Dr. Olusegun Agagu & Ors V. Rahman Olusegun Mimiko & Ors (2009)

LawGlobal-Hub Lead Judgment Report

UMAR FARUK ABDULLAHI, J.C.A.

The Governorship/Legislative Election Tribunal in Akure, Ondo State (Coram G.N. Nabaruma, Chairman, A.E. Okon, D.I. Okungbowa, M.B Goji and A.S Umar JJ, members), delivered its judgment on the 25th day of July, 2008, wherein it declared the Petitioner, Dr. Rahman Olusegun Mimiko as the duly elected Governor of Ondo State of Nigeria, being the candidate that scored the highest number of valid votes cast at the 14th April, 2007 Governorship election. The first, second, third, fourteenth, fifteenth and sixteenth Respondents being dissatisfied have separately appealed to this court.

The petition culminating in this appeal was brought on 14th May, 2007 against the election of Dr. Olusegun Agagu who had contested the Governorship election in Ondo State on the platform of the Peoples Democratic Party and was the first Respondent at the Tribunal.

The Petitioner, Dr. Rahman Olusegun Mimiko, was the candidate of the Labour Party and first Respondent herein, Dr. Olusegun Agagu filed his reply to the Petition on 13th June, 2007 thereby joining issues with the Petitioner. The fifteenth and sixteenth Respondents equally joined issues with the Petitioner on 6th June, 2007. The second as well as the third to fourteenth Respondents failed to file their respective replies to the Petition. The application for enlargement of time to file their replies was refused. Seventeenth and eighteenth Respondents neither filed a reply nor participated in the proceedings. The second, third to fourteenth Respondents as well as the fifteenth and sixteenth Respondents informed the Tribunal that they had no evidence to proffer. The fifteenth and sixteenth Respondents thereby completely abandoned their reply to the petition.

At the hearing of the appeal, Prince Lateef Fagbemi, learned senior counsel for Dr. Olusegun Agagu adopted both the Appellant’s brief and Appellant’s reply brief. He briefly elucidated upon the briefs. In the second appeal filed by the 2nd Respondent in the Petition, Alhaji Abdullahi Ibrahim (SAN) adopted and elucidated on its Appellant’s brief and the Appellant’s reply brief. Mr. J.B. Daudu (SAN) adopted the Appellants’ briefs and reply briefs of the third to fourteenth Respondents to the Petition, who filed a substantive appeal and four interlocutory appeals. He elaborated on all the briefs. Mr. J.C.A. Idachaba, Esq., also adopted the Appellants’ brief and Appellants’ reply brief in the fourth and final substantive appeal filed by the fifteenth and sixteenth Respondents to the Petition. Chief Wole Olanipekun, learned senior counsel for the Petitioner, Rahman Olusegun Mimiko, adopted the first Respondent’s briefs to all the appeals, both substantive and interlocutory. Chief Wole Olanipekun (SAN) also filed notices of intention to rely on preliminary objections against some of the Grounds of Appeal in some of the notices of appeal filed on the ground of incompetence and he prayed that they should be struck out.

Dr. Olusegun Agagu filed 207 Grounds of Appeal in the Amended Notice of Appeal. The Grounds of Appeal sought to be struck out are Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 41, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 56, 58, 59, 60, 61, 71, 78, 79, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 109, 110, 113,114, 115, 116, 118, 119, 120, 121 ,123, 124, 125, 126, 129, 130, 132, 133, 134, 135, 136, 137, 138, 139, 142, 143, 153, 155, 158, 161, 168, 169, 171, 172, 173, 175, 178, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 196, 197, 199, 200 and 202.

The Grounds that survived the onslaught are – 1, 31, 40, 42, 54, 55, 57, 62, 63, 64, 65, 66, 67, 68, 70, 71, 73, 74, 75, 76, 77, 80, 67, 68, 70, 72, 73, 74, 75, 76, 77, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 107, 108, 111, 112, 127,128, 131, 140,141, 144, 145, 146, 147,148, 149, 150, 151, 152, 154, 156, 157, 159, 160, 162, 163, 164, 165, 166, 167, 170, 172, 176, 177, 179, 195, 198, 201, 203, 204, 205, 206 and 207.

The survivors in spite of the weeding are quite a mouthful.

I therefore agree with the learned senior counsel for the Respondent that the situation “is a study in prolixity”. However, the objection was not taken before the hearing of the appeal, even though it was canvassed or argued in the Petitioner/first Respondent’s brief of argument. It was taken after all the appeals had been argued. This omission can be traced directly to the multiplicity of appeals taken together, which provided learned senior counsel for Dr. Olusegun Agagu an escape route. The situation was founded on the Supreme Court decision in Lagga v. Sarhuna (2008) 16 NWLR (Pt 1114), 427 at 480 – 1. Counsel contended that the preliminary objection was abandoned or deemed abandoned having not been raised prior to the hearing of the appeal. It makes sense. It is to demonstrate the futility of bolting the stable after the horse had escaped. See also Offorkire & Anor vs Maduike & Others (2003) 5 NWLR (Pt.812) 166, 178 – 179;

The notice of preliminary objection can be given in the Respondent’s brief, but a party filing it, in the brief, must ask the Court for leave to move the notice of objection before the oral hearing of the appeal commences. Otherwise, it will be deemed to have been waived and therefore abandoned. In Nsirim v Nsirim (1990) 3 NWLR (Pt.138) 285 at 296 – 297 the Supreme Court, per Obaseki, JSC, stated as follows:

“The Respondent in the instant appeal has contended that although the objection was stated in the brief the Court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of errors. He therefore submitted that the Appellant herein should be taken to have abandoned the objection more so as it was not an issue for determination in the appeal before the Court of Appeal. In my opinion, there is substantial merit in the contention of the Respondent. Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that arguments on it can be heard by the court- while notice of objection may be given in the brief, it does not dispense with the need for the Respondent to move the Court as the oral hearing for the relief prayed for. This preliminary objection not having been raised and argued at the oral hearing the Court of Appeal cannot be condemned as having erred in allowing the then Appellant (now Respondent) to argue his appeals.”

In the circumstances, all the preliminary objections concerning the Grounds of Appeal filed by all the Appellants are hereby disposed of.

Before going further, it will be necessary to consider the interlocutory appeals.

The second Respondent/Appellant as well as the third to fourteenth Respondents/Appellants failed to file replies to the Petition and have by their conduct or default admitted the averments in the Petition, which are left unchallenged, and uncontroverted or uncontradicted – see Haway vs Mediowa (2000) 13 NWLR (Pt 683) 77, United Nigeria Insurance Co. Ltd vs Universal Commercial & Industrial Co. Ltd (1999) 3 NWLR (Pt 593) 17, 25, Akibu v Oduntan (1992) 2 NWLR (Pt 222) 210 at 226. In such circumstance, the law does not require proof of impliedly admitted facts and where proof is even required, only a minimal evidence would be necessary to ground the claim – See Balogun vs. UBA (1992) 6 NWLR (Pt 247) 266, Egbunike vs. ACB (1995) 2 SCNJ 58, 78. With regard to the interlocutory appeal by INEC complaining of the refusal by the Tribunal to grant the extension of time sought to file their joint reply to the Petition, it is my view that even if it succeeds, it will be of no moment in this appeal because they led no evidence. After all, public policy demands that there should be an end to litigation.

In the case of the fifteenth and sixteenth Respondents/Appellants, they failed to adduce evidence in support of their joint statement of defence. In determining this appeal, it must be borne in mind that there are instances in which a Defendant who did not call any evidence may still be entitled to Judgment. Such instances include where the Plaintiff failed to call evidence on material facts of his case or where the evidence by the Plaintiff or Petitioner is so patently discredited or unreliable that no reasonable tribunal can accept and act on it. See Aduke v Aiyelabola 8 WACA 43, 45; Ofomaja vs Commissioner for Education & Ors (1995) 8 NWLR (Pt 411) 69, Onyekaonwu vs Okwubiri (1966) 1 All NLR 32. A Defendant may also be entitled to Judgment without adducing oral evidence, if through cross-examination of the Plaintiff and his witnesses and tendering of documents through them destroys the Plaintiff’s case and establishes a valid defence – see Lawal v UBN Plc & Others (1995) 2 NWLR (Pt 378) 407. In a civil case (to which category an election petition belongs) the only way to arrive at a final decision is by determining on which side the weight of evidence tilts. If a defendant opts or chooses not to call or proffer any evidence the issue calling for determination will be proved by minimal of evidence – see Nwabuoku vs Ottih (1961) A.N.L.R. 507 and Attorney General Oyo State v Fair Lakes Hotels Limited No 2 (1989) 5 NWLR (Pt 121) 255. The end result is that the four interlocutory appeals filed by INEC and its Officials lack merit. They fail and are hereby dismissed.

Coming to the main appeals, learned counsel for all the parties identified Issues for Determination in their various briefs, and in Appeal No. CA/B/EPT/342A/08, the Appellant formulated the following issues-

1. Whether the trial Tribunal was right when it failed/refused to strike out the entire Petition or part of same when certain paragraphs of the Petition were fundamentally defective in that they violated mandatory provisions of the Electoral Act, 2006 which regulates election petitions?
2. Whether the Judgment of the election Tribunal was not void or invalid in view of the participation in the delivery of the Judgment by a Member who did not take part in the hearing of all the evidence of the case?
3. Whether the trial Tribunal was right in its evaluation of the evidence before it and resultant findings nullifying the election in several polling units and wards in the various Local Government Areas?
4. Whether the trial Tribunal was right when it admitted and relied on inadmissible evidence in spite of the objections raised thereto by the Appellant which objection the Tribunal failed to pronounce upon?
5. Whether the trial Tribunal was right when it based its decision on evidence led on facts which were not joined and thereby set up a different case for the 1st Respondent?
6. Whether the trial Tribunal was right in its interpretation and application of Sections 46, 50 and 19 of the Electoral Act 2006?
7. Whether in the circumstances of the case and particularly in view of the final order of the Tribunal, the trial Tribunal was right in nullifying the election result of all polling units in APOI II ward 02 and APOI III Ward 003 of Ese-Odo LGA?
8. Was the trial Tribunal right when it suo motu sorted out/arranged (Polling Unit by Polling Unit) ballot papers which were tendered from the Bar and relied on inadmissible and unreliable documents on which no evidence was led to produce Charts in Chambers, upon which it made vital and decisive findings?
9. Was the trial Tribunal justified in omitting lawful results in the final computation of the result of the election when the said results were not nullified by the Tribunal?
10. Whether the trial Tribunal was right in placing the onus of producing results (Form EC8A) on the Appellant?
11. Whether the conclusion of the lower Tribunal as to what lawful votes scored by the parties was, is valid and justifiable having regard to the failure of the Tribunal to determine the number of votes affected by the alleged malpractices and improprieties raised by the petitioner?
12. Whether the Tribunal was right in declaring the Petitioner/1st Respondent winner of the 14th April, 2007 Governorship Election in Ondo State?

The first Respondent, however, submitted that the issues that call for determination in the appeal are as follows:-

1. Whether the lower Tribunal was/is not right in holding that Ground one of the Petitioner/1st Respondent’s Petition is/was competent and valid.
2. Whether the lower Tribunal was not right in dismissing the objection of the Appellant on non-joinder of certain persons alleged to be necessary parties to the Petition.
3. Whether the lower Tribunal did not rightly make use of Exhibits and Charts in arriving at its decision in the circumstances before it.
4. Whether having regard to the pleadings and the totality of evidence oral and documentary before the lower Tribunal it was not right in holding that the Petitioner/1st Respondent was entitled to the relief granted.
5. Whether the participation of the Hon. Justice Goji in the hearing of the Petition in the lower Tribunal from 15th April, 2008 till 25th July, 2008 operates to vitiate the Judgment of the lower Tribunal and render it a nullity.

In my view, the issues formulated by the Appellant encompass the gist of the complaints in his Grounds of Appeal, and I will adopt same in dealing with this appeal.

I am now to consider Appellant’s Issue 1, which deals with propriety or otherwise of the holding of the trial Tribunal in failing or refusing to strike out the entire petition or certain grounds or paragraphs of the petition which were fundamentally defective in that they violate mandatory provisions of the Electoral Act, 2006. This issue was bifurcated and argued under these two sub-heads, that is –

(a) Whether ground of the petition is competent; and the

(b) Effect of non-joinder of the Presiding Officers, Electoral Officers the police officers and certain government officers etc who were alleged to have continued to perpetrate various electoral malpractices and irregularities.

On the first sub-ground, it is submitted that the Tribunal erred in law when it held that Ground 1 of the Petitioner’s Petition is competent and that the use of the word “malpractice” instead of the word “corrupt practices” used in Section 145(1) of the Electoral Act, 2006 denotes the same thing and the pleadings by the petitioner that the election was void by reason of malpractices is a valid and sufficient ground.

The Appellant filed its reply to the Petition on 13th June, 2007. Prior to the filing of the Appellant’s reply, no objection was taken to the competence or otherwise of the Petition. The issue of competence of the petition was raised for the first time by the Appellant in his final address.

There is substance in the submission of learned senior counsel for the first Respondent that at the time the Appellant raised the issue of the competence of Ground 1 of the petition for the first time, the Tribunal had become bereft of the jurisdiction to entertain such issue having regard to the provisions of paragraph 49(2) of the First schedule to the Electoral Act No 2 of 2006. The jurisdiction of a special Court, indeed of all Courts, is circumscribed by the statute creating such Court or Tribunal. In African Newspapers of Nigeria Ltd. vs. Federal Republic of Nigeria (1985) 2 NWLR (Part 6) 137,159 – 160 the Supreme Court held inter-alia as follows –

“Although the courts have great powers yet, these powers are not unlimited. They are bound by some lines of demarcation…….Courts are creatures of statutes and the jurisdiction of each court is therefore confined, limited and circumscribed by the statute creating it.”

