Atanda Gasali Lawalv. Isiaka Magaji & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

Elections were conducted into the various Houses of Assembly all over the country on the 14th April, 2007. The Appellant herein, Atanda Gasali Lawal, contested the Kwara State House of Assembly Election for Afon Constituency in Asa Local Government Area on the platform of the Democratic People’s Party (DPP). The 1st Respondent, Isiaka Magaji, was also a contestant and the flag bearer of the 2nd Respondent, Peoples Democratic Party (PDP) in the said election. At the close of the election, the 1st Respondent of the PDP was declared and returned as the winner.

Dissatisfied, the Petitioner filed a Petition before the Governorship and Legislative Houses Election Tribunal sitting at Ilorin on the 15th May, 2007. Therein, he complained that the return, declaration, announcement or proclamation of the 1st Respondent as winner of the said election by the 5th Respondent, i.e. the Electoral Officer Asa Local Government Area of Kwara State, was wrongful as the election was invalid by reason of corrupt practices, widespread and massive election malpractices and substantial noncompliance with the provisions of the Electoral Act, 2006. At the close of trial, Judgment was delivered on the 14th March, 2008 dismissing the Petition for lacking in merit.

Aggrieved, the Appellant filed this Appeal.

At the hearing of the Appeal, Mr. Jawondo, learned Counsel for the Appellant, adopted the Appellant’s Brief of Argument dated 8th and filed on 9th September, 2008, as well as the Appellant’s Reply Brief dated and filed 26th February, 2008. He relied on both Briefs as the Appellant’s arguments in the Appeal. In respect of Issue NO.2, Counsel made a few additional submissions. He submits that by virtue of Sections 16, 73 and 159 of the Electoral Act, 2006, the Voters’ Registers used in the election are not the same as envisaged by Section 16 of the Act. By virtue of Sections 73 and 159, there is no way that a party can have the Voters’ Registers used in the election. Instead, INEC is to have exclusive custody of all materials used in the election, including the Voters’ Registers. Therefore, a party or candidate cannot have a certified true copy of the Voters’ Registers used in the election except by an order of the Tribunal or Court under Section 159 of the Act. Thus, Section 16 will not cure the failure of INEC to produce the Voters’ Registers used in the election. He therefore prayed the Court to allow the Appeal.

Mr. Issa, learned Counsel for the 1st Respondent, adopted the 1st Respondent’s Brief of Argument dated 26th September, 2008 and deemed filed on 2nd March, 2009.

He cited as an additional authority the case of Buhari V INEC (2008) 12 SC (Pt. 1) 1 at 169 in respect of paragraph 8.7 at page 17 of the Appellant’s Brief. He submits that proof of election petitions is based on both documentary and oral evidence and the evidence of three eye witnesses was not sufficient to prove allegations of malpractices in 43 Polling Units. He therefore urged the Court to dismiss the Appeal for lacking in merit.

Mr. Ibraheem, learned Counsel for the 2nd Respondent, equally adopted the 2nd Respondent’s Brief of Argument filed on 25th March, 2009 but deemed filed on 30th March, 2009. In respect of the issue of the production of the Voters’ Registers, Counsel submits that the failure to produce same by INEC was duly explained and was beyond INEC’s control. In the light of the explanation given, the Appellant still proceeded with the Petition. He submits that the failure to produce the Voters’ Registers has not led the Appellant to suffer any miscarriage of Justice. He urged the Court to resolve Issue NO.2 against the Appellant, and to therefore dismiss the Appeal.

Finally, Mr. Salako, learned Counsel for the 3rd to 5th Respondents, adopted the said Respondents’ Brief of Argument dated and filed 22nd September, 2008 as the Respondents’ arguments in this Appeal and urged the Court to dismiss the Appeal.

The Appeal is predicated on ten (10) grounds as adumbrated in the Appellant’s Notice and Grounds of Appeal. From these grounds, the Appellant distilled three (3) issues for determination by this Court. The 1st, 2nd and 3rd to 5th Respondents equally formulated issues which, for the most part, overlapped the issues formulated by the Appellant. I therefore adopt the issues formulated by the Appellant as the issues for determination in this Appeal. I set them out hereunder:

1. Whether or not the Tribunal is right in rejecting or excluding from evidence Form EC8A(1) and the Declaration of Result Form on the ground that copies of the result were not made to accompany the Petition nor listed in the List of Documents filed along with the Petition.
2. Whether or not the Tribunal was right in its failure to consider and pronounce on the issue of refusal of the 3rd – 5th Respondents to produce the Voters’ Registers used for the election despite the service of a subpoena duces tecum on them.
3. Whether or not the Tribunal properly considered and evaluated the evidence before it and was right in its decision that the Petitioner/Appellant failed to prove the alleged electoral malpractices, irregularities and non-compliance with the Electoral Act and Guidelines/Manual alleged in the Petition as required by law having regard to the oral and documentary evidence before the Tribunal.

Issue NO.1: Whether or not the Tribunal is right in rejecting or excluding from evidence Form EC8A (1) and the Declaration of Result Form on the ground that copies of the results were not made to accompany the Petition nor listed in the List of Documents filed along with the Petition.

Under this issue the Appellant submits that the Tribunal erred and misdirected itself in law when it rejected or excluded from evidence the results of the election from Polling Stations (Form EC8A(1)) and the Declaration of result Form on the ground that the certified true copies of the result forms were not listed in the administrative or technical names given to them by INEC in the List of Documents filed along with the Petition. Learned Counsel for the Appellant, Mr. Jawondo, contends that the fact of the results of the election were pleaded in paragraphs 10, 12, 15 and 17 of the Petition and notice was given that results of the election at various stages of the election would be relied on. He also contends that they are pleaded as item 8 on the List of documents attached to the Petition as “Summary of April 14th 2007 result sheets and collation forms, Ballot Papers (fake and genuine)”. In addition he argues that the 1st Respondent in his Reply to the Petition pleaded them in paragraph 33 thereof as well as in his List of Documents to be relied upon in the trial.

Counsel submits that the effect of Paragraphs 1(1) (c), (2) and 4(8) of the Tribunal and Court Practice Directions, 2007 is that documents, etc, that are not filed along with the Petition or Reply or not listed in the List of Documents, cannot be received in evidence without the leave of the Tribunal or Court. He contends that the rules do not require documents to be stated in their technical names such as Form EC8A (1) EC8B (1), etc, as the Tribunal’s approach implied. He therefore submits that the rejected documents are admissible and were wrongly rejected. This is more so as Sections 64, 65, 70, 72 and 75 of the Electoral Act, 2006 refers to “Results” as the outcome of the polls at the polling stations, collation centers and the final announcement. Counsel relies on IBWA Ltd V Imano (Nig) Ltd (2001) 3 SCNJ 160 at 176 to submit that the failure to use the technical name given of the stage-by-stage results is not fatal.

Counsel argues in the alternative that the rejection in evidence of the results is erroneous in law since the documents were pleaded in paragraphs 19 and 33 of the 1st Respondent’s Reply to the Petition and listed as No. 1 on the List of documents to be relied on by the 1st Respondent. The Appellant was therefore entitled to take advantage of those pleadings. Dagaci of Dere V Dagaci of Ebwa (2006) 1 SC (Pt. 1) 87 at 136 is relied on. He also relies on Ipinlaye V Olukotun (1996) 6 NWLR (Pt. 453) 148 & Allied Bank of Nig. Ltd V Akubueze (1997) 6 NWLR (Pt. 509) 374 to submit that what governs admissibility is relevance, and documents in support of facts pleaded by any of the parties are admissible. He concludes with the submission that the rejection and exclusion of Form EC8A (1) in evidence by the Tribunal occasioned a miscarriage of Justice and prays the Court to allow the Appeal on this issue.

The 1st Respondent, on his part, submits that this issue borders on the rejection by the Tribunal in evidence of the Form EC8A (1) and Declaration of Result Form on the ground that copies of the results were not made to accompany the Petition nor listed in the “List of documents/exhibits” filed along with the Petition. Learned Counsel for the 1st Respondent, Mr. Issa, submits that the Tribunal was right in law to have rejected or excluded the documents in evidence for lack of compliance with the Tribunal and Court Practice Directions, 2007 Paragraphs 1(1) (c), (2) and 4(8) thereof. These Paragraphs require that copies of all documents to be relied upon at the trial must be filed along with the Petition. The mere listing of the documents without filing same does not satisfy the requirements. The failure of the Appellant to file Form EC8A(1), etc, simultaneously with the Petition is a gross violation of the Practice Directions. He relies on Okereke V Yar’Adua (2008) 4-5 SC (Pt. 1) 2006 at 228-229 to submit that compliance with the Practice Directions is mandatory. He points out that even though Paragraph 4(8) provides that where such copies are not so filed, the Petitioner must seek the leave of the Tribunal and show exceptional or extreme circumstances before such documents can be received in evidence at the hearing, there is nothing on record to show that such leave was sought for by the Petitioner. Counsel distinguishes the cases of Dagaci of Dere V Dagaci of Ebwa (Supra) and Ipinlaye V Olukotun (Supra) relied upon by the Appellant and submits that those cases were decided on rules of pleadings simpliciter. He submits that the filing of copies of documents to be relied on at the trial is intended to give adequate notice to the other party of the nature and type of documents the Petitioner intends to rely on at the trial. He argues that the rules of pleadings have been modified by the Practice Directions which set out the procedure to be followed at the trial. Counsel therefore submits that the Tribunal was right to have rejected the documents in evidence and urged the Court to dismiss the Appeal on this issue and uphold the Judgment of the Tribunal.

For the 2nd Respondent, it is submitted that an Election Petition is sui generis.

The procedure is not governed by the ordinary rules of civil procedure since time is of the essence in this nature of proceedings. It is governed by the Court Practice Directions No. 1 of 2007. These Practice Directions must be fully complied with and reliance is placed on Abubakar V INEC (2004) 1 NWLR (Pt. 854) 207 at 231. Mr. Ibraheem of Counsel submits that the Appellants defaulted in complying with the provision of Paragraphs 1 (1) and (2) of the Practice Directions by not attaching the documents he intended to rely on at the trial or listing same. He attempted to tender the alleged Declaration of Result and Statement of result of polls from Polling Stations but his Statement on Oath did not state same before the Tribunal. He disputed the submission that Paragraphs 10, 12, 15 and 17 of the Petition can remedy this default because they did not specifically plead the Declaration of result Form and the Result of Election from Polling Station also known as the Form EC8A. Since there are several Forms connected with elections, the specific Form to be relied on at the trial must be pleaded, attached and listed before it can be admitted in evidence. Counsel argues that the Appellant cannot also rely on Paragraph 33 of the 1st Respondent’s Reply to the Petition because it also did not plead the Declaration of Results Form. In addition to which, unlike in civil proceedings, the Practice Directions do not allow a party to an Election Petition to tender any document that is not pleaded or listed by the party in his pleadings. Counsel also disputes that the Documents sought to be tendered were rejected for not having been listed in their administrative or technical names. The Appellant had the option of coming under Paragraph 4(8) of the Practice Directions to seek leave to tender the said documents, but he did not. He therefore submits that the Tribunal was right to have refused to admit the documents in evidence.

Further, Counsel submits that the Petitioner failed to plead specifically the Polling Units where his complaints relate to in order to establish the nexus between the Petition and the documents sought to be tendered. The Appellant cannot take advantage of his failure to comply with the Practice Directions to rely on the pleadings of the other Respondents. He also distinguished the cases of Dagaci of Dere V Dagaci of Ebwa (Supra), etc, cited as this is a clear case of non-compliance with the mandatory rules of the Election Tribunal. He urged the Court to resolve this issue against the Appellant. Mr. Salako for the 3rd to 5th Respondents submits that the Tribunal was right in rejecting the Declaration of result – Form EC8E1, and 45 copies of Results from Polling Stations – Forms EC8A1, as they were neither listed in the ‘List of Documents’ in compliance with Paragraph 4(8) of the Practice Directions, 2007 nor referred to by the witnesses in the statements on oath. They also submit that the Tribunal was right in its decision refusing the second application of the Appellant to inspect documents on the ground of issue estoppel. He contends that the Appellant, in the course of his evidence-in-chief as PW10, sought to tender in evidence certain documents among which were 45 copies of the Statement of result of Polls from polling Stations (Form EC8A(1)).

