Peoples Democratic Party & Anor. V. Hon. Christopher Abari & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
ALFRED P. EYEWUMI AWALA, J.C.A.
This is an appeal against the Judgment of the Governorship and Legislative House Election Tribunal, sitting at Makurdi, Benue State (Hereafter referred to as “the tribunal”) delivered on 30/11/07, The Appellants herein were petitioners before the Tribunal while the Respondents herein were before the Tribunal Respondents.
The parties contested the election held on 14/4/07 in Nigeria nationwide under the platforms of the Peoples Democratic Party (PDP) and the All Nigeria peoples Party (ANPP) respectively amongst two other registered political parties namely Action Congress (AC) and Democratic People Parties (DPP).
At the end of the election the results declared were as follows:-
ANPP scored 16313 votes, while PDP and its candidate scored 12,456 votes inter alia. As such the 1st Respondent was duly declared the winner and returned accordingly by the 3rd Respondent (INEC).
Aggrieved, the Appellants filed a joint election petition no. BE/EPT/HA/02/07 at the Tribunal on the following Grounds:- (1) That the election was invalid by reason of noncompliance with the provisions of the electoral Act, 2006.
(2) That the 1st Respondent was not duly elected by a majority of lawful votes cast at the said election.
(3) That the election was inconclusive, as voting did not take place and lawful votes cast in some units where voting took place were omitted, and these have substantially affected the results of the election.
The 1st Respondent filed his reply to the petition on 25/5/07. The 3rd to 7th Respondents filed their joint reply on 30/5/07 and the 2nd Respondent filed his reply on 31/5/07.
The Appellants filed a reply to the new issues raised by the 3rd to 7th Respondents in their reply to the petition on 8/6/07. There were pretrial Sessions. Hearing the petition proper stated on 18/7/07 and ended on 29/9/07, Judgment was delivered on 30/11/07 dismissing the petition.
On 15/12/07 a Notice of Appeal was filed by the Appellants initially raising two grounds but this was later amended by the order of this Court and a new ground of Appeal was filed on 12/5/08 with six grounds of Appeal. Four issues distilled by the Appellant therefrom for determination by this Court as follows:-
Issue one
“Whether the Appellants proved the case of non compliance with the Electoral Act, 2006 in respect of Bar and Fiidi wards substantial enough to warrant the nullification of the election in Makurdi South Constituency” (Based on Grounds 2 and 3)
Issue Two
“Whether the tribunal was right to strike out ground 3 of the petition ,on the premise that it was not covered by Section 145 of the electoral Act, 2006” (Based on Ground 4).
Issue Three
Whether the Tribunal did not descend into the arena of the dispute when it suo motu went into a mathematical calculation to determine the number of votes cast at the election (Based on ground 5)
Issues Four
Whether or not the tribunal evaluated the evidence adduced in the petition before it reached its decision dismissing the same (Grounds 1 and 6).
On the other hand, the 1st and 2nd Respondents raised three issues for determination namely:
(1) Whether the election conducted in Bar and Fiidi wards in the Makurdi South Constituency of Benue State on 14/4/07 was substantially in compliance with the Electoral Act 2006 (Based Grounds 2, 3, 5 and 6).
(2) Whether on the evidence the 1st and 2nd Respondents did not score a majority of lawful votes (Grounds 1).
(3) Whether Ground 3 of the petition was a complaint having regard to S.145 of the Electoral Act 2006 (Ground 4).
The 3rd to 7th Respondents’ learned counsel did not couch issues for determination but adopts the issues raised by the 1st and 2nd Respondents which I also adopt for the determination of this appeal.
I consider the arguments of the Appellants counsel first, which is as follows:-
Issue, one, the Appellants submitted that they have proved on a balance of probability before the tribunal that the conduct of the election in Bar and Fiidi wards was not in compliance with the Electoral Act 2006. That this fact substantially affected the result of the election to the disadvantage of the Appellants. Counsel referred to page 7 of the record and submitted further that the petition, it must be borne in mind was predicated on three grounds. The 1st of which reads:-
“That the election was invalid by reason of non-compliance with the provision of the Electoral Act 2006.”
