Onyema Ugochukwu & Anor V. Chief T. A. Orji & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

This is a cross appeal against the judgment of the Governorship and Legislative Houses Election Tribunal sitting at Umuahia, capital of Abia State of Nigeria, which was delivered on the 25th day of February 2008.

On the 14th of April 2007, Governorship or Gubernatorial election was held in Abia State for the purpose of electing the Governor of that State. In that election, the 1st and 2nd Cross Appellants herein who were the petitioners at the Tribunal were candidates sponsored by People Democratic Party (PDP) for the positing of Governor and Deputy Governor respectively.

The 1st and, 2nd Respondents herein who were 1st and 2nd Respondents at the Tribunal were candidates sponsored by the Progressive Peoples Alliance for the same positions.

Several candidates contested the gubernatorial election under different political parties.

At the conclusion of the election, the Independent National Electoral Commission (INEC) declared the 1st Respondent in this appeal winner of the Gubernatorial Election with 265,389 votes and the 1st Petitioner came second with 136,858 votes. The 1st and 2nd Respondents were therefore duly returned as the Governor and Deputy Governor Elect respectively of Abia State.

The Appellants were dissatisfied with the declaration of the result of the election. Being aggrieved, they filed a petition challenging the declaration at the Tribunal. The petition was hotly contested by all the parties. At the end of the trial, the Tribunal adopted the three issues as formulated by the 2nd set of respondents for the determination of the petition. These issues read as follows:-

“(i) Whether the 1st and 2nd Petitioners in petition No. ABS/GOV/EPT/4/07 scored the majority of the lawful votes cast at the questioned election and not less than one quarter of all the votes cast in each of at least two thirds of all the Local Government Areas in Abia State

(ii) Whether the election of the 1st Respondent is voided by substantial malpractices

(iii) Whether the 1st and 2nd Respondents were qualified to contest the questioned election.”

In the final determination of the issues reproduced hereinabove, the Tribunal resolved the 1st and 2nd issues against the Appellants. The 3rd issue was resolved in favour of the Appellants, wherewith the result of the election as announced by INEC was nullified. In its place the 1st and 2nd Appellants were declared winners and duly returned as Governor and Deputy Governor respectively of Abia State.

This decision precipitated several appeals, which were filed under one number that is CA/PH/EPT/197/08. In all there were six appeals and two cross appeals. For the purpose of clarity and devoid of any difficulty in recognizing the different appeals, these appeals were separated and given numbers 197, 197A-197F. 1st and 2nd Respondents were thoroughly dissatisfied and aggrieved. They therefore filed an appeal in this Court against the decision of the Tribunal. That appeal is given appeal No. CA/PH/EPT/197/08.

The present appeal is therefore a cross appeal to the 1st and 2nd Respondents’ appeal.

The notice of cross appeal which is dated 14th March 2008 and filed on the 17th March 2008 contains ten grounds of appeal.

In line with the relevant rules of this Court parties filed and exchanged briefs of argument. From the ten grounds of appeal, the Appellants formulated two issues at page 60 of the Cross Appellants’ joint brief of argument dated 24th day of April 2008 and filed on 25th day of April 2008. These issues are hereby reproduced hereunder as follows: –

“(i) Whether the lower Tribunal was right when it refused to rely on the statement of results (result sheets including Form EC8A, EC8B and EC8C) tendered by the petitioners through PW1 in evidence?

(ii) Whether the lower Tribunal was right when it held that the Petitioners did not prove that they scored the majority of lawful votes cast at the election?

Although the numbering of the issues read up to three, only two issues are formulated and certain number of grounds are enumerated at number three. I do not know what those numbers are doing there. It will also appear that the 2nd issue is not distilled from any ground of appeal. However on a close perusal of the argument on issue No. 2 at page 72 of the Cross Appellants’ brief of argument, I am satisfied that the occurrence at page 60 is a mistake which has been so corrected at page 72. I therefore accept that issue 2 is distilled from grounds 4, 5, 6, 9 and 10 of the grounds of appeal as indicated in the brief and I will treat it as such.

