Dr. (Mrs.) Idayat Adebukola Adebusuyi V. The Independent National Electoral Commission (Inec) & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J. C. A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal which dismissed the appellant’s petition against the declaration of the 3rd Respondent as the winner of the election held on 21st April, 2007 for the Federal House of Representatives for the Ibadan South West/Ibadan North West Federal Constituency.

Briefly, the petitioner’s case was that she was the candidate of the Action Congress Political Party for the Ibadan South West/Ibadan North West Federal Constituency of the Federal House of Representatives at the election conducted by the 1st, 2nd, 4th and 5th Respondents on 21st April, 2007 while the 3rd Respondent was the candidate of the People’s Democratic Party and was declared the winner of the election. The appellant challenged the result of the election at the Oyo State Governorship and Legislative Houses Election Petition Tribunal on the following grounds:

“A. Corrupt practices and non-compliance with the Electoral Act 2006.

B. That the 3rd Respondent was not duly elected by majority of lawful votes cast at the election.”

At page 4 of the record of appeal, paragraph 10 of the petition reproduced sets out the Grounds upon which it is predicated as follows:-

“10. Your petitioner avers that the grounds upon which this petition are based are as follows:

A. CORRUPT PRACTICES AND NON-COMPLIANCE WITH THE ELECTORAL ACT 2006

Your Petitioner avers that the National Assembly Elections of 21st April 2007 was marred by corrupt practices and noncompliance with the Electoral Act 2006 as the actions were marred by failure of the 1st and 2nd Respondents to follow elections procedures correctly, incident of hijacking of ballot boxes, undue influence and intimidation of voters, stuffing of ballot boxes and alteration of official results forms.

B. THAT THE 3RD RESPONDENT WAS NOT DULY ELECTED BY MAJORITY OF LAWFUL VOTES CAST AT THE ELECTION

Your Petitioner avers that with respect to this ground that the result of the National Assembly Elections held on the 21st April, 2007 was fraught with fraud and falsification of result. The Petitioner will lead evidence to prove that figures were merely allocated to favour the 3rd Respondent. The Petitioner will rely on all the Voters Registers in the 2 local government areas, in all the wards and in all the polling units that makes up Ibadan South West/North West Federal Constituency of Oyo State of Nigeria.”

The petitioner filed her petition of 12 paragraphs and attached list of witnesses, list of Exhibits and deposition of witnesses, (see pages 1-34 of the record of appeal), called 8 witnesses and tendered 34 exhibits. The Petitioner also filed an 8 paragraph reply to the reply of the 1st, 2nd, 4th and 5th Respondents’ reply to the petition (see pages 144-157 of the record of Appeal) and. a 7 paragraph reply to the 3rd Respondent’s Reply to the petition (evidence also at pages 101-106 of the same record of Appeal).

In summary, the petitioner’s case on the one hand was that:

“(i) The guidelines and materials for the conduct of the 2 local governments that make up the Federal Constituency were exactly the same.

(ii) That the conduct of the election in the Ibadan North West Local Government was substantially in compliance with the Electoral Act 2006, while the conduct of the election in the Ibadan South West Local Government was marred by corrupt practices and non-compliance with the Electoral Act 2006.

(iii) That the specific acts of non-compliance with the Electoral Act 2006 are as follows:

a. The Manual Voters Register was used as against the authentic electronic voters register;

b. That there was no collation of results of Ibadan South West Local Government; and

c. That the results of the election were falsified, written and declared before the elections were concluded.”

That (i)-(iii) above substantially affected the result of the election and consequently, the 3rd Respondent did not win the election by majority of lawful votes cast at the election. Specifically, the relevant pleadings of the appellant as petitioner at the court below is contained at pages 2 to 9 of the record.

On their parts, relevant pleadings of the two sets of the Respondents are contained at pages 54 to 59 of the record (3rd Respondent) and pages 132 to 136 for that of the 1st, 2nd, 4th and 5th Respondents respectively.

On the other hand the 1st, 2nd, 4th and 5th Respondents’ case in summary was:

“(i) That the conduct of the election was substantially in compliance with the Electoral Act 2006;

(ii) That the 1st Respondent was statutorily empowered to use any of the 3 types of voters register for the conduct of the election;

(iii) That the 3rd Respondent was the winner of the election by a majority of lawful votes cast;

(iv) That the result of the election was not falsified.”

Also the summary of the case of the 3rd Respondent’s response to the petition was in line with that of the 1st, 2nd, 4th & 5th Respondents as follows:

“(i) That she was rightly and lawfully returned as the winner of the election with the majority of lawful votes cast at the election.

(ii) That the election was free and fair and devoid of corrupt practices.

(iii) That the result of the election was not falsified or manipulated in favour of the 3rd Respondent.”

The reliefs being sought by the Petitioner are contained at pages 8 of the record as follows:

“a. It be determined that the 3rd Respondent did not win the majority of lawful and validly cast votes in the National Assembly Election for the Ibadan South West/North West Federal Constituency of Oyo State of Nigeria held on 21st April 2007 having scored less lawful votes than the petitioner.

b. It be determined that the petitioner won the 21st April National Assembly Election for the Ibadan South West/North West Federal Constituency of Oyo State of Nigeria and ought to have been returned as the elected representative for the Ibadan South West/North West Federal Constituency of Oyo State of Nigeria.

c. It be declared that the 1st and 2nd Respondents were partial and biased in favour of the 3rd Respondent and thereby failed to conduct a fair and credible election.

d. An order compelling the 1st and 2nd Respondents to declare the petitioner as the winner of the 21st April 2007 National Assembly Election for the Ibadan South West/North West Federal Constituency of Oyo State of Nigeria and return her as duly elected,

e. An order compelling the 1st and 2nd Respondents to issue the Petitioner the Certificate of returns as the winner of the National Assembly Election for Ibadan South West/North West Federal Constituency of Oyo State of Nigeria.

ALTERNATIVELY:

f. An order nullifying the national Assembly Elections for the Ibadan south West/North West Federal Constituency of Oyo State of Nigeria including the returns made thereto and order fresh election.

g. An order that the petitioner may ask for such further or other orders as the tribunal may deem fit to make in the circumstances,”

Consequent to the trial of the petition the lower tribunal on the 20th November, 2007 dismissed the Appellant’s petition and upheld the return of the 3rd Respondent as the winner of the election under reference.

However, being dissatisfied with the said judgment, the appellant therefore filed a notice of appeal at pages 357-363 of the record containing six grounds of appeal. It was dated 8th December and filed on the 10th December, 2007. The said notice was, pursuant to the order of this court, amended and deemed properly filed and served on 29th September, 2009.

In accordance with the rules of court, the appellant’s brief dated 14th March was filed within the time permitted by law, on the 17th March, 2008.

On the 29th September, 2009, at the hearing of the appeal and with counsel to all parties present in Court, the respective briefs of arguments were adopted and relied upon for the arguments of the appeal. In other words, Mr. Akeem Agbaje in company of Mr. Kingsley Ihedoro represented the appellant and after having introduced the appeal hence adopted and relied on the said appellant’s brief under reference supra. The learned counsel thereupon urged that the appeal be allowed in terms of the reliefs sought.

Similarly and in the same vein the learned counsel Messers Omoniyi Faokunla leading a team of counsel and representing 1st, 2nd, 4th and 5th Respondents and also Mr. W.A. Olajide appearing for the 3rd Respondent adopted and relied on the briefs filed on behalf of their clients respectively. While the joint brief by the 1st, 2nd, 4th and 5th respondents was dated and filed 28th March, 2008 that of the 3rd respondent was dated 27th March and filed 28th March 2008. Both learned counsel cited additional authorities to augment their briefs of arguments and finally urged in favour of the dismissal of the appeal, and affirm the judgment of the lower trial Tribunal with substantial costs against the appellant.

