Bilkisu Tinuola Gambari & Anor V. Miss Gbemisola R. Saraki & Ors (2009)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A.
Bilkisu Tinuola Gambari contested the Kwara State Central Senatorial District election on the platform of the Action Congress, which is the 2nd Appellant herein, on the 28th April, 2008. Among others, she contested with Gbemisola R. Saraki, the 1st Respondent, who contested on the platform of the Peoples Democratic Party, the 2nd Respondent herein. At the conclusion of the election, the 1st Respondent was declared duly elected, having scored a majority of 248, 589 votes against the 1st Appellant’s 12, 474 votes. Evidently dissatisfied with this declaration, the Appellants filed a Petition before the Election Petitions Tribunal wherein they sought an order declaring the 1st Respondent’s election invalid and void on five grounds as set out in the Petition. At the close of trial, the lower Tribunal, not being persuaded by nor enamoured of the evidence adduced by the Appellants, in its judgemnt delivered on the 2nd June, 2008, held that the Appellants had failed to prove their case and so dismissed the Petition. Once more dissatisfied by the decision, the Appellants appealed to this Court. They filed seven grounds of Appeal.
On the 27th October, 2008, at the hearing of the Appeal, Mr. Jawondo, learned Counsel for the Appellants, adopted the Appellants’ Brief of argument as well as their reply brief filed on 20th August, 2008 and 9th September, 2008 respectively. Counsel submitted an additional list of authorities to support his submissions in the Briefs. He urged the Court to allow the Appeal.
Mr. Egbewole, learned Counsel for the 1st Respondent adopted the 1st Respondent’s Brief dated and filed on the 25th August, 2008. Learned Counsel responded to the additional authorities submitted by the Appellants’ Counsel and urged the Court to dismiss the Appeal.
Mr. Oladipo, learned Counsel for the 2nd Respondent, equally adopted the 2nd Respondent’s Brief of Argument dated and filed 18th September, 2008. Having not been served with a copy of the additional authorities filed by the Appellants’ Counsel, he urged the Court to discountenance same. Counsel went on to urge the Court to dismiss the Appeal.
Finally, Mr. Salako, learned Counsel for the 3rd to 32nd Respondents, adopted the 3rd to 32nd Respondents’ Brief dated and filed on 8th September, 2008. Counsel aligned himself with the submissions of Mr. Egbewole in respect of the additional authorities, and urged the Court to dismiss the Appeal.
From the Grounds of Appeal filed, the Appellants, in their Brief of Argument, distilled four issues for determination by this Court. On their part, the 1st Respondent, 2nd Respondent and 3rd to 32nd Respondents respectively each formulated issues from their vantage points ranging from two to three, for determination by this Court. On a close perusal of the Grounds of Appeal filed in conjunction with the facts as disclosed in the transcribed record of the Tribunal, I am of the view that the following three issues suffice to dispose of the Appeal:
- Whether, given the evidence adduced and presented, the Tribunal was in error when it applied the decision of the Supreme Court in the case of Buhari V. Obasanjo (2004) 2 NWLR (Pt. 910) 241 at 310 to the peculiar circumstances of the Petition.
- Whether the Tribunal was in error when it held that the election was conducted in accordance with the provisions of the Electoral Act.
- Whether the Tribunal failed to, properly consider and evaluate the evidence of the Petitioners and their witnesses.
Under issue one, which is whether, given the evidence adduced and presented, the Tribunal was in error when it applied the decision of the Supreme Court in the case of Buhari V. Obasanjo (2004) 2 NWLR (Pt. 910) 241 at 310 to the peculiar circumstances of the Petition, the fulcrum of the Appellants’ complaint is that the Tribunal erred when it relied on the decision in the case of Buhari V. Obasanjo (2004) 2 NWLR (Pt. 910) 241 at 310 to condone the failure of the 3rd Respondent to produce certain electoral documents, i.e. the Voters’ Registers, the INEC Data Base of the Electronic Voters’ Registers and the Result Forms listed in the Subpoena Duces Tecum served on it. The Appellants contend that the documents and materials listed in the Subpoena are covered by the pleadings, particularly paragraph 22 of the Petition and crucial to the Appellants’ case. They also contend that, by Section 73 of the Electoral Act, 2005, the 3rd Appellant has exclusive possession and custody of the listed documents and yet, refused to produce them, thus making it impossible for the Appellants to use the documents and the materials for the prosecution of the Petition. The exception being the Forms EC8A, EC8B, EC8C and EC8D in respect of which copies are supposed to be given to the Appellants or their agents. The Appellants however refer to paragraph 18. 1 (i), (ii) and (iii) of the Petition where they stated that they were not in possession of the Result Forms because their agents where driven away from the polling and collation centres. The Appellants argue that, in this circumstance, they cannot be expected to have recourse to secondary copies of the election documents/materials. It is for this reason that they contend that the decision in Buhari V. Obasanjo (Supra) is not applicable to the facts and circumstances of this Petition and so was wrongly invoked by the Tribunal. Instead, the Appellants postulate that the Tribunal acted wrongly in failing to invoke the provisions of Section 149 (d) of the Evidence Act against the 3rd Respondent considering these state of affairs.
The Appellants further contend that, having regard to the Appellants’ allegations of non-voting, multiple thumb-printing of ballot papers and ballot stuffing contained in the Petition, the Voters’ Registers used in the election, the Result Forms and the INEC Data Base of the Registers are very crucial to the proof of the allegations. They argue that, the 3rd Respondent, having failed or refused to produce these documents, the Court is not in a position to say what effect the documents/materials would have had on the outcome of the case, and so the Appellants’ pray for an order of retrial. They rely on Xtoudos Services Nigeria Ltd. V. Taisei (W.A.) Ltd. (2006) 6 SC200 at 216 – 217.
In responding to these submissions, the 1st Respondent referred to paragraph 22 of the Petition where the Appellants had stated their intention to rely on a “Special Direct Data Capturing Machine” whereas this was not itemized in the record of list of documents to be relied upon supplied by them at pages 77 – 78 of the record. In spite of this, the 1st Respondent, in paragraph 28 of her reply to the Petition, denied any knowledge of such Direct Data Capturing Machine and instead gave the Petitioners notice to produce same for inspection. 1st Respondent submits that there is no mention of any database in the Electoral Act, 2006 or in the Election Manual. She therefore invoked the Latin maxim of nemo dat quod non habet and referred to her denial of the existence of same in paragraphs 2, 27 and 28 of the 1st Respondent’s Reply and paragraph 2 of the 2nd Respondent’s Reply. 1st Respondent submits that the presumption in Section 149 (d) of the Evidence Act envisages that such a document is in existence. She however contends that in this case, the Appellants themselves are unsure of the document sought to be produced as can be seen by the various names ascribed to it, i.e. Data Capturing Machine or INEC Data Base. The Court, she argues, is therefore not in a position to presume the existence of any of them. Awoshile V. Shotumbo (1986) 3 NWLR (pt. 29) 471; Onwujuba V. Obiemu (1991) 1 NSCC 492 at 497.
