Mr. Ogbeiwi V. Hon. Moses Omo Egharevba & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.,

This is an appeal against the judgment of the Edo State Governorship and Legislative Houses Election Tribunal delivered on 22nd January, 2008. Sequel to the election held on 14th April, 2007, the 8th Respondent herein (INEC) declared the Appellant, Mr. Ogbeiwi {Etinosa} Ikponmwosa, the candidate of the Action Congress (AC), as the winner of the election – into the Edo State House of Assembly for Orhionmwon II Constituency. The 1st and 2nd Respondents herein were aggrieved by this declaration of result of election and thereby petitioned the Tribunal in a petition dated 11th May, 2007. The Respondents to the petition joined issues with the petitioners in their respective replies to the petition.

Issues having been duly joined, the petition went through a pre-hearing session consequent upon which, the lower Tribunal settled the following 3 issues as the real issues for determination in the petition. They are: –

i. Whether or not the votes scored by the 1st petitioner as pleaded in paragraph 7 of the petition were invalid votes cast at Ukpato and Evbuesi Wards on 14th April, 2007, and whether they were correctly recorded;

ii. Whether the result of the election as declared by INEC i.e. 13,987 votes for the 1st Respondent and 13,302 votes for the 1st petitioner as pleaded in paragraph 6 of the petition excluded the votes scored by both candidates at the election in polling units 18, 20 and 21 of Ukpato Ward and Units 002, 005, 009 and 010 of Evbuesi Wards of Orhionmwon Constituency II; and

iii. Whether or not during the election on 14th April, 2007 voting took place in Urhonigbe South Ward and whether as alleged by the 1st petitioner that result which emanated from that ward were invalid votes by reason of corrupt practices and non-compliance with the Electoral Act, 2006.

The respective parties to the petition adduced both oral and documentary evidence at the trial. Learned Counsel to the respective parties filed and exchanged written addresses. After considering the totality of evidence before it and the addresses of respective learned counsel, the Tribunal delivered its judgment wherein it upheld the petition and went further to set aside the election and return of the Appellant. It also held that it was the 1st Respondent herein, representing the PDP that ought to have been declared and returned as the duly elected candidate in the above said election.

The Appellant herein was dissatisfied with the nullification of his election. He appealed to this Court in a notice of appeal dated 25th January, 2008. Upon being served with the notice of appeal, the 1st and 2nd Respondents filed a Respondents’ Notice dated 27th February, 2008. It was brought pursuant to 0.9 rules 2 of the Court of Appeal 2007.

With leave of this Court, the appellant filed and argued additional grounds of appeal. Subsequent to this leave, the appellant filed a composite brief of argument incorporating arguments and submissions on issues distilled from both the original and additional grounds of appeal. The brief was filed on 20/05/08 and it is dated 19/05/08. In response to the appellant’s brief of argument, the 1st and 2nd Respondents filed a brief of argument dated 23/05/08 but filed on 26/05/08. This brief also incorporates arguments and submissions on the Respondent’s notice. The response of the 3rd – 8th Respondents came in a brief of argument dated and filed on 26/5/08. To respond to some of the submissions and arguments in the briefs of the 2 sets of Respondents, the appellant filed a reply brief dated 2nd June, 2008. From the 10 grounds of appeal the appellant identified and formulated 5 issues for determination in this appeal. They are as follows:-

1) Whether the Tribunal was right when it refused to pronounce on the propriety or otherwise of the reply filed on behalf of the 2nd, 3rd, 4th, 6th and 7th Respondents’ and whether the reply filed was valid;

2) Whether the parties before the Tribunal joined issues on the fact that results of the election in Units 2 , 5 , 9 and 10 of Evbuesi Ward were recorded on pieces of paper instead of Form EC8A and if the answer is in the negative whether the Tribunal was right when it cancelled the result of the election in Units 2, 5 , 9 and 10 of Evbuesi Ward;

3) Whether the learned Justices of the Tribunal were right when they held that the 1st Respondent (Appellant herein) did not conform to or satisfy the provisions of paragraphs 12(2) and 15 of the Rules of Procedure for election Petition in his reply and thus the evidence of RW12, RW17, RW18 and RW19 regarding Unit 8 of Ukpato Ward and Units 20 – 28 of Ugboko Ward are inadmissible;

4) Whether the Tribunal was correct when it held that there was no election in Urhonigbe South Ward and proceeded to cancel the result of all the Units in the said Ward, and

5) Whether the Tribunal was correct in law to have proceeded to declare the petitioner as the duly elected candidate in the disputed election, having regard to the fact that the Tribunal had nullified/cancelled the results of all the Units in Urhonigbe South Ward and some other Units in Ukpato Ward and the fact that there was no election in Ugwu Ward.

The 1st and 2nd Respondents were not quite or fully satisfied with the issues formulated by the appellant. They chose to formulate their own 5 issues employing different phraseology. According to the 1st and 2nd Respondents, the following are the proper issues for determination in this appeal. They are: –

1) Whether the trial Tribunal was right in holding that the votes scored in Units 18, 20 and 21 of Ukpato Ward and Units 002, 005, 009 and 010 of Evbuesi Ward ought to from part of the overall scores of the parties in the election and if so whether the tribunal was right in excluding the votes on the unpleaded facts or issues of non-accreditation of voters or over voting in those Units;

2) Whether having regard to the settled issue for determination on the disputed results from Ukpato and Evbuesi Wards, the learned judges of the Tribunal were right in ignoring the case/arguments canvassed by the Appellant’s Counsel on Units 4 and 14 of Ukpato Ward and Units 2, 4, 5, 15, 16, 17, 18, 19, 20, 21, 24, 26, 27 and 28 of Ugboko Ward as going to no issues;

3) Whether the trial Tribunal was right in holding that no election took place in Urhonigbe South Ward at all or in accordance with the Electoral Act 2006 and thereby declaring the votes emanating from that Ward as invalid;

4) Whether the Election Petition Tribunal having found and determined that the Appellant was not validly elected on the grounds that he did not score a majority of lawful votes cast at the election. (sic) The Tribunal was therefore right in declaring the petitioner/1st Respondent found to have scored the majority of lawful votes at the election and therefore duly elected and returned; and

5) Whether there are no other grounds of reasons other than those given by the learned trial judge for also affirming the decisions of the lower Tribunal.

The other set of Respondents, namely 3rd – 8th Respondents adopted the 5 issues formulated by the appellant.

At the hearing of the appeal, learned Counsel to the Appellant Mr. Rotimi Ogunesan, led by Mr. Oyeyipo SAN, seized the opportunity to explain and underscore some of the remarkable features of this appeal as argued in the briefs of respective learned Counsel. He also made further submissions on his issues 1 and 4 after which he adopted his main brief of argument as well as the reply brief and relied on same in urging the court to allow t his appeal. On h is own part, learned Counsel to the 1st and 2nd Respondents, Mr. Aghimien, SAN, referred to his brief of argument and pointed out the various parts of it in which he clarified the points raised by learned Counsel Mr. Ogunesan. He went further to emphasize these points before he adopted and relied on his brief of argument and urged the court to dismiss this appeal and affirm the decision of the lower Tribunal more particularly on the reasons set out in the Respondents’ notice and argued in his brief. Learned Counsel Mr. Uzamere for the 3rd – 8th Respondents referred to and adopted, and relied on his brief of argument as well as that of the appellant. He also urged this Court to set a side the judgment of the lower Tribunal. In due course and as circumstances may permit, I will recall some of those additional arguments made by Counsel after the ones in their various briefs. The main features of this matter as can be seen and gathered in the petition before the lower court are contained in the grounds for the petition which are:-

1. That the 1st Respondent’s {Appellant herein} election was invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act 2006, Regulations and Guidelines for Elections made pursuant thereto, which non-compliance also substantially affected the result of the election; and
2. That the 1st Respondent {appellant herein} was not duly elected by a majority of lawful votes cast at the election.

It is also worthwhile to set out the case the Petitioners sought to make out before the lower Tribunal. All the efforts of the petitioners at the trial were aimed at proving that:

a) The votes scored by the Petitioners in some Units of Ukpato Ward were not correctly recorded;

b) The votes scored by the Petitioners at some Units of Evbuesi Ward were not correctly recorded; and

c) There was no election at all at Urhonigbe South Ward of the Orhionmwon II Constituency and that the results and return of votes emanating therefrom were invalid by reason of corrupt practices and non-compliance with the Electoral Act, 2006 and the Regulations and Guidelines for elections made pursuant thereto.