Arising from the appellant’s six grounds of appeal, three issues were distilled as follows:

“1. Whether it was necessary to join every election official whose conduct is complained of in the petition as a party to the petition in view of the provisions of S. 144(2) of the Electoral Act 2006.

2. Whether the 1st, 2nd and 3rd Respondents can use several types of voters register for the conduct of the election apart from that provided under the Electoral Act 2006.
3. Whether the petitioner had proved substantial non-compliance with the Electoral Act 2006 in respect of the election into the Federal house of Representatives for the Ibadan South West/Ibadan North West Federal Constituency.”

On behalf of the 1st, 2nd, 4th & 5th Respondents the two issues formulated from the appellant’s grounds of appeal are:

“1. Whether it was necessary to join every election official who was alleged to have committed a criminal offence in the conduct of an election in the petition as a party to the petition in view of the provisions of S.144(2) of the Electoral Act 2006.

2. Whether the petitioner on the state of pleading and evidence has shown or proved any act(s) of corrupt practices and or non-compliance with the Electoral Act, 2006 and or any substantial non-compliance which has substantially affected the result of the election to the Federal House of Representatives for the Ibadan South West/Ibadan North West Federal Constituency.”

Also and on behalf of the 3rd Respondent, three issues were advanced and same which are identical and replica of those formulated by the appellant seriatim. I do not consider it necessary to reproduce an obvious repetition therefore.

The appellant’s first issue posed a question as to whether it was Necessary to join every election official whose conduct is complained of in the petition as a party to the petition in view of the provisions of S. 144(2) of the Electoral Act 2006. The appellant while advancing arguments on the said issue submitted the erroneous interpretation of S. 144(2) of the Electoral Act 2006 by the Tribunal. In other words, that it ought to have considered the distinction between the said provisions vis-a-vis S.133(2) of the Electoral Act 2002 upon which the judicial authorities were relied upon by the tribunal in reaching its decision. That the interpretation of the proviso to section 144(2) of the Act had not been taken into account. That the authorities relied upon were not dealing with sections identical to S. 144(2) of the Electoral Act 2006. A number of authorities cited included Nwobodo v. Onoh (1984) All NLR page 1, a Supreme Court decision wherein their Lordships held that where provision of a section are unique previous decisions relied on cannot assist in its construction. Cited further was the case of Buhari v. Obasanjo (2005) All FWLR (pt. 273) page 1 at 97.

Also relied upon by the appellant’s learned counsel was paragraph 47(2) of the Schedule to the Electoral Act 2006 wherein he submitted the provision in the Schedule ought to be construed in the light of what is enacted in the Act and which cannot override the body of the Statute as was pronounced in the case of Oputeh v. Ischida (1993) 3 NWLR (Pt.279) p. 34 at 58. That the said provision of the Schedule cannot also take away the exception created and permitted by S. 144(2) of the main body of the Act. The case of Awuse v. Odili (2004) All FWLR (Pt. 212) page 1611 was cited to buttress the contention. Counsel further submitted that the learned Tribunal was in error to have applied the provision of S.36 of the Constitution of the Federal Republic of Nigeria 1999. That the Tribunal did not avert its mind to the fact that it must itself comply with the provisions of the Statute in determining the necessary parties to the petition. That in the authority of the case of Biyu v. Ibrahim (2006) 8 NWLR (Pt. 981) 1 relied upon by the learned Tribunal, the Court in that case was merely giving effect to the provisions of the Statute, which required that they must be made a party; hence S.36 of the Constitution having been brought into relevance. A further authority cited was the case of INEC v. Action congress CA/J/EP/Gov/419/2007 (unreported at page 59) delivered on Tuesday 26th day of February 2008. In that case, the principle of agency was applied to election petition and the effect of the proviso in S. 144(2) of the Electoral Act, 2006. That the allegations were against the 1st, 2nd,4th & 5th Respondents, though some of them occurred at the polling units. That there were however evidence of a deliberate act of non-compliance with the Electoral Act by them. That the effect of the finding of the Tribunal on this issue was to avoid considering the abundant evidence of corrupt practices and electoral fraud by the 1st, 2nd, 4th and 5th Respondents. Learned counsel urged that the issue be resolved in favour of the appellant.

In response to the said issue, the 1st, 2nd, 4th and 5th respondents’ counsel submitted that the Tribunal had thoroughly considered the enabling statute i.e. section 144(2) of the Electoral Act 2006 and its proviso under which the election was conducted in terms of the necessary parties. That the conclusion and findings of the Tribunal is unimpeachable and that the proviso cannot defeat, cancel or repeal the mandatory provisions of section 144(2) of the Electoral Act. An authority cited in support is FIB Plc v. Pegasus Trading Office (2004) 11 WRN p. 93 at 106 per Uwaifo JSC; That in the commission of a crime, the law of agency cannot apply to exclude the perpetrator of the crime who is an agent and to proceed against the principal who was not shown to have committed any offence.

Learned counsel cited section 7 of the Criminal Code Laws of the Federation of Nigeria was cited in support. A further authority is the case of Otunba Adedipo Dina v. Otunba Justus O. Daniel & others 2009 All FWLR Pt. 480 p. 632 at 652. That with the allegations being criminal in nature proof of same can only be discharged if those who are alleged as perpetrators are parties. A number of further decided authorities which were advanced to buttress the respondents’ case are: Chianson v. Igba (2004) All FWLR Pt. 224 page 1997 at 2025; Egolum v. Obasanjo and ors (1999) 5 5CNJ at 125-126; Barrister Paul Ubom & 1 or v. Nseyen A. Anaka (1999) 6 NWLR (Pt. 605) P.99 at 108. That on the authority of Savannah Bank (Nig.) Ltd. v. Ajilo (2001) FWLR (Pt. 75) P. 513 at 551 it was held on the principles of interpretation of Statutes that the clauses or sections of the Act or Statute should be construed together. The learned counsel urged that the findings of the Honourable Tribunal in striking out the offending paragraphs should be upheld.

On behalf of the 3rd Respondent, her learned counsel also submitted the arguments alongside that advanced by the counsel to the 1st, 2nd, 4th & 5th respondents and cited an additional authority of the case of Olafemi v. Ayo (2009) All FWLR Pt. 452 P111 at 1158-1159 wherein a complaint against the conduct of an electoral officer must subject such officer to be joined as a necessary party. That the affected paragraphs which excluded the offending officers complained against, cannot be entertained as the court lacks the required jurisdiction. The case cited in point is the Supreme Court decision in the case of Buhari v. Yusuf (2003J FWLR (Pt. 174) P. 329 at 369-370. That the emphasis being placed on the doctrine of agency by the appellant cannot avail her as same cannot and would not relieve an offender (agent) of his/her liability. That the authorities sought to rely upon by the appellant’s counsel are not also applicable to the issue in contention. Learned counsel urged that the issue be resolved against the appellant and in favour of the respondent.

In treating the appellant’s 1st issue, it would be pertinent to reproduce the learned Tribunal’s findings in its judgment at pages 331 to 332 of the record of appeal wherein it held and said:

“This tribunal does not agree with submissions of learned counsel to the petitioner on the effect of the proviso to section 144(2) of the Electoral Act, 2006 as that proviso cannot be interpreted to defeat the mandatory provisions of Section 144(2) of the Electoral Act and paragraph 47(1) of the First Schedule to the Electoral Act, 2006. In addition a person against whom there are criminal allegations must be accorded his fundamental right to fair hearing as provided under section 36 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 and the only way of giving such a person a fair hearing is by making him a party to the proceedings where the allegations are raised and no statute can derogate from this constitutional right to fair hearing.”