In respect of the Voters’ Register, the 1st Respondent contends that INEC had duly informed the Tribunal as far back as 9th January, 2008 that the Register was available for collection by the Appellants upon payment for certification in line with Section 16 of the Electoral Act. A subsequent attempt by the Appellants to tender some documents, including a Voters’ Register, on the 5th February, 2008 failed on the ground that they were not certified, being public documents. This much was admitted by the Appellants’ Counsel at page 618 of the record. However, another attempt to tender 30 “back up Registers”, even though vehemently opposed, succeeded and these are in evidence as “Exhibit SEPT/4/07 REA1 – REA30”.
The 1st Respondent argues that since it is evident that the Appellants had in their possession secondary evidence of the Voters’ Registers, which they however failed to have certified as required by the Evidence Act, their failure cannot be visited on anyone. She submits that, being in possession of such secondary evidence and failing to tender same, the Appellants are caught by the decision in Buhari V. Obasanjo (Supra) and the Tribunal was right to have invoked same. 1st Respondent submits that a reading of Section 73 of the Electoral Act in conjunction with Section 16 reveals that INEC only has “official custody” rather than “exclusive custody” of the Register, as the Voters’ Register can be given to anybody or political party who/which requests for same upon payment for certification. In the same vein, by Section 75 of the Act, all agents of political parties were issued with the results of elections held at the Ward and Local Governments. She referred to Exhibits PE2, PE2B, PE2C, PE2D, PE2E, PE3 and PE4 which are results issued on Forms EC8A, EC8C and EC8E.
The 2nd Respondent, (PDP), in its Brief of Argument, contends that the Appellants were less than sincere when they allege that the 3rd Respondent failed to produce the electronic materials listed in the Subpoena. A comparison of the list of documents ordered to be produced at page 1372 of the record and the list of documents tendered before the Tribunal at pages 705 – 706 of the record shows that items 2, 3, 4 and 7 form part of the documents ordered by the Tribunal to be produced. The 2nd Respondent completely endorsed the finding of the Tribunal in its Judgment that the remedy open to the Petitioners in the circumstance of the non-production of the documents is not an invocation of the provision of Section 149 (d) of the Evidence Act, and thus relied on Buhari V. Obasanjo (Supra). It is submitted instead, that the Appellants ought to have fallen back to I secondary evidence as permissible under Sections 97(1) and 97(2) of the Evidence Act for those documents not produced pursuant to the Tribunal’s order. It is therefore submitted that this case did not present an appropriate opportunity for the invocation of the presumption under Section 149(d) of the Evidence Act.
The 3rd to 32nd Respondents’ submissions on this issue are virtually a replication of the submissions of the 1st Respondent. It would therefore serve no useful purpose to recapitulate same here. Suffice it to say that as the body and officers responsible for conducting the election, these Respondents reiterate, as they did before the Tribunal, that:
I. the Appellants were at liberty to receive copies of the Voters Registers requested for upon payment for certification in line with Section 16 of the Electoral Act;
II. the Respondents had no knowledge of the INEC Database requested for in the Subpoena as no such document existed nor was provided for in the Electoral Law or the Election Manual; and that
III. following the tendering of 30 Voters Registers by the Appellants, the Tribunal acted rightly in applying the decision in Buhari V. Obasanjo (Supra) since it was evident that the Appellants had secondary copies of the Registers in their possession.
The Respondents therefore urged the Court to dismiss the Appeal on this issue.
The facts as disclosed in the record of the Tribunal disclose that a request was made by the Appellants, as Petitioners, via an application for the production of the Voters’ Registers, amongst others. Following on the heels of this, the Tribunal issued and caused to be served on the 3rd Respondent a Subpoena Duces Tecum as set out at pages 370 to 372 of the record. Evidently, this issue hinges on the propriety of the Tribunal’s decision in preferring the decision in Buhari V. Obasanjo (Supra) to the presumption of law in Section 149 (d) of the Evidence Act when the 3rd Respondent failed to produce the Voters’ registers ‘given the facts of the case. Given the circumstances spelt out during the trial, I find myself quite unable to lean favourably towards the arguments of the Appellants in this regard. The basis for the issuance of the Subpoena Duces Tecum is said to be Section 73 of the Electoral Act in conjunction with paragraphs 22 and 18 of the Petition before the Tribunal. The Appellants contend that by virtue of Section 73 of the Act, the 3rd Respondent has ‘exclusive’ possession of the Voters’ Registers. By paragraphs 22 and 18 of the Petition, they explain the essence of the Voters’ Registers and the Result sheets to the proof of the allegations in the Petition. The starting point therefore has to be the law relied upon by the Appellants. Is the 3rd Respondent indeed in custody of the Registers to the exclusion of all others?
The of the relevant provision states as follows:
“73. The Chief Electoral Commissioner or any officer authorized by him shall keep official custody of all the documents including statement of results and ballot papers relating to the election, which are returned to the Commission by the Returning Officers.”
(Underlining supplied for emphasis).
Clearly what the law provides for is not exclusive, but official custody. What this means is that the authentic statement of results and voters’ registers in respect of an election can only be sourced from the 3rd Respondent and its authorized officers. No other person or body can purport to have a Voters Register in their possession which has not passed through and received the due stamp of authenticity from the Chief Electoral Officer or such other officers authorized by him. How can these documents be accessed? Again the law does not keep us guessing. The Electoral Act directs that:
“16. The Commission shall cause a voters’ register for each state to be printed, and any person or political party may obtain from the Commission, on payment of such charges, a certified copy of any voters’ register for the State or for a Local Government or Area Councilor Registration Area within it.”
(Underlining supplied for emphasis).
It is therefore no wonder that the Appellants were able to tender 30 Voters Registers out of the Voters Registers from 52 Wards of the 4 Local Government Areas pleaded in paragraph 22 of the Petition. One may therefore ask: how did the Appellants access the Voters Registers tendered? Evidently from the same process which they now seem to have shunned. Since therefore the Appellants were, by law, at liberty to receive certified true copies of the Voters Registers upon payment for the due certification, the initiative rests completely with them. Consequently, where they default in taking the necessary steps to acquire these documents, it is unconscionable for them to engage in the blame game, seeking to lay responsibility and/or fault at the door of the Tribunal.
