Pastor (Barr.) Anayo Enechukwu J V. Dr. Chimaroke O. Nnamani & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A.

This is an appeal by one of the seven (7) candidates who contested the election of 21st day of April 2007 into the Senate for the Enugu East Senatorial District.

The Petitioner, hereinafter referred to as the Appellant, who was the candidate of Accord (A) party in the said election had petitioned the National Assembly Governorship & Legislative Houses Election Petition Tribunal Holden at Enugu. The appellant in his petition had challenged and questioned the election on the following grounds:- that the 1st Respondent was not qualified to contest the said election; that the 1st Respondent was not duly elected by the majority of lawful and or valid votes cast at the election and that the election was fraught with irregularities. The Appellant had prayed the tribunal to declare that the 1sl Respondent was not duly declared elected or returned as announced but to declare him, the Petitioner, as validly and duly elected as the person who scored the majority of lawful votes cast. In the alternative he had prayed that the said election be nullified by the tribunal.

Both Respondents duly filed their respective reply to the petition, The allegations of the appellant contained in the petition were refuted and said to be unfounded. The 2nd – 171st respondents in their reply al pages 250 – 267 of the Record of Appeal stated that the said election was properly conducted in substantial conformity with the Electoral Act, 2006 and that the 1st Respondent was duly returned as the winner. Having duly exchanged processes, all parties filed their respective written addresses and same were adopted. At the end of hearing the appellant’s petition was dismissed by the Tribunal on 13th November, 2007.

Dissatisfied with the decision of the tribunal, the Appellant filed a Notice of Appeal on 29th November, 2007. The said Notice of Appeal contains the following eight (8) grounds of appeal without their particulars.

GROUNDS OF APPEAL

Ground 1 – Error in Law

The decision of the tribunal upholding the return of the election was reached in clear breach of the principles of fair hearing and therefore, indefensible in law.

Ground 2 – Error in Law

The Tribunal failed to appreciate the proper issues placed before them for determination, the misconception of which has led to the miscarriage of justice in the judgment.

Ground 3 – Error in Law

The Tribunal erred in law in their failure to determine the issue of jurisdiction raised by the Petitioner/Appellant before considering the evidence preferred (sic) by and/or elicited from the 1st 2nd & 3rd Respondents’ witnesses, the said pieces of evidence being based on incompetent Replies,

Ground 4 – Error in Law

The learned trial Justices of the Tribunal erred in law in their failure to enter judgment against the 4th – 171st Respondents who failed to oppose the petition.

Ground 5 – Error in Law

The conclusion reached by the Tribunal cannot be justified in the face of the evidence tendered during the proceedings.

Ground 6 – Error in Law

The trial Justices of the Tribunal erred in law when they held that apart from reproducing the paragraphs of his petition “hook, line and sinker in his Statement on oath, the Petitioner made no attempt to substantiate the averment in these paragraphs with credible and legally acceptable evidence.”

Ground 7 – Error in Law

The learned trial judges erred in law in upholding the 1st Respondent as the winner of the Enugu Senatorial District Election, held on the 21st day of April, 2007, when the same learned trial judges had rejected and marked as “tendered but rejected” all the results of the said election tendered by the 1st, 2nd & 3rd Respondents.

Ground 8 – Error in Law

The learned trial Judges erred in law in their failure to determine the effect of the refusal of the 2nd Respondent to allow the Petitioner/Appellant to inspect and produce vital election documents requested by the Petitioner/Appellant for determination.

Upon receipt of the record of appeal, the Appellant’s brief of argument dated 11th February, 2008 was filed on 12th day of February 2008. The 1st Respondent’s brief of argument dated 18/02/08 was filed on same date. Similarly, the brief of argument of the 2nd & 3rd Respondents was dated and filed on 18th February, 2008. The Appellant filed a joint reply brief to the 1st – 3rd Respondents’ brief of argument.

From the appellant’s brief of argument, the following seven (7) Issues were said to have been formulated for determination of the appeal.

Issues for determination

“1. Whether the Tribunal below was right in refusing to sustain the objection to its Jurisdiction in considering the evidence proffered by and or elicited from the 1st, 2nd, & 3rd Respondents’ witnesses, the said pieces of evidence being based on incompetent replies.

2. Whether the Tribunal below was right by dismissing the Appellant/Petitioner’s petition and holding that the Petitioner would have fortified his case if he had called some of the said agents to testify in support of his petition after the same Tribunal below wrongly excluded the sworn statements of the Respondent/Petitioner’s witnesses/agents, thereby reaching its decisions in clear breach of the principle of fair hearing and therefore, indefensible in law.
3. Whether the Tribunal below was right in failing to apply the necessary presumption of law under Section 149(d) of the Evidence Act against the 2nd – 171st Respondents when they refused to allow the Appellant/Petitioner to inspect and produce the election results and other documents used for the said election, even after the Tribunal below had ordered so.
4. Whether the Tribunal below was right in refusal to enter judgment in favour of the Appellant/Petitioner against the 4th – 171st Respondents for their failure to oppose the petition.
5. Whether the Tribunal below was right in its presumption of regularity and correctness of the results declared by the 2nd and 3rd Respondents, having rejected and marked as “tendered but rejected” all the results of the said election tendered by the is 2nd and 3rd Respondents.
6. Whether on the totality of evidence on record, the Appellant/Petitioner was entitled to succeed and be declared the winner of the Enugu East Senatorial District election held on the 21st day of April 2007.
7. Whether the Tribunal was right in law when it failed to find that the Enugu East Senatorial District election held on the 21st day of April 2007 was void on the ground that it was not conducted in substantial compliance with the provisions of the Electoral Act 2006.

The 1st Respondent in his brief of argument also formulated the following Issues for determination arising from the grounds of appeal contained in the appellant’s Notice of Appeal.

“1. Whether the Appellant raised and a Petitioner was entitled to raise an objection to the jurisdiction of the lower Tribunal before whom he brought his Petition.

2. Whether the Honourable Tribunal was right in holding that the Appellant had not proved that the 1st Respondent was not duly elected by the majority of lawful votes cast in the Enugu East Senatorial District Election held on 21st April 2007.
3. Whether the Honourable Tribunal was right in rejecting the supplementary witness statements not accompanying the Petition subsequently produced by the Appellant in suspicious circumstances without leave of court and without notice to the Respondents.
4. Whether non-production of documents for inspection upon a court order by a party automatically entitles the other party to judgment rather than to a right to apply for enforcement of such order.
5. Whether the presumption of regularity of official results is dependent upon documents to be tendered by a Respondent when all parties by pleadings are id idem on the official results as declared.
6. Whether the Honourable Tribunal was right in refusing to enter judgment against the 4th to 171st Respondents in the circumstances of the case.
7. Whether the Honourable Tribunal was right in dismissing the Petition in the light of the totality of the evidence on record.

The 2nd & 3rd Respondents in their brief of argument also formulated the following Issues for determination arising from the grounds of appeal.

