Hon. Nasiru Muhammed & Anor. V. Hon. Philip Tanimu Aduda & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

This is an appeal against the judgment of the National Assembly Election Petition Tribunal holden at the Federal Capital Territory, Abuja delivered on 11th day of September 2008 dismissing the Petitioners/Appellants Petition dated and filed on 6/5/08.

The Petitioners’ claims as contained at page 32 of the Record are as follows:-

(a) A declaration that the 1st Respondent sponsored by the 2nd Respondent was not duly elected by a majority of lawful votes cast in the bye-election held on the 5th & 6th April, 2008 for the House of Representative for AMAC/Bwari Federal Constituency of the Federal Capital Territory (FCT) Abuja.

(b) An order declaring the 1st Petitioner Hon. Nasiru Muhammed as duly elected in the bye-election held on the 5th & 6th April, 2008 for the House of Representatives in AMAC/Bwari Federal Constituency of the Federal Capital Territory (FCT) Abuja having polled the highest number of lawful votes cast at the bye-election.

In the Alternative:-

(a) An order nullifying the bye-election held on the 5th & 6th April, 2008 into the House of Representatives for the AMAC/BWARI FEDERAL CONSTITUENCY in which the 1st Respondent Hon. Philip T. Adudo was returned the winner by the 4th Respondent on the ground that there were substantial irregularities and corrupt practices and substantial non-compliance with the provisions of Sections 27, 31 (3), 47, 48, 54, 60, 74, 75, 145(b) & (c) and other provisions of the Electoral Act 2006 particularly and order a fresh election.

Two sets of the three sets of Respondents joined issues with the Petitioners on most of the facts pleaded in support of the relief claimed. The 2nd Respondent abandoned its defence by not calling any witness to testify on its reply which was deemed abandoned.

STATEMENT OF FACTS:-

The election was for the House of Representatives for AMAC/Bwari Federal Constituency, FCT, Abuja for which the Appellants challenged the declaration of the 1st Respondent as the duly elected member of the House of Representatives representing AMAC/Bwari Federal Constituency at the Bye-election held on the 5th & 6th of April, 2008 at the Federal Capital Territory, Abuja.

The election of the 1st Respondent was challenged on the following grounds in the petition:-

(a) That the Bye-election was invalid by reason of substantial non-compliance with the provisions of the Electoral Act; 2006 particularly Sections 27, 31(3), 47, 48, 54, 60, 74, 75, 145(b) and (c) and other provisions of the Act which substantially affected the result of the Bye-election held on the 5th and 6th of April, 2008 to the House of Representatives in AMAC/Bwari Federal Constituency of FCT, Abuja.

(b) That the Bye-election held on the 5th and 6th of April, 2008 to the House of Representatives for AMAC/Bwari Federal Constituency of the FCT, Abuja is invalid by reason of electoral irregularities and corrupt practices which substantially affected the result of the Bye-election.

(c) That the 1st respondent sponsored by the 2nd respondent was not duly elected by majority of lawful votes cast at the Bye-election on 5th and 6th April, 2008 to the House of Representatives in AMAC/Bwari Federal constituency of the FCT, Abuja. At the trial the Petitioners called five (5) witnesses and there were tendered numerous exhibits.

On the 20/10/09, the day of hearing Mr. Oloriegbe adopted the Appellant’s Brief which was filed on the 11/11/08 and the Reply Briefs of 22/12/08 and 20/5/09. In the appellant’s Brief were couched seven (7) issues for determination and they are as follows:-

1. Whether the burden of proving who had the majority of lawful votes cast in an election petition or an allegation of multiple thumb prints are criminal in nature and therefore require proof beyond reasonable doubt.
2. Whether the Election Tribunal was right from the printed records to have held that the doctrine of severance does not apply in the instant case when crime was not directly in issue.
3. Whether the Election Tribunal was right to have rejected the evidence of PW1 and PW2 having earlier made a finding of facts that they are expert witnesses on finger prints matter and having regard to the facts that there is no contrary expert opinion challenging their evidence before the Tribunal.
4. Whether the Election Tribunal was right to have held that the PW1 and PW2 did not demonstrate before the open court on how they arrived at their conclusion in “Exhibit 1C” having regard to the provisions of paragraph 4(3) of the Election Tribunal and Court Practices 2007 and the circumstances surrounding this matter.
5. Whether the Election Tribunal was justified from the printed records to have held that there was contradiction in the evidence of the PW1 and PW2 as to the figure of 21,505 ballot papers worked on by PW1 and PW2 as against the pleaded figure of 19,734 having regard to the totality of the evidence led before the Tribunal
6. Whether it was necessary for PW1 and PW2 to have examined and worked on the ballot papers thumb printed for the Petitioners/Appellants when same were not in issue and there was no dispute as to whether the ballot papers thumb printed for the Petitioners/Appellants were multiple thumb prints.
7. Whether the decision of the Tribunal is not perverse since the Tribunal failed to properly evaluate the evidence called by the parties and also failed to place the evidence of the Petitioners/Appellants and the Respondents on an imaginary scale of justice before it came to conclusion that the Petitioners/Appellants had not established their case.