Also at page 342 of the said record of appeal, the learned Tribunal proceeded and said:

“Since the allegation is criminal in nature, it is mandatory that such a presiding officer must be joined as a respondent in the petition. Any failure to so join the presiding officer in the petition makes the allegation and the paragraph containing same incompetent.”

The determining relevant and applicable statutes on the said issue predicates on the interpretation of the following sections 133(2) and 144(2) of the Electoral Act 2002 and 2006 respectively as well as paragraph 47(1) of the schedule to the Electoral Act 2006 and also section 36 of the Constitution of the Federal Republic of Nigeria 1999. The reproduction of the respective provisions is relevant:

5.133(2) of the Electoral Act 2002:

“The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”

S. 144(2) of the Electoral Act 2006 provides:

“The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petitioner complaints of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party. Provided that where such officer or person is shown to have acted as an agent of the Commission, his non joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”

(Underlining word is for emphasis.)

Paragraph 47(1) of the Schedule to the Electoral Act 2006:

“Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer,

Returning Officer or any other official of the Commission he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party, but an Electoral Officer, a Presiding Officer, Returning Officer or any official of the Commission shall not be at liberty to decline from opposing the petition except with the written consent of the Attorney-General of the Federation.”

As rightly submitted and argued by the learned appellant’s counsel, section 144(2) of the Electoral Act 2006 is undoubtedly unique and remarkably different from the similar provisions in previous electoral statutes by the inclusion of a proviso. Whether or not the learned Tribunal failed to appreciate the distinctive nature of the said provision and thus fell into an error, as submitted by the learned appellant’s counsel, is subject to the interpretation of the proviso as well as its effect thereof.

In placing much reliance on the proviso to section 144(2) of the Electoral Act, 2006 the learned appellant’s counsel emphatically argued that once INEC has been made a party to the petition, an election official whose conduct is complained of in the petition being an agent of INEC need not be joined in the petition.

The learned respondents’ counsel on their part for instance submitted at great extent in favour of the decision of the Tribunal in its interpretation of the proviso to section 144(2) and thus applauded the striking out of the affected paragraphs as it did. The counsel dwelt strenuously on the allegation contained in the said paragraphs as being criminal in nature and therefore requiring that the officers indicted ought to have been joined as parties to the petition.

It is trite and settled that from the general principle of law relating to criminal allegations, the standard of proof must be beyond reasonable doubts. Section 138(1) of the Evidence Act is in point. Plethora of authorities also avail in the support of the obvious, which is overshadowed by S. 36 of the Constitution of the Federal Republic of Nigeria wherein the principle of Audi Alteram Partem is sacrosanct, supreme, and which can neither be faulted nor derogated. The authorities cited by the respondents’ counsel in the cases of Egolum v. Obasanjo (supra), Buhari v. Yusuf (supra) and a host of others related are apt on the issue and thus confirming the position of section 36 of the Constitution. The question however is whether or not the said authorities are in fact and indeed applicable to the issue for consideration as it relates to the proviso to section 144(2) of the Electoral Act. It is of utmost significance to note that the said authorities under reference and greatly relied upon were decided before the Electoral Act 2006 came into effect. In other words, they must have been decided under the 2002 Act which did not have a similar proviso as it is under the 2006 Act. It follows therefore that as at the time their Lordships of the Supreme Court decided the authorities, they were not interpreting the 2006 provision as it relates to the proviso to section 144(2). The law under which those authorities were decided cannot now be imported to defeat the current and the existing applicable law. Those authorities, very relevant as they are, the circumstances and the law under which they were decided were completely different from the current situation. They do not therefore aid the case of the respondents.

It is settled law in the interpretation of Statute that the function of a proviso is to create an exception which but for the proviso would have been within. The case of NDIC v. Okem ENT. Ltd. (2004) All FWLR (Pt. 210) p. 1176 at 1235 for instance is relevant in point. Also in a similar related authority of the case of Erne v. The State (1964) NSCC Vol. 3 page 310, their Lordships of the apex court held that proviso is intended to cut down or qualify the supposed effect of failure to comply with requirement. Further still and in the case of Wilson v. A.G. Bendel State (1985) NSCC Vol. 16 (Pt. 1) P.191, it was held that where there exists a reasonable interpretation which will avoid the penalty in any particular case, the more lenient construction must be given.

The learned Tribunal in its judgment at pages 331 and 332 of the record of appeal, earlier reproduced in the course of this judgment placed reliance on paragraph 47(1) of the Schedule to the Electoral Act 2006 in the interpretation of section 144(2) of the Act. The authority in the case of Oputeh v. Ischida (supra} had at great extent dealt with construction and interpretation of statutes as well as the limitation of a schedule. At page 58 of the report for instance, Uwaifo, J.C.A. said:

“A Schedule to a Statute is regarded as forming part of the Statute. In Maxwell on Interpretation 12th Ed. Page 12, it is stated:

“Schedules to Statutes are as much part of an Act as any other, and may be used in construing provisions in the body of the Act. Similarly, provisions in a schedule will be construed in the light of what is enacted in the section.”

Also and in the same authority at page 69 of the report Achike JCA (as he then was and of a blessed memory said:

“It is a basic and fundamental rule of construction that where a word in a statute or legal document is plain, the Court is enjoined to give it its ordinary or popular meaning.”

Furthers till and at page 70 of the said report on the limitation of the use of schedules, the learned jurists said::

“Ordinarily, provisions set out in Schedules to enactments are distinct from the substantive sections, but for purpose of construing the statute the schedules may be useful and may be referred to in resolving construction problems in the sections of the statute. The only caveat is that on no account should provisions in the Schedules override those enacted in the body of the Statute.”

(Emphasis is mine.)

As rightly submitted by the learned appellant’s counsel therefore, the schedule is part of the act and used in construing provisions in the body of the Act. The provisions in the schedule will therefore be construed in the light of what is enacted in the Act and cannot override the body of the statute. The consequential effect therefore is that para. 47(1) of the Schedule is limited by its very nature and cannot take away the exception created and permitted by S. 144(2) which is the main body of the Act. This is because the Schedule is subject to the main Act. In the case of Awuse v. Odili (supra} the court in re-establishing the position more succinctly affirmatively pronounced that a Schedule cannot override the plain words of a statute; this is apt because in the event of any contradiction between the Schedule and the enacting clause, the latter prevails.

With all respect to the lower Tribunal, it was in grievous error when it relied on paragraph 47(1) of the Schedule to the Electoral Act 2006 in support of its decision.

It is pertinent to re-iterate that section 144(2) of the Electoral Act 2006 is unique and different from similar previous electoral statutes by the inclusion of a proviso. The learned tribunal, I hold, failed to appreciate this fact and as a consequence fell into the error of using decided authorities on similar sections in previous enactments to interpret a current statute. As far as the 2006 Electoral Act is concerned the 2002 Act no longer exists, especially in respect of the similar relating provisions. On the authority of the case of Nwobodo v. Onoh (supra), the apex court held that where provisions of a section are unique, previous decisions relied on cannot assist in its construction.

Deducing from the foregoing earlier authorities under reference, it goes without much ado to say that the basis for the consideration and determination of any election petition is primarily the enabling statute under which the election was conducted. The authorities relied upon by the learned Tribunal, needless to restate, were not dealing with sections identical to section 144(2) of the Electoral Act 2006.

Further still and by the learned Tribunal relying on S. 133(2) of the Electoral Act 2002 to construe S. 144(2) of the Act 2006 is an error which cannot be under-minded as it is substantial.

There is no rule which prescribes that an original provision in a statute can independently and simultaneously co-exist with the modified version and that in the event of a conflict between the two, the previous is preferred and the modification ignored. This was the principle laid down in the case of A.G. Anambra State v. A.G. Federation (1993) 6 NWLR (Pt.302) p. 292 at 713.