Whereas the Court admitted some of the other documents tendered, such as the 8 copies of the Summary of result (Form EC8B(1)), it rejected the application to include a list of other documents that were not attached to the Petition. Counsel submits that in so doing, the Tribunal was right as neither the Declaration of result nor the Statement of Polls from Polling Stations were listed in the list of documents or specifically referred to by the witness in his statement on oath. He therefore similarly urged the Court to resolve this issue in favour of the Respondents.

Findings

For a clear appreciation of the question raised under this issue, Paragraphs 1(1), (2) and 4(8) of the Election Tribunal and Court Practice Directions, 2007 are set out hereunder:

1. Mode of Filing a Petition

(1) All Petitions to be presented before the Tribunal or Court shall be accompanied by:

(a) List of all the witnesses that the petitioner intends to call in proof of the petition;

(b) Written statements on oath of the witnesses, and

(c) Copies or list of every document to be relied on at the hearing of the petition.

(2) A petition which fails to comply with sub-paragraph (1) of this paragraph shall not be accepted for filing by the Secretary.

(3) ………………………….

4. Evidence at Hearing.

(8) Save with leave of the Tribunal or Court after an applicant has shown exceptional circumstances, no document, plan, photograph or model shall be received in evidence at the hearing of a petition unless it has been filed along with the petition or reply in accordance with these Directions.

(Underlining mine for emphasis)

The purport of these provisions is very clear and does not require to be greatly enhanced by any vigorous explanation by this Court. In the con of this Appeal, Paragraph 1(1) (c) mandates that every petition presented before an Election Tribunal ‘shall’ be accompanied by copies or a list of the documents which a petitioner intends to rely on at the trial. This Court has previously in a matter, which is virtually on all fours with the instant case, held that the word ‘shall’ in this rule is more directory than mandatory. See INEC V Iniama (2008) 8 NWLR (pt. 1088) 182. We will go into the ramifications of this anon. Nevertheless, by this Direction, before an election petition is presented for filing, it must, among other things, be accompanied by copies or list of the documents to be relied on at the trial. Where there is a default, then the Petition shall not be accepted for filing by the Secretary. However, the question arises as to what happens where a Secretary has, inadvertently, accepted the Petition in spite of such a default? In the face of this obvious default by the Petitioner, the Petition may not be thrown out on the grounds of incompetence since the days of technicalities are long since gone in our Nigerian Jurisprudence. However, the result or upshot of this default is that the defaulter will not be allowed to tender any document which has not been so attached or listed in the list accompanying the Petition in view of the express wordings of Paragraph 1(1) (c) of the Practice Directions.

This distinction was brilliantly articulated in the case of INEC V Iniama (Supra).

Therein, the Respondents had similarly filed an election petition in which they defaulted in filing along with their Petition copies or a list of some of the documents pleaded which they intended to use at the hearing. The Appellants filed an application asking that the Respondents’ Petition be struck out in its entirety for being irregular and incompetent in that the Petitioners failed to comply with the mandatory provisions of Paragraphs 1(1) (c) & (2) of the Practice Directions, 2007. The Appellants contended that the non-listing of the documents mentioned in paragraph 7(xviii) of the Respondents’ Petition made it incompetent, thereby robbing the Tribunal of jurisdiction to hear the Petition, as a condition precedent had not been fulfilled. The Tribunal, in dismissing the objection, held inter alia that the failure to list or attach copies of the documents was not fatal to the Petition but only prohibited the Respondents from tendering and relying on such documents at the hearing. Owoade, JCA, delivering the unanimous decision of the Court of Appeal, Calabar Division on this issue intoned thus at pages 200-201 of the report:

“It seems to me that the general intendment of the draftsman in paragraph 1of the Practice Direction 2007 is to encourage and enforce “front-loading” as a principle of our modern civil procedure system so that a (defendant) would have full knowledge and adequate notice of the case of the (plaintiff) so as to avoid delay in trials and fulfill the objective of speedy administration of Justice.”

His Lordship continued his exposition of the law thus:

“However the consequences of the word ”shall” both to paragraphs 1(1) (a) and 1(1) (c) of the Practice Direction are to be found in the paragraphs themselves.

Thus, the word ”shall” in paragraphs 1(1) (a) for example was deliberately watered down by the subjective requirement of “the number of witness … the petitioner intends to call in proof of the petition” and in paragraph 1(1) (c) also by the subjective expression ”lists or every document to be relied on at the hearing of the petition. ”

The meaning of the word ”shall” in paragraph 1(1) (c) of the Practice Direction is clearly provided for in the expression ”to be relied on at the hearing of the Petition”. The negative consequence of the disobedience of the petitioner to the expression of command ”shall” in paragraph 1(1) (c) is that he would not be able to rely on any such documents not so listed at the hearing. Sub-paragraph 2 of paragraph 1 of the Practice Direction gave the Secretary of the Tribunal a statutory and ministerial duty not to accept a petition which fails to comply with sub-paragraph (1) of paragraph 1 of the Practice Direction. Where as in the instant case, the Secretary accepted a ‘defective petition’ that is one which did not list every document to be relied on at the hearing, the consequences still as contemplated by the wordings of paragraph 1(1) (c) itself, that is, that the Petitioner would be taken not to have intended to rely on such a document not so listed. ”

The erudite Justice thus concluded:

“But for the sheer fulfillment of the provision of sub-paragraph 1, or what I now refer to as the “accompaniment rule” in sub-paragraph 1, the determination of the competence or incompetence of a petition stops at the table of the Secretary to the Tribunal. The only ‘punishment’ for disobedience being the inability of the petitioner to rely on document not attached or listed as required in the provision.”

I find myself in complete agreement with the analysis of sub-paragraph 1 of paragraph 1 of the Practice Directions by Owoade, JCA. The above position is premised on the established principle of law that if the language used by the lawmaker is clear and explicit, the Judge must give effect to it because in such a situation, the words of the statute speak the intention of the legislature and no extraneous aid should be used to distort such a clear intention. See Ugwu V Ararume (2007) 12 NWLR (pt.1048) 367 at 432; Bakare V INEC (2007) 17 NWLR (pt. 1064) 606 at 621; AG Ekiti State V AG Federation (2001) 10 SCNJ 117 at 146. It is quite evident, at least to me, that the intention of the authority under which these Directions were made is that whereas a Petitioner found in default of the requirements in that paragraph may be allowed to proceed with his Petition, nevertheless, he will be limited to adducing evidence only to the extent of his compliance with the direction. Let me make myself clearer. Where a Petitioner defaults in listing or attaching copies of all the documents he intends to use in the proof of his Petition, (ditto the Respondent in defence of the Petition), he will not be allowed to adduce evidence thereon at the hearing. In other words, whereas the failure to list or attach these documents will not by itself invalidate the Petition, the consequence of his disobedience is that he would not be able to rely on the documents not listed in compliance with the Practice direction at the hearing of the Petition. In effect, the omission to list or annex a copy of a document pleaded does not amount to such non-compliance with the rules as to affect the validity of the suit, but it has the salutary effect of depriving the Petitioner of the use of the document, the copy of which he did not file or include in the list of documents to be relied on, even though he pleaded same.

Learned Counsel for the Appellant has vociferously argued that the Declaration of result and the Statement of result of polls from Polling Stations (Form EC8A (1)) were pleaded in paragraphs 10, 12, 15 and 17 of the Petition and was, for that reason, admissible in evidence on the ground of relevance. However, in view of the express wordings of Paragraph 1(1) (c), it is immaterial that the Appellant has pleaded these documents in his Petition. The law is now trite that election proceedings are sui generis, and so special rules have been made for the very purpose to expedite hearing in this class of Petitions. The rules of pleadings that apply in ordinary civil cases in archetypal courts do not apply with equal force to this nature of proceedings before the Tribunals. I respectfully invite Uwaifo, JSC to give some elucidation on the nature of election Petitions, as he did in Buhari V Yusuf (2003) 6 SCNJ 344 at 359:

“An election petition is heard and determined by an appropriate election tribunal as usually provided by the Constitution … The jurisdiction of an election tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case: See Onitiri V Benson (1960) SCNLR 324 at 317. It is plain that the proceedings are special for which special provisions are made under the Constitution … Election Petitions are distinct from the ordinary civil proceedings ………It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition… so an election petition is neither seen as a civil proceeding in the ordinary sense nor of course a criminal proceeding. It can be regarded as a proceeding sui generis.”

Practice Directions direct the practice of the court in a particular area of procedure of the court. They are described as a written explanation of how to proceed in a particular area of the law in a particular court. Practice is our adjectival law, that is, the law regulating procedure, for example of pleading, procedure, evidence, etc. They are rules of civil conduct which declare the rights and duties of all who are subject to the law and who come before the court to seek redress. See Buhari V INEC (2009) ALL FWLR (Pt. 459) 419 at 513. They have the force of law in the same way as rules of court.

Rules of Court include Practice Directions. It is only when Practice Directions are in conflict with the Constitution or the statute which enables them that they will not have the force of law. See Buhari V INEC (Supra) at 513; Abubakar V Yar’Adua (2008) ALL FWLR (Pt. 404) 1409; (2008) 4 NWLR (pt. 618) 405; Okereke V Yar’Adua (Supra); Owuru V Awuse (2004) ALL FWLR (Pt. 211) 1429; Haruna V Modibbo (2004) 16 NWLR (pt. 900) 487.

To make matters worse, it is not true, as submitted by the Appellants, that these documents were pleaded in paragraphs 10, 12, 15 and 17 of the Petition. At best, an oblique but vague reference was made in extremely general terms to “other documents relevant to the petition”. In like vein, they cannot be said to have been listed in the “List of Documents to be relied on” filed by the Appellants. A cursory examination of the relevant paragraphs referred to in the Petition will bear this out.

“10. There was massive thumb printing of ballot papers at the various Police Stations in some of the Local Government Areas in the State after the ballot boxes and papers were supposedly moved to the Police Stations for security reasons.

12. The agent of your petitioner’s party and other political parties who fielded candidates in the said election other than those of PDP and those planted by the PDP were consequently prevented from signing the electoral form or obtain copies thereof as prescribed by the guidelines to the petition.
13. Your petitioner pleads and shall also found upon membership cards, tags and letters of accreditation of his party agents, monitors and the report of Observers reports of experts and such other documents relevant to the determination of this petition. The petitioner hereby pleads and shall rely on the report of the forensic experts in proof of the aforementioned malpractices.
14. Your petitioner shall at the hearing of this petition urge on the tribunal to order or permit a physical inspection of all the ballot papers, statement of results, collation of results and other electoral forms, voters registers and ballot boxes purportedly used in the election in proof of the averments in this petition. ”

(Underlining mine).

The “List of Documents to be relied on” filed by the Petitioner can be found at page 32 of the record. Item 8 referred to therein states thus:

“8. Summary of April 14, 2007 result sheets and collation forms, ballot papers (fake and genuine).”

To be sure, this cannot by any stretch of the imagination extend to listing/itemizing specific documents which would be relied on at the hearing sufficient to enable the Respondents have full knowledge and adequate notice of the case they were coming to meet such as to eliminate the element of surprise, avoid delay in trial and fulfill the objective of speedy administration of Justice at the hearing of election petitions. The Appellants, by item 8 on the list, in the same way, cannot be said to have front-loaded the documents which were subsequently and rightly in my view, rejected by the Tribunal.

