Independent National Electoral Commission & 3 Ors V. Ezugwu Joel Ifeanyi D. & 5 Ors (2008)
LawGlobal-Hub Lead Judgment Report
Olukayode Ariwoola, J. C. A.
This is an appeal against the decision of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal, Enugu State in Petition No NAGL/EPT/EN/NA/32/2007 between Ezugwu Joel Ifeanyi v. Independent National Electoral commission and Ors. Delivered on 11th December, 2007.
This appeal was heard on 14/10/2008. The 3rd – 6th Respondents in the case were not represented by any Counsel and they did not file any brief of argument in the appeal. There was however proof of service of hearing notice on them that the Appeal was to be heard.
On the 21th April, 2007, the Independent National Electoral Commission (INEC) (herein after referred to as the 1st Appellant) conducted election into the National Assembly for the House of Representatives, in particular, for the seat of Nsukka/Igho Eze South Federal Constituency. Ezugwu Joel Ifeanyi D. was the candidate of All Progressive Grand Alliance (APGA) in the election while the 2nd Respondent, Dr. Patrick Asadu was the candidate of the 3rd Respondent, Peoples Democratic Party. At the conclusion of the election, INEC, the 1st Appellant declared Dr. Patrick Asadu as the winner of the National Assembly scat of the House of Representatives in Nsukka/lgbo Eze South Federal Constituency. As a result of the declaration, the 1st Respondent herein filed a petition dated 17th May, 2007 on 22nd May 2007 praying for the following:
(a) An order nullifying the purported election of 21st April, 2007 held in Nsukka/Igbo Eze South Federal Constituency.
(b) IN THE ALTERNATIVE: An order declaring that the 3rd Respondent was not duly elected by majority of lawful votes cast at the election.
(c) An order setting aside the purported announcement/return of the said Elections and withdrawing any certificate of return purportedly issued the 1st respondent.
(d) An order directing the appropriate government agencies to commence without delay immediate prosecution of any body Or official found to have breached any provisions of the Electoral Act or the constitution of the Federal Republic of Nigeria.
(e) An order directing INEC to conduct a free and fair, transparent election in the said constituency in which nobody or official indicated in the petition herein, hall participated in conducting.
It is note worthy that the major grounds upon which the Petitioner based his claim are as follows:
(i) That the Respondents jointly and severally by themselves or through their agents committed corrupt practices and breach of Electoral Act, 2006 before, during and after the section of 21st April, 2007
(ii) That there were gross irregularities, malpractices, breach of and compliance with the Electoral Act, multiple voting, thuggery, harassment and disenfranchisement of voters; violent falsification of result in all the polling station in the two Local Government Area in the constituency concerned.
At the conclusion of the trial, the tribunal held that the Issue of corrupt practices as alleged was not proved beyond reasonable doubt as required. But the petition succeeded on the other ground and the election conducted on 21st April, 2007 into Nsukka/ Igbo Eze South Federal Constituency in which Dr. Patrick Asadu was declared and returned winner was nullified. The INEC was ordered to conduct fresh election into the said Federal Constituency within ninety days thereof.
Dissatisfied with the above decision of the Tribunal, INEC and others filed a Notice of Appeal dated 18th December, 2007 with the following four grounds which I hereby reproduce without their particulars:-
Grounds of Appeal:
I. The learned Hon. Justices of the Tribunal erred in law and thereby came to a wrong conclusion when they stated;
“The 1st Respondent INEC and the 2nd, 5th, and 6th Respondents who are responsible for conducting the election and who have a duty to conduct the election in substantial compliance with electoral law called two witnesses” and “coming to the witness to the INEC, they only made a general statement on Oath. They never went to specific and show how the elections were conducted on that day.
- The Learned Honourable Judges of the Tribunal erred in law and hereby came to a wrong conclusion when they held “The INEC Counsel by eliciting facts relating to time from the witness under cross examination to our mind is an after thought and meant to over reach the evidence of witnessed to the petitioner, We find it difficult to believe the evidence of RW3, RW5, RW6, RW7 and RW8 that were obtained during cross examination by Counsel to INEC with regard to time (of arrival of election material in the various wards in the Nsukka/Igbo Eze South Local Government Area.”
