Sa’idu Abdullahi Rini & Anor V. Bello Moh’d Matawalen Maradun & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
This is an appeal against the judgment of the Governorships and Legislative Houses Election Tribunal, Zamfara State (“the Tribunal” for short) delivered on the 21st day of May, 2007. The 1st Appellant herein was sponsored by the Peoples Democratic Party (2nd Appellant)” a political Party duly registered by the 3rd Respondent (INEC) to contest election held on the 21st April, 2007 as a member House of Representative representing Maradun/Bakura Federal constituency. The first respondent herein also contested the same position at the said election having been nominated by his party the All Nigeria Peoples Party (ANPP) which is the 2nd Respondent herein.
After the conduct of the election by the 3rd Respondent (hereinafter referred to simply as INEC), the 1st respondent, was declared winner of the said election and was accordingly returned by INEC and its Returning Officer of Maradun/Bakura Federal constituency. The two appellants were aggrieved by the return of 1st Respondent as winner of the election by 3rd to 6th respondents and thereby jointly filed a petition before the Tribunal. Principally, the petition filed by the Petitioners/ appellants (herein) complained on in disqualification of the 1st respondent from contesting the election and non-compliance with the provisions of Electoral Act 2006. For purposes of clarity and ease of reference, the relevant averments relating to the grounds as contained in the petition and the subsequent Joint Reply thereto, by the 1st and 2nd Respondents are set out hereunder:-
“Your petition as in this petition shall rely on the following grounds:-
- That the 1st Respondent was at the time of the election, not qualified to contest the election, IN THE ALTERNATIVE:-
- The election was invalid by reason of non-compliance with the provisions of the Electoral Act 2006.”
With regard to the complaint of non-qualification or disqualification the petitioners averred in paragraphs 6, 7, 8 and 9 as follows:-
Paragraph
- the 1st Respondent has been indicted for embezzlement and fraud by an Administrative Panel of Inquiry which said indictment has been accepted by the Federal Government of Nigeria
7- The 1st Respondent having embezzled Public fund while a member (sic) of the House of Representative, he has made refund of part of the money embezzled.
8- The 1st Respondent’s confession was made to EFCC during the latter’s investigation of corrupt Practices, extended to the 1st Respondent. The EFCC case dairy in respect of the investigation carried out on the 1st respondent concerning corrupt Practices is hereby pleaded.
9- By reason of Paragraphs 6, 7 and 8 above, the 1st Respondent was not qualified to contest the election.”
Then on the other grounds of non-compliance with the provisions of Electoral Act the two petitioners jointly averred in their Joint Petition as below:-
Paragraph
- At the end of the election, the 6th respondent announced 99,186 votes as scores for the 2nd Respondent and declared the 2nd respondent (a Political Party) elected. FORM EC8A(11) in Respect of Maradun/Bakura Constituency is hereto pleaded.
- No score was announced for the 1st respondent at any stage of the election, declared elected (sic).
Again, in paragraphs 10 to 12 the petitioners/ appellants complained of irregularities bordering on over voting, multiple voting, stuffing of ballot boxes, and intimidation of voters, undue influence, vote allocation etc and declaration of results in some unspecified voting stations where no election was held. Other complaints relate to failure by INEC to conduct election in some polling stations or wards and that the elections were marred by irregularities in some specified polling units and wards.
The petitioners now appellants, prayed the Tribunal, to declare thus:-
a) That the 1st Respondent was not qualified to contest the election for the House Representatives for Maradun/Bakura Federal Constituency.
b) That the 1st Respondent was not declared elected in the election as stated in (a) above;
c) The 3rd respondent which was declared elected in the said election is a political party and not a candidate, hence the 2nd respondent did not contest the said election and could not be returned elected.
d) The 1st petitioner scored the highest lawful votes having scored 11,224 against 3,223 votes scored by SANUSI ALIYU MARADUN of DPP and ought to have been returned elected.
e) The 1st Petitioner is the elected candidate for the House of Representative, for MARADUNI BAKURA Federal Constituency.
