Foluso Ojo & Anor. V. Micheal Ayodele & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE SOTONYE DENTON-WEST, J.C.A.

This is an appeal from the Judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting at Ado-Ekiti delivered on the 14th April, 2007. The House of Assembly Election was conducted by the 3rd to the 11th Respondents for Oye Constituency 1 of Ekiti State. The Tribunal on the 30th day of July, 2008 delivered its judgment in favour of the Respondent. The case of the Appellant is that, on the 14th of April, 2007, elections were held in Ekiti State into the Ekiti State House of Assembly. At the said election, the 1st Appellant and the 1st Respondent were candidates of the Action Congress and the Peoples Democratic Party respectively. At the conclusion of the election, the 2nd Respondent was declared the winner with 17,145 votes while the 1st Appellant scored 4,447 votes. The Appellants dissatisfied with the judgment of the Election Tribunal filed this appeal and raised six issues for determination namely:

1. Whether the Tribunal was right to have struck out the issues formulated by the parties for their departure from that earlier agreed to by the parties in the pre-trial proceedings.
2. Whether the failure of the Tribunal to carry out a comprehensive review of the evidence of the Appellants and their witness including documentary evidence occasioned a miscarriage of justice;
3. Whether the Tribunal was right to have discountenanced the evidence of Appellants’ witness as having not proferred in respect of any polling unit and as being at large;
4. Whether the Tribunal was right to have explained off a manifest irregularity as being a mistake when there was no evidence of mistake before it;
5. Whether the Tribunal was right in its refusal to ascribe probative value to Exhibit P3 which is the overall report rendered on the disputed election.
6. Whether the Tribunal was right to have held that Appellants did not show how non-compliance with the provisions of Electoral Act 2006 affected the election of the 1st Appellant and dismissed the petition.”

On his part, the Respondents identified two issues for determination namely:

“1. Whether the Tribunal was correct when in its Judgment it preferred to adopt the issues earlier agreed upon by the parties during the pre-hearing session and whether the said decision occasioned any miscarriage of justice to the Appellant.

2. Whether the Tribunal properly evaluated the oral and documentary evidence placed before it by the Appellants in arriving at its decision dismissing the petition?

Brief of arguments were filed and exchanged. The 1st Appellant’s brief was deemed properly filed and served on the 6th October, 2008.

Mr. Balogun the Counsel for the Appellant then adopted their brief and urged the court to allow the appeal, informing the court that he had a list of additional authorities which he referred the court to during his expatiation of his brief, when he cited OSUNBOR -VS- OSHIOMOLE as an unreported decision of this court delivered on 11th November, 2008. He also submitted that election is a process and that there was no election and that the authorities cited by the Respondents in AKINSETE- VS- BALOGUN cannot avail them. Thereafter Oluwasina Ogungbade Esq for 1st and 2nd Respondents adopted their brief which was deemed filed on 22nd October, 2008. The 3rd to 11th Respondents have been served but they were not represented. Ogungbade urged the court to dismiss the Appeal and said that OSHIOMOLE’s case is not applicable in this Appeal and that there is a lot of difference between admissibility of document and the weight to be attached to it.

In the circumstances of this appeal, it would be apt to adopt the two issues filed by the Respondents as it adequately touches all the facts required to determine the appeal. The courts are of the view that it is not ideal to delve into multi issues that do not actually settle the issues in controversy. That it is better to be precise and concise in formulation of issues, than proliferation of issues. See the Supreme Court case of OKO VS CENTRE POINT MERCHANT BANK LTD (2008) ALL FWLR (PART 44) PAGE 837 – 838 PER OGEBE JSC when he said”

“This court frowns at proliferation of issues as presented by the Appellant’s brief in this appeal. The only issue that calls for consideration is that of whether there was proper proof of service of the originating process on the Respondent before judgment was given against it by the trial court.”

The issue in controversy in this appeal is quite clear and could be adequately dealt with in the said two issues formulated by the Respondents. So I proceed to do so

ISSUE 1:

Whether the Tribunal was not correct when in its judgment it preferred to adopt the issues earlier agreed upon by the parties during pre-hearing session and whether the said decision occasioned any miscarriage of justice to the Appellant.

