Hon. Taye Adenowo Oyefolu V. Hon. Abayomi Sadiq & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
On the 14th day of April, 2007 elections were held throughout Nigeria into the House of Assembly Seats of the 36 States of the Federation. 9 candidates representing various Political Parties contested the House of Assembly sit in Lagos State for Ojo Constituency II. 2nd Respondent, Independent National Electoral Commission has the statutory responsibility for the conduct of the election. At the end of the election, the 1st Respondent, Hon. Abayomi Sadiq who was sponsored by the Action Congress was declared the winner with 7,618 votes. The appellant who contested the election on the platform of the Peoples Democratic Party (PDP) came second with 7,609 votes. The election result was declared on 14th day of April, 2007. The appellant was not satisfied with the result declared by the 2nd Respondent. He presented a Petition dated 14th day of April, 2007 before the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Lagos.
The Petitioner’s ground for petition as stated in paragraph 4 of his election petition, dated 14th April, 2007 read as follows:-
“GROUNDS FOR THE PETITION
(i) The first Respondent was not duly elected by the majority of valid or lawful votes cast at the election.
(ii) That the purported election and return of the 1st Respondent as the member of the House of Assembly, Ojo Constituency II, of Lagos State is illegal, null and void on the ground of corrupt and fraudulent practices in certain polling stations within the constituency II of Ojo Local State Constituency, Lagos State.”
The relief sought by the petitioner in paragraph 21 of the petition also read as follows:-
“WHEREFORE your petitioner prays that the petitioner be declared validly elected, the petitioner having scored the highest number of valid votes cast at the election and satisfied the requirements of the 1999 constitution and the Electoral Act, 2006.”
The first respondent, on the service of the petition on him, by substituted means, filed a reply on the 28th June, 2007 (see page 93 to 103 of the record) and denied the allegation of facts contained in the petition, Similarly, in response to the petition the 2nd – 10th Respondents filed their joint reply dated 15th June, 2007 and filed on the 18th day of June, 2007 (see pages 75- 77 of the record) and denied some of the allegation of facts contained in the petition.
Upon the Report of the Pre-Hearing session and the formulation of issues by both parties, the petition was accordingly set down for full trial on the 2nd day of August, 2007. During the trial, the petitioner testified in support of the petition and called three witnesses. While the 1st Respondent testified on his own behalf but did not call any other witness. The 2nd – 10th respondents also called one witness. The tribunal, after taking addresses from the respective counsel, in a reserved and considered judgment, dismissed the petition. The Tribunal on page 269 of the record had this to say:-
“In the circumstances we find that the allegation of over-voting in ward J. code 10, unit 004, Idoluwo polling station is not established by cogent and credible evidence. We further find that the scores to the Results in the four polling stations challenged by the Petitioner were not marred with fraud, fundamental irregularities and corrupt practices as contended. The Election to the House of Assembly for Ojo Constituency II, held in Ojo Local government Area of Lagos State on 14th day of April, 2007 and the results emanating with the Electoral Act, 2006. The Petition therefore lacks merit and is hereby dismissed.”
The petitioner appealed to this court on a notice of appeal dated 25th October, 2007 and filed on 26/10/07 containing three grounds of appeal including the omnibus ground.
Briefs of argument were filed and exchanged at the appellant’s brief, first respondent’s brief as well as second – tenth respondents brief of argument which was deemed filed on 9/01/08.
At the hearing of the appeal, briefs of arguments were adopted and relied upon by all counsel, Appellant formulated two issues for the determination of this appeal as follows:-
2.01 Whether in the light of the state of pleadings and evidence adduced at the lower Tribunal, the Appellant has not proved the allegation of over – voting in Idoluwo ward J, Code 10, unit 004, Ojo Local government Area of Lagos State as to have necessitated the cancellation of the result in that ward. Grounds 1 and 2.
2.02 Whether the lower Tribunal properly evaluated the evidence before it in dismissing the Appellant’s Petition, Ground 3.
1st Respondent distilled one issue from the three grounds of appeal filed by appellant. The sole issue formulated is that having regard to the evidence adduced before the lower Tribunal, whether the Petitioner/Appellant discharged the burden of proving the allegation that there was over-voting at Idoluwo, ward J, code 10, unit 004. Grounds 1, 2 and 3.
