Mr. C.I.D. Maduabum V. Hon. Ben Chuks Nwosu & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L.TSAMIYA, J.C.A.

This is an appeal against the decision of the Governorship/National Assembly and Legislative House Election Tribunal sitting in Awka, Anambra State, delivered on 3rd March 2008 in Suit No. EPT/AN/NAEHR/19/2007.

The facts of the case for the appellant briefly are that, the appellant was sponsored by the peoples Democratic party (PDP) (the 5th respondent in this appeal), to contest the’ election. That the election in the Federal Constituency Nnewi North/Nnewi South Ekwusigo) Scheduled for 21st April 2007 did not take place on the scheduled day because of obstruction on the distribution of election materials, threats of violence against INEC Officials and disruption of the conduct of the election. As a result of these unforeseen circumstances the election of 21st April 2007 was postponed to 22nd April 2007 by INEC and the postponement from 21st April – 22nd April 2007 was communicated to the entire federal constituency through the “National Orientation Agency, the use of town criers, public address systems, Radio announcements and notices given by both the Resident Electoral Commissioner, Electoral officers in the constituency, and the Notice was pested also at strategic places in the L.G.A. That after the postponement of the said election, the election materials were returned to the INEC Office at Awka. That on 22nd April 2007, elections were duly conducted in all the polling booths in the said Federal constituency, after which collation took place starting from ward, local government and the Constituency collation centres. It was the appellant, not a non-existent PDP candidate, that was declared the winner of the election having obtained the highest majority of votes cast at the election. That it was the appellant, (vide judgment of the Federal High Court Abuja in Suit No. FHC/ABJ/CS/90/2007) who was the PDP Candidate for the election. That the postponement of the election to 22nd April 2007 was made after due consultation with the agents of the concerned political parties, and accepted same as the only viable option.

For the 1st and 2nd respondents, the facts of their case briefly are” that the 1st respondent was the candidate sponsored by the 2nd respondent and the 2nd respondent is a political party that participated in the election in the Federal Constituency. That the said Federal Constituency consists of three local governments, namely Nnewi North, Nnewi South and Ekwusigo. That the National Assembly elections were fixed to take place nationwide on 21st April 2007. That the appellant and one Dr. Martin Igbokwe, the 4th respondent in this appeal were members of the PDP. That neither of these two persons, had at the time of the said election secured the sponsorship of the PDP to contest the election on its platform. That on 21st April 2007, the materials for the election arrived late at INEC Office in the said three Local governments. That as a result of late arrival of the materials it became impossible to distribute them to the polling booths. Consequently elections were not conducted in the Federal Constituency on 21st April 2007 and automatically no results could be generated from any of the polling booths. Notwithstanding, the INEC in explicably, declared what it calls, “PDP Candidate” (which is a non-juristic person), the winner of the election with 91,923 votes. That, since no elections in the said Federal Constituency conducted, the figures credited to the alleged “PDP Candidate”, as winner of the election, were made up from non-existent polling and collation results of the election. Dissatisfied, the 1st and the 2nd respondents, as petitioners, challenged the results of the election allegedly conducted. The 1st and 2nd respondents in their joint petition averred that:-

(a) the election is invalid by reason of substantial non-compliance with the Provisions of the Electoral Act 2006 and the guidelines thereof,

(b) the election is in valid by reason of corrupt practices.

(c) That the announcement of the non-existent “PDP Candidate”, as winner of the election is illegal, unlawful, null and void

The 1st and 2nd respondents closed their petition with a prayer which reads:

“(1) An order nullifying the elections allegedly conducted, and

(2) An order compelling the 5th – 97th respondents to conduct fresh polls for the said Constituency.”

The petition proceeded to full trial and the tribunal, after hearing the parties, delivered its decision upholding the 1st and 2nd respondent petition setting aside the return made and ordered fresh election be conducted.

Being dissatisfied with the said decision of the tribunal the appellant who was the 1st respondent in the petition appealed to this court on 24 grounds of appeal challenging the decision of the tribunal.

In accordance with the rules of this court, appellant filed his brief of argument on 7th July 2008 and the Reply brief on 27th October 2008. The 1st and 2nd respondents on receipt of the appellant’s brief of argument filed their, 1st and 2nd respondents’ brief on 13th October 2008. The 5th respondent (PDP) the political party which was the 4th respondent in the petition before the tribunal, did not file any brief.

So also the 3rd respondent (PDP Candidate) who was the 1st respondent at the tribunal. The 4th respondent (Dr. Martin Igbokwe) was the 2nd respondent at the tribunal did not also file any brief. The 6th – 97th respondents in this appeal who were the 5th – 92nd respondents at the tribunal filed their joint brief of argument on 19th August 2008.

At the hearing of this appeal on 28th October 2008 all the parties were represented except 3rd and 4th respondents. The appeal was heard without these others’ briefs. The appellant in his brief of argument formulated eleven issues from his 24 grounds of appeal, while the 1st and 2nd respondents formulated eight issues from the appellant’s grounds of appeal and 6th – 97th respondents formulated only one issue for consideration in this appeal.

The appellant’s issues are:

1. Whether the Tribunal was right when it sustained the petition and nullified the return of the Appellant made with respect to an election of 22nd April, 2007 when there was no relief sought in the petition with respect to a return made on 22nd April, 2007. GRROUNDS 22 and 23
2. Whether the Tribunal was right in determining the petition on the merits having regard to its finding that PDP was not a juristic person, section 144(2) and paragraph 45 of the 1st Schedule to the Electoral Act, 2006 GROUND 17
3. Whether the Tribunal was right when it decided the case on the premise that the burden was on the Appellant and INEC to establish that the election the subject matter of the petition took place on 22nd April, 2007 and not on the 1st and 2nd Respondents to establish that the election did not take place. GROUND 1 and 2
4. Whether by a proper appreciation of the evidence led by both parties the Tribunal was right when if held that the election the subject matter of the petition was not postponed nor indeed held on 22nd April, 2007 GROUNDS 4,9, 10, 15, 16.
5. Whether the Tribunal was right in impugning the results of the election on the grounds that they were deliberately mutilated and altered when issues were not joined on those matters. GROUNDS 5 and 6
6. Whether the Tribunal was right in applying the principle of law enunciated in ESANGBEDO v THE STATE (1989) 4 NWLR (Part. 113) 57 to the circumstances of this case conducted in accordance with the Practice Direction as to filing of statements on Oath GROUND 7
7. Whether the Tribunal was correct in the assessment of the evidence of RW17A and the documentary evidence tendered on the crucial issue of the declaration of result forms. GROUNDS 8, II, 12, 13.
8. Whether the Tribunal was right when it held that the 1st and 2nd Respondents successfully rebutted the presumption in favour of results of an election. GROUNDS 14, and 20.
9. Whether the Tribunal was right when it held that the Petitioner’s Reply did not contravene paragraph 16(i)(a) of the 1st Schedule to Electoral Act, 2006
10. Whether the Tribunal in accepting the evidence of 1st and 2nd Respondents’ witnesses took into consideration matters which ought not to have influence it. GROUND 19.
11. Whether the Tribunal was right in holding that there was no PDP candidate for the election and that RW 17A made two returns. GROUND 21.

The 1st and 2nd respondents issues are:

1. Whether the Petitioners’ Replies filed by the Petitioners complied with Paragraph 16 of the First Schedule to the Electoral Act 2006? (Grounds 3 and 18 of the Notice of Appeal)
2. Whether the Tribunal was correct in its finding that the election into the Nnewi North/Nnewi South/Ekwusigo Federal Constituency which was scheduled to hold on 21 April 2007 was not postponed to 22 April 2007 and did not hold on 22 April 2007? (Grounds 4, 9, 10, 15, 16 and 23 of the Notice of Appeal).
3. Having regard to the pleadings, was the Tribunal right to have placed the evidential burden on the Appellant to prove that the election held on 22 April 2007? (Grounds 1 and 2 of the Notice of Appeal)
4. Whether the Tribunal correctly assessed the evidence of the parties before it arrived at its decision to nullify the election? (Grounds 7, 19 and 24 of the Notice of Appeal)
5. Whether the Tribunal was correct in its finding that the Petitioners had rebutted the presumption of authenticity raised by law in favour of the result tendered by the Appeal. (Grounds 5, 6, 14 and 20 of the Notice of Appeal)
6. Whether the Tribunal was correct in its finding that the Constituency Returning Officer returned “PDP Candidate” and not CID Maduabum as the winner of the election and that this rendered the return null and void. (Grounds 8, 11, 12, 13 and 21 of the Notice of Appeal)
7. Having held that the return was made in favour of a non juristic person, was the Tribunal right to have nullified the election? (Ground 17 of the Notice of Appeal
8. Whether based on the reliefs sought by the Petitioners the Tribunal was right to have nullified the return of PDP Candidate as the winner of the election? (Ground 22 of the Notice of Appeal)

The 6th – 97th respondents lone issue reads:

1. Whether the lower Tribunal was right in nullifying election and the return of the 3rd Respondents/Appellants made on 22nd April, 2007, considering the state of the pleadings and evidence adduced at the trial.

Having examined the issues formulated by the parties in this appeal, it appears to me that the eight issues distilled by the 1st and 2nd respondents are more appropriate and sufficient for the determination of this appeal. I, therefore adopt the said issues for the determination of this appeal.