Chief Karina Tunyan SAN for the 1st Respondent adopted their Brief filed on their 18/11/08 and did not frame any issues, but rather utilized the issues formulated by the Appellants.

For the 2nd Respondent Chief Olusola Oke adopted his Brief filed on 19/2/09 and deemed filed on 19/5/09. In that Brief were distilled therefrom four (4) issues for determination and they are viz:-

1. Whether the trial Court was not justified in holding that the allegations of multiple thumb print are criminal in nature and therefore require proof beyond reasonable doubt.
2. Whether the Trial Tribunal was in error when it held that the doctrine of severance does not apply in this case when it held that the allegation of multiple thumbprint, which constitutes crime is so tied and central to the allegation of multiple thumb printing of ballot papers.
3. Was the election Tribunal under obligation to accept the opinion of an expert who in its opinion has failed to induce belief of the Tribunal by demonstrating his skill and basing his conclusion on scientific criteria for testing its accuracy.
4. Whether having regard to the facts of this case and the totality of the evidence adduced, the Trial Tribunal did not come to a just conclusion by dismissing the case of the appellants and upholding the election of the 1st Respondent. Mrs. Taju, learned counsel for the 3rd – 352nd Respondents adopted their Brief filed on the 19/11/08. She also adopted the issues as couched by the appellants.

For convenience I shall make use of the issues as framed by the 2nd Respondent.

ISSUES ONE AND TWO:

Whether the Trial Tribunal was not justified in holding that the allegation of multiple thumb prints are criminal in nature and therefore require proof beyond reasonable doubt.

Whether the trial Tribunal was in error when it held that the doctrine of severance does not apply in this case when it held that the allegation of multiple thumbprint, which constitutes crime is so tied and central to the allegation of multiple thumb printing of ballot papers.

Learned Counsel for the appellants contended that the trial Tribunal got its findings wrong having regard to the state of the pleadings and the evidence led by the parties. That from the totality of the evidence led at the trial of this petition, the Petitioners/Appellants had abandoned all provisions and to have violated the Electoral Act, 2006 as contained in paragraph 10 ground 1 at page 15 of the record except section 54 of the Electoral Act, 2006 and the entire ground 2 and the only ground which the Appellants succeeded in establishing in this petition is ground 3 of the petition. That the law permits what the Petitioners/Appellants had done under the doctrine of severance. He cited Laws Governing Election and Petitions by Bon Nwakanma SAN and Ngozi Olehi Esq. 1st Edition, 2007 pp 467 – 472; Arab Bank Ltd v. Ross (1952) 2 QBD 216; Military governor of Imo State & Ors. V. Chief B.A.E. Nwauwa (1997) 2 NWLR (Pt. 490) 675; Omoboriowo & ors. V. Ajasin (1983) 10 SC 178.

Learned Counsel for the Appellants, Mr. Oloriegbe stated further that the doctrine of severance can also be invoked to strike out paragraphs in a petition alleging certain misconduct, irregularities or non-compliance in the petition just to allow trial on the remaining paragraphs of the petition. He cited Abubakar v. Bulco & Ors (2004) All FWLR (Pt. 215) 309.

Learned Counsel for the Appellants stated that the petition of the appellants is competent and should succeed based on the provision of Section 54 of the Electoral Act, 2006 as contained in ground 1 and the entire ground 3 and the averments in the petition relating to the said grounds. That from the state of pleading and the evidence on the printed records that what is in issue between the parties is who had the majority of the lawful notes cast in the election into the House of Representatives for AMAC/Bwari Federal Constituency, FCT, Abuja held on 5th and 6th April, 2008 and that all the appellants required to prove solely was who had the majority of the lawful votes cast in the election and the standard of proof required is that on the balance of probabilities simpliciter. He referred to Section 145(1)(c) of the Act which establishes that mere declaration of election result without predicating same on majority of lawful votes does not make the ‘victory’ inviolable and that when the Electoral Commission declares a result, there is a presumption that the result is correct. That this presumption is not water tight since it is rebuttable and the onus is on the Petitioner to rebut the presumption. He cited Buhari v. Obasanjo (2005) All FWLR (pt. 273) 1; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Nwobodo v. Onoh (1984) 1 SCNLR 1; Sections 115,148 (c) and 149(1) of the Evidence Act.

Learned Counsel for the appellant submitted further that it is not every and any allegation of crime made in a case that the Court must proceed to prove beyond reasonable doubt. Such an allegation must be “directly in issue” in the proceeding. He cited Alalade v. Awodoyin (1999) 5 NWLR (Pt. 604) 529 at 538 paras B- 0; INEC v. Ray (2004) 14 NWLR (Pt. 892) 92 at 121 – 122 E- E.

