Mr. Jethro Funsho Oni (Alias Chop Chop) V. Aiyenale Fred Jimoh & Ors (2008)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the Governorship/Legislative Houses Elections Tribunal Kogi State, holden at Lokoja delivered on 6/8/07.

The brief background facts of this case are that both the 1st Respondent on the platform of Action Congress (AC) and the Appellant on the platform of Peoples Democratic Party (PDP) contested for membership of Kogi State House of Assembly representing the Kabba/Bunu Constituency in the 14/4/07 general elections in Nigeria.

At the close of the elections, the Appellant was declared the winner on the ground that he scored the majority of the lawful votes cast at the said ejection.

Dissatisfied with the outcome of the election, the 1st & 2nd Respondents filed a petition at the trial Tribunal on 12/5/07 challenging the election and return of the Appellant. The said petition was anchored on the grounds that;

(a) the election was invalid by reason of corrupt Practices and or non-compliance with the Electoral Act, 2006 and

(b) the Appellant was not duly elected by majority of the lawful votes cast as the election and was not duly returned as the winner of the April, 24, 2007 House of Assembly of Kogi State for Kabba / Bunu Constituency.

The 1st & 2nd Respondent premised their petition on the following alternative ground:

An order of the trial Tribunal nullifying the Election to the Kogi State House of Assembly for Kabba/Bunu Constituency held on 14/4/07 and order for fresh election.

The Appellant duly filed a Reply to the petition.

The 3rd – 116th Respondents on the one side and the 117th Respondent on the other made attempts by way of applications for leave to file their Replies to the petition out of time. They were however refused in the considered rulings of the trial Tribunal. These are contained in pages 232 – 235 and pages 228 – 230 of the record respectively.

In proof of the petition, the 1st & 2nd Respondents called ten witnesses. They also tendered exhibits marked Exhibits 1 – 1K, 1L and 2-2K.

The Appellant in his defence called eleven witnesses including himself and tendered exhibits marked Exhibits R1 – R10 and 10a.

At the close of trial, the trial Tribunal ordered parties to file and exchange written addresses which the parties obeyed. The written addresses were adopted by the parties’ counsel on 20/7/07 before the trial Tribunal. On 6/8/07, in its judgment, the trial Tribunal found in favour of the 1st & 2nd Respondents and nullified the election of the Appellant on the grounds that the Appellant was not validly returned, the election having been vitiated by violence.

The Appellant was not happy with the said judgment of the trial Tribunal, hence, he filed this appeal against all the Respondents herein vide his notice and grounds of appeal containing sixteen grounds of appeal dated and filed on 24/8/07. The notice and grounds of appeal are contained in pages 334 to 354 of the record.

From the sixteen grounds of appeal, the learned senior counsel for the Appellant distilled six issues for the determination of the appeal in his brief of argument dated 6/9/07 and filed on 12/9/07. The six issues read thus:

1. Whether upon a careful and dispassionate evaluation of evidence in this case, the National Assembly/Governorship And Legislative Houses Election Petition Tribunal sitting in Lokoja, Kogi State was right in believing the evidence of the 1st Respondent in his Statement, evidence of P.W4 and p.W7 regarding the spread of violence and thuggery on the ground that they were not discredited notwithstanding the evidence of the Appellant and his witnesses including R.W 1and R.W4 in rebuttal.
2. Whether the entire trial including the Judgment of the National Assembly/Governorship and Legislative Houses election Petition Tribunal was not altogether a nullity for gross violation of the doctrine of fair hearing by reason of the Tribunal disallowing the 3rd – 117th Respondents from filing their respective Replies in defence of the petition and also for entertaining and acting on averments in the petition and evidence thereof in relation to allegation of violence, thuggery, intimidation of voters et al against several persons not parties to the petition to the prejudice of the Appellant.
3. Whether the trial Tribunal was right in acting on speculation as well as outside the pleadings of the 1st and 2nd Respondents,

Whether the 1st and 2nd Respondents discharged the requisite burden of proof on them to justify the conclusion of the trial Tribunal that the atmosphere in Kabba on 14th April, 2007, the day of election was bedeviled with violence and thuggery, that the election in the nine (9) wards of Kabba was void by reason of malpractices, that the thuggery and violence amounted to malpractices which substantially affected the result of the election and that the Appellant was not validly returned, the election having been vitiated by the thuggery and violence thereby entering judgment for the 1st and 2nd Respondents by nullifying the election of the Appellant.

5. Whether having regard to the state of pleadings and evidence on printed record, the trial Tribunal was right in coming to the conclusion that over-voting occurred in Otu, Egbeda and Okedayo wards and that the picture painted before the Tribunal was such that 90-100% turn out of voters recorded in Asuta, Odo Akete, Okekoko, Odolu, Aiyewa and Ayeteju wards was unbelievable in that there was evidence of violence, thuggery and intimidation of voters.
6. Whether the learned Judges of the trial Tribunal were right when they held and / or came to the conclusion that Exhibits ”R10″ and ”R10A” were doctored and that it was not necessary for the 1st and 2nd Respondents to plead and prove two sets of results before proving alleged malpractices regarding falsification of result .

In response to the appeal, the 1st Respondent’s brief of argument dated 20/9/07 was filed on 21/9/07 by his learned counsel.

In it, the 1st Respondent’s learned counsel adopted wholly the six issues formulated by the Appellant for the determination of the appeal.

The Appellant’s learned senior counsel after he was served with the 1st Respondent’s brief of argument, further ‘filed on 28/9/07 the Appellant’s Reply in respect thereto.

Further to the main appeal, the 117th Respondent, the Commissioner of Police, Kogi State who was equally aggrieved with the judgment of the trial Tribunal, hence he duly filed an appeal against all the Respondents therein, vide a notice and grounds of appeal dated 24/8/07 containing two grounds of appeal. They read thus:

“GROUND ONE

Judgment is against the weight of evidence.

GROUDO TWO

The learned Chairman and Members of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal were in fundamental breach of all known principles of fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 when they per-emptorily shut out the Appellant herein from defending the petition by disallowing him from filing his Reply to the petition thereby rendering the entire trial a nullity.”

The 117th Respondent/Appellant’s brief of argument was filed on 12/9/07 by his learned counsel. In the brief, two issues were formulated for the determination of the appeal. They are:

“1. Whether the refusal by the Honourable Court to grant the appellant’s application for enlargement of time to enter appearance and file a Reply to the petition was not a denial of the appellant’s constitutional right of fair hearing granted under Section 36(1) of the Constitution of the Federal Republic of Nigeria.

2. Whether the decision of the Honourable Tribunal is not unreasonable in the circumstances of this case.”

The 1st Respondent in the main appeal is also the 1st Respondent in the appeal of the C.O.P, Kogi State. His learned counsel filed for him on 25/9/07 the 1st Respondent’s brief of argument. In the 1st Respondent’s brief of argument, a preliminary objection was raised on the grounds that the, 117th Respondent/Appellant lacked the “locus standi” to file his appeal and that the appeal was incompetent because no issue was formulated in respect of ground two of the appeal. The arguments in respect of the preliminary objection are contained in the 1st Respondent’s brief of argument. The 1st Respondent’s counsel further raised one issue for the determination of the appeal. This reads thus:

“Whether the Judgment is against the weight of evidence. ”

After the 1st Respondent’s brief of argument was served, the 117th Respondent/Appellant’s Reply Brief of Argument dated 25/9/07 in response thereto was filed on the same date by his counsel.

The 3rd -114th Respondents were also dissatisfied with the judgment of the trial Tribunal. They therefore filed an appeal vide their notice and grounds of appeal dated 24/8/07 and duly filed. The

said notice and grounds of appeal contained two grounds of appeal.

These are:

“GROUND ONE

Judgment is against the weight of evidence.

GROUND TWO

The learned Chairman and Members of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal were in fundamental breach of all known principles of fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 when they per-emptorily shut out the Appellants herein from defending the petition by disallowing them from filing their Reply to the petition thereby rendering the entire trial a nullity.”

The brief of argument of the 3rd – 114th Respondents/Appellants dated 13/9/07 was filed on the same date. In the said brief of argument, no issue was formulated for the determination of the appeal from the two grounds of the appeal.

The 1st Respondent in the appeal of the 3rd – 114th Respondents/Appellants filed the 1st Respondent’s brief of argument in respect thereto. The said 1st Respondent’s brief of argument dated 28/1/08 was filed on the same date. In it, two issues were raised by the 1st Respondent’s learned counsel for the determination of the appeal. These are:

“1.Whether the judgment is against the weight of evidence?

2. Whether Appellants’ fundamental right as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria was breached by the trial tribunal?”

By an order of this court, all the three appeals reiterated supra were consolidated on 29/1/08, On that same date, the three appeals were heard by this court.

Mr. P. A. Akubo SAN adopted and relied on the Appellant’s brief of argument filed on 12/9/07 and the Appellant’s Reply brief filed on 28/9/07 in the first appeal. In amplification of the briefs filed for the Appellant, his learned senior counsel submitted that the PDP and some of its named members against whom there were allegations of criminality ought to have been joined as respondents in the petition filed by the 1st & 2nd Respondents before the trial Tribunal. The said allegations in essence were not only baseless and groundless, but they were against non-parties. The 1st & 2nd Respondents thereby failed to discharge the requisite burden of proof of beyond reasonable doubt cast on them by Section 138 of the Evidence Act.

