Chijoke Nwakodo V. Hon. Stanley Ohajuruka & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the judgment of the Abia State Governorship and Legislative Houses Election Petition Tribunal sitting at Umuahia, the State Capital delivered on the 7th day of February, 2008 which upheld the return of the 1st Respondent as the duly elected member of the House of Representatives for the Ikwuano/Umuahia Federal Constituency of Abia State in the National Assembly of the Federal Republic of Nigeria.
The facts of the case briefly stated are that: Elections into the National Assembly were conducted throughout the Federation on the 28th day of April, 2007. The Appellant was the candidate for the Peoples Democratic Party (PDP) in that election while the 1st Respondent was the candidate for the Progressive Peoples Alliance (PPA). The 3rd to 82nd Respondents are the Independent National Electoral Commission (INEC) and its officials who conducted that election.
At the end of the election, the first Respondent was returned as the person elected in the said election with 43,746 votes as against 36,566 votes scored by the Appellant. The Appellant not being satisfied with that return filed a petition in the said Election Tribunal on two substantive grounds and one alternative ground. The ground which sought to disqualify the 1st Respondent from contesting the election was struck out at the Preliminary Stage.
The Appellant in the course of proceedings secured leave of the Tribunal and filed an amended petition (See pages 645 to 714 of the record).
The petition needless to say was fought on one substantive ground which averred that the Petitioner scored the majority of lawful votes, and one alternative ground which averred substantial non-compliance in two Wards of the Constituency which claimed to have affected the result of the election (See page 649 of the record).
The Appellant sought two reliefs, firstly for his return as the winner of the election instead of the 1st Respondent and in the alternative that a fresh election be conducted in each of the Ahiaukwu II and Ariam Wards to determine the actual winner of the election.
The Appellant testified for himself and called four witnesses. The 1st and 2nd Respondents called four witnesses also and tendered documents which were received in evidence without objection. The 3rd to 83rd Respondents did not call any witness to testify on their behalf.
In their judgment, the Judges of the Tribunal held inter-alia thus:
“On the whole therefore we are unable to find that there is any reason to order a fresh election in Ahiaukwu and Ariam Wards to determine who between Petitioner and 1st Respondent won the election.
Consequently, we are satisfied that the petition lacks merit and it is accordingly dismissed. The return of 1st Respondent is hereby affirmed.”
Dissatisfied with the decision of the Tribunal, the Appellant approached this Court and filed a Notice of Appeal consisting of 16 grounds which are reproduced hereunder shorn of their particulars.
“GROUND ONE: ERROR IN LAW
The learned trial judges of the Tribunal erred in law when they held that the 1st and 2nd Respondent painstakingly denied each and every averment made by the Petitioner.
GROUND TWO:MISDIRECTION
The learned Judges of the Tribunal misdirected themselves when they held that the Petitioner needed to call eye witnesses who saw when the statement of results were collated or those who prepared the statements of results before the statements of results can be accepted and acted upon in proof of the Petition.
GROUND THREE: ERROR IN LAW
The learned Judges of the tribunal erred in law when they held that the statements of results which the Petitioner pleaded and tendered without objection are documentary hearsay evidence.
GROUND FOUR: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held that the Petitioner did not establish a nexus between himself and the statements of results which he tendered.
GROUND FIVE: ERROR IN LAW
The learned Judges of the tribunal erred in law when they held that there is no basis on which the tribunal could examine the result sheets.
GROUND SIX: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held that there is only one set of results – Exhibits AE to AE81.
GROUND SEVEN: ERROR IN LAW
The learned judges of the tribunal erred in law when they relied on the address of the 1st and 2nd Respondents who did not nominate any issue for determination.
GROUND EIGHT: ERROR IN LAW
The learned Judges of the tribunal erred in law by accepting and using the further submissions of the 1st and 2nd Respondents which was filed as “Short Reply” after the petition had been adjourned for judgment.
GROUND NINE: ERROR IN LAW:
The learned Judges of the tribunal erred in law when they held as follows:
“The point must be made that Exhibit WW-WW8 are photocopies that were certified. The said photocopies are rendered in black and white and there is no red ink on it. In the absence of any evidence as to the purpose of the ticks or marks, the tribunal cannot on its own assume or presume the purpose for which the ticks were made and by whom. We agree that the issue of the voters’ register is a matter of evidence particularly as the original voters’ register was not before the tribunal.”
GROUND TEN: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held as follows:
‘In any event, we are of the view that even if there were any acts that rendered the election in the two units in Ariam Ward in Ikwuano Local Government Area (according to PW3) to be such that it can be said that it had been held not in compliance with the Electoral Act, the problems in those two Units in that Ward out of 10 Wards cannot render the election in the entire Local Government Area subject to being cancelled due to non-compliance.
GROUND ELEVEN: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held as follows:
“Learned Counsel for the Petitioner did not address this point in his submission.”
GROUND TWELVE:ERROR IN LAW
The learned Judges of the tribunal erred in law when they failed to make a finding on the status of the results tendered by the 1st and 2nd Respondents which the 3rd to 83rd Respondents relied upon.
GROUND THIRTEEN:EROR IN LAW
The learned Judge of the Tribunal erred in law when they dismissed the petition.
