Ikiriko Odhuluma Hope V. Barrister Joseph Elleh & Anor (2009)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

This is an appeal against the judgment of the Governorship & Legislative Houses Election Petition Tribunal, holden at Port Harcourt, Rivers State which was delivered in respect of petition NO. EPT/SA/20/2007 on 17/3/2008.

On 14/4/2007, the 2nd Respondent had conducted an election for membership of the state Houses of Assembly throughout the country. In Rivers State most especially, the Appellant and the 1st Respondent contested the said election for Ahoada West State Constituency in the Ahoada West Local Government under the platforms of the Peoples Democratic Party, and the Democratic Peoples Party, respectively. At the conclusion of the election in question, the Appellant was declared and returned as having won the election with a total of 13,635 votes. The 1st Respondent, on the other hand, was credited with 162 votes.

The 1st Respondent was however dissatisfied with the result of the election. Thus, on 14/5/2007, he filed a petition NO. EPT/SA/20/07 in the lower tribunal seeking the following reliefs:

1) A DECLARATION that the election purported to have been held or conducted by the 1st Respondent at Ahoada West Local Government Area Constituency II on Saturday, the 14th day of April 2007, was invalid by reason of corrupt practice and non-compliance with the provisions of the Electoral Act or Declaration that the election is null and void on the grounds that the manifest irregularities contravened fundamental provisions of the Electoral Act, 2006 which completely changed and/or mired the result of the election substantially.

(2) A DECLARATION that HOPE IKIRIKO the 2nd Respondent, was not duly elected by majority of lawful votes cast at the election.

3) AN ORDER of this Honourable court (sic) directing the 1st Respondent to conduct a fresh election for Ahoada West Local Government Area Constituency.

The petition was predicated upon two grounds, viz:

3.1. That the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act.

3.2. That the 2nd Respondent was not duly elected by majority of lawful votes cast at the election.

The petition indeed proceeded to trial, at the conclusion of which the lower tribunal delivered judgment on 17/3/2008, to the effect, inter alia, thus:

ii) That the Electoral Officer wrongly exercised her power under section 54(4) of the Electoral Act, 2006 to return the 2nd Respondent as the winner of the Election in question.

iii) That the appropriate provision of the law to be invoked by the Electoral Officer in the circumstance of this election should have been section 54(2) of the Electoral Act, 2006 to declare same as null and void and to pave way for the conduct of another;

3. In accordingly, nullify the Election in dispute per section 147 of the Electoral Act, 2006.
4. We order that 1st Respondent should conduct another election into River state House of Assembly in Ahoada West Local Government Area/Constituency II within 90 days from today.

The present appeal is against the judgment of the lower tribunal in question. The notice of appeal, filed in the lower tribunal’s registry on 04/4/2008, was predicated upon a total of eleven grounds of appeal. Parties had filed and served their respective briefs of argument.

The Appellant’s brief was filed on 29/4/08. The 1st Respondents’ brief, on the other hand, was initially filed on 23/5/08, but deemed properly filed and served on 28/10/08. The 2nd Respondent’s brief was filed on 08/10/08, but deemed properly filed and served on 28/01/09.

On 28/01/09, when the appeal last came up for hearing, the learned counsel adopted the submissions contained in the respective briefs thereof, thereby resulting in adjourning the appeal to today for delivery of judgment.

The Appellant has formulated a total of six issues in the brief thereof for determination, to wit:

(a) Whether the 1st Respondent led evidence to establish that the result cancelled in the four wards substantially affected the outcome of the House of Assembly Election for the Ahoada West Local Government Area Constituency seat on 14/4/2007.

(b) Whether the learned justices of the Tribunal were right to have relied on the hearsay evidence of the 1st Respondent and his witnesses to have concluded that no result was written at the polling units.

(c) Whether the learned justices of the tribunal were right to have invoked the provisions of S. 149 (d), Evidence Act against the 1st Respondent.

(d) Whether, the learned justices of the tribunal properly evaluated the evidence led by the parties before concluding that voters register were not used in the House of Assembly Election for the Ahoada West Local Government Area Constituency seat on 14/4/2007.

(e) Whether the learned justices of the tribunal were right to have ordered a bye-election in view of the fact that 1st Respondent did not lead any evidence in proof of paragraph 4 of his petition.

(j) Whether the judgment of the tribunal is not against the totality of the evidence led.

On his own part, the 1st Respondent has raised only two issues in the brief thereof, thus:

ISSUE ONE:

Whether from the totality of evidence placed before the tribunal, the learned judges of the lower tribunal were right in holding that the election was not in substantial compliance with the provisions of the Electoral Act, 2006.

ISSUE TWO

Whether affidavit evidence to wit written statement on oath, which was used in this case, instead of oral evidence, need contain prayers, relief and extraneous matters?

The 2nd Respondent, on the other hand, has deemed it fit to adopt the six issues formulated in the Appellant’s brief for the determination of the appeal.

I have deemed it expedient to determine this appeal on the basis of the six issues formulated in the Appellant’s brief.

