Chief Ayogu Eze V. Brig. Gen. J.o.j. Okoloagu (Ritd) & 125 Ors (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is an appeal against the judgment of the National Assembly/Governorship/Legislative Houses Election Petition Tribunal (herein referred to as the Tribunal) sitting in Enugu. The judgment was delivered on 11/12/2007, when the election of the 1st respondent (herein referred to as the Appellant) was nullified and INEC (herein referred to as the 2nd respondent) was ordered to conduct a fresh election within three months. (See p.413 to 421 of the record).

Being dis-satisfied with the said judgment the Appellant appealed to this Court of Appeal on 11 grounds of Appeal. The Notice and Grounds of Appeal is at pages 472-482 of the records.

From the 11 grounds of appeal, the Appellant in his Brief of arguments formulated the following issues for determination in this appeal:

1. Whether the Honourable Tribunal was right in relying on Exhibits 1, 2,3,4,5,6,7,8,9, 10, 11. 12 and 14, 14A and 14B in nullifying the election of the Appellant? (Arising from Grounds 1, 2 and 6).
2. Whether there was a proper evaluation of the evidence offered on both sides, by the Tribunal, before arriving at the decision that the 1st Respondent’s witnesses were not contradicted? (Arising from Ground 3).
3. Whether the Honourable Tribunal was right in treating evidence validly elicited under cross-examination by the counsel for the 2nd set of respondents (at the tribunal below) from witnesses for the Appellant as mere after thought? (Arising from Ground 4).
4. Whether the Honourable Tribunal was correct in nullifying the said election on the ground that there was no specific denial of the 1st Respondent’s direct and specific allegations of ‘allotment of votes to parties which did not field candidates’, considering the state of pleadings of the parties? (Arising from Ground 5).
5. Whether the Honourable Tribunal was right in holding that the allegations of non-delivery of election materials, non-voting, cancellations and mutilations of some results, omission or exclusion of the petitioner, recording of votes for some political parties which did not field candidates for the election, made in the petition by the 1st Respondent are civil in nature and are therefore to be proved on the balance of probability? (Arising from Ground 7).
6. Whether the provisions of paragraphs 3(8)(b), 4(7) and 5(7) of the Election Tribunal and Court Practice Direction, 2007 have whittled down the established standard of proof required of a petitioner in an election petition? (Arising from Ground 8).
7. Whether the Honourable Tribunal was correct in placing the burden of proving how non-compliance and irregularities affected the result of the election on the Appellant? (Arising from Grounds 9 and 10).
8. Whether the Honourable Tribunal was correct in holding that even though the 1st Respondent failed to prove that the Appellant was directly or indirectly involved in the alleged malpractices, he (the Appellant) will not be allowed to benefit from the alleged malpractices? (Arising from Ground 11)

The 1st Respondent (as petitioner in the Tribunal) on his part formulated, in his Brief, the following issues distilled from the II grounds of Appeal, as follows:

(I) WHETHER THE HONOURABLE TRIBUNAL WAS RIGHT IN RELYING ON EXHIBITS 1,2,3,4,5,6,7,8,9,10,11,12,14, 14A AND 14B IN NULLIFYING THE ELECTION OF THE APPELLANT (Arising from Grounds 1, 2 and 6)

(2) WHETHER THERE WAS A PROPER EVALUATION Of THE EVIDENCE OFFERED ON BOTH SIDES, BY THE TRIBUNAL, BEFORE ARRIVING AT THE DECISION THAT THE TRIBUNAL DISBELIEVED THE 1ST RESPONDENT’S WITNESSES AND BELIEVED THE PETITIONER’S WITNESSES.

(3) WHETHER THE HONOURABLE TRIBUNAL WAS RIGHT IN TREATING THE EVIDENCE ELICITED UNDER CROSS-EXAMINATION BY THE COUNSEL FOR THE 2ND SET OF RESPONDENTS (AT THE TRIBUNAL BELOW) FROM RWI AS MERE AFTER THOUGHT? (ARISING FROM GROUND 4).

(4) WHETHER THE HONOURABLE TRIBUNAL WAS CORRECT IN NULLIFYING THE SAID ELECTION ON THE GROUND, AMONG OTHER GROUNDS, THAT THERE WAS NO SPECIFIC DENIAL OF THE 1ST RESPONDENT’S DIRECT AND SPECIFIC ALLEGATION OF ALLOTMENT OF VOTES TO PARTIES WHICH DID NOT FILED CANDIDATES, CONSIDERING THE STATE OF PLEADINGS OF THE PARTIES? (Arising from Ground 5).

(5) WHETHER THE HONOURABLE TRIBUNAL WAS RIGHT IN HOLDING THAT THE ALLEGATIONS OF NON-DELIVERY OF ELECTION MATERIALS, NON-VOTING, CANCELLATION AND MUTILATION OF SOME RESULTS, OMISSION OR EXCLUSION OF THE PETITIONER, RECORDING OF VOTES FOR SOME POLITICAL PARTIES WHICH OLD NOT FIELD CANDIDATES FOR THE ELECTION, MADE IN THE PETITION BY THE 1ST RESPONDENT ARE CIVIL IN NATURE AND ARE THEREFORE TO BE RESOLVED ON THE BALANCE OF PROBABILITY? (Arising from Ground 7)

(6) WHETHER THE PROVISIONS OF PARAGRAPHS 3 (8)(b) 4(7) AND 5(7) OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION, 2007 HAVING WHITILED DOWN THE ESTABLISHED STANDARD OF PROOF REQUIRED OF A PETITIONER IN AN ELECTION PETITION? (Arising from Ground 8)

(7) WHETHER THE HONOURABLE TRIBUNAL RIGHTLY APPRECIATED THE PARTY ON WHOM THE BURDEN OF PROOF LAY, AND IF YES, WHETHER THE PARTY DISCHARGED THE BURDEN CAST ON HIM (Arising from Ground 9).

(8) WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING THAT EVEN THOUGH THE 1ST RESPONDENT FAILED TO PROVE THAT THE APPELLANT WAS DIRECTLY OR INDIRECTLY INVOLVED IN THE ALLEGED MALPRACTICES, HE (THE APPELLANT) WILL NOT BE ALLOWED TO BENEFIT FROM THE ALLEGED MALPRACTICES?) Arising from Ground II)

The 2nd – 124 Respondents did not file any Brief of argument.

I have carefully read through the respective issues of both Appellant and 1st Respondent. Their respective issues are in substance the same. The Appellant’s issue one (1) is the same as the 1st Respondent’s issue one (1) on whether the Tribunal rightly relied on the Exhibits mentioned in nullifying the election of the Appellant. This issue relates to Grounds 1, 2, and 6. Issue two (2) of the Appellant is the same as the 1st Respondent’s issue two (2) on whether the Tribunal properly evaluated the evidence adduced before it by both parties to petition. The Appellant’s issue three (3) on whether the evidence elicited under Cross-examination by the counsel for the 2nd set of respondents at the Tribunal was rightly treated. This issue is related to Ground 4. The appellant’s issue four (4) is the same as the 1st Respondent’s issue four (4) on whether the Tribunal was right in nullifying the election on the ground, inter – alia absence of specific denial of the 1st Respondent’s allegation of allotment of votes to parties not contested the election. This is from Ground 5. Similarly, the Appellant’s issue five (5) is also the same as the 1st Respondent’s issue five (5) on whether the Tribunal was right in deciding that certain offences named in the petition alleged to have been committed, were civil in nature and be resolved on the balance of probability. This related to Ground 7. Issue six (6) of the Appellant’s issues is the same as issue six (6) of the 1st Respondent on whether the establishment and standard of proof required on a petitioner in an election petition have been whittled down. The seventy (7th) Appellant’s issue is the same as the 1st Respondent’s issue is the same as the 1st Respondent’s issue seven (7) this relates to Ground 9, while Appellant’s issue eight (8) is the same as the 1st Respondent’s issue eight (8) on whether appellant can be held responsible for the criminal behaviour of others. This issue relates to Ground 11. I shall therefore treat the issues raised by the Appellant since both issues raised by Appellant and 1st Respondent are identical.

But before examining the issues, it is necessary to briefly state the facts leading to this appeal.

