Fubara Akinbiyi Iyagba V. Hon. George Thompson Sekibo & Ors (2008)

LawGlobal-Hub Lead Judgment Report

TIJANI ABDULLAHI, J.C.A.

This is an appeal against the judgment of the Governorship/Legislative Assembly Election Petition Tribunal sitting at Port Harcourt, Rivers State in the petition No. EPT/NA/14/2007 delivered on the 23rd day of April, 2008. Elections were conducted on 28/04/2007 for the seat of the Senate and House of the Representatives throughout the country.

In Rivers State, the petitioner (herein after referred) to as the Appellant was the candidate of All Nigeria Peoples in the said election and scored 26,579. The 1st Respondent Hon. George Sekibo who was declared the winner with 415,159 votes was the candidate of the Peoples Democratic Party (PDP). Five other persons from different political parties who did not contest the declaration of the 1st Respondent also participated as candidates in the said election.

Dissatisfied with the return of the 1st Respondent by the 2nd to 4th Respondents, the Appellant herein approached the Election Petition Tribunal and filed a petition in which the following reliefs were sought:

(a) That 1st Respondent, Honourable George Thompson Sekibo was not duly elected or 1st returned and that his election was void and invalid by reason of non-compliance with the provisions of the Electoral Act, 2006.

(b) That the return of the 1st Respondent as Senator elect for the Rivers East Senatorial District be set aside.

(c) That the election is nullified and a fresh election/bye election be ordered to be conducted in the entire Rivers East Senatorial District as no valid election can be said to have taken place. [See pages 9 – 10 of the Records).

Pre-hearing sessions were held and information sheets were filed by all the parties. The trial Tribunal came out with the pre-hearing, report in which four issues were formulated for determination. The petition went into full trial. The petitioner in proving his case testified as PW.2 and called one other witness, the PW.1. He tendered Exhibits P1 and P2.

The 1st Respondent on the other hand did not testify personally by himself but called 6 witnesses RW.1 – RW.6. He did not tender any document as Exhibits in defence of his case. 2nd to the 4th Respondents called two witnesses who testified as RW.7 and RW.8. They tendered Certified True Copies of the results of the election after an objection for their admissibility was overruled by the trial Tribunal.

In a well-considered judgment, the trial Tribunal held thus:

“Having resolved all the four issues raised and determined by parties before us in favour of the Respondents and against the petitioner, we are satisfied that the petitioner has failed woefully to prove the numerous allegations he made in he [sic] petition. Consequently therefore, the petition is hereby dismissed”.

As expected, the petitioner then, now Appellant on the 13th of May 2008 filed two grounds of appeal from which he distilled two issues for determination as follows:

1. Whether failure to expunge legally inadmissible evidence and relying on same without any evaluation did not affect the decision of the tribunal that the election of the 1st Respondent was in compliance with the Electoral Act, 2006.
2. Whether election in compliance with the provisions of the electoral Act, 2006 can be valid without any evidence of accreditation of voters to vote, no evidence of voting and no evidence of the results of the election from the contestants before the Tribunal.”

On the 17th November, 2008 when the appeal came before us for hearing in accordance with the rules of this court, learned counsel for the Appellant, Mr. Obiora adopted his two briefs, the Appellant’s brief dated and filed on 4/6/08 and his reply – brief which was deemed filed on 27/10/08. He also filed a list of additional authorities. He placed reliance on the two briefs and the said list of additional authorities. He urged us to allow the appeal, nullify the election of the 1st Respondent and set aside the judgment of the lower Tribunal.

Learned senior counsel for the 1st Respondent, adopted his brief of argument dated and filed on the 11th June, 2008. Whilst adopting his brief learned senior counsel urged us to discountenance the reply brief of the Appellant for not conforming to the rules of the court on what a reply brief should contain. Fresh issues were raised and argued in the said Reply Brief in addition to re-arguing his brief. Again, learned senior counsel urged us to discountenance all the unreported cases cited by the Appellant in his brief because citations were not supplied by the Appellant. Learned senior counsel made the point that contrary to the tradition of honourable and learned profession, allegations were made against the members of the Tribunal and the counsel for the Respondents. Finally learned senior counsel urged us to dismiss the appeal as lacking in merit and affirm the decision of the lower Tribunal.