ISSUE NO.1

The first issue raises the question of whether the 1st Respondent led evidence to establish that the result cancelled in the four wards in question substantially affected the outcome of the House of Assembly election for Ahoada West Local Government Area Constituency seat on 14/4/2007. The issue was indicated to have been distilled from grounds 5 & 6 of the grounds of appeal. It was, inter alia, submitted by the Appellant that the 1st Respondent never pleaded any fact in the petition thereof showing that results in the four wards were cancelled, and that the cancellation substantially affected the outcome of the elections. Reference was made to paragraph 8 of the 2nd Respondent’s reply to the petition thus:

That in reply to paragraph 8 of the reply the petitioner state that this issue of over voting was one of the irregular things that substantially mere the result of the election. The petitioner state that the votes in the affected places were substantial and could have affected the final outcome of the election.

It was contended, that the 1st Respondent in law has a duty to call evidence to support paragraph 1 of the said reply. See ODEJIDE VS FUGBO (2004) 8 NWLR (part 874) at 15 paragraphs C – D.

It was further submitted, that no written deposition was filed to establish the averments in paragraph 1 of the reply to the 2nd Respondent’s reply to the petition. That, the petitioner led no evidence to establish paragraph 1 of the 1st Respondents reply to the petition. That, the said paragraph 1 of the 1st Respondent’s reply to the petition remains unproved and therefore deemed abandoned. See OGBEIDE VS OSULA (2004) 12 NWLR (part 886) 86 at 131 paragraphs E – F.

The court was urged to hold that the rules of pleadings applicable to civil actions also apply to the instant petition. See OGBEIDE VS OSULA (supra) at 132 – 133 paragraphs H – B; OLABA VS EZIMUO (2003) 17 NWLR (part 848) 129; EZEANAH VS ATTA (2004) 7 NWLR (part 873) 468 at 515 – 516 paragraphs B – D.

A Reference was also made to RW1, Mrs. Rita Tsaro-Deeyor, who led evidence to establish paragraph 8 of the 2nd Respondents’ reply to the petition. That, under cross examination by the Appellant’s counsel, the RW1 said yes, “I cancelled result in four wards. These results that cancelled in the four wards did not affect the result of the election.” That piece of evidence was allegedly not contradicted under cross examination. Thus, it was contended the law is elementary that the court is entitled to believe and act on evidence that is un-contradicted and not challenged during cross examination. See NWANKWO VS ABA ZIE (2003) 12 NWLR (part 834) 381 at 403 – 404 paragraphs, H – A.

The court was urged to accordingly hold that the lower tribunal erred in law in not believing the un-contradicted evidence of the 2nd Respondent’s witness that the result cancelled in the’ four wards did not substantially affect the outcome of the election. See ANGBAZO VS EBYE (1993) 1 NWLR (part 268) 133 at 144 paragraphs A – C.

According to the Appellant, the 1st Respondent neither pleaded, nor led any evidence to establish that:

(a) Majority of those who voted in wards 3, 4, 5 and 8 voted for him and not the Appellant;

(b) The cancellation of the results in those for wards prevented him from securing majority of the votes cast in the said election.

(c) Wards 3, 4, 5 and 8 where results were cancelled are his strong holds by virtue of the fact that he has many supporters there.

(d) Wards 3, 4, 5, and 8 where results were cancelled affected only his votes.

It was argued that in the absence of any evidence to establish those four factors stated in ANGEAZO VS EBYE (supra), the lower tribunal was wrong to have held that the cancelled results in the four wards in question affected the outcome of the election. That, the appellate court will interfere with a finding of a trial court which is not based on evidence adduced at the trial. See OMOIYI VS ALABI (2004) 6 NWLR (part 870) 551 at 573 paragraphs C – D; AGBABIAKA VS SAIBU (1998) 10 NWLR (part 534); ISHAKU VS AINA (2004) 11 NWLR (part 883) 146 at 171 paragraphs B – D; I.B.W.A. VS JOHN ELUE CONSTRUCTION CO. LTD (2004) 7 NWLR (part 873) 601 at 614 paragraphs G – H.

The court was accordingly urged to resolve issues NO.1 in favour of the Appellant.

On the other hand, as alluded to above, the 1st Respondent has formulated only two issues for determination. The argument on issue NO.1 is contained at pages 5 – 23 of the 1st Respondents’ brief. The issue of cancellation of election in wards 3, 4, 5 and 8 was addressed by the 1st Respondent at pages 17 – 23 of the brief thereof. Reference was made to the findings of the lower tribunal at page 431, paragraph 2 of the Record, regarding the cancellation of the election in the four wards in question. It was thus submitted, that the lower tribunal found that issue had been joined by the 1st and 2nd Respondents regarding the cancellation of the election in those wards.

It was contended, that the facts of the case of ANGBAZO VS EBYE (supra) relied upon by the Appellant’s learned counsel, are clearly different from the instant case. That, the present case deals with cancellation because of over voting, for which section 54(2) & (3) of the Electoral Act, 2006 clearly provide what should happen in such circumstance. That, on the other hand, the case of ANGBAZO (supra) does not deal with over voting, and was not based on section 54 of the Act. It was contended, that the effect of over-voting arid the procedure relating thereto, have been interpreted in the case of BIYU VS IBRAHIM (2006) 8 NWLR (part 981) 1 at 51; OPUTECH VS ISHIDA (1993) 3 NWLR (part 279) 34, relied upon by the lower tribunal, is said to be instructive on the point.