- The Learned Honourable Judges misdirected themselves by not properly evaluating available evidence and thereby came to a wrong conclusion when they held “it is our opinion that the petitioner has proved that electoral (sic) materials arrived very late in most parts of the constituency which lead (sic) to no voting or no proper collation of results. The combined effect is that the election was not conducted in substantial compliance with the Electoral Act, 2006.
- The Learned Honourable Judges of the Tribunal erred in Law and thereby came to a wrong conclusion by pushing the burden of providing regularity of the election onto the Respondents/Appellants when they staled “we have also observed that in paragraph 6 (viii) of INEC reply to the petition, INEC expressly admitted that elections could not take place in three wards in Igbo -Eze South Local Government due to INEC called anticipated violence … No evidence has been led by the Respondents to prove that this failure to conduct elections into the three wards due to anticipated violence is not part of a noncompliance with the Electoral Law or Guidelines that did not affect the outcome of the election into the Nsukka/Igbo Eze South federal constituency. In the absence or such evidence it is From the above grounds of the following issues for our view that this failure to conduct election into the three wards in Igbo-Eze South Local Government Area by INEC is a further proof of noncompliance with the Electoral Act and Guidelines.”
On the above grounds of appeal, the Appellants sought the following relief.
“An order setting aside the Judgment of the Tribunal dated 11th December, 2007 and confirming the result of the election of 21st April, 2007 as declared by the 1st Respondent/Appellant concerning Nsukka/lgbo Eze South Federal Constituency of Enugu State”,
Briefs were filed and exchanged. From the above grounds of Appeal, the Appellants distilled determination.
- “Whether having regard to the evidence adduced the Tribunal properly applied the burden of proof in the case which being an election petition required the 1st Respondent to establish not only substantial non-compliance With the Electoral Act, 2006. but that the alleged non-compliance substantially affected the outcome of the election. (Ground 1)
- Whether the Tribunal properly evaluated the evidence led before it when it treated with complete levity and disregard the evidence adduced by the Respondents in the petition as to the lime of commencement of the election the subject matter of the petition, (Grounds 2 and 3).
- Whether the Tribunal was right when it sustained the case of the 1st Respondent based on non- compliance in the absence of any demonstration by the 1st Respondent of how the alleged noncompliance affected the outcome of the election the subject matter of the petition”. (Ground 4).
The appellants took the issues seriatim in the argument in their brief. On Issue NO.1, it was submitted that the decision of the Tribunal was mounted on a very narrow pedestal, that is to say, that the 1st Respondent was unable to establish through his witnesses that the election materials were supplied very late in the day which did not permit intending voters to cast their votes. They contended that the tribunal hardly carried out evaluation of the evidence adduced by the 1st Respondent’s witnesses on the issue of the time election materials were supplied to the respective wards. Reference was made to the only portion of the judgment where the tribunal commented on the evidence of the 1st Respondent and his witnesses as to time of delivery of the election materials.
The appellants further contended that the evidence as to time cannot be considered in isolation but must be weighed against all the facts and circumstances of the case and evidence led. He submitted that it is only upon a satisfaction of this that it could be said that a proper evaluation was made.
The appellants contended that the evidence of 2nd Respondent as to time election materials arrived and were distributed at Igbo-Eze South Local Government was totally ignored by the Tribunal.
Likewise the evidence elicited under cross examination by the Counsel to INEC from witnesses for the 2nd Respondent who testified specifically as to the time the election materials were distributed in their respective wards in both Local Government Areas that comprised the constituency. They contended further that such evidence went to contradict and render unbelievable the evidence of the 1st Respondent’s witnesses. They submitted that the evidence were the ones the tribunal ought to have evaluated along side the evidence rendered by the 1st Respondent.
Learned appellants Counsel referred to Sections 115, 148 and 149 of the Evidence Act, 1990 and submitted that there is the presumption that any election result declared by a returning officer is deemed authentic and correct. The burden therefore is on the person who denies its correctness. He cited, Jalingo v. Nyame (1992) 3 NWLR (pt 231) 538. It was further submitted that the proof required is indeed a very high one when the allegations of the 1st Respondent are dispassionately considered.
