Engineer Samuel Oraegbunam V. Hon. Mrs. Bridget Chukwuka & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.,
This is an appeal against the judgment of the National Assembly,Governorship and Legislative Houses Election Tribunal No. II of Anambra State sitting at Awka, (simply referred to as “the Tribunal”) delivered on the 22nd of February, 2008. At the said tribunal, the appellant herein, filed a petition on 11th May 2007 dated 10th May 2007 against the respondents. In the said petition, the appellant as petitioner claimed that he had contested the election held on 14th April 2007 in to the House of Assembly seat of Njikoka Constituency II of Anambra State on the platform of Action Congress party.
In the petition at the tribunal, the petitioner challenged the declaration and return of the 1st respondent who contested the said election with him on the same seal but on the ticket of the Peoples Democratic Party (PDP). The 2nd, 3rd and 4th respondents were officials of the 5th respondent INEC which is the official body authorized by the constitution to conduct election in the country. The main grouse of the petitioner is that the said election was fundamentally flawed by non-compliance with the Electoral Act 2006 hence he urged the Tribunal to void the election and declare it a nullity for that reason. According to the petitioner, the provisions of Section 20, 27, 28, 44(3), 44(2) 48, 64, 72, 74 and 78 of the Electoral Act 2006 were breached or violated.
To prove his petition at the tribunal, the petitioner/appellant called nine witnesses to testify for his case, while the 1st respondent on the order hand and the 2nd – 5th respondents called live and six witnesses respectively in defence of their respective cases. The tribunal after a full blown trial dismissed the petitioner’s petition.
Aggrieved by the dismissal of his petition by the tribunal, the petitioner/appellant filed Notice and Grounds of Appeal on 13/3/2008 dated same day containing eight grounds of appeal which are reproduced hereunder with their particulars:
GROUNDS OF APPEAL
“GROUND ONE (1)
The Tribunal erred in law when it ruled thus:
“In the circumstance of this case therefore, to interpret the amendments of the Practice Direction to offer protection of the use of pseudonyms to only the petitioner’s witnesses will not only go against the spirit of the decision in ABUBAKAR V. YAR ADUA supra but it will lead to absurdity and a denial of the right of the Respondents to be heard. First if this Tribunal Strikes out the witness statements of the Respondents it will mean that the evidence given by them in defence of their case including that given under cross examination be expunged. The result will be that the Respondents’ right to defend themselves which had been given would be withdrawn at judgment state. This to us will occasion great injustice which we do not think was the intention of the Practice Direction 2007 and the amendment thereof. .. We shall therefore not strike out the said statements on oath in the interest of doing substantial justice.
PARTICULARS OF ERROR
The 1st to 5th Respondents in filing the mandatory’ statement on oath in support of their replies, used pseudonyms instead of their real and full names, and without any attempt to state their place of abode, nationality, their profession or trade as required by the provisions of Section 90(b) of the Evidence Act, Cap 112 LFN.
GROUND TWO (2)
The Tribunal misdirected itself when it held:
….. the petitioner has not discharged the burden on him of proving that the voter’s registers had strange names. PARTICULARS OF ERROR
Despite the Tribunal’s finding that no attempt was made to display voters list before the election for complains and objection to be made, and the evidence before it that strange names dominated the makeshift register provided on the election day by INEC, the Tribunal still went ahead to hold that the burden was not discharged.
GROUND THREE (3)
The Tribunal erred when it held that: “The petitioner has failed to discharge the heavy burden on him to show that there was failure on the part of the Respondents to hold elections in most polling units in the Constituency.”
PARTICULARS OF ERROR
The Tribunal considered evidence of the Petitioner’s witnesses who said there were no election at all as material contradiction with those who said that voting took place in some units but, were inconclusive either, due to disruption by irate electorates who could not find their names on the register of voters and in few places where voting was not disrupted there were no result forms to record such votes.
GROUND FOUR (4)
The Tribunal erred when it held that: “On the whole, we find from evidence before us that the lateness of arrival of voting materials in some units did not affect the results of the election.”
PARTICULARS OF ERROR
The Tribunal in coming to this conclusion decided to ignore the pleading and the evidence of the Petitioner’s witnesses choosing the version presented by the Respondents’ witnesses.
GROUND FIVE (5)
The tribunal erred when it held that: “On the whole, we hold that the petitioner has not shown that voters were frustrated due to absence of result sheets and left.
PARTICULARS OF ERROR
While the Tribunal acknowledged that all the petitioner’s witnesses gave evidence that there were no result sheets supplied for the election, it however, considered the evidence of a lone witness who said result sheet without the original and some few duplicates were brought to few units in his ward as contradicting the rest, even when the witness gave evidence that voters declined to vote unless the original and the other missing be produced. What is more, the Tribunal is of the opinion that people do not need result sheet to vote.
GROUND SIX (6)
The Tribunal erred when it held that: “On failure to count, announce and collate results at all levels, we find that the evidence of the petitioner’s witnesses on absence of result sheets was contradictory.”
PARTICULARS OF ERROR
The Tribunal considered the evidence of the petitioner’s ward collation agents who visited and monitored all the polling units in the ward as evidence not credible, even when it was shown that collation and announcement of results were by the election guidelines to be done at the polling, ward and constituency levels.
GROUND SEVEN (7)
The Tribunal erred when it held that: “on none publication of election results, we find that this claim was never substantiated as the petitioner in his petition admitted that he downloaded the result of the election from the internet”.
PARTICULARS OF ERROR
The Tribunal apart from misconstruing the averments of the Petitioner in this regard completely disregarded the fact that election results must be pasted on the INEC Notice Board before being posted on the internet.
