ORJI & ANOR v. INEC & ORS
(2020)LCN/15179(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, January 09, 2020
CA/LAG/EPT/REP/1375/2019
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Tijjani Abubakar Justice of the Court of Appeal
Between
1. HON. RITA ORJI 2. PEOPLES DEMOCRATIC PARTY (PDP) APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. HON. KOLAWOLE TAIWO MUSIBAU 3. ALL PROGRESSIVE CONGRESS (APC) RESPONDENT(S)
RATIO
WHETHER OR NOT A NOTICE OF APPEAL IS AN ORIGINATING PROCESS
In the appellate Courts, the law is now elementary that the Notice of Appeal is the originating process and so the foundation for the proper and valid invocation of the appellate jurisdiction of the Appellate Court over an appeal against the decision/judgment of a trial/lower Court. In the Appellate Court, the Notice of Appeal is therefore very crucial and fundamental; for a valid appeal over which it can properly exercise its jurisdiction to entertain and adjudicate.
Any vital and substantial defect in the Notice of Appeal would render it incompetent, invalid and thereby rob the Appellate Court the requisite jurisdiction to exercise in respect of an appeal.
In addition to the cases cited by Learned Counsel on the point, see Attorney General of the Federation v. Guardian Newspapers Limited (1999) 9 NWLR (Pt. 618) 187, Uwazurike v. Attorney General of the Federation (2007) 8 NWLR (Pt. 1035) 1, Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1, FBN, Plc v. T.S.A. Industry Limited (2010) 15 NWLR (Pt. 1216) 247, Mohammed v. M.E. Company Limited (2000) 2 NWLR (Pt. 1179) 473. PER GARBA, J.C.A.
WHETHER OR NOT THE COMPLAINTS AGAINST BY A LOWER COURT ARE EMBODIED IN THE GROUNDS SET OUT IN A NOTICE OF APPEAL
The grievances/complaints against a decision by a Lower Court are embodied in the grounds to be set out on a Notice of Appeal which would be the case put forward by an Appellant to the Appellate Court at the appeal for its consideration and adequate notice of which is given to the Respondent(s) to enable him/them prepare to meet.
See Ogbebor v. Danjuma (2003) 15 NWLR (Pt. 1843) 403, Aderounmu v. Olowo (2000) 4 NWLR (Pt. 652) 253, Ibrahim v. Osunde (2003) 2 NWLR (Pt. 804) 21, Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (Pt. 973) 330, Cooprative Bank Limited v. Ogwuru (1991) 1 NWLR (Pt. 168) 458, Thor Limited v. First City Monument Bank (1997) 1 NWLR (Pt. 479) 35. PER GARBA, J.C.A.
THE POSITION OF LAW ON ADMISSIBILITY OF DOCUMENTS IN EVIDENCE
The established position of the law on admissibility of documents in evidence is, generally, that such documents must be pleaded by the party seeking to make use of them as evidence at a trial. This is an additional practice requirement for admissibility of documents in evidence after the statutory conditions set out in Sections 1 and 83 of the Evidence Act, 2011, which applies to Election Petitions. This Court, in the case of A.N.P.P. v. Usman (2008) LPELR-3786, citing Ojukwu v. Obasanjo (2004) 1 EPR, 626 @ 673, restated the law that:-
“Documentary evidence is one of the vital methods by which the Petitioner is required to substantiate his allegation in this petition. The general rule that governs the admissibility of documentary evidence is applicable to documents to be tendered in Election Petitions.”
In Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250, (1999) 12 SCNJ 259 @ 275, Achike, JSC, laid down the main criteria governing the admissibility of a document in evidence as follows: –
(a) Is the document pleaded?
(b) Is it relevant to the inquiry being tried by the Court; and
(c) Is it admissible in law?
See also Asuquo v. Eyo (13) LPELR-20199(CA); ANPP v. PDP (2006) 31 WRN, 37; Oba Oyediran of Igbonla v. Oba Alebiosu II (1992) 1 NWLR (Pt. 249) 550; Torti v. Ukpabi (1984) 1 SCNLR, 214, (1984) 1 SCNR, 214, (1984) 1 SC, 370; Dumiya v. Jimoh (1994) 3 NWLR (Pt. 334) 609; Ogbunyiya v. Okudo(1979)5-9, SC, 33.
The underlining principle in the requirements of the law on the admissibility of a document intended to be used as evidence in judicial proceedings, is to give sufficient notice and adequate opportunity to the other party to a case to know the nature of the evidence to be tendered by his opponent to enable him prepare to meet the case against him. It is to avoid the element of surprise by ambush in the trial of the case. This is the purport of the provision of Paragraph 12(3) of the First Schedule to the Electoral Act, 2010 in the requirements that copies of documentary evidence shall accompany the Reply of a Respondent to an election petition. It is primarily meant to enable a Petitioner know the nature of documentary evidence to be relied on by the Respondent in defence of the Petition brought by the Petitioner so as to enable him react or respond to the defence, as may be necessary. See A.P.G.A v. Al-Makura (2016) 5 NWLR (Pt. 1505) 316 and PDP v. Edem (2016) 12 NWLR (Pt. 1525) 106. PER GARBA, J.C.A.
DEFINITION OF “HEARSAY EVIDENCE”
In simple terms, hearsay evidence is a/the statement by a person; written or oral, who is not called as a witness in a trial, given by a witness as proof of the facts contained therein. It arises where a witness in a trial and in his testimony, repeats a statement made by another person who is not called as a witness in the case, in order to prove the truth of the facts stated therein. Sections 37 and 38 of the Evidence Act, 2011, defines and render such type of evidence inadmissible, respectively by providing that: –
“37. Hearsay means a statement-
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is no admissible under any provision of this Bill, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
38. hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”PER GARBA, J.C.A.
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the National and State Houses of Assembly Election Petitions Tribunal, Lagos State, (the Tribunal, hereafter), delivered on the 11th November, 2019 by which the Appellants’ petition against the declaration and return of the 2nd as the winner of the election to the House of Representative for Ajeromi-Ifelodun Federal Constituency of Lagos State, was dismissed. The election was conducted by the 1st Respondent on the 23rd February, 2019 and 27th April, 2019 wherein, among others, the Appellants and the 2nd and 3rd Respondents participated as candidates and political parties that sponsored them.
There are twenty-four (24) grounds contained on the Notice of Appeal dated and filed on the 29th November, 2019 upon which the appeal is predicated and in the Appellants’ brief filed on the 13th December, 2019, seven (7) issues are set out for decision by the Court. They are as
“1. Whether the lower Tribunal was right in refusing to accord probative value to the evidence of PW1 to PW32, the polling unit agents of the Appellants who testified as to the regular conduct of elections of 23rd February 2019 in their polling units and as to the illegality of the cancellation of their polling unit results, on the ground, according to the Tribunal, that their witness statements were the same in form and substance. (Ground 1).
2. Whether the learned Judges of the lower Tribunal were right in the way they treated and refused to accord probative value to the evidence of PW33, PW34, PW35, PW36, PW37, PW38 and PW39 (Grounds 3, 4, 5, 6, 7, 8)
3. Whether the lower Tribunal was right when it countenanced and relied on Exhibits R3 to R10 and other documents tendered by the Respondents none of which were frontloaded. (Ground 9)
4. Whether having regard to the pleadings and the totality of evidence led in the Petition, the lower Tribunal was right when it held that the Appellants failed to prove that the cancellation of polling units results for the election of 23rd February 2019 by the 1st Respondent was unlawful. (Grounds 10, 11, 12, 13, 14, 15, 19).
5. Whether the lower Tribunal was right when it failed to compute the polling units results of the election of 23rd February, 2019 unlawfully cancelled by the 1st Respondent and when it failed to return, the 1st Appellant as the duly elected member of the House of Representatives for Ajeromi/Ifelodun Federal constituency of Lagos State based on the evidence before the Tribunal. (Ground 16, 18, 20)
6. Whether the lower Tribunal was right when it held that the Appellants did not establish acts of non-compliance and corrupt practices against the rerun election of 27th April, 2019. (Grounds 21 and 22).
7. Whether the lower Tribunal was right when it held that the Petitioners failed to prove any of the grounds in the Petition and dismissed the Petition. (Grounds 23 and 24).”
Three (3) Issues are said to call for determination by the Court in the unpaginated 1st Respondent’s brief filed on 18th December, 2019 in the following terms: –
“(a) Whether the Tribunal was right when from its assessment of the evidence demeanor or conduct of the witnesses for the Appellants and the questions elicited during cross-examination came to a conclusion that evidence of the said witnesses were unreliable evidence and not capable of being believed (Distilled from Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 22 of the Appeal).
(b) Whether by virtue of Paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) and the fact that RW1-RW7 were witnesses on subpoena, the documents tendered through them particularly R1-R10 are inadmissible before the Tribunal (Distilled from Grounds 9, 10, 11, 12, 13 and 14 of the Appeal).
(c) Whether the Appellants proved by substantial and credible evidence their case of corrupt practices and substantial non-compliance with the Electoral Act with respect to the election of 23rd February, 2019 and the rerun of 27th April, 2019 respectively for Ajeromi-Ifelodun Federal Constituency of Lagos State to be entitled to judgment. (Distilled from Grounds 15, 16, 17, 18, 19, 20, 21, 23 and 24 of the Appeal)”
For the 2nd and 3rd Respondents, similar Issues as those in the Appellants’ brief were listed in their brief dated and filed on the 17th December, 2019 for determination in the appeal. There is no need to repeat the issues here.
In addition, the 2nd and 3rd Respondents being dissatisfied with a portion or part of the decision by the Tribunal on the preliminary objection raised by them to the competence of the petition filed a Notice of Cross-Appeal on the 29th November, 2019 containing of two (2) grounds of complaint.
A sole issue was formulated for determination in the Cross-Appeal in both the Cross Appellants’ and 1st and 2nd Cross Respondents’ briefs filed on 13th December, 2019 and 18th December, 2019, respectively as follows: –
“Whether having regard to the provisions of the Regulation and Guidelines for the conduct of Election made in January 2019 and the Oath Act, Laws of Federation of Nigeria, the witness statements filed by the petitioners as that of PA1 – PA52 and WA1 – Wa7 are competent and valid in law to be adopted as evidence in chief by named individuals called as witnesses. (Grounds 1 & 2 of the Notice of Cross Appeal).”
The 1st and 2nd Cross Appellants also filed Reply briefs in reaction to the briefs filed by the Respondents and Cross Respondents in the appeal and cross appeal. I would refer to them later.
After a careful reading of the cross appeal, the grounds thereof go to question and attack the competence of the Appellants’ petition, which by inevitable legal and judicial consequence, goes to challenge the competence and jurisdiction of the Tribunal to adjudicate over the petition.
In the event that the cross-appeal succeeded, the petition would be declared incompetent, thereby depriving the Tribunal of the requisite jurisdiction to adjudicate over it and eventually, the jurisdiction of this Court to entertain the appeal by the Appellants against a decision/judgement which that Tribunal lacked the jurisdiction to deliver. Want of jurisdiction of a trial Court to adjudicate over a matter (or election petition) would deprive and deny an Appellate Court the corresponding competence and jurisdiction to adjudicate over an appeal against its decision in the matter on the merit. Abbas v. Solomon (2001) 7 SC (Pt II) 45; A. G. Leventis v. Akpu (2007) 6 SC (Pt. I) 239.
The law also permits that the issue of a trial Court’s jurisdiction to adjudicate over a matter can be raised at any time and at all appellate levels in the judicial hierarchy and once raised, should be decided before a consideration and determination of other issues in an appeal. See A. G. Lagos State v.Dosunmu (1989) 3 NWLR (Pt. II) 552; Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527; Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) 623; Amadi v. NNPC (2000) 6SC, (Pt. 1) 66; Okonkwo v. FRN (2006) 14 NWLR (Pt. 1000) 566; Adeleke v. O. S. H. A. (2006) 16 NWLR (Pt. 1006) 608.
In the above premises, I find it expedient to deal with the cross appeal first before a consideration of the merit of the main appeal.
Cross Appeal:
As stated above premises, the 1st and 2nd Cross Respondents have filed a Notice of Preliminary Objection on the 18th December, 2019 to challenge the competence of the cross appeal itself and so question the Court’s jurisdiction to entertain it. They contend on the Notice of Preliminary Objection, that: –
“1. The Notice of Cross Appeal as formulated by the Cross-Appellant is incompetent.
2. Ground 1 of the Grounds of Notice of Cross Appeal is incompetent.
3. The Cross Appeal is statute barred.
4. The Cross Appeal is incompetent for not having its own appeal.”
The grounds/particulars of the objection are as follows: –
“1. In the Notice of Cross-Appeal particularly the Paragraph describing the part of the decision complained of, the Appellants stated that they were appealing against the “Part of the decision.”
