Hon. Otelemaba D. Amachree V. Boma Goodhead & Ors (2008)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

On 28th April 2007 the 3rd respondent, the Independent National Electoral commission (INEC) conducted elections into the Rivers State House of Assembly. The Appellant and the 1st Respondent herein were among the candidates who contested the election as representatives of constituency 1 in Asari Toru Local Government Area of the state. The Appellant contested on the platform of the 2nd respondent, the Peoples Democratic Party (PDP), while the 1st respondent contested on the platform of the Action Congress (AC). At the conclusion of the election, the 3rd respondent returned the Appellant as duly elected having scored the highest number of votes cast. The 1st respondent was dissatisfied with the result declared by the 3rd respondent and filed a petition before the Governorship and Legislative House Elections Tribunal holden at Port Harcourt, Rivers State. The grounds of the petition as stated at page 5 of the record are:

i. That the 1st respondent was not duly elected by majority of lawful votes cast at the election.

ii. The total voting strength of Asari Toru Constituency 1 is 48,308 out of which petitioner scored 37,566.

The 1st respondent (as petitioner) sought the following relief from the lower Tribunal:

“Wherefore your petitioner prays that it may be determined that the said 1st respondent was not duly returned and that the said Boma Goodhead (Petitioner) was elected and ought to have been returned”.

The petition was accompanied by witness depositions on oath and duly served on all the parties. The 1st and 3rd – 12th respondents filed their respective replies thereto. The petitioner filed replies in response to the 1st and 3rd – 12th respondents’ replies, accompanied by her written statement on oath. The 2nd respondent entered appearance to the petition but filed no pleadings and did not participate in the hearing at the conclusion of the pre-hearing session the lower Tribunal issued a report on 15/11/07 setting down five issues for determination of the petition.

The issues are set out in the judgment at pages 418- 419 of the record thus:

1. Whether the Petitioner scored the majority of the lawful votes cast at the election for Rivers State House of Assembly Constituency 1 in Asari – Toru Local Government Area of Rivers State held on 28th April 2007 and ought to have been returned as duly elected instead of the 1st Respondent herein.
2. Whether the 3rd – 12th respondents’ office at Asari – Toru Local Government Area was vandalized by militants/thugs who carted away the Electoral materials from where they were kept.
3. Whether the petitioner was in unlawful possession of the purported electoral materials used in the conduct of the election of 28th day of April 2007 in Asari – Toru Local Government Area.
4. Whether the Chairman of Asari – Toru Local Government Area, the Nigerian Police and the Nigerian Army rigged the election of the 28th day of April 2007 in Asari – Toru Local Government Area in favour of the 1st respondent and ought to be joined as a necessary party. And
5. Whether Political party agents are election officials for the 3rd respondent (INEC) to be involved in the distribution of election materials under its custody (INEC) on the Election Day.

At the hearing the petitioner (1st respondent herein) called witnesses and tendered documentary evidence. The 1st respondent (appellant herein) also called witnesses. The 3rd – 12th respondents did not lead evidence in support of their pleading. At the conclusion of the hearing and after considering the written addresses of the parties the lower Tribunal in a considered judgment delivered on 1st February 2008 nullified the election, set aside the declaration and return of the Appellant and ordered the 3rd – 12th respondents to conduct a fresh election into the Rivers State House of Assembly Asari – Toru Local Government Area Constituency 1 within ninety days.

The appellant was dissatisfied with the decision and filed a notice of appeal on 15th February 2008 containing nine grounds of appeal.

The 1st respondent was dissatisfied with the part of the judgment wherein the lower Tribunal held that she failed to prove that she won the election. She also filed a notice of appeal on 19th February 2008 containing ten grounds of appeal. On 29/10/08, having regard to the notice of appeal filed by the appellant, which was first in time, this court granted leave to the 1st respondent to amend her notice of appear to read “Notice of cross-Appeal” and to make consequential amendments to the description of the parties accordingly.

All the parties, except the 2nd respondent, filed and exchanged briefs of argument in respect of the appeal and the cross-appeal. At the hearing of the appeal on 18/11/08, S.R. Dapaa – Aodo Esq. Leading H.C. Oputa Esq. and E.O. Kalu Esq. adopted the appellant’s brief dated and filed on 13/3/08. He also adopted his replies to the 1st and 3rd – 12th respondents’ briefs both said to have been filed on 20/3/08. He urged us to allow the appeal and dismiss the cross-appeal.

Mr. I.S. Dokubo, leading P. Karibi-Briggs, adopted the 1st respondent’s brief, which was deemed filed on 29/10/08. It incorporates the 1st respondent’s reply to the appellant’s brief and her cross-appellant’s brief. He also adopted the cross-appellant’s brief of argument in response to the 3rd – 12th respondents’ brief filed on 16/10/03 and the cross-appellant’s reply brief to the 1st respondent’s brief filed on 27/3/08. He urged us to dismiss the appeal and allow the cross appeal.

Mr. O. Osaze – Uzzi, learned counsel for the 3rd – 12th respondents, adopted the 3rd – 12th respondents’ brief, which was deemed, filed on 9/10/08. Arguments in response to the main appeal are incorporated with arguments in response to the cross appeal. He urged the court to allow the appeal and dismiss the cross appeal. He urged us to discountenance the document titled “cross-appellant’s brief of argument in response to the 3rd – 12th respondents’ brief” on the ground that the document is unknown to the Rules of this Court. He referred to Order 17 of the Court of Appeal Rules 2007. He submitted that in the event that it is deemed a proper reply brief it was filed out of time without leave.

Mr. Dokubo, learned counsel for the 1st respondent/cross appellant submitted that the document is a reply brief.

From the nine grounds of appeal the appellant formulated four issues determination in this appeal. They are:

1. Whether the petition presented by the petitioner/respondent was competent. (Grounds 1 and 2).
2. Whether on the facts and circumstances of this case, the Tribunal was right in refusing to dismiss the petitioner/respondent’s petition. (Grounds 5 and 7).
3. Whether on the facts and circumstances of this case the Honourable Tribunal was justified in its conclusion regarding Exhibit P9 and collation of results. (Grounds 3 and 4).
4. Whether on the facts and circumstances of this case the Honourable Court was justified in annulling the election of the appellant. (Grounds 6 and 8).

The 1st respondent filed a notice of preliminary objection in Respect of the appellant’s first issue for determination. It was filed on 8/10/08. Arguments in respect thereof are contained in the 1st respondent’s brief. In the alternative, the 1st respondent adopted the issues as formulated by the appellant. I observe that the document, which was amended pursuant to an order of this court on 29/10/08, is erroneously headed “cross appellant’s brief” instead of 1st respondent’s brief”. It is pertinent to emphasise here that despite the fact that Paragraphs 5 and 7 of the Practice Directions No. 2 of 2007 provide for the filing of the appellant’s brief within ten days after service of the record of proceedings and the respondent’s brief within five days after service of the appellant’s brief, the utmost care must be taken in the preparation of the said briefs to ensure that they comply with the rules, not only in content but also in nomenclature. It is clear from the arguments contained in the so-called “cross appellant’s brief” that it was filed in response to the appellant’s brief. In order to do substantial justice in this appeal, the said brief shall be accorded due consideration notwithstanding the erroneous and misleading heading.