1. Whether respondents replies were competent and worthy of consideration by the tribunal.
2. Whether the tribunal breached the Appellant’s right to fair hearing by not considering the evidence of witnesses whose statements on oath were not filed with the petition and not listed as witnesses.
3. Whether Section 149(1) of the Evidence Act is the remedy for non compliance with Order of Court for petitioner to access documents he does not have copies of.
4. Whether default judgment can enure in favour of a petitioner against agents of represented respondent.
5. Whether the Petitioner proved his case and was entitled to Judgment.

It is note worthy that no brief of argument was filed by and none was filed for the 4th – 171st Respondents.

The Appellant took the issues formulated in his brief of argument seriatim.

Issue No.1 –

The appellant contended that the lower tribunal lacks the jurisdiction to take into account the evidence proffered by and/or elicited from the 1st, 2nd & 3rd Respondents witnesses in the determination of the issues in dispute in the case, He submitted that the said pieces of evidence proffered by and/or or elicited from the 1st, 2nd & 3rd respondents’ witnesses were based on an incompetent Replies. He referred to pages 94-114 and 250-267 of the Record of Appeal. He submitted further that from the pleadings and the totality of evidence led, the lower tribunal lacked the jurisdiction to determine the issues in dispute in the petition by considering the evidence proffered by and/or elicited from the said 1st, 2nd & 3rd respondents witnesses. He cited: Buhari vs. Obasanjo (2003) 17 NWLR (Pt.850) 451 ratio 12 and P.452.

The Appellant further contended that the Respondents did not file their respective reply in accordance and in conformity with the provisions of the Electoral Act, 2006 and Practice Direction, 2007.

He referred in particular, to paragraphs 12 & 15 of the First Schedule to the Electoral Act, 2006 and paragraph 2 of the Practice Direction, 2007.

He referred to paragraph 60(a) & (b) of the Petition and written statement on Oath to the effect that the Petitioner was complaining of undue return of the 1st respondent and claiming the seat. He contended that there was nowhere in the Replies of the 1st, 2nd & 3rd Respondents they set out the facts and figures clearly and distinctly disproving the claim of the Petitioner. Learned Counsel however conceded that the 1st, 2nd & 3rd Respondents filed their replies in compliance with the provisions of paragraph 12(1) of the First Schedule to the Electoral Act, 2006. But he submitted that they were required to do more than they did in filing their Replies. He cited; Justice Party Vs. INEC (2006) 19 WRN 39 at 49; Buhari Vs. Obasanjo (2005) 2 NWLR (Pt 910) 241 Buhari Vs. Yusuf (2003) 14 NWLR (Pt841) 446; Ladipo Vs. Oduyoye & Ors. (2004) 1 EPR 705, among others.

On the issue of jurisdiction of the tribunal and the use of the word SHALL in paragraph 2 of the Electoral Tribunal & Court Practice Directions, 2007 and in the Electoral Act, 2006, he cited; Kallamu Vs. Gurin (2003) 16 NWLR (Pt 847) 493 at 506; Ogumuche Vs. Mba (1994) 4 NWLR (Pt. 336) 75 at 86; Fashar Industrial & Property Dev. Co. (Nig.) Ltd Vs. Executive Aviation Services Ltd. & Ors. (2006) 35 WRN 143. He submitted that failure to comply with the said provisions of the law and rule is fatal and robs the 1st, 2nd & 3rd respondents of the right to adduce evidence in support of the replies. He cited; Onyemuzu Vs. Djiakor (2000) 6 NWLR (Pt.659) 25.

The Appellant submitted that the entire evidence given by RW1-RW9 should be nullified as no evidence can lie on an incompetent replies. He cited, Macfoy Vs. U.A.C. (1962) AC 152 at 160.

He urged the Court to hold that the Respondents did not comply with the mandatory requirements of the Electoral Act, 2006 and Practice Directions, Z007 hence he urged the Court to discountenance in its entirety, the evidence purportedly led by the 1st, 2nd & 3rd Respondents which said evidence was based on their incompetent replies and the evidence elicited in cross-examination from the witnesses for the Respondents as there is nothing on which they could stand.

The appellant referred to paragraph 49(2) of the First Schedule to the Electoral Act, Z006 and submitted that it is not applicable to the instant case. On the consequence of the non-compliance with the requirements of the Act and the Practice Directions, he referred to Hasan Vs. Tumu (1999) 10 NWLR (Pt 624) 700 at 710, 712 and the unreported case of Chuma Vs. Anyakora Appeal No.CA/E/EPT/10/2004 delivered on 4/5/2004. He urged the Court to hold that the case of the Appellant/Petitioner stood unchallenged.

Issue No.2 –

On this, the appellant stated that on the last day of the Pre-Trial Session (5/9/2007), after overruling the Petitioner’s objections, seven of the Petitioner’s witnesses, filed and served on the same day with the petition, which was subsequently brought out from the lower Tribunal registry were struck out because the copies were not in the Tribunal files and the Respondents said they were not served. He referred to pages 54-70 of the Record of Appeal. Consequently, the Petitioner was compelled to testify as the only witness. The appellant contended that the petition was duly filed on 2/5/07. Similarly, he stated that the sworn statements of the Petitioner’s eight witnesses, the list of witnesses, total votes cast in Enugu East Senatorial District election and the list of documents to be relied on during the trial were all duly filed, signed and Certified as True Copies by the Registrar of the Tribunal. He referred to pages 39-70 of the Records. He submitted that the tribunal erred in dismissing the Petition after wrongly excluding the written statements on Oath of the seven Petitioner’s witnesses and thereby reached its decisions in breach of the principle of fair hearing.

The appellant further contended that the principle of fair hearing translates that the Petitioner must be afforded the opportunity to call all necessary witnesses in support of his case. He cited; Mrs. F.O. Apatira & 5 Ors. Vs. Kagos Island Local Government Council (2007) 39 WRN 144. He submitted that the error of the tribunal below in not allowing the Petitioner to call his witnesses was substantial and has resulted in miscarriage of justice. He urged the Court to set aside the judgment of the tribunal. He cited Emeka Nwana Vs. Federal Capital Dev. Authority (2007) 26 WRN 1; Okonkwo Vs. Okonkwo (1998) 7 SCNJ 246; Governor of Gongola State Vs. Tukur (1989) 4 NWLR (Pt 117) 592, Eholor Vs. Osanyande (1992) 1 NWLR (Pt 249) 524.

Issue No.3-

The appellant referred to the Order of the Tribunal sequel to the application exparte of the Petitioner, directed at the 2nd respondent to release only the results in the Enugu East Senatorial District to the Petitioner and for him to be given certified copies of those results. He stated that the Order was settled on the INEC by the bailiff but INEC refused to allow the Petitioner to inspect and reproduce the said results which it claim not to have.

The appellant referred to yet another Order of the Tribunal sequel to his application exparte directing the INEG to allow the Petitioner, his counselor agents unhindered access to inspect, reproduce and for INEC Certification of all the electoral documents as appearing in the schedule attached to the Order. He stated that the said scheduled documents are the documents pleaded in paragraph 20(a) to (k) at pages 9 and 10 of the petition but only as it relates to Enugu East Senatorial District election. INEC still failed to comply with the Order. The appellant referred to a similar Order of the Tribunal he obtained on an Application on Notice which the INEC again failed to comply with.

