Maduakolam Samuel Chidubem V. Obioma Ekenna & 12 Ors (2008)

LawGlobal-Hub Lead Judgment Report

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

The appellant in this appeal representing Ezinhitte-Mbaise Local Government Area Constituency, contested the election into the Imo State House of Assembly held on 14th April, 2007 on the platform of the All Progressive Grand Alliance (APGA). The 1st respondent contested the election on the platform of the Peoples Democratic Party while three other candidates Raymon Nna, Peter Nwokorie and Anthony Nwogu contested on the platforms of the Progressive peoples Alliance (PPA), the All Nigeria Peoples Party (ANPP), and the Action Congress (AC) respectively. At the conclusion of the election the 1st respondent was returned as the winner with 16,024 votes while the appellant came second with 6,312 votes.

The appellant was dissatisfied with the return of the 1st respondent and filed a petition before the Governorship and Legislative Houses Electron Tribunal holden at Owerri (the lower Tribunal) challenging the said return. The grounds of the petition at page 3 of the record are

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

b. The election was invalid by reason of corrupt practice and/or non compliance with the provisions of the Electoral Act 2006.

The parties, in compliance with the Election Tribunal and Court Practice Directions 2007 duly filed and exchanged their witness statements and list of documents to be relied upon at the hearing. The appellant and five other witnesses testified in support of his case. Three witnesses testified on behalf of the 1st respondent while one witness testified for the 2nd – 13th respondents. Documents were tendered as exhibits. During the pre-hearing conference the appellant abandoned the first ground of the petition. The only issue for determination before the lower Tribunal was therefore whether the election was invalid by reason of corrupt practice and/or non-compliance with the provisions of the Electoral Act. At the conclusion of the trial the lower Tribunal, in a considered judgment delivered on 2/10/07, dismissed the petition.

The appellant was dissatisfied with the judgment and has filed a notice of appeal containing seven grounds of appeal.

In compliance with the Practice Directions No. 2 of 2007 the parties duly filed and exchanged briefs of argument.

In the appellant’s brief dated 3/4/08 and filed on 4/3/08. two issues were formulated for the determination of this appeal.

They are.

1. Whether the trial Tribunal was right in holding that the evidence of PW2, PW3, PW4, PW5 and PW6 were worthless? (Grounds 3, 5 and 6)
2. As between the appellant and the respondents, who discharged the burden of proof imposed on him by law? (Grounds 1, 2 and 4)

The 1st respondent, in his brief dated 10/3/08 and filed on 11/3/08, adopted the two issues formulated by the appellant.

The 2nd – 13th respondents’ brief is dated 10/3/08 and filed on 11/3/08. They formulated a single issue for determination thus:

“Whether the Appellant discharged the burden of proof of his petition?

At the hearing of this appeal on 8/4/08, Mr. N.A. Nnawuchi adopted the appellant’s brief and urged us to allow the appeal. Mr. Uzoma Onyeike for the 1st Respondent arid Mr. Gordy Uche for the 2nd – 13th Respondents adopted their respective briefs and urged us to dismiss the appeal. The appeal shall be determined on the two issues formulated by the appellant.

Issue No. 1.

In support of the first issue S.C. Imo Esq., learned counsel who prepared the appellant’s brief, submitted that the lower Tribunal erred in law in placing reliance on the case of Chevron Nigeria Ltd. v. Enioye (2005) All FWLR (265) 1168 and holding that the depositions of PW2, 3, 4, 5 and 6 were defective. He noted that the lower Tribunal made a finding that the depositions were signed by the secretary of the Tribunal and contended that the finding raised a presumption of regularity in favour of the depositions. He argued that the burden was on the respondents to prove by evidence that the depositions were not sworn to before a commissioner for oaths. He submitted that contrary to the finding of the Tribunal PW3 and PW4 did not state that they swore to their depositions before a commissioner for oaths. Rather they stated that they signed the depositions in their homes He referred to Black’s Law Dictionary 6th edition for the definition of “sworn” and “verified” and submitted that signing an affidavit is different from swearing to it’ He submitted’ without conceding, that failure to swear to an affidavit does not affect the evidence of the witness at the trial. He maintained that the adoption of the statement under oath at the trial is a re-affirmation of its contents.

Learned counsel submitted that the finding of the lower Tribunal to the effect that PW2 was not a credible witness is perverse. He noted that PW2’s testimony under cross-examination was consistent with his written deposition He also submitted that when PW2 stated under cross-examination that his party won the erection, having testified in his evidence in chief that election did not take place in the four wards of Onicha Community, he was referring to the election for the entire constituency. He submitted that learned counsel for the 1st respondent did not ask the witness which party won the election in the Onicha wards. He submitted that in the circumstances the lower Tribunal did not exercise its discretion judicially and judiciously and failed to make use of the opportunity it had of watching PW2’s demeanour.

