Mrs. Charity Fubara & Anor. V. Independent National Electoral Commission & Anor (2009)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal against the decision of the Governorship and Legislative Houses Election Petitions Tribunal which dismissed the Petition of the Petitioners challenging the return of the 2nd Respondent.
On 14/4/2007, Election took place throughout Nigeria. In Rivers State 1st Respondent conducted an election to the Rivers State House or Assembly for OGU/BOLO Local Government Area Constituency. The 1st Appellant contested in the said election as the candidate of the Democratic Peoples Party (DPP) (2 Appellant herein); while the 2nd Respondent contested as the candidate of the Peoples Democratic Party (PDP), other 5 candidates that participated in the same election are not parties in this appeal.
At the end of the election, the 2nd Rcspondent was returned by the 1st Respondent as the candidate duly elected. The 1st and 2nd Appellants were aggrieved with the return of the 2nd Respondent and they filed their joint petition in the lower Tribunal on 14/5/2007 to challenge the said return.
To prove their petition, the Appellants called 3 witnesses with the 1st appellant testifying as PW1. The 1st Respondent called only a witness who testified as R.W.1. The 2nd Respondent called 3 witnesses who testified as RW2, RW3 and RW4 respectively. At the conclusion of the hearing both Counsel filed and adopted their respective final written addresses.
The Election Tribunal in its considered judgment delivered on 1/4/2008 unanimously dismissed the petition, finding that the Appellants failed to prove their allegations of corrupt practices, non-compliance with the provisions of the Electoral Act or that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election.
Dissatisfied with the decision of the lower Tribunal the Appellants filed their Notice of ‘Appeal on 25/4/2008 originally containing six grounds of Appeal. However, they found it expedient to file additional seven grounds of appeal upon an application brought to this Court on 1/7/2008. Leave of this Court was also sought to raise and argue fresh issues not taken at the lower Tribunal and to extend time for the Appellants to file their brief of argument. The application was granted on 18/6/2009.
Learned Counsel for the Appellants’ brief of argument and Reply Brief have been filed. In their brief of argument the two issues distilled for the determination of the appeal read as follows:
“1. WHETHER the lower Tribunal properly evaluated the evidence before it, having regard to the state of the pleadings, onus and statement of proof on the parties before arriving at its judgment.
2. WHETHER the conduct of the election was in the substantial compliance with the provisions of the Electoral Act 2006.”
The 1st Respondent’s brief of argument dated 10/3/2009 was filed by his Counsel same date and the preliminary objection which was argued on pp.4 – 15 of the brief, was filed on 10/3/2009. At page 15 paragraph 4.10 the 1st Respondent adopts the two issues formulated by the Appellants in their brief of argument.
The 2nd Respondent brief of argument was dated 5th of March 2009 and filed same date. At page 6 of the 2nd Respondent’s brief, learned Counsel adopts two Issues formulated by the Appellants.
Briefs having been filed and exchanged, we took this appeal on 18/6/2009. Learned Counsel for the respective Parties have identified their briefs of argument without further amplification on the briefs. Learned counsel for the Appellants, C.N. Eke Esq. urged us to dismiss the preliminary objection of the 1st Respondent and to allow the appeal.
For the 1st Respondent, their counsel K. TAMBOU Esq, having identified and adopted the brief of argument, urged us to uphold the preliminary objection or in the alternative, dismiss the appeal.
On behalf of the 2nd Respondent, his Counsel H.Amrurhobo Esq. having identified and adopted the brief has urged the Court to dismiss the appeal.
I shall now first consider the preliminary objection of the 1st Respondent which challenges the compliance of the Notice of Appeal consequently it is prayed that it be discountenanced and/or to strike out the- two issues for determination in the Appellants’ brief. The grounds for the preliminary objection are set out as follows:
1. By virtue of the said Notice of Appeal, the Appellants are purporting to appeal against the decision of the Governorship and Legislature House Election Petition Tribunal’.
2. Such a court as aforesaid is not a creation of any law in force in Nigeria.
3. Honourable Court does not have the jurisdiction to entertain appeals from decisions of such a Tribunal as aforesaid.
4. The aforesaid Notice of Appeal did not state particulars of the case in respect of which the Appellants are purporting to appeal to this Honourable Court such as Suit/Petition Number and parties etc.
5. All the grounds of appeal in the Appellants Notice of Appeal and the amended Notice of Appeal are incompetent as they did not indicate whether the errors complained about were error of law, facts or mixed law and facts.
6. The aforesaid Notice of Appeal is consequently incompetent and cannot even be amended.
7. Appellants’ Issue No.1 is incompetent as the Appellants without the prior leave of the Court raised and argued a new issue in the argument of said issue No.1 namely that the 1st Respondent did not specifically deny the Appellants’ assertion that Forms EC8A(1) were not present or available at the various polling units on the day of the election in question
8. The aforesaid new issue is not covered by any Ground of Appeal.
9. The Appellants’ issue No: 2 is same as Issue No: 1 before the lower Tribunal which the Appellant abandoned,
10. The Appellant cannot therefore without first obtaining the leave of Court argue the said Issue which he abandoned in the lower Tribunal.
11. The issue of over-voting canvassed under Issue No: 2 is at variance with the case of the Appellants before the lower Court as disclosed in the Appellants’ pleading (Petition) as same was never pleaded in the petition.
