Hon. Dr. Sampson Orji V. Hon Chief Mao Ohuabunwa & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMED, JCA,
The appellant and 1st respondent in this appeal were candidates at the National Assembly Election for Arochukwu/Ohafia federal constituency, The election took place on 12th April 2003. The appellant contested the election on the platform of the All Nigeria’s Peoples Party (ANPP). The 1st respondent did so on the ticket of the Peoples Democratic Party (PDP). At the end of the elections, 1st respondent was returned by the 2nd respondent as the duly elected member representing Arochukwu/Ohafia Federal constituency. Aggrieved by 1st respondent’s return, the appellant filed a petition on 12th May 2003 seeking the nullification of the election in ten wards out of the twenty-two that made up the Arochukwu/Ohafia Federal constituency. Appellant also prayed the Tribunal that he be declared validly elected and returned having polled the highest number of lawful votes cast at the election.
Appellant’s petition was heard at the end of which hearing the lower tribunal in its considered judgment of 16th February dismissed the said petition. Being dissatisfied with the decision, appellant has now appealed to this court on eleven grounds.
Parties have filed and exchanged briefs of argument. Same including appellant’s reply brief, have been adopted and relied upon by the parties herein as their arguments for or against the appeal. The seven issues formulated in the appellant’s brief as having arisen for the determination of the appeal reads as follows:-
“2.01 Whether from the state of the evidence adduced the Tribunal was right to hold that the petitioner did not establish the allegations of substantial noncompliance with the principles of the Electoral Act in the ten Wards in issue in the Petition.
2.02. Whether the unauthorized substitution of the INEC trained Presiding Officers with non INEC appointed and trained persons during the elections in the 8 Wards of Arochukwu Local Government Area being part of the constituency did not amount to substantial non-compliance with the principles of the Electoral Act particularly Section 135(1) and (2)
2.03 Whether in the face of the evidence adduced by the Petitioner the unit results produced by the non-INEC appointed persons can be said to be the result if the election in the ten Wards in issue and/or the best evidence of the result of the election being questioned.
2.04 Whether the Tribunal properly and judicially evaluated the evidence of PW3 and whether it was right in holding without supportive evidence that “The evidence of PW3 Ward Returning Officer for Ndi Etiti was a reproduction of what he was told.”
2.05. Whether the Tribunal was right to expunge a material portion of the evidence of PW6 after ruling and admitting same upon a fully argued objection of the Respondents.
2.06 Whether from the evidence adduced by the Petitioner the Tribunal was right in holding that the Petitioner did not establish the allegation of corrupt practices against the respondents.
2.07. Whether the judgment of the Tribunal is not against the weight of evidence.”
At page 10 of the 1st respondent’s brief a lone issue has been formulated for the determination of the appeal. It reads:-
“Whether the tribunal was right when it held that the petitioner did not prove any non-compliance with the Electoral Act, 2002 or any corrupt practice under the Act to warrant the invalidation of this result of election in any of the 10 wards complained of and so dismissed the petition.”
The 2nd – 42nd respondents have also formulated a single issue at page 2 of their brief for the determination of the appeal thus:-
“Whether the tribunal was right when it held that the election in the ten wards of No. 1 Aro II, Aro III, Ututu, Eleoha, Isu, Ikwun, Ohafor, Ndi Elu and Etiti wards as not invalidated by reason of non-compliance with the provision of the electoral Act, 2002.”
The seven issues formulated in the appellant’s brief were jointly argued therein. Learned appellant’s counsel contends that they have proved on the preponderance of evidence that elections in the ten wards in issue were marred by substantial non-compliance. The evidential standard the appellant had to and had indeed discharged submits learned counsel, is as stated in Swen v. Dzungwe & Ors (1966) NMLR 297. PW7, the electoral officer for Arochukwu Local Government at pp 177-192 of the record, PW9, the Supervisor for the Isu Ward at pp 198-201, PW10 Supervisor for Ikun Ward at pp 201-203, PW 11, the Collation/Returning Officer for Isu Ward at pp 206-209, PW13 Supervisor for Arochukwu Ward at pp 219-223, PW15 the Collation/Returning Officer for Ohafor Ward at pp. 232- 237 , PW16, Supervisor for Ututu Ward at pp 239-245, PW17 Presiding Officer for Umuzomgbo III polling unit but who was prevented from working, at pp 249-282 and PW19, the Arochukwu Local Government Area’s Collation Officer at pp 283-318 all testified that official presiding officers were substituted with non-INEC persons or agents of the 1st respondent and the PDP in the eight out of the ten wards constituting the Arochukwu Local Government Area. In these wards electoral materials were shown to have been given to wrong persons who put them to unlawful use. The substitution of the INEC presiding officers with non-official ones amounted to grave illegality in conducting the election.
