Dr. Christopher Ogbonnaya Onu & Anor V. Chief Martin Elechi Nwancho & Ors (2008)

LawGlobal-Hub Lead Judgment Report

ADAMU JAURO, J.C.A.

The gubernatorial elections were conducted nationwide, Ebonyi State inclusive by the Independent National Electoral Commission (INEC) on Saturday, the 14th day of April, 2007. The 1st Appellant contested the said election for the Governorship of Ebonyi State, under the platform of the 2nd Appellant, All Nigeria Peoples Party (ANPP). The 1st respondent on the other hand, vied for the same office under the platform of the 2nd respondent, Peoples Democratic Party (PDP). The Independent National Electoral Commission (hereinafter simply referred to as “INEC”) the 3rd respondent and its agents who are the remaining other respondents namely 4th to 3714th respondents, conducted the said election. The 1st appellant and the 1st respondent contested the said election along with 13 other candidates fielded by other political parties that participated in the said election.

Upon the conclusion of the election, the 1st respondent was declared and returned as the winner of the election with 560,444 votes by the 4th respondent. The 1st appellant scored total of 28,579 votes. The result of the election as declared by the 4th respondent as contained in paragraph 8 of the petition is as follows:

“1. ANTHONY AKAM OKA (APGA) 1,868

2. EMEKA NWANKWO (NDP) 751
3. CHRISTOPHER OGBONNAYA ONU (ANPP) 28,579
4. HENRY CHIMA UDEH (PPA) 3,186
5. BASI AKPA OBASI (AC) 2,728
6. ULYSSES KALU IBIAM (DPP) 1,069
7. EREKE FELIX NWEKE (RPN) 534
8. ESTHER NWODO AGBO (PRP) 283
9. MOSES UMBA (FRESH) 440
10. CHARLES OKWURU (MRDD) 1,279
11. OBASI GODWIN OGBA (ADC) 2,287
12. INNOCENT O.C. OGBOJI (PAC) 1,767
13. MARTIN ELECHI NWANCHO (PDP) 560,444
14. NWACHUKWU SUNDAY (BNPP) 352
15. CHRISANTHUS CHUKWUMA (NNPP) Nil.”

Aggrieved and distressed by the declaration and return of the 1st respondent as Governor of Ebonyi State, the appellants as petitioners filed in their petition dated 9th May, 2007 on 12th May, 2007 at the Governorship and Legislative Houses Election Tribunal for Ebonyi State, sitting at Abakaliki. The grounds upon which the petition was anchored as contained in paragraph 9 of the petition on page 80 of Volume 1 of the records is as follows:-

“The ground upon which this petition is brought is that the governorship election held in Ebonyi State on the 14th April was invalidated in all parts of the State except in:

a. Afikpo North LGA; in Uwana Ward I, Polling Units 004, 005, 007; in Uwana ward II, Polling Units 004; in Nkpoghoro ward, Polling Units 001, 003, 005, 006, 008, 009, 010, 011, 012, and 013; in Ohaisu ward-A, Polling Units 001, 002, 003, 004 005, 007, 008; in Ohaisu ward-B, Polling Units 001, 002, 003, 006, 007, 008, 009; in Ugwuegwu ward, Polling Units 003, 006, 007, 008, 009, 011, 012; in Amasiri ward-A, Polling Unit 001; in Amasiri ward-B, Polling Units 001, 003, 006, 008, 010.

b. Abakaliki LGA; in Abakpa ward, Polling Units 001, 002, 004, 005, 006, 007, 008; in Timber Shed ward, Polling Units 001, 002, 003, 004, 006, 007, 008, 009, 010; in Azuiyiudene ward, Polling Units 001, 002, 003, 004, 005, 006, 007, 008, 010, 011, 012, 013; in Azuiyiokwu ward, Polling Units 001, 002, 003,004,005,006,007,009,010; in Ndiagu ward, Polling Units 002, 003, 004, 005, 006, 007, 008 009, 010, 011, 0112, 013, 015, 016; in Azumini Azugwu ward, Polling Units 006, 008

c. Ebonyin LGA; in Urban New Layout ward, Polling Units, 001, 002, 003, 004, 007, 009; in Kpirikpiri Ward, Polling Units 001,002,003,004,005,007, 008; in Abakpa ward, Polling Units 001, 002, 005, 006,009.

d. Ivo LGA; in Amaeze ward, Polling Units 001,004, 005,008; in Amonye ward, Polling Units 001, 002, 003, 004, 005, 006, 008; in Amagu ward, Polling Units 005, 006, 007, 008; in Obinagu ward, Polling Units 001,002,003,004,007, 008; in Ndiokoroukwu ward, Polling Units 001,007; in Ngwogwo ward, Polling Units 003, 004, 005, 006

e. Onicha LGA; in Ishinkwo Ukawu ward, Polling Units 001, 004, 005, 007, 008, 009, 010

f. Ezza North LGA; in Inyere ward, Polling Units 001,002,004,005 by reason of:

a. corrupt practices, and

b. non-compliance with the provisions of the Electoral Act 2006

IN THE ALTERNATIVE.

a. the 1st respondent was not elected by a majority of lawful votes case at the election and his election is void.”

The facts in support of the aforesaid grounds are contained in paragraph 10 of the petition on pages 80 to 101 of volume one of the records.

In concluding, the appellants as petitioners in paragraph 23 of the petition prayed the tribunal for the following reliefs:

“i. A declaration that the Governorship Election purportedly conducted by the 1st and 2nd respondents through the 5th to the 3,714th respondents on 14th April, 2007 in Ebonyi State excepting as tabulated in paragraph 8 of this petition was marred by corrupt practices and substantial non compliance with the Electoral Act 2006.

ii. A declaration that the 1st respondent was not Elected by a majority of lawful votes cast at the Governorship Election which took place in Ebonyi State on 14th April, 2007.

iii. A declaration that the 1st petitioner had scored a majority of valid and lawful votes cast in the Governorship Election held in Ebonyi State on 14th April, 2007 and ought to be returned as winner thereof.

iv. A order of the Tribunal on the 4th respondent to declare the 1st petitioner the winner of the Governorship Election held in Ebonyi State on 14th April, 2007, having scored a majority of valid/lawful votes cast in the said election.

IN THE ALTERNATIVE

i. An order of the Honourable Tribunal canceling/nullifying the entire governorship election conducted by the 3rd respondent in Ebonyi State on the 14th day of April, 2007, the said election having been marred by brazen electoral malpractices, corrupted practices and violence.

ii. An order of the Honourable Tribunal on 3rd respondent to conduct a fresh Governorship Election in Ebonyi State.”

