Alhaji Muhammad Attahir & Anor. V. Ibrahim Khalid Mustapha & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This appeal arose out of the petition dated and filed on 25/05/07 at the National Assembly Election Tribunal, Holden at Kaduna. The ground of the petition is that –

“The purported election of the 1st Respondent into the House of Representatives Abuja on 21/04/07 was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act.”

The particulars of the forgery were that the votes recorded for the 1st Respondent were incorrect because the statement of results of various polling stations were altered to increase the scores of the 1st Respondent and reduce those of the 1st Petitioner.

The particulars of non-compliance were that the Petitioner will rely on Forms EC8A, EC8B, EC8C, EC8D and other documents to show that the Respondents misconducted the Election in Soba, Rahama, Gamagira, Danwata, Maigana, Kinkiba, Richifa, Kwasallo, Turawa Danwata and Garu in order to favour the 1st Respondent.

The Appellants as Petitioners prayed the lower Tribunal for the following reliefs:-

1. “A declaration that the 1st Respondent was unlawfully declared or returned as the elected member of the Soba Federal Constituency in the Federal House of Representatives Election (hereinafter called the Election) held on 21/04/07.
2. A declaration that the Soba Federal House of Representatives election held on 21/04/07 be set aside on the Grounds of corrupt practices and non-compliance with the provisions of the Electoral Act.
3. An order declaring the 1st Respondent who scored the majority of the lawful votes cast in the election as the duly elected member of the Federal House of Representatives representing Soba Federal Constituency.

IN THE ALTERNATIVE-

4. An order directing that a fresh election into the Federal House of Representatives be held in Soba Federal Constituency.
5. Any other order(s) as the Tribunal may deem fit to make Pursuant to the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2006.
6. The cost of the petition.”

After the pre-hearing sessions, the lower Tribunal issued report in which 3 issues for determination were agreed and settled.

(a) “Whether the declaration or return of the 1st Respondent was lawful.

(b) Whether there are facts to show that the election was marred by corrupt practices or that the election was conducted in contravention of the provisions of Electoral Act.

(c) Whether the 1st Respondent won the election by majority of lawful votes.”

The appellants as petitioners called 12 witnesses and tendered Exhibits A-K. The 1st & 2nd Respondents did not call any witness although they filed deposition of 11 witnesses which they never adopted and tendered Exhibits L-W from the bar. The 3rd to 16th Respondents did not call any witness although they filed the deposition of one witness which they never adopted. On 23/10/07. The Petitioners’ counsel adopted his written address filed on 08/10/07; the 1st & 2nd Respondents’ counsel adopted his written address filed on 16/10/07; and the 3rd to 16th Respondents’ counsel adopted his written address filed on 19/10/07.

On 08/11/07, the Tribunal delivered its judgment holding that the 1st Respondent was duly elected by a majority of lawful votes cast in the election, the petitioners having failed to rebut the presumption that the results declared by the 3rd Respondent was genuine and authentic.

This appeal is against the judgment of the Tribunal. The Notice of Appeal dated and filed on 21/11/07 contains 8 grounds of Appeal and 3 reliefs.

We heard this appeal on the 12th May, 2008, Mr. K. Babatunde counsel for the Appellants adopted his brief of argument dated and filed on the 14/12/07 and urged the court to allow the appeal and grant the reliefs sought. Mr. Y. Mahmuod for 1st and 2nd Respondents adopted his brief of argument dated 18/12/07 and filed on 21/12/07 and urged the court to dismiss the appeal. Miss I.K. Ekeada for the 3rd to 16th Respondents adopted her brief of argument deemed filed on 14/4/08 and urged the court to dismiss the appeal.

From the eight grounds of appeal the learned counsel for the Appellants decoded five issues for determination. The issues are:-

1. “Whether the Tribunal erred in law in holding that the 1st Respondent was duly elected by the majority of lawful votes cast in the election.
2. Whether the Tribunal erred in law in not taking judicial notice of the massive rigging that characterized the 2007 Election in Nigeria including the election into the House of Representatives.
3. Whether the Tribunal erred in law in striking out the names of the 17th -29th ‘Respondents to the petition on the grounds that the Respondents are not necessary parties.
4. Whether the Tribunal erred in law when it held that the Appellants had not discharged the burden of proving their case and burden of proof had not shifted to the Respondents.
5. Whether the Tribunal was right to hold that the evidence of PW1, PW3, PW4, PW9, PW11 and PW12 was hearsay evidence and inadmissible in law; and there is lacuna in the evidence adduced by the Appellants.”

The learned counsel for the 1st & 2nd Respondents did not formulate any issue for determination, so he is deemed to have adopted the issues formulated by the Appellants. The 3rd to 16th Respondents adopted the issues as distilled by the Appellants.

ISSUE No. 1:

Whether the Tribunal erred in law in holding that the 1st Respondents was duly elected by majority of lawful votes in the election.

On this issue learned counsel for the Appellants submitted that the Tribunal erred in law when it held that the 1st Respondent was duly elected by majority of lawful votes cast in the election, that this submission in premised on the fact that there is clear evidence that the election was characterized by massive rigging by agents of the Respondents and that what took place at the Soba Federal Constituency on 21/04/07 did not represent the casting of lawful votes in any conceivable properly conducted election much less culminating in the election of the 1st Respondent. That the evidence of PW2, PW5, PW6, PW8 and PW10 clearly showed that the Election was marred by diverse corrupt practices in contravention of the provisions of Sections 131, 136 and 138 of the Electoral Act.