In further argument, learned appellant counsel contends that they had established their allegations of corrupt practices against the respondents to justify the nullification of 1st respondent’s return by the tribunal. The testimonies of PWs 1-6; PW8 and particularly of PW9 who was the supervisor for Isu ward at pp 198-201; that of PW10 the Ikun wards supervisor at pp 201-203, PW11, the collation/returning officer for Isu at pp 206-209 PW13 the supervisor for Arochukwu ward I at pp 232-237; PW16 supervisor for Ututu ward at pp 239-245, other presiding and collation officers as well as the appellant who was PW20 fully show that 1st respondent’s agents and his party did fraudulently displace presiding officers and took away the electoral materials and applied same to unlawful use.
“Evidence was also led showing that legitimate voters were prevented from voting at the election. The evidence as led remains uncontroverted. Yet, learned appellant counsel submitted, the tribunal had placed little or no weight on the material evidence led by the appellant. This is true even in respect of the two Nkporo wards of Etiti and Ndi Elu where elections did not take place at all. Counsel argued that the principle outlined in Terab v. Lawan (1992) 3 NWLR (Pt 231), 569 to the effect that in proving the falsity of an election result the petitioner must provide the unit results for comparison, does not apply in all cases. The truth is that appellant had satisfied the provision of s.135(1) and (2) and the principles laid down in Bilbis v. Isafe (1999) 4 NWLR (Pt 597) 24 and Basher v. Shene (1992) 4 NWLR (Pt 236) 491 to be entitled to the reliefs he sought from and which he tribunal refused him. Learned counsel invoked the decisions in Ibrahim Saidu Malumfashi v. Alhaji Usman Yaba & Ors (1999) 4 NWLR (Pt.598) 230 and Nwobodo v. Onoh (1984) 1 SCNLR 1 at 33-34 to urge us to re-evaluate the evidence the tribunal wrongly assessed and in consequence find for the appellant.
In arguing 1st respondent’s; lone issue for the determination of the appeal, his counsel contended that the tribunal had correctly and properly evaluated the evidence tendered before it. It is appellant’s burden to prove inter alia that the INEC trained presiding officers had been substituted; that the election had either completely not taken place or was commenced lately in the ten wards complained about; that the tribunal was entitled to proceed on the evidence of PW6 which it expunged, wrongly, all the corrupt practices that marred the election and that the results the appellant tendered were the best evidence of the election held. Had the appellant sustained the foregoing allegations, he would have established a case of substantial noncompliance pursuant to S.135 (1) and (2) of the electoral Act 2002 to justify nullification of all or any of the results in the ten wards complained of. On the contrary, it is argued, appellant did not make out his case as the evidence of PW7, PW9, PW11, PW13, PW15, PW16 and 17 show. At close of trial, learned counsel submitted, the appellant as petitioner had failed to prove that presiding officers had been substituted and that the tribunal’s finding to that effect at page 528 of the record is not supported by led evidence. Annexure ‘A’ that accompanied appellant counsel’s written address was of no help to him. Only evidence that had been led would avail him. Learned respondent’s counsel maintained that Annexure A was not such evidence. Added to counsel’s address, annexure cannot assume the role of evidence.
In further contention, learned 1st respondent’s counsel submitted that the testimonies of particularly PW7 and PW9 at pages 190 and 199 respectively dealt a mortal blow to appellant’s claim that presiding officers were wrongly substituted. The tribunal was right in the absence of any evidence to that effect to have found against the appellant. Learned counsel relied on Atupekpe v. Joe (1999) 6 NWLR (Pt 607) 428; Terab v. Lawan (1992) 3 NWLR (Pt 231) 569 at 594 and Donkpalaga v. Alamieyesigha (1999) 6 NWLR (Pt .607) 502.