Learned appellants Counsel referred to the portion of the tribunal’s decision where it was held that the Respondents to the petition failed to discharge the burden placed on them and submitted that there was no such burden placed on the Respondents to the petition, He submitted further that the issue of shifting burden never arose, as the 1st Respondent/Petitioner did not offer tangible admissible evidence to prove non-voting to which the allegation of late arrival of election materials was inextricably tied.
On the second issue formulated for determination, the appellants referred to the testimony of 2nd Respondent in chief on the time when the election materials arrived the Local government Area and were distributed. Learned Counsel to the appellants contended that the tribunal did not touch on the said evidence. It was as if the evidence was never adduced at all.
The appellants referred to paragraphs of their reply to the petition upon which the answers they got from cross examination of witnesses to 2nd Respondent were based. Learned Counsel submitted that the evidence gotten from witnesses under cross examination were properly obtained, relevant and admissible. He cited various decided cases, including, Ogolo v. Fuhura (2003) 11 NWLR (pt 831) 231, Ogbeide v Osula (2004) 12 NWLR (pt 886) 86 at 118, Daggash v. Bulama & ors. (2004) NWLR (pt 892) 144 at 241. The Court was urged to resolve the issue in favour of the appellants, that the tribunal did not properly evaluate the evidence led before it when it treated with levity and disregard, the evidence adduced by the Respondents to the petition as to the time election commenced, being the subject matter of the petition.
The third Issue is whether the tribunal was right when it sustained the case of the 1st Respondent based on non-compliance in the absence of any demonstration by the 1st Respondent of how the alleged non-compliance affected the out come of the election, the subject matter of the petition. The appellants contended that the tribunal misapplied the principle of shifting of burden of proof He submitted that the onus is on the 1st Respondent/Petitioner to adduce sufficient evidence of non-compliance and show that the noncompliance in fact substantially affected the result of the election.
The appellants contended that the 1st Respondent/Petitioner did not tender the Register of voters and did not place before the Tribunal the number of people who did not vote by virtue of the fact that election was not conducted at the three wards. Learned appellants’ Counsel submitted that there was no iota of evidence offered by the 1st Respondent or anybody for that matter to the effect that there was any effect, let alone, substantial effect, of the alleged violation, on the outcome of the election. He urged the Court to resolve the third issue in favour of the appellants, in that there was no evidence to show that an alleged non-compliance with the Electoral Act, 2006 substantially affected the outcome of the election. He finally urged the Court to allow the appeal and set aside the Judgment of the tribunal.
The 1st Respondent in his brief of argument dated 13th May, 2008 and tiled on same date formulated three issues for determination as follows:
I. ‘Whether the Election Tribunal was right in nullifying the Election on the ground of substantial non-compliance with the Electoral Act and in relying all the Court of Appeal decision in Bassey v. Young (1963) 1 All NLR 31
- Whether the Honourable Tribunal below was right in treating the evidence elicited under cross – examination by the Counsel for the Appellants as an after thought and meant to over reach the evidence of witnesses to the petitioner.
- Whether the Honourable Tribunal properly evaluated the evidence of the witnesses for the parties in reaching its decision.
On a careful perusal of the three respective issues formulated by the appellants and 1st Respondent and having considered their submissions, it become clear to me and I am convinced that the appeal can be conveniently and validly resolved on only one main Issue which will cover the whole areas in controversy without doing injustice to either party. Ordinarily, the Rule of this Court does not provide for formulation of Issues by the Court. But there could be compelling situations when there will be need for such an exercise. See; Emeka Nwana v. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (Pt 889) 128 at 142, (2004) 39 WRN 124, Erhabon v. Erhabon (1997) 6 NWLR (Pt 510) 675, Chief Adebiyi Olafisoye vs. Federal Republic of Nigeria (2004) 4 NWLR (Pt 864)580.