GROUND FOURTEEN:ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held as follows:
‘As for PW3, he said he moved from one ward to the other in Ikwuano Local Government Area and all was well except in Ariam Ward. He said nothing about the other two Local Government Areas.
PW5 is Ayayi Itong, a DSP and the officer in charge of the Criminal Intelligence Bureau of the State Police Command. His testimony focused on Ariam Ward in Ikwuano Local Government Area – to see paragraphs 8 and 9 of Exhibit BR i.e. his deposition. In paragraph 10, he said the result of Umuahia South Local Government Area was not announced. This piece of evidence is not supported by the evidence before the tribunal, in that result sheets were produced from that Local Government Area i.e. Exhibits CC, CC1 – CC6 – PP.’
GROUND FIFTEEN:ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held that the Petitioner did not demonstrate the certified true copies of the results which he tendered in evidence.
GROUND SIXTEEN:
“Judgment is against the weight of evidence.”
On the 15th September, 2008 when this appeal came before us for hearing, learned Counsel for the Appellant, Mr. Denwigwe adopted the Appellant’s brief dated 15/04/08 and filed on 18/04/08. He also filed a reply brief in response to brief filed by Senior Counsel for the 1st and 2nd Respondents which is dated 14/05/08 and filed on 15/05/08. Similarly, he filed another reply brief in response to the brief filed by Counsel for the 3rd to 83rd Respondents. The said reply brief is dated and filed on 18/06/08.
Learned Counsel adopted both the reply briefs and relied on them. He also filed two lists of additional authorities to which he placed reliance.
Learned Counsel formulated five issues from the said sixteen grounds which shall be reproduced anon. By way of oral amplification of the said briefs, learned Counsel submitted that the Electoral Act makes it mandatory for the Tribunal to determine who scores the majority of lawful votes and return him as the winner of the election. Learned counsel further submitted that the 1st Respondent was given more votes than those accredited to vote and that if the result is cancelled the Petitioner would have scored more votes than that of the 1st Respondent. He referred us to the case of Sullivan Chime & ors v Dubem Onyia & ors unreported decision of this Court in Appeal No. CA/E/EPT/14/2008 delivered on the 11th of July, 2008. He urged us to allow the appeal.
For his part, learned Senior Counsel for the 1st and 2nd Respondent, Mr. Awa Kalu (SAN) adopted his brief dated 05/05/08 but filed on 07/05/08. Learned Senior Counsel also adopted and relied on a Notice of Preliminary Objection argued on pages 4 – 16 of his brief. On the list of additional authorities, learned Senior Counsel urged us to discountenance same contending that they are not list of additional authorities properly so-called but further arguments that they could not respond to. Learned Senior Counsel urged us on the strength of their brief to dismiss the appeal.
Learned Counsel for the 3rd to 83rd Respondents, Chief Ifeanyi Iboko adopted his brief which was deemed filed by the Order of this Court on 16/06/08. On the lists of additional authorities, he adopted the submission of the learned Senior Counsel for the 1st and 2nd Respondents. He urged us to dismiss the appeal and confirm the judgment of the lower Tribunal.
It is appropriate at this stage to state that counsel for the Appellant distilled five issues for determination from the 16 grounds of appeal reproduced (supra). The said issues are as follows:
“(i) Whether the Respondents adequately traversed the specific facts pleaded by the Petitioner at the trial? (Ground 1)
(ii) Whether the Tribunal below was right to have relied on the Counsel’s address and “short reply” for the 1st and 2nd Respondents? (Grounds 7 and 8)
(iii) Whether the Tribunal below was right in holding that any acts that rendered the election in two units in Ariam Ward in Ikwuano LGA to be in non-compliance with the Electoral Act the problem in those two units cannot render the election to be cancelled? (Ground 10)
(iv) Whether the Tribunal below ought to have made a finding on the status of results tendered by the 1st and 2nd Respondents? (Ground 12)
(v) Whether on the evidence on record the Appellant ought to be returned as elected?
(Grounds 2, 3, 4, 5, 6, 9, 11, 13, 14, 15 and 16)
Learned Senior Counsel on the other hand did not formulate any issue for determination. He adopted the issues formulated by the Appellant’s Counsel and proffered arguments to counter the arguments of the learned Counsel for the Appellants as we shall see anon.
On the other hand, learned Counsel for the 3rd to 83rd Respondents nominated five issues for determination which he tied to the grounds of appeal filed by the Appellant. The issues are:
(i) Whether the Tribunal was right when it found and held that the Appellant failed to make out a case sufficient for the tribunal to take the next step of examining the results sheets tendered by the Appellant. (Grounds 2, 3, 4, 5 & 12)
(ii) Whether the tribunal was right when it held that there was no evidence to enable the Tribunal determine the results sheets tendered by the Appellant. (Grounds 6 & 13)
(iii) Whether the tribunal relied on the address and ‘short reply’ sent in by Senior Counsel to 1st and 2nd Respondents and if so whether it occasioned a miscarriage of justice’ (Grounds 7& 8)
(iv) Whether the tribunal was right when it held that ‘even if there was problems in two units in Ariam Ward out of 10 it would not be sufficient to warrant cancellation of the result of election in the entire Local Government Area having regard to the provisions of Section 146 (1) of the Electoral Act 2006. (Grounds 9, 10 & 11)
(v) Whether the judgment was against the weight of evidence. (Grounds 1, 14 & 15)’”
As stated a while ago, 1st and 2nd Respondents through their Counsel filed a Notice of Preliminary Objection and I am of the opinion that it will not be out of place if consideration is given to it before delving into the issues formulated by the parties. In the said Notice, 1st and 2nd Respondents challenged the competence of the appeal under consideration upon the following grounds:
“1. That the Notice of Appeal is incompetent for non-compliance with Order 6 Rule 2 (3) of the Court of Appeal Rules, 2007 in that all the grounds of appeal are not concise and are prolix, repetitive, argumentative and contain a conclusion.