The 1st and 2nd Cross Respondents’ joint brief of argument is dated 5th May 2008 and filed on the 6th May 2008. Chief Wole Olanipekun, learned senior counsel for the 1st and 2nd Cross Respondents, who settled the brief of argument formulated only one issue for the determination of this appeal at page 6 of the said brief. The sole issue reads thus: –

“Having regard to the evidence and confession of PW1 to the effect that all what he deposed to in his witness deposition and what he narrated to the lower Tribunal were transmitted to him by third parties, whether or not the lower Tribunal was not on a very strong legal wicket by branding the evidence of PW1 as hearsay evidence and discountenancing same, as well as attaching no probative value to the purported documents tendered by him and/or the Cross Appellants.”

Prince L. O. Fagbemi, learned senior counsel for the 3rd Cross Respondent distilled two issues which he set out at page 15 of the 3rd cross-Respondent’s brief of argument which is dated 5th May 2008 and filed on the 7th of May 2008. The twin issues are hereunder reproduced as follows: –

“(a) Whether the tribunal was right in holding that the 1st and 2nd Cross-Appellants in petition No. ABS/GOV/EPT/4/07 did not prove that they scored the majority of the lawful votes cast at the questioned election.

(b) Whether the Tribunal was right when it held that the Cross-Appellants did not prove that they won the election in issue with a majority of lawful votes cast at the election.”

Mr. Livy Uzoukwu, learned senior counsel for the 4th to 2894 Respondents on his part, also formulated two issues on behalf of the said Respondents’ in their brief of argument dated 13th October 2008, but deemed filed on the 20th October 2008. The issues as set out at page 4 of the said brief read as follows: –

“(i) Whether the Tribunal was right in declining to accord probative value to the results tendered by the PW1 upon which the Cross-Appellants challenged the return of the 1st and 2nd Cross-Respondents.

(ii) Whether the Tribunal was right when it held that the Cross-Appellants did not prove that they won majority of lawful votes cast at the election and scored at least 25% of the valid votes cast in each of the two thirds Local Government Areas in Abia State.”

The 1st and 2nd Cross-Appellants filed reply briefs to the three cross Respondents’ briefs of argument which I have made reference to above. I shall consider those reply briefs in course of this judgment.

When this cross appeal came up for hearing on the 26th of November 2008, learned senior counsel for all the parties adopted and relied on their clients’ respective briefs of argument, and in addition made submissions in expatiation of the points which they raised in those briefs of argument.

Chief Olanipekun, learned senior counsel for the 1st and 2nd Cross-Respondents in his oral argument, submitted that the 1st and 2nd Cross-Appellants appealed against one of the two issues that were resolved against them by the Tribunal. He particularly submitted that the Appellant appealed against issue I only and that since there was no appeal against issue 2, this court should not disturb the finding on that issue by the lower court.

In a further argument, learned senior counsel referred to the reliefs claimed by the 1st and 2nd Appellants at the Tribunal, especially reliefs 3, 4 and 5 to the effect that the result of the election had not been announced and submitted that this Court will be without jurisdiction to declare the Cross-Appellants as the winner of the election.

Finally, learned senior counsel submitted that the Appellants’ relief 6 which was not claimed in the alternative and reliefs 3, 4 and 5 are contradictory. Learned counsel urged this Court to dismiss the appeal.

Prince Fagbemi, learned senior counsel for the 3rd cross Respondent adopted the argument of Chief Olanipekun and contended that this is a jurisdictional matter which could be raised at any time. Learned senior counsel urged this Court to dismiss the cross appeal.

On his part, Mr. Livy Uzoukwu, learned senior counsel for the 4th-2894th Respondents submitted that the Cross-Appellants having accepted that the spread of scores contained in their table is wrong, it then means that the finding of the Tribunal that the Cross Appellants did not win the majority of the votes cast cannot and will not be faulted by them. Learned senior counsel referred the Court to page 2683 of the vol. 4 of the record where this admission was made and urged the Court to dismiss the appeal.

These pieces of submission elicited a reply from Mr. Ukala, learned senior counsel for the 1st and 2nd Appellants, who in his submission on point of law urged the Court to hold that the issue of announcement of the result of the election is not available to the Appellants at this point in time because that was a matter that was subject of a ruling by the Tribunal against which the Cross-Appellant did not appeal.

In a further argument, learned senior counsel submitted that the learned senior counsel for the Respondents have abandoned their traditional role of defending the decision against which the Cross-Appellants have appealed, as such their argument that the Court had no jurisdiction be discountenanced. Learned senior counsel then submitted that the issue of jurisdiction is not reflected in any of the grounds of appeal and that the issue 2 against which the Appellants have been accused of not appealing against was claimed in alternative.