The Appellants in their submission heavily relied on the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) AND 19 OTHERS -VS- COMRADE ADAMS ALIYU OSHIOMOLE to be found in appeal CA/B/179A/2007, CA/B/179B/2007, CA/B/EPT/91/08, CA/B/EPT/92/08 AND CA/B/EPT/93/08 an unreported decision of this court delivered on 11th day of November, 2008, Coram ABDULLAHI PCA, ISA AYO SALAMI JCA, AMINA AUGIE JCA AND UZO ADUKWE ANYANWU JCA where the Court of Appeal unanimously find in favour of the Respondents wherein the Court observed that the Appellants have unfairly made a deliberate attempt at misinterpreting not just the contents of the petition, but also the very purpose and tenor of the Tribunal’s judgment. The effect of this is that by and large, the grounds of appeal, the issues raised in the Appellants brief and the submissions of counsel are poles apart from the judgment of the lower Tribunal and that an appeal is a continuation of hearing and grounds of appeal must be anchored on the judgment of the lower court. It is upon this premises in the Oshomole’s case that the Court of Appeal found in favour of Oshiomole’s and held thus:

“On its part, AC argued along the same line that there is nowhere in the entire length of its judgment that the Tribunal annulled any elections.

The above submission is well taken, and it represents the true position of what the Tribunal found after a painstaking review of all the material placed before it. It is manifest from the Tribunal’s finding, which is unchallenged that the petitioners scored twenty-five percent of the lawful votes cast in ten out of the twelve contested Local Governments, as well as in the four uncontested Local Governments. The petitioners therefore satisfied the requirements of section 179(2)(a) and (b) of the 1999 Constitution by scoring the “highest number of valid votes case at the election” and scoring “not less than one-quarter of all votes cast in each of at least two-thirds” of the eighteen Local Governments of Edo State. From the foregoing, it is clear that the three main appeals lacks merit. They are accordingly dismissed. The judgment of the Tribunal delivered on the 20th March, 2008 is hereby affirmed as well as all the consequential orders made therein, which are as follows:

1. Comrade Adams Oshiomole is hereby declared as the elected Governor of Edo State of Nigeria being the candidate who has scored the highest number of valid votes cast and has satisfied the requirements of the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act, 2006.
2. The certificate of return issued to Senator (Prof) Oserehmien Osunbor as elected Governor of Edo State is withdrawn and nullified.
3. The Independent National Electoral Commission (INEC) is hereby ordered to issue Comrade Adams Aliyu Oshiomhole a Certificate of return as the elected Governor of Edo State of Nigeria forth-with.
4. Each party will bear its own costs.”

I shall now travel down the memory lane of the evidence and the submissions relevant to the determination of this issue, and the applicability of this authority and any other relevant ones.

Mr. Balogun, the Learned Counsel for the Appellant submitted that the petitioner knows his case and that the court cannot make a case for him outside the one he has made. Where a question of fact is disputed, it is said to be in issue in any legal proceeding. The petitioner only formulated in his written address the fact in contention between the parties and he submitted same to the Tribunal for determination. Mr. Balogun, the Learned Counsel for the Appellant further submitted that it is conceded that paragraph 7(c) of the Practice Directions Provides for the formulation of issues to be determined in an election petition. He went on to say that it is however not out place for parties to formulate issues for determination after trial had taken place as was in this instant case. It is admitted that it is an age long legal position of our adjectival law that the Practice Directions are merely directory and as such no wrath of the law will occasion its non adherence. The Learned Counsel for the Appellant refers the court to the Supreme Court decision in EGBE -VS- COP (2008) 4 NWLR (PT. 1076) 189 where it was held that judges in carrying out the judicial functions should follow or observe the rules with a view to stall proceedings or cause injustice. The Appellant’s counsel also submitted that it is wrong in law for the lower Tribunal to strike out their issue formulated in the written address of the Appellant. The Tribunal’s actions are wrong in law and ought to be upturned as it has occasioned a miscarriage of justice in that the Tribunal strayed away from the real issue in contention between the parties. In this regard, the Learned Counsel for the Appellant went further to define what an issue is. An issue, according to the Learned Counsel, may be defined as that which if decided in favour of any party will give a right or relief or defence to an action. In this instant case the Learned Counsel for the Appellant referred us to the Supreme Court decision in the case of EBBA VS OGBONO (1984) 4 SC 84 where parties are at times masters of their cases and they are not restricted by law from formulating any issue of which would have entitled them to their reliefs and that it is not the business of the court in whatever manner to deal with any issue not submitted before it.

