Peoples Democratic Party & Anor V. Independent National Electoral Commission & Ors (2008)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

This is an appeal by the Appellants who were the Petitioners at the Tribunal against the judgment of the National Assembly Election Petition Tribunal, sitting in Lokoja for Kogi Central Senatorial District Election held on 21st April, 2007. The 1st Petitioner is the registered political party which sponsored the 2 Petitioner for the election for Kogi Central Senatorial District held on 21st April, 2007. The 7th Respondent was also a candidate at the said election having been sponsored by the 8th Respondent. At the end of the election, the 3rd Respondent declared the 7th Respondent as the winner. Dissatisfied with the said declaration, the petitioners went tribunal seeking the reliefs as follows:-

1. That the 7th Respondent Alhaji Otaru Salihu Ohize was not duly returned as having the majority of lawful votes in the said election of 21st April, 2007 into the Kogi State Central Senatorial District.

II. That the unlawful votes allocated to the 7th Respondent as shown in the paragraphs of this petition be deducted from the overall vote scored at the election as recorded in FORM EC8E(i) and the lawful votes scored by him be computed accordingly.

iii. That the unlawful votes allocated to the Petitioner be calculated and deducted from the total votes purportedly scored by him and on the basis of the lawful votes thereof, that the 2nd petitioner be declared the winner of the election into Kogi State Central Senatorial District of 21st April, 2007 having polled the majority of lawful votes cast.

IN THE ALTERNATIVE

Your Petitioners pray that election and votes returned in the aforementioned polling stations as contained in paragraph 26 of this petition be nullified and a fresh election/bye election be conducted in the aforesaid area.

The Petitioners called witnesses and testified before the tribunal and tendered documents which were admitted in evidence. The 1st – 6th Respondents did not give evidence as they did not file any defence to the petition; their purported attempt to do so was refused by the Tribunal as being outside the mandatory statutory time. The 7th Respondent filed a defence, called witnesses and tendered documents which were admitted as exhibits.

After addresses of both counsel, the Tribunal dismissed the petition. Dissatisfied with the decision, the Appellants have appealed to this court.

FACTS BRIEFLY STATED

The Appellants filed a Joint Petition dated 21st May, 2007 and filed on 21st May, 2007. Only the 7th – 8th Respondents filed their reply. The attempt by the 1st – 6th Respondents to file their reply out of time was refused by the Tribunal. The Appellants had applied and were granted leave directing the 1st – 6th Respondents to produce electoral documents and permitting copies to be made thereto. The 1st – 6th Respondents who complied to some extent and made available some documents to Appellants which were tendered at the hearing.

The gravermen of the Appellant’s contention before the tribunal consists both of allegation of corrupt practices and non- compliance with the Electoral Act, 2006. Documents were tendered and the list of exhibits tendered by the appellants are seen in the records.

As earlier stated the Tribunal dismissed the petition even though it had made a finding of non compliance and computed the votes affected and after deducting them from the overall scores, held that the non-compliance did not affect the result of the election.

The 7th and 8th Respondents cross-appealed and in their Brief argued the response to the appeal and argument proffered to persuade the court in favour or their cross-appeal. The Appellants/Cross-respondents responded to the cross-appeal in their Reply Brief.

The Grounds of Appeal without the particulars are as follows:-

GROUND 1

The learned Chairman and members of the Honourable Tribunal erred in law when they held that:

“A Look at paragraphs 11- 25, 34 -36 of the petition which the Petitioners’ counsel submitted are germaine to the determination of noncompliance with the Electoral Act contains several allegations bothering on crime and which must be proved beyond reasonable doubt.

GROUND 2

The learned Chairman and members of the Tribunal misdirected themselves in law when they wrongly collapsed/merged/lumped non-compliance allegation into corrupt practice (crime allegation) and held that to discharge the burden, it must be established that the 7th Respondent committed the Jet personally or aided, abated, counseled or procured the consent of the alleged corrupt practice.

GROUND 3

The learned Chairman and members of the Tribunal misdirected themselves in law when they held:-

”As for the allegations against the officers of the 1st – 6th Respondents, the nature of proof required of the Petitioners are slated by the Supreme Court in BUHARI v. OBASANJO (2005) 13 NWLR (pt.941) Page 1 at 67-68 (40 – 41) where the court held as follows;-

40. A Petitioner who alleges that electoral officials were biased must adduce evidence to show the manner in which they were biased against the Petitioner or in favour of the respondent to the petition to enable the tribunal or court to arrive at the conclusion.

In the instant case, although the appellants adduced evidence to show that some of the resident Electoral Commissions identified as PDP members were biased against the Appellants in favour of the 1st and 2nd Respondents consequently the Court of Appeal was right when it so held.

41. Acts of bias and failure of neutrality by an electoral commission that would invalidate an election must be widespread and all-embracing. In the instant case, the Appellants made allegations of bias and lack of neutrality on the part of the 3rd Respondent but they failed to adduce evidence in support of their allegations.

In this case, there is no evidence to show how the officers colluded with the 7th and 8th Respondents to declare a false result.

None of the Presiding Officers alleged to have been beaten or harassed to sign result sheets were called as witnesses to state what they say. Attempts to call them without having filed statements on oath was refused during trial. The petitioner’s counsel submitted that the burden of proof on the petitioner is minimal and that facts not denied are deemed admitted since thee is no evidence from the 1st- 6th Respondents. The law is that admissions cannot be used to prove issues beyond reasonable doubt. Therefore the allegations of collusion of declaring results where elections did not take place are criminal allegations bothering on forgery which cannot be prove by technical admission.

GROUND 4

The learned Chairman and members of the Tribunal erred in law when they held:-

”It is our view that the Petitioners’ case is anchored on criminal allegations: We have thoroughly examined the entire petition, and the evidence led we are unable to see how the case has narrowed down to noncompliance as it is not possible to sever or separate the averments alleging the criminal acts from the entire pleadings. If that is done, then nothing is left of the Averments.”