In response to all the averments in the Petitioner’s/Appellant’s Joint Petition, the 1st and 2nd respondents filed their Joint Reply. The pith of their reply is centered on Paragraph 3 therein, where they stated thus:-
Paragraph
“3 – In further answer to paragraph one of the petition, the 1st and 2nd Respondents state that the said ‘White Paper has since become ineffective null, void and of no effect whatsoever, having been quashed by the Federal High Court, Kaduna Division, in its Judgment delivered on 20/3/2007 in consolidated Suits No. FHC/KD/CS/21/07 and FHC/KD/CS/27/07 in which the 1st respondent was one of the applicants hence can not be the basis of disqualification of the 1st Respondent from contesting the said election which took place on 21st April, 2007.”
Then in Paragraph 4 of the Reply, the two respondents went further to aver that the judgment quashed and set aside the White Paper as it purported to indict the 1st Respondent. It is potent to say at this stage, that the issue of quashing or setting aside of the White Paper by the Federal High Court was introduced for the et time in Paragraph 4 of the 1st and 2nd Respondents’ Joint Reply. It is also instructive to note that the Petitioners did not tile any further Reply or raise any issue of the alleged quashing of the judgment of the Federal High Court which was newly or freshly raised by the two respondents in their Reply.
At the pre-trial conference held by the Tribunal, the parties to the Petition were all at one that the sole issue for determination was whether the 1st Respondent was as at the time the elections were held, not qualified to contest same or in the alternative-whether the election was invalid by reason of non-compliance with the provisions of Electoral Act 2006. The matter then went on trial. The Petitioners called witnesses and tendered some documents in evidence. The 1st and 2nd Respondents on the other hand did not call any witness but merely tendered some documents from the Bar, while 3rd to 26th respondent called only one witness, but did not tender any document in evidence. In a reserved judgment delivered on 2nd August 2007, the Tribunal dismissed the Petitioners (appellants’) Joint petition and affirmed the election of the 1st respondent.
Dissatisfied with the judgment handed out by the Tribunal, the two Petitioners appealed to this court vide their Notice of Appeal dated 23rd of August, 2007 containing four grounds of appeal. The appellants also on 20/9/2007 filed their Joint Appellants Brief of Argument, wherein they distilled two issues for determination out of their four grounds of appeal which are reproduced below:-
- Whether or not there was credible evidence in support of the 1st respondent pleading that the 1st respondent as the person whose indictment was quashed (This issue arises from grounds 1 and 2 in the Notice of Appeal).
- Whether or not there was proper evaluation of and ascription of probative value to the evidence adduced by the Petitioners in proof of their petition on ground of noncompliance with the Electoral Act.
This issue arises from grounds 3 and 4 of the Notice of Appeal.
The 1st and 2nd Respondent after being served with the Joint Appellants’ Brief of Argument filed their Joint 1st and 2nd Respondents’ Brief of Argument on 8/9/2007 dated 27/9/2007, wherein two issues were also formulated for the determination of the appeal. The issues read thus:-
a) Whether in the light of the testimonies of all the witnesses and coupled with the content of Electoral Act, the Lower Tribunal was right in holding that the 1st Respondent was qualified to contest for the office of National Assembly representing Maradun/Bakura Federal Constituency.
b) Whether the Petitioners by preponderance of Evidence have discharged the burden placed upon them on the issue of non-compliance with Electoral Act to warrant judgment in their favour.
It needs to be stated here that the 3rd to 16th respondents did not file any brief of argument and also did not appear in court when served with hearing Notice to appear in court to argue this appeal. The two issues identified by the learned counsel for the both the Appellants and for the 1st and 2nd respondents, for the determination of this appeal are very much similar and they border on the same issues identified at the Tribunal during the trial and upon which the Tribunal handed out its judgment now being appealed against. I shall however be guided by the issues couched by the two appellants in treating this appeal as besides their being more elegant, they are also more encompassing.
