Hon. Jeffrey Moses Owor V. Hon. Bereware Christopher & Ors (2008)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This appeal is against the judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting at Port Harcourt, Rivers State, delivered on 25/2/2008 dismissing the Petitioner’s (now the Appellant) petition. The election was for the House of Representatives for OPOBO/NKORO and ANDONI FEDERAL CONSTITUENCY of River State.
The Petitioner was the candidate for the DPP and the 1st Respondent was a candidate for the PDP. From the facts gathered in his 20-paragraphed petition, relevant to this case, the petitioner stated that on 23/4/2007 the Returning officer (4th Respondent) wrongly declared that the 1st Respondent had won the election by polling 119,828 votes and the petitioner polled only 5,303 votes. The Petitioner contended at the Tribunal that the 1st respondent was not duly elected by a majority of lawful and/or valid votes cast at the election. He pleaded that the votes credited to the two candidates were not the product of the votes cast at the election into the House of Representatives for the said OPOBO/NKORO and ANDONI Federal constituency at the election of 21/4/2007. The petitioner claimed that the 1st Respondent was not and could not have been validly elected as there were no designated polling units for OPOBO/NKORO Local Government Areas by the 2nd Respondent (INEC). It was contended that no votes were cast at the polling units in the Constituency and therefore no election could have taken place in the said Local Government Areas. The petitioner therefore prayed the Tribunal to declare that the 1st Respondent was not duly elected and that it be determined that the election was void on the ground that it was not conducted substantially in accordance with the provisions, of the Electoral Act 2006 and the 1999 Constitution.
The 1st Respondent filed a reply of 40 paragraphs in which he denied but admitted a number of paragraphs of the petition. The joint reply of the 2nd, 7th Respondents has 16 paragraphs. They admitted and denied also a number of paragraphs of the petition.
Both sets of respondents joined issues with the petitioner on the allegations pleaded by the petitioner.
Pleadings were exchanged, pretrial session held and the matter was set down for hearing. The petitioner called PW1 the lone witness.
The 1st Respondent called three witnesses (DW1, DW2 and DW3). The 2nd – 7th Respondents called 3 witnesses (DW4, DW5 and DW6).
After the final addresses, the Tribunal in its judgment of 25/2/08 dismissed the petition. Hence, the reason for this Notice of Appeal containing 13 grounds of appeal. The issues identified by the Appellant for the determination of this appeal are as follows:
“ISSUE 1
3.1 Whether all allegations of non-compliance with the provisions of Electoral Act are criminal in nature and therefore require proof beyond reasonable doubt.
(Issue 1 is distilled from ground 1 of the Notice of Appeal)
ISSUE 2
3.2 whether the Election Tribunal was right to review and set aside its earlier decision on the admissibility of Exhibit p1 (1-20).
(Issue 2 is distilled from ground II of the Notice of Appeal)
ISSUE 3
3.3 Whether the Election Tribunal was right to have expunged from the records the voters register used for the election by INEC and admitted in evidence as Exhibit P1 (1-20) and to have treated same as if they had never been admitted.
(Issue 3 is distilled from ground III of the Notice of Appeal).
ISSUE 4
3.4 Was the Tribunal right in reviewing its earlier decision on the admissibility of Exhibit P1 (1-20) without inviting the parties to address it on the issue.
(Issue 4 is distilled from ground IV of the Notice of Appeal)
ISSUE 5
3.5 After the Tribunal had admitted Exhibit P1 (1-20) in its Considered ruling on the issue of the, admissibility of a photocopy of a Certified True Copy of a public document between the parties, could the Tribunal in a later decision between the same parties reopen the issue earlier decided and overrule itself?
(Issue 5 is distilled from ground V of the Notice of Appeal)
ISSUE 6
3.6 Having regard to the provisions of Section 50 (2) of the Electoral Act, 2006 and Paragraph 4(3) of the Election Tribunal and Court Practice Directions, 2007 whether, a petitioner who had pleaded that voting did not take place in the constituency and relied on and tenders the voters register to prove same is further required to lead oral evidence to show or explain the purpose(s) or facts for which they are intended to establish.
(Issue 6 is distilled from ground, VI of the Notice of Appeal).
ISSUE 7
3.7 Whether a statement on oath is required by law to contain subordinate fact before it can be of evidential value.
(Issue 7 is distilled from ground VII of the Notice of Appeal)
ISSUE 8
3.8 Whether the Petitioner is required by law to call on voters who were disenfranchised to testify before his petition can succeed.
(Issue 8 is distilled from ground VIII of the Notice of Appeal)
ISSUE 9
3.9 Whether the Tribunal was justified from the printed records to have described PW1 as a phantom witness, a ghost witness whose evidence is not worth the paper it was written on.
(Issue 9 is distilled from ground IX of the Notice of Appeal)
ISSUE 10
3.10 Was the Tribunal right when it held that Petitioners witness in his adopted statement somersaulted to say in paragraph 8 of the statement that uptill the time of the filing of this petition no official result has been announced by INEC and none has been posted on INEC notice board or the internet website?
(Issue 10 is distilled from ground X of the Notice of Appeal)
ISSUE 11
3.11 Whether the decision of the Tribunal is not perverse since the Tribunal failed to evaluate the evidence called by the parties and also failed to place the evidence of the petitioner and the respondents on an imaginary scale of justice before it came to the conclusion that the petitioner had not established his case.
(Issue 11 is distilled from grounds XI and XIII of the Notice of Appeal)
ISSUE 12
3.12 If the Election Tribunal had properly evaluated the Ist pleadings of the parties and the evidence adduced by the petitioner, it would have found that the Petitioner had (Issue 12 is distilled from ground XII of the Notice of Appeal)”
The Respondent formulated 8 (Eight) issues for the determination of this appeal as follows:
“0.14 Whether the allegations of dereliction of duty by INEC officers, falsification of results, fraud etc alleged by the appellant in his petition are criminal in nature and therefore must be proved beyond reasonable doubt as required by law. (Issue I is distilled from Ground 1 of the Notice of Appeal and it is similar to issue 1 as formulated by the Appellant).