In support of the above ground, the petitioners/Appellants submitted that they pleaded in paragraphs 17, 18, 19, 20, 21, 22 and 23 how the elections in Bar and Fiidi wards were wrongful and was not in compliance with provisions of the Electoral Act 2006. How such non-compliance affected the entire result in both wards to their disadvantage as the petitioners. For example, paragraphs 17, 21 and 22 read as follows:-
“17 At the bar council ward consisting of 23 polling units, the 3rd Respondent through the 4th and 7th Respondents failed and or refused to supply the statement of result forms (EC8A(1) to its agents at the said polling units before the commencement of voting at 8 am. The 4th Respondent asked the Presiding Officers to enter the results from their units on pieces of papers pending when results sheets of (EC8A(1) will be supplied. ”
“21 In Fiidi council ward, at the end of voting on 14/4/07, the 1st petitioner polled the highest number of lawful votes cast in the ward. The results from all the polling units that make up the ward where voting took place where counted in the presence of the political parties Agents, duly recorded in form EC8A(1) and signed by the said agents and submitted to the 6th Respondent at the ward collation centre. The results of the collation were as follows:-
- AC candidate – 813
- ANPP Candidate – 3619
- DPP candidate – 226
- PDP candidate – 4174
All the result sheets (forms EC8A(1) shall be relied upon at the hearing of this petition and notice is given to the 3rd Respondent to produce the same.
22 At the said ward collation centre, the 3rd Respondent through the 6th Respondent tampered or altered the results from Achar Ingbian and Shingu Bongo polling units where the 2nd petitioner scored 663 votes as against the 1st Respondent’s 95 votes respectively without lawful reason. The polling units are dominated by supporters of the 1st petitioner.”
That moreover, the 3rd to 7th Respondents admitted in paragraph 16 of their Reply that the results were not returned in 10 out of the 23 polling units in Bar ward (refers us to page 50 of the records).
That in the course of his evidence, DW7, a staff of the 3rd Respondent (INEC), in his statement on oath affirmed that the results from 10 out of 23 polling units in Bar were not returned. In his reply under cross examination he asserted that each unit is made up of 1000 voters and confirmed that results from 10 out of 23 polling units in Bar ward were not announced is approximately 10,000 votes.
DW4 confirmed the evidence of DW7 above.
As for Fiidi two units namely Ingbian and Shungu Bongu polling units voting were high but was it not announced.
The evidence of PW4 also attested to that fact. So did 3rd to 7th Respondents in paragraph 11 and 12 of their reply. They also confirmed that election was not held in those units in Fiidi ward. DW7 under cross-examination confirmed that out of the 38 polling units in Fiidi ward election results were not returned in 4 polling units.
The above pleadings and testimonies, counsel submits, were not responded to by the 1st and 2nd Respondents that amounts to the admission of the non collation and announcement of all the, results in the election in Bar and Fiidi wards and therefore there is no need for further proof. That they are deemed proved.
He referred to S.75 of the Evidence Act thus:-
“No fact need to be proved in any civil proceedings which the parties thereto or their agents agree to or admit at the hearing ”
Having therefore shown that the 3rd Respondent did not collate and declare the results in the said polling units, the burden of proving the contrary shifted to the 3rd Respondent. Cites Kingibe V Maina (2004) FWLR (Pt. 191) 1555 at 1603 where the Court of Appeal held as follows:-
“In civil cases, the onus of proving a-particular fact lies on the party asserting it. This is, usually determined by the pleading of the parties and the evidence that will be adduced in support of the pleadings. That onus is not static and shifts. It is on the party who will fail if such evidence is not adduced.”
The evidence of PW4 also attested to that fact. So did 3rd to 7th Respondents in paragraph 11 and 12 of their reply. They also confirmed that election was not held in those units in Fiidi ward. DW7under cross-examination confirmed that out of the 38 polling units in Fiidi ward election results were not returned in 4 polling units.