The 3rd – 12th respondents formulated the following four issues for determination:

1. Whether the Honourable Trial Electoral Tribunal rightly decided on the issue of the competence of the Election petition filed by the petitioner?
2. Whether the Honourable Trial Electoral Tribunal was right in not dismissing the petition of the petitioner after holding that Exhibits P1 – P6 (Form EC8A (1) – Statement of Results of poll from Polling Stations) relied upon as the basis of the petition were worthless and meaningless in the circumstances of this case?
3. Whether the Honourable Trial Electoral Tribunal was right in its decision nullifying the entire election as it did in the circumstances of this case?
4. Whether the Honourable Trial Electoral Tribunal was not in violation of the parties, right to fair hearing when it nullified the entire election without affording the parties, particularly 3rd – 12th respondents a hearing on that issue?

I must state here that upon a careful examination of the court’s record there is no record of filing of the appellant’s reply to the 1st respondent/cross appellant’s brief said to have been filed on 20/3/08. From our records, the only document filed by the appellant on 20/3/08 is the document titled 1st respondent’s brief of argument to the petitioner/cross appellant’s cross appeal”.

I observed earlier in this judgment that the 1st respondent/cross appellant filed a notice of preliminary objection to the appellant/cross respondent’s first issue for determination.

According to the notice of preliminary objection filed on 8/10/08 the grounds of objection are set out in paragraph 5.02 of the 1st respondent/cross appellant’s brief. The grounds are:

i. “The issue arose from an interlocutory matter.

ii. It was decided.

iii. 1st respondent/appellant appealed but abandoned the appeal.

iv. No leave was sought to raise it now.

v. Issue was not one of the 5 (five) set down for hearing by the Honourable Tribunal”.

Order 10 Rule 1 of the Court of Appeal Rules 2007 provides:

“A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.” (Underlining mine).

Upon close scrutiny of the said objection, I observe that it does not challenge the competence of any of the grounds of appeal nor does it challenge the jurisdiction of this Court to hear the appeal. An issue for determination in an appeal must be predicated upon a ground of appeal, which must in turn relate to and challenge the ratio of the decision appealed against. See: Egbe V. Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part 1) 306: Leedo Presidential Hotel Ltd. V. B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A – C. The proper procedure in the instant case would have been for the 1st respondent to challenge the ground of appeal from which the issue was formulated.

Secondly the objection is not argued separately in the brief, which is the usual practice, but as part of submissions under the heading “issues for determination”. I hold that the so called preliminary objection is incompetent. It is accordingly struck out.

I have considered the issues formulated by the appellant and the 3rd – 12th respondents. I am of the view that the issues formulated by the appellant are comprehensive enough to resolve the issues in contention in this appeal. The appeal shall therefore be determined on the issues formulated by the appellant. Issues 3 and 4 are interwoven and shall be considered together under issue no 4 which shall be renumbered as issue No. 3.

Issue 1.

“Whether the petition presented by the petitioner/respondent was competent.”

This issue is distilled from grounds 1 and 2 of the notice of appeal.

It is the, appellant’s contention that the 1st respondent’s petition before the lower Tribunal filed on 26th May 2007 was incompetent for failure to comply with Paragraph 1 (1) and (2) of the Election Tribunal and Court Practice Directions 2007 (hereinafter referred to as Practice Directions 2007). It is contended that in a document accompanying the petition titled “Copies/list of every document to be relied on at the hearing”, six items were listed therein while only four were attached. Learned counsel for the appellant, S.R. Dapaa-Addo Esq., submitted that the issue was raised at the pre-hearing stage and the application to dismiss the petition on grounds of incompetence was refused he submitted that the issue was also raised in the appellant’s final address and was again overruled.

Learned counsel submitted that the Practice Directions 2007 must be strictly obeyed. He referred to Paragraph 1 (i) (c) of the Practice Directions, which provides:

“1. (i) All petitions to be presented before the Tribunal shall be accompanied by:

(c) Copies or list of any document to be relied on at the hearing of the petition.”

He submitted that the law is that where the words of a statute are clear and unambiguous they must be given their plain and ordinary meaning. He relied on: Owena Bank V. N.S.E. Ltd. (1997) 8 NWLR (515) 1: N.D.I.C. V. Okem Enterprises Ltd. & Anor. 18 NSCQR (Part 1) 42 at 102: Ronik Motors Ltd. & Ors. V. Wema Bank Ltd. (1983) 6 SC 158. He submitted that the lower Tribunal adopted the literal rule of construction when it held that the petitioner had the option of either setting out the copies of the documents sought to be relied upon at the trial or listing the said documents. He submitted that the petitioner was not entitled to exercise both options together by exhibiting copies of some of the documents and only listing others. He argued that the appellant was denied the opportunity of knowing the contents of items nos. 5 and 6 of the said “copies or list of documents to be relied on at the hearing”. He submitted that in spite of this the said items constitute issues 2 and 3 in the issues for determination formulated by the Lower Tribunal for the resolution of the petition. He submitted that the petition ought to have been struck out and urged us to resolve this issue in favour of the appellant.

In reply to this issue, learned counsel who prepared the 1st respondent’s brief, Chief O.T.D.K. Amachree, urged us to discountenance this issue as it was not one of the issues for determination before the lower Tribunal. He submitted that in his final address, learned counsel for the appellant digressed from the issues formulated by the lower Tribunal in compliance with Paragraph 3 (10) of the Practice Directions and formulated his own issues. He submitted that the lower Tribunal was wrong to have considered the issue. He relied on: Kinfau V. Kinfau (2006) All FWLR (325) 188 at 203-204 G – C: Ojoh V. Kamalu (2006) All FWLR (297) 978 at 1001 F. He submitted that the lower Tribunal had earlier ruled that the petition was competent.

With regard to the issues for determination formulated by the lower Tribunal, particularly issues 2 and 3, learned counsel submitted that the 1st respondent was effectively represented by counsel throughout the pre-hearing session and that the issues for determination were settled before the trial of the petition. He submitted that none of the parties were taken by surprise. He urged us to resolve this issue against the appellant.

Learned counsel for the 3rd – 12th respondents, O. Osaze-Uzzi Esq., at page 5 of his brief, opted not to proffer any argument in respect of this issue.

I have considered the submissions of learned counsel for the appellant and the 1st respondent in support of their respective positions on this issue. In the course of his submissions, learned counsel for the appellant referred to the fact that this issue had been raised and ruled upon by the lower Tribunal at the pre-hearing stage. The appellant’s notice of preliminary objection dated and filed on 18/7/07, supporting affidavit and written, submission in support thereof are at pages 90 – 97 of the record.

The 1st respondent’s counter affidavit and written address in opposition thereto are at pages 98 – 104 of the record. The lower Tribunal, in a considered ruling delivered on 14/9/07 (pages 347 – 356 of the record), held that the petitioner had substantially complied with the provisions of Paragraph 1 (i) (c) of the Practice Directions 2007. It therefore struck out the preliminary objection.