The Learned Counsel for the Appellant referred the court to the case of IDIKA -VS- ERISI (1988) 2 NWLR (PT. 78) 568 to buttress his argument.

In the resolution of this issue recourse had to be given to the antecedents, i.e the Judgment delivered on 30th day of July, 2008. The Tribunal in its Judgment on pages 907 – 908 of the record and as submitted by the Appellant said:

“Before proceeding to consider the foregoing issues, we would like to observe that the petitioner (sic) strayed away from the issues formulated and unanimously agreed to by all parties for determination in this petition. Equally, the counsel for the 1st and 2nd Respondents did not make use of the agreed issues. In compliance with paragraph 7(c) of the Election Petition and Court Practice Directions 2007, parties on 5th day of March, 2008 consented and unanimously agreed and adopted the issues formulated by the 3rd to 11th Respondents as the issues for the determination of this petition ….. those issues will be the only with issues which the Tribunal would be concerned……….. Accordingly we strike them out.”

It is true as submitted by the Appellants “that Court Practice Directions cannot infract the right of parties to prosecute their petition outside the ones submitted to court for determination, but it is also trite law that the Tribunal as Court of first instance is the court that is seized of the facts that led the court to jettison the issues originally formulated and unanimously agreed to by all the parties for determination of the petition and because petitioner strayed away from the issues so formulated. It is also a matter of evaluation of evidence that the 1st and 2nd Respondents also strayed away from making use of the agreed issues.

What should the Tribunal in that type of circumstance do? Should the Tribunal go to sleep? The answer is in the negative. A Tribunal who is alive to its responsibilities and duties would surely uphold the course of justice and not allow it to stray as the Appellants and the 1st and 2nd Respondents had done; by straying away from the agreed formulated issues. The Tribunal, accordingly invoked the law by which she and the parties before her are governed, and thus had a resort to the Election Petition and Court Practice Directions 2007; which in accordance with paragraph 7(b) of the same Practice Directions 2007, the parties on 5th day of March, 2008 consented and unanimously agreed and adopted the issues formulated by the 3rd to 11th Respondents as the issue for the determination of the petition.

The Appellant according to the Tribunal had strayed away from the issues formulated and agreed to by all parties, whilst also the 1st and 2nd Respondents did not bother “to make use of the agreed issues.” In that circumstances, since the Appellants, 1st and 2nd Respondents had by their inaction strayed away or abandoned the agreed issues, the court had no alternative but to strike out those issues which I believe have been abandoned and proceeded with those issues which are subsisting, active and ready for determination, for justice delayed will be justice denied and no Court or Tribunal worth its salt would watch helplessly and allow the course of justice to derail, or to be unduely delayed bearing in mind the urgency of election petitions as constantly stipulated in the Electoral Act 2006 and the Election Tribunal and Court Practice Directions 2007.

Unless the Appellants can show that the adherence of the Tribunal to the strict letters of the Election Petition Act and Court Practice Direction 2007, had occasioned injustice or miscarriage of justice, then this court would not be at hand to aid the Appellant nor the 1st and 2nd Respondents straying away from issues formulated by them, for their action would have left the court in limbo. The Appellants, 1st and 2nd Respondents should not have strayed away from their issues without immediately formulating new ones thus creating a position where the ship of justice would have been static, but for the invocation of the Election Petition Act, 2006 and the Court Practice Directions of 2007 in aid of the Tribunal.

In this circumstances the authorities relied upon EGBE -VS- COP (supra) does not avail the Appellant that the Judges in carrying our their judicial assignment should not be slavish to the observance of rules to stall proceedings or cause injustice. However, the Tribunal had only performed its duty according to Law. This is the fact on ground. In fact it is the observance of the rules of court that had aided the progress undertaken in the proceedings rather than stall the proceedings for lack of issues for determination in the petition.