Upon being served the petition, all the respondents filed in their respective replies debunking the allegations contained in the petition. The respondents further contended that the 1st respondent was duly elected by a majority of lawful votes cast in a free and fair election devoid of any corrupt practices and conducted in substantial compliance with the Electoral Act 2006. Consequently they urged the tribunal to refuse the reliefs sought, dismiss the petition and affirm the declaration and return of the 1st respondent. On settlement of pleadings and in line with the Election Tribunal and Court Practice Directions 2007 the petition proceeded to pre hearing stage. In the course of pre-hearing numerous application were taken and disposed off, and hearing commenced in earnest on 17th September, 2007. In the course of hearing, petitioners called 46 witnesses and tendered 305 exhibits while the respondents called 13 witnesses in rebuttal. At the conclusion of proceedings written address were ordered and adopted. In its judgment delivered on 29th November, 2007, the tribunal dismissed the petition in its entirety, for failure to establish the grounds upon which the petition was based.

Dissatisfied with the decision, the appellants filed in this appeal against the judgment of the Governorship and Legislative Houses Election Tribunal Ebonyi State delivered on 29th November, 2007 in respect petition No. EPT/EBS/GOV/AB/2/2007. The notice of appeal dated 14th December, 2007 and filed on 15th December, 2007 contained 23 grounds. The said grounds shorn of their particulars are hereby reproduced thus:-

“GROUND ONE

The Honourable Justice of the Tribunal erred in law when they held that the first issue for determination was whether there was Governorship election in Ebonyi State on the 14th of April, 2007.

GROUND TWO

The Honourable Justices of the Tribunal erred in law when they held at page 11 of their judgment as follows:

“In the light of the strong and uncontradicted evidence of witnesses for the Respondents, the Tribunal is minded to hold, and hereby holds that elections were held in all the Local Government Areas in Ebonyi State, except Ohaozara.

The Tribunal therefore finds as a fact that there was Governorship election in Ebonyi State”

GROUND THREE

The Honourable Justices of the Tribunal erred in law when they held at page 13 of their judgment as follows:-

“As observed earlier, the fundamental aspect of this issue bothers on allegations of Electoral Malpractices and therefore criminal in nature under the Electoral Act. The question now becomes: Has the Appellants proved these appellations of crime beyond reasonable doubt as they are bound to do in law? Here reference must once again be made to the pleadings and evidence led thereon”

GROUND FOUR

The Honourable Justices of the Tribunal erred in law when they held at page 14 of their judgment as follows:

“The tribunal had, in its statement of issues No.1, identified copiously a series of contradictions and conflicts between the evidence of most of the witnesses, and the facts pleaded in the petition in this area … This apart, the Respondents have in their various pleadings and evidence vehemently denied these allegations of the Appellants. The evidence led by the Appellants and their witnesses in proof of these allegations fell falls far below the required proof”

GROUND FIVE

The Honourable Justices of the Tribunal erred in law when they held at page 14 of their judgment as follows:

“There is no provision in the Electoral Act 2006 denoting that stamping, signing and dating of voter’s card are proof of voting. By virtue of section 50 of the Electoral Act 2006, the issue of whether a voter cast his vote is only ascertainable by examining the voters’ register to ascertain whether the person’s name as been marked as been marked as having voted. The fact is not ascertainable on the voter’s card”

GROUND SIX

The Honourable Justices of the Tribunal erred in law when they held at page 11 of their judgment as follows:

“The evidence of PW1, PW2, PW4 PW5 and PW6 in their various depositions which they adopted in their oral evidence tendered as exhibits 1, 3, 7, 9 and 11 alleged that there were no voting, and people waited and dispersed in their various wards of Ekawoke in Ikwo LGA, Ndufu Achara in Ikwo LGA, Inyima Agu ward II in Ikwo LGA and Ezeagu ward II, in Ishielu LGA. All these evidence run contrary to the pleadings that the electoral materials that arrived those wards were hijacked by PDP Supporters”

GROUND SEVEN

The Honourable Justices of the Tribunal erred in law in failing to nullify the election of the 1st Respondent on the ground that there was substantial non-compliance with the Electoral act in the conduct of the election.

GROUND EIGHT

The Honourable Justices of the Tribunal erred in law in not nullifying the results and the election purportedly held in Ohaukwu LGA, Ikwo Local Govt. Area, several wards and polling units in Abakaliki, Afikpo South. Afikpo North, Ebonyi, Ishielu, Ezza South, Izza and Onicha Local Govt. Areas.

GROUND NINE

The Honourable Justices of the Tribunal erred in law when they held at page 19 of their judgment as follows:

“PW43 was Rev. Father Cornelius Chikadibia Chukwu, the Coordinator Justice Development and Peace Commission, a non-governmental organization, and testified that his organization was accredited as an independent observer of the Governorship Election by the third respondent. He testified that his organization appoints field officers for the observation of the elections and that he received reports from the officers who covered the Ezza South, Izzi and Onicha Government Areas and these were tendered as exhibits 68, 69 and 70. He stated that the organization prepared a comprehensive report of their observations in the election and this was admitted as exhibit 71. It is obvious that exhibits 68, 69 and 70 were accounts of what some other persons, not PW43, observed and they were made and signed by those persons. No reason was given for inability of the makers of these documents to attend court to testify and neither did PW43 state or demonstrate that the documents formed part of a continuous record of information he had a duty to keep. The exhibits cannot thus be used by this tribunal to make any findings”

GROUND TEN

The Honourable Justices of the Tribunal erred in law in not nullifying both the results of the elections and the elections purportedly held in Ohaukwu Local Government Area, Ezaa North Local Govt. Area Ikwo Local Govt. Area and Ezza South Local Govt. Area, Abakaliki LGA, Ebonyi LGA having regard to its findings in respect of the said Local Government Areas.

GROUND ELEVEN

The Honourable Justices of the Tribunal erred in law in not nullifying the entire Governorship Election conducted by the 3rd Respondent in Ebonyi State on the 14th of April, 2007.

