Hon. Angbas Stephen Akyen & Anor. V. Hon. Adamu Mu’azu & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO.SODIPE, J.C.A.

This appeal is against the judgment of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal. Nasarawa State (hereinafter simply referred to as the “lower Tribunal”) delivered on 26/11/2007 dismissing the Appellants Petition No: EPT/NS/012/07.

The facts leading to the filing of the Petition are that: the 1st Appellant was the candidate of the 2nd Appellant (All Nigeria Peoples Party (ANPP)) on the 14th April, 2007 General Elections for the Nasarawa State House of Assembly representing Lafia North Constituency, The 1st Respondent on the other hand was the candidate of the Peoples Democratic Party (PDP) for the same election. At the end of the election, the 3rd and 4th Respondents declared the 1st Respondent as the winner with a total vote of 43,760 while the 1st Appellant was the runner-up with a total of 24,324 votes. The Appellants being dissatisfied with the outcome of the election and particularly the declaration of the 1st Respondent as the winner filed a Petition before the lower Tribunal challenging the return of the 1st Respondent. The Appellants in the Petition, complained that the 1st Respondent was not elected by a majority of lawful votes cast at the election; in that the election was fraught with fundamental irregularities, malpractices and substantial non-compliance with the provisions of the Electoral Act, 2006. The 1st and 2nd Respondents filed a joint Reply to the Appellants’ Petition. Likewise the 3rd – 49th Respondents filed a joint Reply to the Petition.

Only the Appellants called witnesses at the hearing of the Petition. They called 11 witnesses. The Respondents rested their respective cases on that of the Appellants. In its judgment the lower Tribunal dismissed the Petition of the Appellants on the ground that they did not prove their case.

The Appellants being dissatisfied with the judgment of the lower Tribunal on 15/12/2007 lodged a Notice of Appeal of the same date against the said judgment. The Notice of Appeal contains 11 grounds of appeal. The reliefs which the Appellants seek from this Court in the Notice of Appeal are: “(i) AN ORDER setting aside the judgment of the trial Tribunal affirming the return of the 1st Respondent; (ii) AN ORDER allowing the appeal; (iii) AN ORDER declaring the 1st Petitioner (i.e. 1st Appellant) as the winner of the 14th April, 2007 election having scored the majority of lawful votes cast at the election for Lafia North House of Assembly Constituency seat of Nasarawa State House of Assembly. The Appellants in the alternative claim for “AN ORDER nullifying the entire election of 14th April, 2007 and set (sic) aside the declaration of Han. Adamu Mu’azu as the elected member of the Nasarawa State House of Assembly for Lafia North Constituency and order for fresh election in the Constituency or Adogi ward.”

In accordance with the Rules of this Court, parties filed and exchanged briefs of argument. Six Issues are formulated for the determination of the appeal in the Appellants’ amended brief of argument settled by SA Ayiwulu. The Issue read thus:-

“1. Whether the trial Tribunal was right when it rejected the Summary of Results Sheet for Ashige Ward (Form EC8B(1) in evidence and whether the decision of the Tribunal would have been different if form (sic) EC8B(1) had been admitted in evidence. (Distilled from Ground 1)

2. Whether the trial Tribunal was justified in rejecting the evidence adduced by the Petitioners’ witnesses on over-voting in Ashige ward for lack of pleadings. (Grounds 2, 3 & 4)
3. Whether the nullification of the entire result of election of Adogi ward for non-compliance with the provision of Section 54(2) of the Electoral Act, 2006 did not substantially affect the conduct of the election for Lafia North Constituency of Nasarawa State House of Assembly. (Grounds 5 & 6)
4. Whether the trial Tribunal gave a wrong interpretation to Section 54(2), (3), & (4) of the Electoral Act, 2006 when it failed or

refused to nullify the election of the 1st Respondent and order for bye-election in the Constituency after cancelling 13,078 votes of Adogi ward. (Grounds 7, 8 and 9)

5. Whether the trial Tribunal evaluated the totality of evidence at the trial and the judgment cannot be said to be against the weight of evidence. (Grounds 10 & 12)
6. Whether the learned Tribunal wrongly applied the decision in the case of BUHARI VS OBASANJO 23 NSCQR 42 in this petition.

(Ground 11)”

The 1st Respondent’s brief of argument was settled by M.A. Ebute, Therein learned counsel while stating that he adopted the Issues formulated in the Appellants’ brief of argument proceeded to re-formulate them into five Issues.

The Issues as re-formulated read:-

“1. Whether the Trial Tribunal was right in rejecting Form EC8B(1) the Summary of Result Sheets for Ashige Ward,

2. Whether the Trial Tribunal was right or justified in rejecting the evidence of most of the Petitioners witness (sic),
3. Whether the failure to nullify the entire election upon cancellation of 13,078 votes from Adogi Ward is in breach of S.54 of the Electoral Act.
4. Whether the Trial Tribunal evaluated the evidence adduced and whether the judgment is against the weight of evidence.
5. Whether the Trial Tribunal wrongly applied the decision in Buhari Vs. Obasanjo (2005) NWLR (PT. 841) 1.”

The brief of argument of the 2nd Respondent was settled by Abdulkarim A. Kana, Three Issues were formulated therein for the determination of the appeal. They read thus: –

“1. Whether the Tribunal below was right when it declined to admit the summary of result sheet for Ashige Electoral Ward (Form EC8B (1)) which was altered after certification.

2, Whether the Tribunal below was right when it refused to utilize the evidence of the appellants’ witnesses with respect to over-voting in Ashige Electoral Ward which was not pleaded in their petition. (Relates to Grounds 2, 3, 4, 10 & 12)

3. Whether the Lower Tribunal was right when it refused to order a fresh election in Adogi Electoral Ward in view of the clear lead of the 1st Respondent and the substantial compliance with the electoral (sic) Act. (Relates to Grounds 5, 6, 7, 8, 9 & 11)”

The brief of argument of the 3rd – 49th Respondents was settled by Hassan M. Liman. The Issues formulated for determination of the appeal in the brief are the same word for word with those formulated in the 2nd Respondent’s brief of argument.

