Chief Emmanuel Okechukwu & Anor V. Chief Princewill Chima Onyegbu & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
It is trite that the 2nd Respondent had on 14/4/2007 conducted election for membership in to the Atria State House of Assembly. The 3rd – 118th Respondents were the officers particularly charged by the 2nd Respondent to conduct the said election for Bende South State Constituency. Both the 1st Appellant and 1st Respondent had contested the election under the platforms of the People Democratic Party, (PDP), the 2nd Appellant and Progressive Peoples Alliance (PPA). A part from the 1st Appellant and 1st Respondent, five other candidates namely: Irogbu Felix, Barr. Uche Ogbonnaya, Egum N. Emmanuel, and Olu Moris I. Nnenna, had also contested the election in question under the platforms of the Action Alliance (AA), Action Congress (AC), All Nigeria Peoples Party (ANPP), and All Progressives Grand Alliance (APGA), respectively. At the conclusion of the said election, the 1st Respondent was declared and returned as the winner thereof, with a total of 6942 votes. A total of 2557 votes were credited to the 1st Respondent to clinch the second position in the race.
The results of the election did not however go down well with both Appellants. They accordingly filed a joint petition on 14/5/07 against the Respondents in the Governorship And Legislative House Election Tribunal, holden at Umuahia, Abia State, thereby praying for the following reliefs:
(a) That the 1st Respondent (Chief Princewill Chima Onyugbu) was not duly elected or duly returned by the 2nd – 5th Respondents
(b) That the 1st Respondent Chief Princewill Chima Onyugbu) did not score majority of the lawful valid votes cast in the election, and therefore ought not to have been declared elected or returned by the 2nd – 5th Respondents.
(c) That it may be determined by the Honourable Tribunal that the 1st petitioner was duly and validly elected by majority of the valid lawful votes cast in the election and therefore ought to have been returned as duly elected by the 2nd – 5th Respondents
(d) An order declaring the 1st Petitioner as valid and duly elected or returned having scored majority of the lawful valid votes cast at the election.
(e) Alternatively that the election of April 14, 2007 as regards Bende South Constituency be nullified and bye-election conducted by the 2nd Respondent.
At the end of the trial of the petition, the lower tribunal, corum Abdullahi Yusuf, J; (Chairman) C.L.O. Idahosa, A.L. Lawan, Sybil Nwaka, and Adulphus Enebeli, JJ; delivered a judgment on 10/01/2008, to the effect, inter alia, thus:
From the foregoing, therefore, the inevitable conclusion this Tribunal comes to is that the 1st petitioner did not score the majority of lawful votes did not prove falsification of results or over voting, the petitioners did not show that there was substantial non-compliance with the Electoral Act as to nullify the election in the Bende South Constituency.
This Tribunal cannot therefore invoke section 146(1) of the Electoral Act. This petition fails and is accordingly dismissed. No order as to cost. See page 809 of the record.
Dissatisfied with the judgment in question, the Appellants filed a notice or appeal (dated 30/01/08) on 31/01/08 in the lower tribunal’s registry. The notice of appeal was predicated upon a total of eight grounds of appeal, thereby praying this court to – “Set aside the decision of the Tribunal and grant the prayers contained in the Petition of the Appellants.”
It is rather instructive that parties had filed and served their respective briefs of argument. The Appellants’ briefs in particular was filed on 28/4/08 by Nwabu M. Nwosu Esq. Two issues distilled from the eight grounds of appeal were formulated therein, to wit- 2.1 Whether in the circumstances, the Tribunal was under a duty to apply the provisions of the Manual for Election officials, 2007 (Exhibit AK) and whether its failure did not occasioned (sic) a miscarriage (sic) (GROUNDS 1, 2, 3 and 6).
2.2 Whether the trial Tribunal had a duty (sic) evaluate the statements of results and other documents tendered, and admitted in evidence at the trial, including collating the results in order to determine as between the petitioners and the 1st Respondents who scored majority of lawful votes at the election. (GROUNDS 4, 5, 7 and 8).
On his part, the 1st Respondent’s brief was filed on 19/5/08 by M.U. Uzoma Esq. A total of three issues have been raised therein as follows:
- Whether the petitioners proved the allegation of corrupt practices and falsification of result to warrant turning round the result of election declared in favour of the 1st Respondent by the 2nd Respondent.
- Whether there was substantial compliance in the conduct of the election in Bende South State Constituency.
- Whether by the documentary evidence places before this Honourable court, the 1st Respondent won the majority of the lawful votes last at the election in Bende South State Constituency.
The 2nd – 118th Respondents’ brief was equally filed on 19/4/08 by S, Nwigboke Esq; and C.N. Nwokorie Esq. of Dr. JN. Ijiomah & Associates chambers. In addition to a preliminary objection, two issues have been raised in the said brief, to the effect thus-
- Whether the tribunal from the circumstances of the case, the pleadings and evidence under a duty to apply the provisions of the manual for election officials 2007.
- Whether the tribunal did not evaluate the documentary evidence tendered by parties before coming to the conclusion that the 1st Respondent scored majority of the lawful votes cast at the afore said election.
Two reply briefs have also been filed on 26/5/08 and, 30/5/08 by the Appellants’ counsel to the respective briefs of 1st Respondent and 2nd – 118th Respondents.
PRELIMINARY OBJECTION:
It is pertinent that the- 2nd – 118th Respondents, counsel has raised at page 2-4 of the brief thereof a preliminary objection to which the Appellants, counsel has responded at pages 2 – 3 of the brief thereof. I will first and foremost deal with the said preliminary objection before proceeding to determine the issues, if necessary. It is axiomatic that fundamental objective of a preliminary objection within the purview of order 10 of the Court of Appeal Rules 2007, is to bring to an end the hearing or determination of the appeal upon the merits thereof. Thus, in the event of the preliminary objection succeeding, the appeal is liable to be terminated or dismissed at that stage, as there would no longer be any need for the court to proceed to determine the issues rose therein on the merits. See UBN V. SOGUNRO (2006) 16 NWLR (part 1006) 304 at 521 – 522; GOJI V. EWETE (2001) 15 NWLR (part 736) 273 at 280 OKOI V. BLAG (2002) 10 NWLR (PART 776) 455 AT 468.
The argument of the learned counsel on the preliminary objection is to the effect, inter alia, that grounds No.1 (of the grounds of appeal) is incompetent, so also issue No.1 to which it relates. The grounds upon which the preliminary objection is predicated are that-
(a) Both ground 1 and issue No. 1 raise new issues which were not canvassed at the lower tribunal.
(b) No leave of this court was obtained before raising the new issues.
(c) The provisions of Exhibit AK, the Election Manual raised neither highlighted nor was evidence led thereupon pleaded.
(d) That issue No. 1 relates to only to the allegedly incompetent ground No. 1 in which does not relate to grounds 2, 3, & 6. That the said grounds 2, 3, & 6 should be deemed abandoned.
(e) That, No issue was joined by parties on Exhibit AK, thus should not be considered by the court.
(f) That, both ground No. 1 and issue No 1 do not relate to any issue ratio decided in the judgment of the lower tribunal.
The case of AKINTARO V. ECGUNGBOHUN (2007) 9 NWLR (part 1038) 103 at 114; NGIGE V. OBI (2006) 18 WRN 13 AT 150 & 170; 238, respectively thereby urging upon the court to accordingly strike out issue No. 1 for being incompetent.
The submission of the Appellants’ counsel in reply to the preliminary objection is, inter alia, to the effect that the objection is misconceived in law. It was argued that the facts relating to the applicability of the manual for election officials 2007 were adequately pleaded by the Appellants and evidence led through the Record; the petitioners address at pages 733-755 of the Record. The court has been urged to accordingly dismiss the preliminary objection.
Having critically considered the submissions of the learned counsel on the preliminary objection vis-a-vis the record of appeal as a whole, I am unable to appreciate, let alone uphold, the 2nd – 118th Respondents counsel’s contention that ground No.1 of the grounds of appeal and issue No. 1 of the Appellants’ brief raised fresh issue therein. Most undoubtedly, the issue regarding the election” manual (Exhibit AK) could not properly be said to be a fresh issue. It was indeed an issue that has so far been joined by the parties in their pleadings. Most particularly, the issue of election manual was raised in paragraph 20 of the petitioners’ affidavit at page 178 of the Reply, as well as in paragraph 12 of the petitioners’ Reply to the 2nd – 118th Respondents Reply, at page 193 of the Record, respectively. See also pages 733 – 755 of the Record regarding the petitioners’ address.