An example of such error is where at pages 331 and 333 of the record of appeal the learned Tribunal in its judgment relied heavily on the case of Biyu v. Ibrahim (supra). The decision was based on the provisions of section 133(2) and paragraph 47(2) of the 1st Schedule to the Electoral Act 2002.

I would wish to add further that by the coming into effect of the Electoral Act 2006, the previous Act to wit the Electoral Act 2002 was repealed. Section 16S of the existing Electoral Act 2006 is in evidence wherein sub-paragraph (a) to the said section is instructive. The word repeal had been defined at page 995 of the Oxford Advanced Learner’s Dictionary as “a law that is no longer valid.” The Electoral Act 2002 is extinct and dead. It is no longer valid and any decisions predicated thereon would bear no legal effect. The new Act did not preserve any aspect of the 2002 Act in the absence of any such express provision. The learned Tribunal was therefore bound to consider S. 144(2) of the Electoral Act 2006, by giving it its ordinary meaning and not to have read into it the meaning which rendered the proviso of non-effect or non-existent. Again the case of ALG. Anambra State v. A. G. Federation (supra) at page 732 serves to buttress the point.

In the result, the appellant succeeds on his issue 1 and same is resolved in his favour. In other words, in view of the provisions of section 144(2) especially the proviso thereof, I hold that the learned tribunal was grievously in error to have held that it was necessary to join every election official whose conduct is complained of in the petition as a party to the petition.

The appellant’s Issue 2 poses a question whether the 1st, 2nd and 3rd Respondents can use several types of Voters Register for the conduct of the election apart from that provided under the Electoral Act 2006.

Submitting on the said issue, the learned appellant’s counsel related promptly that by provision of S. 10(1), (2), (3) and (4) of the Electoral Act, 2006 there can only be a register of voters, though it may be in any format. Also that by the provision of S. 11(4) of the said Act, it is the register that is certified that should be used for the Election. That the learned Tribunal therefore erred in its finding that the 1st, 2nd, 4th and 5th respondents could use any Voters Register once it is certified; that the tribunal also erred in placing the burden of proof permanently on the appellant. The learned counsel made a graphic analysis to the pleadings of all parties and the evidence adduced thereon. Counsel submitted further and drew the attention of this Court to the evidence of the officials of the 1st and 2nd Respondents which he argued was contrary to their pleadings.

That the evidence of 1st Respondent’s witness I, is in consonance with the provision of the Electoral Act 2006 which stipulates that only one type of Voters Register should be certified and used for the conduct of the election. Furthermore that the attempt by the 1st, 2nd, 4th and 5th Respondents to contend in their pleadings that it could use any of 3 types of Voters Register was contradicted by both 1st Respondent’s witness I and 1st Respondent’s witness 3. That the provision of the Electoral Act 2006 clearly provided for only one type of Voters Register for the conduct of any election under the Electoral Act 2006. Reference was specifically drawn to Part III – National Register of Voters and Voters Registration. That by the use of the words ‘the’, ‘a’ and “register” used in the singular sense it signifies a particular type of register which alone should be used for the conduct of the election. Reference to substantiate was made to Collins English Dictionary. Learned counsel further submitted that by the use of the words in S. 10(1) “… in this Act referred to as the “Register of Voters ” is as close as will get to a definition. Further reference was made to Halsburys’ Laws of England 4th Edition Vol. 15 pg. 280, where the word “register” is said to be used in the singular sense. That the absence of inclusion of Voters Register amongst the definitions under Section 164 of the Electoral Act 2006 is because there is no ambiguity in S. 10 and S. 11 of the said Act. That in the result therefore the learned counsel urged this Court to resolve issue 2 in favour of the appellant.

Responding to the said issue 2, the learned counsel to the 1st, 2nd, 4th & 5th respondents submitted the absence of any findings by the learned Tribunal where it held that several types of Voters Registers were used for the conduct of the election apart from that provided under the Electoral Act, 2006.

Counsel submitted further that the Petitioner did not state or make a case in her evidence that Electronic Voters Register was the official and authentic Voters Register that should be used but which in this case was not used in Ibadan South West Local Government. Furthermore that the petitioner’s evidence is at variance with his pleadings and that the evidence should therefore go to no issue. Reference in support was made to the case of Kalgo v. Kalgo (1999) 6 NWLR (pt. 608) P. 639 at 646 and also Balami v. Bwala (1993) 1 NWLR(Pt. 267) pg. 51 at 68-69. That the petitioner must succeed on the strength of his own case on the authority of the case of Nwobodo v. Onoh (supra at page 135). Learned counsel further deliberated on the provision of part III of the Electoral Act 2006 at sections 10 to 25 and submitted that the Act did not mention which type of Voters Register is to be used but rather maintained consistently that there shall be a Register of Voters. The learned counsel therefore urged that the findings of the learned Tribunal on the use of the Voters Register in Ibadan South West Local Government Area should be upheld and also that the presumption of regularity is in favour of the Certified True Copy of the Voters Register tendered by the Petitioner as Exhibits PE 13 to PE 24, which were the official voter register for Ibadan South West Local Government.

That on the use of Manual Voters Register in Ibadan South West, counsel further submitted that the only credible evidence is for the Petitioner to tender the Voters Register and which could not be done by oral evidence.

On the question of Non-collation of Result and deliberate refusal to undertake constituency collation, learned counsel submitted further that the tendering of the electoral forms at the different level of collation raises a presumption of regularity that collation was done. Cited in support was the case of Agoda v. Enamuofor (1999) 8 NWLR (pt. 615) page 407 at 419. That the onus is also on the petitioner to adduce sufficient evidence of non-collation of result. The case in point is Nnaji v. Agbo (2004) 42 WRN 56 at 87.

On the issue also relating to Evaluation by the Tribunal, the learned counsel submitted that the honourable Tribunal properly evaluated the evidence of the parties. That it is trite that the function of accrediting one witness or set of witnesses and discrediting the other is that of the trial court which had the advantage of watching the witnesses testify. Cited to substantiate was the case of Odiba v. Muemue (1999) 10 NWLR (Pt. 622) pg. 174 at 184.On the use of Form EC8A (II) with the same serial number and falsification and pre-dating Result, counsel argued that by section 77 of the Electoral Act 2006, the Forms to be used for the conduct of the election shall be determined by the Commission. Also that section 163 of the same Act validates any defect in the Forms used by the Commission for the election. That the Form EC8Ewith serial No. FC/306/07 dated 21/04/07 was not tendered in evidence although it was attached to 3rd Respondent’s Reply, there is a difference between the attachment to the Reply and the tendering of same in evidence as Exhibit before the Court.

On the declaration of Result by 2nd Respondent, counsel submitted further that the petitioner did not make section 28(2) of the Electoral Act 2006, as to the actual person who declared the result of the said election, an issue in his petition and that the law is trite that evidence at variance with pleadings goes to no issue. Counsel also related to section 146(2) of the Electoral Act, 2006 and urged the court to hold that the issue of who declares the result of the election is of no moment.

Submitting on the question of missing Forms EC8Aand over-voting, learned counsel submitted that the sanction of refusal to answer to subpoena is either to tender secondary evidence or committal proceedings. See Buhari v. Obasanjo (supra) and not the invocation of section 149(d) of the Evidence Act.

That all the allegations of inflation and falsification of results are criminal allegations that must be proved beyond reasonable doubt and which counsel submitted that the petitioner had failed to prove. He therefore urged the court to hold that the tribunal’s finding on section 144(2) and paragraph 47 of the First Schedule to the Electoral Act 2006 should be upheld. Furthermore, that the finding of the tribunal on sections 10 and 11 of the Electoral Act 2006 is proper in law and that the tribunal properly evaluated the evidence of all the parties and came to a just conclusion.