The appeal was heard on 7/5/2009. S.A. Ayiwulu learned lead counsel for the Appellants in urging the Court to allow the appeal relied on and adopted Appellants’ amended brief of argument dated 20/2/2009 filed on 23/2/2009 but deemed as properly filed and served on 8/4/2009 as well as Appellants’ Reply brief of arguments filed on 23/2/2009 but equally deemed as properly filed and served on 8/4/2009. Learned lead counsel also said that he filed a Notice of preliminary objection to the Notice of Contention of the 3rd – 49th Respondents and that the arguments in respect of the preliminary objection have been incorporated in the Reply brief of the Appellants. Having adopted the said arguments, he urged the Court to strike out the Notice of Contention in question for being incompetent.

Learned lead counsel for the 1st Respondent, O.J. Onoja in urging the Court to dismiss the appeal relied on and adopted the said Respondent’s brief of argument dated 14/2/2008 filed on 19/2/2008 but deemed as properly filed and served on 26/5/08. Likewise, learned counsel for the 2nd Respondent A.A. Kana relied on and adopted the said Respondent’s brief of argument dated 30/5/2008 filed on the same day but deemed to have been properly filed and served on 8/4/2009

Learned lead counsel for the 3rd – 49th Respondents Hassan M. Liman relied on and adopted the said Respondents’ brief of argument dated 14/2/2008 filed on the same day but deemed to have been properly filed and served on 26/5/2008 in urging the court to dismiss the appeal. Learned lead counsel also said that the Respondents filed a Notice of Contention in the appeal on 28/5/2008 pursuant to the leave of this Court granted on the same day. He referred to the arguments in respect of the Notice of Contention filed on 9/4/2009 and the Reply to the Appellants’ Notice of Preliminary Objection and adopted therein relation to the Notice of Contention. Learned lead counsel urged the Court to dismiss the appeal and allow the Notice of Contention.

The appeal will be determined upon the Issues formulated by the Appellants as the said Issues in my view sufficiently encapsulate the Issues formulated by the Respondents and at the same time actuate the grouse of the Appellants with the judgment of the lower Tribunal having regard to their grounds of appeal.

APPELLANTS’ ISSUE 1

Appellants’ lead counsel disclosed that this Issue relates to whether or not an alteration or amendment of an election result is permissible and the effect of the rejection of Form EC8B(1) on the Appellants’ case. Learned lead counsel submitted that an alteration of an election result is permissible and cited the cases of Basheer v, Same (2003) WLRNC 3 at 59 and 76; and Waziri Ibrahim v. Shehu Shagari (1983) 2 SNCLR 176 at 193-194. He submitted to the effect that the lower Tribunal was wrong not to have admitted a certified copy of Form EC8B(1), the summary of results from Ashige Ward on the ground of alteration. Learned lead counsel said that the document was counter signed by Ibrahin Agabi the 5th Respondent who is the person that made the alteration as the signatures on il are identical; and that the said Respondent was not called as a witness: and that there was no denial of the document in question. Furthermore, learned lead counsel submitted that a certified copy of the document was admissible from the Bar as the Respondents who had custody of all election materials including the Form EC8B(1) in question did not produce the original to establish any discrepancy on the face of the document. It was also said that not only did the alteration on the Form EC8B(1) go to form as it related only to the name of the Electoral Ward therein, but that also that the failure of the 5th Respondent to produce the document in obedience to the subpoena served on him rendered the copy in the Appellants’ possession admissible on the authority of Buhari v, Obasanjo (supra).

Learned lead counsel for the Appellants went on to submit that the rejection of the Form EC8B(1) in question, occasioned the Appellants a miscarriage of justice, In this regard it was submitted that the rejection of the document deprived the Appellants victory at the Tribunal as the 17,641 invalid votes which they sought to cancel from the results of both parties was refused. The rejection of the document Appellants’ lead counsel further argued also deprived the Tribunal from making its findings on irregularities to wit: over-voting in Ashige Ward where 17,641 votes were credited to the 1st Respondent. The case of A-G Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 661 was cited in aid of the submission that the Court of Appeal would set aside a decision where wrongful rejection of evidence affects its outcome.

Dwelling on the rejection of Form EC8B(1) in respect of Ashige Ward under Issue 1 formulated in the 1st Respondent’s brief of argument, learned lead counsel for the said 1st Respondent submitted that the alteration of the document was not such that could have been explained from the Bar and that it was affected by Section 128 of the Evidence Act. He further submitted that even if the document had been admitted in evidence it would have been of no consequence as it was not pleaded in respect of any specific fact but at large. The case of Agbodike v, Onyekara (2001) 10 NWLR (Pt. 722) was cited in aid of the submission that a document cannot be pleaded at large.

Dwelling on the Issue under consideration, learned counsel for the 2nd Respondent submitted that the Appellants tendered from the Bar, a certified copy of Form EC8B(1) in respect of Ashige Ward and that the lower Tribunal ruled it as inadmissible and marked it rejected after objection was taken to it, by the Respondents respectively, learned counsel while not disputing that an altered document may be admissible however submitted that objection was taken to the admissibility of the Form EC8B(1) in question on the ground that the alteration post dates the date of certification. The proceedings of the lower Tribunal where it gave consideration to the document was quoted copiously and it was submitted that the said Tribunal was right in its decision on the matter,

The submission of learned lead counsel for the 3rd – 49th Respondents on this issue, is a rehash of that of learned counsel for the 2nd Respondent and so need no separate review,

