Obiora Chukwuka V. Alor Nduka & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This appeal arose out of the judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal Anambra State sitting in Awka in petition No. EPT/AN/SAE/78/2007 delivered on the 18th January 2008. The petition is in respect of Onitsha South II Constituency election into the Anambra State House of Assembly conducted on the 14th of April 2007. The petitioner Nduka Alor contested the election under the platform of the All Progressive Grand Alliance (APGA). At the end of the election, the 1st Respondent Obiora Chukwuka of the People’s Democratic Party, (PDP) was declared the winner having been said to have scored the majority of votes cast at the election.
Aggrieved by the result declared by the Independent National Electoral Commission (INEC) the petitioner presented a petition on the 14th May 2007. The grounds of the petition were as follows-
(i) That the 1st Respondent’s election was invalid by reason of substantial non compliance with the provisions of the Electoral Act 2006.
(ii) That the 1st Respondent was not duly elected by a majority of lawful votes cast as there was no election.
The 1st Respondent filed an 11 paragraph Reply dated 11th July 2007 and filed on the 16th July 2007. The 2nd – 19th Respondents also filed an 11 paragraph Reply on the 27th July 2007. The Petitioners filed a Petitioner’s Reply to the Reply of the 2nd – 19th Respondents on the 4th August 2007. The matter proceeded to be heard with the salient complaints of the petitioner being –
(1) That there was no election on the 14th April 2007
(2) Non display of voters register in the wards before the election
(3) Failure to publish the names of the ad hoc staff of INEC by the 2nd Respondent before the election
(4)Non display of the location of the polling units in the Constituency before the election
(5)Failure to provide result sheets at the polling booths and Collation centres
(6) Late arrivals of electoral materials at the local Government headquarters and polling stations and without the voters register and result sheets
(7) That due to non provision of sensitive materials such as the voter’s register and result sheets, the aggrieved voters disrupted the election
(8) Failure to publish the results of or scores of the candidates.
At the trial, the Petitioner called eight witnesses; the 1st Respondent called seven witnesses while the 2nd – 19th Respondents called one witness.
At the end of the trial, written addresses were ordered by the Tribunal to be filed which the parties did. The Tribunal came to the following finding:
(1) That at the election of 14th April 2007 into the Onitsha South II Constituency non sensitive materials were distributed at the INEC office very late in the afternoon.
(2) That the materials distributed did not include sensitive materials such as forms EC 8A1 and EC 8B1, the result sheets for the record of votes cast and collation of results at the units and wards respectively.
(3) That by reason of INEC’s failure to make result sheets available at the units and wards, party agents and voters reacted by refusing to vote.
(4) That the non provision of the Result forms led to the disruption of the voting exercise
(5) That INEC ad hoc officials got to their various units very late on the day of the election
(6) That no election into the Onitsha South II Constituency took place on the 14th April 2007.
The Tribunal therefore held that the 1st Respondent Obiora Chukwuka was not validly elected and returned by the 2nd – 5th Respondents at the election of the 14th April 2007 into the Onitsha South II Constituency into the Anambra State House of Assembly on the ground of non compliance with the provisions of the Electoral Act 2006, and upon the foregoing, nullified the election into the Anambra State House of Assembly seat of Onitsha II Constituency conducted on the 14th April 2007.
The 1st Respondent Obiora Chukwuka being aggrieved by the judgment of the Election Tribunal has by a Notice of Appeal dated the 4th day of February 2008 and filed same day appealed against the said judgment. There are 11 Grounds of Appeal contained in the Notice of Appeal and the said Grounds of Appeal are reproduced hereunder –
IN THE COURT OF APPEAL
HOLDEN AT ENUGU
PETITION NO:EPT/AN/SAE/78/2007
BETWEEN:
OBIORA CHUKWUKA – 1ST RESPONDENT/APPELLANT
AND
- ALOR NDUKA
- INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
- THE RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE
- THE ELECTORAL OFFICER ONITSHA SOUTH L.G.A.