In response to this issue, Chief Uzoma Onyeike, learned counsel for the 1st respondent submitted that it is the primary duty of the trial Tribunal that heard and observed a witness’s demeanour to evaluate his evidence and ascribe probative value thereto. He submitted that it is only where the Tribunal fails in its duty that the appellate court would interfere. He cited the case of: Fagbenro Vs Arobadi (2006) ALL FWLR (310) 1575 at 1594-1595. He referred to pages 99 and 103 of the record and submitted that the lower Tribunal properly performed its duty with regard to the evidence of PW2 before deciding not to accord it any probative value He relied on: Sha Jnr Vs Kwan (2000) FWLR (2) 1987 He submitted that in the circumstances this Court has no duty to interfere and evaluate the evidence. He cited the following cases: Ramaine Vs Ramaine (1992) 4 NWLR (238) 650; Akinola vs. Oluwo (1962) 1 SCNLR 352: Ebba Vs Oqodo (1984) 1 SCNLR 372.

With regard to the written statements of PW3 4, 5 and 6 he submitted that pursuant to paragraphs 1 and 2 of the Election Tribunal and Court Practice Directions 2007 a party intending to call witnesses at the trial must file their written statements on oath in the Tribunal registry. He submitted that the requirement envisages that the statements shall take the form of affidavits and must comply with Section 90 of the Evidence Act. He submitted that Section 80 of the Evidence Act is clear as to persons before whom an affidavit could validly be sworn He submitted that by their own showing PW3, 4, 5 and 6 in answer to questions under cross-examination stated that their written statements were not made on oath or signed on marked in the presence of the person before whom they are required to be taken. He referred to their evidence at the relevant pages of the record. He submitted that none of the statements meet the requirement of the law and could not be saved by the presumption in Section 82 of the Evidence Act because the witnesses themselves had admitted that they did not sign the statements before the authorised person He submitted that the lower Tribunal was correct to disregard the statements. He referred to the case of Maraya Plastics Industries Ltd. Vs Inland Bank of Nigeria Plc (2002) All FWLR (120) 1732. He also submitted that the Tribunal correctly relied on the case of: Chevron Nigeria Ltd. Vs Enioye (supra) in the circumstances. He urged us to answer the first issue in the affirmative.

Learned counsel for the 2nd – 13th respondents. Mr. Gordy Uche, supporting the submissions of Chief Onyeike for the 1st respondent submitted that the statements of PW3, 4. 5 and 6 are defective for not being deposed to before the commissioner for oaths. Furthermore he noted that PW3 who testified in Ibo language stated that he is illiterate in English language and yet his statement did not contain an illiterate jurat. He submitted that his statement is inadmissible and cannot be used in proof of any fact as required by paragraph 4(1) of the Practice Direction 2007. He was of the view that the secretary of the Tribunal who appended his signature to the statements ought to have been called to testify to state whether the statements were sworn to before him or not. He submitted that the respondents having successfully rebutted the legal presumption in favour of depositions, the burden fell back on the appellant by virtue of Section 137(2) and (3) of the Evidence Act. He contended ‘ that the effect of the defective statements is that the said witnesses did not give evidence in support of the petition

With regard to this issue the first question to be answered is whether the written statements of PW 3, 4, 5 and 6 filed along with the petition met the requirements of paragraph 1(1)(b) of the Practice Directions 2007, which require all petitions to be accompanied by written statements on oath of the witnesses the petitioner intends to call in proof of the petition. In order to understand the rationale and purport of this requirement it is necessary to consider some other relevant provisions of the Practice Directions. Paragraph 4 (1) and (3) thereof provide.

“4(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court.

(3) There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.” (Underlining mine).

A careful examination of the above provisions reveals that while sub paragraph (1) states the general requirement for facts to be proved by written deposition and oral examination of witnesses in open court, sub paragraph (3) explains the scope and extent of the oral examination envisaged. The written deposition on oath stands as the main evidence in chief of the witness. The provision was introduced to accelerate the hearing of cases by doing away with lengthy oral evidence in chief, with its attendant delay occasioned by long hand recording of evidence, which is often a repetition of the pleadings and the unavailability of a witness to continue his evidence on during his evidence on adjourned dates. With the written deposition having been made on oath before a commissioner for oaths, once the witness has adopted same before the court, identified documents admitted by consent and tendered any disputed documents, the opposing counsel may proceed immediately with the cross-examination, thereby saving valuable time and costs. It is therefore imperative that for a written deposition to be accepted as proof of the facts it contains it must be made on oath.