The appellant, in view of the above, submitted that all the respondents and the tribunal are precluded from relying on the documents in support of the respondents case. He therefore urged the Court to disregard the presumption of the regularity and correctness of the result announced by the 2nd & 3rd Respondents as upheld by the lower tribunal. He submitted further that in law a party who is in possession of a document but failed to produce it will be deemed to have withheld the document because the document will be against him. He referred to Section 149 of the Evidence Act, Cap.112, LFN, 1990. He urged this Court to hold that failure to produce the documents in possession of the INEG meant that the documents are unfavourable to both the 1st, 2nd & 3rd Respondents.

Issue No.4-

This is, whether the Tribunal was right in its refusal to enter judgment in favour of the Petitioner against the 4th – 171st

Respondents for their failure to oppose. The Appellant referred to the judgment of the Tribunal wherein the Appellant’s application for judgment against the 4th – 171st Respondents for failure to defend the Petition was refused. He again referred to the earlier application of the counsel to the 2nd & 3rd Respondents that the names of the 4th-171st Respondent be struck out on the grounds that they were not served in accordance with law and the fact that the said application was not moved but abandoned. He contended that throughout the proceedings, the said 4th-171st Respondents were not represented by counsel and they did not file any reply to the Petition. He submitted that all the allegations made against those Respondents were neither defended nor challenged. He referred to paragraph 47 of the First Schedule to the Electoral Act, 2006 and further contended that there was no evidence before the tribunal to show that the 4th-171st Respondents obtained a written consent of the Attorney General of the Federation before they declined to oppose the petition and there was no evidence that that Attorney General withheld his counsel. The Appellant further referred to paragraph 5(2) of the Practice Direction, 2007 and submitted that the 4th-171st Respondents having failed to defend the petition, the Petitioner is entitled to judgment against them.

Issue No.5 is whether the tribunal was right in its presumption of regularity and correctness of the results declared by the 2nd & 3rd Respondents, having rejected and marked as “tendered but rejected” all the results of the said election tendered by the 1st, 2nd & 3rd Respondents.

The appellant referred to certain results of the election for the Enugu East Senatorial District election held on the 21st April, 2007 that were tendered by the 2nd & 3rd Respondents on the 26th September, 2007 by the Tribunal. Similarly, the appellant referred to the results that declared the 1st Respondent as the winner of the election as tendered by the 1st witness to the 1st Respondent and how it was rejected and so marked by the tribunal. He submitted that as there was no appeal against the ruling of the tribunal that rejected the said results, the said document or the contents thereof cannot be properly used or relied upon in the determination of any issue in the case. He cited, Union Bank of Nigeria. Ltd Vs. Ozigi (1994) 3 NWLR (Pt 333) 385 at 392; Ngige Vs. Obi (2005) 18 WRN 33 at 123; Ita Vs. Ekpenyong (2001) 11 NWLR (PI 695) 619; ACibaie Vs. Adigun (1993) 1 NWLR (PI 269) 261 at 272; Oyelunji Vs. Akanni (1986) 5 NWLR (Pt.42) 461 at 470.

The Appellant further contended that the 1st respondent did not attach any result to his reply and did not even file reply as required by the Electoral Act, 2006 and Practice Direction, 2007. He submitted that failure so to comply is fatal and robbed the 1st, 2nd & 3rd Respondents of the right to adduce evidence in support of the presumption of regularity or correctness of the result declared by the 2nd & 3rd Respondents in favour of the 1stRespondent. He finally on this issue urged the Court to hold that the tribunal erred in law in upholding the 1st respondent as the winner of the Enugu East Senatorial District election held on the 21st April, 2007 and holding that there was a presumption of regularity and correctness of the result declared by the 2nd & 3rd Respondents after the tribunal had earlier rejected all the results of the said election.

Issue No.6-

Whether on the totality of evidence on record, the Appellant/Petitioner was entitled to succeed and be declared the winner of the Enugu East Senatorial District Election held on the 21st day of April, 2007. The Appellant contended that it is a notorious fact that the election was rigged in favour of the 1st Respondent but what is disturbing was the attempt by the 1st, 2nd & 3rd Respondents through their final written addresses to rig the evidence of witnesses during proceedings.

The Enugu East Senatorial District is made up of six Local Government Area, 77 wards and 1,048 Polling Booths. The 1st Respondent did not call any witness from three of these six Local Government Areas, Consequently, appellant contended that the 1st Respondent did not challenge the evidence of the Petitioner in 38 Wards and 642 Polling Booths of three Local Government Areas. The Appellant further contended that the 2nd & 3rd Respondents did not call any witness from three Local Government Areas, and in the same vein, the 2nd & 3rd Respondents did not challenge the evidence of the Petitioner in three Local Government Areas of Enugu North, Enugu South and Nkanu West.

The Appellant submitted that pleadings do not constitute evidence, therefore pleadings not supported by evidence be it oral or documentary are to be deemed by Court as having been abandoned. He cited; Newbreed Organisation Ltd. Vs. Erhomosele (2006) 16 WRN 1 at 17; Miss Ezeanah Vs. Alhaji Atta (2004) 2 SCNJ 200 at 235. He further submitted that the evidence of the Petitioner as contained in his sworn statement which he adopted as his evidence are deemed to have been admitted by the 1st-3rd Respondents. The Appellant contended that where the Respondents refused to adduce evidence in their defence and rests their case on the evidence of the Petitioner, minimum evidence adduced by the Petitioner would suffice to prove his case. He cited; Newbreed Organisation Ltd. Vs. Erhomosele (supra) at page 9; Buraimoh Vs. Bamgbose (1989) 3 NWLR (Pt.109) 352; Olayiwola FRN (2006) 8 WRN 108 at 123.

The Appellant referred to Section 145(1) of the Electoral Act, 2006 on when an election can be questioned and submitted that once the Petitioner was able to establish any of the grounds listed in the above provisions the Tribunal is empowered to grant a consequential relief by virtue of Section 147(2) of the Electoral Act, 2006 and paragraph 27(1) of the First Schedule to the Electoral Act, 2006. He urged the Court to hold that the Appellant obtained majority of the lawful votes cast by the electorates in the Enugu East Senatorial District election held on the 21st day of April, 2007 and ought to have been returned.

Issue No.7-

This is whether the tribunal was right in law when it failed to find that the Enugu East Senatorial District election held on the 21st day of April, 2007 was void on the ground that it was not conducted in substantial compliance with the provisions of the Electoral Act, 2006.