There is no appeal against the ruling.

It is correct, as submitted by learned counsel for the appellant that the issue was raised again in his final address and that the lower Tribunal considered it in the course of its judgment at pages 440 – 441 of the record. The position of the law is that having given a considered ruling on the issue on 14/9/07 the lower Tribunal became functus officio. It had no jurisdiction, constitutional, statutory or inherent, to reopen or reconsider the issue in the course of the judgment. See: Ibe V. Onuorah No. 2 (2001) 9 NWLR (719) 519 at 526 A – B; Alhaji A. Ahmed & Co. Ltd. V. AIB Ltd. (2001) 10 NWLR (721) 391 at 403 F: Intra Motors (Nig.) Plc. V. Aknloye (2001) 6 NWLR (708) 61. The only circumstances in which a court can revisit a judgment or ruling once delivered is to rectify an accidental slip or typographical error therein under the “slip rule”, so long as it would not occasion a miscarriage of justice. See: Alhaji I.Y. Ent. Ltd. V. Omolaboje (2006) 3 NWLR (966) 195 at 202 E – F: Joe V. Nzegwu (2001) 24 WRN 113. In the instant case the issue of correcting an accidental slip or typographical error did not arise. Grounds 1 and 2 of the notice of appeal are predicated on the judgment of 1st February 2008. It would appear that learned counsel for the appellant is under the mistaken impression that a fresh ruling was delivered on the competence of the petition in the course of the judgment. It is instructive to note that the issue of the options open to a petitioner in compliance with Paragraph 1 (1) (c) of the Practice Directions was raised during arguments on the preliminary objection. See page 350 paragraphs 2 and page 351 paragraphs 2 of the record. In the judgment the lower Tribunal maintained its earlier position that the petition was competent. The ruling of 14/9/07 is therefore valid and subsisting until set aside by an appellate court. As there is no appeal against the ruling of 14/9/07, I am of the view that this issue and the grounds upon which it is predicated are incompetent. Grounds 1 and 2 of the notice of appeal and issue no. 1 predicated thereon are hereby struck out.

Issue 2

Whether on the facts and circumstances of this case the Tribunal was right in refusing to dismiss the petitioner/respondent’s petition.

In support of the second issue, learned counsel for the appellant submitted that the appellant tendered Exhibits P1 – P6 (Forms EC8A (i), which she said she obtained from her party agents, to prove that she had a majority of the lawful votes cast at the election. He referred to the finding of the lower Tribunal at page 451 lines 6 – 12 of the record where it held that the failure of the 1st Respondent to call any of her party’s polling unit agents who were present when Exhibits P1 – P6 were collated was fatal to her case. He submitted that the finding was consistent with the decisions on the issue of burden of proof in cases such as:

Ezeazodosiako V. Okeke (2005) 16 NWLR (952) 612 at 616: Buhari & Anor. V. Obasanjo & Ors. 23 NSCQR 442 at 727; Iloabachie V. Iloabachie 22 NSCQR (Part II) 672 at 691; Jolayemi & Ors. V. Alaoye & Anor. 18 NSCQR (Part II) 682 at 703.

Learned counsel for the appellant submitted that the conclusion of the lower Tribunal that the petitioner failed to establish her case meant that the petition had collapsed and the proper order to make in the circumstances was an order dismissing the petition, He relied on the case of: Ihute V. INEC (1990) 4 NWLR (599) 360. He urged us to resolve this issue in the appellant’s favour.

In reaction to this issue, learned counsel for the 1st respondent submitted that the argument of the appellant is premised on the assumption that if the 1st respondent’s polling unit agents had been called as witnesses it would have resolved the issue of the presence of Exhibits P1- P6 before the lower Tribunal. He submitted that the said exhibits are statement of Results from Polling Units (Form EC8A (1) which are neither prepared nor authenticated by party polling agents. He referred to sections 46 (2) & (3), 64 (3) and 75 0f the Electoral Act 2006.

He submitted that under the law, while it is desirable that the unit and polling agents should sign the result forms, their absence or refusal to sign the forms would not render them invalid. He submitted further that the appointment of unit polling agents does not preclude a candidate from doing acts, which the polling agents are appointed to do on Election Day. He submitted that the polling agents have no direct link to the making of Exhibits P1 – P6, which are public documents in their original and duplicate form.

Learned counsel observed that the issue in controversy is whether Exhibits P1 – P6 were tendered from proper custody, having been tendered through PW2, a constituency collation agent for Accord Party and not through one of the 1st Respondent’s polling unit agents. Relying on the case of: Ogbunyiya V. Okudo (1979) 6 – 9 SC 32 at 38, he submitted that the custody from which a public document is produced is immaterial so long as the document is pleaded and relevant to the fact in issue. He noted that in ruling on the admissibility of Exhibits P1 – P6, the lower Tribunal at page 440 paragraph 2 of the record, had earlier held thus:

“Applying this test if seems to us that Exhibits P1 – P6 and Exhibit pg were under lawful custody of the petitioner and very relevant to her petition and it is not the business of the court to concern itself as to how it was obtained”.

He argued that the lower Tribunal could not approbate and reprobate on the same issue by subsequently declaring in the judgment that Exhibits P1 – P6 amount to hearsay and lack evidential value. He relied on: Union Bank of Nigeria plc. V. Nwachukwu (2000) FWLR (6) 986 at 995 H – 996 C. He noted that the issue was raised by learned counsel for the appellant in his written address, which digressed from the issues for determination already settled by the lower Tribunal. He contended that the said address ought not to have been considered.

Learned counsel submitted further that the law is that a party is not compelled to call a particular witness where the fact to be established could be proved by other means. He maintained that it is the evidence and not the means by which it is obtained that is material, He relied on: Odili V. The State (1977) 4 SC 1 at 8: Alonge V. Police (1959) 4 FSC 203; Ukachukwu V. Uba (2006) All FWLR (300) 1736 at 1755 E – 1756 A. He contended that Exhibits P1 – P6 are documents prepared through the activities of the 3rd -12th respondents, who failed to testify. He noted that they did not oppose the admission of the documents as exhibits. He argued that PW2 who tendered the documents is a constituency collation agent of the Accord Party, who by virtue of Sections 64 and 76 of the Electoral Act is authorised to receive copies of such forms as in Exhibits P1 – P6, for onward transmission to his principal. He stated that PW3 and PW5 also identified the exhibits as results they collated for their own political parties.

Learned counsel submitted that the cases cited by the appellant, viz: Ezeazodosiako V. Okeke (supra) and Buhari V. Obasanjo (supra) do not adversely affect the 1st respondent’s case. He maintained that the 1st respondent discharged the burden of proving that the appellant did not score the majority of lawful votes cast at the election and ought to have been returned as the winner.

In response to this issue, learned counsel for the 3rd – 12th respondents; submitted that the first issue formulated for determination by the lower Tribunal formed the basis on which the petition was fought. The issue reads thus:

“Whether the petitioner scored the majority of the lawful votes cast for the election of the Rivers State House of Assembly in Constituency 1 in Asari – Toru Local Government Area of Rivers State held on 28th April, 2007 and ought to have been returned as duly elected instead of the 1st respondent herein.”