A Subpoena is the method used to: procure witnesses in trials before superior courts of record. It is issued like a witness summons, on the application of the party concerned, to the registrar of the court and served by the court bailiff. It may be for the witness to attend the court and testify (subpoena ad testificandum) or for him to produce a document in his possession or under his control (subpoena duces tecum). A person who wants to tender a document in the possession of the other party may serve on the latter a subpoena duces tecum instead of a notice to produce. Failure to obey a subpoena has the same effect as not answering to a summons. The court may issue a warrant for the arrest of the defaulting witness or commit him to prison for contempt. I am in complete agreement with the Respondents that the Tribunal acted quite rightly, in the face of the facts, in applying the decision in Buhari V. Obasanjo (Supra). In that case, which are virtually on all fours with the instant case, the petitioner issued to the 3rd Respondent – INEC – notice to produce the result of the 2003 Presidential Election and other documents in the course of trial at the Court of Appeal? These were not produced and the Petitioners’ Counsel applied to the Court of Appeal for a subpoena directed at the 3rd Respondent to produce the result and certain documents. Again the results and documents were not produced. The Court of Appeal, in its Judgment, observed inter alia that the conduct of the 3rd Respondent in refusing to produce the result and the other documents amounted to a negation of INEC’s claim to neutrality and impartiality. On appeal against the decision of the Court of Appeal which refused to nullify the election, Uwais, CJN pronounced thus at pages 127 – 128 of the report:
the proper procedure to be followed as a result of the failure to produce the document, is for the party that needed the documents to adduce secondary evidence of them in accordance with Sections 97 (1) (a) and 98 of the Evidence Act or ask the Court to compel the defaulter to produce the documents by committal to prison.”
Hear Edozie, JSC at page 495 of the same report:
”Subpoena is a court process commanding any person to attend court and produce a document or evidence before the court. The effect of failure to answer the Subpoena does not lead to an adverse finding against the defaulting party. The Appellant was entitled to issue committal processes or lead secondary evidence on, the matter.”
In the instant case, the Appellants did not do as exhorted by the apex Court. Happily the Tribunal did not fall into the error of adversely commenting on the default in the production or even in going to the extent of making the presumption it was invited to make under Section 149 (d) of the Evidence Act. Such would have been totally uncalled for given the options available to the Petitioners before it, which options they declined to explore and act upon for reasons that are not readily obvious.
Section 149 (d) of the Evidence Act provides that:
“Evidence which could be produced and is not produced would, if produced, be unfavourable to the person who withholds it”.
The purport of this provision is where a party to a suit does not adduce evidence which he is supposed to and has the opportunity to adduce, then it may be presumed that the evidence will be against him if adduced. In other words, where a plaintiff is to prove a certain fact and tender a document which he has the primary duty of establishing before the court and he fails to do so, if the defendant also refuses to produce same, the plaintiff cannot, by Section 149 (d) shift the burden on the defendant. The section will be inapplicable because by Section 137 (c) of the Act, the onus is on the plaintiff. This is the decision of the Supreme Court in the case of Tsokwa V. Union Bank of Nigeria Ltd (1996) 10 NWLR (Pt. 478) 281 at 315 – 316. However, if a party who is to produce such evidence fails to do so, then Section 149(d) will be applied. Ogwuru V. Cooperative Bank of Eastern Nigeria Ltd. (1994) 8 NWLR (Pt. 365) 685 at 700; UBA Ltd V. Ibhafidon (1994) 1 NWLR (Pt. 318) 90 at 119; Onuwaje V. Ogbeide (1991) 3 NWLR (Pt. 178) 147 at 162-163; Mufutau Aremu V. State (1991) 7 NWLR (Pt. 201) 1 at 17. However, before the presumption can operate, the onus is on the party urging the court so to do to prove the following:
(a) that the piece of evidence is available, i.e. that it exists;
(b) that if it is a document, it could be produced by the application of due diligence;
(c) that the document is capable of production in court;
(d) that the party has intentionally refused to produce it, and
(e) that if produced, the evidence would be adverse to him.
Chief Udo Udo V. Chief Okupa (1991) 5 NWLR (Pt. 191) 365 at 386; Tsokwa Motors (Nig) Ltd V. Dejo Awoniyi (1999) 1 NWLR (Pt. 586) 199 at 207.
Accordingly, in the application of the subsection, it should be first of all determined the party on whom the burden of proof of the fact to be proved by the evidence “which could be and is not produced” lies. It is against that party that the presumption can be rightly invoked where evidence is withheld. In other words, the presumption should not be applied against the opposite party in such a situation otherwise there would be a wrong shifting of burdens. In the instant case, it would be totally inappropriate to invoke this presumption against the 3rd Respondent (INEC), as the burden of proving the allegations of over-voting, insufficiency of ballot papers, and such other malpractices alleged in the Petition lay not on INEC but on the Petitioner. The irony is that this presumption could successfully have been invoked against the Petitioners for failing to procure the same Voters’ Registers following due process and placing it before the Tribunal.
Nevertheless, the point must be made that the Appellants had other options of accessing these materials which options, they failed to pursue. Therefore, simply throwing up their hands in self inflicted helplessness and presuming to complain is neither helpful to their case nor sensible, and amounts to nothing but crying over spilt milk. With a little more diligence, assiduousness and/or sincerity, the outstanding Voters Registers could have been placed before the Tribunal and put to the required use. This is certainly not a situation that calls for the invocation of Section 149 (d) of the Evidence Act. By Section 137 (1) of the Evidence Act, the burden of proof lies squarely on the person proposing a certain state of affairs and who would fail if no evidence at all is led to prove same. Section 149 (d) is not supposed to be used as an instrument for a fishing expedition. From the peculiar facts of the case, it is apparent, at least to me, that the failure to take steps to collect certified copies of the Voters Registers from the 3rd Respondent upon payment for certification was a deliberate Act, and the Appellants are therefore foreclosed from now complaining. By failing to act on this, as far back as 9th January, 2008, when the Respondents informed the Tribunal that the Voters Registers were available for certification and therefore confirmed the Respondents’ readiness to so furnish the Appellants with same, the Appellants advertently or inadvertently shot themselves in the leg, thus causing their Petition to suffer from a severe but avoidable case of anaemia, which subsequently proved fatal, as the life-blood of the Petition in respect of proof of the allegations of over-voting, etc, was thus drained. The same findings apply to the Result Sheets requested for in the Subpoena, mutatis mutandis. This issue: is necessarily resolved in favour of the Respondents.