An affidavit is defined in Black’s Law Dictionary, 8th edition, as “a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.” In order to determine what would constitute a valid deposition on oath recourse must be had to the relevant provisions of the Evidence Act. Sections 80, 82, 84 and 90(f) provide:

“80. Any affidavit sworn before any Judge, officer or other Person in the Commonwealth to take affidavits, may be used in the court in all cases where affidavits, are admissible.

82. The fact that an affidavit purports to have been sworn in manner hereinbefore prescribed shall be prima facie evidence of the seal or signature, as the case may be, of any such court, Judge, magistrate or other officer or Person therein mentioned, appended or subscribed to any such affidavit and of the authority of such court, Judge, magistrate or other officer or person to administer oaths.
83. The court may permit an affidavit to be used’ notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorized.
84. The following provisions shall be observed by persons before whom affidavits are taken –

(f) the affidavit when sworn shall be signed by the witness or, if he cannot write, marked by him with his mark, in the presence of the person before whom it is taken; (underlining mine)

The written depositions of PW3 (Bright Ufoma) PW4 (Ikechukwu Nwamara), PW5 (Josiah Alaribe) and PW6 (Jude Eze) are found at pages 16, 18, 22 and 20 of the record respectively. They all bear the signature of the Secretary to the Election Petition Tribunal. By virtue of Section 82 of the Evidence Act the Secretary’s signature thereon is prima facie evidence that the depositions were duly sworn before the person authorized to administer oaths. However, the presumption is rebuttable. Where there is evidence that the depositions were not sworn before a person duly authorized to administer oaths such depositions would be defective. The evidence of these witnesses under cross-examination by learned counsel for the 1st respondent at pages 52 – 55 of the record is instructive.

PW3 at page 52 stated:

“Today is my first time at the Tribunal. I have not been here before. Yes I made a deposition before the Tribunal. I signed my deposition when Petitioner brought it to me to sign. I signed in my house. I cannot read. When Petitioner brought the deposition to me he read it over to me. I told him to read it over to me”.

PW4 at page 53 stated:

“Election took place on 14/4/07. I remember when I signed the deposition. I now say I have forgotten. I signed it in my contestant’s house. That is the petitioner.”

PW5 at page 53 stated:

“l have a voters card. My polling station is Okohia Hall in Amaumara. There are 10 booths in the ward. After the election we filed a petition. We came here and signed the deposition here. I was standing under one car outside when they brought it to me to sign. I don’t know PW4. One the day I signed, which day has left my memory a lot of us came here to sign….”

PW6 at page 54 stated:

“I was one of those who came here to sign my deposition- The oath was brought out to me outside this court by my employer to sign and I sign (sic). It was brought outside the court. I have seen the written deposition. I did not sign it before the Commissioner of Oaths. (Underlining mine).

From the evidence of these witnesses it is clear that none of them signed their depositions before the person authorized to administer oaths. The attempt by learned counsel for the appellants to draw a distinction between signing a deposition and swearing an oath, is in my humble view, merely splitting hairs. The requirement of the law is that the deposition on oath must be signed in the presence of the person authorized to administer oaths. The two acts are part of the same transaction. PW3, PW4, PW5 and PW6 by their own evidence have rebutted the presumption in favour of their written depositions.

In the case of Maraya Plastics Ind. Ltd. Vs Inland Bank Nig. Plc. (2002) 7 NWLR (765) 109 at 120 C – E. Omage. JCA, stated thus.

“My understanding of the description of an affidavit is that the averments contained in a paper are admissible as a fact until they are disproved because the averments are sworn to before a commissioner for oaths. It is the swearing thereto that makes the document an affidavit. Where the document is not sworn to it is only a piece of paper, not an affidavit. The word is derived from the latin “affidare” which is a declaration on oath. Without the oath therefore there is no affidavit. What the respondent filed is a piece of paper in support of the writ of summons to place the writ on the undefended list. This is not as prescribed by the rules.”

See also: Buhari vs. INEC (2008 4 NWLR (1078) 546 at 608 – 609 H – D. I therefore hold that the lower Tribunal was correct when it discountenanced the written depositions of PW3, PW4. PW5 and PW6 for non-compliance with Section 90(f) of the Evidence Act and paragraph 1(1) (b) of the Practice Directions With regard to the evidence of PW2 (Stanley Onwukwe), the lower Tribunal at pages 99 and 103 of the record held thus:

Page 99: “The only testimony that remains is that of PW2. His evidence relates to 25 only out: of 136 polling booths. There is no evidence connecting the 1st respondent with what Mr. Nwanne and the unknown hoodlums did in the four wards of Onicha on the day of the election. The witness did not mention the name of the 1st respondent throughout his testimony and the role he played in the commission of the electoral malpractices by hijacking electoral materials. The 1st respondent was not shown to have participated in the criminal acts nor was he shown to have arranged or approved of them”.