The above pleadings and testimonies,’ counsel submits, were not responded to by the 1st and 2nd Respondents that amounts to the admission of the non collation and announcement of all the results in the election in Bar and Fiidi wards and therefore there is no need for further proof. That they are deemed proved.
He referred to S.75 of the Evidence Act thus:-
“No fact need to be proved in any civil proceedings which the parties thereto or their .agents agree to or admit at the hearing …”
Having therefore shown that the 3rd Respondent did not collate and I declare the results in the said polling units, the burden of proving the contrary shifted to the 3rd Respondent. Cites Kingibe V Maina (2004) FWLR (Pt. 191) 1555 at 1603 where the Court of Appeal held as follows:-
“In civil cases, the onus of proving a particular fact lies on the party asserting it. This is usually determined by the pleading of the parties and the evidence that will be adduced in support of the pleadings. That onus is not static and shifts. It is on the party who will fail if such evidence is not adduced.”
Other cases cited in support of the above proposition are Basheer V Same (2003) 1 WLRN 59 and Dashe V Bawa (1989) NEPLR 71.
Arguing further, Appellants’ counsel submitted that since the nature of the non-compliance (unlawful omission of votes) was intended to give the 1st and 2nd Respondent advantage such non-compliance, counsel submitted, is substantial.
Cites Kingibe V Maina (supra) where again this Court of Appeal held:-
“If the nature of non-compliance is such as to give obvious advantage to one or the other the non-compliance is substantial and unless there is evidence to the contrary…”
Therefore, that the non-collation and announcement of all the results of the election in Bar and Fiidi wards amount to substantial noncompliance. The tribunal ought to have so held and invalidate the election on the issue of non-compliance. Cites Igodo V Owulo (1999) 5 NWLR (Pt. 601) 70 at pages 78 – 79 of; Ray.V Maduabu (2004) All FWLR (Pt. 310) 1637.
That going by the evidence of DW7, counsel argued, that the registration per unit being about 1000 per unit, 10 polling units in Bar and 4 polling units in Fiidi averaged 14,000 which were not collated and announced by the 3rd Respondent and ignored. This greatly affected the election one way or the other in the constituency as a whole.
That the omitted results as shown in paragraph 19 at pages 5 and 6 of the records clearly showed that the Appellants scored 1572 votes as against 242 votes scored by 1st and 2nd Respondents.
Finally Counsel submitted that the tribunal having failed to nullify the result of the election as required by law, we are urged to do so and resolve issue one in the affirmative and in favour of Appellants and against the 1st and 2nd Respondents.
Before the resolution of issue one, one way or the other, it is the law to appraise the argument of the 1st and second Respondents’ learned Counsel next See Mogaji V Odofin (1978) 4 SC 91.
It is worthy of note that only the 1st and 2nd Respondents proffered arguments in their- brief of argument filed 17/10/08. The 3rd to 7th Respondents did not, they merely supported the argument of the 1st and 2nd Respondents’ counsel. I now treat the arguments of the 1st and 2nd Respondents in response to the above arguments.
The learned Counsel for the 1st and 2nd Respondents submitted that the Appellants’ complaint at the trial tribunal was based mainly on the following facts:-
(1) That the results from 10 out of the 23 polling units in Bar ward were excluded in the collation of result at the collation centre.
(2) That the results of 2 units in Fiidi ward were rejected by the 3rd Respondent (INEC), because they were not on EC8A(1) FORMS. That the Presiding Officers advised Respondents agents to record same on piece of paper. That paragraph 19 of the petition pleaded those facts which they stated would be relied on and tendered at the trial. This was not to be so to the point that the tribunal lamented as follows:-
“Unfortunately, the petitioners have failed to produce or tender the results said to have been entered in pieces of papers given to their agents.” (See page 214 of the records)
Counsel argued further that apart from the failure of the Appellants tender or produce the result of those 10 polling station results of Bar as pleaded in paragraphs 19 of the petition in pieces of paper none of the 10 presiding officers, whose conduct was the subject of the above complaints were joined, contrary to the mandatory provisions in S.144(1) of the Electoral Act, 2006. This, counsel argued, is fatal to the case of the appellants.