GROUND EIGHT (8)
The judgment is against the weight of evidence proffered by the Petitioner at the Tribunal.”
Briefs of argument were filed and exchanged by parties to this appeal as enjoined by the rules of this Court. The Appellant’s brief of argument dated 2nd June 2008 was filed on 3/6/08. Therein, eight issues for determination were proposed by the appellant as follows:-
- Whether the Honourable Tribunal was right in refusing to strike out all the 1st and 2nd to 5th respondent witnesses’ statements on oath, when the said statements on oath is found to contravene paragraph 1(6) of the Practice Direction and Section 90(6) of the Evidence Act.
- Whether the Honourable Tribunal was right in holding that the appellant did not discharge the burden of proof, that strange names of persons not registered in the Constituency dominated the makeshift registers brought to few polling stations where INEC officials turned up on the Election Day.
- Whether the Honourable Tribunal was right in holding that the appellant failed to discharge the burden on him that the election did not hold in most polling units in the constituency.
- Whether the Honourable Tribunal was right in holding that lateness of more than four hours in arrival of election materials in few polling stations where INEC officials turned up did not affect the result of the election.
- Whether the Honourable Tribunal was right in holding that the appellant did not prove that voters refused to vote due to absence of result sheets in few of polling stations where INEC officials turned up and left in frustration.
- Whether the Honourable Tribunal was right in holding that the evidence of the appellant witnesses that result of polls in few polling stations, where some semblance of voting took place was not collated at all levels contradict his evidence that there is general absence of result sheets.
- Whether the Honourable Tribunal was right in holding that the Appellant did not substantiate the non-publication of election results conducted in a few polling stations on account of admittance that he left after fruitless visit to INEC Website downloaded cooked up result, and
- Whether the Honourable Tribunal properly evaluated the evidence both oral and documentry put before it by both parties in reaching its conclusion.
In the 1st respondent’s brief of argument dated and filed on 16th of June 2008, two issues for determination of the appeal were formulated, namely:
(i) Whether the Honourable Tribunal was right that the appellant did not prove that the election of 14/4/2007 conducted in Njikoka II State Constituency was in breach of Electoral Act and that the complaints were not substantiated and did not affect the results of the election.
(ij) Whether the Honourable Tribunal was right in refusing to strike out and expunge the evidence of the respondents in their statements on oaths.
Similarly, the learned counsel for 2nd to 5th respondents in his brief dated and filed on 13/6/2008 raised two issues for the determination of the appeal which said issues read as below:-
(a) Whether the Tribunal below was right in its judgment dismissing the petition of the Appellant for failure to discharge the burden placed on the appellant to establish that there was non-compliance with the provisions of the Electoral Act relied upon by the appellant in his petition which non-compliance was substantial as to warrant the nullification of the election of the 1st respondent for Anambra State House of Assembly for Njikoka 1 State Constituency (Ground 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal).
(b) Did the Appellant suffer any miscarriage of justice resulting in lack of fair hearing of the Appellant’s petition by the refusal of the Tribunal to strike out the written statement on oath of the Respondent’s witnesses and admitting the evidence of the Respondents witnesses who used coded names or alphabets pseudonyms in the said written statements on oath of the witnesses (Ground one of the Notice of Appeal).
A close look at the issues for determination raised by the 1st respondent’s counsel on the one hand and those formulated by learned counsel to the 2nd to 5th respondents leaves one in no doubt that they are virtually the same. To my mind, the said issues have encapsulated all the issues raised by the appellant’s counsel and are more elegantly couched. In treating this appeal therefore I will choose to be guided by the issues raised in the 1st respondent’s counsel’s brief of argument supra. Even at the risk of being repetitive, I will set them out below for further guidance and ease of reference. The Issues read thus:
(1) Whether the Honourable Tribunal was right that the Appellant did not discharge the burden of proof that the election of 14/4/07 conducted in Njikoka I State Constituency was breach of the provisions of the Electoral Act and that the complaints were not substantiated and did not affect the result of the election.
(2) Whether the Honourable Tribunal was right in refusing strike out and expunge the evidence of the Respondents in their statements on oaths.
However before embarking on the consideration of the two issues supra, my Lords, permit me to observe that issues numbers 2 to 8 raised in the appellant’s brief of argument are simply a catalogue of alleged violations of the provisions of the Electoral Act 2006 which represent the sole ground on which he questioned the election at the lower tribunal. These complaints bordered on the following:
(i) Inclusion of strange names in the register meant for the constituency in dispute;
(ii) Election not held in most polling units in the constituency;
(iii) Late arrival of election materials In few polling units;
(iv) Absence of results sheets in few polling units which led to the voters’ refusal to vote;
(v) Non-collation of results where there was semblance of voting;
(vi) Petitioners agents denied access to the certification of materials.
(vii) Disparities in the voters’ register and non-display of same;
(ix) Stuffing of ballot papers in 50% of the polling units.
To my mind, all these complaints relate to alleged non-compliance with the provisions of various Sections of the Electoral Act 2006 which I feel could comfortably be raised under a single or few grounds of appeal to which one or two issues can simply be raised on them. It is on this precinct that I feel the first issue raised by the 1st respondent’s brief of argument had properly and adequately captured issues 2-7 in the appellant’s brief of argument. i will not say more on this.
Now coming to the first issue for determination supra, it is instructive to note that the appellant as petitioner at the lower tribunal, made a catalogue of accusations/complaints or allegations most of which border on negligence or dereliction of duty on the part of the respondents (especially INEC stall) in the conduct of their statutory duty of conducting the election held on 14th April 2007 in the petitioner/appellant’s constituency. Certainly, the gamut of most of these allegations/complaints also border on criminality. I shall below consider the said allegations side by side with the evidence adduced by the petitioner/appellant (if any) and the evidence adduced by the respondents (if any) vis-a-vis the evaluation or non-evaluation of the same by the tribunal before determining the propriety of the decision of the tribunal in its judgment now being appealed against.
