Richard Idowu Akanmode & Anor V. Melaye Daniel Dino & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This is an appeal against the judgment of the Kogi State National Assembly/Governorship and Legislative Houses Election Petition Tribunal, delivered in PETITION NO. NAGLH/KG/40/2007 on 9th October, 2007. The Petition was dismissed by the trial Tribunal. The Petition was challenging the return of one Melaye Daniel Dino (1st Respondent) as the winner of the election conducted on 21st April, 2007 for the Ijumu/Kabba/ Bunu federal Constituency of the House of Representatives. The election in question was contested by the 1st Appellant, 1st Respondent and four others. The Appellants as petitioners jointly presented the Petition on 21st day of May, 2007. The 1st Appellant was the candidate of the Action Congress in the election while the 2nd Appellant was the political party that sponsored the 1st Appellant as its candidate for the said election. The Petition consisting of 37 paragraphs was accompanied with statements of witnesses on oath and other attachments. The 1st Respondent filed a Reply to the Petition but the said Reply was not accompanied with any witness statement on oath. The 2nd – 109th Respondents jointly or severally did not file any Reply to the Petition. The Appellants filed a Reply to the Reply of the 1st Respondent. The two Grounds of the Petition, as set out therein are:-

“1. The election was invalidated by reasons of corrupt practices and non-compliance with the provisions of the Electoral Act.

2. The 1st Respondent was not duly elected by majority of lawful votes cast.”

The prayers of the petitioners in the Petition are that it be determined:

“1. That the election held on 21st day of April, 2007 wherein the 1st Respondent Melaye Daniel Dino was returned as winner by the 3rd and 4th Respondents of the said Kabba/Bunu/Ijumu Federal Constituency for the House of Representatives election be declared invalid by reason of corrupt practices and the election be declared null and void and a fresh election ordered by this Honourable Tribunal in all the wards.

2. That the 1st Respondent Melaye Daniel Dino was not duly elected as the election was invalid by reason of corrupt practices and noncompliance with the provisions of the Electoral Act.
3. That the 1st Respondent Melaye Daniel Dino was not duly elected by the lawful votes cast at the elections.
4. An Order of this Honourable Tribunal to void the return and election of the 1st Respondent, the election having been invalidated by corrupt practices and non-compliance with the provisions of the Electoral Act.”

Hearing commenced in the Petition on 17/9/2007 and was concluded on 4/10/2007. Only the Petitioners called witnesses at the hearing of the Petition. They called a total of 9 witnesses. As already stated the Election Tribunal in its judgment delivered on 9th October, 2007 dismissed the Petition presented by the Appellants as petitioners and being dissatisfied with the decision of the Tribunal in this regard, the Appellants appealed against the same by filing a Notice of Appeal dated 29th October, 2007 on the same day.

The Notice of Appeal filed by the Appellants contains ten (10) Grounds.

The Grounds of appeal without their particulars are as follows: –

” GROUND ONE

The judgment is against the weight of evidence.

GROUND TWO

The learned Justices of the Tribunal erred in law when they concluded thus:

“We have taken a keen look at Exhibit ‘E’ but find that

(a) It is a situation report in respect of Aiyetoro Ward 1 & 2.

(b) It does not in any way incriminate the 1st Respondent or in any way attribute the violence and thuggery which led to the cancellation of the results in the two wards in Aiyetoro to him.

None of the so called thugs was linked to the 1st Respondent in the entire testimonies of the witnesses except PW9. (pg 29 of the judgment).”

GROUND THREE

The learned Justices erred in law when they used Exhibits A, B and C to discredit PW4, PW5 and PW7 and hence occasioned a miscarriage of justice.

GROUND FOUR

The learned Justices erred in law when they came to the conclusion thus:

We have carefully looked at the issue of the contradictory testimonies of the witnesses as alleged by learned counsel to the 1st Respondent. The stereotype or prototype testimonies of PW, (sic) PW3, PW4, PW6, PW7 and PW8 indeed is to the effect that “many of the eligible voters could not vote at the election because of the use of guns, electoral violence and thuggery”. We refer to their respective depositions.

However under cross-examination those witnesses responded that there was in fact no voting at all on the 21st day of April, 2007 at their respective polling units.

Those witnesses have therefore gone against their own written depositions because the meaning of “many eligible voters could not vote” is that some did actually vote as against their subsequent assertions that nobody ever voted at the polling units.

(Pg. 31 of the Judgment)

GROUND FIVE

The learned Justices erred in law when they concluded thus:

“The witness also quite incredibly told this Tribunal under cross-examination that he had single handedly struggled with four thugs one of whom he said was armed with acid, another armed with a knife and another holding a gun. He said the thug holding the acid container even poured it out to dispel all doubt about the content of what he was holding. Yet pW2 struggled with them to protect the ballot box while every one else took to his heels, including the security agents posted to the polling unit to oversee the security of the area”.

GROUND SIX

The learned Justices misdirected themselves when they misconceived the testimony of pW9 relating to Hon. Smart Adeyemi hence came to a wrong conclusion which occasioned a miscarriage of justice.

GROUND SEVEN

The learned Justices erred in law when they concluded thus:

“It is our view that none of the Respondents was linked with the allegation of thuggery, electoral malpractices and non-compliance with the provisions of the Electoral Act 2006”.

GROUND EIGHT ,

The learned Justices erred in law when they concluded thus:

“If the results of the elections in two out of thirty (30) wards in a constituency are capable of affecting the results of the election in the remaining 28 wards the burden is on the Petitioners to prove it.

There is no such proof’. (pg 35 of the judgment)

GROUND NINE

The learned Justices erred in law when they concluded thus:”

“We find no merit in Petition No. NAGLH/KG/40/2007 between Richard Idowu Akanmode Daniel & Anor Vs Melaye Daniel Dino & 11 (sic) Ors and it is consequently dismissed”, GROUND TEN

The learned Justices erred in law when they rejected the report of the handwriting and tomb (sic) expert products of court orders which evidence was relevant and admissible hence occasioned a miscarriage of justice.”

Briefs of arguments were filed and exchanged. The appeal was heard on 10/3/2008. N.A. Okoye Esq. of counsel for the Appellants’ adopted both the Appellants’ brief of argument and Appellants’ Reply brief dated 20th November, 2007 and 7th February, 2008 respectively in urging this Court to allow the appeal. P.I.N. Ikwueto (SAN) learned senior counsel for the 1st Respondent equally adopted the said 1st Respondent’s brief of argument dated 17th December, 2007 in urging the Court to dismiss the appeal. Likewise C. N. Amadi Esq. of counsel for the 2nd – 109th respondents adopted the brief of the said Respondents dated 25th January, 2008 in urging the Court to dismiss the appeal.