In respect of Fiidi Ward, the Appellants’ grouse was limited to 2 polling units later beefed up to 4 by the tribunal.
I hold straight away, that those presiding officers whose conducts are disputed by the Appellants should have been joined as Respondents, otherwise are in breach of their right to fair hearing. See generally Section 216 of the constitution of the Federal Republic of Nigeria 1999 and the following cases:
Green V Green (1987) 3 NWLR (Pt. 61) 480; Yakubu V Govt of Kogi State (1995) 8 NWLR (Pt. 414) 386; Babayeju V Ashanu (1998) 9 NWLR (Pt. 567) 546; Oganau V Awulor (1997) 9 NWLR (Pt. 522) 668 and Okoli V Ojiakor (1997) 1 NWLR (Pt. 479) 48.
Counsel argued further that since FORM EC8A (1) for polling units from Achar Ingbian and Shingu Bongo were not tendered from the Bar even though admitted as Exhibit GW1 D. That the results should be taken as dumped on the tribunal. It is not the judicial duty of the tribunal to embark on the extra-judicial duty of examination of the same, in the “absence of any reference thereto by any witness, in the recess of their chambers.
Cites Bornu Holding Co. Ltd V Bogoco (1971) 1 All NLR 324; Onibudo V Akibu (1982) 7 SC 60; Onmeje V Otokpa (1999) 4 NWLR (Pt. 600) 506 and Terab V Lawan (1992) 3 NWLR (Pt.231) 569.
Counsel further submitted that the conclusion therefore reached by the tribunal (see PP. 216 – 277 of the record) as to the declaration of results in 47 out of 61 polling units in Bar and Fiidi wards together amounts to substantial non-compliance with the requirements of the electoral Act, 2006 and this view cannot be successfully faulted in view of S. 146(1) of the Act. Cited Ojukwu V Onwudiwe (2007) 3 EPR892 at 984 where the Court of Appeal held that the conclusion reached by the lower tribunal that the non-declaration of results from 14 out of 184 polling in Makurdi South constituency cannot vitiate the election is unassailable.
That Worse still, the Petitioners/Appellants failed, refused or neglected to adduce evidence on the total registered voters in those wards, particularly affected being Bar and Fiidi polling units. Moreover, counsel argued, no single voters register was tendered and no evidence is adduced as to the distribution of voting material produced at the lower tribunal by the Appellants.
Counsel urges us to resolve issue one in favour of the 1st and 2nd Respondents.
In resolving issue one, I start by saying that the law is now trite that the burden of proof is on who asserts in the instant case the petitioner, where the Respondent leads no evidence. The duty on the plaintiff or petitioner in a civil action is to adduce evidence in support of his pleadings. This is the first and the primary burden cast on the plaintiff or the petitioner because I repeat he who alleges must prove. See Johnson V Maja (1951 13 WACA 290; Odukwe. V Ogunbiyi (1998) 6 NWLR (Pt. 561) 399; OAA Co-Operatives Society V NACB (1999) 2 NWLR (Pt. 590) 234.
It is crystal clear therefore that the lamentation by the lower tribunal (supra) what the Appellants pleaded in their paragraph 19 that the Presiding Officers advised their agents in the 10 polling units in Bar pending the supply of EC8A (1) Forms, to record results on pieces of papers is true. They did not or failed to tender the pieces of papers in evidence at the trial however hence the lamentation (supra).
Another point I will want to look at very quickly is the issue of dumping documents or evidence on the tribunal without accompanying witness. That the polling units results EC8A (1) were dumped on the lower tribunal without tying them to any specific witness. Those go no issue. The correct view of the law is that a party relying on any document(s) in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. That the Court cannot assume the duty of tying each of the bundles of documents or exhibits to a specific aspect of a party’s case when that party has himself not done so in open Court.