According to the Petitioners, the following were the correct and lawful scores for the candidates at the election:-

Ukpato Ward

Unit 18 – PDP 291, AC 1

Unit 20 – PDP 270, AC 2

Unit 21 – PDP 420, AC 27

Evbuesi Ward

Unit 002 – PDP 590, AC 6

Unit 005 – PDP 989, AC 9

Unit 009 – PDP 389, AC 9

Unit 010 – PDP 789, AC 7

In arguing his issue No. I learned Counsel Mr. Ogunesan referred to and set out the averments of the Petitioners in paragraphs 5(b) and (c) of the petition and explained that these key and material averments were admitted by the 2nd, 3rd, 4th, 6th and 7th Respondents in paragraphs 4 to 11 of their joint reply to the petition. According to learned Counsel, this approach of INEC is what makes this matter unique and strange. While referring to the provisions of paragraph 33 and 47(1) of the 1st schedule to the Electoral Act, 2006, learned Counsel argued that from a combined reading and application of these 2 provisions it is not open for any officer of INEC that took part in the conduct of an election to elect not to defend the election after results have been declared and which declaration of result was being challenged. Learned Counsel added that in his view these provisions were made to prevent any incidence of collusion between a petitioner and INEC officials. He then referred to the decision of this court in NGIGE V. OBI (2006) 14 NWLR (PT. 999) 1 at 224 as per OMOKRI, JCA, where similar provisions to paragraphs 33 and 47(1) (supra) were considered and decided upon. Learned Counsel quoted very extensively from the judgment. According to learned Counsel it is the duty of INEC to defend the elections it conducted and it cannot deviate or depart from this duty by calling for a nullification of an election it conducted. Upon this argument and submissions, learned Counsel Mr. Ogunesan urged this Court to strike out the joint-reply filed by INEC.

On his issue two and the election at Units 2, 5, 9 and 10 of Evbuesi Ward, learned Counsel referred to and reviewed what he considered to be the relevant parts of the pleadings of the parties and argued that the issue of whether the result of the election in Units 2, 5, 9 and 10 of Evbuesi Ward were recorded on pieces of paper before actual collation was not an issue before the Tribunal. According to learned Counsel the case before the lower tribunal was whether the scores declared by INEC in those Units were the correct scores or the ones pleaded by the Petitioners.

According to learned Counsel, after examining the pleadings and the documentary evidence on record and available to it, the Tribunal came to a finding that the results declared for these units cannot stand because of non-accreditation of voters and generally characterized by incidences of over-voting. Learned Counsel quoted extensively from the relevant portions of the judgment of the lower Tribunal and maintained that this decision is spot on and cannot be faulted. However, learned Counsel attacked the aspect of the decision of the Tribunal where it decided on the question of whether result were recorded on pieces of paper rather than proper INEC Form EC8A (1). He faulted this finding as wrong because it was not based on pleaded facts. He maintained that having considered the real issue placed before it on the legality of the election and validity of the votes cast at the election for the enumerated Units of Evbuesi Ward, and having resolved same against the petitioner, the lower Tribunal had no business going into unpleaded facts. He then urged this court to hold that the lower Tribunal was wrong to have relied on a fact which was not pleaded and based their decision thereon. He also urged this Court to resolve issue 2 in favour of the appellant.

With respect to issue No.3, learned Counsel referred to paragraphs 11 and 12 of the reply of the 1st Respondent to the petition vis-a-vis its paragraph 5 and pointed out that the 1st respondent at the court below, apart from stating in his pleadings that he will be challenging the whole of 13,302 votes allegedly scored by the petitioners, went further to attach witnesses statement giving details of the irregularities and corrupt practices in Unit 8 of Ukpato Ward. According to learned Counsel, in his assessment of the evidence of these witnesses it was glaring that the elections at Ugboko Ward and Unit 8 of Ukpato Ward were characterized by corrupt practices and non-compliance with the provisions of the Electoral Act, 2006. Still on this point, learned Counsel recalled that the lower Tribunal, in its judgment, reproduced paragraph 11 of the reply to the petition by the 1st Respondent along side with paragraphs 12(2), 15 and 42 of the Rules of Procedure for Election petitions made pursuant to the Electoral Act and further quoted extensively from the findings of the lower Tribunal on this issue, and submitted that the lower Tribunal was wrong in its conclusion on the pleadings of the 1st Respondent. He also argued very forcefully that the petitioners were not taken unaware in the entire circumstance of this matter and therefore the Tribunal got into serious error when it held that the evidence led by the 1st Respondent! Appellant amounted to “stealing a match on the petitioners”.

Further to this, learned Counsel remarked that the lower Tribunal took a very restrictive view of paragraph 11 of the reply of the 1st Respondent to the petition and so also with respect to paragraphs 12(2) and 15 (supra). Upon these remarks, he submitted that a Court, in interpreting a document or a statutory provision ought to interpret same broadly and not restrictively. He added also that in excluding the evidence led by the appellant at the Court below as inadmissible, the Tribunal interpreted paragraph 12(2) in isolation of paragraph 2 of the Courts Practice Directions. Learned Counsel maintained that if the lower court had properly considered the fact that the Appellant had filed witnesses’ statements in compliance with paragraph 2 of the Practice Direction; it would not have come to the same conclusion. It. is also the submission of learned Counsel Mr. Ogunesan that the case of HASHIDU V. GOJE (2003) 15 NWLR (PT.643) 352 relied on by the lower Tribunal to arrive at its decision was totally inapplicable because at the time it was decided there were no Practice Direction as in the current paragraph 2.

In the opinion of learned Counsel there was nothing sacrosanct about the issues for determination formulated after and settled after the pre-hearing session. According to learned Counsel, these issues, as settled, were only meant to guide the Tribunal. He added that, if a Court or Tribunal, even at the stage of address, finds out that an issue arising for determination was not included in the issues formulated during or at the pre-trial stage, does not preclude the Tribunal from determining it. He then submitted, in conclusion, that because the 1st Respondent! Appellant had led credible evidence which showed that the election in Unit 8 of Ukpato Ward and Units 20 – 28 of Ugboko Ward were riddled with corrupt practices and non-compliance, the Tribunal ought to have nullified all the votes that emanated from those units.

On the very vexed issue of whether or not elections were held at Urhonigbe South Ward, as highlighted in his issue No.4, learned Counsel pointed out that the proper answer to this question can be made by resorting to the legal principle that it is he who asserts that must prove. According to him, for the purpose of this matter, the burden lies on the petitioners to prove that there were no elections at Urhonigbe South Ward. In an effort to show whether the petitioners/1st and 2nd Respondents have discharged this burden, learned Counsel referred to the evidence of PW1, more particularly his response to cross-examination at page 406 of the record of appeal. In his comment on this evidence, learned Counsel pointed out that the pith and substance of the evidence of PW1 which the Tribunal believed was that he was forcefully dispossessed of the election materials meant for the election at Urhonigbe South Ward. According to learned Counsel, it is this evidence of PW1 that must be put together and considered along side the evidence of the 1st Respondent/Appellant and his witnesses.

He was quick to highlight the salient facts emanating from such testimonies. It was, he added, that PW1 absconded from his duty post in collusion with the petitioners in order to frustrate the election in that Ward and to ensure that the 1st respondent/Appellant was deprived of the votes from his stronghold electoral area.

Upon this background, learned Counsel suggested that the lower Tribunal did not appraise or weigh a vital aspect of the evidence of the 1st Respondent/Appellant and his witnesses. He then submitted that this was very fatal to the ultimate findings of the lower Tribunal that there were no elections at Urhonigbe South Ward. Learned Counsel then pointed out that a Court or Tribunal has a duty to weigh all the evidence placed before it before reaching a decision on an issue. He added further that in this case the Tribunal failed to properly assess the evidence of the 1st Respondent! Appellant against that of the Petitioners/I st and 2nd Respondents, He referred to the cases of MOGAJI V. ODOFIN (1978) 4 SC 91 and IMAH V. OKOGBE (1993) 9 NWLR (PT.316) 159 at 177 – 178 and urged this Court to re-evaluate the evidence on record because if was not an issue that was dependent on demeanour or credibility of the witnesses before the lower Court,

In concluding his arguments on this issue, learned Counsel highlighted some of the special and unique features of this matter against the concept or presumption of regularity provided by Section 114 of the Evidence Act as interpreted and applied in NWOBODO V. ONOH (1984) 1 SCNLR 1 at 32 and OMOBORIOWO V. AJASIN (1984) 1 SCNLR 108 at 122. Learned Counsel pointed out that the lower Tribunal wrongly placed the burden of proof on the 1st Respondent/ Appellant when the presumption of regularity had not been rebutted while emphazing that there is in law a rebuttable presumption that the result of any election declared by the body statutorily charged with the responsibility to conduct such an election is correct and authentic, the onus is on the person who denies its correctness and authenticity to rebut the presumption, On that premise, learned Counsel urged this Court to hold that based on a proper appraisal and evaluation of the evidence before the lower Tribunal the petitioners at the Court below and INEC did not prove that there were no elections at Urhonigbe South Ward.