Learned counsel for the 2nd to 4th Respondents adopted his brief of argument dated and filed on the 16th day of June, 2008. He associated himself with the submissions of the learned counsel for the 1st Respondent on the Reply-Brief filed by the Appellant. He too urged us to discountenance same for not being in conformity with the Rules of this Court.

On the issues for determination, the 1st Respondent adopted the two issues distilled by the Appellant but re-couched to read as follows:

“1. Whether on the facts of this matter, there was a failure to expunge legally inadmissible evidence and relying on same without any evaluation did not affect the decision of the Tribunal that the election of the 1st Respondent was in compliance with the Electoral Act, 2006.

2. Whether on the facts of this matter the election under reference was not conducted in compliance with the provisions of the Electoral Act, 2006 and that there was no evidence of accreditation of voters to vote, no evidence of voting and no evidence of the results of the election from the contestants before the tribunal.”

The counsel for the 2nd to 4th Respondents equally nominated two issues to determination with issue number one being in the alternative. The issues are:

“1. Whether the election conducted by the 2nd Respondent on the 28th day of April, 2007, into the Rivers East Senatorial District, was in compliance with the provisions of the Electoral Act, 2006.

OR

Whether the Appellant proved the allegation of non-compliance with the provision of the Electoral Act, 2006. [This issue is derived from Ground 2 of the Notice and Grounds of Appeal].

2. Whether the Tribal Tribunal was right in admitting documents that were pleaded by all parties in the course of trial [Derived from Ground 1 of the Notice and Grounds of Appeal]”.

It is instructive to pause at the stage and say that a cursory look at the Reply-Brief filed by the Appellant would leave no one in any doubt that the said reply-brief does not conform to the Rules of this court as to what the contents of a Reply-Brief should be. It is now settled beyond doubt that the purpose for which Reply-Brief are meant is now well known and that is to answer or respond to new or fresh points raised in the Respondent’s brief. It is not an avenue through which or by which an Appellant should canvass or proffer further or repeat arguments in support of an appeal on the pre of replying on points of law. See order 17 Rule 5 of the Court of Appeal Rules, 2007 and the cases of POPOOLA v. ADEYEMI (1922) 8 NWLR (257) 1; ADEBIYI v. SORINMADE [2004] ALL FWLR [239] 933 and SHUAIBU v. MAITHODA [1993] 3 NWLR (284) page 748.

Having stated the law and all that pertaining to a Reply-Brief I am of the strong view that the said Reply-Brief is not and cannot be said to have answered or responded to new or fresh points raised in the Respondents’ brief. A careful perusal of the said Reply-Brief would reveal the fact that fresh issues were raised and argued and in addition to that, the learned counsel re-argued his brief. This being the case, I am in complete agreement with learned Senior counsel that the Reply Brief filed by the learned counsel for the Appellant for all intent and purpose cannot be a Reply-Brief and for the reasons given aforesaid, same is discountenanced.

As can be seen from the briefs of the learned counsel for all the parties, two issues were filed by each counsel as calling for determination in this appeal. A cursory look at the said issues would no doubt reveal their similarities. However the issues re-couched by the learned senior counsel are more apt and same will determine the real questions in controversy in this appeal. I adopt them as the issues calling for our determination.

Issue No.1 is whether on the fact of this matter, there was a failure to expunge legally inadmissible evidence and relying on same without any evaluation did not affect the decision of the tribunal that the election of the 1st Respondent was in compliance with the Electoral Act, 2006.

Learned counsel for the Appellant in a brief settled by Benjamin Obiora, submitted that the position of the lower Tribunal in the judgment as to who tendered Exhibits R1 to R127 is totally different from the record of proceedings. He referred to pages 549 – 581 and contended that it was very clear that the Exhibits R1 – R127 were tendered from the bar by the counsel to the 2nd to 4th Respondents amidst objection by the petitioner’s counsel but in its judgment, the lower Tribunal stated that the said Exhibits were tendered through a witness, RW.7. This mis-representation, learned counsel further contended was not just a mere mistake because of the repeated mention of the same at pages 672 – 673 of the records of appeal, but one of the efforts of the lower Tribunal to tilt its views favourably to sooth the Respondents’ case.

Learned counsel submitted that for a document to be admissible in any proceedings where it can be used, three factors determine its admissibility. He listed them as follows:

“1. The document must be relevant to the proceedings for which it is sought to be admitted.

