Cosmas Ndiwe Ogu V. Ike Ekweremadu & Ors (2004)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
The appellant – Cosmas Ndiwe Ogu contested the 2003 Senatorial election on the platform of the All Progressive Grand Alliance (APGA). He lost the election to the 1st respondent – Ike Ekweremadu who contested the election, sponsored by the Peoples Democratic Party.
The appellant and the 1st respondent were among six contestants who vied for election into the Enugu West Senatorial District in the National Assembly Election held throughout the country on the 12th of April, 2003. The 1st respondent scored 237,141 votes as against the appellant who scored 5,607 votes according to the official results declared by Independent National Electoral commission (INEC). The appellant contested the result by filing an election petition against the 1st respondent, Ike Ekwereadu, the 2nd respondent, People’s Democratic Party of Nigeria and the 3rd – 539th respondents INEC and its officials. He challenged the conduct of the election and the return of the 1st respondent as the winner of the election by filing a petition on the 12th of May, 2003 praying the Election Tribunal for the following reliefs:-
(a) Declaration that the 1st respondent was not duly elected as announced by the 10th respondent and upheld by the 3rd and 4th respondents.
(b) That the petitioner is declared validly elected and returned having polled the highest number of lawful votes cast at the election.
(c) Or in the alternative, a nullification of the senatorial poll held on the 12th April, 2003 and ordering of a fresh
poll within sixty days from the date of such nullification.
The grounds for the petition as stated in the petition are as follows:-
(i) The election was fraught with irregularities and violence by the agents of the 1st and 2nd respondents.
(ii) There was non-compliance with the provisions of the Electoral Act, 2002 and the INEC guidelines and regulations for the conduct of election made pursuant to the said Electoral Act by the 3rd – 10th respondents.
(iii) The 1st respondent was not duly returned by majority of lawful votes at the election.
The appellant pleaded official result of votes of the candidates as declared by INEC and also averred that he received duplicate Forms EC8A from his agents in a few Wards in Awgu L.G.A. in respect whereof INEC was specifically required to produce at the trial originals of EC8A Forms set out. In the replies filed on behalf of the respondents the various allegations of the appellant were strongly denied. The appellant in an effort to substantiate the petition called twenty-one witnesses, the 1st respondent called nineteen witnesses and tendered documents, while the 3rd-539th respondents called five witnesses and also tendered documents in disproving the petitioner’s case. The lower tribunal delivered a unanimous judgment on the 31st of March, 2004 dismissing the election petition. Being dissatisfied with the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal, the appellant appealed to this court in his notice of appeal filed on the 13th of April, 2004.
Parties filed and exchanged briefs. When this appeal was heard on the 23rd of September, 2004, the appellant adopted and relied upon the appellant’s brief filed on the 19th of August, 2004. In the brief the appellant distilled four issues for determination from the eight grounds of appeal filed. The issues for determination read as follows:-
“Issue No. One
Whether the acts of members of the Election Tribunal in declating admissible in favour of the respondents’ documents not specifically pleaded resulted in miscarriage of justice?.
Issue No. Two
Was the Election Tribunal correct to have relied and acted upon unpleaded documents of the respondents to hold that the 1st respondent scored the majority of lawful votes cast in the said election? Inspite of the plethora of substantial irregularities on the face of documents?.
Issue No. Three
Whether by the materials placed before the Election Tribunal the petitioner has been able to discharge the evidential burden of proof to be entitled to judgment in his favour?.
Issue No. Four
Whether the appellant was given a fair hearing having regard to the totality of the proceedings before the Tribunal?.”
The 1st respondent adopted and relied on the respondents brief filed on the 26th of August, 2004, where three issues were outlined for determination as follows: –
“Issue No.1
Whether exhibits 20-33 were wrongly admitted and acted upon by the lower tribunal and if so whether miscarriage of justice was thereby occasioned?.
Issue No.2
Whether the appellant discharged the onus of proof entitling him to judgment in his favour?.
Issue No.3
Whether the appellant was given a fair hearing in the lower tribunal?.”
The 3rd-539th respondents in the same vein as the other 8 respondents settled three issues for determination: –
“Issue No. One
Whether the tribunal was wrong in admitting exhibits 20-22 and 24-33 as valid evidence in the proceedings.