I will consider issue 5 as formulated by the appellant with issue 4 as formulated and argued in the brief of the 1st and 2nd Respondents later in the course of this judgment.

The brief of the 1st and 2nd Respondents was settled by learned Counsel Elder J.O. Aghimien, SAN. In arguing the 1st issue he formulated, Elder Aghimien SAN began by delimiting the amplitude of the case of the Petitioners (1st and 2nd Respondents herein) at the lower court and which had also filtered and found its way to this Court courtesy of this appeal. Learned counsel tried to set the records clear and straight by pointing out that the complaint of the 1st and 2nd Respondents herein, as petitioners before the lower court with respect to the elections at Ukpato and Evbuesi Wards was very specifically

restricted to Units 18, 20 and 21 of Ukpato Ward and Units 002, 005, 009 and 010 of Evbuesi Ward.

The Learned SAN referred to a part of the judgment of the lower Court, more particularly its observations and findings on the evidence, oral and documentary, on this issue and submitted that the lower Tribunal ought not to have considered voters registers or the issue of non-accreditation of voters in arriving at its ultimate decision that no election was held in those units. Further to this Elder Aghimien SAN quoted from the judgment of the Court below and maintained that the ultimate finding that there was no election does not have a direct relationship with the quality of evidence led by the petitioners and which the Tribunal accepted as credible. According to the learned SAN, the lower court misdirected itself on the use of voters registers (Exhibits 24A, 24B and 24C) in considering whether or not accreditation was done before elections took place in those Units. This is so, according Iearned Counsel, because the use of voters registers and accreditation of voters did not form part of the issues joined as between the petitioners and the 1st Respondent (Appellant herein) in the extant pleadings before the court.

Paragraph 2.15 at page 15 of the brief appears to me to contain arguments and submissions in support of the Respondents’ notice. In this paragraph learned Counsel used very strong language and really came hard on the findings of the lower Tribunal subsequent to the use of voters’ registers and considering accreditation of voters as an integral part of the electoral process. This procedure adopted by the lower Tribunal in the opinion of learned Counsel is a misdirection that has occasioned a serious miscarriage of justice and a big blow to the case of the Petitioners/1st and 2nd Respondents. He maintained that if the lower Tribunal had relied strictly on the result sheets of the 3 units, which it held in its judgment to be authentic, the votes scored by the Petitioners/1st and 2nd Respondents in those units would not have been excluded. If those votes, wrongly excluded, are now added the decision could be affirmed on other grounds in favour of the 1st and 2nd Respondents herein. He urged this court to hold that the exclusion of votes for the 1st and 2nd Respondents herein was wrong and affirm the judgment of the lower Tribunal on this ground.

Issue No.2 was argued in support of the findings of the Tribunal on the pleadings as they relate to the elections for Units 4 and 14 of Ukpato Ward and Units 4, 5, 15, 16, 17 – 21, 24, 26 – 28 of Ugboko Ward. On this issue, learned Counsel Elder Aghimien SAN pointed out that the Tribunal was correct and spot on when it held in its judgment at P. 725 of the record that the appellant herein could not in general terms have challenged the total votes scored by the petitioners without either filing a cross-petition or objection to the votes scored by the petitioner in compliance with the provisions of paragraphs 12, 14 and 15 of the 1st schedule to the Electoral Act 2006. In conclusion, the learned SAN submitted that the Tribunal was right when it ignored and rejected the arguments canvassed on behalf of the 1st Respondent/Appellant on the results of the elections in respect of Units 4 and 14 of Ukpato Ward and Units 2, 4, 5, 15 to 21, 24, 26 to 28 of Ugboko Ward. He added that the finding of the Tribunal that all evidence led on these Units of the 2 Wards was a non-issue because it was not on any pleaded facts and also not being part of the issues settled for trial at the pre-hearing session, cannot be faulted as it was reasonable in the circumstance. Finally, the learned SAN pointed out that issue 2 formulated by the Appellant from ground 3 of the grounds of appeal must fail. He urged this court to so hold and proceed further to dismiss this appeal.

On his issue No.3, learned Counsel Elder Aghimien SAN started with an attempt to capture the real essence of the dispute between the parties in this court and also as it was at the lower court. In underscoring this point, learned Counsel said that the petitioners pleaded copiously in paragraph 10 of the petition that there was no voting at Urhonigbe South Ward and that the results emanating therefrom were invalid by reasons of corrupt practices and noncompliance with the Electoral Act 2006. He pointed out further that, INEC, being statutorily charged with the duty of conducting this election, admitted that there were no elections. He went on to pose a question whether the Appellant can effectively contradict the admissions of INEC in this matter. He volunteered and answer in the negative.

Yes. I understand this to be the heart and soul of this appeal. It is a seriously recurring decimal. It was the decision by the Tribunal on this question that entirely changed the result of the election. It is indeed a very crucial question. Before going into his main submissions, learned Counsel set out the averments in paragraphs 9 and 10 of INEC’s reply, admitting that there were no elections at Urhonigbe South Ward. He went further to the deposition of RW20, Mr. Etim Umoh, more particularly paragraphs 6 – 10 thereof, as well as the depositions of PW1, Mr. Justus Russell and that of Mrs. Margaret Famous, the Assistant Electoral Officer for Urhonigbe Ward. It is against this background that learned Counsel said that there are sufficient facts and evidence to come to a finding that there were no elections at Urhonigbe South Ward. According to learned Counsel the position of the law, is that the 1st Respondent! Appellant who alleged in the affirmative that elections took place has the onus of proving that which he asserted. He submitted that the 1st Respondent! Appellant failed to convince the Tribunal that elections took place.

Another remarkable argument of learned Counsel Mr. Aghimien SAN, is his suggestion at paragraph 2.63 of his brief that the irresistible inferences, as he called them, to be drawn from the admission by INEC and the depositions of its staff PW1, RW20 and Mrs. Margaret Famous, is that no elections took place at Urhonigbe South Ward. Further to this suggestion, the learned SAN also remarked that it would be instructive to note paragraph 12 of the reply of the 1st Respondent! Appellant to the petition to the effect that he too would be relying on the evidence of INEC’s witnesses. While commenting on the evidence of RW20, the learned SAN wondered how he would come to court to give evidence contrary to the pleadings of INEC.

According to learned Counsel it is an established principle of pleadings that there is no issue between parties on a matter which has been admitted by them in their pleadings and evidence will not generally be allowed on such facts that have been admitted. He referred to REYNOLDS V. ROCKONOH (2005) 10 MJSC 159 at 171 B -D, INDIA GENERAL INS. CO. NIG. LTD V. THAWARDS (1978) 3 SC 143, CHIEF OKPA OKE V. EGBUONU & ORS (1941) 7 WACA 53 at 53 and PIONEER PLASTIC CONTAINERS & EXCISE (1967) CH.597. He concluded his argument on this point by submitting that the Petitioners/1st and 2nd respondents have no duty or obligations to lead evidence on facts already admitted by INEC, who had the statutory responsibilities to conduct the elections under reference. He submitted further that, though without conceding, even if there was anything that looks like an election at Urhonigbe South Ward it was not in accordance with the provisions of the Electoral Act 2006 and the Guidelines made pursuant thereto.

Upon these arguments and submissions, Elder Aghimien SAN forcefully maintained that the findings and conclusions of the lower Tribunal that no elections took place at Urhonigbe South Ward was in order as it was supported by sufficient evidence and ought not be disturbed or interfered with. Also, the decision of the Tribunal to deduct the votes of the 1st Respondent/Appellant from the alleged election was a reasonable logical consequence of annulling the purported election. He urged this court to answer the question posed in this issue in the affirmative.

Before whatever arguments on his issue No.4, Learned Counsel Elder Aghimien SAN re-captured and outlined the positions of the respective parties in this appeal. According to him the case of the Petitioners/l 51 and 2nd Respondents is that the candidate of the PDP won the 14th April, 2007 election for Urhomwan Constituency II of the Edo State House of Assembly by a majority of lawful votes cast at the election on the ground that his votes were wrongly collated or calculated and that no elections took place at Urhonigbe South Ward. After this, he then suggested that the case of the 1st Respondent! Appellant has been that he won the election by a majority of lawful votes and that it was conducted in substantial compliance with the provisions of the Electoral Act 2006.