The question of admissibility of the certified copy of Form EC8B(1) for Ashige Ward was dwelled upon by the lower Tribunal at pages 349 – 351 of the Records. The portion of the Records in question shows that learned lead counsel for the Appellants sought to tender the document in question from the Bar. Objection was taken to the admissibility of the document by Mr, Oyeyipo on the ground that “the document sought to be tendered has been altered, and the alteration predates certification i.e. made after the document was certified. Therefore that it is no longer a certified true copy. The other learned counsel for the other Respondents associated themselves with Mr. Oyeyipo his objection to the admissibility of the said document. Learned lead counsel for the Appellants before the lower Tribunal submitted that the document is a certified copy and is presumed to be genuine unless the content is “fraud” and relied on section 114 of the Evidence Act and the case of Daggash v. Bulama (2004) 14 NWLR (PI. 892) 144 at 187. The lower Tribunal in its Ruling stated to the effect that the document being one that has been altered was not such that can be properly tendered from the Bar as the document as altered becomes unless and indeed worthless, The document was consequently marked “Rejected”,

The lower Tribunal it is observed said objection was taken to the admissibility of the document by Mr. Oyeyipo because there was alteration on it, and that the alteration “predates” the certification “i.e. made after the document was certified,” May I say that “predates” is not the right word to use when an alteration is made after certification had been done, The right word is “postdates”. Be that as it may.

Appellants’ lead counsel never argued that the alteration on the document he sought to tender before the lower Tribunal actually did not postdate the date of certification of the document but he said that the document enjoys the presumption of genuineness pursuant to Section 114 of the Evidence Act unless the content is “fraud”.

The question that begs for an answer in my humble view is whether a certified document that bears on its face an alteration made after the date it was certified has not by that very fact destroyed the presumption of genuineness attributed to it by law. The answer to this poser I cannot but say is in the affirmative. Now, in the case of KANU ORJI V. I. EMOVON & ORS (1991) 1 NWLR (Pt. 168) 168 at 476 it was held amongst others that where alterations are patent on the face of a document tendered in evidence there is need for the party tendering it to provide explanation in respect of the alterations.

Learned lead counsel for the Appellants sought to tender the document in question from the Bar. He was aware of the fact that the document bore alteration on its face. He has variously argued in the Appellants’ brief of argument that alteration is permissible in law; that the alteration in the document was to form; and that the 5th Respondent did not produce the original or certified copy of the document to establish any discrepancy. All the submissions of learned lead counsel for the Appellants in my view overlook the very fact that in as much as the document which he sought to tender on its face shows that it was altered after it was certified, this has indicted the said document and/or has put in issue the fact that the alteration was done for immoral, unlawful or illegal purpose. I believe that it is only commonsensical that if an alteration was on the face of a document before and/or at the date of certification of the said document, then the alteration must bear an earlier date or at the worst the same date as the date of certification, Given the case earlier cited, and the tenor of the Ruling of the lower Tribunal, all that I understand the said Tribunal as saying was that in view of the visible anomaly on the face of the Form EC8B(1) sought to the tendered by the Appellants, the same could not be admitted save it was tendered through a witness who would have testified concerning the alteration on it. The lower Tribunal in my considered view was very right in Rejecting in evidence the Form EC8B(1) which Appellants’ lead counsel sought to tender from the Bar.

Given this position, the question as to whether the rejection of the said Form EC8B(1) has occasioned the Appellants any miscarriage of justice is rendered otiose and unnecessary of consideration,

From all that has been said above, Appellants’ Issue 1 has to and is hereby resolved against thern

APPELLANTS’ ISSUE 2

Appellants’ lead counsel said that this Issue questions the correctness of the decision of the lower Tribunal in rejecting the Appellants’ evidence in the proof of their case on irregularities and non-compliance with the provisions of the Electoral ACT, 2006, applying the principle that evidence led on facts not pleaded goes to no issue and will be disregarded by the court, and also whether the rejection of the evidence occasioned a miscarriage of justice.

Appellants’ lead counsel stated that the lower Tribunal in its judgment rejected the evidence of PWs 8, 9 and 10 on the ground that their evidence was not in support of facts in their pleading. He submitted that the lower Tribunal was wrong in this regard as the Appellants pleaded in paragraphs 12, 13, 15, 16, 24 and 26 of their Petition, material facts of irregularities, malpractice and non-compliance with the provisions of the Electoral Act and that this entitled them to lead evidence of over-voting in respect of the paragraphs earlier mentioned above. It was the submission of learned lead counsel that over-voting is a specie of electoral irregularity and malpractice and that it is clear that the Appellants pleaded irregularities and malpractices in relation to all the polling units in the Ashige Ward. The cases of Seriki v, Are (1999) 3 NWLR (Pt. 595) 469; and Boni Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 554 were cited in aid, Appellants’ lead counsel submitted that the Appellants are not supposed to plead evidence but material facts and that even at that, subordinate facts are not supposed to be pleaded, He further submitted that the over-voting testified to in the evidence of PWs 8, 9, and 10 is in respect of subordinate facts, In aid of the submissions, the cases of Arabambi v, A.B. Ind. ltd (2006) 8 WRN 1; Eke v. Okwaranyia (2001) 4 SCNJ 300 at 320; Odunsi v, Bamgbala (1995) 1 NWLR (Pt. 374) 641; and Otudo v. Nteogwuile (1996) 4 NWLR (Pt. 440) 56 at 71-72. Again stating that election petitions are special proceedings to which the rules of copious pleadings as in civil cases do not apply and citing the case of Aondokaa v. Gyegweh (1989) 1 N.E.P.L.R. 19 at 62 amongst other in aid, Appellants’ lead counsel submitted that the lower Tribunal was wrong when it held at page 414 of the Records that the testimonies of PWs 8, 9 and 10 in respect of over-voting in Ashige Ward was inadmissible, This according to Appellants’ lead counsel is the more so as it was decided in the case of Agomuo v, Ogwuegbu (1999) 4 NWLR 4 NWLR (Pt. 599) 405 at 413 that an election tribunal can notwithstanding that a petition is devoid of averment in respect of over-voting nullify an election when there is conclusive evidence of over-voting. Appellants’ lead counsel further submitted that the Appellants having pleaded material facts of irregularities, malpractices and noncompliance, it was for the Respondents to have asked for further particulars pursuant to Paragraph 3(7) of the Practice Directions and Order 4 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000. That the Respondents having failed to do this, the Appellants in the circumstance were entitled to lead any evidence which supported paragraphs 12, 13, 14, 15, 16, 24 and 25 of their petition, The case of Yar’adua v. Barda (1992) 3 NWLR (Pt. 231) 638 at 652 was cited in aid. He submitted that the documentary evidence (Exhibit PET 13) and oral evidence rejected by the lower Tribunal was relevant, reliable, credible, weighty and unchallenged/uncontradicted and that the said Tribunal ought to have acted on the same.