The foundation of this principle of law is simple. It is an infraction of the principle of fair hearing. The Court or tribunal cannot do so in the recess of its chambers what a party has not himself done in advancement of his case in the open Court.For example the lower tribunal has the following to say (at page 215 of the record):-
“Although there were conflicted evidence as to what the number of polling units result were not declared out of 38 polling units in Fiidi Ward, where PW2 listed them out in his evidence on Oath to be four (4) DW1 stated that 36 out of 38 polling units in Fiidi were not declared. DW6 said 35 out of 38 units were declared. DW7 said it was 34 out of 38 polling units results that were declared….. ” and so forth.
In my view the above is confusing. Counsel for appellants could not have left such situation to the tribunal to sort out including the documents submitted thereat.
Yet another issue, I will want to comment on in resolving issue one is the non-joinder of the Presiding Officers whose conducts the Appellants found wanting in breach of Section 144(2) of the Electoral Act 2006 which reads:-
“The person whose election is complained of is in this Act, referred to as the Respondent, but if the petitioner complain of the conduct of an Electoral officer, a presiding officer, a Returning officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party……….”
This provision, by its literal interpretation, makes it mandatory for the Appellants to have joined the presiding officers they complained of. Their failure to do so is fatal as their non-joinder breached the principle of fair hearing of the presiding officer See Amadi V Thomas Aplindw Ltd (1972) 4 SC 228. Mohammed V Olawunmi (1990) 2 NWLR (Pt. 133) 458; Kotoye V CBN (1989) 1 NWLR (Pt. 98) 419; Bamaiyi V State (2001) 8 NWLR (Pt. 751) 210; Atano V AG Bendel State (1988) 2 NWLR (Pt. 15) 201.
In the end I resolve issue one in favour of the 1st and 2nd Respondents and against the Appellants.
Issue 2, is made up of two parts namely one by the 1st and 2nd Respondents and the other by the Appellant they read thus:-
“1. Whether or not on the evidence of the 1st and 2nd Respondent they did not score a majority of lawful votes (Based on Ground one)
“2. Whether or not the tribunal properly evaluated the evidence adduced in the petition before it reached its decision dismissing the same.” .(Based on Grounds 1 and 6) .
I need to reproduce the above issues together for an apt comprehension of the arguments of the counsel in the divide here.
I will first consider the argument of the Appellants’ counsel, albeit briefly, to wit:-
Learned counsel for the Appellants argued that, it is the primary duty of a court of law or tribunal to evaluate the evidence placed before it and to ascribe probative value to same before reaching a decision whether or not to accept same and act on it. Cites Omo V JSC Delta state and ors (2000) 7 SCNJ 17 at 32.
That the case before the lower tribunal was of non-compliance with the Electoral Act 2006 in that the election result in 4 polling units in Fiidi wards of Makurdi South Constituency and 10 in Bar ward were not collated and announced by the 3rd to 7th Respondents as required by law. The Appellants pleaded this allegation in paragraphs 17, 18, 19, 20, 21 and 22
of their petition.
PW2, the 2nd Appellant himself, testified in accordance with the pleadings and showed that the votes cast in his favour in the 10 polling units in Bar and 4 units in Fiidi were not returned and collated which greatly disadvantaged him and substantially affected the overall result of the election in his favour.
That PW3 his agent (PW2) testified that the results in 10 polling units in Bar were not collated and returned by the 3rd to 7th Respondents as the result were on pieces of papers rather than on Form EC8A(1). Which they were not provided for in those units. Under cross-examination he stated that at the collation centre of the ward at Kanshio, ANPP and AC members were there, any result brought that favoured the Appellants was forcefully collected by them and burnt.