On this, the Appellant contended that, to contradict the Appellant/Petitioner’s case, the 1st, 2nd & 3rd Respondents called witnesses to establish that the 1s1Respondent won the election, including RW1-RW9. But he submitted that these witnesses did not controvert the Petitioner’s case but rather ended up to show that the election results used to declare the 1st Respondent as the winner were not the authentic results that emanated from the Polling Booths. He contended that the evidence of the Respondents’ witnesses are clear indications that the result of the Enugu East Senatorial District election held on the 21st day of April. 2007 as announced by the 2nd & 3rd Respondents were manipulated, manufactured and fabricated and the tribunal below should have nullified it in line with the alternative prayer of the Appellant/Petitioner, on the ground that it was not conducted in substantial compliance with the provisions of the Electoral Act, 2006.

The Appellant made references to the evidence adduced by the Respondents and contended that the evidence given by the Respondents’ witnesses, in its entirety, is a bundle of contradictions. He cited; Idiok vs. State (2006) 39 WRN 46 at 50; Ogoala vs. State (1991) 2 NWLR (Pt 175) 509 at 535. He submitted that the contradiction in the evidence vitiates the proceedings.

The Appellant urged the Court to invoke Section 147(1) of the electoral Act, 2006 and nullify the said election for substantial noncompliance with the provisions of the Electoral Act. 2006. He finally urged the Court to allow the appeal and hold that the Appellant is the winner of the Enugu East Senatorial District Election held on the 21st April, 2007.

In his brief of argument, 1st Respondent before responding to the issues raised in the Appellant’s brief of argument, first observed that no issue for determination was distilled from ground 2 and thereby urged the court to treat the said ground as abandoned.

Furthermore, the Appellant’s Issue No.7 was not distilled from any ground of appeal, hence he urged the Court to discountenance all argument based on the said issue, The learned Senior Counsel to the 1st Respondent, Chief Chris Uche, SAN, however took the Issues seriatim in his response.

Learned Senior Counsel referred to Issue No.1 of the Appellant and submitted that it appeared strange and unusual for a Plaintiff/Petitioner to object to the jurisdiction of the Court or tribunal before whom he has brought his claim or petition. On which party should plead lack of jurisdiction of a court, he submitted that it is the defence. He cited; Judicial Service Commission Vs. Omo (1990) 6 NWLR (Pt.157) 407 at 493.

He referred to the Appellant’s contention on the Replies filed by the Respondents and compliance with paragraph 15 of the First Schedule to the Electoral Act, 2006. He submitted that applicability of the said paragraph was misconceived by the Appellant He referred to the said paragraph 15 which he said is inpari material with paragraph 15 of the First Schedule to the Electoral Act, 2002 which had been given judicial interpretation. He cited; Onwudinjo Vs. Dimobi (2006) 1 NWLR (Pt 961)318. He submitted that paragraph 15 of the First Schedule to the 2006 Electoral Act is not helpful to the Appellant in any way. He submitted that the 1st Respondent’s pleadings satisfied the requirement of paragraph 15 of the First Schedule to the Electoral Act, 2006.

Learned Senior Counsel referred to the 1st Respondent’s Reply paragraph 39 and contended that it satisfied the requirements of the said paragraph 15 of the 1st Schedule to the Electoral Act, 2006 and submitted that the objection to the jurisdiction of the Tribunal on the scores is totally misconceived. He urged the Court to resolve the first Issue in favour of the Respondents but against the Appellant.

On Issue No.2, learned Senior Counsel to the 1s1 Respondent submitted that the tribunal was right in holding that the appellant did not prove that the 1st Respondent was not duly elected by the majority of lawful votes case in the Enugu East Senatorial District Election held on 21st April, 2007. He referred to several paragraphs of the Petition wherein the Appellant had made very grave allegations bothering on crime such as modern day gangsterism, heavy gun fire by thugs, hijacking and diversion of electoral materials, multiple thumb printing of ballot papers etc. but failed to produce any scintilla of evidence in support of any of those allegations. Learned Counsel submitted that a plaintiff or Petitioner is required by law to succeed on the strength of his own case but not to rely on the weakness, if any, of the defence. He cited; Awuse vs. Odili (2005) 16 NWLR (Pt 952) 416 at 500; Nigerian Gas Co. Ltd. Vs. Dudusola (2005) 18 NWLR (Pt.957) 292 at 315; Adelakun Vs. Oruku (2006) 11 NWLR (Pt 992) 625 at 649; Omotosho Vs. Bank of the North (2006) 8 NWLR (Pt.986) 573 at 591; Ashiru Vs. Olukogu (2006) 11 NWLR (Pt 990) 1 at 32.

Learned Senior Counsel submitted further that the burden is on the Petitioner to prove his case and to do so by credible evidence. He cited; Buhari Vs. Obasanjo (2005) 2 NWLR (Pt 910) 241 at 445; Yusuf Vs. Obasanjo (2005) 18 NWLR (Pt.956) 96.

Learned Senior Counsel contended that the Appellant failed to tender any results whatsoever in that the schedule he produced not being result forms were not admitted and he never tendered any Form EC8A or EC7A1 received by his Agents. He submitted that evidence in respect of electoral Forms must not only be led, they must be pleaded and specifically and not generally. He cited; Moahalu v. Notice (2005) 4 NWLR (Pt.914) 1 at 35.

Learned Counsel further contended that the Appellant while challenging the results declared by INEC failed to place before the tribunal the result he considered correct and authentic. He failed to tender either the declared result or his own version, as the manner of proving results is to tender INEC result Forms. He submitted that the failure to tender the result was fatal to the petition as there was nothing to support the Petitioner’s allegations.

Learned Senior Counsel further submitted that to prove falsification of result or inflation of result, the Petitioner was expected to present at least two sets of results. One in respect of the alleged false result, and the other relating to the result the Petitioner considers to be genuine or correct. He cited, GiD Vs. Esohe (1999) 5 NWLR (PI 603) 444 al 452; Obinwunne Vs. Tabansi Okoye (2006) 8 NWLR (PI 981) 104 at 110.

He submitted further that falsification of an election result is a serious crime and this must be proved beyond reasonable doubt. He cited; Oji Vs. Ndu (1993) 1 NWLR (Pt.268) 235; Seikeaba Vs. Penawou (1999) 9 NWLR (Pt.618) 354.

In the same vein, learned Senior Counsel referred to the allegation of thuggery and violent disruption of election and contended that being criminal acts must be proved beyond reasonable doubt. He cited; Wali Vs. Bufarawa (2004) 18 NWLR (Pt.898) 1; Jang Vs. Dariye (2003) 15 NWLR (Pt.843) 461; Yusuf Vs. Obasanjo (2005) 18 NWLR (Pt 956) 96 al 188. And such criminal acts, he further submitted must be linked to with the Respondents. He cited; Owoade vs. Sekoni (1998) 9 NWLR (PI 565) 281 at 286. In otherwords, learned counsel submitted that for the Petitioner to succeed in obtaining relief from his allegation of corrupt practices, it is mandatory for him to establish a linkage between the Respondent and the corrupt conduct on the basis of which the election is sought to be nullified. He cited; Ekpe Vs. Morah (1999) 9 NWLR (Pt 617) 146 at 157, but the Appellant failed to establish this, he concluded.