Having adopted the issues distilled by the 1st and 2nd respondents, I intend to confine myself to the submissions of all the counsel, relevant to the issues only in the determination of this appeal.

ISSUE NO.1

This issue is the same as appellant’s issue NO.9.

The complaint of the appellant under this issue is that the Replies of the 1st and 2nd respondents to the respondents Reply to the petition did contravene paragraph 16(i)(a) of the 1st Schedule to the Electoral Act, 2006.

The appellant in his argument referred to paragraph 16(i)(a) of the 1st Schedule to the Electoral Act, 2006, which he reproduced in full in his appellant’s brief. He pointed out that the said paragraph 16(i)(a) disallowed the 1st and 2nd respondents from introducing in to their petitioners’ Reply, new facts, grounds or prayers tending to amend or add to the contents of the petition. He further pointed out that, as no facts or grounds relating to the election held on the 22nd April, 2007, was contained in the 1st and 2nd respondents’ petition, and the reliefs in the petition relates to the election of 21st April, 2007, any facts or grounds as to the election of the 22nd April 2007, introduced by the 1st and 2nd respondents in their petitioners’ Reply is not just tending to add or amend the petition as prohibited by paragraph 16(i)(a), but amounts to an amendment or addition to the petition which is not allowed by the said provisions of the Electoral Act. The case of Adepoju vs. Awoduyilemi (1999) 5 NWLR (Pt.603) 364 at 383 and the provisions of paragraph 16(i)(b) of the 1st of the Schedule to the Electoral Act 2006 were cited and relied on in support of his submission.

The appellant also submitted that the 1st and 2nd respondents’ petition questioned a non-existent election of 21st April 2007 which was not the basis of the return made by the Returning officer, therefore, the petition is contrary to the provisions of section 140(i) of the Electoral Act 2006 and as such the jurisdiction of the tribunal was not properly invoked and the result is that, the tribunal lacks the competence to grant the relief sought in the petition. He pointed out that the 1st and 2nd respondents in a clever way sought to bring in, facts and grounds relating to the 22nd of April, 2007 election into the petition through the back door. According to his contention, this is contrary to the provisions of paragraph 16(1) of the 1st Schedule to the Electoral Act, 2006. He finally stated that it is in congruous to sustain a petition, questioning an election of 21st April, 2007 based on what transpired on 22nd April 2007. That the events of 22nd April 2007 cannot be used to sustain reliefs claimed with respect to 21st April, 2007. He urges this court to allow the appeal, otherwise, confirming the decision of the tribunal will amount to allowing the tribunal to grant what was not asked for. The 1st and 2nd respondents in response, contended that the argument of the appellant on the incompetence of the 1st and 2nd respondents’ Replies on the ground of non-compliance with paragraph 16(i) of the 1st Schedule to the Electoral Act, 2007, is too late in the day at this stage of hearing the appeal, because, according to the 1st and 2nd respondents, paragraph 49(2) of the 1st Schedule to the Electoral Act, 2006 required the appellant to challenge the competence of the Replies “within a reasonable time” and when they “had not taken any fresh step in the proceeding after knowledge of the defect.” That the appellant and other respondents in the petition at the tribunal did not challenge the competence of the Replies timeously and therefore are deemed in law to have waved their right to object to the competence of the petitioners’ Replies and the statements attached thereto. He further contended that by participating fully in the pre-trial hearing without raising any objection to the Replies, the appellant’s participation amounted to “taking a fresh step.” The case of Abubakar Vs. INEC (2004) (NWLR (Pt.854) 1 at 235 was relied in support of this submission.

On non-compliance with the provisions of paragraph 16(i) of the 1st Schedule to the Electoral Act, 2006, the 1st and 2nd respondents submitted that their replies complied fully with the provisions of the said paragraph 16(i) of the Electoral Act 2006.

On the appellant’s contention that the 1st and 2nd respondents, petitioned a non-existent election of 21st April, 2007 instead of the election of 22nd April 2007, the 1st and 2nd respondent submitted that, an examination of the petition will show that it is premised on a return having been made based on an election scheduled for 21st April 2007 which did not hold. He further submitted that since in their defence to the petition, the respondents, in their petition stated that the election of 21st April, 2007 was postponed to and held on 22nd April 2007, this is a new issue of fact which the petitioners were bound to reply to, in order to lead evidence to show that it was not true; and that their Replies did not amend or add to the contents of the petition, rather, the Replies set out facts in opposition to the respondents’ Replies which supported their case to the fact that no elections were held before the return was made. In conclusion on this point the appellant submitted that the tribunal was right to have held that the petitioners Replies complied fully with paragraph 16(i) of the 1st Schedule to the Electoral Act 2006, and urges this court to answer this issue in favour of the 1st and 2nd respondents.

The learned counsel for 6th- 97th respondents contended that their reply to the petition did not introduce any new issue that will warrant the filing of reply by the petitioners.

In my view, the only question to be determined in this issue relates to the interpretation of the provisions of paragraph 16(i) of the 1st Schedule to the Electoral Act, 2006 which provides as follows:

PETITIONER’S REPLY

“(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the respondent’s reply a petitioner’s reply in answer to the new issues of fact, so however that:

(a) the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him, and

(b) the petitioner’s reply does not run counter to the provisions of subparagraph (1) of paragraph 14 of this Schedule.

In election petitions the petitioner’s reply concludes the pleadings. The respondent – unlike the situation in ordinary civil proceedings where the defendant is entitled to a rejoinder to the plaintiffs reply to a statement of defence, is not entitled to file further pleadings after the petitioner’s reply has been filed. But a casual reading of the Electoral Act 2006, particularly the provisions of paragraph 16(1) thereof, conveys the impression that a petitioner is permitted to file a reply if the respondent to the petition in his reply raises new issues of fact in defence of his case which the petition has not dealt with, but in doing so, the petitioner’s reply shall not bring in new (acts. grounds or prayers tending to amend or add to the contents or the petition. (Underline mine for emphasis). The main use of reply, according to the above provisions of paragraph 16(i), is to answer allegations, which a respondent to the petition who raised new issues of facts, not arising from the petition. It therefore behoves, a petitioner to deal with these new facts by either admitting, traversing them or himself pleading to them by way of confession and avoidance. He can only do these by filing a reply.

The appellant contended that the 1st and 2nd respondents’ Replies ran foul of the said paragraph 16(i) because they sought to bring in facts and grounds relating to the 22nd April 2007 election into the petition through the back door in their replies at the tribunal to the replies of 3rd -5th and 6th – 97th respondents, and by so doing the previsions of the said paragraph 16(i) is contravened.

An examination of the petition and the defence will show that the respondents at the tribunal in their defence, admitted that the election was originally scheduled for 21st April 2007 but claimed that on the same day of 21st April 2007, INEC postponed the election to 22nd April 2007 on which day the election was alleged to have been held and a return was made. In my view, this defence by the respondents raises a new issue of facts which the petitioners were bound to respond to in order to lead evidence in rebuttal, as provided under the said paragraph 16(i). The 1st and 2nd respondents replies, in my view, did not offend the provisions of section 16(1) of the 1st Schedule to the Electoral Act 2006 and that the tribunal in my view was right to have held that the petitioners’ Replies filed by the petitioners complied with the said paragraph of the Electoral Act 2006. This issue together with its grounds of appeal failed and dismissed against the appellant.

ISSUE NO.2

This issue is similar to issue No.4 of the appellant’s issue. This issue is premised on the fact that the election which ought to be held on 21st April 2007 was alleged to have been postponed to 22nd April 2007 and a return was also allegedly made on that 22nd day of April 2007. The main complain of the appellant under this issue is that by a proper appreciation of the evidence led by both parties before the tribunal, the tribunal was wrong when it held that the election, which is the subject matter of the petition was not proponed (sic) nor was indeed held on 22nd April 2007. The appellant submitted that it is not in dispute that the election did not hold on the scheduled day of 21st April 2007 and also that Exhibits A and C tendered by 1st and 2nd Respondents proved that the election was held on 22nd April 2007 and return was also made on that day. He also submitted that the tribunal was wrong to have believed that all the evidence they led and which proved the postponement of the election from 21st April 2007 to 22nd April 2007 were unbelievable.

In response, the 1st and 2nd respondents submitted that they conceded that the election was originally scheduled for 21st April 2007 but they denied the fact that on 21st April 2007 the election was postponed to or held on 22nd April 2008.

The 6th – 97th respondents in their brief of argument emphasized that the 1st and 2nd respondent’s petition clearly challenged the election and the subsequent return of 21st April 2007 but not the election and the return of 22nd April 2007. They also said that they led credible witnesses which proved that the election of 21st April 2007 was postponed to and in fact held on, 22nd April 2007, therefore no further proof is required from the appellant.

I have carefully and meticulously gone through both the records and submissions of both parties in their respective briefs in relation to this issue. I have observed that the bone of contention of the parties is not whether the election was originally scheduled for 21st April 2007 but whether or not the election scheduled for 21st April 2007 was postponed to 22nd April 2007, and whether or not the election was ever held on 22nd April 2007.

In his brief of argument the appellant has argued that 1st and 2nd respondents’ reply to the reply of the INEC, admitted that the election was postponed, therefore he had discharged the onus and had proved that the election was postponed to 22nd April 2007. Similarly, he submitted that since the 1st and 2nd respondents tendered Exhibit ‘A’, they had conceded that the election was postponed from 21st April 2007 to 22nd April 2007.

