Barr. Zimako O. Zimako V. Chidi E. Nwogu & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A.

This is an appeal against the judgment of the National Assembly Governorship and Legislative Houses election Tribunal Imo State delivered on 28/7/03 in Election Petition No. MAET/IMS/2/2003. The lower tribunal found for the respondents in this case but being dissatisfied the appellant appealed against the decision filing 11 grounds of appeal in the process.

The grounds are as per pages 269 – 232 of the record. He then formulated four issues for determination to wit:

(i) Whether on the state of the pleadings and evidence led at the trial the non-compliance pleaded in paragraphs 6, 7 and 8 of the petition were not proved? (Grounds 1, 2, 3 & 4).

(ii) Whether or not the issue of joinder of necessary parties was still open for re-determination by the tribunal after their decision of 26/6/2003 on the same issue in the same petition and in nay case whether sufficient necessary parties were not joined in the petition to sustain it? Ground 5.

(iii) Whether or not section 149(d) of the Evidence Act was rightly invoked against the appellant on the failure of the 2nd to 121st respondents to produce the statements of result sheets at the trial? (Ground 8)

(iv) Whether or not the petition ought to succeed? (Grounds 6, 7, 9 and 10)”

On his part the 1st respondent formulated 3 issues for determination to wit:

“1. Whether the election petition conformed with the provisions of section 132(2) (sic) 133(2) of the Electoral Act 2002 and whether that issue cannot be raised at any time.

2.Who has the burden of proof of majority of lawful votes and whether the appellant discharged the onus placed on hint.

3. Whether the Tribunal was right in holding that appellant had not proved sufficient non-compliance with the provisions of the Electoral Act, 2002 to vitiate the election.”

The appellant’s counsel however filed a reply brief on 28/10/03. When the appeal came up for hearing on 30/10/03, he adopted both briefs, He then referred to Order 3 rule 2(1) of the Federal High Court rules, which he noted was similar, but observed that that of the Federal High Court was limited to irregularities only. Order 49(2) he said was a bit different. He submitted that once nullity was in issue, jurisdiction would arise and the restraint in Order 49 he added was targeted at the Tribunal with the use of the words “shall not be allowed”. That paragraph he went on to say, enjoined a Tribunal never to entertain an issue of jurisdiction at the preliminary stages after some steps had already been taken. Counsel submitted that the Supreme Court had defined active step in the case of Otivo v. Obor (1974) 2 SC page 23 at page 31. Having joined issues in this case he said, the point could only be taken at the hearing. The learned SAN also referred to Katto v. C.B.N (1991) 9 N.W.L.R. (Pt.214) 126 at 148. He concluded his opening argument by urging this court to allow the appeal in case his introductory views are overruled. He adopted his two briefs.

Chief Mogboh (SAN) for the 1st respondent in reply said the 1st respondent’s brief was filed on 2/10/03 and this he adopted in its entirety. He pointed out that the appellant had abandoned ground 2 of the appeal and that point was conceded in the appellant’s brief per paragraphs 4 & 5 of same. He urged the court to strike out the ground and also strike out the argument relating to issue No.3.02 pages 9 – 11 of appellant’s brief as they do not derive from any ground of appeal. This case he said is different from the case of Obasanjo cited.

On paragraph 49(2) counsel was of the view that what the 1st respondent did was correct and referred to the reply of the respondent to the petition pages 26 – 27  where an indication was given that the 1st respondent would raise the objection and that did not amount to taking a step. The petitioner he went on, was therefore never left in any doubt as to the steps the 1st respondent intended to take. The important thing he maintained, was to raise the point within a reasonable time. He cited Ikeakori’s case that is case No. 5 on his list of authorities. He referred to paragraph 49(1) of the Act and urged the court to hold that the objection was properly raised.

Chief Mogboh submitted that by section 133(2) of the Electoral Act only persons against whose conduct the petitioner complained should be joined. In this case he said, the appellant made specific complaints against certain officers but they were never joined. The offending paragraphs were therefore struck out. He urged the court to dismiss the appeal.

Chief Ahamba in a swift reaction pointed out that the words used in paragraph 1 of the reply to the petition were preliminary points of law instead of the words setting down for hearing. This he said was fatal.

Having considered the circumstances of this case and the fact that most of the issues now touched upon have been properly canvassed in the briefs filed, I will proceed to take the argument proper and give a ruling on the points raised at the appropriate stage.

Chief Ahamba continued his submission and argued issue 1 under two subheads, that is, failure to subscribe to oath and other substantial non-compliance. On failure to subscribe to oath he relied on section 18 of the Electoral Act. On this he submitted that the Presiding Officers and Returning Officers who conducted the election never subscribed to an oath as prescribed in section 18 of the Act and that fact was pleaded in paragraph 6 of the petition which fact was never denied by 2nd – 121st respondents and the 1st respondent never led evidence to rebut it but posited that failure to comply with section 18 did not affect the conduct of the election and could not effect the validity of the election. The Tribunal he said also confined itself to the evidence of Petitioner’s witnesses 1 – 6 who were among the defaulting officials. He believed that the first question to answer was whether that section enacted a duty, which could validly be waived, and if the waiver affected the conduct of the election.