AND
- The Respondents aforesaid shall pray that the Notice of Appeal be struck out.”
By way of elaboration, the Respondents consider it apposite to point out the following:
“(i) The Notice of Appeal filed by the Appellant covers 22 pages.
(ii) Grounds 1, 4, 6, 10 and 13 carry 5 paragraphs each of their particulars of error.
(iii) While ground two is made up of 14 paragraphs indicating the particulars of error, ground three is of 8; ground five, 8; ground seven, 2; ground eight, 7; ground nine, 9; ground eleven, 4; ground fourteen, 2; and ground fifteen, 3; only ground 16 is simple.
(iv) Each of grounds one, two and three are replete with arguments arising from decided cases, specifies of which are provided and create the impression that the particulars of the grounds of appeal are preliminary arguments of the appeal.
(v) Indeed, each of the grounds of appeal read together with the particulars is to be taken as a preliminary argument with a conclusion.”
Learned Senior counsel in support of his position with regard to the Preliminary Objection contended that a ground of appeal which alleges an error or misdirection must contain the particulars of the error or misdirection. The particulars supplied are read together with the grounds to which they attach. He submitted that neither the grounds nor its particulars can exist independently. He referred us to the case of Odukwe v. Achebe (2008) 1 NWLR (Pt.1067) 40 at 53.
Learned Senior counsel referred us to a number of cases such as Kalu v. Uzor (2006) 8 NWLR (Pt.981) 66, Oge v. Ede (1995) 3 NWLR (Pt.385) 564, Agbaje v. Younan (1974) 3 WACA, 66 and CBN v. Okojie (2002) 8 NWLR (Pt.768) 44 and urged us to pay close attention and scrutinize the grounds of appeal together with their particulars and hold that the said grounds are unwieldly,argumentative and prolix.Each of the grounds of appeal ought then to be struck out he further urged.
Learned Counsel for the Appellant on the other hand, submitted that the objection be overruled and dismissed for want of merit. Learned Counsel further submitted that the ultimate object of a Notice of Appeal is to give the adverse party and the Appellate Court adequate notice of the nature of the complaints raised by an Appellant against the decision appealed against. He relied on the cases of Nwabueze v. Nwora (2005) 8 NWLR (Pt.926) 1 at 22, D – E and 21 – 22 H.B.
It is the contention of the learned Counsel that apart from grounds 2 and 16 all other grounds complain error in law. They clearly set out the part of the judgment complained of (Quoting the portion in some cases) The particulars of the complaints are then set out in details which leave no doubt so that neither the Respondent nor the Court are deceived.
Let me begin my consideration of this preliminary objection by saying I cannot agree more with the view expressed by the learned counsel for the Appellant that the ultimate object of a Notice of Appeal is to convey to the Respondent and the Appellate Court sufficient notice of the nature of the complaints raised by an Appellant against the judgment appealed against so that the other party is not taken by surprise.
In the case of Nwabueze v. Nwora (supra) it was held inter-alia as follows:
“It is often held that the purpose of the rules of Court relating to the formulation of grounds of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant, and of the issues that are likely to appear in the appeal. Once an appeal satisfies this purpose, it should not be struck out even though it did not conform to a particular form”.
It was further held that:
Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant. In this appeal some of the grounds fall into this definition. CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48; Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) at 267.”
Again in the case of Sosanya v. Onadeko (2005) 8 NWLR (Pt.926) 185 at 215 E – G this Court held thus:
“In the matter under controversy, it appears to me that the fulcrum of the matter is whether an Appellant, having regard to the rules of Court has reasonably formulated his grounds of appeal in substantial compliance with the said rules of Court, notwithstanding the defects on inelegance in the formulation, but so long as the adversary party, is duly notified of the complaint sought to be made by the Appellant. The reason for such objective approach is to ensure that any questioning of the validity of a ground of appeal is not simply predicated on form but rather on substance. After all, it is beyond peradventure that today the application of the rules of Court and attainment of justice is generally no longer allowed or tolerated to be controlled by strict adherence to technicalities but rather to substance.”
It is pertinent to pause at this stage and say that having taken a close look and having scrutinized the grounds of appeal as urged by the learned senior counsel and in the light of the judicial pronouncement quoted (supra) I am of the considered opinion that the preliminary objection raised by the learned senior counsel is completely devoid of any merit. The said grounds cannot be said by any stretch of imagination to be unwieldy, argumentative and prolix. This being the case the said preliminary objection must be and it is hereby dismissed for lacking in merit.