Issue No. Two
Whether the claims of irregularities and/or non-compliance was made out at the trial?
Issue No. Three
Whether the tribunal’s verdict was justified on the pleadings and evidence?.”
Before the hearing of the appeal, the learned counsel for the petitioner/appellant, Mr. A. lbekwe applied to delete the name of the 2nd respondent, the political party – the Peoples Democratic Party who hitherto had been merely a nominal party from the record.
The application was granted as prayed. The appellant in the argument on the issues submitted on issue one that the trial of election petition is trial by pleadings, while parties and the court are bound by the pleadings. Where material facts are documentary, the documents must be specifically pleaded. It is also settled law that if a document that was not pleaded was inadvertently allowed to be tendered or admitted, such document would go to no issue and will be liable to be expunged. The appellant made reference to the provisions of paragraph 15 of the 1st Schedule to the Electoral Act, 2002 relating to pleadings in the Election Petition. The appellant submitted that the respondents neither pleaded in its reply to the petition nor tendered any carbonized counterpart copies of the original form ECSA – E tendered and admitted as exhibits 20 – 22, and 24 – 33, the tribunal cannot admit same, and if they were inadvertently admitted, they would go to no issue and should have been expunged from record. He referred to the cases of – Kurji v. Mohammed (1993) 2 NWLR (Pt.277) p.602; Abdullahi v. Elayo (1993) 1 NWLR (Pt.26S) page 171.
While considering issue two on whether the election tribunal was correct to have heavily relied on and act upon unpleaded material facts by the respondent to hold that the 1st respondent scored majority of lawful votes cast in the said election. The appellant urged this court to declare that the election Tribunal was not correct to have relied and acted upon unpleaded material facts by the respondents to hold that the 1st respondent scored the majority of lawful votes in the said election. In the circumstance, the 1st respondent was unable to show that he was duly returned as the winner of the election held on the 12th of April, 2003 in respect of Enugu Senatorial District.
The tribunal made several findings of fact based on exhibits 20-22, and 24-33 in an effort to justify the conclusion that the 1st respondent won the majority of lawful votes cast at the said election. The findings are not only perverse but are based on the inadmissible evidence, improper evaluation of unreliable, discredited and worthless evidence. This court has a duty to interfere with such findings. Exhibits 20-22 tendered by DW20, the Electoral Officer for Ezeagu Local Government are full of inconsistencies and contradictions. Vide pages 261-289 of the records. The tribunal failed to evaluate and make proper findings on them, same applies to exhs. 24-25 tendered by DW21 Electoral Officer for Aninri Local Government Area of Enugu. Also exhibits 26-26(19) unpleaded documents tendered by DW22 Electoral Officer for Oji River, and 27-27(10) unplealed documents tendered by DW.23 Electoral Officer for Awgu L.G.A. of Enugu State, and the evidence of DW24, as regards exh.33. DW.24 was the Enugu West Senatorial District Collation Officer for the Election. The Tribunal equally failed to consider the material inconsistencies and contradictions in exhibits 29 and 33 tendered by DW23. Cases of Thompson v. Arowolo (2003) 2 SC 108 at 122-125, (2003) 7 NWLR (Pt.818) 163; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 525; Nwosu v. Board of Customs and Excise (1988) 5 NWLR (Pt.93) 225 at 30; Adamu v. The State (1991) 4 NWLR CPt. 187) at 530.