In addition, the Appellants have submitted in their Brief of Argument that the learned Judges of the Tribunal erred and misdirected themselves in law when they rejected the documents, (in the Appellants’ words), on the ground that “… Certified True Copies of the result Forms were not listed in the administrative or technical names given to them by INEC in the List of Documents filed along with the Petition”. However, nothing could be further than the truth. What the Appellants have tried to do here is to seek to trivialize the issue and to that end, have tended to make misleading statements.

The core reason for the rejection of the said documents in evidence is the outright noncompliance with Paragraph 1(1) (c) of the Practice Directions. I invite the Tribunal to speak for herself as she did in her Ruling at page 352 of the record. She said:

”In the instant case, the Petitioner in paragraph 10 of his Statement on Oath referred to results of the elections generally. The only result listed in the list of documents that accompanied the petition are “summary of April 14, 2007 result sheets … “.This clearly makes the 8 copies of Summary of results from Polling Stations admissible in evidence and we hereby admit them in evidence as exhibit SAEPT/7/PE1A-1H.

As neither the Declaration of Result nor the Statement of Results of Poll from Polling Stations were listed in the list of documents nor specifically referred to by the witness in his Statement on Oath we have no option other than to reject them there being no application under paragraph 4(8) of the Practice Directions for leave to make the documents receivable in evidence. Both the Declaration of Results and the 45 copies of the Statement of Results of Poll from polling Stations shall be marked as “rejected.”

Thus, the real reason why the documents were rejected was not because they were not given their “technical names” as the Appellants would want this Court to believe, but because they were neither listed in the List of Documents to be relied on as required by Paragraph 1 of the Practice Directions nor were they referred to by the PW10 in his Statement on Oath. They were therefore totally extraneous documents as far as the Petition was concerned. The documents listed in item 8 referred to were “Summary of results from Polling Stations” and these were duly admitted in evidence and marked down as Exhibit SAEPT/7/PE1A- 1H by the Tribunal.

It is very instructive that, although the Rules provide a leeway in Paragraph 4(8) of the Practice Directions for a Petitioner who finds himself in default of this specific Direction to seek the leave of the Tribunal to bring relevant documents in anyway, the Petitioner was unapologetically and obdurately recalcitrant to do so. He cannot therefore expect to find succor in this Court.

Finally, the Appellant contends that, assuming without conceding, that the rejected results were not covered by the Petitioner’s List of documents, the rejection of the documents was still wrong as they were pleaded by the Respondents in paragraphs 19 and 33 of their Reply to the Petition and listed as NO.1 on the “List of Documents to be relied upon” by the Respondents. He submits that the Appellant can lead evidence on pleadings/points raised in the pleadings of the Respondents and he thus, relied on a number of decided authorities, chief amongst which is the Supreme Court decision in Dagaci of Dere V Dagaci of Ebwa (2006) 1 SCNJ 160 at 207; (2006) 1 SC (Pt. 1) 87 at 136 which emanated from the High Court of Niger State sitting at Minna. While this is indubitably good law, the Appellant in this instance cannot take advantage of his failure to comply with the Practice Directions to rely on the pleadings of the Respondents. This is because the principle is not applicable to this class of cases, i.e. election petitions, as the cases cited were decided on the rules of civil procedure of the High Court guiding pleadings simpliciter. The rules of pleading in election petition cases have been greatly modified by the Practice Directions which set out the procedure to be followed at the trial by specifically stating that every document to be relied on must be listed or copies thereof attached to the Petition. As afore stated, the filing of copies or a comprehensive list of the documents to be relied on at the trial is intended to give adequate notice to the other party of the nature of documents the Petitioner intends to rely on. There is no room for trial by ambush or by stealth by any party before the Tribunal. The Appellants cannot hope to rely on cases in which the decisions given were based on rules that are not in pari materia with the Election Tribunal and Court Practice Directions, 2007 (as amended), which spell out rules guiding the hearing of this nature of cases, i.e. election petitions, before a special court set up for that purpose, i.e. an Election Tribunal. For a previous decision to serve as an authority in any given case, it must be conually situated to the facts, law and rules in the case under consideration. Previous decisions do not apply generally across board unless the facts are the same or sufficiently similar and the law/rule applied in the previous case can be said to be in pari materia with that applicable to the case under consideration. For all the reasons stated, I therefore resolve this issue against the Appellants.

Issue NO.2: Whether or not the Tribunal was right in its failure to consider and pronounce on the issue of refusal of the 3rd- 5th Respondents to produce the Voters’ Registers used for the election

despite the service of subpoena ducestecum on them.

Mr. Jawondo submits that the Tribunal erred and misdirected itself in law when it failed to pronounce on the effect of the non-production of the Voters’ Registers used for the election despite the service of a subpoena duces tecum on the 3rd to 5th Respondents. Counsel contends that by Paragraph 12 (1) (2) (4) (5) (7) (8) and (10) of the Petition, the Appellant pleaded instances of electoral malpractices, massive rigging and stuffing of ballot boxes with the connivance and concurrence of the 3rd, 4th and 5th Respondents. He applied and was granted a subpoena duces tecum to compel the 4th Respondent to produce the Voters’ Registers used for the Election in order to prove electoral malpractices and to use same to cross-examine the Respondent’s witnesses.

Despite the order to produce, the 3rd to 5th Respondents refused to produce the registers for inspection and use before the Tribunal. In his final address to the Court below, the Appellant, among other submissions, called on the Tribunal to invoke Section 149 (d) of the Evidence Act against the 3rd to 5th Respondents. However the Tribunal in its Judgment did not consider and pronounce on this. Counsel therefore submits that a Court/Tribunal must consider and pronounce on all issues raised and canvassed before it. Katto V CBN (1991) 12 SCNJ1 at 26 is relied on.

Counsel submits that it is not disputed that the Voters’ Registers used in the election are covered by the pleadings of the Appellant and crucial to the Appellant’s case and a just determination of the Petition. Just as it is not disputed that the 3rd Respondent who has exclusive possession and custody of the Voters’ Registers, (Section 73 of the Electoral Act), refused to produce them, thus making it impossible for the Appellant to use the Voters’ Registers used for the election in the prosecution of the Petition. He submits that the Appellant pleaded the Registers of Voters used for the election and listed them as item number 9 in the Appellant’s “List of Documents”, but that the 3rd Respondent failed and/or refused to produce them. He relies on Nnaji V Agbo (2006) 2 EPR867 at 890. Counsel submits that the Voters’ Registers are the only documents that can be used to prove lack of accreditation pleaded by the Appellant in Paragraph 12(5) of the Petition. Thus, they are important and crucial to the Appellant’s case. As such, the refusal of the 3rd and 4th Respondents to produce the Voters’ Registers used in the election adversely affected the Appellant’s case.

Learned Counsel submits that the Respondents having failed to produce the items listed in the subpoena, the proper thing for the Tribunal to have done was to invoke Section 149(d) against the 3rd Respondent, as the conduct of the 3rd Respondent amounted to preventing relevant and crucial evidence from being placed before the Tribunal in proof of the Appellant’s case. He relies on Okonzua V Amosu (1992) 7 SCNJ 243 at 262; Ojo V Gharoro (2006) 2-3 SC 105 at 145. Counsel therefore urges the Court to invoke Section 149(d) of the Evidence Act against the 3rd Respondent for its failure to produce the Voters’ Registers listed in the subpoena duces tecum duly served on it. For this he relies on Adike V Obiareri (2002) 18 WRN 24 at 57-58; Musa V Yerima (1997) 7 NWLR (Pt. 511) 27; (1997) 7 SCNJ 109 at 124 & 134-135; Chemiron Int’l Ltd V Egbujuonuma (2007) ALL FWLR 444 at 455-456.

Counsel submits that having regard to the Appellants’ allegations of non-voting, multiple thumb-printing of ballot papers and ballot stuffing contained in the Petition, the Voters’ Registers used for the election are very crucial to the proof of the allegations, and having regard to the importance of and crucial nature of the documents which the 3rd Respondent failed or refused to produce at the Trial, the Court is not in a position to say what effect the documents/materials would have had on the outcome of the case.

As such the Appellant prays the Court to order a retrial. Reliance for this is placed on xtoudos Services Nig. Ltd V Taisei (W.A.) Ltd (2006) 6 SC 200 at 216-217; Okwonkwo V Udoh (1997) 7 SCNJ 357 at 359; Feddellah V Arewa iles Ltd (1997) 7 SCNJ202; Musa Sha (Jnr.) Da Rapp Kwan (2000) 5 SCNJ 101 at 120; National Bank of Nigeria Ltd (1994) 4 SCNJ (pt. 1) 65 at 76. He submits that the failure of the Tribunal to pronounce on the issue occasioned a miscarriage of Justice to the Appellant. Counsel submits that this issue being purely one of law, this Court is in the same position as the Tribunal. Bunge V Gov. of Rivers State (2006) 6 SC81 at 129; Obi V INEC (2007) 9 MJSC 1 at 38 are relied on. He therefore prays the Court to pronounce on the issue. Learned Counsel prays the Court to allow the Appeal on this issue.

Mr. Issa, learned Counsel for the 1st Respondent argues that the 3rd Respondent had given cogent and compelling reasons why it could not produce the Voters’ Registers despite the service of the subpoena on her. The reasons, he contends, as gleaned from pages 344-352 of the record, are principally because the documents had been transmitted to Abuja to be used at the Presidential Election Petition Tribunal. Since the 3rd Respondent cannot be said to have deliberately withheld evidence, the Appellant is not entitled to the benefit of Section 149(d) of the Evidence Act.

Assuming but not conceding that the 3rd Respondent deliberately withheld the Voters’ Registers, Counsel submits that the remedy open to the Appellant is not Section 149(d) of the Evidence Act. He refers to Buhari V Obasanjo (2005) 50 WRN 1 at 101 & 266, where he contends the Supreme Court elaborately settled the law. He submits that under the circumstance, there were options open to the Appellant to take following the explainable delay by the 3rd Respondent in producing the Voters’ Registers. These options were: the Appellant could either lead secondary evidence of the documents or apply for committal to prison. Counsel contends that there is nothing in the record to show that the Appellant utilized any of the options open to him under the law. He argues that it is therefore too late in the day for the Appellant to cry foul at the appellate level having slept on his right. Finally on this, Counsel submits that the failure of the Tribunal to pronounce on the default of the Appellant to utilize the option open to him under the law has not occasioned any miscarriage of Justice. He submits that the cases cited by the Appellant on this issue are therefore not relevant. He urges the Court to dismiss issue number two and to uphold the Judgment of the Tribunal.

Under this issue, Mr. Ibraheem, Counsel for the 2nd Respondent, submits that the record shows that the inability of the 3rd Respondent to produce the Voters’ Registers was not deliberate. Instead from the record, the Appellant was given an opportunity to confirm the veracity of the information by the 3rd Respondent on the production of the Registers. Counsel contests the submission that the Appellant specifically pleaded the Voters’ Registers used in the election and the purpose for which they would be used in the Petition. He also contests the contention that the Petitioner pleaded over-voting to warrant the necessity of the Voters’ Registers. He therefore submits that the Petitioner failed to plead and produce evidence of the consequence the Voters’ Registers would have on the election dispute, and no witness gave evidence to that effect. He argues that the address of Counsel cannot take the place of pleadings and evidence.

Counsel submits that the call for the invocation of Section 149(d) of the Evidence Act is misconceived, because, even assuming that the Voters’ Registers were pleaded as well as the use they would be put to, and over-voting, the latter if successfully raised amounts to a criminal allegation, which, in an election Petition, must be proved beyond reasonable doubt. Thus, Section 149(d) of the Evidence Act cannot be invoked in criminal or quasi-criminal proceedings against an accused person.

In respect of the submission that the Tribunal failed to pronounce on the issue which was raised and canvassed, Counsel submits that this is misconceived. Only two issues were formulated by the Petitioner and adopted by the Tribunal, and these were adequately considered and resolved against the Appellant. He thus urged the Court to resolve this issue against the Appellant.

Quite amazingly, the 3rd-5th Respondents, to whom the subpoena duces tecum was directed, made no submissions at all on this issue.

