Mr. Ugochukwu Agballah V. Mr. Sullivan Iheanacho Chime & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

The instant appeal is against the judgment of the Governorship and Legislative Houses Election Tribunal holden at Enugu, in Enugu State, which was delivered on 18/01/2008. The Appellants petition (NAGL/EPT/EN/GOV/37/2007) was- dismissed by the lower tribunal in consequence of the judgment in question.

Its common knowledge that gubernatorial elections were conducted on 14/4/07 in 13 out of the 17 Local Government Areas in Enugu State. Likewise, the gubernatorial elections in to the remaining 4 Local Government Areas of Enugu State (i.e. Enugu South, Udi, Nsuka and Isi-Uzo Local Government Areas) were later held on 28/4/07.

Both the Appellant and the 1st Respondent had contested the said elections on the platforms of their political parties, the Accord (A)and peoples Democratic Party, (PDP)respectively. Apart from the Appellant – and the 1st Respondent, fifteen (15) other candidates had equally contested the said elections under their respective parties’ platforms.

At the conclusion of the elections in question, the 1st Respondent was accredited with a total of 811,798 votes and thus declared and returned as the winner thereof, On the other hand, the Appellant was credited with a total of 15,287 votes.

Not unnaturally, the Appellant was dissatisfied with the result of the elections. He accordingly filed a petition (No NAGL/EPT/EN/GOV/37/2007) in the lower tribunal on 25/5/07, praying for the following relief:

32) … that it may be determined and declared that the sold 1st Respondent Mr. Sullivan Iheanacho Chime was not validly elected or returned having not polled the highest number of lawful votes cast at the Gubernatorial elections of April, 14th 2007 and that the petitioner Mr. Ugochukwu Agballah be declared validly elected or returned, having polled the highest number of lawful votes cast at the gubernatorial election of April, 14th 2007 and having obtained one-quarter of the votes cast at the election In each of at least two thirds of the Local Governments of Enugu State.

The 1st Respondent, as well as the 2nd – 3238th Respondents filed their replies to the petition on 28/6/07 and 26/6/07, respectively. At the conclusion of the pre-hearing conference, hearing in the petition commenced on 19/9/07. The Appellant and one other person (SOLOMON ACHIKANU) gave evidence in proof of the petition as PW1 and PW2.A total of 2558 carbon copies of the polling booths results (Forms EC8A) allegedly used for the April 14, 2007 Governorship elections for Enugu State, were also tendered and admitted at the Appellants Instance as exhibits P1 – P2558, respectively.

On his own part, the 1st Respondent called only one witness in the person of Dr. (Mrs.) Anthonia Chiebonam Ekwo the Logistic officer, INEC Enugu State who testified as RW1. The 2nd – 32 – 38th Respondents, on the other hand, called a total of seventeen (17) witnesses as RW2- RW18, respectively. At the conclusion of the trial, the lower tribunal in a unanimous judgment, delivered on 18/01/08, held inter alia, thus:

We agree with Dr. Ibik, SAN at page 41 of his final address that the burden of proof is on the petitioner. Since the petitioner has failed to prove his petition, it is not even necessary to consider the Respondents case. The petitioner has to succeed on the strength of his own case and not on the weakness of the defence. See AWUSE VS ODILI (2005) ALL FWLR (Pt.261) 248 at 313.

Finally, it is quite obvious that with the resolution of all the two issues for determination against the petitioner, this petition is bound to collapse. Accordingly, this petition fails and it is hereby dismissed. Costs of N20,000.00 is awarded to each sets of Respondents.

Being dissatisfied with the judgment of the lower tribunal inquestion, the Appellant filed this appeal on 24/01/08 in the lower tribunal. The Notice of Appeal was predicated on a total of sixteen (16) Grounds of Appeal, thereby praying the court for the following reliefs:

AN ORDER of this Honourable Court allowing this appeal, setting aside the judgment of the Election Tribunal dated 18th day of January, 2008 dismissing the petitioners petition and substitute the Tribunal’s Judgment with an order declaring the petitioner as duly elected having obtained the highest number of valid votes cast at the election of April 14, 2007 and satisfied the requirements of the Constitution.

Its rather instructive, that all the parties in this appeal have filed and served their respective briefs of argument. The Appellants brief, in particular, was filed on 28/02/08, The 1st Respondents’ brief, on the other hand, was filed on 06/3/08, The 2nd – 3238th Respondents’ brief was equally filed on 06/3/08, A total of thirteen (13) issues have been formulated in the Appellants brief for the determination of the appeal, to wit:

ISSUE 1

3.1. whether the Election Tribunal was right to have considered only the paragraphs of the petition outside the issues for determination?

(Issue 1 is distilled from ground 1 of the Grounds of Appeal)

ISSUE 2:

3.2. Whether the Election Tribunal after having that the Appellant abandoned paragraphs 31 {a} and 31 (b) of the petition was right to have relied on the said paragraph 31 (b) that the Appellant is challenging the authenticity of the result declared by Independent National Electoral Commission {INEC} and therefore legally bound to produce two sets of results in evidence? And if the answer is in the negative;

3.3. Whether the Tribunal was right to hold that since the Appellant failed to produce two sets of Results of the election in question in evidence, it cannot be Determined whether the Appellant in fact obtained a majority of lawful votes, and accordingly resolved issue number 2 for determination against the Appellant in favour of the Respondents. This is to say, that the Appellant did not In fact obtain a majority of lawful votes of the electorate in Enugu State and did

not fulfill the conditions in the constitution, and Governor of Enugu State?

(Issue 2 is distilled from ground VIII and XI of the Grounds of Appeal).

ISSUE 3

3.4. Whether the Election Tribunal was right when it held that the petitioner has failed to prove that the 1st respondent was not duly elected by majority of valid votes cast at the election of April 14, 2007 for the governorship in Enugu State (Issue number 3 is distilled from ground III of the Grounds of Appeal)

ISSUE 4

3.5. Whether the 1st respondent complied with the mandatory provision of paragraph 15 of the First Schedule to the Electoral Act, 2006 and what Is the effect of non-compliance with the said provision.

(Issue number 4 is distilled from ground XIII of the Grounds of Appeal)

ISSUE 5

3.6. Whether the Tribunal was right when it failed to consider the paragraphs of the petition that relate to the issue for determination?

(Issue number 5 is distilled from ground II of the Grounds of Appeal).

ISSUE 6

3.7. Whether the decision of the Tribunal is not perverse since the tribunal failed to evaluate the evidence called by the parties and also failed to place the evidence of the petitioner and the respondents on an imaginary scale of justice before it came to the conclusion that the petitioner had not established his case.

(Issue number 6 is distilled from ground XVI of the Grounds of Appeal).

ISSUE 7

3.8. Whether from the circumstances of this case, the Election tribunal was right when it held that the failure of the petitioner to call the actual agents who worked for the petitioner in the field is very fatal to his case.

(Issue7 is distilled from ground V of the Grounds of Appeal).

ISSUE 8

3.9. Whether the Election Tribunal was right when it held that the evidence of Pw1 in relation to Exhibit P1 – P2558 Is hearsay and that Exhibit P1 – P2558 should not have been admitted through PW1 and even if those documents are not expunged from the record of the Tribunal they deserve no probative value.

(Issue 8 is distilled from ground VI of the Grounds of Appeal)

ISSUE 9

3.10. Whether the respondents’ witnesses proved that Exhibit P1 – P2558 were not the carbon copies of the original document in the custody of the Independent National Electoral Commission (INEC).

(Issue 9 is distilled from grounds VII and XIV of the Grounds of Appeal)

ISSUE 10

3.11. Who scored the majority of lawful votes cast at the election and satisfied the requirement of the Constitution?

(Issue 10 is distilled from grounds XII and XV of the Grounds of Appeal)

ISSUE 11.

3.12. From the evidence before the Tribunal, has the 2nd respondent conclusively proved that the Appellant was Issued with certified true copies of the results in INEC possession?

(Issue 11 is distilled from ground IX of the Grounds of Appeal)

ISSUE 12

3.13. From the circumstances of this case, who can the provisions of section 149 (d) of the Evidence Act be Invoked against?

(Issue 12 is distilled form ground X of the Grounds of Appeal)

ISSUE 13

3.14. Whether the 1st respondent admitted paragraphs 1 and 2 of the petition in paragraph 2 of his reply, and if yes, what is the effect of such admission?

(Issue 13 is distilled from ground IV of the Grounds of Appeal).

The 1st Respondent has formulated a total of six (6) issues in the brief thereof, thus:

1. ISSUE 1

Was the trial Tribunal right in its statement of this Issues arising for determination in the case against the background of the pleadings of the parties and did the Tribunal determine the said issue – Grounds I and II.

ISSUE 2

Was the trial tribunal right in its finding that the Petitioner, not having adduced the required evidence to prove his allegation that the 1st Respondent was not duly elected by a majority of valid votes cast at the election, was not entitled to judgment – Grounds III, XV and XVI.

ISSUE 3

Did the 1st Respondent in his Reply admit the Petitioner’s case and does the said Reply accord with the requirements In paragraphs 12 (2) and 15 of the First Schedule to the Electoral Act 2006 – Grounds IV and XIII.

ISSUE 4

Were the Learned trial Judges right when they held that failure by the Petitioner to call his agents from the polling booths who allegedly counter signed and collected Exhibits P1 – P2558 was fatal to the petition as the same amounted to hearsay: in Re BUHARI V. OBASANJO (2002) 3 NWLR (PT. 941)1. Were the said Exhibits duly discredited in evidence – Grounds V, VI, VII, and XIV.

ISSUE 5

In circumstances of this Petition was the Petitioner obliged to tender two sets of result as held by the Tribunal and what are the consequences of his failure to do so? – Ground XIII, IX, X, and XI.

ISSUE 6

Was the trial tribunal obliged in the circumstances of this case to tabulate figures from Exhibits P1 – P2855 XII.

The 2nd – 3238th Respondents, on the other hand, raised a total of seven (7) issues in the brief thereof, viz:

2.1. Whether the argument advanced by learned counsel for the appellant set out in paragraphs 2.9 to 2.28, pages 3 .7 and paragraphs 4.55 to 4.70, pages 31 to 35 of the appellant’s brief of argument are competent and whether same can be taken Into consideration in the determination of this appeal. (See preliminary objection filed with this brief of argument).

2.2. Whether the tribunal below properly considered the issues for determination and the pleadings relating thereto( grounds 1 & 2).

2.3. From the state of the pleadings and evidence led was the appellant duly elected by majority of votes cast at the election (grounds 3, 4, 5 &16).

2.4. Was the tribunal right in refusing to act on Exhibits P1 – P2558 which are carbon copies of result sheets disowned by the Independent National electoral Commission(grounds 6, 7, 12 & 14).

2.5. Did the appellant discharge the legal burden of proving the falsity of and or return made by INEC in favour of the 1st respondent (grounds 8, 11 & 15.

2.6. Whether the appellant obtained certified true copies of authentic results from INEC and whether Section 149 (d) of the Evidence Act can be invoked against him (grounds 9 & 10).

2.7. Is the replies filed by the respondents herein in conformity with the provisions of paragraphs 12 (2) and 15 of the 1st Schedule to the Electoral Act 2006 (ground 13).

As it would appear on the record of proceedings of this court, on 20/5/08 when this appeal last came up for hearing, all the three briefs referred to above were adopted by the respective learned counsel to the parties, thereby resulting in the appeal being reserved for delivery of judgment, I have noted that the issues formulated by the Appellant in the brief thereof were serially numbered as issues 1 – 13. However, a cursory look at the said issues would reveal that they are, up to 14 in

number. The reason being that what the Appellant stated to be “ISSUE 2 (3.2 & 3.3)” turns out to be two issues. Thus, paragraph “3.3” which is the second leg of Issue 2 is renumbered as Issue 3. Whereas, Issue NO.3:-

ISSUE 13 are hereby renumbered as ISSUE 4 -ISSUE 14, respectively.

Having critically contrasted the 14 issues raised by the Appellant in his brief with the 6 issues and 7 issues formulated by the 1st Respondent and 2nd -3238th Respondents in the respective briefs thereof, I am inclined to determine this appeal on the basis of the Appellants 14 issues, It is a well settled principle of law that issues for determination formulated in a brief of argument must be precise and devoid of irrelevant complexity or verbosity, so as to ease comprehension of the matters to be determined in the appeal. See GUDA VS KITTA (1991) 12 NWLR (part 629) 21; All NIGERIAN PEOPLES PARTY & 2 ORS VS THE RESIDENT ELECTORAL COMMISSIONER AKWA IBOM STATE & 139 ORS, Appeal NO. CA/PH/NAEA/222/2007 (unreported) delivered on 18/02/08.