A clear reading of the whole of paragraph 3 of the 1st and 2nd respondents’ Reply will show that they infact challenged rather than admitting the appellant’s assertion that, the election had been postponed to 22nd April 2007. Also, paragraph 2(e) of the 1st and 2nd respondents’ reply to the reply of the 2nd and 4th respondents in the petition, makes it clear that they did not admit that the election had been postponed to 22nd April 2007. Therefore, I did not agree with the appellant’s contention that 1st and 2nd respondents admitted that the election scheduled for 21st April 2007 had been postponed to 22nd April 2007.

Next question is whether by tendering Exhibit ‘A’, 1st and 2nd respondents admitted the postponement of the election to 2nd April 2007, and thereby relieved the appellant of the burden of proving that the election was postponed. I have examined Exhibit ‘A’ and I am of the view that it did not purport to postpone any election from 21st April to 22nd April 2007, rather it announces the continuation of the election started on 21st April 2007 in the Local Government Areas where voting could not be concluded on that 21st April 2007, to 22nd April 2007. The relevant portion of Exhibit ‘A’ reads as follows:

‘PRESS RELEASE’

“The Independent National Electoral Commission Anambra State wishes to direct that the Local Governments where voting could not be concluded on Saturday 21st April 2007 have been allowed to continue the exercise on 22nd April 2007 from 9.00 am. To 3.00 pm.”

On the appellant’s pleadings, his case was that the notice, above stated, was to the effect that the election ‘had been postponed’, not ‘voting would continue’. The said Exhibit ‘A’ means that voting commenced in the affected Local Government/Areas, on 21st April 2007 but could not be concluded would continue voting on 22nd April 2007. In my view, Exhibit ‘A’ did not postpone the election and could not amount to an admission that the election was held on 22nd April and not 21st 2007.

Having decided that there was no admission on the part of the 1st and 2nd respondents, the next question is whether or not the appellant and the other respondents in the petition, proved that on 21st April, 2007 the election was postponed to 22nd April, 2007.

In the course of the trial before the tribunal, the appellant gave evidence and called 14 witnesses and the evidence of his witnesses (RW2A – RW14A) was not useful as regards of proof of whether the election was on 21st April postponed to 22nd April, 2007 because they admitted that they were not present at any of the INEC Offices at the affected three Local Government Areas on the 21st April, 2007. Indeed the appellant himself under cross-examination stated that he was not consulted for the postponement, in any Local Government that he was not sure of the time he learnt of the postponement on 21st April, 2007 and that some of the agents were called to inform him about the postponement. The only direct evidence of the alleged postponement came from the Electoral Officers who gave evidence as RW18A – RW20A. The evidence of RW18A, the Electoral Officer for Nnewi North Local Government as regards the postponement of the election is as follows:

“The decision to postpone the election was taken when I got in touch with the Commissioner who told me that the election had to be postponed. He then sent a letter for the postponement.

Yes the decision to postpone the election was taken finally by REC.

I received the letter from the headquarters directing for the postponement of the election between 4.30pm and 5.00pm”

The evidence of RW19A as regards the postponement of the election runs as follows:

“They came back again and told me it was too late and demanded for the postponement of the election. I relayed on the request back to my headquarters initially the headquarters said election time have been extended to 10.00 pm. It was not acceptable to them.

Yes I was communicating with REC on 21/04/07 while he was holding meeting with party agents. It was by telephone that we were communicating. The (first) communication was between the hours of 4- 5pm. The REC finally gave his approval for the postponement of the election between 4.05 -5 pm.

I received the letter to postpone the election from the REC on 21/04/07 between 5.10 – 520pm.”

The evidence of RW20A as regards the postponement is also contained at pages 494, L.18, 496, L.22 – 33, 497 L.6 and L. 12-13, as follows:

“RW20A: I cannot say what time the REC’s written directive to me to postpone the election came from Awa.”

It will be seen from the above that the three Electoral Officers claimed that the Resident Electoral Commissioner (REC) was the person who postponed the election and that the directive to the witnesses above, to postpone the election was in writing. The oral evidence of RWI8A – RW20A that the REC postponed the election was hear-say. That the witnesses having admitted that they received official communication in writing from the REC directing that they should postponed the election, the only admissible evidence of the postponement was the oral evidence of the REC that he directed that postponement of the election or the letters the REC wrote to the Electoral Officers informing them that the election had been postponed.

See Summit Finance Co. Ltd. vs. Iron Bar & Sons Ltd (2003) 17 NWLR (Pt.848) 89 at p.114. In the instance case, the appellant should have produced the three letters to the Electoral Officers. Unfortunately, no where in the appellant’s Reply or any reply filed by the other respondents to the petition is there any reference to a letter written to the electoral officers by the REC directing them to postpone the election. Paragraph 9 of the appellant’s Reply referred to a Notice given by REC. This Notice is not a letter. It follows therefore that the appellant failed to proved that the election was postponed by REC/INEC. Also the appellant totally missed the point when he argues in his brief, (paragraphs 8.04, 8.05, 8.06, 8.07 8.09, 8.10, and 8.11 at pages 50 – 53 thereof), that he pleaded and tendered as Exhibits before the tribunal, the letters referred to by the tribunal, because the letters the tribunal was referring to in its judgment at page 734, L.9-15, were the letters which the three Electoral officers claimed were addressed to them by REC and which they all claimed they received, directing them to postpone the election to 22nd April 2007.

However, it is important to note that there is no explanation why, if these three letters exist, they were not pleaded and tendered in Evidence. Dealing with such a situation in A.G. Anambra State vs. A.G. Federation & Ors. 22 NSCQR (Pt.11) 572 at 625, the Supreme Court held that:

“It is long settled that a party must make out his case by the best available evidence. It is a fundamental principle of our legal system in respect of facts averred that where weaker, tenuous or in sufficient or feeble ill effectual evidence is given then it would amount to a case of failure of proof. ”

Among the respondent in the petition was the Resident Electoral Officer (REC) but he did not give evidence before the tribunal. There was no explanation why he could not appear to testify as to what role he played in the alleged postponement. In Agbi Vs. Ogbe, 26 NSCQR (Pt.11) 1257 at 1298 – 1299, this court held that, where a witness who could give credible evidence in proof of a particular matter are left out, the Court is entitled to invoke the provisions of section 149(d) of the evidence Act, that the evidence which could be and is not produced would if produced, be unfavourable to the person who with hold it.

To show how unreliable the evidence of appellant as regards the alleged notice of postponement was, it is necessary to refer to the evidence of RW6A, one of the witnesses called by the appellant. Under Cross-examination, this witness claimed that on 21st April 2007 he saw a notice of postponement of the election at the entrance of the village town hall on the 21/04/07 in the evening around 4.00 pm. He also said that the notice he saw was typed one, in bold letters with computer machine. RWI9A, in his evidence told the tribunal that he received, between 5.10 and 5.20 pm, the letter from the REC to postpone the election, and that he issued Exhibit R1022 (the notice, postponing the election) between 5.30 and 6pm on 21/04/2007. In this circumstance who among them is to be believed? Again, RW4 claimed that he saw that notice at 12 noon on 21st April 2007 postponing the election.

From the above evidence of the appellant’s witnesses, I am of the view that the appellant failed to prove that on 21st April 2007 the election was postponed to 22nd April 2007. This issue is answered against appellant.

ISSUE NO. 3

This issue is similar to appellant’s issue NO.3 which is on whose burden the proof lies.

The complaint of the appellant under this issue is that the tribunal was wrong to have placed the onus on him and INEC to prove that the election was held on 22nd April 2007 and not on the 1st and 2nd respondents to establish that the election did not take place.

In his brief of argument, the appellant submitted that it is always the petitioner’s contention that the election was not duly conducted, while for the respondents it was contended that the election was duly conducted. That if this scenario is examined, then the petitioner is invariably averting the negative. He further submitted that there was no burden on the appellant and INEC to establish that the election conducted on 22nd April, 2007 was unassailable. That the burden, rested on the 1st and 2nd respondents who were petitioners.

The appellant also submitted that the tribunal failed to evaluate the evidence of the 1st and 2nd respondents who called no voters with duly accredited voter’s card to show that they were unable to vote or polling agents, to establish that INEC did not produce election materials on 22nd April 2007. He finally submitted that this error of the tribunal substantially affected the judgment of the tribunal and he urged this Court to so hold.

In response, 1st and 2nd respondents submitted that the tribunal rightly decided the issue in dispute when it placed the burden on the appellant to prove that the election was infact held in the constituency on 22nd April 2007. That this point must be made so, since it was the appellant who was asserting that, election was held on 22nd April 2007, the onus, therefore must be on him to prove it. That it was only after the appellant had discharged that burden, then the burden would shift to the 1st and 2nd respondents as petitioners, to show that such election was not conducted in compliance with the provisions of the Electoral Act.

In their brief of argument the 6th to 97th respondents did not make any submission on this issue no.3.