In arguing the first issue for determination reproduced supra, the learned appellants’ counsel submitted that the Tribunal was wrong in its finding when it held that having not joined issues on the relevance of the judgment to the proceedings or on the point that the name therein is a common identity with that of the 1st respondent as alleged in the Reply, the 1st and 2nd respondent were absolved from leading evidence beyond putting the document before them to speak for itself as they did at the trial. According to the learned appellants’ counsel the contention of the Petitioners/appellants at the tribunal was not whether or not Exhibit N (ie the judgment) quashed the findings of Exhibits M and M1 as wrongly believed by the Tribunal, but their (Petitioners’) contention is that the respondents did not lead any evidence in proof of his (1st respondent’s) assertion that his indictment was quashed. He buttressed his submission by saying that the 1st respondent did not prove his assertion as contained in his Reply.
Learned counsel for the appellants also submitted that it was the 1st and 2nd respondents that joined issues with the petitioners/appellants when they annexed “The White Paper” indicting the 1st respondent and which was admitted by the 1st respondent who went further to assert that the said indictment was quashed consequent upon which he dumped Exhibit N on the Tribunal. The learned counsel further emphasized and relied on the principle of law that he who asserts must prove. He also relied on the provisions of Section 135 of the Evidence Act. The learned appellants’ counsel further submitted that the 1st respondent in the circumstance had a onerous duty of calling evidence to show that he was the same person who contested the election and was also the same person whose indictment was quashed, adding that it was not the duty of the Tribunal/court to speculate. He cited and relied on the cases of DR. AUGUSTINE MOZIE & 6 ORS. VS. CHIKE MBAMAM & 2 ORS (2006)27 NSCQR 425 at 473; SEISMOGRAGH SERVICES (NIG) LTD VS. OGBENI (1976) 4 SC 101′ GODWIN IGBABELE II VS THE STATE (2006) 25 NSCQR 321 at 337. He added that the Tribunal had no power to make any independent examination of Exhibit N in order to make a case that the 1st respondent himself failed to specifically make out in evidence if material part of the evidence was not examined in open court through oral evidence, as to do so will amount to embarking on an investigation See: ENEMUO VS EPHRAIM OKOLI DIM (2007) FWLR (Pt 126) 1004 at 1015/1016; BONIFACE ANYIKA & CO. LAGOS NIGERIA LTD VS KASTINA U. D.UZOR (2005) 26 NSCQR (Pt 2) 1346 at 13550.
The learned counsel also remarked that in election petition, a party who pleads or asserts to the existence of a fact bears the burden of proof. He also relied on the case of AMANACHI VS HON. IREM O.IBOM & 19 ORS (2004) 1 EPR 786 at 804 to 805. He urged this court to allow the appellants’ appeal on this issue.
Responding to the appellants counsel’s submission on this issue, the learned counsel for the two 1st and 2nd respondents submitted that although they jointly admitted in their Joint Reply that the 1st respondent was indicted by the Administrative Panel of Inquiry and that such indictment was accepted by the Federal Government vide “White paper”( Exhibit M2), the 1st respondent filed the suit in the Federal High Court which quashed the indictment. He argued that by filing suit with Federal High Court which led to the quashing of the indictment, they established that the indictment was rendered ineffective. He said the poser that remains relevant is whether there is any nexus linking the 1st respondent with Exhibit N tendered at the Tribunal. By tendering Exhibit N, the 1st and 2nd respondents had joined issues with the petitioners (appellants) with regard to the issue of indictment. See Section 16(1) of First Schedule to the Electoral Act 2006. The 1st and 2nd respondents’ counsel further argued that having raised and admitted the issue of indictment, White Paper and the judgment of the Federal High Court Kaduna which quashed the White Paper or indictment in Paragraphs 3 and 4 of their Joint Reply, they raised new or fresh issues of fact in defence of their case which was not raised in the petition. In that circumstance, Section 16 of the First Schedule to the Electoral Act 2006 empowers the Petitioners to file Petitioners’ Reply in answer to the new issues of fact they raised. This is the only way to meet the issue in contention for proper resolution by the Tribunal which the petitioners /appellants failed to do. He relied to the decisions of OSHODI VS EYIFUNMY (2000) 7SC (Pt 11) 145 and AKERODUW VS AKINYEMI (1989) 3 NWLR (Pt.108) 164. He added that the failure of the petitioners/Appellants to file Reply to the 1st and 2nd respondents averments in Paragraphs 3 and 4 tantamounts to admission by them that the 1st respondent was qualified to contest the election since the indictment was quashed by a competent court. See BRITISH AIRWAYS VS MAKANJUOLA (1993) 8 NWLR (PT 311) 276; AG of ABIA STATE VS AG OF THE FEDERAL REPUBLIC OF NIGERIA (2005) 37 WRN 1 at 67/68; AKINOLA VS OLOWO (1962) 1 SCNLR 352; It was further submitted on behalf of the 1st and 2nd Respondents, that in civil cases including election petitions, the burden of proof rests squarely upon the party who asserts the affirmation before evidence is gone into. He cited and relied in the case of TEWAGBADE VS AKANDE (1968) NMLR 404 at 408. He concluded his submissions on this issue, by saying that there was no cogent evidence before the Tribunal at the close of the case, adduced by the appellants herein which the Tribunal could rely on to hold that the 1st respondent was not qualified to contest the election as complained or that the 1st respondent was in fact not the person whose indictment was quashed. He urged this court to resolve this issue in favour of the 1st and 2nd respondents.