On 21/4/2007 election was held to elect a Senator representing Enugu North Senatorial District. At the end of the election, the appellant was return as the winner. The 1st Respondent was not satisfied with the declaration and the return of the Appellant as the winner, he, on 21/5/2007, filed a petition against the Appellant and 2nd – 126th Respondents challenging the return of the Appellant. The Grounds of the petition without their particulars are as follows:

“5. Your petitioner states that the purported election held in Enugu North Senatorial Zone on the 21st day of April, 2007 was null and void on the following grounds:

1. The purported election is invalid, null and void by reasons of irregularities, malpractices and corrupt practices perpetuated by the Respondents and their agents and that the purported election was not conducted in substantial compliance with the provisions of the Electoral Act, 2006 and INEC rules and Guide Lines.

Alternatively: The petitioner contends in the alternative, that the purported election on declaration of the 1st Respondent (Appellant) as the winner of the purported election was nor based on the majority of lawful votes cast at the election. (See paragraph 5 of the petition at pages 3 – 4 of the records).

The relief sought by the 1st respondent as the petitioner were as follows:

1. An order nullifying the purported election held on 21st April 2007 in Enugu North Senatorial Zone, Enugu State.
2. An order setting aside the declaration/return of the 1st Respondent (Appellant) as the winner of the purported election.
3. An order directing the 3rd – 10th Respondents to conduct a fresh election in Enugu North Senatorial Zone, Enugu State.

The Appellant filed a reply to the petition denying all the allegations of corrupt practices and irregularities in the petition and averred that the election was conducted in a substantial compliance with the provisions of the Electoral Act, 2006. (See pages 114 – 172 of the records). The 3rd -113th Defendants’ (Respondents’) reply to the petition was struck out following the refusal by the Tribunal to grant them extension of time to file Reply out of time. The 3rd – 113th Defendants (Respondents) were therefore forced to go to trial without a reply and did not call witnesses in their defence.

After taking evidence from the petitioner 1st Respondent, who voted during the election, and four other witnesses who gave evidence (on his behalf) that they did not vote in their different four polling booths out of the 1,084 polling booths in the 6 Local Government Areas, making up of the Senatorial District, and after taking evidence from the Appellant and his other two witnesses who testified that they all voted at the election, the Tribunal nullified the election of the appellant. According to the Tribunal though the 1st Respondent did not prove the irregularities as alleged, he proved non-compliance and non-voting as many voters were disfranchised.

Thus the appeal.

ISSUE NO.1

Whether the Honourable Tribunal was right in relying on Exhibits 1 – 12 and 14, 14A and 148 in nullifying the election of the Appellant. This issue is raised from issue 1 in the 1st respondent’s brief.

To my understanding, the complaint of the Appellant under this issue is that the Tribunal was wrong to have acted on exhibits 1 – 12 and 14, 14, and 14B in nullifying the election of the Appellant.

It is the appellant’s submission on this issue that the Tribunal relied on the said exhibits in nullifying the election of the Appellant, when the impact or effect of any of the said exhibits to the petition during the trial was not demonstrated in the open court by the 1st Respondent, rather the alleged impact and effect of the said exhibits were purportedly analyzed in a 19 page document attached, as annexture, to the final address of the 1st Respondent’s counsel and dated 30/11/2007. That the tribunal relied heavenly on the said analysis made by the 1st Respondent’s counsel and attached it to his address as annexure, and nullified the election. That throughout the entire judgment of the Tribunal, there is no where the Tribunal makes reference to the evidence of any witness analyzing or stating the effect of any exhibits among the exhibits produced at the trial. Rather, the Tribunal relied on its own analysis/observation of the exhibits as well as the analysis done by the learned counsel for the 1st Respondent in coming to the conclusion that the 1st Respondent has proved the allegations of discrepancies, mutilations, cancellations, omissions and alteration of result sheets.

Appellant also submitted that documentary evidence cannot serve any useful purpose without oral evidence explaining its essence and reliance was made on the cases of Bornu Holding Co. Ltd vs. Alhaji Hassan Bogo Co (1971) 1 All NLR 324 at pp. 330 – 331, and Abike v. Obiareri (2002) 4 NWLR (Pt.758) 537, Egbo vs. Appah (2005) 10 NWLR (Pt.934) 464; Alao vs. Akaoo (2005) 11 NWLR (Pt.935 160; Awuse VS. Odili (2005) 16 NWLR (pt.952) 416 at 482 para C.

He further contended that the tribunal was wrong when it relied on exhibits 14, 14A & 14B in nullifying the election of the Appellant when their genuiness or authentic were not established by the 1st Respondent notwithstanding the appellant’s strong objection to their admissibility. The case of Trade Bank Plc vs. Dele Morenikeji (Nig) Ltd 2005 18 NWLR (Pt.921) 309.

On exhibits 14, 14A and /4B which the Tribunal used as evidence of the number of political parties that fielded candidates for the Enugu North Senatorial District, the Appellant contended that there is nothing in the petition or in evidence to show that ballot papers were printed, only for political parties that fielded Candidates for the said Senatorial District.

He finally submitted that, from the totality of arguments canvassed in his brief, the Tribunal was wrong in relying on the said exhibits to nullify the appellant’s election. He urges this court to resolve this issue No.1 infavour of the Appellant.

The 1st respondent in his brief, and on this issue, submitted that Tribunal was right to have acted on the said exhibits the way it did, notwithstanding the fact that the 1st Respondent or any of his witnesses demonstrated orally, before the Tribunal how the said exhibits impacted on his petition. This is because, in the Election Tribunal, the position of the Law is that, parties front- load their written statements on oath. And a witness, is only required to recognize his statement on oath and tender any document mentioned in his statement. Therefore, by virtue of paragraph 4 (1) and (3) of the Election Tribunal and Court’s Practice Direction 2007, the place where the person tendering a document has to testify about the document is in his written deposition but not to embark on in-the-court oral testimony. That the petitioner in his written deposition paragraphs 28 and 29 gave evidence of Irregularities, malpractices and non-compliance, and all these, could be noticed from the exhibits attached.

He further submitted that looking at the said paragraphs 28 and 29, it is clear that the 1st respondent analyzed the irregularities in the exhibits being attached by the Appellants. That written deposition has taken the place of evidence in-chief by virtue of the Practice Direction 2007 and section 76 of the evidence Act which provides that all facts, except the contents of documents, may be proved by oral evidence. The case of Utteh vs. The State (1992) 2 S.C.N.J. 183 at 191 re-Stated the above provision of the evidence Act. He finally submitted that all the cases cited and relied upon by the appellant on this issue are distinguishable from the present case.

Having urges that, this issue No.1 be resolved against the Appellant.

Having carefully gone through the records, and the pleadings of the parties in particular this issue may be treated under the following subheadings which shall be distinctively addressed in the course of my judgment.

(a) what these exhibits are?

The following are the documents that constituted exhibits 1 – 12, 14, 14A and 141B:-

(a) 177 Forms EC8(1) for Igbo Etiti L.G.A Exhibit 1 (1-177)

(b) 110 Form EC8A (1) for Uw Uwani L.G.A Exhibit 2(1-110)

(c) 264 Forms EC8A(1) for Nsukka L.GA Exhibit 3 (1-264)

(d) 100 Forms EC8A(1) for Igbo-Eze South L.GA Exhibit 4(1-100)

(e) 181 Forms EC8A(1) for Igbo-Eze North L.G.A Exhibit 5 (1-81)

(f) 20 forms EC8B (1) for Nsukka L.GA Exhibit 6(1-20)

(g) 16 Form EC8B(1) for Uzo-Uwani L.GA Exhibit 7 (1-16)

(h) 20 Forms EC8B (1) for Igbo-Eze North L.G.A exhibit 8 (1-20)

(i) 13 Forms EC8B(1) for Igbo-Eze South L.GA Exhibits 9(1-13)

(j) 20 forms EC8B (1) Exhibit 10(1-10)

(k) 1 Form EC8C (1) Exhibit 11

(l) 10 form EC8A(1) for Uzo Uwani Exhibits 1-10

(m) 19 Copies from Nsukka LGA Exhibits 12(1-19)

(0) 3 Booklet of Ballot marked as follows

(a) 2 Ward in Igbo Etiti Exhibit 14, 14a

(b) 1 Ward in Uzo-Uwani Exhibit 14h

(See p. 392 – 394 and 398C of the Records).

