Michael Joe Onwudinjo V. Joseph Dimobi & Ors (2005)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
At the Anambra State House of Assembly election, held on 3/5/2003, the appellant as petitioner was candidate of All Progressive Grand Alliance (APGA) while 1st respondent was the candidate of the Peoples Democratic Party (hereinafter referred to as PDP) for ANAOCHA II Constituency.
At the close of election, the 1st respondent was declared the winner of the election and returned by the 4th respondent, Constituency Returning Officer. The appellant petitioned against the return of the 1st respondent. The petition had been struck out by the 1st tribunal on the ground that the appellant failed to join necessary parties. This court on 17/2/2004, ordered a retrial by another panel after striking out the offensive paragraphs. A new panel heard the petition and gave judgment on 6/9/2004 dismissing the petition.
Dissatisfied with this decision, the appellant has now appealed to this court filing 12 original grounds of appeal and 2 additional grounds. Also, in the course of the trial, the appellant had filed an interlocutory appeal challenging the ruling of the tribunal rejecting a document (list of distribution of ballot papers), which the appellant had sought to tender in evidence.
The appellant in his brief filed on 10/3/2005, submits the issues which arise for determination in this appeal as follows:
“(i) Whether the tribunal was right in holding that the mandatory requirement of paragraph 15 of the 1st Schedule to the Electoral Act, 2002, is not applicable to this petition, and what is the effect of non-compliance with the said requirement by the respondents?
(ii) Were all the Presiding Officers, who worked at the election necessary parties that ought to be joined as respondents in the petition?
(iii) Whether the tribunal was right in holding that the 2nd set of results tendered by the subpoened witness (5th respondent) was the appellants documents and being so, were at variance with his pleadings in the petition.
(iv) Did the tribunal carry out a proper evaluation of the evidence adduced by the parties at the trial?
(v) Whether the tribunal was right in refusing to admit in evidence the list of distribution of ballot papers used for the election?
(vi) Was the tribunal right in failing to consider, examine and evaluate the result sheets produced and tendered by the subpoened witness, especially Forms EC8A (exhibits U, U1 – U22; BB, BB1- BB14) and do the said results have any probative value?
(vii) Was the tribunal correct in up-holding the exclusion of the result for Neni Ward I in the final result of the election?
(viii) Who scored the majority of the lawful votes cast at the election?”
1st respondent in his brief of argument filed on 15/3/2005, identified the following four issues for determination of this appeal:
“4.01. Whether the trial tribunal was wrong, in refusing to uphold the petitioner’s objection to the replies for failing to file list of objections to the votes in the circumstances of the case?
4.02. Whether the trial tribunal was wrong, in disregarding evidence given against Presiding Officers and Police Officers, who were not made parties to the petition?
4.03. Whether the trial tribunal was wrong in striking out paragraphs 4(iv), (vi), (ix) and 4(xi) of the petition and in making the consequential orders in relation to paragraph (iii), (F) and (H) of the petition?
4.04. Whether the petitioner proved allegations of falsification, over-voting, thumb-printing, inflation of results and other irregularities.”
In their brief of argument filed on 10/3/2005, the 2nd – 25th respondents formulated the following three issues for determination of the appeal:
“(I) Whether the tribunal was right, in holding that the criminal allegations of corrupt practices, falsification and inflation of votes and thuggery were not proved?
(II) Whether the tribunal was right, when it held that paragraph 15 of the 1st Schedule to the Electoral Act, 2002, was not applicable to the facts of this petition.”
When the briefs were filed and exchanged, appellant filed reply briefs to the 1st and 2nd-25th respondents’ briefs on 22/3/2005 and 15/3/2005 respectively.
On the 18/4/2005, when the appeal was heard, learned Counsel for the appellant referred the court to the appellant’s motion filed on 22/3/2005 praying that the respondents’ “Notice of intention to contend that the judgment should be affirmed on grounds other than those relied on by the court below should be struck out. The reason being that the notice is incompetent as same was neither filed by the 1st respondent nor his counsel but by a stranger to the appeal. Upon the careful consideration of the argument of respective counsel for the appellant and the first respondent, this court dismissed the appellant’s motion as the 1st respondent’s notice was considered properly filed.
The 1st respondent in his brief took objection to the appellant’s 13th ground of appeal and issue six distilled therefrom. It is contended that ground 13 of the grounds of appeal and issue 6 formulated therefrom and the argument proffered thereon are set out in paragraphs 421, 422, 423 and 424 of the appellant’s brief of argument are incompetent and should be discountenanced for the reason that the said ground of appeal did not arise from the judgment appealed against. In other words, that it is not an attack or challenge on the validity or otherwise of the ratio decidendi of the judgment but rather an attack on what was alleged to have been included in the written address written by the appellant and petitioner’s counsel. Secondly, that the issue or complaint raised in ground 13 is a new one. It was not raised or validly raised in the court below. Moreover, that the leave of this court was not sought and obtained before the issue was raised.
