Mr. Sullivan I. Chime V. Rev. Dr. Oscar Egwuonwu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal against the judgment of the Governorship/Legislative Houses Election Petition Tribunal sitting at Enugu in the Enugu State of Nigeria.

The appellant Barr. Sullivan I. Chime was the 1st Respondent in Petitions No. NAGLIEPT/EN/GOV/35/2007 and NAGL/EPT/EN/GOV/36/2007 and filed by Oscar Egwuonwu the Governorship candidate of Democratic Peoples Party and Peoples Democratic Party respectively. At the trial, the two petitions were consolidated and heard as one.

The facts of this appeal as can be gathered from the totality of the record before the court are that the Petitioner in Petition No.NAGL/EPT/EN/GOV/35/2007 is Rev. Dr. Oscar Egwuonwu while the Petitioner in NAGL/EPT/EN/GOV/36/2007 is the Democratic Peoples Party (DPP). At the close of the gubernatorial elections in Enugu State, the appellant who scored 811,798 votes as against the 1st Respondent’s 5,814 votes was declared the winner of the election while the appellant contested the election under the platform of the Peoples Democratic Party (PDP). The 1st Respondent contested under the platform of Democratic Peoples Party (DPP).

Being dissatisfied with the return of the appellant by the Independent National Electoral Commission, both Rev. Dr. Oscar Egwuonwu and his party filed two separate petitions claiming the following reliefs –

(i) “That it may be determined that the 1st respondent was not duly elected or returned and the election be declared a nullity.

(ii) That a fresh Governorship election be conducted in Enugu State”.

The grounds for the petition are that:-

(a) “The election did not hold within the prescribed period of 8am to 3pm.

(b) The 1st respondent was not elected by a majority of lawful votes cast at the elections.

(c) The elections were invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act 2006.

(d) Falsification and inflation of figures allegedly scored by the 1st respondent.

(e) Gross irregularities in the polling booths and that the results were not announced thereat. There was no collation of the result in the Wards as materials including the result sheets were not delivered to the polling centres by the 2nd and 3rd respondents.

(f) There was no voting at all in-most of the polling booths.”

The appellant and the 2nd to 3180th Respondents filed separate replies and denied all the allegations contained in the petition. According to them, the appellant polled 811,798 and not 811,756 votes as claimed by the petitioners. The respondents to the petition also averred in their replies that the gubernatorial elections in Enugu State were free and fair and conducted in substantial compliance with the provisions of the Electoral Act 2006. Both petitions are similar in all respects consequently the two petitions were consolidated.

The petitioners in the consolidated petitions called 17 witnesses, the appellant called 13 witnesses RW1 – RW13 while the INEC respondents called the 17 electoral officers for the 17 Local Governments in Enugu State as witnesses.

It is agreed between the parties that elections were conducted in 13 of the 17 Local Governments on 14/4/07 while elections were conducted in Enugu South, Udi, Nsukka and Isi-Uzo Local Governments on 28th of April 2007.

After the adoption of written addresses by counsel on all sides the trial Tribunal in its judgment on the 18th day of January 2008 declared the return of the appellant as the Governor of Enugu State a nullity and ordered for fresh elections.

Dissatisfied with the judgment the appellant appealed against the judgment and filed 13 grounds of appeal on the 4th day of February 2008. In accordance with the Practice of this Court, briefs-of arguments were filed and exchanged. At the hearing of the appeal on 2nd day of June 2008, learned counsel for the appellant adopted his brief of argument dated and filed on 25/3/08 he also adopted his reply brief dated and filed on 27/5/08 learned senior counsel for the appellant relied on the two briefs and urged the court to allow the appeal.

Learned counsel for the 1st respondent adopted his brief of argument dated the 28/4/08 and deemed filed on 22/5/08 and urged the court to dismiss the appeal and confirm the decision of the Tribunal and order another election.

In the appellant’s brief of argument, the following issues were identified as calling for determination.

“1. Were the learned trial Judges right in placing the primary onus on the appellant to prove that he was duly elected in accordance with Section 179(2) of the 1999 Constitution of the Federal Republic of Nigeria?

2. Were the learned trial Judges right when relying on the Practice Direction 2007 they held that this case is exempt from the requirements of proof as established in the cases of Ayogu V. Nnamani (2006) 6 NWLR (Pt.981) at 160 and Nnaji V. Agbo (2006) EPR 67?
3. Were the learned trial Judges right in holding that this Case does not fall within the test of substantial compliance as set down in the case of Buhari V. Obasanjo (2005) All FWLR p.1.
4. Were the learned trial Judges right in their application of the Practice Direction 2007 to reject the documents tendered by the appellant in support of his case?
5. Were the learned trial Judges right when they held that the evidence of RW13 contradicted the evidence of the appellant’s witnesses?
6. Did the learned trial Judges properly evaluated the Evidence of the appellant’s witnesses in their judgment?
7. Were the learned trial Judges right in their reliance on Exhibit P2 to find that a majority of voters in the State did not vote?
8. Were the learned trial Judges right in taking judicial notice of the provisions of INEC Guidelines and regulations which were not tendered before the Tribunal?
9. From the pleading and evidence before the Tribunal, were the learned trial Judges right in holding that the Petitioners have proved non-compliance with the provisions of the Electoral Act.
10. Were the learned trial Judges right when they held that the petitioners’ allegations were not criminal in nature and thereby applied the lower standard of proof required in civil cases.
11. Were the learned trial Judges right extending time for the Petitioners to file their written address and admitted same for use without affording the appellant the opportunity to reacting to the address by way of a reply on points of law.
12. Did the petitioners/respondents adduce sufficient evidence in proof of their case in order to entitle them to judgment?
13. Did the Petitioners/Respondents adduce sufficient evidence in proof of their case in order to entitle them to judgment?”

On his part learned counsel for the respondent formulated the following issues for determination which read thus:-

“1. Whether Section 179(2) of the Constitution of Nigeria 1999 which provides “a candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where there being two or more candidates (a) he has the highest number of votes cast at the election and (b) he has not less than one quarter of all the votes cast in each of at least two thirds of all the Local Governments in the State” is mandatory or permissive.

2. Whether the 2nd and 3rd respondents carried out their duties in substantial compliance with the Constitution of the Federal Republic of Nigeria 1999 and or Electoral Act 2006.
3. Whether the pleadings of the parties and evidence adduced before the Election Tribunal are in support of the judgment.
4. Whether there was denial of fair hearing against the Appellants.

I have considered the issues as formulated by the appellant and I am of the view the issues would adequately dispose of the appeal. I however noticed that some of the issues as formulated overlaps or are interrelated accordingly some of the issues would be treated jointly in the consideration of the appeal.

ISSUE NO.1

Were the learned trial Judges rights in placing the primary onus of proof on the appellant to prove that he was duly elected in accordance with Section 179(2) of the 1999 Constitution of the Federal Republic of Nigeria?

Learned senior counsel for the appellant submits that this issue complains essentially of the trial Tribunal’s error in placing the onus of proving the fundamental question in the petition on the appellant who was a respondent in the case. Learned counsel referred to the Tribunal’s judgment at page 437 vol. 3 of the record, the learned trial Judges of the Tribunal held as follows:-

“The learned counsel for the petitioners referred to the provision of Section 179(2) of the Constitution of the Federal Republic of Nigeria, 1999. It provides thus:

‘179(2) – A candidate for an election to the office of a Governor of a State shall be deemed to have been elected where there being two or more candidates –

(a) he has the highest number of votes cast at the election and

(b) he has not less than one quarter of all the votes cast in each of at least two-thirds of all the Local Governments in the State.’

By this provision, a respondent defending an election petition as Governor (elected) must be ready to demonstrate by his pleadings and evidence that he has fulfilled the constitutional requirements where it is made an issue. Such cannot be left to presumption”.

Learned senior counsel for the appellant argues that by the foregoing statement, the trial Tribunal clearly holds the position that (i) Section 179(2) of the Constitution place the primary onus on any person elected as a governor to prove that he was duly elected in accordance with that Section once his due election is questioned in an election petition; (ii) Section 179(2) of the Constitution removes any presumption of regularity/correctness of a result by which a candidate is elected/returned as a governor.

It is submitted that this does not represent the position of the law with regard to the person on whom the burden of proof lies in circumstances as in this case. That in the normal legal context, the burden of proof or onus of proof is said to lie on a person who, in the circumstances of the pleadings, has the responsibility to advance evidence in order to prove facts of the case to the satisfaction of the court as contained in his pleadings. The ultimate decision of a court in every trial depends on whether or not the party on whom this responsibility lies has discharged that responsibility to the satisfaction of the trial court. His entitlement to judgment in the case depends to a large degree, on his ability to discharge this onus of proof laid on him by law. That by a combined reading of Sections 135, 136 and 137 of the Evidence Act, the primary and general burden of proof i.e. ultimate responsibility to adduce evidence to establish the case as disclosed from the pleadings lies on the person who would loss if no evidence is led at all in the trial. Learned senior counsel contends that this principle applies evenly to all cases including election petitions except where the burden of establishing or proving certain specific facts has been placed on any particular party by law – reference made to Awuse V. Odili (2005) All FWLR (Pt.261)248.

Learned senior counsel for the appellant referred to the consolidated petitions and the pleadings contained therein which are identical and contained the same reliefs. He also referred to the 1st respondent’s Reply to the petitions which contained his pleadings and contends that it is on the state of pleadings as between the petitioners and the 1st(now appellant) in the consolidated petitions that the case proceeded to trial. It is the submission of the appellant that as the pleadings stood the petitioners (now respondents) had the primary onus of producing evidence as to the satisfaction of the tribunal to prove their alleged corrupt practices, non-compliance with the provisions of the Electoral Act 2006, falsification and inflation of figures.

Irregularities and other malpractice which they assert had undermined the election to the greatest disadvantage of the petitioners. Reference made to Awuse V. Odili (supra) at page 313.

It is further submitted that under Section 150(1) of the Evidence Act there is the presumption of regularity or correctness which stands in favour of official acts. That the Independent National Electoral Commission (INEC) is a statutory body charged by law with the responsibility of conducting election in the entire country. All the parties to this petition agree that the governorship election of 14th & 28th April 2007 were conducted by INEC in pursuance of its official duty under the Constitution and the Electoral Act. The parties also agree that pursuant to the said elections INEC declared results by which the appellant herein was returned as the Governor of Enugu State. That on the authority of the Evidence Act and a long line of decided cases, all which the learned trial Judges were bound to follow, when INEC declares a result, there is a presumption that the said result is correct. The -burden is therefore on the petitioner who denies the correctness, authenticity or validity of the return of the appellant to produce evidence in rebuttal of the correctness in favour of the return – reference made to Buhari & Anor V. Chief Olusegun A. Obasanjo & 264 Ors (2005) All FWLR (Pt.273)1 at 124; Omoboriowo V. Ajasin (1984)1 SCNLR 108; Nwobodo V. Onoh (1984)1 SCNLR 1. Learned senior counsel for the appellant submits that since the trial Tribunal has fundamentally erred in determining who had the primary or general onus of proof in the case clearly affected the final decision of the trial Tribunal and this Court is respectfully urged to set the same aside as being perverse.