2nd – 10th respondents also formulated only one issue for determination of this appeal as follows:-
- Whether on the basis of the evidence adduced by parties the lower Tribunal was right to have held that the Petitioner/Appellant failed to prove his allegation of over-voting at Idoluwo ward J, Code 10 Unit 004, Ojo Local Government Area of Lagos State.
Grounds 1 and 2.
After a close perusal and reflection on the three sets of issues framed by counsel in the respective briefs of the parties, I am of the humble view that the two issues formulated by the appellant are adequate and germane for the determination of the appeal. The issues formulated by 1st and 2nd – 10th respondents are identical with the ones formulated by the appellant.
Similarly, the two issues can conveniently be resolved together and that is what I intend to do.
I will briefly summarize the arguments canvassed in appellant’s brief in respect of issues 1 and 2 as well as the response of the respondents argued in their respective briefs. Appellant’s counsel contended that having regard to the state of pleadings and evidence adduced at the lower Tribunal appellant had proved the allegation of over-voting in Idoluwo ward J, Code 10, Unit 004, Ojo Local Government Area of Lagos State which should have necessitated the cancellation of the result therefrom as recorded in Exhibit ‘B’ i.e. Form EC8A (1) serial No. 056932. Learned counsel referred to the written statement on oath of PW1 (Appellant), PW2, PW3 and PW4. In the light of the written statement on oath and paragraphs 5, 6, 7 and 8 of Appellant’s petition, the evidence adduced showed that the number of voters in Ward J, Code 10, Unit 004 Idoluwo polling station is far more than the officially registered voters. Exhibit ‘A’ and ‘B’ cannot be reconciled as such a clear cut case of over-voting has been established. See Awuse V. Odili (2005) 16 NWLR (Pt 952) 416 at 490 – 491; Haruna V. Modibbo (2004 16 NWLR (Pt 900) 87 at 543 and Onoyon V. Egari (1999) 5 NWLR (Pt 603) 416 at 425.
Learned counsel further contended that the lower Tribunal in its decision as regards the issue of over-voting in Ward J, Code 10, Unit 004 (open space within Ojota) Idoluwo polling station made serious error in law thereby occasioning miscarriage of justice in jettisoning the Certified true copy of the voter’s register (Exhibit ‘A’) and placing reliance on the polling unit data of male and female for Ojo Local government which was admitted in evidence through DW2 as Exhibits ‘M’ and ‘N’ (see page 264 of the record). It was also his view that paragraph 15(e) of the 3rd schedule to the 1999 constitution and section 10(1) and 11(4) of the Electoral Act, 2006, recognizes only the register of voters for the purpose of conducting election in Nigeria. As such Exhibit ‘A’ the electronic voters’ register is the only document to be relied upon by the Tribunal and not Exhibit ‘M’ and ‘N’. It was further argued that Exhibit ‘M’ cannot qualify as public document as same was not signed and certified. Similarly Exhibit “N” was made on 4/7/2007 two months after the commencement of the petition at the lower Tribunal. The two documents Exhibit ‘M’ and ‘N’ are caught up by the provision of/he Evidence Act and therefore not admissible. Exhibit ‘N’ is also caught up by section 91(1) (3) of the Evidence Act. See Araka V. Egbue (2003) 17 NWLR (PI 848) 1 at 18 – 20.