12. The aforesaid issue of over-voting is not covered by any ground of Appeal.
13. No leave of Court was obtained to argue the aforesaid issue of over-voting under the said issue No. 2.
14. The arguments canvassed in respect of the aforesaid issue of over-voting are therefore incompetent.
15. The entire Issue No. 2 by virtue of the above is also incompetent.
Learned Counsel for the 1st Respondent has argued grounds, 1, 2, 3 and 6 together. The grouse or quarrel of the 1st Respondent here has to do with the Notice of Appeal which is against “Governmenship and Legislature Election Petition Tribunal”, It is argued that no such Tribunal existed as no law in Nigeria created such Tribunal. See S.240 and S,246 of the 1999 Constitution. Reliance was placed on the ease of OKONKWO V. INEC (2004) N.W.L.R. (Pt.854) 242. In his argument in response to this head of objection, Learned Counsel for the Appellant has submitted that the errors complained of by the 1st Respondent are to form and not substance, I observe these are typographical errors which cannot vitiate on appeal. A notice of appeal serves as to notify the Court as well as the parties against whom the appellant’s grievances are ventilated. Once the intent and complaint contained therein are understood an appeal will not be defeated. Sec ADERONMU V. OLOWO (21106) 4 N.W.L.R (Pt.652) 253. With respect to ground 4 of the objection, the complaint is that Notice of Appeal did not state the particulars of the case in respect of which the Appellants are purporting to appeal to this Court, such as Petition/Suit No. and parties. I agree with the learned Counsel for the Appellants that the Notice of Appeal clearly set out the names of the parties, the Petition and Number. Appellants’ complaints are set out with all particulars.
The ground of objection No.5 is that all the grounds on the original and the amended Notice of Appeal are incompetent as they did not indicate whether the errors complained about were errors of law, facts or mixed facts and law. I agree with the learned counsel for the Appellants that the grounds of appeal are not vague. The paramount consideration is whether the Court and the adverse party have adequate information about the complaint of the appellants on the grounds. The court is not bound to accept a ground as an error of law or misdirection simply because the appellant so describe it. It is the essence of the ground that is necessary, see AGBAMU v. ODILI (2004) 3 P.W.L.R (Pt.198) (2004) at 218. See also NUHU V. OGELE (2004) 3 F.W.L.R. (Pt.200) p.444.
In grounds 7 and 8, 1st Respondent’s complaint is that the Appellants have raised and argue new issue in their brief without leave of court. The said new issue is the contention that the 1st Respondent did not specifically deny in its pleading; the averment of appellants that Form EC8A(1) were not present at the polling units. An issue is regarded as fresh if it was not before the lower court and is raised or appearing for the first time at the appellate Court. In the instant appeal the issue of absence of Forms EC8A(1) was live issue before the lower Tribunal and raised in paragraph 2.6 page 2 of the Petition. The Appellant had contended at the lower Tribunal that Forms ‘EC8A(1) were neither present nor used as the polling units.
The main substance of 1st Respondent complaint in grounds 9, 10, 11, 12, 13, 14 and 15 is that issue No.2 of the Appellant’s brief of argument was abandoned at the lower tribunal and cannot be raised now on appeal. It is further contended that Appellants did not challenge the holding of the Tribunal that this issue was abandoned in any grounds of Appeal. With respect see ground 12 of the grounds of appeal, where the appellant challenged the holding of the lower Tribunal.
On the contention of the 1st Respondent that the Appellants raised the issue of over-voting without first seeking leave of Court, I can observe that the appellant’s issue No.2 in the Brief dealt with non-compliance with the conduct of the , election. Over-voting was only referred to as one of the several factors which the tribunal could consider in dealing with issue of non-compliance with the conduct of election.
On the whole, in the light of the foregoing, with due respect to the learned Counsel for the 1st Respondent, I must overrule the objection set out in the 15 grounds reproduced above. Accordingly the objection is discountenanced to pave way for the hearing of the appeal on the merit.
ISSUE NO.1
The grouse of the Appellants under this issue is that the judgment of the lower court did not flow from a proper evaluation of (he evidence before it, and it has therefore come to a wrong conclusion. Relying on paragraphs 2.2 & 2.6 of their Petition, Learned Counsel submitted that the allegations that the election materials did not get to the various polling units in the Ogu/Bolo L.G.A. were substantial and enough to nullify the election. That there was no unequivocal denial of the averment that the result sheets Forms EC8A(1) were not made available at the polling units. It is also alleged that there was no accreditation of voter in the said polling units: Reliance was placed on the cases of INEC V. RAY (2004) 14 N.W.L.R. (Pt.892) p.92 at p.123, 129-131; JOE GOLDAY CO. LTD V. CDBC PLC. (2003) 5 NWLR (Pt.814) p.536 at 598 – OGBODU V. QUALITY FINANCE CO. LTD (2003) 6 NWLR (Pt.815) 147, 163 and U.B.N. PLC V. DAWODU (2003) 3 NWLR (Pt.810) p.287.
It is submitted by the Learned Counsel in the Appellants brief that the Appellant’s having admitted that Forms EC8A(1) were absent at the polling units, this fact require no further proof That the primary evidence of results of the election are Forms EC8A(1), the statement of results of poll from units and that a party who asserts that election took place must show from his pleading and evidence that the forms were available used and formed part of the election process. Cited in reliance of this submission is the case of AMGBARE V. SYLVA (2009) 1 NWLR (Pt.1121 p.1 at pp. 71 – 72; INEC V. RAY (snpra).
It is finally submitted that if the lower Tribunal had properly evaluated the evidence before it, it would have come to the conclusion that election did not hold at Ogu/Bolo polling units. It is urged on this Court to interfere and evaluate the evidence placed before the lower Tribunal since there was no such proper evaluation of evidence before it. Reliance was placed on WOLUCIIEM V.GUDI (1981) 5 SC 291; LAWAL V.UTC (2005)13 NWLR (pt.943)601 at 617-618.