He stated on that in the case in hand the allegations are not allegations of crime and therefore the burden of proof placed on the petitioners/Appellants is within the balance of probability and not beyond all reasonable doubt as was found by the Tribunal as allegation of malpractice is not necessarily allegation of crime. Chukwuma v. Anyakorah & Ors. (2006) All FWLR (Pt. 302). He stated on that the standard of proof required of a Petitioners/Appellants who make allegation that an election is vitiated by non-compliance and that he had the majority of lawful votes cast in an election is preponderance of accepted evidence as election petitions though sui generis, are required to be proved on balance of probabilities and the Petitioner only needs to establish that his evidence is more likely to be true than that of the respondents. He referred to Omoboriowo v. Ajasin (1983) 10 SC 178 at 23S – 236.

In response, the learned counsel for the 1st Respondent said that what caused the contravention of the Electoral Act was multiple thumb prints of one or more individual and without the multiple thumbprints, there will be no contravention of the electoral Act 2006. That the provisions of the Act were contravened are provisions that create criminal offences and penalties. He referred to Sections 54(1) and 129(1) of the Act.

That the commission of a criminal offence is directly in issue in this matter, that if the allegation of multiple thumb prints of ballot papers are severed, there will remain no fact which can support the relief sought by the Petitioner.

The 2nd Respondent through learned counsel, Chief Oke contended that the trial Tribunal was justified in holding that the provision of section 138 (1) of the Evidence Act is applicable to this case.

He said the allegation of the commission of crime is directly in issue and is the essence of the claim in this case and must be proved beyond reasonable doubt. He referred to Nabature v. Mahuta & 81 Ors. (1992) 9 NWLR (Pt. 262) 85 at 106, Ikoku v. Oli (1962) NSCC Vol. 2 page 137; Weber G. Egbe v. Gabriel Etchie (1955 – 56) NRNLR (pt. 134); Oni v. Adeyinka (1999) 8 NWLR (pt.562) 425 at 430 – 431; Opia v. Ibru (1992) 3 NWLR (pt. 231) 658 at 708 -709.

Learned Counsel for the 2nd Respondent went on to state that the trial Tribunal was right when he held that the doctrine of severance did not apply because the allegation of multiple thumb printing of ballot papers is so tied to the allegation of majority of votes cast that severance of one greatly affects the other. Mrs. Taju, learned counsel for the 3rd – 352nd Respondents stated that too much technicality should be avoided and nothing should be inferred beyond the words of the statute. She cited Gbe v. Esewe (1988) 4 NWLR (pt. 89) 435; Abdullahi v. Alayo (1993) 1 NWLR (pt. 268) 171. That Sections 54(1), 129 (1) (d) and 145(1) must be read together with Step 4 of chapter 3.2 of the Manual Published under Section 74 of the Electoral Act, 2006 in order to arrive at the correct interpretation consistent with the object and general con of the entire statute. He cited Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606 at 620; SPDC v. Isaiah (1997) 6 NWLR (pt. 508) 263; Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (pt. 490) 675; Amadi v. State (1993) 8 NWLR (pt. 314)

644 at 663 – 664.

In reply on point of law, learned counsel for the appellants stated that the Lower Tribunal failed to consider all the issues raised and that failure resulted in a breach of the right to fair hearing. He cited Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 at 718; Imam v. Sheriff (2000) 4 NWLR (pt. 914) 80 at 174; A.G. Leventis v. Akpu (2007) 17 NWLR (pt. 1063) 416 at 436.

The Trial Tribunal in its judgment as copied from pages 1089 – 1090 of the record of proceedings stated thus:.

”In the instant case, the Petitioners are alleging multiple thumb printing, over voting and have pleaded same in paragraph (b) under the Heading “Particulars of Corrupt Practices at page 16 of the petition. The Petitioners Counsel cannot turn round to allege that it is not an allegation of crime and thus (sic) required proof on the balance of probabilities. On this ground alone, we find that the commission of crime is alleged and the onus of proof of same is beyond reasonable doubt. The doctrine of severance does not apply here because the allegation of multiple thumb printing of ballot papers is so tied to the allegation of majority of votes cast that severance of one greatly affects the other. The doctrine of severance may be allowed only in those averments other than multiple thumb printing under corrupt practices, irregularities and noncompliance already abandoned by the petitioners and struck out by the Tribunal. This shows that the allegation pleaded in the petition lingering on Section 154 (1) of the Electoral Act, 2006 are criminal in nature and must be proved beyond reasonable doubt.

The Appellants stand point is that they had abandoned all provisions said to have violated under the Electoral Act, 2006 as contained in paragraph 10 ground 1 at page 15 of the record except Section 54 of the Electoral Act, 2006 and the entire ground 2 and the only ground which the Petitioners/Appellants succeeded in establishing in this petition is ground 3 of the petition. That the law permits what Appellants had done under the doctrine of severance.

The Respondents on their part contend that what is left after the alleged abandonment of other averments in the pleadings constitute crimes and so the contention of severance would not avail the appellant since what is left after the severance, which are matters of multiple thumb printing and/or over voting are of a criminal nature, directly in issue and must be proved beyond reasonable doubt and definitely not on the preponderance of evidence.

On this score I shall restate the relevant provisions of the Electoral Act relevant to this discourse and they are as follows:- Section 54 Electoral Act, 2006

“54(1): No voter shall vote for more than one candidate or record more than one vote in favour of any candidate or record more than one vote in favour of any candidate at anyone election”

Section 129 (1) of Act States that;:

“(c) Any person who applies for a ballot paper in the name of some other person, whether such name is that of a person living or dead or a fictitious person.