The second issue arising for the determination of this Court is whether the Tribunal was in error when it held that the election was conducted in accordance with the provisions of the Electoral Act. The Appellants submit that the Tribunal was wrong in treating as evidence of voting as prescribed by law and in placing reliance on the unreliable evidence of the Respondents’ witnesses. The pith and substance of the submissions of the Appellants under this issue is that the voting procedure of the 28th April, 2007 was conducted in contravention of the provisions of the Electoral Act, 2006, in particular, Sections 50 (1), (2) and 53 (1) thereof. It is their position that, whereas the Law requires that the procedure for an election should be by ‘open- secret’ ballot’ whereby the processes of accreditation, issuance of ballot papers and thumb printing of ballot papers by voters is one continuous process after which the voter leaves the polling unit upon casting his vote, the evidence before the Tribunal disclosed otherwise. The Appellants contend that voters could not vote by open-secret ballot as provided under Section 53 (1) of the Act as they were openly intimidated. The Appellants further contend in their pleadings, particularly paragraph 13.1 thereof that the 3rd, 32nd and 33rd Respondents, in concert with Military and Police officers, stuffed already thumb printed ballot papers into the ballot boxes in favour of the 1st Respondent and with her consent and authority. The Appellants equally contend that, by the pleadings and evidence of the 1st Respondent, only registered voters who were at the polling station by 10.00 am were allowed to vote. They draw this conclusion from the fact that voters who came in after 10.00am were not allowed to vote. They refer to the evidence of PW6 at page 663 of the record. It is further the contention of the Appellants that the Petitioners’ witnesses, in conjunction with the Respondents’ witnesses, particularly RW3, RW4, RW5, RW6 and RW7 testified to the effect that no election as prescribed under the law took place. The Appellants argue that the law does not speak of substantial compliance with the procedure of the election, as the provisions are mandatory. They contend that the abandonment of the enabling laws in the conduct of the election therefore rendered the exercise a nullity. Mozie V. Mbamalu (2006) 7 SC (Pt. II) 154 at 201; Ogolo V. Ogolo (2006) 2 SC (Pt. 1) 61 at 68; Uwagbue V. State (2008) FWLR (pt. 419) 425 at 447. Being mindful of Section 146 of the Act, the Appellants submit that the non-compliance anticipated by this provision is non-compliance that does not affect the result of the election and not the failure to conduct the election as prescribed by law. The Appellants therefore urged the Court to allow the Appeal on this issue and1sonullify the election of the 1st Respondent.
In her response, the 1st Respondent submits that nowhere in Section 50 of the Electoral Act is it provided that accreditation and voting has to be done simultaneously?
She contends that the entire Respondents’ witnesses testified that they were accredited and issued with ballot papers with which they voted and then dropped the ballot papers into the boxes. She submits that none of the witnesses before the Tribunal gave evidence to the effect that the election was by ‘open-open’ ballot as alleged by the Petitioners. She also denied that accreditation ended by 10.00 am. She referred to the testimonies of RW5, RW6 and RW7 in proof that all who came out to cast their vote, voted and no-one was turned away, as well as the evidence of PW9, PW11 and PW22 under cross-examination, who likewise voted.
On the assumption that there were minor issues of non-compliance, the 1st Respondent submits that it must be shown by credible evidence, (and not through address of Counsel), that the non-compliance is not only substantial but that it also substantially affected the result. Agbaje V. Fashola (2008) 6 NWLR (pt. 1082) 90 at 133; Uwuljo V. Bukai (1999) 3 NNWLR (pt. 597) 534. Additionally, there was no evidence before the Tribunal on the probable number of votes that could have been affected by the alleged non-compliance. She submits that even where such non-compliance exists, it is curable by Section 146 of the Electoral Act. 1st Respondent further relies on the decision in Buhari V. Obasanjo (Supra) stating the position of the law today that the effect of non-compliance must have substantially affected the result of the election and this is a burden which must be discharged by the Petitioner. The 1st Respondent submits further that the Tribunal did not waive the issue of noncompliance. Instead, it considered same and held that the Appellants failed to show its effect on the result of the election. Therefore, the Appellants were held to have failed to prove substantial non-compliance. She therefore urged the Court to resolve this issue against the Appellants.
The 2nd Respondent, PDP, on its part, while agreeing in the most part with the submissions of the 1st Respondent, isolated specific instances and pieces of evidence for emphasis. On the allegation in the Petition that most of the Polling Units did not have sufficient ballot papers, the Respondent submitted that the Petitioners did not tender most of the Voters’ Registers for the Polling Units where they had agents in order to prove the number of voters on the Register. It submits that insufficiency of ballot papers will only be established by a comparison of the ballot papers supplied vis a vis the number of voters on the Register. The Respondent further contends that none of the Petitioners’ witnesses testified on the voting procedure adopted in particular Polling Units where they served as agents to prove the allegation of failure to conduct an open-secret ballot. On non-compliance with the time frame for the conduct of the election, the Respondent agreed with the Tribunal that this was not established on a preponderance of evidence. On the allegation that results were not recorded in electoral forms, the Tribunal found this not proved in view of Exhibits PE2- 2E, PE3 which are result sheets containing the self-same results the Appellants complained were not recorded. Again it applauded the Tribunal’s finding that, contrary to the claims of the Petitioners that party agents of other political parties, except the PDP, were driven away by thugs and security agents, the result sheets tendered by the Petitioners contained signatures of other political party agents other than that of the PDP. In respect of the finding of the Court that the election in Asa Local Government Area was not free and fair as the Petitioners’ agents there were prevented from serving, it was unable to determine the number of votes that would have been nullified as the results of the affected Polling Units were not tendered. The 2nd Respondent finally submitted that the Petitioners failed to lead credible evidence to show that any non-compliance with the provisions of the Electoral Act substantially affected the election. Haruna V. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 577.
On the alleged non-compliance with the provisions of the Electoral Act, the 3rd to the 32nd Respondents made submissions essentially identical to that made by the other Respondents. They submit that Section 50 (1) and (2) require that a voter be accredited by the Presiding officer, issued with a ballot paper upon being satisfied that the name of the voter is in the Voters’ Register and indicate in the Register that the person has voted. They contend that the provisions do not specify that voting has to be simultaneous with accreditation. The Respondents submit that their witnesses’ testimonies bore out the fact that the election was conducted by open-secret ballot and no witness testified that his election was by open-open ballot. RW4 in particular testified that the Presiding officers accredited voters one after the other while he ticked their names and the accreditation did not end at 10.00am. RW5 and RW7 testified that everyone who came out to vote that day, voted and no one was turned away. The Respondents submit that, even assuming there were minor issues of non-compliance, same is not enough to allege non-compliance. It must be shown by evidence that such non-compliance is not only substantial but that it also substantially affected the result of the elections. Agbaje V. Fashola (2008) 6 NWLR (pt. 1082) 90 at 133; Buhari V. Obasanjo (Supra). The Respondents therefore urged the Court to resolve this issue in favour of the Respondents.
From the Petition and the Appellants’ Brief of argument, the Appellants hinge the complaint of non-compliance with the provisions of the Electoral Act on the following:
i) Insufficiency of ballot papers Paragraph 13. 1 (iv) of the Petition;
ii) The election was conducted by ‘open-open’ ballot and not by open-secret ballot in contravention of Section 53 of the Electoral Act.
iii) Accreditation of Voters ended at 9.00am and only those accredited within that period were allowed to vote in contravention of Section 50 (1) and (2) of the Act.