In other words, this Court has the right, indeed the duty to, where appropriate, formulate issues for the determination of an appeal, in particular, where the Court is of the view that the issue (s) as formulated by the Counsel does or do not deal with the substantive issue in controversy in the appeal But the issue so formulated by the Court must be consistent with the grounds of appeal filed by the appellant. See; Yadis Nigeria Ltd vs. Great Nigeria Insurances Ltd. (2007) 10 SCM 183.
The instant case is one of such situations [consider appropriate for the Court to formulate the Issue required to dispose of the case either way. That main Issue arising from the Grounds of Appeal is as follows:
“Whether on the available evidence before the Election Tribunal there was breach of and or non-compliance with the Electoral Act, 2006 in the conduct on the Election of 21st April, 2007, substantial enough to affect the outcome of the election substantially and sustain the petition”.
As stated earlier in this Judgment, the two main grounds of the petition by the 1st Respondent against the declaration of a winner of the election by the Appellants are that, the Appellants who were Respondents before the tribunal “jointly and severally by themselves or through their agents committed corrupt practices and breach of Electoral Act, 2006 before, during and after the election of 21st April, 2007. The Election Tribunal had held that the allegations were not proved by the petitioner as he should, hence on that leg, the petition failed.
It is note worthy that there was no appeal against that decision of the tribunal by the Petitioner, it therefore remains valid. The only main ground or the petition which the Tribunal upheld as stated earlier is that “there were gross irregularities, malpractice, breach of and noncompliance with Electoral Act, multiple voting, thuggery, harassment of voters, violent falsification of result in all the polling stations in the two Local Government Area in the constituency concerned,” See; paragraph 17 (j) (x) of the petition on page 7 of the record of appeal.
In the judgment of the tribunal, it was noted that the allegation of the Petitioner was mainly against the 1st, 2nd, 5th & 6th Respondent who arc the appellants herein, in that they did not conduct the election of 21st April, 2007 for the Nsukka/Igbo-Eze South Federal Constituency in substantial compliance with the provisions of Electoral Act, 2006. The tribunal considered the testimonies of all witnesses of the Petitioner, including the Petitioner himself for instance, PW1, one Ugwu Gabriel in his deposition on Oath as the Local Government collating Agent of APGA during the said election stated that some of his agents reported that there was no election in their wards, while some other agents reported that voting materials arrived late without result sheets.
In the same vein, PW2, one Onyeke in his statement on Oath as collating Agent of APGA stated that there was no voting, as materials arrived late due to the commotion caused by the Secretary to Enugu State Government then, one Dr, Dan Shere. Indeed, all the nine witnesses called by the Petitioner in their respective statement on oath stated either that voting materials arrived late as a result of which there was no voting or there was no voting as a result of commotion caused. The Petitioner himself was summed up by the tribunal to have testified that materials departed for his ward at about 3 p.m. on the election day.
However, the Respondents/Appellants, whose responsibility it was to conduct the election called two witnesses before the tribunal. The first witness (RWI) Dr. (Mrs) Ekpo, a logistic officer with 1st Respondent (INEC) was quoted by the tribunal in her deposition as follows:
“That in most places in the constituency, election was conducted in a conducive atmosphere and all the prescriptions and steps set out in the Constitution and the Electoral Act and the guidelines issued by 1st Respondent pursuant thereto were substantially complied with in the conduct or (he said election,”
The Respondents second witness’s statement on oath was said to be almost the same with that of RWI. The then 3rd Respondent who testified as RW4 in his statement on oath was categorical that election materials arrived Igbo-Eze Divisional Police Headquarters at about 9.30 a.m. and were sorted and distributed. He went further to say that results started coming into the collation centre at 6.30 p.m. All other witnesses to the Respondents in their respective statement on oath stated that election took place, results were collated and announced. Each stated that the PDP scored the highest votes in their respective ward.