To properly bring out the issue at stake here, I will set out ground 13 of the amended grounds of appeal, without the particulars:
“Ground 13
The Honourable Tribunal erred in law, by failing to examine and evaluate the documentary evidence (especially result sheets) produced by the parties at the trial.”
It is clear from this ground that the substance of the complaint in the ground is simply that the lower tribunal failed to evaluate the documentary evidence placed before it at the trial, in its judgment. This complaint is a direct attack on the judgment of the tribunal. It was the appellant’s case at the tribunal that the 1st respondent did not score the majority of lawful votes cast at the election because the booth results on the basis of which the 1st respondent was returned were fake and were written outside the election arena. It was also the appellant’s case that it was he who scored the majority of lawful votes cast at the election, based on the booth results returned by agents at the election. The lower tribunal decided that the appellant did not prove any of the averments in the petition to warrant granting him the reliefs sought in his prayers and proceeded dismiss the petition. It is trite that for the tribunal to arrive at this conclusion, it must evaluate the entire evidence placed before it. In a situation such as in this case the complaint is that the trial court failed to evaluate the evidence adduced before it, the duty placed the appellant is to specify the evidence, which the trial court fail to evaluate. See Ejoh v. Wilcox (2003) 13 NWLR (Pt.838) 488 510(B-C).
It is also being contended that the issue of complaint raised in ground 13 was not validly raised in the court below. The question that seems to arise here is: What issue or complaint did the appellant not raise in the lower tribunal? The issue of non-evaluation evidence could not possibly have been raised as the non-evaluation became apparent in the judgment itself. The evidence which court failed to evaluate was, of course, produced before the court and their probative value duly canvassed in the final address of counsel. This ground being a direct attack on the judgment of the court cannot properly construed as a new issue in respect of which the leave court is required. I must hold, in the circumstances, that preliminary objection lacks merit. I therefore dismiss it according having disposed of the 1st and 2nd-25th respondent preliminary objections, I will now consider the issues raised by the respective parties. However, I do not see the need of proliferation the issue. Hence, whilst issues one, two, are taken separately, seven and eight will be considered together. Issues three, four, and six a taken together, whilst issue 5 will be considered separately, finally. The first issue is on whether the lower tribunal was right in holding that the appellant did not make out a case as to entitle him to any the reliefs claimed.
Paragraph 15 of the 1st Schedule to the Electoral Act, 2002, provides as follows:
“When a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or return at the election, shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.”
This paragraph is only applicable, where the respondent defending the election or his return at the election, rejects some votes or objects to some votes in which case he is expected to set out in his reply the particulars of the votes he objects to; the reasons for his objection against such votes and showing how he intends to prove at the hearing that the petitioner is not entitled to succeed. Secondly, the paragraph is applicable where the votes are declared by the statutory body, in this case the INEC, since it is only the votes recorded by it that enjoys the presumption of correctness and genuineness. It cannot be otherwise as this will be imposing the burden of proof on the respondent to disprove the petitioner’s spurious votes and this will be inconsistent with S. 137(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. The words of paragraphs 15 of the 1st Schedule reproduced above are unambiguously clear. The provisions of the paragraph will apply when the petitioner is claiming that he had the majority of the lawful votes cast at the election.
The claim of the appellant in his petition as contained in paragraphs 3 to 4 is very clear. It is that the election was marred by irregularities and should be nullified. A successful prayer that the election was marred by irregularities can only result in the nullification of the election and not return of the petitioner. See section 136(1) of the Electoral Act, 2002. I agree with the learned counsel for the 2nd-25th respondents that paragraph 15 of the 1st Schedule to the Electoral Act, 2002, did not set out any particular form for the list of objections. Therefore paragraphs 3(III), 4(XI) and (XII), 5, 8, 10, 11, 12, 13 of the 1st respondent’s reply satisfy the requirements of the said paragraph 15. See Mike Anedu v. John Aronu (Unreported) CA/E/EPT/39/2003 delivered on 2/12/2004.
The second issue is a complaint that the trial tribunal excluded lawful evidence of the appellant on the wrong notion that some presiding officers who worked at the election, ought to have been joined. Appellant contended that the conclusion of the tribunal that he complained against the conduct of the presiding officers who worked in all the booths in respect of which Forms EC8A, the results, were tendered as exhibits, was a wrong conclusion. It is submitted that no iota of an allegation against the conduct of any presiding officers in the wards.
It is noteworthy that this court ordered the retrial of the petition after offending paragraphs of the petition must have been struck-out. The trial tribunal then struck out paragraphs 4(iv), (vi), (ix) and 4(xi). In these paragraphs, the petitioner made serious allegations against some police officers and INEC ad hoc staff that were assigned to polling booths. Neither the police officers nor the INEC staff in charge of polling booths as presiding officers who were alleged to have wrongly altered results, allowed over-voting and illegal thumb-printing of ballot papers were joined as parties to the petition.