The 1st respondent replied to the issue, by submitting to this court that the substance of the argument of the appellant on this issue is that exhibits 20-33 were not expressly and specifically pleaded as documents, and as such ought not to have been admitted in evidence at the Tribunal. The 1st respondent referred to the rulings of the Tribunal at pages 184, 185, 187, 192, 193, 198, 200, 201 and 203 of the record where the objections to the admissibility of exhibits 20-33 were considered and rejected. The 1st respondent submitted that the said exhibits were not only legally admissible; they were properly admitted at the trial, weighed and considered in the light of the oral testimonies of the respondent’s witnesses all of which are based on material facts duly and sufficiently pleaded, and placed before the lower court. It is trite that only material facts are pleaded and not evidence by which the material facts are to be established, while a party is at liberty to adduce evidence on facts not pleaded by him provided that such facts are pleaded by the adverse party. While replying to issue one, the 3rd-539th respondents argued that the election result forms tendered as exhibits 20-22, 24-33 could either be expressly pleaded or the facts in respect of the document excluding its contents which would eventually be brought in as evidence. All that the Electoral Act, 2002 paragraph 12(1) of the First Schedule require is only to place material facts pleaded in paragraphs 3, 4, 6, 8, 9, 10, 13, 18 and 20. Vide pages 54-57 of the records. The appellant did not join issues on the matters of inconsistencies and unreliability on the pleadings. The respondents cited the cases of Egbeide v. Osula (2004) 12 NWLR (Pt. 886) at 86; Thanni v. Saibll (1977) 2 SC 89; Monier Construction Co. Ltd. v.Azubuike (1990) 3 NWLR (Pt.136) at 74; Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt.453) at 148; Olasehinde v.ACB Ltd. (1990) 7 NWLR (Pt. 161) at 180.
On issue three – Whether by the materials placed before the Election Tribunal the petitioner have been able to discharge the evidential burden of proof to be entitled to judgment in his favour. The appellant submitted that the petitioner has the burden of proving the existence of facts which he pleaded. Section 137(1) of the Evidence Act, 1990, the burden of proof in civil case is discharged by the preponderance of evidence, balance of probability and proof beyond reasonable doubt in criminal cases. The petitioner pleaded in his petition and tendered carbon copies of the said results from his agents and signed by presiding officers as exhibits 1-7 at the Election Tribunal. The evidential implication of exhibits 1-7 is that they rank as the originals, and that qualifies them as tenable available source to test the veracity of the parties contention on the issue of what in fact were the actual scores made by the contending parties.
The appellant cited the cases of Anyaegbu v. Ozor (1999) 4 NWLR. (Pt.598) at 184; Basheer v. Same (1992) 4 NWLR (Pt.236) 491 at 503; Nnadi v. Ezike (1999) 10 NWLR (Pt.622) at 228. The definition of an election refers to the whole process of election, constituting collation, recording of all relevant INEC Forms, and declaration of result. Hence all relevant documents must be pleaded; sections 71-79 of the 1999 Constitution required that a candidate to the National Assembly shall score a majority of lawful votes cast in the particular election. The only authentic evidence before the Tribunal was exhs. 1-7. The Tribunal should have relied on them to give judgment in favour of the appellant.
The 1st respondent in his reply disagreed with the appellant on the issue of the onus of proof and contended that where there is a disputed allegation of crime or criminal misconduct in an election petition, the standard of proof on the party making such allegation is proof beyond reasonable doubt. At pages 409-439 of the record, the learned trial Judge carefully weighed and balanced the cases of the respective parties before arriving at the conclusion that the appellant failed to discharge the legal onus thrust upon him. The learned trial Judge considered the oral testimonies of all the witnesses and their demeanour, exhibits 1-7 and 20-33 in arriving at its ultimate decision in the matter, consequently rejecting the appellant’s case. An appellate court will only interfere with the verdict of the Tribunal, where the appellant can prove that same was perverse. The appellant I failed to establish perversion, and also failed to rebut the presumption in favour of due return, his petition is automatically bound to fail.
The respondent cited the cases of Nwobodo v. Onoh (1984) 1 SCNLR 1;Anyua v.Adasu (1992) 3 NWLR (Pt.23 1) at 598; Balami v. Bwala (1993) 1 NWLR (Pt.267) at 51; UBA for Africa Plc. v. Sani Abacha Foundation for Peace and Unity & Or. (2004) 3 NWLR (Pt.861) 516 at 540; Rotimil v. Faforiji & Ors. (1999) 6 NWLR (Pt.606) at 305; Remi v. Sunday (1999) 8 NWLR (Pt.613) at 92; Imar v. Malarima & Ors (1999) 3 NWLR (Pt.596) at 545.
The 3rd – 539th respondents claimed that all the appellant brought into the proceedings in proof of the majority votes claimed by him are as in exhibits 1-7 for an election covering Enugu West Senatorial District, and that any number of votes would satisfy the requirement of majority votes under section 71-79 of the Constitution. The appellant who disputed the accreditation, vote counting, announcement of results, failed to plead or tender the voter’s Register. The respondent brought every available evidence to show that voting and other required electoral processes took place in all the areas complained about in the petition.