In further contention for the Appellant, the learned senior counsel urged this Court to note that the claims of the 1st & 2nd Respondents are contradictory. In one breath, they alleged that there was no election in the nine wards of the Constituency under consideration and in the same breath, they alleged that in those same wards, there were over-voting. Not only that, they failed to tender in evidence, the relevant voters’ registers in proof of the alleged over voting in compliance with the provisions of Section 54(2) of the Electoral Act, 2006. The allegation of falsification was therefore not established. Reliance on this position was also placed on the case of: Haruna Vs. Modibbo (2004) 16 NWLR (Pt. 900) p. 487 at p. 543.

Consequently, the finding of the trial Tribunal that there was over voting in the said wards is legally wrong. This Court was therefore urged to upturn the judgment of the trial Tribunal and allow this appeal.

Mr. Joe Abrahams, the Hon. Attorney-General & Commissioner for Justice, Kogi State adopted and relied on the 117th Respondent/Appellant’s brief of argument filed on 12/9/07 and the 11th Respondent/Appellant’s Reply brief of argument filed on 5/10/07 in the second appeal. In further elaboration of the said briefs, the learned counsel for the 117th Respondent/Appellant argued that the refusal of the 117th Respondent/Appellant’s application filed at the trial Tribunal to be allowed to participate in the trial amounted to a breach of his constitutional right to fair hearing. That denial rendered the entire proceedings and judgment of the trial Tribunal invalid, null and void. Under the provisions of the Electoral Act, 2006, the trial Tribunal is empowered to grant a party an extension of time for the doing of an act therein if the party has reasonable reasons in respect thereof. The conduct of the election touched on the 117th Respondent/Appellant, hence, he was a necessary party, he ought to have been allowed to participate in and not shut out from the petition proceedings. Reliance was placed on the case of: Haruna Vs. Modibbo Supra. This Court was urged to allow this appeal and declare the judgment of the trial Tribunal a nullity.

Mr. S. G. Zagana, learned counsel for the 3rd – 114th Respondents/Appellants adopted and relied on the 3rd – 114th Respondents/Appellants’ brief of argument filed on 13/7/07 in the third appeal. He emphasized the fact that the refusal by the trial Tribunal of the application of the 3m – 114th Respondents/Appellants for extension of time for the filing of their reply to the petition in dispute is a breach of their right to fair hearing. They were foreclosed and completely denied an opportunity to defend themselves against the petition despite the fact that under the Practice Direction, 2007, they were entitled to have time extended for them to enable them file their said reply. The learned counsel urged this Court to allow this appeal. In reply, Mr. N. A. Okoye, the learned counsel for the 1st Respondent adopted and relied on the 1st Respondent’s briefs of argument filed on 21/9/07, 25/9/07 and 28/1/08 in the first, second and third appeals respectively.

In respect of the first appeal, learned counsel argued that the Appellant’s case in the trial Tribunal having been riduled with discrepancies, the trial Tribunal properly found in favour of the 1st Respondent.

Regarding the second appeal, the learned counsel contended under his notice of preliminary objection that the 117th Respondent/Appellant’s motion for extension of time to file his Appellant’s brief of argument out of time was not heard and granted, thereby rendering the said brief incompetent. He urged this Court to discountenance the said brief.

As touching on the third appeal, the 1st Respondent’s counsel amplified his brief in response thereof and canvassed that the principle of fair hearing goes hand in hand with due process of law. The 3rd – 114th Respondents/Appellants in his opinion fully participated in the proceedings at the trial Tribunal and merely filed a motion for enlargement of time to file their reply to the petition after the petitioners had closed their case. The trial Tribunal rightly refused and held that their application was not justifiable. Consequently, the allegation of denial of fair hearing is baseless.

The learned counsel for the 1st Respondent urged this Court to dismiss the three appeals.

Replying on points of law, Mr. P. A. Akubo SAN, for the Appellant in the first appeal urged this Court to hold that because the 2nd Respondent had failed to file a reply to the first appeal, the 2nd Respondent is deemed to have conceded to the said appeal.

Mr. Joe Abrahams, the learned Attorney-General and Commissioner for Justice, Kogi State for the 117th Respondent/Appellant replying on points of law pointed out that the said motion for extension of time to file the 117th Respondent/Appellant’s brief out of time was actually filed in error. The 117th Respondent/Appellant was within time in filing the said brief, for he was in that regard not a Respondent but an appellant in the second appeal. The learned AG & CJ contended that the notice of preliminary objection of the Appellant in the first appeal should be deemed abandoned as it offends the rules of this Court as it was not properly commenced pursuant to the provisions of Order 10 of the Court of Appeal Rules, 2007. On this legal position, reliance was placed on the case of: Dansuma v. Inna (2007)17 NWLR (Pt. 1063) p. 391 at Pgs. 409 – 411.

Mr. S. G. Zagana replying on points of law submitted for the 3rd – 114th Respondents/Appellants that, the 3rd – 114th Respondents/Appellants were only allowed to cross-examine the petitioners’ witnesses; while they were denied the opportunity to adduce evidence in their defence.

I shall now consider and resolve the three consolidated appeals seriatim.

FIRST APPEAL

ISSUE ONE

“Whether upon a careful and dispassionate evaluation of evidence in this case, the National Assembly/Governorship And Legislative Houses Election Petition Tribunal sitting in Lokoja, Kogi State was right in believing the evidence of the 1st Respondent in his Statement, evidence of P.W4 and P.W.7 regarding the spread of violence and thuggery on the ground that they were not discredited notwithstanding the evidence of the Appellant and his witnesses including R.W 1 and R.W.4 in rebuttal.”

The learned senior counsel for the Appellant submitted that a careful and dispassionate evaluation of the evidence in this case will show that the evidence led by the 1st and 2nd Respondents particularly regarding the issue of violence and thuggery was not only self defeating but thoroughly discredited and controverted.

Hence, if the trial Tribunal had carefully and dispassionately evaluated the evidence in this case, it would have arrived at a conclusion other than that enumerated in paragraph 4.02 of the Appellant’s brief of argument.

Contrary to the conclusion of the Tribunal, the evidence of the 1st Respondent (PW4) as well as that of PW3 were thoroughly discredited and profoundly controverted by the Appellant and his witnesses hence undeserving of any credibility whatsoever. Clearly, the evidence of the 1st and 2nd Respondents regarding thuggery and violence collapsed like a pack of cards and was devoid of any credibility. It follows that the conclusion of the lower Tribunal to the effect that 1st Respondent’s evidence that thugs were led by RW 1 and RW 4 was not discredited or shaken under cross-examination is bound to be faulty.

Appellant’s learned senior counsel submitted that the Tribunal and indeed any court, contrary to what transpired in this case, has a duty to properly and fully evaluate every evidence before reaching a conclusion. See the cases of:

(1) Usman v. Garke (2003) 14 NWLR (Pt. 840) p. 261 at p. 279;

(2) Falomo v. Onakanmi (2005) 11 NWLR (Pt. 935) p. 126 at p. 155 and

(3) Ogbogu v. Ugwuegbu (2003) 4 SCNJ p. 79 at p. 102,

Therefore if the trial Tribunal had considered or properly evaluated the evidence of the Appellant as adduced before it, it would not have come to the conclusion reached. Having failed to do so, the trial Tribunal did not have a balanced scale and this prejudiced the Appellant’s interest.

Replying to issue one, the Respondent’s learned counsel submitted that when the statements on oath of witnesses of the Petitioners and their oral testimonies in court are read together, it will be revealed that the witnesses were neither contradicted nor discredited under cross-examination. However, the Appellant’s witnesses denied all allegations made in the petition. Their evidence was that election was held and same was free and fair. Trouble started when the extent to which the election was free and fair could only be explained by INEC.

It was contended for the 1st Respondent that the trial Tribunal believed the evidence of the Petitioners and their witnesses and disbelieved that of the Appellant and his witnesses and gave judgment in favour of the Petitioners. The 1st Respondent/Petitioner tendered a copy of form EC.SC (i). The trial Tribunal in general painstakingly considered and properly evaluated the evidence before it in line with the pleadings and came to the inescapable conclusion that the election was marred by violence and malpractices which can not be allowed to stand. On this stance, reliance was placed on the case of: Usman v. Garke (2003)14 NWLR (Pt.840)p. 261 at p. 279.

The grouse of the Appellant under this issue is that the trial Tribunal did not properly evaluate the evidence adduced at trial by the Appellant vis-a-vis that adduced by the 1st & 2nd Respondents. I have given due consideration to the submissions of both counsel as well as the relevant portions of the record of proceedings, the exhibits in evidence before and the judgment of the trial Tribunal. The position of the law regarding the propriety of an appellate court delving into the matter of reviewing the evidence adduced before a trial court or tribunal is trite. It is the primary duty of a trial court to evaluate evidence and ascribe probative value to it. The rationale behind this is that, it is the trial court that has the opportunity and privilege of seeing, hearing and assessing witnesses called in the proof of issues before it. When the credibility of witnesses based on their demeanor is in issue and the evaluation of evidence has been done in accordance with all laid down principles of law, the trial court’s findings would not be disturbed by an appellate court. The exception to this general rule is that, where it is shown that the findings and conclusions of a trial court could not properly flow from the evidence adduced before it, such findings and conclusions will be upturned for that reason by an appellate court.