Learned counsel reproduced paragraph 3 (xix) of the petition at page 5 of the record and submitted that to succeed the petitioner was bound to lead admissible evidence in proof thereof. He submitted that the 1st respondent tendered Exhibits P1 – P6 in an attempt to prove her case. He argued that the lower Tribunal rightly held at page 451 of the record that the tendering of the said exhibits through PW2 of the Accord Party, rather than through one of the polling unit agents of her own party, was fatal to her case. He contended that the situation in this case is the same as in the case of Ezeazodosiako V. Okeke (supra), relied upon by the lower Tribunal He submitted that the lower Tribunal, rightly in his view, further held that the 1st respondent failed to plead the results reflected in Exhibits P1 – P5 unit by unit and therefore the said exhibits lacked evidential value. He submitted that the lower Tribunal correctly evaluated the evidence in the circumstances. On the pleading of results unit by unit he referred to the cases of:

Awuse V. Odili (2005) 16 NWLR (952) 416 at 436 – 437 ratio 1; Nwobodo V. Onoh (1984) 1 SC 1 at 35 – 36.

Learned counsel submitted that the lower Tribunal having found that the 1st respondent failed to make out a prima facie case ought to have dismissed the petition. For the definition of prima facie case he relied on: Gafari Ajidagba V. I.G.P. (1958) 3 FSC 5 at 6. He submitted that the consideration of the case of the respondents in an election petition does not arise until the petitioner has made out a case, as the petitioner must rely on the strength of his case and not on the weakness of the respondent’s case. He relied on Sections 135 and 136 of the Evidence Act.

Also: Awuse V. Odili (supra) at 500 F. He urged us to resolve this issue in favour of the appellant.

Sections 135, 136 and 137 of the Evidence Act provide:

135 (1) whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts must prove that those facts exist.

(2) Where a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

136. The burden of proof in a suit or proceeding lies on that Person who would fail if no evidence at all were given on either side.
137. (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the Pleadings.

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

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

In civil cases, it is the duty of the party who asserts to prove his case on the balance of probability, except where there is an allegation of the commission of a crime, which requires proof beyond reasonable doubt. It is also trite that the claimant must satisfactorily discharge this burden by establishing a prima facie case before the onus of proof would shift to the respondent. See: Iloabachie V. Iloabachie 22 NSCQR (Part II) 672; also found in (2005) 13 NWLR (943) 695) Jolayemi V. Alaoye 18 NSCQR (Part II) 682 at 703: also found in (2004) 12 NWLR (887) 322.

Although Election Petitions are of a special class, they are nonetheless civil proceedings and the provisions of the Evidence Act reproduced above are applicable thereto. See Omoboriowo V. Ajasin (2007) 3 EPR 488 at 523 – 524: Ajadi V. Ajibola (2004) 16 NWLR (898) 195.

Against this background I shall consider the case of the 1st respondent before the lower Tribunal in light of her Pleadings and the evidence led in respect thereof. As duly noted earlier in this judgment, the contention of the 1st respondent before the lower Tribunal was that the appellant was not duly elected by a majority of lawful votes cast at the election. That she scored the highest number of votes and ought to have been returned as the winner.

Paragraphs 3(iv), (v), (vi), (viii), (x), (xv), (xvi), (xvii), (xviii), (xix), And (xx) of the petition, which I consider relevant to this issue are reproduced hereunder:

3.iv. “The election was originally scheduled for 14th April 2007 but was cancelled because certain irregularities acknowledged by the Local Government Area Electoral Officer in his handwritten (sic) not of even date.

v. The election thereafter re-scheduled for Saturday 28th April 2007 and it was held accordingly.

vi. The petitioner and her party employed and deployed many agents to monitor the election in several capacities and report back to them. The other candidate and their parties did the same.

viii. On the Election Day the 3rd respondent through 4th respondent invited officials and political party agents to its office at the Buguma sand filled area and efficiently distributed election materials to those entitled for the conduct of a free and fair election. The materials were collected in an orderly manner in the Presence of politicians and agents and those who received them quietly dispersed to their stations to conduct the election.

x. In a sudden twist of events the 4th respondent and the 5th – 12th respondents apparently agreed with the 1st respondent and a stalwart of his party – the Chairman of Asari – Toru Local Government Area to leave the 3rd respondent’s office premises in furtherance of a preplanned arrangement to abandon their duties and flee from the scene to an unknown destination.

xv. The 4th-12th respondents and those who left with them i.e. the 1st respondent, his party stalwart and the armed men never showed up again in Buguma until the election ended. All efforts made to locate them failed. The petitioner and her political party made written Protests about this to the 3rd respondent.

xvi. However at the end of the election those sent out to monitor it and bring reports successfully performed their assigned roles and in the process brought back to the petitioner Form EC8A (i) (Statement of Result from Polling Stations) showing results in 64 units out of the 100 units in the 6 wards (i.e. 1-6) making up Constituency 1 Asari Toru Local Government Area of River State.

xvii. The 4th – 12th respondents were not available to collate, return and declare the result of the election of 28th April 2007. They never announced the result at any sport in Buguma or elsewhere in Asari Toru Local Government Area.

xviii. But on Sunday 29th April 2007 the 3rd respondent announced 1st respondent as the winner of the election. It published Form EC8E (i) (Declaration of Result of Election) as proof. In the published result the votes accorded for each contestant show:

a. AC – 258

b. A – 294

c. ADC – Nil

d. CPP – 108

e. DPP – 1619

f. NDP – 544

g. NSDP – Nil

h. PDP – 23,926

i. UNDP – Nil

j. PPP – Nil

The figures are imaginary and do not reflect the correct result of the election.

xix. It is contended that the correct result collated from the 64 units out of the 100 units in the Constituency 1 shows that the petitioner won the election. Petitioner shall rely on the ballots in her possession. She got them through her agents. She will also rely on the entries on Form EC8A (i) in her possession, which her agents brought back to her also. In essence, the accurate result from the collated ballots is as follows:

a. AC – 37,566

b. PDP – 1,764

c. A – 2,212

d. DPP – 712

e. NDP – 595

f. ANPP – 40

g. JP – 10

This represents the outcome of the election of 28th April 2007 in Constituency 1 Asari Toru Local Government Area.

xx. The petitioner has duplicates of the Statement of Result of Poll Form EC8A (i) because the original copies were dispatched and forwarded to the 3rd respondent at the collation centre in Buguma but 4th – 12th respondents were not there to perform their duties.”

(Underlining mine).