Having dealt with the preliminary objection, I will now proceed to consider the substantive appeal. As alluded above, issues for determination have been formulated by the Appellant and the 3rd to 83rd Respondent. At the risk of being repetitive, I would like to state once again that the 1st and 2nd Respondents did not formulate any issue for determination but adopted the ones formulated by the Appellant.
On the issues for determination, learned Counsel for the Appellant in his reply brief contended that issues for determination must properly arise from the grounds of appeal. Learned counsel further contended that what the Respondents (3rd to 83rd Respondents) have done in their issues for determination numbers (i) (ii) (iv) and (v) is to nominate their issue which do not strictly arise from the Appellant’s grounds of appeal. Learned Counsel submitted that the Respondents having not filed any appeal, they must tie their issues to the existing grounds of appeal. He opined that those issues (i) (ii) (iv) and (v) ought to be struck out. He relied on the cases of A-G. Lagos State v. Eko Hotels Ltd (2006) 18 NWLR (Pt.1011) 378 at 433 D – G, Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt.200) 708 at 753 at A – B and Egbe v. Alhaji (1990) 3 SC 63 at 69.
The question to be asked from the onset is whether or not the issues formulated by 3rd – 83rd Respondents have met the standard set out by the Appellant’s Counsel. However before the question is answered let me quickly say that it is a misconception on the part of the learned Counsel for the Appellant to hold the view that it is only when a party files an appeal that he can formulate issues for determination. Far from it. I have examined the issues for determination formulated by the Counsel for the 3rd to 83rd Respondents. I am of the considered view that the issues arose from the judgment and were properly filed to existing grounds as can be seen from the printed record. This being the case, the issues cannot therefore be struck out as urged by the learned Counsel. However this not the end of the matter on the issues as formulated by the learned Counsel on behalf of their respective clients.
It is now settled beyond peradventure that Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an appeal. See Ikegwaoha v. Ohawuchi (1996) 3 NWLR (Pt.435) p. 146 p.582 and Barde Egwa v. Moses Ciroma Egwa (2007) 1 NWLR (Pt.1014) p.71 at p.86. Having said that I am of the strong view that the real questions in this appeal can be satisfactorily answered by given consideration to the following issues:
ISSUE ONE:
(i) Whether the tribunal was right when it found and held that the Appellant failed to make out a case sufficient for the Tribunal to take the next step of examining the result sheets tendered by the Appellant (Grounds 2,3, 4,5 and 12).
(ii) Whether the Tribunal relied on the address and ‘short reply’ sent in by the Senior Counsel to 1st and 2nd respondents and if so whether it occasioned a miscarriage of justice (Grounds 7 and 8).”
Learned Counsel for a the Appellant contended that the Appellant presented a case to the effect that wrong figures of scores were transferred from polling stations statements of results Form EC8A (ii) to the Wards results forms EC8A (R) [some Ward results were designated as forms EC8B (i)]. Learned Counsel further contended that the particulars of the Polling Stations where those irregularities occurred and the specific number of votes affected were specifically pleaded in paragraphs 5 of the Amended Petition (See pages 653 to 663 of the record appeal). Learned Counsel also referred to the Appellant’s reply at pages 314 to 325 to buttress his point on the same issues.
Learned Counsel argued that the response of the 1st and 2nd Respondents to those specific averments of facts and figures is the general denial which can be seen in paragraphs 14 to 23 of their reply. Learned Counsel further argued that when the Appellant pleaded the specific scores of votes, their proper traverse is to plead specific contrary scores. He relied on the case of Awuse v Odili (2005) 16 NWLR (Pt.952) 416 at 507 and paragraph 12 (2) of the First Schedule to the Electoral Act, 2006.
It is the submission of the learned Counsel that the intendment of paragraph 12 (2) of the First Schedule to the Electoral Act, 2006 is that the Respondent shall set out the facts and figures clearly and that the reply must distinctly disprove the claim of the Petitioner. He relied on the case of Chief Okey Ikoro v. Hon. Osita Izunaso & Ors, unreported judgment of this delivered on the 9th April, 2008 in Appeal No. CA/PH/EPT/488/2007 and Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt.1006) 608 at 698 A.
Learned counsel further submitted that since the Appellant alleged that he had the highest number of votes cast at the election the provisions of paragraph 15 of the 1st Schedule to the Electoral Act therefore comes into force which is mandatory. He referred us to the cases of Ikoro v. Izunaso (supra) and Hassan v. Tumu (1999) 10 NWLR (Pt.624) 700 at 710 A – B and 712 A – B, Ridam v. Lar (1999) 9 NWLR (Pt.620) 614 at 622 – 628 and Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 170 E – F.
Learned Counsel finally submitted on this issue that it is beyond question that the 1st Respondent failed to traverse the material averments in the pleadings and that the lower tribunal was wrong to have held that the 1st and 2nd Respondents painstakingly denied each and every averment made by the Petitioner. This error learned Counsel opined has occasioned a miscarriage of justice. He thus urged us to resolve this issue in favour of the Appellant.
Learned Senior Counsel for the 1st and 2nd Respondents on the other had contended that the Appellant by his submission in paragraph 4.01.6 has manifested an intention to make heavy weather of the purport of paragraph 15 of the First Schedule to the Electoral Act, 2006. It is the submission of the learned Senior Counsel that the Appellant has misconceived the purport of the provisions of the Electoral Act on which reliance is placed. Learned Senior Counsel went on to argue that what the Appellant has conveniently forgotten was that apart from the provisions of the 1st Schedule, the trial Tribunal was also regulated by the provisions of the Election Petition and Court Practice Directions, 2007 which directs a Respondent to file his/her reply in a summary form and shall be supported by documentary – evidence, list of witness and the written statements on oath.