It is established law that an appellate court is in as good a position to evaluate evidence as a trial court, come to different findings and substitute such findings for those of the trial court in appropriate cases. The function of an appellate court on a question, of facts is however limited to ensuring that the evidence tendered before the trial court upon which its decision of facts was based was properly accepted or rejected. An appellate court must ensure that the evidence called by parties to the conflict was put on the appropriate sides of the imaginary scale and weighed one against the other. The trial court must have correctly admitted and assessed the evidence before it. The properly admitted evidence must equally be found sufficient to support the decision following the inferences drawn therefrom. See the cases of:

(1) Ngillari v. N.I.C.O.N (1998) 8 NWLR (Pt. 560) p.1;

(2) Egesimba Vs. Onuzurike (2002) 15 NWLR (Pt. 791) 466;

(3) Joe Golday Co. Ltd v. C.D.B. Plc. (2003) 5 NWLR (Pt. 814) p. 586:

(4) Gaji v. Paye (2003) 8 NWLR (Pt. 823) P. 583 and

(5) Julius Berger (Nig.) Plc. Vs. Nwagwu (2006) 12 NWLR (Pt. 995) p. 518 .

The contention for the Appellant is that the evidence of the 1st Respondent and PW3, one of his witnesses were thoroughly discredited and profoundly controverted by the evidence of RW1 and RW4. That the conclusion of the trial Tribunal therefrom was wrong, for in the opinion of the Appellant’s learned counsel, the trial Tribunal did not have a balanced scale thereby prejudicing the interest of the Appellant. I have carefully read the evaluation of the evidence of these witnesses by and the conclusions thereon of the trial Tribunal. I refer to pages 327 to 330 of the record. The trial Tribunal after the evaluation of the said pieces of evidence came to the conclusion that both sides were involved in acts of thuggery, violence, intimidation of voters and disruption of the election in Kabba Area. In its view, the atmosphere in Kabba Area on the day of the election was such that the people were not allowed to freely exercise their franchise. See lines 5 to 8 and 22 to 25 at page 328 of the record.

I unhesitatingly agree with the submissions of the learned counsel for the 1st & 2nd Respondents that the trial Tribunal in general painstakingly considered and properly evaluated the evidence before it in line with the pleadings and came to an inescapable conclusion that the election under consideration was marred by violence and malpractices. Indeed, the evidence of the witnesses under review amount to allegations and counter-allegations of two opposing forces and factions. It is therefore less than correct to conclude therefrom as asserted by the learned counsel for the Appellant that the evidence adduced by the 1st & 2nd Respondents were controverted and discredited by the evidence adduced by the Appellant.

In my humble but firm opinion, the trial Tribunal not only properly but dispassionately evaluated the evidence of both parties and came to the right conclusions in the circumstances of the case. I agree with the conclusions as they properly flowed from the evidence adduced. I have no reason to interfere with these conclusions.

Issue one is bound to fail. I hold that it fails and is resolved in favour of the 1st & 2nd Respondents.

ISSUE TWO

“Whether the entire trial including the Judgment of the National Assembly/Governorship and Legislative Houses election Petition Tribunal was not altogether a nullity for gross violation of the doctrine of fair hearing by reason of the Tribunal disallowing the 3rd – 117th Respondents from filing their respective Replies in defence of the petition and also for entertaining and acting on averments in the petition and evidence thereof in relation to allegation of violence, thuggery, intimidation of voters et al against several persons not parties to the petition to the prejudice of the Appellant.”

It was contended for the Appellant that the 1st and 2nd Respondents did not pretend that they intended to confront both the Appellant and the 3rd – 117th Respondents by accusing them of collusion and falsification of election results. In other words, the 1st and 2nd Respondents accused the Appellant and the 3rd – 117th Respondents of acting in concert. Under that circumstance, the collective interest nay, integrity of the Appellant and the 3rd -117th Respondents were at stake in the said petition. That being so, fair trial or fair hearing demands that the Appellant as well as the 3rd -117th Respondents be accorded full opportunity of ventilating their defence. Regrettably, the record shows that the opportunity of fair hearing was not accorded all the parties in this case. Mr. Dan Akoji appeared for the first time for the 3rd -116th Respondents. On that occasion, he passionately pleaded with the Tribunal to give him one week adjournment to enable him file a reply on behalf of the 3rd -116th Respondents having just been briefed.

In his determined resolve to defend the 3rd -116th Respondents, Mr. Akoji of counsel proceeded to file a formal Motion on Notice seeking enlargement of time to enable the 3rd – 116th Respondents file their Reply out of time. This is contained in pages 119 to 213 of the record.

The Tribunal dismissed the said application, thereby depriving the 3rd – 116th Respondents of the opportunity to put in their defence.

As for the 117th Respondent, the DPP of Kogi State filed an application on his behalf seeking enlargement of time within which to file the Memorandum of Appearance and the Reply of the 117th Respondent and to deem both processes as duly filed and served. This is contained in pages 214 to 227 of the record. The Tribunal also refused the application thereby shutting out the 117th Respondent from defending the petition as well. It is remarkable, that the same Tribunal that turned down the request of Mr. Akoji for one week’s adjournment to enable him file the Reply of the 3rd -116th Respondents, quickly obliged the learned counsel for the 1st and 2nd Respondents when he applied for an adjournment for two days to enable him attend an undisclosed examination. In fact, the Tribunal graciously granted one week adjournment instead of the two days sought by the learned counsel for the 1st and 2nd Respondents. This is contained in page 174 of the record.

The Appellant’s learned senior counsel canvassed that ten different persons were specifically fingered or named in the petition of the 1st and 2nd Respondents as being persons of PDP extraction and alleged agents of the Appellant who were said to have been armed with guns and dangerous weapons and fired shots sporadically from ward to ward with the alleged consent and knowledge of the Appellant. These are allegations of crime against these ten persons.

Surprisingly, none of them was joined as a respondent to the petition.

In the same token the Peoples Democratic Party, PDP, to which they were said to be affiliated, was not joined as a respondent in the said petition. Likewise, one Mike, a welder accused of culpable homicide was not joined in the petition. Yet, the trial Tribunal acted on these averments against these persons as well as against the PDP by relying on evidence thereof even though they were not parties to the petition.

The Tribunal proceeded to invalidate the election of the Appellant on the ground that the same was vitiated by thuggery and violence. If the Tribunal had adhered to the doctrine of fair hearing, it would not have acted on averments and evidence bordering on criminality against persons not parties in the petition. Instead, it ought to have struck out all the averments in respect of crime affecting persons not joined as parties in the petition. The right of being heard is as ancient as the Biblical trial of Adam and Eve in the Garden of Eden. On this age-long legal position, reference was made to the cases of:

(1) R. v. Chancellor of the University of Cambridge (1723) 1 Str p. 557 at p. 567 and

(2) Olatubosun v. NISER Council (1988) 3 NWLR (Pt. 80) p. 25.

The issue of fair hearing has since gained universal ascendancy since the Garden of Eden. Indeed, right through the days of “Magna Carta, 1216” to the “Universal Declaration of Human Rights, 1948″, fair hearing has held sway. It is entrenched in ”Article 10 of the Universal Declaration of Human Rights (United Nations Charter), 1948″.

Similarly, it is guaranteed by; ”Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement Act) Cap. 10, Laws of the Federation, 1990.” It is provided for in ”Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.” Fair hearing is so crucial and fundamental that it cannot be compromised on any account. A fortiori, failure to observe it renders proceedings void and liable to be set aside. Seethe cases of:

(1) Okonkwo v. Okonkwo (1998)10 NWLR (Pt. 571) p. 554 at 570;

(2) Nwankwo v. Onuma (1990) 3 NWLR (Pt. 136) p. 22 at 31 and

(3) Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) p. 355 at p.397

The learned senior counsel for the Appellant asserted that the pith and substance of this issue is that the entire proceedings including the judgment of the lower Tribunal delivered on 6/8/07 in this case are fatally flawed for non-adherence to the doctrine of fair hearing. A fortiori, the entire proceedings is a nullity. He relied on the cases of:

(1) Alabi v. Lawal (2004) 2 NWLR (pt. 856) p. 134 at p. 147 and

(2) Ika LGA v. IMBA (2007) 12NWLR (pt. 1049) p.676 at pgs. 702-703.

Replying to issue two, the 1st Respondent’s learned counsel argued that an applicant or anyone seeking to enforce his right under Section 36 must be a person, artificial or otherwise, whose right has been, is being, or is likely to be contravened. The right must fall within the fundamental rights provisions under Sections 33 to 44 of the said Constitution. On this legal principles, reliance was placed on the case of: Uzoukwu Vs. Ezeonu II (1991)6 NWLR (Pt. 200)p. 708 at pgs.

761 – 762. The person must have a valid and reasonable cause of action as made out in the reliefs sought by him. He must also show that he has the “locus standi” in the issue complained of.