GROUND 5

The learned Chairman and members of the Tribunal erred in law when they held that:

“Even if the averments are (sic) severable, the issue remains whether the petitioners have discharged the burden of proof placed on them by the law”.

GROUND 6

The learned Chairman and members of the Tribunal erred in law when they held:-

”In this case the petitioners did not lead evidence to show that the marking is in relation of the election held on 14th April, 2007 and not the election of 21st April, 2007 thus leaving the Tribunal in doubt or in speculation. Speculation is hot in the character of the law and administration of Justice. In the circumstance, we hereby hold that the petitioners have not discharged the onus of proof placed on them particularly where the result from the polling units, wards level and summary of result have been tendered by both parties prima facie showing that elections were held”.

GROUND 7

The learned Chairman and members of the Tribunal erred in law when they held that:

“In this case even if the entire number of registered voters in the polling units cancelled is added to the score of the 2nd Petitioner, the 7th Respondent will still retain his lead”.

GROUNDS

The learned Chairman and members of the Tribunal misdirected themselves in law when they held that:

“Having considered the entire case presented by both parties, it is our view that the non – compliance in this case has not substantially affected the result of the election. Accordingly, the petition fails and it is hereby dismissed”.

GROUND 9

The judgment is against the weight of evidence having regard to the evidence adduced.

RELIEFS SOUGHT

i. An order allowing the appeal

ii, An Order setting aside the election held in Okene, Okehi and Adavi Local Government Area and ordering a bye-election in the affected areas.

iii. IN THE ALTERNATIVE, an order ordering a fresh election in the Kogi Central Senatorial District.

The Appellants distilled from the grounds of appeal five (5) issues for determination which are as follows:-

1. Whether the tribunal was right in holding that paragraph 11-25, 34 -16 of the petition are all allegations bothering on crime which must be proved beyond reasonable doubt.
2. Whether the learned tribunal was right in treating the allegation of non-compliance as criminal allegation that must be proved against the 7th Respondent having regard to the burden of proof in the circumstance.
3. Whether the tribunal was right in holding that allegation of crime which cannot be proved by technical admission, having regard to the state of pleading and evidence before it.
4. Whether the learned tribunal was right in the application of the doctrine of severance of pleading as it relates to the petition vis – a – vis the burden of proof arising.
5. Whether the learned tribunal was right in holding that non-compliance did not affect the result of the election having regard to the evidence before it and the evaluation therein.

The 7th and 8th Respondents formulated issues in their Brief of Argument filed on 20/11/07 and titled 7th and 8th Respondents/Cross Appellants Brief of Argument. The issues posed are:-

1. Whether or not the Challenge of the election of 31st Respondent, who is not a party to the election, is fatal to the petition. (Ground one of the Cross-Appeal).
2. Whether the trial Tribunal was right in holding that Ground 2 of the Appellant/Cross Respondent’s petition was competent, when it did not comply with Section 145(1) (b) of the Electoral Act; 2006 (Ground two of the Cross Appeal).
3. Whether the failure of the Appellants/Cross Respondents to join officers of the 1st Respondent as parties is not fatal to the petition. (Ground three of the Cross Appeal).

ALTERNATIVELY:

4. Whether or not the Tribunal was right when it held that paragraphs 11-25, 34-36 of the petition are allegations bothering on crime, which must be proved beyond reasonable doubt (Relates to ground one).
5. Whether or not the trial Tribunal was right when it held that it is difficult to sever averments of non-compliance from allegations of criminal acts from the entire pleadings (Relates to ground two).
6. Whether or not the Tribunal was right in holding that there is no evidence to show how the Electoral Officers colluded to declare false results, and that the allegation of crimes and that the crimes alleged, against Electoral Officers cannot be proved by technical admissions (Relates to ground three).
7. Whether the learned Tribunal was right in the application of the doctrine of severance of pleading as it relates to the petition vis- a -vis the burden of proof arising therein.
8. Whether the learned Tribunal was right in holding that non-compliance did not affect the result of the election having regard to the evidence before it and the evaluation therein.

It is easier for me to utilise the issues as distilled by the Appellants and so I would use them as guide.

ISSUE 1

WHETHER OR NOT THE TRIBUNAL WAS RIGHT WHEN IT HELD THAT PARAGRAPHS 11 -25, 34 – 36 OF THE PETITION ARE ALLEGATIONS BOTHERING IN CRIME WHICH MUST BE PROVED BEYOND REASONABLE DOUBT.

Dr. Izinyon SAN, learned counsel for the Appellants at the hearing on 25/2/08 referred to their joint Brief filed on 13/11/07 and a preliminary objection dated 24/11/07 and filed on 26/11/07 which objection is against the cross-appeal Learned Senior counsel also referred to their cross-respondent’s Brief filed on 26/11/07 in which the preliminary objection is incorporated. He urged the court to allow the appeal and dismiss the cross – appeal. That the Tribunal placed too much burden on the petitioner/Appellant which is balance of probabilities and not beyond reasonable doubt. He said the non accreditation substantially affected the result of the election. That the failure to make the distinction between civil standard of proof and that of the criminal in relation to the petition led to a miscarriage of Justice at the Tribunal. He referred to the analysis detailed in the brief on what transpired at the polling stations and thereafter.

Dr. Izinyon further stated that it is within the ambit of the Appellants to plead more in a petition and if he pleads more and succeeds in proving less, he cannot be punished for pleading more and proving less. He cited Arab v. Ross (1952) 2 Q. B 210 at 229; Omoboriowo v. Ajasin (1984) 15 NSCC 81 at 101; Ezemba v. Ibeneme & anor (2004) 14 NWLR (pt. 894) 617 at 659.

Learned counsel for the Appellants (petitioners below) had orchestrated their petition on grounds of lawful majority votes cast, corrupt practices or non-compliance, each of these grounds is distinct, separate and can sustain a petition on its own and where however in the course of proof the Appellants, had proved less as in this petition non-compliance and lawful majority votes cast, they cannot be penalized for pleading the others insisting the same burden of proof, run across the three grounds.