2. The Cross-Appellants did not state whether they are appealing against the whole or part of the decision of the Tribunal contrary to the mandatory provisions of Order 6 Rule 2(1) of the Court of Appeal Rules.
3. The Appeal is against the Ruling contained particularly at page 1057 of the Record of Appeal whereby the objection on the competence of the petition on the ground that the names of Petitioners’ witnesses were coded in the Petition was not sustained.
4. Ground 1 of the Grounds of Appeal do not relate to or attack any ratio of the Ruling delivered on the 11th day of November, 2019.
5. Ground 2 of the Notice of Appeal relate to the decision of the Tribunal which allowed the Petitioner’s witnesses to adopt their witness statement on oath wherein their various names were coded as PA1-PA52.
6. The said witness statement on oath were variously adopted on different dates between 17th July, 2019 and 22nd August, 2019.
7. The notice of Cross-Appeal on the subject was filed on the 29th day of November, 2019, a period of more than 21 days from when the decisions of the Tribunal allowing the adoption were rendered.
8. Even though the Cross Appellants filed an application to rely on the Record of Appeal already transmitted by the 1st and 2nd Cross-Respondents, the Cross Appeal is a separate appeal on its own and thus should have an appeal number.”
The arguments on Ground one (1) of the objection are that the Notice of Cross Appeal is incompetent because it did not state the specific part of the decision of the Tribunal appealed against since the Notice of Cross Appeal is the foundation of the appeal. Order 6, Rule 2(1) of the Court of Appeal Rules, 2011 and the case of Udenigwe v. Emenalo (2009) ALL WLR (Pt. 454) 1544, among other cases, were cited in support of the arguments.
On the Ground two (2) of the objection, it is contended that the grounds of the Notice of Cross Appeal do not flow from the judgement of the Tribunal and so incompetent, liable to be struck out by the Court on the authority of, inter alia, Christaben v. Group Ltd. v. Oni (2010) ALL FWLR (Pt. 504) 1439 and Obi v. I. N. E. C. (2007) 7 SC, 268.
In addition, it is submitted that the Tribunal did not adopt their earlier ruling on the objection to the coding of names of the witnesses by the Petitioners, in its judgement but merely made reference to the ruling of 17th July, 2019 on the propriety of coding names by witnesses.
According to Counsel, the Cross Appellants only objected to the Statement on Oath of PW1, which objection was over-ruled in the ruling of 17th July, 2019, but did not object to the other witnesses’ Statement on Oath, citing Nwana v. FCDA (2007) 11 NWLR (Pt. 1044) 59 on the principle that an appeal is by way of a re-hearing of a case by the Court and that the Cross Appellants cannot appeal against or/on an issue not placed before and pronounced on by the Tribunal. Furthermore, it is the argument of Learned Counsel that since the various Statements on Oath by the 1st and 2nd Respondents’ witnesses were adopted between 17th July, 2019 and 22nd August, 2019, the Cross Appellants had 21 days from the last date, by virtue of Paragraph 6 of the Elections Tribunal and Court Practice Directions, 2011, to file their appeal. The cases ofACN v. INEC (2013) 13 NWLR (Pt. 1370) 161 and INEC v. Ogbadibo (2016) 3 NWLR (Pt. 1498) 167 on the effect of a limitation law, were referred to in support of the argument.
For the Cross Appellants, the response to the objection by the 1st and 2nd Respondents as contained in the Cross Appellant’s Reply brief, is that the argument that the grounds of the cross appeal did not arise or flow from the judgment of the Tribunal is misconceived since the objection raised to the competence of the Statements on Oath of the witnesses in question, was determined in the judgment of 11th November, 2019. Reference was made to pages 1091 and 1672 of the Record of Appeal as well as pages 887-88 where an objection to the adoption of the Statement on Oath of PW29 was upheld by the Tribunal and it is submitted that the (NCA) Notice of Cross of Appeal was filed within 21 days of the judgment which incorporated a decision on the objection to the Statements on Oath of the witnesses. On the authority of Onwe v. Nwaogbuinya (2001) 1 SC (Pt. 1) 22, Ukpo v. Imoke (2009) 1 NWLR (Pt. 1121) 90, it is submitted that time does not run against a decision by a trial Court to reject or admit evidence in the course of a trial since it is part of the main trial and not an interlocutory decision.
Resolution of Objection:
In the appellate Courts, the law is now elementary that the Notice of Appeal is the originating process and so the foundation for the proper and valid invocation of the appellate jurisdiction of the Appellate Court over an appeal against the decision/judgment of a trial/lower Court. In the Appellate Court, the Notice of Appeal is therefore very crucial and fundamental; for a valid appeal over which it can properly exercise its jurisdiction to entertain and adjudicate.
Any vital and substantial defect in the Notice of Appeal would render it incompetent, invalid and thereby rob the Appellate Court the requisite jurisdiction to exercise in respect of an appeal.
In addition to the cases cited by Learned Counsel on the point, see Attorney General of the Federation v. Guardian Newspapers Limited (1999) 9 NWLR (Pt. 618) 187, Uwazurike v. Attorney General of the Federation (2007) 8 NWLR (Pt. 1035) 1, Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1, FBN, Plc v. T.S.A. Industry Limited (2010) 15 NWLR (Pt. 1216) 247, Mohammed v. M.E. Company Limited (2000) 2 NWLR (Pt. 1179) 473.
The Court of Appeal Rules, 2016, applicable to the cross appeal (and not the 2011 Court of Appeal Rule referred to by the learned counsel for the 1st and 2nd Cross Respondents in the objection, which have been repealed), in Order 7, Rule 2(1) provide for the contents and requirements of a Notice of Appeal as provided for in the Form 3 of the 1st Schedule thereto. Among other things, a Notice of Appeal is required to state or specify whether the appeal is against the whole or only a part of the decision of a lower Court in question.
Where it is only against a part of the decision of a lower Court, it is required that the specific or particular part or portion of the decision be stated or set out distinctly on the Notice of Appeal.
The purpose of giving sufficient particulars in the Notice of Appeal is to enable the Respondent/s to the appeal have proper notice and adequate knowledge of the nature of the complaint an Appellant has against the decision of a Lower Court which he intend to call and invite the Appellate Court to review at the hearing and determination of the appeal. The essence of particulars of a Notice of Appeal is to enable the Respondent/s know the nature of the grievances/complaints against the decision of a Lower Court given in his/their favour and to prepare for the case to be presented at the appeal.
The grievances/complaints against a decision by a Lower Court are embodied in the grounds to be set out on a Notice of Appeal which would be the case put forward by an Appellant to the Appellate Court at the appeal for its consideration and adequate notice of which is given to the Respondent(s) to enable him/them prepare to meet.
See Ogbebor v. Danjuma (2003) 15 NWLR (Pt. 1843) 403, Aderounmu v. Olowo (2000) 4 NWLR (Pt. 652) 253, Ibrahim v. Osunde (2003) 2 NWLR (Pt. 804) 21, Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (Pt. 973) 330, Cooprative Bank Limited v. Ogwuru (1991) 1 NWLR (Pt. 168) 458, Thor Limited v. First City Monument Bank (1997) 1 NWLR (Pt. 479) 35.
On the Notice of Cross-Appeal, it is clearly indicated that the appeal is against only a part of the decision/judgment of the delivered 11th November, 2019 by the Tribunal and although the specific part was not stated or set out, it was clearly indicated in the two (2) grounds that come immediately after the paragraph or column where it was to have been specified. Essentially, the part/portion of the judgment of the Tribunal with which the Cross Appellants were dissatisfied was clearly stated in the grounds of the appeal which represent the complaints/grievance against it.
It is not the complaint of the 1st and 2nd Cross Respondents in their objection that they are in any manner or way, howsoever, misled by the omission to separately set out the part of the judgment appealed against in the paragraph/column of the Notice of Cross Appeal. The Notice of Cross Appeal for the purpose of providing sufficient notice and adequate opportunity to the Cross Respondents to know the case they are to meet at the appeal and to prepare for it, has substantially complied with the requirements on the contents of a Notice of Appeal as provided for in Order 7, Rule 2(1) of the Court of Appeal Rule, 2016 and so is competent and valid for the appeal. See Samuel v. Etubi (2011) LPELR-4200 (CA).
This ground of the objection fails and is over-ruled.
It is also argued that the grounds of the cross-appeal did not arise or flow from the judgment of the Tribunal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In substance, the grounds of the cross-appeal complain against the decision by the Tribunal to admit and countenance the Statements on Oath of the 1st and 2nd Cross Respondents’ witnesses, thereby over-ruling the objection to their competence by the Cross Appellants.
The arguments of the 1st and 2nd Cross-Respondents is that the grounds do not arise from the judgment delivered on 11th November, 2019 and that the Tribunal delivered a decision on the objection to the admissibility of the Statements on Oath in a Ruling delivered on the 17th July, 2019.
However, the pages of the Record of Appeal cited by the Cross Appellants, i.e. pages 1091 and 1672 have put paid to the said arguments of the Cross Respondents.
At page 1091, the Tribunal stated that:-
“The 2nd & 3rd Respondents filed a notice of Preliminary Objection to the Petition dated and filed 18th June, 2019 which hearing was stepped down to be heard along with the Petition. Ruling on the preliminary objection shall be delivered in the course of this Judgment.”
Then at page 1672, the Tribunal in its judgment said,
“The 2nd & 3rd Respondents counsel Mr. Lawal Pedro SAN had filed a notice of preliminary objection to this petition and hearing was stepped down to be heard along with the Petition. We now proceed to deliver ruling.”
In view of these statements by the Tribunal, the learned Counsel for the Cross Appellants is right that the ground of the objection and argument of the 1st and 2nd Cross Respondents that the grounds of the cross appeal do not arise or flow from the judgment of the Tribunal, is misconceived, and grossly so, it must be said. Apparently, the ground of the objection on which it was also argued that the Notice of Cross Appeal was not filed within the 21 days stipulated in Paragraph 6 of the Elections Tribunal and Court Practice Direction, 2011, is unmeritorious and deserved to be dismissed.
On the whole, the preliminary objection to the cross appeal is devoid of merit and it is dismissed.
Cross-Appeal: Cross-Appellants’ Submissions
The arguments on the sole issue are to the effect the Statements of Oath of witnesses filed by the 1st and 2nd Cross Appellants along with and in support of the petition were incompetent for being in contravention of Section 13 of the Oath Act on ground of failure to supply the names of the deponents thereof and as a consequence rendered the petition incompetent for failure to comply with provisions of Paragraphs 4(5)(b) and (6) of the 1st Schedule to the Electoral Act. Etene v. Nyong (2012) LPELR-8031, (CA), GTB v. Abiodun (2017) LPELR-42551(CA) and paragraph 6 of the 3rd Cross Respondent’s Regulation and Guidelines were cited and set out in support of the submissions. It is the contended that the Practice Directions in Paragraphs 4(5)(a) do not allow deponent of Statement of Oath to identify themselves by use of initials or alphabets in the statements and that even if they do, they would be in conflict with and must give way to the Oath Act, which is a substantive legislation, on the authority of Auwalu v. Federal Republic of Nigeria (2017) LPELR-43824 (SC) and Bauchi State Government v. NPC (2014) LPELR-23729 (CA). According to learned counsel, cases including Joseph v. Labour Party (2015) LPELR-42145 (CA) which validated the use of initials, alphabets and figures to disguise the identity of witnesses in election petitions, do not apply in the case of the 1st and 2nd Cross Respondents since the facts are different. The facts are, he said, that the 3rd Cross Respondent’s Regulations 2019 makes it mandatory for parties to submit list of agents with their full names and that they and the Oath Act were not considered in the other cases. Ugwu v. PDP (2013) LPELR-21356(CA) on when a Court is bound to follows a previous decision and Majekodunmi v. Ogunseye (2017) LPELR-42547(CA) on the nature of the Evidence Act and Oath Act were referred to in urging the Court to allow the cross-appeal, in conclusion.
1st and 2nd Respondents’ Submissions:
Citing Oraegbunam v. Chukwuka (2009) LPELR-4796(CA), it is submitted that the Petitioners were allowed to code the identity of their witnesses and that the Tribunal was right to have relied on the Statements on Oath which were coded. Learned Counsel contended that the cases cited by the Cross-Appellants are in applicable and unhelpful to them in the appeal.
The Court is urged to resolve the issue against the Appellants and to dismiss the appeal.
In the Cross-Appellants’ Reply brief, it is said that the case of Oraegbunam v. Chukwu (supra) cited by the Cross-Respondents is not applicable as it was decided on the basis of the 2007 Practice Directions.