He urged the Court to resolve Issue No.2 in favour of the Respondents but against the Appellant.

Issue No.3 as formulated by the 1st Respondent is whether the Tribunal was right in rejecting the supplementary witness statements not accompanying the Petition subsequently produced by the Appellant in suspicious circumstances without leave of court and without notice to the Respondents.

Learned Senior Counsel referred to the Petition filed before the Tribunal with only one witness Statement on Oath accompanying the Petition to which no list of witnesses was attached to indicate that the Petitioner had more than one witness to call. However, as the trial was to commence the Appellant announced he had filed list of witnesses and witness Statement on Oath separately. This, the Respondents objected to for non-compliance with paragraph 1(1)(a) and (b) of the Practice Directions, 2007. He submitted that the above provision is mandatory and compliance in compulsory but not permissive.

Learned Senior Counsel further submitted that having been given or afforded the opportunity to file the written statements with his Petition which he failed to do, he can not complain of denial of fair hearing, He urged the Court to hold that the tribunal was in order to reject the use of the written statements.

On the non production of documents for inspection upon a court order on the 2nd Respondents, learned Senior Counsel, submitted that the remedy for or relief against disobedience of Court non compliance with Order of court is for the party in favour of whom the Order was made to set in motion the machinery for the enforcement of such Order in addition to commencing proceedings for committal for contempt of the contemnor.

He submitted that non-production of documents for inspection upon a Court Order by a party does not automatically entitle the other party to judgment or the application of Section 149(d) of the Evidence Act on presumption on withholding of evidence.

On the presumption of regularity of official results as declared by the 2nd Respondent, learned Senior Counsel submitted that the law recognizes a presumption of correctness and regularity of results declared by the 2nd Respondent and it remains authentic until rebutted. He cited; Ezeazodosiako Vs. Okene (2005) 16 NWLR (Pt.952) 612 al 631.632; Onye Vs. Kema (1999) 4 NWLR (PI 598) 198 at 203.

He submitted that the results which INEC declared were already admitted by all the parties in their pleadings. The Tribunal, therefore no longer required the tendering of any documents to uphold the presumption of regularity and correctness.

The Court is urged to hold that the Petitioner/Appellant failed to rebut the presumption and to hold that the Tribunal was right when it held that there is a presumption of regularity and correctness of the results declared by the 2nd & 3rd respondents, and the Appellant did not rebut the presumption by adducing credible evidence.

On whether the Tribunal was right in refusing to enter judgment against the 4th-171st Respondents. Learned Senior Counsel contended that the Appellant failed to establish any case against the substantive Respondents, it was therefore not possible to obtain default judgment against the 4th-171st Respondents who are more or less known agents of the 2nd Respondent. He further contended that the record of the tribunal showed that the said 4th – 171st Respondents were not served with the Petition and that was the reason why the Counsel for the 2nd & 3rd Respondents limited his appearance to the two Respondents who were served, pending the service of the processes on the other Respondents,

He urged the Court to hold that the tribunal was right in refusing to enter judgment against the 4th-171st Respondents and resolve the issue against the Appellant.

On the issue whether the Tribunal was right in dismissing the Petition in the light of the totality of the evidence on record, learned Senior Counsel submitted that the Appellant failed to adduce any credible evidence in support of his averments in his pleadings, He referred to the appellant’s allegation that the election was not conducted in substantial compliance with the provisions of the Electoral Act, 2006, and submitted that the Appellant failed before the tribunal to prove what the substantial breaches were and prove how they substantially affected the results. He referred to Section 146(1) of the Electoral Act. 2006 and cited; Buhari Vs. Obasanjo (2005) 13 NWLR (Pt.941) 1 at 310.311.

He finally urged the Court to hold that the tribunal was right in dismissing the Petition in the light of the totality of the evidence on record and in coming to the conclusion that the election was conducted in substantial compliance with the provisions of the Electoral Acl, 2006. He further urged the Court to dismiss the appeal for lacking in merit.

As I slated earlier, the 2nd & 3rd Respondents upon their receipt of the Appellant’s brief of argument filed their joint Respondents’ brief of argument and in it formulated the following five issues from the Grounds of Appeal contained in the Notice of Appeal filed in this Appeal. The said Issues are:-

(i) Whether Respondents replies were competent and worthy of consideration.

(ii) Whether the Tribunal breached the Appellant’s right to fair hearing by not considering the evidence of witnesses whose statements on Oath were not filed with the petition and not listed as witnesses.

(iii) Whether Section 149(1) of the Evidence Act is the remedy for non compliance with Order of Court for petitioner to access documents he does not have copies of.

(iv) Whether default judgment can enure in favour of petitioner against agents of represented respondent.

(v) Whether the Petitioner proved his case and was Entitled to Judgment.

The above Issues which are very similar to those of the 1st Respondent were argued by the learned Counsel to the 2nd & 3rd Respondents in line with the argument of the learned Senior Counsel to the 1st Respondent. He urged the Court to resolve all the Issues in favour of the respondents but against the Appellant and finally urged us to dismiss the Appeal for lacking in merits.

The Appellant filed a reply brief to the 1st, 2nd & 3rd Respondents’ brief of argument on points of law. Reference will be made to the said reply, if need be, in the judgment. Before I proceed further in this judgment I believe I should mention it right here and now. As earlier slated, there are right (8) Grounds of Appeal from which the seven (7) Issues for determination were purportedly distilled. However, there is nowhere in the brief of argument of the Appellant where the Issues are linked or connected to the Grounds of Appeal. In other words, there is no indication from which Ground of Appeal any of those 7 Issues was formulated. It has been held by the apex Court that it is very necessary and indeed desirable for the Appellant’s Counsel to always relate or tie or link the Issues formulated or distilled for determination in the Appellant’s brief of argument to the grounds of appeal from which the said issues are distilled. This is to show clarity, precision and accuracy of the brief of argument, which constitute essential qualities of a good brief. The result is that any brief that is lacking in the three requirements may not allow the Court appreciate what exactly the Appellant or even the respondent is seeking the Court to resolve. See; Ntoe Andrew O. Ansa & 3 Ors, Vs. Chief Asuauo Achibona Ishie & 16 Ors. (2005) 8 SCM 34.

However, in the interest of justice and in a bid to do substantial justice to parties, failure to link or tie the issues formulated to the grounds of appeal may not be allowed to necessarily lead to or result in the issues being struck out for lacking in competence. This will be so, in particular, where the Court considers the issues on a close look on the grounds that the issues or some of them can validly be distilled from the listed grounds of appeal. Generally, in carrying out its preoccupation of doing substantial justice between the parties, the Court would consider the issues in its judgment. See; Alimi Akanbi Dada Vs. Chief Jonathan Dosumu (2006) 12 SCM (Pt.2) 108 at 120.