2. The document is pleaded by the party that seeks to tender same.
3. Any condition precedent or requirement of any other law for its admissibility has been met (see Jacob V. A.G. AKWA IBOM STATE [2002] FWLR part 186 page 578 at 593 paragraphs G.”

Learned counsel referred us to the case of Hashidu v. GOJI [2004] ALL FWLR part 228, page 662 at 682 – 683, paragraphs H – D and submitted that it is trite law that where any exhibits which is legally inadmissible is erroneously admitted into evidence, the Tribunal is sized with power to expunge the evidence at the time of judgment when it is doing its work of evaluation of evidence we were urged to do so by the learned counsel.

Its is the submission of the learned counsel that for any document to be used in the proceedings of election petition under the Election Tribunal and Court Practice Direction 2007 that document must be attached with the petition or the reply of the Respondent and filed alongside. He referred us to paragraphs 1 and 2 of the Practice Direction and argued that for a petitioner, he has a choice of accompanying the documents and accompanying the list to the petition. He referred us to paragraph 1 [1] c, Practice Direction 2007.

Learned counsel went on to argue that in the case of a Respondent, he is not given any choice in the matter. The provision that the Respondent must accompany the documents he intends to rely on with his reply is very mandatory as the ward “shall” is used in the provision. He referred us to paragraph 2 of the Practice Direction 2007 to buttress his submission on this point.

Learned counsel referred us to the case NNABAGWU NWOGU V. INEC and ors [unreported] Appeal No. CA/PH/EPT/523/2007 and submitted that it is clear from the decision of this court [supra] that where a petitioner fails to attach the document, he has pleaded in the petition in compliance with paragraph 1(1) (c) of the Practice Direction or make a list of same, it means that the condition precedent to presenting a valid petition has not been met and where it was accepted by the secretary of the Tribunal, it means the petition is incompetent and liable to be struck out.

It is the submission of the learned counsel that for the Respondent, the provision to attach the documentary evidence he would rely on is not only mandatory but does not offer the Respondent the choice or alternative of filing the list of the documents. The Respondent has only one obligation, and that is to attach the documentary evidence with the reply at the time of filing. In stating the nature of obligation on the respondent in the provision of paragraph 2 Practice Direction to comply GALADIMA JCA in the case of NNAGBUGWU NWOGU v. INEC & ORS [supra] delivered on 24/4/08 at Page 22 stated thus:

Generally, when the word “shall” is used in a statute, particularly in election matters, it connotes mandatory and not permissive direction. It is mandatory and the Tribunal has no option but to demand compliance see BAMAIYI v. A-G FEDERATION (SUPRA); O.A.U., ILE-IFE V. R.A. OLIYIDE & SONS LTD [SUPRA], HARUNA ABUBAKAR v. INEC (2004) 1 NWLR [pt.854] 1 at 240; MOHAMMED YUSUF v. OBASANJO [2005] 18 NWLR (pt.954) 96 at 220; CHIEF MOMODU V. A.G. MOMOH (1991) 1 NWLR [pt.169] 608 at 618; TITILAYO AMOBI v. JIMOH SHOTIMEHIN [1993] 3 NWL R [Pt.282] 461 at 473.

Therefore, paragraph 1[2] of the Practice Direction 2007, makes the compliance with paragraph 1 [1] c a condition precedent to filing a competent election Petition.

We were urged by the learned counsel not to ascribe probative or evidential value to Exhibits R1 – R127 because the learned Tribunal had already labeled them “stigmatized results” and they should be expunged from the records of the court. Learned counsel equally urged us to resolve this issue in favour of the Appellant and against the Respondents.

Learned senior counsel for his part, began his submission on this issue by submitting that the law established three indispensable and fundamental criteria governing the admissibility of a document in evidence. These criteria are

The position of the law in relation to the question of admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern the admissibility of a document in evidence, namely,

1. is the document pleaded?
2. it is relevant to the inquiry being tried by the court? And
3. is it admissible in law?”

It is the submission of the learned senior counsel that Exhibits R1 – R127 have met the criteria set out in the case of OKONJI v. NJOKANNA [1999)] 14 NWLR [pt.638] page 250 at 266, D – E and same were rightly admitted in evidence by the learned trial Tribunal.