At the trial the 1st respondent testified as PW5 and called five other witnesses. Her case before the lower Tribunal (see her written statement on oath at pages 9 – 12 and 135 – 139 of the record and her oral evidence at pages 391-394) was that on 28th April 2007, the 3rd respondent through the 4th respondent duly distributed election materials to electoral officials in the presence of contestants and their agents for the purpose of conducting elections for membership of the Rivers State House of Assembly Asari – Toru Local Government Area Constituency 1. That the distribution was done in a peaceful and orderly manner and thereafter everyone dispersed for the conduct of the election. It was the 1st respondent’s case that elections held in all the 100 units of the 6 wards that make up the Constituency. She alleged that during the course of the election, after she had cast her vote, it came to her knowledge that the Electoral officer, the Collating and Returning Officers were being taken away by armed policemen and soldiers, and that they were accompanied by the appellant. That they were pursued as far as the Local Government council secretariat, Buguma but could not be pursued further due to the presence of armed soldiers stationed close to the Secretariat, who were shooting into the air. That by the end of voting none of the electoral officials was available to collate the results. That notwithstanding the non-collation of results the appellant was declared the winner of the election with 23, 926 votes against 258 votes credited to her. That her agents brought some copies of Form EC8A (i) containing results collated from 64 out of the 100 units in the constituency and that the said collation revealed that she won the election with 37, 566 votes against the 1st respondent’s 1, 764 votes. Among the documents she tendered was Exhibit P9, a certified true copy of Form EC8E (i), Declaration of Results of Election, the document by which the return of the appellant as winner of the election was declared.

PW1, Ibinabo Olu Dauphin, a member of the PDP testified that he was a Supervisory Presiding Officer for Ward 1 in Asari – Toru Local Government and that he personally supervised units 11 – 23. PW2, Mr. Daibi Amachree was the constituency collation agent for Accord Party. He confirmed the fact that the collation officers were not available after the election. Exhibits P1 – P6 were tendered through him. He testified that the result sheets were given to him by his party agents. PW3, Ebeye Warmate testified that ho is a member of the Democratic Peoples Party (DPP) and the Chairman of the Local Government. He was the collation agent for hit party. He stated that the Electoral Officer could not be found at the collation centre after the election. He therefore took the results from the units back to his party and collated results from 64 out of the 100 units in the constituency. He stated that the duplicate copies of the results were still in his custody. He testified that the results in his custody were the same as Exhibits P1 – P6 shown to him and that the 1st respondent won the election. PW4, Daboikiabo Barango, was the constituency collation agent for the National Democratic Party (NDP) for Constituency 1. He stated that when the Electoral officers failed to show up after the election he collected the results from his collation agents. He stated that the result she collected was still in his possession and that up till the time he testified his constituency results had not been collated. He stated that he was not given the duplicate copy of the overall result for the election for Constituency land that he did not sign any result sheet of the said Constituency as the agent of NDP. He identified Exhibits P1-P6 as the results he collected from his collation agents. He stated that the AC won the election. PW5 Tubotamuno Dick testified that he is the Local Government Youth Leader of the AC and that he was the constituency collating agent for his party. He stated that his duty was to ensure that all the polling agents and collating agents in the 100 units of the Constituency carried out their assignment efficiently. He testified that results were neither collated nor declared in Constituency 1 by the Electoral officer. He stated that he collected Forms EC8A (i) from his agents and identified Exhibits P1 – P6 as the unit results.

He stated that from the results he collated from his party agents his party won the election. Under cross-examination by learned counsel for the appellant, he stated that the results he collected were only from his AC party agents and conceded that PW2 was not one of his agents.

The respondents in their pleadings denied most of the paragraphs of the petition save that they admitted the results announced by INEC and pleaded in paragraph 3(xviii) of the petition, They also alleged that the INEC office at Asari – Toru Local Government Area was vandalized after the election and many election materials including used and unused ballot papers, electoral forms, ink, stamp and registers were destroyed. DW1 – DW3 who testified on behalf of the appellant adopted their written statements on oath. Their statements are at pages 111 – 116 of the record, while their oral testimony is at pages 395 to 399 of the record. They all testified that the elections took place on 28th April 2009 and that they were conducted in an orderly manner. They however stated that after the election they discovered that the INEC office had been vandalised. DW3 testified that he was the Supervisory Presiding Officer for Ward 4. He stated that the elections were generally peaceful and at the conclusion the results were collated at the ward collation centre by the ward collation officer. He stated that the results were finally collated and announced at the Local Government Area office instead of at the Town Hall due to tension in the town. He stated that ward collation officers for the constituency except ward 5 were present at the Local Government Area Office.

There is a rebuttable presumption that the result of any election declared by the Electoral commission is correct and authentic. The burden lies on the person who disputes the correctness and authenticity of the result to lead rebuttal evidence. See: Omoboriowo V. Ajasin (supra): Nwobodo V. Onoh (2007) 3 EPR 180 at 227 G – H: Buhari V. Obasanjo (2005) 13 NWLR (941) 1 at 225 C – F.

It is also settled law that a party is bound by his pleading. He is not entitled to give evidence outside his pleading. Where he does so such evidence goes to no issue and is irrelevant. See: Jolayemi V. Alaoye (2004) 18 NSCQR 682, at 695 B – E: Buhari V. Obasanjo (supra) at 223 F – H: George V. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; Emegohwue V. Okadigbo (1973) 4 SC 21.In rejecting Exhibits P1 – P6 the lower Tribunal held at page 451 lines 6 -20:

“Up to this moment it still remains a mystery as to whose copies of Form EC8A, (i) were tendered through PW2 as Exhibits P1 – P6. Out of all the 100 units polling agents allegedly posted by AC to cover the election not a single one of them was called to either tender his own copies or at least identify Exhibits P1 – P6.

We are in total agreement with 1st respondent’s counsel and counsel to the 3rd – 12th respondents that absence of alleged units agents whose results were collated by PW5 is fatal to the petitioner’s case. Counsel to 1st respondent alluded to the case of Ezemba V. Ibenieme (2004) 7 SC (Part 1) p. 45 at 56. It is true as stated by counsel to 3rd – 12th respondents that no Presiding Officer of the 3rd respondent testified to show that the said Exhibits P1 – P6 emanated from the Polling units. This no doubt adds up to the devastating effect on the Petition.

Records have it that it was PW2 of Accord Party through whom Exhibits P1 – P6 were tendered 2nd obviously this act is detrimental to the credibility of Exhibits P1 – P6 herein. From the foregoing we have no option than to believe the contention of 1st respondent’s counsel that Exhibits P1 – P6 amount to hearsay evidence…”

The lower Tribunal went further to hold at page 451 line 33 to page 452 lines 1 – 10 and 22 -23 thus:

“The following Result is the product of Exhibits P1-P6 which should have been pleaded unit by unit:

AC – 37,566

PDF – 1,764

AP2 – 212

DPP – 712

NDP – 595

ANPP – 40

JP – 10

The result as it stands is highly speculated. A party relying on documents in proof of his or her case must specifically relate each of such documents to that part of his or her case in respect of which the document is being tendered. (Terab V. Lawan (1992) 3 NWLR (231) 569 at 590 referred to.)

We are therefore of the opinion that Exhibits P1 – P6 lacks evidential value.”

From the portions of the judgment reproduced above the Lower Tribunal rejected Exhibits P1 – P6 on the following grounds:

a. That the petitioner failed to call any of the 100 unit polling agents assigned by her party, AC to cover the election to tender or identify the documents.

b. That the tendering of Exhibits P1 – P6 by PW2 of Accord Party amounted to hearsay.

c. That the result pleaded by the petitioner ought to have been pleaded unit by unit and that each of Exhibits P1 – P6 should have been tied to the specific part of her case that they related to.