Learned counsel for the Appellants contended that the fact that the Respondents did not avail themselves of the provisions of Section 137(2) of the Evidence Act to adduce evidence in rebuttal of the overwhelming evidence of PW5 & PW10 that no election took place on 21/04/07 or at any other time whatsoever due to the corrupt acts of the Village Head of Richifa who took election materials to his house and the forest so as to ensure that lawful election did not take place. That the Respondents corroborated the averments contained in paragraph six of the petition with respect to voting intimidation and rigging by virtue of their depositions to that effect which the Respondents never countered. Learned counsel urged us to hold that what took place on 21/04/07 could not have been lawful election sufficient to justify that the 1st Respondent was duly elected by virtue of lawful votes cast. Learned counsel for the Appellants referred to the testimonies of PW2, PW5, PW6, PW8 and PW10 and contends that their graphic testimonies as highlighted to underscore diverse corrupt practices that characterized the election.

Learned counsel for the Appellants argues that the 1st & 2nd Respondents in paragraph 6 of their Reply to the petition admitted the averment of paragraph 6 of the petition dated 31/5/07 and that the 3rd to 16th Respondents in paragraph 2 of their Reply to the petition clearly admitted paragraph 6 of the petition. Learned counsel contends that the gist of paragraph 6 of the Appellants’ petition is that the 4th Respondent wrongly and illegally returned the 1st Respondent as the winner in the election.

Learned counsel for the Appellants submitted that the admission made by both 1st and 2nd Respondents and 3rd to 16th Respondents constitutes formal admission under Section 15 of the Evidence Act – reference made to BUHARI V OBASANJO (2005) 2 NWLR (PT.910) 241 AT 483-484. Counsel for the Appellants argues that the 1st Respondent could not have been elected by lawful votes cast in the light of the admission by the Respondents to the fact that the Respondent was wrongly and illegally returned as the winner of the election. That it is trite that the word lawful connotes things done according to just and proper procedure which the election of 21/04/07 did not represent in all material particulars.

Learned counsel for the Appellants contends that in a situation where the supporters of the 1st Respondent carried knives and there was threat and intimidation everywhere as contained in the testimony of PW1 and PW4; where ballot papers and ballot boxes were taken to the houses of District and Village Heads which were not designated polling centres as contained in the testimony of PW2; where election materials were seized from INEC personnel preventing election from taking place; where there was hardly any evidence to show that majority of the voters were not able to cast their votes such scenarios could neither be said to amount to non-compliance incapable of affecting the result of the election. Learned counsel submits that Section 146 of the Electoral Act cannot apply to prevent the invalidation of the election of the 1st Respondent as credible evidence shows that it was neither lawful nor valid to justify the election. Learned counsel for the Appellants further submits that the misconduct of agents of the 1st and 2nd Respondents culminating in the Electoral Forms not properly filled, not signed at all by party agents, where cancellations are not counter-signed or election materials not stamped by electoral officials even where such results were declared ought not to be lawful or represent a majority of the votes cast in the said election.

It is submitted for the Appellants that Forms EC8A(II) and EC8B(II) which were used in the polling centres and Ward collation centres of the constituency clearly showed serious cases of inflation of votes purportedly cast and yet the same results were declared as the majority of lawful votes cast in favour of the 1st Respondent. That this declaration is in contravention of Section 54(2) of the Electoral Act and the proper thing to do in this circumstance is to hold such election null ad void.

Learned counsel for the Appellants urged the court to examine critically Exhibits L-W tendered by the Respondents which showed illegal alteration and cancellation of results. Counsel urged us to hold that Section 128 of the Evidence Act is applicable to justify presumption of alteration of Exhibits L-W. That no election results declared on the basis of such presumption is or can be seen to be a reflection of the wishes of the lawful majority of voters.

Learned counsel for the Appellants further submitted that the 3rd – 16th Respondents and their agents grossly violated the provisions of Section 21 of the Electoral Act 2006 which provides for an integrated register of voters before the conduct of any election by using two different voters’ registers in the conduct of the election. That the illegal action of the Respondents is reflected in Forms EC8A(II) and EC8B(II) Exhibits L, M, N, O, P, Q and U tendered by the Respondents. That the above evidence constitutes corrupt practices which contravene the provisions of the Electoral Act, that no lawful or valid election could have been conducted on the basis of such gross violation and non-compliance with the Electoral Act by the Respondents. That the petitioners are the victims of the malpractices perpetrated by the Respondents and that the evidence as shown provided the basis for the noncompliance with the Electoral Act and that it is of such a nature to substantially affect the result of the election.

Learned counsel for the Appellants argues that through the contradiction in the voters’ register provided basic and conclusive proof of over-voting on the part of the Respondents and the results so declared could not have been representative of the majority of the lawful votes cast in the election – reference made to HARUNA V MODIBBO (2004) 16 NWLR (PT.900) 487. Learned counsel urged us to resolve this issue in favour of the Appellants.

In his response to the submissions of learned counsel to the Appellants on Issue No.1, learned counsel for the 1st & 2nd Respondents submitted that the result declared by INEC was that the 1st Respondent polled 74,493 votes as against the 1st Appellants 18,185 votes, that there is in law a presumption that the result of any election declared by the Returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity to rebut the presumption – reference made to Sections 115, 148 and 149 of the Evidence Act, ABIBO V. TAMUNO (1999) 4 NWLR (PT.599) 344. Learned counsel for the 1st & 2nd Respondents further submitted that the Appellants as TAMUNO (1999)4 NWLR (PT.599)344. Learned counsel for the 1st & 2nd Respondents further submitted that the Appellants as petitioners merely tendered few results and did not call their agents at the polling units to testify as to what happened while the Respondents tendered all the results which were not impeached by the Appellants as petitioners.

In his response to the submissions of the learned counsel for the Appellants, learned counsel for the 3rd to 16th Respondents referred to and reproduced paragraph 6 of the Appellants’ petition at the lower Tribunal and submissions of the counsel to the Appellants to the effect that –

(a) that there was hardly any evidence to show that majority of the voters were able to cast their votes;

(b) that section 146 of the Electoral Act cannot apply to prevent the invalidation of the election of the 1st Respondent as credible evidence shows that it was neither lawful nor valid to justify the election.