On the second leg of this issue, learned counsel submitted that it is settled law that thugs cannot be joined as parties to an election Petition. The proper Respondents in Election Petition are as contained in Section 144 of the Electoral Act, 2006, Thugs are not covered by the said section. Reference on this stance was made to the cases of:

(1) Obasanjo Vs. Yusuf (2004) 9 NWLR (Pt. 877) p.144 at p. 185:

(2) Buhari Vs. Obasanjo (2005) 2 NWLR (pt. 910) p. 241 at p.355 and

(3) Sosanya v. Onadeko (2000) 11 NWLR (Pt. 677) p. 44.

The Electoral Officers complained about were duly joined. Hence, the case of: Egolum Vs. Obasanjo supra relied upon by the Appellant is misapplied and irrelevant to the instant case.

The crux of the Appellant’s contention herein is two-pronged.

The first limb being that the 3rd – 117th Respondents were accused vide the petition of the 1st & 2nd Respondents to have illegally acted in concert with the Appellant to falsify the results of the election under consideration. Therefore, the 3rd – 117th Respondents who ought to have been given the full opportunity to ventilate their defence were denied in this regard. They were not given fair hearing by the trial Tribunal which refused their applications for extension of time to file their Replies to the petition out of time.

I have considered the arguments of both counsel for and against this issue. The doctrine of fair hearing connotes giving parties before the court the right to be heard before the court decides a matter. This is the time-honoured principle of natural justice embodying the ”audi alteram pattern” rule which simply means, “please hear the other side.” The essential of fair hearing is that a court must hear both sides to a case. Fair hearing demands equal treatment equal opportunity and equal consideration to all parties concerned in a case. See the cases of:

(1) Saleh Vs. Munguno (2003)1 NWLR (Pt. 801) p. 221:

(2) Udo-Akagha Vs. Paico Ltd (1993) 4 NWLR (Pt. 288) p.434;

(3) Kotoye Vs. CBN (1989) 1 NWLR (pt.98) p.419;

(4) Adisa Vs. A. – G., Oyo State (1987)1 NWLR (Pt. 53) p.678 and

(5) Military Gov., Imo State Vs. Nwanwa (1997) 2 NWLR (pt.490) P. 675.

However, in a situation where a party to a suit has been granted a reasonable opportunity of being heard but he deliberately refused to avail himself of such an opportunity through his own or his counsel’s tardiness or neglect, he can not turn round to complain of a breach of fair hearing. See the cases of:

(1) Renolds Construction Co. Ltd Vs. Okpegboro (2000) 2 NWLR (Pt.645) p. 367 and

(2) N.D.I.C. Vs. Ecobank Mg. Ltd (2003) 11 NWLR (pt. 830) P. 93.

It is very patent from the record and indeed the Appellant agreed that the said similar applications of the 3rd – 114th Respondents on one hand and the 117th Respondent in the instant appeal were presented not only after the pre-hearing session had ended but after the petitioner had closed his case and on the day the defence was to commence. The trial Tribunal upon due consideration of the applications which were opposed came to the following conclusions:

“We have carefully considered Mr. Akogun’s application brought by way of Motion on notice pursuant to paragraph 43(1) of the 1st Schedule to the Electoral Act, 2006 among others. We take note of the fact that the 116th Respondent was served with the petition on the 14th day of May, 2007.

Since then he neither filed a Memorandum of appearance nor his reply. In fact he took no part in the Pre-trial Conference which is par. 3 (sic) of the Practice Directions of the Tribunal mandatory. Consequently we are not inclined to at this stage allow the 116th Respondent file either the Memo of appearance or his reply. This application is accordingly hereby refused.

We have carefully considered the application just made by the learned counsel to the 2nd – 115th Respondents. It is quite clear as submitted by Mr. Okoye of counsel to the petitioner that the 2nd – 115th Respondents did parttake (sic) In the proceedings at the pretrial Conference as they were fully represented by counsel from beginning to the end They were also represented by counsel when hearing into this matter commenced whereby the Petitioners presented all their witnesses who were even cross-examed (sic) by the learned counsel to the Applicants. They had been presented (sic) when the Petitioners (sic) counsel with the leave of this Tribunal closed the case of the Petitioner. Yet the applicants raised not (sic) objection thereto nor indicated any intention of presenting or filing their reply.

The right to fair hearing as enshrined under (sic) S. 36 of the 1999 Constitution presupposes that a party should be given every opportunity of being heard They (sic) Respondents/Applicants are believed (sic) were afforded every opportunity of being heard as they were served with all the processes and had appeared or been represented by Counsel in all the events culminating into (sic) the pre-hearing conference after which the matter went to full trial.

It is our view and we uphold the objection of the learned counsel to the Petitioner that granting this application will be highly prejudicial to the petition and evoke a re-enactment of all the stages so far covered.

Consequently we hereby dismiss the application for lacking in merit. ”

The foregoing are contained in pages 230, 234 and 235 of the record.

It is pertinent to advert to Paragraph 43(1) of the First Schedule to the Electoral Act, 2006 which reads as follows:

“43.-(1) The Tribunal or Court shall have power, subject to the provisions of Section 141 of this Act and paragraph 14 of this Schedule, to enlarge time for doing any act or taking any proceedings on such terms ( if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule. ”

In furtherance to the foregoing paragraphs, according to Paragraph 51 of the same First Schedule which reads that:

“51. Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or of the Supreme Court, as the case may be, regard being had to the need for

urgency on electoral matters. ”

The practice and procedure in the Court of Appeal Rules, 2007 relating to appeals can only be adopted in the instant case bearing in mind the need for urgency in electoral matters- see in this regard Order 7 rules 10 (1) and (2) which read thus:

810. -(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.

(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

It is now established and no longer novel that the spirit of the law relating to election matters is that as much as possible, petitions should be given expeditious adjudication to enable the parties to know the result of the election in which they participated. See the cases of:

(1) Ogbebor v. Danjuma (2003) 15 NWLR (Pt. 843) p. 403 and

(2) Balogun v. Odumosu (1999) 2 NWLR (Pt. 592) p. 590.

It is widely acclaimed that time is of essence in election matters. Participants in elections, their counsel and all and sundry are very much aware of this. All the processes in the conduct of the 2006 elections have been programmed along this line. So also, election petitions and appeals arising therefrom are expected to be devoid of procedural that cause delay in the disposition of substantive suits and appeals alike.

It is in line With the above stated position of the law that I agree with the rulings of the trial Tribunal in which the applications in contest were refused .

I wish to state here at this juncture that, I had considered the propriety of the refusal of the said applications by the trial Tribunal in order to fulfil all the righteousness of this issue. What is more, the issue of fair hearing touches on jurisdiction. Ordinarily, I ought to have discountenanced and struck out same and the grounds from which the issue flowed as not having arisen from the judgment of the trial Tribunal appealed.

The second limb of this issue is the contention of the Appellant’s learned senior counsel that certain persons including Peoples Democratic Party (PDP) who were alleged in the 1st & 2nd Respondents’ petition with the commission of crime ought to have been joined as respondents in the petition filed at the trial Tribunal. It was submitted for the Appellant that the trial Tribunal in the given circumstance wrongly proceeded to find against these persons who were non-parties in the petition and consequently by invalidating the election of the Appellant on the ground that the said election was vitiated by acts of thuggery and violence. The said non-parties accused persons according to the learned senior counsel for the Appellant were not given fair hearing and this rendered the entire proceedings including the judgment of the trial Tribunal fatally flawed and thereby null.

The relevant provisions of the law for the purposes of determining the ”locus standi” of persons in an election petition is Section 144(1) and (2) of the Electoral Act, 2006 which read thus:

“144.-(1)An election petition may be presented by one or more of the following persons;

(a) a candidate in an election;

(b) a political party which participated in the election.

(2) The person whose election is complained of is in this Act, referred to as the Respondent but if the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose, of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”

It is pertinent to state here that election petitions are ”sui generis”, they are distinct from ordinary proceedings. The procedure is largely governed by laws specially made to regulate the proceedings. These are made under the Constitution and the Electoral Act. The issue of “locus standi” of parties either as Petitioners or Respondents transcends the common law concept that parties are bound by the statute creating them. In the institution of an election petition, a party must have the capacity or ”locus standi’” to institute such an action; while the Respondent in an election petition must be a proper party.

The law which establishes the right standing of parties whether as a petitioner or respondent in an election petition is the Electoral Act itself as reiterated supra.

By Section 144(1) of the Electoral Act, 2006 an election petition may be presented by one or more of the following persons:

(a) a person in an election

(b) a political party which participated in the election.

While by Section 144(2), a Respondent is:

(a) a person whose election is complained of

(b) where there is a complaint against the conduct of the following persons, they shall be deemed to be Respondents and shall be joined as such in the petition in their official status as necessary parties that is:

(i) a Presiding Officer,

(ii) a Returning Officer,

(iii) any other person who took part in the conduct of an election.

Apart from the PDP and one Mike who was said to be welder, the – others who were allegedly not made respondents in the petition under consideration were not named and their individual status was not specified. It is therefore difficult to know if the alleged faceless persons fall within the scope and category of respondents under the provisions of Section 144(2) of the Electoral Act. As for PDP and Mike the welder, neither of them took part in the conduct of the election in dispute.