In response to the submissions of the appellant in Issue No.1 for determination learned counsel for the respondent submitted that the petitioner gave evidence and pleaded that the constitution of Federal Republic of Nigeria was breached. That the respondent/appellant did not give any credible and admissible evidence to show that they satisfied the provisions of Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999. That in Buhari & Anor V. Chief Olusegun A. Obasanjo & 264 Ors (2005)124, the Supreme Court stated that when the Electoral Commission declares a result, there is a presumption that the result is correct. But the presumption is not watertight. It is rebutable and the onus is on the petitioner to rebut the presumption. That the petitioner offered clear and active proof that the result is incorrect and not authentic and that all the witnesses to the appellant did not rebut the evidence that there was no polling booth results shown by the appellant; that there was no number of votes collated in any collation centre and the result announced did not show how the 1st appellant scored the highest number of votes and/or that the 1st appellant scored any number of votes not less than once quarter of all the votes cast in each of at least two thirds of all the Local Governments in the State.

Learned counsel for the respondent submitted that there are 17 Local Governments in Enugu State, that there is no evidence of votes -scored in any of the 17 Local Governments Areas or at all, that the Tribunal cannot presume regularity in the air. Learned counsel for the appellant argues that the Tribunal saw that the witnesses for the appellant were not reliable and were not to be believed. The Judges made the findings. They saw the witnesses, assessed them and came to the findings. Counsel contends that the court of Appeal is being asked to perform a task outside its jurisdiction.

It is submitted for the respondent that the consideration of the appellant then respondent case of holding or not holding an election arose immediately the petitioner (now respondent) made out a case that there was no election in accordance with the Constitution of the Federal Republic of Nigeria 1999 and/or the Electoral Act 2006. That the petitioner has made out a case in the petition and the appellant admitted in their Replies that there were no scores shown in the booths and collation centres. That the Tribunal could not find facts on which the presumption could be supported.

Learned counsel for the Respondent referred to the judgment of the Tribunal at page 437 of the printed record and contends that it is false for the appellant to say that the Constitution was not made – an issue. He submitted that issues were joined on the fundamental provisions of the Constitution of the Federal Republic of Nigeria 1999 i.e. Section 179(2). It is the contention of the learned counsel to the respondent once issues are joined on the provision of the Constitution it is the duty of the 2nd & 3rd appellants to show that they acted within the provision of the Constitution, that the appellant has a duty to show to the court that the provisions of the Constitution were not breached – reference made to A.G Ondo State V. A.G. Federation & Ors (2002) 9 NWLR (Pt.772) 222; Rabiu V. The State (1982)2 NCLR 293; Aque Ltd V. Ondo State Sports Council (1980)4 NWLR (Pt.117)517; Ishola V. Ajiboye (1994)6 NWLR (Pt.352)5-6; Director SSS V. Agbakoba (1999) 3 NWLR (Pt.595) 314; Ekeochu V. Civil Service Commission Imo State (1981)1 NCLR 14; Kalu V. Odili (1992) 5 NWLR (Pt.240)130. That the Tribunal regretted that the appellant denied it of all documentary evidence relating to his election even the certificate of return issued to him under Section 76(1) of the Electoral Act 2006.

Learned counsel for the respondent argues that the petitioner/respondent asserted that there was no election for the Governorship post in Enugu State and by evidence proved that the 2nd and 3rd respondents/appellants failed to act within the provisions of the Constitution. That the 1st, 2nd and 3rd appellants failed to show the scores of any candidate in the booths, Wards, Local Government Areas of the State to entitle the appellant to be declared winner.

That the Tribunal cannot presume after the pleadings and evidence of the respondent and his witnesses that the Constitutional provision were complied with. It must be proved that the election was not in breach of the provisions of the Constitution of the Federal Republic of Nigeria, 1999. Learned counsel for the respondent submits that the appeal fails in this issue and should be dismissed.

Issue No.1 is basically on whether by the judgment of the Tribunal as contained on page 437 of the printed record, the Tribunal was right in placing the primary onus of proof on the appellant to prove that he was duly elected in accordance with Section 179(2) of the 1999 Constitution of the Federal Republic of Nigeria.

The relevant portion of the judgment at page 437 of the printed record read thus:-

“The learned counsel for the petitioner referred to the provision of Section 179(2) of the Constitution of the Federal Republic of Nigeria, 1999. It provides thus:-

‘179(2) – A candidate for an election to the office of the Governor of a State shall be deemed to have been duly elected where there being two or more candidates –

(a) he has the highest number of votes cast at the election, and

(b) he has not less than one quarter of all the votes cast in each of at least two thirds of all the Local Governments in the State. ‘

By this provision, a respondent defending an election petition as Governor (elected) must be ready to demonstrate by his pleadings and evidence that he has fulfilled the Constitutional requirements, where it is made an issue. Such cannot be left to presumption”.

A careful study of this portion of the judgment will reveal clearly that the learned Judges of the trial Tribunal are of the view that –

(a) Section 179(2) of the Constitution places the primary onus on any person elected as a Governor to prove that he was duly elected in accordance with that section once his due election is questioned in an election petition.

(b) Section 179(2) of the Constitution removes any Presumption of regularity/correctness of a result by which a candidate is elected/returned as a governor.

The above views as held by the learned Tribunal do not represent the position of the law with regard to the person on whom the burden of proof lies in circumstances as in this case.

Generally in law, the burden of proof or onus of proof is said to lie on a person who in the circumstances of the pleadings has the responsibility to advance evidence in order top rove facts of the case to the satisfaction of the court as contained in his pleadings.

The ultimate decision of a court in every trial depends on whether or not the party on whom this responsibility lies has discharged that responsibility to the satisfaction of the trial court. His entitlement to judgment in the case depends, to a large degree on his ability to discharge this onus of proof laid on him by law. The law that regulates trials in our adversarial system of adjudication is the Evidence Act. Sections 135 to 137 of the Evidence Act provide as follows:-

S.135 (1) – Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that these facts exist?

(2) When a person is bound to prove the existence of facts it is said that the burden of proof lies on that person.

S.136 – The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

S.137(1) – In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produce on either side, regard being had to any presumption that may arise on the pleadings.”

By a combine reading of the above provisions, the primary and general burden of proof, i.e. the ultimate responsibility to adduce evidence to establish the case as disclosed from the pleadings, lies on that person who will lose if no evidence is led at all in the trial.

This principle applies evenly to all cases including election petitions except where the burden of establishing or proving certain specific facts has been placed on any particular party by law. The application of this principle of law to election petitions has been re-confirmed by this Court in the case of Awuse V. Odili (2005) All FWLR (Pt.261) 248 at 316 when it stated-

“It is an elementary principle of law that the burden is on him who asserts to adduce evidence in proof of that assertion. In the instant case, the appellant as the petitioner at the Tribunal had the onerous duty of proving his petition and such reliance could not be made on the weakness of the case of the defence xxx in other words, the petitioner was duly bound to succeed on the strength of his own case and not on the weakness of the defence.”

In the instant appeal the 1st respondent presented a petition of eleven paragraphs before the trial Tribunal in which he alleged that among others that there was no voting at all in most of the polling booths, the election did not hold within the prescribed period of 8am to 3pm or 10am to 5pm, corrupt practices, non-compliance with the provisions of the Electoral Act, 20076, falsification and inflation of figures, irregularities and other malpractice which he assert-had undermine the election to the greatest disadvantage of the petitioner.

The appellant filed thirteen paragraphs Reply to the Respondent’s petition in which he denied all the allegations contained in the petition.

On the state of the pleadings as contained in the petition and the appellant’s Reply thereto the case proceeded to trial. As the pleadings stood, the petitioner has the primary onus of producing evidence to the satisfaction of the Tribunal to prove the allegations contained in the petition. The law as it stands today is that onus of proof is on he who asserts and Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999 does not shift this burden from/the petitioner to the respondent in election matters.

Furthermore there are no statutory provisions or judicial authorities that shift the onus of proof in Election Petition cases from the petitioner to the respondent.

Beside, in election there is presumption of regularity or correctness which stands in favour of official acts under Section 150(1) of the Evidence Act. The Independent National Electoral Commission (INEC) is a statutory body charged by law with the responsibility of conducting elections in the entire country. All the parties to this petition agree that the Governorship election of 14th and 28th April 2007 were conducted by INEC in pursuance of its official duty under the Constitution and the Electoral Act. The parties also agree that pursuant to the said elections INEC declared the results by which the appellant herein was returned as the Governor elect of Enugu State.

On the authority of the Evidence Act and a long line of decided cases, when INEC declares a result, there is a presumption that the said result is correct. The burden is therefore on the petitioner who denies the correctness, authenticity or validity of the return of the appellant to produce evidence in rebuttal of this presumption of correctness in favour of the return.

The Supreme Court in Buhari & Anor. V. Chief Olusegun A. Obasanjo & 264 Ors (2005) All FWLR (Pt.273)1 at 124 stated thus:-

“When the Electoral Commission declares a result, there is a presumption that the result is correct. But this presumption is not water tight, it is rebuttable and the onus is one the petitioner to prove and rebut the presumption. xxx Once the Electoral Commission announces the result of an election it is presumed correct and authentic and the petitioner who alleges the opposite must offer clear and positive proof that the result is incorrect and not authentic. If the allegation is fraud it must be proved beyond reasonable doubt because fraud is a crime. If it is violence, the violence, its location, the effect on the election, its spread whereby it substantially affects the result must clearly be pleaded and given in evidence.”

See also the cases of Omoboriowo V. Ajasin (1984)1 SCNLR 108; Nwobodo V. Onoh (1984)1 SCNLR 1.

In its judgment the trial Tribunal after quoting the provisions of Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999 states thus:-

“By this provision, a respondent defending an election petition as Governor (elected) must be ready to demonstrate by his pleadings and evidence that he has fulfilled the Constitutional requirements where it is made an issue. Such cannot be left to presumption.”

Further placing the burden of proof on the petitioner now appellant the learned Judges of the trial Tribunal at page 437 of the printed record states thus:-

“Furthermore, the provision makes it obligatory that the votes of all the candidates at the election must be stated to know all the votes cast at the election. So also the vote scored in the Local Government Areas of the State. It is pertinent to State that the 1st respondent has denied the Tribunal of all documentary evidence relating to his election even the Certificate of Return issued to him under S.76 (1) of the Electoral Act.”

It is crystal clear that the provisions of Section 179(2) of the Constitution which the learned trial Judges were considering at that point in their judgment does not either directly or by any visible or reasonable implication, obviate the existing presumptions of regularity and correctness of a result declared by INEC nor does it place any onus on the respondent/appellant whose election and return is being challenged.

Having thus wrongly placed the onus of proof on the 1st respondent now appellant, the learned trial Judges wrongly demanded production of evidence which production they again wrongly held that the respondents have failed to do.’

This fundamental error of the trial Tribunal in determining who had the primary or general onus of proof in an election petition and this appeal placing it on the petitioner now appellant has clearly affected the final decision of the trial Tribunal and same is perverse. Accordingly Issue NO.1 is determined in favour of the appellant and against the respondent.

Learned senior counsel for the appellant argued Issue NO.2 and 3 together. The Issues are –

ISSUE NO.2

Were the learned trial Judges right when relying on the Practice Directions 2007, they held that  this case is exempt from the requirements of proof as established in the cases of Ayogu V. Nnamani (2006)6 NWLR (Pt.981)160 and Nnaji V. Agbo (2006)2 EPR 67?

ISSUE NO.3

Were the learned trial Judges rights in holding that this case does not fall within the test of substantial compliance as set down in the case of Buhari V. Obasanjo (2005) All FWLR?