According to learned Counsel, the Appellant has boxed himself to his own comer and as a way out he is now urging this court to order for a re-run election. This, in the opinion of the learned SAN is a strange prayer and is so belated. He argued that the prayer for are-run election is unacceptable because it is not contained a san alternative relief in the notice and grounds of appeal. He went further to argue that it is trite law that a Court or Tribunal lacks the jurisdiction and competence to grant a relief not sought in a petition or notice and grounds of appeal. Also, Elder Aghimien, SAN maintained that the relief for a re-run election is not an ancillary relief in the circumstance of this case because in whatever way the election result is calculated, the Petitioner/1st Respondent would have clearly won the election by a majority of lawful votes cast at the election. He urged this court to resolve this issue in favour of the 1st and 2nd Respondents and urged that this appeal be dismissed with substantial costs.

Learned counsel to the 3rd – 8th Respondents, Chief Osaheni Uzamere filed a brief of argument dated 26-05-08. He adopted and relied on this brief at the hearing of this appeal. He also chose to rely on the briefs filed by learned Counsel to the Appellants. In the circumstances of this appeal, this approach of learned Counsel Chief Uzamere appears to be a little bit unconventional. While learned Counsel to the Petitioners/1st and 2nd Respondents firmly believes that INEC admitted the most material and significant averments in the petition before the court below, the same INEC represented by the same Counsel now appears to be in full support of the case of the Appellants against the decision of the lower Tribunal. Some of the strange and unconventional steps taken b y the 3rd – 8th Respondents will become more glaring and manifest in the course of this judgment. Suffice it to say, however, that learned Counsel Chief Uzamere adopted the issues formulated and argued by the Appellants. With respect to issue one, Learned Counsel Chief Uzamere, after referring to the evidence of RW12, RW17, RW18 and RW19 and what he called “tons” of Exhibits tendered in relation to the elections at Unit 8 of Ukpato Ward and all the Units of Ugboko Ward, maintained that it was calamitous for the lower Tribunal to turn a blind eye to this evidence. He submitted that the Court below was wrong to have ignored the copious evidence adduced by the Appellant to the effect that elections in Ugboko Ward were seriously flawed because of lack of details in paragraph II of the reply of the 1st Respondent to the petition when it is the law that in election petition evidence can be led in proof of even unpleaded facts. He urged this Court to resolve issue No. 1 in favour of the Appellants. Against the 2nd issue, learned Counsel Chief Uzamere submitted that the lower Court wrongly evaluated the evidence and came to the wrong conclusions with regards to the contentions Units of Evbuesi Ward. He urged this Court to resolve this issue in favour of the Appellants as well.

In opening his arguments on issue No.3, learned Counsel Chief Uzamere began with an explanation that this issue seeks to deal with the purport of paragraphs 12(2), 15 and 42(1) of the 1st Schedule to the Electoral Act, 2006. He explained further that the lower Tribunal was of the view that because the 1st Respondent! Appellant did not comply with the specific provisions of paragraphs 12(2) and 15, which require details of any malpractices complained of, he cannot adduce some of the evidence he sought to adduce in proof of such malpractices. Against this background, Learned Counsel submitted that the fact that the 1st Respondent! Appellant did not give details of what the ,malpractices were would not vitiate the evidence before the Tribunal to discredit the elections in Ugboko Ward because it is the law that in pursuit of justice in election matters, facts not pleaded in the petition and/or the Reply thereto can be used in order to arrive at a just decision. He referred to the case of INEC V. KORSI (1999) 4 NWLR (PT.599) 341 at 342 where a provision, pari materia with paragraph 15, was interpreted and applied to allow an Election Tribunal to inquire into issues not raised in the pleadings provided such issues are necessary for the purpose of a proper determination of the petition. Further to this, he also referred to AGOMUO V. OGWUEGBU (1999) 4 NWLR (PT.599) 405 where, according to Chief Uzamere, of Counsel, it was specifically held that: “Generally, evidence led on facts not pleaded goes to no issue. However, election petition being a special specie of cases may not be bound by that trite principle of law. The reason for this is that the primary and overriding duty of an Election Tribunal is to do justice on all relevant facts placed before it.”

Upon these 2 decisions learned Counsel submitted that it was wrong for the Tribunal to shut out the copious evidence led by the Appellant with regard to the elections at Ugboko Ward. He urged .this Court to resolve this issue in favour of the Appellant.

On the very contentions issue of the elections at Urhonigbe South Ward in issue No.4, Learned Counsel reviewed the evidence of some of the witnesses before the Tribunal and suggested that the evidence before the Tribunal was not properly evaluated. He also argued that it was wrong for the Tribunal to rely on the evidence of PW1 alone, while totally ignoring the evidence of RW14, PW15 and RW20 in deciding this crucial issue. He characterised the evidence of RW14, Nosa Izekor, and RW20, Etim Umoh as overwhelming. He urged this Court to re-evaluate all the relevant evidence on record and hold that there were elections at Urhonigbe South Ward.

According to learned Counsel, the evidence of PW1 ought to be treated with suspicion and caution because he was not among the persons INEC hired as Ad-hoc staff. He then wondered how the Tribunal ignored the oral evidence of RW20 at pages 735-736 where the witness said that elections took place at Urhonigbe South Ward and through whom Exhibits 25 – 30 were tendered and admitted. He also wondered how the Tribunal could disregard the evidence of 6 witnesses who said they were physically present at Urhonigbe South Ward and indeed saw that elections were held and believe PW1 who was not at Urhonigbe South Ward and whose evidence was severely discredited during cross-examination, and shown to be a meddlesome crook.

On paragraphs 9 – 11 of INEC’s reply learned Counsel explained that pleadings are not evidence and if INEC did not lead evidence in support of its averments they go to no issue. He added further that the Petitioners/Respondents must prove their case not merely based on INEC’s admission but on credible evidence in support of their averment. He explained that when R W20 did not lead evidence in support of INEC’s pleadings, the averment in paragraphs 9 – 11 of INEC’s Reply are deemed as having been abandoned. He urged this Court to re-evaluate all the evidence on this issue and hold that there indeed were elections at Urhonigbe South Ward.

In arguing issue No.4, Learned Counsel Chief Uzamere added more confusion to an already unwholesome and unconventional situation. There is not much by way of arguments or submissions. There were, however, a number of prayers, either for an order for a re-run election in the entire constituency or in the affected Units and/or Wards where there was non-accreditation of voters, over-voting, ballot box stuffing etc. The bottom line, here is that the entire brief of the 3rd – 8th Respondents entirely and significantly support the case of the Appellants.

The reply brief characterised the arguments of the 1st and 2nd Respondents on issue No. 1 in their brief as made in support of the Respondents’ notice but ended up being an attack on crucial findings of the Tribunal in its judgment. Learned Counsel to the Appellant referred to some decided cases where the nature and effect of a Cross-appeal and a Respondent’s notice were distinguished by the Supreme Court. The cases are OGUMA V. IBWA (1988) 1 NWLR (PT.93) 658 as per AGBAJE JSC at 668 and AFRICAN SEAWAYS LTD V. NIGERIAN DREDGING ROADS and GENERAL WORKS LTD (1977) 3 SC 235 as per IRIKEFE JSC at 247. Upon these decisions learned Counsel to the Appellant explained that in this appeal, the Respondents’ notice and the arguments at page 14 paragraph 2.11 and page 20 paragraph 2.29 of the brief of the 1st and 2nd Respondents attacked crucial and fundamental findings and conclusions of the Tribunal. He then argued that this type of attack cannot be validly made by a party that filed a Respondent’s notice. Rather, learned Counsel opined, only a Cross-Appellant has the leverage to mount such a profound attack on the judgment of a Court upon which it appealed against. I do not find all the remaining submissions in the reply brief either relevant or of any meaningful to a fair and just determination of this appeal. I therefore accordingly discountenance same.

It is essential and necessary to state at the outset that the facts and circumstances of this appeal are greatly intriguing in character and outlook. It is not normal for the facts of a matter to turn out as such. Be it as it may, this appeal is about the decision of the lower Court invalidating the votes cast for the parties at Units 18, 20 and 21 of Ukpato Ward and Units 002, 005, 009 and 010 of Evbuesi Ward as well as the finding that there were no elections at Urhonigbe South Ward thereby leading to the purported votes credited to the respective parties being cancelled. I have hereinabove set out these 3 crucial issues as they appeared to have arisen based on the pleadings before that Court.