In the Appellants’ brief the issues formulated for the determination of the appeal are as follows: –

“1. Whether the trial Tribunal properly assessed/evaluated the evidence of the petitioners and their witnesses? If the answer is in the negative, whether the improper assessment/evaluation of evidence of the Petitioners and their witnesses occasioned a miscarriage of justice – grounds 2, 3, 4, 5, 6, 7.

2. Whether the Petitioners proffered or sufficiently proved their case to warrant judgment in their favour. Grounds 8 & 9”

The 1st Respondent adopted the issues for determination as formulated by the Appellants in their brief; while the lone issue for determination as formulated in the brief of the 2nd – 109th Respondents is: –

“Whether from the pleadings and totality of the evidence called by the Petitioners/Appellants the trial Tribunal was right in law in dismissing the petition. (Grounds 1 – 10)”

I will adopt the issues formulated by the Appellants and which were adopted by the 1st Respondent in the determination of this appeal.

The Appellants treated Issue No.1, under the following headings:-

“(a) Exhibit E; (b) Exhibits A, B & C; (c) Contradiction; (d) Senator Smart Adeyemi; and (e) PW2 in combat with thugs”.

Dwelling on “Exhibit E”, the Appellants submitted that the Tribunal took it alone and interpreted it as it was. The Appellants contended that the trial Tribunal would have discovered that the 1st Respondent was sufficiently linked with the allegation of violence, thuggery and intimidation and that there was no confusion as to whom Exhibit E was pointing to as the perpetrator of the acts alleged, if the said Exhibit had been considered along with paragraphs 4, 5, 8, 9, 10, 11 and 12 of the deposition of the PW9 at page 119 of the Record and his deposition at pages 165-169 of the Record particularly paragraphs 3(c), f, 4(b), (c), (d), (e) thereof as well as the ipse dixit of the said PW9. Other testimonies linking the 1st Respondent with thuggery and violence which amounted to substantial non-compliance as further highlighted in the Appellants’ brief are contained in the statements on oath of PW1 – paragraph 2 thereof; PW5 – paragraph 4 thereof; PW6 – paragraph 2 thereof; PW7 – paragraph 2 thereof; and PW8 _ paragraph 2 thereof. It was submitted that in the face of the highlighted evidence, the 1st Respondent not only has the duty to deny what was alleged against him in his pleading, but also to testify in denial; otherwise the pleading would be deemed as abandoned. Arabambi & Anor vs. Advance Beverages Ind. Ltd 24 NSCQR 520 at 547 was cited in this regard.

Referring also to section 179 (1) of the Evidence Act which, Provides to the effect that no particular number of witnesses shall in any case be required to prove a fact except as provided in the said section, the Appellants further stated that the statement by the Tribunal to the effect that none of the so called thugs was linked to the 1st Respondent in the entire testimonies of the witnesses except PW9, was an admission by the Tribunal that the said PW9 linked the 1st Respondents with the thugs. It was the submission of the Appellants that the trial Tribunal ought to have accepted the unchallenged evidence before it in the proof of the facts or issues in respect of which the same was given. The facts and issues in the Petition, being that the 1st Respondent was linked with the thuggery and violence on the election day – 21/4/07 and which was directed at the 1st Appellant and electors and further hampered free and fair election as envisaged by the Electoral Act.

Dwelling on “Exhibits A, B & C”, the Appellants stated to the effect that it became necessary to attach the written statements on oath of witnesses to the Petition by virtue of Paragraph 1 (1) (c) of the Election Tribunal & Court Practice Directions 2007. The Appellants submitted that it did not accord with justice to discredit a witness on the basis of non-compliance or partial compliance with the Practice Directions. They stated that “PW4, PW5 and PW7 were said to have been discredited on the basis of the above direction on ground of signature obtained in court and some writing which the Tribunal was called upon to compare. Also that one said he signed before Enwere and another in Okoye’s Office”. It was submitted by the Appellants to the effect that by virtue of section 13 of the Oath Act Cap. 33. Laws of the Federation 1990 and the First Schedule thereto, what is required is material compliance with the Oaths Act and not where the signature was signed. The case of Maraya Plastic Ltd Vs Inland Bank (Nig) Plc (2002) 7 NWLR (Pt.765) 109 at 120 and Order 10 Rule 3 of the Federal High Court Rules were also cited in support of the submission.

The Appellants stated that it will amount to extreme technicality for the Tribunal to rely on irregular signature or place of signing or signing in Arabic to discredit a witness and the case of University of Lagos & Anor Vs Aigoro (1984) 1 NWLR (Pt.1) 143 was cited. On the issue of Arabic learned counsel for the Appellants, stated to the effect that he is not learned in it; and that he was sure that at least three out of the live Judges that constituted the Tribunal do not understand Arabic. The Appellants submitted that the court cannot use its personal knowledge of Arabic on which counsel is ignorant to discredit a witness as the question of language is an Art and therefore within the domain of section 57 of the Evidence Act. That an expert ought to have expressed his opinion in English language to show that the signature is not Arabic and it was not for the Tribunal to act as a Court and witness.

On “contradiction” the case of Ayo Gabriel Vs The State (1989) 5 NWLR (Pt.122) 457 was cited on what is meant by contradictions in the Law of Evidence and the nature of contradictions upon which the court will find evidence or testimonies of witnesses to be contradictory. Other authorities referred to on the issue of contradiction are Introduction to Logic by M. Copi & Carl Cohen (Eleventh Edition) and the case of Nathaniel Nasamu Vs The State. It was submitted by the Appellants that their witnesses did not contradict themselves on material points in paragraphs I and 2 of their respective statements on oath. The assertion by the witnesses that there was no voting at all in their respective units, the Appellants also said, was no contradiction. Answering the question they posed as to what “has no voting at all at their respective units” got to do with “many eligible voters could not vote at the election”, the Appellant stated that ‘while no voting at all’ has to do with ‘their’, respective units, eligible voters ‘could not vote at the election’ has to do with the election of 21/4/2007 in general. They submitted to the effect that it was the duty of the cross-examiner to question the witnesses on facts upon which the general statement of opinion of the witnesses was based. The Respondents, the Appellants stated failed to utilise the opportunity in this regard and to that point the statements remained unchallenged with the attendant disastrous consequences of unchallenged testimonies which must be accepted. According to the Appellants, the Tribunal, instead of accepting the piece of unchallenged evidence, explained the same away on the ground of contradictions thereby occasioning a miscarriage of justice. The Appellants urged this Court to hold that there is no contradiction between the statements on oath and the ipse dixit of PWs 2, 3, 4, 6, 7 and 8 which is a continuous explanation of what happened at the election of 21/4/2007 in general, to what happened at their respective units. The assertion in or of negative, the Appellants further submitted, cannot amount to falsehood. Another surprising thing the Tribunal did according to the Appellants, is that the evidence of PW5 who testified that he struggled with the thugs was ascribed to PW2 and used to discredit the said PW2. This, the Appellants submitted, amounted to improper evaluation and misrepresentation of the testimonies of the two witnesses namely. PW2 and PW5.