(c) That Forms EC8A(II) and EC8B(II) which were used in the polling centres and ward collat ion centres of the constituency clearly showed serious cases of inflation of votes purportedly cast.

(d) That the 3rd to 16th Respondents violated the provisions of Section 21 of the Electoral Act, 2006 which provides for an integrated register of voters before the conduct of any election.

Learned counsel referred to DR CHRIS N. NGIGE V PETER OBI & ORS (2006) 14 NWLR (PT.999) 1 AT 117 and also the Respondents’ Reply to the petition at pages 62 – 64; 86 – 90 of the printed record particularly paragraph 7 of the 3rd to 16th Respondents Reply to the petition on page 87. Learned counsel for the 3rd to 16th Respondents submitted that the Appellants at the lower Tribunal failed to discharge the onus on them to show that:-

(a) that the respondent who was declared, personally committed the corrupt practices.

(b) that where the alleged act was committed through an agent, the said agent must have been authorized by the respondents;

(c) that the corrupt practices affected the conduct and outcome of the election and how it affected it.

(d) that the petition but for the malpractices would have won the election – reference made to UCHE NWOLE V CHIEF AMA C. IWUAGWU (2005) 16 NWLR (PT.952) 543 AT 570.

Counsel for the 3rd to 16th Respondents contends that no credible or substantial evidence was led by the Appellants at the lower Tribunal to establish the allegation of non-compliance with the provisions of the Electoral Act against the 3rd to 16th Respondents or corrupt practices against the Respondents.

Further learned counsel for the 3rd to 16th Respondents argues that where a petitioner alleges inflation of figures he has to prove his allegation by giving particulars of the inflated figures and by also showing that if the inflated figures were taken from the votes credited to his opponent the result would change in his favour. Reference made to BUHARI V OBASANJO (SUPRA) AT 315. That the Appellants failed at the lower Tribunal to proffer any evidence to that effect. Learned counsel for the 3rd to 16th Respondents urged us to resolve Issue No.1 in favour of the Respondents.

The complaint of the petitioners in issue No.1 is that the trial Tribunal erred in law when it held that the 1st Respondent was duly elected by majority of lawful votes cast in the election. The main allegations in the petitioners’ petition are that the elections were marred by corrupt practices and non-compliance with the Electoral Act in the forms of impersonation, undue influence, ballot box stuffing, aiding and abetting ballot box stuffing, thuggery and intimidation of supporters of the petitioners and other election malpractices. Learned counsel to the petitioners has submitted that the evidence of PW2, PW5, PW6, PW8 and PW10 clearly showed that the election was marred by diverse corrupt practices in contravention of the provisions of Section 131, 136 and 138 of the Electoral Act.

The trial Tribunal has given due consideration to the testimonies of the six witnesses mentioned above whom learned counsel to the Respondent submitted have given clear evidence which showed that the election was marred by diverse corrupt practices in contravention of the provisions of Sections 131, 136 and 138 of the Electoral Act and the finding of the Tribunal in respect of the testimonies are at pages 332-333 of the printed record it states thus:-

“The six witnesses whose evidence we have partly set out above each spoke only in relation to the particular polling unit they went on the day of the election. In effect their evidence is restricted to one polling unit or at most two in each affected ward. The number of polling units per ward and the number of voters who were disenfranchised are not before the Tribunal. At best the evidence of these witnesses consist of the isolated incidents in few polling units which appeared to be insignificant considering the evidence given by the 1st petitioner (PW1) to the effect that there are 215 polling units in the 11 wards of Soba constituency. The evidence of the witnesses does not cover or spread across the majority of polling units and wards in the constituency. ”

I have carefully perused the testimonies of PW2, PW5, PW6, PW8 and PW10 and the said testimonies did not show or even suggest that the election was marred by diverse corrupt practices in contravention of the provisions of Sections 131, 136 and 138 of the Electoral Act. The sample of the testimonies runs thus –

PW2 Muhammad Danjaba states that: I went to cast My vote. I saw motor-cycles driving with speed everywhere and I was told election is being held In the house of the District Head and found People in large number standing then I saw large Number of motor-cycles came with ballot boxes and entered the house of the District Head and everyone around was told to leave.

This witness did not state which polling unit he has gone to cast his vote, he did not state those driving motor-cycle with speed. He did not state the name of the District Head in whose house the election is being conducted and the names of persons who entered the District Head’s house with ballot boxes and also the person who directed everyone to leave. PW5 Shuaibu Ahmed states that: he was supposed to vote at Alhazauwa polling station of Richifa ward but when he got to Ahazauwa he could not vote, rather he saw ballot boxes been taken to the forest by the Police.

This witness did not state names of the police that were taking ballot boxes to the forest.

PW6 Bello Abdullahi stated that: he went to Awai polling unit but had to return due to threats that he heard shouts that all ANPP supporters should leave town.

This witness did not state the name or names of persons issuing threats that all ANPP supporters should leave town.

PW7 Ibrahim Gimba states under cross-examination that:-

At unguwar sarki polling unit of Gimba Ward he saw thugs armed with knives so he returned home without casting his vote.

This witness did not state the names of the thugs he saw armed with knives. PW8 Alh.Yakubu stated that: he went to vote at Anguwar Liman polling unit of Soba ward but he saw ballot boxes being taken to the house of Sarkin Soba therefore he went home without casting his vote.

This witness did not name the persons he saw taking ballot boxes to the house of Sarkin Soba and he did not state that he presented his voting card to the polling clerk at the polling unit and was not cleared to vote..

PW10 Nasiru Tella stated that: he went to vote at Alhazauwa L.E.A. primary polling unit of Kinkiba Ward but he was driven away by armed thugs that deprived him of voting right. This witness did not name the armed thugs that drove him away. The allegations of the petitioners that the elections were marred by corrupt practices and non-compliance with the Electoral Act in the forms of impersonation, undue influence, ballot box stuffing, aiding and abetting ballot box stuffing, thuggery and intimidation of supporters of the petitioners and other election malpractices. All the aforementioned acts are criminal in nature and are offences under Sections 131, 136 and 138 of the Electoral Act 2006.

