ALHAJI ABUBAKAR HABU HASHIDU & ANOR v. ALHAJI MOHAMMED DANJUMA GOJE & ORS
(2003)LCN/1461(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of July, 2003
CA/J/139/2003
RATIO
COURT AND PROCEDURE: FUNCTUS OFFICIO
“This court was urged to hold that Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) tendered by the appellants, having been admitted by the Tribunal, the Tribunal became functus officio in respect of that issue and was therefore not entitled to hold as it did, that the said forms were not pleaded and to treat them as if they were inadmissible in evidence. The following cases were alluded to: Ekerete v. Eyo (1925) 6 NLR 118; Alh. A. Ahmed & Co. (Nig.) Ltd. v. African International Bank Ltd. (2001) 10 NWLR (Pt.721) 391 at 403. It was submitted that it is the law that neither a party nor the court is allowed to approbate and reprobate at the same time. It was finally submitted that in law documents need not be specifically pleaded in order to render them admissible in evidence as all that the law requires is that the facts of the transactions relied upon by the party seeking to rely on the documents and which facts are supported by the same documents are pleaded.” PER SIMEON OSUJIEKPE, J.C.A.
ELECTION: FALSIFICATION OF VOTES
“Apart from the criminal offence provided in section 120(5) of the Electoral Act, 2002, it also amounts to the criminal offence of falsification of figures or results or forgery as the case may be, for any person to unlawfully decrease or increase the lawful votes scored by a candidate at an election.
Having affirmatively answered the first question, it now remains to consider whether the appellants have proved the criminal allegations beyond reasonable doubt. My answer here is in the negative. Section 138(1) of the Evidence Act, 1990, provides: “138(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”” PER SIMEON OSUJIEKPE, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“It is settled law that a trial court has a legal duty to properly evaluate the evidence led by both sides before coming to its decision, which decision must be based on the totality of the credible evidence properly appraised and evaluated. See Shell Petroleum Development Co. (Nig.) Ltd. v. Otoko & Ors. (1990) 6 NWLR (Pt.159) 693. In the determination of civil cases, the trial court has a duty to weigh the evidence adduced before it on an imaginary scale and see or determine which side the evidence tilts or preponderates. See Mogaji v. Odofin (1978) 4 SC 91 at 93. Once the settled principles of appraisal and evaluation of evidence are followed or applied by the Judge, and notwithstanding the style of judgment writing adopted by the trial Judge, it cannot be said that there has been no evaluation of evidence adduced before the court. See Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at 35 to 36. In Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394) 153” PER SIMEON OSUJIEKPE, J.C.A.
JUSTICES
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
SIMEON OSUJI EKPE Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Court of Appeal of Nigeria
ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria
ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria
Between
1.ALHAJI ABUBAKAR HABU HASHIDU
2. ALL NIGERIA PEOPLE?S PARTY Appellant(s)
AND
1. ALHAJI MOHAMMED DANJUMA GOJE
2. PEOPLE’S DEMOCRATIC PARTY
3. INEPENDENT NATIONAL ELECTORAL COMMISSION
4. RESIDENT ELECTORAL COMMISSIONER GOMBE STATE 5. THE RETURNING OFFICER, YAMALTU DEBA L.G.A. CENTRE
6. THE RETURNING OFFICER, AKKO LOCAL GOVT. AREA CENTRE
7. THE WARD RETURNING OFFICER, DEBA WARD
8. THE WARD RETURNING OFFICER, D/LUBO KANAFA WARD
9. THE WARD RETURNING OFFICER, GWANI/SHINGA/WADE WARD
10. THE WARD RETURNING OFFICER, HINNA WARD
11. THE WARD RETURNING OF OFFICER, JAGALI NORTH WARD
12. THE WARD RETURNING OF OFFICER, JAGALI SOUTH WARD
13. THE WARD RETURNING OFFICER, KANAWA WAJARI WARD
14. THE WARD RETURNING OFFICER, KURI/LANO/LAMBAM WARD
15. THE WARD RETURNING OFFICER, KWARDON/LIJI/KURBA WARD
16. THE WARD RETURNING OF OFFICER, NONO/KUNUWALBIRDEKA WARD
17. THE WARD RETURNING OFFICER, ZUMBUK/KWALI WARD Respondent(s)
SIMEON OSUJIEKPE, J.C.A. (Delivering the Leading Judgment):
This is an appeal by the petitioners against the judgment of the Governorship and Legislative Houses Election Tribunal Gombe State, delivered on the 9th of June, 2003. The judgment was delivered after a full trial in which 17 witnesses testified for the petitioners and also 17 witnesses testified for the respondents in the election petition.
The 1st petitioner was the executive governor of Gombe State and a candidate for Gombe State Governorship elections held on the 19th of April, 2003, throughout this country, Nigeria. He contested the said elections on the platform of All Nigeria Peoples Party (A.N.P.P. for short). The 2nd petitioner A.N.P.P. is one of the 30 duly registered political parties in Nigeria and it nominated the 1st petitioner to contest the said governorship elections in Gombe State on the platform of A.N.P.P.
The 1st respondent to the petition was also a candidate for the said Gombe State governorship elections held on the 19th of April, 2003. He contested the elections on the platform of Peoples Democratic Party (P.D.P. for short), while the 2nd respondent (P.D.P.) is also one of the registered political parties that took part in the said elections and sponsored the 1st respondent as its candidate for the said elections.
The 3rd respondent to the petition is the Independent National Electoral Commission charged with the conduct of the said elections.
The 4th respondent is the Resident Electoral Commissioner for Gombe State, while the 5th to the 17th respondents were in their different capacities, the returning officers charged with the said elections.
In paragraph 1(e) of the petition dated 1/5/2003 and jointly filed on 2/5/2003, the petitioners averred that at the end of the said elections into the governorship position of Gombe State of Nigeria, the 1st respondent was declared the winner by the 3rd and 4th respondents having allegedly, won a majority of all the lawful votes cast at the elections, since at the said elections voting was done on the basis of party symbols of the 30 registered political parties. The petitioners stated the result of the election based on the scores of the two leading political parties that took part in the elections, viz:
I. All Nigeria Peoples Party – score 468,273 votes
II: Peoples Democratic Party – score 494,562 votes
The petitioners averred that the 1st respondent was not duly elected by majority of lawful votes cast at the election and that it was the 1st petitioner that won the said elections by majority of lawful votes. The petitioners gave a breakdown of the purported results of the governorship elections in the state (Gombe State) as announced by the 3rd and 4th respondents as follows:
L.G.A. ANPP VOTES PDP VOTES
AKKO 57,703 86,082
BALANGA 36,492 47,138
BILLIRI 24,594 42,840
DUKKU 73,688 15,160
FUNAKAYE 59,787 41,060
GOMBE 37,190 47,015
KALTUNGO 42,432 37,317
KWAMI 48,390 30,912
NAFADA 46,943 8,787
SHONGOM 22,035 17,658
YAMALTU-DEBA 37,746 146,819
The main complaint by the petitioners was centered on the results declared by the 3rd to 17th respondents in respect of Yamaltu Deba and Akko Local Government Areas of Gombe State, where the 1st petitioner was alleged to have received 37,746 votes as against 146,819 votes received by the 1st respondent. The petitioners complained severally of reduction of the total votes scored by the 1st petitioner, in the polling units and unjustified increase or enlargement to the total scores of the 1st respondent.
The petitioners also complained that in Hinna Ward of the Local Government elections did not take place in 11 polling stations, due to the disruptive activities of the agents of the 1st and 2nd respondents, yet results for those polling stations emerged on Form EC8B and transferred into Form EC8C. And that the 1st and 2nd respondents through their agents were responsible for the non-voting at those polling stations at Hinna ward.
It was also the complaint of the petitioners that on the election day, at the time materials were about to be distributed and soon thereafter, the 1st respondent in the company of armed men and thugs, including a large retinue of mobile and regular policemen caused pandemonium at the distribution centres of Kashere and Tumu wards in Pindiga district of Akko Local Government Areas and at all the polling units in succession and all the prospective voters were forced to disperse at the sound of gun shots and teargas, which led to absence of voting. That the 2nd petitioner’s officials made complaints about non-voting due to thuggery and intimidation by the 1st and 2nd respondents’ agent. And the 4th respondent through his agents acknowledged receipt of letters of complaint and failed to investigate it, let alone redress the situation.