For the 1st Respondent, the Appellants’ argument and submission on this issue is based on a faulty foundation. It is contended by the 1st Respondent that (1NEC) in its Reply to paragraphs 2-2, 2-6, 2-7 of the Petition clearly and unequivocally denied the aforesaid allegations of absence of Forms EC8A (1) in the polling units in their (1st Respondent’s) paragraph 5. It is submitted by the Learned Counsel/or the 1st Respondent that there was a denial coupled with the general traverse in the opening paragraph 1 of the 1st Respondent Reply. That this was effective traverse or denial of the averments or the Appellants. That a general traverse contained in a statement or defence has been recognized as convenient and permissible. Reference was made to two decisions of the Apex Court in UMESIE V. ONUAGULUCHI (1995) 9 NWLR (Pt.421) p.515 at 528; OSAFILE V. ODI (1994) 2 NWLR (Pt.325) p.125 at 137. That there was joinder of issues between the Appellants and the Respondents in respect of the alleged, unavailability and use of the said FORMS EC8A (1) at the polling units. This is further reinforced by the unequivocal denial of the aforesaid allegations by the 2nd Respondent in her Reply before the lower Tribunal. That, the 2nd Respondent apart from denying the aforesaid allegation in paragraph 2 of the Reply went further to aver adequately in paragraph 3 (c and d) in similar terms.
Notwithstanding the foregoing, the learned Counsel, contended that the Tribunal was right when it held that the Appellants ought to have proved their allegations beyond reasonable doubt because the appellants’ allegation in their petition are allegations of commission of Crime defined in section 130 and 136(4) of the Electoral Act and must be proved beyond reasonable doubt. That failure on the part of an electoral official to discharge his statutory duties in respect of an election such as non-delivery of electoral materials, non-accreditation of votes are criminal offence under section 130(1) and (3) of the Electoral Act. Similarly, declaration of false result, by electoral officer, snatching of electoral materials to an unknown destination is criminal offences under sections 130(4) and (5) and 136(4) of the Electoral Act respectively, Reliance was placed on the case of CHIME v. EZEA (2009) 2 NWLR (Pt.125) 263 at 371 CHIME v. ONYIA (2009) 2 NWLR (Pt.1124) at 62.
Learned Counsel has dealt in details, with the findings of the lower Tribunal that the case of the Appellants was full of self contradictions in paragraph 5.13 and 5.16 and concluded that the Tribunal was right. I will return to this in the course of this judgment.
On the question of accreditation of voters it is the contention of the 1st Respondent that Tribunal was right to hold that there was accreditation, voting and entering results into the relevant results and same announced publicly in the presence of law enforcement agencies. That there was no ground of appeal in the Notice of Appeal or the amended version challenging these findings of the lower Tribunal and the effect is such a finding is deemed to be accepted by the Appellants.
Also Appellants contended in paragraphs 4.07, 4.08 and 4.09 that the lower Tribunal erred when it placed on them the onus of tendering documents used in the election, when their ease is that there was no election. The Appellants relied on the cases of AMGBARE V. SYLVA (supra) and INEC v. RAY (supra). 1st Respondent’s Counsel has submitted that the aforesaid contention of the Appellants was misconceived because the lower Tribunal did not in any portion of its judgment place on the Appellants the burden or onus of tendering documents used in the conduct of the election in question. Tribunal statement on page 467 of the Record or Appeal was referred to in support of this contention. The Appellants did not appeal against the finding of the Tribunal disbelieving the assertion of the Appellants that they were not allowed to inspect the documents used for the election. It is contended that the Appellants were obliged to tender the documents including result sheets forms EC8A(1) which they gave the Respondents notice to produce and which they obtained copies pursuant to the order of the lower Tribunal. That they were duly bound to tender the documents if they intended or desired the lower Tribunal to find in their favour that they said election did not take place.
On issue No.1 the learned counsel for the 2nd Respondent has submitted as misconception the contention of the Appellants that they had established the absence of Forms EC8A(1) at various polling units in Ogu/Bolo Local Government Area during the election because the 1st Respondent did not unequivocally deny the allegation in paragraphs 2 and 5 of the 1st Respondent Reply to the petition. The following reasons were proffered for the foregoing contention that of Appellants:
I. That the point raised by the Appellants that the 1st Respondent by its Reply did not deny the Appellants allegation that Forms EC8A(1) were absent at various polling units in Ogu/Bolo Local Government Area is a fresh point or issue being raised for the first time in this appeal since no leave of this court to raise it has been obtained by the Appellants. The point is incompetent and must be discountenanced. FADLALLAH v. NIGERIA AMERICAN MERCHANT BANK LTD. (2007) All NWLR (Pt.385) 530 at 543, cited in reliance.
2. That the Appellants in their written address at the trial tribunal submitted that the 1st Respondent denied the averments in the petition especially concerning the assertion that electoral materials (including result sheets) were not made available or made use of at the election. They cannot therefore approbate and reprobate on the point.
3. That contrary tot eh assertion of the Appellants, the 1st Respondent by paragraphs 2 and 5 of its Reply at page 101 of the Records completely and unequivocally denied the averments contained in paragraphs 2-2 and 2-6 of the petition.
Learned Counsel for the 2nd Respondent also submitted that the contention of the Appellants that it was absurd of the Election Tribunal to have placed on them the burden to produce documents used in the conduct of the election to prove the’ Appellants assertion that election did not take place. The 2nd Respondent again has submitted that this contention of the Appellants is misconceived for the following reasons:
(1) The burden of proving that voting did not take place in the election is on the Appellants who so asserted. The burden can only be shifted to the Respondents if the Appellants have discharged the primary burden; cited in reliance are CHIMA v. EZEA (supra); AYOGU v. NNAMANI (2006) 8 NWLR (Pt.981) 160 at 187 and ONOYON v. EGARI (1999) 5 NWLR (Pt.603) 416 at 425.