It is the contention of the learned senior counsel that the Appellant’s counsel never raised any objection to the application of the 2nd to 4th Respondent’s counsel to tender Exhibits R1 – R127 from the bar, when the application was made, he (Appellant’s counsel said thus:

“I just want to make a suggestion that he tendered them through a witness.”

Learned senior counsel submitted that this suggestion cannot take the place of opposition or objection. It is therefore misleading for the Appellant’s counsel to argue that he opposed the tendering of the said Exhibits from the bar. Learned senior counsel opined that if he did, arguments would have been made by both parties and ruling given by the Tribunal accordingly. None of these things existed, learned counsel further Posited.

It is the contention of the learned senior counsel that the conceivable objections raised by the Appellant were:

“1. That by paragraph 2 of the Election Tribunal and Court Practice Directions 2007, the Respondents should have attached the said documents to their reply during filing.

2. That since they were not attached, the Respondents should have brought them in by leave of the Tribunal showing some exceptional circumstance to warrant them to bring in the documents.
3. That since paragraph 1 (1) (c) of the Election Tribunal and Court practice Directions 2007 mandated the petitioner to list and attach copies of documents that he will rely on when filing the petition, the Respondent are bound to do so and
4. That the said documents made by the 2nd – 4th Respondents who are interested parties were made during the pendency of the petition, thereby offending section 91(3) of the Evidence Act Cap. 112 Laws of the Federation 1990”.

It is the contention of the learned senior counsel that the Appellant raised this objection when the 2nd – 4th Respondents opened their case and was about tendering the said documents which is far long a time after filing their reply to the petition. The law does not avail the Appellant to raise the objection at that stage of the proceedings after taking several fresh steps in the course of the proceedings. Learned senior counsel urged us to resolve this issue in lavour of the Respondents.

Learned counsel for the 2nd to 4th Respondents began his consideration of this issue by restating the well known principle of law of evidence that the law places the onus of proof in an election petition on the petitioner. And the standard of proof is generally on the balance of probabilities. But where the allegation made against the Respondent is one of commission of an offence(s), the standard of proof is raised to that of proof beyond reasonable doubt. See the case of IMAM V. SHERRIF (2005) 4 NWLR (pt.914) page 80 at 202 paragraphs F – H, page 169 paragraphs E – F, pages 164 paragraphs A – D. and pages 218 paragraphs G – H.

Learned counsel went on to contend that it is also settle law that the parties must be consistent, forthright and forthcoming in putting forward their case leaving the substance of the claim or evidence vital to establish a case is detrimental to any party who indulges in it. He referred us to the cases of OKOROJI v. THE STATE (1987) 1 NWLR [pt.52] page 659 and BUHARI v. OBASANJO [2005] 13 NWLR (pt.941) page 1 at 280 – 281 per Pat Acholonu JSC (of Blessed Memory).

Learned counsel submitted that from the above cited cases, it is obvious that the Appellant who was the petitioner – before the trial Tribunal has the burden of proving in clear terms by credible evidence all the grounds of his complaints i.e. that the 1st Respondent was not duly elected by majority of lawful votes or valid votes that the votes cast were not correctly added up/or counted at the polling units, wards and local Government Areas as there were no result sheets available to enter such results; that the votes ascribed to each candidate were product of falsification of figures made by the Agents and Officials of 2nd Respondent, that no lawful voting took place and that the election in all the polling units were conducted in defiance of the Electoral Act 2006 and Guidelines provided for the said election.

Learned counsel quoted extensively from the judgment of the Tribunal and the case of AYOGU v. NNAMANI (2006) 8 NWLR (pt.891), 160 at 187 per BULKACHEWA JCA and submitted that from the decided authorities including INEC V. RAY [2005] ALL FWLR [pt.265] page 1047 at 1076 paragraph B – E cited by counsel to the petitioner, that the petitioner had not discharged the onus of proving that there was no election in the East Senatorial District of Rivers State on 28th April, 2007.

On the admissibility of Exhibits R1 – R127, learned counsel contended that there is a clear reluctance on the part of the Appellant to produce these INEC Forms even though he pleaded them. When he obtained the order directing the 2nd – 4th Respondents to make available to him copies of documents, he failed to enforce the order. He rather sat on it hoping that none will be produced. He took a reckless gamble. When the documents were produced, the 2nd – 4th Respondents sought time to enable the Appellant counsel inspects the said documents. He inspected them. He had every opportunity to use the documents while cross examining RW.7 and RW.8. He failed to do so.

