Barr. Uzoamaka Lawrencia Onyeama V. Barr. Ike Ekweremadu & Ors (2009)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A

This is an appeal against the National Assembly/Governorship and Legislative Houses Election Petition Tribunal Holden at Enugu Coram: Hon. Justice S.K. Otta (Chairman), Hon. Justice W.A. Omar (Member), Hon. Justice B.G. Sanga (Member), Hon. Justice M.A.A. Adumein (member) and Hon. Justice N. Musa (Member) in Petition No. NAGL/EPT/EN/NA/34/07: BARR. UZOAMAKA LAWRENCIA ONYEAMA V. BARR. IKE EKWEREMADU & 91 ORS. delivered on the 20th November 2007. The Petition of the Appellant as Petitioner in the Tribunal below can be found at pages 28 – 39 of volume 1 of the Record of Appeal and is reproduced in its entirety below –

1. Your Petitioner Uzoamaka L. Onyeama was the ACTION CONGRESS (AC) candidate at the above election or claims to have had a right to contest or be returned at the above elections; and your petitioner states that the election was held on the 21st day of April, 2007 when Uzoamaka L. Onyeama and Ike Ekweremadu and others were candidates.

And your petitioner states that the elections was marred by TOTAL NON COMPLIANCE OF THE ELECTORAL ACT, 2006; Sections 28, 29, 44, 47, 48, 50, 53, 54(1)(2), 59 62, 64, 72 etc massive irregularities, carting away of electoral materials, absence of electoral officials, thuggery, falsification, non availability of voters register.

2. Your Petitioner states that though the senatorial election of the 21st April, 2007, was marred by these irregularities, with the connivance of INEC officials, Police and army, yet INEC declared Ike Ekweremadu winner. The petitioner has not been able to obtain the scores she had as a candidate nor the result sheets from the 2nd or 4th respondent, and the 4th respondent failed to exhibit the result of the purported election on the notice board of 2nd respondent’s office in Enugu and its website as prescribed by S. 72 of the Electoral Act 2006. The petitioner will rely on correspondence with INEC and its agents but which complaints and request were ignored by 2nd and 4th respondent and other addressees and Web site searches of INEC.
3. In the morning of 21st April, 2007, the petitioner left her village Eke in Udi Local Government by 6.30am to Enugu State INEC Office. On getting to INEC Enugu Office the petitioner was informed by the security men who barricaded the main road that all election materials have been distributed and taken to various local Government Police Station. We moved immediately to Udi Local Government Police headquarters in Udi. On getting at the Police Stat ion petitioner confirmed that the election materials for the Senate, House of Representative were in their custody but the Presidential materials were still being awaited and on account of the non-arrival of the Presidential materials there will be no distribution until the materials arrived. I left my Udi Local Government Agent behind at the police Station to monitor situation and event as they unfold. We moved to Ezeagu Local Government police station where the whole main-road to the police station was blocked by army men and policemen.
4. They refused me entry even when I had introduced myself as a Senatorial candidate for the election and my mission was solely to know what is happening to the election materials. We parked to monitor situation. Not quite ten minutes Ogbuefi Ozomgbachi the House of Representatives Candidate for PDP and Abel Chukwu the current speaker came in convoy of cars and were allowed in. At this point I insisted vehemently that I must enter the police station and after much argument I was allowed to go in. As I got in I asked the Ezeagu D.P.O. why only PDP candidate, officers, were inside the police station without one single agent of my party and other parties. Why are other party members, agents, and candidates harassed and obstructed from getting inside the police station when the whole materials for Senate and House of Representative were already inside the police station in full view of these PDP stalwarts and unprotected. He promised me that he will call in the agents of other parties as soon as materials that he was still expecting for the Presidential election arrived. I reminded him of his bias and asked HOW SAFE THE ELECTION MATERIALS WILL BE IN HIS COMPANY AND HIS PDP ALLIES? To which he had no reply/answer. I left the station for Udi police station. I got to Udi Police station by 12.10pm and yet the presidential materials had not arrived. Very large crowd had gathered by the General Hospital gate near the police station and were refused entry by combined team of army and policemen.
5. I was stopped but I insisted that as a candidate I must get to the police station to know why election materials have not been distributed. I got to the police station and noticed that the front and sides of the police station were filled with cars and a serving commission Chijoke Agu was inside the police station where the materials were kept as an agent of P.D.P. Nick Ozonsi the P.D.P. Udi local Government Chairman was there with some young men wearing INEC observer tag on them. I identified some of them who were P.D.P. ward executives and motor park touts. Moses Jackson another P.D.P. agent was there, one Tahir from Abor a development centre Chairman of P.D.P. was there with all their boys. The whole police station inside and outside were filled by P.D.P. agents who were freely mixing with policemen and army men. Most laughable was the sharing of rice from coolers by Nick Ozonsi to them to eat.
6. At this point I told my agent that on no Intimidation or fear will he leave the car park shed were he was until distribution of the materials. That he must keep close watch and listen to know when materials will be distributed. I left for Oji River police Station. I got to Oji River Police Station around 2pm and the situation was the same. No presidential materials. The materials of the Senate and House of Representatives were already in the custody of the police.

