Hon. Godwin Udo King V. Independent National Electoral Commission (INEC) & Ors (2008)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal from the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting in Uyo, delivered in Petition No. EPT/AKS/05/07 on 26/10/07 wherein the petition of the appellant was dismissed.

This appeal emanated from the election conducted by the 1st respondent into the Akwa Ibom State House of Assembly for Ikot Abasi/Eastern Obolo State Constituency on 14/4/07. The appellant was the candidate of the Action Congress (AC) while the 8th respondent was the flag bearer of the Peoples Democratic Party (PDP), the 6th respondent. Sequel to some disturbances in Eastern Obolo Local Government Area, the election there was cancelled and rescheduled for 28/4/07. On the other hand the election in Ikot Abasi Local Government Area was successfully conducted but the result was withheld pending the conclusion of the bye-election for Eastern Obolo Local Government Area.

On the 28/4/07, the rescheduled election was successfully conducted and the 8th respondent, Hon. Dr. Charles Mbong was declared winner by the 1st respondent, having scored the highest number of votes cast thereat.

Dissatisfied with the result of the election, the appellant, filed petition No. EPT/AK/05/07 before the Tribunal sitting in Uyo. The grounds upon which the petition was brought are set out thus:

“1. Your petitioner was validly nominated to contest the election under the platform of the ACTION CONGRESS party into the Ikot Abasi/Eastern Obolo Constituency but was unlawfully excluded from the election.

2. The return of the 8th respondent by the 1st to 8th respondents was unlawful and not in compliance with the Electoral Act. The 8th respondent was entirely and validly returned nor elected in the election, the subject of this petition.
3. The election was not free and fair.
4. The election was marred by violence and was massively rigged.”

The reliefs sought by the appellant at the Tribunal are as follows:

“1. A declaration that the 8th respondent was not a candidate at the said election and that the 7th respondent was rendered incompetent by the Electoral Act, 2006.

2. An order that the eligible candidates for the 14th April, 2007 election or any election held into the State Assembly in the Ikot-Abasi/Eastern Obolo State Constituency are Hon. Godwin Udo King of the Action Congress Party (AC), Mr. Maxwell Nsifon of the All Progressive Grand Alliance, APGA, Mr. Ignatius Sylvester of the (NDP) and Mr. Edwin A. Nta of the Democratic Peoples Party (DPP) and no other.
3. An order voiding the declaration and return of the 8th respondent as winner of the Ikot Abasi/Eastern Obolo Constituency into the State House of Assembly in Akwa Ibom State.
4. An ORDER restraining the 1st to 5th respondents from recognizing the 8th respondent as winner of the Ikot Abasi/Eastern Obolo Constituency into the State House of Assembly Election in Akwa Ibom State.
5. An ORDER restraining the 1st to 5th respondents from recognizing the 8th respondent as duly elected and the 8th from parading himself as the duly elected candidate thereof during the pendency of this case.
6. An Order declaring the petitioner as duly elected and returned as member of Akwa Ibom State House of Assembly representing the Ikot Abasi/Eastern Obolo as an unopposed pursuant to 7th and 8th respondents’ incapacity.

OR ALTERNATIVELY

An ORDER those fresh Polls/Elections is held in the Ikot Abasi/Eastern Obolo Constituency of Akwa Ibom State.”

The 1st to 5th respondents filed a joint reply to the petition while the 6th-8th respondents also did the same.

At the hearing of the petition, the appellant, as petitioner, testified for himself and called 7 other witnesses. The 1st – 5th respondents called two witnesses. Eleven (11) witnesses, including the 8th respondent, testified for the 6th and 8th respondents’ case. Thereafter the parties filed and exchanged their written addresses at the end of the trial. The Tribunal in a considered judgment dismissed the petition. Unhappy with the judgment of the Tribunal, the appellant appealed to this court on 30/10/07 on 5 grounds subscribed in his notice and grounds of appeal. From the 5 grounds of appeal, the appellant formulated 9 issues for determination in his brief of argument dated 28/11/07 and filed on 21/12/07 and they are:

“1. Whether or not the evidence before the lower tribunal discloses that the petitioner was notified about the bye-election of Eastern Obolo Local Government Area on 28/4/2007.

2. Whether or not the results of the election were not substantially affected by the proven cases of irregularity or non-compliance with the Electoral Act, 2006.
3. Whether or not the non-announcement of the Ikot Abasi Local Government Area election results after collation until two weeks thereafter at Independent National Electoral Commission designated places is not a substantial non-compliance that affected the results of the election.
4. Whether or not the disallowance of the petitioner’s agent from signing and counter signing the results of the election was not a substantial non-compliance sufficient to nullify the results of the election.
5. Whether or not the respondents discharged the onus shifted to them by leading credible evidence in defence thereof on the balance of probabilities.
6. Whether or not the lower tribunal lacks the jurisdiction to entertain and adjudicate upon issues related to substitution of a candidate under the Electoral Act, 2006.
7. Whether or not, the order striking out the name of the 7th and 9th respondents who did not deem it fit to defend the action, in the judgment of the lower tribunal is not so done in error.
8. Whether or not proper probative values where attached to the testimonies of the witnesses in the course of the judgment.
9. Whether or not the refusal of the lower tribunal to admit the official Newspaper (viz the Pioneer Newspaper) or INEC in which the name of the 8th respondent was not inserted as a candidate on the platform (sic) of Peoples Democratic Party was not done in error.”