It is common ground among the two parties at the Tribunal that the 1st respondent was indicted for embezzlement and fraud by an Administrative Panel of inquiry and that the Federal Government of Nigeria had accepted the indictment vide Exhibits M and M1. In fact it the 1st Respondent in Paragraphs 3 and 4 of his Reply to the Petition pleaded that and tendered both the Report of the Administrative Panel of inquiry and the White Paper issued by the Federal Government. To my mind, what the 1st respondent is denying in his reply is that such indictment did not render him disqualified for the simple reason that the said White Paper was quashed by the Federal High Court, Kaduna in its judgment delivered on 20/3/07 in the consolidated cases mentioned above.
By introducing the new issue of the quashing of the White Paper and thus introducing the issue of judgment of the Federal High Court in their Joint Reply, they can be understood to have joined issues at that stage. The only way out for the Appellants in order to confront the two respondents with the fresh or new issue raised by the 1st and 2nd Respondents for the Petitioner to file Petitioners’ Reply in response to the new or fresh issues raised as regards the issue of the judgment of the Federal High Court on the quashing order of the said White Paper on the indictment of the 1st respondent.
Paragraph 16(1) of the First Schedule to the Electoral Act 2006 reads thus:-
16(1) – “If a person in his reply to election petition raised new issues of facts in defence of his case which the petitioner has not dealt with, the Petitioner shall be entitled to file in the registry within five (5) days from the receipt of the Respondent’s reply, a petitioner’s Reply in answer to the new issues of fact, so howsoever that:-
(a) The Petitioner shall not at this stage be entitled to bring new facts ground or prayer tending to amend or add to the contents of the petition filed by him, and
(b) The Petitioner’s reply does not Run counter to the provisions of Sub-paragraph 14 of this Schedule” (emphasis supplied).
From the wordings of the above provisions, it can not be disputed that a Petitioner like a plaintiff in regular court can file a reply or defence to meet fresh issues raised in a reply or statement of defence. What a Plaintiff or Petitioner can not do however is to raise or introduce yet another fresh or new extraneous to those raised in the Reply. See. KOGINKUYA VS. MAIGEMUN (2003)6 NWLR (Pt 817) 496 AT 520; AKEREDOLA VS AKANNI (1989) 3 NWLR (Pt 108) 164 AT 172.