In the same vein, PW4 told the tribunal that he was the agent of the Appellants for Fiidi ward. He testified without any contradiction that officers of 3rd to 7th Respondents refused to collate and enter results in Fiidi ward.
In their respective replies and evidence, the Respondents denied the allegation of what the petitioners pleaded. DW1 (1st Respondent) testified to the effect that there are 23 polling units in Bar ward and that only the result in 13 polling units were returned leaving 10 units unreturned. He also confirmed that out of the 38 polling units in Fiidi ward, results from 34 units were returned while result from 4 were not collated or returned. During cross-examination, he (DW2) however, stated he was not present when the results were entered and that there was no INEC official present even though he was at the polling units till 4pm that day. As for DW4 another agent of the Respondents, he stated that out of 23 polling units in Bar only the results from 13 were returned and that the materials for 9 were taken to private locations and mass thumb printed and doctored. However under cross-examination he told the tribunal that he went round the entire 23 polling units and that while materials were brought and election were held in 13 polling units, there were no materials brought in 10 polling units of Bar ward.
As for DW5, a registered voter, his evidence was full of inconsistencies. His main evidence is that the elections were free and fair and agreed that he was a hired witness. He said he voted in Bar ward, and that the results for 10 polling units only were collated and as for the rest, his agents informed him, that materials did not arrive. He went further to say that election did not take place in 38 polling units in Fiidi ward and the results from 3 polling units were rejected by INEC. DW7, a collation officer, told the tribunal he collated the results of Bar ward in Makurdi south Constituency. In that Bar ward, he said, only results from 13 polling units polling units were returned. In Fiidi ward, he said, he did not know “Achagh Ingbian” polling units but Peter Igba polling unit and the result from that unit was not returned due to report of snatching of ballot boxes and other malpractices and that there was no election. He said the result from Shungu Bongu did not reach the collation centre. Under cross-examination, he states registration per unit in Bar ward maximum is 1000 voters. He agreed Bar ward has 23 polling units and only from 13 results in Bar ward were returned and results from Fiidi 4 polling units were unannounced.
DW8, another collation officer, stated he was the collation officer at Fiidi ward. He said there were reported cases of election material snatching by thugs in Peter Igba and Shungo Bungu polling units of Fiidi ward. He states further that results from 4 polling units were not returned in the ward. The evidences reproduced above are for emphasis only, counsel submitted.
In the end, counsel for the appellants submitted that had the tribunal evaluated the above evidence properly and ascribe probative value to same before reaching its decision it would have come to the inescapable conclusion that the election was inconclusive in Bar and Fiidi wards and would have proceeded to invalidate the same and order for fresh election in the Makurdi South Constituency. Counsel submitted that the failure to do so is a fundamental mistake and it resulted in miscarriage of Justice to the appellants in the dismissal of their petition.
That the law is settled where there is a fundamental mistake in the evaluation of evidence as in this case, the court of Appeal can correct same. Cites Oyefolu and ors V A.G. Lagos state (2001) 7 SCNJ 108 at 117, Jang V Dariye (2004) FWLR (Pt. 194) 412 at 435.
Counsel urges us to resolve issue two in favour of the Appellant and against the 1st and 2nd Respondents.
Before the resolution of issue 2, I will treat the response submission by the 1st and 2nd Respondents learned counsel first. (See Mogagi’s case (supra)).
Counsel submitted that while he was arguing issue one, he submitted that since Exhibit GWID (FORM EC8A(1) for Achagh Ingbian and Shingu Bongo polling units were dumped on the tribunal without linking testimony from any witness, it should be or ought to be ignored in coming to a verdict in the tribunal. That in issues 2 he reiterates the same submission in respect of GWIB-FORM EC8E(1) Declaration of Result FORM for Makurdi South state Constituency; GWIC-FORM EC8(1) for 5 wards in Makurdi South Constituency with equal force. If that is done which counsel submitted the most logical conclusion is the, total absence of evidence in support of the slippery evidence by and for the appellants in the lower tribunal, that is to say, the evidence of PW2 (2nd Appellant) PW3 (Mr. Richard Agbakor) the Appellants’ agent attached to Bar ward collation centre; and PW4 Mr Shor petitioners’ agent attached to Fiidi ward and Therefore there will be no evidence in support of any prayer of the appellants as to declare what they sought, namely that they scored a majority of lawful votes cast.