The 1st to the 5th respondents in their joint brief of argument dated and filed on 4/12/08 distilled 2 issues for determination and they are as follows:

“(a) Whether there was substantial non-compliance with Electoral Act, 2006 which substantially affected the results of the election in Ikot Abasi/Eastern Obolo Federal Constituency.

(b) Whether the 8th respondent was competent candidate in the elections.”

The 6th and 8th respondents distilled 3 issues for determination in their brief dated 11/1/08 and filed on 17/1/08. The three issues are:

“1. Whether with regard to the state of the pleadings and evidence, the appellant could be said to have discharged the burden of proof cast on him as petitioner in the lower court.

2. Whether the loser Tribunal was right in striking out the names of the 7th and 9th respondents from the petition; and
3. Whether it was proper in the circumstances for the lower tribunal to dismiss the petition.”

Upon being served with the 1st – 5th and 6th – 8th respondents’ briefs, the appellant filed a reply brief undated but filed on 3/6/08.

Learned counsel for the appellant, Mr. D. W. Wuku, submitted under Issue NO.1, that the 1st – 5th respondents ordered and executed a bye election in Eastern Obolo Local Government Area without notifying the petitioner and announced a result on the 29/4/07. Counsel referred to Exhibits R1, a Public Notice of election and Exhibit R2, the Attendance List of a meeting and submitted they were made by the 1st – 5th respondents who were interested persons and that the exhibits were made in contemplation of an action. Therefore, by virtue of sections 91(3) and 92(1) of the Evidence Act, the Tribunal ought not to attach any weight to Exhibits R1 and R2. He relied on E. I. Building Co. Ltd. V. Adebayo (2003) 13 NWLR (Pt. 836) 158 at 195 and High Grade Maritime Service Ltd. Vs. F. B. N. Ltd. (1991) 1 NWLR (Pt. 167).

On Issue NO.2, it was contended for the appellant that the 1st – 5th respondents did not announce the results of the election at 1st respondent’s designated places and this amounted to a fatal error sufficient to annul the results of the election. Counsel then submitted that having regard to sections 27, 28 and 75 of the Electoral Act, the Tribunal erred when they held that there was no irregularity or non-compliance of such magnitude that did affect or could have affected the result of the election.

It was contended that the signature of RW1 in Exhibit R3 is not the same with the one in her statement on oath. Counsel relied on Omoniyi V. Sodeinde (2003) 13 NWLR (Pt. 836) 53 at 64 – 65; Obijuru V. Ozims (1985) 2 NWLR (Pt. 6) 167; Akalonu V. Omokaro (2003) 8 NWLR (Pt. 821) 190 at 205 – 206 and submitted that the Tribunal ought to have compared the signature of RW1 in open court and come to a determination. On the issue of non-compliance the appellant contended that they were many and widespread and sufficient to nullify the results of the election. Counsel referred to Exhibits R5 – R58 and pointed out that the irregularities in the result led to the disenfranchisement of voters numbering 7,386. He also pointed out that the total registered voters are 41,962, PDP scored 34,576 votes, and the number of disenfranchised votes is 7,386. He argued that if the score of PDP, 34,576 is added to the disenfranchised votes of 7,386, they will amount to 41,962. He submitted that if that is the case the votes of AC, APGA, NDP, DPP and ANPP which is 485 votes are surplus votes. Counsel relying on Na Gambo v. INEC (1993) NWLR (Pt. 267) 94; Izuogu V. Udeawa (1999) 6 NWLR (Pt. 608) 582 and Nwole V. Iwuagwu (2004) 15 NWLR (Pt. 895) 61, submitted that once an election tribunal finds that there is non-compliance with the law in respect of votes cast in such areas, such votes should be cancelled.

Issue NO.3 has been subsumed under Issue NO.2.

On Issue NO.4, the appellant contended that the disallowance of the petitioner’s polling agents from either signing or counter-signing the results offends section 75 of the Electoral Act, 2006, and the Tribunal was wrong to dismiss the petition.

On Issue NO.5, learned counsel for the appellant submitted that the respondents did not discharge the onus shifted on them by leading credible evidence in their defence that there was an election. He submitted that a party who alleges that an election took place in a particular ward or constituency is required in order to prove that allegation to call at least two persons who voted at any of the polling units in the two wards whose registration cards would show the stamp of the Presiding Officer and the date confirming that he had voted at the election. Counsel referred to INEC v. Ray (2004) 14 NWLR (Pt. 892) 92 and Remi v. Sunday (1999) 8 NWLR (Pt. 613) 92. Relying on Badam V. Adam (2007) 3 NWLR (Pt. 994) 303, counsel concluded that where a party’s agent did not sign and counter sign the result sheets, the result of the election will be invalidated.