(b) Did the Tribunal rely on these exhibits in nullifying the Appellant’s Election?

My Lords, permit me to answer this question positively in order to appreciate my answer in order to resort had to be made on the judgment of the Tribunal.

At page 452 of the record the Tribunal held as follows:

(1) “In paragraph 28, the petitioner alleged that there were discrepancies, mutilations, cancellations, omissions and alteration of result sheets, From the evidence before us, especially the exhibits before us, any analysis thereof as ably done by learned Senior counsel for the petitioner in the annexure attached to his written statement and which agrees with the observations of the Tribunal, there are manifest mutilations and cancellations of some polling booths results … we, therefore find as fact that the petitioner has proved some cancellations and mutilations.”

The Tribunal further stated:

(2) “On the allegation of omission, we observe, as rightly analyzed by learned senior counsel for the petitioner, that in up to 93 of the 100 polling booths results, (exhibit 4 series,) the petitioner and his party – AC were omitted as candidate in the EC8A( 1) Forms for Igbo-Etiti South Local Government Area. Please see pages 2 – 6 of the annexure to the petitioner’s written address where learned senior lawyer’s observations tally with our own analysis of exhibit 4 series”

Continuing the Tribunal stated:

(3) “Exhibit 3 series also show that the petitioner’s Action Congress (AC) was omitted as contestant or participant at the said election … as rightly observed by the petitioner at page 6 – 7 of the annexure to his written address. Similarly, the petitioner has shown that he was omitted as a candidate in the result sheets … as per the observations at pages 11 – 13 of the annexure to the petitioner’s written address.”

(4) “We, therefore, find as facts that there was allotment of votes to some parties which did not field candidates for the election.

This is more so when exhibits 14, 14A and 148, although tendered and admitted in evidence as ballot papers abandoned during the election, show clearly that the names and Logos of the affected parties herein above did appear on the ballot papers allegedly used for the election. We cannot chose (sic) our eves to the contents or exhibits 14 -14B because there is no iota or evidence that they were not indeed the ballot papers used for the election.” (underline mine).

From the above segment of the judgment of the Tribunal it is glaringly clear that the Tribunal in nullifying the Appellant’s election relied heavily on the said exhibits.

(c) Was the Tribunal right in relying on them in nullifying the Appellant’s election?

In his brief, the Appellant contended that the tribunal was wrong in relying on the said exhibits, while the 1st Respondent holds a contrary view.

From the records I have observed that the 1st Respondent in his petition alleged that, there were discrepancies, mutilations, omissions, alterations and cancellations of result sheets.

In order to prove these allegations, the 1st Respondent (as petitioner) before the Tribunal, called five witnesses including himself, produced and tendered the documents in question which were received in evidence as Exhibits.

It is evident from the record of this appeal that non of these attached exhibits were read or even taken as read by the Tribunal. Also, these exhibits were tendered and received in evidence without any explanation as to what they were, or their relationship with the petitioner’s case or even their relevance to the fact in issue. In otherwords, the impact or effect of any of these exhibits to the petition was not demonstrated in the open court by the 1st Respondent during the trial. I am not unmindful of the fact that the documents, i.e exhibits 1 – 12 only, are public documents and were fully certified. Also, I see nowhere in the judgment did the Tribunal make reference to evidence of any witness analyzing or stating the effect of any of the exhibits at trial. Rather the Tribunal relied both on its own analysis/or observation of the exhibits as well as the statistical data made through a private research and investigation by the learned senior counsel for the 1st Respondent, which statistical data was found attached to his final address submitted to the Tribunal. See pages 320-366 of the record. The Tribunal upon such reliance came to the conclusion that the 1st Respondent has proved the said allegation of discrepancies, mutilations, cancellations, omissions and alteration of result sheets.

It is trite that documentary evidence cannot serve any useful purpose without oral evidence explaining its essence. This point was extensively dealt with by the Supreme Court in Borno Holding Co. Ltd vs. Alhaji Bogo Co, (supra) where at pp.330-331 the apex Court reiterated this principle and held as follows:

In Egba vs. Appeal (2005) 10 NWLR (Pt.934) 464, the appellants only tendered some documents in evidence without calling anyone to explain their purport. This court (Port Harcourt Division) stated that documents are not objects that can be cross-examined and therefore oral evidence must be called in support thereof. Similarly in Alao vs. Akano (2005)11 NWLR (Pt.935) 160, at 179 para ‘D’ the Supreme Court held that documents admitted in evidence, no matter how useful they could be, would not be of such assistance to the court in the absence of admissible oral evidence by the person who can explain their purport. In that case, several documents were tendered pursuant to the claim. Again in another related case of Terab vs. Lawan (1992) 3 NWLR (Pt.231) 569 at 590, this court held, per Aikawa J.C.A. (of Blessed Memory).

“I agree that the correct view of the law is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspect of the case for a party, when the party has not himself done so. The foundation of the principle is that it is an infraction of fair hearing for the court to do so in the recess of its chambers what a party has not himself done in advancement of his case in the open court.”

Another point deserves discussion here is the issue of the statistical data/or annexture, attached to the written address of the learned senior counsel for the 1st Respondent. This data, as I said above, was made through a private research and investigation carried out side the four walls of the Tribunal by the said 1st Respondent’s counsel. This annexture, in my view, constitutes ‘evidence’ in this matter. As it is known, the term ‘evidence’ is defined as, the “facts; sign or objects that make you believe that something is true; or the information that is used in a court of law to try to prove something.” See Oxford Advance Learner’s Dictionary p. 398.. While in Black’s Law Dictionary, 7th Edition, pages 76, the term ‘evidence’ is defined to mean; something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact. Case law authorities, defined ‘evidence’ as the means whereby the Court is informed as to the issues of facts as ascertained by the pleading; it is the testimony, whether oral or documentary or real, which is produce before a court, or tribunal some facts in dispute. See Fed. Milit Governor vs. Sani (No.2) (1989) 4 NWLR (Pt.117) 684; Lawal vs. Union Bank of Nigeria Plc. (1995) 2 NWLR (Pt.378) 407.

From the above definition, I can confidently say that, the said annexture, as attached to the written address of the learned counsel for the 1st Respondent, is ‘evidence’ and being evidence, therefore, it must be tendered in the course of trial before it can be made part of the address and before the Tribunal can consider it. The address of a counsel no matter how brilliant it is, by the authority of the decision in Buhari VS. Obsanjo. (2005) 13 NWLR (Pt.941) 1. can never amount to evidence. See also the case of Auto Import Export vs. Adebayo (2005) 19 NWLR (Pt.959) 44. In the case of Yoye VS. Olubode (1974) 1 All NLR (Pt.2) 118 at 123 the Supreme Court stated:

“….the address of counsel is supposed to deal only with the evidence before the court. But mere mention of a matter in the course of such address is never a substitute for the evidence that has not been led. Nor can it supplement the inadequacy of the evidence already given at the trial.”

Again, on exhibits 14 – 14B which are alleged to be used and unused ballot papers, the 1st Respondent alleged in his petition that they were dumped and abandoned in the bush and which the agents of the 1st Respondent’s recovered and then tendered in evidence during the trial. At the trial, it is evident that the Appellant did not only strongly objected to their admissibility but also seriously challenged the authenticity of the said exhibits as the document printed and used by INEC at the election. See page 420 of the record, where the Tribunal said:

“However, some ballot papers used and unused, allegedly recovered by agents of the petitioner (1st Respondent) from the bush “were tendered but there was serious objection from the respondents. ”

It is the law that when the authenticity of a document is challenged in a trial the onus crystallized on the party propounding the document to establish its authenticity/genuiness. But the 1st Respondent failed to discharge the onus, and offered no iota of evidence to show that exhibits 14 – 14B were ballots papers printed for and used by INEC at the election.

Curiously the Tribunal accepted these documents and relied on them, and worst of all, placed the burden of proving the authenticity of the documents on the Appellant. When it held:

“We cannot close our eyes to the contents of exhibits 14 – 14B, because there is no iota of evidence that they were not indeed the ballot papers used for the election.”