Appellant contended 1st respondent’s counsel had also sought to prove that election had commenced lately in the ten wards he complained of. The holding of the tribunal at page 518 of the record, argues learned counsel, is beyond reproach. Appellant had not only failed to prove that elections had lately commenced but such late commencement had substantially affected the results of the election. On the authority of the decisions in Ojukwu v. Obasanjo & Ors (2004) 1 EPR 622 at 653, Opia v. Ibru (1992) 3 NWLR (Pt 231) 658 at 708; Nnachi v. Ibori & Ors (2004) 1 EPR 786 at 801 – 802 and Balani v. Bwala (1993) 1 NWLR (Pt 267). 55 at 65 and Swen v. Dzunigwe & Ors (1966) NMLR 297; learned 1st respondent counsel submitted, appellant having failed to establish what he asserted cannot be indulged by the tribunal.
The issue the appellant raised regarding the testimony of PW6 that had been expunged by the lower tribunal, learned 1st respondent counsel argued, has no substance.
The evidence was expunged for two reasons both of which were justifiable. Firstly, appellant had not pleaded those facts. Secondly, the testimony was, being hearsay, unadmissible. The decisions in Hashidu & Anor v. Goje & Ors (2003) 15 NWLR (Pt 843) 352 at 381 – 382 , Inyang & Ors v. Eshiet & Anor (1990) 5 NWLR (Pt 149) 178, Agbaje v. Adigun (1993) 1 NWLR (Pt 269) 261 and Metalimpex v. A.G. Leventis & Co. Ltd (1976) 2 SC 91, counsel submitted bind the tribunal and remain decisions the court cannot wriggle out of. The relevant principle stated in the cases justified the expulsion of PW6’s hearsay evidence by the lower tribunal.
Learned counsel further emphasized that the appellant was under duly to prove beyond reasonable doubt all the corrupt practices he asserted against the elections in respect of the ten wards in issue. Section 238(1) of the Evidence Act as interpreted inter alia in Oni v. Odeyinka (1998) 8 NWLR (Pt.562) 425 at 430; Edet v. Eyo (1999) 6 NWLR (Pt.605) 18 at 29, Kudu v. Aliyu (1992) 2 NWLR (Pt.231) 615 at 620, provide the standard of proof which appellant did not satisfy. Besides, proving beyond reasonable doubt that the corrupt practices had occurred, appellant must further prove that 1st respondent did either personally commit the corrupt practice or aided or abetted the commission of the alleged corrupt acts. Alternatively, where the alleged act was committed by a person other than the 1st respondent, appellant must show that the person who committed the alleged corrupt act was either 1st respondent’s agent or authorized by the 1st respondent. Most importantly, learned 1st respondent counsel contended, appellant must prove that the corrupt practices complained of had not only affected the outcome of the election but that for the corrupt act appellant would have won the election. Failure to do so, and the appellant had so failed; counsel submitted was, rightly held by the tribunal, fatal. Counsel relied on Oyegun v. Igbinedion (1992) 2 NWLR (Pt.226) 747 at 759 – 760, Adeola v. Owoade (1999) 9 NWLR (Pt.671) 30 and Ifeadi v. Atedzie (1988) 13 NWLR (Pt.581) 205.
Learned 1st respondent counsel also urged this court to accept that the lower court was in no position to pick and choose between the testimonies profered by petitioner’s witnesses where there had been fundamental inconsistencies and contradictions in what the witnesses variously deposed to. It is urged that the testimony of PW6 be matched against that of PW9 on the issue of identity cards for presiding officers. PW6 had testified at p.176 lines 15 – 22 and 35 – 38 while PW9’s evidence is precisely at page 200 lines 27 – 28 further contending the issue is the testimonies of PW10 at page 203 line 9 and that of PW13 at page 220 liners 25-26 of the record. The appellant himself gave evidence as PW20. Learned 1st Respondent’s counsel submits that PW20’s testimony clearly contradicts those of PW7, PW9 and PW19 on virtually all material points. The evidence of PW11 does not also tally with that of PW13 and PW17. These contradictions, learned counsel submitted had affected the credibility of the witnesses and the tribunal was justified when it rejected the testimonies. Notwithstanding these shortcomings, learned 1st respondent’s counsel further argued, the evidence of PW11, PW15 and PW16 specifically denied the allegations that they had participated in electoral malpractices. They further denied being either the agents of the 1st respondent of PDP on which platform the 1st respondent contested the elections.
