Mr. Sullivan I. Chime V. Rev. Dr. Oscar Egwuonwu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal against the judgment of the Governorship/Legislative Houses Election Petition Tribunal sitting at Enugu in the Enugu State of Nigeria.

The appellant Barr. Sullivan I. Chime was the 1st Respondent in Petitions No. NAGLIEPT/EN/GOV/35/2007 and NAGL/EPT/EN/GOV/36/2007 and filed by Oscar Egwuonwu the Governorship candidate of Democratic Peoples Party and Peoples Democratic Party respectively. At the trial, the two petitions were consolidated and heard as one.

The facts of this appeal as can be gathered from the totality of the record before the court are that the Petitioner in Petition No.NAGL/EPT/EN/GOV/35/2007 is Rev. Dr. Oscar Egwuonwu while the Petitioner in NAGL/EPT/EN/GOV/36/2007 is the Democratic Peoples Party (DPP). At the close of the gubernatorial elections in Enugu State, the appellant who scored 811,798 votes as against the 1st Respondent’s 5,814 votes was declared the winner of the election while the appellant contested the election under the platform of the Peoples Democratic Party (PDP). The 1st Respondent contested under the platform of Democratic Peoples Party (DPP).

Being dissatisfied with the return of the appellant by the Independent National Electoral Commission, both Rev. Dr. Oscar Egwuonwu and his party filed two separate petitions claiming the following reliefs –

(i) “That it may be determined that the 1st respondent was not duly elected or returned and the election be declared a nullity.

(ii) That a fresh Governorship election be conducted in Enugu State”.

The grounds for the petition are that:-

(a) “The election did not hold within the prescribed period of 8am to 3pm.

(b) The 1st respondent was not elected by a majority of lawful votes cast at the elections.

(c) The elections were invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act 2006.

(d) Falsification and inflation of figures allegedly scored by the 1st respondent.

(e) Gross irregularities in the polling booths and that the results were not announced thereat. There was no collation of the result in the Wards as materials including the result sheets were not delivered to the polling centres by the 2nd and 3rd respondents.

(f) There was no voting at all in-most of the polling booths.”

The appellant and the 2nd to 3180th Respondents filed separate replies and denied all the allegations contained in the petition. According to them, the appellant polled 811,798 and not 811,756 votes as claimed by the petitioners. The respondents to the petition also averred in their replies that the gubernatorial elections in Enugu State were free and fair and conducted in substantial compliance with the provisions of the Electoral Act 2006. Both petitions are similar in all respects consequently the two petitions were consolidated.

The petitioners in the consolidated petitions called 17 witnesses, the appellant called 13 witnesses RW1 – RW13 while the INEC respondents called the 17 electoral officers for the 17 Local Governments in Enugu State as witnesses.

It is agreed between the parties that elections were conducted in 13 of the 17 Local Governments on 14/4/07 while elections were conducted in Enugu South, Udi, Nsukka and Isi-Uzo Local Governments on 28th of April 2007.

After the adoption of written addresses by counsel on all sides the trial Tribunal in its judgment on the 18th day of January 2008 declared the return of the appellant as the Governor of Enugu State a nullity and ordered for fresh elections.

Dissatisfied with the judgment the appellant appealed against the judgment and filed 13 grounds of appeal on the 4th day of February 2008. In accordance with the Practice of this Court, briefs-of arguments were filed and exchanged. At the hearing of the appeal on 2nd day of June 2008, learned counsel for the appellant adopted his brief of argument dated and filed on 25/3/08 he also adopted his reply brief dated and filed on 27/5/08 learned senior counsel for the appellant relied on the two briefs and urged the court to allow the appeal.

Learned counsel for the 1st respondent adopted his brief of argument dated the 28/4/08 and deemed filed on 22/5/08 and urged the court to dismiss the appeal and confirm the decision of the Tribunal and order another election.

In the appellant’s brief of argument, the following issues were identified as calling for determination.

“1. Were the learned trial Judges right in placing the primary onus on the appellant to prove that he was duly elected in accordance with Section 179(2) of the 1999 Constitution of the Federal Republic of Nigeria?

2. Were the learned trial Judges right when relying on the Practice Direction 2007 they held that this case is exempt from the requirements of proof as established in the cases of Ayogu V. Nnamani (2006) 6 NWLR (Pt.981) at 160 and Nnaji V. Agbo (2006) EPR 67?
3. Were the learned trial Judges right in holding that this Case does not fall within the test of substantial compliance as set down in the case of Buhari V. Obasanjo (2005) All FWLR p.1.
4. Were the learned trial Judges right in their application of the Practice Direction 2007 to reject the documents tendered by the appellant in support of his case?
5. Were the learned trial Judges right when they held that the evidence of RW13 contradicted the evidence of the appellant’s witnesses?
6. Did the learned trial Judges properly evaluated the Evidence of the appellant’s witnesses in their judgment?
7. Were the learned trial Judges right in their reliance on Exhibit P2 to find that a majority of voters in the State did not vote?
8. Were the learned trial Judges right in taking judicial notice of the provisions of INEC Guidelines and regulations which were not tendered before the Tribunal?
9. From the pleading and evidence before the Tribunal, were the learned trial Judges right in holding that the Petitioners have proved non-compliance with the provisions of the Electoral Act.
10. Were the learned trial Judges right when they held that the petitioners’ allegations were not criminal in nature and thereby applied the lower standard of proof required in civil cases.
11. Were the learned trial Judges right extending time for the Petitioners to file their written address and admitted same for use without affording the appellant the opportunity to reacting to the address by way of a reply on points of law.
12. Did the petitioners/respondents adduce sufficient evidence in proof of their case in order to entitle them to judgment?
13. Did the Petitioners/Respondents adduce sufficient evidence in proof of their case in order to entitle them to judgment?”