On behalf of the 3rd respondent, her learned counsel also submitted at great length and relied on the Constitution of the Federal Republic of Nigeria 1999, Electoral Act, 2006 as well as the Manual for Election Officials 2007. The submission in summary aligned squarely with that by the 1st, 2nd, 4th and 5th respondents and counsel urged the court not to disturb the findings of the lower Tribunal to the effect that, the petitioner’s assertion was bare on the so-called non-use of the authentic voters register.

The determination of the 2nd issue would necessitate the reproduction of the learned Tribunal’s findings at pages 340 and 341 of the record wherein it held and said:

“On the authentic Voters Register, apart from the bare assertion of the petitioner that official Voters Registers were not used in the conduct of the election in Ibadan South West, there is nothing laced before the court to substantiate that only the electronic Voter Register is the official and authentic Voter Register. Sections 10 and 11 of the Electoral Act, 2006 referred to by counsel to the petitioner did not specify the type of Voters Register that is authentic and official, rather they empower Independent National Electoral Commission (INEC) to compile, maintain and update on a continuous basis a National Register of Voters called Register of Voters. However section 16 of the Electoral Act, 2006 empowered Independent National Electoral Commission (INEC) to cause a Voters Register for each state to be printed and to issue to any person or political party upon payment of such charges, a certified copy of any Voters Register for the State or a Local Government or Registration Area (Ward) within it. Therefore only a Certified True Copy (CTC) of the Voters Register from Independent National Electoral Commission (INEC) can prove the official or authentic Voters Register for a State or Local Government. By failing to produce any Certified True Copy (C.T.C.) of the only type of this alleged electronic Voters Register, the petitioner has failed to prove his allegation that the Official Voters Register was not used in the conduct of the election in Ibadan South West Local Government of Oyo State. This Tribunal shall rather presume that the Certified True Copy (CTC) of the Voters Register tendered by the petitioner as Exhibits PE 13 to PE 24 are the official voters register for Ibadan South West Local Government which goes to support the case of the 1st, 2nd, 4th and 5th Respondents that both the Electronic and Manual Voters Registers were official Registers used for the election.”

Relevant to the issue in question, the learned appellant’s counsel related same to the following provisions of PART III – NATIONAL REGISTER OF VOTERS AND VOTER’S REGISTRATION:

“10.(1) The Commission shall compile, maintain, and update on a continuous basis a National Register of Voters, in this Act referred to as the “Register of Voters” which shall include the names of all persons entitled to vote in any Federal, State, Local Government or Area Council Elections.

(2) The commission shall maintain as part of the National Register of Voters, a register of voters for each state of the federation and for the Federal Capital Territory.

(3) The Commission shall maintain as part of the Register of Voters for each state and the Federal Capital Territory, a Register of Voters for each Local Government and Area Council within the state and the Federal Capital Territory.

(4) The Register shall contain in respect of every person the particulars required in the Form prescribed by the Commission.

11(4) When a general election is notified by the Commission pursuant to section 31 of this Act, the current official register of voters certified by the Commission in accordance with the provision of this Act shall be the official Voter’s register for those elections and in the case of every by-election conducted under this Act, the official voter’s register for use at such elections shall be the existing current register relating to the senatorial district or the constituency concerned.

14(1) A person who before the election is resident in a constituency other than the one in which he was registered may apply to the Resident Electoral Commissioner of the State where he is currently resident for his name to be entered on the Transferred Voters list for the constituency.

18. Each Electoral Officer shall take custody of voters register for his Local Government Area under the general supervision of the Resident Electoral Commission.

20(1) Subject to the provisions of section 17(1) of this Act, the Commission shall, by notice appoint a period of not less than 5 days and not exceeding 14 days during which a copy of voter’s register for each Local Government and Area Councilor Ward shall be displayed for public scrutiny and during which period any objection or complaint in relation to the names omitted or included in the voters’ register or in relation to any necessary correction, shall be raised or filed.”

The appellant’s grouse in issue two was that sequel to the provisions of the various Electoral Act, 2006 under reference supra, there cannot but only be one authentic and valid voters register for the conduct of any election under the Electoral Act 2006. Further still that the nature of such valid and authentic voters register has been proved to exist on the evidence of the witnesses to the 1st, 2nd, 4th and 5th respondents. That the electronic voters register was the authentic voters register which should have been used for the conduct of the election complained against. Reference to corroborate the submission of counsel as related to the evidence by the respondents’ witnesses as well as the interpretative definitions of similar situational cases were alluded to English authorities. Learned counsel deductively submitted therefore that the failure to use official or authentic voters register in the conduct of the election under reference, within the geographical area of Ibadan South West Local Government section of the Federal Constituency, should cause the court to resolve the issue in favour of the appellant.

The pertinent question arising from the appellant’s 2nd issue and as properly raised by the 3rd respondent’s brief of argument is, whether or not the 1st, 2nd, 4th and 5th respondents followed the procedure for the conduct of the April 21st, 2007 elections in relation to the use of voters register in the Ibadan South West Local Government Area?

By paragraph V at page 156 of the record of appeal in the statement on oath of the petitioner, she stated thus:

“(V) The 1st Respondent and the 5th Respondent did not use the official voters register compiled by the 1st Respondent for the conduct of the election in the Ibadan South West Local Government while the official voters register was used for the conduct of the election in the Ibadan North West Local Government.”

Also at paragraph 4.2 of the Petitioner’s Reply to 3rd Respondent’s Reply to the petition at page 102 of the record of appeal it was averred that:

“4.2 That the electronic voters register was used for the conduct of the election at both Ibadan North West and Ibadan south West Local Government. In the conduct of the election in the Ibadan North West Local Government the voters register was used, but in the election conducted in Ibadan South West Local Government the voters register was not used and votes were merely allocated in favour of the 3rd Respondent.”

With reference also to the provision of paragraph 15(a) of the third Schedule to the 1999 Constitution of the Federal Republic of Nigeria the powers and duties of the electoral body, are specified as follows:

“The Commission shall have power to: organise, undertake, and supervise all elections to the offices of the President and Vice President, the Governor and the Deputy Governor of a State and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of Assembly of each State of the Federation.”

Also by paragraph 15(e) of the same Schedule supra it provides that the Commission shall have power to:

“Organise and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution.”

It is apparent, and without having to import an extra addendum that there is nowhere in the provision of the Constitution that the voter registration exercise should be done manually or electronically. Sections 10(1), 10(3) and 11(4) of the Electoral Act reproduced supra are evident. It is also pertinent to recapitulate that these were the provisions sought to be relied upon by the appellant in his submission and in substantiation further, are the foregoing sub-paragraphs (a) and (e) to paragraph is of the Third Schedule to the same constitution.

Relating also backwards to paragraph 4.2 of the petitioner’s reply to 3rd Respondent’s reply to the petition under reference and clearly reproduced supra, is a clear-cut indication that the petitioner/appellant was not consistent in his case as the averment in one breath alleged that electronic Voters Register was used for the conduct of the election at both Ibadan North West and South West Local Government. In another breath that Voters Register was used in the Ibadan North West but that the Voters Register was not used in Ibadan South West Local Government.

In the case of Awuse v. Odili (supra) at 296, Salami JCA had this to say:

“In Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 269 the Supreme Court counseled thus:

“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings then turn or somersault during trial, then assume a nonchalant attitude in the Court of appeal only to return to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer … Justice is not interested in scoring debating points ”

With reference again to Part III of the Electoral Act 2006 sections 20- 25 of the Act did not mention which type of voters register should be used but that the provisions had consistently maintained that “there shall be a Register of Voters.”