By failing or refusing to file a petitioner’s Reply to the averment made by the 1st to 2nd Respondents in Paragraphs 3 and 4 of their Reply, the Petitioner /Appellant could be deemed to have admitted that the 1st Respondent is qualified to contest the election, since his indictment was quashed by a court of competent jurisdiction See BRITISH AIRWAYS VS SHAKARUOLE (SUPRA). In a situation similar to this, instant case, the supreme Court in AG OF ABIA STATE VS AG FRN (Supra) the Supreme Court per EJIWUNMI JSC held at Page 67/68, thus:-
“Having regard to several complaints of the plaintiff, one would have expected the plaintiff to file a reply to this averment so that the defence offered by the 1st defendant would at the very least be put in doubt. This the plaintiff did not do. Then the legal effect of such a failure surely is recognized as an admitting of those facts pleaded by the 1st defendant”It is in the light of the aforesaid therefore, that I do not see any cogent reason why I should depart from the findings or reasonings of the Tribunal in when it held as follows:-
“Having not joined issues on the relevance of the judgment (Exhibit A) to the proceedings or on the point that the name therein is of common identify with that of 7th the 1st and 2nd respondents are absolved from leading evidence beyond putting the document to speak for itself as they have done in the trial…”
The learned counsel for the appellant frowned at the Tribunal’s examination of the documents tendered before it, especially the judgment that quashed the White paper tendered by the 1st and 2nd respondents. With due deference to the learned counsel for the appellants, the tribunal was bound by the mandatory provisions of Section 287 (3) of the 1999 Constitution to enforce the judgments and give effect to them. The Tribunal had no option, as it was under Constitutions duty and obligation to give effect to the judgment of the Federal High Court which was properly placed before it. A judgment of a Court of law is presumed to be valid and the parties concerned are not only bound but are also charged with the responsibility for enforcement of judgment and are also obliged to enforce it unless it is declared a nullity or set aside on appeal by a court of competent jurisdiction. See OSAKWE VS INEC & ORS (2005) 13 NWLR Pt 942) 442.
In actual fact, this court and indeed all other courts or election Tribunals can not ignore any order properly made by a court of competent jurisdiction. See the case of NNAYI VS ANEKE (1996) 2 NWLR (Pt 430) 269 at 273. It was therefore not open to the Tribunal to ignore the judgment of the Federal High Court which is still valid and subsisting, since it had been properly and duly pleaded and tendered in evidence before it since the said Tribunal, is a court of coordinate jurisdiction with the Federal High Court, as to do so will mean that it is sitting on appeal over such judgment which it (Tribunal) had no power to do.On the point raised as to whether the 1st respondent was the person whose indictment was quashed, I think that question had been amply replied to in Paragraphs 3 and 4 of the Joint Reply to the petition filed by 1st and 2nd Respondents, wherein they clearly identified themselves and admitted that the said White Paper had indicted 1st respondent but was however quashed by the Federal High Court following their institution of the two named suits thereat which said White Paper was quashed by the Federal High Court. Those averments or depositions in my view did not have any bearing as to the identity of the person indicted or regarding the quashing of the said White Paper or as to the fact that the 1st respondent was one of the parties that instituted the two named suits.
Thus, the end results of all that I have discussed above is that the first issue for determination has to be resolved against the appellants and I accordingly do just that. The second issue for determinations has to do with evidence and ascription and evaluation of probative value by the Tribunal to the evidence adduced by the petitioners to prove their petition on ground of non-compliance with the Electoral Act 2006. It was submitted by the learned counsel for the appellants that the Tribunal failed to properly evaluate the evidence they adduced and also failed to ascribe probative value to them, adding that it was wrong for the Tribunal to say as it did, that the petitioners’/appellants’ counsel had to show or establish how it could arrive at a conclusion in law of evidence especially in view of the fact that the evidence adduces by them through their witnesses was clear and unambiguous.
The learned appellant’s counsel copiously quoted the testimonies of PWS 1, 2, 3 and referred to the testimonies of PWS 4, 5, 6, 7, 8, and 9 at pages 204 to 209 of the Record and concluded that those pieces of evidence accounted for the electoral irregularities that took place during the election which led to the return of the 1st respondent as winner of the election as declared by 3rd and 6th respondents to the detriment of the petitioners/appellants.
It was further argued on behalf of the appellants that Exhibits A, B, C, D, E, F, G, H and I, which contained the evidence of the nine witnesses called by the petitioners at the trial as contained in the record, established irregularities and the said evidence was never debunked or contradicted by the respondents and thus they remain credible and therefore ought to have been relied upon by the Tribunal. See YANME & ORS VS (2006) ERP 64 AT 659; ALH ABUBAKAR HABU HASHIDU & 1 OR VS ALH MOHAMMED DANJUMA GOJE (2006) 2 EPR 89 AT 852.