It is the submission of the learned counsel for the appellant that the fifth respondent (INEC) did not display voters’ list or register in all the wards in the disputed constituency before, during or even after the election held on 14/4/2007 as mandated by the provisions of Section 20 of the Electoral Act 2006. He called some witnesses who testified to that effect in line with their dispositions in their respective statements on oath. The learned counsel conceded under cross-examination that there were complaints galore from the anxious electorates who were unable to find their names in the make-shift register provided in some polling booths where INEC officials showed up. Analyzing the testimonies of the witnesses called by the respondents, it is the submission of the appellant’s counsel that some of them testified that voters register were displayed in local government secretariat only while some said it was only displayed in Enugwu-Ukwu Ward I and while some could not state the duration of the alleged display of the voters’ list/register. He argued that there were contradictions in the testimonies of respondents’ witnesses with regard to the display of voters register by the INEC officials and on receipt of complaints and objections on the display of supplementary voters’ list, adding that there were no contradictions on the testimonies of the witnesses called by him. There upon, he urged this court to resolve the point in his favour.
The learned appellant’s counsel who admitted that makeshift voters’ register was displayed went further to submit that the said makeshift register displayed on the election day contained strange names adding that such voters’ register was unreliable. On this point the learned counsel argued that the mandatory provisions of Section 20 of the Electoral Act were not complied with as there was no such display of register at all for a period of between 5 days and 14 days.
Closely related to the issue of display of voter’s register/list by INEC officials, is also the appellant’s complaint that registered voters in Njikoka I Constituency were disenfranchised due to the absence of their names and the inclusion of strange or foreign names of persons not resident or registered in the disputed constituency which said foreign names glaringly appeared in the make-shift register. This, according to them, led to the inability of voters duly registered in the wards in such polling boots not to vote as their names were not in the makeshift registers produced by INEC staff on the Election Day. He said that in some cases no voters register were brought at all. He argued that PWs 5, 6, 7, 8 and 9 testified to that effect in line with their statements on oaths. He further submitted that there was no real elections sequel to these anomalies on the part of INEC staff in most of the polling booths in his constituency due to the absence of the names of majority of those who turned up to vote but just to find out that their names were not on the improvised computer print out brought to the polling station to serve as voters’ registers. He argued that since the respondents ignored the tribunal order to produce actual voters register, this court should presume under section 149(d) of the Evidence Act that it was with-held by INEC because if it had been so produced it would be unfavourable to it. He cited Tewogbade vs. Akande (1968) NWLR 404 at 408.
Learned counsel for the appellant also submitted on this point, that the INEC officials being the makers and custodian of the voters registers ought to produce them to disprove the evidence on want of real election on account of voters not finding their names on the voters’ register. See INEC vs. Ray (2004) NWLR (Pt. 892) 99.
In his reply, the learned counsel for the Ist respondent submitted that the petitioner/appellant who has the burden to prove that the non-display of voters’ register was such as would amount to substantial non-compliance, did not tender any evidence that he had ever complained to the INEC (the fifth respondent) of the alleged non-display of the register. He also did not establish by evidence as to how the alleged non-display of voters’ register affected the election since any allegation of non-compliance by a petitioner must be supported by evidence of non-compliance and the figures i.e. votes that the non-display omitted or attracted: See Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 193C. On the alleged disenfranchisement on account of alleged disparities on the voters’ register, it was submitted by 1st respondent’s counsel that that was not true. He said it is also not true that the appellant as petitioner had ever alleged that the voters register was a make shift as he claimed in paragraph 7.03 of appellant’s brief of argument. The learned counsel for 1st respondent referred to page 553 of the Record of Proceedings where the appellant as petitioner when being cross-examined as PW9 stated that there was voters’ register on that day and that nobody made a deposition that he went to the polling station and looked for his name but did not find it. He finally submitted on that point that the petitioner did not tender extracts of the voters’ register and did not call any witness who was disenfranchised to testify or tender voter’s card showing that he did not vote. He said failure to tender such extract of voters’ register which was pleaded by the petitioner fell short of establishing of the allegation that the voters’ register contained glaring disparities or the inclusion of strange or foreign names therein. He said the trial tribunal was therefore correct in invoking the provisions of section 149(d) of the Evidence Act in presuming that had the registers been tendered they would have been against the petitioner hence the with-holding of same by him.
Responding on these points, the learned for the 2nd to 5th respondents submitted that by his averments, the petitioner/appellant admitted that there was voters’ registers produced by the presiding officers and the party, the Action Congress even made extracts or obtained extracts of the said register. He said the petitioner did not however tender any of the extracts of voters’ registers in evidence to show the alleged disparities and/or to show that there were strange or foreign names therein. The petitioner also did not also tender any voters’ card. He added that non publication of voters’ register before during or after the election is not a ground for nullification of an election more especially since the petitioner/appellant himself admitted that voters register was supplied on 14/4/2007 for the election. Other submissions made on these points by the learned counsel very much tally with those made by the 1st respondent’s counsel and thus need not be repeated here.