The petitioners therefore prayed the Election Tribunal to determine and declare that the 1st respondent was not duly elected by a majority of lawful votes and that the 1st petitioner be declared validly elected having polled the highest number of lawful votes cast at the election. Alternatively the petitioners prayed that the election in Tumu and Kashere wards of Akko Local Government be declared invalid as a result of corrupt practices and other irregularities contrary to the Election Act No.4 of 2002. That an order directing that fresh election be conducted in the said Tumu and Kashere wards of Akko Local Government of Gombe State. Also, the petitioners prayed for an order of perpetual injunction restraining the 3rd and 4th respondents from recognizing the 1st respondent as the duly elected Governor of Gombe State and restraining the 1st respondent from presenting himself for the purpose of being sworn in as the Governor of Gombe State.
After entering conditional appearances, the respondents filed their replies or answers to the petition. The 1st and 2nd respondents in their respective replies or answers, virtually denied the allegations leveled against them in the petition. They gave the overall results of the votes scored by both the 1st petitioner and the 1st respondent at the polling units and ward levels as entered in Forms EC8A(1) and EC8B(1). They also stated the overall declared results of the election as follows:
“The 1st petitioner (A.N.P.P.) 468,273 votes
The 1st respondent (P.D.P.) 494,562 votes”
Finally, they averred that the 1st respondent had a majority of lawful votes cast at the election and was returned as duly elected by the 4th respondent, and urged the Tribunal to dismiss in its entirety the prayers in the said petition.
The 3rd to 17th respondents also filed their reply or answer to the petition and denied the allegations leveled against them and averred that the 1st respondent was duly returned by majority of lawful votes, while the 1st petitioner did not score the highest number of votes at the election. They also urged the tribunal to dismiss the petition with substantial costs.
The petitioners also filed their replies to the answers of the respondents to the petition.
As I have stated earlier, there was a full hearing of the case by the Election Petition Tribunal with the parties calling their witnesses, written addresses were submitted by counsel for the parties. In its judgment delivered on 9th day of June 2003, the Tribunal dismissed the petition and held that the 1st respondent, Alhaji Mohammed Danjuma Goje, was duly elected or returned and that the 1st petitioner Alhaji Abubakar Habu Hashidu was not duly elected.
Being dissatisfied with the decision of the Tribunal, the petitioners now appellants have filed a joint notice of appeal to this court predicated on seven grounds of appeal and with the leave of the court sought and obtained added additional grounds of appeal bringing the total number of grounds of appeal to twelve grounds. The 1st respondent filed the respondent’s notice.
The parties filed their respective briefs of argument. The appellants filed a reply brief.
The appellants in their brief of argument framed four issues for determination of the appeal. They read:
“4.1 Whether the Tribunal below was right or correct in law, when it refused to take into account or evaluate documents it admitted in evidence as exhibits A-N23 and T-T61, to wit Forms EC8A(1), EC8B(1), EC8C(1) and EC8B(1) (being result forms issued to petitioners agents at various stages of the Governorship election) and tendered by the petitioners’/appellants’ on the ground that the Forms were not the same as those pleaded?
4.2 Whether the Tribunal was right when in resolving the only issue it posed namely; “Which of the conflicting documents and figures are correct and genuine on the face of the evidence produced before it”, it preferred, without any evaluation, to rely on the set of documents tendered by the respondents instead of the set of documents tendered by the petitioner?
4.3 Whether the Tribunal was right when it held that, the appellants were bound to prove their allegations of reduction of appellants’ votes and unjustified increment of votes credited to the 1st and 2nd respondents’ beyond reasonable doubt and if so, did the petitioners not prove the said allegations beyond reasonable doubt?
4.4 Whether upon a proper evaluation of the evidence before the Tribunal, which is mainly documentary, the appellants/petitioners were not entitled to judgment in their favour?”
The 1st respondent to the petition now the 1st respondent in this appeal, formulated the following issues for determination. They are as follows:
“i. Whether the Election Tribunal properly evaluated the evidence adduced before it by the parties to the petition.
ii. Whether the Election Tribunal was right in its conclusion that the petitioners made allegations of the commission of criminal offences by the ward collation officers in the petition, and that these allegations must be proved beyond reasonable doubt.
iii. Whether or not, the Election Tribunal was right in its conclusion that the petitioners/appellants did not base their evidence at the hearing of the petition on the Forms they pleaded.”
With regard to the respondents’ notice filed by the 1st respondent, one issue was formulated for determination, namely:
“Whether in all the circumstances of this matter and having regard to the matters raised in the respondent’s notice, this Honourable Court should affirm the decision of the Election Tribunal.”
The 2nd respondent to the petition now 2nd respondent in this appeal, in its brief of argument distilled three issues for determination of the appeal as follows:
“(1) Whether the trial Tribunal was not right, when it held that the appellants have not proved by preponderance of credible evidence that the 1st respondent was not elected by majority of lawful votes cast at the election?
(2) Whether in all the circumstances of this case, the findings of the learned trial Tribunal were perverse?
(3) Whether the case put forward by the appellants both in their pleadings before the lower tribunal and the new one set up by them at the trial were not ones that required proof beyond reasonable doubt, and whether this onus had been discharged by them?”
The 3rd to 17th respondents filed a joint brief of argument and framed four issues for the determination of the appeal, viz:
“1. Whether the evidence tendered by the appellants are at variance with their pleadings.
2. Whether two sets of polling documents were in issue arising from the pleadings and if the answer is in the negative, whether the Tribunal was right in according no probative value to the polling documents tendered as exhibit A – N23 by the appellants.
3. Whether the Tribunal evaluated the evidence before arriving at their decision.
4. Whether allegation of crime was an issue arising from the pleadings and if the answer is in the affirmative, whether they had been proved beyond reasonable doubt”
After a close perusal and reflection on the four sets of issues framed by counsel in the respective briefs of the parties, I formed the view that the following issues are adequate and germane for the determination of the appeal.
1. Whether the Election Tribunal was right in its conclusion that the appellants did not base their evidence at the hearing of the petition on the result Forms they pleaded and were admitted in evidence by the Election Tribunal.
2. Whether the Election Tribunal was right when it held that the appellants were bound to prove their allegations of reduction of the appellants’ votes and unjustifiable increment of votes credited to the 1st and 2nd respondents, beyond reasonable doubt and if so, did the appellants not prove the said allegations beyond reasonable doubt.
3. Whether the Election Tribunal properly evaluated the evidence adduced before it by the parties and came to the right decision.
I will now consider and resolve the above issues seriatim.
On issue No.1, J.B. Daudu learned Senior Advocate of Nigeria contended in the appellants’ brief that the Tribunal was in error to have declined to evaluate exhibits A – N23 the result forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) on sole ground that they were not pleaded by the appellants in their petition. It is note worthy that appellants pleaded Forms EC8(A), EC8(B), EC8(C) and ECS(D) in their petition, but at the trial, they sought to admit Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1), which was resisted by the respondents. After a strenuous argument by the parties on the matter, the Tribunal in its ruling admitted them in evidence. However, in its judgment, the Tribunal discountenanced the forms, holding that they were not pleaded by the appellants.
It was argued that by refusing to look at the documents (the Forms) tendered by the appellants and admitted in evidence despite objection, the Tribunal was stopped from going back on the effect of its ruling, and occasioned a miscarriage of justice in that it left the substance of the matter and took refuge in feeble technicality. Referring to the case of Akpan v. Ekpo (2001) 5 NWLR (Pt.707) 502 at 514-515, learned Senior Counsel submitted that where in the course of trial a court makes a ruling in an interlocutory application, the ruling can only be reversed on appeal or by the same court where the decision is openly a nullity.
It was submitted that the Tribunal did not in its judgment demonstrate that its earlier ruling admitting the forms in evidence was a nullity or void, nor did it expunge the documents rightly admitted from the record. It was therefore, submitted that non-consideration of the documents (the Forms) by the Tribunal occasioned a serious error when the Tribunal resiled from its earlier ruling even without the benefit of an appeal.
This court was urged to hold that Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) tendered by the appellants, having been admitted by the Tribunal, the Tribunal became functus officio in respect of that issue and was therefore not entitled to hold as it did, that the said forms were not pleaded and to treat them as if they were inadmissible in evidence. The following cases were alluded to: Ekerete v. Eyo (1925) 6 NLR 118; Alh. A. Ahmed & Co. (Nig.) Ltd. v. African International Bank Ltd. (2001) 10 NWLR (Pt.721) 391 at 403. It was submitted that it is the law that neither a party nor the court is allowed to approbate and reprobate at the same time. It was finally submitted that in law documents need not be specifically pleaded in order to render them admissible in evidence as all that the law requires is that the facts of the transactions relied upon by the party seeking to rely on the documents and which facts are supported by the same documents are pleaded.
The following cases were cited: Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 at 192 to 193; Odunsi v. Bamgbala (1995) 1 NWLR (Pt.374) 641 at 655; MCC v. Azubuike (1990) 3 NWLR (Pt.136) 74 at 86; P.N. Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR (Pt. 723) 114; (2001) 1 NWLR (Pt.59) 900 at 922; Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt.453) 148 at 166.