0.15 Whether having regard to the circumstances of the admissibility of exhibits P1 (1 – 20), the Hon. Tribunal has the Powers/Jurisdiction to set aside its earlier decision admitting Exhibit P1 (1-20) or was right to have expunged Exhibit P1-P20 from its record. (Issue 2 is distilled from Grounds II, III, IV & V of the Notice of Appeal and it is similar to Issues II, III, IV & V as formulated by the Appellant).
0.16 Whether the Hon. Tribunal was right to have held that the only witness called by the petitioner failed or refused to show or explain to the Tribunal the purpose(s) for which Exhibits P1 (1-20) are intended or the facts they intended establishing by then. (Issue 3 is distilled from Ground V1 of the Notice of Appeal and it is similar to issue V1 as formulated by the Appellant)
0.17 Whether a statement on oath is required by law to contain subordinate fact before it can be of evidential value. (Issue 4 is distilled from ground VII of the Notice of Appeal and it is the same issue 7 as formulated by the Appellant).
0.18 Whether the petitioner is required by law to call on voters who were disenfranchised to testify before his petition can succeed. (Issue 8 is distilled from ground VIII of the Notice of Appeal and it is the same issue 8 as formulated by the Appellant).
0.19 Whether the Tribunal was justified from the printed records to have described PW1 as a phantom witness, a ghost witness whose evidence is not worthy the paper it was written on. (Issue 9 is distilled from ground IX of the Notice of Appeal and it is the same issue 9 as formulated by the Appellant).
0.20 was the Tribunal right when it held that petitioners witness in his adopted statement somersaulted to say in paragraph 8 of the statement that uptill the time of the filing of this petition no official result has been announced by INEC and none has been posted on INEC notice board or the internet website. (Issue 10 is distilled from ground X of the Notice of Appeal and it is the same issue 10 as formulated by the Appellant).
0.21 Whether the election tribunal properly evaluated and assessed the Evidence placed before it and whether in fact the petitioners adduced credible evidence in support of his case. (Issue 8 is distilled from Grounds X, X1 & XII of the Notice of Appeal and it is similar to issues 11 & 12 as formulated by the Appellant).
The 4 issues identified by the 2nd -7th Respondents for determination of appeal are as follows:-
(1) whether the trial Tribunal was competent in law to reject in its judgment exhibits it earlier admitted in the course of the proceedings when it also did not invite the parties to address it on the issue.
(2) Whether a petitioner who has tendered written exhibits to an election petitions tribunal is not under a legal duty to adduce evidence as to the use of the said exhibits or as to its relevance to his case.
(3) Whether from the facts and circumstances of the matter, the trial Tribunal was not right and justified in holding that the Appellant had failed woefully to establish his allegations of non-compliance in the petition.
(4) Whether the trial Tribunal did not dispassionately evaluate the pleadings and evidence of the parties before coming to the conclusion to dismiss the Appellant’s petition.
I shall consider the issues nominated by the respective parties for determination of this appeal anon but not until I am done with the three preliminary objections of the 2nd – 7th Respondents filed on 2/5/2008 to the competence of the Appellant’s grounds of appeal. They are threshold points which by the Rules of this court ought to be given a prior attention before the issues for determination of the appeal are considered. The three preliminary objections are as follows:
“1. That the inclusion of the 5th, 6th and 7th Respondents as parties in this appeal is wrongful, irregular, and improper.
- That grounds 1 and X1 of the Appellant’s grounds of appeal are incompetent and liable to be struck out.
- That the submissions contained in the last sentence in paragraph 4.92 as well as in paragraph 4.93 of the Appellant’s brief are incompetent and should be disregarded in toto by the Honourable Court.”
The above three heads of objection are based on four grounds therein set out in the Notice of Preliminary objection. I have observed that the Preliminary objection is incorporated in the brief of argument of the 2nd – 7th Respondents and argued under paragraph 3 pages 4 -7. In the first head of objection, it is the contention of the Respondents that the inclusion of the 5th, 6th and 7th Respondents as parties in this appeal is wrongful, irregular and improper. That it must be noted that the trial Tribunal at pages 371-372 of the records held that the 5th, 6th and 7th Respondents were not juristic and suable entities in law and were accordingly struck out from the petition together with all the paragraphs of the petition which relate to them. It is also contended that of all the thirteen grounds of appeal contained in the Appellant’s Notice of Appeal, there is no one challenging or seeking to impugn or overturn the decision of the Tribunal striking out the 5th, 6th and 7th Respondents as parties to the petition. It is submitted that this court will not concern itself with an issue not placed before it. That this court cannot pronounce on such an issue or finding which the parties has not appealed against. Reliance was placed on the cases of BHOJSONS PLC v. DANIEL-KALIO (2006) ALL FWLR (PT.31) 2038 @ 2042 – 2043; OSHODI v. EYIFUNMI (2000)13 NWLR (PT.684) 298. It is further contended that the legal effect of failure to specifically appeal against some findings of a trial court is that such findings are in law deemed to be correct. They cited in reliance STANDARD (NIG) ENGR. CO. LTD v. NBC (2006) ALL FWLR (PT. 316) 255 @ 256-257 and AGBAJE v. FASHOLA (2008) 6, NWLR (PT. 1082) 90 @ 109.
The second head of objection of the 2nd -7th Respondents is that grounds I and XI of the Appellant’s grounds of appeal are incompetent and liable to be struck out. It is submitted that a ground of appeal must necessarily arise from or be predicated on the judgment or decision appealed. Learned counsel cited in reliance the cases of LAMBERT V. NIGERIAN NAVY (2006)7 NWLR (Pt. 980) 514 @ 519 and OKOLIE v. MARINHO (2006)15 NWLR (PT.1002) 316 @ 324 and ABIOLA v. OLAWOYE (2006) 13 NWLR (PT.996) 1 @ 7; INTERNATIONAL OFFSHORE CONSTRUCTION LTD v. SHORELINE LIFTBOATS NIGERIA LTD 2003.) 16 NWLR (PT.845) 157. It is submitted that ground I does not arise from the actual decision of the Tribunal as it was not the Tribunal’s decision that allegations of non-compliance with the provisions of the Electoral Act are criminal in nature and therefore must be proved beyond reasonable doubt as required by law. That the Tribunal actually decided that an allegation of crime in a civil proceeding such as an election petition must be proved beyond reasonable doubt by cogent and credible evidence of a witness or witnesses. It is contended that the same fate is also applicable to ground XI of the Appellant’s ground of appeal. That there was no place in the judgment of the Tribunal where the Appellant’s findings were subjected to unnecessary scrutiny.