In determining whether there were elections at Units 18, 20 and 21 of Ukpato Ward, the Tribunal considered the oral evidence of the witnesses of the parties. At the end of that exercise, the Tribunal saw that both oral testimonies were contradictory of one another because of the respective background of the witnesses and based on whose case they came to Court to advance. If it was for the sake of oral evidence alone, the matter would have been deadlocked. This type of logjam or deadlock is not uncommon in trials in this Country, it is more so pronounced in trials on election matters. It is all too frequent that witnesses in election matters fail to purge themselves of their partisan dispositions when they come to give evidence in Court. It is also not unknown that even the supposed unbiased umpire charged with the statutory responsibility to conduct elections in this Country (INEC) had on occasions been found to manifest partisan interests in favour of one political party or another. See NGIGE V. OBI (supra).

It is in order to get round this well-known and often encountered legal logjam that the courts evolved the principle that where there are oral as well as documentary evidence the documentary evidence should be used as a hanger to assess the oral evidence. It is to this extent that the Courts of this Country have now come to take it as well settled that in election matters, in so far as available, documentary evidence is the best evidence. It is therefore the genre of evidence or a combination of them that is or are relevant, sound, direct and credible that must be used in arriving at a decision by any Court.

In arriving at the decision that there were elections at Units 18, 20, and 21 of Ukpato Ward, the lower Tribunal discarded the conflicting oral testimonies of the witnesses and relied on the documentary evidence in Exhibits 2, 3, 3A, 4 and 4A Further to its clinical examination of these Exhibits and its finding that elections were held, the lower Court further considered Exhibits 24A, 24B and 24c and decided that the elections held and the results/votes emanating therefrom were invalid because of incidences of over-voting and non-accreditation. While the Appellant is silent on this issue the 1st and 2nd Respondents made a heavy weather on this finding. According to the 1st and 2nd Respondents these findings were made outside the pleadings and were not part of the issues settled for trial at the pre-hearing conference.

It is taken for granted that INEC is the official body and competent authority responsible for the conduct of elections into certain political offices, including the election into the office in issue in this appeal. See INEC V. RAY (2004) 14 NWLR (PT.892) 92. The complaint here is on the finding on non-accreditation and over-voting. It is without any doubt that the concept of election refers to the process of accreditation, voting, collation, recording on all relevant INEC Forms and declaration of results. It therefore goes without saying that accreditation of voters is an integral part of the electoral process. The lower Tribunal relied on the decision of this Court in AJADI V. AJIBOLA (2004) 16 NWLR (PT.898) 91 as per ADEKEYE, JCA at 183. Also in dismissing the objection that accreditation of voters was not pleaded, the lower Court held that accreditation is a matter of law which ought not to form part of the pleadings. The arguments and submissions of Counsel to the 1st and 2nd Respondents on the inadequacy of pleadings, in my view is a bit misplaced and off-mark. This is because whenever the issue of voting and/or votes is an issue in an election matter, the voters register, so long and as far as it has been adduced in evidence it becomes a relevant evidence to be considered to answer the question as to whether voting had taken place at a particular election and if indeed there was voting, what were the valid and lawful votes cast at that election and also to determine who was the candidate/political party, that could be declared as the winner of the election with majority of lawful votes.

The Electoral Act 2006 provides that an Election Tribunal which determines that a candidate returned as elected was not validly elected on any ground, may nullify the election. Over-voting is one of the grounds on which an election result can be overturned by an Election Tribunal. Where there is no averment in an election petition on non-accreditation of voters or over-voting and evidence was led before the Tribunal pointing conclusively to incidences of non accreditation and/or over-voting, that notwithstanding, an Election Tribunal can, in my view, nullify and set aside that election. It is also my considered view that in the instant appeal, the lower Tribunal did not over step its lawful bounds by nullifying the elections held in certain wards where non-accreditation and over-voting was manifest. Further to this, I have myself looked at Exhibits 2, 3, 3A, 44A, 24A, 24B and 24C and I am of the view that the lower Court did an impeccable exercise in the evaluation of the documentary evidence adduced with respect to the elections at Units 18, 20 and 21 of Ukpato. The findings of the Tribunal on this issue is fully reasonably supported by the evidence on record. I do not therefore see any reason to interfere with the findings on Units 18, 20 and 21 of Ukpato Ward. This issue is therefore resolved against the 1st and 2nd Respondents.

With respect to the elections at Units 2, 5, 9 and 10 of Evbuesi Ward. The circumstances are different from those at Ukpato Ward or Ugboko Ward. In Units 2, 5, 9 and 10 of Evbuesi Ward there was a seeming agreement and consensus in the oral evidence of the parties that elections did indeed hold, but the contentions issue remained the method of compilation and collation of the results of the elections. In order to get to the root of matter and evolve a solution, the Tribunal just like it did in the previous situation, resorted to documentary evidence before it. For maximum effect, I wish to quote very extensively from the judgment of the lower Court at pages 730 – 732 of the record as follows:-

“From our microscopic examination of the results, it is evident that P.W.7, P.W.8 and P.W.9 respectively signed Exhibits 5A/6, 6A and 18/19A being results for units 2, 9, and 5 of Evbuesi; while RW.11 endorsed Exhibit 20, another result for unit 2. We have also discovered, to our chagrin, that in Exhibit 24B, the Register of Voters for unit 2, only about 48 Voters were accredited whereas about 212 votes were cast thereat. Furthermore, from Exhibit 6, the unit 2 results, about 600 persons voted when there are 500 registered voters in Exhibit 24D. Ditto for unit 5 of Evbuesi where in Exhibit 24E, the Register of voters thereof, there are 480 voters and the votes scored in exhibit 19A, that unit result are 998.

With respect to Unit 9 of Evbuesi ward, Exhibit 7, the unit result, is wholly incongruous. In that exhibit, 400 ballot papers were supplied, the same 400 were unused and the scores of the parties were 400. This defiles all reasoning since the purport is that 400 votes were scored from 400 unused ballot papers that were supplied. Against at unit 10 of Evbuesi ward, the petitioners insist that they scored 789 votes when the total number of voters in the Register of Voters for that unit. Exhibit 24G, is 537. That smacks of getting blood out of stone.

Evidently, the results, which the petitioners have placed high premium on, for units 2, 5, 9 and 10 of Evbuesi ward, are plagued by two terminal pitfalls. First, they are infested with non-accreditation. As already noted at the dawn of this judgment, accreditation is the heartbeat of valid votes. Non-accreditation of voters vitiates votes cast at any polling booth. See Terah v. Lawan; Nweke v. Ejims and Ajadi v. Ajibola (all supra) and Section 50 of the Electoral Act, 2007.

Those units are likely to suffer the same fate that befell units 18, 20 and 21 of Ukpato ward.

Another defect that bedevils those units is over-voting. The prescription of section 54 of the Electoral Act, 2006 prohibits over-voting then it says:

“54(1) No voter shall vote for more than one candidate or record more than one vote in favour of any candidate at anyone election.

(2) Where the votes cast at an election in any Constituency or polling station exceeds the number of registered voters in that Constituency or polling station, the election for that Constituency or polling station shall be declared null and void by the Commission and another election shall be conducted at a date to be fixed by the Commission.”

We must add pronto that the contention of the petitioners, in their written address, that over-voting was not pleaded by the Ist respondent does not cut in law and the law is in the breast of the Judge which he utilizes anytime the need arises. See Okochi v. animkwoi (2003) 18 NWLR (pt. 851) 1. These twin electoral defects cast a blight on the value of the votes scored by the petitioners.

However, that seeming victory scored by the 1st respondent, as a result of non-accreditation and over-voting in those units, is a pyrrhic – call it a flash in the pan. The reason is not far-fetched. The results for those units collated in exhibit S by R.W.7 are products of illegality, having not been initially recorded it Forms EC8A(i) but on pieces of paper. The stipulation in Section 64 of the Electoral Act, 2006 – us out in this view. That section (64) reads: –

“64(1) The Presiding Officer shall, after counting the votes at the polling station or unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.

(2) The form shall be signed and stamped by the Presiding officer and counter signed by the candidates or their polling agents where available at the polling station.

The prescribed Form is Form EC8A (i) for the purpose of the House of Assembly election conducted on 14th April, 2007. See pages 30 and 72 of Exhibit 31, Manual for election Officials 2007, the polling both or/unit is the substratum of the whole electoral process and only votes scored ad recorded by the Presiding Officer and subscribed to by the polling agents that constitute strong evidence establishing votes scored by a contestant. See Eruotor v. Ughimiakpor (2003) W.L.R.N. 41. What R.W. 7 did by collating the results in Exhibit 8 by dint of results on pieces of paper is an affront to the law and wanting in legality.

Going by the above analysis, the validity or otherwise or votes scored at units 2, 5 9 and 10 of Evbuesi Ward presents a good case of impair delicto to the parties. Both the petitioners and the 1st respondent loose out with respect to those votes while we hold that they come to naught in this petition.