Finally, learned senior counsel urged the Court to allow the appeal.

From the notice of cross appeal dated 14th March, 2008 and filed on the 17th March, 2008, I am satisfied that the appeal herein attacks the findings of the Tribunal on issue one which it framed along with issues 2 and 3. However, although a question of jurisdiction can be raised at any stage and even on appeal for the first time, adequate notice that jurisdictional issues will be raised must be given to the adverse party. For the Appellant, it must be raised in the notice of appeal, and for the Respondent who did not file a notice of appeal; such issue should be incorporated in the Respondent’s notice. Arguing a jurisdictional issue away from the procedure I have enumerated above will spring surprises on the adverse party and this is not permissible in law. Even where the court suo motu raises the issue of jurisdiction, it must invite parties to submit addresses. It is trite that parties are bound by their grounds of appeal and the issues they submitted to the Court for the determination of the appeal. See Okpula v. Okpu (2003) 5 NWLR (Pt.812) 183 at 212 paragraph B; Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (pt. 824) 49 at 72 paragraph C-D. The Tribunal actually found that the Cross-Appellants’ claim at the Tribunal that the election result had not been released, was not commendable, since it was a matter that the Tribunal could take notice of that an election result had been declared and the 1st and 2nd Cross Respondents had been sworn in as the Governor and Deputy Governor respectively of Abia State. There was therefore no feature that could have deprived the Tribunal of its jurisdiction to determine the petition on its merit.

I also agree with Mr. Ukala SAN, that the traditional role of a respondent in an appeal is to defend the decision appealed against as he is estopped from attacking or challenging the decision. See Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) 377; Eliochin (Nig) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47.

I therefore discountenance the oral submission on jurisdiction.

I have read through the issues formulated by the Appellants and each set of the Respondent and I find that they are similar as they all touch on the question of assessment of the evidence before the Tribunal and ascription of probative value to such evidence. I will however adopt the two issues formulated by Mr. Livy Uzoukwu, learned senior counsel for the 4th-2894th Respondents in the determination of this cross appeal. At the risk of repetition I will reproduce the first issue hereunder as follows: –

“(i) Whether the Tribunal was right in declining to accord probative value to the results tendered by the PW1 upon which the Cross-Appellants challenged the return of the 1st and 2nd Cross-Respondents.”

On this issue, Mr. D. C. Denwigwe, learned counsel who settled the Cross-Appellants’ brief of argument submitted that the Tribunal was wrong in its conclusion when it declared all the four sets of statements of results which were tendered and admitted as hearsay evidence without evaluating them. He listed the four sets of results as follows: –

1. Certified true copies of those results, which INEC issued to the Cross Appellants pursuant to the order of the Tribunal.

2. Original carbon copies which the agents of the 1st Cross-Appellant received from the collation officers in the field.

3. INEC’s own other version of the same results, which they filed in the Tribunal with the leave of the Tribunal and served on the Cross-Appellants.

4. Police copies of some of the results which were tendered by PW6, a police officer as the results received by the police at that election.

In a further argument, learned counsel submitted that the Documents enumerated hereinabove were duly certified, as such they could be tendered from the bar without calling any witness.

In aid, the following authorities were cited: –

Okoh v. Igweri (2005) All FWLR (pt.264) 891: Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569 at 592 paragraph D; Onyoka v. U. B. N. Ltd. (1993) 5 NWLR (Pt. 296) 698; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 6371 Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326: Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at 123.

Continuing his argument, learned counsel submitted that the law presumes in favour of authenticity and genuineness of any document purporting to be a certified copy of the public document it represents, as such a certified copy of a public document may be tendered from the bar or through any witness, notwithstanding that the witness is not the maker.

In support thereof learned counsel cited the following authorities thus: –

Agagu v. Dawodu (1990) 7 NWLR (Pt. 160) 56 at 66 and 69; Ogbunyiya v. Okudo (1976) 3 L.R.N. 318: Isibor v. The State (1970) 6 NSCC 188.