There is also no place in the judgment where the Tribunal went on a voyage of discovery of finding contradictions in the Appellant’s pleading when such issue arose in the pleadings.
It is also submitted that because grounds I and XI are incompetent, all the issues distilled from them by the Appellant are also incompetent and liable to be struck out. Cited in reliance is the case of SEHINDEMI v. GOV. OF LAGOS STATE (2006) ALL FWLR (PT. 311) 1858 @ 1862.
The third head of the preliminary objection is predicated on the arguments set out in the last sentence of paragraphs 4.92 and 4.93 of the Appellant’s brief of argument. It is submitted that the said arguments are totally incompetent and should be disregarded for the following reasons:
(1) That the arguments are not based or related to neither any of the grounds of appeal filed in this matter nor any of the issues distilled from those grounds by the Appellant. It is submitted that arguments that are alien to the grounds and issues involved in an appeal cannot be countenanced no matter how brilliant or attractive they may be. Reliance was placed on the case of KACHALLA v. BANKI (2006) ALL FWLR (PT.309) 1420 @ 1421.
(2) That more importantly, the said arguments amount to raising a new point on appeal which was neither canvassed before nor pronounced upon by the trial Tribunal. That there is no where in the Appellant’s final address at the Tribunal where he made those arguments. That they therefore qualify as a new point raised for the first time on appeal and where an Appellant raises a new point on appeal it is mandatory on him to first seek and obtain leave before the new point can be heard. They cited in reliance:
BABATOLA v. ALADEJANA (2001) 1 FWLR (Pt.61) 1670 @ 1673 and STANDARD PRINTING & PUBLISHING CO. LTD v. N.A.B. LTD (2003) FWLR (PT. 137) 1097 @ 1099.
It is worthy of note that the Appellants having been duly notified of the preliminary objection filed by the 2nd – 7th Respondents failed or neglected to respond to the three heads of objections. However on the 15/10/2008, when this appeal came up for hearing, learned counsel for the Appellant noted the preliminary objections, but with a wave of hand, if I may say, submitted that the 1st and 2nd heads of objections are not borne out of the record of the Court and therefore he found it unnecessary to respond to the objections. He urged us to allow the appeal and make an order banning or barring the 1st Respondent from recontesting the Federal Constituency election, should the decision of this Court be given in favour of the Appellant. To my mind the learned counsel is saying that the objections have no merit and should be dismissed. There is need, however, for me to look into their merit.
I shall therefore consider the three strands of objections of the 2nd-7th Respondents seriatim.
The first is that the inclusion of the 5th, 6th, and 7th Respondents as parties in this appeal, after the trial tribunal had struck out them on/from the petition. No doubt this is borne out of records. At pages 371-372 of the records the trial Tribunal held thus:
“In view of the above decided authorities of the superior courts, we cannot but agree with the submissions of learned counsel for the 2nd-7th Respondents that the 5th, 6th, and 7th Respondent stand on the petition, they are not juristic and situable entities in law and they should be struck out together with all the paragraphs of the petition which relate to them.
Of all the thirteen grounds of appeal contained in the Appellant’s notice of appeal, there is no one he is challenging or seeking to impugn or overturn the decision of the Tribunal, striking out the 5th, 6th and 7th Respondents as parties to the petition. This court has no business dabbling into an issue not properly placed before it. If a finding or decision of a trial court whether on an issue or fact or law is not challenged in an appeal to this Court, such finding or decision, rightly or wrongly, cannot be disturbed at the hearing of the appeal. This court can only pronounce on such an issue or finding which the parties have appealed against. See BHOJSONS PLC v. DANIEL KALIO (2006) ALL FWLR (PT. 312)2058 @ 2042-2043. A finding or decision of a trial court can only be set aside by an appellate court on a proper appeal challenging the same and not otherwise. See OSHODI v. EYIFUNMI (2000) 13 NWLR (PT. 684) 298. The legal effect of failure to specifically appeal against findings of a trial Court or Tribunal is that such findings are in law, deemed to be correct and subsists. See STANDARD NIGERIA ENGR. CO. LTD. v. N.B.C.I. (2006) ALL FWLR (PT. 316) 255 @ 256-257, and AGBAJE v. FASHOLA (2008)6 NWLR (PT. 1082) 90 @ 109. Since the Appellant in this appeal is not challenging the order of the trial Tribunal striking out the names of the 5th, 6th and 7th Respondents as parties to the petition, it was wrongful, irregular and improper for the Appellant to have still included them as parties to this appeal. It is against the above backdrop that this head of objection is sustained and the 5th, 6th and 7th Respondents were struck out as parties in this appeal together with all the grounds of appeal which relate to them.
The second head of objection is that grounds I and XI of the Appellant’s grounds of appeal are incompetent and liable to be struck out because they do not arise from or are predicated on the judgment appealed against. I agree with the learned counsel for the 2nd – 7th Respondents that ground I does not arise from the actual decision of the Tribunal below. It was not the Tribunal’s decision that “allegations of non-compliance with the provisions of the Electoral Act are criminal in nature and therefore must be proved beyond reasonable doubt as required by law.” As can be gleaned from pages 412 and 418 of the records, the decision is that an allegation in a civil proceeding such as an election petition must be proved beyond reasonable doubt and that because the Appellant’s allegation of electoral malpractices bother on criminality; they must be proved beyond reasonable doubt by cogent and credible evidence of witness or witnesses. It is obvious that this ground of appeal does not arise from or predicated on the decision of the lower court. It is therefore incompetent and is therefore struck out. Ground XI is a complaint that the trial Tribunal “erred in law in the manner in which it subjected the petitioner’s pleadings and evidence to unnecessary scrutiny thereby occasioning a miscarriage of justice.” I do not see anything wrong with this ground of appeal, although it might appear repetitive having regard to ground XII which makes similar complaint of Tribunal’s failure to evaluate, the pleadings of the parties and evidence adduced by the parties.
Objection should have been raised on a different ground. It is therefore not sustained.
In the light of above, it is only ground 1 that I find incompetent.
It is struck out together with all the issues distilled from them by the Appellant because they are also incompetent.