(2) That the Appellants themselves in their final written address at the lower Tribunal admitted that the onus is on them to prove that voting did not take place: See page 324 of the Records under paragraph 6.2. That by this admission the Appellants is estopped from canvassing the contrary in this appeal as they cannot approbate and reprobate on this point.
(3) The Appellants have not called one single registered voter from each of the polling booth, in each of the wards in the Local Government Area of Ogu/Bolo to show that he could not vote on the day of election at the polling booths as there were no voting materials: See AYOGU v. NNAMANI (SUPRA) AT P.187.
(4) Alternatively, the Appellants had duty to subpoena 1st Respondent (INEC) to produce the voters Register used for the election to prove that no election took place. See ONOYOM v. EGARI (SUPRA) AT P.425, CHIME v. EZEA (supra) at p.357 that instead the Appellants produce exhibits P.1 which was an alleged complaint made to the Resident Electoral Commission (INEC) River State which is the same as written deposition of 1st Appellant. That the Appellants duly obtained the order of the Tribunal to inspect and make copies of all the documents used by the Appellants in the said election but never tendered any of the documents.
5. That against the foregoing background that the Tribunal made the following findings. That the Appellants, “failed to adduce cogent and reasonable evidence to convince the Tribunal of the allegations averred in the petition…”
Learned Counsel for the 2nd Respondent has submitted that above findings of the Tribunal are amply supported by the pleadings and evidence led before the lower Tribunal enough to discountenance the contentions of the Appellants.
The Appellants further contended at paragraphs 4.10 and 4.11 of their brief to the effect that the findings/conclusions of the Tribunal, that the Respondents testified in line with their pleadings that accreditation and voting took place and publicly announced, was strange, because it was not the 1st Respondent’s case that there was accreditation, voting and entry of result in the prescribed forms at the unit; that the 1st Respondent did not plead the events at the various polling units in its Reply and evidence, The 2nd Respondent submitted that this contention is misconceived. He referred to the findings of the Tribunal at page 468 of the Records, where it found to the contrary. It held that the Respondents in line with their replies consistently denied the petition (Appellate’) allegation. That they have maintained throughout the trial that there was election into Ogu/Bolo Local Government Area House of Assembly Constituency on 14/4/2007.
Furthermore, the 2nd Respondent has submitted that the contention of the Appellants that the findings of the Election Tribunal that the evidence of P.W.2 and P.W.3 were not believable because of material contractions in their testimony is unreasonable, perverse, or based on wrong inferences. 2nd Respondent has contended that this contention at paragraphs 4.13 – 4.15 of the Appellant brief is misconceived in view of the Tribunals’ “finding contained at page 464 of the Records. Learned Counsel for the 2nd Respondents has found justification for the Tribunals finding on this point for the following reasons.
(1) Both PW2 and PW3 who were agents of the 2nd Appellant gave contradictory evidence.
(2) I’W2 and PW3 deposed that on the Election day on 14/4/2007 election materials were distributed to the Ward supervisors and was escorted by a team of Policemen and different party agents.
(3) But under cross-examination at page 408 of the Records PW2 contradicted his evidence in chief and stated that he never escorted any electoral materials from INEC office to Ogu/Bolo on the Election Day.
The last contention of the Appellants under this issue is at paragraphs 4.22 – 4.23 at pages 15 – 16 of the Appellants’ brief of argument. Their complaint in those paragraphs is that the unit/poll results in Exhibits R4(I) – (II) and R.5 which were tendered by the 151 Respondent were wrongly relied upon by the Election Tribunal because the said results were not placed or attached to the Reply of the 1st Respondent and that the 1st Respondent refused to produce them for usc of the Appellants at the trial in spite of notice to that effect. The 2nd Respondent’s counsel has submitted that this contention is misconceived because the Appellants although pleaded the unit results and gave notice to the 1st Respondent to produce the said results, the Appellants never made any attempt to tender any of the documents in the conduct of the election including results. That even the copy of the Declaration of Result in Form EC8E(1) attached to the petition was never tendered by the Appellant.
A critical study of the briefs of the’ respective Counsel for the parties reveals committed industry needed lor a meaningful resolution of the issue raised herein. I have carefully summarized the arguments, contentions and submissions of the respective learned counsel. In this first issue the Appellants have contended that by paragraphs 2.2 and 2.6 of the petition they had established the unavailability of Form EC8A(1) at the various polling units in Ogu/Bolo Local Government Area during the election because the 1st Respondent did not unequivocally deny that allegation in paragraphs 2 and 5 of her Reply to the petition. The 1st and 2nd Respondents (hereafter the “Respondents’) above submitted in their respective briefs of argument that this foregoing contention of the Appellant is grossly misconceived. I share the same view that this argument is faulty because the 1st Respondent in its Reply to the petition clearly and unequivocally denied the allegation of absence of Form EC8A(1) in the polling units on the day of the election. In paragraph 5 of its Reply 1st Respondent inter alia, stated that paragraphs 2.6 and 2.7 of the petition are denied completely. Contrary to their contention the Appellants in their written address at the Tribunal submitted that the 1st Respondent denied the averments in the petition especially concerning the assertion that the electoral materials (including result sheets) were not made available or made use of at the election. It is wrong for the Appellants to approbate and reprobate on this point. Therefore this denial by the 1st Respondent coupled with the general traverse in the opening paragraph 1 of the 1st Respondent’s Reply amount to effective traverse or denial of averments of the Appellants in the ONUAGULUCHI (1995) 9 NWLR (Pt.421) 515 at 528, (B) the Supreme Court per ADIO JSC (of Blessed Memory) stated as follows:
“A general traverse contained in a statement of defence has been recognized as convenient and permissible. It is a traverse and its effect is that it casts on a plaintiff the burden of proving the allegation denial. See Mandilas and Karaberi Ltd. vs. Apena (supra) and Osafile v. Odi (1994) 2 NWLR (Pt.325) 125, 99.