Although, I agree with Appellant’s counsel submissions in EBBA -VS- OGBODO (1984) 4 SC 84, that parties are at all times masters of their cases and not restricted by law from formulating any issue, the decision of which would entitle them to their beliefs; neither is if the court of law business whatsoever to deal with any issue not submitted before it.” (sic), nevertheless by provision of the law where parties are tardy, this court is empowered by virtue of section 16 of the Court of Appeal Act and also by virtue of Order 18 rule 11, (1) and (2) of the Court of Appeal Rules 2007, which grants the court power to give any judgment and make any order.

The provision of the rule is hereby reproduced:

(1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.

(2) The powers contained in paragraph (1) of this rule may be exercised by the Court, notwithstanding that the appellant may have asked that part only be a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

In like manner the Tribunal is enjoined to apply the express provisions of the Electoral Act, 2006 and the Election Tribunal and Court Practice Directions 2007, in the conduct of its affairs.

Section 50 of the First Schedule to the Electoral Act, 2006 provides:

Application of rules of court

50. Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regards to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.

Furthermore the same Electoral Act 2006 in a bid to ensure that the proceedings of a Tribunal is not rendered nugatory merely because of these Rules of Court also provide in section 49(1) of the same first schedule of the Electoral Act 2006, as follows:

Non-compliance with rules, e.t.c

49(1) Non-compliance with any of the provisions of this schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deems fit and just.

(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.

(3) An application to set aside an election petition or a proceeding pertaining thereto shall clearly stated the legal grounds on which the application is based.

(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.

(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”

Therefore from all I have been saying and the applicable rules of court, the Tribunal was correct and is deemed to be correct by virtue of the provisions of the Electoral Act, 2006 and the Election Tribunal and Court Practice Directions 2007.

It is the submission of the Learned Counsel for the Appellant that 1st Respondent’s case is that, there is no regularity on the face of most of Exhibit R21 -18 and R3(1-15). It was submitted that if the Tribunal had reviewed all the electoral forms tendered in the petition as highlighted, it would have nullified the votes cast in OYE 1 Constituency as claimed in paragraph 55(i), (ii) and (iv) of the petition at pages 21 and 22 of the record. It was further submitted that since there are glaring contradictions in the electoral forms it ought to have been nullified by the Tribunal in line with the decision in BUHARI -VS- OBASANJO (2005) NWLR (pt, 910) 241 where it was held: “Where a document tendered in evidence by a party is self contradictory, it is unreliable and of no probative value (P. 586, paras D-H) per NSOFOR, JCA at pages 586 – 687 para D – B.

“(1) Now, R. W. 15, Sunday Andrew Oshabole, E.O. for Okene, L.G. A. tendered one (1) form EC8A Exhibit 284. The Exhibit showed the:

(a) Number of ballot papers (per column 2)” was 395 ballot papers issued to the polling station.

(b) Column 3 per exhibit 284; the number of “unused ballot papers was “5”

(c) Column 6 of Exhibit 284 showed as 395 as number of total valid votes.

Now, form EC8A is the bases of the pyramid. By a simple arithmetic the five (5) unused ballot papers out of the total ballot papers issued to the polling station would be 390 ballot papers to be used by 390 voters in the decision. How then by natural and logical reasoning and arithmetic could be the same number of 395 voters be using the total number of ballot papers originally issued to the polling centre. The counsel for the Appellant urged the court to resolve the issue in favour of the Appellant in view of the general powers granted by section 16 of Court of Appeal Act and urged the Court to review the Appellants’ case as presented before the Tribunal and grant the Appellants’ prayers as contained in his petition. On the contrary the Respondent argued that the Appellant’s reliance on the dissenting judgment of NSOFOR (JCA) in BUHARI’s case when it was on the court of level would not avail the Appellants. The stance taken by Nsofor (JCA) had been overruled by the apex court in the same BUHARI -VS- OBASANJO (2005) 13 NWLR PART 941 PAGE 1 AT PAGE 208 PER BELGORE JSC when he said:

“For the dissenting judgment of Nsofor, JCA, I would have skipped it entirely in view of what I have written on issues 1-18 above. But looking at the judgment, it seems to me more of emotional response than the facts and the law before Court of Appeal. Facts unpleaded were alluded were to as if they were of issues in the matter. Little errors and irregularities in some little polling units, Local Government Areas and collating centres, in most cases unpleaded, and with little or no substantial evidence in support were relied upon. I do not, in my respectful view, think that judgment has done any jurisprudential damage to majority judgment which has been product of thoroughly considered assessment.”