The jurisdiction of the Tribunal is confined, limited and restricted by the provisions of paragraph 49(2) and (5) of the First Schedule to the Electoral Act, 2006. A preliminary objection cannot be taken in a civil case, where the Defendant has waived or acquiesced to any irregularity or informality or alleged incompetence – see Odive v Odor (1974) 2 SC 31, 37 where the Supreme Court held as follows-

“We think that the learned trial judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at the particular stage of the proceedings when the statement of defence has already been filed and the issue joined between the two parties. The learned trial judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the statement of claim. Another important point in this appeal is that once issues had been joined between the parties including an allegation by the 1st defendant that the marriage between him and 2nd defendant had been made under customary law, it was wrong to entertain a preliminary objection without any further evidence on the merits.”

In the unreported decision of this Court in Appeal No. CA/J/EP/419A/2007 – Murtala Nyako v. Action Congress delivered on 26th February, 2008, this Court considered in extenso the import of paragraph 49 of the First Schedule to the Electoral Act, No. 2 of 2006. The relevant part of the judgment reads as follows-

“I concur. There is no merit in the submission of the learned senior counsel tor sixth respondent/appellant that even if the objection were raised at the close of the trial, paragraph 49(2) and (5) of the First Schedule to the Electoral Act do not shut out the appellants from raising objection against the petition after the close of trial. The provisions do not merely enjoin that an objection should be brought timeously, but also mandated that they should be heard and determined before any further steps are taken in the proceedings. Paragraphs 49(2) and (5) read as follows–

“(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.

(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.” (Underlining mine).

A reading of the above two sub – paragraphs recited together shows that the objection must be brought within a reasonable time and when the party making the application had not taken any fresh step in the proceedings since acquiring knowledge of the defect. In other words, the Tribunal is enjoined to hear and determine the objection before any further step in the proceedings provided the application is brought timeously. It is not in dispute that the application in this case was brought within a reasonable time before the applicant took further steps. But the same was not heard and determined before further steps were taken. The applicant apparently filed his reply and the matter proceeded to hearing at his instance. The request that the hearing and determination of the application be deferred was a move, which could be tactical, made by learned counsel for sixth Respondent/Appellant, and he cannot blame the Tribunal for giving effect to clear and unambiguous words of the provisions of paragraph 49(1) and (5) of the First Schedule to the Electoral Act having goaded it to take the step it took. The non-compliance with the rules of procedure alleged cannot be raised on appeal. The party, having participated in the hearing of the petition, cannot complain or raise objection now. He has acquiesced in the validity of the procedure and will not be permitted to otherwise contend at this stage. See Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt. 220) 647, Noibi v Fikolati (1987) NWLR (Pt.52) 619, Effiong v Ikpeme (1999) 4 NWLR (Pt 606) 260, 272, Adene v Dantubu (1994) 2 SCNJ 130, (1994) 2 NWLR (Pt. 328) 509, 528. The appropriate place to raise objection, in the circumstance of the instant appeal, is at the Tribunal where it was filed. The decision to postpone the argument at the Tribunal was fatal because it is a settled principle of law that whenever a preliminary objection is raised as to the competence of the trial Court to hear a matter, as in the instant case, such a Court is duty bound to determine the objection, one way or the other, before examining the substantive case even where the objection is or appears frivolous. See Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637, 644; Onyemeh vs Egbuchulam (1996) 5 NWLR (Pt 448) 255, 262; Onuoha v NBN (1999) 13 NWLR (Pt 636) 621, 624, Tambo Leather Works Ltd vs Abbely (1998) 12 NWLR (Pt.579) 548, 554 – 5. I agree with the learned counsel for the first – third petitioners/cross- appellants that the intendment of paragraph 49 of the First Schedule to the Electoral Act is to enshrine the principle of waiver. What then is a waiver? It has been held in Kudu v Aliyu (1992) 3 NWLR (Pt 213) 615, 635 per Akanbi, JCA (as he then was) thus

“Where a person having full knowledge of his rights, interests,, profits or benefits conferred or accruing to him under the law but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. He should be held to have waived those rights. Therefore a person will generally not be allowed to complain of an irregularity he has himself accepted and condoned”

See also Odua Investment Co vs Talabi (1997) 7 SCN J 600, 653, (1991) 1 NWLR (Pt 170) 761; Tsokwa Oil Co Ltd vs Bank of the North Ltd (2002) 5 SCNJ 176, 192; Kossen Nig. Ltd. v. Savannah Bank (1995) 12 SCNJ 29; Ojomo v. Ige (1987) 4 NWLR (Pt.64) 216, 244 – 5 and K.T.L. v. Umar (1994) 1 NWLR (Pt.319) 143.”

See also Saude v. Abdullahi (1989) 1 NWLR (Pt.116) 359, Ibeanu v. Ogbeide (1994) 7 NWLR (Pt.359) 697, 716; Ugwu v. Mba (1999) 3 NWLR (Pt.595) 400. The Tribunal at the time it entertained the issue of competence of the petition had lost vires to do so. Thus, its decision is a nullity ab initio.

The second arm of the Appellant’s first issue deals with non-joinder of electoral officers against whom allegation of wrong doings were leveled. It touches upon the electoral officers, returning officer and presiding officers whose conduct were seriously called into question or impugned in the petition. Learned senior counsel read the following passage from the Tribunal’s Judgment –

“No doubt, numerous cases cited by the learned counsel to the 15th and 16th Respondents in support of his arguments on this issue are cases decided under the provisions of the Electoral Act 2002. The present petition is filed under Electoral Act 2006. The relevant provision under the Electoral Act 2006 by which learned counsel is bringing his argument is Section 144(2) of the Act. This Section provides thus:

“(2) The person whose election is complained of is in this Act referred to as the Respondent, but if the Petitioner complains of the conduct of an Electoral officer or any other person who took part in the conduct of the election such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party. Provided that where such officer or person is shown to have acted as an agent of the commission his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party”

This Section is a clear departure from the provisions of the Electoral Act 2002. The proviso under Section 144(2) of the Electoral Act 2006 was never in the Electoral Act 2002. Therefore, since all the cases cited by learned counsel for the 15th and 16th Respondents are cases decided under the 2002 Act these cases could not be relevant. Consequently since INEC the umbrella body, which conducted the election is a party to the petition, we do not see any reason why all the officials or the ad – hoc staff of INEC should be joined as parties to this petition. The proviso to Section 144(2) is clear on this issue which provides that once INEC is joined as a party it is not necessary to join everyone that participated in the election. For the aforementioned reasons, we hold that this application lacks merit and is hereby refused. The petition is competent and necessary parties are before the Tribunal.”

Having held in sub-head A of this issue that the objection brought at the address stage challenging the petition was belated, this sub – issue is equally incompetent. I can, however, not find anything wrong with the reasoning and the conclusion arrived at in the tribunal’s judgment. I agree with it in toto. In a not dissimilar situation, in the case of Murtala Nyako vs Action Congress & Others (supra) this court observed at pages 58 – 59 as follows-

“The various result sheets confirm their claim to the effect that on instruction of the first respondent, the second, third, fourth and fifth respondents directed the first respondent, field officers or agents to cancel dome voting papers used in some parts of the State. It is settled law that if an agent is authorized to do an act as indeed it is manifest in the instant appeal, which is not ex facie illegal the principal assumes full responsibility for his conduct. See Nakyenta vs Thomas & Anor (1975) 5 SC 51, 53; Baker vs Furlong (1891) 2 Ch D 172 and also Chaney vs Maclow (1920) 1 Ch 461. It seems to me that the proviso to Section 144(2) Electoral Act No 2 of 2006 is a declaration of the common law principle stated above. The proviso provides as follows

(2) …….PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to avoid the petition if the commission is made a party.”

It is therefore, unnecessary to join a presiding officer, or agent carrying out the directive of the commission. See Obasanjo v Yusuf (2004) 9 NWLR (Pt.877) 144,185. If the proviso holds the commission responsible for the conduct of its agent it follows that it has to defend the action”

The proviso making the Commission liable for the conduct of its agents that is returning officers, electoral officers, presiding officers or polling officers is conspicuously missing from the Electoral Act of 2002. It is peculiar to the 2006 Act. The decisions of Courts including the Supreme Court and Court of Appeal, voiding election petitions on account of non-joinder of officials whose conducts were impugned under the Electoral Act 2002 are no longer good law. The provisions of the two enactments are not in pari materia. The proviso to Section 144(2) of the Electoral Act 2006 has saved such petitions. They can no longer be voided solely on the account of non-joinder.

The two enactments, that is 2002 and 2006 Efectoral Acts, provide in their respective sections that a returning officer, of electoral officer, a presiding officer or a person whose conduct is complained of be deemed to be a necessary party who should be joined in the election petition otherwise the petition would be void. But the proviso to the 2006 Act tempers the severity or strictness of the sub-section (2) of Section 144 by saving the petition where the commission itself is made a party.

It follows as in the instant appeal where the commission is a party, the non-joinder of a returning officer, an electoral officer or a presiding officer to the election petition will not have any adverse effect on the petition. The petition subsists notwithstanding the non-joinder of the electoral officials whose conducts are complained of or impugned. The Appellant’s issue 1 therefore fails and it is dismissed.

The Appellant’s issue 2 deals with the composition or change in the composition of the tribunal which tried the Petition. The issue sought the determination of the Court as to whether the participation of a member of the Tribunal, who did not take part in the whole of the proceedings, in the delivery of the Judgment did not render the Judgment null and void. Learned senior counsel stated that the election Tribunal commenced hearing on 23rd October, 2007. The coram of the Tribunal on that day were Nabaruma, Chairman, and Oredola, Okon, Okungbowa and Umar, Members. The constitution or membership of the Tribunal remained the same till the 31st day of January, 2008. As of that date, 36 witnesses had been called by the Petitioner while at least 1128 exhibits had been tendered and admitted. Hon. Justice Oredola who commenced the trial of the petition leading to this appeal withdrew from the tribunal on 21st February, 2008 and did not participate again in the proceedings. Upon the withdrawal of Oredola J., as he then was, the four remaining members continued with the trial from 21st February, 2008 till 8th April, 2008 and took about 29 witnesses. On the 15th day of April, 2008, when the Petition came up for continuation of hearing the existing four Judges were joined by Goji, J., who then sat with the other members of the Tribunal till the conclusion of the matter.

It was submitted that the principle that it is mandatory that all members of the Court that gave Judgment to have heard all the evidence has been stated in a plethora of cases. Learned senior counsel, in the Appellant’s brief read the cases of Agbeotu vs Brisibe & Ors (2005)10 NWLR (Pt 932) 1, 18; Onasanya v J.A. Odubela (1964) N.M.L.R 36, 38 Ubwa v Tiv. Area Traditional Council (2004) 11 NWLR (Pt. 884) 427, 434 – 436; All Nigeria Peoples Party v. Independent National Electoral Commission & 300 Ors. (2004) 7 NWLR (Pt. 871) 16, 47 – 48.

Learned counsel submitted further that the case in Ngige v Peter Obi & Ors. 2006 14 NWLR (Pt 999) 1, 130 – 133 should not be followed in the light of the Supreme Court judgment in Wayo Ubwa v Tiv Area Traditional Council (supra. Learned Senior Counsel for Appellant finally submitted that this case is distinguishable from the case of Ngige (supra) which was mainly documentary whereas the present appeal is made up of oral testimony of several witnesses none of whom Goji, J., saw.

Learned senior counsel for the 1st Respondent, after reviewing the facts, submitted that the Appellant having not complained at the election petition Tribunal cannot do so at this stage. See paragraph 49(2) of the First Schedule to the Electoral Act 2006 which stipulates that even where an act is a nullity the same is deemed to have been waived if not raised timeously. See also Ngige v Obi (2006) 14 NWLR (Pt 999) 1.

I am respectfully of the view that the question is answered by the provisions of paragraph 49(2) of the First Schedule to the Electoral Act 2006, which provides as follows

“(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”

The Appellant who acquired knowledge of Goji, J., participating in the proceedings of the Court on 15th April, 2008 nevertheless did not take objection to his participation and cannot at this stage, object. They appeared before him on 17th April, 2008 when the proceedings continued up till 25th July, 2008 when Judgment was delivered. They are deemed to have waived their right to complain. See Odive v Odor (supra), Noibi vs Fakolati (supra) and Ibeanu vs. Ogbeide (supra). The Appellant having waived his right to object to the presence of Goji, J., promptly and timeously, he cannot be heard to complain at the appellate stage. The correct point to take objection was at the sudden appearance of Goji, J., on the bench of the Tribunal which advantage they failed to take. Furthermore, Section 285(4) of the 1999 Constitution states that “The quorum of an election Tribunal established under this Section shall be the Chairman and two other members”. In the instant case, the Chairman and three Members were constant throughout the whole proceedings. The Appellant’s Issue 2 is therefore resolved against him.

As to Issue 3, learned Senior Counsel submitted that the Tribunal erred in law when it heavily relied on Exhibit 1098 (36) to reach its conclusion and nullified the result of the election without taking into account contradictory evidence adduced by the Petitioner/1st Respondent as well as the unchallenged pieces of evidence led by the Appellant. He said that Exhibit 1098 (36) identified by PW13 did not add any value or credit to the evidence since the owners of the cards were not called as witnesses to testify on why they could not vote. There was no evidence linking the voters’ cards to the voters’ register from the polling units where the owners of those purported voter’s cards ought to vote. It was also contended that the lower Tribunal was wrong to have used the non-tendering of Form EC8A as a parameter to determine that election was not conducted in these Polling units since the Petitioner did not call eligible voters to testify that they could not vote and the reason for their inability to vote.