Relating also to the 1st, 2nd, 4th and 5th respondents’ reply to the petition at page 134 of the record, paragraphs 16, 17 and 18 averred as follows:

“16. That the 1st Respondent is statutorily empowered to use any of the 3 kinds of Voters Register kept by the Commission in the conduct of the April 2007 election as there is no mandatory provision in the Electoral Act, 2006 that a particular kind of Voters Register must be utilized for such purpose.

17. Further to paragraph 16 above, the 3 types of Voters Register in custody of the INEC are:

i. Electronic Voters Register (EVR);

ii. Preliminary Voters Register (PVR);

iii. Form EC1A – Manual Register.

18. That on the 21st April 2007, the Form EC1A was used in the conduct of the Election under reference in Ibadan South West Local Government.”

In support and to substantiate the said averments at paragraphs 16, 17 and 18 supra, one Ekhator Godwin Temple (4th respondent) testified as 1st RW1. In his evidence at page 305x in-Chief wherein he said as follows:

“I am the Electoral Officer for Ibadan North West Local Government Area and the returning officer for constituency… I participated in the election of 24/4/07. I conducted the Election for Ibadan West… ”

Under cross-examination at page 305y he also said:

“We used the Electronic Voters Register for the election, Ibadan North West but when we have problem with electronic register we use manual register so that everybody is taking care of. Electronic Voters Register is the authentic register, but when the name of a person is not contained therein and we are sure is not a case of multiple registration in a unit we allow him to be registered manually”

Keshiro Olugbenga Stephen was the 3rd witness called by the 1st, 2nd, 4th and 5th Respondents. At page 143 of the record of Appeal he deposed to the existence of thee (3) variance of the Voters Register and said:

“10. That I also know as a fact that during the April 21st National Assembly Election for Ibadan

South West and Ibadan North West, that both the Electronic Voters Register (EVR), Primary Voters Register (PVR) and Form EC1A were utilized for the conduct of the last general election throughout the country that Ibadan South West/Ibadan North West Local Government is not an exception.”

Testifying on behalf of the petitioner/appellant as PW4 was one Sola Kola Balogun. At paragraph 5 of his statement on oath at page 23 of the record which he adopted as his examination in chief at the hearing, he confirmed that “accreditation and voting commenced simultaneously “.

The said paragraph 5 reproduced for instance states as follows:

“5. That accreditation of voters and voting commenced simultaneously until about 1.30 p.m. when some thugs wielding dangerous weapons such as guns and cutlasses stormed the election venue and dispersed all the voters that were on queue and the party agents, supervisor and other people on the field.”

Furthermore even the appellant while testifying for the petitioner as PW7 at page 7 of the record of appeal did confirm the use of voters register. Her testimony was contained at paragraph 4 on page 152 of the records:

“4. That before I voted the presiding officer checked my name on the electronic voters register which also had my photograph, before I was allowed to cast my vote.”

From the foregoing pieces of evidence, the following facts are apparent and have emerged:

1. That Electronic Voters Register was used and that where problems were encountered on the Electronic Voters Register, the use of manual Register was resorted to.
2. That Voters Registers were kept in different formats, i.e. Electronic Voters Register (EVR), Preliminary Voters Register (PVR) and Form EC1A (Manual Voters Register).
3. That the appellant did not in any way put forward any contrary evidence against the existence and use of the three (3) variance of the Voters Register.
4. That the position has clearly put beyond doubt that election was conducted with the use of voters register.

On the authority of the case of Kalgo v. Kalgo supra. it is trite law that where the evidence of a party is at variance with his pleadings, it would go to no issue.

It is also trite law that averments in a pleading upon which no evidence is adduced are deemed abandoned. See the case of Balami v. Bwala also supra wherein Adio, JCA said:

“Mere averments in pleadings without proof of the facts pleaded cannot constitute proof of the facts if not admitted. See Adegbite v. Ogunfolu (1990) 4 NWLR (Pt. 146) 578. Further, averments in pleadings on which no evidence is adduced are deemed to be abandoned. See Uwegba v. Attorney General, Bendel State (1998) 1 NWLR (Pt. 16) 363 where no evidence is led in support of an allegation or ground in an Election petition, the trial Election Tribunal or trial judge will be right to hold that the allegation or ground has been abandoned and strike it out.”

It is also significant to re-iterate that as rightly submitted by the learned counsel to the 1st, 2nd

, 4th and 5th respondents, apart from the bare assertion of the petitioner in her statement on oath at paragraph V at page 156 of the record of appeal, which is reproduced above, she neither identified the Voters Register that was used in the conduct of the election questioned, nor did she deny at all, the use of Voters Register or made any case that only electronic Voters Register should be used. The appellant did not also see it significant to have called any of the voters to testify that he/she was denied voting as a result of a Voters Register that was not authentic.

The law is trite and very elementary that the burden lay on the petitioner/appellant to have proved that authentic Voters Register was not used in Ibadan South West Local Government during the conduct of the election – Sections 135 and 136 of the Evidence Act Laws of the Federation of Nigeria.

With the appellant having confirmed in her evidence of the use of the Electronic Voters Register at Ibadan South West Local Government Area for the conduct of the said Election of April 21st 2007, her argument of the non-use of such is a clear contradiction and which said particular evidence would not be accorded any weight. Relevant in support is the case of Okoro v. Dakolo (2006) All FWLR (Pt. 336) P. 201 at 219 where the apex Court said thus on the effect of evidence at variance with pleadings:

“If the evidence is at variance with the pleadings, such evidence will have no value. It will be discountenanced because it is contrary to the issues joined and therefore, goes to no issue worthy of consideration.”

Nothing was placed before the lower Tribunal to justify the allegation of non-use of Electronic Voters Register or that Authentic Voters Register was not used. The law is well enunciated that he who asserts has the onus to prove. The case of Ali Lawai v. Yama (2006J 2 EPR p. 642 at 663

is instructive where this Court held per Nzeako, JCA thus:

“It is the law that where a party fails to call evidence in support of his case or in rebuttal of the case of the opposite party, the trial court is entitled to resolve the matter against that party unless thereby some other reasons to the contrary. See also Fashogbon v. Layade & 4 ors (.1999) 11 NWLR (Pt. 628) pg. 543 at 558. See also the case of HELP (Nig.) Ltd. v. Silver Anchor (Nig.) Ltd. (2006) All FWLR (Pt. 331) P. 1833 at 1846 paras. F-H.”

The learned appellant’s counsel in his submission advanced that manual voters register was used in Ibadan South West Local Government. In the absence of pleading such and advancing evidence to substantiate, he cannot be heard to give evidence as his submission is not a substitute thereof as rightly argued by the learned 3rd respondent’s counsel. The authorities in point are Arab Bank Ltd. v. Felly Heme (Nig.) Ltd. (1995) 6 NWLR(Pt. 387) pt. 100 at 111 and Odubekov. Fowler &. Anor (1993) 7 NWLR(Pt. 308) 637.

In the result and on the deduction of the said Issue 2, it is my candid opinion that contrary to the submission of the learned appellant’s counsel, it is in evidence and from all there is that the 1st, 2nd, 4th and 5th respondents made the use of the appropriate voters register for the conduct of the April 21st 2007 elections in the Ibadan South West Local Government Area. The issue 2 is as a consequence resolved against the appellant therefore.

The last issue three is whether the Petitioner had proved substantial non-compliance with the Electoral Act 2006 in respect of the election into the Federal House of Representative for the Ibadan South West/Ibadan North West Federal Constituency.

In his submission to substantiate the said issue, the learned appellant’s counsel predicated same on three broad based grounds as follows:

“a. That Manual Voters Register was used as against the authentic electronic voters register in Ibadan South West Local Government of the Federal Constituency.

b. That there was no collation of results of Ibadan South West Local Government; and

c. That the results of the election were falsified, written and declared before the elections were concluded.”