In reply to the issues raised by the. Respondents herein, the Appellant submits that by the subpoena duces tecum at pages 246-247 of the record, the 3rd -5th Respondents were asked to produce the “Computerized Voters’ Registers used for the Election” and not Certified True Copies. He argues that it is within the absolute prerogative of a party to decide what category of evidence (primary or secondary) he wants to use in proof of his case and the opposing party cannot dictate or impose a particular category on him. He relies on Anatogu V Iweka II (2004) 47 WRN 1 at 23- 24. He submits that the attempt by the 3rd to 5th Respondents to compel the Appellant to apply and pay for Certified True Copies of the Voters’ Registers of 45 Polling Units used for the election amounted to an unlawful and unwarranted attempted infraction of the Appellant’s exclusive right to prove his case by his chosen category of evidence. Therefore, he argues, the hurdle placed on the Appellant by the 3rd Respondent’s insistence that he should apply and pay for Certified True Copies of the Registers used for the election amounted to a technical failure to produce the Voters’ Registers used in the election for which Section 149(d) of the Evidence Act could be invoked against the 3rd to 5th Respondents. Counsel submits that the argument that the Appellant should have resorted to secondary copies of the Registers of Voters used for the Election is a wicked proposition as it amounts to asking the Appellant to do the impossible. By Sections 73 and 157 of the Electoral Act, 2006, Voters’ Registers used for the Election are statutorily kept in the exclusive custody of the 3rd Respondent and can only be produced by an order of Court/Tribunal. Since the 3rd Respondent did not make available original copies of the Registers used for the election, Counsel wonders where the Appellant could have been expected to make Certified True Copies. He submits that practically and legally, the Appellant who did not have copies of the Voters’ Registers used for the Election, cannot be expected to have secondary copies of the Voters’ Registers used for the Election. He cites Buhari V Obasanjo (Supra) at 101 to submit that no law envisages or compels the doing of the impossibility.

Findings

The crux of the Appellant’s complaint under this issue is whether the learned Judges of the Tribunal were right in their failure to pronounce on the issue of the 3rd – 5th Respondents’ refusal to produce the Voters’ Registers used for the election despite the subpoena duces tecum served on them. For clarity of argument, I will briefly reproduce the Appellant’s submission on this score as contained in the Petitioner’s final Address to the lower Tribunal at page 272 of the record. On behalf of the Petitioner, Mr. Jawondo prayed thus:

“The petitioner prays the Tribunal to invoke the provisions of Section 149(d) of the Evidence Act and submit that by the provisions of Section 149(d) of the Evidence Act the Voters’ Registers if produced would have been against the respondents and consequently the votes returned at the election. See Okunza V Amosa (1992) 7 SCNJ 243. The petitioner therefore on this score alone prays the Tribunal to hold that the election was not conducted in compliance with the law and Regulations/Manual and set aside same.”

I have examined the length and breadth of the Judgment of the Tribunal as contained in the transcribed record and have satisfied myself that indeed the Tribunal made no comment on this submission and prayer by the Petitioner. Now the law is indeed trite that a court has a duty to pronounce on all material issues raised before it.

See Olowolagbe V Bakare (1998) 2 NWLR (Pt. 543) 528 at 534; Ukpai V Okoro (1983) 2 SCNLR380. However, the consequence of a court not complying with this general rule depends on the facts and circumstances of each case. See State V Ajie (2001) 7 SCNJ1 at 10; Bamaiyi V State (2001) 4 SCNJ 103.

The correct effect of a failure by a trial Judge to consider and decide on a vital issue placed before him is not a denial of fair hearing to either of the parties, but an abandonment of a duty placed on the Judge to adjudicate. It is the duty of a court, whether of first instance or appellate, to consider all the issues that have been joined by parties and raised before it for determination. If the court failed to do so without a valid reason, then it has certainly failed in its duty.

In our judicial system, it is a fundamental principle of the administration of Justice that every court has a duty to hear, determine and resolve such questions. However, failure on the part of a court to consider all the issues that have been joined by the parties and raised before it for determination, mayor may not result in the setting aside of the decision reached depending on whether or not a miscarriage of Justice is occasioned thereby. Hear the admonition of the esteemed Ogundare, JSC, (of blessed memory) on this subject in Uka V Irolo (2002) 7 SCNJ 137 at 164, 168:

“To shy away from doing one’s duty is not an attitude to be encouraged. It is a lapse in the performance of one’s duty. Where such a lapse has occasioned a miscarriage of Justice, an appellate court must not hesitate to intervene and set aside a verdict resulting therefrom … It is a misdirection to say that because the trial Judge fails to resolve an issue before him there is a breach of fair hearing rule. It is also a misdirection to say that where there has been a miscarriage of Justice as regards an issue all other findings in the Judgment are perverse… To constitute a miscarriage of Justice, there must be such a departure from the rules which permeates all judicial procedure as to make what happened not in the proper sense of the word a judicial procedure at all. ”

I am thus of the humble but firm view that the argument by learned Counsel for the Appellant that the Tribunal neglected to pronounce on the presumption of fact which he urged it to invoke under Section 149(d) of the Evidence Act is of no significance in view of the fundamental flaw or paucity in his submission thereon in respect of the production of originals of public documents as we shall see presently. A Judgment is not bad merely because the Judge has not set out seriatim his reasons on each of the specific complaints. See Agu V Nnadi (2002) 12 SCNJ 238 at 248-249. A Judgment is only flawed if a vital or crucial issue in the case is left unresolved. Whether a vital issue has been left unresolved, however, depends on what the essential issues in the case are and how the court has dealt with them. Where, however, a trial court fails to advert its mind to and treat all issues in controversy fully, and there is sufficient material before the appellate court for the resolution of the matter, an order of retrial will not be made. An appellate court is, in the circumstance, in as good a position as the lower court was, to make pronouncements on the issue. See Ogunsola V APP (2004) 1 EPR539 at 565; State V Ajie (Supra) at 11; Awote V Owodunni (No.2) (1987) 2 NWLR (Pt. 57) 367 at 369; Okeowo & Sons V Migliore & Others (1979) ANLR 280 at 381. In the light of these principles of law as laid down in a surfeit of cases just referred to, it is my considered view that the failure by the Tribunal to pronounce one way or the other on the prayer of the Appellant for the invocation of Section 149(d) of the Evidence Act against the 3rd to 5th Respondents is not fatal to the proceedings and certainly does not warrant the order of retrial sought. This is because since this is a matter purely of facts, and all the submissions of the parties are contained in the record of the lower Tribunal, this Court is in as good a position as the Tribunal to pronounce on the issue. However, before then, in the light of the 2nd Respondent’s submissions, a distinction must be made between an issue for determination upon which parties have joined issues and the call by a party for the invocation of a presumption of law.

Issues for determination by a court are in the normal course of events drawn from the pleadings of the parties. In Lewis & Peat V Akhimien (1976) 7 SC 157, Idigbe, JSC, observed that:

“When as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question thus raised is an issue of fact.”

When an issue of fact is so joined, the duty on the trial court is to consider the evidence called by the parties on the issue so joined. See Nkuma V Odili (2006) 3 SCNJ 31 at 44. In Bello V Eweka (1981) 1 SC 101 at 118, the Supreme Court per Eso, JSC, also observed:

”It is my considered view, my Lords, that in a case where pleadings have been settled (as in the instant case) the trial court, in consideration of such a case would first set out the issues as have been joined by the parties on the pleadings, then consider the evidence by both parties in support of such issues as joined and the consideration of the evidence shall be in line with the decision of this Court in A.R. Mogaji & Ors v. Madam Rabiatu Odofin & Anor. (1978) 4 S.C 91 at 94 ”

As a matter of general principle, a court should deal with and determine all the issues placed before it for determination. There are, however, some recognized exceptions, such as where the case is to be sent down for re-trial by an appellate court, then it would be improper for such court to proceed to determine in advance that which it has remitted to the trial court to determine. See Fombo V Rivers State (2005) 5 SCNJ 213 at 225; Okonji V Njokonma (1991) 2 NWLR (Pt. 202) 131 at 146; Balogun V Labaran (1988) 3 NWLR (Pt. 80) 66 at 80.

On the other hand, the term “presumption” in its legal sense is used to “designate an inference, affirmative or dis-affirmative of the existence of some facts, drawn by a judicial Tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the Tribunal.” See Contemporary Issues & Responses in Contemporary Evidence Law in Nigeria by C.C. Nweze at page 117. Put simply, a presumption is “a conclusion which

a court either has an obligation or discretion to draw from a set of facts presented to it.” Presumptions under Section 149 of the Evidence Act, being presumptions of facts, have been termed as discretionary. They are therefore not mandatory.

Section 149(d) of the Evidence Act deals with withholding evidence, that is, that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. See SPDC (Nig.) Ltd V Tiebo (196) 4 NWLR (pt 445) 657; UBA Ltd V Ibhafidon (1994) 1 NWLR (Pt. 318) 90 at 119; Ogwuru V CCB (1994) 8 NWLR (Pt. 365) 685; Towolawi V Salpem SPA (2003) 34 WRN 35. This section equally applies to documents. To successfully invoke Section 149(d), the court needs to be satisfied that the evidence exists; such evidence could be produced; it has not been produced and it has been withheld by the person who could produce it. See UBN V Ishola (2001) 15 NWLR (pt.735) 47 at 80-81. Thus, simply not producing evidence would not necessarily amount to withholding it. In other words, the section applies only where it is established that evidence has been suppressed or

concealed. See Nigeria Air Force V Obiosa (2003) 4 NWLR (pt. 810) 233 at 285; Mobil Producing Nig. Ltd V Asuah (2001) 30 WRN25 at 42; Uzoegbu V Progress Bank Nig. ltd (1988) 4 NWLR (Pt. 87) 236 at 248-249.

A party who is in possession of a document but fails to produce it after notice to produce has been issued and served on him may be giving room for the invocation of the presumption. See Ogwuru V C.C.B. (Supra) at 760; Asariyu V State (1987) 4 NWLR(Pt. 67) 709. The trend of judicial opinion however is, that there is a need to exercise caution in making presumptions unless such a presumption is irresistible and overwhelming. See R. V Iregbu (1938) 4 WACA 32.

I agree with learned Counsel for the 2nd Respondent that only two issues for determination were formulated by the Petitioner and these issues, which were adopted wholesale by the Tribunal, were adequately considered and subsequently resolved against the Appellant. Nonetheless, the fact cannot be ignored that, in an attempt to establish his case as set out in his Petition, the Appellant alleged that the 4th Respondent denied him access to documentary evidence which was legally in his custody, and Appellant thus prayed for the invocation of the presumption under Section 149(d) of the Evidence Act.

The position of the law in respect to documentary evidence is that where a party desires to tender a document in evidence which is in possession of his opponent, he shall give the opponent a notice to produce that document at the trial. The opponent is not bound to comply with the notice, but by serving such notice, the party may be entitled to tender secondary evidence of the document if the opponent fails to produce it as requested in the notice.

In addition, non-compliance with the notice may be met by the successful invocation of Section 149(d) of the Evidence Act. See Sections 98, 221 and 222 of the Evidence Act, as well as Order 33 Rules 15 and 16 of the Federal High Court Rules, 2002, and Form 37, (applicable to proceedings in Election Tribunals by virtue of Paragraph 50 of the Rules of Procedure for Election Petitions contained in the First Schedule to the Electoral-Act, 2006). Alternatively, the party may serve on the opponent a subpoena duces tecum. However, where this option is chosen, different considerations, as opposed to the presumption in Section 149(d), apply as discussed hereunder.

A subpoena is a formal document issued by the court commanding a person required by a party to a suit to attend court at a given date, to give evidence on behalf of the party or to bring with him and produce any specified documents required by the party as evidence or for both purposes. The subpoena may be for the person to attend the court and testify only, in which case it is known as a subpoena ad testificandum, or for him to produce a document in his possession or control, when it is referred to as a subpoena duces tecum. For our purposes, this is in Form Forms 39 and 41 of Order 41 Rule 33 of the Federal High Court Rules.

