PEOPLES DEMOCRATIC PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13419(CA)
PEOPLES DEMOCRATIC PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of December, 2011
CA/I/EPT/OG/GOV./21/2011
Justice
RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBOR IKYEGH Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
MOHAMMED A . DANJUMA Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (I.N.E.C.)
2. SENATOR IBIKUNLE OYELAJA AMOSUN
3. ACTION CONGRESS OF NIGERIARespondent(s)
RATIO
WHETHER OR NOT THE BURDEN IS ON A RESPONDENT WHO CHALLENGES THE COMPETENCE OF A GROUND OF APPEAL
The burden is on a Respondent who challenges the competence of a ground of appeal on the ground that it is vague, nebulous or that it does not disclose sufficient particulars or that the particulars are not related to the ground, to show or demonstrate to the court how that is so. A bare assertion by counsel without more will not suffice. See AFRICAN PETROLEUM PLC V. ADENIYI (2011) 1st NWLR (PT.1271) p.560 AND DAKOLO V REWANE-DAKOLO (2011) 16 NWLR (Pt.1272) p.22. PER TSAMMANI, J.C.A.
WHETHER OR NOT ISSUES FOR DETERMINATION IN APPEAL MUST BE FORMULATED FROM A VALID GROUND OF APPEAL
It is the law that an issue for determination in appeal must be formulated or distilled from a valid ground of appeal. The ground of Appeal must in turn be predicated upon the ratio decidendi of the decision of the lower Court or tribunal appealed against. In other words, for a ground of appeal to be valid, it must arise from the decision appealed against. Accordingly, when a ground of appeal does not come from the decision in respect of which a notice of appeal was filed, it would be invalid and incompetent, and therefore liable to be struck out. see AGBALLAH V. CHIME (2009) 1 NWLR (Pt.1122) p.273 at 419 and NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt.1209) p.518 at 572. PER TSAMMANI, J.C.A.
WHETHER OR NOT DISENFRANCHISEMENT IS PROVED BY POLLING UNIT RESULT SHEETS IN ELECTION MATTERS
That in any case, disenfranchisement is not proved by polling unit result sheet(s) as put foreward by the Appellant, but by the production of the voter’s register, the voters cards and the oral testimony of those allegedly disenfranchisement as to how they were disenfranchised. The cases of CHIME V EZEA (2009) 2 NWLR (Pt.1125) p.263 at 357, YARO v. WADA (2009) All FWLR (Pt.472) p.1084 and AUDU v. INEC & ORS (2010) 13 NWLR (Pt.1212) p.456 were cited, in support. That the polling results sheets alone, cannot speak of the fact that any voter was denied the right to pick a candidate of his choice, especially when the fact pleaded by the Appellants is disenfranchisement and not non-voting. That the court cannot therefore speculate as to the reason why some voters or persons did not vote. The cases of C.A.P. PLC v. VITAL INV. LTD (2006) 6 NWLR (Pt. 976) p.220 and ZABUSKY V ISRAEL AIRCRAFT IND. (2008) 2 NWLR (Pt. 1070) p.109 were further cited in support.
Arguing further, the 1st Respondent quoted profusely from the cases of NWAGA V REGISTERED TRUSTEES, RECREATION CLUB (2004) FWLR (pt.190) p.1360 at pp. 1380 – 1381, DOUPOLAGHA v. ALAMIEYESSIGHA (1999) 6 NWLR (Pt.607) p.502 and p. 5I2; JALINGO V NYAME (1992) 3 NWLR (Pt. 231) p.538, ENEMUO V DIM (2002) FWLR (Pt. 126) p.1004 at pp.1015 – 1016; INEC v. ABUBAKAR & ANOR (2009) 8 NWLR (Pt.1143) p. 259 at 294 and a host of other cases, and submitted that, the document relied on by the appellant have no probative value, since they were simply dumped on the court without any explanation from the witnesses relating to the allegations made by the Appellants. PER TSAMMANI, J.C.A.
BURDEN OF PROOF IN ELECTION PETITIONS
It is well settled principles of our law that, the general burden of proof; that is the burden of establishing the case, rests on the person who asserts. Election petitions are specie of civil proceedings. In that respect, like in all civil proceedings, the general or legal burden of proof lies on the person who would fail if no evidence at all were given in the matter. In other words, the person who asserts the affirmative of an issue bears or has the legal burden of proof of that which he asserts, because judgment would be given against him if no evidence is adduced in the case he has initiated. See AMODU V AMODE (1990) 5 NWLR (Pt.150) p.356, FAMUROTI v. AGBEKE (1991) 5 NWLR (Pt. 189) p.1; IGWE v. A.C.B. PLC (1999) 6 NWLR (pt.605) p.1, HARUNA v. MODIBBO (2004) 16 NWLR (Pt. 900) p.487; AJADI v. AJIBOLA (2004) 16 NWLR (Pt.910) p.241; and CHIME v EZEA (2009) 2 NWLR (Pt.1125) p.263.
The proof or rebuttal of issues which arise in the course of the proceedings, may however shift from the Plaintiff or Petitioner and vice-versa as the case progresses.
Thus the burden or onus of adducing evidence in proof or rebuttal of issues are generally fixed by the pleadings. See UZOKWE V DENSY INDUSTRIES (NIG) LTD (2002) 2 NWLR (PT.752) p.528; BUHARI V I.N.E.C. (2008) 19 NWLR (Pt.1120) p.246 and ADIGHIJE V I.N.E.C. (2010) 12 NWLR (PT. 1209) p.419. The Standard of proof required to discharge that general or legal burden is upon a preponderance of evidence or balance of probabilities. See FAYEMI V ONI (2010) 17 NWLR (Pt.1222) p.326 at 385; BUHARI V. I.N.E.C. (2008) 19 NWLR (pt.1120) p.246 and JANG V DARIYE (2003) 15 NWLR (Pt.843) p.436. PER TSAMMANI, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF IN ELECTION PETITIONS SHIFTS FROM THE PETITIONER TO THE RESPONDENT
On the other hand, for the burden to shift from the petitioner to the respondent, to prove the contrary of what the Petitioner has placed before the court, the petitioner must have placed cogent and credible evidence before the court in proof of his case. see KOLAWOLE v. FOLUSHO (2009) 8 NWLR (pt.1143) p.338, AGU v. NNADI (1999) 2 NWLR (pt.589) p.131, OYEFOSO v. COKER (1999) 1 NWLR (Pt. 588) p.654; SANUSI v. AMEYOGUN (1992) 4 NWLR (pt.237) p.527, ODON v. BARIGHA-AMANGE (No.2) (2010) 12 NWLR (Pt.1207) p.13; AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) p.416, ROTIMI v. FATUNJI (1999) 6 NWLR (Pt.506) p.305 and BELLO v. ARUWA (1999) 8 NWLR (pt.615) p.454. PER TSAMMANI, J.C.A.
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): On the 21/12/2011, this court dismissed the appeal and affirmed the judgment of the lower tribunal. We also indicated that we will give reasons for the judgment today. We now proceed to give those reasons:
On the 26th day of April, 2011, election was conducted by the 1st Respondent into the office of Governor of Ogun State of Nigeria. The Appellant, to wit: Peoples Democratic Party sponsored one General Adetunji Idowu Olurin, at the said election. The 2nd Respondent and 18 others also contested the election in the platforms of their respective parties. The 2nd Respondent who contested the election on the platform of the Action Congress of Nigeria (ACN) was declared and returned by the 1st Respondent as the winner of the election, having scored the majority of the lawful votes cast. The Appellant whose candidate emerged the runner-up at the election was not satisfied with the declaration and return of the 2nd Respondent as the duly elected Governor of Ogun State, and therefore filed a petition before the Governorship Election Petition Tribunal, sitting at Abeokuta, Ogun State.
A summary of the Appellant’s Petition at the tribunal is based on three grants. These are:-
(a) The 2nd Respondent did not win the election by a majority of the lawful votes cast at the said election.
(b) The 2nd Respondent at the time of the election was not qualified to contest the election.