On the matter of Senator Smart Adeyemi, the Appellants raised the question as to whether the election of the said Senator was an issue before the Tribunal and upon which the Tribunal could predicate its judgment. Reference was made to the book titled Civil Procedure in Nigeria by Fidelis Nwadialo (Second Edition) at page 301 and the cases of Ashiru Noibi Vs RJ Fikolati & Ors (1987) 2 SC 105 at 119 and Jolayemi Vs Olaoye (2004) 12 NWLR (Pt.887) 332 at 340 in respect of the essence of pleadings and effect of pleadings not supported by evidence. The Appellants stated that the Respondents abandoned their pleadings at trial. They further stated to the effect that the issue as to how Senator Smart Adeyemi was elected and whether his election was being challenged is irrelevant as it was not covered by the pleadings in the petition. Any evidence in support of those facts therefore ought to be expunged from the record. The Tribunal according to the Appellant however not only took judicial notice of the election of Senator Smart Adeycmi but failed to take judicial notice of that the constituency of the said Senator Smart Adeyemi is comprised of 7 (seven) L.G.As while that of the 1st Petitioner is comprised of only 2 (two) L.G.As. The Appellants raised the question as to whether it was in Aiyetoro I & II where election was cancelled that AC members voted for Senator Smart Adeyemi assuming AC members voted for him. Senator Smart Adeyemi, the Appellants stated could have won the election with or without the two L.G.As of the 1st Petitioner. Furthermore the fact that Senator Smart Adeyemi is a gentleman and that no one was challenging his election the Appellants stated,

did not distract from the evidence of PW9 to the effect that whoever emerged through the process was allocated votes and which testimony remained unchallenged and should be accepted. The Appellants submitted that any conclusion using the issue of Smart Adeyemi to discredit the witness was begging the question. They urged this Court to expunge the evidence concerning Smart Adeyemi from the record or to take judicial notice that his constituency is made up of 7 L.G.As as this is contained in “INEC DOCUMENT”. The case of Ajadi Vs Ajibola & Ors (2004)16 NWLR (Pt. 898) 91 at 167 was cited in aid.

On the issue of “PW2 in combat with the thugs”, the Appellants stated that there was nothing incredible in a man struggling with four thugs. They asked the question as to what was incredible about resisting oppression, injustice and violation of right in Nigeria. The Appellants submitted that there was no basis at all for the Tribunal to have discredited PW2 or indeed any other witness for that matter on the ground that they resisted the thugs, as thugs after all are human beings like any other person.

Dwelling on Issue No.1 in his brief of argument, the 1st Respondent at the onset submitted that the subsidiary question postulated in the said Issue 1, will become completely irrelevant and without basis if the Issue as to whether the trial Tribunal properly assessed/evaluated the evidence of the Petitioners and their witnesses is resolved positively. The 1st Respondent stated that the law is settled on the attitude of the Court of Appeal to the evaluation and assessment of evidence by a trial court. In this regard the Respondent stated “that the appraisal of oral evidence and ascription of probative value to evidence is the primary duty of the trial court and a Court of Appeal will only interfere with the performance of such function if the trial court has made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support”. The cases of Fashanu v. Adekoya 1974 1 All NLR; Eki v. Giwa 1977 2 SC 131 at 136; Ajani v. Ladepo 1986 3 NWLR (Pt. 28) 276 at 303; SCC Nig. Ltd v. Elemadu 2005 7 NWLR (Pt. 923) 28 at 83; and Ngige v. Obi 2006 14 NWLR (Pt. 999) 1 at 210 were cited in aid. The 1st Respondent submitted that this appeal was not predicated on this accepted legal position. It was further submitted that where a trial court has undoubtedly evaluated and appraised the facts as was done in the instant case, it is not the business of a Court of Appeal to substitute its own views for those of the trial court that saw and heard the witnesses. This is more so when a finding by the trial court is founded on the credibility of witnesses. The cases of Akinloye v. Eyiyola 1968 NMLR 92 at 95; Ebba v. Ogido 1984 15 NSCC 255 at 267; and Nnajiofor v. Ukonu 1985 2 NWLR (Pt. 686 at 688 were cited in aid. According to the 1st Respondent, the function of this Court in relation to the judgment of the lower Tribunal is not to re-open the dispute and start trying the case afresh but to oversee, superintend and review the way the dispute and the issues arising therefrom were tried and see whether the Tribunal used the correct procedure and arrived at the correct and proper decision. The cases of Board of Customs v. Barau 1982 10 SC 48 at 137; Ogbechie v. Onchie 19862 NWLR (pt.23) 484 at 492-493; and Obodo v. Ogba 1987 2 NWLR (Pt.54) 1 at 10 were cited in aid.

The 1st Respondent stated to the effect that what the Appellants have engaged in is the review or the assessment and evaluation of the evidence of their witnesses in order to make the point that the performance -by the learned Judges of the Tribunal of their duty should he supplanted with the evidence as perceived by them (i.e, Appellants). The Court was urged to decline the invitation in this regard and to re-affirm that it is not a trial court. The invitation of the Appellants, it was also stated was nothing short of a subtle one to this Court to substitute the findings of the Tribunal on the credibility of the witnesses that testified before it and whose demeanours the Tribunal had the advantage of watching. The 1st Respondent submitted that upon a dispassionate examination of the judgment of the trial Tribunal, the said Tribunal took good advantage of seeing the witnesses and correctly evaluated the evidence adduced before it. That, this being the case, this Court will not interfere with the findings and conclusions of the Tribunal. The cases of Lawal v. Dawodu 1972 1 All NLR 270; Omoregie v. Idugiemwanye 1985 2 NWLR (Pt. 5) 41; and Zenon Petroleum & Gas Ltd v. Idrissoya Ltd 2006 8 NWLR (Pt.982) 221 were cited in aid. In conclusion, the 1st Respondent not only urged the Court to resolve Issue, 1, against the Appellants but also stated that Issue 2; has no foundation on which to stand.