It can be gathered from the record of proceeding in this appeal that some of the witnesses called by the appellant as petitioner, testified at the trial tribunal that there was no display of the register of voters by INEC (5th respondent) before, during and after the election as enjoined by Section 20 of the Electoral Act (See testimonies of PWs I, 3, 5, 7, 8 and 9). On the other hand RW6 testified that he displayed a copy of the list of voters’ register in February, 2007 at the Local government and not in the wards even though he was contradicted by RWs 1 & 2 who said they saw the voters’ list at their respective wards while RW 4 said there was no such display at all. In the light of these apparent contradictory evidence of the respondents, I think the evidence of the witnesses of the petitioner is more preferable and acceptable than that of the respondent that the register was actually not displayed by the 5th respondent before the election as rightly held by the tribunal. That however does not mean that the register was not totally in existence or was not displayed during the election since even the petitioner himself while being cross-examined stated that there was voters’ register on that day and that nobody deposed that he went to the polling station and failed to find his name therein. (See page 553 of the Record of Proceedings). Evidence also abound that extracts of the register was made even though not tendered by the petitioner/appellant.
Now the next issue is, Could the non-strict compliance with the provisions of Section 20 be said to be fatal enough to affect the election results as would warrant the nullification of the election? I think not. In my humble view, the non-display of the voters’ register five to 14 days to the date of the election is purely a pre-election matter. The purport of such display is to enable members of the public to scrutinize and possibly lodge complaint or objection to the displaying body with regard to omission of voters’ names or inclusion of foreign or strange name(s) in the displayed register or to seek for necessary correction of any mistake, therein. By Section 20(2)(a) and (b) of the Electoral Act 2006 any person can complain to the Commission against inclusion in the supplementary register of voters’ names or persons not qualified to be registered as a voter in the State, Local Government Area Council, ward or registration area or even that person so included was late as at that time. Complaints can also be lodged by a duly registered person whose name had also been omitted in the voters’ register. Subsection (3) of Section 20 of the same Act provided the procedure to follow in making such objection or claim to the INEC. These provisions therefore clearly show that the issue of display of register before the election is a pre-election matter
It is now well settled law that pre-election matters are not normally considered in determining issue of substantial non-compliance.
In the first place, there is no evidence adduced by the petitioner/appellant that he complained earlier to the Commission about the non-display of voters register as required by Section 20 of the Electoral Act 2006. Evidence was also not led by the petitioner to show that such non-display he alleged had affected the result of the election. By proving substantial non-compliance with the provision of Section 20 of the Act the appellant had only scaled the first hurdle in his effort to prove non-compliance he complained of. The second vital issue for him to prove is to show that such non-compliance had affected the result of the election. In Buhari vs.Obasanjo (2005) 13 NWLR (941) at 193, the Supreme Court held that in an allegation of noncompliance with provision of an electoral law made by a petitioner, the onus is also on him to firstly establish the substantial non-compliance and to also establish that the non-compliance had or could have affected the result of the election See also Nnwole vs.. Iwuagwu (2004) 15 NWLR (Pt.895) 61; Yusuf Ujusf vs. Obasanjo(2001) 8 NWLR (Pt. 956)96 a1178, 180 and 181.
On the complaint that many voters did not find their names in the ‘make-shift’ register produced in some polling stations and the alleged inclusion of some strange or foreign names, or omission of some voters’ names leading to their being disenfranchised, that allegation to my mind does not hold water in view of the petitioner’s remark under cross-examination where testifying as PW9 that there was voters register displayed on the election day and that a voter has complained that he did not see name. It is worthy of note that the petitioner never tendered any document at the trial not to talk of the voters’ register be it extract or makeshift register as claimed in appellant’s brief of argument. A petitioner claiming disparities in voters register should at best tender the register or registers to establish the alleged disparities. Similarly no voter was called to testify that he was disenfranchised and no voter’s card of any voter was tendered to show that he was refused voting permission either due to omission of his name in the register for any other reason. All these are vital pieces of evidence that the petitioner should have adduced in proving the alleged disparity, omission of voters’ name or inclusion of foreign or strange names in the register as claimed by the petitioner. More importantly is the failure of the appellant to tender the register to establish his complaint. In that regard, I think the tribunal’s resolve to presume under Section 149(d) of the Evidence Act that the petitioner/appellant chooses to withhold the register because it might be unfavourable to him, cannot be assailed or disturbed. It is trite law, that onus of proof always rests on a party who would fail if no evidence at all or no more evidence as the case may be, is given on either side. The time honoured maxim or adage that ‘He who asserts must prove’ is very much relevant and applicable in our law of evidence. See Awolowo v. Shagari (1979) 6-9 SC 51; Hule vs. INEC (1999) 4 NWLR 360.
There is no gainsaying that voters’ register is sine qua nom in proving pica of electoral malpractice. I note that the petitioner/appellant pleaded the extracts register but failed to tender it. Even if the respondents especially INEC staff failed to produce it nothing prevents him from tendering the secondary evidence of same. That is the purport of issuing Notice to an adverse party to produce a document sought to be used by the issuer of such Notice to Produce. That had not been done by the petitioner/appellant hence the trial tribunal rightly invoked the provisions of Section 149(d) of the Evidence Act against him. See AD vs. Fayose (2005) 10 NWLR (Pt. 932) 151. It is the duty of the petitioner/appellant and certainly not that of the respondent to produce voters’ register to back up evidence of witnesses. See Haruna vs. Modibbo (2004) 16 NWLR (Pt. 900) 487 al 878. Thus, on this point, I endorse the finding of the tribunal that the appellant did not prove the allegations of disparities in the register and alleged inclusion of foreign names therein or omission of voters names as he claimed.