For the 1st respondent, Olajide Ayodele, SAN has contended that in paragraphs 6 to 19 of the petition the appellants had specifically referred to Forms EC8A, EC8B, EC8C and EC8D respectively, but at the trial, they sought to tender forms whose nomenclature is different from the ones they had pleaded and objection was raised on the ground that the forms were not pleaded.
It was submitted that Forms EC8A, EC8B, EC8C and EC8D which the appellants pleaded are distinct and different from Forms EC8A(1), EC8B(1), EC8C(1) and EC9D(1). It was submitted that failure to give the forms their appropriate names can only mean that the appellants had not pleaded the appropriate forms and they cannot refer to the scores contained in the appropriate forms, which they had not pleaded. It was submitted that the appellants having pleaded a different set of forms prescribed and used for a different election cannot be allowed to tender a different set of forms from the ones contained in their pleading. It was also submitted that a trial court has power in a proceedings before it, to expunge or disregard any document or evidence inadvertently received or admitted in evidence at the trial and reference was made to Ogboda v. Adulugba (1971) 1 All NLR 68 at 73; Salawu Jagun Olukade v. Abolade Agboola Alade (1976) 2 SC 183.
On the contention of the appellant that the forms which they did not plead in their petition were pleaded in their reply to the respondents’ answers to the petition, it was submitted for the 1st respondent that that was not an answer to the issue, as it is not proper to raise new issues in a reply, and that the proper course to follow was to seek an amendment of the petition and plead the proper forms. Reference was made to the case of Adepoju v. Awoduyilemi (1999) 5 NWLR (Pt. 603) 364 at 390-391. Finally, the learned Senior Advocate submitted that the Tribunal had the power to expunge its recorded evidence, which it had found not to have been pleaded and that the appellants did not plead the forms they sought to rely upon at the trial and also did not seek leave of the Tribunal to amend their petition and cannot amend the petition through their reply as they purport to have done.
K.T. Turaki, SAN for the 2nd respondent in the 2nd respondent’s brief of argument contended that the appellants having elected to plead specifically Forms EC8A, EC8B, EC8C and EC8D which are known and existent documents, they are precluded from now relying on different sets of documents not pleaded by them. He submitted that the case of Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 and O.H.M.B. v. B.B. Apugo & Sons Ltd. (1995) 8 NWLR (Pt.416) 750, are distinguishable from the case in hand. He also submitted that any evidence given in respect of a matter not pleaded, goes to no issue and should be disregarded. See Woluchem v. Gudi (1981) 5 SC 291; Enang v. Adu (1981) 11-12 SC 25. Learned Senior Counsel further submitted that the subsequent admission by the Tribunal of the unpleaded forms will not confer any material weight to them and the decision of the Tribunal not to ascribe any weight to them was therefore in order.
G. Ofodile Okafor, SAN for the 3rd to 17th respondents in line with the submissions of the learned Senior Counsel for the 1st and 2nd respondents also submitted that issues for trial are defined in the pleadings and any evidence on unpleaded facts go to no issue and does not call for determination. See Iwuoha v. NIPOST (2003) 8 NWLR (Pt. 822) 308 at 339. He agreed that under the law, documentary evidence need not specifically be pleaded to be admissible in evidence so long as facts and not the evidence, by which such a document is covered are expressly pleaded.
Consequently, where the contents of a document are material, it shall be sufficient in any pleading to aver the effect thereof as briefly as possible without setting out the whole or any part thereof. See Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt.453) 148 at 166. But where a party in any proceeding specifically pleaded certain documents, he cannot be allowed during the trial to rely on other documents different from those specifically pleaded, as the latin maxim, “expressio unius est exclusio alterius” applied. See Shell Petroleum Nigeria Co. Ltd. v. Olarewaju (2002) 16 NWLR (Pt.792)38 at 62. It was his submission that if a document is relevant it becomes admissible in evidence, if it passes the test of pleading.
He referred to the case of Oyediran v. Alebiosu II (1992) 6 NWLR (Pt.249) 550 at 559, where the Supreme Court, per Kutigi, JSC, held that in civil proceeding for a document to be admissible it must not only be pleaded, it must also be relevant, and that a document must also be pleaded to be admissible. See also Makinde v. Akinwale (2000) 2 NWLR (Pt.645) 435 at 450. It was also contended that the appellants’ reply to the 1st and 2nd respondents’ answers to the petition is invalid having been filed in contravention of paragraph 16(1) of the First Schedule to the Electoral Act, 2002, as the reply was not filed within five days from the date of the receipt of the respondents’ reply. It was contended that the amendment introduced in the appellants’ reply to the respondents answer or reply to the petition by pleading Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) are consequently invalid, having been filed out of time.
I have carefully considered the submissions of the learned Counsel to the parties, lengthy and attractive as these submissions are in regard to this issue. There can be no doubt that the appellants pleaded result Forms EC8A, EC8B, EC8C and EC8D extensively in their election petition, which forms they considered very material and relevant for the success of their case or petition. To under-score the importance of these forms to the appellants, the appellants before the commencement of the hearing of the petition filed an application at the Election Tribunal praying inter alia for an order that the 3rd and 4th respondents should produce and surrender to the Tribunal Registry all of Forms EC8A, EC8B, EC8C and EC8D used in election. The Tribunal granted the prayer and accordingly made the order. However at the trial, the appellants instead of tendering the result Forms they pleaded, summersaulted and now sought to tender Forms EC8A(1), EC8B(1), EC8C(1)) and EC8B(1) which were not pleaded by them.
There is also no doubt that Forms EC8A, EC8B, EC8C and EC8D which the appellants pleaded are distinct and different from the unpleaded Forms EC8A(1), EC8B(1), EC8C(1) and EC8B(1). It is an elementary but a fundamental principle of law that parties are bound by their pleadings. See Adesoji Aderemi v. Adedire (1966) NMLR 398. It is also the law that any evidence led by a party which is at variance with his pleadings ought to be discountenanced and disregarded as going to no issue. See Aniemeka Emegokwe v. James Okadigbo (1973) 4 SC 113 at page 117; Woluchem v. Gudi (1981) 5 SC 291; Iwuoha v. NIPOST (2003) 8 NWLR (Pt.822) 308 at 339; Akpapuna & Ors. v. Obi Nzeka & Ors. (1983) 2 SCNLR 1; (1983) 7 SC 1. It is therefore the duty of the parties to confine their evidence to those issues raised on the pleadings.
If they stray and lead any evidence on a point which was not pleaded, that point does not become an issue, unless there is first an amendment to those pleadings, pursuant to the relevant and applicable rule of court. The trial court also has a duty to reject any evidence which is contrary to the pleadings. See National Investment & Properties Ltd. v. Thompson Organisations Ltd. (1969) 1 NMLR 99 at page 104. In the instant case, Forms EC8A(1), EC8B(1), EC8C(1) and EC8B(1) not having been pleaded by the appellants in their petition should have been disregarded or struck out as inadmissible documentary evidence, which went to no issue. Indeed, any amendment whatever to the petition by the appellants at any stage, during the hearing to plead or introduce the unpleaded Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) would have failed for being late in making having regard to the provisions of paragraphs 14(1) and 16 of the First Schedule to the Electoral Act, 2002. The two paragraphs under reference read:
“14(1) Subject to sub-paragraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted the words “the election petition or reply”.
(2) After the expiry of the time limited by:(a) section 154(sic), (section 132) of this Act for presenting the
election petition, no amendment shall be made.”
16(1) If a person in his reply to the election petition raises new issues of fact in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the registry, within five (5) days from the receipt of the respondents’ reply, a petitioner’s reply in answer to the new issues of fact, so however that –
(a) the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him;
(b) and the petitioner’s reply does not run counter to the provisions of sub-paragraph (1) of paragraph 14 of this Schedule.
(2) The time limited by sub-paragraph (1) of this paragraph shall not be extended.”
Where inadmissible evidence as in the instant case of unpleaded document which ought to be pleaded is received or admitted in evidence, by a trial court, it is its duty, when it comes to consider its judgment to treat such inadmissible evidence as if it had never been admitted, i.e. to reject it. See Metalimplex v. A.-G. Leventis & Co. Ltd. (1976) 2 SC 91 at page 102. The court has power to expunge the inadmissible evidence that is wrongly admitted. See Ajayi v. Fisher (1959) 1 FSC 90; Owonyin v. Omotosho (1961) 2 SCNLR 57; (1961) 1 All NLR (Pt.11) 304 at page 307. In Agbaje v. Adigun (1993) 1 NWLR (Pt.269) 261 it was held by the Supreme Court that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered.