Learned counsel for the 7th and 8th respondents filed their Respondents and Cross -Appellant’s brief on 20/11/07. Mr. Usman of counsel contended that the Appellant had not pleaded the issue of accreditation and that a particular ink that was to be used was not used. He said that the tribunals and courts have been urged to move away from technicalities that would defeat the Justice of the matter.

He cited Consortuim M.C. v. NEPA (1992) 6 NWLR (pt. 246) 132 at 142.

He said the issue of severance does not arise and cross appeals have not made out a case.

The 1st – 6th Respondent filed no Brief and found by court not to have the competence to be heard.

To answer this issue which has raised the question of whether or not the petition had thrown up some levels of criminality or crimes per se for which the proof has to be that in every criminal offence which is beyond reasonable doubt. It is therefore necessary to take another look at some of the paragraphs of the Petition and I would restate a few:-

Paragraphs 11 -13.

11. The Electoral Officers for ADAVI, OKENE and OKEHI LGA in connivance with the Presiding Officers thereof, aforementioned who are agents of the 1st – 6th respondents in concert with 7th and 8th respondents and their agents sat down to allocate scores to the candidates when voting did not take place at the stations and where it did take placer it was aborted midway by thugs who attacked the stations and carried away voting materials – statutory forms EC8A(1), voters’ register for the polling units, ballot papers and other sensitive electoral items.
12. The petitioner avers that the total votes purportedly scored by the candidates in the affected polling station were the result of arbitrary and illegal allegation of votes to the candidates at the election contrary to the provisions of the Electoral Act 2006 and laid down guidelines of the 1st respondent.
13. The final result of the election in Kogi Central Senatorial District does not reflect the pattern of voting at the polling stations as votes did not take place in some polling stations and yet results were declared by the 1st -6th respondents; where elections did take place they were inconclusive as voting was marred by violent threats to the presiding officers and party agents illegal hijacking and removal of the voters register and result sheets by agents of the respondents in conceit with INEC officials mid-way in the course of voting. Not part of indent. That was the tone up to and beyond paragraph 25.

By virtue of Section 138(1) of the Evidence Act, whenever the commission of a criminal offence is in issue in a case, whether civil or criminal it must be proved beyond reasonable doubt.

Under the same Section 138(10) of the Evidence Act, it is not every and any allegation of crime made in a case that the court must proceed to prove beyond reasonable doubt. Such allegation must be “directly in issue” in the proceedings. Also the allegation in question must be against “a party to the proceeding” and not just a mere witness. See Alalade v. Awodoyin (1999) 5 NWLR (pt. 604) 529.

1. Electoral offences are criminal in nature and the onus is therefore on the appellant to prove them beyond reasonable doubt. Modebe v. Okadigbo (1992) 9 NWLR (pt. 261) 1 SCNLR 1; Zeba v. Zagi (1999) 5 NWLR (pt. 601) 114.

There must be strict proof of any allegation of an electoral offence. Modebe v. Okadigbo (1992) 9 NWLR (pt. 263) 1.

Over-balloting or over-voting can only arise when more votes than the registered number of voters are cast at a polling station Jimoh v. Garuba (1998)7 NWLR (pt. 566)100 at 103.

Proof of an election malpractice or irregularity or misconduct depends on the nature of the conduct complained of when the allegation is simply that of some wrong doing, its proof would be on preponderance of evidence where the allegation borders on criminality, and the standard of proof is beyond reasonable doubt.

By the very nature of election cases, evidence alleging election malpractice or irregularity must not only be precise and definite but must also be unequivocal and certain. Vague evidence alleging malpractice or irregularity cannot be accepted by a tribunal or court of law. Ogu v. Ekweremadu (2006) 1 NWLR (pt. 961) 255.

It can easily be seen from the paragraphs of the petitions earlier referred to that the allegations averred were not just incidences of wrong doing but those of criminality.

In the particulars under paragraph 34 of the petition the Appellant as petitioner had averred inter alia:-

(1) There were outright rigging, multiple voting, thuggery, violence, stealing and diversion of sensitive electoral materials and outright allocation of votes.

The category into which this: above stated averment falls is deducible without difficulty as criminal.

The difference between the burden of proof in a criminal case and that in a civil is that in criminal matters or claims founded on criminal conduct, the allegation has to be proved beyond reasonable doubt. In civil matter it is on the balance of probability which shifts as the need arises. In criminal burden it is static, immovable ever remaining on the prosecution or the claimant as the case may be. See Haruna v. Modibbo (2004) 16 NWLR (pt. 900) 487 at 585; Nsirim v. Nsirim (199S) 9 NWLR (pt. 418) 144; Omorinbola 11 v. Military Governor Ondo State (1995) 9 NWLR (pt. 418) 201; UBA Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (pt. 421) 558; Ugbo v. Aburime (1994) 8 NWLR (pt. 360) 1; Edokpolo & Co. Ltd v. Ohenhen (1994) 7 NWLR (pt. 358) 511.

The general burden of proof, in the sense of establishing case, initially lies on the plaintiff or the initiator of the law suit. The proof or rebuttal of issues which arise in the course of the proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses: This general rule which is enshrined in the maxim ‘ei qui affirmat non ei qui negat iniumbit probation’ has been encapsulated in Section 137(2) of the Evidence Act.

It is to be noted that until the plaintiff or the petitioner has discharged the onus cast on him by law, the onus does not shift.

Haruna v. Modibbo (2004) 16 NWLR (pt. 900) 487 at 557 per Aderemi JCA (as he then was).

Where an allegation of non compliance with the Electoral Law is made, the onus lies on the petitioner firstly to establish the substantial non-compliance, and secondly, that it did or could have affected the result of the election. It is after the petitioner has established the foregoing that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 at 222 per Ejiwunmi JSC; Awolowo v. Shagari (1979) 6 – 9 SC 51; Akin Fosile v. Ijose (1960) SCNLR 447; Ibrahim v. Shagari (1983) 2 SCNLR.