Another allegation made by the petitioner/appellant relates to inadequacies of ballot papers and other election materials in more than half of the polling booths in the constituency where INEC staff appeared and that polls did not hold in most polling units. It was submitted by the appellant that inadequate election materials were supplied by the 5th respondent’s officials. He also submitted that elections did not hold in most polling stations due to absence of register. These lapses according to the petitioner/appellant, arose as a result of late arrival of materials delay of conduct of election for up to 8 hours; short supply of ballot papers and non-supply of result sheets. To meet the appellant on these allegations, the learned counsel for the 1st respondent submitted that the appellant who has the onus to prove them failed to do so. He said all the witnesses of the petitioner who testified on this, alleged that there was delay in the arrival of the materials was only four hours and not eight hours. He further argued that despite the alleged late arrival of the materials, the petitioner’s witnesses testified to the effect that election did take place in the polling units on that day.
The learned counsel for 2nd to 5th respondent also submitted that the petitioner failed to prove these allegations of non-compliance with provisions of the Electoral Act. He said elections could only be nullified upon cogent proof by the petitioner/appellant of substantial non-compliance or breach of the provisions of the Act and that the said non-compliance had affected the result of the election. He cited and relied on Anewdo vs. Audu and Ors. (1999) 4 NWLR (Pt. 600) 530 at 547; Haruna vs. Modibhlu (supra), Aghaje vs. Fashola (2006) 6 NWLR (Pt. 10112) 90 at 134; Edonkunoh vs. Mutu & Ors. (1999) 9 NWLR (Pt. 1620) 633 at 653; Awolowo vs. Shagari (supra); Itule vs. INEC (1999) 4 NWLR (Pt. 59) 360; Akinjosile vs. Jose (1960) SCNLR 47; Ajandi vs. Ajibola (2004) 16 NWLR (Pt. 898) 91; Oroyom V. Egari (1999) 5 NWLR (Pt. 603) 416 at 425.
From the testimonies of the witnesses called by the petitioner including the petitioner himself as borne out by the record of proceedings the material for the election arrived at various polling stations, at around 2 p.m. of course it will be inconceivable to expect the materials for the election to arrive at all the 86 polling units in the constituency at the same time. On the issue of non-accreditation of voters, the petitioner did not call any witness to show that any voter was accredited but not allowed to vote or could not vote due to the late commencement of the election or late arrival of materials. In fact no voter was called to show his card having his voter’s card marked but not allowed to vote due to late conduct of the election by the appropriate body. Even if evidence of late arrival of material is shown in this instant case, there was no voters’ register produced in evidence to show that election did not take place at all. In that case, the late arrival of such materials or late conduct of the election cannot be a valid ground to nullify the election. See Nnachi vs. Ibom (2004) 16 NWLR (Pt. 900) 614 at 635/636. In that regard, I do not see how the tribunal’s finding can be disturbed when it remarked thus:
“In the case at hand the petitioner has not by evidence shown this tribunal how many polling units were affected by lateness of arrival of materials.
There is nothing to show that the result would have been different had the materials arrived earlier in the unstated polling units. There is nothing to show that any voter was disenfranchised by the lateness talkless of the number being substantial enough to affect the result of the election. Indeed, no attempt was made to link late arrival of the materials to the scores of the parties.”
Again on the alleged refusal of voters to vote due to absence of result sheets, the petitioner testified that result sheets were not supplied and that ballot papers were insufficient which led to voters to leave out of frustration. He, the petitioner, did not call any polling agent to testify that the result sheets were actually among the materials not supplied totally or that they were insufficiently supplied or about the certification at the polling units. These allegations were also not backed by any of the depositions made by the nine witnesses called by the petitioner. It can therefore be said that having failed to adduce any evidence to support the allegations of insufficient supply of ballot papers and result sheets such complaints can be deemed to have been abandoned. See: NAS Ltd. vs. UBA Plc (2005) 1 NWLR (Pt. 945) 421 at 435.
The petitioner/appellant also alleged that there was no collation of result at all levels and also that there was no publication of result as required by the provisions of the Act. Here also, none of the nine witnesses called by the petitioner made depositions to that effect or testified in court in that regard. The law is trite that any averments or plea not supported by evidence is deemed to have been abandoned, See FCDA vs. Nails (1990) 3 NWLR (Pt. 138) 23,. Hutchfull vs. Biney (1971) 1 All NLR 268; UDC vs. Ladipo (1971) 1 All NLR 102,. Imere vs. Robinson (1979) 3 – 4 SC 1 at 9/10. Even with regard to issue of the nullification of result, the appellant in Paragraph 4 of his petition averred that the results of the election was published by INEC in its website from which he down loaded same.
As i posited above, the allegation made by the petitioner is that there was non-compliance with the provisions of the Electoral Act on the part of the respondents and for that he urged the tribunal to nullify the election.
It is settled law, that where a petitioner alleges in his petition any misconduct or non-compliance, he has the onus to prove that the non-compliance alleged was substantial and that such non-compliance had affected the results. See Bashir vs. Same (1992) 4 NWLR (Pt.236) 491; Imiere vs. Salami & Ors (1989) 2 NEPLR 131. I must also add here that where a petitioner alleges a particular non-compliance, he must satisfy the court/tribunal that the non-compliance was substantial and it had affected the result of the election. This is based on the principle of law of evidence that he who asserts has duty to prove what he asserts. See Kundu vs. Aliyu (1999) 3 NWLR (Pt. 231) 615 at 634; See also Agode vs. Emenato (1999) 8 NWLR (Pt. 615 – 407; Buhari vs. Obasanjo (Supra); Ibrahim vs. Shagari (198.1) 2 SCNLR 176.