Thus, I have no hesitation whatsoever in upholding the submission of the Appellants’ learned counsel that the preliminary objection is misconceived, and same is hereby overruled and dismissed.
The submission of the Appellants’ counsel in the brief thereof is to the effect, inter alia, that the Manual for 2007 election (Exhibit AK) is a subsidiary legislation by virtue of section 161 of the Electoral Act, 2006. As such it can be called in aid even if it was not tendered in evidence. See EZE ADUKWA V. MADUKA (19971) 1 NWLR (part 516) 655 at 669 paragraphs G – H; 671 paragraphs D – E; ADUDA V. OKAFOR (2004) 1, 2 WRN 102 at 125; AJADI V. AJIBOLA (2004) 76 NWLR (part 898) 91 at 170 paragraphs E – F.
Reference was made to pages 2 & 3 of Exhibit AK, chapters 1.2.1, & 1.2.5 respectively to the effect that presiding officers are deemed to have been trained to conduct the step by step procedures spelt out therein in chapter 4.2 at page 29 i.e. counting of votes.
It was contended that for the statement of result (Form EC8A (1) to be valid, it must pass the validity test provided in chapter 4.2 & 4.3 of Exhibit AK. That, any defect or non compliance therewith renders any result void or invalid. See S. 64(3), Electoral Act, 2006; BLACKS’ LAW DICTIONARY, 8TH EDITION at page 678 for the determination of form.
It was alleged that the number of votes recorded as cast have exceeded the number of ballot papers officially issued. See ADUDA V. OKAFOR (supra) at 125. That, the lower tribunal misdirected itself and thus reached a wrong conclusion by narrowly viewing the meaning of section 54 of the Electoral Act 2006 which is in pari materia with section of the Electoral Act 11007 considered in ADUDA’s case (supra).
It was argued that the electoral process was infiltrated by total strangers who were not appointed by INEC pursuant to section 30 of the Electoral Act, 2006. See Exhibit Q – Q25 i.e. certified list of presiding offices who conducted the election. By the date of certification thereof, it was shown that Exhibit Q – Q25 was certified long after the election. That, the Respondents are estopped from denying the names of the presiding officers who conducted the election.
See NGIGE V. OBI (2006) 14 NWLR (part 999) 1 at 197.
That, some of the forms EC8A (1) were not signed by presiding officers as such no probative value should be attached to such documents even if admitted. See OMEGA BANK PLC V. OBC LTD. 21 NSQR 771 at 799; AG KWARA STATE V. ALAO (2000) 9 NWLR (part 671) 84 at 104.
The alleged multiple use of forms EC8A (1) was also alluded to, which was said to be irregular and unlawful, and that any result so produced is tainted and ought to be invalidated. Exhibits QQ7 & QQ8 (J3 & J8) were said to have been written with two different Form EC8A (1) for the same polling station. See NWOLE V. IWUAGWU (2005) 15 NWLR (part 9- 52) 543 at 571; Section 163 of the Electoral Act, 2006.
It was finally submitted on this issue that the lower tribunal was in error in not invalidating the result Forms which did not comply with the mandatory provisions of the Electoral Act, and manual. The court was urged to accordingly resolve issue No.1 in the Appellants’ favour.
On his part, the 1st Respondent’s counsel submitted in the brief thereof on issue No.1 that the Appellants’ call on the court to interfere with the findings of the ower tribunal that were not appealed against is non sequator.
See OPARA V. D.S NIG. LTD (2005) 15 NWLR (part 1002) 342 at 368 paragraphs A – B; INEC V. RAY (2004) 14 NWLR (part 892) 92 at 122 paragraphs G – H.
It was argued that since the specific findings of the lower tribunal were not challenged by any ground of appeal, all the arguments founded thereupon purporting to challenge the correctness of those findings constitute procedural recklessness and an abuse of the process of the court and ought to be discountenanced.
According to the learned counsel, the 1st Appellant neither pleaded the particulars of the inflated figures nor led evidence in that regard. That; the petitioners deliberately engaged in false algebraic and arithmetical expression to distort the true facts. See ADETONA V. EDETH (2004) 16 NWLR (part 899) 338 at 360 – 361 paragraphs H-A.
That, pages 22 to 38 of the petitioners’ brief were devoted on analyzing what was called” tainted results and a homay” through the chart. That at page 22 of the brief column 1 of the chart regarding Bende Ward the name “ABGA” was used instead of “APGA”. That, it was not demonstrated by any credible evidence how the name “ABGA” instead of “APGA” affected the result of the election in Unit 018. See BUHARI V. INEC (2008) 4 NWLR (part 1078) 545 at 658-659.
It was further submitted that (i) by section 45(2) of the Electoral Act, 2006, ballot papers are to be bound in booklets however no evidence on whether ballot used as stated in the chart was bound in booklet and the number of copies in each. (ii) No sample of ballot paper was tendered in proof ballot papers used, unused, spoilt or rejected. Those, the petitioners can not rely on the fact that of giving notice produce on 2nd – 118th Respondents ballot papers. See BUHARI V. OBASANJO (2005) 13 NWLR (part 941) 1 at 236 paragraphs A-D. (iii) That, the chart and remarks on ballot papers, unused, spoiled or rejected, does not constitute evidence of over voting as to void result of an election. See section 54(1) & (2) Electoral Act, 2006. Exhibit AK chapter 4.2 step 6; AJADI V. AJIBOLA (2004) 16 NWLR (part 898) 91 at 183 paragraphs A -B; AWUSE V. ODILI (2005) 15 NWLR (part 952) 416 at 491 paragraphs D – E; HARUNA V. MODIBBO (2004) 16 NWLR (part 900) 487 at 594 paragraph 4; NJIOKWUEMENI V. OCHEI (2004)15 NWLR (part 895) 196 at 232 paragraphs A-B.
It was finally argued, that no evidence was led by the Appellants through out the trial at the lower tribunal on how the acts of the persons whose names were allegedly not contained in the list of presiding officers affected the conduct of the election, neither did they give evidence that the said persons acted without the authority of INEC in the conduct of the election. The court was urged to accordingly resolve the 1st Respondent’s issue No. 1 in the negative.
On their own part, the 2nd – 118th Respondents submitted in the brief thereof on issue No.1, that the Appellants did not at the trial prove that the election or returning of the 1st Respondent did not comply with the provision of the manual (Exhibit AK) for 2002 election. See BUHARI V. INEC (2008) 4 NWLR (part 1078) 546 at 629; AWUSE V. ODILI (2005) 16 NWLR (part 952) 416 at 491 paragraph D-E; HARUNA V. MODIBBO (2004) 16 NWLR (part 900) 487 at 594 paragraph H.
It was argued that Exhibit Q-Q25 contains only the list of presiding officers and do not contain the list of poll clerks who also participated in the election. See section 62(5) of the Electoral Act, 2006 thus:
“In the absence of the presiding officer the poll clerk shall enjoy and exercise all the powers of the presiding officer in respect of a polling station or unit.”
That, no credible evidence was led to show that some of the result sheets were signed by persons other than INEC ad-hoc-staff. That, the said allegation is criminal in nature and must be proved beyond reasonable doubt. See OMOBORIOWO V. ATASIN (1984) 1 SCNLR 108 at 111; section 138(1) of the Evidence Act.
That some form EC8A (1) did not have names of presiding officer, those facts were not pleaded and go to no issue. See BUHARI V. INEC (2008) 4 NWLR (part 1078) 545 at 629.
It was likewise urged that the form EC8B (1) (Exhibit F) at pages 653 – 655 of the record from UZUAKOLI WARD reveal that the result sheets bearing same serial numbers were used in entering votes scored by each candidate in the polling unit. See page 808 of the record.
It was finally submitted on the issue, that apart from the fact that the alleged irregularity in the election were not pleaded, the Appellants failed to prove any irregularities in the entire election or how the irregularities affected the outcome of the election. The court was accordingly urged to resolve issue No.1. against the Appellants and dismiss same.