On Issue NO.6, the appellant contended that the Tribunal was wrong to decline jurisdiction to enquire as to who between two persons should be the proper candidate of a political party pursuant to the provision of section 145 of the Electoral Act. Counsel submitted that the decision taken by the 1st respondent in the substitution of a candidate can be challenged in court for interpretation of section 34(1) and (2). He relied on Rimi V. INEC (2005) 6 NWLR (Pt. 920) 56; Jang V. INEC (2004) 12 NWLR (Pt. 886) 46 and Onuoha V. Okafor (1983) 2 SCNLR 244.

On Issue NO.7, learned counsel submitted that the tribunal was wrong to have declared that the 9th respondent was not a necessary party to the election. Relying on Buhari V. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 524 and Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 423 at 505 – 506. Counsel submitted that the words any other person who took part in the conduct of an election ought to be such a person who has been given some responsibility to take part in the conduct of the election by the 1st respondent, therefore, the 9th respondent is a necessary party and ought not to be struck out by the tribunal.

Learned counsel submitted further that the tribunal was in error when it suo motu struck out the 7th and 9th respondents who did not deem it fit to defend the action. He relied on Carlen Nig. Ltd. V. Unijos (1994) 1 NWLR (Pt. 323) 631 and Ekpenyong V. Nyong (1975) 2 SC 71.

On Issue NO.8, it is the appellant’s contention that the tribunal did not ascribe proper probative value to the testimonies of the witnesses in the petition and also that the tribunal erred in law when in the judgment, they labeled the petitioner’s witnesses’ testimonies as hearsay evidence. Learned counsel for the appellant also submitted that the tribunal misinterpreted and misconstrued the phrase “abated the incident in our area” in the context in which it was used. He referred to page 447 of the record, paragraphs 4, 5, 7 and 8 of the petition.

On Issue NO.9, the appellant contended that the refusal of the lower tribunal to admit the official newspaper i.e., the Pioneer Newspaper of the 1st respondent, in which the name of the 8th respondent was not inserted as a candidate on the platform of PDP was not done in error, rather it was the name of the 7th respondent that was listed and published as the candidate of PDP. Counsel pointed out that the appellant’s relief in the petition seeks the court declaration that the 8th respondent was not a candidate thereof and he pleaded also that media reports would be relied upon at the trial of the case. Moreover, the facts relating to the media reports on the candidature of the 8th respondent were pleaded and the reliefs’ sought therein. Counsel referred to Abuul V. Bensu (2003) 16 NWLR (Pt. 843) 59 at 80; (2003) 16 NWLR (Pt. 843) 59 at 80; Thanni V. Saibu (1977) 2 SC 89 and Okoke V. Oruh (1999) 6 NWLR (Pt. 606) 175 and submitted that where a document is not pleaded, but upon the nature of the claims, it may constitute evidence by which material facts are to be proved, such document will be admitted in evidence not minding the fact that it was not pleaded.

The 1st – 5th respondents’ counsel, Mr. Oyesanya, submitted under their Issue No. 1 that the grounds complaining about non-notification of the bye election allegation of irregularity, non-announcement of results until after two weeks, allegations of not allowing party agents to sign election result are all grounds covered by the first issue for determination, i.e., whether or not there was non-compliance with the Electoral Act, 2006, substantial enough to nullify the result of the election.

On the complaint of non-notification of the date of the bye-election, counsel submitted that the 1st – 5th respondents pleaded in their reply to the petition that the appellant was duly notified and in support they pleaded and tendered the public notice issued to the general public 15 days before the election and the meeting held before the bye-election. Having done that the onus shifted back to the appellant and it was necessary for the appellant to file a Reply to the respondents’ reply in order to fully join issues on the matter.

Counsel pointed out that appellant’s purported reply was struck out by the tribunal on 4/8/07 for incompetence at pages 349 – 350 of the record and the appellant has not appealed against that decision. Thus, the appellant, in law, has not denied that he was not given due and proper notice of the bye election.

Counsel further submitted that the respondents tendered the Public Notice and it was admitted as Exhibit R1, and the Minutes of the meeting as Exhibit R2.

Counsel pointed out that the name of one Comrade David Ekanem, the Chairman of Action Congress, which is the political party of the appellant, is in Exhibit R2, and the appellant also admitted knowing the said Comrade David Ekanem as his party’s Chairman. He concluded that the appellant not having filed a reply to the 1st – 5th respondents’ reply which raised new facts, the appellant must be deemed to have admitted the 1st – 5th respondents’ reply which was not specifically denied or traversed. He relied on Oshodi V. Eyifunmi (2000) 7 SC (Pt. 11) 145; Akeredolu V. Akinyemi (1989) 3 NWLR (Pt. 108) 164 and British Airways V. Makanjuola (1993) 8 NWLR (Pt. 311) 276.