It was thus argued, that the submission of the Appellant’s counsel that it was wrong for the lower tribunal to have ordered for a bye-election was misconceived, and not in tune with the evidence before the tribunal as borne out by the records. According to the learned counsel-

The evidence of the RW1 us self contradictory in that she testified that a total number of about 15,000 votes were cast out of which Appellant scored 13655 votes and in the same breath she insisted that the cancellation of the election in wards 3, 4, 5 and 8 which she confirmed had 25, 518 registered voters and as clearly shown in Exhibit R2, did not and/or could not substantially affect the out come of the election. It is respectfully contended that as simple authentically (sic) cancellation will show that the position of RW1 that the cancellation did not affect the election is inconceivable. See page 20 of the 1st Respondents’ brief.

Reference was equally made to section 54 of the Electoral Act, 2006, thereby contending that it’s not the requirement of the law, as contended by the Appellant, that there must be proof that all persons registered in the area, where over voting occurred, voted. That, by the operation of section 135 of the Evidence Act, the 2nd Respondent who actually cancelled the election in these wards was under a duty to call evidence to prove this assertion. That, the evidence of RW1 and the documents tendered especially R2 did not support this averment.

It was also contended, that the court will not act on evidence which contradicts itself. That, the 2nd Respondent was wrong to have returned the Appellant as winner of the election when-

i) From Exhibit R1 (1 – 12) the voters register was not used in the conduct of the election in all 12 wards of Ahoada West Constituency.

ii) And the 25,518 votes available in wards 3, 4, 5 and 8 which were cancelled for over voting can and did not substantially affect the result declared based on 15,000 votes.

On the other hand, the 2nd Respondent’s submission on issue NO.1 is to the effect, inter alia, that the 1st Respondent did not lead evidence in support of his complaint of substantial non-compliance with the Electoral Act.

That, the burden of proof lies upon the petitioner to lead cogent, relevant and admissible evidence to establish his allegations, See ALHAJI KYARI VS ALHAJI ALKALI & ORS (2001) 11 NWLR (part 724) 412 at 435 – 436 paragraphs H – A; IRP LTD VS OVIAWE (1992) 5 NWLR (part 243) 572 at 584 and 586.

It was further submitted that the parties had joined issues on i) corrupt practices; ii) non-compliance with the Electoral Act; and iii) that the Appellant was not duly elected by majority lawful voles cast at the election. Reference was made to page 249 of the Record, regarding the five issues settled by the 1st Respondent for determination of the petition thereof. That, the only issues relevant to grounds two and three of the petition are issues 3 – 5, however, there is no iota of evidence in support of the issues or grounds. That, pleading in respect of which evidence is not proffered is deemed to have been abandoned, See OBA OYEDIRAN VS OBA ALEBIOSU II & ORS (1992) 6 NWLR (part 249) 550 at 556-557 paragraphs H – A; BASHEER VS OBA ALEBIOSU II & ORS (1992) 4 NWLR (part 236) 491 at 502 paragraphs F – H.

It was argued, that the only ground upon which the lower tribunal found for the petitioner was that there was substantial non-compliance. The alleged non-compliance is that “the election on 14th day of April, 2007 was without known and valid voters register”. That, this was however, not one of the issues submitted by the petitioner for the determination of the tribunal at page 249 of the Record. It was contended, that a court or tribunal is bound by the issues formulated by the parties for its determination, See AMALGAMATED TRUSTEE’S LTD V ASSOCIATED DISCOUNT HOUSE LTD (2007) 15 NWLR (part 1056) 118 at 147 paragraph H; UBA LTD VS ACHORU (1990) 6 NWLR (part 156) 254 at 273 paragraph B.

According to the learned counsel, the evidence of RW1 is credible, un-contradicted, and unchallenged, thus the lower tribunal was bound to have accepted same. See. JALINGO VS NYAME & ORS (1992) 3 NWLR (part 230) 538 at 545 paragraphs E – G; IKUOMOLA VS IGE & ORS (1992) 4 NWLR (part 236) 511 at 524 – 525 paragraphs H – A.

It was likewise contended, that the burden of proof was on the petitioner to lead evidence that there was known or valid voters register used by the 2nd Respondent in conducting the election. That, the lower tribunal’s findings that the petitioner had failed to produce eye witnesses of all the allegations in the polling units and wards, left it with no option other than to dismiss the petition. See ENIGWE & ORS VS AKAIGWE & ORS (1992) 2 NWLR (part 225) 505 at 537 – 538 paragraphs F – A.

The law is trite, that any party in a suit that desires a Court or tribunal to give judgment regarding any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. See Section 135(1) of the Evidence Act, CAP. E 14, Laws of the Federation of Nigeria, 2004.

This indeed a fundamental principle of law, that the burden or onus of proof in a suit, lies upon that person who would fail if no evidence at all were given or adduced by either side. See section 136 of the Evidence Act (supra).