Uche Anya the A.N.P.P. candidate informed me that he was waiting for the distribution of the election materials. He further informed me that Bethel Onyenye (Onowu) a serving commission and P.D.P. agent was in the area where election materials were kept and blocking the entrance. I asked him to follow me so that we can get to Onyenye. I asked Onyenye if he was the Chief Security Officer of the election materials. I asked him why he as a serving commissioner should be an agent and be blocking the election material area. He replied that, that was his duty. I insisted that he must leave the area and also the police station. An argument ensued. It went on until an army major rudely walked up to Uche and myself and asked us to leave the place. I refused to leave insisting that Bethel Onyenye, K.G.B. – the House of Representatives candidate of P.D.P. and the State Assembly member of P.D.P. leave the election material area for only agent and observers will I leave. Uche asked me that we should leave since the army major has been hostile since morning and harassing opponents of P.D.P. We left to my car as Uche had assured me he will be there to monitor the distribution of the election material and I left the police station and immediately my phone rang that Chijoke Agu, Nick Ozonsi, Mr. Tahir, and their agents in connivance with SP Abang the D.P.O. and the Electoral officer Ngozi Obinwa were handing result sheets and other election materials of so many towns in Udi to them and they were packing them into their cars and buses and heading out of the police station. At the point of this phone call they were fighting to retrieve the materials of my ward Eke which Mr. Ifudu P.D.P. had hijacked and put in his car – (ballot Papers & boxes), Result sheets in another car. The fight was going on until Rev. Egwuonwu Oscar the D.P.P. governorship candidate passing by the station to go and vote in his home town intervened with one army man who insisted that he was tired of the fraud going on in Udi Local Government Police station and demanded that the driver of the car must open his booth. Surprisingly INEC did not hire one single car for the distribution of the election materials but left it in the hands of P.D.P. Local Government Chairmen and executives. Rev. Egwuonwu insisted that Ifudu, Tahir must return the materials in their possession and called the policemen on duty to enter another car and escort the election materials safely to Eke. My agents, Ifudu and his cohorts followed behind. I met them at Abia town.

7. We got to Eke and the Supervisor emptied the booth. All materials were brought out in the open and only Nine Originals and Nine duplicates each of the Presidential and Senate were available and none for House of Representative. Five rolls of 200 pieces each of ballot papers, no ink pad, no pen, no voters register. It was getting very late, I sent for biros to be brought from them and ink pads. He distributed the materials to the nine (9) polling booths and the result sheets for Senate and President were complete. By 9.00pm and no sign of the supervisor officer we moved round the nine polling booths and all the polling clerks gathered at the Eke Distribution Centre to write their results but Mike Oguama, Vincent Ebue, Uche Alor, Mr. Okey Ndolo and their cohorts refused the writing of any result unless we were prepared to write high numbers for Yar’Adua, Ozomgbachi- P.D.P. House of Representative but they will concede Senate to me as a daughter of the soil.

I refused and insisted that votes cast be counted. I could not vote, and my people could not vote, because the polling clerk for my booth who worked on the 14th April did not report for duty and no replacement to ensure that I should be stopped at all cost. These P.D.P. men had invaded my town with three sets of Hilux police van filled with police men and led by Hycenth Oti from my ward to carry away the materials but were blocked by the youths of my town, myself and my police security. Finally, the last Hilux van with 04 written on the body led by Supol Hillary and Abbe of the 3 Mobile Squadron arrived my ward- the only ward in Enugu West that Result sheet came asking what problems we had as the D.P.O. Udi-SP Abang requested them to proceed to Eke because that there was problem there. I told them that since voting ended around 9pm that polling clerks have refused to count the votes and record it inside the result sheets. The reasons is obvious the voters by their votes had rejected those who think they can force their way to rule again and they cannot accept it. I went with Supol Abbe and demanded for the Result sheets only to find out that one Ejike Chigbo a polling clerk had given away the whole original and duplicate result sheets of his booth. The remaining (7) seven polling clerks had given away (7) seven copies each of their originals and duplicates and the remaining two copies each they refused to record the result.

Supol Abbe now asked them where the original and duplicate result sheets handed over to them were and they claimed that Uche Alor and his collaborators collected it from them. This Uche Alor and his collaborators are P.D.P. The presiding officer and supervisor were no where to be found and when they finally surfaced they had no explanation to give for the missing result sheets and their own whereabouts. Uche Alor was no where to be seen with Vin Ebue & others. Supol Abbe now asked them to pack all their material’s to the police station for their actions were criminal. They were all taken to the police station where the D.P.O. SP Abang refused to interrogate them or detain them nor investigate them. He asked them to return to INEC office Udi. I still went before Electoral officer Udi to report but she was less concerned. I reported this matter to REC Enugu State. The Hilux 04 was one of the police vans that helped Joe Anieze the Local govt development center carter away all election materials of Affa, Akpakwume Nze. Ukana and others to his house and to Ikedinkpa, health centre for rigging and multiple thumb printing.

8. IN UDI LOCAL GOVERNMENT AREA Twenty (20) wards, there was nothing like elections their whole materials never got to their polling booths. Voters came out as early as 7.00am to vote but till 7.pm they could not vote, the reason being that in all the twenty wards except Eke there were no result sheets -original or duplicate, no ballot papers, no presiding officer. Some were harassed by thugs led by policemen shooting in the air and intimidating them. Some angry voters burnt INEC’s ballot boxes and papers since no result sheets accompanied them. Others sent INEC officials and their incomplete materials back as they INEC officials did not arrive any ward in the whole of ENUGU WEST before 4.45pm. Some of the INEC adhoc staff posted to different ward were dropped at the police stations and thugs of the town carried the Elections materials to the various homes of their masters. No voting or elections took place in Udi Local Government Area and its twenty wards.
9. IN EZEAGU LOCAL GOVERNMENT AREA: As soon as I left the police station any agent not from P.D.P. was beaten up. From the police station the whole materials were taken to IGBUDU LODGE Local Government Office and Ozomgbachi and the House of Representative candidates of P.D.P. and Tico, House of Assembly candidate and their agents loaded the materials Into their cars and took them to their various homes and homes of their cohorts. The voters in the whole twenty (20) wards of Ezeagu came out to cast their votes as early as 7.am and till 7.pm no election materials or INEC officials came to their wards or various polling booths. They were all obstructed and disenfranchised from casting their votes.
10. IN OJI-RIVER LOCAL GOVERNMENT AREA: The whole materials were carried away from the police station by Engr. Bethel Onyenye and one Manfred the Local Government chairman and taken into the Local government Secretariat in OJi-River. The gate of the local govt. secretariat was locked and no one was allowed to enter. No materials got out of the local government except for five wards Oji Urban I, Oji Urban III Awlaw, Inyi III and Inyi I, and none of the materials got there before 5.30pm. When they arrived all the Result sheets both Originals and duplicates were no where to be seen. And by the time the materials were displayed it was already very late. Most voters refused to stay late for their safety and saw no sense in voting when no result will be entered because of lack of result sheets. They insisted that they will only vote if all materials and voters register and result sheet were brought out. The presiding officers had none and the voters and agents left. By 8.30pm it became a field day for P.D.P. agents to do every malpractice they can fathom. There was no elections or any form of respect to the rules of the Electoral Act. No elections took place in Oji-River.
11. IN AWGU LOCAL GOVERNMENT AREA: The materials for the elections were handed over to the local government chairman of Awgu who is P.D.P. No one single Result sheets of Awgu Local Government Area and its eleven wards ever got to the wards/polling booths. Election materials did not leave the Awgu Police station till very late. So many agents were beaten up in Awgu. Their motorcycles were damaged.