The tribunal in reviewing the evidence adduced by parties stated that the witnesses to the Petitioner in their statement were specific as to the time materials arrived at their various wards, while some stated the time they left the polling boots without election materials. Whereas, the witnesses of the Respondents were general in their statement. Indeed, the tribunal came to the following conclusion:
“‘Those evidence of Petitioner’s witnesses were never contradicted or made unreliable under cross examination as regard time of arrival of election materials in their various ward…
The witnesses to the INEC’ they only made general statement on Oath. They never went to specific and show how the elections were conducted on that day.”
However, while a witness to the Petitioner, PW5, Ozioko Ejikemi of Nru ward in Nsukka Local government Area was categorical in his statement on oath, that on the election date, materials arrived rather late, at 6.30 p.m. hence no election look place, the 1st Respondent himself who testified as PW8 when cross examined with respect to voting in the same Nru ward agreed and conceded that “election took place in some areas like Obino, Ehaallumona Obino II, Ukponano wards and some places around Nru wards”.
Despite the admission of 1st Respondent himself under cross examination above, it is astonishing that the Tribunal found that due to late arrival of materials, voting was not made possible for the electorate. In their judgment, the tribunal went further to state as follows:
“The INEC counsel by eliciting facts relating to time from the witness under cross examination to our mind is an after thought and meant to over reach the evidence of witnesses to the petitioner. We find it difficult to believe the evidence of RW3, RW5. RW6, RW7 and RW8 that were obtained during cross examination by Counsel to INEC with regard to time of arrival of election materials in the various wards in the Nsukka/Igbo-Eze South Local Government Area,”
Generally, I am unable to appreciate the rationale or the reasoning behind the conclusion reached by the tribunal on the evidence elicited from the Respondent’s witnesses on the time of the election when being cross examined. It is trite that the defendant or respondent, as the case may be, after the Plaintiff or Petitioner has called his witnesses, who give evidence in- chief, that is, as per his claim, is at liberty to cross examine the witnesses by putting as many questions as are material to his own case. This is to test whether or not the witnesses are speaking the truth. Indeed, the respondent could even be “cross” with the witness under cross examination, as the word implies. See; Alhaji Waziri Ibrahim v. Alhaji Shehu Shagari & Ors (2007)3 EPR 99. In other words, answers gotten from a witness under cross examination, be he the witness or the Plaintiff or a co defendant in the case, is as good and admissible as the evidence obtained under examination- in- Chief. The tribunal was therefore not right, to say the least, when it said that it was an afterthought, meant to over reach the witnesses of the Petitioner, for the Counsel to the Appellants to elicit facts relating to time, whatever that means, when the petitioner’s case was principally and un arguably based on late arrival of materials. Time was therefore material to the case and any admissible evidence elicited by parties must be properly considered.
On whether it is proper for a co- Plaintiff or co-Defendant, as the case may be, to cross- examine each other’s witness, it has been held to be proper and perfectly inorder, as long as issues are joined in the pleadings on such facts elicited. In Ogolo v. Fubura (2003)11 NWLR Pt (831) 231 the Supreme Court, per Niki Tobi, JSC stated as follows:
“The important aspect is that Plaintiffs in the matter (original and co-Plaintiffs) must present a common front and a common interest in the presentation of their claims or relief. They must on no account present opposing interests or opposing claims or reliefs…. they are perfectly free to cross examine each others witnesses but the cross examination must not give rise to presentation of opposing interests or opposing evidence or opposing claims or reliefs. Counsel on both sides have the right through discreet and dexterous coordination to cross examine each others witnesses with a view to beefing up or improving the common case of the plaintiffs as presented by them. Cross examination is a right available to parties in litigation and cannot be taken away…”
Cross examination has also been held to be part of the proceedings and the answers are given by witness under oath, hence it has similar weight in relation to facts in contention. Therefore, where the answer elicited is relevant and direct to the fact in issue it cannot be brushed aside or ignored simply because it comes through cross examination. See; Ogbeide vs. Osula (2004) 12 NWLR (Pt 886) 86 at 118.