Appellants thereafter submitted that the Tribunal with due respect deliberately refused and or neglected to consider the contents of the said Exhibits irrespective of the fact that their attention was drawn to the glaring irregularities on the face of the Electoral forms as highlighted on pages 773 to 778 of the record which was hereinafter re-capitulated.

I do not intend a recapitulation of the record on 773 – 778 which I have read and indeed as much as humanly possible digested. My reaction to the only submission in respect of the contradiction being pointed out in the Electoral form for which the Appellants prays for a nullification by the Tribunal in line with the decision in BUHARI -VS- OBASANJO (2005) NWLR (PT. 910) 241, where it was held:

“Whether a documents tendered in evidence by a party is self contradictory, it is unreliable and of no probative value, page 586, paras D, H) per NSOFOR JCA at pages 586 – 587, paras D- B. BUHARI -VS- OBASANJO (supra), would not come to the aid of the Appellants in this Appeal except there is a miscarriage of justice which they have not shown. The Appellants have only recanted and recapitulated the records in respect of certain Exhibits. They have failed to show that these ballot papers and the Electoral forms contradict by way of evidence or other Exhibits. Their stance in this issues one and even the other issue is not clear as Respondents’ argue that it is the dissenting of NSOFOR JCA, that Appellant anchor upon whilst same have been overruled by the apex court.

On this issue, the Learned Counsel for the Appellant submitted that both the Appellant and the Respondent complained of the fact that the Tribunal discountenanced the testimonies of the Appellants’ witnesses as having not been proferred in respect of any polling unit is grounded in law.

The Appellant’s counsel referred the court to the observation of the Tribunal on page 913 of the record as follows:

“Now coming back to the poser raised earlier as to whether the petitioners have discharged the burden placed on them by law to establish their case. See JANG -VS- DARIYE (2006) 2 EPR. RG. 839 AT 847. We deem it necessary to go back a little to the evidence led by both parties. As observed earlier on this judgment, the evidence of PW1, PW3, PW4 and PW9 (the Petitioners) is the same, almost word for word. It seems from their evidence PW1 and PW3, and PW4 were election monitors boss of their party. They were neither the party’s agents nor were their voters. Each admitted under cross examination that his party the Action Congress had party agents in all the units in Oye I ward and Oye II and ward III. None of them gave evidence in respect of a specific polling unit. They in our view only gave evidence at large and did not tie their evidence to any specific polling unit. Even though PW4 under cross examination said it was possible to see about 5 polling units from where he sat, but he did not specify those polling units. Strictly speaking therefore their evidence are at best worthless as none gane particular evidence in respect of any polling unit where elections did not hold. They seem not to have any business in those units.”

He submitted that the case of the Appellants was not in respect of the specific polling unit but the whole of Oye Ward I and II and any evidence proferred in that regard is relevant and the Tribunal ought to have considered same. He submitted further that the reason used by the Tribunal to whittle down the probative value of the Appellants’ evidence as worthless with utmost due respect to the Tribunal that does not accord with reasoning and it is devoid of fair basement and evaluation.

In the matter at hand, the petitioner called 9 witnesses while the 1st and 2nd Respondents called 5. The 3rd – 11th Respondents did not call any witness. Several documents were also tendered as Exhibits by all the parties. The Appellant argued that the Tribunal failed to comprehensively review the evidence of the Appellants’ witnesses and all exhibits tendered by Appellants’ witnesses and all exhibits tendered by them. The witnesses of the Appellants were:

1. PW1- Ajimoko James -page 819 of the record.
2. PW2 – Micheal Ade Ogundele – Pages 820 – 821
3. PW3 – James Kayode Taiwo – Page 822.
4. PW4 – Bamise Tosin – Page 823
5. PW5 – Ilesanmi Olabininu – Page 284
6. PW6 – Olutunde Funmilayo – pages 858 – 864
7. PW7 – Victor Ojo – Pages 838 – 839
8. PW8 – Olatunde Adebodun Yadeka – Pages 858 – 864
9. PW9 – Funsho Ojo – 1st Petitioner – page 864 of the record.