The learned SAN was of the view that when a statute enacts a public duty, which confers a privilege on a citizen, the citizen could lawfully demand that it be complied with and that was what the appellant did. On whether the duty imposed by the Act is a private one that can be waived, the SAN was of contrary view in that the intendment and the spirit of the statute taken together are: (a) To offer equal and level play ground to all candidates

(b) To ensure that those entrusted with such duty did not corrupt public morality and public policy, and

(c) To ensure that the election results truly reflect the political will of the voters freely and fairly expressed.

The learned counsel added that the position of such officials was comparable to those of judicial and quasi-judicial officers who have a duty to guarantee fair hearing. Accordingly he said, the principles laid down in decided cases in the Supreme Court would not allow a waiver and referred to Ariori v. Elemo (1983) 1 SC 13; Enigwe v. Akaigwe (1992) 2 N.W.L.R. (Pt 255) 505 at 525. And the same principle was followed in the case of Chief Hope Ozochima v. Chief Achike Udenwa & ors (unreported Judgment) dated 31/7/2003 in appeal No. CA/PH/EPT/163. The senior counsel could not understand why the Tribunal had to resort to Section 135(1) & (2) of the Act. He also referred to Woodword v. Sarsons & Cadlor (1874 – 75) 10 Q7 page 733.

Chief Ahamba was of the view that the evidence of PW1 – 6, which the Tribunal relied on, was not in line with what the Tribunal said. He then reproduced their evidence for ease of reference. He pointed out that ward collation of results was meant to be done at Ward collation centres and cited Igodo v. Owalo (1999) 5 N.W.L.R. (Pt 601) 70 at 77 B-D on the need to perform collation at the prescribed places.

Counsel thereafter went on to itemize what he regarded as irregularities as revealed by the evidence of Petitioners witnesses.With all the pieces of evidence set out, the learned SAN could not see how the Tribunal came to what he described as sweeping conclusion that the PW5 called by the petitioner testified that the non taking of oath did not affect their work.

The Senior Advocate then noted that no evidence was given by the Electoral Officer for Isu Local Government Area, that is, PW3. He did not file any reply and there was no evidence of polling booth collation to rebut the complaint in paragraph 6, 7 & 8 of the petition. He then reiterated what each PW said to show that there were widespread shortcomings in the conduct of the election and concluded that the sweeping conclusion of the Tribunal as he called it, was perverse and referred to Incar (Nig.) Plc. v. Bolex Enterprises Nig. (2000) 5 S.C. (Pt,11) 224 at 240. He was sure that the evidence of the PW5 supported the case of the appellant in relation to non-compliance pleaded in paragraph 6 – 8 of the petition.

The evidence of the PW5 in that regard he said was never contradicted and should have been accepted and acted upon by the Tribunal while referring to Ajero v. Ugorji (1999) 7 SC (Pt.1) 58 at 71, 73 & 76. He wondered how the answers of the petitioners’ witness under cross-examination should be the sacrosanct basis for belief by the Tribunal because such answers were in the self-interest of the PWS and done in their self-protection. That he said was contrary to the doctrine of nemo judex in Causa sua and referred to Section 149 of the Evidence Act. It was done to excuse their breach of fundamental constitutional duty.

Section 135 of the Act counsel further submitted was only to save an excusable conduct of Electoral Officer who had complied with Section 18 of the Act. He went on to say that section 135 of the Act was never designed as a device to excuse all defect. He referred to the marginal note to the section with the words, “certain defects not to invalidate the election.”

On effect of failure to subscribe to oath counsel referred to INEC v. PDP (1999) 11 N.W.L.R. (Pt…..) at 194G showing that a person becomes Governor only when he has subscribed to oaths of allegiance and office and that he said, was the best construction for the Oath Act Cap. 333 LFN 1990 Section 4(1). Counsel also referred to Sgt. Awuse v. Dr. Peter Odili an unreported case No. CA/PH/EPT/154/2003 in which this court held that interpreting enactments the natural and literal meaning should be applied. Counsel also referred to Section 15(9) of the 1999 Constitution 3rd schedule and it is mandatory. He referred in that connection to Sgt Awuse’s case in which the court pointed out that schedules tables and forms are useful in the interpretation of statutes.

It was therefore wrong for the Tribunal to find shelter in the self-serving evidence of the PWs 1 – 6 to waive their failure to comply with the condition precedent. A breach of such condition he pointed out goes to the root of invalidate an election. He relied on Sken Consults Nig. Ltd. v. Sekondey Ukey (1991) 1 SC 6 at 26; Madukolu v. Nkemdilim (1962) 1 A.N.L.R. 404 at 562. He also referred to Okafor v. Nwude (1999) 7 S.C. (Pt.1) 106 at 119 where the Supreme Court held that serious procedural irregularity would invalidate the proceedings such that it ought be set aside. That approach he argued was followed in City Engineers v. N.A.A. (1999) 6 S.C. (Pt.11) 41 at 51 – 53. Counsel also referred to Ifejue v. Mbadugha (1994) 5 SC 79 at 101 per Bello J.S.C. (as he then was) at page 89; Oviawe v. Integrated Rubber Products Nig. Ltd & Anor (1997) 2 N.W.L.R. (Pt…) 126 at 139; Page 99 Pukala Narayana v. Emperor (1939) P.C 47; National Bank of Nigeria Ltd v. Weide & Co (Nig.) Ltd (1996) 8 N.W.L.R. (Pt 465) 150 at 165; SPDC Nig. Ltd v. FBIR (1996) 8 NWLR (Pt 446) 266 at 258.