They do not also fall within the ambit of officers of INEC as specified in Section 144(2), who took part in the conduct of the elections. The person whose election was complained of is definitely not PDP, who merely sponsored candidates, in the instant case, the 1st Respondent to participate in the election just like other political parties. PDP and other political parties did no more than sponsor candidates, they did not participate in the conduct of elections.

I therefore agree with the learned counsel for the 1st & 2nd Respondents that the case of: Egolum v. Obasonjo supra is distinguishable from the instant case. In the present case, the Electoral Officers whose conduct of the election under consideration were complained of were duly joined as respondents in the petition.

I am fully persuaded that the strenuous labour of the Appellant’s learned senior counsel under this issue with respect to him is unfortunately in vain. This issue suffers the fate of failure. It is hereby

resolved in favour of the 1st & 2nd Respondents.

ISSUE THREE

“Whether the trial Tribunal was right in acting on speculation as well as outside the pleadings of the pt and 2nd Respondents.”

The learned senior counsel for the Appellant submitted that the trial Tribunal resorted to needless speculations, assumptions and veered off the pleadings of the petitioners. Whereas, it is trite law that Courts or Tribunals are not expected to resort to guess work or speculation, rather they are expected to act on concrete facts based on evidence before them and not sheer hypothesis. On this legal position reliance was placed on the cases of:

(1) R.E.A.N. PLC v. Anumnu (2003) 6 NWLR (pt. 815) p. 52 at p. 117 and

(2) S.D.C CEM NIG. LTD. v. Nagel & Co. Ltd (2003) 4 NWLR (Pt. 811) p. 611 at p. 639.

Consequently, the said speculations prejudiced the mind of the Tribunal against the Appellant by concluding that the Appellant was indirectly linked with the alleged violence. Contrary to the conclusion of the Tribunal, the purported evidence of the 1st Respondent and his said witnesses indirectly linking the issue of violence with the Appellant was shattered through the rebuttal and inadmissible hearsay evidence of the 1st Respondent and his witnesses. As a matter of fact, the statement of the 1st Respondent that thugs were led by RW4 was not borne out of his personal knowledge and as such can not be accepted for the purpose of linking the alleged violence with the Appellant. The alleged admission by RW 1 that he was an agent of PDP on the day of the election is of no consequence, moreso that PDP is neither synonymous with the Appellant nor was it made a party to the petition.

On the issue of acting outside the pleadings, the learned senior counsel to the Appellant contended that at trial, he urged the trial Tribunal to strike out certain paragraphs in the witnesses’ statements on oath which were not pleaded in the petition; but his plea was unfortunately trivialized, It is trite law that parties are bound by their pleadings hence evidence in respect of material facts not pleaded or evidence outside of pleadings goes to no issue, for pleadings define the scope of litigation or evidence to be elicited. Pleading is the life wire of a claim. On this legal principle reference was made to the Cases of:

(1) Ishola v. UBN LTD (2005) 6 NWLR(pt. 922) p. 422 at pgs. 439 – 440;

(2) Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) p. 91 at p. 122; and

(3) Yar’Adua v.Barde (1992) 2 NWLR (Pt. 231) p.638.

The lower Tribunal was clearly in the wrong to have gone outside the pleadings of the Petitioners by utilizing same to the detriment of the Appellant.

The 1st Respondent’s learned counsel contended in reply to issue three that counsel for all parties agreed that parties have joined issues on all those paragraphs under attack, the issue of whether they were pleaded did not arise as litigants do not join issues upon unpleaded facts. This issue is no more available and cannot constitute a competent ground of appeal as counsel is DOMINIS LITIS and can compromise the case of his client. On this proposition, reliance was placed on the case of: Olusola Fatunbi & Anor. V. Ebenezer O. Olanloye 18 NSCQR p. 810 at p. 832.

The 1st and 2nd Respondent’s learned counsel argued that the trial Tribunal reviewed the evidence of parties and their witnesses. It believed the evidence of the Petitioners and their witnesses before arriving at its conclusion. The conclusion therefore flowed from the evidence reviewed. This is in line with the position of the Supreme Court in the case of: Merchantile Bank of Nigeria Plc & Anor. Vs. Linus Nwobodo 23 NSCQR p. 60 at p. 72.

The trial Tribunal did not speculate on any issue. There was concrete evidence that some thugs worked for the Appellant even though they were not apprehended.

The grouse of the Appellant under this issue is that the evidence of the 1st Respondent and his witnesses linking the alleged violence on the day of election amounted to hearsay evidence, which the trial Tribunal was legally forbidden to act upon. I have carefully perused the statements on oath and the adoption of same at the pre-hearing conference – these are contained in pages 16 to 18 and 178 to 190 of the record. I fail to find any portion of the statements which amounts to hearsay. Rather the witnesses especially the 1st Respondent gave evidence about what they personally experienced on the day in question.

The Appellant complained that the facts in the statement of the 1st Respondent were not pleaded and ought to have been expunged by the trial Tribunal. I agree with the holding of the trial Tribunal that in law, facts and not evidence are pleaded; the statement in dispute is evidence on oath and was in support of the allegation of thuggery pleaded in the petition – see lines 17 to 21 at page 328 of the record.

I am at one with the learned counsel for the 1st & 200 Respondents that the trial Tribunal did not speculate on any issue in its evaluation of the evidence adduced before it and in its findings. It did

not go outside the pleadings of parties. Its findings as earlier founded by me in this judgment are very sound, in accordance to the relevant laws and flowed directly from the evidence adduced before it.

In essence, I hold that the contention for the Appellant under this issue is with respect to his learned senior counsel totally misconceived and of no moment. This issue lacks merit and I resolve it in favour of the 1st & 2nd Respondents accordingly.

ISSUE FOUR

“Whether the 1st and 2nd Respondents discharged the requisite burden of proof on them to Justify the conclusion of the trial Tribunal that the atmosphere in Kabba on 14th April, 2007, the day of election was bedeviled with violence and thuggery that the election in the nine (9) wards of Kabba was void by reason of malpractices, that the thuggery and violence amounted to malpractices which substantially affected the result of the election and that the Appellant was not validly returned, the election having been vitiated by the thuggery and violence thereby entering judgment for the 1st and 2nd Respondents by nullifying the election of the Appellant. ”

It was contended for the Appellant that the allegation of violence and thuggery characterizing the length and breadth of the petition borders on crime. That being so, the burden of proof incumbent on the Petitioners is that of proof beyond reasonable doubt pursuant to Section 138(1) of the Evidence Act. Reliance was placed on the case of: Nnachi Vs. Ibom (2004) 16 NWLR (Pt. 900) p. 614 at p. 635

The law has since been settled that the burden of proof is on him who asserts. Reference on this legal position was made to the cases of:

(1) Daggash Vs. Bulama (2004) 14 NWLR (Pt. 892) p. 144 at p.198:

(2) Adamu v. Gwadabawa (1999) 3 NWLR (Pt. 594) p. 257 at p. 260:

(3) Anozie Vs. Obichere (2006) 8 NWLR (Pt. 981) p.140 at p.153 and

(4) Egolum Vs. Obasanjo supra.

It was argued for the Appellant that the allegation of crime leveled against several persons who were not parties to the petition was baseless. That is, the averments touching on criminality against persons not parties to the petition are patently groundless and are rendered incompetent. On that score alone, the Petitioners cannot be said to have discharged the burden of proof incumbent on them in this case.

A careful scrutiny of the evidence led by the Petitioners shows that it miserably fell short of the required burden of proof pursuant to Section 138(1) of the Evidence, Act. The evidence of the Petitioners’ witnesses was tantamount to hearsay evidence which is legally inadmissible and which was crippled under cross-examination. For added measure, the Appellant and his witnesses offered rebuttal evidence that made a mincemeat of the petition. One fundamental flaw in the case of the Petitioners is that the witnesses statements on oath were not directly adopted by the respective witnesses or deponents. Rather, it was the learned counsel to the 1st and 2nd Respondents that routinely adopted the various witnesses’ statements as such. References were made among others to page 175 line 21, page 176 line 20, page 177 line 23, page 191 lines 16 to 17 and page 196 lines 25 to 26. This is fatal to the Petitioners’ case having regard to Paragraph 4(3) of the Practice Direction, NO.2, 2007 which provides that 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.

In further contention for the Appellant, it was canvassed that besides the damaging cross-examination of the witnesses that testified for the Petitioners, the Appellant assembled vital witnesses whose evidence individually and cumulatively controverted the evidence adduced by the Petitioners. The Appellant carefully debunked the allegation of thuggery and violence leveled against him and his agents.

It is a settled principle of law that a petitioner who alleges malpractices must adduce credible and sufficient evidence to prove such malpractices failing which the petition would be dismissed. On this legal principle, reliance was placed on the cases of:

(1) Kalgo (1999) 16 NWLR (Pt. 608) p. 639 and

(2) Oji Vs. Ndu (1993) 1 NWLR (Pt. 268) p. 235.

Significantly, the law recognizes that non-compliance with electoral provisions or commission of electoral offences do occur but the law is more concerned with the extent, that is, how far and wide they do occur, and how such occurrences affect the electoral result. Reference on this position was made to the cases of:

(1) Ojukwu Vs. Onwudiwe (1984) 1 SCNLR p. 247 and

(2) Wale vs. Bafawara (2004) 16 NWLR (Pt. 898) p.1 at p. 34.