The 2nd – 109th Respondents (hereinafter simply referred to as “the Respondents”) in their brief of argument, amongst others, dwelled on “the main function of a trial court”, In this respect, they stated that it is for the trial court/Tribunal to appraise and evaluate evidence cum the exhibits tendered and to thereafter ascribe probative value thereto taking into cognisance the credibility of the witnesses to arrive at a just decision. The cases of Isah On Ors Vs Ibrahim Idu & Ors (2006) 12 NWLR (Pt. 995) 657; Fagbenro Vs Arobadi (2006) 7 NWLR (Pt. 978) 172; and Zenon Pet & Gas Vs Idrissiya Ltd (supra) amongst others were cited in this regard. They submitted to the effect that the heavy weather the Appellants have made in respect of Exhibit E and from which they erroneously expected the trial Tribunal to infer or accept the allegations of thuggery and electoral violence cannot be used for that purpose. This is because the Exhibit in question which is a situation report: (i) covers two out of the 13 Wards in the Federal Constituency; and (ii) the report stated that both the 1st Appellant and the 1st Respondent were present before a group of angry looking mob came and started throwing stones. The Respondents submitted that there was no direct or circumstantial evidence linking the 1st Respondent with the angry mob or establishing, that the 1st Respondent was responsible for the tense situation reported. The Court was urged to carefully examine the said Exhibit E which is at page 34 of the Record of Appeal. The Respondents further submitted that there was no nexus between Exhibit E and paragraphs 4, 5, 8, 9, 10, 11 and 12 of the deposition of PW9 save mere allegations which required proof. The standard of proof in this regard, the Respondents stated, was that of “proof beyond reasonable doubt”. They submitted that the Petitioners merely asserted and alleged without proof and that there is no rule of substantive or procedural law that required a Respondent to adduce evidence in respect of an allegation made against him but which has not been sufficiently proved. The cases of Akalezi v. The State (1993) 2 NWLR (Pt.273) 1; State v. Usman (2005) NWLR (Pt. 906) 80 at 161; and Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 were cited on the issue of proof beyond reasonable doubt.

Dwelling on the testimony of PW9 (i.e. 1st Petitioner/1st Appellant), the Respondents submitted that the same was materially contradictory. This is because he said in one breath that there was no credible election in the State and that all those retuned were merely allocated votes and in another breath he described Senator Smart Adeyemi as a man of integrity and that many people including members of the Action Congress voted for him. The Respondents slated to the effect that it was interesting that the election of Senator Smart Adeyemi who is a member of an opposing party – PDP; took place on the same date and time with the election being challenged by the Petitioners/ Appellants.

The Respondents cited the case of Kalu v. State [1993] 3 NWLR (Pt.279) 20 at 29 on the probative value of contradictory evidence. The Respondents urged this Court not only to hold that the testimonies of the PWs 1, 3, 4, 6, 7 and 8 are tailored and cannot be truthful or credible but also that the Tribunal was right to have disbelieved and disregarded the same. This is because the statements on oath of the six witnesses and which they respectively adopted as their testimonies before the Tribunal are similar in all material facts and details.

In respect of Exhibits A, Band C, the Respondents stated that they are signatures and specimen handwriting of witnesses called by the Petitioners and that the Tribunal had the duty to ascribe probative value to them taking into consideration the surrounding circumstances. That one important thing the trial Tribunal must take into account during examination in chief and cross-examination is the demeanour of witnesses, that the signature of PW4 tendered in the open court was admitted as Exhibit A and upon evaluation the Tribunal discredited the same as being completely different from that contained in his purported statement on oath and that no explanation was given for the sharp difference by the witness. PW7 told the Tribunal that he signed his statement on oath in his lawyer’s office. This the Respondents in effect stated is in contravention of section 13 of the Oaths Act (supra) which provides for the voluntary making of such a statement before the Commissioner for Oaths and not in the solicitor’s office not being a Commissioner fur Oaths.

As earlier stated the Appellants filed a Reply brief. Suffice it to say that all the Appellants did in the Reply was basically to re-argue the aspect of their appeal in relation to assessment and evaluation of evidence and to supply additional authorities on the issue, Again though learned counsel for the Appellants made oral submissions in adumbration (If the Appellants’ briefs, the same was virtually a repetition of submissions already contained in the said briefs. Learned senior counsel for the 1st Respondent, dwelling on Exhibit E at page 34 of the Record, in his oral submissions said that parties never disputed that there was no election in Aiyetoro Wards I and II to which, the Exhibit relates. He also submitted that the issue of the validity of the election of Smart Adeyemi completely knocked the bottom out of the Appellants’ case. This is because if the election was peaceful in a larger area, it stands to reason that the same election cannot be established to be bad given what is alleged to have happened in a small part of the area.

ISSUE I

Issue I is glaringly in two parts. The first part is whether the trial Tribunal properly assessed/evaluated the evidence of the petitioners and their witnesses. It is if the answer to this question is in the negative that there will be need to consider the second part of the said ISSUE.

The law is indeed settled that the task of evaluation of evidence is primarily the responsibility of the trial court that had the opportunity of seeing, hearing and assessing the trustworthiness of the witnesses who gave evidence in proof of pleaded facts. Where the trial court failed to discharge this duty and in spite of its privileged position either did not evaluate the evidence led at all or drew wrong conclusion from the exercise, the Court of Appeal would be right to step in and undertake the duty that has remained unfulfilled. Also where the evaluation complained of, does not turn on the credibility of witnesses, for instance if it rests on the probative value to ascribe to documentary evidence, then the Court of Appeal is in as much position as the trial court to conduct the evaluation. Where the trial court’s decision is shown to have evolved from the evidence in proof of the case of parties before it, the Court of Appeal cannot interfere to set the same aside since such decision is not perverse. See ALHAJI LASISI GBADAMOSI & ANOR V. THE GOVERNOR OF OYO STATE & ORS [2006] All FWLR (Pt. 326) 224 at 232; ALHAJI JIMOH ODUTOLA V. CALEB SANYA & ORS [2008] All FWLR (Pt. 400) 780 at 797-798; and H.R.H KINGDOM DATEME & ORS V. ISAAC DUKE & ORS [2006] All FWLR (Pt. 313) 159 at 176 & 177. Indeed in the case of CHIEF J.A. ADENUGA & ANOR V. WOLI ELIJAH OKELOLA [2008] All FWLR (Pt. 398) 292 at 304-305 this Court, dwelling on “evaluation of evidence” referred to the case of Bassil v. Fajebe (2001) 11 NWLR (Pt.725) 592 at 608 where Ayoola JSC stated thus:-

“Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it. That any decision arrived at without a proper or adequate evaluation of the evidence cannot stand is now a truism, evaluating evidence does not stop with assessing the credibility of witnesses, although that, in appropriate cases, is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case, in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make”.