He was convinced that it is only when the Electoral Officers take such Statutory oaths that they can be held liable for any breach of their oath of office and concluded that it was absured to confer an overriding authority on Section 135 over and above Section 18 of the Electoral Act and paragraph 15(a) of the 3rd Schedule of the Constitution was absurd. He argued further that the Supreme Court has stressed the readiness with which the courts should always proceed to sanction breach of constitutional duties. He relied on Igbe v. The Governor of Bendel State 7 U 11 R. He argued that the decision in Onweje v. Otakpa (1999) 4 N.W.L.R. (Pt 600) 518 could not be relied on by 1st respondent. He then distinguished Otakpa v. Onweje above with this case.

Counsel next turned to subhead 21 and submitted that he was adopting his comments on the state of pleadings on both sides. He referred to Kyari v. Alkali (2001) 5 SC (Pt 11) 192 at 205. That a petitioner needs to lead credible evidence in support of his pleadings; Oyinloye v. Esinkin (1999) 6 N.W.L.R. (Pt 11) 54 at 61 – 62; where facts are admitted the petitioner needs slightest evidence in support of the admitted facts and relied on Akpan v. Umoh (1999) 7 SC (Pt 11) 13 at 25; Okherhe v. Nwanfero (1997) 7 N.W.L.R. (Pt 91) 226; Omoeregbe v. Lawani (1980) 3 – 4 SC 108 at 117; Ajero v. Ugorji (supra) and Oyinlo v. Esinkin (supra).

In his further submission counsel referred to Exhibit 2, a Press Release, and the evidence of PWs 7, 8, 9,  10, 11, 12, 13, 14, 15, 17, 18 and pointed out that :he statements of Results Forms EC8B(1) for 10 wards prepared in Isu Local Government Area were never challenged. Counsel referred to several exhibits tendered in the case and concluded that there were numerous facts of non-compliance shown. He also referred to the testimonies of the RWs (Respondents’ Witnesses) and described some of them as witnesses with personal interest to serve, e.g. RW4 on page 26 of this brief.

Counsel was of the view that in spite of all the facts in issue, the Tribunal merely grossed over the evidence led by the appellant.

He said the Tribunal misled itself when it held that there was no evidence on Section 56 and none was proved where as a breach of that section is a material non-compliance. He said the non-compliance affected at least 12,067 votes which if cancelled will affect the result as declared.He then urged this court to resolve the issue in favour of the appellant as the complaints set out went to the root of the entire election to vitiate it.

In his response to issue 1 Chief Mogboh SAN argued that where there are complaints against some officials they must be joined as respondents by virtue of Section 133(2) of the Act and that section he said did not give the petitioner a choice to join some and leave others because the section is mandatory. Counsel went on to say, that the importance of so joining such respondents was emphasized in the cases of Tarfida v. Suberrva (1999) 4 N.W.L.R. (Pt 597) 70; Maikori v. Lore (199(2) 3 N.W.L.R. (Pt 231) 525; NEC v. Izuogu (Pt 147) 746; Oroho v. Buraimoh (1997) 2 N.W.L.R (Pt 275) 270; Olawoyin v. Adeyemi (1990) 4 N.W.L.R. (Pt 146) 746; Samanto v. Aalyah (2000) 1 N.M.L.R. (Pt 640) 283.

Where parties are not joined that omission robs the Tribunal of jurisdiction for such officers are entitled to fair hearing. Counsel relied on Ikpati v. Iyoho (1999) 7 N.W.L.R. (Pt 609) 58. Issue 4 in the appellant’s brief he said pertains to joinder and it would be unfair to damnify the conduct of such official; without giving them opportunity to be heard. He cited Ikpati v. Iyoho supra. Jurisdiction he said could be raised at any time. He relied on Oshotobav v. Olujutan and Ors (2000) 5 N.W.L.R. (Pt 655) 139 at 172. He said the respondent raised the issue of jurisdiction timeously. He noted that the appellant made allegation against P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 who did not take oath of allegiance. The officers who did not so take the oath testified for themselves.

Counsel was of the view that certain statements were attributed to the witnesses who did not so testify. He in particular mentioned PW1 at page 47; PW2 at page 48; PW3 at page 50 and P’W4 at page 50. He further said the PW1 – 4 had testified that the non-taking of oath did not affects their performances electoral officers and that the election was free and fair. All Electoral and Presiding officers as well as returning officers ought to have been joined. He was convinced that the Tribunal never overruled itself. In this connection he said the Tribunal had in mind this court’s decision in Sgt. Awuse v. Dr. Peter Odili supra. He submitted further that without amending the pleadings all evidence elicited under cross-examination went to no issue. He said that was the ruling of the Tribunal.Counsel said Section 133(2) of the Act made it mandatory to join such people. Non-joinder of such officials was a breach of section 133(2) of the Act and robs the parties of the principle of audi alteram partem. Counsel relied for this on Tafidar’s case above.