To do justice to this issue, an examination of the evidence adduced by the Appellants in proof of the allegations 9f non-compliance with the Act pertaining to voting on Election Day is crucial and indispensable. In an attempt to prove the Petition, the Petitioners called 22 witnesses, 1st Petitioner inclusive. Of these, 12 were supervisors, most of whose evidence was based on hearsay, and 4 were party agents who could be described as eyewitnesses. Many of these witnesses in their statements on oath alleged that most of the Polling Units did not have sufficient ballot papers. However, it is instructive that none of them tendered the Voters’ Registers for the areas under their supervision or the Polling Units where they served as agents in order to establish the number of voters on the’ Register. It goes without saying that the sufficiency or otherwise of ballot papers is dependent upon a comparison of the ballot papers supplied with the number of voters on the Register. Where the Voters Register is not produced in Court, the bottom is knocked out from under the argument as there is no basis for comparison. An examination of the totality of the evidence of the witnesses shows that none of them explained how they arrived at the conclusion that the ballot papers supplied to the Polling Units were insufficient. It is for this reason that finds no reason to disturb the findings if the learned Judges of the Tribunal on this. The Tribunal correctly stated the position of the law thereon at page 718 of the transcribed record as follows:
“Much as it is conceded that the votes cast in any Polling Unit must not exceed the number of voters in the register of voters for that particular unit, it is however the law that the onus of establishing such facts lie on the Petitioners. It will only be discharged if the Petitioner through his witnesses is able to demonstrate before the Court, the discrepancies between the entries made in the result sheet in respect of a particular Polling Unit and the number of registered voters in the said unit. It is only were the number of voters exceed the number of registered voters contained in the voters’ Register that a court can come to the conclusion that there was over-voting.”
In this wise, the Register of voters or any authentic document showing the number of voters in the Unit, as well as the actual number of ballot papers supplied to the Unit, are imperatives for the proof of any non-compliance with the provisions of the Act. In the absence of the Voters’ Registers, it is evident that the Appellants were unable to discharge the burden of prod in this regard. No wonder the Tribunal found as it did at page 716 of the record that the Appellants failed to establish the allegations in paragraph 13.1 (iv) of the Petition. Being a finding of fact which has not been shown to be perverse, I decline to interfere with same.
The Appellants also complained that, contrary to Section 53 of the Act, the voting arrangement adopted was by open-open ballot instead of by open-secret ballot. Paragraph 13.1 (viii) of the Petition expatiates that voters were unable to vote by open secret ballot because they were openly intimidated by the 3rd, 32nd and 33rd Respondents in concert with the Military and Police Officers who stuffed already thumb printed ballot papers in favour of the 1st Respondent with her consent and/authority. This is a very grave allegation that is not only tinged by, but completely coloured with criminality. The Appellants were therefore required to prove this aspect beyond reasonable doubt. Once again, after very scrupulously examining the evidence, the Tribunal found that, contrary to such a weighty allegation, the Appellants failed to adduce any evidence by any of its witnesses to prove this. Besides, none of the witnesses before the Tribunal testified as to the procedure adopted in particular Polling Units which amounted to open-open ballot where they served as agents. It therefore once again found that the Appellants had failed to establish this non-compliance.
It is also one of the grounds of discontent by the Appellants that in most Polling Stations in the 4 Local Government Areas under the Senatorial District, election was concluded as early as 9.00am. See paragraph 13.1 of the Petition. The evidence adduced in support of this discloses that of the 22 witnesses, only PW2, PW3, PW16, PW17 and PW20 testified as to the time voting took place in their statements on oath. PW2 who was a supervisor however stated that voting was completed in the Polling Units where he supervised before 1.00 pm because he was informed by INEC officials that ballot papers were finished. As a supervisor, the witness did not name any of these officials who dished out this information to him for verification. Neither were the Voters Registers for those Units tendered to confirm whether the ballot papers indeed were exhausted for the simple reason that all the registered voters under that unit had cast their vote or for plain insufficiency. His evidence therefore falls short of the standard of proof required in such cases. The statement of the PW3 however comprises mostly of hearsay as he clearly testified of what he was told by persons unnamed. It is therefore largely worthless. PW16 and PW17 all testified that, as registered voters, they went to cast their votes on the date in question only to be turned back on the ground that the ballot papers were exhausted. Throughout the gamut of their evidence, there was nothing placed before the Tribunal which, established that they were indeed registered to vote at the said Polling Units nor were the Voters Registers for those Polling Units tendered to show that their names were contained therein. At best therefore, what their evidence could suggest is that, as at 10.00 am and 10.30am respectively when they variously sauntered into their Polling Units to vote, the number of voters registered to vote in those Units had been duly accredited and ballot papers issued to them since, by paragraph 2.4 of the Election Manual, Polls opened at 8.00am. The fact that there were no more ballot papers left to go round these witnesses could also be suggestive of the fact they were at the wrong Polling Unit or even that the ballot papers issued were insufficient. It is instructive that both witnesses testified under cross examination that they cannot read or write. The evidence before the Tribunal was therefore oblique, open-ended and subject to other rational possibilities and interpretations. Only additional evidence in the form of voters’ cards, voters’ registers, etc, could have served to dispel this haziness. Without any further evidence offered on this therefore, any conclusions drawn from the evidence of, these witnesses would amount to nothing but conjecture and speculation. That certainly is not within the realm of Courts of law or Tribunals for that matter. It is therefore entirely unwarranted for the Petitioners to draw conclusions from these ambivalent pieces of evidence that voting ended at 9.00am merely because ballot papers were exhausted.
Finally, while the evidence of PW20, if proved, is indictable if proved, it falls far below the standard of proof required in a court of law. He states that as an agent at L.G.E.S. School Agbeyangi Code 007 Polling Unit, he witnessed when AC Party members were turned away on the ground that ballot papers were exhausted. Yet, he alleges that, the Presiding Officer at the Polling Unit, who, to date remains unnamed, gave at least six ballot papers to each of the PDP’ members present. Under cross examination, the witness stated that there were two other INEC officers, Policemen, other security men and DPP agents present. However, none were named and none were called to testify. To make matters worse, the witness did not even deem it necessary to name some of the AC members whom he alleged were sent empty handed away. Since he was able to identify them as members of his Party, it is only fair to expect that he should know the names of some, if not all of them. In the absence of any flesh added to the bones of this bare allegation, it stands stark naked as it is bereft of the decency of being clothed in evidence to elevate it to the standard of proof acceptable in a court of law. I am therefore of the view that the evidence of this witness does not command belief. The Tribunal therefore acted quite rightly, in my view, when it consequently held that the allegation of non-compliance with the time frame for holding elections was not established. This was certainly not proved on evidence preponderating, being the standard set by law in civil matters. I again find no reason to disturb this finding of fact.
The law is that, for any non-compliance with the provisions of the Electoral Act to render an election invalid, same must be so great and substantial, and it must be such as to satisfy the Court or Tribunal that it affected or might have affected the majority of the voters or the result of the election. Amosun V. INEC (2007) ALL FWLR (pt. 391) 1712; Dada V. Dosunmu (2006) ALL FWLR (Pt. 343) 1605; (2006) 18 NWLR (pt. 1010) 134.