Learned counsel for the 1st respondent vehemently rejected the finding that Exhibits P1 – P6 were of no evidential value on the ground that in ruling on the admissibility of the documents in the course of the trial, the lower Tribunal had held that the documents were duly pleaded, that they were relevant and were produced from proper custody. He submitted that the lower Tribunal was not entitled to approbate and reprobate on the same issue. It is important to note that the admissibility of a document and the evidential value to be ascribed to it are not the same thing. The fact that a document is admissible (or admitted) in evidence is not conclusive of its probative value. See: Adefarasin V. Dayekh (2007) 11 NWLR (1044) 89 at 115 B-D; Nwankwo V. Nwankwo (1995) 5 NWLR (394) 153; Gbafe V. Gbafe & Ors. (1996) 6 SCNJ 167.

In the case of Abubakar V. Chuks (2007) 18 NWLR (1066) 386 at 402 H-B and 403 E-F. His Lordship Tobi, JSC had this to say on the distinction between admissibility of documentary evidence and the probative value to be attached thereto:

“Admissibility is a rule of evidence and it is based on relevancy … In determining the admissibility of evidence, the court will not consider how it was obtained; rather it will take into consideration whether what is admitted is relevant to the issues being tried.

The fact that a document has been admitted in evidence with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence” (Underlining mine)

I am therefore of the view that the lower Tribunal had a duty to consider the probative value of Exhibits P1-P6 notwithstanding the fact that they had been admitted in evidence as exhibits.

Learned counsel for the 1st respondent also argued that the lower Tribunal ought not to have considered the submissions of learned counsel for the appellant on the issue because he did not plead any facts to challenge Exhibits P1 – P6 and failed confine himself to the issues for determination as narrowed down by the Tribunal. I am of the view that in so far as the appellant had pleaded and relied upon the results as declared by the 3rd respondent, he had certainly joined issue with the 1st respondent on the results allegedly collated from Exhibits P1 – P6. (See paragraph 7 (xx) of the appellant/1st respondent’s reply to the petition at page 107 of the record). It is also on record that both the appellant and the 3rd – 12th respondents objected to the tendering of Exhibits P1- P6.

I have studied the 1st respondent’s final address at pages 246 to 273 of the record. The issues for determination are set out at Page 257. They read thus:

1. Whether the Petitioner’s petition is competent on the face of the facts before the Tribunal.
2. Whether the Petitioner has discharged the onus placed on her for the burden of proof to shift to the Respondents.
3. Whether the Petitioner who alleges that the election results are yet to be collated by the 3rd respondents (sic) staff can turn around to urge the Tribunal to declare her the winner.

The lower Tribunal did observe in the course of its judgment that the 1st respondent digressed from the issues it had formulated. However it stated that it would consider the 1st respondent’s submissions where relevant. This in my view is the path of substantial justice. The 1st respondent’s second issue above deals with the evidence adduced in support of the petition.

The probative value to be ascribed to Exhibits P1 – P6 was no doubt very relevant to the determination of the petition. The submission of learned counsel for the 1st respondent in this regard is therefore misconceived and accordingly discountenanced. I now return to the basis on which the lower Tribunal rejected Exhibits P1 – P6. It is instructive to note that although the 1st respondent pleaded that she was able to obtain Forms EC8A (i) from her polling agents in respect of 64 out of the 100 units of the 6 wards comprised in Asari – Toru Local Government Area, there is nowhere in the entire petition that the, said wards or units are pleaded with the scores obtained therefrom. The Forms EC8A (i) to be relied upon were not filed along with the petition. In paragraph 3 (xviii) of the petition the 1st respondent pleaded that the results announced by the 3rd respondent are imaginary and do not reflect the correct result of the election. In other words the results were falsified. It was held in the case of Awuse V. Odili (2005) 16 NWLR (952) 416 at 482 G – H that

“It is incumbent on the petitioner alleging falsification of results to plead two sets of results, one considered falsified or stigmatized and the other genuine or correct result as shown on Form EC8A. The petitioner, appellant herein, would be required to plead the unit results contained in Form EC8A, which are primary evidence of the votes cast in a ward, local government or a constituency.” (Underlining mine).

It has also been held that a complaint that a candidate did not win a majority of lawful votes cast at an election is an invitation to compare and contrast figures. In order to establish the complaint there must be a proper tabulation of the registered voters, the total number of votes cast and the votes scored by each candidate.

See: Omoboriowo V. Ajasin (supra) at 509 – 510: Anozie V. Obichere (2006) 8 NWLR (981) 140 at 155 – 156 H -A. In the instant case the 1st respondent in paragraph 3 (xxi) of her petition pleaded that the total voting strength of Asari Toru constituency 1 is 43, 308 out of which the petitioner scored 37, 566. The voters’ register was not pleaded or tendered. There was no tabulation of the registered voters, the total number of votes cast and the votes scored by each candidate. There was therefore no evidence before the lower Tribunal upon which to determine that the score of 37, 566 represented the majority of lawful votes cast. Furthermore, without pleading the wards or units in respect of which she obtained Exhibits P1-P6, there was nothing to tie the exhibits to. In the case of Terab V. Lawan (1992) 3 NWLR (231) 569 Aikawa, JCA (of blessed memory) held at page 590:

“I agree that the correct view of the law is that it party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspect of the case for a party when the party has not himself done so. The foundation of the principle is that it is an infraction of fair hearing for the court to do in the recess of its chambers what a party has not himself done in advancement of his case in open court.”

Relying on Sections 46 (2) and (3), 64 and 75 of the Electoral Act, it is the contention of the 1st respondent that Exhibits P1 – P6 are public documents and that the failure to tender them through her own party agents was not fatal to her case. Section 46 (2) and (3), 64 and 75 of the Law provide as follows:

“46.(2) Notwithstanding the requirement of subsection (1) of this section, a candidate shall not be Precluded from doing any act or thing which he has appointed a polling agent to do on his behalf under this Act.

(3) Where in this Act, and act or thing is required or authorised to be done by or in the presence of a Polling Agent, the non-attendance of the Polling Agent at the time and place appointed for the act or thing or refusal by the Polling Agent to do the act or thing shall not, if the act or thing is otherwise done properly, invalidate the act or thing.

64. (1) The Presiding Officer shall, after counting the votes at the Polling station or unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.

(2) The Form shall be signed and stamped by the Presiding Officer and counter signed by the candidate or their polling agents where available at the Polling Station.

(3) The Presiding Officer shall give to the Polling Agents and the police officer where available a copy each of the completed Forms after it has been duly signed as provided in subsection 2 of this section.

(4) The Presiding Officer shall count and announce the results at the Polling Station.

75. Every Result Form completed at the Ward, Local Government, State or National Levels in accordance with the provisions of this Act or any Guidelines issued by the Commission shall be stamped, signed and countersigned by the relevant officers and the polling agents, where available.”