In arguing Issues 2 and 3 learned counsel for appellant  referred to paragraph 13 of the petition and paragraph 10 which contained the grounds relied upon by the petition. The petitioner in paragraph 13 of the petition prayed as follows:-

“1. That it may be determined that the 1st respondent was not duly elected or returned and the election be declared a nullity.

2. That a fresh Governorship election be conducted in Enugu State.”

The grounds relied upon for the petitions are contained 10 paragraph 10 of the petition as follows:-

“1. The election did not hold within the prescribed period of 8.00am to 3.00pm or 10.00am to 5.00pm.

2. The 1st respondent was not elected by a majority of lawful votes cast at the elections.
3. The elections were invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act 2006.
4. Falsification and inflation of figures allegedly scored by the 1st respondent.
5. Gross irregularity in the polling booths and the results were not announced thereat. There was no collation of results in the ward as the materials including result sheets were not delivered to the polling centres by the 2nd and 3rd respondents.”

The respondent in vehement opposition to the above averments stated thus in paragraph 3 of his Reply.

“3. The respondent states that his return as the Governor elect of Enugu State was not based on a purported election as alleged by the petitioner, rather same was the bona fide outcome of a valid election conducted substantially in accordance with the provisions of the electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999. The respondent pleads and shall at trial of the petition rely on all electoral result Forms (EC 8A, EC 8B, EC 88C and EC 8D) and other relevant INEC documents that were used for the conduct and for the purposes of the election as well as for the collation and declaration of the result of the election”

Furthermore paragraph 9 of the 1st respondent’s reply runs thus:-

” the respondent states that the materials for the elections were delivered in good time for the gubernatorial elections of the 14th and 28th April 2007 and the elections duly held and all the voters who turned out to vote voted, within and or up till the time allowed and or extended therefore by the 2nd respondent…”

The Tribunal in its judgment at pages 437, vol.3 of the record stated thus:-

“By this provision, a respondent defending an election as Governor elect must be ready to demonstrate by his pleadings and evidence that he has fulfilled the constitutional requirement where it is made an issue such cannot be left to presumption”

The Tribunal continued in their judgment –

“Considering the above provisions and the authorities, it is our humble view that the Petitioners have adduced the initial evidential burden on them. And having had regard to presumption above, the burden is on the Respondents to rebut the petitioner’s evidence.”

Learned counsel for the appellant submits that the Tribunal adopted the above position even though the general principle of law is that a petitioner who alleges that the appellant was not elected by majority of lawful votes has the onus to prove his case by producing evidence in rebuttal of the presumption. That the Tribunal discarded this hallowed principle and created a new order/principle in these words “To our mind the old order has given way to the new one ” Learned counsel for the appellant contends that with the above position taken by the Tribunal in respect of the petitioner’s allegation that voting did not take place in all or most part of the polling booths, the burden of proving that the election i.e. voting took place was in effect placed on the respondents to the petition. The Tribunal’s aforesaid inclination was informed by what they called “… The new order …” which they felt was introduced by the Practice Directions. This new order was then applied by the Tribunal in determining where the onus of proof lay in respect of the various issues arising therein. Learned counsel to the appellant referred to  the case of Ayogu V. Nnamani (2006) 6 NWLR (Pt.981) 160 wherein this Court stated as a matter of mandatoriness that a witness must be called from each polling booth in order to show that he could not vote and/or tender voters’ register was not applied. Rather the Tribunal held that as a matter of novelty and in frontal conflict with the decisions of this Court, the Supreme Court and substantive Acts, that the principles of law as enunciated by this Court in Ayogu V. Nnamani and Nnaji V. Agbo (supra).

“In the face of the Practice Direction …. No longer holds sway. To our mind the old order has given way to the new one.”

It is submitted for the appellant that our adjectival law of evidence governs the burden of proof in all cases. That there is nothing in the said Practice Directions that has automatically changed the position of the law as enshrined in the Evidence Act and espoused in a long litany of cases. That this is so because the provisions of Sections 135 to 136 of the Evidence Act are to the effect that he who asserts must proof. Learned senior counsel for the appellant contends that there is nothing in the Practice Direction displacing the principle of law that he who asserts must proof and the proposition of the law on whom the burden of proving that voting did not take place and how such burden can be discharge has been stated and repeatedly restated in the cases of Ayaogu V. Nnamani (2006)8 NWLR (Pt.981)160 at 187; Awuse V. Odili (2005) 16 NWLR (Pt.952) 416; Nnaji V. Agbo (2006) 2 EPR 867; Remi V. Sunday (1999) 8 NWLR (Pt.613)105; Onoyon V. Egari (1999) 5 NWLR (Pt.603) 416 at p.425.

Further learned senior counsel for the appellant argues that the legal burden of proving that elections were not conducted which itself is a form of malpractice rest on the petitioner. It is submitted that the learned trial Judges of the trial Tribunal relied on the provisions of the Practice Directions to dispense with the need for enquire the petitioners to prove their case in the manner laid down in Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra); Onoyon V. Egari (supra). Learned senior counsel submits that the Practice Directions cannot displace the provisions of a statute and decisions – reference made to University of Lagos & Anor V. M.I. Aigono (1984) 11 SC 152 at 191.

On Issue 3 that is was the learned trial Judges right in holding that this case does not fall within the test of substantial compliance as set down in the case of Buhari V. Obasanjo (2005) All FWLR at 91. Learned senior counsel for the appellant submits that the learned trial Judges have also for reasons stated in their judgment held that the principle as enunciated in Buhari V. Obasanjo (supra) as regards proof of the substantial effect of alleged irregularities or non-compliance with Electoral Act on the final result of an election was not applicable to this case they therefore declined to be guided by the said case and the principles stated therein. Learned senior counsel contends that the substantiality principle had always had a secured place in all our post independence Electoral Laws because there is no perfect or impeccable election. This principle is contained in Section 146 of the Electoral Act 2006.

Further, learned senior counsel for the appellant submits that by the petitioners own showing as per paragraphs 8 and 9 of this petition, INEC announced the votes polled and declared the appellant duly elected. There is a presumption of correctness of the result of an election as declared by the electoral commission.

That as a matter of fact, the Tribunal’s conclusion at pages 438 of the record confirmed that the election took place when it states thus:-

“…. we have no doubts in our minds that majority of the electorates in Enugu State were denied the right to choose who their Governor should he”

Learned senior counsel argues that from the above pronouncement by the Tribunal establish that there was an election albeit with some imperfections which determination ought to have activated the proper application of the substantiality test as in Buhari V. Obasanjo (supra) in the determination of the petition by the Tribunal – reference made to Biyu V. Ibrahim (2006) 8 NWLR (Pt.981)1; Buhari V. INEC & Ors (unreported) Suit No. CA/A/EP/1/07 delivered on 26th February 2008 and Atiku V. Yar’adua (unreported) Suit No. CA/A/EP/3/07 delivered on 26th February 2008. Learned counsel urged us to resolve Issues 2 & 3 in favour of the appellant and set a side the final decision of the court below.

In their response to the submission of the appellant in Issues 2 & 3 the learned counsel to the respondents submits issues 2 & 3 relate to Practice Directions, both the appellant and respondents are bound by Practice Directions 2007 made by the President of Court of Appeal who has the statutory authority. Those by the Practice Direction 2007 paragraph 2 the respondent’s Reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath. That the appellants in their reply failed or refuse to file copies of documentary evidence they would rely on at the hearing thereby were in breach of the provisions of Paragraph 2 of the Practice Directions 2007. Counsel for the respondent argues that parties must abide by the rules of pleading and evidence and that the Tribunal is a special court and has its special rules for prompt dispensation of justice and that authorities being relied on by the appellant are in applicable in this petition as the facts are not the same. Further counsel for the respondents submits that the appellant did not plead the documents as required by law which they call electoral result (Form EC 8A, EC 8B, EC 8C, EC 8D and EC 8E) that they did not front load any of them in their replies nor did they give evidence even under cross-examination by the petitioner/respondent’s counsel of the votes cast at the election in the polling booth and any of the collation centres and the score.

The documents did not exist as at the time of the replies were filed by the appellant. The only reasonable conclusion is that Form EC8A, EC 8B, EC 8C, EC 8D and EC 8E were not available at the time the appellant filed their respective replies to the petition. That in both the cases of Omoboriowo V. Ajasin (1984)1 SCLR 108 and Nwobodo V. Onoh (1984)1 SCNLR both the petitioners and the respondent in the case showed the votes scored in the primary voting booths. That in the case of Nwobodo he was unable to prove that the results were forged beyond reasonable doubt.

Learned counsel argued that it cannot be left to presumption that the appellant had the highest lawful votes cast at the election or that he scored 14 of the votes in 2/3 of the 17 Local Government of Enugu State since there was no basis for the presumption. Learned counsel contends that the petitioner/respondent’s case is that there was no election on the 14th and 28th April Gubernatorial election in Enugu State in accordance with the provisions of the constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2006 that Exhibit P1, P2, P3 1-2 shows that the election materials could not have arrive the voting booth stations before 5.30pm. That the 2nd & 3rd respondents/appellants woefully failed to carry out their duties and function in accordance with the provision of the Constitution and Electoral Act 2006.

On the applicability of Buhari V. Obasanjo’s case (supra) learned counsel for the respondent submits that there was no deduction of votes and percentage of votes as set out in Buhari’s case which the non-compliance of the appellants with the provision of the Electoral. Act 2006 has been shown clearly by evidence of the witnesses of the petitioner/respondents. That the non compliance affected the purported result of the election.

Issue NO.2 under consideration is on whether the learned trial Judges were right when relying on the Practice Directions 2007 they held that this case is exempt from the requirements of proof as established in the cases of Ayogu V. Nnamani (2006)6 NWLR (Pt.981)160 & Nnaji V. Agbo (2006)2 EPR.

At page 436 of the printed record the learned trial Tribunal states thus:-

“By way of emphasis, we wish to state that in view of the provisions of the Practice Directions on streamlining of witnesses the case of Ayogu vs. Nnamani (2006)8 NWLR (Pt.981) 160 at 194 and Nnaji vs Agbo (2006)2 EPR 867 at 890-891 where it was stated a petitioner should call witness from each polling booth that they could not vote and/or tender voters’ register no longer holds sway, the old order has given way to the new one.”

Earlier in this judgment I have reproduce the contents of paragraphs 13 and 10 of the petition and also paragraphs 3 and the appellant’s reply to the petition. These paragraphs contained the allegations of malpractices in the conduct of the Enugu State governorship election of the 14th and 28th April 2007 by the petition/respondent and the denial thereof by t he appellant. The parties have joined issues as regard the conduct of the said election.

Under the law our adjectival law of evidence primarily governs the burden of proof in all cases – the ultimate responsibility to adduce evidence to establish the case as disclosed from the pleadings lies on that person who will lose if no evidence is led at all at the trial. This principle applies evenly to all cases including election petitions. See Awuse V. Odili (supra). The petitioner in ground (b) of the petition states thus –

“The 1st respondent was not elected by majority of the lawful votes cast at the elections.”

The petitioner reached this conclusion because he alleged that voting did not take place at all in most polling booths in the governorship election held in Enugu State in April 2007. Under the law, the onus of proving that voting did not take place in most polling booths is placed squarely on the petitioner – he who asserts must prove. The manner of proving whether or not voting took place in any polling booth is set out in the principles laid down in the cases of Ayogu V. Nnamani (supra) and Nnaji V. Agbo (supra).