It has been argued by the Appellants that it was wrong of the trial Tribunal to have taken Exhibit E alone and to have interpreted it as it is. That if the said Exhibit had been considered along with the depositions of PW9 (i.e, 1st Appellant) at page 119 and pages 165-169 respectively of the Record; and his ipse dixit, the Tribunal would have discovered that the 1st Respondent was sufficiently linked with the allegations of violence ,thuggery and intimidation. That it would have been obvious to the trial Tribunal that there was no confusion as to whom Exhibit E is pointing to as the perpetrator of the alleged acts.

The judgment of the trial Tribunal is at pages 967-1003 of the Record. The trial Tribunal set out the issues arising for determination in the Petition at page 991 of the judgment. The two issues read thus:-

“1. Whether or not the 2nd Respondent is a necessary party in this petition,

2. Whether on the evidence before the Tribunal the Petitioners have discharged the onus of proof to entitle them to the reliefs sought by them.”

The trial Tribunal having concluded that the 2nd Respondent was not a necessary party in the Petition struck out the name of the said party. The conclusion of the Tribunal in this regard is definitely not the subject of any of the grounds of appeal of the Appellants or the issues distilled from the grounds of appeal and which issues by the Appellants’ showing even did not include grounds one and nine of the grounds of appeal.

It is clear from page 995 of the Record that the Tribunal appreciated the reliance placed by the Appellants on Exhibit E as establishing the direct involvement of the 1st Respondent in the use of guns and ammunition on the election day and that the submission in that regard was given due consideration. For this purpose the trial Tribunal even set out verbatim the content of the said Exhibit. The findings of the Tribunal in respect of Exhibit E are (i) that it is a situation report in respect of Aiyetoro Wards I and 2: and (ii) that it does not in any way incriminate the 1st Respondent or in any way attribute the violence and thuggery which led to the cancellation of the results in those two Wards in Aiyetoro to him. The Tribunal also said that none of the so called thugs was linked to the 1st Respondent in the entire testimonies or the witnesses except PW9. Indeed the Tribunal observed that the names of both the 1st Respondent and 1st Appellant were mentioned in the Exhibit.

Exhibit E is titled “AIYETORO (1) & (II) WARDS: SITUATION REPORT”. The said Exhibit is clear about its subject matter. The law is that where a document is clear, the Operative words in it are to be given their simple and ordinary grammatical meaning. One is not to read into the document what is not there. A document duly pleaded and tendered once admitted is the best evidence of its content and therefore speaks for itself. SEE GOVERNOR OF OGUN STATE V. MR. ADEGBOYEGA ADEBOLA COKER (2008) ALL FWLR (PT.406) 1900 AT 1913; DIVINE IDEAS LIMTIED V. HAJA MERO UMORU (2007) ALL FWLR (PT.380) 1468 at 1500; AND VERA EZOMO v. NEW NIGERIA BANK PLC & ANOR (2007) ALL FWLR (PT.368) 1032 AT 1065. That is all the trial Tribunal had done in relation to Exhibit E. There is nothing in Exhibit E that admits of the ipse dixit of PW9 and which in any case cannot alter the content of Exhibit E. This is more so as the makers of the said Exhibit, never pretended to know the identity of any person in the mob of angry looking thugs, talk less of remotely suggesting that they were championing the cause of the 1st Respondent and the 1st Appellant. Exhibit E simply goes to establish the fact that the election in Aiyetoro Ward 1 and II which never held in any case, was cancelled given the activities of a mob of angry thugs at the Aiyetoro Police Station which prevented the makers of the Exhibit from going to their duty posts. From all that has been said, i therefore do not see any infraction of evaluation committed by the trial Tribunal in relation to Exhibit E.

Exhibits A, B and C as disclosed in the judgment of the trial Tribunal were tendered in evidence during the cross-examination of PW4; PW5; and PW7. Exhibit A is a signature signed by PW4. Exhibit B is a signature signed by PW5. Exhihit C is the specimen handwriting of PW7. A party to an action who wishes to show that the evidence given by the opposing party should be disregarded or disbelieved has the duty to demonstrate this by cross-examination. It is lawful or permissible for a party cross-examining a witness to elicit from the witness evidence which is favourable to the party cross-examining or which tends to disprove or contradict the case of the party that produced the witness. See DOTUN FATILEWA & ANOR V. THE STATE (2007) ALL FWLR (pt.347) 695 at 721-722. Indeed the Evidence Act, Cap. E 14 Laws of the Federation of Nigeria 2004, in section 200 specifically provides among other things, that a witness under cross-examination may be asked questions which tend to test his accuracy, veracity or credibility; or to discover who the witness is and what is his position in life; or to shake the credit of the witness by injuring his character. It has not been submitted by the Appellants (and such submission in any event would have been absurd) that the witnesses called by the Petitioners cannot be asked questions under cross-examination for the purpose of casting doubt on the written statements adopted by PWs 4, 5 and 7 respectively as their evidence before the Tribunal and that the signatures admitted as Exhibits A and B and specimen writing admitted as Exhibit C; were not properly obtained under cross-examination for this purpose. The contention that the trial Tribunal cannot rely on the admission among other things by PW7 that he did not sign his written statement on oath before the Commissioner for Oaths in ascribing credibility to his evidence on the ground that the Oaths Act does not require the signing of such a statement before the Commissioner for Oaths is somehow preposterous. If the deponent to a witness statement on oath did not appear before the Commissioner for Oaths to swear to and sign such a statement before the said official, how then can it be said that the claim of the deponent that he swore before the Commissioner for Oaths is truthful. In other words if a deponent to a statement on oath admits that he never signed his statement before the commissioner for Oaths, can it then be said that he actually made the written statement in question on oath? The answer in my view is clearly in the negative. The case of Maraya plastic Ltd Vs Inland Bank (Nig) Plc (2002) 7 NWLR (Pt. 765) 109 at 120 and Order 10 Rule 3 of the Federal High Court Rules are no authorities relieving a deponent to a written statement said to have been made on oath from making the same before a Commissioner for Oaths. Appellants have made heavy weather about the observation by the trial Tribunal that the signature obtained from PW 5 was neither Arabic nor English. They would however appear to have lost sight (If the fact that the said Tribunal also found the signature which it observed to be neither Arabic nor English not to correspond with the one which the said witness claimed to have made before the Commissioner for Oaths in his written statement on oath. Surely the fact that the trial Tribunal found the signature obtained from PW 5 under cross-examination not to correspond to the one he claimed to have made before the Commissioner for Oaths sufficiently impugned the credibility of the said witness as concluded by the trial Tribunal. The trial Tribunal eminently had the power to compare the signatures/writing admitted by PWs 4, 5 and 7 to be theirs and those in Exhibits A, B and C made by them under cross-examination. See the case of PROFESSOR AKIN MABOGUNJE & ORS V. MR. ADEMOLA ADEWUNMI & ORS (2007)All FWLR (pt. 347) 770 at 790- 792. I therefore do not find any improper evaluation of Exhibits A, B and C made by the trial Tribunal given all that has been said before now.