Issues were joined on this point between the Appellants and the Respondents in respect of the alleged unavailability anti use of the said Form EC8A(1) at the polling units, This is further reinforced by the unequivocal denial of the allegations by the 2nd Respondents in paragraph 2 of the Reply before the lower Tribunal. This apart 2nd Respondent went further to aver in paragraph 3(c, and (d) of the Reply as follows:
“3(c) That the scores of the various candidates as shown in paragraph 3(b) above, were the product of valid and lawful counted voles at the polling booths, and collation of such counted votes at the ward and Local Government levels. Besides, each presiding officer at the said election was given the approved and prescribed forms specifically designed and customized for recording final scores of votes cast for each candidate at the polls.”
(d) That at the close of the polls and particularly after the votes were counted and entered into the prescribed forms which were also duly stamped and signed by the presiding officers, the Respondent were publicly declared the winner of the April 14, 2007 House of Assembly Ogu/Bolo Constituency Election aforesaid.”
In the face of such overwhelming denial of the aforesaid allegation, the lower Tribunal could not have held that the issue of the alleged non availability of the said Form EC8A(1) at the polling units was admitted before the trial Tribunal and that the Appellants were thus relieved of the burden of adducing evidence in proof of same.
Notwithstanding the foregoing the Appellants in paragraph 4.07, 4.08 and 4.09 at pages 7 – 9 of their brief contended that it was absurd for the Election Tribunal to have placed the onus on them to produce documents as in the conduct or’ the election to prove the Appellants’ assertion that election did not take place, and that the onus was clearly on the Respondents who asserted that election took place to tender the documents used in the conduct of the election. This contention of the Appellants was misconceived. The lower Tribunal was right on this point. The burden of proving that voting did not take place in the election is on the Appellants who so asserted. This evidential burden can only shift to the Respondents if the Appellants have discharged the primary burden on them: Sec CHIME v. EZEA (2009) 2 NWLR (Pt.1125) 263 at p.341, AYOGU v. NNAMANI (2006) 8 NWLR (Pt.981) 160 at p.187 and ONOYOM v. EGARI (1999) 5 NWLR (Pt.6031) 416 at 425. The Appellants themselves in their final written address at till: trial Tribunal admitted that the onus in on them to prove that voting did not take place. At page 324 of the Records under paragraph 6(2) the Appellants submitted as follows:
“By operations of sections 135 – 136 of the Evidences Act 2004, the onus showing that voting did not take place in all or substantial part of the Constituency and that the entries in the result sheets were in correct/false was on the petitioners. They were required by these provisions to lead evidence in proof thereof.” (Underlining mine for emphasis).
From the foregoing the Appellants are estopped from canvassing the contrary, Appellants could not prove their allegation that voting did not take place. At least a registered voter from each of the polling booths in each of the wards in the Ogu/Bolo Local Government Area could have been called to show that he could not vote on the day of the election. No single registered voter was called to support this allegation. Another option was for the Appellants to have suppoened 1st Respondent (INEC) to produce the, voters register used for the election to prove that no election took place. See ONOYOM v. EGARI (supra), Rather the only document produced by the Appellants to prove the allegation of no voting was Exhibits P1, which was an alleged complaint made to Rivers State Resident Electoral Commissioner by the 1st Appellant which is the same as the written deposition of the 1st Appellant in this matter on appeal. It is curious that the Appellants who duly obtained the order of the lower Tribunal to inspect and made copies of all the documents used by the Appellants in the election, did exactly that but never tendered any of the documents. It was against the foregoing background that the lower Tribunal made the following findings at page 466 – 467 of the Records:
“In the election petition, just as in any civil matter the burden of proof is on the petitioner who alleges, the facts asserted in his petition… The petitioners have averred that voting did not take place in the polling units in Ogu/Bolo Local Government, massive thumb-printing of ballot papers in an undisclosed place, non-accreditation of voters in the polling units, hijacking of voting materials by agents of the 2nd Respondent working in concert with the members of PDP, no official results were announced, no entry of results in Forms EC8A(1) in the units, EC8B(1), in the Wards; EC8C(1) and EC8D(1) in the Local Government Area and that all the results in possession of INEC, the 1st Respondent, were not based on counted votes but were framed and written by a set of person loyal to PDP.
In trying to prove these serious allegations, the 1st petitioner, PW2 and PW3 who testified for the petitioners failed to adduce cogent reasonable evidence to convince the Tribunal of the allegations averred in the petition. It is surprising therefore that the petitioners who applied for an order of the Tribunal to inspect all the documents used in the election and to obtain certified true copies thereto failed to tender a single copy of the documents, the 1st petitioner said that INEC, the 1st Respondent denied them inspecting all the documents except the ballot papers which they were allowed to inspect. On this we do not believe her. This is because looking at the whole gamut of the petitioners’ petition it would be seen that it is full of self contradictions. When at one arm, the petitioners averred that voting did not take place in the polling units in Ogu/Bolo Local Government Area of Rivers State at another arm they averred that they shall at the trial contend that results from the polling units do not agree with the number at the ward level. The petitioners went further to give notice to the Respondent to produce all the Result Sheets for all the Wards and Polling Units in the L.G.A. See paragraph 2.7 of the petition. To produce the inspected results therefore, will be a clear contradictions and self defeatism on the part of the petitioners, hence they subtly refused to tender them. It should be noted that the only documents listed and tendered by the petitioners in this petition is the letter of complaint written to the Resident Electoral Commissioner (INEC), Rivers State which is exhibit “P1”. The contents of Exhibit “P1″ are the same as the written deposition of the 1st petitioner in this petition. To prove the allegations averred in the petition, the petitioners ought to have done much more than they did. With the scanty evidence before the Tribunal, it will be very difficult for us to grant the reliefs sought by the petitioners.”