This holding of the Tribunal under this circumstance is Improper, having the 1st Respondent, who tendered them in evidence, Failed to discharge the onus of proving the authenticity/genuiness of the documents.

In Trade Bank Plc vs. Dele Morenikeji (Nig) Ltd. (2005) 18 NWLR (Pt. 921) 309, this Court held that it is wrong for a trial court to rely on a document when its authenticity has been seriously challenged and when its make was not called as a witness. According to the Court,

“It is therefore not mere admission of the document but issue of the serious attack launched on it. Coupled with that, is the authenticity of exhibit ‘T’ having been impugned by the Appellant, one would expect the respondent to call the maker “, (Underline mine/or emphasis).

By the decision in Trade Bank Plc, Vs. Dele Morenikeji (supra) when the Appellant challenged the authenticity of exhibits 14 – 148, the 1st Respondent should have called the alleged maker of the document i.e. INEC – to establish that the documents are genuine, yet, the Tribunal found as a fact that exhibits 14 – 14B were ballots papers used for the election in question. (See p. 45 of the records.) In the absence of explanation from the witnesses for the 1st Respondent as to the nexus between Exhibits 14 – 148 and the election of 21/4/2007, these exhibits cannot be the exhibits used in the 21/4/07 election that were found dumped.

Still on exhibits 14 – 14B. I have observed that, the Tribunal once again relied on exhibits 14A and 14B as evidence of the number of the political parties that fielded candidates for the said Senatorial District. I have read and read over the record of this appeal and there is nothing either in the petition or in evidence to show, that ballot papers were printed for only political parties that fielded candidates for the election in question. The 1st Respondent also did not call INEC who is responsible to print the ballot papers, used for the election and who conducted the election, to give evidence as to whether or not the said ballot papers attacked were printed for only political parties that fielded candidates for the Enugu North Senatorial District. Also, the 1st Respondent failed to tender or subpoena INEC to produce the ballot papers in its custody to show whether or not it was printed for only political parties that fielded candidates for Enugu North Senatorial District. Surprisingly, however, the Tribunal relied on the alleged dumped and abandoned ballot papers, (exhibits 14 – 148), not produced from the custody of INEC, and whose authenticity had been seriously challenged by the Appellant, and never tendered for the purpose of showing that votes were allotted to political parties that did not field candidates at the election. Alas, the Tribunal came to the conclusion that votes were allotted to some political parties that did not filed candidates at the election of 21/4/2007 in Enugu North Senatorial District. The Tribunal at p. 458 of the records said:

“We, therefore, finds as a fact that there was allotment of votes to some political parties which did not field candidate for the election. This is more so when exhibits 14A – 148, although tendered and admitted in evidence as ballot papers abandoned during the election, show clearly that the names and Logos of the affected parties herein above did appear on the ballot papers allegedly used for the election. We cannot chose(sic) our eyes to the contents of Exhibits 14-14B because there is no iota of evidence that they were not indeed the ballot papers used for the election “.

In the above holding of the Tribunal the following facts are deducible:

(1) That exhibits 14 – 14B were not tendered in proof of the allegation that votes were recorded for political parties that did not field candidates at the election.

(2) That exhibits 14 – 14B, were allegedly used for the election, meaning that there is no evidence before the Tribunal to show that they were indeed the ballot papers used at the election.

(d) Findings without proof.

It is trite that finding of court or Tribunal must be based on credible evidence. The Tribunal’s findings that, the allegation of mutilations, cancellations, omissions, allotment of votes to some parties that did not field candidates in the election, exhibits 14 -148 were ballot papers used and unused dumped and abandon all were not proved by evidence. The evidence acted on by the Tribunal in reaching the said findings was unreliable, unrelated to the 1strespondent’s case. In particular, the finding of the Tribunal regarding mutilations and cancellation of result sheets and omissions were based on deduction/analysis made by the 1st respondent’s (as petitioner) counsel which was annexed to his written address.

Finally, from the totality of what I have stated above, the Tribunal was therefore in error when it relied on exhibits 1 – 12, 14 – 14B in nullifying the election of the Appellant, when the impact or effect of any of those exhibits to the petition was not demonstrated in the open court by the 1st Respondent. Consequently, this issue No, 1 is resolve in favour of the Appellant.

ISSUE NO.2

The question under this issue is whether there was a proper evaluation of the evidence offered on both sides, by the Tribunal, before arriving at the decision that the 1st Respondent’s witnesses were not contradicted. This issue is distilled from ground 3 of the appellant’s grounds of appeal.

The Appellant submitted that the Tribunal did not evaluate the evidence of the parties when it says no contradiction against 1st respondent’s witness. He contended that the witnesses of the 1st Respondent were contradicted as shown in the record. This is because the testimonies of PW1, PW2, PW3, PW4 and PW5 were indeed contradicted considering the testimonies of the Appellant’s witnesses who asserted the opposite of the testimonies of the 1st Respondent’s witnesses. He submitted that the Tribunal therefore failed or did not properly evaluate the evidence of both the witnesses for the 1st Respondent and that of the Appellant as required by law.

The 1st Respondent in response contended that contrary to the contention of the Appellant, the Tribunal duly evaluated the evidence of the parties’ witnesses, and believed the 1st Respondent’s witnesses while disbelieving the witnesses for the Appellant and rightly concluded that the petition succeeds. He also submitted that the Tribunal did not state that the evidence of PW1, PW2, PW4 and PW5 were not contradicted as contended by the Appellant in his brief but it only says in its dictum, that it believed the evidence of the said three witnesses. That the Tribunal., applied the standard for the evaluation of evidence laid down in Mogaji v. Odofin (1979) 9 All NLR and which re-stated in the case of Nwakpo vs. Ewulu (1995) 7 NWLR (Pt.407) 286.

From the Appellant’s brief of argument, it is apparent that the contradictions complained of in this issue relates principally to the evidence of PW1 – PW5. While PW3 (Chief (Mrs) Maria Okwor) testified that there was no voting in her Ogbodu Aba village, in Udenu L.G.A; RW3 gave evidence that he visited a number of wards on the day of the election including Ogbodu Aba Primary School in Ogbodu ward, where he observed voting going on peacefully. He testified that he would be shocked to hear that PW3 says there was no voting at Ogbodu Aba. (See page 411 of the record). PW4 testified that he could not vote at Ugwuani Primary School in Aku Ward 4, Igbo-Etiti L.G.A. because no materials were provided and INEC officials did not turn up to conduct the election, while the Appellant, as RW3 testified that he visited Ugwuani Primary School in Aku, ward 4, in Igbo Etiti L.G.A. and saw that voting was going on peacefully. (See also p. 411 of the records). PW2 admitted that the materials and INEC Officials arrived at Obubueke polling station in Ukehi ward II, Igbo-Etili L.G.A, but because result sheets were not there, he refused to vote. But RW1 who testified that PW2 is his uncle and that he met PWZ at the polling station and that PW2 voted on that day. Also RW2 gave evidence that he voted at Ukehi and that there was no any malpractice noticed or reported there. RW1 also gave evidence, which the Tribunal accepted, that he monitored the election in the same car with the 1st Respondent and that contrary to the testimony of PW1 (1st Respondent), voting started in good time and that PW1 stated he voted about 2.30 P.M. The evidence of PW1 stated that he, PW1, voted about 4.08Pm. This is what the appellant described as contradictions.

The word ‘contradiction’, as described by Mohammed, J.S.C. in Dagayva vs. State, (2006) 7 NWLR (Pt.980) 63 – 677, paras. F – G. come from two Latin words – Contra, which means ‘opposite’, and dicere, which means, ‘to say’. Therefore in ordinary conversation, to contradict is, to speak or affirm the contrary. Hence in law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies, in, say, details between them. In otherwords, contradiction between two pieces of evidence goes rather to the essentiality of some being or not being at the same time. Whereas minor discrepancies depend rather on the person’s a statutes and capacity for observing meticulous details. On really what constitutes contradiction in evidence, Nnaemeka – Agu, J.S.C in Ayo Gbriel VS. The State (1989) 5 NWLR (Pt.122) 457 had this to say at page 468:

“A piece of evidence contradicts another when it affirms the opposition of what that other evidence has stated, not where there is just a minor discrepancy between them.