IN MGBOWO, the ballot boxes and one roll of ballot papers got there without any single result sheet and they voters refused to vote. By 5.30pm – 6.30pm there was no presiding officer only supervisor and polling clerks. They refused to vote because the same method played itself out in the April 14 elections where no result sheet came to their various wards/polling booths and votes cast were written on a sheet of paper only to hear outrageous figures on the radio as votes scored. There were no elections whatsoever in Awgu Local Government and all its wards where the Ezra development council chairman carried the who Anike materials away and the issue of no Result sheet was the common occurrence in Enugu West as a whole and beyond.

12. IN ANINRI LOCAL GOVERNMENT AREA: The smallest of all the zone with ten (10) wards had it the roughest. Our agents were beaten by police and army men. In full view of everybody waiting for the distribution of material the whole result sheets disappeared. When the materials started leaving and got to Okpanku some voters blocked the bus only to be scarred away by policemen and thugs following IKE EKWEREMADUAND ABEL CHUKWU. In Ndeaboh only ballot boxes, few voters cards were sent there no result sheets. The material for Ndeaboh got there by 6.pm while Odume and Nenwe’s materials were seized by ABEL CHUKWU. By the time it got to Odume which is so far inside it was very late and most voters had gone home. They could not stay because the terrain is lonely, no light and the thugs and policemen of Abel Chukwu were intimidating and harassing them.

There was no election material that got there before 5pm and lack of Result sheets worsened the situation and without voters register what can anyone do. The voters were disenfranchised.

The ballot boxes/bags that came had no serial numbers, Voters registers were absent to show who was the real owner of a voters card and who was eligible to vote and who did cast his or her votes. Distribution of materials started very late that most voters did not expect any elections anymore; yet no INEC officials nor materials got to them after this long wait – dashing their hopes and zeal to cast their votes and elect a candidate of their choice.

13. WHEREFORE your petitioner prays that it may be determined that the said Ike Ekweremadu was not duly elected or returned and that his election was void. That a fresh election be conducted.

The salient aspects of the Appellant’s case as Petitioner in the Tribunal below were that elections did not hold in any of the five local Government Areas which constitute her Constituency – the Enugu West Senatorial Zone/Constituency and therefore no result emanated from any of the five local Government Areas within the Enugu West Senatorial Constituency of Udi local government Area (20 wards), Eziagu local Government Area (20 Wards), Oji-River local Government Area (20 Wards) Awgu local Government Area (11 Wards) and Aninri local Government Area, (10 Wards). The Appellant as Petitioner also alleged that there was total non compliance with the provisions of the Electoral Act 2006 particularly sections 28, 29, 44, 47, 48, 50, 53, 54, 59, 62, 64. It was further alleged by the Appellant that there were massive irregularities including carting away of Electoral materials, absence of electoral officers, thuggery, falsifications and the non availability of voters register. Inspite of the fact that there was no election because the election was marred in the manner stated in the petition and there was no published result of the election as required by sections 72, 74, 75 and 76 of the Electoral Act 2006, the Independent National Electoral Commission (INEC) went ahead to declare the 1st Respondent winner of the Election, Appellant further submitted. Appellant called ten witnesses to substantiate the claim that there was no election while the Respondents called fourteen witnesses in rebuttal of the Appellant’s claim that there was no election. Written addresses were submitted by all the parties’ counsel. The tribunal at page 1030 of the Record of Appeal formulated the following issues for the determination of the petition –

1. Did the Petitioner prove the allegations of corrupt practices in her petition?
2. Did the Petitioner rebut the presumption that the return of the 1st Respondent was proper?
3. Did the Petitioner discharge the onus of proof placed upon her by the law that there was substantial non compliance with the provisions of the Electoral Act 2006 by the Respondents that can warrant us to nullify the election?

The tribunal resolving all the issues in favour of the Respondents held as follows at page 1038 (volume 3) of the Records-

“On the whole it is our holding that upon considering the evidence of the Petitioner vis-a-vis those of the Respondents the evidence of the Respondents is more credible and we believe it that election took place and there was substantial compliance with the provisions of the Electoral Act 2006. We also find that the Petitioner has failed to discharge the burden of proof placed upon her as regards corrupt practices and did not dislodge the presumption that the 1st Respondent was duly returned as the winner of the Enugu West Senatorial elections held on the 21st April 2007. In the circumstances it is our judgment that this Petition lacks merit and is hereby dismissed.”

Dissatisfied with this judgment of the tribunal, the Petitioner, hereinafter referred to as the Appellant filed a Notice of Appeal dated the 6th December 2007 and filed on the 7th December 2007.