On who is a necessary party the SAN relied on Doma & Ors. v. Adamu & Ors. (1999) 4 N.W.L.R. (Pt 598) 426 and Egolum v. Obasanjo (1999) 7 N.W.L.R (Pt 611) 397. The Tribunal went on to hold that all answers elicited on such, officers by the petitioner under cross-examination went to no issue for reasons of non-joinder and the failure to join such officers he argued, rendered the petition incurably defective. Since the substantial part of the petitioner’s evidence has been held to go to no issue the remainder could not sustain the action. The SAN then urged the court to dismiss the appeal. For this he relied on Arubu v. Aiyelere (1993) 2 N.W.L.R. (Pt.280) 160. The appellant he said, never appealed against the specific finding of the Tribunal that the Electoral Officers, Presiding Officers and Returning officers ought to have been joined.

He also urged the court to exercise its powers under Section l6 of the Court of Appeal Act and Order 3 rule 23 of the Court of Appeal Rules and to declare that the petition before the tribunal was incompetent for reasons of non-compliance with section 132(2) (sic) 133(2) of the Electoral Act. An act, which is a nullity he said, is of necessity incurably bad and proceedings founded on it are also incurably bad. He referred to Sken Consult (Nig.) Ltd v. Ukey (1981) 1 SC 6; Achebe v. Nwosu (2003) 7 N.W.L.R. (Pt 818) 103 at 132

As would be seen the whole exercise bordered on failure to take oath and other substantial non-compliance alleged. I will take that issue of failure to subscribe to oath first. There is no doubt that the taking of oath by those entrusted with very sensitive and important public duties is necessary. Chief Ahamba has given lots of illustration on this. He was of the view that the election could still be visited notwithstanding that election has been completed. According to him the provision of section 18 of the Act could not be waived and must be complied with to ensure impartiality and strict allegiance to the INEC regulation by the officers concerned.

In his own reaction the counsel to the 1st respondent took refuge under section 133(2) of the Electoral Act pointing out that PW1 – PW4 were officials of INEC who ought to be joined as respondents which was never done. This he regarded as fatal to the case of the appellant. He also harped on the fact that the Tribunal ruled that all answers elicited under cross-examination by the petitioner went to no issue as regards officials not joined. Since these facts were struck out, what was left of the petition could not sustain it and the petition was doomed to failure.

Having considered all points raised. I am of the firm view that the taking of oath is necessary but can the non-taking of same vitiate the proceedings? Section 18 of the Act reads:

“18. All Electoral Officers, Presiding Officers, and Returning Officers shall affirm or swear on oath of loyalty and neutrality indicating that they would not accept bribe or gratification from any person, and shall perform their functions and duties impartially in the interest of the Federal Republic of Nigeria without fear or favour.”

There is no doubt that the above was enacted to ensure efficiency and transparency in the discharge of their duties as Electoral officials. What then happens if the election goes on to conclusion and a return has been declared? Would the non-taking of oath render all steps taken ineffective? So it may seem but the Act again came in to salvage such situation by enacting Section 135(1) of the Electoral Act 2002. It reads:

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

(2) An election shall not be liable to be questioned by reason of a defect in the title, or want of title of the person conducting the election or acting in the office provided such a person has the right or authority of the Commission to the conduct of the Election. (Underlining for emphasis only)

The latter sentence underlined by me is instructive. It reads-

“and that the non-compliance did not affect substantially the result of the election.”

The lawmakers in their wisdom enacted Section 18 and later section 135(1) to save certain situations like the one we have on hand. As a result where the election was conducted under a free and fair atmosphere an the non-compliance did not affect the result of the election, the election would stand. It is on record that the petitioners’ witnesses 2, 3 and 4 in their testimony at the Tribunal said that though they did not subscribe to an oath they still performed their duties well. On the testimonies of the PWs the Tribunal held:

“It was the evidence under cross-examination of PW1, PW2, PW3, PW4, PW5 & PW6 called by the petitioner in his effort to prove the failure to take Oath, that failure to administer Oath of loyalty and neutrality on them by INEC did not affect the performance of their functions. PW6 even said he did his job constitutionally and without bias.”

That was a true assessment of the situation. The PW2 infact added that the election was free and fair though PW3 said something to the contrary, that is, that he did not think the election was free and fair. One would then want to know what he did when he saw that situation as an official. He kept mum.

These are officials on whose evidence reliance could be placed because they are supposed to be neutral. All the other PWS were party agents and in some instance, relation of the petitioner, e.g. PW5, Mr. Ignatius Egbuchukwu who said per page 53 of the record under cross examination thus:

“It is true that I am not happy that my cousin does not win the election. I have something to show that I was the agent of my party on that Election Day. Here it is.”