Furthermore, appellant’s counsel contended that the lower Tribunal did not properly evaluate the evidence before dismissing the petition. Appellant’s counsel referred to the portion of the judgment of the lower Tribunal appearing at page 264 of the record and contended that the findings and or decision is perverse and has occasioned a miscarriage of justice. The lower Tribunal wrongly applied well accepted principles of law to the evaluation of evidence bordering on an election petition case of this nature. It was further submitted that Exhibits ‘A’, ‘B’, ‘L1’ and ‘L2’ were not properly evaluated by the trial Tribunal and this has occasioned a miscarriage of justice. See John M. Buba V. The State (1992) 1 NWLR (Pt 215) 1 at 16. According to the appellant the finding that Exhibit ‘M’ and ‘N’ and the evidence of Dw1 and Dw2 established that a total of 122 voters were registered in the manual voters’ register (Exhibit ‘M’) out of whom 109 voted in the said polling station on 14th day of April, 2007 is perverse, and has occasioned a miscarriage of justice. It was further contended that Exhibits ‘M’ and ‘N’ were tendered through DW2 and wrongly admitted in evidence because same were not pleaded in 1st respondent’s reply to the petition. Exhibit ‘M’ and ‘N’ ought to have been expunged. It is trite that parties are bound by their pleadings and evidence led on facts not pleaded goes to no issue. Learned counsel urged us to expunge all unpleaded facts, exhibits adduced and tendered by the Respondents. See Ojo V. Esohe (1999) 5 NWLR (Pt. 603) 444 at 452; Yusuf V. Adegoke (2007) 11 NWLR (Pt. 1045)332 at 353 – 382, Yusuf V. Obasanjo (2005) 18 NWLR (Pt. 956) 96 at 183 and Manfag (Nig) Ltd. V. MS Oil Ltd. (2007) 14 MWLR (Pt. 1053) 109 at 139-140. Learned counsel also relied on Ohodile V. Egwatu (2006) 1 NWLR (Pt 961) 421 at 436 and urged us to interfere with the decision of the lower Tribunal.
In response 1st respondent’s counsel contended that an appellate court will not interfere with the finding of facts by the trial court unless such finding of facts is found to be perverse or based on a wrong principle of law or not supported by evidence. See Ugochukwu V. Unipetrol (Nig) Plc. (2002) 7 NWLR (Pt 7650) 1 at 16; Ezesimho V. Onuzurike (2002) 15 NWLR (Pt 791) 466 at 908 and NBPIC V. Adeton Oladeji Nig. Ltd. (2002) 15 NWLR (pt 791) 589 at 623. Learned counsel referred to page 264 of the record of appeal and submitted that the Tribunal arrived at its decision based on a due consideration of the evidence adduced before it. 1st respondent’s counsel also referred to the testimony of DW2 where he noted that 122 people registered as voters at Unit 4, Idoluwo polling Unit and not six people as contended by the petitioner. Contrary to the unsubstantiated allegation of counsel to the petitioner/appellant Exhibit ‘N’ is the Certified copy of the manual Voters’ Register otherwise referred to as INEC polling information Data sheet obtained by the petitioner and tendered by the petitioner’s counsel through DW2.
On the status of Exhibit ‘M’ and ‘N’ learned counsel contended that one who complains of the propriety or otherwise of the evaluation of evidence has not queried their validity or admissibility. There is no ground of appeal to support expunging of Exhibit ‘M’. What the counsel to the appellant seeks to challenge in Exhibit ‘M’ is the Ruling of the lower Tribunal as regards the objection rose to its admissibility. This ought to have been subject of an interlocutory appeal or at best a ground of appeal on its own rather than being raised as an obscure particular to an unrelated ground of appeal.
On whether Exhibit ‘M’ was pleaded learned counsel submitted that the argument of appellant’s counsel that it was not pleaded is unfounded and has no basis in law and in fact. Learned counsel referred to paragraph 5 of 1st respondent’s reply at page 94 of the record and 169 to show that it was pleaded and in response to the notice to produce 2nd and 6th respondents produced Exhibit ‘M’ to the Tribunal.
Learned counsel submitted that based on the evidence adduced before the Tribunal, the Tribunal was right in holding that the Petitioner/Appellant did not convincingly discharge the burden of proving the allegation that there was over-voting at Idoluwo Ward J, code 10, Unit 004.
On the other hand 2nd-10th respondent’s counsel contended that the testimonies of PW1, PW2, PW3 and PW4 lacked probative value in proof of the assertion that there was over-voting and that only 6 people registered and that Exhibits ‘L1’ and ‘L2’ cannot be relied upon. Similarly, Exhibit ‘A’ is not credible evidence and does not and cannot represent the true position of the total number of registered voters at unit 004 taking into consideration the entire circumstance. See Agbi V. Ogbeh (2006)11 NWLR (Pt.990) 65 at 87 and 88. The evidence adduced could not rebut the authenticity of Exhibit ‘B’ which show that 109 people voted at the said election in Unit 004. There is a legal presumption of the authenticity of Exhibit ‘B’ which can only be rebutted by credible evidence. See Ogi V. Ekweremadu (2006) 1 NWLR (Pt. 961) 255 at 262.