It is the contention of the learned Senior Counsel that parties in an election petition are bound by the Practice Directions. If the Respondents are by a latter enactment (by way of subsidiary legislation) directed to file a statement in summary form, then the Appellant cannot be heard to complain. Learned Senior Counsel further contended that as can be seen in paragraph 38 and 39 of the reply (see page 210 of the record) the reply of the Respondents satisfied the requirements of not only paragraphs 12, 15 and 16 of the First Schedule to the Electoral Act, 2006 but is sufficient for the purpose of paragraph 2 of the Practice Directions.
It is the submission of the learned Senior Counsel that the Respondents have joined issues with the Appellant by repudiating the allegations of malpractices in a copious and detailed manner. Learned Senior Counsel urged us to resolve this issue in favour of the Respondents seeing that the practice of front loading results have negated the provisions relied upon by the Appellant having rendered same obsolete.
For his part, learned counsel for 3rd to 83rd Respondents contended that after considering the various submissions of counsel in the matter and the totality of evidence laid before it by the Appellant in support of his position the Tribunal dismissed the case of the Appellant. Learned Counsel submitted that the Tribunal’s decision is unimpeachable. The Tribunal’s assessment and evaluation of the evidence of PW1 and PW2 is correct.
It is the submission of the Learned Counsel that the Appellant’s failure to call any of the agents who claimed handed over the results sheets to him proved fatal to his case. Learned Counsel further submitted that since there was dispute as to the scores on the Polling Unit result handed over to the Appellant by his agents it was incumbent on the Appellant to produce those agent who handed over the results to him to testify before the Tribunal as required by law. This, the Appellant failed to do, learned counsel posited.
Learned Counsel submitted that the contention of the Appellant in paragraph 4.05.1 to the effect that they never tendered document at the trial is misconceived. The 3rd Respondent, learned Counsel went on tendered documents by adopting the documents tendered by the 1st and 2nd Respondents (see address of 3rd Respondent’s Counsel at page 40 of the record).
Similarly, the contention of the Appellant in paragraph 4.05.1 of the brief that 3rd Respondent never challenged the Appellant on any material issue through cross-examination and did not cross-examine the Appellant or his witnesses on any material facts and they are deemed to have abandoned their pleading and also deemed to have accepted the evidence led by the Appellant on pleaded facts is most incorrect and misconceived. Learned Counsel submitted trial the said contention of the Appellant in the said paragraphs of the brief become irrelevant in view of the finding of the Tribunal that the Form EC8A (ii)’s tendered by the Appellant were not properly before the Tribunal and therefore are not legai evidence which the Tribunal can rely upon. Learned counsel urged us to answer issue (i) in the affirmative.
In tackling this issue, my first port of call is the provisions of Practice Directions 2007 which along with the Electoral Act regulate proceedings in Election Petition Tribunal across the country. Specifically, paragraph 2 of the said Practice Directions provides thus:
“The Respondent’s Reply shall be a statement in summary form and shall be supported by documentary evidence, list of witnesses and the written statements on oath.”
It is pertinent to state at this stage that the provisions of the above reproduced Practice Directions are self-explanatory and needs no aid to interpret same. The question to be asked is whether in the light of the said provisions, the 1st and 2nd respondents can be said to have adequately traversed the specific facts pleaded by the petitioner at the trial. To answer the question posed supra, recourse had to be made to the reply of the Respondents.
In paragraph 38, the Respondents averred thus:
“38. Paragraph C5 (a) under Umuahia North LGA appearing on page 14 of the Petition is false in all material particulars. And the respondents further state that the result duly declared by the presiding officer in Emede Primary School Booth 009 represented the true result of the Polling Station and the contrary figure of votes which the petitioner claims to have scored at the Polling Station, is false and fictitious. Further to the above, the respondents state that nobody, including the Presiding Officer in charge of the Booth, unlawfully deduced any votes from the petitioner’s scores or added any unmerited number of votes to the 1st Respondents’ score or for the benefit of any candidate during the election. Further to the above, the Respondents further state that in Ibeku East II Ward 02 of Umuahia North LGA, and particularly in Emede Primary School Booth 009, there was no illegal or wrongful deduction, falsification, mutilation, manipulations, and or additions to the result by the INEC staff.”