The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the court can make a finding of fact. See also, Inyang v. Eshiet (1990) 5 NWLR (Pt.149) 178. In Alashe & Ors. v. Olori Ilu & Ors. (1965) NMLR 66 at 71, it was held that when matter has been improperly received in evidence in the court below, even when no objection has been raised, it is the duty of the Appeal Court to reject it and decide the case on legal evidence. In the instant case, even though, the Tribunal wrongly admitted Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) in evidence, inspite of the strenuous and vigorous objection by the respondents’ counsel at the trial, it was eminently right for the Tribunal to have rejected them by ascribing no probative weight to them when it was considering its judgment.
At page 369 of the record of appeal, the Tribunal after correctly stating the law had this to say at page 370:
“We therefore hold that these statements of law have shown the importance of pleadings in civil litigation, and since the civil procedure applies to election cases, great care must therefore be taken in drafting and replying election petitions. In our view therefore those unpleaded forms are defective and fatal, and no probative weight could be put on them.”
(italics mine for emphasis)
I therefore completely agree with the views of the Tribunal. With due respect, I disagree with J.B. Daudu, SAN, for the appellants for submitting that the Tribunal was functus officio after admitting the said forms in evidence and it cannot later turn round to reject them and treat them as unpleaded and inadmissible in evidence, when considering its judgment. This is not a matter of the Tribunal approbating and reprobating at the same time. It is a matter of settled law which the Tribunal was bound to apply.
Lastly on this issue, it remains for me to consider the submission of the learned Senior Counsel for the appellants that in law documents need not be specifically pleaded in order to render them admissible in evidence so long as facts and not evidence by which such a document is covered is pleaded. The case of Okeke v. Oruh (supra) among others was cited in support. It is a basic principle of pleadings that only material facts and not evidence in proof of such facts that are permitted to be pleaded.
There are however, instances when documents which are material must be pleaded as opposed to documents which are not material. Where a document or series of document are relied upon it is always necessary in order to determine correctly whether or not they should be pleaded expressly to distinguish those documents which constitute material facts from those that are mere evidence to establish facts in issue; documents which have the former effect must be pleaded while those of the latter need not be pleaded. See Phillips v. Phillips (1878) 4 QBD 127 at pages 133 to 134. See also Achugbue v. Onyisue, No. FCA/B/46/78, judgment of the Federal Court of Appeal delivered on 13/7/79.
In the instant case, the appellants were relying upon the documents in question i.e. Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) to establish the unjustifiable reduction of their votes between the collating centers and the unjustificiable enlargement of increment of the 1st respondent’s votes and to show conclusively that they (the appellants) scored the highest number of lawful votes cast in the said election. It therefore seems to me that in these circumstances, the appellants were bound to plead the said result forms in their petition and lead evidence on them in order to succeed. In my view, it is a feeble attempt to rely on those forms which were wrongfully admitted in evidence without pleading them in their petition.
Unfortunately for them, the forms then pleaded in their petition were irrelevant for the purpose of their case at the hearing. I agree entirely with the submission of G. Ofodile Okafor, SAN that where a party in any proceeding specifically pleaded certain documents to establish his case, he cannot be allowed during the trial to rely on those documents different from those specifically pleaded. This indeed is the essence of pleadings which is to narrow down the case of the parties and to eliminate surprises at the trial.
In the circumstances therefore, I hereby resolve issue No.1 above against the appellants.
On the second issue, which, briefly stated is, whether the allegations of manipulation by the 3rd respondent’s officials of the votes scored by the 1st appellant by unjustifiable reduction and the unjustifiable enlargement or jacking up or increment of the votes scored by the 1st respondent amounted to allegations of criminal offences which should be proved beyond reasonable doubt.
The learned Senior Advocate for the appellants has contended that in the entire petition there was nowhere the words “falsification”, “forgery” or any related term was used. Rather the main ground for the petition was that the 1st respondent was not elected by a majority of lawful votes cast at the election, but that it was the 1st appellant who scored the majority of the lawful votes at that election. However, the Tribunal took the view that allegations of criminal offence were made in the petition. The learned Senior Counsel contended that the Tribunal was in error to have taken that view.
He submitted that the law is trite that to justify the application of the principle of proving certain allegations beyond reasonable doubt the issue of crime must have arisen on the pleadings. That is to say that there must have been a specific allegation of a crime such that will make its commission the basis or foundation of the claim or defence. That the mere probability of inferring the commission of a crime is not sufficient. See Nwobodo v. Onoh (1984) 1 SCNLR 1 at page 27; Ikoku v. Oli (1962) 1 SCNLR 307; (1962) 1 All NLR 194 at 199. He referred to Part VI of the Electoral Act, 2002, dealing with electoral offences and submitted that no provision therein relates to wrongful collation of election result.
It was submitted that the position of the law is now clear that where the principal issue is the determination of who between the petitioner and the respondent scored the majority of lawful votes cast at the election, that issue is not one that requires a proof beyond reasonable doubt, but proof on the balance of convenience is sufficient in such cases. The cases of Alalade v. Awodoyin (1999) 5 NWLR (Pt.604) 529 at 537 – 538; Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at 121 to 122 were alluded to. It was therefore, contended that the Tribunal wrongly applied the case of Nwobodo v. Onoh (supra) to the facts or circumstances of the present case. It was alternatively contended that even if the standard of proof required in the case in hand was proof beyond reasonable doubt, that the appellants had discharged that onus as it does not impose a duty of proof in absolute certainty or beyond all shadow of doubt. See Miller v. Minister of Pensions (1947) 2 All ER 372 at 374;
Nwobodo v. Onoh (supra); Bakare v. The State (1987) 1 NWLR (Pt.52) 579.
Finally, it was submitted that based on the evidence before the Tribunal and law guiding evaluation of evidence, the Tribunal ought to have found that the appellants proved their case beyond reasonable doubt. The learned SAN urged this court to find accordingly as an appellate court is entitled to compare the documents tendered by the appellants with those tendered by the respondents and come to the conclusion that the appellants proved beyond reasonable doubt that the 3rd to 17th respondents were responsible for making the disputed entries.
The learned Senior Counsel for the 1st respondent, in his own contribution, has submitted that from material facts in a document, allegation of commission of criminal offence can be inferred and actual words themselves constituting the criminal offence need not be used. That the material facts and circumstances will show whether or not the allegation is one of the commission of crime.
It is the overall effect of the allegation that will be considered in order to show if the commission of criminal offence is implied. Referring to paragraphs 7(i), (ii), 8(i), (ii) 9, 10 to 18 of the petition, the learned Counsel submitted that those paragraphs are directed at the 5th, 7th, 8th, 9th, 13th, 14th and 15th respondents, who were collation officers and the allegations are those of forgery and or falsification of documents or results by the said collation officers. It was submitted that since those allegations of commission of criminal offences are directly in issue, section 138(1) of the Evidence Act, 1990, comes into play and therefore, the appellants must prove the commission of the alleged crimes beyond reasonable doubt. But the appellants on whom the onus of proof lies did not satisfy the standard of proof required. The cases of Nwobodo v. Onoh (supra) and Atikpekpe v. Arubi Oye Joe (1999) 6 NWLR (Pt.607) 428 at 443 were alluded to. It was submitted that the position taken by the Tribunal was right and unimpeachable.
For the 2nd respondent, K.T. Turaki, SAN, in the brief of argument, has submitted that the allegations made by the appellants are either out rightly criminal offences or have criminal coloration or content. He referred to paragraphs 7 to 20 of the petition, vide pages 5 to 13 of the printed record. He also referred to Section 120(5) of the Electoral Act, 2002.
He contended that the allegations in the appellants’ petition are centred on the commission of fraud, forgery, and using as genuine a forged document, all of which are offences under sections 362, 363, 364 and 366 of the Penal Code. He submitted that it is unnecessary to use the word “fraud” in pleadings of the parties and once the facts are pleaded, a case of fraud can be inferred therefrom. See Olufunmise v. Falana (1990) 3 NWLR (Pt.136) 1; Nwobodo v. Onoh (supra) 1. He referred to Akinfosile v. Ijose (1960) SCNLR 447; (1960) 5 FSC 192 and submitted that it is the law that a party who makes allegations in a pleading should produce evidence to substantiate them and that in this case, the allegations of criminality should be proved beyond reasonable doubt, which the appellants were unable to discharge.
He referred to the following cases: Eboh v. Ogujiofor (1999) 3 NWLR (Pt.595) 419; Anazodo v. Audu (1999) 4 NWLR (Pt.600) 530; Kalgo v. Kalgo (1999) 6 NWLR (Pt.608) 639; Awolowo v. Shagari (1979) 6/9 SC 51; (2001) FWLR (Pt.28) 53.