Replying to issue No.1 raised in the 1st Respondent’s brief, the Appellants’ counsel submitted that issue contravenes order 17 Rule 4(2) of the Court of Appeal Rules, 2007. See OLAWORE V. OLANREWAJU (1998) 1 NWLR (part 534) 436 at 453 454- That, a respondent who has not filed a cross-appeal or notice is not permitted to formulate issues for determination with out reference to the grounds filed. EZE V. FRN (1987) 1 NWLR (part 51) 506 521-522; OKPALA V. IBEME (1980) 2 NWLR 9 part 102) 208 at 220.
It was thus contended that the consequence of an incompetent issue is that it ought to be struck out. ADAH V. ADAH (2001) 14 WRN 74 at 8-82 lines 40 – 15; ANIMASHAUN V. UNIV TEACHING HOSPITAL (1996) 10 NWLR (part 476) 65 at 79.
Replying to the 2nd – 118th Respondents brief on issue No.1 the Appellants counsel submitted, inter alia, that Exhibit AK (manual) is a subsidiary legislation, therefore [serves as] a reference point for review under section 69(c) of the -Electoral Act, 2006 and no more. See KINGIBE V. MAINA (2004) FWLR (part 191) 1555 at 1589. That, the case of OMOBORIOWO V. AJASIN (1984) SCNLR 10 at 111 relied upon by the 2nd – 118th Respondents does not apply in the [present] circumstances as argued.
That, it’s the responsibility of the court to give effect to laws. See KLIFCO NIG. LTD V. NIG. SOCIAL INSURANCE FUND MANAGEMENT BOARD at 456 (2005) 6 NWLR (part 922) 445 at 456. That, the argument of the 2nd – 118th Respondents is tantamount to asking the court not to give effect to the law, thus it ought to be discountenanced.
I have amply considered the submissions of the learned counsel in the respective briefs of argument thereof vis-a-vis the record of appeal as a whole.
Having carefully albeit critically, considered the various issues formulated in the respective briefs of the learned counsel, I am of the view that they (issues) are not mutually exclusive. I have accordingly deemed it most appropriate to determine the present appeal upon the two issues, mutatis mutandi, raised in the Appellants’ brief. It is noted however that issue No.1 of the Appellants has apparently raised two questions which should be more conveniently tackled separately. Thus, issue No. 1 like the proverbial amoeba, has to metamorphose in to two. The following three issues thus call for determination.
- Whether the lower tribunal was under duty to apply the provisions of the Manual for Election Officials, 2007 (Exhibit AK)? If Yes;
- Whether lower tribunal had failed to apply the said Manual (Exhibit AK) resulting a miscarriage of justice to the Appellants
- Whether the lower tribunal was under a duty to and did actually evaluate the statement of results and other documents tendered and admitted in evidence at the trial to determine whether it was the 1st Appellant or the 1st Respondent who actually scored the majority of votes at the said election?
ON ISSUE NO.1
It is evident that the Manual for Election Officials, 2007 was tendered and admitted as exhibit AK in the course of the trial of the petition in the lower tribunal. The said manual (Exhibit AK) was published pursuant to the provisions of section 161 of the Electoral Act, 2006 which provides thus:
“161. The commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for this administration thereof.”
By virtue of the enabling provisions of section 161 of the Electoral Act, 2006 (supra), the manual for Election officials, 2007 (Exhibit AK) has undoubtedly become a subsidiary legislation thereof which can be resorted to by the lower tribunal in the course of the proceedings thereof. It then goes without saying; that the lower tribunal can in its own motion resort to the said manual (Exhibit AK) even if it was not tendered by the parties in evidence. See EZEADUKWA V. MADUKA (1997) 8 NWLR (part 16) 655 at 669 paragraphs G – H; 671 paragraphs D – E; ADUDA V. OKAFOR (2004) 12 WRN 102 at 125; AJADI v. AJIBOLA (2004)16 NWLR (part 898) 91 at 170 paragraphs. E-F Thus, in view of the provisions of section 761 of the Electoral Act, 2006 vis-a-vis the eloquent authorities referred to above, it has become rather indisputable that the Manual for Election Officials, 2007 (Exhibit AK) was published by INEC for the fundamental objective of giving effect to the provisions of the Electoral Act 2006. The guidelines as contained in the Manual (Exhibit AK) are undoubtedly meant to be strictly construed and adhered to by the electoral officials concerned in the process and procedure for elections. The Manual (Exhibit AK) being a subsidiary legislation, duly published pursuant to section 161 of the Electoral Act 2006 (supra), the lower tribunal has a duty to uphold and apply same. The answer to issue No.1 is undoubtedly in the affirmative, and same is hereby resolved in the Appellants’ favour.
ON ISSUE NO. 2:
Issue No. 2, as alluded to above, raises the question as to whether or not the lower tribunal had failed to apply the provisions of the manual (Exhibit AK) thus resulting in a miscarriage of justice to the Appellants. An allusion was made by the Appellants’ learned counsel in the brief thereof, to Exhibit AK, especially chapters 1.2.1 & 1.2.5 at pages 2 & 3 regarding the duties of the supervisory presiding officers, presiding officers, poll clerks and poll Assistants, respectively. It is contended, that an accurate account for the ballot papers is the only means by which it could be ensured that no invalid vote infiltrates the decision of voters. The gravamen of the Appellants, complaint in the instant issue is that the lower tribunal was in error for not invalidating the result forms that did not comply with the mandatory provisions of the Electoral Act, 2006 and the Manual 2007 made pursuant thereto. However, most unfortunately for the Appellants, the mere tendering of Exhibit AK in evidence without more, does not, ipso facto, amount to proving the alleged infraction of the provisions thereof. It behoves upon the Appellants not only to highlight the provisions thereof, but also to prove the specific conducts or omissions of the election officials that contravene the provisions of the said Manual (Exhibit AK).
The Appellants have failed both, in the pleadings and evidence thereof, to show the instances of the alleged irregularities in the result sheets. It is a fundamental and well settled principle that proof of an irregularity of conduct of an election can not be established by merely looking at an exhibit tendered and admitted in the course of trial of the petition. See BUHARI V. INEC (2008) 4 NWLR (part 078) 546 at 629. Wherein it was held by this court per Fabiyi, JCA thus:
Proof of this averment can not be established by looking at the documentary exhibits tendered… more so, documents apart from what they contain can not speak, and however higerious and brilliant a counsel’s address might be, it can not be a substitute for evidence or pleadings.
The Appellants ought to have led evidence before the lower tribunal to Prove over voting i.e. by showing that the total votes cast at the election had exceeded the number of accredited voters or number of registered voters. It must be reiterated, for the avoidance of doubt that one of the far reaching and fundamental means by which over voting could be proved is by tendering the voters register. Undoubtedly, it would be extremely difficult to prove over voting without putting in evidence the voting register of the polling unit ward, or constituency in question. Alas, in the instant case, it is rather an undeniable fact that the Appellants had not put in evidence the voting register in question.
As alluded to above, the consequence of failure to produce a voters’ register in proof of the allegation of over voting is that the lower tribunal, nay this court, has been deprived of the golden opportunity of first hand assessment of the extent of over-voting alleged by the Appellants. See section 54 of the Electoral Act, 2006, thus:
54(7) No voter shall vote for more than one candidate or record more than one vote in favour of any candidate at any one election.
(2) Where the votes cast at an election in constituency or polling station exceeds the number of registered voters in that constituency or polling station shall be declared null and void by the commission and another election shall be conducted at a date to be fixed by the Commission.
(3) Where an election is nullified in accordance with subsection (2) of this section, there shall be no return for the election until another poll has taken place in the affected area.
(4) Notwithstanding the provisions of subsections (2) and (3) of this section the Commission may, is satisfied that the result of the election will not substantially be affected by voting in the area where the election is cancelled, direct that a Return of the election be made.
By virtue of the provisions of section 54(1) – (a) of the Electoral Act, 2006 (supra), it has become rather obvious that over-voting becomes apparent where more votes are recorded than the number of registered voters in a given polling unit, ward or constituency. The provision has in an unequivocal term prohibited the act of over-voting to the extent that it has accorded INEC with unfettered power to declare as null and void the election for any constituency or polling station where over-voting is established and accordingly order for another election at a date to be fixed by the commission.