Based on the arguments of parties in their respective briefs, the bone of contention here is on whose side the burden of proving that, election into the affected Local Government Areas was actually held on 22nd April 2007. The appellant pleaded in his reply to the petition that the alleged postponement was promptly communicated by INEC from 21nd April 2007 through to 22nd April 2007 to the Local Government Areas through the National Orientation Agency (NOA), through the use of town criers, public address system, radio announcements, and the notices given by the REC and Electoral officers for Nnewi North/South/Ekwusigo Federal Constituency and pasted in public and strategic places in the towns comprised in the Local Government Area. He further pleaded that, on 2nd April 2007, elections were held and that he was returned as the winner of the election. According to the appellant’s contention, it is the law that with the presumption of genuineness of official act, which, this result of an election are clothed with, a petitioner who seeks to impugn them must carry the burden of proof.

From the record of this appeal there is no doubt that the 1st and 2nd respondents’ bone of contention is that no elections were ever held in the Federal Constituency on 21st April, 2007. That fact has not been denied. In other words that fact has been admitted by the appellant and other respondents, who argued that the elections were actually conducted on 22nd April 2007. It is settled that, what is admitted needs no further proof. The question is on whom does the burden of proof lie? Although the case law is articulate on the point that election petitions are sui generic and therefore may not be strictly departmentalized into civil or criminal proceedings, I am of the view that, the assertion that elections were held in the Federal Constituency, falls into the domain of civil proceedings. Accordingly, I invoke section 137 of the evidence Act on the issue of burden of proof. By sub-section (1), in Civil Cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given, if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. By subsection (2), if such party adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have dealt with.

The implication of section 137 of the Evidence Act in this contest is that, the burden of proof in respect of postponement to and actual holding of the elections on 22nd April is on the appellant and other respondents, this is because (1 this is a situation where the defendant is required by the statute of the pleadings to satisfy the statutory burden; (2) neither section 137 nor any other section in part VII of the evidence Act provides that a plaintiff must discharge the first burden of proving his case, they are the persons that the judgment of the tribunal will be given against, if no evidence is produced on either side. And this is consistent with the common law principle that the party who asserts has a legal duty to prove the correctness of his assertion.

It is my view on this issue that the appellant having pleaded that the election of 21st April 2007 was postponed to 22nd April 2007 and was allegedly held on that 22nd April 2007, the evidential burden of prove lies on him and other respondents to produce evidence to show that the election was actually held on 22nd April 2007. The question that one may ask is, at the close of pleadings, if no evidence was called on either side, whose case would fail? The answer is the appellant’s case would have failed because he had admitted that no election held on 21st April 2007 and instead asserted that the election was postponed to and held on 22nd April 2007. This is Inconsonance with the provisions of section 135(1) of the Evidence Act which provides that:

“Whoever desires any court to give judgment as to any legal right or liability dependent on facts which he asserts must prove that those facts sexist.”(sic)

See Nnachi vs. Ibom (2004) 16 NWLR (Pt.900) 614 at 637.

For the reasons stated above, the tribunal’s decision on this issue is, in my view correct and is affirmed. This issue therefore, is resolved against the appellant.

ISSUE NO.4

This issue is on the assessment of evidence before the tribunal. The question is whether or not the tribunal correctly assessed the evidence of the parties, particularly RW 17A before it arrived at its decision to nullify the election.

In his brief of argument, the appellant contended that the tribunal did not correctly assess the evidence of RW1A – RW14 and that the principle enunciated in State vs. Esangbedo (1989) 4 NWLR (Pt.11) 57 cannot apply in this circumstance because of the new system of frontloading which requires that witnesses statements on oath must be filed by the parties in place of oral evidence in-chief. He also contended that under this new system, it is inevitable that a legal practitioner should prepare these written statements of witnesses on oath as these witnesses are not learned and at the same time, cannot on their own prepare their respective written statements on oath as is required by law.

The appellant further contended that, if the evidence led by his witnesses under cross-examination is once again revisited and appraised by this court, it will realize that, notwithstanding the respective written statements on oath of his witnesses, each of them under cross-examination restricted himself strictly to what he personally did, heard, saw or observed in the whole scenario that played out on the 21st April, 2007 and 22nd April 2007. He cited some instances where the tribunal did not consider what was contained in the respective written statements on oath of his witnesses, while some of his witnesses under cross-examination maintained that they saw notices pested at market squares, church premises etc, other witnesses also called by him maintained that, where they saw notices of the postponement of the election of 21/4/07 was at the village square and not at the market square or church premises. He contended that these are clear indications that his witnesses did not come to chorus similar evidence but were resolute and refracted themselves to what they personally observed, heard or saw on both 21st and 22nd April 2007 and the particular source from information where they personally derived their respective information. That the tribunal ought to have taken cognizance of the evidence of his witnesses led by him under cross-examination because they displayed their honesty and sincerity, and gave quite dissimilar evidence instead of harping only on the fact that their written statements on oath are similar.

In respondent, 1st and 2nd respondents submitted that the arguments in the appellant’s brief lack merit and substance. That the principles in Esangbedo’s case are applicable in this circumstance because the circumstance is the same. That the tribunal meticulously assessed the parties witnesses before arriving at the conclusion.

The 6th- 97th respondents did not make any contribution on this issue.

I have carefully appraised the arguments of both parties in their respective briefs in relation to the assessment of evidence. On issue of assessment of evidence of the parties, both appellant and 1st and 2nd respondents in this appeal respectively identified cogent evidence in proof of their case or disprove of the other party’s evidence based on which the tribunal has assessed the evidence and appraised the facts between the parties.

From the record, and in the course of the trial before the tribunal, it is shown that the 1st and 2nd respondents, (as petitioners,) called 15 witnesses and tendered Exhibits “A”-“D”, while the 2nd respondent (in the petition) gave evidence and in the course of doing so Exhibits R1 – R4 were tendered. The appellant called 15 witnesses and tendered Exhibits R5-R679. The 5th – 97th respondents called 5 witnesses and tendered Exhibits R680-R1130. The 4th respondent called one witness who testified as RW20. Thus on the whole 37 witnesses testified and a total of 1305 Exhibits were tendered.

In assessing the evidence of the witnesses the tribunal stated as follows:

“We have gone to this length in the consideration and review of the salient aspects of the witnesses evidence which directly concern this issue in order to bring out dearly (sic) the clarity, truthfulness and unambuiguity of the testimonies of PW1A – PW15A as opposed to that of RW1A-RW20A who clearly came with a mission and are blind to the fallacy apparent in their various testimonies.

In particular the written depositions of RW1A-RW14A all of which seemed to have been produced in the same mechanical way. By and large, it is only the names of the witnesses, their addresses and signatures that differentiated the deposition. Otherwise the remaining paragraphs are the same word for word. It was as if the statements had already been printed in anticipation of the witnesses whose names will be filed in later. That is why almost all the written deposition contains the same number of paragraphs and the paragraphs of the same depositions.”

“Therefore when one witness comes in to state what another witness said verbatim it will raise a suspicion that their testimonies were preconceived concocted and fabricated and so stand discredited. See AJADI vs AJIBOLA (2004) 16 NWLR (PT.898).

Thus apart from the inherent contradictions and defects in the testimonies of RW1A-RW14A we are of the view that the similarities of the deposition of those witnesses are too obvious to be coincidental and we find them unbelievable and of no probative value whatsoever.”

The appellant from my observation did not appeal against the findings of fact contained in the above portion of the judgment of the tribunal and in my view, he is deemed to have accepted them as true.

To start with, on examination of the written statements on oath of RW1A – RW14A, who were witnesses called by the appellant, these witnesses claimed to have heard, seen and done exactly the same thing, without any discrepancies in their respective evidence. This was an indicative that the witnesses have been tutored, and could not have been telling the truth. Be it noted that 1st and 2nd respondents, (by virtue of the new system of frontloading which requires that witnesses statements on oath be filed by the parties to take the place of oral evidence in chief) also filed written statements on oath of their witnesses along with the petition. And from the records, I have seen that the 14 statements on oath of each of the 1st and 2nd respondents’ witnesses is different and cannot be said to have the same number of ‘paragraphs or repeat what each other said verbatim. See Ajadi vs. Aiibola (2004) 16 NWLR (Pt.898) 91, where this Court held that, where one witness comes in to chorus what the other witness said verbatim, it will raise a suspicion that their testimonies were pre-arranged and so stood discredited.

The appellant argued that under the new system, the legal practitioner prepared the written statements on oath of the appellant’s witnesses, so the written statements on oath were bound to contain the same facts and the witnesses were bound to be tutored. To this I said to him that, there was no evidence before the tribunal that a legal practitioner prepared the written statements on oath of his witnesses. Similarly, there is no requirement in the rules which says that only a lawyer can prepare such statements. Courts or tribunals are not interested in who prepares the statements of a party’s witnesses on oath and it is unacceptable to argue that the lawyer must in the present system prepare the statements on oath.

But ever if a lawyer prepares the statements of witnesses on oath, that lawyer is presumed to be aware of section 26 of the Evidence Act and ought to include in the statement on oath, only what the witness tells him and not what he imagines the witness should have seen or heard. It is difficult to understand how a proforma written statement on oath could have been prepared by counsel to cover the appellant’s 14 witnesses as if all of the witnesses were at the same place and at the same time.

One point to note is that, in this case, is a situation where 14 different persons who were in different places spread across the three local government Ares and 14 different towns coincidentally all saw, heard and did the same thing on 21st and 22nd April 2007. This to my view is not possible and I totally agree in this respect, with the tribunal, when it said that, ‘the similarities of the said deposition of those witnesses are too obvious to be coincidental and were therefore unbelievable and of no probative value.’ See Ajadi vs. Ajibola (supra).