RESOLUTION:
The fulcrum of the cross-appeal is that the Statements on Oath of the Petitioners (1st & 2nd Cross Respondents) witnesses which accompanied the petition pursuant to the requirements of Paragraph 4.5(b) of the First Schedule to the Electoral Act, are incompetent because the full names of the said witnesses were not set out or disclosed thereon, contrary to the provisions of Section 13 of the Oath Act. Section 13 of the Oath Act simply provides that: –
“It shall be lawful for any commissioner of oaths, notary public or any other person, authorized by the Act to administer an oath, to take and receive the declaration of any person voluntarily making same before him in the form set out in the First Schedule to this Act.”
These concise and unambiguous provisions permit the taking and receiving the voluntary declaration from any person by an authorized person in the form prescribed and set out in the Act. The provisions allow the authorized person to take and receive a voluntary declaration from another person who appears before him and identifies himself to the satisfaction of the authorized person taking or receiving the declaration. Generally and ordinarily, the full name(s) and identifiable address of the person making the declaration are required to be stated therein as set out in the pro-forma form provided in the First Schedule to the Act. That is the purport of the decisions in Etene v. Nyong and GTB v. Abiodun (both supra) cited by the Learned Counsel for the Cross-Appellants and more, which dealt with Affidavits evidence used in judicial proceedings. For the purpose of admissibility and proof in judicial proceedings, Affidavit evidence is different and distinct from statements on oath intended to be used as proof of the facts or declaration made therein. Whereas an Affidavit which does not or fails to comply with the First Schedule to the Oath Act is incompetent for the purpose of the facts deposed therein; see NNB, Plc. v. I. B. W. Enterprises Nig. Ltd. (1998) 6 NWLR (Pt. 554) 446 @ 454-5; Lonestar Drilling Ltd. Triveni Engr. (1999) 1 NWLR (Pt. 588) 622; Uba v. Societie General Bank (1996) 10 NWLR (Pt. 478) 381 @ 387-8, a Statement of Oath which is adopted by the deponent after being sworn-in in the course of any proceedings would be cured of any defect in form when the declaration was made, by the second (2nd) oath taken before the Court and on the basis of which it would be adopted by the deponent as his evidence-in-chief in the case. Such a Statement on Oath becomes the oral evidence in-chief of the deponent after the adoption before the Court and so competent as evidence which is admissible and to be assessed and evaluated in the determination of the case. See Uduma v. Arunsi (2012) 7 NWLR (Pt 1298) 55;Udeagha v. Omegara (2010) LPELR-3856(CA).
In the case of the Statements on Oath filed by the 1st and 2nd Cross-Respondents along with and in support of their petition, they were competent and admissible in evidence when they were filed by them since they bore marks and alphabets of the particular deponents to indicate their respective makers which satisfied the authorized person taking the declarations at the material time. The practice of coding the full names of witnesses in Statements on Oaths to be used as evidence at trial of election matters/petitions in Nigeria, usually for security reasons to protect their identity, has become recognized, accepted and established by the Elections Tribunals and endorsed by the appellate Courts. See Joseph v. Labour Party (supra). The fact that the INEC Guidelines issued for 2019 elections required political parties to submit lists and names of their agents for the purpose of the elections has nothing to do with the competence of statement on oath of witnesses to be used and relied on by parties in an election petition, so long as the person authorized to take or receive a declaration is satisfied that a declarant is sufficiently identified for the purpose of the declaration.
This position as it is and in addition, Section 4(2) (c) of the Oath Act provides that:
“No irregularity in the form in which an oath or affirmation is administered or taken shall –
(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.”
Expressly, these provisions cure any defect or irregularity in the form, in which an oath or affirmation is administered or taken for the purpose of admissibility in evidence in any proceedings and so save the statements on oath of the witnesses in question even if there was any defect or irregularity in the form in which they were taken or administered.
For that reason, the statements are competent for the purpose of the 1st and 2nd Cross-Respondents’ petition and substantially satisfy the provisions of Paragraph 4(5) (b) of the First Schedule to the Electoral Act.
In the result, there is no merit in the grounds and the issue canvassed in the cross appeal and it is bound to fail.
For being bereft of merit, the cross appeal is hereby dismissed.
With the cross appeal determined and so out of the way, I proceed deal with the merit of the main appeal.
Main Appeal
The grounds of appeal and the issues raised by the Appellants, their primary complaints against the decision of the Tribunal are fully embodied in their Issues 4, 6 and 7. Other complaints in Issues 1, 2, 3 and 5 relate to evaluation of the evidence adduced before the Tribunal. I intend to determine the appeal on the basis of the primary complaints by the Appellants and in doing so, consider the relevant submissions of the parties thereon, along with the complaints on assessment or evaluation of the evidence placed before the Tribunal.
Issue 4: Whether having regard to the pleadings and the totality of evidence led in the Petition, the lower Tribunal was right when it held that the Appellants failed to prove that the cancellation of polling units results for the election of 23rd February, 2019 by the 1st Respondent was unlawful. (Grounds 10, 11, 12, 13, 14, 15, 19).
Applications’ Submissions:
It is submitted that the focal point of the Appellants’ complaint in the petition was that election was concluded in the seventy-one (71) Polling Units (Polling Units) before the 1st Respondent cancelled the results which were announced and that 1st Respondent has no power to do so. It is contended that although the 1st Respondent may have power to cancel an election under some circumstances where the results were not declared, the power to cancel results of an election which were declared resided with the Election Tribunal. Learned Counsel argues that election in a polling unit is concluded upon announcement of the result and entry of the result in Form EC8(A) and that except where there is proof of over voting, the 1st Respondent cannot lawfully cancel such results. According to him, cancellation of results of an election on the ground of violence or any other reason whatsoever has no support in law, since the existence of results negates any allegation, disruption of the election by violence. Reference was made to paragraphs 11, 17, 18, 19, 23, 27 and 28 of the Appellants’ Petition, Paragraphs 18(b), 17 and 24 of the 1st Respondent’s reply 12, 20, 21, 28 and 34(a) of the 2nd and 3rd Respondents’ Joint Reply to the Petition on the admission of the cancellation of the results by the 1st Respondent.
The evidence of RW3 and the 2nd Respondent, as RW18, was also cited on the position and it was pointed out that the Tribunal acknowledged that the parties admitted the cancellation of the results, in its judgement.
Learned Counsel argues that the power to cancel the result of an election or the election at the poling units where there was no result, is vested in the Presiding Officer (P/O) and that no other officer of the 1st Respondent, particularly the Electoral Officer (EO) or the Returning Officer (RO), has the competence to cancel such results, on the authority of Yardua v. Yandoma (2014) LPELR-24217(SC), 71-2F-G; Ikpeazu v. Otti (2016) LPELR-40055(SC), 31-33 and Doma v. INEC (2012) 13 NWLR (Pt. 1297) 328. He said the Tribunal misconceived the Appellants’ case by holding that the Appellants failed to rebut the presumption enjoyed by the cancellation of the result since their case was that the admitted cancellation was unlawful. That the Appellants did not say that there was no cancellation for the burden of proving same to be placed on them and for the need to call polling unit agents to do so.
It is the case of the Appellants that the burden was on the 1st Respondent to prove that the cancellation of the results for the 71 Polling Units in question, allegedly based on over voting, violence and non-use of the Card-Reader, was lawful and that it failed to do so as the Forms EC40G tendered in evidence as Exhibits R3-R10 did not emanate from the Presiding Officers and their makers; Ward Collation Officers (WCO) were not called to testify. Counsel contends that in the absence of the reports from the presiding officers for/on the cancellation of the results at their polling units, Exhibits R3-R10 are an afterthought and suborned documents which are inadmissible and unreliable for being documentary hearsay. Okereke v. Umahi (2016) LPELR-40035(SC) was cited for the argument and in further submission, Learned Counsel said the 1st Respondent’s reasons for the cancellation were not specific on the particular polling units where over voting, violence or non-use of the Card-Reader occurred to warrant the cancellation, because, according to him, even the presiding officer lacks the power to cancel result of an election except on ground of over voting, relying on Onuoha v. Akpulonu (2008) LPELR-4788. Section 53 of the Electoral Act, 2010 was referred to on what constitutes over voting at an election and it is argued the respondents did not adduce any evidence of over voting or violence at the polling units in question. Furthermore, it is the case of the Appellants that the 1st Respondent cannot cancel result of an election for non use of card reader since by the provision of Section 49 of the Electoral Act, accreditation is lawful when done with the Register of voters and any Guidelines Issued by the 1st Respondent which provide to the contrary will be in consistent with the Act, and on the authority ofNyesom v. Peterside (20016) 7 NWLR (Pt. 1512) 452, to be disregarded. In addition, it is argued that the 1st Respondent was bound to prove that the number of registered voters in the cancelled results was higher than the margin of victory of the 1st Appellant to warrant the conclusion that the election was inconclusive and the holding of a re-run election.
1st Respondent’s Submissions:
Although the 1st Respondent’s issues set out earlier do not include the Appellants’ Issue 4 on the cancellation of the results in question, it is argued as Issue Three (3) at paragraph 4 of the 1st Respondent’s brief. The submissions are to the effect that both parties and the Court are bound by the pleadings and that any evidence adduced contrary to the pleadings, goes to no issue, on the authority of, inter alia, Atanda v. Hon. Commissioner for Lands, Kwara State (2017) LPELR-42346 (SC).
It is contended that the evidence given by the Appellants that there were no results in 19 Polling Units and that the results in 52 Polling Units were cancelled for violence and over voting goes to no issue for being contrary to their pleadings. Also, that the Appellants only called 32 Polling Unit Agents as witnesses to prove the allegation of unlawfulness of the cancellation of results in the 71 Poling Units thereby abandoning their pleadings in respect of the other 39 Polling Units, relying on Akinbade v. Babatunde (2017) LPELR-43463(SC) and Gundiri v. Nyako (2014) 2 NWLR (Pt. 391) 211 @ 245. Section 168 (1) of the Evidence Act on the presumption of regularity of official acts was referred to and it is contended that the act of 1st Respondent in cancelling results for violence and over voting, enjoy the presumption of regularity until the contrary is proved by the Appellants. Shuluwa v. Aye (2015) LPELR-40476(CA) and Emmanuel v. Umana (2016) LPELR-40037(SC) were cited in support of the submission.
2nd and 3rd Respondents’ Submission:
The same submissions as those of the 1st Respondent are made on the boundless of pleadings and the effect of evidence not supported by the pleadings in respect of the 19 Polling Units and 52 Polling Units respectively. In fact, the submissions of the 1st Respondent on the issue are merely copied and repeated at pages 14-18 of the 2nd and 3rd Respondents’’ brief and it is further argued that the margin of votes between the 1st Appellant and 2nd Respondent after the cancellation was far less than the number of the registered voters in the 19 polling units where there were no results and the election cancelled. According to Counsel, there was therefore the need to conduct the re-run or supplementary election in order to determine the candidate with the highest number of valid votes to be returned having regard to the admissible evidence placed before the Tribunal, that it was the 2nd Respondent and not the 1st Appellant that had the majority lawful votes and was entitled to have been declared and returned as the winner.
In the Appellants’ Reply brief, to the 1st Respondent’s brief, the arguments of the Appellants under their Issue 4, reviewed above, were repeated in response to the 1st Respondent’s submissions.
Resolution:
From the cases put forward by the parties before the Tribunal in their respective pleadings, election into the House of Representatives for the Ajeromi/Ifelodun Federal Constituency was conducted by the 1st Respondent on the 23rd February, 2019 and at the end of the election, results from Seventy-One (71) Polling Units across Eight (8) Wards of the Constituency, were cancelled by the officers of the 1st Respondent who declared the election inconclusive on the ground that the margin of victory between the 1st Appellant and the 2nd Respondent was less than the number of registered voters in the polling units where the results were cancelled. A re-run election in the affected poling units was scheduled, but later re-scheduled and conducted on the 27th April, 2019.
The reasons given by the 1st Respondent for the cancellation of the results in the 71 Polling Units are contained in Paragraph 8 (a), (b) and (c) of the 1st Respondent’s Reply to the Petition, dated and filed on the 10th June, 2019 which says that: –
“(a) It conducted the Ajeromi-Ifelodun Federal Constituency election between the 1st petitioner, the 2nd Respondent and a host of other candidates which were marred by violence, voters intimidation and over-voting as report by the collation officers at the Eight wards where results were affected to the Local Government Electoral Officer of the 1st Respondent, Mr. Adeshola Adelaja following reports from presiding officers of the various polling units affected.
(b) The Eight Wards affected by the polling Units results cancelled are Awodi-Ora Ward Code 02, Willmer Ward Cord 03, Olodi Ward Code o4, Tolu Ward Code 05, Ojo Road Ward Code 07, Alaba Road Ward Code 09, Mosafejo Ward Code 10 and Temidire II Ward Code 11. The number of Polling Unit affected in this Wars are 71 with the total number of registered voters as 43,600 which is far above the difference between the 1st petitioner and the 2nd Respondent being a total of 3224 votes because while the 1st Petitioner scored 31,982 votes by the election of 23rd February 2019, the 2nd Respondent scored 28,759 votes.