On his part learned counsel for the respondent formulated the following issues for determination which read thus:-

“1. Whether Section 179(2) of the Constitution of Nigeria 1999 which provides “a candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where there being two or more candidates (a) he has the highest number of votes cast at the election and (b) he has not less than one quarter of all the votes cast in each of at least two thirds of all the Local Governments in the State” is mandatory or permissive.

2. Whether the 2nd and 3rd respondents carried out their duties in substantial compliance with the Constitution of the Federal Republic of Nigeria 1999 and or Electoral Act 2006.
3. Whether the pleadings of the parties and evidence adduced before the Election Tribunal are in support of the judgment.
4. Whether there was denial of fair hearing against the Appellants.

I have considered the issues as formulated by the appellant and I am of the view the issues would adequately dispose of the appeal. I however noticed that some of the issues as formulated overlaps or are interrelated accordingly some of the issues would be treated jointly in the consideration of the appeal.

ISSUE NO.1

Were the learned trial Judges rights in placing the primary onus of proof on the appellant to prove that he was duly elected in accordance with Section 179(2) of the 1999 Constitution of the Federal Republic of Nigeria?

Learned senior counsel for the appellant submits that this issue complains essentially of the trial Tribunal’s error in placing the onus of proving the fundamental question in the petition on the appellant who was a respondent in the case. Learned counsel referred to the Tribunal’s judgment at page 437 vol. 3 of the record, the learned trial Judges of the Tribunal held as follows:-

“The learned counsel for the petitioners referred to the provision of Section 179(2) of the Constitution of the Federal Republic of Nigeria, 1999. It provides thus:

‘179(2) – A candidate for an election to the office of a Governor of a State shall be deemed to have been elected where there being two or more candidates –

(a) he has the highest number of votes cast at the election and

(b) he has not less than one quarter of all the votes cast in each of at least two-thirds of all the Local Governments in the State.’

By this provision, a respondent defending an election petition as Governor (elected) must be ready to demonstrate by his pleadings and evidence that he has fulfilled the constitutional requirements where it is made an issue. Such cannot be left to presumption”.

Learned senior counsel for the appellant argues that by the foregoing statement, the trial Tribunal clearly holds the position that (i) Section 179(2) of the Constitution place the primary onus on any person elected as a governor to prove that he was duly elected in accordance with that Section once his due election is questioned in an election petition; (ii) Section 179(2) of the Constitution removes any presumption of regularity/correctness of a result by which a candidate is elected/returned as a governor.

It is submitted that this does not represent the position of the law with regard to the person on whom the burden of proof lies in circumstances as in this case. That in the normal legal context, the burden of proof or onus of proof is said to lie on a person who, in the circumstances of the pleadings, has the responsibility to advance evidence in order to prove facts of the case to the satisfaction of the court as contained in his pleadings. The ultimate decision of a court in every trial depends on whether or not the party on whom this responsibility lies has discharged that responsibility to the satisfaction of the trial court. His entitlement to judgment in the case depends to a large degree, on his ability to discharge this onus of proof laid on him by law. That by a combined reading of Sections 135, 136 and 137 of the Evidence Act, the primary and general burden of proof i.e. ultimate responsibility to adduce evidence to establish the case as disclosed from the pleadings lies on the person who would loss if no evidence is led at all in the trial. Learned senior counsel contends that this principle applies evenly to all cases including election petitions except where the burden of establishing or proving certain specific facts has been placed on any particular party by law – reference made to Awuse V. Odili (2005) All FWLR (Pt.261)248.

Learned senior counsel for the appellant referred to the consolidated petitions and the pleadings contained therein which are identical and contained the same reliefs. He also referred to the 1st respondent’s Reply to the petitions which contained his pleadings and contends that it is on the state of pleadings as between the petitioners and the 1st(now appellant) in the consolidated petitions that the case proceeded to trial. It is the submission of the appellant that as the pleadings stood the petitioners (now respondents) had the primary onus of producing evidence as to the satisfaction of the tribunal to prove their alleged corrupt practices, non-compliance with the provisions of the Electoral Act 2006, falsification and inflation of figures.

Irregularities and other malpractice which they assert had undermined the election to the greatest disadvantage of the petitioners. Reference made to Awuse V. Odili (supra) at page 313.

It is further submitted that under Section 150(1) of the Evidence Act there is the presumption of regularity or correctness which stands in favour of official acts. That the Independent National Electoral Commission (INEC) is a statutory body charged by law with the responsibility of conducting election in the entire country. All the parties to this petition agree that the governorship election of 14th & 28th April 2007 were conducted by INEC in pursuance of its official duty under the Constitution and the Electoral Act. The parties also agree that pursuant to the said elections INEC declared results by which the appellant herein was returned as the Governor of Enugu State. That on the authority of the Evidence Act and a long line of decided cases, all which the learned trial Judges were bound to follow, when INEC declares a result, there is a presumption that the said result is correct. The -burden is therefore on the petitioner who denies the correctness, authenticity or validity of the return of the appellant to produce evidence in rebuttal of the correctness in favour of the return – reference made to Buhari & Anor V. Chief Olusegun A. Obasanjo & 264 Ors (2005) All FWLR (Pt.273)1 at 124; Omoboriowo V. Ajasin (1984)1 SCNLR 108; Nwobodo V. Onoh (1984)1 SCNLR 1. Learned senior counsel for the appellant submits that since the trial Tribunal has fundamentally erred in determining who had the primary or general onus of proof in the case clearly affected the final decision of the trial Tribunal and this Court is respectfully urged to set the same aside as being perverse.