GROUND TWELVE

The Honourable Justices of the Tribunal erred in law when they held at pages 24 and 26 of their judgment as follows:

“… It is trite that documentary evidence cannot serve any useful purpose without oral evidence explaining its absence … In Alao v Akano (2005) 11 NWLR (Pt. 935) 160, the Supreme Court held that documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport. In Awuse v Odili (2005) 16 NWLR (pt.952) 416 at 482C, the Court of Appeal again held that a party tendering a document before the court must demonstrate by oral evidence the use he proposes to put it and it is not for the court to go on a voyage of discovery or speculation; investigation is not the work of the Court. The entire documents, Exhibit 77 to 305, cannot thus be accorded any probative value by this Tribunal”

GROUND THIRTEEN

The Honourable Justices of the Tribunal erred in law when they held at page 26 of their judgment as follows:

“By the very showing of the Appellants, the tables fall within all the definitions of evidence and being evidence they must be tendered in the course of trial before they can be made part of the address and before this Tribunal can consider them. As rightly pointed out by the Counsel to the third to the three thousand seven hundred and fourteenth Respondents, it is elementary that the address of counsel no matter how brilliant can never amount to evidence”

GROUND FOURTEEN

The Honourable Justices of the Tribunal erred in law when they held at page 27 of their judgment as follows:

“It is clear from the literature in the written address of the Appellants on the purport of the tables that Tables 1, 3, 4, 5, 7, 9, 10, 11, 12, 13 and 14 were concerned with specific acts of non-compliance by the third to the three thousand seven hundred and fourteen respondents with the Manual for Election officials tendered as part of the bundle of documents produced by the officer of the third respondent. This Tribunal has painstaking read through the averments in the petition of Appellants and must say that no where therein were these acts of noncompliance with the Manual for Election officials pleaded. No complaint was made about the non availability of vital electoral materials with the officers of the third respondent on the field on the day of the election except …”

GROUND FIFTEEN

The Honourable Justices of the Tribunal erred in law when they held at pages 28 and 29 of their judgment as follows:

“Counsel to the Appellants submitted that the tables and the documents from which they were generated spoke for themselves without need for any further evidence to explain them. With respect to counsel, his suggestions would only have been possible where the tables and the documents were related to the relevant aspects of the case of the Appellants by a witness of the Appellants in the course of trial but not otherwise. In Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569, the Court of Appeal Per Aikawa, JCA stated at page 590 thus:

“…the correct view of the law is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspect of the case for a party when that party has not himself done so. The foundation of the principle is that it is an infraction of fair hearing for the court to do in the recess of its chambers what a party has not himself done in advancement of his case in the open court”

See also Rotimi v. Faforiji (1999) 6 NWLR (Pt. 606) 305 at 325 and Awuse v. Odili supra. The tables and the documents were not relates to the case of the Appellants in open court”

GROUND SIXTEEN

The Honourable Justices of the Tribunal erred in law when they resolved the Issue NO.2 formulated by the Tribunal namely whether the election was marred by electoral malpractices against the Appellant and in not nullifying the election of the 1st Respondent.

GROUND SEVENTEEN

The Honourable Justices of the Tribunal erred in law when they held at page 11 of their judgment as follows:

“The evidence of PW1, PW2, PW4, PW5 and PW6 in their various depositions which they adopted in their oral evidence tendered as Exhibits 1, 3, 7, 9 and 11 alleged that that there were no voting, and people waited and dispersed in their various wards of Ekawoke in Ikwo LGA, Ndufu Achara in Ikwo LGA, Inyima Agu ward II in Ikwo LGA, and Ezeagu ward II, in ishielu LGA. All these evidence run contrary to the pleadings that the electoral materials that arrived those wards were hijacked by PDP supporters”

GROUNDS EIGHTEEN

The Honourable Justices of the Tribunal erred in law when they failed to consider the contention of the Appellants that the 1st Respondent was declared winner of the election on 14th April, 2007 even before the collation of result was completed on the 15th of April 2007 contrary to the Electoral Act 2007 and that he was thus not duly declared and to nullify the election accordingly.

GROUND NINETEEN

The Honourable Justices of the Tribunal erred in law when they held at page 30 of their judgment as follows:

“In the final result this Petition fails in its entirety”

GROUND TWENTY

The Honourable Justices of the Tribunal erred in law when they held that Table 2 which showed overvoting and thumbnailed the various polling units and the votes affected where over voting occurred no probative value had and would be discountenanced because the issue of overvoting was not pleaded.

GROUND TWENTY-ONE

The Honourable Justices of the Tribunal erred in law when they held as follows:

“…In fact in paragraph 10 of the Reply of the Appellants to rely the three Thousand seven Hundred and Fourteenth Respondents the Appellants admitted that requisite voting materials including Form EC8A were given to each polling unit.

GROUND TWENTY-TWO

The Honourable Justices of the Tribunal erred in law when they held at page 20 of their judgment as follows:

“There was therefore a colossal failure on the part of Appellants to prove the various allegations of crime in this Petition”

GROUND TWENTY THREE

The judgment is patently against the weight of evidence.

In line with the rules of court, the learned senior counsel representing parties to this appeal filed and exchanged their respective briefs of argument. The 1st Respondent and 3rd, 4th and 3714 respondents raised preliminary objections to the appeal. On the date fixed for hearing the appeal being 2nd June, 2008, the two preliminary objections were argued as well as briefs of argument adopted. Learned senior counsel for the Appellants Prof. B. O. Nwabueze SAN, identified his brief which he said was filed on 23rd May, 2008 and adopted same. The learned senior counsel stated that there was no appellants reply brief filed as there was no time to do so. By way of adumbration and reply to the preliminary objection, learned senior counsel submitted that the summary of arguments are on pages 58-59 of the brief, while reliefs sought are at pages 59-60. In reply to the objection of the 1st Respondent, learned senior counsel submitted that issue ‘D’ in his brief of argument was argued in Paragraphs 5.16 and 5.17 of the brief. In further reply it was contended by the learned silk, that Order 17 of the Court of Appeal Rules 2007 has not made it a requirement that issues for determination must be linked or identified to a particular ground. Furthermore, the learned senior counsel submitted that the attack on his grounds of appeal as being argumentative and verbose should be discountenanced as they are not good reasons for rejecting a ground of appeal. As to the objection of the 3rd, 4th and 3714 respondents learned senior counsel adopted his earlier submission as a reply to their objection. In concluding learned senior counsel urged the court to discountenance the objections, allow the appeal and grant the reliefs sought.

Dr. J.O. Ibik SAN for the 1st respondent also identified his brief as having been filed on 2nd June, 2008, and adopted same. Learned senior counsel also relied on paragraph 3 of his brief containing his preliminary objection he urged the court to uphold the objection and dismiss the appeal. The learned counsel for the 2nd respondent, Mr. G. Offodile Okafor OON, SAN, having withdrawn his earlier brief filed on 28th April, 2008 and same struck out, identified the new brief dated and filed 2nd June, 2008 and adopted same. Learned senior counsel further submitted that grounds 18, 19, 20 and 21 of the grounds of appeal have been abandoned as no arguments or issues were raised from them. In support of this contention reference was made to the case of Adisa V State (1991) 1 NWLR (Pt. 168) 490 at 503-504. Learned senior counsel further contended that there is no appeal against the finding of fact in respect of voters register produced by a witness PW46 and marked exhibits 77 to 305, and there was no evidence on them as they were only dumped. Consequently learned senior counsel contended that the Tribunal was right in not according any value to them. In concluding, learned senior counsel contended that the reports of the observer groups are not evidence and there was no evidence to support the petition, hence he urged this court to dismiss the appeal.