Page 103: “The evidence of PW2 that Mr. Nwanne and other PDP hoodlums carted away electoral materials from the four (4) wards.; of Onicha cannot be accorded any probative value following his demeanour and the contradictory answers he gave to Counsel’s questions under cross-examination.”

This court clearly cannot comment on the demeanour of PW2. That is the prerogative of the lower Tribunal which had the opportunity of hearing and observing the witness. However this Court can examine the evidence of PW2 to determine whether it was inconsistent or contradictory and thereby justifying the finding of the lower Tribunal in that regard. In his written deposition at page 14 of the record he averred as follows:

1. “That I am the Chairman of the All Progressive Grand Alliance for Ezinihitte Local Government Area of Imo State.
2. That i worked as the leader of the Poll Monitoring Team for our party during the House of Assembly election in Ezinihitte Mbaise. The said election took place on 14/4/07.
3. That in Onicha Wards I, II, III and IV there was no election in all the 25 Polling Stations that make up the ward.
4. That the electoral materials for the said ward were hijacked by a PDP big wig known as Bright Nwanne. The said Mr. Nwanne came in the company of some unknown hoodlums and carried away the election materials.
5. That I followed them from booth to booth when this rape on democracy was being perpetrated by Mr. Nwanne and his cohorts.
6. That at Umubo Village Hall (Code 005) Polling Station the said Bright Nwanne was arrested and taken to the Police Station.
7. That as a result of the above anomaly there was no election at all in the 25 polling stations.

B. That part of my duties on the said day was to monitor the election in the ” whole Local Government Area and also monitor our Party’s Polling agents.”

In response to questions under cross-examination by learned counsel for the 1st respondent at pages 50-51 of the record he stated inter alia:

“Ezenitte is my Local Government Area.

… Onitsha (sic) is not the largest town in the Local Government Area. It has 4 wards alone. More than 1 community can join in one and make one ward. I am the Chairman of APGA. My party won the election but we were denied. I went round all the wards. Bright Nwanne was arrested and detain (sic) at the Police Station in the process of carrying the electoral materials. As Party chairman I did not do anything about the arrest. I did not make a statement to the police”.

Under cross-examination by learned counsel for the 2nd – 13th respondents, he stated inter alia:

“I cannot name the 25 polling units that make up Onitsha wards I, II, III and IV. I voted at Umuafoeze polling booth. I voted at about 12.45 pm. There were electoral materials at my polling unit. Election was peaceful at the time I voted. I left the polling station immediately I cast my vote. I visited all the 24 polling units before I went to my polling unit. When I visited the 25 polling units. I met that Bright had already carted away all the polling materials. I was personally present there. I complained verbally to the Electoral Officer. I did not make a written complaint to the police but I report (sic) verbally.” (underlining mine).

From the written deposition of PW2 reproduced above. It is clear that his evidence in chief was in relation to Onicha wards I, II, III and IV consisting of 25 polling stations where he alleged that no elections took grace That was the evidence in respect of which he was cross-examined. He did not testify in respect of the entire election for the Local Government Area, as contended by learned counsel for the appellant. He averred in his written deposition that no elections at all were herd in any of the 25 polling stations that make up Onicha wards I. II. III and IV. However under cross-examination he stated that he voted at his own polling station and that elections there were peaceful. He also stated that election materials were available. This is contrary to his deposition in paragraph 4 where he stated that the electoral materials for the ward were hijacked by one Mr. Bright Nwanne. Also contrary to his evidence that no elections took place, he stated under cross-examination that his party won the election but “were denied. This presupposes that elections took place. As observed earlier his evidence was limited to Onicha ward I, II, III and IV. Although he stated that he followed Mr. Nwanne and his cohorts from booth to booth, he was unable to name any of the polling units that make up the ward except the one where he voted. Also at which booths did he actually witness Bright Nwanne snatching the electoral materials having regard to his evidence under cross examination that “when I visited the 25 polling units I met that Bright had already carted away all the polling materials”? It is my humble view that the decision of the lower Tribunal not to accord any probative value to the evidence of PW2 cannot be faulted. I am not persuaded to interfere with it. I therefore resolve the first issue against the appellant.

