Mr. Jonny Lar Salbie & Anor V. Independent National Electoral Commission & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the judgment of the Governorship Legislative Houses Election Petition Tribunal sitting in Port Harcourt, Rivers State that dismissed the petition of the Petitioner, challenging the return of the 4th Respondent as the winner of the election to the Rivers State House of Assembly for Gokana Local Government Area/Constituency held on the 14th of April, 2007.
The Appellants were the Petitioners while the present Respondents were the Respondents in the said Tribunal. The judgment appealed against was delivered on the 9th July, 2008.
The facts of the case that gave rise to this appeal are that: The 1st Respondent and the 4th Respondent were candidates for the 14th day of April, 2007 elections conducted for all the State Houses of Assembly in Nigeria. One of the constituencies for which this election was held was Gokana Local Government Area Constituency in Rivers State.
The 1st Appellant and the 4th Respondent were candidates for that election. They were sponsored by the Democratic Peoples Party and the Peoples Democratic Party respectively. The 1st to the 3rd Respondents were responsible for the conduct of the said election.
At the end of the election, the 1st and 3rd Respondents returned the 4th Respondent as the winner of the election with 83,650 votes as against the 1st Petitioner who polled 1,149 votes. The Appellants were dissatisfied with the return and challenged the election vide an Election Petition filed on 14/05/07.
The grounds upon which the petition was predicated are:
“1. That the election was invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act.
- That the Appellant herein was not duly elected by a majority of the lawful votes cast at the election.”
The Appellants sought in the petition a nullification of the election and the conduct of a fresh election for the constituency. The Appellants’ case as shown in their petition are:
“1. There was no valid voting/election in the units of the constituency.
- Electoral materials were not available and/or used in the conduct of the election at the Polling Units of Gokana Local Government Area.
- There was multiple thump-printing of the ballot papers by the same set of persons.
- There was hijacking and diversion of electoral materials.
- The conduct of the election was not in substantial compliance with’ the provisions or the Electoral Act, 2006.”
In response to the above claims, the 1st – 3rd Respondents stated in their reply as follows:
“1. All the electoral materials were distributed and used-in the conduct of the said election.
- Voting took place in all the units and election was conducted in compliance with the Electoral Act in all the Wards.”
The 4th Respondent also filed his reply out of time with the leave of the Tribunal wherein he stated as follows;
“1. All the electoral materials were distributed and used in the conduct of the election.
- Voting tool, place in all the Units and election was conducted in compliance with the Electoral Act in all the Wards.
- There was no multiple thump-printing of the ballot papers, no irregularities, no hijacking or diversions of material etc.
- Whether the election was conducted in substantial compliance with the relevant laws.”
The petition went into full trial. In line with the provision of Section 135 of the Evidence Act, which places the burden of proof on who asserts, the 1st Petitioner testified and called another witness who testified as PW2. The 1st to the 3rd Respondents called a witness who testified for the defence. The 4th Respondent called two witnesses in addition to himself. Thereafter, learned Counsel for all the parties in line with the Practice Directions made written submissions.
At the end of the trial, as can be seen from the judgment of the Tribunal, it (lower Tribunal) held that the complaint on corrupt practices which are criminal in nature were not proved having regard to the standard of proof required by law. However; with respect of to the complaint of non-compliance, the Tribunal held that the Petitioners did not discharge the burden of producing the voters’ register and went further to issues of dereliction of duty.
The Tribunal on page 22 of its judgment held thus:
“On the whole, we hereby hold that the Petitioner has failed to prove the allegations contained in his petition and we hereby dismiss the petition in its entirety.”
Dissatisfied with the judgment of the lower Tribunal, the Appellants, on the 29th day of July, 2008, filed a Notice of Appeal containing four grounds. Devoid of their particulars, the said grounds are hereunder reproduced.
GROUNDS OF APPEAL
GROUND 1:
The learned trial Judges of the Governorship/Legislative Houses Election Petition Tribunal sitting in Port Harcourt, Rivers State erred in law when they held “The evidence of RW4′ who said he saw the 1st Petitioner on whom the onus and responsibility lies as required by the case of Owoyomi v. Egari did not plead the voters register, nor did they list the register as one of the document they are relying on at the hearing of the petition nor did they subpoena any official of the 1st Respondent
to produce the said document to ascertain if voting took place.”