The appellant, in his submission before this court, conceded that the evidence of his witnesses under cross-examination differed from what they stated in their written statements on oath, but submits that, notwithstanding what was contained in their written statement on oath under-cross examination, his witnesses “displayed their honesty as witnesses of truth by admitting only what they knew, heard, saw, or observed and how they derived their information,” even though this contradicted their written statements on oath. In law, if a witness in his evidence before the court contradicts his written statement on oath, it is referred to as a discrepancy, and if it is material, the witness will not be treated as a witness of truth. See Duggash vs. Bulama (2004) 14 NWLR (pt.892) 114 at 150.

The records show what impression the demeanor of RW17A made on the tribunal, that the witness was “very evasive” and hesitant to answer question.” Also RW17A the tribunal further said, was:

“The witness appears to be a very fraudulent person. A real crook. He chooses which questions to answer. ”

In determining the weight to be attached to the evidence of the witness special notice of the demeanor of the witness before it is taken. This is why the tribunal, in my view took into account the fact that the evidence of 1st and 2nd respondents were categorical, clear and cogent, the witnesses are gentle men who spoke gently with complete courtesy and looked quite responsible and before arriving at the conclusion the tribunal said:

“…. all gave credible evidence which was never discredited or eroded during cross-examination. We had no reason whatsoever to doubt their testimonies. Their testimonies were positive and consistent.”

The above holding of the tribunal definitely emanated from the uncontroverted evidence of the 1st and 2nd respondents’ witnesses and therefore not from the tribunal’s voyage of discovery. In my view if the evidence of 1st and 2nd respondents’ witnesses is placed in comparison with the evidence of the appellant, as the tribunal rightly did, it will show that the 1st and 2nd respondents established a more probable that no election took place on either 21st or 22nd April, 2007 and no announcement of any postponement made. The tribunals’ assessment of the evidence of both parties was right.

The court of Appeal will only overturn the judgment of a lower court/tribunal where the decision is perverse or wrong interference have been drawn from accepted facts, or wrong principles of law have been applied to facts. In this appeal, the appellant, in my view, has failed to show that the findings of the tribunal to wit: that on 21st April 2007 the election was not postponed to 22nd April 2007 and that no election was held in the constituency on 22nd April 2007 was perverse. See Wuam vs. Ako (1999) 5 NWLR (Pt.601) 150 at 161 and Ibodo vs. Enarofia (1980) 5 S.C. 52.

Since the tribunal in this case evaluates the evidence before it and correctly, in my view appraise the fact, this court as an appellant Court, will not substitute its own views for the view of the tribunal. See Hashidu vs. Goje (2003) 15 NWLR (Pt.843) 352, and Jang vs. Dariye (2003) 15 NWLR (Pt. 843) 436.

Finally, for what I said above, this issue is resolved against the appellant because the tribunal, as rightly submitted by 1st and 2nd respondents, meticulously assessed the evidence of parties witnesses before arriving at its conclusion. ISSUE NO.5

The question under this issue is whether or not the tribunal was right when it held that the 1st and 2nd respondents successfully rebutted the presumption in favour of result of an election.

In his brief of argument, the appellant submitted that the tribunal was not right when it held that the 1st and 2nd respondents had rebutted the presumption infavour of the election results, and he gave five reasons in his brief for challenging this decision.

He further submitted that a presumption that any election’s result declared by a returning officer is deemed authentic and correct. That the burden is therefore on the person who denies its correctness to rebut same and he relied on Jalingo vs. Nyame (1992) 3 NWLR (Pt.231) 538. He contended that no evidence was offered by the 1st and 2nd respondents in this matter, rather they sought to rely on unpleaded defects on the result sheets. Effect of these alleged defects were again not established as the register of voters was not tendered. The appellant also contended that since the petition questioned the results and conduct of the election held on 22nd April 2007, it was incumbent on the 1st and 2nd respondents to establish the effect of the alleged irregularities which rebutted the presumption of regularity of the results of the election of 22nd April 2007.

The 1st and 2nd respondents on the question of whether the glaring defects in the result sheets were pleaded, submitted that, in paragraph 4 of their petition, they set out the scores allegedly obtained by the candidates at the election. Thereafter, they pleaded that no election took place in the constituency. They also contended that, in paragraph 9 of their petition they pleaded as follows:

“Figures credited to the candidates in the election including the non existent “PDP Candidates” were made up from non-existent polling and collation results of the election wherein voting did not take place”

Also pleaded is the fact that; no results were generated from the polling booths which could be declared or posted on the notice board or website of INEC Further more, the 1st and 2nd respondents denied the assertion of the appellant that the defects in the results sheets tendered by the appellant were only pointed out in the address of the petitioners counsel.

The appellant’s contended that, in order to rebut the presumption of authenticity, the 1st and 2nd respondents must show that the results which are being faulted would substantially affect the out come of the election. The 1st and 2nd respondents submitted that in the circumstances of this case, the purpose of attacking the result is not to show that the appellant did not obtain the majority of the votes cast at the election in which case, it will be necessary to challenge some of the votes allegedly cast for the appellant. They finally submitted that there was sufficient material before the tribunal to justify its finding that the presumption of regularity had been rebutted.

The 6th – 97th respondents made no submission on this issue.

I have gone through both the records and arguments in the respective briefs in relation to this issue and in my view the question is whether proper interpretation and application of the presumption of regularity under section 150(1) of the Evidence Act was made by the tribunal in its judgment.

Evidence Act in section 150(1) provides:

“When any judicial or official act is shown to have been done in manner substantially regular, it is presumed that formal requisites for its validity were complied with”

Be it noted, by virtue of the above provision of the law, the result of any election declared by the Electoral Commission is presumed to be correct and authentic but such presumption is rebuttable and the burden is on the party who disputes the correctness and authenticity of the result to lead credible evidence in rebuttal. See Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1 at P.193, and INEC vs. Anyimba Ray (2004) 14 NWLR (Pt.892) 92 at 130.

Consequently, a petitioner challenges the return of the statutory respondents – INEC and its officials, on account of falsity of result. It is incumbent therefore on such petitioner to plead and produce in evidence the result stigmatized as false. Unless these two basic results are pleaded and proved the petition is not established as required and is bound to fail. This position of the law is informed by the principle that there is a presumption in favour of the released result to be authentic and correct. See Yusuf vs. Obasanjo (2005) 18 NWLR (Pt.956) 96, and Ojo vs. Esobo (1999) 5 NWLR (Pt.603) 444.

In his argument the appellant also argued that no evidence was offered by the 1st and 2nd respondents in this matter, rather they sought to rely on unpleaded defect on the result sheets. And that the effect of these alleged defects were again not pleaded and established as the register of voters was not tendered.

An examination of this issue together with its grounds 14 and 20 of the Notice of Appeal, will show that the appellant challenges the decision of the tribunal to the effect that the 1st and 2nd respondents (as petitioners) had rebutted the presumption of authenticity and correctness in favour of results of an election tendered by the appellant.

This challenges is based on the following arguments:

(1) The mutilations and alterations as well as other imperfections alleged to exist in the result sheets ought to have been specifically pleaded.

(2) The petitioners did not establish that the alleged imperfections in the result sheets substantially affected the result of the election.

(3) Since an allegation of mutilation of result or alteration of result is directed against the presiding officers, petitioners ought to have joined the presiding officers as parties to the petition.

(4) Exhibit R681 was not impugned.

I wish to point out to the appellant that these positions are clearly not available in the circumstances of this case. On non pleading of the defects in the result sheets I wish to state that these defects are clear and glaring. Careful examination of the petition, particularly paragraph 4 thereof it is shown that the 1st, 2nd respondents set out the scores allegedly obtained by the individual candidates at the alleged election. Thereafter, they also pleaded that no election took place in the constituency. In paragraph 9 of their petition, they pleaded:

“Figures credited to the candidates in the election including the non existent “PDP Candidate” were made up from non existent polling and collation results of the diction wherein voting did not take place.”

They further pleaded that, no results were generated from the polling booths which could be declared or posted on the notice board or website of INEC. Based on the above and in respond to it, the appellant himself and other respondents in the petition, pleaded that the elections were duly conducted and results were generated from the polling booths, and the alleged results of the election were even tendered in evidence by the appellant as Exhibits. The purpose of pleading is to afford the opponent the opportunity of knowing the case he faces. From the pleadings, the appellant and other respondents in my view, had sufficient notice that 1st and 2nd respondents were contesting the authenticity of the results which the appellant relied on. There was therefore, no requirement that 1st and 2nd respondents should set out in their pleadings their objections to the alleged results of the election. Similarly, I am not aware of any law or rules that required a party to a case to set out in his pleadings his objections to documents pleaded by his opponent. All what the law required the 1st and 2nd respondents (as petitioners) was to plead facts showing that they would challenge the authenticity of the results. They are not required to plead evidence with which they would challenge the results. In this situation, the appellant cannot be said, he was not aware that 1st and 2nd respondents were challenging the genuineness of the result which he, the appellant, pleaded.

Moreover, the 1st and 2nd respondents were not, in these circumstances, required to plead the defects in the result sheets pleaded and tendered. In Oseni vs. Dawodu (1994) 4 SCNJ (Pt.11) 197 at 208, the Supreme Court held that, there is no requirement that a party should state in his pleading his objectives to the admissibility of a document. How much more so the evidence to show that a document is not genuine.