The third head of the preliminary objection is predicated on the argument set out in the last sentence of paragraphs 4.92 and 4.93 of the Appellant’s brief of argument. It is argued that the arguments are totally incompetent and should be disregarded because they are not based on or related to any of the grounds filed neither in this appeal nor on any of the issues distilled from those by the Appellant. It is noted that paragraphs 4.92 and 4.93 contain arguments that are totally alien to grounds 11 and 12. The two grounds complain essentially on the failure of the Tribunal to properly evaluate the evidence called by the parties. But the submissions on paragraphs 4.92 and 4.93 were essentially on the non-production of voters’ register and the burden placed on the respondents to show that there was voting and polling results were used to record such voting. Paragraph 4.93 is specific under it is submitted that the failure to produce polling unit result is fatal to the respondent’s case. These arguments, to my mind, are not based on the issues distilled from grounds 11 and 12. These amounts to raising a new point on appeal which was neither canvassed nor pronounced upon by the trial Tribunal. There is no place in the judgment of the lower Tribunal appeared against where it considered and pronounced on those arguments. These are new points. The Appellants ought to have sought and obtained leave of this Court to argue them. The only exception to this rule is where the new issue bothers on jurisdiction. These arguments are therefore incompetent.
They are disregarded and discountenanced.
I have carefully and dispassionately considered the issues nominated by the parties for the consideration of this appeal. Against the backdrop that ground 1 of Appear is ground of appear has been struck out and 5th, 6th and 7th Respondents have been struck out of the appeal and the arguments in paragraphs 9.3 and 9.4 under grounds 11 and 12 have been disregarded and ignored. It is under this circumstances I hold the firm view that the 4 issues formulated by now the 2nd, 3rd and 4th Respondents are quite apt and relevant to the resolution of this appeal. Their issue I arises from grounds 2, 3, 4 and 5 of the grounds of appeal, while issue 2 relates to ground 6. Issue 3 arises from grounds 1,7,8,9 and 10 and issue 4 relates to grounds 11, 12 and 13 of the grounds of appeal. The four issues of the 2nd – 4th Respondents adopted herein for the determination of this appeal shall be taken seriatim. Their issue I herein is Appellant’s Issues 2, 3, 4, and 5 argued together because they are related. This is issue 2 of 1st Appellant distilled from grounds 2, 3, 4, 5 of the Notice of Appeal.
The Appellant is challenging the competence or powers of the trial Tribunal to subsequently review its earlier ruling admitting Exhibits “P1 – P21” in its judgment. The challenge is based on his three main prongs submissions as follows: that the Tribunal had no jurisdiction to sit on appeal over its own decision or to review and set aside its earlier decision on the admissibility of the said exhibits; that the Tribunal was caught by the doctrine of issue of estoppel and was functus officio and that the Tribunal was under a duty to invite fresh addresses from the parties before rejecting the exhibits already admitted and that by failing to do so, a denial of fair hearing ensued which led to a miscarriage of justice. On these submissions reliance was placed on the cases of NWOSU v. UDEAJA (1990) 1 NWLR (PT.125) 188; IKENI v. EFAMO (2000) 10 NWLR (PT. 720 1 @ 11.
The learned counsel for the 1st Respondent has submitted that the submissions of the learned counsel for the Appellant is misconceived and clearly at variance with settled position of our law. It is submitted that the cases cited by the Appellant in this issue are distinguishable and not applicable to the instant appeal both on grounds of facts, law and mixed law and facts. He strenuously distinguished the cases from the instant case and concluded his submission that even if those decisions were binding on the tribunal, if it does not represent the law on this matter, but the tribunal came to the correct decision, this Court will not reverse the correct decision. He cited in reliance the case of LEBILE v. THE REGISTERED TRUSTEES OF CHERUBIM AND SERAPHIM CHURCH OF ZION OF NIGERIA UGBONLA & ORS (2003) 2 NWLR (PT. 804) 399 @ 422 – 423.
It is further submitted that where evidence or document which is legally inadmissible was wrongly or inadvertently admitted in evidence, the Courts have always mandated that the evidence or document be expunged from the records or discountenanced when writing its judgment. Reliance was placed on the case of NATIONAL INVESTMENT AND PROPERTIES CO. LTD. V. THOMPSON ORGANIZATION LTD (1969) 1 ALL NLR 138 @ 142 – 143 and OLUKADE v. ALADE (1976) ALL NLR page 1; and AGBAJE v. ADIGUN (1993) 1 NWLR (PT.269) 261.
In his reply to the submission of learned counsel for the Appellant in his brief at page 20, particularly paragraph 4.15, with respect to the issue of the Tribunal not inviting the parties to address the Tribunal on the issue of expunging the exhibits P1, 1 – 20, before that step in its judgment, it is submitted by the 1st Respondent that the appellant was given ample opportunity to address the Tribunal on the matter which he failed to utilize after the service of the final written addresses of the two sets of Respondents’ counsel. Reference was made to the passage in the judgment at page 420 paragraph 6 of the record.
On his part, the learned counsel for the 2nd-4th Respondents has submitted that the contentions of the Appellant are misconceived and misleading and totally misplaced. It is submitted that where a trial court or tribunal erroneously admits an exhibit that is patently inadmissible the court or tribunal is under a legal duty to expunge or reject same when giving its final judgment even if it amounts to overruling itself to do so. Thus a court or tribunal cannot be accused of being junctus officio. He cited in reliance the case of SHANU v. AFRIBANK NIG. PLC (2003) FWLR (PT. 136) 823 @ 853 (per UWAIFO, JSC), also NATIONAL INVESTMENT AND PROPERTIES CO. LTD. v. THOMPSON ORGANISATION LTD. (1969) 1 ALL NLR 138 @ 142 – 143; A.G. LEVENTIS (NIG) PLC v. AKPU (2007) 17 NWLR (PT.1063) 416 @ 422 – 423; MANFANG (NIG) LTD v. M/S O.I. LTD (2007) 14 NWLR (PT. 1053) 109 @ 121; BUHARI v. INEC (2008) 4 NWLR (PT. 1078) 546 @ 582; AGBI V. OGBE (2006) 11 NWLR (PT.990) 65; DEGACI OF DERE v. DEGACI OF EBWA (2006) 7 NWLR (PT.979) 382.