This Tribunal is not oblivious of the cold fact that INEC admitted hook, line and sinker, in paragraphs 6 – 8 of its reply, the allegation or case of the petitioners as it affects units 18, 20 and 21 of Ukpato and 2, 5, 9 and 10 of Evbuesi Wards. It must be underscored that we do not see eye to eye with the 1st Respondent on his argument that the petitioners’ relief is declaratory thereby making admission surplus to requirements. We are rather at one with the petitioners that admission is the best evidence and that facts admitted need no further proof for that is the law. See section 75 of the Evidence Act, Cap. 112, Laws of the Federation, 1990. Raynolds v. Rockonoh (2005) 10 MJSC 159, Z.P. Industries Ltd v. Samotech Ltd (2007) 16 NWLR (pt. 1060) 315. However, it must be underlined that admission impliedly means that the allegation in unchallenged. The law given us the liberty to inquire into uncontroveted evidence or allegation to ensure its credibility before acting on it.

The Supreme Court gave its imprimatur to that position of the law in Gonzee (Nigeria) Limited v. NERDC (2005) 13 NWLR (part 943) 634 at 650 when Edozie, J.S.C. confirmed:

“the learned trial Judge had stated in the course of his judgment that Exhibits 3, 4, 5A – H are not challenged hence he placed reliance on them. But even where the evidence is unchallenged and uncontradicted, the trial court has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim.”

That is the rationale behind this Tribunal going into town regarding the allegation of the Petitioners in those units in Ukpato and Evbuesi Wards, despite the admission, as that is the only means to review the decision of the Returning Officer as enjoined by Section 69(c) of the electoral Act, 2006.

Everything considered on issue 1, our finding is that the votes scored by the Petitioners, as pleaded in paragraph 7 of their petition, that is, for units 18, 20 and 21 of Ukpato and 2, 5, 9 and 10 of Evbuesi Wards are not valid votes. Not being valid votes the question of whether they were correctly record is no longer a moot point. Invalid votes cannot be recorded for any candidates in an election in that something cannot come or radiate from nothing.”

It is settled law, as alluded to earlier in this judgment, that in an election petition the decision on who had majority of lawful votes is based largely on documentary evidence mainly election results Forms.This is because documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable and authentic than words as they bear an eloquent testimony of what really transpired. See NGIGE V. OBI (2006) 14 NWLR (PT. 999) 233 and AIKI V. IDOWU (2006) 9 NWLR (PT.984) 47.

I took great pains to quote extensively from the judgment of the lower Court on its findings with respect to the results of the election from Units 2, 5, 9 and 10 of Evbuesi Ward. There is no doubt that resorting to the documentary evidence adduced before the lower Court was the safest thing to do in the circumstance. The evaluation of the documentary evidence was very profound and logical. Respective learned Counsel have called on us to have another look at the evaluation of the evidence with respect to the elections at Evbuesi Ward. The guiding principle here is that once a trial Court or Tribunal properly evaluates evidence adduced and makes a finding which is reasonably supported by evidence, an appellate Court is precluded from interfering with such findings. In the instant case, in view of the finding that the results of the elections at Units 2, 5, 9 and 10 were recorded on pieces of paper, the election cannot be allowed to stand. This finding can only be interfered with or set aside on appeal if it was found to be unreasonable or perverse. A perverse or unreasonable finding is one which ignores the facts or evidence led before the Court and when considered as a whole amounts to a miscarriage of justice. Added to this, a finding is perverse if it is not borne out of the evidence before the Court. Also, a perverse finding is one which is not only against the weight of evidence but against the evidence itself:- it is a finding which no reasonable Tribunal should have arrived at in the light of the evidence before it. See ODIBA V. AZEGE (1998) 9 NWLR (PT.566) 370.

After going through the relevant documentary evidence adduced with respect to the elections held at Units 2, 5, 9 and 10 of Evbuesi Ward, I am fully satisfied that the above reproduced analysis and findings of the lower Court cannot be faulted. I do not see any good reason to interfere with same at all. I do not see any merit in the arguments of learned counsel to the Appellant that the pleadings on record were not sufficient to enable the Tribunal to consider the issue of recording election results on pieces of paper other than the prescribed INEC Forms (EC8A).

I have also not seen any justification to interfere with the findings of the lower Tribunal with respect to the elections at Unit S of Ukpato Ward and Units 20 to 2S of Ugboko Ward. I do not think or believe that the Appellant has made a strong and compelling case for this Court to set aside the findings of the lower Tribunal as argued by the Appellant in issue No.3. Also, all the submissions made in support of the Respondents’ notice appear to me to be very weak and feeble. I do not see any good reason to uphold any of them. I hereby discountenance them.

The next crucial issue to consider in this appeal is the very contentions issue of the elections at Urhonigbe South Ward. While the Appellant led evidence to show that elections were held and results declared in his favour the 1st and 2nd Respondents maintained that no elections were held at all at Urhonigbe South Ward on 14th April, 2007. The position of the 3rd – 8th Respondents appears to me to be neither here nor there. In resolving this issue the lower Court relied on the oral evidence adduced before it as well as paragraphs 9 – 11 of the reply of INEC to .the petition. The Tribunal found these paragraphs to amount to an admission of the averment in paragraph 10 of the petition where it was averred as follows: –

10 “Besides, the petitioner will also contend that no voting took place at Urhonigbe South Ward and that results emanating from the said Ward are invalid votes by reason of corrupt practices and noncompliance with the Electoral Act and Regulations. ”

On his own part, the Appellant, as 1st Respondent replied to the above averment in his paragraph 15 of his reply to the Petition. It goes thus: –

15 “With reference to paragraph 10 of the petition, the 1st Respondent vehemently denies that no voting took place at Urhonigbe South Ward. The 1st Respondent will rely on the Form EC8A(1) and EC8B (1) at the trial.”

Further to this, paragraph 16 averred as follows: –

16. Further to paragraph 15 above, the 1st Respondent avers that the said scores of the candidates in the election in that Ward were from lawful votes as there were no incidences of corrupt practices and noncompliance with the Electoral Act and Regulations.”

Against this background, the lower Court considered the oral evidence of PW1, Justus Russell, who said there was no election, against the averments in paragraphs 9 – 11 of INEC’s reply and held that in addition to the evidence of PW1 there was ample admission by INEC that elections did not hold at Urhonigbe South Ward. Upon this finding, the Tribunal set aside the purported result emanating from Urhonigbe South Ward. It was indeed the decision on the elections in this Ward that eventually determined the result of the election.

The 1st respondent/Appellant led oral evidence through RW14, RW15 and also testified as RW19. RW16 was one Etim Edet Umoh. He was sub-poened via Exh. 21. He is a staff of INEC. As an Assistant Director with INEC, he was also the Electoral Officer for Orhionmwon Local Government. Urhonigbe South Ward was part of Orhionmwon Local Government. After arguments by way objection from learned Counsel Mr. Edeki, for the petitioners, the lower Tribunal ruled and discountenanced the objection of the petitioners and proceeded to receive a total of 66 documents from INEC through RW 16. These documents include:-

35 CTCS of INEC result sheets;

2 CTCS of a list of Presiding Officers; and 29 copies of voters Register.

The result sheets were marked as Exhibit 22 while the list of Presiding Officers and voters Registers were respectively marked as Exhibits 23 and 24.

In its defence INEC relied on the oral evidence of RW20.

Coincidental1y, this RW20 is the same Mr. Umoh, who was earlier subpoenaed as witness for the 1st Respondent! Appellant. The oral evidence of RW20 tends to support that elections held at Urhonigbe South ward. Also Exhibits 25 – 30 were tendered through him as RW20. All the witnesses that gave oral evidence were cross-examined by respective learned Counsel. However, of them all, it was RW20 that faced the most vigorous and intense cross-examination.

After considering the entirety of the foregoing scenario, the Tribunal observed and held as fol1ows at page 736 – 737 of the record:

RW.19 was the 1st Respondent, Ogbeiwi (Etinosa) Ikponmwosa. He corrobated the evidence of R.W.14, RW.15 and R.W.20, that election was conducted in Urhonigbe South Ward.

Flowing from the above testimonies, it is clear that the evidence of R.W.14, R.W.5, R.W.19 and R.W.20 on the holding of election in Urhonigbe South Ward is diametrically opposed to that of P.W.1. For that conflict, the vexed question then is whether there was election in Urhonigbe South Ward?