On examination of 85 of the Forms EC 8A(ii) results sheets from Ekwusigo Local Government Area, the defects, i.e alterations and mutilations, were apparent on the face of the document. Did the appellant expect the tribunal to have ignored the alteration? In fact, I have not seen in the records where the appellant disputed the fact that 95 results sheets from 85 polling booth in Ekwusigo Local Government had their dates altered from “21” to read “22”.

On the issue that the defects in the results sheets tendered by the appellant were pointed out only in the address of the 1st and 2nd respondents, I wish to disagree with the appellant, permit me, my Lords, to set out the evidence extracted from the witnesses of the 5th respondent in the petition in relation to the purported results of the election:

(a) RW19A, was the Electoral Officer for Ekwusigo Local Government Area. He admitted that Exhibits R894, R897, R899, R900, R901 and R902 were result sheets for polling booths in his local government in which there were no registered voters but the results sheets were signed by presiding officers and party agents. According to him, it is not the practice of INEC to post presiding officers to polling units that have no registered voters. Yet on their faces Exhibits R1023 – R1048, R1060 – R1069, and RI084 – R1096 showed that there were no registered voters in these polling booths. Since INEC did not send presiding officers to these polling booths where did the result sheets come from?

(b) RW19A also admitted that Exhibit R887 and R918 which he tendered were dated 21 April 2007. He also admitted that Exhibit 963 was dated 22 May 2007. According to him, the date 22/04/07 written on Exhibits R867 – R878 had not been altered. He admitted that all the parties in Exhibits R867- R878 and R948 – R967 were written in the same order. The appellant argued that in order to rebut the presumption of authenticity, 1st and 2nd respondents must show that the results which are being faulted would substantially affect the outcome of the election. I wish to point out to the appellant that, in this circumstance, the purpose of attacking the results is not to show that appellant did not obtain the majority of the votes cast at the election, when it will be necessary to challenge some of the votes allegedly cast for the appellant, rather the petition’s contention is that “no election was conducted at all.” And the purpose of attacking the results is to show that they are on the whole not reliable. I must also point out that what is raised in favour of the results was merely a rebuttable presumption, and once evidence is led to show that the results are not authentic/genuine, then the presumption is rebutted. If the appellant has the impression that, once the results are tendered then there is an irrebutable presumption that the results are authentic, he seems to be labouring under the mistaken impression.

With regards to the appellant’s argument that the polling booth results could not be challenged because the presiding officers were not joined as parties to the petition, this argument cannot be raised by the appellant at this stage because it was not raised in the tribunal. Added to this is the fact that, by virtue of section 142 of the Electoral Act 2006 there was no need to join the presiding officers as parties to the petition since INEC had been joined as a party to the petition and the presiding officers in carrying out their duties merely act as agents of INEC.

Finally, I must say that there was sufficient materials before the tribunal to justify its finding that the presumption of regularity had been rebutted, and since the presumption had bee rebutted, the appellant must prove the genuineness and authenticity of the results which he failed to do. The tribunal finding on this aspect cannot be disturbed. This issue therefore is resolved against the appellant.

ISSUE NO.6

This issue covers appellants’ issues 7 and 11. The question for consideration under this issue is whether the tribunal was correct in its finding that the constituency Returning officer, returned “PDP Candidate” and not the appellant (Mr. C.I.D.

Maduabum) as the winner of the election and that this rendered the return null and void.

In his brief of argument the appellant argued that the tribunal was wrong in the assessment of the evidence of RW17A- the Returning officer- whose evidence was most crucial in the determination of the petition. That as a result of wrong assessment, the tribunal misconstrued the evidence of RW17A, and reached a wrong conclusion which cannot be justified. He also argued that Exhibits ‘E’ cannot be authentic because the signature of RW17A was missing and as such the document was tempered with. He contended that the tribunal wrongly forms the impression on RW17A because contrary to what it stated in its judgment, what was recorded was that RWl7A said that his signature on Exhibit ‘C’ was wrong. He also argued that the tribunal was wrong to have relied on section 128(d) of Evidence Act because there was no proof of the state in which Exhibit ‘681’ was before it was allegedly altered.

In response, 1st and 2nd respondents argued that, in the determination of credibility of witnesses, the demeanour, personality reaction to question under cross-examination are all factors to be taken into consideration and that the determination of the credibility of a witness is strictly within the province of the trial judge. That where the veracity of a witness is in doubt, the law is that his evidence carry no weight at all. Therefore, the tribunal recorded its impression of RW17A correctly because it did so while observing him giving evidence.

The 6th – 97th respondents did not make any submission on this issue.

From the records of this appeal, it is shown that in paragraphs 2, 4, and 8 of the petition and paragraph 2 of the petitioner’s Reply to the Reply of the 5th – 97th respondents to the petition, the petitioners pleaded that:

1. at the date of the election, the 2nd and 3rd respondents to the petition were not members of the 4th respondents to the petition, and non of who at all materials times had secured its sponsorship to contest the said election.
2. the 4th respondent did not field any candidate at the election.
3. as a result of the uncertainty as to who was the candidate of the peoples Democratic Party (PDP) at the election, the Returning officer purported to return a non-juristic person called “PDP” Candidate” as the winner of the election.
4. Only a known human being may contest and or be declared winner in an election.

In their separate replies, the appellant, the 4th respondent to the petition (PDP) and the 5th respondent to the petition (INEC), pleaded that:

(1) the appellant was the duly nominated candidate of the 4th respondent (PDP) who was sponsored by the said 4th respondent to contest for the seat in the House of Representatives for the Nnewi North/Nnewi South and Ekwusigo Local Governments.

(2) The 4th respondent (PDP) was returned as the winner of the election in the form. EC8E (1) dated 22nd April 2007 issued by the 5th respondent and on its website.

Considering the above pleadings of the parties to the petition, the joint issues that went on to trial were:

(a) was the 3rd respondent, the 4th respondent’s candidate at the election?

(b) Who was returned as the winner of the election in the Form EC8E(i) issued by the 5th respondent? i.e as between Exhibit ‘C’ and Exhibit R681, which was the authentic result of the election?

From the record of this appeal, the evidence before the tribunal was that the appellants name was originally sent to INEC as the candidate of the 4th respondent to the petition (PDP) for the election. When he got wind of the fact that the 4th respondent wanted to substitute him, he ran to the court and obtained in his favour a judgment dated 14/3/2007 against INEC restraining INEC from “changing, replacing or substituting” him as the PDP candidate at the election. However, in the course of proceedings, some documents were tendered and admitted as Exhibits as follows:

1. Exhibit ‘R1’ – A letter dated 5/2/2007 from PDP to INEC substituting the appellant with the 2nd respondent to the petition (Dr. Martin Igbokwe) as the PDP Candidate at the election.
2. Exhibit ‘R2’ – A letter dated 14/4/2007 from PDP to INEC informing the INEC that the appellant had been expelled from the PDP.
3. Exhibit ‘3’ – Certify True Copy (C.T.C) of INEC final list of Candidates eligible to contest the election.

From the above documents tendered before the tribunal, at least from the point of view of the 5th respondent to the petition (INEC), there ought to be confusion as to whether the 4th respondent to the petition (PDP) had any candidate at the election, and if it had, who was he? In deed, under cross-examination, RW17A the Constituency Returning officer stated that:

“The list with which we conducted the election and return does not contain the name of C.I.D Maduabum (appellant) but I was given a letter as the Returning officer by the Resident Electoral officer directing me to replace the “PDP Candidate” in the said list by Hon. CID Maduabum. The replacement was according to the letter as a result of the court ruling, I became aware of the court order before the election. ”

My Lords, permit me to state here that, not only was this mysterious letter from the Resident Electoral Officer not pleaded, it was also not tendered in evidence, and the result is that the said document will be presumed as not in existence. See section 149(d) of the Evidence Act. However, it is this confusion that led to RW17A to purportedly return the said ‘PDP Candidate’ as the winner of the election as shown on Exhibit ‘C’.

Now, I will examine the authenticity of both Exhibits ‘C’ and R681. It is important to note that both parties to this appeal agreed that Exhibits ‘C’ and R681 were made by RW17A, and Exhibits are Forms EC8E (i) which are to be used for the Declaration of Results. In both Forms are specific spaces for entering the names of the Candidates that contested the election, the respective parties they belong to, and the scores they obtained at the election. At the bottom, in paragraph 4 of this Form (EC8E (i)), is a place/space for the name of the candidate who was the election and another space for the name of his party to be filled

Commenting on Exhibit ‘C’, RW17A said:

‘yes I have seen Exhibit ‘C’ and Exhibit R681.

The writing in Exhibit ‘C’ is mine but the name of the Candidate is missing. Also my name and signature are also missing. The document is tempered with. Exhibit R681 is exactly in the same condition it was when I made it Yes Exhibit R681 is the return I made. ”

Under cross-examination by counsel for the petitioner, RW17A stated:

“My signature is not compete on Exhibit ‘C’. A paper was super-imposed on it.

The 1st difference between Exhibit ‘C’ and Exhibit R681 is where the name CID Maduabum is inserted is one of them. Yes everything regarding the number of votes cast and obtained is in my handwriting. It is also the same.