It is also submitted that even though the case of NWOSU v. UDEAJA (1990) 1 NWLR (PT.125) 188 relied upon by the Appellant is a Supreme Court decision, the lower Tribunal was perfectly correct in following the decision in SHANU v. AFRIBANK (supra) as it is settled law that where a lower court is faced with conflicting decisions of a higher court on a particular issue, the rule is that the decision that is later in time operates as a bar and represents the correct position of the law: ANSA v. R.T.P.C.N. (2008) ALL FWLR (PT. 405) 1681 @ 1686; MKPEDEM v. UDO (2000) 9 NWLR (PT. 673) 63; and NWANGWU v. UKACHUKWU (2000) 6 NWLR (PT. 662) 674.
It is further submitted that when a trial court or tribunal is exercising its powers to expunge or reject previously inadmissible evidence inadvertently admitted during the proceedings, it does not necessarily need to hear from the parties and its proceedings would not be impeached for breach of fair hearing. See CITIZENS INT’L BANK v. SCOA (NIG) LTD (2006) 18 NWLR (PT. 1011) 332 @ 340; ABIKE v. ADEDOKUN (1986) 3 NWLR (Pt.30) 548 and MANFAG (NIG) LTD v. M/S O.I. LTD (2007) 14 NWLR (PT.1053) 109 @ 121. That the Appellant cannot accuse the lower Tribunal of breach of fair hearing on the issue of rejection of exhibits “P1 – 1 – 21” when it is clear from the record of appeal that even though the 2nd – 4th Respondents raised the issue in their final address which was duly served on the Appellant, his counsel personally chose or elected not to respond or react to it.
It is finally submitted that the principle of estoppel is not applicable in this matter as the law abhors the invocation of the principle in the same case as opposed to a different case. What is more, the decision that must ground the principle of issue of estoppel must necessarily be a final decision and not an interlocutory one as in the instant appeal. See BUHARI v. INEC (2008) 4 NWLR (PT. 1078) 546 @ 640 – 641.
I have carefully read through grounds 2 – 5 of the Appellant’s grounds of appeal. The grouse of the Appellant is not with the legal reasons proffered by the trial Tribunal at pages 420 – 424 of the records for rejecting Exhibits “P1, 1 – 21” in its judgment which it earlier admitted in course of trial. He is challenging the competence of the Tribunal to subsequently review its earlier ruling admitting the said exhibits in its judgment based broadly on three main reasons. Firstly, that the tribunal has no jurisdiction to sit on an appeal over its own decision or to review and set aside its earlier decision on the admissibility of the said exhibits. Secondly, that the Tribunal was caught by the doctrine or issue of estoppel and was functus officio, and thirdly that the tribunal was under a duty to invite fresh addresses from the parties before rejecting the exhibits already admitted and by failing to do so, a denial of fair hearing ensued which led to a gross miscarriage of justice.
Where a trial court or a tribunal erroneously admits an exhibit that is patently inadmissible, it is legally bound to expunge or reject same when giving its final judgment even if this amounts to “overruling” itself to so do. In this case the Court or Tribunal cannot be accused of being functus officio.
At page 424 paragraph 2 of the records, the trial tribunal after reviewing some authorities of the apex court and this court and the submissions of the learned counsel for the two sets of Respondents came to the conclusion and held, inter alia:
“On the Manual for Election officials 2007, we have very carefully look through our records particularly the pleadings of the parties and discovered that there was no where, where the document was ever pleaded by any of the parties to the petition.” See page 420, Para.7 of the record.
“We are bound by the above decisions of the Supreme Court, the apex court of the land and accordingly, we shall discountenance this Exhibit P1 (21), the Manual for Election Officials, 2007.” See page 421 Para. 6 of the record.
“It is in view of the above that we are in agreement with the submission learned counsel to the two sets of respondents that the voters register allegedly used for the election by INEC in this case which was admitted in evidence and marked Exhibits P1 (1) – P (20) were wrongly or inadvertently admitted since they were not the certified true copies of the original voters register. Accordingly the said documents would be expunged from the records and treated as if they had never been admitted.” See page 424 Para. 2 of the record of proceedings.”
The decisions of the trial Tribunal is easily supportable considering the settled position of the law on this matter by the appellate Court. With respect to public document, there are no degrees of secondary evidence and the only acceptable secondary evidence of a public document is a certified true copy. See ARAKA v. EGBUE (2003) 17 NWLR (PT. 848) 1 @ 6, where the apex Court not only upheld and restate this trite principle of law but further explained that one main object of section 97(2)(c) of the Evidence Act which stipulates that only a Certified True Copy of a public document is admissible as secondary evidence thereof is to ensure authenticity of the document vis-‘a-vis the original and the need for the preservation of public documents. In the words of NIKI TOBI, JSC @ pages 20-21 of the report:
“In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the con of section 97 (2)(a) could be tutored and therefore not authentic. Photo tricks could be applied in this process of copying the original document with the result that the copy which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has the eyes of an eagle to direct such tricks.”
It is to be noted that all the authorities herein cited on this point by the parties are Supreme Court cases, and by the doctrine of stare decisis they override the case of IHEONU v. OBIRUKWA (1994) 1 NWLR (PT.322) 594 @ 601, a decision of the Court of Appeal relied upon by the Tribunal wrongly admitting the said exhibits earlier or.
Because exhibits “P1-1-21” are inadmissible and were wrongly admitted during trial the Tribunal is still competent in its judgment to expunge them from its record and totally discountenance them. In SHANU v. AFRIBANK NIG. PLC (2003) FWLR (PT. 136) 823 @ 853 the apex Court, per UWAIFO, JSC held:
“The principle is a strong one. It is that the Court is not permitted in any event to admit and act on legally inadmissible evidence. If such evidence has been admitted, even by overruling an objection to its admission, the Court must reject it in its final judgment even if it amounts to overruling itself to do so. See OKULADE v. ALADE (1976) ALL NLR (PT.1) 67; AYANWALE v. ATANDA (1988) 1 NWLR (PT.68) 22; SADHWANI v. SADHWANI NIG LTD (1989) 2 NWLR (PT. 101) 7; AGBAJE v. ADIGUN (1993) 1 NWLR (PT.209) 261. That was what the court below did in essence in this case as I understand.”