I am also mindful of Appellants serious contention at paragraph 4.10 and 4.11 at pages 9.10 of their brief to the effect that the findings and conclusion of lower Tribunal that the Respondents testified in line with their pleadings that accreditation and voting took place and results were entered in the prescribed forms and publicly announce was strange. “Strange,” according to them, because it was not the 1st Respondent’s case that there was accreditation, voting and entry of result in the prescribed forms at the unit, and because the 1st Respondent did not plead the events at the various polling units in its Reply and evidence.
I agree with the learned Counsel for the Respondents that this contention is misconceived. Firstly, the Tribunal formed and held at page 468 of Records that the Respondents in line with their replies have consistently denied the petitioners’ allegations, and maintained throughout the trial that there was election into the Ogu/Bolo Local Government Area 1.louses of Assembly Constituency on the 14/4/2007. That there was accreditation and voting conducted and enlly of results into relevant result sheets and same announced publicly in the presence of Law Enforcement Agencies. The Tribunal held further:
“In fact, the 1st Respondent listed and attached some of the result sheets in its Reply. During the trial the 1st Respondent tendered through its only witness, Mrs. Beauty Ibiama who was Electoral Officer far Ogu/bolo Local Government Area Constituency on the Election date. She testified as RW1 and these documents were tendered through her:
1. 12 Certified True Copies of Independent National Electoral Commission, Receipts Forms admitted as Exhibits “R1(1) – 12”.
2. 11 Certified True Copies of Forms EC8A(1) admitted as Exhibits “R2)1)-(12)’.
3. 11 Certified True Copies of Forms EC8A(1) admitted as Exhibits “R4(1I) – (11)”.
4. An affidavit of Joss or ward units’ result sheets admitted as Exhibits “R5″.
All these were in an effect to show to the Tribunal that election actually took place and results were entered and announced.”
In view of the foregoing findings by the Tribunal, 1 agree with the Learned Counsel for the Respondents that the evidence led at the trial Tribunal’ was justified especially on the point whether accreditation took place before voting and whether the election took place. The following facts are undisputed: By paragraphs 2.5 and 6 of the 1st Respondent’s Reply at page 101 – 102 of the Records and the deposition of RW1 at pages 105 – 106 of the Records, the 1st Respondent placed and led evidence to show that accreditation took place as all the electoral materials needed were distributed to the ward supervisors in the Local Government Area and were used in administering the election and returned to the collation officers at the end of the exercise and that the election was transparent, free and fair in all the records. AI pages 417 – 418 of the Records under, cross-examination RW1 (who was the Electoral Officer as well as the Returning Officer) also confirmed he distributed all the electoral material to Electoral officers and that the materials got to the polling units of all the zones in the constituency, He testified further:
“The materials which I distributed included the unit Result sheets, ballot papers and voters registers.. yes, the election was held, accreditation of voters also took place on that date before the voting commenced. Results were duly entered and collated.”
By paragraphs 2 and 5 of the 2nd Respondent’s Reply at pp. 47 – 49 of the Records, by paragraphs 8(h) and (i) of the deposition of the 2nd Respondent (RW2) Cross-examination of RW2 at p. 424 – 425, cross-examination of RW4 at page 428 Chinea 1-4) of the Records – all these gave perfect account of the fact that accreditation and voting took place and results were entered and announced publicly. From the foregoing I must say that the complaint of the Appellants in baseless and without foundation and ought to be discountenanced.
Appellants also complained about the finding of the Tribunal that the evidence of PW2 and PW3 were not believable because of material contradictions. The Appellants at page 11 of their Brief reproduced part of the Tribunal finding in this connection. However for a better appreciation of the issue involved, the entire findings of the Tribunal at p.464 of the Record are reproduced hereunder thus:
“The evidence of PW2 and PW3 who testified for the petitioners is also not believable because of material contradictions thereof. This is because of one breath they said that electoral materials were distributed to the Ward Supervisors, escorted by a team of policemen and different party agents including themselves but in the same deposition they changed their statement and stated that the materials after leaving the L.G.A. INEC office did not get to the various wards, and did not reach the polling units in the respective wards. While PW2 said because the electoral materials were incomplete, hence he did not regard them as materials; PW3 categorically denied making a statement escorting electoral materials from INEC office in Ogu/Bolo to his ward. With these material contradictions in the evidence of PW2 and PW3, there no may this Tribunal can believe them.”
The lower Tribunal was right because the Appellants’ case was full of contradictions. In one breath the Appellants claimed that there was no election and in another breath they claimed that the election was not properly conducted. These are some more obvious instances. In paragraph 2.1. of the Petition the Appellant averred thus:
“Your petitioners aver that voting did not take place in the polling units in Ogu/Bolo Local Government Area of Rivers State….”
The meaning of this, of course, is that there was no election held on 14/4/2007 in the said Constituency. On the contrary in paragraph 23 of the petition the Appellants averred as follows:
“That the election was fret (sic) with serious irregularity that distorted the true result of the purported election.”
1st Appellant (as PW1) under cross-examination confirmed the contradictory nature of the case, when she said:
“I did not file this Petition because the 2nd Respondent won the election but because there was not election I want us to go to the poll to conduct another election”.
The Appellants cannot at the same time be saying there was election as well as saying there was no election. Therefore the finding of Tribunal at page 467 of the Records that the Appellants’ petition was full of contradictions is justified and borne out of evidence adduced before it.
The 2nd Respondent has taken pains, in greater details in paragraphs 3.9, 3.10 to highlight some material contradictions, particularly in the evidence of P.W.2, and PW3, which justified the Tribunal findings to the effect that their evidence are not believable and are not reliable.