A subpoena duces tecum may be used for the two purposes where the same person is required to testify and to produce documents. A subpoena is an order of the court. Accordingly, if a person summoned to give evidence or to produce a document by it fails to attend to give evidence or to produce the specified documents, such failure or refusal amounts to contempt of court punishable either by a fine or imprisonment or both, unless the person excuses his failure or refusal to the satisfaction of the court. See Order 41 Rule 15 of the Rules.

Failure to obey a subpoena has the same effect as not answering to a summons. The court may thus issue a warrant for the arrest of the defaulting witness or commit him to jail for contempt. See Buhari V Obasanjo (2005) 7 SCNJ1. Uwais, CJN, pronouncing explicitly on a similar issue that arose in that case held as follows at page 52 of the report:

“At any rate, the proper procedure to be followed as a result of the failure to produce the documents, is for the party that needed the documents to adduce secondary evidence of them in accordance with Sections 97(1) (a) and 98 of the Evidence Act or ask the court to compel the defaulter to produce the documents by committal to prison.”

Belgore, JSC, (as he then was) at page 113 of the same report agreed completely thus:

“There were options open to the petitioners for failure to obey subpoena; if they had copies, they could offer secondary evidence of the documents and or initiate committal proceedings for contempt.”

Finally, Edozie, JSC, at page 170 of the report also added his voice to this unanimous verdict:

”Subpoena is a court process commanding any person to attend the court and produce a document or evidence before the court. The effect of failure to answer the subpoena does not lead to an adverse finding against the defaulting party. The Appellant was entitled to issue committal processes or lead secondary evidence on the matter.”

The Apex Court has spoken! Nothing more needs be said, save to follow suit and apply same mutatis mutandis by virtue of the doctrine of stare decisis otherwise known as judicial precedent, since the facts in the Buhari case on this issue are in pari materia with the facts in the instant case.

The facts in the instant case, as divulged in the transmitted record of the Tribunal, are that the Appellants served a subpoenaduces tucem on the 4th Respondent to produce certain Voters’ Registers. These Voters’ Registers, by the combined effect of Sections 10, 18 and 73 are, no doubt, in the custody of the 4th Respondent, i.e. the Chief Electoral Commissioner or any officer so authorized by him. By virtue of Section 109 of the Evidence Act, these classes of documents are public documents being the acts or records of an official body, INEC.

Stroud’s Judicial Dictionary 4th Edition page 2182 defines a public document as one made for the purpose of the public making use of it and one to which the public has access, especially if there is a judicial or quasi-judicial duty to inquire. See Sturia V Preccia (1880) 5 App. Cas. 623 at 643. “Public” in this con means all persons concerned with or interested in the subject-matter of the document and not the whole world at large.

A public document must be made by a public officer. It must be brought into existence and preserved for public use on a public matter and must be open to public inspection. See Sections 109 and 111 of the Evidence Act read together.

While the best and most natural way of proving the contents of a document is to bring the document itself before the Court, (primary evidence by Section 94(1) of the Evidence Act), secondary evidence alone is permitted in proof of the contents of public documents. Such secondary evidence allowed for this purpose is however, by law, only as stipulated in Section 97(1) (e) & (f) and Section 97(2) (c) of the Evidence Act. By these provisions, where the document to be proved is a public document, or one, a certified copy of which is permitted by the Act, a certified copy of the document, and no other kind of secondary evidence, is admissible. In the case of public documents therefore, the only type of secondary evidence permissible is a certified true copy and none other.

A photocopy of a certified true copy of a public document has been held as not admissible as secondary evidence of a public document. See Minister of Lands Western Nigeria V Dr. N. Azikiwe (1969) ALL NLR 49; Obadina Family V Ambrose Family (1969) 1 ALL NLR 49; Aladegbemi V Fasamade (1988) 3 NWLR 129; Nzekwu V Nzekwu (1989) 1 NSCC 581. The scholarly author and erudite Jurist, C.C. Nweze, in his book: Contentious issues and Responses in Contemporary Evidence Law in Nigeria Vol. One at pages 323-325, highlights and analyses the differences in judicial opinion, particularly from this Court, on whether a photocopy of a certified true copy of a public document is admissible under Section 97(2) (c) of the Act. He comes to the conclusion that since there are subsisting Supreme Court decisions on the point, which were decided even before the Court of Appeal decisions, the inference is that the law is currently as stated by the Apex Court, that is, that photocopies of certified true copies of public documents are not admissible. See Minister of Lands, Western Nigeria V Azikiwe (Supra), Omoniyi V Omotosho (1961) 1 ALLNLR304; Jadesinmi V Okotie Eboh (1996) 2 NWLR(Pt. 429) 128; Ade V Adejobi (1986) 1 SC479.

The learned author, Fidelis Nwadialo, in his book: Modern Nigeria Law of Evidence, Second Edition at page 316 postulates that practical considerations make the use of secondary evidence inevitable in proof of public documents in court. The first consideration is that a problem will arise if the original of the same public document is required in two or more courts at the same time, (as happened in the instant case).

And the second is the disorganizing effect on the public service by frequent productions of public records in court as well as the attendant risk of their loss. In Anyakora V Obiakor (1991) 2 NWLR52 at 66-67, the true reasons for the proper authentication of a public document by a designated official to enable its admission in evidence are explained thus:

(1) To obviate the necessity of calling officials to court to testify as to the genuineness of the copies made from original documents or records of a public nature;

(2) To preserve those original documents or records from being removed from their proper place of custody through requests that they be tendered in court.

Section 111(1) of the Evidence Act defines a certified copy of a document and how it is to be obtained. Under it, every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it on payment of prescribed fees, with a certification at the foot of the document that it is a true copy of its original.

By Section 112, such a certified copy may be produced in the proof of a public document of which it purports to be a copy. Apart from this general method of proof of public documents, Section 113 sets out certain specific public documents, the contents of which may be proved in particular ways.

Having set out the principles of law governing the tendering and admission of public documents in evidence, as well as the implication of failure to comply with a subpoena duces tecum, I will proceed to apply the law to the facts of the instant case. By a subpoena duces tecum issued by the Chairman of the Tribunal on 16th October, 2007, the 4th Respondent, namely, the Resident Electoral Commissioner, Kwara State, was ordered by the Tribunal to produce nine sets of documents. The second set of documents on the list was identified thus: “Computerized Voters’ Register (back-up and displayed copies) used for the election”. (See pages 246-247 of the record). On 7th December, 2007, during the hearing of the Petition, when the 4th Respondent was called upon to produce the Voters’ Register, this was the exchange between Counsel for the 4th Respondent, Mr. Aminu, Counsel for the Appellant, Mr. Jawondo and the Tribunal as gleaned from pages 344-346 of the record:

”Jawanda: The case is for continuation of hearing. INEC are under subpoena to produce some documents.

Aminu: With the exception of the Voters’ Register all the documents stated in the subpoena are produced. The voters’ registers were taken to National Headquarters of INEC on the instruction of the National Chairman for the purpose of tendering same before the Presidential Election Tribunal in Abuja.

In compliance with the order of the Tribunal that we should produce the CTC of the Registers Mr. Jacob Ayanda went to Abuja to obtain CTC of the Register but he was informed by the National Commissioner in charge of legal that CTC of the Voters Registers can only be made available to any paw on payment of the requisite fees and that he should advice any paw that requires CTC to apply.

When he came back, Mr. Ayanda sent letters to all parties concerned stating the position and a copy has been served on Mr. Jawanda.

Jawanda: It is true Mr. Ayanda served me a letter dated 05/12 on 06/12/07.

By the content of such letter which was copied to the Secretary of the Tribunal the Voters Registers are in custody of INEC, Abuja and not the Presidential Election Tribunal. Since the documents are still in custody of INEC, INEC cannot erect a barrier on the part of the Petitioner as it is trying to frustrate this Petition. I leave the issue to the Tribunal.

Aminu: I ask for time to produce the Voters Register. The letter written to Mr. Jawondo is to the effect that Voters Registers are still with us at INEC Headquarters. I ask for time to liaise with my clients to produce the documents.

Tribunal: Having admitted that the Voters Registers are still in possession of INEC as Mr. Aminu did. We hereby give the 3rd – 5th Respondents 7 days to produce the Voters Registers. The matter is accordingly adjourned to Friday 14h December, 2007.”

On the return date, the matter was concluded thus as disclosed at page 347 of the record:

”Jawondo: The case is adjourned to today to enable INEC produce Voters Registers for continuation of hearing.

Aminu: Mr. Ayanda told me that he travelled to Abuja and he was informed that the Voters Registers are before the Presidential Election Tribunal in Abuja. That he misunderstood the earlier instruction given to him by the National Commissioner in charge of Legal matter (sic) and he wrote the letter of 06/12 under that wrong impression that the Voters Registers are in the National office of INEC.

Jawondo: I am surprised by the statement. I want an opportunity to confirm the veracity of the information delivered by Mr. Aminu. We doubt the information, we shall continue with my witness.”

(Underlining supplied for emphasis).

That effectively was the end of the matter until the Appellant took the liberty to comment on it his final address before the Tribunal. This is contained at pages 267-276 of the record. Specifically at page 272 thereof, Mr. Jawondo submitted thus:

“From the conduct of the 3rd – 5″ Respondents, it is clear that the Voters’ Registers which are public documents and in custody of the 3rd – 5″ Respondents, are documents which could be produced but which the 3rd – 5″

Respondents refused to produce in flagrant disobedience to the order of the

Tribunal.”

Evidently from these exchanges, learned Counsel for the Appellant was well aware that the documents for which he had served a subpoena on the 4th Respondent were public documents. That being the case, he is presumed to know that the only documents he was entitled to and which the Respondents could legally produce were no more than certified true copies of the documents, being public documents. Assuming he was ignorant of the law, (which as Counsel well knows, is no excuse), he was informed both via a letter from the 4th Respondent written by Mr. Ayanda, (which he admitted receiving), and by Counsel for the 3rd – 5th Respondents in open court that he needed to apply for the certified true copies of the Voters’ Registers from the Commission’s headquarters in Abuja where they had been taken to, and to pay the prescribed fees for their certification. This was not an unreasonable or strange demand as the Appellant would like to portray in view of Sections 111(1) and 112 of the Evidence Act which provide as follows:

111. (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
112. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

(Underlining mine).

It is therefore less than honest for the Appellant to now turn round to accuse the 3rd – 5th Respondents of deliberately refusing to comply with the order in the subpoena duces tecum when it was the Appellant’s Counsel himself who, deliberately and even belligerently, refused to do what he needed to do by law in order to receive the documents he purportedly needed to prove his Petition. By so doing, (i.e. by failing to meet the condition precedent which would give him access to the Voters’ Registers), the Appellant shot himself in the leg, as it were or, cut off his nose to spite his face, so to speak. It is therefore both belated and a waste of time for him to complain at this stage of the proceedings. Thus, while the lower Tribunal could be said to have failed in its duty to pronounce on the prayer contained in the Appellant’s Final address on the consequence of the failure of the 4th Respondent to produce the Voters’ Registers, this cannot be said to have occasioned a miscarriage of Justice in view of the facts and circumstances of the case. Therefore, the invitation to set aside the Judgment of the Tribunal solely on this ground and to order a re-trial is grossly misconceived and so refused. Issue two is thus resolved partly in favour of the Appellant.

Issue NO.3: Whether or not the Tribunal properly considered and evaluated the evidence before it and was right in its decision that the Petitioner/Appellant failed to prove the alleged electoral malpractices, irregularities and non-compliance with the Electoral Act and Guidelines/Manual alleged in the Petition as required by law having regard to the oral and documentary evidence before the Tribunal.