GROUND 2:
The learned trial Judges of the Governorship/Legislative Houses Election Petition Tribunal sitting in Port Harcourt, Rivers State erred in law when they held “It will therefore, be wrong, as urged on us to do, to sit in the confines of our office to start comparison of handwriting … and to draw our conclusion. ”
GROUND 3:
The learned trial .Judges of the Governorship/Legislative Houses Election petition Tribunal sitting in Port Harcourt, Rivers State misdirected themselves and occasioned a miscarriage of justice as it did not properly evaluate the evidence led before coming to the conclusion that the electron was in substantial compliance with the Electoral Act 2006.
GROUND 4:
The judgment of the lower Tribunal was against the weight of evidence.”
The Appellants, from the said four grounds of appeal, distilled two issues for determination to wit:
“ISSUE (1) ONE:
Whether lower Tribunal properly evaluated the evidence before it, having regard to the state of the pleadings, onus and standard of proof on the parties before arriving at the judgment’?
ISSUE (2) TWO:
Whether the election was in substantial compliance with the provisions of the Electoral Act, 2006.”
For their part, the 1st to the 3rd Respondents did not formulate issues for determination but adopted the two issues distilled by the Appellants as their own issues calling for determination in this appeal. The 4th Respondent formulated two issues for determination as follows:
“(a) Whether the lower Tribunal properly evaluated the evidence before it, having regard to the state of the pleadings, onus and standard of proof on the parties before arriving at its judgment.
(b) Whether the election was in substantial compliance with the provisions of the Electoral Act, 2006.
On the 25th day of May, 2009, when the appeal came before us for hearing, Appellants’ Counsel, though aware that the appeal was for hearing that day, he did not appear in Court to adopt his briefs (Appellants’ brief and Reply Brief). At the instance of the Counsel for the 1st to 3rd Respondents, we invoked the provisions of Order 17 Rule 9(4) of the Rules of this Court, 2007 and deemed the two briefs to have duly adopted and argued.
Learned Counsel for the 1st to 3rd Respondent, Mr. Adewale Atake adopted the brief of the Respondents (1st – 3rd) which is dated and filed on 17th day of November, 2008 and deemed filed by the Order of the Court granted on 2nd day of March, 2009. Learned Counsel urged us to dismiss the appeal for lacking in merit.
For his part, learned Counsel for the 4th Respondent, Mr. J.T. Kpakol adopted the 4th Respondent’s brief dated 30th October, 2008 and filed the same date. Learned counsel urged us to dismiss the appeal for lack of merit.
In a brief of argument settled by Joseph Eneh (Esq.) learned Counsel after reviewing the pleadings and the evidence adduced by both sides, submitted that based on the testimonies of the Petitioners’ witnesses which he deemed as unchallenged the followings ought to have been taken as proved by the lower Tribunal, namely:
“(i) Electoral materials which of course include the voters’ register did not get to the polling units.
(ii) There was no accreditation and in the absence of same,
(iii) Then there was no voting in the eye of the law. He referred us to Section 50(2) of the Electoral Act, 2006.
(iv) Election did not take place.
(v) Where there was no voting, then all votes cast at such place are invalid. Thus the votes for the 4th Respondents (sic) were invalid in law there being no accreditation.
(vi) Where election did not take place, it is noncompliance to produce a result for such a place.
Learned Counsel contended that if the above evidence is unchallenged, it is also sufficient to support a finding that the election was not in substantial compliance. Learned further contended that it is now trite law that evidence which is unchallenged is sufficient to prove an issue to which it relates.
Learned Counsel after analyzing the evidence adduced by the Respondents submitted that the Appellants’ allegations that there was no voting that the 4th Respondents did not score a majority of valid votes and that the 1st Respondent did not properly take charge of the distribution of voting materials valid votes and that the 1st Respondent did not properly take charge of the distribution of voting materials to the polling units were all civil allegations which could be severable from the other allegation of hijack and multiple thumb-printing of ballot papers. Learned Counsel opined that the doctrine of severance of pleadings is applicable to the cake under consideration.
It is the contention of the learned Counsel that the civil allegations can be severed from the criminal allegations and that the Plaintiff/Petitioner would then be at liberty to prove his case within the balance of probabilities because the alleged crime cannot then be said to be a fact in issue. He relied on the case of Kalu v. Uzor (2006) 8 NWLR (Pt. 981) 66 at p. 95.