In conclusion learned 1st respondent counsel contended that appellant’s case at the tribunal had been a confused one. Appellant it was who at one breadth alleged that elections did not take place at all in the ten wards he complained about, Yet appellant it was who tendered results of the election in respect of the wards some of which results were signed by appellant’s agents;. The finding of the tribunal in this regard and on the allegation of forgery and falsification of results like all other findings of the tribunal, contended counsel, are impeccable. Same should be upheld. On the whole, learned counsel urged that since the findings of the tribunal are supported by evidence and had followed thorough evaluation of such evidence by the tribunal the findings should be upheld and the appeal dismissed. Counsel commended the following authorities to us: Izuogo v. Udenwa (1999) 6 NWLR (Pt.608) 502, Haruna v. Modibbo (Pt 608) 684 at 689.
In arguing the lone issue formulated in the brief of the 2nd-42nd respondents, their counsel submitted that the tribunal’s finding at page 518 of the record in respect of late start of elections in the ten wards in issue, the finding at page 521 – 522 of the record on appellant’s allegation that election into these wards did not take place at all, the finding at page 532 – 537 on over-voting and other corrupt practices are beyond reproach and same should be affirmed. Learned counsel also defended the tribunal’s refusal of the testimony of PW6. Learned Counsel reasoned that appellant had failed to prove all the allegations he leveled against the elections in the 10 wards and is accordingly disentitled to the reliefs he sought from the tribunal. Proof remained lacking on the allegation of the non-conduct of elections; corrupt practices and substitution of presiding officers. In sum learned counsel submitted, even where non-compliance with the provision of the electoral Act had been established the appellant did not establish that the non-compliance was substantial enough to justify the nullification of the election. Learned counsel relied in addition to so many of the authorities cited in 1st respondent’s brief, on Agbaje v. Adigun (1993} 1 NWLR (Pt.269) 261; Inyang v. Eshiet (1990) 5 NWLR (Pt.149) 178, Ajadi v. Ajibola (2004) 16 NWLR (Pt 898) 91, Haruna v. Modibbo (2004) 16 NWLR (Pt 900) 487 at 551 Ajudua v. Nwogu (No.2) (2004) 16 NWLR (Pt 898) 91 at 89 and Ezemba v. Ibeneme (2000) 10 NWLR (Pt 674) 61. The last three authorities were cited to support learned counsel’s contention that the tribunal was right in its rejection of appellant’s case that was built on the testimonies of witnesses which were inconsistent and contradictory. Learned counsel urged the appeal be dismissed.
On being served the briefs of the two sets of respondents, the appellant filed a brief that purported to be a reply brief. It is worth the while to restate that a reply brief is filed only when an issue of law or an argument raised in the respondents’ brief calls for a reply. The reply brief is never a facility for the appellant to re-argue his appeal in a re-written brief or to have a second bite as it were. In the instant case where the appellant chose to re-argue his appeal in the reply brief, the brief becomes incompetent and must and is hereby ignored. See Uzuegwu v. Ifekandu (2001) 17 NWLR (Pt.741) 49.
This appeal can conveniently be determined within the con of the sole issue formulated by either set of respondents. The crucial complaint the appellant appears to have cumulatively raised in his seven issues is indeed that the tribunal’s decision, given the state of the pleadings and evidence in proof of the pleadings, is perverse and wrong. Whether or not this complaint is sustainable depends on what appellant’s pleadings at the tribunal were and the quantum and quality of the evidence led to establish his claim.
Paragraph 6 of the appellant’s petition contains the grounds on the basis of which appellant challenged the results of the election into the Arochukwu/Ohafia federal constituency as invalid by reason of non-compliance with the provision of the Electoral Act 2002. In paragraph six of his petition appellant alleged that not only was the election commenced very late it was characterized by massive electoral malpractices resulting in the arrival of most of the results at the collation centres late at night. Ballot boxes were raided and ballot papers and other election materials from polling booths by armed thugs; non conduct of election in three wards of Abiriba where appellant claimed had a lot of supporters; multiple thumb-printing and illegal voting at polling booths and places other than designated polling units; illegal allocation of votes in favour of 1st respondent; use of PDP (1st respondent’s platform) members as presiding officers; illegal stuffing of ballot boxes with already thumb printed ballot papers, over-voting, incidence of intimidation and assault on his agents who were also chased away from polling stations, The combined effect of all these lapses, the appellant alleged, was the emergence of fake and falsified result in favour of the 1st respondent in the ten wards against which appellant directed aforementioned grievances. Two of the wards, Ndi Elu ward and Etiti ward are in Ohafia Local Government Area. The remaining eight, Arochukwu wards 1, 2 and 3, Ututu, Ikwuu, Ohafor ward 1, Eleoha and Isu wards are in the Arochukwu Local Government Area of the constituency. Appellant sought the nullification of the election in these wards. He also asked to be returned as the validly elected candidate in the election having polled the highest number of lawful votes.