By virtue of Section 138 of the Evidence Act, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person had been guilty of a crime or wrongful act is subject to the provisions of Section 141 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the act. AD v. Fayose (2005) 10 NWLR (pt. 932) 151.

Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to defied the course of Justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice, Per Nsofor JCA in A.D. v. Ayo Fayose (2005) 10 NWLR (pt. 932) 151 at 197.

An agent of a disclosed principal incurs no liability. The principal, and not the agent, is the proper person to sue and be sued upon the contract. B.B. Apugo & Sons Ltd v. Orthopaedic Hospitals Management Board (2005) 17 NWLR (pt. 954) 315 at 340; Niger Progress Ltd v. N.E.L. Corporation (1989) 3 NWLR (pt. 107) 68; Khonam v. John (1939) 15 NLR 12; Carlen (Nig.) Ltd v. Unijos (1994) 1 NWLR (pt. 323) 631.

The principle that an agent of a disclosed principal is not liable is not inflexible. There is no agency in the case of a wrongdoer. A person who is himself a wrongdoer cannot be the principal of another who is also a wrongdoer. The relationship of agent and principal has no application in the case of a wrongdoer. B.B. Apugo & Sons Ltd v. O.H.M.B. (2005) 17 NWLR (pt. 954) 305 at 340; Rickett v. B.W.A. Ltd (1960) SCNLR 227; West African Shipping Agency (Nig.) Ltd v. Kalla (1978) 3 SC 21; Asafa Foods v. Alraine Nigeria limited (2002) 12 NWLR (pt. 781) 353.

From all that has been stated above, the submissions and the contents of the petition including paragraphs 11 – 25, 34 – 36 the allegations put forward are those of crimes or related thereto materially and must be proved beyond reasonable doubt as Tribunal found. Therefore I answer this issue with a Yes.

ISSUE 2

WHETHER THE LEARNED TRIBUNAL WAS RIGHT IN TREATING THE ALLEGATION OF NON-COMPLIANCE AS CRIMINAL ALLEGATION THAT MUST BE PROVED AGAINST THE 7TH RESPONDENT HAVING REGARD TO THE BURDEN OF PROOF IN THE CIRCUMSTANCE.

Learned counsel for the Appellants stated that it was erroneous and clear misdirection of the learned tribunal to unilaterally lump/or collapse or merge the allegation of non-compliance and corrupt practice in paragraphs 11 – 25, 34 – 36 of the petition thereby shifting the goal post of burden against the Appellants to be one of proof beyond reasonable doubt. He cited Omoboriowo v. Ajasin (supra) 81 at 85.

Dr. Izinyon for the Appellants submitted that each of the headings ie criminal allegations of corrupt practice against the 7th Respondent, non-compliance against INEC officers can sustain the petition depending on the proof bf evidence produced by the Appellants. That the failure of the learned tribunal to delineate those allegations of non-compliance against INEC which had been proved led to a miscarriage of Justice. That these allegations against INEC and its officers shown in the paragraphs outlined in this brief, no proof was required to ink 7th Respondent to them as indeed he had no bearing with the statutory duties imposed on INEC in the conduct of the election. That this led the Tribunal to place the heavy burden of proof beyond reasonable doubt not only an allegation against 7th Respondent but an allegation against 7th Respondent but an allegation of non-compliance against INEC officers which is on the balance of probability which is not the position of the law. He cited omobiriowo v. Ajasin (supra) 89.

In response learned counsel for the Respondents/cross appellants, Mr. Usman said the allegations were acts of wrongdoing made against specified persons who were not joined by the Appellants/cross-respondent in their petition. That the conduct of the said persons were directly complained of by the petitioner, thus they were necessary parties to the petition. He referred to paragraph 47(1) of the Schedule to the Electoral Act 2006. That not withstanding the serious allegations made against the said person, the petitioners failed to join them as parties to the petition and the result is that they were denied the right to fair hearing having not been joined when their conducts were directly in issue. He referred to Section 36 of the 1999 constitution.

Learned counsel for the Respondents further contended that the failure of a party to join the said officers was fatal to the Appellants/cross-Respondents’ petition in that:-

1. The allegation made against them were criminal and weighty in nature.
2. They were ipso facto necessary parties to the petition.
3. That non-joinder denied them their constitutional right of fair hearing.
4. Such non-joinder is fatal and renders the petition incompetent and struck out. He cited Ibrahim & Ors v. Sheriff & ors (2004) 1 EPR 215 at 236; Fasakin Foods (Nig.) Ltd v. Shosanya (2006) 10 NWLR (pt. 987) 126 at 148 -149.

Learned counsel for the Appellants in reply on points of law said the Respondents misconceived the issue as this is because the proviso to Section 144(2) of the Electoral Act, 2006 saves the petition once it is shown that such officers had acted as agents of INEC. That this is a sharp departure from the previous legislation where non-joinder was held to be fatal and therefore many

petitions were thrown out for non-joinder. That this proviso is not a magic wand and the petitioner must plead the officers as agent of the commission in order to be protected. He cited Nwankwo v. Yar’Adua &. 40 ors Petition NO: CA/A/EP/6/07.

In regard to this matter of non-compliance the Tribunal held:-

“We have found that there is a non-compliance which affects the validity of the scores returned in some polling stations. It is the law that a Petitioner who alleges irregularities, malpractices or non-compliance at the election with the provisions of the law, must in order to succeed, satisfy the Tribunal or the Court that non-compliance substantially affected the result of the election. Having considered the entire case presented by both parties, it is our view that, the non-compliance in this case has not substantially affected the result of the election”.

Where an allegation is made that an election was invalid by reason of corrupt practices or non-compliance with the provision of the Electoral Act, 2002, the provision of the Act the court will resort to in resolving the complaint is Section 135(1) of the Electoral Act is to ensure that not every minor non-compliance, or minor breach of the provisions of the Act vitiates an election. Stated differently it is to prevent an election from being invalidated on mere failure to comply with minor provisions of the Act, which have no effect or do not substantially affect the outcome of the election. See Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1.