It is also a trite cardinal doctrine, that only issues are usually argued in brief of argument. Thus, grounds of appeal are not argued in brief of argument. However, its instructive that such issues where raised or formulated must relate to the grounds of appeal upon which they are supposedly predicated. Thus, where issues are found to be unrelated to grounds of appeal, they are with out much ado deemed to be incompetent and liable to be discountenanced. See OCEANIC BANK INT. LTD. v. CHITEX IND. LTD. (2001) FWLR (part 4) 678; 689 paragraph H; DADA v. DOSUNMU (2006) 18 NWLR (1010) 134 at 165 – 166 paragraphs C – C; IDIKA v. ERISI (1988) 2 NWLR (part 78) 563; ANIMASHAUN v. UCH (1996) 10 NWLR (part 476) 65, respectively.

ISSUES 1, 2& 3:

In the course of the determination of the appeal, issues 1, 2&3 will be taken together. The issue No 1 raises the question as to whether the lower tribunal was right to have considered only the paragraphs of the petition out side the issues for determination. Issues 2 and 3 raise the question as to whether the lower tribunal was right in holding that the alleged abandonment of sub-paragraphs 31 (a) and 31 (b) of the petition and the Appellants failure to produce the two sets of results of the election in evidence, it can not be determined that the Appellant had in fact obtained a majority of lawful votes and therefore ought not have been returned as the winner of the election. The three issues were indicated to have been distilled from Grounds I, VIII and XI of the Grounds of Appeal.

As it would appear from the Appellants brief at pages 3 – 7, the learned counsel Mike Okoye Esq. has prefaced the submission thereof with what he termed ‘PRELIMINARY ISSUE’. The ‘preliminary issue’ could aptly be described as a rumbling or roving analytical deductions, that are not only novel but also superfluous. Its not worthy of any consideration and ought to thus be discountenanced.

The submission of the Appellants learned counsel on issues 1, 2 & 3 above was to the combined effect, inter alia, that the statement of his witness filed along with the petition did not contain evidence In support of his pleadings in paragraphs 31 (a) and 31 (b) of the petition.

That the PW1 and PW2 did not lead evidence in support of the said paragraphs. A reference was made to the judgment of the lower tribunal (at page 667 of the Record) wherein the lower tribunal stated thus:

The legal position is that a pleading is abandoned where a party offered no evidence to prove same. See OMOBORIOWO V. AJASIN (1984) 1 SCNLR 108 cited at page 7 of the 1st respondents reply on point of law. In the instant petition, the petitioner offered no evidence in respect of paragraphs 31 (a) and 31 (b) only.

It was argued that having pronounced that the said paragraphs 31 (a) & 31 (b) of the petition had been abandoned, it was expected that the lower tribunal would have no business in considering and relying on the paragraphs in the determination of petition, Pages 670, 672, 667-668 of the Record were referred to as instances in which the lower tribunal made allusions to paragraphs 31 (a) and 31 (b) of the petition inquestion. It was contended by the learned counsel, that the lower tribunal should have limited itself to the sole issue of who scored the majority of lawful votes cast at the election. See CA/A/EP/2/2007. M. BUHARI & ANOR VS INEC & ORS delivered on 26/2/08 (unreported). The court was urged to accordingly set aside the lower tribunal’s decision on the grounds that it ought not to have relied on the alledged abandoned paragraphs 31 (a) and 31 (b) of the petition inquestion to determine the claim of the Appellant therein.

The 15th Respondents issue NO.1 was stated to have been distilled from Grounds 1 & 2 of the Appellants Grounds of Appeal. The argument proffered thereon relates to issues 1, 2 and 3 of the Appellant. It was the submission of the 1st Respondents learned senior counsel Chief (Mrs.) A.J. Offiah, SAN, that the Appellants argument though ingenious is rather shallow. The learned silk made an allusion to, most especially, paragraphs 4 – 20, 31, 31 (a) and 32 of the petition, to the effect that the Appellant had never at any stage of the proceedings in the lower tribunal withdrawn any paragraphs of the pleadings, and that none was actually struck out. That, the Appellants deposition and that of PW1, Solomon Achikanu, which constituted their evidence – in – chief was a verbatim reproduction of all the paragraphs of the petition. A reference was made to pages 295 -297 volume 1 of the Records, regarding the “pre-hearing sheer’ filed by the Appellant.

That, by the said pre-hearing sheet, the Appellant intended to call ‘a single expert to give a forensic analysis of the ballot paper and result forms in INEC’s possession, as pleaded in paragraphs 31 (a) and 31 (b) of the petition inquestion.

It was accordingly argued, that issues for determination at the trial level were joined on the pleadings. See GEORGE VS DOMINION FLOUR MILLS LTD. (1963) 1 ALL NLR 71; FIRST BANK OF NIG. PLC VS NDOMA EGBA (2006) ALL FWLR (part 307) 1012. That, for parties to [therefore] succeed, they must lead evidence relevant to the issues based on the averments. See EDOSA VS ZACCALA (2006) FWLR (part 306) 81; KWARA HOTEL VS ISHOLA (2002) 9 NWLR (part 773) 604; UBN PLC VS ISHOLA (2001) 15 NWLR (part 735) 47, respectively.

It was further submitted, that it was with the failed intention of proving the various allegations in the petition, that the Appellant and PW1 testified and tendered exhibits P1- P2548 and thereafter closed the case thereof. That, the lower tribunal was entitled to look at the totality of the pleadings, including paragraphs 31 (a) and 31 (b) to determine whether the Appellant had proved his case, That, a clear distinction must be drawn between failure to lead evidence in proof of an averment and the withdrawn of an averment (pleading), which if struck [out] requires no proof.

According to the learned silk, the Appellants answer in the pre-hearing information sheet exposed the fact that he had not abandoned the said paragraphs 31 (a) & 31 (b) of the petition, Thus, he cannot be deemed to have abandoned the paragraphs inquestion. That, the lower tribunal having formulated the issues for determination based on the state of the pleadings, was [therefore] right to have considered the case against the background of what was alleged and required to be proved, and naturally found that the same was not proved, On that submission, the court has been urged upon to accordingly resolve grounds 1 and ” of the appeal against the Appellant,

As alluded to above, the 2nd – 3238th Respondents have raised a total of seven (7) issues in the brief thereof for determination, On the 20/5/08, when the appeal last came up for hearing, A. I. Ani Esq, the learned counsel to the 2nd – 3238th Respondents, alluded to the Notice of preliminary objection filed on 06/3/08 along with the brief thereof. The preliminary objection in question was said to have been incorporated and argued in issue No,1 of the 2nd – 3238th Respondents’ brief, Thus, issue No,1 of the 2nd – 3238th Respondents’ brief and the argument there upon exclusively relates to the preliminary objection inquestion, It raises the question of whether the argument of the Appellants learned counsel set out in paragraphs 2.9 to 2,28 and 4,55

to 4, 70 (at pages 3 to 7 and 31 to 35 of the Appellants brief) is competent, and same can be considered in the determination of the appeal. It was alleged that in the said paragraphs 2.9 to 2-28 of the Appellants brief, copious reference was made to section 147 (1) and (2) of the Electoral Act, 2006, 6th Schedule to the 1999 Constitution, and many cases on the interpretation of statutes and the nature of election petitions, It was submitted, that the Appellants counsel made heavy weather of the two depositions of RW1 instead of concentrating on the issue of evidence raised in issue No, 6 and Ground 16 of the Grounds of Appeal. Thus it was contended that where an Appellant canvasses issues that are not supported by any ground of appeal, as in the present case, that argument will be discountenanced, See IDEOZU VS OCHOMA (2006) 4 NWLR (part 970) 364 at 390. That, in some exceptional cases, fresh issues may be canvassed on appeal, but only with the leave of court. See OYAKIRE VS STATE (2006) 15 NWLR (part 1001) 157 at 170; EJOWHOMU VS EDOK-ETER MANDILAS LTD (1986) 5 NWLR (part 39) at 30-31, per OBASEKI, JSC; BHOJSONS PLC VS DANIEL KALIO (2006) 5 NWLR (part 973) at 330.

According to the learned counsel, Ground 16 of the Grounds of Appeal which is an omnibus ground, challenges the two depositions of DW1 as well as the other witnesses’ failure to take oaths in accordance with the oaths Act. That, an issue of law goes beyond the question of weight of evidence. See BEN VS STATE (2006) 16 NWLR (part 1006) 582 at 602. That, the combined effect of sections 136 (2) and 147 (2) of the Electoral Act, 2006 [supra) was not raised in the lower tribunal. No leave was obtained to raise it on appeal. The issue In question was not covered by any ground of appeal. That, the argument thereon goes to no issue, and ought to be discountenanced. It was finally submitted, ex-abundanti cautela, that the submission of the Appellant that depositions on oath must end with a particular sentence is not known to law. See IBRAHIM VS INEC (1999) 8 NWLR (part 614) 334 at 347. The court was urged to resolve the issue in favour of the 2nd – 3,238th Respondents, and accordingly strike out the offensive paragraph of the Appellants brief inquestion.

I have critically, but rather dispassionately, considered the submissions of the learned counsel in the respective briefs thereof, and the various illuminative authorities referred to therein. As it would appear from the Records, the Appellants brief is made up of a total of 64 pages. The introduction and statement of facts are contained at pages 2 -3. Pages 3 -7 relate exclusively to what the Appellants learned counsel tagged – “PRELIMINARY ISSUE”. Pages 7 -9 contain the 14 issues formulated for determination. Whereas, pages 10 – 64 relate to the argument canvassed on each of the 14 issues inquestion. The last four pages of the brief, on the other hand, relate to list of authorities referred to therein. There is every reason to hold that the submission or argument of the learned counsel to the Appellant at pages 3 – 7 of the brief thereof under the heading “PRELIMINARY ISSUE” is novel, superfluous, and rather a sheer wasteful exercise, for some obvious reasons. Firstly, the introduction of the so called “PRELIMINARY ISSUE” in the brief is most undoubtedly antithetic to the principles and practice governing brief writing, as provided under the Court of Appeal Rules, 2007, the Practice Direction, 2007 and the plethora of authorities relating thereto. Its trite that a brief of argument shall essentially contain (i) the issues arising in the appeal, as well as amended or additional grounds of appeal; (ii) the ,reasons or argument canvassed shall be supported by such particulars as titles, dates and pages of authorities (cases) reported in reputable Law reports etc, including the summary of such decisions, statutory instruments, law books, legal journals, etc; (iii) a brief shall also be concluded with a numbered summary of the points raised therein, and the reasons upon which the argument is predicated. See Order 17 Rule 3 of the Court of Appeal Rules, 2007 (supra) which has been incorporated mutatis mutandi, in paragraph 6 of the Practice Direction (No.2), 2007 (supra).

The significance of a brief of argument to the administration of Justice, especially with special regard to both the Supreme Court and Court of Appeal, can not be over emphasised. The introduction of brief writing for appeals in this country was one of the many laudable initiatives or steps which had been taken about three decades ago to quicken the hearing of appeals in both courts. It was rightly believed that the steps taken would cherishingly raise the standard of administration of justice in both courts vis-‘C3 -vis save a good deal of precious time for argument of appeals, thereby discouraging the pursuit of intractable and frivolous appeals, or advancement of preposterous argument. Thus, where an appeal is obviously indefensibly vexious, or the judgment appealed against is rather defective, unconstitutional, or outrageously illegal, the counsel on either side has a duty to ideally so state in the brief thereof. Thus, the appeal could be expeditiously, and where necessary, summarily disposed off. See MANUAL OF BRIEF WRITING IN THE COURT OF APPEAL AND SUPREME COURT OF NIGERIA at page 4 by Philip Nnaemeka Agu, JCA (as he then was) published by Fourth Dimension publishing Co. Ltd,1986. See also ALL NIGERIAN PEOPLES PARTY& 2 ORS VS THE RESIDENT ELECTORAL COMMISSIONER, AKWA IBOM STATE& 139 ORS. CA/C/NAEA/222/2007.

judgment delivered on 18/02/08 (unreported).