In Ayogu V. Nnamani (supra) at page 187 this Court stated thus:-

“In the instant case the appellant who asserted before the lower tribunal that there was no voting materials, no INEC officials to supervise the voting and that no voting in fact took place in at least 13 Local Government Areas out of the 17 LGAs in Enugu State must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the respective LGAs to show that he could not vote on the said 13/4/03 at the said polling booth as there were no voting materials or INEC officials to preside over the voting. He must also establish by credible evidence how the lack of voting in these LGAs affected the final result of the election to his disadvantage.”

Also -in Nnaji V. Agbo (supra) this Court while reversing the decision of the Tribunal said:-

“I must observe that the Tribunal has not only misconstrued the decision of the case under reference but also the provisions of Sec. 137(1) and 139 of the Evidence Act and therefore misplaced the burden of proof.”

At page 890 the Court of Appeal concluded thus:-

“In the instant, by virtue of Section 150 of the Evidence Act there is presumption that elections were duly conducted in all the wards including the disputed areas and that all the condition for  valid elections were duly met, it is therefore incumbent on the petitioner to call the voters to show that they did not vote in the disputed wards on the date because there were no electoral official present and that no voting counting or announcement of results took place in the disputed wards on that day.”

See also Onoyon V. Egari (1995)5 NWLR (Pt.603)416 at 425.

The rationale behind this hallowed principle in the cases above is understandable because he who asserts must proof under Sections 135 to 139 of the Evidence Act.

It is clear from the principle laid down in the dictums cited in the above cases, the Practice Directions did not and could not and was not intended to overrule these principles of law. A plethora of other judicial authorities are also in the same vein i.e. that a petitioner alleging non-voting in order to succeed must call voters from each of the polling booths in the affected constituency or area as witnesses who would tender their voters’ cards and testify that they did not vote on the day of the election and from which it could be ascertained whether there were ticks against the names of registered voters on the day of the election.

Further by virtue of Section 50(2) of the Electoral Act 2006 the issue of whether a voter cast his vote could be ascertained by examining the voters’ register to know whether the person’s name was marked as having voted. See Awuse V. Odili (supra).

The learned trial Judges of the trial Tribunal relied on the provisions of Practice Direction to dispense with the need to require the petitioners to prove their case in the manner laid down in Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra) and Onoyon v. Egari (supra). The position of the law as it stands is that Practice Direction cannot displace the provisions of the substantive law and court decisions. In University of Lagos & Anor v. M.I. Aigoro (1984)11 SC 152 at 191 the Supreme Court, per Obaseki, JSC held:

“Practice Directions do not have the authority of Rules of court although they are instructions in aid of the practice in court. They cannot by themselves overrule court decisions.”

From the foregoing there is nothing explicit or implicit in the said Practice Directions that could justify the said view of the lower tribunal in holding that there were indeed no elections much more creating a ‘new order’. The aforementioned principles established in the decided cases by superior courts of this country have not and cannot be overruled or overtaken by the Practice Directions as far as proof of non-voting in a constituency is concerned.

Accordingly issue No.2 is resolved in favour of the appellant against the respondent.

On the applicability of the substantiality principle as enunciated in Buhari V. Obasanjo (2005)3 NWLR (Pt.941)241 at 370 the trial Tribunal stated thus:-

“It is therefore, our humble view that this petition does not fall within the test of substantial compliance i.e. deduction of votes or percentage of votes affected set down in Buhari & Anor V. Obasanjo (2005) All FWLR (Pt.2731); (2005)3 NWLR (Pt.94 1) at 370. You cannot take something from nothing. What we have here is make belief or a fairy tale. A house built on sand.

The test will only apply where there is credible evidence of proper election, with some rough edges. Not when there is credible evidence that votes were allotted without election. In other words, spurious.”

In Buhari V. Obasanjo (supra) where the substantiality test was enunciated the Supreme Court per Belgore, JSC (as he then was) stated as follows:-

” it is manifest that an election by virtue of Section 135(1) of the Act shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of the Act it must be shown clearly by evidence that the non- compliance has affected the result of the election. Election and victory is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures i.e. votes that the non-compliance attracted or omitted.”

By the petitioner’s own showing as per paragraphs 8 and 9 of his petition, INEC announced the votes polled and declared the appellant elected. There is a presumption of correctness of the result of an election as declared by the electoral commission. This naturally translates to the fact the election in question is deemed to have been duly conducted until the petitioner proves the contrary. As a matter of fact, the Tribunal’s conclusion at page 438 of the record confirmed that elections took place when it states thus:-

” ….. ” We have no doubts in our minds that majority of the electorates in Enugu State were denied the right to choose who their governor should be.”

Implicit in the pronouncement of the Tribunal as set out above is that there was an election at which some people voted a minority of the electorate. Assuming that this finding was right, it is incumbent on the Tribunal to demand proof of what this minority/majority was and how the participation or non-participation affected the final result of the election. See Biyu V. Ibrahim (2006)8 NWLR (Pt.981)1. The Tribunal’s finding contrary to its earlier statement that the exercise was ‘make belief or a ‘fairy tale’ establishes that there was an election, albeit with some imperfections which determination ought to have activated the proper application of the substantiality test as in Buhari V. Obasanjo (supra) in the determination of the petition by the Tribunal.

As in Biyu’s case even where the petitioner is alleging that elections were not conducted or were not conducted in most areas, the substantiality principle will apply. The petitioner must show how the number of votes involved and how that would affect the final result of the election. The substantiality principle was restated by this Court in the recent case of Buhari V. INEC & Ors (Unreported) Suit No. CA/A/EP/1207 delivered on 26th February 2008 and Atiku v. Yar’Adua (Unreported) Suit No. CA/A/EP/3/07 delivered on 26th February 2008. It is crystal clear from the foregoing that substantiality principle enunciated in Buhari V. Obasanjo (supra) is applicable in the determination of the petition before the trial Tribunal and it ought to have been guarded by the principle. Accordingly Issue NO.3 is resolved in favour of the appellant against the respondent.

Issue No.4: were the learned trial Judges right in their application of the Practice Direction 2007 to reject the documents tendered by the appellant in support of the his case?

On this issue learned senior counsel for the appellant submits that the trial Tribunal having elevated the Practice Directions above the relevant substantive Rules of court and judicial authorities erroneously rejected the documents tendered by the appellant in support of his case on the ground that the documents were not front-loaded as required by the Practice Directions. The documents, which the appellant sought to be tendered, are results sheets used at the Governorship election in Enugu State which were duly pleaded by the appellant and which are very relevant and germane to the determination of the petition. Learned counsel referred us to paragraph 2 of the Election Tribunal and Court Practice Direction 2 007, Section 151 of the Electoral Act, 2 006, Paragraph 12(1) of the First Schedule to the Electoral Act 2006, also referred are Nigerian Airport Authority V. Chief Dike Celestine Okoro (1995)7 SCNJ 1 at 13; University of Lagos & Anor V. M.1. Aigoro (supra); Afribank (Nig) Plc V. Akwara (2006) 5 NWLR (Pt.974) 619 at 654; Haruna V. Modibbo (2004) 16 NWLR (Pt.900) 487; Alhaji Atiku Abubakar V. Yar’ Adua (Unreported) Suit No. SC/288/2008 delivered on 25th January 2008.

Learned senior counsel for the appellant submits that the rejection of the results sought to be tendered through RW13 has occasioned substantial miscarriage of justice as the absence of the documents weighed heavily on the minds of the learned trial Judges to the prejudice of the appellant. He urged us to resolve the fourth issue in favour of the appellant against the respondent in this appeal.

In response to the appellant’s submissions on issue No.4 learned counsel for the respondent submits that the appellant did not plead the documents as required by law which they called electoral result (Form EC 8A, EC 8B, EC 8C, EC 8D, EC 8E) that they did not front load any of them in their replies nor did they given evidence even under cross examination by the petitioner/respondent’s counsel of the votes cast at the election in the polling booth and any of the collation centres and the score.

It is further submitted for the respondent that the documents did not exist as at the time the replies were filed by the appellant.

That the only reasonable conclusion is that the Forms EC 8A, EC 8B, EC 8C, EC 8D & EC 8E were not available at the time the appellant filed his reply to the petition. Learned counsel submits that the appeal fails on this issue and should be dismissed.

In essence issue No.4 is on whether the provisions of the Practice Directions made to aid Rules of court is to override the provisions of the relevant substantive law, rules of court or judicial authorities.

In the appeal at hand the appellant applied to tender all the result Forms used at the election i.e. Forms EC 8As, EC 8Bs, EC 8Cs, EC 8Ds & EC 8Es through RW13 but the trial Tribunal relying on the provision of the Practice Direction 2007 rejected the documents tendered by the appellant in support of his case on the ground that the documents were not front loaded as required by the practice Directions.

Now to resolve this issue it is pertinent to look at the law and Rules of procedure guiding the filing of replies to election petitions and the law regulating proceedings in Election Tribunals.

Paragraph 2 of the Election Tribunal and Court Practice Directions 2007 provides as follows:-

“The respondent’s Reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and written statement on Oath.”

Section 151 of the Electoral Act 2006 provides that:-

“The Rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to this Act.”

Paragraph 12(1) of the First Schedule to the Electoral Act 2006 states that:-

“The Respondent shall within fourteen (14) days of entering an appearance, file in the registry his reply specifying in it which facts alleged in the election petition he admits and which of the facts alleged in the election petition he denies and he relies in opposition to the election petition.”

The Evidence Act by virtue of the provisions of Section 1(2) thereof applies to all Election Petition Tribunals since the proceedings are’ judicial proceedings’ within the contemplation of the said Act. Section 6 of the Evidence Act provides that evidence may be given of all relevant facts. The combined effect of Sections 91(1) and 111 (1) of the Evidence Act is that certified true copies of public documents may be tendered in evidence if they are relevant to the fact in issue.

Neither the Electoral Act 2006 including the Schedule made thereto, nor the Evidence Act made any provision to the effect that if a document is not “front loaded” that same will not be admitted in evidence.

The law is that Practice Directions and Rules of court cannot override statutory provisions. In Afri Bank (Nig) Plc V. Akwara (supra) the Supreme Court per Ogbuagu JSC states thus:-

“Neither Practice Directions nor Rules of court can override statutory provisions.”

The Practice Directions 2007 itself subjected itself to any statutory provision. Paragraph 4(1) of the Practice Direction 2007 states thus:-

“Subject to any statutory provision or any provision of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court.”

Beside, Practice Direction is merely direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed. In Alhaji Atiku Abubakar V. Umam Musa Yar’Adua (Unreported) Suit No. SC 288/2008 delivered on Friday 25th January 2008, the Supreme Court per Tobi JSC at pages 24-25 of the judgment states thus:-

“Rules of court, which include Practice Directions are not intended to be ridiculously applied to a slavish point particularly if such application will do injustice in the case… This court cannot myopically or blindly follow Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day not come And what is more, election petitions are sui generis and should be treated in that domain or realm. If courts of law are bound to do substantial justice in ordinary civil matters, how much less in an election petition.”

Therefore t he I earned trial Tribunal fell into grave error when it rejected the documents tendered by the appellant in support of his case on the ground that the documents were not front-loaded as required by the Practice Directions. This is more so when the documents which the appellant sought to be tendered, are results sheets used at the governorship election in Enugu State which are duly pleaded by the appellant and which are very relevant and germane to the determination of the petition. The rejection of the results sought to be tendered through RW13 has occasioned substantial miscarriage of justice as the absence of the documents weighed heavily in the minds of the learned trial Judges to the prejudice of the appellant. Accordingly Issue No.4 is resolved in favour of the appellant against the respondent.