(c) That the report of violence, voters intimidation non usage of Card Readers and over-voting affected 91 Polling Units in the eight Wards mentioned above were reported by the various presiding officials/officers posted by the 1st Respondent in the various polling units affected to the Ward. Collation officers who in turn reported to the Local government Collation Officer/Electoral Officer. We shall place reliance on INEC Forms 40G and FORMS EC8A(II) EC8B(II) AND EC8C(II) including the Ballot papers.”
As can easily be discerned, the reasons for the cancellation of the results from the Polling Units of the Ajeromi-Ifelodun Federal Constituency (which comprises the Local Government Area) were: –
(a) that the election was marred by violence;
(b) intimidation of voters; and
(c) over voting.
The pith of the complaint by the Appellants is that the 1st Respondent lacks the power or competence to cancel results of an election for any reason except where there was proof of over voting. It is therefore the Appellants who positively asserted the lack or want of power or authority on the part of the 1st Respondent to do what it had done and on that basis, sought from the Tribunal, judgement in their favour to be declared winners of the inconclusive election conducted on the 23rd February, 2019. The law, by dint of the provisions of Section 131, 132 and 133(1) of the Evidence Act, 2011, places the legal and evidential burden on the Appellants, who desired the Tribunal to give them judgement based on the results of the inconclusive election conducted on the 23rd February, 2019 in the constituency, including the results from the 71 Polling Units cancelled by the 1st Respondent, to prove that the 1st Respondent in fact and law, lacks the requisite power and authority to cancel the results in question. See also Adegoke v. Adibi (1992) 6 SCNJ, 136; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182; Jiaza v. Bamgbose (1999) 5 SC (Pt. 1) 58; Mogaji v. Odofin (1978) 4 SC, 91; Egharevba v. Osagie (2009) 19 NWLR (Pt. 1173) 299. Election Petitions, being civil in nature, the burden of proof is on the balance of probabilities or preponderance of evidence and until credible and sufficient evidence is led or adduced to satisfy the Court of the standard, the burden would not be discharged and the assertion will fail. See Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419; Olusanya v. Osinleye (2013) NWLR (Pt. 1367) 148; Reptico S. A. Geneva v. Afribank Plc (2013) 14 NWLR (Pt. 1373) 172; Purification Technique Ltd. v. Jubril (2012) 18 NWLR (Pt. 133) 109; Amadi v. Orji (2016) 9 NWLR (Pt. 1516) 154.
Undoubtedly, the act of cancelling the results from the 71 Polling Units by officers of the 1st Respondent at the Local Government Area Collation Centre was an official act in the ordinary discharge of their official functions and duty, and so falls within the purview of the provisions of Section 168(1) of the Evidence Act, 2011 to enjoy, the presumption of regularity until the contrary is proved. Until the Appellants adduced credible and sufficient evidence to satisfactorily rebut the presumption of regularity in the official act of the 1st Respondent’s officers, the cancellation of the results in the affected polling units is deemed and presumed regular and lawful.
What evidence did the Appellants place before the Tribunal that the 1st Respondent lacked the power and authority to cancel the results in the affected 71 polling units so as to make the cancellation unlawful and invalid? Learned Counsel for the Appellants has argued that the evidence of their 32 Polling Agents who testified as PW1-PW32 at the trial showed that the election of 23rd February 2019 in the Constituency was peaceful and that there was no over voting to justify the cancellation of the affected results. Apparently, the evidence of these witnesses, who were at their different polling units on the date of the election, was in respect of only Thirty-Two (32) of the 71 Polling Units where the results were cancelled; including results where the 2nd and 3rd Respondents had majority of the votes cast as shown in the evidence of PW2 (PA33), PW3, PW4 (PW15), PW5 (PW31), PW8 (PA20), PW20 (PW 41), PW22 (PW26), PW24 (PA37), PW25 (PA21), PW26 (PW12), PW28 (PA29), PW29, (PW26), PW30 (PW32) and PW2 (PA13); i.e., fourteen (14) out of the 32 Polling Units covered by the evidence of the witnesses. The evidence of these witnesses falls far short of the credible and sufficient evidence to satisfactorily show or prove, on the balance of probabilities, that there was no violence, voter intimidation and over voting at the 71 Polling Units from which the results were cancelled by the 1st Respondent in order to rebut the presumption that the act of the cancellation was regular. For the Appellants to effectively discharge the burden of rebutting the presumption of regularity in respect of the cancellation and the reasons given by the 1st Respondent, they needed to call eye-witnesses of persons who were at the affected 71 Polling Units at the material time of the election to give first-hand account of what actually happened or did not happened in respect of the conduct of the election. The evidence of a few polling unit agents out of the 71 Polling Units affected by the cancellation will not suffice.
In addition, having calmly read all the statements on Oath of the PW1-32, one cannot but agree with the Tribunal that they do not reasonably represent personal account of each of the witnesses, but rather prepared statements made generally which they individually claimed to have signed without their known and identifiable name or signatures. Except for the number allocated to them each, as polling agents, the polling units assigned/ascribed to them and the scores stated for the polling units, all other material parts of the Statements on Oath, are copies of each other to render them a tale retorted. It is very unusual and incredible for Thirty-two (32) people to give exactly the same narration; word for word, of events they witnessed at different places, months thereafter. In the case ofQueen v. Adelabu (1955-6) WRNLR (Pt. III) 112, it was stated that the absence of any discrepancies in the statements or evidence of many witnesses even on the same subject is the usual accompaniment of a concocted story. Imperfections and different personal expressions in human reflections are quite normal.
The above apart, the 1st Respondent in the Exhibits R3-R10 which contain reports from Presiding Officers (PO) of what transpired or happened at the polling units during the period of election, show that there was violence, intimidation of voters and over voting at the 71 Polling Units affected by the cancellation of the results and it was on the basis of the reports that results were eventually cancelled by the Returning Officer of the Constituency. Learned Counsel for the Appellants has argued that Exhibits R3-R10 were inadmissible because they were not frontloaded in line with the provisions of Paragraph 12(3) of the First Schedule to the Electoral Act. However, even though the word “shall” is used in the provisions, the omission to accompany a Reply with copies of documentary evidence, does not render documents which have been clearly, specifically and distinctly pleaded and to be relied on by a Respondent in the Reply, inadmissible in evidence. The established position of the law on admissibility of documents in evidence is, generally, that such documents must be pleaded by the party seeking to make use of them as evidence at a trial. This is an additional practice requirement for admissibility of documents in evidence after the statutory conditions set out in Sections 1 and 83 of the Evidence Act, 2011, which applies to Election Petitions. This Court, in the case of A.N.P.P. v. Usman (2008) LPELR-3786, citing Ojukwu v. Obasanjo (2004) 1 EPR, 626 @ 673, restated the law that:-
“Documentary evidence is one of the vital methods by which the Petitioner is required to substantiate his allegation in this petition. The general rule that governs the admissibility of documentary evidence is applicable to documents to be tendered in Election Petitions.”
In Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250, (1999) 12 SCNJ 259 @ 275, Achike, JSC, laid down the main criteria governing the admissibility of a document in evidence as follows: –
(a) Is the document pleaded?
(b) Is it relevant to the inquiry being tried by the Court; and
(c) Is it admissible in law?
See also Asuquo v. Eyo (13) LPELR-20199(CA); ANPP v. PDP (2006) 31 WRN, 37; Oba Oyediran of Igbonla v. Oba Alebiosu II (1992) 1 NWLR (Pt. 249) 550; Torti v. Ukpabi (1984) 1 SCNLR, 214, (1984) 1 SCNR, 214, (1984) 1 SC, 370; Dumiya v. Jimoh (1994) 3 NWLR (Pt. 334) 609; Ogbunyiya v. Okudo(1979)5-9, SC, 33.
The underlining principle in the requirements of the law on the admissibility of a document intended to be used as evidence in judicial proceedings, is to give sufficient notice and adequate opportunity to the other party to a case to know the nature of the evidence to be tendered by his opponent to enable him prepare to meet the case against him. It is to avoid the element of surprise by ambush in the trial of the case. This is the purport of the provision of Paragraph 12(3) of the First Schedule to the Electoral Act, 2010 in the requirements that copies of documentary evidence shall accompany the Reply of a Respondent to an election petition. It is primarily meant to enable a Petitioner know the nature of documentary evidence to be relied on by the Respondent in defence of the Petition brought by the Petitioner so as to enable him react or respond to the defence, as may be necessary.
See A.P.G.A v. Al-Makura (2016) 5 NWLR (Pt. 1505) 316 and PDP v. Edem (2016) 12 NWLR (Pt. 1525) 106.
The specific pleading of document by title, description or names, to be relied on by a Respondent in his Reply to the petition which was duly served on a Petitioner in line with the requirements of the provisions of the First Schedule to the Electoral Act, substantially and adequately meets and satisfies the primary purport or essence of the provisions of Paragraph 12(3) of the Schedule, for the purpose of the admissibility of such documents.
In the circumstances, the Tribunal is right on the admissibility of Exhibits R3-R10 and that the documents are admissible in law, relying on Chime v. Onyia (2009) 2 NWLR (Pt. 1124). In addition, I endorse the position of the Tribunal that since the Petitioners were granted an adjournment to read the documents after they were tendered by the 1st Respondent, the Petitioners had reasonable notice of, and adequate opportunity to know the nature of evidence contained in the documents to enable them react or respond thereto in addition to the pleadings on the documents. Again, the purport of the provisions of Paragraph 12(3) of the First Schedule to the Electoral Act has been substantially achieved.
Furthermore, it has been argued that Exhibits R3-R10 are documentary hearsay and so inadmissible in evidence. Restating the known position of the law, hearsay evidence is not admissible as proof of the facts stated therein. In simple terms, hearsay evidence is a/the statement by a person; written or oral, who is not called as a witness in a trial, given by a witness as proof of the facts contained therein. It arises where a witness in a trial and in his testimony, repeats a statement made by another person who is not called as a witness in the case, in order to prove the truth of the facts stated therein. Sections 37 and 38 of the Evidence Act, 2011, defines and render such type of evidence inadmissible, respectively by providing that: –
“37. Hearsay means a statement-
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is no admissible under any provision of this Bill, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
38. hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”
The Exhibits R3-R10, were tendered through RW1; the 1st Respondent’s Collation Officer for the election conducted in the Ajeromi/Ifelodun Federal Constituency who was subpoened to produce them, along with other documents used during the election. The witness generated the information he used to prepare the Exhibits from reports received by him from Ward Collation Officers, who, in turn, used the reports from the returning Officers of the affected polling units to base their reports to the Witness, all of which are attached to the Exhibits R3-R10.
These exhibits were made by RW1 in the discharge and performance of his official duty as the collation officer as provided for in Paragraph 38 of the 1st Respondent’s Regulations and Guidelines for the Conduct of Elections, are not documentary hearsay, but admissible by virtue of the provisions of Section 52 of the Evidence Act, 2011 which are as follows: – “An entry in any public or other official books, register or record, including electronic I record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in such book, register or record is kept, is itself admissible.”
In the above premises, the Tribunal is right to have admitted the Exhibits R3-R10 in evidence, which not being effectively challenged, remain credible and deserving of probative value in proof of the reasons for the cancellation of the results in the affected polling units. Being documentary, the Exhibits represent the best evidence which, attract more credibility and weight than the suborned ipse dixit of all the PW1-PW32 on the issue of the cancellation and reasons given by the 1st Respondent’s officials for it. See Agbereh v. Mimra (2008) 2 NWLR (Pt. 1071) 378; Omiyale v. Macaulay (2009) 7 NWLR (Pt. 1141) 597; Anyanwu v. Uzowuaka(2009) 13 NWLR (Pt. 1159) 445; Salami v. Savannah Bank (1990) 2 NWLR (Pt. 130) 106; Ogu v. Manid T&M Coop Society (2010) LPELR-4690(CA); Kimdey v. Mil. Gov., Gongola State (1988) 3 SCNJ, 28; Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591.
Perhaps, I should say that Learned Counsel for the Appellants is right on the authority of the cases of Yardua v. Yandoma; Ikpeazu v. Otti; Doma v. INEC; Onuoha v. Akpulonu (all supra) among others, that only a presiding officer has the power to cancel result of an election at the polling unit and that was what happened in respect of the 71 Polling Units results cancelled in the election of 23rd February, 2019. Exhibits R3-R10, once more, are products of the reports of the violence and over voting at the said polling units from the presiding officers to the Ward Collation officers who, in turn, reported to the RW1 in the manner and forms provided for pursuant to Paragraph 38(1) of the Regulations and Guidelines of the 1st Respondent on the conduct of the election. RW1, as required of him under Paragraph 38(viii) and (x) of the Regulations and Guidelines, considered the reports made to him in completing and making Exhibits R3-10. So the foundation of Exhibits R3-10 were the reports of the presiding officers at the polling units and being official records made in the ordinary discharge of the function, duties and powers of the officials of the 1st Respondent on the conduct of the election, do not need to be produced or that the presiding officers be called to testify on them. It was sufficient that reports of the collection officers which were not impugned or discredited were attached to Exhibits R3-10 to show and establish their source.