(c) The 1st Respondent in non-compliance with the provisions of the Electoral Act, 2010 (as amended) allowed the participation of the 4th Respondent in the said election in order to spite and/or with the effect of splitting the votes which should originally have otherwise been invalid, null and void, and thus ought to be invalidated or nullified
The Appellant therefore sought for the following reliefs:
1. A declaration that the petitioner polled the highest number of lawful votes cast at the said election to the governorship of Ogun State held on the 26th day of April, 2011 and ought to be returned as duly elected.
2. An order directing the 1st Respondent to deliver within 48 hours of the decision of the tribunal, a certificate to the petitioner’s candidate in evidence of his return as the validly elected Governor of Ogun State of the Federal Republic of Nigeria.
IN THE ALTERNATIVE
3. An order nullifying/invalidating/declaring as invalid, null and void the entire election to the governorship of Ogun State held on the 25th day of April, 2011.
4. An order directing the 1st Respondent to conduct within 21 days of the decision of this tribunal, a new election to the governorship of Ogun State.
5. An order barring the 4th and 5th Respondents from participating or fielding candidates at the new election.
By the order of the Tribunal dated the 18/7/2011, the 1st Respondent was granted leave to file its reply to the petition out of time. The 2nd and 3rd Respondent filed separate replies to the petition. It should be noted that in the course of proceedings’ before the Tribunal, the names of Isiaka A. Nasiru and Peoples Party of Nigeria, who were 4th and 5th Respondents in the petition, were struck out on the 27/06/2011, upon a preliminary objection raised by them. Consequently, the petition was heard and determined against the 1st, 2nd and 3rd Respondent only.
At the trial, the Appellant called two witnesses and tendered several documents which were admitted in evidence. The 1st Respondent did not call any witness. The 2nd Respondent did not call any witness but tendered certain documents from the Bar. The 3rd Respondent called one witness and also tendered a few documents. At the close of evidence, parties filed and served written addresses, which they adopted on the 12/09/2011. Thus in a considered judgment delivered on the 31/10/2011, the Tribunal determined that the petition had no merit and consequently dismissed same. It is against that decision that the petitioner/Appellant feels aggrieved and has now appealed to this court.
The Notice of Appeal is dated the 10/11/2011 and filed the same day and it consist of six(5) grounds. Those grounds are hereunder reproduced, but without their particulars:
A. MISDIRECTION ON THE FACTS
The Honourable Tribunal misdirected itself on the facts when it held that the Petitioner/Appellant’s allegation of disenfranchisement of votes in the Governorship Election in Ogun State held on the 25th of April, 2011 was not established.
B. MISDIRECTION ON THE FACTS
The Honourable Tribunal misdirected itself on the facts when it held that the Petitioner/Appellant failed to prove the allegations of malpractice beyond reasonable doubt.
C. ERROR IN LAW
The Honourable Tribunal erred in law when it held that the allegation of non-compliance with the provisions of the Electoral Act, 2010 made against the 1st Respondent was not established.
D. ERROR IN LAW
The Honourable Tribunal erred in law when it held that the issue of non-compliance raised by the Petitioner was a pre-election matter over which the Election Petition Tribunal has no jurisdiction.
E. ERROR IN LAW
The Honourable Tribunal erred in law when it held that the provisions of the Manual for Electoral officials, 2010 are not mandatory for the officials of the 1st Respondent.
F. ERROR IN LAW
The Honourable Tribunal erred in law when it speculated in favour of the 1st Respondent on the reasons why the discrepancies in the forms EC8A (relied on by the Petitioner in proof of allegation of disenfranchisement, over-voting and non-compliance) existed.
In compliance with the Rules and practice of this court, the parties filed and exchanged briefs of argument. The Appellants brief of argument settled by Ehi Uwaifo Esq is dated the 1st of November, 2011 and deemed filed the 20/12/2011. The 1st respondent’s brief of argument was settled by Dr. Uche Obi Esq, and it is dated the 16/12/2011 and deemed filed the 20/12/2011. The 2nd Respondent’s brief of argument settled by Dr. Olumide Ayeni is dated the O6/12/2011 and was deemed filed on the 20/12/2011, while that of the 3rd Respondent is settled by George Oyeniyi Esq. It is dated the 06/12/2011 and also deemed filed on the 20/12/2011.
It is pertinent to point out at this juncture that the 2nd and 3rd Respondents filed separate Notices of preliminary Objection challenging the consequence of the Petition. The 2nd Respondent’s Notice of preliminary objection is dated the 06/12/2011 and filed the 07/12/2011, while that of the 3rd Respondent was also dated the 06/12/2011 and filed the 07/12/2011. We shall consider those objections before proceeding to determine the substantive appeal, if necessary. However, we shall consider the objections separately, considering that the grounds upon which they are premised differ. Accordingly, I begin with the preliminary objection raised by the 2nd Respondent.
Now, the grounds upon which the 2nd Respondent’s preliminary objection is premised are that:
1. Grounds of Appeal numbers 3A, 3B, 3C, 3D, 3E and 3F are incompetent by reason of each of them being vague, nebulous and not disclosing sufficient particulars and/or the particulars relating to the various Grounds of Appeal.
2. The 3 issues for determination flowing there from as distilled by the Appellant are subsequently Incompetent.
The preliminary objection was argued at pages 3-4 of the 2nd Respondent’s Brief of Argument. By the objection, the 2nd Respondent contended that each of the grounds of Appeal numbered 3A, B, C, D, E and F are incompetent, narrative, argumentative, incongruous, vague and nebulous, and should be struck out alongside their particulars. Learned Counsel quoted and relied on the cases of UWAZURIKE v. A.G., FEDERATION (2007) 29 NSCQR p.489 at 506 paras. C – E; KACHIA V. YAZID (2001) 17 NWLR (Pt.742) p.431 t pp.448 – 461; EZOMO V. N.N.B. PLC & ANOR (2006) 14 NWLR (Pt.1000) p.624 at 641, ADAMS v. UMAR & 4 ORS (2009) 5 NWLR (Pt. 133) p.41 at 110 paras. G – H, and a plethora of other cases to urge us to strike out in limine each of the 6 Grounds of Appeal for being incompetent.
In response, learned counsel for the Appellant submitted that the 2nd Respondent has not in anyway shown how the said Grounds of Appeal are vague or nebulous or did not disclose sufficient particulars. It is accordingly contended for the 2nd Respondent that the Grounds of Appeal and their particulars are competent.
It is now settled that a Ground of Appeal should be precise, clear, direct and unequivocal. It must also give the exact particulars of mistake, error or misdirection alleged by the appellant. In other words, there is an affinity between a ground of appeal and its particulars. While the ground of Appeal states precisely and clearly the complaint of the Appellant, the particulars go further to explain or set out briefly those aspects of the substantive law or procedure that is affected by the Appellant’s complaint as contained in the grounds of appeal. To that extent a ground of appeal and its particulars must be related. The ground must therefore not be vague, nebulous, argumentative and narrative.
The burden is on a Respondent who challenges the competence of a ground of appeal on the ground that it is vague, nebulous or that it does not disclose sufficient particulars or that the particulars are not related to the ground, to show or demonstrate to the court how that is so. A bare assertion by counsel without more will not suffice. See AFRICAN PETROLEUM PLC V. ADENIYI (2011) 1st NWLR (PT.1271) p.560 AND DAKOLO V REWANE-DAKOLO (2011) 16 NWLR (Pt.1272) p.22. In the instant case, the 2nd Respondent did not in anyway show or demonstrate how the grounds of Appeal as contained in the Notice of Appeal are vague, nebulous or do not disclose sufficient particulars. They did not also demonstrate how the particulars supplied by the Appellant insufficient. In any case, a cursory perusal of the Grounds of Appeal as contained in the Notice of Appeal, clearly show that they are sufficiently clear as to be understood by this court. The particulars supplied therein are adequate to explain the Appellant’s complaints in the Grounds of Appeal. This objection therefore has no substance and is accordingly dismissed.
The 3rd Respondent’s preliminary objection prayed this court to strike out or discountenance Grounds E of the grounds of Appeal and issue no.5 formulated by the Appellant for being incompetent, on the grounds that:
From the totality of the judgment of the lower tribunal dated 31st October, 2011 Ground E of the Grounds of Appeal filed on 10th November, 2011 and issue no. 5 in paragraph 4.5 of the Appellant’s Brief of Argument filed on the 1st December, 2011, are incompetent, as same did not arise from the judgment of the lower Tribunal.