In his brief, appellant argued that Exhibit is not authentic since the signature of RW17A is missing and therefore the document was tempered with. The crucial question as regards these two Exhibits is not whether the signature of RW17A on Exhibit ‘C’ is complete or whether RW17A’s name appears on it but whether the name “CID Maduabum” was inserted in the Exhibit R681 after the return of the “PDP Candidate” was made.

The tribunal, faced with the task of determining as between Exhibits ‘C’ and R68l which was the authentic return, made definite findings on the authenticity of both documents:

“Upon a careful and critical examination of both exhibits ‘c’ and ‘R681′ it is quite discernible that the two documents purport to make a return of “PD Candidate” as the person returned as the elected winner of the purported election. Even though RW17A, Mr. Njoku Michael Ekene questions the validity of Exhibit C we have no doubt in our mind that both Exhibit C and R681 are the same, the only difference between them being the fact that one is an original copy while the other is certified true copy.

However apart from that and apart from the name CID Maduabum entered in a wrong column on Exhibit R681 all the other particulars are the same. Nay RW17A himself admitted that his complete signature is on Exhibit C as well as Exhibit R681. The handwriting on both is also the said.

As a matter of fact Exhibit C, the CTC having been signed by the Honourable Commissioner appears to be more authentic and reliable. The only defect is that the Exhibits purported to return “PDP Candidate’ who is unknown to law.”

“…hence the desperate move to juxtapose the name cm Maduabum against the name “PDP Candidate” though in a wrong column.”

The appellant, to be noted relies heavenly on Exhibit R.681. A cursory examinations of the said Exhibit R681 will show major flaws in it:

1. in the column for writing the name of the candidate at the election, the words, “PDP Candidate” are written. The name “CID Maduabum” is inserted on top of the “PDP Candidate.” Does it make sense to say CID MADUABUM PDP CANDIDATE OF PDP”?
2. the name CID Maduabum is not written in the column meant for writing the candidates.
3. in the column for writing the names of the candidates, the names of all the other candidates at the election (including the 1st petitioner) are entered properly in the space provided without the word ” candidate” on top of any of the names.
4. Since in Form EC8E (i) there are separate column for writing the name of the candidate and the party of the candidate, there is no reason for writing “PDP Candidate” in the column meant for the name of the candidate.
5. in paragraph 4 in Exhibit R681 in the space provided for writing the name of the winner of the election the words “PDP Candidate”, are once again inserted, with the name ‘CID Maduabum’ written on top in a place where it should clearly not be written again to read; CID MADUABUM “the PDP CANDIDATE OF PDP”. However, RW17A gave explanations in his evidence for the flaws in Exhibit R681. Under Cross-examination by the appellant’s counsel, he said:

“I had to write Hon. CID Maduabum PDP Candidate on Exhibit R681 and not the names of the other candidate’s parties because CID Maduabum was the PDP Candidate for the election. Yes, INEC has one particular format for the preparing of the declaration of result Form.”

Under further cross-examination by counsel for the petitioners, he stated as follows:

“Yes we have a column for the name of candidate in Exhibit R681, there is also the column for the party.

As regards the names of the candidates, I filled the column correctly. Under the column for candidates in the said Exhibit R681, PDP Candidate was written by me.

On top “PD Candidate” I write Hon.CID Maduabum PDP Candidate.

In the column for name of candidate there are names of six other candidates.”

At this point, the tribunal noted its impression on him as “evasive and hesitant to answer question.” RW17A then continued:

“Under the column in respect of six other candidates, I did not write the names of their parties. But when ever I am a Returning officer of any election I always write the name of the party of the candidate for my own security.

The second column on the column on the right is headed ‘party’. Yes you are correct I am expect to enter the parties of the candidates in the column.”

The witness then went on to deny that the name of Hon. CID Maduabum was inserted after the preparation of Exhibit R681. At the end of his evidence, the tribunal again noted its impression on the witness as follows:

“The witness (RW17A) appears to be a very fraudulent person. A real crook. He chooses which questions to answer.”

The conclusion one may reach here in this circumstance is that RW17A was telling a blatant lie particularly when he said that, “he filled the column for the name of candidates correctly, or did he mean that “PDP Candidate” was the real name of a candidate at the election?

The authenticity of Exhibit R681 vis-a vis Exhibit ‘C’ depended on whether RW17A inserted the name of the appellant after making a return in favour of “PDP Candidate” and whether the 1st petitioner (1st respondent in this appeal) who claimed that Exhibit ‘C’ was given to him by INEC, tempered with Exhibit ‘C’ after he was given the said document. Looking at Exhibits ‘C’, R670, and R68I and the evidence of RW17A, a conclusion that could be reached is that the name of the appellant, must have found its way into the result sheets (Exhibits ‘C’, R670 and R681) after and subsequent to the preparation of the latter. That by cleverly inserting the name of the appellant in a different column from the one provided for the name of the candidate, it is definitely clear that the entry was made after the completion of the document, Exhibit R681. Inspite of the appellant’s argument that Exhibit ‘C’ could not be relied upon on the ground that only part of the signature of RW17A appears on it, unfortunately he failed to explain why in Exhibit R681 his names are not written in the two places provided for the name of the winner of the election to be written and instead, the words, “PDP Candidate are written in those spaces. Also by examining evidence of RW17A on Exhibit R681 and the alleged incomplete signature on Exhibit ‘C’, one will see that indeed, the signature of RW17 A on the said Exhibit ‘C’ is complete.

On the appellant’s contention that the tribunal was wrong to have relied on section 128(d) of the Evidence Act because there was no proof of the state in which Exhibit R681 before it was allegedly altered, in my view this argument is baseless on the simple reason that the tribunal examined the said document itself, and heard the lame excuses proffered by the maker of the document before it arrived at its conclusion that the name of the 3rd respondent, CID Maduabum, must have found its way into the result sheets after and subsequent to the preparation of the latter. Thus the tribunal rightly invoked the provisions of section 128(d) of the Evidence Act.

On the appellant’s contention that the tribunal was wrong to form the impression it did of RW17A , this argument does not carry much weight because the records shows that the tribunal recorded its impression of RW17A while observing him giving evidence. It did so in three places. First at p. 480 L.29 where it noted:

The witness is very evasive. Secondly at p.481 L.5, where it says:

“Witness evasive and hesitate to answer question.”

Finally after he concluded his entire evidence, the tribunal noted its impression of him at p.481 L. 7-8 as a very fraudulent person. A real crook. He chooses which question to answer.

However, it is important to note that one of the functions of the trial court is to observe the demeanour of witness. The tribunal therefore, in noting its impression of RW17 A did not breach any rule. The determination of credibility of a witness is strictly within the province of the trial court. Where the veracity of a witness is in doubt, as in this case the law is that his evidence should carry no weight at all. See Fashaw v. Adekoya (1974) S.C. 83.

Having said the above, I hold the view that the tribunal was correct in its finding that the constituency Returning officer returned “PDP Candidate” and not the appellant, as the winner of the election and that this rendered the return null and void. This issue is therefore resolved against the appellant.

ISSUE NO.7

This issue covers issue No. 2 of the appellant’s issue. The question here is whether the tribunal was right in determining the petition on the merits having determined that “PDP Candidate” was not a juristic person.

In his brief of argument the appellant argued that if no juristic person was return then there was no respondent who could be sued as a person returned and really no basis for the petition to be determined on merits. He further contended that the petition was incompetent because the requisite filing fees were not paid. That paragraph 45 of the First Schedule to the Electoral Act requires the payment of additional fee since the petition alleges that there were more than one candidate at the election. He contended that the petition was incompetent also because the import of the pleadings in paragraph 2 of the petition is that “the two persons, namely, the appellant and the 4th respondent in this appeal (Mr. Martin Igbokwe) were not candidates at the election.

In their brief of argument, 1st and 2nd respondent submitted that it is ridiculous to argue that since return of a non-juristic person was legally impossible no petition should have been filed to set such a return aside.

The 6th – 9th respondents did not made any submission on this issue.

In the petition before the tribunal, the 1st and 2nd respondents sued the following:

(a) PDP Candidate as 1st respondent.

(b) Dr. Martin Tgbokwe as 2nd respondent.

(c) CID Maduabum (the appellant) as 3rd respondent.

In their joint petition, 1st and 2nd respondents argued that a non-juristic person, namely, ‘PDP Candidate’ was returned as the winner of the election and that such a return was null and void. In their respective replies, the appellant and the INEC (the 6th respondent to this appeal) each denied that a non-juristic person was returned as the winner of the election and pleaded that the appellant was duly returned. Thus issues were joined as to who was the winner of the election.

After hearing the parties, the tribunal found that the return made by the Constituency Returning Offer was infavour of a non-juristic person called ‘PDP Candidate’. The tribunal also held that such a return in favour of a non-juristic person was a nullity. As a result of this finding, the tribunal struck out the 1st respondent (PDP Candidate) from the petition on the ground that it was not a legal person and so could not be joined as a party to the petition. As regards the 2nd – respondent (Dr. Martin Tgbokwe) the same tribunal also struck out his name on the ground that he was not a necessary party.

An election petition, to be remembered, challenges either an undue election or an undue return. That a return of a non-juristic person who did not and could not contest an election, as the winner of such election could be regarded as undue return. As such I agree with the 1st and 2nd respondents submission that it is ridiculous to argue that since the return of non-juristic person was legally in possible, no petition should be filed to set aside such return.