- THE RETURNING OFFICER ONITSHA SOUTH II CONSTITUENCY
- SUPERVISORY PRESIDING OFFICER WARD II ODOAKPU
- RETURNING OFFICER WARD I ODOAKPU
- SUPPERVISORY PRESIDING OFFICER WARD III ODOAKPU
- RETURNING OFFICER WARD II ODOAKPU – RESPONDENT/
- SUPERVISORY PRESIDING OFFICER WARD III ODOAKPA RESPODENTS
- RETURNING OFFICER WARD III ODOAKPU
- SUPERVISORY PRESIDING OFFICER WARD IV ODOAKPU
- RETURNING OFFICER WARD IV ODOAKPU
- SUPERVISORY PRESIDING OFFICER WARD V ODOAKPU
- RETURNING OFFICER WARD V ODOAKPU
- SUPERVISORY PRESIDING OFFICER WARD VI ODOAKPU
- RETURNING OFFICER WARD VI ODOAKPU
- SUPERVISORY PRESIDING OFFICER WARD ODOAKPU
- RETURNING OFFICER WARD VII ODOAKPU
NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the judgment of the National Assembly/Governorship Legislative Tribunal, Awka Coram Hon. Justices Ibrahim Maikaita Bako, Bolaji Yusuff M., H.A. Balogun, S.A. Bola and B.T. Ebuta dated 18th day of January 2008 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the Appeal, seek reliefs set out in paragraph 4.
AND the Appellant further states that the names and addresses of the persons directly affected by this appeal are set out in paragraph 5 of this Notice of Appeal.
- PART OF THE JUDGMENT COMPLAINED OF:
“THE WHOLE JUDGMENT”
GROUND ONE
The Honourable Tribunal was wrong when in its judgment it found as follows:
“Secondly, the petitioner alleged that election did not take place while the Respondents asserted that election took place. On whom lies the burden to establish that election took place in the Onitsha South II state Constituency. To resolve this issue reference is made to the case of Remi Vs Sunday (1999) 8 NWLR (pt 613) 92 at 105 where the principle is laid down that a party who alleges that election took place in a particular ward or constituency is required to prove the allegation … ”
PARTICULARS
(i) In coming to the above determination, the tribunal failed to appreciate the decision in Remi vs Sunday Supra, the party that asserted that election took place was the Petitioner who had the Onus to prove his petition by tendering credible evidence.
(ii) The tribunal failed to avert its mind that in the instant matter, it is the Petitioner who is asserting that election did not take place and would lose his petition if no evidence was introduced from either side.
(iii) The tribunal also did not advert its mind to the fact that the Respondent merely denied the case presented by the petitioner by alleging in denial that election took place.
(iv) The court below misplaced the Onus of proof when it held that it was the herein Respondent that had the burden to establish that election took place in the Onitsha South II State Constituency.
(v) The approach adopted by the Learned Tribunal was wrong which thereby occasioned a grave miscarriage of justice.
GROUND TWO
The tribunal was wrong when it held in its judgment as follows:
Form EC25 is the Form called Electoral Materials Receipt is apposite in the circumstance.
It is our respectful view that failure to tender this document is conclusive of the issue that INEC did not distribute the forms (EC8A1) to the units.
PARTICULARS
(i) The Tribunal failed to appreciate that the Onus of proof of the Petition rests on the petitioner and that until he establishes prima facie that election did not take place in Onitsha South II Constituency, the Respondents do not have the duty to call evidence in rebuttal.
(ii) The Tribunal failed to advert to the fact that its only when the initial burden cast upon the Petitioner had been discharged that the Respondents will have the duty to tender form EC25A.
(iii) The court below totally failed to take into cognizance the fact that the Petitioner gave the Respondents notice to produce form EC25A and which document the Petitioner failed to call for at the trial.
(iv) The above finding of the court below which is wrong influenced it in the decision it reached nullifying the election of the 1st Respondent.