It may be reiterated that section 54(2) of the Electoral Act, 2006 (supra) is one of the few instances in which the commission (INEC) is imbibed with the unfettered power under the Act to cancel and/or postpone an election. One of such notable instances is provided under section 27 of the Electoral Act as follows:
27.(1) Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies. The Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election.
(2) Where an election is postponed under this Act on or after the last date for the delivery of nomination papers, and a poll has to be taken between the candidates then nominated, the Electoral officer shall, on a new date being appointed for the election, proceed as if the date appointed were the date for the taking of the poll between the candidates.
(3) Where the Commission appoints a substituted date in accordance with subsections (1) and (2) of this section, there shall be no return for the election until polling has taken place in the area or areas affected.
(4) Notwithstanding the provision of subsection (3) of this section, the Commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made.
(5) The decision of the Commission under subsection (4) may be challenged by any of the contestants at a Court of Law or Tribunal of competent jurisdiction and on such challenge, the decision shall be suspended until the matter is determined.
See also the recently decided case of BARRISTER SULLIVAN IHEANACHO CHIME & ANOR V. BARRISTER OKEY EZEA &. ORS in the Consolidated Appeal Nos. CA/E/EPT/19/2008 & CA/E/EPT/19A/2008 judgment delivered on 11/7/2008 (unreported), wherein this court held, inter all, per SAULAWA, JCA, thus:
The trite fundamental rule is that a court of law or tribunal as the case may be, is duty bound to confine its findings strictly within the ambit of the evidence adduced vis-a-vis issues formulated by parties before it. See Ngige V. Obi (2006) 14 NWLR (1999) 1 at 226; Ekpenyongs v. Nyong (1975) 2SC 79.
Of course, the fact that there was evidence of late arrival of voting materials in some polling booths is not in doubt. That was, as a matter of fact what must have led to the cancellation or postponement of election in four of the seventeen Local Government Areas in Enugu State. The rest of the four Local Governments where voting was rescheduled to 28/4/2007 comprised Udi, Isi-Uzo, Enugu south and Nsukka Local Government Areas, respectively. See pages 605 of volume 3 of the record wherein lower tribunal stated thus:
That another election was fixed for Udi, Isi-Uzo, Enugu South and Nsukka Local Government Areas on 28th April 2007. The same scenario as that of 14/4/2007 was reported as there were diversion of electoral materials no result sheet and illegal writing of result.
In the light of the above postulations, there is every reason for me to hold that if the INEC had not rescheduled the election on 14/4/2007 in four of the seventeen Local Government Areas of Enugu State in question to 28/4/08, the departure of the electoral materials from CBN behind schedule could have led to the disenfranchisement of a majority of voters in the election”
In Chime’s case (supra), the lamentation of this court over the hydra-headed election monster known as rigging or over voting was re-echoed in no uncertain terms thus:
Before putting the final dot upon this judgment, I have deemed it expedient to reiterate that rigging or over voting has from the time immemorial been a cause for concern all over the world especially in the so called third world or developing countries (or underdeveloped countries, so to say). It is indeed a very serious and highly lamentable election malpractice. It is a most shameful and degrading act that ought to be condemned in all its ramifications by all well meaning and patriotic citizens, and non- citizens of this country a-like. As emphatically lamented by Aderemi, JCA (as he then was) in AYOTUNDE V. OLUKORODE -ARE & ORS (1993) 3 NWLR (part 595) 496 thus:
“Rigging or over voting is a serious malpractice … It is an illegal act. And no persons involved in any form of immoral or illegal act or transaction shall be allowed to come to court to seek a redress. No polluted hand shall touch the pure foundation of justice. See also NGWU V. MBA (1999) 3 NWLR (part 595) 400 at 409 per Fabiyi, JCA. Most, undoubtedly, the above lamentation as expressed by “his Lordship Aderemi, JCA (as he then was) has clearly indicated the extent of frustration, if not desperation, to which judicial officers all over the country have been subjected since the attainment of independence in 1960, forty Eight (48) years ago.
It is trite that over-voting as alluded to above can only be perpetrated where the total numbers of voters cast in a polling unit exceed the total number of registered voters for that polling unit. It must be reiterated that polling units are the foundation upon which the pyramid of the election process are built. Thus, in order to prove over voting, a petitioner, as in the instant case the Appellant, must not only tender the results collated by the Returning Officers, but also the results of the votes duly counted by the presiding officers of the polling units. This is so, because the scores credited to or entered in the result sheets at the polling booths form the very basis of the collation thereof. See AWUSE V. ODILI (supra) at 307 per Salami, JCA; HARUNA V. MODIBBO (2004)16 NWLR (part 900) 487 at 594 paragraph H per Ogbuagu, JCA (as he then was).
It is instructive that the Appellants have alluded in the brief thereof, to taint and anomaly vides the chart they drew for themselves. At page 22 of the Appellant’s brief in particular, a reference was made to Bende Ward code O/A- UKPOM village Hall wherein (result) the name “ABGA” appeared instead of “APGA”. The learned counsel, not surprisingly, called for the invalidation of that result. Ironically, however, no reasonable or satisfactory evidence was adduced to show how the typographical error or printers devil in question seriously affect the entire result of that unit. In my view, that typographical error is too trivial as to substantially affect the result of that polling. See BUHARI V. INEC (2008) 4 NWLR (part 1078) 546 at 558- 659 paragraph, A – D.
Secondly in column 2 of the chart in question, regarding code 002A, code 006, column 2, code 007A; column 4 code 009; column 5, code O/04, allegations of similarity of serial numbers or ballot paper’s or result sheets allegedly used in the election’ In my considered view, although it’s most desirable that each and every ballot paper or result sheet for the election should bear distinct serial numbers, the non similarity of serialization of ballot paper or result sheets with out any evidence of fraud is not sufficient to presume that they were fraudulently procured. See BUHARI V. INEC (supra) at 632-633 paragraphs H-G.
Thirdly, it has also been alleged that the electoral Processes were infiltrated by total strangers. It is evident that exhibit Q-Q25 contained only the list of presiding officers, as the list of the pool clerks who also participated in the said election had been detached from the whole set at the instance of the Appellants themselves. It is therefore rather preposterous for the Appellants to now allege that any person whose name is not contained in exhibit Q-Q25 must have acted unlawfully. They have no right to approbate and reprobate at the same time; they can not eat their cake and have it.
What is more, it is trite that by virtue of section 62 (5) of the Electoral Act, 2006, a poll clerk, in the absence of a presiding officer, is accorded all the powers of the latter regarding a polling station or unit. Undoubtedly, under the law, the Appellants had the duty of leading creditable evidence to show that some of the result sheets were signed by persons other than the credited INEC staff. That, they failed to do, especially by failing to confront the RW6, the electoral officer, with the allegation under Cross-Examination.
I think, there is a need to once again reiterate that the act of engaging non-credited INEC adhoc staff for the conduct of the election is undoubtedly a criminal allegation within the contemplation of the law, thus it must be proved beyond reasonable doubt. See section 138 (1) of the Evidence – OMOBORIOWO V. AJASIN (supra) at 111; BUHARI V. INEC (2008) 4 NWLR (part 1078) 546.
One other equally very serious allegation is regarding some forms EC8A (1) which were said did not contain the names of presiding officers; were either not signed, stamped or dated. See BUHARI V. INEC (supra) at 629.
The provision of section 64 (1) of the Electoral Act, 2006 is to the effect that a presiding officer shall after counting the votes cast at the polling station or unit enter such votes scored by each candidate in form duly prescribed by INEC, as the case may be. At page 808 of the record, the lower tribunal made copious reference to result sheets. The serial members of which were discovered to have been duplicated. Most interestingly, such result sheets were used in entering the votes scored by each candidate in the polling units, without any exception or discrimination. Thus, the Appellants having equally benefited from the alleged irregularity is estopped from complaining there against.