Paragraphs in an election petition containing allegations, whatsoever, against persons who participated in the conduct of the election that are not made parties, must be struck-out. Similarly, where there is evidence in support of such averment, the evidence must be disregarded by, the court. See Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 423.
In paragraph 4(iii) of his petition, the appellant pleaded thus:
“The 2nd respondent allowed itself to be hijacked by PDP by deliberately appointing agents, and card-carrying members as Ward Returning Officers, Supervisory Presiding Officers (SPO) and Presiding Officers who wrongly entered results in favour of PDP candidates in a most reckless manner.”
I agree with the 1st respondent that by the above averment, all the presiding officers were indicted of wrongly entering results in favour of PDP candidates with reckless abandon. The law requires that in order to establish this allegation and other similar allegations of “over-voting and illegal thumb-printing of ballot papers” the petitioner should have called witnesses who were his agents who tendered the EC8As results believed to be the “genuine” as against EC8As results that were produced by INEC accredited officers and tendered by 5th respondent, the Electoral Officer. I do not accept the argument put forward by the appellant that he did not complain about the conduct of the presiding officers other than those joined by him as parties. 2nd respondent was subpoened to produce all the Forms EC8As, EC8Bs and EC8Cs. This is to show that these were products of falsification, inflation or alteration. The presiding officers in charge of the booths from where “genuine” EC8As or “fake” EC8As emanated ought to be made parties in the petition. It is noteworthy that the appellant’s petition was premised on falsification of results not only on EC8Cs but also EC8As and EC8Bs. This is what the appellant tried to establish throughout the trial at the tribunal.
He however, failed to join the presiding officers even when he was contesting the results as released by INEC, which are presumably based on EC8As, prepared by the various presiding officers.
Allegations of irregularities in polling stations and ward collation centers as far as they relate to the conduct of the election are direct indictment of the officers supervising those units whether they are specifically mentioned by their names or not. A situation like this arose in the case of Asikpo v. Ekene (1999) 5 NWLR (Pt. 604) 578. This court held that it is mandatory to join presiding officer, electoral officer or returning officer, where there are allegations of electoral malpractices against them. See also Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Gbadamosi v. Azeez (1998) 9 NWLR (Pt. 566) 471 at 475.
I agree with the learned Counsel for the 1st respondent that the trial tribunal was not wrong in disregarding evidence given against presiding officers and police officers who were not made parties to the petition. In the circumstances, I resolve issue two against the appellant because by his pleadings and evidence he indicted presiding officers, but did not deem it necessary to make them parties contrary to section S. 133(2) of the Electoral Act, 2002.
Issues three, four and six formulated by the appellant are considered together. These issues have to do with the 2nd set of results tendered by the witnesses called by the appellant and their examination and evaluation by the tribunal.
In the course of the trial, the appellant issued a subpoena duces tecum on the 2nd respondent who in turn delegated 5th respondent, the Electoral Officer to produce and tender the result a sheet on the basis of which 1st respondent was returned. It was on this basis that the 5th respondent produced INEC copies of the result, which were tendered in evidence. The appellant proceeded to impugn these results by tendering his own copies of the results returned to him by his agents. The tribunal dealt with these two sets of results and held that the exhibits tendered in evidence by PW 1 and through a subpoena duces tecum were appellant’s documents and were at variance with his pleadings and the evidence goes to no issue. Appellant cannot disown the second set of documents tendered by his witness. Appellant is contending that the second set of documents tendered by his witness were merely to discredit the same. The documents tendered without objection in support of appellant’s case were exhibits U, U1, U2, NN and NN2. A party such as the appellant who has tendered a document in a court of law and it is admitted as an exhibit at the end of the litigation either “sail joyfully with it in a boat of victory or sink sorrowfully with it in a boat of defeat”. He cannot be a beneficiary of both at the same time. See Attorney-General, Enugu State v. AVOP Plc. (1995) 6 NWLR (Pt.399) 90 at 120-121.
The appellant having tendered the second set of documents cannot discredit or dissociate himself from a portion of the document and associate himself with the other portion. Moreover, the documents were not pleaded by the appellant and the evidence led by him and his witnesses to discredit the document were at variance with what was pleaded. Where evidence of plaintiff is at variance with the averment in the statement of claim the court should dismiss the claim by the plaintiff: See Mohammed v. Klargester (Nig.) Ltd. (1992) FWLR (Pt. 127) 1078, (1996) 1 NWLR (Pt. 422) 54.The trial tribunal was therefore right, when it held that the 2nd set of documents were not tendered by the 2nd respondent, but by the petitioner through a subpoena duces tecum, and held that they were his own documents and were at variance with his own pleadings in the petition and the evidence goes to no issue. Appellant contended in his brief of argument in issue six that the court did not consider, examine and evaluate the result sheets produced and tendered by the subpoened witness. I must say that the method of evaluation of evidence as prescribed in the case of Mogaji v. Odofin (1978) 4 SC 91, is not sacrosanct. There is no set pattern or fixed method of evaluation of evidence by a trial Judge. All that is required of him is that he must consider the totality of evidence proffered by either side having regard to the drift of the evidence before him.