By the provisions of Section 138 of the Evidence Act, if the commission of a crime by a party to any proceeding is directly in issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt. In EDET V EYO (1990) 6 NWLR (PT.605) 18 AT 29 this Court states thus:-

“The law is settled that in an election petition where the petitioner makes an allegation of crime as in this case against the Respondents and he makes the commission of the crime as the basis of his petition, Section 138(1) of the Evidence Act 1990 imposes a strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge this burden his petition must fail.”

In the instant appeal the basis of the petitioners’ petitions are rooted in the commission of crimes which are diverse corrupt practices in contravention of the provisions of Section 131, 136 and 138 of the Electoral Act. Earlier in this judgment I have reproduced the testimonies of the petitioners’ principal witnesses and from their evidence there is nothing whatsoever to establish the allegation of diverse corrupt practices in contravention of the provisions of Sections 131, 136 and 138 of the Electoral Act. The persons who acted as thugs, the policemen who took the ballot boxes to the forest, the District Head in whose house the ballot boxes were taken were not named and there was no evidence however minute to show that the acts of thuggery and other acts done in violation of the Electoral Act were done witht eh knowledge and of the 1st respondent.

In ATTAH V. ATIKU (1999) 5 NWLR (Pt.606) 186 at 193 the Supreme Court states thus:-

“When in election petition the allegation is that of corrupt practices were committed by agents of a candidate, the petitioner must prove-

(a) that alleged agent claimed to be agent of the candidate;

(b) that the offences were committed in favour of the candidate:

(i) with his knowledge;

(ii) with the knowledge or consent of a person who is acting under the general or special authority of such candidate with the reference to the election.”

See also WALI V. BAFARAWA (2004) 16 NWLR (PT.898)1 AT 42 -43. In view of the foregoing, I find that no evidence whatsoever was adduced by the petitioners to show that the election was marred by diverse corrupt practices in contravention of the provisions of Sections 131, 136 and 138 of the Electoral Act 2006.

Learned counsel for the Appellants has contended that the 1st and 2nd Respondents in paragraph 6 of their Reply to the petition admitted the averment of paragraph 6 of the petition and the 3rd to 16th Respondents in paragraph 2 of their Reply to the petition clearly admitted paragraph 6 of the petition.

The position of the law is that before a court can decide whether or not there is an admission in the statement of defence or reply to in respect of an averment in a statement of claim or petition, the entire pleadings of the parties as a whole must be considered. See DR. CHRIS N. NGIGE V PETER OBI & ORS (2006) 14 NWLR (PT.999) 1 AT 177; BUHARI V OBASANJO & ORS (2005) 13 NWLR (PT.941) 1 AT 261; TITILAYO V OLOPO (1991) 7 NWLR (PT.205) 519 AT 532; PAN ASIAN AFRICAN CO. LTD V NATIONAL INSURANCE CO. (NIG) LTD (1982) 9 SC 1; UGOCHUKWU V. CO-OP COMMERCE BANK LTD. (1996) 6 NWLR (PT.456) 524; LION OF AFRICA INSURANCE V FISAYO (1986) 4 NWLR (PT.37) 674; A.G ANAMBRA STATE V. ONUSEZOGU ENTERPRISES LTD (1987) 4 NWLR (PT.66) 547 AT 560.

I have carefully gone through the entire petition and the 1st and 2nd Respondents Reply to it at pages 62-64 of the record of proceedings and the 3rd to 16th Respondents Reply to the petition at pages 86 – 90 considering the 1st & 2nd Respondents and the 3rd to 16th Respondents Replies to the petition as a whole I am of the firm view that it could not be said that 1st and 2nd Respondents and 3rd to 16th Respondents admitted paragraph 6 of the petitioners petition. Paragraph 6 of the petition states:-

“6. The 4th Respondent is the Resident Electoral Commissioner for Kaduna State who by law is also the Chief Returning officer of the said election that took place on 21st day of April, 2007 and who also wrongly and illegally returned the 1st Respondent as the winner in the said election representing Soba Federal Constituency into the House of Representatives.”

Paragraphs 3, 4 and 5 of the 1st and 2nd Respondents Reply to the petition states:-

“3. Paragraph 2 of the petition is denied. The 1st Respondent was duly, rightly and lawfully returned having scored the majority of lawful votes in the election.

4. paragraph 3 of the petition is admitted, paragraph 4 is denied. The 1st Respondent was rightly, lawfully, legally and duly returned by the 3rd Respondent.
5. Paragraph 5 is admitted to the extent that the 4th Respondent is the Chief Returning officer of the said election. The 4th Respondent rightly and legally returned the 1st Respondent as the winner of the election.”

The 3rd to 16th Respondents in paragraph 7 of their Reply to the petition states thus:-

“7. In answer to paragraph 5 of the petition the respondents aver that the 4th respondent is generally in charge of conducting elections in the state but did not return the said elections and further states that the 1st Respondent was lawfully and rightly returned as the winner of the election having scored the majority of the lawful votes by the 5th Respondent who is the INEC official in charge of returning the said election.”

With the foregoing paragraphs 3, 4 and 5 of the 1st & 2nd Respondents’ Reply to the petition and paragraph 7 of the Reply of the 3rd to 16th Respondents certainly it cannot be said by any iota of imagination that the 1st & 2nd Respondents and the 3rd to 16th Respondents admitted paragraph 6 of the petitioners’ petition. In view of what I have said in the foregoing, issue No.1 is resolved against the Appellants in favour of the Respondents.

ISSUE NO.2:

Whether the Tribunal erred in law in not taking Judicial Notice of the massive rigging that characterized the 2007 election in Nigeria including election into the House of Representatives.