Issue No. 2

With regard to the second issue, it is the contention of the appellant that although the law is that he who asserts must prove a person who makes a negative assertion bears no burden of proof. He relied on Ewo Vs Ani (2004) 3 NWLR (861) 611 at 636 A-C. It is contended that in election petition cases, the burden of proving that an election was conducted rests on the party who asserts that such election was conducted and not on the party who contends that the election did not take place. In other words, that in the instant case the burden was on the respondents to prove that elections took place in the wards complained of. Learned counsel who prepared the appellant’s brief S. C. Imo Esq submitted that the burden could only be discharged by calling at least one person who voted at any of the polling stations in each of the wards where elections were allegedly conducted. He submitted that the mere production of results is not sufficient to discharge the burden. He referred to: Remi vs. Sunday (1999) 8 NWRL (613) 92 at 128-129: Michael Vs Youssuo (2004) 15 NWLR (895) 90. Learned counsel maintained that it is only after the respondents have discharged the burden on them that the onus would shift to the appellant.

Learned counsel contended that the appellant had proved all his allegations through the testimony of his witnesses, PWs 2, 3, 4 and 5. He maintained that their evidence was not challenged through cross-examination or by the production of any evidence to the contrary. He referred to the evidence of DWs 1, 2, 3 and 4 and submitted that they did not contradict any of the specific allegations made by the appellant’s witnesses. He submitted that the appellant having discharged the primary burden of establishing the facts that led to the election not taking place in Onicha wards 1- 4. Itu Amaumara ward, Udo na Obizi ward and 13 out of the 25 polling stations in Chokoneze/Ife/Akpodim ward, the onus was on the respondents to prove that the elections were in fact conducted. He submitted that the respondents ought to have called at least one voter from each of the disputed wards to testify or the presiding officers or other INEC officials who took part in the conduct of the election. He maintained that it is the INEC officials who would produce the voters’ register and other official documents used in the conduct of the election. He cited the case of Remi vs. Sundav (supra) and Michael Vs Youssou (supra).

He submitted that in this case the respondents did not call any voter to testify and that DW4 who testified on behalf of the 2nd -13th respondents stated that he only visited one ward.

Learned counsel submitted that the failure to conduct elections in the stated wards and polling stations substantially affected the results. He relied on: Biyu Vs Ibrahim (2006) 8 NWLR (861) 151. He referred to Exhibit 3, Form EC8C(i), which he stated shows the voter strength in the disputed wards and submitted that if the votes cast in those wards were reduced from the total votes cast, the 1st respondent’s scores would be reduced from 19,186 votes to 10,984 votes. He submitted further that if the votes ascribed to the 1st respondent from the disputed polling stations in Chokoneze/Ife/Akpodim ward were subtracted from 10,984 votes it would further reduce the 1st respondent’s votes to 8,968 votes Based on this calculation he urged us to hold that the non-conduct of elections in the disputed wards affected the outcome of the election.

Learned counsel for the 1st respondent submitted that after the pre-hearing session the only ground of the petition left for trial was whether the election was invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act 2006. He submitted that the appellant made allegations of the commission of criminal offences such as the snatching of electoral materials and ballot boxes and thuggery. He submitted that the burden of proof rests squarely on the petitioner and that the standard of proof is beyond reasonable doubt. He referred to Section 138 of the Evidence Act and the cases of: Ogu Vs Ekweremadu (2005) All FWLR (260) 1 and Ogbu Vs Nnaji (1994) 4 NWLR (597) 87. He submitted that the appellant failed to prove that the 1st respondent had personally committed any of the acts alleged or that he had aided, abetted or procured the commission of any of the acts. He submitted that the appellant also failed to prove that any of the alleged acts had affected the result of the election to the advantage of the 1st respondent. For this reason he argued that the burden did not shift to the respondents. He referred to: Buhari Vs. Obasanjo (2005) 13 NWLR (941) 1: Yusuf Vs Obasanio 2005) 18 NWLR (956) 96 and Falae vs. Obasanjo (No.1) (1999) 4 NWI.R (599) 435. He also referred to the textbook: Law of Evidence in Nigeria (Substantial and Procedural) by Sebastine Tar. Hon at Page 28.

Learned counsel submitted that the appellant did not challenge the evidence of DW1, DW2 and DW3 to the effect that elections took place in the nine disputed wards of the constituency. He also referred to the Forms EC8A(1), EC8B(1) EC8C and EC8E tendered by the 2nd – 13th respondents through DW4, admitted by consent of all the parties and submitted that their establish the fact that the elections took place. He argued that if there is any burden on the respondents to prove that elections took place, it is a lighter burden on the preponderance of evidence. He submitted that the authorities of Ewo Vs Ani (supra) and Remy Sunday (supra) cited by learned counsel for the appellant are not applicable in the circumstances of the present case.