Learned senior counsel for the 3rd, 4th and 3714 respondents, Dr. Ejike Ume SAN applied to withdraw his brief filed on 21st February, 2008 and same was accordingly struck out. Thereafter the learned silk identified his current brief dated 30th May, 2008 and filed on 2nd June 2008 and adopted same. The learned silk contended that there is no reply to his preliminary objection and same should be upheld and sustained. Learned senior counsel in further adumbration submitted that there is no evidence to support the petition and the judgment of the tribunal is almost impeccable. Hence he urged this court to dismiss the appeal.

A convenient starting point for the consideration of this appeal is to consider the preliminary objections rose. Hence a consideration will now be made of the preliminary objection, starting with that of the 1st respondent. The preliminary objection was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007 and arguments in respect thereof are preferred in paragraphs 3.1a to 3.1f on pages 4 to 5 of the 1st respondent’s brief of argument. The first ground of the objection is that the appellants brief contravened paragraph 5 of the Practice Direction NO.2 of 2007 in that it is profuse and ought to be discontented. In response learned senior counsel for the appellant contended that the fact that a brief is profuse is not a ground to discountence it. On this ground, I wish to state that however bad or clumsy a brief is, it has to be considered in the interest of justice. See Adeosun V. Jibesin (2001) 11 NWLR (Pt. 724) 290 Obiora V. Osele (1989) 1 NWLR (Pt. 97) 279 and Akpan V State (1992) 6 NWLR (Pt. 248) 439. Consequently this ground of the objection therefore fails and it is hereby dismissed.

The next ground of the objection is on issue ‘F’ that it has failed to disclose the grounds of appeal from which it was distilled. The said issue is contained on pages 7 and 45 to 48 of the appellants brief. The response of the learned senior counsel for the appellants is that Order 17 of the Court of Appeal Rules 2007 has not made it a requirement that issues for determination must be identified to the grounds. It is indeed true that Order 17 of the rules has not made a provision to that effect, but it is trite that any issue for determination not distilled from the grounds of appeal is incompetent and liable to be struck out. See Eke V Military Administrator Imo State (2007) 13 NWLR (Pt. 1052) 531, Aladefo V. Nwapi (2007) All FWLR (Pt. 375) 591, Idika V. Uzoukwu (2008) 9 NWLR (Pt. 1091) 34 at 63 and Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134. Consequently issue ‘F’ not having been distilled from any ground of appeal is incompetent and accordingly struck out. On issue ‘D’ learned senior counsel for the 1st respondent contended that it only evasively referred to ground 7 and other grounds. Learned senior counsel argued that it has not stated that other grounds and no arguments were canvassed on it. In response learned senior counsel for the appellants stated that arguments in respect of the issue are contained in paragraphs 516 and 517. Issue ‘D’ having been identified at least to a ground i.e. ground 7 and arguments in respect of it canvassed in paragraphs 516 and 517, it is therefore competent and the objection on it is overruled. The objection on Issue ‘C’ has no merit and it is also overruled. The objection as to the abandoned grounds succeeds. Consequently grounds 13, 14, 15, 18, 19, 20 and 21 not having been identified in any of the issues are deemed abandoned and accordingly struck out.

The last limb of the 1st respondent’s objection is on grounds 7, 8, 10 to 21 and 22 of the grounds to the effect that they are incompetent on grounds of being prolix, verbose and argumentative. In response learned senior counsel for the appellants contended that the objection should be discountenanced as grounds cannot be rejected for being verbose or argumentative. The fundamental objective of grounds of appeal is to notify the other party of the nature of the case he will meet in the appellate court. Once what the appellant is appealing is discernible, it may not be desirable to strike out the grounds of appeal as doing so will amount to denial of right of appeal and fair hearing as enshrined in Section 36 of the Constitution. See Ogboru V. Ibori (2006) 17 NWLR (Pt. 1009) 542 and ANPP V. R.E.C. Akwa Ibom State (2008) 8 NWLR (Pt. 1090) 453. Consequently this objection is devoid of merit and hereby overruled. The 3rd, 4th and 3714 INEC respondents also urged this court to dismiss the appeal based on their objection, on the ground that the petition contained incongruous prayers and therefore incompetent. Admittedly and without waste of time, the prayers in the petition may be incongruous but this court being the last court in such election matters, a consideration of the appeal will be made on the merit. Having resolved the objections, the coast is now clear for considering the appeal.

The appellants identified seven issues for determination from the 23 grounds of appeal filed. The issues were styled or numbered (A) to (G) as follows:-

“ISSUE A: Whether the Tribunal’s formulation of the issues for determination is not so fundamentally erroneous in law as to vitiate the entire Judgment (Grounds 1, especially particulars listed as (e) and 3)

ISSUE B: Whether the Judgment is not vitiated by the decision that “there is therefore a colossal failure on the part of the Petitioners to prove the various allegations” of noncompliance with the provisions of the Electoral Act 2006, in particular, the decision that every electoral malpractice is “criminal in nature” and requires to be proved by evidence which not only established it beyond reasonable doubt but which is also unequivocal and certain” and which, furthermore, proves that it is “substantial … and in fact prevented him, the petitioner, from winning the election”, at pages 13, 20 and 29 of the Judgment – emphasis supplied (Grounds 3, 4, 5 and 12).

ISSUE C: Whether the governorship election in Ebonyi State on 14 April, 2007 is not invalidated by the fact that it did not conform to fundamental principle of free, fair and credible election underlying the 1999 Constitution of Nigeria and the Electoral Act 2006. (Grounds 7, 8, 9, 10, 11 and 16)

ISSUE D: Whether non-compliance with the provisions of the Electoral Act 2006 having been pleaded and the Voters Register(s) used for the governorship election in Ebonyi State having been pleaded and tendered in evidence (Exhibit 249), the invalidity of the said Voters Register(s) for noncompliance with the provisions of the Act and the effect of such invalidity on the election are not thereby put in issue as a question of law, which the Tribunal should have considered and determined but failed so to do. (Ground 7 and other Grounds)

ISSUE E: Whether the Judgment of the Tribunal refusing to nullify the entire election is not perverse and void for being at variance with the Tribunal’s findings and with the evidence as well as the law on which it is purportedly based. (Grounds 6, 8, 10 and 17)

ISSUE F: Whether having regard to the evidence, the Tribunal should not have nullified the return of the 1st Respondent and declared the 1st Petitioner as the winner of the election.