As regards the 4th issue, which is whether the appellant was given a fair hearing having regard to the totality of the proceedings before the Tribunal? The appellant outlined the basic criteria and attributes of fair hearing as enshrined under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
The tribunal demonstrated bias in the evaluation of the evidence of the witnesses of the parties. The tribunal failed to consider or evaluate all the evidence of PW1- PW21, while placing absolute reliance on the evidence of DW1, DW2, DW3, DW4, DW6, DW7, DW10, DW11, DW18, DW20 and DW23 to prove that they voted where there was allegation of non-voting. The tribunal relied on the evidence of DW11, DW12, DW13, DW14, DW15 and DW16 to establish that election took place in Ezeagu L.G.A. The evidence of DW19 and DW22 confirmed that election took place in Oji River Local Government Area. The tribunal wrongly rejected the report of the Justice Development and Peace Commission an accredited observer for the April 12, 2003 election. The tribunal consistently acted in a manner prejudicial to the case of the appellant and thereby came to a perverse decision that resulted in a travesty of Justice and denial of the appellant’s constitutional right to fair hearing. The appellant cited the cases of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419 at 444; FCSC v. Laoye (1989) 2 NWLR (Pt.106) 652 at 661-662; Thompson v.Arowolo (2003) 2 SC 109 at 122-125, (2003) 7 NWLR (Pt.818) 163.
The 1st respondent replied that at pages 409-412 of the record the Tribunal specifically dealt with the testimonies of PW5, PW 10, PW12, alongside those of DW1, DW2, DW3, DW4, DW6, DW7, DW8, DW10, and DW21 before arriving at its conclusion as to whether voting took place in certain numerous polling stations and collation centres within Enugu West Senatorial District. The Tribunal compared exhibits 1-7 with exhibits 24-25 before arriving at the conclusion that the appellant did not prove its case with regard to Aninri L.G.A. Senatorial Zone, at pages 415-416 the Tribunal considered Awgu L.G.A. Senatorial Zone where the allegations averred were not substantiated with evidence. At pages 416-418 the Tribunal compared the testimonies of PW1, PW11, PW13, PW19 and PW21 against the testimonies of DW17, DW18, DW20 and DW23 with voter cards tendered and found against the appellants.
The Tribunal compared the evidence of PW3, PW18, and PW20 with the corresponding testimonies of DW19 and DW22, before deciding on whether free and fair election was held in the Oji River LGA. Senatorial Zone at pages 418-423 of the record.
At pages 424-429 of the record, the Tribunal compared the testimonies of DW11, DW12, DW13, DW14, DW15, DW16 and DW20 with those of PW6, PW15 and PW16 before the lower Tribunal calmly soundly and dispassionately arrived at its finding on the disputed facts with regard to Ezeagu LGA Senatorial Zone. The record shows that the appellant was awarded the opportunity to present his case in accordance with the constitutionally guaranteed right to fair hearing. The appellant failed to establish bias by the tribunal by cogent evidence. The testimonies of defence witnesses as they voted, production of exhibits 20-33, and 8-19 raises very strong presumption in proof that the respondent was duly and validly returned.
The appellant and his witnesses did not tender any voter’s card, to show that they were eligible to vote but could not. Further, the appellant and his polling agents did not tender the voter’s register to substantiate the alleged but disputed fact that voting did not take place. The tribunal considered the issue of the admissibility of rejected on page 78 of the record. The court should resolve this issue against the appellant. The inconsistence raised were not pleaded, the tribunal did not have the opportunity to test the complaints on evidence. On the issue of the report marked – Rejected A- wrongful rejection would only have an effect if it has occasioned a miscarriage of Justice. The alleged perversion in the Tribunal’s verdict has therefore not been identified. The court is to dismiss the appeal as no cogent or persuasive arguments to fault the judgment of the Tribunal. The respondents cited the cases of Ekpoke v. Usilo (1978) 6-7 SC 187; Adaje v. The State (1979) 6-9 SC 18; Shopitan v. Ogunlewe (1961) WRNR 119.