Learned counsel for the 2nd – 13th respondents submitted that by virtue of Sections 136 and 137 of the Evidence Act the burden of proving allegations of thuggery and violence and that elections did not hold in most of the constituency lay squarely on the appellant. He referred to the textbook. Law Governing Elections and Election Practice by Bon Nwakanma and Ngozi Olehi at page 412 and the case of Osawara Vs Eziruka (1978) 6-7 SC 135. He submitted that the purport of the decision in Ewo Vs Ani (supra) relied on by learned counsel for the appellant is that he who asserts positively must prove.

Learned counsel submitted that the evidence of PW1 amounts to hearsay and is therefore inadmissible. He relied on: Jolavemi Vs Alaoye (2004) 12 NWLR (887) 322; Adebanjo vs. Brown (1990) 6 SCNJ 1; and Section 88 of the Evidence Act. He urged us to discountenance paragraphs 5 – 7 of his written deposition for offending Section 89 of the Evidence Act.

With regard to the evidence of PW2 he urged us to discountenance his evidence as being unreliable. He noted that he was unable to name the 25 polling booths he said he visited and did not give details as to how he allegedly followed the perpetrators of electoral malpractice from booth to booth as alleged by him. He also observed that even though PW2 stated that he witnessed the snatching of ballot boxes by Bright Nwanne, he did not make any written complaint to any law enforcement agency or relevant authority and failed to tender any evidence to prove that the said Bright Nwanne was indeed arrested by the Police.

With regard to PW3, (Bright Ufoma), learned counsel observed that the deposition tendered through him at the lower Tribunal bore the heading “written deposition of Emmanuel Ugwu” and that the denied being Emmanuel Ugwu under cross-examination. He also observed that PW3 stated that he signed the deposition in his house and not before the commissioner for oaths. He urged us to discountenance the depositions of PW3, PW4, PW5 and PW6 for non-compliance with Sections 83 and 84 of the Evidence Act. In addition he contended that the evidence of PW6 amounts to hearsay as he admitted under cross-examination that he did not enter the house of one Bede Nzenwa where election materials were allegedly taken and used to concoct a fake result for the 1st respondent.

On proof of the commission of electoral (supra) and Okonkwo vs. Onovo (1999) 4 NWLR (597) 111. He submitted that the mere ipse dixit of the appellant’s witnesses on the snatching of electoral materials is not sufficient to establish an allegation of corrupt practices. He submitted that the appellant must prove that 1st respondent who was returned as the winner of the election committee the acts complained of or personally aided abetted, counselled or procured the commission of the alleged offences and that the corrupt practices affected the result of the election. He submitted that the appellant did not establish any nexus between the 1st respondent and the acts complained of or their perpetrators. He referred to Law of Evidence in Nigeria (Substantial and Procedural) (op cit.) at page 128. He submitted that the appellant also failed to prove that the alleged agents were permitted to act as they did or had general authority to so act. He cited the following cases: Yusuf vs Obasanio (supra):.Oyequn Vs Igbinedion (1992) 2 NWLR (226) 747; Falae vs. Obasanjo (supra) Adeola vs. Owoade (1999) 9 NWLR (617) 30: Buhari Vs Obasanio (supra) and Wali vs. Bafarawa (2004) 16 NWLR (898) 1.

Learned counsel submitted that the appellant did not tender any evidence to show how the alleged malpractices affected the results. He submitted that the calculations in paragraph 3.21 to 3.23 of the appellant’s brief ought to have been done in his petition and supported by evidence before the Tribunal. He submitted that the appellant failed to rebut the legal presumption provided by Sections 115 and 149(d) of the Evidence Act that the result of the election is correct and authentic.

He observed that the results tendered by the 2nd – 13th respondents were not contested and that the appellant in fact relied on the said results in support of his case. He urged the court to hold that the appellant failed to rebut the legal presumption of regularity of the results as declared by the 2nd – 13th respondents and therefore failed to discharge the burden of proof of his petition.