On the complaint of non-announcement of the result until after two weeks of the first election on 14/4/07 and that his party’s agents were not allowed to sign the result sheets as required by law, counsel submitted that all the evidence proffered by the appellant under irregularities were all tainted by the defect of hearsay because all the witnesses including the appellant himself admitted under cross-examination that all the allegations they made as to the irregularities in the election were reported to them. He referred to the finding of the tribunal at pages 450 – 451 of the record and Agoda V. Enamuotor (1999) 8 NWLR (Pt. 615) 407.

On the point that the results were announced late, counsel submitted that the 1st – 5th respondents complied fully with section 27 of the Electoral Act.

On the complaint that the appellant’s Polling Agents were not allowed to sign the results sheets, counsel pointed out that the evidence at the trial shows that the appellant’s agents were mostly unavailable at the Polling Stations. Besides, none of the agents except PW1 was called to testify that he was prevented from signing the election results. Counsel also submitted that though section 76 of the Electoral Act, 2006 stipulates that election must be counter-signed by polling agents, their failure or refusal to sign would not invalidate the election. See Ajadi V. Ajibola (2004) 16 NWLR (Pt. 891) 1.

Moreover, PW1 did not say who prevented him from signing the result of the election.

On the signature of PW1, counsel pointed that RW1 never admitted that her signature on the collated result, Exhibit R3 is different from the one on statement on oath; it is therefore unreasonable for the appellant to suggest that the result for Ikot Abasi Government should be nullified on this score. On the allegation of gross disenfranchisement, counsel submitted that it is the law that a petitioner seeking the nullification of an election on this ground must show that if the number of ballot papers withheld were all released, all the voters deprived of voting would have voted for him as was held in Ebebe V. Ezenduka (1998) 7 NWLR (Pt. 556) 74. The appellant failed to prove this at the tribunal. Counsel concluded on this issue that the appellant has not linked the 8th respondent with any of the alleged electoral offences; therefore, his complaint must fail on this account. He relied on Oyegun V. Igbinedion (1992) 2 NWLR (Pt. 226) 747 and Falae V. Obasanjo (No.2) (1999) 4 NWLR (Pt. 599) 476 on this point.

On the 1st – 5th respondents’ Issue NO.2, which relates to the complaint that the 8th respondent was a competent candidate at the election, counsel submitted that the tribunal has no jurisdiction to inquire as to who between two persons should be the proper candidate of a political party. He is of the view that the appellant is in fact a busy body and a meddlesome interloper who wants to choose whom he wants to contest with.

On the issue of the Tribunal striking out the names of the 7th respondent and 9th respondents, it is the respondents’ contention that the appellant has not shown how the striking out their names has affected the merit of his case and as the tribunal rightly observed, the appellant sought no relief at all against the 7th and 9th respondents. He concluded that the tribunal is right to hold that the 7th and 9th respondents are not necessary parties to the proceedings.

In respect of the 6th and 8th respondents, their counsel, Mr. Akpan, made very brilliant submissions which are similar to and identical with those submitted by the 1st – 5th respondents, so it is unnecessary to repeat or replicate them as this will be unnecessary prolix, but I shall take his submissions into consideration in this judgment.

I must point out that the 6th and 8th respondents also contended in their Issue NO.3, that the 3 issues narrowed down for determination at the conclusion of the pre-hearing conference at the Election Tribunal, the appellant, who was the petitioner at the tribunal, was unable to prove any. The evidence offered by the appellant was unreliable and so tainted that no court of law or tribunal would have acted on it. Whereas the respondents on the other hand placed concrete evidence before the tribunal. The tribunal was therefore right to dismiss the petition and uphold the return of the 8th respondent.

I have examined the appellant’s reply to the 1st – 5th respondents’ brief and the 6th and 8th respondents’ brief. The reply in essence is only a recapitulation of his arguments in the appellant’s brief of argument and perhaps, some embellishment of the issues already canvassed in the brief.The function of a reply brief is to address new issues, particularly on points of law that the appellant did not envisage and treat in the appellant’s brief. See Ogboru V. Ibori (2005) 13 NWLR (Pt. 942) 319 at 380 and Ojo V. Okitipupa Oil Palm Plc. (2001) 9 NWLR (Pt. 719) 679.

A reply brief should be limited to answering only new points arising from the respondent’s brief and should not be used to proffer further arguments to those already made and contained in the appellant’s brief. This is exactly what the appellant has done in the instant appeal. In the circumstances, I shall discountenance the argument in the reply briefs filed by the appellant. See further Isi V. Eno (1992) 2 NWLR (Pt. 590) 204; Onuaguluchi V. Ndu (2000) 11 NWLR (Pt. 679) 519; ACB Ltd. V. Apugo (1995) 6 NWLR (Pt. 399) 65 and Cameroon Airlines V. Otutuizu (2005) 9 NWLR (Pt. 929) 212.

I have carefully examined and considered the issues for determination formulated by the parties in this appeal. The nine issues formulated by the appellant are unduly prolix and incompetent. The appellant having filed only 5 grounds of appeal is not permitted to formulate more issues that are in excess or more than the grounds of appeal filed. While an issue for determination in an appeal could be properly raised from more than one ground of appeal, it is inappropriate to raise more issues for determination than the number of grounds of appeal filed. In the instant case the appellant erred when he formulated more issues for determination than the grounds of appeal filed. See Nsgbeotu V. Vrissibe (2005) 10 NWLR (Pt. 932) 1 and Bossa V. Julius Berger Plc. (2005) 15 NWLR (Pt. 948) 407.