GROUND THREE
The learned Tribunal was wrong when it relied on the evidence of PW1, PW4, PW5, PW6, PW7 and PW8 as evidence of persons who observed the distribution of Election Materials at INEC office, Fegge, Onitsha South II State Constituency.
PARTICULARS
(i) The learned Tribunal did not accord recognition to Section 46(3) of the Electoral Act, 2006 which provides that it is the polling agents that should observe the distribution of election materials and that the said polling agents should have been appointed in line with Section 46 (1) of the Electoral Act, 2006.
(ii) The court below failed to avert to the Petitioner’s pleadings in Paragraphs 7 (ii) of the Petition wherein the Petitioner stated as follows:
“As the materials were being sorted out and distributed into the various vehicles designated for each wards, Party agents accredited to the Local Government INEC office Observed that the result sheets were not among the items of the materials being sorted out and distributed.
(iii) The court below did not give consideration to the complaint of the Respondents that PW1, PW4, PW6, PW7 and PW8 (who did not even establish that they were party agents accredited to the Local government INEC Office) cannot give evidence of any probative value as to how the election materials were distributed at the INEC office.
(iv) The Court below also failed to discountenance the evidence of PW5 who does not know how materials were distributed from INEC office to the polling station and who could not say how result sheets look like unless told.
(v) The Court below failed to avert to the fact, despite also the complaint of the Respondents, that PW6 and PW7 were political office holders who are not party agents accredited to the Local Government INEC Office.
(vi) The learned Tribunal was also wrong when it accorded weight to the evidence of PW6 and PW7, who on account of being Political Officer holders cannot do the work of a polling agent or observe the distribution of Election materials at the INEC office.
(vii) The Tribunal also wrongfully failed to accept the position of the Respondents that the Petitioner in his Petition specified those that observed the INEC distribution of Election materials and that those who gave evidence for the Petitioner he (sic) did not fall within the scope.
(viii) The Tribunal failed also to give vent to Sections 44(3) and 46 (1) of the Electoral Act, 2006 in the assessment of the quality of the evidence of the Petitioner with respect to distribution of the Electoral materials at the INEC office.
(ix) The approach of the Court below in disregarding the aforesaid sections of the Electoral Act 2006 and failure to consider the paragraphs in the Petition in line with the evidence led, occasioned a grave miscarriage of justice.
GROUND FOUR
The Court below was wrong when it held that the evidence of PW1, PW2, PW3, PW4 and PW5 were not contradicted, whittled down or demolished under cross-examination.
PARTICULARS
(i) The trial Court failed to avert and make use of contradictions embedded in the evidence of the said witnesses and other such pieces of evidence that whittled down the cogency of the testimonies of the said witnesses.
(a) PW1 testified that he personally recorded the election proceedings with his camcorder in the course of his duty but in cross-examination, he stated that he did not record any proceeding in all the places he visited with his camcorder. He also failed to tender the said recording.
(b) PW4 who claimed in his testimony to be collation agent could not produce before the Court any letter of appointment to that effect.
(c) PW5 who said he observed that result sheets were not among the materials distributed turned round to state, inter alia in cross-examination that he would not know how result sheets look like.
(d) PW3 who deposed that on the day of the election he was at this (sic) collation centre at Anionwu/Obanye Street Onitsha only to turn round to state in cross-examination that his collation centre was Patrick Okolo Memorial Primary School and that he was not there on the day of the election. PW2 who claimed there was no election in Odoakpu Ward II turned round to testify in cross-examination that he was at “Metu” the collation centre which had only three polling units and that he was assigned to one unit and that he did not go beyond the polling units in Metu.
(i) PW2 also testified that he would not know how the Supervisory Presiding Officer distributed the Materials
(ii) The evidence of PW2 is more whittled down when in cross-examination he stated that when electoral materials were brought they were dropped somewhere, having stated in his deposition that INEC official, arrived at the centre with materials at 3.30pm.
GROUND FIVE
The Court below was wrong in the finding it made that voting taking place (where attempt were made) was as late as 5-6pm.