Furthermore, it is worthy of note once again that the complaint of the 1st Respondent/Petitioner was that there was non-compliance with the Electoral Act, 2006 and there were irregularities in the conduct of the election. On this issue, Section 146(1) of the Electoral Act, 2006 readily comes to mind and it provides thus:
“An election shal1nol be liable to be invalidated by reason of non-compliance with the provisions of this Ad if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
In Michael Ama Nnachi vs. Hon. Trem O. Ibo & Ors (2004) 1 EPR 786, a Case which is similar to the case in hand and in which Section 135(1) of the 2002 Electoral Act, in pari material, with Section 146( I) of the Electoral ACT, 2006 was considered, this Court opined as follows:
‘The Appellant’s witnesses tried to paint the picture that the election aborted due to intervention of thugs who took away electoral materials. There was also allegation that materials arrived late and as such election did not start on schedule. The general rule is that the onus is on the Appellant to prove that there were such malpractices and non-compliance which prevented him from winning the election. In Kudu vs. Aliyu (1992) 2 NWLR (pt. 231) 615 at 620, Akanhi, .JCA (as he then was) put it beyond argument that a Petitioner in an election who alleges in his petition a particular non-compliance must satisfy the Court that the non-compliance is substantial and affects substantially the result of the election.”
Generally, by common law principle, it is the party in a case who asserts that has the legal duty to prove the correctness of his assertion, and in most cases, that party is the Plaintiff or Petitioner, as the case may be.
Under our law, 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. See; Sections 135(1) & 137 (1) of the Evidence Act, 16 Adegokevs. Adibi (J992) 5 NWLR (pt 242) 410, Adelaia vs. Alade (1992) 6 NWLR (pt 245) 116 University Press Ltd. VS. I.K. Martins Nig. Ltd. (2000) 4 NWLR (pt 654) 584 Agu. Vs. Nnodi (2002) 12 NSCOR 128 Hilary Farms Ltd & Ors vs. MN Mahtra & Drs. (2007) 12 SCM (pt 1) 157 at 174, C.C.C.T.C. Ltd. vs. Ekpo (2008) 6 NWLR (pt 1080) 362/395.
It is clear from the above, that the 1st Respondent/Petitioner in the instant case was expected to do more than he did at the heating of his petition to sustain the allegation of malpractices, irregularities, breach of and non-compliance with the Electoral Act, by the Appellants. In other words, it is imperative on the 1st Respondent to show first, that there was breach of and non-compliance with the Electoral Act, 2006 and secondly, that the non-compliance was substantial and finally that the substantial non-compliance substantially affected the conduct of the election, which in turn affected the result of the election to his detriment.
On the record of Appeal, there is nothing to show that the 1st Respondent/Petitioner adduced credible evidence to establish those allegations or discharge the burden of proof of them saddled on him by the law.
Indeed, paragraph 17 of the petition on pages 4 -7 of the record, as earlier referred copiously state the facts upon which the petition was based. But it is trite that averment in pleadings or petition proves nothing at all if not supported by evidence, unless it is admitted by the opposite side in a case. The averments are not evidence of the matter averred therein. See; Alphonsus Nkuma v. Joseph Otunuva Odili (2004) 4 SCM 127 at 139; Savannah Bank Ltd. vs. Pan Atlantic (1987) 1 NWLR (pt 49) 212, Durosarn v. Avorinde (2005) 21 NSCQR 701 at 718.
The 1st Respondent had argued and the Tribunal wrongly bought his argument, that the Appellants, in particular, INEC expressly admitted that elections could not take place in three wards in Igbo-Eze South Local Government, and submitted that the failure to conduct elections into those three wards raised a presumption that there was substantial non-compliance with the Electoral Law. But the 1st Respondent failed to discharge the burden of establishing, as he averred in his petition, how the failure to conduct election in the said three wards substantially affected the result of the election as declared. The tribunal, to say the 1cast, simply misapplied the principle of shifting of burden of proof as it was not the duty of the Respondent to the petition to first prove that there was compliance or that there was no breach of the provisions of the Electoral Act in the conduct of the election.