The Notice of Appeal which consists of six grounds of Appeal with accompanying particulars is at pages 1040 – 1046 of Vol. III of the Record of Appeal. The said Notice of Appeal is reproduced in its entirety below –

IN THE COURT OF APPEAL

ENUGU DIVISION

Appeal: CA/E/2007

Petition No. NAGL/EPT/EN/NA/34/07

Between

Uzoamaka Lawrencia Onyeama Petitioner/Appellant

And

Ike Ekweremade & ors Respondents/Respondents

NOTICE OF APPEAL

Take Notice that the petitioner being dissatisfied with the decision of the National Assembly Election Tribunal/Governorship and Legislative Houses Elections Tribunal Enugu State, contained in the judgment of the said tribunal dated the 20th day of November, 2007, in petition No. NAGL/EPT/EN/NA/34/07 doth hereby appeal to the court of appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.

And the appellant further states that the names and addresses of the persons directly affected by the appeal are t hose set out in paragraph 5.

2. Part of decision of the lower court complained of:-

The whole decision

3. Grounds of Appeal:
4. The court below erred in law in holding that “the petitioner did not dislodge the presumption that the 1st respondent was duly returned as the winner of the Enugu West Senatorial elections held on 21st April, 2007.

” when there was no evidence that the 1st respondent was duly returned as the winner of the said election as stipulated by law.

(a) S. 76(1) of the Electoral Act stipulated that at the end of the election a sealed certificate of return in a prescribed form shall be issued within 7 days to the winner. No such certificates was tendered in evidence.

(b) Winning an election is a fact to be proved by evidence not by presumption.

(c) The petitioner brought out in evidence through the witnesses of the respondents that the senatorial district returning officer for the said election was Mr. AA Akinyemi.

(d) Neither INEC nor Mr. Ekweremadu front-loaded the statement on oath of the said senatorial district returning officer nor was his name listed as a witness for the respondents.

(e) The tribunal’s presumption that Mr. Ekweremadu was returned as the winner was based on speculation as the only acceptable evidence of the return where it is challenged as in this case is the certificate issued under the said section 76(1) of the Electoral Act.

(f) Moreover none of the forms prescribed in s.74 of the Electoral Act which must be completed if there was an election was tendered in evidence by INEC or the 1st respondent.

2. The tribunal erred in law in reversing itself in the same proceeding when it has no power to do so.

Particulars of error

(a) When the respondents filed an interlocutory application to strike out the petition on the ground that the petitioner failed to supply the scores of the candidates in the petition, the petitioner exhibited the document which INEC issued to her by 9.30 pm on the 21st May, 2007, a date preceding her last day for filing her petition, as t he final result sheet in their possession, which contained scores of parties and not candidates as prescribed by law and which bore the date 21st April 2007, that is to say, the election day.

(b) The tribunal held that the said document was not the final result sheet prescribed by law and dismissed the motion of the 1st respondent on the 9th of August, 2007.

(c) INEC did not deny issuing the said document dated 21st April, 2007, to the petitioner by 9.30 pm as alleged.

(d) INEC did not publish the result on its website or notice board – as prescribed by S.72 of the Electoral Act on the election day or days thereafter showing that there was no result to publish.

(e) The evidence of INEC witnesses at the hearing shows that the said date 21st April, 2007, on the said document is false as on their evidence the final collation did not take place on the 21st April, 2007.

(f) The said decision is conclusive of the fact that INEC had no final result sheet as at the date preceding the filing of the petition which was one month after the senatorial election.

(g) That decision threw the onus of proof that there was an election on the respondents and the tribunal’s presumption that Mr. Ekweremadu was returned at the election of 21st April 2007, was a complete summersault which is not allowed in law and which rendered the presumption of the election tribunal perverse.

3 The tribunal exercised its discretion in judicially and injudiciously when it prevented the petitioner from giving evidence on a mere technicality and erred in law in using its injudicious discretion in dismissing the petitioner’s petition.

Particulars of error

(a) It was an error in law and contrary to judicial neutrality in the administration of justice when the tribunal refused an extension of time to the petitioner to file her statement on oath when she satisfactorily explained her default in filing the same with her petition, while extending the time to INEC to file its reply to the petition.

(b) It was erroneous in law for the same tribunal to use the petitioner’s inability to give oral evidence caused by the tribunal to dismiss her petition relying on a Supreme Court decision which was not apposite.

(c) The inability of the petitioner to give viva voce evidence did not whittle down the strength of her case which was well presented by the ten witnesses the tribunal allowed her to call.

4. The tribunal erred in law in dismissing the petition based on a slip-shod evaluation of the evidence of the witnesses of the petitioner.

(a) The tribunal misled itself when it held that the witnesses of the respondents were voters whereas the witnesses for the petitioner were her agents when in fact the witnesses for the petitioner were also voters.

(b) Every witness for the petitioner stated he/she was a voter who did not vote because no voting took place.

(c) The respondents’ witnesses claimed that they voted where the petitioner’s witnesses could not vote though they came to vote.

(d) The only person to resolve that conflict is the senatorial district returning officer who would testify as to the receipt of the various results from the local government returning officers.

(e) The said officer did not testify. His statement on oath was not front-loaded. His name did not even appear in the list of witnesses for the respondents.

(f) His testimony was the only evidence to tilt the balance of the scale and the failure of INEC or Mr. Ekweremadu to produce this evidence raises the serious presumption that his evidence would not support the pleading of the respondents that there was an election.

(g) Not even one presiding officer gave evidence of any voting in his station even though they were all sued as respondents.

(h) Failure of a defendant to give evidence is an admission of the allegations against him.

5. By not evaluating the evidence of the witnesses and ascribing probative values to them the tribunal erred in law in holding that “the evidence of the respondents is more credible and we believe that elections took place”

Particulars of error

(a) The tribunal failed to put the conflicting evidence tendered by the petitioner and by the respondents on the imaginary scale of justice as required by law.