…. Two pieces of evidence contradict one another when they are by them selves inconsistent. On the other hand; ‘a discrepancy’ may occur when a piece of evidence stops short of or contains a little more than, what the other piece of evidence says or contains some minor differences in details. ”

In the instance case, applying the definition on the word ‘contradiction’ in the pieces of evidence by the witnesses to the respective parties in this case. I am incline to hold that the testimonies of PW1 – PW5 were indeed, contradicted seriously by the appellant’s witnesses. In any case the law does not say that there should be no contradictions in the evidence of witnesses, what it does say is that the contradiction should not be material. See Enahoro vs. Queen (1965) 1 All NLR 125. The contradictions found in this case are serious and material.

On whether or not the tribunal indeed stated that, the evidence of PW1-PW5, were not contradicted, a resort to the Judgment of the Tribunal must be made.

The Tribunal at page 455 of the records said:

” … We are convinced that the witness who testified for the petitioner are witness of truth. We believe Chief (Mrs.) maria Okwor- PW 3 that there was no voting in her Ogbodu Aba village in Udenu Local Government Area, and in any case, her testimony was not, and has not been, contradicted by any of the respondent’s or 1st respondent’s (Appellant’s) witnesses. In the same view we believe the evidence of PW2 PW1, PW4 and PW5 as herein before summarized” Underline mine).

From the above reproduced judgment it is glaringly clear that the Tribunal did state that the testimonies of the witnesses mentioned above were not contradicted.

On evaluation of evidence I wish to state that, court or tribunal is duty bound to evaluate the whole evidence adduced by both parties in order to come to the right conclusion. What is the meaning of the expression, ‘evaluation’? ‘Evaluation’ means the assessment of evidence as to give value or quality to it. See Onwuka vs. Ediala (1989) 1 NWLR (Pt.96) 182 at 2008. It is not for the judge to pick and choose which set of the prosecution’s witnesses to believe and which to reject but must evaluate the totality of the evidence adduced by the parties. That any decision arrived at without a proper or adequate evaluation of the evidence cannot stand.

I would like to emphasis again the attitude of appellate court to evaluation of evidence. It is pre-eminently the duty of trial court which saw and heard the witnesses to appraise evidence given at the trial. It is also its right to ascribe values to such evidence. A court of appeal may not therefore disturb a trial court’s judgment simply on the ground that it would have come to a different conclusion on the facts as long as the judgment of the trial court is supported by evidence rightly accepted by the court. It is not part of the duty of an appeal court to disturb the findings of fact made by a trial court except in circumstances where the inference from established facts are wrong or where the findings just do not flow or follow from the given evidence.

In the present case, the findings of fact of the tribunal to the effect that PW1 – PW5 testimonies were not contradicted by the testimonies of the Appellant, is perverse as it is not amply supported by the evidence placed before it. Therefore, there is reason why this court of Appeal should disturb that finding.

Finally on this issue for the reasons I stated I am of the view that there was no proper evaluation of the evidence offered on both sides by the Tribunal before arriving at the decision that the 1st Respondent’s witnesses were not contradicted. Therefore its finding under this issue is wrong. This issue is resolved in favour of the Appellant.

ISSUE NO.3

The question under this issue is whether the Tribunal was right in treating evidence elicited under cross-examination by the counsel for the 2nd set of Respondents (INEC) (at the Tribunal) from witnesses for the Appellant as mere after thought. This issue arises from ground 4.

The complaint of the Appellant under this issue is that the tribunal failed to accept and give a probative value to the evidence validly elicited under cross-examination, instead it was regarded as “mere after thought”, meaning not evaluated let alone accorded any probative value. But the 1st Respondent submitted that the Tribunal rightly treated the evidence as ‘mere after thought’. The Tribunal in its judgment, at pages 455 – 456 of the records, held as follows:

“RW1 never stated in his written statement the time he gave a lift to the petitioner nor the time that he voted. He merely stated in his sworn statement that the election started on time in his Development Centre. The details of time when he gave a lift to the petitioner and the time be voted were deliberately ‘smuggled’ in under cross examination by the learned counsel for INEC to mislead this Tribunal. The details of the various times given under cross examination of the 1st Respondent witness are merely “after thought.”

The law is clear and settled that a party be the plaintiff or petitioner, or a defendant or respondent is entitled to lead evidence through his own witness or by cross-examination of other’s witnesses in order to extract facts pleaded by either defence or plaintiff or petitioner as the case may be. In Bamgboye vs. Olarewaju (1991) 4 NWLR (Pt.184) p. 132 at 155, the Supreme Court said:

“It seems to me consistent with the principle that that evidence led during cross-examination on issues joined is not in admissible merely because such evidence is not supported by the pleading of the party eliciting the evidence.”

Also in Ogbeide vs. Osula (2004) 12 NWLR (Pt.886) 86 at 118, this court, on the issue of probative value of evidence elicited under cross-examination held that:

“To my mind, cross-examination is part of the proceedings and the answers are given under oath, hence, it has similar weight in relation to fads in contention. A situation where the answer is relevant and direct to the point in issue, can never be brushed aside simply because it comes through cross-examination.

The two cases referred to above, my Lords, did not admit any dichotomy between evidence elicited by parties on the same side from different witnesses. The paramount consideration, however, is that, such evidence has to be on issue joined by the parties. See Buhari VS. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 483, and Slee Transport Ltd. Vs. Oladipo Oluwasegun & Anor. (1973) 3 E.C.S.L.R. (Pt.11) 1176. In the latter case a police witness for the plaintiff had admitted during cross examination that there were no skid marks at the scene of accident but the plaintiff’s driver during his evidence – in – Chief had said that there were skid marks. No mention of skid marks was made in the pleading of the parties, Commenting on this, Sowemimo, J.S.C. (of Blessed memory) said at page 1183:

“The presence or absence of skid marks was not an issue before the learned trial judge and indeed the appellants who called the policeman as a witness did not ask him about any skid mark because it was not pleaded nor made part of their case. It was the counsel for the respondent who raised the matter under cross-examination. If the counsel for the respondent thought that the matter of a skid mark was relevant and material to the issue…………it was for him to plead if and lead evidence on it.” (italics mine).

In the instant case, the 1st Respondent pleaded in paragraphs 10 in his petition thus:

“10. The 3rd Respondent had scheduled to hold the election between the hours of 8.00 am – 3.00 p.m on the said 21st April 2007, But later changed the hours of election to 10.00 am – 5.30pm. The change of the hours of the election was not in accordance with the provisions of the Electoral Act 2006, and the purported election did not hold within scheduled time.

11. Election materials arrived very late …. Contrary to the provision of the Electoral Act 2006 and INEC Rules and Guide lines.
12. Voters across the Local Government Areas of the Zone that came to cast their votes could not vote because of late arrival ”

In reply the Appellant (as the 1st Respondent in paragraphs 10, 11, 16 of his Reply says thus:

“10. The 1st Respondent admits paragraph 10 of the petition only to the extent that the earlier scheduled time of 8.00 am to 3.00 pm was changed to 10. am – 5.00 pm and states that the said adjustment of the hours of the poll was a nation wide application and repeatedly announced over several electoral media all through that day of the election. In Enugu North senatorial Zone the said election was conducted in good time and in substantial compliance with the Electoral Act. 2006”.

11, The 1st Respondent denies paragraphs 11, 12 and 13 of the petition and maintains that electoral materials were dispatched and delivered to the electoral wards and polling centres in Enugu North Senatorial zone in good time and in sufficient quantities and that there were no diversion of electoral materials as alleged or at all.

16. The 1st Respondent denies paragraph 19 of the petition and repeats his earlier averments that electoral materials were delivered in good time and in sufficient quantity and there were no threats, harassment and intimidations of voters, agents or contestants.
17. The 1st Respondent denies paragraph 22 of the petition and maintains that the requisite electoral materials, in sufficient quantity were duly dispatched and delivered in good time to the appropriate electoral wards and polling centres and that the said election were conducted peacefully and in good time and without incidents of disappearance or diversion of materials in Nsukka, Uzo Uwani, Igbo Eze North and Igbo Etiti Local Government Areas as alleged or at all.

See pages 116 – 118 of the records.