Learned Counsel submitted that Election cases require liberal or lighter proof which is on balance of probabilities or on preponderance of evidence on the part of the Plaintiff/Petitioner under Section 137 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990. Such a burden unlike the one in criminal cases is not static but shifts from time to time and lies on the party who would fail if no evidence or further evidence is adduced on the issue. Such a burden can be discharged by the evidence of a single witness without need for corroboration.
Learned Counsel went on to submit that the burden that there was no election could be discharged by the evidence of a single witness which the Appellant did and the 1st to 3rd Respondents, learned Counsel canvassed did not challenge the evidence of the Appellant on this aspect of the case. Learned Counsel further submitted that the 1st to the 3rd Respondents having not challenged the Appellants’ evidence on accreditation, the burden to prove that there was accreditation shifted to the 4th Respondent who asserted that he voted on the voting day of the election.
Learned Counsel submitted that failure of the 4th Respondent to prove accreditation who claimed to have used the voters register for the election goes to support the Petitioners evidence that there was no accreditation. For the presumption in law, learned Counsel went on, is that evidence which could be produced but was not produced is that, such evidence if produced would have been against the party with holding it.
Learned Counsel referred to the evidence of RW1 as to how accreditation in an election is conducted and argued that the process outlined by the witness (RW1) was/is not the process of accreditation as required by law. This testimony according to the leaned Counsel supports the position of the Appellant that there was no accreditation rather than contradict it.
It is the contention of the learned Counsel that from the evidence of RW1, it becomes very glaring that the Tribunal was in error. It is difficult to Agree that any person used the voters register when the Electoral Officer himself did not correctly state the procedure of accreditation in his evidence. We were urged to resolve this issue in favour of the Appellants.
On the 2nd issues for determination, learned Counsel adopted his earlier argument that there was no accreditation and that the failure of the 1st Respondent to take the necessary step of accrediting the voters in the election was a fundamental defect that ought to vitiate the return of the 4th Respondent.
Learned Counsel contended that the numbers of the votes involved in this non-compliance are all the votes in the ward, the Electoral Officer described the process flawed. Learned Counsel referred us to the case of Oputeh v. Ishida (1993) 3 NWLR (Pt. 279) where the Court held that even where valid poll was not held in a particular polling unit, the non-compliance would be substantial and would affect the result of the election. Learned Counsel urged us to resolve this issue too in. favour of the Appellants.
In a brief settled by Adewale Atake, learned Counsel began his consideration of the issues at stake in this appeal by tackling what he called preliminary point. Learned Counsel stated as a preliminary point that, none of the two issue formulated for determination in this appeal by the Appellants has any bearing on ground 2 of their grounds of appeal. The law is settled that where no issue is formulated from a ground of appeal, that ground of appeal is deemed abandoned and ought to be struck out. He relied on the case of Adelekan v. Ecu Line NV (2006) 12 NWLR (Pt. 993) at p. 84.
Learned Counsel after referring to the evidence of the witnesses and quoting extensively from the judgment of the lower Tribunal contended that it is settled law that the findings of facts based on the credibility of a witness, evaluation an ascription of probative value to evidence tendered in proceeding are matters, which fall within the exclusive province of the trial Court or Tribunal. Such findings, he went on cannot be interfered with save in extreme cases where it can be shown that they are perverse or that the trial Court or Tribunal drew wrong inference from facts or law which fall within the exclusive province of the trial Court or applied wrong principles of law to such facts, He referred to the cases of Igodo v. Owolu (1999) 5 NWLR (Pt. 601) 70; Njoku v. Osimiri (1999) 5 NWLR (601) 120 and Odali v. Ahmadu (1999) 5 NWLR (Pt, 601) 22.
Learned Counsel submitted that the Appellants, who have the responsibility to show hat the Tribunal’s evaluation of the evidence of the parties before it was perverse or based on wrong principles of law have failed in that regard and as such, their contention on evaluation of evidence should be discountenanced,
On the issue of severance, learned Counsel submitted that it does not and cannot apply to the instant case because firstly, the issue of severance was never raised or canvassed by the Appellants at the Tribunal so that, tribunal would have the opportunity of pronouncing on it. In other words, the argument that the allegation of civil wrongs should be isolated from those of crime is being raised for the first time i, this appeal. That being the case, the leave of this Court ought to have been sought and obtained and failure to obtain such lea renders the issue and any argument in support incompetent and I able to be struck out. He referred us to Adoke v. Akum (2003) 4 NWLR (Pt. 840) 418 and Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416.