In response to the submissions of the appellant in Issue No.1 for determination learned counsel for the respondent submitted that the petitioner gave evidence and pleaded that the constitution of Federal Republic of Nigeria was breached. That the respondent/appellant did not give any credible and admissible evidence to show that they satisfied the provisions of Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999. That in Buhari & Anor V. Chief Olusegun A. Obasanjo & 264 Ors (2005)124, the Supreme Court stated that when the Electoral Commission declares a result, there is a presumption that the result is correct. But the presumption is not watertight. It is rebutable and the onus is on the petitioner to rebut the presumption. That the petitioner offered clear and active proof that the result is incorrect and not authentic and that all the witnesses to the appellant did not rebut the evidence that there was no polling booth results shown by the appellant; that there was no number of votes collated in any collation centre and the result announced did not show how the 1st appellant scored the highest number of votes and/or that the 1st appellant scored any number of votes not less than once quarter of all the votes cast in each of at least two thirds of all the Local Governments in the State.

Learned counsel for the respondent submitted that there are 17 Local Governments in Enugu State, that there is no evidence of votes -scored in any of the 17 Local Governments Areas or at all, that the Tribunal cannot presume regularity in the air. Learned counsel for the appellant argues that the Tribunal saw that the witnesses for the appellant were not reliable and were not to be believed. The Judges made the findings. They saw the witnesses, assessed them and came to the findings. Counsel contends that the court of Appeal is being asked to perform a task outside its jurisdiction.

It is submitted for the respondent that the consideration of the appellant then respondent case of holding or not holding an election arose immediately the petitioner (now respondent) made out a case that there was no election in accordance with the Constitution of the Federal Republic of Nigeria 1999 and/or the Electoral Act 2006. That the petitioner has made out a case in the petition and the appellant admitted in their Replies that there were no scores shown in the booths and collation centres. That the Tribunal could not find facts on which the presumption could be supported.

Learned counsel for the Respondent referred to the judgment of the Tribunal at page 437 of the printed record and contends that it is false for the appellant to say that the Constitution was not made – an issue. He submitted that issues were joined on the fundamental provisions of the Constitution of the Federal Republic of Nigeria 1999 i.e. Section 179(2). It is the contention of the learned counsel to the respondent once issues are joined on the provision of the Constitution it is the duty of the 2nd & 3rd appellants to show that they acted within the provision of the Constitution, that the appellant has a duty to show to the court that the provisions of the Constitution were not breached – reference made to A.G Ondo State V. A.G. Federation & Ors (2002) 9 NWLR (Pt.772) 222; Rabiu V. The State (1982)2 NCLR 293; Aque Ltd V. Ondo State Sports Council (1980)4 NWLR (Pt.117)517; Ishola V. Ajiboye (1994)6 NWLR (Pt.352)5-6; Director SSS V. Agbakoba (1999) 3 NWLR (Pt.595) 314; Ekeochu V. Civil Service Commission Imo State (1981)1 NCLR 14; Kalu V. Odili (1992) 5 NWLR (Pt.240)130. That the Tribunal regretted that the appellant denied it of all documentary evidence relating to his election even the certificate of return issued to him under Section 76(1) of the Electoral Act 2006.

Learned counsel for the respondent argues that the petitioner/respondent asserted that there was no election for the Governorship post in Enugu State and by evidence proved that the 2nd and 3rd respondents/appellants failed to act within the provisions of the Constitution. That the 1st, 2nd and 3rd appellants failed to show the scores of any candidate in the booths, Wards, Local Government Areas of the State to entitle the appellant to be declared winner.

That the Tribunal cannot presume after the pleadings and evidence of the respondent and his witnesses that the Constitutional provision were complied with. It must be proved that the election was not in breach of the provisions of the Constitution of the Federal Republic of Nigeria, 1999. Learned counsel for the respondent submits that the appeal fails in this issue and should be dismissed.

Issue No.1 is basically on whether by the judgment of the Tribunal as contained on page 437 of the printed record, the Tribunal was right in placing the primary onus of proof on the appellant to prove that he was duly elected in accordance with Section 179(2) of the 1999 Constitution of the Federal Republic of Nigeria.

The relevant portion of the judgment at page 437 of the printed record read thus:-

“The learned counsel for the petitioner referred to the provision of Section 179(2) of the Constitution of the Federal Republic of Nigeria, 1999. It provides thus:-

‘179(2) – A candidate for an election to the office of the Governor of a State shall be deemed to have been duly elected where there being two or more candidates –

(a) he has the highest number of votes cast at the election, and

(b) he has not less than one quarter of all the votes cast in each of at least two thirds of all the Local Governments in the State. ‘

By this provision, a respondent defending an election petition as Governor (elected) must be ready to demonstrate by his pleadings and evidence that he has fulfilled the Constitutional requirements, where it is made an issue. Such cannot be left to presumption”.

A careful study of this portion of the judgment will reveal clearly that the learned Judges of the trial Tribunal are of the view that –

(a) Section 179(2) of the Constitution places the primary onus on any person elected as a Governor to prove that he was duly elected in accordance with that section once his due election is questioned in an election petition.

(b) Section 179(2) of the Constitution removes any Presumption of regularity/correctness of a result by which a candidate is elected/returned as a governor.

The above views as held by the learned Tribunal do not represent the position of the law with regard to the person on whom the burden of proof lies in circumstances as in this case.

Generally in law, the burden of proof or onus of proof is said to lie on a person who in the circumstances of the pleadings has the responsibility to advance evidence in order top rove facts of the case to the satisfaction of the court as contained in his pleadings.

The ultimate decision of a court in every trial depends on whether or not the party on whom this responsibility lies has discharged that responsibility to the satisfaction of the trial court. His entitlement to judgment in the case depends, to a large degree on his ability to discharge this onus of proof laid on him by law. The law that regulates trials in our adversarial system of adjudication is the Evidence Act. Sections 135 to 137 of the Evidence Act provide as follows:-

S.135 (1) – Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that these facts exist?

(2) When a person is bound to prove the existence of facts it is said that the burden of proof lies on that person.