The general rule is that the onus is on the Appellants to prove that there were such malpractices and non-Compliance which prevented them from winning the election. Kudu V. Aliyu (1992) 2 NWLR (Pt. 231) 615 at 620. A Petitioner who alleges non-compliance with the Electoral Rules or Act and avers that such noncompliance was substantial, has the two-fold burden of proving and satisfying the Court, not only that the alleged non-compliance actually occurred, but also that it affected or might have affected the result of the election. It is evident that the allegations of non-compliance with the provisions of the Electoral Act were not proved. By Section 146 (1) of the Electoral Act” where an election is substantially conducted in accordance with the provisions of the Act, and any non-compliance does not substantially affect the result of the election, such election shall not be invalidated. Buhari V. Obasanjo (Supra). Therefore, even if non-compliance with some provisions were to be established, the Appellants have the added duty to show the effect on the over-all result of the election. Awolowo V. Shagari (1979) 6-9 SC 1. Certainly, the Appellants failed to do this. This issue is therefore answered in favour of the Respondents.
The distinction sought to be made by learned Counsel for the Appellants that there was non-compliance with the law on the voting procedure at the Polling Station and not non-compliance that affected the results is, with the greatest respect, a distinction without a difference. If there was non-compliance with the voting procedure as spelt out in Section 50 (1) & (2) and Section 53 of the Act, then, for such to lead to the invalidation of the election, same must be shown to have been substantial, and that it also substantially affected the results or outcome of the election. That is the state of the law on election matters as it stands today, and unless and until it is changed by any subsequent electoral reform, a petitioner is obliged to meet this onerous burden in his quest to question the validity of an election.
The doctrine of non-compliance Seeks to rescue an election from the jaws of irregularities which do not substantially affect the results of the election. To this end, Section 146 of the Act provides:
An election shall not be liable to be invalidated by reason of noncompliance 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 non-compliance did not affect substantially the result of the election.
The above rule was firmly applied in the case of Awolowo V. Shagari (1979) NSSC 87 where the Supreme Court was called upon to interpret the provisions of Section 34 (A)(1)(c)(ii) of the electoral Decree, 1977. Having heard arguments from the Petitioner on the fact that the said provision was not complied with, the Court stated thus:
“…there is no doubt that, even if we had found that there was noncompliance with the said provisions, we would have invoked the provisions of Section 111 subsection (1) of the Decree and held that the election which in the present con means the election to the office of the President, was conducted substantially in accordance with the provisions of Section 34 A (1) (c) (ii) which is within Part II of the Decree…”
In construing whether non-compliance to the section had affected the election, the Apex Court added thus:
“…there is no evidence that the non-compliance with Section 34 A (1) (c) (ii)… has affected the result i.e. but for the non-compliance, the petitioner would have won to enable the Tribunal declare the result invalid. For non-compliance to invalidate an election it must be shown that it affected the result of the election. Where there was a breach of rule or mistake at the polls and it did affect the result, then the election is vitiated. In this appeal, the petitioner has failed to satisfy the tribunal and the Supreme Court that the non-compliance has affected the results of the election or has prevented a majority of votes in his favour with effect and for that reason the appeal must fail.”
In the case now under review, the lower Tribunal found the allegations in paragraphs 13.1(iv) & (ix) of the Petition alleging insufficiency of ballot papers, voting by open-open ballot (as opposed to open-secret ballot) and close of polls by 9.00am with only those accredited within that period being allowed to vote (in contravention of Sections 50 (1) & (2) an 53 of the Act), not proved. (See page 716 of the records). Therefore, the question of any non-compliance on account of these alleged infractions affecting the result of the election does not arise. Since these findings of the Tribunal are borne out by the evidence before the Tribunal, I decline to interfere with same. Issue two is therefore answered in favour of the Respondents.
The final issue for consideration is whether the Tribunal failed to properly consider and evaluate the evidence of the Petitioners and their witnesses. The Appellants argue that, except for the evidence of the 1st Appellant, (the candidate herself), on matters related to her by her agents, supervisors and monitors, all other witnesses called by the Appellants gave direct evidence of what they experienced in the course of the election. Yet the Tribunal erroneously concluded that the evidence of the Appellants’ witnesses is hearsay. They therefore complain that the Tribunal consequently failed to ascribe due probative value to the evidence of the Appellants and their witnesses. They cite that the failure of the Tribunal to understand and ascribe due probative value and the rejection of the evidence of the PW2 and PW3 in particular, and the other Appellants witnesses in general, constituted a grave error which occasioned a miscarriage of justice. Onisaodu V. Elewuju (2006) 7 SC (Pt. II) 45 at 56. They argue that the evidence of the 1st Respondent which the Tribunal relied upon constituted hearsay evidence of RW8 and RW9 whose specimen signatures, Exhibits PE.E8 and PE.E9 show that they were not the makers of the statements on oath adopted by them. In addition they contend that the Tribunal failed to appreciate the evidence of the RW3, RW4, RW5, RW6 and RW7 which, from their standpoint, show that no election as prescribed by Section 50 (1) and (2) of the Electoral Act took place in majority of the Polling Units in the four Local Government Areas of the Kwara Central Senatorial District.
The Appellants concede that where criminal allegations are made, same must be proved beyond reasonable doubt. However, they do not make the point that such does not require proof beyond a shadow of doubt nor is it necessary to call a particular number of witnesses before the standard can be achieved. Usufu V State (2008) ALL FWLR (pt. 405) 1731 at 1734; Golden Dibie V. State (2007) 3 SC (pt. 1) 176 at 199. They submit further that from the direct credible evidence of the PW1 to PW21, the Appellants proved the criminal allegations contained in the Petition to the standard required by law. They also submit that the independent, non-criminal allegations in the Petition of non-compliance, irregularities and malpractices were similarly proved by the direct, credible cogent and unchallenged, evidence of the Appellants’ witnesses. The Appellants therefore prayed the Court to allow the Appeal.
The 1st Respondent took her perspective of this issue from the judicial definition of the evaluation of evidence as given by this Court in the case of Eleran V. Aderonpe (2008) 11 NWLR (pt, 1097) 50 at 70, and submits that it is a function of the none consideration of the evidence led by a party. That being the case, she argues that the Appellants cannot, in all good conscience; claim that the Tribunal did not consider their case at all. She submits that the Tribunal considered and properly evaluated the evidence offered by all the 22 witnesses called by the Appellants at pages 706 to 712 of the record. She drew strength from the decisions in Okino V. Obanibera (1999) 12 SCNJ 27 and Bashaya V. State (199B) 4 SCNJ 202 to submit that the evaluation and ascription of probative value to the evidence adduced by the parties is the primary duty of the trial Court and it is not proper for an appellate court to interfere, especially where the trial Tribunal did carry out this duty.