Therefore from the state of pleadings, there is a rose the question, determination. It is whether voting started late and concluded earlier than scheduled. Witnesses in an attempt to resolve this issue. RW1 (who was the 118th respondent before the Tribunal) testified and was cross-examined by the parties before the Tribunal. See pages 408 – 410 of the records.

The said witness in his sworn statement deposed on unequivocally that the election started in his Development centre. Under Cross examination, the Appellant’s counsel sought to know how early the election started. The witness then went ahead to give details of the time he offered the 1st Respondent (as petitioner) a ride in his car and when the 1st Respondent voted. (See page 409 of the record). The Tribunal, however, in its wisdom held that the detail of various times given by RW1 were “after thought,” and were deliberately smuggled in by INEC Counsel on the ground that RW1 in his written statement on oath did not give such details.

It is evident from the above extract of the pleadings that, issue as to when the voting started and closed, was joined by the parties. Therefore, evidence extracted from RW1 by the INEC counsel, during cross examination can be used, in this circumstance against the 1st Respondent since the material fact (i.e. how early the voting started and closed,) relating to the evidence was pleaded by the party seeking to make use of it. Having pleaded the material fact, the piece of evidence is valid evidence.

Having regard to the foregoing circumstances therefore, I am of the view that the Tribunal was wrong when it found and held that a legitimate answer elicited from RW1 aimed at resolving a vital issue in the petition, was a mere after thought. The said answer is relevant, and ought to have been admitted and acted upon by the Tribunal. This issue is also, resolved in favour of the Appellant.

ISSUE NO.4.

The questing arising from this issue is, whether the Tribunal was correct in nullifying the said election on the ground that there was no specific denial of the 1st Respondent’s direct and specific allegations of “allotment of voles to parties which did not field candidates”, considering the state of pleadings of the parties. This issue covers ground 5 of the Appellant’s ground of appeal.

In his brief of argument, the Appellant submitted that the Tribunal was wrong to hold that there was no such specific denial of the said allegation. This is because, the Appellant specifically in paragraph 22 of his reply, averred that he denied paragraph 28 of the petition. That the averments in paragraphs 1,3, 5,9,20,22 and 23 of the Appellant’s reply variously denied the averments in paragraph 28 of the 1st Respondent’s petition as it relates to allotment of votes as an irregularity contrary to the findings of the Tribunal. He urged this Court to resolve this issue in his favour.

In his response, the 1st Respondent in his brief of argument submitted that the Tribunal was right when it held that the Appellant failed to deny the allegation of allotment of votes to parties whose name and Logo did not appear in the ballot papers, and the case of Lewis & Peat NR 1 v. Akhimien (1976) 1 FNR 8 was relied on to contend that such Appellant’s traverse of the allegation constituted mere and insufficient denial. He urged this Court to resolve this issue against the Appellant.

From the Appellant’s submission it seems his complaint against the Tribunal is on that Tribunal’s holding that, the 1st Respondent’s allegation in paragraph 28 of his petition was not specifically and effectively traversed by the Appellant. And here i will deal with paragraphs 28 of the petition, and paragraph 22 of the Reply.

“28, The election was marred by irregularities, discrepancies, mutilations, omissions, alteration and cancellations of result sheets and documents suggestive of manipulations of scores, illegalities and improper conduct in the conduct of the purported election. Parties whose names and Logos did not appear in the ballot papers had scores recorded for them in the result sheets i.e. Forms EC8A(i), EC8B, and EC8(C).

(underline mine)

“22. The 1st Respondent (appellant) denies paragraph” 27 and 28 of the petition and maintains that there were no malpractices or irregularities, illegalities, discrepancies, and mutilations in the said election.” Sec p.118 of the records.

The tribunal found that paragraph 22 is not an answer to paragraphs 28 of the petition as required by the rules of pleading. It held at p.457 – 458 of the records as follows:

“From the state of the pleadings of the petitioner and the 1st Respondent, it is crystal clear that there is no specific denial of the petitioner’s direct and specific allegation of allotment or votes to parties which did not field candidates at the election under dispute.

The Respondents (Appellant herein inclusive) are therefore, deemed to have admitted the allegation or allotment of votes by INEC to parties which did not participate at the election.” (under line mine).

I entirely disagree with this finding. I am not unmindful of the state of our law of pleading which states that essential allegations should be specifically traversed. See L.C.C. VS. Ogunbiyi (1969) 1 All NLR 297, In determining whether or not a particular averment is sufficiently denied, all the paragraphs of the statement of defence or Reply, in the case must be read together or considered. It is not part of our rules of practice and procedure that a denial should minutely touch on every bit of averment in a petition or statement of claim. See. A.G. Anambra State vs. Onuselogu Ent. Ltd. (1987) 4 NWLR (Pt.66) 547. In the instant case, had the Tribunal taken into consideration the whole averments in the replies of the Appellant (as the 1st respondent in the petition) it would not have found that there was no specific denial of allegation of allotment of vote to those political parties that did not participate in the election in dispute.

Similarly, to find out what should have been deemed to have been admitted in the pleadings of the defendant, it is necessary to consider the entire statement of defence or reply including the general traverse as a whole. See Pan Asia Africa Co. Ltd. Vs. Nat Ins. Co. (Nig) Ltd (1982) 9 S.C.1 at 48 where Obaseki, J.S.C. held that, whereas the defendant is expected to deny every material averment in the statement of claim or petition, expressly or by necessary implication, he is not to be deemed to have admitted a point if it is clear from his statement of defence or reply read as a whole that he did not intend to admit the facts. In the same vein, in the case of Ogo Ajao & Ors vs. Opoola Alao (1986) 12 S.C. 193 at 244, Oputa, J. S.C. expressed a similar opinion thus:

“To constitute a traverse it is not necessary that every paragraph of the statement of claim should be specifically denied. That may be done. But what is essential is that the case put forward by the defendants conflicts on material particulars with that put forward by the plaintiff and thus put the different material averments in issue.” (under line mine)

Guided by the above authorities, it seems to me that taking the totality of the reply in which the Appellant pleaded inter-alia, “there were no malpractices or irregularities illegalities, discrepancies and mutilations in

the said election.” That apart, in this case which raises the issue of malpractices, or irregularities and non-compliance with the provisions of the Electoral Act, 2006, the 1st Respondent should not and cannot succeed on admission real or imagined on the pleadings of the Appellant.

In the light of the foregoing, it is my considered view that the 1st respondent did not establish the alleged allotment of votes by INEC to parties which did not participate at the election, and that the finding by the Tribunal that it was proved by admission in the Appellant’s reply to the petition is erroneous. Therefore this issue is resolved in favour of the Appellant.

ISSUE NO.5

The question under this issue is whether the Tribunal was right in holding that the allegations of:

1. Non-delivery of election materials,
2. Non-voting,
3. Cancellation and mutilations of some results,
4. Omission or exclusion of Petitioner.
5. Recording of votes for some political parties which did not field candidates for the election.
6. Dumping and abandonment of some used and unused ballot papers, made in the petition by the 1st Respondent are Civil in nature and are therefore to be proved on the balance of probabilities? This issue is distilled from ground 7 of the appellant’s grounds of appeal.

The Appellant in his brief of argument submitted that these allegations are clearly criminal offences punishable with fine or imprisonment within the contemplation of part viii of the Electoral Act, 2006 and as such they are to be proved beyond reasonable doubt. He further stated that the Tribunal was wrong in holding that the said allegations made by the 1st respondent in his petition are civil in nature and are to be proved on the balance of probabilities. He urges the court to resolve this issue in favour of the appellant.

In response, the 1st respondent submitted that the Tribunal was legally justified in holding that the irregularities and non-compliance it found proved, were civil in nature. He submitted the Tribunal evaluated the parties’ evidence and weighted them in the imaginary scale of justice and concluded that the petitioner’s evidence weigh more. He also submitted that, whether the allegations were seen from civil arena or criminal arena, the proof produced by the 1st Respondent met both standard. He therefore urged the court to resolve this issue against the Appellant.

The above enumerated irregularities are all powerful allegations. In order to see whether or not they fall with in the civil arena as held by the Tribunal it is necessary to examine the irregularities.

(1) Non- delivery of election materials. In paragraphs 17, 21, 22 and 23 of the petition, at pages 5-6 of the records, the 1st Respondent averred that election materials such as Form EC8A(1) were not supplied because the materials were hijacked. This in my opinion is a complaint against the conduct of at least the INEC Official. This is clearly on allegation of Criminal offence punishable under part viii, section 130(1) of Electoral Act 2006.