S.136 – The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

S.137(1) – In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produce on either side, regard being had to any presumption that may arise on the pleadings.”

By a combine reading of the above provisions, the primary and general burden of proof, i.e. the ultimate responsibility to adduce evidence to establish the case as disclosed from the pleadings, lies on that person who will lose if no evidence is led at all in the trial.

This principle applies evenly to all cases including election petitions except where the burden of establishing or proving certain specific facts has been placed on any particular party by law. The application of this principle of law to election petitions has been re-confirmed by this Court in the case of Awuse V. Odili (2005) All FWLR (Pt.261) 248 at 316 when it stated-

“It is an elementary principle of law that the burden is on him who asserts to adduce evidence in proof of that assertion. In the instant case, the appellant as the petitioner at the Tribunal had the onerous duty of proving his petition and such reliance could not be made on the weakness of the case of the defence xxx in other words, the petitioner was duly bound to succeed on the strength of his own case and not on the weakness of the defence.”

In the instant appeal the 1st respondent presented a petition of eleven paragraphs before the trial Tribunal in which he alleged that among others that there was no voting at all in most of the polling booths, the election did not hold within the prescribed period of 8am to 3pm or 10am to 5pm, corrupt practices, non-compliance with the provisions of the Electoral Act, 20076, falsification and inflation of figures, irregularities and other malpractice which he assert-had undermine the election to the greatest disadvantage of the petitioner.

The appellant filed thirteen paragraphs Reply to the Respondent’s petition in which he denied all the allegations contained in the petition.

On the state of the pleadings as contained in the petition and the appellant’s Reply thereto the case proceeded to trial. As the pleadings stood, the petitioner has the primary onus of producing evidence to the satisfaction of the Tribunal to prove the allegations contained in the petition. The law as it stands today is that onus of proof is on he who asserts and Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999 does not shift this burden from/the petitioner to the respondent in election matters.

Furthermore there are no statutory provisions or judicial authorities that shift the onus of proof in Election Petition cases from the petitioner to the respondent.

Beside, in election there is presumption of regularity or correctness which stands in favour of official acts under Section 150(1) of the Evidence Act. The Independent National Electoral Commission (INEC) is a statutory body charged by law with the responsibility of conducting elections in the entire country. All the parties to this petition agree that the Governorship election of 14th and 28th April 2007 were conducted by INEC in pursuance of its official duty under the Constitution and the Electoral Act. The parties also agree that pursuant to the said elections INEC declared the results by which the appellant herein was returned as the Governor elect of Enugu State.

On the authority of the Evidence Act and a long line of decided cases, when INEC declares a result, there is a presumption that the said result is correct. The burden is therefore on the petitioner who denies the correctness, authenticity or validity of the return of the appellant to produce evidence in rebuttal of this presumption of correctness in favour of the return.

The Supreme Court in Buhari & Anor. V. Chief Olusegun A. Obasanjo & 264 Ors (2005) All FWLR (Pt.273)1 at 124 stated thus:-

“When the Electoral Commission declares a result, there is a presumption that the result is correct. But this presumption is not water tight, it is rebuttable and the onus is one the petitioner to prove and rebut the presumption. xxx Once the Electoral Commission announces the result of an election it is presumed correct and authentic and the petitioner who alleges the opposite must offer clear and positive proof that the result is incorrect and not authentic. If the allegation is fraud it must be proved beyond reasonable doubt because fraud is a crime. If it is violence, the violence, its location, the effect on the election, its spread whereby it substantially affects the result must clearly be pleaded and given in evidence.”

See also the cases of Omoboriowo V. Ajasin (1984)1 SCNLR 108; Nwobodo V. Onoh (1984)1 SCNLR 1.

In its judgment the trial Tribunal after quoting the provisions of Section 179(2) of the Constitution of the Federal Republic of Nigeria 1999 states thus:-

“By this provision, a respondent defending an election petition as Governor (elected) must be ready to demonstrate by his pleadings and evidence that he has fulfilled the Constitutional requirements where it is made an issue. Such cannot be left to presumption.”

Further placing the burden of proof on the petitioner now appellant the learned Judges of the trial Tribunal at page 437 of the printed record states thus:-

“Furthermore, the provision makes it obligatory that the votes of all the candidates at the election must be stated to know all the votes cast at the election. So also the vote scored in the Local Government Areas of the State. It is pertinent to State that the 1st respondent has denied the Tribunal of all documentary evidence relating to his election even the Certificate of Return issued to him under S.76 (1) of the Electoral Act.”

It is crystal clear that the provisions of Section 179(2) of the Constitution which the learned trial Judges were considering at that point in their judgment does not either directly or by any visible or reasonable implication, obviate the existing presumptions of regularity and correctness of a result declared by INEC nor does it place any onus on the respondent/appellant whose election and return is being challenged.

Having thus wrongly placed the onus of proof on the 1st respondent now appellant, the learned trial Judges wrongly demanded production of evidence which production they again wrongly held that the respondents have failed to do.’

This fundamental error of the trial Tribunal in determining who had the primary or general onus of proof in an election petition and this appeal placing it on the petitioner now appellant has clearly affected the final decision of the trial Tribunal and same is perverse. Accordingly Issue NO.1 is determined in favour of the appellant and against the respondent.

Learned senior counsel for the appellant argued Issue NO.2 and 3 together. The Issues are –

ISSUE NO.2

Were the learned trial Judges right when relying on the Practice Directions 2007, they held that  this case is exempt from the requirements of proof as established in the cases of Ayogu V. Nnamani (2006)6 NWLR (Pt.981)160 and Nnaji V. Agbo (2006)2 EPR 67?

ISSUE NO.3

Were the learned trial Judges rights in holding that this case does not fall within the test of substantial compliance as set down in the case of Buhari V. Obasanjo (2005) All FWLR?