It is rather obvious from the above provisions of the Evidence Act, that the burden of proof invariably pertains to the duty of adducing credible evidence, whether at the initial stage of the case, or at any other later moment in the course of, the trial thereof. See MURANA SELEMO & ORS VS FASASI OMOLADE & ORS (1968) ALL NLR 359 at 361.

In election petition matters in particular, it’s an elementary principle of law, that the onus of proof is squarely places on him who asserts to adduce credible evidence in proof of the assertion thereof. That’s to say, the burden lies on the petitioner who complains against the conduct of the election, to prove his assertion with credible evidence. The burden of proof thus presupposes the fact that the petitioner must succeed strictly on the strength of his own case, and not on the supposed weakness of the defence. See AWUSE VS ODILI (2005) ALL FWLR (part 261) 248 at 313,316; OLUFOSOYE VS FAKOREDE (1993) 1 NWLR (part 20) 66.

In the instant case, the declaration and return made by the 2nd Respondent regarding the Appellant was the subject of the instant petition (EPT/SA/20/2007) filed by the 1st Respondent. The general rule is that when the INEC declares a result, there is a presumption that the result is correct. However, like in all general principles of law that principle is not without some notable exceptions.

That’s to say, the presumption is rather a rebuttable one. The petitioner thus carries the burden of rebutting that general presumption by adducing a credible evidence to prove otherwise. See BUBARI VS OBASANJO (2005) ALL FWLR (part 273) at 124; NWOBODO VS ONOH (1998) 1 SCNLR 1; .OMOBORIOWO VS AJASIN (1984)1 SCNLR 108; ATIKPEKPE VS JOE (1999) 6 NWLR (part 607) 428 at 433, JALINGO VS B NYAME (1992) 3 NWLR (part 231) 538 at 546.

However, the law is well settled, that where the evidence of the Respondent appears to support the petitioner’s case, the petitioner is at liberty to rely on that piece of evidence to prove his own case. See ONIFADE VS OYEDEMI (1999) 5 NWLR (part 601) 54 at 56.

In the instant case, as, alluded to above, issue NO.1 raises the vexed question of whether or not the 1st Respondent led evidence to establish that the results of the election cancelled regarding wards 4, 5, 6 and 8 in question substantially affected the outcome of the said election. With particular regard to the instant issue, the statement on oath and evidence of the RW1, Mrs. Rita Isaro Deeyor, and the Electoral Officer of Ahoada West should undoubtedly readily come to mind. RW1’s statement on oath is contained at pages 127 – 130 of the Record. The various exhibits (Forms EC825) attached thereto, are contained at pages 131 -142 of the said Record.

Of the eleven paragraphs of the RW1’s statement on oath, paragraph 7 thereof is most pertinent to the present issue. The said paragraph 7 is, inter alia, to the following effect:

7. Voting took place in all the wards and polling units as reported by all the supervisory presiding officers. The votes were collated, counted and declared in the presence of security men and party agents. In four of the 12 wards, it was discovered after examination of the ballot papers that there were obvious mutilations and over voting. The affected Wards are ward 3, 4, 5 and 8. The results of these wards were cancelled for these reasons and this was in the presence security officials and party agents present. The results of the remaining 8 wards unaffected by mutilation and over voting were thereafter declared. The declared results showed that one Ikiriko Hope had the highest of votes cast in the 8 wards. He was therefore declared the declared of the House of Assembly election in Ahoda West Local Government Area of Rivers state. I have now been shown copies of the result sheets EC8 A1 for polling Units EC8 B1 the Ward and EC8 D1 for the Local Government Area attached hereto and marked as EXHIBIT “B”, “C”, AND “D” respectively.

Under cross-examination by the Respondents’ counsel, the RW1 has stated at pages 393 & 394 of the Record thus:

Yes, if I found out that an election was conducted in a ward without voters register I would cancel the election of that ward. Yes, I did cancel the result of ward 3, 4, 5 and 8 for malpractice on the other. I have seen exhibits R1 (1) – (12) the voters register is not listed in these exhibits…

The total number of votes is about 15000 plus. I have exhibit “R3”. The PDP scored 13,636 votes in exhibit “R3”.

I have seen exhibit “R 2” (Form EC8C (1) it contains number of votes cast in AHOADA WEST.

There are twelve wards in all here. In “R2” the total number of voters is 5,5858 in wards 3. 1n ward 4 it is 4,108. In wards it is 5,238. In ward 8 it is 304. Yes I cancelled the election in these wards because of over voting and mutilation.

It is not true to say that it was the petitioner that won the election in these four wards which I cancelled. I do not know than the result of the four wards I cancelled were more than the ones declared. The result/amended were the result before me.

It is not true to say that the total number of voters in four wards cancelled that is wards 3, 4, 5 and 8 are more than the total number of the votes returned at the election. I did not lie to the Tribunal.

The findings of the lower tribunal on the issue of cancellation of the election of the four wards in question could be found at pages 429 (especially from lines 7 to the bottom) 30, and 31 of the Record. Most particularly, the lower tribunal’s findings at pages 430 to 431 of the Record are to the following effect:

The 2nd Respondent was returned as the person who scored the majority of lawful votes cast at the Election. He scored a total votes of 13,635. Per the testimony of RW1 the Electoral officer who conducted this election and that the total NO. of registered voters for each of the cancelled wards stands thus:

Ward 3 – 5,858

Ward 4 – 14,108

Ward 5 – 5,238 and

Ward 8 – 314

The total of which is 25, 518.