How much reliance can be placed on the evidence of such a person. His evidence must be taken with some caution. I must note were that Chief Ahamba believed that those officials were giving such damaging answers just to protect their own interest, having failed to fulfill the condition precedent to wit, the taking of oath. I do not think that was a fair statement to make. These officials came to support the case of the petitioner and the answers came only under cross-examination and fashioned after the provision of Section 135(1) of the Act. The situation may turn sour all the same there is need to protect their interest since any scathing remarks on them may have very devastating effect on them in the future.

The SAN for the appellant had argued strenuously that the law ought to be interpreted the way it is and it is not allowed for anyone to import certain interpretations into a law. That is true but no court can close its eyes to an existing law not yet repealed. Section 135(1) is an existing law not yet repealed. Cognisance of it must therefore be taken. One other way o f dealing with the situation is by substantive action calling for revocation of same if it is deemed inconsistent with the constitution of the land. It is then that all the odds would be tabled and considered. As it is as of today, that section is part of our laws.

Another point touched upon is the issue of steps allegedly taken by the 1st respondent before raising his objection. The 1st respondent said he had earlier given notice of his intention to raise the point and the court did not uphold it.It came to appreciate and uphold that point only after witnesses had testified and were found to be officials qualified to be joined under the law. An issue of jurisdiction can be raised at any stage of the proceedings and if the Tribunal having heard the witnesses felt they were the target of section 133(2) of the Act it was free to say so. That is what it said on pages 250 – 251 thus:

“We are of the firm view that the argument of the learned counsel to the petitioner missed the point. This is because as at June 21st 2003 when we delivered our ruling in the application of the 1st respondent of non-joinder of certain persons, 1st respondent relied for his application on paragraphs 6, 7 and 10(x) of the petition. Whereas the complaints and submission of learned senior counsel to the 1st respondent now is that questions were asked through the 1st respondent under cross-examination concerning the conducts of certain presiding officers and Returning officers who were not made respondents to the petition herein.

We perused the list of the respondents to the petition and the pleadings therein contained and was found that the submissions of learned senior counsel for 1st respondent are well founded except with respect to (a) booth 002 Umukalu Hall, Isunjaba Ward III where respondent 114 is joined as respondent, (b) Umugor village Hall booth 003 Njaba ward III where respondent was joined. (c) Amorji hall booth 009 where respondent 118 was joined and (d).

We are of the firm view that all the presiding officers and Returning Officers as identified above are necessary parties who ought to be joined as statutory Respondents to this petition by virtue of S.133(2) of Electoral Act, 2002 and para. 47(i) 1st Schedule to the Electoral Act.

Since they are not so joined all the pieces of evidence elicited under cross-examination of the 1st respondent by the counsel to the petition go to no issue.The law is settled that parties are bound by that their pleadings and any evidence given either under examination in chief of a witness or exteracted (sic) under cross-examination would go to no issue. And it does not lie in the mouth of the his (sic) person in default to contend that his adversary did not object to such evidence see the case of GEORGE & ORS. V. DOMINION FLOUR MILLS (1963) 1 NWLR Pg. 7,  EMEGOKWE & ORS. V. OKADIGBO & ORS. (1973) 4 SC 1, Pg. 13, see also ABDULLAHI V. ELAYO & ORS. (1993) 1 NWLR Pt. 268 Pg. 171 at 201, F – H.

The next thing to determine under the head in the ground 2 of the petition is whether election took place in Isu, Njaba and Nkwere Local governments particularly on the wards and booths pleaded under paragraph 10 of the petition. It was the submission of learned senior counsel to the 1st respondent that petitioner himself tendered election result emanating from polling booths in some area claimed there were no elections. He referred us to Exhibits 87 to 92, which are results of four (4) booths.

It is also the submission of learned senior counsel that PW1 – PW6 testified that the election which they conducted as presiding officers were free and fair despite the fact that they did not take oath. These were the only presiding officers called by him. He further submitted that the Tribunal should discountenance all allegations that thugs disrupted the election….” I agree with 1st respondent’s counsel that the tribunal merely kept watch to that stage when it now turned its attention to the objection in line with recent decided cases particularly the case of Sgt. Awuse v. Dr. Peter Odili cited supra.

On the question of other substantial non-compliance, counsel dwelt mainly on issues of denial how it is done, admissions and the light burden of proof it throws on the opposing side Exhibit 2, which the Electoral Commission Imo State was said to have issue. He went through the evidence of PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW17, PW18 to show that several anomalies were spotlighted all amounting to substantial non-compliance with the Act rendering the election ineffective.

The respondent on his part did not share that belief and could not see any non-compliance capable of vitiating the election. In my respectful view, I too cannot see any such non-compliance capable of adversely affecting the conduct of the election.The non-compliance complained of mainly came from witnesses who had some interests to protect except one, that is, PW3 who said he did not regard the election as free and fair because he did not take oath. One wonders how that relates to fairness in an election when he did nothing about the development if it actually occurred. He in fact went on to say that the non-taking of oath did not affect the collation he made. In short, I hold the respectful opinion that none subscription to oath and the said substantial non-compliance have not been shown to affect the conduct of the election. The non-compliance pleaded has not therefore been satisfactorily proved. The issue is resolved in favour of the respondent.