In arguing Issues 2 and 3 learned counsel for appellant  referred to paragraph 13 of the petition and paragraph 10 which contained the grounds relied upon by the petition. The petitioner in paragraph 13 of the petition prayed as follows:-

“1. That it may be determined that the 1st respondent was not duly elected or returned and the election be declared a nullity.

2. That a fresh Governorship election be conducted in Enugu State.”

The grounds relied upon for the petitions are contained 10 paragraph 10 of the petition as follows:-

“1. The election did not hold within the prescribed period of 8.00am to 3.00pm or 10.00am to 5.00pm.

2. The 1st respondent was not elected by a majority of lawful votes cast at the elections.
3. The elections were invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act 2006.
4. Falsification and inflation of figures allegedly scored by the 1st respondent.
5. Gross irregularity in the polling booths and the results were not announced thereat. There was no collation of results in the ward as the materials including result sheets were not delivered to the polling centres by the 2nd and 3rd respondents.”

The respondent in vehement opposition to the above averments stated thus in paragraph 3 of his Reply.

“3. The respondent states that his return as the Governor elect of Enugu State was not based on a purported election as alleged by the petitioner, rather same was the bona fide outcome of a valid election conducted substantially in accordance with the provisions of the electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999. The respondent pleads and shall at trial of the petition rely on all electoral result Forms (EC 8A, EC 8B, EC 88C and EC 8D) and other relevant INEC documents that were used for the conduct and for the purposes of the election as well as for the collation and declaration of the result of the election”

Furthermore paragraph 9 of the 1st respondent’s reply runs thus:-

” the respondent states that the materials for the elections were delivered in good time for the gubernatorial elections of the 14th and 28th April 2007 and the elections duly held and all the voters who turned out to vote voted, within and or up till the time allowed and or extended therefore by the 2nd respondent…”

The Tribunal in its judgment at pages 437, vol.3 of the record stated thus:-

“By this provision, a respondent defending an election as Governor elect must be ready to demonstrate by his pleadings and evidence that he has fulfilled the constitutional requirement where it is made an issue such cannot be left to presumption”

The Tribunal continued in their judgment –

“Considering the above provisions and the authorities, it is our humble view that the Petitioners have adduced the initial evidential burden on them. And having had regard to presumption above, the burden is on the Respondents to rebut the petitioner’s evidence.”

Learned counsel for the appellant submits that the Tribunal adopted the above position even though the general principle of law is that a petitioner who alleges that the appellant was not elected by majority of lawful votes has the onus to prove his case by producing evidence in rebuttal of the presumption. That the Tribunal discarded this hallowed principle and created a new order/principle in these words “To our mind the old order has given way to the new one ” Learned counsel for the appellant contends that with the above position taken by the Tribunal in respect of the petitioner’s allegation that voting did not take place in all or most part of the polling booths, the burden of proving that the election i.e. voting took place was in effect placed on the respondents to the petition. The Tribunal’s aforesaid inclination was informed by what they called “… The new order …” which they felt was introduced by the Practice Directions. This new order was then applied by the Tribunal in determining where the onus of proof lay in respect of the various issues arising therein. Learned counsel to the appellant referred to  the case of Ayogu V. Nnamani (2006) 6 NWLR (Pt.981) 160 wherein this Court stated as a matter of mandatoriness that a witness must be called from each polling booth in order to show that he could not vote and/or tender voters’ register was not applied. Rather the Tribunal held that as a matter of novelty and in frontal conflict with the decisions of this Court, the Supreme Court and substantive Acts, that the principles of law as enunciated by this Court in Ayogu V. Nnamani and Nnaji V. Agbo (supra).

“In the face of the Practice Direction …. No longer holds sway. To our mind the old order has given way to the new one.”

It is submitted for the appellant that our adjectival law of evidence governs the burden of proof in all cases. That there is nothing in the said Practice Directions that has automatically changed the position of the law as enshrined in the Evidence Act and espoused in a long litany of cases. That this is so because the provisions of Sections 135 to 136 of the Evidence Act are to the effect that he who asserts must proof. Learned senior counsel for the appellant contends that there is nothing in the Practice Direction displacing the principle of law that he who asserts must proof and the proposition of the law on whom the burden of proving that voting did not take place and how such burden can be discharge has been stated and repeatedly restated in the cases of Ayaogu V. Nnamani (2006)8 NWLR (Pt.981)160 at 187; Awuse V. Odili (2005) 16 NWLR (Pt.952) 416; Nnaji V. Agbo (2006) 2 EPR 867; Remi V. Sunday (1999) 8 NWLR (Pt.613)105; Onoyon V. Egari (1999) 5 NWLR (Pt.603) 416 at p.425.

Further learned senior counsel for the appellant argues that the legal burden of proving that elections were not conducted which itself is a form of malpractice rest on the petitioner. It is submitted that the learned trial Judges of the trial Tribunal relied on the provisions of the Practice Directions to dispense with the need for enquire the petitioners to prove their case in the manner laid down in Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra); Onoyon V. Egari (supra). Learned senior counsel submits that the Practice Directions cannot displace the provisions of a statute and decisions – reference made to University of Lagos & Anor V. M.I. Aigono (1984) 11 SC 152 at 191.

On Issue 3 that is was the learned trial Judges right in holding that this case does not fall within the test of substantial compliance as set down in the case of Buhari V. Obasanjo (2005) All FWLR at 91. Learned senior counsel for the appellant submits that the learned trial Judges have also for reasons stated in their judgment held that the principle as enunciated in Buhari V. Obasanjo (supra) as regards proof of the substantial effect of alleged irregularities or non-compliance with Electoral Act on the final result of an election was not applicable to this case they therefore declined to be guided by the said case and the principles stated therein. Learned senior counsel contends that the substantiality principle had always had a secured place in all our post independence Electoral Laws because there is no perfect or impeccable election. This principle is contained in Section 146 of the Electoral Act 2006.