I have read through the relevant evidence in the record of proceedings of the Election Petition Tribunal in the National House of Assembly Election, Enugu. I have examined the pleadings of the parties, the vital documents relevant to the election to the House of Assembly, Enugu West Senatorial District held on the 12th of April, 2003, the controversial judgment of the Tribunal delivered on the 31st day of March, 2004 and the briefs of the parties in this appeal.
All that is required of this court is to give a dispassionate examination to the judgment of the tribunal in the con of the submission of the learned counsel and consequently express the views of this court in line with the four issues settled for determination in this appeal. I am however mindful of the fact that in determining whether or not an election was conducted substantially in accordance with the constitution and the Electoral Act 2002, the court will look at, in the circumstance of the case, including the state of the pleadings especially the credibility of the petitioner’s case, the nature and substance of the complaint of the petitioner, the attitude of functionaries charged with the conduct of the election and whether the omissions complained of by the petitioner even if proved actually affected the conduct of the election. Okoroji v. Ngwu (1992) 9 NWLR (Pt.263) at 113.
I shall repeat for the sake of emphasis that the appellant scored 5,607 votes and the 1st respondent scored 237,141 votes at the polls, hence, the 1st respondent was returned by INEC as having scored the majority of lawful votes cast at the election. The grounds relied upon in the petition are three fold. Firstly that the election was fraught with intimidation, thuggery, irregularities, and violence and such like criminal acts perpetrated by the agents of the 1st respondent. Second is non-compliance with the electoral and INEC guideline by its officials, that the election was not free and fair, as people were not allowed to vote, as materials for voting were not made available promptly at the polling booths, results of the votes cast were not properly entered in all the requisite forms at the polling stations and collation centres, collation did not take place at prescribed collation centres, and that the collated results were not recorded in the prescribed forms throughout the Enugu West Senatorial District on the 12th of April, 2003 General Elections. Lastly, that the 1st respondent did not score the majority of lawful votes cast at the election. It is most appropriate at this juncture to remark that the procedure in an election petition is largely governed by a law made especially to regulate the proceedings. The jurisdiction of an election tribunal to deal with election functions is of very special nature different from that in ordinary civil case. It is plain that the proceedings are special for which provisions are made under the Constitution. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise either could be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. An election petition is neither seen as a civil proceeding in the ordinary sense nor a criminal proceeding. It can be regarded as a proceeding sui generis. Thus, it is imperative that in this petition before the lower tribunal and this court, the procedure laid down in the Electoral Act must be strictly complied with and the guidelines in the manual for election officials. Buhari v. Yusuf (2003) 14 NWLR (Pt.841) at 446 SC; Abubakar v. INEC (2004) 1 NWLR (Pt.854) at 207; Samamo v. Anka (2000) 1 NWLR (Pt.640) at 283.
Under a system of civil law, the burden is on the party alleging the commission of an offence to prove the allegation. By the same token the standard of proof of election offences like other offences must be beyond reasonable doubt.
Ezike v. Ezeugwu (1992) 4 NWLR (Pt.236) at 462; Etuk v. Isemin (1992) 4 NWLR (Pt.236) at 402; Opia v. Ibru (1992) 3 NWLR (Pt.231) at 658; Na-Bature v. Mahuta (1992) 9 NWLR (Pt.263) at 85; Nnachi v. Hon. Ibomu & Ors. (2004) 1 ERR 786, (2004) 16 NWLR (Pt.900) 614.
I shall now consider the issue for determination serially. Issue No. one challenged the admissibility of documents not specifically pleaded, and whether such act of the tribunal did not occasion a miscarriage of justice. The documents under reference are exhibit 20-22 and 24-33- forms EC8A-E which the appellant alleged, were neither pleaded in the respondent’s reply to petition nor tendered any carbonized counterpart copies of the original form EC8A-E. The appellant contended that unless the respondents specifically pleaded these exhibits, the tribunal cannot admit same and if they were inadvertently allowed to be tendered or admitted, such documents would go to no issue and same should have been expunged from records. This relates to the issue of pleadings in an electoral matter, pleadings in election petitions are like pleadings in civil matters.
The functions of pleadings in an election petition are
(a) To inform the other side of the nature of the case, he is to meet in order to be prepared for same as distinguished from the mode in which the case is to be proved.
(b) To prevent the other side from being taken by surprise and to save unnecessary expense.
(c) To enable the opponent to know what evidence he ought to prepare for the trial.
