Barr. Ennoch Etsu Kwali & Anor V. Hon. Isah Egah Dobi & Ors (2008)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J. C. A.

This is an appeal against the judgment of the National Assembly Election Petition Tribunal holden at Abuja, delivered on the 6th day of October, 2007. The petition was in respect of the return of Hon. Isah Egah Dobi, the 1st Respondent as the Member of the National Assembly, House of Representatives representing the Abaji/Gwagwalada/Kwali/Kuje Federal Constituency of the Federal Capital Territory, Abuja.

THE BRIEF BACKGROUND FACTS:

On the 22nd day of May, 2007, the Appellants as Petitioners filed before the trial Tribunal a petition containing eleven paragraphs challenging the election and return of the 1st Respondent as Member representing the Abaji/Gwagwalada/Kwali/Kuje Federal Constituency of the Federal Capital Territory, Abuja in the House of Representatives of the National Assembly. The petition was later amended by an Amended petition of eleven paragraphs on the in day of August, 2007. The grounds of the petition were that the election held on 21/4/2007 was replete with substantial noncompliance with the provisions of the Electoral Act, 2006 and the Manual for Election Officials, 2007, thereby rendering the result of the election null and void. And that the 1st and 2nd Respondents did not score the majority of lawful votes cast at the election. The Appellants in proof of their petition called two witnesses and tendered some exhibits in evidence.

On the other hand, the 1st and 2nd Respondents in their eleven point Reply to the amended petition denied the Appellants’ claim, called one witness; while the 3rd to 38th Respondents also in denial of the petition called two witnesses and tendered some exhibits in evidence.

In its judgment delivered on the 6th day of October, 2007, the trial Tribunal found against the Appellants that they failed to establish any case of non-compliance with or breach of the Electoral Act, 2006 and the Manual for Ejection Officials, 2007. The Petition was accordingly, dismissed. The 1st Respondent was held to have been duly ejected and returned as Member, House of Representatives of the National Assembly representing the Abaji/Gwagwalada/Kwali/Kuje Federal Constituency of the Federal Capital Territory, Abuja at the election held on the 21st day of April, 2007.

Dissatisfied with the judgment of the trial Tribunal, the Appellants filed to this Court a Notice and Grounds of Appeal containing eleven grounds of appeal on the 25th day of October, 2007. The eleven grounds of appeal with their particulars are contained in pages 433 to 445 of the record of appeal.

The Appellants by a brief of argument dated and filed on 14th day of December, 2007 formulated four issues for the determination of this appeal. These are:

1. Whether or not the refusal by the Tribunal to hear and determine the Appellants’ application dated 2nd

October 2007 did not amount to an abdication of the Tribunal’s duty to do justice, which led to the breach

of the Appellants’ right to fair hearing thereby rendering null and void the proceedings of the 2nd of

October 2007 and the subsequent judgment delivered on the 6th of October 2007?

2. Whether or not, on the basis of the pleadings and the evidence adduced before the Tribunal, more particularly the Certified True Copies (CTC) of the Registers of Voters, the burden to produce the Originals of the Register Voters still rested on the Appellants?
3. Whether or not the Tribunal was right in its findings that ‘without the evidence of the witnesses from the polls, it was impossible to prove over-voting? ,
4. Whether or not, there was sufficient legally admissible evidence upon which the Tribunal will support the findings that the Appellants won the majority of lawful votes cast at the Election?

The 1st and 2nd Respondents filed a brief of argument on the 24th day of December, 2007. In it, ‘the four issues formulated by the Appellants were adopted for the resolution of this appeal.

The 1st and 2nd Respondents ‘raised a preliminary objection in their brief of argument on the ground that the Appellants’ brief of argument was not filed within the time stipulated by law. The argument in respect of the preliminary objection is incorporated in the 1st and 2nd Respondents’ brief of argument.

The Appellants also filed a Reply to the brief of argument of the1st and 2nd Respondents. The Reply brief of argument of the Appellants was deemed properly filed and served on 18/2/08.

The 3rd – 38th Respondents did not file any brief of argument.

On the 18th day of February, 2008 when this appeal was heard, Mr. Y.C. Maikyau learned counsel for the Appellants adopted and relied on both the Appellants’ brief and reply brief of arguments. Replying on points of law, he submitted that the Appellants were served with the record of proceedings on 5/12/07 and the Appellants’ brief of argument was filed and served within time, on 14/12/07. He urged this Court to dismiss the preliminary objection and allow this appeal.

Replying, Chief K. Tunyan the learned counsel for the 1st and 2nd Respondents, adopted and relied upon the 1st and 2nd Respondents’ brief of argument. He urged this Court to dismiss this appeal for incompetence and Jacking in merit.

Mr. Thomas Nka, the learned counsel for the 3rd – 38th Respondents although did not file a brief of argument for the 3rd-38th Respondents, adopted, relied on and aligned himself with the submissions contained in the 1st and 2nd Respondents’ brief of argument. He urged this Court to dismiss this appeal.

It is pertinent for me at this juncture before considering the issues set down for the determination of this appeal to resolve the preliminary objection raised by the 1st and 2nd Respondents. This is necessary because it is a settled legal principle that where a preliminary objection is raised in an appeal, it must be given priority and determined or resolved by the Court at the initial stage before going into the merits of the appeal. See the cases of:

(1) Nigeria Navy V. Garrick (2006) 4 NWLR (Pt. 696) p. 69 at pgs. 94-95;

(2) NNPC Plc. v. Imakrukhe (2002) 5 NWLR (Pt.760) p. 294;

(3) Gait v. Ewete (2000) 15 NWLR (Pt. 736) p. 273 and

(4) Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) p. 637

PREUMINARY OBJECTION

The learned counsel for the 1st and 2nd Respondents urged this Court to strike out the brief of argument of the Appellants dated 14th December, 2007 and filed on the same date for incompetence and to consequently dismiss this appeal. He reiterated that by the provisions of Paragraph 5 of the Practice Direction NO.2 of 2007, in an election petition appeal, an appellant within a period of ten days of the service of the record of appeal on him must fife in the court, and serve all the respondents a written brief of his arguments in the appeal.

He argued that the record of appeal in this matter was served on the 1st and 2nd Respondents on the 2nd of November, 2007; and the brief of argument of the Appellants was served on the 1st and 2nd Respondents on the 17th of December 2007. That was forty-five days from the date the record of appeal was served on the counsel for the Appellants. There is no indication that the leave of this Court for extension of time was sought and granted before the Appellants’ brief dated 14th of December, 2007 was filed on that same date. This is certainly in violation of Paragraph 5 of the Practice Direction NO.2 of 2007. On this position, reliance was placed on the case of: Adefemi v. Abegunde (2004) 15 NWLR (Pt. 895) p 1 at pgs 23 -24, where this Court was faced with a similar situation as this case. In that case, a reply brief of argument was filed out of time without the leave of the court. It was held that the legal effect of the filing of the briefs of argument out of time and without an order of court extending the time to do so is that there is no legally recognizable brief of argument. The brief not being properly before the court must therefore be discountenanced.