In consequence of the above findings, the lower tribunal came to the conclusion, inter alia, thus:

It is crystal clear that the number of votes in the ward where election was cancelled is almost twice the number of votes scored by the 2nd Respondent who was returned as the winner of the election in question. The total number of voters in the aforesaid wards is further supported by Exhibit “R2” (Form EC8C (1) which is summary of Results from Registration areas election to the State House of Assembly collation at Local Government Area level.

It is rather evident from the record that the RW1 had under cross-examination by the Respondents’ counsel admitted thus:

Yes, I did cancel the result of wards 3, 4, 5 and 8 for the malpractice or the other. I have seen exhibit R1 (1) – (12). The voters registers is not listed in these exhibits.

Exhibit R2 (Form EC8C (1) containing the number of votes cast in Ahoada West was identified by RW1 who accordingly admitted thus:

“There are twelve wards in all here. In (Exhibit) “R2” the total number of voters is 5, 5858 in ward 3. In ward 4 it is 4,108. In word 5, it is 5, 238. In ward 8 it is 304. Yes, I cancelled the election in these wards because of over voting and mutilation. However, notwithstanding the above unequivocal facts, the RW1 had rather shamelessly insisted under cross-examination that-

It is not true to say that the total number of voters in four wards cancelled that is ward 3, 4, 5 and 8 are more than the total number of the votes returned at the election I did not to the Tribunal.

There is every reason to believe that the petitioner’s case supports the case of the Appellant regarding the fact that no voters register was used in conducting the election in question. See ONIFADE VS OYEDEMI (1999) 5 NWLR (part 601) 54 at 56.

Again, it was the unequivocal finding of the lower tribunal at page 429 of the Record that –

RW1, the Electoral Officers who conducted the Election in dispute was clear and unequivocal in admitting, under cross-examination that voters register was not among the list of Electoral materials she distributed on the Election day per Exhibit “R1 (1-12)”. This admittance makes nonsense of the pleading of the two sets of Respondents on voters register which is to the effect that same was distributed by the Electoral Officer to the Supervising presiding officers on the Election Day.

I think, I can not agree more with the above impeccable findings of the lower tribunal. In the light of the aforesaid, there is every cogent reason for me to hold that the testimony of RW1 was rather self contradictory: She initially testified that a total of 15,000 votes, or there about, were cast at the election in question, out of which the Appellant scored a whopping 13, 655 votes, only for her to turn round insisting that the cancelling of the election in wards 3, 4, 5 and 8 of Ahoada West Constituency, with proven 25, 518 registered voters (as shown in exhibit R2), did not substantially affect the out come of the said election.

Thus, in view of the above obvious highlight, the answer to issue NO.1 is inevitably in the affirmative, and same accordingly resolved in favour of the Appellant.

ISSUE NOS. 2 & 3:

The second and third issues raise the questions of whether the lower tribunal was right to have relied on the alleged hearsay evidence of the 1st Respondent and his witnesses thereby concluding that no result

A was written at the polling units; and whether the lower tribunal was right to have invoked section 149(d) of the Evidence Act against the 1st Respondent. Issues, 2 & 3 were argued together in the Applicants’ brief. The two issues were distilled from grounds 7, 10 & 11 of the grounds of appeal. The argument on both issues spans pages 11 – 17 of the Appellant’s brief.

It was submitted that issues were joined by parties on whether election results were written at the polling units in all the wards of the Ahoada West Local Government Area. The provision of section 137 (1) of the Evidence Act on burden of proof in civil cases was cited and relied upon by the learned counsel. It was argued that since paragraph 14 of the Appellant’s reply to the petition, dated 24/9/2007, and filed on 25/9/2007 has denied paragraph 2.14 of the 1st Respondents petition, the burden was on the 1st Respondent to lead credible evidence to show that no result was, written at the polling units in all the wards. See BUBARI VS OBASANJO (2005) 13 NWLR (part 941) 116 paragraph H; 129 -130 paragraphs H – A.

It was contended, that no evidence was led to show that results were not written at the unit level. No eye witness account was also allegedly given on what happened at the polling unit level. That, the absence of the alleged units agents to give account of what took place at the units and wards levels is fatal that to the petitioner’s case. See NBN LTD VS CEE HOLDINGS LTD (2004) 13 (part 891) 459 – 460 paragraphs G – D; EZEMBA VS IBENEMA (2004) 14 NWLR (part 814) 617 at 659 paragraphs E – H; OMONIYI VS SODEINDE (2003) 13 NWLR (part 836) 53 at 66 paragraphs A – B; DAGASH VS BULAMA (2004) 14 NWLR (part 892) 144 at 240 paragraphs A -G, et al.

The court has been urged to accordingly set aside the judgment of the lower tribunal. See UDENGWU VS UZUEGBU (2003) 13 NWLR (part 836) 136 at 157 A – C; IHEANACHO VS CHIGERE (2004) 17 NWLR (part 901) 30 at 160 paragraph G.