(d) To limit the generality of the pleading or of claim or of the evidence.
(e) To limit and define the issues to be tried and as to which discovery is required.
(f) To tie the hands of the party so that he cannot without leave of court go into matters not formally included therein – Yar’Adua v. Barda (1992) 3 NWLR (Pt.231) at 638.
In an election petition document or information which the court can take judicial notice of need not be pleaded or proved by virtue of section 73 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. Under section 74 of the same Act, facts which the 8 court can take judicial notice of were enumerated. The court can take judicial notice of the Electoral Act, 2002 under this Law, by irtue of section 74(2). In the cases to be judicially noticed under section 74(ii), the court may resort for its aid to appropriate books or documents of reference. All forms to be used in the conduct of elections referred to in sections 54 and 67 of Electoral Act 2002, shall automatically become documents of reference. Forms EC8A-E exhibits 20-33, result forms under reference were used in connection with the conduct of the election into the office of Senator-Enugu Senatorial District, mentioned in section 15 of the Electoral Act. Furthermore, it is a basic principle of pleadings that only material facts and not evidence in proof of such facts are permitted to be pleaded. There are instances when documents which are material must be pleaded as opposed to documents which are not material. Where series of documents are relied upon, it is always necessary to distinguish those which constitute material facts from those that are mere evidence to establish facts in issue. Documents which have the former effect must be pleaded, while those of the latter need not be pleaded. Hashidu v. Goje (2003) 15 NWLR (Pt.843) at 352; Adugbe v. Onyisue unreported Appeal No. ECA/B/46/78 of 13/779. At pages 183, 184, 185, 187, 192,193, 198, 200, 201 and 203 of the record, the tribunal overruled the objection into the admissibility of exhs. 20-33, which exercise I consider, cannot be faulted.
The objections were well considered. Exhs. 20-33 were properly admitted, in the light ofthe testimonies of the respondents’ witnesses as based on material facts duly and sufficiently pleaded, and put before the tribunal. The respondents pleaded material facts that –
(1) Voting took place.
(2) Votes were counted and recorded in the prescribed forms.
(3) Collation took placed at all collation centres.
(4) Collated results were recorded in the prescribed forms. vide section 54 of the Electoral Act, 2002.
Exhibits 20-33 Result Forms are documents of reference to establish these facts in 1-4 above. Paragraphs 3, 4, 6, 8, 9, 10, 13, 18 and 20 of the joint reply to petition, the reply of the 1st respondent pleaded material facts of the actual votes recorded in the Result Forms exhs. 20-33, these in the view of this court satisfy all the legal requirements of admissibility. Issue one is resolved in favour of the respondents.
In issue No.2, the appellant argued that acting upon unpleaded material facts tendered and admitted as exhs. 20-22 and 24-33, the scores are inconsistent and unreliable. The tribunal was therefore in error when they acted upon and heavily relied on exhs. 20-22 and 24-33, to hold that the 1st respondent has won by a majority of lawful votes. In coming to this conclusion, the tribunal preferred the evidence of the respondents and their witnesses to the evidence of the appellant and their witnesses. The appellant viewed any conclusion reached by the tribunal in the circumstance as perverse.
Reasons are as follows:
(1) The appellant found material inconsistencies and contradictions in the documents exhs. 20-22 relating to Ezeagu LGA. of Enugu State.
(2) Tribunal failed to make findings in respect of exh. 24-25 relating to Aninri LGA. of Enugu State.
(3) The Tribunal failed to consider the inconsistencies in exhs. 26-26 (19) relating to Oji river LGA.
(4) Tribunal failed to evaluate and make findings in respect of exhs. 27-27(10) affecting Agwu LGA.
(5) The Tribunal failed to consider inconsistencies in exh. 33 affecting collation of the results in Enugu West Senatorial District.
(6) The Tribunal relied on hearsay evidence to give credence to exhs. 29 and 33.