It was further contended for the Respondents that the consequence of failure to file briefs is that the Appeal must be dismissed. This is the effect of the provisions of Order 17 rule 10 of the Court of Appeal Rules, 2007. This Court was therefore urged to discountenance the Appellants’ brief of argument purportedly filed on the 14th day of December, 2007 and dismiss the appeal accordingly.

The learned counsel for the Appellants in opposition submitted that the preliminary objection of the 1st and 2nd Respondents is lacking in substance. He stated that the Appellants’ time for the filing of their brief of argument does not start to run from the date of service of the record of appeal on the Respondents but from the date the Appellants were served with the record of appeal.

The Appellants’ counsel went further to state that the record of appeal in the instant case was served on the Appellants on the 5th day of, December, 2007. The Appellants’ brief of argument was filed on the 14th day of December, 2007. The Appellants did not need to seek the leave of the Court before filing the brief of argument because it was filed within the period allowed by the Practice Direction of 2007, which is ten days from the day the record of appeal was served on them. Hence, the case of Adefemi Vs. Abegunde supra cited by the Respondents’ counsel is inapplicable to the facts and circumstances of this case. He therefore urged this court to dismiss the preliminary objection.

I have considered the arguments of learned counsel for parties in respect of the preliminary objection. I have also perused the record of appeal. Paragraph 5 of the Practice Direction NO.2 of 2007 reads:

“Within a period of 10 days after the service of the record of proceedings, the appellant shall filed in the court and serve all the respondents written brief being, a succinct statement of his arguments in the appeal”

Time is of essence in the hearing of an election matter. This position is well established and not a novel legal proposition. It is therefore imperative that in an election petition, the procedure laid down in the Electoral Act and the Practice Direction must be strictly complied with. See the cases of:

(1) Buhari v. Yusuf (2003)14 NWLR (Pt, 841) p, 446 and

(2) Abubakar v. INEC (2004) 1 NWLR (pt.854) p 207.

Where a brief of argument is filed outside the time stipulated by the Practice Direction, the brief is rendered liable to be discountenanced by the court.

By the provisions of paragraph 5 the Practice Direction reproduced supra, an appellant’s brief of argument shall be filed and served on the respondent within ten days of the service of the record of appeal on the appellant. I have no difficulty in agreeing with the learned counsel for the Appellants that in the instant case, for the filing of the Appellants’ brief of argument, time starts to run from the date the record of appeal was served on the Appellants and not the date the Respondents were served with the record of appeal.

The assertion by the learned counsel for the Appellants that the Appellants were served with the record of appeal on the 5th day of December, 2007 remains uncontroverted. Therefore, I hold that the Appellants’ brief of argument which was filed on the 14th day of December, 2007 was filed within the time stipulated by paragraph 5 of the Practice Direction, 2007.

Consequently, the preliminary objection of the 1st and 2nd Respondents lacks merit, it is hereby overruled and dismissed accordingly.

In resolving this appeal, I shall make use of the issues formulated by the Appellants as I find it convenient so to do. I shall however take issues two, three and four together.

ISSUE ONE

Whether or not the refusal by the Tribunal to hear and determine the Appellants’ application dated 2nd

October 2007 did not amount to an abdication of the Tribunal’s duty to do justice, which led to the breach the Appellants’ right to fair hearing thereby rendering null and void the proceedings of the 2nd of October 2007 and the subsequent judgment delivered on the 6th of October 2007?

The learned counsel for the Appellants submitted that by failure to hear and determine the Appellants’ motion dated 2nd October 2007 before proceeding to take the addresses of counsel and delivering the judgment in the main petition, the trial Tribunal abdicated its judicial responsibility which culminated into the breach of the Appellants’ right to fair hearing. The said motion prayed the trial Tribunal for leave to re-open the Appellants’ case and recall PW2 in order to tender the originals of the registers of voters, or in the alternative for the trial Tribunal to exercise its powers under the Electoral Act to call the 5th Respondent to produce and tender the said registers of voters, The trial Tribunal however ignored the relevant reliefs sought in the motion but proceeded to deliver its judgment in the main petition.

It was canvassed for the Appellants that it is settled law that in adjudicating upon a case, the Court must hear and determine all pending applications before proceeding to deliver the final judgment therein. On this legal position, reliance was placed on the cases of:

(1) Eriobuna Vs. Obiorah 099928 NWLR (pt. 616) p. 622 at p. 642;

(2) Ogar v. James (2001)10 NWLR (pt. 722) p.621 at p- 638 and

(3) Mokwe v. Williams (1997211NWLR (Pt. 5282p. 309 at p. 321.

The Appellants’ learned counsel reiterated that the true test of fair hearing is the impression that a reasonable person who was present at the trial would have. Reference was made regarding this legal position to the cases of:

(1) Okafor v. A. G, Anambra State (1991) 6 NWLR (Pt. 200) p. 659 and

(2) Mohammed v. Kano N/A (1968)1 All NLR p. 424

The said Appellants’ motion was basically to bring in the originals of registers of voters so that the various colours used for the ejection conducted within that Federal Constituency could be clearly identified. It was obvious that the features were not visible on the Certified True Copies, which were merely photocopies the originals plus the certification thereon. The outcome of the application which the Tribunal failed to hear and determine would have affected its decision thereon one way or the other. Indeed, the refusal occasioned a miscarriage of justice to the Appellants.

The Appellants’ learned counsel submitted further that the law is trite that where there is a breach of the rules of fair hearing, the proceedings of the Court or Tribunal must be set aside. He relied on the case of: Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) p. 319 at p. 399.

In the instant case, it is obvious that the right of the Appellants had been breached. The judgment in the petition was delivered during the subsistence of the motion of the Appellants. Consequently, the judgment and the entire proceedings of the trial Tribunal became vitiated and are liable to be set aside.

The learned counsel for the Respondents replying under issue one submitted that the trial Tribunal heard the Appellants’ motion dated 2nd day of October, 2007 before it proceeded to take final addresses of counsel. The counsel to all the parties made submissions in respect of the reliefs sought in the motion, the trial Tribunal delivered its ruling thereon and thereafter delivered its judgment in the petition. Therefore, the fundamental right of fair hearing of the Appellants was not breached in any way. They were given ample opportunity to call all witnesses they chose to call. They tendered all the documents they deemed relevant and cross-examined all the witnesses of the Respondents. At the end their counsel delivered his final address. The pre-trial conference was concluded on 14/08/07, while the Appellants’ closed their case on 5/09/07. All along, the Appellants knew that the originals of the voters register were in existence in the custody of INEC but they did not deem it necessary to obtain the documents. Rather, they waited until the case had been concluded and adjourned for addresses of counsel before filing an application to have the case reopened.