(d) Having voted once at an election applies at the same election for another ballot paper.

(e) Votes or attempts to vote at an election, knowing that he is not qualified to vote at the election commits an offence and is liable on conviction to a maximum, fine N100,000.00 or 12 months imprisonment or both”.

Indeed under the rules of pleading, a pleader who has pleaded more than he needed to plead is at liberty to disregard the unnecessary or extra or surplus averments and rely on the more limited ones.

It is trite that where a Plaintiff makes an allegation of a crime in his pleadings but can succeed in his claim without proving the crime, in such a situation it cannot be said that the alleged crime was in issue or directly in issue. However if what is left is a crime and it is in issue or directly in issue then that criminal standard of proof cannot be run away from as the issue has to be proved beyond all reasonable doubt. Bearing the principles above stated in mind it is easy to agree with the position of the Respondents that this act of multiple thumb printing upon which the Appellants are hanging their hope is criminal in nature under the Electoral Act 2006 and the Criminal Code section 484 and so the appellants cannot be heard to say the standard required of them is that of the balance of probabilities and they had adequately requited that burden without more. I rely on the cases of: Nabature v. Mahuta &. 81 ors (1992) 9 NWLR (pt. 263) 85 at 106; Ikoku v. Oli (1962) NSCC Vol.2 page 137; Oni v. Adeyinka (1999) 8 NWLR (Pt. 562) 425; Weber G. Egbe v. Gabriel Etchie (1955-56) NRNLR 134; Opia v. Ibru &. Ors (1992) 3 NWLR (pt. 231) 658 at 708 – 709.

From what is available to this court and in the Court below that is the trial Tribunal what was shown to take(sic) taken place were allegations of multiple thumb printing which allegation constituting a crime is the foundation and fulcrum on which the Appellants’ claims are hinged that is that the 1st and 2nd Respondents did not score majority of the lawful votes cast at the election or that the 1st Respondent was not duly elected by majority of lawful votes cast at the said election therefore the allegations are criminal in nature under the Electoral Act and the Criminal Code Act and the proof cannot be anything less than proof beyond reasonable doubt. I rely on Sections 54 and 129(1)(c)(d) Electoral Act, 2006; Section 138(1) of the Evidence Act; Nwobodo v. Onoh (1984) 1 SCNLR 1 at 27; Falae v. Obasanjo (1999) 4 NWLR (pt. 559) 476; Oni v. Adeyinka (1999) 8 NWLR (pt. 231) 658 at 430 – 431.

The Appellants had attempted at severance but from what can be seen from the record and even from the submissions of Mr. Oloriegbe for the Appellants what was left happens to be crime directly in issue that is thumb printing which had thrown up several criminal offences and just as a near similar situation arising before the Supreme Court Bello JSC (as he then was) in Omoboriowo v. Ajasin (1983) 10 SC 178 he said:

“At the close of his case during the hearing of the petition the Petitioner abandoned the allegations of crime. It follows therefore in so far as the petition was founded on those allegations it must be dismissed”.

In the case in hand after the abandonment of the other issues what has been left is the issue of crime and so the recourse to the doctrine of severance has not served any useful purpose to the Appellants since the criminal standard of proof remained not discharged.

Therefore the two issues are answered in favour of the Respondents and against the Appellants.

ISSUES THREE AND FOUR:

Was the Election Tribunal under obligation to accept the opinion of an expert who in its opinion has failed to induce belief of the Tribunal by demonstrating his skill and basing his conclusion on scientific criteria for testing its accuracy.

Whether having regard to the facts of this case and the totality of the evidence adduced, the trial Tribunal did not come to a just conclusion by dismissing the case of the Appellants and upholding the election of the 1st Respondent.

Learned Counsel for the Appellants contended that the evidence of PW1 and PW2 on the inspection and examination of ballot papers made at INEC office, FCT, Abuja were corroborated and gave credence to by the evidence of PW3 and RW10 when they admitted under cross-examination by the petitioner’s counsel. That the evidence elicited during cross-examination is not inadmissible merely because such evidence is not supported by the pleadings of the party eliciting the evidence as it suffices if the evidence is pleaded by a party to the suit. See Buhari v. Obasanjo {2005} 13 NWLR (Pt. 941) 1 at 203; Agu v. Ikewibe (1991) 3 NWLR (pt. 130) 385; Adenuga v. Lagos Torn Council 13 WACA 125; Onyekaonwu v. Ekwubiri (1966) 1 SCNLR 55; Sketch v. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678; Bamgboye v. Olarenwaju (1991) 4 NWLR (pt. 184) 132. That any evidence elicited under cross-examination forms part of the evidence put forward by a party and as such he cannot challenge or reject it. He cited Akusobi v. Obinechi (2004) 2 NWLR (Pt. 857) 355 at 380.