According to Learned Senior Counsel, no burden lay on the appellant to show that election was conducted in the areas where the Petitioner alleged that election did not take place. Since there was allegation of violence, violation of electoral law, manipulation of results, rigging and other malpractices in some wards, the standard of proof should be beyond reasonable doubt and the acts of violence should be linked directly or indirectly to the appellant which was not so in the present case. The allegation of no election, ballot stuffing and over-voting are mutually exclusive and have to be proved separately.

It was submitted that the lower Tribunal acted without jurisdiction and in breach of every known principle of law when it made use of hearsay evidence by drawing up charts and relied on same to nullify the results of some of the wards. The nature of the allegation in respect of which PW17 and PW18 were subpoenaed and tendered documents required oral evidence to prove those allegations. Learned Senior Counsel pointed out that the Petitioner did not predicate his case on inconsistencies in the votes recorded in Form EC8A and the actual number of used ballot papers yet the Tribunal held that the votes recorded for some units were at variance with the number of used ballot papers in Exhibit 1084(3) or 1081 which were bags of used and unused ballot papers produced through subpoena on 29th November, 2007. He contended that the used ballot papers were not counted on polling unit basis in the open Court, yet the Tribunal on its own went behind the parties to the Petition and arrived at a figure inserted in column 8 of the chart as “Number of used ballot papers counted”.

He maintained that it is rather baffling how the Tribunal picked a bag Exhibit 1084(1) and Exhibit 1084(3) and was able to sort them out polling unit by polling unit behind the parties when there was no identifying features on each of the used and unused or purportedly used ballot papers and no evidence was led before the Tribunal on what were the distinguishing features. Since the parties were not invited by the Tribunal to confirm the sorting of the used, unused and purportedly used ballot papers before relying on them, the Appellant’s right to fair hearing was breached. It is the contention of learned Senior Counsel that the Tribunal suo motu drew a chart and heavily relied on it when the Appellant was not allowed to cross-examine on it and the documents used in producing the chart were tendered from the Bar. Learned Counsel submitted that this procedure is not only erroneous but also an infringement of the constitutional right of the Appellant and the appeal should be allowed on this score.

On the issue of exhibits and charts, learned Senior Counsel for the 1st Respondent replied that right from the pleadings down to the evidence and the written addresses of the parties, charts were copiously made a substantial part of the case presented to the Tribunal. The evidence of PW45, 46, 47, 49, 50 and 52 aptly demonstrated in open court facts and figures in tables and chart in the course of trial. Learned senior counsel submitted that it is logical that the Tribunal in resolving all the issues raised by the parties also made some charts and tables while evaluating the evidence. He said that what was in contention before the lower Tribunal was whether all the votes credited to the Appellant in all disputed local governments were valid votes and submitted that in arriving at a decision one way or the other, the Tribunal is bound to declare the votes valid or invalid. Before arriving at that decision, the Tribunal is bound to make use of the figures as presented to it both in pleadings, evidence and written addresses.

Reacting to the submissions made on the evaluation of oral evidence, documentary evidence and the allegation that the Tribunal conducted private investigation in its consideration and use of the evidence placed before it, learned Senior Counsel for the 1st Respondent referred to the Ruling of the Tribunal of 15th March, 2008, wherein he submitted that the Tribunal was right to have made use of Exhibit 1082(5) and indeed all other tendered ballot papers relating to the election in the manner they did particularly as the 1st Respondent (Petitioner) took every step to ensure that every single ballot paper was tied by evidence to every unit, ward and Local Government from which they emanated.

Since 1st Respondent had pleaded that election did not take place in some named affected areas and the Appellant maintained a contrary stand that the election did take place in those areas, the onus of tendering the result sheets of the purported area where the election took place shifted to the Appellant. Learned Senior Counsel pointed out that the Appellant and all other counsel had allowed the evidence of PW47 and his reports to be used in evidence which evidence included all aspects of fixation of Exhibit 1082(5) of Ekan Ward of Akoko North East Local Government and indeed all the ballot papers tendered in the respective areas to which they relate and PW47 was not challenged, controverted or cross examined as to the veracity of these points.

The arguments canvassed in issue 3 are a pot pourri because the complaints are varied and multifarious. They include the following-

1. Evaluation of oral and documentary evidence.
2. Allegation that the Tribunal conducted private investigation in its consideration and use of the evidence placed before it, that is picking out Exhibits 1084(3) and 1084(1) and sorting out polling unit by unit the number of used ballot papers before posting in Column 8 of the chart.
3. Allegation of violence, rigging and other malpractices in some wards not linked directly or indirectly to the Appellant and not proved beyond reasonable doubt.

I will start with the second complaint dealing with the sorting out of ballot papers, which were posted in Column 8 of the chart because the first complaint on evaluation of oral and documentary evidence will be dealt with extensively when considering the other issues in the appeal.

After the Petitioner/1st Respondent had adopted his depositions as PW56 and was cross-examined, Mr. Olanipekun, learned SAN, applied that Exhibits 1076 – 1085, the ballot papers both used and unused in the contested areas which were in different bags be counted. The application was opposed by all the counsel representing the Respondents. In its Ruling of 12th March, 2008, the Tribunal held that the application had merit and ruled as follows:-

“The ballot papers shall be counted in the presence of 2 representative of the Petitioner and the 1st, 2nd, 3rd – 14th and 15th and 16th Respondents each. The counting shall commence today and the conclusion shall be reported on 15th March, 2008 when the hearing of the Petition shall continue” (See page 5084 of the Records).

Because of the problem that arose when Exhibits 1076 – 1085 were to be counted and the admission of bundles of ballot papers without the ballot boxes, learned counsel for the Petitioner applied for a variation of the order made on 12th March, 2008. In acceding to the request, the Tribunal ordered as follows on the 15th of March, 2008:-

1. “That the physical counting shall be done by 2 persons to be brought by each of the Petitioner and 1st Respondent who will do the counting on alternating days.
2. That the ballot papers in each bag, as the bags are presented to the Tribunal, shall be counted singly by the persons mentioned above and their numbers recorded by the Tribunal Secretary or her representative who shall be present while the counting is being done.
3. ……(See page 5089 of the Records).

In the light of the order made by the Tribunal on the 15th of March, 2008 the contention by the Learned Senior Counsel for the Appellant that the Tribunal on its own picked Exhibits 1084(1) and 1084(3) and sorted the used number of ballot papers on polling unit basis which it inserted in column 8 cannot be correct

On the complaint of allegations of violence, rigging and other malpractices, which learned senior counsel said were criminal in nature, and which needed to be proved beyond reasonable doubt, the Petitioner who makes criminal allegations in an election petition but claims he won the majority of lawful votes in that election will still be entitled to his relief even when he fails to prove the crime alleged beyond reasonable doubt, as long as he succeeds in proving civil allegations, which amount to non-compliance with the Electoral Act. See Omoboriowo V. Ajasin (1984) 1 SCNLR 108 at 152 – 153, where the Supreme Court held as follows –

“Finally, once the figures are false, whether the falsification was done by the 2nd Appellant or not, the fact remains that the 1st appellant cannot and should not be elected on figures other than the majority of the votes cast at the election… Even to carry this issue further the pleading of the criminal falsification, if there had been one, must, at least include some falsification which may either be criminal or not. The pleading of the greater certainly includes the less and if in proving the less, the case of the Plaintiff is proved, he could not and shall not be penalized for the pleading the greater – see Arab Bank Ltd. V. Ross (1952) 2 QB 216 per Denning, LJ., at P.229 where he stated-

“Even with ordinary common sense, if I happen to find my coat with AB, and on a claim of recovery thereof, I alleged that AB stole the coat, the fact that I could not prove AB to be the thief does not deny me recovery of my coat once I establish the coat to be mine and not AB’s”.

Once Chief Ajasin established he had the majority of the votes, the fact that he had failed to prove any crime that went behind the scenes, should not deprive him of his otherwise legitimately proved case. He has eminently proved his claim that Chief Akin Omobiorowo was at the time of the election not duly elected by a majority of the lawful votes cast at the election”.

Learned senior counsel for the Appellant argued that the allegation of violence, rigging and other malpractices were not linked directly or indirectly to the Appellant. By making this submission, learned senior counsel appeared to be oblivious of the deleterious effect Exhibits 1101(1) – (10) and 1150 had on the Appellant’s case. (See pages 6449 to 6452 of Volume 12 of the Record). Exhibit 1101(1) – (10) dated 11th June, 2007 is addressed to “Dr. Olusegun Agagu, Executive Governor of Ondo State”, and titled “The Untimely Death of Mr. Waribi Idepe of Arogbo”. The relevant portion of the letter reads as follows –

“…..As you are aware, my dear brother Mr. Waribi Idepe, a Part III Mass Communication Student of the Adekunle Ajasin University, Akungba, Akoko, and a very strong member of the PDP died on the 6th of May 2007 at the University Teaching Hospital, Ibadan. Hon. Kingsley Kuku must have told your Excellency the unfortunate incident, which led to the death of this promising young man…..

I do not want to go into details but I would like to inform your Excellency that this young man died of the wounds he sustained from a gun fired by one of the PDP armed thugs at Agadagba-Obon on the 14th of April 2007 while in the process of rigging the election for your good self and Hon. Kele Bolodeoku of the Ose-Odo State constituency….”

Exhibit 1150 addressed to “The Chairman, Ese-Odo LG, Igbekebo” is the reply to the above reproduced letter, and it is signed by one “P.P. Monde, Esq., for Secretary to Ondo State Government”. It reads thus-

“I am directed to request you to arrange to bring Mrs. Idepe to Akure to facilitate the payment of the State Government commitment towards the death of her son (Mr. Idepe Waribi). Please note that this is urgent”.

Obviously, the foregoing knocks the bottom out of the submissions of learned senior counsel for the Appellant.

Before concluding Issue 3, there is one point which was raised repeatedly in the Appellant’s brief of argument. It is the contention of the Appellant that the ballot papers were examined by the Tribunal in the comfort of its chambers and thereby did clustered justice. The ballot papers were admitted and accordingly marked exhibits 1076 – 1085 at page 4726 – 4781 of volume 9. The same, that is, the ballot papers were then admitted unit by unit at pages 4808 to 4810 of volume 10. The ritual of counting was done at the instance of the Respondent. The counting and report of counting can be found at pages 5089, 5379 – 5380, so the Appellant’s contention is therefore not tenable.

The Appellant’s Issue 4 deals with the admissibility of documentary evidence. On the issue of the SSS report, learned senior counsel for Appellant contended that the Agency was subpoenaed to produce the report. The witness sent by the Agency denied the existence of the document, nevertheless the Respondent tendered the document. Learned counsel for the Appellant urged the Court not to attach any weight to it because the fifth Respondent’s witness, one Ahmed Musa, who was summoned to tender it, denied the existence of the document.

This submission of the learned senior counsel is adroit but not candid. The fact that the document, which was alleged not to be in existence, was produced and tendered in evidence belied the testimony of the witness denying its existence. It demonstrated that the witness could not be telling the truth. He has knowingly perjured. The documents were tendered, admitted and marked as exhibits 1073(1 – 3) and 1100 (1 – 9).

The denial of an ungentlemanly officer of the security services does not refract from the evidential value of or weight to be attached to the documents which are in any case relevant. The Supreme Court and indeed this Court have held on a number of cases that evidence relevant to a case is admissible, however obtained. The illegality may only attach to the person who obtained it illegally – See Torti v. Ukpabi (1984) 1 SCNLR 214, Sadau v. State (1968) 1 All NLR 124. In Torti v. Ukpabi (supra) the Supreme Court per Obaseki, JSC, at page 228 said-

There is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained.”

Also at page 239 Aniagolu JSC, stated that-

“Again as was held in Kuruma v. The Queen 1955 AC 199 the test to be applied both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.”

In Sadau v. State (supra) at page 129 the Supreme Court stated thus per Coker JSC.

“……The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained.”

It is surprising that learned senior counsel for appellant is encouraging the misconduct of a witness who denied the obvious. Learned senior counsel was himself aware of the existence of these documents before the commencement of the trial. I am encouraged in this view by the Petition and the reply of the first Respondent/Appellant thereto. The Petitioner pleaded the reports at paragraph 26 of the petition. (See page 70 of the record of proceedings). The first Respondent/Appellant pleaded the same report in his reply to the Petition at page 2616 of Vol. 6 of the record of proceedings. In the circumstance, learned senior counsel ought not to have swallowed hook, line and sinker, the denial of the security services officer subpoenaed to tender the reports.

Learned counsel for the Appellant conceded that the reports were tendered with the concurrence of counsel across the Bar. In other words, where the evidence complained of is not by law rendered inadmissible a party, may by his conduct at the trial be prevented from raising objection to evidence he allowed in with consent or without objection on appeal. If evidence is admitted at the trial Court without objection or by consent of the parties or was used by the opposite party then it would be within the right of the trial Court to act on it; this Court will not entertain any complaint as to its admissibility. See Gilbert vs Edean (1878) 9 Ch.D 259, 269 where Cotton L.J. opined thus-

“But I must add this where in the court below, the evidence, not being strictly admissible, not being one on which the court can properly act, if the person against whom it is read does not object but treats it as admissible, then before the Court of Appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.”

See also Chukwura Akunne v. Mathias Ekwune & Ors. 14 WACA 59, Salau Olukade vs. Abolade Alade 1976 All NLR 56 at 61 – 62 Etim & Ors. vs. Chief Okon Udo Ekpe & Anor. (1983) 3 SC 12, 36 – 37.

The document complained of is only admissible under certain conditions. It is not by law inadmissible in any event and in all circumstances. The Appellant cannot at this stage raise a finger against the use to which the Tribunal put it. Where inadmissible evidence is produced in evidence, it is the duty of the opponent or his counsel to object immediately to its admissibility. But, where such other party fails or neglects to raise any objection to its admissibility at the trial, he cannot thereafter, object to its admissibility. Moreover, where the evidence complained of is admissible under certain conditions and the opposing party failed to object to its admissibility at the trial court or Tribunal or, by implication consented to its admissibility or the evidence was properly used for the purpose of cross-examination notwithstanding that the condition precedent for its admissibility is not complied with, he cannot be heard to raise objection as to its admissibility in this Court.