Having failed to discharge the requisite burden of proof, the Petitioners were not entitled to judgment. Thus, the trial Tribunal was in grave error in nullifying the election of the Appellant on the ground that same was vitiated by thuggery and violence.

It was submitted for the 1st Respondent in reply to issue four, that there was abundant evidence that the Petitioners at the trial Tribunal proved the allegations of crime in the petition beyond reasonable doubt in compliance with Section 138 of the Evidence Act.

In support of the legal principle, reference was made to the case of:

Nwobodo Vs. Onoh (2007) 3 EPR p. 734. Even the allegations of violence and electoral malpractices were proved beyond reasonable doubt. The testimonies, of all the Petitioners’ witnesses were unshaken.

On the allegation of falsification, the Petitioners relied on Exhibits R10 & R10A. These documents were falsified in the sense that they contain figures that defy every mathematical theorem and logic. This is an evidence of malpractices of the highest magnitude in the history of democratic election in Nigeria. On this stance reference was made to the cases of:

(1)M.S.C. Ezemba v. S.O. Ibene & Anor. (2004) 14 NWLR (Pt. 894) p. 617 at p. 660

(2) Niyi Akinmoju v. The State 2 SCNQR (Pt.11) p. 111 and

(3) Buhari v. Obasanjo supra

In persuasion of the 1st Respondent’s contention, further reference was made to the book, Advocacy in Election Petition by Hon. Justice P. A Onamade. The learned counsel submitted that it was too clear that there were substantial malpractices which could not be overlooked. There was an avalanche of credible evidence in proof of the alleged crime of very high level electoral violence resulting in death. On this position, reliance was placed on the case of: E.B. Sorunke Vs. J.D. Odebunmi (2007) 3 EPR p. 986.

On the whole, the election in contention was found not to be in substantial compliance with the provisions of the Electoral Act, 2006.

The contention of Appellant under issue four is that by implication, the allegations of election malpractices, acts of thuggery and violence which border on crime were not proved beyond reasonable doubt by the 1st & 2nd Respondents as required by law under Section 138(1) of the Eviderice Act.

Generally, by virtue of sections 135, 136, 137 and 139 of the Evidence Act, in a civil case of which election matters are a specie, the party who asserts in his pleading the existence of a particular fact is required to prove such facts by adducing credible evidence. If he fails to do so, his case fails. On the other hand, if he succeeds in adducing evidence to prove the pleaded facts, he is said to have discharged the burden of proof that rests on him. The burden then shifts to his adversary to prove that the fact established by the evidence would not, on the preponderance of the evidence, result in the court giving judgment in favour of the party. In other words, the burden of proof in civil cases is not static or rigidly on one side. It shifts from one side to the other depending on the state of the evidence led in support of each of the parties’ case. Seethe cases of:

(1) Osawaru Vs. Ezeiruka (1978) 6 – 7 SC p. 135;

(2) Adegoke Vs. Adibi (1992) 5 NWLR (Pt.242) p. 410 and

(3) Buhari Vs. Obasanjo supra

However, an allegation of the commission of a crime both in criminal and civil cases must be proved beyond reasonable doubt.

Consequently, allegations of manipulation or alteration of election results, or acts of violence during election, which are criminal offences as in the instant case must be proved beyond reasonable doubt. It is therefore inappropriate for a court or tribunal to infer that a particular candidate at an election was responsible for the violent acts committed during an election in the absence of evidence which shows beyond reasonable doubt that he was responsible.

In the case of Buhari Vs. Obasanjo supra, the Supreme Court per Pats-Acholonu JSC of blessed memory at page 295, paragraphs B- gave the meaning of the phrase, “proof beyond reasonable doubt” as follows:

”Moreover it is essential to know that most of the allegations questioning the propriety of the elections verged on criminal acts and other unethical acts. On the authority of Jim Nwobodo & Onoh & 2 Ors. (1984) 1 SCNLR 1, they must be proved ”beyond all reasonable doubt.” What really does that expression mean. It is proof that precludes every reasonable hypothesis except that which it tends to support and verily it is a proof that is consistent with the guilt of the accused

person or against whom the allegation has been made.

Therefore, it can be said that for evidence to attain the height that could bring about a conviction it must exclude beyond reasonable doubt, every other hypothesis or conjecture or proposition or presumption except that of the guilt of the accused If the evidence is wobbly, the motive or vague or is compatible with both innocence and guilt, then it cannot be described as being beyond all reasonable doubt”.

In the instant case, the trial Tribunal in its judgment rightly identified the issue of crime which had arisen from the pleadings as the basis or foundation of the petition and also rightly held that the 1st & 2nd Respondents must prove the commission of the alleged crime, beyond reasonable doubt. See lines 1 to 5 at page 321 of the record.

At pages 321 to 327 of the record, the trial Tribunal evaluated and appraised the evidence adduced before it by both parties and came to the conclusion in lines 20 to 27 at page 327 and lines 1 to 5 at p. 328 that:

“We have considered the entire evidence led by both parties particularly the evidence of the Petitioner in his statement, the evidence of PW3 and PW7 who was attacked and macheted by thugs which evidence were not discredited under cross-examination, We therefore believe their evidence. They described the spread of the violence, thuggery and how voters were scared away from the polling stations,

They indentifed some of the thugs by name and those who were led by them. RW1 and RW4 are those who led the thugs. They testified in support of the 1st Respondent and denied the allegations of thuggery and violence made against them. They said was the 1st Petitioner who brought thugs from Lagos to disrupt the elections. The 1st Petitioner confirmed that his bus was driven to the police (sic) station while they said the bus was arrested by the police (sic) when the 1st Petitioner was moving around with the thugs.”

To my mind, the above conclusion of the trial Tribunal flowed from the evidence adduced by both parties showing that not only did the 1st & 2nd Respondents discharged the onus on them to prove the criminal allegations beyond reasonable doubt but that the Appellant’s evidence showed that the 1st & 2nd Respondents equally engaged in acts of thuggery and violence during the election. In essence both parties were actually involved in acts of thuggery, violence, intimidation of voters and disruption of the election in Kabba area. In the instant case, I hold that the trial Tribunal adequately and properly assessed, appraised and evaluated the evidence before it. I also hold that the findings of the trial Tribunal can not be regarded as being perverse as they are based on the credible evidence before it. I therefore neither have an ought against nor any reason at all to interfere with the findings. I am strengthened in this resolve because it is trite law that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. See the cases of:

(1) Awoyale Vs. Ogunbiyi (No. 2) (1986) 2 NWLR (Pt.24) p.626;

(2) Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) p. 685;

(3) Woluchem v. Gudi (1981) 5 SC p. 291 and

(4) Hashidu Vs. Goje (2003) 15 NWLR (Pt. 843) p. 352

In the case of; Hashidu v. Goje supra, Akintan JCA at page 392 referred with approval to the case of: Shell Petroleum Development Co. (Nig.) Ltd Vs. Otoko (1990) 6 NWLR (Pt. 159) p. 693 at p. 709 where Omosun JCA succinctly stated the principle of law thus: It is now well settled that a Court of Appeal does not interfere with the findings of the court of trial for the mere sake of interference unless they are perverse. It is much more difficult when such findings are based on the credibility of witnesses who were never before the Court of Appeal because the Court had not the advantage of hearing and seeing them and watch their demeanor. That is the preserve of the court of trial. It is however the law that where the question is as to the proper evaluation of their evidence and the inference to be drawn from the proved facts, the Court of Appeal is in as good a position as the court of trial. See Fatoyinbo Vs. Willaims (1956) SCNLR p. 274. ”

The arguments of the learned senior counsel for the Appellant under this head are hereby discountenanced.

Furthermore, the trial Tribunal rightly found that the election having been bedevilled with violence and thuggery, the atmosphere and the situation in Kabba area that day were such that the people were not allowed to freely exercise their franchise, that is, to cast their votes lawfully. Contrary to the view of the learned senior counsel for the Appellant, the occurrences greatly negatively affected the voting exercise and consequently, they substantially affected the results of

the election. See the cases of:

(1) E. B. Sorunke v. J.D. Odehunmi supra Definitely, the foregoing acts of violence not being in substantial compliance with the provisions of the Electoral Act, 2006, the election under consideration can not legally be allowed to stand. The trial Tribunal correctly held so. Consequently, this issue is resolved against the Appellant.

ISSUES FIVE AND SIX

“Whether having regard to the state of pleadings and evidence on printed record, the trial Tribunal was right in coming to the conclusion that over-voting occurred in Otu, Egbeda and Okedayo wards and that the picture, painted before the Tribunal was such that 90-100% turn out of voters recorded in Asuta, Odo Akete, Okekoko, Odolu, Aiyewa and Ayeteju wards was unbelievable in that there was evidence of violence, thuggery and intimidation of voters.

Whether the learned Judges of the trial Tribunal were right when they held and/or came to the conclusion that Exhibits “R10″and ”R10A” were doctored and that if was not necessary for the 1st and 2nd Respondents to plead and prove two sets of results before proving alleged malpractices regarding falsification of result.”