Appellant called other nineteen witnesses apart from himself to establish his case. Of the 173 documentary exhibits appellant tendered, two were rejected by the tribunal. The others are exhibits P1 – P44.
In considering whether or not the appellant had made out the paragraphs of his petition relevant to non-voting, the lower tribunal considered the testimonies of particularly PW16, PW17, PW18, and PW7 against the background of he testimonies of the witnesses of the respondents vis-a-vis the exhibits tendered through the witnesses. The gist of these testimonies and the exhibits, tribunal held, was that there had been voting during the election in all the ten wards the appellant claimed voting had not taken place. At pages 521-522 of the record, the tribunal found as follows:
Incidentally, most of the results which were tendered in evidence by the petitioner himself; were tendered through PW7. In his testimony, PW7 stated that some of the results were signed by party agents. We have carefully perused exhibits tendered by the petitioner”… Those results are either carbonized original copies of the booth, ward and Local Government Area results or certified true copies of same. We have noted also that most of the results were signed by the ANPP agents and agents of other political parties.
The petitioner did not say that those signatures were not appended by his agents nor did he lead evidence to discredit or disown the signature of the agents. The petitioner having tendered the said results is bound by the results including the signatures thereto. Furthermore, the results tendered are sufficient evidence that there was election that there was election. See Terab v. Lawan (1992) 3 NWLR (Pt.231) 569 at 594.”
Amongst the respondents’ witnesses are RW3, a member of ANPP, the petitioner’s party. He worked as an agent for the petitioner at the election. RW12 is the ANPP Ward Chairman for Ikun ward and worked as an agent for ANPP at the election. Both of them gave evidence to the effect that there was free and fair election and that they voted at the election. RW6, RW18, and RW21 worked for INEC as presiding officers and ward collation officers testified to having discharged their duties during the election. The petitioner who had the burden of establishing that there was no election in the wards in issue did not call any person who was registered to vote but did vote at the election on the allegation of non-holding of the election.” (Underlining supplied for emphasis).
From the evaluation of the evidence above, the tribunal found as follows:-
“on the whole, we are of the view and do hold that the respondents have led sufficient evidence to show that elections did hold into the 10 wards ”
And there is also the appellant’s specific averments under paragraph 6(v), 6(vi) and 6(vii) of his petition. Thereunder, it was alleged that there was substantial non-compliance with the electoral law firstly because the sixteen presiding officers except four who were recruited, trained, short listed and posted by INEC to the various polling units in Arochukwu ward 1 were substituted by 1st respondent’s agents in dealing with this averment, the lower tribunal considered the testimony of PW7, PW9, PW10, PW16 and PW17 against the background of the testimony of RW6, RW19 and RW21 and concluded, particularly at apge 526 of the record of appeal thus:
“Having carefully considered the testimony of the witnesses we find that the testimonies of the respondent’s witnesses are more in accord with the principles as regards the identification of the presiding officers than that by the petitioner’s witnesses.”
The reasons which gave birth to the foregoing finding of the tribunal are as contained at pages 526 – 528.
The tribunal’s consideration of appellant’s further allegation that the election was marred by corrupt practices vide paragraph 6 (xviii) and 6 (xix) of the petition is at pages 528-538 where inter alia the tribunal held in respect of each and every act of corrupt practices averred against the election and return of 1st respondent thus:
“In conclusion and as earlier said in this judgment, corrupt practice being criminal in nature, its standard of proof is beyond reasonable doubt. See S.138(1) of the Evidence Act and Nnachi v. Ibori (supra). In proving it, the petitioner must establish that the corrupt practice or illegality was expressly authorized by the 1st respondent. Furthermore the said acts of corrupt practices must have substantially affected the result of the election. See Badawi v. Adamu (1999) 3 NWLR (Pt.594) p. 303 at 308.
The evidence so far adduced in support of this ground falls short of the standard prescribed by law. Consequently, we hold that the alleged acts of corrupt practices have not been proved. (Underlining supplied for emphasis).
Consequent upon the tribunal’s findings lavishly reproduced above, appellant’s petition was dismissed.