P.W.2 and P.W.3 were both agents of the’ 2nd Appellants, PW2 claimed to perform his electoral duties at wards 3, 4, 5 and 6, PW3 at wards 7 and 8 of the said Ogu/bolo Local Government Area. By paragraphs 5, 6 and 7 of their respective depositions at pages 16 and 19 of the Records they deposed that they were at INEC Office on 14/4/2007 at 7.45 am to perform their electoral duties, and that the election materials were distributed ‘to the wards supervisor escorted by a team of policemen and different party agents including PW2 and PW3. However, under cross-examination PW2 contradicted his evidence in-chief as contained in his deposition and now stated that he never escorted any electoral materials from INEC office at Ogu/Bolo on the Election Day. In similar vein PW3 under cross-examination denied ever escorting the electoral materials. In effect PW2 and PW3 denied their paragraphs 5, 6, and 7 of their own depositions and went on to further contradict themselves in paragraphs 9 and 10 of their depositions that electoral materials were diverted to unknown places after the materials left the INEC Office in the Local Government Area.
I dare say from the foregoing that the evidence-in-chief of PW2 and PW3 where they stated that they escorted the electoral materials from 1st Respondent’s office at Ogu/Bolo in the morning hours of the Election Day clearly contradicted their evidence under cross-examination where they stated they never saw or escorted any electoral materials on the day of the election. Curious, therefore, is their subsequent deposition that these same electoral materials were diverted to unknown places. This claim has no foundation in view of their cross -examination as shown from the foregoing.
It is trite law that where a witness has given on oath, two material inconsistent evidence he is not entitled to the honour of credibility and to be believed. I therefore agree with the lower Tribunal that their evidence is unbelievable and unreliable and ought to be discountenanced. I must also in the same view discountenance the argument of the Appellants to the contrary.
The Appellants at paragraphs 4.16 and 4.17 of their questioned the basis of the belief of the lower Tribunal of the testimony of the Electoral/Returning Officer (RW1) that she duly distributed the election materials for the election. The Appellants further contended that the comparison of Forms EC25B(1) (receipt of materials collected by SPOS) and EC8B(II) (the results) will show that certain electoral materials were lacking, for this reason it is difficult to agree with the finding of the Tribunal on this point.
The basis of the finding of the lower Tribunal is rooted in evidence of RW1, at pages 414 – 417 and under cross-examination at page 418. This vivid account of the sensitive election materials by RWI was never contradicted by the Appellants. The Tribunal was perfectly right in relying on it to believe that sufficient electoral materials were duly supplied by RW1, accounted for and used for the election. Besides, this point now raised by the Appellant did not form part of their case. It is not their case that same voting materials were’ short-supplied or not supplied at all to some Wards in the constituency. Also there is no pleading in the petition alleging that the election materials were not sufficiently supplied to Wards 1, 2, 3, 4, 6, 10 and 11 as contended by the Appellants in their brief. Rather that the election did not hold at all because electoral materials were not supplied to any of the units in the Wards in the entire constituency.
The Appellants finally contended at paragraphs 4.22 – 4.23 or their brief that the unit/poll results in Exhibit R4(1) – (11) and R.5 which were tendered by the 1st Respondent were wrongly relied upon by the Tribunal because the said results were not pleaded or attached to the Reply of the 1st Respondents and that the 1st Respondent refused to produce them for use of the Appellants at the trial in spite of notice to that effect. I agree with the learned Counsel for the Respondents that the contention of the Appellants on this point is misconceived, because by paragraphs 2.7 and 2.8 of the petition (pp.2 and 3 of the Records) the Appellants pleaded the unit results entered in the election. They gave notice in the said pleading to the 1st Respondent to produce the results sheets. At the hearing of the petition the Appellants did not make any attempt to tender any of the documents used in the conduct of election, including the results. They failed to make any request to the 1st Respondent to hand over the result to them so that they could tender same in evidence at the trial. Consequently, the Appellants failed to tender the certified copies of the document used in the election including the result sheets in spite of the Order of the Tribunal allowing them to inspect and obtain certified true copies of such documents. It is in view of the failure on the part of the Appellants to tender the relevant documents they pleaded that the 1st Respondent who was ordered to produce same, produced the unit results in evidence having been specifically pleaded. The Appellants, have not shown that the unit results produced by the 1st Respondent are not the results entered at the election. It is instructive to note that the result of the election as pleaded by the Appellant at page 1 of the petition at (page 1 of the Records) inter alia reads:
“The said election was purported to have been held on the 14th day of April 2006 when MRS. CHARITY FUBARA AND LADY MAUREEN P. TAMUNO were amongst the candidates and the purported scores by these candidates were 3,545 and 58,897 respectively.”
These votes tally with the unit/poll results in Exhibit R4(1) – (11) and R.5. See also evidence of the 1st Appellant at page 405 (lines 13 – 14) of the Records. From the foregoing, to my mind, these are the results the Appellants have not been able to effectively challenge, nullity or invalidate. It has not been shown that the 2nd Respondent did not score majority of lawful votes cast at the election.
It has not been shown that the lower Tribunal exercising its discretion in admitting the said 100 or so unit results under the -provision of order 33 rule 14(2) of the Federal High Court Rules 2000, and S.222 of the Evidence Act.