ISSUE G: Whether the Judgment is not vitiated for being against the weight of evidence.

(Grounds 22 and 23).”

The three set of respondents in their respective briefs of argument identified issues for determination which are identical in nature. The issues for determination identified by each set of respondents will be summarized thus:-

1st Respondents (4 Issues)

(l)”ISSUE NO 1 – Whether the verdict of the lower tribunal was fundamentally defective in comprehension and articulation of the real issues in dispute thereby occasioning miscarriage of justice. (Grounds 1 and 2).

(2) ISSUE NO 2 – Whether the lower tribunal was right in applying standard of proof beyond reasonable doubt to the allegations of corrupts practices and non-compliance relied upon by the petitioners/appellants. (Grounds 3, 5, 9, 10, 11, 12, 16, 17, 22 and 23).

(3) ISSUE NO 3 – Whether the lower tribunal was right in requiring the petitioners/appellants to prove the adverse effect the corrupt practices, malpractices and non-compliance had on their chances of winning the election (ground 4 ).

(4) ISSUE NO 4 – Whether the lower tribunal was right in not relying on exhibits 77 to 305 to find in favour of the petitioners/appellants on grounds of malpractices disclosed thereon (grounds 6, 7 and 8).”

2nd Respondent (Five Issues)

“ISSUE ONE: “Whether the verdict of the Lower Tribunal was fundamentally defective in comprehension and articulation of the real issues in dispute thereby occasioning miscarriage of justice (Ground 1 and 2)”.

ISSUE TWO: “Whether the Lower Tribunal was right in applying standard of proof beyond reasonable doubt to the allegations of corrupt practices, Malpractices and non-compliance relied upon by the Petitioners/Appellants (Ground 3, 5, 9, 10, 11, 12, 16, 17, 22 and 23)”.

ISSUE THREE: “Whether the Lower Tribunal was right in requiring the Petitioners/Appellants to prove the adverse effect the corrupt practices, malpractices and non-compliance had on their chances of winning the election (Ground 4).”

ISSUE FOUR: “Whether the Lower Tribunal was right in not relying on Exhibits 77 to 307 to find in favour of the Petitioners/Appellants on ground of malpractices disclosed thereon (Grounds 6, 7 and 8).”

ISSUE FIVE: “Whether the judgment of the Lower Tribunal is sustainable in law. (Grounds 22 and 23).”

3rd, 4th and 3714 Respondents (Five Issues)

(1) Whether the Honourable Election Tribunal was right to formulate the issues under the circumstances and whether there are precedents in respect of that.

(2) Whether the decision of the Honourable Election Tribunal was in accordance with the pleadings.

(3) Whether the 1st Appellant can ask to be declared elected under an Election they pleaded and stated to have been “purportedly conducted” and marred or spoilt or damaged by corrupt practices and substantial non – compliance. Whether the Petitioners/Appellants will be allowed to reprobate and approbate at the same time.

(4) Whether the Appellants can introduce at this stage facts and “Reports” of International Bodies which were not pleaded nor before the Honourable Election Tribunal at the trial stage.

(5) Whether the Judgment of the Honourable Election Tribunal is sustainable.”

It has been observed that the issues for determination identified by the Appellants and the three set of respondents have so many things in common. In fact almost all the issues are identical in nature and effect, save for the little difference in construction. The issue identified ‘Issue A’ by appellants is same as issue number one for all the respondents and same applies in respect of other issues. Based on the foregoing premise, this appeal will be resolved based on the issues identified by the appellants, namely issues A, B, C, D, E and G as formulated by the appellants. Issue A will be considered first, while issues B, C, D and E will be considered together and issue G will be treated last. A consideration of the issues as stated earlier will now be made a non:-

ISSUE A (Grounds 1 and 2)

The grouse of the appellants under this issue is borne out of what the tribunal stated on page 6 of the judgment in volume 8 of the records to wit:

“From the pleadings of the parties all the issues identified by counsel for the parties may be compressed into two broad issues namely:

1. Whether there was Governorship Election in Ebonyi State on the 14th April, 2007
2. If so, whether it was marred by electoral malpractices as alleged by the petitioners. It is therefore on the basis of these two issues that the tribunal will proceed to determine this petition.”

The contentions, of the appellants under this issue are two fold. The first is that the issue as to whether there was governorship election in Ebonyi State could not be said to have arisen from the grounds of the petition, reliefs claimed or issues for determination in the petitioners written address. Based on that, learned senior counsel contended that the tribunal had already taken a stand at the very beginning of the judgment on the real issues arising from the grounds and the reliefs which disabled it from determining the issues fairly and dispassionately having prejudged them.

The second aspect of the complaint on this issue is on subsuming the complaint of non compliance with the provisions of the Electoral Act 2006 as an integral part of the complaint of corrupt practices or electoral malpractice. Based on this, learned senior counsel contended that the complaint of non compliance with the Electoral Act 2006 was not considered by the tribunal. The learned silks further contended that by the use of the word “or” in Section 145(1) (b) of the Electoral Act 2006, corrupt practices and non compliance are considered two different grounds. As to the meaning of ‘or’ wherever used in a statute to be construed disjunctively, reference was made to Section 18(3) of the Interpretation Act and the cases of Arubo V. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142 and Abia State University V Anyaibe (1996) 3 NWLR (Pt. 439) 646 at 661.

The net effect of confusing the two i.e. non compliance and corrupt practices, senior counsel contended is with regards nature of evidence required to prove them. The implication senior counsel contended is raising the standard of proof in non compliance to that of beyond reasonable doubt as in corrupt practices. In support of this contention learned senior counsel referred to page 13 of the judgment where the tribunal while dealing with compliant of failure to issue ballot paper serially under S.45(2) of the Act stated thus:

“As observed earlier, the fundamental aspect of this issue bothers on allegation of Electoral Malpractices and therefore criminal in nature under the Electoral Act. The question now comes. Have the petitioners proved these allegations of crime beyond reasonable doubt as they are bound to do in law.”

The learned senior counsel argued that the standard of proof beyond reasonable doubt stipulated in the above quoted statement must be taken to have meant to apply to allegations of non-compliance as it applies to corrupt practices. Learned senior counsel made reference to pages 14 and 20 of the judgment on the same submission and consequently urged this court to resolve the issue in favour of the appellants.