Now, it is beyond argument that with the exception of his 5th issue all the issues formulated by the appellant, prolix as they are dwell on the evaluation of the evidence led in proof of the petition. Our attitude at this appellate level has always been that if conceding to the trial court or tribunal the primary duty of evaluation of evidence and making findings of fact, where same hinge as in the instant case, on the credibility of witnesses. The lower tribunal which decision forms the basis of the instant appeal, and not this court, had seen the witnesses in the course of their testimony. This court, unlike the tribunal that had the opportunity of observing the demeanour, and determining the credibility of the witnesses, reads the evidence of these witnesses only from the printed record. The court having not had the opportunity of observing the mannerism, habits and idiosyncrasies of the witnesses lacks the necessary powers of making findings based on the credibility of the witnesses. See Ogu v. Ekweremadu (2006) 1 NWLR (Pt 961) 255; at 284-285, Ebba v. Ogodo (1984) 1 SCNLR 372, Sanni v. Ademiluyi (2003) 9 NWLR (Pt 807) 381; Kudu v. Aliyu (1992) 3 NWLR (Pt 231) 615 and Ayua v. Adasu (1992) 3 NWLR (Pt 231) 598.
Let it be out rightly pointed that 1st respondent return a presumption of regularity and correctness of the election as declared. To succeed it was incumbent on the appellant herein to rebut the presumption. See Remi v. Sunday (1999) 8 NWLR (Pt 613) 92 and Ogu v. Ekweremadu (supra). In determining whether or not appellant had rebutted the presumption in favour of 1st respondent’s return, the lower tribunal’s duty involved looking at the entire circumstances of appellant’s case from the state of pleadings, and the evidence led.
One entirely agrees with the learned appellant counsel that where a trial court’s finding of fact is shown to be perverse in the sense that it was either not supported by the evidence adduced or that the finding was as a result of wrong application of any principle of substantive or procedural law same would be tempered with on appeal. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt 67) 718 Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 rand Afegbai v. A.G Edo State (2001) 14 NWLR (Pt Ti3) 425. Once the decision appeared against is however shown to be consistent with the evidence led by witnesses the Court of Appeal cannot disturb the finding of fact or entire decision. See Na Bature v. Mahun (1992) 9 NWLR (Pt 263) 85, and Ogar v. James (2001) 10 NWLR (P 7221 621.
Now, appellant had prayed the lower court to invalidate the election of the 1st respondent on the basis of the pleaded facts contained in his petition. Having asserted the numerous act of the 1st respondent and/or INEC officials which constituted non-compliance with the electoral law, it became his burden by the combined operation of S.136 and S.138(2) of the evidence Act, as well as S.135 (1) of the Electoral law to prove-
(a) Where the conduct complained against did not border on or constitute a crime, on preponderance of evidence the alleged act. (b) Where the behaviour or act constituted a crime, on evidence beyond reasonable doubt the alleged criminal act and that the person whose return was being challenged had either authorized the alleged act or that the perpetrators of the act were the returnees’ agents.
(c) Notwithstanding the nature of the act complained about, be it of criminal nature or otherwise it must be shown to have amounted to such non-compliance that had substantially affected not only the conduct of the election but had also substantially affected the results of such election.
The evidence proffered in proof of the petitioner’s allegation must invariably be credible and admissible. In the instant case, the lower tribunal had demonstrated such a profound grasp of the burden appellant had to discharge in proof of all the allegations he leveled against the return of the 1st respondent. The tribunal was aware of and did employ the imaginary scale to weigh the evidence of the appellant and 1st respondent and concluded that since the scale had tilted in favour of the 1st respondent, appellant was not entitled to the reliefs he sought. I have reproduced part of the tribunal’s evaluation and weighing effort which exercise led to its finding that appellant was not entitled to have the election and return of invalidated 1st respondent having failed to adduce evidence in proof of all his allegations. Apart from the allegation that the election had not been conducted at all in the ten wards in issue, virtually all the other allegations: over-voting, substitution of presiding officers, unlawful removal of electoral materials, falsification of results, incidence of violence etc, are acts criminal in nature and to succeed appellant must prove their occurrence beyond reasonable doubt. The tribunal was fully aware of this burden and on whom it was placed when at pages 532 – 537 of the record it held as follows:-
“As earlier stated, the standard of proof is that of proof beyond reasonable doubt as enshrined in Section 138(1) of the Evidence Act Cap 112 LFN 1990. Armed with this profound knowledge, the tribunal proceeded thus: A cursory glance at the petition and the evidence adduced along with replies filed will reveal the following:-
(i) The complaint relating to Ikwun Ward is as contained in paragraph 6 (xix) which is to the effect that Senan Obu (ANPP Ward Chairman) was Pushed out of a vehicle driven by Ama Abraham in company of thugs that carried away electoral materials from the Ward. Mr. Egwu Nnaoke was said to have witnessed the incident. Mr. Nnaoke testified as PW10 on 21/10/04 and stated under cross examination that he did not witness any incident in his Ward (Ikwun) involving Senan Obu and anybody.