However, notwithstanding the proliferation of the issues for determination by the appellant, the issues so formulated are essentially and in reality just two as was done by the 1st – 5th respondents in their respondents’ brief. The three issues formulated by the 6th – 8th respondents are in consonance with the issues formulated by the 1st to 5th respondents. I, therefore, adopt the two issues formulated by the 1st – 5th respondents for the determination of the appeal.

The first issue for consideration is that of non-notification of the bye elections. From the evidence adduced at the trial tribunal, it appears that the allegation of non-notification of the bye-election is unfounded and without basis both in fact and in law. On the state of the pleadings, it is clear that the 1st – 5th respondents pleaded in their reply to the petition that the appellant was duly notified of the date of the bye-election. They pleaded that a meeting was held in which all the agents of the parties were present, they exhibited and tendered the minutes by the said meeting which showed the chairman of the Action Congress, the appellant’s party as being present. See paragraph 7(g) of the respondents’ reply at page 191 of the record. The 1st to 5th respondents duly tendered the Public Notice of the day of the bye-election which was admitted as Exhibit R1, and the Minutes of the meeting stated above, which was admitted as Exhibit R2. In the face of Exhibits R1 and R2, the allegation of the appellant is untenable.

Moreover, the appellant did not file any reply to the 1st – 5th respondents’ pleaded facts in paragraphs 7(c) and (f) of their reply. Therefore, in law the appellant has not denied the act that he was given due and proper notice of the bye-election. See Oshodi V. Ejifunmi (supra); Akeredolu V. Akinyemi (supra) and British Airways V. Makanjuola (supra).

Furthermore, the tribunal satisfactorily dealt with this issue very well in its judgment at pages 454 – 455 of the record where it held:

“Once more, the evidence before the Tribunal does not support the complaint that the petitioner was not informed about the conducting of bye-elections at Eastern Obolo on 28/4/07. The parties all agree that the elections in, Eastern Obolo were marred by violence. The 1st – 5th respondents state that their response to this situation was to declare the elections for the Constituency inconclusive and to conduct a bye-election in Eastern Obolo. RW1 and RW2 both testified that the information concerning the bye-election was publicized. Exhibit R1 was the Public Notice on the bye-election. Exhibit R2 was an attendance record of a meeting of the Resident Electoral commissioner with Chairman/Representatives of political parties. One person present was one David Ekanem, who the petitioner, PW8, admitted under cross-examination, was his party chairman. Information concerning the bye-election was thus made public and indeed the petitioner was voted for at the said bye election. There is therefore nothing to show that the petitioner was unlawfully excluded from either the election of 14/4/07 conducted at Ikot Abasi LGA or the bye-election conducted at Eastern Obolo LGA on 28/4/07 by the 1st – 5th respondents. Issue No. 2 is therefore resolved against the petitioner.”

I have also considered the issue whether Exhibits R1 and R2 were made by persons interested in contemplation of the petition contrary to section 91(3) of the Evidence Act. The allegation of the appellant is untenable and the submission of the appellant’s counsel on the point is of no moment and it has no legs to stand. Exhibit R1, the Public Notice was issued on 15/4/07. Exhibit R2, the Attendance Register of the meeting of the Resident Electoral Commissioner with Chairmen and or representatives of political parties was held on 27/4/07. The Exhibits R1 and R2 were all made before the bye elections.

This was before the appellant even thought of filing an election petition. Unless the appellant wants this court to believe that he had premonition of the result of the election, his allegation is baseless and meaningless and it is not within the contemplation of section 91(3) of the Evidence Act.

It is also instructive to note that the appellant who was present at the tribunal did not even object to the admissibility of Exhibits R1 and R2, when they were tendered by RW1, Eme Bassey Eyo, at page 382 – 383 of the record. So what is appellant complaining about? The current and correct state of the law was robustly settled in Ezomo V. NNB Plc. (2006) 14 NWLR (Pt. 1000) 442 at 651 – 658, where it was held that:

“It is a cardinal rule of evidence and of practice in civil and criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Thus, where objection has not been raised by the opposing party to the reception of documentary evidence, the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission, except for documents which by law are inadmissible (consent of the parties notwithstanding) for failing to satisfy some conditions or to meet certain criteria. Such exceptions include:

(a) Unregistered instrument required by law to be registered;

(b) Unsigned deed of grant or copy thereof;

(c) Unstamped instrument or document required to be stamped unless it may legally be stamped after execution, and duties and penalties are paid.

In the instant case, Exhibit “K” did not fall into any of the exceptions, and by consent of all the counsel to the parties the document was admitted.”

Moreover, the fact that the appellant took part in the said bye-election is an eloquent testimony that he had notice of the election and voters, notwithstanding their numbers voted for him. I see no merit in this issue at all.