Issues Nos. 5, 6, 7, 8, 9, 10, 11 & 13 taken together.

Were the learned trial Judges right when they held that the evidence of RW13 contradicted the evidence of the appellant’s witnesses.

Did the learned trial Judges properly evaluate the evidence of the appellant’s witnesses.

Was there evidence on record upon which the Tribunal predicated its finding that the incidence at the Central Bank of Nigeria Enugu was a notorious fact.

Were the learned trial Judges rights in their reliance on Exhibit P2 that a majority of the voters in the State did not vote?

Was the learned trial Judges right in taking judicial notice of the provisions of the INEC Guidelines and Regulations, which were not tendered in evidence before the Tribunal?

From the pleadings and evidence before the Tribunal was the learned trial Judges right in holding that the petitioners have proved noncompliance with the provisions of the Electoral Act.

Were the learned trial Judges right when they held that the petitioners’ allegations were not criminal and thereby applied the lower standard of proof required in civil cases.

Did the Petitioners/Respondents adduce sufficient evidence in proof of their case in order to entitle them to judgment?

On Issue No.5, learned senior counsel for the appellant submits that the learned trial Judges of the Tribunal, still in their error held that the appellant’s witness, RW13 testified that she distributed election material to the Electoral Officers by 1.30pm on the day of the election and thus her evidence contradicted that of other witness of the appellant who testified that they voted at about 11.30am. Learned senior counsel argues that the law is that a court/tribunal is bound by its record. That as shown by the Tribunal’s record, contrary to the Tribunal’s holding, nowhere did RW13 say that she distributed election materials by 1.30pm.

Learned counsel contends that the Tribunal was therefore in grave error when it nullified the appellant’s election on this ground.

Learned senior counsel referred to Idiok V. State (2006) 12 NWLR (Pt.993) at 21-22; Dagayya V. State (2006)7 NWLR (Pt.980) 637 at 665; Uwaekweghinya V. State (2005) 9 NWLR (Pt.930) 227 at 250; Fatoba V. Ogundahunsi (2003) 14 NWLR (Pt.840) 323 at 347.

On Issue NO.6, learned senior counsel for the appellant submits that based on their erroneous conclusion that the evidence of the appellant’s witnesses are contradictory, the learned trial Judges of the Tribunal failed to properly evaluate the evidence of the appellant’s witnesses. Instead they erroneously found solace in the use of the words ‘we do not believe them’ and failed to evaluate the evidence before them. Learned senior counsel referred to Onafowokan V. The State (1987)7 SCNJ 233 at 245; Sunday Onuoha V. The State (1989) 2 NWLR (Pt.101) 23 at 40; Bozin V. The State (1985) 2 NWLR (Pt.8) 465; Okonji V. The State (1987) 1 NWLR (Pt.52) 659; Alhaji Akibo V. Joseph Opaleye (1974) 11 SC 189 at 203; Azudibia V. Ogunewe (2004) All FWLR (Pt.205) 289.

On Issue No.7, learned senior counsel for the appellant submits that the trial Tribunal nullified the election on an alleged incidence at CBN, Enugu, which the learned trial Judges termed “notorious fact amongst all stakeholders”. No single witness testified before the Tribunal that he is a stakeholder, yet the Tribunal nullified the election. Learned senior counsel referred to Kasimu V. NNPC (2008) 3 NWLR (1075) 269 at 588; Ogbu V. Ani (1994)7 NWLR (Pt.335)128 at 148; P.A.N V. Oje (1997) 11 NWLR (Pt.530) 625 at 635; Enugu State Civil Service Commission & Ors V. Agu Geofrey (2006) 18 NWLR (Pt.1011) 643 at 670; Overseas Construction Co. Ltd V. Greek Enterprises (Nig) Ltd (1985) 3 NWLR (Pt.13) 407 at 414.

On Issue No.8, learned senior counsel for the appellant submits that the learned trial Judges of the Tribunal were also in grave error when despite the objection of the appellant’s counsel, admitted in evidence and relied on Exhibit P2 in nullifying the election of the appellant when the document is inadmissible in law and is self-serving – reference made to Omega Bank (Nig) Plc V. O.B.C. Ltd (2005)8 NWLR (Pt.928)547 at 582; Trade Bank Plc V. Dele Morenikeji (Nig) Ltd (2005) 6 NWLR (Pt.921) 309 at 348; Chitex Ind Ltd V. O.B.I (Nig) (2005)14 NWLR (Pt.945) 392 .

On Issue No.9, learned senior counsel for the appellant contends that the trial Judges of the Tribunal also erroneously took judicial notice of the provisions of INEC Guidelines in nullifying the election of the appellant when the purported “INEC Guidelines” was not tendered at the trial and when indeed there is no evidence before the Tribunal that such Guideline was ever made. Reference made to Buhari V. Yar’ Adua (Unreported) CA/A/EP/2/07 1 at 37; Onyejekwe V. Onyejekwe (1999) 3 NWLR (Pt.596) 482 at 503.

On Issue NO.10, neither learned senior counsel for the appellant submitted that notwithstanding that the petitioners neither pleaded with specifying the particulars nor offered credible evidence in proof of the alleged non-compliance, the learned trial Judges of the Tribunal erroneously held that the petitioners have proved noncompliance.

Learned senior counsel referred to Kawuri V. Dalori (1998) 6 NWLR (Pt.550) 149; Opia V. Ibru (1992) 3 NWLR (Pt.658)688-689; Ogu V. Ekweremadu (2005) All FWLR (Pt.260) 1.

On Issue NO.11, learned senior counsel for the appellant submitted that the learned trial Judges erred in law when they held that the allegations of electoral irregularities, wrong doings, non voting etc and the non-compliance with the Electoral Act are not criminal in nature, such that must be proved beyond reasonable doubt. Rather they are civil which are to be proved on balance of probability or preponderance of evidence – reference made to Black’s Law Dictionary 6th Edition page 370; Blackstone Criminal Practice, 2001 page 5; Eruotor v. Ughumiakpor (1999)9 NWLR (Pt. 619)460; Egbe v. Gabriel Etchie (1955 – 1956)134; Buhari v. Obasanjo (2005)18 NWLR (Pt.956)96; Abdullahi Muhammed Wali & Anor v. Attahiru Dalhatu Bafarawa & Ors (2004)16 NWLR (Pt.898)1 at 44; Opia v. Ibru (1992)3 NWLR (Pt.231)658; Ayua v. Adasu (1992)3 NWLR (Pt.231)598; Ekpe v. Morah (1993)3 NWLR (Pt.617)146; Nwobodo v. Onoh (1984)1 SCNLR 1; Omoboriowo v. Ajasin (1984)1 SCNLR 108; Adun v. Osunde (2003)16 NWLR (Pt.847)643; Iman V. Sheriff (2005)4 NWLR (Pt.914)80 at 203; Kanu v. State (1988)4 NWLR (Pt.90)503; Okonji v. State (1987)1 NWLR (Pt.52)659 670; Ayogu v. Nnamani (2006)8 NWLR (Pt.981)160.

Issue No.13, is on evaluation of evidence which has been dealt with under issue NO.6.

At page 17 of the respondent’s brief of argument at paragraph 8 of the said brief titled Reply to the 13 issues for determination in the 1st appellant’s brief, the learned counsel for the respondent identified issues 5, 6, 7, 8, 9, 10, 11and 13 as consideration of evidence. The learned counsel for the respondent did not reply frontally to issues as submitted in the appellant’s brief that is taking them one after the other as done by the learned senior counsel for the appellant, but the sum total of his reply to these issues as argued jointly is that the appellant did not give evidence regarding the votes/scores garnered at the polling booth and any of the collation centres and relied on the cases of Omoboriowo v. Ajasin (supra) and Nwobodo v. Onoh (supra). He also argued that without the appellant stating the scores of the election it cannot be left to presumption that the appellant had the highest number of lawful votes cast at the election or that the appellant scored 1/4 of the votes cast in 2/3 of the 17 Local Government Areas of Enugu State.

Learned counsel for the respondent further submitted that the petitioner/respondent’s case is that there was no election on the 14th and 28th April 2007 Gubernatorial Election in Enugu State in accordance with the provisions of the Constitution of the Federal and Practice Directions. Counsel submits that the appeal fails on these issues and should be dismissed.

The case of the petitioner/respondent can be gathered from for his petition as presented before the learned trial Tribunal. The petitioner/respondent pleaded in paragraphs 8 and 9 of the petition as follows:-

“8. By or about the 29th or 30th day of April, 2007 the 2nd and 3rd respondents announced over the radio stations that the 1st respondent is the winner of gubernatorial seat.

9. The 2nd and 3rd respondents purportedly awarded the 1st respondent 811,756 votes and the petitioner 5,514 votes.”
10. And your petitioner objects to the said result on the Grounds that –

(a) The election did not hold within the prescribed period of 8am to 3pm or 10am to 5pm.

(b) The 1st respondent was not elected by a majority of lawful votes cast at the elections.

(c) The elections were invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act 2006.

(d) Falsification and inflation of figures allegedly scored by the 1st respondent.

(e) Gross irregularities in the polling booths and results were not announced thereat. There was no collation of the result in the wards as the materials including the result sheets were not delivered to the polling centres by the 2nd & 3rd Respondents.

(f) There was no voting in most of the polling booths.”

From–the foregoing paragraphs it can be seen that the case of the – petitioner is in effect that there was no election in Enugu State due to corrupt practices, non-compliance with the Electoral Act, no voting at all in most polling booths, falsification and inflation of figures and the election did not hold within the prescribed period of 8am to 3pm on 14th April 2007 or 10am to 5pm on 28th April 2008.

At the end of trial, the Tribunal found in favour of the petitioner now respondent that there was non-voting and non compliance with the provisions of the Electoral Act in all the polling booths in Enugu State.

The law is now settled on the nature, quantum and quality of evidence that a petitioner alleging non-voting in an election must offer to entitle him to succeed. In Ayogu V. Nnamani (2006)6 NWLR (Pt.981)160 at 187 of the report, the Court of Appeal stated thus:-

“In the instant case, the appellant who asserted before the lower tribunal that there were no voting materials, no INEC officials to supervise the voting and that no voting in fact took place in at least 13 Local Government Areas of the 17 LGAs in Enugu State must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the respective LGAs to show that he could not vote on the said 13/4/03 at the said polling booth as there was no voting materials or INEC officials to preside over the voting. He must also establish by credible evidence how the lack of voting in these LGAs affected the final result to his disadvantage.”

Also in Nnaji V. Agbo (2006) 2 EPR 867 at 890 this Court states thus:-

“In the instant case, by virtue of Section 150 of the Evidence Act there is presumption that elections were duly conducted in all the wards including the disputed areas and that all the conditions for valid elections were duly met, it is therefore incumbent on the petitioner to call the voters to show that they did not vote in the disputed wards on the date because there were no electoral officials present and that no voting counting or announcement of results took place in the disputed Wards on that day.”

And in Onoyon V. Egari (1995)5 NWLR (Pt.603)416 at 425 the Court of Appeal stated the law thus:-

“…The appellant asserted that there was no election in some area wards and there were election malpractices, it was for the appellant to lead all available evidence to establish those allegations. The argument that the appellant having led evidence to show that PW4, PW5 and PW6 did not vote and that some voters’ cards were not accredited, that the onus of proof has shifted on the respondent to satisfy the Tribunal, by producing the voters’ register to show that the voters were accredited has no basis in law.