It was contended by the learned counsel that granting the Appellants’ application to reopen the case would have amounted to a breach of fair hearing to and overreached the Respondents. For, fair hearing is for all parties in a case. He relied in this regard on the case Of: Newswatch Comm. Ltd v. Atta (2006) 12 NWLR (pt. 9932 p. 144 at pgs. 168 – 169.

I have considered the submissions of counsel for the parties with the judicial authorities relied upon by them in this appeal. The Appellants have alleged that they were not given fair hearing by the trial Tribunal at the trial of the petition filed by them.

It is an age-long settled principle of law that the fundamental requisite of due process and procedural fairness entails affording parties the opportunity to be aware that a matter is pending for or against them, make an informed choice whether to acquiesce or contest and be heard in the matter. This is the time-honoured principle of natural justice embodying the ”audi alteram partem” rule which simply means, ”please hear the other side’: The essential feature of fair hearing pursuant to the provisions of Section 36 of the 1999 Constitution is that, a Court or Tribunal as the case may be must hear all sides to a case. Fair hearing demands equal treatment, equal facilities, equal opportunities and equal consideration to all parties involved in a case. See the cases of:

(1) Saleh v. Munguno (2003) 1 NWLR (Pt. 801) p. 221;

2) Military Gov. Imo State v. Nwanwa (1997) 2 NWLR (Pt. 490) p, 675;

(3) Udo-Akagha v. Paico Ltd (1993)4NWLR (Pt. 288) p.434;

(4) Kotoye v. C.B.N (19892) NWLR (Pt. 98) p. 419 and

(5) Adigun v. A.- G, oyo State NO.1 (1987) 1NWLR (Pt. 53) P. 768.

In Alsthom S.A v. Saraki (2005) 3 NWLR (Pt. 911) p. 208 at p. 229, Ejiwunmi JSC (Rtd.) stated:

“There is no doubt at all that the principle of fair hearing is fundamental to all court procedure and proceedings and like jurisdiction the absence of it vitiates proceedings, however well conducted See Salu Vs. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44, Creekay Traders Vs, G.M. Co. Ltd (1992) 2 NWLR (Pt. 222) 132; Atano v. A. – G., Bendel State (1988) 2 NWLR (Pt. 75) 201

Fair hearing, according to our law, envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end It also envisages that the court or tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties.”

See also Okike v. L.P.D.C (2005) 15 NWLR (pt. 949) p. 471 at p. 532 where Pats-Acholonu JSC (of blessed memory) said:

“The expression “fair hearing” which has been variously interpreted in numerous judgments in the common law countries does not require quantitative analysis. Fair hearing denotes and imports the concept and practices speaking jurisprudentially, of a very fundamental tenet which behoves of the court, tribunal or any quasi judicial body to conduct its affairs so transparently open that it accords all the parties involved in any disputation the opportunities of marshalling their case adroitly to their possible best so that a common man in the street can easily see and declare that the person affected has been freely allowed to put his case forward for consideration. You cannot complain of lack of fair hearing when you refuse to co-operate. ”

Therefore, fair hearing is a double edged sword, that is, it is available to all parties, the initiator and the defender of a case. However, in a situation where a party has been granted a reasonable opportunity of being heard but he deliberately refused to avail himself of such an opportunity through his own or his counsel’s, neglect or tardiness, he can not turn round to complain of a breach of fair hearing. See the cases of;

(1) Renolds Construction Coy Ltd Vs. Okpegboro (2000) 2 NWLR (pt. 645) p. 367 and

(2) NDIC Vs. Ecobank Nig, Ltd (2003) 11 NWLR (Pt. 830) p. 93

It is crystal clear from the record that the learned counsel for the Appellants was given the full opportunity to present the Appellants’ case in the trial Tribunal. The main grouse of the Appellants’ counsel is that after the parties had closed their respective ‘cases, the case was adjourned to 2/10/2007 for the adoption of the written addressees of counsel. However, before the adjourned date, the Appellants filed a motion on notice in which the Appellants prayed for:

“1. An Order granting leave to the Petitioners herein to re-open their case and to recall PW2 for the purpose of Further Examination in Chief with respect to the Original Registers of Voters used for the conduct of the Election into the office of the Member representing, Abaji/Kwali/Kuje/Gwagwalada Federal Constituency of the Federal Capital Territory held on the 2nd April 2007 and more particularly the Original Register of Voters of the 33 Polling Units.

2. An Order of this Honourable Tribunal directing the 3rd and 4th Respondents to produce before this Tribunal the Original of the Registers of Voters of the abovementioned Polling Units for the purpose of being examined before the Tribunal by both the Petitioners and the Respondents.
3. An Order of this Honourable Tribunal directing the 4th Respondent- either by himself agents, servants, officers or privies, to attend as the Tribunal’s witness and to produce and tender in evidence the Originals of the Registers of Voters of the abovementioned 33 Polling Units.
4. An Order permitting the Petitioners and the Respondents to cross examine the 4th Respondent or his officers or agents if prayer 3 above is granted
5. An Order granting extension of the time within which the Petitioners shall filed and serve them (sic) Final Address.
6. An Order deeming the Petitioners Final Reply as duly filed and served if the above prayers are granted

On 2/10/07, the Appellants’ counsel moved the motion on notice. Prayers 1 to 4 were opposed by the 1st and 2nd Respondents’ counsel. Prayers 5 and 6 were not opposed. The trial Tribunal granted prayers 5 and 6 but refused prayers 1 to. 4. In respect of prayers 1 to 4 which were refused, the trial Tribunal ruled thus:

“We have seen the application filed this morning at the stage of the proceedings which is for adoption of addresses. This Tribunal having conducted the pre-trial and given all the respective parties full opportunity to present the defence, this Tribunal finds this application at this stage to be belated and not an application that can be taken at this stage of the proceedings”

See lines 27 to 28 at page 375 and lines 1 to 4 at page 376 of the record.

It is less than correct to conclude from the proceedings of the trial Tribunal of 02/10/07 at pages 374 to 378 that the Appellants were not given an opportunity to argue their motion on notice. So also, no reasonable by stander who watched the proceedings of that day would go home saying justice had not been done. The motion was heard and determined accordingly, neither the motion nor any other was pending or subsisting at the time the judgment of the trial Tribunal was delivered on 06/10/07.

I wish to reiterate at this juncture that, the exercise of a Court’s or tribunal’s discretion in granting an application is one that will be exercised judiciously and judicially taking into consideration the peculiar facts if each case.