Still in argument, learned counsel submitted that the police being a corporate body, PW6, Mr. Itong Iyayi (DSP) who represented the police could validly tender any document from the police and that wouldn’t be hearsay. He therefore urged the Court to hold that the evidence of PW6 in which he tendered exhibit HV to HV 32 is valid and consistent with the law. In aid learned senior counsel cited Kate Enterprises Ltd v. Daewoo (Nig) Ltd (1985) 2 NWLR (Pt 5) 116; Anyaebosi v. R. T. Briscoe (Nig) Ltd. (1987) 3 NWLR (Pt. 59) 84: Igunbor v. Ugbedi (1976) 9-10 SC 179 at 187.

Learned counsel also canvassed the same argument in respect of PDP which he classified as a corporate body and that the statement of results received by its agents at the polling station which were delivered to it obviously formed part of its record.

Learned counsel in a further argument, urged this Court to hold that the Tribunal committed error when it held that based on decided authorities of the Supreme Court and the Court of Appeal the documents could not be relied upon. Learned counsel referred to Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1 at 315; Husidu v. Goje (2003) 15 NWLR (pt. 843). 352 at 386: Omoboriowo v. Ajasin (1984) 1 SCNLR 108 and Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 545 as the authorities cited by the Tribunal and made spirited effort to distinguish those authorities with the instant appeal.

Learned counsel for the Appellants in his argument, seems to have dwelt largely on the admissibility of the documents, which were tendered through PW1 and PW6. The Tribunal in its judgment clearly said that it had no quarrel with the admissibility of the documents. This is what the Tribunal said at page 3650 paragraph 2 of the record of appeal, vol. 5 as follows: –

“The Tribunal is not quarrelling with the admissibility of these documents. They are already in evidence with various exhibit numbers. The problem is on the probative value to attach to them.”

The question now is whether the Appellants had correctly and properly put before the Tribunal the documents, which were tendered through PW1 and PW6 as to engender any probative value to the said documents by the Tribunal?

Chief Wole Olanipekun, learned senior counsel for the 1st and 2nd Respondents is of the firm view that the documents were not properly placed before the Tribunal. Learned senior counsel in his argument submitted that PW1 had clearly admitted that he was not at the various polling stations and that he had no connection to the making of Forms EC8A, EC8B and EC8C series which were tendered through him. In a further argument, learned senior counsel submitted that the Tribunal was right in not according probative value to the documents tendered, because they were neither tendered by the maker of the document nor by those who were present at the time the documents were made. Finally, learned silk urged the Court to uphold the decision of the Tribunal on this issue.

Prince L. O. Fagbemi, learned senior counsel for the 3rd Respondent, in his argument submitted that the allegation by the Appellants in their pleading at the Tribunal that the result of the election was falsified amounts to an allegation of crime and the Appellants were required to prove these allegations beyond reasonable doubt and this they failed to do. In a further argument, learned senior counsel submitted that the lower Court was right in holding that the testimonies of PW1 and PW6 were hearsay because the documents which were tendered through them were made in the field where these witnesses were absent and those who made the documents and the agents who brought the documents to the witnesses were not called as witnesses. According to the learned senior counsel, the failure to call these agents as witnesses by the Cross-Appellants is fatal to their case. Learned senior counsel cited several authorities in support of his submission and urged the Court to uphold the decision of the Tribunal on this score.

For the 4th-2894th Respondents, Mr. Livy Uzoukwu, SAN, who settled the brief quoted extensively admissions made by PW1 in reply to cross examination put to him, some portions of the judgment of the Tribunal, and some relevant decisions of this Court and the Supreme Court, and submitted that the allegation of falsification of result by INEC was not proved beyond reasonable doubt as provided for by the law. It is also the submission of the learned senior counsel that Forms EC8A and EC8B series upon which the cross Appellants relied were not tendered through the proper witnesses and the Tribunal was right to have refused to accord probative value to them.

Finally, learned senior counsel urged the Court to hold that the Cross-Appellants have not shown that the findings of the Tribunal were perverse or against evidence.

Mr. Denwigwe, learned counsel for the Appellants filed three separate reply briefs to the 1st and 2nd Respondents joint brief of argument, 3rd Respondent’s brief of argument and 4th-2894th Respondents’ brief of argument. In the reply brief to the 1st and 2nd Respondents’ brief, learned counsel urged the Court to discountenance the following claims in that brief: –

“1. That 265,895 votes declared in favour of the 1st and 2nd Cross-Respondents constituted 75% of the total number of votes of 479,377 cast at the election, because it is unrealistic and misleading.

1. That the petitioner’s cross-Appellants never asked that they be returned as Governor and Deputy Governor respectively of Abia State.