In their response, on this issue, the three set of respondents in their issue number one in their respective briefs of argument disagreed with the contention of the learned senior counsel for the appellants. The response of the three set of respondents being identical in nature will be grouped together and treated as one. It was submitted by the respondents that the tribunal did not act wrongly in formulating issues for determination in the light of issues formulated by counsel on both sides and considered by the tribunal as can be seen on pages 552 – 553 in volume 8 of the record. It was further submitted that the formulation of issues by the tribunal is in keeping with the precedents established by the Supreme Court and the Court of Appeal. In support of this, reference was made to the cases of Anyaduba V. Nigerian Reknowned Trading Company Ltd (1992) 6 SCNJ 204 at 221 and Onwuchuruba V. Onwuchuruba (1993) 5 NWLR (Pt. 292) 185 at 196.

The respondents further argued that it was wrong for the appellants to contend that issues identified by the tribunal were not borne out of the issues formulated by the parties or it was aimed at excluding non compliance. In support of this contention, reference was made to page 553 of volume 8 of the record where the tribunal took cognizance of the fact that issues formulated and submitted by counsel were not ad idem, thereby necessitating compressing all the issues into two broad issues as was done by the tribunal. The complaint of non compliance, the respondents contend was compressed into the two broad issues particularly the second issue and was given adequate consideration by the tribunal. In attesting to this fact, the respondents made reference to paragraph 4.6 of the appellant’s brief, where the appellants submitted thus:

“In the course of the judgment a sizeable part of it was devoted to a consideration of the complain of non compliance.”

Based on the above submission of the appellants, the respondents contend that the learned senior counsel for the appellants is speaking from both sides of his mouth.

The respondents further contend that Section 145(1) (b) of the Act places corrupt practices at par with non compliance and the difference between the two is essentially one of distinction without a difference. In support of this contention, it was submitted that both the two elements received express treatment in their many manifestations as offences punishable with fine or imprisonment or both as categorized in Part VIII of the Act, captioned “Electoral Offences” vide Sections 124 to 139 thereof. The respondents further contend that the submission of the appellants to the effect that only ground of petition is necessary and not fact in support does not represent the position of the law. In support of this contention, reliance was placed on Paragraph 4(1) (d) of the 1st schedule to the Act. In concluding respondents contended that non compliance was adequately considered. The respondents concluded by arguing that a sound judgment will not be set aside on account of style adopted by the lower court. In support of this, contention reference was made to the cases of Ogba V. Onwuzo (2995) 14 NWLR (Pt. 945) 331 at 345, Adepetu V State (1996) 6 NWLR (Pt. 452) 90 at 115 and Bello V. Eweka (1981) 1 SC 101. The respondents finally urged this court to resolve this issue in their favour.

I have studied the submissions of learned senior counsel representing all parties in this appeal on this issue, vis a vis the record of proceedings and the judgment. I am unable to agree with the contention of the learned senior counsel for the appellants, with regards to their position on issue A as to the issues formulated for determination by the tribunal. A glance at page 553 of Volume 8 of the records, will disclose that the tribunal examined all the issues for determination submitted by all parties. Based on the issues submitted, the tribunal was of the view that parties were not agreed on the issues, hence it stepped in to compress all the issues into two broad issues as was done. Furthermore a meticulous study of the judgment will debunk the contention, that failure to mention non-compliance means it was not considered. The learned senior counsel for the appellants in his brief of argument conceded to the fact that a sizeable portion of the judgment was devoted to the consideration of non compliance. The said admission in the appellant’s submissions defeats all the arguments proferred by them in respect of this issue. The contention of the appellants to the effect that failure to mention non-compliance will amount to raising its standard of proof to beyond reasonable doubt like corrupt practices cannot hold water.

This is so, particularly in view of what the tribunal stated on page 20 of the judgment as follows:

“Proof of an electoral malpractice or irregularity or misconduct, depends on the nature of the conduct complained of. Where the allegation is simply that of wrong doing, its proof is on the preponderance of evidence, where as in this case the allegation bothers (sic) on criminality, the standard of proof is beyond reasonable doubt.”

It is clear from the above that the tribunal has not confused the two, in terms of proof and has also not forgotten any, in its consideration. Consequent upon the foregoing, the tribunal’s formulation of the issues for determination is not so erroneous in law as to vitiate the entire judgment. Issue ‘A’ is accordingly resolved in favour of the respondents.

ISSUES B, C, D, & E.

The issues under consideration were distilled from grounds 3, 4, 5, 7, 8, 9, 10, 11, 12, 16 and 17 of the grounds of appeal. The contention of the appellants is that the tribunal was in error to have held that every electoral malpractice was criminal in nature and requires proof beyond reasonable doubt. Learned senior counsel further contended that the tribunal was in error for failure to accord weight to the evidence of 17 of the petitioners witnesses who tendered their voter’s cards to the effect that they were unable to vote, as provided for in the INEC election manual. Learned senior counsel further submitted that the tribunal was in grave error in refusing to give probative value to the voters register and the 229 other documents admitted in evidence and marked exhibits 77 to 305. In support of this contention learned senior counsel attempted making a distinction between this case and the following cases:

Alao V. Akano (2005) 11 NWLR (Pt. 935)160

Awuso V. Odili (2005)16 NWLR (Pt. 952) 416

Onibudo V. Akibu (1982) 13 NSCC 199

Egba V. Appah (2005) 10 NWLR (Pt. 934) 464

Duriminiya V. COP (1959 – 1961) NWLR 70

Queen V Wilcox (1961) 2 SCNLR 296

Omega Bank Ltd V. OBC Ltd (2005) 8 NWLR (Pt. 928 – 547).

The learned senior counsel argued that the above cases have no relevance as binding precedent to the instant case, where the documents tendered and admitted in evidence were electoral forms and documents like voters register. The failure of the tribunal to accord value to the 229 documents learned silk submitted amounted to a mechanical and almost slavish obedience to the doctrine of precedent without regard to the principles governing its application and in support of this contention, reliance was placed on Clement V. Inwanyanwu (1989) 3 NWLR (Pt. 107) 39. The voters register, counsel argued ought to have been considered having been tendered and admitted in evidence. Furthermore having pleaded the invalidity of the voters register for non-compliance, the invalidity is a question of law which the tribunal failed to determine. The invalidity of the voters register, the learned silk argued has invalidated the entire election.