Secondly, its rather obvious, that the so called preliminary issues in question go to no issue, and ought to thus be discountenanced, on the ground that they were canvassed outside the issues formulated in the Appellants brief. It is a well established doctrine, that what counsel should normally argue in a brief of argument are the issues formulated therein. As such, grounds of appeal should not ordinarily be argued in brief. However, the issues formulated in the brief must be predicated upon or distilled from grounds of appeal, otherwise they are liable to be struck out for being in competent. See OCEANIC BANK INTERNATIONAL LTD.VS CHITEX IND. LTD. (supra) FWLR (part 4) 678 at 689 paragraph H; DADA VS DOSUNMU (supra) at 165 -166 paragraphs C – C; IDIKA VS ERISI (supra) 2 NWLR (part 78) 563; ANIMASHAUN VS UCH (supra) 65, respectively.

A critical appraisal of the 2nd – 3238th Respondents’ brief would reveal that the preliminary objection was incorporated and argued in issue NO 1 formulated therein. He had earlier on 06/3/08 filed an application seeking leave to raise the preliminary objection in pursuance of the provisions of Order 10 Rule 1 of the court of Appeal Rules, 2007 (supra), It is axiomatic that under the said rule 1 of order 10 of the Court of Appeal Rules 2007 (supra), a Respondent wishing to raise a preliminary objection to the hearing of the appeal, shall give three clear days notice to the Appellant before the hearing date, setting out the grounds of the objection thereto, There is every reason to believe that the procedure adopted by the 2nd – 3238th Respondents’ learned counsel by incorporating the preliminary objection in the issue No,1 of the brief thereof, instead of treating it as a preliminary objection in simpliciter, is grossly defective in law. I have deemed it expedient to reproduce in verbatim the said issue No,1 thus:

ISSUES (sic) NO.1

4.1. whether the argument advanced by learned counsel for the appellant set out in paragraphs 2.9 to 2.28 pages 3 -7 and paragraphs 4. 55 to 4. 70, pages 31 to 35 of the appellant’s brief of argument are competent and whether same can be taken into consideration in the determination of this appeal.

(see preliminary objection filed with this brief or argument).

As could clearly be seen, the issue No.1 inquestion was predicated on the “preliminary objection filed with this brief of argument’, rather than on any ground of appeal. As alluded to above, its a trite cardinal principle, that an issue raised or formulated in a brief of a argument must be predicated upon, or distilled from a valid ground of appeal.

Thus, where, an issue is unrelated to or not predicated upon or distilled from any ground of appeal, as in the instant case, such an issue must be declared incompetent, and liable to be struck out. See OCEANIC BANK INTERNATIONAL LTD. VS CHITEX IND. LTD (supra) 678 at 689 paragraph H; et al.

Thus, in view of the above reasoning, the 2nd – 3238th Respondents issue No, 1 is hereby declared as incompetent and accordingly struck out, on the ground that it was not distilled from any ground of appeal. Regarding the Appellants argument on the “preliminary issues” in question, this court has the obligation to, in its own accord, declare same as incompetent, on the ground that they were neither related to the issues formulated in the Appellants brief, nor predicated on any of the grounds of appeal. It should be reiterated that issues for determination must be formulated or distilled from valid grounds of appeal, which in turn have to be predicated upon the ratio decidendi of the decision of the lower court or tribunal appealed against. See DALEK NIG. LTD.VS OMPADEK (2007) ALL FWLR (part 364) 204 at 226 paragraphs F – H. That, being the case, the argument of the Appellants learned counsel on the so called “preliminary Issue” at pages 3 to 7 of the brief thereof, is accordingly hereby discountenanced,

The 2nd – 3238th Respondents’ issue No, 2 relates to the Appellants issue 1 and 5 vis – a – vis grounds 1 and 2 of the Grounds of Appeal. It raises the question of whether the lower tribunal properly considered the issues for determination and the pleadings relating thereto, The learned counsel cited and relied on the Supreme Courts case of MARINE& GEN. ASSO. CO. PLC VS O.U. INS.LTD (2006) 4 NWLR (part 971) 622 at 647, regarding the hearing of an Issue. An allusion was made to the lower tribunal’s judgment at page 664 of the Record to the following effect:

“The relevant averment in the petition in respect of the Invalidity of the 1st Respondent’s votes are contained at paragraphs 9, 10, 15, 16, 21, 27, 28, 29, 31, 31a and 31 b thereof.”

According to the learned counsel, the lower tribunal had considered the above averments vis – a – vis the evidence of the Appellants two witnesses at pages 664 to 668, where in the said lower tribunal came to the conclusion that the Appellant “…has failed to prove that the 1st respondent was not elected by majority of valid votes at the election of 14th April 2007 for Governorship in Enugu State.”

On the Appellants issue NO.2 it was contended that the lower tribunal had examined the issue at pages 666 to 667 of the record and thereby came to the conclusion thus:

“…Accordingly, the Issue number 2 for determination should be and is hereby resolved negatively against the petitioner In favour of the Respondents.”

It was argued that in addition to paragraphs 31 (a) and 31 (b) of the petition, alleged to have been abandoned by the Appellant, the lower tribunal had also considered paragraphs 9, 10, 15, 16, 21. 27, 28, 29 and 31 of the petition which border on criminality requiring proof beyond reasonable doubt. That, it was in the light of the “quantun and quality” of evidence required to prove the averments that the lower tribunal resolved the issues against the Appellant. That, the import of the said, averments is that the Appellant and not the 1st Respondent scored the highest number of votes cast at the election, and ought to be returned as the winner – meaning that the votes upon which the declaration was made in favour of the 1st Respondent was forged.

Finally, this court has been urged not to disturb the findings of fact and or evaluation of evidence made by the lower tribunal, as the said findings are not perverse, See WOLUCHEM VS GUDI (1981) 5 SC 29l.

The court is urged to accordingly resolve the issue inquestion in favour of the Respondents.

Paragraphs 31 (a) and 31 (b) of the petition are both contained at page 80 of the petition. They are reproduced in verbatim as follows:

31 a) your petitioner avers that the ballot papers in INEC’s possession were mixed with multiple thumb print ballot papers. The petitioner will before or at trial move this Honourable tribunal for an order for forensic analysis to be conducted on the ballot papers to as certain multiple thumb printing (valid and Invalid votes).

31 b) Your petitioner also avers that any Unit results Forms EC8A, EC8B, EC 8C and EC 8D In the possession of INEC were written by few writers and not by the designated presiding officers ward Returning officers and the Returning officers at the Local governments in all the polling units, wards collation and Local Governments collation centre. The petitioner will before or at trial move this Honourable Tribunal for an order for forensic analysis to be conducted on the result forms.

It was the submission of the Appellants learned counsel that:

The Appellant in his witness statement filed along with the petition contained no evidence In support of paragraphs 31 (a) and 31 (b) of the petition. Equally, PW1 and PW2 led no evidence in support of paragraphs 31 (a) and 31 (b) of the petition.

See page 11 of the Appellants brief. An allusion was made to page 667 of the Record, wherein the lower tribunal held that a pleading is abandoned where a party offered no evidence in support thereof. It was thus argued, that the said paragraphs 31 (a) and 31 (b) of the petition had been abandoned, on the ground that no evidence was offered by the petition in support thereof.

I have critically appraised the findings of the lower tribunal at pages 667, most especially lines 10 – 27 and 668 151 paragraph thereof, which I have deemed expedient to reproduce thus:

On the allegation at paragraph 29 of the petition which has been reproduced in the written Statement of PW1 and PW2, it has not been shown that the votes credited to the 1st Respondent are the products of two distinct elections for the office of Governor. The election of 28/4/2007 in four Local Government Areas in Enugu State was merely a continuation of the election of 14/4/2007 not a separate election on its own.

However, it appears the petitioner purportedly abandoned the averments in paragraphs 9, 10, 15, 16, 21, 27, 28, 29, 31, 31 (a) and 31(b) of the petition. Refer to page 10 of the petitioner’s written final Address particularly at the last paragraph thereof. The petitioner has also purportedly abandoned the averments at paragraphs 4, 5, 6, 11, 12, 13, 14, 19 and 26 of the petition. The legal position is that a pleading is abandoned where a party offered no evidence to prove same. See OMBORIOWO VS AJASIN (1984) 1 SCNLR 108 cited at page 7 of the 1st Respondent’s Reply on points of law. In the instant petition, the petitioner offered no evidence in respect of paragraphs 31(a) and 31(b) only, where as the evidence of PW1 and PW2 was merely a repetition of all the other paragraphs of the petition. After leading evidence on the said paragraph and after the filing of the final.

It could be seen from the above findings of the lower tribunal, that paragraphs 31 (a) and 31 (b) were held to have been deemed abandoned on the ground that the Appellant had failed to offer any evidence thereon. The gravamen of the Appellants argument on this issue is that “once the Tribunal had determined that paragraph 31 (b) relating to issues of falsification had been abandoned, the only remaining issue arising from the pleadings is simply who scored the majority of lawful votes cast at the election and ought to have been declared the winner of the said election.”

It is not in doubt, that none of the paragraphs of the petition was withdrawn or struck out for whatever reasons. The trial in the petition thus proceeded with the cases of the parties standing on the state of their respective pleadings. What is more, the learned counsel to the Appellant has deposed in the pre-hearing information sheet at pages 338 – 340 of the record, to the effect that he did not intend to amend the petition as filed, and that he needed to call a single expert:

“To explain the similarity of the hand writings on all the result found In INEC’s possession of which INEC issued certified True copies to the petitioner.”

As alluded to above, the single expert inquestion was supposed to have given a forensic analysis on the ballot papers i.e, Forms EC8A, EC8B EC8C and EC8D series referred to in paragraphs 31 (b) of the petition. That being the case therefore, issues for determination had already been joined on the pleadings of the parties in the lower tribunal. See GEORGE VS DOMINION FLOUR MILLS LTD. (1963) 1 ALL NLR 17; FIRST BANK OF NIG. PLC VS NDOMA EGBA (2006) ALL FWLR (part 307) 1012.

It is trite principle of law, that a party that makes an assertion must prove the truth thereof in order to succeed in the action. See ADAKE v. AKUN (2003) 14 NWLR (part 109) 418 at 430 paragraphs D – F. per Ogundare JSC (of remarkable and blessed memory).

It is also the law, that for a party to succeed in the action thereof, he must lead some credible evidence relevant to the issues based on the averments in the pleadings thereof. See EDOSA v. ZACCALA (2006) FWLR (part 306) 881; UBN PLC VS ISHOLA (2001) 15 NWLR (part 735) 47.

I think it ought to be reiterated for the avoidance of doubt, that the failure of a party to lead evidence in proof of the averments in the pleadings thereof may not necessarily affect or change the issues that call for determination on the case. See KWARA HOTELS VS ISHOLA (2002)9 NWLR (part 773) 604.

The Appellant had pleaded in the said paragraphs 31(a) and 31 (b) of the petition thereof that all the unit result forms EC8A, EC8B, EC8C and EC8D inquestion in the possession of INEC, upon which the 1st Respondent was declared and returned as having polled the majority of lawful valid votes at the election-

Were written by few hand writers and not by the designated presiding officers ward Returning officers and the Returning officers at the Local Governments In all the polling units, wards collation and Local governments Collation centre.

The petitioner will before or at trial move this Honourable Tribunal for an order for forensic analysis to be conducted on the result forms. Thus, by virtue of the above serious averments, the Appellant had a duty to produce the said contested result forms and a forensic analysis or report by a single expert to prove these far reaching allegations. This is so because the 1st Respondents declaration and return, as having won the election by the majority of votes cast at the said election, was predicated squarely on the election result forms inquestion.

Its instructive that the combined effect of paragraphs 20, 21, 31 (a) and 31 (b) of the petition is that the 1st Respondent was falsely declared and returned by INEC as having won the election inquestion.

Thus, the allegations as contained in the said paragraphs are criminal by nature and punishable under section 130 (5) of the Electoral Act 2006 (supra) which provides thus:

130. 5. Any returning officer or collaboration officer who delivers or causes to be delivered a false certificate of return knowing same to be false to the commission or state Independent Electoral Commission, commits an offence and is liable on conviction to a maximum imprisonment for 3 years with out option of fine.