He cited EJO -VS- WILCOX (2003) 13 NWLR (PT. 838) 488 AT 510 in support of his submission. He further submitted that the 1st Respondent is obliged to adduce credible evidence, capable of belief in order for the requirement of minimal proof to have been established, as the Respondent is not bound to call evidence.

In view the evaluation of evidence is the hallmark of a Judge’s duty before pronouncement of any judgment and a party is entitled to judgment if the trial court believes and accepts his evidence and if such evidence supports his case. However, the fact that the court rejected the evidence of a Defendant does not entitle the plaintiff to a judgment. See BELLO VS ARUNA (1999) 8 NWLR (PT.615) 87 AT 89. 16

The Tribunal in its evaluation of the evidence adduced by the Appellant in support have acted in accordance with the pronouncement of the apex court in BELLO -VS- ARUNA.

The evidence led and referred to by the Appellant in the brief of argument even though as stated they are unchallenged pieces of oral evidence and Exhibits that could establish their claim but nevertheless the evidence is self defeating and unacceptable, and so the Tribunal is not obliged to act on them.

See ARTRA INDUSTRIES (NIG) LTD -VS- N.B.I.C. (1998) 4 NWLR (PT. 546) 357 see the unreported decision of the Supreme Court delivered on 12th December, 2008 in SC.72/2008, ALHAJI ATIKU ABUBAKAR & 2 OTHER8-VS-ALHAJI UMARU MUSA YAR’ ADUA & 903 OTHERS and SC.51/2008, GENERAL MUHAMMAD BUHARI -VS- INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 4 OTHERS.

OGUNDARE JSC in GENERAL MUHAMMED BUHARI VS INEC & 4 ORS, in his minority Judgment wit suit No. SC/51/2008 decided on 12/12/08 (unreported) opined thus:

“It should be born in mind that prima facie the laws are made to be obeyed. All persons, authorities, agencies of government and government must be the laws of the land. It is the degree of obidence accorded to the laws of the land that distinguishes the state of development in a given country. When laws are not anarchy sets in. It is trite that a party can not appropriate and at the same time reprobate, in the case at hand, all parties agreed at the pre-hearing stage on issues to be treated, this was done without threat or force, it would however be uncalled for, for any at the parties to somersault and rains new or different issues without recourse to the initial agreement on issues the care to address the court on. (Underline mine).

Therefore in view of what I have been saying, I would say the Tribunal was correct when in its judgment it preferred to adopt the issues earlier agreed upon by the pre-hearing session and in my view this decision did not occasion any miscarriage of justice as it was done in accordance with the Rules of Court “and even if its adoption occasioned any irregularity such irregularity is also cured by the provisions of section 49 of the first schedule of the Electoral Act, 2006. I am obliged to find in favour of the Respondent. In this issue and I accordingly do so.

ISSUE 2

Whether the Tribunal properly evaluated the oral and documentary evidence placed before it by the Appellant in arriving at its decision dismissing the petition.

In the determination of this issue as proferred, most of what needed to be addressed in this issue has been subsumed whilst in the process of determining issue one because in order to find out whether there had been in any way of form a miscarriage of justice to the Appellant by the Act of the Tribunal in their preference to adopt the issues earlier agreed upon resort had to the oral documentary evidence before the tribunal and this court had to be given to take decisions bothering on whether the Tribunal actually acted judicially and judiciously in arriving at its decision, and in the process there was cause to evaluate the oral and documentary evidence. Therefore refer to the submission of both counsels for Appellant and Respondent in this regard already ventilated in issue 1. Accordingly, I also adopt what I said in issue I as part of my Ruling in this issue.

However as a way of addressing this issue specifically, I would in all sincerity opine that the burden of proof is on the party who asserts and this burden of proof lies squarely on the shoulders of the party who is asserting, although the standard of proof required is on a preponderance of evidence and balance of probabilities.