It’s a trite principle that mere allegation of non-compliance with electoral process is not sufficient to void the result of an election. There must be a cogent evidence to show that the alleged non-compliance has substantially affected the out come thereof. See BUHARI V. INEC (supra) at 662 held thus:
Wrong form used for result deals with form and not substance besides the fact that the litany of defects alleged were not pleaded, the petitioners have failed to show how same affected the out come of the election. To this extent, the defect pinpointed does not help the case of the petitioners.
Thus, in a nutshell, in view of the above postulated highlights, there is every reason to hold that the answer to second issue is in the negative and same is accordingly hereby resolved in favour of the Respondents against the Appellants.
ON ISSUE NO. 3:
The issue No. 3 raises the question of whether the lower tribunal was duly bound to and did evaluate the statements of results tendered and admitted in evidence at the trial to determine whether it was the 1st Appellant or the 1st Respondent who actually scored the majority of votes at the said election. Without much ado, the contention of the Appellants’ learned counsel was that the tribunal did not carry out this exercise. He thus urged upon this court to invoke the power thereof under section 16 of the court of Appeal Act to carry out the exercise the lower tribunal failed to do, and accordingly make the relevant declarations sought. See NNAJI V. AGBO (2006) 2 EPR 867 at 893; ATANDA V. AJANI (1989) 3 NWLR (part 111) 511; OGBU V. NNAJI (1999) 4 NWLR (part 597) (sic); ABIBO V. TAMUNO (1999) 4 NWLR (part 599) 334; UKPE V. THE STATE (2001) 18 WRN 84 at 113 lines 20 -30.
It was submitted that the evaluation of the statements of result, form EC8A (1), does not invoke credibility of witnesses and this court is in as good a position as the lower tribunal to do so. Reference was made to some agents copies of form EC8A (1), as well as certified true copies issued by INEC forms EC8B (1) (Exhibit F – pages 653 – 655 of the Record), respectively regarding UZUAKOLI WARD. It was contended that Uzuakoli Ward result was not put in issue by the parties, as it was not disputed by the 1st Respondent. See paragraph 15 of the First Schedule to the Electoral Act 2006; HASSAN V. TAMU (1990) 10 NWLR (part 624) 700 at 712 paragraphs A – B. That, the validity of the entire result of Uzuakoli Ward can not be challenged.
The learned counsel to the Appellants also alluded to the list of presiding officers who had responsibility to conduct the election exercise tendered in evidence (pages 656 – 657 of the record) thus:
(1) Bende Ward – 18 Units Exhibits G -G17
(2) Itumbauzo Ward – 14 Units – Exhibit H – H13
(3) Ozuitem Ward – Units Exhibits J – J10.
(4) Umuhu/Ezechi Ward -8 Units – Exhibits K-K7
(5) Umuimenyi/Nkpa Ward 8 Units – Exhibits L7.
Various result forms EC8B (1) – Exhibits M – M5 EC8C (1) & EC8E (1) – Exhibits M & P; Exhibits Q-Q25; Exhibits NN, PP, QQ, RR & SS series were also alluded to.
It was further submitted by the Appellants learned counsel thus: 4.16 my lords, the trial tribunal was invited to collate the election result based on the valid and lawful votes cast. That is such votes that met al the statutory requirements of validity but if failed to so or even to make a finding on it before concluding that the 1st Respondent had a majority of lawful votes. See page 20 of the brief.
The cases of UBA V. THE STATE (1992) 1 NWLR (part 215) 7 at 16; TANGALE TRADITIONAL COUNCIL V. FAWU (2001)17 NWLR (part 742) 293; 330; AKINGIBE V. MAINA (2004) FWLR (part 191) 1555 at 1589, were cited and relied upon by the Applicant’s counsel urging upon us to examine, scrutinize and assess the exhibits in question, and accordingly attach the necessary weight thereto.
Pages 22 to 38 of the Appellants’ brief contain various tabulations or charts depicting polling stations, code numbers thereof serial numbers, scores & remarks vis-a-vis analytical deductions and remarks. Pages 37 & 38 of the said brief, especially paragraph 4.36 at page 37 to paragraph 4.38 at page 38, contain the summary of the said analytical deductions thus:
4.36 The various ward results summaries were collated into Exhibit Y, which is the Constituency summary of Ward Results Form EC8C (1). The various scores credited the PDP and PPA respectively is as follows:-
BENDE PDP 326 PPA 1022
ITUMBAUZO 527 2615
OZUITEM 151 348
UMUKU/EZECHI 190 698
UMUIMENYI/NKPA 322 1433
UZUAKOLI 1041 830
TOTAL 2557 6946
Minus Total Tainted
votes 1230 4703
Sub-Total 1336 2219
4.38. When the wrongfully excluded votes in Umuimenyi/Nkpa and Ozuitem Ward are added to the scores above the final scores will then be thus:
PDP-1336+1676 = 3,013 PPA-221+479=2,698
The learned counsel finally urged on the court to resolve the said issue, in favour of the Appellants.
On his Part, the 1st Respondent’s learned counsel has submitted on the issue, inter alia, that the law relating to electoral matters is that there is rebuttal presumption of law that the result of any election declared by the electoral body is correct and authentic, and the onus is on the person who denies its correctness and authenticity to rebut the presumption. See NWOBODO V. ONO (1994) 1 SCNLR 1 at 32; HASHIDU V. GOJE (2003) 15 NWLR (part 843) 352 at 386 – 387 paragraphs H – B.
The various election results for Bende South State Constituency tendered and admitted vide 2nd-118th Respondents were referred to at Pages 26 – 27 alluded by the 1st Respondent’s counsel. The election results in question were Exhibit, (1) AA, AA1 – AA11 & AJ & AJ1, (2) EXH. BB, – BB1 – BB7 & AH & AH1; (3) EXH. CC, CC1-CC12; (4) Exh. DD, DD1-DD7 (5) Exh. EE, EE1 – EE 15; (6) Exh. FF, FF1 – FF9; (7) Exh. GG, GG1 – GG5; (8) Exh.; & (9) Exh. JJ, respectively.
The exhibits also said to have been tendered and admitted vide the 2nd – 118th Respondents’ RW6 are as follows: (1) Exhibits AH AH1; (2) Exh. AJ & AJ1, respectively.
It was submitted that the exhibits tendered vide the 2nd -118th Respondents are presumed as genuine and authentic having emanated from the field in Bende South Constituency. See NWOBODO V. ONOH (supra) at 32.
The other exhibits said to have been tendered through the RW4 include – (1) Exh. AD a written statement on oath; (2) forms EC8A (1) EC8B (1), EC8C (1) & EC8E (1): (i) Exh. RR1-R9 (ii) S, S1-S12; (iii) T, T1-T14; (iv) U, U1-U9; (v) V, V1-V11; (vi) W, W1 – W7; (vii) X, X1 – X5; (viii) Y; & (ix) Z, (x) AF; and (xi) BE, respectively.
It was submitted that exhibits A, A1 A7, BB1, C, DD1 – D9, EE1 – E11 & F alleged to have been brought vide the Appellants’ agents stand on their own, and are at variance with the results tendered by the 1st Respondent and 2nd – 118th Respondents. That, the said exhibits obtained from the Appellants agents are also at variance with the result certified by INEC and tendered through the PW1 (1st Appellant). Thus it was contended that where a Party tenders a document in court and it’s admitted as an exhibit, such a party will at the end of the litigation either sail joyfully with it in a boat of victory, or sink sorrowfully with it in a boat of defeat. See ONWUDINJO V. DIMOBI (2006) 1 NWLR (Part 9610 318 at 337 -338 paragraphs H – B; AG ENUGU STATE V. AVOP PLC (1995) 6 NWLR (part 399) 90 at120 – 121.