Learned counsel for the Appellants submitted that the Tribunal erred in law in not taking judicial notice of the massive rigging that characterized the 2007 election in Nigeria including election into the House of Representatives. That the nature of the evidence adduced by PW1 – PW12 in the Tribunal clearly showed how the electoral laws were set aside so as to subvert the electoral process. The fact the 3rd Respondent failed, neglected or refused to perform its mandatory function as, stipulated under Section 30(1) of the Electoral Act gave credence to the fact that it had set out to rig the election. That the 3rd Respondent neither submitted to the Tribunal the names of the staff to supervise the election nor administer on the staff the oath of neutrality as provided in the second schedule of the Electoral Act 2006. That the fact that evidence of the oath was not tendered during the hearing of the petition should not be presumed in favour of the Respondents. Alternatively counsel for the Appellants urged us to hold that the Respondents breached the provisions of Section 30 of the Electoral Act and consequently, the election of 21/04/07 could not be said to have been supervised by the duly appointed staff of the 3rd Respondents. Learned counsel submitted that the failure to tender before the Tribunal the true contents of all the materials for the election as required by virtue of Form EC25 means that the Tribunal would not be able to know the materials that were received or if received whether they were actually used for the election or were replaced by other ones.

Further counsel submitted that the tendering of Exhibits L-W by the Respondents was not enough and should not be admissible and if admitted no weight should be attached to it without submission of further oral: evidence of witnesses like an eligible voter who voted or the staff of the 3rd Respondent who conducted the election. That failure of the Respondents to meet this requirement supports the argument of the Petitioners that the Tribunal ought to have taken judicial notice of the electoral malpractices which characterized the election – reference made to WALI V. BAFARAWA (2004) 16 NWLR (PT.898) 144 – 45.

Finally on this issue counsel for the Appellants submitted that what took place on 21/04/07 at Soba Federal Constituency were not just slight or inconsequential electoral malpractices, they amounted to substantial” non-compliance with the mandatory electoral provisions and commission of electoral offences which resulted in the massive rigging which bedeviled the 2007 General Elections in Nigeria to invite the court to take judicial notice of with a view to invalidating the election.

In response to the submissions on Issue No.2 by the Appellants, learned counsel for the 1st and 2nd Respondents submitted that the issue did not arise at all in the evidence at the lower Tribunal. That there are over 120,000 polling units used during the election in Nigeria and it is unimaginable that a court can be asked to take judicial notice of a fact that was neither notorious nor proved.

Further learned counsel for the 1st & 2nd Respondents submitted that it is the law, under Section 74 of the Evidence Act that every matter entitled to be judicially notified has its appropriate and necessary foundation without which it cannot be judicially noticed as judicial notice is not anomalous appendage in law relating to proof.

In his response to the submission on Issue No.2 learned counsel for the 3rd to 16th Respondents submitted that the facts the Appellants are calling on the court to take judicial notice of do not fall into facts which the court must take judicial notice of under the Evidence Act, reference made to Section 74 of the Evidence Act. Counsel urged the Court to resolve this issue in favour of the Respondents.

Issue No. 2 is on whether the Tribunal erred in law in not taking Judicial Notice of the massive rigging that characterized the 2007 election in Nigeria including the election into the House of Representatives.

The main grouse of the Appellants in their position before the lower Tribunal was the allegations that the elections were marred by corrupt practices and non-compliance with the Electoral Act in the forms of impersonation, undue influence, ballot box stuffing, aiding and abetting ballot box stuffing, thuggery and intimidation of supporters of the Appellants and other election malpractices. All the aforementioned acts are criminal in nature and are offences under Sections 131, 136 and 138 of the Electoral Act, 2006.

Generally in law, the burden of proof or onus of proof is said to lie on a person who in the circumstances of the pleadings has the responsibility to advance evidence in order to prove facts of the case to the satisfaction of the court as contained in his pleadings.

The ultimate decision of a court in every trial depends on whether or not the party on whom this responsibility lies has discharged that responsibility to the satisfaction of the trial court. His entitlement to judgment in the case depends to a large degree on his ability to discharge this onus of proof laid on him by law. The law that regulates trials in our adversarial system of adjudication is the Evidence Act. Sections 135 to 137 of the Evidence Act provide as follows:-

“S.135(1) – Whoever desires any court to give judgment to any legal right or liability dependent on existence of facts which he asserts must prove that these facts exist.

(2) When a person is bound to prove the existence of facts it is said that the burden of proof lies on that person.

S.136 – The burden of proof in a suit or proceeding Lies on that person who would fail if no Evidence at all were given on either side.

S.137 (1) – In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produce on either side, regard being had to any presumption that may arise on the pleadings.”

By the combine reading of the above provisions, the primary and general burden of proof i.e. the ultimate responsibility to adduce evidence to establish the case as disclosed from the pleadings lies on that person who will lose if no evidence is led at all in the trial.

This principle applies evenly to all cases including election petitions except where the burden of establishing or proving certain specific facts has been placed on any particular party by law. The application of this principle of law to election petitions has been re-confirmed by this court in the case of AWUSE V ODILI (2005) ALL FWLR (PT.261) 248 AT 316 when it stated:-

“It is an elementary principle of law that the burden is on him who asserts to adduce evidence in proof of that assertion. In the instant case, the appellant as petitioner at the Tribunal had the onerous duty of proving his Petition and such reliance could not be made on the weakness of the case of the defence …

…….. In other words, the petitioner was duty bound to succeed on the strength of his own case and not on the weakness of the defence.”

The law of this land is very clear on whom lies the burden of proof. It sound extremely- strange, unthinkable and unimaginable for a learned counsel to invite the court to take judicial notice of the alleged massive rigging that characterized the 2007 election in Nigeria including election into the House of Representatives.

Beside, Section 74 of the Evidence Act has stated facts which court must take judicial notice of, alleged massive rigging that characterized the 2007 election in Nigeria including the election into the House of Representatives is not one of such facts. And by whatever stretch of imagination factual or fictional it cannot be imported therein – that is facts that are to be judicially noticed.