G. Ofodile Okafor, SAN, for the 3rd to 17th respondents in his brief, also took the views of the learned Senior Counsel for the 1st and 2nd respondents that the appellants’ petition was replete with allegations of criminal offences against the 5th, 7th, 8th, 9th, 12th and 16th respondents which bordered on sections 362, 363, 364 and 366 of the Penal Code. He contended that paragraphs 7, 8, 9, 11, 12, 14, 15, 16 and 18 of the petition are allegations of crime of forgery, or using as genuine a forged document. He was ad idem with the learned Counsel for the 1st and 2nd respondents that the burden of proof was on the appellants to prove the criminal allegations beyond reasonable doubt, but the appellants did not discharge that onus.
To my mind, the resolution of this issue does not present any difficulty. The crucial question is whether there are allegations of criminal offences made by the appellants in their petition against any of the respondents in respect of the conduct of the said elections. If this question is answered in the affirmative, then the next question is, whether by the onus and standard of proof required, the appellants have proved those criminal allegations beyond reasonable doubt in order to succeed in their complaints.
I have had a hard look at paragraphs 7(i), 7(ii), 8(i), 8(ii), 9(i), 11(i), 12, 14, 15, 16 and 18 of the petition, which have been fingered by the respondents as replete with allegations of criminal offences against the 5th, 7th, 8th, 9th, 12th and 16th respondents. It is not necessary to reproduce the said paragraphs of the petition here.
However, the totality of the allegations border on the unjustified reduction of votes scored by the appellants, and unjustified enlargement or jacking up of results or increment of votes scored by the 1st respondent. Although, the appellants did not use the words ‘falsification” or “forgery” to denote the acts or conduct of the electoral officers allegedly involved in the said unwholesome acts, to suggest the commission of criminal offences, yet the inference or implication to any reasonable man is that the allegations constitute the commission of criminal offences. Therefore, there is no doubt in my mind that the allegations in the petition involve the commission of criminal offences.
Apart from the criminal offence provided in section 120(5) of the Electoral Act, 2002, it also amounts to the criminal offence of falsification of figures or results or forgery as the case may be, for any person to unlawfully decrease or increase the lawful votes scored by a candidate at an election.
Having affirmatively answered the first question, it now remains to consider whether the appellants have proved the criminal allegations beyond reasonable doubt. My answer here is in the negative. Section 138(1) of the Evidence Act, 1990, provides:
“138(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
In Nwobodo v. Onoh (1984) 1 SCNLR 1 at page 32, Bello, JSC (as he then was) aptly stated the legal position as follows:
“I think at this stage, I may say that I accept the submission of Chief Williams that there is in law a rebuttable presumption that the result of any election declared by FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crime against FEDECO officials responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt. The trial court found the petitioner in this case on appeal had discharged the onus.”
In the instant case, the Tribunal in its judgment at page 371 of the printed record correctly in my mind identified the issue of crime which had arisen from the pleadings as the basis or foundation of the petition and opined that the petitioners herein must prove the commission of the alleged crime beyond reasonable doubt. However, I hold the view that there is no iota of evidence before the tribunal to show that the appellants discharged the onus on them to prove the criminal allegations beyond reasonable doubt.
In the result, therefore, I resolve this issue against the appellants.
The third and last issue therein is on the evaluation of evidence adduced before the Tribunal. This was vigorously argued by the learned Counsel to the parties in their respective briefs of argument.
In arguing this issue, J.B. Daudu, SAN contended that the reason for the non-evaluation of the evidence by the Tribunal was anchored on the unjustified treatment meted to the documents tendered by the appellants on the specious reasoning that the documents were not pleaded. He submitted that even though the Tribunal eventually attempted to consider the evidence before it, it did not carry out such exercise as known to law. It was submitted that the Tribunal was duty bound to have evaluated the evidence and made findings of fact therefrom and failure to do so had led to failure of justice. He cited the cases of Olufosoye & Ors. v. Olorunfemi (1989) 1 NWLR (Pt.95) 26 at page 37 per Oputa, JSC; Morah v. Okwuayanga (1990) 1 NWLR (Pt.125) 225, Uzuegbu v. Progress Bank Ltd. (1988) 4 NWLR (Pt.87) 236 at 248 to 249.
It was argued that in a case of this nature, where the petitioner is contending that the results of the election has been altered to the benefit of the party that ought to have lost the election who eventually was declared the winner, then it is essential in the resolution of the dispute as to who won the election by a majority of lawful votes to have two sets of results, one considered genuine and the other considered falsified so that the two of them could be compared to determine their falsity. Sabiya v. Tukur (1983) 11 SC 109; Atikpekpe v. Joe (1999) 6 NWLR (Pt.607) 428 at 442 to 443; Ojukwu v. Onwudiwe (1984) 1 SCNLR 247 were cited. He referred to the evidence of PW1, PW2, PW12 and submitted that there was no evaluation of the evidence adduced by either party and cited Mogaji v. Odofin (1978) 4 SC 91 at 94 and Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt.139) 435 at 442.
It was contended that had the Tribunal evaluated the evidence adduced before it, it could have come to the conclusion that the votes of the 1st appellant were wrongly decreased and those of the 1st respondent were unjustly increased by the 3rd to 17th respondents. It was further submitted that the Tribunal could not take sanctuary in the phrase, “I believe” as he did at page 374 of the record. See Oladehin v. Continental iles Mills Ltd. (1978) All NLR (Reprint) 31 at 38. He finally urged the Tribunal to resolve the issue in the appellants’ favour.
For the 1st respondent, it was submitted by O. Ayodele, SAN that evaluation of evidence adduced before a court is not a summarisation or restatement of evidence, but a dispassionate appraisal of the evidence before the court with a view to finding out on which side of the imaginary scale the evidence preponderates. Once the settled principle of appraisal or evaluation of evidence is followed, and notwithstanding the style of writing judgment by individual Judge, it cannot be said that there has been no evaluation of the evidence before the court. See Benignus Duru & Anor. v. Jonathan Nwosu (1989) 4 NWLR (Pt.113) 24 at 35 – 36. The learned Senior Counsel was of the view that the Tribunal dealt with the main issues raised by the parties before it and decided which side of the imaginary scale should tilt.
He also contended that theTribunal dealt with the evidence of the principal witnesses on the live issues and gave a dispassionate consideration to the evidence adduced by the parties before it. It was therefore, submitted that it was wrong for the appellants to say that the Tribunal failed to evaluate the evidence adduced by the parties or that it inadequately evaluated the evidence.
The learned Senior Counsel for the 2nd respondent was also of the view that the Tribunal made a dispassionate assessment of the material evidence adduced before it, believed the respondents’ witnesses and their documents and disbelieved those of the appellants and their documents, which were devoid of any evidential value.
The learned Senior Counsel for the 3rd to 17th respondents also in his brief of argument aligned himself with the submissions of the 1st and 2nd respondents and contended that the Tribunal perfectly evaluated the evidence adduced before it and came to the right decision.
It is settled law that a trial court has a legal duty to properly evaluate the evidence led by both sides before coming to its decision, which decision must be based on the totality of the credible evidence properly appraised and evaluated. See Shell Petroleum Development Co. (Nig.) Ltd. v. Otoko & Ors. (1990) 6 NWLR (Pt.159) 693. In the determination of civil cases, the trial court has a duty to weigh the evidence adduced before it on an imaginary scale and see or determine which side the evidence tilts or preponderates. See Mogaji v. Odofin (1978) 4 SC 91 at 93.
Once the settled principles of appraisal and evaluation of evidence are followed or applied by the Judge, and notwithstanding the style of judgment writing adopted by the trial Judge, it cannot be said that there has been no evaluation of evidence adduced before the court. See Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at 35 to 36. In Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394) 153, the Supreme Court held that it is imperative that the totality of all the admissible and relevant evidence led before a trial court in any proceeding must be carefully weighed and considered before there can be a just and equitable determination of rights of the parties.
In the instant case, the question therefore is whether the Tribunal did not evaluate the evidence adduced by the parties before it. In its judgment, the Tribunal first considered the unpleaded Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) which were earlier admitted in evidence inspite of strenuous opposition and came to the conclusion, rightly in my view, that no probative weight could be put on them. This is how it should be because the position of the law is that matters not pleaded go to no issue at the trial. And even when such matters have been wrongly admitted in evidence, the trial court should disregard them as irrelevant and decide the case on legal evidence. See Ogboda v. Adulugba (1971) 1 All NLR 68 at page 73; Olukade v. Alade (1976) 2 SC 183. The Tribunal did not stop there, it went further to consider and evaluate the evidence adduced before it by the parties. At page 370 of the printed record the Tribunal said:
“Assuming our views above are wrong, which we do not concede, we therefore reflect on the evidence adduced before us.”