Similarly, the admissibility of all the electoral materials tendered at the Tribunal without objection at the point of tendering are impliedly admitted with consent of the parties. The admissibility of those electoral materials cannot, at this stage, be contested. They are squarely in evidence and the Tribunal was entitled to act upon them, and rightly did.

The Appellant’s grouse in his Issue 5 is that the Tribunal fell into grave error when it based its decision on evidence led on facts, which were not pleaded thereby setting up a different case for the Petitioner/first Respondent. Learned counsel contended that they made the submission dispassionately in view of the overall imperativeness or importance of pleadings in litigation including especially election petition. Learned senior counsel then read the cases of Abubakar v Joseph (2008) 13 NWLR (Pt 1104) 307, 312 and 332 – 333 and Shell B.P. vs. Abedi (1974) 1 SC 23, 45 and alleged that the Tribunal jettisoned this time hallowed principle of law on imperativeness of pleadings. Learned senior counsel took instances of where the Tribunal did so, on local government basis. I shall consider his complaints too seriatim.

Learned counsel for the Appellant agreed that the first Respondent pleaded in regard to various wards in Akoko North -East in paragraph 21.2 of the Petition. Learned counsel for the Appellant also conceded that it was generally averred that there was no election in all the wards in the Local Government. It is still the submission of the Appellant that the first Respondent in paragraph 21.2(1) of his pleadings that the electoral materials meant for the units in Ilepa II, Ikado I, Ekan, Edo and Oyinmo wards were hijacked and seized by thugs at gun point and which thugs sponsored by the Appellant and his Party. It was also the submission of learned senior counsel for the Appellant that the first Respondent in paragraph 21.2 (vi) pleaded that the result in respect of Ekan, Ikado I, Ilopa I, Ilepa II, Isowopo I, Iya Meta II, Oorun I, Oorun II and Oyinmo were fictitious, fraudulent and therefore invalid.

Learned senior counsel finally submitted that the Tribunal’s conclusion at page 7015 that election in polling units 004, 007, 009 and 012 were invalid for various irregularities was reached without any regard to pleadings. It is respectfully unfair for the learned senior counsel to the Appellant to claim that the Tribunal, without more, tersely concluded that the result of the wards enumerated above “were invalid for various irregularities” The Tribunal considered evidence of the witnesses called in the light of the various averments and ascribed probative value to them. Learned senior counsel has already graciously conceded that the Tribunal ascribed probative value to them before coming to a conclusion in respect of each of the averments or complaints of the Petitioner. (See pages 7008 – 7021 of the record). It had, from pages 7012 to 7021, considered, aided by charts, each of the wards in turn before making determination on each one of them. Learned senior counsel for the Appellant failed to attack the finding of the Tribunal on each of the wards. He, however, finds it convenient to assail the summary of the Tribunal on those wards.

The Tribunal after evaluating the evidence of the witnesses and ascribing probative value to the evidence of witnesses called in Akoko North-East Local Government at pages 7012 directed itself rightly as follows-

“We would now proceed to examine the voters’ register and unused voters’ cards, form EC8A, form EC8B used ballot papers tendered in respect of these wards with a view to ascertain the veracity of the evidence of witnesses on both sides. See the table below for wards 1, 2, 3, 5, 6, 11, 12 and 13 respectively.”

It then came to the turn of Ikado I ward 3 at pages 7014 and the Tribunal found inter alia as follows:-

“…We have observed cases f discrepancies between the number of registered voters and the entries in forms EC8A and form EC8B and in particular in units 004, 007, 012 and unit 009. Hence in units 001, 003, 005, 006, 008, 010 and 013 the entries in form EC8A tallied with the entries in form EC8B respectively. For these reasons, it is our view that election in units 004, 007, 009 and 012 of ward 3 was invalid for various irregularities. However, we find and hold the result in units 001, 002, 003, 005, 006, 008, 010 and 013 to be valid and in substantial compliance with Electoral Act.”

The criteria used by the Tribunal to accredit and discredit the unit results are set out in the passage recited above. It is clear from even common sense that it was failure to meet these standards that were referred to as “various irregularities”. The same yard stick, which the Appellant is questioning, was used in validating 8 of the 13 units in the ward in his favour and invalidated only four against him.

It should be borne in mind that parties as well as the Court are bound by the pleadings. The substance of the Petitioner’s case is that there were no elections held in six Local Government Areas of the State on 14th April, 2007, a case, the Appellant was incidentally the first Respondent before the Tribunal, appreciated and effectively met by averring that not only was there election, the same was free and fair. It is on the basis of this that the Tribunal proceeded. It did not accept that there was an election in Ilepa II ward 06 because the primary result of an election, form EC8A were not produced, and where produced were violently in disagreement with form EC8B, which is supposed to be a direct product of the former. In Ilepa II ward 6, no form EC8A was produced and only 92 ballot papers were used in unit 001 nevertheless 600 voters allegedly cast their votes. The same scenario pervades the exercise at Oorun ward 12 where no single form EC8A was produced for the 7 units of the ward and there were higher in most of the units that accounts of ballot papers used depict.

In Ose Local Government, the Tribunal follows the method adopted. It noted that out of nine unit results for Afo ward only 2 results were produced in evidence. The Tribunal for this reason nullified the election in the ward. The evidence of RW16, RW21 and RW22 were properly impliedly rejected. The reasons being that there was no evidence of holding of the election they claimed to have participated in, the failure of the Appellant to produce the relevant forms EC8A was fatal to his defence. The tribunal rightly nullified the ward result when majority of the ward results, 7 out of the nine, were discredited. See Yusuf vs. Obasanjo (2005) 10 NWLR (Pt.956) 96, 178. The absence of the primary evidence of the votes cast at the polling booths, forms EC8A discredits the oral testimony of the three Respondents’ witnesses, RW16, RW21 and RW22. If there was election at which they allegedly voted, the relevant polling booths’ results of the purported election ought to have been produced, but results for only two of the nine units were tendered, and the two units’ results produced and admitted in evidence betrayed discrepancies between the relevant forms EC8A and EC8B.

The remaining results of the units in the other local governments were determined on the ground of discrepancies between electoral materials such as voters’ registers, form EC8A, EC8B, accounts of used ballot papers vis-‘a-vis scores recorded either on form EC8A or form EC8B or want of production of form EC8A which invariably are within the contemplation of the pleadings of the first Respondent.

In the circumstance, this Court affirms the decision of the Tribunal nullifying the votes of the units’ results, which are without the relevant form EC8A or where they were in conflict with the result shown in form EC8B.

It is pertinent to look at other aspects of this issue. The first one is Ayesan – ward 5 with 12 units or polling booths. Forms EC8A were produced for only 4 of the polling booths, viz units 4, 7, 8 and 10 and even there it is only in unit 7 that the result shown in form EC8A agreed with the entry on form EC8B. In other words, the results shown on form EC8A for these units were not reflected on the relevant form EC8B. The question now is – what are the sources of the results for these three units as well as the other 8 units in respect of which no form EC8A were produced? It is a reasonable inference that they had no basis or that no credible election was conducted in substantial compliance with the Electoral Act in majority of the units.

The Tribunal then rejected the evidence of the forty-seventh Petitioner’s witness that one R.A. Akintemi, who served as PDP agent, was a political officer holder on account that it was not pleaded. It however accepted his evidence that the same Akintemi claimed to have acted in three wards which are kilometers apart and in fact signed the forms EC8B for the three wards as PDP agent for these wards. He signed forms EC8B for Ago-Alaye Ward 2, Araromi Obu ward 4 and Ayesan ward 5. The respective forms EC8B were admitted in evidence as exhibits 832(1) – (2). The Tribunal after looking at them and was satisfied that they were signed by the said Akintemi nullified, rightly in my respective opinion, the results of the election in the 3 wards of Ago-Alaye ward 2, Araromi – Obu ward 4 and Ayesan Ward 3. The Tribunal reasoned as follows in arriving at its decision-

“Having regard to the fact that the three wards are several kilometers apart and the collation of units results into form EC8B was supposed to be done at the same time, at different wards collation centres, the said R.A. Akintemi could not have signed those forms at the wards collation centres. The conclusion to reach is that he signed them at places other than the collation centres. As regards those forms, his signatures on them has constituted devastating virus, which has destroyed the collation in the three wards.”

The finding of the tribunal is impeccable. It is entitled by virtue of Section 74(1)(g) of the Evidence Act Cap E14 of the Laws of the Federation 2004 to take judicial notice of geographical divisions of the world. The relevant paragraph reads as follows:

74(1) The court shall take judicial notice of the following facts-

(a) x x xx x

(g) The divisions of times, the geographical divisions of the world, and public festivals, feasts and holidays notified in the Gazette or fixed by Act or Law; (Underlining mine).

The Tribunal without pleadings and evidence can take judicial notice of the boundary lines of wards and the distance between one collation centre and another.

The submission of learned senior counsel for the Appellant that no provision of the Electoral Act 2006 prohibits the same person from acting as ward collation agent for the same political party in more than one ward, is without merit. I agree with the learned senior counsel that the provision of Section 46 of the Electoral Act 2006 is clear and unambiguous, but cannot agree that it does not contain such a prohibition. I agree further that it is trite that when a provision of an enactment is clear, plain and unambiguous, as in the case of Section 46 of the Electoral Act, it ought to be given its ordinary meaning. See Kola Adefemi & Anor. vs. M.E. Abegunde (2004) 15 NWLR (Pt.895) 1 at 26 – 27. Section 46 provides as follows:

“46(1) Each Political Party may by notice in writing addressed to the Electoral Officer of the Local Government or Area Council appoint a person (in this Act referred to as a “polling agent”) to attend at each polling unit in the Local Government of Area Council for which it has candidate and the notice shall set out the name and address of the polling agent…..”

The relevant part of this Section is “appoint a person (…..) to attend at each polling unit”. It talks of appointment of a person to attend at each poling unit. This rules out the possibility of appointing a person to attend at more than one polling unit. In any case, the Section to which this Court is referred to by learned senior counsel for the Appellant is not apt. the Section deals with appointment of a polling agent at a polling station and not of a collation agent. In the circumstances, the nullification of the results of the three wards of Ago Alaye, Araromi – Obu and Ayesan is proper and is affirmed.

In Ugbo IV Ward 10, Ugbo V Ward 11 and Ugbo III ward 12, learned senior counsel for the Appellant conceded that the wards could be accommodated under the facts averred in sub-paragraph (xiv) of paragraph 21.7 of the petition but submitted that the allegations contained in the sub-paragraph and paragraph do not avail the Petitioner/first Respondent because the allegation contained in the said paragraphs are either that there was no election at all or that they are criminal in nature and has no bearing on lack of accreditation of voters or existence of discrepancies in the entries in electoral forms. In my respectful opinion, lack of accreditation is the evidence to establish the allegation that there was no election and need not be pleaded. It is trite that only facts need to be pleaded and not the evidence required in establishing the averment. In furtherance of this, the Petitioner produced relevant voters’ register, which do not bear evidence or accreditation coupled with existence of discrepancies in the entries in electoral documents or lack of some vital electoral documents.

Learned senior counsel for the Appellant, with regard to Ugbo IV Ward 12, where the Tribunal held that it could not prefer one to another of the two forms EC8B tendered, since both were certified by the INEC, submitted they should explain the disparity in the two forms EC8B placed before the Tribunal. I think the burden of resolving the conflict was not on the first Respondent. The burden of proffering explanation in the circumstance squarely falls on the third Respondent, the maker of the two exhibits 553(1) and 553(2). In the absence of explanation coming from the third Respondent, or the Appellant who seeks to rely on them, the two documents should be treated as conflicting evidence, which should be ignored. There is, therefore, no substance to the Appellant’s complaint on Ilaje Local Government.

On Irele Local Government, learned senior counsel for the Appellant again raised the issue of the Tribunal countenancing and giving effect to the testimony of PW32 whereas no facts were pleaded to accommodate the substance of the evidence. Learned senior counsel for the Appellant argued that while PW32 gave evidence of violence, massive rigging of the election, snatching of ballot materials and multiple thumb printing of ballot papers by thugs of the Appellant, the only paragraph of the pleadings concerning Irele V ward 10 to which PW32 testified is devoid of violence, massive rigging of election or snatching of ballot materials.

I am respectfully unable to agree with learned senior counsel for the Appellant submission that the only plead of the first Respondent on Irele V ward 10 was as per paragraph 21.6(x)(i) which reads as follows –

“Form EC8B for Irele V ward 10 is not signed by any party and the form is severally altered without any endorsement.

The Petitioner pleaded in paragraphs 21.6(x)(i) and (j) of his Petition as follows:-

“Your Petitioner states that in the entire Irere Local Government Area, no votes were counted at any polling unit and no result was declared. No results were declared at the ward collation centres and the Respondents only concocted fictitious results contained in several INEC Forms. All ballot boxes and papers hijacked by thugs and agents of the 1st and 2nd Respondents were later in the day of the purported election taken by fierce looking soldiers of the 19th Mechanized Battalion of the Nigerian Army to the house of a political office holder in the Ondo State Administration headed by the 1st Respondent and votes allocations were later made in the said political office holder’s house. The said political office holder later signed INEC Form EC.8C for Irele Local Government. The Petitioner shall found on the INEC Forms EC.8A, EC.8B and EC.8C concocted by the Respondents for the 10 wards of Irele Local Government Area which were recovered from the Akure Office of INEC upon inspection and which Forms, amongst others, contain the following anomalies amongst many others

(a) xxxxx

(i) Form EC.8B for Irele Ward 10 is not signed by any party agent and the Form is severally altered without any endorsements.