The appellant has argued that the burden of proof as to whether elections were held in the disputed wards lies on the respondents on the ground that the appellant who contends that elections did not take place in the disputed wards has no duty to prove a negative assertion. In order to determine this issue it is necessary to take another look at the pleadings to ascertain what the appellant’s case was at the lower Tribunal. The ground of the petition as stated in paragraph 7 (ii) thereof is that the election was invalid by reason of corrupt practice and/or non compliance with the provisions of the Electoral Act 2006. In paragraph 8 (b) of the petition the appellant pleaded as follows:

“The result of the elections as declared by the 4th respondent acting for the 2nd and 3rd respondents, by virtue of which the 1st respondent was declared the winner was wrought and wrongfully collated and computed having regard to the realities of the actual vote figures recorded in certain forms EC8A(i) and EC8B urged in the said election in certain wards. The election was also marred by irregularities and corrupt practices in certain wards while in some wards no elections took place rather some Chieftains of the Peoples Democratic Party who were working for the 1st respondent hijacked all the materials and carted same away.”

In paragraph 8.1 to 8.6 the appellant pleaded that ballot boxes and electoral materials were snatched in Amaumara. Onicha wards I, II, III and IV, Chokoneze/Akpodum/Ife and Udo Na Obizi wards and consequently no elections took place in those wards. He pleaded that in Ihitte ward there was wrong collation of results as well as irregularities and corrupt practices and that in ltu ward ballot boxes were snatched and results concocted in favour of the 1st respondent. The contention that elections did not take place in some wards was based on the allegation of the commission of electoral offences such as snatching of ballot boxes and manipulation of results. I have considered the authorities of Remi Vs Sundav (1999) 8 NWLR (613) 92 and INEC vs Ray (2004) 14 NWLR (892) 92 relied on by learned counsel for the appellants. In Remi Vs. Sunday (supra). It was the 1st respondent’s contention that although elections were concluded in all the units of two particular wards, the results upon which the appellant was returned as elected did not include those results. His contention was that if the results of those wards were collated and added to the final score he would have won a majority of the votes cast. He sought to be declared the winner of the election. The appellant on the other hand contended that no elections took place in those wards on the date of the election and therefore there was no return of votes from the said ward. The lower Tribunal found in favour of the 1st respondent. An appeal against the decision was allowed. This court held at page 105 B-C (supra) that the burden of proving that elections were conducted in the disputed wards lay on the respondents (as petitioners) who asserted the fact in their petition. This finding is in consonance with Section 136 and 137 of the Evidence Act, as he was seeking the benefit of the results of an election, which he maintained took place.

In INEC VS. RAY (supra) it was the contention of the 1st respondent that elections were held and results collated in 21/2 wards in his constituency while in the remaining wards no elections were held and no results collated. It was his case that in the wards where elections were held he scored the majority of votes. He prayed the Tribunal to hold that the 2nd respondent was not elected by a majority of lawful votes cast; that the 2nd respondent’s election was void; that he was duly elected by a majority of lawful votes cast at the election and an order causing him to be sworn in as the duly elected member for Agwu South Constituency in the Enugu State House of Assembly. At the trial he called collation agents as witnesses who testified that there were no elections in the wards disputed by the 1st respondent and no results submitted to them, they also tendered exhibits. The 2nd respondent also testified and tendered exhibits. The appellants’ witness testified that he distributed electoral materials to all the wards but did not visit all the wards. They did not tender any exhibits but relied on the results tendered by the 2nd respondent. The Tribunal granted the 1st respondents petition and ordered a bye-election to be conducted in the wards where elections were not conducted. The appellants appealed against the decision The Court of Appeal held that the burden of proof was on the 1st respondent who alleged that elections did not take place in certain wards. The Court held that the 1st respondent had discharged the burden on him by a preponderance of evidence and that the lower Tribunal rightly accepted and acted on the evidence. The court held that the secondary burden of adducing evidence in rebuttal shifted to the appellants by virtue of Section 137(2) of the Evidence Act and that they failed to discharge the burden. The appeal was dismissed.

I am of the view that these authorities and the case of Ewo Vs Ani (supra) do not advance the case of the appellant The purport of these decisions in line with the provisions of the Evidence Act is that the burden of proof of the existence of a particular fact lies on the person who asserts that fact in the instant case the initial burden lies on the appellant to establish the thuggery, ballot box snatching and concoction of results complained of before the burden would then shift to the respondents to proffer evidence in rebuttal. It was held in Ogu Vs Ekweremadu (2006) 1 NWLR (961) 255 at 281-282 F-A that proof of election malpractice or irregularity or misconduct depends on the nature of the conduct complained of where the allegation is simply that of some wrongdoing its proof would he on preponderance of evidence. Where the allegation borders on criminality the standard of proof is beyond reasonable doubt.