Also by virtue of the provisions of section 138 (1) of the Evidence Act, the standard of proof of the said allegation is that of proof beyond reasonable doubt, See NWOBODO VS ONOH (1984) 1 SCNLR 1; OMOBORIOWO VS AJASIN(1984) 1 SCNLR 108; AYOGU VS NNAMANI (2006) 8 NWLR (part 981) 160 at 182; BUHARI VS OBASANJO (2005) 13 NWLR (part 941) 1 at 209; HASHIDU VS GOJE (2003) 15 NWLR (part 843) 352 at 386, respectively,

Having regard to the foregoing postulations, I have no hesitation whatsoever in answering issues 1, 2 and 3 of the Appellant each in the affirmative, and resolve same in favour of the Respondent.

ISSUES 4 & 5:

It is pertinent that issue 4 raises the question of whether the lower tribunal was right when it held that the appellant has failed to prove that the 1st Respondent was not duly elected by the majority of votes cast at the April 14, 2007 election for the Governorship in Enugu State, Issue 5 on other hand, raises the question of whether the 1st Respondent had complied with the mandatory provision of paragraph 15 of the First Schedule to the Electoral Act, 2006, and the effect of the noncompliance therewith. The two issues were said to have been distilled from Grounds III and XIII of the Grounds of Appeal, respectively. The Appellants counsel deemed it fit to argue both issues together, allegedly as an alternative to his argument on issues 1, 2 and 3, The learned counsel referred to the holdings of the lower tribunal at pages 664 and 665 of the record, contending that the findings therein to the effect that the Appellant offered no evidence in respect of paragraphs 31(a) and 31(b) of the petition, and that the evidence of PW1 and PW2 was a repetition of all the other paragraphs thereof were manifestly contradictory. It was argued that having found that the Appellant had offered evidence in respect of those other paragraphs relating to the invalidity of the 1st Respondents votes, the lower tribunal was under a legal obligation to have weighed the evidence tendered by the Appellant against Respondents’ evidence on an imaginary scale of justice before arriving at the conclusion that the 1st Respondent was not elected by majority of votes cast at the election. The learned counsel cited and relied on the notorious case of MOGAJI v. ODOFIN(1978) 3 SC 91 for the above proposition,

It was further argued that the lower tribunal failed to consider the pleadings of the parties to first determine whether the replies filed by the 1st Respondent complied with paragraph 15 of the First Schedule to the Electoral Act, 2006, before deciding the matter. According to the learned counsel, it is the law, that filing a list of objections by the 1st Respondent in compliance with paragraph 15 of the First Schedule to the Electoral Act, 2006 (supra) is only applicable where issue of invalidity of votes arises from the pleadings, See AGBALLAH VS CHIMAROKE NNAMANI & ORS. Appeal No. CA/E/EPT/26/2004, dated 18/11/04; OKAFOR VITALIS CHUKWUMA v. SAMUEL ANYAKORA & ORS. (2006) All FWLR (part 203) 121 at 147.

It was finally submitted that the provisions of paragraph 15 of the First Schedule (supra) are mandatory, as a result the evidence of the Appellant stands unchallenged and therefore established, contrary to the lower tribunal’s findings, The Court was urged upon to accordingly allow the appeal on these two issues.

The 1st Respondents issue No, 2 relates to Grounds III XV and XVI of the Grounds of Appeal. Thus, the issue to some extent relates to the Appellants issue No.4. Issue No, 3 of the 1st Respondent was stated to have been predicated on Grounds IV and XIII of the Grounds of Appeal and thus relates to issue No, 5 of the Appellant, In a nutshell, the submission of the 1st Respondents counsel is to the effect, inter alia, that the main bulk of the Appellants complaint is that the 1st Respondent was not duly elected by a majority of lawful votes cast at the election, and that it was the Appellant, rather than the 1st Respondent, who scored a majority of lawful votes, See paragraph 32 of the petition vis- a – vis section 145(1)(c)of the Electoral Act, (supra).

It was submitted that it is trite law, that the burden of disproving accuracy of election results rests on the petitioner. See MOGHALU v. NGIGE (2005) 4 NWLR (part 914) 1 at 36; NWOBODO VS ONOH (1984) 1 SCNLR 1 at 34; ATIKPEKPE VS JOE (1999) 6 NWLR (part 607) 428; SABIYAVS TUKUR 1083 NSCC 5561, respectively.

The learned counsel alluded to the evidence of PW1under cross-examination by Chief (Mrs.) Offiah, SAN, at pages 597 – 605 to the effect that the evidence of the PW1 portrays a questionable veracity “and that the PW1 was not a witness of truth,” The court was also referred to the evidence of the Respondents’ witnesses at pages 633 – 678 of the records, Reference was equally made to the depositions on oaths of Prince Emeka Okoh, Honourable Ezeora Umezulike Lazarus, Uroko Loretto Ngozi, the Electoral officer, Nkanu East Local Government Area contained in Volume II of the records, regarding the alleged manifest inconsistencies in the result sheets, According to the learned counsel, the Appellant had failed to produce the second set of result forms EC8A’s in evidence so as to enable the lower tribunal to compare the two sets of results as required by law, It was further submitted that –

As a mark of good faith the 1st Respondent through RW1 produced and sought to tender the certified true copies of polling booth results (Form EC8A’s) by which the 1st Respondent was declared winner which said results were pleaded in paragraph 33 of the 1st Respondent’s Reply.

Surprisingly, the petitioners through his counsel heatedly objected to the reception of the result forms in evidence even when the same would have aided the petitioner in discharging the burden of producing two sets of results and which would have afforded the tribunal an opportunity to compare the two sets of results and determine which one is correct. The documents were tendered and marked rejected. See page 19 of the 1st Respondent’s brief.

It was thus argued, that it is clear from the above (highlight) that the Appellant had woefully failed in his duty to put forward credible evidence to sustain the claims made by him, and to discharge the onus of proof placed on him by law, See section 136 of the Evidence Act; AREVSADISA (1967) ANLR 158 at 161 – 162; MAXIMUM INSURANCE CO. LTD.VS OWONIYI (1994) 3 NWLR (part 331) 178 at 192.

It was further argued that the Appellants objection to the admission of certified true copies of form EC8A’s tendered by RW1 is a clear evidence that if it were produced, it would have been unfavourable to the petitioner’s case, See section 149 (d) of the Evidence Act (supra).

The 1st Respondent equally maintained that he has complied with the provisions of paragraph 12 (2) of the First Schedule to the Electoral Act, 2006 by the averment thereof in paragraph 4 of the Reply to the petition (paragraph 4), wherein he stated that he obtained the majority of lawful votes cast at the election, That, it is the position of the law, that pleadings are not considered in isolation, but the general drift of the defence or counter-affidavit are considered historically as well. See GEORGE VS DOMINION FLOUR MILLS LTD. (1963) 1 ALL NLR 7; A – G; ANAMBRA STATE VS ONUSELOGU ENT. LTD (1987) 4 NWLR (part 66) 547.

It was contended that the law presumes the regularity of any judicial or official act under Section 150(1) of the Evidence Act (2006).

That, where the petitioner challenges the declaration made by INEC, the onus lies on him to prove that the results are not genuine. See BUHARI VS OBASANJO (2005) 13 NWLR (part 941) 1 at 253.We have been urged to accordingly uphold the judgment of the trial court on the above argument.

The 2nd – 3238th Respondents’ issue NO.3 was stated to have been predicated on grounds 3. 4. 5 and 16 of the Grounds of Appeal. Thus, the said issue, to some extent, relates to issues 4 and 5 under discussion.

The submission of the learned counsel is to the effect, that paragraphs 20 and 21 of the petition imply that a false return and/or declaration was made by INEC officials in favour of the 1st Respondent. which is an offence punishable under section 130 (5) of the Electoral Act (supra).The provision of section 138(1)of the Evidence Act was cited and relied upon to the effect, that where an allegation of the commission of a crime is in issue, the proof must be beyond

reasonable doubt. See NWOBODO VS ONOH (1984) 1 SCNLR 1; OMOBORIOWO VS AJASIN (1984) 1 SCNLR 108; AYOGU VS NNAMANI (2006) 8 NWLR (part 981) 160 at 182; BUHARI VS OBASANJO (2005) 13 NWLR (part 941) 1 at 209; HASHIDU VS GOJE (2003) 15 NWLR (part 843) 352 at 386.

It was thus argued, that since the Appellant did not call even one witness from the field, he could not be said to have proved this allegation in accordance with the law. We were urged to accordingly hold that the Appellant has not proved that he was duly elected in accordance with the law.

It is trite, that one of the far reaching principles of the law of evidence is that which relates to the burden of proof. As a general rule, any party that desires a court to give judgment in favour thereof regarding any legal right or liability dependent on the existence of facts asserted by him, must prove that those facts do actually exist. Thus,invariably, the burden of proof in a case or proceeding lies squarely on that person who ordinarily would fail if no evidence at all was given on either side. See sections 135 and 136 of the Evidence Act (supra).

The word ‘proof as a noun, denotes the establishment or refutation of an alleged fact by evidence; the evidence that determines the judgment of a court. See BLACK’S LAW DICTIONARY 7TH EDITION (U.S. West Publishing Group) 2004 at 1231. In the same vein, the term ‘standard of proof denotes the degree or level of proof in a specific case, such as beyond a reasonable doubt or by a preponderance of the evidence. See BLACK’S LAW DICTIONARY 7TH EDITION published West Group Publishing Company Ltd. at pages 1231 and 1413, respectively. The term ‘proof has been judicially held to mean a process by which the existence of facts is duly established or disproved to the ultimate satisfaction of the court or tribunal. See AWUSE VS ODILI & ORS. (1999) ALL FWLR (part 261) 248; OLUFOSOYE VS FAKOREE (1993) 1 NWLR (part 20) 66.

It is a fundamental and trite principle of law, that in election Petitions, the burden lies upon the party that asserts to adduce credible evidence in proof of that assertion. See AWUSE VS ODILI (supra). In the instant case, the burden undoubtedly lies squarely upon the Appellant to establish the allegations or averments contained in the petition thereof. It was the case for the Appellant that having scored the majority of votes cast at the said elections he, and not the 1st Respondent, ought to have been declared and returned as the winner thereof, The petitioner’s assertions most especially in paragraphs 7, 18, 19, 20, 21, and 24 of the petition, are to the following effect:

7. Your petitioner avers that the votes as announced by INEC in which it purportedly credited to the 1st Respondent 811,798 votes and to the Petitioner 15,287 votes were not the correct figures or correctly added number of lawful votes cast at the election of April 14, 2007.
8. Your petitioner avers that the presiding officers in each polling unit at close of poll counted the votes at the polling stations, entered the votes scored by each candidate in Form EC8A, signed and stamped the forms which same was countersigned by agents and after the results were announced at the polling station, a carbon copy was issued to the petitioners agents. The petitioner shall at trial rely on the carbon copies of the polling booth result issued by the presiding officers to establish that the petitioner and not the 1st respondent won the election of April 14, 2007
9. Your petitioner avers that when the respondents notice that from the polling unit result that the petitioner won the governorship election, they proceeded to abort the collation at the ward and

local government, such that the petitioner’s agents had to wait in vain for the collation which never was to be. The petitioners party agents had to sum up the figures form the polling unit results From EC8A, received by their agents from INEC presiding officers.

20. Your petitioner avers that from the results issued by INEC and summed up by the petitioner’s agents it was crystal clear that the petitioner won the election by obtaining the highest number of valid votes cast at the election and also obtained one quarters of the votes cast in over two – thirds of all the Local Government Areas in Enugu State. While the 1st Respondent obtained 59,892 votes, the petitioner received 450,083 votes to win the election.
21. Your petitioner avers that 811,798 votes credited to the 1st Respondent by INEC are invalid votes and the 15,287 votes credited to the petitioner were also wrong.
22. Your petitioner avers that the analysis of the polling booth result is as contained in “Schedule A” flied with this petition.

There is no doubt that the above allegations are weighty and very serious indeed. The implication of the allegations is that the 811,798 votes credited to the 1st Respondent and the 15,287 votes credited to the Appellant were false and accordingly manipulated in favour of the 1st Respondent. Thus, the declaration and return of the 1st Respondent as the winner of the elections in question by INEC officials had allegedly amounted to a false declaration within the contemplation of the provision of section 130 (5) of the Electoral Act (supra), which is to the following effect:

130. (4) Any person who announces or publishes on election result knowing some to be false or which is at variance with the signed certificate of return commits on offence and is liable on conviction to 36 months Imprisonment.