The voters’ register is a public document in the official custody of the Electoral Commission and if it is relevant in an election petition, it is the petitioner’s duty to subpoena the electoral body to produce the said voters’ register.

No doubt, the allegation of the petitioner that election did not hold in 17 wards in the constituency

is a very serious one and the burden of proof on the petitioner is very weighty and it is not what can so easily be discharged by only bringing people to say that they spent the whole day in those wards and that there was no voting and the burden of proof will then be shifted to the respondents to show that there was voting, accreditation, counting of votes and announcement and also tendering the voters’ register which is a public document which the petitioner is expected to subpoena the Electoral Commission to produce so that he could prove his case. If this is the case, anyone can easily raise such a ground in his petition and sit back and leave the respondents to struggle it out and show that there was election.”

Beside under Section 50(2) of the Electoral Act, 2006, the issue of whether a voter cast his vote is only ascertainable by examining the voters register to know whether the person’s name has been marked as having voted. The rationale behind this hallowed principle in the cases above is understandable because he who asserts must prove under Section 135 to 139 of the Evidence Act.

In the instant appeal, there are 260 wards and 2,874 polling booths in Enugu State. In proof of his case the petitioner/respondent called 17 witnesses one witness per Local Government Area except for Udi Local Government Area of which two witnesses testified. In Aninri and Enugu North Local Government the petitioner/respondent did not call any witness. The evidence of these seventeen (17) witnesses as can be gathered from the record of proceedings before the court, did not given direct and credible account of what happened in their polling booths let alone at the 2,874 polling booths in Enugu State nor did any of them tender their voter’s card. The petitioner also failed to tender the voters’ register which is a public document that he ought to have subpoenaed INEC to produce.

It is based on the evidence of these seventeen witnesses that the trial Tribunal extrapolated non-compliance with the provisions of the Electoral Act in all the polling booths in Enugu State. At page 127 of the printed record the Tribunal stated thus;-

“However the witnesses were later streamlined and the petitioner and each set of the respondents were directed to call 17 witnesses each. That is a witness per Local Government Area…We believe those numbers of witnesses would be able to capture the election in the Local Government Areas”

At page 435 of the record the Tribunal further stated:-

“… We believe that under the present dispensation the old procedure of calling endless number of witnesses has changed. Even though the election is for whole State the evidence of a witness from each Local Government would have capture the election pattern in the Local Government Area…”

Based on the above streamlined seventeen witnesses, the Tribunal comes to the hurried conclusion that less than 5% of the State had electoral materials and that voting did not take place in the State.

The nature or quantum of evidence required for proof has at been unequivocally set down in the principle of law as enunciated in the cases of Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra) & Onoyon V. Egari (supra) and the learned trial Judges at the lower Tribunal as a matter of judicial discipline and in accordance with the principle of stare decisis were bound to follow and apply same in this case.

The evidence offered by a disenfranchised voter on a nonvoting can only relate to the polling booth or station where he was registered to vote but unable to vote. It has never been the law and still is not the law that the prove of non-voting in a constituency or area, a petitioner would call just one voter in the constituency or Local- Government with numerous polling booths to come and merely say that he could not vote at the polling booth at the election or that he was out all day in the sun, such bare testimony, even if uncontradicted cannot be applied and treated as evidence of non-voting in the entire constituency or the entire Local Government Area.

In the instant case it does not stand to common sense and logic to hold that the evidence of seventeen (17) witnesses would capture the election pattern in 260 wards and 2,874 polling booths in Enugu State of Nigeria. The law is that it is mandatory on a petitioner who asserts before the lower tribunal that there were no voting materials, no INEC Officials to supervise the voting and that no voting in fact took place in most of the polling booths in Enugu State must prove so by calling at least a voter from each of the 2,874 polling booths to show that there is no voting. Indeed the burden of proof on the petitioner is very weighty but that is what the law placed on him. In the instant appeal it is crystal clear that the trial Tribunal did apply the principle of law enunciated in Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra) & Onoyon V. Egari (supra) in coming to the conclusion that less than 5% of the State had electoral materials and that voting did not take place in the State. Accordingly, I resolve issues 5, 6, 7, 8, 9, 10, 11 & 13 in favour of the appellant against the respondent.

Issue No. 12:

Were the learned trial Judges right in extending time for the petitioners to file their written address and admitted same for use without affording the appellant the opportunity of reacting to the address by way of a reply on points of law?

On this issue, learned senior counsel for the appellant submitted that the learned trial Tribunal denied the appellant the opportunity to file a reply on points of law in response to the new issues of law raised in the petitioner’s address. That the Tribunal relied on these new issues raised by the petitioner in nullifying the election of the appellant – reference made to Akabogu V. Akabogu (2003)9 NWLR (Pt.826445; Governor of Ekiti State V. Prince James Adeleke Osayomi (2005)2 NWLR (Pt.909)67.

In his response to the submissions of the appellant on this issue, learned counsel for the respondent submitted that the doctrine of fair hearing is double-edged and may favour or protect either of the parties to the proceedings depending on the circumstances of the case and conduct of the parties. That the question of whether or not there w as breach of fair hearing rule against a party to a judicial proceeding is an objective one based on the hypothetical view of a reasonable person who witnessed the proceedings from its beginning to its conclusion. Reference made to Adeloye V. LONA Motors Ltd (2002)NLRR (Pt.769)445 at 462-463; Baba Akagha V. NCATC (1986)5 NWLR (Pt.42)514; Adeniyi V. Governing Council of Yaba College of Technology (1993)6 NWLR (Pt.300)426; Kim V. State (1992)4 NWLRÂ Â (Pt.233)17; A-G Ondo V. A-G Federation (2002)9 NWLR (Pt.772)222. Learned counsel for the respondent urged us to dismiss the appeal on these issues.

From the record of proceedings before the court, the respondent filed his written address out of time and the said written address was served on the learned senior counsel to the appellant inside the Tribunal on 7/1/2008, a date on which learned counsel for the parties were to adopt their respective written addresses.

Learned senior counsel for the appellant raised objections to the two written addresses filed on behalf of the petitioners in the consolidated petitions on the grounds that –

(1) “The petitioners in the consolidated petition were entitled to file only one written address and this has been done by Chief Enechi Onyia, SAN, who was the lead counsel for the petitioners in the consolidated suits.

(2) That the written address filed by H.B.C. Ogboko Esq. purportedly for the 2nd petitioner was irregular and should be discountenanced.

(3) That the written address filed by Chief Enechi Onyia, SAN for the petitioners in the consolidated petition, having been filed out of time without leave of the Tribunal was incompetent and should be discountenanced. ”

In his response, H.B.C. Ogboko Esq. who led the team of counsel appearing for the petitioners on the said day conceded that the written address filed by himself and Chief Elechi Onyia, SAN were filed out of time. He made oral application for extension of time to regularize the written address filed out of time for the petitioners in the consolidated petition. This application was vehemently opposed by the learned counsel for the respondents Chief (Mrs.) A.J. Offia, SAN and Agu Gab Agu Esq. The trial Tribunal reserved its ruling on the application for extension of time and adjourned the case for judgment on a date to be communicated to the parties.

In its judgment at page 430 vol.3 of the record, the learned trial Judges held as follows with regard to the issues raised by the parties on the written addresses –

“In view of our directive that the petitions are regarded as one, the written address titled 2nd petitioner address by H.B.C Ogboko is hereby discountenanced. With regards to the one filed by Chief Enechi Onyia, OON, SAN, who had been in the case which the learned counsel for the petitioner conceded was filed late. We hereby deemed it properly filed. In other words, we grant the oral application for extension of time to file it. It is deemed properly filed and served.”

  The learned trial Judges did not call upon the respondents in the consolidated petitions to give any reply on points of law raised in the petitioners’ written address which was admitted in their judgment. The Tribunal relied on the said written address to arrive at its decision against the appellant herein.

Now paragraphs 5(12), (13) & (14) of the Election Tribunal and Court Practice Directions made the following provisions for the filling of written addresses by the parties to an election petition VIZ:-

“5(12) – where the other party calls evidence he shall within 10 days after close of (sic) its evidence file a written address.

(13) upon being served with the party’s written address the party beginning shall within 7 days filed his written address.

(14) The party who filed the first address shall have a right to reply on points of law within five days the service of the other party’s address.”

By the above provisions, the appellant and other respondents at the trial were entitled to give reply on points of law to the written address submitted by the petitioner. The Tribunal neither gave notice to the respondents at the trial to submit their written replies on points of law nor did it call for such replies orally before proceeding to consider the case and deliver judgment thereon. The situation clearly deprived the appellant and other respondents before the Tribunal of the opportunity of canvassing the issues of law, which arose in the petitioners’ written address.

For example, the petitioners raised issues for determination which amongst others included –

“Whether the 2nd & 3rd respondents conducted the governorship election in Enugu State on 14/4/2007 28/4/2007 in accordance with Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999.”

This issue of law which was heavily canvassed by the petitioners was not anticipated or attended to in the written addresses of the appellant and the other respondents at the trial. There was therefore the need for the appellant as well as the other respondents to be-afforded the opportunity to response on this issue of law which was not done. It is very glaring-from the judgment of the Tribunal that the learned made very serious findings on this issue and relied very much on the petitioners counsel submissions in the written address in arriving at their final decision in this case against the appellant and other respondents without hearing from them on this point. This Tribunal’s finding on this issue had informed one of the grounds of the appellant’s complaints in this appeal, specifically Issue NO.1.

Counsel’s addresses in a proceeding, whether written or oral form an integral and very essential part of hearing. In Akabogu V. Akabogu (2003) 9 NWLR (Pt.826) at 445 this Court per Akpabio JCA held thus:-

“…Address form part of the case and failure to hear the address of one party however overwhelming the evidence, seems to be one sided. It vitiates the trial. ”

Therefore, where a party has not been afforded the opportunity of addressing the court (orally or in writing) through his counsel, either on the evidence or on issues of law arising in the case, or where he has been out rightly precluded from tendering such an address, he cannot be said to have been accorded a fair hearing m the proceedings. See the case of Governor of Ekiti State V. Prince James Adeleke Osayomi (2005)2 NWLR (Pt.909) 67.

In the instant appeal it is very clear that the appellant has been deprived of his inherent right under the doctrine of fair hearing and pursuant to Paragraph 5(14) of the Election Tribunal and Court Practice Directions to file his address to reply on points of law to the written address of the petitioners – this denial ultimately prejudiced the appellant greatly and occasioned serious miscarriage of justice. Accordingly, Issue NO.12 is resolved in favour of the appellant against the respondent.

Learned senior counsel for respondent filed a respondent’s Notice of contention dated and filed on 20th February 2008 – the Notice titled “Notice of Intention to contend that judgment should be affirmed on other grounds including those relied on by the court below.”

The Notice contained three grounds and the grounds without their particulars read thus:-

“Ground One:

The learned Tribunal erred in law when it failed to resolve the presumption as contained in Section 149(D) of Evidence Act in favour of the Petitioner.

Ground Two:

The learned members of the Tribunal misdirected themselves in law when they held that 5th to the last Respondents need not to reply to the petition and that non-reply to the petition to them did not amount to admission.

Ground Three:

The learned members of the Tribunal misdirected themselves in law when from the petitions and Replies to 2nd to 3rd respondents admitted by implication that they have no records of the voting in any of the 17 LGAs of Enugu State.”