The court held that allegations of thuggery and disruption of elections are criminal acts. It was also held that where an appellant and his witnesses tried to establish that the election was aborted due to intervention of thugs who took away electoral materials, the onus is on the appellant to prove that there were such malpractices and non compliance that prevented him from winning the election and that the non compliance is substantial and that it substantially affects the result of the election. See also: Na-Bature Vs Mahuta (1992) 9 NWLR (263) 402.

From all that I have said above the onus was on the appellant to prove that the election could not take place in the disputed wards because of thuggery and snatching of ballot boxes. In the course of resolving the first issue. I found that the statements of PW3, PW4, PW5 and PW6 were rightly discountenanced by the lower Tribunal for not being in accordance with paragraph 1(1) (b) of the Practice Directions and for non compliance with Section 90(f) of the Evidence Act. I also upheld the finding of the lower Tribunal that the evidence of PW2 was not worthy of being accorded any probative value. The only evidence left in support of the petition was that of the appellant who testified as PW1.

In paragraphs 5, 6 and 7 of his written deposition at page 10 of the record he pleaded thus:

“5. That the votes ascribed to the 1st respondent by the 4th respondent who acted as the returning officer for the said election were not real scorers. The said votes did not emanate from real voting.

6. That no elections were held in 9 out of the 12 wards in the constituency. That no election took place in Ihitte Ward. Amaumara Ward, Itu Ward, Onicha Ward I, II, III and IV. Election also did not hold in Udo Na Obizi Ward. There was no election in 13 out of the 25 polling stations in the 12 wards.
7. That the failure to hold election in the said areas affected the outcome of the election substantially’”

Under cross examination by the 1st respondent he stated that elections in his ward were peaceful and that he remained in his ward after voting to monitor activities He stated that there were disturbances at the collation centre but did not know if there was fighting. Under cross-examination by learned counsel for the 2nd – 13th respondents he stated that he did not know what transpired in other wards until he received reports from his agents. At page 95 of the record the lower Tribunal held that the depositions in paragraphs 5, 6 and 7 of the petition failed to comply with Sections 88 and 89 of the Evidence Act The paragraphs were accordingly discountenanced for being hearsay and inadmissible. There is no appeal against this finding.

Even if the expunged paragraphs of PW1’s deposition and the evidence of PW2 were to be considered would they have been sufficient to discharge the burden of proof on the appellant? On his own showing, PW1 did not personally witness any of the alleged malpractices complained of. As observed earlier in this judgment the evidence of PW2 was unreliable. The evidence of PW2 was in respect of 25 polling units out of 136 polling units in the entire constituency. The allegation of snatching of ballot, boxes by Bright Nwanne remained an allegation. There was no evidence of any formal complaint to the Police or other relevant authority. The officer who allegedly arrested him was not called to testify. The alleged concoction of results was also not established. As submitted by learned counsel for the 2nd – 13th respondents the appellant has the additional burden of establishing that the 1st respondent committed the corrupt act personally or that he aided abetted counselled or procured the commission of the act See: Yusuf Vs Obasanjo (2005) 18 NWLR (956) 96 at 186 D-F and 122D – F: Falae Vs Obasanjo (1999) 4 NWLR (599) 435; Oyequn Vs Igbinedion (1992) 2 NWLR (226) 747; Adeola vs. Owoade (1999) 9 NWLR (617) 30. I agree with the judgment of the lower Tribunal that the appellant did not link the 1st respondent to any of the alleged malpractices. In these circumstances I am of the humble views that that the appellant failed to discharge the burden of Proof on him.

The respondents on the other hand testified through their witnesses that the elections were conducted peacefully in all the disputed wards. The 2nd – 13th respondents through their witness DW4, tendered Forms EC8A, EC8B, EC8C and EC8E in support of their evidence. Their evidence was not discredited under cross-examination. The appellant elected not to tender any exhibits but relied on those tendered by the respondents. The law is that there is a rebuttable presumption of regularity in favour of election results as declared by INEC. The burden lies on the party that disputes the correctness and authenticity of the results to lead rebuttal evidence. See: Buhari Vs Yusuf (2005) 13 NWLR (941) 1 at 255 C – D, H; 193 D; Nwobodo vs Onoh (1984) 1 SCNLR 1 and Omoboriowo Vs Ajasin (1984) 1 SCNLR 108. In the instant case the appellant failed to lead any evidence to rebut the presumption in favour of the election results. In the circumstances the second issue for determination is hereby resolved against the appellant.

In conclusion I find no merit in this appeal. It is accordingly dismissed. The judgment of the lower Tribunal delivered on 2/10/07 is hereby affirmed. Costs are assessed at N30,000.00 against the appellant in favour of the 1st respondent.

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Other Citations: (2008)LCN/2777(CA)