The Tribunal then evaluated the evidence before it as given by the witnesses. Among the appellants’ witnesses were PW1 and PW2 who were prominent and vital witnesses. The Tribunal considered the evidence of PW2, who analysed the figures in the result forms handed over to him by PW1. The said result sheets or forms did not originate from PW1 who himself collected them from ANPP agents in the various wards and Gamaltu Local Government as he testified in his own evidence. PW1 was the state agent of ANPP. The party agents who handed the forms to PW1 did not give evidence to link the said forms with what PW1 handed over to PW2. Under cross-examination, PW2 admitted that he did the analysis of the forms without contacting the party’s agents from whom the forms originated. He also admitted under cross-examination that he did not verify the correctness of the forms by comparing them with the result of other political parties, nor with those of INEC, nor did he interview his polling agents at the polling centres, the ward centres and at the Local Government level. PW2 further admitted that he never verified all the figures and he only did what he was told to do.
The Tribunal also considered the evidence of the defence witnesses, namely DW, DW7, DW8, DW13, DW14 and DW15 in relation to exhibits 36, 39, 40, 60, 61, 62 and 63, who denied being the authors of the said exhibits. Similarly, INEC officials denied knowledge of the said exhibits produced by the appellants. On the burden of proof as to who were the authors of the said exhibits, the Tribunal came to the conclusion and found that the appellants had not discharged the onus on them. The Tribunal also considered the evidence of DW2, the Assistant Commissioner of Police, Gombe State, who gave evidence about the security situation in the State before, during and after the said elections, and said that security was well organised and sustained, and that he neither received any report of pandemonium or disruption or riot anywhere in Gombe State, especially in Akko Local Government Area. He also testified that he did not receive any report of use of fake ballot papers or result forms.
The evidence of DW9 was equally illuminating. He cast his vote in Deba ward on that day. He confirmed that the total votes scored by ANPP was 468,273, while PDP scored 494,562 votes as shown in Form EC8B(1), exhibit 141. The Tribunal in its assessment and evaluation of the evidence adduced before it in respect of Akko Local Government Area, accepted the testimonies of these defence witnesses and found as a fact that the election in that Government Area was peaceful, free and fair. The Tribunal also considered the evidence of DW16 and DW17. DW16 was from Tumu ward of Akko Local Government Area and also a member of ANPP and testified among other things that it was untrue that ANPP members were driven out from voting in that area and asserted that he voted there. Also DW17, from Kashere ward of Akko Local Government Area of the State testified that he voted in that ward and that members of PDP did not drive out any ANPP member from voting in that ward.
In its assessment and evaluation of the totality of the evidence adduced before the Tribunal, it stated and followed the general principles for appraisal and evaluation of evidence in civil proceedings as postulated by the Supreme Court in the case of Mogaji v. Odofin (supra), at page 373 of the printed record. It has this to say:
“We will have to state the general principles for assessing evidence which this Tribunal followed. It is the one set out by the Supreme Court in A.R. Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91. And that is, we have put the totality of (the) testimony adduced by both parties on the imaginary scale and see which is heavier on either side. In deciding this, we take into account the quality or probative value of the testimony of the witnesses and not the number of witnesses called. Vide also Woluchem v. Gudi (1981) 5 SC 291 at 306 – 310 per Nnamani, JSC and Magnus Eweka v. Bello, No. 90/1979 of 30/1/81 Per Kayode Eso, JSC.”
Having stated as above and appraised and evaluated the evidence, the Tribunal found as a fact that the votes credited to both parties therein are not cooked up and incredible. It believed the evidence of DW1 to DW17 and asserted that their testimonies were more reliable and probative than those of PW1 to PW17. It also found as a fact that 494,562 votes scored by PDP and 468,273 votes scored by ANPP were in order, based on the evidence before it.
The Tribunal accordingly dismissed the appellants’ petition and held that the 1st respondent was elected or returned, while the 1st appellant was not duly elected. In my candid view, the Tribunal made far-reaching findings of fact after assessment and evaluation of the evidence before it. In Salako & Ors. v. Dosunmu (1997) 8 NWLR (Pt. 517) 371; (1997) 7 SCNJ 278, it was held that it is a wrong approach for a trial court to make findings of fact without assessment and evaluation of evidence placed before the learned trial Judge.
It is an established principle of law that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. See Awoyale v. Ogunbiyi (No.2) (1986) 2 NWLR (Pt. 24) 626; (1986) 4 SC 98 at 120; Sha (Jnr:) v. Kwan (2000) 8NWLR (Pt.670) 685; Woluchem v. Gudi (1981) 5 SC 291. In Shell Petroleum Development Co. (Nig) Ltd. v. Otoka (1990) 6 NWLR (Pt.159) 693 at 709, Omosun, JCA, stated the principle thus:
“It is now well settled that a Court of Appeal does not interfere with the findings of the court of trial for the mere sake of interference unless they are perverse. It is much more difficult when such findings are based on the credibility of witnesses who were never before the Court of Appeal because the court had not the advantage of hearing and seeing them and watch their demeanour. That is the preserve of the court of trial. It is however, the law that where the question is as to the proper evaluation of their evidence and the inference to be drawn from the proved facts, the Court of Appeal is in as good a position as the court of trial. See Fatoyinbo v. Williams (1956) SCNLR 274; (1956) 1 FSC 87.”
In the instant case, the findings of the Tribunal as a trial court in its own right cannot be regarded to be perverse as they are based on the credible evidence before it. Therefore this court has no reason to interfere with the findings of fact. I therefore, accept the views of the Tribunal. The argument of the learned Senior Advocate for the appellants is discountenanced. I hold that the Tribunal adequately and properly appraised and evaluated the evidence adduced before it. Consequently, this issue is resolved against the appellants.
In view of the decision I will now reach in this appeal, I do not think it is necessary to consider the respondent’s notice filed by the 1st respondent.
In the final result, I am of the calm view that this appeal lacks merit. It is hereby dismissed with N10,000.00 costs to each set of the respondents to be paid by the appellants.
AKINTAN, J.C.A.: I have read the leading judgment, written by my learned brother, EKPE, JCA just delivered. The facts of the case and all the issues raised in the appeal are well set out and fully discussed in the said judgment. I entirely, agree with his reasoning and the conclusions reached therein which I hereby adopt.
The main contention in the appeal is whether the appellants led sufficient credible evidence at the trial to warrant turning around the results of the election declared in favour of the 1st respondent by INEC. The result as declared by INEC gave the 1st respondent 494,562 votes as against 468,273 votes credited to the 1st appellant.
The margin was therefore 26,289 votes. All that the appellants needed to prove was to ensure that 26,289 votes plus one vote are subtracted from the votes credited to the 1st respondent. But in their efforts to prove this, they relied principally on the evidence led by PW1 and PW2, their two principal witnesses. They over looked the point that these two witnesses were not on the field, where the results being challenged were counted and entered on the forms brought to the PW1 and later passed on to PW2. The evidence relied on by PW1 and PW2 are therefore what they were told by the witnesses (i.e. their agents) who were not called to give evidence. The correct evidence in this respect ought to come from the polling agents, who received the forms from INEC polling officials and in whose presence the INEC officials prepared and signed the forms on which the disputed figures were written: (See Omoboriowo v. Ajasin (1984) 1 SCNLR 108.
For the above reasons and the fuller reasons given in the leading judgment, I agree that there is no merit in the appeal. I accordingly dismiss it with costs as assessed in the leading judgment.
FABIYI, J.C.A.: I had a preview of the judgment, just delivered by my learned brother, EKPE, JCA. I agree with his reasons leading to the conclusion that the appeal is devoid of merit and should be dismissed.
Sequel to the fuss generated in this appeal, I wish to chip in a few words of my own in support. The background facts on which the appeal is predicated as well as the issues for determination have been carefully reflected in the judgment of my learned brother. I do not need to restate same.
The appellants specifically and expressly pleaded the set of forms which are EC8A(1), EC8(B), EC8(C), and EC8(D) as being the launching pad of their petition. Curiously, at the trial, they sought to tender Forms EC8A(1), EC8B(1) and EC8C(1) EC8D(1). Despite the fact that the respondents resisted, the trial Tribunal inadvertently admitted them as exhibits, but disregarded them when it wrote its judgment under attack. I am of the considered view that the Tribunal was on a firm footing in disregarding the unpleaded documents.
They went to no cognizable issue and were rightly disregarded. Refer to Woluchem v. Gudi (1951) 5 SC 291; Enang v. Adu (1981) 11 – 12 SC 25; Olukade v. Alade (1976) 2 SC 183.