The 1st Respondent submits that the allegations contained in the Petition were essentially criminal in nature and on the authority of Ogu V. Ekweremadu (2006) 1 NWLR (pt. 961) 255 at 281 and Haruna V. Modibbo (Supra), such must be proved beyond reasonable doubt. Some of the ‘allegations in the Petition were over voting, stuffing of ballot boxes, illegal thumb printing, malpractices, thuggery and inducement. The Appellants however failed to meet this standard of proof. On the evidence of RW8 and RW9 and the Exhibits PE8 and PE9 dwelt upon by the Appellants as an example of the failure of the Tribunal to properly evaluate the evidence, the 1st Respondent disputed this. She asserts instead that the said exhibits were merely generated and dumped on the Tribunal with no effort made at linking the signatures to the statements on oath. Furthermore, the RWB, (at page 670 of the record), having denied that the signature on the result sheet shown to him was not his, left the Tribunal askance as to what they could have compared the signature obtained in Court with. Similarly in the case of the RW9, the signature was obtained ostensibly to compare with the statement on oath. In respect of the evidence of the PW2, whose statement on oath is at page 64, he denied under cross examination at page 532 that he did not know anything about Budo Egba, whereas in his statement on oath, the only place he mentioned is Budo Egba and not Ogbondoroko/reke. The 1st Respondent finally urged the Court to resolve this issue against the Appellants.
For the 2nd Respondent, it is submitted that the Tribunal reviewed the evidence of the Appellants’ witnesses at pages 706 to 712 of the record. It went on to consider the various allegations of non-compliance made by the Appellants, and that constituted evaluation of evidence. She urges this Court to hold that the Tribunal considered the evidence given on both sides and painstakingly appraised all the issues raised by the Appellants. She therefore submits that the allegation that the Tribunal did not evaluate the evidence is false and urged the Court to so hold. The Respondent therefore asked the Court to answer this issue in favour of the Respondents.
The 3rd to 32nd Respondents essentially recapped the submissions of the 1st Respondent and submitted that the Appellants’ case was considered and properly evaluated at pages 706 to 712 of the record. Indeed, their submissions are identical to that of the 1st Respondent on this issue therefore no useful purpose will be served in repeating them here.
It certainly cannot be true, as the Appellants would want this Court to believe, that all the witnesses called by the Appellants gave direct evidence of what they experienced in the course of the election. A careful analysis of the evidence of the witnesses and the findings of this Court (on issue number two) above certainly puts paid to this line of argument. Indeed, most of the witnesses who gave evidence left a lot to be desired by way of proof of the allegations to the standard acceptable by law. A lot of the evidence constituted hearsay evidence, and whatever evidence was not hearsay, did not meet the standard of proof, criminal or civil, as the case may be. This was especially more so when it came to the criminal allegations and the Tribunal did not mince words or shy away from saying so. The Tribunal unquestionably did not gloss over the evidence but did a good job of analyzing and evaluating same in arriving at its decision.
From pages 706 – 713 of the record, the Tribunal properly reviewed the evidence adduced through the Petitioners; witnesses as well as the evidence adduced via the Respondents’ witnesses. After undertaking such a painstaking and thorough review, it went ahead to evaluate the evidence so adduced in the light of all the allegations in the Petition. Thereafter, it made its findings in respect of the three issues identified for determination at pages 714 – 733. One instance of such an appraisal by the Tribunal is the consideration of issue number one at page 714 of the record. There, the Tribunal found that the Appellants, by failing to show the number of registered voters in each Polling Unit and the number of ballot papers supplied to each of those Units, were unable to prove the allegation of insufficiency of ballot papers. Again, at page 720 of the record, while considering, the allegation that AC agents posted to Afon Polling Units were intercepted at Ogbondoroko and later arrested by the Police, the Tribunal held that the allegation was established as the Respondents failed to counter the evidence of the PW1 on this. Hear the learned Judges:
”In paragraph 3 of his statement on oath which was adopted as his evidence before the Tribunal, the PW1 alleged that all the AC agents posted to Afon Polling Units 001-005, Ila Oja, … wards were interrupted at Ogbondoroko by thugs and were later arrested by the Police Afon Division and therefore deprived of performing their assigned functions as Polling agents for the Petitioners.
The Respondents have not in our humble view seriously countered the evidence of PW1 in relation to the above, particularly the arrest and detention of the agents of the Petitioners in the Polling units stated above. We therefore find as established that in Asa Local Government Area, Polling agents of the Petitioners were arrested by the Police on the Election Day and thereby unable to perform their official functions… We are of the view and we so hold that the election in the affected 36 Polling Units where the agents of the Petitioners were disallowed from performing their duties cannot be said to have been conducted in a free and fair manner. We are therefore prepared to declare the votes cast in favour of all the candidates in the said 36 Polling Units to be unlawful and therefore null and void …”
This decision could not have been reached without a proper evaluation of evidence. Yet again at pages 719 – 720 of the record, while considering the allegation that party agents for other parties were driven away from the Polling Units, the Tribunal, after reviewing the evidence of the parties and the exhibits tendered by the Appellants, found that the other party agents alleged to have been chased away, actually signed the result sheets tendered, by the Appellants. It is therefore quite apparent that the allegation that the Tribunal did not evaluate the evidence is unwarranted, hasty and without basis.
Going further, the Tribunal reviewed and evaluated the evidence of the PW8 who leveled serious allegations of corrupt malpractices against the 1st Respondent. The PW8 alleged that, upon being arrested by the Polite and bundled into a bus, she came face to face with the 1st Respondent who promptly attempted to induce her. The conflicting testimony of this witness in relation to her statement on oath and her evidence elicited under cross examination, created a doubt in, the minds of the learned Judges as to veracity of her evidence. After due appraisal, they found themselves quite unable to rely on her evidence. I take the view that they cannot be faulted on this finding.
Yet again, at pages 724 – 727 of the record, the learned Judges devoted sufficient time and energy to the consideration of the allegations of violence, thuggery, snatching of ballot boxes and other electoral materials, stuffing of ballot boxes with already thumb printed ballot papers by thugs acting in concert with law enforcement agents. These are offences under Sections 125, 135 and 138 of the Electoral Act which, of necessity, need to be proved beyond reasonable doubt. See Section 138 (1) of the Evidence Act. Undeniably, a proceeding initiated by an Election Petition is a civil proceeding in which the burden of proof is on, a balance of probabilities. However, where allegations of a crime are made therein, the standard of proof required to prove them is what would obtain in a criminal proceeding, i.e. proof beyond reasonable doubt and no more on a balance of probabilities. Boni Haruna V. Modibbo (2006) 2 EPR 664.