It is glaring from the record that in evaluating and coming to its conclusion relying on the exhs. 20-33 admitted in evidence, the tribunal compared exhs. 1-7 tendered by the appellant, with exhs. 20-33, and also attached weight to the oral testimonies of all witnesses and their demeanor. The tribunal preferred the case of the respondents to that of the appellant. Vide pages 261-289, 312-315, of the record of proceedings. The law is elementary that an appellate court cannot ordinarily interfere with the findings of fact of a trial court merely because it should have arrived at different findings if it were in the trial court’s position. Since an appellate court has not the eyes and ears of a trial court, it cannot deviate from the findings of a trial court unless such findings are perverse or not borne out from the evidence before the court. In the instant appeal since the findings of the tribunal are consistent with the evidence led by the witnesses, the Court of Appeal cannot interfere with them. Na-Bature v. Mahuta & Ors. (1992) 9 NWLR (Pt.263) at 85; Ekpenyong v. Nyong (1975) 2 SC71; Fafoyinbo v. Williams (1956) SCNLR 274; Ezike v. Ezeugwu (1992) 4 NWLR (Pt.236) at 462; Lawal v. Dawodu (1972) 1 All NLR (Pt.2) at 270; Klldll v. Aliyu (1992) 3 NWLR (Pt.231) at 615.
A trial court has discretion to accept or reject any evidence tendered before it. But in taking a decision to accept or reject any such evidence, it is expected that it must act judiciously and judicially. Once such decision is rightly made, it is not the business of appellants to tamper with the decision by substituting his own discretion for that of the court. Azudibia v. Ogunewe (2004) FWLR (Pt.205) at 289.
There is no legitimate ground for this court to disturb the findings of the tribunal. Second issue is resolved in favour of the respondent.
On the third issue, the appellant conceded that it is settled law that he has the burden of proving what he has pleaded by virtue of section 137(1) of the Evidence Act, 1990. He admitted that he pleaded and tendered carbon-copies of the election and results recovered from his agents and signed by presiding officers as exhibits 1-7 before the tribunal. He submitted that these exhibits were best to test the veracity of the parties’ contention on what were infact the actual scores made by the contending parties. All the respondents did not specifically plead the election result forms. It has to be specified that proof of an election malpractice or irregularity or misconduct depends on the nature of the conduct complained of, where the allegation is simply that of some wrong-doing, its proof would be on preponderance of evidence. Where the allegation borders on criminality, the standard of proof is surely beyond reasonable doubt. By the very nature of election cases, evidence alleging election malpractice or irregularity must not only be precise and definite but must also be unequivocal and certain. A vague and instead evidence alleging election malpractice or irregularity cannot be accepted by a tribunal or court of law. Where an appellant and his witnesses tried to establish that the election was aborted due to intervention of thugs who took away electoral materials, and an allegation that materials arrived late and as such election did not start on schedule, the general rule is that onus is on the appellant to prove that there were such malpractices and non-compliance which prevented him from winning the election. Furthermore, a petitioner who alleges in his petition a particular non-compliance must satisfy this court that the non-compliance is substantial and affects substantially the result of the election.
Kudu v. Aliyu (1992) 2 NWLR (Pt.231) at 615; Nnachi v. Hon. Ibom & Ors. (2004) 16 NWLR (Pt.900) 614, (2004) 1EPR. 785. Thuggery and violent disruption of election are criminal acts. There must be established nexus between the perpetrators and the 1st respondent by credible evidence. It must be shown that the act adversely affected the conduct of the election and further that the act substantially affected the result of the election. Oyegun v. Igbinedion (1992) 2 NWLR (Pt.226) at 747; Ebebe v. Ezenduka (1998) 7 NWLR (Pt.556) at 74; Ayua v. Adasu (1992) 3 NWLR (Pt.231) at 598; Azudibia v. Ogunewe (2004) FWLR (Pt,205) at 289; Balami v. Bwala (1993) 1 NWLR (Pt.267) at 51. The allegation that results were not collated at collation centres where they should have been so done.
In the foregoing, evaluation of evidence falls within the realm of the trial tribunal, the appellate court can only interfere where such evaluation is perverse or shows a misapprehension of the facts or occasioned a miscarriage of justice. In the case on hand, the appellant has not succeeded in showing any perversion in the finding of the lower tribunal. It is also a misconception by the appellant to hold that the respondents failed to produce the voter’s registers and the carbon copies of EC8A. The return of the 1st respondent raises in favour of all the respondents the presumption of regularity and correctness of the result so declared. It is therefore not incumbent on the respondents to tender evidence in proof of the due return of the 1st respondent in the circumstance.