The appellant who expressly pleaded a particular set of election forms should not have, in the first instance, been allowed to tender another set of forms. That was not fair to the respondents who should not be taken by surprise. The appellants should not have been allowed during the trial to rely on other documents different from those specifically pleaded by them. I agree with Mr. G. O. Okafor, SAN, that the latin maxim – “expressio unius est exclusio alterius” applied. See Shell Petroleum Nigeria Co. Ltd. v. Olarewaju (2002) 16 NWLR (Pt.792) 38 at 62. All I have tried to show is that appellants’ complaint on the point rests on a sinking sand.
The next point which I desire to touch upon briefly is the attempt by the appellants to impugn the conduct of the 3rd respondent’s officials to wit – 5th to 17th respondents. They were accused of unjustified reduction of 1st appellant’s votes and undue jacking up of 1st respondent’s votes. These allegations fall in realm of criminal offences which should be proved beyond reasonable doubt as dictated by section 138(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. It is not sufficient to merely attempt to cast aspersion. There must be concrete proof. Refer to Nwobodo v. Onoh (1984) 1 SCNLR 1 at 32. There is the presumption, a rebuttable one, that the result declared by the 3rd respondent – INEC is correct and authentic. The onus is on the appellants who deny the correctness and authenticity to rebut the presumption. Since the allegation is one of crime against 3rd respondent’s officials, the rebuttal must be proved beyond reasonable doubt.
The trial Tribunal found that the appellants did not prove their case even based on preponderance of evidence vide section 135(1) Evidence Act, talkless of being proved beyond reasonable doubt in consonance with section 138(1) Evidence Act. Upon an exquisite consideration of the rationale of the Tribunal Chairman and members, I am unable to fault them.
The appellants tendered exhibits A to A10, B, C, N23. They called PW.2 who never compared them with those of other parties or even those of INEC to analyse the said documents. They claim that they had proved case of jacking up of votes, reduction of votes by collation officers. They did not show from the polling booths to Ward collation centres and Local Government collation center how reductions, additions and jacking up of votes occurred. Such is tantamount to mere casting of aspersion which is not backed by solid evidence.
In a rather subtle manner, the appellants desire that this court should embark upon cloistered justice to independently examine exhibits dumped on the trial Tribunal by them. Such is not right. Refer to Duriminiya v. Commissioner of Police (1961) NNLR 70; Queen v. Wilcox (1961) 2 SCNLR 296, Okoya v. Santili (1994) 4 NWLR (Pt. 338) 256, 303. In short, the appellants have failed to show the real impact of their complaint on the final result declared by INEC.
The last point I wish to comment upon briefly is that relating to proof beyond reasonable doubt. The locus classicus on same is the case of Mogaji v. Odofin (1978) 4 SC 91 at 93. Further pronouncement on the point was made by the Supreme Court in the case of Bello v. Eweka (1981) 1 SC 101. Evidence with probative value on either side will be put on an imaginary scale. The Tribunal demonstrated clearly that the evidence of the respondents out-weighs that of the appellants. I am unable to fault the trial Tribunal. For the reasons adumbrated above and of course the fuller ones contained in the judgment of my learned brother, I, too, hereby dismiss the appeal. I abide by all consequential orders therein contained; that relating to costs inclusive.
ONNOGHEN, J.C.A.: I have had the benefit of reading in advance, the lead judgment of my learned brother, EKPE, JCA, just delivered.
I am in complete agreement with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
Learned Counsel for the appellants have submitted, by way of summary, that: –
(1) The Tribunal was in error, when it refused to evaluate the documents on the ground that the said documents were not pleaded, when they were so pleaded and the respondents were not taken by surprise but fought the documents during trial.
(2) The non-evaluation of the said documents by the Tribunal has a grave error in that the case for the petitioners was not considered. That the lapse be remedied by this court which is in the same position as the trial Tribunal to consider the documentary evidence and determine, the sets of documents to be accredited as genuine and accorded probative value.
(3) That when the two sets of documents are considered against the totality of the evidence before the Tribunal this court can easily come to the conclusion that the petitioners were the ones that won the election in question by a majority of lawful votes.
(4) The conclusion of the Tribunal that case of the petitioners disclosed allegation of crimes and therefore, ought to have been proved beyond reasonable doubt was incorrect and unsupportable by the facts and law. That when the complaint in a petition is hinged on the issue of which party scored majority of lawful votes, the standard of proof is that of balance of probabilities; and
(5) That on a proper re-evaluation of the facts, judgment ought to have been entered for the petitioners/appellants.
They therefore urged the court to allow the appeal and grant the reliefs sought in the petition of the appellants.
From the reproduction of the above submissions, it is clear that the bulk of the submission is on the non-evaluation of the documentary evidence tendered by the appellants at the trial. It must however, be noted that evidence includes documents, oral testimonies and, at times, physical objects. So when we talk of evaluation of evidence, we are infact, talking of a consideration of the totality of the evidence produced before the trial court either by that court or the Court of Appeal.
Going through the judgment of the lower court at pages 359 to 373 of the record, it is clear that though the court did not evaluate the documents complained of, it definitely evaluated the testimonies of the witnesses before it and duly ascribed probative value to them before arriving at its conclusion.
That apart, the Tribunal did give reasons why an evaluation of the said documentary evidence would be an exercise in futility: the fact that though the documents were tendered and admitted in evidence as exhibits, they were different from the documents pleaded by the appellants and thereby ground to no issue.
In this respect, the Tribunal has the following to say, inter alia, in its judgment.
“In the first place, what the petitioners plead is FORMS EC8A, EC8B, EC8C and EC8D and see paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 of their pleadings, they use these forms to prove ANPP and PDP votes in the following Local Government Areas:-
On the other hand, what was pleaded by the respondents, particularly by 1st respondent, in reply to the petition, especially in paragraphs, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, are EC8A(1) EC8B(1), EC8C(1) and EC8B(1). These in our view, are not the same as those pleaded by the petitioners. In Law, parties are bound by their pleadings.
Later, the petitioners brought the. Although, there was objection from the other side, yet we admitted them. Their admission is one thing but the weight to be attached to them is another…” See pages 365 and 366 of the record.
Continuing at page 367 of the record, the Tribunal stated thus;
” … No party will be allowed to raise at the trial of the suit an issue which has not been pleaded … the plaintiff or petitioner will be permitted to call evidence to support his pleadings; any evidence which is adduced and which is contrary to his pleadings must be expunged when considering the case; it is not open to a party to depart from his pleadings and put up an entirely new case at the hearing, nor can a Judge depart from the case as pleaded by the parties. The petitioners did not plead FORMS EC8A(1) – EC8D(1) and sought to rest their case on the respondents pleaded forms EC8A(1), EC8B(I), EC8C(1) and EC8D(1). It is interesting to note that most of PW1 – PW17 herein based their evidence on this unpleaded forms …”
Concluding at page 368, the Tribunal held thus:
“In our view therefore those unpleaded Forms are defective and fatal, and no probative weight could be put on them.”
The learned Senior Advocates of Nigeria for the appellants have referred this court to paragraph 2 of the petitioners’ reply to the 1st and 2nd respondents’ replies to the petition in which the petitioners pleaded thus:
“2. The petitioners admit that the forms issued by the 3rd respondent for the conduct of the Governorship elections were form EC8A(1) being the result sheet for entering of result of polls at the various polling units. Form EC8B(1) being the collation sheet for the ward levels, Form EC8C(1) being the collation sheet for the collation of results at the Local Government level and Form EC8B(1) being the collation sheet for the collation of results at the State level. The petitioners say that it is these forms (being the forms used for the Governorship Election) they have referred to and pleaded in the various paragraphs of their petition but which they incorrectly referred to as Forms EC8A, EC8B, EC8C and EC8D. The said Forms EC8A(1), EC8B(1), EC8C(1) and EC8CD(1) are hereby pleaded.”
And submitted that if the Tribunal had averted its mind to that paragraph of the petitioners’ reply, it would not have come to the erroneous conclusion that the appellants never pleaded the forms in issue but different forms.
I must confess that the argument as presented is beautiful, but the question is what is the legal effect of the above quoted paragraph 2 of the said reply on the paragraphs of the petition which pleaded the forms differently, in other words can it legally be said that the said paragraph 2 of the reply is a substitute for the paragraphs of the petition which pleaded the different forms as found by the Tribunal? Better still, can the said reply amend the petition to the extent of the forms pleaded therein? I am of the firm view that, the said paragraph 2 of the reply does not amount to an amendment of the petition, since there is no record of an application to that Tribunal for the said amendment nor is there any record of a grant of such. In short, it is my view that the said paragraph 2 attempted to smuggle in the different forms, through the back door without a formal application for leave to amend the necessary paragraphs of the petition. Since no such application was presented, nor any granted by the Tribunal, it is my view that the forms as pleaded in the paragraphs of the petition remain the case of the appellants and the Tribunal was right in so holding.