The argument of the 1st Respondent on the issue of whether results of the election were written at the polling units in all the wards of Ahoada West Local Government Area, could be found at pages 14 – 17 of the brief thereof. It was submitted that the lower tribunal found that the parties joined issues on the existence of valid Forms EC8A (I) i.e. result sheets into which the results were allegedly correctly entered. That, the 2nd Respondent was put on notice to produce the said results in its custody, but no avail. That, the 2nd Respondent was also ordered to allow the 1st

Respondent to inspect the documents in its custody, but it did not obey the said order. The 2nd Respondent had also failed to produce the said documents to enable the lower tribunal inspect same and come to a conclusion thereon. That, the tribunal carefully considered the above state of affairs, and agreed that ‘the 2nd Respondent’s failure to produce any of the results at the polling units goes to support the testimonies of PW1, PW2 and PW3 that no result was written at the polling units, or that if produced they would have been adverse to their case; section 149 (d) of the Evidence Act.

On the principles regarding the burden of proof, the learned counsel cited and relied upon the following case: IBRAHIM VS OJOMO (2004) 4 NWLR (part 862) 89 at 110. That, in the instant case, it was the 2nd Respondent and the Appellant who asserted (affirmatively) that the unit results, Form EC8A (i), were available and used at the election. See INEC VS RAY (2004) 14 NWLR (part 892) 92 at 135 -137, et at.

Reference was made to paragraphs 7, 11, 13, 17 and 19 of the 1st Respondent’s deposion, to the effect that results were not written at the units, and Forms EC8A (1) (series) were not available. That, the [onus] is on the 2nd Respondent and the Appellant, who claimed that the results did exist; to rebut the evidence of the 1st Respondent by providing the results which they claimed existed.

It was argued, that failure to plead and tender the electron results is fatal to the interest of the candidate who relies on their existence, and is declared winner as person who scored the highest votes, or who asserts that an election took place. See OMOBORIOWO VS AJASIN (1984) ISC 206 at 227 – 228; YARADUA VS BARDA (1992) 3 NWLR (part 231) 638 at 653; OJUKWU VS ONWUDIWIE (1984) ISC NLR 247; NWOBODO VS ONOH (1984) 1 SC 34.

It was contended, that the findings of the lower tribunal on the invocation of section 149 (d) of the Evidence Act can not be faulted. The Court was urged to so hold.

The 2nd Respondent’s learned counsel has in the brief thereof adopted “the Applicant’s issue for determination.” Surprisingly however, despite adopting the six issues formulated in the Appellants’ brief, the 2nd Respondent ended up arguing only two issues tagged – issues one and two. It is rather unfortunate that none of the six issue raised in the Appellant’s brief has been specifically addressed seriatim in the 2nd Respondent’s brief. The method adopted by the 2nd Respondents’ learned counsel by raising two separate issues, rather than specifically addressing each of the Appellant’s six issues he adopted, is undoubtedly a fall-out of a bad drafting skill.

I have accorded an ample consideration upon the submissions of the learned counsel contained in their respective brief thereof vis-a-vis the Record of appeal as a whole. It is not in doubt, that the parties have joined issues in the instant appeal regarding whether or not the results of the election in question were written at the polling units in all the wards of the Ahoada West Local Government Area. As alluded to above, the law is indisputably well settled, that in civil cases, any election petitions, the onus or burden of first proving the existence or non-existence of a fact squarely lies upon the party against whom the judgment of the court or tribunal would be given if no evidence were adduced on either side; regard being had to any presumption that may arise on the pleadings. See section “137(1) of the Evidence Act.

In the instant case, the contentious documents in question were the Form EC8A (1) result sheets, which by their peculiar nature ought to be in the custody of INEC, the 2nd Respondent. The 2nd Respondent was put on Notice to produce the said result forms at the hearing of the petition but to no avail. The relevant findings of the lower tribunal on the issue could be found at page 426 of the Record thus:

Absence of voters’ register cancellation of election in wards 3, 4, 5 and 8 of Ahoada West Local Government Area and failure to tender Form EC8A(1) fire the live issues to be critically looked at under the issue in question.

It was also observed by the lower tribunal at page 431 of the Record thus:

The final and last leg under this issue is failure by 1st Respondent to tender Form EC8A of which are result sheets for the polling units. The 1st Respondent had joined issues will, the petitioner on this document. See paragraph 8 of the 1st Respondents Reply to the petition and paragraph 2.1 of the petition. Per paragraph 2.14 of the petition 1st Respondent was put on notice to produce same. Form EC8A (1) was pleaded by 1st Respondent counsel but was not tendered.

The election results, forms EC8A (1) in question, were the primary evidence of all votes cast in the election, and therefore very neccssarily relevant to the proceeding before the lower tribunal. It is indeed a trite principle of law, that polling unit results (forms EC8A) are the basic or primary evidence of votes cast in an election conducted under the Electoral Act, 2006. Such forms have constituted the bed rock foundation upon which the pyramid of an election process is constructed. See AWUSE VS ODIU (2005) 16 NWLR (part 952) at 488.