An election petition going by its peculiar traits is held to be ”sui generis” As I earlier on in this judgment stated, one factor or feature which marks out election proceedings in the sphere of adjudication is that time is of essence in the hearing of petitions, appeals arising therefrom and other related matters. This conclusion is evident from the community reading of the provisions of the Electoral Act, 2006 in its Sections 141 and 148; Paragraphs 7(2), 12(1), 16(1), 17(1), 24(1) and 51 of the First Schedule to the Act and the Practice Direction No.2 of 2007. From the provisions of the 1999 Constitution of Nigeria, election petitions are special proceedings completely distinct, divorced and separate from civil proceedings. The peculiar nature of election petitions has been affirmed in several judicial decisions. See the cases of:

(1) Obi v. Mbakwe (1984) NSCL Vol 15p- 127;

(2) Abdulahi v. Elayo (993) 1NWLR (Pt. 268) p. 171 and

(3) Ajibola v. Ajadi (2004)16 NWLR (Pt. 898) p. 91

In the case of: Orubu v. INEC (998) 5 NWLR (Pt. 94) p. 323 at p. 347, the Supreme Court held that

”An election petition is not the same as ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which by reasons of their importance to the well-being of a democratic society, are regarded with an aura that place them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute. ”

Therefore, it is the spirit of the laws relating to elections that as much as possible, petitions should be given expeditious adjudication to enable the parties know the result of the election in which they participated. See Section 148 of the Electoral Act, 2006 and the cases of:

(1) Ogbebor v. Danjuma (2003) 15 NWLR (Pt. 842) p. 403 and

(2) Balogun v. Odumosu (1999) 2 NWLR (Pt. 592) p. 590

To my mind, the trial Tribunal did not breach the rules of fair hearing in its conduct of the trial of the Appellants’ petition. It properly refused to have the case of the Appellants re-opened at that particular stage of the proceedings for the reasons enumerated above. I hold that the proceedings especially those of 2/10/07 and the judgment delivered by the trial Tribunal on 6/10/07 are valid.

This issue fails and it is hereby resolved against the Appellants.

I shall now take issues two, three and four together because they are intertwined. What the Appellants are calling upon this Court to determine under the issues are: firstly, whether it was the Appellants or the 1st Respondent that had the bounden legal duty to produce at trial the originals of the registers of voters of the units in dispute in establishing the questions of accreditation and over-voting in those units? Secondly, whether either generally or specifically the Appellants adduced sufficient evidence to substantiate their allegations of irregularities on the part of the Respondents at the election which swayed the lead thereat in favour of the 1st Respondent? Thirdly, whether this Court should not declare the Manual forElection Officials, 2007 null and void?

ISSUES TWO, THREE AND FOUR

Whether or not, on the basis of the pleadings and the evidence adduced before the Tribunal more particularly the Certified True Copies (CTC) of the Registers of Voters, the burden to produce the Originals of the Registers Voters still rested on the Appellants?

Whether or not the Tribunal was right in its findings that without the evidence of the witnesses from the polls, it was impossible to prove over-voting?

Whether or not, there was sufficient legally admissible evidence upon which the Tribunal supported the findings that the Appellants won the majority of lawful votes cast at the Election?

It was contended for the Appellants that from the pleadings and the evidence adduced before the trial Tribunal by the Appellants more particularly the certified true copies of the registers of voters, the burden was shifted to the 1st Respondent to produce the originals of the said registers of voters.

The concept of the burden of proof of any particular fact in issue is regulated by Sections 135 to 146 of the Evidence Act. In this regard, reference was made to the cases of:

(1) Oladipupo Vs. Olaniyan (2000) 1 NWLR (Pt. 642) p. 556 at pgs. 564 – 565 and

(2) Olohunde Vs. Adepoju (2000) 10 NWLR (Pt. 676) p. 562 ‘atp.’599

In civil cases, the burden of proof is not static, it shifts or moves from one side to the other until the matter is resolved. Therefore, it is important to determine when this burden shifts otherwise, the responsibility of proving a particular fact may be inadvertently put on the wrong party. When this happens, the decision eventually reached cannot be good in law. Reference was made to the case of:

Olohunde Vs .Adepoju supra.

The Appellants’ learned counsel canvassed that to prove cases of non-accreditation of voters, the register of voters is the central piece of evidence. By the provisions of Section 50 (2) of the Electoral -Act, 2006, it is in the register of voters that indications are made as to the persons who voted at a particular election. It is also not possible for one to vote without his or her name being marked or ticked in the register of voters. He relied on the case of: Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) p. 487 at p. 578.

Therefore, it is by comparing the register of voters with Form EC8A, the statement of results, that one can establish the case of over-voting. Also Form EC8Aremains the most authentic document by which the total number of votes cast at any election can be established. Therefore, the place of the register of voters in proof of over-voting cannot be over emphasized. On this position, reference was made to the case of: Njiokwuemeni Vs. Ochei (2004) 15 NWLR (Pt. 895) p. 196.

According to the Appellants’ learned counsel, the Appellants produced at the trial Tribunal the certified true copies of all the registers of voters for the thirty-three polling units in dispute. These were tendered in evidence with the consent of the parties. The PW1 gave evidence of the fact of over-voting. The PW2 gave an arithmetical computation as to the number of invalid votes credited to the 1st Respondent which if deducted would have given the Appellants a lead at the election.

The indication required to be made in the register of voters under the provisions of Section 50(2) of the Electoral Act 2006, is by ticking the names of the voters with Red Ink. However, the certified true copies being the photocopies of the original but certified, any, coloured feature on the originals will not appear on them. This was admitted by the PW2who maintained that, he saw and examined the originals of the registers of voters. Upon the tendering of the certified true copies of the registers of voters, the burden was shifted to the 1st, 2nd and 3rd Respondents to produce the originals thereof. It was contended for the Appellants that by Section 135 of the Evidence Act, since the Appellants have produced the certified true copies which if declared sufficient, then the party who will loose if the originals were not produced, in this case the 1st and 2nd Respondents, will be the party on whom the burden of proof lies. And if no originals were produced, the Appellants would have succeeded in showing that no voter was accredited and that the votes were merely allocated.