6. The tribunal erred in law by its erroneous interpretation of Order 33 Rules 20 (1) and (2) of the Federal High Court Rules which led it to a perverse judgment.

Particulars of error

(a) It is a universal canon of interpretation that words used in a statute are given their ordinary meanings.

(b) Order 33 Rule 20(1) and (2) of the Federal high Court Rules stipulate that if a defendant fails to comply with the order of the court to supply a document it is ordered to supply to a plaintiff two consequences follow, namely, his defence will be struck out and he will be placed in the same position as if he never defended and he shall in addition be liable to committal for contempt.

(c) The tribunal held “that the present position of the law is that where a party alleges a disobedience of an order to inspect or produce documents under S. 159 of the Electoral Act.

2006, the only option to him is to institute contempt proceedings against the alleged contemnors. This section prescribed no sanction.

(d) On the other hand paragraph 50 of the First Schedule to the Electoral Act 2006 stipulated that the practice and procedure of the tribunal in relation to an election petition shall be as nearly as possible similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the civil procedure rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act.

(e) The Supreme Court did not in its judgment in Ayodu v Nnamani amend Order 33 Rule 20(1) and (2) and was not called upon to do so.

(f) The interpretation which the tribunal said the Supreme Court placed on Order 33 Rules 20(1) and (2) if indeed it was correct was per incuriam and cannot amend a statutory law.

The opinion of the Supreme Court was however in respect of S.159 of the Electoral Act which stipulated no sanction.

4. Relief sought from the court of appeal:

To set aside the decision of the court below and substitute therefore a judgment nullifying the senatorial election in the Enugu West Senatorial Zone purportedly held on the 21st of April, 2007 and order an election.

(b) R.W. 3 Augustine Ochi who claimed to be a ward collation agent of Mr. Ekweremadu in Affa/Ohu/Ikono ward testified that the boxes into which votes were cast in sixteen polling booths in the ward were brought to the ward collation centre where they were counted – – which is not possible under S.64 of the Electoral Act.

(c) The tribunal in reproducing the evidence of Charles Ikechukwu PW4stopped half way by saying the witness said he went into a bush near Ekwensu primary Ndiuno/Imeama without completing the statement why he went into the bush and disabled itself from making a finding whether this witness saw what he claimed to have seen, namely that in the said bush he saw persons thumb-imprinting documents and stuffing them into ballot boxes and those with them shooting into the air.

(d) In the same way the evidence of P.W.3 Marcellus Chinedu Onyema who said he chased persons carrying ballot boxes and election materials into the compound of Ogbuefi Ozomgbachi a PDP stalwart where they were assaulted was not considered, let alone evaluated by the tribunal.

(e) RW II Theresa Ilozue who said she was the electoral/returning officer for Aninri local government and RW12 Ngene Mathew Sunday Ogbonnaya who said he was the electoral/returning officer for Oji River local government testified that they distributed electoral materials in the morning and voting began and again distributed the material for the presidential election in the afternoon when other electoral/returning officers averred that materials for the three elections of house of representatives, senate and president were distributed simultaneously in the afternoon after the arrival of the materials for the presidential election in the afternoon of the election day.

(f) On the other hand RW13 Adeyolanu Samuel testified that he received sensitive materials for presidential and national assembly election from INEC headquarters Enugu State about 9 am of 21st April, 2007, election day and voting began 12 noon.

(g) INEC itself who has initial custody of electoral materials for the state stated that materials for the presidential election arrived Enugu airport in the afternoon of the election day and distribution began thereafter.

(h) The allegation that Ozomgbachi a PDP stalwart carried away the election materials and ballot boxes was not rebutted. If he carried away the ballot papers and boxes how can an election take place?

5. Persons directly affected by the appeal.

Name Address

Petitioner c/o A.N. Anyamene’s Chambers,

1, Marcus Garvey Street,

New Haven, Enugu.

1st Respondent Messrs Chris Agbanwa, Peter Eze & Anali Chude,

13 Iyienu Crescent;

Independence Layout,

Enugu

2nd – 92nd Respondents K.O.K. Agbowo, Esq.,

33, Chime Avenue,

New Haven,

Enugu

Dated the 6th day of December, 2007.

(A.N. Anyamene, SAN)

Petitioner/Appellant’s

1, Marcus Garvey Street,

New Haven,

Enugu

On the 21st May 2009 when this appeal came up before us for hearing, Peter Eze esq Counsel for the 1st Respondent, with him C.C. Aghanwa esq drew our attention to a Notice of preliminary objection dated the 27th February 2009 and filed same day arguments in respect of which are incorporated in paragraph 4.0 – 4.2 at page 6 of the 1st Respondent’s Brief of Argument dated the 29th January 2009 and filed same day. Counsel adopted and relied on the arguments in those paragraphs and urged this court to strike out grounds 2 and 6 of the Appellant’s Notice of Appeal. He equally urged the court to strike out paragraph 5.06 at pages 24 – 26 of the Appellant’s Brief of

Argument. In so requesting, Counsel relied on the 2nd list of the 1st Respondents additional authorities dated the 27th April 2009 and filed same day. For the avoidance of doubt the cases listed therein are as follows –

INIAMA V. AKPABIO (2008) 17 NWLR (PART 1116) 225 AT 303; UKPO V. IMOKE (2009) 1 NWLR (PART 1121) 90 at 143; DIDE V. SELEILETIMBI (2008) 15 NWLR (PART 1110) 221 at 234; INEC V. ACTION CONGRESS (2009) 2 NWLR (Pt.1126) 524 at 584.

Reacting to the preliminary objection the Appellant Barrister Uzoamaka Lawrencia Onyeama who appeared for herself submitted that the preliminary objection gave rise to the amended Reply Brief of the 6th March 2009 which supersedes Appellants Reply Brief filed on the 2nd February 2009.