Under this issue, learned Counsel for the Appellant submits that the Tribunal did not properly consider and evaluate the evidence before it and was wrong in holding that the Appellants did not prove the alleged electoral malpractices, irregularities and non-compliance with the Electoral Act and Guidelines/Manual alleged in the Petition as required by law, having regard to the oral and documentary evidence before the Tribunal. The Appellant adopts his submissions under issues one and two, and submits further that on the state of pleadings and evidence before the Court, the Appellant proved their case as required by law. He submits that all the 10 witnesses called by the Appellant, (with the exception of the Appellant who was the candidate at the election), gave direct evidence of what they experienced in the course of the election. However the Tribunal in its Judgment concluded that their evidence was hearsay. Counsel submits that the Tribunal acted in error and by so doing, failed to ascribe due probative value to the evidence of the Appellant and his witnesses. This error, he contends, affected the Tribunal’s approach to the case and its conclusions and thus occasioned a grave miscarriage of Justice. Onisaodu V Elewuju (2006) 7 SC (Pt. II) 45 at 56 is relied on.

The Appellant submits that the Tribunal was wrong to have placed reliance on the evidence of RW9 and RW10 to explain away the non-signing of Exhibits PE1A, 1B, 1E, 1F, 1G and 1H, because the evidence is at variance with the pleadings of the Respondents and also contradicts the evidence of the 1st Respondent as RW8 at page 373 lines 9-14. He submits that this evidence renders the Respondents’ evidence unreliable as the Tribunal cannot pick and choose between the two conflicting positions and evidence of the Respondents. Instead, he argues, the evidence of non-signing of those Exhibits accords with the evidence of the Appellant and his witnesses that the agents of the Appellant were driven away by the combined forces of thugs of the 2nd Respondent and security agents. Counsel submits that in view of the evidence vis a vis the state of pleadings to the effect that the election was characterized by confusion and threatened violence, the burden of proof of that issue is on a minimal scale.

While the Appellant concedes that where criminal allegations are made, they must be proved beyond reasonable doubt, he argues that this does not mean proof beyond every shadow of doubt neither does it mean that a particular number of witnesses must be called before the standard can be achieved. He relies on Usufu V State (2008) ALL FWLR (Pt. 405) 1731 at 1734; Dibie V State (2007) 3 SC (Pt. 1) 176 at 199. Appellant further submits that the Appellant’s case consists of both criminal and non-criminal allegations which are separable and severable and the proof of any is enough to sustain the Petition. See Omoboriowo V Ajasin (2007) 3 EPR 488 at 524- 525; Mil. Gov. V Nwauwa (1997) 2 SCNJ 60 at 71 & 88-89. It is submitted that by the evidence of PWs 1, 2, 4, 5, 6, 7, 8, 9 and 10 which was direct evidence of their personal experiences, the Appellant proved the criminal allegations as required by law. He contends that on the other hand, the evidence adduced through the Respondents’ witnesses was full of contradictions, is unreliable and the Tribunal is not entitled to pick and choose which to believe. Bank of Baroda V Mercantile Bank (Nig.) Ltd (1987) 6 SC 341 at 349-350; Ubani V State (2003) 12 SC (pt. II) 1 at 13-14 are relied upon.

It is additionally submitted that the Appellant proved the non-criminal allegations of non-compliance, irregularities and malpractices by the direct, cogent, credible and unchallenged evidence of the Appellant’s witnesses coupled with the evidence of the RW10 at pages 381-382 of the record and the irregularities and non-compliance disclosed by the Forms EC8A- Exhibits PE.1A, 1B, 1E, 1F, 1G and 1H, and PEA (the ballot paper used in the election. He submits on the authority of Ngige V INEC (2006) 1 NWLR (pt. 999) 1 at 233 that proof in election petitions is based on documentary evidence and not much emphasis is placed on the assessment of oral evidence or the credibility of witnesses.

The Appellant reproduced in his Brief “Tables” ostensibly showing results of elections from certain Polling Stations which are not however tied to or identified with any of the evidence or exhibits before the Court. He contends that the Respondents did not give evidence to explain the irregularities, non-compliance and malpractices disclosed by the results of the election referred to. He therefore submits that the presumption of regularity that inures in favour of the results is rebutted by the irregularities, non-compliance and malpractices disclosed in the contents of the results themselves or by a comparison of the results and Exhibit PEA. He contends that all the votes contained in the Tables 1-7 of his Brief are unlawful votes which ought to be nullified. Counsel submits that the non-compliance and irregularities cuts across 37 Polling Units of the 43 Polling Units in the Constituency. From the 37 Polling Units, the 1st and 2nd Respondents were credited with 12,020 unlawful votes and the Appellant was credited with 2,469 unlawful votes. Deducting the unlawful votes from the total of 15, 636 of the votes credited to the 1st Respondent and 2, 885 votes credited to the Appellant would leave the 1st Respondent with 3,616 lawful votes and the Appellant with 417 lawful votes. He calculates that this amounts to 90% unlawful votes from 37 Polling Units. Therefore, the proper order to be made that will meet with the interest of Justice and ensure compliance with a minimum standard of democratic election, in the opinion of the Appellant, is to nullify the election and order a fresh one in the entire Afon Constituency.

The Appellant contends that having regard to the degree and spread of irregularities, malpractices and non-compliance demonstrated in this case, the election cannot be saved by Section 140 (1) of the Electoral Act, 2006. He refers to Ajadi V Ajibola (2004) 16 NWLR (Pt. 898) 91 at 168. He contends that these substantially affected the result of the election so as to warrant its cancellation. Swen V Dzungwe (2007) 2 EPR341 at 353-356 is relied on. Counsel submits that the evidence on the happenings at the Polling Units for the election is one-sided as given by the Petitioner and his witnesses and supported by result sheets and Exhibit PE4. He therefore argues that the onus of proof of the alleged malpractices, irregularities and non-compliance with the Electoral Act and the Guideline/Manual is deemed proved on a minimal standard, as there is nothing on the other side to contradict the evidence from the Petitioner’s stand. Baba V NCAT Zaria (1991) 7 SCNJ (pt. 1) at 22; Ajadi V Ajibola (Supra) at 27; Usufu V State (Supra) at 1747; Dibie V State (Supra) at 199 are relied on. He concludes that the Appellant’s case remained unchallenged and therefore is entitled to Judgment. He prays the court to allow the Appeal, set aside the decision of the Tribunal and nullify the election and declaration of the 1st Respondent. The 1st Respondent chose to formulate this issue a tad differently and this is his perspective on it:

Whether the Tribunal was right in holding that the Appellant did not prove the allegations of election malpractices, irregularities and non-compliance with the Electoral Act which could be said to have substantially affected the result of the election so as to warrant its cancellation.

In a short answer to this, 1st Respondent submits that the Tribunal properly appraised the evidence before it and came to the right conclusion. He contends that the Appellant did not give evidence of acts that could lead to the cancellation of the election. He refers, for instance, to the evidence of PW1 under cross examination at pages 333-334 of the record where he admits that he was not at Reke Polling Unit but was a supervisor at the Headquarters and received calls from other supervisors as to what was happening. PW2 was also a supervisor. Indeed, a total of six of the Appellant’s witnesses were supervisors. PW10 the Appellant himself admitted that after casting his vote at Laduba Polling Unit, he did not visit any other Polling Unit. He was only informed by his agents that there was violence at the Unit after he left. 1st Respondent therefore submits that the case of the Petitioner was based on hearsay evidence.

Counsel further submits that only three of the witnesses who testified for the Appellant were agents. He therefore concludes that it is unsafe to rely on the evidence of only three witnesses who, he alleges, contradicted themselves, to cancel the election in 43 Polling Units of the Constituency, when the evidence was insufficient, incredible and unreliable.

1st Respondent submits that the election was conducted in substantial compliance with the Electoral Act, 2006. The Appellant and his witnesses did not give cogent evidence of alleged electoral malpractices, irregularities and non-compliance with the Act and Guidelines. He relies on Buhari V Obasanjo (2005) 50 WRN 1 at 94 to submit that the party who asserts the existence of a particular fact must prove such fact by adducing credible evidence or else the case fails.

In respect of the non-signing of the results by the Party agents, reference is made to the testimony of the RW10 at page 379 of the record which indicates the resultant tense atmosphere after the announcement of the results. 1st Respondent therefore submits that the non-signing of the result sheets by the Agents cannot be linked to the act of the 1st Respondent or his agents nor can they be held responsible for the refusal of the Agents to sign the result sheets. He refers to the evidence of the same witness for the reason why some of the agents could not sign the result sheets.

It is further submitted that an elected candidate cannot have his election nullified on the ground of corrupt practices or any other irregularity committed in the process of the election unless it can be proved that the candidate expressly authorized the illegality. Oyegun V Igbenidion (1992) 2 NWLR (Pt. 226) 747 at 759-760; Agomo V Iroakeji (1998) 19 NWLR (pt. 568) 173 are relied on. 1st Respondent submits that the allegations raised by the Appellant as covered by this issue are criminal in nature and the Appellant failed to prove same beyond reasonable doubt as required by Section 138 (1) of the Evidence Act. The Appellant’s witnesses did not offer any clear and unequivocal evidence. See Elebe V Ezenduku (1998) 7 NWLR (Pt. 556) 74.

Additionally, it is submitted that there is no evidence on record to prove that names of political parties that did not participate in the election appeared in the result sheets or that they were credited with votes. Without credible evidence from his witnesses that unlawful votes were recorded for the 1st Respondent, the tabulations in the Appellant’s Brief at pages 21-23 cannot help the Appellant. The Appellant is required to prove the unlawful votes alleged and that the particulars of the inflated figures in the ‘Address of Counsel’ cannot be a substitute for evidence. The Appellant must show that if the inflated figures are taken from the votes credited to his opponent’s case, the result would change in his favour. Izuogu V Udenwa (1999) 6 NWLR (pt. 608) 582 is relied on and Ajadi V Ajibola (Supra) is distinguished in this regard. 1st Respondent submits that even on the convoluted calculations of the Appellant, the 1st Respondent still has the highest number of votes and he referred to page 25 of the Appellant’s Brief which gives the 1st Respondent 3,616 lawful votes to the Appellant’s 417 lawful votes after the deduction of the purported unlawful votes.

Therefore, 1st Respondent submits that he was rightly declared winner of the election having satisfied the requirements of the Electoral Act, 2006 by winning a majority of the lawful votes. He prays the Court to dismiss the Appeal and uphold the Judgment of the Tribunal.

The 2nd Respondent, PDP, very closely toed the line of its candidate at the election, I.e. the 1st Respondent, in submitting that the lower Tribunal properly appraised, considered and evaluated the evidence before it and came to the right decision that the Appellant failed to establish the alleged electoral malpractices, irregularities and non-compliance with the Electoral Act and Guidelines/Manual. By paragraph 12 (1) (4) (5) and (14) of the Petition, the Appellant alleged malpractices in all the 43 Polling Units constituting Afon Constituency. The onus was therefore on the Appellant who alleged corrupt practices, malpractices and non-compliance with the Electoral Act to prove same and that these malpractices and non-compliance substantially affected the outcome of the election. Section 138(1) Evidence Act; Imiere V Salami (1989) 2 NEPLR 131 at 144-166; Jang V Dariye (2003) 15 NWLR (pt. 843) 436 at 459-460 refers.

In election petition proceedings, where allegations of a crime are made, they are required to be proved beyond reasonable doubt. Agballa V Chime (2009) 1 NWLR (pt. 1122) 373 at 430-431; Chime V Onyia (2009) 2 NWLR (pt. 1124) 1 at 62-63 are relied on.