The learned appellants’ counsel concluded his argument on this issue, by submitting that the judgment of the Tribunal was perverse for non evaluation and nonappraisal and he finally prayed that we re-evaluate the evidence adduced at the Tribunal and the documentary evidence. He urged us to also resolve that issue in favour of the appellants.
Responding to the above submissions by the appellant’s counsel on this issue, the learned counsel for the 1st and 2nd Respondents insisted that the Tribunal had properly evaluated the evidence placed before it by the petitioners before it arrived at its conclusion that the petition lacked any merit. He argued that when it is now settled law that law that in election petition where, the petitioner alleges non-compliance with Electoral Act, he must prove that there were malpractices and noncompliance with Electoral Act which prevented him from winning the election. Section KUDU VS ALIYU (1992) 2 NWLR (Pt 231) 615 AT 620. The learned counsel to the 1st and 2nd respondents further submitted that the testimonies of the witness called by the petitioners were either hear-say evidence that the evidence adduced was not pleaded, as such could not be relied upon as proof of non-compliance with the Electoral Act 2006. Again, the appellants as petitioners, had a duty to prove that the alleged non-compliance or irregularities (if any) were either perpetrated by the person returned or his own agents. He said the petitioners had failed to lead evidence to link the alleged non-compliance or irregularity to the 1st and 2nd respondents or their agent. See KIN GIBE VS ISA MAINA & ORS 2004 ALL FWLR (pt 191) 1555 at 1588.
He said further, that the petitioners also failed to prove that there was substantial non-compliance which had affected the dismissal of their petition by the Tribunal. By way of conclusion, the learned respondents’ counsel submitted that there was substantial compliance with the Electoral Act shown on the evidence adduced before the Tribunal as could justify the validity of the conduct of the Election. Reliance was placed on the case of MUHAMMADU BUHARI & 2 ORS VS CHIEF OLUSEGUN OBASANJO & 1 OR (2003) 16 NSQCR. He finally urged us to resolve this issue against the appellants.
With regard to the submission made by the learned counsel for the appellants on this issue, I think it is apt to reflect on the statements of some of the witnesses called by the petitioners now appellants and their testimonies at the Tribunal, PW1’s statement on oath was tendered in evidence after trial as Exhibit A. He therein stated inter alia, that he did not know the number of ballot papers in each of the Polling stations. He also stated under cross examination that he did not see the 1st respondent anywhere in ibis ward on the election day. PW2’s statement oath was tendered as Exhibit B. It was centered on alleged irregularities perpetrated in Harandi Polling Station. Having perused the entire petition of the petitioners. I am unable to see anywhere in it, especially in Paragraph 11, where an alleged irregularity in that ward was pleaded in the evidence therefore goes to no issue.
The witness did not say that he saw the 1st respondent on the day of the election. Similarly, PW3 whose testimony relates to S/Kofa in Rimi Ward was also not pleaded and thus goes to no issue. This also applies to PW4 whose allegation of irregularities relates to Gidan Orji polling unit and that of PW6 with regard to Tugar Kalgo Pw5’s testimony though pleaded, he did not however say he saw the 1st respondent or his authorized agents at the venue of the alleged malpractice. Also his testimony referring regarding irregularities at Damri ward was also not pleaded, with regard to PW7, even though his allegation of irregularities at Kanwuri Ward was pleaded, the petitioners of failed to give particulars of such irregularities in their petition especially with regard to the manner of voting number of unlawful votes emanating thereform.
Again with regard to Sarkin Diya ward, he complaint of irregularities was nowhere pleaded.
The testimonies of PW8 on irregularities at Shiyar Koffa in Damri ward though partly pleaded, the particulars of the alleged irregularities were not pleaded at all in the petition. PW9’s testimony alleging irregularities at Shiyar Kofa in-Damri village also goes to no issue, in that the alleged irregularities were not pleaded at all in the petition.