Issue No. 2 is the question of joinder, whether it was proper for the Tribunal to determine same after the Tribunal’s decision of 26/6/03. The SAN for the petitioner reproduced the findings of the Tribunal on this and insisted that a party should be consisted in stating his case. He referred to Akuneziri v. Okenwa (2000) 15 NWLR (Pt (691) 526 at 535.544. Only two days thereafter said counsel, the same Tribunal held in Udogu v. Okwaraonyia & Ors. (unreported judgment dated 30/7/03) that the issue of non-joinder could not be revisited except on appeal. He was of the view that the Tribunal lacked the competence to overrule itself without violating the doctrine of stare decisis Milad Benue State v. Uleagede (2000) 17 NWLR (Pt.74) 194 at 212 C – D. He maintained that sufficient presiding officers and Returning Officer were joined in respect of complaints pleaded in the petition. He quarrelled with the Tribunal’s view that the appellant should have compelled the officials to produce certain evidences he needed whereas the Tribunal could suo motu do that instead of waiting for the appellant to take committal proceedings against INEC or seek order of mandamus. The speed required in election petitions he said did not permit of diversion. Ht: urged the court to resolve that issue in favour of the appellant and Section 149(d) of Evidence Act be evoked against 2nd- 121st respondents instead.

On this issue, the SAN representing the 1st respondent did not make direct reply to that point raised. He dwelt on issue No.2 as formulated by him, but sufficient answer can be gathered from his response to issue No.1. As a matter of fact this issue is best determined as part of issue one but for the sake of emphasis, I need say that the problem here is the ruling earlier given by the Tribunal when the objection was first raised overruling the objection but later entertaining it in the same proceedings. The answer is simple.The Tribunal as it would appear, tried to follow this court’s decision in another proceeding specifically Sgt. Awuse v. Peter Odili urging the courts to avoid technicalities and to give parties opportunity of being heard on the merits, once there are substantial compliance. That I must say is in order. See the cases of (1) Jim Nwobodo v. Onoh (1984) 1 SCNLR 1 (1984) 1 SCNLR 1(2) Egolum v. Obasanjo & Ors (1999) 7 N.W.L.R. (Pt 611) 335 at 413 in which Achike (of blessed memory) said: “The heydays of technicalities are now over because the weights of judicial authorities have shifted from undue reliance on technicalities to doing substantial justice even handedly to the parties to the case.”

The Tribunal in any case gave reasons for revisiting the issue. It arose out of answers to cross examination, which is part of the proceedings and the Tribunal believed it could revisit it having seen and heard the witness. It concluded that such other persons ought to have been joined. Its ruling has already been reproduced supra and I see no good reason why it can be disturbed. That issue too is resolved in favour of the respondent.

Issue No. 3 as formulated by the appellant is on the matter of Section 149(d) of the Evidence Act which the Tribunal evoked against the appellant for failure to produce the statements of result sheets at the trial. As usual the counsel to the 1st respondent did not directly avert his mind to the issues seriatim as formulated but his answers can be gathered from the argument on the issues generally.

The 1st respondent’s counsel argued that the burden of proving an issue is on the petitioner who he said failed to plead the number of valid and invalid votes. No objection to votes were filed within time and not having given evidence on such invalid votes, the petitioner could not introduce such void votes or irregularities in cross examination of the 1st respondent or in his brief of argument, since that would amount to amending his petition arid be caught by paragraph 14(2) Schedule 1. Evidence not pleaded cannot be allowed. The appellant he said never pleaded the scores he intended to object to possibly in form of a schedule.

Failure to plead them or give evidence on them rendered what ever answers elicited from 1st respondent under cross -examination inadmissible. He relied on Chukwuemeka Ojukwu v. Dr. E. Onwudiwe (1984) 2 SC 15; Etuk v. Isemin (1992) 4 NWLR (Pt 236) 402. All allegations of fictitious votes, malpractices irregularities and falsification of votes were directed against Presiding Officers in charge of the polling units. He relied an Nwoke v. Ebeogu (1999) 6 NWLR (Pt 606) 247 at 258. He pointed out that the burden is on the petitioner who denies the correctness and authenticity of the return made to rebut the presumption of irregularity under Section 115, 148 and 149 of the Evidence Act and cited Omoboriowo v. Ajasin (1984) 1 SC. Counsel in that regard reproduced the Tribunal’s findings.

The appellant he said had the duty of pinpointing the wards in which the alleged mathematical errors occurred and relied on Ojo v. Osho (1999) 5 NWLR (Pt 605) 444. The appellant he added, obtained election results from INEC and tendered them but made no further use of them. Counsel was of the view that the Tribunal was right in refusing to be drawn into examining them on behalf of the appellant. Counsel relied for this on Alhaji Umoru Musa Yar’adua v. Baidu Bardo (1992) 3 NWLR (Pt 231) 653.