Further, learned senior counsel for the appellant submits that by the petitioners own showing as per paragraphs 8 and 9 of this petition, INEC announced the votes polled and declared the appellant duly elected. There is a presumption of correctness of the result of an election as declared by the electoral commission.

That as a matter of fact, the Tribunal’s conclusion at pages 438 of the record confirmed that the election took place when it states thus:-

“…. we have no doubts in our minds that majority of the electorates in Enugu State were denied the right to choose who their Governor should he”

Learned senior counsel argues that from the above pronouncement by the Tribunal establish that there was an election albeit with some imperfections which determination ought to have activated the proper application of the substantiality test as in Buhari V. Obasanjo (supra) in the determination of the petition by the Tribunal – reference made to Biyu V. Ibrahim (2006) 8 NWLR (Pt.981)1; Buhari V. INEC & Ors (unreported) Suit No. CA/A/EP/1/07 delivered on 26th February 2008 and Atiku V. Yar’adua (unreported) Suit No. CA/A/EP/3/07 delivered on 26th February 2008. Learned counsel urged us to resolve Issues 2 & 3 in favour of the appellant and set a side the final decision of the court below.

In their response to the submission of the appellant in Issues 2 & 3 the learned counsel to the respondents submits issues 2 & 3 relate to Practice Directions, both the appellant and respondents are bound by Practice Directions 2007 made by the President of Court of Appeal who has the statutory authority. Those by the Practice Direction 2007 paragraph 2 the respondent’s Reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath. That the appellants in their reply failed or refuse to file copies of documentary evidence they would rely on at the hearing thereby were in breach of the provisions of Paragraph 2 of the Practice Directions 2007. Counsel for the respondent argues that parties must abide by the rules of pleading and evidence and that the Tribunal is a special court and has its special rules for prompt dispensation of justice and that authorities being relied on by the appellant are in applicable in this petition as the facts are not the same. Further counsel for the respondents submits that the appellant did not plead the documents as required by law which they call electoral result (Form EC 8A, EC 8B, EC 8C, EC 8D and EC 8E) that they did not front load any of them in their replies nor did they give evidence even under cross-examination by the petitioner/respondent’s counsel of the votes cast at the election in the polling booth and any of the collation centres and the score.

The documents did not exist as at the time of the replies were filed by the appellant. The only reasonable conclusion is that Form EC8A, EC 8B, EC 8C, EC 8D and EC 8E were not available at the time the appellant filed their respective replies to the petition. That in both the cases of Omoboriowo V. Ajasin (1984)1 SCLR 108 and Nwobodo V. Onoh (1984)1 SCNLR both the petitioners and the respondent in the case showed the votes scored in the primary voting booths. That in the case of Nwobodo he was unable to prove that the results were forged beyond reasonable doubt.

Learned counsel argued that it cannot be left to presumption that the appellant had the highest lawful votes cast at the election or that he scored 14 of the votes in 2/3 of the 17 Local Government of Enugu State since there was no basis for the presumption. Learned counsel contends that the petitioner/respondent’s case is that there was no election on the 14th and 28th April Gubernatorial election in Enugu State in accordance with the provisions of the constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2006 that Exhibit P1, P2, P3 1-2 shows that the election materials could not have arrive the voting booth stations before 5.30pm. That the 2nd & 3rd respondents/appellants woefully failed to carry out their duties and function in accordance with the provision of the Constitution and Electoral Act 2006.

On the applicability of Buhari V. Obasanjo’s case (supra) learned counsel for the respondent submits that there was no deduction of votes and percentage of votes as set out in Buhari’s case which the non-compliance of the appellants with the provision of the Electoral. Act 2006 has been shown clearly by evidence of the witnesses of the petitioner/respondents. That the non compliance affected the purported result of the election.

Issue NO.2 under consideration is on whether the learned trial Judges were right when relying on the Practice Directions 2007 they held that this case is exempt from the requirements of proof as established in the cases of Ayogu V. Nnamani (2006)6 NWLR (Pt.981)160 & Nnaji V. Agbo (2006)2 EPR.

At page 436 of the printed record the learned trial Tribunal states thus:-

“By way of emphasis, we wish to state that in view of the provisions of the Practice Directions on streamlining of witnesses the case of Ayogu vs. Nnamani (2006)8 NWLR (Pt.981) 160 at 194 and Nnaji vs Agbo (2006)2 EPR 867 at 890-891 where it was stated a petitioner should call witness from each polling booth that they could not vote and/or tender voters’ register no longer holds sway, the old order has given way to the new one.”

Earlier in this judgment I have reproduce the contents of paragraphs 13 and 10 of the petition and also paragraphs 3 and the appellant’s reply to the petition. These paragraphs contained the allegations of malpractices in the conduct of the Enugu State governorship election of the 14th and 28th April 2007 by the petition/respondent and the denial thereof by t he appellant. The parties have joined issues as regard the conduct of the said election.

Under the law our adjectival law of evidence primarily governs the burden of proof in all cases – the ultimate responsibility to adduce evidence to establish the case as disclosed from the pleadings lies on that person who will lose if no evidence is led at all at the trial. This principle applies evenly to all cases including election petitions. See Awuse V. Odili (supra). The petitioner in ground (b) of the petition states thus –

“The 1st respondent was not elected by majority of the lawful votes cast at the elections.”

The petitioner reached this conclusion because he alleged that voting did not take place at all in most polling booths in the governorship election held in Enugu State in April 2007. Under the law, the onus of proving that voting did not take place in most polling booths is placed squarely on the petitioner – he who asserts must prove. The manner of proving whether or not voting took place in any polling booth is set out in the principles laid down in the cases of Ayogu V. Nnamani (supra) and Nnaji V. Agbo (supra).