(5) Any returning officer or collation officer who delivers or causes to be delivered a false certificate of return knowing same to be false to the Commission or State Independent Electoral Commission, commits an offence and is liable on conviction to a maximum imprisonment for 3 years without on option of fine.

It is a well settled doctrine, that where an allegation of the Commission of a crime is made in any proceedings, whether civil or criminal, the standard of proof required of the party making the allegation is that of proof beyond reasonable doubt. See Section 138(1)of the Evidence Act CAP E14, Laws of the Federation of Nigeria, 2004, provides thus:

“138(1) If the Commission of a crime by a party to any proceeding is directly In Issue in any proceeding civil or criminal, It must be proved beyond reasonable doubt. ”

Thus, the position of the law on the issue is certainly not in doubt.

Manipulation, alteration, forging, or falsification of election result is characteristically a criminal offence, and the standard proof required is high. That is to say, it is a proof beyond reasonable doubt, See BUHARI VS OBASANJO (2005) 13 NWLR (part 941) 1 at 209. See also NWOBODO VS ONOH (1984) 1 SCNLR 1; OMOBOROWO VS AJASIN (1984) 1 SCNLR 108; AYOGU VS NNAMANI (2006) 8 NWLR (part 981) 160 at 182, respectively.

It has been judicially acknowledged, that the term “proof beyond reasonable doubt’ does not necessarily connote proof beyond any shadow of doubt. Otherwise, the essence and fundamental objective of the law in preserving the sanctity and security of the society would be defeated if it allows fanciful possibilities to deflect the course of justice.

See MILLER VS MINISTER OF PENSIONS (1947) 2 ALL ER 372, wherein Lord Denning, MR (of remarkable and blessed memory) held, inter alia, thus:

If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.

It must be reiterated for the avoidance of doubt, that the fundamental principle of proof beyond reasonable doubt, as enunciated above, has become an integral part of the laws governing election petition proceedings in this country. See BUHARI VS OBASANJO (2005) 13 FWLR (part 273) 1 at 199; JANG VS DARIYE (2004) FWLR (part 194) 412 at 432 – 433 and AZIKE VS ARARUME & ORS. (2005) ALL FWLR (part 263) 740 at 754.

In essence, it is a well settled general principle, that the standard of proof in election matters bordering on malpractice or irregularity or misconduct depends upon the nature and circumstances of the allegation in question. Thus, where the allegation is merely regarding some non-criminal wrong doing, the proof thereof would be based on the preponderance of evidence. However as alluded to above, where the allegation borders on, or has the semblance of criminality, as in the instant case, then the standard is that of proof beyond reasonable doubt. See BUHARI VS OBASANJO (supra) at 209, et al.

It is pertinent, that the Appellants learned counsel has referred us to the findings of the lower tribunal at pages 664 and 665 of the Record, wherein it stated thus:

The relevant averment in the petition in respect of the invalidity of the 1st Respondents votes are contained at paragraph (sic) 9,10,15,16,21,27,28, 29, 31, 31(a) and 31(b) thereof…

The question is, have all these allegations as to invalidity of the 1st Respondent’s votes been proved by evidence adduced by the petitioner?

The answer to that question could be found at page 666 lines 1 – 10 of the Record, wherein the lower tribunal held thus:

At both paragraph 31 of the petitions (sic)and paragraph 31 of PW1’s written statement on oath, the petitioner undertook to establish at trial that all the INEC presiding officer (sic) were card carrying members of the People Democratic Party. Did he actually prove this allegation? The obvious answer is in the negative. In fact, the petitioner adduces no evidence to prove that any INEC presiding officer in the Governorship election of 14/4/2007 and 28/4/2007 was a card carrying member of the People Democratic Party. The petitioner also failed to adduce evidence to prove multiple thumb printing of ballot papers as alleged at paragraph 31 (a) of the petition.

Having critically, albeit dispassionately, perused the entire records of the lower tribunal vis- a – vis the submissions of the learned counsel and various authorities referred to therein, I can not agree more with the above findings of the lower tribunal. Its become so obvious, that the Appellant has failed to adduce cogent and reliable evidence to establish or prove the election result Forms EC8A, EC8B EC8C and EC8D in INEC’s possession were actually written by the few hand writers.

and not by the designated presiding officers, Ward Returning officers and the Returning officers at the Local Governments in all the polling units, wards collation and Local Governments collation centres, as extensively pleaded in paragraphs 31 (a) and 31 (b) of the petition. As alluded to above, the allegations inquestion were undoubtedly criminal, thus the standard of proof thereof is that of proof beyond reasonable doubt. See Section 138(1) of the Evidence Act (supra); BUHARI VS OBASANJO (supra).

Its unfortunate for the Appellant to have made so much heavy weather of the issue of the alleged abandonment of paragraphs 31(a) and 31(b) of the petition. Having failed to adduce a credible evidence to support his allegations regarding the said paragraphs of the petition, it has become rather preposterous, to say the least, for the Appellant to now complain that the lower tribunal was wrong in alluding to the averments inquestion. It is a fundamental and trite principle that in dealing with pleadings, the court has an onerous duty to consider all the paragraphs thereof together and not merely a few paragraphs in isolation. This is so because, it is the totality of the pleadings of the parties on both sides of the divide that usually determines the case, one way or the other. Thus, it will amount to an injustice for a court to limit its focus on only a few paragraphs of the pleadings in coming to a conclusion in the case before it. See NGIGE VS OBI (2006) 14 NWLR (part 989) 1 at 42. See also GEORGE VS DOMINION FLOUR Mill LTD. (1963) 1 All NLR 71. In the instant case, its rather evident, that the lower tribunal had rightly, in my view, considered the entirety of the pleadings of the parties before coming to the conclusion, as it did, that the Appellant failed to prove his case. Apart from the alleged abandoning of paragraphs 31(a) and 31(b) of the petition, the Appellant has failed to prove the other allegations regarding the alleged invalidity of the 811,798 votes credited to the 1st Respondent. It was the Appellants pleadings that the votes credited to the 1st Respondent were invalid votes, on the ground that the said votes had exceeded the number of the qualified voters registered and the number of the accredited voters in each polling unit. It was also alleged by the Appellant, that the votes accredited to the 1st Respondent were in excess of the number of ballot papers issued by INEC to Enugu State for the April 14, 2007 election inquestion; that the voters turn out was low; that the 1st Respondents declaration and return was also invalid on the ground that it was a product of two elections in contravention of the 1999 Constitution.

However, its evident from the records, that the Appellant did not deem it fit to adduce cogent and reliable evidence to prove those gravious and far reaching allegations inquestion. Undoubtedly, for the Appellant to have succeeded in his claim, he needed to have called the alleged single expert “to explain the similarity of the hand writings on all the results found in INEC’s possession of which INEC issued Certified True Copies to the Petitioner.” It was submitted by the Appellants learned counsel that no evidence was led on the two paragraphs of the petition inquestion, as such same should be deemed as having been abandoned, as they were no longer required to prove the allegations beyond reasonable doubt, but rather on the balance of probability. Nevertheless, an extensive appraisal or community reading of the entirety of the petition, even without paragraphs 31 (a) and 31(b) inquestion, would unequivocally establish that the gravamen of the Appellants allegation borders on wrongful or false declaration and return of the 1st Respondent. Thus, the standard of proof required-is that of proof beyond reasonable doubt, within the preview or contemplation of the provisions of section 138(1) of the Evidence (supra).

In addition to the vexed issue of the standard of proof required, the position of the law is that, where the allegation in which figures or scores of candidates that contested an election are in issue or being challenged, the evidence to be led in support of such allegations should come directly from the actual officers who were on the field where the votes were counted, See BUHARI VS OBASANJO (2005) 13 NWLR(part 941) 1 at 135, wherein the- Supreme Court held per AKINTAN, JSC, thus:

On the question of whether the evidence led in support is sufficient to warrant the decision reached on the point by the court below, it is necessary to examine the said evidence. The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who were on the field where the votes were counted. See also HASHIDU VS GOJE(2003) 15 NWLR(part 843) 353 at 386. Curiously enough however, the Appellant rather than taking the trouble to call the relevant INEC Officers that were in the filed and thus took an active part in conducting the elections in question, to give evidence, he chose, for reasons best known there to, to tender the election result forms, exhibits P1- P2548 vide the PW1. What is more, most surprisingly, none of the Appellants party agents that allegedly represented the Appellant at, signed and collected the said exhibits P1 – P2548 from the numerous polling units, was called to testify in the petition, A fortiori, the failure to call the party agents that represented and served as an eagle eye to the Appellant at the various polling units to give evidence was fatal to the petition. It should be reiterated that on 19/9/07, when the PW1, Solomon Achikanu, testified and adopted the written submission thereof, an attempt by Mike Okoye Esq. to have exhibits P1- P2548 (carbon copies of palling units results)admitted in evidence was vehemently objected to by Chief (Mrs.) Offiah SAN, After what appears in the record to be a heated argument, the lower tribunal reserved ruling on the vexed issue of admissibility of the said exhibits. That ruling was indeed delivered on 04/10/07, wherein the lower tribunal came to the following conclusion:

“On the whole all the objections are overruled. The documents totaling 2,548 sheets are hereby admitted as bundled to us, and collectively marked as Exhibit PW1.” See page 594 of the Record. There is every reason to believe that the lower tribunal had painstakingly alluded to the evidence of the PW1& PW2, the exhibits inquestion i.e. -Exhibit P1 (Exhibits P1 – P2,548), as well as the evidence adduced by, the Respondents’ 18 witnesses (Rw1 – Rw18), The totality of the evidence of 1st Respondents witness (RW1) and those of the 2nd 3238th Respondents (RW2- RW18) is to effect that exhibits P1 – P2,558 inquestion were different from the genuine forms EC8A’s used at the election, Thats to say, they were not the same as the original result sheets allegedly in the possession of INEC. The RW1, Dr. (Mrs.) Anthonia Ekwo, i.e, the Logistics Officer INEC Enugu in particular, had insisted in her evidence under cross-examination by the Appellants counsel that the original copies of the said exhibits P1 – P2548 were not in her possession,

What is more, an attempt was made by the 1st Respondent to tender the certified true copies of polling booth results (Form EC8A’s) by which the 1st Respondent was declared and returned as the winner of the elections in question, as pleaded in paragraph 33 of the 1st Respondents Reply to the petition. Most surprisingly, however, the Appellants learned counsel, for reasons best known thereto, vehemently objected to the admissibility thereof. They were rejected by the lower tribunal and so accordingly marked as such. It is evident that in paragraphs 21, 22 and 24 of the 1st Respondents reply to the petition, the 1st Respondent has vehemently denied and objected to the whole votes the Appellant allegedly scored. The 1stRespondent has in the said paragraphs described the Appellants allegation not only as spurious and false, but that the alleged votes did not emanate from the authentic election results issued by INEC.

It thus goes without saying, that the Appellants vehement objection to the admission of the duly certified true copies of the election results forms-EC8 A’s tendered vide the RW1 the INEC’s Logistics Officer Enugu State is undoubtedly a clear and unequivocal evidence that if produced, they would have been unfavourable to the Appellant.

See Section 149 (d) of the Evidence Act (supra) thus:

149. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, hence and public and private business in their relation to the facts of the particular case, and in particular the court may presume-

(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who with holds it.

Its trite that withholding of evidence, within the contemplation of the provisions of section 149 (d) of the Evidence Act (supra), is an act or an instance of obstructing by stifling or suppressing evidence knowing fully well that it is being sought or needed in an official investigation or a judicial proceeding, as in the instant case. See BLACK’S LAW DICTIONARY, at page 1505.

Thus having regard to the above, postulations, there is every reason for this court to hold that the answer to both issues 4 and 5 ought to be in the affirmative, and they are hereby resolved in favour of the Respondents.

ISSUES 6 & 7:

Issues 6 and 7 were said to have been predicated on grounds II and XVI of the Grounds of Appeal respectively. Issues 6 raises the question of whether the lower tribunal was right when it failed to consider the paragraphs of the petition that relate to the issue for determination. Issue NO.7 on the other hand, raises the question of whether the lower tribunal’s decision was not perverse for having allegedly failed to evaluate and place the evidence called by the parties on an imaginary scale of justice before coming to the conclusion that the petitioner had not established the case thereof. The two issues were both argued together by the Appellants learned counsel. His argument on both issues could be found at pages 19 -37.