With the deductions arrived at issue two on the use of manual voters register in Ibadan South West, it would only amount to an academic exercise to revisit the submission on that point which I consider as having been concluded.

In summary and submitting on the questions of non-collation, falsification and predating of result, the learned appellant’s counsel garnered that the Tribunal did not evaluate the evidence of the parties, and where it however made any semblance of evaluation it was sterile, as it did not put the pieces of evidence on a scale to determine which one was more credible. Learned counsel further submitted the abundant available facts and evidence of non-compliance with the Electoral Act 2006, which he argued was substantial and which affected the result of the election.

Furthermore that the findings of the Tribunal on the interpretation of the relevant sections of the Electoral Act 2006 and the evaluation of the evidence are perverse and should be revised. That the corrupt practices and non-compliance affected the result of the election.

Counsel went at great length to further submit that the decision to deliver result of local government collation to the 2nd Respondent is in breach of the S. 28 (e) of the Electoral Act; also most fundamental and criminal is, the completing Form ECBE before the election had been concluded. That each act of non-compliance with Electoral Act has created an avenue for the manipulation of the result of the election which was manipulated. That if the valid and lawful votes were counted the petitioner/appellant would have won the election by 1,743 votes, That by crediting unlawful and valid votes in favour of the 3rd Respondent, the 1st, 2nd, 4th and 5th Respondents prevented the petitioner/appellant from winning the election. This Court is therefore urged to resolve the said issue in favour of the appellant and on the totality to allow the appeal.

In response to the appellant’s issue three, and on behalf of the 1st, 2nd, 4th & 5th Respondents, their joint arguments by their issue two was advanced in respect of their response to the appellant’s issues 2 and 3.

Submitting on the non-collation of results and deliberate refusal to undertake constituency collation, the learned respondents’ counsel submitted and argued that by the tendering of the Electoral forms at the different level of collation, it raises a presumption of regularity that collation was done. The case of Agoda v. Enamuofor (supra) was cited in support. Counsel further submitted that the onus is on the petitioner to adduce sufficient evidence of non-collation of result as it was pronounced in Nnaii v. Agbo also under reference.

Submitting further on the Evaluation by the Tribunal, the learned counsel stressfully re-iterated that the Honourable Tribunal properly evaluated the evidence of the parties. Reference was made at pages 344 to 356 of the record of appeal.

On the question of the use of Form EC8A(II) with the same serial number and falsification and pre-dating Result, the learned counsel copiously related to certain provisions of the Electoral Act 2006 and in articular Sections 77 and 163. He further submitted the view held in the case of Ebun v. Ebun (2007) Vol. 6 WRN P. 105 at 149-150 wherein it was held that defect in Forms issued in the conduct of an election will not vitiate an election where there has been substantial compliance with the law governing the conduct of such election.

That to prove falsification of result as alleged by the petitioner, 2 sets of results must be produced and tendered with one correct and the other stigmatized as false. Learned counsel cited in support the case of Ojo v. Esho (1999) 5 NWLR (pt. 603) 444 &. 453 per Salami, J.C.A. That the petitioner did not plead, produced and tendered two sets of results. That the Form EC8Ewith serial No. FC/306/01 dated 21/04/01 was not tendered in evidence; although it was attached to the 3rd Respondent’s Reply, that, there is a difference between the attachment to the reply and the tendering of same in evidence as Exhibit before the Court. See the cases of Buhari v. Obasanjo supra at 416-417; Dikko Yusuf v. Obasanjo also supra at 182-183; and Atikpekpe v. Joe (1999) 6 NWLR (Pt. 607) 428; 442-3.

Relating to the question of declaration of result by 2nd respondent, the learned counsel submitted the failure by the petitioner in making section 28(2) of the Electoral Act, 2006 an issue in his petition. That evidence at variance with pleadings goes to no issue. Further reference was drawn to section 146(2) of the Electoral Act, 2006.

Further still and on the question relating to missing Forms EC8Aand over-voting, counsel submitted that the sanction of refusal to answer to subpoena is either to tender secondary evidence or committal proceedings. The case cited to substantiate is Buhari v. Obasanjo (supra) and not the invocation of section 149(d) of the Evidence Act.

On the allegation of over-voting, that the petitioner neither pleaded the polling units, wards, number on the register of voters and the number of voters to show the areas where over-voting occurred nor gave evidence of this fact. Again, the case in support is Kalgo v. Kalgo (supra). That all the allegations of inflation and falsification of results are criminal in nature and which must be proved beyond reasonable doubt and thus he submitted the petitioner had failed to prove.

Learned counsel submitted in summary that the Tribunal properly evaluated the evidence of all the parties and came to a just conclusion. He urged that the court should dismiss the appeal as lacking in merit.

The learned counsel for the 3rd respondent in response to the appellant’s issue three greatly hinged on and submitted the issue connoting criminal allegation which counsel argued must be proved beyond reasonable doubt. Counsel on the totality summarized and re-iterated the appellant’s failure to prove that the act of corrupt practices and noncompliance were substantial and that they impact on the result of the election. Counsel urged that the appeal be dismissed as lacking in merit.

The issue at hand relates to whether or not the appellant as the petitioner at the lower Tribunal proved non-compliance with the Electoral Act 2006 in respect of the questioned Election. Relevant for the determination of this issue is section 146(1) of the Electoral Act wherein it states:

“146(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the election.”

Deducing from the interpretation of the foregoing provision, the extent of non-compliance in the conduct of an election to affect and invalidate such election must be proved to be substantial and thus affecting the result of the election.

The general principle of law relating to non-compliance to the Electoral Act, 2006, is that, for the petitioner to succeed, he must prove not only that there was non-compliance with the provision of the said Act, but in addition that such non-compliance substantially affected the result of the elections. The following authorities are apt and in support: Ibrahim v. Shagari (1983) SCNCR 176; Awolowo v. Shagari (1979) 6-9 8C1; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 7 at 231-232; Eriobunnav. Ezeife (1992) 4 NWLR (Pt. 236) 417 at 430; Adun v. Osunde (2003) 16 NWLR (Pt. 847) 634.

In alleging non-compliance with the Electoral Act, the appellant raised the question of non-collation of results. It was the appellant’s case on his pleading for instance that there was no collation of results in Ibadan South West Local Government and further that there was no constituency collation of the results from the 2 Local Governments making up the constituency. PW1 in his evidence wherein he adopted his statement on oath deposed that at the Ibadan South West Local Government Council which was the collation centre for the election, they were not allowed to enter the collation centre until about 11 p.m. by which time the result of the election had already been computed; the said witness’s deposition on oath is at page 28 of the record of appeal. He was by name one Lana Adebayo and served as the Chairman of Action Congress. At paragraphs 4, 5, 7 and 8 of his deposition for instance he stated as follows:

“4. Specifically in Ward 11 Units 12, 13 and 14 the soldiers who were at the booth as security men had to take away the boxes when they see the level of electoral malpractices perpetrated by PDP thugs.

5. There was no counting of votes in those units. However other units were not so lucky as the police on hand became ready tools in the hands of PDP thugs.

……

7. As a Chairman after the whole exercise I wrote a petition against the conduct of the election and same was submitted to INEC Commissioner for Oyo State who read same in our presence and invited us in and promised to act on it but nothing was done.
8. That shortly before we were allowed to enter the collation centre, some ballot boxes were brought to the collation centre at about 10.30 p.m. from unknown source and all enquiry made at the gate were kept were rebuffed.”

It is evident to restate that the said evidence by PW1 was not challenged by the respondents. The 1st RW2and 1st RW3in their evidence on collation of result at the Ibadan South West also presented a near evidence of the collation as given by PW1 above but could not however agree on the time the collation took place. In other words, while the former pegged it at 11 p.m. so as to tally with the evidence of PW1, the latter put the time at 8 p.m. There is a suggestion therefore, of a confirmation of the evidence given by PW1.