Contending further, counsel submitted that the above is made worse by the absence of foundational evidence, i.e. polling units results demonstrating that the appellants had obtained a majority of lawful votes. Even from the 10 polling units out of 23 in Bar ward where they alleged their agents were recorded results on sheets of paper, none was tendered or produced at the tribunal. Nevertheless the tribunal still suo motu considered Exhibits GWIB (Declaration of Result Sheet), GWIC-FORM EC8B (1), GWID (2 FORMS EC8A(1) for Achar Ingbian and Shingu Bongo polling units pleaded in paragraph 21 of the petition, paragraph 18 of 3rd – 7th Respondents’ Reply and the evidence of PW4 under cross-examination before reaching a verdict that it is the 1st Respondent who scored the majority of lawful votes cast.
Counsel urges us to resolve issue 2 in favour of the 1st and 2nd Respondents and against the Appellants.
Now the resolution of issues 2. Reading through the judgment of the lower tribunal again and again one can only see the manifestation of Justice in it. I reproduce the tail end of the judgment for an apt understanding of the same before I embark on the resolution one way or the other, vide arguments of counsel in the divide. Part of the judgment concern reads:-
“In denial of paragraph 21 of the petition, the 3rd to 7th Respondents put the petitioners to the strictest proof thereof and further state that same shall prove at the trial that the lawful valid votes scored by each party are as following:-
(i) AC candidate – 813
(ii) ANPP Candidate – 3601
(iii) DPP candidate – 216
(iv) PDP candidate – 3193
We note from the pleadings that the petitioners pleaded that they were going to rely on all the results sheet (FORM EC8A(1) at the hearing yet only two forms in (Exhibit GWID) was tendered in respect of the said ward Fiidi.
On the other hand, PW4’s testimony under cross-examination is that at the time of collation of result in Fiidi ward PDP scored 3,836, ANPP scored 3,601 and AC over 800 votes. The evidence of PW4 is clearly at variance with paragraph 21 of the petitioners pleading (above reproduced).
The law is trite that any evidence at variance with pleading goes to no issue see Olowosogo V Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 288-289; Duke V Nzeka (1986) 4 NWLR (Pt. 34) 144 at 155-156.
In Green finger Agro Industry Ltd V Yusuf (2003) 12 NWLR (Pt. 833) 514. Held “A party must be consistent in stating his case and consistent in proving it”.
The petitioners have not been able to prove that they scored the highest number votes cast in Fiidi ward. From the above analysis highlighted in this judgment we hold the 1st respondent scored the highest number of votes and was lawfully returned.
The above judgment is not perverse. I cannot see any reason why this Court of Appeal should interfere with it. It is now trite an appellate Court should not substitute its views of the evidence in a case for that of the trial Court which saw and heard the witnesses. It is only where the trial Court failed to properly evaluate the evidence before it. which will make its judgment perverse that the appellate Court has a duty to embark on evaluation as if it were a trial Court. Such failure must be clear from the printed record before the Appellate Court. In the instant case, the evidence presented before the tribunal was adequately evaluated and as such we need not assume our power to evaluate the evidence.
See: Ebba v. Ogodo (1984) 1 SCNLR 372; Odofin V Ayoola (1984) 11 SC 72, Fabunmi V Agbe (1985) 1 NWLR (Pt. 2) 299; Bunyan V Akingboye (1999) 7 NWLR (Pt. 609) 31; Adegoke V Alabi (1992) 9 NWLR (Pt. 242) 41
In the circumstances, I resolve issue 2 in favour of the 1st and 2nd Respondents and against the Appellant.