The objection is argued at pages 6-7 of the 3rd Respondent’s brief of argument. Therein, learned counsel for the 3rd Respondent submitted that both Ground 5 and the issue derived therefrom do not arise from the judgment of the lower Tribunal. Relying on the cases of IKWEKI & ORS V. EBELE & ANOR (2005) ALL FWLR (PT.257) p.1401 AT 1432; SARAKI V. KOTOYE (1992) 11 – 12 SCNJ at p.43 and C.C.B. PLC V EKPERI (2007) All FWLR (Pt. 355) p.412 at pp.424-425. Learned Counsel urge us to strike out Ground 5 of the Appellant’s Notice of Appeal and issue no. 5 formulated therefrom.
It is the law that an issue for determination in appeal must be formulated or distilled from a valid ground of appeal. The ground of Appeal must in turn be predicated upon the ratio decidendi of the decision of the lower Court or tribunal appealed against. In other words, for a ground of appeal to be valid, it must arise from the decision appealed against. Accordingly, when a ground of appeal does not come from the decision in respect of which a notice of appeal was filed, it would be invalid and incompetent, and therefore liable to be struck out. see AGBALLAH V. CHIME (2009) 1 NWLR (Pt.1122) p.273 at 419 and NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt.1209) p.518 at 572.In the instant case, a careful reading of Ground 5 of the Notice of Appeal the particulars in support and the issue formulated there from, show clearly that the Appellant challenges that finding of the Tribunal that the Manual for Electoral Officials, 2011 is not binding on the officials of the 1st Respondent as to vitiate the result of an election. As pointed out by the Appellant at paragraph 1.3 of its reply brief, that finding of the Tribunal is contained at paragraph 2 in page 862 of the record of appeal. It is obvious therefore that Ground 5 of the Notice of Appeal and issue no. 5 derived there from arise from the decision of the tribunal appealed against. The 3rd Respondent’s objection also has no substance and is therefore, equally dismissed.
As pointed out earlier in the course of this judgment, parties to this appeal filed briefs of argument in compliance with the Rules of this Court. Thus, in arguing the appeal, the Appellant formulated five (5) issues for determination as follows:
1. Whether the allegations of malpractice involving disenfranchisement, ballot box stuffing and non-recording of number of votes on the queue at the commencement of voting has not been established by the Petitioner/Appellant.
2. Whether the decision of the Tribunal to ignore the forms ECSA (polling booth result sheets), which showed that persons on the queue did not vote, on the ground that the forms did not explain why allegedly disenfranchised voters were disallowed from voting was right in view of the failure of the 1st Respondent to lead evidence to contradict the grounds of the Petitioner that these voters were disenfranchised.
3. Whether the allegation of non-compliance with the provisions of the Electoral Act, 2010 (as amended) by the 1st Respondent involving the illegal listing of a prominent member of the petitioner as the candidate of an otherwise unknown party (the PPN) with the substantial effect on election resulting from splitting the votes that would have accrued to the Petitioner’s authentic candidate is a pre-election matter.
4. Whether the allegation of non-compliance with the provisions of the Electoral Act, 2010 (as amended) by the 1st Respondent involving the illegal listing of a prominent member of the Petitioner as the candidate of an otherwise unknown party (the PPN) with the substantial effect on the election resulting from splitting, of votes that would have accrued to the Petitioner’s authentic candidate was not established.
5. Whether the provisions of the Manual for Electoral Officials 2011 are not mandatory for officials of the 1st Respondent.
The 1st Respondent on the other hand formulated only one issue for determination as follows:
1. Whether considering the Totality of the evidence of the parties, the Appellant has proved its case as required by the law to entitle him to the reliefs claimed.
The 2nd Respondent also distilled only one issue for determination. It is:
1. Whether the findings of the Governorship/Legislative Houses Election Tribunal to the effect that Petition No.EPT/OG/GOV/01/2011 was not proven to substantially vitiate the election and return of the 2nd Respondent as the duly elected person to the office of Ogun State following the election of 26th April, 2011 and thereby dismissing same with costs was correct.
It is the view of the 3rd Respondent that the sole issue that a rise for determination in this appeal is:
1. Whether in the circumstances of this case the Appellant has proved its case as required by law to be entitled to the reliefs claimed.
A very careful reflection on the grounds of Appeal will show that the issues formulated by the Appellant are sufficient to dispose of this appeal. In that respect, we shall adopt the issues as raised by the Appellant in the determination of this appeal. However, we shall consider issues 1, 2 and 5 together as the issues involved therein are intricately inter-twined.
On issue one, learned counsel for the Appellant contended that the allegations of disenfranchisement, ballot box stuffing and non-recording of number of votes on the queue when voting commenced are essentially allegations against the presiding officers who are parties to the Petition by virtue of paragraph 51(1) of the First schedule of the Electoral Act, 2010 (as amended), since INEC i.e the 1st Respondent has been joined in the Petition. That since the 1st respondent represents those officials, it ought to have led evidence to contradict or controvert those allegations and failure of the 1st Respondent to lead evidence to debunk the evidence put forward by the Appellant at the Tribunal is fatal to the Respondent’s case. The case of C.B.N. V DINNEH (2010) 17 NWLR (Pt.1221) p.125 at 159 was cited in support. It was further submitted for the Appellant that, in view of the failure of the 1st Respondent to specifically lead evidence to rebut the evidence of the Petitioner/Appellant it amounted to an admission of those allegations by the 1st Respondent. The case of N.A.S. LTD v U.B.A. PLC (2005) 14 NWLR (pt.945) p.421 AT P.435 was relied on. That since those allegations have been admitted by the 1st Respondent, no further proof is required and that the Tribunal was therefore wrong when it proceeded from the premise that the Appellant was required to prove or establish those facts admitted.
On the 2nd issue learned counsel for the Appellant contended that in the light of the pleadings and evidence adduced at the trial, the factual question that arises is whether people on the queue when voting started were not allowed to vote, as pleaded by the Petitioner/Appellant and clearly and unequivocally answered by the documents tendered. That the forms ECSA tendered show that there was disenfranchisement, as the endorsement by the presiding officers on those forms show that not all the acceptable voters on the queue when voting commenced actually voted. That this can be determined by a comparison of the figures of voters on the queue when voting commenced with the figures for total ballot papers used at the election. It was therefore submitted for the Appellant that, by their nature, the forms EC&A contain all the information as to what transpired at each polling unit during an election, and that such information would assist any person who was not present at the polling unit during the election. Based on the above postulation learned counsel for the Appellant submitted that since all the information relating to a polling unit is contained in the form EC8A, when tendered, it is sufficient for the court when called to determine what transpired in that polling unit during an election. That when it comes to the question, why people were not allowed to vote, the onus of providing an answer falls upon the 1st Respondent who conducted the election. It was then contended that the 1st Respondent not only failed to explain why certain voters did not vote, but also admitted that people were disenfranchised and that the Trial Tribunal therefore ought to have relied on those forms to see the details and figure of persons who were disenfranchised.
The Appellant went on to contend that, in the face of the patent irregularities in the documents produced by the 1st Respondent, the tribunal was in error to have embarked on speculation as to why accredited voters did not vote. That based on the cases of ORHUE v N.E.P.A. (1998) 7 NWLR (Pt.557) p.187 at p.200, FAWEHINMI V N.B.A. (No. 9) (1989) 2 NWLR (Pt.105) p.494 and IKEWUEZI V EKEANYA (1989) 1 NWLR (pt.96) p.239 at p.249, Courts of law should not embark on speculation, but should determine any issue based in evidence adduced before it. That the 1st Respondent who produced the form ECSA’s was in the best position to offer same explanation about the purport of the documents, but failed to call any evidence at the trial. Learned counsel then submitted that, the Appellant had therefore discharged the onus, of proving that some accredited voters who were on the queue were disenfranchised. That it is not the duty of the Petitioner/Appellant who did not conduct the election to explain why accredited voters who were on the queue were disallowed from voting.