That is not all. The law is also settled that where an allegation of election malpractices or corrupt practices are committed, the party alleging same must show that the alleged malpractices or corrupt practices were committed in favour of the person against whom they were alleged, with his knowledge or with the knowledge or consent of a person acting under his general or special authority with respect to the election. Adediji V. Kolawole (2006) 2 EPR 70; Oyegun V. Igbinedion (1992) 2 NWLR (Pt. 226) 747. Thuggery and disruption of election are criminal acts. Following in the steps of the decided authorities on the point, in order for these criminal acts to have any effect on the result of the election, it must be proved that they were perpetuated by the 1st Respondent or by someone authorized by her. Nnachi V. Ibom (2004) 1 EPR 786; Balami V. Bwala (1993) 1 NWLR (Pt. 267) 55 at 65. After due evaluation of these grave allegations, the Tribunal found that the Petitioners failed to establish the sundry criminal allegations in the Petition. In sifting through the evidence adduced through the PW4, PW6, PW7, PW8, PW13 and others, the Tribunal found thus at page 725 of the record:
“However, under cross examination, none of the witnesses of the Petitioners including the 1st Petitioner as PW22 was able to pin or trace any of the alleged acts of thuggery, violence or stuffing of ballot boxes directly on the 1st Respondent as required by law as no witness of the Petitioners was able to give evidence pointing to the legally acceptable nexus which must exist between the alleged perpetrators of the acts of thuggery and violence and ballot box stuffing and the 1st Respondent.”
It must be borne in mind that the evaluation of evidence and the ascription of probative value to such evidence are the primary function of the trial court which saw, heard and assessed the witnesses.
Where a trial court evaluates the evidence before it and makes definite findings of fact which are fully supported by evidence and such findings are not perverse, it is not within the province of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal ought to do is simply to find out whether there is evidence on which the trial court arrived at its findings and that there is no misapprehension of the facts. Once there is such evidence on record, the appellate court cannot interfere. Fagbenro V. Arobabi (2006) 7 NWLR (Pt. 978) 172; Nnachi V. Ibom (Supra); Gaji V. Paye (2003) 12 MJSC 76. In view of all the above, I decline to interfere with the express findings of fact of the Court of trial which was availed the opportunity of seeing and hearing the witnesses first-hand, especially where the Petitioner has failed to show that these findings were perverse.
Finally, the Appellants have complained that the learned Judges of the Tribunal failed to appreciate the evidence of the RW3, RW4, RW5, RW6 and RW7 which, they allege, tend to show that no elections took place as prescribed by Section 50 (1) & (2) and 53 of the Electoral Act. However, from a perusal of the evidence before the Tribunal and its findings at pages 725 – 726 of the record, the submission is not entirely accurate. RWs 3 – 7 were all Polling Agents and/or supervisors of the 1st Respondent on the day of election. Their evidence mainly comprised of the manner of accreditation and voting by eligible voters on the day of election, as well as the general conduct of the election. An examination of their evidence reveals that, of these witnesses, only the RW3 and RW5 categorically testified that accreditation of voters started at 8.00am and ended at 10.00am. RW 4 positively stated that accreditation did not end at 10.00am. RW5, a PDP coordinator who visited about 70 Polling Units on the day of election, testified that, while in some of the Polling Units visited, accreditation ended at 10.00am, in others accreditation went on beyond that time and he was quite unable to say when accreditation ended. RW6, a PDP supervisor or monitoring agent, testified that, on the day of election, everybody was allowed to vote and that he did not receive any report of inadequate supply of voting materials. RW7, a PDP supervisor, also visited 34 Polling Units. He did not receive any report of insufficiency of election materials neither did he witness any registered voter being turned away and not being allowed to vote. While election started at 10.00am, accreditation started at 8.00am. Now, with regard to the evidence of RW3 and RW5, the fact that there may have been instances of failure to comply very strictly with the timeframe for accreditation of voters in a few Polling Units, cannot without more, lead to the overwhelming and overriding conclusion that there was no election. The law has always been that non-compliance that would affect an election has to be substantial and must be shown to have substantially affected the results. This was not established by the evidence adduced before the Tribunal.
In addition, during the course of the proceedings, the signatures of RW8 and RW9 were obtained in Court, ostensibly for comparison with the signatures on the Statements on oath ascribed to them. Learned Counsel for the Appellants has alleged that a comparison of the signatures reveal that the said witnesses were “impersonators” and so their evidence should be disregarded. This disparagement by the Appellants is equally directed to the portion of the testimonies of a minority of these witnesses which show that, at some of the Polling Stations where they performed their duties, accreditation took place variously from 8.00 to 10.00am or 11.00am, and thereafter voting started. From the record of the Court, I find that the Tribunal neither glossed over these pieces of evidence nor did it sweep them under the carpet. Instead, it addressed them head-on in its Judgment at pages 728 – 729 of the record where it said:
“The evidence of RW9 (sic) and RW10 (sic) which is being attacked in the address of counsel to the Petitioners are in relation to the events on two Polling Units. It is to be noted that the result of the election from these two Polling Units was never tendered by the Petitioners. Even where this Tribunal holds the view that the inconsistencies (if any) in the signatures of the RW9 and RW10 are enough consideration for the nullification of the results from the said Polling Units, the non-tendering of the results of the said Units by the petitioners makes it impossible to identify how many votes scored by the Petitioner and other contestants in the said Units are to be pronounced null and void. The same reasoning applies to the evidence of the RW3 and RW4 in the face of failure of the Petitioners to tender the results of the Units to which the evidence of RW3 and RW4 relates. See Gamba V. INEC (1993) 1 NWLR (Pt. 267) 94.”
With the greatest respect to the Appellants, while I also harbour some reservations with regard to the approach adopted by the Tribunal, this finding is pragmatic and does reflect the reality on the ground. In the absence of the results from these Polling Units, any finding made thereon invalidating the votes emanating from those few Polling Units cannot be translated into action as there was simply no evidence before it as to the number of votes cast for the various Parties in those Polling Units complained of.
The Appellants have also submitted that the Tribunal acted wrongly in accepting the evidence of the RW8 and RW9 who were proven ‘impersonators’. In respect of the RW8 and RW9, the record discloses that their signatures, which were obtained during the course of proceedings, were for the sole purpose of testing the veracity of their written statements on oath. This was the express purpose for which the specimen signatures were tendered. Since both the statements on oath and the specimen signatures were before the Court, I am of the view that it was a simple thing for the Tribunal to have made a visual comparison of the signatures on both and then made its findings thereon one way or the other. From pages 669 and 671 of the record, the signatures were not tendered in order to discredit or impugn the integrity of the results from the Polling Units. I therefore find that by failing to undertake this exercise which was basically aimed at impugning the credibility of the two witnesses, the Tribunal fell into error. Nevertheless, we must not lose sight of the fact that the allegation of impersonation carries with it the imputation of a crime. Therefore, the Appellants were obliged to have adduced evidence to prove’ same beyond reasonable doubt, which is the standard of proof in criminal cases. That such evidence is conspicuous by its absence, puts paid to whatever weight may have been attached to the saga of the signatures.
On the whole and based on all the above findings, I resolve this issue in favour of the Respondents. I find that the Tribunal did undertake a proper consideration and evaluation of the evidence of the Petitioners and their witnesses before coming to its decision.
In the result, having resolved all three issues against the Appellants, this Appeal is lacking in merit. It ought to fail. The Appeal is accordingly dismissed. The Judgment of the Tribunal, delivered on 2nd June, 2008, dismissing the Petition is affirmed.
Each party will bear its own costs.
Other Citations: (2009)LCN/3127(CA)