Again, in paragraph 39 of the same reply, they averred as follows:
“Paragraph C5 (b) (i) under Umuahia Urban 1 Ward 05 appearing on page of the Petition is false in all material particulars. And the Respondents further state that the result duly declared by the Presiding Officer in Ibeku Central School Booth 024 represented the true result of the Polling Station and the contrary figure of votes, which the Petitioner claims to have scored at the Polling Station is false and fictitious. Further to the above, the Respondents state that nobody, including the Presiding Officer in charge of the Booth, unlawfully deducted any votes from the Petitioner’s score or added any votes from the Petitioner’s score or added any unmerited number of votes to the 1st Respondent’s score or for the benefit of any candidate during the election. Further to the above, the Respondents further state, that in Umuahia I Ward-05 of Umuahia North LGA, and particularly in Ibeku Central School Booth 024, there was no illegal or wrongful deductions falsification, mutilation, manipulations and or additions to the result by the INEC staff’”
I am of the strong view that the above reproduced paragraphs of the reply of the 1st and 2nd Respondents as submitted by the learned Senior Counsel satisfies the requirement of not only paragraphs 12, 15 and 16 of the 1st schedule to the Electoral Act, 2006 but is quite sufficient for the purposes of paragraph 2 of the Practice Directions. It is pertinent to pause at this juncture and state that the cases of Awuse v. Odili; Ikoro v. Izunaso and Adeleke v. Oyo State House of Assembly (supra) cited by the learned Counsel for the Appellant are not apposite to the facts and circumstances of the case in hand.
I now proceed to consider whether or not the Tribunal was right when it found and held that the Appellant failed to make out a case sufficient for it to examine the results sheets tendered by the Appellant.
Learned Counsel for the Appellant has made heavy weather of this issue contending that he testified as PW4 and called other three witnesses who testified as PW1, PW2 and PW3. Learned Counsel also contended that they tendered documents such Forms EC8A (ii) and EC8A (BR) which were admitted without objection. He relied on the case of Ebu v. Obun (supra).
Now, it is in evidence that PW1 and PW2 testified that as INEC Adhoc Staff they were prevented from performing their duties as Presiding Officers in Ariam Ward. Their evidence needless to say does not relate to collection and handing over result sheets to the Appellant. PW3 did not also say that he collected and handed over result sheets to the Appellant. PW3 did not also say that he collected and handed over result sheets to the Appellant nor was PW5, the Police Officer testified to that effect.
It is my considered view that the Appellant’s failure to call any of the Agents who he claimed handed over the result sheets to him proved fatal to his petition. This is more so when there was a dispute as to the scores on the Polling Units result handed over to him by his agents. I am of the further view that it was incumbent on him to produce those agents who handed over the results to him to testify before the tribunal as required by law.
In the case of Flash Fixed Odds Ltd v Akatugba (2001) 9 NWLR (Pt.717) 46 at 63, his Lordship, Niki Tobi, JCA (as he then was) held thus:
“It is the law that a maker of a document is the proper person to tender it. If a person who did not make the document tenders it (and he can) the trial judge should not attach probative value to it because that person cannot be cross-examined on the document since he is not the maker and therefore not in a position to answer any question arising therefore, I am in entire agreement with learned Counsel for the Appellant that exhibit ‘C’ is documentary hearsay.”
In the case of Chief Sergent Chidi C. Awuse v. Dr. Peter Odili & Ors (2005) 6 NWLR (Pt.952) 416 at pp. 509-510, this court per Ogunbiyi, JCA held as follows:
“Deducing from the authority (supra) it is evident that the witnesses PW1, PW2, PW3, PW4 & PW181 who were not present at the Polling Booths where the alleged card owners ought to have voted on 19/04/03 cannot in the circumstances give any direct account of whether the alleged owners voted or not.”
Again, in the case of Hashidu v. Goje (2003) 15 NWLR (Pt.843) 352 at 392, Akintan, JCA (as he then was) had this to say:
The main contention in the appeal is whether the appellants led sufficient credible evidence at the trial to warrant turning around the result of the election declared in favour of the 1st Respondent by INEC. The result as declared by INEC gave the 1st Respondent 494,562 votes as against 468,273 votes credible to 1st Appellant. The margin was therefore 26,289 votes.
All that the Appellants needed to prove was to ensure that 26,289 votes plus one vote are substracted from the votes credited to the 1st Respondent. But in their efforts to prove this they relied principally on the evidence led by PW1 and PW3 their two principal witnesses. They over looked the point that these two witnesses were not in the field where the results being challenged were counted and entered on the forms brought to PW1 and later passed on to PW2. The evidence relied on by PW1 and PW2 are therefore what they were told by the witnesses (i.e. their agents) who were not called to give evidence. The correct evidence is this respect ought to come from the Polling Agents who received the forms from INEC Polling Officials and in whose presence the INEC officials prepared and signed the forms on which the disputed figures were written.”
I am of the strong view and consistent with the decisions of this Court adumbrated above, the Appellant having failed to produce the agents, the Form EC8As though admitted without objection are nothing but documentary hearsay and the tribunal was right in not placing any probative value on them. In the case of Hashidu v. Goje (supra) it was contended by the learned counsel to the Appellant that the Tribunal was functus officio after admitting the said forms in evidence and it cannot later turn round and reject them and treat their as unpleaded and inadmissible in evidence when considering its judgment. This Court rejected this contention and held thus:
“I disagree with J. B. Daudu, SAN for the Appellants for submitting that the Tribunal was functus officio after admitting the said forms in evidence and it cannot later turn round to reject them and treat them as unpleaded and inadmissible in evidence when considering its judgment. This is not a matter of the Tribunal approbating and reprobating at the same time. It is a matter of settled law which the tribunal was bound to apply.”