On the issue no. 5, it is the contention of the Appellant that the Tribunal was in error when it held that the provisions of the Manual for Electoral Officials, 2011 on the issue of recording the number of voters on the queue at the commencement of voting is not mandatory. That in reaching its decision, the learned tribunal failed to take into account the essence of the provision requiring the Poll Assistant or Security Agent to stand behind the last person on the queue. That the essence of that requirement is to ensure that the electoral process is not manipulated in favour of any of the candidates at the election. He cited the case of TERAB v. LAWAL (1992) 3 NWLR (pt.231) p.569 to reiterate the importance of recording of the number of voters on the queue when the voting commenced.
Responding on the 1st issue, learned counsel for the 1st Respondent contended it is not true as stated by the Appellant that the 1st Respondent had admitted the allegations of malpractices and non-compliance complained of by the Appellant. That for admission in law to relief the Appellant of the onus on it to proof the facts alleged, it must be shown that the facts so pleaded were admitted by all the Respondents affected by the fact alleged admitted. The cases of ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (Pt.1120) p.1 at p.171 paras. F-G and BUHARI V INEC & ORS (2008) 19 NWLR (pt. IL20I p.246 and p.422 were cited in support. It was therefore submitted by the 1st Respondent that since the averments in question did not affect only the 1st Respondent, but affected the 2nd and 3rd respondents as well, no purported admission on the part of the 1st respondent can affect the other Respondent who have specifically denied those allegations in their replies.
It is further submitted by the 1st Respondent that, it is the law that, evidence elicited or extracted from a witness under cross-examination is as good as evidence led in-chief by a witness, provided that the evidence elicited is in line with the pleadings. That in the course of cross-examining the Appellant’s witnesses at the Tribunal, the evidence led by those witnesses predicated in the allegations made by the appellants were contradicted or controverted, and therefore remained unproved. It was therefore submitted that the 1st respondent’s failure to each any witness in the circumstances, did not amount to admission. That the reliefs sought by the Appellant being declaratory, cannot be granted in default of any defence or in admission by the Respondent. See DIM v. ENEMUO (2009) 10 NWLR (Pt.1149) p.353 at pp. 380 -381. Learned counsel further cited the cases of OFFORLETTE v. THE STATE (2009) 7 SCNJ p.162 at p.184, SHELL PETROLEUM DEV. COM (NIG) LTD v. ABBA (2005) ALL FWLR (pt.257) p.1533 at 1548, MARTCHEM INDUSTRIES (NIG) LTD v. M.F. KENT (W.A) LTD (2005) All FWLR (pt.271) p.1, to submit that, since the Appellant’s case was effectively demolished during cross-examination, there was nothing for the Respondents to disprove.
Learned Counsel for the 1st Respondent went on to submit that, a cursory look at the pleadings in the petition should show that the Petition/Appellant did not plead any issue of over-voting and non-recording of the number of voters on the queue at the commencement of voting in any of the paragraph of the Petition. That those allegations only surfaced in the Appellant’s counsel final written address, contrary to the new established principle of law that, counsel’s address cannot amount to or take the place of evidence no matter how brilliant. That in any case, the results of the election declared by the 1st Respondent are presumed by law to be genuine and correct until the contrary is proved by the Appellants: BUHARI V INEC & ORS (Supra) at p.354 paras. B -C.
Learned Counsel for the 1st Respondent went on to submit that, the learned trial tribunal rightly came to the conclusion that the allegation of disenfranchisement and other criminal allegations in the Petition were not proved, as the oral evidence relied upon in proof of same was hearsay and the documents relied on did not show the alleged malpractices. The cases of BUHARI v. OBASSANJO (2005) All FWLR (Pt.273) p.1 was quoted extensively from to support the submission of counsel. That in any case, disenfranchisement is not proved by polling unit result sheet(s) as put foreward by the Appellant, but by the production of the voter’s register, the voters cards and the oral testimony of those allegedly disenfranchisement as to how they were disenfranchised. The cases of CHIME V EZEA (2009) 2 NWLR (Pt.1125) p.263 at 357, YARO v. WADA (2009) All FWLR (Pt.472) p.1084 and AUDU v. INEC & ORS (2010) 13 NWLR (Pt.1212) p.456 were cited, in support. That the polling results sheets alone, cannot speak of the fact that any voter was denied the right to pick a candidate of his choice, especially when the fact pleaded by the Appellants is disenfranchisement and not non-voting. That the court cannot therefore speculate as to the reason why some voters or persons did not vote. The cases of C.A.P. PLC v. VITAL INV. LTD (2006) 6 NWLR (Pt. 976) p.220 and ZABUSKY V ISRAEL AIRCRAFT IND. (2008) 2 NWLR (Pt. 1070) p.109 were further cited in support.
Arguing further, the 1st Respondent quoted profusely from the cases of NWAGA V REGISTERED TRUSTEES, RECREATION CLUB (2004) FWLR (pt.190) p.1360 at pp. 1380 – 1381, DOUPOLAGHA v. ALAMIEYESSIGHA (1999) 6 NWLR (Pt.607) p.502 and p. 5I2; JALINGO V NYAME (1992) 3 NWLR (Pt. 231) p.538, ENEMUO V DIM (2002) FWLR (Pt. 126) p.1004 at pp.1015 – 1016; INEC v. ABUBAKAR & ANOR (2009) 8 NWLR (Pt.1143) p. 259 at 294 and a host of other cases, and submitted that, the document relied on by the appellant have no probative value, since they were simply dumped on the court without any explanation from the witnesses relating to the allegations made by the Appellants.
On the issue of over-voting, it is the contention of the 1st respondent that, the Manual for Elections relied upon does not help the Appellant’s case. That the case of TERAB V TAWAN (Supra) relied upon by the Appellant is not applicable in the circumstances of this case, as that case was held in the case of RIMDAN V LAR (1999) 9 NWLR (Pt.620) p.538, to be inapplicable to present electoral system. That the requirement that the Poll Assistant or Security agent shall stand behind the last person on the queue is to prevent unaccredited persons from joining the queue for voting.
Learned counsel then submitted that, it cannot be correct position of the law, as contended by learned counsel for the Appellant, that over-voting can be proved by showing that the number of the used ballot papers, is higher than the number of persons on the queue when the voting commenced.
That over-voting can only be established by showing that the number of used ballot papers, is higher than the number of rather the registered votes or accredited voters, whichever is lesser. That over-voting could not have been established by the evidence adduced by the Appellant.
On the issue of recording of the number of the voter on the queue when voting commenced, it is the contention of the 1st Respondent that, nowhere, either in the Electoral Act or the Manual for the Electoral officials, is it a requirement for any officer to record the number of voters on the queue when the voting commenced. That though there is a column in the INEC Form ECSA for the number of voter on the queue when voting commenced, there is no statutory. provision mandating the recording of such persons on the queue. It was therefore submitted that the column is a mere suplusage which does not enjoy statutory backing. That failure to make such recording cannot therefore be regarded as a non-compliance which will affect the result of the election.
Learned Counsel for the 2nd Respondent submitted that, there is a presumption of regularity ad correctness in favour of the result declared and that where the Petitioner/Appellant fails to rebut that presumption, his petition must fail. That the onus is therefore on the petitioner/Appellant to offer evidence in proof of any allegation asserted by him. He then contended that, the Appellant who contests the legality of the election has the burden of establishing his case by the combination of eye witnesses testimonies and documentary evidence. He relied on ABUBAKAR & 2 ORS v. YAR’ADUA & ORS (2008) 19 NWLR (pt.1120) p.1 at p.173 and OJUKWU v. YAR’ADUA (2009) 12 NWLR (Pt.1154) p.50 at pp.114 – 115. In that respect, learned counsel for the 2nd Respondent went on to submit that, the Appellant failed to establish any case of disenfranchisement of voters, as he failed to call a single person out of the 100,000 voters allegedly disenfranchised to testify. That no single witness was called to testify about the incidences of multiple voting, non-accreditation or defective accreditation of voters, ballot box stuffing, violence and thuggery, That the Appellant as Petitioner only tendered a load of documents either from the Bar or through P.W.1 but lead no evidence as to the number of polling units in Ogun State. It is therefore the submission of learned counsel for the 2nd Respondent that, the Appellant did not only fail to assist their own case, rather Appellant’s Counsel proceeded to give or proffer evidence by way of written addresses so as to read into the evidence adduced what is not there. The cases of INIAMA & ANOR v. AKPABIO & ORS (2008) 17 NWLR (Pt. 1115) p.225 at p.308, OBASUYI & ANOR V BUSINESS VENTURES LTD (2000) 5 NWLR (Pt.658) p.668 at 690 and NEKA BBB MANUFACTURTNG CO. LTD V AFRICAN CONTINENTAL BANK LTD (2004) 2 NWLR (Pt.858) p.521 at p.543 were cited in support.