PARTICULARS
i. The above finding is not supported by evidence.
ii. The finding does not also flow from the pleadings of the Petitioner that there was no voting in the entire constituency.
iii. The above finding was wrong which occasioned a grave miscarriage of justice.
GROUND SIX
The Learned Tribunal was wrong when it held in its judgment that:
“Before then, the Tribunal shall consider the effect of failure to produce before the Tribunal Form EC25A and Form EC40 by the 2nd – 4th Respondents. The issue in focus is the non-provision of Electoral materials such as the Results forms. The petitioner alleged that the Respondents did not supply and distribute the forms to the polling units. The 2nd – 4th Respondents stated affirmatively that the result forms were amongst the materials supplied. It is the considered view of this Tribunal that it is incumbent on the INEC to establish that it supplied and distributed Form EC 8A1”.
PARTICULARS
- The learned Tribunal in coming to the above decision failed to follow the Court of Appeal’s decisions in Hon. Fidel Ayogu vs. Dr. Chimaroke Nnamani (2006) 8 NWLR (Pt 981) 160, 186-187; Prince Ajudua & Anor vs. Hon. Okaka wogu & Ors (2004) 16 NWLR (Pt.898) 59.
ii. The Court below also failed to follow the decision in Nnaji vs. Agbo (2006) 2 EPR P.867 at 894 and; Onoyom vs. Egari (1999) 5 NWLR (Pt.603) 416 at page 425 which are authorities binding on the Tribunal as to how non-election could be proved by the Petitioner.
iii. The approach adopted by the Court below was wrong which thereby occasioned a grave miscarriage of justice.
GROUND SEVEN
The Court below was wrong when in its judgment it held:
“Also the PW3 who was a collating agent for ward 3 testified that INEC officials arrived at the ward with materials at 4.pm without the result sheets which was being expected from Awka. That at 5:30, riot engulfed the ward due to non supply of result sheets. The ad hoc staffs fled from their units without election taking place. We do believe this piece of evidence emanating from a credible witness whose evidence including that of other petitioner witnesses is of high probative value”
PARTICULARS
i. The Court below was wrong when it adjudged both PW1 and PW3 evidence to be credible in that
a. PW1 who stated in his Written Statement on Oath that he covered the proceeding of the election with his camcorder denied this in cross-examination and failed to produce the proceedings of the election he covered in his camcorder.
b. PW3 contradicted himself when he stated in Paragraph 4 of his Written Statement on Oath that he was at the collating centre/polling booth in Anionwu/Obanye only to turn round in cross-examination to state that the collating centre was at Patrick Okolo Primary School and that he was not there on the date of the election.
ii. The approach of the learned Tribunal in according credibility to the evidence of PW1, PW3 occasioned a grave miscarriage of justice.
GROUND EIGHT
The learned Tribunal was wrong when it relied on the evidence of PW6 and PW7 who were Political Office holders (as at the time of the election) as persons who were present during distribution of the election materials and who could testify as such.
PARTICULARS
i. The Court below failed to given vent to the provision of Section 46 (1) of the Electoral Act, 2006, which prohibited political office holders from acting as polling agents in the election and the provision of Section 44 (3) that prescribes that it is the polling agents that should be present at the time of distribution of Electoral materials from the INEC office to the polling booths.
ii. The Court below wrongfully relied on the evidence of the afore-said witnesses who were not just political office holders but were also not polling agents.
iii. The Court below was wrong when it acted on the evidence of the said witnesses, which deeply influenced it in the decision it reached thereby occasioning a grave miscarriage of justice on the 1st Respondent.
GROUND NINE
The Court below was wrong when it held that the Respondents failure to tender form EC25A operated against them to the effect that election materials were not distributed.
PARTICULARS
i. The Petitioner at paragraph 11(c) (i) of the Petition gave the Respondents Notice to produce form EC25A.
ii. At the hearing, the said Petitioner failed to call for the said document which he had given notice to produce, the effect of it being that the Petitioner dispensed with the contents of EC25A in proof of the allegation in his Petition.