On “Contradictions” the portion of the judgment of the trial Tribunal that the Appellants concentrated on, is where the Tribunal stated thus: –

“We have carefully looked at the issue of contradictory testimonies of the witnesses as alleged by the learned counsel to the 1st Respondent. The stereotype or prototype testimonies of PW1, PW3, PW4, PW6, PW7 and PW8 indeed is (sic) to the effect that “many of the eligible voters could not vote at the election because of the use of guns, electoral violence and thuggery”. We refer to their respective depositions.

However under cross-examination those witnesses responded that there was in fact no voting at all on 2nd April, 2007 at their respective Polling Units.

Those witnesses have therefore gone against their own written depositions because the meaning of “many eligible voters could not vote” is that some did actually vote as against their subsequent assertion that nobody ever voted at the said Polling Units.”

The Appellant is dwelling on this issue stated that while “no voting at all” has to do with the respective units of the witnesses; eligible voters “could not vote at the election” has to do with the election of 21/4/2007 in general. According to the Appellant, it was the duty of the cross-examiner to have questioned the witnesses on the facts upon which the general statement of opinion was based.

The written statement of each of the PWs referred to in the judgment of the trial Tribunal was in respect of the named or specified Polling Unit. They all claimed not to have voted in the election in their respective units because they were driven away by thugs and agents of the PDP candidate at the election. The trial Tribunal definitely rightly observed that the written statements on oath of the witnesses are stereotype or prototype. There is absolutely nothing in the said statements remotely suggesting that it was not in the same election in which each of the witnesses claimed not to have voted, that they further claimed that many eligible voters apart from them could not vote because of the use of guns, electoral violence and thuggery. In other words, the statement on oath of the witnesses in question did not show on their faces that the said witnesses were expressing a general statement of opinion in respect of the election of 21/4/2007 in general as contended by the Appellant. I find the argument that “eligible voters could not vote at the election” referred to the election of 21/4/2007 in general to be tenuous and not borne out by the written statements on oath of the witnesses in question. The finding of the trial Tribunal that PWs 1, 3, 4, 6, 7 and 8; contradicted their written depositions which were adopted as their respective testimonies when they stated under cross-examination that nobody voted at their polling units is in the circumstances unassailable.

The appellant also contended that there was improper evaluation and misrepresentation of the testimonies of two witnesses, namely, PW2 and PW5. At pages 997 – 998 of the Record the trial Tribunal stated thus:-

“The testimony of PW2 Chief Mathew Dada also appears to us to be quite incredible. This witness under cross-examination said when the said thugs came to his Unit wielding dangerous (sic) he just stood bye (sic) watching them at his Olorunjo Unit. In another breath he said he too, took to his heels ‘like every other voter. He however stayed at a distance watching them.

When further questioned by counsel to the 3rd- 112th Respondents this witness (PW2) said he had initially resisted the thugs but they started shooting guns.

He also said many people who had been to the Polling Unit voted.

This testimony is in sharp contradiction with that of the 1st, 3rd, 4th, 6th, 7th and 8th Petitioners witnesses.

PW5 Mallam Wasiu Yakubu, the AC agent at Odokoro polling Unit who said he had signed his deposition on 21st May, 2007 when asked to repeat the signature could not do so. Exhibit ‘B’ is certainly a far cry from the signatures against the deposition or the witness. He sought to hide behind the fact that the signature was in Arabic letters. However the signature on close scrutiny is neither Arabic nor English, May be something else. The signature does not also correspond with the one said to have made by the witness before the commissioner for Oaths.

The witness also quite incredibly told this Tribunal under cross-examination that he had single handedly struggled with four thugs one of whom he said was armed with acid, another armed with a knife and another one holding a gun, He said the thug holding the acid container even poured it out to dispel all doubt about the content of what he was holding. Yet PW2 struggled with them to protect the ballot box while every one else took to his heels, including the security agents posted to the Polling Unit to oversee the security of the area,

We disbelieve this witness and believe he was definitely telling some fairly (sic) tale”.

The evidence of PW2 under cross-examination can be found at pages 590-596 of the Record; while that of PW5 is at pages 629-639. The trial Tribunal reviewed the evidence of these two witnesses at pages 973 and 973-974 respectively of the Record. It is my firm view that given the evidence of both PW2 and PW5 on Record and the review of the same carried out by the trial Tribunal there is no doubt that the Tribunal concluded whatever it had to say in relation to PW2 in the third paragraph of page 998. What the Tribunal said thereafter from paragraph 4 to paragraph 6 on the said page 998 was in relation to PW5. True it is that “PW2” appeared in paragraph 5 but it is only commonsensical to appreciate that it is nothing more than a slip as PW2 never said any of the things rightly stated by the Tribunal to have been said by PW5. In the circumstances I find no substance in the argument of the Appellants that the trial Tribunal ascribed the evidence of PW5 to PW2 and thereby committed improper evaluation and misrepresentation of testimonies.

Now, to the issue of Senator Smart Adeyemi. The issue of Senator Smart Adeyemi as can be seen from a scrutiny of the Record came into the case during the cross-examination of PW9. The trial Tribunal dwelling on the issue or Senator Smart Adeyemi in its judgment (see page 999 of the Record) stated thus: –

“We are left with the 1st petitioner’s testimony who testified as PW9. He told the Tribunal that the elections results in respect of Aiyetoro 1 and 2 were cancelled. Those wards consisted of 13 Units. He also told the Tribunal that the entire Constituency consisted of 30 wards and 175 Unit. Quite surprisingly however, this witness under cross-examination told the Tribunal that the Senatorial election for the Constituency also scheduled for the 21/4/07 had taken place and Hon. Smart Adeyemi, whom he called a man of integrity, emerged the winner of the election. He said the AC was not contesting the election of Hon. Smart who is of PDP. That the AC party members had even voted for Mr. Smart across party lines.

It is our view that this piece of evidence is rather inconsistent with the Petitioners grand stance that the elections in the areas had been marred by corrupt practices and non-compliance, thuggery and violence”.