In the instant case, all the petitioner succeeded in doing was to make a catalogue of allegations/complaints without supporting them with credible evidence and in some cases without even adducing any evidence at all. Even where he led evidence in an attempt to prove his allegations, he did not go further to show how the results of the election were affected or to show that the non-compliance was/were substantial. Again, some of the allegations he leveled on the respondents bordered on mere irregularities which could be waived or ignored in the interest of justice bearing in mind, that the body organizing elections is manned by human beings who are usually bound to make mistakes here and there.
It is my candid view, that the trial tribunal had duly considered and evaluated the evidence adduced by both parties to the petition before it arrive at its decision on the allegation of non-compliance. As an appellate court therefore, it is not our function to interfere with or disturb the finding of a trial tribunal in the absence of evidence that it acted in error in its evaluation of facts and evidence adduced before it or that there was error in such findings. See Ojukwu v. Obasanjo (2004) 11 NWLR (Pt. 886) 169) at 214.
It is on this premise that I resolve the first issue against the appellant and in favour of the respondent.
The point in contention In the second issue for determination is whether the trial tribunal was correct in refusing to strike out and expunge the evidence of the respondents in their statements on oath. This urge on the tribunal stems from the provisions of the Practice Directions issued in May 2007 by the Hon. President of the Court of Appeal. By Paragraph I of the Amended Practice Directions, a petitioner is allowed the use of coding of names of his witnesses whereas under Paragraph 2, the respondent is not allowed or is in fact prohibited from use of pseudonyms or coded names in the names of his proposed witnesses. The petitioner at the trial urged the tribunal to strike out the respondents’ witnesses’ statements on oath filed by the respondents wherein pseudonyms, codes and alphabets were used in their respective Replies. The tribunal rejected that urge by the petitioner and refused to strike out the statements on oath or expunge them, holding that, to do so would amount to shutting out the respondents and preventing them from ventilating their cases and that to do so would also deny it (the tribunal) the opportunity of hearing the petition on the merit and such could lead to denying justice to the respondent by not giving them fair hearing.
It is also the view of the trial tribunal that by using alphabets and pseudonyms and codes in the statement on oath of some of their witnesses, the learned counsel acted on the mistaken belief that the Practice Directions made in May 2007 by this Court’s President affected both Paragraphs 1 and 2 thereof. In other words, the learned respondent’s counsel thought that the use of codes, alphabets or pseudonyms was not applicable to the petitioner alone.
It is the submission of the appellant’s counsel in his brief of argument, that by the provision of Paragraph 2 of Election Tribunal Practice Direction 2007, the respondents Reply shall be supported with written statement on oath. He added that since the Directions did not provide a format of the form of the statement on oath, recourse should be had to the provisions of Section 90(b) of the Evidence Act which provides that Statement on oath should contain the name, trade or profession and nationality of the deponent. He said respondent’s witnesses statements on oath were liable to be struck out. He also argued that the provisions of Paragraph 2 of Practice Directions 2007 should not be extended to apply to the respondents’ witnesses as done by the tribunal.
The learned appellant counsel also argued that where the words of statute are plain, clear and unambiguous as in the instant provisions they should be given their ordinary, natural and literal meaning. See Awuse vs. Odili (2004) 8 NWLR (Pt. 494) 494; Okodugho vs. Isei (2005) 2 FWLR (Pt.265) 755; Iruobe vs. Oni & Ors. (1989) 2 NEPLR 101; Action Congress & Anor vs. INEC (2007) 12 NWLR (Pt. 1048) 220 at 318. The learned counsel further commended the rule of interpretation that what is stated in a statute excludes that which is not stated i.e. the maxim “expression issus est exclusio afterions”. He also cited the case of Obi-Odu liS. Duke (2006) 21 WRN 156. He said Paragraph 2 of the Directions 2007 has clear wordings prohibiting the respondent in election petition from using codes, pseudonym, abbreviations or fake names in place of the witnesses’ real or
actual names and such cannot be impliedly included. He also argued that it is not the function of a judge to amend or rewrite a statute as that is exclusively within the precincts of the duties of the legislature. See Okuntagba vs. Egbe (1965) 1 All NLR 65 and Uzodinmu vs. Udenwa (2004) 1 NWLR (Pt 854) 317. He also submitted that even if the provisions of Paragraph 2 of the Directions is extended to cover or apply to use of pseudonyms in the respondent’s witnesses, nothing precluded the respondents from providing the residential address, business, profession and nationality of the witnesses in line with the provision of Section 90(b) of the Evidence Act. He then urged this court to hold that the trial tribunal is in error by not striking out the statements on oath or the respondents’ witnesses for being offensive to the provisions of Paragraph 2 of the Practice Direction 2007.
The 1st respondent’s counsel while responding to the appellants counsel’s submissions, argued that the amendment to the Practice Directions took effect from 11/5/2007, that is to say, barely four days to the expiration of the deadline for filing petitions into State House of Assembly election (such as the election being challenged by the petitioner at the trial tribunal.) He submitted that while attempting to interpret a provision of law or statute such provision should be read wholly and NOT in isolation, in order to determine and appreciate the intendment of the enactors of the legislation. See PDP vs. INEC (1999) 11 NWLR (Pt. 626) 200 at 242. He said where literal interpretation of a word or words used in a statute will lead to injustice, it is the duty of the court to consider the enactment as a whole in order to ascertain whether the language of the enactment is capable of any other fair interpretation or whether it may just be necessary or desirable to put a secondary meaning on such a language or even adopt a construction which is not quite strictly grammatical. See Ojukwu v Obasanjo (2004) 4 WEN 72 at 106. The learned counsel further argued that considering the antecedents of the amendment of the Directions, the principle of literal interpretation will mean that petitioner’s witnesses are given protection while those of the respondents are denied such protection and such, according to the learned 1st respondent’s counsel, would amount to greater injustice. He said that was what the trial tribunal ventured to avoid when it held that to restrict the interpretation of Practice Directions to be meant to protect the petitioner’s witnesses only will be against the spirit of the decision of Abubakar vs. Yar’Adua (supra) and it would lead to absurdity and a denial of the respondents’ right of fair hearing.