(ii) Many of the INEC Forms EC.8A, EC.8B and EC.8C relating to Irele Local Government Area subsequently obtained from INEC on application for inspection and discovery were later found to have been signed by serving political office holders as agents of the 1st and 2nd Respondents.

This averment is consistent with the first Respondent’s case that there was no election and that the results do not emanate from designated polling booths. In the circumstance, the submission of learned counsel for the Appellant is not only erroneous but misleading.

In Okitipupa Local Government, learned senior counsel claimed that the Tribunal once more abandoned the issues joined by the parties to set up another case for the first Respondent/Petitioner. The new case allegedly made for the first Respondent herein is in respect of Iju-Odo/Erekiti/Iju-Oke ward 5 of Okitipupa Local Government where the Tribunal held that –

“Evidence that up to 4.30pm on the Election Day no electoral materials were delivered to the units was not controverted.”

Learned counsel then submitted that the decision of the Tribunal in this regard cannot be supported by pleadings. This submission again is misconceived, the first Respondent’s case had always been that there was no election for various reasons including diversion of electoral materials and violence.

The finding of the Tribunal set out above is another evidence of no election. There can be no election in a polling station or stations where voting materials were not delivered until far beyond the close of poll. It is evidence which does not require pleading contrary to the contention of learned senior counsel for the Appellant.

Before closing this issue, and in furtherance of imperativeness of pleadings urged on us by learned senior counsel for the Appellant, it is incumbent on me to examine whether or not the Appellant as the first Respondent to the Petition or the person who was declared winner and therefore returned as the Governor of Ondo State at the election held on 14th April, 2007 complied with the provisions of paragraphs 12 and 15 of the First Schedule to the Electoral Act, 2006. Where the Petitioner/First Respondent herein claimed that he scored the highest number of lawful or valid votes cast at the election as in the instant appeal, the first Respondent that is, the Party declared the winner is required to comply with the mandatory provisions of paragraph 12 of the First Schedule to the Electoral Act No. 2 of 2006. It requires the Respondent to set out clearly in his reply particulars of the votes which he intends to object to demonstrating how to prove at the hearing that the Petitioner is not entitled to be returned. Sub-paragraph (2) of paragraph 12 of the First Schedule to the Electoral Act No. 2 of 2006, which is pertinent, reads as follows:-

“(2) Where the Respondent in an election petition, complaining of an undue return and claiming the seal or office for a petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the Petitioner”. (Underlining mine).

The provision demands much more than the reply merely denying joining of issues with the Petitioner and even averring to additional facts. This is just a basic requirement in civil proceedings, which has been provided for in paragraphs 12(2) of the First Schedule of the Act.

Paragraph 15, which requires much more than is demanded under paragraph 12(2) provides as follows:-

“15. When a Petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or returned at the election shall set out clearly in his reply particulars of votes, if any, which he objects to and the reasons for is objection against such votes showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.” “(underlining mine).

Thus, the Respondent is required to specifically put down-

(i) The particulars of the votes he objects to;

(ii) The reason or reasons for his objection against such votes; and

(iii) Show how he intends to establish at the trial that the Petitioner was not entitled to succeed or to be returned.

The consequence of neglect or failure of the Respondent to comply with the provisions of paragraph 15 of the First Schedule to the Electoral Act is that the result tendered by the Petitioner is deemed not challenged or controverted. See Hassan v. Tumu (1999) 10 NWLR (Pt.624) 700, 710 and 712. I have carefully examined the Respondent’s reply, which is in Vol. VI at pages 2541 – 2620 of the printed record of proceeding and cannot locate any averment satisfying the conditions set out in paragraph 15 of the First Schedule to the Electoral Act No. 2 of 2006. The refusal, neglect or failure of the Appellant to satisfy the provisions of the said paragraph has the effect that the result tendered by the Petitioners/First Respondent herein, is unchallenged and uncontroverted. The Tribunal did not decide the matter on facts which were not pleaded nor set up a case other than the one the first Respondent/Petitioner set out to make. Rather it is the Appellant that failed to meet the first Respondent’s case. Issue 5 is also resolved against the Appellant.

I am now to determine the Appellant’s issue 6 and it is important to reproduce the Issue once more in the Judgment in the interest of clarity. It reads as follows:- “Whether the trial Tribunal was right in its interpretation and application of sections 46, 50 and 19 of the Electoral Act 2006.”

Learned senior counsel for the Appellant introduced argument on this issue as follows:-

“The trial Tribunal in the course of its judgment dealt with Sections 19, 46 and 50 of the Electoral Act, 2006. In addressing this issue, it is important to reproduce the said section of the Electoral Act, 2006.”

Learned senior counsel then proceeded to reproduce the three sections except that respectfully he reproduced Section 64 instead of the Section 46 he set out to read. Section 46 deals with appointment of polling agents by political parties while section 64 deals with counting of votes and preparation of forms by presiding officers. I, therefore, propose to confine the determination of this issue strictly to the provisions of Sections 19, 46 and 50 of the Electoral Act. I do not intend to consider any material extraneous to the provisions of these sections. I will not permit myself to be dribbled or dragged into consideration of issue or issues arising from the provision of any other enactments including the provisions of sections of the Electoral Act apart from those identified in this issue.

After the reproduction of the provision of the Electoral Act as observed earlier in this Judgment, learned senior counsel contended that a Court of law in exercising its interpretative jurisdiction must stop where the statute stops on the authority of the Supreme Court in Balonwu v. Ikpeazu (2005) 13 NWLR (Pt.942) 479, 496 and in Buhari v. Yusuf (2002) 14 NWLR (Pt.841) 446 at 533-536. Learned senior counsel further contended that the Tribunal clearly misconceived the meaning and intendment of the said sections of the Electoral Act, 2006 and thereby fell into a grave error with all the attendant absurdity and miscarriage of justice hereby occasioned to the Appellant. He read the portion of the Judgment he is complaining against and argued that it was clear from the quoted part of the Judgment that the Tribunal clearly misdirected itself in relying on Sections 50(1) and 19 of the Electoral Act, 2006 to fault or reject the oral evidence of RW34. It was then submitted that there is nothing whatsoever in the said sections of the Electoral Act vesting the Tribunal with the power to reject the oral evidence of RW34 whose evidence remains credible and un-impeached under cross-examination by the learned counsel for the Petitioner.

Learned counsel further contended that the law is settled that once a piece of evidence adduced by a party before a Court of law or Tribunal is credible, as in the instant case, the Court or Tribunal is duty bound to accept and rely upon such evidence and ascribe probative value thereto contrary to the position of the trial Tribunal on the instant case.

Pray, who decides whether a piece of evidence is credible or incredible? Is it the Court or the parties? Learned senior counsel’s submission to the effect that once a piece of evidence adduced by a party before a Court or Tribunal is credible, as in the instant case, the Court or Tribunal is duty bound to accept and act on it, is, with respect, rather presumptuous. The Tribunal in the instant appeal has found the evidence unreliable and therefore incredible. The only alternative open to a litigant is to appeal against the finding and not to be asserting the contrary. Having not appealed against the finding, it subsists until set aside. It is not within the province of a counsel to assert the opposite and predicate his argument on it.

Be that as it may, the portion of the judgment of the Tribunal on which learned senior counsel for the Appellant predicated his grouse, reads as follows:-

“Furthermore, since the votes register upon which RW34 is relying to show that he voted has lost credibility and by his own evidence he has lost his voter’s card there is no basis for this tribunal to accept his evidence that voting took place and he and others voted at unit 004 of Arogbo II ward 009. We rely on Section 50(1) and 19 of the Electoral Act to show that the voting witness said he did was unlawful because he did not comply with the statutory requirements of these sections.”

Section 19 of the Electoral Act provides as follows:-

“19(1) Whenever a voter’s card is lost, destroyed, defaced, torn or otherwise damaged, the voter shall, at least thirty (30) days before polling day apply in person to the Electoral Officer or any other officer duly authorized for that purpose by the Resident Electoral Commissioner, stating the circumstances of the loss, destruction, defacement or damage.

(2) If the Electoral officer or any other officer is satisfied as to the circumstances of the loss, destruction, defacement or damage of the voter’s card he shall issue to the voter another copy of the voter’s original voter’s card with the word “DUPLICATE” clearly marked or printed on it, showing the date of issue.

(3) No person shall issue a delicate voter’s card to any voter on polling day or within thirty (30) days before polling day.

(4) Any person who contravenes subsection (3) of this section commits an offence and is liable on conviction to a fine not exceeding N200,000 or imprisonment not exceeding two years or both.

Section 50(1) of the Electoral Act, 2006 is recited immediately hereunder-

“50-(1) Every person intending to vote shall present himself to a Presiding officer at the polling unit in the constituency in which his name is registered with his voter’s card. (Underlining mine).

Clearly, on a careful reading of the finding of the Tribunal, recited above, which the Appellant is quarreling with, the Tribunal did not reject the evidence of RW34 on the strength of Sections 19, 50(1) of the Electoral Act. I agree with learned counsel for the Appellant that they are no authority for rejection of evidence or testimony of a witness. All the Tribunal did was to apply the provisions of the two Sections to the effect that if RW34 who is required, like any other voter, to approach the presiding officer with a voter’s card under Section 50(1) and without prior application seeking and obtaining duplicate voter’s card under Section 19 of the Act, the voting he had claimed to have done must be unlawful. This finding is unassailable. A person who claims to have voted without a voter’s or duplicate of voter’s card cannot be said to have voted lawfully. Ordinarily, no person shall be served with voting paper if he failed to produce a voter’s card and his name appeared on the voter’s register.

It must be remembered that the electoral officer for the Local Government had reported that the relevant voters’ register had been carted away by hoodlums.

The complaint of the Appellant goes to the review and evaluation of evidence and not interpretation of those Sections. Learned senior counsel quoted the passage from page 7105 of the record out of context. In fact, he reproduced the conclusion arrived at by the Tribunal without setting out the reasoning that led to it. The scenario leading to the Tribunal’s conclusion being assailed strenuously commenced at page 7103 of the record. It will be interesting to reproduce same. It reads as follows-

“RW34 identified his picture and details on Exhibit 1258(1) – (18) the voters’ register for his unit. RW34 confirmed that on exhibit 78(15) which was voters’ register for his unit his details were not ticked at all. RW34 stated further that the card he used to vote was marked during accreditation and that he did not know and did not want to see the evidence that INEC produced to show that register of voters for his unit was not available. Exhibits 1258(18)(1) – (18) and 78(1) – (18) are certified copies of one and the same voters’ register for Unit 004 open space of Arogbo II Ward 007 of Ese-Odo Local Government Area. Exhibit 78(1) – (18) was certified on 3rd September, 2007 by INEC. It is astonishing that while on Exhibit 78(15) the picture and particulars of RW34 represented as number 243 and all other registered voters were not ticked, in Exhibit 1258 (15) the same particulars of RW34 and all the other registered voters on the same page were ticked to show that they voted.

Ordinarily, each of the two documents should enjoy the presumption of regularity and genuineness attached to every CTC of a document. This however, is not an ordinary situation because the same document is telling lies about itself in two different circumstances; one saying RW34 voted and the other saying otherwise. We therefore arrive at the inevitable conclusion that the voters’ registers represented in Exhibits 78 and 1258 have so abused the whole purpose of the presumption of regularity and genuineness that they cannot enjoy such presumption. Furthermore, we cannot pick and choose which of the two voters’ registers to believe in the circumstances. See Section 114(1) of Evidence Act.

We have also looked at CTC of Request for New Ballot Boxes” from Electoral Officer for Ese-Odo Local Government Area to the Resident Electoral Commissioner in Akure, Exhibit 1106(5), dated 18th April, 2007 wherein it was reported that the registers for Units 1 – 12 of Arogbo II were missing. This includes one for Unit 004 of Arogbo II. We note that Exhibit 1106(5), was made before the two voter’s registers were certified. In other words, the two CTC of the voters’ register of Unit 004 of Arogbo II Ward 007. Exhibits 78(1) – (18) and 1258(1) – (18) are not credible.” (Underlining mine).

The Tribunal rejected the voters register on the grounds that-

(a) INEC had written that the voters’ register for the unit where he claimed to have voted was missing. See Exhibit 1106(5).

(b) There were two parallel voters’ registers, Exhibit 1258(1) – (18) and 78(1) – (18) running concurrently and both are certified true copies of the same voters’ register.

(c) (i) Exhibit 1258(1) – (18) was certified on 3rd September, 2007 by INEC while

(ii) Exhibit 78(1) – (18) was certified on 24th august, 2007.

500 Prior to the certifications, it was reported in a letter dated 18th April, 2007 Exhibit 1106 that the voters register for units 1 – 12 of Arogbo II was missing.

(e) On exhibit 78(15) which is for RW34’s unit the picture and particulars of RW34 represented as number 243 and all other registered voters were not ticked whereas the same particulars of RW34 and all the other registered voters were ticked in Exhibit 1258(15).

What is deducible from this analysis is that the election was conducted at two locations, one on Exhibit 1258(1) – (18) while the other at another location on Exhibit 78(1) – (18) which did not hold. It did not hold because of the carting away of voting materials including ballot boxes as shown by Exhibit 1089 and 1106(5). The Exhibits were written by the Electoral officer for Ese-Odo Local Government to the Ondo State Resident Electoral Commissioner stating that election could not be held in Arogbo II because some hoodlums carted away ballot boxes and other electoral materials. Exhibit 1106(5) dated 18th April, 2007 is also a letter written by the third – fourteenth Respondents indicating that 13 ballot boxes for Arogbo I and voters’ registers for Arogbo II units 1 – 12, which incidentally included unit 004 of Arogbo II ward, had also been carted away by some hoodlums. Can any reasonable Tribunal ascribe probative value to evidence of a voter who claimed to have voted in a ward where ballot boxes and Electoral materials including ballot papers had been stolen? The Tribunal was, therefore, entitled to disbelieve evidence of RW34 that he voted lawfully and accepted the Petitioner’s version supported by the third Respondent and his officers that there was no election at the designated voting centre.