Reference was made to paragraph 32 of the petition regarding the relief sought in the petition. According to the learned counsel the ground of the claim therein is as prescribed in paragraph 145 (1)(c) of the Electoral Act, 2006 (supra)which provides thus:

145.- (1) an election may be questioned on any of the following grounds,

(a) ……………………………….

(b) ……………………………….

(c) that the respondent was not duly elected by majority of lawful votes at the election.

(d) ………………………………..

It was also submitted that the relief sought in the petition is governed by section 147 (2) of the Electoral Act (supra),which provides thus:

147. (1) ……………………………..

(2) if the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of lawful votes cast at the election, the Election Tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.

An allusion was also made to section 179 (2) of the Constitution, paragraphs 1, 7, 17, 18, 20, 22, 23 and 25 of the petition which the learned counsel argued were necessary for the lower tribunal’s consideration. The learned counsel equally copiously referred to the written evidence of oath of the two witnesses(PW1 & PW2) called by the Appellant vis – a – vis the written depositions of the Respondents’ witnesses RW1- RW18, respectively. It was accordingly argued by the learned counsel, that the RW1 swore to two different witness statements listed as No. 30 and NO.42 on the 1st Respondents list of witnesses filed with the reply thereof. The RW1 was said to have admitted under cross-examination that the filing of the statements in question was “a compilation error.” That, no effort was made to correct that error According to the learned counsel, the two statements are an abuse of process of court and thus liable to be struck out for being incompetent.

See BUHARI VS INEC (supra).

It was likewise argued, that the statements of RW2- RW18 are not written statements on oath as they are un-sworn statements, as such no evidence could be led through them. That, there was no oral examination of witnesses in evidence in chief, thus the trial was basically conducted by the use of documentary evidence. That, under the Practice Direction, 2007 written evidence on oath as oral examination of witnesses was prohibited. It was contended that this court is in the same position as the lower tribunal in the assessment of evidence before it.

It was like wise argued that in the present case, the lower tribunal failed to consider the relevant paragraphs of the petition and also failed to evaluate the evidence presented by the parties but proceeded to rely heavily on the Respondents’ evidence. That, it also failed to test the quality of the Respondents’ evidence before utilizing same, thereby resulting in falling short of what a good judgment of a superior court of law should contain. See OJOGBUO & ORS VS NNUBIA & ORS (1972) 1 ALL NLR 226; EZEOKE VS NWAGBO (1988) 1 NWLR (part 72) 616; MOGAJI VS ODOFIN (1978) 3 SC 91; OMOBOROWO v. AJASIN (1984) 1 SC.

Relying on MUSTAPHA VS BULAMA (1999) 3 NWLR (part 595) 376 at 383 – 384 and section 16 of the Court of Appeal Act, the learned counsel urged upon this court to thus interfere with the findings of fact of the lower tribunal, examine the pleadings and apply the oral and documentary evidence, which the lower tribunal has failed to do, and accordingly allow the appeal.

The 1st Respondents learned senior counsel has addressed the argument of the Appellants learned counsel an Issue 6, in issues 2 and 3 thereof which have already been referred to above. However, argument proffered in issue 7 has not been addressed by the 1st Respondents learned counsel. It was submitted, inter alia, that from the paragraphs of the petition, especially paragraphs 4, 6, 7, 8, 9, 10 and 32, it is obvious that the ground upon which the petition challenges the election of the 1st Respondent is as prescribed in section 145 (I)(c) of the Electoral Act (supra), to the effect that the latter was not duly elected by majority of lawful votes at the election. That, its trite that the burden of disproving the accuracy of result of election rests on the petitioner. That, the Appellant as thus required to plead and led evidence in respect of two sets of results, one he alleges is wrong and the one he alleges to be correct, so as to enable the tribunal to compare. See MOGHALU VS NGIGE (supra) at 36; NWOBODO VS ONOH (supra) at 34; ATIKPEKPE VS JOE (supra) 428; SABIYA VS TUKUR (supra) 556. It was assumed that the evidence of PW1 portrays a questionable veracity and not a witness of truth. That, the PW1 under cross-examination by the 1st Respondents senior counsel seemed to have had a temporal memory loss on all issues relating to the elections of 14/4/08; that all the information were indirect and could not have therefore been relied upon by the court to return the Appellant. That, despite the fact that there was no evidence in support of the petition, the Respondents led evidence in defence and called witnesses including the electoral officers for the 17 Local Governments as well as the INEC’s Enugu Logistics officer. That the Respondents’ effort to produce and tender the election results in possession of INEC was objected to by the Appellants counsel. See section 149 (d) of the Evidence Act. The 2nd – 3238th Respondents’ argument on issue NO.3 to some extent, relates to issues 3, 6, 7 and 13 of the Appellant.

It was submitted, inter alia, that the summary of the Appellants case is that the Appellant and not the 1st Respondent was the winner of the election inquestion. It was argued that by virtue of paragraphs 20 and 21 of the petition, the averments therein imply that a false return and/or declaration was made by INEC in favour of the 1st Respondent which is an offence under section 130 (1) of the Evidence Act. Thus, the standard of proof is that of beyond reasonable doubt. See NWOBODO VS ONOH (supra); BUHARI VS OBASANJO (supra) et al. That, in this case, the entire reply of the 2nd – 3238th Respondents, especially paragraphs 3, 11, 14 and 15 thereof is to the effect that all the averments in the petition have been denied. That, the quality of the evidence prescribed in BUHAR VS OBASANJO (supra) and HASHIDU VS GOJE (supra) has not been abolished by the Election Tribunal and Court Practice Directions 2007 as contended by the Appellants counsel. See UNIVERSITY OF LAGOS & ANOR VS AIGORO (1984) 11 SC 152 at 191. That, the Appellants counsel elected to call a total of twenty witnesses but ended up calling only two. As such, he can not now complain that he was not allowed to call all the other witnesses. The court was urged to accordingly hold that the Appellant has not proved that he was duly elected in accordance with the law.

I have critically considered the submissions of the learned counsel on the said issues 6 and 7. From the out set, I think it should be reiterated that having determined issues 1 – 5 in favour of the Appellant, it would ordinarily amount to an academic exercise to proceed to determine the rest of the Appellant’s issues (issues 6 – 14). However, the above observation, notwithstanding, having accorded an ample regard upon the records of the proceedings of the lower tribunal, I am unable to appreciate, let alone uphold, the contention of the learned counsel to the Appellant that the lower tribunal had failed to consider the paragraphs of the petition relating to the issue for determination. As alluded to above, the judgment of the lower tribunal inquestion is contained at pages 659 – 674 of volume one of the records of proceedings thereof. It is evident that at page 664 of the record, the lower tribunal copiously reproduced the two issues formulated by the Appellant thus:

(1) Whether the petitioner has proved that the 1st Respondent was not duly elected by majority of valid votes cast at the Election of 14/4/2007 for Governorship in Enugu State.

(2) Whether in fact the petition the petitioner obtained a majority of lawful votes of the electorate In Enugu State and fulfilled the conditions in the Constitution and cogent to hove been returned.

The lower tribunal proceeded to adopt the said two issues thus:

Therefore, we adopt the two issue (sic) formulated by the petitioner as the Issues for determination in this petition. We will treat each issue separately, beginning with the first issue… The relevant averment in the petition in paragraphs 9, 10, 15, 16, 21, 27, 28, 29, 31 31(a) and 31 (b) thereof. As pleaded by the petitioner, the votes credited to the 1st

Respondent were Invalid votes for the reason that they exceeded the registered qualified voters and the number of accredited voters in each polling unit and constituently….

The petitioner also averred that the 1st Respondent enjoyed undue advantage over him In the gubernatorial elections in Enugu State as all the INEC presiding officers were card carrying members of the Peoples Democratic Party…. As it would appear at pages 665 of the records, the lower tribunal then posed the following question:

The question is have all these allegations as to invalidity of the 1st respondent’s votes been proved by the evidence adduced by the petitioner.

Thereafter, the lower tribunal proceeded to consider the evidence of PW1 and PW2, the written statements on oath thereof vis-a-vis the averments contained in the petition itself, especially paragraphs 9, 10, 15, 16, 21, 27, 28, 29 and 31 31(a) and 31(b), The finding of the lower tribunal on the issue was to the effect that neither the PW1nor the PW2 said any thing on paragraphs 31(a) and 31(b) of the petition and that the allegations in paragraphs 31(a) and 31(b) of the petition being criminal in nature must be proved beyond reasonable doubt. See NWOBODO VS ONOH (supra). It must also be stressed that the lower tribunal had painstakingly referred to the various paragraphs of the pleadings, the written statement on oaths and various authorities on the issue before arriving at the conclusion thus:

We agree with Ibik SAN at page 41 of his final address that the burden of proof is on the petitioner since the petitioner has failed to prove his petition, it is not even necessary to consider the Respondent’s case. The petitioner has to succeed on the strength of his own case and not on the weakness of the defence. See AWUSE VS ODILI (2005) ALL FWLR (PT.261) 248 AT 313.

Finally, It is quite obvious that with the resolution of all the two issues for determination against the petition, this petition is bound to collapse. Accordingly this petition fails and it is hereby dismissed.

Costs of N20,000.00 is awarded to each set of Respondents.

I think, I can not concede more to the above findings and conclusion of the lower tribunal. Having regard to the record and the painstakingly articulated findings of the lower tribunal, there is every reason for this court to hold that the Appellants allegation that the lower tribunal failed to consider the paragraphs of the petition relating to the issues for determination is, to say the least, rather a smokescreen and utterly preposterous.

It has long been settled, that the allegation of falsification of election results is characteristically criminal, of which the standard of proof is that of beyond reasonable doubt. Its also fundamental that to prove falsification of election results, there should be in existence at least two results, one of which could be stigmatised as genuine and the other false. See SABIYA VS TUKUR (1983) NSC C559 at 560; (1983) 11 SC 109 per Irikefe, JSC (of blessed memory as he then was); OJO VS ESOHE & ORS (1999) 5 NWLR (part 603) 444 at 452 – 453 per Salami, JCA; NWOBODO VS ONOH (supra) at 34; EBOH VS OGUJIOFOR (1999) 3 NWLR (part 595) 419 at 423 – 424; BUHARI VS OBASANJO(supra) respectively.

In view of the above high light, it behoves on this court to hold that the lower tribunal had not in any way abdicated its paramount duty of considering the entirety of the petition especially the paragraphs relating to the issues formulated by the Appellant for determination which were adopted by the lower tribunal. Thus, both Issues 6 & 7 ought to be and are both hereby resolved in favour of the Respondents.

ISSUES 8, 9 & 10

Issue NO.8 raises the question of whether from the circumstances of this case the lower tribunal was right in holding that the petitioners failure to call the actual agents who worked for the Appellant in the field is very fatal to his case. The issue was distilled from ground V of the Grounds of Appeal. Whereas issue No.9 raises the question of whether the lower tribunal was right when it held that the evidence of PW1 in relation to Exhibits Pl – P2558 is hearsay and ought not have been admitted through the PW1, and that they deserve no probative value even if they were not expunged from the records. The issue was distilled from ground VI of the Grounds of Appeal. Issue No. 10 on the other hand, raises the question of whether the Respondents witnesses had proved that Exhibits P1 – P2558 were not carbon copies of the original documents in possession of INEC. The Issue was distilled form Grounds VII and Xiv of the Grounds of Appeal. References were made by the Appellants counsel to various pages of the record of proceedings regarding the findings of the lower tribunal and various authorities, thereby contending that the lower tribunal’ findings that the failure to call the 2558 agents that worked for the Appellant in the field is fatal to the Appellants case was perverse, unjust, contradictory and can not support the order earlier made by the same lower tribunal stream-lining the number of witnesses thereof. The case of OKOLOAGU VS EZE & ORS NAGL.EPT/EN/31/2007 dated 11/12/2007 was cited as an instance in which the lower tribunal rightly applied the effect of its streamlining order. It was said that it would be a herculean task to expect the Appellant to call over 2558 witnesses to testify and to tender exhibits P1 – P2558, having regard to the special nature of election petition which issue generis and the need for expeditious trial thereof. It was also argued that the consideration by the lower tribunal on Exhibits P1 – P2558 being hearsay evidence was caught by the doctrine of issue estoppel, for having been already decided in its ruling of 04/10/07. See IKEN v. EFAMO (2000) 10 NWLR (part 720) 1 at 11, 12 & 15; CA/A/EPT/3/2007 ABUBAKAR VS YARADUA & 8 10 ORS judgment delivered on 26/2/2008.