Appellants’ lead counsel submitted that the Appellants would have won the case if the evidence of PWs 8, 9 and 10 and Exhibit PET 13 had not been rejected by the lower Tribunal. In this regard, he stated that a total of 17,641 votes would have been nullified if the lower Tribunal had relied on the evidence of the aforementioned witnesses and Exhibit PET 13. And that in that event the 1st Appellant would have been left with a clear victory over the 1st Respondent. Appellants’ lead counsel having noted that the Respondents did not give evidence submitted that the Appellants only needed to discharge a minimal burden of proof in respect of their case and that they did this in respect of over-voting in Ashige Ward.

The Issue under consideration was treated by learned lead counsel for the 1st Respondent under the second of the Issues formulated in that Respondent’s brief of argument.

Learned lead counsel for the 1st Respondent made the observation that only one of the Appellants’ witnesses testified in respect of one out of the 24 polling units in Ashige Ward. Others he further stated merely gave evidence without relating the evidence to any of the remaining 23 polling units, He said to the effect that the evidence of the 1st Appellant deserved no credibility or weight as it was discredited under cross-examination and cited the case of Ozude v, IGP (1965) 1 All NLR 102 in support. The evidence of PWs 8, 9 and 10, he submitted was at variance with the pleadings in the petition as the evidence sought to establish that there was over-voting at Ashige Ward whereas what was pleaded in the petition was that there was no election and yet election results were declared. The case of Salawu v. Ajidu (1985) 3 NWLR (Pt. 12) 248 at 269 was cited as deciding that a party is not allowed to do a somersault in court from his pleading. It was further submitted that an allegation that election was not held but votes allocated to candidates and results declared bordered on fraud which is a criminal allegation and therefore the Appellant ought to have pleaded the allegation of fraud which they did not do. It was said that this was fatal to their case and the cases of Tor Tiv v. Wombo (1996) 9 NWLR (PI. 471) 161 at 174; and Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 529 were cited in aid, Lead counsel for the 1st Respondent submitted to the effect that the complaint of the Appellants in respect of Ashige Ward being that there was no voting there, they were in the circumstance duty bound to have specified and particularized their allegation and that having not done so there was no need to request for further particulars and cited the case of Overseas Construction Co. Ltd v. Creek En!. Nig. Ltd (1985) 3 NWLR 407 at 410 in aid, It was also submitted that the fact that the Respondents called no evidence did not mean they had admitted the case of the Appellants and that the burden was still on the Appellants to establish their case. The case of Aubergine Co. Ltd v, Habib Nig. Bank Ltd (2002) 4 NWLR (Pt. 757) 338 was cited in aid.

Dwelling on the Issue under consideration under Issue 2 formulated in the 2nd Respondent’s brief of argument, 2nd Respondent’s counsel submitted that the lower court was right to have rejected the evidence of PWs 8, 9 and 10, He submitted that the case of Otudo v. Nteogwuile (supra) and Agomou v. Ogwuegbu (supra) were inapplicable to the instant case, The case of Buhari v, Obasanjo (supra) was cited as affirming that the rules relating to pleading is applicable in election case, Learned counsel submitted that Appellants’ petition not only did not particularise over-voting in relation to Ashige Ward but also did not plead any over-voting in relation to the said Ward. Learned counsel equally submitted that failure of the Respondents to call evidence did not amount to their having no evidence on their side. This is because the law is that evidence elicited under cross-examination is as good evidence adduced or proffered in examination-in-chief and the case of SPDC of Nigeria ltd v. Abba (2005) All FWLR (Pt. 257) 1533 at 1548 was cited in aid.

The submissions of learned lead counsel for the 3rd – 49th Respondents in relation to the Issue under consideration are a rehash of those of the 2nd Respondent’s counsel already reviewed. Accordingly, there is no need to engage in a separate review of the same again.

One thing that is glaringly deducible from the submissions of Appellants’ lead counsel as reviewed above: is that the Appellants never pleaded their reliance on over-voting in seeking for the invalidation of the election in Ashige Ward or in any of the polling unit thereat. If it was the Appellants’ case that they predicated their case in relation to Ashige Ward on over-voting, nothing would have been simpler than for Appellants’ lead counsel to have referred to the relevant paragraph of the petition in that regard. Indeed the submission of the Appellants’ lead counsel that the Appellants were entitled to lead evidence of over-voting based upon the averments in paragraphs 12, 13, 15, 16, 24, and 26 of the petition where material facts of irregularities, malpractices, and non-compliance were pleaded (because over-voting is a specie of electoral irregularity and malpractice) eminently shows that the Appellants never predicated their case in respect of Ashige Ward on over-voting.

In the light of what has been stated above, I am therefore in no doubt that the lower Tribunal glaringly appreciated the case of the Appellants as set up in their petition when it stated at pages 406 – 407 thus: –

The grounds of the Petition as contained in paragraphs 9, 10, 11, 12, 13 and 27 of the petition are that the 1st respondent was not elected by a majority of lawful votes, fundamental irregularities, malpractices, and substantial non-compliance with the provisions of the Electoral Act.