The learned counsel for the 1st respondent also contended that the statements on oath of witnesses are not affidavits as provided by the Evidence Act. Expatiating on this later submissions, the learned counsel argued that under the provisions of Section 86, 87, 88 and 89 of the Evidence Act shall amount to statement of facts and circumstances of a witness wherein he deposed either his own personal knowledge or from information which he believes to be true and should contain no extraneous matters by way of objection, legal argument or conclusion. Statement on oath on the other hand, allows and encourages statement of facts and circumstance which a witness deposes to, and it admits his personal knowledge or not. It could unlike affidavit, contain extraneous matters, objections, prayer, legal arguments and conclusion, hence are not governed by law of evidence (or provisions of Section 86, 87, and 80 of Evidence Act) as non-compliance with such provisions could render them defective or invalid. He added that even if statement on oath arc regarded as same with affidavit, he argued that the omission of names, addresses and occupation of the witnesses of the respondents, would amount mere to defect in form and not in substance, vide Section 90(b) of the Evidence Act, which could be cured by resorting to the provisions of Section 84 of the Evidence Act. See: Section 84 of Evidence Act; Federal Board of Inland Revenue vs. Babaoye (1974) 1 NMLR 136, Abiodun vs. C.J. Kwara State (2007) NWLR (Pt.1065) at 109 at 155 G – H; Abubakar vs. YarAdua (Supra); Haruna vs. Modibbo (supra). In his response, the learned counsel for the 2nd to 5th respondents submitted that the trial tribunal was correct when it refused to strike out the statements on oath of the respondents witnesses for non-compliance with the provisions of Paragraph 2 of the Practice Direction as the appellant/petitioner failed to show any injustice or miscarriage of justice he suffered by the use of coded names by the respondents. He also did not show that he suffered any breach of his right of fair hearing by allowing the respondents’ witnesses to adopt their ‘written deposition on oath, By its so holding, according to the learned counsel the tribunal is simply refusing to adhere strictly to technicalities, It was also contended on behalf of the 2nd to 5th respondents that the non-compliance with Paragraph 2 of the amended Practice Directions were simply a defect in form and not in substance which can be allowable under the provisions of Section 90 of evidence Act and such defect or irregularity did not mislead the petitioner/appellant al all. He concluded his arguments on this issue by submitting that Practice Directions made by the President of this Court was made and used in aid of justice and not to defeat justice or to occasion or cause injustice to the parties adding that, the refusal by the tribunal to strike out the respondents witnesses statements on oath do not and indeed could not have resulted in injustice to the petitioner/appellant. He finally urged that this issue be resolved in his favour. He also cited and relied on the decisions of Abubakar vs. YarAdua (2008) 4 NWLR (Pt. 1078) 465 at 503, 510, 571, 572 & 575; Awuse vs. Odili (2003) 18 NWLR (Pt.952)572; Okulugbo vs Isei (mpra); Abiodu vs. C.J Kwara State (2007) 18 NWLR (Pt.1065) 109 at 155.
As I said above, this issue revolves on the interpretation of Paragraph 2 of the Amended Practice Direction issued by the Hon. President of the Court of Appeal in May 2007 by the trial tribunal. As the name implies. A Practice Direction is simply a written explanation of how proceedings in court would be conducted in a particular area of law in a particular law court. There is no gainsaying that Practice Directions have the force of law as do the rules of court. In fact the rules of court include Practice. See Abubakar VS. YarAdua (Supra) at 511; Owuru vs. Awuse (2004) All FWLR (Pt.211) 1429. In fact a plethora of authorities of both this court and the apex court which emphasized on the importance and force of Practice Directions and that non-compliance with the provisions of such Directions could result in serious consequence or sanction against the party that refused to comply with them or arc in breach of their provisions. See Okereke vs. Yar’Adua (Supra) Haruna vs. Modibbo (Supra); Ojugbele vs. Lamidi & Ors. (1999) 10 NWLR (Pt.621) 167; Buhari vs. INEC & Ors (Supra).
In the instant case, there is no dispute that among the parties herein that the two sets of respondents gave their depositions using alphabets, codes and/or pseudonyms. Evidence adduced in the proceedings showed that the respondents used the pseudonyms for the protection of their witnesses but the learned counsel for the petitioner/appellant insisted that the intention of the law makers was only to protect his witnesses alone even though the trial tribunal in its interpretation ruled otherwise.
It is the general principle of rule of interpretation that where words are clear and unequivocal, they should be given their natural, ordinary or grammatical meaning. My view is that there is a rider to that, in that if giving the words of the statute their natural or grammatical meaning would lead to ambiguity or injustice, resort could be made to internal aid within the statute or external aid outside if in order to resolve the ambiguity to avoid doing injustice. See Mobil Oil Nig. vs. R.B.R. (1997) 3 SC 53; Orji vs. FRN (2007) 13 NWLR (Pt.1050) 55. I am fortified in this view by the remarks of Onu, JSC in Ojukwu vs. Obasanjo (2004) 40 WRN; where the learned jurist had this to say at page 106:
“Thus where literal interpretation of word or words used in any enactment will result in an absurdity or injustice, it will be the duty of the court to consider the enactment as a whole with a view to ascertain whether the language of the enactment is capable of any other fair interpretation or whether it may not be desirable to put a secondary meaning on such a language or even to adopt a construction which is not quite strictly grammatical”
See also PDP .vs. NEC (1999) 11 NWLR (Pt. 626) 200 at 242.