2nd Respondent submits that of the nine witnesses called to establish the alleged corrupt practices, malpractices and non-compliance with the Electoral Act, only three of them were Party agents of the Appellant. All others who claimed to be supervisors did not stay in the Polling Units. In respect of the evidence of the three witnesses who were Agents, it was not a direct and credible account of what happened in their Polling Units because they were fabricated reports and full of contradictions. The PW2, PW5, PW6, PW7 and PW9, who were ether monitoring agents or supervisors, gave hearsay evidence. Their evidence was based on reports from persons who were not called as witnesses. PW9’s evidence was speculative as can be seen from his evidence on oath at page 13 and his evidence under cross examination at page 341 of the record. These pieces of evidence fell short of the standard of proof beyond reasonable doubt required of the Appellant in view of the presumption of correctness of the result of an election as declared by the electoral authority. Reliance is placed on Pambegua V Kargi (2005) 6 NWLR (Pt. 553) 344 at 347; Ajadi V Ajibola (Supra); Hashidu V Goje (2003) 15 NWLR (pt. 843) 352 at 386; Adun V Osunade (2003) 16 NWLR (Pt. 847) 643 at 666.

2nd Respondent contends that, on the other side of the divide, the evidence of RW1 to RW10 refutes all the alleged corrupt practices, malpractices and non-compliance with the Electoral Act.

On the issue of the non-signing of the Exhibits PE.1A, 1E, 1F, 1G AND 1H, 2nd Respondent refers to the evidence of the RW9 and RW10 at pages 376-382 of the record who were present at the Collation Centre and conducted the collation. They testified that no agent was prevented from entering the Centre. The Appellant did not call any of his collating agents at the collation centers to establish the facts alleged in paragraphs 12, (6, 8, 11 and 14) of the Petition, that collating agents were prevented from taking part in the collation of results at the collation centers and signing the collated results. It is therefore submitted that the Appellant failed to lead credible evidence in proof of the said paragraphs of the Petition and his claim on the issue ought to fail. 2nd Respondent argues that by Section 46 of Electoral Act, the only agent recognized by the Act is the ‘Polling Agent’. It is further submitted that in an election petition, the burden lies on the party who asserts to adduce credible evidence in proof of his assertion; he cannot rely on the weakness of the Respondents’ defence. Agballa V Chime (Supra) at 462 is relied on.

2nd Respondent urged the Court to discountenance Tables 1 and 2 at pages 17 and 18 of the Appellant’s Brief as the Tables are not properly designed and the issue of over-voting is not pleaded in the Petition. In addition the number of voters at the Polling Units as set out in the Tables was not pleaded. It asked that Tables 3, 4, 5, 6 and 7 be equally discountenanced because there is no law prohibiting the Presiding Officer from recording votes cast by the electorate to a political party where such a party did not participate in the election. Therefore, this cannot be evidence of an irregularity. In addition, this issue was not pleaded in the Petition and therefore goes to no issue. It is submitted that no irregularity was proved to warrant calling on the Respondents to explain any irregularity or non-compliance. The Appellant failed to rebut the presumption of correctness of the election results and the case of the Appellant ought to fail and be dismissed.

Finally, the 3rd to 5th Respondents, in respect of this issue which, in their view, deals with the evaluation of evidence by the Tribunal, it is submitted that the totality of the Appellant’s case was considered and evaluated. The allegations in the Petition were criminal in nature and the Tribunal held that they must be proved beyond reasonable doubt. These allegations were over-voting, ballot stuffing, illegal thumb printing, malpractices and inducement. The Appellant failed to meet the standard of proof. The Tribunal considered the issue of non-compliance and held that the Appellant failed to show the effect it had on the result of the election. Buhari V Obasanjo (2004) 2 NWLR (pt. 182) 90 at 133 is relied on. Thus, the Tribunal was left with no option than to hold that the election was regularly held and that the result was not affected. 3rd to 5th Respondents also submit that all the witnesses of the Appellant gave hearsay evidence contrary to Section 77 of the Evidence Act. These Respondents urged the Court to dismiss the Appeal as the Appellant failed to prove the allegations in the Petition beyond reasonable doubt.

Findings

Learned Counsel for the Appellant has submitted that the Tribunal was in error for failing to ascribe due probative value to the evidence of the Appellant and his witnesses on the ground that their evidence was hearsay. He contends that all the witnesses, except the PW10 who was the Petitioner himself, gave direct evidence of what they experienced in the course of the election. However, a close examination of the statements on oath of the witnesses in conjunction with their oral evidence before the Tribunal exposes the deficiency in this submission. Indeed, as found by the lower Tribunal, only three out of a total of ten witnesses who testified in proof of the Petition,

were polling agents. They are PW4- Bakare Akawo Atunde, PW6- Saka Counselor and PW8 – Waheed Omo-Owo. The six other Petitioner’s Witnesses, aside the Petitioner himself, were either supervisors or monitoring agents who admitted receiving reports from the agents who were the points-men on the field. The Petitioner’s evidence itself was more of a summary of the allegations as relayed to him by his agents, supervisors and monitors of the election. It is, in my view, manifest from the record that a substantial proportion of the witnesses called to give evidence on the allegations of irregularities, malpractices and non-compliance gave hearsay evidence. Obviously, the Appellant, to succeed, ought to have led direct evidence and not hearsay evidence. It is of course settled law that hearsay evidence is not admissible to prove a fact or a matter. See Buhari V Obasanjo (2006) 2 EPR 295 at 469; Management Enterprises Ltd V Otusanya (1987) 18 NSCC(Pt. 65) 577. Evidence of the nature given by these witnesses thus fell far short of the nature of evidence acceptable in court in proof of the character of allegations made. The evidence envisaged should come directly from the officers who were on the field where polling took place and votes were counted or collated. The best evidence that could be given by the supervisors and monitors who testified are reports from these polling agents on the field. Of the at least 43 polling agents who manned 43 polling units that make up Afon Constituency, only 3 were called to testify. The other 40 or a substantial number thereof could have been called but were not called as witnesses. Such evidence is therefore clearly inadmissible as it is hearsay. See Omoboriowo V Ajasin (1984) 1 SCNLR 108; Hashidu V Goje (2003) 15 NWLR (Pt. 843) 352 at 386. Hear Akintan, JSC, in the latter case at page 386 of the report:

“The main contention in the appeal is whether the Appellant led credible evidence at the trial to warrant turning around the results of the election declared in favour of the p1 Respondent by INEC. But in their efforts to prove this, they relied principally on the evidence led by PW1 and PW2, their two principal witnesses. They overlooked the point that these two witnesses were not on the field where the results being challenged were counted and entered on the Forms brought to the PW1 and later passed on to the PW2. The evidence relied on by PW1 and 2 are therefore what they were told by witnesses (their agents) who were not called to give evidence. The correct evidence in this respect ought to come from the polling agents who received the Form from the INEC polling officials and in whose presence the INEC officials prepared and signed the Forms on which the disputed figures were written. ”

The lower Tribunal also, rightly in my view, faulted the evidence given by the three witnesses, who can be said to have been on the field, on other grounds since their allegations bordered on the criminal.

It has also been canvassed by learned Counsel for the Appellant that the Tribunal was wrong to have placed reliance on the evidence of RW9 and RW10 to explain away the non-signing of Exhibits PE1A, 1B, 1E, 1F, 1G and 1H by party agents other than the PDP and one other party, because the evidence is at variance with the pleadings of the Respondents and also contradicts the evidence of the 1st Respondent as RW8 at page 373 lines 9-14. Instead, he has argued that the evidence of non-signing of those Exhibits accords with the evidence of the Appellant and his witnesses that the agents of the Appellant were driven away by the combined forces of thugs of the 2nd Respondent and security agents. Concerning this issue, the Appellant pleaded in paragraph 12 of the Petition that agents of the Petitioner and those of other political parties other than the PDP were prevented from signing the election forms due to violent activities and sundry malpractices by agents of the 1st Respondent. On the other hand, the Respondents, in their various replies to the Petition, pleaded that when the results were collated and PDP was found to be leading, the agents of the other parties were disappointed and so refused to sign the election forms and collect copies thereof.

Nobody was prevented or excluded from signing the election forms. The evidence of RW9 and RW10, both in their statements on oath at pages 196-197 and 206-207 respectively of the record and their examination in court at pages 376-382 of the record completely bears out their pleadings on this. I can detect no contradiction. Instead, the Appellant in sub- paragraphs (6) and (8) of paragraph 12 of his Petition alleged that his agents were prevented from monitoring the counting and collation of the results and also prevented from signing the election forms, Exhibits PE1A- 1H, due to violent activities and sundry malpractices carried out by agents of the 1st Respondent in collusion with INEC officials and security agents. Who was responsible for these acts? Certainly, the pleadings never attributed these acts of violence and malpractices directly to the 1st Respondent. Since, therefore, most of these allegations questioning the propriety of the elections verged on criminal acts, on the authority of Buhari V Obasanjo (Supra), they must be proved “beyond all reasonable doubt”. What does that expression really mean? I agree with the Appellant that proof beyond reasonable doubt does not mean beyond a shadow of a doubt. However, in the timeless words of the highly cerebral Jurist, Pats Acholonu, JSC, in the Buhari case at page 538 of the report:

”It is proof that precludes every reasonable hypothesis except that which it tends to support and verily it is a proof that is consistent with the guilt of the accused person or against whom the allegation has been made. Therefore, it can be said that for evidence to attain the height which could bring about a conviction it must exclude beyond reasonable doubt every other hypothesis or conjecture or proposition or presumption except that of the guilt of the accused. If the evidence is wobbly, alternative or vague or is compatible with both innocence and guilt, then it cannot be described as being beyond all reasonable doubt. ”

In the instant case, who could possibly be brought forward to face criminal prosecution for the alleged acts of violence? Is it the 1st Respondent, whom it has not been proved, knew anything about what happened at the collation centre, or the perpetrators who remain largely unknown having not been named by the Appellant and his coterie of witnesses? There is a total dearth of both pleadings and evidence in this regard. The Appellant was required to prove these allegations beyond reasonable doubt, being allegations of a criminal nature. Consequently, having carefully gone through the gamut of the Appellant’s submissions on this, I find myself quite unable to fault the Tribunal’s findings thereon.

In addition, where allegations of violence are made in an election and these acts cannot directly or indirectly be linked to a candidate at the election, the candidate cannot be held responsible for those acts. It is only where the evidence in court directly connects the candidate with the nefarious acts of violence and corruption that the election of the candidate will be nullified. Any other person found guilty of such an act, apart from the candidate, should face the penalty imposed by Section 138 of the Electoral Act, 2006 as there can be no vicarious liability for the criminal acts of another.

It is additionally submitted that the Appellant proved certain un-specified non-criminal allegations of non-compliance, irregularities and malpractices by the evidence of the Appellant’s witnesses and the irregularities and non-compliance disclosed by the Forms EC8A- Exhibits PE.1A, 1B, 1E, 1F, 1G and 1H, and PEA (the ballot paper used in the election). The Appellant in his Brief made no effort to identify these “non-criminal allegations of non-compliance, irregularities and malpractices” which he alludes to and which he alleges were proved. Instead he leaves it at the level of such a blanket and vague assertion that is difficult to ascertain, since the evidence of this proof allegedly offered is not readily apparent on the face of the record. This was the same puzzle faced by the Tribunal, no wonder it held thus at pages403-404 of the record:

”In the final address of the Petitioner’s counsel, he contended that the Petitioner’s allegations in the Petition consist of both non-compliance and criminal allegations. He however did not highlight the alleged non-compliance that are not criminal in nature. Parties are bound by their pleadings, and no party to a proceeding will be allowed to give evidence of facts he has not pleaded… The case of the Petitioner as couched in paragraph 12 and anchored by the particulars in paragraph 12(1) – (14) is clearly based on and/or covered by the provisions of Sections 124 to 139 of the Electoral Act. They are allegations bordering on commission of Electoral offences which the Petitioner said culminated into the election not being free and fair. As we said earlier, the Petitioner’s counsel did not point out the said allegations of non-compliance that is not criminal in nature. We do not find in the testimonies of witnesses called by the Petitioner evidence of such non-compliance that are not criminal in nature.”