The Appellants in urging this Court to expunge the evidence relating to Senator Smart Adeyemi from the Record have argued that the said issue was never raised in the pleadings and that the evidence relating to the said Smart Adeyemi therefore went to no issue. I hold the view that the submission of the Appellants in this regard clearly overlooks the fact that what is in issue in the Petition, given their own case is whether or not the election for the House of Representative held for the Kabba/Bunu/ljumu Constituency was marred by corrupt practices, non-compliance and violence. The 1st Respondent was definitely entitled to elicit from the Appellants’ witnesses under cross examination, evidence that went to show that the case of the Appellants ought not be believed given the fact that other elections held on the same day and at the same time with the one in which the 1st Appellant was a contestant were not marred by what the Appellants alleged to have marred the election contested by the said 1st Appellant. And it is clear from the portion of the judgment of the trial Tribunal reproduced above, that it was in that regard that the evidence relating to the election of Smart Adeyemi was utilised. See also page 1000 of the Record where the trial Tribunal stated thus:

“On the probative value of contradictory evidence, the Court of Appeal held in the case of KALU V. STATE (1993)3 NWLR (PT.279) P. 20 PARAS D-E – that:

“When witnesses to one incident reproduce the same or uniform account of that incident, the danger is that their evidence has been tailored and doctored. In actual life, there is bound to be minor variations in the account of truthful witnesses. But when witnesses contradict one another on material particulars, then they should not be believed.”

We uphold the submission that the account of the events as narrated by PW9 is materially contradictory. If there was no credible election on the day how come Smart Adeyemi was validly elected on the same day and many people including members of the 2nd Petitioner (Action Congress) voted for him. It is quite preposterous and incongruous to agree that for the House of Representatives elcctions there was no voting or that majority of eligible voters were not allowed to vote due to widespread thuggery, violence and snatching of ballot boxes while the same voters at the same time, same venue peacefully elected the Senatorial candidate. That position must be and is hereby rejected.”

I find the inference drawn by the trial Tribunal from the evidence elicited from PW9 under cross-examination in the portions of the judgment earlier reproduced to be very much in order. The Appellants, have they been so minded could have sought to re-examine PW9 for the purpose of explaining away the answers. This they never did and they cannot now give evidence in that regard in their brief.

The last of the various issues treated by the Appellants under ISSUE I, is titled “PW2 in combat with the thugs”. The written statement on oath of the witness and which he adopted as his evidence before the Tribunal is at page 121 of the Record. Therein the witness among others said to the effect that everyone who was not a PDP member left the Olorunjo Polling Unit in the Odo-Akete Ward when the thugs of the PDP invaded the Unit, took the ballots bags, emptied and burnt their content, and replaced in the ballot bags ballot papers already thumb printed for the PDP. The witness made it clear that he was a registered member of the AC. The Appellants have asked the question as to what was incredible about a man struggling with four armed thugs. The evidence of PW2 under cross-examination is at pages 590-596 of the Record. The witness did not state therein that he struggled with any specific number of thugs. It is therefore not clear to me how the Appellants came up with the number of thugs to be four as stated in their brief: In any event what the trial Tribunal found to be incredible as inferable from the judgment is the picture created by the witness when he slated under cross-examination in one breath that he just stood by watching, when thugs wielding dangerous weapons invaded his Polling Unit; in another breath said that he too took to his heels like every other voter but that he stood at a distance watching the thugs; and again further said that he had initially resisted the thugs but that they started shooting guns, It would appear clear that the glaring and constant embellishment of his story is what informed the ascription of incredibility by the trial Tribunal to the testimony of the witness and which necessarily included his evidence in chief. Again, I find nothing wrong with the evaluation of the evidence of PW2 in this respect by the trial Tribunal.

The duty is on the Appellants who raised the issue of improper assessment/evaluation of evidence to identify or specify the evidence not properly assessed/evaluated and to show that if the error complained of had been corrected the conclusion would have been different and in their favour. See: THE STATE V. BAKO YUSUF & ANOR (2007) All FWLR (Pt.377) 1001 at 1010-1011. The five heads of improper assessment/evaluation of evidence specified or enumerated by the Appellants have been duly considered and I have not found the trial Tribunal to have engaged in the improper assessment/evaluation of evidence under any of the said heads. There is no finding of the trial Tribunal based on any aspect of the evidence considered under the heads found to be perverse, Accordingly, ISSUE 1 must be and is hereby resolved against the Appellants.

ISSUE 2

“WHETHER THE PETITIONERS PROFFERED OR SUFFICIENTLY PROVED THEIR CASE TO WARRANT JUDGMENT IN THEIR FAVOUR.”

Dwelling on this issue in their brief, the Appellants again embarked upon the review of the evidence of each of their witnesses before the trial Tribunal and submitted in the main that the Tribunal failed to properly assess the evidence of the said witnesses before apportioning probative, value to the witnesses. That the trial Tribunal could not hide under the cloud of “I believe or I disbelieve” which is akin to an abdication of duty and that such a duty at this point will be done by the Court of Appeal. The case of Samuel Ola Oladehin v. Continental Text Mills Ltd (1978) 2 SC at 32 and 35 was cited in aid of the submission. The Appellants submitted that they had proved the case of violence, intimidation and thuggery upon which their Petition is predicated and that it was so wide spread that it substantially affected the outcome of the election. This Court was urged to properly assess the evidence, (as the trial Tribunal abandoned this duty) and do the proper thing, which is nullification of the election. The Appellants submitted that what is required is proof beyond reasonable doubt and not one beyond all shadow of doubt and that they sufficiently discharged the primary onus on them but that the trial Tribunal missed the mark as a result of its improper evaluation of evidence which has occasioned a miscarriage of justice. The Appellants also submitted that the Respondents failed to discharge the secondary onus on them by refusing to adduce evidence which rendered improbable the evidence of the Petitioners’ witnesses and cited the case of Bakare vs. The State (1987) 3 SC I at 32-34 in aid of the submission.