The challenge of the election result by the Petitioners is directed against 3 wards namely: (a) ASHIGE, (b) ADOGI and (c) ARIKYA. The results for the entire ASHIGE ward are questioned on the ground of NON-VOTING, i.e, that there was no voting in all the pooling units, yet results were declared. See paragraphs 15 10 21 of the petition,

The results for ADOGI ward are questioned on the sale ground of OVER-VOTING, see paragraph 22 of the petition, For ARIKYA ward, only the results of 5 polling units are being challenged on the twin grounds of non-voting and failure to record certain scores secured by the petitioners in their favour. See paragraph 23 of the petition,”

I have myself painstakingly perused the petition, and I am in total agreement with the succinct manner in which the lower Tribunal compartmentalized the case of the Appellants,

Appellants’ lead counsel has argued that over-voting is a specie of irregularity and malpractice and that having pleaded these anomalies, the Appellants were entitled to lead evidence on over-voting, This is particularly so as the rules of copious pleadings as in ordinary civil cases are not applicable to election petitions,

The submission of Appellants’ lead counsel would appear to overlook the position of the law that election petitions are by their very nature a specie of civil cases, albeit a special specie. See EJIOGU V. ONYEAGUOCHA (2006) All FWLR (pt. 317) 467 at 487. This being the case, the courts have recognised the right of parties in an election petition to formulate their respective cases which is binding on them as per their pleadings. For this reason parties are only not allowed to urge to the court a different case from that pleaded, but the court as well, is bound to determine only the case as formulated by the parties in their pleadings. See INEC V. RAY 2005 All FWLR (Pt. 265) 1047 at 1082, It is also for this reason that the courts have remained firm in insisting that a party should be consistent in stating his case and in proving the same. The court will not allow a party to an election petition to take one stance in his petition, and then turn around or somersault during trial to present a different stance, See AWUSE V. ODILI 2005 All FWLR (Pt. 261) 248 at 296.Given the position of the law as stated above, and having regard to the case of the Appellants as set up in the petition, and which was definitely and rightly as well as appropriately captured by the lower Tribunal, I definitely do not see how the Appellants who alleged non-voting in respect of Ashige Ward could have expected any relief granted them in respect of the said Ward on the basis of over-voting. The Appellants had the presence of mind to predicate their challenge to the return of the 1st Respondent as it pertains to Adogi Ward on over-voting. Not having predicated their relief in respect of Ashige Ward on over-voting, in my view is a clear indication that over-voting was not applicable to whatever happened in the said ward. The argument that over-voting being a specie of irregularity, malpractice and non-compliance, is only a display by the Appellants of their total misapprehension of reliance on aforementioned grounds in a petition. The law is that in all petitions where allegations are made on non-compliance with Electoral law, and/or election malpractices and irregularities, they constitute criminal offences and the burden is on the petitioner to prove them beyond reasonable doubt. See MAIKUDI V. MUSA (2004) All FWLR (Pt. 230) 1096 at 1111.

Appellants’ lead counsel also argued that the non-request for further particulars in respect of the allegations of irregularities, malpractices and noncompliance, entitled the Appellants to lead evidence on over-voting. Again the Appellants would appear not to appreciate their stance in relation to these allegations, and which is that they were never directed to Ashige Ward. It is therefore inconceivable how the Appellants who predicated their case in relation to Ashige Ward unequivocally on non-voting could reasonably expect the Respondents to request for particulars in respect of over-voting.

Given all that has been said before now, I find the lower Tribunal most justified in rejecting the evidence before it that went to establish the issue of over-voting in Ashige Ward as it is by law enjoined to have either expunged or discountenanced the said evidence which went to no issue as the case of the Appellants in relation to Ashige Ward was not predicated on over-voting. I also do not see how evidence that the lower Tribunal by law was enjoined to have expunged or discountenanced and which the said lower Tribunal has also been found to have rightly rejected, could have occasioned the Appellants any miscarriage of justice.

From all that has been said before now, Appellants’ Issue 2 is accordingly resolved against them.

APPELLANTS’ ISSUES 3 AND 4

Appellant lead counsel in arguing these Issues together, submitted in the main that the lower Tribunal having rightly nullified the result for the Adogi Ward for non-compliance with Section 54(2) of the Electoral Act, 2006 in addition ought to have set aside the return of the 1st Respondent and order a fresh election pursuant to the provisions of subsections (3) and (4) of Section 54 (supra).

Appellants’ lead counsel submitted that it was clear from the combined effect of the provisions of Section 54 that the quantity or number of votes nullified is a determining factor for the proper interpretation and application of the Section, It was the further submission of Appellants’ lead counsel that the lower Tribunal having nullified 13,078 votes in Adogi Ward and 1029 votes from Gidan Adamu Agyo polling unit of Ashige Ward, the 1st Respondent was left with 29,653 valid votes as against 24,990 valid votes of the 1st Appellant thereby leaving the 1st Respondent with a minimal majority votes of 4,663 over the 1stAppellant. Appellants’ lead counsel submitted that the result of fresh election in Adogi Ward with 13,078 voters if won by the 1st Appellant will change the overall result of the constituency in favour of the 1st Appellant.

Appellants’ lead counsel proceeded to highlight the principles of interpretation which the lower Tribunal ought to have applied in the interpretation of the provisions of Section 54 and cited numerous cases considered relevant.

Learned lead counsel for the 1st Respondent dealt with the Issue under consideration under Issue 3 in the said Respondent’s brief of argument. The Issue reads: “Whether the failure to nullify the entire election upon cancellation of 13,078 votes from Adogi Ward is in breach of S. 45 of the Electoral Act”.

Learned lead counsel submitted that it is not the law that once an election in a Ward is nullified because of over-voting then the entire election must automatically be nullified. This according to learned lead counsel is because every case has to be treated on its own peculiar facts and circumstances. It was submitted to the effect that by virtue of Section 54(4) of the Electoral Act, cancellation of votes without proceeding to nullify the election is justified Insofar as the cancellation does not substantially affect the result of the election as in the instant case where the 1st and 2nd Respondents still remained in the lead. Learned lead counsel submitted that Section 54(4) must be read with Section 146 of the Electoral Act.