The phrase “burden of proof’ in civil cases has been held to have two distinct and frequently confused meanings. Firstly, it may mean the burden of proof as a matter of law and the pleadings, usually referred as the legal burden or the burden of establishing a case; secondly, the burden of proof in the sense of adducing evidence, often referred to as the evidential burden. While the burden of proof in the first sense is always stable and static, the burden of proof in the second sense may shift constantly as one scale of evidence or the other preponderates. See; M.S.C. Ezemba vs. S.D. lbeneme & Anor. (2004) 40 WRN 1 at 26, Felix O. Osawaru vs. Simon Ezeiruka (1978) 6 & 7 S.C 135 at 145, Odukwe vs. Ogunbiyi (1998) 8 NWLR (Pt 561) 339 at 353.
It was part of the Petitioner’s allegation that due to the late arrival of voting materials and commotion caused at the Polling booths, voters could not cast their votes, hence there could not have been an election on the 21st day of April, 2007 as claimed by the Respondents. To establish the above weighty allegations, the Petitioner was required to call as witnesses, some Voters who could not vote with their voters card and Voters Register duly produced, tendered and admitted in evidence. Similarly, to prove the allegation of late arrival of materials at polling booths, which prevented accredited voters from exercising their right to cast their votes, the Petitioner was required to call Polling Agents as witnesses, This is because by virtue of the Electoral Act, 2006, the Polling Agents were required to be present at the distribution of the election materials from the office to the polling booths. Sec; Section 44 (2) of the Electoral Act, No explanation was advanced why no polling agent was called as witness on the allegation of late arrival and illegal dealings in election materials on the election day in question.
In Nnaji vs. Agbo 2006 2 EPR 896, the Court held as follows:-
“Dealing on where the onus of proof lies in the instant case, by virtue of Section 150 Evidence Act there is presumption that elections were duly conducted in all the wards including the disputed areas and that all the conditions for valid elections were duly met. It is therefore incumbent on the Petitioner to call the voters to show that they did not vote in the disputed wards on the said date because there were no electoral officials presence and that no voting counting or announcement of result took place in the disputed wards on that day”
See also; Onovom v. Egari (1999) 5 NWLR (Pt 603) 416 a425.
In Buhari v. Obasanjo, (2005) 13 NWLR Pt 941) 1 at 315, the Supreme Court, per Akintan, JSC stated thus;
“The position of the law regarding the type of evidence which must be led in support of the allegations in which figures and scores of candidates at an election being challenged should come direct from the officers who were on the field where the votes were counted and or collated. The State party agents….., received the figures he gave in his evidence in court in this case from his party’s agents who were not called as witnesses. Such evidence is therefore inadmissible as it is hearsay”.
In the same Buhari VS. Obasanjo (supra) the Supreme Court held that where an allegation of non- compliance with the Electoral law is made, the onus lies on the Petitioner firstly to establish the substantial non compliance, and secondly that the non compliance did or could have affected the result of the e1cction. It is after the Petitioner has established the foregoing that the onus would shift to the Respondent whose election is challenged, to established that the result was not affected.
In the instant case, from the written statement of one UGWU Gabriel who testified as (PW1) for the Petitioner, he stated as follows:
“There were no results from the 20 wards of Nsukka Local Government. There was therefore no collection of results in the Local Government. It is strange to me that the returning officer announced result we do not know how it came about. Most of our agents reported that there were no election in their wards and one of the Petitioner’s witnesses, whose evidence was relied on to arrive at their decision appealed against.
In view of the above and without any further ado, I am satisfied without doubt that the justice of this case is to resolve the sole issue formulated in favour of the appellants, and that, the 1st Respondent/Petitioner failed to prove by credible evidence that there was substantial non compliance with the Electoral Act, 2006 which in turn substantially affected the result of the election to warrant the nullification of the said election.
In the final analysis, I hold that this appeal is meritorious and should succeed. Accordingly, the appeal is allowed.
In the circumstance, the Judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal, Enugu State delivered on Tuesday the 11th day of December, 2007 is hereby set aside. The result of the election of 21st April, 2007 as declared by the 1st Appellant (INEC) concerning Nsukka/Igbo-Eze South Federal Constituency of Enugu State is hereby confirmed.
There shall be no order on costs.
Other Citations: (2008)LCN/3019(CA)