Learned Counsel for the Appellant has made heavy weather of the fact that all the documents they tendered were admitted as Exhibits without any objection from the Respondents. With due respect to the learned counsel, there is along line of decided cases where it was been held that when a matter has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Appeal Court to reject it and decide the case on legal evidence. See Metalimplex v. A.G. Leventis & Co. Ltd (1976) 2 SC 91 at p.102, Ajayi v. Fisher (1959) 1 FSC 90, Owonyin v. Omotosho (1961) 2 SCNLR 57, Agbaje v. Adigun (1993) 1 NWLR (Pt.269; Inyang v. Eshiet (1990) 5 NWLR (Pt.149) 178, Alashe and Ors v. Olori Ilu & Ors (1965) NMLR 66 at 71 and Raimi v. Akintoye (1986) 3 NWLR (Pt.26) 97.
The Exhibits enumerated on the brief of the Appellant, specifically in paragraph 4.05.2, numerous as they are a documentary hearsay which is inadmissible or even when admitted cannot attract probative value or weight as was decided by the apex Court in the case of Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141 at 160 paras A – C. The Apex court held thus:
“There is a difference between admissibility of a piece of evidence and the cogency or probative value to be attached to it. Before evidence is admitted the court has a duty to consider all the rules of exclusion and decide whether there are any grounds for which it cannot look at the evidence at all. Once the evidence has been admitted, the court will then consider what weight to attach to it, that is, what it proves in the con of the issues in controversy between the parties. In jury trial, the latter is for the jury. In the instant case, the fact that the Appellants’ plan was admitted without objection will not entitle the judge to ascribe to it a probative value which it did not otherwise possess when the plan itself is bereft of features which can give the boundaries in it the character of certainty.”
That aside, the comparative analysis of Polling Station statements of results contained in paragraph 4.05.4 and 4.05.5 of the Appellant’s brief will not be accorded any consideration because the results the Appellant used in the comparative analysis are the same results which the lower Tribunal had found to be documentary hearsay. The Appellant, needless to say in the circumstances of his case, the only legal evidence he had before the lower Tribunal were the certified true copies of Form EC8A (ii) Exhibits AE, AE1 – AE81 handed over to him by the Respondents. Those Exhibits stood alone. The Appellant therefore failed in his attempt to tender two sets of results before the tribunal failed in his attempt to tender two sets of results before the tribunal one set stigmatized as required by the law, It was only if the Appellant has discharge this onus i.e. tendering two sets of results that there would be basis for comparative analysis.
It is instructive to note that the Appellant by urging us to resolve this issue in his favour is inviting us to do “cloistered justice” which is not permissible under our law. The Tribunal in my view was right when it held at pages 619 of the record thus:
“Without doing so, there will be no comparison to enable the tribunal determine whether or not there was vote manipulation, reduction or vote increase in favour of the 1st and 2nd Respondents.”
In the light of the foregoings, this issue is resolved in favour of the Respondents and against the Appellant.
The next and last issue for determination is whether the tribunal relied on the address and “short Reply” sent in by Senior Counsel to 1st and 2nd Respondents and if so whether it occasioned a miscarriage of justice.
Learned Counsel for the Appellant contended that though leave was granted to the 1st and 2nd Respondent (albeit not on record) to file additional authorities on the adumbration made by the learned Counsel to the Appellant whilst adopting their written addresses, learned counsel rather than submitting the said additional authorities filed in a written address which he captioned as short reply. It is the contention of the learned Counsel that that reply was never served on the Appellant.
Learned Counsel after quoting extensively from the judgment of the Tribunal to show how the learned Judges relied on the said reply to arrive at their verdict to the detriment of the Appellant contended that the leave granted to the Respondents was to submit authorities and not to tender new submissions.
Learned Counsel submitted that service of processes is an inviolable prerequisite to fair hearing. Any process which is not duly served on an adverse party cannot be competently used in judicial proceeding no matter how otherwise so well conducted. He relied on the case of Madukolu v. Nkemdilim (1962) Vol. 2 NSCC at 374. He further submitted that no provision is made by the Election Tribunal and Court Practice Directions, 2007 or by any Rules of Court to permit any further address after the reply on point of law by the party who filed the first address. Counsels.
It is the submission of the learned Counsel that counsels’ addresses ought not become an endless cycle. The use of those addresses prejudiced the Appellant. We were urged to resolve this issue in favour of the Appellant.
For his part, learned Senior Counsel contended that the Practice Directions did not make any room or provision for what the Appellant calls “Adumbration”. Rather, paragraph 5(14) of the Practice Directions provides that “the party who files the first address shall have a right of reply on points of law only. Whilst adopting their written addresses, learned Counsel went on did nothing else but the Appellant’s Counsel in an apparent attempt to overreach the Respondents, re-opened and reinforced his argument on several points and thereafter cited authorities. The Respondents, learned Counsel went on were short-changed in that no comments could be offered on the spot. The record at p.597 shows what transpired as follows:
“Kalu, SAN: We have the last word. I will send a written submission of same.”
It is the contention of the learned Senior Counsel that though the Appellant is correct in nothng that “leave was granted (not on record) to the 1st and 2nd Respondent’ Counsel…” What is not correct is that the leave was ‘to submit additional authorities on those points if they found any before judgment” The leave granted off record as conceded by the Appellant was for the purpose of filing a “written submission” in response to the adumbration.