Counsel concluded that the Tribunal was right following the decision in Yar’adua’s case supra in refusing to take cognisance of the Tables prepared by the appellant’s counsel during redress. He reproduced the Tribunal’s finding in that regard. The point at stake here is Section 149(d) Evidence Act as evoked against the stand of the appellant, whether proper. It would appear that counsel for the appellant too did not avert his mind to that issue in his argument. He rather went straight to issue 4 but what is at stake is not that difficult to discover. It is contained in the Tribunal’s finding per page 33 of the record, paragraph 2 thereof. It reads:

“He also urged us to invoke section 149(d) of the Evidence Act, 1990 against the 2nd respondent and hold that if those result sheets had been produced it would have gone in favour of the petitioner. We are unable to accept this submission because the petitioner ought to have obtained an order from the Tribunal to compel the Resident Electoral Commissioner to produce those documents if he so desired. Having abandoned his right to follow the laid down procedure by getting those documents by compulsion, he cannot now be heard to complain on the same matter.”

Apparently the appellant had sought by subpoena to have the result sheets from the 2nd respondent, which it failed to produce. The Tribunal held the view that the appellant had a further remedy of asking the Tribunal to compel the 2nd – 121st respondents to produce the said sheets if it refused to respond to the subpoena issued. One would note that it was the appellant who invoked section 149(d) of the Evidence Act against the 2nd – 121st respondents and not the other way round. The Tribunal thereupon responded that there was one other step the appellant could take before he could evoke that section of the Evidence Act. Not having done so, he could not be heard to complain. To my mind that is apt and logical. The Tribunal’s stand on that issue is founded in law and can hardly be faulted. The law is like a double-edged sword. It can cut either way. That issue too is resolved against the appellant and in favour of the 1st respondent.

Issue No. 4 is on whether or not the petition ought to succeed. The learned SAN approached the issue on 4 planks, that is- (a) The decision that election took place in most of the wards and booths.

(b) Failure to make necessary determinations and findings on issues and complaints duly raised.

(c) whether the appellant had a duty to place a list of his agents before the Tribunal; and

(d) Generally whether the petition ought to succeed.

Counsel asked the court to decide the issue in favour of the appellant at least in respect of the prayers sought in the alternative, that is, ….

(c) That the election be declared void and a fresh election ordered to determine the representative of the Nkwerre/Isu/Nwangele/Njaba Federal Constituency in the House of representative of the National Assembly.

Or

(d) That there be a fresh election at Isu, Nkwerre and Njaba Local Government Areas to determine the said representative.”

Counsel adopted the summary of facts in the brief for the argument of that issue. He also adopted the arguments on issues (i) (ii) & (iii) of his brief. He stressed that every stage in the processes or proceedings ought to take place within the polling station. He relied on Igede v. Owulo supra. According to him the respondent admitted that the statutory requirements were not complied within booths 10A(i)(f); 10A(ii)(g) to (m), 10C(i)(a) and (b), 10c(ii). All other allegations made were met with evasive denials.

Reference to statements of results/forms and reliance on the evidence of PW5 by the Tribunal did not meet the complaints made, counsel said. That he said included the fact that the 2nd – 121st respondents invented the Statement of Result Forms at places not prescribed by the Act. The use of the records he said was an admission that did not take place in some booths and wards. The Tribunal he said had the duty of tying their decision to the voting strength as pleaded and supported by evidence at the trial. The passive surmising he said, did a palpable violence to the facts pleaded and evidence led even on Isu Local Government Area. What happened on 12/4/02 of election he added, did not qualify for a free and fair election as contemplated by the Electoral Act 2002?

Counsel then went on to enumerate what a good judgment should contain and cited Ogolo v. Ogolo (1997) 7 NWLR (Pt 83) 460. Counsel said the material complaints of the appellant had already been compressed and distilled in the summary of facts in the brief he listed therein. The SAN went on to list the votes ward-by-ward vis-a-vis the exhibits tendered in the case and concluded that the exhibits revealed facts, which the Tribunal failed to consider, while the summation of all the votes scored by the candidates did not agree with the total of 139,000 votes recorded b y the Presiding Officer.

Counsel who spoke of used and unused ballot papers and failed to establish that the votes recorded were in excess of the 72 registered voters by 22 votes, Counsel went on to provide other instances and cited the case of Norodum v. Ezeani (2001) 2 SC 145 at 147 – 148. He noted that the Tribunal on its own raised the issue of list of agents of the appellant and decided it against the appellant without giving the appellant the opportunity of hearing that issue by pleadings or evidence. This he said was wrong relying on Governor of Kogi State v. Yakubu (2001) 3 SC 66 at 72; Hambe v. Hueze (2001) 2 SC 26 at 33 and 39; Onwunalu v. Osademe (1971) ANLR 15 at 17. The decision of the Tribunal he stressed was a miscarriage of justice.

On the issue of whether the petition should succeed generally, counsel reproduced the finding of the Tribunal per page 236 of the record. It read: “it is settled law that petitioner who complains about electoral malpractice irregularities and unlawfulness of votes cast in an election has the burden to establish all the allegation made through cogent and satisfactory oral and documentary evidence. He must produce and tender al the forms used in the conduct of the election and to call witnesses to testify as to the misapplication of the votes scored by the contestants in the election see the case of YARADUA V. BARDA (1992) 3 NWLR Pt. 231 Pg. 638 at 653, DAUDA V. HALLITU (1999) 5 NWLR (Pt. 601) Pg. 94 at 99 A – D.”