It was further contended for the Appellants that the trial Tribunal’s finding that it was not possible to know the names ticked in red was erroneous for the only inference the Court could make in the circumstance was that there were no red ticks and consequently the results of election from those units were totally null and void. What is more, by the provisions of Section 95(e) of the Evidence Act, the PW2 was permitted to give an oral account of the contents of the document, that is, the registers of voters as a person who himself vied them. Hence the testimony of pw2 that he inspected the registers of voters and that he saw and counted the number of voters whose names were ticked using red ink ought to have been accepted by the trial Tribunal. The PW2 testified that certain people were accredited though the number of those so accredited did not tally with the number of votes cast. It is by production of the registers of voters that non-accreditation would be proved. In the absence of any red ticks on the certified true copies of the registers, the only inference that can be drawn is that copies of the registers, the only inference that can be drawn is that the PW2 saw some red ticking’s on the originals. The testimony of PW2 and the certified true copies of the registers therefore support the case of the Appellant that there was non-compliance with the provision of the Electoral Act as they relate to the accreditation of voters.

Further, the learned counsel for the Appellant submitted that the evident that the evidence of non-accreditation of voters is documentary in nature. The documents are the registers of voters, Exhibit P9 the Manual for the Election Official 2007 and the statements of results from polls recorded in Form ECBA. All these documents speak for themselves. They are public documents and are evidence themselves. As soon as they are produced before any court or tribunal, they must be accepted and acted upon. The trial Tribunal therefore erred in law to hold in the face of these documents that documents, there was no shred of evidence to support malpractice in respect of the votes cast: On this position, he relied on the cases of:

1. Aiki Vs. Idowu (200629 NWLR (Pt, 984) p. 47and
2. Ogbunyiya Vs. Okudo (1979) 3 LRN SC p. 318 at p. 324

The Appellants’ learned counsel argued that under the 1982 Electoral Act, the evidence of a person or witness who was at the polling station and saw what happened at the time of accreditation was required, while under the 2006 Electoral Act this is not a requirement. Rather, it is the registers of voters that are needed to prove accreditation. The manual requires that the register of voters be marked in certain colours to show the different types of election. The election into the National Assembly and the Presidential election are to be marked using red ink. He referred to the cases of;

(1) Nweke Vs. Ejims (999) 11NWLR (Pt. 6252 p. 39 and

(2) Ajadi Vs. Ajibola (2004)16 NWLR (Pt. 8982p. 91.

It was canvassed for the Appellants that the framers of the Manual did not take into consideration the attributes of certified copies of documents. Otherwise, other forms of marking of the registers of voters instead of the use of coloured ink would not have been adopted. He therefore urged this Court to declare the provisions of the said Manual null and void.

The Appellants’ learned counsel distinguished the present case from the case of: Boni Haruna Vs. Modibbo supra. In the latter case, evidence was led orally and registers of voters were not tendered. Whereas in the instant case evidence was taken on oath in written depositions and not vide the traditional style of a witness being examined orally in the witness box. Also the registers of voters of the relevant polling units were admitted in evidence with the consent of the parties. The trial Tribunal failed to take into account the nature of the evidence tendered before it in proof of the petition .

The Supreme Court laid it down that once public documents are produced then they can be acted upon by the court without any formal application to tender them being made. Reference was made in this regard to the cases of:

1. Aiki Vs. Idowu Supra and
2. Ogbunyiyo Vs. Okuda supra.

The Appellants tendered Form EC8Athat is, the statements of results of thirty-three polling units which showed that the number of votes cast in those polling stations surpassed the number of voters accredited in some of the units, while voters were not accredited before they voted in some of the polling units. Therefore, the Tribunal wrongly’ held that the Appellants did not give computations as to the number of votes they would have scored after the deduction of the alleged invalid votes and the nullification of the results in the thirty – three polling units in dispute.

In the reply of the Respondents’ counsel, it was canvassed for the Respondents that the certified true copies of the registers of voters tendered at the trial were intended to be and not erroneously tendered. The Appellants knew about the existence, non dispensability of the originals of the voters registers and that they could not identify the different colours on the photo-copies yet they went ahead to tender the certified true copies. The position of the evidence at the close of the Appellants’ case was that, they failed to prove the number of non-accredited voters that voted and the number of units where votes recorded surpassed the total number of those accredited.

The learned counsel for the Respondents agreed that the principle of law is settled that the burden of proving a particular fact is’ upon the party who asserts it and who will fall if no evidence is adduced in support of the fact, regard being had to any presumption which may arise from the pleadings of the parties. The onus of proof is however not static but continually shifts from side to side in respect of the facts in issue until it finally rests on a party against whom judgment will be given if no further evidence is proffered by that party. Understandably, it is the plaintiff who has a duty to prove his case. Where he fails to prove his case on the balance of probabilities or on the preponderance of evidence, he will not obtain judgment, but his case will crumble and be dismissed. On this legal position, reliance was placed on the cases of:

(1) African Trust Bank Ltd Vs, Partnership Investment Company Ltd (2004) All FWLR (Pt. 192) p.167 at p.197 and

(2) Awuse Vs. Odili (2005) All FWLR (Pt.261) p. 248 at p.313

It was contended for the Respondents that, since it was the Appellants who alleged in their petition that some non-accredited voters voted and that the number of persons who voted were more than the number of registered voters in the election; evidence must be adduced by them to establish that assertion otherwise the Appellants’ case would fail. It is after the Appellants must have tendered .the originals of the registers of voters containing the red tickings showing that non-accredited voters voted that the onus of proof will then shift to the Respondents. The Respondents’ learned counsel canvassed further in answer to issue three that the mere tendering of the certified true copies of the registers of voters from the bar cannot establish the number of voters accredited by red tickings in front of their names, without evidence to that effect. The burden was still on the Appellants and not the Court to count the number that were ticked in red to establish the number of persons accredited in each unit. Reliance was placed in this regard on the case of: Terab Vs. Lawan (1992) 3 NWLR (pt. 231) p. 569 at p. 490.

Evidence in law is the same whether oral or by sworn statements on oath. The tendering in evidence of the registers of voters is immaterial, once they possess no evidential value. They are as good as not tendered. On the evidential value of the registers of voters, the law is settled that a document which is of no probative value is as good as not admitted in evidence in the first place. On this legal position, reference was made to the case of: Akibu Vs. Oduntan (1992) 2 NWLR (Pt. 222) p. 210 at p. 231. The mere tendering of a public document from the bar does not give it probative value. Rather it is necessary for it to relate to a specific aspect of the case. The Appellants failed to establish the relevance of the registers of voters in this case.

The Respondents’ learned counsel canvassed further that the findings ‘of’ the trial Tribunal that with the deduction of 417 votes established to be unlawful, the 1st Respondent still led in the election with 4,108 votes was right. The finding is In line with the decision in case of: Harun Vs. Modibbo supra at p. 548.

On the call on this Court to declare Exhibit ‘P9’ null and void, the learned counsel for the Respondents contended that this point was never raised before the trial Tribunal. It was also neither decided upon by the trial Tribunal nor appealed against by the Appellants. What is more, the trial Tribunal lacks the jurisdiction to consider this question pursuant to the jurisdiction vested on it by the provisions of Section 145(1) of the Electoral Act, 2006 and Section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999.