I have considered the provisions of the Law reproduced above. Essentially what the law provides is that once the result forms have been completed in accordance with Section 64 (1) and (2), a candidate or his polling agent is entitled to a copy of each result form. Section 46 (supra) provides that an act required to be done in the presence of a polling agent shall not be invalidated by the absence of such polling agent once the said act is properly done. It provides further that a candidate is authorised to do any act, which he has appointed an agent to do.

In the instant case, recourse must be had to the 1st respondent’s pleading. In paragraphs 3(vi), (xvi) and (xix) (reproduced earlier) she pleaded that her party employed and deployed many agents to monitor the elections; that the said agents duly performed their assigned roles and brought back to her Forms EC8A (i) showing results in 64 out of the 100 units that make up the 6 wards in Constituency 1; that she would rely on the Forms EC8A (i) in her possession, which her agents brought back to her. In support of these paragraphs she called PW2, a member of the Accord Party and tendered Exhibits P1 – P6 through him.

PW2 testified that Exhibits P1 – P6 were given to him by his own party’s polling unit agents. It follows that they were not the Forms EC8A (i) that the 1st respondent pleaded as having been brought back to her by her AC polling unit agents. PW3 who identified Exhibits P1 – P6 was a collation agent for the DPP. PW5, who was a member of the AC, the 1st respondent’s party, testified that he was the constituency Collation Agent for his party and that all the polling units were under him. He stated that he collected Forms EC8A from his agents and identified Exhibits p1 – p6 as the collated results. It is curious that PW5 who said he collected Forms EC8A (i) from his agents did not tender the forms he collected but merely identified Exhibits P1 – P6 tendered by a member of another party. I also agree with the lower Tribunal that having testified that she had over 100 agents at the various polling units, at least one of them ought to have been called to testify and to tender or identify the Forms EC8A (i).

In the case of Ezeazodosiako V. Okeke (supra) cited by learned counsel for the 3rd – 12th respondents, collation agents testified on behalf of the appellant and tendered Forms EC8A and EC8B collected from their polling agents. This Court per Thomas, JCA at 630 B – D held thus:

“… Now in proof of these criminal acts, the appellant called 13 witnesses and tendered Exhibits P1 – P53 being Forms EC8A and EC8B results allegedly issued and given to his agents by the 2nd – 14th INEC respondents. But to my big surprise, these 13 witnesses called to testify by the appellant are not the polling agents but his collation agents are those he called. It was these collation agents who on their own volition collected the Forms EC8A and EC8B from the polling agents and then the appellant dumped them on the tribunal. This clearly shows the witnesses were merely hearsay witnesses who had no way to see and observe how the presiding or returning officers were fabricating the vote results, if any.”

See also: Hashidu v. Goje (2003) 15 NWLR (843) 352 at 386: Buhari v. Obasanjo (supra) at 315 – 316 B-A.

In the instant case it was the 1st respondent’s case that the INEC officials did not perform their duty of collating the results and that the polling unit agents brought back to her the results from the collated ballots, which she relied upon. Not one of these agents was called. I agree with the lower Tribunal that the evidence of PW3 and PW5 amounted to hearsay. I am also of the view that no probative value could be ascribed to Exhibits P1 – P6, which were not the documents pleaded by the 1st respondent, and which in any event could not be linked to the pleadings since the ward and unit results were not Pleaded.

In the circumstances, I am in complete agreement with the lower Tribunal that the 1st respondent failed to discharge the burden of proving that she scored the majority of lawful votes cast at the election. Issue no 2 must therefore be answered in the negative. This issue is accordingly resolved in favour of the appellant against the 1st respondent.

Issue 3

Whether on the facts and circumstances of this case the Honourable Court was justified in annulling the election of the Appellant.

In arguing this issue, learned counsel for the appellant referred to the finding of the lower Tribunal at Page 453 of the record thus:

“From the aforementioned, we can safely conclude that Exhibit P9 results sheets has no foundation on which to stand. It is settled that you cannot put something on nothing and expect it to stand… From the totality of what has been said and submitted on the said Exhibits P1 – P6 and Exhibit P9, we seem to be asking ourselves whether there is something to choose between the 2 sets of evidence. The answer is obviously an emphatic No.? (sic). We are of this opinion because no evidence has been led to the way and manner and even the venue where the results were eventually collated.”

Learned counsel noted that the Tribunal thereupon held the election to be inconclusive and annulled it and made an order for another election to be conducted within ninety days.

Referring to paragraph 3 (xvi), (xvii), (xviii) and (xix) of the petition and the appellant’s reply thereto, he submitted that the issue joined between the parties was whether the petitioner won the majority of lawful votes cast at the election. He stated that she sought to prove her case by relying on Exhibits P1 – P6, which the lower Tribunal found to be worthless and rejected her claims. He submitted that having held that the petitioner did not make out her case there was no basis for the Tribunal to look at the appellant’s case or that of the other respondents. He submitted that the lower Tribunal’s approach undermined the provisions of sections 136 and 137 of the Evidence Act. He relied on: Okotie V. Okone (1973) 1 NMLR 175: Dabup V. Kolo (1993) 9 NWLR (317) 254.

Learned counsel Submitted that in any event there was no issue joined between the parties as to the result obtained at the units that should constitute or that constituted Exhibit P9. He argued that a court or tribunal has no duty to raise issues for resolution not raised by the parties on their pleading. He referred to George V. Dominion Flour Mills Ltd. (supra); Emegokwue V. Okadigbo (supra): A.C.B. Ltd. V. Northern Nigeria (1967) NMLR 231. He submitted further that Exhibit P9 being a declaration made by are turning officer must be presumed to be valid and that the onus is on the party challenging its validity to establish same. He referred to: Jalingo V. Nyame (1992) 3 NWLR (231) 538. He submitted that the allegation made against the returning officer amounted to the allegation of the commission of a criminal offence, which must be proved beyond reasonable doubt. He contended that no effort was made at the trial to show that there was an investigation by the Police or the outcome.

Learned counsel submitted that there was no claim before the Tribunal for the nullification of the election and that a court is not entitled to give to a party what he has not prayed for. He relied on: Hali V. Atiku (1999) 5 NWLR (602) 186 at 194 F. He submitted finally that the issue of nullification of the election was a new issue raised suo motu by the Tribunal without affording the parties an opportunity to address it on it. He submitted that the parties’ right to fair hearing was compromised. He relied on: Korede V. Adedokun (2001) 15 NWLR (736) 483; Nwamuo V. Okoro (2006) 11 NWLR (990) 40. He submitted that this is a proper case for the interference of this Court in the decision of the lower Tribunal.

In response to this issue, learned counsel for the 1st respondent submitted that the appellant failed to testify or tender any document to challenge the averment in paragraph 3 (xviii) that the results declared by the 3rd respondent were imaginary and fake. He submitted that the appellant did not tender his own copies of Forms EC8A (i) or state their whereabouts. He argued that the onus placed on the 1st respondent was minimal and that it was duly discharged having shown that Exhibit P9 had no foundation.