To begin with, INEC had in paragraphs 9 – 11 of its reply admitted lock, stock and barrel that election did not hold in Urhonigbe South Ward. For the paundance of doubt of those paragraphs read:

“9. The 2nd, 3rd, 4th, 6th & 7th Respondents admit paragraph 10 of the petition and in further reply to the said paragraph the 2nd, 3rd, 4th, 6th & 7th respondents state that the voting materials including the ballot papers were hijacked by the 1st Respondent who led a detachment of armed thugs to perpetrate the act. This incident was reported by the Supervisory/Returning Officer in Urhonigbe South Ward in Orhionmwon Constituency II to the electoral officer in charge of Orhionmwon one Mr. Etim Umoh even while the 1st respondent and his thugs had surrounded the said Supervisory/Returning Officer for the ward. The said materials were driven away to an unknown destination but the Supervisory/Returning Officer retained the keys to the ballot boxes which were in his pocket at the time be was forcefully disposed (sic) of voting materials and ballot boxes.

10. The 2nd, 3rd, 4th, 6th & 7th respondents aver that the said Supervisory/Returning Officer for Urhonigbe South Ward one Justus Russell subsequently reported this incident at the 6th and 7th Respondents office Headquarters in Benin City.
11. The 2nd, 3rd, 4th, 6th & 7th respondents state that the 1st Respondent and his servants, agents and privies subsequently produced election result purportedly in respect of Urhonigbe South Ward at the Constituency collation Centre and caused the 3rd Respondent to erroneously accept same.”

Undoubtedly, the above averments show in clear terms that INEC admitted that the electoral materials for Urhonigbe South Ward were snatched and that there was no election in that ward. By law, admitted fact need no further proof and it is the best evidence. See Section 75 of the Evidence Act; Z.P. Industries Ltd v. Samotech Ltd (supra). The evidence of R.W.20 that election took place in that ward, given the reply admitting the non-holding of the election, is at variance with the pleadings and such evidence goes to no use and should be discountenanced. See Chinda v. Amadi (2002) 11 W.R.N. 72; Ajide v. Kelani (1995) 3 NWLR (part 12) 248.

For the INEC to admit that there was no election and later make a volte face to say there was election in that ward speaks volumes about what is left of the stunted integrity and reputation of INEC in that electoral process. That V-turn, as it were, smacks of double speak which does not find favour with the law.

Not only that, the evidence of the R.W 20 on the holding of the election is tainted with hearsay which is not in keeping with the mandatory provisions of Section 77 of the Evidence Act. See Ajibola vs. Ajadi (supra), Nweke v. Ejims (supra). We are of the thinking that, the INEC staff that conducted the election, Mrs. Margaret Famous, should have been called to give evidence so that the Tribunal would hear from the horse’s mouth. Not even a single Pressing Officer who partook in the conduct of that election was called to give evidence. It is not just enough to dump the deluge of unit results and Registers of voters with the Tribunal. The evidence of Presiding Officers are usually very strong evidence in deciding election petition. See Eruoto v. Ughumiakpor (supra). The evidence of R.W.14 and 15 without more. In our view, is flabbly and bereft of any potency to give any – of credibility to the holding of election in that ward.

To top it all, even the unreliable evidence of R.W.20, on the holding of election in that ward, is irreconcilable or conflict with that of R.W.14 and R.W.15 as to the time of holding the election. While the former persisted that he would be stupefied to hear that by 3p.m. election had been accomplished in that ward, the latter unanimously instated that election had been over by 3p.m. Time element is very germane here considered the two trips made to Abudu from the ward as show cased in the evidence. The time differential, in our humble view, makes the evidence of these witnesses on time half truth and not dependable. In the light of the foregoing reasons, our finding on this issue is that election did not hold in Urhonigbe South Ward. We, therefore, hold that the votes from that ward are invalid ones.” (Underlining mine for emphasis).

I now wish to observe that the 1st respondent very clearly joined issues with the petitioner on whether there were elections or not at Urhonigbe South Ward. As INEC seemingly appeared to have agreed with the petitioner that there were no elections at Urhonigbe South Ward, I think it is safe to say that INEC had decided to be part of the dispute and also the 1st Respondent to have fully joined issues with INEC on this fact. Indeed, that was why, I believe, that after the pre-hearing session, the issue whether elections were held at this ward or not was put on the cards as one of the issues settled to be determined in the trial of the petition before the lower Court. These 3 issues, as set out earlier in this judgment, were settled in full consultation with all the parties. It is on record that the petitioner relied on the written statement on oath and oral evidence of PW1 to apparently prove his averment that no elections took place at this Ward.

At that stage the Petitioner had done what was expected of him to prove one of the averments in his petition.

One of the objects of pleadings is to shorten proceedings by ascertaining what facts are agreed so that evidence need not be led to prove them. A court of law must accept any agreed fact by way of, for example, admission, as established without proof. Elder Aghimien SAN, of Counsel, is of the view that the admission by INEC, that there were no elections at Urhonigbe South Ward ought to have been accepted without any need for further proof because INEC was the person who should know better. The learned SAN referred to a number of decided cases. I have referred to these cases above. Suffice it to say here, that of all the cases cited and referred to by the learned SAN only the case of CHIEF OKPARAOKE V. OBIDIKE EGBUONU (1941) WACA 53 involved a case with a multiplicity of parties and also being a representative action. The remaining 3 cases cited in support were cases that involved only 2 parties. None of the 4 cases was an election matter. Election matters are sui generis and special in nature. Because cases must be decided on their peculiar facts and circumstances, all the cases, arguments and submissions made by the learned SAN on the issue of admission by INEC do not appeal or appear to me to be helpful in any way. This is a unique case and the averments in paragraphs 9 – 11 of INEC’s reply must be considered as an isolated event based on its peculiar circumstance.

It is settled that the standard of proof required of a petitioner who alleges that there was no election at a particular unit or Ward is on preponderance of credible and accepted evidence. For this purpose, an election matter is not any different from other civil cases where the standard of proof of any particular fact is on balance of probabilities. For the claim of a party to be upheld, it must be shown that such a party has adduced oral and/or documentary evidence to show that his story is more likely to be true then that of his opponent.

It is also accepted that the onus of proof in a civil trial shifts from one party to the other, depending on the nature of the case and evidence adduced by either party. It is well taken that where a party has offered enough evidence in proof or rebuttal, the onus of proof will shift to the other. In the circumstance of the instant appeal after the evidence of PW1 tending to lend credence to the averment of the Petitioner in paragraph 10 of the petition that no elections took place at Urhonigbe South Ward and that the result which emanated from any purported election was invalid by reason of corrupt practices and non-compliance with the Electoral Act, 2006, the burden of proof shifted to the 1st Respondent, on whether elections took place or not. At the appropriate stage in the trial of the matter the 1st respondent took up the challenge.

When it came to the turn of the 1st respondent/Appellant to open his defence to the petition, particularly on Urhonigbe South Ward, he called RW14 and RW15. He also testified as RW19. Because his defence pleaded documents to prove that there were elections at Urhonigbe South Ward, RW16 was subpoenaed to tender some of the election documents from INEC. The oral evidence adduced and some of the documents tend to seemingly show or prove that elections took place as specifically averred in paragraph 15 of the reply to the petition.

The next step was for INEC to open its defence. It called RW20, Mr. Etim Umoh a staff of INEC and the Electoral Officer for Orhionmwon Local Government. In the course of his testimony, Exhibits 25, 25A – 25E and 27 were tendered and admitted through him without any objection from learned Counsel to the 1st and 2nd Respondents. Before RW 20 went into his oral evidence, he adopted his deposition in which he admitted that elections were held at Urhonigbe South Ward.

While responding to cross-examination by learned Counsel to the 1st Respondent! Appellant, Mr. Osarenkhoe, RW20 said, at page 570 – 572 of the record of appeal, thus:-

“Election took place in Urhonigbe South on 14th April, 2007. INEC officials and adhoc staff conducted the election in Urhonigbe South. Returning were commenced for the 15 Units after the election. I can identify the results of the election from Urhonigbe South Ward is (sic). I were to see them. Exh. 26 identified. These are the results from all the 15 polling Units and they contain the names and signatures of the presiding officers who conducted the election.

I have seen Exhibit 23. It is the list of presiding officers who conducted the election in Urhonigbe South. The second page of Exhibit 23 is admitted iu evidence as Exhibit 23A. I agree that the election in all the 15 Units in Urhonigbe South was conducted with voters’ registers. I can identify the voters’ Registers used in conducting the election in Urhonigbe South on 14th April, 2007. Exhibit 24 identified.

Exhibit 24 was accredited by Presiding officers in comforting (sic) with INEC guidelines. It will be wrong to say that election did not hold in Urhonigbe South.”

Further to this at page 572, RW 20 responded to cross-examination thus:-

“When I dispatched election materials to Urhonigbe South on 14th April, 2007, I sent policeman and security agents along with the materials to protect the materials. Justus Russell had his own vehicle but I dismissed (sic) him from using his vehicle. I told him to go in the vehicle conveying election materials to Urhonigbe but he instilled (sic) he would use his own vehicle.