The Court below as an impartial arbiter on account of (a) and (b) above ought not to have held that the non-production of EC25A operated against the Respondents.
iv. The decision of the Court below in construing the non-production of Exhibit EC25A against the Respondents was wrong which occasioned a grave miscarriage of justice.
GROUND TEN
The learned Tribunal was wrong when in its judgment it relied on INEC Manual in coming to its determination that the 1st Respondent’s election be nullified.
PARTICULARS
- The Court below ought not to have acted on the said INEC Manual when
a. Same was not received in evidence b. None of the parties referred your Lordships to the said Manual
c. The Court below never called upon the parties to address it on the Manual and its applicability to the facts and circumstances of this matter.
ii. The Court below’s reliance on the Election Manual in the manner it did was wrong which occasioned a grave miscarriage of justice.
GROUND ELEVEN
The Judgment is against the weight of evidence.
- RELIEFS SOUGHT
To allow the Appeal and to set aside the judgment of the Tribunal delivered on 18th of January 2008.
- PERSONS AFFECTED BY THE APPEAL
A. OBIORA CHUKWUKA
1ST RESPONDENT/APPELLANT
C/O OF HIS COUNSEL
ARTHUR OBI OKAFOR ESQ.
NO. 15 O’CONNORR STREET
AMERICAN QUARTERS ONITSHA
B. THE PETITIONER/RESPONDENT
ALOR NDUKA
C/O HIS COUNSEL
C. J. AKIRIKA ESQ.
NWAFILI OKWUOSA, ESQ.
(COUNSEL FOR THE PETITIONER)
WHOSE ADDRESS IS:
HOUSE OF SOLOMON
SUITE 112 NIPOST COM.
OLD MARKET ROAD
ONITSHA
C. 2ND_19TH RESPONDENTS/RESPONDENTS
C/O COUNSEL
A.C. EJESIEME ESQ.
INEC OFFICE ANAMBRA STATE
AWKA
DATED THIS 4TH DAY OF FEBRUARY, 2008
ARTHUR OBI OKAFOR, ESQ.
ARTHUR OBI OKAFOR & ASSOCIATES
COUNSEL TO APPELLANT
WHOSE ADDRESS FOR SERVICE IS
NO. 15 O’CONNOR STREET AMERICAN QUARTERS
ONITSHA.
Distilled from these Grounds are three issues contained at page 5 of the Appellant’s Brief of Argument dated 9th May 2008 and filed on the 12th May 2008. There is also Appellant’s Reply Brief dated 20th June 2008 and filed on the 23rd June 2008 which said Briefs of Argument were adopted and relied on by Counsel for the Appellant Mr. Arthur Okafor at the hearing of this appeal on the 13th October 2008. The three issues so distilled by the Appellant for the determination of this Court are as follows –
- Was the Court below right when it held that the petition succeeded without giving due regard to where the onus of proof lies in this petition.
- Having regard to the facts pleaded, did the Tribunal properly evaluate the evidence tendered in this matter when it held that the petitioner has discharged the burden of proof placed on him.
- Was the Court below right when it relied on facts not pleaded and/or given in evidence in coming to its determination that the election of the 1st Respondent be nullified.
The 1st Respondent Alor Nduka for his part has chosen to adopt the same issues as the Appellant. His Brief of Argument is dated the 2nd June 2008 and was filed on the 4th June 2008. His Counsel C.J. Okoli – Akirika adopted and relied on the said 1st Respondent’s Brief on the 13th October 2008 at the hearing of the appeal.
The 2nd – 19th Respondents filed no brief of argument. Since there is common ground as to what the issues should be the 1st Respondent having adopted the issues set out by the Appellants, I shall proceed to deal with the issues as set out in the Briefs of argument of the Appellant.
ISSUE 1 – Was the Court below right when it held that the petition succeeded without giving due regard to where the onus of proof lies in this petition?