It’s instructive, that no reasonable explanation had been proffered by the 2nd Respondent regarding the non-production of the results in question in the lower tribunal. The lower tribunal thereby came to the conclusion, inter alia, thus:

We wholly and straight away endorse the aforesaid as ours and go on to conclude as under;

1. ——-
2. ——-
3. That failure to produce the said Form EC8A (1) in dispute goes to confirm the evidence of PWs1, 11 and 111 that no result was written at the polling units and
4. That the result if produced would have been adverse to the Respondent case. See section 149 (1) of the Evidence Act and AJADE VS AJIBOLA (2004) 16 NWLR (part 981) at 91 ratio 40 page 162 – 163 paragraphs F-G.

I think, I can not agree with the above findings of the lower tribunal. It is indeed trite and fundamental principle that where a petition alleges and successfully proves, vide a cogent evidence, non-compliance with the provisions of the Electoral Act 2006 the burden then automatically shifts to the Respondent to prove that the non-compliance has not substantially affected the result of the election, otherwise, the petition must succeed. However, the question of whether or not a particular non-compliance with any provision of the Electoral Act affects the result of the election in the entirety. Thereof, depends upon the circumstances surrounding each case. See NNAJI VS AGBO (2006) ALL FWLR (part 305) 736; 760; ERIOBUNA VS EZEIFE (1992) 4 NWLR (part 236) 417; MUTUM BIYU VS IBRAHIM & ORS (2005) ALL FWLR (part 274) 261; UKPO & 3 ORS VS IMOKE & 6 ORS (APPEAL NO. CA/C/NEA/23/2008) dated 14/7/08, respectively.

By virtue of the provision of section 64 of the Electoral Act, the presiding officer has the onerous duty to count the votes cast at the polling station or unit, enter the votes scored by each candidate in a form to be prescribed by INEC (FORM EC8A(I)). The said completed result form shall then be signed by the presiding officer, and counter signed by the candidates or their polling agents, where available at the polling station. The presiding officer is also required to give to the polling agents and the police officer on duty, where available, a copy each of the completed forms after it has been duly signed. Thereafter, the presiding officer shall count and announce the result at the polling station or unit.

Undoubtedly, in the instant case it’s so obvious, by virtue of the evidence adduced by the petitioner (1st Respondent), that the 2nd Respondent’s blatant failure or refusal to tender the forms EC8A (1) series at the trial of the petition had confirmed the indisputable fact that no valid result sheets were actually used or given out at the said election. The failure to tender the staid election results was undoubtedly fatal to the case of the Appellant. I have no doubt in my mind, that the lower tribunal was absolutely right when it, inter alia, held in the judgment in question that:

3. That failure to produce the said Form EC8A (l) in dispute goes to confirm the evidence of PWS 1, 11 and 111 that no result was written at the polling unit and

4 That the result if produced would have been adverse to the Respondents case. See 149(1)(sic) of the Evidence Act and AJADE VS AJIBOLA (2004) 16 NWLR (part 981) at 91 ratio 40 page 162 -163 paragraphs F – G and F – H.

Thus, the inevitable answer to each issue 2 & 3 is in the affirmative, and they are both hereby resolved in favour of the Respondents.

ISSUE NO.4

The fourth issue raises the liter to vexed question of whether the lower tribunal had properly evaluated the evidence led by the parties, before concluding that voters registers were not used in the election in question. The issue was allegedly predicated on grounds 2, 3, 4 and 9 of the grounds of appeal. It was argued at pages 17 – 24 of the Appellant’s brief. It was submitted that none of the 1st Respondent’s witnesses PW1, PW2 and PW3 – deposed in his written statement that no voters register was used at the election. That the letter written by the 1st Respondent to the president Electoral Commissioner, dated 24/7/07 for copies of the election results from Ahoada West Local Government Area did not allege that voters register was not used. It was contended, that the lower tribunal did not put the evidence of the parties on an imaginary scale before making the finding that the voters register was not used during the election of 14/4/07. See KWAJAIFA VS BANK OF THE NORTH LTD (2004) 13 NWLR (part 889) 146 at 176 paragraphs E – G; SEVENUP BOTTLING CO. LTD VS ADEWALE (2004) 4 NWLR (part 886) 183 at 213 paragraphs B – E; G-H; AJIBULU VS AJAYI (2004) 11 NWLR (part 885) 158 at 475 – 476 paragraphs H – B.

The court has been urged to intervene and accordingly set aside the findings of the lower tribunal. See IBWA VS JOHN ELUE CONSTRUCTION CO. LTD (supra).

I think, in view of my findings on the preceding issues 1, 2 & 3 it would be rather an academic exercise for me to dwell on issue 4. A careful perusal of the pleadings at the lower tribunal would aptly disclose that parties had joined issues on (i) whether the voters registers for all the wards were available and used for the conduct of the election at the polling units in the Ahoada West Local Government Area Constituency in question. See paragraphs 2.7 and 2.8 of the petition; paragraphs 8 & 11 of the Respondents reply to the petition; paragraphs7 & 8 of the Appellant’s reply to the petition, respectively.