The votes purportedly cast in Exhibit 1258(1) – (18) was properly declared unlawful. No worthy and efficient electoral body conducts election on two parallel voters’ registers. Surely the result of such exercise cannot be credible and acceptable. The Tribunal was, therefore, right in its application of the relevant provisions of the Electoral Act No. 2 of 2006. Issue 6 is, therefore, resolved against the Appellant.

On the Appellant’s issue 7, learned counsel for the Appellant read a portion of the Judgment of the Tribunal and argued that what was embedded in the finding and at the root of the further decision of the trial Tribunal to declare the Petitioner elected as the Governor of Ondo State is that all the lawful votes cast for the Appellant had been taken into account. Learned counsel argued that the conclusion is inescapable and logical and must be fool proof in the sense that it does not admit of any error if the judgment of the tribunal must stand. Learned senior counsel for the Appellant, against this background, drew the attention of the Court to the findings of the Tribunal with regard to Apoi II Ward 02. Apoi III Ward 03 of Ese-Odo Local Government where the election results of all polling units were nullified. The issue raised herein touches upon substantiality of the compliance. Before proceeding further with the consideration of the portion of the final order of the Tribunal on which the learned senior counsel founded his submission, it is necessary to reproduce same. It reads inter alia–

“We held that the 1st Respondent was not duly elected and returned by the highest number of lawful votes cast at the Ondo State Governorship election held on 14th April, 2007.”

I agree with the submission of the learned senior counsel for the Appellant that if there is an error in the calculation of the lawful votes cast at the Ondo State Governorship election of 14th Aril, 2007 by the trial Tribunal then the consequential declaration of the Petitioner as the elected Governor of the state cannot stand.

I agree with his further argument still in the Appellant’s brief that if it is shown that the trial Tribunal’s arithmetic is legally or factually incorrect, as it was proposed to be shown, then the Judgment of the Tribunal would be liable to a reversal by this Court.

In Apoi II Ward 002, it was common ground that there were 13 polling units. The tribunal found that mere discrepancies that affected II units, viz units 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 and on account of this, the Tribunal proceeded to nullify the entire wards results, including those of units 12 and 13 “where despite its toothcomb method” it could not find any fault or discrepancy.

The complaint in Apoi II ward 003 was that the Tribunal nullified the results of units 1, 3 and 17 on an error margin of 2 votes, 1 vote each respectively. The full story had not been told. In this ward, the Tribunal had earlier found that the results for ten of the 17 units had been found to be tainted with illegality.

On the facts, the Tribunal found that majority of the units’ results in Apoi III ward 003 and Apoi II ward 002 were unlawful. These are evidence of substantial non-compliance, which entitles the Tribunal to nullify the result for the whole ward notwithstanding the degree of error. In that circumstance, the Tribunal would rightly cancel results for the whole ward or constituency irrespective of whether the results of some units, wards or local government were beyond reproach or the level of error in some units, wards or local governments was marginal. The case of Yusuf v. Obasanjo (2005) 10 NWLR (Part 956) 96, 178 – 181 considered and determined the effect of substantiality of non-compliance. The case of Ojukwu v. Onwudiwe (1984) 1 SCNLR 247 cited and followed in Yusuf v. Obasanjo (supra) is a Supreme Court decision. At page 305 of that report, Uwais JSC (as he then was) stated as follows-

“In all therefore the learned trial Judge found that the election which took place at 52 out of the 138 polling booths was discredited. By inference it follows that the election in the remaining 86 polling booths was flawless. Thus the discredited polling booths were not half as many as those validly used. Nevertheless, the learned trial Judge disallowed the votes in all the 138 polling booths. I think this is a serious misdirection”.

In that case, the trial Court declared invalid the result of the election when only 52 out of 138 polling booths were faulty. The Supreme Court reversed the decision. It is implicit in this Judgment that where more than half of the polling booths or unit results and discredited the Tribunal would be entitled to declare invalid the whole election. The Appellant’s complaint in this issue is unmeritorious since more than half of the votes cast in each of Apoi II ward 002 and Apoi III ward 003 had been found to be unlawful votes. Issue 7 is resolved against the Appellant.

On the Appellant’s issue 8, it was submitted in the Appellants’ brief that the Petitioner/first Respondent herein produced and dumped on the Tribunal a plethora of documents ranging from ballot papers, voters’ registers, unused ballot papers, voters’ cards, election results forms EC8B and EC8C. These were subsequently admitted by the Tribunal despite objections from the Appellant which documents were admitted and marked exhibits 1 to 1283. The Appellant further contended in his brief that no oral evidence was led in-chief whatsoever by the Petitioner or any of his witnesses on any of the exhibits, nor did any of his witnesses attempt to tie these documents to aspects of the case. Curiously in its Judgment, the Tribunal on its own suo motu sorted out and arranged, in the recess of its chambers, polling unit by polling unit ballot papers which had been tendered from the Bar and dumped upon the Tribunal and on which no modicum of oral evidence-in-chief had been led by the Petitioner. It was also contended that the Tribunal further proceeded relying on these exhibits dumped upon it by the Petitioner, and on which no evidence was led, to produce charts in the recess of its chambers.

Clearly, if the learned senior counsel for the Appellant objected to the admissibility of these exhibits at the point of tendering them, he would most certainly had referred me to the page of the record of proceedings where the Appellant objected to the admissibility of these document. It is, however, not correct to insinuate that the exhibits were dumped on the Tribunal by the Petitioner/first Respondent. Learned senior counsel for the Appellant had suggested earlier in this brief that the documents were admitted with the concurrence of both parties with the understanding that they would subsequently object to or cross-examine on them.

Concerning the submission or allegation that ballot papers were dumped on the Tribunal and were not put in evidence on the basis of polling unit by polling unity by the learned senior counsel for the Petitioner and that it was the Tribunal that undertook the responsibility of sorting out the ballot papers into units is not supported by the record of proceedings.

The first respondent herein caused to be issued subpoena to the Independent National Electoral Commission, custodian of voting materials by virtue of section 73 of the Electoral Act, 2006, to produce and tender in evidence ballot papers used in the election for all the disputed areas. The subpoena also requested that the voting papers be tendered on their respective ballot boxes. The subpoena was admitted and marked exhibits 1074(1) – (7). See pages 3708 – 3714 of the record of proceedings in (Vol. VIII). Subsequently, the voting papers were tendered and admitted in evidence through the INEC the third of fourteenth Respondents herein. Consequent upon further directions as to how to proceed in respect of the contents of the bags containing the ballot papers, the Tribunal directed in its Ruling of 15th March, 2008 as follows:

1. That the physical counting shall be done by 2 persons to be brought by each of the Petitioner and 1st Respondent who will do the counting in alternative days.
2. That the ballot papers in each bag, as the bags are presented to the tribunal, shall be counted singly by the persons mentioned above and their numbers recorded by the tribunal’s secretary or her representative who shall be present while the counting is being done.
3. That the counting exercise shall not preclude the Tribunal from continuing with the proceedings in the petition. The counting exercise shall commence today and end on or before 1st April, 2008. These orders are made without prejudice to the rights of the parties to apply to the registry of Tribunal to inspect or use the exhibit in the custody of the Tribunal.”

The exhibits were produced and tendered on the record by sixth Petitioner’s witness, one Toyin Abegunde, the representative of INEC and the fourth respondent, Resident Electoral Commissioner, Ondo State, contrary to the contention of the learned counsel for the Appellant that it was learned counsel for first Respondent that tendered the documents. See the proceedings of 29th November, 2007.

The contention of the learned senior counsel for the Appellant that no modicum of oral evidence in chief was produced on the documents is erroneous. The provisions of the Electoral Tribunal and Court Practice Directions dispensed of oral evidence in-chief. The witnesses, are to enshrine their evidence in-chief in depositions, which will be adopted at the trial by the deponents who will then be cross-examined and be re-examined. See paragraph 4(1) and (3) of the Practice Directions which provides as follows-

“4(1) Subject to any statutory provisions or any provisions of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses.

x x x x x

(3) There shall be no oral examination of a witness during his examination-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.”

It is clear from the fore-going provisions of the Election Tribunal and Court Practice Directions, that facts are receivable in evidence by witness’ statements and viva voce examination of the witnesses.

After leading a witness to adopt his statement, he can then be cross-examined and re-examined viva voce. Pursuant to the inspection carried out by the first Respondent, Ogundeji Irogu, forty-seventh Petitioner’s witness deposed to two witness statements on 18th February, 2008 giving copious and full account of the contents of the bags containing ballot papers which evidence was not controverted challenged or impugned. The forty-seventh Petitioner’s witness in his testimony covered all the contents of the bags containing used and unused ballot papers tendered as exhibits 1076 – 1085. He tied or related these exhibits to the respective polling units, wards and local governments. He also demonstrated the defect in each of the ballot papers contained in Exhibit 1076 – 1085 in compliance with the order of the Tribunal.

The submission of the Appellant that he had no opportunity to “cross-examine” any witness on the ballot papers cannot be correct. The forty-seventh petitioner’s witness who testified on the ballot papers was tendered or offered for cross-examination after adopting his two statements but the Appellant declined to seize the opportunity. The Appellant elected not to cross-examine forty-seventh Petitioner’s witness who identified and testified on his findings on the ballot papers after his inspection. His testimony remained unchallenged uncontroverted and unimpugned. The trial court was therefore entitled to act on it. See Amadi v. Nwosu (1992) 5 NWLR (Pt.241) 273, 284 where Supreme Court per Nnaemeka-Agu, JSC held as follows:

“It is a settled principle of law that where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should if he does not accept the witness’s testimony as true, cross-examine him on the fact, or at least show that he does not accept the evidence as true. Where as in this case, he fails to do either, a court can take silence as an acceptance, that the party does not dispute the facts.”

See also Ajao v. Alao (1986) 5 NWLR (Pt.45) 82, Leadway Assurance Co. Ltd. v. Zeco Nigeria Ld. (2004) 1 NWLR (Pt.884) 316, 329.

The Tribunal was, therefore right to have acted on the exhibits and ballot papers relating to the election in the manner it did because the Petitioner took steps to ensure that the voting papers were tied by credible evidence to every unit, ward and local government from which they derived. The postulation of the Appellant that the electoral materials were merely dumped on the Tribunal respectfully is, on the record, unfounded. The documents were produced in evidence from proper custody through sixth petitioner’s witness, an official of the third Respondent. Although the ballot papers were required to be stored in ballot boxes, if the third and fourth Respondents, INEC and the Resident Electoral Commissioner, to breach the law and store them in bags, the Respondents to the Petition cannot complain. They should lie on their bed as they made it. An innocent citizen should not be made to pay for their transgressions.

The last grouse the Appellant ventilated under this issue relates to the charts. The Appellant has by his brief unfairly castigated the Tribunal for the statistical analysis it did in the Judgment. The impression being created is that the tables and charts in the Judgment were strange and uncalled for and without prompting from the parties. It is an attempt to show that the parties did not provide the basis for the method adopted by the Tribunal in its Judgment. It is significant to note, contrary to the picture painted by the Appellant, right from the inception of the Petition down to evidence adduced through written addresses of the learned counsel for the parties, charts were freely and extensively employed in the presentation before the Tribunal. In the Petition presented by the first Respondent, charts or tables formed a substantial part of it. Charts also formed a large part of the Appellant’s reply to the Petition. The reply contained 22 charts. In addition to these charts embedded in the reply, there were 39 annexure numbered 1 – 39 attached to the Petition.

At the close of pleadings, the Appellant’s reply carried 61 charts for the Tribunal to contend with. PW45, 46, 47, 49, 50 and 51 demonstrated in open Court facts and figures contained in tables and charts in the course of their testimony. In fact their respective witnesses’ statements extensively elaborated with charts and tables. The Appellant made use of 80 charts in his own address. It is, therefore, reasonably deducible that the Tribunal, in resolving all the issues raised by the parties in their respective charts and tables while evaluating the evidence, should also adopt the same method. The submission of the learned senior counsel for the Appellant in the Appellant’s brief is misconceived in the circumstance of this case. The Appellant and first Respondent made charts the corner stone of erecting or advancing their case.

At that stage, the Tribunal was evaluating evidence of the case made by the parties through their pleadings, evidence adduced and addresses of counsel. Since the parties were offered opportunity to address on the charts before the matter was reserved for Judgment. I am respectfully of the firm view that they were not entitled to further right of address unless and except it is desired to reduce the proceedings to a circus show. In Ngige v. Obi (supra) where the parties did not provoke the use of charts and, therefore, had no opportunity for addressing the Tribunal on charts when that Tribunal decided that use of chart was desirable to illuminate its Judgment and made use of chart, this Court affirmed the decision by rejecting the Appellant’s argument that it had no chance of addressing that Tribunal on the chart, appendix 4 used in the Judgment. It follows that, even if the parties had not depicted their petition, reply and addresses with charts and the Tribunal had in its Judgment decided to clarify issue or issues in its Judgment, parties would not be entitled to a right to comment or address on the charts. Consequently, this issue also has no merit and therefore fails.

On the Appellant’s issue 9, I propose to set down the formulation. It reads as follows:

“This issue borders on whether or not the Governorship/Legislative Houses Election Tribunal was justified in omitting the result of units 8, 18 and 24 Oniparaga Ward 9 of Odigbo Local Government Area in the final computation of the result of the election for the Ward and State when the tribunal did not nullify the election results nor found any fault with the results of the units.”