2nd Respondent’s counsel dwelled on the Issue under consideration under Issue 3 formulated in the said Respondent’s brief of argument. The Issue reads: ‘Whether the lower Tribunal was right when it refused to order fresh election in Adogi Electoral Ward in view of the clear lead of the 1st Respondent and substantial compliance with the Electoral Act 2006″.

Learned counsel submitted that the lower Tribunal was right when it refused to order a fresh election in Adogi Ward taking into consideration the entirety of its findings with respect to the said Ward vis-a-vis the entire result of the election which showed that the 1st Respondent still led despite the cancellation of the result of Adogi Ward, To buttress this stance, learned counsel submitted that the law is trite that it is not every finding in electoral matters that will affect the entire result of an election and cited the cases of Nnaji v. Agbo (2006) All FWLR (Pt. 305) 736 at 760, Awolowo v. Shagari (2007) EPR 996 at 1018-1019; and Biyu v. Ibrahim (2005) All FWLR (PI. 274) 261 at 289 in aid, He further submitted that the lower Tribunal look the above stated position of law into consideration when it relied on Section 146 of the Electoral Act in its judgment as shown at page 420 of the Records. It was submitted that the framers of the Electoral Act 2006 inserted Section 146 to deter petitioners from making spurious calls for the invalidation of elections on insignificant non-compliance with the Act. In other words, that not every non-compliance, will affect the result or return of candidates in elections.

Learned counsel also submitted that the lower Tribunal rightly upheld the return of the 1st Respondent when in its judgment at pages 420-421 of the Records it applied the decision in the case of Buhari v. Obasanjo (supra).

Dwelling on the submissions of Appellants’ lead counsel as they relate to the interpretation to be accorded the provisions of Section 54 of the Electoral Act, learned counsel for the 2nd Respondents submitted to the effect that reliance by Appellants’ lead counsel on the provisions of Section 54(2) without taking into consideration the provision of Section 54(4) was misconceived and that the lower Tribunal clearly averted its mind to the import of the said provision by refusing to order a fresh election when it exercised the power vested on INEC by Section 54 in question. Learned counsel further stated the fundamental canon of interpretation to be that every clause or provision in a statute must be construed with reference to the con and other clauses of the provisions of the Act and cited the case of Nigerian Port Plc v. Okoh (2006) All FWLR (Pt. 307) 1145 at 1157 in aid. He also submitted that the case of Ojie v. Richard Ofen-Imu 3 NEPLR 45 at 64 cited in the brief of argument of the Appellants was not applicable having regard to the facts of the instant case.

The submissions of learned lead counsel for the 3rd – 49th Respondents in respect of the Issue under consideration in the brief of argument of the said Respondents are a rehash of the submissions of 2nd Respondent’s counsel reviewed above. There is no need therefore to embark on a review of the submissions again.

The law would appear to be settled when it comes to the interpretation of the provisions of statutes; and it is that they must be construed literally and the words therein given their ordinary meanings. in this regard see the following cases: –

1. ACTION CONGRESS & ANOR V. INEC (2007) All FWLR (Pt. 378) 1012 at pages 1088 – 1089, In this case, the Supreme Court stated to the effect that the main function of a judge it has consistently been said is to declare what the law is and not what it is supposed to be. This is against the backdrop that the business of law making is that of the legislature. The Judge in the discharge of his primary duty is to give the provisions of the Constitution or statutes, where they are unambiguous, their literal, natural and ordinary grammatical meanings. That a Judge in order to do justice in the exercise of his interpretative jurisdiction must find out the intention of the legislature with regards to the relevant provisions of the Constitution or statute that call for interpretation, demands nothing extraordinary. This is because the intention to be sought is as expressed in the words used in couching any of the provisions in question.
2. HON. MICHAEL DAPIANLONG & 5 ORS V. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) All FWLR (Pt. 373) 81. In this case the Supreme Court reiterating its position in the case of Fawehinmi vs. I.G.P. (2002) FWLR (Pt. 108) 1355, etc, stated thus at pages 128-129. “The proper approach to the interpretation of clear words of statutes is to follow them, in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning: see This is generally also true of the construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation”.
3. ALHAJI SHEU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE & 2 ORS (2007) All FWLR (Pt. 360) 1415. In this case, the Supreme Court dwelling on the duty of the court when it comes to statutory interpretation stated at page 1444 thus “It is now settled law that the duty of the courts, is to interpret the words contained in a statute or Constitution in their ordinary and literal meaning. Certainly, it is not the duty of the court, to go outside the words used and import an interpretation which may be or is convenient to it or to the parties or one of the parties.”
4. ATIORNEY.GENERAL OF LAGOS STATE V. EKO HOTELS LIMITED & ANOR (2006) All FWLR (Pt, 342) 1398 where the Supreme Court per Tobi, JSC; dwelling on the interpretation of constitutional provisions stated at pages 1471-1472 to the effect that words in a Constitution bear their ordinary grammatical meaning, when the intention of the maker of the Constitution is clear and can be captured at a glance of the language used. That it is when the meaning is not directly obvious on the face of the language, that the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention.

It is also pertinent to state that in giving the words of a statute its literal and ordinary meaning, one must not lose sight of the position of the law that the court is enjoined to take into consideration the totality of the statute and not pockets of it, in order to arrive at the intention of the law maker. See ODUTOLA HOLDINGS LTD V. LADEJOBI (2006) All FWLR (322) 1393 at 1416; NIGERIAN PORTS AUTHORITY PLC V. LOTUS PLASTICS LIMITED & ANOR (2006) All FWLR (Pt. 297) 1023 at 1054; and RAY V. MADUABU (2006) All FWLR 310 1637 at 1660.