In respect of the complaint as to non-announcement of the results until after two weeks of the first election of 14/4/07, it is my considered view that it is baseless and unfounded. There is clear and uncontroverted evidence that the election in Ikot Abasi held on 14/4/07 and it was peaceful. The election in Eastern Obolo was not peaceful so it was cancelled. The bye-election was held on 28/4/07.

It should be noted that it is mischievous for the appellant to misrepresent the factual situation in this case. In order to mislead the unsuspecting, and perhaps the gullible, the appellant insinuated that Ikot Abasi is a different Local Government from Eastern Obolo, whereas in reality the two form the State House of Assembly Constituency which the parties contested for.

Now, by the clear and unambiguous provisions of section 27(1) of the Electoral Act, 2006, the 1st respondent could postpone an election where there is threat to the peace. Section 27(3) stipulates that no returns shall be made by the 1st respondent until the holding of the new elections in the areas affected. This is exactly what the 1st respondent has done in the instant appeal. I see no room for the complaint of the appellant in this respect. The appellant also has not shown how the non-announcement or delay of the announcement affected the results of the elections, not to talk of whether it substantially affected the results. On the complaint that the appellant’s polling agents were not allowed to sign the result sheets, it is my finding that only PW1 was called to testify on this issue. So at best his evidence is confined to the polling unit where he acted as agent, which is, Methodist Central School, Ete in Ukpum Ete. That may be so, but PW1 did not testify as to who prevented him from signing the results. The PW1’s evidence is unreliable. Quite apart from the evidence of PW1, the appellant did not lead any evidence at the lower tribunal in proof of the allegation that the appellant’s polling agents were prevented from signing any result. Section 75 of the Electoral Act provides for countersigning of election results by polling agents where available, the refusal of or neglect of the polling agents to sign will not invalidate the election. See Ajadi V. Ajibola (supra). Moreover, the appellant did not call any other witness to substantiate this allegation.

The burden of proof is, by virtue of section 137 of the Evidence act, on the party who asserts. He who asserts must prove and the standard of proof required is on a preponderance of evidence and balance of probabilities. See Dauda V. NNPC (1998) 2 NWLR (Pt. 538); Itauma V. Akpe-Ima (2000) 7 SC (Pt.11) 24 and Ajadi V. Ajibola (supra).

There is a serious twist in the evidence of PW1 which render his evidence unreliable. At page 363 of the record, PW1 testified that he could identify the election result of his unit. Query, I pray, is it possible to identify a result sheet he has never seen? If PW1 could identify the result sheet then he must have seen it before it was shown to him. Then why did he not sign it? Obviously, the evidence of PW1 must be taken with a pinch of salt and it is devoid of any credibility.

On the point made that RW1’s signature on her written statement on oath is not the same as her signature on Exhibit R3, RW1 in her evidence at page 383 of the record never admitted that her signature in Exhibit R3 is different from her signature on her written statement on oath. Thus, the submission of learned counsel for the appellant is misleading and misconceived. The two signatures under close scrutiny clearly reveal that they are the same.

On the issue of disenfranchisement, it is now obvious that the appellant was merely trying to raise a storm in a tea cup or a tsunami in a very shallow well. This issue was adequately dealt with by the tribunal at pages 452 – 453 of the record, where it held thus:

“A close examination of some of the result sheets for Ikot Abasi Local Government Area, Exhibits R8, R13 – R22, R30 – R52, would reveal that ballot papers supplied in some units were less than the number of registered voters. It must be quickly pointed out that this was not the case set out by the petitioner in his petition. However, even in the event that this was also his complaint, the fundamental question is whether these irregularities were substantial enough to have affected the result of the election or whether they did in fact affect the result in actual fact. It is only an answer in the affirmative that can weigh in favour of the petitioner. But with a score of 34,576 votes declared in favour of the 8th respondent and 445 votes declared in favour of the petitioner and having regard to the minimal difference in number between the ballot papers supplied and number of registered voters listed, the result of the election would not be substantially affected by this irregularity. The petitioner has therefore not proved that there was any irregularity or noncompliance of such magnitude that did affect or could have affected the result of the election. Issue NO.1 is thus resolved against the petitioner.’

Where in an election petition, there are allegations of electoral offences and corrupt practices, the petitioner must prove beyond reasonable doubt that:

“(a) The respondent personally committed the corrupt act or aided or abetted, counseled or procured the commission of the alleged act of corrupt practice.

(b) Where the alleged act was committed through an agent, that the agent was authorized to act in that capacity as granted general authority.

(c) The corrupt practice or undue influence affected the outcome of the election and how it affected it.

(d) But for the corrupt practice, the petitioner would have won the election.”

See Haruna V. Modibbo (2004) 16 NWLR (Pt. 900) 487; Hasidu V. Goje (2003) 15 NWLR (Pt. 843) 352 and Falae V. Obasanjo (supra).