As to the issue of corrupt practices or electoral malpractice, learned senior counsel contended that it was wrong for the tribunal to have held that every corrupt practice is a crime under the Electoral Act 2006. Learned senior counsel argued that of the 14 electoral malpractices complained of in paragraph 10 of the petition, only six are electoral offences under Section 124 – 138 of the Electoral Act and liable to be proved beyond reasonable doubt. The distortion of this position by the tribunal learned senior counsel contends affected the fortunes of their petition at the tribunal. The learned senior counsel further submitted that the judgment of the tribunal is replete with acknowledgments by the tribunal that the elections did not accord with the principle of free, fair and credible election under the Constitution and the Electoral Act 2006. These acknowledgments, the learned silk argued provided enough basis for the nullification of the election or return of the 1st respondent. Learned senior counsel further contended that the judgment of the tribunal was perverse. In support of this submission, learned silk made references to some portions of the judgment and contended that the decision of the tribunal was in conflict with its findings and evidence as well as the law. Consequently learned senior counsel urged this court to resolve the issues in favour of the appellants.

The learned senior counsel representing the three set of respondents argued these issues namely B, C, D and E, under their respective issues 2, 3 and 4. As earlier done in this judgment under issue ‘A’, the submissions of the learned senior counsel for the respondents will be merged together and treated at once. On standard of proof, the respondents contend that the tribunal was right in adopting proof beyond reasonable doubt to the allegation of corrupt practices, malpractices and non compliance relied upon by the petitioners/appellants. The respondents further contend that paragraph 10 of the petition contained complaints of various acts of criminality against PDP, hired thugs, INEC staff and security agents. The said complaints in paragraph 10 of the petition amounted to electoral offences by virtue of Part VIII and Sections 130 (1) and 137 (a) of the Act. The contents of paragraph 10 of the petition having been made electoral offences, the respondents argued that by virtue of Section 138(1) of the Evidence Act the standard of proof is beyond reasonable doubt. In support of this submission reference was made to the cases of:

Nwobodo V. Onoh (1984) 1 SCNLR 108

Omoboriowo V. Ajasin (1984) 1 SCNLR 105

Ayogu V. Nnamani (2006) 8 NWLR (Pt. 981) 160

Edet V. Eyo (1999) 6 NWLR (Pt. 605) 18

Yusuf V. Obasanjo (2005) 18 NWLR (Pt. 956) 96

Ogu V. Ekweremadu (2006) 1 NWLR (Pt. 961) 255.

As to the wrong application of proof beyond reasonable doubt to non compliance as canvassed by appellants, the respondents argued that the tribunal was conscious of the fact that some irregularities may be proved on preponderance of evidence. In support of this contention, reference was made to page 20 of the judgment where the tribunal stated thus:

“Proof of an electoral malpractice or irregularity or misconduct, depends on the nature of the conduct complained of. Where the allegation is simply that of wrong doing, its proof is on the preponderance of evidence. Where as in this case the allegation bothers on criminality, the standard of proof is beyond reasonable doubt”.

The respondents further contend that the allegation of non compliance in the petition is rooted in acts of violence, thuggery, diversion and willful hoarding of electoral materials etc, which are all acts of criminality. In further support of this contention, reference was made to lines 4 -10 of page 558 of volume 8 of the record, where the tribunal stated thus:

“The petitioners alleged numerous acts of electoral malpractices namely massive rigging, voter intimidation, snatching of ballot boxes, thumb printing ballot papers falsification of election results and sundry other electoral malpractices.

These allegations are electoral offences under Section 136 – 138 of the Evidence Act (sic). They are therefore allegations of crime which must be proved beyond reasonable doubt…”

The respondents further argued that the appellants have failed to pin point acts of non compliance which were proved on preponderance of evidence to which the tribunal wrongly applied higher standard. Consequently the respondents urged this court to resolve this aspect in their favour.

The respondents further contended that the submission of the appellants to the effect that judgment of the tribunal is vitiated by error of requiring that the alleged corrupt practices must be substantial is misconceived. In support of this contention, reference was made to Section 146(1) of Act and the case of Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 222. The respondents submitted that the tribunal was right in requiring the appellants to prove the adverse effect of the corrupt practices and non compliance on their chances of winning the election. On substantiality, further reference was made to the case of Woodward V. Sarsons (1875) LR 10 CP 733 and this court was urged to hold that the elections in Ebonyi State were in substantial compliance with the Act. On exhibits 77 to 305, the respondents submitted that the tribunal made a finding of fact and came to the conclusion that the exhibits do not fall under Section 113(1) (a) of the Evidence Act. The respondents further argued that there is no appeal against the said finding of fact consequently they submitted an appellate court will not disturb such finding of fact. In support of the submission reference was made to the case of Omnia (Nig) Ltd. V. Dyktrade Ltd. (2007) 15 NWLR (Pt. 1058) 576 at 617. As to the probative value of the exhibits, the respondents contended that the position taken by the tribunal cannot be faulted as the exhibits were not tried in open court to any particular aspect of the case. The real issue, respondents contended, is not that of reading or non reading of the exhibits in the open court but rather that of non demonstration of the dumped exhibits on the case pleaded by the appellants. In support of this submission, reference was made to the cases of TERAB V. Lawan (1992) 3 NWLR (Pt. 231) 569, Rotimi V Fuforiji (1999) 6 NWLR (Pt. 66) 105. The tribunal was therefore right by refusing to do a cloistered justice in according the said exhibits probative value.

As to the arguments in respect of INEC manual preferred by appellants, the respondents contended are ill conceived and ought to be rejected. The basis for this contention the respondents submitted are two fold, namely there is no averment in the pleading capable of sustaining such argument and secondly that the manual was a lame-duck in that no witness demonstrated its cogency to the issues joined in the pleadings. It was further contended by the respondents that Section 145(2) of the Act is emphatic in that no act or omission which may be contrary to any instruction or directive of INEC but which is not contrary to the Act shall be a ground for questioning an election. The respondents further contended that all the non-compliances raised in issue ‘B’ were neither pleaded nor canvassed at the tribunal, hence they should be discountenanced. The respondents also urged this court to disregard submissions on the tables attached to Petitioners address but not tendered in evidence. In concluding the respondents urged this court to resolve all these issues in their favour.

The complaints under these combined issues are as to the nature of proof regarding the allegation contained in the petition. The appellants are contending that they had established all the grounds of their petition, hence entitled to judgment. The grounds of the petition as stated in paragraph 8 of the petition on page 80 of volume 1 of the record, is to the effect that the governorship election held in Ebonyi State on 14th April, 2007 is invalidated in all parts of the state except in areas stated under paragraph 9(a) to (f) by reason of corrupt practices and non-compliance with the provisions of the Act. The other alternative ground is that the 1st respondent was not elected by a majority of lawful votes cast at the election and his election is void.