2. Allegation at paragraph 2.12 at page 9 that ground 8 of the Cross-Appellants ground of appeal is repetitive of ground I and that ground 9 of the Cross-Appellants ‘grounds of appeal is repetitive of ground 4.

3. In paragraph 3.1 at page 9 of cross respondents brief where the single issue formulated by the 1st and 2nd Respondents stated

“Confessions of PW1 to the effect that all what he deposed to in his witness depositions and what he narrated to the lower Tribunal were transmitted to him by third parties.”

4. New issue at page 29 of the brief titled “Could the lower Tribunal have held that the Cross-Appellants scored the majority of lawful votes cast.”

I accordingly discountenance those issues set out above on the ground that the arithmetic projection in number one above is unrealistic and on number 2 above, the cross Appellants did ask that they be returned as Governor and Deputy Governor of Abia State in their claim at the lower Court. Grounds 8 and 9 of the Cross Appellants’ brief are not repetitive of grounds 4 and none of the grounds of appeal admitted of confession by PW1 and the Respondent is precluded from formulating issue that does not arise from grounds of appeal. On the last objection at number 5 above, sub-issues within issues for determination are not permissible under the rules of this Court.

Apart from these issues I have discountenanced herein, the remaining issues canvassed in the reply brief are not new issues that arose in the 1st and 2nd Respondents’ brief of argument. The essence of a reply brief is to address new issues in the Respondents’ brief of argument.

On the reply brief to the 3rd Respondent’s brief of argument, Mr. Denwigwe submitted that the copious review of the pleading evidence and case law undertaken by the 3rd cross-Respondent at pages 2-14 of the brief as well as in the body of the argument of the issues which are directed at attacking the credibility of the witness did not form part of the reasons for the decision of the Tribunal against which the appeal herein lies. According to the learned counsel, the only reasons relied upon by the Tribunal in coming to its conclusion was that it could not rely on the statement of result tendered in evidence by PW1 because they were not tendered through the polling agents who were on the field where the documents were made and so the testimony of PW1 was a hearsay evidence. Learned counsel referred this court to pages 3648-3652 of the record and submitted that the Tribunal did not rely on any other reason including the reason of contradictions in the evidence of witnesses, inconsistency in the evidence of witnesses, incompleteness of the statement of result or that the evidence in support of the cross Appellants’ case was at variance with the pleadings. Learned counsel then urged this court to discountenance such argument in the 3rd Respondent’s brief of argument.

The reply brief to the 4th-2994th Respondents is a re-argument of the appeal. A reply brief should be a reply to the new issues raised in the Respondent’s brief and not to have a second bite at the cherry.

Having considered the submissions of learned counsel for the parties, the Tribunal at page 3649 from line 4 of the record of appeal said: –

“We wish to state that the results tendered and which the Petitioners wish to reply upon to challenge the return of the 1st Respondent based on the result of the electoral body in this respect, the Independent National Electoral commission (INEC), are hearsay evidence by virtue of lack of proper cross examination of the said documents (sic) in open court as Court and Tribunal also are enjoined to do, namely by agents or maker of the said documents tendering same and being cross examined by the contending parties. It is on record that PW1, in the person of the 1st petitioner admitted receiving the said results which he relied upon from his party’s agents and are evidence before this Tribunal from Exhibits Kk series for Aba North Local Government Area. Having admitted receiving such documents from his agents, this presupposes that he was not present during the making of such documents. It is for this reason that we share and agree with the submission of the learned silk of counsel to the 2nd set of Respondents on his branding the entire testimony of PW1 as hearsay.”

Clearly this was the only basis upon which the tribunal refused to accord probative value to the documents tendered through PW1 and PW6. There was no comment by the Tribunal on the credibility of the witnesses, contradictions in the evidence of witnesses, inconsistency in the evidence of witnesses, incompleteness of the statement of result or on the evidence in support of the Cross-Appellants’ case being at variance with the pleadings.

In an appeal, the grounds of appeal, and issues submitted by parties for adjudication must relate to the decision and should constitute a challenge to the ratio of the decision against which the appeal lies.

See Saraki v. Kotoye (1992) 9 NWLR (Pt. 261) 156; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546.