Mrs. Margaret Famous whom I sent to conduct the election in Urhonigbe later reported to me after she had conducted the election. She reported the conduct of the election and presented the result from the 15 Units to me. I accepted the result.”

It is a settled principle of law that where documentary evidence supports oral testimony, such oral evidence becomes more credible as documentary evidence serves as a hanger from which to assess oral testimony. See NDAYAKO V. MOHAMMED (2006) 17 NWLR (PT. 1009) 655 and IDOWU V. AIKI (supra).

RW20 was INEC’s witness. He gave evidence against the interest of the party that called him as a witness. He was not treated as a hostile witness. Whatever evidence he gave in support of the case of the case of the 1st Respondent is relevant for purposes of the defence of the 1st Respondent/Appellant. Where such evidence is found to be credible, it should be evaluated and weighed. In the circumstance of this case, the lower Court dismissed the evidence of RW20 either for being contrary to the pleadings or mere hearsay. Rather, the lower Court preferred to attach more weight to the evidence of PW1. I think this was a very wrong approach. The circumstance is ideal for a reevaluation of the evidence on record as prayed by learned Counsel to the Appellant and Chief Uzamere for the 3rd – 8th Respondents.

In the circumstance of this case, the evidence of RW20 is credible and must therefore be given due weight. The portion of his evidence, in response to cross-examination, and as reproduced above, is very revealing. It should not have been dismissed without much ado. RW20 sent INEC staff Mrs. Margaret Famous to conduct elections at Urhonigbe South Ward. She reported to him that the elections and were held and gave him the results of all the 15 polling Units. I do not see any hearsay fact throughout the reproduced portion of evidence. The assertion of RW20 that there was election at Urhonigbe South was positive and direct. With the greatest respect to learned Counsel Elder Aghimein SAN, his suggestion in paragraph 2.63 at page 31 of his brief that there was irresistible inference from the evidence of Justus Russell (PW1) Etim Umoh (RW20) and Mrs. Margaret famous that election did not take place at Urhonigbe South Ward is erroneous and grossly misleading. Peradventure, the deposition of Mrs. Margaret Famous, filed at the lower Court by INEC is at page 74 of the record of appeal. For whatever it is worth it averred in paragraphs 2, 3 and 4 as follows:-

2 “That results from the 15 polling units in Urhonigbe South Ward was submitted to me by the presiding officers.”

3. “That I collated the results that were submitted to me and I entered same in Form EC8B, (Ward collation result sheet).”
4. “That the Assistant Electoral Officer who acted as the supervisory presiding officer in the said ward told me and I verily believe her that she was forced into conducting the elections in the said ward.”

Learned Counsel Elder Aghirnien SAN had argued in paragraph 2.58 at page 30 of his brief that at the trial INEC failed or refused to call Margaret Famous (Mrs.) to give oral evidence in spite of the subpoena served on her at the instance of the Petitioner. He urged this Court to invoke S.149(d) of the Evidence Act against INEC for withholding her evidence. He urged further that the deposition of Mrs. Famous should be used as an admission against the interest of INEC. I wish to add that if it was possible to, in the circumstance of this case, use the depositions of Mrs. Famous in paragraphs 2, 3 and 4, it would not only be against the interest of INEC but also against the interest of the Petitioner/1st and 2nd respondents, more especially since INEC cannot rely on its own admission to prove a case against the 1st Respondent/Appellant. See AWUSE V. ODILI (2005) 16 NWLR (PT. 952) 416.

Recently, this court had the opportunity to hold that when the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent can take advantage of that evidence to strengthen his case if it is consistent with and corroborates his case. See INEC V. COMRADE ADAMS ALIYU ASHIOMOLE (Unreported) APPEALS NO. CA/B/EPT/91/08 et al Judgment of 11th November, 2008.

In his evidence before the Court PW1 told the Court that he did not go to Urhonigbe South on 14/4/07. He told the Court that election materials were hijacked from him in broad day light. RW20 and other witnesses confirm that election materials were distributed and dispatched to various centres from Abudu in the morning of 14/4/07 in the presence of policemen and other security agencies. How then PW1 could be dispossessed of election materials despite the heavy presence of security men. In its consideration of the evidence before it, the lower Court, in my view, discredited INEC and impeached it credibility as an institution. At page 737, the lower Court said of INEC thus:-

“For the (sic) INEC to admit that there was election and later make a volte face to say there was no election in that ward speaks volumes about what is left of the stunted integrity and reputation of INEC in that electoral process. That V-turn, as it were, smacks of double speak which does not find favour with the law.”

I have carefully considered Exh. 2SC. It is INEC Form EC8C

(i). – Summary of Results from registration Areas in respect of election to State House of Assembly. It was signed by Mrs. M.O. Ediae, as INEC collation officer. On this Exh. 2SC Action Congress (AC) was shown to have scored 13,987 votes while the PDP was shown to have scored 13,302 votes. I have also seen Exh. 2SE. It is the result sheet for Urhonigbe South Ward consisting of 15 polling Units. On it, AC scored 3762 votes while PDP scored 130 votes. All these documents were produced in court by INEC. They were duly admitted in evidence. They are credible evidential materials which a court of law must consider and evaluate. If found to be sound due weight must be attached to them. For example, there is a rebuttable presumption of regularity that the votes entered on those documents were valid votes. It is a golden rule in adjudication that once admitted in evidence documents ought to be allowed to speak for themselves.

Based on the foregoing, I am of the view that the finding of the lower Tribunal that elections did not take place at Urhonigbe South Ward was erroneous, having regards to the evidence on record. That finding is perverse and unreasonable as such it ought to be interfered with to avoid any miscarriage of justice.

In the exercise of its power and duty, the lower Tribunal refused to attach any weight to the oral evidence adduced by the parties with respect to the elections at Units 18, 20 and 21 of Ukpato Ward, Units 20 – 28 of Ugboko Ward and Units 2, 5, 9 and 10 of Evbuesi Ward not only because they were contradictory of one another but because there was enough credible documentary evidence on record to settle the questions in dispute. While I entirely agree and accept this approach as sound and impeccable, I am unable to accept the approach adopted by the lower Court in determining whether elections were held at Urhonigbe South Ward on 14/4/07 or not. With respect to the determination of this latter issue, the lower court did not properly assess and evaluate all the relevant and credible evidence before it.

While I fully accept the findings of the lower Court with respect to the elections at Units 18, 20 and 21 of Ukpato Ward, Units 20 – 28 of Ugboko Ward and Units 2, 5, 9 and 10 of Evbuesi Ward, I do not accept the finding that elections did not hold at Urhonigbe South Ward on 14th April, 2007. That finding is unreasonable and perverse and it is accordingly hereby set aside. I hold and find that all available evidence on record shows that elections were held at Urhonigbe South Ward for the House of Assembly elections for Edo State on 14th April, 2007 and the said elections were held in substantial compliance with the provisions of the Electoral Act, 2006 and all other guidelines made pursuant thereto.

In consequence of the foregoing this appeal is hereby allowed in part it is now ordered as follows:-

1) That the votes emanating from Units 18, 20 and 21 of Ukpato Ward are invalid votes;

2) That the votes emanating from Units 2, 5, 9 and 10 of Evbuesi Ward are invalid votes;

3) That elections were held at Urhonigbe South Ward on 14th April, 2007 for Orhionmwon II Constituency of Edo State House of Assembly and the election was held and conducted in substantial compliance with the Electoral Act, 2006 and other guidelines made pursuant thereto;

4) The order of the lower Tribunal canceling the votes returned for the candidates in respect of Urhonigbe South Ward is hereby set aside;

5) The votes returned for the candidates at the election for Orhionmwon II Constituency is set out in Exhibit 25B i.e: – AC 13,987, ANPP 579, PDP 13,302, PPP 28, AD 3 etc.

6) The order of the lower Tribunal of 22/01/08 declaring the 1st Respondent as the winner of the election for Orhionmwon II Constituency of the Edo State House of Assembly as well as the declaration that Moses Omo Egharevba was the duly elected representative for Orhionmwon II Constituency is hereby set aside.

7) That the Appellant Mr. Ogbeiwi (Etinosa) Ikponmwosa of the Action Congress is hereby declared the validly elected candidate for Orhionmwon II Constituency of the Edo State House of Assembly, being the candidate who scored the highest number of valid and lawful votes in the election. Appeal is allowed based on the order setting aside the nullification and cancellation of the election and results for Urhonigbe South Ward.

No order for costs.

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Other Citations: (2009)LCN/3108(CA)