Where the petitioner fails to rebut the presumption in favour of due return, his petition must fail. Remi v. Sunday (1999) 8 NWLR (Pt. 613) at 92; Imar v. Malarima & Ors. (1999) 3 NWLR (Pt, 596) at 545.
Issue Three is hereby resolved in favour of the respondent.
In issue four, the appellant contended that because of the over-all non-consideration and non-evaluation of his evidence and those of his witnesses PW.1- PW.21, he was denied of the opportunity of fair hearing. I have earlier on considered the appellants connotation of fair hearing going by the cases of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt,98) at 419; FCSC v. Laoye (1989) 2 NWLR (Pt.106) at 652. The complaint of the appellant clothed in the doctrine of fair hearing is bias in the evaluation and consideration of the evidence of witnesses of the parties and the findings of the tribunal.
The appellant referred to the rejection of the report of a neutral body B like the Justice, Development and Peace Commission, an accredited election observer for the senatorial election. It is my observation that the issues of inconsistencies were neither pleaded nor raised before the lower tribunal. I have to remark that a party discharges the burden of proof at the trial of the action and not through arguments in his appeal. What an appellate court should examine in determining the strength of the case of an appellant by way of proof is the record of proceedings. While a party in his brief of argument may strengthen the position of the law, it cannot manufacture evidence not given at the trial. Na-Bature v. Mahuta (1992) 9 NWLR (Pt.263) at 85.
The tribunal in considering the important issues for deliberation, before making its findings on the disputed facts like:
(a) Whether or not voting took place in certain numerous polling stations within the Enugu Senatorial District.
(b) Whether collation took place in certain collation centres within Enugu Senatorial District, ealt with testimonies of PW5, PWI0, and PW12 and compared same with the testimonies of DW1-DW10 and DW21. Vide pages 409-412 of the record.
The tribunal compared exhibits 1 – 7 tendered by the appellant with exhs. 24-25 tendered by the respondents in considering the allegations raised in Aninri LGA. Vide pages 412-413 of the record. The tribunal compared the testimonies of PW1, PW11, PW13, PW19 and PW21 against DWI7, DWI8, DW20 and DW25 with the voter’s card tendered to determine whether voting took place in some polling stations. Vide pages 416 – 418 of the record. Evidence of PW3, PW18 and PW20 were compared with DW19 and 22 to determine whether the election was free and fair at Oji-River LGA. Vide pages 418-423 of the record evidence ofPW6, PW15 and PW16 were compared with those of DW11-DW16 and DW20, to determine the allegations raised at Ezeagu LGA in the Enugu West Senatorial district. Vide pages 424-429 of the records. These contentions that the appellant was not accorded reasonable opportunity of being heard or any breach of the doctrine of fair hearing was unfounded. The appellant also failed to establish the allegation of bias against the tribunal on the over-all evidence. The issue four is resolved in favour of the respondents. By way of closing remarks, evaluation of evidence and ascription of probative value to same before making findings effect by a Judge is the live issue in a judgment. The decision of the tribunal was based on the evidence of witnesses of both parties.
The tribunal expressed its opinion on the quality of the evidence of witnesses before exercising its discretion in the petition. The attitude of the appellate court where evaluation of evidence and findings of fact are based on credibility of witnesses as in this case is that credibility of a witness is a matter for a trial court and not for an appellate court. The witness is seen by a trial court whereas appellate court only reads evidence of the witness from the printed record and it is not in a position to determine the credibility of the witness. Demeanour is one vital area of credibility and the only person who sees and watches the demeanour of the witness is the trial Judge. It is within the exclusive role of a trial Judge to watch the mannerism, habits and idiosyncrasies of the witness and attach probative value to the evidence presented to him. The tribunal in this case had discharged these duties creditably well. It is not open to the Court of Appeal, which did not have the opportunity of observing the witnesses to make important findings based on credibility of witnesses. Sanni v. Ademiluyi (2003) 3 NWLR (Pt.807) at 381; Eya v. Qudus (2001) 15 NWLR (Pt.737) at 587.
In the final analysis, the appeal is unmeritorious and it is accordingly dismissed. The judgment of the lower tribunal is affirmed. N10,000 costs to the respondents.
Other Citations: (2004)LCN/1640(CA)