(2) Non-voting – The 1st Respondent averred that voting did not take place and yet votes were returned and results declared. This is also a criminal allegation contrary to section 130(3) of the Electoral Act, 2006, and section 136(1)(d) of the said Act.

In Sabiya vs. Tukur (983) II S.C. 109, this court held that, allegation of inflation with non-existent votes is another way of alleging falsification of result.

(3) Cancellation and mutilation of result, omission or exclusion of the petitioner in some result sheets, the Supreme Court in Buhari VS. Obansanjo (2005) 13 NWLR (Pt.941) 1, held thus:

“Manipulation or alteration of election results is a criminal offence and the proof required is high, that is beyond reasonable doubt. ”

Recording of votes of some political parties which did not field candidates for the election and dumping and abandonment of some used and unused ballot papers are corrupt practices and are clearly criminal offences under the Electoral Act, 2006, See sections, 125, 133, 135, and 138 of the Electoral Act, 2006/ Therefore, one may see that these allegations stated above, which were held to fall in civil arena, are clearly, allegations of commission of crimes i.e. criminal offences, and are punishable with fine or term of imprisonment within the contemplation of part viii of the Electoral Act, 2006. And by the position of the law i.e. section 138 of the Evidence Act, are to be proved beyond reasonable doubt.

From the record, the Tribunal did not refer to the ‘quantitative’ and qualitative credible and convincing oral evidence and documentary evidence adduced by the 1st Respondent in proof of these allegations of committing crimes, which must be proved beyond reasonable doubt. The Tribunal, instead relied on the purported analysis made by and annexed to the address of learned silk to the 1st Respondent and held that the said criminal allegations have been proved beyond reasonable doubt. It should be noted that I have stated in this judgment, that such analysis annexed is not, and cannot be an evidence to be acted/relied on in a just decision. In Edet vs. Eyo (1999) 6 NWLR (Pt.605) 18 at 29 per Oboadina, JCA held:

“The law is settled that, in an election petition where petitioner makes allegation of crime, as in this case, against a respondent and he makes the commission or crime, as the basis of his petition, 5.138(1) of the evidence Act, 1999 imposes a struck burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge this burden on the petitioner to prove the crime beyond reasonable doubt. I the petitioner fails to charge this burden his petition must fail.”

I have made mention of certain exhibits, i.e. 1 -12, 14, – 148, tendered by the 1st Respondents. These documentary evidences and the oral evidence as thus adduced by the petitioner before the Tribunal, as far as the onus of proof goes, are not sufficient for the Tribunal to hold that the 1st Respondent has proved his case.

For the foregoing, the Tribunal was in error when it held that the said allegations fall more in civil arena and that standard of proof is on the preponderance of evidence. This issue therefore is also resolved in favour of the Appellant.

ISSUE NO.6

This issue deals with the question of whether the provisions of paragraphs 3(8)(B), 4 (7) and 5(7) of the Election Tribunal and Court Practice Direction, 2007 have whittled down established standard of proof required of a petitioner in an election petition.

In his brief of argument, the Appellant submitted that the said provisions have not whittled down the established standard of proof required of petitioner in an election. For a petitioner to be successful he must discharge the onus of proof on him, as per as the given standard of proof as statutorily enacted. He further submitted that even though paragraph 4(7) of the practice Direction empowers the tribunal or court to limit or stream line witnesses to be called by each party at the hearing of the petition, this, however, does not relieve such a party from calling the best evidence available from amongst the streamlined witnesses which is sufficient to prove the parties’ case. That the evidence of 5 witnesses who gave evidence that they did not vote in their different 5 polling booths out of the 1,084 polling booths in the 6 Local Government Areas, making up the Enugu North Senatorial District cannot be said to have captured the entire constituency. See Buhari vs. Obsaojo (supra).

In his response, the 1st Respondent submitted that the said provisions of the Election Tribunal and court Practice Direction 2007, did not affect the standard of proof but the number of witnesses to be called. That the streamlining the number of witnesses is to avoid calling a host of witnesses to establish a particular point at issue. The case of Stephen Oteri v. The State (1986) 4 S.C. 222 at 259 per Oputa, J.S.C. That the petitioner discharged this burden by the witnesses he produced. He said that Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1 is inapplicable. He urges this issue to be resolved in favour of the 1st Respondent.

In its judgment, the Tribunal stated as follows:

“We have since crossed over the judicial bondage of calling a specific or a particular number of witnesses before a party can succeed on his claim.”

Having stated the submissions of both parties, I hasten to say that the said provisions of the Election Tribunal and Court Practice Directions relating to streamlining of witnesses have not whittled down the established standard of proof required of a petitioner in an election petition. To be successful, a petitioner, must discharge the onus of proof on him, as per the given standard of proof as statutorily enacted.

Paragraph 4(1) and 7 of the Election Tribunal and Court Practice Directions, 2007 states:

“4(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence,

any fact required to be proved sat the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court.”

(2) ………………………………

(3) ………………………………

(4) ………………………………

(5) ………………………………

(6) ………………………………

(7) The tribunal or court may, at or before the hearing of a petition order or direct that the number of witnesses who may be called at the hearing be limited as specified by the order or direction,”

It is clear from the provisions of paragraph 4(1) of the Practice Direction, 2007 that it is subject to the provisions of evidence Act in matters relating to evidence. I agree entirely with the Appellant’s contention that even though paragraph 4(7) of the Practice Direction empowers the Tribunal to limit or streamline witnesses to be called by each party at the hearing of the petition, this does not relieve such a party from calling the best evidence available from amongst the streamlined witnesses which is sufficient to prove the party’s case.

In essence, the law of evidence require a party to prove his case by calling the best evidence available. See Onu, J.S.C in M.C.C. Ezeba vs. S.O. Ihenem (2004) 14 NWLR (Pt. 894) 617 at 660. In emphasizing the need to always present the best evidence available, Pats-Acholonu J.S.C. (of Blessed Memory) in the case of The Attorney-General of Anambra States. The Attorney-General of the Federation & Ors. 22 NSCQR (Pt. II) 572 at 625 held thus:

“It is Long settled that a party must out in his case by the best available evidence. It is fundamental principle of our Legal system in respect of facts averred that, weaker, tenuous or insufficient or feeble ineffectual evidence given then it would amount to a case of failure of poof.”

In the instant case, the 1st Respondent’s witnesses were streamlined to eleven (11) witnesses but he called only five (5) witnesses to cover across the Senatorial District, and in his brief contended that they are enough to sustain his petition. He does not require the production of host witnesses. I regret to disagree with this 1st Respondent’s contention. The evidence of five witnesses who gave evidence, that they did not vote in their different five polling booths out of the 1,084 polling booths in the 6 Local Government Areas, constituting the Enugu North Senatorial District, cannot be said to have captured the entire constituency. In Buhari v. Obasanjo (supra), it was contended that evidence of 3 witnesses from Imo State who testified for the petitioner captured the entire State, and the Supreme Court refused to be persuaded by such argument and instead held thus:

“In my opinion, when the pieces of testimonies of the 3 witnesses are put together, it cannot correctly be held that election in Imo State was substantially affected since the evidence did not cover the whole State but small section of it. In my opinion the Court of Appeal was right In holding that the evidence of the witnesses did not substantially affect the election in that State.”

I am bound by this decision of the Apex Court. Applying this principle of law, I am of the view that the said five witnesses cannot be said to have captured the entire constituency to warrant the tribunal findings on facts that 1st Respondent discharged the burden by the said 5 witnesses he produced, and I so hold. The answer to the above issue is answered in negative. This issue accordingly, is resolved in favour of the Appellant.

ISSUE NO.7

This issue is on whether the Tribunal was correct in placing the burden of proving how the non-compliance and irregularities affected the result of the election on the Appellant. The issue arose from grounds 9 and 10 of the Appellant’s grounds of appeal.

