the polling booths on the days of the
-*-
election.
-*-
On their part, INEC and other respondents also joined issues with the petitioner in respect of the petitioner’s “carbon copies of Forms EC8A and stated that the scores allegedly summed from them reflected in schedule A to thepetition wereauthored, by the petitioner and not by the duly appointed
-*-
Presiding Officers on election duty.
-*-
A careful perusal of the evidence of petitioner who testified as PW2 and the only witness called as PW1 showed that neither the petitioner nor his witness deposed that they were present at any polling booth on the day of election but they gave evidence of what happened at all the polling
-*-
units in the State.
-*-
The PW1 did not give evidence that he saw or observed any of the
-*-
petitioner’s agents countersigned the result form or receive the same from the Presiding Officer in the polling booths. There was also no evidence
-*-
from the witness that he saw or observed any of the Presiding Officers A
-*-
who allegedly wrote, signed and stamped exhibits P1 to P2585.
-*-
In my humble view, the best evidence of what transpired at the pollingbooths with regards to the scoresof thecandidates which the petitioner sought to prove by exhibits P1 to P2548 would have been evidence of
-*-
Presiding Officers who counted the votes, wrote the scores in Forms EC8A’s B
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signed and stamped them and issued them to agents or the evidence of the
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said agents who were present at the polling booths when the votes were counted, saw them recorded on theForms EC8A’s, by thePresiding Officers, saw the Presiding Officers stamp and signed them, countersigned the result
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forms themselves and collected copies thereof from the Presiding Officers.
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In this case under consideration, none of the people who allegedly C
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made exhibit P1 to P2558 was called to tender same and be cross-examined on the authenticity of the contents of the documents.
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In Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941)1, it was held by the Supreme Court per Akintan JSC that:-
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“The position of the law regarding the type of evidence which D
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must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come directly from the officers who were in the field where the votes were counted and or collated. Consequently, evidence
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from persons who received the figures or scores from the E
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officers who were present at the counting or collation of the
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votes is in admissible because such evidence is hearsay.”
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The PW1 and PW2 i.e. the petitioner clearly fall within the category of persons whose evidence cannot be admissible on this issue.
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Consequently, the trial Judges were therefore right when they held that evidence of PW1 in relation to exhibits P1 to P2548 is hearsay. F
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The petitioner alleged that by virtue of the provisions of the Election Petition Tribunal and Court Practice Direction, 2007 he was unduly constrained in the number of witnesses he could call and that the Tribunal under the said Practice Direction limited the number of his witnesses.
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It is my view that, the petitioner was fully conscious of the nature G of his allegation in the petition and the nature of proof required of him by law. He voluntarily opted to call 20 witnesses out of 2,280 witnesses allegedly
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on oath. The Tribunal obliged him and madestreamlining order according to petitioner’s choice. It is noteworthy that the petitioner did not even exhaust
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said number of witnesses at the trial. He announced the closure of his case H
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after the evidence of two witnesses. The petitioner had the option of calling
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more polling agents and Presiding Officers but he did not. Therefore, having freely chosen to shoot himself in the foot, he cannot now blame the Tribunal.
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All FWLR Agballah v. Chime (Jauro JCA) 1559
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It is for the above reasons, and fuller reasons in the lead judgment that I also find that this appeal lacks merit and it is accordingly dismissed. I abide by the consequential orders including the order as to costs. JAURO JCA: I have read in draft the lead judgment of my learned brother, Ibrahim Mohammed Musa Saulawa JCA, just delivered. The judgment has
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exhaustively and meticulously dealt with all issues raised and canvassed in this appeal. I am in agreement with all the reasons and conclusions reached therein, and there seems nothing much to add.
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The appellant herein is not disputing that elections were conducted, rather his case is that results were not properly, collated. Based on his own results, appellant contends that he won the election by a majority of lawful votes. The appellant further contends that the unit results in possession of INEC were written by few hands and not by designated Presiding Officers. The appellant however failed to tender two sets of results, in order to establish
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the genuine and the fake results, despite having collected certified true copies from INEC, see page 296 paragraph 7 of the records. Furthermore, the authenticity of the results tendered by the appellant was successfully
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challenged by witnesses called by INEC. The appellant therefore has failed to establish that he won the election by majority of lawful votes.
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For the above and the fuller reasons given in the lead judgment which I hereby adopt as mine, I also dismiss the appeal as devoid of any
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merit and abide by the consequential order as to costs.
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Appeal dismissed
Other Citations:(2009) 1 NWLR (Pt. 1122) 373