As I have already indicated supra, the counsel for the 1st respondent did not give any direct reply to the issues formulated by the appellant. He rather followed his own issues and argued them In any case they all flow from the grounds of appeal filed. The above finding of the Tribunal reproduced by the learned counsel for the appellant was not the only area in which the court made its findings. To my mind the Tribunal made an indepth treatment of the points at stake. The Tribunal reproduced the appellant’s complaint at page 235 thus:

“The facts pleaded in support of this ground will be found in paragraphs 9 & 10 of the petition which paragraphs are reproduced as follows: (9) The petitioner scored the majority of lawful votes cast at the election and shall be proof at the trial of this petition tender the rely (sic) upon Forms EC8A(1), EC8B(1), EC8C(1), EC8D(1), and all other forms used by on behalf of the 2nd Respondent for the conduct of the Election at each level of the Election in the constituency including the Register used for accreditation of the voters.

(10) The accurate votes scored by the petitioner and 1st respondent were not recorded as scored and the votes thus ascribed is full of wrong calculations, entry of fictitious votes, entry of void votes, reduction of votes scored, all in favour of the 1st respondent and to the detriment of the petitioner in the following local governments, wards booths and entries.”

It is sequel to this that the Tribunal made that finding that the petitioner needed to establish all the allegations made, relying on Yar’adua v. Barda and Dauda v. Halitu supra. Apart from that, the Tribunal considered all the points of irregularity pinpointed by the petitioner per pages 237-245. The evidence is too voluminous to be reproduced here but suffice it to say that the Tribunal rightly alluded to the evidence of PW2-PW6 who said the election was free and fair and these are witnesses for the petitioner. The Tribunal also referred to the tables contained in pages 5-12 of counsel’s written address where he urged the Tribunal to expunge excess votes accredited to the petitioner and 1st respondent and to declare void the results in Form EC8A(1).

The Tribunal made some findings, which I believe, is necessary to be produced (though long) for ease of reference. The Tribunal held per page 253 2nd paragraph and 3rd paragraph thus:

“We have ourselves observed that the petitioner tendered result sheets for some polling units forms EC8A(1)s, for EC8B(1) ward collation result and form EC8C(1), local government collation results, Exhibit 3 – 125. We find that election actually took place in most of the wards and polling booths complained of by the petitioners. We are further fortified in this belief by Exhibits 132 to 156 tendered by 1st respondent which are INEC forms used in the conduct of the election to, hold that election took place in all that three local governments as earlier restited (sic) by PW1 – PW6. The presumption of the law by those exhibits tendered is that election actually took place and the onus is on the petitioner to rebut that presumption see S.114 and 115 and 115 Evidence Act Cap. 112, LFN 1990.

It is settled law that where there are material contradictions in the evidence of a party’s witnesses, it is not the duty of a court of law or tribunal to pick and choose from the evidence of such witnesses or accredit one witness and discredit the other.The court or tribunal must hold that such a party had not proved his case see the case of OGUNBIYI V. OGUNDIPE & ORS. (1992) 4 NWLR Pt. 253 Pg. 35 E – H and page 40 G – H. It is also relevant here to cite the case of ALHAJI WAZIRI IBRAHIM VS. ALH. SHEHU SHAGARI & ORS. (1983) 9 SC 59 at 64 – 65 on the effects of calling witnesses who turned out to give evidence that is against the pleaded case of the party calling him.”

That exactly is what happened in this case. The witnesses called by the petitioner turned against hint and no matter how beautiful the submissions of counsel it can never take the place of pleadings or evidence at the trial and the court so found. There were serious allegations made against many of the Presiding officers and Electoral officers who were never joined. Only 4 officials were called as witnesses, the others were left out.

There was nowhere in the proceedings where the statutory officials called said there was no election in any particular place. These are officials who have no axe to grind and except in very, unusual cases their evidence should be relied upon, all things being equal, Party agents and party stalwarts always have their party’s interest to protect, hence I noted from the onset that their evidence need be taken with some caution.The sheets produced by INEC did not reveal such anomalies as now harped upon and where the sheets were loaded with half truths, the petitioner had a duty to so specify and bring officials in charge of such areas for thorough examination and cross-examination as to the role they placed in the unfolding events. Instead, the appellant called only 6 officials who in any case did not support his case in all material particular. I honestly do not see how the Tribunal’s decision can be faulted in that regard. That issue is therefore resolved in favour of the respondent.

On whether the petition ought generally to succeed, Chief Ahamba reproduced the court’s finding on page 236 of the record and said nothing more, To my mind the finding of the Tribunal in  that regard represents the true position of the law hence its findings need not  be disturbed. The issues framed by the 1st respondent are resolved in his favour in that the issue of Section 133(2) can be raised at by time and the appellant had the burden of proving the majority of lawful votes cast which he failed to discharge. The Tribunal was right in holding that the appellant did not prove sufficient non-compliance with the Electoral Act, 2002.

In the result, I am convinced that the appeal lacks merit. It therefore fails. The decision of the lower Tribunal is hereby affirmed and the appeal is dismissed. There shall be N10,000.00 costs in favour of the 1st respondent as against the appellant.

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Other Citations: (2003)LCN/1492(CA)