Learned Counsel for the 2nd Respondent went on to submit that, the Appellant made wild allegations of violence, thuggery, over – voting and myriad of other malpractices at the election, the subject matter of this appeal. That those allegations are criminal in nature which require proof beyond reasonable doubt, but there was no scintilla of evidence to prove the allegations. That, in fact, the P.W.1 and P.W.2 testified to the effect that the polling was free and fair in their respective units in Abeokuta south and Obafemi/Owode L.G.A.s. He cited the cases of NWOLE v. IWUAGWU & ORS (2005) 16 NWLR (Pt. 952) p.543, AWUSE V ODILI & ORS (2005) 16 NWLR (pt. 952) p.416 at pp.490 – 491 in support.
Learned Counsel for the 2nd Respondent therefore submitted that, it is only were a Petitioner discharges the onus placed upon him, that the Tribunal can act on such evidence. Relying on the case of AGAGU V MIMIKO & ORS (2009) 7 NWLR (Pt.1140) p.342 at 436, learned counsel urged us to dismiss the appeal, as the appellant simply brought a petition that demonstrated and proved nothing.
We have thoroughly and carefully read the brief of argument of the 3rd Respondent. It is evident upon such reading, that the brief of the 3rd Respondent is substantially a reproduction of the brief of the 2nd respondent. In that respect, we do not find it of any utilitarian value besides that of the 2nd Respondent. It therefore suffices that the 2nd Respondent’s brief of argument has been summarized for the purpose of determining this appeal. We have also carefully studied the reply brief of the Appellant. We shall take that in to consideration on the determination of the issue(s) arising from this appeal were we find necessary. It is well settled principles of our law that, the general burden of proof; that is the burden of establishing the case, rests on the person who asserts. Election petitions are specie of civil proceedings. In that respect, like in all civil proceedings, the general or legal burden of proof lies on the person who would fail if no evidence at all were given in the matter. In other words, the person who asserts the affirmative of an issue bears or has the legal burden of proof of that which he asserts, because judgment would be given against him if no evidence is adduced in the case he has initiated. See AMODU V AMODE (1990) 5 NWLR (Pt.150) p.356, FAMUROTI v. AGBEKE (1991) 5 NWLR (Pt. 189) p.1; IGWE v. A.C.B. PLC (1999) 6 NWLR (pt.605) p.1, HARUNA v. MODIBBO (2004) 16 NWLR (Pt. 900) p.487; AJADI v. AJIBOLA (2004) 16 NWLR (Pt.910) p.241; and CHIME v EZEA (2009) 2 NWLR (Pt.1125) p.263.
The proof or rebuttal of issues which arise in the course of the proceedings, may however shift from the Plaintiff or Petitioner and vice-versa as the case progresses.
Thus the burden or onus of adducing evidence in proof or rebuttal of issues are generally fixed by the pleadings. See UZOKWE V DENSY INDUSTRIES (NIG) LTD (2002) 2 NWLR (PT.752) p.528; BUHARI V I.N.E.C. (2008) 19 NWLR (Pt.1120) p.246 and ADIGHIJE V I.N.E.C. (2010) 12 NWLR (PT. 1209) p.419. The Standard of proof required to discharge that general or legal burden is upon a preponderance of evidence or balance of probabilities. See FAYEMI V ONI (2010) 17 NWLR (Pt.1222) p.326 at 385; BUHARI V. I.N.E.C. (2008) 19 NWLR (pt.1120) p.246 and JANG V DARIYE (2003) 15 NWLR (Pt.843) p.436.
Based on the above stated legal principles, a petitioner in an Election Petition has the burden of proving the existence of all facts which he asserts or alleges. Like in all civil cases therefore, the burden of proof is on the petitioner who questions the result of an election to prove his claim. That is moreso, when there is a presumption of regularity and correctness in favour of the result declared by I.N.E.C. at an election. See AGBEKE v. EMORDI (2010) 1 NWLR (Pt.1204) p.1 at p.51; KALU V UZOR (2006) 8 NWLR (Pt. 981) p.66; MASSUABUM V. NWOSU (2010) 13 NWLR (Pt.1212) p.623 and ABARANYE V EMEANA (2008) 10 NWLR (Pt.1096) p.496. By this well established state of the law, therefore, until the petitioner who asserts discharges the initial, general or legal burden placed on him by law there will be nothing for the respondent to react to by way of defence. In other words, where a petitioner fails to adduce satisfactory evidence to prove what he has asserted, there will be no burden or duty on a respondent to adduce evidence, because the petitioner is to succeed on the strength of his own case, and not on the absence or weakness of the evidence from the defendant. This is especially so, as in a situation where a declaratory reliefs are sought, the party seeking for the declaratory relief must succeed on the strength of his own case, and not even on admission by a defendant. See OKAFOR V INEC (2010) 3 NWLR (Pt.1180) p.1 at 51.
The proper procedure in such situations, is for a trial judge or tribunal to approach the case by first considering the evidence led by the petitioner to see whether he has led evidence was sufficient evidence on all the material allegations or issues made by him, of which he is required to prove. If it is discovered that he has not led any evidence, or that the evidence is patently insufficient or unsatisfactory, then he has not discharged the burden placed on him, in which case, the Tribunal does not have to consider the case of the respondent at all.
On the other hand, for the burden to shift from the petitioner to the respondent, to prove the contrary of what the Petitioner has placed before the court, the petitioner must have placed cogent and credible evidence before the court in proof of his case. see KOLAWOLE v. FOLUSHO (2009) 8 NWLR (pt.1143) p.338, AGU v. NNADI (1999) 2 NWLR (pt.589) p.131, OYEFOSO v. COKER (1999) 1 NWLR (Pt. 588) p.654; SANUSI v. AMEYOGUN (1992) 4 NWLR (pt.237) p.527, ODON v. BARIGHA-AMANGE (No.2) (2010) 12 NWLR (Pt.1207) p.13; AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) p.416, ROTIMI v. FATUNJI (1999) 6 NWLR (Pt.506) p.305 and BELLO v. ARUWA (1999) 8 NWLR (pt.615) p.454.In such a case therefore, the respondent may choose not to call evidence. He will then be bound by the evidence laid before the Court by the Petitioner. It is therefore erroneous as put foreward by learned Appellant’s counsel, that failure of the 1st Respondent to call evidence or lead any evidence amounted to admission of the allegations made against it.
Based on the above stated state of the law, we now proceed to consider whether from the records, the Appellant had proved the allegations on the evidence adduced at the Trial Tribunal on the standard required by law as to have entitled him TO JUDGMENT. The Petition of the Appellant would show that the complaints made therein consisted of disenfranchisement of voters, non accreditation of voters, stuffing of the ballot boxes with already thumb printed ballot papers, non-qualification of the 2nd Respondent to contest the election, non-compliance with the provision of the Electoral Act and instances of Electoral malpractices or corrupt practices.
The Appellant pleaded at paragraph H of the Petition that the 2nd Respondent did not score majority of the lawful votes cast at the election in that over one hundred thousand persons who had been accredited to vote and were on the queue when voting started at the various polling stations were disenfranchised. It is the law that, a person or petitioner who alleges or complains of disenfranchisement of voters, has the onerous duty to call every person alleged disenfranchised to come and testify as to how and why he was not allowed to vote. Such a person must come and show his voters card and express his disappointment of not being allowed to vote or exercise his constitutional right to vote for a candidate of his choice. The comprehensive voters register for the constituency must also be tendered and credible evidence led thereon as to what transpired at each polling booth complained of See CHIME v. EZEA (2009) 2 NWLR (Pt.1125) p.263.