On the first point posed by me above relating to the proper accreditation of voters and over-voting at the election in dispute, it was the Appellants who had alleged that some of the voters were not properly accredited; and that there was over-voting in about thirty-three polling units in the constituency under consideration.

It is an established common Jaw principle that civil cases of which ejection cases are a specie are decided on the preponderance of evidence and the balance of probabilities. To put it in another way, the standard of proof required in civil cases is that of preponderance of evidence only. That is, when in a matter two sets of facts are put on an imaginary scale and it tilts to one side, the side to which it tilts has the weightier materials, the facts and law elicited would then preponderate in favour of the fact that the party is putting across.

This common law principle was codified in Section 135 of the Evidence Act Which provides that he who asserts must prove. In civil cases basically and primarily, it is the plaintiff who asserts, the burden therefore is upon him to prove his case with cogent and credible evidence. The plaintiff therefore has the burden of proving his claim and his case is liable to be dismissed where he fails to discharge the burden. In this regard, see the cases of:

(1) Amadi Vs.Orisakwe (2005) 7NWLR (Pt. 924) p. 385;

(2) Onwuchekwa Vs. Ezeogu (2002) 18 NWLR (pt. 799) p.333;

(3) Ayinde Vs.Abiodun (1999) 8NWLR (pt. 614) p. 587;

(4) Mogaji Vs. Odofin (1978) 4 SC P.91;

(5) Onwuama Vs.Ezeokoli (2002) 5NWLR (pt. 760) p. 35 and

(6) Motunwase Vs. Sorungbe (1988) 5 NWLR (Pt. 92) p. 90

Regarding the shifting nature of the burden of proof in civil cases, the law is trite that where in a case the plaintiff discharges the primary burden of proof on him, the burden shifts to the defendant to rebut the plaintiff’s case. See the case of: Daba Vs. Abdullahi (2005) 17 NWLR (Pt. 923)2- 181

The petition of the Appellants was grounded on the allegation of diverse violations of the provisions of the Electoral Act of 2006. In .particular, allegations of corrupt practices, impersonation, undue influence, illegal manipulations of election materials, non-accreditation of voters, thuggery, over-voting at Abaji, Kwali and Kuje area councils by the 1st , 2nd and 3rd Respondents and their agents, to their knowledge, with their consent and authority at the election in dispute. See the Appellants’ Amended petition at pages 181 to 208 of the record of appeal. In particular, the grounds upon which the, petition was predicated are paragraphs 11(A) (a)-(g) and (6) (1) – (5) of the petition at pages 184 to 186 of the record of appeal. The primary burden is therefore on the Appellants to prove all their said claims.

As rightly held by the trial Tribunal and submitted by counsel for all parties, it is if the party who asserts the existence of a particular fact in his pleading succeeded in adducing credible evidence in prove of such fact that he is said to have discharged the burden of proof that rests on him. The burden will then shift to his adversary to prove that the fact established by the evidence would not on the preponderance of the evidence result in the court giving judgment in favour of the party, It is therefore correct as stated by all that the burden of proof in civil cases is not static or rigidly on one side. It shifts from one side to the other depending on the state of the evidence led in support of each of the parties’ case.

However, an allegation of the commission of a crime both in criminal and civil cases must be proved beyond reasonable doubt. Consequently, the allegation of manipulation of election materials, results and all illegal acts during elections must be proved beyond reasonable doubt.

It is therefore inappropriate for a court or tribunal to infer that a particular candidate at an election was responsible for the illegal acts committed during the election in the absence of evidence which shows beyond reasonable doubt that he himself was responsible for the alleged acts.

The general rule regarding admissibility of documents is that any statement made by a person in a document and tending to establish that fact shall on the production of the original document be admissible as evidence of that fact, see Section 91(1) of the Evidence Act. The exception to this general rule is that where the original document can not be produced, a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order approved by a Court may be produced in lieu thereof, see Section 91(2) (b) of the Evidence Act; these are referred to as primary and secondary evidence respectively. What is more Section 135(1) of the Evidence Act provides that whoever desires any court or tribunal to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See also the provisions of Sections 135(2), 136, 137, 138, 140 and 141 of the Evidence Act regarding the production and the legal effects of facts in evidence.

Further to the relevant provisions of the Evidence Act reiterated above, Paragraph 4(1) – (3) of the Practice Direction of 2007 place an additional burden of the proof of the existence of a fact on the

party who asserts the fact if the fact is disputed by his adversary.

Paragraph 4(1) – (3) state that:

“4-.(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open Court.

(2) Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where he is not represented by a Legal Practitioner.

(3) There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or exhibits referred to in the deposition.”

From the above stated statutory provisions, I am at one with the trial Tribunal that the Appellants herein had a heavy ask and the primary onus to prove the allegations levelled against the Respondents in the petition. The standard and quality of proof must therefore be in tune with the provisions of the Evidence Act as enumerated supra. In this regard, I agree with the learned counsel for the Respondents that to prove the allegation of the Appellants that non-accredited persons voted in the thirty-three polling units in dispute because the total number of votes cast surpassed the number of voters accredited. The Appellants had the legally bounden duty to produce in evidence the originals of the relevant registers of voters in those units.

The Appellants ought to have adverted to the Manual for Election Officials, 2007, Exhibit P9, which requires that for purposes of accreditation of voters, the marking of names of voters must be done with red ink. This in essence makes it mandatory that the originals of the registers of voters must be tendered in evidence in establishing the voters who were properly accredited before they voted. Curiously, almost throughout the length and breath of the Appellants’ brief of argument, the learned counsel for the Appellants agreed so to speak that it is only the originals of the registers of voters that can reveal those voters who were accredited before they cast their votes. Yet, the Appellants went ahead to tender the certified true Copies of the said registers of voters.

The learned counsel for the Appellants contended that with the tendering in evidence for the Appellants the certified true copies of the registers of voters, the primary onus of proof placed on the Appellants had been discharged and the onus became shifted to the Respondents to contradict the assertions of the Appellants With due respect to the learned counsel for the Appellants, that contention is legally misplaced and misconceived. In my view, the Appellants had failed to discharge the onus legally placed on them. This is the reason I agree with the view of the trial Tribunal, indeed that is the trite law that the Appellants must rely on the strength of their case and not on the weakness of the defence. The contents of the registers of voters in the given circumstances of the case of the Appellants could only be proved by primary and not secondary evidence pursuant to Section 96 of the Evidence Act. The case of the Appellants does not fall within the exception to the general rule. I have perused the record of appeal and failed to find that the Appellants had any difficulty in producing the originals of the registers of voters so as to give them the legal indulgence of producing the copies thereof in the alternative pursuant to the ‘provisions of Section 91(2) (b) of the Evidence Act, that is, establishing their assertion by secondary evidence. Although, the Appellants alleged that the originals of the said registers of voters were in the possession of the 3rd Respondent against whom they sought to prove the documents, it is not in the printed record that the Appellants made any attempt to request the 3rd Respondent to Produce the originals of the documents by giving them the notice to produce the documents in line with the provisions of Section 97(1) (a) of the, Evidence Act. Rather, they waited until the conclusion of the trial and when addresses of counsel were to be delivered before filling an application to open their case ostensible for the purpose of rendering the original of the document in dispute. I have already found under issue one supra, for the reasons stated therein therein that the relevant reliefs sought in the said application were right refused by the trial Tribunal.