The 1st Respondent has submitted that on the state of the pleadings, applicable statutory provisions, legal presumptions and the admitted facts on record, the Hon Tribunal was right and justified in finding and holding that the petitioner had proved his case to warrant the evidential burden shifting to the Respondents to prove conduct of election in Onitsha South Local Government Constituency II on the 14th April 2007. The 1st Respondent continued as follows-
“It is further specifically submitted that in election petition which is undoubtedly sui generis the law is trite and to the effect that the placement of burden of proof in election petitions is dependent upon the pleadings of either party. The burden is always upon the party asserting the positive to prove the same. (Underlining is that of the 1st Respondent). See ADEDIJI & ANOR V. KOLA WOKE & ORS 2 E.P.R 70 at 87 paragraphs C – D per Mikailu (JCA). Section 135 of the Evidence Act provides as follows,
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
The 1st Respondent in this appeal is alleging that election did not take place in Onitsha South II Constituency because of the non provision of election materials especially result sheets which omission angered voters who protested and refused to vote. The Appellant is however contending otherwise. On whom does the burden of proof lie? What is not in doubt is that elections were slated to be held by the Independent National Electoral Commission (INEC) into the Onitsha South II Constituency on the 14th April 2007 and the presumption which is however rebuttable is that the elections did take place. Should the burden lie on the Appellant to say that the scheduled election took place or should the burden lie on the 1st Respondent whose position is that the scheduled election of the 14th April 2007 did not take place as scheduled? In ALLIANCE FOR DEMOCRACY V. FAYOSE (2005) 10 NWLR (PART 932) 154 at 188 it was held that an assertion can be positive or negative. In TUKUR V. GOVERNOR OF GONGOLA STATE (1988) 1 NSCC Vol. 19 PAGE 30 at 38 it was the Appellant that asserted the negative and yet the court held that the onus lay on him to prove his negative assertion.
1st Respondent has submitted in his Brief of Argument that TUKUR’s case is inapplicable to the facts and circumstances of the instant. I must however say that the principle is the same. FAYOSE’s case is also on the same legal principle contrary to the 1st Respondent’s assertion. And therein lies the error that the Honourable Tribunal allowed itself to make by coming to the conclusion that the onus of proving that election did not hold was not on the 1st Respondent since his assertion that it did not hold was in the negative and therefore the onus must be on the Appellant who is positively asserting that the election took place. See also MELIFONWU V. EGBUJI (1982) 9 sc 145. Indeed there is a plethora of cases on this subject matter. It would indeed be a dangerous proposition where a party who wanted an election nullified to come to court with an assembly of witnesses who would simply come and say that no election took place. The party who is making the assertion that no election took place must do something more than the assembling of witness to say so. The case of NNAJI V. AGBO 2 EPR 867 amply illustrates the point being made. It was held that “No doubt the allegation of the Petitioner that elections did not hold in 17 wards out of the 26 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 he can so easily discharge 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 the announcement and also tendering the voter’s 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 then sit back and leave the Respondents to struggle it out and show that there was an election.” Something more positive should be done by a party who is alleging that an election did not take place to indeed show that no election in fact took place like the production and tendering of unmarked voter’s register. This assertion carries greater weight were the Independent National Electoral Commission (INEC) to be subpoened to produce the voter’s register which would invariably be unmarked to show that no election took place.
This was not done by the 1st Respondent. In the case of AWUSE V. ODILI (2003) 18 NWLR (PART 851) 116 it was held that whether a person voted or not and by implication if I may say that whether there was election or not is a documentary matter which can be ascertained by looking at the voters register. I agree with the Appellant that the voter’s register is a public document in the official custody of the Independent National Electoral Commission and where it becomes relevant in an election petition, it is the petitioner’s duty to subpoena the Commission to produce the said voter’s register. Heavy weather appears to have been made of the case of REMI v. SUNDAY (1999) 8 NWLR (PART 613) 105.