According to the learned counsel, carbon copies of polling booth results are duplicate originals and are produced as original of the process and therefore admissible in evidence, See OMOBOROWO v. AJASIN (1984) 1 SCNLR 108; BUHARI VS INEC & 4 ORS CA/A/EP/2/2007 dated 26/2/2008; OKIKI VS JAGUN (2000) 5 NWLR (part 655) 19 at 26.

It was further argued that Exhibits P1- P2558 are admissible under section 151 of the Evidence Act and that the Respondents are prohibited from denying the truth contained therein. See MENAKIA VS MENAKA (1996) 9 NWLR (part 472) 256 at 294; NJOKU VS EKEOCHA (1972) ECSLR99; ODUA INVESTMENT COMPANY LTD. VS TALABI (1991) 1 NWLR (part 170) 761; UDE v. NWARA (1993) (part 278) 238.

The learned counsel has in the same vein cited and relied upon BELLO v. EWEKA (1981) ISC at 101 per Eso JSC at 118 and SEISMOGRAPH SERVICES (NIG.) LTD VS OGUEYUAFE (1976) 9 – 10 SC 135 at 146 as well as section 163 of the Electoral Act 2006 (supra), and contended further that the carbon copy of polling booth results issued and signed by the presiding officers and delivered to the representatives or agents of candidates are admissible as primary evidence under section 93 of the Evidence Act and under section 64 of the Electoral Act 2006. It was finally submitted that a cursory look at all exhibits P1- P2558 will show that while the 1st Respondent obtained 59,892 valid votes, the Appellant won the election having obtained 450,083 valid votes and one quarter of the votes cast in over two thirds of all the Local Government Areas in Enugu State.

The 1st Respondents issue No 4 relates to issues 8 & 9 which the 2nd – 3238th Respondents’ issue No. 4 equally relates to the issues inquestion, Both counsel are ad idem that its not the law that once a document is admitted then the court must act on it, See DALEK LTD v. OMPADEC (2007) 7 NWLR (part 1033) 402 at 441; ADEFARASIN v. DAYEKA(2007) 11 NWLR (part 1044) 89 at 115; BUHARI v. OBASANJO (supra).

It was argued that even if the said Exhibits P1 – P2558 were validly admitted in evidence they had been so discredited by the evidence of RW1 to RW 18 and under cross examination of the PW1 and PW2 (the Appellant) that no court or Tribunal can safely rely thereon. We were urged to hold that the Appellant has not proved that he was duly elected in accordance with the law. It is a trite and fundamental rule of law, that where the authority constitutionally charged with the duty of announcing the results of an election, in the instant case INEC (the 2nd Respondent), the said results so announced or declared are presumed to be correct, authentic and valid until the contrary is proved. However, the presumption is a rebuttable one. The onus of proving the incorrectness or falsity of the results so announced by the INEC or the invalidity of the votes credited to the 1st Respondent, rests squarely on the petitioner, in the instant case, the Appellant, See BUHARI VS OBASANJO (2002) 3 NWLR (part 941) 1 at 253.

The learned counsel has urged upon this court to hold that Exhibits P1 – P2558 were genuine and should be accorded a probative value on the ground that they had already been admitted by the lower tribunal. He also urged us to invoke the powers of the court under section 16 of the Court of Appeal Act (supra) accordingly. However, its rather the law that the fact that a document has been admitted, as in the instant case- exhibits P1 – P2558, does not necessarily mean that significant weight should be automatically attached thereto. The fundamental principle is that, in determining the weight, if any, to be attached to a document rendered admissible as evidence by the Evidence Act, regard must be had to all the circumstances from which any inference can reasonably be drawn regarding the accuracy or otherwise of the statement, especially regarding the question whether or not the document was made contemporaneously with the occurrence of existence of the facts stated, and whether or not the maker of the said statement had any incentive to conceal or misrepresent facts. See section 92 (1) of the Evidence Act (supra).

In essence therefore, the admissibly of a document and the evidential value ascribable thereto are not one and the same thing. That’s to say, the mere fact that Exhibits P1 – P2558 were admitted in evidence by the lower tribunal, does not ip so facto impose a duty on the said lower tribunal to automatically attach weight thereto with out a sufficient further proof. See ADEFARASIN VS DAYEKH (2007) NWLR (1044) 89 at 115 paragraph B; NWANKWO VS NWAKWO (1995) 5 NWLR (part 394) 153 at 171 paragraphs A-B.

In the instant case, it was rather obvious, that for any serious weight to be attached to Exhibits p 1 – P2558 inquestion, the Appellant ought to have pleaded and tendered two sets of election results, one of which could be stigmatised as genuine, and the other as false, See SABIYA v. TUKUR (supra) at 560; NWOBODO v. ONOH (supra) at 34; OJO VS ESOHE at ORS (supra) at 452 – 453, respectively.

The said exhibits P1 – P2558 were rejected by INEC vide the RW1 the INEC Enugu Logistics officer for having not been issued by the 2nd Respondent, thus joining issues with the Appellant. According to RW1 under cross examination by the Appellants counsel:

My job is to issue electoral material including result sheets. The result sheets are in book lets of 50 with original marked on tops. At the end of election top copy is returned to me. I have seen Exhibit P1 serves shown to me about 5 days ago. They are not the same thing with the originals in my custody. The originals of exhibit P1 series are not in my possession…

The stamp on the results that I saw was not the same as our own. Our own is smaller and sharper… See pages 624- 625 of the Record,

What’s more, none of the party agents that represented the Appellant in the field on the day of the election (14/4/2007 & 28/4/07), who ought to have signed and collected copies of the election results from the numerous polling units, was called by the Appellant to testify in support of the petition. Thus not surprisingly, the lower tribunal came to the conclusion, rightly in my view, at page 670 of the Record thus:

It is clear that in the light of the Supreme Court decision in BUHARI VS OBASANJOR (sic) (supra) evidence of PW1 in relation to Exhibits Pi -P2548 in hearsay, and those documents should not have been admitted through him.

Even if these documents are not exepunged from the records of this Tribunal they deserve no probative value at all. Their wrong admission appet the Respondent’s witnesses under cross-examination showed that these documents were not carbon copies of the original documents in the custody of the Independent National Electoral Commission. Refer particularly to the testimony of RW1 Dr. Anthonia Ekwo, the Logistic officer of INEC.

I have no hesitation whatsoever in upholding the above findings of the lower tribunal as representing the unequivocal, and true position of the law on the issue. It is indeed a well trite law, that the type of evidence which must be led in support of averments challenging figures or scores of candidates at an election ought to come directly from the officers that were actively in the field where the votes were counted and/or collated. See BUHARI VS OBASANJO (supra) where in the Supreme Court held per Akintan, JSC thus:

The evidence of adduced in support of allegations challenging the figures or scores of candidates at an election should come direct (sic) from the officers who were in the field where the votes were counted and/or collated.

Consequently, evidence from persons who received the figures or scores from officers collation of the votes are inadmissible because such is hearsay…

Thus, in view of the above highlight, any lingering doubt on the worthlessness or lacking in evidential value of the said Exhibits P1 – P2558 would have by now been laid to rest. In the circumstance, the inevitable answer to issues8 and 9 is in the affirmative. The two issues inquestion are hereby resolved in favour of the Respondents ISSUE NO. 11.

Issue NO.11 raises the question of who actually scored the majority of lawful votes cast at the election and satisfied the requirement of the Constitution. It was distilled from grounds XII and XV of the Grounds of Appeal. It is pertinent that issue 11 can not be divorced from the learned counsel’s argument on issues1 -10 above. Having already determined and resolved those issues in favour of the Respondents, it therefore goes without saying that the issue No.11 should naturally and most inevitably be resolved in favour of 1st Respondent,

The submission of the learned counsel to the Appellant was to the effect, that the lower tribunal had erred in law in failing to give effect to Exhibits P1 – P12558, thus occasioning a miscarriage of justice. That, the lower tribunal was under a legal duty to tabulate the figures contained in the said exhibits before coming to a conclusion as to who won the election, That, if it had done so, it would have seen that the Appellant, and not the 1st Respondent was the actual person that won the said election, As usual, references were made to the various paragraphs of the petition, especially paragraphs 22, 23, 24 25 and Schedule A of the petition, regarding the computed figures he allegedly scored in each of the words in the seventeen Local Government Areas of Enugu State. According to the learned counsel:

The summary of the results is reflected in Schedule ‘A’ filed with the petition which shows that he

the petitioner/Appellant, scored a total of 450, 083 valid votes and also obtained one-quarter of the votes cast in over two-thirds of all the Local Government Areas in Enugu State as against the total of 59892 valid votes scored by the 1st Respondent. See page 56 paragraph 4.164 of the Appellants brief. I think the above argument, with due respect to the learned counsel, is untenable and rather simplistic, to soy the least. The pertinent questions that ought to be posed at this point in time ore (i) why for goodness sake, did the Appellant abdicate his responsibility of calling the necessary witnesses especially his party agents that represented him at the polling units and the presiding officers that were in the field to testify on behalf thereof; (ii)why did he vehemently object to the admission of the sets of election results in the possession of INEC knowing fully well that failure to so admit the said results would be fatal to his case? In view of the plethora of authorities alluded to above, the answers to the above two fundamental questions may not, in my view, be for fetched. The answer to the second question was undoubtedly predicated on the fact that the Appellant knew quite well that if the election results in INEC’s possession were allowed by him to be so admitted as exhibits, they would have been unfavourable thereto. The answer to the first question could only come from no person other than the Appellant himself. That’s to say, he decided to dispense with the idea of calling the said vital witnesses because, as he said it was ” a herculean task” for him to do so. Contrary to the learned counsel’s contention that the number of the Appellants witnesses were streamlined”, it is rather evident that out of the twenty witnesses he under took to call, he was able to present only two i.e the PW1 and himself (as PW2), Thus, his allegation that his failure to call a sufficient number of witnesses was due to the streamlining of the number thereof by the lower tribunal is rather untenable.

It is the position of the low, as alluded to above, that whereas in the instant case, a petitioner challenges the declaration of election results made by the Independent National Electoral Commission, the onus lies on him to prove that the said results are not genuine.

Unfortunately for the Appellant, he has woefully foiled to discharge that onerous and fundamental duty or obligation imposed on him by low, albeit at his own peril. He has turned to be the architect of his own misfortune. See Section 150 (1) of the Evidence Act (supra); BUHARI VS OBASANJO (supra) at 253

Having considered the above postulations, the said issue No 11 ought to be and some is accordingly hereby resolved in favour of the 1st Respondents.

ISSUE 12 & 13:

The issue NO.12 raises the question of whether the 2nd Respondent (INEC)has conclusively proved that the Appellant was issued with certified true copies of the results in INEC’s possession. It was distilled from ground IX of the Grounds of Appeal. Issue NO.13, on the other hand, raises the question of which party from the circumstances of this case, can the provisions of section 149 (d) of the Evidence Act be invoked upon. The said issue 13 was said to have been distilled from ground X of the Grounds of Appeal. It is instructive that issue NO.13 has been extensively addressed and determined in the pervious issues discussed above. As duly found there above, the Appellant had every opportunity to discharge the legal duty imposed thereupon to call

witnesses and equally adduce credible evidence vide his party agents and presiding officers that were in the filed on the days of the two elections inquestion (14/4/07 and 28/4/07). He also had the opportunity to have the sets of election results in the possession of INEC produced and admitted vide the RW1. Most unfortunately however, the Appellant, for reason best known thereto, missed those golden opportunities. The said issue NO.13 is accordingly hereby resolved in favour of the Respondent.

Issue No. 12 on the other was distilled from ground IX of the Grounds of Appeal. It is evident from the record at page 612 thereof that the Appellant had stated in his evidence thus:

We obtained court order to get certified true copies of electoral materials but we were not given by INEC. They were promising day In day out.

I reported to my lawyer that INEC refused to give us the materials. The 1st Respondent under cross examination was also recorded as having stated at page 625 of the same thereof thus:

I have the knowledge of original result sheets given to Mr. Ojobo. This is the acknowledgement (certified) by petitioner’s agent and running mate.