Learned Senior Counsel further contended that the “short reply” came about because the Appellant re-opened his address when he made fresh submission by way of “adumbration”. The written submission filed by the Respondents were merely a reply to the points made by the Appellant in his so-called adumbration and not more. He urged the Court to resolve this issue in favour of the Respondents.
Learned Counsel for the 3rd to 83rd Respondents contended that it was after the Tribunal had reviewed the evidence and making a series of findings beginning from page 615 to 619 lines 6 – 9 of the record that reference to the ‘short reply’ was made. The learned judges of the Tribunal on those pages stated thus:
“In the absence of any basis for the Tribunal to examine the result sheets to ascertain whether Petitioner scored the majority of lawful votes. It follows that the only ground in support of the petition cannot be proved. The only issue for determination is thus resolved against the petitioner.”
Learned Counsel argued that it is crystal clear from the above quoted portion of the judgment that the Tribunal had already resolved the only issue for determination against the Appellant before any reference was made to the ‘short reply’.
A careful perusal of the record of Tribunal reveals that before any reference was made to the “short reply” the tribunal had observed as follows:
“There were submissions by learned counsel for the petitioner about accreditation of voters in an effort to show that over voting took place in Ariam and Ahiaukwu Wards. He referred to and relied on Exhibit WW – WW8 and several decided cases. In his reply on point of law filed on 29/01/08 learned Senior Advocate for 1st and 2nd Respondents pointed out that there is no evidence from the Petitioner to:
(a) Show the ticking or marking of these exhibits
(b) Who ticked or marked them and
(c) The purpose for which the ticking or marking was made.
Thus he submitted that only the person who made the ticks or marks can tell the tribunal what they stood for. He urged the Tribunal not to draw any conclusion by merely looking at Exhibit WW – WW8 without such evidence.” (See lines 17 – 26 page 620 and lines 1 – 4 page 621 of the record)
(Underlining supplied for emphasis)
It is noteworthy to observe that he reference the Tribunal made in the above quoted portion of the judgment was to the “reply on points of law filed on 29/01/2008 by the learned senior counsel for the 1st and 2nd Respondents. It is the Petitioner’s counsel who made the point that since the Election Manual has stated the reason for the ticking, it was no longer necessary to introduce oral evidence to clarify that issue. Thus it can be seen from the record that it was the submission of the Counsel for the Appellant that attracted the “short reply” sent in by Senior Counsel for the 1st and 2nd Respondents (see pages 595 – 597 of the record)
It needs to be stressed at this juncture that it was because of the new issue raised by the Counsel for the Appellant and the fact that the Respondents have the last word during address that the Senior Counsel for the 1st and 2nd Respondents sent in a written submission in reaction to the issue raised by counsel to the Appellant which was not argued in his written address which would have afforded the Senior Counsel for 1st and 2nd Respondents opportunity to reply to the same in their reply on points of law. Hear the Tribunal:
“The point must be made that Exhibits WW – WW8 are photocopies that were certified. The said photocopies are tendered in black and white and there is no read(sic) ink it. In the absence of any evidence as to the purpose of the ticks or marks the tribunal cannot on its own assume or presume the purpose for which the ticks were made and by whom. We agree that the issue of the voters register is a matter of evidence particularly as the original voters register was not before the Tribunal.” (See page 621 lines 17 – 24 of the record). (Underlining supplied for emphasis).
I am of the considered view that from the portion of the judgment reproduced (supra) it was quite clear that the Tribunal did not rely on the address and “short reply” sent in by the learned senior counsel for 1st and 2nd Respondents in arriving at the decision not to place any probative value on Exhibits WW – WWS. The Tribunal thus relied on the evidence before it and held that:
“In the absence of any evidence as to the purpose of the ticks and marks, the tribunal cannot on its own assume or presume the purpose for which the ticks were made and by whom.”
It is now settled beyond dispute that there is a world of difference between the address of counsel and testimony of a witness give on oath. Whereas the address of counsel are handmaids of justice and assist to narrow the scope of judicial labour and research, the testimony of a witness is much more. It is legal evidence, the usage of which can make or mar the case of the party. The decision of the Court can also be radically affected by improper usage of the testimony witness. The failure of the court to consider the testimony of the witness could be fatal to the decision of the court. Not so with address of the learned counsel which at most are formidable suggestions with no legal force and therefore lack the “power” of a sworn evidence. See Chemiron Int. Ltd v. Egbujuonuwa (2007) All FWLR (Pt.395) 444 at 458 paras E – F.
I pause here to say that I cannot agree more with the submission of the learned counsel for the 3rd to 83rd Respondents when he submitted as follows:
“We submit that the oral submission of counsel for the Appellant on 5/2/2008 while adopting his written address is no evidence before the court to prove the purpose for which the ticks were made and by whom. The tribunal was therefore right when it held that there is no evidence before the tribunal “as to presume the purpose for which the ticks were made by whom.”
This issue, like the previous one is also resolved in favour of the Respondents and against the Appellant.
In the result, in the light of that I have said, this appeal is completely devoid of any merit and must be and it hereby dismissed with N50,000.00 costs in favour of the 1st and 2nd Respondents. The return of the 1st Respondent as the duly elected candidate for Ikwuano/Umuahia Federal Constituency is hereby upheld.
Other Citations: (2008)LCN/2942(CA)