It was also contended that the evidence of DW1 and DW2 regarding authenticity of Exhibit ‘M’ and ‘N’ were not challenged, contradicted or shaken under cross-examination and thus the Tribunal was right to have accepted and acted on same as the truth. See Nwanko V. Abazie (2003) 12 NWLR (Pt 834) 381 at 387 and American Cynamid V. Vitality Pharm (1991) 2 SC page 61.
In response to the submission of appellant’s counsel that paragraph 15(e) of the 3rd schedule to the (1999) constitution and section 10(1) of the Electoral Act 2006 only recognizes Electronic Register of voters, he contended that the statutes does not make any distinction between Electronic or manual register of voters as what is specified is ‘register of voters’ simpliciter, prepare, kept, revised and maintained by the 2nd respondent. Furthermore, 2nd – 10th respondent’s counsel submitted that Exhibit ‘M’ and ‘N’ and the fact of 122 voters were registered was pleaded in paragraph 3 and 4 of their reply at page 76 of the record. What is required to be pleaded is fact and not evidence. See Adike V. Oboareri (2002) 4 NWLR (Pt. 758) 557 at 582. 1st respondent also pleaded – Exhibit ‘M’ and ‘N’ in paragraph 5 of his reply and 2nd – 6th respondents were given notice to produce “the correct voter’s register and/or the Data Capturing Device” used in the election for the particular unit (refer to page 94 of the record). Exhibit ‘N’ is a certified true copy of Exhibit ‘M’ which was tendered by Petitioner/Appellant through DW2 and was admitted by the Tribunal. It is too late for the appellant to now attack Exhibit ‘M’ and ‘N’ and seek to dissociate himself from same. See Onwudinjo V. Dimobi (2006) 1 NWLR (Pt 961) 318 at 338.
It was further submitted that section 54 of the Electoral Act 2006 implies that the register of voters is a key factor in deciding whether or not the incident of over-voting occurred. At page 264 of the record the Tribunal properly evaluated Exhibits’ A’, ‘B’, ‘L1’ ‘L2’, ‘M’ and ‘N’ and the entire circumstances that arrived at a decision that 122 people registered at Unit 004 by virtue of Exhibits ‘M’ and ‘N’. Appeal court will not interfere with the judgment of trial court unless it is perverse. See Ogboru V. Ibori (2006) 17 NWLR (Pt 1009) 542; Adimora V. Ajufo & Ors (1988) 3 NWLR (Pt 80) 1 and Sunday Baridam V. The State (1994) 1 NWLR (Pt. 320) 250 at 260. Where a trial court properly evaluates the evidence and appraises the fact as in the instant case, an appellate court will not interfere with the findings and judgment. See Fagbenro V. Arobadi (2006) 7 NWLR (Pt 978) 172 at 184.
Before I proceed to resolve the two issues formulated by the appellant, I wish to point out that the petition contested before the Tribunal involved a number of polling stations within constituency II of Ojo Local Government Area of Lagos State. But this appeal is only confined to one polling station, that is Idoluwo Ward J, Code 10, Unit 004 where appellant alleged over-voting took place.
The summary of the complaint of the appellant as it relates to the two issues distilled for the determination of this appeal is that the Tribunal made a serious error in arriving at the decision that the appellant has not convincingly discharged the burden of proving the allegation of over-voting at Idoluwo Ward J, Code 10, Unit 004 and that Tribunal also failed to properly evaluate and appraise the evidence adduced before it. As earlier stated I will resolve issues 1 and 2 together because they are related.
It has to be borne in mind that there is a presumption though rebuttable that judgment of the court of trial appealed against is right until the contrary is shown. Therefore in this court the petitioner, now appellant has the onus to show the contrary. See Amieka Mclifowu V. Egbuji (1982) 9 SC 145 at 165.