It, therefore, follows from the statement quoted above that the issue, which otherwise covers the whole constituency, is constricted to units 8, 18 and 24 of Oniparaga Ward 9. The Tribunal’s consideration of the Oniparaga Ward 9 is at pages 261 – 264 of its judgment which is reproduced at pages 7074 – 7077 of the record of proceedings. I reproduce the relevant portion of the judgment immediately hereunder-

ONIPARAGA WARD 9.

UNIT VOTERS’ REGISTERS’ EXHIBITS

001 876(1)-(81)

002 877(1)-(17)

008

009 883(1) -(28)

010 884(1) -(23)

011

012 885(1) -(20)

013 886(1) – (44)

NUMBER OF REGISTERED VOTERS IN THE REGISTER

1423

273

871

406

291

336

UNUSED VOTERS’ CARDS IN EXHBIT 1098(38)

17

51

79

FORM EC8A EXHIBIT NUMBER FORM EC8A

1253 200

1138(1) 1344

1138(2) 800

1138(3) 400

EXHIBIT NUMBER OF USED BALLOT PAPERS

1084(11)

” (11)

” (4)

” (4)

” (4)

” (4)

1084(4)

” (11)

” (11)

” (11)

NUMBER OF USED BALLOT PAPERS COUNTED

374

1387

” 246

” 299

” 194

” 99

399

801

397

FORM EC8B EXHIBIT NUMBER

907(1)(2)

”

”

”

”

”

”

”

”

”

”

014 887(1) -(22) 440 52 1138(5) 400 1084(11) 399 ” 400

015 888(1)-(10) 148

016 889(10-(13) 207 51 1138(6) 200 1084(4) 198 907(1)-(2) 200

017 890(1)-(29) 500 55 ” (4) 515 ” ” 500

018 891(1)-(18) 298 33 ” (2) 220 ” 346

019 892(1)-(22) 375 19

020 893(1)-(16) 262

021 894(1)-(33) 559 58 1138(7) 546 1084(2) 550 ” 546

022 895(1)-(30) 508 31 ” (8) 506 ” (2) 500 ” 506

023 896(1)-(28) 508 52 ” (9) 500 ” (2) 495 ” 500

024 897(1)-(22) 349 ” (11) 199 ” 202

025 898(1)-(31) 541 49 1138(10) 500 ” (2) 498 ” 500 350

027 900(1)-(29) 502 ” (12) 500 ” (2) 195 500

028 901(1)-(20) 327 ” (13) 191 ” (11) 293 ” 191

029 902(1)-(13) 137 ” (11) 63 ” 63

030 903(1)-(28) 473 63 1138(14 200 ” (4) 200 ” 200

031 904(1)-(14) 229 34 ” (15)Â 135 ” (11) 135 ” 135

The last ward to consider in this Local Government Area is Oniparaga Ward 9. It has 31 units. The total number of unused voters’ cards in Exhibit 1098(38) is a far cry companied with the total number of registered voters as can be gleaned from the voters’ registers from Exhibits 876(1) – (81) to 904(1) – (14) in the above chart. Forms EC8A in Exhibits 1253, 1138(1) – (3) 1138(1) – (3) and 1138(5) – (15) for the units were tendered. Votes cast in them for Units 9, 10, 14, 16, 21, 22, 23, 25, 26, 27, 28, 30 and 31 tallied with the votes cast and recorded in Exhibits 907(1) – (2) (i.e. Form EC8B) for those units. In Exhibit 1084 series for used ballot papers counted, none was counted for each of Units 7, 11, 13, 15, 19 and 20. Forms EC8A were not tendered for the 6 units and no entries were made for them in Form EC8B (Exhibit 907(1) – (2). It follows that election was not conducted in remaining 25 units out of which votes cast and recorded for 13 of the units i.e. Units 9, 10, 14, 16, 21, 22, 23, 25, 26, 27, 28, 30 and 31 in Forms EC8A tallied with the entries in form EC8B for those units. In the circumstance it will not be right to hold or conclude that there was no credible election in the entire ward. However we have observed that though the number of registered voters recorded in Form EC8A and Form EC8B for each of Units 28, 30 and 31 tallied, they are at variance with the actual registered voters in the voters’ registers for the 3 units. That being the case, we hereby nullify the results for the 3 units i.e. Units 28, 30 and 31. What remains for us to do is to compute the result from the 10 remaining units for Labour Party and PDP and the outcome is as follows:

UNITS VOTES BY VOTES BY PDP

LABOR PARTY

9 2 776

10 38 316

14 4 383

16 4 186

21 3 543

22 31 469

23 70400

25 43 414

26 1 308

27 42 341

TOTAL 238 4136

It appears to me from the study of the chart at page 7074 that there had been lapsus calami, an omission in the case of units 8 and 24 where form EC8A were not produced. The result for these two units should have been nullified for want of production of Form EC8A being the reason for the six units expressly nullified in this ward. But there is evidence of production of Form EC8A for 400 votes in respect of unit 8. There was, however, a minor discrepancy between form EC8A on one part and the number of used ballot papers and Form EC8B on the other hand. But the results for units 8, 18 and 24 were not formally cancelled by the Tribunal. Clearly there is an error in the Judgment and I agree with the learned counsel for the Appellant that this court is endowed with the power of the trial Court to give any determination, which the trial Court ought to have arrived at. See Section 15 of the Court of Appeal Act and Order 4 rule 1 of the Court of Appeal Rules 2007. See also Agbabiaka & Ors. v. Okojie (2004) 15 NWLR (Pt.897) 503, 539 and Obim vs. Achuk (2005) 6 NWLR (Pt.922) 594 at 623.

However, it seems to me that no sufficient material has been put at our disposal to enable us invoke our power under the Act. The account of votes cast in the three units is as follows – unit 8, 171; unit 18, 400 and unit 24 the number of votes cast was not stated. Even in the two units where returns were stated in the table drawn by the Tribunal at page 7075, the votes were not apportioned between the political parties that contested the election to the office of the Governor, particularly the scores of each of the Appellant’s and first Respondent’s political parties. We are, for this reason, unable to apportion the votes between the contestants. In the circumstance of this case, the error is insignificant or immaterial in the sense that first respondent herein is credited with 198, 269 votes as against Appellant’s 128, 669 so even if I credit the votes cast in units 8 and 18 to the Appellant, the first Respondent would still hang on to his lead. The error is, therefore, not substantial.

The alternative submission of the learned senior counsel for Appellant is that an appellate Court is under a duty to reverse the decision of a trial Court arrived upon a wrong premise or otherwise perverse. Learned counsel further contended that such interference would be justified where the decision of the trial court is incorrect, unlawful or unjust. He relied on the case of Shell Petroleum Development Co. of Nigeria Plc. vs. Stephen Dino & Ors. (2008) 2 NWLR (Pt.1019) 438 at 265 – 266.

It will amount to greater injustice with greatest respect to the learned senior counsel for the Appellant to deny the Respondent the fruit of his labour merely because of paltry number of votes which are in all less than 1000. In any case, it is not every misdirection or error in a Judgment that will justify reversal of the Judgment unless the error has resulted or caused a miscarriage of justice in the sense that if the misdirection or lapse had not occurred the decision of the court would have been different. See Ibrahim v. Judicial Service Committee (1998) 14 NWLR (Pt.584) 1, 46 – 49, Atoyebi vs. Governor Oyo State (1994) 5 NWLR 62, 84 and Sylvester E Ukaegbu & Ors. vs. Duru O. Ugoji (1999) 6 NWLR (Pt.196) 127, 145. This issue is resolved against the Appellant.

Learned senior counsel for the Appellant contended severally under the Appellant’s issue 10 that the finding of the Tribunal that the burden of proving existence of forms EC8A where forms EC8B, EC8C and EC8D had been produced was fatal to the Appellant’s case was perverse when the Respondent pleaded that he was going to rely on the forms in his petition. Respectfully the submission of the learned senior counsel is unmindful of the issue joined. It was the first Respondent’s case that there was no election held. The Appellant who incidentally was the first Respondent to the Petition responded that the election was conducted. The burden of introducing evidence otherwise known as evidential burden squarely rests on the party who substantially asserts the positive before evidence is adduced. Thereafter the burden of proof rests on the party who will fail if no further evidence is produced. Where this is done, the burden of proof will shift on the other party to introduce evidence, which if accepted will then defeat the claim of the Petitioner.

The principle is enunciated in Section 137 of the Evidence Act Cap. E14 of the Laws of the Federation of Nigeria 2004. It provides as follows:-

(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings.

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”

In Olu Akinfosile v. Ijose (1960) 5 FSC 192; 199 (1960) WNLR 160, the Petitioner in an election petition submitted that once he had shown the non-compliance with the regularities he needed not to show that such non-compliance did not affect the result of the election. It was held that the Petitioner who alleges in his Petition a particular non-compliance and avers in his prayer that the non-compliance was substantial must so satisfy the court otherwise he will fail or loose. See also Onobruchere v. Esegine (1986) 2 SC 385, 396, (1986) 1 NWLR (Pt.19) 799; Ojomo v. Ejeh (1987) 4 NWLR (Pt.64) 216, 229; Bakare vs. ACB Ltd. (1986) 3 NWLR (Pt.36) 42, 57.

The appellant, it seems to me, who asserts substantially that election was conducted has the evidential burden of proving that the election was held. He did not. The first Respondent produced Forms EC8B, EC8C and EC8D, which are respective results of wards, local governments and State levels. There were no forms EC8A, which are the polling station results, tendered in evidence. Hence there were no bases for consideration of Forms EC8B, EC8C and EC8D. To meet the Respondents’ case, it behoved the Appellant to tender the results from the polling stations or booths. It is settled that the polling booths results, as set down in form EC8A, is the primary evidence of the votes cast in an election. It is the foundation or base on which the pyramid of an election process is built. See Awuse v. Odili (2005) 16 NWLR (Pt.952) 416, 488, Sabiya vs. Tukur (1983) 11 SC 109 and Nwobodo vs. Onoh (1984) SCNLR 1, 34; (1984) SC 1. The Appellant or Independent National Electoral Commission in whose custody the voting materials are placed ought to have stepped out to tender form EC8A to show that the election was actually conducted. Failure to tender the results of the polling booths paved the way for the inference the Tribunal drew that if truly there were an election as claimed by the Respondents to the Petition, particularly the third to fourteenth Respondents, the primary evidence that is polling station results ought to have been tendered. The finding of the Tribunal that, in the absence of the primary evidence, form EC8A, the results contained in the various forms EC8B, EC8C and EC8D could not be authentic, and is, therefore, not perverse.

The Petitioner, who averred that election was not held, cannot be required to prove the holding of the election by producing its results. It is the Respondent/Appellant who alleged that there was a free and fair election that is under the obligation to tender the result of the election in the nature of form EC8A in proof of their assertion that election was freely and fairly conducted and results duly collated and declared. Their failure to do so means that they have failed to prove that elections were held and, therefore, impliedly admitted that there was no election.

There is no obligation on the first Respondent to tender form EC8A notwithstanding that he pleaded same in his Petition otherwise he will be proving a case contrary to his pleadings. He has no duty to abandon his case and proceed to assist the Appellant to prove his case. The provision of the Evidence Act set out above is very clear and unequivocal and unambiguous on the question of burden or onus of proof: It is not static. It shifts. It is on the party who will lose or fail if no further evidence is called. It is not regulated by any rule of procedure or practice. The Appellant was not prejudiced nor was there any miscarriage of justice by the first Respondent not producing in evidence the document he averred he was going to rely upon. In an unlikely event of a further appeal, I propose to observe that the Appellant was a Respondent to the petition. At the time the first Respondent in the instant appeal, who was the Petitioner before the Tribunal, closed his case the Appellant had not opened his case not to talk of closing it. He, therefore, was in a position to assess the case and decides whether to tender the relevant forms EC8A. He did not consider it fit to do so or took a gamble. He should abide by the consequences of his own decision voluntarily made, even though it turned out to be fatal to his case. It is no answer that he did not plead the documents since the first Respondent herein had pleaded them in the Petition. It is settled law that a party can rely on averment contained in his opponent’s pleading. In Lawrence Onyekaonwu & Ors. vs. Ekwubiri & Ors. (1966) 1 All NLR 32, 35, there was an issue pleaded by the defendants but not pleaded by the plaintiffs. When plaintiffs’ third witness wanted to lead evidence on it he was stopped by objection from adducing evidence on it. On appeal, the judgment was set aside and retrial ordered. The effect of the failure of the first Respondent herein to have led evidence in support of his pleadings, which is denied by the adverse party’s pleading, is that such averment is deemed abandoned notwithstanding evidence supporting it being produced by the adverse party: Yusuf v Oyetunde (1984) 1 S.C. 205. Issue 10 is also resolved against the Appellant.

It is proposed in dealing with the Appellant’s Issue 11, to reproduce the issue as framed in the Appellants Brief of Argument. It reads –

“Whether the conclusion of the lower tribunal as to what lawful votes scored by the parties was, is valid and justifiable having regard to the failure of the tribunal to determine the number of votes affected by the alleged malpractices and improprieties raised by the petitioner.”

In arguing this issue, learned counsel for the Appellant contended in the Appellant’s Brief of argument that the issue seeks to consider the propriety of the conclusion of the lower Tribunal on its perceived analysis and computation of lawful votes cast. Learned senior counsel then read the finding of the Tribunal on pages 601 – 602 of its judgment copied out at pages 7414 – 7415 of the record. Learned counsel further contended that “one cannot but ask, where did the lower Tribunal do the analysis and Computation of lawful votes in each of Akoko North West, Akoko North East, Akure North, Ile Oluji/Oke-Igbo, Odigbo, Ose, Ese-Odo Ilaje, Irele and Okitipupa Local Governments?” Learned counsel still in the Appellant’s Brief, asserted that there was nowhere on the printed record where analysis and computation of lawful votes cast were conducted. Learned senior counsel then submitted that that being the case the reasoning and conclusion of the lower Tribunal that it analysed and computed the lawful votes cast is most perverse and must be set aside, this is because the conclusion has no support either on the pleadings or evidence led. He cited the case of Oju Local Government vs INEC (2007) 14 NWLR (Pt 1054) 242, 272.