In the above case it was the Petitioner who alleged that election took place whereas in the present appeal it is the 1st Respondent (Petitioner in the Tribunal below) who is alleging that no election took place. What is the effect of the 1st Respondent’s failure to discharge the burden placed on him to prove non conduct of the election in Onitsha South II Constituency? It is a failure also to rebut the presumption of authenticity and regularity of the result forms of the election. It is also a failure on the part of the 1st Respondent to prove the alleged non distribution of the result forms in EC 8A 1.
The 1st Respondent gave the 2nd Respondent Notice to produce form EC 25A and then went to sleep and did nothing about it and the Tribunal invoked the provision of section 149 (d) of the Evidence Act against the Appellant, casting the blame of non production on the Appellant which led to the Tribunal’s nullification of the 1st Respondent’s election. On whom did the burden to produce form EC 25 A lie? If it was so important to his case why did he not press for its production by the 2nd Respondent and upon its continued non production by the 2nd Respondent, lead secondary evidence and produce same. What is the effect of a Notice to produce a document? Does failure to produce the document mean that the person to whom such Notice to produce the document was given knows that if he produced the document it would be detrimental to his case? In other words does failure to produce the document warrant the invocation of section 149 (d) of the Evidence Act. I think not. The position of the law is very well amplified in the case of BUHARI v. OBASANJO (2005) 13 NWLR (PART 941) 1 at 198 where the Supreme Court said as follows-
“A party on whom a Notice to produce a document is served is not under any obligation to produce the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act. In other words the service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document, if he can or of proving its contents. Consequently the non response to a notice to produce a document will not cause the Court to invoke the presumption of withholding of evidence under section 149 (d) of the evidence Act against the defaulting party. (UBN Plc) IDRISU (1999) 7 NWLR (PART 609) 105; GBADAMOSI v. KABO TRAVELS LTD (2000) 8 NWLR PART 668 243 referred to) (Pp 236) paragraphs A – C; 262 – 263, paragraphs H-A.”
I accordingly resolve issue 1 in favour of the Appellant against the 1st Respondent.
ISSUE 2-
Having regard to the facts pleaded did the Tribunal properly evaluate the evidence tendered in this matter when it held that the Petitioner has discharged the burden of proof placed on him? This is sequel to the Tribunal’s judgment at page 606 of the Record which reads as follows, “We have considered the evidence of the PW1 – PW8 particularly PW1 – PW7 the witnesses appear to us to be witnesses of truth who had first hand information and direct knowledge of what happened at the INEC office and at the polling booths on the day of the election. Those testimonies are consistent with each other. Their evidence paints a vivid picture of the scenario of the trend of events and occurrences at the INEC office at the Onitsha South Local government secretariat the collation centres and the polling units in the wards in the constituency ” and at page 614 of the Record, “In the final analysis, this Tribunal holds that the Petitioner has discharged the burden of proof placed upon him. This he had done by the preponderance of evidence adduced by the petitioner’s witnesses”
Underlining mine for emphasis.
The contention of the Appellant is that an evaluation of evidence must be in regard to the facts pleaded and it is only after the Respondent has led credible evidence in support of pleaded facts that the burden shifts on the Appellant to rebut same and has relied on BUBARI v. OBASANJO (supra) page 309. He went on to submit that from the pleading of the Petitioner/Respondent it was party agents accredited to the INEC office at the Local Government that discovered or found out that result sheets were not among the materials sorted out for distribution and that evidence adduced must relate to this pleading, and that the best evidence that would have been admissible to prove that result sheets were not among the election materials being distributed at the INEC office is the evidence of polling agents. Reliance was placed on EZEMBA v. IBE IBENEME & ANOR (2004) 14 NWLR (PART 894) page 617. This not having been done the allegation of non supply of result sheets was not proved and the petition ought to have been dismissed. It would appear to me from this reasoning which is undoubtedly a sound one that the pleading of the Petitioner/Respondent did not bring P.W.1 Chuka Okafor into the realm of those that found that result sheets were not among the materials that were sorted out for distribution at the INEC office. The tribunal to my mind should have discountenanced that piece of evidence as not falling in line with the facts pleaded. Again PW1’s evidence that a report was made by him of what happened on election day which said report was passed on to his superiors could have been placed before the tribunal. The report is a very valuable piece of evidence so also is the recording P.W.1 said he made in his Camcoder but which was not placed before the tribunal. These lapses on the part of PW 1 ought to have been taken into account by the Tribunal in its evaluation of the evidence of PW1. PW 2 is one Lawrence Ezeribe a trader by profession who said he lives at No. 16 Modebe Street. After adopting his statement, he said while being cross examined by Mr. Okafor that he did not come with his letter of appointment as a polling agent having forgotten the said letter of appointment at home. This was a witness who knew that accreditation was in issue. The cross examination on this issue was rigorous and when counsel from the records (see page 425) pointedly told him that he was telling lies he merely said he was past the age of telling lies. The tribunal to my mind could not have been right to say that PW4′ s evidence was unchallenged as the truth.