In the instant appeal, the Appellants as petitioners at the Tribunal had the onerous duty of proving allegations contained in their petition that is the position of the law as it stands today. In view of the foregoing, Issue No.2 is resolved against the Appellants in favour of the Respondents.

ISSUE NO.3:

Whether the Tribunal erred in law in striking out the names of the 17th – 29th Respondents to the petition on the grounds that the Respondents are not necessary parties.

Learned counsel for the Appellants submitted that the Tribunal erred in law in striking out the names of the 17th – 29th Respondents to the petition on the grounds that the Respondents are not necessary parties that this submission is premised on the fact that the 17th to 29th Respondents actually participated in the election through then acts of subversion of the electoral process. That they were able to achieve this in their capacities as rigging resource persons employed by the Respondents with a view to ensuring the victory of the 1st Respondent by hook or by crook.

Further counsel submitted that the 17th to 29th Respondents ought to have remained as parties for the purpose of responding to the serious criminal allegations leveled against them in the petition. That the fact that the Tribunal struck out their names from the suit constituted a serious omission which counsel urged us to rectify same by holding that they were still necessary parties. Reference made to YAHAYA V AMINU (2004) 7 NWLR (PT.871) 159 AT 179-180; KALU V UZ0R (2004) (PT.886) 1 AT 22.

In response to submissions on Issue No.3, learned counsel for the 1st and 2nd Respondents submitted that Section 144(2) of the Electoral Act 2006 and the Supreme Court decision of OBASANJO V BUHARI (PT.850) 510 have settled the issue of who is a necessary party to an election petition. Learned counsel for the 1st and 2nd Respondents contends that even if the facts are strong enough to show that the 17th to 29th Respondents actually obstructed the elections” they do not fall within necessary Respondents recognized by Section 144(2) of the Electoral Act 2006 – reference made to AGBOOLA V AGADI (2004) 14 NWLR (PT.892) 14; INEC V RAY (2004) 14 NWLR (PT.892) 92.

In response to Issue No.3, learned counsel for the 3rd to 16th Respondents submitted Section 144(2) of the Electoral Act, 2006 identifies three categories of persons who ought to be joined as respondents in an election petition and that the 17th to 29th Respondents do not fall into the categories of any other person who took part in the conduct of the election – reference made to MUHAMMADU BUHARI & ORS V CHIEF OLUSEGUN OBASANJO & ORS (2003) 17 NWLR (PT.850)423 AT 480.

The contention of the learned counsel to the Appellants in Issue No.3 is that the 17th to 29th Respondents are necessary parties to the petition and ought not to be struck out as did by the lower Tribunal.

At this point, it is appropriate to consider the purport and intendment of Section 144(2) of the Electoral Act, 2006 which provides as follows:-

“144(2) – The person whose election is complained of, is in this Act, referred to as the Respondent, but if the petitioner complains of the conduct of an Electoral Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer 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.” Before the lower Tribunal the 17th to 29th Respondents were alleged to have actively prevented a free and fair election and are necessary parties to be joined as Respondent to the petition.

In the case of OBASANJO V BUHARI (SUPRA) the Supreme Court reasoned that in respect of the phrase ‘any other person who took part in the conduct of the election’, it was not enough to show that a person merely participated in the election to come within that provision. He must be shown to have taken part in the conduct of the election and that the word ‘conduct’ meant the manner of directing or managing an election. In OBASANJO V. BUHARI (SUPRA) Uwaifo JSC states:-

“‘c5….It must be understood that the phrase any other person will cover only a person who was assigned to take part in the conduct of an election. Such person need not be an electoral officer or Returning officer but any person who took part in the conduct of an election. ” In the instant case there is nothing to show that the 17th to 29th Respondents were assigned to take part in the conduct of an election. While the mission of INEC and its staff is to conduct a free and fair election, the 17th to 29th Respondents were alleged to have actively prevented a free and fair election. They were alleged to have committed criminal acts of seizing ballot papers, ballot boxes and taking them to their houses it is glaring that these are not conducts conducive to a free and fair election. I am therefore of the clear view that the 17th to 29th Respondents do not fall into the ‘Respondents’ envisaged by Section 144(2) of the Electoral Act 2006. Accordingly Issue No.3 is resolved against the Appellants in favour of the Respondents.

ISSUE NO.4:

Whether the’ Tribunal erred in law to hold that the Appellants had not discharged the burden of proving their case and burden of proof had not shifted to the Respondents.

Learned counsel for the Appellants submitted that the Tribunal erred when it held that the Appellants had not discharged the burden of proof in the petition also the Tribunal erred in law when it held that the burden had not shifted to the Respondents. That this submission is premised upon the grounds that the nature of the evidence adduced by’ the Appellants is cogent and credible enough to make the provisions of Section 146 of the Electoral Act 2006 inapplicable to the petition. Counsel urged the court to weigh the evidence of PW1 – PW12 against the Exhibit L – W which were not backed by oral testimony and hold that the Appellants have discharged the burden. Further learned counsel for the I Appellants contended that inspite of the evidence adduced by the Appellants in support of the petition the Respondents failed to adduce any evidence in rebuttal.

Counsel for the Appellants submitted that even in a situation where there is evidence that only one ballot box was taken to the house of a District Head it is enough to make the provisions of Section 146 of the Electoral Act inapplicable to the petition, that the influence of a District or Village Head in any Nigerian Community is substantial much less where such influence is exercised unduly with a view to subverting the electoral process. Further learned counsel for the Appellants contends that it is only a failure by the Tribunal to properly evaluate the evidence of witness called by the Appellants could have led to the conclusion that the burden of proof of corrupt practices had not shifted to the Respondents.

In response to submissions on Issue No.4 counsel for the 1st & 2nd Respondents submitted that the Appellants as petitioners relied on only one ground in their petition that the purported election of the 1st Respondent was invalid by reason of corrupt practices and/or by non-compliance with the provisions of the Electoral Act.