See KALA -VS- POTISHUN (1998) 3 NWLR (PT. 540) 1; ITUAMA -VS- AKPE-IME (2000) 7 S.C. (PART II) 24; BRAIMAH VS ABASI (1998) 13 NWLR (PART 581) 167.

Evaluation of evidence has been held in a plethora of cases as being the preserve and great privileged of the Trial court which is the court that could hear, listen, observe and interact with the parties at the first hand. I agree with the 1st and 2nd Respondents that it is settled law that the Court of Appeal does not engage in the business of believing or disbelieving witnesses as that is essentially the prerogative of the trial court. See BASHAYA -VS- STATE (1998) 5 NWLR (PT. 550) 351 AT 370 – 371; HALARY FARMS LTD -VS- M.V. “MATITRA” (2000) 2 NWLR (PT. 645) 521 AT 529; ERIRI -VS- ERHURHOBARA (1991) 2 NWLR (PT. 173) 252 AT 273; EBBA -VS- OGODO (1984) 1 SCNLR 372 AT 385.

Recently, this court in UBALE -VS- DADIYA (2008) 15 NWLR (PART 1111) PAGE 489 AT PAGE 503; NDUKWE ANYANWU (JCA) said:

“It is trite law as can be seen in EBU -VS- OBUN (SUPRA) that:

“A party who alleged that failure to hold election in some wards could not affect the result of the election has no lead evidence as to the number of registered voters in each of the wards and also the number of votes scored by him and the other candidates and then show that failure to conduct election in those wards would not affect the result of the election; that is, that despite the failure to conduct election in those wards that the majority of lawful votes scores by him is such that he would still win the election at any event.”

See Sidi Ali -vs- Ban Takwa (2004) ALL FWLR (PT. 202) PG. 1903; Uwawah -vs- Ekwejunor Etchie (1962) 1 SCNJ page 157.

Where a number of registered voters could not vote due to no fault of theirs, it is said that they had been disenfranchised. If the number of registered voters is such that it will sway the outcome one way or the other, fresh election ought to be conducted.

In the present petition, the number of registered voters is substantial and cannot be glossed over. See section 27(4) which states:

“Notwithstanding the provision of sub-section (3) of the section, the commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made.”

This is not the case in this petition as over fourteen thousand registered voters would affect the result of the election whichever way you look at it.

The appellant did not prove that the over fourteen thousand registered voters could not make a difference. The appellant only urged the court to hold that over twenty -three thousand registered voters voting was substantial compliance. I do not think so.

I therefore hold also that the election held on 14th April, 2007 for Balanga South State Constituency was inconclusive and the appellant cannot be declared winner in that election of 14th April, 2007.”

The Appellant in their submission stated that the Appellate Court has power to reverse any finding of fact which in its opinion is not supported by evidence and referred the court to BASHEER -VS- SAME (1992) 4 NWLR (PT. 236) 491 AT 508.

This is indeed is possible provided this court finds as of fact that the Tribunal has received in evidence, facts which are not supported by evidence. For determination of this, there should be recourse to the weighing of the credibility or otherwise of the witnesses which the Appellate Court has not got the benefit of seeing the witnesses testify. See FASHANU -VS- ADEKOYA; SAGAY -VS- SAJERE (2000) 6 NWLR (PT. 661) 360.

The Appellants finally submitted “that the irregularities highlighted in Exhibit P3 and forms EC 8A in respect of disputed result which amount to great none compliance with the provisions of the Electoral Act 2006 which Your Lordship should take as having been proved by documentary evidenced.” It is trite law that mere irregularities per se cannot amount to non-compliance with the provisions of the Electoral Act 2006, which could lead the court to annual and declare an election as null and void. See section 49(1) of the 1st schedule to the Electoral Act 2006. Will these irregularities as featured in Exhibit B and Form EC 8A in this appeal constitute or be sufficient to nullify the election. I am obliviously inclined to answer in the negative. It has been held that the effect of the nullification of an election is that the return of the candidate at that election was null and void and of no legal consequence and that the candidate’s tenure of office could therefore not be calculated from the date he took office in respect of an invalid election. See: PETTER OBI -VS- INEC (2007) 11 NWLR (1046) 560; SECTION 49(1) OF THE FIRST SCHEDULE OF THE ELECTORAL ACT 2006; EHRIM – VS- IMO STATE INDEPENDENT ELECTORAL COMMISSION (2008) 15 NWLR (PT. 111) 443.