In the instant case, the Appellant did not call a single person who was alleged to have been disenfranchised to testify. The voters register for the constituency was also not tendered. We are not unaware of the fact that the Appellant called two witnesses who testified before the Tribunal. The P.W.1 is one SEMIU SODIPO. His written statement which was front-loaded is at pages 10 – 15 and is virtually a repetition of the Appellant’s petition. He was cross-examined extensively by the Appellant’s Counsel after he had adopted such written statement and various documents, to wit: statement of result (Forms EC&A) from some of the polling booths in the constituency had been tendered through him and admitted in evidence. Under cross-examination by learned counsel for the 1st Respondent, he stated thus:
“l voted during the election at WARD 13 Abeokuta South L.G.A. between 12:30pm and 1.00pm. There was not any form of election malpractices at the polling booth/station voted. The petitioner was supposed to have party agents in all the polling units during the election. The petitioner’s agent was present at the polling unit where I voted. Our party reported the malpractices to me”.
This witness went on to state under cross-examination by learned counsel for the 3rd Respondent that, it is true that not all the facts state in his written deposition were personally witnessed by him. That it is true that some of the facts or information contained in his deposition were relate to him by some other persons. He could not however know the names of his informants of the facts relayed to him and deposed in his written statement. He then stated at page 782 of the record as follows:
“I did not personally witness the disenfranchisement of over 100,000 voters across Ogun State as stated in my deposition because I was not personally at their polling units. I did not also personally witness the facts stated in my deposition because I was not personally at their polling units. I did not personally witness the facts stated in my para. 10(vi) of my sworn depositions. I became aware of the allegation in para. 11(i) – (iii) of my depositions after the elections of 26th April, 2011”.
Similarly, the P.W. 2 stated under cross-examination by the 2nd Respondent’s learned counsel that:
“When I cast my vote on the 26th April, 2011 it was free and fair and I do not know what happened outside my polling booth”.
He proceeded to state at page 791 under cross-examination by the 3rd Respondent as follows:
“There was no denial of the right to vote by any voter at the 26th April, 2011 elections in the polling booth I cast my vote. There were no shortages of election materials of any kind nor was there any form of gun shots sporadically by anybody in my polling unit………It is true that party agents signed for and collected the results sheets in the polling booth I voted after the 26th April, 2011 elections”.
In view of the foregoing, it is evident that the statements of P.W.1 and P.W.2 in the written depositions that there was disenfranchisement of over 100,000 voters in the constituency have been effectively controverted. Furthermore, the witness called by the Appellant contradicted their testimonies that there was disenfranchisement. Those clear and positive testimonies of the Appellant’s witnesses under cross-examination denying that there was disenfranchisement of voters effectively sealed the hope of the Appellant on this issue. Moreover, we had earlier held that, the allegations of disenfranchisement was based on hearsay. At least the witnesses called by the Appellant said so. The learned trial Tribunal was therefore right when it found that the allegations of disenfranchisement had not been proved.
It is interesting to note that the Appellant tendered a cache of documents, to wit: the result sheets from the various polling units in a effort to prove that voters were disenfranchised. Unfortunately, evidence of disenfranchisement cannot be deduced from the result sheets declared. Even where it can be done (which is not conceded) the party tendering those documents ought to call witness who will give oral evidence to explain or demonstrate how the disenfranchisement occurred. That is so because the law is that, the fact that a document has been admitted in evidence does not necessarity mean that significant weight or any weight at all, should automatically be attached to it without further proof. See AGBALLAH v. CHIME (2009) 1 NWLR (Pt.1122) p.373; ADEFARASIN V DAYEKH (2007) 11 NWLR (Pt.1044) p.89. accordingly, a party who tenders such documentary evidence has a duty to adduce oral evidence to support same. In other words, documents, no matter how useful they could be, should not be of assistance to case of any party who tenders same or to the court, if there is no admissible oral evidence from the person who tenders it, explaining the purport of such document. A duty is therefore cast on a party who tenders and relies on documents in proof of his case to call oral evidence to specifically relate each document he tenders, to that part of his case for which the document is tendered. That duty does not lie in the court to fish for evidence for the party tendering it, from those documents. See TERAB v. LAWAN (1992) 3 NWLR (Pt.935) p.150 EZE v. AKOLOAGE (2010) 3 NWLR (Pt.1180) p.183; CHIME v. EZEA (Supra) at pp. 380 – 381; AUDU V INEC (2010) 12 NWLR (Pt. 1212) p.456 and A.N.P.P. v. INEC (2010) 13 NWLR (Pt.1212) p.549 at p. 597.
The Appellant did not call any witness to give such oral evidence. He did not lead any of the two witnesses called by him to do so either. Rather, learned counsel attempted to give such explanation in his written address he submitted before the Tribunal. Therein he annexed an Appendix, which he marked as “APPENDIX A”, wherein he had drawn charts,’ showing cases of over-voting, disenfranchisement and non-recording of number of voters on the queue, at the various polling units in Ogun State in respect of the Governorship election. As rightly pointed out by learned counsel for the Respondents, counsel’s submission, in his Address or Argument cannot be a substitute for credible evidence. Surely, the address of counsel, no matter how brilliantly made, cannot by any stretch of imagination, be a substitute for the evidence that has not been led. See BUHARI v. OBASANJO (2005) 13 NWLR (Pt.941) p.1 AUTO IMPORT-EXPORT v. ADEBAYO (2005) 19 NWLR (Pt.959) p.44; YOYE V OLUBODE (1974) 1 All N.L.R. (pt.2) p.118 and EZE v. OKOLOAGU (supra) at p.21. It is obvious therefore that the Appendix, attached to the written address of the learned Counsel for the Appellant, cannot be substitute for oral evidence of witnesses, demonstrated and tested before the Tribunal, before it could be acted upon by the Tribunal. That not having been done, the said annexure was a worthless document and without any evidential value. It therefore means that the allegation of disenfranchisement has not been established.
On the issue of over-voting, we agree with the submission of learned counsel for the 1st Respondent at paragraph 3.54 of the 1st respondent’s Brief of argument that, over-voting was not pleaded. We have carefully scrutinized all the paragraphs of the Appellant’s petition. We are unable to find in any of those paragraphs where over-voting was either specifically or inferentially pleaded. Now it is trite law that, parties are bound by those facts which they have averred in their pleadings and will not be allowed to set up in Court a case different from or which is at variance with that pleaded. Where the evidence led does not align with the pleadings, it will not serve any useful purpose to the claimant. The end result therefore is to expunge any evidence unsupported by the pleading. See OKAFOR v. INEC (supra) at p.87, EHIMARE V EMHONYON (1985) 1 NWLR (Pt.2) p.177; OKOROMAKA v ODIRI (1995) 7 NWLR (Pt.408) p.114. We therefore hold that evidence of over-voting, if any, led in this case is liable to be expunged or disenfranchised.
In any case, there was no iota of evidence adduced by the Appellant showing that there was over-voting. In order to prove over voting, the Petitioner/Appellant needs to tender the register of voters for the entire constituency, the ballot boxes containing the ballot boxes containing the ballot a papers and the statement of result from all or at least the affected polling stations in the constituency. See KALGO V KALGO (1999) 6 NWLR (Pt.608) p.531, and MALUMFASHI V YABA (1999) 4 NWLR (PT.598) p.230. The Petitioner/Appellant would then proceed to demonstrate and establish from those documents tendered, how the over-voting occurred. He must then establish through the demonstration or evidence that, the total number of votes cast at the election exceeded the total number of votes on the register. See INIAMA V AKPABIO (2008) 17 NWLR (Pt.1116) p.225 and AWUSE V ODILI (2005) 16 NWLR (pt.952) p.416. In the instant case, no register of voter was tendered. No ballot box was also tendered. The statement of result tendered was simply dumped before the Court without more. No witness was called by the Appellant to demonstrate how over-voting alleged occurred. The two witnesses called by him did not do so either. Indeed the two witnesses testified that there was no incidence of any irregularity or electoral corrupt practices in the polling units where they voted.
The only logical conclusion is that there was no over-voting at the election complained against, which is subject of this appeal. Similarly, the allegation of ballot box stuffing with already thumb printed ballot papers, was also not proved. This is so because the requirement of proof of stuffing of ballot box or boxes alleged stuffed, must be tendered and opened before the court, for the contents to be seen by everyone present at the proceeding before the Tribunal, that indeed the allegation of the Petitioner could be said to have been proved. See HARUNA V MODIBBO (2004) 16 NWLR (Pt. 900) p.487; AUDU V INEC (Supra) at p.546; INIAMA V AKPABIO (Supra) at p.305 and A.N.P.P. v. USMAN (2008) 12 NWLR (Pt.1100) p. 1. In the instant case, no ballot box, talkless of its being opened was tendered before the tribunal. The Appellant cannot therefore be said to have proved the allegation of ballot box stuffing before the tribunal.