The appellant was unable to establish any of the allegations before the tribunal. The tribunal at pages 450 – 451 of the record, quite rightly in my view, settled the issue when it held that:

“In summary, their evidence is as follows: PW1, the AC agent in Ikot Abasi did not state that election materials were not supplied at his Unit. In fact under cross-examination, he admitted that the election did hold. PW2, PW3 and PW6 gave no evidence of personal experience of the acts complained of by the petitioner but generally testified of what they heard. PW4 testified about ANPP supporters which had nothing to do with the issue herein, the evidence of PW5 was in respect of the violence in Eastern Obolo, which is not in issue, since the parties all agree that the elections of 14/4/07 at Eastern Obolo L.G.A. were marred by acts of violence. PW7 testifying on Ikpa Nnungasang Ward 2 of Ikot Abasi stated in paragraph (2) of his deposition as follows:

“That at bout 1.00 pm the election materials arrived my ward and moved to respective unit”.

That is to say, election materials were supplied. He has testified that gunmen attacked all the Units in Wards 1 and 2 but under cross-examination admitted he was in his own unit and only got to hear about what happened in order (sic) units. PWB, the petitioner himself, admitted that the irregularities relating to the elections at Ikot Abasi set out in his statement on oath were related to him by his agents. In other words, he did not personally experience these irregularities since he gave no such evidence. The evidence on these irregularities is thus, at best, hearsay, and by virtue of section 77 of the Evidence Act cannot be acted upon. The observation must be made that the evidence adduced for the petitioner did not go into necessary and imperative details. The point must be clearly made that the tribunal is not at liberty to speculate or fill in any gaps by conjecture and indeed cannot do so. See Zakari Ahmed V. The State (1999) 7 NWLR (Pt. 612) 641 at 672, 679.

Exhibits RB, R13 – R22, R30 – R52, which are the results from Ikot Abasi Local Government Area, reveal that election materials did get there and that officials of the 1st respondent were present to conduct the elections. There is no evidence that the agents of the petitioner were actually prevented from signing any result.”

No doubt the appellant failed woefully and dismally to prove his allegation beyond reasonable doubt. Whereas the 1st – 5th, 6th and 8th respondents proffered credible evidence, through their respective witnesses. The appellant failed to link the 6th and 8th respondents with the alleged electoral offences; therefore, his complaint must fail.

The appellant complained that the election results were not announced at the 1st respondent’s designated places. I observed that the appellant did not adduce any evidence on this point. I, therefore, discountenance the allegation and the arguments on it.

Still on the results of the election, the appellant has not done much to establish or to prove that result announced by the 1st – 5th respondents is incorrect. There is a rebuttable presumption that the result of any election declared by the electoral body is correct and authentic. The onus is on the person who denies the correctness and authority to rebut the presumption. Where such a denial is based on allegations of crime, the rebuttal must be proved beyond reasonable doubt. See Nwobodo V. Onoh (1984) 1 SCNLR 11; Omoboriwo V. Ajasin (1984) 1 SCNLR 108; Hasidu V. Goje (supra) and Adun V. Osunde (2003) 16 NWLR (Pt. 847) 143 at 649. Whereas the appellant was unable to rebut the presumption in favour of the election result stipulated under section 114 of the Evidence Act, the 1st respondent adduced credible evidence in support of the results of the election announced. Also, the results tendered by the 6th and 8th respondents were not impugned in any way.

On the issue of the rejection of the Pioneer Newspaper, there is no evidence that it is the official newspaper of the 1st respondent. Secondly, the newspaper was not pleaded and it is not relevant to the subject matter heard by the tribunal, therefore, it is not admissible. See Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144 at 231 and Okonjo V. Njokanma (1999) 14 NWLR (Pt. 638) 250. The tribunal acted rightly in rejecting the Pioneer Newspaper.

In the circumstances, I resolve issue No. 1 against the appellant and in favour of the respondents.

This now brings me to Issue NO.2. The complaint here is that the respondent was not a competent candidate at the election. To begin with the Election Petition Tribunal has no jurisdiction to inquire as to who between two persons should be the proper candidate of a political party. That is a pre-election matter which should be heard and determined at the courts before the election. The tribunal is concerned with election matters only. See the provisions of sections 32 – 37 and 145 of the Electoral Act.

There is a world of difference between “nomination” and “qualification” of a candidate to contest an election. Nomination is a preliminary issue which should be challenged at an earlier stage at the High Court and not after the election had been conducted unchallenged. See PDP V. Haruna (2004) 16 NWLR (Pt. 900) 597; Onifade V. Oyedemi (1999) 5 NWLR (Pt. 601) 54; NEC V. NRC (1993) 1 NWLR (Pt. 267) 128 -131 and Anazodo V. Audu (1999) 4 NWLR (Pt. 600) 549.

An election tribunal is only given exclusive power to hear election petitions, its power does not extend to conducting all trials in respect of elections and does not confer on it authority to handle preliminary issues or matters that take place before elections were held. See Jang V. Dariye (2003) 15 NWLR (Pt. 843) 436 at 460; Doukpolagha V. George (1992) 4 NWLR (Pt. 236) 444 and Enagi V. Inuwa (1992) 3 NWLR (Pt. 231) 548.