The matter of substantial non-compliance are either criminal in nature or civil and so the Tribunal was right in laying emphasis on the substantiality of the non-compliance and so if civil there must be proof albeit on the preponderance of evidence or if criminal in nature beyond reasonable doubt. The answer to this issue is in favour of the Respondents 7th and 8th.

ISSUE 3

WHETHER THE TRIBUNAL WAS RIGHT IN HOLDING THAT ALLEGATION OF BIAS/COLLUSION AMOUNT TO ALLEGATION OF CRIME WHICH CANNOT BE PROVED BY TECHNICAL ADMISSION, HAVING REGARD TO THE STATE OF PLEADING AND EVIDENCE BEFORE IT.

Learned counsel for the Appellants said there were several allegations against the INEC officers, 1st – 6th Respondents which can be seen in paragraphs 17, 18, 20, 21, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 and these paragraphs did not contain any allegation of bias against 1st – 6th Respondents. That rather the allegation of bias on the party of 1st – 6th Respondents are shown in paragraphs 11, 12, 13, 14, 15, 17 and 20 of the petition and that the tribunal misdirected Itself when It held that there was no evidence of bias or the officers colluding with 7th and 8th Respondents to declare a false result.

Dr. Izinyon said there was no harm in pleading more by the Appellants and proving less. That the specific allegations of noncompliance against INEC and they are the only one who could rebut the same and that 1st – 6th Respondents did not file any defence nor defend the petition. That the burden of proof in this circumstance is minimal and uncontroverted. He cited Okoebor v. Police Council (2003) 12 NWLR (pt. 834) 444 at 483.

Learned Senior Counsel said paragraphs 18, 25, 31, 32, 33 and 36 of the petition were allegations of non-compliance which were not defended or rebutted by 1st – 6th Respondents. That these allegations apart from their averments were also covered by evidence in the witness statements of Appellants and their witnesses and so a clear case of dereliction of duties, irregularities entry of votes and recording in the INEC forms EC8A(1) ECB(1) and EC8C(1) contrary to the INEC manual were made out. That it was not a case of technical petition, was held by the learned tribunal.

Learned counsel for the Appellants said the miscarriage occasioned by the failure of the learned tribunal to appreciate this left the Tribunal to merge the allegation of non-compliance against the 1st – 6th Respondents and dealt with other criminal allegations against 1st – 6th Respondents in concert with 7th and 8th Respondents. That it should have severed them and held that proof of non-compliance to be on balance of probability. That the Tribunal shifted the burden of proof to that of criminal allegations when a case of non-compliance had been made out on a balance of probability against INEC officers.

The effect would have been a nullification of the election and fresh election to be conducted on clear level ground for 1st – 6th Respondents to carry out their duties 5 imposed by law.

Mr. Usman of counsel for the 7th and 8th Respondents said where a petitioner alleges bias against Electoral Officers, he must adduce evidence to show the manner in which they were biased against the Petitioner to enable the Tribunal arrive at its conclusion. He cited Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 at 67.

That the trial Tribunal also reviewed, evaluated and considered all the evidence adduced before it arrived at the conclusion that there is no evidence placed before it that the 7th and 8th Respondents colluded with electoral officers. That the evidence was challenged and that the evidence of RW1 -RW17 and the documents including electoral forms signed by presiding officers, party agents and the agents of the Appellants to show that the election was conclusive. That the persons who were beaten up were not called and the party agents of the Appellants in various polling units, who did not sign the forms, were not called and that the Appellants had failed to prove the truth of the allegations. That there is nothing to show that the Electoral Officers were biased.

Mr. Usman said the evidence was challenged, the allegations were rebutted in the paragraphs particularly 42 – 51 of the reply of 7th and 8th Respondents and the evidence of the witnesses of the 7th and 8th Respondents at the trial. That the alleged unchallenged evidence were not proved and work false and that the Tribunal rightly held that they were not proved. He stated that the law is that where from the nature of the non-compliance, crimes are alleged as in the instant case, the proof must be proved beyond reasonable doubt and so the issue of minimal proof does not arise. That the non-defence by the 1st to 6th Respondents will not automatically shift the onus placed on the Appellants.

Learned counsel for the Respondent 6th – 7th Respondents said the Tribunal was right when it evaluated the evidence and held that the allegations of collusion and fraud against the Electoral officers had not been proved. He said the standard of proof required when unethical behaviour is alleged like a location of votes by Electoral Officers, forgery of signatures, collusion to rig election, filling of electoral forms when there are no elections, is that the proof of such unethical behaviour must be beyond reasonable doubt. He cited Buhari v. Obasanjo (supra).

From the contention of the Appellants herein clearly they make no bones of having attempted to prove the allegation of bias against the electoral officers and are leaning on the defence of not being obligated to prove every line of Pleading. That they have the option to assert much in pleading and choose or restrict themselves to a narrower area for proof.

The Respondents attitude is that this scenario should work against the Appellants.

Indeed under the rules of pleading, a pleader who has pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited ones. See Arab Bank v. Rose (1952) 2 Q.B. 216 at 229.

A party to a suit is riot obliged to lead evidence in support of every averment in his pleading. Although he is bound by his pleadings, he is at liberty to abandon such averments as he considers

unnecessary to his case or which he is unable to prove. Moreover, a party who has pleaded more than he strictly needs to have done can always disregard the surplus or unnecessary averments and rely on the none limited ones. Ezemba v. Ibeneme (2004) 14 NWLR (pt. 894) 617 at 659 per Onu JSC Olorunfemi v. Asho (2000) 2 NWLR (pt. 643) 143; Omobiriowo v. Ajasin (1984) 1 SCNLR 108; Durosaro v. Ayorinde (2005) 8 NWLR (pt. 927) 407; Nwankwere v. Adewunmi (1967) NMLR 45.

The law of evidence requires a party to prove its case by calling the best evidence available. This is what is referred to as the Best Evidence Rule. Nwankpu v. Ewulu (1995) 7 NWLR (pt. 407) 269.