Accreditation is a prerequisite for a valid vote at the conduct ofelection, To put it in another way, before a vote can be validly returned, there must have been accreditation of the voter. See the cases of:

(1) Nweke Vs. Ejims and

(2) Haruna Vs. Modibbo supra

I cannot agree more with the finding of the trial Tribunal in this regard. In its judgment at page 425 of the record of appeal, the trial Tribunal found out that:

“Without the original voters register, it will be impossible to make any deductions as to over-voting because over-voting will arise when more voters than the registered number of voters cast votes in a polling station, This is so in this case because the voters registers produced were photocopies whose purported ticking’s of accredited voters done in colours cannot be identified on the photocopies.”

What’ is more by the combined effect of the provisions of Sections 136 and 137(1)(2) of the Evidence Act, the burden of proof of a fact in issue lies on the person who will fail if no evidence is given by either side, regard being had to any presumption that may arise from the pleadings. Where sufficient evidence is adduced by the party who asserts, the burden of proving the contrary then shifts to the other person against whom judgment will be given if no further evidence is adduced. Seethe cases of:

(1) Ayagv Vs. Nnamani (2006) 8 NWLR (Pt.981) p.160 at pgs.186 -187:

(2) Kadilinye Vs. Odu (1935) 2 WACA p. 336:

(3) Ratimi Vs, Safarili (1999) 6 NWLR (pt. 606) p.305 and

(4) Kalga Vs. Kolga (1999) 6 NWLR (Pt. 608) p. 639.

The Appellants relied heavily on the testimonies of PW1 and PW2, most especially PW2’s. Unfortunately assuming without conceding that PW1 and PW2 were accredited party agents of the Appellants, and they were not; their testimonies were very unhelpful to the case of the Appellants. Such testimonies are not good enough for any court or tribunal to hold on to. PW2 said he examined the originals of the registers of voters and counted the number of those voters who were properly accredited. He claimed he saw the red tickings in front of their names. The alleged documents viewed by him were not those tendered in evidence. The certified true copies that were tendered in evidence before the Tribunal did not tally with what PW2 claimed he saw. The process of adjudication is not a child’s play, it is a very serious and technical business. There are due processes laid down for the conduct of cases in a court or tribunal of law. These must be adhered to strictly by all counsel and parties thereof, enforced by the courts step by step and precept by precept subject to the recognisable exceptions. It is therefore not in the place of a court to engage in imaginative inferences in the alternative of hard established evidence.

The answer to my first poser above will therefore be that it was the Appellants that had the legally bounden duty to produce the originals of the registers of voters in dispute at trial in establishing that there was over-voting in the alleged polling units. It was not the duty of the Respondents to produce the originals of the said documents. The fact that they were pleaded placed the ball in the court of the Appellants to adduce concrete evidence to disprove the contents therein. The complaint of the Appellants regarding the admissibility of the certified true copies of the relevant registers of voters is not in order, it is improper and this Court is not favourable disposed to accepting and allowing it without compliance with the laid down due procedure and process in that regard.

Concerning my second poser, the allegation that the 1st and 2nd Respondents and their agents perpetrated some malpractices, the law is trite that when an allegation of this nature is made, it is the duty of the petitioner, in the instant ease, the Appellant to establish that the perpetrators actively committed the malpractices. The particulars of and actual place(s) where tile alleged malpractice(s) which prevented the electorate from exercising their franchise occurred must be disclosed. See the case of: Opia Vs. Ibru (1992) 3 NWLR (Pt, 231) p, 658,

In the instant case, the Appellants failed to meet these requirements of the law.

Furthermore, in the case of: Wall Vs. Bafarawa (2004) 16 NWLR (Pt. 898) p. 1, it was held that:

“Where in an election, the allegation is that malpractices or corrupt practices were committed by agents of the person returned as duly elected, the person challenging the election must prove:

(a) That the alleged agent claimed to be the agent of the elected person.

(b) That the offences were committed in favour of the elected person:

(i) with his knowledge or

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

Where the petitioner fails to establish the above, then he cannot attribute any offence committed by the agents to the candidate. ”

The Appellants also alleged that undue influence was brought to bear on the voters. This allegation was not supported by any adduced evidence. What is more, under the Electoral Act, 2006, undue influence is not a ground of challenging a winner of an election. See the case of: Buhari Vs. Obasanjo (2005) 13 NWLR (Pt. 941) p. 148, where it was held that undue influence is not recognizable as a ground in election petition and that any person who Is desirous of Prosecuting such offence would need to file a charge in the normal criminal proceedings.

Apart from the issue of disputed documents, the trial Tribunal after the evaluation of the evidence adduced by the Appellants’ witnesses found that the evidence of the said witnesses was not credible. This is in respect of the allegations of corrupt practices, impersonation, undue influence, offences in respect of ballot papers, register of voters, non-accreditation of voters, non-completion of necessary forms, illegal practices, aiding and abetting, thuggery and other vices levelled by the Appellants against the Respondents and some alleged faceless agents of the pt and 2nd Respondents.

By the provisions of Section 146(1) of the Electoral Act, 2006, an election shall not be liable to be invalidated by reason of noncompliance with the provisions of the Act if it appears to the Ejection Tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and the non-compliance did not affect substantially the result of the election. This Section therefore vests an election Tribunal with the powers to decide from the evidence presented before it in each case whether an alleged ‘non-compliance is substantial enough to warrant nullification of an ejection. Seethe case of: Bahari v. Obasanjo supra.

An appeal is said to be a continuation of the hearing process, and this Court can invoke its powers under Section 15 of the Court of Appeal Act, 2004 to generally assume jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court as a court of first instance. What this means is that this Court can evaluate evidence which the trial Tribunal failed or neglected to evaluate. However, in the instant case, the relevant documents were not properly tendered in evidence, an attempt at evaluating the evidence will therefore be an exercise in conjecture. For an exercise in conjecture or guesswork or hypothesis or academics is “ultra vires” the powers conferred on this Court by the said Section 15 of the

Court of Appeal Act.