Flowing from the above, what is the nature of proof required for the said grounds of petition as shown above? Conversely put, have the petitioners discharged the onus on them by law to entitle them to judgment. In a way, have the petitioners established the non compliance or corrupt practices alleged and have they also established that the 1st respondent did not win the election by a majority of lawful votes. The contention of the appellants is that they have established all the grounds as required by law, but due to the misconceptions of the tribunal as to the nature of proof required and its disregard for the evidence adduced by them, it held that the petitioners now appellants have failed to establish the grounds upon which the petition was anchored.

A quick general consideration will be made as to the standard of proof required in election cases. Election petitions are sui generis in nature and therefore in a class of their own. Basically therefore, subject to the special provisions under the Constitution and the Electoral statutes, election petitions are governed by the rules in civil proceedings. The onus of proof in election petitions, like in ordinary civil cases is on the person questioning the result of the election. See Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1 and INEC V. Ray (2004) 14 NWLR (Pt. 892) 92. Thus where allegations of acts of commission or omission are civil in nature the standard of proof is on balance of probability or preponderance of evidence on the part of the petitioner. See Ajadi V. Ajibola (2004) 16 NWLR (Pt. 898) 91 at 195. Where however the petition raises an allegation that amounts to commission of crime which is denied, the provision of Section 138(1) of the Evidence Act becomes applicable. The proof of such allegation must be beyond reasonable doubt.

A careful study of paragraph 10 of the petition containing facts upon which the petition is based, itemized acts of non-compliance, corrupt practices and malpractices levelled against INEC, PDP, security personnel and some named individuals. The complaints are of the nature of multiple voting, organised thumb printing, falsification of result, arbitrary assignment of scores, acts of violence, ballot box snatching, non holding of elections, non supply and hijack of materials for election, rigging etc, to mention a few in most of the wards in the Local Government Areas. A careful analysis of the various complaints contained in paragraph 10, will surely disclose that the acts complained of constitute or are electoral offences by virtue of Section 124 to 139 in part VIII of the Electoral Act. Consequently being electoral offences, Section 138(1) of the Evidence Act will come into focus and their proof must be beyond reasonable doubt. The tribunal was therefore not in error to have held that non compliance of criminal nature must be proved beyond reasonable doubt. See Omoboriowo V. Ajasin (supra), Nwobodo V. Onoh (supra) Buhari V. Obasanjo (supra) and Hashidu V. Goje (2003) 15 NWLR (pt. 843) 352.

In an attempt to establish none voting by voters in some parts of the constituency, the appellants called 17 witnesses and tendered their voter’s card to the effect that they are registered voters and have not been allowed to vote. The appellants contended that having regard to the INEC Manual, the tribunal was in error by holding that there is no provision in the Act denoting that stamping signing and dating of voters card are proof of voting. Based on the foregoing, appellants contended that the error has affected the fortune of their petition. The position of the law on this is provided for under Section 50 of the Act, to the effect that a petitioner is to produce voters register of the relevant units to ascertain those who voted by comparing voters card with the register. See Rotimi V. Faforiji (Supra), Awuse V. Odili (Supra) and Ayogu V. Nnamani. The arguments preferred by the appellants in favour of INEC Manual, over and above the clear provisions of the Act cannot hold water. The tribunal was indeed not in error on this, thus the allegation of none voting was not established.

The appellants also contended that failure to accord probative value to exhibits 77 to 305 was a grave error by the tribunal. The documents admitted as exhibits 77 to 305 were produced by PW 46 an INEC official on subpoena. The official brought the documents and dumped them, he was never cross examined on the documents and none of the petitioner’s witnesses examined or demonstrated any of the exhibits in the open court. The tribunal was right in not according them any value as to do otherwise will amount to doing cloistered justice by examining them in the recess of its chamber. See Duriminiya V. COP (Supra), Terab V. Lawan (Supra). Thus the position taken by the tribunal on Exhibits 77 to 305 cannot be faulted. Exhibits 77 to 305 not having been accorded any probative value and rightly too, nothing could be said to have been established by them.

A further consideration will be made as to the aspect of the corrupt practices and non-compliance alleged in the petition. The appellants contended having established the non compliance and malpractices which the tribunal acknowledged, yet it refused to nullify the election. It must be stated from the evidence adduced before the tribunal, most of the allegations contained in paragraph 10, such as the multiple thumb printing, falsification of results, non holding of elections etc were not established. The appellants have not proved the allegations contained in the aforementioned paragraph. Furthermore appellants have a duty to show that the malpractices in respect of the few areas as testified by their witnesses, has substantially affected the result of the election or adversely affected their chances of winning the election. See Buhari V. Obasanjo (supra). This has not been done. The mere fact that some malpractices have been proved in few pockets of the constituency is not enough to warrant a nullification of the election. From the evidence adduced, elections were conducted in 12 out of the 13 Local Governments in the state. By the result declared by INEC the 1st respondent scored 560,444 while the 1st appellant got 28,579. The appellants therefore have a duty to show how this result will be substantially affected by the malpractices or non compliance. See Onuigwe V. Emelumba (2008) 9 NWLR (Pt. 1092) 371 and Buhari V. Obasanjo (supra). The failure to nullify the election and the dismissal of the petition cannot be said to perverse. Furthermore as nothing substantial was established, the tribunal has no reason to nullify the election. On the alternative prayer of majority of lawful votes, the appellants alleged falsification of results. There was however no evidence adduced to support the allegation, as two set of result were not tendered to show the genuine and the falsified result. Consequent upon the foregoing, issues B, C, D and E are hereby resolved in favour of the respondents against the appellants.

ISSUE G (Grounds 22 and 23)

On this issue the appellants contended that the judgment is patently against the weight of evidence, as there was sufficient oral and documentary evidence for the tribunal to have nullified the election. The respondents on their part contended that the judgment of the tribunal is sustainable as it was based on evidence, while the appellant’s case is based on imported views and foreign reports which are foreign to the pleadings. Consequently the respondents urged this court to dismiss the appeal. Having resolved issues A, B, C, D, and E in favour of the respondents, I hold that the decision of the tribunal is sustainable by the evidence adduced. Consequently this issue too, is also resolved in favour of the respondents.

Consequent upon the foregoing and having resolved all the issues in this appeal in favour of the respondents, the appeal is lacking in merit and is hereby dismissed. The judgment of the lower tribunal delivered on the 29th November, 2007 dismissing the appellant’s petition No. EPT/EBS/GOV/AB/2/2007 in hereby affirmed. The declaration and return of the 1st respondent as the Governor of Ebonyi State is hereby affirmed.

The three set of respondents are hereby awarded costs of N30, 000.00 each against the appellant.

---

Other Citations: (2008)LCN/2878(CA)