PW5 Kenneth Aloka – His statement on oath is almost the same word for word with that of PW 4 Emeka Kemalu. This I find strange because even if two persons have the same experiences, they narrate them differently. His statement on oath is contained at pages 26 and 27 of the Record of Appeal. He said that he was the chairman of the All Nigeria Peoples Party (ANPP) Onitsha South, the Local Government Collation agent of the party at the election held on the 14th April 2007. As earlier stated the rest of his deposition is the same as that of Emeka Kemalu PW 4. He was cross examined at pages 426 – 427 of the Record of Appeal. His statement under cross examination is worth reproduction. Before then it should be restated that in his statement on oath he had said he was a Collation agent in the said election of 14th April 2007. Hear him under cross examination –
” I do not remember when election starts at an election. I do not remember the work of a collation agent (underlining mine for emphasis). I do not know how materials are distributed from the distribution centre to the wards and down to the polling units because I am not an INEC staff. I cannot tell how the result sheet will look like unless I am told (underlining mine for emphasis).
I do not remember where the National office of the ANPP is.
It is not true that Electoral materials were duly distributed on the day of the election. I am telling the truth.” This witness deposed in his statement on oath that he is a trader. He may have done himself a lot of good by sticking exclusively to his trading and yet the tribunal attached a lot of weight to his evidence when no weight should have been attached to it.
PW 7 Dr. Emeka Aniebonam His statement on oath is contained at pages 24 – 25 of the Records. Paragraphs 1 and 2 of his statement read as follows –
- I am the above named person and a medical doctor by profession and the chairman of Onitsha South Local Government Area.
- By virtue of my political office as the Chairman of Onitsha South Local Government I am conversant with the facts of this matter.
He then went on to say at paragraph 5 of his statement on oath as follows’ “When the materials were deemed sorted out and ready to be moved to the various wards, I, with respective party agents discovered that booth result sheets and local government collation result sheets were not included…”
The Respondent’s petition makes specific those who were said to have found that result sheets were not among the materials being sorted out and distributed and neither the person nor the office of this witness is so included. This evidence is therefore at variance with the Respondent’s pleadings and therefore goes to no issue. See WOLUCHEM v. GUDI (1981) 5 S.C. 291.
I have addressed the evidence of nearly all the Respondents witnesses. I do not have to address all of them. It is clear from the above that the Tribunal did not properly evaluate the evidence of the Respondent’s witnesses before arriving at its decision. I’ll therefore resolve issue No.2 in favour of the Appellant against the Respondent.
I shall now proceed to determine issue 3 which is as follows, “Was the court below right when it relied on facts not pleaded and/or given in evidence in coming to its determination that the election of the 1st Respondent be nullified.”
Reference has been made to the use by the Tribunal of INEC manual which was not pleaded and was not received in evidence. I do not want to expend much words on this issue. The Tribunal was wrong in so doing and I resolve this issue in favour of the Appellant.
All three issues having been resolved in favour of the Appellant the appeal succeeds and is allowed and the judgment of the Tribunal delivered on the 18th January 2008 is hereby set aside. There shall be N30,000.00 costs in favour of the Appellant.
Other Citations: (2008)LCN/3021(CA)