Mr. Oloriegbe stated that the evidence of PW1 and PW2 were cogent, positive and direct on the issue of multiple thumbprints in favour of the 1st and 2nd Respondentswhich substantially affected the result of the election as declared by the 3rd Respondent and the evidence of the said PW1 – PW5 were chronologically following each other. That it is also clear and obvious that they were witnesses of unimpeachable character who were not shaken under cross-examination and no attempt made to contradict the entire story and narration on issue of multiple thumbprints.

For the appellants it was also contended that the burden of proof in civil cases does not remain fixed on one party but continues to shift from side to side and so the onus of adducing further evidence is always on the party who would fail if such evidence were not produced. He cited NMSL v. Afolabi (1978) 2 SC 79; Section 137 and 139 of the Evidence Act; Adeleke v. Iyanda (2001) 13 NWLR page 1; Kosile v. Folarin (1989) 3 NWLR (pt. 107) 1; Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352.

Mr. Oloriegbe stated that this is an appropriate situation and circumstance to invoke the provision of section 149(d) of the Evidence Act against the Respondents for failure or refusal to call any experts to examine the ballot papers already examined by two other experts against them despite the court under granting them that opportunity. That where there is a deliberate concealment of material facts or evidence by a party when he could produce the evidence and that it has been withheld by the party knowing full well that if he produced same would be unfavourable to him, then he should be punished by invoking Section 149(d) of the Evidence Act. He cited Adun v. Osunde (2003) 16 NWLR (Pt. 847) 643 at 667; Sule & Oladejo Asariyu v. The State (1997) 4 NWLR (pt. 67) 709. That where as in this case the expert evidence was not shaken under cross-examination and uncontradicted, the trial court is bound to accept such evidence. He cited SPDC v. Adankue (supra) 599; Elf (Nig.) Ltd. v. Sillo (1994) 6 NWLR (pt. 350) 288; Attorney General Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (pt. 121) 255; Oyakhire v. Obaseki (1986) 1 NWLR (pt. 19) 735; Seismograph Services Ltd. v. Akporiuoro(1974) 6 SC 119.

Learned Counsel for the Appellants went on to say that the contents of a document can be proved by the production of the document itself for the inspection of the court or by secondary evidence of the document. He cited Yero v. UBN Ltd. (2005) 5 NWLR (pt. 657) 470; Agbakoba v. SSS (1993) 7 NWLR (Pt.305) 353. He said that the Election Tribunal and Court Practice Directions, 2007 provides that there shall be no oral examination of a witness during his evidence in Chief except to lead the witness to adopt his deposition and tender all disputed documents or other evidence referred to in the deposition, thereby foreclosing any demonstration in open court. That the Practice Direction being Rules of Court with force of law must be obeyed by the Tribunal/Court at all times. He cited Chukwuogor v. Chukwuogor (2007) All FWLR (Pt. 349) 1154 at 1167; Haruna v. Modibbo (2004) All FWLR (Pt. 900) 487 at 591; Awuru v. Aruse (2004) All FWLR (Pt. 211) 1429 at 1439 – 40.

Learned Counsel for the Appellants submitted that in the course of leading PW1 in evidence-in-Chief asked PW1 to demonstrate before the Court on how they arrived at the conclusion reached in Exhibit “1C”, That the counsel to the Respondents objected to the procedures and cited paragraph 4(3) of the Election Tribunal and court Practice Directions, 2007 which the Tribunal accepted and so the Respondents are now estopped from raising the issue now. He cited Section 151 of the Evidence Act, Joe Iga & ors. V. Ezekiel Amakiri & Ors. (1976) 11 SC 1 at 12 – 13; Lawal v. Union Bank (1995) 2 SCNJ 132 at 145. Learned counsel for the Appellants said PW1 and PW2 gave enough demonstration in their witness statement (Exhibits 1 & 2) and in Exhibits 1A, 1B, & 1C which were further corroborated by the evidence of RW3 & RW10 under cross-examination by Petitioner’s counsel.

Mr. Oloriegbe of counsel stated that the Respondents rather than call credible evidence and witnesses to contradict, challenge and dislodge the established case by the Appellants particularly the evidence of the finger print experts resorted to substituting credible evidence with written address which the Tribunal took as correct state of affairs even though address of counsel cannot take the place of evidence. He cited Alhaji Bello v. National Bank of Nigeria Limited (1992) 6 NWLR (Pt. 246) 206 at 214; State v. Abangbee (1988) 3 NWLR (Pt. 84) 548.

He further contended that where as in this case the trial tribunal failed to properly evaluate the evidence before the appellate court should intervene and make the proper findings as should have made. He cited Adeleke v. Iyanda (2001) 13 NWLR page 1; Bornu Holdings Ltd. v. Bogoco (1971) 1 All NLR 324 at 330; Adeniji v. Adeniji (1972) 4 SC 10 at 17; Shodeinde v. The Registered Trustees of the Ahmadiyya Movement. In Islam (1983) 2 SCNLR 284 at 326; Fatoyinbo v. Williams alias Sanni (1956) SCNLR 274 at 275; Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270 at 286; Okpalako v Umeh (1976) NSCC (Vol.10) 519 at 533.