Learned counsel for the Appellants has also argued that the 1st Respondent can only cancel result of an election where there is proof of over voting, citing Section 153 of the Electoral Act. All that needs be said on the point is that over-voting is one of the reasons given by the 1st Respondent (who acts through its officials/officers appointed at and for all stages of an election) for the cancellation of some of the results in the 71 polling units based on the reports of the presiding officers at the polling units made pursuant to paragraph 26 of the regulation and so the cancellation for that reason is grounded directly, in the provisions of the Electoral Act. However, I wish to point out that the Electoral Act did not say that results at an election can only be cancelled on the basis of over voting as provided for in Section 53, which primarily, deals with multiple voting for different candidates or a candidate at any/one election in Subsection (1) which precedes Subsection (2).
As a substantive legislation, it is a practical impossibility for the Electoral Act to provide for every conceivable situations or circumstances in the conduct of an election that may arise and face the 1st Respondent and the appropriate action to be taken promptly in reaction thereto. That is why in Section 153 of the Act, it provides that: –
“The commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of given effect to the provisions of this Act and for its administration thereof.”
Then, Section 73 of the Act states that: –
“73. Step-by-step recording of poll
Subject to the provisions of this Act, the Commission shall issue and publish, in the Gazette, guidelines for the elections which shall make provisions, among other things, for the step by step recording of the poll in the electoral forms as may be prescribed beginning from the polling unit to the last collation centre for the ward or constituency where the result of the election shall be declared.”
In the exercise of the power and authority vested in it by and in the above provisions, the 1st Respondent, for the purpose of the 2019 General Elections in the Country, issued the Regulations and Guidelines mentioned earlier, as well as, the Manual For Election Officials, 2019, in order to give effect to the provisions of the Act and administration thereof. These Regulations, Guidelines and Manuals issued pursuant to the Electoral Act by the 1st Respondent constitute subsidiary legislations which draw their efficacy and potency from the substantive Act. SeeCPC v. INEC (2011) 18 NWLR (Pt. 1279) 493 @ 542 and Faleke v. INEC (2016) 18 NWLR (Pt. 1543) @ 118, 156 and 120-1 where, Kekere-Ekun, JSC, in the lead judgment, stated that: –
“Having discovered electoral malpractices in 91 polling units in the State, it was proper for the 1st Respondent to consult and apply the provisions of its Manual to determine the next course of action in the circumstances. I do not agree with Chief Olanipekun, SAN, with due respect, that resort to its manual in the circumstances amounted to a flagrant disregard of the supremacy of the constitutional provisions as contained in the Section 179(2).”
The fact that the Electoral Act did not make specific provisions for cancellation of results for violence and other valid and cogent reasons that may arise or confront it in the process of conducting an election, justifies the issuance of Regulations, Guidelines and Manuals from time to time, to provide for necessary and appropriate steps and action to be taken by the officials of the 1st Respondent to deal with the peculiar situations and circumstances.
The provisions of such Regulations, Guidelines and Manuals issued for the primary purpose of giving effect to the provisions of the Act and its administration thereof by the 1st Respondent, simply complement and facilitate the effective application of the purport of the Act which is the conduct of democratic, free and fair elections in the Country.
This is explicitly stated in the Regulations and Guidelines for the Conduct of Elections, signed on the 12th of January, 2019 by the Chairman of the 1st Respondent, as follows:-
“These Regulations and Guidelines complement the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended).”
It is therefore a misconception to argue that because the Regulations provide for step by step practical procedures to be followed and stipulate actions to be taken by the 1st Respondent in the process of an election, other than or in addition to those prescribed by the Act, the Regulations are in conflict or inconsistent with the provisions of the Act.
The Regulations, Guidelines and Manual are not inconsistent, in conflict or contravention of the Electoral Act, simply because they provide for situations, circumstances, steps or actions to be taken by the 1st Respondent in the conduct of an election, which were not provided for in the Act itself. A conflict, inconsistency or contravention in legislations will only arise where two (2) provisions are made in separate statutes on the same issue which are directly inconsistent, in conflict and cannot co-exist at the same time for being completely opposite, in collision with each other and in contradiction. See I.T.F. v. Nigerian Railway Corporation (2007) 3 NWLR (Pt. 1020) 28, Ogoala v. State (1991) 3 SCNJ, 61; (1991) 3 SC, 80, Ikemson v. State (1989) 1 NWLR (Pt. 110) 455, N.D.C. Limited v. Adamawa State Water Board (2008) 2-3 SC (Pt. 11) 202. That is not the position between the provisions of the Election Act, particularly Section 53, and the provisions of the 1st Respondent’s Regulations, Guidelines and Manual on the power of the 1st Respondent to cancel election results since Section 53 only provides for reasons of over voting while pursuant to the Act, the Regulations, Guidelines and Manual provide for other and further reasons for which the 1st Respondent is vested with the power and authority to cancel election results. There is therefore no conflict or inconsistency between the Act and the Regulations, Guidelines and Manual on the 1st Respondent’s power and authority to cancel election results for reasons stipulated therein.
Learned Counsel for the Appellant has further argued under the issue that the Tribunal was wrong not to have been bound by the judgment of the Federal Capital Territory, High Court in Suit No. FCT/HC/CV/1252/19 delivered on 4th April, 2019, admitted at the trial as Exhibit P. 177, as an extant decision of a Court of competent jurisdiction. I have read the said Exhibit P. 177 and what was decided in the judgment was that it was wrong for the 1st Respondent not to have announced the results in the polling units where the election/results were not cancelled after the cancellation. The judgment did not nullify or set aside the cancellation of the results in the affected 71 polling units in the Constituency and the 1st Respondent’s decision to conduct a re-run election in the polling units.
This was what the FCT High Court said in the judgment:-
“In the instance case, the result was not even announced. This Honourable Court will never stop the 1st Respondent from performing its constitutional responsibilities, at the same time this Honourable Court will not condone impunity. For the 1st Respondent to know there is need for re-run, it means there is result somewhere which is known to the 1st Respondent. In a democratic setting like ours, there is need for the public to also know that result. From the documents before this Honourable Court, the affidavit and annexures, it is in dispute that the Respondent fix in rerun in some polling units of Ajeromi-Ifelodun Federal Constituency of Lagos without announcing the result. I am of the strong view that commonsense and transparency dictate that the result be announced.”
Admittedly after the judgment, the 1st Respondent announced the scores of the candidates at the election as directed therein, on the 17th April, 2019, as a consequence of which the re-run election initially scheduled by the 1st Respondent for 9th March, 2019, was re-scheduled and conducted on the 27th April, 2019.
In the above circumstances, the Exhibit P177 had no effect on the cancellation of the results and the conduct of the re-run election in the 71 polling units of the constituency to have been acted upon by the Tribunal to return the 1st Appellant as the winner of the election on the basis of the results announced for the 23rd February, 2019 Election. For this reason the Tribunal was right in its decision not to have been bound by Exhibit P177 for the purpose of declaring and returning the 1st Appellant as the winner of the election in the constituency on the basis of the results announced for the 23rd February, 2019 election, only.
In the result, I find no merit in the arguments of the Appellants on their issue 4 which is hereby resolved against them.
Having resolved issue 4 against the Appellant’s, I now proceed to consider their issues 6 and 7 as stated at the beginning of this judgment, being the germane and crucial issues of complaints in the appeal.
Issue 6: Whether the lower Tribunal was right when it held that the Appellants did not establish acts of non-compliance and corrupt practices against the rerun election of 27th April, 2019. (Grounds 21 and 22).
Appellants’ Submissions:
Learned Counsel for the Appellants submits that the re-run election was characterized by acts non-compliance with the provisions of the Electoral Act and corrupt practices by the 2nd & 3rd Respondents. According to him, the Appellants’ agents were harassed, intimidated, assaulted and prevented from participating in the election, that there was voter intimidation, multiple thumb printing of ballot papers, allotment of votes to parties with connivance of the 1st Respondent’s officials and over voting without due accreditation. Learned Counsel says that RW2 had testified that there-run election was conducted with the Card Reader and that the result of the only two (2) pulling units where the Card Reader did not work were not countenanced in the collation of the final result. He then points out that in the results declared by the 1st Respondent for the re-run election, 575 votes were allocated to the 1st Appellant while 7,957 votes were allotted to the 2nd and 3rd Respondents whereas by Exhibit P182, which was the Card Reader Report for the re-run election certified at the Headquarters of the 1st respondent, the indicated number of accredited voters is shown to be 6,082, which was confirmed by RW2 under cross-examination. He contends that it is clear that votes allotted to candidates at the election are in excess of the number of accreditation done with the Card Reader and so the re-run election is liable to be set aside. It is the case of Counsel that the Tribunal wrongly refused to accord probative value to Exhibit P182 on the ground that it was dumped on it, but which was demonstrated through RW2 who merely said it did not emanate from the Lagos Office of the 1st Respondent.
1st Respondent’s Submissions:
The Appellants’ Issue 6 is argued in the 1st Respondent’s brief as issue 4 even though only three (3) issues are said to arise for determination in the brief, as stated earlier.
The issue is indicated in the brief to have been distilled from some of grounds of appeal on which issue 3 was predicated; thereby proliferating issues from the said grounds. Since it is also based on other grounds of the appeal, I would consider the arguments thereon.
The relevant submissions on the issue are to the effect that the Appellants failed to substantiate the criminal allegations of corrupt practices as required by the law; beyond reasonable doubt and non-compliance; on the balance of probabilities or preponderance of evidence. Sections 131, 132 and 132(2) of the Evidence Act and, inter alia, the cases of Olaniyan v. State (2018) 10 NWLR (Pt. 1626) 1 @ 24, Dantiye v. Kanya (2009) 4 NWLR (Pt. 1130) 13 @ 33, and Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1 @ 143-4, Ikpeazu v. Otti (supra) and Andrew v. INEC (2018) 9 NWLR (Pt. 162) 507, were cited for the submission and it argued that since the Appellants only called 32 witnesses in respect of the re-run election in 71 Polling Units, their avernments on non-compliance and corrupt practices in respect of 39 Polling Units on which no evidence was given, were deemed abandoned, on the authority of Nzeribe v. Dave Engineering Company Limited (1994) 9 SCNJ 101, Akingboye v. Salisu (1999) 7 NWLR and CAN v. Nyako (2013) ALL FWLR (Pt. 686) 424 @ 1577-8, (Pt. 611) 434 @ 453 among other cases.
It is also submitted that the copies of documents tendered by the Appellants through their witnesses who were not the makers thereof were of no value since they could only be tendered by the makers or must be certified, being public documents. Sections 83 and 104 of the Evidence Act, Tabik Investment Limited v. GTB Plc (2011) 17 NWLR (Pt. 1276) 240, Enwerem v. Abubakar (2011) 17 NWLR (Pt. 1276) 240, Enwerem v. Abubakar (2016) LPELR-40369 (CA) and Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 @ 230 were referred to.
2nd and 3rd Respondents’ Submissions:
The issue is argued as Issue 5 and the submissions are the same as those of the 1st Respondent.
There are no submissions in the Appellants’ Reply brief to the 1st Respondent’s brief on the issue.
Resolution:
The law is now firmly settled that a petitioner in an election petition challenging the declaration and return of a winner of the election on ground of non-compliance with the provisions of the Electoral Act, Regulations, Guidelines and Manual, for the conduct of the election has the duty and legal burden to specify the nature and particulars of the non-compliance(s) alleged and produce credible and sufficient evidence to prove same on the balance of probabilities.
In Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452 @ 520-1, Kekere-Ekun, JSC, stated that: –
“Where a petitioner complains of non-compliance with the provisions of the Act, he has an onerous task, for he must prove it polling unit by polling unit, ward by ward and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with as a result of non-compliance e.g. Forms EL8A, election materials not signed/stamped by Presiding Officers. It is only then that the respondents are to lead evidence in rebuttal. See Elechi v. Ucha (2012) 13 NWLR (pt. 1317) 330 @ 359, E-G.”