It was argued that the exhibit in question having not been proved to be part of the results returned by INEC, the presumption in favour of the 2nd – 118th Respondents exhibits AA-AA1- AA11, AJ & AJ1, BB, BB1 – BB7 AH & AH1, CC, CC1 – CC12, DD, DD1 – DD7, EE, EE1-EE15, FF, FF1-FF9, GG, GG1 – GG5, HH & JJ as being genuine, correct it and authentic was not rebutted by the Appellants. Secondly, the Appellants had failed to tender the documents from the security agents and observer groups pleaded in paragraph 26 of the petition. See Section 149(d) of the Evidence Act. Thirdly, that the RW6, the Electoral Officer for Bende Constituency, was never cross-examined or discredited by the Appellant’s counsel regarding the results tendered by INEC. Fourthly, that when the Appellants’ exhibits AA1 – A7, BB1, C, D, D1-D9, E, E1-E11 & F are therefore considered in line with the 2nd – 118th Respondents’ exhibits AA, AA1 – AA11, AJ & AJ1, BB, BB1 – BB7, AH & AH1, CC, CC1 – CC12, DD, DD1 -DD7, EE1 – EE15, FF, FA – FF9, GG, GG, GG1-GG5, HH & JJ the Appellants did not win the majority of lawful votes cast at the said election, but rather it was the 1st Respondent that won the majority of lawful votes cast, and ought to thus be returned as the winner of the lawful votes at the election in Bende South State Constituency.
On the other hand the 2nd – 118th Respondents’ learned counsel has submitted in the brief thereof that in electoral matters, there is a presumption of law that the result of any election declared by the electoral body is correct and authentic. The onus is on the person who denies its correctness and authenticity to rebut it. See HASHIDU V. GOJE (supra) at 386 – 387 paragraphs H – B. Reference was made to the election results for the six wards in Bende south state Constituency for the April 14th 2004 election that were admitted as follows (i) Exhibits AA, AA1 – AA11, AJ & AJI1; (ii) BB, BB1-BB7, AH & AH1; (iii) CC, CC1 – CC12; (iv) DD, DD1 – DD7; (v) EE, EE1 -EE15; (vi) FF, FF1 – FF9 (vii) GG, GG1-GG5; (viii) HH; and (ix) JJ, respectively.
It was likewise submitted that from the entire exhibits and unit results tendered before the lower tribunal, the 1st Respondent scored 6,946 (Six Thousand, Nine Hundred and Fourty six votes to beat the 1st Appellant (to the second position) who lost the election with a distant score of 2,557 votes.
It was further contended, that the 2nd – 118th Respondent did not object to the summary result for Uzuakoli Ward form EC8B (1) exhibit, F because it accords with the authentic result declared by the 2nd Respondent. That, the onus is on the Appellants to rebut the presumption of the authenticity of those results, which they allegedly failed to do so. That, the Appellants never cross examined or discredited RW6, the electoral officer for Bende South State Constituency. That the lower tribunal did evaluate the results tendered by both parties before coming to an irresistible conclusion that the Appellants failed to prove their case. That, the results from parts of Umuimenyi/Nkpa and Ozuitem were cancelled by the Electoral officer/returning officer (RW1) because of violence and high jacking of ballot boxes by a member of PDP.
That, this piece of evidence corroborated by RW6 was never contradicted by the Appellants. That, the Appellants did not plead wrongful exclusion of results. That, they also failed to tender the documents pleaded in paragraph 26 of the petition. See section 149(d) of the Evidence Act. The allegation of collation of invalid or tainted votes contained in the chart incorporated at pages 22, 23, 24, 25 & 27 of the Appellants’ brief is not supported by any evidence. The chart incorporated in both the petition and the Appellants’ brief was not tendered in evidence, it is therefore deemed abandoned and can not be relied upon.
It was also argued that no evidence on over voting was led. That over-voting can not be proved in the absence of the Register of voter. See AWUSE V. ODILI (supra) 416.
That, the Appellants’ case is contradictory for alleging three different scores which they purportedly scored in on election. (i) That in the petition at page 16 of the Record it was alleged that PDP scored 4,367 while the 1st Respondent scored 2648 votes; (ii) In the written address, at page 739 of the Record, it was alleged that they (PDP) scored 3,168 votes as, against the 1370 scored by the 1st Respondent (iii) In the Appellants’ brief at pages 38, it was alleged that they scored 3,013 (votes), while the 1st Respondent scored 2698 votes.
It was contended that it’s not for the court to choose and pick which result to believe. That, where a court is faced with such contradictory averment and evidence, the appropriate thing to do is to regard it as unreliable and to dismiss the Appellants’ case as lacking in merit. See EGBA V. APPAH (2005) 10 NWLR (part 934) 469. The court has been urged to resolve issue No. 2 against the Appellants and dismiss the appeal.
I think, in view of my findings in issue No.1 above, it may appear rather academic to ventilate upon the present issue. One of the far reaching findings on issue No. 2 is that in the absence of the voters Register, it would be difficult, if not impossible, to determine the Appellants’ allegation of over voting. See AWUSE V. ODILI (supra) at 308, wherein this court held per Salami, JCA; thus:
The consequence of non-production of the voters register in evidence is that this court like the tribunal before it can not assess the extent of over voting canvassed by the learned senior counsel for appellant as over voting envisaged in the con of section 44(2) of the Electoral Act No, 4 of 2002 which is in pari materia with section 52 (2) of the Electoral Act 2006) will only be established if the total cotes cast exceed the number of registered voter in a polling unit or station.
The finding of the lower tribunal on this vexed issue of over voting could be found in the judgment thereof at page 807 of the Record thus:
We return to the issue of over voting. The law is that in order to prove over voting the petitioner must establish that the votes cast at the election exceeds the number of voters in the Register of voters. It requires the production of the Register of voters as the basis of determination. See the case of AWUSE V. ODILI & ORS … Per Salami JCA…
This Tribunal had adverted to the petitioners address and that of the 1st Respondent, more particularly the 1st Respondents reply on points of law on this issue as summerised earlier on it this judgment. There is no attempt to prove over voting by the petitioners. The chart at pages 11 – 18 of petitioner’s counsel address and the remarks thereon is not evidence of over voting known to law. There is no Register of voters produced and tendered by petitioners to match the polling unit result to establish over voting.
Undoubtedly, I can not agree more with the above findings of the lower tribunal.
The learned counsel to the Appellants has in the brief thereof, at Pages 21 & 22 paragraph 4.20 cited and relied upon the notorious case of KINGIBE V. MAINA (2004) FWLR (part 191) 1555 at 1589, wherein this court held, inter alia, per Bulkachuwa, JCA thus:
The learned senior Advocate has urged us to adopt the reasoning in Terab V. Lawal (1992) 3 NWLR (part 231) 569 on the conclusive nature of Form EC8A in an election and in the instant can on Exhibits S- 38 where at page 592 therefore (sic) Akawu JCA-says:
But one must bear in mind the nature of form EC8A and EC8B as espoused in Decree No.50 of 1997; The 2 Forms show the polling station, the code number, the ward, the Local Government area they related to. They are statutory forms and when tendered give full and conclusive information needed for a polling unit. A petitioner who tendered therein the proceedings has by so tendering them given all the relevant evidence which is discoverable from the Forms… the forms themselves copy bold information to the polling unit which they relates. They can therefore be easily linked with particular areas and fact pleaded.
The learned counsel then proceeded to present a chart, from paragraphs 4-21 at page 21 to page 38 of the brief thereof, containing various analytical deductions regarding the results of the election in (i) Bende (ii) Ozuitem, (iii) Umuezechi, (iv) Umuimenyi/Nkpa, (v) Uzuakoli and (vi) Itumbannzo wards in question. The summary of the analytical deductions drawn from the chart in question be found at pages 37 paragraph 4.36 and 38 paragraphs 4.38 of the Appellants’ brief thus:
4.36 The various ward results summaries were collated into Exhibit Y, which is the constituency summary of ward Results – Form EC8C (1).
4.37 The various scores credited the PDP und PPA respectively are as follows:
BENDE PDP 326 PPA 1022
ITUMBAUZO 527 2615
OZUITEM 151 348
UMUKU/EZECHI 190 698
UMUIMENYI/NKPA 322 1433
UZUAKOLI 1041 830
TOTAL 2557 6946
Minus Total Taunted
votes 1230 4703
Sub-Total 1336 2219
4.38. When the wrongfully excluded votes in Umuimenyi/Nkpa and Ozuiten Wards are added to the scores above the final scores will then be thus:
PDP – 1336 + 1676 PPA- 2219 – 47
= 3,013 = 2,698
4.39 we urge your lordship to resolve this issue in favour of the Appellant.