He relied on: Bua V. Dauda (2003) FWLR (172) 1892 at 1904 F-G. He submitted that the presumption that Exhibit P9 is genuine is rebuttable. He cited: Omoboriowo V. Ajasin (supra). He submitted that Exhibit P9 could not stand alone that it must have support, which could not be found anywhere in this case. He submitted that even where there is an allegation of commission of a crime, the requirement of proof beyond reasonable doubt does not mean proof beyond an iota of a doubt. He relied on: Olabode V. The State (2007) All FWLR (389) 1301.

It was argued on behalf of the 3rd – 12th respondents that nullification of the election conducted on 28th April 2007 was not one of the issues formulated by the parties or the lower Tribunal for determination. He submitted that the decision based on issues not raised by the parties would not be allowed to stand. He relied on Overseas Construction Co. (Nig). Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 12 SC 158 at 164: Idika V. Esiri (1988) 2 NWLR (78) 563 at 575 – 576 H – A.

He submitted that there is a presumption or regularity and genuineness in favour of official results declared by INEC and that the onus is on the person challenging the genuineness to rebut the presumption. He relied on: Ezeazodosiako V. Okeke (supra) at 615 ratios 2. He observed that in this case the result declared by the 3rd respondent was as pleaded by the 1st respondent in paragraph 3 (xviii) of her petition and that it is this result that she is challenging. He argued that since the lower Tribunal had found that Exhibits P1 – P6 lacked evidential value, the result declared by the 3rd respondent had not been disproved. He submitted that in the circumstances the lower Tribunal erred when it proceeded to nullify the election. He submitted that the decision should not be allowed to stand.

I have given careful consideration to the submissions of learned counsel. The issue in contention here is whether the lower Tribunal, having rejected the 1st respondent’s evidence in support of her claim that she scored the highest number of lawful votes cast at the election, was entitled to go further and consider the case of the respondents and nullify the election.

Earlier in this judgment I had reviewed the law and decided authorities on the issue of the burden of proof and the bindingness of pleadings. In the case of: Awuse V. Odili (supra) at 500 F, this court held per Ogunbiyi, JCA that the consideration of the respondents’ case does not arise until the petitioner has made out a case; that the petitioner must succeed on the strength of her case and not on the weakness of the defence. A respondent has no duty to prove anything if the petitioner has not made out a prima facie case. See Jolayemi V. Alaoye (supra) at 703.

In the instant case the ground for the petition was that the Appellant/1st respondent was not duly elected by a majority of lawful votes cast at the election. The relief sought from the lower Tribunal as contained in paragraph 4 thereof was that it be determined that the 1st respondent was not duly returned and that the petitoner/1st respondent was elected and ought to have been returned. As submitted by learned counsel for the appellant and the 3rd – 12th respondents, the burden was on the petitioner to establish the ground of her petition. In resolving issue no. 2 earlier, I held that the lower Tribunal rightly found that the 1st respondent failed to discharge the onus on her. It follows that she, had failed to rebut presumption in favour of the authenticity of the results declared by the 3rd respondent returning the appellant as the winner of the election. Having failed to make out her case as pleaded; the onus did not shift to the respondents. The petitioner did not seek any alternative reliefs. She did not plead or contend that the election was inconclusive. None of the parties raised the issue of annulment of the election. A court of law is not a charitable institution. It is hot competent to award a relief not pleaded or claimed by either party.

See Boni Haruna v. Modibbo (2006) 2 EPR 664 at 722. The proper order the lower Tribunal ought to have made in the circumstances was one dismissing the petition. See: Ihute v. INEC This issue is accordingly resolved in favour of the appellant and against the 1st respondent.

The judgment of the Governorship and Legislative House Election Tribunal, Holden at Port Harcourt Rivers State delivered on 1st February 2008 is hereby set aside. The 1st respondent’s petition no. EPT/SA/43/2007 is hereby dismissed. The return of the Appellant as the duly elected candidate for the House of Assembly Seat for Asari Toru Local Government Constituency 1 is hereby affirmed.

Costs of N30, 000.00 are awarded in favour of the appellant against the 1st respondent.

CROSS – APPEAL

The cross-appeal filed by the 1st respondent (now cross appellant) is against that part of the judgment of the lower Tribunal delivered on 1st February 2008 wherein it held that the cross – appellant did not prove that she won the election of 28/4/07. The notice of appeal at page 463 of the record contains 10 grounds of appeal. The facts and circumstances leading to the cross appeal are the same as those in respect of the main appeal. The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this Court. In the cross – appellant’s brief filed on 29/10/08, three issues were formulated for determination out of the ten grounds of appeal. The appellant/ 1st cross respondent in his reply brief filed on 20/3/08 also formulated three issues for determination. In their reply brief deemed filed on 9/10/08, the 3rd – 12th cross respondents adopted the issues formulated by the cross appellant. The cross appellant filed a reply to the 1st cross respondent’s brief on 27/3/08. She also filed a document titled “cross appellant’s brief of argument in response to 3rd – 12th respondents’ brief of argument”.

When we heard this appeal on 18/11/08 learned counsel adopted their respective briefs and urged their respective positions on the court. Learned counsel for the 3rd – 12th respondents raised the issue of the competence of the document filed on 16/10/08 by the cross appellant. I had addressed the issue of the failure of the 1st respondent/cross appellant to abide by the description ascribed to processes by the rules of this court and the Practice Directions 2007. I am of the view that where a document is not properly headed but the contents show that it is a process known to our Rules or the Practice Directions, the court would, in the interest of doing substantial justice, not discountenance it. Parties are however warned to adhere strictly to the rules. I have examined the document in question and find that it is indeed a reply brief although wrongly described.

The cross appellant’s issues for determinations are as follows:

a. Whether Exhibits P1 – P6 amount to hearsay evidence and/ or are speculative and lacking in evidential value in the circumstances of this case.

b. Whether the nullification of the entire election and making the order for bye – election suo motu was the only appropriate order that could be made by the Tribunal to meet the requirements of the Electoral Act given the surrounding circumstances of the case.

c. Whether it was right and proper to consider the addresses of 1st respondent on the one hand and 3rd – 12th respondents on the other when both processes amount to complete negation of established legal principles prohibiting recourse to them.

The issues formulated by the cross respondent are:

a. Whether on the facts and circumstances of this case, the Tribunal was right in its conclusion on Exhibits P1 – P6 and that the Petitioner did not prove her case.

b. Whether on the facts and circumstances of this case the order of the Tribunal nullifying the election was justified.

c. Whether the Tribunal was right in utilising the written addresses of the respondents.

Although the issues formulated by both parties are similar, the issues formulated by the cross respondent appear to be more concise.

It is pertinent to note at this stage that issues 1 and 2 have been resolved in the course of determining the main appeal. Issue 1 was answered in the affirmative while issue 2 was answered in the negative.

I am of the view that the resolution of these two issues particularly issue 1, has effectively disposed of the cross appeal. Having resolved the main appeal in favour of the appellant/cross respondent, I find no merit in the cross-appeal. It fails and is accordingly dismissed. I make no order for costs in the cross appeal.

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Other Citations: (2008)LCN/3000(CA)