On the sub-issue as to whether a court that admitted some documents as exhibits can turn round to refuse to use the documents or evaluate them, I agree with the Tribunal that an issue of admissibility of evidence is a different thing from that of weight to be attached to the admitted evidence. It is trite law that a court is expected in all proceedings before it to admit and act only on evidence which is admissible in law, and where the court inadvertently admits inadmissible evidence, it has the duty, generally not to act upon same – See Olukade v. Alade (1976) 2 SC 183; Ogboda v. Adulugba (1971) 1 All NLR 68 at 73 per Coker, JSC as he then was.
On evaluation of evidence other than the documents tendered and admitted, I had earlier stated that the Tribunal did evaluate same before it came to its conclusion. At page 368 of the record, the Tribunal said:
“Assuming our views above are wrong, which we do not concede, we therefore reflect on the evidence adduced before us” and proceeded to do exactly that and concluded thus: –
‘From the foregoing, we hold that the votes credited to both parties therein are not cooked-up and incredible. Vide paragraph 1(c) of the petition papers and piece of evidence of DW1 – DW17 whom we believe and the heaps of exhibits herein. And to us, their testimonies are more reliable and probative than those of PW1 – PWI7. In other wards (sic) we have found that 494562 votes scored by PDP and 468273 for ANPP are in order, base (sic) on the evidence before us; i.e. the total votes received by the 1st respondent in the Gubernatorial Election for Gombe State, held on 19/4/2003 is 494562 and that the total votes receipt by the 1st petitioner is 468273.”
On the other hand, apart from the fact that the documents relied upon by the appellants in attempt to prove their case were not pleaded as found by the lower court, they were not tendered by those who made them – the party agents, who signed them and the INEC officials who completed and signed them. These are the proper persons to tender the documents in law because they are the makers. If they had tendered the documents one would have said that the documents are evidence of what they state. But they were tendered by a person who never made them nor was present when they were made. In law the documents are, at best, pieces of documentary hearsay and it is trite law that hearsay evidence is inadmissible in proof of any cause.
That apart, PW2 who computed the figures cannot vouch for the authenticity of the documents he used in his computations. He did not make them i.e. collect the data. His evidence, for whatever it is worth, is nothing but hearsay upon hearsay.
In short, what we have in this case is allegations made by the appellants without an iota of legally acceptable evidence in proof.
To that extent the issue of prove beyond reasonable doubt becomes academic – there being no legally acceptable evidence on record why bother yourself on whether the standard is that of balance of probabilities or prove beyond reasonable doubt. The question remains, where is the evidence? On documentary hearsay see Myers v. DPP (1965) A.C. 1001 at 1024; (1964) 1 All ER 877, (1964) 3 INLR 146.
For these and other reasons contained in the said lead judgment of EKPE, JCA., I too, dismiss the appeal as lacking in merit and award the sum of N10,000.00 as cost to each set of the respondents.
Appeal dismissed.
JEGA, J.C.A.: I read in draft, the lead judgment just delivered, by my learned brother, EKPE, JCA, who dealt exhaustively with the issues raised in this appeal as formulated by the parties. The reasoning and conclusion of my learned brother, accord with my thoughts on the appeal, during the conference on the appeal leading me to agree with the judgment.
Notwithstanding the above, I make a few remarks and comments on the appeal.
The crucial or dominant issues in controversy between the parties is whether the trial Tribunal was right in its conclusion that the appellants did not base their evidence at the hearing of the petition on the result forms they pleaded and were admitted in evidence by the Election Tribunal and whether the Election Tribunal properly evaluated the evidence adduced before it by the parties and came to the right conclusion.
In paragraph 25(a) of the appellants’ petition, the appellants pleaded Forms EC8 A, EC8 B, EC8 C and EC8 D. However, at the trial, the appellants instead of tendering the result forms, they pleaded turned around and sought to tender forms EC8 A(1), EC8B(1), EC8C(1) and EC8D(1) which were not pleaded by them. It is apparent that Forms EC8 A, EC8 B, EC8 C and EC8D, which the appellants pleaded are distinct and different from the unpleaded forms EC8A(1), EC8B (1), EC8C(1) and EC8D(1). At the trial, when the appellants sought to tender these unpleaded forms the respondents vehemently opposed their being tendered, the Tribunal in its ruling admitted them in evidence. However, in its judgment, the Tribunal discountenanced the forms. It is basic, but a fundamental principle of law that parties aire bound by their pleadings – Adesoji Aderemi v. Adedire (1966) NMLR 398. Indeed, it is also the law that any evidence led by a party which is at variance with his pleadings ought to be discountenanced and disregarded as going to no issue as held in the following cases: Aniemeka Emegokwe v. James Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 5 SC 291; Iwuoha v. NIPOST (2001) 8 NWLR (Pt.822) 308; Akpapuna & Ors. v. Obi Nzeka & Ors. (1983) 2 SCNLR 1; (1983) 7 SC 1.
It therefore behold on the parties to confine their evidence to issues raised on their pleadings. If they deviate from their pleadings and lead any evidence on a point not pleaded, that point does not become an issue, unless there is first an amendment to those pleadings pursuant to the relevant applicable rule of court. The trial court or Tribunal has a duty to reject any evidence which is contrary to the pleadings. See National Investment & Properties Ltd. v. Thompson Organisation Ltd. (1969) 1 NMLR 99.
Where inadmissible evidence as in the instant case of unpleaded document which ought to be pleaded is admitted in evidence by a trial court or Tribunal, it is imperative when it comes to consider its judgment to treat such inadmissible evidence as if it had never been admitted i.e. to reject it. In Agbaje v. Adigun (1993) 1 NWLR (Pt.269) 261, the Supreme Court held that, when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered. The apex court went further to hold that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which a court can make a finding of fact. In the instant appeal, it is quite right for the Tribunal to have rejected Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) by not ascribing any probative weight to them, when it was considering its judgment.
The trial Tribunal correctly stated the law at page 369 of the record of appeal and at page 370 the Tribunal states thus:
“We therefore hold that these statements of law have shown the importance of pleadings in civil litigation and since the civil procedure apply to election cases, great care must therefore, be taken in drafting and replying election petitions. In our views therefore, those unpleaded Forms are defective and fatal and no probative weight could be put on them.”
I endorse the views of the Tribunal in its entirety and hold that its restatement and applying the law as it is cannot be impeached.
On the issue of non-evaluation of evidence, it is crystal – clear from the printed record that the trial Tribunal did not leave anyone in doubt that it considered and evaluated the evidence adduced before it by the parties. At page 370 of the printed record the Tribunal states:
“Assuming our views above are wrong, we therefore reflect on the evidence before us.”
The Tribunal then proceeded to evaluate the evidence before it as given by the witnesses, this can be seen clearly on pages 370 – 373 of the printed record.
The Tribunal assessed and evaluated the totality of the evidence adduced before it. It stated and followed the general principles for appraisal and evaluation of evidence in civil proceedings as set-out by the Supreme Court in A. R. Mogaji & Ors. v. R. Odofin & Ors. (1978) 4 SC 91 at page 373 of the printed record, the Tribunal states thus:
“We have put the totality of the testimony adduced by both parties on the imaginary scale and see which is heavier on either side. In deciding this, we take into account, the quality or probative value of the testimony of the witnesses and not the number of the witnesses called. Vide also Woluchem v. Gudi (1981) 5 SC 291 at 306 – 310 per Nnamani, JSC and Magnus Eweka v. Bello, No. 90/1979 of 30/1/81 per Kayode, JSC.”
From the above therefore, there is no iota of doubt that the lower Election Tribunal has properly evaluated the evidence adduced before it, by the parties and came to the right conclusion. For these reasons and the more encompassing reasons contained in the judgment of learned brother, Ekpe, JCA, I too, will dismiss the appeal and abide by the order made on costs.
Appeal dismissed.
Appearances
J.B. Daudu, SAN (with him, Aliyu Umar, Esq., OJ. Habib, Esq.,
C. Ubale, Esq. and H. Abodu, Esq.)
E.C. Ukala, SAN (with him, J.M. Lidans, Esq., M.S. Rilama, Esq., L.C. Okorie, Esq. and R. Attah, Esq.) for the 2nd AppellantFor Appellant
AND
Olajide Ayodele, SAN (with him, Z.M. Umar, Esq., D.M.
Mangaji, Esq. and A. Duro, Esq.) – for the 1st Respondent
K.T. Turaki, SAN (with him, Jerry Owe, Esq., A. Mallami, Esq.
and AT. Shehu, Esq.) – for the 2nd Respondent
G. Ofodile Okafor, SAN (with him, Musa A. Umubi, Esq.,
C.L.O. INEC, Gombe State and R. Ekeh, Esq.) – for the 3rd to 17th RespondentsFor Respondent