It is settled already that the Court is entitled, not being under a regimental duty to take all the issues canvassed by the parties in an appeal, to formulate or reformulate issue or issues formulated by a party or parties for the determination of an appeal, in order to give it precision and clarity. See; Okoro vs. The State (1988) 12 SC 191, (1988) 12 SCNJ 191; Latunde & Anor. Vs. Bella Lajunfin (1989) 5 SC 59, (1989) 5 SCNJ 59; Lebile Vs. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria Ugbobla & 3 Ors. (2003) 2 SCM 39. (2003) 1 SCNJ 463. The purpose of reframing issues formulated is principally to enable the Court reach a more judicious and proper determination of the appeal. See; Unity Bank Plc. & Anor. Vs. Edward Bauari (2008) 2 SCM 193.

In other words, an appellate Court can prefer an issue or issues formulated by any of the parties and can itself and on its own formulate issues which it considers are germane to and pertinent in the judicious determination of the matter in controversy. See; Emeka Nwana Vs. Federal Capital Development Authority & 5 Ors. (2004) 12 NWLR (Pt 889) 128 at 142-143, (2004) 7 SCNJ 90 at 99, (2004) SCM 25, Chief 5.0. Agbareh & Anor. Vs. Dr. Anthony Mimm v. Ors. (2008) 2 SCM 55 at 71.

In the judgment of the Election tribunal being appealed against, the following issues were identified by the tribunal upon which it based its judgment.

“(i) Whether the 1st Respondent was not qualified to contest election into the Senate to represent the Enugu East Senatorial District of Enugu State.

(ii) Whether the Petitioner has prove (sic) that the 1st Respondent was not duly elected by the majority or valid votes cast at the Enugu East Senatorial District election held on the 21st day of April, 2007.

(iii) Whether the Petitioner obtained a majority of the lawful votes cast by the electorate in the Enugu East Senatorial District election held on the 21st day of April, 2007 and ought to have been returned; and

(v) Whether the Petitioner is entitled to judgment against the whole Respondents or any set of them.”

As earlier stated, all the above issues were considered by the tribunal and were resolved against the Petitioner, as a result of which the entire petition was dismissed.

Generally, the court is not obliged to accept issues for determination as formulated by the Appellant in his brief of argument;

See; NEKA Ltd. Vs. A.C.B. (2004) 17 NSCQR 240 at 250-251. In my view, considering the judgment of the tribunal appealed against and the Grounds of Appeal contained in the Notice of Appeal, the following are the Issues I consider germane and crucial for the determination of the appeal, and to resolve the matter in controversy.

(i) Whether the Tribunal was competent or has jurisdiction to entertain the Appellant’s Petition, considering the evidence proffered by and or elicited from the 1st, 2nd, & 3rd Respondents witnesses.

(ii) Whether the Appellant was denied right to fair hearing by the Tribunal in the hearing of his petition.

(iii) Whether the Tribunal was right in holding that the Appellant failed to prove that the 1st Respondent was not qualified and was not duly elected by majority of lawful votes cast in Enugu East Senatorial District election held on 21st April, 2007.

(iv) Whether the Tribunal was right in its refusal to enter judgment in favour of the Petitioner/Appellant against the 4th-171st Respondents in the circumstances of this case.

(v) Whether in the light of the totality of the evidence on record, the Tribunal was right in dismissing the Petition in its entirely.

On Issue No.1 above, it is pertinent to state here again that the Appellant herein was the Petitioner before the tribunal, who raised objection to the competence of the tribunal. The Appellant in his brief of argument had submitted that from the pleadings and the totality of evidence led, the lower tribunal lacked the jurisdiction to determine the issues in dispute in the petition by considering the evidence proffered by and or elicited from the 1st, 2nd & 3rd Respondents witnesses.

There is no doubt, and it is trite law that issue of jurisdiction can be raised at any stage of the proceedings. It can even be raised for the first time on appeal. See: Pan Asian Co. Ltd Vs. Nicon (1982) 9 SC 1; Tukur Vs. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517; C.G.G. (Nig) Ltd. Vs. Omokhage & Drs. Vs. Military Administrator, Edo State of Nigeria & Ors. (2004) 9-12 SCM (Pt.2) 206 at 219.

As to who is the proper party to raise the issue of absence of jurisdiction in Court, to hear a matter brought before it, indeed, the duty is not directly placed upon a particular party, or the defendant in a proceeding. But from experience and in practice it is always the defendant who raises it. The Court itself can and often raises the question on jurisdiction suo motu. See; Adesanya vs. President (1981) 1 NCLR 288; Omokhafe & Drs. Vs. Milad, Edo State & Drs. (Supra) at 214.

In this case it is the competence of the Election Petition Tribunal that is being challenged by the appellant. What then is Jurisdiction? Jurisdiction of a Court or Tribunal properly constituted is judicially defined as, “a commodity” in the judicial process. It is the fulcrum, centerpiece, or the main pillar upon which the validity of any decision of court stands and around which other issues rotate. It cannot be assumed or implied, It cannot also be conferred by consent or acquiescence of parties.” See; Halsbury’s Laws of England, 4th Edition para. 715 P.323; Shell Petroleum Development Co. Nigeria Ltd. Vs. Isaiah (2001) 5 SC (pt.11) 1, (2001) 7 SCM 143; Attorney General of the Federation Vs. Sode (1990) 1 NWLR (Pt 126) 500 at 541; Okolo Vs. Union Bank (Nig.) Plc. (2004) 1 SC (Pt 1) 1; (2004) 2 SCM 180; Ifeanvichukwu Okonkwo Vs. Dr. Chris Neice & Drs. (2007) 12 SCM (Pt 2) 507 at 521.

Further more, judicial jurisdiction is defined as the legal power and authority of a court to make a decision that binds the parties to any mailer properly brought before it. See; Black’s Law Dictionary 8th Edition, page 869. Jurisdiction is said to have the almighty power in our adjectival

law as it has the capacity an strength of a bulldozer in the sense that a successful plea of lack of it can bring to naught the entire proceedings of the Court, however ably handled or concluded. See; Ugo v. Okafor (1996) 3NWLR (Pt 438) 542.

Generally, Courts and tribunals are creation of constitution and their jurisdiction is conferred by the same Constitution or other enabling statutes or authority.

In the instant case, the Constitution of the Federal Republic of Nigeria, 1999 which created the Election Petition Tribunals reads thus:-

‘There shall be established in each Slate of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or a member of any Legislative house.”

As shown earlier in the judgment, amongst the grounds for filing the petition which has led to this appeal are; that the 1st respondent was not qualified to contest the election and that he was not duly elected by the majority of lawful and or valid votes cast at the election and that the election was fraught with irregularities. By his petition the Appellant had invoked the jurisdiction of the Election tribunal to look into his complaint about the declaration made by the 2nd & 3rd Respondents by which the 1st Respondent was declared the winner of the election into the Enugu East Senatorial District seat of 21st April, 2007.