Learned Counsel urged us to resolve this issue in favour of the Respondents and to hold that the Tribunal properly evaluated the evidence in accordance with well-established legal principles enunciated in Odoftn v Magaji (1978) NSCC 2275.
On the 2nd issue for determination, learned Counsel adopted their argument on accreditation under issue one above and urged us to resolve the issue in their favour.
In any event, learned Counsel further argued that they have sufficiently demonstrated in their submission under issue 1 above that the augment of the Appellants under issue 1 is bereft of substance and legal validity. That being the case, it must be taken that there is no argument in support of issue 2, in law, where there is no argument in support of an issue formulated by a party that issue including the ground from which it arose, is deemed to have been abandoned. He relied on the case of Shell Pet. Dev. Co. (Nig.) Ltd. v. Tiebo VII (1996) 4 NWLR (Pt.445) 657, 676.
Learned Counsel urged us to deem issue No. 2 as having been abandoned by the Appellants and resolve this in their favour.
In a brief settled by J.T. Kpakol Esq., learned Counsel for the 4th Respondent adopted the two issues formulated for determination by the Appellant as the issues also calling for determination in his brief. Learned Counsel however drew our attention to the fact that the Appellants did not formulate any issue from ground 2 of the grounds of appeal. Learned Counsel contended that an appellate Court deals with only issues and not grounds. That being the case, he urged us to hold that the said ground of appeal from which no issue for determination is formulated is deemed abandoned.
On issue No. 1, learned Counsel began with whether voting took place or not in Gokana Constituency on 14/04/2007. Learned
Counsel contended that in as much as the finding of the trial Court to the effect that elections took place in the Local Government and that the Appellants did not appeal against the specific finding of the lower Tribunal, the law is settled that the finding of a Court which is not challenged Ion appeal is final. He relied on the case of Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 600 at 638 paras F-G. We were urged to discountenance all arguments in the Appellants’ brief which seek to contradict the finding of the lower Tribunal that voting took place.
On whether the lower Tribunal properly evaluated the evidence before it and in accordance with the provisions of the law before giving its judgment, learned Counsel contended that at the close of the pleadings, the parties joined issues on the followings:
“(a) Whether voting took place or not at the polling units in Gokana Local Government Area.
(b) Whether the 1st Respondent properly distributed the electoral materials.
(c) Whether the 4th Respondent was elected by a majority of lawful valid votes cast (See paragraphs 2.1 – 2.6 of the petition and paragraphs 2.9 of the 4th Respondent’s reply, to the petition).”
Learned Counsel further contended that Appellants’ averments in the petition were denied by the 4th Respondent in paragraphs 2 – 9 of his reply. The Appellants, learned Counsel went on had the heavy burden of proving the averments contained in the said paragraph. Learned Counsel after an extensive examination of the evidence adduced by both sides (Appellants and 4th Respondent) submitted that the lower Tribunal had properly evaluated the evidence adduced therein and urged us to resolve this issue in favour of the 4th Respondent.
Now, both Counsel for the Respondents have taken as a preliminary point that the two issues distilled for determination by the Appellants have no bearing on ground 2 of the grounds of appeal and such same ought to have been deemed abandoned. It is now trite that an appellate Court considers only issues and not the grounds of appeal. Consequently, a ground of appeal from which no issue for determination is formulated is deemed abandoned. See Okonkwo v. Okonkwo (2005) 5 NWLR (Pt. 865) 87 at 106 paras C – E, Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378 at 409- 410 paras E – A; Adelekan v. Ecu Line NV (2006) 12 NWLR (Pt. 993) at 84 – 89; Atiyebi & Anor v Gov. of Oyo State & Ors. (1994) 5 NWLR (Opt. 344) 290 at 305. Consistent with the decisions in the authorities cited (supra), the said ground (Ground 2) must be and it is hereby struck out. All arguments if any in this judgment pertaining to the said ground will be discountenanced.
Having finished with the preliminaries, I now proceed to consider the first issue for determination which is whether the Tribunal properly evaluated the evidence before it, having regard to the state of pleadings, onus and standard of proof on the parties before arriving at its judgment.
Learned Counsel for the Appellants submitted quite copiously that in its evaluation of the evidence, the lower Tribunal ought to have in placing the onus of proof proceeded from the point that he who asserts must prove his assertion. He went on to submit that the only onus n the Petitioner was to introduce why he maintained that there was no voting, that the onus was discharged according to the learned Counsel once the Petitioner in his testimony gives evidence of the effect that in the purported election the vital step of accreditation was not done.