In the case of NATIONAL INVESTMENT AND PROPERTIES CO. LTD. v. THE THOMPSON ORGANISATION LTD. (1969) 1 ALL NLR 135 @ 142 – 143, the Supreme Court held that:
“It is of course the duty of counsel to object to admissible evidence and the duty of the trial court any way, to refuse to admit inadmissible evidence, but if not withstanding this, evidence is through oversight or otherwise admitted, then it is the duty of the Court when it comes to giving judgment to treat the inadmissible evidence as if it has never been admitted.”
The submission of learned counsel for the Appellant at page 20 of his brief particularly paragraph 4.15 is that the trial Tribunal did not invite the parties to address the Tribunal on the issue of expunging exhibit P1-1-21 before taken steps in its judgment and therefore the Appellant was not given fair hearing. It is very glaring from the record of appeal that even though the 2nd – 4th Respondents vehemently raised the said issue in their final address which was duly served on the Appellant, the Appellant in his counsel’s formal address chose or decided not to respond or react to the issue. Thus, the trial Tribunal was compelled to remark at page 420 paragraphs 6 of the record as follows:
“We consider these two issues as very fundamental issues of law. We are therefore surprised that despite the service of the addresses on Learned Counsel to the Petitioner before filing his Petitioner’s final address, he failed and on willingly refused to address any of them. We have gone through our record and the submissions of learned counsel to the two sets of respondents coupled with the authorities cited in support and we are of the view that we cannot gloss over the issues but must consider them appropriately.”
It is settled law that where a party who was amply afforded the opportunity of being heard on a matter or issue voluntarily elects not to avail himself of such opportunity, that party cannot later be heard to complain of breach of fair hearing. See OKIKE v. L.P.D.C. (NO.2) (2005) 7 SC (PT. III) 75 @ 120; NIPSS v. KRAUS THOMPSON ORGANISATION LTD (2001)1 FWLR (PT.45) 702 and ABDUL-RAHEEM v. OLORUNTOBA OJU (2006)15 NWLR (PT. 1003) 581 @ 589.
The Appellant also raised the issue of estoppel in this issue. I agree with the learned counsel for the 2nd – 4th Respondents that the principle of issue of estoppel cannot be invoked in this matter as the law abhors such invocation of the principle in the same case as opposed to a different case. What is more, the decision that must ground the principle of issue of estoppel must necessarily be a final decision and not an interlocutory one as in this case. See BUHARI V. INEC (2008)4 NWLR (PT. 1078) 546 @ 640 – 61. What inextricably detracts from the foregoing arguments and submissions is that the trial Tribunal had the competence and powers under the Evidence law to expunge and/or reject exhibits P1, 1-21 in its judgment which it earlier admitted as exhibits during the trial of the petition, since the said exhibits were patently inadmissible in law. See MANFAG (NIG) LTD v. M/S O.I. LTD (2007) 14 NWLR (PT.1053) 109 @ 122.
In the light of the foregoing, this issue is resolved against the Appellant but in favour of the Respondents.
Now to issue 6 of the Appellant which is issue 3 of 1st Respondent and issue 3 of the 2nd, 3rd and 4th Respondents (since the names of the 5th, 6th and 7th Respondents have been struck out of the appeal).
The thrust of the argument of the learned Counsel for the Appellant in respect of this issue is that the Election Tribunal below overlooked the fact that election petition is sui generis and the fact that by virtue of provisions of section 50(2) of the Electoral Act 2006 and the Election Tribunal and Court Practice Directions 2007, particularly paragraph 4(3) the oral examination of witnesses during their evidence in chief are prohibited except to lead the witnesses to adopt their written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition. The issue was dealt with at pages 24 – 32 of the Appellant’s brief. Learned counsel for the 1st Respondent submitted that the submissions of the Appellant’s counsel is misconceived and clearly at variance with settled position of our law. Similarly the 2nd, 3rd and 4th Respondents in their brief submitted that the Appellant’s petition was totally silent as the use for which the Appellant intends to make of exhibits “P1, 1-21” that the Appellant’s lone witness who testified as PW1 did not adduce any evidence as to use of the said exhibits. The witness did not offer any evidence whatsoever as to the contents of the said exhibits.
Having regard to my resolution of issue 2 in favour of the Respondents, I would have thought this issue is of no moment. Exhibits P1, 1-21 ought not to have been admitted in the first place since they were totally inadmissible in law. They were expunged from the record and ought to be treated as if they had never been admitted. Parties and indeed even the lower Tribunal took cautious steps by still finding it necessary to question the intention of the Appellants tendering them. The Tribunal realized this circumstance when it held:
“Assuming though not conceding that we are wrong in our consideration of Exhibits P1 (1)-(20) and (21) we would want to answer what probative value that can be given to the documents. It is conceded that the documents were tendered and admitted whether rightly or wrongly. The issue to be considered is, what evidence the petitioner advanced in support of the documents to make them relevant to the facts in issue.”
It would appear the trial Tribunal did not take definite position or was uncertain. It wavered. But this court is definite. It has held that the said exhibits were not admissible in the first place. To embark now on considering their probative value, will, to my mind, be a mere academic exercise. I shall not embark on such a futile voyage. I shall rather consider other arguable issues in this appeal.
The issues Nos. 7, 8, 9, and 10 of the Appellant is what the 2nd – 4th Appellants have condensed into a single issue as issue No. 3. These issues arise from grounds 7, 8, 9, and 10 of the grounds of appeal. These are issues 4, 5, 6 of the 2nd-4th Respondents.
The issue is whether from the facts and circumstances of the matter the trial Tribunal was not right and justified in holding that the Appellant had failed woefully to establish his allegations of noncompliance in the petition.
The Appellant has submitted that from the facts and circumstances of the matter and evidence before the trial Tribunal, it held wrongly that the Appellant had failed woefully to establish his allegation of non-compliance in the petition.
The 1st Respondent has submitted that the Appellant has not proved any non-compliance with the Electoral Act 2006 and where he proved non-compliance he failed to prove that it was substantial and that it did or may have affected the election result and that the appellant failed to prove that the 1st Respondent did not win the Election by majority of lawful votes cast at the Election.