However, as it would appear from the record at pages 627 – 629, the 1st Respondent counsel’s attempt to tender the acknowledgement inquestion to establish that result sheets were given to the Appellant based on the lower tribunal’s order was vehemently objected to and thwarted by the Appellants learned counsel. The acknowledgement in question was rejected and so marked as “Rejected R4” by the tribunal.

See also the Appellants brief at page 60 paragraphs 4.1 78 – 4.180. Yet in spite of the above scenario the Appellants learned counsel urged upon the Court to hold:

“That the application of the presumption in section 149 (d) of the Evidence Act against the Appellant was erroneous in law and ought to be set aside.”

In view of the submissions of the learned counsel, the authorities referred to therein vis-‘C3 -vis the records of appeal, there is every reason for me to hold that the said issue No, 12 ought to be and same is accordingly hereby resolved in favour of the Respondents, It is now trite, that in view of the circumstances surrounding the instant case vis-‘C3 -vis the various findings there above, the Appellant was evidently the architect of his own misfortunate, with due respect to the learned counsel. Certainly, one can not fathom why the Appellants learned counsel would deem it expedient to object to the production and admission of vital documents resulting in the rejection thereof by the lower tribunal, only for him to now urge upon this court to invoke the provisions of section 149 (d) of the Evidence Act (supra) against the Respondents. I think, that’s certainly not fair at all.

It’s trite that justice is fairness in all the ramifications thereof. That’s, fairness in the adjudication of matters between the parties by the court, In the circumstance, the said issue No 13 is accordingly resolved in favour of the Respondents.

ISSUE NO. 14.

The last issue is issue NO.14. which raises the question of whether the averment in paragraph 2 of the 1st Respondents’ reply to the petition has amounted to an admission of paragraphs 1 and 2 of the petition. The issue was distilled from ground IV of the Appeal. Both paragraphs 1 and 2 of the

petition contained pages 103 (vol. 1)of the Record to the following effect:

1. That I was a candidate under the platform of the Accord (A) for the Governorship election of Enugu State in 2007 and ought to have been returned as elected at the above election.
2. That the gubernatorial election in Enugu State was held on April 14 and 28th, 2007. I and Mr. Sullivan Iheanacho Chime, that 1st Respondent, were candidates; and on April 28th, 2007, the 4th

Respondent declared that the 1st Respondent received 811,798 votes and that I received 15,287 votes and the 1st Respondent was declared by the 4th Respondent to be duly elected.

On the other hand, paragraph 2 of the 1st Respondent contained at page 1 (volume 2) of the record is to the following effect

“2. The 1st Respondent admits paragraphs 1 and 2 of the petition but adds in respect of paragraph 2 that there were other candidates in the said election aside the petition and the 1st Respondent.”

The Appellants learned counsel submitted inter alia, that the averment in paragraph 2 of the 1st Respondents Reply to the petition has amounted to an admission of the averments in paragraphs 1 and 2 of the petition referred to above. For the effect of the admission of the two paragraphs in question, the learned counsel cited and relied upon ADELEKE v. OSHA (2008) 16 NWLR (part 1006) 608 (ratio 41) to the effect thus:

“An alleged fact is admitted by an adverse party in a suit need not be proved and the court is enjoined to accept such fact as established with out prove (sic).”

See also AKINLAGUN v. OSHORBOJA (2006) 12 NWLR (part 993) 60 ratio 11; BUNGE v. GOVERNOR, RIVERS STATE (2006) 12 NWLR (part 995) 573 ratio 2.

It was submitted that since the 1st Respondent had admitted that the Appellant ought to have been returned as elected in the said election, this court is enjoined to accept such fact as established and

accordingly give judgment based on the alleged admitted facts. The 1st Respondents counsel has addressed the vexed issue under his issue No.3. The counsel referred to paragraph 1 of the petition as well as paragraph 12 (2) of the First Schedule to the Electoral Act 2006 (supra), and submitted that the 1st Respondent has complied with the said provision by filing a 34 paragraphed Reply to the petition, He also referred to paragraphs 4, 7 and 9 of the Reply thereof, and thereby argued that its the position of the law that facts averred in a pleading are not considered in isolation, but the general drift of the defence or the counter affidavit are considered historically, See GEORGE v. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71.

It was argued that it would be fool-hardly to come to the conclusion that having stated that paragraphs 1 and 2 of the petition, were admitted with out more, it should be taken as the end of the game, That, even if paragraphs 1 and 2 of the 1st Respondents reply appear to have admitted paragraphs 1 and 2 of the petition, the other parts of the 1st Respondents Reply vehemently deny the averments contained in the petition, to the effect that the petition’s averments that he ought to have been returned as elected in the said election. See NGIGE v. OBI (2006) 14 NWLR (part 999) 1 at 142; ANAMBRA STATE v. ONUSELOGU ENT. LTD (1987) 4 NLWR (part 66) 547.

I have accorded a critical consideration upon the submissions of the learned counsel on the vexed issue, and the relevant averments contained in the petition and 1st Respondents Reply thereto. It is not in doubt that the said paragraph 2 of the 1st Respondents Reply could be considered to have succinctly admitted the averments in paragraphs 1 and 2 if the said paragraph were it to be read in isolation of the 33 other paragraphs making up the entire Reply of the 1st Respondent. However, to read the said paragraph 2 in isolation of the rest of the 33 other averments comprising the entirety of the 1st Respondent’s reply would lead to a sheer absurdity and gross injudiciousness.

I think there is a need for me to reiterate the fundamental and well trite principle that in dealing with pleadings, it behoves on the court to read all paragraphs therein contained together, and not merely a few paragraphs in isolation. That’s so, because it is the sum total of the pleading, be it a statement of claim or defence that normally states the case of the party. It would be unjust to invoke only a few isolated paragraphs in arriving at a conclusion. See NGIGE v. OBI (supra) at 142; AG ANAMBRA STATE v. ONUSELOGU ENT. LTD. (supra). Thus, in view of the above highlight, it has become rather obvious that the totality of the averments contained in the 34 paragraphs of the 1st Respondent’s Reply are to the effect that the 1st Respondent has denied each and every material allegation of fact contained in the petition as if same has been set out and traversed seriatim”. And I so hold. The said issue 14 of the Appellant therefore ought to be, and same is hereby resolved in favour of the 1st Respondent.

The law is now trite, that it’s only where a trial court or tribunal fails to make findings on material and fundamental issues of facts, or wrongly applies the evidence adduced by parties, that the appellate court to which the appeal is lodged has a duty to allow the appeal and set aside the said judgment or decision. See BALOGUN v. AGBOOLA (1974) 10 SC 111; FASHANU v. ADEKOYA (1974) 1 ALL NLR (part 1) 35 91; EBBA v. OGODO (1984) 1 SCNLR372; OKORO v. UZOKA (1978) 4 SC 77.86; CHINWENDU v. MBALI (1980) 3 -4 SC 31; IBODO v. ENAROFIA(1980) 5 – 7 SC 42; ENANG v. ADU (1981) 11 – 12 SC; SALAKO v. DOSUNMU (1997) 8 NWLR (part 517) 371, at 374, respectively.

It’s instructive that the Appellant has passionately urged upon the court to allow the appeal, set aside the judgment and declaration made by the lower tribunal in favour of the 1st Respondent and accordingly make the following orders:

a) A declaration that the Petitioner/Appellant was duly elected and ought to be, and is hereby returned as the duly elected Governor of Enugu State in the Election held in Enugu State on the 14th day of April, 2007 having obtained the highest number of lawful votes cast and obtained one – quarter of the votes cast in two thirds of the 17 Local Government Areas In Enugu State.

b) An Order directing the Chief Judge or any other judge of Enugu State to forth with swear – In the Appellant as the Governor of Enugu State.

However, in view of the circumstances surrounding the case as a whole the submissions of the learned counsel in the respective briefs of argument thereof and the numerous illuminative authorities referred to therein vis-a-vis the records of the lower tribunal, it would not only be naive but also injudicious for this court to grant such prayers. Undoubtedly, there is one thing to which every one in this country, citizen and non-citizen alike, is entitled, And that is the fundamental right to fair hearing as cherishingly enshrined in the Constitution of the Federal Republic of Nigeria, 1999 thus:

36.-(1) In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and Constituted in such manner as to secure its independence and impartiality.

The fundamental principle of fair hearing is undoubtedly not a mere technical, philosophical or euphemistic expression. It is indeed a doctrine of substance. See BAMAIYI v. THE STATE (2P07) FLWR (part 46) 956 at 974 paragraphs D – E; KOTOYE VS CBN (1989) NWLR (part 98) 419; ATANO v. AG BENDEL STATE (1988) 2 NWLR (part 75) 201, respectively.

In the same vein, it should be reiterated that the fundamental object of a court or tribunal is to find out the truth, and to do justice to the parties according to law. Whereas in the daily pursuit thereof, the advocate or counsel as a minister in the temple of justice plays an honourable and eminent role in the administration of justice, As attested to by LORD ELDON LC, the legendary jurist thus:

“Truth is best discovered by powerful statements on both sides of the question”. See EXPARTE LlOYD (1822) mout. 70 at 7n.

Before putting the last dot in this judgment, I have deemed it expedient to reiterate that in the course of adjudicating between parties, a judge has an enviable albeit daunting duty of keeping his vision unciouded. See IN re ENOCH & ZARETZKY, BOCK & COY (1910) IKB 327 cited by LORD DENNING, MR (of remarkably blessed memory) in THE DUE PROCESS OF LAW, published by the Butter -Worths, London, 1980, at page 60, to the effect, inter alia, thus:

It is well very well to paint justice blind, but she does better with out a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is doubt the better. Let the advocates one after the other put weights in to the scales the “nicely calculated less or more” – but the judge at the end decides which way the balance tilts, be it ever so slightly. As judges, we are not unmindful of the vicious nature of electoral malpractices and the attendant negative consequences thereof to the public service (of which the judiciary forms on integral port) in particular, and the society at large. Of the worst vicious forms of electoral malpractices, is over-voting or rigging, See AYOTUNDE v. OLUKORODEARE & ORS (1999) 3 NWLR (part 595) 469 in which this court held, per Aderemi, JCA (as he then was, in his characteristic style) thus:-

Rigging or over- voting is a serious electoral malpractice. It is a most disgraceful and dishonest act that should be condemned in all its ramification, it Is an illegal act. And no persons involved in any form of immoral or illegal act or transaction shall be allowed to come to court to seek a redress no polluted hand shall touch the pure foundation of justice.

Undoubtedly, any declaration or return at on election gained through the hydro-headed and most vicious electoral vice or evil known as rigging or over-voting, is a pure farce and pyrrhic victory, That’s to soy, it was not a victory because the so called winner must have lost so much in winning the election – i.e, losing so much in terms of honour, credibility and prestige in the eyes of the people, It is needless to odd that he has also earned for himself and the accomplices thereof the wroth of the Most High. The Best of all judges! See also NGWU v. MBA (1999) 3 NWLR (part 595) 400 at 409, per Fabiyi, JCA; HON. JUSTICE DENTON-WEST v. MOUMA, SAN (2008) 6 NWLR (part 1083) 418 at 451 – 452 paragraphs H – C; wherein this court recently held per Saulawa, JCA; thus:

And the importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law can not be over emphasized. There is no doubt that public confidence in the independence of the courts in the integrity of judges that man such courts, and in the impartiality and efficiency of the administration of justice as a whole, play a great role in sustaining the judicial system of nation. I think it was Mr. Justice Frank Furter, the eminent and fearless US Jurist who once remarked that:

The Court’s authority … possessed of neither the purse nor the sword …. Ultimately rests on sustained public confidence in its moral sanction. See BAKER v. CARR. SUPREME COURT OF US (1962) 369 US 186.

In the instant case, having regard to the above postulations vis-a -vis the findings and resolving of all the fourteen issues in question in favour of the Respondents, I have no hesitation whatsoever in coming to the inevitable conclusion that the instant appeal is grossly devoid of merit and same is accordingly hereby dismissed by me.

Consequently, the judgment of the lower tribunal delivered on 18/01/2008 dismissing the Appellants petition No NAGL/EPT/EN/GOV/37/2007, is hereby affirmed, The two sets of Respondents are entitled to costs of N30,000.00 each against the appellant.

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Other Citations: (2008)LCN/2794(CA)