In the same vein there was no evidence establishing the allegation of non accreditation of voter. No witness was called nor was it demonstrated by the oral evidence that there was no improper accreditation of voters during the election. The burden was on the Appellant to prove that allegations, and he woefully failed to do so. Indeed, the two witnesses called by him testified that there was no improper conduct of the election and that voters freely cast their votes for the candidates of their choices at the election.
Related to the above is the argument of the Appellant that the 1st respondent did not comply with the requirement of the law as regards the endorsements on the forms EC8A. That the law requires that the Electoral officials record on the form EC8A the number of accredited voters, the number of voters in any polling unit and the number of voters on the queue on commencement of voting. That if those information had been endorsed on the Forms, it would have provided information as to why the voters were disenfranchised. Obviously, the duty of proffering prove that voters were disenfranchised cannot be deciphered from the endorsement on the forms. It is only the persons who were alleged to have been disenfranchised who can lead oral evidence of that fact, because the reason why a voter did not vote cannot be readily read out of the Forms EC8A. The duty of leading that evidence rests on the party who challenges the result of the election to lead such evidence. Furthermore, the non-observance of the rules or forms which will render an election invalid must be such as to amount to a conducting the election in a manner contrary to the principles of an election by ballot and it must be so great and grave as to satisfy the Court that it did alter or affected the majority of voters or the result of the election. See YUSUF V OBASSANJO (2005) 18 NWLR (Pt.955). In the instant case, the Tribunal found such non-compliance not to be substantial. Indeed there was no evidence before the tribunal showing otherwise.
On the whole therefore, it is clear that, based on the evidence adduced before the Tribunal, the Petitioner/Appellant had woefully failed to prove the allegations of disenfranchisement of voters, ballot box stuffing, over-voting and non-accreditation of voters on the standard required by law. The evidence led thereon was manifestly insufficient and utterly discredited under cross-examination. It was so manifestly and unreliable that no reasonable Tribunal could accept and act on same. There was therefore nothing for the respondent to rebut or lead evidence in defence. Accordingly, issues 1, 2 and 5 are hereby resolved in favour of the respondents.
That now brings us to issues 3 and 4, which have also been argued together. On these issues, learned counsel for the Appellant contended that since the learned trial tribunal found that Nasiru A. Isiaka was still a member of the Petitioner as at the 3/3/2011 and did not contest the party primaries of the PPN, but was substituted on the 3/3/2011 for the original candidate of the PPN, it was wrong for the Tribunal to hold that the participation of the said Nasiru A. Isiaka, was a pre-election matter. That the Tribunal misconceived the issue raised in the petition, as the issue raised in the grounds of the petition is an issue of noncompliance with the provisions of the Electoral Act 2010 (as amended), in relation to the nomination and/or substitution of Nasiru A Isiaka, whose illegal participation in the election substantially affected the result of the election.
It is the further contention of learned counsel for the Appellant that, ground 3 of the petition deals with issues of the illegal substitution and submission of the name of Nasiru A. Isiaka to contest the election on the platform of the PPN as well as Chief Olurin contrary to section 37 of the Electoral Act, 2010 (as amended). That those allegations have been admitted by the 1st Respondent. The long and short of this submission is that, INEC (1st Respondent) is expected in the performance of its duties under sections 31 and 76 of the Electoral Act, to weed out whose substitution is invalid and those whose nomination is void. He relied on the case of DINGYADI & ANOR v. WAMMAKO & ORS (2008) 2 LRECN p.103, to submit that, the Appellant’s complaint is that the candidacy of Nasiru A. Isiaka is invalid and even void, and thus the failure of INEC to effect the relevant provisions of sections 35 and 37 of the Electoral Act, 2010 (as amended) was a substantial non-compliance that has substantially affected the result of the election. That in so far as non-compliance with the provisions of the Electoral Act is a ground under section 138 (1) (b) of the Electoral Act, the Tribunal had the jurisdiction to look into this allegation of non compliance raised in this petition, and to consider the effect of the illegal participation of the said Nasiru Isiaka on the result of the election.
On the 4th issue, which invariably flows from ground 3, it is the contention of the learned counsel for the Appellant that, the non-compliance by the 1st Respondent in allowing the said Nasiru A. Isiaka to illegally participate in the election, confused the electorate who saw the candidate of the Appellant and the PPN as members of the same party, and thus splitting the votes between those candidates, since Nasiru Isiaka was well known member of the Appellant before the election. That but for the non-compliance, the total votes cast for the two, would have been cast for the Appellant’s candidate. Learned counsel then submitted that, the 1st respondent in non-compliance with the Electoral Act 2010 (as amended) allowed the said Mr. Isiaka whose nomination is void ab initio to participate in the election, had the effect of splitting the votes that should have been cast for the Appellant.
On those issues, it is the contention of the 1st Respondent that, assuming without conceding that the PPN candidate did not qualify to contest the election, the participation of the said candidate of the PPN in the election cannot be regarded as non-compliance in the part of the 1st Respondent, having regard to section 31 of the Electoral Act (Supra). Learned counsel then submitted that, even if the participation of the PPN candidate is regarded as non-compliance the Appellant failed to prove by evidence the effect of such non-compliance on the result of the election. In that respect, over detention was drawn to the decision of the trial Tribunal at pages 872 and 873 of the record of proceedings, to further submit that the weighty finding of the Tribunal has thus knocked -off the bottom any basis for the alleged effect of the participation of the PPN candidate in the election.
Learned counsel for the 1st respondent went on to submit that, the claim that the participation of the candidate of the PPN in the election had the effect of splitting their votes is a mere speculation, as these is no iota of evidence before the tribunal to arrive at such conclusion. That the fact that the Appellant won in certain polling units within the constituency negates the conclusion it wanted the tribunal to reach. That there is no evidence that all the votes of the PPN were meant for the Appellant as the PPN as a political party has its supporters. Learned counsel accordingly submitted that, the Appellant failed to establish any noncompliance and the substantial effect of the participation of the candidate of PPN in the election. The case of ZABUSKY v. ISRAELI AIRCRAFT IND. (2008) 2 NWLR (PT.1070) p.109 at 137 was cited in the support. The cases of OKONKWO v. OKAGBUE (1994) 9 NWLR (Pt.368) p.301, OLORIODE V. OYEBI (1984) 5 S.C.p.1. and REYNOLD CONST. CO. V REYNOLD BREZING BRONN & ANOR (1993) 6 NWLR (pt.297) p.122, were further cited, to submit that the PPN and its candidate have been struck out from the Petition, the court cannot therefore make a finding that will be prejudicial to their interest.
The 2nd and 3rd Respondents filed separate briefs of argument, but the contents of those briefs are substantially the same, virtually word for word. Their argument on issues 3 and 4 is that, the issue raised therein is a re-election matter and therefore does not amount to such non-compliance with the provisions of the Electoral Act, 2010 (supra) as to vitiate the results of the election. That, the alleged illegal participation of the PPN and its candidate, was not sufficient reason to vitiate the result of the election, because it had nothing to do with the 2nd Respondent and the other 17 candidates who contested the election. Furthermore, that the votes cast for the PPN had no such effect as “vote-splitting”, as confirmed by the P.W.2. That in any case, if the participation of the PPN and its candidate amounted to a non- compliance, it was not substantial enough to have substantially affected the result of the election, since as was demonstrated by the Tribunal, the 2nd Respondent would still have a plurality of 51,738 votes over the combined votes scored by the Appellant and the PPN Candidate. We were the then urged to dismiss the appeal and affirm the judgment of the trial Tribunal.