As it would appear, the findings of the lower tribunal on this issue could be found at pages 807 to 808 of the Record thus:
This Tribunal has equally considered the allegations of concealment, entry of wrong figure, omissions or misquotations raised at page 2 paragraphs 3-5 of 1st Respondents reply on points of law against the petitioners charts as depicted on Pages 11 – 18 of the address of petitioners counsel in their attempt to establish over voting and other, alleged improprieties. We have scrutinized the said chart vis-a-vis all the relevant exhibits (Forms EC8AS) used in the chart in order to verify (sic) of the allegation.
We confirm the truth of the allegations concerning code numbers 016, 024 and 026 on pages 16 – 17 of petitioners address. In that chart in Amaechukeu village hall units 016 results, exhibits L4… (PDP) has 28 votes but 1-09 was written. In Amaohoro… unit 024, exhibit L2, Progressive Peoples Alliance has 78 votes but no mention of it was made in the charts. In Ugwu Nkpa town hall unit 026 exhibit L, PPA has 191 votes but no result was entered in the chart. However, the allegations concerning code 070 in paragraph 3 and omission of Uzuakoli ward in paragraphs 4 of the reply are found not to be true.
These apart, the Tribunal on its own discovered other duplication of serial numbers in Uzuakoli ward in the said chart for codes numbers 001, 002, 003, 004, 005, 006, 007, 008, 009, 010, 011, 012, 013, 014, 015 and 016 and our impression or conclusion in that eight (8) result sheets were used for sixteen (16) units comprised in code numbers 001 – 016 in Uzuakoli ward. Even so, or even in the face of those alleged him properties or non compliance or alleged over voting which, by the petitioners own showing is a total of 708 votes, the petitioners still have to prove that those factors will have a significant effect on the declared result of the election…
We … uphold the submission therein to the effect that when the 708 alleged excesses votes are removed from the 6,946 votes credited to 1st Respondent an the declaration of Results as in exhibit JJ tendered by … (INEC) or exhibit 2 tendered by 1st Respondent or exhibit p tendered by petitioners, then the 1st Respondent would still win the election with a distant vote of 6238 as against 2557 votes scored by the 1st petitioner.
From the foregoing therefore, the inevitable conclusion this Tribunal comes to is that the 1st petition did not prove falsification of results or over voting the petitioner did not show that there was substantial non-compliance with the Electoral Act as to null the election in the Bende South Constituency.
This Tribunal can not therefore invoke section 146(1) of the Electoral Act. This petition fails and is accordingly dismissed no order as to cost.
In view of the above far reaching findings of the lower tribunal, the allegation of the Appellants, in the brief there of that the tribunal had not properly evaluated the evidence (documentary and oral) adduced by the parties at the trial was most uncharitable, to say the least. It is a well established fundamental principle that the burden of proof of electoral malpractices lies upon the party who alleges same.
In the instant case, the Appellants have made series of allegations of electoral malpractices of over voting, falsification of result, etc which by nature constitute electoral offences under the Electoral Act 2006. Section 130 (4), (5) & (6) of the Electoral Act 2006 provide as follows:
(4) Any person who announces or publishes an election knowing same to be false or which is at variance with the signed certificate of return commits an offence and is liable on conviction to 36 months imprisonment.
(5) Any returning officer or collation officers who delivers or causes to be delivered a false certificate of return knowing same to be false to the commission or state independent Electoral commission, commits an offence and is liable on conviction to maximum imprisonment for 3 years without an option of fine.
(6) Any person who delivers or causes to be delivered a false certificate of a return knowing same to be false to any news media commits an offence and is liable on conviction to imprisonment for 3 Years.
The above provision of the Electoral Act regarding falsification of result is a very serious offence. Undoubtedly, the standard if proof thereof is that of proof beyond reasonable doubt. See section 138(1) of the Evidence Act which provides that –
138 (1) If the commission of a crime by a party to any proceeding is directly in issue in proceeding civil or criminal, it must be proved beyond reasonable doubt. See OJI V. NDU (1993)1 NWLR (part 268) 235 at 243; NWOBODO V. ONOH (1984) 1 SCNLR 1; TERAB V. LAWAN (1992) 3 NWLR (part 231)
It is also a trite fundamental principle, that in order to establish or prove an allegation of falsification of election result, it’s required that there should be tendered and admitted the trial at least two sets of results, one of which could be stigmatised as genuine and the other as false. See ETUK V. ISEMIN (1994) 4 NWLR (part 234) 402 at 414; SABIYA V. TUKUR & ORS (1983) 11 SC 109; WALI V. BAFARAWA (2005) (part 249) 1863; AWUSE V. ODILI (2004) ALL FWLR (part 261) 248; (2004) 8 NWLR (part 876) 481; OJO V. ESOHI & ORS (1999) 5 NWLR (part 603) 444 at 452 – 453; EBOH V. OGUJIOFOR (1999) 3 NW (part 595) 419, respectively.
In the case of EBOH V. OGUJIOFOR (supra) in particular, it was held, inter alia, at 423 – 424 by this court thus:
“The allegation of incident of fraudulent acts, falsifications, mutilations and cancellation of election result is criminal in nature of which the evidence required in proof of such allegations must be clear and unequivocal.”
Regarding the allegation of over voting, an allusion was made herein above to the provision of section 54 of the Electoral Act 2005 to the effect, inter alia, that-
54(1) No voter shall vote for more than one candidate or record more than one vote in favour of any candidate at any one election.
(2) Where the votes cast at an election in constituency or polling station exceeds the number of registered voters in that constituency or polling station shall be declared null and void by the commission and another election shall be conducted at a date to be fixed by the Commission.
(3) Where an election is nullified in accordance with subsection (2) of this section, there shall be no return for the election until another poll has taken place in the affected area.
There is no gainsaying the fact that, over voting is apparent where more votes are recorded than the number of registered voters in a constituency or polling station. Over-voting is a prohibited electoral malpractice by virtue of section 54 of the Electoral Act 2006. However, proof of over voting is riddled with all sorts of problems. See AWUSE V. ODILI (supra) at 304 – 305. The onus of proof of over voting would be discharged, where a petitioner amply demonstrates that more votes them [registered] number of electorate were cast at the polling unit level of the election. That is to say, over voting can only occur in a situation where the total of votes cast exceeds the total number of registered number of voters (electorate). See AWUSE V. ODILI (supra) at 305.
In the instant case, the cases of UBA V. THE STATE (1993) 1 NWLR (part 215) 7 at 16; TANGALE TRADITIONAL COUNCIL V. FAWU (2001) 17 NWLR (part 742) 293 at 330; and KINGIBE V. MAINA (2004) FWLR (part 191) 1555 at 1589 were cited and relied upon by the Appellants to the effect that documents once admitted must be considered and evaluated and commented upon. I have accorded an ample consideration upon the facts and principles of the authorities in question. In the case of KINGIBE (supra) in particular, the case, of TERAB V. LAWAN (supra) was cited with approval by Bulkachuwa. JCA to the effect, inter alia that a petitioner who tendered election results, has by so doing given all the relevant evidence which is discoverable from the result sheets (exhibits).
I think, there is a need to reiterate that, the application of the principle in question in KINGIBE’S and TERAB’S cases (supra) is not absolute in every given case; as it depends on the circumstances surrounding each particular case. In TERAB’s case for instance, it was observed by Aikawa JCA (of blessed memory) at page 588 paragraphs A – B thus:
As I said earlier the accreditation of voters and the actual voting are only the extreme signposts for determining whether malpractice has accrued. In between these extreme signposts is the situation where votes cast exceed the number of accredited voters on the que.
In the later case of HARUNA V. MODIBBO (2004) 16 NWLR (part 900) 487 at 543, the witnesses called by the petitioners/cross-Appellants, particularly PW8, PW11 & PW12 gave evidence of alterations, cancellations and mutilation of forms EC8A. The tribunal thus held the “votes null and void because of sundry irregularities and failures to comply with the provisions of the Electoral Act.” Upon an appeal to this court it held, inter alia, at page 54 paragraphs C – D per Aderemi, JCA that-
There is no evidence before the lower tribunal in conformity with the provision to section 91(1)(b) as set out supra so as to excuse the absence the makers of forms EC8A from coming to give evidence before the tribunal. No evidence that they were ever put on subpoena. Not having satisfied the above provisions of the Evidence Act, which to me authenticate the principles of fair hearing I make bold to say, that the testimonies of these witnesses relating to Forms EC8A and such other documents which came under the provision of section 91 are very much lacking in evidence value.