The trial tribunal meticulously gave reasons for its findings. For instance, in respect of Neni Ward II, the tribunal found that the complaint of the appellant in this ward was similar to that of Obeledu Ward. His complaint with Form EC8C was alleged to have been altered at the constituency collation. Against this allegation, the tribunal considered the evidence of PW1, PW6, PW7, PW11 and the appellant (PW 17), and exhibits P, P1-P11, Form EC8 A’s and exhibit O-Form EC8B. Also, exhibits BB, BB1-BB 14, Form EC8As and K.K., Form EC8B tendered were considered. PW6 was the ward collation agent while PW7 and PW11 were appellant’s polling agents for units 003 and 008 respectively. The evidence of the appellant was that he disagreed with the exhibit BB series and exhibit KK as fake results and agreed with exhibits P, P1-P11 and exhibit Q as genuine results. The tribunal found that polling agents PW7 and PW11 gave evidence in respect of polling units in which presiding officers were not joined and also that there was no evidence to show that they were INEC accredited agents. As for PW6 the tribunal held that he claimed that he was collation agent, but there was unchallenged evidence that he was a member of the House of Assembly under PDP ticket as at the time of election; hence, there was no way he could be an agent of the APGA candidate. The tribunal also found that the appellant did not make available Form EC8C, which was allegedly altered: PW1 and PW17 were not present, when the results were collated at polling units and ward level hence their testimony goes to no issue. It is for these reasons, the tribunal found that the appellant has not proved the allegation under paragraph 4(XIII)C of the petition.
The tribunal after evaluation, ascription of probative value and proffering of the evidence in all the wards gave further reasons for disbelieving the evidence led by the appellant and his witnesses. It is because all the witnesses called by the appellant with the exception of PW2 and PW8 were party members or sympathizers who were interested in ensuring the success of the petition than telling the truth. On the testimony of PW2 and PW8 who said they worked as presiding officers at the election, the tribunal observed that they did not tender their letters of appointment or any other evidence from INEC to show they actually worked as presiding officers.
It has not been effectively shown that the findings of facts by the tribunal are either perverse or that there is insufficient evidence to support the findings. This court cannot therefore interfere and or disturb the findings of the trial tribunal. It is settled law that the evaluation of evidence and ascription of probative value to such evidence are primary functions of the trial court, which saw, heard and assessed the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of this court to substitute its own views for the views of the trial court.
Appellant also insinuated that the result sheets tendered by its own witness were either written by the same person or that they contain the same serial numbers. It is also contended that the tribunal refused to look at these exhibits. It is noteworthy that the appellant did not plead in his petition that the results used by INEC to make the return in the election were forged or altered. Neither did he plead the fact of one person writing the Form EC8A and no issue was joined. The appellant in his pleadings averred that the election at the primary units where Form EC8As were used were free and fair in 6 wards. In his prayers, appellant sought that the results of the election in Akwaeze Ward, Aguluzoigbo Ward and Nri Ward II should be cancelled given the high level of irregularities and manipulations with the said ward elections. It is at the trial that the appellant for the first time raised issues of forgery, alteration, and use of same serial result sheets. As I have observed, issues were never joined. It is trite law that parties are bound by their pleadings and evidence given on matters not pleaded goes to no issue.
At the trial, appellant raised the issue of results being written by the same person midway at the hearing. Respondents raised an objection, which the trial tribunal in its ruling sustained.
In issue 5, the appellant has contended that the tribunal was wrong in refusing to admit the list for distribution of ballot papers used for the election. I do not think that this issue does arise, because the trial tribunal did admit the distribution list as exhibit ‘PP’ through PW2 (Ilozumba Leonard) in the course of his evidence-in-chief despite objection of the respondent’s counsel.
Again, at page 463 of the record, the first page of exhibit PP was further admitted as exhibit ‘PP’. It is apparent from the record above that this issue is one which should never have arisen as there is no decision of the tribunal below on the admissibility of the distribution list against the appellant that can be questioned on appeal. The submission of the appellant in issue 5 of his brief by reason of the foregoing goes to no issue and I so hold.
On the whole, this appeal lacks merit. It is hereby dismissed.
The decision of the lower tribunal is affirmed. I assess costs of N7,000.00 in favour of the 1st respondent.
Other Citations: (2005)LCN/1744(CA)