The Preliminary objection having been argued Counsel adopted the respective briefs of argument of the parties. Barrister Uzoamaka Lawrancia Onyeama adopted and relied on her brief (Appellant’s brief) of argument dated the 21st January 2009 and filed on the 23rd January 2009 as well as the Appellant’s Amended Reply Brief of Argument dated the 6th March 2009 and deemed properly filed on the 27th April 2009.

She urged this Court to allow the appeal and nullify the purported election of the 21st of April 2007 to Enugu West Senatorial Zone and the return of Ike Ekweremadu and order a fresh election into the Enugu West Senatorial Zone. Counsel for the 1st Respondent Mr. Peter Eze adopted and relied on the said 1st Respondent’s Brief of Argument dated t he 29th January 2009 and filed same day. He drew the attention of this court to the 1st Respondent’s list of additional authorities dated the 27th February 2009 and urged this court of dismiss the appeal. On the said list of additional authorities are the following cases-

CHIME V. EZEA (2009) 2 NWLR (PART 1125) 263 at 344 and 371; CHIME V. ONYIA (2009) 2 NWLR (PART 1124) 1 at 70; AGBALLAH V. CHIME (2009) (part 1122) 373 at 443,447, 459 – 460. Mr. K. O. K. Agbowo Counsel for the 2nd – 92nd Respondents also adopted and relied on the Brief of Argument of the said Respondent s dated the 28th January 2009 and filed on the 29th January 2009 and urged this court to dismiss the appeal and affirm the judgment of the tribunal below.

The Preliminary objection was argued first and will be dealt with first. Moreover it should be dealt with first because if it is found to be meritorious in its entirety, it could determine the appeal without going into its merits.

At page 6 of the 1st Respondent’s Brief of Argument paragraphs 4.0 – 4.2 under the heading PRELIMINARY OBJECTION, it is stated thus, “The 1st Respondent will at the trial raise a preliminary objection to the Appellant’s Brief on the grounds stated hereunder:

(a) the 1st Respondent submits that the Appellant failed to formulate any issue in respect of Grounds 2 and 6 of the Notice of Appeal

(b) the 1st Respondent further submits that the issue for determination raised by the Appellant in paragraph 3.01 of her brief does not cover the arguments put forward in paragraph 5.06 of the Appellant’s Brief.

The 1st Respondent therefore urged the Tribunal to strike out paragraph 5.06 of the Appellant’s Brief.

In the Appellant’s amended Reply brief dated the 3rd March 2009 and filed on the 6th March 2009 but deemed filed on the 27th April 2009, the Appellant described as totally misplaced the 1st Respondent’s submission that the Appellant did not formulate any issue with respect to grounds 2 and 6 of the Notice of Appeal and that the purpose of issues framed is to address the question for determination in an appeal. Appellant went on to say that once issues are framed they supersede the grounds of appeal which grounds are therefore subsumed in the arguments in respect of the Issue. Reliance was placed on ADAMU & ANOR V. IKHARO & ANOR (1988) 4 NWLR (PART 89) 474 at 484 C – D; BANKOLE V. PELU (1991) 8 NWLR (PART211) 532 at 537 G – H; OGBUINYINYA v. OKUDO (No.2) (1990) 4 NWLR (PART 146) 551. Counsel submitted that the Appellant’s issues encompassing the grounds of appeal were argued in paragraphs 4.01 – 4.17 of the Appellant’s Brief and that paragraph 5.6 of the Brief is only part of the conclusions included in the Brief in order to satisfy Practice Direction No.2 of 2007 paragraph 6 (b).

Grounds 2 and 6 of the Notice of Appeal have already been reproduced in this write up and need no further reproduction but references to those grounds. It is trite that issues are formulated or distilled out of a ground or grounds of appeal. It follows therefore that where grounds in a Notice of Appeal cannot be linked with an issue, such grounds are liable to be struck out. Grounds 2 and 6 of the Notice of Appeal fall into this category and are accordingly struck out. Another aspect of the preliminary objection raised by the 1st Respondent at page 6 of the 1st Respondent’s Brief of Argument is that the issue for determination raised by the Appellant in paragraph 3.01 of her Brief of Argument does not cover the arguments put forward in paragraph 5.06 of the Appellant’s Brief of Argument and so the said paragraph 5.06 of the Appellant’s Brief of Argument should also be struck out. Paragraph 3.01 of the Appellant’s Brief of Argument is at page 8 of the said Brief and reads as follows, “Whether the Tribunal below was correct when it held that election took place at Enugu West Senatorial Zone/Constituency on the 21st day of April 2007 in substantial compliance with the provisions of the Electoral Act 2006 and that the Appellant did not dislodge the presumption that the 1st Respondent was duly returned as the winner of the election”.

Paragraph 5.06 of the Appellant’s Brief of Argument which is to be found at pages 24 – 26 of the said Brief reads as follows –

5.06 The Tribunal below surprisingly, took a patronizing posture towards the Respondents who failed to obey the Tribunal’s order for inspection. The Tribunal declined to apply Order 33 Rule 20 (1) & (2) of the Federal High Court rules, which make very clear provisions as to the consequences of refusal to allow inspection. We expatiate:

(a) It is a universal canon of interpretation that words used in a statute are given their ordinary meanings, and applied dispassionately.

(b) Order 33 Rule 20 (1) & (2) of the Federal High Court Rules stipulates that if a Respondent fails to comply with the order of the Court to supply a document it is ordered to supply to the Petitioner two consequences follow, namely, his defence will be struck out and he will be placed in the same position as if he never defended and he shall in addition be liable to committal for contempt.