Appellant in proof of his allegation of over-voting that only 6 (six) people registered at Idoluwo Ward J, Code 10, Unit 004, while 109 votes were recorded testified as PW1 and called three other witnesses who also testified as PW2, PW3 and PW4 respectively. The documents tendered by appellant are: Exhibit ‘A’ Certified true copy of Electronic register of voters for Unit 004 containing six names of registered voters; Exhibits ‘L1’ and ‘L2’ negative and photographs of the register of voters (Exhibit ‘A’) and Exhibit ‘B’ the statement of result of Poll of the Unit, Form EC8A (1) with Serial No 056932 (see pages 149 -163 of the record).
On the part of the Respondents DW1 (1st Respondent) testified. DW2 also testified on behalf of the 2nd – 10th respondents and a Bundle of documents titled Independent National Electoral Commission Ojo Local Government Polling Unit Data of male and female (total) was tendered through him and admitted as Exhibit ‘M’. INEC Data Ojo Local Government Polling Unit Data of male and female (total) Certified true copy of Exhibit ‘M’ dated 4/7/2007 was tendered under cross-examination by appellant’s counsel and same admitted as Exhibit ‘N’. It is evident from pages 254 – 266 of the record that the Tribunal reviewed the evidence, evaluated and appraised same before arriving at the conclusion that appellant has not convincingly discharged the burden of proving the allegation of over-voting in Idoluwo Ward J, Code 10, and Unit 004.
Having regard to the available evidence on record the question now is can it be said that the Tribunal did not properly evaluate the evidence adduced before it? Before I resolve this question I find it necessary to reproduce hereunder the evaluation made by the Tribunal after stating the evidence adduced before it and the submission of counsel. The Tribunal at page 264 of the record stated thus:-
“By virtue of section 54 of the Electoral Act, 2006 over-voting can only occur in the circumstance where the total number of votes cast in a Polling Station exceeds the total number of registered voters for the polling booth. See Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416 at 490 – 491. The burden is on him who asserts to adduce evidence in proof of that asserted.
In the instant case the burden of proof is on the Petitioner to prove that there was over-voting in the Idoluwo Polling Station. In proof of his contention that there was over-voting, the petitioner tendered Exhibit ‘A’ which is a certified true copy of a Register of Voters produced by INEC (2nd Respondent) containing the Registration of only six voters and tendered through PW1 (Petitioner). It is the contention of the Petitioner that only six people were registered in the said Ward J, Code 10, Unit 004 and that he commissioned PW4 who photographed the Voters Register (Exhibit A) during the display of the Voters Register. The said photographs and its negative are before the Tribunal as Exhibit ‘L1’ and ‘L2’ respectively. The Respondents on the other hand contend that during the Registration exercise only 6 voters in the ward were captured by the Electronic Machine and the rest of the registration was done manually and same was used at the 14th April, 2007 election. The 2nd witness for the Respondents (DW2) tendered Exhibit ‘M’ and ‘N’. Exhibit ‘M’ is the Polling Unit Data of Male and Female for Ojo Local Government wherein a total of 122 voters comprising 67 males and 55 females were registered at Idoluwo Code 10 Unit 004 while Exhibit ‘N’ is the photocopy of same. By Exhibits ‘M’ and ‘N’ and the evidence of DW1 and DW2 we are satisfied that a total of 122 voters were registered in the Manual Voters Register
(Exhibit M) out of whom 109 voted in the said polling station on 14th day of April, 2007.”
I would now proceed to examine the various points raised by appellant in his brief of argument in order to determine whether the evaluation was properly done or not. Appellant, in his brief of argument challenged the validity or admissibility of Exhibit ‘M’ and ‘N’ heavily relied upon by the Tribunal in coming to the conclusion that 122 voters registered in Idoluwo Ward J, Code 10, Unit 004. Exhibit ‘M’ is a Unit Data sheet manual in form containing total number of male and female voters registered to vote in Ojo Local Government which includes Ward J, Code 10, Unit 004 in Idoluwo polling station, The said document was tendered through DW2 and admitted in evidence after objection raised by appellant was overruled by the Tribunal. Exhibit ‘M’ was admitted on the ground that it is a primary evidence, public document, pleaded and was part of the documents forwarded to the Tribunal by INEC (2nd respondent) in compliance with notice to produce, served on it. As rightly submitted by 1st respondent’s counsel none of the grounds of appeal filed by appellant challenged the validity or admissibility of Exhibit ‘M’. Mere complaint of the propriety or otherwise of the evaluation of evidence has not queried the validity or admissibility of the document.