The 3rd RW1was the Peoples Democratic Party Chairman for Ibadan South West Local Government. In his evidence he did not challenge the testimony of PW1 but only gave evidence of collation at the unit under cross-examination which he said took only five minutes. It is trite and elementary that averments which are not contradicted or denied are deemed admitted.

The appellant on her allegation also contended the absence of constituency collation of the result of the election. In substantiation on her evidence she adopted her deposition under oath at the hearing of the petition. As rightly submitted by the learned appellant’s counsel, the onus had therefore shifted unto the Respondents to prove otherwise. There was no effort put forward to rebut the allegation. The totality of the summary is to the effect that there was a deliberate refusal to undertake constituency collation as rightly submitted by the learned appellant’s counsel. By the provision of section 74 of the Electoral Act 2006, same reproduced states as follows:

“74. Subject to the provisions of this Act, the Commission shall issue and publish in the Gazette, guidelines for the elections which shall make provisions, among other things for the step by step recording of the poll in the electoral forms as may be prescribed beginning from the polling station or unit to the last collation centre for the ward or constituency where the result of the election shall be declared.”

A further allegation of non-compliance related to the use of Form EC8A (ii) with the same serial number. With reference to the evidence by 1st RW2 whose name is Abdul-azeez Suleman Adebayo at pages 305Z to 305AA of the record of appeal, the witness gave evidence that he was an electoral officer in Ibadan South West Local Government. That he had enough materials for all his polling units and tendered Exhibit 3rd RE12, which showed sufficient adequate materials to conduct the election. The appellant also tendered several Forms EC8A(ii) with same serial numbers. At pages 240 to 243 of the Record of Appeal, prevalent highlights of the double use of Form EC8A (ii) with the same serial numbers were shown in Ibadan South West Local Government. The Double serial numberings were prominent in Ward 1, Ward 2, Ward 05, Ward 06, Ward 10 and Ward 11, all in Ibadan South West Local Government. As rightly argued and submitted by the learned appellant’s counsel, therefore, by tendering the said set of Forms EC8A (ii) as Exhibits and the frequency in their use, without the 1st, 2nd and 5th Respondents explaining why this was done, when enough materials for the conduct of the election were made available, leaves much to be desired. The only logical explanation in my opinion is that the act must have been done to facilitate the falsification of the election results. The attitudes certainly portray a game of hide and seek. In other words, if the 1st RW2 had enough working materials, what was the reason occasioning the use of Form EC8A (II) with same serial number in so many wards. The conclusion in the absence of any explanation was an intension to overreach or play “a hanky-panky” game on the manipulation of the results. In the Court of Appeal decision Jos Division in Suit No. CA/J/EPT/GOV/419/2007 INEC v. Action Congress (unreported at page 59) delivered on Tuesday 26th day of February, 2008 at page 40, the court held amongst others that omissions that characterised the election at various stages amounted to gross negligence and that gross negligence is evidence of dishonesty. Also at page 49 of the report, it further held that where INEC does not give a reason for its action (which is not in compliance with Electoral Act) such action is unlawful. In the absence of any such explanation therefore, it would go without saying that the petitioner would in the result have made a prima facie case which if not explained or rebutted ought to entitle him to judgment.

Also in the case of Fannami v. Bukar (2004) All FWLR (Pt. 198) page 1211, it was held that INEC (I.e. 1st Respondent and its agents have the responsibility under the Electoral Act 2002 to ensure free and fair elections are conducted. This would include the responsibility to supply ballot papers and all necessary materials to all polling units and polling stations as it was clearly related in the judgment under reference. In the event of any failure, the election could not be said to have been free and fair. The deliberate use of Form EC8A(II) with same serial number in several polling units for instance cannot characterise the election as free and fair. The resultant effect is an outcome of non-compliance with the Electoral Act in the conduct of the said election.

On the question of evaluation by the lower Tribunal, it is relevant to reproduce certain findings of the said Tribunal, specifically at pages 344, 345, 352 and 353 of the record of appeal as follows:

“Since the standard of proof is elevated to be beyond reasonable doubt, the burden is on the petitioner who alleges, to adduce concrete and positive evidence by producing documents and figures to show that the results as declared by the State Resident Electoral Commissioner for Oyo State did not reflect the correct aggregate of results scored by the candidates at the polling units where she had her agents who were given copies of results. This burden the petitioner has failed to discharge in the instant case.

This tribunal has considered the evidence of the petitioner on this issue and is of the firm view that the petitioner has failed to establish any credible nexus between the alleged perpetrators of the malpractices and the 3rd respondent. See the case of Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt. 263) 23.

It is trite that a party who alleges falsification of election result must prove same and this is done by the petitioner presenting before the Court 2 sets of results one of which he alleges to be genuine and the other false. See the cases of Kalu v. Uzo (2006) 8 NWLR (Pt. 981) 66 at 103; Ojo v. Esohe (1999) 5 NWLR (Pt. 603) 444 and 5abiya v. Tukur (1983) NSCC 559.”

Again and in the case of Nnaji v. Agbo (supra) the court held and said:

“The onus is therefore on the petitioner to adduce sufficient evidence of non-compliance and then show that non-compliance did in fact substantially affect the result of the election.”

The question as to whether or not the appellant discharged this onus of proof is a matter of evidence adduced at the lower tribunal. At page 4 of the record of appeal the grounds upon which the petition is based are clearly spelt out and earlier reproduced somewhere in this judgment. In other words, that the election complained of was “marred by corrupt practices and non-compliance with the Electoral Act 2006 …”

It is expedient to say that what was placed before the Tribunal was the need to determine whether or not the conduct of the election was in fact characterised by the allegation levied against it. The issue before the Tribunal therefore was not criminal but irregularities relating to the conduct of the election. Having regard to the findings of the learned Tribunal especially the elevation of the standard of proof to the level as that in criminal matters, the initial starting point of the judgment was wrongful. The expectation in other words was proof beyond reasonable doubt. This is evidenced per the pronouncement reference earlier at pages 344-345 of the record of appeal wherein the learned Tribunal said amongst others:

“Since the standard of proof is elevated to be beyond reasonable doubt… ”

(See the full reproduction of the pronouncement supra.)

The standard of proof in the nature of the subject matter at hand is on the balance of probability. This certainly was not what was working on the mind of the learned Tribunal Judges at the time of evaluation. In other words, while their mind was focused on criminal consideration, the expectational statutory requirement pending before them was evaluation on preponderance of evidence, in other words an election matter. The subject matter of consideration was not within the contemplation of the learned Tribunal. In other words at the material time, there was no contemplation within the provision of the Electoral Act 2006 which was the governing statute upon which the subject matter was to be determined. There could, in other words, certainly not have been proper evaluation especially where criminal standard was applied to a subject matter not within its realm. That consideration by the lower Tribunal with all respect was erroneous and consequent to which issue 3 is resolved in favour of the appellant.

In the result and on the three issues raised in this appeal, while the appellant succeeds on issues 1 and 3, issue 2 is however resolved against him. With the appellant therefore having proved sufficient non-compliance of the conduct of the election complained of, as well as the absence of a proper evaluation of evidence, the appeal succeeds in part and consequent to which I make orders as follows:

1. That the judgment of the Tribunal delivered on the 20th November, 2007 is hereby set aside.
2. An order is made nullifying the National Assembly Elections for the Ibadan South West/North West Federal Constituency of Oyo State of Nigeria including the returns made thereto and order fresh election in the Ibadan South West Local Government.
3. A further order is made on the INEC to conduct the said fresh election in order 2 above, within

60 days from today.

Each party is to bear the costs of the appeal and I therefore make no order as to costs.

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Other Citations: (2009)LCN/3446(CA)