Issue 3, the Appellants’ complaint here is as couched from ground 4 of their Notice of Appeal and is anchored on the competence of ground 3 of the petition which read thus:-
“That the election was inconclusive as voting did not take place in most of the polling units and lawful votes cast in some units where voting took place were omitted and these have substantially affected the result of the election” (see page 8 of the records).
The issue 3 itself reads thus “whether the tribunal was right to strike out ground 3 of the petition on the premise that it was not covered by Section 145 of the electoral Act, 2006” (Ground 4) and that section 145(1) of the Electoral Act 2006 provides inter alia thus “An election may be questioned on any of the following grounds.
(a) ……………..
(b) That the election was invalid by reason of corrupt practices or non-compliance.
That the tribunal was wrong to have struck out the same rather than consider it as a ground of non-compliance with the electoral Act, 2006. That the foregoing is tautology, counsel argued, that it should have been dealt with under issue one which covered non-compliance with the .Electoral Act and was left unconsidered thereat. Thus no miscarriage of Justice would have occasioned to warrant a complaint on appeal, that this makes this issue unnecessary or otiose.
However counsel submitted that Ground 3 of the petition was rightly struck out, notwithstanding, the fact it is definitely inconsistent with the tenor and spirit of section 145 (i) (2) of the Electoral Act, 2006 which spells out clearly the grounds of a petition and proceed to state that no act or omission which may be contrary to an instruction or directive of the commission or an officer thereof in an election shall itself be a ground for questioning the election.
In view of the foregoing we are urged to resolve issue 3 in favour of the 1st and 2nd Respondent and dismiss the appeal.
In resolving issue 3 it is pertinent to consider briefly the reason why the lower tribunal struck out ground 3 of the petition. That is where to begin. They held (see page 209 of the records) as follows:-
“We have carefully set out in detail the evidence of the parties and their witnesses coupled with the addresses of their respective counsel. We note the issues formulated for determination by counsel to the various parties. Before we proceed with the issues involved, we deem it necessary to make a brief comment on an important aspect of this petition which is whether grounds 3 of the grounds upon which this petition is based is competent. The 1st and 2nd Respondents’ Counsel had raised this in his address. We have scanned Section 145 of the Electoral Act which prescribes or spells out the grounds of a petition. We note that grounds 3 upon which this petition is based is not covered by Section 145 of the electoral Act, 2006, and the consequence of that is that ground 3 is incompetent. It is therefore struck out.”
I have also put a search light on Section 145 (1) and (2) of the Electoral Act 2006, to see if the reasons proffered by the tribunal is assailable or not. The Section reads as follows:-
An election may be questioned on any of the following grounds:-
1″ (a) That a person whose election is questioned at the time of the election, is not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this act;
(c) The Respondent was not duly elected by majority of lawful votes cast at the election, or
(d) The petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
(2) An act or omission-which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not be a ground for questioning the election.”
For an apt understanding I reproduce ground 3 of the petition again, thus:
“That the election was inconclusive as voting did not take place in most of the polling units and lawful votes cast in some units where voting took place were omitted and these have substantially affected the result of the election.”
How does the Appellant ground 3 reproduced fully above fit into Section 145(1) and (2) above? It cannot. The above finding therefore is not perverse.
Again in the circumstances, I resolve issue 3 in favour of the 1st and 2nd Respondents and against the Appellants.
Issues one and two above are resolved in favour of the 1st and 2nd Respondents and now this issue 3. All these issues are based on the six grounds of Appeal formulated by the Appellants. The lower tribunal decision is hereby affirmed.
In the circumstances, having resolved all issues raised in favour of the 1st and 2nd Respondent, the appeal must fail as it lacks merit. It is accordingly dismissed.
The decision of the lower tribunal delivered on 30/11/07 affirming the election and return of the 1st Respondent to the Benue State House of Assembly is hereby affirmed.
Cost of N30,000 to the 1st and 2nd Respondents against the Appellants.
Other Citations: (2009)LCN/3126(CA)