When then can a court or tribunal be said to be competent to adjudicate over a matter? This has long been settled: A court is competent when:

(i) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another:

(ii) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and

(iii) the case comes before the court or tribunal initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

The reason being that, any defect is fatal, for the proceedings are nullity, however well conducted and decided, the defect is extrinsic to the adjudication. See; Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; (2001) 46 WRN 1, (2006) 2 LC 208; Mark Vs. Eke (2004) 5 NWLR (Pt 865) 54; Cotecna International Ltd. Vs. Ivory Merchant Bank Ltd. (2006) 9 NWLR (Pt 985) 275. It is settled law, that in order to determine whether a Court has the requisite jurisdiction to entertain a matter before it, the process or document the Court has the duty to look at is the Statement of Claim or content of a petition or the affidavit in support of an Originating Summons, as the case may be, See; Adeyemi Vs. Opeyori (1976) 9.10 SC 31, A.G of Anambra (2007) 12 SCM (Pt.1) 1 at 45; Alphonsus Njuma Vs. Joseph O. Odili (2006) 4 SCM 127 at 143.

In the instant case, it is the relief sought in the petition before the Tribunal that must be considered to determine whether the tribunal had the requisite competence or jurisdiction to adjudicate on the petitioner’s reliefs as it did.

Applying the above to the instant case, I am satisfied that the conditions precedent to enable the tribunal assume jurisdiction on the petition were present. The Election tribunal therefore properly adjudicated on the Petition, as the complaint on the competence of the tribunal by the Appellant is baseless and not sustainable. Accordingly, the issue on jurisdiction of the tribunal is resolved against the Appellant.

The second issue is whether the Appellant was denied right to fair hearing by the Tribunal in the hearing of his Petition. On this, the appellant had contended that the tribunal wrongly excluded the sworn statements of his witnesses/agents.

The law is that “in the determination of his civil rights and obligation, 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.” See; Section 36(1) of 1999 Constitution of the Federal Republic of Nigeria.

In our Courts, “fair hearing” has been interpreted to be synonymous with fair trial and as implying that every reasonable and fair minded person observing the trial and watching the proceeding should be able to come to the conclusion that the Court or other tribunal has been fair to all the parties concerned. See; Mohammed Vs. Kano N.A. (1968) 1 All NLR 424 at 426.

However, the following are some of the basic criteria and attributes of fair hearing:

(i) that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See; Sheldon Vs. Bromfield Justices (1964) 2 QB. 578,

(ii) that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See; Adegun Vs. Attorney General, Oyo State & Ors. (1987) 1 NWLR (pt 53) 678, that the proceedings of the court or tribunal shall be held in public and all concerned shall have access to and be informed of such a place or public hearing and;

(iii) that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: See; R v. Susses Justices, Exparte Mc Carthy (1924) 1 KB 256 at 259; Deduwa & Ors, Vs. Okorodudu (1976) 10 SC 329.

In other words, fair hearing in the con of Section 36(1) of the 1999 Constitution as stated above encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice maxim of “audi alteram partem” and “nemo judex in causa sua”, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. See; Nathaniel A.B. Kotoye Vs. Central Bank of Nigeria & Ors. (2000) 16 WRN 71 at (2006) 2 LC 625 at 669.

In the instant case, the Appellant had stated that he was made to testify alone on his petition because his other seven witnesses or agents were not allowed to be called to testify. It is note worthy that the Appellant conceded that the sworn statements of his said agents, though he claimed were duly filed, were not in the tribunal’s files and nothing to prove that the respondents were served with the said processes. It is settled that the Courts are bound by thy records but no other. As a result, the tribunal could not have been expected to rely on documents that were not in their files. Moreso, when the other parties responding in the case said they were not served with the said statements of the witnesses. I am sure that the Appellant is aware that more was needed to have been done by him in that respect. There was no dispute that the petition itself was served on all parties concerned and the said statements on oath of witnesses were expected to have been duly filed and served with the petition but this did not happen. The blame should therefore not be passed to the tribunal or registry of the tribunal.

Fair hearing indeed and in essence means giving equal opportunity to the parties to be heard in the litigation before the court or tribunal. Therefore, where parties are given opportunity to be heard, they are barred from complaining of breach of fair hearing principles. It is on record that the Petitioner testified and tendered certain documents which he claimed he obtained from his agents, though or the reason of inadmissibility were rejected. See; INEC & Anor. Vs. Alhaji A.B. Musa & Ors 2 CLC 471 at 529 (2004) 1 EAC 145 at 199. The Appellant has therefore not shown that he was denied of fair hearing by the tribunal. Accordingly, the second issue is resolved against the appellant.

The third issue is whether the tribunal was right in holding that the Appellant failed to prove that the 1st Respondent was not duly elected by majority of lawful votes cast in the Enugu East Senatorial District election held on 21st April, 2007. This issue is better taken together with the other issues (iv) and (v) as they are interrelated. As I stated earlier, the grounds on which the Appellant challenged the return and declaration of 1st Respondent are that the 1st Respondent was not qualified to contest the said election; and that the election was fraught with irregularities. In its judgment at pages 485-486 of the record, the tribunal had this to say:

“We have observed that the paragraphs in the petition dealing with rigging of the election. multiple thumb printing of ballot papers, hijacking of electoral materials, modern day gansterism and heavy gun fire by agents of the 1st Respondent who were thugs, removal of all the result sheets for the said election, forgery of the result of the Enugu East Senatorial district by the 1st Respondent and his agents, and diverting and commandeering of election materials to the residential mansion of the 1st respondent, no doubt involve criminal allegations which must be proved beyond reasonable doubt. We have hitherto specifically identified these paragraphs of the Petition at the beginning of this judgment.

……………………………………………………

……………………………………………………

Apart from reproducing these paragraphs, hook, line and sinker in his Statement on oath, the Petitioner made no attempt to substantiate the averments in these paragraphs with credible and legally acceptable evidence.”

It is note worthy that in the Petition at paragraph 10, the Petitioner had alleged that the 1st Respondent was not qualified having been indicted for grave criminal offences. In his words, he stated as follows:-

“10. The 1st Respondent was at the time of the election, not qualified to contest the election, having been indicted for grave and gross corruption by the Economic and Financial Crime commission, EFCC and the Code of Conduct Tribunal for false/non-declaration of His assets (also See Case No.FHC/C/CS/330/07, etc) hence the 1st Respondent is now at large and the petitioner will be requesting for the physical appearance of the 1st Respondent during the trial.”

On the above, the tribunal had found as follows:-

“There is no credible evidence in support of this averment adduced by the Petitioner. The Petitioner merely reproduced this averment in his Written Statement on oath without producing any documentary evidence to prove the alleged indictment by the Economic and Financial Crimes

Commission (EFCC) and the Code of Conduct Tribunal. The legal position is that a person can only be indicted by a court of competent jurisdiction as opined by the Supreme Court in the case of ACTION CONGRESS VS. INEC (2007) 10 MISC 1.

In the absence of any documentary evidence of his indictment by a Court of competent jurisdiction, it would not lie in the mouth of the Petitioner to say that the 1st Respondent was, at the time of the election not qualified to contest election into the Senate to represent the Enugu Ease Senatorial District of Enugu State.”