In the instant case, it is rather obvious that the voters register for the wards or constituency in question was never tendered in evidence by the Appellants or any of the parties for that matter at the trial of the petition. The election results were mostly tendered through the Bar, or in some cases through the RW1 & RW6, the makers of the said result sheets. The 1st Appellant and six other witnesses testified for the Appellants at the trial.
It’s instructive, that at page 24 of the Record, the Appellants listed documents to be relied upon in the petition. One of such documents was the summary or computation of election results for Bende South State Constituency contained at pages 25 – 33 of the Record. It was this same summary or computation of election results that was incorporated in the Appellants’ brief, especially at pages 22-38 thereof. Ironically, no sufficient evidence vide the presiding officers or polling clerks, the makers thereof adduced to establish or prove the veracity or authenticity of the various figures entered in the election results in question in compliance with the provision of section 91 (1) of the Evidence Act. It is a well settled fundamental principle of evidence, that in any civil proceeding requiring the admission of a direct oral evidence, any statement (which includes entry in election results as an in the instant case) made by a person in a document and tending to establish that fact shall, on production of the original thereof, be admissible as evidence of the fact if the maker thereof either -(a) had or was supposed to have had a personal knowledge of the matters dealt with by the statement; and
(b) If the maker of the Statement is called as a witness in the proceedings,
However, section 91(1) has a proviso to the effect that-
The condition the maker of the statement shall be called as a witness need not be satisfied if he is dead or unfit by reason of his bodily or mental condition to attend as a witness or if he is beyond the seas and it is not reasonably practicable to secure his attendance or if all reasonable efforts to find him have been made without success.
In the instant case, there is no reasonable evidence before the lower tribunal to explain the absence of the makers of the various election results, especially those admitted as exhibits from Bar at the instance of the Appellants. Consequently, the analytical deductions or remarks as contained in the chart incorporated in both the petition and the Appellants brief of argument at pages 22- 38 thereof lack any substantial evidential value. See NIG. GEN INSURANCE CO. LTD V. EMOH (1990) 3 NWLR (part. 138) 314; SEIDU V. AG LAGOS STATE (1986) 2 NWLR (part 21) (165); OJUKWU V. MIL. GOV. LAGOS STATE (1985) 2 NWLR (part 10) 806; HARUNA V. MODIBBO (supra) at 544 – 545 paragraphs G – E.
In the present circumstances, there is every reason to appreciate and uphold the fact that the lower tribunal had admirably painstakingly evaluated, closely examined, and accordingly made some-observations or comments upon the various figures vis-a-vis the remarks made thereon in the chart in question. By so doing, the lower tribunal could be said to have been rightly guided by the principles enunciated by this court in (i) UBA V. THE STATE (supra) (ii) TANGALE TRADITIONAL COUNCIL V. FAWU (supra); (iii) KINGIBE V. MAINA; (supra); and (iv) TERAB V. LAWAN (supra) respectively.
In my considered view, the fact that a court or tribunal is bound to closely examine, evaluate, and comment, or make observation, upon a document admitted as an exhibit in the course of trial of a case, does not necessarily mean or imply, the extent of the weight to be attached thereto.
This proposition is most undoubtedly predicated on the fundamental principle, that in estimating the weight, if any, to be attached to an admissible or admitted documentary evidence, regard shall be had to all the circumstances from which any inference can reasonably be drawn regarding the accuracy, or otherwise, of the document, and most particularly to the question of whether or not the document was made contemporaneously with the occurrence or existence of the facts stated therein, and to the question whether or not the maker thereof had any motive to conceal or misrepresent facts. See section 92(1) of the Evidence Act (supra).
It is evident from the record, that in the course of the determination of the petition, the lower tribunal had held, inter alia, at page 809 of the Record thus:
We are not persuaded by the submissions of the petitioners counsel this score. We agree entirely with the submissions of learned counsel for the 1st respondents (sic) on this issue. We specifically refer to paragraphs 33-35 of the 1st Respondents counsel’s reply on points of law and uphold the submission therein to the effect that when the 708 alleged excess votes are removed from the 6,946 votes credited to 1st Respondent in the declaration of results as in exhibit JJ tendered by Independent Electoral Commission (INEC) or exhibit Z tendered by 1st Respondent or exhibit P tendered by petitioners, then the 1st Respondent would still win the election with a distant vote of 6,238 as against 7,557 votes scored by the 1st petitioner.
From the foregoing, thereof, the inevitable conclusion this Tribunal comes to is that the 1st petitioner did not score the majority of lawful votes did not prove falsification of results or over voting, the petitioners did not show that there was substantial non-compliance with Electoral Act as to nullify the election in Bende South Constituency.
This Tribunal can not therefore invoke section 146 (1) of the Electoral Act. This petition fails and is accordingly dismissed. No order as to cost.
It’s trite that by virtue of the provisions of section 146(1) of the Electoral Act 2006 (supra), an election shall not be invalidated or nullified [merely] by reason of non-compliance with the provisions of the Act, if it appears to either Election Tribunal or Court, that the election was conducted substantially in accordance with the principles of the Act, and that the non-compliance did not affect substantially the result of the election.
At the conclusion of the submission in the brief of argument thereof, most especially at page 39, the Appellants’ learned counsel has urged upon this court to invoke the provisions of section 15 of the Court Appeal to –
“1.4. Re hears the petition as all the materials are before it and evaluate the evidence which the trial Tribunal failed to do.
1.5… Set aside the judgment of the trial Tribunal and declares the 1st Appellant as elected having scored majority of lawful votes.”
In view of the aforementioned far reasoning postulations, I have the view that it would not only be unreasonable, but also injudicious, for this court to appreciate, talkless of upholding the Appellants, prayer that the judgment of the lower tribunal be set aside. There is no basis whatsoever for this court to interfere with or upset, the said judgment for the very numerous obvious reasons postulated or advanced there above. From the records of proceedings made available to us, the lower tribunal had taken the liberty to painstakingly evaluate, closely examine, and admirably comment or make findings upon the evidence (both oral and documentary) vis-‘E0-vis the submissions of parties to the petition in question.
It is indeed a trite and fundamental principle of civil procedure practice, that where findings of a trial court or tribunal are established as in the instant case to be based upon credible they should not ordinarily be tempered with or set aside by the appellate court. However, it’s axiomatic that whereon, the face of the record of appeal, that the findings of a trial court or tribunal are established to be outrageously perverse, wrong and result in a miscarriage of justice, the appellate court has an onerous duty to upset or set them aside. See NEWBREED ORG LTD V. ERHOMOSELE (2006) 1 JNSC 1 at 36, ANAEZE V. ANYASO (1993) 5 NWLR (PART 291) 1; NKPADO V. OBIANO (1997) 5 NWLR (part 503) 31; LAWAL V. DAWODU (1972) 1 ALL NLR 707; OGBU & ORS v. ANI (1994) 7 NWLR (PART 355) 128; COKER V. OGUNTOLA (1985) 2 NWLR (PART 5) 87; AWOYOOLU V. ARO (2006) 1 JNSC 147 AT 1609 – 166.
In the instant case, there is no basis whatsoever for this court to appreciate, let alone to hold, that the lower tribunal’s findings in the judgment in question were wrong, or perverse thereby resulting in a miscarriage of justice to the Appellants. Thus, the answer to issue No. 3 is inevitably in the affirmative, and same is accordingly resolved in favour of the Respondents, against the Appellants.
Hence, in the light of the foregoing postulations, I have come to the inevitable conclusion that the instant appeal is grossly devoid of any substantial merits, and same is hereby dismissed by me. The judgment of the lower tribunal delivered on 10/01/08 thereby dismissing the Appellants’ petition NO. ABS/SHA/ETT/11/07 is accordingly hereby affirmed by me.
The sum of N30, 000.00 as costs is hereby awarded in favour of each of the three sets of Respondents, against the Appellants.
Other Citations: (2008)LCN/2983(CA)