Now, an act of non-compliance with the Electoral Act may be defined as the conduct of an election contrary to the principles or requirements of the Electoral Act or Rules and Regulations made there under. Generally, the question in every case where non-compliance is alleged is, whether or not in view of the findings of the Court, the Constituency was allowed to elect its representatives. See INEC V. OSHIOMOLE (2009) 4 NWLR (Pt.1132) p.607. The onus of proving the particular non compliance alleged and its effect on the result of the election is on the Petitioner. This is more so, as it is not every non-compliance that will lead to the result of the election being invalidated, because, no human endeavor is error free as such, the law reckons that in the conduct of an election, mistakes may willy nilly occur. In that respect, for an act of non-compliance to affect the result of an election, it must be substantial and also substantially affect the result. It is for the Petitioner to adduce cogent and credible evidence showing that the non-compliance he complains of is substantial and that it affected the result of the election substantially. See UKPO V NNAJI (2010) 1 NWLR (Pt.1174) p.175; ANPP v. INEC (Supra) at p.598, BUHARI V OBASONJO (Supra) at p.192 and EZE v. OKOLOAGU (2010) 3 NWLR (pt.1180) p.183.
Now, the Appellant contends that the 1st Respondent allowed the PPN to present a candidate at the election contrary to the provision of the Electoral Act, 2010 (Supra), as that candidate did not participate in the Party primaries of the PPN and therefore the submission of his name to the 1st Respondent outside the time allowed by the Act was illegal. That the act of the 1st Respondent amounted to a non-compliance which affected substantially the result of the election. The Appellant’s complaint in variably touched on the issue of nomination of the PPN candidate; Mr. Isiaka to contest the election. The Tribunal found that the election was a pre-election, matter outside the jurisdiction of the Tribunal.
It should be noted that the jurisdiction of the Election Tribunal is as enshrined in section 285 of the 1999 Constitution (as amended). By that provision therefore, Election Tribunals are established to determine whether any person has been validly elected as a member of any Legislative Assembly, Governor of a State or President, etc. Accordingly matters determinable by such Tribunals are those which occur during the conduct of an election and not pre or before the conduct of the Election. See AMAECHI V INEC & ORS (2007) 18 NWLR (Pt.1065) p.170. In other words, election Petitions are concerned with matters which arose contemporaneous with the conduct of the election. Accordingly an election tribunal has no powers to investigate matters which took place before the conduct of the election. See ANPP v. USMAN (Supra) at p.55; IBRAHIM V INEC (1999) 3 NWLR (Pt.614) p.334 and CHIME v. ONYIA (2009) 2 NWLR (pt. 1124) P.1. The issue of late or improper nomination of a candidate at an election is a pre-election matter. The learned trial Tribunal was therefore right when it held that the matter was not within its competence to adjudicate upon.
Furthermore, there is nothing in the Electorate Act, 2010 (Supra) to show that late nomination can invalidate a return made at an election. There is nothing in the Act to show that late or even improper nomination can invalidate the election of a candidate or even a ground for questioning an election under section 138 of the Electoral Act (Supra). See OKON v. BOLO (2004) 1 NWLR (Pt. 854) p.378. In any case, it is the law that, only a member of the same political Party has a right to question a nomination made by the party. It is for the members of the political Party to resolve the issue domestically or with INEC, at the normal Law Courts. Thus, the Petitioner could not use the issue of nomination of the PPN candidate to question or challenge the election of the 2nd Respondent.
It is also interesting to note that the PPN and its candidate (Nasir A. Isiaka) there initially joined in the Petition. However, upon their application, their names were struck out of the Petition. A careful consideration of the Petition would show that the Appellant had made the issue of nomination and participation of the PPN and its candidate at the election, ah issue in the Petition. There is no way, the Tribunal could make a finding on the issues raised by the Appellant without pronouncing on the interests of the PPN and its candidate. It is the Law that, a court or tribunal has no power to make an order which affects the interest of any person or persons who is or are not parties to the case or dispute before it. Where such order is made it will not be binding on such parties, and is also liable to be set aside at the instance of such parties. See BELLO V INEC (2010) 8 NWLR (Pt.11960 P. 342 AND ADENUGBA V ODUMERU (2003) 8 NWLR (pt. 821) p. 163. In that respect, the Tribunal could not have lawfully made an order or make any finding on the issues as raised by the Appellant, without prejudicing the interests of the PPN and its candidate.
The crux of the matter as raised by the Appellant, in my view, crumbles under the finding of the Tribunal at pages 872 and 873 of the record of appeal. At the risk of repetition, we propose to reproduce that part of the finding at page 873 hereunder. It is as follows:-
“It will them require the evidence of each of the 137,057 persons who voted for him to state but for the substitution, they could each have voted the Petitioner’s candidate. We cannot arrive at the conclusion on the evidence of just one independent voter.
Assuming again without conceding that the 137,057 voters who voted for Isiaka could have voted for the Petitioner but for the substitution, would the substitution be counted as affecting substantially the result of the election?,,. We have done the calculation and we confirm The figure, i.e that the 2nd Respondent would leading by a total of 57,738 votes”.
The above finding of the Tribunal cannot be faulted. That finding goes to show that, even if the participation of the PPN and its candidate at the election could be regarded as illegal (which has been found not to be so), it did not substantially affect the result of the election. That is so as rightly found by the Tribunal, even it all that voted for the PPN candidate had voted for the Appellant, the 2nd Respondent could still have won the election by a majority of 51,738 votes!!!.
Having found as above, it is clear that all the issue that arose for determination in this appeal have been resolved in favour of the Respondents. It is for those reason that we found no merit in the appeal and consequently dismissed same.
This appeal therefore stands dismissed as lacking in merit.
We make no order as to cost.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree
JOSEPH SHAGBOAR IKYEGH, J.C.A.: On 21.12.2011, I summarily dismissed the appeal and promised to give my reasons for the dismissal of the appeal today. These are my reasons. I agree with the judgment prepared by my Learned brother, Tsammani, J.C.A. The witnesses that testified for the appellant said they voted at the election. No disenfranchised voter gave evidence in the petition. Proof of disenfranchisement of a voter at an election is normally attained by the registered voter giving evidence backed by the tendering in evidence of his voter’s card and the voters register of the unit showing the disenfranchised voter is a registered voter in the polling unit and that his name in the voters register was not ticked or accredited as having not voted at the election-see Audu v. INEC and other (2010) 13 NWLR (Pt.1212) 456 at 523 cited at pages 24-25 of the 1st respondent’s brief of argument prepared by its learned counsel, Mr. Uche obi. The evidence before the lower Tribunal did not meet the legal requirements stated above.
The electoral documents or forms admitted in evidence as Exhibits at the lower Tribunal were not tied to the oral testimony of any of the witnesses called by the appellant for the purpose of proving the serious allegations of ballot stuffing, over voting and disenfranchisement of voters. The said electoral documents were dumped on the lower Tribunal. It was not the duty of the lower Tribunal or counsel to marry the electoral documents in question to the said allegations – see Nwole v. Iwuagwu and Others (2005) 16 NWLR (Pt.952) 543 at 571 per Fabiyi, J.C.A. (now J.S.C.), Iniama and Another v. Akpabio and Others (2008) 17 NWLR (Pt.1116) 225 at 308 per Galadima J.C.A., (now J.S.C.) and at 323; Rimdam v. Lar (1999) 9 NWLR (Pt.620) 538 distinguishing Terab v. Lawan (1992) 3 NWLR (Pt.231) 569., and above all the Supreme Court case of Buhari v. INEC (2009) ALL FWLR (Pt.459) 1 at 569.
For the exhaustive reasons given in the lead judgment just delivered and for the reasons given above, I too see no merit in the appeal and hereby dismiss it and abide by the consequential orders in the said lead judgment.
MOHAMMED A. DANJUMA, J.C.A.: Having read the lead judgment just rendered, I agree entirely that this appeal has no merit and must fail. The appellant did not lead any scintilla of evidence in proof of the allegations as pleaded at the trial tribunal and was bound to lose as the burden of proof is on he that alleges.
Appeal is dismissed for want of merit.
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Appearances
A. Amao Esq. (with Mr. Ehinsin Esq.) holding the brief of R. A. OluyedeFor Appellant
AND
Uche V. Obi Esq. with J. Kulugh Esq. and G. Onojason Esq. for the 1st Respondent;
Dr. O. F. Ayeni with Chief Tunde Akare, A. A. Omoyinmi Esq.; S. N. Anichebe Esq., O. F. Abegunde Esq., A. Ekengba Esq. and J. D. Musa Esq. for the 2nd Respondent;
George Oyeniyi Esq. for the 3rd Respondent.For Respondent