The Appellants are to be taken to have abandoned the averments of bias since no effort was made, to prove them and so those averments go to no issue. The Tribunal was right in what it found and decided in this issue and the issue is resolved in favour of the 7th and 8th Respondents.

ISSUE 4

WHETHER THE LEARNED TRIBUNAL WAS RIGHT IN THE APPLICTION OF THE DOCTRINE OF SEVERANCE OF PLEADINGAS IT RELATES TO THE PETITION VIS- A -VIS THE BURDEN OF PROOF ARISING THEREIN.

Learned counsel for the Appellants said the Tribunal wrongly applied the principle of severance of pleadings. That the facts when married alongside each of the grounds of the petition, can stand distinctly and separately and so it was erroneous with respect to the learned trial tribunal to hold that the entire petition is anchored on criminal allegations. He cited Omoboriowo v. Ajasin (supra); Nwankwere v. Adewunmi (1967) NWLR (pt. 45); Nwobodo v. Onoh & ors (12984) NSCC1 at 3; A.D. v. Fayose (2005 10 NWLR (pt. 932) 151 at 230 – 231.

That if the criminal allegations itemized in the petition are severed there still remains the other non-compliance allegation to ground the non-compliance in accordance with the Electoral Act, 2006 and once that is made out title burden of proof is on the balance of probability.

Learned counsel for the 7th and 8th Respondents said the trial Tribunal did not sever any paragraph rather it considered, reviewed and analysed the evidence led in support of the paragraphs and arrived at the conclusion that the paragraphs relate to issues of crime which were not proved. That the tribunal did not strike out any paragraph, therefore there was no need to review any remaining paragraphs rather it considered all the issues contained in the petition. He referred to Nnorodim v Ezeani (2001) 2 SCNJ 1 at 5.

In reply on points of law learned counsel for the Appellants said the burden of proof is not static but shifts from party to party. He cited Ezemba v. Ibeneme (2004) 14 NWLR (pt. 894) 617 at 653 – 654.

That when a party finds a crucial finding by the court against him though the judgment is in his favour, he can cross-appeal. He referred to Abdulkarim v. Anazodo (2006) 11 NWLR (pt. 991) 229 at 323; Effiong v. Ebong (2006) 18 NWLR(pt. 1010) 109 at 125.

Dr. Izinyon said that the third category of improper evaluation or no evaluation at all are the irregularities noted on the face of forms EC8A(1) and EC8B(1) tendered as Exhibits before the Tribunal.

That it has been settled that the best form of evidence on a polling unit is the Form EC8 A (1) and it speaks for itself. He cited Terab v. Lawan (1992) NWLR (pt. 231) 569 at 586.

Learned counsel for the Appellants showed the analysis of the irregularities on the face of Forms EC8A(1) Exhibits Q1 – Q 188 and Forms EC8S(1) Exhibits ‘Rl’ 1R25′.

Learned Senior Counsel said that from the analysis they had shown the court can properly evaluate and make the appropriate finding as it is trite that the evaluation of documentary evidence is not within the exclusive preserve of the trial court. He cited Iwuoha v. NIPOST Ltd (2003) 8 NWLR (pt. 822) 308 at 337; Ogunleye v. Oni (1990) 2 NWLR(pt. 135) 745 at 785.

That over balloting and inability of presiding officers to compute spoilt and unspoiled papers added together with the valid votes is a serious irregularity of non-compliance. He cited Kingibe v. Isa Mainai Swen v. Dzungwe (1966) NMLR 299.

That the irregularities in this case cut across non-compliance, accreditation, over voting, over balloting, wrong entries, in the form EC8 A(1) and EC 8B(1) on their face value.

For the Respondents 7th and 8th it was contended that the issue of non – compliance by virtue of section 146 of the Electoral Act shall not invalidate an election as the spirit of the provision is that minor breaches of non-compliance shall not vitiate an election.

Learned counsel for the Respondents said the Appellants failed to prove that there were no accreditation as alleged in paragraph 25 of the petition and that the results of the polls in the 102 polling units clearly show that there were no over voting. That the contentions in the forms do not support the Pleadings of the Appellants in paragraph is of the petition, which include:-

(1) That there was no voting.

(2) That there were no elections.

That instead of the contention of the Appellants the forms clearly show that the elections were conclusive, results declared and the agents of the Appellants Signer the forms as authentic as required by Section 75 of the Act. That the Appellants Failed in its brief to show that the figures they set out in pages 51 – 109 of their brief refer to any exhibits tendered in the course of the petition and marked by the Tribunal.

Mr. Usman of counsel said the Tribunal had properly evaluated the evidence and documents tendered as exhibits before it and arrived at its decision that the non-compliance will not affect the result. He referred to the review and analysis by the Tribunal and showed them in the brief.

Learned counsel for the Respondents further contended that the Tribunal having found that the registered were accredited once, the Tribunal could not speculate when no evidence was led in support of the mark and accreditation. He cited Section 137 (1) of the Evidence Act and the cases of Ebun v. Ebu (2006) All FWLR (pt. 327) 419 at 428.

The grouse here is whether the Tribunal should sever an allegation from the other and as I understand it cut out a criminal aspect from the civil for purpose of proof.

In civil matters, the onus of proof lies on the plaintiff to satisfy the court by cogent and credible evidence that he is entitled on the evidence adduced by him to the declaration sought in his claim. In this regard, the plaintiff may rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the case will not help him and the proper judgment will be for the defendant. Nigerian Gas Co. Ltd v. Dudusola (2005) 18 NWLR (pt. 957) 292 at 315; Elema v. Akenzua (2000) 13 NWLR(pt. 683) 92; Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (pt. 606) 330.

Section 135(1) of the Evidence Act provides that whoever desires any court to the judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden therefore, lies on the person who would fail if no evidence at all were given. See Nigeria Gas Co. Ltd v. Dudusola (2005) 18 NWLR (pt. 957) 292.

The bellyache over severance is of no moment as the Tribunal was at liberty to use whatever method it deemed right to arrive at the right finding and decision. This issue is in favour of the Respondents.