The 1st and 2nd respondents also pleaded in their petition that Dr. Martin Igbokwe and the appellant were not candidates at the election. The appellant and the INEC (as respondent to the petition) denied this fact and so this issue was hotly contested at the trial. From the pleadings of both the appellant and INEC respondents, one could see that the appellant was joined as a party to the petition because of his claim that he was the winner of the selection. The rationale for joining the appellant in the petition as a respondent was to make sure that he would be bound by the decision of the tribunal. Thus the appellant was a necessary party to the petition whether or not he was a candidate at the election.

It is obvious that having himself pleaded that he was returned as the winner of the election, the appellant has on his own showing, shown that the petition was competent since, inspite of whatever the 1st and 2nd respondents pleaded, the person INEC claimed it declared the winner of the election was made a respondent to petition. Even in the absence of the person declared the winner. “PDP Candidate”, the petition is still proper having Mr. CID Maduabum joined as a party to the petition.

The appellant argued that the petition was incompetent because the requisite filing fees were not paid and he refers us to paragraph 45 of the s 1st Schedule to the Act.

The Electoral Act, 2006, paragraph 45 of the First Schedule to the Electoral Act, 2006 requires that where two or more candidates may be made respondents to the same petition – for all purposes, including the taking of security – the election petition shall be deemed to be separate petition against each of the respondents. A practical explanation of the provisions under consideration came up in Obiekwe v. Obi (2005) 10 NWLR (Pt.932) 60. In that case the appellant presented a petition against both the 1st and 2nd respondents and some other statutory respondents. At the trial, it was found that filing fee was under-paid in violation of the combined reading of paragraphs 3(4) and 45 of the First Schedule to the Electoral Act, 2002 (which are in pari material with paragraphs 3(4) and 45 of the First Schedule to the Electoral Act, 2006). This court noted that the combined effect of paragraphs 3(4) and 45 under reference was that the petitioner who chose to sue more than one person from the same party, as in this case must pay against each of the respondents, filing fees, for service and publication of the petition. This court also held that the failure to pay for each respondents the filing fees as required rendered the petition incompetent. At pages 74 -75 of the report, GALADIMA (J.C.A.) stated that:

” …. I agree with the respondents that the appellant only paid for one petition instead of 2. This is manifested on the face of the petition which is contained in the record of appeal.”

I have examined the record of this appeal and observed that this issue of underpayment of filing fees was not raised the tribunal and or no leave of this court was sought and obtained for this issue to be raised at this stage. Accordingly since it is raised for the first time and no leave obtained it cannot be entertained at this stage before this appeal Court.

ISSUE NO. 8

The question under this issue is whether based on the reliefs sought by the 1st and 2nd respondents the tribunal was right to have nullified the return of “PDP Candidate” as the winner of the election.’

In his brief of argument, the appellant has argued that the petition before the tribunal was incompetent and ought to have been struck out by the tribunal because it challenged an election which the 1st and 2nd respondents claimed was held on 21st April 2007 but which was infact filed on 22nd April 2007, That all the reliefs sought by them related to a non existent election and non-existent return and that they did not properly invoked the jurisdiction of the tribunal. He also argued that it is not in dispute that the election did not hold on 21st April 2007 and that Exhibits “A” and “C” tendered clearly that the election was held on 22nd April 2007 and a return made on that date.

In response the 1st and 2nd respondents submitted that the petition challenged both election and a return. That the prayer challenged the election of 21st April 2007 was valid. That at no time did the 1st and 2nd respondents concede that the election of 21st April 2007 was postponed to or held on 22nd April 2007.

The 6th – 97th respondents again did not make any submission on this lssue.

This issue is premised on the fact that:

1. On 21st April 2007 the election was postponed to 22nd April 2007;
2. an election was held on 22nd April 2007 and a return was also made on 22nd April 2007.

Using this as a foundation, the appellant in his brief contended that the petition before the tribunal was incompetent and ought to have been struck out for the simple reason that it challenged a non-existent election. According to the appellant, all the reliefs sought in the petition related to an on-existent election and a non-existent return. He argues that it is not in dispute that the election did not hold on 21st April 2007 but postponed and conducted on 22nd April 2007 as established by Exhibits “A” and “C” tendered by the 1st and 2nd respondents.

A critical perusal of the petition will reveal that it is premised on a return having been made based on an election scheduled for 21st April 2007 which did not hold. In answer to this, the respondents in the petition, admitted that the election was originally scheduled for 21st April 2007 but claimed that on 21st April 2007, INEC postponed the selection to 22nd April 2007 on which day the election was held and a return was made. In their replies, the 1st and 2nd respondents denied that the elections were ever postponed to 22nd April 2007, or that they were held on 22nd April 2007.

Thus, the parties to the petition therefore joined issues on the following:

1. Whether the election was postponed from 21st April- 22nd April 2007; and
2. Whether an election was ever held on 22nd April 2007.

However, it is only when the tribunal had determined that the election of 21st April 2007 was indeed postponed to 22nd April 2007, and that the election indeed held on 22nd April 2007, that there could be said to exist factual basis for considering the argument of the appellant that the petition was incompetent. In otherwords, the legal challenge mounted by the appellant to the competence of the petition, depended on proving of certain facts which were hotly in dispute and this is why, I think, the appellant did not in the tribunal seek to strike out the petition before it proceeded to trial.

In his brief again, the appellant argues that the dates stated/shown on Form EC8E(i) (Declaration of results form, tendered as Exhibits ‘C’ R670 and R781), that is 22nd April 2007, is conclusive as regards both the date the election was conducted and the date – a return was made. This argument is flawed. Ordinarily, the date stated on Form EC8E is presumed to be the date when the return was made. This presumption is rebuttable. For if an election has not been held, then no return can be validly made inspite of whatever date is stated on Form EC8E.

On the appellant’s contention that relief sought in the petition was with respect to a return not made in the non-existent election.

It is trite law that a court or tribunal cannot grant a party to a petition any relief other than that which the party sought from it or any relief not consequential to what the party sought. From the petition it is a fact that it challenged both an election and a return made in the election, therefore the prayer challenging the election of 21st April 2007 was valid. This is because from the documents prepared by the INEC, the body that conducted the election, and tendered before the tribunal, there is evidence that an election was purportedly conducted on 21st April 2007. See Exhibits, R875, R887,

R963 and R918 (these are some polling booth results tendered by the INEC respondents) which are dated 21st April 2007. Also to be seen in Exhibit ‘B’, the website result dated 9/5/2007 refers to an election conducted. On 21st April, 2007. By virtue of section 125 of the Evidence Act, Exhibits R875, R887, R963 and R918 could have been presumed to have been made on the day they are dated, i.e. 2l/4/2007. INEC respondents having tendered them, (and the appellants also tendered the corresponding CTC as Exhibits), cannot be heard to contend that no election had ever held on 21st April 2007 to contradict these documents as to the date the election was held. See Ezemba vs. Ibeneme (2000) 1 NWLR (pt.674) 61 at 74 of the report, where this court held that a party who tenders a document and proceeds to lead oral evidence to contradict his own document is not deserving of credibility. It is important to remember that the appellant could not/did not give any explanation in the tribunal for the dates contained on these documents. Nor has the appellant attempted to explain in his brief why these exhibits should be ignored. It is ridiculous for the appellant now to challenge the petition on this ground when some of these documents before the tribunal show that an election was purportedly conducted on 21/4/2007? Referring to these documents, the tribunal, in my view, held rightly that:

“The air of uncertainty did not spare even the exhibits, namely, results sheets tendered by the Respondents in their attempt to sustain their claim that the election scheduled for 21st April 2007. The conclusion that date on these exhibits suggests is that at least in some Polling Stations, the election was held on 21st April 2007 even by the respondents’ showing.”

On the appellants argument that by tendering Exhibit ‘A’ and Exhibit ‘C’ 1st and 2nd respondents admitted that the election was indeed held or 22/4/2007, and not on 21/4/2007. On this contention have stated in this judgment that the appellant misstated the contents of Exhibit ‘A’. Exhibit dated 22/4/2007 did not purport to postponed any election from 21/4/2007 to 22/4/2007. That the entire tenor of the 1st and 2nd respondents’ case was that no postponement of the selection took place. Therefore at no time did the 1st and 2nd respondents concede that the election of 21/4/2007 was postponed to, or held on 22/4/2007. The order of the tribunal was rightly stated as follows:

“Accordingly, the return of “PDP Candidate” made by the 5th – 9th respondents as the alleged winner of the election into the Nnewi North Constituency is null and void.”

I view of what I have stated above, I am of the view that, based on the relief sought by 1st and 2nd respondents the tribunal was right to have nullified the return of “PDP Candidate” as the winner of the election. The relief granted to them definitely flow and is from the findings in the case and was in line with the reliefs sought by them in paragraph 13(iii) of their petition. This issue therefore, is also resolved against the appellant.

Having resolved all the issues against appellant this appeal therefore lacks merit and is dismissed. The judgment of the tribunal dated 3/3/2008 setting aside the return of “PDP Candidate made by the 6th – 97th respondents as the winner of the election into the Nnewi North/Nnewi South/Ekwusigo Federal Constituency on ground of being null and void is hereby affirmed. Fresh election is hereby ordered within 3 months from the date of this judgment by the 6th – 97th respondents in the said Federal Constituency.

I order no costs.

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Other Citations: (2009)LCN/3097(CA)