Learned Counsel for the Appellants said the witness had given satisfactory explanation on how they came about the figures they worked on and the burden of disputing that fact shifts automatically to the Respondents to state otherwise. That it is on record and not disputed that the inspection was done within INEC premises and INEC is 3rd Respondent who did not bring the unused ballot papers and the distribution charts despite the court order so as to cover up and create confusion on the figures of ballot papers issued to the experts called by the Petitioners. Therefore the findings of the trial court were erroneous in view of the admissions of paragraph 8 of the petition which stated the figures of 6,653 votes in favour of the appellants. That admitted facts need not be proved as well as unrebutted facts in a party’s pleadings are taken to have been admitted. He cited Alagbe v. Abimbola (1978) 2 SC 39; Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266; Egbuna v. Egbuna (1989) 2 NWLR (pt. 106) 773; Palm Beach Ins. V. Brulins (1997) 9 NWLR (pt. 519) 80.

Mr. Oloriegbe further stated that the judgment of the trial Tribunal was against the weight of evidence and needed be revisited by the Court of Appeal. He cited Mogaji v. Odofin (1974) 4 SC 91; Abisi v. Ekuealor (1993) 6 NWLR (pt. 302) 643 Daggash v. Bulama (2004) 14 NWLR 144.

In response learned counsel for the 1st Respondent, Chief Tunyan SAN contended that the gravamen of the Appellants’ complaint is that there was no contradiction of the evidence of the expert evidence. That there are circumstances where expert evidence though uncontradicted cannot be acted upon by the Court and some of such circumstances are:-

1. When it is contradictory.
2. When it is not consistent with normal human conduct.
3. When it failed to give the criteria upon which such opinion and conclusions are based.
4. It is useless and not admissible in law.

He cited A.N.T.S. v. Atoloye 6 NWLR (pt. 298) 233 at 253; Ogiale v. Shell Pet. Dev. Co. (Nig.) Ltd. (1997) NWLR (pt. 480) 148 at 183; Consolidated Breweries Plc & anor v. Aisowieren (2001) 15 NWLR (pt. 736) 424 at 458 – 459. Chief Tunyan SAN said the evidence of PW1 and PW2 were well contradicted during cross-examination and that the oral evidence and documents they tendered contradicted each other and so carried no probative value. That paragraph 4 (3) of the Court Practice Directions 2007 does not prevent the Appellants’ witnesses to state in detail in their witness statement on oath how the expert arrived at their conclusions, and the criteria used in arriving at the conclusions.

Chief Olusola Oke on behalf of the 2nd Respondent cited Section 57(1) of the Evidence Act on the power of the Tribunal to accept as relevant the opinion of persons specially skilled in the subject matter under consideration. He also submitted that the criteria upon which a person is accepted as an expert and his evidence accepted are as follows:-

1. He must state his qualification.

2, He must satisfy the court that he is an expert in the subject, which he is to give his opinion.

3. He must state clearly the reasons for his opinion.

He cited Mambai Sambo v. Kano Native Authority (1960) NMLR 15 at 17; Azu v. The State (1993) 6 NWLR (pt. 299) 302; Ogiale v. Shell PDC Ltd (1997) NWLR (pt. 480) 148 at 183; U.T.B v. Awaringana Enterprise Ltd. (1994) 6 NWLR (pt. 648) S6 at 81; ANTS v. Atoloye 6 NWLR (pt. 298) 233 at 258.

That a perusal of the documents would show that it is a mere collation of serial numbers of ballot papers, symptomatic of a clerical work without any statement explaining what is wrong with each listed ballot paper and how the so – called experts came to the conclusion that the ballot papers carrying the serial numbers were multiple thumb printed.

Chief Oke of counsel for 2nd Respondent said that the burden in proof in civil cases does not remain fixed on one party but shifts from side to side. It is not the same where criminal allegation is the basis or directly in issue in the claim. He cited Section 138(1), (2) & (3) of the Evidence Act and section 36(5) of the 1999 Constitution; NMSL v. Afolabi (1978) 2 SC 84. Chief Oke said calling another expert to attack the evidence of an expert is not the only means by which the same can be challenged or countered since the opposite party can do so by discrediting him in cross-examination. He referred to Ngige v. Obi (2006) All FWLR (pt. 330) 1041 at 1059. He said a close perusal of Exhibit 1C (thumb print report) will show with respect that it is not a product of any scientifically minded witness but rather a clerical computation of serial numbers of ballot papers and votes cast in the unit. That the appellants just dumped ballot papers in boxes and envelopes without any link to Exhibit 1C, the so-called expert opinion. He cited Duru-Muja v. COP (1961) NMLR 73 – 74; Haruna v. Modibo (2004) 16 NWLR (pt. 900) 487; Governor of Kwara State v. Eyitayo (1997) 2 NWLR (pt. 485) 118; Alao v. Akado (2005) 11 NWLR (pt. 935) 160 at 178; Lawal v. UTA Plc (2055) 13 NWLR (pt. 943) 1.