It is only the State High Court or Federal High Court, as the case may be, that has the jurisdiction to determine pre-election matters. See Ojo V. INEC (2008) 13 NWLR (Pt. 1105) 577.

I agree with learned counsel for the 1st – 5th respondents that the appellant is in the circumstances, a mere busy body and a meddlesome interloper, meddling in affairs that do not concern him. It is indeed absurd that the appellant wants to dictate to the 6th respondent whom they must present as their candidate for election when he is not even a member of the 6th respondent. If there is any anomaly in the manner the candidates were nominated by the 6th respondent, it is only those affected candidates and the 6th respondent who can have locus standi to challenge it or to complain but certainly not a total stranger to the 6th respondent whose interest is not involved or affected in any conceivable manner. The appellant cannot choose who he wants to contest with. If anyone is to complain it should have been the 7th respondent who was even made a party to the petition but chose not to defend same. The appellant is the proverbial sympathizer crying more than the bereaved. The present situation of the appellant is well captured in the case of Ukpo V. AOEDE (2001) FWLR (Pt. 777) 850 at 853, where this Court held thus:

“The most interesting aspect of this case is that it is not the PDP that is complaining that it did not sponsor that 1st respondent but rather the appellant who is a member of the AD, a different political party. It does not lie in his mouth to say that the 1st respondent who contested the election on the platform of PDP was not sponsored by PDP and therefore not duly elected and that he should be declared duly elected as he scored the majority of lawful votes.”

It is also relevant to refer to the finding of the tribunal at page 446 of the record where it held:

“Furthermore, the jurisdiction of the Election Petition Tribunal has been well spelt out in the Electoral Act, 2006.

The grounds upon which a petition may be presented certainly do not include an enquiry as to who, between two persons, should be the proper candidate of a political party. See Section 145 of the Act. A political party has the absolute right to choose, present and sponsor any candidate of their choice. The Tribunal or Court cannot make that decision for the political party. See Onuoha V. Okafor (1993) SCNLR 244.

It is therefore irrelevant that the 8th respondent admitted that a suit challenging his candidature filed by the 7th respondent at the Federal High Court is pending. It is not within the jurisdiction of this tribunal to enquire as to whether it was the 7th respondent who should have been the candidate of the 6th respondent in the election in issue. Rather, what is properly before the tribunal is the issue of the return of the 8th respondent as elected on the platform of the 6th respondent.”

The finding of the tribunal is unassailable. I resolve this issue against the appellant and in favour of the respondents.

I now come to the issue of striking out the names of the 7th – 9th respondents. After carefully perusing the petition of the appellant, at pages 1 – 7 of the record, I am compelled to ask, what is the case of the appellant against the 7th and 9th respondents? Appellant has not sought any relief at all against the 7th and 9th respondents. That means that the appellant had no cognizable or legal complaint against the 7th and 9th respondents envisaged under section 144(2) of the Electoral Act. See Buhari V. Yusuf (2002) 14 NWLR (Pt. 841) 446 and Uzodimma V. Udenwa & Ors. (2004) 1 NWLR (Pt. 654) 303 at 336.

Furthermore, the 7th respondent cannot by any stretch of the imagination be considered as a statutory respondent within the ambit of section 144(2) of the Electoral Act, 2006, because he was not involved in the conduct of the election. At best, he may have participated in the election process but certainly he did not take part in the conduct of the election.

More importantly, it is only persons who succeeded at the election complained of those involved in the conduct of the election that can be sued as respondent, definitely not the 7th respondent who did not even scale the nomination hurdle. See Buhari & Anor. V. Yusuf & Anor. 14 NSCQR 1114 at 1152. Thus, the tribunal was right to hold that the 7th and 9th respondents have not been shown to be necessary parties to the petition and accordingly struck out their names.

Lastly, the complain on the evaluation of the evidence of the parties to the petition before the tribunal, is unjustified and devoid of any substance.Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the trial court that saw, heard and assessed the witnesses during their testimonies. An appellate court will not interfere with the findings of fact by a trial tribunal or court, unless they are perverse, unreasonable or not supported by the evidence adduced before the tribunal or court.

The evidence of the appellant and his witnesses were largely hearsay. The appellant testified that the allegation of irregularities and non-compliance with the Electoral Act were based on the information given to him by his agents. That makes the evidence of the appellant hearsay and inadmissible.

He ought to have called those agents who saw the irregularities to testify. The appellant was quite unable to prove his case before the tribunal, whereas the respondents led credible and admissible evidence not only to prove that the elections held but also that the elections were free and fair. Once the findings of a trial court or tribunal are supported by evidence on record, an appellate court cannot interfere with it. In the circumstances, the decision of the tribunal is not perverse so this court will not interfere with it.

This appeal lacks merit and deserves to be dismissed. Accordingly, this appeal be and is hereby dismissed. The judgment and orders made by the Tribunal in petition No. EPT/AKS/05/07 delivered on 26/10/2007 be and is hereby affirmed.

Costs of N10,000.00 to the 1st-5th respondents and no to 6th & 8th respondents. Appeal dismissed.

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Other Citations: (2008)LCN/2998(CA)