The 2nd – 4th Respondents on their part have submitted that all the allegations made by the Appellant in their Petition bothering on criminality required proof beyond reasonable doubt. He placed reliance on the cases of BUHARI v. INEC (2008) 4 NWLR (Pt.1078) 546 @ 582; NWOBODO v. ONOH (1984) SCNLR 1; AGBAJE V. FASHOLA (2008) 6 NWLR (PT.1082) 90 @ 102.
I must point out that the Appellant’s allegations of noncompliance with the provisions of the Electoral Act and the Constitution as set out in paragraphs 4-17 of the petition substantially involve such criminal offences such as falsification of results, forgery, and dereliction of duty by the 2nd Respondent’s staff contrary to sections 125 and 130 of the Electoral Act 2006, and Section 465 of the Criminal Code. The permissible standard of proof for these allegations bothering on criminality is proof beyond reasonable doubt. See BUHARI V. INEC (supra) and AGBAJE v. FASHOLA (supra). This was certainly what informed the finding of the trial tribunal at page 56 of its judgment as follows:
“It is trite law that an allegation of crime in a civil proceedings for example, an election petition, must be proved beyond reasonable doubt. It cannot be deemed proved by default of pleadings or otherwise. It has been held that the petitioner’s allegation of electoral malpractices such as entry of fictitious figures into result sheets, over voting in favour of 1st Respondent, dereliction of duty by INEC officials, falsification of results, forgery and no-voting but results released all bother on criminality and which must be proved beyond reasonable doubt by cogent and credible evidence of witness or witnesses. See: BUHARI v. OBASANJO (2005)2 NWLR (pt. 910) at 416 ANGBAZO v. EBYE (1993) 1 NWLR (Pt. 268) 133 at 145-146 and JALINGO v. NYAME (1992)3 NWLR (Pt. 231) 538 at 545-546.”
It is wrong to accuse the Tribunal of holding that “allegations of non-compliance with the provisions of the Electoral Act are criminal in nature and therefore must be proved beyond reasonable doubt as required by law. This was the allegation contained in ground I of the ground of appeal which I have already struck out based on the grounds stated in the preliminary objection. This ground and the issue distilled therefrom has been struck out. There is no place in the Tribunal’s judgment where it held that every allegations of non-compliance a criminal in nature and must be proved beyond reasonable doubt. The finding of the Tribunal as borne out of the records was that the named allegations which specifically bother on criminality must be proved beyond reasonable doubt.
It is worthy of note that aside from tendering Exhibits P1-1-21 which were eventually rejected and expunged by the lower Tribunal, the Appellant only called a single witness in proof so many serious allegations bothering on criminality alleged in his petition. The evidence of this witness as borne out by his adopted deposition did not contain details of the said allegations. As earlier held where a petitioner’s allegations of malpractices bother on criminality, the petitioner is under a duty to plead and provide specific particulars of such allegations and where he fails to do so, the Tribunal would be justified in discountenancing such allegations: See BUHARI v. OBASANJO (supra) and OMOBORIOWO v. AJASIN (1984)1 SCNLR 108 @ 143. It was for this reason that the Tribunal held that the adopted statement of the Appellant’s lone witness ought to have contained subordinate facts or particulars of the various allegations bothering on criminality.
The provision of paragraph 1 of the Election Tribunal and Court Practice Direction 2007 which provide for the filing of a witness’s depositions has not changed the position of law of evidence which enjoins a party making an allegation bothering on criminality to furnish specific particulars thereof. Aside from this point, the trial Tribunal also held that the adopted evidence of the Appellant’s sole witness was contradictory in several material particulars. It also found that the testimony of the Appellant’s lone witness was hearsay evidence which is inadmissible to prove an allegation bothering on criminality’ some of these findings were not effectively challenged by the Appellant in this appeal. For this, I am with the learned counsel for the Respondents that by reasons of these defects the testimony of the Appellant’s only witness became insufficient and unreliable to sustain his allegation of substantial non-compliance with the provisions of the Electoral Act 2006 and the 1999 Constitution as set out in paragraph 4 – 17 of the petition. The Appellant has a burden to all credible witness to prove his claims, but this he could not do. He could not call any of his polling unit agents when he alleged reported at the various units on the Election day. He also failed to call any of the voters whom he alleged lined up for accreditation on the day of election. This failure was obviously fatal to the Appellant’s case. See BUHARI v. OBASANJO (supra) where the Supreme Court per AKINTAN, JSC held that:
“The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who were on the field where the votes were counted and/or collated. The state party agents were such as Bisi Lawal (PW1) received the figures he gave in his evidence in court in this case from his party’s agents who were not called as witnesses. Such evidence is therefore inadmissible as it is hearsay.”
See also HASHIDU v. GOJE (2003) 15 NWLR (PT. 543) 352 @ 393. It was contended by the Appellant that the tendering of Exhibits “P1-1-21” alone was sufficient to prove his case in this matter. This contention is misconceived and erroneous. It was held in BUHARI v. INEC (2008) 4 NWLR (pt. 1078) 546 @ 561-562 that allegation of failure to deliver result sheets to states and polling units, failure to count votes and absence of announcement of scores at various polling units throughout the country except some few units can only be established by direct evidence of those who observed non-compliance.
It is difficult to prove or establish such averment by looking at the documentary exhibits tendered. See also unreported decision of this court in Appeal No.CA/C/NAEA/2008 delivered on 14/7/2008.
Aside from failing to prove various acts of non-compliance, the Appellant also failed to prove that such non-compliance, if any, affected the result of the election. The lower Tribunal was therefore right when it held that the Appellant failed woefully to establish his allegations of non-compliance and thereby dismissing the petition.
The Appellant in his brief at pages 34 – 36 complained against the Tribunal for describing PW1 as a “phantom” witness, a ghost witness” whose evidence is not worth the paper it was written on; If I may understand the tribunal well, I think it was not satisfied with the witness’s testimony because it was replete with some irreconcilable contradictions and inconsistencies some of which were itemized by the tribunal at pages 415 – 417 and 428 – 430 of the records. Thus the tribunal posed some questions on these contradictions which have to do with the Appellant’s allegations that the INEC officials were absent at the polling units, absence or lack of accreditation, voting, collation of results at wards level, non-thumb printing of ballot papers at the polling units and so on. It is trite that where the evidence of a witness as in this case, is filled with material contradictions, the court or tribunal cannot pick and choose between them but must regard the entire testimony as unreliable. See ONU BOGU v. THE STATE 9 SC 11.