Learned Counsel for the 2nd Respondent contended that in the face of the failure of the Appellants to establish credible evidence the allegation of multiple thumb printing and voting, the trial Court had no alternative than to dismiss this petition. He stated that the Tribunal was not under any obligation to attach weight to a worthless evidence or evaluate the bundle of documents not demonstrated or linked with pleading or other exhibits in this case. That assuming without conceding that there were a few slips in the judgment of the Tribunal that they are not tangible and cannot lead to a reversal of the judgment. He cited Sorenke v. Odebunmi (1960) NSCLR 414; Sam v. Ekpelu (2000) 11 NWLR (pt. 642) 582; Famuroti v. Aflocke (1991) 5 NWLR (pt. 189) 1; Bankole v. Pelu (1991) 8 NWLR (pt. 211) 523.

For the 3rd – 352nd Respondents, Mrs. Taju submitted that an allegation of multiple thumb printing of ballot papers constitutes an allegation of a criminal offence which must be proved beyond reasonable doubt. She cited Nwobodo v. Onoh (1984) 1 SCNLR 1; Opia v. Ibru & Ors (1992) 3 NWLR (pt. 231) 65 at 708 – 719.

Mrs. Taju stated on that the 31st – 352nd Respondents in this Appeal are presiding officers of polling units where the Petitioners/Appellants had their agents. That all the FORM EC8AS in evidence before the Trial Tribunal were signed by the Appellants agents. That rather than call witnesses who had direct experience from the units, the Petitioners/Appellants relied on the evidence of PW1 and PW2 who cosigned Exhibit 1C in order to establish the appellants allegations of multiple thumb printing of ballot papers. She referred to Hashidu v. Goje (2003) 15 NWLR (pt. 843) 352 at 393; Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 at 315; Elijah Okoh v. State (1971) 1 NMLR 140; A.N.T.S. v. Antoloye (1993) 6 NWLR (pt. 298) 233 at 253.

Mrs. Taju for 3rd – 352nd Respondents contended that a Court or Tribunal is not bound by the opinion of an expert simply because he is an expert as the court has a duty to analyse and evaluate the said evidence. She cited Edoho v. State (2004) 5 NWLR (pt. 865) 17 at 46; Okorogba v. State (1992) 2 NWLR (pt. 222) 244; Common wealth Shipping Representative v. P & O Branch Services (1923) AC 191, 212.

Learned counsel for Respondents 3rd – 352nd submitted that address of counsel cannot take the place of evidence but the Court or Tribunal can rely on it as the need arises. She referred to Kpana v. TR PCN (2006) 3 NWLR (pt. 966) 106 at 114; Abdulkarin v. Anazodo (2006) 11 NWLR (pt. 991) 299.

Mrs. Taju further said that an allegation of multiple thumb printing raising an allegation of corrupt practices which is a criminal offence and the burden of proof is that beyond reasonable doubt. She cited Nwobodo v. Onoh (1984) 1 SCNLR 1; Oni v. Adeyinka (1999) 8 NWLR (pt.562) 425 at 430 – 431.

Mrs. Taju concluded by saying that the Appellants have anchored on an academic exercise which does not go to the merits of the case and there is nothing upon which this appellate court can dislodge the findings of the trial Tribunal. She cited Adekunle v. Aremu (1998) 1 NWLR (pt.533) 203 at 225; Angbaza v. Ebye (1993) 1 NWLR (pt. 268) 133 at 136.

In reply on points of law learned counsel for the Appellants stated that the unchallenged evidence of the Appellant without any evidence being called by the 2nd Respondent should be believed by the trial Court and by extension this appellate one. He cited Owners, M/V Gongola House Hope v. V.S.C. (Nig.) Ltd. (2007) 15 NWLR (pt. 1056) 215 – 216.

Also that there were averments of fact in a party’s pleading without evidence to establish same, is not proof of anything by the other party and should be taken as abandoned. He cited Olorunfemi v. Asho (2000) FWLR (pt. 20) 654 at 666; Egbunike v. ACB Ltd (1995) 2 NWLR (pt. 375) 34; Martchem v. Kent W.A. Ltd. (2005) 5 SC (pt. 11) 121 at 138; Bala v. Bankole (1986) 3 NWLR (pt. 27) 141; Magnusson v. Koiki & 2 Ors (1993) 12 SCNJ 114 at 124; Broadline Enterprises Ltd. v. Monterey Maritime Corp. & anor. (1995) 10 SCNJ 12; Obulor & anor v. Oboro (2001) 4 SCNJ 22; Neka B.B.B. Manufacturing Co. Ltd. v .A.C.B .Ltd (2004) 1 SCNJ 193 at 205.

To answer the questions posed in these two issues I shall quote from the judgment of the Tribunal and that is:-

“In the light of the above, we are satisfied that the two witnesses (Pw1 and PW2) though they may not be academically qualified or sound, they have a considerable skill in the field of study. They need not be graduates or professors in the field. What is required is their experience backed by a moderate educational qualification. They have attended courses relevant to that field and that have experience of over ten years. We are satisfied that they have adequate experience in the field of finger print and forensic Examination. The mere fact that they did not tender their certificates does not make them incompetent in the field they are giving evidence on. The test of the opinion of an expert is relevant on the subject he is to give his opinion. In the instant case it is undoubted that the allegation of multiple thumb prints of ballot papers requires the evidence of an expert as stipulated by Section 157(1) of the Evidence Act…… The contested question here is the allegation of thumb printing of ballot papers by one or more individuals in favour of the Respondent (P.D.P.).