The learned senior counsel for the Appellant adopted his arguments in the preceding issue. He pointed to the Petitioners’ unequivocal averments in their petition to the effect that there was no election at all in the whole of the nine wards of Kabba. Consequently, the conclusion reached by the trial Tribunal that over-voting occurred at Otu, Egbeda and Okedayo wards is manifestly inconsistent with the averments in the petition that election did not take place in the said wards which form part of Kabba. It was contended for the Appellant that, in the absence of the primary evidence, to wit, statement of results vide Form EC8A (i), it is impossible, impracticable and unrealistic to determine or arrive at the conclusion of over-voting regarding the polling units. Over-voting by nature and definition occurs at the polling unit level and not at the ward level and it is when the entries in the statement of results and the number of registered voters on voters registers are put side by side and verified that one can safely determine whether or not over-voting occurred. Understandably, their case is not that of over-voting but that election did not take place at all.

The learned senior counsel for the Appellant argued that the trial Tribunal put up a new case for the Petitioners in obvious abandonment of the petition and came to the conclusion, albeit, wrongly, that over-voting occurred. Form EC8AC (i) is an inchoate and misleading evidence on alleged over-voting in Otu, Egbeda and Okedayo wards.

For it is settled law that over-voting arises when more votes than registered voters are cast in a polling station. On this position reliance was placed on the cases of:

(1) Jimoh v. Garba (2003) 1 WLNC (Pt. 5) p. 125 at p. 130;

(2) Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608) p. 639 at p. 646 and

(3) Haruna v. Modibbo (2004) 6 NWLR (Pt.900) p. 487.

The concept of 90-100% turn out at the ward level does not make sense because voting takes place at the polling units and not at the ward level. Furthermore, there is no direct evidence led by the Petitioners specifically naming polling units that recorded 90-100% turn out of voters. What is more, there is no law forbidding such turn out of voters at an election. The implication is that the trial Tribunal was clearly in the wrong in its conclusion that, there was 90-100% turn out of voters at some wards.

The Appellant’s learned senior counsel submitted that it is indisputable that the allegation of collusion and falsification of results are criminal in nature and as such the burden of proof is that of proof beyond reasonable doubt in line with Section 138(1) of the Evidence Act. For it is settled law that in order to prove falsification of votes or results, it is imperative that the Petitioners must have two sets of results, one considered genuine and the other false. The two would then be compared or considered by the Tribunal to determine the falsity. He relied on the cases of:

(1) Wale Vs. Bafarawa (2004) 16 NWLR (pt. 898) p. 1 at p. 34 and

(2) Sabiya Vs. Tukur (2003) 1 WLRNC (Pt. 4) p. 86 at p. 87.

The rationale is that there is a rebuttable presumption that the result declared by an electoral body is correct and authentic. On this legal principle reference was made to the case of: Adun Vs. Osude (2003) 16 NWLR (Pt. 847)p. 643 at p. 664.

In the instant case, the Petitioners never presented two sets of results regarding Exhibits R10 and R10 (A). Nevertheless, the Tribunal concluded that it was not necessary for the Petitioners to plead and prove two sets of results in order to establish the allegation of malpractices. Contrary to this conclusion of the Tribunal, it was incumbent and absolutely necessary for the Petitioners to plead and prove two sets of results regarding allegation of falsification. The failure to do so on the part of the Petitioners is fatal to their case. By extension, the conclusion reached by the lower Tribunal on this score is gravely flawed.

The learned counsel for the 1st Respondent in reply to issues five and six disagreed with the Petitioners’ contention that what happened at Kabba on 14/4/2007 could not pass as a credible election. He submitted that it is a settled principle of law that election is a process and does not involve only voting. On this legal principle, reference was made to the case of: Ojukwu Vs. Onwudiwe supra.

The documents pleaded included Exhibit R10 & R10A that is, form EC. 8C. The documents showed that the votes cast and rejected were more than the registered voters. They patently show that they were not only doctored but there were alterations, discrepancies and inconsistencies on them. Figures did not add up. The trial Tribunal therefore rightly held that the documents coupled with the evidence of violence and intimidation of voters during the election are a clear evidence of malpractices.

The contention for the Appellant under this issue is that there was inconsistency in the case of the 1st & 2nd Respondents at the trial Tribunal. The Appellant’s counsel alleged that while the 1st & 2nd Respondents pleaded in their petition that there was no voting at all in Kabba area, the trial Tribunal found that there was over-voting in Otu, Egbeda and Okedayo, three of the nine wards forming Kabba area. I have meticulously read the petition, there is no averments therein that there was no election in Kabba area. The plank upon which the petition was based is that the election was characterized by electoral malpractices and acts of violence which disrupted voting. Even though the phrase ”over-voting” might not have been employed in the petition, this could be inferred – see paragraphs (n) and (o) of the petition at page 13 of the record. The trial Tribunal found that Exhibits R10 and R10A contained the entries of scores. These were relied upon by both parties. It is less than correct to say that the Tribunal made a different case for the 1st & 2nd Respondents as alleged by the learned senior counsel for the Appellant. After scrutinizing them, it was found that there were patent discrepancies and inconsistencies in the figures entered therein. Hence, the trial Tribunal actually and rightly observed that to establish the real scores of candidates in the wards, the 1st & 2nd Respondents needed to plead and prove two sets of results. In which case, it must be proved that the alleged malpractice affected the results of the election.

The alleged concept of 100% and 90% – 100% voting in my view was rather an observation or a passing comment of the trial Tribunal.

It was not a decision but an ”obiter didum”.

Most worthy of note is the fact that, the trial Tribunal did not base its decision nullifying the election in dispute on electoral malpractice as they relate to votes scored. Rather it held that the thuggery and violence perpetrated by both parties in the petition amounted to malpractice that substantially affected the result of the election. With respect to the learned senior counsel for the Appellant, all his arguments under these heads are a total misconception of the findings of the trial Tribunal in this regard.

Section 147(1) of the Electoral Act 2006, provides as follows:

“147.-(1)Subject to subsection (2) of this Section, if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election. ”

The foregoing provisions empower the Election Tribunal to nullify an election if the Election Tribunal determines that a candidate who was returned as elected was not validly elected on any ground. The trial Tribunal held that the 1st Respondent was not validly elected by reason that the election was vitiated by thuggery and violence. The nullification of the election under consideration, as observed by me supra, was not based on the quatum of lawful votes cast and won by either the 1st Respondent or the Appellant. Hence, the Appellant can not be entitled to be declared as having won by majority of votes under the provisions of Section 147(2) of the Electoral Act.

I have equally, considered the Appellant’s Reply brief of argument. In my opinion, they amount to a re-argument of the issues in the main brief of argument of the Appellant. They do not in any way advance or improve the case of the Appellant.

On the allegation of misuse of language leveled against the 1st Respondent’s learned counsel by the learned senior counsel for the Appellant, my reaction to this is that, for the umpteenth time, counsel are reminded that they are friends. Clients will come and go but they will always be together at the Bar till death do them part. They are therefore enjoined to eschew descending into the arena of their clients’ battles.

In consequence of the above, issues five and six have failed and are resolved against the Appellant.

This appeal vide the notice and grounds of appeal dated and filed on 24/8/07 is hereby dismissed.

SECOND APPEAL

ISSUES ONE AND TWO

” Whether the refusal by the Honourable Court to grant the appellant’s application for enlargement of time to enter appearance and file a Reply to the petition was not a denial of the appellant’s constitutional right of fair hearing granted under Section 36(1) of the Constitution of the Federal Republic of Nigeria.

Whether the decision of the trial Tribunal is reasonable in the Circumstances of this case.”

The learned honourable counsel for the 117th Respondent/Appellant canvassed that on 28/6/07, the 117th Respondent/Appellant’s counsel filed a motion on notice praying for an order of the Tribunal enlarging time for the 117th Respondent/Appellant to file his memorandum of appearance and Reply to the Petition; and an order deeming the memorandum of appearance and the Reply of the 117th Respondent Appellant already filed to be deemed as having been properly filed and served. This motion on Notice was supported by an affidavit of seven paragraphs to which both the memorandum of appearance and the proposed Reply to the petition were annexed as Exhibits 1 and 2 respectively. There was also a Written Address in support of the Motion on Notice. All the parties to the petition were served. When the Motion came up for hearing on 28/6/2007 the proceedings at the hearing of the petition were at the stage of defence, the 1st Respondent having already closed his case. It was the turn of the 2nd and 3rd Respondents to open their defences respectively. The trial Tribunal in dismissing the application gave as its reasons, the failure of the Appellant to fife the processes within time and failure of the Appellant to participate in the pre-trial conference. The Tribunal did not advert to the reasons for the delay as contained in paragraphs 2 and 3 of the Affidavit in support of the motion.

The refusal of the trial Tribunal to grant the application for enlargement of time deprived the 117th Respondent/Appellant of his constitutional right to fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.

The 117th Respondent/Appellant indicated that he was prepared to join in the proceedings at the particular stage, hence, there was no danger that the granting of the application will prejudice any of the other parties.