Counsel for the 1st & 2nd Respondents argues that it is the law that for a petitioner to succeed in a petition founded on corrupt practices which is a criminal offence, he has to prove beyond reasonable doubt that the Respondent personally committed it, or through his agent or that he authorized it and there was no such evidence at all in the testimony of the 12 witnesses – reference made to Section 138(1) of the Evidence Act; ADEOLA V OWOADE (1999) 9 NWLR (PT.617) 30. Further learned counsel contends that in addition to the fact that no credible of non-compliance was established, by Section 146 of the Electoral Act it has to be shown to, have substantially affected the result of the election which was not’ done in the instant case. That it is only when that is done by the petitioners that the burden will shift to the Respondents.

In response to submissions on Issue No.4 learned counsel for the 3rd to 16th Respondents submitted that the Appellants at the lower Tribunal anchored their petition on the shores of criminality that the foundation of their petition was built on criminal offences of fraud, forgery, falsification of results and dereliction of duty. That these allegations are criminal in nature and must be proved beyond reasonable doubt and not by balance of probabilities.

The complaint of the Appellants in Issue No.4 is that the Tribunal erred in law when it held that the Appellants had not discharged the burden of proving their case and the burden had not shifted to the Respondents.

The Appellants as petitioners relied on only one ground in their petition that is the purported election of the 1st Respondent was invalid by reason of corrupt practices and/or non compliance with the provisions of the Electoral Act.It is settled law that for a petitioner to succeed in a petition founded on corrupt practices which is a criminal offence, he has to prove that beyond reasonable doubtThe Tribunal considered and evaluated the evidence adduced by the 12 witnesses called by the Petitioners and made the following findings at page 336 of the printed record.

“Having regard to the evidence adduced by the 12 petitioners’ witnesses we are of the settled view that there is a lacuna in the case presented by the petitioners which has been left unabridged as there is no credible evidence from any witness or witnesses from the majority of the polling units. As a result our findings is to the effect that there is no cogent and compelling evidence proffered by the petitioners to substantiate their allegations.”

At page 337 of the printed record the Tribunal stated:

“Going by the nature of evidence placed before the Tribunal by the petitioners we have no difficulty in holding that the petitioners have failed to discharge the burden on them.”

In the instant appeal, I have carefully perused the evidence of the 12 witnesses adduced by the petitioners at the lower Tribunal and there is nothing whatsoever in the evidence to establish the allegations contained in the petition to warrant the shifting of burden of proof to the Respondents. The trial Tribunal has properly evaluated the evidence adduced before it and made its finding thereon. There is a presumption that the findings of fact of a trial Tribunal are right or correct and so remains until dislodged by the party who challenges such findings. And on the attitude of appellate court to evaluation of evidence by the trial court, this Court in INEC V RAY (2004)14 NWLR (PT.892) 92 states thus:- “Evaluation and ascription of probative value to evidence tendered in proceedings falls within the province of the trial court or tribunal. Consequently, an appellate court would generally not interfere with the finding of facts of the trial court based on such evaluation and ascription of probative value unless they are shown to be perverse or the lower court drew wrong inference from accepted facts or applied wrong principles of law to such facts. (Igodo V Owulo (1995) 5 NWLR (pt.601) 70; Njoku V. Osimiri (1999) 5 NWLR (Pt.601) 120; Odali V Ahmadu (1999) 5 NWLR (Pt.601) 22 referred to).”

In the appeal at hand; the Appellants have not dislodged the findings of facts made by the trial Tribunal equally they have not shown that the findings are perverse or that the trial Tribunal drew wrong inference from accepted facts or applied wrong principles of law to such facts to warrant us to interfere with the findings. Accordingly issue No.4 is resolved against the Appellants in favour of the Respondents.

ISSUE NO.5:

Whether the Tribunal was right to hold that the evidence by PW1, PW3, PW4, PW9, PW11 and PW12 was hearsay evidence and inadmissible in law and there was lacuna in the evidence adduced by the Appellants.

Learned counsel for the Appellants submitted that the Tribunal erred in law when it held that the evidence of PW1, PW3, PW4, PW9, PW11 and PW12 was hearsay evidence and inadmissible in law. That the Tribunal erred in law when it held that there was lacuna in the evidence adduced by the Appellants. Learned counsel for the Appellants submitted that their submission is based upon the premise: that election petition is not just an ordinary civil suit between two or more parties inter se. Election petition carries more weight than that and this is so because the faith and fate of the electorate and future of the nation depend upon it. That the ballot papers with which the views of the electorate are expressed and the ballot boxes in which the trust and confidence of the people are contained should be jealously guarded by the electoral officials. They are not to be toyed with by people who are not required by law to have anything to do with them much less take them into their own custody for the purpose of altering their content so as to reflect their own selfish motives to the detriment of the vox populi vox dei.

It is submitted for the Appellants that by allowing the misconduct of people who did not have anything to do with the election to interfere with the conduct thereof, the 3rd Respondent had offended the provisions of Section 73 of the Electoral Act and the results subsequently declared could not be said to reflect the majority of the lawful vote cast. Reference made to BUHARI V OBASANJO (SUPRA) 504 PARAS E – F.

Further counsel for the Appellants contends that even in a situation where actual voting took place, the 1st Appellant and the witnesses whose evidence the Tribunal declared as hearsay, could not have been at 215 polling stations from the start of polling to the end. That as a matter of absolute necessity, the Appellants can only reasonably be expected to act through their polling agents and where the agents of the 1st and 2nd Respondents took charge of proceedings as if they were acting in accordance with legal requirement and not through connivance and collusion of the so called Returning Officers which is the case anyway. One wonders what further proof of damaging irregularities required in this case showing that the results of the elections were not substantially affected.