It is also settled law that a witness who makes inconsistent statement in Court should be regarded as an untrue witness as regards those statements. See CONSOLIDATED BREWERIES PLC AND ANOR v. AISOWIEREN (2002) FWLR (PT. 116) 949 and GIRA v. STATE (1996)4 NWLR (pt. 443) 375. The finding of the Tribunal below on PW1 was made in the exercise of its legitimate duty of assessing the-credibility of witness who testified before it and cannot fault it.
Finally, I must observe that Appellant raised this serious allegation as a separate issue arising from ground 10 of the Notice of Appeal and made a heavy weather over the finding of the Tribunal that is that PW1 somersaulted in his adopted statement to say in paragraph 8 of the statement that up till the time of filing the petition, no official result has been announced by the INEC and none has been posted on INEC Notice board or the internet. On this issue the Tribunal was right in its findings that PW1 was inconsistent in his testimony regarding the announcement of result by INEC. This fact is borne out by the admission of the witness under cross-examination at page 332 of the record of appeal. He stated as follows:
“When INEC returned the 1st Respondent as the winner of the election on the election date, I do not know how many votes they credited to him. I don’t know the scores off head but it is there in my depositions …I also don’t know the votes scored by the parties and candidate that contested the election.”
The Appellant cannot rely on paragraph 4 of the deposition of the witness to explain away the obvious inconsistency as the said paragraph did not specify who made the alleged radio announcement of the election result. The Respondents have contended and I agree with their assumption that even if the finding of the lower Tribunal was wrong (which they did not concede), the Appellant has failed to show in what way that finding occasioned a miscarriage of justice.
This is because the Respondents effectively rebutted the Appellant’s case in this regard through their six witnesses who testified as to the announcement of results at both the polling units and collation centres and the issuance of appropriate INEC forms as evidence as provided for by sections 60, 73, 75 and 77 of the Evidence Act. These witnesses also maintained that the election result was duly posted on INEC notice board at Port Harcourt, Rivers State. This was not challenged or shaken by the Appellant under cross-examination.
In the light of the foregoing it is clear that the Tribunal was right and justified in holding that the Appellant did not make out his allegations of non-compliance with the provisions of the Electoral Act 2006 and the 1999 constitution. This issue therefore must be resolved in favour of the Respondents.
Issues 11 and 12 of the Appellant are similar to 1st Appellant’s issue 8 and 2nd – 4th Respondents issue 4. These issues are distilled from grounds 11 and 13 of the grounds of appeal.
Issues 11 and 12 of the Appellants were argued together. It is contended that the Tribunal failed to consider the relevant paragraphs of the petition; failed to evaluate the evidence presented by the parties and the credibility of witnesses before it proceeded to rely heavily on their purported evidence.
On his part the 1st Respondent’s counsel making submissions on this issue has urged us to hold that the Tribunal properly evaluated the evidence of witnesses before arriving at the conclusion that the, Tribunal did “a good job” because it conducted a “holistic” evaluation of the pleadings, evidence and the addresses of counsel in its judgment.
The 2nd-4th Respondents have submitted in their brief that the Tribunal painstakingly considered and evaluated the pleadings and evidence of the parties before coming to the conclusion to dismiss the Appellant’s petition.
Dispassionate evaluation of evidence documentary or otherwise, testimonies of parties and their witnesses require placing all these on the imaginary scale of justice and weighing them appropriately to determine on whose side the scale of justice tilts. See MOGAJI v. ODOFIN (1978) 4 SC 93.
However, an appellate court cannot and should not ordinarily substitute its own view of fact for those of trial. Finding of facts and ascription of probative value to the evidence of witnesses is preeminently the business of the trial court because it saw and heard them. An appellate court will interfere with the findings of trial court only where such findings were wrongly applied to the circumstances of the case or conclusion reached was perverse or wrong. See EBBA v. OGODO (2000) FWLR (PT.27) 2094; BALOGUN v. AGBOOLA (1974)1 ALL NLR (PT.2) 66; NNEJI v. CHUKWU (1988) 3 NWLR (PT.81) 184 and OGBECHIE v. ONOCHIE (1955) 1 NWLR (PT.70) 370.
In the instant case, the Tribunal took pains to evaluate the evidence of respective parties. This is from the records. Some relevant portions of the judgment of the Tribunal showing this are particularly at page 374:
“We are of the view that this petition is bereft of any reliefs as mandated by the law having abandoned paragraph 20 of the petition, also the Appellant failed to establish the requisite prayer. It is trite law that an election petition that does not state the reliefs it seeks from the tribunal is incurably defective and life cannot be blown into it. In support, see: MOGHALU v. NGIGE (2005) 4 NWLR (PT.914)1 @ 33-34. See also: OJONG v. DUKE (2003)14 NWLR (PT.84) 581. Accordingly therefore, we do not hesitate to resolve this second-sub-issue, against the Appellant.
The Tribunal despite the above findings of facts went on to decide the petition generally on its merit so as to do justice.
The Tribunal below made far-reaching evaluation and assessment in respect of the pleadings/petition of the Appellant contained on pages 1 to 94 of the records, the PW1’s statement on oath as contained on pages 11 to 14. The cross-examination of PW1 by the two Respondents’ counsel as contained at pages 330 to 333 of the record and the examination of the probative value of the evidence of PW1 and the findings made by the Tribunal at pages 426 -429.
From the dispassionate consideration and evaluation of the pleadings and testimonies of the parties the Tribunal concluded and held that Exhibit P1-1-21 were inherently inadmissible in law and accordingly rejected and expunged them from its records; it also held that the testimony of PW1 was “hearsay” and self contradictory and therefore totally unreliable and also struck out the parts of the petition which related to the 5th, 6th and 7th Respondents.
I have dealt copiously with the issue of evaluation in the preceding issues. The Appellant has not shown or established any reason to warrant or justify an interference with the findings of faults of the lower Tribunal. For this, I resolve this issue in favour of the Respondents.
In the result, this appeal fails and it is therefore dismissed with costs of N25, 000.00 to each set of the Respondents.
Other Citations: (2008)LCN/2999(CA)