I have taken pains to examine the testimonies of these witnesses and the evidence led by the petitioners to prove their petition, before the Tribunal. The testimonies were characterized and punctured by either want of plea in the petition or non-particularization of the alleged irregularities or malpractices in the affected areas complained of. A trial court or Tribunal always has a duty to rest its decision substantially on facts which were duly and properly pleaded or issues that were raised by the parties or within their contemplation. If finding of a court/Tribunal which formed the basis of the judgment on appeal, are not borne out by the pleadings of the parties or the issues were not thrown up by the judgment or did not arise from thee pleadings or were indeed not canvassed, such judgment would not he allowed to stand on appeal. It is therefore in the light of the aforesaid that I am unable to see how I can fault the finding of the Tribunal when it held thus:-
“It is also the contention of Mr Mika’ilu that substance of the evidence that the Petitioners have had through their witnesses sufficiently establishes Acts of non-compliance with the provisions of the Electoral act in the polling units mentioned in Paragraph 10 and 11 (sic) of the petition. According to him, the non-compliance also substantially affected election. The learned counsel has not however shown how we could arrive at that conclusion from the evidence.”
See Page 250 line 1 to 6 of the record.
It is trite law, that where a petitioner is alleging irregularities, he must lead credible evidence that the alleged irregularities, malpractices or non-compliance with the Electoral Act, had impacted on the result of the election. Again, there was no convincing evidence led by the petitioners at the tribunal linking the 1st and 2nd Respondents or their authorized agents to the alleged irregularity, malpractices or non-compliance or that, they were done with their knowledge and or consent See
OREGUN v. IG BUEDUOF (1992) 9 NWRL (Pt 276) 747; FALAI VS OBASANJO (1999) 4 NWLR (Pt 599) 476 at 496.
It must also be emphasized that a petitioner always has the burden to prove through credible evidence in order to succeed in an election petition alleging that there was no substantial compliance with Electoral Act or that the alleged irregularities, have substantially affected the election of the respondent and that the alleged irregularities were spear-headed by or linked with the respondent (s) of his authorized agents. In KINGIBE VS ISA MAINA, & ORS (supra) this court had this to say:-
“It is clear from the above that whether the complaint be on irregularities, unlawful votes or non-compliance, it must be tied to the effect of such irregularities or non-compliance on the result of the election.
The law is that once the Petitioner is unable to the irregularities, malpractice or unlawful votes to its effect on the result of the election, the Petition is bound to fail.”In the instant case, the Petitioners failed to establish at the Tribunal, that the alleged irregularities, malpractice or non-compliance with the Electoral Act had impacted on the election. That is the only way to rebutt the presumption of validity of the conduct of an election. See MUHAMMADU BUHARI & 2 ORS VS CHIEF OLUSEGUN OBASANJO & 1 OR (2003) 16 NSCLN. The learned counsel for the appellant also complained that the Tribunal failed to evaluate the evidence adduced in the case especially Exhibit A, B, C, D, E, F, G, H and J which were the statements on oaths of the ten witnesses. I do not accept his contention on that as the record and judgment clearly show that the Tribunal had addressed the issues of indictment, White Paper as well as the alleged irregularities and malpractices before it made valid pronouncements on them, even though the method of approach or pattern of Judgment writing may differ from one judge to another. To my mind, the Tribunal had properly dealt with all the silent issues raised before it by the parties. This issue therefore also ought to be solved against the appellants too and accordingly do same.
In sum, since I have held earlier that the Tribunal is correct in arriving at its conclusion that the ground of disqualification raised in the petition failed and consequently dismissed the petition which was indeed the fulcrum on which the appellants’ petition was based, the second issue to my mind, is simply a side issue which the petitioners had even regarded as an alternative point. The petitioners /appellants failed to establish, or substantiate before the Tribunal the alleged irregularities, non-compliances or malpractices they complained about even in the polling units they pleaded, not to talk of those they completely failed to plead but were merely raised by their witnesses. I therefore hold that on the evidence adduced before the Tribunal, the election was conducted substantially in conformity with the principles of the Electoral Act 2006.
Accordingly, this appeal is adjudged unmeritorious by me. It fails and I accordingly dismiss it with no order as to costs. Each party should therefore bear his or its own costs.
Other Citations: (2008)LCN/2705(CA)