From the foregoing, we hold and find that Exhibit 1C has no evidential value and we attach no weight to it. The Petitioners therefore have failed to prove the allegation of multiple thumb printing of ballot papers in favour of 1st and 2nd Respondents as alleged in this petition. The witnesses did not demonstrate the use of the magnifying glass nor tendered it/them in evidence. In fact, the inability of the PW1 and PW2 to demonstrate their skill in detecting the multiple thumb printed ballot papers in open court calls to question the competence of the Report (Exhibit 1C). It is further submitted that the Tribunal was not told how many of the ballot papers vary the loop pattern. How many carry Arch Pattern and how many carry the Whorl Pattern which are the known types of finger print patterns. It is when a finger print on a ballot paper carries identical pattern and ridge with those of other ballot papers that can be concluded that there is multiple thumb printings by an individual or some individuals. We confirm the submissions and hold that the Petitioners have failed to prove beyond reasonable doubt through PW1 and PW2 and Exhibits 1(a) (b) and (c) PPT 1-5, the 253 Envelopes, that 16,245 ballot papers were multiple thumb printed in favour of the PDP”.

That is in the main the finding and decision of the trial Tribunal. In addition to that is the fact that in testifying PW2, one of the experts stated:-

“On arrival we concentrated only on the papers that were in dispute. It was INEC that gave us the ballot papers for examination. INEC gave us all the papers. We examined only the PDP ballot papers because they were the ones in dispute. We discovered that 16,145 were multiple thumb printed. I was not biased because I examined the papers which (sic) were given to us”.

The main thrust of the different positions taken by the parties here in whether or not through the expert – opinion of PW1 and PW2 the Petitioners/Appellants had discharged the burden upon them on the issue of whether multiple them printing had been made out and what could properly be the right number of votes of the 1st and 2nd Respondents as against the appellants and on whom did the majority of the lawful votes reside.

Under Section 57(1) of the Evidence Act the Tribunal is vested with the power to accept as relevant the opinion of persons especially skilled in the subject matter under consideration. The criteria upon which such a person may be accepted as expert and his evidence accepted are laid down as follows:-

(1) He must state his qualification.

(2) He must satisfy the Court that he is an expert in the subject, which he is to give his opinion.

(3) He must state clearly the reasons for his opinion.

These criteria are conjunctive and when any expert witness does not meet any of these the Court is at liberty to refuse to accept his evidence as where the expert is suspected to be biased or the court finds the expert to have failed to furnish it with the necessary scientific criteria for testing the accuracy of their conclusion, or it is contradictory or inconsistent with normal conduct or is useless and not admissible in law.

See the following cases:

Sambo v. Kano Native Authority (1960) NMLR 15 at 17; Azu v. The State (1993) 6 NWLR (pt. 299) 302; Ogiale v. Shell Petroleum Development Co. (Nig.) Ltd. (1997) NWLR (pt. 480) 148 at 183; UTB v. Awarungana Enterprise Ltd. (1994) 6 NWLR (pt. 648) 56 at 81; A.N.T.S. v. Atoloye 6 NWLR (pt. 298) 233 at 258.

Having these tested principles and criteria above stated in mind and correlating them to the evidence before the trial Tribunal and the findings and conclusions of that Tribunal it is difficult to depart from the views of the Tribunal especially from the facts that the Petitioners/Appellants had pleaded that the score of 19,734 votes as those scored by PDP at the Bye-Election and in evidence as proffered by PW1 and PW2 they came up with the figure 21,505 and no explanation was proffered for this discrepancy.

Furthermore PW2 had under cross-examination said INEC gave them all the Ballot Papers for examination but they examined only that of PDP because they were the ones disputed. With the foregoing it is no wonder the Tribunal rejected the expert opinion and was satisfied that the inconsistency between what was pleaded and what was proved were not properly explained and so the proof necessary for the multiple thumb printing and over voting had not been made out. This is so since it is not enough for an expert to give an opinion and conclusion leaving out the criteria acceptable to the court as to which that opinion and conclusion are based, therefore rendering his evidence valueless since the Tribunal needed to form their own independent judgment by the application of those criteria to the facts provided in evidence. I have not been persuaded by the appellants to form a contrary view or opinion to what the trial Tribunal did. I rely on Ogiale v. Shell Pet. Development Co. (Nig.) Ltd. (1997) NWLR (pt. 480) 148; A.N.T.S. v. Atoloyeto NWLR (pt. 298) 233 at 253.

It is evident that the Appellants have failed to convince this Appeal Court of the merit of their appeal which I do not hesitate in dismissing from the reasons above stated. This appeal is dismissed. I affirm the decision and orders of the Trial Tribunal.

I order costs of N100,000.00 to be paid to the Respondents 1st and 2nd by the Appellants.

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Other Citations: (2009)LCN/3462(CA)