In addition, Section 139(1) of the Electoral Act, provides that: –
“139(1) An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
So, in addition to the evidential burden of producing credible and sufficient evidence to prove the allegations/assertions/ground of non-compliance with the provisions of the Electoral Act in the conduct of an election, by these provisions, a petitioner is statutorily required to further show that the non-compliance even if proved as required, did affect the overall and final result of the election as declared by the Electoral Umpire, if the election was to be properly invalidated by the reason of such non-compliance. See Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 @ 453, (2009) 9 SCM, 1 CPC v. INEC (2012) 1 NWLR (Pt. 1250) 106, (2012) 2-3 SC (Reprint) 1 @ 38, Oke v. Mimiko (2014) 1 NWLR (Pt. 1388) 332, Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255, 300-1. The burden imposed on a petitioner who alleges and relies on ground of non-compliance with the provisions of the Electoral Act in the conduct of an election to challenge/question the declaration and return of the winner, is two (2) fold and indeed onerous; practically and in law. He must, satisfactorily prove and show by way of credible and sufficient evidence, the following: – (1) The non-compliance/s alleged/complained of in the election, and
(2) In addition, that the proved non-compliance/s substantially affected the over-all results of the election as declared by INEC. The standard of proof here is by preponderance of evidence or balance of probabilities and until it is satisfactorily discharged, the election in question shall not be liable to be invalidated on ground of non-compliance. See PDP v. INEC (2014) (Pt. 1437) 525 @ 367-8, Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207, Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 @ 358.
In the Appellants case, the allegations of non-compliance is in general terms in respect of the re-run election in all the affected 71 polling units, but only adduced evidence of 32 polling unit agents in the attempt to prove it, leaving out 39 polling units without any evidence, contrary to the requirement of the law as stated in Nyesom v. Peterside (supra) that non-compliance must be proved polling unit by polling unit, ward by ward, showing figures that the adverse party was credited with as result of the non-compliance. Apparently, the evidence placed before the Tribunal by the Appellants on the allegations of non-compliance during the re-run election of 27th April, 2019 is far below the required evidence sufficient to discharge the burden on the balance of probabilities.
On the allegation of corrupt practices in the conduct of the re-run election, which was made ground III of the petitioner, like the ones on non-compliance, was general and based on the pleadings in paragraphs 25, 27(D), 43 and 44 of the Petition which say that: –
5. The purported Re-run Election of 27th April, 2019 was seriously marred by instances of election violence and substantial non-compliance, multiple thumb printing, unlawful allocation of votes, violence, intimidation and harassment of voters, preventing lawful voters and members of the Petitioners and other parties except those of the 2nd and 3rd Respondents access to the Polling Units by the 2nd and 3rd Respondents, with the active connivance of the 1st Respondent. In spite of all these, the 1st Respondent still declared the 3rd Respondent as winner of the election.
7. Your Petitioners present this Petition in the following manner. That the Return election of the 27th day of April, 209 was marred by diverse acts of substantial non-compliance with the provisions of the Election Act 2010 (as amended) as well as the extant Guidelines and Manual for the Election. Further, that the Return election was marred by corrupt practices and therefore was not conducted in a free and fair environment which renders the election not credible and thus invalid, null and void.
43. Your Petitioners appointed Polling Agents for the election in the Ajeromi-Ifelodun Federal Constituency of Lagos State held on 23rd February, 2019 were retained for the Return Election of 27th April, 2019. These Agents were detailed to represent the Petitioners at all their respective polling units and stations but on the day of the Return election of 27th April, 2019, at the 71 polling units listed above, the Petitioners’ Agents were harassed, intimidated, assaulted and prevented from participating in the said Rerun election and fully report to the Petitioners.
44. There was proper election on 27th April, 2019 as agents and members of 3rd Respondent (APC) harassed and chased away PDP members and non-indigence voters whom they believed came to vote for the candidate of PDP who is a non-indigene. The agents and members of APC engaged in multiple thumb printing of ballot papers and intimidation of voters and at the end of the day, allotted votes to the parties in connivance with the INEC officials. There was no due accreditation or voting in the election of 27th April, 2019. The election of 27th April, 2019 in those 71 polling units were equally marred by over voting.”
The evidence of the 32 witnesses who were supposed to be on the ground at the polling units during the re-run election did not give specific and cogent evidence of any particular act of corrupt practices except to merely state chorously, that each of them was chased away by agents of the 2nd and 3rd Respondents from the polling units on the date of the election. There was total want/lack of specific and credible evidence from the Appellants to prove any specific acts of corrupt practices alleged in respect of the re-run election of 27th April, 2019, beyond reasonable doubt as required by the law. It is not enough for the Appellants to merely throw out such serious allegations of a criminal nature only to call a few witnesses who simply gave general evidence in respect of some of the 71 polling units where they claimed they were intimidated and chased away from the polling units.
In the case of Orji v. Ohuabunwa (2006) LPELR-7656 (CA), it was held that: –
“The allegation of commission of corrupt practices raised in paragraph 6 of the appellants’ petition are criminal acts and if proved or established, they constitute offences against the Electoral Act. The appellant then ought to have known that criminal offences require proof beyond reasonable doubt. This is the undisputable position in Section 138(1) of the Evidence Act,1990. The appellant merely called his witnesses to establish that criminal acts were committed in ten wards on the Election Day but the requirement is proof beyond reasonable doubt, not mere statement of commission of crime. See Edet v. Eyo (1999) 6 NWLR (Pt. 605) 18; Kalgo v. Kalgo (1999) 8 NWLR (Pt. 562) 425; Balami v. Bwala (1993) 1 NWLR (Pt. 267) 55.”
In addition, Peter-Odili, JSC in Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84 @ 139, restated the law that:-
“when the ground for challenging the return of a candidate in an election petition is by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, the petitioner has the duty to prove: –
(a) That the corrupt practice or non-compliance took place; and
(b) That the corrupt practice or non-compliance substantially affected the result of the election. See Section 138(1)(b) and 139(1) of the Electoral Act, 2010 (as amended); Awolowo v. Shagari (1997) ALL NLR, 120; Ibrahim v. Shagari (1983) 2 SCNJ, 176, Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241, etc.”
The law is also known for some time now, and so it trite, that to effectively discharge the burden of proof of corrupt practice, the Petitioner must establish by cogent and credible evidence that the Respondent/s committed the acts either personally or aided, abetted, counselled or procured the commission of the acts.
See Oyegun v. Igbinedion (1992) 3 NWLR (Pt. 231) 708; Adeola v. Owoade (1999) 9 NWLR (Pt. 614) 30; Hali v. Atiku (1999) 5 NWLR (Pt. 602) 186 @ 189, Offodile v. Chinwuba (1993) 1 NWLR (Pt. 268) @ 154, Wali v. Bafarawa (2005) ALLFWLR (Pt. 249) 1863 @ 1899, Yusuf v. Obasanjo (2006) ALL FWLR (Pt. 294) 387 @ 460, Adediji v. Kolawole (2004) ALL FWLR (Pt. 214) 91, Emesim v. Nwachukwu (1999) 6 NWLR (Pt. 605) 154. Without any difficulty of any kind, it can be seen and observed that the evidence adduced by the Appellants in proof of the allegations of corrupt practices against the Respondents to the petition did not came even near the parameters or requirements stated and restated in the above judicial authorities for the discharge of the burden beyond reasonable doubt so as to avail the Appellants. In the circumstances, the Tribunal is right in law to hold that the Appellants failed, woefully it must be said, to prove the allegation/ground of corrupt practice/s in respect of the re-run election of 27th April, 2019 to warrant the invalidation of the election on that ground.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In the final result, for the aforenamed reasons, the issue 6 is resolved against the Appellants.
Issue 7: Whether the lower Tribunal was right when it held that the Petitioners failed to prove any of the grounds in the Petition and dismissed the Petition. (Grounds 23 and 24).”
Appellants’ Submissions:
The submissions on issue 1 – 6 of the Appellants are adopted for the issue in urging the Court to hold that the Tribunal was wrong to have held that the Appellants failed to prove any of the grounds of the petition.
In conclusion, the Court is urged to allow the appeal on all the issues canvassed in the Appellants’ brief.
1st Respondent’s Submissions:
The 1st Respondent’s brief does not contain specific arguments on the Appellants’ issue 7, but arguments on the credibility of witnesses of the Appellants’ and probative value of their evidence on its issue 1.
2nd & 3rd Respondents’ Submissions:-
The issue is argued as issue 6 and after reference to Sections 132, 133 and 136 of the Evidence Act on the burden of proof placed on the Appellants, it is submitted that the Appellants are to succeed on the strength of their case and not rely on the weakness of the Respondents’ case. Tanko v. Echendu (2010) LPELR-3135 (SC), Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 423 and Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299 were cited and it is argued that the Appellants failed to prove any of the grounds of the petition by credible evidence and cannot rely on any perceived admission or weakness in the case of the Respondents. Reliance was placed onUchiv v. Sabo (2015) LPELR-(40360)-(CA) and Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438 @ 489 for the argument.
Submissions under issues 1-5 are also adopted and the Court is urged, in conclusion, to dismiss the appeal for lacking in merit, with substantial costs.
Resolution:
The arguments canvassed by the Appellants on their issues 1-3 and 5 which are adopted for the issue are primarily on the Tribunal’s decision to refuse to accord the evidence of the Appellants’ witnesses probative value and to accord the Exhibits R3-10 and other documents tendered by the Appellants such value.
In its judgment, the Tribunal, dealing with the evidence of Appellants’ PW1-PW32, at page 1632-3 of Vol. 2 of the Record of Appeal said that: –
“The Evidence-in-Chief of PW1-PW32 are the same in form and substance including punctuation marks with only the following variations:
(i) Name of witness and polling unit in paragraph one
(ii) Total number of registered voters and number of accredited voters in paragraph 9
(iii) total number of votes polled PDP, APC and number of votes cast in paragraph 10
(iv) Exhibits tendered, and
(v) Cross-examination
Evidence that sustain a petition as it relates to conduct or non conduct in an election petition must be the evidence worthy of belief and for evidence to be worthy of credit, it must not only proceed from, credible source must be credible itself, in the sense that it should be so natural, reasonable and probable in view of the transaction within which it describes or to which it relates as to make it easy to believe. Thus an evidence on oath will not be worthy of belief where witness called by the petitioner, who were at different places at the same time, claimed to have heard, seen and done exactly the same thing, without any discrepancies in their respective evidence. It is an indication that the witnesses have been tutored and could not have been telling the truth. The Tribunal or Court is duty bound to disregard the evidence of such witnesses as unreliable, not only as the subject matter proved to be false but to reject their entire testimony in the case for want of credibility.”
I have in the course of determining Appellant’s issue 4, considered the credibility and probative worth the evidence of PW1-32 called by the Appellants in respect of the cancellation of results in the 71 polling units in question and found it to be a tale retorted by chorus and a suborned evidence not deserving of any value on the cancellation. All I need to say on the said evidence of the witnesses is that the Tribunal is right, again, not to have accorded probative value to it on ground of want of credibility. The Tribunal correctly appraised the facts of the petition and properly evaluated the evidence of these witnesses before its finding and decision not to ascribe probative value to their evidence on ground of lack of credibility.
In assessing the evidence of PW33-PW39 at page 1637-1646 of the same Vol. 2 of the Record of Appeal, the Tribunal said that the witnesses not being polling units agents could not say whether results in the six (6) polling unit in respect of which they produced copies of the result Forms and the Presiding Officers of the said polling units are in a better position to say whether they submitted results to collation officers. Also that the 1st Appellant could not tender documents that should be tendered by polling unit agents and the documents in bulk required to be demonstrated by evidence of the persons through who they were tendered.
The arguments of the Appellants are that the PW33-37 and 39 being wards, supervisory presiding officers and collation agents were competent to tender duplicate copies of the results Forms given to them, which do not require corroboration to be believed. The Appellants’ Counsel is right that duplicate copies of election results Forms signed by and issued to agents of political parties/candidates who participated in the election by officials of the 1st Respondent are admissible in evidence and could be tendered by the said agents to whom they were issued. Section 63 of the Electoral Act provides and requires that results of an election at the polling unit shall be entered into the Form prescribed by the 1st Respondent by the presiding officer who shall sign it and be counter signed by candidates or their polling agents. Sub-section 3 requires that each of the candidates or polling agents shall be given a copy of the results Form by the presiding officer and who shall announce the result. Pursuant to Section 73 of the Act, the 1st Respondent issued and published Guidelines for step by step recording of poll in the Forms from the polling units to the last collation centre for the ward or constituency and so the people who were issued with the duplicate copies of the election results Forms as agents of candidates at the election and who were not only physically present during the collation of the results, but also signed the completed Forms where such results were entered by officials of the 1st Respondent, are competent persons who can tender the Forms in evidence. PW33 and PW34, as Ward Collation Agents and PW35, PW36 and PW37 as Supervising Presiding Officers appointed by the 1st Respondent were all competent to tender and give evidence on the Forms either given to them or obtained by them in the course of the official election duty, respectively. See Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. However, none of them can give credible evidence on the reports of the presiding officers on the cancellation of results at the polling units submitted to the Ward Collation Officers of the 1st Respondent or the reasons for the cancellation since they did not see the reports of the presiding officers on what actually happened during the election at the affected polling units. To that extent, the Tribunal was right to hold that the said witnesses’ evidence on the cancellation of election results at the polling units they testified about or the reasons for the cancellation, was mere hearsay evidence which cannot be the basis of a valid finding or decision in law, for being inadmissible by the express provision of the Evidence Act, as demonstrated earlier in this judgement. The law is that a Court of law can only predicate or base its findings or decisions on legally admissible evidence placed before it in the determination of a case and is enjoined to reject inadmissible evidence at judgement stage even if admitted. See Shanu v. Afribank, Plc (2002) 6 SC (Pt. II) 135, (2002) 17 NWLR (Pt. 795) 185; Shittu v. Fashawe (2005) 7 SC, (Pt. II) 107; Onochie v. Odogwu (2006) AFWLR (Pt. 1317) 554; Abubakar v. Chuks (2008) 2 MJSC, 190.