Further, counsel for the Appellants argues that evidence of reports received from the Appellants polling agents who were criminally intimidated and threatened and were prevented from entering several wards and polling stations cannot in the circumstances of an election petition be hearsay evidence. That there is credible evidence before the Tribunal that majority of the ballot boxes for the election in question was taken to the houses of the District Heads, Village Heads and election rigging agents of the 1st, 2nd, 3rd and 4th Respondents. That the Appellants were substantially prejudiced by such illegal actions and the credible evidence emanating from such experience can only be wrongly held to be hearsay or full of lacuna. Further counsel for the Appellants contends that the address of learned counsel for the Appellants wholly related to the evidence of the witnesses called at the hearing of the petition and was not calculated to fill the lacuna in the Appellants’ case and in this regard, the Appellants clearly relied upon the strength of their case and not the weaknesses of the Respondents’ case. That the decision of the Tribunal based upon such wrong conclusions/findings amounted to erringly crossing the line to the side of the Respondents.

“In response to submission on Issue No.5 by learned counsel to the Appellants, learned ‘counsel for the 18th and 2nd Respondents submitted that it is now trite law that where there are allegation of malpractices at any election, the best evidence is that of agents of political parties at the polling units not supervisors or returning officers who allegedly received reports from the agents. That where the evidence is that of the supervisors or other officers who were not witnesses of the, alleged malpractices and who informed the Tribunal that ‘they were told’ or that they ‘received reports from Agents’, that is clearly ‘hearsay and inadmissible’.

Learned counsel for the 1st and 2nd Respondents argues that even where a deponent states facts which he received from another, he will merely be complying with the provisions of Section 86 and 88 of the Evidence Act, but the evidence remain hearsay.

The grouse of the Appellants in Issue No.5 is that the Tribunal held that the evidence of PW1, PW3, PW4, PW9, PW11 And PW12 was hearsay and inadmissible. It is pertinent to reproduce the evidence of these witnesses to see whether they amount to what is termed as hearsay evidence or not.

PW1 Alh Garba Chairman stated in his adopted deposition that at the Central Primary School Sabo which is the collation centre, he found there were noise and shouts and some people were beaten and this was because of ballot boxes which were brought from the houses of Sarki Sabo and one Alh Kyauta which many people objected to the boxes to be counted.

However when cross-examined by counsel for the 3rd to 17th Respondents he stated as follows:-

“I saw ballot boxes being carried from the houses of Sarkin Sabo and Alh. Nakyauta.”

PW3 Shuaibu Ahmed in his adopted deposition stated thus:-

“On the 21st April, 2007 my party ANPP sent to Maigana as the party agent during the April 2007 House of Representatives election. That in Maigana all election material were seized and taken to the houses of Sarkin Maigana, the house of PDP House of Assembly member and the PDP councilor in the area and there was no election and I did not sign Form EC8B (1).”

Under cross examination by learned counsel for the 1st and 2nd Respondents, PW3 stated as follows:-

Respondents, PW3 stateq1as follows:-

“I was posted to Maigana Ward as supervisory ANPP agent. There are 35 polling units in Maigana ward. I cannot say the exact number of polling units I visited. I know what happened in other polling units. The OFFICIALS under me reported to me what happened.”

PW4 Abdullahi Fagaci stated that he was posted to Kinkiba as party agent of the House of Representatives Election. That he arrived the town and became frighten of the way he saw motorcycle riders in groups some carrying knives and threatening to kill anyone from ANPP. That around 2.00pm they warned all ANPP supporters and officials to leave town or else they will kill anyone found. That with that threat and the fear of what he saw he left town to save himself and did not sign Form EC8B(1).

Under cross examination by learned counsel for the 3rd to 16th Respondents, PW4 stated thus:-

“I knew that election did not take place even though I left the town at about 2.30pm. I knew because our party agent reported to me.”

PW9 stated in his deposition that on 21st April, 2007 during the House of Representatives Election he was posted to Danwata ward as agent of ANPP for the election he stated that there was no election in many of the wards as materials were seized and taken to unknown destination.

PW11 Lawal Adamu stated in his deposition that on 21st April, 2007 during the House of Representatives Election he was posted to Rahama by ANPP as agent in the ward. He stated that there was no elections in many of the polling stations as the ballot boxes and materials were taken to the House of the District Head. That not satisfied with what they saw they wrote a letter to the Returning Officer complaining of rigging and other malpractices.

PW12 Muhammad Attahir the 1st Petitioner testified inter alia under cross examination by the learned counsel for the 3rd to 16th Respondents stated as follows:-

“I personally did not go anywhere outside Soba Reading Room polling unit. All I said in my written statement was what I was told by my trusted agents.”

From the foregoing it is clear that the evidence of PW3, PW4 and PW12 are hearsay evidence.

The law is that hearsay evidence is inadmissible in evidence. In BUHARI V OBASANJO (SUPRA) the Supreme Court held thus:-

“It is of course settled law that hearsay evidence is not admissible to prove a fact or matter.”

See UBN V ISHOLA (2001) 15 NWLR (PT.735) 47; ARMELS TRANSPORT LTD V ATINUKE MARTINS (1990) ALL NLR 27, EKPO V STATE (2001) 7 NWLR (PT.712) 292; OKORO V STATE (1998) 14 NWLR (PT.584) 181.

With regard to the evidence of PW1, PW9 and PW11 there is nothing whatsoever in their evidence to establish corrupt practices and non-compliance with the Electoral Act which allegation are criminal in nature and ate offences under Sections 131, 136 and 138 of the Electoral Act 2006. Accordingly Issue No.5 is resolved against the Appellants in favour of the Respondents.

In the final analysis, having resolved all the five issues for determination against the Appellants, this appeal is totally lacking in merit and ought to be dismissed. It is hereby dismissed by me. The judgment of the Tribunal in Petition No. EPT/KD/NAJ005/07 delivered on the 8th day of November 2007 is affirmed.

The two set of Respondents are awarded costs of N=20,000.00 each against the Appellants.

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Other Citations: (2008)LCN/2928(CA)