ISSUE 5

WHETHER THE LEARNED TRIBUNAL WAS RIGHT IN HOLDING THAT NON-COMPLIANCE DID NOT AFFECT THE RESULT OF THE ELECTION. HAVING REGARD TO THE EVIDENCE BEFORE IT AND THE EVALUATION THEREIN.

learned Senior Advocate for the Appellant contended that the non-compliance affected the result of the election and that the compliance properly before it. That his court can interfere where the trial court had failed to properly evaluate the evidence before it or where the findings are perverse and not supported by evidence. He cited Ebba v. Ogodo (1984) 1 SCNLR 372 at 381.

Learned counsel said there was improper evaluation of the issue of lack of accreditation in the named polling units listed in the petition and corroborated by the witness statements. Also that the appellants had tendered INEC manual for officers for the said election marked as Exhibit T and also did a d tailed analysis in respect of the affected polling units in the Adavi, Okene and Okehi LGAS. He stated on that the law has now been settled that for non-compliance with Electoral Act to be substantial enough to affect the result it does not mean all voters were disallowed but it will be sufficient if enough of their votes are disallowed to give the candidate a majority of valid votes. He referred to Sorunke v. Odebumi (1960) SCNLR 414.

He referred to 46,124 votes be disallowed from the votes of the 7th Respondent.

Dr. Izinyon said on the evaluation of voters registers, that the tribunal to properly evaluate that there were three categories of purported accreditation. First are those whose names were never ticked at all connoting no accreditation at all. He referred to those exhibits.

Learned counsel said there is a third, those being the ones marked once. That the first category had 27,634 as voters who were not marked at all yet results were returned from the polling units showing voting allegedly too place. The second category are those marked once, they are 67,953 votes in all. He stated further that the best evidence of this accreditation or not in the voters register itself and in evidence were the certified true copies of the voters registers themselves. That according to the INEC manual and Guideline exhibit T, the two elections came up that day that is the Presidential and National Assembly Elections, the register must be marked with red biro. He referred to Exhibit T, the INEC manual.

Learned counsel said the tribunal did not call for the original of the registers which would have enabled the court to properly evaluate the evidence and arrive at a dispassionate decision regarding the allegation of non-compliance. Therefore that once the Appellants had shown that the registers were marked once, on balance of probability that the Appellants had proved that there was no accreditation known to law. That if it had been marked twice it would have been a different thing and so that balance of doubt must be given in favour of the Appellants, especially when the evidence was not rebutted or defended by INEC. He cited Odofin v. Mogaji & Ors (1978) NSCC 275 at 2771.

Learned counsel for the Respondents said the tribunal had carefully reviewed the exhibits including all forms EC8 A, EC8 B and the over all results. The issue of accreditation, irregularity and noncompliance etc before it came to the conclusion contained in the judgment. He cited Nigeria Gas co. Ltd v. Dudusola (2005) 18 NWLR (pt. 957) 295.

Learned counsel said the Tribunal properly reviewed the evidence before making its findings of fact and so the court should not disturb those findings.

In reply on points of law, learned counsel for the Appellants said the non-compliance was enough to vitiate the election. Also that INEC Guidelines Exhibit ‘T’ clearly shows that two inks would be used in the National Assembly and presidential elections. He referred to page 17 of the manual Exhibit ‘T’.

In the case of Bassey v. Young (11963) All NLR 31 per Brett F.J. held:-

1. In an election petition the onus is on the petitioner who alleges an irregularity and also that it was substantial to prove both.
2. The petitioner having proved that the polling opened about four hours late, the onus was on the appellant to show that it remained open for eight hours.
3. The irregularity of opening the poll very late was substantial for as there was no information on when polling was likely to start voters who had left before it began could not be expected to come back later.

The Court of Appeal should not disturb a finding of fact of a trial court, unless it is satisfied that such finding is unsound. The duty of the Court of Appeal is to examine the grounds that led to the

conclusion reached and the inferences that have been drawn from such conclusions of the trial court. The Court of Appeal is also in a position to evaluate as the trial court, the evidence which has been given in the case. Ebba v. Ogodo (1984) NSCC 255 per Eso JSC.

It is noted that the Court of Appeal should not substitute its view of the evidence for that of the trial Judge, who saw and heard the witnesses. When an issue is not placed before it, it has no business whatsoever to deal with it.

Mere averment without proof of facts pleaded is no proof if facts are not admitted. Thus an averment in pleadings on which no evidence is adduced is deemed to be abandoned. Bijou (Nig.) Ltd v. Osidarohwo (1992) 6 NWLR (pt. 249) 643.

Our courts have deliberately shifted away from the narrow technical approach to Justice which characterized some earlier decisions of courts but instead now pursues the course of substantial Justice. Consortium M.C. v. N.E.P.A. (1992) 6 NWLR (pt. 245) 132 at 142.

An issue of fact cannot rightly be raised in counsel’s final address and in a trial court where pleadings are filed; it can only be properly raised on the pleadings. Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352 at 365 per Nnaemeka-Agu JSC.

Proof of issues in a civil case is on a balance of probabilities and where there is nothing to put on the one side of the imaginary scale, minimum evidence on the other satisfies the requirement of proof. Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352 at 363 – 364; Mogaji v. Odofin (1978) 4 SC 91 at 94 – 96; Nwabuoku v. Ottih (1961) All NLR 487.

In Morgan v. Simpson (1974) 3 All ER 722 Court of Appeal in England; held on this issue of non-compliance as to whether or not it would vitiate the election:-

Under Section 37(1) an election court was required to declare an election invalid

(a) if irregularities in the conduct of an election had been such that it could not be said that the election had been so conducted as to be substantially in accordance with the law as to election’s or

(b) if the irregularities had affected the result.

Accordingly, where breaches of the election rules, although trivial, had affected the result.

That by itself was enough to compel the court to declare the election void even though it had been conducted substantially in accordance with-the law as to elections.

(c) Conversely, if the election had been conducted so badly that it was not substantially in accordance with the election law it was vitiated irrespective of whether or not the result of the election had been affected.