The exercise of this discretion by the Tribunal has not been impugned in this appeal. Again, by paragraph 4(8) of the Election Tribunal and Court Practice Directions 2007, the Tribunal is empowered to grant leave again, by paragraph 4(8) of the Election Tribunal and Court Practice Directions 2007, the Tribunal is empowered to grant leave in exceptional circumstance to receive in evidence documents which were not filed along with the petition or Reply. Exceptional circumstance has been defined by the Courts as synonymous with interest of Justice in paragraph 43(1) and (2) of the First Schedule to the Electoral Act 2006. Sec ABUBAKAR v. YAR’ADUA (2008) 4 NWLR (Pt.1078) 465; INEC v. INIAMA (2008) 8 NWLR (Pt.1088) 182, OGUNSHAKIN v. AJIDARA (2008) 6 NWLR (Pt.1082) 1 and CHIME V. EZEA (supra) at 355 D – E.
In view of the foregoing in the circumstance and facts of this case, I cannot interfere with the findings of the lower Tribunal since they were clearly shown to be based on the pleadings, and evidence of the parties.It is fairly settled and trite law that where a Court or Tribunal which had the opportunity of hearing and watching the demeannour and general conduct of the witnesses before it, correctly evaluated the evidence that was placed before it, and thereby arrived at a proper finding, this Court will not interfere with such Court’s/Tribunal’s finding. For the foregoing I resolve this issue in favour of the Respondents.
ISSUE NO.2
I have found that the learned Counsel for the respective parties in arguing this issue, in the main, particularly the Appellants’ Counsel merely repeated and adopted same of the point raised under ISSUE NO.1
I agree with the Appellants in their submission under paragraphs 2.26 and 4.27 at pages 17 – 18 of their brief as to the necessary steps that should be taken in the conduct of an election. To comply with the Electoral Act, 2006, namely, the proper accreditation of voters, fair conduct of polls, counting of votes, collation of results and signing of forms; and publication of results are the essential requirements aforesaid.
However, it is instructive to note the findings of the Lower Tribunal on this point at page 468, portion of which I have reproduced and summarized earlier in this judgment, when I dealt with ISSUE No.1. In fact I had held that from the pleadings and evidence led at the trial the lower Tribunal was justified in its findings that there was proper accreditation before voting at the election. 1st Respondent pleaded and led evidence to show accreditation took place and all the electoral materials needed were distributed to the ward supervisors in the Local Government Area, used and returned to the collation officers at the end of voting exercise. He testified that the election was transparent, free and fair. Under cross-examination RW1, the Electoral Officer/Returning confirmed Officer/Returning confirmed the claim of the 1st Respondent. However, concerning the allegation of over-voting, I agree with the Respondents that it was not the case of the Appellants that non-compliance they pleaded and relied on was in respect of over-voting, but rather it was that the election did not take place at all in all the units of the Ogu/Bolo Local Government Area, because there was no election materials. The Tribunal accepted this fact when it held at page 469 of the Records that it was not the petitioners’ (Appellants’) case that there was over-voting in the election but that election did not hold at all.
The Appellants at paragraphs 4.3, 4.32, 4.33 and 4.34 at pages 19 – 21 of their brief contended that the Appellants’ witnesses testified that election did not take place and that the onus was on the Respondents who asserted that election took place to prove same. And that therefore the Tribunal was wrong to have placed onus on the Appellants to produce evidence that election did not take place. This is a rehash of the earlier contention of the Appellants at paragraphs 4.07, 4.08, and 4.09 at pp. 7 – 9 of the Appellants’ brief.
Furthermore, the Appellants contended at paragraphs 4.35, 4.36 and 4.37 of their brief. This issue as they had earlier done at paragraphs 4.18, 4.19 and 4.20 of their brief in issue 1 to the effect that the contents of Exhibits R1(1) – (12) compared with the results in Exhibits R2(1)- (12) show that all the election materials were not supplied to a substantial part of the constituency and that non-compliance has effect on the overall result of the constituency. Again this is another rehash of the earlier contention of the Appellants to which the 2nd Respondent’s Counsel has adequately made same submission and this Court had dealt with dismissing the Appellant’s contention. But in their contention under ISSUE NO.2 the Appellants went further to contend at paragraphs 4.35 at page 22 of their brief that the contents of Exhibits R1(10) and (11) made nonsense of the testimonies of RW2, and RW4 claiming that they voted at the election whereas from Exhibit R(10) and (11) voters register and ballot papers were not supplied to wards 10 and 11 of the constituency. I agree with the Learned Counsel for the 2nd Respondent that this paragraph 3.11 in their brief of argument, especially concerning the evidence of RW1, the Electoral/Returning Officer), who supervised the distribution of sufficient electoral materials for the election. Sec also the detail testimony of RW1 at pages 4.18 and 4.19 reproduced at p.28 (the 2nd Respondents’ brief). His testimony clearly shows that RW1 supplied the electoral materials to all the wards including wards 10 and 11. Evidence of RW2 and RW4 that they voted in wards 10 and 11 respectively after accreditation and that results were entered and announced also shows that the electoral materials were duly supplied.
For foregoing reason, I must discountenance the complaint of the Appellants in this regard and their complaint at paragraph 4.36 of their Brief of argument where they countered that there was non-compliance and irregularities in 7 out or 12 Wards in the constituency affecting 40,171 votes. There is no pleading or evidence to support this contention. Submission of Counsel no matter how eloquently presented is no substitute for pleading of evidence of a party. See CHIIMA v. EZEA (supra).
In view or the foregoing issue No.2 is resolved in favour of the Respondents but against the Appellants.
On the whole in view or the foregoing reasons, I find that this appeal is lacking in merit. I dismiss it while I affirm the decision or the lower Tribunal dismissing the petition of the Appellants, challenging the declaration of the 2nd Respondent as the winner of 14/4/2007 election into the Rivers State House or Assembly for Ogu/Bolo Constituency. I do not think the circumstance of this appeal warrants my awarding the Respondents, particularly the 1st Respondent any costs; and therefore no order as to costs.
Other Citations: (2009)LCN/3415(CA)