It is the submission of the learned counsel that the trial Tribunal was right in admitting these INEC results and/or forms, since no miscarriage of justice has been shown. Learned counsel further submitted that the three grounds upon which the call to expunge the document is based is grossly misconceived. He referred us to the cases of TORTI v. UKPABI (1984) 1 SCNLR, 214 and OGBUNYIYA V. OKUDU (1979)5 – 9 SC 33. We were urged to hold that the issue of expunging the documents lacks merit.

Now, the 1st issue as can be gleaned from the submission of the learned counsel on both sides of the divide and the authorities cited for and against is anchored on the admissibility or otherwise of Exhibit R1 – R127.The law is now recondite on the admissibility of a document. For a document to be tendered in evidence, the guiding principle is relevancy not proper custody. The issue of custody goes to the weight to be attached to the document admitted. See the Cases of TORTI V. CHRIS UKPABI and OGBUNYIYA V. OKUDU [supra].

The questions that must be asked and answered though at the risk of being repetitive are:

1. is the document pleaded?
2. is it relevant to the inquiry being tried by the court? And
3. is it admissible in law?

To answer these questions, needles to say, recourse had to be made to the processes filed by the parties to this action but before I delve into that let me quickly say that the criteria for admissibility of document as enunciated above do not operate disjunctively but conjunctively. In other words, for a document to be admissible in evidence, it must be pleaded, it must be relevant and should be admissible in law.

On the first question, as to whether the documents are pleaded, the 1st Respondent in paragraph 7 [1X] of his reply averred thus:

“Contrary to the averments of the petitioner voters at the election were duly accredited at the polling units before they were issued with ballot papers and thereafter cast their votes. At the end of the voting, the ballot papers were duly counted and the results announced, following which the relevant Form EC8A was issued and signed by the preceding [sic] officer. These results were later collated at the various ward levels and subsequent collations were made at the prescribed levels leading to the issuing of Form EC8B, Form EC8C, and Form EC8D which were used at the election”.

Again, 2nd to 4th Respondents also pleaded the same set of documents in paragraph 31 [a – e] of their joint reply to the petition to wit:

‘The Respondents shall at the trial rely on the following documents inter alia”

31 (e) various Form [sic] ECBC [1] – the collated result of the election at the Local Government Area level.

That aside, even the petitioner pleaded the said result and stated that he will rely on them. Hear him!!

“The petitioner hereby further avers that he will rely on the said documents in question specifically Results sheets and collation of results sheets at polling units, wards, Local Government Areas, Senatorial Collations Centers and Website in proof of his case at the trial of this suit.”

In the light of the foregoings, the 1st question posed a while ago must be answered in the affirmative. The above reproduced paragraphs of the replies of the parties to this action have not left any one in doubt that the said Exhibits [R1 – R127] have passed the 1st criterion as they were pleaded thus the question is answered in the affirmative.

The next question for our consideration is whether the Exhibits [R1 – R127] are relevant to the inquiry being tried. I am of the strong view that they [Exhibits] are not only relevant, but the fulcrum upon which the just determination of the petition rests. There is no doubt that there was an election for the seat of the Senator representing Rivers East Senatorial District. It then logically follows that where there is an election there must be a result of same, and where is the result? They are Exhibits R1 – R127 compiled by 2nd – 4th Respondents as collated by its various officials in all the units, wards, Local Governments and the Senatorial District at large. These Exhibits emanated from the lawful votes cast by the people. I am of the further view that the documents are very relevant for the just determination of this petition, more especially as the petitioner did not produce any other set of results and did not also deny the fact of their relevancy. In fact all the parties pleaded these set of documents. The 2nd question is also answered in the affirmative.

The 3rd question as to whether the documents are admissible in law, this question like the previous two must be answered in the affirmative. They are legally admissible documents. The said Exhibits needless to say are public documents, as such, the 2nd – 4th Respondents painstakingly certified all the documents and what were tendered before the lower tribunal were Certified True Copies of the said Exhibits, I am of the further view that being public documents duly whether by the appellant authority same are admissible without the need of oral evidence to lay foundation. It is unnecessary therefore to call the maker. The documents [Exhibits R1 – R127] are clearly public documents within the meaning of section 109 of the Evidence Act and duly certified as required by section 111 of the Evidence Act.