It was further submitted for the 117th Respondent/Appellant that the Courts will grant an application of this nature to satisfy the highest possible ideal of justice and fairness. Reliance were placed on the cases of:

(1) Solomon Ogboh & Anor. Vs. The Federal Republic of Nigeria (2002) 4 SCNJ p. 393;

(2) Rasaki A. Salu Vs. Mallam Towuro Egeibon (1994) 6 SCNJ p. 223: at p. 234 and

(3) Lanre Adeyemi Vs. Y.R.S Ike-Oluwa & Sons Ltd (1993) 9 SCNJ p. 293; at p. 300.

A fair hearing connotes a fair trial; while a fair trial consists of the whole hearing. See the case of: Mohammed Vs. Kano N.A. (1968) 1 All NLR p. 42. The provisions of Section 43(1) of the Electoral Act are very clear. They empower the Tribunal to enlarge time on such terms as may meet the justice of the case. There is nowhere in the Electoral Act that it is provided that once the pre-trial conference has taken place in an election petition, or one of the parties has closed his case, a party cannot be allowed a hearing in the election petition as the trial Tribunal reasoned. On this position, reference was made to the case of: General M. Buhari & Anor. Vs. INEC & Ors. (Yet to be reported) – Delivered by the Court of Appeal, Abuja Division on 14/8/2007. This Court allowed a similar application on the ground that refusing it would infringe the provisions of Seetion36 (1) of the Constitution of the Federal Republic of Nigeria, 1999.

It was conceded that at the time this Court granted the application in the said General Buhari’s case, evidence had not been led in the petition. However, it was submitted that the fact that the 1st

Respondent had closed his case would not justify the refusal of 117th Respondent/Appellant’s application for enlargement of time, for as learned counsel for the 1st Respondent indicated in his alternative prayer, he could have been allowed by the trial Tribunal to recall his witnesses.

It was contended for the 117th Respondents/Appellant by his learned honourable counsel that the finding of the trial Tribunal that there was over-voting was not based on the pleadings of the parties. It is trite law that evidence based on a fact that was not pleaded goes to no issue and must be disregarded by the court. On this legal position, reference was made to the case of: International Messengers Nig. Ltd v. Engineer David Nwachukwu (2004) 6 SCNJ p. 57 at p. 71. The trial Tribunal made a different case for the 1st Respondent other than the one he had presented before it. It is trite law that courts are not permitted in law to do this. On this stance, reliance was placed on the case of: Chief Karimu Ajayi Arubo Vs. Fatai Ayinla Aiyeleru &, Ors. (1993) 2 SCNJ p. 90.

The learned counsel for the 1st Respondent raised a preliminary objection to the Appeal of the 117th Respondent/Appellant on the ground that he lacked locus standi and that the appeal was incompetent as no Issue was raised in respect of ground two of his notice and grounds of appeal.

It was contended for the 1st Respondent that the 117th Respondent/Appellant had no locus standi as he had no interest whosoever in the outcome of the Appeal. 1st Respondent submitted that pursuant to Section 243 of the 1999 Constitution, it is only a party who has a personal, individual or private grievance against the judgment of a court or a tribunal as the trial Tribunal, that can appeal against the judgment. It was the election of the 3rd Respondent that was nullified. The 4th Respondent was also ordered to conduct a fresh election. Hence, the judgment of the trial Tribunal not touching him, he is precluded from filing an appeal against it. On this legal position, reference was made to the cases of:

(1) Dr. Chris N. Ngige Vs. Peter Obi (2006) 14 NWLR (Pt. 999) p. 1 at pgs. 220 -221 and

(2) Balonwu Vs. Ikpeazu (2005) 13 NWLR (Pt. 942) p.479.

For persuasion, learned counsel referred to the books on Advocacy in Election Petitions by Hon. Justice Onamade at pages 271 to 273; the Constitution of the Federal Republic of Nigeria, Annotated by I. O. Smith 2nd Edition; Electoral law and Practice in Nigeria written in honour of Hon. Justice S.M.A Belgore, CJN by Aderemi Olatubora at pages 400 to 401 and the Civil Procedure in Nigeria, 2nd Edition by Fidelis Nwadialo.

1st Respondent’s learned counsel also contended that issue two did not flow from any of the Grounds of the Appeal. While the grounds of appeal relate to scale of justice, the issue complained of the unreason ability of the judgment which is not covered by the grounds of appeal before the Court. Ground two was therefore incompetent. On this stance, reliance was placed on the case of: General Oil Ltd v. Chief Ogunyade (1997) 4 NWLR (Pt. 501) p. 613. ”

learned counsel urged this Court to strike out the appeal of the 117th Respondent/Appellant for lack of “locus standi” and incompetence.

The learned counsel for the 1st Respondent alternatively, adopted issue one in the 117th Respondent/Appellant’s brief of argument and raised an additional issue for the determination of the appeal. The second issue reads thus:

“Whether the Judgment is against the weight of evidence.”

1st Respondent’s learned counsel adopted the arguments proffered in respect of issues 1, 2, 4, 5, & 6 in the 1st Respondent’s Brief of Argument filed on 21st September 2007 in response to the appeal filed by the 3rd Respondent/Appellant.

Learned counsel for the 117th Respondent/Appellant submitted that the objection of the 1st Respondent is completely misconceived.

The Appellant was sued by the 1st Respondent as the 116th Respondent in the petition before the lower Tribunal. The Appellant being a party in the proceedings, it can not be argued now that he has no ”locus-standi” to bring this appeal, for this will be tantamount to denying the Appellant his legitimate right of appeal in respect thereof.

Reference was made in this regard to the provisions of Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 which vests the Appellant with the right of appeal since he was a party in the petition filed at the trial Tribunal.

I have duly considered the submissions of all counsel in this second appeal. I am in agreement with the learned counsel for the 117th Respondent/Appellant that the preliminary objection of the 1st Respondent’s learned counsel against this appeal is misconceived. The 117th Respondent/Appellant was a party before the trial Tribunal and has the requisite “locus standi” under Section 243 of the 1999 Constitution to file this appeal. The first leg of the preliminary objection of the 1st Respondent’s counsel is hereby declared a failure.

The crux of this appeal is that the Appellant therein is aggrieved that he was allegedly denied fair hearing before the trial Tribunal when his application for extension of time to file his Reply to the petition out of time was refused.

I have adequately addressed this point under issue two of the main appeal supra. I do not wish to be tautological by revisiting my views thereon; suffice it to reiterate that the refusal of the said application of the Appellant was justly refused by the trial Tribunal, for it was not meritorious.

The grounds of appeal would be said to be incompetent when the respondent is left in doubt or without adequate information as to what the appellant is complaining about. See the cases of:

(1) Aderounmu Vs. Olowu (2000) 2 SCNJ p.180 and

(2) Unoh Vs. Industrial Training Governing Council (2001) 4 NWLR (Pt. 703) p. 281.

Appeals generally are heard and decided on issues distilled from the grounds of appeal filed before the court. Consequently, an issue not covered by any ground of appeal and vice versa is incompetent and would be struck out. See the cases of:

(1) Adelaja v. Faroiki & Anor. (1990) 2 NWLR (Pt. 131) p. 137 at p. 148:

(2) A. – G., Anambra State v. Onuselogu Enterp. Ltd (1987) 4 NWLR (Pt. 66) p. 547 and

(3) Management Enterp. Vs. Otusanya (1987) 2 NWLR (pt. 55) p. 179.

It is my view and I hold that, ground two of the grounds of appeal did not arise from the judgment of the Tribunal being appealed.

I am however at one with the second leg of the preliminary objection of the 1st Respondent’s learned counsel that issue two did not flow from any of the grounds of appeal. The grounds of appeal herein are therefore incompetent.

By virtue of Order 6 rule 6 of the Court of Appeal Rules, 2007, this Court has the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.

Even though I find that this appeal was filed within time contrary to the argument of the learned senior counsel for the Appellant that it was not; I hold that the grounds of appeal are incompetent and the notice of appeal consequently becomes incurably defective. This appeal is accordingly struck out for incompetence.

THIRD APPEAL

This appeal which is at the instance of the 3rd – 114th Respondents/Appellants is on all fours with the second appeal.

As adverted to by me supra at the commencement of this judgment, in the Appellants’ brief of argument filed on 13/9/07, no single issue was formulated in respect of or from the two, grounds of appeal vide the notice and grounds of appeal filed by the Appellants.

The learned counsel for the Appellants merely went into his arguments straight away. This style is quite strange to the basic norms of brief writing and less than elegant.

It is trite law that where no issue is formulated in respect of a ground of appeal, the ground of appeal would be deemed abandoned and struck out. See the cases of:

(1) Irayi v. Evigebe (1987) 3 NWLR (Pt. 61) p. 528:

(2) Obasi Vs. Onwuka (1987) 3 NWLR (pt. 61) p. 369 and

(3) Western Steel Works Vs. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) p. 304.

I hold that the two grounds of appeal in this third appeal have been abandoned.

Pursuant to the provisions of Order 6 rule 6 of the Court of Appeal Rules, 2007, I hereby strike out the two grounds of appeal accordingly, as I also discountenance the supposed arguments of the learned counsel in respect thereof.

This appeal is consequently incompetent and hereby struck out.

The three appeals have failed. The judgment of the trial Tribunal delivered on 6/8/07 is hereby affirmed accordingly.

I shall not award costs, the parties shall bear the costs of the appeals.

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Other Citations: (2008)LCN/2707(CA)