Beside the denial of the allegation by Ama Abraham who testified as RW11, the victim himself KALU SENAN OBU testified on 16/12/04 as RW12 and stated categorically “that it is not true to say that Ama Abraham pushed me out of a moving vehicle on the day of the election.
(ii) As to the complaint in Ohafor Ward I, Elder Ugoji Edu Ukpabi who testified as PW15 on 1/11/04, stated under cross examination by counsel to the 1st respondent that the allegation that the confiscated ballot boxes mid-way into the election is not true. He testified as the Collation Officer for Ohafor I Abam.
(iii) By paragraph 6 (xv) it was alleged that in Ndi Etiti Nkporo Ward agent of the Petitioner was beaten, the evidence led through PW6 however revealed that it was a lady presiding officer that was beaten. The evidence of PW3 Ward Returning Officer for Ndi Etiti was a reproduction of what he was told.
(iv) PW7, the Electoral Officer for Arochukwu LGA and who tendered most of the results exhibit P17-29 in evidence said he is not aware of any INEC official who compromised his duty on the election.
(v) PW19, the Returning Officer for Arochukwu, LGA, stated that results credited to candidates were products of normal electoral process’ She also tendered exhibit P. 33.
(vi) PW9, Julius Eke denied ever thumb-printing ballot papers as alleged by the petitioner in paragraph 6(viii).”
The appellant’s insistence that the court had acted wrongly in refusing to act on the testimony of PW3 must certainly be discountenanced. In disregarding evidence of unpleaded facts and hearsay evidence which PW3’s testimony was, the tribunal had proceeded on correct principles of the adjectival laws applicable to it. See Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 and Omodikun Owoniyi v. Omotoshi (1961) ALL NLR 390. In the instant case where the tribunal had unquestionably evaluated the evidence led and ascribed probative value to same we cannot substitute our view with that of the tribunal. See Nwokoro v. Nwosu (1994) 4 NWLR (Pt.337) 172. As meticulously and rightly found in respect of all the complaints made by the appellant, it is either that on the whole the evidence led by respondents had by far outweighed that of the appellant or that the evidence of the appellant had been bedeviled by such contradictions and inconsistencies that it had become manifestly unreliable to be acted upon. Were it even to be accepted that there had been over-voting, falsification of results, intimidation of voters, and such other corrupt practices the appellant alleged, the lower tribunal remains on a firm terrain in refusing to annul 1st respondent’s return because of appellant’s failure to link the former with these criminal acts. 1st respondent cannot be held responsible for acts done by persons who were neither his agent nor had his consent, encouragement of authority. See Ayua v. Adasu (1992) 3 NWLR (Pt 231) 598 and Ekpe v. Morah (1999) 3 NWLR (Pt 617) 146. lf all those criminal acts the appellant averred in his pleadings must have the desired consequence, the appellant must establish either that 1st respondent, had himself actually committed the alleged corrupt or criminal act or that the act alleged was committed by 1st respondent’s agent. In the two instances, and as rightly stated in the tribunal’s judgment, the corrupt or criminal act must be shown to have substantially affected the outcome of the election. Having failed in this regard, the tribunal is right to have adjudged the petition unmeritorious, See Falae v. Obasanio (1999) 4 NWLR (Pt 599) 426, Jalingo v. Nyame (1992) 3 NWLR (Pt 231) 538, Wali v. Bafarawa (2004) 16 NWLR (Pt 898) 1 and Elebe v. Ezenduka (1998) 7 NWLR (Pt 556) 74.
In sum, 1st respondent’s lone issue this court preferred in the determination of the appeal, which issue fully accommodated all the seven issues formulated by the appellant, is resolved against the appellant. The appeal lacks merit and is accordingly dismissed.
The cost of this appeal put at N10,000.00 is hereby ordered against the appellant and in favour of the respondents.
Other Citations: (2006)LCN/1970(CA)