In Ayogu V. Nnamani (supra) at page 187 this Court stated thus:-

“In the instant case the appellant who asserted before the lower tribunal that there was no voting materials, no INEC officials to supervise the voting and that no voting in fact took place in at least 13 Local Government Areas out of the 17 LGAs in Enugu State must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the respective LGAs to show that he could not vote on the said 13/4/03 at the said polling booth as there were no voting materials or INEC officials to preside over the voting. He must also establish by credible evidence how the lack of voting in these LGAs affected the final result of the election to his disadvantage.”

Also -in Nnaji V. Agbo (supra) this Court while reversing the decision of the Tribunal said:-

“I must observe that the Tribunal has not only misconstrued the decision of the case under reference but also the provisions of Sec. 137(1) and 139 of the Evidence Act and therefore misplaced the burden of proof.”

At page 890 the Court of Appeal concluded thus:-

“In the instant, by virtue of Section 150 of the Evidence Act there is presumption that elections were duly conducted in all the wards including the disputed areas and that all the condition for  valid elections were duly met, it is therefore incumbent on the petitioner to call the voters to show that they did not vote in the disputed wards on the date because there were no electoral official present and that no voting counting or announcement of results took place in the disputed wards on that day.”

See also Onoyon V. Egari (1995)5 NWLR (Pt.603)416 at 425.

The rationale behind this hallowed principle in the cases above is understandable because he who asserts must proof under Sections 135 to 139 of the Evidence Act.

It is clear from the principle laid down in the dictums cited in the above cases, the Practice Directions did not and could not and was not intended to overrule these principles of law. A plethora of other judicial authorities are also in the same vein i.e. that a petitioner alleging non-voting in order to succeed must call voters from each of the polling booths in the affected constituency or area as witnesses who would tender their voters’ cards and testify that they did not vote on the day of the election and from which it could be ascertained whether there were ticks against the names of registered voters on the day of the election.

Further by virtue of Section 50(2) of the Electoral Act 2006 the issue of whether a voter cast his vote could be ascertained by examining the voters’ register to know whether the person’s name was marked as having voted. See Awuse V. Odili (supra).

The learned trial Judges of the trial Tribunal relied on the provisions of Practice Direction to dispense with the need to require the petitioners to prove their case in the manner laid down in Ayogu V. Nnamani (supra); Nnaji V. Agbo (supra) and Onoyon v. Egari (supra). The position of the law as it stands is that Practice Direction cannot displace the provisions of the substantive law and court decisions. In University of Lagos & Anor v. M.I. Aigoro (1984)11 SC 152 at 191 the Supreme Court, per Obaseki, JSC held:

“Practice Directions do not have the authority of Rules of court although they are instructions in aid of the practice in court. They cannot by themselves overrule court decisions.”

From the foregoing there is nothing explicit or implicit in the said Practice Directions that could justify the said view of the lower tribunal in holding that there were indeed no elections much more creating a ‘new order’. The aforementioned principles established in the decided cases by superior courts of this country have not and cannot be overruled or overtaken by the Practice Directions as far as proof of non-voting in a constituency is concerned.

Accordingly issue No.2 is resolved in favour of the appellant against the respondent.

On the applicability of the substantiality principle as enunciated in Buhari V. Obasanjo (2005)3 NWLR (Pt.941)241 at 370 the trial Tribunal stated thus:-

“It is therefore, our humble view that this petition does not fall within the test of substantial compliance i.e. deduction of votes or percentage of votes affected set down in Buhari & Anor V. Obasanjo (2005) All FWLR (Pt.2731); (2005)3 NWLR (Pt.94 1) at 370. You cannot take something from nothing. What we have here is make belief or a fairy tale. A house built on sand.

The test will only apply where there is credible evidence of proper election, with some rough edges. Not when there is credible evidence that votes were allotted without election. In other words, spurious.”

In Buhari V. Obasanjo (supra) where the substantiality test was enunciated the Supreme Court per Belgore, JSC (as he then was) stated as follows:-

” it is manifest that an election by virtue of Section 135(1) of the Act shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of the Act it must be shown clearly by evidence that the non- compliance has affected the result of the election. Election and victory is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures i.e. votes that the non-compliance attracted or omitted.”

By the petitioner’s own showing as per paragraphs 8 and 9 of his petition, INEC announced the votes polled and declared the appellant elected. There is a presumption of correctness of the result of an election as declared by the electoral commission. This naturally translates to the fact the election in question is deemed to have been duly conducted until the petitioner proves the contrary. As a matter of fact, the Tribunal’s conclusion at page 438 of the record confirmed that elections took place when it states thus:-

” ….. ” We have no doubts in our minds that majority of the electorates in Enugu State were denied the right to choose who their governor should be.”

Implicit in the pronouncement of the Tribunal as set out above is that there was an election at which some people voted a minority of the electorate. Assuming that this finding was right, it is incumbent on the Tribunal to demand proof of what this minority/majority was and how the participation or non-participation affected the final result of the election. See Biyu V. Ibrahim (2006)8 NWLR (Pt.981)1. The Tribunal’s finding contrary to its earlier statement that the exercise was ‘make belief or a ‘fairy tale’ establishes that there was an election, albeit with some imperfections which determination ought to have activated the proper application of the substantiality test as in Buhari V. Obasanjo (supra) in the determination of the petition by the Tribunal.

As in Biyu’s case even where the petitioner is alleging that elections were not conducted or were not conducted in most areas, the substantiality principle will apply. The petitioner must show how the number of votes involved and how that would affect the final result of the election. The substantiality principle was restated by this Court in the recent case of Buhari V. INEC & Ors (Unreported) Suit No. CA/A/EP/1207 delivered on 26th February 2008 and Atiku v. Yar’Adua (Unreported) Suit No. CA/A/EP/3/07 delivered on 26th February 2008. It is crystal clear from the foregoing that substantiality principle enunciated in Buhari V. Obasanjo (supra) is applicable in the determination of the petition before the trial Tribunal and it ought to have been guarded by the principle. Accordingly Issue NO.3 is resolved in favour of the appellant against the respondent.