Firstly, as shown above, it was alleged and pleaded by the Petitioner that the 1st Respondent was not qualified to stand and contest the election as he did having been indicted for criminal offences. Was this allegation proved by the Petitioner? An indictment has been held to be mere accusation. In Sokefun Vs. Akinyemi (1980) 5-7 SC (Reprint) 1; (1981) 1 NCLR 135, the Supreme Court, per Fatayi-Williams, CJN stated al P.146 thus:-

“It seems to me that once a person is accused of a criminal offence, he must be tried in a Court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing No other Tribunal, investigating Panel or Committee will do …

See; Rt. Hon. Rotimi Chubuike Amaechi Vs. INEC & Ors. (2008) 1 SCM 26.

From the record, it is clear that there was no evidence that the 1st respondent was tried and found guilty of any criminal offence by a court of law to have disqualified him from contesting the said Enugu East Senatorial District election in April, 21st 2007.

It is trite and settled that only the trial and conviction by a competent court is constitutionally permitted to prove guilt of a person alleged of or charged with any criminal offence.

In Amaechi Vs. INEC & Ors. (Supra) at P.187.188 per Aderemi, JSC it was held as follows:-

“For the accusation of a criminal offence to be successfully levied against a person, such an offence, ordinarily must be established before an impartial court of law. The cardinal principle here is that once a person is accused of a crime and once the adjudicating body is anything less than a judicial body vested with criminal jurisdiction, the person so subjected to that trial before that body is as good as not having undergone any criminal trial. No matter how well conducted the trial might be, its verdict is null and void and can never foist a conviction or sentence, known to law, on the person.”

See also; Federal Civil Service Commission Vs. Laoye (1990) 2 NWLR (Pt.106) 652; Garbe Vs. University of Maiduguri (1986) 1 NWLR (Pt 18) 550; Unthumb Vs. Nnoli (1994) 8 NWLR (PI 363) 376.

Similarly, the various allegations raised in the Petition against the 1st Respondent and his agents are criminal offences which required to be proved beyond reasonable doubt to be able to upturn and invalidate the election and return of the 1st Respondent in the 21st day of April, 2007 election. Indeed, there was no evidence at all called by the Petitioner, much more, credible evidence, to prove the allegations of thurgry, rigging, gun firing etc.

Furthermore, there were allegations of non-compliance with the provisions of the Electoral Act, 2006 by the Respondents. The Appellant contended that the 1stRespondent did not even file reply as required by the Electoral Act, 2006 and Practice Direction, 2007.

It is settled law that in determining whether or not an election was conducted substantially in accordance with the Electoral Act, the Court is to look at the circumstances of the case, including the state of the pleadings, Therefore the burden of proof is on the Petitioner to adduce sufficient evidence of non-compliance and then clearly show that the non compliance did infact substantially affect the result of the election. See; Eriobuna Vs. Ezeife (1992) 4 NWLR (Pt 2360 417; Akinfosile Vs. Ajose (1960) 5 FSC 192.

It is noteworthy that the Petitioner did not show by credible evidence how failure to attach result to the reply of 1st Respondent has affected the outcome of the Petition, to have led the Tribunal to hold that the 1st Respondent was not the winner of the said election.

It is trite law that mere averment in a pleading or petition as the case may proves nothing at all, if it is not supported by credible evidence, be it oral or documentary, unless such averment is clearly admitted by the opposite party. See; Nkuma Vs. Odili (2006) 4 SCM 127 at 139.

In other words, averments in pleadings on which no evidence is adduced are deemed to have been abandoned as mere averments without proof of the facts pleaded do not constitute proof of such facts unless such facts are admitted. See; Woluchem Vs. Gudi (20040 3 WRN 20; (1981) 5 SC 291, (1981) 12 NSCC 216, Basheer Vs. Samuel (1992) 4 NWLR (236) 491; Adegbite Vs. Ogunfaolu (1990) 4 NWLR (pt 146) 578 at 590; FCDA Vs. Naibi (1990) 3 NWLR (Pt.138) 270 at 281, (1990) All NLR 475; Joseph Ifeta Vs. Shell Petroleum Dev. Co. Ltd. (2006) 32 WRN 1 at 22, (2006) 5 SCM 35 at 44.

The case of the appellant as shown earlier as contained in the Petition was not supported by evidence. The averments in the pleadings remain lifeless and are hereby deemed abandoned. Moreover, the appellant has complaint against the refusal of the tribunal to enter judgment in favour of the Petitioner against the 4th-171st Respondents. The Petitioner had contended that they failed to defend the petition.

It is not in doubt that the 4th-171st Respondents were employed by the 2nd Respondent and were more or less the agents of the 2nd Respondent who is statutorily saddled with the responsibility of conducting election. From the record and in the petition, the complaints are mainly against the 2nd & 3rd Respondents. What is more, there is no proof that the originating process of the petition was served on the said 4th to 171st Respondents to make them react to the petition and answer to complaint (if any) against them.

It is trite that service of process is fundamental to grant the court competence to adjudicate on a matter involving a party who is not served. In other words, where service of process is required, failure to serve such process is a fundamental vice and the person affected by the order but not served with the process is entitled to ex debito justitiae to have the order set aside as a nullity. See HRH Eze Dr. Frank Adele Eze Vs. Godfrey Chizieze Ogbonda (2006) 12 SCM (Pt.2) 189 at 212; .

Therefore, the tribunal was right in its refusal to enter judgment against the 4th to 1718t Respondents in favour of the Appellant. To have done otherwise would have rendered the tribunal’s judgment against the parties that were not served with the initiating process of the case, a nullity, null and void.

On the whole, it is clear that the Appellant did not prove that the 1st Respondent was not duly elected by the majority of lawful votes cast in the Enugu East Senatorial District Election held on 21st April, 2007. It is trite law that he who asserts must prove the assertion.

Civil suits are decided on preponderance of evidence. The Appellant therefore failed to discharge the onus the law placed on him to prove his assertion in the petition. See: Sections 135(1) and 137(1) 41 Evidence Act Cap. 112, 1990; Elias Vs. Omo Bare (1982) 5 SC 25; Imama Vs. Robinson (1979) 3-4 SC 1; Col. Ayanru Vs. Mandilas Ltd. (2007) 7 SCM 1 at 16; Hilary Farms Ltd. & Ors. Vs. MN Mahtra & Ors. (2007) 12 SCM (pt 1) 157 at 174.

In other words, the appellant has failed totally to prove that he was entitled to judgment at the tribunal. From the totality of the evidence on record, the tribunal was therefore right in dismissing the Appellant’s petition in its entirety.

In the circumstance, all the issues distilled from the Grounds of Appeal are hereby resolved against the Appellant. The appeal therefore fails and is accordingly dismissed.

The decision of the National Assembly Governorship & Legislative Houses Election Petition Tribunal Holden at Enugu, given on 13th November, 2007 upholding the return of the 1st Respondent is hereby affirmed.

There shall be costs of N30,000.00 in favour of the 1st Respondent only and no costs to the 2nd & 3rd Respondents,

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Other Citations: (2008)LCN/3080(CA)