As for the 1st Appellant, who testified as PW38, all the evidence she gave on the various election results Forms tendered through her and admitted as Exhibits P120-P176, was second hand and of no probative worth or value for the purpose of the cancellation of the results in 71 Polling Units of the 23rd February, 2019 election since she could not effectively demonstrate the contents and purpose of the documents. Under cross-examination by Osinowo, Esq., at page 136 of Vol. 2 of the Record of Appeal, PW38, said, inter alia, that: –
“Witness was referred to paragraphs 14, 15NS of her statement and was asked that she did not had any problem with the election of 23rd February, 2019 in her constituency except for the cancellation and she said yes. She confirmed that she did not accompany any of the presiding officers to any of the collation centers. I was not at the collation centers but my agents were there, I am aware that the results of 71 polling units of the 23rd February, 2019 election were not collated at the collation centre.”
If the witness did not accompany any of the presiding officers to any of the Collation Centres and was not at any of such centres, she could not give reliable first hand and credible evidence of what transpired at the centres, particularly as it relates to the cancellation of results in the 71 Polling Units. It needs to be pointed out again and emphasized that the Appellants’ petition was predicated on the allegation of unlawful and wrongful cancellation of results in 71 Polling Units of the 23rd February, 2019 election and the duty and legal burden was on them to prove the allegation in respect of the polling units.
There is no challenge or dispute between the parties about the results for the other polling units in the constituency for the 23rd February, 2019 election which were announced, pursuant to Exhibit P177. The issue of proof in respect of the announced results for the other polling units does not therefore arise in the petition.
PW39; Obinna Maduabum Francis, in his Statement on Oath which was dated on the 17th May, 2019 and adopted as his evidence-in-chief at the trial, said, in paragraph 1 thereof, that he was a Polling Unit Agent at Polling Unit 015, Mosafejo Ward 10. Just like PW1-PW32, the witness merely repeated the same incredible story on the allegation of unlawful cancellation of results in the 23rd February, 2019 election and the re-run election of 27th April, 2019 against which the Exhibits R3-R10 stand firm for the purpose of proof of the cancellation of the affected results. The witness (PW39) in another statement on Oath, which was not dated and is at pages 222-250 of Vol.1 of the Record of Appeal, he said at paragraph 1 thereof, that he was Local Government Collation Agent of the Appellants in both the 23rd February, 2019 and the re-run elections. This was repeated in yet another Statement on Oath of the witness dated the 14th June, 2019. So the witness was a Polling Unit Agent during the election of 23rd February, 2019 as well as the Local Government Area Agent for the same election who gave evidence on the results of the said election in the 71 Polling Units which were cancelled. The evidence was not credible and the Tribunal was right not to have accorded it probative value in the determination of whether the cancellation of results in said polling units was unlawful or wrongful, as alleged by the Appellants.
I have, in the consideration of Appellants’ Issue Four (4), determined that the Tribunal was also right when it countenanced Exhibits R3-R10, which are admissible by virtue of Section 52 of the Evidence Act. The same position applies to the other documents tendered by the Respondents copies of which were not front loaded, but specifically named in the replies and which were indicated to be relied on at the trial. Again, since the Appellants were given the opportunity by way of an adjournment, to consider the said documents after they were produced by the subpoened witnesses, the Tribunal rightly countenanced them in the determination of the petition before it.
In the premises of all I have said above, the answer to the Issues 1, 2, 3 and 7 of the Appellants is that the Tribunal properly appraised, assessed and evaluated the admissible, material and relevant evidence placed before it by the parties.
In the circumstances, this Court has not been shown any valid reason or justification to warrant an interference with the evaluation of the evidence properly and rightly carried out by the Tribunal whose primary duty it was to do so in the Appellants’ petition and was right that they failed to prove any of the three (3) grounds upon which the petition was predicated, as required by the law. See Ojokolobo v. Alamu (1998) 9 NWLR (Pt. 565) 226; Sha v. Kwan (2000) 5 SC, 178; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Adebayo v. Adusei (2004) 4 NWLR (Pt. 662) 44; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Nagogo v. CPC (13) 2 NWLR (Pt. 1339) 448.
In the final result, I find no merit in the appeal and it is hereby dismissed accordingly.
In consequence whereof, the decision delivered by the Tribunal on the 11th November, 2019 dismissing the Appellants’ petition, is hereby affirmed.
Parties shall bear their respective costs of prosecuting the appeal and cross-appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in draft the robust judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. PJ), with which I agree with the addition of these few words of mine by way of emphasis.
The election appeal is from the election petition Tribunal (the Tribunal below) that determined election petition in Ajeromi/Ifelodun Federal Constituency of Lagos. The appellants called 39 witnesses.
The trial Tribunal held in part of its judgment in pages 1693 – 1694 of the record of appeal (the record) that –
“The petitioners witnesses P1 – P32 stated verbatim in their paragraph 15 of the statement on oath as follows –
15. INEC fixed a rerun election in my polling unit on 27th April, 2019 based on the purported cancellation. I was present in my polling unit throughout the period meant for the election. There was no proper election on that day as agents and members of APC harassed and chased away PDP members and non indigene voters who they believed came to vote for the candidate of PDP who is a non indigene. The agents and members of APC engaged in multiple thumb printing of ballot papers and intimidation of voters and at the end of the day, allotted votes to the parties in connivance with the INEC officials. There was no due accreditation or voting in my polling unit on 27th April, 2019.”
The trial Tribunal further held in its judgment in page 1694 of the record that these pieces of evidence were tutored and thus unreliable. I agree. There is the Modern Nigerian Election Petitions and Appeals Law written by Ikoroaha Esqr. (First Edition) where the learned writer states aptly in pages 226-229 thus –
“It is trite that a party who makes non-voting or misconduct or non-conduct of an election the pivot of his case must call at least one disenfranchised voter from each of the polling booth or units or stations in the affected constituency or district/area as a witness to testify in support of his allegation (Nkeiruka v. Joseph (2009) 5 NWLR (pt.1135) 505). However, the evidence that will sustain such an allegation must be evidence worthy of belief, and for evidence to be worthy of credit, it must not only proceed from credible source but must be credible itself, in the sense that it should be so natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe (Agbi v. Ogbeh 8 NWLR (pt.926) 40 at 134). Thus, an evidence on Oath will not be worthy of belief were witnesses called by the petitioner, who were at the different places at the same time, claimed to have heard, seen and done exactly the same thing, without any discrepancies in their respective evidence. This is indicative that the witnesses have been tutored and could not have been telling the truth. How could it have been that in all polling units listed in a Petitioners petition, exactly the same choreographed hijacking process took place? How come the Petitioners gave no unique detail as to time, exact location of the hijack-polling unit by polling unit – details of the actual incident of the hijacking presented in unique verifiable language, polling unit by polling unit. This is incredible and the Tribunal/Court is duty bound to disregard the evidence of such witnesses as unreliable, not only on the subject matter proved to be false, but to reject their entire testimony in the case for want of credibility. See the case Maduabum v. Nwosu (2010) 13 NWLR (pt.1212) 625 at 656-657), where it was held thus:-
“To start with, on examination of the written statements on Oath of RW1A-RW14A, who were witnesses called by the appellant, these witnesses claimed to have heard, seen and done exactly the same thing, without any discrepancies in their respective evidence. This was indicative that the witnesses have been tutored and could not have been telling the truth. Be it noted that 1st and 2nd Respondents also filed written statement on oath of their witnesses along with the petition. And from the 1st and 2nd Respondents witnesses is different and cannot be said to have the same paragraphs or repeat what each other said verbatim. See AJADI v. AJIBOLA (2004) 16 NWLR (Pt.898) 91, where this Court held that, where one witness comes in to chorus what the other witness said verbatim, it will raise a suspicion that their testimonies were pre-arranged and so stood discredited.
The appellant argued that under the new system, the legal practitioner prepared the written statements on Oath of the appellant’s witnesses, so the written statements on oath were bound to contain the same facts and the witnesses were bound to be tutored. To this, I said to him that, there was no evidence before the Tribunal that a legal practitioner prepared the written statements on Oath or his witnesses. Similarly, there was no requirement in the rules which says that only a lawyer can prepare such statements. Courts or Tribunals are not interested in who prepares the statements or a party’s witnesses on oath and it is unacceptable to argue that the lawyer must in the present system prepare the statement on Oath.
But however, if a lawyer prepares the statements of witnesses on Oath, that lawyer is presumed to be aware of Section 26 of the Evidence Act and ought to include in the statement on Oath, only what the witness tells him and not what he imagines the witness should have seen or heard. It is difficult to understand how a proforma written statements on Oath could have been prepared by Counsel to cover the appellant’s 14 witnesses as if all of the witnesses were at the same place and at the same time.
One point to note is that, in case, is a situation where 14 different persons who were in different places spread across the three Local Government Areas and 14 different towns coincidentally all saw, heard and did the same thing on 21st and 22nd April, 2007. This is my view is not possible and I totally agree in this respect, with the Tribunal, when it said that, “similarities of the said deposition or those witnesses are too obvious to be coincidental and were therefore unbelievable and of no probative value.”
Therefore, where a petitioner’s witnesses statement on Oath is tainted with the above fundamental vice, he has failed to place before the Court or Tribunal cogent and reliable evidence in support of his case, the defendant will be relieved of any burden to call evidence to put on their own side of the scale as there is nothing left on the other side of the scale in terms of credible evidence in favour of the petitioner.”
A party alleging disenfranchisement of voters at an election has to meet the requirements stated in Modern Nigerian Election Petitions and Appeals Law (supra) 592 – 598 thus –
“In the case of Emmanuel v. Umana (2016) 2 S.C. (pt.1) at 82, the Supreme Court, per His Lordship, Rhodes-Vivour, J.S.C., help that –
“A voter is disenfranchised when his right to vote is taken away. That is to say he claims to be registered but was not allowed to vote. When would the Court be satisfied that voters were disenfranchised?
(a) The disenfranchised voters must give evidence to establish the fact that they were registered but were not allowed to vote.
(b) The voters’ card and voters register for the polling unit must be tendered.
(c) All the disenfranchised voters must testify to show that if they were allowed to vote their candidate would have won.
“There are 31 Local Governments in Akwa Ibom State and very well over 2,000 polling units spread across the States. Fifty three witnesses, mainly collation and polling agents and a sprinkling of voters gave evidence that there was no election in their polling units. This might well be so, but the evidence led all disenfranchisement covered not many polling units, and were not enough to nullify the election. It was not substantial.”
InNnaji v. Agbo 2 EPR 846. The Court of Appeal said at Page 880 thus: “In the instant case, by virtue of Section 150 of the Evidence Act, is a presumption that elections were duly conducted in all the wards including the disputed areas and that all the conditions for valid elections were duly met, it is therefore incumbent all the petitioner to call voters to show that they did not vote in the disputed wards all the said date because there were no voting, counting of votes, or announcements of results took place in the disputed wards on that day …
No doubt the allegations of the petitioner that elections did not hold in 17 wards out of the 26 wards in the constituency is a very serious one and the burden of proof all the petitioner is a very weighty one and it is not what he can easily discharge by only bringing people to say that they spent the whole day in those wards that there was no voting and the burden of proof will then shift to the respondent to show that there was voting, accreditation, counting of votes and the announcement and also tendering the voters register which is a public document which the Petitioner is expected to subpoena the Electoral Commission to produce, so that he could prove his case. If this is the case, anyone can easily raise such ground in his petition and then sit back and leave the respondent to struggle it out and show that there was an election.”
And in the case of Onoyom v. Egari (1999) 5 NWLR (pt.603) at 435 it was held thus:-
“The appellant asserted that there was no election in some areas wards and there were election malpractices, it is for the appellant to lead all available evidence to establish those allegations. The argument that the appellant having led evidence to show that PW4, PW5 and PW6 did not vote and that some voters’ cards were not accredited that the onus of proof has shifted on the respondents to satisfy the Tribunal by producing the voters register to show that the voters were accredited has no basis law.”