I therefore agree with Mr. D. C. Denwigwe, learned counsel for the Appellants that all argument canvassed in respect of credibility of witnesses, contradiction in the evidence of witnesses, inconsistency on the evidence of witnesses and evidence in support of the Cross-Appellants’ case being at variance with the pleadings be discountenanced. They are accordingly discountenanced.

Assessment of evidence and ascription of probative value to such evidence is primarily the function of the trial Tribunal. An appellate court will not disturb clear findings of fact by a trial court if such findings are supported by evidence and are not in conflict with any law on admissible evidence or that such findings are not perverse and do not lead to a miscarriage of justice.

The agreement in which the parties to the petition elected to tender Form EC8A and EC8B series from the bar broke down and that is why they were tendered through PW1 and PW6. The Tribunal found that these witnesses were not on the field where these documents were prepared. The decision to tender them through witnesses was for the opposing party to cross-examine on the documents. The witnesses’ equivocation under Cross-Examination as shown in the record clearly shows that they neither know all their agents at the polling stations nor did they know what transpired at these stations. I therefore agree with the conclusion by the Tribunal when it chose not to accord the documents any probative value.

In Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352, at page 393 paragraphs B-E, which was variously cited by parties in this appeal, this court per Akintan, JCA as then was held:-

“All that the Appellants needed to prove were to ensure that 26,299 votes plus one vote are subtracted from the votes credited to the 1st Respondent. But in their efforts to prove this, they relied principally on the evidence led by PW1 and PW2, their two principal witnesses. They overlooked the point that these two witnesses were not on the field where the results being challenged were counted and entered on the forms brought to the PW1 and later passed on to PW2.

The evidence relied on by PW1 and PW2 are therefore what they were told by the witnesses (i.e. their agents) who were not called to give evidence. The correct evidence in this respect ought to come from the polling agents who received the forms from INEC polling officials and in whose presence the INEC officials prepared and signed the forms on which the disputed figures were written”

See Omoboriowo v. Ajasin (1984) 1 SCNLR Ezeazodo Siako v. Okeke (2005) 16 NWLR (pt. 952); Buhari Obasanjo (2005) 13 NWLR (pt. 941) 1.

In Buhari v. Obasanjo (supra) at page 315 paragraphs B-D, the Supreme Court held as follows: –

“The position of the law regarding the type of evidence which must be held 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 and/or collated. The state party agents such as Bisi Lawal (PW1) received the figures he gave in his evidence in court in this case from his party’s agents who were not called as witnesses. Such evidence is therefore inadmissible as it is hearsay.”

There is in law a rebuttable presumption that the result declared by INEC is correct and authentic and the onus is on the cross-Appellant herein to rebut that presumption. The Appellants alleged that INEC falsified the result in favour of the 1st and 2nd cross Respondents. This is an allegation of crime that the Cross-Appellants are required to prove beyond reasonable doubt. This can only be done by calling those who falsified the results or those who were present when the falsification was carried out.

See Nwobodo v. Onoh (1984) ANLR1 and Buhari v. Obasanjo (Supra) at page 193 paragraphs C-D, which were also variously cited in the party’s briefs of argument.

Having considered the argument canvassed on this issue, I am in total agreement with the Tribunal’s conclusion at page 3652 which reads thus: –

“there is no basis in law for the Petitioners to contest the validity of Forms EC8A and EC8B upon which the return of the 1st Respondent was based or to stigmatise the said forms as falsified. This we believe is due to the fact that the bases of the petitioner’s documentary evidence which he relied upon are based on hearsay evidence.”

The tribunal could have not held otherwise on the face of the binding authorities of Hashidu v. Goje (Supra) and Buhari v. Obasanjo (supra).

The four sets of results, which were tendered and admitted through PW1 and PW6, were neither prepared by these witnesses nor were they present when the results were collated in the field. The argument that the police and PDP are corporate bodies and any of their members could tender any documents in their possession is well taken. The issue here has nothing to do with the tendering and admission of the results. The Tribunal clearly stated and this was quoted elsewhere in this judgment that the Tribunal had no quarrel with the admissibility of the results as they were already in evidence. The quarrel was with the probative value attached to the documents. The argument herein is therefore not helpful to the Appellants, case.

On the basis of the reasons I have set out herein the first issue is resolved in favour of the Respondents and the grounds upon which this issue is distilled are hereby dismissed.