The submission of the learned senior counsel in the Appellant’s brief is dexterous but not candid. The portion of the judgment complained about is reproduced immediately hereunder-

“From the above analyses and computation the lawful votes cast in each of Akoko North East, Akure North, Ile-Oluji/Oke-Igbo, Odigbo, Ose, Ese-Odo Ilaje, Irele and Okitipupa Local Government Areas are as follows:

1. Akoko-North West Local Government Area – 28,982
2. Akoko-North East Local Government Area – 15958
3. Akure North Local Government Area – 11,985
4. Ile-Oluji/Oke-Igbo Local Government Area – 20,327
5. Odigbo Local Government Area – 27,760
6. Ose Local Government Are 25,395
7. Ese-Odo Local Government Area – 3865
8. Ilaje Local Government Area – Nil
9. Irele Local Government Area – Nil
10. Okitipupa Local Government Area – 24737 out of the votes cast as stated above, the two parties Labour Party and PDP scored as follows:-

“We have already said that the parties did not dispute the elections and their resultant scores in respect of Akoko South-East, Akoko South-West, Akure South, Idanre, Ondo East, Ondo West and Owo Local Government Areas. We will now set down the votes recorded in Exhibit 3 (Form EC8D) for each of the 7 Local Government Areas not in dispute along with those for the above-named Local Government Areas as analyzed and computed by us in addition to their percentage scores in the following chart.”

The Judgment of the Tribunal spans 606 pages. It contains summary, review and address of counsel as well as objection, which were taken care of in pages 1 -193. Thereafter, the Tribunal under its issues three titled – “whether the petitioner has proved his case as required by law to entitle him to the relief(s) sought” – took and considered the Petitioners complaint. In this regard the Tribunal introduced the consideration of the issue as follows:-

“We have noticed that the parties are not disputing the election and results in respect of Akoko South-East, Akoko South-West, Owo, Akure South Idanre, Ondo West Local Government Ares. Their disputes centre on certain wards in Akoko North-East, Akoko North West, Ose, Akure North, Ile-Oluji/Oke-Igbo and Odigbo Local Government Areas as well as the whole of Ese-Odo, Ilaje, Irele and Okitipupa Local Government Areas. These are the wards and the Local Government Areas we are going to consider with a view to determining whether or not the petitioner has proved his case as pleaded in his petition and as required by law to entitle him to the reliefs sought.”

The Tribunal respectfully properly directed itself.

The Tribunal then commenced this exercise considering local governments in which only ward results were questioned. The relevant local governments are Akoko North-East, Akoko North-West, Ose, Akure North, Ile-Oluji/Oke-Igbo and Odigbo. It took the offending wards in turn and dealt with them. In Akoko North-East Local Government, the Tribunal examined the evidence relating to ten of the thirteen wards that make up this Local government. The finding of the Tribunal in respect of each ward is illustrated by a chart which shows where available votes cast on Form EC8A as against votes cast on Form EC8B. The Tribunal invariably invalidated votes cast on Form EC8B in the absence of Form EC8A, which is accepted as primary evidence of the votes cast at the election. After invalidation, the Tribunal then stated the votes obtained by the parties. In Ikado 1 ward 03 the Tribunal concluded as follows at page 7018 of the record –

“By our calculation from the Exhibits (Result sheets) the valid votes scored by Labour Party – 4444 and PDP 1329”

See also similar distribution or apportionment of votes in Oorum 1 ward

“By our calculation from the Exhibits (Result sheet) the valid votes scored by Labour Party and PDP in respect of these units are Labour Party 759 and PDP 2498”

In Oyinmo Ward 013, the Labour Party was credited with 19 votes and PDP 2498 at page 7020. This exercise went on throughout the State, unit by unit; ward by ward and local government by local government. It is, therefore, respectfully most uncharitable and preposterous to submit that the Tribunal did not do any analysis or computation. The basis for this decision can be found in the charts and the findings drawn for each disputed unit, ward or local government as well as the findings of the tribunal thereof.

The submission of the learned senior counsel in respect of pleadings or want of pleadings of local government is misconceived. The Petition was against the result of the election which is properly before the Tribunal.Where the Petitioner successfully impugned a unit ward or local government result the same is deducted from the scores of candidates in respect of that particular local government. It is when the totality of these additions and subtractions affect the result of the election as to warrant the victory of the Petitioner that we talk of substantial non-compliance otherwise if it is found that there is substantial compliance, the result is upheld. Where the non compliance affects the result of the election then it is said that the non compliance is substantial – see Yusuf v Obasanjo & Others (2005) 10 NWLR (Part 956) 96, 178 – 18.

The issue of competence or otherwise of the Petition predicated on the failure to satisfy the provisions of paragraph 4(1) the First Schedule does not belong to this issue. Raising it at this stage is belated. The question of competence of the Petition had been trashed out in the Appellant’s issue 1. The appellant has no right to raise the issue which he failed to canvass at the Tribunal for the first time on appeal. I am also not aware that leave had been sought and obtained to raise fresh issue on appeal. In any case, the question of competence of the Petition ought to have been raised before taking any further step in the Petition. See paragraph 49 of the First Schedule to the Electoral Act 2006. This point had been exhaustively dealt with under Issue 1. I have nothing more to add other than say that this issue is also resolved against the Appellant.

The next issue for consideration and determination in this appeal is the Appellant’s issue 12 which reads as follows-

“Whether the tribunal was right in declaring the petitioner/1st Respondent winner of 14th April, 2007 Governorship election in Ondo State?

I am respectfully of the view that there is substance in the submission of the learned senior counsel for the Appellant that there were discrepancies in the results of three wards of Akoko North-East Local Government affirmed by the Tribunal. The three wards in which results were upheld are Ikado I Ward 03 (8 out of the 13 units); Oorun 1 Ward 012 (all the 9 units) and Oyinmo Ward 013 (3 of the 9 units).

The results upheld as indicated at pages 7015, 7019 and 7020 of the printed record are as follows-

WARD PDP LP

Ikudo Ward 03 1,329 444

Oorun 11

Ward 012 2,498 759

Oyinmo Ward

013 2,498 19

The correct addition of the scores of the parties, are as follows:-

PDP 6,325

L.P – 1222

But the tribunal, at page 7021 of the record, summed up the same figures and arrived at the following-

PDP – 5882

L.P. -1224

The sum arrived at by the Tribunal is clearly wrong. This is clear instance of arithmetical error which could easily be adjusted.

But a new dimension was introduced into the matter by the summary of results covering all the 18 local governments of the State at page 7416 of the record. The summary of results included the percentage of votes scored by each party. In the summary, the results in respect of Akoko North-East Local Government are as follows:-

PDP – 3439 21.5%

L.P.- 4461 27.9%

There is no basis for this result from the printed record particularly at pages 7008 – 7021 where in Akoko North – East Local Government was considered. Conveniently these set of results can be knocked off the summary sheets. At this stage, the results entered into the summary sheet for Akoko North – East (PDP – 3439, L P – 4461) at page 7416 will be deleted and substituted with the correct result of the summation of affirmed results for Ikado Ward 03, Oorun II Ward 012 and Oyinmo Ward 013 which is PDP 6325 and L.P. 1222. On the summary of results Labour Party has 198, 269 votes and PDP scored 128, 667.

The subtraction from the score of each party is as follows –

L.P. PDP

198,269 128,667

4461 3439

193,808 125,230

+1,222 6,325

195,030 131,555

The scores of the parties after the corrections or adjustments are

Labour Party – 195,030

P.D.P – 131,555

From the exercise carried out, the contention of the learned senior counsel for the Appellant that it was the use of the figures, PDP 3,439 and L.P. 4,461 is the only result that put Labour Party ahead of PDP is erroneous. It is clear that with or without that result the Labour Party was still ahead of the PDP. It is equally not correct that it solely gave L.P. 25%. Whether or not LP scored 25% of the votes cast in Akoko North-East Local Government Area cannot affect the outcome of the result since the 1st Respondent scored 25% of the votes cast in 12 out of the 18 Local Governments constituting Ondo State in addition to getting the highest number of valid votes cast at the election.

Finally, the Appellant contended that where the Tribunal found that the election was vitiated by serious and substantial irregularities and malpractices none of the candidates at the election can benefit from such an election which is deemed void, hence no one can be returned on the basis of such an election. Learned counsel for the Appellant referred to Section 147(1) of the Electoral Act 2006, Onwundinjo vs. Joseph Dimobi & Ors (2006) 1 NWLR (Pt 961) 318, 335, Buhari v. Yusuf (2003) 14 NWLR (Pt 941) 446, 526 and Ango v Achida (1999) 3 N W L R (Pt.594) 246. Learned senior counsel for the Appellant finally submitted that as the Tribunal had found at page 7418 of the record that the irregularities and the malpractices have seriously affected the outcome of the election, hence the proper order to make is to nullify the election.

I am respectfully unable to accept the submission of the learned senior counsel because the Tribunal never found that the election was vitiated by serious and substantial irregularities. What it found was that the outcome, which is the election of the Appellant, had been affected by serious and substantial irregularities and malpractices. This view is consistent with the conclusion the Tribunal finally arrived at in its Judgment, which is reproduced immediately hereunder.

“On the totality of the evidence before us and based on all what we have said so far, we are satisfied that all the electoral irregularities and malpractices earlier highlighted have seriously and substantially affected the outcome of the election. The Petitioner has therefore proved his case and is entitled to the favourable judgment of the Tribunal. We hold that the 1st Respondent was not duly elected and returned by the highest number of lawful votes cast at the Ondo State Governorship election held on 14th April, 2007. We order that the purported election of the 1st Respondent as the Governor at the Ondo State Governorship election of 14/4/2007 be and is hereby nullified.”

Neither in the statutory provision nor the decided cases referred to us is it provided that an election characterized by serious irregularities and substantial malpractices is deemed void hence no one can be declared or returned on the basis of such an election. Indeed the same Section supports the conclusion the Tribunal arrived thereat. Section 147(1) and (2) of the Electoral Act. No. 2 of 2006 provides thus-

147-(1) Subject to subsection (2) of this section, if the tribunal or the court, as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the court shall nullify the election.

(2) If the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the Constitution and this Act.” (underlining mine).

The decided case read in the Appellant’s brief is that Onwudinjo vs. Dimobi (supra) at page 335 where Galadima JCA, opined that:

“A successful prayer that the election was marred by irregularities can only result in nullification of the election and not return of the petitioner” (underlining mine).

It has raised the ubiquitous question of jurisdiction, this time in the form of lack of prayer. Learned senior counsel for the Appellant has not directed me to any relief on which the determination of this issue can be predicated. It seems to me that the question is answered at page 604-606 of the Judgment of the tribunal. It reads as follows-

“The reliefs sought by the petitioner from the Tribunal are contained in Paragraph 38(i) – (x) of his Petition. In paragraph 14.0 on page 365 of the Petitioners written address, he now seeks the relief in paragraph 38(i) -(v) thereof and they are simply the determination by the Tribunal that the 1st Respondent was not duly elected or returned by majority of lawful votes that the 1st Respondent’s election be voided, that election in four named Local Government Areas be nullified and that he be declared as duly elected and returned as the Governor of Ondo State.”

There is, therefore, no relief seeking that the election be nullified and a fresh one conducted. In the absence of such a relief seeking the voidance of the election of the Governorship election held in Ondo State on 14th April, 2007, this Court is not competent to accede to the request.

Having resolved all the twelve issues against the Appellant, the 207 Grounds of Appeals from which they were formulated fail and are dismissed.

The only appeal outstanding for consideration is that of the second Respondent/Appellant who can really claim to be an aggrieved party. The other Appellants are nominal parties who have no stake as to the outcome of the appeal. It is none of their business to decide the person whom the electorates elect and consequently declared by the Court to be the winner and person returned. The primary functions of these purported Appellants are to ensure that there is fairness and security at the election. Public policy demands that the two institutions do not descend into the arena, and theirs is to tend the rope in the interest of peace and stability in the land, thus, they should learn to remain neutral and strive to attain the aura of neutrality bestowed on them by the Constitution of the Federal Republic of Nigeria. I commend to these Appellants the attitude of the Nigerian Army and the Nigerian Navy, who were equally joined as Respondents, but did not enter the fray to further complicate proceedings that were already complicated.

Nine issues for determination were formulated in Appeal No. CA/B/EPT/342B/08 filed by the Peoples Democratic Party. However, all the nine issues were covered in the issues formulated in Appeal No. CA/B/342A/08 and have been disposed of. The issues canvassed by the other Appellants in their respective appeals have also been considered and disposed of in the same Appeal No. CA/B/EPT/342A/08. In the final analysis, it is clear that all the appeals lack merit. They are accordingly dismissed. The Judgment of the Tribunal delivered on the 25th day of July, 2008 is hereby affirmed. It is therefore ordered as follows –

(1)That the election of the Appellant, Dr Olusegun Agagu, as the Governor of Ondo State at the Governorship election of 14th April, 2007 be and is hereby nullified.

(2) That the first Respondent, Rahman Olusegun Mimiko, having satisfied the requirement of Section 179(2)(a) and (b) of the Federal Republic of Nigeria 1999 and by virtue of Section 147(2) of the Electoral Act No. 2 of 2006 be and is hereby declared as the Governor of Ondo State of Nigeria.

(3) There shall be no order as to costs, each party to bear his or its own costs.

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Other Citations: (2009)LCN/3128(CA)