Contrary to the submission of appellant’s counsel, Exhibit ‘M’ was pleaded in both 1st and 2nd – 10th respondents reply to the petition. See in particular paragraph 5 of 1st respondent’s reply to the petition at page 94 of the record. In paragraph 5, 1st respondent averred as follows:-
“5…
The 1st respondent shall at the hearing of this petition rely on the correct voters’ Register and/or the Data Capturing Device used by the 2nd and 6th respondents in conducting the election in this polling booth and hereby given the 2nd and 6th respondents notice to produce same.”
In response the 2nd and 6th respondent produced to the Tribunal Exhibit ‘M’ vide letter dated 12/07/2007 (see page 169 of the record). It is manifestly clear from the record that Exhibit ‘M’ was pleaded, placed before the Tribunal and forwarded to all the parties, tendered and admitted in evidence and so no party was taken by surprise.
It is a basic principle of pleadings that only material facts and not evidence in proof of such fact are permitted to be pleaded. See Hashidu V. Goje (2003) 15 NWLR (Pt. 843) 352 at 383 and Adike V. Oboareri (2002) 4 NWLR (Pt. 758) 537 at 582.
Exhibit ‘M’ can only be discountenanced if there are no facts pleaded in support of same. The argument of appellant’s counsel that Exhibit ‘M’ is a worthless document is baseless and unfounded.
Similarly, appellant’s counsel argued that Exhibit ‘N’ Certified true copy of Exhibit ‘M’ ought not to have been relied upon by the Tribunal because same was made when the proceedings before the Tribunal was pending. It is therefore inadmissible by virtue of section 91 (1) (3) of the Evidence Act, Cap E14 Laws of the Federation of Nigeria, 2004. For emphasis section 91 (1) (3) is reproduced hereunder as follows:-
“(1) (3). Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” The record shows that Exhibit ‘N’ was certified by INEC on 4/07/2007 and it was tendered through DW2 during cross-examination by appellant’s counsel. As at the time Exhibit ‘N’ was certified, the original copy Exhibit ‘M’ was already before the Tribunal. It has to be noted that Exhibit ‘N’ was not prepared on 4/07/2007 but it was only certified as true copy of Exhibit ‘M’. The document was not tendered by either the 1st or the 2nd-10th respondents. Having regard to the circumstances I hold that section 91 (1) (3) is inapplicable. It is amazing that the same counsel who introduced the document (Exhibit ‘N’) in evidence is now complaining that the said document is inadmissible (sec page 170 of the record). I agree with the submission of 2nd- 10th respondent’s counsel that it is too late for appellant to dissociate himself from the content of Exhibit ‘N’ which he tendered in evidence. In Onwudinjo V. Dimobi (2006) 1 NWLR (Pt 961) 318 at 338 this court held that:-
“Parties such as the appellant who has tendered a document in a court of law and is admitted as exhibits at the end of the litigation either sail joyfully with it in a boat of victory or sink sorrow-fully with it in boat of defeat. He cannot be a beneficiary of both at the same time.”
Another point argued by appellant in his brief is that Exhibit’ A’ is the only register of voters recognized by the statutes to be used during the election. Exhibit ‘A’ is the certified true copy of the Electronic Voters’ register for Idoluwo Ward J, Code 10, and Unit 004. This document was given to appellant by 2nd respondent in compliance with order of Tribunal dated 5/07/07 to produce same (see page 108A of the record). The relevant provisions relied upon are: paragraph 15 (e) of the 3rd schedule to the 1999 constitution; section 10 (1) and 11 (4) of the Electoral Act 2006. I will therefore for the purpose of emphasis set out the provisions referred to supra.
They read:
Paragraph” 15 the commission shall have power to –
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) Arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this constitution.”
Section 10 (1) Electoral Act reads:-
“10 (1) The commission shall compile, maintain and up date on a continuous basis, a National Register of Votes, in this Act referred to as the Register of Voters, which shall include the names of all persons entitled to vote in any Federal, State, local Government or Area Council Election.”