Both learned counsel to the respondent and appellant advanced submissions in their briefs before the court in respect of the said respondent’s Notice of Contention.

Earlier in this judgment all the thirteen issues formulated by the appellant have been resolved in favour of appellant and some of the issues especially Issue No.12 on fair hearing fundamentally affects the judgment of the lower Tribunal as it vitiate it entirely, therefore the consideration and determination of issues canvassed in the respondent’s Notice of Contention is a futile or academic exerc1se as the judgment sought to be affirmed on other grounds is vitiated. Accordingly, the respondent’s Notice of Contention dated and filed on 20th February 2008 is discountenanced.

In the result, having resolved all the issues formulated in this appeal in favour f the appellant this appeal is meritorious, it succeeds and is allowed. The judgment of the lower Tribunal delivered on the 18th day of January 2008 in Petition No. NAGL/EPTT/EN/GOV/35/2007 which nullified the election of the appellant as Governor of Enugu State is hereby set-aside – in its place the petition is hereby dismissed.

The appellant is entitled to costs, accordingly a costs of fifty thousand Naira (N50,000.00) is awarded to the appellant against the respondent.

CA/E/EPT/17/2008:

This appeal is consolidated with appeal No. CAE/EPT/18/2008 which had been determined in the foregoing pages of this judgment. The appeal arose from the judgment of the two consolidated petitions of the petitioners/respondents which was delivered on the 18th January 2008. This second set of appellants was respondents in the consolidated petitions – some of the issues raised in this appeal have already been dealt with and determined in the foregoing pages of this judgment. Already I have set out the facts of this case.

Learned counsel for the 2nd set of appellant informed the court .that their brief of argument is dated 20th March 2008 and filed on 28/3/08 they also filed their reply brief which is dated 26/5/08 and filed same date. He adopted and relied on the two briefs and urged us to allow the appeal.

Learned counsel for the 2nd Set of respondent informed the court that his brief of argument is dated 8/5/08 and filed on the 22/5/08. He adopts the brief and urged us to dismiss the appeal.

In his brief of argument, learned counsel for the 2nd set of appellants formulated six issues for determination – the issues are:-

“1. Whether it does not amount to denial of fair hearing, breach of statutory provisions and indeed arbitrariness to foreclose the respondents for no justifiable reason from replying on points of law to the written address(es) of the petitioners.

2. Whether the failure to state the scores and names of the candidates by the petitioners in the petition, which constitutes non-compliance with the mandatory provision of Paragraph 4(l)(c) of the First Schedule to the Electoral Act 2006 should not have rendered the petition null and void.
3. Whether from the totality of the evidence on record and adduced before the Tribunal during the trial, the Petitioners have proved their case in order to entitle them to succeed on their claim.
4. Whether a candidate who is statutorily disqualified or unqualified to contest an election can institute and sustain an election petition under the Electoral Act, 2006.
5. Whether an order can enure against the 4th to 318th Respondents who are agents of the 2nd respondent and who were not served according to law or at all.
6. – Whether the compliance or non-compliance with Section 179(2) of the Constitution of Federal Republic of Nigeria, 1999 was pleaded in evidence and or an issue at the trial to warrant the Tribunal to make a finding on it.”

Learned counsel for the 2nd set of respondents also formulated similar issues as formulated by the 2nd set of appellants.

Learned counsel for the 2nd set of respondents in his brief of argument incorporated preliminary objection – the objection read thus:-

“1. The 1st respondent herein raises an objection to grounds 2 and 6 of the grounds of appeal for being incompetent.

2. The said ground 2 is a complaint against the failure of the lower Tribunal to dismiss the petition on the grounds that the 1st respondent did not comply with Section 4(1)(c) of the Electoral Act 2006.”

Counsel for the respondent submitted that this complaint did not arise from the judgment of the court delivered on 18/1/08 but against the decision of the court delivered on 21/8/07 and that there was no appeal whatsoever against same. It is submitted further that assuming but without conceding that the said ground is valid, leave of this court ought to be sought and obtained before the appeal can be argued as it raises mixed law and fact and such leave not having been obtained. Likewise issue NO.2 in the appellant’s brief which is predicated upon the said ground 2 is equally incompetent and ought to be struck out – reference made to Ikweki V. Ebele (2005) 7 MJSC 125 at 150; Gbademosi V. Dairo (2007)3 NWLR (Pt.1025)282.

Learned counsel argued that ground 6 of the grounds of appeal did not arise from the judgment of the court delivered on the 18/1/08 therefore same is incompetent and liable to be struck out. That issues Nos. 2, 4 and 5 contained in the appellant’s brief of argument having been distilled from grounds 2 and 6 which are incompetent grounds of appeal are equally incompetent and ought to be discountenanced and struck out reference made to Ogunyade V. Oshunkeye (2007)15 NWLR (Pt.1057)218; Nwankwo V. E.D.C.S.U.A. (supra) at 395-396. Learned counsel for the 1st respondent also contends that this appeal and the appellant’s brief of argument are incompetent and ought to be struck out in its entirety. That pursuant to paragraph 4 of the Practice Direction (No.2) pf 2 007, the Secretary of the Tribunal shall caused to be compiled within a period of not more than 10 days the record of proceedings for use in the appeal. That the appellant did not comply with the mandatory provisions of Paragraph 4 of the Practice Direction, and that the appellant did not comply with mandatory provisions of Paragraph 5 of the Practice Direction by filing-their brief of argument in the court 10 days from the date of receipt of the records of appeal. Counsel for the 1st respondent contends that where an Act make a mandatory stipulation to operators of the Act must comply strictly with such provisions – reference made to Oju L.G. V. INEC (2002)14 NWLR (Pt.1079)1 at 14; Olaniyan V. Oyewole (2008)5 NWLR (Pt.l079)1l4 at 140.

Learned counsel urged us to hold that the appeal and the brief of argument filed by the appellant are incompetent and strike it out accordingly.

Learned counsel to the 2nd appellant filed a reply brief on 26/5/08 but did response to the respondent’s submissions on the preliminary objection.

I have given due consideration to the grounds of preliminary objection and the submissions made thereto. It is clear from the record of proceedings before the court that ground 2 of the grounds of appeal did not arise from the judgment of the lower Tribunal delivered on 18/1/08 but against the decision of the court delivered on the 21/8/07 and from the record of proceedings before the court  there is no appeal whatsoever against same. Accordingly, ground 2 of the grounds of appeal is liable to be struck out.

With regard to ground 6 of the grounds of appeal I have carefully perused the judgment of the lower Tribunal delivered on 18/1/08 and it is my finding that the said ground did not arise from the judgment and it was not directed at the ratio in the decision of the said judgment – the said ground is also liable to be struck out.

Having found that grounds 2 and 6 of the grounds of appeal are incompetent, they are hereby struck out. Issues Nos 2, 4 and 5 contained in the appellant’s brief of argument having been distilled from grounds 2 and 6 which are incompetent grounds of appeal are equally incompetent and hereby discountenanced and struck out.

The second leg of the respondent’s preliminary objection is that the appellant did not comply with the provisions of Paragraphs 4 and 5 of the Practice Direction 2007 on the compilation of record of proceedings and filing brief of argument, failure of which render the appeal and the brief of argument filed by the appellant incompetent.

Compilation of record of proceeding, filing of brief of argument, hearing and determination of appeals are regulated by the Court of Appeal Rules, 2007 and not by Election Tribunal and Court Practice Directions, 2007 therefore the appellant’s and brief of argument are competent and ought to proceed to hearing and determination. Accordingly, this second leg of preliminary objection failed and is hereby dismissed. On the whole, the Notice of preliminary objection partially succeeds.

With the striking out of Issues 2, 4 and 5 the appellant is now left with Issues 1, 3 & 6 as live issues for determination in this appeal. For ease and convenience the issues are re-numbered 1, 2 and 3:

Issue NO.1:

Whether it does not amount to denial of fair hearing, breach of statutory provisions and indeed arbitrariness to foreclose the respondents for no justifiable reason from replying on points of law to the written address (es) of the petitioners.

On this issue, learned counsel for the 2nd appellant in the consolidated appeal submitted that the Honorable Tribunal was wrong in admitting and considering the written address of the petitioner filed outside the time allowed without their applying through a motion as provided by Paragraph 6(2) & (3) of the Election Tribunal and Court Practice Direction, 2007. That all applications shall be by motion and or also not allowing the appellant to respond by way of reply to points of law to the admitted addresses. Learned counsel referred to General Muhammadu Buhari V. Alhaji Muhammadu Dikko Yusuf (2003) FWLR (Pt.174)329; Eshenake V. Gbinji (2005) All FWLR (Pt.289)1270. Learned counsel urged us to hold that the Tribunal considered an improper written address and/or denied the respondents their right to reply on points of law and thereby denied the respondents fair hearing which manifestation of miscarriage of justice is and resolve in favour of the appellants.

In reply to the submissions on this issue learned counsel for the 2nd set of respondent submitted that this issue as raised and argued by the appellant in their brief if misconceived. That the lower Tribunal did not deny the appellants the right to reply on points- of law. That the 1st respondent filed their reply they were within time and that the appellants were enjoined to file their reply on points of law within two days after service of the reply on them as ordered by the court on 3/12/07.

Learned counsel contend that the appellants failed to take the ample opportunity they were offered to file their reply on points of law only to make a u-turn and complain about fair hearing.

Counsel referred to Pam V. ANPP (2008)4 NWLR (Pt.1077)219 at 250; A-G Benue State V. Umar (2008)1 NWLR (Pt.1068)311; CDC (Nig) Ltd V. SCOA Motors (Nig) Ltd (2007)3 NWLR (Pt.l020)1; UBA V. Etiaba (2008)6 NWLR (1082)154.

This issue has been comprehensively and exhaustively dealt with in this consolidated judgment as Issue NO.12 in the 1st set of appellants appeal. It is very clear from the record of proceedings before the court that the Tribunal below refused to allow the respondents to the petition to reply on points of law to the address of the petitioners and proceed to consider and make findings based on the submissions made in the said petitioner’s address in its judgment without hearing the respondents to the petition this is a clearly a breach of the doctrine of fair hearing or denial of fair hearing which fundamentally affects the judgment of the lower Tribunal and vitiate it in its entirety.

It is the law that where a party has not been afforded the opportunity of addressing the court (orally or in writing) through his counsel either on the evidence or on issues of law arising in the case, or where he has been out rightly precluded from rendering such address, he cannot be said to have been accorded a fair hearing in the proceedings. In Akabogu V. Akabogu (2003)9 NWLR (Pt.826) at 445 this Court per Akpabio JCA stated thus:-

“…Address form part of the case and failure to hear the address of one party however overwhelming the evidence seems to be one sided. It vitiates the trial…”

Accordingly, the failure of the trial Tribunal to afford the 2nd set of appellants the opportunity to reply on points of law and canvass serious issues of law raised in the petitioners written address has occasioned a grave miscarriage of justice and this issue is resolved in favour of the 2nd set of appellants against the 2nd set of respondents.

Issue NO.2:

Whether from the entirety of the evidence on record and adduced before the Tribunal during the trial, the petitioners have proved their case in order to entitle them to succeed on their claim.