That apart, the law is settled that once a document has been validly admitted and such documents are not shown to be nullities, the trial Tribunal does not possess the power to expunge the very document it had earlier admitted. See NWOSU V. UDEAJA [1991] 21 NSCC (pt.1) 144 at 158 and can also be found in [1990] 1 NWLR (pt.125) 188 at 210 – 211.

Learned counsel for the Appellant has made heavy weather of not attaching the Exhibits to the replies of the Respondents for which reason he contended that same are inadmissible. With due respect to the learned counsel, none attaching the documents per se cannot make the documents copiously by pleaded by the Respondents and even himself in admissible. The guiding principle as stated elsewhere in this judgment is relevancy. Once a document is relevant is admissible, All other things would certainly be a matter of weight to be attached to the admitted documents. see TORTI V. UKPABI and OGBUNYIYA V. OKODU [supra]

In the light of the foregoings, this issue must be and it is resolved in favour of the Respondents and against the Appellant.

Last but not the least issue for determination is whether on the facts of this matter, the election under reference was not conducted in compliance with the provisions of the Electoral Act 2006 and that there was no evidence of accreditation of voters to vote, no evidence of the results of the election from the contestants before the Tribunal.

“1. Whether on the facts of this matter there was a failure to expunge legally inadmissible evidence and relying on same without any evaluation did not affect the decision of the tribunal that the election of the 1st Respondent was in compliance with the Electoral Act, 2006.

2. Whether on the facts of this matter the election under reference was not conducted in compliance with the provisions of the electoral Act, 2006 and that there was no evidence of accreditation of voters to vote, no evidence of voting and no evidence of the results of the election from the contestants before the Tribunal.”

Learned counsel for the Appellant submitted that there was so much evidence to show that the election of the 1st Respondent on 28/4/07 was in non-compliance with the provisions of the Electoral Act, 2006: And on the other hand, learned counsel submitted that there was a dearth or lack of evidence to show that the election of the 1st Respondent was in compliance with the Electoral Act, 2005.

It is the submission of the learned counsel that an election is a process that involves the following procedures and stages:

1. Accreditation of voters
2. Voting by the voters
3. Counting and recording of votes
4. The announcement of the results publicly.

Learned counsel further submitted that for there to be an election that is in substantial compliance with the provisions of the Electoral Act, 2006, it has to be shown through verifiable evidence that the above listed procedures, which elaborately provided for in the Electoral Act and its subsidiary laws are duly followed to produce the result of such election.

It is the contention of the learned counsel that the legally provided procedures stated above were breached and that the trial Tribunal did not consider the consequence of breaching them before it came to the conclusion that the election was conducted in compliance with provisions of the Electoral Act, 2006.

Learned counsel argued that the Respondents pleaded in their respective replies that there were voters Registers provided for the said election and that the said voters Registers were used to carry out the accreditation of voters before they voted and finally that the voters voted in large numbers. Learned counsel referred us to section 139 of the Evidence Act and submitted that the burden of proof of the existence and availability of the voters Registers had been shifted to the Respondents. Learned counsel asked “if there were no evidence of accreditation and voting, how these forms came about?

He submitted that the issue of accreditation and voting are so inter-related and fundamental because that is the basis in determining whether an election was conducted in compliance with the Electoral Act. He referred us to the case of INEC V. RAY [2005] ALL FWLR [pt.265] page 1047 at 1076 paragraphs B – E. Learned counsel urged us to resolve this issue in their favour.

For his part, learned counsel for the 1st Respondent urged us from the onset to discountenance the Appellants contention that there were no evidence of accreditation of voters to vote, no evidence of voting and no evidence of the result of the election because the Appellant contradicted himself on this issue both in his pleading and his evidence before the Tribunal. The contradictions are stated as follows:

In paragraph 31 of the Appellant’s petition, or page 5 of the records, the Appellant pleaded thus:

“Your petitioner states that the votes as announced by the 4th Respondent for and on behalf of the 2nd Respondent INEC in which the 1st Respondent was credit [sic] with 415, 159 votes and to I, the petitioner, 26,579 votes, were not the correct figures or correctly added number of lawful votes cast at the said election of Saturday, 28th April, 2007 in the Rivers East Senatorial District of Rivers State”.