(ii) Whether the result sheets, forms EC8A (1) were available at the polling units, and whether or not results of the election where indeed entered therein at the said polling units. See paragraphs 2.4; 2.5; 2.13 and 2.17 of the petition; paragraph 17 of the 2nd Respondent’s reply to the petition; paragraph 13 of the Appellants reply to the petition respectively; and

(iii) Whether the cancellation of the election at wards 3, 4, 5 and 8 of the Ahoada West Local Government Area did not effect, or could not have substantially affected the out come of the said election.

It is evident from the record, that the lower tribunal had found at page 425 of the said record that the absence of the alleged unit agents to give account of what really took place at the units and ward levels is total to the petitioner case, According to the lower tribunal-

A critical look at the testimonies of PWs I, II and III reveal that the burden placed on the petitioner who has alleged diversion of Electoral materials, Hijacking, fraud and intimidation which in them does are criminal in nature is not discharged. It is the law that a party alleging electoral malpractices and sundry offences as in the instant case must prove them beyond reasonable doubt. The law further requires such a petitioner to show that such malpractices affected the total result of the Election. Reliance is placed on BUHARI VS OBASANJO (2005) 13 NWLR (pt. 94.1) 1. On the said allegations, petitioner must provide eye witnesses account to prove same and not Hearsey evidence. Out of the two hundred alleged monitors engaged by the Petitioner on the Election Day, flat a single one of them was invited to give account of what transpired at the unit level. PWS I, II and largely depended all GSM information per second per second according to the petitioner and such, are Hearsay Evidence of what took place in all other polling units and wards where they ere not physically present during the election.

We are of a strong opinion that the absence of the alleged unit’s agents to give account of what really look place at the units and ward levels is fatal to the petitioner’s case. See the case of EZEMBA vs. IBENIEME (2004) 7 S.C. (part.1) page 45 at 56. We are in agreement with 1st Respondent’s Counsel that Hearsay Evidence is not admissible in prove of criminal offences of the nature raised by the petitioner. The petitioner must provide eye witnesses of all the allegations in the polling units and wards to testify. On Hearsay Evidence, see EZEAZODOSIAKO vs. OKEKE (2005) 16 NWLR (pt. 952).

However, regarding the issues of absence of voters register, cancellation of election in wards 3, 4, 5 and 8 in question, and failure to tender forms EC8A(I) were held by the lower tribunal “to be live issues to be critically looked at.” I am satisfied that the lower tribunal had aptly evaluated the pleadings and the evidence alluded thereon by the parties before coming to the conclusion as it did, thereby nullifying the election in dispute and ordering for the conduct of another election, within 90 days from the date of the delivery of the judgment.

Thus, the answer to issue No.4 is inevitably in the affirmative, and same is accordingly hereby resolved in favour of the 1st Respondent.

ISSUE NO.5

The fifth issue raises the vexed question of whether or not the lower tribunal was right to have ordered for a bye election in view of the fact that the 1st Respondent did not lead any evidence in proof of paragraph 4 of the petition. The said issue was distilled from ground 8 of the grounds of appeal. The argument thereon spans pages 24 – 26 of the Appellant’s brief. As already alluded to above, paragraph 4 of the petition relates to the three separate reliefs sought by the 1st Respondents, thus:

1) A DECLARATION that the election purported to have been held or conducted by the 1st Respondent at Ahoada West Local Government Area Constituency II on Saturday, the 14th day of April 2007, was invalid by reason of corrupt practices and non Compliance with the provisions of the electoral act or Declaration that the election is null and void on the grounds that the manifest irregularities contravened fundamental provisions of the Electoral Act, 2006 which completely changed and/or mired the result of the election substantially.

2) A DECLARATION that MR. HOPE IKIRIKO the 2ND Respondent was not duly elected majority of lawful votes at the election.

3) AN ORDER of this Honourable Court directing the 1st Respondent to conduct a fresh election for Ahoada West Local Government Area Constituency.

Undoubtedly, there is no gainsaying the fact that having answered issues 1, 2, 3 & 4 in the affirmative, the answer to issue NO.5 ought to likewise be in the affirmative. To further dwelling on issue No.5 would certainly amount to an academic and rather wasteful exercise. And I so hold. Thus, the said issue No.5 is accordingly resolved in favour of the 1st Respondent.

ISSUE NO.6

The sixth issue raises the question of whether the judgment of the lower tribunal is not against the totality of the evidence led. The answer to that issue is most certainly in the affirmative as well. In my considered view, where a court or tribunal has evidently properly evaluated the evidence adduced by the parties at the trial, and aptly arrived at a conclusion, one way or the other, the decision or judgment thereof can not be said to be against the totality of evidence. And I so hold. The issue NO.6 is accordingly resolved in favour of the 1st Respondent.

Hence, in view of the foregoing postulations, I have no hesitation whatsoever in coming to the imperative conclusion that this appeal is grossly devoid of merits and same is hereby dismissed by me.

Resultantly, the judgment of the lower tribunal delivered on 17/3/08, nullifying the declaration and return of the Appellant as the winner of the 14/4/2007 election in Ahoada West Local Government Area, and ordering for a bye-election within 90 days from that date, is hereby affirmed.

The 1st Respondent shall be entitled to N30, 000.00 costs against the Appellant.

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Other Citations: (2009)LCN/3187(CA)