(ii) Although the election had been conducted substantially in accordance with the law as to local elections, the omission to stamp the 44 ballot papers had affected the result of the election which would therefore be declared invalid.

See Haruna v. Modibbo (2004) 16 NWLR (pt. 900) 487 per Aderemi JCA (as he then was).

Where a petitioner make non-compliance with the provisions of the electoral Act the foundation of his complaint, he is fixed with the heavy burden to prove before the Electoral Tribunal, by cogent and compelling evidence, that the non-compliance is of such a nature as to affect the result of the election. He must show and satisfy the tribunal that he is a victim of the alleged malpractices. Hute v. I.N.E.C. (1999) 4 NWLR (pt. 599) 360; Nabatwe v. Mahuta (1992) 99 NWLR (pt. 263) 105; Awolowo v. Shagari (1979) 6 -9 SC 51.

Electoral offence or offences’ alleged in an election petition must have been committed by the respondent or by someone authorised by him. The petitioner owes it as a basic duty to prove that no other individual other than the respondent committed the acts or that he authorised his agents to commit the nefarious acts on his behalf until there is credible evidence in that direction, the respondent cannot be held criminally liable for the alleged criminal acts.

The principle has long been established that no one is punished for the crime of another and it has its maim as ‘nemo punitur pro alieno delicto’. Haruna v. Modibbo (2004) 16 NWLR (pt. 900) 487; Anazodo v. Audu (1999) 4 NWLR (pt. 600) 539; Eboh v. Ogyifor (1999) 3 NWLR (pt. 595) 419; Eseduwo v. I.N.E.C. (1999) 3 NWLR (pt. 594) 215; Oyegun v. Igbinedion (1992) 2 NWLR (pt.226) 474.

The onus of proving a particular act lies on the party asserting it. In civil cases, this onus is fixed by the pleadings, it does not remain static but shifts from side to side. The onus of adducing evidence is on the person who will fail if such evidence is not adduced Basheer v. Same (1992) 4 NWLR (pt. 236) 491 at 503 & 504; Okubule v. Oyagbola (1990) 4 NWLR (pt. 147) 723; Nigerian Maritime Services v. Afolabi (1978) 2 SC; Osawaru v. Ezeiruka (1978) 6 – 7 SC 135.

Averments in pleadings on which no evidence is adduced are deemed to be abandoned as were averments without proof of facts pleaded does not constitute, proof of such facts unless such facts are admitted. Therefore, a party who does not give evidence in support of his pleadings or in challenge of the evidence of the adverse party is deemed to have accepted the facts adduced by the adversary notwithstanding the general traverse. See Basheer v. Same (1992) 4 NWLR (pt. 236) 491 at 502 per Adio JCA; Uwegba v. Attorney -General, Bendel State (1986) 1 NWLR (pt. 16) 303; Adegbite v. Ogunfaolu (1990) 4 NWLR (pt. 146) 578; FCDA v. Naibi (1990) 3 NWLR (pt.138) 270.

In the case of Sorunke v. Odebunmi (1960) SCNLR 414 at 419 per Ademola CJF held that:-

The non-observance of the rules or forms which is to render the elections invalid, must be so great as to amount to conducting the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it had affected or might have affected the majority of the votes, or in other words the result of the election. Having considered the principles above and the judicial authorities alongside the facts, have no difficulty in finding that the non-compliance as alluded to did not affect the substance of the election. This issue is resolved in favour of the Respondents 7th and 8th. Infact on all fronts the consideration, findings and decisions of the Tribunal cannot be faulted and I cannot but agree with them. This appeal lacks merit and it is hereby dismissed. The decision of the trial Tribunal and the orders it made are upheld.

I award N20,000 costs to be paid by the appellants to the 7th and 8th Respondents.

CROSS -APPEAL

The 7th and 8th Respondents in he main appeal that is Alhaji Otaru Salihu Ohize, and Action congress cross-appealed on the following grounds:-

GROUND ONE

The trial Tribunal erred in law and arrived at a wrong decision when it held as follows:-

“We are of the firm view that if the entire petition is read together as it should be, it is clear that the figure of 31st in ground (1) which as paragraph 6 of the petition is obviously a typographical error. Throughout the entire petition, the Petitioner referred to 7th Respondent and it is clear that it is the 7th Respondent’s election that is being challenged. The figure 31st appeared only in paragraph 6 of the petition, based on the clear statement of the Petitioners in paragraph 4 of the petition that the 3rd Respondent declared the 7th respondent as the winner of the election and that the Petitioner possesses the right to challenge the election and/or return of the 7th Respondent and other copies references to the 7th Respondent in the petition it is our firm view that all hues and cries being made by the 7th and 8th Respondent’s counsel on the competence of this petition on that ground are misconceived”.

GROUND TWO

The trial Tribunal erred in law and arrived at a wrong decision when it held as follows:-

“It is our view that the exact words used in the Act having been employed in stating ground 2, the addition of the words and therefore hull and void” appearing at the end of exact words of the statute is severable and does not affect the competence of the ground. It is also our view that those words amount to a conclusion drawn from the ground by counsel and does not in our view derogate from the exact statutory words used in the grounds”.

GROUND THREE

The trial Tribunal erred in law an, arrived at a wrong decision when it held as follows:-

”In this case the Petitioner clearly pleaded in paragraph 3 of the petition that the 439 presiding officers listed therein as agents of the 1st – 6th Respondent. The 7th and 8th Respondents denied he said paragraph 3 of the petition and pleaded that the officials listed are not agents of the 1st Respondent with statutory duties. It is our view that the contention makes no difference because the provision of Section 144(2) and the proviso are very clear and Unambiguhus ….Based on the above we hereby hold that the failure to join officers of the 1st Respondent against whom allegation have been made is not fatal to this petition”.

RELIEFS SOUGHT

1. To vary the decision of the tribunal aid dismiss the petition on the ground that the grounds in support of the petition in support of the petition are incompetent as the tribunal thus lacked the jurisdiction to entertain them.