The second issue is whether the Tribunal was right when it held that the cross-Appellants did not prove that they won majority of lawful votes cast at the election and scored at least 25% of the valid votes cast in each of the two thirds of the Local Government Areas in Abia State.

On this issue Mr. D. C, Denwigwe, learned counsel for the Cross-Appellants submitted that the cross Appellants pleaded the score of votes in detail and particularized them at pages 1-369 of the record while the cross-Respondents did not plead any scores at all at polling stations, ward or Local Government Area levels of collation and did not give evidence of any scores at all, but simply adopted their scanty and terse sworn statement. Learned counsel contended that the conduct of the Respondents is contrary to paragraphs 12, 14 and 15 of the 1st schedule to the Electoral Act 2006. In a further submission, learned counsel insisted that compliance with the provisions of the 1st Schedule to the Electoral Act 2006 is mandatory. In aid learned counsel cited Chief Okey Ikoro v. Hon Osita Izunaso & 2 ors unreported, Appeal No. CA/PH/EPT/2007; Kallamu v. Gwin (2003) 16 NWLR (Pt.847) 493; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416 at 57 (sic) paragraph E-F.

In a further argument, learned counsel submitted that the failure by the Respondent to object to the votes pleaded by the cross appellants and to plead their own scores is an admission that the votes pleaded by the cross Appellant is correct and the cross Appellants required only a minimum proof to establish their case, and this was effectively done through exhibits “A2” and “A3”.

On this issue, learned counsel cited several authorities to buttress his contention. Among the authorities cited are: –

Ajadi v. Ajibola (2004) 16 NWLR (pt. 898) 91 at 164 paragraphs C-D; Badawi v. Adamu (1999) 3 NWLR (pt. 594) 303 at 308 paragraphs A-B; BUA v. Dauda (2003) 13 NWLR (Pt. 839) 657 at 679-680 paragraphs G-A.

Finally on this issue learned counsel argued that having found that the Respondents were not qualified to contest the election, any votes standing in their favour were wasted votes, as such the Tribunal was in error when it held that the cross Appellants did not win 25% of the votes cast in each of at least two third of the Local Government Areas of Abia State.

Chief Olanipekun learned senior counsel for the 1st and 2nd cross-Respondents argued that since the cross Appellants in their pleading admitted that the result of the election had not been released, the Respondents had no obligation to plead any score. In a further argument, learned senior counsel submitted that for the Cross-Appellants to succeed, they should have pleaded two results, one being the genuine result and the other one being the falsified result. Failure to do so is a clear admission by the Cross Appellants that they have failed to prove that they won majority of the votes cast at the election. To buttress this submission, learned senior counsel cited –

Wali v. Bafarawa (2004) 16 NWLR (pt. 898) 1 at 34 paragraphs D-E; Sabiya v. Tukur (1980) 11 SC 109: Nwobodo v. Onoh (1984) 1 SC WLRL1; Atikpekpe v. Joe (1999) 6 NWLR (Pt. 607) 429.

Arguments were filed on behalf of the 3rd and 4th-2894th Respondents on this issue.

On issue one, the Tribunal refused to accord any evidential value to the results tendered and admitted through the Cross-Appellants. These results were disregarded and else where in this judgment I agreed with the Tribunal that the results were not tendered through the appropriate witnesses who could be cross examined on what transpired at the polling stations. To go into the argument proffered by parties on this issue will amount to over flogging an issue, which is admittedly settled. The cross Appellants relied on those documents to claim that they scored the majority of votes cast at the Governorship election of 14th April 2007. Once those documents are held to be without evidential value, the claim that the cross Appellants won majority of the votes cast at the election is ipso facto dead and buried.

I have also held else where in this judgment that there is in law a rebuttable presumption that the result of any election declared by INEC is correct and authentic and the onus is on the cross Appellant to rebut this presumption before asking the Cross-Respondents to file and plead votes which are contradictory to the declaration that has been rebutted. The Cross Appellants cannot create number of vote’s independent from the votes declared by INEC which they have failed to rebut and expect the Respondents to file and plead votes.

For the reasons I have set out herein, I also resolve this issue in favour of the Respondents, and the grounds upon which the issue is distilled are accordingly dismissed.

I on the whole I find the appeal lacking in merit. Accordingly same is hereby dismissed. The Appellants shall pay N30, 000.00 to each set of Respondents as cost of prosecuting this appeal.

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Other Citations: (2009)LCN/3117(CA)