Further in UBALE -VS- DADIYA (2008) 15 NWLR (PT 1111) 489, 502 – 503, NDUKWE ANYANWU JCA, said:

“In answer to this, the learned counsel to the 1st respondent submitted that over fourteen thousand registered voters in the two wards were disenfranchised. The Learned Counsel to the 3rd – 9th Respondents submitted that the tribunal did not raise the issue of disenfranchisement suo motu. All the parties agreed that election were held in three out of the five wards. The lower tribunal also found as a fact that over fourteen thousand registered voters could not vote in these two wards.”

This court observed inter-alia and held that a party who complains of failure to hold an election in some wards still has the duty to establish before the court, that such failure actually affected its fortune of success at the polls.

The Appellants further referred the court to the decision of the Tribunal on pages 913 – 914 of the record to this effect.

“Now coming back to the poser raised earlier as to whether the petitioners have discharged the burden placed on them by law to establish their case. See JANG -VS- DARIYE (2006) 2 EPR PG. 839 AT 847. We deem it necessary to go back a little to the evidence led by both parties……………… In this particular case even though the petitioners subpoenaed INEC to produce Electoral maters, when they were produced, they shield away form (sic) using them. Only the Respondents used some.”

Thereafter, Appellant drew the attention of the court to page 902 of the record wherein it is shown that forms EC8A which are election result form for the disputed areas were tendered as items 2 and 4 of the documents tendered by the 1st and 2nd Respondents. The Appellants proceeded to page 919 wherein the Tribunal held “In addition to the above Exhibits R1, R2 – R2(1) to R2(l8), R3(1) to R3(15), all raised a presumption that election took place in the disputed areas.

In this appeal, the Appellants having complained of irregularity did not proceed to show how the irregularities affected their fortunes in the polls. In fact the disparity in the result of the election is so wide that even if they do, it will have an insignificant impact. Therefore, with due respect, the Judgment of the Governorship and the Legislative House Election Petition Tribunal must not be interfered with. The Appellant seemingly abandoned their issues before the court and same was accordingly struck out as the Appellant has strayed away from the substance of the petition.

Further in humbly view, the Appellant failed to show how the act of the Respondents had effected them aversely at the polls and if indeed it did, same has not been proved before the Tribunal.

This was the position the apex court found in the celebrated case of GENERAL MUHAMMANDU BUHARI -VS- INDEPENDENT NATIONAL ELECTORAL COMMISSION & 4 OTHER (supra) delivered on 12th day of December, 2008, where in the majority Judgment KATSINA-ALU JSC had this to say:

“Without doubt the non-serialization of the ballot papers whether in the entire country or some states of the federation, if proved would constitute an infraction or non compliance with the provisions of the Electoral Act. However the law is clear that non observance of the rule or principles stated under the Act such as that in section 45(2) must be such that would amount to conducting an election in a manner contrary to the principle of an election by ballot and must be so grave as to satisfy the court that it did affect the result of the election: See BUHARI -VS OBASANJO (2005) 13 NWLR (PT. 941) 1; SORUNKE – VS- ODEBUNMI (1960) SCNLR 414.”

See the unreported decision of the Apex court in the case of ABUBAKAR -VS- YAR’ADUA & 2 OTHERS delivered on 12th December, 2008, in suit No SC.57/2008, also does not support the contention of the Appellants for nullification of the election. This is not the position as the Respondent’s counters were very damning, and have been reflected earlier on. In my view the Tribunal was perfectly in order in its evaluation of the evidence and the Appellant failed to show how the Tribunal had not acted judicially and judiciously.

Consequently, I resolve Issue II in favour of the Respondents. From the foregoing, this appeal lacks merits and is hereby dismissed. The decision of the Tribunal is accordingly upheld.

There is no order as to cost.

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Other Citations: (2009)LCN/3094(CA)