Now coming to the provisions of Paragraph 2 of the amended Practice Directions 2007, it would seem to me that by such provision it is only the witnesses of the respondents who are not allowed to use codes, pseudonyms or alphabets. The question to be asked is “Could it be proper justice for the enactment to treat witnesses of parties differently?” I do not think so. An enactment or provision of law should afford parties with same or similar treatment. I do not think that it is only the petitioner’s witnesses alone that require protection if “protection” is the purport of the said provisions. The respondent’s witnesses also equally require such protection too, in view of the often volatile nature of election proceedings/or process especially in our country where as at now, our nascent democratic setting which is still in a “toddler” stage. It is beyond dispute that if the tribunal had given strict or literal interpretation to Paragraph 2, it would lead to a heavy consequence of striking out the statements on oath of almost all the witnesses for the two sets of respondcnts. That, as a corollary, will end the case of the respondents since they could no longer ventilate their cases/defence to the petition. You will then end up denying them of their right to fair hearing as enshrined and entrenched in our constitution simply on the alter of technicalities. That, to my mind, will certainly lead to occasioning of gross injustice on them due simply to a pardonable mistake of their learned counsel. I think courts or tribunals should always frown at that and distance themselves from so doing or encouraging that, since nowadays, all courts have adopted the commendable approach of doing substantial justice and not to tie themselves to mere technicalities especially where doing so, will result in injustice or defeat of the course of justice. This is the present trend now. The courts are now enjoined to avoid giving literal meaning to statutes where doing so would lead to absurdity or ambiguity or will result in occasioning injustice to the party or parties in matters before them. I am further fortified in this holding by the Supreme Court in its recent decision of Abubakar vs. YarAdua (supra) where it stated thus on page 24 as below: “It is not every non-compliance with the rules of court that will vitiate proceedings or do harm to the party in default. As a matter of our adjectival law, and by the state of the non-compliance to rules, the courts will regard certain acts or conduct
of noncompliance as mere irregularity which could be waived in the interest of justice.
The state of the law is more in favour of forgiving noncompliance with rules of court particularly when such noncompliance if waived will be in the interest of justice.”
The apex court went further to hold that the basic principle of law is that it is the object of the court to decide the rights of the parties and not to punish them for mistakes they make in the litigation process particularly when the mistakes are real mistakes. It further remarked that rules of court which include Practice Directions are not intended to be ridiculously applied to a slavish point particularly if such an application will do injustice in the case.
Again in the same report, the apex court further held as follows:
“The greatest barometer as far as the public is concerned is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice some harm is done to some procedural rules which hurt the rules such as Paragraph 2 of the Practice Directions, the court should be happy that it took that line of action in pursuance of justice. This court cannot myopically or blindly follow the Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day come not.”
Similarly in a recent English case of Pepper vs. Hart (1993) AC 593, Lord Griffiths stated thus:-
“The days have long passed when the court adopted a strict constructionist view of interpretation which required to adopt the literal meaning of the language. The Court now adopts a purposive approach which seeks to give effect to the tune and purpose of legislation and is prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”
Now considering the historical antecedent that led to the amendment, the timing of the amendment which was just 4 days before the stipulated expiry date of filing petitions in State House of Assembly, I think the learned counsel for the respondents could be said to have made real or genuine blunder in the way they prepared their witnesses’ statements on oath. It is only natural that mistakes or blunders must be made or must take place in litigation process since blunders are sometimes inevitable. It will not be a good and sound justice to punish a party on the sins or genuinely made mistakes of his counsel, especially when such sanction would be at the expenses of hearing the case on the merit. It is always preferable to allow both parties to a case to ventilate their case and give balanced judgment on it after hearing the case on the merit rather than to give judgment merely on the evidence of one party alone. In the instant case, the use of code, pseudonyms, or alphabets in the respondents’ witnesses’ statements on oath are mere mistakes on form and not substance and are, to my mind, forgivable in the spirit of doing justice and adherence to the time honour principle of fair hearing as enshrined in our constitution. I do not deem it necessary to venture into the discussion on difference between affidavit and statements on oaths or their contents or what each should entail as in my candid view, such will be otiose and irrelevant here. Thus, considering the principles enunciated on the decided authorities referred to supra, I am inclined to say that the trial tribunal’s resolve not to strike out the statements on oath of the respondents’ witnesses to avoid occasioning injustice cannot he assailed. I also feel that striking them out will defeat the spirit of the principle of fair hearing and result in unquantifiable or gross injustice. I agree entirely with the tribunal’s conclusion and its stand on refusing to strike out the respondents’ witnesses’ statements on oath.
In the present circumstance therefore, I will not hesitate to also resolve this second issue against the appellant.
I think, I must re-emphasize here that where a petitioner chooses to make allegation of non-compliance with the Electoral Act as the ground of his petition, he is duty bound to prove through credible, cogent and compelling evidence that the alleged non-compliance was substantial and that it had or could in fact affect the result of the election to his disadvantage. In the instant case, appellant neither led credible evidence to prove substantial non-compliance nor showed through such evidence that the alleged non-compliance had actually affected the result of the election to his disfavour.
In the result, the appeal is adjudged by me as lacking in merit. It fails and is accordingly dismissed the decision/judgment of the Anambra State Governorship and Legislative Houses Election Tribunal delivered on the 22nd day of February 2008 is hereby affirmed. I will not make any order as to costs, so each party should bear its/his own costs.
Other Citations: (2009)LCN/3438(CA)