Section 11 (4) also reads:-
“(11) (4). When a general election is notified by the commission pursuant to section 31 of this Act, the current official register of voters certified by the commission in accordance with the provision of this Act shall be the official voters’ register for those elections and in the case of every by-election conducted under this Act, the official voters’ register for use at such elections shall be the existing current register relating to the senatorial district or the constituency concerned.”
It is very clear from the provisions reproduced supra that the statutes only referred to ‘register of voters’ simpliciter. There is no distinction between Electronic register of voters and manual register of voters. I have also perused the entire provisions of the Electoral Act but I have not seen any provision that provides for such distinction. DW2 stated in his testimony before the Tribunal that both manual and Electronic register of voters were used during the election. There is no contrary evidence to show that only electronic register of voters was used during the election. As it is I agree with the submission of 2nd – 10th respondent’s counsel that the evidence adduced by DW2 remained unchallenged. Moreover, by the rule of interpretation the court is enjoined not to give a statute a construction that would defeat the very intention and purpose of the law maker. In General Mohammed Buhari & Anor V. Alhaji M. Dikko & Anor 14 NSCQR (Pt. 11) 1114 and 1161 the apex court held per Niki Tobi JSC, as follows:-
“It is settled principle of interpretation of statutes that the court would ascertain the intention and purpose of the law makers and give effect to same. The court should not give a statute a construction that would defeat the very purpose of the law maker.”
It is to be noted that 2nd respondent is the statutory body charged with the responsibility of registering persons qualified to vote. In absence of any express provision excluding manual register the explanation offered by DW2 should be accepted as the true position of things. The narrow interpretation offered by appellant’s counsel if accepted would certainly defeat the intention and purpose of the law makers.
The Tribunal while evaluating the evidence adduced before it regarded the testimonies of PW1 – PW4 as unreliable due to the contradictions found in their testimonies. For instance PW3 in his testimony claimed to be agent of PDP but the statement of result of poll showed one A. Funmilola signed as agent for PDP and not PW3. He (PW3) also admitted that he was not at the polling Unit 004 when votes were counted and he was not in a position to say the number of people that voted at Unit 004 because as at the time of voting he was at Unit 006 to cast his vote. Tribunal also observed that no witness came forward to testify to the effect that those who voted were not registered. The Tribunal did not accept ‘Exhibit’ ‘A’ the certified true copy of the Electronic register of voters because it did not represent the correct number of voters that registered in Idoluwo Ward J, Code 10, and Unit 004. It is also evident that the Tribunal accepted and relied on Exhibit ‘M’ to show that 122 people registered in Unit 004 and not 6 people as contained in Exhibit’ A’. DW2 offered an explanation that the Electronic machine malfunctioned so it could only print out six names as a result both Electronic and manual register of voters were used during the election. The evidence of DW1 and DW2 regarding the authenticity of Exhibit ‘M’ and ‘N’ were not challenged, contradicted or shaken under cross-examination as such the Tribunal was right to have acted upon same as the truth. See Nwanko V. Abazie (2003) 12 NWLR (Pt. 834) 381 at 387 where the Court of Appeal held as follows:-
“…The court is entitled to believe and act on evidence that is uncontroverted or not effectively challenged during cross-examination. The piece of evidence was not controverted or effectively challenged on cross-examination. The trial court was therefore, right to have believed and acted on the evidence as it did.”
Also in the case of American Cynamid V. Vitality Pharm (1991) 2SC 61 the apex court had this do say:-
“Where evidence or a witness has not been challenged, contradicted or shaken under cross-examination and his evidence is not inadmissible in law and the evidence must be accepted as the correct version of what he says.”
It is also worthy of note that there is a legal presumption of the authenticity of Exhibit ‘B’ Form EC8A (1) the statement of result of poll which can only be rebutted by credible evidence. See Ogi V. Ekweremadu (2006) 1 NWLR (Pt 961) 255 at 262 where it was stated as follows:-
“Where the petitioner fails to rebut the presumption in favour of the return, his petition must fail, in the instant case, the return of the 1st respondent raised in favour of all the respondents the presumption of regularity and correctness of the results so declared. It was therefore not incumbent on the Respondents to tender evidence in proof of the due return of the 1st Respondent in the circumstance.”