The learned counsel for the Appellants had urged upon this Court to hold that the certified true copies of the registers of voters tendered as proper. I am of the opinion that this Court has no authority to do so since these and other documents purportedly tendered in evidence were not tendered through the proper channel, that is, through any of the Appellants’ witnesses. The said documents were seriously disputed by parties, hence, in compliance with the provisions of Paragraph 4(1) and (3) of the Practice Directions reproduced supra, the documents should have been tendered through the appropriate witnesses of the Appellants. I am of the view and I hold that the trial Tribunal rightly discountenanced the said documents. What is more, it is settled law that a party relying on documents in proving his case must relate each of such documents to the specific area of his case in respect of which the document is being tendered in support of his case, that is, there must be a link between the documents and specific areas of the petition. The Appellants have failed to comply with this legal requirement. See the cases of:

(1) Jalingo Vs. Nyama (1992) 3 NWLR (Pt. 231) p. 538,’

(2) Terab Vs. Lawan Supra and

(3) Hashidu Vs. Gale (2006) EPR p. 789 at pgs. 814 -815

As earlier on reiterated in this judgment, documentary evidence is one of the vital methods by which a petitioner is required to substantiate his allegation in his petition. The general rule that governs the admissibility of documentary evidence is equally applicable to documents to be tendered in election petitions. See the case of: Ojukwu Vs. Obasanjo (2004) 1 EPR p. 626 at p. 673. Also in the case of: Alao Vs. Akana (2005) 11 NWLR (Pt. 935) p. 160 at p. 178, the Supreme Court held that:

“It bears repetition to say that the case of the Appellant failed because the evidence led at the trial did not prove what was alleged in the Statement of Claim.

It must be noted that several documents were tendered pursuant to the claim but it must be borne in mind that admitted documents useful as they Could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport. ”

The arguments of the learned counsel for the Appellants that the certified true copies of the registers of voters and others documents were tendered with the consent of parties and that the documents being public documents need not even be tendered through the normal channel are of no moment and indeed legally misconceived. The trial Tribunal therefore rightly held that it was incumbent on the Appellants to call witnesses to establish substantially the facts pleaded in their petition. Consequently, the Appellants failed to make enough efforts to establish the over-voting they alleged.

The Appellants equally alleged that the 1st Respondent did not score the majority of lawful votes cast at the election in dispute. The trial Tribunal found that the Appellants were able- only to establish that there was multiple thumb-printing of a total of four hundred and seventeen (417) ballot papers out of the seven hundred and six (706) disputed by the Appellants. However, the trial Tribunal held that the Appellants’ witnesses failed to adduce direct and positive evidence to substantiate the allegation of non-compliance with the provisions of the Electoral Act and Manual for Ejection Officials. There were no substantial irregularities capable of rendering the result of the election in dispute null and void. I hold that there were flaws in the case of the Appellants as enumerated supra, the trial Tribunal rightly held in that regard. Hence, even if the entire number of votes disputed by the Appellants were held to be invalid and deducted from the total number of votes credited to the 1st Respondent, it would still not advance the case of the Appellants. That is if seven hundred and six (706) votes were deducted from the thirty seven thousand nine hundred and ninety five (37,995) votes declared for the 1st Respondent, the 1st Respondent’s score would be thirty-seven thousand two hundred and eighty nine (37, 289) votes. The margin would therefore be three thousand eight hundred and nineteen (3, 819, votes. For the votes credited to the 1st Appellant were thirty three thousand four hundred and seventy (33, 470) votes. This would still not turn around the result of the election in favour of the 1stAppellant.

The answer to my second poser supra will be that the allegations of irregularity, over-voting were not established; despite the fact that some votes were declared invalid and deducted from the total votes credited to the 1st Respondent, the 1st Respondent still had the majority of the lawful votes cast al tile election in dispute.

On the submission of the learned counsel for the Appellants urging this Court to declare null and void the Manual for Election Officials, 2007, I have no hesitation ill discountenancing this submission.

Sections 285(1) of the Constitution of the Federal Republic of Nigeria, 1999 and 145(1) and (2) of the Electoral Act, 2006 provide respectively as follows:

“285.-(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-

(a) any person has been validly elected as a member of the National Assembly

(b) the term of office of any person under this Constitution has ceased.

(c) the seat of a member of the Senate or a member of the House of Representatives has become vacant; and

(d) a question or petition brought before the election tribunal has been properly or improperly brought.

145.-(1) An election may be questioned on any of the following grounds,

(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election”

(b) that the election was il1va!ld by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) that the respondent was not duly elected by majority of lawful votes cast as the election; or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. ”

By the community reading of the above reproduced provisions, it is patently clear that the trial Tribunal lacks the jurisdiction to determine the validity or otherwise of the Manual for Election Officials even if the matter was thrust at the Tribunal in the first instance. It would have been regarded as and I am also of the firm view that it is an improperly brought question. What is more, the findings of the trial Tribunal are in relation to the questions raised by the Appellants in their petition. The legality or otherwise of the Manual was neither pleaded nor submitted upon at the trial. The Tribunal did not make any finding in respect thereof hence, the point did not arise from the judgment of the trial Tribunal. The Appellants are not only forbidden from raising it in this appeal, this Court is equally forbidden from making any pronouncement on it one way or the other. See the cases of: –

(1) UBA Plc. Vs. ACB (Nig) Ltd (2005)12 NWLR (Pt, 939) p. 232 at p. 262 and

(2) Okene Vs. Orianwo (1998) 9 NWLR (Pt. 566) p. 408.

Consequent upon my above line of reasoning and conclusions, issues two, three and four suffer the fate of failure. They are hereby resolved against the Appellants.

On the whole, I hold that the Appellants have not made out any case compelling enough to warrant disturbing the trial Tribunal’s sound findings of fact. The Appellants have failed to adduce credible and sufficient evidence to prove any case of non-compliance or breach of the Electoral Act, 2006 (save as stated supra) and the Manual for Election Officials, 2007. The Appellants having failed to discharge the burden placed on them to prove their case, the trial Tribunal was therefore right in dismissing their petition. See the case of: Kalgo Vs. Kalgo Supra.

I hold that the ejection and return of the 1st Respondent, Isah Egah Dobi to the office of Member of the House of Representatives, National Assernbly representing the Abaji/Gwagwalada/Kwali/Kuje Federal Constituency of the Federal Capital Territory Abuja are hereby declared valid and accordingly upheld.

I find no merit in this appeal and it is hereby dismissed accordingly. The judgment of the National Assembly Election Petition Tribunal holden at the Federal Capital Territory, Abuja delivered on the 6th of October, 2007 is affirmed.

I make no order as to costs.

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Other Citations: (2008)LCN/2755(CA)