It is pertinent to observe at this stage that though the law is settled on the onus of proof that he who asserts rust prove as stated by the learned Counsel, it would amount to putting the law on its head to hold that the onus on the Petitioner would be discharged by merely introducing evidence of non voting in the election whatever that may mean. I am of the firm view that the Appellants who have alleged that voting did not take place in any of the polling units in Gokana in the House of Assembly Election conducted on 14/04/2007 have the burden to prove same. See INEC v. Ray (2004) 14 NWLR (Pt. 892) 92 at 122 – 123 paras F – A. See also Section 135(1), 136 and 137 of the Evidence Act.
The question to be asked is this, can it be said from the evidence adduced by the Appellants that they discharged the burden? To answer this question, recourse had to be made to the evidence adduced by the Appellants in the Court below. A closer look at the case of the Appellants vis-a-vis the evidence adduced in proof of the same would reveal the fact that the Appellants completely failed to prove that voting did not take place during the election in contention. The Appellants could not call even one witness to testify that he wanted to vote but could not because there were no election materials or those who were to conduct the election were not there to do so.
It is to be observed that the Petitioner who testified as PW1 and his witness PW2 never gave evidence that they wanted to vote but could not vote because of lack of materials or that the officers of the 1st Respondent: who were to conduct the election were absent. Though from the evidence of the Appellants, Polling Agents were appointed y them to man all the 219 Polling Stations in the Constituency, none of these Polling Agents of the Appellants was called to testify to how that ejection did not take place in his units.
The Polling Unit Agents of the Appellants needless to say are vital witnesses whose evidence could have proved whether voting took place or not. I am of the considered view that failure of the Appellants to call one of them to give evidence in the lower Tribunal was fatal to their case. See Audu v Guta (2004) 4 NWLR (Pt. 864) 463 at 482 paras D – H, 485 paras A – D and Imahanria v. Nigerian Army (2007) 14 NWLR (Pt. 1053) 76 at 94, paras A – B.
For his part, as can be gathered from the proceedings, the 4th Respondent in paragraph 5 – 9 of his reply averred that voting took place in all the units in the Constituency. To establish this fact, the 4th Respondent called Mr. Sunday Kpalap, who in his deposition said that he was a Polling Agent of his party, the Peoples Democratic Party and that he voted during the election of 14/04/2007. He tendered his party card as Exhibit R40, his letter of appointment as Party Agent Exhibit R41 and his voter’s card as Exhibit R42. RW2 also gave evidence and his voter[s card was tendered as Exhibit R39. 4th Respondent testified as RW4 and his voter’s card was admitted in evidence as R43.
It is also pertinent to note that under cross-examination of RW4, he testified thus:
“I saw the 1st Petitioner on that day while I was at my polling Unit. He voted on that day. The Polling Unit where I voted is not far from the Polling Unit where the 1st Petitioner voted.”
The Appel1ants never challenged the evidence of the 4th Respondent under cross-examination that the 1st Petitioner voted on 14/04/2007. Let me pause and say that the law is settled that where a party does not accept as true a fact but fails to cross-examine a witness, a Court is entitled to treat his failure to cross-examine as an acceptance of the fact that he does not dispute the testimony of the witness. See Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 at 240 paras A-G.
Again the 3rd Respondent gave evidence as RWII that election took place in Gokana Constituency on 14/04/2007. He tendered the Polling Unit results or statements of results from Pol1ing Stations for Ward 1- 17 as Exhibits R1 – R17. The said Exhibits (R1 – R17) are the primary evidence that election took place in the Constituency. The law is now trite that primary evidence of the result of an elections are Forms EC8A, statement of results of poll from Polling Stations. See INEC v. Ray (supra) at 131 paras D – G.
In the light of the foregoing, I am of the considered view and I so hold that the lower Tribunal took the principles stated in Odofin v. Mogaji (1978) NSCC p. 275 in evaluating the evidence when it found as follows:
“In the instant petition, despite the fact that the 1st Petitioner stated in his evidence that he had agents in all the polling units, none of the said agents was called to give evidence about the non-voting or non-holding of electio1n at their polling units. The PW2 who introduced himself as a collation officer of the petitioner in four wards is not a reliable or credible witness as his evidence contradicts that of the 1st petitioner who did not mention his name or refer to him when he stat d the names of his ward agents in those particular yards to which PW2 said he was agent. The PW2, in fact stated that he did not even know where the collation centre of the wards were. The petitioners did not call any voter to show that such voter presented himself for voting but did not sec any official to carry out the function. The 1st petitioner, from his prevarication in his evidence has apparently shown that he could not have been at the 219 polling units at the same time. The evidence of the RW4 who said that he saw the 1st petitioner after the said petitioner voted was not challenged.”