(c) The Tribunal held “that the present position of the law is that where a party alleges a disobedience of an order to inspect or produce documents under section 159 of the Electoral Act, 2006, the only option to him is to institute contempt proceedings against the alleged contemnors. This section prescribed no sanction; rather the sanction is prescribed in Order 33 Rule 20 (1) & (2) of the Federal High Court Rules, in view of paragraph 50 of the first schedule to the Electoral Act, 2006. The Tribunal below did not show any other rule or law repealing Order 33 Rule 20 (1) & (2) of the Federal High Court Rules to create “a new present position of the law.”

(d) On the other hand paragraph 50 of the First Schedule to the Electoral Act, 2006 stipulates that the practice and procedure of the Tribunal in relation to an election petition shall be as nearly as possibly similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the civil procedure rules shall apply having regard to the provisions of this Act.

(e) The Supreme Court did not in its judgment in AYOGU VS NNAMANI declare Order 33 Rule 20 (1) & (2) void, and was not called upon to do so. In any case, the Supreme Court was not invited to consider the provisions of section 287 (3) of the 1999 Constitution which makes it mandatory for the decisions of the Tribunal below to be enforced by all authorities and persons and by all Courts of law. It is startling that the Tribunal below allowed its decision to be ridiculed by the Respondents in the face of Order 33 Rule 20 (1) and (2) of the Federal High Court Rules which makes clear provisions for consequences of disobedience or non compliance. The Tribunal below also failed to take account of the current attitude of Courts to disobedience of Court Orders. There are circumstances when a person in disobedience of the Court Order will be denied the benefit of the exercise of discretion by the Court. A committal proceeding is not a pre – requisite. This case is a classical example of it. We refer to the Supreme Court decision in MOBIL OIL NIG. LTD. & ANOR. V. S. T. ASSAN 1995) 8 NWLR (PT. 412) 128. In this case, the Supreme Court emphasized that it is the plain and unqualified obligation of any person against or in respect of whom an Order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged or set aside on appeal. The Supreme Court emphasized that this extends even to cases where the person affected by the order believes it to be irregular or even void. (Record page 143 paragraph C et. Seq.)

(f) The interpretation which the Tribunal said the Supreme Court placed on Order 33 Rule 20 (1) & (2) is indeed a misconception because Order 33 Rule 20 (1) & (2) did not come up for consideration at all in BUHARI VS. OBASANJO. The opinion of the Supreme Court was however in respect of S. 159 of the Electoral Act, which stipulated no sanction. The Supreme Court in A.G. ANAMBRA STATE VS. A. G. FEDERATION & ORS. (2005) 9 NWLR (PT. 931) at 606 D – F, re – echoed the current attitude to be there is a plain and unqualified obligation on the part of every person against or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged. So long as the order exists it is the obligation of the Tribunal below, to see to it that it is obeyed. It is not the function of the Tribunal to wait for an order for committal. It is its duty to apply the clear provisions of Order 33 Rule 20 (1) & (2) to the person in disobedience.

Does the issue in paragraph 3.01 of the Appellant’s Brief cover the argument put forward in paragraph 5.06 of the same Brief now that the two have been reproduced and placed side by side? Appellant has submitted in the Appellant’s amended reply to the Respondents’ Brief that it is not correct to say that the said argument in paragraph 5.06 of the Appellant’s Brief is not covered by the issue in paragraph 3.01 of the Appellant’s Brief of Argument because the said issue in paragraph 3.01 of the Appellant’s Brief encompasses the grounds of appeal and that the said issue in paragraph 3.01 was argued in paragraphs 4.01 – 4.17 of the Appellant’s Brief of Argument. She went on to submit that paragraph 5.6 of the Appellant’s Brief is only part of the conclusions included in the brief in order to satisfy Practice Direction NO.2 of 6 (b) and it will not be right to use what is merely outside t he main argument on the issue to impugn the brief.

Without any iota of doubt the Issue in paragraph 3.01 of the Appellant’s Brief does not cover the argument put forward in paragraph 5.06 of same brief and the 1st Respondent is right that paragraph 5.06 should be struck out and it is accordingly struck out.

Irrespective of what has been struck out the Appeal still survives and will be dealt with on its merits.

I shall now proceed to deal with the appeal proper. Reference has already been made to the sale issue for determination formulated by the Appellant while dealing with the arguments on the preliminary objection and it is “whether the Tribunal was correct when it held that election took place at Enugu West Senatorial Zone/Constituency on the 21st day of April 2007 in substantial compliance with the provisions of the Electoral Act 2006 and that the Appellant did not dislodge the presumption that the 1st Respondent was duly returned as the winner of the election.”

The 1st Respondent at pages 6 and 7 of his Brief of Argument has distilled the following two issues for the determination of this court-

(1) Whether the Tribunal was right when it upheld the return of the 1st Respondent on the ground that the Appellant did not rebut the presumption that the return of the 1st Respondent was valid. The 2nd – 92nd Respondents at page 5 of their Brief of Argument have equally adopted the lone or sole issue for determination formulated by the Appellant in her Brief of argument.

(2) Whether the Lower Tribunal properly evaluated the evidence of the parties before arriving at its decision dismissing the Petition?(Grounds 3, 4 and 5)

I consider issue 2 formulated by the 1st Respondent as already subsumed in arguments in the sole issue for determination formulated by the Appellant and I shall rely on the said sole issue in the treatment and determination of this appeal.

Appellant submitted that the Tribunal was in error to have shifted the onus on the Petitioner/Appellant to establish the negative i.e. that there was no election, instead of placing it on the Respondents to establish the positive i.e. that there was an election and that it was by reason of this misplacement of onus of proof that the Tribunal below Failed to properly evaluate the evidence of the witnesses so as to ascribe proper probative value to them. Reliance was placed on the case of ADEGOTE V. ADIDI (1992) 5 NWLR (PART 242) 4.0 at paragraph B – C. The Appellant is clearly in error in her thinking that simply because she is asserting the negative the onus is on he who asserts the positive. It is trite that whether an assertion be negative or positive, the burden lies on he who asserts.