Issue No.4: were the learned trial Judges right in their application of the Practice Direction 2007 to reject the documents tendered by the appellant in support of the his case?

On this issue learned senior counsel for the appellant submits that the trial Tribunal having elevated the Practice Directions above the relevant substantive Rules of court and judicial authorities erroneously rejected the documents tendered by the appellant in support of his case on the ground that the documents were not front-loaded as required by the Practice Directions. The documents, which the appellant sought to be tendered, are results sheets used at the Governorship election in Enugu State which were duly pleaded by the appellant and which are very relevant and germane to the determination of the petition. Learned counsel referred us to paragraph 2 of the Election Tribunal and Court Practice Direction 2 007, Section 151 of the Electoral Act, 2 006, Paragraph 12(1) of the First Schedule to the Electoral Act 2006, also referred are Nigerian Airport Authority V. Chief Dike Celestine Okoro (1995)7 SCNJ 1 at 13; University of Lagos & Anor V. M.1. Aigoro (supra); Afribank (Nig) Plc V. Akwara (2006) 5 NWLR (Pt.974) 619 at 654; Haruna V. Modibbo (2004) 16 NWLR (Pt.900) 487; Alhaji Atiku Abubakar V. Yar’ Adua (Unreported) Suit No. SC/288/2008 delivered on 25th January 2008.

Learned senior counsel for the appellant submits that the rejection of the results sought to be tendered through RW13 has occasioned substantial miscarriage of justice as the absence of the documents weighed heavily on the minds of the learned trial Judges to the prejudice of the appellant. He urged us to resolve the fourth issue in favour of the appellant against the respondent in this appeal.

In response to the appellant’s submissions on issue No.4 learned counsel for the respondent submits that the appellant did not plead the documents as required by law which they called electoral result (Form EC 8A, EC 8B, EC 8C, EC 8D, EC 8E) that they did not front load any of them in their replies nor did they given evidence even under cross examination by the petitioner/respondent’s counsel of the votes cast at the election in the polling booth and any of the collation centres and the score.

It is further submitted for the respondent that the documents did not exist as at the time the replies were filed by the appellant.

That the only reasonable conclusion is that the Forms EC 8A, EC 8B, EC 8C, EC 8D & EC 8E were not available at the time the appellant filed his reply to the petition. Learned counsel submits that the appeal fails on this issue and should be dismissed.

In essence issue No.4 is on whether the provisions of the Practice Directions made to aid Rules of court is to override the provisions of the relevant substantive law, rules of court or judicial authorities.

In the appeal at hand the appellant applied to tender all the result Forms used at the election i.e. Forms EC 8As, EC 8Bs, EC 8Cs, EC 8Ds & EC 8Es through RW13 but the trial Tribunal relying on the provision of the Practice Direction 2007 rejected the documents tendered by the appellant in support of his case on the ground that the documents were not front loaded as required by the practice Directions.

Now to resolve this issue it is pertinent to look at the law and Rules of procedure guiding the filing of replies to election petitions and the law regulating proceedings in Election Tribunals.

Paragraph 2 of the Election Tribunal and Court Practice Directions 2007 provides as follows:-

“The respondent’s Reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and written statement on Oath.”

Section 151 of the Electoral Act 2006 provides that:-

“The Rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to this Act.”

Paragraph 12(1) of the First Schedule to the Electoral Act 2006 states that:-

“The Respondent shall within fourteen (14) days of entering an appearance, file in the registry his reply specifying in it which facts alleged in the election petition he admits and which of the facts alleged in the election petition he denies and he relies in opposition to the election petition.”

The Evidence Act by virtue of the provisions of Section 1(2) thereof applies to all Election Petition Tribunals since the proceedings are’ judicial proceedings’ within the contemplation of the said Act. Section 6 of the Evidence Act provides that evidence may be given of all relevant facts. The combined effect of Sections 91(1) and 111 (1) of the Evidence Act is that certified true copies of public documents may be tendered in evidence if they are relevant to the fact in issue.

Neither the Electoral Act 2006 including the Schedule made thereto, nor the Evidence Act made any provision to the effect that if a document is not “front loaded” that same will not be admitted in evidence.

The law is that Practice Directions and Rules of court cannot override statutory provisions. In Afri Bank (Nig) Plc V. Akwara (supra) the Supreme Court per Ogbuagu JSC states thus:-

“Neither Practice Directions nor Rules of court can override statutory provisions.”

The Practice Directions 2007 itself subjected itself to any statutory provision. Paragraph 4(1) of the Practice Direction 2007 states thus:-

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

Beside, Practice Direction is merely direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed. In Alhaji Atiku Abubakar V. Umam Musa Yar’Adua (Unreported) Suit No. SC 288/2008 delivered on Friday 25th January 2008, the Supreme Court per Tobi JSC at pages 24-25 of the judgment states thus:-

“Rules of court, which include Practice Directions are not intended to be ridiculously applied to a slavish point particularly if such application will do injustice in the case… This court cannot myopically or blindly follow Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day not come And what is more, election petitions are sui generis and should be treated in that domain or realm. If courts of law are bound to do substantial justice in ordinary civil matters, how much less in an election petition.”

Therefore t he I earned trial Tribunal fell into grave error when it rejected the documents tendered by the appellant in support of his case on the ground that the documents were not front-loaded as required by the Practice Directions. This is more so when the documents which the appellant sought to be tendered, are results sheets used at the governorship election in Enugu State which are duly pleaded by the appellant and which are very relevant and germane to the determination of the petition. The rejection of the results sought to be tendered through RW13 has occasioned substantial miscarriage of justice as the absence