In his brief, the 1st Respondent submitted that the argument of the Appellants on this ISSUE is predicated on the assumption that the evidence of their witnesses ought to be believed by the trial Tribunal. The 1st Respondent said that the trial Tribunal after evaluating the evidence of the Appellants’ witnesses disbelieved them and found as a fad that the evidence of the said witnesses were contradictory. It was submitted by the 1st Respondent that the law is trite that evidence which is not believed cannot possibly form the foundation of any defence nor can such evidence support the proof of any allegation. The case of Alade vs. Alemuloke 1988 1 NWLR (Pt. 69) 207 was cited in aid. The 1st Respondent said to the effect that the burden of proving the allegation of thuggery and violence beyond reasonable doubt rests on the Petitioners given the gist of the allegation of the Appellants that the election and return of the winner of the House of Representatives election held on 21/4/2007 was invalid by reason of thuggery and the position of the law in that regard. The cases of Yusuf vs. Obasanjo 2005 18 NWLR (Pt. 956) 96 at 186 and 122; and Kanya vs. Babura (1993) 2 NWLR (Pt.280) 149 at 166 were cited in aid. The trial Tribunal the 1st Respondent submitted was alive to its judicial function and ‘duly discharged the same given its findings in respect of the evidence of PWs 1, 3, 4, 6, 7 and 8; and PWs 2, 5 and 7; as well as PW9 (i.e. the 1st Appellant). The cases of Onubogu vs. The State (1974) 9 NSCC 358 at 366; and Kalu vs. State 1993 3 NWLR (Pt. 279) 20 at 29 were cited on the position of the law regarding inconsistent and contradictory evidence in respect of an allegation required to be established beyond reasonable doubt. The Court was urged to resolve ISSUE 2, against the Appellants as the evidence before the trial Tribunal was dearly contradictory and inconsistent as rightly found by the said Tribunal.

The Respondents in their brief submitted that the trial Tribunal did not err in law or in its findings of facts when it dismissed the Petitioners/Appellants’ Petition as lacking in merit the said Petitioners having failed to discharge the onus of proof imposed on them by law, The Respondents said that the allegations of electoral malpractices, thuggery and electoral violence made in the pleading of the Petitioners are all criminal allegations for which the law required proof beyond reasonable doubt. The Respondents submitted that the Appellants failed to discharge the burden of proof in this regard to the satisfaction of the trial Tribunal. The Respondents said to the effect that failure on their part to adduce evidence did not materially affect their case as the Petitioners/Appellants are to succeed on the strength of their case and not on the weakness of the defence. The cases of Woluchem vs. Gudi (1981) 5 SC 291; and Jang vs. Dariye (2003) 15 NWLR (Pt. 843) 346 at 467 as well as section 138 (1) of the Evidence Act were cited in aid. The Respondents also submitted that where the commission of a crime by a party to any proceeding (civil or criminal), is directly in issue in the proceedings, the commission of the crime must be proved beyond reasonable doubt. The case of Ikoku vs. Oli (1962) All NLR pt. 11195 (sic) was cited in aid. The case of Yusuf vs. Obasanjo (2006) All FWLR (Pt. 294) 389 at 460 was also cited by the Respondents as setting out the necessary ingredients to be established in the proof of allegations of corrupt practices in an election petition.

The trial Tribunal in clear appreciation of the Petitioners/Appellants case at page 992 set out the two grounds upon which their petition was predicated. The said grounds have earlier been re-produced in this judgment.

The trial Tribunal at the same page 992 further averted its mind to the position of the law as enunciated in Yusuf vs. Obasanjo [2006] All NWLR (Pt. 294) 387 at 460 as to the burden the Petitioners have to discharge. These were set out as:

“1. That the Respondents were the persons who actually committed the alleged corrupt practices and non-compliance.

2. Where the act was alleged to have been committed by the agents of the Respondents the agents must have been authorised either expressly or impliedly to so conduct themselves.
3. That the act was committed with the express consent or knowledge of a person who was acting under the general or special authority of the respondent, and
4. The alleged corrupt practice must have substantially affected the result of the election.”

The trial Tribunal bearing in mind the portion of the law as stated in its judgment and having given due consideration to the evidence adduced before it dismissed the Petition of the Appellants. The Appellants would appear to be tenaciously holding to the fact that the Respondents adduced no contradictory evidence in arguing that judgment ought to have been entered in their favour.

The law is definitely not to the effect that whenever a defendant adduces no evidence, judgment must be entered for the plaintiff. In the case of Arabambi vs. Advance Beverages Industries Ltd (supra) relied upon by the Appellants, the Supreme Court was clear on the point that it is the production by a party of credible evidence that can entitle the said party to judgment. Indeed in the said case, the Supreme Court further held among others that a defendant is not bound to call witnesses to establish his defence where a prima facie case has not been proved by the plaintiff. The position of law was applied in the case of CHIEF SERGEANT C. AWUSE V. DR. PETER ODILI & 326 ORS (2005) All FWLR (Pt. 261) 248 at 313-316. Indeed in the case of MUSTAPHA FANNAMI V. ALHAJI GAJI BULAMA (2004) All FWLR (Pt.198) 1210 at 1259.1260 this Court among others held to the effect that the evidence which calls for rebuttal from the opposite party must be admissible, relevant and credible. That it is not any and every evidence at all which must be matched. That if the evidence in support of an allegation is worthless, being incredible, and/or irrelevant; then the opposite party has no obligation to produce anything for the other side of the scale to match it. Where evidence led is virtually worthless, it is therefore futile to presume that the party alleging has discharged the burden of proof or that the court ought to act on the evidence adduced because the opposite party has not presented a rebuttal.

The trial Tribunal after a proper evaluation of the evidence of the witnesses called by the Petitioners/Appellants found the evidence of no single witness called by them credible in the proof of their case. The trial Tribunal after properly evaluating Exhibit E also rightly concluded that there was nothing therein inculpating the 1st Respondent. In Exhibit E, the makers clearly stated that “We therefore decided to cancel the election as it did not even hold at all at about 1.48 p.m.”. In the case of Yusuf vs. Obasanjo (supra) at page 456, Salami, JCA; stated thus: –

“It must be shown that the non-compliance had affected the result of the election. The petitioner must not only show non-compliance but must also demonstrate that the votes attracted or scored through the noncompliance affected the results of the election or had effect of disenfranchising majority of the electorate in the constituency …..”

The trial Tribunal again undoubtedly averted its mind to the above stated position of the law and in my view rightly found to the effect that there was no evidence before it that elections that were cancelled in the two wards to which Exhibit E relates affected the elections in the remaining 28 wards of the constituency. I am of the settled view that the resort by the Appellants to the presumption stated in section 149 (c) of the Evidence Act does not avail them. What is required of them is hard evidence that the situation depicted in Exhibit E was prevalent in the constituency.

From all that has been stated, I therefore do not find the Petitioners/Appellants to have proffered or sufficiently proved their case to entitle them to the judgment in the Petition. The decision of the trial Tribunal is impeccable upon the evidence before it. Accordingly ISSUE 2 is also resolved against the Appellants.

The two ISSUES in this appeal having been resolved against the Appellant, the appeal in the circumstances must fail and is accordingly dismissed. The judgment of the trial Tribunal is affirmed. Costs of N30,000.00 is awarded to the 1st and 2nd – 109th Respondents respectively.

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Other Citations: (2008)LCN/2735(CA)