The Appellant also stated in his evidence in chief, in paragraph 19 of his written witness deposed on oath in page 17 of the Records of proceeding of the Tribunal to wit:

“That the votes as announced by the 4th Respondent for and on behalf of the 2nd Respondent INEC in which the 1st Respondent was credited with 415, 159 votes and to I, the petitioner 26, 579 votes, were not the correct figures or correctly added numbers of lawful votes cist at the said election of Saturday, 28th April 2007 in the Rivers East Senatorial District of Rivers State”.

In paragraph 27 of the said deposition found at page 18 of the records, the Appellants further testified as follows:

“That when the votes are recounted, the figures will clearly show that the result credited to the 1st Respondent is wrong, and that the 1st Respondent did not win the election based on the valid votes cast at the said National Assembly Senatorial Election of Saturday 28th April, 2007 in the Rivers East Senatorial District of Rivers State.”

The Appellant, to strengthen paragraph 19 of his written deposition quoted above, under cross-examination stated thus:

“BY my deposition in paragraph 19, yes, I admitted that there was election and for those ones where there were ballot papers I won. I do not know the figures or lawful votes that I won at the election.”

Based on these contradictions alone learned counsel urged us to resolve this issue against the Appellant and in favour of the Respondents.

Learned counsel for the 2nd to 4th Respondents on the other hand submitted that the Appellant who extensively pleaded the documents as can been seen in his processes made no effort to tender any and apparently was not happy that the 2nd to 4th Respondents who conducted the election and who has custody of the documents tendered the very documents that the Appellant pleaded but failed to tender.

Learned counsel contended that viewed from another angel, one might ask would the judgment of the trial Tribunal which held that the petitioner/Appellant failed to prove his claim have been anything different, if these INEC Forms/Results were not admitted in evidence. He answered the question in the negative because according to him the trial Tribunal earlier on in its judgment while resolving the four issues identified in the petition held that the Petitioner/Appellant failed to prove his case.

Learned counsel urged us to resolve this issue like the previous one in favour of the Respondents.

Let me begin my consideration of this issue by looking at the paragraphs reproduced above containing the contradictions in the Appellant’s case. What runs across the entire paragraphs is the phrase “lawful votes”. The Appellants therefore unequivocally agreed that lawful votes were cast, but his problem according to him was that they were not correctly added up. He claimed that’ if the said valid votes were re-counted, and added up correctly, he would have won the election.

The question that arises is this, can a vote be said to be lawful without the voter passing through the pr-processes of accreditation, casting the said vote and the vote compiled, which is now the result or the product of “lawful votes?

The answer to this question must be in the negative for votes cannot be said to be lawful without being accredited, cast and compiled to form the result of the election according to the Election procedure enshrined in the 1st Schedule to the Electoral Act, 2006. I further hold the view that there were lawful votes as admitted by the Appellant hence the election was conducted in substantial compliance with the Provisions of the Electoral Act, 2006 contrary to the views canvassed by the Appellant.

It is now settled that where the evidence led is virtually worthless, it is futile to presume that the party alleging has discharged the burden of proof or the court ought to act on the evidence adduced because the opposite party has presented a rebuttal. See the cases of AIBRAMAUKA v. OSAKWE [1989] 3 NWLR [pt.107] page 101, OMOREGBE v. LAWRENCE [1980] 3 – 4 SC P. 70 and ODULATA v. HADDAD (1993) 11 SC 357.

Consistent with the decisions of the cases cited supra the evidence led by the Petitioner in respect of his assertions that there was no accreditation of voters, no voting and no results of the election before the trial Tribunal was not the type of evidence that calls for rebuttal from Respondents.

The above notwithstanding, Respondents went extra mile by adducing evidence through their witnesses who testified that there was an election on the day in question and that voters cast their votes and that appropriate Forms were filled and the result was declared.

This issue like the previous one is resolved against the Appellant and in favour of the Respondents.

On the whole in the light of all that has been said, this appeal is completely devoid of any merit. It must be and it is herby dismissed. The return of the 1st Respondent as the dully elected candidate for the senate seat for Rivers East senatorial District is hereby affirmed. N30, 000.00 costs are awarded in favour of the 1st Respondent and against the Appellant.

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Other Citations: (2008)LCN/2994(CA)