Be that as it may, I have gone on to examine the Appellant’s pleadings in a bid to do Justice to this issue. The case of the Appellant as set out in paragraph 12 of his Petition alleges variously that: the election was characterized by violence in that party agents were beaten and/or arrested and detained – paragraph 12(1) & (2);

(i) thugs were used to disrupt the election and thereafter ballot papers were thumbprinted and stuffed into ballot boxes – paragraph 12(3);

(ii) hoodlums suspected to be agents of the 2nd Respondent thumb-printed ballot papers- paragraph 12(4);

(iii) manipulation, rigging and multiple voting – paragraph 12(5);

(iv) violent activities prevented Petitioner and other parties from monitoring the counting and collation of results – paragraph 12(6);

(v) alteration and inflation of votes – paragraph 12(7);

(vi) agents prevented from signing election forms and obtaining copies – paragraphs 12(8) & (12);

(vii) Presiding Officer at Budo Agun caught taking away the ballot box – paragraph 12(9);

(viii) massive thumb-printing of ballot papers at various police stations after election – paragraph 12(10);

(ix) violent activities, sundry malpractices and collusion prevented Petitioner from monitoring, counting and collation of results -paragraph 12(11);

(x) 1st Respondent’s agents distributed money to officials and agents of 3rd Respondent to pave way for rigging – paragraph 12(13);

(xi) election generally characterized by acts of rigging such as usage of fake ballot papers, fake rubber stamp, tinkering with voters’ registers, over-voting, manipulation of election result and joggling and inflation of figures – paragraph 12(14).

All these allegations are, without a doubt, offences contrary to and punishable under Sections 124 – 139 of the Electoral Act for which strict sanctions have been variously prescribed. The Appellant is therefore obliged to have proved them beyond all reasonable doubt. As aforesaid, most of the evidence adduced was hearsay and therefore inadmissible, and where documents were tendered, there was no evidence to tie them to the acts of the 1st Respondent such as would qualify them to be used to nullify the election. It bears repeating that irregularities at an election which are neither the act of the candidate nor linked to him cannot affect his election. Therefore, an elected candidate cannot have his election nullified on the ground of corrupt practices or any other irregularity committed in the process of the election unless it can be proved that the candidate expressly authorized the illegality. See Buhari V Obasanjo (Supra) at 474; Obasanjo V Buhari (2003) 17 NWLR (Pt. 850) 510 at 578; Agomo V Iroakeji (1998) 19 NWLR (Pt. 568) 173; Oyegun V Igbinidion (Supra) at 759-760.

The Appellant offered no scintilla of evidence to connect the 1st Respondent with these acts complained of. Thus, the quality of evidence presented to the Tribunal fell far short of the standard of proof required in such circumstances, which is proof beyond reasonable doubt. There is therefore no justification for this Court to disturb the findings of fact of the Tribunal in this regard.

The Appellant in his address, as aforementioned, also tried to paint a picture of an election that was characterized by irregularities, malpractices and non-compliance with the Electoral Act. For instance, in paragraph 12(9) of the Petition he alleges that all the officers employed by the 3rd Respondent were relations, wards and card carrying members of the 2nd Respondent and they were used to facilitate electoral malpractices.

Also in paragraph 12(5) it is alleged that accreditation of voters, ticking of voters’ registers, marking or punching of voters’ cards, preparation of ballot papers, etc, were jettisoned and multiple voting was the order of the day. One would have expected that the Appellant would have adduced proof of the allegation in paragraph 12(9) where a Presiding Officer and other electoral officers are alleged to be card-carrying members of the PDP, by tendering the membership cards/register of the political party in question or other such cogent and compelling evidence to link them to the electoral officers concerned. This however was not done. It is also instructive that the Appellant, by paragraphs 12(7) and (14) of the Petition, pleaded “inflation of votes” and “overvoting”.

However, apart from tendering the “Summary of results from polling Stations” Exhibits SAEPT/7/PE1A- 1H, no further evidence was adduced in proof of these. There was no evidence led in respect of votes recorded in each of the polling Units which would establish that the votes cast were in excess of the number of registered voters in the Polling Units. It must be said that the duty of demonstrating and establishing allegations of inflation of votes and/or over-voting before the trial Tribunal was squarely the responsibility of the Appellant. Failure to adduce evidence in this regard was fatal to their allegation of over-voting. In order to prove over-voting, a party is required to place before the Tribunal the Register of registered voters. This is to show that the votes cast at the election exceeded the number of registered voters. The Appellants, having failed to take the appropriate steps (in respect of certification of public documents) to ensure the production of the Voters’ Registers before the Tribunal, they could not be said to have proved their allegations. Malpractices in an election which include over-voting, rigging, etc, are electoral offences and so the standard of proof is beyond reasonable doubt. Where however such are proved, the election would be rendered void.

Also, where the Petitioner makes non-compliance with the provisions of the Electoral Act as another underpinning of his complaint, (as in the instant case), he is fixed with the heavy burden to prove before the Tribunal by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election. See Boni Haruna V Modibbo (2006) 2 EPR664 at 710; Seriki V Ari (1999) 3 NWLR (Pt. 595) 469; Ihute V INEC (1999) 4 NWLR (Pt. 599) 360. The position of the law is that for an allegation of non-compliance with the electoral provisions to sustain an election petition, the onus lies on the Petitioner to first establish the existence of the non-compliance and secondly, to show that it did or could have affected the result of the election. It is also beyond argument that a candidate in an election who alleges in his petition a particular non-compliance must satisfy the court that the non-compliance is not only substantial but that it affects substantially the result of the election. See Section 146(1) of the Electoral Act; Nnachi V Ibom (2004) 1 EPR 786 at 791. Section 146(1) of the Electoral Act provides thus:

An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the election.

The main objective of this provision is to ensure that not every minor noncompliance or minor breaches of the provisions of the Act should vitiate an election. An Election Tribunal is to decide from the evidence tendered before it in each case whether an alleged non-compliance is substantial enough to warrant nullification of the election.

See Buhari V Obasanjo (Supra) at 550.

Thus, the general rule is that the onus is on the Appellant to prove there were such malpractices and non-compliance which prevented him from winning the election.

Instead of discharging this onus, the Petitioner’s case before the Tribunal is conspicuous by the absence of evidence, either documentary or oral, to establish these allegations. It is not enough for the Appellant to simply tender documents and dump them on the Tribunal without more, expecting the Tribunal to sort them out, and scrutinize and evaluate same. The Appellant had the additional burden of specifically relating or linking each of the documents to specific parts of their case. The court cannot be saddled with the partisan responsibility of tying each of such bundle of documentary evidence to specific aspects of the Appellant’s case when they have not done so themselves. See Iniama V Akpabio (2008) 17 NWLR (Pt. 1116) 225. It cannot be expected to unravel same in the secret recesses of its chambers, and thereafter tie the documents to the evidence tendered. This is a duty which must be performed in open court by the Appellant and his witnesses who should demonstrably link the documents to their evidence. The Appellant made no pretence at doing this.

Therefore, whatever documents were tendered ostensibly in proof of any such allegations amounted to naught. In Terab V Lawan (1992) 3 NWLR (pt. 231) 569, Aikawa, JCA, at page 590 of the report held thus:

“I agree that the correct view of the law is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is tendered. The court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspect of the case for a party when that party has not himself done so. The foundation of the principle is that it is an infraction of fair hearing for the court to do in the recess of its chambers what a party has not himself done in advancement of his case in the open court. ”

On the presumption which the Appellant has asked this Court to draw that, in the absence of any evidence to the contrary adduced by the Respondents, the agents of the Appellant were prevented from signing the result sheets at the collation centre, it is important to remember that the law in respect of election petitions places the burden of proof squarely on the Petitioner who asserts the affirmative on the issue and who would lose if no evidence at all were adduced on either side. Also, the standard of proof in general, except for allegations that are criminal in nature, is on a balance of probabilities. From the pleadings contained in the Petition, it is the duty of the Petitioner to prove by positive evidence that his agents were prevented from signing the results by the 1st Respondent or by agents acting on his express authority. It is trite law that a Petitioner/Plaintiff must succeed on the preponderance of evidence led and on the strength of his own case. He cannot rely on the weakness of the defence, unless he finds in the evidence of the defence facts which strengthen his case. From the facts of this case, it is my view that the Tribunal did a commendable job in evaluating the legally acceptable evidence before it in coming to the decision it did.

Additionally, the position of the law is that where in an election petition the allegation is that election malpractices or corrupt practices were committed, the party alleging same must show that the alleged malpractices or corrupt practices were committed in favour of the person against whom they were alleged, with his knowledge or consent by a person acting under his general or special authority with respect to the election. See Adediji V Kolawole (2006) 2 EPR70. Irregularities at an election, which are neither the act of a candidate or linked to him, cannot affect his election. Therefore, an elected candidate cannot have his election nullified on the ground of corrupt practices or any other irregularities committed in the process of the election unless it can be proved that the candidate expressly authorized the illegality. See Buhari V Obasanjo (supra).

The final issue that needs to be addressed is the matter of the “Tables” designed by the Appellant’s Counsel and used in the Appellant’s Brief of Argument presumably to prove over-voting, disparity between votes cast and un-used ballot papers vis a vis ballot papers issued to the polling stations, results not signed by agents, results with non-participating parties, and results with names more or less than the eleven political parties that participated in the election. The Appellant submits that all the votes contained in the results shown in these seven Tables are unlawful votes which ought to be nullified. However, these “Tables” were neither pleaded, nor listed as required by the Practice Directions nor tendered before the Tribunal. Most of the figures fed into the Tables were extracted from documents which were not before the Tribunal, documents such as the results of polls at the Polling Units, the number of ballot papers issued to each Polling Unit, the number of unused ballot papers from each Polling Unit, etc. It is thus evident that neither the Respondents nor the Tribunal were afforded the opportunity of access to some of the information contained therein since they were either not even pleaded ab initio or tendered in evidence. The Appellant is therefore not allowed to spring surprises on their opponents by sneaking in evidence at the address stage of proceedings. Such evidence should have been made available to the Respondents before trial to accord them an opportunity to be heard on the many new allegations contained therein. I agree with the Respondent that no facts at all were pleaded in the Petition to support the information entered into the Tables, for instance, on the issue of over-voting and the issue of the names of political Parties which did not participate in the election appearing in some results. There is also no credible evidence before the Tribunal to substantiate any of these conclusions drawn by the Appellant in the recesses of Counsel’s chambers upon which he based the Tables. By drawing up these Tables or Charts and filling them up with contents on his own, the Appellant is surreptitiously seeking to offer fresh evidence on facts not before the Tribunal, before this Court. This, of course, he cannot do without duly seeking the leave of Court after properly placing the Respondents on notice. Thus, these documents now latterly introduced via the Appellant’s Brief of Argument lack evidential value. The Appellant cannot seek to prove through his Brief of Argument what he, as Petitioner, failed to establish through evidence at the Tribunal. See Awuse V Odili (2005) 16 NWLR (pt. 952) 416. I must therefore refrain from interfering with the Tribunal’s findings that the Appellant failed to prove the alleged electoral malpractices, irregularities and noncompliance with the Electoral Act and Guidelines/Manual based on these new Tables, as same were indeed not proved.

It is my firm but humble view that, from the transmitted records, the decision of the Tribunal was completely justified having regard to the quality and quantity of the evidence placed before it by the Appellant. The law is settled that an appellate court should not substitute its views of the evidence for that of the trial court which saw and heard the witnesses. It is only where a trial court failed to properly evaluate the evidence before it as a result of which the decision is perverse that an appellate court has a duty to embark on evaluation as if it were the trial court. Such a failure must be clear from the printed record before an appellate court will embark on such an exercise.

I have no doubt in holding that the evidence presented before the Tribunal in this case was adequately evaluated. As such, a situation warranting this court to assume the power to evaluate does not arise. Consequently, I answer issue three also against the Appellant.

In the result, based on all the above findings, I find the Appeal entirely without merit. It fails and I hereby dismiss same. Accordingly, I affirm the Judgment of the Tribunal dismissing the Petition for lacking in merit. I award N30, 000.00 costs to each of the Respondents against the Appellant.

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Other Citations: (2009)LCN/3327(CA)