On this issue, learned counsel for 2nd set of appellants submitted that the Tribunal failed to properly evaluate the evidence before it and introduced extraneous evidence that rendered the judgment perverse learned counsel referred us to a number of authorities notably, A-G Oyo Sate V. Fairlake Hotel Ltd (No.2) (1985)5 NWLR (Pt.121)255; Obi-Odu V. Duke (2006)All FWLR (Pt.337)537; Azike V. Ararume (2005)All FWLR (Pt.263)740; Absambe V. Bank of the North Ltd (2004)All FWLR (Pt.221)1427; Oboro V. R.S.H & P.D.A (1997)9 NWLR (Pt.521) 425; Agu V. Nnadi (2003) All FWLR (Pt.139) 1537; C.S.S Bookshops Ltd V. R.T.M.C. Rivers State (2006) All FWLR (Pt.319)819; Mogaji V. Odofin (1978)4 SC 91; Ebba V. Ogodo (1984)1 SCNLR 372; Abisi V. Ekwealor (1993)6 NWLR (Pt.302)643; Agbomeji V. Bakare (1998)9 NWLR (Pt.564)1; Jack V. Wyyte (2001)14 NWLR (Pt.732)45; INCAR (Nig) Plc V. Bolex Ent. (Nig) (2001)12 NWLR (Pt.728)646; NEPA V. Ososanya (2004) All FWLR (Pt.196)908; Buhari V. Obasanjo (2005)All FWLR (Pt.273)1 at 122; Awolowo V. Shagari (2001) All FWLR (Pt.73)53; Akinfosile V. Ijose (1960) SCNLR 447; Ayogu V. Nnamani (2006)8 NWLR (Pt.981)160; Nnaji V. Agbo (2006) EPR 867. Learned counsel submits that calling 17 witnesses specifically for 17 polling booths cannot satisfy by any stretch of imagination the proof required to show the conduct of election in 2,874 polling booths scattered in various parts of the State manned by different people. That the Tribunal did not correctly approach the assessment of the value on the evidence and if it had it would have satisfied itself that on the preponderance of evidence the scale weighed in favour of the respondents the petitioner having woefully failed to discharge the burden of proof.

Learned counsel urged us to resolve this issue in favour of the appellant.

In response to the submissions on Issue No.2, learned counsel to the 2nd set of respondents submitted that the circumstances for the interference with the findings of the Tribunal do not exist.

That the appellants failed to front-load the documents in accordance with Election Tribunal Procedure Rules which require them to show that there was a gubernatorial election in Enugu State on the 14th and 28th April 2008. Further learned counsel for the 2nd set of respondents contends that election result is a mater of records the appellants failed to show the number of votes scored in 17 Local Government Area of the State or 260 wards in the whole State and that the appellants failed to tender the result of the election before the Tribunal. Further the Tribunal believed the witnesses for the petitioner/respondent and disbelieved the witnesses for the respondents/appellants learned counsel referred to Adeleke V. Iyanda (2001)13 NWLR (Pt.729)1; UBN Plc V. Zuobai (Nig) (2008) NWLR (Pt.1078)257; Govt. Ekiti State V. Ojo (2006)17 NWLR (Pt.1007)95; Boni Haruna V. Modibo (2004)16 NWLR (Pt.900)487; Olaniyan V. Oyewole (supra); Musay. Yarimar (1995)7 NWLR (Pt.511)27; Abah V. Jabusco (Nig) Ltd (2008)3 NWLR (Pt.1075)526; Edward Kunde Swen V. Benjamin Ako Dzungwe (1966) NMLR 303; Okwejiminor V. Gbakeji (2006)5 NWLR (Pt.1079)172; Mohammed V. Mohammed (2008)6 NWLR (Pt.1082)73; Okonkwo V. INEC & Ors (2006)2 EPR 94; Chief Emmanuel Osita Okereke V. Alhaji Musa Yar’Adua (2008)6 NWLR (Pt.1082)37; Ogunsakin V. Ajidara (2008)6 NWLR (Pt.l082)1; Onakulu Resources Ltd V. NECC (2007)16 NWLR (Pt.1060)270; Ogoejiofor V. Siemens Ltd (2008)2 NWLR (Pt.1071)283; Sodipo V. Ogidan (2008)4 NWLR (Pt.1077)342. Learned counsel urged the Court to hold that the petitioners discharged the burden of proof cast upon them; succeeded on the strength of their case and are entitled to judgment and resolve this issue in their favour.

Issue NO.2 under consideration h as been exhaustively dealt with in this consolidated appeal while dealing with Issues Nos. 5, 6, 7, 8, 9, 10, 11 & 13. The complaint of the petitioners was that election materials were not supplied in most areas of Enugu State and that voting did not take place in most of the polling booths in Enugu State the lower Tribunal based on the evidence of 17 witnesses made a finding that less than 5% of the State had electoral materials and that voting did not take place in the State.

The nature on quantum of evidence required for proof has been unequivocally set down in the principle of law as enunciated in the cases of Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra) & Onoyon V. Egari (supra).

The learned trial Judges at the lower Tribunal as a matter of judicial discipline and in accordance with the principle of stare decisis were bound to follow same in this case.

The evidence offered by a disenfranchised voter on a nonvoting can only relate to the polling booth or station where he was registered to vote, but unable to vote. It has never been the law and is still not the law that to prove non-voting in a constituency or area a petitioner would call just one voter in the constituency or local government with numerous polling booth to come and merely say that he could not vote at polling booths at the election or that he was out all day in the sun – such bare testimony even if uncontradicted cannot be applied and treated as evidence of nonvoting in the entire constituency or the entire local government area.

In the appeal at hand it does not stand to common sense and logic to hold that the evidence of seventeen witnesses would capture the election pattern in 260 wards and 2,874 polling booths scattered in various part of Enugu State of Nigeria and manned by different people.

The I aw is that it is mandatory on a petitioner who asserts before the lower Tribunal that there were no voting materials, no INEC Officials to supervise the voting and that no voting in fact took place in most of the polling booths in Enugu State must prove so by calling at least a registered voter from each of the 2,847 polling booths to show that there was no voting. Indeed the burden on the petitioner is very weighty but that was what the law place on him.

In the appeal at hand, it is crystal clear that the trial Tribunal did not apply the principle of law enunciated in Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra) & Onoyon V. Egari (supra) in coming to the conclusion that less than 5% of the State had electoral materials and that voting did not take place in Enugu State. Accordingly Issue NO.2 is resolved in favour of the 2nd set of appellants against the respondent

Issue NO.3:

Whether the compliance or non-compliance with Section 179(2) of the Constitution of Federal Republic of Nigeria 1999 was pleaded in evidence and or an issue at the trial to warrant the Tribunal to make a finding on it.

On this issue, learned counsel for the 2nd set of appellants submitted that the Honorable Tribunal was wrong in holding that the respondents at the lower Tribunal did not comply with the provisions of Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999 when it was not made an issue and in the face f the presumption of regularity of results declared by INEC.

Learned counsel referred to Ezeazodosiako V. Okeke (2005)16 NWLR (Pt.952)612; Onye V. Kema (1999)4 NWLR (Pt.598)198; Buhari V. Obasanjo (2005)13 NWLR (Pt.941)1.

Learned counsel urged us to hold that the petitioners failed to raise this issue timeously and or failed to rebut the presumption preserved by law and the lower Tribunal was in error to reach a finding in favour of the petitioners on this score since the petitioners have not rebutted the presumption regularity and correctness by adducing credible and legally acceptable evidence.

In his response on this issue, learned counsel for the 2nd set of respondents submitted that the contention that the burden of proof of compliance with Section 179(2) of the 1999 Constitution does not lie on the appellants is misconceived. That it is an elementary principle of law that it is incumbent upon the appellants to show the trial Tribunal how the 2nd respondent was validly returned at the purported election. This responsibility was discharged neither by the appellants or the 2nd respondent nor through any of their witness. Further learned counsel submitted that the learned trial Judges in their decision did not erroneously discountenance the existence of the presumption of official acts of the appellants under Section 150(1) of the Evidence Act. That Section 150(1) of the Evidence Act cannot be invoked to impeach or whittle down the mandatory provision of Section 179(2) of the 1999 Constitution – the Constitution is the supreme, organic or fundamental law.

Learned counsel urged the court to declare that Section 150(1) of the Evidence Act is inconsistent with Section 179(2) of the 1999 Constitution therefore, null, void and of no legal effect to the extent of its inconsistency. Further learned counsel submitted that the case of Buhari V. Obasanjo & 264 Ors (2005) All FWLR is inapplicable to the circumstance of this appeal. Learned counsel referred to Mohammed V. Mohammed (supra); Fasakin Foods V. Sosanya (2006)7 MJSC 48; A-G Abia, Delta & Lagos V. A-G Federation (2006)9 MJSC 1. Learned counsel finally urged us to discountenance the argument made by the appellants and hold that the learned trial Judges directed themselves properly on the mandatory provisions of Section 179(2) of the 1999 Constitution.

This issue has been dealt with at great length in determining Issue -No.1 in the consolidated appeal. It suffices to hold that Section 179(2) of the 1999 Constitution does not shift the general burden of proof from the petitioner to the respondent in an election petition.

It is crystal clear that the provisions of Section 179(2) of the Constitution which the learned trial Judges were considering at that point in their judgment does not either directly or either by visible or reasonable implication, obviate the existing presumptions of regularity and correctness of a result declared by INEC nor does it place any onus on the respondent/appellant whose election and return is being challenged having thus wrongly placed the onus of proof on the 1st respondent/appellant. The learned trial Judges wrongly demanded production of evidence which production they again wrongly held that “the respondents have failed to do.”

This fundamental error of the trial Tribunal in determining who had the primary or general onus of proof and in this appeal placing it on the petitioner now appellant has clearly affected the final decision of the trial Tribunal and same is perverse.

Accordingly, Issue NO.3 is resolved in favour of the 2nd set of appellants and against the respondents.

Learned counsel for the 2nd set of respondent filed respondent’s Notice of Contention dated and filed on 20th February 2008 – the Notice titled –

“Intention to contend that the judgment should be affirmed on other grounds including those relied by the court below.”

In this consolidated appeal, counsel to the 1st set of respondent filed a similar Notice which in all respect and word by word similar to the one filed by counsel to 2nd set of respondents.

In this judgment I have given full consideration to the earlier respondent’s Notice of Contention and my holding is that:-

“Earlier in this judgment all the thirteen issues formulated by the appellant have been resolve in favour of the appellant and some of the issues especially Issue NO.12 on fair hearing fundamentally affects the judgment of the lower Tribunal as it vitiate it in its entirety; therefore the consideration and determination of the issues canvassed in the respondent’s Notice of Contention is a futile or academic exercise as the judgment sought to be affirmed on other grounds is vitiated.”

The foregoing applies to the Respondent’s Notice of Contention filed in this appeal under consideration. Accordingly the respondent’s Notice of Contention dated and filed on 20th February 2008 is discountenanced.

In conclusion, having resolved all the three issues formulated in this appeal in favour of the 2nd set of appellants, this appeal is meritorious, and it succeeds and is hereby allowed. The judgment of the lower Tribunal delivered on the 18th day of January 2008 in Petition No. NAGL/EPT/EN/GOV/35/2007 which nullified the election of the 1st set of appellant as Governor of Enugu State is hereby set aside in its place the petition is hereby dismissed.

The 2nd set of appellants are entitled to costs – accordingly a .costs of =N=50,000.00 (fifty thousand Naira) is awarded to the 2nd set of appellants against the 2nd set of respondents.

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Other Citations: (2008)LCN/2880(CA)