It is most glaring from the submissions of Appellants’ lead counsel in respect of the interpretation to accord the provisions of Section 54 of the Electoral Act that he only restricted himself to the provisions of the Section in question in order to identify or discover the intention of the law makers. This is definitely wrong given the cases hereinbefore cited, The totality of the Electoral Act ought to have been taken into consideration and having not done this Appellants’ lead counsel no doubt was in serious misapprehension of the what the lower Tribunal ought to have done in the instant petition having nullified the result in respect of Adogi Ward for non-compliance. He submitted that the lower Tribunal ought to have set aside the return of the 1st Respondent and ordered a fresh election. I am of the considered view that Appellants’ lead counsel is very wrong in this regard. In my humble view when the provisions of Section 54 of the Electoral Act are read in community with the other provisions of the said Act, one is left in no doubt that it is not the intendment of the Electoral Act that cancellation or nullification of the result of election in a polling unit or polling units of a Ward or even of a whole Ward automatically portends the nullification or cancellation of the whole election and ordering of a fresh one. This is particularly so when the nullification or cancellation of votes as in the instant petition was done by the Election Tribunal. This is because in election matters the Tribunal pursuant to Section 146 is empowered not to invalidate an election when the said election has been conducted substantially with the provisions of the Act despite the non-compliance which resulted in cancellation of the result in question, once the said non-compliance did not substantially affect the result of the election. Now, it is not in dispute that the lower Tribunal did nullify or cancel the result of the whole Adogi Ward and one other polling unit in a different Ward. Despite this the lower Tribunal still affirmed the return of the 1st Respondent. The reasoning of the lower Tribunal in this regard is apparent from what is stated at pages 419 – 422 of the Records to wit:

The summary of our findings on this issue is therefore that in all the Petitioners have succeeded in proving that:

1. Voting did not take place in Gidan Adamu Agyo polling unit, with the consequence that the result for that unit shall be and is hereby nullified.
2. There was over-voting un (sic) Adogi Ward with the consequence that the entire results of that Ward shall be and is hereby nullified.
3. A total of 666 votes scored by the Petitioners in Shuku and Kunga Wayo polling units of Arikya Ward were wrongly excluded from the Ward Summary and eventual final result for the Constituency, and the same shall be and is hereby added to the score of the Petitioners for that Ward.

Now, what is the effect of these findings and conclusions on the overall results declared?

The total votes recorded for Gidan Adamu Agyo is 1029. The total votes recorded for Adogi Ward is 13078. Both added together total 14107. Now, from exhibit PET 12 the declared final result for the entire constituency, the Petitioners scored 24324 votes while the 1st Respondent scored 43760 voles. Adding the 666 votes formally (sic) deprived them in Arikya Ward to their votes, the Petitioners total votes will come to 24990. If all the 14107 invalid votes arising from cancellation of the result of Gidan Adamu Agyo polling unit of Ashige Ward and the entire Adogi Ward are subtracted from the 42760 votes scored by the 1st Respondent, he will still have left 29653 valid votes as against the 24990 of the Petitioners, Thus, the 1st Respondent will still be in the lead of the 1st Petitioner by a margin of 4663 votes. Thus, he will still have been elected by a majority of valid votes cast at the election.

Section 146(1) of the Electoral Act 2006 provides

The lower Tribunal having averted its mind to the provision of Section 146 of the Electoral Act as can be seen from the quotation above, later said and concluded thus: –

” ….. Also in spite of these irregularities, we are of the view that the election has been conducted in substantial compliance with the provisions of the Electoral Act 2006. More importantly, as we had earlier observed, even when all the invalid votes arising from irregularities as subtracted from the votes scored by the 1st Respondent, we find that he still remains the winner of the election by the majority of lawful votes cast in the Lafia North Constituency,

In all, we find no reason to disturb the declaration of the 1st Respondent as the winner of the 14th April 2007 election for the Lafia North Constituency seat into the Nasarawa Slate House of Assembly,

This petition therefore fails and same is hereby dismissed, but with no order as to costs,”

Given all that I have said concerning Sections 54 and 146 of the Electoral Act before now, and the portions of the judgment of the lower Tribunal quoted above, the said Tribunal properly applied the provisions of the Electoral Act earlier mentioned and came to a correct conclusion that the nullified results did not substantially affect the result of the election.

In the circumstances Issues 3 and 4 must be and are hereby resolved against the Appellants.

APPELLANTS’ ISSUE 5

Appellants’ lead counsel disclosed that this Issue questions the evaluation of the evidence adduced by the Appellants through the 11 witnesses they called in the proof of the petition. Appellants’ lead counsel dwelling on this Issue adopted his arguments in respect of Appellants’ Issue

2. It is to be appreciated that Appellants’ Issue 2 relates to the rejection by the lower Tribunal of the evidence adduced in respect of over-voting in Ashige Ward and which Issue has been resolved against the Appellants.

Appellants’ lead counsel in arguing this Issue clearly disclosed that the basis of the Issue is that they called 11 witnesses while the Respondents called none but yet the lower Tribunal held them not to have proved their case,

Dwelling on this Issue, learned lead counsel for the 1st Respondent referred to pages of the Records whereat the lower Tribunal engaged in the evaluation of evidence and made the point that the oral and documentary evidence adduced through PWs 1 – 7 related to unpleaded issues and were rightly rejected.

Both learned counsel for the 2nd Respondent and learned lead counsel for the 3rd – 49th Respondents did not bother to dwell on this Issue again having first dealt with the issue relating to the rejection of evidence in respect of over-voting in Ashige Ward.

I have perused the Records and the distinctive feeling I have is that Appellants’ lead counsel is by his brief of argument now doing what he ought to have done before the lower Tribunal but omitted to do. This is the marrying of evidence adduced by witnesses to documents which he extensively engaged in, in the Appellants’ brief of argument. A perusal of the testimony of all the PWs disclosed that apart from the witnesses tendering their voters’ cards, they never confirmed that their names were in the voters’ registers talk less of identifying the same therein. Anyway, I have painstakingly scrutinized the Judgment of the lower Tribunal and I am of the view that the said Tribunal having regard to the totality of the evidence adduced by the Appellants as shown in their witnesses’ statements on oath vis-a-vis what is contained at pages 407 – 419 of the Records it is futile 10 accuse the lower Tribunal of improper evaluation of evidence adduced in the instant petition.