It is appropriate at this juncture to pause and state that the law is now settled beyond peradventure that evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a Court of trial which saw, heard and duly assesses the witnesses. Where a trial Court unquestionably evaluates the evidence and justifiably assesses the facts, as in the instant case, the duty of the Court of Appeal is to find out whether there is evidence on record on which the trial Court could have acted, once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, as in this case, this Court (Appellate) Court cannot interfere. See SPDC v. Okonedo (2008) 9 NWLR (Pt.1091) 85 at 125 – 126 paras. F – B and Agbaje v. Fashola (2008) 6 NWLR (Pt.1082) 90 at 153 paras. B – E.
This issue in the light of all that has been said is resolved in favour of the Respondents and against the Appellants.
Last but not the least issue for determination is issue No. 2 which is whether the election was in substantial compliance with the provisions of the Electoral Act, 2006. Learned Counsel for the Appellants adopted their earlier argument to the effect that there was no accreditation and further submitted that the failure of the 1st Respondent to take the necessary step of accrediting the voters in acted, once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, as in the election was a fundamental defect that ought to vitiate the return of the 4th Respondent.
Learned Counsel contended that all the votes case in this election were involved in the non-compliance as the Electoral Officers wrongly described the process to be followed by the prospective voters. I He relied on the case of Oputeh v. Ishida (1993) 3 NWLR (P.279).
Counsel for the 1st – 3rd Respondents adopted their argument on accreditation under issue I above and we were urged to resolve the issue in their favour. They have sufficiently demonstrated that the argument of the Appellants under issue No. 1 is bereft of substance and legal validity. They submitted that in law where there is no argument in support of an issue formulated by a party that issue including the ground from which it arises is deemed to have been abandoned. See Shell Pet. Dev. Co. (Nig) Ltd. v Tiebo VII (1996) 4 NWLR (Pt. 445) 657 at 679 paras D – E.
Learned Counsel for the 4th Respondent contended that the Appellants having pleaded that the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act are filed with the heavy burden to prove before the lower Tribunal by cogent and compelling evidence that the noncompliance is of such a nature as to effect the result of the election.
They must also show that the non-compliance substantially affected the result of the election to their disadvantage.
The law is now settled that where a Petitioner makes non-compliance with the Electoral Act, the foundation of his complaint, he is fixed with the burden of proving before the Court by cogent and compelling evidence that the non-compliance was substantial ad it affected them substantially. See Buhari v. INEC (2004) 4 NWLR (Pt.1078) 546 at 633 paras C-E and Haruna v. Modibo (2004) 16 NWLR (Pt.900) 484.
The question that readily comes to mind is whether or not the Appellants have established that there was any substantial noncompliance with the provisions of the Electoral Act under reference. A cursory look at the evidence adduced by the Appellants in support of the petition would leave no one in any doubt that the Appellants never led any evidence tllkless of cogent and compelling reasons showing that there was non-compliance with the provisions of the Electoral Act, 2006 and that the noncompliance affected the outcome of the election to their disadvantage. The contradictory evidence of the 1st Appellant and his witness, PW2 on the issue of distribution of electoral materials were rightly rejected by the lower Tribunal. As can be gathered from the judgment of the lower Tribunal, the unreliable and hearsay evidence adduced by the Appellants was also rightly in my view rejected by the lower Tribunal.
Let this point be made that, assuming but without conceding that there was any instance of non-compliance with the provision of the Electoral Act, 2006, by virtue of Section 146(1) of the Act, an election shall not be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. See ANPP v. Usman (2008) 12 NWLR (Pt. 1100) 1 at p. 88 paras D- F and Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) p. 1.
This issue, like the previous one, in the light of the foregoing, is resolved ill favour of the Respondents and against the Appellants.
In sum, with both issues resolved in favour of the Respondents, this appeal fail as same is completely devoid of any merit. The judgment of the lower Tribunal upholding the election of the 4th Respondent as a member representing Gokana Constituency in the Rivers State House of Assembly is hereby affirmed with.N50,000.00 costs to the 4th Respondent.
Other Citations: (2009)LCN/3383(CA)