See also Buhari V. Obasanjo (2005) 2 NWLR (Pt.910) 241. Appellant did not rebut the presumption as no credible evidence was led to show that Exhibit ‘B’ is not authentic.While evaluating the evidence adduced the Tribunal who had the advantage of hearing and seeing the witnesses when giving evidence had the discretion to accept or reject both oral and documentary evidence adduced before it.
I am of the firm view that the Tribunal rightly accepted Exhibit ‘M’ and the testimony of DW1 and DW2 and made a finding that appellant failed to prove over-voting in Idoluwo Ward J, Code 10, and Unit 004. If Exhibit ‘M’ and ‘B’ the result of poll are compared, it is evident that no over-voting took place on the Election Day in Unit 004. Exhibit ‘M’ showed 122 people registered as voters and 109 people voted as per Exhibit ‘B’.By virtue of section 54 (2) of the Electoral Act 2006 over-voting can only arise where the votes cast at an election in any constituency or polling station exceeds the number of registered voters in that constituency or polling station. The most basic and conclusive proof of over-voting is the voters’ register, the basic of which whether or not over-voting had indeed taken place can be determined. See Haruna V. Modibbo (2004 16 NWLR (Pt. 900) 487 and Onoyom V. Egari (1999) 5 NWLR (Pt 603) 416 at 426. In the instant appeal the register of voters was made available to the Tribunal.
In the final analysis, I am of the humble opinion that the Tribunal painstakingly and adequately appraised and evaluated the evidence before it. The reasons stated above clearly shows that the finding of the Tribunal is supported by evidence. It cannot be faulted as such the decision of the Tribunal is not perverse as argued by appellant’s counsel. Where the Tribunal has performed its primary function of evaluating the evidence correctly and ascribing probative value to it, the Court of Appeal has no business to interfere with the finding of the Tribunal on such evidence. In Fabumiyi and Anor V. Obaje and Anor (1968) N.M.L.R 242 at 247, Coker J.S.C. (of Blessed memory) had this to say:-
“A Court of Appeal should not easily disturb the findings of fact of a trial judge who had the singular opportunity of listening to the witnesses and watching their performances.”
A similar view was expressed by the same Coker, J.S.C. (of Blessed memory) in A.M. Akinloye and Anor V. Bello Eyiyola and Ors. (1968) N.M.L.R. 92 where he said:-
“The argument on behalf of the defendants needs no further consideration as we are of the view that the judge clearly comprehended the entire case and came to a conclusion which is abundantly supported by the evidence. Where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own view for the views of the trial Court.”
In a further related case of Ogboru V. Ibori (2006) 17 NWLR (Pt 1009) 542 at 608 – 609 paras A – B the Court of Appeal held as follows:-
“An Appeal court will not interfere unless it is shown that inference drawn by the trial judge was not supported by evidence and the facts before him or was perverse. Credible in this connection means the evidence worthy of belief and credit it must not only prove from a credible sense; it must be credible in itself in the sense that it should be natural, reasonable probable in view of the entire circumstance.”
See also Ebba V. Ogodo (1984) 4 SC 84; Nwokwo V. Nwosu (1994) 4 NWLR (Pt. 317) 172; Rean Ltd. V. Sangotede (2000) 4 NWLR (Pt. 653) 452; Fagbenro V. Anobadi (2006) 7 NWLR (PI 978) 172 and Enemuno V. Duru (2004 9 NWLR (Pt 77) 75.
On the whole, Appellant has failed to show that the judgment of the Tribunal is not correct. The finding of the Tribunal that Appellant failed to discharge the burden of proving the allegation that there was over-voting at Idoluwo Ward J, Code 10, Unit 004 cannot be faulted. Consequently, both issues 1 and 2 are resolved in favour of the respondents.
In the result, I find the appeal unmeritorious and am hereby dismissed.
I affirm the decision of the Tribunal dated 8/10/2007 wherein the election of the 1st the respondent was upheld. I shall award N30, 000 costs to the 1st respondent only. I make no order as to cost in favour of the 2nd – 10th respondents.
Other Citations: (2008)LCN/2696(CA)