In his brief of argument the Appellant submitted that in reaching its conclusion that, “the Respondents have failed woefully to lead evidence to show that the irregularities did not have any effect on the purported election” the tribunal relied on the cases of Awuse vs. Odili (2004) 8 NWLR (Pt.876) 481 at 520; Ajadi vs. Ajibola (2004) 16 NWLR (Pt.898) 91 and Buhari vs. Obasnjo (2005) 2 NWLR (Pt.910) 214 at 370. He submitted that the Tribunal misunderstood and misapplied the principle in the said cases and arrived at the wrong conclusion when it held that the onus of proof is on the respondents before it.

In his response, the 1st Respondent submitted in his brief that, the Tribunal properly ascribed the burden of proof in this case and that the Appellant misconceived the views expressed by the Tribunal in the segment of the judgment.

I have carefully gone through both the submissions of the parties in their respective briefs, and also, I have read the judgment of the Tribunal. At page 468 of the records, the Tribunal said:

“We wish to add that since the respondents have failed woefully to lead evidence to show that irregularities ably proved by the petitioner, did not have any effect on the purported election the presumption of regularity, correctness and authenticity of the purported election into Enugu North Senatorial District held on 21/4/07 has been legally and factually rebutted by the petitioner ….

They are very substantial and purported election cannot be saved by the provision of section 146 of the Electoral Act, 2006.”

From the above quoted segment of the Tribunal’s judgment, it, clearly seems to have placed the burden of proving how the non-compliance affected the result of the election on the Appellant (as the 1st Respondent before the Tribunal), and the Tribunal relied on the cases of Awuse vs. Odili (supra); Ajadi vs. Ajibola, (supra) and Buhari vs. Obasanjo (supra). With respect to the learned chairman and members of the Tribunal, I regret to say that they misunderstood and misapplied the principles of law contained in the said cases. In the case of Awuse VS. Odili (supra) p.520, the Court of Appeal did not hold that the onus is on the respondent in the Court of first instance, to show how non-compliance affected the result or the election, rather the Court of Appeal stated the general principle that, the onus of proof is not static, it shifts like any civil case from one party to the other and finally rests on the party who would fail if no evidence or further evidence is given. In that case, the Appellant was the petitioner in the Tribunal and he lost both in the Tribunal and on appeal, because he was unable among other things, to show how the alleged non-compliance affected the result of the election. Contrary to the views and conclusions of the Tribunal this court in Ajadi vs. Ajibola (supra) at p.171 of the report, per ADEKEYE, JCA (as he then was) said:

“To make a case for nullification the petitioner or Appellant needs to go further and prove that the breach of the provisions of the Act resulted in the election not being conducted substantially in accordance with the principles of the Act and or that the non-compliance substantially affected the result of the election.” (Under line mine)

Guided by the above decisions of this court in the above said two cases I am of the view that the Tribunal was therefore erred when it relied on the said eases (at page 53 of the record) as the basis for its conclusion that the onus of proof is on the respondents below.

To further appreciate the mis-appreciation and consequent misconception of the views expressed by this court in Buhari VS. Obasanjo (supra) by the Tribunal I refer to the contribution of EJIWUMI, J.C.C., at p.222 of the case on appeal to the Supreme Court, where he said:

“After due consideration of the cases above, I have no doubt that the learned Justices of the Tribunal rightly interpreted the provisions of see, 135(1) of the Electoral Act, This -in-effect means that the onus lies on the appellant to establish, first, substantial non-compliance and secondly, that it did or could have affected the result of the election. It is after the appellants have established the foregoing that the onus would have shifted to the respondents to establish that the result was not affected. ..

It should be remembered that the issue in the court of Appeal which sat in exercise of its original jurisdiction in the presidential Election petition was at what stage does the onus of proof shift to the respondent. (Under line mine)

It seems to me that, the Tribunal notwithstanding the avalanche of legal authorities cited before it, swayed in placing the burden of proving how the non-compliance affected the result of the election of the Appellant and INEC (as respondents) by a 1963 decision of the Supreme Court reported in 2007, i.e. Bassey vs. Ekpo A. Yong (2007) 3 EPR 456 at 465. My Lords, this case was decided on 22/1/1963 and the decision, as I observed, was based on the provision of regulation 34 of the Election (House of Assembly) Regulation 1961 which provides the time when the voting will start and closed. This case, my Lords, cannot be an authority for the conclusion reached by the Tribunal, because there is no provision in the Electoral Act, 2006 stating the time voting will start and when it will end. What is provided in section 47 of the Electoral Act 2006 is that, INEC will fix the time and hour of voting.

Our courts, my Lords, .are unanimous that, based on the principle that he who asserts must prove, which has a secure place in sections 173 (a) and 138 of our Evidence Act, the petitioner must not only prove non-compliance, he must go further to show how the alleged non-compliance affected the result of the election. This is implicit in section 146(1) of the Electoral Act, 2006. While construing similar provision, GOEBE, JCA. (as he then was) said, in Badawi vs. Adam (1999) 3 NWLR (Pt.594) 303 at 318, that Election Tribunal was wrong in nullifying the election when the petitioner did not show how the votes corruptly obtained could have tilted the result In his favour.

Finally on this issue, I hold that the burden of proving how the alleged non-compliance affected the result of the election is on the petitioner.

Having reached that decision, this issue is resolved in favour of the Appellant but against the respondents.

ISSUE NO.8.

On this issue, the question is whether the Tribunal was correct in holding that even though the 1st Respondent (failed to prove that the Appellant was directly or indirectly involved in the alleged malpractices he (the Appellant) will not be allowed to benefit from the alleged malpractices. This issue is raised from ground 11 of the Appellant’s grounds of appeal.

In his brief of argument, the Appellant submitted, since there is a finding of fact by the Tribunal that the alleged wrongful act was neither committed by the Appellant nor any of his agents acting under his general, the election and return of the Appellant ought not to have been nullified.

In response, the 1st Respondent contended that where an umpire like INEC on its adhoc staff is directly indicted or responsible for the irregularities or malpractices established, the purported winner of the election should not be allowed to benefit from the irregularities.

From the records, it is evident that the Tribunal agreed that the Appellant was not involved directly or indirectly in the alleged irregularities or malpractices, nevertheless, it held that since he benefited from the said irregularities and malpractices the election will be nullified. See p. 469 of the records.

My Lords, the case of malpractices, constitute allegation of commission of criminal activities, in an election petition, the petitioner had the burden of proving the allegation beyond reasonable doubt. To discharge the burden, it must be established that the Respondents, particularly, the 1st Respondent before the Tribunal (Appellant herein) committed the act personally or aided, abetted, counseled or procured the commission of the alleged wrong doings. Moreover, where the acts were committed by an agent or servant, there must be evidence that the agent was permitted to act

in that capacity or had a general authority to act. Our law did not say that if the winner of the election benefited from the alleged irregularities and or malpractices then the election or votes will be nullified. It says, “participated either directly or indirectly.” In Wali vs. Bafarawa (2004) 16 NWLR (Pt.898) 1 at 44-45 this Court, Kaduna Division, said:

“A respondent who is a candidate in an election cannot be held responsible for what other people did the form of unsolicited act of which the candidate or his agent was ignorant.”

In Adediji vs. Kolawole (2006) 2 EPR. 70 at 92, this Court held that the petitioner must not only prove the alleged corrupt practices and malpractices, but he must show that same was committed in favour of the winner of the election with his knowledge or consent by person acting under his general or special authority. The position of our courts on this issue is in formed by the Latin maxim, which means, no one can be punished for the crime of another. See Boni Haruna vs. Modibbo (2006) 2 EPR. 664. at 675.

My Lords, permit me to state that, since the Tribunal found as a fact that the alleged wrongful act was neither committed by the Appellant nor any of his agents acting under his general authority the election and or return of the Appellant ought not to have been nullified.

In this case, the 1st Respondent did not legally prove any thing against the Appellant to justify the nullification of his election and the Tribunal was definitely wrong to have so ordered under this issue.

Having resolved all the eight issues in favour of the Appellant but against the respondents, there is merit to this appeal and I also allow same.

The decision of the Tribunal in petition No. NAGL/EPT/EN/NA/31/07 delivered on 11/12/07 is hereby set aside. The election of the Appellant and return by the 2nd Respondent are upheld. Appellant is entitled to costs of this appeal put at N30,000.00 against the 1st Respondent.

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Other Citations: (2009)LCN/3512(CA)