It must be appreciated that it is settled law that the burden of proving a particular fact is on the party who seeks to rely on it and who will fail if evidence in that regard is not adduced. See Sections 136 and 137 of the Evidence Act. Also see AKINYELE V. AFRIBANK PLC [2006] All FWLR (pt. 305) 722. It is thus not a truism that the Appellants must be entitled to judgment because the Respondents did not adduce any evidence at the trial of the instant petition or because the Respondents rested their respective cases on that of the Appellants. Similarly, the Respondents though they called no evidence at the hearing of the petition may still end up successful, if they could demolish the case of the Appellants under cross-examination, such that what is left of the totality of the evidence led by the Appellants under examination-in-chief will not be worth acting upon by the lower Tribunal in favour of the Appellants. See MECL LTD V. AGILITY AND BROTHERS ENTERPRISES NIG. LTD )2006) All FWLR (Pt. 298) 1289.

Finally it is also settled law that a court can only act on unchallenged and uncontroverted evidence that is relevant, admissible and credible, See DUROSARO V. AYORINDE (2005) All FWLR (Pt. 260) 167

The lower Tribunal given all that has been said before now, properly evaluated the oral and documentary evidence before it and eminently came to the right conclusions/findings at page 419 of the Records.

In the light of the above, Appellants’ Issue 5 is resolved against them.

APPELLANTS’ ISSUE 6

This Issue simply questions the application of the case of Buhari v. Obasanjo (supra) to the instant petition by the lower Tribunal. Appellants’ lead counsel having set out the facts of the case in question simply submitted that the lower Tribunal applied the case out of con and urged this Court not to apply the said case and resolve Issue six in the Appellants’ favour. Both learned counsel for the 2nd Respondent and learned lead counsel for the 3rd – 49th Respondents did not bother with this Issue in the respective briefs of arguments of their clients; while learned lead counsel for the 1st Respondent on his own part submitted that said case was relevant in as much as it dealt with the issues/allegations of irregularities and non-compliance with the provisions of the Electoral Act which has featured prominently before the lower Tribunal in the instant petition.

Principles of law are always enunciated or reiterated in decisions of courts particularly appellate courts. Lower courts often times draw inspiration from such principles of law and apply the same to matters before them whenever relevant. To apply a principle of law in a case, the facts of the case where the principle is stated and that to which it is being applied need not be the same. It is sufficient if the situation in the case in which the principle is being applied exists for its application. The Appellants’ case in their petition was predicated on irregularities, malpractices and non-compliance with the provisions of the extant Electoral Act. There is nothing in law that prevents the lower Tribunal to have made reference as it did in its judgment to the case of Buhari v. Obasanjo (supra) which undoubtedly deals with the issues of irregularities, malpractices and non-compliance that can result in the nullification of an election having regard that the petition of the Appellants threw up such issues.

Given all that has been said above, Appellants’ Issue 6 is resolved against them.

Learned lead counsel for the 3rd – 49th Respondents filed a Notice of Contention dated 14/2/2008 and filed on the same day in this appeal. The written submissions in support of the Notice of Contention equally dated 14/2/2008 was deemed as properly filed and served on 20/5/2008. The submissions of learned counsel for the 3rd – 49th Respondents in the written submissions in support of the Notice of Contention, is to the effect that the lower Tribunal was wrong to have nullified the entire votes or the whole of the result in Adogi Ward, That it is only the results in respect of the seven polling units pleaded by the Appellants in paragraph 22 of the petition that the lower Tribunal ought to have nullified. That the votes in the polling units of Adogi Ward pleaded by the Appellant and which the lower Tribunal ought to have nullified are only 6712; but the lower Tribunal instead of this, nullified a total of 13078 by nullifying the entire votes in the Adogi Ward. Learned lead counsel by the Notice of Contention seeks that the difference between 13078 votes for the entire Ward and 6712 votes for the units pleaded by the Appellants and which is 6366 be added to the votes of the 1st Respondent thereby giving him a larger number of votes by which he would have led the election.

Appellants’ counsel as earlier stated raised a preliminary objection to the Notice of Contention, The preliminary objection was argued in the Appellants’ Reply brief to 3rd – 49th Respondents’ Notice of Contention. The objection of Appellants’ lead counsel in the main is that the Notice of Contention is incompetent due to the fact that what the 3rd- 49th Respondents are seeking is a review of a specific finding of the lower Tribunal concerning Adogi Ward.

I have given due consideration to the preliminary objection to the Notice of Contention; and the Notice of Contention itself. I am in no doubt that no ground whatsoever has been disclosed or set out in the Notice upon which the judgment of the lower Tribunal can be affirmed in addition to the ground on which it is based, The finding of the lower Tribunal in respect of the votes of Adogi Ward that were nullified was based on its evaluation of evidence adduced before it. If there is any need to reverse and/or vary anything that the lower Tribunal has found in relation to the votes nullified at Adogi Ward based on evaluation of evidence, this cannot be done by a Notice of Contention. This can only be done by lodging an appeal against the finding of the lower Tribunal as rightly contended by Appellants’ lead counsel. Accordingly, I find the preliminary objection of the Appellants’ counsel as it pertains to the Notice of Contention meritorious. It is upheld.

Consequently, the Notice of Contention of the 3rd – 49th Respondents is hereby struck out for being incompetent.

Having earlier resolved all the Issues formulated by the Appellants for the determination of the appeal against them, the judgment of the lower Tribunal as delivered has to be affirmed and the appeal of the Appellants dismissed. Accordingly, this appeal is hereby dismissed and the judgment of the lower Tribunal delivered on 26/11/2007 is affirmed.

I make no order as to costs.

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Other Citations: (2009)LCN/3435(CA)