In all, where the Petitioner averred in their petition in that election did not hold in many polling units in the District, the primary burden of proof is on the petitioner as the Supreme Court stated in the case ofBuhari v. Obasanjo (supra) thus:-
“The primary burden of proof was on the petitioner/Appellant to establish that voting did not take place in nine (9) of the Local Government Areas in into State. The Petitioner having asserted that no voting took place, must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the constituency to show that he could not vote on the day of the election due to the reason stated by the Petitioner in the petition. The voter will tender his voter’s card in addition to testifying as a witness.”
The Appellate Courts have clearly elucidated the parameters and the elements to be established where non-voting or non-conduct or misconduct in all election is alleged in a petition. In the case of Chime v. Onyia (2009) 2 NWLR (pt.1124) at 42 – 43, it was held thus:-
“The principles and the requirement of proof enunciated in cases of:Ayogu v. Nnamani (2006) 8 NWLR (Pt.981) Page 160 at 187; and Buhari & Anor v. Obasanjo (2002) ALL FWLR Page 241; (2005) 2 NWLR (Pt.910) 241 have not been displaced by the Practice Directions.”
In Ayogu v. Nnamani (supra), this Court laid down quite clearly the nature, quantum and quality of evidence that a Petitioner alleging non-voting in all election must offer to entitle him to succeed. At Page 187 of the Report, it was stated thus-
“In the instant case, the appellant who asserted before the Lower Tribunal that there was no voting materials, no INEC officials to supervise the voting and that no voting in fact took place in at least 13 Local Government Areas in Enugu State, must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the respective Local Government Areas to show that he could not vote on the said 19/4/2003 at the said polling booth as there were no voting materials or INEC officials to preside over the voting. He must also establish by credible evidence how the lack of voting in these Local Government Areas affected the final results of the election to his disadvantage”.
And inBuhari v. Obasanjo (supra), it was held thus:-
“The primary burden of proof was all the Petitioner/Appellant to establish that voting did not take place in nine (9) of the Local Government areas in Imo Stale, The Petitioner having asserted that no voting took place, must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the constituency to show that he could not vote on the day of the election due to the reason stated by the Petitioner in the petition. The voter will tender his voter’s card in addition to satisfying the witnesses.”
See Ngige v. INEC (2015) 1 NWLR (pt.1440) at 36 where it was held thus:-
“A voter is disenfranchised when his right to vote is taken away. That is to say he claims to be registered but was not allowed to vote. When would the Court be satisfied that voters were disenfranchised?
a. The disenfranchised voters must give evidence to establish the fact that they were registered but were not allowed to vote.
b. The voters card and voters register for the pooling unit must be tendered.
c. All the disenfranchised voters must testify to show that if they were allowed to vote their candidate would have won the elections. See Ucha & Anor. v. Elechi & 2 ORS. (2012) 13 NWLR (Pt.1317) 330; Oke v. Mimiko(No.2) (2014) 1 NWLR (Pt.1388) p.332. In the OKE case, it was alleged that several names were injected into the voters register.”
And also in Kakih v. PDP (2014) 15 NWLR (pt.1430) at 419, it was held thus:-
“He made non-voting or misconduct or non- conduct of election the pivot of his case. It behoves on him to call at least one disenfranchised voter from each of the polling booths or units or stations in the affected Constituency or district/area as a witness to testify in support of this allegation. SeeAudu v. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 at 523; Chime v. Onyia (2009) 2 NWLR (pt. 1124) 1; Ayogu v. Nnanami (2006) 11 NWLR (Pt.981) 160.
See also the case of Emmanuel v. Umana (supra), where the Tribunal relied on the hearsay allegation of disenfranchisement by P. W. 33 (Don Etiebert) to nullify the entire election of Oruk Anam Local Government Area (LGA). The said LGA has 90,595 registered voters and one Hundred and sixty nine Polling Units. On the allegation that no results were made available to his unit and that the same problem was applicable to other polling units across the said L.G.A. The Supreme Court, per Tobi, JSC, declaring the evidence P.W. 33 of no use and deficient of probative value held that:- “Worse still, even if that testimony was admissible, it was simply illogical to hold that the happenstances in Chief Etiebets’s Unit 11, Ward 1 sufficed to mirror the events in the entire one hundred and sixty nine polling units of Oruk Anam LGA. The only way the petitioners could have established disenfranchisement in Oruk Anam LGA was by calling the disenfranchised voters in the entire one hundred and sixty nine polling units”.
See also Nyesom v. Peterside (2016) NWLR (pt.1512) at 536.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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No other evidence can do in the case. It was therefore the duty of appellants to produce in evidence the electoral materials needed to establish the allegation(s), and the viva voce evidence of voters disenfranchised. The petitioners did not prove any of the above allegations are required by electoral law.
It was emphasized by the Supreme Court inEmerhor v. Okowa (supra) that the issue pertaining to voting is covered statutorily; hence it is a matter of law, which must not be handled discretionally. In essence, parties cannot by an agreement, waive the law especially when the burden of proof of non-voting rests on the petitioners.
The trial tribunal held in its judgment in page 1693 of the record that Exhibit P182 series consisting of card reader reports for supplementary election in respect of 71 polling units comprising 409 pages for Ajeremi-Ifelodun Federal Constituency in Lagos State was never examined in the open Tribunal and therefore lacked probative value. I agree. For the Supreme Court held per the lead judgment prepared by His Lordship, I. T. Muhammad, C.J.N., in the case of Atiku Abubakar and Ors. v. INEC & Ors., in Appeal No. SC.1211/2019 delivered on 15.11.19 inter alia that –
“The makers of such tendered documents must be called to speak to those documents and be cross examined on the authenticity of the documents. It is also the tested position of the law where the maker of the document is not called to testify, the document would not be accorded probative value by the Court. That in deed is the fate of Exhibits P80 and P24. See Udom Emmanuel v. Umana Umana (supra), Wike v. Peterside (2016) 7 NWLR (pt.1512) 452.”
See also the case of Babake v. F.R.N. (2019) 1 NWLR (pt.1652) 100 at 130 – 131 thus –
“The next issue to consider is the analysis of the Exhibits carried out by the learned trial Judge. It is a well-established principle of law that when documents are tendered in evidence, their purport must be demonstrated in open Court by the party tendering them. It is not sufficient to merely tender documents without linking them to specific aspects of the party’s case. In the case of: Ladoja v. Ajimobi & Ors. (2016) LPELR-40658 (SC) @ 48 – 50, E – B, (2016) 10 WLR (Pt. 1519) 87 at 146 pp. 145 paras. H-D, this Court held thus:
” … the law is settled on documents tendered in Court which purpose and worth must be demonstrated through a witness. It is settled also that the duty lies on a party who wants to rely on a document in support of his case to produce, tender and link or demonstrate the documents tendered to specific parts of his case. The fact that a document is tendered in the course of proceedings does not relieve a party from satisfying the legal duty placed on him to link his document with his case. See C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493 @ 546 – 547).
… It is not the Courts lot to be saddled with nor can it suo motu assume the partisan responsibility of tying each bundle of such documentary evidence to the appellant’s case to prove the malpractice alleged.
… The Court as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party.”
See also: Ucha & Anor. v. Elechi & Ors. (2012) 13 NWLR (Pt.1317) 330 @ 369.”
See again Omisore and Ors. v. Aregbesola and Ors. (2015) 15 NWLR (pt.1482) 205 at 280, 299, 323 – 324.
Apart from not proving beyond reasonable doubt the alleged acts of electoral malpractices amounting to criminal offences, there was no shred of evidence that the alleged violent acts that purportedly disrupted the election were attributed to the 2nd – 3rd respondents, nor were the alleged APC thugs said to have acted for and on behalf of the 2nd – 3rd respondents either by their express or implied authority/permission; nor did the 2nd – 3rd respondents ratify the alleged electoral malpractices, therefore the 2nd – 3rd respondents cannot be penalized for the alleged acts of violence/disruption of election by some over-zealous persons upon whom they had no control.
I accordingly agree with the judgment prepared by my learned brother, Mohammed Lawal Garba J.C.A., (Hon. PJ), that the Lower Tribunal was right in holding that the election was conducted substantially in accordance with the principles of the Electoral Act 2010, as amended, and that the alleged non-compliance did not affect substantially the result of the election vide Section 139(1) of the Electoral Act, 2010, as amended.
TIJJANI ABUBAKAR, J.C.A.: The Tribunal captured the grievance of the Appellants, that when re-run elections were held on the 27th day of April 2019, there was no proper election because voters were chased away, and agents of the Respondents engaged in multiple thumb printing and connived with the 1st Respondents and allotted votes to the 2nd and 3rd Respondents.
Proof of non-voting is not as simple as the Appellants wanted it to be, relying on the decision in EZEANUA V. ONYEMA & ORS (2010) LPELR-11612 (CA) this Court per my Law Lord SANUSI JCA (As he then was now JSC) held as follows:
“The Appellant testified as PW9 and last petitioners’ witness. His testimony is predicted on lies, half-truth and in some cases based on hearsay. For instance, the Appellant that all he said in his statement on oath on what he did in INEC office at Atani I between 7 am to 3.45pm such as suggesting to INEC officers to postpone the election were done by his agents and not by him. It is instructive to note that as Petitioner, the Appellant and his witnesses did not lead credible evidence to prove the alleged non holding of election in Ogbaru I and part of Ogbaru II. No witness was called by the Appellant to tender his voters card for purpose of comparison by the Tribunal with the voters’ register so as to ascertain whether he was registered to vote. It is the practice that in the process of election, accreditation process must be done before the election, which entails the stamping of voters card and the marking of the voters’ register. Accreditation is a prerequisite of voting. This is because where votes and voters register are not marked and there was no accreditation and yet votes are returned for a particular voting unit, it can safely be concluded that such votes were obtained through faulty or suspicious process and will be regarded as invalid votes. Again where voters register had no marking but Form EC8A or EC8AI are produced showing some scores, such scores must be excluded from the votes scored or entered in favour of the candidate for being invalid votes. Thus, the production of voters card through a witness is sine qua non in proof of irregularity or otherwise in an election process. Therefore, in order to prove allegation of irregularity in election, especially where a petitioner alleges non-voting in a particular area, the best evidence to lead in proof of such allegation is that the petitioner must call a registered voter in the disputed areas or wards to show that they did not vote in the particular booth on the election date because there were no election officials and that no voting took place there but counting or announcement of results took place in the said wards on that day. This is necessary because by the provisions of Section 150 of the Evidence Act there is a presumption (albeit a rebuttable one) that election took place everywhere on the election day. See Nweke Vs. Ejims (supra); Nnaji Vs. Agbo (supra); Onoyom Vs. Egari (1999) 5 NWLR (Pt 603) 415, Buhari Vs. Obasanjo (supra). Again, the Appellant herein did not call any of his agents at the booths where votes were counted and recorded in the result forms. All the witnesses called by him were not even sure of the locations or identity of the booth in the wards. Some of them did not even say they were in any of the polling booths where they alleged elections did not take place and most of them also including the Petitioner himself, relied on what they were told or what they heard from other people. To my mind, the correct, best, qualitative and not credible evidence that the Appellant as Petitioner should have called to proof these allegations are those from his agents who received the forms from electoral officials or polling officers and who were present when the electoral officials prepared and signed the forms in which the disputed results were recorded. This was never the case here. The Appellant/Petitioner herein alleged that no election was held In some areas and that there were malpractices. He however did not lead evidence to establish those allegations even though, as I said supra, the burden was on him to prove such allegations. The burden of doing that could not shift at that stage since no credible evidence was led in proof of those allegations.”
In the instant appeal, it is clear from the evidence of PW1 -PW32 that they literally repeated and adopted one statement, that voters were harassed and chased away, this is obviously a case of rehearsed evidence arising from half-truth. The witnesses merely came to state their minds at the trial, there was no scintilla of evidence linking the Respondents to the alleged misconduct, it will be injudicious to visit the alleged misconduct on the Respondents.
But for the urge to comment on this Judgment, I would have said my Lord and Learned brother Garba JCA, who graciously afforded me the privilege of reading before now the comprehensive leading Judgment prepared and rendered in this appeal, has fully and sufficiently covered the field, leaving no room for meaningful comments.
I join my Lord in holding that Appellants appeal is bereft of merit and therefore deserves to be and is hereby dismissed by me. I also affirm the decision of the Tribunal delivered on the 11th day of November, 2019.
Appearances:
Prisca Ozoilesike with him, Gabriel Agwu For Appellant(s)
Tijani Ishola with him, A. M. Tijani and M. K. Shittu – for 1st Respondent.
Lawal Pedro, SAN with him, O. D. Osinowo, B. S. O. Osasona, T. O. Sanni and S. B. Pedro – for 2nd and 3rd Respondents For Respondent(s)