In AWUSE V. ODILI (2005) 16 NWLR (PART 952) 416 the Court of Appeal Port Harcourt Division held as follows,

“The burden is on him who asserts to adduce evidence in proof of that asserted.

In the instant case the Appellant as the Petitioner at the Tribunal had the onerous duty of proving his petition.”

The court in further emphasis of the heavy burden placed on a petitioner to prove his case said as follows-

“The law is trite that the consideration of the Respondent’s case did not arise until and unless the petitioner has made out a case. In other words a duty lies on the petitioner who alleges to succeed on the strength of his own case and not on the weakness of the defence.”

See also ABIBO V. TAMUNO (1999) 4 NWLR (PART 599) 334 at 339; BUHARI V. OBASANJO (2005) 2 NWLR (PART 910) at 4161 OGUNNIYI V. OGUNDIPE (1992) 9 NWLR (PART 263) 35. The Appellant admitted in her petition that there was at least some result upon which the 1st Respondent was declared the winner of the election. Her grouse is that such a produced result could not have been authentic for a whole range of reasons. There is a presumption of law that the results produced by INEC are authentic and genuine. The petitioner must make out a prima facie case to rebut the presumption of genuineness and authenticity capable of shifting the burden to the Respondent. See HASHIDU V. GOJE (2003) 15 NWLR (PART 843) 352 at 386- 387.

Section 137 (1) of the Evidence Act Laws of the Federation of Nigeria 1990 provides that, “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 produced on either side…” It is clear from this section that the burden of first proving that election did not hold and therefore the 1st Respondent was not duly returned as the winner of the election is on the Appellant.

The Respondents do not have to tender any evidence in rebuttal in so far as the burden on the shoulders of the Appellant to show that there was no election remains undischarged. The Appellant’s contention is that the elections were marred by total non compliance with the provisions of the Electoral Act 2006, massive irregularities, carting away of electoral materials, absence of electoral officials, thuggery, falsification, non availability of voter’s register etc.

The 1st Respondent and the 2nd – 92nd Respondents filed replies denying all the allegations in the petition enunciated above and contending that the elections had been conducted in substantial compliance with the Electoral Act 2006. The Appellant contended that the tribunal did not carry out a proper evaluation of the evidence of the witnesses before handing down a decision that there was an election and that the 1st Respondent won the election. The Supreme Court in MOGAJI V. ODOFIN (1978) 4 SC 91 at 94 – 95 held that a proper evaluation of evidence in a civil case must involve at least the following –

(a) Whether the evidence is admissible

(b) Whether it is relevant

(c) Whether it is credible

(d) Whether it is conclusive

(e) Whether it is more probable than that given by the other party.

How well did the Tribunal abide by these criteria in carrying out the evaluation exercise of the evidence of the witnesses on both sides?

It is instructive to reproduce the Tribunals finding at pages 1031 – 1032 of the Record of Proceedings. The Tribunal noted that, “while all the Petitioner’s witnesses alleged electoral malpractices where they acted as agents for the Petitioner, all the witnesses for the 1st Respondent stated that they voted and there was (SIC) no electoral malpractices except at Udi and Awgu Local Government Areas. No documents were tendered by either side to convince us that there was (sic) electoral malpractices or that elections held without hitches. So the allegations of corrupt practices is what is before us to resolve this issue. Section 145 (1) (b) of the Electoral Act provides for the invalidation of elections on grounds of corrupt practices. But the said Electoral Act also provided for punishment for corrupt practices in sections 124 and 134. Corrupt practices therefore is (sic) a criminal offence and for the Petitioner to succeed in a petition based on corrupt practices she must prove the allegation beyond reasonable doubt. Not only that but the Petitioner must also prove that the 1st Respondent personally committed or aided, abetted or procured the commission of corrupt practices and that the corrupt practices after the outcome of the election. See BONI HARUNA& ORS V. ADAMU MODIBBO & ANOR (2004) 16 NWLR (PART 900) 487 at 542; YUSUF V. OBASANJO (2005) 18 NWLR (PART956) 96 at 186.”

The Appellant had alleged in her petition that the elections were marred by total non compliance with the provisions of the electoral Act 2006 which she spelt out as massive irregularities, carting away of electoral materials, thuggery, falsification. All these are acts of a criminal nature and even in a civil action have to be proved not on a balance of probability but beyond reasonable doubt by the Petitioner/Appellant and her witnesses. This was not done.

As the Tribunal rightly observed, the Appellant failed, omitted or neglected to include her statement on oath to her petition thus denying herself the golden opportunity to testify before the Tribunal.

As the Tribunal rightly noted also there is nothing linking the 1st Respondent with any of these corrupt practices or irregularities.

In AYOGU V. NNAMANI (2006) 8 NWLR (PART 981) 160 at 187 it was held that an Appellant who asserted before the lower tribunal that there were no voting materials, no INEC officials to supervise voting, and that no voting took place in at least 13 Local Government Areas out of 17 Local Government Areas in Enugu State must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the respective local government areas to show that he could not vote on 19/4/2003 election at the said polling booth as there were no voting materials or INEC officials to preside over the voting. He must also establish by credible evidence how the lack of voting in these Local Government Areas affected the final result of the election to his disadvantage.” In the present appeal the Appellant has not succeeded in discharging that burden and so the appeal cannot succeed. It fails and is accordingly dismissed and the judgment of the National Assembly/Governorship and Legislative Election Petition Tribunal holden at Enugu delivered on the 20th November 2007 in Petition No. NAGL/EPT/EN/NA/34/2007 is hereby affirmed.

There shall be N30,000 in favour of the 1st Respondent against the Appellant.

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Other Citations: (2009)LCN/3348(CA)